IS 26 International Law
General Principles
Nature and Scope of International Relations
What is International Law?
Traditional: Body of rules and principles of action binding upon civilized states in their relations with another.
3rd Restatement: Body of legal rules which apply between sovereign states and such other entities as have been granted international personality.
Examples of other entities: International Organizations (e.g., UN, WTO, WHO, ICC, ICJ). International Institutions, Corporations (e.g., MNC and TNC), Terrorists, and the Individual.
Why are terrorists becoming part of IL?
They are becoming a threat to the Family of Nations. Their acts have become transnational.
Why is the phrase âInternational Lawâ a Misnomer?
The phrase âinternational lawâ is a misnomer in so far as it suggests that it relates to the intercourse of nations rather than of states - Its restrictive import would exclude from its operations those other international persons which, although non-states, are directly assigned certain rights and responsibilities in the international community
Universal acceptance of the term âInternational Lawâ - 1870, Jeremy Bentham, Introduction to the Principles of Morals and Legislation
International law is used interchangeably with âthe law of nationsâ
Divisions of International Law
What are the divisions of International Law?
The divisions of International Law are the: [1] Laws of Peace, [2] Laws of War, [3] Laws of Neutrality.
Laws of Peace - govern the normal relations of states.
Laws of War - regulates the relations among states that are in war (for the duration of hostilities).
Laws of Neutrality - regulates the relations of states (those states that are helping or are indirectly involved) and the belligerents (those who are in War).
When the war ends and peace is restored, the relations of all the members of the family of nations will come again under the laws of peace (until another war breaks out).
What is War?
It is a state of armed conflict between different nations or states or different groups within a nation or state. It also involved the use of violence and aggression.
Do states need to declare that they are War? Is it a requirement in International Law?
It depends, in our constitution we need to declare if we are at war. In the International Arena this is not considered. The only time we need to declare war is for us to use our armed forces.
Distinction between International Law and Municipal Law
What is conflict of laws?
Also known as private international law pertains to the municipal or private law of each states rather than as part of international law.
What is Municipal Law?
Municipal Law is a product of local custom or legislation that regulates relations between individual persons under the state. It is the law of the sovereign over individuals.
What is the highest form our Municipal Law?
Constitution
Distinguish the difference between ML and IL.
MUNICIPAL LAW
INTERNATIONAL LAW
Issued by a political superior for observance by those under its authority.
Not imposed upon but simply adopted by states as a common rule of action among themselves.
Consists mainly of enactments from the law-making authority of each states.
Derived not from any particular legislation but from sources of international custom, international conventions, and the GAPIL.
Regulates the relations of individuals among themselves or with their own stats.
Applies to the relations inter se of states and other international persons.
Violations of ML are redressed through local administration and judicial process.
Questions of International Law are resolved through state-to-state transactions ranging from peaceful methods like negotiations and arbitration to the hostile arbitrament of force like reprisals and even war.
Breaches of ML generally entail only individual responsibility.
Responsibility of infraction is usually collective in the sense that it directly to states and not to its nationals.
Can you say that ML is superior than IL?
Depends on what perspective: the monists or the dualists.
Monists: believes that there is no substantial distinction between IL and ML because they believe in the oneness or unity of the law. All laws comes from the Natural Law and that ML and IL belong to one legal system.
Dualists: believes in the dichotomy of the law; there are certain established difference between international law and municipal law.
No, both ML and IL are supreme in their respective fields. An International Law cannot be a law in the municipal field if itâs not transformed or incorporated. However, the International Sphere cannot apply the ML because each state has a different ML, constitutions, statues, enactments.
Relations of International Law to Municipal Law
Can a Municipal Law become a part of International Law?
It is possible for a principle of municipal law to become part of international law, when the principle is embodied in a treaty or convention (Hague Conventions of 1899 and 1907 and the Genevae Convention of 1930)
How does an International Law become part of Municipal Law?
Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation.
The transformationmethod requires that an international law be transformed into a domestic law through a constitutional mechanism (Article VII, Section 21, PHIL CONST.) such as local legislation.
ARTICLE VII, SECTION 21: No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.
According to Bernas, the concurrence of the two-thirds of the Senate only results to resolutions. It doesnât become LAW, for it to be fully effective, there must be a bill passed based on that resolution.
The bill is prepared.
The House of Representatives has its first reading.
A Committee Consideration/Action session is held.
The House of Representatives has its second reading.
The House of Representatives has its third reading.
The approved bill is transmitted to the Senate.
A conference committee is assembled.
The bill is transmitted to the President of the Philippines to be signed and passed.
The incorporation method applies when, by mere constitutional declaration (Article II, Section 2, PHIL CONST.), international law is deemed to have the force of domestic law (Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G.R. No. 173034, October 19, 2007).
ARTICLE II, SECTION 2: The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
Define what Generally Accepted Principles of International Law is. Why and how is it generally accepted in the family of nations.
General principles of law - are principles of municipal law common to the legal systems of the world. They refer to norms of general or customary international law which are binding on all states.
All legal systems of the world have those things/processes which makes them generally accepted.
Examples: Renunciation of war, estoppel, reparation, sovereign immunity, due process of law, prescription, and pacta sunt servanda.
Does the automatic incorporation of ML to IL also applies to Customary International Law?
Constitution v. Treaty
Differentiate Constitution from Treaty.
Constitution - body of fundamental rules and principles, or established precedents according to which a state is organized and set to be governed.
Treaty- according to the Vienna Convention on the Law of Treaties, it is an international agreement concluded between States in written form and is governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.
What is the General Rule if there is a conflict with the constitution and the treaty entered by our state? Explain the principle of pacta sunt servanda.
Pacta sunt servanda - "agreements must be kept" or âpromises must be fulfilledâ.
As provided in the Declaration of Rights and Duties of States, adopted by the International Law Commission on 9 June 1949, âEvery State has the duty to carry out, in good faith, its obligations arising from treaties or other sources of international law, and it may not invoke provisions in its Constitution or its laws as an excuse for failure to perform this duty.â
Exemptions:
Jus cogens: Peremptory norms of general international law that take precedence over the principle of pacta sunt servanda.
Clausula rebus sic stantibus: The principle that allows for non-satisfaction of treaty obligations due to a compelling/fundamental change of circumstances.
Jus imperii: It refers to the public acts that a nation undertakes as a sovereign state. These acts are usually immune from legal action or liability in a foreign country. Jus imperii describes transactions by state bodies or representatives, such as diplomats, and in international law, the state maintains immunity from such transactions
What are the two acts of the state where sovereign immunity will apply?
The two acts of the state where sovereign immunity will apply are jus imperii and jus gestionis.
Jus imperii: This refers to acts of a sovereign nature carried out by the state. These acts are considered to be within the state's governmental functions and are therefore subject to sovereign immunity. For itâs national interest, national security, promotion of national economy.
