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PUBLIC INTERNATIONAL LAW NOTES

By: Evelyn De Matias


COURSE OUTLINE

I.

PRELIMINARY CONSIDERATIONS

A. Brief history of Public International Law


B. Definition of International Law
- body of rules & principles which are recognized as legally binding and governs the
relations of states and other entities with one another (as between international
organizations, between international organizations and states, between international
organizations and states and the people).
C. Functions of International Law
1. defines the existence of states
2. provides framework of diplomatic relations
3. governs international agreements
4. sets forth rules for international commerce
5. governs individual human rights
6. regulates protection of the global environment (air, land, sea and global resources)
7. VITAL FUNCTION: eliminates elements of unlawful force in the solution of human
conflicts and provides basis for the orderly management of international relations;
social progress
D. Foundations of International Law
1. Principle of comity
2. Principle of reciprocity/mutuality
3. Principle of independence
4. Principle of equality of states
E. Theories About International Law
1. Natural Law School
- there are certain normative principles that are true or self evident and which
exists independently of their codification or enforcement by human beings.
- naturalists maintain that the law of nations is binding upon states because it is a
branch of great law of nature, the sum of those principles which ought to control
human conduct, being founded on the very nature of man as a rational and social
being.
2. Positivist School
- the basis of obligation of international law is founded in the CONSENT OF STATES.
- this school of thoughts provides that consent of states is given:
a) Tacitly in case of customary international law
b) Expressly in case of conventional law
c) Presumed in case of General Law of Nations
3. Eclectic/Groatian School
- occupy middle position between the natural and positivist school
- recognizes that international law is in part a product of natural law and at the same
time the positive consent of states to be bound by its rules.
F. Basis of International Law/Schools or Theories in the Study of International Law
The schools of study of international law are the basis of the obligation in international
law.
G. Theories as to the Basis of International Law
1. Direct Consent
- international law is based upon the direct consent of States upon their individual
acceptance of its principles and rules.
2. Implied Consent
- a fiction to account for the acceptance of the great body of general principles and
specific rules that had come to form the body of customary law.
3. Mutuality of Interest
- international law is a subjective law; its binding force depends upon mutuality of
interest which could only be maintained by altering from time to time such rules as
it might be no longer to the interest of the parties to observe.

4. Necessity
- the fact that nations have common interest constitutes the actual community of
states and at the same time imperatively demands a rule of law so that
international law may be said to be based upon the very necessity for its existence.
H. Two Main Branches of International Law
1. Public International Law (Law of Nations)
2. Private International Law (Conflicts of Law)
I. Branches of International Law
1. Human rights law
2. Humanitarian law
3. Refugee law
4. Criminal law
5. Economic law
6. Environmental law
J. General Classifications of Public International Law
1. Consular law
2. Diplomatic law
3. International Aviation law
4. International criminal law
5. International environmental law
6. International human right law
7. International humanitarian law
8. International space law
9. International trade law
10.Law of state responsibility
11.Rules according to higher law
12.UN Conventions on the law of the Sea
13.Use of force continuum
K. Public International Law vs Private International Law
Public International Law (Law of Nations)
- regulates the relationship between states and international entities
- concerned with questions of rights between nations.

Private International Law (Conflicts of Law)


regulates comity of states in giving effect in one to the municipal laws of another
relating to private persons.
PRINCIPLE: One country gives respect and give effect to the laws of another so far as
can be done consistently with its own interest.

L. Is International Law a True Law?


- BASED ON POPULAR VIEWS IT IS NOT A TRUE LAW BECAUSE:
law of nation lacks the equality of positive authority or command.
no legal duty/obligation of obedience on the part of those whom it is addressed
with no courts to interpret and enforce international law.
no penalty prescribed for disobedience with lack of physical power to enforce
obedience.
-

INTERNATIONAL LAW IS RECOGNIZED AS LAW OF PRACTICE


sanctions for failure to comply though indirect is similar to municipal law.
includes force of public opinion, self help, intervention by third party states,
sanctions of international organizations such as the UN and as a last resort WAR.

