STATE - Group of People, living together in a fixed territory, organized for political ends under an independent

government and capable of entering into international relations with other states.

A ) ELEMENTS OF A STATE:

A State should possess the following qualifications (Art. 1, Montevideo Convention):

1) a permanent population (people);

2) a defined territory;

3) government;

4) Independence or Sovereignty (freedom from outside control)

5) Civilization

6) Recognition(act by which a state acknowledges the existence of another state)

B) DISTINCTIONS BETWEEN SOVEREIGNTY AND INDEPENDENCE

B1. SOVEREIGNTY is the broader term. It refers to the supreme and uncontrollable power inherent in the State by which
such State is governed. It has 2 aspects:

1. INTERNAL- freedom of the State to manage its own affairs.

2. EXTERNAL- freedom of the State to direct its foreign affairs.

BAR MATTER JUNE 12, 2007: By the doctrine of sovereign immunity, a State, its agents and property are immune from
the Judicial process of another State, except with its consent. Thus, immunity may be waived and a State may permit
itself to be sued in the courts of another State.

4BLUE95: Sovereign immunity has developed into two schools of thought, namely, absolute immunity and restrictive
immunity. By absolute immunity, all acts of a State are covered or protected by immunity. On the other hand, restrictive
immunity makes a distinction between governmental or sovereign acts (acta jure imperi) and non governmental, propriety
or commercial acts (acta jure gestiones). Only the first category of acts is covered by sovereign immunity.

B2. INDEPENDENCE is synonymous with external sovereignty. It is defined as the power of a State to manage its
external affairs without direction or interference from another State.

C) PRINCIPLES OF STATE SUCCESSION

C1.STATE SUCCESSION is the substitution of one State by another, the latter taking over the rights and some of the
obligations of the former.

C2.2 types of State Succession:

1.UNIVERSAL- takes place when a State is completely annexed by another, or is dismembered or dissolved, or is created
as a result of merger of 2 or more States.

2.PARTIAL - takes place when a portion of the territory of a State loses part of its sovereignty by joining a confederation
or becoming a protectorate or suzerainty.
C3.Effects of State Succession

1.The allegiance of the inhabitants of the predecessor State is transferred to the successor State.

2.The political laws of the predecessor State are automatically abrogated but the non-political laws are deemed continued
unless expressly repealed or contrary to the institutions of the new sovereign.

3.The public property of the successor State is acquired by the successor State but not the tort liability of the former.

4.Treaties entered into by the predecessor State are not considered binding on the successor State except those dealing
with local rights and duties such as servitudes and boundaries.

2007 notes: Extinction of state is by emigration en masse of its population, loss of territory, overthrow of government
resulting in anarchy.

D) SUCCESSION OF GOVERNMENT

1.In succession of government, the integrity of the original State is not affected as what takes place is only a change in
one of its elements, the government.

2. Effects of a change in government:

--If effected by peaceful means, the new government inherits all rights and obligations of the old government.

--If effected by violence, the new government inherits all the rights of the old government. However, the new government
may reject the obligations of the old government if they are of a political complexion. If the obligations are the
consequence of the routinary act of administration of the old government, they should be respected.

2006 notes: state continues as a juristic being notwithstanding changes in its circumstances, provided only that such
changes do not result in the loss of any of its essential elements.

E) RECOGNITION:

Act by which a state acknowledges the existence of another state, a government or a belligerent community and indicates
its willingness to deal with the entity as such under international law.

Basic Rules on Recognition:

Effect of recognition is the right to sue in the courts of the recognizing state. It is a political act and mainly a matter of
policy on the part of each state; it is discretionary on the part of the recognizing authority and it is exercised by the political
(executive) department of the state. Thus, the legality and wisdom of recognition is not subject to judicial review.

THEORIES ON RECOGNITION:

Constitutive (Minority view):

Recognition is the act which constitutes the entity into an international person. Recognition is compulsory and legal, it may
be compelled once the elements of a state are established.

Declarative (Majority view)

Recognition merely affirms an existing fact, like the possession by the state of the essential elements. It is discretionary
and political.

REQUIREMENTS FOR RECOGNITION:

Government is stable and effective with no substantial resistance to its authority, the government must show willingness
and ability to discharge its international obligations and government must enjoy popular consent or approval of the people.

1.Tobar/ Wilson Doctrine: Precludes recognition of any government established by revolutionary means until constitutional
reorganization by free election of representatives.

2.Stimson Doctrine: No recognition of a government established through external aggression.

