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EXPLANATION OF THE MAIN TOPICS1.Private International LawPublic International LawDeals with private individuals.It is really municipal or national in character because each State has its own conflict rules.3. Relief or reliefs prayed for may be obtained from municipal tribunals.It governs the relation of sovereign States and other entities with an international personality.They are generally accepted principles of public international law, giving to the subject an international nature.Sanctions may be in the form of peaceful remedies. Example: diplomatic negotiation, mediation, conciliation, arbitration, diplomatic efforts, settlement by the international court of justice.In extreme cases, forcible measures may be employed like war and reprisal.BASIC OR FOUNDATION OF PUBLIC INTERNATIONAL LAWIn actual practice, common consent and natural moral law are determinative factors in interstate relationship. This is founded on the reason that common consent necessarily commands the faithful compliance of commitments made, or arrived at, in the course of a common agreement. There are three schools of thought on this matter:(1) Natural Law School of Thought- which claims that the basis is the natural common law, which, in turn, is based on the rule of human conduct implanted by the Creator in the very nature of man in his conscience to do what is right and to avoid what is evil.(2) Positivist School of Thought- According to this school of thought, the basis is the common consent of States.(3)Eclectic School of Thought- This school of thought holds the view that Public International Law is premised both on the moral natural law and on common consent.

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

Q- Why is public international law observed by private individuals?A- Private individuals observe public international law because as rational beings, they realize that the laws of nations are founded on natural moral law and on common consent and that these are for their own good. In fact, it will be observed that there is an increasing diplomatic and economic intercourse among nations represented by their respective heads of states and ambassadors, As the saying goes, No man is an island and each country needs the other not only in terms of goods, products and commodities of all kinds that may be needed in the pursuit of their respective business or trade but also in terms of technology and funding.Q- What is the relation between public international law and municipal law in general?A- Although international in character, public international law could be considered part of the municipal law of a State because of the doctrine of incorporation of political law. Under this doctrine, a State is, by reason of its membership in the family of nations, bound by the generally accepted principles of international law, the same being considered as part of its own laws. In consonance with this doctrine, the Philippines is bound by any resolution which is duly approved by the United Nations General Assembly, or by any treaty, commitment, or agreement, reached in an international convention, especially when the Philippines is a party or a signatory to the said agreement or treaty. But even if it is not a signatory, the Philippines is bound by the Hague Convention because it embodied the generally accepted principles of international law binding upon all States.Public International LawMunicipal LawIt is more difficult to enforce because it is enforced by the collective wills of equals (sovereign states).The principal sanctions are reprisals and war.The international order is relatively decentralized.4. Collective responsibility is the rule for failures or omissions.Obedience to municipal law is easier to enforce because the citizens recognize the superiority of their government and its duly constituted authorities.Law is enforced through criminal punishment or execution of judgment.It is relatively a centralized coercive order because there is one central authority (the municipal government) generally legislates for everybody within the State.4. Individual responsibility generally prevails.2.RELATIONSHIP BETWEEN PUBLIC INTERNATIONAL LAW AND MUNICIPAL LAWAlthough international in character, public international law could be considered part of the municipal law of a State because of the doctrine of incorporation in political law.Q- Is public international law independent from municipal law?A- According to the Monistic View: Both law depend on each other and both are ultimately directed to the same individual because a State is composed of individuals. While, ostensibly, public international law deals with foreign affairs and national law concerns itself with domestic affairs, every so-called domestic affair of a State can be made the subject matter of an international agreement. Hence, it is transformed into a foreign affair.According to the Dualistic or Pluralistic View: Public international law is completely distinct from municipal law; and international law and national law are mutually independent of each other and because the subject matter of public international law is foreign affairs and the subject matter of municipal law is domestic affairs. Besides, public international law is created by the cooperation of two or more States while national law is created by acts of one State, and even by actuations which are not officially acts of State.What is the conflict between public international law and municipal law?It depends.If the conflict is to be decided by a local court and the case is with respect to the conflict of public international law and our Constitution, then our Constitution should be upheld being the highest law of the land. REASON: Section 5[2][a], Article VIII of the 1987 Constitution which provides that the Supreme Court shall have the power to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: x x x (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. x x x If the conflict is with respect to international law and a statue, the rules of international law are given equal standing with, but are not superior to, national legislative enactments. A treaty may repeal a statue, and a statue may repeal a treaty; thus, the principle of lex posterior derogate priori, that which comes last in time, will usually be upheld by the municipal tribunal.If the conflict is to be decided by an internationally created tribunal, the recognized principle is that national laws must yield to the laws of nations. REASON: International law provides the standards by which legality of States conduct is to be determinedQ- What prevails in case of conflict between a treaty and a municipal constitution?A- From the point of view of the State itself, our Constitution provides that a treaty may be declared unconstitutional by the courts. From this point of view, the municipal law prevails. The example is the case of Ichong vs. Hernandez where it was then held that the Retail Trade Nationalization Law prevails over the Treaty of Amity with China.NOTE: The decision in Ichong vs. Hernandez no longer holds true because under the new law, otherwise known as the Retail Trade Liberalization Act 2000, Republic Act No. 8762, foreign individuals or corporations can now engage in retail trade subject to the conditions and limitations prescribed by the said law.BAR QUESTION, 1980Q- The 1968 Vienna Convention on Road Signs and Signal, which was ratified by the Philippines Government under Presidential Decree No. 207 recommended the enactment of the local legislation of the safety signs devices. Acting on that recommendation, Letter of Instruction No. 229 was issued requiring the procurement by all vehicle owners of reflectorized triangular early warning devices as a means of preventing nighttime vehicular accidents.Discuss briefly the validity or invalidity of said LOI from the standpoints of (1) international law; (2) police power; and (3) due process.A- The Government of the Republic of the Philippines ratified the 1968 Vienna Convention on Road Signs and Signals, hence the said LOI was issued precisely to be able to fulfill its obligation to install safety signs and devices and to carry out the recommendation of the said convention. The said LOI is therefore valid.The said letter of instruction is a valid exercise of police power. It is a measure designed to insure traffic safety and to avoid traffic accident.The said LOI did not violate due process. As mentioned, the said LOI is a valid police power measure which is precisely for the protection of motorists. Conjectural claims of petitioner as to number of nighttime vehicular collisions cannot be a basis for setting aside a requirement of law that was promulgated after a careful study by the Executive Department. The letter of Instruction is issued in the exercise of police power for traffic safety. Furthermore, there is nothing in Letter of Instruction No. 229 which compels car owners to purchase the prescribed early warning device. Vehicle owners can produce the device themselves with a little ingenuity. (Agustin vs. Edu, SCRA 195)Q- The Department of Health (DOH) issued an administrative order implementing a resolution adopted by the World Health Organization (WHO) to the effect that public officers are not allowed to smoke inside the premises of government buildings. It is on account of this resolution that the petitioner asked that President Noynoy Aquino be sanctioned for violating the said order of DOH. President Aquino claims that the said order is not applicable because there is no enabling law since the same is not incorporated in the municipal law. Which contention is correct?A- There said resolution of WHO is not binding unless and until it becomes a law or it is established as a customary rule. In otherwords, legislation is necessary to transform the said resolution into a domestic law. (Pharmaceutical and Health Care Association of the Philippines vs. Duque, G.R No. 173034, October 9, 2007)Q- In the meantime that the said resolution is not yet transformed into a domestic law, how shall it be treated?A- It only partakes of the nature of a soft law and not a treaty, which means that it is only an expression of non-binding norms, principles and practices that merely influence state behavior. (Ibid.)

