CHAPTER 1 THE NATURE OF INTERNATIONAL
LAW
obligations erga omnes
- refers to specifically determined obligations that
states have towards the international community as
a whole.
- In general legal theory the concept erga omnes
(Latin: in relation to everyone) has origins dating
as far back as Roman law and is used to describe
obligations or rights towards all. In municipal law
it has the effect towards all in another, general
context.
- The World Court specifically enumerated four erga
omnes obligations:
a. the outlawing of acts of aggression;
b. the outlawing of genocide;
c. protection from slavery; and
d. protection from racial discrimination.
Jus cogens
- That body of peremptory principles or norms from
which no derogation is permitted; those norms
recognized by the international community as a
whole as being fundamental to the maintenance of
an international legal order.
- Elementary rules that concern the safeguarding of
peace and notably those that prohibit recourse to
force or the threat of force. Norms of a
humanitarian nature are included, such as
prohibitions against genocide, slavery, and racial
discrimination.
- Jus cogens may, therefore, operate to invalidate a
treaty or agreement between states to the extent of
the inconsistency with any such principles or
norms.
- The rules of jus cogens (also known as peremptory
norm) are derived from the customary international
law, and it is a rule or principle which is so
fundamental that it binds all states and does not
allow any exceptions.
- They are accepted and recognized by the
international community of States as a whole ...
which can be modified only by a subsequent norm
of general international law having the same
character.
- Article 53 of the Vienna Convention on the Law of
Treaties (VCLT)1969 states that, a treaty is void if,
at the time of its conclusion, it conflicts with a
peremptory norm of general international law.
- Article 64 of the VCLT 1969 further enhances its
importance by giving it retrospective effect
existing treaty which is in conflict becomes void
and is terminated.
- natural law also played a prominent role in the
development of jus cogens in international law.
Ex Aequo Et Bono
- Latin term
- which means what is just and fair or according to
equity and good conscience.
- Article 33 of the United Nations Commission on
International Trade Law's Arbitration Rules (1976)
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provides that the arbitral tribunal should decide as
ex aequo et bono only if the parties have expressly
authorized the arbitral tribunal to do so and if the
law applicable to the arbitral procedure permits
such arbitration.
National law
- Domestic law, which can also be called national
law or municipal law, come from legislature and
customs, whereas international law consists of
treaties and customs.
- Legislature is a body of people who are able to
make or enact laws. Treaties are formal agreements
among and between countries.
What is International Law?
- A body of rules and principles of action which are
binding upon civilized states in their relation to one
another
- A law which deals with the conduct of the states
and of international organizations and with their
relations inter se, as well as with some of their
relations with persons, whether natural or juridical
Scope of International Law
a. Regulation of space expeditions
b. Division of the ocean floor
c. Protection of human rights
d. Management of international financial system
e. Regulation of the environment
f. Preservation of peace
Is International Law a Law?
Henkin: It is probably the case that almost all nations
observe all principles of international law and almost all of
their obligations almost all of the time
Brierly: The ultimate explanation of the binding force of all
law is that man, whether he is a single individual or whether
he is associated with other men in a state, is constrained, in
so far as he is reasonable being, to believe that order and not
chaos is the governing principle of the world in which he
lives
Some Theories about International Law
Command Theory Austin: Law consists of
commands originating from a
sovereign and backed up by
threats of sanction if
disobeyed
International law is not law
because it does not
come from a command of a
sovereign
Consensual Theory International law derives its
binding force from the
consent of states
Treatiesexpression of
consent

Customvoluntary
adherence to common
practices,
is seen as expression of
consent
Natural law theory Law is derived by reason
from the nature of man
International law
application of natural reason
to
the nature of the state-person
Customary lawwhat are
regarded as generally
accepted principles of law are
in fact an expression
of what traditionally was call
natural law
Some dissenters International lawa
combination of politics,
morality and self-interest
hidden under the
smokescreen of legal
language
Pragmatic Theory International law is law
because it is seen as such by
states and other subjects of
international law
Public International Law v. Private International Law
Public International Law Private International Law
Referred to as International Referred to as Conflict of
Law Laws
Governs the relationship Domestic law which deals
between and with cases
among states and also their where foreign law intrudes in
relations the
with international domestic sphere where there
organizations and are
individual persons questions of the applicability
of
foreign law or the role of
foreign
courts
Brief historical development of international law
From Ancient law to the league of nations
Jus gentium a law common to all men
Positivist approach
- Or command theory
- Reinterpreted international law not on the basis
of concepts derived from reason but rather on
the basis of what actually happened in the
conflict between states.
- In this view, international law Is not a law
because it does not come from a command of a
sovereign.
Some significant milestones in the development of
international law:
1. The Peace of Westphalia
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- Ended the 30 years war (1618-1648) and
established a treaty based framework for
peace cooperation.
- At this time, pacta sunt servanda arose.
2. Congress of Vienna (1815)
- Ended the Napoleonic War and created a
sophisticated system of multilateral
political and economic cooperation.
3. Covenant of the League of Nations (1920)
- Included the Treaty of Versailles which
ended World War I.
4. League of Nations
- Created to prevent the recurrence of world
conflagration.
- Membership consisted of 43 states:
Five British dominions of India
Canada
South Africa
Australia
New Zealand
USA DID NOT join.
- Created the Permanent Court of
International Justice.
5. United Nations
- Founded in 1945 because the League of
Nations did not prevent WW II.
- Marked the shift power away from Europe
and the beginning of a truly universal
institution.
- New states, carrying a legacy of bitterness
against colonial powers, became members
of the UN.
- During this period, 3 major groupings of
states arose:
Western states
Socialist states
- Led by the Soviet
Union.
- Formed the socialist
camp
- South to avert Western
intrusion into domestic
affairs even as they
sought relatively good
relations with the West
for the sake of economic
and commercial
interchange.
- Also sought to convert
developing nations to
their ideology.
the developing countries
- formed the majority
- consisted mainly of
former colonies
suffering from
underdevelopment
together with newly
industrializing countries
such as the Philippines,
Malaysia, Thailand,
Singapore and South
Korea.
 This was the Cold War period which succeeded in b. International custom
maintaining peace thru the balancing of the 2 super as evidence of a general practice accepted as law
powers., the US and its allies on the one hand and c. General principles of law recognized by civilized
the Soviet Union. nations
d. Subject to the provisions of Article 59, judicial
6. The end of Cold War decisions and teachings of the most highly
- Dissolution of Soviet Union resulted in the qualified publicists of the various nations, as
end of the Cold War with the re- subsidiary means for the determination of rule of
emergence of international relations based law.
on multiple sources of power and not
mainly on ideology. Restatement of Foreign Relations Law of the US
- At present: Only one super power, the US. States that:
Acts both as world policeman 1. A rule of international law is one that has
and been accepted as such by the international
Global mediator community of states
- As for the UN, it seems to have declined a) In the form of customary law;
as an international agency for the b) By international agreement; or
maintenance of peace. c) By derivation from general
principles common to the major
CHAPTER 2 SOURCES OF INTERNATIONAL LAW legal systems of the world.
2. Customary international law
What Sources are Results from a general and consistent practice of
Domestic Laws states followed by them from a sense of legal obligation.
found in statute books and in collections of court
decisions 3. International agreements
- create law for the states parties thereto and may
Classifications of Sources lead to the creation of customary international law
1. Formal sources which such agreements are intended for adherence
- various processes by which rules come into existence by states generally and are in fact widely accepted.
a. Legislation
b. Treaty making 4. General principles
c. Judicial decision making - common to the major legal systems. Even if not
d. Practice of states incorporated or reflected in customary law or
international agreements, may be invoked as
2. Material sources supplementary rules of international law where
- not concerned with how rules come into existence but appropriate.
rather with the substance and content of the obligation.
- identify what the obligations are
- sometimes referred to as evidence of international law. Sources of International Law
1. Custom
a. State practice 2. Treaties
b. UN Resolutions 3. International agreements
c. Treaties 4. Generally recognized principles of law
d. Judicial decisions 5. Judicial decisions
e. Writings of jurists 6. Teachings of highly qualified publicists

