TABLE OF CONTENTS

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Chapter 1

<mNERAL PUINCIPLR8

Nature and Scope..................................................................................... 1

Divisions oflnt:ematio11al Law ............................................................. . 2
Distinctions with Municipal Law .......................................................... 2
Relation to Municipal Law ................ ... .. ..... ....... ... ... .. .. ..... ... ... .. .... ......... 5
Constitution v. Treaty.............................................................................. 10
Basis oflnternational Law ............. ........ ... ............... ...... .. ....................... 12
Sanctions ofintemational Law .............................................................. 14
Enforcement oflnternational Law ........ ................................................. 16
Fm1ctions of lnt:emational Law ...... ............ ... .... .. .. .. ....... ..... .. ........... ...... 18
Distinctions with Other Concepts........................................................... 18
Frei;ent 8tate oflntemational Law .. ...... .. . .. ......... ..... .. ...... ...... 19

Chapter· 2

~OURCES OF INTERN..\l'IONAL LAW

Treaties .,...............
21
Custo~
22
General Principles of Law 24
Secondary Sources
25
Chapter 3

THE INTE'RNATlONAL COMMUNITY

Subject and Object Distinguished 27

Development of the International Conununity 28
States
29

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 TABJ,1!; OF C ONTENTS TABLE OF CoN'I'EN'l'S

Page
/'age
(a) People 30 (e) The Tnternation9.1. Cr:u.nt 0f Justice 68
(b) Territory 30 (f) n,.. 1-:Pf'rPt.A,·iAI'. 70
(c) Goverrunent ............................................................................... . 31
(d) Sovereignty 31 Chapt~r 5
Capacity ofStates ..... 31
Classification of States 32 TJ.JF. l:ONt:EPT OF THF. $TATV.
Independent States 33
(a) Simple States 33 Creation of the State ...................... .......................................................... 72
Cb) Composite States 33 The Principle of State Continuity............................................................ 73
(1) Real Union 33 Extinction of the State .............................. ........... .................................... 74
(2) Federal Union 34 Succession ofStates ................................................................................. 75
(3) Confederation 34 Consequences ofState Succession ......... ...... ..................... ........ .............. 75
Personal Union
(4) 35 Succession of Governments .. ....... .... ......... ........... .................. ....... ....... 78
Inrorporate Union
(5) 35
N eutralized States 35 Chapter 6
Dependent States 36
The United Nations. 37 RECOGNITION
The Vatican City 38
Colonies and Dependencies 39 Objects of Recognition 81
Mandates and Trust Territories 40 Kinds of Recognition 81
Belligerent Communities 41 Recognition of States 83
Internationl:'.l .!\,hninist.t·ative Bodies 42 Recognition of Governments 84
fodivid'.U:11~ . 42 Effects of Recognition of States and Governments 87
Oetjen v. Central Leather Co. 8£1
Chapter & Recognition of Belligerency 89
l:ousequeni:es of Rero~iti.on of Belligm·ency ~J
TW. TJNrTED NATIONS
r.h,.rt.".. ;
The U nited Nations 45
The U.N. Charter 48 THE .t:UGHT OF EXISTENCE AND SELF DEF'ENSE
The Preamble to the Charter 49
Purposes ... 51 Requisites of Rights 93
Principles 52 The Cuban Missile Crisis 95
Membership 55 Regional Arrangements 96
Suspension of Members 58 The Balance of Power 97
Expulsion of Members ·····~···· .......... 58 Aggression Defined 98
Withdrawal of Members 59
O~ns of the United N1:ttfons ....... .. 60 Chapt-er 8
(a) The General Assembly .. 60
(b) The Security Council 62 THE RIGHT OF INDEPENDENCE
(c) The Economic and Social Council 65
Idealoflndependence 101 , ,
(d) The Trusteeship Cow1cil 67
Nature oflndependence 102 · '
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"--1111
TABJ.J,; or C')1;'fEtITS
1
T,\BtE OF Co~'mms
Page Page
103 Maritime and Fluvial Jurisdiction 130
Intetvention
1(.lf. The Contiguous Zone 132
The Drago Doctrine
The Continental Shelf 133
Chapte1· 9 The Patrimonial Sea 134
The Open Seas 134
THE RIGHT 01< RQTJAJ .TTY The Lotus Case 135
Ae1ial Jurisdiction 137
106 Outer Space 138
Essence of Equality .
Legal Equality v. Factual Inequality ....... 107 Other Tenitori~s 13~

C'hapt~,· 10 Chapter 12

TERRITORY THE RIGHT OF' LEGA'l'ION

Acquisition and Loss ofTenitory 109 Agents ofDiplpmatic Intercourse 141

Discovery and Occupation 110 of
The Head State 142
(a) Requisites 110 The Foreign Secretary 142
(b) Dereliction ..... 112 Diplomatic Envoys 143
113 The Diplomatic Corps 144
Prescription
Cession 113 Appointment of Envoys 145
Subjugation
114 Commencement of the Diplomatic Mission 146
Accretion
114 Diplomatic Functions 147
r.nmpo11P.nts ofTenitory .. 115 Conduct of Diplomatic Mission L48
(a) The Ten·estrial Domain 115 Diplomatic Immnnities and Privileges 148
(b) The Ma.iitime and Fluvial Domain 115 (a) Personal Inviolability 149
(1) Rivers 116 (b) Immunity from Jmisdiction 150
(2) Bays 117 (c) Inviolability of Diplomatic Premises 154
(3) The Territorial Sea 117 (d) Inviolability of Archives 155
(4) The UN Conferences on the Law of the Sea 118 (e) I.nviolability of Communication 156
(5) The Philippine Territorial Sea ... ............. . 119 (f) Exemption from Testimonial Duties 156
(6) The Archipelago Doctrine 120 (g) Exemption from Taxation 157
(7) Basis of Article I of the 1987 Constitution 121 (h) Other Privileges 157
(8) Methods of Defining th~ Te1,:it.i:1Ii8l Sea 122 The Diplomati<: 8uit.e or Retinue 158
(c) '!'he Aerial Domain 123 Duration 158
Termination of Diplomati-:! Mission 159
Chapter 11
Chapter rn
.nmISDICTION
CONSULS
Personal Jurisdiction 125
Territorial Jurisdiction 127 Consuls 161
Land Jurisdiction 129 Kinds and Grades 162

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T11R1.~ ni. (:nm1-:1ns Tfl.BLE :F Cc>i'l'l'El','T'S
1

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Appointment 162 The International Standard of Justice 194
Functions 163 Failure of Protection 01· Redress 195
Immunities and Privileges 164 Exhaustion of Local Remedies 197
TE'.rmination of Consular Mission 166 Resort to Diplomatic Protection 198
Enforcement of Claim 199
Chapter 14 Avoidance of State Responsihil.ity 200
Exclusion of Aliens 201
TREATIES Extradition 202
Basis of Extradition 202
FtU1ctions of Treaties 168 Fundamental Principles of Extradition 203
Essential Requisites of a Valid Treaty 169 Procedure of Extradition 205
(a) Tl'eaty-making Capacity 169
(b) Authorized Representatives 169 Chapter 17
(c) Freedom of Consent 170
(d) Lawful Subject-Matter 171 SETTLEMENT OF INTERNATIONAL DISPUTES
(e) Compliance with Constitutional Processes 172
Treaty-making Process 172 Setj;lement of International Disputes 207
Binding Effect of Treaties 175 Methods of Settling Disputes 208
Observance of Treaties 176 Amicable Methods 209
Treaty Interpretation 179 Hostile Methods 213
Termination of Treaties 180 The United Nations 215

Chapter 15 Chapter 18

NATIONALITY AND STATELESSNESS WAR

Nationality and Statelessness ................................................................ 182 War 221

Acquisition of Nationality ........................................................................ 183 Outlawry of War 222
lvlultiple Nationality ................................................................................ 184 Laws of War ..... . 222
Loss of Nationality ................................................................................... 185 Commencement of War 224
Conflict of Nationality Laws ................................................................... 185 Effects of the Outbreak of War 224
Unit.ed States (Alexander Tellech) v. Austiia a.n,:l Hm:>.g"lry ............... 187 Combamnts and Non-combatants 226
The Canevaro Case .................................................................. ................ 187 Conduct of the Hostilities 227
The Nottebeh".".' 0"'""' . . ... .... ...... ......................................... 188 Kinds '.'.lfWa1fare ........ . . 229
Statelessness ............................................................................................. 189 Belligerent Occupation 230
Postliminium 233
Chapter 16 Non-Hostile Intercourse 234
Suspension of Hostilities 235
TREATMENT OF ALIENS Termination of War 236
Aftermath of War 238
Treatment of Aliens .................... ............... .......... ..................................... 192
The Doctrine of State Respo~sibility ...................................................... 193
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TABLE '}F ('011.11 t:'.NT~

I'aE!e
Chaptet· 19

NRTJTRAl,ITY
lN.TERNA'fTON AT, Li\.\V
Neutrality................. ... ...................... ........................................ ........... ... 242
Neutrality and Neutralization................................................................. 243
Laws of Neutrality .................................................................................... 243
Relations of Belligerent States and Neutral States ............................. 243
Use ofNeutral Territories ....................................................................... 244 Chapter 1
Use ofNeutral Facilities and Services ..................................... ............. 246
Relations of Belligerent States v..ith Nationals of Neutral States ...... 248 GENERAL PRINCIPLES
Visit and Search ..................................................................... .............. .... 248
Contraband ................................................................................................ 249
Blockade ........................................ ............................................................ 252
Nature and Scope
Unneutral Service ....................................................................... ......... .... 253
Angary ....................................................................................................... 254
Termination of Neutrality ....................................................................... 255 THE EXPANDING SCOPE of international law has
modified its traditional concept as "a body of rules and
APPEND!~l?~ principles of action which are binding upon civilized states
~- in their relations with one another."1 Although this defini-
A-Charter of the United Nations ...................................................... 257
B-Statute of the International Court of Justice ................................. 294 tion is still widely accepted, it is now admitted that there
C-Vienna Convention on Diplomatic Relations ........................... ...... 313 are other entities besides 'states that are also governed in
D--Universal Declaration 0fH11m1:1n Right,;, ........................................ 333 va13ring degree by the law of nations. A notable example is
Refe~n,;es .. .... .. . ... ......... .. ... ... ..... ...... .... ...... 341 th~1.Jnited Nations. Another is thl individual hi•nself, who
--oOo--- has even been suggested as the real and only subject of
international law, on the ground that "all law is a regula-
tion of human conduct."2 In view of these, many writers
now agree with Schwarzenberger that-
T11t.P•·11::,ti,n11,I l':'w is the body of lP.giil rules which apply
between sovereign states and such other entities as have been
granted international pel'Sonality:

1
Briefly, 1.
2
Hans Kelsen, Theorie Generale due Droit International Pub-
lic, 1932, 148.
3
Schwarzenberger, 1.

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f "-l'J'k'l?ll.:A TION,l,l, Li\Vv'
'l.
As thus understood, the phrase "international law" is
obviously a misnomer in so far as it suggests that it relates
to the intercourse of nations rather than of states. Fur-
thermore, its restrictive import would exclude from its
operation those other international persons which, al-
though non-states, are directly assigned certain rights and
responsibilities m the international community. Never-
theless, the nomenclature has achieved practically univer-
i\lll
sal acceptance since it was first employ~d in 1870 by Jer-
emy Bentham in his Introduction to the Principles of Mor-
als and Legislation. It is now us8d interchangeablv 'Nith
anoth.P.Y familiar t~pn, "thP. la.w of nations.''.
Divisions oflnternatimrnl T,aw
The grand divisions of international law are the laws
of peace, the laws of war, and the laws of neutrality.
ThPii:if'WiilQb.·.i~~;~overn the normal relations of
states. When war bre~·h out between or among some of
them, the relations of these states cease to be regulated
under the laws of peace and come under the laws of war
for the duration of the hostilities. Those states not in-
volved in the war continue to be regulated under the laws
of peace in their relations inter se. However, their relations
with the belligerents, or those involved in the war, are
governed by the rn.ws of neutrality.
When the war ends and peace is restored, the rela-
tions of all the members of the family of nations will come
again under the l~wr;: of pP.ace, until another war b:rl?~ki::
Otlt.
Distinctions with Municipal Law
Most present-day legal analysis regards private in-
., : ,. · ternational law, so-called, or conflict of laws, as pertaining
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n,.-'" r''~ >1 PR.TNr.TFLF.S 3
to the municipal or private law of each state rather than
as a part of international law. While it has been suggested
4
in one oft-cited case that international law covers both
public and private international law, the consensus is that
only those precepts applicable to relations of international
persons inter se fall within the field of international law.
The monists do not share this opinion because they
believe in the oneness or unity of all law. To them, "the
main reason for the essential identity of the two spheres of
]aw is ... that some of the fundamental notions of Inter-
national Law cannot be comprehended without the as-
sumption of a superior legal order from which the various
systems of Municipal Law are, in a sense, derived by way
of delegation."5 In both spheres, they contend, law is es-
sentially a command binding upon the subjects independ-
ehtly of their will, and it is ultimately the conduct of indi-
.·~ duals which it regulates.
To the dualists, however, who believe in the dichot-
omy of the law, there are certain well-established differ-
epces between intemational law and municipal law.
In the first place, municipal law ;is issued by a politi-
cal superior for observance by tho~e under its authority
whereas~l;fif~tional law is not imposed upon but simply
adopted'by states as a common rule of action among them-
selves: As Oppenheim points out, "Whereas Mlmicipal
~aw! is a law of a sovereign over those subjected to his
sway, the'Lii,wiofNationsiis a law, not above, but between,
sovereign states and is, therefore, a weaker law.',6
Secondly, municipal lavv consists mainly of enact-
ments from the lawmaking authority of e:::ich !':ti3.te
wh":'rea8 1nternatim1al law is derived not from any par-
'Hilton v. Guyot, 159 U.S. 112,
~ Oppenheim-Laut~rpacht, 38,
i CL Minon, Conflict of Laws, 2·4,
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4 li:'l'l'ERNA'I'IONAL LAW
ticular legislation but from such sources as international
customs, international conventions and the general prin-
ciples oflaw.
A third distinction may be noted, viz, that municipal
law regulates the relations of individuals among them-
selves or with their own states whereas in~ rri1 tional law
applie.s to the relations inter se of states and"'other interna-
tional persons.
Accorqingly, and this makes the fourth difference,
violations of µi unicipal law are redressed through local
administrative and j udicial processes whereas questions of
mt~~ti2P.~~i:~w~;·are resolved through state-to-state
transactions ranging from peaceful methods like negotia-
tions and arbitration to the hostile arbitrament of force
like reprisals and even war.
Finally, breaches o~ 1nfApS!-(law generally entail
only individual responsibility whereas responsibility for
infractions o~p;~r.Jm~~vtt~~j~~\\';·~is usually collective in the
sense that it attaches directly to the state and not to its
nationals.
However, it is possible for a principle of municipal
law to become part of international law, as when the prin-
ciple is embodied in a treaty or convention, like the Hague
Conventions of J.899 and 1907 relating t.o personal status
and the Geneva Convention of 1930 on bills of exchange.
AJso, as observed by one writer, "the practice of states of
giving greater or less validity to the legislation of other
states under particular circumstances contains the ele-
ments of international law."7
7
.
4
.·
.,.
Fenwick, 245-246.
HH
GF.UETIAL Pnl?JCI!' l.f.S s
Rela tion to Municip al Law
It is a universally accepted postulate that, with or
without an express-declaration to this effect, states admit-
ted to the family of nations are bound by the rules pre-
scribed by it for the regulation of international inter-
course. This is an inevitable consequence of membership
in the international community. Conformably, it was held
8
in Ware v. Hylton that ''when the United States declared
their independence, they were bound to receive the law of
nations in its modern state of purity and refinement." This
same case declared that "the law of nations is a part of the
law of Great Britain." In the Paquete Habana Case,9 Jus-
tice Gray asserted categorically: "International law is a
part of our law and must be ascertained and administered
by the courts of justice of appropriate jurisdiction as oft.en
as qnestions of rights depending upon it are presented for
determination."
More explicit is the statement that "the law of na-
tions, although not specially adopted by the Constitution
or any municipal act, is essentially a part of the law of the
land. Its obligation commences and runs with the exis-
tence of a nation."10
~orne stl'l!°-88 havp seen fit to emphEt.siie their amena-
pility to this fllq,cfrine of incorporation, as it is called, by
affirming their recognition of the principles of interna-
!ional law in their constitutions. Among these are Austria,
Germany, Korea and the Philippines. Thus, in Article II,
Section 2, of our Constitution, it is provided that-
8
3 Wall, 199, 228 (U.S. 1796).
9
10
175 U.S. 677.
Attorney Gener al Ra ndolp's Opinion of June 26, 1792, 1 Ops.
Atty. Gen. 26, 27. r :
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 6 TN fErtNATIC'NAL LA\\;
The Philippines renounces wa.r as an instrument of na-
tional policy, a do pts the gener ally accepted ptinciples of inter-
national law as part of the law of t he land, and adheres to the
policy of peace, equality, justice, freedom, coopera tion and am-
ity with all nations.
Representing the minority view in this matter is the
doctrine of tran${ormatt'on1 which holds that the generally
accepted rules of international l.aw are not per se binding
upon the s tate but must first be embodied in legislation
enacted by the lawmaking body and so transformed into
municipal law. Only when so transformed will they be-
come bin~ing upon the state as part of its municipal law.
."
In Kl!_rcx!a u. Jqlaruloni,, t°t the Supreme Court de-
•'
r.J ~r.P.d as follows:
Petitioner argues that r espondent Military Commission
has no jurisdiction to try petitioner for acts com mitted in viola-
tion of the Hague Convention and the Geneva Convention be-
cause the Philippines is not a signa tory to the first and signed
the second only in 1947. lt cannot be denied that the rules and
regulations of the Hague and Geneva Conventions form part of
and are wholly based on the generally accepted principles of
international law. In fact, these rules and principles were ac-
cepted by the two belligerent nations, the United States and
Japan, who were signatories to the two Conventions. Such
rules and principles, therefore, fo rm part of the law of our na-
tion even if the Philippines was not a signatory to the conven-
tions embodying them, for our Constit ution has been deliber-
ately general and extensive in its s cope and is not r.onfined to
the recognition of rules and principles of international law as
containP.d in treaties to whi~h our go·:ernme nt m&.V l1iive been
or shall be a signat0ry
The above provision has expressly placed interna-
tional law in the same category as the other components of
Philippine law, such as the Civil Code, the Insurance Act
and the Local Government Code. Normally, such a situa-
1 II
~·: 42 O.G. 4282.
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n E!':ERAL I'RmcrrLES 7
tion would not create international complications inas-
much as it is not often tha t inconsistencies arise between
the principles of international law a nd the municipal law
of the local state. But this possibility cannot be completely
ruled out in view especially of the lack of care that may
attend the enactment of statutes by national legislatures
and the deliberately hostile policies that may inspire
them, particularly in ultra-nationalistic countries. Hence,
it is important to consider the criteria to be applied in
re~olving conflicts between international law and munici-
pal law as developed by the practice of states.
The l.ffl'ifilt.ule would be to attempt to reconcile the
apparent contradiction and thereby give effect, if possi-
ble, to both systems of law. For this' purpose, it should
be presumed that municipal law is always enacted by
each,~tate with d ue regard for and never in defiance of
the genera}J.t}..t fe~tee ~rinciples of intern~t~o~al law.
The c::1se o~Jfi.fim·fl.r,.q:!T.:·V. Valdez .T an Keh1 1s illustra-
tive of.this principle. Here it was contended that Gen-
eral MacArthur's P roclamation of October 23, 1944,
invalidated all judicial proceedings during the Japanese
belliger.ent occupation of the Philippines because the
edict declared null and void "all laws, regula tions and
pr~cesses of any other government than that of the
Commonwealth.'' IP H•jA~t.ing this Yiew. our Supr':'mP.
Cqw·t ·explained:
Ta.king into consideration the fact that according to a
w~J!.-1"TJO""' pri.n.. ipl.P. of i.nternati<:>M l. l..fil w, i:i.ll judgments a nd
judicial proceedings which are not of a political complexion of
.t he de facto government during the Japanese military re-
mained so after the occupied territory had come again into the
power of the titular sovereign, it should be presumed that it
A [was not and could not have been the intention of General
r MacArthur, in using the phrase 'processes of any other gov-
+
G.R. No. L-5, Sept. 17, 1945. ' ,
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ernment' in said proclamation, t,o refor to judicial proces"es, in
f violation of said principle of international law.
However, the solution cannot always be as simple as
this, for where the conflict is actual and not merely appar-
ent, there is no question that a categorical choice will have
to be made. Take, for example, an amendment to the con-
stitution of a state abolishing the right of property in ali-
ens within its jurisdiction. Decrees of confiscation pursu-
ant to this provision could arguably be valid under mu-
nicipal law but they would at the same time raise serious
international complications and provoke objections from
the states adversely affected. Under these circumstances,
which system oflaw should prevail?
From the international viewpoint, the problem would
not present much difficulty since international tribunals
follow the view that "to sustain or uphold the supremacy
of municipal law over international law could lead to in-
ternational anarchy and lawlessness, each state discard-
ing and repudiating such parts of international law as are
inconsistent with and inimical to its national interests,
ambitions and policies." 12 Accordingly, such tribunals have
invariably supported international law as against opposed
principles of municipal law.
Thus, it was held in a dispute between Great Britain
~~J¥.~&...~~iiJL4l;rthat "there could be no question th~t na·
tionaJ laws must yielrt to the law of nations if there was a
conflict." 13 In another case, it was argued that. a legislative
decree of Guatemala abrogating the concession of an
American national in that country was the constitutional
act of a sovereign state that could not be questioned by an
international tribunal. While declaring that the content.ion
:
2
Le fondement due droit international, 16 Recueil des cow·s
(1927), 2-3.
·~Hackworth, 34.
~- ( ~-
GENEit..4.L Prm ,c1PI.F.S 9
might be tenable from Lhe national viewpoint, the arbitra-
tor nevertheless held that "it is a settled principle of inter-
national law that a sovereign cannot be permitted to set
u p his own municipal law as a bar to a claim by a foreign
sovereign for a wrong done to the latter's subject."14
In fine, as Fenwick summarizes it, "international law f"
is binding upon the state as a corporate person, and nol
provision of the national constitution or act of the nationalI
1egislature or decree of the executive or judicial agencies!
can change the force of its provisions in so far as the legal\
!'elations of the state toward other states are concerned."15
By contrast, the attitude of national tribunals has
been rather indecisive, to say the least. In the case of The
Nereide,16 for instance, the Supreme Court of the United
States held that "it was bound by th e law of nations,
which is a part of the law of the land," but subsequently,
in The Over the Top, 11 the same court was to assert na-
tional pride with the pronouncement that "international
law is law only in so far as we adopt it and, like all com-
mon or statute law, it bends to the will of Congress."
Nor is this judici:::tl inconsistency limited to one fo-
rum, for it also marks the policy of courts from different
even if closely related jurisdict.ions. To illustr:::1.te, i.t was
held by-Lord Mansfield in 1'riquet v. Bath 18 that, "the law of
nations, in its full extent," was part of the law of England.
Obvi9-i1sly unimpressed by the ruling, a Scottish court
declared in upholding a municipal law: "In this court we
have nothing to do with question of whether the legisla-
14
United States (P.W. Shufeldt vdf. Guatemal a, Shufeldt
Claim, Dept. of Sta te Arb., Sec. 3, 851, 876-877 (1932)).
15
Fenwick, 89.
16
9 Cranch 388 (1815).
17
5 F 2d 838 (D. Conn. 1125).
18
Fenwick, Cases, 31.
~- ~
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I .
10 JNTERNATIONAI, LAW
ture has or has not done what foreign powers may con-
sider a usurpation in a question with them. Neither are
I'!
I11,
I'
we a tribunal sitting to decide whether a n act of the legis-
lature is ultra uires as in contravention of generally ac-
19
cepted principles of international law." And so the con-
flict goes, and the solution is not yet in sight.
Constitution v. 'freaty
Similar·observations may be made in connection with
cases involving conflicts between the constitution of a
state and a treaty duly entered into by it with other states.
Generally, the treaty is rejected in the local forum but is
upheld by international tribunals as a demandable obliga-
tion of the signatories under the maxim pacta sant ser-
iiii.niki:.
<!!-~~··...-•.-.·.
On the. one hand, it is provided in the Declaration
. the importation of rice from Burma and Vietnam without
A{(~e::E~ghts arid Duties of States, adopted by the Interna-
tional Law Commission on June 9, 1949, that "every State
h as the duty to carry out in good faith its obligations aris-
ing from t reaties or other sources of international law, and
it may not invoke provisions in its constitution or its laws
as an excuse for failure to perform this d uty." On the other
- hand, most constitutions contain provisions empowering
the judiciary to annul treaties a nd the legislature to su-
persede them with statutes, thereby establishing the pri-
macy of the local law over the international agreement.
The positiot1 of the Philippi11es regarding this matter
is clear enough. There can be no doubt as to the meaning
of our Constitution when it authorizes the Supreme Court
to decide, among others, all cases involving the constitu-
tionality of "any treaty, international or executive agree-
ment, law... "20
111
Mortensen v. Peters, Fenwick, Cases, 25 ..
'" Art. VIII, Sec. 5 (2).
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GF.~lEJ"l;\L PRJN8IPLJ£S 1l
In the case of Ichong u. Hernandez,21 the Retail Trade
Nationalization Law was challenged on the ground inter
c,lia that it violated the Treaty of Amity between the
Philippines and China, the United Nations Charter and
thP- Universal Declara tion 0f H 1Jman :Rights. The Supreme
Court., afw.r rejecting this assertion, made the followir1g
significant remarks:
But even assuming that the law infringes upon the said
treaty, the treaty is always subject to qualification or amend-
ment by a subsequent law, and the same may never curtail or
restrict the scope of the police power of the State.
_ . Equallt notew?rthy is the case of ;9?.nzqJ~"f;}!:
Hc.c.hangua, where 1t was shown that the President of the
Philippines had by executive agreements contracted for
first securing from the National Economic Council the
certif\caf".ion required by law that t.bere was a short.age of
the said cereal in the Philippines at the time. Notwith
&tanding that in international law treaties and executive
agreements are equally binding commitments of the con-
tracting states, our Supreme Court held in part:
Although the President may, under the American consti-
tutional system, enter into executive agreements without pre-
vious legislative authority, he may not, by executive agree-
ments, enter into a transaction which is prohibited by sta tutes
enacted prior thereto. He may not defeat legislative enact-
rp_ents by indirectly repealing the same through an executive
a greement providing for the very act prohibited by said laws.
As regards the question ofwhethe1· an international agreement
may be invalidated by the courts, $Uffice it to say t.ha.t the Con-
stitution authorize.!? the n ull.ification of a treaty not only when
it conflicts. with the Constitution but also when it runs counter
to an act of Congress.
11
22
G.R. No.'L-7995, May 31, 1957.
G.R. ~o: L-21897, Oct . 22, 1963.
.
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12 It-.i'ERNA'l'IONAL L>.W
Basis of International Law
As previously observed, international law does not
emanate from a supreme lawmaking authority for the
regulation of those subject to its control but is, on the con-
trary, voluntarily observed by an international community
which does not recognize any political superior among its
members. In view of this, it is pertinent to inquire into its
basis and to determine why it is recognized and obeyed as
a rule of action by the family of nations. What is it, in
other words, that gives binding force to international law?
, ture and the consent of states as the basis of international
According to the n'al u.'ralist school' of thought, the
foremost exponent of which was Samuel Pufendorf, the
basis of international law is the law of nature. This is de-
scribed as a "higher law" or "a rule of human conduct in-
dependent of positive enactment and even of special divine
revelation, and binding always and everywhere in view of
its intrinsic reasonableness."23 Under this theory, there is
a "natural and universal principle of 1ight and wrong,
independent of any mutual intercourse or compact," which
is supposed to be discovered and recognized by every indi-
vidual through the use of his reason and his conscience.
The consequence is that, since individuals compose the
state, whose will is but the result of the collective will of its
inhabitants, the state itself also becomes bound by the law
of vature. lnternationa.l law ~s thus viewed is therefore
not H hrn,• /:,qt,ween l)nt al:>oue ~ti:1tB~.
Opposed to this theory is that advocated by the Posi-
tivists, led by Richard Zouche, who contend that the bind-
ing force of international law is derived from the agreement
of sovereign states to be bound by it. It is not a law of sub-
ordination but of coordination. Under this school of
23
Pollock, Sources of International Law, 2 Col. L. Rev. 511-519.
l Bishop, 11. · '
.~ ! ! '
GEJ\'ER.AL PRIKCIPLES J.8
thought, a more "positive" identification with or acknowl-
edgment of the law is necessary to make it binding on the
~tates it purports to govern, so that any state withholding
its consent can disclaim any responsibility of observance.
Snch consent, it is asserted, is expressed in the case of
conventional law, implied in the case of customary law,
·~n.cl presumed in the case of the general principles oflaw.2~
The compromise position is taken by the Eclectics or
tl1-ei}rotians, the most famous of whom were Eme1ich de
}'ii.t~l:and Christian Wolff, who offer both the law of na-
;law. This theory adheres more closely to the ideas of
Grotius, "the father of international law," to the effect that
th~ system of international law is based on "the dictate of
right reason" as well as "the practice of states." Briefly, it
19 asserted that "in so far as it conformed to the dictates of
right reason, the voluntary law might be said to blend
with the natural law and be indeed the expression of it.
Sh0uld there be a conflict between the two, the law of na~
tµre was to prevail as being the fundamental law, the
authority of which could not be contravened hy the prac-
tfoe of states.',25
The influence of these schools of thought is describ~d
by Ri~hop ::I!': follmv.":
Frcm the time of Vattel and his contemporanes, until
the World War, the Positivist writers gained steady ascen-
dancy; since then there has been some slight swing towards a
revived natural law among theorists and writers on interna-
tional law, b•lt apparently this has had little effect on actual
internatJonl:11 le!!al p:ractice. Those v:ho as judges and st?Jes-
nian make and apply international law are inclined to talk
primarily, if not solely, in Positivist terms; but a theoretically
21
Vattel, Droit des Gens, cited in Bishop, 20.
15 I '
.F:enwick, 51-52.
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 I. { l!\"TF.RNAT!ON'AL T,AW
satisfactoty e::planation of international La N in op~rafrm may
1
26
demand some reliance upon ideas of natural law
Sanctions of International Law
Assuming that international law is binding upon the
international community, what is it that compels obedi-
ence to its precepts? For, indeed, the fact that a law is
binding does not necessarily ~ean it will be observed,
especially in the absence of some coercive influence to
dictate obedience. It should be remembered that, unlike
municipal law, which generally prescribes specific meth-
ods for its enforcement, international law· is not provided
with "teeth," as it were, to ensure a more respectful regard
for its principles.2 '
Despite the serious handicaps of the law of nations in
its present stage, there are a number of factors that more
or less induce observance of its more generally accepted
precepts. These, sanctions, as they are called, have been
described as ~'the compulsive force of reciprocal advantage
and fear of retaliation."28 According to the fl.iji;t(i
_,,. .•..,.~·,~;, ;;~~-~:·, ..r.w. ......... ........... . . . '. ;2,9 ".
Atlantic
. (!}) A fourth sanction is the constant and reasonable fear,
/ ~Mfi.e's.~'A.rbltfi:itfifti:~ they may consist of "appeal to pub-
I lie opinion, publication of correspondence, censure by Par-
~ ' liamentary vote, demand for arbitration with the odium
attendant on a refusal to arbitrate, rupture of relations,
,~ rep1;sal, etc."
(y Easily one of the most effective if the least obtrus,ve
of these sanctions is the belief shared by many states in
the inherent reasonableness of internationa.l law and in
tb~ir i:-ommon i::onviction that its observance will redound
to the welfare of the whole society of nations. This is a
26
P. 22.
2
' Pp. 59-60.
20
Philip M. Brown, Int_emational Realities, (1917) 21.
2
• Scott, Hague Court Reports (196), 141, 167.
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GENERA.I, PltlNCIPLES 1f>
reflection of the age-old desire of men and peoples fi.>T in-
ternational order in lieu of anarchy and lawlessness
which, during many periods of history, have characterized
the relations of states.
(j) But regardless of the intrinsic merits of the rules of
international law, they may still be observed by states
because of the normal habits of obediePce ingrained in the
nature of man as a social being. These habits persuade
individuals, and ultimately states, to follow, almost auto-
matically at times, certain norms of conduct imposed for
their observan.ce.
(.~) No less effective is the respect for world opinion held
by most states, or their desire to project an agreeable pub
lie image in order to maintain the goodv,•i.11 and favorable
regard of the rest of the family of nations. This sanction is
the motivation for the propaganda campaigns now being
waged by the leading powers in their effort to win the
sympathy and support of the other countries for their re-
spective ideologies.
present even in the most powerful of states, that violations
of international law might visit upon the culpdt the re-
taliation of other states. The force of this influence was
dramatically illustrated in 1962 when the Soviet Union
made a diplomatic and physical retreat in the face of a
determined quarantine established by the United States
against shipments ()f rr1issiles and oth~r munitions to
Cuba.
(§'1 Fina.Uy, hut. not. the lea.st signifiC'ant, thf.re t!': thP. ma-
chinery of the United Nations which, within the sphere of
its limited powers, has on many occasions proved to be an
effective deterrent to international disputes caused by
· . ~isregard of the law of nations. The moral influence of this
,: .~ 9rganization, coupled with its power to employ p~ysical
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16 INTERNATIONAL LAW
l.'l
,J force whenever wan-anted, has aborted or resolved not a
1
:1111 , fe-w international disagreements that otherwi8'? migl,t
have assumed more serious proportions.
Enforcement of International Law
If we follow the Austinian concept that a rule of ac-
tion can be considered law only if it is prescribed by a po-
litical superior with power to punish violators, then inter-
national law ·cannot be regarded as true law. However,
considering the more acceptable view that there are many
norms of conduct that society may volµnta11.ly adopt and
obey although no specific penalty is imposed for non-
observance, international law may be said to possess the
qualities of true law.
This being so, it is important to ascertain the various
methods by which international law may be enforced in
the family of nations. But first, distinction should be made
between observance and enforcement. The former is es-
sentially subjective and mainly dependent on the volition
of the entity which is supposed to be governed by the law.
Enforcement, on the other hand, is the process by which
such observance may be compelled, usually by force or at
least the threat of force.
,·
States are able to enforce intemational law among
each other through international organizations or regional
groups such as the United Nations and the Organization
·i11: of American States. Grievances of the disagreeing states
11 may be present.ed to and di.scussed in these hodies, which
,I:
mPy there;.=i ft.er adopt ~·1ch n,easures a!, rn:3.y be neces<:.ary
f to compel compliance with international obligations or
vindicate the wro!lg committed. At present, this function is
usually exe1·cised by the United Nations through the Secu-
rity Council and the International Court of ,Justice, lnde-
penckntly of these, specinl arbitnd tribunals may be c!·e-
,1:iJI
G~;~,El\;\l. PFm,cirLES 17
ated by agreement of the pr,rties affected for the settle
ment of their dispute.
In lieu of such remedies, or sometimes before they are
availed of, the quarreling states may attempt to settle
their differences between themselves, either through ami-
cable _methods such as diplomatic talks or hostile meas-
ures like. retorsions and reprisals. Where these fail, war
itself may be waged as a last resort. In such an event, the
laws governing the conduct of the hostilities, as well as the
laws of neutrality, are enforced mainly through physical
force by the belligerents and the neutral states. Violations
of these laws may also be punished after the war through
such measures as the prosecution of war criminals and the
collection of reparations.
The United Nations demonstrated its capacity to con-
tain aggression in the '(}~lf War of 1991. when Iraq was
forced to withdraw from Kuwait in the face of a deter-
mined military action taken by the world organization.
And more recently, again by mandate of the United Na-
tions, military units from the United States and other
countries provided food and medicines to the starving
people of Somalia, from whom relief goods sent by .c harita-
ble organizations had been hijacked by the warlords of
that country fo1· their own use.
Internally, the rules of international law may be
treated by the indivirl.ual states as part of their municipal
law. The legislature may implement such rules by pre-
scribing the norms for tl-ieir obse• var1ce and providing
gpP.dfi.c p~naltie.s for t.heir v1olati011, a~ when jt 113.ys do-~~n
the ?erial fo1bilities for genocide or for an attack against a
diplomatic representative. The executive participates by
enforcing such laws. The judiciary, for its part, can play an
important role in this regard by applying· the rules of in-
ternational law ex proprio vigore in proper cases or ~h"e .
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18 INTERNATIONAL LAW
appropriate statutory enactments intended to implement
them.
Functions of International Law
The primary function of international law is to estab-
lish peace and order in the community of nations and to
prevent the employment of fore~, including war, in all
international relations. But as it seeks not an uneasy
truce but a lasting accord based on a genuine spirit of
, ,, international harmony, it strives as well to promote world
·~;.: friendship by leveling the barriers, as of color or creed,
that have so far obstructed the fostering of a closer under-
standing in the family of nations. For its third purpose,
international law endeavors to encourage and ensure
greater international cooperation in the solution of certain
common problems of a political, economic, cultural or hu-
manitarian character. Finally, international law also aims
;- , to provid~ for the orderly management of the relations of
VUstates on the basis of the substantive rules they have
agreed t.o oh.c;;:P.rvP. ::is mP.mhP.rs of thA intemationaJ com-
munity.
Di~t.in~t.ion~ wit.h Ot.hP.t· Con~P.pt.~
International law is also to be d.istirnruished from
other closely related concepts.
,ffi_t,~r.@.tional morality or ethics embodies those prin-
ciples which govern the r~lations of states from the higher
standpoint of con.c::cience. more.lity, justice and hurna11ity.
In this sense, it is similar to the law of nature. It may also
be likened to ffiiernational comity, which refers to those
rules of courtesy observed by states in their mutual rela-
tions, in that violations of its precepts are not regarded as
constituting groundsJor legal claims.
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International diplomacy relates to the OQjects of na-
tional or international policy and the conduct of foreign
affairs or international relations. Satow defines it as "the
application of intelligence and tact to the conduct of official
relations between independent states "30 In this connec-
tion, reference may be made to thejus feciale, or the law of
negotiations and diplomacy which determined the duties
of the Fecial College of the old Roman Republic. This body
gave effect to formal declarations of war, rendered advice
on questions respecting war and peace, acted as heralds
and ambassadors, and received and entertained the en-
voys of foreign states.31
i[.(riJ~rnational administrative law is defined as "that
body of laws and regulations, now highly developed, cre-
ated by the action of international conferences or commis-
sions which regulate the relations and activities of na-
tional and international agencies with respect to those
mate1ial and intellectual interests which have received an
authoritative universal recognition."32 Among such inter-
ests are int3rnational communications, protection of liter-
ary and artistic rights, prevention of crime, and the pro-
motion of health and education.
.· Present State of International La,v
Many of the r11les of internationB.l law lire root.€d ifl
tradition, but not a few of them have yielded to new prin-
ciples brought about by modern developments in interna-
tional relations, such as the receding distinctions between
combatants and non-combatants, the growing claims over
the maritime domain of states, the general disapprobation
30
'!'
I, Diplomatic Practice, 1.
31
Davis, Elements ofinternational La\v, 5-6 .
.j: , 2
, Cf. Hershey, 5 .
 9.0 INTERNATIONAL LAW