Q- If the said resolution is embodied in a treaty which became the basis of the order of the DOH, and it is a treaty where the Philippines is the signatory, how shall it be treated?A- The said order, which is based on the resolution of the WHO, becomes obligatory, because the Philippines is a signatory of the treaty, and it is bound by its commitment to comply with the same.Q- What is a soft law?A- As above-mentioned, a soft law is merely an expression of non-binding norms, principles and practices that merely influence state behavior. Hence, it is not binding because it is not yet transformed into a domestic law. For it to be binding, the same must be established as a customary rule.Q- What is the purpose of international law?A- Public international law strives to regulate the actuation of States insofar as they affect the international scene and in some instances, international law allows a State to legally perform acts within the territory of another State.3.RECOGNITION OF STATESRecognition of a State- Recognition is the act of acknowledging the existence of a State, a government or belligerency. It is a political act which is exercised by the political department of the State. It is therefore discretionary on the part of a State whether it desires to recognize another State. There are two theories on recognition: (1) the majority view, also known as the declarative view, which holds that recognition merely affirms an existing fact. (i.e., if the State possesses all the essential elements it depends on the recognizing State if it will affirm or not that such State being recognized has indeed all the essential elements of the State;(2) the minority view, also known as the constitutive view, which holds that recognition is compulsory and legal. This means that recognizing State may be compelled to extend recognition if the elements of a State established.

What is required in order that a government may be recognized?The government must enjoy the support and popular consent or approval of the people and it must show willingness and ability to discharge its international obligations.Different doctrines regarding recognition of any government

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

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

Express recognition;(2) Implied recognition;(3) De Facto recognition; and(4) De Jure recognitionDe FactoDe JureDe Facto recognition does not bring about full diplomatic intercourse. It is generally provisional and it is extended on the belief of the recognizing State that some of the requirements for recognition are absent. It does not give title to assets of the State held or situated abroad. De Jure recognition brings about full diplomatic intercourse and observance of diplomatic immunities and confers title to assets abroad.Distinguish de facto recognition from de jure recognition4.DE FACTO AND DE JURE GOVERNMENT

Q- Distinguish de jure government from de facto government.A- A de jure government is an organized government of a State which has the general support of its people. A de facto government is characterized by the fact that it is not founded upon the existing constitutional law of State. (28 C.J. 75)

Q- What are the different kinds of de facto government?

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

1. That its existence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and2. That while it exists it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered by military authority, but they may be administered also by civil authority, supported more or less directly by military force. (Ibid.)

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

Q- Was it a de jure government or a de facto government?A- Initially, the government was a de facto government because there was no constitutional basis of its creation, the same not having been sanctioned either under the 1935 or the 1973 Constitution. However, the de facto government at the start acquired a de jure status when it obtained the continuous public acceptance and support of the people and the recognition of practically all foreign governments.Q- If the said government is a revolutionary government, what was its effect on the Bill of Rights under the 1937 Constitution?A- The Bill of Rights under the 1937 Constitution was not operative during the interval between February 28, 1986 and March 24, 1986 when the Freedom Constitution took effect by presidential proclamation.Q- How about the government under Gloria Macapagal-Arroyo that was established after the ouster of President Joseph Estrada, is it de jure or de facto?

A- The Supreme Court considered it a de jure government because President Joseph Estrada already gave up the presidency.

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

5.SUCCESSION OF STATE AND SUCCESSION OF GOVERNMENT

SUCCESSION OF STATESUCCESSION OF GOVERNMENTPolitical laws are abrogated while municipal laws remain in force.Treaties are discontinued except those dealing with local rights and duties.3. All rights of the predecessor State are inherited, but the successor State has the discretion to assume or reject liabilities.The State continues as the same international person except that its lawful representative is changed. When this happens, what are the consequences? All rights of the predecessor government are inherited by the successor. If the new government was organized due to a constitutional reform, which is duly ratified in a plebiscite, all obligations of the predecessor are also assumed. However, if the new government is established through violence, the new government may lawfully dishonor the personal or political obligations of the predecessor, but not those obligations or contracts entered into in the ordinary course of official business.Distinguish succession of State and succession of government6.SUBJECTS AND OBJECTS OF PUBLIC INTERNATIONAL LAW

SUBJECTS AND OBJECTS OF PUBLIC INTERNATIONAL LAWQ- Distinguish each from the other.A- Subject of International Law- is an entity directly endowed with rights as well as obligations in the international legal order. Example: In the exercise of its rights, the Philippines, as a sovereign State, can enforce said right and may even sue in the International Court of Justice. On the other hand, the Philippine Republic may be sued in the international tribunal for its official actuations.Object of International Law- An object is a person or thing indirectly vested with rights and obligations in the international order. Example: A Filipino private citizen has rights which owe to be respected by other States but if he has some grievances, he has to course the same through the Republic and its diplomatic offices.Q- What are the subjects of international law? A- 1. States 2. Colonies 3. Dependencies 4. BelligerentQ- Are private individuals regarded as subjects of international law?

A- The rights of individuals as against State are now protected. In fact, in case of crimes against humanity like genocide, victims are afforded the opportunity to participate in the proceedings.NOTE: In cases where international law does not give an individual direct rights and obligations on account of a treaty or a general principle, the individual, in such a case, may only be treated as an object of international law, and for which reason, such individual does not have a standing to espouse a direct claim in the international legal order.BAR QUESTION, 1982

Q- What is the status of an individual under International Law?A- Individuals may be regarded as true subjects of International Law. Individuals are also directly and individually subjects of obligations, responsibilities and rights established by International Law. The statement that States as juristic persons are subjects of International Law only means that individual human beings are indirectly and collectively, in their capacity as organs or members of the State, subjects of the obligations, responsibilities, and rights presented as obligations, responsibilities and rights of the State. (Kelsen, 114)7.VATICAN CITY AND THE HOLY SEEIs the Vatican or the Holy See a State?Yes, it possesses the essential elements of a State. REASONS:1.There are around 1,000 people almost all of whom are individuals residing therein by virtue of their office;2. There is a definite territory (approximately 100 acres);3. There is a government (under the Pope himself);4. There is independence (the State of the Vatican City was created by the Lateran Treaty of February 11, 1929 between Italy and the Holy See. Under the terms of the Treaty, Italy recognizes the full ownership, exclusive dominion, and sovereign authority and jurisdiction of the Holy See over the Vatican);5. The Vatican City has a sufficient degree of civilization;6. The Vatican City has been recognized by almost all the countries of the world including Communist Russia.

Difference between the Vatican City and the Roman Catholic ChurchThe Vatican City is concerned with material things and occupies a definite territory, while the Roman Catholic Church is preoccupied with things of the soul and the spirit, hence, it is tied to no limited territory. Both, however, are subjects of international law; both have some international rights, the violations of which can amount to international delicts.Can the Holy Father, as head of the Catholic Church, enter into treaties?Yes. As head of the Catholic Church, the Holy Father can enter into ordinary treaties for and in behalf of the Vatican City. He may also enter into special treaties which regulates ecclesiastical matters.8.DOCTRINE OF STATE CONTINUITY Doctrine of State continuity- Under this doctrine, a State does not lose its identity but remains one and the same international person notwithstanding changes in the form of its Government, in its headship, in its rank and title, in its dynasty.Example: France which retained her personal identity from the time the law of Nations came into existence until the present day, although she acquired, lost, and regained parts of her territory , changed her dynasty, was a kingdom, a republican empire, again a kingdom, again a republic, again an empire, and is now, finally as it seems a republic.

