A.

CONCEPTS
B. RELATIONSHIP BETWEEN INTERNATIONAL AND PHILIPPINE DOMESTIC LAW
C. SOURCES OF INTERNATIONAL LAW
D. SUBJECTS OF INTERNATIONAL LAW
1. States
2. International Organizations
3. Natural Or Juridical Persons
4. Others
E. JURISDICTION OF STATES
1. Basis of Jurisdiction
2. Exemptions from Jurisdiction
F. DIPLOMATIC AND CONSULAR LAW
1. Diplomatic Law
2. Consular Relations
G. NATIONALITY AND STATELESSNESS
H. GENERAL PRINCIPLES OF TREATY LAW
I. DOCTRINE OF STATE RESPONSIBILITY
K. REFUGEES
L. TREATMENT OF ALIENS
M. INTERNATIONAL HUMAN RIGHTS LAW
1. The Universal Declaration of Human Rights (“UDHR”)
2. The International Covenant on Civil and Political Rights (“ICCPR”)
3. The International Covenant on Economic, Social and Cultural Rights (“ICESCR”)
4. Categories of Armed Conflict
5. Core International Obligation of States
6. Principles of International Humanitarian Law
7. Law on Neutrality

N. LAW OF THE SEA

1. Baselines
2. Archipelagic States
3. Internal waters
4. Territorial Sea
5. Contiguous Zone
6. Exclusive Economic Zone (EEZ)
7. Continental Shelf
8. The International Tribunal for the Law of the Sea (ITLOS)
Public International Law is a body of principles, norms and processes which regulate the relations of
States and other international persons, and governs their conduct affecting the interests of the
international community of States as a whole.

Public International Law

1. It governs the relation of sovereign States and other entities with an international personality.
2. They are generally accepted principles of public international law, giving to the subject an
international nature.
3. Sanctions may be in the form of peaceful remedies. Example: diplomatic negotiation, mediation,
conciliation, arbitration, diplomatic efforts, settlement by the international court of justice.
In extreme cases, forcible measures may be employed like war and reprisal

Private International Law is the body of rules of the domestic law of a State that is applicable when a
legal issue contains a foreign element, and it has to be decided whether a domestic rule should apply
foreign law or relinquish jurisdiction to a foreign court [AUST].

Private International Law

1. Deals with private individuals.
2. It is really municipal or national in character because each State has its own conflict rules.
3. Relief or reliefs prayed for may be obtained from municipal tribunals

Public International Law Private International Law

Nature International in nature. National or

municipal in character
Sources 1. Treaties and international Domestic laws for legal
conventions issues containing foreign
2. Customary international law elements
3. General principles
of law [Art.
38(1), ICJ
Statute]

Subjects 1. States; Individuals (private persons)

2. International organizations;
3. Individuals

BASIS OR FOUNDATION OF PUBLIC INTERNATIONAL LAW

In actual practice, common consent and natural moral law are determinative factors in interstate
relationship. This is founded on the reason that common consent necessarily commands the faithful
compliance of commitments made, or arrived at, in the course of a common agreement. There are
three schools of thought on this matter:
 (1) Natural Law School of Thought - which claims that the basis is the natural common law, which, in
turn, is based on the rule of human conduct implanted by the Creator in the very nature of man in his
conscience to do what is right and to avoid what is evil.
(2) Positivist School of Thought - According to this school of thought, the basis is the common consent
of States.
(3) Eclectic School of Thought - This school of thought holds the view that Public International Law is
premised both on the natural moral law and on common consent.

Q - Why is public international law observed?

A - States observe public international law because: (a) they believe in the reasonableness of the law
of nations; (b) they fear reprisal from the other States; and (c) they fear being unconventional.

Q - Why is public international law observed by private individuals?

A - Private individuals observe public international law because as rational beings, they realize that the
laws of nations are founded on natural moral law and on common consent and that these are for their
own good. In fact, it will be observed that there is an increasing diplomatic and economic intercourse
among nations represented by their respective heads of states and ambassadors, As the saying goes,
“No man is an island" and each country needs the other not only in terms of goods, products and
commodities of all kinds that may be needed in the pursuit of their respective business or trade but
also in terms of technology and funding.

Two Special Types of Obligations under Public International Law:

1. Obligations Erga Omnes

Obligations Erga Omnes are “obligations of a State towards the international community as a whole,”
which are the “concern of all States” and for whose protection all States have a “legal interest”
[Barcelona Traction Case, (ICJ, 1970)]

Erga Omnes literally means “flowing to all.”

Examples
 Prohibition of acts of aggression;
 Prohibition of genocide;
 Obligations concerning the protection of basic human rights [see also Barcelona Traction Case (ICJ,
1970)];
 Obligations relating to self-determination [see also East Timor Case (ICJ, 1995); Palestinian Wall
Advisory Opinion (ICJ, 2004)];
 Obligations relating to the environment of common spaces. [Institut de Droit International (“IDI”),
Resolution on Obligations erga omnes in International Law (2005) (hereinafter “IDI Resolution”)]

Standing to Bring Suit: Other States have standing to bring a claim to the International Court of
Justice (ICJ) or other international judicial institution in relation to a dispute concerning compliance
with that obligation [Art. 4, IDI Resolution].

2. Jus Cogens
A jus cogens is a norm accepted and recognized by the international community of States as a whole
as a norm from which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character [Art. 53 of the Vienna Convention on the
Law of Treaties (hereinafter referred to as “VCLT”)]

Jus Cogens is also known as a peremptory norm of general international law.

Examples
 The prohibition against the use of force under the UN Charter [Nicaragua Case (ICJ, 1986)];
 Law on genocide;
 Prohibition against apartheid;
 Self-determination;
 Crimes against humanity;
 Prohibition against slavery and slave trade;
 Piracy [BROWNLIE; MAGALLONA].

Erga Omnes Jus Cogens

As a concept Pertains to the non- Pertains to the legal interest of a State in the violation of a
derogability of a norm and norm.
the validity of rules and acts
that conflict with it

Effect All States have standing to It is an obligation that cannot be contravened in any matter.
bring a suit to enforce that A treaty will be
obligation. void: “A treaty isvoid if, at the time of its conclusion,
it conflicts with aperemptory norm of general international
law”(i.e. a jus cogensnorm) [Art. 53, VCLT].
Does not confer jurisdiction: In Armed Activities, it held that
the factthat a rule has thestatus of jus cogens does not confer
upon the Court ajurisdiction which itwould not otherwise
possess (ArmedActivities on theTerritory of the Congo
(New Application: 2002)(Democratic Republic of theCongo v.
Rwanda),

Sources 1.Erga Omnium: From From customary international law (See later part of Reviewer).
custom, it is one that is There must be state practice and opinion juris.
owed to all. All States have
the standing to bring suit.
It can be that there is a jus
cogens norm that is also
erga omnes.
Jus Cogens norms give rise
to erga omnes obligations.
2. Erga Omnes Partes: From
a multilateral Treaty. All
parties to the treaty have
standing to bring suit
 Caveat on examples of the two special types of obligations:
There is no authoritative listing of jus cogens norms and erga omnes obligations. The commentaries of
the ILC provide that they didn‟t want to make it an exclusive list. Only the prohibition on the use of
force has been declared by the ICJ as a jus cogens norm.

Concept of Ex Aequo et Bono (From the Article 38 (2) of the ICJ Statute)
This means, literally, “what is equitable and good.” It denotes that a court may decide a case on the
basis of justice and equity, and not be bound by technical legal rules [PELLET].

The court may apply this standard to decide a case when the parties to the dispute agree thereto [Art.
38(2), ICJ Statute]. However, this should not be confused with the ability of the ICJ to apply equitable
principles in a case.

B. RELATIONSHIP BETWEEN INTERNATIONAL AND PHILIPPINE

DOMESTIC LAW

InternationalLaw DomesticLaw

Scope The conduct of States andinternational Applies to asingle countryor nation,within

organizations, their relationswith each adetermined territory andits inhabitants
otherand, in certaincircumstances, their
relationswith persons,natural or
Juridical [ALIThird Restatement]

How made Through consent, adopted byStates Issued by apolitical superior for
as acommon rule of action observance

Relations Regulates relations of Regulates relations of individuals among

Regulated States andother international themselves orwith their ownStates
persons

Sources Derived principally from treaties, Consists mainly of enactments from the
international custom andgeneral lawmaking authority of each State
principles of law[Art. 38(1), ICJ
Statute]

Settlement of By means ofState-to-State transactions By means oflocal administrativeand

Disputes judicialprocesses

Responsibility Collective responsibility because it Generally

for attaches directly to the State and not to its
entails
nationals
Wrongful Acts individual responsibility in case of
breach
 Different Theories of the Relationship between International Law and Domestic Law
a. Monist View
International and municipal legal systems are fundamentally part of one legal order. This view
considers international law to be superior, with municipal law being a mere subset of international law.
International norms are thus applicable within municipal systems even without some positive act of the
state

b. Monist-Naturalist View
Public international law is superior to municipal law, and both systems are but a part of a higher system
of natural law.

c. Dualist View
International law and municipal law are separate systems. Only those issues affecting international
relations are within the scope of international law.