M. Classification of International Law


1. Customary
2. Conventional
3. General International Law

N. Public International Law vs Municipal Law


PUBLIC INTERNATIONAL LAW
MUNICIPAL LAW
deals with states relations
- deals with internal affairs of a state
sources are customs and treaties
- sources are customs and precedents
grown within the states jurisdiction

and legislation enacted by its law


making body.
law of sovereign over individuals
subject to state authority.
laws are codified

law is not a law above but between sovereign states


laws not codified except on particular subjects
penalty/sanction
is
addressed
by - penalty may be in the form of
pressure put upon a state to behave in
imprisonment (in violation of the penal
good faith, diplomacy, retaliations or
code) or sanctions of damages and
severance of economic ties, war as an
administrative sanctions.
act of self defense (as recognized by the
UN). Only strong countries may impose
these sanctions to weak countries in
reality.
In International Tribunal the international law will prevail over Municipal law.
In a municipal tribunal, one must distinguish if conflicts involve international law and
foreign international law in which case international law prevails;
Municipal law prevails if conflicts involve conflicts between municipal law and
international law.
O. Relation Between International Law & Municipal Law
1. Monism
- views international law and national law as part of single legal system with domestic
law derived from the broader framework provided by international law.
2. Dualism
- considers international law and internal law of states as wholly separate legal
systems, the former creating obligations only among sovereign nations and the latter
allowing each state to determine the means and form by which it carries out its
obligations.
P. Relation between Public International law and Philippine Municipal Law
Q. Conflicts between Public International Law and Municipal Law
- Municipal law, when in conflict with PIL is given effect in municipal courts, the reason
being that such courts are organs of municipal law and are accordingly bound by it in
all circumstances.
- the fact that international law has been made part of the law of the land does not
mean to imply it is primary over national or municipal law.
- in Doctrine of Incorporation, PIL is given standing equal but not superior to national
legislative enactments.
PRINCIPLES AND DOCTRINES
DOCTRINE OF TRANSFORMATION
- requires legislative action to make the treaty enforceable in the municipal sphere.
- Municipality law expressly adopts an international law thru an act of legislation.
- The doctrine observed in treaties
DOCTRINE OF INCORPORATION
- Considers rules of international law as forming part of the law of the land and no
further legislative action is needed to make such rules applicable in the domestic
sphere.
- the doctrine observed in customary international law.
ADOPTION DOCTRINE
- Municipality law impliedly adopts an international law.
HARMONIZATION DOCTRINE
- International law is applied only when appropriate.
RESTRICTED AUTOMATIC DOCTRINE
- Based on Article 2, section 2 of Constitutional provision in the Philippines,
Philippines adopts the generally accepted principles of international law as part of
the law of the land. It stresses the automatic adoption of international law but

involves restriction that such automatic adoption of international law is only as to


generally accepted principles of international law.
R. Conflict between a Treaty and a Constitution
- In states where Constitution is the highest law of the land, both statutes and treaties
may be invalidated if they are in conflict with the Constitution.
- In the Philippines, the Supreme Court may declare a treaty unconstitutional if it is in
conflict with the Constitution.
S. Structure of Public International law
1. Law of Treaties and other international agreements
2. Law on Armed Conflicts
3. Rubrics of international delinquencies or torts
4. International responsibilities of States
T.
U.
V.
1.
2.

The Role of Public International Law


World Politics
Related Cases
The Interhandel Case (Decision of the International Court of Justice, March 21, 1949)
Kuroda v Jalandoni, 83 Phil 171
Facts:
Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and
Commanding General of the Japanese Imperial Forces in the Philippines was charged
before the Philippine Military Commission for war crimes. As he was the commanding
general during such period of war, he was tried for failure to discharge his duties and
permitting the brutal atrocities and other high crimes committed by his men against
noncombatant civilians and prisoners of the Japanese forces, in violation of of the laws
and customs of war.
Kuroda, in his petition, argues that the Military Commission is not a valid court because
the law that created it, Executive Order No. 68, is unconstitutional. He further contends
that using as basis the Hague Conventions Rules and Regulations covering Land Warfare
for the war crime committed cannot stand ground as the Philippines was not a signatory
of such rules in such convention. Furthermore, he alleges that the United States is not a
party of interest in the case and that the two US prosecutors cannot practice law in the
Philippines.
Issues:
a) Whether or not Executive Order No. 68 is constitutional
b) Whether or not the US is a party of interest to this case
c) Whether or not Atty. Melville S. Hussey and Robert Port is allowed to practice law
profession in the Philippines.
Ruling:
The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes
Office and prescribing rules on the trial of accused war criminals, is constitutional as it is
aligned with Sec 3,Article 2 of the Constitution which states that The Philippines
renounces war as an instrument of national policy and adopts the generally accepted
principles of international law as part of the law of the nation. The generally accepted
principles of international law includes those formed during the Hague Convention, the
Geneva Convention and other international jurisprudence established by United Nations.
These include the principle that all persons, military or civilian, who have been guilty of
planning, preparing or waging a war of aggression and of the commission of crimes and
offenses in violation of laws and customs of war, are to be held accountable. In the
doctrine of incorporation, the Philippines abides by these principles and therefore has a
right to try persons that commit such crimes and most especially when it is committed
againsts its citizens. It abides with it even if it was not a signatory to these conventions
by the mere incorporation of such principles in the constitution.
The United States is a party of interest because the country and its people have been
equally, if not more greatly, aggrieved by the crimes with which the petitioner is charged
for. By virtue of Executive Order No. 68, the Military Commission is a special military
tribunal and that the rules as to parties and representation are not governed by the rules
of court but by the very provisions of this special law.
On the 3rd issue, the court ruled that the appointment of the two American attorneys is
not violative of our national sovereignty. It is only fair and proper that the U.S. which has