of intervention, the outlawry of war, and the expansion of Chapter 2

the horizons of man into the realm of outer space.
Unfortunately, advances in science have brought the
peoples of the world closer together only in a physical
sense, and conflicting interests and ideologies continue to
retard the growth of a universal rule oflaw based on peace
and jvstic8. TnternationFII law thus remains in a state of
transition as mankind struggles toward the millennium of
harmony and order.
SOURCES OF INTERNATIONAL LAW
CONFORMABLY TO ARTICLE 387 of the Statute of the
International Court of.Justice, the sources of international
law may be generally classified as primary or secondary.
The primary or direct sources arc treaties or conventions,
customs, and the general p1;nciplcs of law. The secondary
or indirect sources are the dei::isions 0f i::0urts and the
writings of publicists.
The said article provides as follows:

1. The Court, whose function is to decide in accordance

with international law such disputes as arc submitted to it,
-Rha U apply:
a. international conventions, whether general or
particular, establishing rules expressly recognized by the
contesting state;
b. international custom, as e"idence of a general
pt'actice a.ccepted as law;
c. the general pr!.nciples of law t'ecognized by civi-
lized nations;
d. s1JbjP.ct to the provisions of Article 5!:I, judicial
tho. mni::t. J.iigh]y '}'.'"'1.ifie<'I
ciP.('il'lhn!:: o:irJ.rJ tl,P h'\flrhing" 'lf
publicists of the various nations, as subsidiary means for
the determination of rules oflaw.
2. This prohibition shall not prejudice the power of the
Court to decide a case ex aequo et bono, if the parties agree
thereto.

Treaties
It is obvious that not every treaty can be considered a
direct source of international law as it is not always con-

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 '2.'2 It.rrEm,A'TtONAL LAw
eluded by the great body of states. A bilateral treaty be-
tween the Philippines and Japan, for example, is binding
only upon the signatories and cannot apply to the rest of
the international community which had no participation
in its negotiation or adoption. Such a treaty, being limited
in operation, is a .source only of what is called "particular
international law:"
However, even bilateral treaties may become primary
sources of international law, if they are of the same na-
ture, contain practically uniform provisions and are con-
cluded by a substantial number of states, albeit sepa-
rately. Examples are the l'_standard" extradition treaties
which, while only bilateral, are notable for their growing
number and also the similarity of their stipulations.
The general rule, though, is that the treaty, to be con-
sidered a direct source of international law, must be con-
cluded by a sizable number of states and thus reflect the
will or at least the consensus of the family of nations. The
treaty need not be entered into at the outset by a majority
of the states forming the international community. Even if
originally agreed upon only by a few states, the treaty may
become binding upon the whole world if it is intended to
lay down rules for observance by al1 and it is subsequently
signed or acceded to by other states which thereby submit
to its provisions.
Examples of these A~wmaking treaties," as they are
called, are the Peace of Westphalia of 1648, the Congress
of Vienna of 1815, the Dedarar.ion of Paris of 1856, the
Geneva Red Cross Conv'=nti~n of 1864, and t.he llnited
Nations Charter of 1945.
1jlU
Custom
11~:
A custom is defined by Fenwick as a practice which
has grown up between states and has come to ?e accepted
J. t' ~
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SouncEs or INTEnNATIOI\'AL LAW 23
as binding by the mere fact of persistent usage over a long
period of time. An example is the practice of granting im-
munities to foreign heads of states or diplomats in the
territory of the local state pursuant to what has come to be
known as the principle of exterritoriality. Many of the rules
on maritime warfare and international commerce origi-
nated in the practice of a single state or gToups of states,
becoming universal later with their acceptance by other
states ..The exercise of jurisdiction by states beyond their
territories is also based mainly on international custom.
Most of the customary rules of law have been ex-
press ly affirmed and embodied in treaties and conven-
tions, like the Hague Conventions of 1899 and 1907. Sig-
nificantly, these rules, by virtue of their force as interna-
tional customs and their express recognition as generally
accepted principles of international law, bind even those
states which have not signed these conventions.
One defect of customary international law is the diffi-
culty of determining when a practice can be considered to
have hardened into custom and thus acquired obligatory
character. Unlike conventional law, custom is not formally
promulgated or "struck off' at a definite time. Another
problem is its inability at times, owing t.o its slow process
of e,;oh1.tion1 to adjust to the swiftly moving developments
of the international society which it is supposed to regu-
late. Many of the customary laws of neutrality, for exam-
ple, like the ~ .oh·
les on blockade, have become outmoded
because of their fail.urP. to keep pace with modern ad-
vances, particnlarlv in science, t.ransportation and com-
munication.
Custom is distinguished from usage in that the latter,
while also a long established way of doing things by states,
is not coupled with the conviction that it is obligatory and
right. The example given by Oppenheim is the old mari-
...
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24 lmERNATIONt\L L.o.w
time ceremonials in the open sea which, although gener-
ally observed before, were nevertheless not regarded a8
compulsory.
General Principles of Law
While most writers regard treaties and customs as
the only primary sources of international law, the Statute
of the International Court of Justice has added a third, to
wit, the general principles oflaw.
The general principles of law are mostly derived from
the law of nature and are observed by the majority of
states because they are believed to be good and just. Their
inclusion as a direct source of international law in the
aforementioned Article 36 has been interpreted as a rejec-
tion of the Positivist view that international law is binding
only when consented to by the family of nations.
Although no international convention was necessary
to bring them into existence, the general principles of law
have nevertheless become universal in application because
of the unilateral decision of a considerable number of
states to adopt and observe them in recognition of their
intrinsic merit. The Roman Law, for example, incorpo-
rated therein many of these principles, and numerous
other municipal laws hewing closely to Roman Law have
followed suit, thereby making the rules common through-
out virtually the whole civilized world. It is in this manner
.that such concepts as prescription, estoppel, pacta sunt
seruanda., consent, and res judicl],ta havP, acquired the
status of general principles of law binding as ~uch on the
entire international community.
It is not easy to identify the general principle of law
since it is based on reason and conscience, which are
thought by the critics of the Naturalist School to be unre-
liable and ambiguous standards of international conduct.
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S,:,r,1>1rES l.)F' 1Mr~l<NA'TIO~A1. I .AW
2fi
Secondary Sources
In considering t he decisions of courts as subsidiary
sources of international law, Article 38 does not distin-
guish between those rendered by international tnbunals
like the International Court of Justice and arbitration
bodies and those promulgated only by national courts.
Both kinds of decisions are acceptable as long as they are
a correct application and interpretation of the law of na-
, tions or, as Fenwick says, "undertake to establish the true
rule of international law."
In Thirty Hogshead of Sugar v. Boyle,1 Chief Justice
John Marshall of the U.S. Supreme Court declared that
"the de'!isio~s of the courts of every country, so far as they
are founded upon a law common to every country, will be
received, not as authority, but with respect. The decisions
of the courts of every country show how the Law of Na-
tions, in the given case, is understood in that country, and
will be ·~nsidered in adopting the rule which is to prevai1
in this."
Th~&kroiti'nt-of stare decisis is not applicable in inter-
national ra~:"'r-~t";o the decision of a court in one case will
have only persuasive value in the decision of a subse(luent
case. According to Article 59 of the Statute of the Interna-
. -, of Justice, "The decision of the Court has no
'tional Co\lrt
bindi.ng force except between the parties and in respect to
ths:it particular case."
'Th~ ~~cond eubsidiary source of interr,ational law,
viz., the writings of publicists, must also be, to qua1ify as
such, a fair and unbiased representation of international
law, and by an acknowledged authority in the field. Mere
credentials are obviously not enough as the jurist may
have been motivated by national pride or interest, or _error,
'
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 26 UlTERNATIONAL LAw
llijl1

1i 1:, in il"lterpreting a rule of internat.ior1al law or in supposing

t the existence of a rn IP. ,vhich does not in fact form f.'?T t nf' Chapter 3
If
till
th'? l :1 w of n at.ions.
THE INTERNATIONAL CO!VIMUNITY
I
,11

THE INTERNATIONAL COMMUNITY may be described

as the body of juridical entities which are governed by the
law of nations. Under the modern concept, it is composed
not only of states but also of such other international per-
sons as the U nited Nations, the Vatican City, colonies and
dependencies, mandates and trust territories, interna-
tional administrative bodies, belligerent communities, and
even individuals. 'fhesP. are the gener?lly TP.Mgni?'.P.dl}ppj1i
mlgfJB!~wa.tional law.
l-:nhjP-ct. and Object Distinguished

A - - ~{of international law is an entity that has

rights and responsibilities under that law. It has an inter-
national personality in that it can directly assert rights
and be held directly responsible under the law of nations.
In other words, it has the faculty of motivation. By this is
meant that it can be a proper party in transactions in-
volving the application of the law of n ations among mem-
bers of the international community.
A subject of international law must be distingui~hed
from a mere objP.ct. An object of international law is the
person. or t:h.ing in rei:;pect 0f which rights a re held and
i obligations assumed by the subject. It is, therefore, not
I directly governed by the rules of international law. Its
I rights are received and its responsibiiities imposed indi-
.I'"• iI rectly, through the instrumentality of an intermediate
agency. -

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 28 I NT.ERNAT!ONAL LAW
r
Development of the International Community
The Peace of Westphalia of 1648 signaled the begin-
ning of the modern international community as we under-
s tand it today. Among the Christian states of Europe
which can be regarded as its charter members are Eng-
land, France, Spain, Portugal, the German Confederation,
Poland, and the Italian cities, together with Holland and
Switzerland, which last two were formally recognized as
independent states by the agreement. Russia was admit-
ted into the family of nations in 1721. The newly-born
American Republic followed in 1783. In the next century,
many states in Central and South America increased the
membership.
By the Treaty of Paris of 1856, the Ottoman Empire
was admitted as the first non-Christian member of the
~ and even the "family of nations," are cited in support of
"concert of Europe" and was soon joined by others like
Persia, Japan, China and Siam. The Balkan states had
been previously recognized, and, after the first World War,
the Baltic states were also accepted. Next came such coun-
tries as India, Egypt and other Arabian states, which were
accorded either full or qualified status. The Papacy, its
temporal power reduced with the annexation of Rome by
Italy, continued nevertheless to enjoy a special position in
the international society.
Many countries in Asia and Africa remained outside
the circle until after World War II when, as a result of the
growing movement toward self-determination, they were
also recognized as independent states. The Philippines
w as allowed to participate in several international confer-
ences even before it became independent in 1946. Other
Asian states likP. Indonesia, Laos, Cambodia, Malaysia
and Burma ,vere r.reateo subsequently and had little diffi-
culty in winning recognition. In Africa, withdrawa'l of
European control resulted in the birth and admission of
. t~#
.. ....r. iAo....
THi:; h •'fr.'R I\J.,·r1n\l"'' · CnMivTrn,rrY 29
the Congo, 'I'angan)~.ka, J\ lgeria, Ug.imda and ot.hP.rs,
making the family of nations practically universal.
States
From the viewpoint of international law, a state may
be defined as a group of people living together in a definite
territory under an independent government organized for
political ends and capable of entering into international
relations. As an international person, it may have full or
qualified status, depending upon th e degree of its control
over its external affairs.
Some writers no longer recognize the distinction be-
tween state and natwn, pointing out that these two terms
are now used in an identical sense. The appellations given
to the defunct League of Nations and the United Nations,
this view. Nevertheles5, a respectable r.umber of jurists
still hold t.hat whereas the state is a legal concept, the
nation is only a racial or ethnic concept. Hackworth, for
example, observes that "the term 'nation,' strictly speak·
ing, as evidenced by its etymology (nasci, to be born), indi-
cates a relation of birth or origin and implies a common
race, usually characterized by community of language and
customs."1
Thus understood, a nation may comprise several
statBs·, such as Egypt, Iraq, Saudi Arabia, Lebanon, Jor·
daP and others, ·which all belong to the Arab n:;\tion. On
the other hand, it is also possible for a state to be made up
of more than one nation, as in the case of the United
States before the emergence of the amalgamated "American
nation," and of Singapore and Malaysia at present. Indeed,
a nation need not be a state a t all, a fact demonstrated by
1
Hackworth, 47.
- i
,
.
.
1: •
. 1'
-:'.!.I- ...
-
 30 frITERNA'J'IC1NN · LAW
the Poles after the dismemberment of their country in
1795 and, later, during World War II, or by the Italians
before the state ofitaly was created in 1870.
:111
In any event, the state (or nation) should possess the
f following elements in order to be regarded as an interna-
tional person: (a) a permanent population; (b) a defined
territory; (c) government; and (d) sovereignty or independ-
ence. Two other addjtional elements suggested by some
writers, to wi~, recognition by other states and possession
of a sufficient degree of civilization, have not yet met with
general acceptance.
(a) People
People as an element of the state refers to the human
beings living within its territory. They should be of both
sexes and sufficient in number to maintain and perpetuate
themselves. Kelsen observes that they are regarded as a
unity. According to him, "Individnals of different races,
languages and religions very often actually fonn rmP. 'pP.o-
ple,' that is to say, the peopl~ ,)f nnP. Rb=1tFl.'i2
(b) Territory
Territory is the fixed portion of the surface of the
earth in which the people of the state reside. Nomadic
tribes and the so-callP-d "moving states" do not, therefore,
possess this element. A defined territory is nec8Ssary for
jurisdictional reasons and in order to provide for the needs
of the inhabitants. Purely as a practical requirement, the
territory should be big enough to be self-sufficient and
small enough to be easily administered and defended.
i Kelsen, 227.
'I'IIE TNTF.RN A.TTONAL CDMMU?HTY :=n
(c) Government
Government is defined as the agency through which
the will of the state is formulated, expressed and realized.
It is necessary in international law because the state
must have an entity to represent it in its relations with
other states. The form of the government does not matter
provid3d it ~s able to maintain order within the realm and
comply with its responsibilities under the. law of nations. A
group of arll'U''.'hiid:.c: nr ::i Rociety of pirates cannot qL1!:!.lify ~~
!'l ~tAtP..
(d) Sovereignty
Independence has been described as the external as-
pect or manifestation of sovereignty, that is, the power of
the state to direct its own external affairs without inter-
ference or dictation from other states. The degree of its
freedom in this regard determines the status of the state
as an international person. It should be noted, however,
that while this freedom is to be desired, its excessive as-
sertion may clP.fP.at ~.t ti.me.~ the effedive operation of the
law of nations. AB Jessup observes, "Sovereignty is the
quicksand on which the foundations of international law
are built:"3
Capaci t,y of States
An enW.v possessed of the above-discussed elements
is ordinarily r egarded as an international person entitled
to membership in the family of nations. However, this
consequence does not always or automatically follow. One
reason, as will .be seen later, is that the recognition of
states is generally considered a political act which may not
...
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TNTF.RNATlOHAL I , A'\t.,-
:~?.
1'111
be compelled. Another may be the rest ricted capacity of
the state to discharge international obligations, owing
either to treaty commitments or to its limited resources.
This deficiency has barred the admission of certain states
to international organizations.
Switzerland, for example, is considered by many as
ineligible for membership in the United Nations because
its permanent neutralization will· prevent it from partici-
pating in the .enforcement or preventive action that may
be called by the Security Council. Liechstenstein's applica-
tion for membership in the old League of. Nations was
denied in 1920 because of its limit.ed size, small popula -
tion, lack of an army, geographical position, and deputa-
tion to other states of some of the attributes of sovereignty,
a lthough it was admitted that "juridically the Principality
of Liechstenstein is a sovereign state." Andorra, Monaco
and San Marino were also rejected on similar grounds.
The United Nations h as a different at titude. Its policy
being to involve in the organization as many members of
the family of nations as possible, it has not hesitated to
accept applicants that would have been barred by the
League of Nationi; because of their limit.ed resources or
~::ipflhilities. Some examples are A11g0ls:1 :,inn G::ihon. 4
Classification of States
Sta.tes m.3y generally be classified into independent
and dependent states, the former having full international
personality. L.u<i~i>:e.ndel.lV~~t.&.,.'are simple or composite,
either of which may be neutralized.,,~~~P:9~nt.:'.s tates are
usually exemplified by the protectorate and the s uzerainty
and are so called because they do not have fuil control of
t , • It has refused to recognize the Transkei, however, because"it
is said to be a product of South Africa's apa1theid policy. ,
i1·
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1'1-ll? TN'l'RRN, nnNAT. Cm,IMlllflTY ~~~
their external relations.
Independent States
Strictly speaking, sovereignty connotes freedom in
the direction by the state of its own internal and external
affairs. H owever, international law is concerned only with
this freedom in so far as it relates to external affairs;
hence, a state which is not st1bject to dictation from others
i.n this res pect is known as an independent state.
( ::\) Simple States
A simple state is one which is placed under a single
and centralized government exercising power over both its
internal and external affairs. Examples are the Philip-
pines and the Netherlands.
(b) Composite States
A composite state consist of two or more states, each
with its own separate government but bound under a cen
tral authority exercising, to a greater or less degree, con-
trol over tb.§!ir ~xternal relations. The real union?@i~f
fil~~~ili~e usually given as examples of composite
sta tes ·;vif-.h full international p~r.<~onality, as distinguished
from the~.,ffl*:~ti.on~ which is regarded as an imperfect
int.ernationafperson. Of doubtful category is the personal
union, which will also be discussed below.
(1) Real Union
A real union is created when two or more states are
merged u nder a unified authority so that they form a sin-
gle international person through which they act as one
entity. The states forming this union retain their separate
identities as such, but their respective international per-
;
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l~llj 34 llITEPJ'JAT!ONi\L LA w TnE r" ·t:c::RNAr·10..1AL C0MM'JN1n
1
35

sonalities are extinguished and blended in the new inter-
national person, which, however, is not regarded as a state
in itse1f.5 Such a union existed between Norway and Swe-
den frorn J.81!-5 to 1905, between Austria :rnd Hungary from
1867 to HHS, and more recently between Egypt and S_yTia.
illl (2) Federal Union
A federal union, or federation, is a combination of two
or more sov~reign states which upon merger cease to be
states, resulting in the creation of a new state with fu1l
international personality to represent them-in their exter-
nal relations as well as a certain degree of power over
their domestic affairs and their inhabitants. An example is
the United States. But it should be noted that there are
some federations which, conformably to municipal law, do
not exercise full dir.ecti.on of ext.err1al r1.ffairs, s0me po,ver
oYeI thjs matter being retained by the me111ber states. Of
this type was the Geiman Empire under the Constitution of
5
1871.
(3) Confederation
A confederation is an organization of states which re-
tain their internal sovereignty and, to some degree, their
external soverejgnty, while delegating to the collective
body power to represent them as a whole for cert~n lim-
ited anrl specHied purpose,9-. To the extent that thP. ~onfo<l-
eration itself and each of the member states are able to
maintain international relations, they are all regarded as
so many international persons, albeit not full but only
imperfect. The German states were joined in a confedera-
tion in 1866 until they eventually developed into a more
• Bishop, i80.
6 .
Ibid.
closely-knit federation.
( i) Personal Uni.on
A personal union comes into being when two or more
independent states are brought together under the rule of
the same monarch, who nevertheless does not become one
international person for the purpose of representing any or
all of them. As in the case of Belgium and the former
Congo Free State from 1885 to 1905~ each member re-
mains a state and an international person, although its
externs.l policies are a:rected by the same ruler who dic-
tates the foreign affairs of the other components of the
union. Strictly speaking, therefore, the personal union is
not a composite state because no new international person
is created to represent it in international relations. This is
pro~a.bly the -r·P,ason why smr,e writers, like Mom·e, rliscuss
the personal union under the classification of simple
states.
(5) Incorporate Union
An incorporate union is a union of two or more states
under a t::entral authority empowP.red to dirP,ct both their
external,. and internal affairs and possessed of a separate
international personality. It differs from a real union in
that only external affairs are placed under the control of
the latter. An example of an incorporate union is the
United Kingdom of Great Britain and Nmthem Ireland.~"
Neutralized States
An independent state, whether it be simple or com-
posite, may be neutralized through agreement with other
,;~ :l.
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s. Paras ,33
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36 INTERNATIONAL LAW
states by virtue of which the latter will guarantee its in-
tegrity and independence provided it refrains from taking
any act that will involve it in war or other hostile activity
except for defensive purposes. This is obviously desirable
from the viewpoint of the neutralized state because it will
remove itself from the vicissitudes of international politics
and all their attendant expense and anxiety. On the part
of the guaranteeing states, their reasons may be humani
tarian or political: compassion for a weak and small state,
balance of power considerations, the necessity for a buffer
state to relieve inte1national friction, and the like.
Switzerland was neutralized in 1815 and has man-
aged to maintain its status despite the many wars that
have engulfed Europe since the Congress of Vienna. Bel-
gium's neutralization was violated by Germany in HH4
and then again in 1939. Ls:tos w9i;: rn:mt.rnli?:P.<l in 1954 by
l'lgrnP.mP.nt among fourteen states.
D~p'2'nr1P.1'1 t. ~t.:lt.P.s
The term dependent state is a legal paradox because
the status of statehood implies the idea of independence.
To say that an entity is a state is to acknowledge, without
O bility of its premises ana archives, and ·exemption from
more, that it is independent or that it is possessed of the
indispensable attribute of sovereignty. In light oftti:a:clb.
ffiI«iLdoctnne, therefore, the institution or the tlep~~a~-;;i'
state presents a curious anomaly.
Nevertheless, the phrase has gained wide cuITency
among \~·ri.tP-rF: on international law. The reason is the
preseP.i::e of a number of entities which, although corn~
monly recognized as states, are subject to the control of
other states in the direction of their external affairs. These
entities are denominated, for want of a better term, as
semi-sovereign or;(qependent states.
- -t :t -
~li
ii
it~1. ;. ..
; r,
THE 1N1'ERNAT!ONAL COMMU:'.'!ITY 37
Dependent states fall into two general categories, the
protectorate and the suzerainty. There is no unanimity as
to their basic distinctions, some writers even suggesting
that they are identical. One view is that a protectorate
always retains a greater measure of control over its ex-
ternal affairs than the suzerainty. But this opinion is re-
je~ted by others who claim that the distinction between
the two is merely one of nomenclature, democratic states
preferring the term "protectorate" to "suzerainty" and its
suggestion of vassalage. It is also asserted that "in other
cases where the protectorate has enjoyed a degree of inde-
pendence prior to the treaty, its status represents in the-
ory a voluntary act of subordination to the protecting state
by contrast with the concession of autonomy made by the
suzerain state to the vassal state."'
Th~ T_T:r~H':"t:l "N~t.i~n~
Although the United Nations is not a state or a su-
perstate but a mere organization of states, it is regarded
as an international person for certain purposes. Like
states, although not to the same ~~tent, it enjoys certain
_privileges and immunities, such as !non-suability, inviola-
taxation. It has the!l·n ght of legation, i.e., it can send and
receive diplomatic agents, who possess the same rights
accorded regular envoys. According t0 thP. International
Court of Justi,:;e. the Unit~d Nations c1:1n assert a. diplo-
matic claim on behalf of its officials/ and treaties may also
be concluded by it through the General Assembly, the
Security Council, and the Economic and Social Council. In
addition, trust ten-itories are supposed to be under the
residual sovereignty of the United Nations. It can even
7
Fenwick, 170.
& Bernadotte Cas(!, 1949 I. C.J. Rep. 174.
·,
.,.;:
.....
..