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

ACT OF STATE DOCTRINE AS APPLIED IN

CREDIT SUISSE VS. U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, 130 7.3d 342, 1347-48

In relation to

PNB VS. U.S. DISTRICT COURT OF HAWAII04-71843 (D.C. NO. MDL-00840-MLR)FEBRUARY 4, 2005In this case, the Swiss assets of the Marcos estate had been frozen by the Swiss government at the request of the Republic of the Philippines, which seek to recover them. The class plaintiffs obtained an injunction from the U.S. District Court of Hawaii requiring the Swiss Banks to hold the assets for the benefit of the class plaintiffs.The U.S. 9th Circuit Court of Appeals issued a writ of mandamus and held that the injunction violated the Act of State Doctrine, which preclude American Courts from declaring invalid a foreign sovereigns official act, that is, the freeze order of the Swiss government.The Swiss government released the funds frozen in Switzerland for transfer to the Philippine National Bank in escrow pending a determination of proper disposal by a competent court in the Philippines.The said funds were deposited by the PNB in Singapore. Thereafter, the assets were forfeited to the Republic of the Philippines following the decision of the Philippine Supreme Court.

The U.S. District Court of Hawaii ruled and ordered as follows:

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

Hence, PNB filed a petition for mandamus in the U.S. 9th Circuit Court of Appeals to restrain the District court from enforcing its Order to Show Cause and from pursuing discovery against the Bank officer.This case is: PNB VS. U.S. DISTRICT COURT OF HAWAII 04-71843(D.C. No. MDL-00840-MLR) [FEBRUARY 4, 2005]PNB contented that the entire proceeding against it for its transfer of funds to the Republic of the Philippines violated the Act of State Doctrine, and that the transfer of funds was made in accordance with the judgment of the Philippine Supreme Court.

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

HELD:1. The U.S. 9th Circuit Court of Appeals held that the orders of the U.S. District Court of Hawaii had violated the Act of State Doctrine and reasoned out as follows:

A) To obtained assets from PNB, or to hold PNB in contempt for the transfer of those assets to the Republic of the Philippines, the District Court necessarily held invalid the forfeiture judgment of the Philippine Supreme Court.B) Regarding the argument of class plaintiffs that the Act of State Doctrine is directed at the executive and legislative branches of foreign governments and did not apply to judicial decisions; the U.S. 9th Circuit Court of Appeals said:(b.1) A judgment of a court may be an Act of State.(b.2) There was no question that the judgment of the Philippine Supreme Court gave effect to the public interest of the Philippine Government. The forfeiture action was not a mere dispute between private parties. It was an action initiated by the Philippine Government pursuant to its statutory mandate to recover property allegedly stolen from the treasury. (In re Estate of Ferdinand E. Marcos- Human Rights Litigation, 94 F. 3d at 546)(b.3) The 9th Circuit Court of Appeals had earlier characterized the collection efforts of the Republic of the Philippines to be governmental.(b.4) The subject matter of the forfeiture action thus qualified for treatment as an Act of State. C) Regarding the other argument of class plaintiffs that the Act of State Doctrine was inapplicable because the judgment of the Philippine Supreme Court did not concern matters within its own territory, the U.S. 9th Circuit Court of Appeals ruled, thus:The act of the Philippine Supreme Court was not wholly external. Its judgment which the District Court declared invalid was issued in the Philippines and much of its force upon Philippine National Bank arose from the fact that the Bank is a Philippine Corporation. (Callejo vs. Bancomer, S.A. 764 F. 2d 1101, 1121-25 (5th Cir. 1985)Even if we assume for purposes of decision that the assets were located in Singapore, we conclude that this fact does not preclude treatment of the Philippine judgment as an act of State in the extraordinary circumstances of this case. D) Further agreements of the U.S. 9th Circuit Court of Appeals:(a) The interest of the Republic of the Philippines in the enforcement of its laws does not end at its boarders. The fact that the escrow funds were deposited in Singapore does not preclude the application of the Act of State Doctrine. xxx(b) The Republic of the Philippines did not simply intrude into Singapore in exercising its forfeiture jurisdiction. The presence of the assets in Singapore was a direct result of events that were the subject of the decision in Credit Suisse, supra, where the U.S. 9th Circuit Court of Appeals upheld as an Act of State a freeze order by the Swiss Government, enacted in anticipation of the request of the Philippine government to preserve the Philippine governments claims against the very assets in issue today. (Credit Suisse, 130 F. 3d at 1346-47)

10.BELLIGERENT AND INSURGENTCOMMUNITIES

Who are referred to as insurgents or rebels?Insurgents or rebels are regarded as organized groups who are in a state of armed hostility towards an established government on account of political reasons or purposes.

What, if any, are the rights of insurgents or rebels under international law?None, but if the eivil strife has reached a stage where the sovereignty of the State over the insurgent community is already threatened and jeopardized, certain insurgent rights may be tacitly admitted. When this happens, the following principles shall govern the so-called Insurgent right: A foreign State shall refrain from interfering in the hostilities involving the parent State and insurgent community. Example: (1) The foreign State shall not extend hospitality to the rebels; (2) The foreign State should not extradite the insurgent to the parent State.2. If the insurgents committed hostile acts against the foreign state, it may punish them, or turn them over to the parent State.3. If the acts committed are in the nature of piracy, they are considered private in character, hence, no insurgent rights arise4. If the existence of insurgent rights is admitted by a foreign State, the parent State is still liable for the acts committed by the insurgent community within the jurisdiction of the said parent State.5. If an insurgent community has been given insurgent rights, it does not mean that the community has acquired the status of a belligerent and neither is there an official recognition of the insurgents as a belligerent community.When are the insurgents considered as belligerents and when is their community considered as a belligerent community?

When the insurgency has reached a serious proportion, the rebels, instead of being merely considered insurgents, may be properly called belligerents and their community a belligerent community. This is, however, subject to the following conditions:1. The hostilities must be of the character of war and carried on in accordance with laws of war.2. The end must be political in character.3. The proportions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible.4. The conduct of hostilities and general government of the revolting community must be in the hands of the responsible organization. (Wilson and Tucker, International Law, p. 69)11.THE UNITED NATIONS

Historical background of the United NationsThe League of Nations was organized in 1919, five years after World War I broke out in 1914. Its purpose is to achieve international peace and encourage international cooperation. The United States was not a member of the League of Nations. The League of Nations was officially dissolved on April 19, 1946.What caused the creation of United Nations after the collapse of the League of Nations?We have already suffered two world wars since the beginning of the 19th century. All nations, whether or not they were involved, shared equally in the ills of war. When battles are fought, the lives of men and women, including innocent children, disabled and even those who are too old to fight, are either endangered, severely damaged or lost. Costs of living are inflated, and after the war, depression and starvation occur, economic ills and immense losses to business are extensive. Wars, after all, are not instruments of achievements. They cannot decide international disputes to the satisfaction of warring nations. Wars cannot make peace. They destroy.Dr. Oswaldo Araha, Ex-President of the General Assembly of the United Nations, said:The First World War cost 8,000,000 dead, 15,000,000 mutilated, 3,000,000 wounded more than the entire population of Brazil and 400 billion dollars went up in smoke of battle, a sum of which according to Murray Butler, would have given every family in the countries engaged in the struggle, a furnished house with lands to cultivate, with a surplus sufficient to purchase all the private properties in France and Belgium and construct a university and library in the most important cities of the nations which were devastated in this terrible catastrophe.

If we consider the global cost of the last war (World War II) and add the amount required for the re-establishment of the world situation as it was prior to the war, we should arrive at the conclusion never imagined by man as possible, that there has been a waste per capita of the world population of $10,000 or 200 Brazilian contos This cost can never be paid by us who made the war possible, but will have to be paid by many innocent generations, and its liquidation would require more than a century of work on the part of the victors and vanquished alike. History does not record a peace completed by the generation which raged the war War sacrifices the present, but much more it compromises the future.x x x

Indeed, after every war and after all the bitterness that results from war, mankind is taught that it is peace, after all, that is needed by all the countries of the world to enable them and their people to live in happiness. Peace is what we need to build the world, and peace comes from the heart, and not from the minds of men.This desire for peace overwhelmed the hearts of the great men and women who survived the war. They have agreed to establish and pursue the idea of organizing the United Nations.PURPOSES OF THE UNITED NATIONSFour (4) salient purposes of the United NationsThe four (4) salient purposes of the United Nations are the following:(1) The attainment of international peace and security;(2) The development of friendly relations;(3) The achieving of international cooperation;(4) The use of the United Nations as the center for the harmonizing of actions to attain these three aims.