3.Estrada Doctrine: Since recognition has been construed as approval (and non recognition, disapproval) of a government
established through a political upheaval, a state may not issue a declaration giving recognition to such government, but
merely accept whatever government is in effective control w/o raising the issue of recognition. Dealing or not dealing with
the government is not a judgment on the legitimacy of the said government.

2006 notes: the Holy See has all the constituent elements of statehood. It has all the rights of a state, including diplomatic
intercourse, immunity from foreign jurisdiction etc…

2006 notes:in Holy See v delRosario: the SC distinguished Vatican City from the Holy See. The Holy See is an
international person with which the Philippines had diplomatic ties since 1957.

2006 notes: A colony is a dependent political community consisting of a number of citizens of the same country who have
migrated therefrom to inhabit another country but remain subject to the mother state.

2006 notes: A dependency is a territory distinct from the country in which the supreme sovereign power resides but
belongs rightfully to it and subject to the laws and regulations which the sovereign may prescribe.

CLASSES OF STATES:

1.Independent : has freedom to direct and control foreign relations without restraint from other states.

a.simple: single central government with power over internal and external affairs

b.composite:2 or more sovereign states joined together to constitute one international person which may be:

-real union: 2/more states are merged under a unified authority so that they form a single international person through
which they act as one entity.

-federal union: combination of 2/more states which upon merger, cease to be states ,resulting in the creation of a new
state with full international personality to represent them in their external relations as well as certain degree of power over
their domestic affairs and their inhabitants.

Authority over internal affairs: divided between federal authorities and the member-states

Authority over external affairs: handed solely by federal authorities

2.Dependent:

an entity (although theoretically a state) does not have full freedom in the direction of its external affairs, such as
protectorate (which is established at the request of the weaker state for the protection by a strong power)

or a suzerainty (which is the result of a concession from a state to a former colony that is allowed to be independent
subject to the retention by the former sovereign of certain powers over the external affairs of the latter)
3.Neutralized

Independence and integrity are guaranteed by an international treaty on the condition that such state obligates itself never
to take up arms against any other state (except in self-defense) or to enter into an international obligation as would
indirectly involved it in war.

KINDS OF RECOGNITION:

1.De facto - Extended by recognizing state which believes that some of the requirements for recognition are absent. The
recognition is generally provisional and limited to certain judicial relations, it does not bring about full diplomatic
intercourse and does not give title to assets of the state held abroad.

2.De Jure - Extended to a govt fulfilling the requirements for recognition. When there is no specific indication, recognition
is generally considered as de jure.

Recognition is relatively permanent, brings about full diplomatic intercourse and observance of diplomatic immunities and
confers title to assets abroad.

The distinction between de facto recognition and de jure recognition of a State is not clear in international law. It is,
however, usually assumed as a point of distinction that while de facto recognition is provisional and may be withdrawn
while de jure is final and cannot be withdrawn.

Confronted with the emergence of a new political entity in the international community, a State may experience some
difficulty in responding to the question whether the new political order qualifies to be regarded as a state under
international law, in particular from the viewpoint of its effectiveness and independence on a permanent basis. The
recognizing State may consider its act in regard to the new political entity as merely a de facto recognition, implying that it
may withdraw it if in the end it turns out that the conditions of statehood are not fulfilled should the new authority not
remain in power.

But even then, a de facto recognition in this context produces legal effects in the same way as de jure recognition.
Whether recognition is de facto or de jure, steps may be taken to withdraw recognition if the conditions of statehood in
international law are not fulfilled. Thus, from this standpoint, the distinction is not legally significant.

3.Belligerent Occupation:

Temporary military occupation of the enemy’s territory during the war. The occupant need not have its feet planted on
every square ft of territory, provided it maintains effective control and military superiority therein, being able to send,in
case of attack, sufficient forces to assert its authority within a reasonable time.

Conditions for Recognition of Belligerency:

1.organized civil government having control and supervision over the armed struggle.

2.serious & widespread struggle with the outcome uncertain.

3.occupation of a substantial portion of the national territory

4.willingness on the part of the rebels to observe the rules/customs of war

2006 notes

(1)Absence of any of the foregoing conditions will result merely in insurgency which is rarely recognized.
(2)recognition may either be express or implied, the proclamation by the parent state of a blockade of a port held by the
rebels is implied recognition of belligerency, so is the proclamation of neutrality by a third state.

Territories under international control or supervision.

Non- self governing territories which have been place under international supervision or control to insure their political,
economic, social and educational advancement.

An example are mandates which were former territorial possessions of the states defeated in world war 1 and placed
under the control of the League of Nations. Many of these mandates became trust territories placed under the trusteeship
council of the United Nations.