Examples of jus imperii acts include acts related to national defense, foreign policy, and the exercise of sovereign authority .
Jus gestionis: On the other hand, jus gestionis refers to commercial or business-like acts carried out by the state. These acts are not considered to be within the state's governmental functions and are therefore not protected by sovereign immunity. Instead, the state is subject to the jurisdiction of the territorial sovereign in matters related to jus gestionis. The state falls to the level of individual.
Examples of jus gestionis acts include commercial transactions, contracts, and business operations.
Can a state sue another state base on their treaty obligations?
When it comes to its general obligations, a state cannot be sued without its consent. But signing a treaty already means consent. When states enter into treaties, they voluntarily agree to be bound by the legal obligations specified in those treaties. If one state believes that another state has violated its treaty obligations, it can initiate legal proceedings against the other state to seek redress.
Why canât you as an individual or a citizen sue the state?
The reason why individuals or citizens generally cannot sue the state is due to the principle of sovereign immunity. Sovereign immunity is a legal doctrine that grants immunity to the state from being sued without its consent. This principle is based on the idea that the state, as a sovereign entity, should not be subjected to the jurisdiction of its own courts or the courts of other states.
There can be no legal right against the authority that makes the law on which the rights depend.
Where all the laws comes from? State. Your rights are based on the state. It is because of the state that you are called a citizen and have the rights as stipulated in Article III, The Bill of Rights. And only when those rights are violated can you sue the states.
Can a state be sued by another state or an individual?
The concept of state immunity only covers acts under jus imperii (public acts). Once a state enters into a commercial transaction or jus gestionis, it becomes treated as a private individual and therefore is not immune from the resulting liability and consequences of its actions
In violations of treaties for example, a treaty is considered to be a contract between two states, if a state fails to perform its duties and obligations stated in the treaty for unjustified reasons, the state may be sued and state immunity will not be applicable
What happens when there is a conflict between the constitution and IL?
In the Philippine context, the 1987 Constitution was formulated to accept the general principles of International Law as part of the law of the land
âThe PhilippinesâŚadopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, and amity with all nationsâ - Article II, Section 2
What happens when there is a conflict between the Constitution and a Treaty?
Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law
Article VIII, Section 5, 2 (a) in the 1987 Philippine Constitution explicitly recognizes the power of the Supreme Court to declare a treaty unconstitutional
However, this does not mean that the treaty loses its character as international law. The unconstitutionality of a treaty is purely a domestic manner
Article 27, Vienna Convention on the Law of Treaties âa party may not invoke the provisions of internal law as justification for its failure to perform a treaty
What is âPar in parem non habet imperiumâ and âUnduly vex the peace of nationsâ?
Par in parem non habet imperium- "equals have no sovereignty over each other." It is a general principle of international law that forms the basis of state immunity. According to this principle, a sovereign state cannot exercise jurisdiction over another sovereign state.
âAll states are sovereign equals and cannot assert jurisfiction over one anotherâ
Unduly vex the peace of nations - refers to actions or behaviors that unreasonably disturb or disrupt the peaceful relations between nations. It suggests that certain actions or events can have a negative impact on international peace and stability.
Basis of International Law
International law does not emanate from a supreme lawmaking authority but is voluntarily observed by an international community which does not recognize any political superior among its members
What is it that gives a binding force to international law?
NATURALISTS â there is a natural and universal principle of right and wrong, independent of any mutual intercourse or compact.
According to the naturalist school of through (Samuel Pufendorf), the basis of international law is the law of nature
The law of nature is described as âa higher lawâ or a ârule of human conduct independent of positive enactment and even of special divine revelation, and binding always and everywhere in view of its intrinsic reasonablenessâ
There is a ânatural and universal principle of right and wrong, independent of any mutual intercourse or compactâ, which is supposed to be discovered and recognized by every individual through the use of his reason and conscience
International law is viewed as not a law between but above states
POSITIVISTS â positive identification with or acknowledgement/consent of the law is necessary to make it binding on the States it purports to govern. Such consent, it is asserted, is expressed in conventional law, implied in customary law, and presumed in the case of the GAPIL.
The binding force of international law is derived from the agreement of sovereign states to be bound by it
It is a law of coordination rather than subordination
Under this theory, a more positive identification with or acknowledgment of the law is necessary to make it binding on the states it purports to govern
Any state withholding its consent can disclaim any responsibility of observance
ECCLECTICS/ GROTIANS â the system of international law is based on âthe dictates of right reasonâ as wells as âthe practice of Statesâ, hence it is binding because it is good and right and is agreed upon states.
Emerich de Vattel and Christian Wolff
Both the law of nature and the consent of states are the basis of international law
The system of international law is based on âthe dictates of right reasonâ as well as âthe practice of statesâ
Voluntary law is said to blend with natural law, should there be a conflict between the two, the law of nature was to prevail as being the fundamental law, the authority of which could not be contravened by the practice of states
Sanctions of International Law (C-H-R-R-U)
What is it that compels obedience to International Law?
Common belief shared by many states in the inherent reasonableness of international law and their common conviction that its observance will redound to the welfare of the whole society of nations.
But regardless of the intrinsic merit of the rules of international law, they may still be observed by states because of the normal habits of obedience ingrained in the nature of man as social being.
Respect for the world opinion held by most states, or their desire to project an agreeable public image in order to maintain the goodwill and favorable regard of the rest of the family of nations.
The constant and reasonable fear, present even in the most powerful states, that violation of international law might visit upon the culprit the retaliation of other states.
There is the machinery of the UN which, within the sphere of its limited powers, has on many occasions proved to be an effective deterrent to international disputes caused be disregard of the law of nations.
Enforcement of International Law
Differentiate observance from enforcement.
Observance- dependent on the volition of the entity subjected to the law.
Enforcement - process of compelling observance, usually by force or threat of force.
How is International Law enforced?
According to the Austinian concept, a rule of action can only be considered law if it is prescribed by a political superior with the power to punish violators. Based on this concept, international law cannot be regarded as true law.
However, there is a more acceptable view that society may voluntarily adopt and obey norms of conduct, even without specific penalties for non-observance. From this perspective, international law possesses the qualities of true law.
States can enforce international law among each other through international organizations or regional bodies. The United Nations and its Security Council play a significant role in enforcing international law. The Security Council can adopt measures to compel compliance with international obligations and address disputes .
Special arbitral tribunals may be established by agreement of the parties involved to settle disputes.
States may attempt to settle their differences through diplomatic talks or hostile measures like retorsions and reprisals. In some cases, war may be waged as a last resort. The laws governing conduct during hostilities and neutrality are enforced mainly through physical force by the belligerents and neutral states.
The United Nations has demonstrated its capacity to contain aggression and enforce international law, as seen in the Gulf War of 1991 and humanitarian interventions.