PRINCIPLES OF THE UNITED NATIONSPrinciples of the United NationsThe Organization is supposed to act in accordance with the following principles:(1) Sovereign equality;(2) Good faith;(3) Peaceful settlement of disputes;(4) Avoidance of threat or use of force;(5) Members to assist United Nations;(6) United Nations to ensure that non-members will act properly;(7) Non-intervention.

ORGANS OF THE UNPrincipal organs of the United NationsThe principal organs of the United Nations are the following:(1) General Assembly;(2) Security Council;(3) Economic and Social Council;(4) The Trusteeship Council;(5) International Court of Justice;(6) Secretariat (Article 7, No. 1, UN Charter)Explain each.(1) General Assembly-Composition: Consists of all the members of the organization, each of which is entitled to send not more than 5 representatives and 5 alternates.Voting power: Each member has only one vote.Classification of functions:(1) Deliberative, like initiating studies and making recommendations for the development of international law, etc.;(2) Supervisory, such as receiving and considering annual and special reports from other organs of the UN;(3) Financial, like consideration and approval of the budget of the organization, the apportionment of expenses, etc.;(4) Elective, such as the election of the non-permanent members of the Security Council; and(5) Constituent, such as the admission of members and the amendment of the Charter.Session of the General Assembly: Its regular session is held once a year. It may hold special sessions called by the Secretary General at the request of the Security Council or a majority of the members.Required vote on several questions:(a) On important questions (i.e., peace, security, membership, elections, trusteeship system, budget) 2/3 vote of the members present and voting is required;(b) On other questions, a simple majority is sufficient. To classify a question as important, the vote required is a simple majority.(2) Security Council- It is the key organ in the maintenance of international peace and security.

Composition: It is composed of five (5) permanent members, namely: China, France, Russia, the United Kingdom and the United States; and ten (10) elective members, elected for two-year terms by the General Assembly, five from African and Asian States, two from latin American States, two from Western European and other States, and one from Eastern European States.Voting power: For the elective members, no immediate reelection is allowed.Classification of functions: The Security Council is expected to function continuously, and session may be called at any time; thus, the representative of the member States should always be available.Required vote on several questions: Each member of the Security Council shall have one vote, but distinction is made between the permanent members and the non-permanent members in the resolution of substantive questions.

BAR QUESTION, 1984

Q- Is the United Nations authorized to resort to enforcement action, including the use of force, in regard to the Iran-Iraq war? If so, through what agency? State the legal basis of the power and conditions for its exerciseA- The Security Council may exert effort to settle the dispute but if this fails, it may resort to enforcement action like the use of air, naval and land forces to restore international peace or it may require the member states to put into effect interruption of economic, transportation, or communications relation with Iran or Iraq using as basis the provision of Article 33 in relation to Articles 41 & 42 of the U.N. Charter.The U.N. Charter requires the affirmative both of seven of the eleven members constituting the Council, and said seven votes must include the concurrent vote of all five permanent members of the Council like U.S., Russia, China, Great Britain and France. This is needed for the Security Council to assume jurisdiction and make the resolution as aforementioned.

BAR QUESTION, 1984

Q- At the United Nations, the Arab League, through Syria, sponsors a move to include in the agenda of the General Assembly the discussion of this matter:The Muslim population of Mindanao, Philippines has expressed the desire to secede from the Republic of the Philippines in order to constitute a separate and independent state and has drawn attention to the probability that the continuation of the armed conflict in Mindanao constitutes a threat to peace.You are asked by the Philippine Government to draft a position paper opposing to move. Briefly outline your arguments supporting the Philippine position, specifically discussing the tenability of the Arab Leagues action from the standpoint of International Law.

A- The motion being sponsored by the Arab League is a matter within the domestic jurisdiction of the Philippines. Besides, the movement to secede from the Republic of the Philippines is not an international dispute which a U.N. member may bring to the attention of the Security Council or of the General Assembly.(3) Economic and Social CouncilComposition: Composed of fifty four (54) members elected by the General Assembly for a three-year term.Functions:(1) It shall exert efforts towards higher standards of living, conditions of economic and social progress and development;(2) It shall exert efforts to solutions of international economic, social, health and related problems;(3) It shall exert efforts for universal respect for and observance of human rights and fundamental freedoms.Voting power: Decisions are reached by a simple majority vote.

(4) The Trusteeship CouncilComposition:(a) It is composed of members of the UN administering trust territories;(b) It is composed of permanent members of the Security Council not administering trust territories; and(c) It is composed by as many other members elected by the General Assembly as may be necessary to ensure that the total number of members is equally divided between those members of the UN which administer trust territories and those which do not.Voting Power:(a) Each member of the Trusteeship Council shall have one vote. (b) Decisions of the Trusteeship Council shall be made by a majority of the members present and voting. (Article 89, UN Chapter)(5) International Court of JusticeFunction: It is the principal judicial organ of the UN (Article 1, Statue of the International Court of Justice)Composition and Qualification: The court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries, or are jurisconsults of recognized competence in international law.The court shall consist of 15 members, no two of whom may be nationals of the same state. (Article 2 and 3, ibid.)

How are they elected?

They shall be elected by the General Assembly and the Security Council from a list of persons nominated by the national groups in the permanent court of Arbitration. (Article 4, ibid.)120Term of office:

They are elected for 9 years and may be re-elected; provided, however, that of the judges elected at the first election, the term of 5 judges shall expire at the end of 3 years and the terms of five more judges shall expire at the end of 6 years.

Court is permanently in session: The court shall remain permanently in session except during the judicial vacations, the dates and duration of which shall be fixed by the Court.(Article23,ibid.)

Jurisdiction of the case:

The jurisdiction of the court compromises all cases which the parties refer to it and all matters specifically provided for in the Charter of the UN or in treaties and conventions in force. (Article 36, ibid.)

Basis of Courts jurisdiction:

It is based on the consent of the parties. Art. 36 of the Statue of the International Court of Justice provides: The State parties to the present Statue may at any time declare that they recognize as compulsory ipso facto, and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court, disputes concerning:

a.The interpretation of a treaty;b. Any question of international law;c.The existence of any fact which, if established, could constitute a breach of an international obligation;d.The nature or extent of the reparation to be made for the breach of an international obligation.

Can it give advisory opinion?

The court may give an advisory opinion on any legal question at the request of whatever body that may be authorized by or in accordance with the UN Charter to make such a request (Article 65, ibid.) (i.e., General Assembly or the Security Council) or the organs of the UN when authorized by the General Assembly.

Official languages of the Court:

French and English. If the parties agreed that the case shall be conducted in French, the judgment shall be delivered in French. If the parties agree that the case shall be conducted in English, the judgment shall be delivered in English. (Article 39 [1], ibid.)

Can other languages be used?

Yes, if requested by the parties or by any of the parties (Article 39 [3], ibid.)

BAR QUESTION, 1979

Q- May the United States be sued in our courts for the value of private properties requisitioned by its Army during the last World War, as well as Japan for the Mickey Mouse money in payment for private properties, which have not been redeemed until now? May the suit be brought to the International Court of Justice?

A- The said suit may not be brought to the international law of justice without the consent of the USA. REASON: In contentious cases such as this one, consent of the parties is needed.

BAR QUESTION, 2006Q-(a.) Where is the seat of the International Court of Justice? (b.) How many are its members? (c.) What is the term of term of its office? (d.) Who is its incumbent President? What is his/her nationality?

