XVI.

Public International Law

A. Concepts
1. Obligations erga omnes
i. Obligations of a state towards the international community as a
whole;
ii. Concerned all states and all states can be held to have legal interest
in their protection
iii. Examples: outlawing of aggression and of genocide, prohibition of
torture
iv. Concerns the scope of the application of a relevant rule, thus has a
procedural focus
1. To the extent to which states may be subject to a rule, and
may be seen to having a legal interest in the matter
2. Jus cogens
i. Substantive rules recognized of a higher status
ii. Accepted and recognized by the international community as a norm
from which no derogation is permitted, and which can be modified
only by a subsequent norm of general international law having the
same character
iii. Acceptance of fundamental and superior values within the system
and in some respects is akin to the notion of public order or policy in
domestic legal orders.
iv. How created
1. Establishment of the proposition as a rule of general
international law
2. Acceptance of that rule as a peremptory norm by the
international community of states as a whole
v. Only rules based on custom or treaties may form the foundation of
jus cogens
vi. A treaty contrary to an existing jus cogens is void ab initio (Article
53, Vienna Convention)
vii. An existing treaty that conflicts with an emergent rule of jus cogens
terminates from the date of the emergence of the rule (Article 64,
VC)
3. Concept of ex aequo et bono
i. Decide a case on the basis of justice and equity untrammeled by
technical legal rules where the parties agree

B. International and national/municipal law

1. GR: A state which has broken a stipulation of international law cannot
justify itself by referring to its domestic legal situation.
i. It is no defense to a breach of an international obligation to argue
that the state acted in such manner because it was following the
dictates of its own municipal laws.
1. Thus, a party may not invoke provisions of its internal law as
justification for its failure to carry out international agreement
(Article 27, VC).
ii. Inability to act under domestic law was no defense to non-
compliance with an international obligation. (Lockerbie case)

1
 2. However, such expressions of the supremacy of international law over
municipal law in international tribunals do not mean that provisions of
domestic legislation are irrelevant.
i. One of the ways it is possible to understand and discover a state’s
legal position in a variety of topics important to international law is
by examining municipal laws.
ii. Further, rules of municipal laws can be utilized as evidence of
compliance or non-compliance with their international obligations
iii. Municipal laws are mere facts which express the will and constitute
activities of the states.

C. Sources (Article 38(1), ICJ Statute)

1. Treaties or International conventions
i. Written agreements whereby the states participating bind themselves
legally to act in a particular way or to set up particular relations
between themselves.
ii. Parties that do not sign and ratify a particular treaty are not bound
by its terms.
1. However, where treaties reflect customary law, then non-
parties are bound, not because it is a treaty provision, but
because it reaffirms a rule or rules of customary international
law.
a. a provision in a treaty may constitute the basis of a rule
which, when coupled with opinio juris, can lead to the
creation of a binding custom governing all states, not
just those party to the original treaty
i. but the particular provision must be of a
fundamentally norm-creating character, that is,
capable of forming a basis of a general rule of
law.
1. However, it is now established that where
a treaty rule comes into being covering
the same ground as a customary rule, the
latter will not be simply absorbed within
the former, but will maintain its separate
existence.
2. International custom
i. The essence of custom is that it should constitute evidence of a
general practice accepted as law.
1. The substance of customary law must be looked for primarily
in the actual practice and opinio juris of states. (Libya/Malta
case)
2. For a new customary rule to be formed, not only must the acts
concerned “amount to a settled practice”, but they must be
accompanied by opinio juris sive necessitatis. (Nicaragua case)
3. Elements
a. State practice/usage
i. Material facts; actual behavior of states
ii. Continuity and repetition
1. Customary rule must be in accordance

2
 with a constant and uniform usage
practised by the States in question
(Asylum case)
iii. It is how states behave in practice that forms the
basis of customary law.
iv. Evidence of what a state does can be obtained
from numerous sources
1. Examples include administrative acts,
legislation, decisions of courts, activities
on the international state, e.g., treaty-
making
b. Opinio juris sive necessitatis (opinio juris)
i. Subjective element/psychological factor =
subjective belief that such behavior is law
ii. The belief by a state that behaved in a certain
way that it was under legal obligation to act that
way
iii. The belief that a state activity is legally
obligatory
iv. It is the factor that turns the usage into a custom
and renders it part of the rules of international
law
v. States will behave a certain way because they are
convinced it is binding upon them to do so.
ii. Established by virtue of a pattern of claim, absence of protest by
states concerned, and acquiescence by other states.
3. General principles of law recognized by civilized nations
i. General principles that guide the legal system, whether emanating
from justice, equity or considerations of public policy
1. Some general principles:
a. Every violation involves an obligation to make
reparation
b. Concept of res judicata
c. Principle of estoppel
d. Respect for acquired rights
e. Pacta sunt servanda
i. That international agreements are binding
f. Principle of good faith
g. Ex injuria jus non oritur
i. Facts flowing from wrongful conduct cannot
determine the law
h. Concept of equity
4. Judicial decisions, and teachings of the most highly qualified publicists
of various nations
i. Judicial decisions are utilized as subsidiary means for the
determination of rules of law rather than as an actual source of law.
1. By virtue of Article 59 of the ICJ Statute, decisions of the Court
have no binding force except as between the parties and in
respect of the case under consideration
a. But the ICJ has striven to follow its previous judgments

3
 and insert a measure of certainty within the process
2. The doctrine of precedent (stare decisis) does not exist in
international law, but one still finds that states in disputes and
textbook writes quote judgments of the ICJ and the Permanent
Court as authoritative decisions.
3. Judicial decisions also encompass international arbitral awards
and rulings of national courts
ii. Works of jurists and commentators who by their years of labor,
research and experience have made themselves peculiarly well
acquainted with the subjects of which they treat

D. Subjects
1. States
i. Most important legal persons in international law
ii. A community which consists of a territory and a population subject
to an organized political authority and that characterized by
sovereignty.
iii. The state as an international person should possess the following:
1. Permanent population
a. Naturally required, and there is no specification of a
minimum number of inhabitants
2. Defined territory
a. Requirement for a particular territorial base upon which
to operate
b. There is no necessity for defined and settled
boundaries, so long as there is a consistent band of
territory which is undeniably controlled by the
government of the alleged state
3. Government
a. An indication of a coherent political structure and
society
4. Capacity to enter into relations with other
states/sovereignty
a. Capacity not limited to sovereign nations as
international organizations, non independent states
and other bodies can enter into legal relations with
other entities under the rules of international law
b. The essence of such capacity is independence.
iv. Principle of self-determination
1. May be relevant as additional criterion of statehood
2. Provides that people of the colonially defined territorial unit
may freely determine their own political status
a. Such determination may result in independence,
integration with neighboring state, free association with
an independent state or any other political status freely
decided upon by the people concerned
v. Fundamental rights of states
1. Independence
2. Equality
3. Peaceful co-existence