11'.'TERNATIONAL T.t.w
38
wage war, in a sense, n,~ough the P.xerdse of its po,ver to
undertake enforcement ar.t.ion in case of thn~P.t t,_, 0T'
9 the territory of a state. Its population does not reach seven
breach of international peace.
ThA v~t.ir.:::.n City
The influence of the Pope dwindled with the decline
of the Holy Roman Empire and the rise of the spirit of
nationalism. The Reformation contributed further to the
waning prestige of the. Church as a world leader not only
in spiritual but also temporal affairs. With the annexation
of the Papal States by Italy in 1870, the position of the
Holy See as an international person became anomalous. In
1928, Italy and the Vatican concluded the Lateran Treaty
"for the purpose of assuring to the Holy See absolute and
visible independence and of guaranteeing to it absolute
and indisputable sovereignty in the field of international
relations."
Although Italy has by this treaty recognized "the
State of the Vatican under the sovereignty of the Supreme
Pontiff," doubt is expressed by jurists as to its real status
in view of its small territory and population and the ap-
parent impairment of its independence by reason of its
proximity to Italy, not to m~ntion the fact that its govern-
ment is organized more for ecclesiastical than for political
purposes. Nonetheless, it cannot be denied that the Vati-
can City e.,"'{ercises cerlain prerogatives of states, such as
the treaty-making power and the right of diplomatic inter-
course. Moreover, as Kelsen observes-
In this (Lateran) treaty, Italy 'recognizes the full owner-
ship, exclusive dominion, and sovereign authority and jurisdic-
tion of the Holy See over the Vatican,' i.e., a certain terl'itory
within Rome. That means that Italy gave up a part of its terri-
9
U.N. Charter, Art. 42.
11 \
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T i.tR TN•f'J;:QN,vl·t()l\il11 (~nMI\Arl~H·l"J qQ
tory for the purpose of a new state being established on it. This
territory does not exceed one hundred acres; nevertheless, it is
hundred and is composed almost exclusively of individuals re·
siding therein by virtue of their office. Nevertheless, it is the
population of a state. Since the Pope is the grwer•imi>nt, all thP
elements of a state in the sense of intArm1t.ionRl IRw Rm prP.!':P.nt.. ' 0
Colonies and Dependencies
From the viewpoint of international law, a colony or a
dependency is part and parcel of the parent state, through
which all its external relations are transacted with other
.states. As such, therefore, it has no legal standing in the
family of nations. Nevertheless, such entities have been
allowed on occasion to participate in their own right in
international undertakings and granted practically the
status of a sovereign state. It is when acting in this capac-
ity that colonies and dependencies are considered interna-
tional persons.
While still a colony of Great Britain, India was al-
lowed qualified membership in the League of Nations,
signed the Treaty of Versailles and became a charter
member of the United Nations. The Philippines was a
signatory of the Universal Postal Union Convention in
1906, the Inte1·national Sugar Agreement in 1937, and the
OP.claration by United N ati.ons in 194?, Jater bi=lcoming ()Ile
of the original members of the United Nations in 1945. AH
these took place before it became independent in 1946.
In view of the rise of nationalism and self:detenni-
nation, however, the number of colonies has substantially
declined.
°Kelsen, 160.
1
,· l
 INTF.RNATIONAL LAW
40
l.V[andates and Tr,H::t TP.l''1' itodP.s 0
The system of mandates was established after the
first World War in order to avoid outright annexation of
the underdeveloped territories taken from the defeated
powers and to place their administration under some
form of international supervision. Its basic principles
have been retained in the more. comprehensive trustee-
ship system devised by the United Nations Charter.
~\"<: . \ ..•... ~~ •. )i,•:~•
. '· .'··': •·A\i·•(:1i ..·• •,"~. ;., •.,
1milit~inds
w.,;;u.. .. of t-.rn~Cff.imfon fis.iare. provided for' viz.:
(a) those held under mandate under the l-,eague of Na-
tions; (b) those territories detached from the defeated
states after World War II; and (c) those voluntarily placed
under the system by the states responsible for their ad-
ministration. 11 The terms of trusteeship are agreed upon
by the administering authority with the Security Council,
in the case of strategic areas, and with the General As-
12
sembly, in the case of non-strategic areas.
These territories enjoy certain rights directly avail-
able to them under tbe United Nations Charter that
vest them with a degree of international personality.
They are, however, not sovereign. Relative t,:i thi~ mat-
t.P.r, ,l 11 rl gP- McN air has the following to say:
Upon sovereignty a very few words will suffice. The
Mandates System (and the corresponding principles of the In-
ternational Trusteeship System) ie a new institution-a spe·
cial r~!pJi(l"!',h;r j,,ol-u,,>pr, tP.':r°r\t.(\ry flflrl. ;l'lh"\hit,.Anl;S ".\{I fl1<> "1'~
hand and the government which represents them internation-
ally on the other-a new species of international government,
which does not fit into the old conception of sovereignty and
which is alien to it. The doctrine of sovereignty has no applica-
tion to this new system. Sovereignty over a Mandate Territory
is in abeyance; if and when the inhabitants of the tenitory ob-
11
12
U.N. Charter, Art. 77.
Ibid., Arts. 83, 85.
,· i
...
Tm~ frl'l'ERNA'flOJ\TAl. (:()11,11\,fr'l\ll'T•Y
41
tain recognition as an independent state, as has alrearl.y h:'lp-
pened in the ca:=te of' some of the mandates. sovereignty will ,..,_
vive and vest in t.h~ ""'"" ~t~te. ·•
Practically all trust territories have since achieved
indepP-ndence, among them Rwanda and Burundi, and
have been admitted to the United Nations.
Belligerent Communities
•
When a portion of the population 1ises up in arms
against the legitimate government of the state, the up-
heaval is ordinarily regarded as a merely internal affair,
at least during its initial stages. The state is held interna-
tionally responsible for all injuries caused upon third
states by reason of the disorder, and the members of the
uprising are in turn held accountable for their acts under
the laws of the legitimate government.
But when the conflict widens and aggravates, it may
becl)me necessary to accord the rebels recognition of bel-
ligerency. By this the recognizing state, "while not confer-
ring all the rights of an independent state, concedes to the
government recognized the rights, and imposes upon it
the obligations, of an independent state in matters relat-
ing to the war being waged."14 Thus, for purposes of the
conflict, and pending deter:mination of whether or not the
belligernnt comm•mHy should be fully rec0gnized as a
state, it is t.reat.~d as an intermit.ional person and becomes
directly subject to the laws of war and neutrality. As such
{f6'~h~ativfstate," it is vested with full rights of visitation,
search and seizure of contraband articles on the high seas,
blockade and the like, and is held directly responsible for
its unlawful acts.
~ ·f ~
"I. C.J. Advisory Opinions, July 11, 1950. , p* f
~-' 1
• The Three Friends, 166 U.S. 1. ,. f
: J! ! l il
 I::-,'I'FPN/,,f'l(lNAT. LAW
42
Intc1~national Administrative Bodies
Certain administrative bodies created by agree-
ment among states may be vested with international
personality when two conditions concur, to wit, that
[j thejr;_purposes are mainly non-political and that they
ariautonomous, i.e., not subject to the control of any
state. Among these may be mentio11ed the International
Labor Organization, the Food and Agriculture Organi-
zation, the World Health Organization, and the Interna-
tional Monetary Fund, which may enter into agree-
ments with the United Nations, through the Economic
and Social Council, subject to approval by the General
tI Assembly. Other notable examples are the European
ij Commission of the Danube and the Central Commission
I
for the Navigation of the Rhine, which both exercise
legislative, administrative and judicial powers directly
applicable to individuals.
Worthy of note in this connection are the extinct
trading corporations like the Dutch West India Com-
pany and the British North Borneo Company, which
11,1
ij,, were vested with certain powers of sovereignty and en-
joyed for some time a qualified international personal-
ity. Such corporations have ceased to be snbjei::ts of in-
ternational law, their unusual powers having been re
voked by their respectiv~ gov'=rn.n,':"n~~
Tn,H uirl1rn ls
Traditional concept regards the individual only as an
object of international law ,vho can act only through the
instrumentality of his own state in matters involving oth-
ers states. If he is injured, for example, by reason of a
wrong imputable to a foreign jurisdiction, he can secure
redress only with the assistan,~ ·and representation of his
own state, and not otherwise. 'rp.e reason is that, in theory,
'!!·! '. ..
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13
it is his state whose right-i.e., the right to have its na-
tionals respected by other states-has been violated.
Hence, it is the state of the individual, and not the indi-
vidual himself, that can be a proper party in the assertion
of a claim for damages.
Of late, however, the view has grown among many
writers that the individual is not merely an object but a
subject of international law. One argument is that the
individual is the basic unit of society, national and inter-
national, and must, therefore, ultimately be governed by
the law of this society, including those that are theoreti-
cally binding on states as agents of the individual. Moreo-
ver, many precepts of the law of nations are directly appli-
cable to or for the benefit of the individual, sometimes
even independently of the state to which he may belong.
Thus, it is pointed out that-
(1) The United Nations Charter "reaffirms faith in
fundamental human rights, in the dignity and worth of
the human person, and in the equal rights of men and
women," and contains many provisions looking to the
promotion of these rights.
(2) The Universal Declaration of Human Rights, in
recognition of "the inherent dignity and of the equal and
inaliena9le rights of all members of the human family,"
proclaims the basic individual rights which all nations are
called upon to foster.
(3) A number of treaties rlirnctly confer rigbts upon
in<lh,;n.ni:tlR and authori:;:e them to bring lawsuits ::i.gainst.
states before national or international tribunals for re·
dress of the private interest violated. Examples are the
Treaty of Versailles, the so-called minority treaties in fa-
vor of racial, religious and linguistic minorities, and the
German-Polish Convention Regarding Upper Silesia. · ; .
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14 INrEP"-' An 0t,AL LAw
(4) Sta tes are obliged to maintain an international
standard of justice in connection with the treatmen t of
aliens within their jurisdiction, failing which they may be
held liable in damages for the injury suffered by such for-
eigners .
(5) The Genocide Convention condemns the mass
extermination of national, racial or religious groups as a
crime under international law and makes the perpetra-
tors thereof, states as well as individuals, subject to
punishment.
(6) The Nuremberg and Tokyo war crimes trials at-
tached direct responsibility to individuals for offenses
committed by them in violation of the law of nations,
whether it be on their own responsibility 01· on behalf of
their states.
(7) Pirates have been immemorially regarded as
hostes humanis generis and are directly and individually
punishable for their acts by whichever state may have
them in custody.
(8) Certain laws of war and neutrality, such as the
rules on carriage of contraband and breach of blockade,
procedure before prize courts, espionage, treatment of the
sick and wounded, and the rights of prisoners of war , di-
rectly affect the individuals themselves rather than the
states to w hich they belong.
(9) The Hague Convention of 1930 lays down spe-
cific rules intended to prevent or minimize the anomalous
condition of statelessness.
(10) The Convention Relating t..o the St.a tus of
Stateless Persons bestows cer.tain right.s in favor of indi-
viduals who otherwise, for lack or loss of nationality, can-
not invoke the assistance or protection of a ny state.
(11) The doctrine of incorporation makes the law of
nations part of ip.~picipal law, and, hence, directly appli-
cable to the individual inhabitants of the state.
.:th-
Chapter 1
THE lTNITRn NATIONS
THE UNITED NATIONS emerged out of the travail of
World War II as a symbol of man's undismayed determi-
nation to establish for all nations a rule of law that would
forever banish the terrible arbitrament of war in the solu-
tion of international disputes. In the midst of the immeas-
urable tragedy and suffering caused by the greatest con-
flict ever inflicted upon humanity during its long and vio-
lent history, the new organization was hopefully envi-
sioned as the a nswer to the universal yearning for peace
and friendship among all peoples regardless of color or
creed.
The idea behind the United Nations was not a new
concept, for forward-looking statesmen and jurists through
the ages have proposed and nurtured plans for some kind
of world government to which national sovereignties
would be subject and under which all nations would work
together in pursuit of their common purposes. However, it
was only after World War I that the first concrete step in
this direction was taken with the organization of the
League of Nations. Unfortunately, certain inherent weak-
ness of this body, coupled with the fact that the United
States was not a member thereof, consider ably impaired
its effectiven ess in the maintenance of international peace,
which was finally shB.ttered in 1939. In 194'3, shortly after
the war it had failed to preve11.t. the League of N::itionR waB
formally dissolved.
Even while World War II was still raging~ the move-
ment toward a new international organization was steadily
• r
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45 t '
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18 lN T'R~'N 4'l Tf"'\M .l.T.
1 1 f,A-./•/
There has thus come into existence a new intemational
person, an organization unique in character, the objectives of
which are of such transcending character that ifit should func-
tion with any degree of efficiency it may be expected to sup-
plant in due course the older and looser organization of the in-
ternational community. For the time being the two organiza-
tions exist side by side. Rules of customary law will bind states
as members of the international community; and it will be to
the law of the international community that appeal will be
made when controversies arise concerning the scope and effects
of customary law. On the other hand, the Charter of the United
Nations contemplates that the General Assembly will initiate
studies and make recommendations for the purpos':! of pro·
mating the progres"ive development of international law ?nd
its codifieation. TI1e 1esult of this will be to bring into effect by
degrees a body of treaty law which will outmode the existing
customary law. When that happens, membership in the older
community of nations will have lost its meaning.'
The U.N. Charter
The United Nations Charter is a lengthy document
consisting of 111 articles besides the Preamble and the
concluding provisions. It also includes the Statute of the
International Court of Justice which is annexed to and
made an integral part of it.
In one sense, the Charter may be considered a treaty
because it derives its binding force from the agreement of
the parties to it. In another sense, it may be regarded as a
constitution in so far as it provides for the organization
and operations of the different organs of the United Na-
tions and for the adoption of any change in its provisions
through a formal process of amendment.
It is significant that the Charter is intended to apply
not only to the members of the Organization but also to
non-member states "so far as may be necessary for the
' Eenwick, 183.
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T HE UNITED NA'l'l0 1'1:3 4.q
2
maintenance of international peace and security." Fur-
thermore, it is provided in Article 103 that "in the event of
a conflict between the obligations of the Members of the
United Nations under the present Charter and their obli-
gations under any other international agreement, their
obligations under the present Charter shall prevail.'.a
Amendments to the Charter shall come into force for
all members of the United Nations wben they have been
adopted by a vote of two-thirds of the members of the Gen-
eral Assembly and ratified in accordance with their re-
spective constitutional processes by two-thirds of the
members of the United Nations, including all the perma-
4
nent members of the Security Council.
A general conference may also be called by majority
vote of the General Assembly and any nine members of
the Security Council for the purpose of reviewing the
Charter. Amendments may be proposed by two-thlrds vote
of the conference and shall take effect when ratified by
two-tlurds of the Members of the United Nations, includ-
5
ing the permanent members of the Security Council.
The Preamble to the Charter
The Preamble introduces the Charter and sets the
common intentions that rnovP.d the original members to
unite their will and efforts to achieve th':!ir ~0mmnn Pnr-
pases." Th':! Pr':.'f1.mhl0 rP.::irl~ :ois follmvs:
1
U.N. Charter, Art. 2(6).
s Ibid., Art. 103.
'Ibid ., Art. 108.
5
lbid .. Art.. 109
5 UNC!O, Rep01t of Rapporteur of Comrnjtt ee 1 to Commission
1, Doc. 944, 1/]}34(1), 1-2. '.- ~ :
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 r-
...

THE UwTED NATrm:s 51

rr-,·r·l<'.RNATIONAL LAIN
fi()

who have exhibited their full powers found to be in

WE THE PEOPLES good and due form, haue agreed to the present Charter
OF THE UNITED NATIONS of the United Nations and do hereby establish an in-
DETERMINED ternational 01-gr:111 i.-::-1Jtirm fn hP knn11111. n..~ thP. TlnitPft.
Nations.
to save succeeding generations from the scourge of
war, which twice in our lifetime has brought untold Purposes
sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the The Purposes constitute the raison d'etre of the
dignity and worth of the human person, in the equal United Nations and are "the aggregation of the common
rights of men and women and of nations large and ends," the cause and object of the Charter to which the
7
small, and to establish conditions under which justice member states collectively and severally subscribe.
and respect for the obligations arising from treaties They are expressed in Article 1 as follows:
and other sources of international law can be main- 1. To maintain international peace and secu
tained, and rity, and to that end: to take effective collective meas-
to promote social progress and bt>.ttP.r standards of' lifP. ures for the prevention and removal of threats to the
in larger freedom, peace, and for the suppression of acts of aggression or
other breaches of the peace, and to bring about by
AND FOR THESE ENDS peaceful means, and in conformity with the principles
to practice tolerance and live together in peace with of justice and international law, adjustment or settle-
one another as good neighbors, and ment of international disputes or situations which
to unite our strength to maintain international petJf.'P might lead to a breach of the peace;
and security, and 2. To develop friendly relations among nations
to ensure, by the acceptance of principles and the insti- based on respect for the principle of equal rights and
tution of methods that armed force shall not be used, self determination of peoples, and to take other appro-
sa11e in the common interest, and priate measures to strengthen universal peace;
to employ international machin£1)' for the promotion 3. To achieve intem(l.tional cooperation in solu-
of the economic and social advancement of all peoples, ing international problems of an economic, social, cul-
tural or humanitarian character, and in promoting
,, HAVE RESOLVED TO and encouraging respect for human rights and for
I COMBINE OUR EFFORTS TO fundamental freedoms for all without distinction as to
ACCOMPLISH THESE AIMS. race, sex, language, or religion; and
1\I .
Accordingly, our respective Governments, through rep-
~
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resentatives assembled in the City ~f_ $an Francisco, ... .
'Ibid.
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4. To be a center for harmonizing the actions nf na-
tir:,11 <: in the attainment of these common ends.
Principles
The Principles, as enumerated in Article 2 of the
Charter, deal with the methods and the regulating norms
according to which the United Nations and its members
shall discharge their obligations and endeavor to achieve
~
· their common ends.8 The seven cardinal principles are the
following.
1. The Organization is based on the principle of
the sovereign equality ofall its Members.
This rule _is itself based on one of the fundamental
rights of states, viz., the right of equality. (See Chapter
9.) Under this principle, all members of the Organiza-
tion, regardless of their size or influence, have, for ex-
ample, the same vote in the General Assembly. Certain
special rights over and above those of other members
are, however, reserved to the so-called Big Five; on the
other hand , the smaller states are not subjer.te.d to the
same fin an~i ::i l , P..:pnMi hilities as the affluent members.
2. All Members, in order to ensure to all of them
the rights and benefits resulting from membership,
shall ful.fill in good fa.ith the obligations assumed b.1 1
them in accordance with the p1'esent Charter.
TI1P. ba~is of this rule is}pac.tq,.1~unt
y,. _,,........ . servanda, which
calls for the observance of treaties iri good faith. As previ ·
ously observed, the United Nations Charter partakes of
the nature of a treaty. The importance of this principle
cannot be minimized, as th.e;success of the Organization
I !. ...
s Ibid. I_, -
it ~ :·
. :J
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-~J ,;~,
THE UNITED NATIONS 53
depends to a large extent on the vvillingness of the mem-
ber-states to comply with the obligations they have as-
snm~d under the Charter.
3. All Members shall settle tht>ir international
disput.eB by pear.efnl mP.ans in .such a manner that in-
ternational peace and security, and justice, are not
endangered.
This rule is itself a generally accepted principle of in-
ternational law. The more common amicable methods of
settling international disputes (which are discussed in
Chapter 17) include the active participation of, principally,
the International Court of J ustice and the Security Coun-
cil and sometimes even the General Assembly.
4. All Members shall refrain in their interna-
tional relations from the threat or use of force
against the territorial integrity or political inde-
pendence of any state, or in any other manner in-
consistent with the Purposes of the United Nations.
This is the most important principle of the United
Nations. Previous international conventions, including
the Covenant of the League of Nations and the Kellogg-
Briana Pact, did not contain a provision like the above,
which is a categorical outlawry of war and al l forms of
force as a method of settling differences among states.
This rule prohibits threat or force upon the territoria.l
integrit.y or political independence of any member of the
United Nations, E!:1.V':' in in.:t.Rnc~R to be noted later.
5. All Memhers shall giue the United Nations
1 ,..
·~. every, a~sistance in any action it takes in accordµ,nce..
;• ~
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with the present Charter., and shall refrain from!gi;q-_
1, s .
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 54 INTERNATIONAL L\W
ing assistance to any state against which the United
Nations is taking preventive or enforcement action.
The efficacy of the United Nations will depend, of
course, upon the cooperation extended to it by the mem-
ber -states. Otherwise, the resolutions adopted and all
other action agreed upon by the membership will be
l their dispute.
nothing but paper decisions and mere lip service to its
avowed objectives. To ensure their full implementation,
there is a necessity for the unreserved involvement of the
members in the activities of the Organization.
tlil 6. The Organization shall ensure that states
which are not Members of the United Nations act in
accordance with these Principles so far as may be nec-
essary for the maintenance of international peace and
security.
Treaties are usually binding only on the signatories
thereto. Under the above rule, however, even non-
members are covered by the obligations imposed by the
Charter for the maintenance of intP.rnational peace and
security. At least, the mP-mber-states are enjoined to SAP. to
it that thP. non-members comply wi t.h l'mch obligations.
7. Nothing contained in the pre,qent Charter
shall autlwrize tM. United NatioM to intervene in
matters whi,eh are essentially within the dome:1,tir. ju-
risdiction of any state or shall require the Members to
submit such matters to settlement under the present
Charter; but this principle shall not prejudice the ap -
1
~11
n~:· plication ofenforcement measures under Chapter VII.
II 'This is commonly known as the "dcmest.icjurisdiction
lf1' clause." As long as the matter remains internal, the same
cannot be the subject of intervention by the United Na-
:. .... )
i I>-;: 1. ~
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.2 .. ,. ......
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'I'1rn 0Nn rn N ,\Tro~;s 55
tions. Hence, a rebellion in a state ordinanly cannot come
under the jurisdiction of the Organizal 1on. The exceptions
are where the internal conflict aggravates into a threat to
or an actual breach of international peace and security or
where the parties voluntarily invoke and submit to the
jurisdiction of the United Nations for the settlement of
In 1960, for exa mple, what started as a civil war in
the Republic of the Congo became in fact an international
war between t he socialist states and the Western dernoc·
racies. The United Nations sent a n expeditionaiy force
that ultimately succeeded in restoring international peace
and security.
Membership
There are two kinds of members in the United Na-
tions: the original and the elective. The distinction be-
tween the two is based only on the manner of their ad-
mission and does not involve a ny difference in the en-
joyment of rights or the discharge of obligations. Both
kinds of members are governed in the same degree by
the Charter of the Organization.
The original or charter members are those states
which, having participated in the United Nations Confer-
ence on International Organization at San Francisco or
having previously signed the Declaration by the United
Nai;ions of J anuary 1, 1942, signed and r~.tifiP.d the Char-
ter of the United Nations.q Interestingly, the Philippines,
India, Lebanon and Syria were included as original mem-
bers although they were not yet states at the time. The
Ukraine and Byelorussia were also considered separate
original members _notwithstanding that they formed part
! U.N. Charter, Art. 3.
; ,
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 1),rEP.~1.t•'f'l()NAL LAw
56
of the Union of Soviet Socialist Republics. All told, there
were fifty-one origina 1 members although one of them,
Poland, was unable to participate in the drafting of the
Charter.
In addition to the original members, other members
may be admitted to the United Nations by decision of the
General Assembly upon the favorable recommendation of
the Security Council. 10 To be eligible for admission, the
11
applicant must possess the following qualifications:
(1) It must be a state. Contrary to the policy of the
defunct League of Nations, the United Nations appears
to be in favor of the admission of even the so-called
"mini-states," like those "graduated" from trust territory
to republic. Among such states are Bahrain, Bhutan,
ii-.
Qatar, and Oman.
(2) It must be peace-loving. This is a subjective
standard that can lead to political rather than legal deci-
sions, as evidenced by the delayed admission of Thailand
because of F rench opposition to it for its alleged invasion
of Inda-China and the Russian objection to the application
of Ireland on the ground that it did not help the Allied
Powers during World War IL
(3) It mu.st accept the obligations of the Charter. Al-
though this r~quires only a formal declaration from the
applicant, it is subject to the fourth and fifth requirements
aR deterrninP.il. hy the Organization itself.
( 4) It must be able to carry out these obUgations. The
view, for example, is that Switzerland, being a neutralized
state, cannot carry out the obligation of preventive or en-
forcement action that may be decreed by the Security
Council. With respect to small states, however, which were
... < ~
10
Ibid.,~Arf. 4(2).
11 • 1
Ibid., Art.
~
4(1):
.
t .. ., 1.-
"
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:!ttj~i
- -·\. ~
THE UN[TED NA'I'I0!."~ 57
barred from the League of Nations on the ground that
they might not be able to comply with their responsibili-
ties under the Covenant, this qualification has not been
strictly enforced.
(5) It must be willing to carry out these obligations.
Also a subjective standard, this qualification was the basis
of the initial opposition to the application of Albania,
which was charged with, among others, failure to agree to
the referral of the Corfu Channel dispute to the Interna-
tional Court of Justice. The United States initially blocked
the admission of Vietnam because of its alleged refusal to
release American prisoners of war.
Can the General Assembly admit an applicant for
membership withQut the favorable recommendation of the
Security Council? In holding that this c0t1ld not be rt()ne,
the Internat.i0ri~l r.r111rt of ,Jn~t:ice declared as follows:
The Court is called upon to determine solely whether the
General Assembly can make a decision to admit a State when
the Security Council has transmitted no recommendation to it.
Article 4, paragraph 2, is as foll ows:
'The admission of any such State to membership in
the United Nations will be effected by a decision of the
Ckneral Assembly upon the recommendation of the Secu-
rity Council.'
The Court has no doubt as to the meaning of this text. lt
requires two things to effect admission: a 'recommendatio.n' of
the Security Council and a 'decision' of the General Assembly.
It is in the nature of things that the recommendation should
come before the decisiov.. The word 'recommendation,' and the
word 'upon' preceding it, imply the itJ.e<\ that t:he recommenda-
tion is the foundation of the d':.'~i..-,10Tl. tc, arl.mit., ~mrl th'it tJ, ... l.R t.
ter rests upon the recommendation . Both these acts are indis-
pensable to form the judgment of the Organization to which
the previous paragraph of Article 4 refers. The text under con-
sideration means that the General Assembly can only decide to
···- t
admit upon the recommendation of the Security Council; it de-
~ .. termines the respective rules of the twp ·organs whoee com-
~ t. ,·£ t t .
·.H ,t•;.i.
"~f : "''p .
 58 l NTEJ;{NA'f'IONAL LAW
bined action is required before admission can be effected; in
other words, the recommendation of the Security Council is t he
condition precedent to the decision of the Assembly by which
11
the admission is effected. •
Suspension of Members
A member of the United Nations against which pre-
ventive or enforcement action has been taken by the Secu-
rity Council may be s uspended from the exercise of its
rights and privileges. As in the case of admission, suspen-
sion is effected by two-thirds of those present and voting in
the General Assembly upon the favorable recommendation
of at least nine members of the Security Council, including
all its permanent members. The suspension may be lifted
alone by the Security Council, also by a qualified majority
12
vote.
The s uspension of a member will prevent it from
participating in the meetings of the General Assembly
or from being elected to or continuing to serve in the
Security Council, the Economic and Social Council or
the Trusteeship Council. Nationals of the suspended
member may, however, continue serving in the Secre-
tariat and the International Court of Justice as they are
regarded as international officials or civil servants act-
ing for the Organiz ation itself. Since its suspension af-
fects only its rights and privileges, the member is still
subject to the discharge of its obligations under the
Charter, such as the payrnent of its financial contr,bu-
tions to the Organization.
Exp1J.lsfon ')f M.flmhers
A member which has persistently violated the princi-
ples contained in the Charter may be expelled by two-
i1a1950 I.C.J.; 44 A.J.I.L. 582 (1950).
2 1
' U.N . Charter, Art. 5.
..
(
ii ~
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:-~
T'
~
THE Utmrw NATIONS
thirds of those present and voting in the General Assem-
~'-
bly upon the recommendation of the Security Council by a
qualified majority vote. 1~ The aim is to provide for a
stronger penalty than mere suspension against a member
that "would have demonstrated that it did not satisfy the
basic requirements of membership, and would be like a
cancerous growth which it would be better to remove com-
pletely than to allow to remain in thP. ho<ly of the Orirani-
zation and persiRt in its influence:·"
Withdr~w~l nfMr.mhP.r~
No provision on withdrawal from membership was
included in the Charter because of the fear that it might
encourage successive withdrawals that would weaken the
Organization. Nevertheless, the San Francisco Conference
approved a special committee report which, while not
categorically permitting or prohibiting withdrawal, ex-
pressed the view that a member might withdraw from the
United Nations if: (a) the Organization was revealed to be
unable to maintain peace or could do so only at the ex-
pense of law and justice; {b) the member's rights and obli-
gations as such were changed by a Charter amendment in
which it had not concurred or which it finds itself unable
to accept; or (c) a n amendment duly accepted by the nl-lces-
sary majority either in the Ganeral As,;emhJ,y or in a gen-
eral conference is not rntified.Jf,
It will Le recalled that Indonesia withdrew from the
United Nations in 1965 but resumed its seat, to the
standing ovation of the other members, after the over-
throw of Sukarno.
11
[bu.I.., Art. 6.
,. Goodrich and Hambro, p. 141.
~ Ibid., 143.
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 J.NTF.RNATTONAJ, T,AW 'IHE U~nTED Nxnm,s 61
60