Before an international norm can have an effect within a municipal legal system, that norm must be
transformed, or adopted into the municipal system through a positive act by a state organ. Customary
international law and general principles of international law, however, need not be transformed or
adopted.

d. Coordinationist View
International law and municipal law operate in different spheres. Hence, the laws themselves do not
conflict. However, there may be a conflict in obligations imposed by either system. In such a case, the
result is not the invalidation of national law, but responsibility under international law on the part of that
State.

How International Law Becomes part of Philippine Law

1. Doctrine of Incorporation: The Philippines adopts the “generally accepted principles of
international law” (customary international law) as part of the law of the land [Sec. 2, Art. II, 1987
Constitution]. They are deemed as national law whether or not they are enacted as statutory or
legislative rules [MAGALLONA].
By the doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own laws. [Tañada v.
Angara, G.R. No. 118295. May 2, 1997]

2. Doctrine of Transformation: Treaties or international agreements shall become valid and

effective upon concurrence by at least two-thirds of all the Members of the Senate [Sec. 21, Art.
VII, 1987 Constitution]. These rules of international law are not part of municipal law unless they
are transformed via legislation [MAGALLONA].

Special Case for the presence of certain foreign troops in the Philippines [Sec. 25, Art. XVIII,
1987 Constitution]
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other contracting State.

Philippine Domestic Law in Public International Law

General Rule: A State cannot invoke its own national law to resist an international claim or excuse
itself from breach of duty under international law [Art. 6, VCLT; Polish Nationals in Danzig Case (PCIJ,
1932); Art. 32, Articles on State Responsibility (hereinafter “ASR”)].
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
This rule is without prejudice to article 46 [Art. 27, VCLT].

Exception: A State may invoke the fact that its consent to be bound by a treaty has been expressed
in violation of a provision of its internal law regarding competence to conclude treaties as invalidating
its consent if that violation was manifest and concerned a rule of its internal law of fundamental
importance [Art. 46, VCLT].

RECOGNITION OF STATES
Recognition of a State - Recognition is the act of acknowledging the existence of a State, a
government or belligerency. It is a political act which is exercised by the political department of the
State. It is therefore discretionary on the part of a State whether it desires to recognize another State.
There are two theories on recognition: (1) the majority view, also known as the declarative view, which
holds that recognition merely affirms an existing fact. (i.e., if a State possesses all the essential
elements it depends on the recognizing State if it will affirm or not that such State being recognized
has indeed all the essential elements of the State; (2) the minority view, also known as the constitutive
view, which holds that recognition is compulsory and legal. This means that the recognizing State may
be compelled to extend recognition if the elements of a State are established.

What is required in order that a government may be recognized?

The government must enjoy the support and popular consent or approval of the people and it must
show willingness and ability to discharge its international obligations.

Different doctrines regarding recognition of any government

(1) Under the Stimson Doctrine, no recognition shall be extended to a government established by and
through external aggression.
(2) Under the Tobar/Wilson Doctrine, recognition of government which is established by revolutionary
means shall not be extended until the said government shall have established a constitutional
reorganization and shall have freely elected its representatives.
(3) Under the Estrada Doctrine, a recognizing State will not issue a declaration giving recognition to
another government which is established through a political upheaval. Instead, it will merely accept
whatever government has effective control without making a judgment on whether the government that
is recognized is legitimate or not.

When will recognition be accorded by the recognizing State?

This is within the discretion of the recognizing State. The bulk of the practice of States probably
supports the view that governments do not deem themselves free to grant or refuse recognition to a
new State in an arbitrary manner, by exclusive reference to their own political interests and regardless
of legal principles.

Different kinds of recognition

(1) Express recognition;
(2) Implied recognition;
(3) De Facto recognition; and
(4) De Jure recognition

Distinguish de facto recognition from de jure recognition

De facto recognition does not bring about full diplomatic intercourse. It is generally provisional and it
is extended on the belief of the recognizing State that some of the requirements for recognition are
absent. It does not give title to assets of the State held or situated abroad.
De jure recognition brings about full diplomatic intercourse and observance of diplomatic immunities
and confers title to assets abroad.
 DE FACTO AND DE JURE GOVERNMENT
- A dejure government is an organized government of a State which has the general support of
its people. A defacto government is characterized by the fact that it is not founded upon the
existing constitutional law of the State. (28 C.J. 75)

Kinds of de facto government

(a) That government which gets possession and control of, or usurps, by force or by the voice of the
majority, the rightful legal government and maintains itself against the will of the latter, such as the
government of England under the Commonwealth, first by parliament and later by Cromwell as
protector.
(b) That which is established and maintained by military forces who invade and occupy a territory of
the enemy in the course of war, and which is denominated as a government of paramount force, as in
the cases of Castine, in Maine, which was reduced to British possession in the War of 1812, and of
Tampico, Mexico, occupied during the war with Mexico by the troops of the United States.
(c) That established as an independent government by the inhabitants of a country who rise in
insurrection against the parent state, such as the government of the Southern Confederacy, in revolt
against the Union during the war of secession. (Co Kim Cham [alias] Co Cham vs. Dizon and Tan
Keh, 75 Phil. 113)

Characteristics of "de facto" government of paramount force

- Its distinguishing characteristics are:
1. That its existence is maintained by active military power within the territories, and against the
rightful authority of an established and lawful government; and
2. That while it exists it must necessarily be obeyed in civil matters by private citizens who, by acts
of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for
those acts, though not warranted by the laws of the rightful government. Actual governments of this
sort are established over districts differing greatly in extent and conditions. They are usually
administered by military authority, but they may be administered also by civil authority, supported
more or less directly by military force.

Remember my discussion through question and answer in the textbook, Constitutional Law, Volume 1
Q - Corazon C. Aquino took her oath of office on February 25, 1986, the last day of a four-day "people
power" revolt. This culminated in the ouster of President Ferdinand E. Marcos. Before she took her
oath of office, she read Proclamation No. 1 wherein she declared that she and her Vice-President
were "taking power in the name and by the will of the Filipino people." Was the government under
Corazon C. Aquino a revolutionary government?
A - It is submitted that the provisional government that was established thereunder was revolutionary
in character because it was installed by the direct action of the people or by "people power." Hence, it
derived its existence and authority directly from the people themselves, not from the 1973 Constitution
which was then in existence.

Q - Was it a dejure government or a defacto government?

A - Initially, the government was a de facto government because there was no constitutional basis of
its creation, the same not having been sanctioned either under the 1935 or the 1973 Constitution.
However, the de facto government at the start acquired a de jure status when it obtained the
continuous public acceptance and support of the people and the recognition of practically all foreign
governments.

Q - If the said government is a revolutionary government, what was its effect on the Bill of Rights
under the 1973 Constitution?
A - The Bill of Rights under the 1973 Constitution was not operative during the interval between
February 28, 1986 and March 24, 1986 when the Freedom Constitution took effect by presidential
proclamation.
Q - How about the government under Gloria Macapagal-Arroyo that was established after the ouster of
President Joseph Estrada, is it de jure or defacto?
A - The Supreme Court considered it a dejure government because President Joseph Estrada already
gave up the presidency.

The Supreme Court said: "xxx Despite the lapse of time and still without any functioning Cabinet,
without any recognition from any sector of government, and without any support from the Armed
Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his
inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized
respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability
of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner's claim of
inability.
In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that
he is a President on leave on the ground that he is merely unable to govern temporarily. That claim
has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President
made by a coequal branch of government cannot be reviewed by this Court." (Underlining Supplied)

SUCCESSION OF STATE AND SUCCESSION OF GOVERNMENT

Distinguish succession of State and succession of government

SUCCESSION OF STATE
1. Political laws are abrogated while municipal laws remain in force.
2. Treaties are discontinued except those dealing with local rights and duties.
3. All rights of the predecessor State are inherited, but the successor State has the discretion to
assume or reject liabilities.