Process of verification Custom or Customary Law

- Is inductive and positivistic. A general and consistent practice of states followed
- The process of finding what laws to place by them from a
themselves under. sense of legal obligation
- A manifestation of the fact that
international law is characterized by Elements:
individualism. 1. Material factor
how state behaves
Art. 38(1) of the Statute of the International Court of Justice Elements of material factor: Practice of states or
- does not speak of sources usus:
- says that:
a. Duration (diuturnitas)
1. The Court, whose function is to decide in accordance with may be either short or long; not the most important
international law such disputes as are submitted to it, shall element
apply:
Ex. Of long duration:
a. International conventions Paquete Havana, 170 U.S. 677, 687 (1900) on the exemption
whether general or particular, establishing rules of fishing vessels from capture as prize of war.
expressly recognized by contesting states

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Ex. Of short duration:
North Sea Continental Shelf Case which held that the short
duration itself will not exclude the possibility of a practice
maturing into custom provided that other conditions are
satisfied.
b. Consistency
continuity and repetition
c. Generality of the practice of states
uniformity and generality of practice need not be
complete but it must be substantial
Opinio juris
belief that a certain form of behavior is obligatory, is what
makes practice an international rule.
Dissenting states: subsequent contrary practice
Dissenting states are bound by custom unless they
had consistently objected to it while the custom
was merely in the process of formation
It is also possible that after a practice has been
accepted as law, contrary practice might arise
Evidence of state practice and opinio juris
a. Treaties
b. Diplomatic correspondence
c. Statements of national leaders and political advisers
d. Conduct of states
Instant Custom
A spontaneous activity of a great number of states
supporting a specific line of action
Usus and opinion juris in Humanitarian Law: The
Martens Clause
The Martens Clause
Until a complete code of laws of war has been
issued, inhabitants & belligerents are protected
under the rule on the principles of the law of
nations as they result from: usages of civilized
people, laws of humanity & public conscience.
To put the laws of humanity and the dictates of
public conscience on the same level as usages of
states or usus thus suggesting that even without
practice or usus or at least without consistent
practice there can emerge a principle of law based
on laws of humanity and the dictates of public
conscience.
2. Psychological or subjective factor
why they behave the way they do.
Treaties
Determine the rights and duties of states just as
individual rights are determined by contracts
Binding force comes from the voluntary decision of
sovereign states to obligate themselves to a mode
of behavior
Treaties and Custom
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If the treaty is intended to be declaratory of
customary law, it may be seen as evidence of
customary law
Adherence to treaties can be indicative also of
adherence to practice as opinio juris
If treaty comes later than a particular custom, treaty
should prevail
If a later treaty is contrary to a customary rile that
has the status of jus cogens, custom will prevail
The later custom, being the expression of a later
will, should prevail
A treaty is void if, at the time of its conclusion, it
conflicts with a preemptory norm of general
international law
Preemptory norm of general international law = 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
General Principles of Law Recognized by Civilized
Nations
- This has reference to principles of municipal law common
to the legal systems of the world
Judicial Decisions
- Decisions of the court have no binding force except
between the parties and in respect of that particular case
- Decisions do not constitute stare decisis
- Decisions of the ICJ are not only regarded as highly
persuasive in international circles but they have also
contributed to the formulation of principles that have
become international law.
Teachings of Highly Qualified Writers and Publicists
Publicists
- institutions which write on international law
The more significant ones are:
a. The International Commission
b. The Institut de Droit International
c. International Law Association
d. Restatement of Foreign Relations Law of the US
e. Annual publication of the Hague Academy of
International Law
Equity
When accepted, is an instrument whereby
conventional or customary
law may be supplemented or modified in order to achieve
justice
Where 2 parties have assumed an identical or a
reciprocal obligation, one party which is engaged
in a continuing non-performance of that obligation
should not be permitted to take advantage of a
similar non-performance of that obligation by the
other party
The Courts recognition of equity as part of
international law is in no way restricted by the
special power conferred upon it to decide a case ex
aequo et bono, if the parties agree thereto
 Kinds of Equity: f. protect human rights
1. Intra legem g. guarantee investments
within the law; the law is adapted to the facts of the case
2. Praeter legem Different Kinds of Treaties
beyond the law; used to fill the gaps within the law
3. Contra legem Multilateral Treaties Open to all states of the
against the law; refusal to apply the law which is seen as world; Create the norms
unjust which are the basis for a
general rule of law
Other Supplementary Evidence
1. UN Resolutions Can either be Codification
generally considered merely recommendatory but if Treaties or Law Making
they are supported by all the states, they are an expression of Treaties, or both
opinio juris communis Treaties that create Operate through the organs of
Collaborative the different states
2. Soft Law Mechanism 1. Universal scope
Non-treaty Agreements; international agreements not 2. Regional
concluded as treaties and therefore not covered by the Bilateral Treaties In the nature of contractual
Vienna Convention on the Law of Treaties agreements which create
shared expectations such as
o Administrative Rules trade agreements of
guide the practice of states in relation to international various forms; Contract
organizations Treaties

Requirements for Multilateral Treaties to become

CHAPTER 3 THE LAW OF TREATIES universal law:
1. Number of contracting parties
Various names of Treaties 2. Generality of the acceptance of specific rules
a. Conventions
b. Pacts The Making of Treaties
c. Covenants 1. Negotiation
d. Charters done thru foreign ministries, diplomatic conferences
e. Protocols
f. Concordat Power to negotiate
g. Modus vivendi - negotiators must possess powers to negotiate.
They represent the most deliberate form of commitment - an act relating to the conclusion of a treaty by one who has
through which governments cooperate with one another. no proper authorization has no legal effect UNLESS
Generic term used: International agreements confirmed by his state.