International law can also be incorporated into the municipal law of individual states. The legislature can implement international rules by prescribing norms for observance and providing penalties for violations. The executive branch enforces these laws, and the judiciary applies international law in appropriate cases.
How are states able to enforce International Law?
Through international organizations or regional groups
Grievances of disagreeing states may be presented to and discussed in these bodies, which may then adopt such measures as may be necessary to compel compliance with international obligations or vindicate the wrong committed
Functions of International Law
To establish peace and order in the community of nations and to prevent the employment of force, including war, in all international relations
It strives as well to promote world friendship by levelling the barriers, as of color or creed, that have so far obstructed the fostering of a closer understanding in the family of nations.
To encourage and ensure greater international cooperation in the solution of certain common problems of a political, economic, cultural or humanitarian character
Aims to provide for the orderly management of the relations of states on the basis of the substantive rules they have agreed to observe as members of the international community.
Distinctions with Other Concepts
International morality or ethics - those principles which governs the relations of states from the higher standpoint of conscience, morality, justice and humanity.
International comity - those rules of courtesy observed by states in their mutual relations, in that violations of its precepts are not regarded as constituting grounds for legal claims.
International diplomacy - relates to the objects of national or international policy and the conduct of foreign affairs or international relations.
Jus Feciale - laws of negotiations and diplomacy.
International administrative law - that body of laws and regulations, now highly developed, created by the action of international conference or commissions which regulate the relations and activities of national and international agencies with respect to those material and intellectual interests which received an authoritative universal recognition.
Present State of International Law
Many rules of international law are rooted in tradition, but new principles have emerged due to modern developments in international relations. These include the blurring of distinctions between combatants and non-combatants, claims over the maritime domain, disapproval of intervention, the outlawry of war, and the expansion of human activities into outer space .
Despite advances in science and technology bringing people physically closer, conflicting interests and ideologies continue to hinder the growth of a universal rule of law based on peace and justice. International law remains in a state of transition as humanity strives for harmony and order.
Definitions of Legal Terms or Concept
Opinio juris sive necessitaties - the belief that an action was carried out as a legal obligation (an opinion of law or necessity)
Pacta sunt servanda - âevery state has the duty to carry out in good faith its obligations arising from treaties or other sources of international law and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform its dutyâ
Jus gentium (the law of peoples) - the idea that the basic justifactory principle of law is its treatment of the human individuals within its scope
Erga omnes - obligations erga omnes of a state towards the International Community as a whole, any state has a right to bring a complaint against breach of said obligations
Jus imperii - refers to public acts that a nation undertakes as a sovereign state, these acts are immune from legal action or liability.
Jus gestionis - refers to commercial acts entered by a state in which state immunity does not apply
Ex propiio vigore (by its own strength or force) - the principle that a law or treaty may be binding on its own
Jus feciale (the law of negotiation and diplomacy) - ensure that negotiations of treaties are fair and just
Case Studies:
Mijares v. Ranada
Pangilinan v. Cayetano (2021)
The Court interpreted Article II, Sec. 2 of the 1987 Philippine Constitution to adopt both GAPIL and Custom as part of the law of the land. It also notes that treaties or international agreements are treated differently, as Art. VII, Sec. 21 of the 1987 Philippine Constitution only considers these as valid and effective upon concurrence of at least two-thirds of all the Members of the Senate. Hence, the Court abandoned the applicability of lex posterior derogat prior. Statute must prevail over a treaty even if the treaty comes later.
In entering foreign agreements and treaties, the President must always be within the bounds of the Constitution and our laws. Thus, in order for a treaty to be deemed be valid and binding by the Philippines, the treaty must always be consistent with the Constitution and domestic law. The Court, therefore adopts the following guidelines:
First, the President enjoys some leeway in unilaterally withdrawing from agreements which he or she determines to be contrary to the Constitution or statutes.
Second, the President cannot unilaterally withdraw from agreements which were entered into pursuant to congressional imprimatur.
Third, the President cannot unilaterally withdraw from international agreements where the Senate concurred and expressly declared that any withdrawal must also be made with its concurrence.
Abaya v. Ebdane (2007)
The exchange of notes can be a form of executive agreements and is considered binding even without concurrence by the Senate. SC agreed that pacta sunt servanda must then be observed and that the award was proper.
Pharmaceutical v. DOH (2007)
International law can be part of domestic law by transformation or incorporation. Here, the international instruments such as the UN Convention on the Rights of the Child, ICESCR, and the Convention on the Elimination of all forms of discrimination against women are only guides for the State to follow. There must first be legislation for the provisions of the World Health Assembly resolutions to be implemented by the DOH.
Tanada v. Angara (2007)
The provisions in Art. 2 of the Constitution are not self-executing but are merely guides for the exercise of judicial review and for the legislature. The constitution also recognizes the need to do business with the global community. It does not promote an isolationist policy. And, contrary to the petitionersâ belief, the WTO recognizes the need to protect weak economies.
Sources of International Law
What are the sources of International Law?
According to Art. 38(1) of the Statute of the International Court of Justice (ICJ), the sources of international law include: (1) international treaties and conventions; (2) customary international law; (3) generally accepted principles of law (GAPL); and (4) judicial decisions and teachings of the most highly qualified publicists (MHQPs).
What are the Kinds of Sources?
Primary/ direct sources
Treaties/conventions - whether general or particular, establishing rules expressly recognized by the contesting states.
International customs - a practice which has grown up between states and has come to be accepted as binding the mere fact of persistent usage over a long period of time.
General principles of law recognized by civilized nations - the general principles of law are mostly derived from the law of nature and observed by the majority of states because they believed to be good and just.
Secondary/ indirect sources
Decisions of courts- Article 38 of the statute of ICJ does not distinguish between those rendered by international tribunals and those promulgated only by national courts.
Writing of publicists - must also be, to qualify as such, a fair and unbiased representation of international law, and by an acknowledged authority in the field.
What is the difference between formal and material sources of IL?
Formal sources are those legal procedures and methods for the creation of rules of general application which are legally binding on their subjects. Examples of formal sources include legislation, treaty making, judicial decision making, and practice of states.
Material sources, on the other hand, provide evidence for the existence of rules, which, when proved, have the status of legally binding rules of general application. As such, state practice, UN Resolutions, judicial decisions, treaties, and the writings of most highly qualified publicists are considered material sources in so far as they provide what the obligations are.
Is there a hierarchy among the sources?
No. No source of international law is superior or inferior to another in terms of their binding nature. The sources mentioned in Art. 38(1) of the ICJ Statute simply prescribes the order rather than the hierarchy of the sources that the ICJ must adhere to. Thus, a distinction must be made between the first three sources as against the fourth source. While the first three (i.e. treaty, custom, GAPL) are primary sources, the fourth (i.e. judicial decisions, teachings of MHQPs) are subsidiary in nature. As such, judicial decisions and teachings of MHQPs have persuasive value before the court insofar as they aid the interpretation of the primary sources.