4
 vi. Recognition of states
1. Theories
a. Constitutive theory
i. It is the act of recognition by other states that
creates a new state and endows it with legal
personality and not the process by which it
actually obtained independence; by virtue of will
and consent of already existing states
b. Declaratory theory
i. Recognition is merely an acceptance by states of
an already existing situation. A new state will
acquire capacity in international law not by virtue
of consent of others but by virtue of a particular
factual situation. It will be legally constituted by
its own efforts and circumstances and will not
have to wait the procedure of recognition by
other states.
2. Recognition of government
a. When a government is recognized it is considered by
the one according recognition as possessed of
authority to represent the State it purports to govern.
b. The government whose recognition is sought must
satisfy certain minimal requirements:
i. Government must be effective and stable
ii. Government must show willingness and ability to
discharge international obligations.
c. Kinds:
i. De facto recognition
1. In the view of the recognizing state, the
new government although independent,
has not acquired sufficient stability or
does not as yet offer prospects of
complying with other requirements of
recognition, such as a willingness or
ability to fulfill international obligations.
2. A de facto government is one which is in
possession of the powers of sovereignty
but possession may be wrongful or
precarious.
ii. De jure recognition
1. Relatively permanent recognition;
2. Confers full diplomatic intercourse
3. Recognition of insurgency or belligerency
a. Belligerency is the existence of actual hostilities
amounting to civil war within a single state
b. Recognition of belligerency may be accorded, but
rebels have to fulfill certain conditions before rights of
belligerency are accorded to them:
i. An organized civil government has control and
direction over the armed struggle launched by

5
 the rebels;
ii. Occupation of the substantial portion of the
national territory;
iii. Seriousness of the struggle, which must be
widespread
iv. Willingness on the part of the rebels to observe
the rules and customs of war
c. Legal consequences of recognition of belligerency
i. Legitimate government may no longer be held
responsible for their acts; responsibility is
shifted to the rebels
ii. Legitimate government once it recognizes the
rebels as belligerents, is bound to observe the
laws and customs of war in conducting the
hostilities
iii. From the point of view of third states,
recognition of belligerency is to put them under
obligation to observe strict neutrality and abide
by the consequences arising from that position.
iv. On the side of the rebels, recognition of
belligerency puts them under responsibility to
third states and to the legitimate government for
all their acts which do not conform to the laws
and customs of war.

2. International organizations
i. An organization established by treaty or other instrument governed
by international law and possessing its own legal personality.
ii. The possession of international legal personality meant that the
organization was a subject of international law and capable of having
international rights and duties and of enforcing them by bringing
international claims
iii. It is now well established that international organizations may indeed
possess objective international legal personality
iv. Whether an organization possesses personality in international law
will hinge upon its constitutional status, its actual powers and
practice.
v. The very nature, status and authority of such organizations will
depend primarily upon the terms of the constituent instruments or
constitutions under which they are established.
3. Individuals
i. It is maintained that individuals only constitute as subject-matter
of intended legal regulation, and only states are the subjects of the
law.
ii. GR: they lack the standing to assert violations of international
treaties in the absence of a protest by the state of nationality
1. although states may agree to confer particular rights on
individuals which will be enforceable under international
law, independently of municipal law
iii. It is now established that international law proscribes certain

6
 heinous conduct in a manner that imports direct individual
criminal responsibility

E. Diplomatic and consular law

1. Vienna Convention on Diplomatic Relations, 1961
i. Came into force in 1964
ii. Emphasizes the functional necessity of diplomatic privileges and
immunities for the efficient conduct of international relations as well
as pointing to the character of the diplomatic mission representing
the state.
iii. Questions not established by the convention continue to be governed
by the rules of customary international law
iv. Continues to apply albeit the existence of a state of armed conflict
between states concerned
v. There is no right to diplomatic relations, and they exist by virtue of
mutual consent.
1. Thus, Article 4: sending state must ensure consent that the
receiving state has been given for the proposed head of its
mission, and reasons for any refusal of consent do not have to
be given.
2. Article 9: the receiving state may at any time declare any
member of the diplomatic mission persona non grata without
having to explain its decision, and thus obtain removal of that
person.
vi. The main functions of a diplomatic mission revolve around the
representation and protection of the interests and nationals of the
sending state, as well as the promotion of information and friendly
relations.
vii. Article 41(1): emphasizes the duty of all persons enjoying the
privileges and immunities with respect to the laws and regulations of
the receiving state and the duty to not interfere in the internal affairs
of the state
viii. Article 13: heads of mission is deemed to have taken up his
functions in the receiving state upon presentation of credentials
1. Article 14: Heads of mission, classes:
a. Ambassadors or nuncios accredited to heads of state
and other heads of mission of equivalent rank;
b. Envoys, ministers, and internuncios accredited to heads
of state;
c. Charge d’affaires accredited to ministers of foreign
affairs
ix. Inviolability of the premises of the mission
1. Article 22: premises of the mission are inviolable and the
agents of the receiving state are not to enter them without
consent of the mission.
a. This is in order to facilitate normal diplomatic
operations.
2. The receiving state is under special duty to protect the
mission premises from intrusion or damage or impairment of
its dignity.

7
 3. Article 45(a): after a break of diplomatic relations, the
receiving state must respect and protect the premises of the
mission;
a. Note that there is a difference between inviolability
under Article 22, and respect and protection under
Article 45(a)
b. For instance, an issue raised on whether a search was
permissible after a break of diplomatic relations
i. The English view is that Article 45(a) does not
mean that the premises continue to be
inviolable.
4. Inviolability of premises must not be confused with
extraterritoriality; such premises do not constitute part of the
territory of the sending state
x. Diplomatic bag
1. Article 27: the receiving state shall permit and protect free
communication on behalf of the mission for all official
purposes
a. Such official communication is inviolable and may
include diplomatic couriers and messages in code and
in cipher, although consent of the receiving state is
required for a wireless transmitter.
2. The diplomatic bag shall not be opened or detained and that
packages constituting the diplomatic bag must bear visible
external marks of their character and may contain only
diplomatic documents or articles intended for official use
3. Diplomatic courier
a. A person accompanying a diplomatic bag
b. He is to enjoy immunities and inviolability that is akin
to that governing diplomats;
c. He is to enjoy personal inviolability and is not liable to
any form of arrest or detention
d. His temporary accommodation is inviolable
e. He will benefit from immunity from criminal and civil
jurisdiction of the receiving or transit state in respect to
acts performed in the exercise of his functions
f. His privileges and immunities last from the moment he
enters the territory of the receiving or transit state until
he leaves such state.
xi. Diplomatic immunities
1. Property
a. Article 23: general exception from taxation in respect
of the mission
b. Philippine Embassy case: in light of customary and
treaty law, property used by the sending state for the
performance of its diplomatic functions in any event
enjoys immunity even if it does not fall within the
material or spatial scope of Article 22.
i. An account used to meet the day-to-day
expenses of a diplomatic mission would therefor