Primary source of law and treaties: 2. Authentication of text

1969 Vienna Convention on the Law of Treaties signing of the document; so that states will know the
- Governs treaties between states contents & avoid misunderstanding
- Entered into force in January 1980
3. Consent to be bound:
Definition of Treaties a. Signature
An international agreement concluded between b. Exchange of Instruments
States in written form and governed by c. Ratification
international law, whether embodied in a single d. Acceptance
instrument or in 2 or more related instruments and e. Approval
whatever its particular designation f. Accession
Even oral agreement can be binding, however, only g. Other means if so agreed
written agreements that are new, come under the
provisions of the Vienna Convention. Ratification
Quatar v. Bahrain, ICJ 1994 Is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its
Characteristics to make it binding: representatives.
1. Commitment was very specific Purpose: To enable the contracting parties to
2. There was a clear intent to be bound. examine the treaty more closely and to give them
an opportunity to refuse to be bound by it should
Functions of Treaties they find inimical to their interest.
a. Sources of international law Ratification is then followed by either:
b. Charter of international organizations 1. Exchange of ratification
c. Used to transfer territory 2. Bilateral treaties or multilateral treaties
d. regulate commercial relations 3. Deposit of ratification
e. settle disputes

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4. Accession to a treaty
states which did not participate in the initial negotiation
may express their consent to be bound by accession when:
a. the treaty provides that such consent may be expressed by
that State by means of accession;
b. it is otherwise established that the negotiating States were
agreed that such consent may be expressed by that State by
means of accession; or
c. all the parties have subsequently agreed that such consent
may be expressed by that State by means of accession.
6. Reservations
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 the State.
In this sense, treaties are different from statutes.
Statutes must necessarily apply to all.
Reservations are meant only for multilateral
treaties because in bilateral treaties, a reservation
by one party means a rejection of the treaty and
necessitates re-negotiation.
Interpretative declarations
Different from treaties
Not meant to be a derogation from the treaty but an
expression of how a state understands its adoption
of the treaty.
7. Entry into force of treatiesdate agreed or once
consent given (but provisional application can also apply)
Treaties enter into force on the date agreed upon by
the parties.
Where no date is indicated, the treaty enters into
force once consent has been given.
8. Application of treaties
Fundamental rules:
PACTA SUNT SERVANTAevery treaty in force
is BINDING upon the parties and must be
PERFORMED by them in GOOD FAITH
A party may NOT INVOKE INTERNAL LAW as
justification for its failure to perform a treaty
It is binding upon each party in respect of its entire
territory unless a different intention appears in the
treaty or is otherwise established.
9. Interpretation of Treaties
a. Objective approach
interpretation according to the ordinary meaning of the
words
b. Teleological approach
- interpretation according to the telos or purpose of the
treaty.
c. Subjective approach
- honors special meaning given by the parties.
When there are ambiguities in the meaning of a
treaty, resort may be made to supplementary
sources, including:
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a. Preparatory work of the treaty; or
b. Leads to a result which is manifestly
absurd or unreasonable.
In case there is conflict among official texts, the
language that is agreed by the parties as
authoritative is followed.
Invalidity of Treaties
1. Error
- relates to a fact or situation which was assumed by
that State to exist at the time when the treaty was
concluded and formed an essential basis of its
consent to be bound by the treaty.
2. Fraud
- State has been induced to conclude a treaty by the
fraudulent conduct of another negotiating State
3. Corruption of a Representative of a State
- The expression of a States consent to be bound by
a treaty which has been procured thru the
corruption of its representative directly or
indirectly by another negotiating State.
4. Coercion of a Representative of a State
- The expression of a States consent to be bound by
a treaty which has been procured by the threat or
use of force in violation of the principles of
international law embodied in the Charter of the
UN.
5. Coercion of a State by the threat or use of force
6. Violation of jus cogens
- treaty is void if, at the time of its conclusion, it
conflicts with a preemptory norm of general
international law (jus cogens).
- Peremptory norm of general international law
- 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 cam ne
modified only by a subsequent norm of
general international law having the same
character.
Amendment and Modification of Treaties
Amendment
formal revision done with the participation, at least
in its initial stage, by all the parties to the treaty
Modification
involves only some parties
GR on amendments: Treaty may be amended by agreement
of the parties. The procedure that is followed is the same as
that for the formation of treaties.
Termination of Treaties
A treaty may be terminated or suspended according to the:
a. terms of the treaty or
b. with the consent of the parties
a treaty with a definite period may also expire.
May also end when the purpose for the treaty has
already been achieved.
Mere change of government or severance of
diplomatic relations does not terminate or suspend
a treaty.
Other modes of terminating a treaty
1. Material Breach MUNICIPAL INTERNATION
Consists in: LAW AL LAW
a. Repudiation of the treaty not sanctioned by the present Dualist or As to Product of Treaties and
Convention; or Pluralist source local custom custom grown
b. Violation of a provision essential to the accomplishment Theory or of among states
of the object or purpose of the treaty legislation
*when As to Regulates Regulates
2. Supervening Impossibility of Performance international relations relations relations
- Results from the permanent disappearance or and they between between states
destruction of an object indispensable for the municipal regulate individual
execution of the treaty. law are in persons under
- If the impossibility is only temporary, it may be conflict, the
invoked only as a ground for suspending the Municipal state
operation of the treaty. law As to Law of Law between
- May not be invoked if: must prevail their sovereign sovereign states
o The impossibility id the result of a breach substanc over
by that party either of an obligation under e individuals
the treaty or of any other international Monism or Two theories:
obligation owed to any other party to the Monistic
treaty. Theory A. Municipal law subsumes and is superior to
international law
3. Rebus sic stantibus *Internationa B. International law is superior to Domestic
- Necessary that it should have resulted in a radical l and Law (supported by Kelsen)
transformation of the extent of the obligations Municipal
imposed by it, may, under certain conditions, afford laws belong
the party affected a ground for invoking the to only one
termination or suspension of the treaty system of law
- Change of fundamental conditions
- Changes must have increased the burden of the Municipal Law in International Law
obligations to be executed to the extent of Follows the dualist tradition and blocks domestic
rendering performance something essentially law from entry into the international arena
different from the original intention. A state which has violated a provision of
international law cannot justify itself by recourse to
Procedure for the Termination of Treaties its domestic law
1. Notify other parties of ground and measure proposed
A state which has entered into an international
Notification shall indicate the measure proposed to
agreement must modify its law to make it conform
be taken with respect to the treaty and the reasons to the agreement.
therefor.
2. If no objection, carry out the measure proposed
3. If there is an objection, follow Art. 33
International Law in Domestic Law
How does international law become part of domestic law for
Authority to Terminate
dualists?
Belongs to the one who has authority to enter into 1. Doctrine of Transformation
the treaty Based on a strict dualist approach
In the Philippines, authority to conclude treaties is
It must be expressly and specifically transformed
shared between the Senate and the President
into domestic law through the appropriate
constitutional machinery such as an act of Congress
Succession to Treaties
or Parliament
Clean Slate Rule: newly independent state is not bound to
Treaties do not become part of the law of a state
maintain in force or to become a party to any treaty by
reason only of the fact that at the date of the succession of unless it is consented to by the state
states, the treaty was in force in respect of the territory to
which the succession of state relates. 2. Doctrine of Incorporation
- Does not apply to treaties affecting boundary The law of nations, wherever any question arises
regimes: which is properly the object of its jurisdiction, is
a. A boundary established by a treaty or here adopted in its full extent by the common law,
b. Obligations and rights established by a and it is held to be part of the law of the land.
treaty and relating to the regime of a
boundary. Philippines adheres to the dualist theory and at the
same time adopts the incorporation theory and
CHAPTER 4 INTERNATIONAL LAW AND thereby makes international law part of domestic
MUNICIPAL LAW law
International law can be used by Philippine courts
Dualism v. Monism to settle domestic disputes