Treaties
What is a treaty?
A treaty is an: (a) international agreement; (b) conducted between states; (c) in written form; and (d) governed by international law; (e) whether embodied in a single instrument or in two or more related instruments, and whatever particular designation they may be given. [VCLT, art. 2(1)(a)]
How can a person bind their State to a treaty?
Two ways: (1) the person is a representative of a State; or (2) s/he possesses full powers. (VCLT, art. 7)
How are treaties interpreted?
Treaties must be interpreted in good faith and in accordance with the ordinary meaning given to the terms of the treaty in their context and in light of its object and purpose (VCLT, art. 31). Supplementary means of interpretations include: (a) preparatory works of the treaty; and (b) circumstances to the treatyâs conclusion. (VCLT, art. 32)
What is the difference between a State-party and a signatory to a treaty?
A State-party is bound to abide by all the provisions of the treaty. A signatory, according to Art. 18 of the VCLT, is only bound to refrain from doing acts which defeat the object and purpose of the treaty.
What if treaty and custom contradict each other?
The answer varies. In the Wimbledon case, a treaty that came later than a particular custom prevailed since it manifested the deliberate choice of the parties and the principle of pacta sunt servanda. Article 53 of the VCLT however, emphasizes that a later treaty is âvoid if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.â
What is the Philippine practice with regard to treaties?
The following are the relevant Constitutional provisions:
Foreign loans: Art. VII, Sec. 20 (with prior concurrence of the Monetary Board)
The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law.
Treaties: Art. VII, Sec. 21 (with concurrence of at least two-thirds of the Senate)
No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.
Military bases: Art. XVIII, Sec. 25 (with the U.S.; when the Congress requires, majority of votes cast by the people in a national referendum)
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.
Constitutionality of treaties: Art. VIII, Sec. 4 (concurrence of majority of members of the Supreme Court who actually took part in the deliberations)
(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
Is a treaty a direct source of International Law?
According to Article 38 of the Statute of ICJ, a treaty is one of the primary or direct sources of International Law. However, not all treaties can be considered as a direct source of international law.
A bilateral treaty for example is binding only upon the signatories and the rest of the international community which had no participation or adoption in the said treaty are not bound upon the treaty - Such a treaty, being limited in operation is a source of âparticular international lawâ
In a multilateral treaty, only the state who has been aggrieved by its fellow signatory can claim legal obligations
What is a particular international law?
Refers to specific treaties or agreements entered into by states or other international actors, these agreements create specific obligations only for the parties involved
Can a bilateral treaty become a primary source of International Law?
Yes, bilateral treaties may become a primary source of international law if, (1) they are of the same nature, (2) contain uniform provisions, and (3) concluded by a substantial number of states
General rule - for a treaty to be considered as a direct source of international law, it must be concluded by a sizable number of states and thus reflect the will or consensus of the family of nation
Even if originally agreed upon by a few states, the treaty may become binding upon the whole world if it is intended to lay down rules for observance by all and it is subsequently signed or acceded to be other states which thereby submit to its provisions
Customs or Customary Laws
What is a custom?
A custom is defined as a practice which has grown up between states and has come to be accepted as binding by there mere persistent usage over a long period of time
Are all states bound by customary law?
Yes, all states are bound by customary international law considering the following principles:
Consent - even if a state has not specifically consented to be bound by a customary law, the consistent practice of following a custom and accepting it as law implicates their consent
Universality - customary law arises from widespread and consistent state practice accompanied by opinio juris sieve necesitaties or practice through a sense of legal obligation. This universality creates a general expectation of compliance
Objectivity - international courts and tribunals identify and interpret customary law based on objective evidence and not state preference
Can a state choose not to be bound or adhere to customary law?
While in a general sense, the states are bound by customary international law. There may be exemptions to this.
Persistent objectors - a state may not be bound by custom if since the process of formation and development of the custom, the state expressed its objection to the practice. The evidence of objection must be clear and unequivocal.
Emerging norms - if a customary norm is new and under development, not all states may be bound to them
However, it should be noted that a stateâs objection to adherence to an international custom has the risk of international backlash and repercussion
What are the defects of customary international law?
The difficulty in determining when a practice can be considered as a custom and has acquired obligatory character
Inability to adjust to the moving developments of the international society which it is supposed to regulate
What is the difference between an International custom and International norm?
International norms can have various sources and may or may not be legally binding, encompassing wider principles and behaviors. International customs on the other hand are a specific type of norm arising from state practice with the force of law or opinio juris sive necessitaties
How can a norm become an international custom?
In the discussion Bayan Muna v. Romulo, in order to establish the customary practice of a norm, two elements must be considered namely: (1) state practice, and (2) opinio juris sive necessitaties
What is a state practice?
The objective element of establishing the status of a norm as a customary law
It must follow or adhere to the elements of customary law:
Generality - a significant number of the international community must practice the norm
Uniformity and Consistency - the practice must be uniform and consistent, the uniformity in some cases may not need to be complete but rather substantial
Duration - the duration of the practice can be short or long, provided that the practice is consistent and general
What is opinio juris sive necessitaties?
The subjective and psychological element of establishing the status of a norm as customary law
It requires that the state practice or the norm must âbe carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring itâ
In summary, state practice of the norm must be from a sense of legal obligation
What is Customary International Law?
According to the North Sea Continental Shelf Case, it consists of unwritten rules evinced from the generality and uniformity of the practice of States and is adhered to by such states out of a sense of legal obligation or opinio juris.
What are the requisites of Custom?
According to the North Sea Continental Shelf Case, the following are the requisites for a certain practice to achieve customary status:
(a) duration;
(b) uniformity and consistency of practice;
(c) generality of practice; and
(d) a sense of legal obligation or opinio juris et necessitates.
How long should the duration be for a practice to be considered customary?
Although duration is a necessary element of custom, there is no ânumericalâ requirement as to the length of the duration. According to the North Sea Continental Shelf Cases, although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary law, state practice within the period, no matter how short it might be, should have been both extensive and
virtually uniform.
Is there a concept of instant custom? What is an example?
According to the North Sea Continental Shelf Cases, even without the passage of any considerable period of time, a practice may mature into custom when (1) it involves the extensive and uniform practice of states whose interests are especially affected and (2) it must have occurred in a manner that shows a general recognition that a rule of law or legal obligation is involved. An example would be the condemnation of terrorism after the 9/11 incident.
Should there be total uniformity for a practice to be considered customary?
Total uniformity is not required. The ICJ in the North Sea Continental Shelf Cases and MHQP Ian Brownlie are say that what is needed is virtual uniformity or consistency. The ICJ has recognized in the Asylum Case and in Nicaragua v. United States that uniformity and generality of practice need not be in âin absolute conformityâ with the forwarded custom, but must at least be substantial.