SUCCESSION OF GOVERNMENT
The State continues as the same international person except that its lawful representative is
changed. When this happens, what are the consequences? All rights of the predecessor government
are inherited by the successor. If the new government was organized due to a constitutional reform,
which is duly ratified in a plebiscite, all obligations of the predecessor are also assumed. However, if
the new government is established through violence, the new government may lawfully dishonor the
personal or political obligations of the predecessor, but not those obligations or contracts entered into
in the ordinary course of official business.

VATICAN CITY AND THE HOLY SEE

Is the Vatican or the Holy See a State?
Yes, it possesses the essential elements of a State.
REASONS:
1. There are around 1,000 people almost all of whom are individuals residing therein by virtue of their
office;
2. There is a definite territory (approximately 100 acres);
3. There is a government (under the Pope himself);
4. There is independence (the State of the Vatican City was created by the Lateran Treaty of February
11, 1929 between Italy and the Holy See. Under the terms of the Treaty, Italy "recognizes the full
ownership, exclusive dominion, and sovereign authority and jurisdiction of the Holy See over the
Vatican");
5. The Vatican City has a "sufficient degree of civilization";
6. The Vatican City has been recognized by almost all the countries of the world including Communist
Russia.
Difference between the Vatican City and the Roman Catholic Church
The Vatican City is concerned with material things and occupies a definite territory, while the Roman
Catholic Church is preoccupied with things of the soul and the spirit, hence, it is "tied to no limited
territory." Both, however, are subjects of international law; both have some international rights, the
violations of which can amount to international delicts.

Can the Holy Father, as head of the Catholic Church, enter into treaties?
Yes. As head of the Catholic Church, the Holy Father can enter into ordinary treaties for and in
behalf of the Vatican City. He may also enter into special treaties which regulates ecclesiastical
matters.

DOCTRINE OF STATE CONTINUITY

Doctrine of State continuity - Under this doctrine, a State does not lose its identity but remains one and
the same international person notwithstanding changes in the form of its Government, in its headship,
in its rank and title, in its dynasty.
Example: France which retained her personal identity from the time the law of Nations came into
existence until the present day, although she acquired, lost, and regained parts of her territory,
changed her dynasty, was a kingdom, a republican empire, again a kingdom, again a republic, again
an empire, and is now, finally as it seems a republic.

ACT OF STATE DOCTRINE

Act of State doctrine - Under this doctrine, the foreign court chooses to uphold and respect the foreign
State's act done within its territory on the reasoning that if it will not do so, it would "imperil the
amicable relations between governments and vex the peace of nations." The doctrine was applied in
the case of Banco Nacional de Cuba vs. Sabatino (376 U.S. 398 [1964]), which upheld the
nationalization of sugar produced in Cuba. This was criticized and for which reason, the U.S. Supreme
Court adopted the position formulated in "Sabatino Amendment" (22 U.S. C.A. 2370 [e] [1]), to the
effect that no court in the U.S. should decline because the Act of State doctrine seems to make a
determination on the validity of a confiscation of property by a foreign State in violation of the
principles of international law. Since then, the Act of State doctrine was abandoned by the courts. In
First National City Bank vs. Banco Nacional de Cuba (406, U.S. 759 [1965]), the U.S Supreme Court
held that the doctrine should not be applied where the Executive Branch expressly represents to the
court that the application of the doctrine would not advance the interests of American foreign policy.

ACT OF STATE DOCTRINE AS APPLIED IN CREDIT SUISSE VS. U.S. DISTRICT COURT FOR
THE CENTRAL DISTRICT OF CALIFORNIA, 130 7.3d 342, 1347-48 NIn relation to
PNB VS. U.S. DISTRICT COURT OF HAWAII 04-71843 (D.C. NO. MDL-00840-MLR) FEBRUARY 4,
2005
In this case, the Swiss assets of the Marcos estate had been frozen by the Swiss government at the
request of the Republic of the Philippines, which seeks to recover them. The class plaintiffs obtained
an injunction from the U.S. District Court of Hawaii requiring the Swiss Banks to hold the assets for the
benefit of the class plaintiffs.
The U.S. 9th Circuit Court of Appeals issued a writ of mandamus and held that the injunction violated
the Act of State doctrine, which precludes American Courts from declaring "invalid" a foreign
sovereign's official act, that is, the freeze order of the Swiss government.
The Swiss government released the funds frozen in Switzerland for transfer to the Philippine
National Bank in escrow pending a determination of proper disposal by a competent court in the
Philippines.
The said funds were deposited by the PNB in Singapore. Thereafter, the assets were forfeited to the
Republic of the Philippines following the decision of the Philippine Supreme Court.
The U.S. District Court of Hawaii ruled and ordered as follows:

1. The Philippine Supreme Court had violated "due process by any standard" and that its judgment
was entitled to no deference.
2. "Any such transfer, without first appearing and showing cause in this court as to how such transfer
might occur without violating the Court's injunction shall be considered contempt of the Court's earlier
order. Any and all persons and banking institutions participating in such transfers are hereby notified
that such transfer would be considered in contempt of the Court's injunction."
3. PNB, which was not a party to the litigation in the district court, was required to show why it should
not be held in contempt for violating the court's injunction against transfer of assets by the estate.

Hence, PNB filed a petition for mandamus in the U.S. 9th Circuit Court of Appeals to restrain the
District Court from enforcing its "Order to Show Cause" and from pursuing discovery against the Bank
officer.

This case is: PNB VS. U.S. DISTRICT COURT OF HAWAII 04-71843
(D.C. No. MDL-00840-MLR) [FEBRUARY 4, 2005)
PNB contended that the entire proceeding against it for its transfer of funds to the Republic of the
Philippines violated the "Act of State Doctrine," and that the transfer of funds was made in accordance
with the judgment of the Philippine Supreme Court.

ISSUE:
Are the orders of the U.S. District Court of Hawaii a violation of the "Act of State Doctrine."

HELD:
1. The U.S. 9th Circuit Court of Appeals held that the orders of the U.S. District Court of Hawaii had
A) To obtain assets from PNB, or to hold PNB in contempt for the transfer of those assets to the
Republic of the Philippines, the District Court necessarily held invalid the forfeiture judgment of the
Philippine Supreme Court.

B) Regarding the argument of class plaintiffs that the Act of State Doctrine is directed at the executive
and legislative branches of foreign governments and did not apply to judicial decisions; the U.S. 9th
Circuit Court of Appeals said:
(b. 1) A judgment of a court may be an Act of State.
(b.2) There was no question that the judgment of the Philippine Supreme Court gave effect to the
public interest of the Philippine Government. The forfeiture action was not a mere dispute between
private parties. It was an action initiated by the Philippine Government pursuant to its "statutory
mandate to recover property allegedly stolen from the treasury." (In re Estate of Ferdinand E. Marcos -
Human Rights Litigation, 94F 3d at 546)
(b.3) The U.S. 9th Circuit Court of Appeals had earlier characterized the collection efforts of the
Republic of the Philippines to be governmental.
(b.4) The subject matter of the forfeiture action thus qualified for treatment as an Act of State.

C) Regarding the other argument of class plaintiffs that the Act of State Doctrine was "inapplicable"
because the judgment of the Philippine Supreme Court did not concern matters within its own territory,
the U.S. 9th Circuit Court of Appeals ruled, thus:
"The act of the Philippine Supreme Court was not wholly external. Its judgment which the district
court declared invalid, was issued in the Philippines and much of its force upon the Philippine National
Bank arose from the fact that the Bank is a Philippine Corporation. (Callejo vs. Bancomer S.A. 764 F
2d 1101, 1121-25 (5th Cir. 1985)
"Even if we assume for purposes of decision that the assets were located in Singapore, we conclude
that this fact does not preclude treatment of the Philippine judgment as an act of State in the
extraordinary circumstances of this case."