submitted the vindication of crimes against her government and her people to a tribunal
of our nation should be allowed representation in the trial of those very crimes. The lest
that we could do in the spirit of comity is to allow this representation in said trial.
3. Ichong v Hernandez, May 31, 1957
Facts:
RA 1180 An Act to Regulate The Retail Business prohibits foreigners and foreign owned
corporations to engage in the retail business/trade in the Philippines. Petitioner assails
the Act contending it violates the Treaty of Amity between the Philippines and China and
is unconstitutional.
Issue:
Whether or not RA 1180 a valid exercise of police power of the State.
Held:
The court held that RA 1180 is a valid exercise of the police power of the State since such
sovereign power of the State could not be bargained through any Treaty or contract
especially when the intent of such legislation is to remedy a real and actual danger to the
national economy due to the increasing dominance and control of aliens in the retail
trade in the country.
4. Phil. Association of Free Labor Unions (PAFLU) et al. v Secretary of Labor et al., February
27, 1969
5. Paquete Habana case, 125 US 677 (1900)
Paquete Habana.; The Lola, 175 U.S. 677 (1900), was a landmark United States Supreme
Court case that reversed an earlier court decision allowing the capture of fishing vessels
under Prize (law). Its importance rests on the fact that it integrated Customary
international law with American law, perhaps the quintessential position of those who
hold a monist perspective of international law.
Background of the Case:
In April 1898 two fishing vessels, the Paquete Habana, and the Lola separately left Cuban
ports in Havana in order to fish. The two vessels were eventually captured by US Naval
vessels as part of Admiral William T. Sampson's blockade of Cuba, who was ordered to
execute the blockade 'in pursuance of the laws of the United States, and the law of
nations applicable to such cases.' The vessels were placed within Cuba's territorial
waters at the onset of the Spanish-American War and then taken to Key West, where both
vessels were eventually auctioned by the district court.
Admiral Sampson justified the seizures by stating that most fishing vessels, flying under
the Spanish banner were manned by excellent seamen, "liable for further service" as
naval reserves, an asset that could eventually be used against US interests in the
Spanish-American War.
The owners of the vessels however made an appeal to the circuit courts, citing a long
held tradition by nations of exempting fishing vessels from prize capture in times of war.
This "tradition", a primary example of customary international law, dates back from an
order by Henry IV in 1403, and has more or less been observed by a large majority of
States ever since.
At the time of capture both vessels had no evidence of aiding the enemy, and were
unaware of the US naval blockade. No arms were found on board, and no attempts were
made to either run the blockade or resist capture.
The Court's Decision:
The United Supreme Court, which cited lengthy legal precedents established to support
the existence of a customary international law that exempted fishing vessels from prize
capture eventually found the capture of both vessels as "unlawful and without probable
cause", reversed the District Court's decision, and ordered the proceeds of the auction as
well as any profits made from her cargo to be restored to the claimant, "with damages
and costs".
6. Mejoff v Director of Prisons 90 PHIL 70 (1951)
Facts:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied
in a decision of this Court on July 30, 1949. "The petitioner Boris Mejoff is an alien of
Russian descent who was brought to this country from Shanghai as a secret operative by
the Japanese forces during the latter's regime in these Islands. Upon liberation, he was
arrested as a Japanese spy by U. S. Army Counter Intelligence Corps. Thereafter, the
People's Court ordered his release. But the Deportation Board taking his case up found
that having no travel documents, Mejoff was an illegal alien in this country, and
consequently referred the matter to the immigration authorities. After the corresponding
investigation, the Immigration Board of Commissioners declared on April 5, 1948 that
Mejoff had entered the Philippines illegally in 1944, without inspection and admission by
the immigration officials at a designated port of entry and, therefore, it ordered that he
be deported on the first available transportation to Russia. The petitioner was then under
custody, he having been arrested on March 18, 1948. In October 1948, after repeated
failures to ship this deportee abroad, the authorities moved him to Bilibid Prison at
Muntinglupa where he has been confined up to the present time, inasmuch as the
Commissioner of Immigration believes it is for the best interests of the country to keep
him under detention while arrangements for his departure are being made. Two years
having elapsed since the aforesaid decision was promulgated, the Government has not
found ways and means of removing the petitioner out of the country, and none are in
sight, although, it should be said in fairness to the deportation authorities that it was
through no fault of theirs that no ship or country would take the petitioner.
Issue:
Whether or not Boris Mejoff should be released from prison pending his deportation.
Ruling:
The protection against deprivation of liberty without due process of law, and except for
crimes committed against the laws of the land, is not limited to Philippine citizens but
extends to all residents, except enemy aliens, regardless of nationality. Moreover, Sec. 3,
Art. II of the Constitution of the Philippines "adopts the generally accepted principles of
international law as part of the law of the Nation." And in a resolution entitled, "Universal
Declaration Of Human Rights," and approved by the General Assembly of the United
Nations, of which the Philippines is a member, at its plenary meeting on December 10,
1948, the right to life and liberty and all other fundamental rights as applied to all human
beings were proclaimed. It was there resolved that "all human beings are born free and
equal in degree and rights" (Art. 1); that "everyone is entitled to all the rights and
freedom set forth in this Declaration, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, nationality or social origin, property,
birth, or other status" (Art. 2); that "every one has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted him by the
Constitution or by law" (Art. 8); that "no one shall be subjected to arbitrary arrest,
detention or exile" (Art. 9 ); etc. Premises considered, the writ will issue commanding the
respondents to release the petitioner from custody upon these terms: that the petitioner
shall be placed under the surveillance of the immigration authorities or their agents in
such form and manner as may be deemed adequate to insure that he keep peace and be
available when the Government is ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall be submitted to this Court or to the
Court of First Instance of Manila for decision in case of abuse. No costs will be charged.
Source: http://rabbit-icecold.blogspot.com/
7. Reyes v Bagatsing GR no. 65366, October 25, 1983
Facts:
Retired Justice Jose B.L. Reyes, in behalf of the Anti-Bases Coalition, sought for a permit
from the City of Manila to hold a peaceful march and rally on October 26, 1983 starting
from Luneta to the gates of the United States embassy. The objective of the rally was to
peacefully protest the removal of all foreign military bases and to present a petition
containing such to a representative of the Embassy so it may be delivered to the United
States Ambassador. This petition was to initially compel the Mayor of the City of Manila
to make a decision on the application for a permit but it was discovered that a denial has
already been sent through mail. It also included a provision that if it be held somewhere
else, permit may be issued. The respondent mayor alleges that holding the rally in front
of the US Embassy is a violation of the resolutions during the Vienna Convention on
Diplomatic Relations adopted in 1961 and of which the Philippines is a signatory. In the
doctrine of incorporation, the Philippines has to comply with such generally accepted
principles of international law as part of the law of the land. The petitioner, on the other