Should ALL states adhere to a practice for it to be customary?
No, according to the North Sea Continental Shelf Cases, for a practice to be general, it must be adhered to by majority of âspecially affectedâ states. This means that customary law may even bind only two states, for as long as the party claiming it must prove that the purported custom also binds the other parts, as shown in Right of Passage over Indian Territory.
What is opinio juris? (Bar 2008)
According to the Lotus case and the North Sea Continental Shelf Cases, it is the recognition and feeling of a State that they are conforming to what amounts to a legal obligation, rather than something that is just done out of courtesy, fairness or morality.
What is the value of Resolutions adopted by the U.N. General Assembly?
Generally, resolutions and declarations of the UNGA are not considered legally binding. However, this is not the case when: (a) it concerns internal administrative matters (e.g. finances, admission of new members, etc.); or (b) when such documents are unanimously adopted by all States. Under the second case, such occurrence is usually considered as evidence of opinion juris.
What is the concept of âpersistent objectorâ?
A state may not be bound by custom if since the process of formation and development of the custom, the state expressed its objection to the practice. The evidence of objection must be clear and unequivocal.
How is custom proved?
Custom is proved by proving state practice and opinion juris. State practice may be shown through treaties, diplomatic correspondence, statements of national leaders and political advisers, and the conduct of states. It must be noted however, that these only arise as customary law if they are characterized by opinio juris, the existence of which is subject to the proof discharged by the state claiming it.
What is the Philippine practice with regard to customary international law? (Bar 2012)
According to Art. II, Sec. 2 of the Constitution, the Philippines âadopts the generally accepted principles of international law as part of the law of the land.â This provision, more popularly known as the incorporation clause, considers both norms under customary international law and generally accepted principles of law as part of the law of the land.
General Principles of Law
What are Generally Accepted Principles of Law?
General principles of law are principles of municipal law common to the legal systems of the world. These are concepts such as estoppel, reparation, and due process of law.
Examples:
Pacta sunt servanda
Consent
Res judicata
The renunciation of war as an instrument of national policy
Right to life, liberty, and due process
Are GAPIL considered as CIL?
Yes. Customary International Law are rules evidenced by generality and uniformity of state practice and is adhered to by states out of a sense of legal obligation. This includes Generally Accepted Principles of Law, which are common principles of municipal law across the legal systems of the world.
Where are the General Principles of the Law derived from?
They are derived from the law of nature and are observed by the majority of states because they are believed to be good and just
Why are the General Principles of Law universally binding?
The general principles of the law have become universal in application because of the unilateral decision of a considerable number of states to adopt and observe them in recognition of their intrinsic merit
Secondary Sources of International Law
What are the secondary sources of International Law?
1. Judicial decisions
2. Writings and teachings of the most highly qualified publicists
Why are they considered as secondary sources?
Secondary sources are those that interpret and analyze the primary sources of International Law
They do not directly create laws
Judicial Decisions and Most Highly Qualified Publicists
Is the ICJ bound by its prior decisions? (Bar 2013)
No, according to Art. 59 of the ICJ Statute, decisions of the Court have no binding force except as between the parties and in respect of a particular case. The Court does not adhere to the doctrine of stare decisis.
Res judicata is a legal principle that a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties.
Stare decisis is a legal principle where courts are bound to follow the precedents set by higher courts when deciding similar cases. It ensures consistency and predictability in the legal system.
Can the Court apply decisions of national courts, or other international tribunals (e.g. ICC, ICSID, ITLOS)?
Yes, Art. 38(1)(d) of the ICJ Statute does not distinguish between cases decided by the ICJ as against those decided by other courts, whether international or local.
Who is a most highly qualified publicist?
A most highly qualified publicist is one who is:
(a) published; and
(b) recognized as an expert in the field of international law he/she is writing about.
Are judicial decisions only rendered by international tribunals?
Article 38 of the Statute of ICJ does not distinguish between those rendered by international tribunals and arbitration bodies and those promulgated only by national courts
Both kinds of decisions are acceptable as long as they are a correct application and interpretation of the law of nations
âThe decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respectâ - Thirty Hogshead of Sugar v. Boyle
Is stare decisis applicable in International Law?
Stare decisis is the policy of using judicial decisions made in the past to interpret written laws and appropriately apply those laws to the facts in the present case
The doctrine of stare decisis is not applicable in international law, the decision of a court in one case will only have persuasive value and has no binding force except between parties in respect to that particular case
Can any writings of publicist qualify as a secondary source of International Law?
No, only the writings and teachings of a highly qualified publicist who is a scholar of public international law (legal scholars or academic writers) is considered a legitimate secondary source of International Law
The State & The International Community
Explain the concept of an International Community.
International Community - body of juridical entities which are governed by the law of nation.
Modern Concept: composed of states and other international persons
Examples: The UN, the Vatican City, Colonies, and dependencies, mandates and trust territories, international administrative bodies, belligerent communities, and even individuals.
The Distinction between Subject and Object of International Law
What is the difference/distinction between subjects and objects of IL?
Subject of International Law - entity that has rights and responsibilities under that law. It has an international personality in that it can directly be responsible under the law of nations.
Has the faculty of motivation (it can be a proper party in transactions involving the application of the law of nations among members of the international community)
Objects of International Law - person or thin in respect of which rights are held and obligations assumed by the subject. It is not directly governed by the rules of IL and its rights are received and its responsibilities imposed indirectly, through the instrumentality of an intermediate agency.
Examples of Intermediate Agencies: UN Specialized Agencies, Intergovernmental Organizations, International Courts/Tribunals, NGOs
Development of the International Community
The historical development of the international community started with the Peace of Westphalia in 1648. This marked the beginning of the modern international community, with various European Christian states as its charter members.
Over time, membership to the family of nations expanded to include non-Christian states such as the Ottoman Empire, Persia, Japan, China, and Siam.
The Balkan states were recognized before World War I, and after the war, the Baltic states joined. India, Egypt, and Arabian states gained full or qualified status. Many Asian and African countries remained outside until after World War II, when the movement toward self-determination led to their recognition as independent states.
The Philippines participated in international conferences before its independence in 1946, and other Asian states like Indonesia, Laos, Cambodia, Malaysia, and Burma were subsequently created and recognized.
In Africa, the withdrawal of European control led to the birth and admission of countries like the Congo, Tanganyika, Algeria, and Uganda, making the international community nearly universal.
Concept of States
What is a state?
A group of people living together in a definite territory under the independent government organized for political ends and capable of entering into international relations.