8
 be immune
c. Article 25: receiving state shall afford full facilities for
the performance of the functions of the mission.
d. Article 24: consular archives and documents of the
mission are inviolable at any time and wherever they
may be.
2. Personal
a. Article 29: person of a diplomatic agent is inviolable; he
may not be detained or arrested
i. This is the most fundamental rule and the oldest
established rule of diplomatic law.
b. States recognize that the protection of diplomats is a
mutual interest founded on functional requirements
and reciprocity
c. The receiving state is under an obligation to take all
appropriate steps to prevent any attack on the person,
freedom or dignity of diplomatic agents.
d. UN Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons,
Including Diplomatic Agents
i. Adopted in 1973; response to a period of
kidnappings of diplomats
ii. Provides that a state must take attacks upon
such persons a crime in internal law with
appropriate penalties and take such measures as
may be necessary to establish jurisdiction over
such crimes;
iii. State parties are obliged to extradite or
prosecute offenders.
e. Article 30(1): inviolability of the private residence of the
diplomatic agent
f. Article 30(2): papers, correspondences, properties of
the diplomatic agent are inviolable
g. As far as criminal jurisdiction is concerned, diplomatic
agents enjoy complete immunity from the legal system
of the receiving state, but there is no such immunity
from jurisdiction of the sending state.
i. The only remedy of the host state for alleged
offenses committed by diplomatic agents is to
declare him persona non grata under Article 9.
h. Article 31(1): diplomats are immune from civil and
administrative jurisdiction of the receiving state except
in three instances:
i. Where the action relates to private immovable
property situated within the host state, unless
held for mission purposes
ii. In litigation relating to succession matters in
which the diplomat involved is a private person
iii. With respect to unofficial professional or
commercial activity engaged in by the agent

9
 i. Article 31(2): a diplomat cannot be obliged to give
evidence as a witness
j. Article 31(3): no measure of execution may be taken
against such person except in cases referred to in
Article 31(1), and provided that the measures
concerned can be taken without infringing the
inviolability of his person or of his residences
k. Diplomatic agents are generally exempt from social
security provisions in force in the receiving state, from
all dues and taxes, personal or real, regional or
municipal except for indirect taxes, from personal and
public services, and from custom duties and inspection.
l. Article 37: members of the family of the diplomat
forming part of his household shall enjoy the privileges
and immunities specified in Article 29 to 36 if not
nationals of the receiving state.
m. Members of administrative and technical staff, if not
nationals or permanent residents of the receiving state,
may similarly benefit from articles 29-35, except that
article 31(1) immunities do not extend beyond acts
performed in the course of their duties, while members
of the service staff, who are not nationals or permanent
residents of the receiving state, benefit from immunity
regarding acts performed in the course of official
duties.
n. Immunities and privileges start from the moment the
person enters the territory of the receiving state on
proceeding to take up his post or, if already in the
territory, from the moment of official notification under
Article 39.
o. Article 40: provides for immunity where the person is in
the territory in transit in between his home state and a
third state to which he has been posted.
p. Immunities and privileges normally cease when the
person leaves the country or on expiry of the period in
which to do so.
i. Article 39(2): continuing immunity with regard to
those acts that were performed in the exercise of
his functions as a member of the mission
xii. Waiver of immunity
1. Article 32: the sending state may waive immunity from
jurisdiction of diplomatic agents and other possessing
immunity under the Convention;
2. Waiver of immunity does not belong to the individual but for
the benefit of the sending state
a. such waiver must be express.
b. Performed clearly by the state as such
2. Vienna Convention on Consular Relations, 1963
i. Consuls represent states in administrative ways, but they are unable
to intervene in the judicial process, or internal affairs of the receiving

10
 state or give legal advice or investigate a crime.
1. Their political functions are very few and they are accordingly
not permitted the same degree of immunity from jurisdiction
as diplomatic agents.
ii. Article 31: consular premises are inviolable and may not be entered
by the authorities of the receiving state without consent
1. Like diplomatic premises, they must be protected against
intrusion or impairment of dignity, and similar immunities
exist with regard to archives and documents, and exemption
from taxes
iii. Article 35: provides for freedom of communication, emphasizing the
inviolability of the official correspondence of the consular post and
establishing that the consular bag should neither be opened nor
detained
1. However, in contrast to the diplomatic bag, where authorities
of the receiving state have serious reason to believe that the
bag contains other than official correspondence, documents
or articles, they may request that the bag be opened and, if
this is refused, the bag shall be returned to its place of origin.
iv. Article 36(1): consular officers shall be free to communicate with
nationals of the sending state and to have access to them, while
nationals shall have the same freedom with and access to consular
officers
1. Article 36(1)b: if the national so requests, the authorities of
the receiving state shall without delay inform the consular
post of the sending state of any arrest or detention.
a. Authorities in question shall inform the national of the
sending state without delay of his or her rights; any
communication from the detained national to the
consular post must be forwarded without delay.
i. 36(1)b created individual rights for persons
concerned which can be invoked by the state,
which, by virtue of the Optional Protocol on
Compulsory Settlement of Disputes attached to
the Convention, may be brought before the
Court. (International Court)
1. The international court has underlined
that violations of individual rights under
this provision may also violate rights of
the state itself, while such violation could
also constitute violations of the individual.
v. Article 41: consular officers may not be arrested or detained except
in case of a grave crime and following a decision by a competent
judicial authority
1. If criminal proceedings are instituted against a consul, he
must appear before the competent authorities
vi. Article 43: consular immunity from jurisdiction is restricted in both
criminal and civil matters to acts done in official exercise of consular
functions.
3. Convention on Special Missions, 1969

11
 i. Article 8: the sending state must let the host know of the size and
composition of the mission
ii. Article 17: mission must be sited in a place agreed by the states
concerned or in the Foreign Ministry of the receiving state
iii. Article 31: members of special missions have no immunity with
respect to claims arising from an accident caused by a vehicle, used
outside the official function of the person involved
iv. Article 27: only such freedom of movement and travel as is necessary
for the performance of the functions of the special mission is
permitted.
4. Vienna Convention on the Representation of States in their Relations
with International Organizations of a Universal Character, 1975
i. Applies with respect to the representation of states in any
international organization of a universal character, irrespective of
whether there are diplomatic relations between the sending and
receiving states
1. Diplomatic staff enjoy complete immunity from criminal
jurisdiction, and immunity from civil and administrative
jurisdiction, with same exceptions as in article 31 of the 1961
Convention.
2. Mission premises are inviolable and exempt from taxation by
the host state, while its archives, documents, and
correspondence are equally inviolable.
5. Immunities of international organizations
i. Usually by means of a treaty providing for such immunities to
international institutions sited on the territory of the host state, as
are regarded as functionally necessary for the fulfillment of its
objectives.

F. Treaties
1. Vienna Convention on the Law of Treaties
i. The fundamental principle of treat law is undoubtedly the
proposition that treaties are binding upon the parties to them and
must be performed in good faith = pacta sunt servanda
1. Article 2: treaty defined as an international agreement
concluded between states in written form and governed by
international law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular
designation.
ii. Excludes agreement involving international organizations
1. Also does not cover agreements between states which are to
be governed by municipal law
iii. Article 3: international agreements between states and other subjects
of international law or between two or more subjects of international
law, or oral agreements, do not lose their validity by being excluded
from the framework of the Convention.
iv. Making of treaties
1. Formalities
a. There is no prescribed form or procedure, and how a
treaty is formulated and by whom it is actually signed