Organs of the United Nat.ion~
The six principal organs of the United Nations are
the General Assembly, the Security Council, the Economic
and Social Council, the Trusteeship Council, the Interna-
1
tional Court of Justice and the Secretariat. u
The subsidiary organs are those which have been
17
created by or in accordance with the Charter, such as
the Military Staff Committee, the International Law
Commission, and the Commission on Human Rights.
These are not to be confused with the so-called spe-
cialized agencies which a re not part of the United Na-
tions but are brought into close contact with it because
of their purposes and functions. Among theF<e are the
World HeEt lth Organization, the International Mon':'t.::n·y
1'1 ~.
1'·1
'fi 11nd, and the T<:>~hnic.al Assistance B0~n·rl
1 situation which it deems likely to impair the general wel-
'( 1
rl
r:J (a) The Gene ral Assembly
tions concerning international peace and security, election
of members of the Councils, admission, suspension and
expulsion of members, questions relating to the trustee-
ship system, and budgetary matters, are taken by two-
21
thirds of those present and voting. All other matters,
including the determination of whether a question is im-
portant or not, are decided by a majority of those present
and voting. 22
The functions of the General Assembly may be classi-
fied and illustrated as follows:
(1) Deliberative, such as initiating studies and
making recommendations toward the progressive devel-
opment of international law and its codification and rec-
ommending measures for the peaceful adjustment of any
fare or friendly relations among nations.
(2) Supervisory, such as receiving and considering

I The General Assembly is the most representative of

the organs of the United Nations. It consists of all the
members oft.he Organization, each of which is-entitled
18
to send not more than five representatives and five
alternates as well as such technical staff as it may need.
The Gener a 1 Assembly meets in regular anm.1 al ~ei:;sion
beginning on the third Tuesday of September or in spe-
cial session at the call of a majority of its members or at
19
the request of the Security Council.
20
Each member of the General Assembly bas one vote.
Decisions on "important questions," such as recommenda-
----- ···Y":s - --::.~ ~ =~
,. U.N. Charter, Art. 7(1).
:~ Ibid., Art. 7(2).
annual and special reports from the other organs of the
United Nations, making recommendations for the coordi-
nation of their various functions, and approving trustee-
ship agreements in non-strategic areas.
(3) Financial, such as the consideration and ap-
proval of the budget of the Organization, the apportion-
ment of expenses among its members and the approval of
financial arrangements with specialized agencieE:.
{ 1} Elective, S'lch c1s the election 0f the non-
permanent members of the Security Council, all the mem-
bers of the Economic and Social Council, and some of the
members of the Trusteeship Council, as well as, in concur-
rence with the Security Council, the Secretary-General
and the judges of the International Cou1t of Justice.

t - f~ t
18
U.N., Charter, Art. 9(1).
u .•
Ibid., ·Art, 18(2).
.it:
1 I' L •
' lbid ., Art. 20.
to Ibid., Art. 18(1).
:i
21
Ibid:, ·Art: 18(3). ti
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62 INTERNATIONAL LAW
(5) Constituent, such as the admission of members
and the amendment. of t.hP- Charter of th':' rlnit.erl Na
23
tions.
(b) The Security Council
The key organ of the United Nations in the mainte-
nance of international peace and security is the Security
Council. It consists of five permanent members and ten
elective mem bers. The first group, commonly known as
the Big Five, is composed of China, France, the United
2
Kingdom, Russia, and the United States. ~ The other
members are elected for two-year terms by the General
Assembly, five from African and Asian states, two from
Latin American states, two from Western European and
other states, a nd one from Eastern European states. The
non-permanent members are not eligible for immediate re-
election. 25 Provision was also made for the staggering of
their terms so that one-half of them now retire and are
1:: replaced every year. 26
:1' The permanent membe1·s of the Security Council
! were given a preferred position because of the feeling that
they were the states that, in view of their prestige and
power, would be called upon to provide the leadership and
physical force that might be needed to preserve the peace
of the world. On the other band, the geographical distribu·
t.ion of the non·-r~rrnanent mem bers, as provided for in the
amendments to the Charter which were adopted in 1965,
was a recognition of the relative importance of the areas
affected in the maintenance of international order.
21
Goodrich and H~hro, 25-26.
2 t1 U.N. Cha rter, Art. 28.
• U.N. Charter , Art. 23(1). The U.S.S.R. has been replaced by
Russia.
25
18
. ~
Ibid. , Art. 23(2); as ~ended.
Ibid., Art. 23(3.): j ,
.. .
:
·1·
~ ll.
t·'f '~
Tn.F CNTTF.n NATIONS
n~
The Security Council is supposed to be so organized
as to be able to function continuously, and for this purpose
all its members shall be represented at all times at the
seat of the Organization. 77 The idea is for the Council to
hold itself in readiness at all times in case any crisis
should arise in any part of the world. Chairmanship of the
body is rotated every calendar month on the basis of the
English alphabetical order of the names of the members. 28
Voting in the Security Council is governed by the
Yalta formula as devised at the Crimea Conference and
, subsequently incorporated in Article 27 of the Charter.
According to this formula, each member shall have one
29
vote, but distinction is made between the Big Five and
the non-permanent members in the resolution of substan-
tive questions. Procedural matters are to be decided by the
affirmative vote of any nine or more members.30 Decision
on non-procedural questions, on the other hand, requires
the concurrence of also at least nine members, but in-
cluding all the permanent members. However, no mem-
ber, permanent or not, is allowed to vote on questions
concerning the pacific settlement of a dispute to which it is
a party. 81
Procedural matters include questions relating to the
organization and meetings of the Security Council, the
establishment of subsidiary organs and the participation
of states pa rties to a. dispute in the discussions of the or-
gan. Non·prncedural matters a re those that may require
the Security Council under its responsibility of maintain-
ing or restoring world peace to invoke measures of en-
26
Rule 9, Rules of Procedure.
29
30
iJ.N . Charter, Art. 27(1).
Ibid., Art. 27(2). • i
3
' Ibid., Art. 27(3).
~ i ~
~
~ l 1- I-
i
'. .....
•t- '..·
fi4 frl'['fi:1"1A'rlONAL f -~ W
forceme nt. Unlike in the General Assembly, th e "charac-
terization" of a question is considered a non-procedural
32
matter in the Security Council.
The above rules enable a permanent member to cast
what is known as a '<veto" and thereby prevent agreement
on a non-procedural question even if it is supported by all
the other members of the Security Council. It may also
exercise the so-called "double veto," by means of which it
can disapprove any proposal to consider a question merely
procedural a nd thereafter vote against the question itself
on the merits. Significantly, the abstention or a bsence of
any permanent member in connection with a voting on a
non-procedural question is not considered a veto, and the
proposal is deemed adopted if approved by at least nine
member s of the Security Council inc1uding the rest of the
33
permanent members.
The purpose of the Yalta formula is to ensure the
unity of the permanent members in the measures to be
taken in the pursuit of its primary function of main-
taining international peace and security. It was felt that
any effort toward this end might not succeed if it were
not supported by all the members of the Big Five, which,
as previously observed, are expected to exert the full
force of their collective leadership in the preservation of
the peace of the world.
Toward this end, the Security Council mav h3ke steps
for the pacific settlement of disputes34 or, when necessary,
even preventive or enforcement action.35 The only limita-
tion is that the dispute must be international, that is, it
must not be an internal dissension, such as a civil war,
~ See -generally Goodrich and Hambro, 221-223.
aa Ibid. , 223.
"' U .N. Charter, Chapter VI.
5 ' Ibid., Art. 61(3).
~ lb,}cf,_
Arts. 41, 42.
.tti-· :'. .;
<
: ff;
& s It
~
.- fff!
i k
Tm,; CmTED N ATIONS
'3 ,s
unl~ss the ~arties thern~elves submit the matter to P}.e.
Umted Nations. Otherwise, the intervention of the Se-
curity Council would violate one of the principles of the
Organization, to wit, that it shall not intervene in any
ma tter within the domestic jurisdiction of any state. 3 ij
The Security Council also approves trusteeship
agreements in strategic areas and performs a number of
important voting and constituent functions, such as
those relating to the a.dmis sion and discipline of the
members of the United Nations, the election of the
judges of the International Court of Justice and the
Secretary-General, and the a m':'ndm':'~'t ,:if t.hP 0.hi:irtP.r.a·'
(c) The Economic and Social Council
The Economic and Social Council originally con-
sisted of only eighteen members but the body was en-
larged to twenty-seven by the amendments to the Chl3.r-
ter adopted in 1965. It was further expanded to fifty.
four by amendments adopted in 1971.33 All the members
are elected by the General Assembly for three-year
term~ and may be re-elected immediately.39 The terms
h ave been so staggered as to provide for the :replace-
ment. or rP.·~1ection of one- fl, i rel ()f t.Jv'\ ·hnny P.ver:v yP.ar.40
The Economic and Social Council shall meet in regu-
lar session as required in accordance with its rules and in
special session at the request of a majority of its mem-
bers.41 Each member has one vote and decisions are
36
Ibid., Art. 2(6).
"38 U.N. Charter, Arts. 4, 5, 6, 24, 83, 97; Statut.e ofI.C.J., Art. 8.
Ibid., Art. 61(1).
39
Ibid., 61(12).
0
1
' Ibid., Art. 7 2(2) .
.d~
_,·tit"
... :
 66 .{l.;>fFntf.<\l'IOl'lA 1 LAW
42
reached by a majority of those present and voting. Mem-
bers of the United Nations and representatives of the
specialized agencies may be allowed to participate, with-
43
out vote, in the deliberations of the Council.
Responsibility for the promotion of international eco-
nomic and social cooperation is vested in the General As-
11,11
sembly and, under its authority, the Economic and Social
J111
Council. 44 SpecificaUy, these organs should exert efforts
toward:
1. Higher standards of living, full employment,
.~ and conditions of economic and social progress and
development;
2. Solutions of international economic, social,
health and related problems, and international, cul-
tural and educational cooperation; and
3. Universal resp ect for, and observance of,
human right.CJ rmd fundamental freedoms for all wifh-
n11.t distinction as to rt:rr·P, .c~P-X, langua.Re cir ?Pliginn.
In the performance of this duty, the Economic and
Social Council is assisted by certain subsidiary organs like
the Commission on the Status of vVome11 and the regional
economic commissions for Europe, Asi~ and the Fl:lt East.
and Latin America. It also collaborates and may enter into
agreements, subject to the approval of the General As-
sembly, with specialized agencies like the International
Monet ary Fund and the International Trade Commission.
2
' Ibid., Alt. 67.
1
" Ibid., Arts. 69, 70.
;• U.N. Charter, Art. 55.
• d~;
~t, , ~ii-:
st .....· ~'t ~
TH1·: IJ~m Eo l'lATiot.s 6?
(d) The Trust eeship c~m,,-.il
The Trusteeship Council is the organ charged with
the duty of assisting the Security Council and the Gen-
eral Assembly in the administration of the international
trusteeship system. The Trusteeship Council is com-
posed of: (a) the members of the United Nations admin-
istering trust territories; (b) the permanent members of
the Security Council not administering trust territories;
and (c) as many other members elected for three-year
terms by the General Assembly as may be necessary.to
· ensure that the total number of members of the Trus-
teeship Council is equally divided between those Mem-
bers of the United Nations which administer trust terri-
tories and those which do not.~
The Trusteeship Council shall meet in regular ses-
sion as required in accordance with its rules and in spe
cial session at the request of a majority of its members.'~
Each member has one vote and decisions are reached by
a majority of those present and voting. 47
For the purpose of supervising the administration of
the trust territories, the General Assembly and, under its
authority, the Trusteeship Council may: (a) consider re-
port.:, submitted by the administering authorities; (b) ac-
cept petitions :ind examin9 t},em in t'.()nsultation with fl1e
administering authorities; (c) proYide for periodic vfajts t-0
the trust territories at times agreed upon with the admin-
istering authorities; and (d) take such other actions in
conformity with the terms of the questionnaire on the
political, econoffi:ic, social and educational advancement of
'
5
Ibid., Art. 86.
46
Ibid., Art. 90(2).
1
• UN. Charter, Art. 89 .
i,~
:: r:
 INT&RNATIONAL LAW 'l'HE UNITE!) NATI0.\15 69
68
4
the it1hah.itants of the trust terr:itories. is forms of civilization and the principal legal systems of the
The Trusteeship Council has largely hecome obsolete world.° 7
with the conversion of practically all trust territories int.0 The members of the Court have a term of nine
full-fledged miniature states. years and may be re-elected. The terms of the original
members were staggered in such a way as to provide for
(~) The International Court of Justice the election of one-third of the membership at three-
year intervals. 58 No judge can be removed unless, in the
The judicial organ of the United Nations is the Inter- unanimous opinion of the other members, he has ceased
national Court of Justice, which functions in accordance to fulfill the required conditions.59
with the Statute.49 All members of the Organization are The Court shall elect its President and Vice-Presi-
ipso facto parties to the Statute.50 A non-member may dent, who shall serve for three years and may be re-
become a party on conditions to be determined in each elected.60 It shall remain permanently in session, at the
case hy the General Assembly upon the reconunendation Hague or elsewhere, except during the judicial vaca-
51
of the Security Council. tions,01 and may meet either en banc,62 or in chambers
52
The Court is composed of fifteen members who are composed of three or more judges, to deal with particu-
elected by absolute majority vote in the General Assembly lar categories of cases such as those relating to labor,
and the Security Council. 53 The judges must be of high transit and communications. 63 All questions are decided
moral character and possess the qualifications required in by a majority of the judges present,64 the quorum being
their respective countries for appointment to their highest nine when the full Court is sitting.6~
judicial offices or are jurisconsults of recognized compe- The functions of the Court are to decide contentious
tence in international law.54 No two of them may be na- cases and to render advisory opinions.66 Only states, in-
tionals of the same state,55 and in the event that more than cluding non-members of the United Nations, may he par-
one national of the same state obtain the required majori- ties in contentious cases.,;7 The jurisdiction of the Comt is
56
ties, only the eldest shall be considered elected. It is also h~.<::P.cl on thP. r.on.<::P.nt. of t.hP. p::irt.iP..<:: ::i~ m::inlfi:,~t.P.rl nnclP.r
provj<l.Pd in the Statute that the election of the j11dges
should assure th-9 l'':'prP~Pnt.::it.ion in the Court of the main
~, I!Jid., Art. 9.
~e Ibid., Art. 13.
SB Ibid., Art. 18(1).
48
[bid., Arts. 87, 8~. 60
'
9
Ibid., Art. 92. Ibid., Art. 21(1 ).
61
M Ibid, Art. 93(1). Ibid., A.tts. 22(1), 23( I).
6
51 t Ibid., Art. 25(1).
Ibid., Art. 93(2). 63
52
Statute of the I.C.J., Art. 3(1). Ibid., Art. 26(1).
~ Ibid., Arts. 4, 10(1). s, Ibid., Art. 55(1).
66 :, .;.
s• Ibid., Art. 2. .: -., Ibid., Art. 25(3).
'... :~ j . 6 1.
,16 Ibid., Art. 3(1). " Ibid., Ch~pters II, IV.
! :.l 67
Ibid., Ar ts! 34, 35 ..
r,• U .N. Charter; Art. 10( 1). j. T' •' I. 1:: ~ •

I..
~' ;
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7() INTERNATLON./\L LAw THE UNirEo NATIONS '71

the "optional jurisdiction clause" in Article 36 of the Stat- The Secretary-General also acts as secretary in all
ute and comprises all cases which they refer to it a nd all the meetings of the General Assembly, the Security Coun-
matters especially provided for in the Charter or in trea- cil, the Economic a nd Social Council and the Trusteeship
ties and conventions in force. Adviso1y opinions may be Council and performs such other functions as may be as-
given by the Court upon request of the General Assembly signed to him by these organs. 11 In addition, he prepares
or the Security Council, as well as other organs of the the budget of the United Nations for submission to the
United Nations, when authorized by the General Assem- General Assembly, provides technical facilities to the dif-
bly, on legal questions arising within the scope of their ferent organs of the Organization, and in general coordi-
activities.68 nates its vast administrative machinery.
(f) 'The Secretariat The Secr&tary-General and the members of his staff
are international officers solely responsible to the Organi-
The chief administrative organ of the United Nations zation and are prohibited from seeking or rerP.iving in-
is the Secretariat, which is headed by the Secretary- struction from any government or any other authority
General. The Secretary-General is chosen by the General external to the United Nation~. 12
69
Assembly upon recommendation of the Security Council.
His term is fixed at five years by resolution of the General
Assembly, and he may be re-elected.
The Secretary-General is the highest representative
of the United Nations and is authorized to act in its behalf.
When acting in this capacity, he is entitled to full diplo-
matic :immunities and privileges which only the Security
Council may waive. The immunities and privileges of
other key-officials of the United Nations may be waived by
the Secretary General.
Of great significance is his duty to bring to the atten-
tion of the Security Council any matter which in his opin-
10
ion may threaten international pea~e ~nd !'\ecurity. Such
matter may be personally mediated by him np011 irnt.hority
of the Security Council.

6a U .N. Charter, Art. 65(1); U.N .. Charter, Art. 69.

99
Ibid., Art. 97.
ro Ibid., Art. 99. ·• i , ,
lt =
; 1 .1 Ibid., Art. 98.
1

·..i j(: t U.N.

i
72
. Charter, A.rt. 100.
1j1.H.
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··[f j fI; ·.!J .f.!

Chapter 5
THE CONCEPT OF THE STATE
AS THE BASIC UNIT of the international community, the
state is the principal subject of international law. It is,
therefore, important to understand its concept, the man-
ner of its creation, it.q right.s and resp0nsihilities, the dura-
tion of its existence, aj-;rl t.hP. modes and effect8' 0f it.~ P.x-
tinction.
Creation of the State
The definition and elements of the state have already
been discussed in Chapter 3. It is worth repeating at this
point, however, that an entity acquiring the four essential
elements of people, territory, government and sovereignty
is regarded in law as having achieved the status if a state
and may, therefore, be treated as an international person.
The generally accepted methods by whlch this status is
acquired are revolution, unification, secession, assertion of
independence, agreement and attainment of civilization.
The United States was created as a result of the
revolution against British rule of the thirteen original
colonies that first formed a confederation in 1781 and then
a federation in 1789. The state of Italy grew out of the
unification of the independent city states of Sardinia, Flo-
rence, Naples, Rome and others in 1870 under the so-called
"principle of nationalities.'' Bangladesh became a separate
state when it seceded from Pakistan in 1971. The fourth
method is illustrated by the Philippines, which became
72
1 i1"
\!- ji •
t ,h .i.
• 1. " #\
1'ru;: Cnr..;c.;i,,1, OF T·HF. STATE
,3
a state by assertion of its independonce following tbe for
mal withdrawal therefro111 of American sovereignty in
1946. The Kingdom of the Neth erlands was created by tbe
Congress of Vienna of 18!5, and Poland, more recently,
was revived as a separate atate by agreement of the victo-
rious powers after World War II. Japan is the best exam-
ple of a country that becallle an intern~l:inni:i l pP.rson by
attainment of civilization.
Tlu~ Principle of State ~ontinuity
From the moment of its creation, the state continues
as a juristic being notwithstanding changes in its circum-
stances, pi-ovided only that they do not result in loss of any
of its essential elements. As Fenwick puts it, "Once its
identity as an international person has been fixed and its
position in the internatiotial community established, the
state continues to be the aame corporate person whatever
changes may,,1take place in its international operation and
governmen. t
Thus, reduction of its population owing to, say, a
natural calamity like an earthquake will not cause the
extinction of the state as long as a substantial number of
the people survive. Neithet will loss of part of its territory
provided that the remainder is still sizable. The continuity
of state life is also not imDaired by changes in the form of
government, as when. a republic is conv~rted into a t0tali-
tarian regime, or by replaeement of the chief of' state even
through violent methods. Limitation of sovereignty, as
when an independent state becomes a protectorate, only
reduces it to the status of a dependent state but does not
entire:i:, deprive it of intern.ational personality.
' Fenwick, 158.
~ti,f::
 11
,j
j
74 INTERNATIONA'- LAw
This p1inciple of state continuity, as it is called, was
2
applied in the famous S apphire Case. Louis Napoleon, as
Emperor of France, filed in a California court a civil claim
for damages in connection with a collision between the
French vessel Euryale and the S apphire but W A.S subse··
quently deposed while the case wa.s pending. On the l>:!gal
effect nf this development on th e litigati0r1, t.hP. [ J.S. Su
preme Court h l'lc1 thP. follov,':ing t0 Rl'ly:
The next question is whether the s wt has become abated
by the recent deposition of the Emperor Napoleon. We think it
has not. The reigning sovereign r epresents the national sover·
eignty, and the sovereignt y is continuous and perpetual, re·
siding in the proper successors of the sovereign for the time
being. Napoleon was t he owner of the E uryale not as an indi-
vidual but as sovereign of France. This is substantia lly averred
in the libel. On his deposition the sovereignty does not change
but mer ely the person or persons in whom it resides.
The foreign state is the true and real owner of its public
vessels of war. The reigning Emperor, or National Assembly, or
other actual person or party in power, is but the agent and rep-
resentative of the national sovereignty. A change in such rep·
res entative works no change in the national sover eignty or its
rights. The next successor recogni.zerl by our go·,ernment is
competent to carry on a suit ?l=Any mmroenced and re,;~i.'""
t he fruits of it.
E::irHn~tion o f the State
Neveitheless, it is error oo suppose that a state is
l immortal, for the fact is that it is possible for it to be ex-
''( tinguished, or "die" in a legal sense. For example, the
11, population may be completely wiped out by an epidemic or
fl a t hermonuclear explosion; or it may emigrate en masse.
Tt.s government may b8 overthrov1 n without being replaced,
resulting in anarchy. The state may merge with another
state ·or its territory may be dismembered or annexed by
1
~.
~ ~ ~
i· l
11 Wall. 164.
..;. '·
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.!
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TJ.TP r.rnJ,:,1,• 01· ,_,r,· ·1-.,.: ~1'6'1!.'
75
others. If it is a federation, it may be broken up or dis-
solved by the withdrawal of all its members. In the case of
an independent state that becomes dependent, there is to
the extent that it is deprived of freedom to direct its exter-
nal affairs a partial 1oss of its international personality. In
every one of these instances, there is a radical impairment
or actual loss of one or more of the essential elements of
th"' ~t.ate tfo,1t will rei:;u}t in its ext.inl".ti0n.
Succession of States
The question of state succession will a rise in the
event that a state is extinguished. or is created as a result
of any of the methods previously discussed. State succes-
sion takes place when one state assumes the rights and
some of the obligations of another because of certain
changes in the condition of the latter. 3 Such succession
may be either universal or partial.
There is universal succession when a state is annexed
to another state or is totally dismembered or merges with
another sta te to form a new state. In all of these cases, the
internation dl personality of the former state is completely
absorbP-<l by the Ruccessor. Partial succession takes place
when a portion of the territory of a state secedes or is
ceded to another or when an independent state becomes a
proteotorate or a suzerainty or when a dependent state
acquires full sovereignty.4
Consequences of State Succession
Uprm ~ change of sovereignty as a re..sul t of st.Ate 8UC·
cession, the allegiance of the inhabitants of the predeces-
sor state in the territory affected is transferred to the sue-
..
3
4
Oppenheim-Lauterpacht, 157; _
..t
,,..
Oppenheim-Laut:erpacht, 15,:7{158.-
~
~
t ~ ! ..
._ i ..
 lm' ERNA'I'IONAL T,AVi
76
cessor state. Usually, they are also n aturalized en masse,
as when Philippine citizenship was conferred on the in-
habitants in general of the Philippine Islands under the
provisions of the treaty of cession between Spain and the
United States.
The political laws of the former sovereign are auto-
matically abrogated and may be restored only by a positive
act on the part of the new sovereign. But non-political
laws, such as those dealing with familial relations, are
deemed continued unless they are changed by the new
sovereign or are contrary to the institutions of the succes-
sor state.5
Treaties of a political and even commercial nature, as
well as treaties of extradition, are also discontinued, ex
cept those dealing with local rights and duties, such as
those establishing easements and servitudes. Sometimes
the successor state stipulates in appropriate treaties or by
formal proclamation the international corrunitments it is
willing to respect.
All the rights of the predecessor state are inherited by
the successor state but this is not so where liabilities are
concerned. The successor state, in fact, can determine
which liabilities to assume and which to reject solely on
the basis of its own discretion. For example, contractual
and tort liabilities generally do not devolve on the succes-
sor state, although there certainly is nothing to prevent it
from assuming them. Thus, it was provided in Article
X\11, Section 1(3) of the 1935 Consti~.ution that "the debts
and liabilities of the Philippines, its provinces, cities and
municipalities which shall be valid and subsisting at the
time of the final and complete withdrawal of the sover-
eignty of the United States shall be assun:.~ by the free
l:1.:.-;::
. ;. }
5
People v. Perfecto, 43 P hil. 887.
i
f ~
! l ~ ; . ' ~
itL
fi'¥ ~t .,..
.. £~f
'fnE CrmcEIT or m t S't'A1'E 'l'l
and independent government of the Philippines." On the
other hand, the United States did not assume the debts
pertaining to the Philippine Islands at the time of its ces-
8ion under the Treaty of Paris of December 10, 1898.
In People v. Perfecto, the defendant was prosecuted
for having published an editorial against certa.ln members
of the Senate in violation of Article 256 of the Spanish
Penal (',ode which punished "any person who, by word,
deed, or writing, shall defame, abuse, or insult any Minis-
ter of the Crown or ot.ber person in authority.'· In holding
that the said article was no longer in force riming the
Ar~1f:>ri<>sin rngimP., thP. 8upreme Court declared: ·
Article 256 of the Penal Code is contrary to the genius
and fundamental principles of the American character and sys-
tem of government. The gulf which separates this article from
the s pirit which inspires all penal legislat ion of American 01i-
gin is as wide as that which separates a monarchy from a
democratic republic like that of the United States. This article
was crowded out by implication as soon as the United States
established its authority in the Philippine Islands . Penalties
out of all proportion to the gravity of the offense, grounded in a
distorted monarchial conception of the nature of political
authority, as opposed to the American conception of the protec-
tion of the interests of the public, have been obliterated by the
present system of government in the Islands.
From an entirely different point of view, it must be noted
that this a1'ticle punishes contempts against executive officials,
although its terms are broad enough to cover the entire official
class. Punishment for contempt of non-judicial officers has no
place in a goYemment based upon American principles. Our of-
ficial dass is not, as in monarchies, an agent of some au~.h01'ity
greater than the people but it is an agent ?.11rl. ,;<?•'V.:11)t, nf t.he
people themselves. These officials are only entitled to respect
and obedience when they are acting within the scope of their
authority and jurisdiction. The American system of govern-
ment is calculated to enforce re!ipect and obedience where such
respect and obedience is due, but never does it place around
the individua l who happens to occupy an official position by
i
;:
IL
.
:i ; ..
- ,t " ~•
.l
~ti ~ -llti
- . ! ft
 78 l!\"l'ER.NATlONAL LAV,
mandate of the people any official hal,:,, v;hich calls for ,:1,-,.,::t.ir.
punishment for contemptuous remarks.
Succession of Governments
Rela ted to succession of states is succession of gov-
ernments, where one government replaces another either
peacefully or by violent methods. In both instances, the
integrity of the state is not affected; the state continues as
the same international person except only that its lawful
representative · is changed. Questions of succession will,
therefore, involve only the former and subsequent gov-
ernments and third parties which may be affected by their
relations.
It is well settled that as far as the rights of the prede-
cessor government are concerned, they are inherited in
I toto by the successor government. Regarding the obliga -
i'..· ·, tions, distinction is made according to the manner of the
establishment of the new government.
I~I The rule is that where the n ew government was or-
ganized by virtue of a constitutional reform duly ratified in
l a plebiscite, the obligations of the replaced government are
also completely assumed by the former. Conversely, where
the new government was established through violence, as
!Jll !
by a revolution, it may lawfully reject the purely personal
or political obligations of the predecessor government but
not those contracted by it in the ordinary course of official
business. To illustrate, the cost of arms purchased by the
old government for use against the rebels cannot be
charged against the new governm0nt. On the other hand,
the successor government may be held to the paymen t of
postal money orders purchased by an individual from the
government it has replaced.6
~
U.S. (on behalf of George W.· Hopkins) v. Mexico, Opinion
of Commissioners (1927), 42.
; r
t~ .
;t .....
'T'HR C:oNr.F.FT OF THE STATE 79
The greater part of governmental machinery in every
modern country is not affected by changes in the higher ad-
ministrative officers. The sale of postage stamps, the registra-
tion of letters, the acceptance of money orders and telegrams
(where post and telegraph are government services), the sale of
railroad tickets (where railroads a re operated by the govern-
ment), the registration of births, deaths, and marriages, even
many rulings by the police and the collection of several types of
taxes, go on, a nd must go on, without being affected by new
elections, government cdsis, dissolutions of parliament, and
even state strokes. A resident in Mexico who cleans the gov-
ernment bureaus or pays his school fee to the administration
does not and cannot take into consideration the regularity or
even legality of the present administration and the present
congress; his busi ness is not one with personal rulers, not one
with a specific a dministration, but one with the government it-
self in its unpersonal aspect.
The difficulty of distinguishing between the government
itself and the a dministration of the government a rises at the
point where the voluntary dealings and relations between the
individual and the government agencies assume a personal
character in support of the particular agencies administering
the government for the time being. To this class belong volun-
tary undertakings to provide a revolutionary administration
with money or arms or munitions and the like. But the ordi-
nary agencies, departmente, and bureaus of the government
must continue to function notwithstanding its principal ad-
ministrative offices may be in the hands of usurpers, and in
such a case the sale and delivery to these necessary and le-
gitimate agcnciEis of F-11pp.Ues, merchandise, and the like, to en-
ab:e the government itself in its unpersonal aspect to function
is a very different transaction from one having for its object the
support of an individual or group of individuals seeking to
maintain themselves in office. The character of each transac-
tion mus t be judged and determined by the facts of the par-
ticular ~se.
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RECOGNITION 81

Recognition may be extended by individual states or

Chapter 6
!Iii
RECOGNITION
i.I EVEN IF AN ENTITY has already acquired the elements
of international personality, it is not for this reason alone
il.1 automatically entitled ·to membership in the family of
nations. Its admission thereto is dependent on the ac-
1!911 lmowledgment of its status by those already within the
fold and their willingness to enter into relations with it as
a subject of international law. Obviously, it is accepted as
such only in so far as the states making the acknowledg-
meri t are concerne<l, which means t.hat it is st.ill legally
non-e,-.dstent in the view of all other Rtates. The extent of
its membership in the international community is, there-
fore, dependent on the number of states prepared to admit
it.
The above observations are reflective of the majority
theory that recognition is merely declaratory and only
affirms the pre-existing fact that the entity being recog-
nized already possesses the status of an international
person. As thus understood, recognition is highly political
and discretionary. By contrast, the minority view holds
that recognition is constitutive, meaning that it is the last
indispensable element that converts or constitutes the
entity being rect)gnized in to an inter.national person. Rec-
by a number of them together. In the Philippines, it is the
President who determines the question of recognition and
his decisions on this matter are considered acts of state
which are, therefore, not subject to judicial review. His
authority in this respect is derived from his treaty-making
power, his power to send and receive diplomatic represen-
tatives, his military power, and his right in general to act
as the foreign policy spokesman of the D3.tion. Being essP.n-
tially discretionary, the exercise of these pov,ers mav not be
compelled.
Objects of Recognition
Recognition may be extended to a state, to a govern-
ment, or to a belligerent community. Recognition of a state
is generally held to be i1Tevocable and imports the recogni-
tion of its government. Recognition of a goverrunent, on
the other hand, may be withdrawn and does not necessar-
ily signify the existence of a state as the government may
be that of a mere colony.2 Recognition of belligerency does
not produce the same effects as the rec:l)gniti.on of states
and governments because the rebels are accorded interna-
tional personality only in connection with the hostilities
they are waging. 3
Kinds of Recognition
Recognition may be P-ither express or implied.