As an international person, it may have full or qualified status, depending on the degree of its control over its external affair
Nation vs. State
Some writers no longer recognize the distinction between state and nation
Nevertheless, a respectable number of jurists still hold that a state is a legal concept while a nation is a racial or ethnic concept
A nation may comprise of several states and it is possible for a state to be comprised of more than one nation
Elements of the State
People/Permanent Population
Refers to human beings living within its territory
Should be of both sexes and sufficient in number to maintain and perpetuate themselves
âIndividuals of different races, languages, and religions very often actually form one âpeopleâ, that is to say, the people of one stateâ
Defined Territory
The fixed portion of the surface of the earth in which the people of the state reside
Necessary for jurisdictional reasons and in order to provide for the needs of the inhabitants
The territory should be big enough to be self-sufficient and small enough to be easily administered and defended
Government
The agency through which the will of the state is formulated, expressed, and realized
It is necessary in International Law because the state must have an entity to represent it in its relations with other states
Sovereignty or Independence
The power of the state to direct its own external affairs without interference or dictation from other states
Independence - external aspect of manifestation of sovereignty
Recognition from other States
Does a state cease to be a state if it does not get recognition from other states?
No, a state does not cease to be a state if it does not have recognition from the other states as long as the 4 elements of a state are present
Recognition is for the purpose of treaty and international relations
Capacity and Classification of States
Independent States
Freedom in the direction by the state of its own internal and external affairs
A state which is not subject to dictation from other states in the respect of its external affairs is known as an independent state
a) Simple State
Single and centralized government exercising power over its external and internal affairs
b) Composite State
Consists of two or more states
Separate government but bound under a central authority exercising control over their external relations
Real Union
Two or more states merge under a unified authority and form a single international person through which they act as one entity
One international person (but is not regarded as a separate state)
Federal Union
Combination of two or more sovereign states which upon merger cease to be states, resulting in the creation of a new state with a full international personality
One international person, one state but retain their individual personalities as states
Under the Montevideo Convention, the federal state shall constitute a sole person in the eyes of international law
Confederation
Organization of states which retain their internal sovereignty and to some degree, their external sovereignty
Power is delegated to a collective body power to represent them in international relations
The confederation itself and each of the member states are able to maintain international relations, they are all regarded as many international persons (full but imperfect)
One collective body power for representation, separate international persons and separate states
Personal Union
Two or more independent states brought together under the rule of one monarch
But does not become one international person
Ruled under One monarchy, separate international person
Incorporate Union
A union of two or more states, under a central authority empowered to direct both external and international affairs and possesses a separate international personality
Dependent States
Its nomenclature is a legal paradox because the status of statehood implies the idea of independence
Dependent states are subject to the control of other states in the direction of their external affairs
2 categories:
1. Protectorate - Fully dependent on the protection of the powerful state
2. Suzerainty - Has a degree of autonomy but also vassalage
The United Nations
Not a state but is regarded as an international person, for the following reasons:
1. It enjoys certain privileges and immunities (non-suability, inviolability of its premises and archives, tax exemption)
2. It has the right of legation
3. It can assert a diplomatic claim on behalf of its officials
4. Treaties may be concluded by it
5. It can wage war
The Vatican City
Lateran Treaty - âfor the purpose of assuring to the Holy See absolute and visible independence and guaranteeing to it absolute and indisputable sovereignty in the field of international relationsâ
The vatican city exercises certain prerogatives of states
Why is the Vatican City considered a state despite of its small territory and population, and the impairment of its independence (because of its proximity to Italy?)
Legal basis: Lateran Treaty
Italy gave a part of its territory for the purpose of a new state being established on it
All elements of a state are present:
1. People (does not reach 700 and is composed almost exclusively of individuals residing therein by virtue of their office, nevertheless it is the population of the state)
2. Defined territory (does not exceed 100 acres, nevertheless is the territory of a state)
3. Government (the Pope)
4. Capacity to Enter into Foreign Relations (the Pope prefers to conduct foreign relations as the Holy See, and not in the name of the Vatican City)
Colonies and Dependencies
A part and parcel of the parent state
Through which its external relations are transacted with other states
Does it have a legal standing in the UN?
No, but they have been allowed on occasion to participate in their own right in international undertakings and granted practically the status of a sovereign state
When acting in this capacity, colonies and dependencies are considered international persons
Mandates and Trust Territories
The system of mandates was established after WWI
In order to avoid outright annexation of the underdeveloped territories taken from the defeated powers and to place their administration under some form of international supervision
The basic principle of the mandate system have been retained in the more comprehensive trusteeship system (devised by the UN Charter) Three kinds of Trust Territories:
1. Those held under the League of Nations
2. Territories detached from the defeated states after WWII
3. Those voluntarily placed under the system by the states responsible for their administration
Do trust territories enjoy rights?
They enjoy certain rights directly available to them under the UN Charter
Vested with a degree of international personality
However, they are not sovereign
Belligerent Communities
By the principle of state sovereignty, an upheaval against the legitimate government of the state is regarded as an internal affair
But when the conflict widens and aggravates it becomes necessary to accord the rebels recognition of belligerency
The belligerent state has pending determination of whether or not it is a state but it is fully recognized as an international person and is subject to the laws of war and neutrality
International Administrative Bodies
When does an administrative body be considered an international person?