12
 will depend upon the intention and agreement of the
states concerned.
b. Article 7: full powers
i. In international law, states have the capacity to
make agreements, but since states are not
identifiable human persons, particular principles
have evolved to ensure persons representing
states indeed have the power so to do for the
purpose of concluding the treaty in question.
ii. Full powers refer to documents certifying status
from the competent authorities of the state in
question.
iii. This provision provides security to the other
parties to the treaty that they are making
agreements with a person competent to do so.
1. However, certain persons do not need to
produce such full powers, by virtue of
their position and functions, e.g.:
a. heads of state and government and
foreign ministers for the purpose of
performing all acts relating to the
conclusion of the treaty
i. Every head of state is
presumed to act on behalf of
the state in its international
relations. (Bosnia v Serbia)
b. heads of diplomatic missions for
the purpose of adopting the text of
the treaty between their country
and the country to which they are
accredited;
c. representatives accredited to
international conferences or
organizations for the purpose of
adopting the text of the treaty in
that particular conference or
organization.
iv. Any act relating to the making of a treaty by a
person not authorized as required will be
without legal effects, unless the state afterwards
confirms the act.
2. Consent
a. Consent of the state parties is a vital factor since states
may be bound only by their consent.
b. Once a treaty has been drafted and agreed by
authorized representatives, the text of the agreement
drawn up by the negotiators of the parties has to be
adopted
i. Article 9: adoption of international conferences
takes place by vote of two-thirds of the states

13
 present and voting, unless by the same majority
it is decided to apply for a different rule
c. In cases other than international conferences, adoption
will take place by the consent of all the states involved
in drawing up the text of the agreement
d. Ways in which a state may express its consent to an
international agreement
i. Article 11
1. By signature
a. Article 12: where the treaty
provides that signature shall have
the effect, or where it is otherwise
established that the negotiating
states were agreed that signature
should have that effect, or where
the intention of the state to give
that effect to the signature appears
from the full powers of its
representatives or was expressed
during negotiations
2. Exchange of instruments constituting a
treaty
a. Article 13: consent of states to be
bound by a treaty constituted by
instruments exchanged between
them may be expressed by the
exchange when the instruments
declare that their exchange shall
have that effect, or it is otherwise
established that those states had
agreed that the exchange of
instruments should have that
effect.
3. Ratification
a. Originally devised to ensure that
the representative did not exceed
his powers or instructions with
regard to the making of a particular
agreement.
b. Advantages of ratification
i. Internal = they reflect
change in political
atmosphere and led to a
greater participation by a
state’s population in public
affairs
ii. External = delay between
signature and ratification
may often be advantageous
in allowing extra time for

14
 consideration, once the
negotiating process has
been completed
c. Rules relating to ratification vary
from country to country; the
question of how a state effects
ratification is a matter of internal
law and outside international law
d. Article 14: ratification will express
a state’s consent to be bound by a
treaty: where the treaty so
provides; it is otherwise established
that the negotiating states were
agreed that ratification should be
required; the representative of the
state has signed the treaty subject
to ratification or the intention of
the state to sign the treaty subject
to ratification appears from the full
powers of its representative or was
expressed during negotiations.
4. Acceptance
5. Approval
6. Accession
a. Normal method by which a state
becomes party to a treaty it has not
signed either because the treaty
provides that the signature is
limited to certain states, and it is
not such a state, or because a
particular deadline for signature
has passed.
b. Article 15: consent by accession is
possible where the treaty so
provides, or the negotiating states
were agreed or subsequently agree
that consent by accession could
occur in the case of the state in
question
7. Other means, if so agreed
e. Reservation to treaties
i. Definition; Article 2: a unilateral statement,
however phrased or named, made by a state,
when signing, ratifying, accepting, approving, or
acceding to a treaty, or where it purports to
exclude or to modify the legal effect of certain
provisions of the treaty in their application to the
state.
ii. Where a state is satisfied with most of the terms
of the treaty, but is unhappy with certain

15
 provisions, it may, in certain circumstances, wish
to refuse to accept or be bound by such
provisions, while consenting to the rest of the
agreement
iii. This does not arise in cases of bilateral treaties,
since a reservation by one party to a proposed
term would necessitate renegotiation. An
agreement between two parties cannot exist
where one party refuses to accept some
provisions of the treaty.
iv. Reservations must be distinguished from other
statements made with regard to a treaty that are
not intended to have legal effect of a reservation,
such as understandings, political statements or
interpretative declarations.
1. Mere interpretative declarations
a. No binding consequence is
intended
2. Qualified interpretative declarations
a. Capable in certain circumstances of
constituting reservation
v. In order to determine whether a unilateral
statement made constitutes a reservation or an
interpretative declaration, the statement will
have to be interpreted in good faith in
accordance with the ordinary meaning to be
given to its terms and within the context of the
treaty in question.
vi. General Rule: reservations could only be made
with the consent of all other states involved in
the process.
1. A state wishing to make a reservation
must obtain the consent of all other
parties to the treaty.
2. This was to preserve as much of unity of
approach as possible to ensure the
success of an international agreement and
to minimize deviations from the text of
the treaty.
a. However, this restrictive approach
to reservations was not accepted by
the ICJ in the Reservations to the
Genocide Convention Case.
i. The Court held that a state
which has made and
maintained a reservation
which has been objected to
by one or more parties to
the Convention but not by
others, can be regarded as

16
 being a party to the
Convention if reservation is
compatible with the object
and purpose of the
Convention.
ii. Compatibility could be
decided by the states
individually; if a party to the
convention objects to a
reservation which it
considers incompatible with
the object of the Convention,
it can consider that the
reserving state is not a party
to the convention.
vii. Article 19: reservations may be made by signing,
ratifying, accepting, approving or acceding to a
treaty, but they cannot be made where the
reservation is prohibited by the treaty, or where
the treaty provides that only specified
reservations may be made and these do not
include reservation in question, or where the
reservation is not compatible with the object and
purpose of the treaty.
viii. Effects of reservation; Article 21: a reservation
established with regard to another party
modifies, for the reserving state in its relations
with the other party, the provisions of the treaty
to which the reservation relates, to the extent of
the reservation.
1. Article 21(3): where a state objects to a
reservation, but not to the entry into force
of the treaty between itself and the
reserving state, then the provisions to
which the reservation relates do not apply
as between the two states to the extent of
the reservation.
ix. In general, reservations are deemed to have been
accepted by states that have raised no objections
to them at the end of a period of twelve months
after notification of the reservation, or by the
date on which consent to be bound by the treaty
was expressed, whichever is later.
x. Reservations must be in writing and
communicated to the contracting states and
other states entitled to become parties to the
treaty, as must acceptances of, and objections
to, reservations.
xi. Reservations to multilateral treaty may be
withdrawn, subject to agreement to the contrary,

17
 only when other states to the treaty have
received notification of that withdrawal.
3. Entry into force
a. In the absence of provision or agreement regarding
when a treaty will become operative, a treaty will enter
into force as soon as consent to be bound by the treaty
has been established for all the negotiating states.
b. Article 80: treaties should be submitted to the UN
Secretariat for registration and publication;
i. Intended to end the practice of secret treaties, as
well as enabling the UN Treaty Series, which
contains all registered treaties, to be
comprehensive as possible.
v. Application of treaties
1. In the absence of contrary intention, the treaty will not operate
retroactively so that its provisions will not bind a party as
regards any facts, act or situations prior to the state’s
acceptance of the treaty.
2. Article 29: unless a different intention appears from the treaty
or is otherwise established, a treaty is binding upon each
party in respect to its entire territory.
a. But it is possible for a state to stipulate that an
international agreement will only apply to part of its
territory.
3. Third states
a. States which are not parties to the treaty
b. GR: international agreements bind only parties to them
c. Article 34: a treaty does not create either obligations or
rights for a third state without its consent
d. One major exception: where provisions of the treaty in
question have entered into customary law.
i. In such case, all states would have to be bound,
regardless of whether they had been parties to
the original treaty or not.
e. Article 35: an obligation may arise for a third state from
a term of a treaty if the parties to the treaty so intend
and if the third state expressly accepts that obligation
in writing.
vi. Treaty interpretation
1. 3 basic approaches:
a. Objective
i. reference on the actual text of the agreement
and emphasizes the analysis of the words used
b. Subjective:
i. intention of the parties adopting the agreement
as the solution to the ambiguous provisions
c. teleological
i. emphasizes the object and purpose of the treaty
as the most important backcloth against which
the meaning of a particular treaty provision