hand, contends that the denial of the permit is a violation of the constitutional right of the
freedom of speech and expression.
Issue:
Whether or not the Anti-Bases Coalition should be allowed to hold a peaceful protest rally
in front of the US Embassy
Ruling:
The Supreme Court ruled to allow the rally in front of the US Embassy to protect the
exercise of the rights to free speech and peaceful assembly and on the ground that there
was no showing of the existence of a clear and present danger of a substantive evil that
could justify the denial of the permit. These rights are not only assured by our
constitution but also provided for in the Universal Declaration of Human Rights. Between
the two generally accepted principles of diplomatic relations and human rights, the
former takes higher ground. The right of the freedom of expression and peaceful
assembly is highly ranked in the scheme of constitutional values.
Source: http://pil-rizalyn.blogspot.com/2008/06/jbl-reyes-vs-bagatsing-gr-no-65366.html
8. Head Money cases, Edye v Robertson 112 US 580 (1884)
Facts:
In 1882 the Congress passed an act providing that a duty of fifty cents should be
collected for each and every passenger who was not a citizen of the United States,
coming from a foreign port to any port within the United States. Individuals and
steamship companies brought suit against the collector of customs at New York, Mr. WH
Robertson, for the recovery of the sums of money collected. The act was challenge on the
grounds that it violated numerous treaties of the US government with friendly nations.
Issue:
Whether or not the act is void because of the conflict with the treaty.
Ruling:
A treaty is a compact between independent nations, which depends for its enforcement
upon the interest and honor of the governments that are parties to a treaty. Treaties that
regulate the mutual rights of citizens and subjects of the contracting nations are in the
same category as acts of Congress. When these rights are of such a nature as to be
enforced by a court of justice, the court resorts to the treaty as it would to a statute.
However, a constitution gives a treaty no superiority over an act on congress. In short, so
far as a treaty made by the United States with any foreign nation can become the subject
of judicial cognizance in the courts of this country, it is subject to such acts as Congress
may pass for its enforcement, modification, or repeal.
9. Whitney v Robertson 124 US 190 (1888)
Facts:
Merchants were importing sugar from San Domingo, and when they arrived at the
custom house in NY, they claimed b/c of the treaty btwn US & San Domingo, that the
goods should be admitted duty free. The collector at the port refused, and the merchants
were made to pay $21,936 in duties. Merchants then brought this claim to get back the
duties paid. Merchants (P) argued that the treaty btwn US and San Domingo promised to
provide most favored nation treatment to imports from San Domingo. The most favored
nation treatment was from a treaty btwn US and the Hawaiian Islands, where certain
goods, including sugar, were exempt from dutycollection. Collector of the port (D) argued
that he treated the goods as dutiable articles under the acts of Congress.
Issue:
Whether a treaty supersedes conflicting acts of Congress. -Not necessarily, both are
binding.
Holding:
Affirmed for D.
Reasoning:
Both self-executing treaties and acts of Congress are considered supreme laws of the
land, and both should have effect. Justice Fields says that when they conflict with each
other, "the one last in date will control the other." Since the acts of Congress were dated
last, they control. He also says that if the country with which the treaty is made is
dissatisfied with the action of the US legislative dept, then they may present a complaint