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 Art. 2, Sec. 2 of the Constitution: only customary
law and treaties which have become part of
customary law become part of Philippine law by
incorporation
Conflict between International Law and Domestic Law:
International Rule
Before an international tribunal, a state may not
plead its own law as an excuse for failure to
comply with international law
Exception: Art. 46 of Vienna Convention = in
cases where the constitutional violation was
manifest and concerned a rule of its internal law of
fundamental importance
Manifest = objectively evident to any State
conducting itself in the matter in accordance with
normal practice and in good faith
Conflict between International Law and Domestic Law:
Municipal Rule
Domestic courts are bound to apply the local law
Should a conflict arise between an international
agreement and the Constitution, the treaty would
not be valid and operative as domestic law
Art. 8, Sec. 5 of the Constitution explicitly
recognizes the power of the Supreme Court to
declare a treaty unconstitutional; however, even if
declared unconstitutional, the treaty will not lose its
character as an international law.
CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW
STATES
Subjects of International Law
- entities endowed with rights and obligations in the
international order and possessing the capacity to
take certain kinds of action on the international
plane.
- Those with international personality
Objects of International Law
those who indirectly have rights under or are
beneficiaries of international law through subjects
of international law.
States
predominant actors; a community of persons more
or less numerous, permanently occupying a definite
portion of territory, independent of external control,
and possession an organized government to which
the great body of inhabitants render habitual
obedience.
The state as a person of international law should possess
the following qualifications:
a. a permanent population;
b. a defined territory
c. government
d. the capacity to enter into relations with other
States.
Four elements:
a. People
b. Territory
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c. Government
d. Sovereignty
Commencement of their Existence
State, as a person of international law, should possess the
following qualifications: (Montevideo Convention of 1933
on Rights and Duties of States)
1. Permanent population
PEOPLE
- a community of persons sufficient in
number and capable of maintain the
permanent existence of the community
and held together by a common bond of
law.
2. Defined territory
an entity may satisfy this requirement even if its
boundaries have not been finally settled, if one or
more of its boundaries are disputed, or if some of
its territory is claimed by another state
An entity does not necessarily cease to be a state
even if all its territory has been occupied by a
foreign power or if it has otherwise lost control of
its territory temporarily.
3. Government
- that institution or aggregate of institutions by which
an independent society makes and carries out those
rules of action which are necessary to enable men
to live in a social state
- It is the National Government that has legal
personality and it is such that is internationally
responsible for the actions of other agencies and
instrumentalities of the state
- Temporary absence of government does not
terminate the existence of a state
4. Capacity to enter into relations with other States
SOVEREIGNTY
- independence from outside control
- the capacity to enter into relations with other
States.
Dependent on recognition.
Principle of self-determination
- sovereignty as an element of a
state is related but not identical to
this principle
- All people have the right of self-
determination.
- By virtue of this, they freely
determine their political status
and freely pursue their economic,
social and cultural development.
Levels of claim to Self-determination
1. Establishment of New State
the claim by a group within an established state to
break away and form an new entity
2. Does not involve Establishment of New State
simply involves claims :
a. To be free from external coercion
b. To overthrow effective rulers and establish a new
governmentthe assertion of the right of revolution; or the
claim of the people within an entity to be given autonomy
International law has not recognized a right of
secession from a legitimately existing state.
Recognition of States
- the act of acknowledging the capacity of an entity
to exercise rights belonging to statehood.
B. Successor state assumes all obligations and enjoys all the
rights of the predecessor.
In summary:
When a state succeeds another state with respect to
particular territory, the capacities, rights and duties of the
predecessor state with respect to that territory terminate and
are assumed by the successor state.

Can an entity claim to be a state before it is recognized by As to state property, subject to agreement between
other states? 2 views: predecessor and successor states, title passes as follows:

Declaratory Theory Constitutive Theory (a) where part of the territory of a state becomes territory of
Recognition is merely Recognition constitutes a another state, property of the predecessor state located in
declaratory of state that territory passes to the successor state;
the existence of the state (b) where a state is absorbed by another state, property of
Its being a state depends It is what makes a state a the absorbed state, wherever located, passes to the absorbing
upon its state and state;
possession of the required confers legal personality on (c) where part of a state becomes a separate state, property
elements the entity of the predecessor state located in the territory of the new
and not upon recognition state passes to the new state.
States may decide to
With respect to public debts, subject again to agreement
recognize an
between the states concerned, responsibility for the public
entity as a state even if it does
debt of the predecessor, and rights and obligations under its
not
contracts, remain with the predecessor state, except as
have all the elements of a
follows:
state
(a) where part of the territory of a state becomes territory of
Recognition of Government
another state, local public debt, and the rights and
- act of acknowledging the capacity of an entity to
obligations of the predecessor state under contracts relating
exercise powers of government of a state
to that territory, are transferred to the successor state;
- If a change in government in an existing state
(b) where a state is absorbed by another state, the public
comes about through ordinary constitutional
debt, and rights and obligations under contracts of the
procedure = recognition by others comes as a
absorbed state, past to the absorbing state;
matter of course
(c) where part of a state becomes a separate state, local
- 2 cases:
public debt, and rights and obligations of the predecessor
o THE TINOCO ARBITRATION
state under contracts relating to the territory of the new state,
(Declaratory) pass to the new state.
o UPRIGHT V. MERCURY BUSINESS
MACHINES CO. (Constitutive) With respect to treaties (already touched on in the Chapter
on Treaties), the Vienna Convention is followed. The rules
Consequences of Recognition or Non-Recognition are:
A government, once recognized, gains increased
prestige and stability (1) When part of the territory of a state becomes territory of
a. Doors of funding agencies are opened another state, the international agreements of the
b. Loans are facilitated predecessor state cease to have effect in respect of the
c. Access to foreign courts and immunity from suit are territory and the international agreements of the successor
gained state come into force there. This reflects the moving treaty
d. Military and financial assistance also come within rule or moving boundaries rule. If X has a treaty with Y,
reach and part of Y is transferred to Z, X may seek relief from
Absence of formal recognition bars an entity from treaty obligation under rebus sic stantibus.
all these benefits or, at least, access to them may be
suspended (2) When a state is absorbed by another state, the inter-
Admission of a government to the UN does not national agreements of the absorbed state are terminated and
mean recognition by all members but only to the the international agreements of the absorbing state become
extent of the activities of the organization applicable to the territory of the absorbed state. Third states
Recognition of a regime is terminated when may appeal to rebus sic stantibus.
another regime is recognized.
(3) When a part of a state becomes a new state, the new
Succession of States state does not succeed to the international agreements to
Views on Succession which the predecessor state was party, unless, expressly or
A. The new state succeeds to no rights or obligations of the by implication, it accepts such agreements and the other
predecessor state but begins with a tabula rasa party or parties thereto agree or acquiesce. This applies the
clean slate theory.
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(4) Pre-existing boundary and other territorial agreements
continue to be binding notwithstanding. This is the uti
possidetis rule.
The consequences of the re-unification of West and East
Germany were governed by the German Unification Treaty
of 1990. The special case of Hongkongs return to China in
1997 were governed by the 1984 Sino-British Joint
Declaration on the Question of Hongkong.
Issues on Succession of States
1. Succession to territory
when a state succeeds another state with particular
territory, the capacities, rights and duties of the predecessor
state with respect to that territory terminate and are
assumed by the successor state
2. Succession to state property
this is subject to agreement between predecessor and
successor states
3. Succession to contracts
this is subject to agreement between the states concerned
o Responsibility for the public debt of the predecessor, and
rights and obligations under its contracts remain with the
predecessor state but is subject to certain exceptions
4. Succession to treaties
a. Moving Treaty Rule / Moving Boundaries Rule
when part of the territory of a state becomes territory of
another state, the international agreements of the
predecessor state cease to have effect in respect of the
territory
o Relief from treaty obligation is rebus sic stantibus
b. When a state is absorbed by another state,
international agreements of the absorbed states are
terminated
c. Clean Slate Theory
when part of a state becomes a new state, the new state
does not succeed to the international agreements to which
the predecessor state was a party unless, expressly or
impliedly, it accepts such agreements
d. Uti possidetis Rule
pre-existing boundary and other territorial agreements
continue to be binding notwithstanding
Fundamental Rights of States
1. Independence
capacity of a state to provide for its own well-being and
development free from the domination of other states
o Right to exercise within its portion of the globe, to
the exclusion of others, the functions of a state
o Restrictions upon a states liberty either from
customary law or from treaties do not deprive a state of
independence
o There is duty not to interfere in the internal affairs of
other states
o Rights flowing from independence:
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a. Jurisdiction over its territory and permanent
population
b. Right to self-defense
c. Right of legation
2. Equality
equality of legal rights irrespective of size or power of the
state
o Within the General Assembly, the doctrine means
one state, one vote.
3. Peaceful Co-Existence
mutual respect for each others territorial integrity and
sovereignty, mutual non-aggression, non-interference in
each others affairs and the principle of equality.
Some Incomplete Subjects
1. Protectorates
dependent states which have control over their internal
affairs but whose external affairs are controlled by another
state; referred to as:
a. Autonomous states
b. Vassal states
c. Semi-sovereign
d. Dependent states
2. Federal state
a union of previously autonomous entities
o The central organ will have personality in
international law but the extent of international
personality of the component entities can be a problem
3. Mandated and Trust Territories
territories placed by the League of nations under one or
other of the victorious allies of WWI
o After WWII, this was replaced by trusteeship system
4. Taiwan
a non-state territory which de jure is part of China
5. The Sovereign Order of Malta
the Italian Court of Cassation in 1935 recognized its
international personality
6. The Holy See and Vatican City
recognized under Lateran Treaty
recognized the state of the Vatican City and
the sovereignty of the Holy See in the field
of international relations as an attribute that
pertains to the very nature of the Holy See, in
conformity with its traditions and the demands
of its mission in the world.
- it has no permanent population.
CHAPTER 6 OTHER SUBJECTS OF
INTERNATIONAL LAW
INTERNATIONAL ORGANIZATIONS
An organization that is set up by treaty among
2 or more states which have international
personality
Constituent instruments of international
organizations are multilateral treaties, to
which the well-established rules of treaty
interpretation apply
 Non-governmental organizations (NGO)set
up by private persons
Although international organizations have
personality in international law, their powers
and privileges are by no means like those of
states since it is limited by the constitutional
instrument that created them
Only states are members
Advisory Opinion on the Use of Nuclear Weapons about the
WHO:
International organizations
governed by the Principle of Specialty
they are invested by the States which create them
with powers, the limits of which are a function of
the common interests whose promotion those
States entrust to them.
Powers conferred on international organizations
normally the subject of an express statement in their
constituent instruments but in order to achieve their
objectives, they possess subsidiary powers which are not
expressly provided for in the basic instruments which
govern their activities.
Immunities
based on the need for the effective exercise of their
functions and not from sovereignty
These immunities come from the conventional
instrument creating them.
The United Nations: Structure and Powers
Came into being on Oct. 24, 1945
A universal organization charged with
peacekeeping responsibilities, development of
friendly relations among nations, achievement of
international cooperation in solving international
problems of an economic, social, cultural and
humanitarian character, and the promotion of
human rights and fundamental freedoms for all
human beings without discrimination
UN is enjoined against intervening in matters
which are essentially within the domestic
jurisdiction of any state
International Constitutional Supremacy Clausein
the hierarchy of international organizations, the UN
occupies a position of preeminence so if there is a
conflict with other international agreement,
obligations under the UN Charter shall prevail
Principal organs of UN:
1. General Assemblyit has plenary power in the
sense that it may discuss any question or any matters within
the scope of the Charter
GA distinguishes between
a. Important questionsdecided by 2/3 majority
of the members voting and present
b. Other questionsdecided by the majority
2. Security Councilhas primary responsibility for the
maintenance of international peace and security
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There are 15 member states, 5 permanent and the
others are elected for 2 year terms in accordance with
equitable geographic representation.
Distinguishes between
a. Procedural matters
b. All other mattersrequires 9 affirmative votes, including