A-(a.) The seat of the ICJ is at the Peace Palace, Hague (Netherlands). (b.) Members of ICJ: fifteen members, no two of whom may be nationals of the same State. (c.) Term of their office: members of ICJ are elected for nine years and may be re-elected. (d.) Incumbent President of ICJ: Rosalyn Higgins, a British.

(6) Secretariat -The chief administrative organ of the UN.

Composition- Headed by a Secretary-General who is chosen by the General Assembly upon recommendation of the Security Council. He shall be the chief administrative officer of the Organization. (Article 97, UN Charter)

Functions

1. The Secretary-General is the highest representative of the UN, and is authorized to act in its behalf.2. Acts as Secretary in all meetings of the General Assembly, the Security Council, the Economic and Social Council, and the Trusteeship Council.

3. The Secretary-General and his staff are international civil servants, and they cannot receive instructions from any government or source outside the UN.4. The Secretary-General enjoys the right of political initiative, and may bring to the attention of the UN Security Council any matter which, in his opinion, may threaten international peace and security.

MEMBERS OF THE UNITED NATIONSCategory of members of the United Nations:(a) The original members; and (b) Those who were subsequently admitted as members.

Who are the original members?

The original members are the States who signed the UN Charter and ratified it.

Who are the additional members?

The additional members are those who were subsequently admitted.

Qualifications for membership

Membership in the UN is open to all peace-loving states which accept the obligations under the charter and are able and willing to carry out their obligations.

Vote needed to admit, suspend or expel a member of the UN

TO ADMIT TO SUSPEND TO EXPEL

The decisions of 2/3 of those present and voting in the General Assembly upon the recommendation of at least nine (9) members of the Security Council, including all the permanent members of the Security Council.The same vote is required to suspend.2/3 vote of those present and voting in the General Assembly upon recommendation of a qualified majority of the Security Council on grounds of persistently violating the principles in the Charter.THE UN CHARTER(It serves as the Constitution that governs the relations of international persons)

Can it be amended?Yes, it may be amended in the following manner:By 2/3 vote of the General Assembly and ratified with their respective constitutional processes by 2/3 of the members of the UN, including all the permanent members of the Security Council:A general conference, called by a majority vote of the General Assembly and any nine (9) members of the Security Council, may propose amendments by a 2/3 vote of the conference.

When shall the amendment take effect?It shall take effect when ratified by 2/3 of the members of the UN, including the permanent members of the Security Council.

12. FUNDAMENTAL RIGHTS OF STATESRights of existence, integrity and self-preservation

Right of sovereignty and independence

Right of equality

Right of property and jurisdiction

Right of legation or diplomatic intercourse

CODE: ESEP-LEG

E-xistenceS-overeigntyE-qualityP-roperty and jurisdictionLEG-ation

RIGHTS OF EXISTENCE- A State exists because it possesses the essential elements, thus: (1) People; (2) Territory; (3) Government; and(4) Sovereignty. It is on this basis that it acquires a personality in the international order, and arising from this personality are corresponding rights and responsibilities. Its success and ability to exercise its expected role in the world order depends on its continued existence.In fact, to be able to ensure its survival, Article 5 of the UN Charter grants it the RIGHT OF INDIVIDUAL OR COLLECTIVE SELF-DEFENSE.

148SELF-DEFENSE Self-defense It is right of a State to defend itself from an external aggression. The necessity for self-defense is determined by the party attacked and in the exercise of this right, it has the right to repel force with force.

Requisites of self-defense under Article 51

There is an armed attackThe attack must be against a UN MemberThe Security Council must not have acted yet

Define armed attack

The UN Charter has no definition of armed attack. Whether or not an attack exists and who is responsible for the same will be determined by the Security Council.

COLLECTIVE SELF-DEFENSECollective self-defense It is the collective right of the members of a particular organization to defend themselves from an aggression or attack which endangers their peace and safety.

Example:a. NATO (North Atlantic Treaty Organization)- This is a treaty signed in Washington on April 4, 1949, composed of Nations in the North Atlantic area. Their agreement: The parties agreed among others, that an armed attack against one or more of them in Europe or in North America is considered as an attack against all of them.

b. SEATO (Southeast Asia Treaty Organization) - This is also known as the Manila Pact or the South East Asia Collective Defense Treaty of September, 1954. Their agreement: An aggression against any of the signatories will be considered as endangering their peace and safety, in which case, they obligate themselves to meet common danger in accordance with their constitutional

Rationale behind collective self-defense or alliances

1. There is strength in union and there is security in collective strength.

2. To give the members the feeling of safety through mutual protection and outright combination of strength.

CASES: 1.Nuclear power facility in Iraq was destroyed by war planes of Israel sometime in 1981. Israel claims that it was justified in doing so and interposed the ground of preemptive self-defense. The matter reached the UN Security Council for resolution. RULING: It was condemned as a clear violation of the UN Charter and the norms of international conduct, hence, Israel was directed to refrain from such act.

2. In connection with U.S. missile attack which resulted to the destruction of two Iranian offshore oil production installations, alleging that Iranian oil platforms were used as a staging facility for attacks by Iranian forces against shipping in the Gulf, the U.S. justified its attack as a legitimate use of force and self-defense. RULING: The ICJ was not convinced that the U.S. attack was necessary as a response to the shipping incidents in the Gulf. In other words, the force was not considered a proportionate use of force in self-defense. The U.S. could claim the right of self-defense only if it is the victim of an armed attack by Iran. (Iran vs. U.S., November 6, 2003)

3. A State may not exercise the collective right of self-defense without the explicit request for assistance from the State or States on whose behalf the right is to be exercised. This is the ruling of the International Court of Justice when the U.S. came to the defense of El Salvador, Honduras and Costa Rica. In this case, the court noted that there was no explicit request for assistance by the said countries, hence, the ICJ ruled that the condition sine qua non required for the exercise of the right of collective self- defense was not fulfilled. (Nicaragua vs. U.S. 1986). (I.C.J Rep. 14, June 27, 1986)

2. RIGHT OF SOVEREIGNTY AND JURISDICTIONSovereignty- Sovereignty is defined as the supreme power of the State by which that State is governed (Moore, Digest of International Law), or the supreme, absolute, uncontrollable power by which any State is governed. (Cooleys Constitutional Limit)

It is also defined as the union and exercise of all human powers possessed in a State; it is the combination of all powers; it is the power to do everything in a State without accountability to make laws, to execute and apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or commerce with foreign nations, and the like. (Story, Constitution, Section 207)

BAR QUESTION, 2000Q- The Philippines has become a member of the World Trade Organization (WTO) and resultantly agreed that it shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements. This is assailed for being unconstitutional because this undertaking unduly limits, restricts and impairs Philippine sovereignty and means among others that Congress could not pass legislation that will be good for our national interest and general welfare if such legislation will not conform to the WTO Agreements. Refute this argument.

A- Law of nations are founded in natural moral law and common consent and that these are for their own good. In fact, it will be observed that there is an increasing diplomatic and economic intercourse among nations represented by their respective Heads of States and Ambassadors. As the saying goes, no man is an island and each country needs the other not only in terms of goods, products and commodities of all kinds that may be needed in pursuit of their respective business or trade but also in terms of technology and funding. The Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, freedom, cooperation and amity with all nations. A contract entered into and executed by the State is binding to it, and it may, if necessary, pass or approve a law to be able to fulfill the obligations it has undertaken. (Tanada vs. Angara, G.R. No. 118295, May 2, 1997)

Distinguish sovereignty from independenceSovereignty is the supreme power of the State by which that State is governed. It has two aspects: internal and external. In its internal aspect, sovereignty is the power inherent in the people or vested in its ruler by the Constitution to govern the State. Such sovereignty does not, in any degree depend upon its recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm its internal sovereignty. In its external aspects, sovereignty consists in the independence of one political society in respect to all other political societies. The external sovereignty of any State requires the recognition by other States in order to render it perfect and complete. This external manifestation is what is called independence. (Malcolm, Constitutional Law)Simply stated, independence is freedom from external control in the conduct of external and internal affairs. If the sovereignty of a country within its territory is more or less recognized by other States, said country is referred to as independent.