18
 should be measured.
2. Article 31(1): a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given the terms
of the treaty in their context and in light of its object and
purpose
3. The process of interpretation is a judicial function whose
purpose is to determine the precise meaning of a provision,
but which cannot change it.
4. Where the interpretation according the provisions of article 31
needs confirmation, recourse may be had to supplementary
means of interpretation under article 32.
a. Article 32: these means include preparatory works
(travaux preparatoires) of the treaty and the
circumstances of its conclusion and may be employed
to aid the process of interpretation.
5. But the International court has underlined that the
interpretation must above all be based upon the text of the
treaty.

G. Nationality and statelessness

1. See discussion under jurisdiction of states

H. State Responsibility
1. Doctrine of State Responsibility
i. Whenever one state commits an internationally unlawful act against
another state, international responsibility is established between the
two. A breach of an international obligation gives rise to a
requirement for reparation.
ii. Matters regarding the responsibility of states are necessarily serious
and it is well established that a party asserting a fact must prove it.
1. The international court has held that claims against a state
involving charges of exceptional gravity must be proved by
evidence that is fully conclusive.
iii. Nature of state responsibility
1. Essential characteristics of responsibility
a. The existence of an international legal obligation in
force between two particular states
b. That there has occurred an act or omission which
violates the obligation and which is imputable to the
state responsible
c. Loss or damage has resulted from the unlawful act or
omission
2. Responsibility is the necessary corollary of a right. All rights of
an international character involve international responsibility.
Responsibility results in the duty to make reparation if the
obligation in question is not met. (Spanish Zone of Morocco
case)
3. International Law Commission Articles on State
Responsibility
a. Article 1: every wrongful act of a state entails

19
 responsibility
b. Article 2: there is an internationally wrongful act of a
state when conduct consisting of an act or omission is
attributable to the state under international law and
constitutes a breach of an international obligation of
the state
c. Article 12: there is a breach of an international
obligation when an act of the state is not in conformity
with what is required of it by that obligation, regardless
of its origin or character.
i. A state assisting another state to commit an
internationally wrongful act will also be
responsible if it so acted with the knowledge of
the circumstances and where it be wrongful if
committed by the state.
4. State responsibility may co-exist with individual responsibility.
They are not mutually exclusive.
5. Contending theories as to whether it is necessary to show
some fault or intention on the part of officials concerned for
responsibility to attach
a. Principle of Objective Responsibility (“Risk Theory”)
i. Maintains that liability of the state is strict; once
an unlawful act takes place, which has caused
injury and which has been committed by an
agent of the state, state will be responsible in
international law to the state suffering the
damage irrespective of good faith or bad faith.
b. Principle of Subjective Responsibility (“Fault Theory”)
i. Emphasizes that an element of intentional
(dolus) or negligent (culpa) conduct on the part
of the person concerned is necessary before his
state can be rendered liable for any injury
caused.
6. Imputability
a. Imposing upon the state absolute liability wherever an
official involved encourages a state to exercise greater
control over its various departments and
representatives.
b. The doctrine depends on the link that exists between
the state and the person or persons actually
committing the unlawful act or omission.
c. Imputability is the legal fiction which assimilates the
actions or omissions of state officials to the state itself
and which renders the state liable for damage resulting
to the property or person of an alien.
d. Article 4, ILC Articles: conduct of any state organ shall
be considered as an act of the state concerned under
international law where the organ exercises legislative,
executive, judicial or any other function, whatever
position it holds in the organization of the state and

20
 whatever its character as an organ of the central
government or of a territorial unit of a state.
e. Article 5, ILC Articles: conduct of a person or of an
entity not an organ of the state under article 4, but
which is empowered by law of that state to exercise
elements of governmental authority shall be considered
an act of the state under international law, provided the
person or entity is acting in that capacity in the
particular instance.
f. Article 6, ILC Articles: the conduct of an organ placed at
the disposal of a state by another state shall be
considered an act of the former state under
international law, if that organ was acting in the
exercise of elements of the governmental authority of
the former state.
7. Ultra vires acts
a. An unlawful act may be imputed to the state even
where it was beyond the legal capacity of the official
involved.
b. Article 7, ILC Articles: the conduct of an organ or of a
person or entity empowered to exercise elements of
governmental authority shall be considered an act of
the state under international law, if acting in that
capacity, even if it exceeds its authority or contravenes
instructions.
c. Article 8, ILC Articles: conduct of a person or group of
persons shall be considered act of the state under
international law if the person or group is in fact acting
on the instructions of, or under the direction or control
of, that state carrying out the conduct.
i. General overall control would have been
insufficient to ground responsibility
1. Nicaragua case: it would in principle have
to be proved that the state had effective
control of the military or paramilitary
operation in course of which the alleged
violations were committed;
8. Circumstances precluding wrongfulness
a. Where a state consents to an act by another state which
would otherwise constitute an unlawful act,
wrongfulness is precluded provided that the act is
within the limits of the consent given.
b. Wrongfulness is also precluded where the act
constitutes a lawful measure of self-defense, taken in
conformity with the UN Charter, i.e. principles relating
to human rights and humanitarian law have to be
respected.
c. Article 22, ILC Articles: wrongfulness of an act is
precluded if and to the extent that the act constitutes a
countermeasure.

21
 i. Lawful countermeasures must be in response to
a prior wrongful act and taken in light of a
refusal to remedy it, directed against the state
committing the wrongful act and proportionate.
ii. Article 49, ILC Articles: an injured state may only
take countermeasures against a state
responsible for the wrongful act in order to
induce the latter to comply with the obligation
consequent upon the wrongful act.
iii. Article 50, ILC Articles: countermeasures shall
not affect the obligation to refrain from the
threat or use of force embodied by the UN
Charter, obligations for the protection of human
rights, obligations of a humanitarian character
prohibiting reprisals, and other obligations of jus
cogens.
iv. Article 51, ILC Articles: emphasizes the
requirement of proportionality, noting that
countermeasures must be commensurate with
the injury suffered, taking into account the
gravity of the internationally wrongful act and
the rights in question.
v. Countermeasures shall terminate as soon as the
responsible state complies with its obligation.
9. Invocation of state responsibility
a. Article 42, ILC Articles: a state is entitled as an injured
state to invoke responsibility of another state if the
obligation breached is owed to that state individually or
to a group of states, including the state or the
international community as a whole, and the breach of
the obligation specially affects that state or is of such
character as radically to change the position of other
states to which the obligation is owed with respect to
the further performance of the obligation.
b. Responsibility may not be invoked if the injured stated
validly waived the claim or is to be considered as
having, by reason of its conduct, validly acquiesced in
the lapse of the claim.
c. Where several states are injured by the same wrongful
act, each state may separately invoke responsibility,
and where several states are responsible, the
responsibility of each may be invoked.
d. Article 48, ILC Articles: a state other than an injured
state may invoke the responsibility of another state if
either the obligation is owed to a group of states
including the state, and is established for the
protection of collective interest of the group, or the
obligation breached is owed to the international
community as a whole
i. In such cases, cessation of the wrongful act and