2006 notes: A condominium is a territory jointly administered by two states.

F) RIGHT OF LEGATION

Right of Legation is the Right of the State to send and receive diplomatic missions, which enables States to carry on
friendly intercourse. It is not natural or inherent right, but exists only by common consent.

No legal liability is incurred by the State for refusing to send/receive diplomatic representatives (Vienna Convention on
Diplomatic Relations)

Agents of Diplomatic Intercourse:

a. Head of State: He is immune from criminal and civil jurisdiction except when he himself is the plaintiff.

b. Foreign Office: Actual day to day conduct of foreign affairs is usually entrusted to a Foreign Office, headed by a
Secretary or Minister who in proper case may make binding declarations on behalf of his government.

A1. HEAD OF MISSION

Classification of Head of Mission:

1.Ambassadors—head of the Diplomatic Corps (accredited to Heads of State) and other heads of mission of equal rank

2.Envoys,ministers and internuncios(accredited to Heads of State)

3.Charges de Affaires (accredited to Ministers of Foreign Affairs.)

Immunity of Head of Mission:

1.Personal Inviolability: not be liable to any form of arrest or detention. However, an envoy may be arrested temporarily in
case of urgent danger, such as when he commits an act of violence which makes it necessary to put him under restraint
for the purpose of preventing similar acts, but he must be released and sent home in due time.

2.Inviolability of Premises and archives: agents of receiving state may not enter without the consent of the envoy, except
in extreme cases of necessity (fire or crime of violence w/in the premises). Service of writs and summons is prohibited,
even if the criminal takes refuge inside. The fugitive should be surrendered upon demand by local authorities except when
the right of asylum exist. But if it is the ambassador himself who requests local police assistance, this privilege cannot be
invoke.

2006 notes: Vienna Convention provides that the receiving State has the special duty to protect diplomatic premises
against invasion, damage or any act tending to disrupt the peace and dignity of the mission. However, in Reyes v
Bagatsing: SC held invalid the denial by the Mayor of the application of permit to hold a public assembly in front of the US
Embassy there being no showing of a clear and present danger that might arise as a result of such rally.
3.Right of Official Communication

4.Exemption from taxes and custom duties

5.Immunity from Local Jurisdiction - Diplomatic agent enjoys immunity from the civil and administrative jurisdiction of the
receiving State, and thus, no civil action of any kind may be brought against him, even with respect to matters concerning
his private life.

As a rule, his properties are not subject to garnishment or seizure for debt or execution except in the ff:

1.any real action relating to immovable property situated in the territory of the receiving state unless the envoy holds it on
behalf of the sending state for the purpose of the mission.

2.an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a
private person and not on behalf of the sending state.

3.an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state
outside his official functions.

4BLUE 95 notes: this immunity also means that the diplomatic agent cannot be compelled to testify not even by
deposition without the consent of his government, before any judicial or administrative tribunal in the receiving State.

6.Other Privileges: freedom of movement and travel in the territory of the receiving state; exemption from all personal
services and military obligations; use of the flag and emblem of the sending State on the diplomatic premises and the
residence and means of transport of the head of mission.

Duration of Privileges: from the moment he enters territory of the receiving state and shall cease only from the moment he
leaves the country or on expiry of a reasonable time in which to do so.

4BLUE 95 notes: Diplomatic Immunities may be waived but as a rule, the waiver cannot be waived by the individual
concerned since such immunities are not personal to him.

Waiver may be made only by the government of the sending state if it concerns the immunities of the head of the mission.

In other cases, waiver may be made either by the government or by the chief of mission. Waiver of this privilege does not
include waiver of the immunity in respect of the execution of judgment, a separate waiver for the latter is necessary.

BAR: A foreign ambassador to the Philippines leased a vacation house in Tagaytay for his personal use. For some
reason, he failed to pay rentals for more than one year. The lessor filed an action for the recovery of his property in
court.can the foreign ambassador invoke his diplomatic immunity to resist the lessor ’s action? (3%)

No. the foreign ambassador cannot invoke the diplomatic immunity to resist the action, since he is not using the house in
Tagaytay City for the purposes of his mission but merely for vacation. Under Article 3(1)(a) of the Vienna Convention on
Diplomatic Relations, a diplomatic agent has no immunity in case of a real action relating to private immovable property
situated in the territory of the receiving State unless he holds it on behalf of the sending State for purposes of the mission.