Is the sovereignty and independence of a State absolute?No. It is subject to the limitations imposed by treaty stipulations, or those arising from membership in the UN.

Rights and benefits arising from States sovereignty and independence1.It determines its own form of government2. It manages its own government3. It can enter into treaties and conduct foreign relations4. It can determine its national policies regarding national defense, natural resources, immigration, currency, etc.5. It manages its own affairs free from control, dictation or intervention of other States.

Obligations erga omnes- Obligation of a State towards the international community as a whole. (i.e., prohibition against piracy, genocide, racial discrimination, obligations related to or for the protection of human rights, environment and self-determination)

Q- In case of breach of obligation erga omnes, are the States affected by such breach or the States to which the obligation is owed, entitled to any remedy?

A-Yes. They, and even if they are not affected, may claim from the responsible State the following:1.Cessation of the internationally wrongful act;2.Performance of the obligations of reparation in the interest of the State, entity or individual which is especially affected by the breach;3.Restitution should be affected unless materially impossible.

BAR QUESTION, 2006

Q- What is the principle of auto limitation?

A- Any State may, by its consent, express or implied, submit to a restriction of its sovereign rights. It may, if it chooses to, refrain from the exercise of what otherwise is illimitable competence. (Reagan vs. Commission of Internal Revenue, G.R. No. L-26379, December 27, 1969)

Different kinds of Intervention1. Internal and External Intervention a. Internal intervention- is the interference by one State in the purely domestic affairs of another State. b.External intervention- is the interference by one State in the foreign relations of another State.2. Individual and Collective Intervention a. Individual intervention- exists when only one State interferes. b. Collective intervention- exists when two or more States interfere as a group.

3. Diplomatic and Armed Intervention a. Diplomatic intervention (also called intercession) - is interference through diplomatic channels. b. Armed (sometimes called punitive) intervention- intervention through the use of armed force. It would seem that today armed intervention is unlawful under at least Two provisions of the UN Charter:

1. Article 2, par. 3- All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered.

2. Article 2, par. 4- All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.

3. RIGHT OF EQUALITY Meaning of equality in public international lawIt does not mean absolute equality. It means legal equality or equality before the law, which means that the rights of the State, regardless of its size, population, power, degree of civilization, wealth, etc. must be respected, and if a State has obligations, it has to respect them and comply with them.

Example of legal equality:1. Each State has one vote.2. The vote of the smallest State has the same right as the vote of the most powerful State.3. No State can claim jurisdiction over another State (Par inparem non habet imperium).4. Equality can only be retained if there is dignity.5. The courts of one State do not, as a rule, question the validity or legality of the official acts of another sovereign State.

ARTICLE 2 OF THE UN CHARTER REGARDING THE PRINCIPLE OF SOVEREIGN EQUALITY OF ITS MEMBERSWeakness or limitation of the principle of sovereign equalityIt is difficult, if not absolutely impossible, to enforce the said principle because (1) a permanent member has veto power; and (2) there are permanent and temporary members in the Security Council.

4. RIGHT OF PROPERTY AND JURISDICTION

Three domain of a State1.Terrestrial domain2.Fluvial or maritime domain3.Aerial domain

EXPLANATION OF THE THREE DOMAIN OF THE STATE

1. TERRESTRIAL DOMAIN- (refers to the area of land which the State occupies)

POINTS TO REMEMBER:

1.Definition of our National territory (Section 1, Article 1, 1987 Constitution)2.Archipelagic doctrine- (Already discussed)3.Effect of the words and all other territories over which the Philippines has sovereignty or jurisdiction.4.What definitely fixes the extent of Philippine territory?

MODES OF ACQUIRING TERRITORIES

Different modes of acquiring territories1.Discovery and occupation2.Prescription3.Cession4.Conquest and subjugation5.Accretion

EXPLANATION OF EACHDISCOVERY AND OCCUPATION- this is an old mode of acquiring ownership when territories which were not yet discovered and occupied can be acquired by the discovering State under the principle of Terra Nulius which means that since it is a territory which is not yet owned by or belonging to any State (stateless territory), it can be acquired under the principle of discovery and occupationQ- X State discovered a Stateless territory and immediately, it took the following steps:

(a) it proclaimed sovereignty over the area; (b) planted several flags in different parts of the territory. Will that be sufficient to ripen into actual or real title?

Q- What right arises from discovery and effective occupation and administration?

A-1.Actual or real title of the territory acquired by effective possession and administration (Island of Palmas Arbitration Case);2.The continental shelf of the territory discovered and effectively occupied should also belong to the acquiring State.

Continental shelf of a country- It is that part of the seabed and subsoil of the submarine areas contiguous to the coast but outside the area of the maritime zone.

Why is the continental shelf important?

It is important because of the rich natural resources found therein. This is, in fact, incorporated in the Petroleum Act.

Q- Are the Kalayaan Islands (those discovered then by Tomas Cloma) subject to the sovereignty of the Philippines?

A- There are justifiable reasons supporting the view that the Kalayaan Islands are subject to Philippine sovereignty.

First, there was discovery by Tomas Cloma, a Filipino, who subsequently ceded these rights to the Philippine Government.

Second, the Philippines exercised its jurisdiction over the islands;

Third, the Philippines laid a formal claim to the islands by virtue of occupation;

Fourth, the islands are part of Palawan Province;

Fifth, the Philippines registered its claim with the UN Secretariat.PRESCRIPTIONElements of prescription as a mode of acquiring territory

1.Possession which must be continuous, public and adverse.2.Lapse of a reasonable period of time (which is a question of fact and dependent on the circumstances of each case.)

CESSIONCession- It is a mode of acquiring territory made either voluntarily (sale or donation) or involuntarily (on account of or as a result of war)

Example:1.Cession of Alaska by Russia to the US in 1867.2.Cession of the Philippines by Spain to the US. (Treaty of Paris, December 10, 1896)

CONQUEST AND SUBJUGATION

Conquest- It is the acquisition of sovereignty of a country by force of arms, exercised by an independent power, which reduces the vanquished to the submission of its empire.

Is physical conquest enough for the title to ripen to real ownership?

It is not enough. Annexation or subjugation must follow.When is there an annexation or subjugation?

It takes place if a formal cession is made in the treaty of peace.

199Q- Is conquest a legitimate mode of acquiring territory under the UN Charter?

A- No. REASON: All members shall refrain in their international relations from the threat to use of force against the territorial integrity or political independence of any State, or in other manner inconsistent with purpose of the UN. (Article 2[4], UN Charter)

ACCRETIONAccretion- It is a mode of acquiring property produced by or which is attached or united to a thing already owned by a person. In Roman Law, this is known as accession which may either be:Accessio Continua- Accession occurring as a consequence of forces external of the thing itself.Accessio Discreta- Accession occurring as a consequence of forces inherent in the thing itself.Accessio Continua may be natural or artificial.

NATURAL ACCESSIO CONTINUA

1.Alluvion- Gradual and imperceptible addition to the bank of rivers.2.Avulsion- Accretion which takes place when the current of the river, creek or torrent segregates a known portion of land from an estate on its banks and transfer it to another estate.

3.Insula Nata- An island formed in the sea. It is the property of the first occupants but it belongs to no one before it was occupied. If it is formed in the river, and it occupies in the middle of the river, it belongs to the owner of the nearer margin. If it is nearer to one side than the other, it belongs to the person who possess lands contiguous to the bank on that side.