'~
!!
ognition in this light is regRrded a~ mandatory and legal Express recognition may be verbal or in writing. It.
and may be demanded as a matter of right by any entity may be extended through a formal proclamation or an-
that can establish its possession of the four essential ele- nouncement, a stipulation in a treaty, a letter or telegram,
1
ments of a state. : :· or on the occasion of an official call or conference. For ex-
;

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Brierly, 1241 ~.i~hop, 232-233. 2
., i
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t" t~ :' Hackworth, 166; Fenwick, 157.

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INTEm,Anor,,r4r. r.,Aw
ample, the state of Israel and its provisional government
were recognized by the United States in a statement re-
leased to the press by President Harry S. Truman on May
14, 1948. The Communist government of Russia, on the
other hand, was recognized by Italy in a treaty concluded
between the two countries in 1924. A simple telegram
sufficed to extend American recognition to Poland after
World War I.
Recognition is implied when the recognizing state en-
ters into official intercourse with the new member by ex-
changing diplomatic representatives with it, concluding
with it a bipartite treaty dealing comprehensively with
their relations in general or, as suggested by some writers,
acknowledging its 4
flag or otherwise entering into formal
relations with it. In the case of a belligerent community,
recognition is implied when the legitimate government
blockades a port held by the former or when other states
observe neutrality in the conflict.'
In every case, it is important that "the act constitut-
ing recognition shall give a clear indication of an intention:
(1) to treat with the new state as such, or (2) to accept the
new government as having authozity to represent the
state it purports to govern and to maintain diplomatfo
relations with jt, or (3) to recognize in the case of insur-
g-p~ts that they RXe ent.itl1:>d tn ~~<:>rcisP. h<:>lligerent rights.'"'
I
Short of such clear intention, dealings with the entity
Jr; in question, as when a fact-finding mission is sent to its
territory or consular officers are stationed or maintained
in it by a foreign state, will not give rise to recognition. 1
• Fenwick, 137.
s Bishop,
261.
6
1
Hackworth, 166.
= Ibid.
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RECOGNITION 83
As to the effect of common membership in an interna-
tional organization of states that have not previously rec-
ognized each other, the view is that they are deemed to
recognize each other only \vi.thin the said body and not
elsewhere. Thus, the Philippines and the Soviet Union for
many years dealt officially with each other in the United
Nations, of which they are both charter members, but did
not otherwise maintain relations outside the Organization
until they exchanged diplom::lt,ir. rP.r.ognit.inn in 197fi
Recognition of States
The recognition of a new state is the free act by which
one or more states acknowledge the existence on a definite
te1Titory of a human society politically organized, inde-
pendent of any existing state, and capable of observing the
obligations of international law, and by which they mani-
fest therefore their intention to consider it a member of
the international community.7a
The recognition of a new state does not present much
difficulty when it is established through peaceful methods,
such as by plebiscite or agreement. For example, recogni-
tion was unhesitatingly extended to Nonvay and Sweden
upon their formal separation in 1905, to Egypt in 1922
when it was declared independent by Great B1itain, and to
the Philippines upon the withdrawal of American sover-
eignty therefrom in 1946. But in the case of the newly~
establii::.he.d United St~te.!3 of America, the remgnition ex-
tended to it by France in 1778 was resented by Great Brit-
ain, which shortly afterwards declared war against the
French. The recognition by the United States of the new
' state of Brazil in 1822 fared better because Portugal, the
parent state, had evidently lost interest in its fonner colony.
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• Art. I. Institute de Droit)l'terpatipnal.
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Recognition of Governments
The recognition of t he new government of a state
which h as been already recognized is the free act by which
one or several states acknowledge that a person or a group
of persons is capable of binding the state which they claim
to represent and witness their intention to enter into rela-
7
tions with them. b
Ac, in t he case of the recognition of states, the recogni-
tion of governments is usually decided mainly on the basis
of political considerations. Premature recognition may
lead t o international misunderstanding if the new gov-
ernment has been established through violent methods.
Peaceful change of government does not pose any problem,
of course. But it is different where the former government
is replaced by force an d the new government thereafter
claims the right to represent the state to the exclusion of
the other . In a case like this, the dejure government might
have cause for complaint if recognition is extended by
other governments to the de facto government.
The three kinds of de facto gover nments are the fol-
lowing:
(1) That which is established by the inhabitants
J~ who rise in revolt against and depose the legitimate re-
gime. Example: the Commonwealth established by Oliver
Cromwel1 which supplanted the monarchy under Charles
I of Engla nd.
(2) That which is established in the course of war by
the invading forr..ei:; of 0ne belligerent in the territory of the
other belligerent, the government of which is also dis-
placed. Example: the J apanese occupation government in
the Philippines which replaced the Commonwealth gov-
ernment during World War II.
t~!
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?L Art. X, ibid.
.... ~,..
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H.RrnGNl'110n 85
(3) That which is established by the inhabitants of a
state who secede therefrom without overthrowing its gov-
ernment. Example: the Confederate government during
the American civil war which, however, did not seek to
depose the Union government.~
Under t he Tobar or Wilson principle, which was ex-
pressed in a treaty of the Central American Republics in
1907 at the suggestion of Foreign Minister Tobar of Ecua-
dor and reiterated in 1913 by President Woodrow Wilson
of the United States, recognition shall not be extended to
any government established by revolution, civil war, coup
d'etat or other forms of internal violence until t he freely
elected representatives of the people have organized a
constitutional government.
A similar inhibition was applied by the Stimson prin-
ciple against governments established as a result of exter-
nal aggression. F ormulated by U.S. Secretary of State
S t imson, it was subsequently adopted by the League of
Nati0n."l ir.. a resolution declaring that it was "incumbent
upon the members of the League of Nations not to recog-
nize any situation, treat y or agreement which may be
brought about by means contrary to the Covenant of the
Le ague of Nations or t o the Pact of P aris."
Disclaiming the right of foreign states to rule upon
the legitimacy of the government of another state, Minis-
ter Genaro E strada of Mexico announced in 1930 a doc-
trine that now bears his name. Under the Estrada doc-
trinP;, tbe Mexican government. declared th~t it would, as it.
sa,v fit, continue or terminate its relations with any coun-
try in which a political upheaval had taken place "and in
so doing it does not pronounce judgment, either precipi-
tately or a. posteriori, regarding the right of for~ign nations
.,·
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l\
INTERNATIONAL T..HI.'
86
to accept, maintain or repl?.t:':" t.hP.ir g<wP.rnments or
authorities."
In any event, the practice of most states now is to ex-
tend recognition to a new government only if it is shown
that it has control of the administrative machinery of the
state with popular acquiescence and that it is willing to
9
comply with its international obligations. The first crite-
rion, which is described as the objective test, simply im-
ports that the government must be able to maintain order
within the state and to repel . external aggression. The
second criterion is a subjective test and may be employed
for the purpose of justifying the withholding of recognition
from a government that is politically unacceptable.
A government satisfying the aforementioned re-
quirements is usually recognized as de jure. If it has not
yet sufficiently demonstrated compliance with these condi-
tions, it may for the time being be recognized as de facto
until it is able to show that it is deserving of de jure rec-
ognition. Where there is no indication of the kind of recog-
nition being extended, the presumption is that it is de ju.re.
The distinctions between the two kinds recognition
are the following:
(1) Recognition de Jure is rel;:i.tively permanent; rP.<'-
ognition de facto is provisional.
(2) Recognition de Jure vests title in the government
to its properties abroad; recognition de facto does not.
(3) Recognition de jure brings about full diplomatic
relations; recognition de facto is limited to certain juridical
10
relations.
.'
9
Fenwick, 159-162. t~
t i ; ~-
, ,. -·
~ of Appeals,. 1921, 38 Times Law Rep., 787-790.
Oppenheim-Lauterpacht, 136-137,~ i_
10
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RECOGUJTIOU ~'7
Effects of Recog'nit.ion. of St;~.f:'="i;:: ~.n.d G•.,v~rnm-ents
Following are the consequences of the recognition of
states and gove1nments:
(1) Full diplomatic relations are established except
where the govemment recognized is de facto. 11
(2) The recognized state or government acquires the
right to sue in the courts of the recognizing state.
Thus, in the case of Russian Socialist Federated So-
viet Republic v. Cibrario, 12 the plaintiff filed suit in an
American court for fraud and breach of a contract it had
entered into with the defendant. In dismissing the action>
the Court held:
We reach the conclusion that a foreign power brings an
action in our courts not as a matter of right. Its power to do so
is the creature of comity. Until such government is recognized
by the United States, no such comity exists. The plaintiff con-
cededly has not been so recognized. There is. therefore, no
propet· party b~fore us. We may add that recognition, and, con-
~e.q•.tP.nt.Jy, th.~ ... ~(.i~ticn~P nf ('llmit,y, ii,_ r•.)f~ly for the determina-
tion of the legislative or executive department of the govern-
of ment. Who is the sovereign of a territory is a political question.
But mere breach of diplomatic relations does not have
the effect of withdrawing the J ight to stu:3, ?.s held by the
U.S. Supreme Court in Banc.o Nacional de Cuba u. San·
batino. 12n
Respondents, pointing to the sev~:rance of diplomatic re-
lations, commercial embargo, and freezing of Cuban assets in
this country, contend that relations between the United States
and Cuba manifest such animosity that unfriendliness is clear,
11
Fenton Textiles Association v. Krassin, Great Britain, Court
12
New York Court of Appeals, 1923, 235 N.Y. 255. ~-~r LI
.,Ont
12
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•· ?7.f> U.S. 398.
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 88 ll'ITl.'1'1l\lA TJONAT. L\w
and that t he courts should be closed to t hf' ~ 11 ~11 Govern
ment.
We do not agree. This Court would hardly be competent
to undertake such assessments of varying degrees of friendli-
ness or its absence, and, lacking some definite touchstone for
determina tion, we are constrained to consider a ny re la tionship,
short of war, with a recognized sovereign power as embra cing
the privilege of resorting to United States courts. Although the
sever ance of diplomatic relations is an overt act with objective
significance in the dealings of sovereign states, we are unwill-
ing to say that it should inevitably result in the withdrawal of
the privilege of bringing suit. Severance may take place for any
number of political reasons, it.c:; dura tion is unpredictable, ancl
whatever expression cf animosity it may imply does n0t "'f'·
proach that implfoit ir "' rl Pdtn a tion of war.
But it is error to suppose that non-suability of the
foreign state or gover nment is a lso an effect of recognition,
as this is a n a ttribute it can claim whether or not it has
been recognized by the local state. The applicable rule is
.
,~··
' the doctrine of state immunity. It has been held that to
cite "a foreign sovereign in the municipal courts of another
I
state" would be "an insult which he is entitled to resent"
and would certainly ''vex the peace of nations.''13
I~ (3) The recognized state or government has a right
f,i to the possession of the proper ties of its pr edecessor in the
territory of the recognizing state. 14
(4) All acts of the rec0gnized stat{'! or government
8.rP, validated ret.rn;:i.ctively, preventing the recognizing
state from passing upon their legality in its own courts.
\3
;
; ;
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,
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De Ha ber v. Qllee:Q of Portuga l, 17 Q.B., 171.
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" Oppenheim-Lal!terpacht, 138-139 .
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.lil::COGUITI01: RI'.)
OETJEN v. C:ENTRAL I,g A'T'HF.H r.o
2'1'3 U.~. W7
Facts: Certain hides in Mexico belonging to X were
seized by the Ca rranza government, then engaged in civil
war, and sold to an Ame rican firm which brought them to
New Jersey. H ere an action for recovery was filed by X on
the ground that the seizure was invalid. At the time of this
seizure, the Carranza government controlled about two-
third$ of Mexico but there was no government in that
country recognized by the United States. However, the
United States, on October 19, 1915, recognized the Car-
ranza regime as a de facto government, and, on August 31,
1917, as the de Jure government of Mexico.
Held: "When a government which originates in
revolution or revolt is recognized by the political depart-
ment of our government as the de Jure government of the
coun try in wh ich it is established, such recognition is ret-
roactive in effect and validates all the actions and conduct
of the government so recognized from the commencement
of its existence. (Williams v. Bruffy, 96 U.S. 176, 178; Un-
derhill v. Herna ndez, 168 U.S. 250, 253)
"The principle tha t the conduct of one government
cannot be successfully questioned in the courts of another
is applicable to a case involving the title to property
brought within the custody of the court, such as we have
here, as it was held to be the cases cited, in which claims
for damages were based upon acts done in a foreign coun-
try, for it rests a t last upon the highest considerations of
international comity and expediency."
Recognition of Belligerency
A belligerency exists when the inhabita~ts of a state
rise up in arms for the purpose of overthro~~g_the legiti-
: •
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!
90 frITERNt,.'I'I0i'!I'' · LAW
mate government. It is to be distinguished from a n insur-
gency in certain important respects. In the first place,
insurgency is the initial stage of a belligerency, which is
more serious and widespread. In the second place, insur-
gency is directed by military authorities whereas belliger-
ency is under a civil government. Finally, insurgency is
usually not recognized wh ereas th ere are settled rules
regarding the recognition _of belligerency.
Generally sp~aking, a belligerency is supposed to be a
merely internal affair of the state and does not produce
much internation al repercussion. The relations between
the state and other states continue to be governed by the
laws of peace and the relations between the forces of the
legitimate government and those of the rebel community
continue to be regulated by their municipal law. Accord-
ingly, any damage caused by the rebels to a third state is
imp1.1table to the legitimate government, and the rebels,
when captured, will be prosecuted as ordinary criminals.
Neither the legitimate nor the rebel government is allowed
to exercise belligerent rights as against other states, which
are entitled to consider them as belonging to one a nd the
same state.
But when the conflict widens and aggravates, it may
be necessary, for practical reasons, to consider the formal
recognition of the belligerent community. Such recognition
is usually extended only where the following conditions
are established:
(1) There must be an organ ized civil gov-?rnHll?Tlt. r:li.-
recting th':' T€"bi>l fm·~f?-!C!
(2) The rebels must occupy a substantial portion of
the territory of the state.
(3) The conflict between the legitimate governmenl
and the rebels must be serious, making the outcome un-
certain.
a Wilson and Tucker, 69.
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RECOGNITION
91
(4) The rebels mm,t hP. vvilling ::inn 11 hlP. to oh!C!i:>rv<:>
~.hA JJ:11111~ nf Wl'll" IS
Con...:.equencP~'i of R ':'ec>gnitio n of Belli~erency
Upon recognition by the parent state, the belligerent
community is considered a separate state for purposes of
the conflict it is waging against the legitimate govern-
ment. Their relations with each other shall, thenceforth
and for the duration of the hostilities, be governed by the
laws of war, and their relations with other states shall be
subj ect to the laws of neutrality. Thus, the troops of either
belligerent, when capttiretl, shall be treated as prisoners of
war, ar.i.d the parent state shall no longer be Hable for a ny
damage that may be caused to third states by the rebel
government. Both belligerents may exercise the right of
visit and search upon neutral merchant vessels. The rebel
government, equally with the legitimate government, shall
be entitled to full war status as regards all other states
and may establish blockades, maintain prize courts and
take other allowable war measures.
·where recogniti.on is exten0.e d by third states, the
above consequences are effective only as to them and do
not bind other states not extending recognition. It is only
where the recognition is made by the parent state that the
effects thereof become general and are legally applicable to
all other states.18
15
;
16
Ibid ., 71-'._72; Fenwick, 145-14_6;
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,111

'
'l'H€ RIGHT OF Ex!STENCE Al'H) SELP-DEFENSF. 93

Chapter 7
'l'HE R.T{jff'I' OF EXISTENCE AND
SELF-DEFEN~R
ONCE A STATE comes into being, it is invested with cer-
tain nghts described as fundamental. These are the right
of existence and self-defense, the right of sovereignty and
11,,1
independence, the 1ight of equality, the right of property
and jurisdiction, and the right of legation or diplomatic
intercourse. · The presence of an "armed attack" to justify the exer-
The most important of these rights is the right of ex-
istence and self defense. It is considered the most compre-
hensive of the attributes of the state because all its other
rights are supposed to flow or be derived from it. By virtue
of this right, the state may take such measures, jncluding
the use of force, as may be necessary to resist any danger
to its existence. Such action being the exercise of an inher-
ent right, it does not depend for its validity on the previous
recognition of the state asserting it or on the consent of
other states.
The right of self-defense has been expressly acknowl-
edged in a number of important agreements, foremost
among which is tJ,e Charter of the United Nations. The
Draft Declara.ti.on of t.he R.ight.s ~nd Duties of States.
which was prepared by the International Law Commission
at the request of the General Assembly, also affirms that
"every State has the right of individual or collective self-
defense."
1IHil
. ~· ·i
92
-tj
:RP'}1.tisites of Right
In 1'.utide 51 of the Charter of the United Nations, it.
is provided that-
Nothing in the present Charter shall impair the
inherent right of individual or collective selfdefense if
any armed attack occurs against a member of the
United Nations, until the Security Council has taken
the measures necessary for the maintenance of inter
national peace and RP.r.urity ..Y. x .r.
cise of the right of self-defense under this article suggests
that forcible measures may be taken by a state only in the
face of "a necessity of self-defense instant, overwhelming
and leaving no choice of means and no moment for delib-
eration."1 Mere apprehended danger or any direct threat to
the state does not, by itself alor:.e, warrant the employment
by that state of any force against a suspected or potential
enemy. The right may be resorted to only upon a clear
showing of a grave and actual danger to the security of the
state, and, furthennore, the self-defensiye measures must
be "limited by the necessity and kept clearly within it.',2
This rather idealistic concept has, unfortunately, not
received wide support if the practice of states i.s any indi-
cation. Although 0-rot.ius v:i.goro1.1sly inveigher:! against
mere anticipation of aggression as a ground for self-
defense,3 it would appear that his view has been eroded by
the more practical consideration that at times "the best
defense is offense." In espousing the opposite thesis, U.S.
Secretary of War Elihu Root declared (and thereby differed
I . ;_ i
Caroline,) ~Whart, Sec. 50. ..4j.
2
Ibid. :, :; 1 '.
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l~l 94 U."TERNATIONAL L,\W
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I
II with a predecessor, U.S. Secretary Daniel Webster, who
years before had argued in favor of the traditional view):
It is well understood that the exercise of the right of self-
~'~
protection may and frequently does extend the limits of the
territorial jurisdiction of the state exercising it. The strongest
example would be the mobilization of an army by another
power immediately across the frontiel'. Every act done by the
other power may be within its te1Titory. Yet the country
threatened by the state of facts is justified in protecting itself
by immedia~e war.
The above remarks, which were made more than half
a century ago, have derived added validity from the ad-
vances of modern science and the development of more
sophisticated methods of warfare. Indeed, the interconti-
nental ballistic missiles have now made it possible for at
least the so-called superpowers to inflict instant devasta-
tion without any previous overt indication of their inten-
tions or even a physical invasion of the territory of the
enemy. One might well argue now that the very state of
armed preparedness of a nuclear power is per se a potent,
if latent, threat to the security of any country with which
l! it may have some differences. Such a country would, un-
der this view, have a right to beat the other to the draw, as
it were, and justify its act under the right of self-defense.
History is replete with instances of the application of
this more pragmatic concept of the right of self-defense.
For example, the mobilization of Russia in 1914 brought
about the immediate declaration of war against it by Ger-
many, which asserted that its security had been imperiled.
Sometimes, even innocent pawns have become the direct
object of hostilities in the interest of actual or claimed
necessity for self-defense, as when Great Britain seized
the Danish fleet in 1807 to prevent it from falling into the
hands of the French with whom the British were then at
w a r. A similar fate befell Korea when it was invaded by
THE RICUT Of EXJSTENCE ANO SELF-DEPJ::NSE 95
Japan in 1904 on the ground that Russia> its enemy then,
also had its eye on the country and might use it as a base of
operations against Japan. For its part, Russia in 1939 in-
vaded the small state of Finland and sought to justify its act
as a strategic measure to defend itself from an anticipated
German invasion. Only recently, the United States at-
tacked Iraq on the ground that it was storing biological and
chemkal weapons of mass destruction that it was intending
to use against the Ame1icans.
'l'he Cuban Missile Crisis
The quarantine established by the United States in
1962, during the Cuban missile crisis, deserves special rec-
ollection. Declaring that "the peace of the world and the
security of the United States (had been) endangered by
reason of the establishment by the Sino-Soviet powers of an
offensive military cap;::ibility in Cuba, induding hases fo1·
ballistic missiles with a potential range covering most of
N01th and South America," President John F. Kennedy
interdicted the delivery of offensive weapons and associated
materials to Cuba, subject to the following instructions:
To enforce this order, the Secretary of Defense shall take
appropriate measures to prevent the delivery of prohibited ma·
terial to Cuba, employing the land, sea, and air forces of the
United States in cooperation with any forces that may be made
available by other American States.
The Secretary of Defense may take such regulations and
issue such di1·ectives as he deems necessary to ensure the effec·
tivenes~ of this N'der, including the dei;ignation, within a rea-
':'01'?hl~ (\;i,t.anr.~ of Cuba, of prohibite-:l or re~tri~t'l.:.J zor1es ancl.
of prescribed routes.
Any vessel or craft which may be proceeding toward
Cuba may be intercepted and may be dil'ected to identify itself,
its cargo, equipment and stores and its po1ts of call, to stop, to
~,,,::
lie to, submit to visit and search, or to proceed a~ directed. Any
vessel or craft which fails or refuses to respond to: cir comply
- .
Im
'liil
qh lmERNA1'lONAL T ·"'W
1i 1: with directions shall be subject to being taken into custody.
Any vessel or craft which it is believed is en route to Cuba and
may be can·ying prohibited material or may itself constitute
flli such material shall, wherever possible, be directed to proceed
to another destination of its own choice and shall be taken into
n custody if it fails or refuses to obey such directions. All vessels
or craft taken into custody shall be sent into a port of the
United States for appropriate disposition.
I In carrying out this order, force shall not be used except
in case of failure or refusal to comply with directions, or with
regulations or directives of the Secretary of Defense issued
hereunder, after reasonable efforts haw~ been made to commu-
nicate t.hP.m t:o t.he vessel or ci·aft, <'r in case of self-defens~. fo
any ca~f\ forr.f'! shall b~ nc:~('1. nnly t.o thP. P.xtent ne~ess::iry.
Fortunately, the USSR backed down and thus
averted the outbreak of what would have been World War
III.
~~I l
i~ii
[ 11 Regional Arrangements
,., !
t.{11
Collective self-defense is recognized not only in Arti-
,11 cle 51 of the Charter of the United Nations but also im-
pliedly in Article VII on RegionAI ArrnngP.mf'mt.(;_ Tn Article
59., SP.(' 1, it lR pmvinP.d that
Nothing in the present Charter precludes the ex-
istence of regional arrangements or agencies for deal-
ing with such matters relating to the maintenanc.e of'
international peace and security as are appropriate
for regional action, provided that such arran.gemrnts
II or agenci~s and their activities are consistent with the
Pumoses and Principles cf the r__rn;t"il. Nntinns.
I An example of such a regional agency is the Organi-
l zation of American States, whose Organ of Consultation
authorized or ratified the action taken by the United
States in_the Cuban crisis. The NATO may also be cited
\~I I
·~1
although it is not strictly regional because of the participa-
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'fHE RrGIIT OP Ex1sn:~:CF. Atlf! SF.LP-DEFENSE 97
tion therein of the United States, which does not belong to
the samP geographical area as th':) otho?r !.1•<:mh,:,r q ThirlP.r
A~·t.irlP 5 of the North Atlantic Treaty-
The Parties agree that an armed attack against one or
more of them in Europe or North America shall be considered
an attack against thE>m all; and consequer!tly they agree that,
if t•uch an armed attack occurs, each of them, in exercise of the
right of individual or collective self-defense recognized by Arti-
cle 51 of the Charter of the United Nations, will assist the
Party or Parties so attacked by taking forthwith, individually
and in concert with other parties, such action as it deems nec-
essary, including the use of armed force, to restore and main
t.ain the securitv of the North Atlantic area.
The Balance of Power
. One reason for the organization of regional arrange-
ments is to provide for the balance of power, which Vattel
described as "an arrangement of affairs so that no state
shall be in a position to have absolute mastery and do-
minion over others.'"'
The Congress of Vienna of 1815, the Crimean Wax of
1854, the Congress of Berlin of 1878, the Triple Alliance
and the Triple Entente before World War I, and the
groupings between the Allied and Axis Powers during
World War II were all motivated by balance of power con-
siderations and ba~ed on the fundamental right of self.
defense.
Until recently, most of the world was p0larizE>d be-
tween the democracies and the communists, each camp
with the potential to destroy the other and the rest of
mankind with it. The NATO countries were eyeball-to-
eyeball with the Warsaw Pact countries. The maintenance
of this balance of power contributed in a very real way to
'Ibid.
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 98 llITE11NATION.o\L LAw
international peace although, being an "armed peace," it
was far from the ideal sought in the articles of faith of the
[ Jnited Nations.
Aggression Defined
Following is the Definition of Aggre.ssinn adopted by
th':.' f}.N ~PnP:rnl Asi-Amhly on n~cember 14, 1974:
Article 1
Aggression is the use of armed force by a State against
the sovereignty, territorial integrity or political independence
of another State, or in any other manner inconsistent with the
r!hin t.Ar of the United Nations. as set out in this Definith:-n.
Article 2
The first use of armed forces by a State in contravention
of the Charter shall constitute prima fade evidence of an act of
aggression although the Security Council may, in conformity
with the Charter, conclude that a determination that an act of
aggression has been committed would not be justifi'=d in the
light of other relevant circumstances, inrludiug the fact that
the acts -:oncem-=d ,:,,;- tlu,ir rm'"'"''l'HmrA~ ATP. not. of i:mfficient
gravity.
Article 3
Any of the following acts, regardless of a declaration of
war shall, subject to and in accordance with the provisions of
Article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State
of the tE\rritory of another State, or any military orcupation,
however temporary, resulting f:.-"'"· i,ucb i.rwi:>si<rn <u aHa r.k or
any annexation by the use of force of the territory of another
State or part thereof;
(b) Bombardment by the armed forces of a State against
the territory of anot her State;
(c) The blockade of the ports or coasts of a State by the
:. -, i' armed forces of another State; ~ ; .. ,
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'T'Hl<'. Rrmn, 0.F' EXISTENC'E AND SEU' DEPENSE
99
Cd) An attack by the armed forces of a State on the land,
sea or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State which are
within the territory of another State with the agreement of the
receiving State, in contravention of the conditions provided for
in the agreement or any extension of their presence in such
territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which
it has placed at the disposal of another State, to be used by
that other State for perpetrating an act of aggression a gainst a
third State;
(g) The sending by or on behalf of a State of fl rmed force
against anot:her St.gte of such gravity as to amount to thR ar.t.s
listed al:Jove. 01 itR suh!';tantial ·;tn:nlve1,..,P.nt there.in.
Article 4
The acts enumerated above arc "1.ot exhaustive and the
Security Cowwil may deterll)illf! tbi;\t ot;'J1~r ""t·" """<,t;t,.tt'= 1:1g-
!!ression under the orff1.isions of tl1P. (;h1:n t.R, .
Article 5
1. No consideration of whatever nature, whether politi-
cal, economic, military 0r other..·ise, may serve as a justifica-
tion for aggression.
2, A war of aggression is a crime against international
peace. Aggression gives rise to international responsibility.
3. No territorial acquisition or special advantage re-
sulting from aggression is or shall be recognized as lawful.
Article 6
Nothing in this Definition shall be construed as in any
way enlarging or diminishing the scope of the Charter, in-
cluding its provisions concerning cases in which the use of force
is lawful.
Article 7
Nothing in this Definition, and in particular Article 3,
could in any way prejudice
. ... ·. the right of self-determination,
~
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 100 h'TERNJ\Tl0 MAL UW

freedom a nd independe nce, as derived from the Charter, of

peoples forcibly deprived of that right and referred to in the
Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation among States in accor-
dance with the Charter of the United Nations, particularly
peoples under colonial and racist regimes or other forms of
alien domination; nor the right of these peoples to struggle to
f~ I!
that end and to seek and receive support, in accorda nce with
the principles of the Charter and in conformity with the above-
mentioned Declaration.
Article 8
In their interpretation and application the ahove provi-
sions lire inte,:related and each pro\ision should be consb uP.<l
in tl1 A cnnt:AYt. nf H, ~ nt.h',',: provision.
Ch::ipter 8
THE RIGHT OF INDEPENDENCE
SOVEREIGNTY is the supreme, uncontrollable power
inherent in a state by which that state is governed. It is
"the supreme power of the State to command a nd enforce
obedience, the power to which, legally speaking, all inter-
ests are practically subject and all wills subordinate."1 In
international law, it is this attribute that enables the state
to make its own decision vis-a- vis other states and vests it
with competence to enter into relations and agreements
with them.
Sovereignty has two aspects: internal and external.
Internal sovereignty refers to the power of the state to
direct its domestic affa irs, as when it establishes its gov-
ernment, enacts laws for observance within its territory,
or adopts economic policies. External sovereignty, on the
other hand, signifies the freedom of the state to control its
own foreign affairs, as when it concludes treaties, makes
war or peace, and maintains diplomatic and commercial
relations. External soverP.ignty is more oft.en referred to .a~
indepP.ncl.ence.

lnP~l. of b1dependence

The right to independence is a natural aspiration of

peoples that. has, albeit onlv lately: rece ived international
recognition. Particularly during the period followi ng the
last World War, a resurgent spirit of nationalism and the
principle of self-determination gave unprecedented impe·

I
Garner, Introduction to Political Science, 238.