the concurring votes of the permanent members
The Charter does not specify what matters are procedural,
hence, decision on whether a matter is procedural or not
requires the concurrence of the permanent members
Abstention = veto
3. Economic and Social Council (ECOSOC)has 54
members elected for 3 year terms
4. Trusteeship Councilsupervises non-self governing
territories.
The Council suspended operations after Palau became
independent on Oct. 1, 1994
5. International Court of Justice (ICJ)principal judicial
organ of the UN
6. Secretariatcomprises a Secretary General and such
staff as the Organization may require
Secretary Generalelected to a 5 year term by General
Assembly upon the recommendation of the Security
Council, subject to veto power
Other Agencies:
1. United Nations Educational, Scientific and Cultural
Organizations (UNESCO)
2. International Civil Aviation Organization (ICAO)
3. World Health Organization (WHO)
4. Food and Agricultural Organization (FAO)
5. World Bank
6. International Monetary Fund (IMF)
Regional Organizationsthey are neither organs nor
subsidiary organs of UN
They are autonomous international organizations
having an
institutional affiliation with UN by concluding agreements
with UN.
Created by international agreements for the
purpose of dealing with regional problems in
general or with specific matters be they economic,
military or political
ASEAN
established on Aug. 8, 1967 in Bangkok, Thailand with
the signing of the Bangkok Declaration by the 5 original
member countries: Indonesia, Malaysia, Philippines,
Singapore and Thailand
Brunei Darrusalam joined on Jan. 8, 1994; Vietnam
on July 28, 1995; Laos and Myanmar on July 23,
1997; Cambodia in 1999.
3 main objectives:
a. Promote economic, social and cultural development of the
region through cooperative programs
b. Safeguard the political and economic stability of the
region against big power rivalry
c. Serve as a forum for the resolution of intra-regional
differences
INSURGENTS
Protocol II
first and only international agreement exclusively
regulating the conduct of parties in a non-international
armed conflict
Requirements for Material Field of Application:
a. Armed dissidents must be under responsible command
b. They must exercise such control over a part of its territory
as to enable them to carry out sustained and converted
military operations and to implement this Protocol
Insurgent groups which satisfy the material field of
application may be regarded as para-statal
entities possessing definite if limited form of
international personality
a. They are recognized as having belligerent status
against the de jure government
b. They are seen as having treaty making capacity
Common Article 3
for armed conflict not of an international
character
Prohibited acts under Article 3:
a. Violence to life and person, in particular, murder of all
kinds, mutilation, cruel treatment and torture
b. Taking of hostages
c. Outrages upon personal dignity, in particular, humiliating
and degrading treatment
d. Passing of sentences and the carrying out of executions
without previous judgment pronounced
NATIONAL LIBERATION MOVEMENTS
- Organized groups fighting in behalf of a whole
people for freedom from colonial powers.
Characteristics:
a. They can be based within the territory which they are
seeking to liberate or they might find a base in a friendly
country
b. Their goal is self-determination
to free themselves from colonial domination, or a racist
regime or foreign occupation
c. There is the ultimate goal of controlling a definite
territory
d. They must have an organization capable of coming into
contract with other international organizations
INDIVIDUALS
Possess limited rights and obligations (deriving
from customary international law) in international
law
Obligations of individuals are those arising from
the regulation of armed conflicts
When individual rights are violated, however,
individuals still have to rely on the enforcement
power of states; but some treaties have provided for
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the right of individuals to petition international
bodies alleging that a contracting state has violated
some of their human rights
CHAPTER 7 TERRITORY: LAND, AIR, OUTER
SPACE
Territory in International Law
an area over which a state has effective control
Exact boundaries might be uncertain but there
should be a definitive core over which sovereignty
is exercised
Acquisition of territoryacquisition of sovereignty
over territory
Includes land, maritime areas, airspace and outer
space
Modes of Acquisition of Sovereignty over Territory
1. Discovery and Occupation
Occupation
acquisition of terra nullius
territory which prior to occupation belonged to
no state or which may have been abandoned
by a prior occupant
- There is abandonment when occupant leave the territory
with the intention of not returning
- Discovery of terra nullius is not enough to establish
sovereignty; it must be accompanied by effective control
WESTERN SAHARA CASE
HELD:
Territories inhabited by tribes or peoples having a social and
political organization were not regarded as terra nullius.
The information furnished to the Court shows that at the
time of colonization, Western Sahara was inhabited by
peoples which, if nomadic, were socially and politically
organized into tribes and under chiefs competent to
represent them.
THE ISLAND OF PALMAS
HELD:
ContiguityUS also argued that Palmas was US territory
because the island was closer to the Philippines than to
Indonesia which was then held by the Netherlands East
Indies. The arbitrator said there was no positive international
law which favored the US approach of terra firma, where
the nearest continent or island of considerable size gives title
to
the land in dispute. The arbitrator held that mere proximity
was not an adequate claim to land noted that if the
international community followed the proposed United
States approach, it would lead to arbitrary results.
Continuous and peaceful display of sovereigntythe
Netherlands' primary contention was that it held actual title
because the Netherlands had exercised authority on the
island since 1677. The arbitrator noted that the US had
failed to show documentation proving Spanish sovereignty
on the island except those documents that specifically
mentioned the island's discovery. Additionally, there was no
evidence that Palmas was a part of the judicial or
administrative organization of the Spanish government of
the Philippines.
However, the Netherlands showed that the Dutch East India
Company had negotiated treaties with the local princes of
the island since the 17th century and had exercised
sovereignty, including a requirement of Protestantism and
the denial of other nationals on the island. The arbitrator
pointed out that if Spain had actually exercised authority,
than there would have been conflicts between the two
countries but none are provided in the evidence.
In resolving island territorial disputes, the following 3
important rules must be followed:
1. Title based on contiguity has no standing in international
law
2. Title by discovery is only an inchoate title
3. If another sovereign begins to exercise continuous and
actual sovereignty and the discoverer does not contest this
claim, the claim by the sovereign that exercises authority is
greater than a title based on mere discovery
EASTERN GREENLAND CASE
HELD:
A claim to sovereignty based not upon some particular act or
title such as treaty or cession but merely upon continued
display of authority, involves 2 elements each of which must
be shown to exist: (a) intention and will to act as sovereign,
and (b) some actual exercise or display of such authority.
Another circumstance which must be taken into account is
the extent to which the sovereignty is also claimed by some
other Power.
One of the peculiar features of the present case is that up to
1931, there was no claim by any Power other than Denmark
to the sovereignty of Greenland.
2. Prescription
requires effective control and the object isnot terra
nullius
o The required length of effective control is longer than
inoccupation
o May be negated by a demonstrated lack of acquiescence
by the prior occupant
3. Cession
acquisition of territory through treaty
o A treaty of cession which is imposed by a conqueror is
invalid
4. Conquest and Subjugation
o Conquest
taking possession of a territory through armed force
o It is necessary that the war had ended either by treaty or
by indication that all resistance had been abandoned
o Now, conquest is proscribed by international law
o No territorial acquisition resulting from the use or threat
of force shall be recognized as legal
5. Accretion and Avulsion
sovereignty by operation of nature
o Accretion
gradual increase of territory by the action of nature
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o Avulsion
sudden change resulting for instance from the action of a
volcano
Is Contiguity a Mode of Acquisition?
It is impossible to show a rule of positive
international law to the effect that islands
situated outside the territorial waters should
belong to a state from the fact that its territory
forms part of the terra firma (Las Palmas Case)
Intertemporal Law
Rules in effect at the time of the acquisition should be
applied
AIRSPACE
Each state has exclusive jurisdiction over the air space
above its territory
Sovereignty over airspace extends only until
where outer space begins
Consent for transit must be obtained from the
subjacent nation
State Aircraft
aircraft used in military, customs and police services
No state aircraft of a contracting State shall fly over the
territory of another State or land thereon without
authorization by special agreement or otherwise, and in
accordance with the terms thereof.
(Art. 3[a] of Chicago Convention on International Civil
Aviation)
Aircraft must not only not be attacked unless there
is reason to suspect that the aircraft is a real threat
but also that a warning to land or change course
must be given before it is attacked (Lissitzyn)
Civilian aircraft should never be attacked
OUTERSPACE
Outer space, wherever that might be, and celestial
bodies, are not susceptible to appropriation by any
state
The Moon and other celestial bodies shall be used by all
State Parties to the Treaty exclusively for peaceful
purposes. (1967 Treaty on the Exploration and Use of Outer
Space)
CHAPTER 8
TERRITORY: LAW OF THE SEA
Importance of the Sea
1. Medium of communication
2. Contain vast natural resources
Grotius
elaborated the doctrine of the open seas which considers
the high seas as res communis accessible to all
o The doctrine recognized as permissible the delineation of a
maritime belt by littoral states as an indivisible part of its
domain
o Maritime belt = territorial sea
Convention on the Law of the Sea of 1982 prevailing
law on maritime domain