4.Alveus Derelictus- Whenever there is a change in the course of the river, the old riverbed belongs to those who possess the lands adjoining its banks in proportion to the extent along the banks to their respective estates. The new riverbed becomes a public property. NOTE: The same are old Roman Law Principles which are still found and discussed in our Civil Code, particularly in connection with the law on property.

THE SAID PRINCIPLES BECAME THE BASIS OF THE PRINCIPLE THAT WHEN ISLANDS ARE FORMED OFF THE COAST OF A STATE BY ALLUVION, VOLCANIC ACTION, OR OTHER CAUSES, THEY BECOME PART OF THE STATE TO WHICH THE COAST BELONGS.

FLUVIAL DOMAIN- (it refers to the internal and external waters)

Q- What is included in the fluvial or maritime domain?

A- 1. Internal waters- (These are completely within the territory)1. Rivers2.Bays and gulfs3.Straits4.Canals

2072. Archipelagic waters (2nd sentence of Section 1, Article 1, 1987 Constitution)- The waters around, between, and connecting the islands of the archipelago, regardless of their dimensions, form part of the internal waters of the Philippines.

Q- What is the archipelagic Doctrine?

A- Under this doctrine, the Philippine archipelago is considered as one integrated unit instead of being divided into more than seven thousand islands. This assertion, together with the application of the straight base line method, is what is referred to as the Archipelagic Doctrine. By using this method, the outermost points of our archipelago are connected with straight baselines and all waters inside the baselines are considered as internal waters.

Q- Can vessels be allowed innocent passage within the archipelagic waters?

A- Yes, but this right may be suspended, after publication in the interest of the international security.

Q- Can the archipelagic sea lanes be designated for continuous, unobstructed transit of vessels?

A- Yes.

Q- What is the easement of innocent passage?

A- It is the right of foreign vessels to pass through territorial waters, especially those connecting two open seas, provide:

1.That the passage is innocent which means that there is no ulterior motive for the passage, and all the regulations of the State concerned must have been complied with; and2.That there is only a passage which means that there is merely a passing through, with no loading or unloading of any person or goods.

215Q-Is this rule absolute?

A-No. This may be regulated by a treaty.

Q-What is the freedom of navigation?

A-It refers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state.

Q- what is referred to as the contiguous zone?

A-It is the zone extending up to 12 nautical miles from the territorial sea. Although it is not technically a part of the territory of the state, the coastal state may exercise limited jurisdiction over the contiguous zone as a preventive measure to insure that the customs laws, immigration and sanitary laws are properly and effectively enforced.

Q-What is referred to as the exclusive economic zone?

A-It is the zone which extends up to 200 miles from the low water mark or the baselines as the case may be.Q-It was mentioned earlier that the area beyond the territorial sea is not part of the territory of the State. Does this mean that the coastal State has absolutely no rights over the said area?

A-While it is true that the said area is not owned by any State, it does not mean that the other States have absolutely rights whatsoever to the use of the same. They may enjoy the following rights:

1.As already mentioned earlier, other States may enjoy the right of innocent passage through the said area on two conditions, as aforementioned.

2.The costal State may exercise sovereign rights over economic resources of the sea, seabed , sub-soil.

3.Other state shall have freedom of navigation and over-flight, to lay submarine cables and proper lines and other lawful uses.

An example of the Philippine exclusive economic zone is the SCARBOROUGH SHOAL, which is situated about 135 kilometers from Iba, Zambales.

Q-what is referred to as the continental shelf?

A-It is the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 miles from the baselines from which the territorial sea as measured where the outer edge of the continental margin does not extend up to that distance.

Q-Can the costal state enjoy the right of exploitation of oil deposits and other resources in the continental shelf?A-Yes.

AERIAL DOMAIN-(it refers to the air space above the land and waters)

Q- What are the important principles regarding aerial jurisdiction?

A-1. AIR SPACE ABOVE THE TERRITORY OF THE STATE- They are completely subject to the sovereignty of the State just like the fluvial domain.

2. FREE AERIAL NAVIGATION- Air, like the high and open seas, is open to free navigation by all aircraft, domestic and foreign, subject to the right of the State to provide for the security of the territory. 3. TWO-ZONE THEORY There is a lower zone of territorial air space and a higher unlimited zone of free air space. 4. SOVEREIGNTY IS SUBJECT TO EASEMENT-While the sovereignty over the air space remains with the subjacent State, it is subject to the easement of innocent passage for foreign aircraft.Q-What are the present rules on international aviation?

A-1. Regular Airline Services-Schedule landings and departures

2. All other forms of international aviation

(a.) Flights in transit is recognized without prior permission (b.) Refueling stops is recognized without prior permission.

(c.) Right of cabotage-Right to transport goods and persons between points in the same State. (d.) Aircraft carry the nationality of the State of registration.Q. What are the other rules to remember?

A-1.Every State has complete and exclusive sovereignty over the airspace above its territory. This shall not include outer space.2. No other States have right of innocent passage over the air territory of another State.3. The outer space is res communes, like the high seas. It is free for exploration and use by all State but it cannot be annexed by any state (Outer Space Treaty of 1967). And they may be used only for peaceful purposes, (e.i., nuclear weapons of mass destruction may not be placed in orbit around the earth.

RIGHT OF LEGATION OR DIPLOMATIC INTERCOURSE

Q-What is the right of legation?

A-This is the right of the State to send envoys or establish diplomatic missions, or the right to receive such envoys or missions. The first is known as the active right of legation. The second is known as the passive right of legation.

A-1. Head of State-He represents the sovereignty of the state. Pointers:The conduct of foreign relations is essentially an executive function.

2.The president alone cannot, however, execute and implement our foreign policies. The DFA, represented by the secretary of foreign affairs, executes our foreign policies through the various diplomatic and consular officials.

3.The Head of the State may conduct diplomatic intercourse personally in the following instances:

a. When he attends a summit conference;

b. When he visits foreign states officially.

b.1. Case of official visit, the head of state is entitled to full diplomatic honors and privileges.

b.2. If the head of State travels incognito, he cannot claim diplomatic immunity unless he decides to reveal and prove his identity.

b.3. If the incognito visit is with the knowledge of the State concerned, he receives diplomatic privileges. However, to preserve the unofficial character of the mission, he does not get ceremonial honors.

FOUR CLASSES OF DIPLOMATIC OFFICERS

1.Ambassadors they are the political, cultural, economic, and social representatives of their countries to a foreign State. Their offices are called as embassies.

2.Ministers plenipotentiary or envoys extraordinary-they are ministers assigned to attend special to a special function (i.e., signing a treaty).

3.Ministers resident they are the political, cultural, economic, and social representatives of their countries to a foreign principal city, their offices are known as legations.

4.The charges daffaires (in charge of affairs)- They are those officially below the rank of the ministers resident. They take over when the latter is absent. In other words, they are temporarily in charge no matter what their official rank or designation may be.

Q-Who assist the Heads of Mission?

A-1. Diplomatic Staff (Engage in diplomatic activities and accorded diplomatic rank)

2. Administrative and technical Staff (those employed in the administrative and technical service of the mission) 3. Service Staff (those engaged in domestic service of the mission).Q-What is the meaning of Diplomatic Corps?

A-All diplomatic envoys accredited to same State form a body known as a Diplomatic Corps. The head of this body is usually the Papal Nucio, if there is one, or the oldest ambassador. If there is no ambassadors, it is the oldest minister plenipotentiary who is the head of the diplomatic corps

APPOINTMENT OF DIPLOMATIC OFFICIALS

Q-Who appoints ambassadors, other public ministers and consuls?