~ :t 101 . ~ 1 ;. -;
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 IN T't;RNAT!ONAL LAW
102
tus to the attainment of freedom by a number of colonies
and their s ubsequent admission to the international com-
m unity. It may be said that this trend had its auspicious
beginning with t he establishment of the Republic of the
Philippines in 1946 and its ready recognition by the family
of nations.
The movement toward independence is expressly
supported by the Declarat ion Regarding Non-Self-Govern-
ing Territor ies in Chapter XI of the Charter of the United
Nations. In Article 73, the members of the Organization
administering territories whose peoples have not yet at-
tained a full measure of self-government pledge "to de-
velop self-government, to tak e due account of the political
aspirations of these people, and to assist them in the pro-
gressive development of their free political institutions
according to the particular circumstanc~s of each territory
and its peoples and their varying stages of advancement."
Natnre of Independence
Independence cannot be regarded as importing ab-
solute freedom, for the sim ple reason, as Fenwick states,
that it only means freedom from control by any other state
or group of states and not freedom from the restrictions
that are binding on all states forming the family of na-
tions.2 Like the liberty of the individual who m ust s ubmit
to Hmitations imposed for the welfare of the com1nunity,
tbe independl:lnce of a state is of necP.ssity rn8tricted b:v the
requirements of the international society.
Thus, to cite a few examples, a state may not employ
force or even the threat of force in its relations with other
states because th.is is prohibited by Article 2 of t he Charter
of the United Nations. It may nof:refuse to observe treaties
2
Fenwick, 250.
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TT{E RICIIT OF I NDEPENDENCE 10~
in g:>oc faith in accordance with the maxim pacta sunt
servanda. The principle of mare liberum will prevent it
from arrogating to itself the exclusive use of the open seas
to the detriment of other states. Under the laws of neu-
trality, it must acquiesce in the exercise of certain bellig-
erent rights even if this migh t impair its own interests or
those of its n ationals. Even within its own domain, in fact,
the state must submit to certain limitations on its inde-
pendence, like the rules requiring the maintenance of an
international standard of justice, the observance of fun-
d amental human righ ts, and the restriction of its territo-
rial jurisdiction.
Inten·ention
In addition, the state must abstain from intervention.
Even as it expects its independence to be respected by
other states, so too must it be prepared to respect their
own in dependence. In other words, the right of independ-
ence carries with it, by necessary implication, the correla-
tive duty of non-intervention.
Intervention may be defined as an act by which a
state interferes with the domestic or foreign affairs of an-
other state or states t hrough the em ployment of force or
threat of force. Such force may be physical or, in the pres-
ent state of world affairs, even political or economic. Lack-
ing such pressure, the involvement of a state in the affairs
of another, even if unsolicited, cannt'"\t l-:>e considered i.nter-
vent.ion.
lnterYention is not s~nct-ioned. in international rela-
tions except only when it is exercised as an act of self-
defense or when it is decreed by the Security Council as a
preventive or enforcement action for the maintenance:of .
international peace and security. These are the only; ..twg -"
• ...
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instances, in fact, when the use of force is allowed under-~ j :
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1()4_ IN1'ER.t-1.'\'l'I0NAL LAW
the Charter of the United Nations. Some writers would
add a third justification for intenrention, and this is when
such action is agreed upon in a treaty. Intervention may
also be allowed when requested from sister states or from
the United Nations by the parties to a dispute or by a
state beset by rebellion.
The United Nations itself categorically binds itself
not ''to intervene in matters which are essentially within
the domestic jurisdiction of any state," subject to the excep-
tions just noted. In the U.N. Declaration of the Rights and
Duties of States, it is provided that "every State has the
duty to refrain from intervention in the internal or external
affairs of any other State." The Charter of the Organization
of American States is more unequivocal with the statement
that "no State or group of States has the right to intervene,
directly or indirectly, for any reason whatever, in the inter-
nal or external affairs of any other State. The foregoing
principle prohibits not only armed force but also any other
form of interference or attempted threat against the per-
sonality of the State or against its political, economic or
cultural elements." Furthermore, "no State may use or
encourage the use of coercive measures of an economic or
political character in order to force the sovereign will of
another state and obtain from it advantages of any kind."
Recent events have called for a re-examination of the
law on intervention, especially where intervention is based
on humanitarian grounds. One example is Somalia, where
hundreds of thousands of civilians, including children and
women, were cimght in the ~rossfirB of vvaning factions
that confiscated and appropriated relief goods intended for
the starving population. Revolted by the inhumane plight
of the innocent victims, the United Nations sent a contin-
gent of military .troops from several countries, primarily
the Uni tee( State's;
. . ._• that brought and distributed food and
":';'·
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THE RIGHT or, IrmP.PRNlW"lr.R
105
other kinds of aid with orders to use force if the distribu-
tion of such goods was interfered with by the warlords or
by lawless elements.
Earlier, as previously noted, a similar military con-
tingent was organized by the United Nations but not for
humanitarian reasons. This was when Iraq invaded and
occupied Kuwait in 1991 and the forces of the world or-
ganization, also led by the United States, turned back the
aggressor and later required it to reduce its weaponry,
including its nuclear capability, as a precaution against
future aggression.
ThA nl'ago Doctrine
In 1902, Great Britain, Italy and Germany estab-
lished a blockade against Venezuela in order to force it to
comply with certain contractual and other obligations
owing to the blockading powers. This action was the sub-
ject of universal disapprobation and led to the formulation
by the Foreign Minister of Argentina of what is now popu-
larly known as the Drago doctrine. This doctrine was em-
bodied in the Hague Convention of 1907 through the pro-
vision that "the Contracting Powers agree not to have
recourse to armed force for the recovery of contract debts
claimed from the government of one country by the gov-
ernment of another country as being due to its nationals."
The force of this rule was later dissipated by the Por-
ter Resolution, nnder whicl, interv':lntion was pennitted if
the debt0r st9.te -refused a!, off~r to arbitrate the creditor~s
<;laim, or having agreed to arbitrate, prevented agreement
on the compromis, or having a.greed thereto, refused to abide
by the award of the arbitrator. Neve1tlieless, it is doubtful if
this qualification can be sustained now in light of the out-
""
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lawry of force by the Charter of the United Nations.
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 T HE RIGHT OF Ec.mALID'" 107

What is meant by the principle of equality, strictly

f'.lu~.rt'7'-r' ~ speaking, is that all the rights of a state, regardless of their
'T'llF. RIGHT OF EQUALITY
ri.
I{ IN ARTICLE 2 of the Charter of the United Nations, it is
announced that "the Organization is based on the principle
of the sovereign equality. of all its Members." This is a rec-
ognition of what has beendescribed as "an early premise of
international law."1 The principle is more fully fleshed out
in the provision of the Montevideo Convention of 1933 that
"states are juridically equal, enjoy the same rights, and
have equal capacity in their exercise. The rights of each one
do not depend upon the power which it possesses to assure
its exercise, but upon the simp]P. fad nf ib: H'll'ii:i.t.P.n~P A~ A
·I"
person under international lavl'."
Essence of Equality
As understood in international law, equality among
states does not signify parity in physical power, political
influence or economic status OT prestige. This is impossible
in the nature of things inasmuch as states, like individuals,
are necessarily subject to different conditions or circum-
stances that may preclude their uniform treatment in their
interrelations. Indeed, equality does not even require
equality in the number of rights since it is possible for one
state to be vested with more rights than another, e.g., a
coastal state like China would have a right to a territorial
sea as distinguisherl from a sta.ti? "0•npl1:>t':.'ly sun:ounded by
land, like Bolivia or Afghanista n.
'Wilson and Tucker, 100.
;.
106
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number, must be observed and respected by the interna-
tional conununity in the same manner that the rights of
other states are observed and respected. In short, all states,
big or small, the powerlul as well as the weak, have an
equal right to the enjoyment of all their respective attrib-
utes as members of the family of nations.
Accordingly, all members of the United Nations have
each one vote in the General Assembly, all votes having
equal weight, and are generally eligible for positions in the
various organs of the United Nations. Every state has the
right to the protection of its nationals, to make use of the
open seas, or to acquire or dispose of territory. When in-
volved in war, a small state like the Malagasy Republic
would have the same right as China or the United States to
punish the cani.age of contraband or to have its captured
combatants treated as prisoners of war. Under the rule of
par in parem non habet imperium, even the strongest state
cannot assume jurisdiction over another state, no matter
how weak, or question the v£i.lidity of its acts in so far as
they are made to take effect witJ.in its own territory. All
states, including the smallest and the least influential, are
also entitled to their dignity and the protection of their
honor and reputation.
Legal Equality v. Factual Inequality
But ev17,n frnm the viP,wpoint of strictly legal rules, it
is apparent that absolute equality among states is still a
distant and well nigh impossible as piration. Under the
Charter of the United Nations, for example, non-proce-
dural questions are decided by the Security Council only
with the concurrence of the Big Five, any of which may
, ~ defeat a proposa} through the exercise of the veto. This is
. ,. i '
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108 ltrrEHNA'r·rnN4 r. L AW
true also with respect to the ratification of any proposal to
amend the Charter. Moreover, as previously emphasized,
this same group of states is entitled to permanent member-
ship in the organ, in contrast with all the other members,
which are elected for a term of only two years and are not
even eligible for irrunediate re-election.
With regard to the elective membership of the Security
Council, not all states have equal eligibility therefor, as it is
11~I, provided in the 1965 amendments to the Charter that such
members are to be distributed, and not equally at that,
~I
among several specified regions. Thus, five of them must be
elected from the African and Asian states and only one can
come from the East.ern European states.
There is much to be said for the proposition that all
states, regardless of their relative prestige and power in the
international community, must be equal in the enjoyment
of whatever rights they may be entitled to. But this rule of
equality itself sometimes poses serious questions of ine-
quality. This is so because it does not take into account the
realities of international life, including the greater stakes of
the more populous stat.es in the decision of questions in-
volving the entire corrununity of nations. Such decisions
may affect the interests, not of individual states as such,
but of the whole of humanity itself without distinctions as
to color, nationality or creed.
In the General Assembly, for example, all members
have one vote regardless of the number of people they sepa-
rately represent, with the result that the decision of India,
which has a p()pulation of almost one billion, would have
the same force, legally speaking, as th~ vote cast by G~bon,
the population of which is on1y about 1.1 million. The rea-
son is that the right to vote, and to only one vote each, is
granted to the member-states as such instead of being ap-
portioned ~.IIfO}li( ~hat the Preamble to the Charter itself
calls "the peoples bf the United Natfons."
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11
Chapter 10
TERRITORY
TERRITORY has already been defined as the fixed portion
of the surface of the earth inhabited by the people of the
state. The territory must be permanent and indicated with
precision because its limits generally define the jurisdic-
tion of the state. As previously observed, the tenitory
must be big enough to provide for the needs of the popula-
tion but should not be so extensive as to be difficult to
administer or defend from external aggression.
The right to acquire territories is regarded as one of
the fundamental attributes of the state. Under our Consti-
tution, authority to exercise the same may be inferred
from the war powers of the Congress and the treaty mak-
ing power of the President. Needless to say, this right can
be asserted only in accordance with the generally accepted
principles of international law and always with due regard
for the territor.iF.tl integrity of othflr sta tes.. The Philippine~
is committed to the renunciation of war for territorial ag-
grandizement but, like other states, is not precluded from
acquiring additional territories through any of the meth-
ods permitted under the law of nations.
Acquisition and Loss of Territory
Territory may bP. ar,quired by dfacovery and occupa-
tion, by prescription, by c8ssion, by guhj1.1g~tjon, and by
accretion. It may be lost by abandonment or dereliction, by
cession, by subjugation, by prescription, by erosion, by
revolution, and by natural causes.
109
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110 lNTERNA1'IONAJ, f ,AW
Oiscovery and o,:,:mpt:tt.ion
Discovery and occupation is an original mode of ac-
quisition by which territory not belonging to any state, or
terra nullius, is placed under the sovereignty of the dis-
covering state. The territory need not be uninhabited pro-
vided it can be established that the natives are not suffi-
ciently civilized and can be considered as possessing not
rights of sovereignty but only rights of habitation. Thus,
the discovery and ·occupation of the Philippine Islands in
1521 was justified on the ground°· that the inhabitants at
the time did not have a degree of civilization regarded as
sufficient by European standards. The same justification
was made in the case of the colonization of Africa and the
Americas.
Like the open seas, outer space is res communes and
not susceptible to discovery and occupation. According to
the Treaty on the Exploration and Use of Outer Space,
outer space, i:n.cl11ding the moon and otb'3r celestirtl hodies,
is not i:tubjP.ct t.o :ni:it.ienal appropriat.ion by cl::iim of sover-
eignty, by means of use or occupation, or by any other
means.
(a) Requisites
There are two requisites of a valid discovery and oc-
cupation. The first is possession and the second is admini-
stration. Possession must be daimed on behalf of the state
represented by the disroverer ::.nrl may be eff13ded through
a formal proclamation and the symbolic act of raising the
national flag in the territory. But mere possession will not
suffice, as only an inchoate title of discovery is acquired by
the claimant state pending compliance with the second
requirement., which is the administration of the territory.
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TERRITORY 111
The inchoate title of discovery performs the function
of barring other states from entering the tenitory until the
lapse of a reasonable period within w:hich the discovering
state may establish a settlement thereon and commence to
administer it. If the claimant state begins exel'cising sov-
ereign rights over the territory, the inchoate title ripens
and is perfected into a full title. Otherwise, the inchoate
title will be extinguished and the territory will become res
nullius again.
In the Island of Palmas Case, 1 title was disputed be-
tween the United States and the Netherlands to an island
situated within the boundaries of the Philippine Archipel-
ago as ceded to the former by Spain under the Treaty of
Paris of December 10, 1898. The United States based its
claim primarily on the 1ight of discovery of the island by
Spain, while the Netherlands asserted that it had pos-
sessed and exercised Rovereignty over the islands since
1677, or even earlier, b-v v,rtul':l of consenti,ms \\'1th the
native princes.
While conceding that "the original title derived from
discovery belonged to Spain," the arbitrator nevertheless
held inter alia:
Discovery alone, without any subsequent act, cannot at
the present time suffice to prove sovereignty over the fa·land of
Palmas (or Mie.ngas).
... Even admitting that the Spanish title still existed as
inchoate in 1898 and must be considered as included in the
cession under Article III of the Treaty of Paris, an inchoate ti-
tle could not prevail over the continuous and peaceful display
of authority by another state for such display may prevail even
over a prior, definitive title put forward by another state.
·~ ~ ...
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lmERNATIONAL LA\V
11?.
In the Clipperton Island Case, however, title was
2
deemed acquired by France over an island it had formally
claimed but had never administered. The facts showed
that a French Navy lieutenant, "cruising about one-half
mile off Clipperton, drew up, on board the commercial
vessel L'Admiral, an act by which, conformably to the
orders given him by the Minister of Marine, he proclaimed
and declared that the sovereignty of the Raid island begin-
ning from that date belonged in perpetuity to His Majesty
the Emperor, Napoleon III, and ,to his heirs and suci::es-
sorn." Thereafter, the vessel put off "-"'rithout lea11ing in the
island any sign of sovereignty."
Finding that the island was terra 1111.l lius at tbl'll:
time, the arbitrator held in part:
It is beyond doubt that by immemorial usage having the
force of law, besides the animus occupandi, the actual and not
the nominal taking of possession is a necessary condition of oc-
cupation. This taking of possession consists in the act, or series
of acts, by which the occupying state red uces to its possession
the territory in question and takes steps to exercise exclusive
authority there. Strictly speaking, and in ordinary cases, that
only takes place when the state establishes in the territory it-
self an organization capable of making its law respected. .. . .
If a territory, by virtue of the fact that it was completely unin-
habited, is, from the first moment when the occupying state
makes its appearance there, at the absolute and undisp11ted
p,.,,..<;J?.ssio:-1'. ,:,f that st~~.e. from that moment the taking rif pos-
session is considered accomplished and the occup? tim, is for
mally completed.
(b) Dereliction
Ti:>1-ritory is lost by dP.reliction when the state exP,r-
cising· sovereignty over it physically withdra wP. from it
with the intention of abandoning it altogether. Two condi-
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TERR[TORY 113
tions must concur, namely, the act of withdrawal and the
,ntention to abandon.
Where, for example, the forces of the state are driven
away from the territory by the natives, title is not thereby
necessarily forfeited, as it may be that they intend to re-
t urn with the necessary reinforcements to suppress the
resistance.
Of course, a different conclusion must be reached if
such an intention is not present and it is, on the contrary,
p1ain that the sta te wishes to relinquish all claim to the
territory. In this case, the territory itself becomes res nul-
lius or terra nullius, becoming open once again to the ter-
ritorial ambitions of other states.
Prescription
The suggestion in the Palmas Case is that, even on
the assumption that Spain had validly discovered and
occupied the territory in dispute, the Netherlands could
nevertheless be regarded as having acquired the same by
virtue of prescription since it had been exercising sover-
eign rights over the disputed island for more than two
hundred years after its discovery by Spain, and the latter
had not interposed any objection during all that time. As
in municipal law, prescription in international law re-
quires long, continued and adverse posse.c;.i;;ion t,n VP-c;t a~-
quisitive title in the claimant. Significantly, however,
there is as yet no rule in international law fixing the pe-
riod of possession necessary to transfer title to the terri-
tory from the fo1111er to the subsequent sovereign.
Cession
Generally speaking, cession is a method by which ter-
·i ritory is transferred from one state to another by agree-
' :i:
ment between them. While if is true that there is such a
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 114 I m ERNATIONAL LI\W 'fEP..RITORY 11 5

concept as forced cession, acquisition of territory by ces-
sion is usually effected by such familiar transactions as
sale, dona tion, barter or exchange, and even by testamen-
tary disposition.
Examples are the purchase by the United States of
Alaska from Russia in 1867, the gift by Austria of Lorn
bardy to France in 1859, and the exchange between Great
Britain and Ger many.of the island of Helgoland and the
territory adjoi~ing German East Africa in 1890.
Cessinn being egsentially .consensual, transfer· of title
is effected upon the meeting of the minds of the parties
a nd does not have to bide the actual delivery of the ceded
territory to the acquiring state.
of the country through the action of the water or, more
effectively, by reclamation projects like those undertaken
in Ma nila Bay and the polders of Holland. Accretion also
covers the formation of islands, which, if occurring within
the maritime belt of the state, correspondingly extends the
breadth of its territorial sea. 3
In this connection, it should be noted tha t territory
may also be lost as a result of the operation of nature, as
when an island is submerged to the bottom of the sea be-
cause of a volcanic eruption. It is probably already possible
at this time to achieve the same effect through a massive
bombardment or some such man-made method of destruc-
tion.

Subjugation Components of Territory

Territory is deemed acquired by subjugation when,
having been previously conquered or occupied in the
course of war by the enemy, it is formally annexed to it at
the end of that war. Conquest alone confers only a n incho-
a te right on the occupying state; it is the formal act of
annexation that completes the acquisition.
Hence, during the Japanese occupation of the Philip-
pines, sovereignty over our country did not pass from the
United States simply bec~.use of its inability to exercise it.
By contrast, Ethiopia fell under 1ta1ian sovereignty when,
.after its occupation by Italy during the war between them,
it surrendered to and was formally annexed by the latter
in 1935.
Accretion
'I'he territory of the state consists usually of the ter-
restrial domain, the maritime and fluvial domain, and the
aerial domain. Some states, 1ike the Philippines, also
claim the continental shelf as part of their territory.
(a) The Terrestrial Domain
The teITestrial domain refers to the land mass, which
may be integrate, as in the case of Iran, or dismembered,
as in the case of the United Stl:l.tes, or partly bounded. by
wa ter like Burma, or consist of one whole island like Ice-
land. It may also be composed of several isla nds, like the
Philippines and Indonesia, which are known as mid-ocean
archipelagoes, as distinguished from the coastal archi-
pelagoes like Greece.

Accretion is a mode of acquiring territory based on

the principle of accessio cedat principali . . It is accom- ., , ..J
plished through both natural or artificial processes, as by --
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 • "~ - 1rn INTERNATIONAL LA\\' T EP.HJ'I":)RY
117