The lessor gets hold of evidence that the ambassador is about to return to his home country. Can the lessor ask the court
to stop the ambassador’s departure from the Philippines? (2%)No. the lessor cannot ask the court to stop the departure of
the ambassador from the Philippines. Under Article 29 of the Vienna Convention, a diplomatic agent shall not be liable to
any from of arrest or detention.

A2.CONSULAR RELATIONS

Consuls are State agents residing abroad for various purposes but mainly in the interest of commerce and navigation.

2 important documents are necessary before the assumption of consular functions:

1.letters patent: letter of appointment or commission which is transmitted by the sending state to the Secretary of Foreign
Affairs of the country where the consul is to serve.

2.Exequatur: authorization given to the consul by the sovereign of the receiving state, allowing him to exercise his function
within the territory.

Immunities (Vienna Convention on Consular Relations):

1. freedom of communication in cipher or otherwise

2. inviolability of archives but not of the premises where legal processes may be served and arrests made

3. exempt from local jurisdiction for offenses committed in the discharge of official functions but not other offenses except
minor infractions

4. exempt from testifying on official communications or on matters pertaining to consular functions

5. exempt from taxes, custom duties, military or jury service

6. may display their national flag and emblem in the consulate.

4BLUE 95 notes: these immunities and privileges are also available to the members of the consular post, their families
and their private staff. Waiver of immunities may be made by the appointing state.

2006 notes: consuls are liable for transactions done in their personal (private) capacity

BAR: A group of high-ranking officials and rank-and-file employees stationed in a foreign embassy in Manila were
arrested outside embassy grounds and detained as Camp Crame on suspicion that they were actively collaborating with
“terrorists” out to overthrow or destabilize the Philippine Government. The Foreign Ambassador sought their immediate
release, claiming that the detained embassy officials and employees enjoyed diplomatic immunity. If invited to express
your legal opinion on the matter, what advice would you give?

I shall advice that the high-ranking officials and rank-and-file employees be released because of their diplomatic immunity.
Article 29 of the Vienna Convention on Diplomatic Relations provides: “The person of a diplomatic agent shall be
inviolable. He shall not be liable to any form of arrest or detention.”

Under Article 37 of the Vienna Convention on Diplomatic Relations, members of the administrative and technical staff of
the diplomatic mission, shall, if they are not nationals of or permanent residents in the receiving State, enjoy the privileges
and immunities specified in Article 29.

Under Article 9 of the Vienna Convention on Diplomatic Relations, the remedy is to declare the high-ranking officials and
rank- and-file employees personae non grate and ask them to leave.

BAR: Discuss the difference, if any, in the privileges or immunities of diplomatic envoys and consular officers from the civil
or criminal jurisdiction of the receiving state.

Under Article 32 of the Vienna Convention on Diplomatic Relations, a diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction except
in the case of:

(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on
behalf of the sending State or the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is invoked as executor, administrator, heir or legatee as
a private person and not on behalf of the sending State;

An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State
outside his official functions.
On the other hand, under Article 41 of the Vienna Convention on Consular Relations, a consular officer does not enjoy
immunity from the Criminal jurisdiction of the receiving State. Under Article 43 of the Vienna Convention on Consular
Relations, consular officers are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving
State in respect of acts performed in the exercise of consular functions. However, this does not apply in respect of a civil
action either:

(a) arising out of a contract concluded by a consular officer in which he did not contract expressly or impliedly as an agent
of the sending State; or

(b) by a third party for damage arising from an accident in the receiving State caused y a vehicle, vessel, or aircraft.

BAR: A consul of a South American country stationed in Manila was charged with serious physical injuries. May he claim
immunity from jurisdiction of the local court? No he may not claim immunity from the jurisdiction of the local court. Under
Article 41 of the Vienna Convention of Consular Relations, consuls do not enjoy immunity from the criminal jurisdiction of
the receiving State. He is not liable to arrest or detention pending trial unless the offense was committed against his
father, mother, child, ascendant, descendant or spouse. Consuls are not liable to arrest and detention pending trial except
in the case of a grave crime and pursuant to a decision by the competent judicial authority. The crime of physical injuries
is not a grave crime unless it is committed against any of the above-mentioned persons. (Schneckenburger v. Moran, 63
Phil. 249).

Suppose after he was charged, he was appointed as his country ’s ambassador to the Philippines. Can his newly-gained
diplomatic status be a ground for dismissal of his criminal case? Yes, the case should be dismissed, Under Article 40 of
the Vienna Convention on Diplomatic Relations, if a diplomatic agent is in the territory of a third State, whish has granted
him a passport visa if such visa was necessary, while proceeding to take up his post, the third State shall accord him
inviolability and such other immunities as may be required to ensure his transit.