A-The President shall nominate and, with consent of the Commission on Appointment, appoint ambassadors, other public ministers and consuls. (Section 16, article VII, 1987 Constitution)

Q-Is the sending State absolutely free in the choice of diplomatic representatives of officials?

A-No. The receiving State has the right to refuse to receive as envoy of another state one whom it considers a persona non grata.

Q-What is agreation?

A-It is an informal inquiry (enquiry) to find out the acceptability of a proposed envoy and an informal conformity (agreement) of the receiving State to the appointment of the said envoy.

Q-what happens if an appointment is made without agreation?

A-this amounts to diplomatic faux pas because without agreation, there may possibly be an embarrassment.

Q-What are the papers that the envoy presents to the receiving State?

A-1. A letter of credence (letre de creance)-This states the name of the representative, his rank, the character and general object of this credence. It is also contains a request for favorable reception and full credence. It is sealed but the ambassador has copies of the same.

2.A diplomatic passport This authorizes his travel and describes both his person and his office.

3. His instructions- Special diplomatic agents receive a document of general full powers (pleins pouvoirs) with authority to negotiate on extraordinary or special business.

4.The cipher or code or secret key- For communication with his country.

Q-What are the functions and duties of a diplomatic missions?

A-The main functions of a diplomatic mission are:

a) To promote Friendly relations between the sending state and the receiving State, and the development of their economic, cultural and scientific relations;

b) To observe and report to his country the developments in the receiving State;

e) To negotiate with the government of the receiving State.

c) To protect the interests of the nationals of his country within the limits allowed by international law;

d) To represent his country in the receiving state;

WAIVER OF IMMUNITIES

Q-Can diplomatic immunities and privileges be waived?

A-(1) If purely personal, the individual concerned may make the waiver.

(2) If the right is not personal but official, the home government must make the waiver in behalf of the chief of mission. (3) In the case of subordinates, the waiver of non-personal rights is done either by the home government or by the chief of mission himself.

Q-How may the waiver be made?

A-Waiver may be made in the following ways:

1.Express waiver as already discussed;

2.Implied waiver failure to assert immunity at the time of suit;

3.Presumed waiver when the envoy himself sues, he necessarily should allow a counterclaim against himself if it should arise from the same transaction; and sometimes even if the countersuit comes from an unrelated claim (National City Bank of New York vs. Rep. of China, 348 U.S. 356)

Q-What is the right of Asylum?

A-The right of asylum is the authority of a State to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection. (Oppenheim-Lauterpact, Public International Law, Vol. I, p. 618)

Q-What are the two species of asylum?

A-(1) Territorial asylum-refuge within the territory of the sheltering state, the protection which a refugee obtain by escaping to, or remaining upon, the territory of a State other than that the state that wants him, until the protection is terminated by his extradition.(McNair, Law on Treaties, Vol. II p. 67)

(2) Exterritorial asylum asylum in what are considered the extension of a states territory. This type includes:

(a) asylum in foreign public ships;

(b) diplomatic asylum the protection afforded by a refugee by granting him an asylum in or upon its diplomatic buildings within the territory of the state that wants him.(Ibid)

Q-What is the duration of the said immunities and privileges?

A-The are enjoy by the envoy from the moment he enters the territory of the receiving state and shall cease when he leaves the country. With respect to official acts, however, immunity shall continue indefinitely.

Q-Are the said immunities and privileges available when the envoy is not in the territory of the receiving state?

A-Yes They are available even in transitu, or while travelling through a third State on the way to or from the receiving State.

307Q-When is a diplomatic mission terminated?

A-It is terminated in case of death, resignation, removal or abolition of office, recall by the sending State, dismissal by the receiving State, war between the receiving State and the sending State, or by the extinction of the State.

EXTRADITION

BAR QUESTION, 1937, 1941, 1946, 1949Q-What is extradition?

A-Extradition is the removal of an accused from the requested State (the Asylum State) with the object of placing him at the disposal of foreign authorities to enable the requesting State or government to hold him in connection with criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting State or government. (Presidential Decree No. 1069, Philippine Extradition law, Article 2 [a])

BAR QUESTION, 1922, 1924, 1930, 1931, 1937, 1939, 1941 and 1946Q-Briefly State (a) under what authority a fugitive from justice may be extradited, (b) the persons, and (c) offenses subject to extradition.

A-(a) the extradition may be implemented on the basis of an extradition treaty between the parties (the party requesting the same and the party being requested).

(b) they are those charged or convicted of offenses which under the treaty are grounds for extradition.(c) they are those offenses which are defined and listed in the extradition treaty.

Q- can the State being requested be compelled to surrender a criminal to a requesting State?

A-Yes, if there is an extradition treaty to that effect. Of course, a State may voluntarily extradite a criminal even without an extradition treaty.

BAR QUESTION, 1993Q-What is the difference, if any, between extradition and deportation?

Extradition 1.The surrender by force of a wanted person by the requested State to the requesting State2. May only be made pursuant to a treaty between the requesting State and the requested State 3.It is for the benefit of the requesting State.Deportation1.The expulsion of an unwanted or undesirable alien.2. It is an exercise of sovereignty and decision made by a State.3. It is an order of a State acting on its own and according to its laws, interest and processes BAR QUESTION, 1969Q- A Japanese woman came to the Philippines and was admitted as transient. It was found a few days later that her passport was forged. Deportation proceedings were then started against her. Ten days later, she married a Filipino. Could she still be subject for deportation?

A-The Government of the Republic of the Philippines has absolutely the right to allow, prohibit or deport any alien is therefore subject to the approval and consent of our government and if it decides to deport an alien, that is purely a matter of right on the part of our government.

CONSULAR OFFICIALSQ- What is a consul?

A-A consul is a commercial agent appointed by his Government to reside in a foreign city, and permitted by the foreign State to do so in order that he may watch over the commercial rights and privileges of his own country therein and thus protect the rights of his countrys nationals.

Q-What are the different kinds of consul?

A-As to character a) Consules missi (consuls de carrier)- Literally this means consuls of career. They are professional consuls, hence, they are not allowed to engage in any other profession or business;

b) Consules electi They are also known as honorary or commercial consuls. They are selected by the appointing Government either from its own citizens engaged in business in the country in which they will be allowed to exercise consular functions, or from among the nationals of t he foreign state involved.

As to rankA) Consul-general- He heads several consular districts, or one exceptional large consular district;

B) Consul- He takes charge of a small district or town or port;C) Vice-consul-He assist the consuls;D) Consular-agent-He is usually entrusted with the performance of certain functions of the consul.

Q-What are the two important documents necessary before the assumption of consular functions?

A-1) letter patent (lettre de provision) This is the letter of appointment or commission which is transmitted by the sending state to the Secretary of Foreign Affairs of the country in which the consul is to serve; and

2) Exequator-This is the authorization given by the sovereign of the receiving State to the consul, allowing him to exercise his functions within the territory. (See Lawrence, Principles of International Law, p. 297). The exequator may be granted conditionally; the grant may even be refused for any or no reason; once granted, the exequator may be unilaterally withdrawn.

Q-What are the functions of consular officers?

A-Generally, the functions pertain to commerce and navigation and other administrative functions like issuing visas (permits to visit his country), as contradistinguished from passports (permits to leave the country, and which are usually issued by the Department of Foreign Affairs). Under Article 10 of the Family Code of the Philippines, marriages between Filipino citizens abroad may be solemnized by a consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official.

Q-What are the immunities and privileges of consular officials?

A-Unless given some diplomatic functions, consuls are not generally entitled to diplomatic immunity (U.S vs. Wong kim Ark, 167 U.S. 649). They are, however, granted some privileges and immunities which may be essential for the proper performance of their of their consular duties, such as those granted under the 1963 Vienna Convention on Consular Relations, to wit:

1. They are not allowed freedom of communication in cipher or otherwise;2. Inviolab