(b) 'l'hP. Maritime and FlnviAl nomain
The maritime and fluvial domain consists of the bod-
ies of water within the land mass and the waters adjacent
to the coasts of the state up to a specified limit. This in-
cludes the internal waters in the land-locked lakes, the
rivers a nd man-made canals within th':) hnd mass, and in
cert~n bays, gulfs and st:r:J:1it-.c:, RR well as the ex~r.Ti~l w::i-
ters in th~. territor is:il sea.
(1) Riv1:>.,..~
Rivers may be classified into national, multi-national,
' international, and boundary. National rivers are those,
like the P asig River, that are situated completely in the
tenitory of one state as distinguished from the multi-
national rivers, like the Congo River in Africa and the
Mekong River in Asia, that flow through the territories of
several states. An international river, like the Rhine and
the Danube, is one that is navigable from the open sea and
is open to the use of vessels from all states.
Of special interest is the boundary river, like the St.
Lawrence River between Canada and the United States,
that divides the territories of the riparian states. In the
absence of a specific agreement between such states, the
boundary line is laid on the river according to the thalweg
doctrine, that is, on the center , not of the river itself, but of
its main channel
Where the bouT1dary river c~1anges its cowse by a
gradual a nd no'f!tJ.al procesR, such as J:Jcr.retion or erosion,
the dividing line follows the new course; but if the devia-
tion is violent and abrupt, as by avulsion, the boundary
line will continue to be laid on the old bed of the river, in
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of
the absence a contra ry agreement. As for ;the dividing
line on a bridge across a boundary river, t~ef a'."e is laid
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on the middle of the bridge regardless of the location of the
channel underneath, unles~ othArwi.c:P. prn1; irlPrl hy th~
riparian states
(?,) Rtly~
A bay is a well-marked indentation whose penetra-
tion is in such proportion to the width of its mouth as to
contain land.Jocked waters and constitute more than a
mere curvature of t he coast. An indentation shall not,
however, be regarded as a bay unless its a rea is as large as
or larger than that of a semi-circle whose diameter is a
line drawn across the mouth of th at indentation.4
If the distance between the low-water marks of the
natural entrance points of a bay does not exceed twenty-
four miles, a closing line may be drawn between these two
low-water marks, and the waters enclosed thereby shall be
considered internal waters.~
The above rules do not apply to the so-called historic
bays,6 whose waters have a lways been considered internal
by the intermi.tio11.al community notwithstancljng that
their opePing.$ are morn than tweuty-four mi1':'s in width.
Examples of historic bays are the Bay of Cancale in
France, the Bay of El Arab in Egypt, Chesapeake Bay in
the United States, Hudson Bay in Canada and the Zuyder
Zee in Holland.
(3) The Territorial Sea
The territorial s-9a may bP. de~crihed as the belt of wa-
ters adjacent to the coasts of the sta te, excluding the in-
• Convention on the Territorial Sea and t he Contiguous Zone.
1958, Art. 7(2). t l j i }..
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1 lR OOERNATJONAL l..Aw
ternal waters in bays and gulfs, over which the state
claims sovereignty and jurisdiction.
Traditionally, the breadth of the territorial sea was
reckoned at three nautical miles, or a marine league, from
the low-water mark. This rule was based on the range of
cannon at the time 1t was first proposed by the Dutch
publicist Bynkershoek, on the theory that a state could
claim only so much territory as it could defend.
However, many states later extended their territorial
seas, so that no uniform rule could be regarded as estab-
lished in this regard. Countries with big navies under-
standably adhered to the traditional limit. Some states, like
India and Greece, claimed six miles, and others, like Russia
and Greenland, insisted on twelve miles. Chile and Peru
claimed up to t\ivo hundred miles, while archipelagoes in
general asserted that a different regime should be applied
\\,jth respect to t.hem. Others, like Argentinll and Nica't'a-
gua, claimed the seas above their continental shelves, to an
unspecified lirrµt, as part of their maritime belt.
(4) The UN Conferences on the Law of the Sea
Three international conferences have been called to
formulate a new law of the sea. These conferences have
dealt with such controversial matters as the breadth of the
territorial sea, the use of straits for international naviga-
tion, the continental shelf, the concept of an exclusive eco-
nomic zone, the freedom of the high seas, the status of
archipelagoes and regime of islands, and others.
The first conference was held in 1958 at Geneva,
Sv.>itzerland, and resulted in the adoption of the Conven-
tion on tbe Territ:or:ial Sea and the Contiguous Zone, the
Convent.ion ~n the High- Seas. a,\d the Conv€'ntion on
Fishing and the Living Resources of the High Seas, and
the Convention on the. C9ntinental Shelf. It failed, how-
Tul?Rl'I'n1~1i
1 rn
ever, to define the breadth of the territorial sea; and,
moreover, the Conventions adopted therein were ratified
by only forty states. The Philippines did not ratify because
of the absence of provisions recognizing the archipelago
doctrine it was advocating.
The second conference, which was held in 1960, also
at Geneva, likewise left unresolved the question of the
breadth of the ten-itorial sea.
The third conference, called in 1970 by the United
Nations, resulted finally in the adoption of a new Conven-
tion on the Law of the Sea, which was signed in Jamaica
in 1982 by 119 of the 150 conferee-states. This Convention
became effective on November 16, 1994, after its ratifica-
tion by more than the required 60 of the signatory states.
The new Convention provides among others for a uni-
fonn brP.adth of twelve miles for the territorial sea, a con-
tiguous zone of twelve miles fr')m the outer limits of the
territorial sea, and an economic zone or patnmonial sea
extending two hundred miles from the low-water mark of
the coastal state.
(5) The Philipoine Territorial Sea
The claim of the Philippines to its territorial sea was
based on historic right or title or, as it is often called, the
treaty limits theory.
The Philippines invoked the sovereignty exercised by
Spain more than three centuries over the Philippine ar-
chipelago, including the waters adjacent to the islands
beyond the traditional three-mile limit. These waters were
embraced within the latitudes and longitudes specified in
the Treaty of Paris of December 10, 1898, by virtue of
which Spain ceded the entire archipelago to the ·united
·' ~tates. Tpe United States, as transferee, asse~ ~over~
'e ignty over auch waters as Philippi~e ten·~~ri~l 'st!:fSi ~ ' sp
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120 {i'iTERNATlONAL LAW
too did the Republic of the Philippines when it -acquired
title to the whole archipelago on July 4, 1946.
Our position was that international law should rec-
ognize historic title to territorial waters as it recognizes
the so-called historic bays. Accordingly, the territorial sea
of the Philippines should embrace all the non-internal
waters comprised within the limits set forth in the Treaty
of Paris, and other applicable laws, over which the Philip-
pines and its predecessors in interest have been exercising
sovereign rights for several hundred years without objec-
tion from other states.
However, the new Convention on the Law of the Sea
now limits our tenitorial sea to twelve miles from the low-
water mark of our coasts, as in the case of other states.
(6) The Archipelago Doctrine
The Philippine position on the definition of its inter~
nal waters is commonly known as the archipelago doc-
trine. •rrus is articulated in the second sentence of Artic.lP.
I, Sec. 1 of the 1987 C0t1Etituti011, which follows:
The national territory comprises the Philippine archipel-
ago with all the islands and waters embraced therein, and all
the other territories over which the Philippines has sover-
eignty or jurisdiction, consisting of its ten·estrial, fluvial, and
aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The
waters around, between and connecting the islands of the ar-
chipelago, regardless of their breadth and dimensions, form
part of' thr, internal water$ of the Philippines.
As t.hu~ dP,fjn,P.d, our 11ational territory comprehends
as many as 7,100 islands of varying sizes connected by
waters of diverse dimensions. Our position is that all these
islands should be considered one integrated whole instead
of being fragmented into separate units each with its own
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'fEHRIT'.)l{Y 121
territorial sea. Otherwise, the waters outside each of these
territorial seas wi11 be regarded as high seas and thus be
open to all foreign vessels to the prejudice of our economy
and the national security.
An archipelago is a group of islands, including parts
of islands, interconnecting waters and other natural fea-
tures which are so closely mterrelated that such islands,
waters and other natural features form an intrinsic geo-
graphical, economic and political entiL-y, or which histori-
cally have been regarded as such.
Hence, in defining the internal waters of the archi-
pelago, straight baselines should be drawn to conned ap-
propriate points of the outermost islands without depart-
jng radically from the general direction of the coast so that
the entire archipelago shall be encompassed as one whole
territory. The waters inside these baselines shall be con-
sidered internal and thus not subject to entry by forejgn
vessels without the consent of the local state.
This theory was advocated by the Philippines, Indo-
nesia, the Mauritius, r1ji, and the Bahamas, all archi-
pelagic states, and gained the support of the Organization
for Afric~n Unity, a number of Latin American states,
Greece, Malta, Thailand, and the People's Republic of
China.
The archipelago doctrine has been embodied in the
1982 Convention on the Law of the Sea, with the modifica-
tion that archipelagic sealanes shall be designated over
the internal waters throngh whic.h fornign vessels shall
have the right of passage.
(7) Basis of Article I of the 1987 Constitution
Article I of the 1987 Constitution was based .o n RA
No. 3046, as amended by RA. No. 5446, which declares as
follows:
, '
122 INTERNATIONAL LAw
I All the waters within the limits set forth in the
Trealy of Paris of December 10, 1898, between Spajn and the
United States, the Treaty of Washington of November 7, 1900,
also between the two countries, and the Treaty concluded by
the United States and Great Britain on January 2, 1930, have
always been regarded as part of the territory of the Philip-
pines.
2. All the waters around, between, and connecting the
various islands of the Philippine archipelago, irrespective of
their width or dimensibn, have always been cons idered as nec-
essary appurtenances of the land territory, forming part of the
of
inland or internal waters the ,Philippines.
3. All the waters beyond the outermost islands of the
archipelago but within the limits of the boundaries set forth in
the aforementioned treaties comprise the territorial sea of the
Philippines.
4. The baselines from which the territorial sea of the
Philippines is determined consist of straight lines joining ap-
propriate points of the outermost islands of the archipelago.
The definition of the baselines of the territorial sea of the
Philippine archipelago is without prejudice to the delineation
of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of
the Philippines has acquired dominion and sovereignty.
(8) Metho<ls ()fDefining the Territorial Sea
The territorial sea may be defined, regardless of its
breadth, according either to the normal baseline method
or to the straight baseline method.
Under the normal baseline method, the territorial sea
is simply drawn frow the low-watP.r mark of the coast, to
t.he hreadth claimed, following its sinuosities and curva. ·
tures but excluding the internal waters in bays and gulfs.
Under the straight baseline method, straight lines
are made to connect appropriate points on the coast with-
out departing radically from its general direction. This
method may be employed in localities where the coastline
Tt,; m~ n v~'RY
123
is deeply indented or if there is a fringe of islands along
the coast in the immediate vicinity.1 In either case, ac-
count may be taken, in determining particular baselines
of economic interests peculiar to the region concerned, the'
reality and importance of which are evidenced by Jong
8
usage. Waters on the landward side of the baselines of the
territorial sea form part of the internal waters of the
state.9
In the famous Fisheries Case, 10 the United Kingdom
questioned the use by Norway of the straight baseline
method in defining its territorial waters. The Interna-
tional Court of J ustice held that it was "led to conclude
that the method of straight baselines, established in the
Norwegian system, was imposed by the peculiar geogra-
phy of the Norwegian coast; that even before the dispute
arose, this method had been consolidated by a constant
and sufficiently long practice in the face of which the atti-
tu.d~ of governrneut~ b8ars witness to the fact that thP.y
did not consider it to be contrary to infa:~rn::it.irmj:11 law.~
{~) The Aerial Domain
The aerial domain is the airspace above the terrestial
domain and the maritime and flu.vial domain of the state,
to an unlimited altitude but not including outer space.
Both the Paris Convention on Aerial Navigation, which
was signed on October 13, 1919, and the Chicago Conven-
tion on International Civil Aviation , concluded on Decem-
ber 7, 1944, began with the express recognition that every
state "has complete and exclusive sovereignty over the
airspace above its territory." Where the upwru:d limits of
1
Ibid., Art. 4(1), (2).
8
lbi,d., Art. 4(4). ;..l,f~}:
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"Ibid., Art. 5(1) .
10
;,,1· i h·
I.C.J. Report::i (1951) 116.
~ ·;.,;! ·»·t1h
 lNTERNATIOaAL f ,AW
124
the aerial domain ends i~ a nother m!:lti".P.T, howeYer,
f::nggP-sted by the fnllowing rem'°'rkR:
Under the tenns of existing international conventions
and customary international Jaw, States have complete and ex-
clusive sovereignty in the airspace above their territories and
territorial waters. The concurrent existence of a region in space
which is not subject to t he same regime raises such q1J~st.ions
as where airspac:e ends and where outer space begiM Tt. was
noted tb<>~. t.h P.se limits de :nnt. nP.cessarily coineiAP "
11Report of U.N. ad hoc Commil;t® on Peaceful Use of Outer
Space, July 14, 1959.
.,
.·. _i
A~
Chapt':"r 11
JURISDICTION
JURISDICTION is the authority exercised by a state over
persons and things within or sometimes outside its teni-
tory, subject to certain exceptions. Generally speaking, it
may be classified a.s either personal or territorial. More
spP.Ci.fically, jurisdiction may be exercised by a state over:
(a) its nationa ls; (b) the terrestr ial domain; (c) thP roari-
time and fluvial domain; (d) the continental shelf; (e) the
open sea s; (f) the aerial domain; (g) outer space; and (h)
other territorie.s.
Personal Jurisdiction
Personal jurisdiction is the power exercised by a state
over its nationals. It is based on the theory that a national
is entitled to the prntection of his state wherever he may
be and is, therefore, bound t.o it by a duty of obedience and
allegiance. This duty follows him even when he is outside
the territory of his state and he may not ordinarily be
excused from it unless he is prepared to renounca his own
nationality. At that, some states do not even allow this
under the doctrine of indelible allegiance. The fact that
persom!.l jurisdiction is not easy to enforce does not, of
course. detract from the lBgfl.l po·wer posBess~d hy the state
over it:: nationals abroad.
An example of the assertion of its personal jurisdic-
tion by the Republic of the Philippines is found in Article
of
15 the Civil Code, which provides that '1aws relating to.
family rights and duties, or to the status, condition and.
125
..
126 TNTF.RNATIOtrJ\J, LA\ll
legal capacity of persons, are binding upon citizens of the
Philippines, even though living abroad." Another is Article
16, under which "intestate and testamentary succession,
both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity
of testamentary provisions, shall be regulated by the na-
tional law of the person whose succession is under consid-
eration, whatever may be the nature of the property and
regardless of the country wherein said property may be
found." Jurisdiction to tax our citizens, even if not residing
in the Philippines, is also provided for in our Revised In-
ternal Revenue Code for income received by them "from all
sources.''1
In Joyce v. Director of Public Prosecution, 2 the defen-
dant, better known as "Lord Haw Haw," challenged his
conviction in Great Britain for high treason, contending
that be was not a British subject. It appeared that he had
lived in the country for eighteen years and had misrepre-
sented himself as its national for the purpose of obtaining
a British passport that enabled him to go to Germany, for
which he subsequently broadcast anti-Allied propaganda.
The House of Lords, in aflirming the decision, held that
although he was admittedly not a British subject, he had
nevertheless "by his own act . . . maintained the bond
which while he was within the realm bound him to his
Sovf\reign."
Indeed. e,,en ",ithout such special circumstances as
were established in that case, an alien may be held subject
to the laws of a state whose national interest he has vio-
lated, a nd notwithstanding that the offense was commit-
ted out.side its territory. Article 2 of our Revised Penal
Code, for instance, punishes any person who, whether in
1
Sec. 21.
2
House of Lords, Dec. 18, 1945; Am: J ourual,VJ>l, 40 (1946), 663.
;;,
,hTRri::m r.n r:N
127
or outside our territory, should forge or counterfeit Philip-
pine currency, utter such spurious securities or commit
any crime against our nation al security or the law of na-
tions.
Teriitorial Jurisdiction
The general rule is that a state has jurisdiction over
all persons and property within jts territory. As held in
The Schooner Exchange v. McFaddon, 3 "The jurisdiction of
the nation within its own territory is necessary, exclusive
and absolute. It is susceptible of no limitation not imposed
by itself." This rather sweeping statement is, however, as
previously suggested, subject to certain important excep-
tions to be discussed shortly.
Personal jurisdiction antedated territorial jurisdiction
but the latter is more effective because it is asserted by the
state over persons and property within its immediate con-
trol ~nd subject to its coercive processes. Nevertheless, the
state cannot e.xercise jurisdiction even within its own ter-
ritory over:
(1) Foreign states, heads of states, diplomatic repre-
sentatives, and consuls to a certain degree.
Foreign states and their heads are exempt because of
the sovereign equality of states and on the theory thl:lt a
contrary rule would dfaturb the peace of na tions. Diplo-
mats and consuls enjoy the exempt1on in order that they
may have full freedom in the discharge of their official
functions.
(2) Foreign state property, including embassies,
consulates, and public vessels engaged in non-commercial
activities.
.
 128 hrrERNA''''"NAr. L AW
By fiction of law, public vessels are regarded >I!'\ P.x-
tensions of the territory of the foreign state.
The inviolability of embassies and consulates is dis-
cussed in Chapters 12 and 13.
(3) Acts of state.
As explained in Underhill v. Hernandez, 4 "Every sov-
ereign state is bound to respect the independence of every
other sovereign state, and the courts of one countrJ will
not sit in judgment on the acts of the government of an-
other, done within its own territory. Redress of grievances
by reason of such act must be obtained through the means
open to be availed of by sovereign powers as between
themselves."
(4) Foreign merchant vessels exer cising the rights of
innocent passage or arrival under stress.
Innocent passage means navigation through the ter-
ritorial sea of a state for the pur pose of traversing that sea
without entering internal waters, or of proceeding to in-
ternal waters, or making for the high seas from internal
waters, as long as it is not • prejudicial to the peace, good
order or security of the coastal state.
5 Nationals and aliens, including non-residents, are bound
Arrival under stress or jnvoluntary entrance may be
due to lack of provisions, nnseaworthiness of the vessel,
inclement weather, or other cases of force majeure, like
pursuit by pirates.
(5) For eign armies passing through or stationed in
its territories with its permission.
It bas been held that ". .. without any express decla-
ration waiving jurisdiction over the army to which th is
right of passage has been granted, the soYereign who
would attempt to exercise it would certainly be considered
as violatin g his faith. By exercising it, the purpose for
' 168 U.S. 250.
5
Convention on the.Territorial Seas, Art. 14, Secs. 2, 4.
I,
Ii
n1
.] 1_1R1<::mn r ION 129
which the free passage was granted would be defeated,
and a portion of the military force of a foreign independent
nation would be diverted from those national objects and
duties to which it was applicable, and would be withdrawn
from the control of the sovereign whose power and whose
safety might greatly depend on retaining the exclusive
command and disposition of his force.'.e
(6) Such other persons or property, including or-
. ganizations like the United Nations, over which it may, by
agreement, waive jurisdiction.
Examples of such agreements are the Convention on
the Privileges and Immunities of the United Nations, the
Convention on the Privileges and Immunities of Special-
ized Agencies, and the RP-US Bases Treaty, which modi-
fied the customary exemptions under (5), above.
Land Jurisdiction
Save in the foregoing cases, everything found within
the terrestrial dom ain of the state is under its jurisdiction.
by its laws, an d no process from a foreign government can
take effect for or against them within the territory of the
local state with out its permission. Also, as against all
other states, the local state has exclusive title to all prop-
erty within its territory,7 which it may own in its own cor-
porat.e capacity or regulate when under private ownership
through its police power or forcibly acq•1ire through the
power of eminent domain ~ nr.h property is also subj<:>r.1-. t o
its t rudng p n w Ar.
6
The Schooner Excha nge v. McFaddon, supra.
'Wilson and Tucker, 111.
;.
130 ImERNA'l'IONAL LAw
Ml=l.ritime and Fluvial Jurisdiction
Also as a general principle, the internal waters of a
state are assimilated to the la nd mass and subjected to the
same degree of jurisdiction exercised over the terrestrial
domain. Covered by this rule are the so-called enclosed
waters, such as the land-locked lakes, national rivers a nd
man-made canals.
Civil, criminal . and administrative jurisdiction is ex-
ercised by the flag state over its public vessels w herever
they may be, provided they are not engaged in commerce.
1
As observed in The Schooner Exchange v. McFaddon, •
"National ships of war entering the port of a friendly
power open for their reception are to be considered as ex-
empted by the consent of that power from its jurisdiction."
Regarding foreign merchant vessels docked in a local
port or bay, jurisdiction is exercised over them by the
coastal state in civil matters, but criminal jurisdiction is
determined according to either the English rule or the
French rule. U nder the former, the coastal state shall have
jurisdiction over all offenses committed on board such
vessels, except only where they do not compromise the
peace of the port.,,a Under the latter, the flag state shall
have jurisdiction over all offenses committed on board
s uch vessels, except only vvhere they compromise the
9
peace of the port.
It is evident that tbe~ is no i::uhstantial distinction
between the two rules inasmuch as, under either, offenses
committed on board the foreign merchant vessel shall be
triable by the territorial sovereign when they constitute a
disturban ce of its peace and all .o ther offenses shall be
"'Supra.
8 11
Windenhus Ca§e~ infra.
l .. .
~ Cases of the Sally and the Newion. Fenwick, 314.
.~ i !
.
!.
r.
~ ~
..
,) t lTIT~l\l/"" 1'1 ()N
131
under the jurisdiction of the state whose flag the vessel
flies.
The real problem is in t he deten11ination of the na-
ture or effects of the offe nse by the coastal stat.e for the
purpose of ascertaining whether or not it shall assume
jurisdiction. In the Antoni Case, 10 for example, the Su-
preme Court of Mexico h eld that the murder of a French-
man by another Frenchman on board a French merchant
vessel in a Mexican port did not distu rb the peace of the
1
port. In the Windenhus Case,11 however, the United Stat.es
decided that the murder of a Belgian by another Belgian
on board a Belgian merchant steamer in the port of New
J ersey was of such a nature as "to disturb tranquillity and
public order on shore or in the port."
In any event, assuming that there is a difference be-
tween the two rules, our own Supreme Court has held that
the English rule is applicable in this country. Thus, al-
though mere possession of opium aboard a foreign mer-
chant vessel in transit through our waters is not consid-
ered a breach of our public order, 12 smoking of the drug on
board such vessel will produce pernicious effects within
our territory and is, therefore, triable by our courts. 13
Tne jurisdiction of the stat.e over its interior waters is
more exclusive than that which it exercises over its terri-
torial waters, as will appear later. Nevertheless, subject
only to a few exceptions, it is the right of the coastal state
to enforce all its laws to the full extent in its t.erritorial
waters ·and in proper cases to bar both public and mer-
char1t foreign vessels from entering the same. It may even
use force, if necessary, to prevent any encroachment on its
territorial integrity. ln the famous U.S.S. Pueblo incident,
10
Hudson, Cases, 601. '.
ll Ibid. , 602.
U.S. Y. Look Chaw, 18 Phil. 573.
13
People v. Wong Cheng, 46 Phil. 729.
 182 l h"fEH.NATl0!'1 Al. LA'IIJ
for instance, a n America n vessel was seized and its crew
interned by North Korea for alleged infringement of its
territorial waters.
As previously noted, the 1982 Convention on the Law
of the Sea, has fixed a uniform breadth for the territorial
sea at twelve m iles from the low-water mark of the coast.
U nder the archipelago doctrine espoused by the
Philippines, ''the waters around, between and connecting
the islands of the archipelago, regardless of their breadth
and dimensions, form part of the internal waters of the
Philippines." As internal waters, they are subject to the
exclusive jurisdiction of the Philippines. However, al-
though this claim has been substantially accepted in the
1982 Convention on the Law of the Sea, it is provided
therein that archipelagic sealanes are to be laid on these
waters over which foreign ships will h ave the right of pas~
sage as if they were open seas. Thus, a foreign vP.ssel need
not go around our internal wa ters but may use these ar-
chipelagic sealanes in negotiating the dist1:1.nP.P. from one
point. of the open s~a to another.
TitP. Conti(!'Uous 7,onP.
It is noteworthy that, besides extending tbe limits of
their territorial sea beyond the traditional three m iles
from the low-water mark, some states have claimed a
"protective jurisdiction" over what is called the contiguous
zone. This practic~ has been confirmed by the Convention
on the Territorial SP.::i and the Contiguous Zone, where it
is provided that "in a zone of the high seas contiguous to
its territorial sea, the coastal state may exercise the con-
; ~ trol necessary to: (a) prevent infringement of its customs,
,2 1~ ~cal, immigration or sanitary r egulations within its terri-
-f~.:·ui..tAJu·r or territorial sea, and (b) punish infringemenit of the
. k· . ·t 'r
'~
• ·•
y
~
·~
I
• •.
t 19
;:11 "_ J . ;._!ffh)
J !JRISDIC'I'l01'1 133
above regulations within its territory or territorial sea."14
The contiguous zone may not, however, extend more than
twelve miles from the coast of the state. 15
Under the 1982 Convention on the Law of the Sea,
the contiguous zone also extends twelve miles, but from
the outer limits of the territorial sea.
The ContiP.':'tt,tal Shelf
The continental shelf refers to: (a) the seabed and
subsoil of thz submarine areas adjacent to the coast but
outside the area of the territorial sea, to a depth of two
hundred meters or, beyond that limit, to where the depth
of the superjacent waters admits of the exploitation of the
natural resources of the said areas; and (b) to the seabed
and subsoil of similar areas adjacent to the coasts of is-
lands.16
The coastal state has the sovereign right to explore
the continental shelf and to exploit its natural resources17
a nd for this purpose it may erect on it such installations
and equipment as may be necessary. 1~ But this right shall
not affect the legal nature of the superjacent waters as
open seas or of the airspace above such waters and their
use as such by other states shall not be impaired or dis-
19
turbed. The coastal state is allowed to establish on the
open seas immediately above the installations a safety
zone with a radius of fivP, hundred meters ovP.r which it
may exercise jurisdiction for the protection of its prnpPr-
ties underneath.?,0
14
Art. 24.
15
Ibid.
16
Convention on the Continento.l Shelf, Art. 1.
11
Ibid., Art. 2.
18
Ibid., Art. 5, Sec. 2,
20
Ibid., Art. 3.
Ibid., Art. 5, Secs: ~,,;3!
I. •• .,
~· l l 1· ! ~
• l ' _··'f !• '
 rn4 TNTER!{ATIONAL L AW
The above rights are exclusive in the sense that if the
coastal state does not explore the continental shelf or ex-
ploit its natural resources, no one may undertake these
activities or make a claim to the continental shelf without
the consent of the coastal state.
21
The Patrimonial Sea
The exclusive economic zone or the p atrimonial sea,
extends two hundred nautical miles from the coast or the
baselines. All living and non-living resources found
therein belong exclusively to the coas tal sta te.
The concept of the patrimonial sea was adopted in the
• Declaration of Santo Domingo, by the Caribbean states, in
1972, the General Repo1t of the African States Regional
Seminar on the Law of the Sea, h eld in Yaounde in 1972,
and the Addis Ababa Declaration of 1973, adopted by the
Council of Ministers of the Organiza tion of African Unity,
and has also been formally proposed by Kenya.
'I'he patrimonial sea is now prouidea for in the re
CP.11tly ratified 19~?. r.nnwmtion on the Law of the S€a.
The Open S-eas
The open seas or the high seas are res communes and
available to the use of all states for purposes of navigation,
flying over them, laying submarine cables or fishing. In
times of war, hostilities may be waged on the open seas.
A state may exercise jurisdiction on the open seas in
the folkn.ving in~t.~n.r.es:
(1) Over its vessels. The flag state has jurisdiction
over its public vessels at all times, whether they be in its
own territo1y~.in the territory of other states or on the open
seas. Mercn~ht vessels, on the other hand, are under its
21 [bis]r., i.t"t"."2.
,t ·.
IT (: R!S['[(:TW!•l 135
juris diction when. they are within its territory, when j"uris-
diction is waived or cannot be exercised by the territorial
sovereign, or wh~n ~·.1 i:h u<:>:::~i:l~ i:n P, m, H1P. npP.11 ~P.i::i~
THE LOTUS CASE
P.I.C.J. Ser. A:, No. 10, 1927,
Hudson, World Ct. Rep. 20
Facts: The Lotus, a French steamer, and the
Bozkourt, a Turkish vessel, collided on the Aegean Sea,
outside territorial waters, resulting in the sinking of the
latter ship and the death of several Turkish nationals. The
Lotus docked at Constantinopole, where its officer of the
watch at the time of the accident, a French national, was
subsequently convicted of manslaughter by the Turkish
courts. France protested on the ground, among others,
that the matter was outside the jurisdiction of Turkey
inasmuch as the collision had taken place on the open
seas.
Held: ''The offense for which Lieutenant Demons
appears to have been prosecuted was an act of negligence
or imprudence-having its origin on board the Lotus
whilst its effects made themselves felt on board the
Bozkourt. These elements are legally entirely inseparable
so much so that their separation renders the offense non-
existent. Neither the exclusive jurisdiction of each to the
occurrences which to0k place on the respective ships
would appear calculated to satisfy the requirements of
justice and effectively to protect the interests of the two
Stat.es. It is only natur al ~httt each should be able to Pxei:--
cise jurisdiction and to do so in respect of the incident as a
whole. It is, therefore, a case of concurrent jurisdiction."
It should be noted, however, that Article 11 of the
Convention on the High Seas, signed at Geneva in 1958,
provides as follows:
-
l~h INTBHl'JJ\TIOl'IAL ! -~W
In the event of a collision or of any other incident of navi-
gation concerning a ship on the high seas, involving the penal
or disciplinary responsibility of the master or of any other per-
son in the service of the ship, no penal or disciplinary pro·
ceeding may be instituted against such persons except before
the j•Jdi.cilil <>r administrative authorities either of the flag
i:th,1t.P. m of the state of..-,hich such peTSon is a national.
(2) Over pirates. Pirates are enemies of all mankind
and may be captured on' the open seas by the vessels of
any state, to whose territory they may be brought for trial
and punishment. Where a pirate vessel attempts to escape
into the territorial waters of another state, the· pursuing
vessel may continue the chase but is under the obligation
of turning over the pirates, when captured, to the authori-
22
ties of the coastal state.
Piracy is committed for private ends, not political mo-
tives. Insurgents may, therefore, not be treated as pirates.
(3) In the exercise of the right of visit and search.
Under the laws of neutrality, the public vessels or aircraft
of a belligerent state may visit and search any neutral
merchant vessel on the open seas and capture it if it is
found or suspected to be engaged or to have engaged in
activities favorable to the other belligerent.is
(4) Under the doctrine of hot pursuit. If an offense
is committed by a foreign merchant vessel within the ter-
ritorial waters of the coastal state, its own vessels may
pursue the offending vessel into the open sea and upon
capture bring it back to its territory for punishment. To be
lawful, the pursuit must be begun before the offending
vessel has left the .territorial water!';, or the contiguous
zone of the coastal state with respect to violation of rights
enforcible thereon. Moreover, the pursuit must be continu-
22
• Laurel, 85. =
n See Hague Conventio~ f U!·; P~claration of London of 1909.
,J !'RISDlCTICN
137
ous or unabate<l; othe1wise, it will be d~emed to have
"cooled:, and c~n nn k,n_ger be msumed. 21
AP.l'·iql_ Judsdiction
Since the invention of aircraft is a comparatively re-
cent development, there are no traditional rules in inter-
national law regarding the rights of the subjacent state to
its aerial domain. Conventional rules are also inconclusive
as they are based mostly only on a network of bilateral
agreements that do not have universal application. None-
theless, the consensus appears to be that the local state
has jurisdiction over the airspace above it to an unlimited
height, or at the most up to where outer space begins.
Accordingly, and as a corollary to this rule, no foreign
aircraft, civil or military, may pass through the aerial
domain uf e state without its consent The shooting down
during the Eisenhower administration of an American
plane alleged to be flying at the time over Russian air-
space was sought to be justified under this principle.
As a result of the various agreements among states
regarding the use of their aerial domains, the following so--
called "five air freedoms" have been the subject of varying
degrees of recognition:
(1) The freedom to fly ::i.cross foreign territorv with
out landing.
(2) The freedom to land for non-traffir. purposes.
(3) The freedom to put down traflic origjn~ting in
the state of the aircraft.
(4) The freedom to embark traffic destined for the
state of the aircraft.
(5) . The freedom to embark traffic destined for or to
put dovm traffic originating in a third state.
2
• Oppenhei.m-Lauterpacht, 554.
I

138 INTERNATIONAL LAW ,J URISOJCTION 139

Under the Convention on Offenses and Certain Other
Acts Committed on Board Aircraft, concluded on Septem-
ber 14, 1963, it is the state of registration of the aircraft
that has jurisdiction over offenses and acts committed on
board while it is in flight or over the high seas or any other
area outside the territory of any state. No other state may
exercise jurisdiction over such aircraft except when:
(1) The offense has effect on the territory of such state;
(2) The offense has been committed by or against a na-
tional or permanent resident of such state;
(3) The offense is against the security of such sta ta;
(4) The offense consists of a breach of any rules or
regulations relating to the flight or maneuver of aircraft in
force in such state;
(5) The exercise of jurisdiction is necessary to Msure
the ob~ervance of ar>.y obl:igation ,;,f ':'.'".'h ,;:t<> ~<> 11nrl"1r <I mnlfi-
l R tAT'-" I intAt n sit.imu1l RS l'P.P.m Ant..
Outer Snace
Like the open seas, outer space, or the region beyond
the earth's atmosphere, is not subject to the jurisdiction of
any state. Outer space, including the moon and other ce-
lestial bodies, shall be free for exploration and ·use by all
states without discrimination of any kind, on a basis of
equality and in accordance with international law. It is
also not ~ubject to national appropriation by claim cf sov-
ereignty. bv m el'l!.ls of uRe or OCC'l1 pation or by a ny other
me::in.s.
Astronauts shall be regarded as envoys of mankind.
But a state launching an object into outer space shall re-
tain.jurisdiction and control over such object, and over any.
personnel thereof, while in outer space or on a celestial
body. The state shall also be internationally liable for any-
damage that may be caused by such n~jP.l".1-. to anct11P.r
state or to any person.2.;
Other TerritoriP.!,:
A state may, by vi.due of customary or conventional
international law, extend its jurisdiction beyond its terri-
tory and over territory not falling under its sovereignty.
This may be effected in the following ways:
(1) Through assertion of its personal jurisdiction
over its nationals abroad or the exercise of its right to
punish certain offenses committed outside its territory
against its national interests even if the offenders are non-
resident aliens.
(2) On the strength of its r elations with other states
or territories, as when it establishes a colonial protector-
ate, or a condominium, or administers a trust territory, or
occupies enemy territory in time of war.
(3) As a consequence of the waiver of jurisdiction by
the local state over persons and things within its territory,
illustrated by the foreign army stationed therein which
remains under the jurisdiction of the sending state or by
the exceptions to the English and French rules on criminal
jurisdiction over foreign merchant vessels.
(4) Through acquisition of extraterritorial rights. In
this connection, exterritoriality must be distinguished from
extraterritoriality in that the former refers to the exemp-
tion of persons and property from the local jurisdiction on
the basis of international custom whereas the latter ap-
plies only to persons and is based on treaty or convention.
Extraterritoriality has become discredited because of the
rise of nationalism and the sovereign equality of states.
But exterritoriality, as illus~r~ted by the immunities of the
2r. : f ,::.·i
'
Jo. - . . ~
.. . ,.