D) Further agreements of the U.S. 9th Circuit Court of Appeals:

(a) The interest of the Republic of the Philippines in the enforcement of its laws does not end at its
boarders. The fact that the escrow funds were deposited in Singapore does not preclude the
application of the Act of State Doctrine.
 xxx"
(b) The Republic of the Philippines did not simply intrude into Singapore in exercising its forfeiture
jurisdiction. The presence of the assets in Singapore was a direct result of events that were the
subject of the decision in Credit Suisse, supra, where the U.S. 9th Circuit Court of Appeals upheld as
an Act of State a freeze order by the Swiss government, enacted in anticipation of the request of the
Philippine government to preserve the Philippine government's claims against the very assets in issue
today." (Credit Suisse, 130 F 3d at 1346-4 7)

C. SOURCES OF INTERNATIONAL LAW

Listing is found in Article 38 (1 (a) – (d)) of the ICJ Statute:

Article 38 of the ICJ Statute

1. The Court, whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply:
a.international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
b.international custom, as evidence of a general practice accepted as law;
c.the general principles of law recognized by civilized nations ;
d.subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.

Shorthand Terms for sources of international law:

 1(a) refers to CONVENTIONAL INTERNATIONAL LAW
 1(b)refers to CUSTOMARY INTERNATIONAL LAW (hereinafter referred to as CIL)
 1(c) refers to GENERAL PRINCIPLES OF LAW (hereinafter referred to as GPL)
 1(d) refers to JUDICIAL DECISIONS and TEACHINGS of the most highly qualified publicists

Types of Sources of International Law

1. Primary Sources
a. Conventional International Law
b. Customary International Law
c. General Principles of Law
2. Subsidiary Sources
a. Judicial Decisions
b. Teachings of the most highly qualified publicists

The relation between the primary sources and the subsidiary sources
1. Primary sources create law (what is the law) while subsidiary sources are merely evidence of
what the law is (tell us what is in the law)
2. There is no stare decisis in international law, i.e. no binding precedent. All decisions of the ICJ
are only binding as between the parties. Therefore, the decisions of the ICJ only serve as
subsidiary sources of international law.

The decision of the Court has no binding force except between the parties and in respect of that
particular case. (Article 59 of the ICJ Statute
 Relation between the three Substantive Sources of International Law
There is no established hierarchy between the three. However, it is recognized that Conventional and
Customary international law apply first, and GPL is resorted to when there is an absence of
Conventional or Customary International Law.

PRIMARY SOURCES
1. Conventional International Law

Definition of Treaty
A treaty is an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation” [Art. 2(1)(a), VCLT].

Requisites
1. Written Form
● Note that it does not require any specific form, as long as it is written. (See Maritime
Delimitations and Territorial Questions between Qatar and Bahrain, Qatar v. Bahrain, July 1,
1994)
2. Between States
3. Governed by international Law

Basic Principles of Treaties

1. The primary body of law governing treaties is the Vienna Convention on the Law of Treaties, which is
considered binding as Customary International law.
2. It is based on consent
a. Treaty obligation is based on consent. No state may be bound by a treaty obligation unless it has so
consented [Art. 34, VCLT].
b. Consent is Manifested by: signature, exchange of instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other means if so agreed. [Art. 11, VCLT, but see
Article 12-14 of VCLT for specific rules governing giving consent by exchange of instruments,
signature or ratification]

3. Pacta Sunt Servanda

Every treaty in force is binding upon the parties to it and must be performed by them in good faith
[Art. 26, VCLT].
Note: This is considered as customary international law and applies to all obligations contained in a
treaty.

4. Generally Not Binding on Third States, i.e. non-contracting parties.

General Rule: A treaty does not create either obligations or rights for a third State without its
consent [Art. 34, VCLT].
Exceptions:
a. When the third party accepts a provision establishing an obligation for that third party. (Art. 35,
VCLT)
b. When the third party accepts a right provided for and exercises such right in accordance with the
conditions established in the treaty. ( Art. 36, VCLT)

5. Treaties are Non-Retroactive

Note: Unless a different intention appears from the treaty or is otherwise established, its provisions
do not bind a party in relation to any act or fact which took place or any situation which ceased to
exist before the date of the entry into force of the treaty with respect to that party [Art. 28, VCLT].
 Reservations to Treaties
A reservation is a unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the
legal effect of certain provisions of the treaty in their application to that State [Art. 2 (d), VCLT];

General Principles on Reservations

1. Generally they are allowed when the State is signing, ratifying, accepting, approving or acceding
to a treaty, unless they are (1) Prohibited by the treaty (2) Only specified reservations are
allowed by the treaty or (3) The reservation is incompatible with the object and purpose of the
treaty [Art. 19, VCLT].
To be considered binding on the other contracting state to the treaty, that State must accept the
reservation. A reservation is presumed to be accepted. A reservation is deemed unaccepted when
another contracting state objects. [See Art. 20, VCLT]

Grounds for Terminating a Treaty (Articles 46-53 and 60-62 of VCLT)

1. Provisions of Internal Law Regarding Competence to Conclude Treaties [Art. 46]
2. Specific Restrictions on Authority to Express Consent of a State [Art. 47]
3. Error [Art. 48]
4. Fraud [Art. 49]
5. Corruption of a Representative of a State [Art. 50]
6. Coercion of a Representative [Art. 51]
7. Coercion of a State by Threat or Use of Force [Art. 52]
8. Treaties Conflicting with Jus Cogens [Art. 53]
9. Termination or Suspension of a Treaty as a Consequence of its Breach [Art. 60]
10. Supervening Impossibility of Performance [Art. 61]
11. Fundamental Change of Circumstances [Art. 62]

2. Customary International Law (CIL)

Definition
General Practice Accepted as law [Art. 38 (1) (b), ICJ Statute].

Elements
1. State Practice
2. Opinio Juris

Before a norm may become customary international law binding on all States, there must be state
practice and opinio juris sive necessitates. [North Sea Continental Shelf Cases (ICJ, 1969)]

State Practice
The practice must be consistent and general. Consistency requires substantial uniformity and not
necessarily complete uniformity in practice [Asylum Case (ICJ, 1950)]. Generality does not require
universality.
This means that the practice is virtually uniform and extensive and established, widespread,
consistent, representative (good number of states) [THIRLWAY].

State practice means that it pertains to the actions of a STATE only, not of individuals.

The following acts may evidence state practice [HARRIS]:

1. Diplomatic correspondence;
2. Policy statements;
3. Press releases;
4. Opinions of official legal advisers;
5. Official manuals on legal decisions (executive decisions and practices, and government
comments on drafts by the ILC);
 6. International and national judicial decisions;
7. Recitals in treaties and international instruments;
8. Practice of international organs

Opinio Juris
This refers to the belief on the part of states that a particular practice is required by law, and not
because of courtesy or political expediency [North Sea Continental Shelf Cases (ICJ, 1969)]. (i.e. the
State acts in such a manner because it believes it is obligated to do so)

Binding Effect of CIL

General Rule: Customary International Law is binding on all states.

Exception: Persistent Objector - When a State has continuously objected to a new customary norm at
the time when it is yet in the process of formation, by such persistent objection the norm will not be
applicable as against that state [MAGALLONA and Asylum Case (ICJ, 1950)]

Note however that the ICJ has recognized the possibility of regional custom in the Asylum Case (ICJ,
1950) and of bilateral custom in the Right of Passage over Indian Territory Case (ICJ, 1960).

Duality of Norms
It is possible for a norm of international law to exist both as a customary norm and a conventional
norm [e.g. prohibition against the use of force]. Such norms are said to be of dual character.

Norms of dual character come into being when:

a. a treaty provision simply restates a customary norm;
b. a treaty provision constitutes evidence of custom; or
c. a treaty provision crystallizes into a customary norm.

For a treaty provision to crystallize into custom, the provision must be norm-creating or law- making,
creating legal obligations which are not dissolved by their fulfillment [North Sea Continental Shelf
Cases (ICJ, 1969)].

The customary norm retains a separate identity even if its content is identical with that of a treaty
norm. Thus, a State that cannot hold another State responsible for a breach of a treaty obligation can
still hold the erring state responsible for the breach of the identical customary norm [Nicaragua Case
(ICJ, 1986)].