to the executive had of the govt. RULE: In the case of a conflict btwn a federal statute
and a treaty, the one last in date will control.
Notes Hierarchy - last in time rule Here the act of congress has trumped an earlier
treaty Dualism again Domestically, we care about checks and balances, that treaty no
longer has any effect But in international realm, this is a problem, b/c we are not
honoring the treaty with Dominican Republic Breaching treaty - can be taken to ICJ, etc.
Example of dualist - domestic vs. international obligations
Source
1888.html

II.

http://dcomfortroom.blogspot.com/2009/12/whitney-v-robertson-124-us-190-

SOURCES OF PUBLIC INTERNATIONAL LAW

A. Sources of Public International Law as applied by the International Court of


Justice
Direct Sources
i.
International Conventions and Treaties
- most abundant sources of PIL
- between parties of treaties, the stipulations constitute the law between them.
- ex: Vienna Convention on the Law of Treaty
ii.

International Customs
- custom exists when there is a clear and continuous habits of doing certain things
develop under the conviction that it is obligatory and right.
- International Court of Justice held that customary rule mist be based on constant
and uniform usage.

iii.

General Principles of law


- recognized by civilized nations
- ex. res judicata, prescriptions, due process, law of nature, estoppel, ex aequo et
bono (fair and equity).

iv.
v.

Secondary Sources (Subsidiary means for determining rules of law)


Teaching of most highly qualified publicists of the various nations
Judicial Decisions

B. Equity in International Law


Principle of Ex Aequo et Bono
- means what is fair and good
- falls under the general principle of law
- equitable principle of law
C. Classification of sources of Public International Law
i.
Direct sources
ii.
Indirect, secondary, subsidiary sources
D. Related Cases
i.
Agustin vs Edu, February 2, 1979 (88 SCRA 195)

III.

THE INDIVIDUAL AND INTERNATIONAL LAW

A. Individual under International Law


i.
The Law on Nationality
NATIONALITY
- the bond that unites a person to a given state which constitutes his membership in the
particular state, giving him a claim to the protection of that state and subjects him to
the obligations created by the laws of that state.
- in International Law, the term nationality is used in place of citizenship which is
understood in municipal law as being possessed of the full rights and privileges of
membership in a political community.
ii.