22
 assurances of non-repetition may be claimed, as
well as reparation.
10. Consequences of internationally wrongful acts
a. Cessation
i. State responsible for the internationally wrongful
act is under an obligation to cease the act, if it is
continuing, and to offer appropriate assurances
and guarantees of non-repetition if
circumstances so require.
b. Reparation
i. Remedying the breach of an international
obligation
ii. Reparation must, as far as possible, wipe out all
consequences of the illegal act and re-establish
the situation which would, in all probability have
existed if the act had not been committed.
(Chorzow Factory Case, ICJ)
iii. Article 31, ILC Articles: responsible state is under
an obligation to make full reparation of the
injury caused by the internationally wrongful act
and that injury includes any damage, whether
material or moral, caused by the internationally
wrongful act.
iv. Article 34, ILC Articles: full reparation for the
injury caused by the IWA shall take the form of
restitution, compensation, satisfaction, either
singly or in combination.
v. Article 35, ILC Articles: provides for restitution
as long as and to the extent that it is not
materially impossible and does not involve a
burden out of proportion to the benefit deriving
from the restitution instead of compensation
vi. Article 36, ILC Articles: in so far as damage
caused by the IWA is not made good by
restitution, the state responsible is under an
obligation to give compensation
1. Compensation is usually assessed on the
basis of the FMV of the property lost,
although the method used to calculate
this may depend on the type of property.
2. Damage includes both material and non-
material
a. Monetary compensation may be
thus paid for individual pain and
suffering and insults.
11. Exhaustion of local remedies
a. Article 44, ILC Articles: responsibility of another state
may not be invoked if the claim is one to which the rule
of exhaustion of local remedies applies and any
available and effective local remedy has not been

23
 exhausted.
i. This requirement applies only to available
effective remedies; it is not sufficient to dismiss
a claim merely because the person claiming had
not taken the matter to appeal, where the appeal
would not have affected the basic outcome of
the case.

I. Jurisdiction of States
1. Territoriality principle
i. Basis: sovereignty
ii. All crimes committed or alleged to have been committed within the
territorial jurisdiction of a state may come before the municipal
courts and the accused if convicted may be sentenced.
iii. Courts of a state have jurisdiction with regard to events that have
occurred or are occurring in its territory.
iv. This is the principal ground for the exercise of criminal jurisdiction.
2. Nationality principle and statelessness
i. The link connecting the state and the people in its territory
ii. By virtue of nationality, a person becomes entitled to a series of
rights.
iii. It determines the benefits to which persons may be entitled and the
obligations which they must perform.
iv. Generally, international law leaves the conditions for the grant of
nationality to the domestic jurisdiction of states.
v. Acquisition of nationality
1. Jus sanguinis
a. By descent from parents who are nationals
2. Jus soli
a. By virtue of being born within the territory of the state
3. Derivative
a. Wives of nationals
i. Note: Convention on the nationality of Married
Women, 1957, provides that contracting states
accept that the marriage of one of their nationals
to an alien shall not automatically affect the
wife’s nationality, although the wife may acquire
her husband’s nationality by special procedures
should she so wish
ii. Article 9 of the Convention on the Elimination of
All Forms of Discrimination Against Women,
1979, provides that state parties shall grant
women equal rights with men to acquire, change
or retain their nationality and that in particular
neither marriage to an alien nor change of
nationality of her husband during the marriage
shall automatically change the nationality of the
wife, render her stateless or force upon her the
nationality of the husband.
b. Children

24
 i. Note: Article 24(3) of the ICCPR, and reiterated in
Article 7 of the Convention on the Rights of the
Child provide that every child has the right to
acquire a nationality.
4. By naturalization
a. Usually involves a minimum period of residence; varies
from state to state.
3. Protective principle
i. This principle provides that states may exercise jurisdiction over
aliens who have committed an act abroad which is deemed
prejudicial to the security of the particular state concerned;
ii. It is justifiable on the basis of protection of the state’s vital interests,
since aliens might not be committing an offense under the law of the
country where he is residing and extradition might be refused if it
encompassed political offenses.
iii. It exists partly in view of the insufficiency of municipal laws as far as
offenses against the security and integrity of foreign states are
concerned.
4. Universality principle
i. Under this principle, each and every state has jurisdiction to try
particular offenses
ii. This is the competence of a state to prosecute alleged offenders and
to punish them if convicted, irrespective of the place of the
commission of the crime and regardless of any link of active or
passive nationality or other grounds of jurisdiction recognized by
international law.
iii. The basis for this is that the crimes involved are regarded as
particularly offensive to the international community as a whole.
iv. Two categories:
1. Piracy
2. War crimes, crimes against peace, and humanity
v. US Alien Tort Claims Act
1. Established original district court jurisdiction over all causes
where an alien sues for a tort committed in violation of the
law of nations or a treaty of the United States.
2. US citizens could not sue for violations of the law of nations
under this act.
5. Passive personality principle
i. Under this principle, a state may claim to try an individual for
offenses committed abroad which have affected or will affect
nationals of a state.
6. Conflicts of jurisdiction
i. Principle of domestic jurisdiction
1. While a state is supreme internally, that is within its own
territorial frontiers, it must not intervene in the domestic
affairs of another nation.
a. This duty of non-intervention within the domestic
jurisdiction of states provides for the shielding of
certain state activities from the regulation of
international law.

25
 ii. Extraterritoriality
1. States assume jurisdiction outside their territory on the
ground that the behavior of a party is producing “effects”
within its territory
2. US v Aluminum Co. of America: any state may impose
liabilities even upon persons not within its allegiance, for
conduct outside its borders that has consequences within its
borders which the state reprehends.
a. There must be intention and effects must be
substantial and exercise of jurisdiction is reasonable

J. Treatment of aliens
1. Extradition
i. Fundamental principles
1. Sec. 2(a), PD 1069: Removal of an accused from the
Philippines 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 any 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.
2. Enables one state to hand over to another state suspected or
convicted criminals who have fled to the territory of the
former.
3. Based upon bilateral treaty law and does not exists as an
obligation upon states in customary law
4. In general, offenses political in character have been excluded,
but this would not cover terrorist activities.
ii. Procedure
1. Nature of proceedings
a. Summary
2. PD 1069; Philippine Extradition Law
a. Sec. 4: Request
i. Any foreign state or government with which the
Republic of the Philippines has entered into
extradition treaty or convention, only when the
relevant treaty or convention, remains in force,
may request for the extradition of any accused
who is or suspected of being in the territorial
jurisdiction of the Philippines.
ii. The request shall be made by the Foreign
Diplomat of the requesting state or government,
addressed to the Secretary of Foreign Affairs,
accompanied by:
1. Original or authentic copy of: decision or
sentence imposed upon accused; or
criminal charge or warrant
2. Recital of acts for which extradition is
requested