Philippine Practice
The Supreme Court has identified the following customary norms:
a. Rules and principles of land warfare and of humanitarian law under the Hague Convention
and the Geneva Convention [Kuroda v. Jalandoni, G.R. No. L-2662 (1949)];
b. Pacta sunt servanda [La Chemise Lacoste
v. Fernandez, G.R. No. L-63796-97 (1984)];
c. Human rights as defined under the Universal Declaration of Human Rights [Reyes v.
Bagatsing, G.R. No. L-65366 (1983)];
d. The principle of restrictive sovereign immunity [Sanders v. Veridiano, G.R. No. L-46930
(1988)];
e. The principle in diplomatic law that the receiving state has the special duty to protect the
premises of the diplomatic mission of the sending state [Reyes v. Bagatsing, G.R. No. L-
65366 (1983)];
f. The right of a citizen to return to his own country [Marcos v. Manglapus, G.R. No. 88211
(1989)];
g. The principle that “a foreign army allowed to march through friendly country or to be stationed
in it, by permission of its government or sovereign, is exempt from criminal jurisdiction of the
 place” [Raquiza
v. Bradford, G.R. No. L-44 (1945)];
h. The principle that judicial acts, not of a political complexion of a de facto government
established by the military occupant in an enemy territory, are valid under international law
[Montebon v. Director of Prisons, G.R. No. L-1352 (1947)];
i. The principle that private property seized and used by the enemy in times of war under
circumstances not constituting valid requisition does not become enemy property and its
private ownership is retained, the enemy having acquired only its temporary use [Noceda v.
Escobar, G.R. No. L-2939 (1950)];
j. The principle that a State has the right to protect itself and its revenues, a right not limited to
its own territory but extending to the high seas [Asaali v. Commissioner, G.R. No. L-24170
(1968)].

3. General Principles of Law (GPL)

Definition: These refer to those general principles in municipal law (particularly those of private law)
that may be appropriated to apply to the relations of states [OPPENHEIM].

Function of GPL: To avoid a non liquet, i.e. when a court does not have a treaty or customary norm
to decide on.

Examples of General Principles of Law

1. Estoppel ([Temple of Preah Vihear Case (ICJ, 1962)].
2. Res Judicata
3. Res Inter Alios Acta
4. Prescription
5. Duty to Make Reparations [Chorzow Factory Case (PCIJ, 1927)]
6. Abuse of Rights
7. Good Faith
8. Principle of Reciprocity
9. Circumstantial Evidence

Circumstantial evidence is admitted as indirect evidence in all systems of law and its use is recognized
by international decisions. Such circumstantial evidence, however, must consist of a series of facts or
events that lead to a single conclusion [Corfu Channel Case (ICJ, 1949)].

SUBSIDIARY SOURCES

Judicial Decisions and Teachings of Highly Qualified Publicists

Function: These two sources listed in Article 38 (1 (d)) of the ICJ Statute tell us what the law is. They
are evidence of what international law is.

Judicial Decisions
Includes decisions of international tribunals and those of municipal courts. There is no binding
precedent in international law pursuant to Article 59 of the ICJ Statute

Highly Qualified Publicists

No clear definition of what is a highly qualified publicist.

The difference between Judicial Decisions and Writings of Highly Qualified Publicists It is not so
much that judicial decisions necessarily possess a higher intrinsic value than the teachings of
publicists, but that they have „a more direct and immediate impact on the realities of international life.
BORDA]
United Nations Declaration
General Rule: General Assembly resolutions are not binding on member states.
But when they are concerned with general norms of international law, acceptance by all or most
members constitutes evidence of the opinions of governments in what is the widest forum for the
expression of such opinions

Resolutions may satisfy the subjective element opinio juris by expressly articulating a belief
concerning the existence of principles and rules of international law. [HARRIS]

State practice may also be evidenced either in declarations of general principle or in resolutions
dealing with particular cases.

General Assembly resolutions may contribute to the formation of custom as a kind of collective state
practice. These resolutions can be considered the collective equivalent of unilateral general
statements.

In some cases, a resolution may have the effect of an authoritative interpretation and application of the
principles of the UN Charter [CRAWFORD]

Exception: Certain UN organizational matters

Security Council Resolutions

The Security Council is empowered to issue binding legal standards when acting under Chapter VII of
the UN Charter concerning action with respect to threats to peace, breaches of the peace, and acts of
aggression.

The Security Council may decide what measures involving the use of armed force are to be employed
to give effect to its decisions.

When the Security Council decides not to resort to recommendations but to issue decisions, these are
binding on the strength of Article 25 of the UN Charter.

Actions of organs of international organizations created by treaty

The treaty constituting an international organization may entrust a body of the organization to adopt
binding legal standards The rules enacted shall be binding only to the member states of the
organization. It cannot bind third states.
LESSON 2:

D. SUBJECTS OF INTERNATIONAL LAW

Definition of Subjects of International Law:

Entities which are:
1. Capable of possessing international rights and duties; and
2. Having the capacity to maintain these rights by bringing international claims [Reparations for
Injuries Advisory Opinion (ICJ, 1949)].

Subjects of International Law:

1. States;
2. International organizations; and
3. Natural or Juridical Persons

Note: States are generally considered as the primary subjects of international law.

Rationale: ”xxx the world is today organized on the basis of the co-existence of States, and that
fundamental changes will take place only through State action, whether affirmative or negative‟. The
States are the repositories of legitimated authority over peoples and territories. It is only in terms of
State powers, prerogatives, jurisdictional limits and law- making capabilities that territorial limits and
jurisdiction, responsibility for official actions, and a host of other questions of co-existence between
nations can be determined.” [FRIEDMANN]

Objects of international law are persons or things in respect of which rights are held and obligations
are assumed by the subject. They are not directly governed by the rules of international law. Their
rights (e.g. human rights of individuals) may be asserted and their responsibilities imposed indirectly,
through the instrumentality of an intermediate agency (e.g. state).

This distinction between objects and subjects of International Law has been criticized as unhelpful, as
non-state actors already have standing to bring suits in the fields of international criminal law and
international human rights law.

The United Nations has an objective international personality [Reparations for Injuries Advisory
Opinion (ICJ, 1949)].

1. States
A state exists when it complies with the four (4) requisites listed in the Montevideo Convention, which
is considered as customary international law for defining the requisites of statehood.

FOUR REQUISITES TO BE A STATE:

Montevideo Convention, Article 1
The state as a person of international law should population; (b) a
defined territory; (c) government; and (d) capacity to enter into relations with the otherstates.

a. Permanent Population
It refers to a permanent population and intended to be used in association with that of territory, and
connotes a stable community.

b. Defined Territory
State territory is that defined portion of the surface of the globe, which is subjected to the sovereignty
of the State [OPPENHEIM].
 A state must exercise control over a certain area. It need not be exactly defined by metes and bounds,
so long as there exists a reasonable certainty of identifying it. No minimum land area is required.

Modes of Acquiring Territory

● Occupation
o Occupation refers not to mere discovery, but to effective exercise of sovereignty over
a territory that is terra nullius (i.e., not subject to the sovereignty of any other state).
o Effective occupation means continued display of authority. It involves:
o the intention and will to act as sovereign or animus occupandi; and or some actual
exercise or display of such authority [Eastern Greenland Case (PCIJ, 1933)].
● Prescription
o Through prescription, title is acquired by continuous and undisturbed exercise of sovereignty over
a period of time.
o In contrast [to occupation], prescription is the acquisition of territory that is not terra nullius,
obtained by means that may initially have been of doubtful legality but is uninterrupted and
uncontested for a long time. Timely protests by the „former‟ sovereign will usually bar the claim
[AUST].
● Accession or Accretion
o Accession or accretion is the natural process of land formation resulting in the increase of
territory.
● Cession
o Cession means the transfer of territory from one state to another by treaty (derivative). It is the
only bilateral mode of acquiring territorial sovereignty.

c. Government
Denotes a “stable political community supporting a legal order to the exclusion of another in a given
area”.

The existence of effective government, with centralized administrative and legislative organs, is the
best evidence of a stable political community. It is a centralized structure capable of exercising
effective control over a human community living in a given territory.

State practice suggests that the requirement of a “stable political organization” in control of the territory
does not apply during a civil war or where there is a collapse of law and order in a state that already
exists.

Under the rules on succession of States, even changes of entire governments do not affect the identity
and personality of the state. Once statehood is established, neither invasion nor disorder alone can
remove its character as a state [BROWNLIE].

Types of Government
De Jure: Government from law, that is, one with a color of legitimacy.

De Facto: One that governs without a mandate of law. So long as it is in place, it may command
obedience from the inhabitants of the occupied area. The de facto ruler may suspend laws and enact
new ones.
● De Facto Proper/Government by Revolution: That which usurps, either by force or the will of the
majority, the legal government and maintains control against it;
● Government by Paramount Force/by Occupation: Results from the occupation of a state or a part
thereof by invading forces in time of war; and
● Government by Secession: Government established as an independent government by
inhabitants of a country who rise in insurrection against the parent state [See Co Kim Cham v.
Valdez Tan Keh, G.R. No. L-5 (1945)].
 d. Capacity To Enter Into Relations With Other States/Independence
A state must be free from outside control in conducting foreign and internal affairs, i.e. sovereign and
independent.