Rules on Multiple Nationalities (1930 Hague Convention on Conflict of


Nationality Laws)
1930 HAGUE CONVENTION ON CONFLICT OF NATIONALITY LAWS
- Provides the following rules:

A. RULES IN DETERMINING A PERSON'S NATIONALITY


ARTICLE I. It is for each state to determine under it's own law who are its nationals.
This law shall be recognized by other States in so far as it is consistent with
international conventions, international customs, and the principles of law generally
recognized with regards to nationality.
ARTICLE II. Any questions as to whether a person possesses the nationality of a
particular State shall be determined in accordance with the law of that State.
B. RULES ON MULTIPLE NATIONALITIES
ARTICLE III. A person having 2 or more nationalities may be regarded as it's
national by each of the States whose nationality he possesses.
ARTICLE IV. State may not afford diplomatic protection to one of its nationals
against a State whose nationality such person also possesses.
ARTICLE V. Within a Third State, a person having multiple nationalities shall be
treated as if he had only one. The Third State shall, of the nationalities which any
such person possesses, recognize exclusively in its territory either:
1. The nationality of the country in which he is habitually and principally resident,
or
2. The nationality of the country with which in the circumstances he appears to be
in fact most closely connected - DOCTRINE OF EFFECTIVE NATIONALITY.
ARTICLE VI. A person possessing two nationalities acquired without any voluntary
act on his part may renounce on of them with the authorization of the State whose
nationality he desires to surrender. This authorization may not be refused in the
case of a person who has his habitual and principal residence abroad, if the
conditions laid down in the law of the State whose nationality he desires to
surrender are satisfied.
iii.
-

Doctrine of Effective Nationality


Within a Third State, a person having multiple nationalities shall be treated as if he
had only one. The Third State State shall, of the nationalities which any such person
possesses, recognize exclusively in it's territory either:
1. The nationality of the country in which he is habitually and principally resident, or
2. The nationality of the country with which in the circumstances he appears to be in
fact most closely connected

iv.
-

v.

Doctrine of Indelible Allegiance


a State may prohibit its nationals from changing their nationality under certain
circumstances.

ex. C.A. No. 63 (Act providing for the ways in which Philippine Citizenship may be lost
or re-acquired) which provides that Filipino citizen may lose his citizenship by
subscribing to an oath of allegiance to support the constitution or laws of a foreign
country upon attaining 2 years of age or more; Provided however that a Filipino may
not divest himself of Philippine citizenship in any manner while the Republic of the
Philippines is at war with any country.

THE EXEMPTION TO THE GENERAL RULE PROVIDED BY ARTICLE 15 OF THE


UNIVERSAL DECLARATION OF HUMAN RIGHTS " that no one shall be arbitrarily
deprived of his nationality nor denied the right to change his nationality."

Doctrine of Nemo Potest Exuere Patriam


doctrine providing that the bond of nationality could never be broken.
no one might transfer his allegiance to another state without the consent of the state
which had first claim upon him.
- the basis of the Doctrine of Indelible Allegiance
-

B. Individual as subject of International Law


I.
SUBJECTS AND OBJECTS OF INTERNATIONAL LAW DEFINED

Subject of Public International Law


- an entity directly possessed with personality with the rights and obligations in the
international legal order
- ex: sovereign state as Philippines ( with capacity to sue in the International Court of
Justice or may be sued in international tribunal)
2 KINDS OF SUBJECTS IN PUBLIC INTERNATIONAL LAW:
1. Complete International Personality
- a state which may be divided into categories:
A. Single or Simple State (ex. Philippines)
B. Composite State
B.1. Federal States (ex. United States of America, United States of
Switzerland)

exists when the central or federal government exercises authority over


both the various states in the Union and the citizens thereof.
regarded as an INTERNATIONAL PERSON
have its own governmental machineries and absorbs all individual states
associated together.

B.2. Confederation
has some power over it's individual state but not over the individual
citizens of the member states.
not regarded as an INTERNATIONAL PERSON, each of the member state
being represented by its own delegate.
loose union or alliance formed through a treaty among various states,
each of which is fully sovereign and independent.
B.3. Real Union (ex. United Arab Republic)
formed by two sovereign states linked together by a common government
in external affairs and by a common chief of state. The union then
possesses a single international personality that merges the separate
personalities of the states as a unified whole.
B.4. Personal Union
merger of two separate states in the sense that both have the same
individual as the accidental or temporary head of state. The union
however has no separate international personality since each of the
member states has its own government and its own separate
international personality.
currently, there is no personal union in existence
B.5. Incorporate Union (ex. United kingdom of Great Britain and Ireland)
one where the internal and external organs of government of two states
are merged into one resulting in a single international personality.
2. Incomplete, Imperfect, Qualified or Quasi-international Personalities
a) Dependent States
- subjected to control & sovereignty of some superior state/s in the conduct of
their external & foreign affairs.
b) Belligerent & Insurgent Communities
- Rebels and insurgents are organized group with no rights under the
international law but if civil strife threatens to interfere with autonomy of
foreign intercourse and tends to jeopardize sovereignty of the state over the
insurgent community certain insurgent rights may be tacitly admitted.
- if the act is piracy then it is private in character and ends are not political and
no insurgent rights arise.
- parent state still liable for acts committed by the insurgent community within
the jurisdiction of said parent state even if foreign state admits existence of
insurgent rights.
- if hostile acts are committed by insurgents against a foreign state the latter
may choose to punish them or turn them over to the parent state.
- foreign states ought to refrain from interfering in hostilities between parent
state and insurgent community.