When their purposes are
1. Mainly non-political
2. They are autonomous (not subject to the control of any state)
Individuals
Traditional concept - regards the individual only as the object of international law who can act only through the instrumentality of his own state in matters involving other states
It is the state of the individual, and not the individual himself, that can be a proper party in the assertion of claim for damages
Modern concept - the individual is not merely an object but a subject of international law
Basis: the individual is the basic unit of society (national and international) and must, therefore, ultimately be governed by the law of this society
Associated State Arrangement
An association is formed when two states of unequal power voluntarily establish durable links
One state (associate) delegates certain responsibilities to the other (principal) while maintaining its international status as a state
Free associations - represent a middle ground between integration and independence
In international practice the associated state arrangement has usually been used as a traditional device of former colonies on their way to full independence
The Concept of State
Creation of State
The Principle of State Continuity
Extinction of the State
Succession of States
PARTICULAR TERRITORY | Capacities, rights, and duties of the predecessor state with respect to that territory are terminated and assumed by the successor state |
STATE PROPERTY | Subject to agreement between the predecessor and successor state |
PUBLIC DEBTS | Subject to agreement between the states concerned: responsibility for the public debt of the predecessor, and rights and obligations under its contracts, remain with the predecessor state |
TREATIES | Vienna Convention is followed; 4 rules apply
|
RULES OR EXCEPTIONS | State is absorbed by another state | Part of territory becomes territory of another state | Part of a state becomes a separate state |
|---|---|---|---|
State Property (title of state property passes as follows) | Property of the absorbed state, wherever located, passes to the absorbing state | Property of the predecessor state located within that territory passes to the successor state | Property of the predecessor state located in the new territory of the new state passes to the new state |
Public Debts (remains with the predecessor state, exceptions are) | Public debt, and rights and obligations under contracts of the absorbed state passes to the absorbing state | Local public debt, rights and obligations of the predecessor state under contracts relating to that territory, are all transferred to the successor state | Local public debt, and the rights and obligations of the predecessor state under contracts relating to the territory of the new state, passes to the new state |
Treaties | International agreements of the absorbed state are terminated and the international agreements of the absorbing states become applicable to the territory of the absorbed state (states may appeal to ârebus sic stantibusâ) | International agreements of the predecessor state cease to have an effect in respect of the territory and international agreements of the successor state come into force there *reflects âmoving treaty ruleâ | The new state does not succeed To the international agreements to which the predecessor state was party to
|
Definition of Terms:
Moving Treaty Rule or Moving Boundaries Rule
It prescribes that treaties of the predecessor previously in force in the territory which forms the object of the succession cease to apply while the treaties in force for the successor State automatically extend to the very same territory
Clean Slate Theory or Tabula Rasa Doctrine
A new State (the âsuccessorâ state) does not succeed to the treaties to which the predecessor state was a party, unless it accepts such agreements and the other party to the original treaty must consent to the continuation of that treaty with the successor state
âRebus Sic Stantibusâ
(âthings standing thusâ) stipulates that, where there has been a fundamental change of circumstances, a party may withdraw from or terminate the treaty in question; unenforceability of a treaty due to fundamentally changed circumstances
âUti Possidetisâ
(âas you possessâ) newly formed states should retain the internal borders that their preceding dependent area had before their independence;
It is often applied to prevent foreign intervention by eliminating any contested terra nullius, or no man's land, that foreign powers could claim, or to prevent disputes that could emerge with the possibility of redrawing the borders of new states after their independence.
It has been applied in modern history to such regions as South America, Africa, the Middle East, and the Soviet Union, and numerous other regions where centralized governments were broken up, where imperial rulers were overthrown, or where League of Nations mandates ended, e.g. Palestine and Nauru
Consequences of State Succession
Succession of Government
Fundamental Rights of States
Right to Existence and Self-Preservation
Right to Sovereignty and Independence
Right of Equality
State Immunity
Recognition
Does a state need to be recognized?
Membership in the Family of Nations
Yes, even if an entity has already acquired all the elements to be considered an international person, it does not automatically entitle them to membership
Its admission is dependent on the acknowledgment of its status by those already within the fold and their willingness to enter into relations with it as a subject of international law
Does a state therefore cease to be a state if it does not gain recognition?
No, recognition is merely a declaratory and only affirms the pre-existing fact that the entity being recognized already possesses the status of an international person
As long as the entity possesses the 4 elements of a state in accordance with the Montevideo Convention of 1933, regardless of whether or not there is recognition from other states it is indisputable that the entity is considered a state
Recognition therefore, is merely for the purposes of international relations and treaties.
Note: Minority holds that recognition is constitutive, this means that it is the last indispensable element that converts or constitutes the entity being recognized into an international person
The minority view regards recognition as mandatory and legal and may be demanded as a matter of right by any entity that can establish its possession of the four elements of the state
Who can extend recognition?
1. Individual states
2. Collective number of states
In the Philippine context:
The President determines the question of recognition and his decisions on this matter are considered acts of states
Who can be recognized?
1. State
Held to be irrevocable and imports the recognition of its government
2. Government
May be withdrawn and does not signify the existence of a state as the government may be that of a mere colony
3. Belligerent Community â
Does not produce the same effects as the recognition of states and governments because the rebels are accorded international personality only in connection with the hostilities they are waging
How is a belligerent community recognized?
Recognition of a belligerent community is implied when the government blockades a port held by the former or when other states observe neutrality in the conflict
Kinds of Recognition
Express
May be verbal or written
It may be extended through a formal proclamation or an announcement, a stipulation in a treaty, a letter or telegram, or official call or conference
Implied
Recognition is implied when the recognizing states enters into official intercourse with the new member through:
Exchanging diplomatic representatives
Concluding with it a bipartite treaty
Dealing comprehensively with their relations in general
Acknowledging its flag
Entering into formal relations
Recognition of States
The recognition of a new state is the free act by which one or more states acknowledge the existence on a definite territory of a human society politically organized, independent of any existing state, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community
The recognition of a new state does not present much difficulty when it is established through peaceful methods, such as by plebiscite or agreement
Recognition of Governments
The recognition of the new government of a state which has already been recognized is the free act by which one or several states acknowledge that a person or group of persons is capable of binding the state which they claim to represent and witness their intention to enter into relations with them
Basis for Recognition: Political Considerations
Premature recognition may lead to international misunderstanding if the new government has been established through violent methods
Peaceful change of government does not pose any problem
Wherein a former government is replaced by force and the new government thereafter claims the right to represent the state to the exclusion of the other, the de jure government might have a cause for complaint if recognition is extended by other governments to the de facto government
Three Kinds of de facto Governments:
That which is established by the inhabitants who rise in revolt against and depose the legitimate regime
That which is established in the course of war by invading forces of one belligerent in the territory of the othe
That which is established by the inhabitants of a state who secede therefrom without overthrowing its government
Tobar or Wilson Principle - recognition shall not be extended to any government established by revolution, civil war, coup dâetat, or other forms of internal violence until the freely elected representatives of the people have organized a constitutional government
Stimson Principle - incumbent upon the League of Nations not to recognize any situation, treaty, or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris
Estrada Doctrine - the Mexican government declared that it would, as it saw fit, continue or terminate its relations with any country in which a political upheaval had taken places âand in so doing it does not pronounce judgment, either precipitatel or a posteriori regarding the right of foreign nations to accept, maintain, or replace their governments or authorities
2 Criteria for Recognition:
In any event, the practice of most states now is to extend recognition to a new government only if it is shown that it has control of the administrative machinery of the state with popular acquiescence and that it is willing to comply with its international obligations
1. Objective Test - the government must be able to maintain order within the state and repel external aggression
2. Subjective Test - may be employed for the purpose of justifying the withholding of recognition from a government that is politically unacceptable
De Jure Government vs De Facto Government
A government satisfying the aforementioned requirements for recognition is recognized as de jure
If it has not sufficiently demonstrated compliance with these conditions, it is recognized as de facto until it is able to show that it is deserving to be recognized as otherwise
Distinctions:
1) Recognition de jure is relatively permanent; de facto is provisional
2) Recognition de jure vests title in the government to its properties abroad; recognition de facto does not
3) Recognition de jure brings about full diplomatic relations; de facto is limited to certain juridical relations
Effects of Recognition of States and Governments
Consequences of the recognition of states and governments:
1) Full diplomatic relations are established (except when the government is de facto)
2) The recognized state or government acquires the right to sue in the courts of the recognizing state
3) The recognized state or government has a right to the possession of the properties of its predecessor in the territory of the recognizing state
4) All acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own courts
Recognition of Belligerency
A belligerency exists when the inhabitants of a state rise up in arms for the purpose of overthrowing the legitimate government
Usually regarded as an internal matter or conflict
When the conflict widdens and aggravates, it may be necessary for practical reasons, to consider the formal recognition of the belligerent community.