The State is the sole executive and legislative authority. It must be independent of other state legal
orders, and any interference by such legal orders, or by an international agency, must be based on a
title of international law.

Independence is the decisive criterion of statehood. This concept of independence is represented by

the requirement of capacity to enter into relations with other states.
Concepts Relating to Statehood:
a. Recognition
Recognition is an act by which a state acknowledges the existence of another state,
government or belligerent community and indicates willingness to deal with the entity as such
under international law.
As a public act of state, recognition is an optional and political act, and there is no legal duty in
this regard.

Effect of Recognition
● Declaratory School: Recognition is a mere declaration or acknowledgement of an existing
state of law and fact, legal personality having been previously conferred by operation of law.
This is the prevailing view [BROWNLIE].
○ Montevideo Convention, Article 3: The political existence of the state is independent of
recognition by the other states. Even before recognition the state has the right to defend its
integrity and independence, to provide for its conservation and prosperity, and consequently to
organize itself as it sees fit, to legislate upon its interests, administer its services, and to define
the jurisdiction and competence of its courts. The exercise of these rights has no other limitation
than the exercise of the rights of other states according to international law.
● Constitutive School: The political act of recognition is a precondition to the existence of legal
rights of a state. In its logical extreme, this is to say that the very personality of a state depends
on the political decision of other states. This is the minority view [BROWNLIE]

b. Failed States
States in which institutions and law and order have totally or partially collapsed under the
pressure and amidst the confusion of erupting violence, yet which subsist as a ghostly presence
on the world map. xxx Though retaining legal capacity, has for all practical purposes, lost the
ability to exercise it.
However, they are continued to be recognized as states during their time of failure

c. Secession
Secession is the effort of a group or section of a state to withdraw itself from the political and
constitutional authority of that state, with a view to achieving statehood for a new territorial unit
on the international plane [In re Secession of Quebec (Can., 1998)].

Grounds for Secession:

(1) Colonization;
(2) Alien subjugation, domination, or exploitation outside the colonial context;
(3) Remedial Secession: When a people is blocked from the meaningful exercise of its right to
self-determination internally, it is entitled, as a last resort, to exercise it by secession [In re
Secession of Quebec (Can., 1998)].

d. The Principle of Continuity and Obligations Contracted by De Facto Governments

The state is bound by engagements entered into by governments that have ceased to exist; the
 restored government is generally liable for the acts of the usurper.

A general government de facto having completely taken the place of the regularly constituted
authorities in the state binds the nation. So far as its international obligations are concerned, it
represents the state. It succeeds to the debts of the regular government it has displaced and
transmits its own obligations to succeeding titular governments. Its loans and contracts bind the
state and the state is responsible for the governmental acts of the de facto authorities. In
general its treaties are valid obligations of the state. It may alienate the national territory and the
judgments of its courts are admitted to be effective after its authority has ceased. [Tinoco
Arbitration; (1 U.N. Rep. Int‟l Arb. Awards 369, 1923)]
2. International Organizations

An organization established by a treaty or other instrument governed by international law and

possessing its own international legal personality. International organizations may include as
members, in addition to States, other entities. [Draft Articles on the Responsibility of International
Organizations, Art. 2(a)]

General rule: International organizations have special personality. The status and powers of an
international organization is determined by agreement and not by general or customary international
law. They are considered subjects of international law “if their legal personality is established by their
constituent instrument.” Thus, legal personality in this context is a relative concept [MAGALLONA].

Exception: United Nations, which has objective international personality. The UN‟s personality is
binding on the whole international community, including States who are not UN members [Reparations
for Injuries Advisory Opinion (ICJ, 1949)].

3. Natural Or Juridical Persons

In general, individuals, whether natural or juridical, do not have international legal personalities.

However, individuals may assume the status of subjects of international law only on the basis of
agreement by states and in specific context, not in accordance with general or customary international
law.

Examples of Instances where natural juridical persons are granted personality

Art. 187(c)-(e), UNCLOS provides for jurisdiction of the Sea-Bed Disputes Chamber of the ITLOS over
disputes between parties to contracts relating to the exploitation of marine resources. Parties to such
contracts may be natural or juridical persons.
The London Agreement of the International Military Tribunal at Nuremberg, relating to crimes against
peace, war crimes and crimes against humanity, imposed duties and liabilities upon individuals as
well as upon states.
● Art. VI of the Convention on the Prevention and Punishment of the Crime of Genocide defined
“parties charged with genocide” as including individuals [MAGALLONA].
● The International Criminal Court has jurisdiction over individuals who commit genocide,
crimes against humanity and war crimes, subject to conditions of the ICC Statute [Art. 25(1), ICC
Statute, in relation to Art. 5].

4. Others
 E. JURISDICTION OF STATES

Jurisdiction means the power of a state under international law to govern persons and property by its
municipal law. This may be criminal or civil, and may be exclusive or concurrent with other states
[HARRIS].

Types of Jurisdiction:
a. Prescriptive Jurisdiction: This refers to the power of a State to make its law applicable to the
activities, relations, or status of persons, or the interests of persons in things, whether by
legislation, by executive act or order, by administrative rule or regulation, or by determination by
a court.

b. Adjudicative Jurisdiction: This refers to the State‟s jurisdiction to subject persons or things to
the process of its courts or administrative tribunals, whether in civil or in criminal proceedings,
whether or not the state is a party to the proceedings.

c. Enforcement Jurisdiction: This refers to the State‟s jurisdiction to enforce or compel

compliance or to punish noncompliance with its laws or regulations, whether through the courts
or by use of executive, administrative, police, or other non-judicial action.

1. Basis of Jurisdiction

a. Territoriality Principle: Jurisdiction is determined by reference to the place where the act
occurred or was committed. A State takes jurisdiction over persons or events within its territory.
[MAGALLONA] Usually refers to criminal jurisdiction.
b. Nationality Principle: A State may exercise jurisdiction over an offender by virtue of his being
its national, without regard as to where he was at the time the offense was committed and
without respect to the nature of the offense [MAGALLONA].
c. Protective Principle: A State may exercise jurisdiction over an offense committed outside its
territory by its national or non-national, by reason of protecting its security or vital interests
d. Universality Principle: A State may exercise jurisdiction over crimes committed without respect
to the nationality of the offender, on the ground that such crimes are declared as international
crimes by the international community as a whole and thus are prohibited by international law
[MAGALLONA]. Example: Jurisdiction is asserted with respect to acts considered committed
against the whole world [e.g. piracy, see People v. Lol-lo and Saraw, G.R. No. 17958 (1922)].
e. Passive Personality Principle: A State may exercise jurisdiction against foreign nationals who
commit acts to the injury of its nationals within the territory of another State [MAGALLONA]. A
court has jurisdiction if the offended party of the act is a national of the forum state [S.S. Lotus
Case (PCA, 1927)].

Conflict of Jurisdiction
This arises when two or more states can exercise jurisdiction based on one or more different principles
of jurisdiction (ex: Universality v. Territoriality)
2. Exemptions from Jurisdiction

a. Acts of State Doctrine

State Immunity
General Rule: This refers to a principle by which a state, its agents, and property are immune from the
jurisdiction of another state [MAGALLONA].

This principle is premised on the juridical equality of states, according to which a state may not impose
its authority or extend its jurisdiction to another state without the consent of the latter, through a waiver
of immunity. Thus, domestic courts must decline to hear cases against foreign sovereigns out of
deference to their role as sovereigns.

Exception: When a state waives the immunity or consents to being sued.

Types of State Immunity

1. Rationae Materiae: Attaches to the official acts of State officials and is determined by reference
to the nature of the acts in question rather than by reference to the particular office of the official.
a. Doctrine of Restrictive Immunity divides this immunity into two categories:
i. Acts performed jure imperii: that is, private or commercial transactions of States,
are subject to foreign jurisdiction.
ii. Acts performed jure gestionis: the foreign State in its capacity as a sovereign, are
immune.
2. Rationae Personae: Attaches to the office itself. However, in contrast, it covers official and
personal acts.

The Nature of State Immunity

1. It is preliminary in nature and does not depend on the obligation breached by the State.
2. It is a customary norm.

Such immunity applies even if the claim against the state is for violation of a jus cogens norm in
international law.