Belligerent community rights arise when:


End must be political in character
Hostilities must be a character of war and carried out in accordance with law of
war
iii.
Proportion of revolts must be to render the issue uncertain
iv.
The conduct of hostilities and general government of the revolting community
must be in the hands of a responsible organization.
i.
ii.

Recognition of the international personality status of a belligerent community in


the international order is ONLY FOR LIMITED PERIOD OF TIME.
c) Colonies, Dependencies and Possession
- they cannot be states but the international legal order grants them
international personality in a restricted degree (sign international conventions
and become member of United Nations.
- COLONY is a dependent community with a number of citizens but remain
subject to mother state.
- DEPENDENCY is a territory distinct from country in which the supreme
sovereign power resides but belonging rightfully to it subject to laws and
regulations which the sovereign may think proper to prescribe.
- POSSESSION is held by a title other than that of mere physical conquest.
d) Mandate and Trust Territories
MANDATES - former territorial possessions of states defeated in the First World
War and placed under control of League of Nations. They are afforded the chance
to develop economically and socially by more advanced nations.
TRUST TERRITORIES - under UN supervision, the Administering Authority
exercising sovereignty power over them.
e) Public and Political Corporations or Companies
- private corporations fall under private international law but are also involved in
public international law when in time of war their property and other rights are
impaired or when maritime law has been infringed.
f) International administrative bodies
- vested with international personality as they are beyond the control and
authority of any particular state including the region in which seat of the
organization may be situated.
Object of Public International Law
- indirectly vested with rights and obligations in the international sphere
- ex: filipino private citizen ( who while entitled to certain rights which other
states ought to respect has no recourse except to course his grievances through
the Republic and its diplomatic officers)
II.

STATUS OF INDIVIDUAL UNDER INTERNATIONAL LAW


- While Private individuals are regarded as objects of PIL, they are recently accorded a
NEW STATUS IN INTERNATIONAL LAW and regarded as subjects in the international
order with their importance laid down by the ff:
o Charter of the UN and Universal Declaration of Human Rights
o Nuremberg and Tokyo War Tribunals for war crimes
o norms of general international law prohibiting piracy (committed only by
private individuals and not by acts of state)
o espionage rules
o court practice of permitting foreigners to prosecute claims
o rules safeguarding rights of alines and minorities
o punishment on illegal use of flag.
o procedures in admiralty and maritime matters
o special status accorded to refugees
NOTE:

INDIVIDUALS therefore are TRUE SUBJECTS IF INTERNATIONAL LAW and


STATES are only AGENTS through which they act in default of more convenient
means of giving effects to their common interests.

ACT OF AN INDIVIDUAL BECOMES AN ACT OF STATE


- when his act may be imputed on the State.
- determined on the basis of the national legal order, the law of the State whose act is in
question.
- an act or performance not permitted or prescribed by law of the State cannot be
imputable on the State.
- becomes imputable on a State when performed by an individual who is an organ of the
State and competent under the law to represent the State in relation to other States
such as the Head of State.
III.
IV.
V.
VI.
VII.

INTERNATIONAL ORGANIZATIONS AS SUBJECTS OF INTERNATIONAL LAW


NON-GOVERNMENTAL ORGANIZATIONS
MULTINATIONAL CORPORATIONS
COMPLETE INTERNATIONAL PERSONALITIES
INCOMPLETE,
IMPERFECT,
QUALIFIED
OR
QUASI-INTERNATIONAL
PERSONALITIES

IV.