26
 3. Text of applicable law or a statement of
contents of said law, and designation of
the offense
4. Such other documents, or info in support
of the request.
b. Referral of request
i. DFA Secretary to forward the request together
with the related documents to the Secretary of
Justice, who shall immediately designate and
authorize an attorney in his office to take charge
of these case.
c. Filing of petition
i. attorney so designated shall file a written
petition with the proper Court of First Instance of
the province or city having jurisdiction of the
place, with a prayer that the court take the
request under consideration and shall attach to
the petition all related documents.
d. Issuance of summons
i. presiding judge of the court shall, as soon as
practicable, summon the accused to appear and
to answer the petition on the day and hour fixed
in the order.
e. Temporary arrest
i. We may issue a warrant for the immediate arrest
of the accused which may be served any where
within the Philippines if it appears to the
presiding judge that the immediate arrest and
temporary detention of the accused will best
serve the ends of justice.
f. Hearing
g. Decision
i. Upon conclusion of the hearing, the court shall
render a decision granting the extradition, and
giving his reasons therefor upon showing of the
existence of a prima facie case. Otherwise, it
shall dismiss the petition.
h. Surrender of accused
i. After the decision of the court in an extradition
case has become final and executory, the
accused shall be placed at the disposal of the
authorities of the requesting state or
government, at a time and place to be
determined by the Secretary of Foreign Affairs,
after consultation with the foreign diplomat of
the requesting state or government
iii. Distinguished from deportation

K. International Human Rights Law

1. International Bill of Human Rights

27
 i. Universal Declaration of Human Rights (UDHR)
1. Cornerstone of UN activity; adopted by the UN General
Assembly on December 10, 1948
2. Not intended as a legally binding document as such, but a
common standard of achievement for all peoples and nations.
3. Articles
a. Article 3: Everyone has the right to life, liberty and
security of person.
b. Article 4: No one shall be held in slavery or
servitude; slavery and the slave trade shall be
prohibited in all their forms.
c. Article 5: No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment.
d. Article 6: Everyone has the right to recognition
everywhere as a person before the law.
e. Article 7: All are equal before the law and are
entitled without any discrimination to equal
protection of the law. All are entitled to equal
protection against any discrimination in violation of this
Declaration and against any incitement to such
discrimination.
f. Article 8: Everyone 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.
g. Article 9: No one shall be subjected to arbitrary
arrest, detention or exile.
h. Article 10: Everyone is entitled in full equality to a
fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him.
i. Article 12: No one shall be subjected to arbitrary
interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection of
the law against such interference or attacks.
j. Article 13: (1) Everyone has the right to freedom of
movement and residence within the borders of each
state.
(2) Everyone has the right to leave any country,
including his own, and to return to his country.
k. Article 14: (1) Everyone has the right to seek and to
enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of
prosecutions genuinely arising from non-political
crimes or from acts contrary to the purposes and
principles of the United Nations.
l. Article 15: (1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality

28
 nor denied the right to change his nationality.
m. Article 18: Everyone has the right to freedom of
thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom,
either alone or in community with others and in public
or private, to manifest his religion or belief in teaching,
practice, worship and observance.
n. Article 19: Everyone has the right to freedom of
opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive
and impart information and ideas through any media
and regardless of frontiers.
o. Article 20: (1) Everyone has the right to freedom of
peaceful assembly and association.
(2) No one may be compelled to belong to an
association.
p. Article 23: (1) Everyone has the right to work, to free
choice of employment, to just and favourable
conditions of work and to protection against
unemployment.
(2) Everyone, without any discrimination, has the right
to equal pay for equal work.
(3) Everyone who works has the right to just and
favourable remuneration ensuring for himself and his
family an existence worthy of human dignity, and
supplemented, if necessary, by other means of social
protection.
(4) Everyone has the right to form and to join trade
unions for the protection of his interests.
q. Article 25: (1) Everyone has the right to a standard of
living adequate for the health and well-being of
himself and of his family, including food, clothing,
housing and medical care and necessary social services,
and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack
of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special
care and assistance. All children, whether born in or out
of wedlock, shall enjoy the same social protection.
r. Article 26: (1) Everyone has the right to education.
Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be
compulsory. Technical and professional education shall
be made generally available and higher education shall
be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development
of the human personality and to the strengthening of
respect for human rights and fundamental freedoms. It
shall promote understanding, tolerance and friendship
among all nations, racial or religious groups, and shall

29
 further the activities of the United Nations for the
maintenance of peace.
(3) Parents have a prior right to choose the kind of
education that shall be given to their children.
ii. International Covenant on Civil and Political Rights (ICCPR)
1. obligates countries that have ratified the treaty to protect and
preserve basic human rights, such as:
a. the right to life and human dignity;
b. equality before the law;
c. freedom of speech, assembly, and association;
d. religious freedom and privacy;
e. freedom from torture, ill-treatment, and arbitrary
detention;
f. gender equality;
g. the right to a fair trial; and
h. minority rights.
iii. International Covenant on Economic, Social and Cultural Rights
(ICESCR)
1. Adopted in 1966; entry into force, 1976
2. Core provisions:
a. Article 2: each state party undertakes to take steps to
the maximum of its available resources with a view to
achieving progressively the full realization of the
rights recognized in the present covenant
i. An evolving programme is envisaged depending
upon the goodwill and resources of states rather
than an immediate binding legal obligation with
regard to the rights in question
b. Article 1: self-determination
c. Article 6 and 7: right to work
d. Article 9: right to social security
e. Article 11: adequate standard of living
f. Article 13: education
g. Article 15: right to take part in cultural life and enjoy
benefits of scientific progress and its application

L. International Humanitarian Law and neutrality

1. Magallona lecture on International Humanitarian Law
i. the body of international law that regulates the conduct of armed
conflict and seeks to limit its effects.
ii. Advisory Opinion of the ICJ on the legality of threat of the use of
nuclear weapons
1. Cardinal principles of IHL
a. Protection of civilian population and objects
b. Establishes distinction between combatants and non-
combatants
c. States must never make civilian object of attack and
never use weapons incapable of distinguishing between
civilians and military objects
d. It is prohibited to cause unnecessary suffering to

30
 combatants
e. States do not have unlimited freedom of choice in the
means or use of their weapons
i. Some principles on IHL
a. System of law governing armed conflicts are set out in the 4
Geneva Conventions (GC)
b. Armed conflict
i. Article 2 (common to all 4 GCs) = international armed
conflict
1. Applies to all cases of armed conflicts between
two or more state parties whether there exist a
declaration of war or not
ii. Article 3 (common to all 4 GCs) = non-international
armed conflict or internal armed conflict
1. Pertains to non-international armed conflict =
occurs only within the territory of one
contracting party = between government and
insurgent forces
c. For IHL to apply, it is not pertinent to determine motive of
parties nor is it concerned whether the armed conflict is
attended with legality or not; it is sufficient that there are
victims of the armed conflict.
d. IHL = embodied in the 4 GCs and additional protocols
i. Geneva Conventions
1. Convention (I) for the Amelioration of the
Condition of the Wounded and Sick in Armed
Forces in the Field. Geneva, 12 August 1949.
2. Convention (II) for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea. Geneva, 12
August 1949.
3. Convention (III) relative to the Treatment of
Prisoners of War. Geneva, 12 August 1949.
4. Convention (IV) relative to the Protection of
Civilian Persons in Time of War. Geneva, 12
August 1949.
ii. Protocols
1. Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the
Protection of Victims of International Armed
Conflicts (Protocol I), 8 June 1977.
2. Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the
Protection of Victims of Non-International
Armed Conflicts (Protocol II), 8 June 1977.
3. Protocol additional to the Geneva Conventions
of 12 August 1949, and relating to the
Adoption of an Additional Distinctive Emblem
(Protocol III), 8 December 2005
e. All 4 GCs are applicable to international armed conflicts,