“Immunity from jurisdiction is an immunity not merely from being subjected to an adverse judgment but
from being subjected to the trial process. It is, therefore, necessarily preliminary in nature. […]In
addition, there is a substantial body of State practice from other countries which demonstrates that
customary international law does not treat a State’s entitlement to immunity as dependent
upon the gravity of the act of which it is accused or the peremptory nature of the rule which it is
alleged to have violated.” [Jurisdictional Immunities of the State, Germany v. Italy (ICJ, 2012)]

b. International Organizations and their Officers

The rapid growth of international organizations under contemporary international law has paved the
way for the development of the concept of international immunities.

There are 3 propositions underlying the grant of international immunities to international organizations.
These principles, contained in the ILO Memorandum are stated thus:
(1) International institutions should have a status which protects them against control or interference by
any one government in the performance of functions for the effective discharge of which they are
responsible to democratically-constituted international bodies in which all the nations concerned
are represented;
(2) No country should derive any national financial advantage by levying fiscal charges on common
international funds; and
(3) The international organization should, as a collectivity of States members, be accorded the facilities
for the conduct of its official business customarily extended to each other by its individual member
 States.

International immunity is not concerned with the status, dignity or privileges of individuals, but with the
elements of functional independence necessary to free international institutions from national control
and enable them to discharge their responsibilities impartially on behalf of all their members. The
raison d’etre for these immunities is the assurance of unimpeded performance of their functions by
the agencies concerned [International Catholic Immigration Commission v. Calleja, G.R. No.
85750 (1990)].

F. DIPLOMATIC ANDCONSULAR LAW

1. Diplomatic Law
Definition: Rules regulating the various aspects of diplomatic relations.

Nature: The rules of diplomatic law “constitute a self-contained regime, which on the one hand, lays
down the receiving state‟s obligations regarding the facilities, privileges and immunities to be accorded
to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and
specifies the means at the disposal of the receiving state to counter any such abuse.” (US Diplomatic
and Consular Staff in Tehran)

Relevant Convention: Vienna Convention on Diplomatic Relations (“VCDR”)

Diplomatic Intercourse/Right of legation The right of a state to send and receive diplomatic
missions, which enables states to carry on friendly intercourse.

Diplomatic relations and diplomatic missions are separately established by mutual consent (See Art. 2,
VCDR)
a. Agents of Diplomatic Relations
i. Diplomatic Corps
This refers to the collectivity of all diplomatic envoys accredited to a state composed of:
1. Head of mission, classified into:
a. Ambassadors or nuncios accredited to the heads of State, and other heads of mission of
equivalent rank;
b. Envoys, ministers, and internuncios accredited to the heads of State;
c. Charges d‟affaires accredited to Ministers of Foreign Affairs [Art. 14, VCDR];
2. Diplomatic staff, engaged in diplomatic activities and are accorded diplomatic rank [Art. 1(d), VCDR];
3. Administrative and technical staff, those employed in the administrative and technical service of the
mission [Art. 1(f), VCDR];
4. Service staff, engaged in the domestic service of the mission [Art. 1(g), VCDR] [Nachura].

In the Philippines, the President appoints, sends, and instructs the diplomatic and consular
representatives [Sec. 16, Art. VII, 1987 Constitution].

ii. Heads of State

The head of State represents the sovereignty of the State and enjoys the right to special protection for
his physical safety and the preservation of his honor and reputation.

The head of State is immune from criminal and civil jurisdiction, except when he himself is the plaintiff,
and is not subject to tax or exchange or currency restrictions. Upon the principle of extraterritoriality,
his quarters, archives, property, and means of transportation are inviolate.
 iii. Foreign Office

This is the body entrusted with the conduct of actual day-to-day foreign affairs.

It is headed by a secretary or a minister who, in proper cases, may make binding declarations on
behalf of his government [Eastern Greenland Case (PCIJ, 1933)].

b. Functions and Duties of Agents

1. Represent the sending State in the receiving State [Art. 3(1)(a), VCDR];
2. Protect in the receiving State the interests of the sending State and its nationals, within the
limits allowed by international law [Art. 3(1)(b), VCDR];
3. Negotiate with the government of the receiving State [Art. 3(1)(c), VCDR];
4. Ascertain, by all lawful means, the conditions and developments in the receiving State and
reporting the same to the sending State [Art. 3(1)(d), VCDR];
5. Promote friendly relations between the sending State and receiving State, and developing
their economic, cultural and scientific relations [Art. 3(1)(e), VCDR];
6. If diplomatic relation is severed, entrust the protection of its nationals to the diplomatic
mission of a third state acceptable to the receiving state [Art. 45, VCDR]; and
7. May protect the interest of a third State by agreement with the receiving State, if there are no
diplomatic relations between the third state and the receiving state [Art. 46, VCDR]
[Magallona].
c. Diplomatic Immunities and Privileges Theoretical Bases
Diplomatic immunities and privileges have
been justified under the following theories:
 Extraterritoriality theory: The premises of the diplomatic mission represent a sort of extension
of the territory of the sending State.
 Representational theory: The diplomatic mission personifies the sending State.
 Functional necessity theory: The privileges and immunities are necessary to enable the
diplomatic mission to perform its functions. This theory was adopted by the ILC when it drafted
the draft articles of the VCDR [MAGALLONA].

i. Personal Inviolability
General Rule: The person of a diplomatic agent shall be inviolable. He shall not be liable to any
form of arrest or detention. [Art. 29, VCDR]

Exception: The diplomatic envoy may be arrested temporarily in case of urgent danger, such as
when he commits an act of violence which makes it necessary to put him under restraint for the
purpose of preventing similar acts [Diplomatic and Consular Staff in Tehran Case (ICJ, 1980)].

The receiving State shall treat him with due respect and shall take all appropriate steps to prevent
any attack on his person, freedom or dignity. [Art. 29, VCDR]

The duty to treat him with due respect and protect his person, freedom or dignity from physical
interference by other persons [Art. 22, VCDR].

Scope
1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as
the premises of the mission.
2. His papers, correspondence and, except as provided in paragraph 3 of article 31
3. His property shall likewise enjoy inviolability. [Art. 30 VCDR]

ii. Inviolability of Premises of the Mission and the Archives

 The term “premises of the mission” means the buildings or parts of the buildings and the land
ancillary thereto used for the purposes of the mission including the residence of the diplomatic
agent [Art. 1(i), VCDR]. This is irrespective of the ownership of the premises [Magallona, citing
ILC Yearbook].

Rule
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter
them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises
of the mission against any intrusion or damage and to prevent any disturbance of the peace of
the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means
of transport of the mission shall be immune from search, requisition, attachment or execution.
[Art. 22, VCDR]

Continuing Duty
If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily
recalled:
1. The receiving State must, even in case of armed conflict, respect and protect the premises of
the mission, together with its property and archives;
2. The sending State may entrust the custody of the premises of the mission, together with its
property and archives, to a third State acceptable to the receiving State;
3. The sending State may entrust the protection of its interests and those of its nationals to a
third State acceptable to the receiving State. [Art. 45, VCDR].

iii. Right to Official Communication

Rule: The envoy is entitled to fully and freely communicate with his government.
1. The receiving state shall permit and protect free communication on the part of the mission for all
official purposes;
2. The mission may employ all appropriate means to send and receive messages by any of the
usual modes of communication or by diplomatic courier, which shall enjoy inviolability;
3. The official correspondence of the mission is inviolable; and
4. The diplomatic bag shall not be opened or detained [Art. 27, VCDR].

iv. Immunity from Local Jurisdiction

Persons Entitled
1. Diplomatic agent and family: Diplomatic agent and members of the family of the diplomatic agent
forming part of his household, who are not nationals of the receiving state [Art. 31, VCDR];

2. Administrative and technical staff:

a. As to criminal jurisdiction, members of the administrative and technical staff of the diplomatic
mission, as well as members of their families forming part of their respective households, who are
not nationals of or permanent residents in the receiving state;
b. As to civil and administrative jurisdiction, immunity shall not extend to acts performed outside the
course of their duties [Art. 37, VCDR]; and

3. Service staff: Members of the service staff of the diplomatic mission, who are not nationals of or
permanent residents in the receiving state, with respect to acts performed in the course of their
duties [Art. 37, VCDR].

Duration of Immunities and Privileges Immunities and privileges begin from the moment the person
 enters the territory of the receiving state to take up his post or, if already in its territory, from the
moment when his appointment is notified to the Ministry of Foreign Affairs.