STATES IN THE INTERNATIONAL SYSTEM

A. State defined
- group of people capable of procreation and sekf defense living in a definite territory
(must be a land not sea) possessed of government to which inhabitants render obedience.
B. Elements or Attributes of a State
I.
According to majority school of thought
1. Group of people (man & woman capable of procreation).
2. Definite territory (fixed to settle disputes on jurisdiction; a definite space where
acts of state esp. Coercive acts can be carried out legally as allowed by the general
international law).
3. Government (machinery or instrument by which power in a state expresses its will
and exercises its functions).
4. Independence (freedom from external control in the conduct of one's external and
internal affairs).
II.
According to Minority view
The majority school of thoughts and:
5. Possession of sufficient degree of civilization
6. Recognition by the Family of Nations
C. Fundamental Rights of States
i.
The rights of existence, integrity and self-preservation
ii.
The rights of sovereignty and independence
iii.
The right of equality
iv.
The right of property and jurisdiction
v.
The right of legation or of diplomatic intercourse
The rights of existence, integrity and self-preservation
Basis
- existence presupposes its right to survive which is predicated not only to physical
maintenance of its territorial integrity but also physical expansion that follows valid
acquisition of territories. When its existence is in jeopardy it has a right of self
preservation.
1. THE RIGHT TO ACQUIRE TERRITORIES
A. Modes of Acquiring Territories
1. Discovery and Occupation
- only stateless territory could be acquired by discovery and occupation.
- Discovery should be coupled with occupation. An effective occupation is one that
would effectively take real possession of the territory and establish some kind of
administration.
2. Prescription (Acquisitive Prescription)
- must be continuous, public and adverse whether good or bad faith of some other
states territory and there must be a lapse of reasonable period of time.
3. Cession
- territory is acquired voluntarily in case of donation or sale or involuntary as in the
result of war.

perfection of cession commences upon meeting of minds.


mere lease effectuated by the owner in favor of another state cannot transfer
ownership. A state making the cession is a mere usurper or intruder with no
transferable right, the cession is purposeless and inefficacious.

4. Conquest and Subjugation


- CONQUEST is the acquisition of the sovereignty of a country by force of arms
exercised by an independent power.
- Mere physical conquest gives an INCHOATE TITLE; for this title to ripen into
ownership subjugation must follow.
- SUBJUGATION takes place if the formal cession is made in the TREATY OF PEACE.
- TREATY OF PEACE is essentially entered into through the use of force and
intimidation.
- Under the general international law, while duress usually vitiates the consent given
to a treaty, an EXCEPTION is the TREATY OF PEACE for such treaty is precisely
entered into as a result of fear.
- Present UN Charter however the use of threat and force is considered illegal.
5. Accretion
- is the process of attaching or incorporating something to what an owner of
territory already has.
- may be natural (caused by natural force such as current of river) or artificial (as in
act of state in reclaiming part of sea in reclamation projects).
B. Modes of Losing Territories
1. Abandonment (must be physical abandonment of the property with the intent never to
return to the same).
2. Prescription (Extinctive Prescription)
3. Cession
4. Subjugation
5. forces of nature (i.e. avulsion; volcanic eruption)
6. Successful revolutions and secessions (mere declaration of independence does not
commence a new state success has to follow)
C. Space Law
i. Air space
ii. Outer space
LEGAL STATUS OF SPACE:
- space beyond the atmosphere is incapable by its very nature of appropriation on
behalf of any particular sovereignty.
- theoretically similar to the rule of freedom of the seas where seas cant be
possessed by any particular government and necessarily open to free spatial
navigation by all those who may venture into its unknown confines.
JURISDICTION OVER SPACE ACTIVITIES
- Control and supervision vested in international bodies (i.e. UN)
- It may be exercised by the country conducting the activity from which the departure
was physically made and of citizens conducting the enterprise.
2. THE RIGHT TO SELF DEFENSE
REQUISITES: (Art. 51 of UN Charter)
- An armed attack
- Attack must be against a member of the UN
- Security Council must not have acted yet
DOCTRINE OF SELF-HELP
- the right to self-defense which is an extension of the right to self-preservation hence
under the general international law the right continues to exist even if attack is made
against a non-UN member state.
ALLIANCE EXISTS
- because members of UN have implicit faith in each others desire for world peace.
- some members feel the necessity of taking measures to give maximum feeling of
security either thru mutual protection or by outright combination of strength.

3. CASES
Island of Palmas Case
Facts:
In the 16th Century Spain discovered an island midway between Mindanao and Dutch
East Indies. However Spain did not effectively possess the territory. It was Holland which
exercised authority over the land. As a successor of Spain, the US asked that the island
be awarded to it.
Held:
The island cannot be given to the US for the inchoate title possessed by Spain never
ripened into a real title for its failure to effectively possess and administer the territory
within a reasonable period of time.
Inchoate Title discoverer must be given full opportunity to effectively possess and in the
meantime other states are legally excluded from the occupation of the territory involved.