Art. 2 of the 1982 Law of the Sea provides that
1. Sovereignty of a coastal State extends, beyond its land
territory and internal waters and, in case of an archipelagic
State, its archipelagic waters, to an adjacent belt of sea,
described as territorial sea
2. Sovereignty extends to the air space over the territorial
sea as well as to its bed and subsoil
3. Sovereignty over the territorial sea is exercised subject to
this Convention and to other rules of international law
Territorial Sea
belt of sea outwards from the baseline and up to 12
nautical miles beyond
The width of this territorial belt of water is the 12-
mile rule
However, where the application of the 12-mile rule
to neighboring littoral states would result in
overlapping the rule is that the dividing line is
the median line equidistant from the opposite
baselines
Equidistance rule does not apply where historic
title or other special circumstances require a
different measurement
Baselines
the low-water line along the coast as marked on large scale
charts officially recognized by the coastal State
Two ways of drawing the Baseline:
1. Normal baseline
one drawn following the low-water line along the coast as
marked on large scale charts officially recognized by the
coastal State
this line follows the curvatures of the coast and
therefore would normally not consist of straight
lines
2. Straight baseline
drawn connecting selected points on the coast without
appreciable departure from the general shape of the coast
Most archipelagic states use straight baselines
Art. 47 of the Convention on the Law of the Sea
the length of such baseline shall not exceed 100
nautical miles, except that up to 3% of the total
number of baselines enclosing any archipelago may
exceed that length up to a maximum length of 125
nautical miles
Sovereignty over Territorial Sea
same as sovereignty over its land territory
o The sea and the strait are subject to the right of innocent
passage by other states
Right of Innocent Passage
passage that is not prejudicial to the peace, good order or
security of the coastal state
Applies to ships, aircrafts, and submarines
Coastal states have the unilateral right to verify the
innocent character of passage, and it may take the necessary
steps to prevent passage that it determines to be not innocent
Internal Waters
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all waters landwards from the baseline of the territory
Coastal states may regulate access to its ports
(Nicaragua case)
Archipelagic Waters
An archipelagic state may designate sea lanes and air routes
thereabove, suitable for the continuous and expeditious
passage of foreign ships and aircraft through or over its
archipelagic waters and the adjacent territorial sea
The concept of the archipelagic waters is similar
to the concept of internal waters under the
Constitution of the Philippines, and removes straits
connecting these waters with the economic zone or
high sea from the rights of foreign vessels to
transit passage for international navigation
Bays
Well-marked indentation whose penetration is in such
proportion to the width of its mouth as to contain land-
locked waters and constitute more than a mere curvature of
the coast
Considered as internal waters of a coastal state
Indentation shall not be regarded as bay unless its
area is as large as, or larger than, that of the semi-
circle whose diameter is a line drawn across the
mouth of that indentation
Historic Bays
treated by the costal state as internal waters on the basis of
historic rights acknowledge by other states
Contiguous Zone
an area of water not exceeding 24 nautical miles from the
baseline
It extends 12 nautical miles from the edge of the
territorial sea
Coastal state exercises authority over that area to
the extent necessary to prevent infringement of its
customs, fiscal, immigration or sanitation authority
over its territorial waters or territory and to punish
such infringement
However, the power of control given to the littoral
state does not change the nature of the waters
Beyond the territorial sea, the waters are high sea
and are not subject to the sovereignty of the coastal
state
Exclusive Economic Zone or Patrimonial Sea
an area extending not more than 200 nautical miles
beyond the baseline
Coastal state has rights over the economic sources
of the sea, seabed and subsoil but the right does
not affect the right of navigation and overflight of
other states
The delimitation of the overlapping EEZ
between adjacent states is determined by agreement
Two Primary Obligations of Coastal States:
1. They must ensure through proper conservation and
management measures that the living sources of the EEZ are
not subjected to over exploitation
2. They must promote the objective of
optimum utilization of the living sources