They come to an end when he:

1. exits the country, or
2. upon expiration of a reasonable period in which to leave the country [Art. 39, VCDR].

Waiver of Immunity from Jurisdiction

In proceedings, whether criminal, civil or administrative, the waiver must be:
1. made by the sending State itself; and
2. express [Art. 32, VCDR].

State practice indicates that the authority to exercise the waiver rests with the sovereign organs, and
not the diplomatic agent or official himself [MAGALLONA].

A diplomatic agent is not obliged to give evidence as a witness. [Art. 31, VCDR]

(a) Criminal Jurisdiction

Rule : A diplomatic agent enjoys immunity from criminal jurisdiction of the receiving State [Art. 31,
VCDR]. He may not be arrested, prosecuted, prosecuted or punished for any offense he may commit,
unless his immunity is waived.

Note: The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt
him from the jurisdiction of the sending State. [Art. 31(4) VCDR]

(b) Civil and Administrative Jurisdiction

General Rule: An agent shall enjoy immunity from its civil and administrative jurisdiction. [Art. 31,
VCDR]

Exceptions
1. A real action relating to private immovable property situated in the territory of the receiving State,
unless he holds it on behalf of the sending State for the purposes of the mission;
2. An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
3. An action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions. [Art. 31, VCDR]

No measures of execution may be taken in respect of a diplomatic agent except in the cases where he
comes under the above exceptions and provided that the measures concerned can be taken without
infringing the inviolability of his person or of his residence. [Art. 31, VCDR]

2. Consular Relations

Definition: These are the relations which come into existence between two States by reason of the
fact that consular functions are exercised by authorities of one State in the territory of the other
[MAGALLONA].

Relevant Convention: Vienna Convention on Consular Relations (VCCR)

Consular relations are established by mutual consent. The consent given to the establishment of
diplomatic relations between two States implies consent to the establishment of consular relations,
unless otherwise stated but the severance of diplomatic relations shall not ipso facto involve the
severance of consular relations. [Art. 2, VCCR].
a. Consuls

Definition: Consuls are state agents residing abroad with certain functions (see b.)

Ranks:
● Consul general – heads several consular districts, or one exceptionally large consular district;
● Consul – in charge of a small district or town or port;
● Vice Consul – assists the consul;
● Consular agent – one entrusted with the performance of certain functions by the consul.

b. Functions and Duties

The functions and duties of Consuls include but are not limited to the ff:
(a) protecting in the receiving State the interests of the sending State and of its
nationals, both individuals and bodies corporate, within the limits permitted by international law;
(b) issuing passports and travel documents to nationals of the sending State, and visas or
appropriate documents to persons wishing to travel to the sending State;
(c) helping and assisting nationals, both individuals and bodies corporate, of the sending State;
(d) acting as notary and civil registrar and in capacities of a similar kind, and performing certain
functions of an administrative nature, provided that there is nothing contrary thereto in the laws
and regulations of the receiving State;
(e) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending
States in cases of succession mortis causa in the territory of the receiving State, in accordance
with the laws and regulations of the receiving State;
(f) performing any other functions entrusted to a consular post by the sending State which are not
prohibited by the laws and regulations of the receiving State or to which no objection is taken by
the receiving State or which are referred to in the international agreements in force between the
sending State and the receiving State. [Art. 5, VCCR]

c. Right to Consular Assistance Diplomatic Protection

Right of a state to claim rights for its nationals abroad.
States have a positive duty to accord consular privileges to sending states whose nationals have run
into trouble in the jurisdiction of the receiving states [Avena Case (ICJ, 2004) and LaGrand Case (ICJ,
2001)].

See Art. 36(1), VCCR, which gives consular officers the right to communicate with nationals of the
sending state and to have access to them, and give consular officers the right to visit a national of the
sending state who is in prison, custody or detention [LaGrand Case (ICJ, 2001)].

However, the VCCR violation does not automatically result in the partial or total annulment of
conviction or sentence [Avena Case (ICJ, 2004)].

d. Immunities and Privileges

i. Personal Inviolability
Rule
(a) They are not liable to arrest or detention pending trial, except in case of a grave crime and
pursuant to a decision of a competent judicial authority; and
(b) shall not be committed to prison nor be subject to any other form of restriction to personal freedom,
except in the case of grave crime pursuant to a decision of competent judicial authority, or in the
execution of a final judicial decision
(c) If criminal proceedings are instituted against a consular officer, he must appear before the
competent authorities but the proceedings shall be conducted with the respect due to him by
reason of his official position and, except in par. 1, in a manner which will hamper the exercise of
 consular functions as little as possible.
(d) When, in the circumstances mentioned in paragraph 1 it has become necessary to detain a
consular officer, the proceedings against him shall be instituted with the minimum of delay. [Art. 41,
VCCR].

ii. Inviolability of Consular Premises

The term “consular premises” refers to “the buildings or parts of buildings and the land ancillary
thereto, irrespective of ownership, used exclusively for the purposes of consular post” [Art. 1(j),
VCCR].

Rule
(a) The authorities of the receiving State shall not enter that part of the consular premises which is used
exclusively for the purpose of the work of the consular post except with the consent of the head of the
consular post or of his designee or of the head of the diplomatic mission of the sending State. The
consent of the head of the consular post may, however, be assumed in case of fire or other disaster
requiring prompt protective action.
(b) The receiving State is under a special duty to take all appropriate steps to protect the consular premises
against any intrusion or damage and to prevent any disturbance of the peace of the consular post or
impairment of its dignity.
(c) The consular premises, their furnishings, the property of the consular post and its means of transport
shall be immune from any form of requisition for purposes of national defense or public utility. If
expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the
performance of consular functions, and prompt, adequate and effective compensation shall be paid to
the sending State. [Art. 31, VCDR]

iii. Inviolability of Archives

The inviolability of archives is unconditional. They shall be inviolable at all times and wherever they
may be [Art. 33, VCCR].

The consular archives and documents of aconsular post headed by an honorary consularofficer
shall be inviolable at all times and wherever they may be, provided that they are kept separate
from other papers and documents and, in particular, from the private correspondence of the head
of a consular postand of any person working with him, and from the materials, books or
documents relating to their profession or trade. [Art. 66, VCCR]

iv. Freedom of Communication

Rule
(a) The receiving State shall permit and protect freedom of communication on the part of the consular
post for all official purposes.
(b) In communicating with the Government, the diplomatic missions and other consular posts, wherever
situated, of the sending State, the consular post may employ all appropriate means, including
diplomatic orconsular couriers, diplomatic or consular bags and messages in code or cipher.
(c) The official correspondence of the consular post shall be inviolable. Official correspondence
means all correspondence relating to the consular post and its functions. [Art. 35, VCCR]

The Consular Bag General Rule

The consular bag shall neither be opened nordetained. [Art. 35 VCCR]

Exception
The receiving state may, however, request that the consular bag be opened if the authorities
have serious reasons to believe that the bag contains something other than correspondence,
documents or articles intended exclusively for official use. If the request is accepted, the bag
may be opened in the presence of the authorized representative of the sending state; If the
 request is refused, the bag shall be returned to its place of origin [Art. 35, VCCR].

v. Immunity from Local Jurisdiction

General rule: Consular officers and employees are entitled to immunity from the jurisdiction of
administrative and judicial authorities in the receiving state. [Art. 43, VCCR]
Exceptions
This immunity shall not apply to a civil actioneither:
1. Arising out of a contract by a consular officer or employee, which he did not
conclude expressly or impliedly as an agent of the sending state; or
2. By a third party for damage arising from an accident caused by vehicle, vessel or
aircraft in the receiving state [Art. 43, VCCR].

Liability to Give Evidence

1. Members of a consular post may be called upon to attend as witnesses in the course of
judicial or administrative proceedings.
a.A consular employee or a member of the service staff shall not, except in the cases
mentioned in paragraph 3, decline to give evidence.
b.If a consular officer should decline to do so, no coercive measure or penalty may be
applied to him.
2.The authority requiring the evidence of a consular officer shall avoid interference with the
performance of his functions. It may, when possible, take such evidence at his residence or
at the consular post or accept a statement from him in writing.
3.Members of a consular post are under no obligation to give evidence concerning matters
connected with the exercise of their functions or to produce official correspondence and
documents relating thereto. They are also entitled to decline to give evidence as expert
witnesses with regard to the law of the sending State. [Art. 44, VCCR]