31
 except common article 3, which applies to non-international
armed conflict
f. Norms and principle of IHL have become customary
international laws, therefore binding to all states, whether
parties to the GCs or not; however the additional protocols
are conventional rules and treaties therefore binding only to
parties
g. Memorize Marten's clause:
i. Protocol I: "in cases not covered by this protocol (I) or
by any other international agreements, civilians and
combatants remain under the protection and
authority of international law derived from
established customs from the principles of humanity
and dictates of public conscience."
ii. " Until a more complete code of the laws of war is
issued, the High Contracting Parties think it right to
declare that in cases not included in the Regulations
adopted by them, populations and belligerents remain
under the protection and empire of the principles of
international law, as they result from the usages
established between civilized nations, from the laws
of humanity and the requirements of the public
conscience. " [preamble to the 1899 Hague
Convention (II)]
h. Obligations under Common Article 3
i. All persons taking active part in armed conflicts and
hostilities, the following are prohibited acts, at any
time or place:
1. Violence to life and person, murder of all
kinds, cruel treatment and torture
2. Taking of hostages
3. Outrages in personal dignity, in particular,
degrading treatment, e.g. Japanese against
"comfort women"
4. Carrying out executions without judicial
judgment
i. Hors de combat (literally, "outside the fight")
i. A person is HDC if:
1. He is in the power of the adverse party in
conflict
2. He expresses intent to surrender
3. He has been rendered unconscious by wounds
or sickness, therefore incapable of defending
himself
4. PROVIDED that in any of these cases he does
not perform any hostile acts or does not
attempt to escape.
j. Does IHL apply to terrorist acts?
i. No, unless they fall under the classification of armed
conflicts under the 4 GCs

32
 M. Law of the Sea
1. Baselines
i. The width defined from the low water mark around the coasts of the
state.
ii. The normal baseline, from which the territorial sea is measured, is
the low-water mark, i.e. the line on the shore reached by the sea at
low tide.
iii. Straight baseline method
1. Applied only when:
a. In case of a deeply indented coastline; or
b. If there is fringe of islands along the coast
2. A straight line is drawn across the sea, from headland to
headland or from island to island, as the case maybe to form
the baseline.
2. Archipelagic states
i. Archipelago: a group of islands, including parts of islands,
interconnecting waters and other national features which are closely
interrelated that such group form an intrinsic, geographical,
economic, and political entity or which historically have been
regarded as such.
ii. Archipelagic state: a state constituted widely by one or more
archipelagos and may include other islands
iii. Straight archipelagic baselines
1. This is from which the breadth of the territorial sea is
measured
2. Baselines of an archipelago are straight lines joining the
outermost points of the outermost islands, provided that
within such baselines are included the main islands and an
area in which the ratio of the water area to the land area is not
more than 9 to 1.
iv. Archipelagic waters
1. Archipelagic state has sovereign right over all waters enclosed
by the archipelagic baselines, regardless of their depth or
their distance from the coast.
2. Within the archipelagic waters, the archipelagic state may
draw closing lines for the delimitation of internal waters
3. All states enjoy right of innocent passage through archipelagic
waters; archipelagic state may suspend, without any
discrimination, ROIP of foreign ships temporarily for the
protection of its security, to take effect after due publication
v. Archipelagic sea lanes passage
1. An archipelagic state can designate sea lanes and air routes
suitable for the continuous and expeditious passage of
foreign ships and aircraft through or over its archipelagic
waters and adjacent territorial sea.
2. Such passage must be for the sole purpose of continuous,
expeditious and unobstructed transit between one part of the
high seas or an EEZ and another part of the high seas or an
EEZ.

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 3. In the absence of such designated sea lanes, the right of
archipelagic sea lanes passage may be exercised through the
routes normally used for navigation.
3. Internal waters
i. Are deemed to be such parts of the sea as are not either the high
seas or relevant zones or the territorial sea and are accordingly
classed as appertaining to the land territory of the coastal state
ii. Are to be found on the landward side of the baselines from which the
width of the territorial and other zones is measured, and are
assimilated with the territory of the state
iii. There does not exist any right of innocent passage from which the
shipping of other states may benefit.
iv. In general, a coastal state may exercise its jurisdiction over foreign
ships within its internal waters to enforce its laws
4. Territorial sea
i. Portion of the open sea adjacent to the shores of a state, over which
the state exercises jurisdictional control
ii. The state has the right to establish the breadth of its territorial sea to
a limit not exceeding 12 nautical miles, measured from the baseline.
iii. Right of innocent passage
1. Coastal state’s sovereignty over its territorial sea is subject to
a very important limitation – foreign ships have a right of
innocent passage through the territorial sea
2. Passage is innocent as long as it is not prejudicial to the
peace, good order or security of the coastal state.
5. Contiguous zones
i. Zone in which coastal state may exercise control as is necessary:
1. To prevent infringement of its customs, immigration, fiscal or
sanitary laws within its territory or its territorial sea;
2. To punish such infringement
ii. May not extend more than 24 nautical miles from baseline from
which the territorial sea is measured.
6. Exclusive Economic Zone (EEZ)
i. Sovereign rights over all economic resources of the sea, seabed,
subsoil in all area extending not more than 200 nautical miles from
the baseline from which the territorial sea is measured.
7. Continental shelf
i. Comprises 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 margins, or
to a distance of 200 nautical miles from the baselines from which the
territorial sea is measured, if the edge of the continental margin
does not extend up to that distance
ii. The coastal state exercises over the continental shelf sovereign
rights for the purpose of exploring it and exploiting its natural
resources.
1. These rights are exclusive in the sense that if the coastal State
does not explore the continental shelf or exploit its natural
resources, no one else may undertake those activities without
its express consent.

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 iii. Extended continental shelf
8. International Tribunal for the Law of the Sea

N. Madrid Protocol and the Paris Convention for the Protection of Intellectual Property

O. International Environmental Law (Magallona Lecture)

1. Principle 21 of the Stockholm Declaration
i. States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their
own resources pursuant to their own environmental policies, and the
responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction
ii. Some important principles
1. Principle of common but differentiated responsibility
a. From Rio Declaration:
i. The Rio Declaration states: “In view of the
different contributions to global environmental
degradation, States have common but
differentiated responsibilities. The developed
countries acknowledge the responsibility that
they bear in the international pursuit of
sustainable development in view of the pressures
their societies place on the global environment
and of the technologies and financial resources
they command.”
ii. The implication of responsibility is based on
equity; all states have the obligation to protect
the environment but based on their
responsibility in the degradation of their
environment
2. Precautionary principle
a. Where there are threats of severe irreversible damage,
lack of scientific certainty shall not be used as reason
for postponing effective measures in preventing
environmental degradation.
3. Sustainable development
a. UN Commission
i. "development which meets the needs of current
generations without compromising the ability of
future generations to meet their own needs"
b. lies in its sustenance in embodying the principle of
inter-generational equity; that the environment is not
only for the development of the present generation but
for the sustenance of the future generation

P. International Economic Law

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