Such recognition is extended when the following conditions are established:
1) There must be an organized civil government directing the rebel forces
2) The rebels must occupy a substantial portion of the territory of the state
3) The conflict between the legitimate government and the rebels must be serious, making the outcome uncertain
Consequences of Recognition of Belligerency
Upon recognition by the parent state, the belligerent community is considered a separate state for the purposes of the conflict it is waging against the legitimate government
Their relations with each other shall therefore be governed under the laws of war, and their relations with other states shall be subject to the laws of neutrality
Troops of either belligerent, when captured, shall be treated as prisoners of war, and the parent state shall no longer be liable for any damage that may be caused to third states by the rebel government
Territory of States
What is territory?
Definition:Territory is the fixed portion of the surface of the earth on which the State settles and over which it has supreme authority.
Oppenheim:Can also be defined as boundaries that demarcates a Stateâs territory and separate it from the territory of other states, territory that is not yet owned by any state, and the high seas.
Components of Territory:
1) Terrestrial
2) Fluvial
3) Maritime
4) Aerial
Why is it important for a territory to be permanent?
Jurisdiction of the state is only limited to its territory
How is territory related to the right of sovereignty?
What are the modes of acquisition and loss of territory?
Territory may be acquired by:
Discovery
Occupation
Prescription
Cession
Subjugation
Accretion
Territory may be lost by:
Abandonment
Dereliction
Cession
Subjugation
Prescription
Erosion
Revolution
Natural causes
Discovery and Occupation
Considered as an original mode of acquisition by which territory not belonging to any state, or terra nullius, is placed under the sovereignty of the claiming state.
The territory need not be uninhabited; it may still be subject to occupation if the inhabitants do not possess a sufficient degree of civilization as tested by contemporary standards.
What are the requisites of an effective discovery and occupation?
The nationals of the discovering state, in its name or by its territory, must first take possession of the territory. Thereafter, they must establish thereon an organization or government capable of making its law respected.
Discovery alone merely creates an inchoate right; it must be followed within a reasonable time by effective occupation and administration.
1) Possession
2) Administration
What is meant by inchoate title of discovery? Explain.
Inchoate title of discovery performs the function of barring other states from entering the territory until the lapse of a reasonable period within which the discovering state may establish a settlement thereon and commence to administer it.
Where a state discovers territory but does not take steps to actually administer it, the right acquired is merely an inchoate title of discovery. This will ripen into a full and valid title only if the requisites of a valid discovery and occupation are complied with; and in the meantime it will serve as a bar to other states also interested in the territory.
If administration is not undertaken within a reasonable time, the inchoate title of discovery is lost or forfeited.
Title to the Island of Palmas was disputed between the United States and the Netherlands. The former claimed by virtue inter alia of a valid cession from Spain, which in turn had based its right on discovery and occupation. The latter, on the other hand, had been exercising rights of sovereignty over the island since the eighteenth century and when the alleged cession was made on December 10, 1898. How would you decide?
While it was true that Spain had originally claimed the island by right of discovery and occupation, it had not, however, followed up this claim with a display of authority over the territory; whereas the Netherlands had been exercising acts of sovereignty over it since the middle of the eighteenth century without any protest from Spain.
Spain, in other words, had failed to ripen its in- choate title of discovery by undertaking the administration of the territory. As of December 10, 1898, therefore, the island could be considered as belonging to the Netherlands and not to Spain, which consequently had no right to cede it to the United States. (Island of Palmas Case, 2 U.N. Rep. of Int. Arb. Awards, 831)
Is the rule announced in the Island of Palmas case absolute? Explain.
No. In the Clipperton Island Case, France pro- claimed sovereignty over an island in 1858 but until 1887 exercised no positive or apparent act of sovereignty over it. While Mexico later claimed the territory in 1897, the arbitrator, while recognizing that possession and administration are generally required for an effective discovery and occupation, nevertheless held that -
If territory, by virtue of the fact that it was completely uninhabited is, from the first moment when the occupying State makes its appearance there, at the absolute and undisputed disposition of that State, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby completed. (26 A.JIL 390/1932)
Dereliction
What is dereliction? What is its effect?
It is the physical withdrawal by a state from territory with the intention of relinquishing or abandoning all legal claims over it. The effect of dereliction is to make the territory terra nullius and, therefore, subject again to occupation by other states.
Two conditions:
Act of withdrawal
Intention to abandon
Prescription
Prescription is a derivative mode of acquisition by which territory belonging to one state is transferred to the sovereignty of another state by reason of the adverse and uninterrupted possession thereof by the latter for a sufficiently long period of time. There is no fixed rule in international law as to how long the territory must be held by the state to be able to claim prescriptive title.
Cession
What is cession?
Cession is a derivative mode of acquisition by which territory belonging to one state is transferred to the sovereignty of another state in accordance with an agreement between them.
It may be voluntary through a treaty of sale, or through a treaty of donation, barter or exchange, and even bay testamentary disposition. However, it may also be involuntary or forced.
An example is the cession of the Philippine Islands of Spain to the United States by virtue of the Treaty of Paris of December 10, 1898. This was a partial cession.
Another example is the cession of Korea to Japan under a treaty concluded between them on August 22, 1910. This cession was total and caused the extinction of Korea as a state.
Subjugation
It is a derivative mode of acquisition by which the territory of one state is conquered in the course of war and is thereafter annexed to and placed under the sovereignty of the conquering state.
An example is the annexation of Abyssinia (now Ethiopia) by Italy in 1935.
Accretion
It is a mode of adding to the territory of a state by natural process, such as the gradual deposit of soil on the coast through the action of the water, or by human labor, as exemplified by the reclamation projects on Manila Bay and the polders of the Netherlands.
The increase in the land area of the State, either through natural means or artificially, through human labor.
ACCRETION
AVULSION
Involves the gradual shift through natural means of the land area
Refers to the sudden and dramatic shift
Occurs slowly and is imperceptible
Happens rapidly and perceptibly
May result in a shift in boundaries
Will not result in a shift in boundaries
Conquest
Followed by âannexationâ. This mode of acquisition is no longer recognized, at least insofar as the UN Charter prohibits resort to threat or use of force against the territorial integrity or political independence of any state.
Stimson Doctrine - forbade recognition of any government set up through external aggression, conquest was not considered a valid mode of acquiring territory.
What is the Article 1 of the 1987 Constitution states?
The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.