The Continental (Archipelagic) Shelf
refers to the
a. Seabed and subsoil of the submarine areas adjacent
to the coastal state but outside the territorial sea, to a
depth of 200 meters or, beyond that limit, to where the
depth allows exploitation
b. Seabed and subsoil of areas adjacent to islands
The Deep Seabed: Common Heritage of Mankind
These are areas of the seabed and ocean floor, and
their subsoil, which lie beyond any national
jurisdiction
These are the common heritage of mankind and
may not be appropriated by any state or person
Islands
naturally formed area of land, surrounded by water, which
is above water at high tide
Artificial islands or installations are not islands
Important due to the possibility of exploiting oil
and gas resources around them
Islands can have their own territorial sea, exclusive
economic zone and continental shelf
Rocks which cannot sustain human habitation or
economic life shall have no exclusive economic
zone or continental shelf, but can have a territorial
sea
The High Seas
all parts of the sea that are not included in the territorial
sea or in the internal waters of a state
The flag state has exclusive jurisdiction over its
ships on the high seas to the extent not limited by
agreement
Six Freedoms which High Seas are subject to:
a. Navigation
b. Overflight
belongs to both civilian and military aircraft
c. Fishing
includes the duty to cooperate in taking measures to
ensure the conservation and management of the living
resources of the high seas
d. Lay submarine cables and pipelines
e. Construct artificial islands and structures
f. Scientific research
Hot Pursuit
Art. 111 allows hot pursuit of a foreign vessel
where there is good reason to believe that the ship
has violated laws or regulations of a coastal state
This must commence when the foreign vessel is
within the internal waters, archipelagic waters,
territorial waters, exclusive economic zone,
continental shelf or the contiguous zone of the
pursuing state
Hot pursuit must stop as soon as the ship pursued
enters the territorial waters of its own state or of a
third state
May be carried out only by warships or military
aircraft, or any other ships or aircraft properly
marked for that purpose
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Settlement of Disputes
Peaceful settlement is compulsory
CHAPTER 9
JURISDICTION OF THE STATES
Jurisdiction authority to affect legal interests
The scope of a states jurisdiction over a person,
thing or event depends on the interest of the state in
affecting the subject in question
Corresponding to the powers of the government,
jurisdiction can be:
1. Legislative jurisdiction
prescribe norms of conduct
2. Executive jurisdiction
enforce the norms prescribed
3. Judicial jurisdiction
adjudicate
International law limits itself to criminal rather than
civil jurisdiction
Civil jurisdiction is subject for private international
law or conflicts of law
Jurisdiction may also be acquired by treaty
However, there are 5 popular principles on
jurisdiction
TERRITORIALITY PRINCIPLE
This is generally supported in customary law
Fundamental source of jurisdiction is sovereignty
over territory
It is necessary that boundaries be determined
To have jurisdiction, occupation is not enough;
control must also be established (Las Palmas Case)
Boundary
separating the land areas of two states is determined by the
acts of the states expressing their consent to its location
When the boundary between 2 states is a navigable
river
- its location is the middle of the channel of
navigation
When boundary between 2 states is a non-
navigable river or lake
- its location is the middle of the river or
lake
Effects Doctrine
State also has jurisdiction over acts occurring
outside its territory but having effects within it
1. Subjective Territorial Principle
a state has jurisdiction to prosecute and punish for crime
commenced within the state but completed or consummated
abroad
2. Objective Territorial Principle
State has jurisdiction to prosecute and punish for crime
commenced without the state but consummate within its
territory
Jurisdiction over Foreign Vessels in Philippine Territory
we follow the English Rule
1. French Rule
 crimes committed abroad a foreign merchant vessel should any illegal act of violence or depredation committed for
not be prosecuted in the courts of the country within whose private ends on the high seas or outside the territorial control
territorial jurisdiction they were committed unless their of any state
commission affects the peace and security of the territory
b. Genocide
2. English Rule acts committed with intent to destroy, in whole or in part,
crimes perpetrated under such circumstances are in a national, ethical, racial or religious group
general triable in the courts of the country within whose
territory they were committed c. Crimes against humanity
acts committed as part of a widespread or systematic
NATIONALITY PRINCIPLE attack directed against any civilian population
This is generally supported in customary law
Every state has jurisdiction over its nationals even 1. Attack directed against any civilian population
when those nationals are outside the state 2. Extermination internal infliction of conditions of
life
3. Enslavement
Effective Nationality Link
4. Deportation or forcible transfer of population
used to determine which 2 states of which a person is a
5. Torture
national will be recognized as having the right to give
6. Forced pregnancy
diplomatic protection to the holder of dual nationality
7. Persecution
8. Crime of Apartheid
Corporations 9. Enforced disappearance of persons
state has jurisdiction over corporations organized under
its d. War crimes
laws grave breaches of the Geneva Convention of 12 August
1949, namely, any of the following acts against persons or
Maritime vessels property protected under the provisions of the relevant
state has jurisdiction over vessels flying its flag Geneva Convention
Same applies to aircraft and spacecraft
e. Aircraft piracy
Stateless Persons f. Terrorism
persons who have no nationality
PASSIVE PERSONALITY PRINCIPLE
a. De jure stateless This does not enjoy wide acceptance
persons who have lost their nationality, if they had one, State may apply law, criminal law, to an act
and have not acquired a new one committed outside its territory by a person not its
b. De factor stateless national where the victim of the act was its national
persons who have a nationality but to whom protection is
Not accepted for ordinary torts or crimes but is
denied by their state when out of the State
increasingly accepted as applied to terrorist and
other organized attacks on a states nationals by
PROTECTIVE PRINCIPLE reason of their nationality, or to assassination of a
This is generally supported in customary law states diplomatic representatives or other officials
State may exercise jurisdiction over conduct
outside its territory that threatens its security as CONFLICTS OF JURISDICTION
long as that conduct is generally recognized as modes of resolving conflict of jurisdiction
criminal by states in the international community
However, this is strictly construed to those 1. Balancing Test
offenses posing a direct, specific threat to national if the answer is yes to all the following questions, then the
security. court will assume jurisdiction:
Examples of acts covered by Protective Principle:
a. Plots to overthrow the government a. Was there an actual or intended effect on a states
b. Forging its currency foreign commerce?
c. Plot to break its immigration regulations b. Is the effect sufficiently large to present a
cognizable injury to the plaintiffs, and, therefore, a
UNIVERSALITY PRINCIPLE violation of the anti-trust law?
This recognizes that certain activities, universally c. Are the interests of the state sufficiently strong,
dangerous to states and their subjects, require vis--vis those of other nations, to justify an
authority in all community members to punish assertion of extraordinary authority?
such acts wherever they may occur, even absent a
link between the state and the parties or the acts in 2. International Comity
question state will refrain from exercising its jurisdiction is it is
unreasonable
Examples of acts covered by Universality Principle: Factors to consider in determining
a. Piracy unreasonableness:

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a. Link or connection of the activity to the territory of the
regulating state
b. Character of the activity to be regulated
c. Existence of justified expectations that might be protected
or hurt by the regulation
d. Likelihood of conflict with regulation by another state
3. Forum non conveniens
application is discretionary with the court
If in the whole circumstances of the case it be
discovered that there is real unfairness to one of the
suitors in permitting the choice of a forum which is
not the natural or proper forum, either on the
ground of convenience of trial or the residence or
domicile of parties or of its being the locus
contractus or locus solutionis
EXTRADITION
the surrender of an individual by the state within whose
territory he is found to the state under whose laws he is
alleged to have committed a crime or to have been convicted
of a crime
This is a process that is governed by a treaty
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Legal right to demand extradition and the
correlative duty to surrender a fugitive exist only
when created by treaty
Procedure for extradition is normally through
diplomatic channels
Principles governing Extradition
1. No state is obliged to extradite unless there is a treaty
2. Differences in legal system can be an obstacle to
interpretation of what the crime is
3. Religious and political offenses are not extraditable
Bail in Extradition Cases
Bail may be granted to a possible extraditee only
upon a clear and convincing showing that:
1. He will not be a flight risk or a danger to the
community
2. There exist special, humanitarian and compelling
circumstances.