,_ See Treaty o~ the Ptj.nu

c1 !_e~ Governing the Activities of
States m the E~ploratwn a~~ gs t1<:t~p:lr
Space.· .
.
.
, : ~-t i;.
'
1,1t
. ·.· .r "~,-1
!
.
 r--r--

I" ii Thlt'1WI\IA1'I0NAL L AW
140
i
I
l head of state in a foreign count.1·y, remains a rn~pPi::ted
principle of international law.
Chapter 12

(5) Through the enjoyment of easements or servi- THE RIGHT OF T,F.GATION

tudes, such as the easement of innocent passage or the
easement or arrival under stress. In the Portuguese En-
claves Case,20 for example, the International Court of Jus-
tice held that Portugal had a right of passage through
Indian territory in order to reach its own territory. This
right was limited "to"the extent necessary for the exercise
of Portuguese soverei~ty over the Enclaves and subject to
the regulation and control of fo.dia, in resped. of private
pP.T i::nns, ci,·il offici ~ l ~ i:i rn:l goods in gen em1 "
26
International Court of Justice.
THE EXERCISE OF THE RIGHT OF LEGATION is one of
the most effective ways of facilitating and promoting inter-
course among st at es. Through the active right of sending
diplomatic representatives and the passive right of receiv-
ing them, states are able to deal more directly and closely
with each ot her in the improvement of their mutual inter-
ests. Being pure1y consensual, the maintenance of diplo-
matic relations is not a demandable right on the part of
either the sending or the receiving state HoweVfir, recog-
nizing the many benefits avail.8.ble from contact ·with the
family of nations, practically all states have availed them-
selves of and are now exercising the right oflegation.
Agents of Diplomatic Intercom·se
Diplomatic relations are normally conducted through
the h ead of state, the fc.reign secretary or minister and the
members of the diplomatic service. Sometimes the head of
state may also appoint special diplomatic agents charged
with specific ceremonial or political duties. Envoys cere-
monial are usually sent to attend state functions like a
coronation or a jubilee while envoys political may be
commissioned t o negotiate with a particular state or to
participate in an international conference or congress. In
the latte1· case, there is no need to accredit them to the
state. where the sessions ar.e being held 1 nor 1.s it necessary
that there be regular diplomatic relations between that
state and their own .
.,. -:;
I
Oppenheim-Laut.erpacht, 775-776.
141

I'*
~
Ii ] 4-?. !NTBRNAT!ONAL f ,AW
ll The Head of State
'l'he head of state, be he monarch or president, is re-
garded as the embodiment of or at least represents the
sovereignty of his state. Accordingly, he is entitled to cer-
tain immunities and honors befitting his status. His per-
son being regarded as sacrosanct, he has a right to special
protection not only for his physical safety but for the pres-
ervation of his honor or reputation as well. His quarters,
archives, property, and means of transportation are in-
violate under the principle of exterritoriality. He is also
exempt from criminal jurisdiction and likewise from civil
jurisdiction, except where he himself is the plaintiff, and is
not subject to tax or to exchange or currency restrictions.
Ceremonial amenities are also due him unless he is trav-
eling incognito. 2
In the case of Mighell v. Sultan of Johore ,3 suit was
brought for breach of a promise to marry allegedly made
by the defend ant who had represented himself as a pri·
vate individual. The action was dismissed when h e re-
vealed his real identity as head of an independent state.
By contrast, a civil claim for money due the plaintiffs was
allowed by the French courts against former Queen Isa
bela of Spain, then living in Paris.{ Jurisdiction was as-
sumed because she had already been deposed at the time
and was no longer entitled to royal prerogatives.
The Foreign Secretary
It was common before for heads of state to personally
undertake the function of diplomatic .negotiations, but the
practice has now largely fallen into disuse. Except ou nrre
occasions when the matter under consideration is of such
2
lbid.
~ L.R. (1894), 1 Q.R Div. 149.
• Oppenhellll,-UJ,Uterpacht, 761.
'l'IIE RIGHT OF Lf.GAT!ON 14.q
significance or delicacy as to warrant no less than what is
known as a "summit meeting," the conduct of external
affairs is now generaHy entrusted to the foreign secretary
or minister.
Under the municipal law of most states, the foreign
secretary is the immediate representative of the head of
state and directly under his control. As such, he can make
binding declarations on beha1f of his state on any matter
falling within his authority, such as questions re1ating to
recognition nf states or gO\rernments and the settlement of
international claims against t he state. 5 The foreign secre-
tary is also the head of the foreign office and has direction
of all ambassadors and other diplomatic representatives of
his government.
0-ipl.o matic Envoys
The regular or day-to-day conduct of international af-
fairs is entrusted to the members of the foreign service
who are accredited by the sending state as its permanent
envoys to represent it in the states with which it is main·
taming diplomatic relations. The development of this serv-
ice was the offshoot of the practice of establishlng perma-
nent legations which became general during the seven-
teenth century.
The heads of these diplortatic m.issions aI8 classified
as follows by the Convention on Diplomatic Relations.
which was signed at Vienna in 1961:
(1) Ambassadors or nuncios ::ll'.~rE'ii1t.ed to heads of
state.
(2) Envoys, ministers or internuncios a.ccredited to
heads of state.
5
Case concerning the Legal S tatus of Eastern Greenland, de·
cided April 5, 1933, by the Permanent Court of International Justice,
. "
Oppenheim-Lauterpacht, 765,-766. l
• y Jj
lJ.
I
llITEilll,\TIONhL LA~.Y
141
( 3) Charges d'affaires accredit~cl. to mini.~~p,~ for
6
foreign affairs.
The classification of diplomatic representatives was
considered significant before because direct communica-
tion with the head of state depended then on the rank of
the diplomat and, moreover, only the powerful states were
regarded as entitled to send envoys of the highest rank At
prnsent, however, dipk,i_natic matters are usually dis-
cussed n ot with the h ead of state but with the foreign sec-
retary regardless of the diplomat's rank Moreover, it has
become the practice now for even the smallest ·and weak-
\ est states to send diplomatic representatives of the highest
rank, even to the major powers.
It may be said, therefore, that the distinctions among
the members of the diplomatic service are important only
in connection with matters of protocol or the grant of spe-
cial honors. In other respects, the various diplomatic
agents enjoy substantially the same prerogatives regard-
less of rank.
The Diplomatic Corps
The diplomatic corps is a body consisting of the dif-
ferent diplomatic representatives who have been accred-
ited to the same local or r eceiving state. It is headed by a
doyen du corps who, by tradit ion, is the oldest member
with the highest rank or, in Catholic countries, the Papal
Nuncio. In the Diplomatic Convention, however, it is pro-
vided that "heads of missioni:i shall take precP.d.en0e in
their resp~tive classes in t.hP. order of the date and ti mP.
of taking up their functions.''
7
Being a loose organization without any corporate ·
character, the diploma tic corps does not possess any legal
: ~a.
Aft.,
ri
14.
16.
T HI!: R u.:m · 0P I ·~X;ATION 14n
powers or attributes. It is nonetheless important in watch-
ing over diplomatic privileges a.nd honorR :m.d ha.s at time.q
acted officially in the protection of the rights of its mem-
bers.
Appointment of Envoys
The Diplomatic Convention provides that the class to
which the heads of their missions are to be assigned shall
be agreed upon between the states concemed. 8 Moreover,
the sending state must make certain that the agrement of
the receiving state h as been given for the person it pro-
poses to accredit as head of the mission to that state.9
The appointment of diplomats is not merely a matter
of municipal law because the receiving state is not obliged
to accept any representative who is persona non grata to
it. Indeed, there have been cases when accredited repre-
sentatives were rejected, resulting in strained relations
between the sending and receiving states. For example, an
American minister was not received in Italy for having
previously protested in a speech the annexation of the
Papal States by Italy; and when next accredited to Austria
he was also rejected, this time because he was married in
a civil ceremony to a Jewess. The United States govern-
ment considered these reasons inadequate but could not,
of course, insist on its appointment.
To avoid such awkward situations, most states now
observe the practice of the agreation, by means of which
informal inq1.1iries are. addressed to the receivi.r, g state
regarding a proposed diplornati.c representafr,:e of the
sending state. It is only when the receiving state manifests
its agrement or consent, also informally, that the diplo-
matic representative is appointed and formally acc1·edited.
8
Art. lp.
• Art. 4.
 h rrEru,ATl Ol,l,\l, r.,A.W
146
Article 4 of the Diplomatic Convention provides that "the
receiving state is not obliged to give reasons for a refusal
of ag rement."
Under our Constitution, it is the President who is em-
powered to appoint ambassadors, other public ministers
and cons uls, subject to the consent of the Commission on
Appointments. His discretion is exclusive when it comes to
receiving ambassadors and other public ministers duly
10
accredited to the government of the Phllippines.
Commencement of the Diplomatic Mission
The head of the mission is considered as having taken
up lris functions in the receiving state either when he has
presented his credential or when he has notified his arri
val and a true copy of his credentials has been presented
11
to the foreign ministry of the receiving state.
The credentials of the diplomatic agent include chiefly
.; the letter of credence, or lettre de creance, by means of
i lfl
which he is accredited to the receiving state with the re-
quest that full faith and credit be given to bis official acts on
behalf of the sending state. In addition to this document,
the envoy usually also carries his diplomatic passport, his
official instructions and a cipher or code book for use in
sending secret communications to his government.
Although marked with solemnity and sometimes
even pomp, the reception of the envoy is not a n1ere cere-
mony. Unlel:-1!:l the receiving stAte had pn:i";omi1y given its
agrement to his appointment, the diplomatic representa-
tive cannot claim the usual privileges and immunities of
his ·office until he is formally accepted. Oppenheim cites·
the case of one Vitianu, who was convicted of certain
crimes in Switzerland despite his assertion that he had
10
Art. VII, Sec. 16.
II
Diplomatic Convention, Art . 13.
;
TuR RIGHT OF L EGATION
147
been appointed economic counselor of the Romanian lega-
tion there. It was held that, since he had never been ac-
cepted as such by the Swis:;; government, he could not
claip1 <liplomatic immun ity. 12
Diolom::i t.i~ Function~
The functions of a diplomatic mission consist inter
alia in:
(1) Repre~':lnting the sending ;;:tate in t.hi=> n~ceiving
state.
(2) Protecting in the receiving state the intel'ests ,:,f
the sending state and its nationals.
(8) Negotiating r rith the government of the receiv-
ing state.
(4) Ascertaining by all lawful means conditions and
developments in the receiving state and reporting thereon
to the government of the sending state.
(5) Promoting friendly relations between the send·
ing and receiving states and developing their economic,
cultural and scientific relations. 13
The diplomatic mission may also perform consular
functions in the absence of a consular mission from the
sending state. On reques t or by agreement, it may also
represent friendly governments, as when the United
States undertook the diploroi::itic rnp.resentation of the
Philippine Republic while we were still in the process of
organizing our own foreign service. 14
uOppenheim-Laut.ernacht,. 784.
13
Diplomatic Convention, Art. 3.
on
"RP-US Treaty 0-~ne,;fll l,lelations .
• ; t.:
. -! i· t..'~
l l il i
14~ TrITERHATION,\L .1 ,41A1
Conduct of Diplomatic Mission
In the performance of his functions, the diplomatic
agent must exercise the utmost discretion and tact, taking
care always to preserve the goodwill of the sending state
and to avoid interference with its internal affairs. The
envoy is not justified in pitting or aiding one political party
against another: or publicly criticizing the policies or acts
of the receiving state, or employing threatening or offen-
sive language or methods in the protection of the interests
of his state or its nationals. His mission is also under no
circumstance to be used for espionage, the dissemination
of propaganda against the receiving state, or subversion
of its government.
\
The Philippine government ordered the closure of the
Cuban embassy here when it was discovered to be en-
gaged in subversive activities. Ambassador Hanihara was
replaced in 1924 when he suggested in a letter to the U.S.
State Department that the passage of a bill limiting Japa-
nese immigration was likely to produce "grave conse-
quences." Sending states have on occasion, volunta1ily or
on request, 1-ecalled their diplomatic representatives for
improper discharge of their functions.
Diplomatic Immm1iti.':'~.and Privileges_
Diplomats enjoy a number of privileges and immuni-
ties some of which can be traced to as far back as the
Greek and Roman eras. The reason originally given for the
special treatment of the envoy was the fiction of exterrito-
ria1ity by which he was considered an extension of the
state he was representing. But this view has yielded to the
modem justification that his privileges and immunities
are necessary to give the envoy the fullest freedom or lati-
tude in the exercise of his official functions.
ii,j.
'I'HE RIGHT OF Li::GATION 149
Based largely on international custom, most of the
diplomatic privileges and immunities have been reaf-
firmed and are now expressly provided for in the Diplo-
matic. Ccnvcmtion of 1961. Some of th~ rn0re important of
these are briefly discussed hereunder.
(a) PP.nmn~l Inviolability
Like the head of state, the envoy is regarded as sacro-
sanct and is entitled to the special protection of his person,
honor and liberty. An attack on any of these is deemed a
serious offense and must be redressed with the most se-
vere penalties by the receiving state.
The Diplomatic Convention provides: "The person of a
diplomatic agent shall be inviolable. He sha11 not be liable
to any form of arrest or detention. The receiving state
shall treat him with due respect and shall take all appro-
priate steps to prevent any attack on his person, freedom
or dignity."15
But these rules are noi without exception. The envoy
cannot complain if he is injured because he himself caused
the initial aggression and thereby provoked retaliation or
unduly exposed himself to danger a~ by mixing with a
diso1·derly assemblage. 16 The local authorities may also, in
exceptional cases, lay hands on him if he has committed
an act of violence and it is necessary to place him in pre-
ventive restraint.
In the Philippines, RA. No. 75 punishes, on the basis
of reciprocity, "any person who assaults, sti;kes, wounds,
imprisons or in any otber manner offers violence to the
person of an ambassador or public minister, in violation of
the law nations" with imprisonment for not more than
three years ~nd a fine uot exceeding two hundred pesos in
·~ Art. -~9.
16
Fenwtck, 469.
._ !' ..
150 lNTP.RNAnot-rAI. LAw
addition. to the penalties prescribed by the Revised Penal
C(lde. lt is to be notP.d> though, that the attack is confined
to the person of the envoy and does not indude his h0110r
or reputation.
(b) Immunity from Jurisdiction
It is a generally accepted principle of international
law that the diplomatic agent shall be immune from the
civil, criminal and administrative jurisdiction of the re-
a
ceiving state except in few .specified cases. This does not
mean that he can violate the local laws with impunity; on
the contrary, he is expected to observe them meticulously
as befits a person of hls rank and prestige. If he does not,
he may not be punished for his offense by the receiving
state, but it can and usually will ask for his recall.
So strictly observed is this immunity that the envoy
can escape the rigor of the local laws even if he commits
the most serious offense in the receiving state. Thus, when
in 1584 the Spanish ambassador to England plotted
against the life of Queen Elizabeth I, he was merely or-
dered to leave the country, as so too was the French am-
bassador when he was involved in a conspiracy to kill
Cromwell in 1654. Interestingly, however, when in 1587
the French ambassador committed a similar offense
against the same Queen Elizabeth I) he was simply given
•
a warning.
11
The Diplomatic Convention provides: "A diplomatic
agent shall enjoy immunity, from the criminal jurisdiction
of the receiving state. He shall also enjoy inummity 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 s~ndi~g state for the purposes of
'i
1
Oppenheim-Lauterpacht,f'79l .
• 1r
.! ' l "-
tS:'i:t :
- ·~1·:;f .t
'Pm,: RIGHT OF LEGAi'ION 151
the rrussion; (b) an action relating to succession in which
the diplomatic agent is involved as executor> administra-
tor, heir or legatee as a private person and not on behalf of
the sending state; (c) an action relating to any professional
or commercial activity exercised by the diplomatic agent
in the receiving state outside his official functions."1&
Immunity from ju:dsdiction may be waived expressly
by the sending state, or under its authority, by the head of
mission. Waiver may also be made impliedly, as when the
person entitled to the immunity commences proceedings in
the local state and thereby opens himself to any counter
claim directly connected with the principal claim. However,
waiver of immunity from jurisdiction in respect of civil or
administrative proceedings shall not be held to imply
waiver of inununity in respect of the execution of the judg-
ment, for which a separate waiver shall be necessary.19
RA. No. 75 provides that "any writ of process sued out
or prosecuted by any person in any court of the Republic of
the Philippines, or by any judge or justice, whereby the
person of any ambassador or public minister of any foreign
state, authorized and received as such by the President, or
any domestic servant of any such ambassador or minister is
arrested or imprisoned, or his goods or chattels are dis-
trained, seized, or attached, shall be deemed void, and every
persori by whom the same is obtained or prosecuted,
whether as party or as attorney, and every officer concerned
in executing it, shall, upon conviction, be punished by im-
prisonment for not more that three years and a fine of not
exceeding two hundred pesos in the discretion of the court."
In \Vorld HPfl.lth Org0,ni,7.ation. v. Aquino,1-q, the re-
~pondent judge issued a warrant for the search and F1ei-
£:
.~ :4
. '.!
i. •18
Ii
9
A1t. 31.
'" t ·_190Art. 32.
1 - 48 sCRA 242.
152 INTERNATIONAL L.\w
zure of certain goods alleg_ed to have been brought into the
country illegally by an official of the World Health Organi-
zation. The WHO and the official moved to quash the
wa1Tant on the ground of the latter's diplomatic immunity
under the Host Agreement concluded between the Philip-
pines and the WHO. The Secreta1y of Foreign Affairs
joined them in this representation, as so too later did the
Solicitor General. Neverth~less, the judge denied the mo-
tion, holding that there were "strong and positive indica-
tions of violations of local laws." ln annulling the search
warrant, the Supreme Court held as follows:
1. The executive branch of the Philippine Government
has expressly recognized that petitioner Verstuyft is entitled to
diplomatic immunity, pursuant to the provisions of the Host
Agreement. The Department of Foreign Affairs formally ad-
vised respondent judge of the Philippine Government's official
position that accordingly 'Dr. Verstuyft cannot be the subject of
a Philippine court summons without violating an obligation in
intemational law of the Philippine Government' and asked for
the quashal of the search warrant, since his personal effects
and baggage, after having been allowed free entry from all cus-
toms and duties and taJLes., may not be baselessly claimed to
have been 'unlawfully imported' in violation of the tariff and
customs code as claimed by respondent COSAC officers. The
Solicitor General, as principal law officer of the Government,
tikewise expressly affirmed said petitioner's right to diplomatic
immunity and asked for the quashal of the search warrant.
It is a recognized principle of international law and un-
der our system of separation of powers that diplomatic immu-
nity is essentially a political question and courts should ref-
use to look beyond a determination by the executive branch of
the government, and where the rlea of diplomatic immunity is
recognized and affirmed by the e:irecutive branch of the gov.
ernment as in the ·case at bar, it is then the duty of the courts
to accept the ,claim of immunity upon appropriate suggestion
by the p:riri_cipal law officer of the government, the Solicitor
General in tJ:us·cas.e, or other officer acting under his direction.
Hence, inra~e'[i;nce to the settled principle that courts may
not so exeri!i~ t:h~r jurisdiction by seizure and detention of
propel'ty, 1t4 to embarrass the executive arm of the government
- ·'!!, ,_,n
't , - ""
tl I~
Tm: Ru.~H T' 0F LEGATION
153
in conducting foreign relations, it is accepted docttine that 'in
such cases the judicial department of (this) government follows
the action of the political branch and will not embanass the
latter by assuming an antagonistic jurisdiction.'
2. The unfortunate fact that respondent judge chose to
rely on the suspicion of respondents COSAC officers 'that the
other remaining crates unopened contain contraband items'
rather than on the catego1ical assurance of the Solicitor Gen·
eral than petitioner Vei-stuyft did not abuse his diplomatic
immunity, which was based in turn on the official positions
taken by the highest exP.cutive officials with competence and
authority to act on the matter, namely, the Secreta1ies of For-
eign Affairs and of Finance, could not justify respondent
judge's denial of the quashal of the search warrant.
As already stated above, and brought to respondent
court's attention, the Philippine Government is bound by the
procedure laid down in Article vrr of the Convention on the
Privileges and Immunities of the Spedalized Agencies of the
United Nations for consultations between the Host State and
the United Natio11s agency concerned to determine, in the first
instance the fact of occurrence of the abuse alleged, and if so,
to ensure that no repetition occurs and for other recoUl'ses.
This is a commitment voluntarily asswned by the Philippine
Government and as such has the force and effect of law.
Hence, even assuming arguendo as against the categori-
cal assurance of the executive branch of government that re-
spondent judge had some ground to prefer respondent COSAC
officers' suspicion that there had been an abuse of diplomatic
immunity, the continuation of the search warrant proceedings
before him was not the proper remedy. He should, neverthe·
less, in deference to the exclusive competence and jurisdiction
of the executive branch of government to act on the matter,
have acceded to the quashal of the search warrant, and for-
warded his findings or grounds to believe that there had been
such abuse of diplomatic immunity to the Departm,mt of For-
eign Affairs for it to deal vvith, bl accordanre with the afore·
mentioned Convention, if so warranted.
In the case of The Holy See u. &sario, l9b the Supreme
Couit dismissed a civil complaint a gain~t the petitioner
19
b 238 SCRA 524. ..
~
 154 lNIERNAIION:\L L AW
after the Department of Foreign Affairs had "officially
certified that the Embassy of the Holy See is a duly ac-
credited diplomatic mission to the Republic of the Philip-
pines exempt from local jurisdiction as entitled to all the
rights, privileges and immunities of a diplomatic mission
or embassy in this country." It was further affirmed that
"the detennination of the executive arm of the government
that a state or instrumentality is entitled to sovereign or
diplomatic immunity is a political question that is conclu-
sive upon the courts'. Where the plea of immunity is recog-
nized and affirmed by the executive branch, it is the duty
of the courts to accept this claim so as not to emban·ass
the executive arm of the government in conducting the
country's foreign relations."
(c) Inviolability of Diplomatic Premises
The Diplomatic Convention provides: "The premises of
the mission shall be inviolable. The agents of the receiving
state may not enter them except with the consent of the
head of mission."ro It also places on the receiving state "a
special duty to take all appropriate steps to protect the
. pre:rrrises of the mission against any intrusion or damage
and to prevent any disturbance of the peace of the mission
or impairment of its dignity.'m Furthermore, "the premises
of the mission, their furnishings and other property thereon
and the means of transport of the mission shall be immune
from search, requisition, attachment or excution.22
Originally derived from the principle of exterritorial-
ity hut now generally j-vstif:ied on more pragmatic gronnds,
the so ·called (ranr.hise de· l'hotel P-xt.e.nds immunity from
the local law to the diplomatic premises. These include the
20
Art. 22.
21
Ibid.
22
Ibid.
f
] f!E H 1GH1' OF T .MA'l'I0N l fifi
envoy's offices, his residence and out-buildings, his means
of transportation, :md the compound where these are
found, which may not be entered by the local authorities
without his permission.
But this rule i~ not absolute as it is allowed, in cases
of clear and urg~nt necessity, for the local authmities to
take forcible measures to a1Test any person subject t-0
their jurisdiction. The so-called right of diplomatic asylum
has not received. universal recognition except when it is
extended for humanitarian reasons, as when the fugitive
seeking sanctuary is in immediate danger of his life or
safety. In other cases, asylum is granted only on the
strength of local usage, partiC'ularly in favor of political
refugees, or of treaty stipulations.
Of particular interest is the case of Sun Yat Sen, who
was detained in 1895 in the Chinese legation in London in
defiance of a writ of habeas corpus. When the British gov -
ernment threatened to use force to carry out the order of
the court, the Chinese minister immediately ordered the
prisoner's release.
(d) Inviolahilit.y of Ar~hivP~
For quite obvious reasons, the receiving· state has no
right to pry into the official papers and records of a foreign
diplomatic mission. Accordingly, the Diplomatic Conven-
tion simply provides that "the archlves and documents of
the mission shall be inviola.ble at any time and wherever
23
they may be." This is true even in case of armed conflict,
during which the archives must rfnY1~in ~':'fll~,:\ and may
not be confiscated by the local state.
2
' Art. 24.
~
n:
!
156 }N'J'F,RNA'Tl0NA1, l,AW
~A) Inviolability of Comm tmi6:: I:\ t.i m1
Being essential to the proper discharge by the e nvoy
of his official functions, the right to free communication is
recognized and protected by international law. According
to the Diplomatic Convention, "The receiving state shall
permit and protect free communication on the part of the
mission for all official purposes. In communicating with
the government and other missions and consulates of the
sending state, wherever situated, the mission may employ
all appropriate means, including diplomatic couriers and
messages in code or cipher.',24
Such communications are "inviolable" and the diplo-
matic bag containing it "shall not be opened or detained."
Even the diplomatic courier carrying the diplomatic bag
"shall be protected by the receiving state in the perform-
ance of his functions. He shall enjoy personal inviolability
and shall not be liable to any form of arrest or detention.',25
(f) Exemption from Testimonial Duties
The Diplomatic Convention also provides that "a
diplomatic agent is not obliged to give evidence as a wit-
ness. " 26 Nevertheless, he is not prohibited by international
la w from doing so and may waive this privilege when
authorized by his government. For example, the Vene-
zuelan envoy testified at the trial of the assassin of Presi -
dent Garfield in 1881. On the other hand, the Dutch envoy
to Washington invoked this right in 1856 when he rejected
a request to testify in connect'ion with a homicide commit-
ted in his prei::ence and for the prosecution of which his
testimony was necessary. The American government later
asked for his recall.
2
• Art. 27.
,s Ibid.
16 Art. 31.
'I'HF. H IOHT OF LP.GATION 1fi7
(g) ExP.mption r-~·om Taxation
The diplomatic envoy is also exempt from taxes, cus-
toms duties, and other dues, subject to the exception listed
in the Diplomatic Convention, 21 and as well as from social
security requirements under certain conditions.28 His per-
sonal baggage is also free from inspection unless there are
serious grounds for presuming tb~t it i::ontains articles not
exempt from customs duties or not admissihle inti) thP.
receiving state.29
(h) Ot.hP.r PrivilPg"?''!
Subject to its laws and regulations concerning zones
entry into which is prohibited or regulated for reasons of
national security, the receiving state shall ensure to all
members of the mission freedom of movement and travel
in its territory. 30
The receiving state shall also exempt diplomatic
agents from all personal serv:ices, from all public services
of any kind whatever, and from military obligation such as
those connected with requisitioning, military contributions
and bil1eting. 31
The mission and its head shall have the right to use
the flag and emblem of the sending state on t he prAmi.ses
of the mission, inc) ud.i ng the residence of the head of the
mission, and on his means of transport.32
21
Arts. 34, 36.
u Art. 33.
. ,. r Art. 36.
ao Art. 26.
1
• Art. 35.
=Art. 20.
!.
158 illTF.RN .. 'T'TONAL l ,AW
The Diplomatic Suite or Retinue
The above-discussed immunities and privileges are
available not only to the head of mission and his family
but also to the other members of the diploma tic retinue,
albeit not in the same degree. The diplomatic retinue con-
sists of the diplomatic staff, the administrative and techni-
cal staff and the Sef'\?,ce staff. The administrative and
t.echnical staff enjoys the same rights as the diplomatic
staff except that immunity from civil and administrative
jurisdiction shall not extend to unofficial acts. On the
other hand, the private servants of the officiai members of
the mission, if they are not nationals or permanent resi-
dents of the receiving state, enjoy only exemption from
dues and t ruces on their income from the mission a nd such
other immunities and privileges as may be granted by the
receiving state.33
Du.ratio:n
Every person entitled to diplomatic privileges and
immunities shall enjoy them from the moment he enters
the territory of the receiving state on proceeding to take
up his post or, if already there, from the moment h is ap-
pointment is notified to the foreign ministry. 34
When his functions have to come to an end, his
privileges l:lnd immunities sh:tll normally cea..~e from the
moment h e leaves the country or on expiry of a reasonable
time in which to do so, but $hall subsist until such time
even in case of armed conflict. However, with respect to
acts perfor med by him in the exercise of his official func-
tions, immunity shall continue indefinitely as it is sup-
~
T HE RIGHT OF LF.:GAT IOU 159
posed to have attached not to hirr.1 personally but to the
state 118 w::is representL1g. 35
These privileges and immunities are available to him
and to his family not only in situ but as well in transitu,
that is, when t r aveling through a third state on the way to
or from t he receiving state, so far as m~y bP. necessary to
secure his tra nsit or return.36
'T'ermination of Diplomatic Mission
A diplomatic mission may come to an end by any of
the usual methods of t.erminating official relations, ljke
death, resignation, removal, abolition of the office, ~ .
These are governed by municipal law. Under int.ernational
law, the more important modes are recall and dismissal.
Recall may be demanded by the receiving state when
the foreign diplomat becomes persona non grata to it for
any reason. An example is the request made by the
U.S.S.R. in 1953 for the recall of U.S. Ambassador Kennan
for making derogatory statements against the Soviet Gov-
ernment. Where the demand is reject.ed by the receiving
state) or even without making a request for recall, the
receiving sta te may resort to the more drastic method of
dismissal, by means of which the offending diplomat is
simply asked to leave the country.
In October 1971, for instance, the British Govern-
ment ordered no less than 105 SoyjP,t diplomat.ic officials
to leave Great Britain-the largest diplomatic expulsion
in peacetime history-for espionage. The U.S.S.R. lat.er
retaliated by ousting 5 British diplomats and refusing to
accept 13 others. In 1976, the North Korean ambassador
and several members of his diplomatic mission were ex-
3s Ibid.
36
Art. 40
I1i)\ 160 INTERNA'l'IONAI. L,\'h'
'
pelled by the Scandinavian states to which they were ac-
credited, for alleged involvement in illicit drugs.
The outbreak of war between the sending and re-
ceiving states terminates their diplomatic relations, which
are in fact usually severed even before the actual com-
mencement of hostilities. Extinction of either state will
also have the same effect. As for change of government,
diplomatic relations are not disturbed if the change is
peaceful but may be suspended where it is effected by
means of violence and ·the new government has not yet
been recognized by the receiving state. In either case, ac-
cording to Oppenheim, thP,re ig a necessity for the diplo-
37
matie 1:1.gPnt._t.o he provided with a n-ew J.i:>t.t.P.r nf r.rnclP.nce.
37
Oppenheim-Lauterpacht, 818.
1?'
Chapter 13
CONSULS
\'
CONSULS are state agents residing abroad for various
purposes but mainly in the interest of commerce and navi-
gation. Unlike diplomatic agents, they are not charged
with the duty of representing their states in political mat-
ters nor are they accredited to the state where they are
supposed to discharge their functions. For this reason,
consuls do not ordinarily enjoy all the traditional diplo-
matic immunities and privileges, although they are to a
certain extent entitled to special treatment under the law
of nations.
The institution of consul dates back to as far as six
centuries before Christ, when the Egyptians allowed the
Greeks at Naucratis to choose from among themselves a
magistrate who would apply to them the laws of their own
country. Later, the Greeks began sending to foreign juris-
dictions their own protectors or prostrates (proxenoi), a
practice modified by the Romans with the appointment of
the praetor peregrinus, who interpreted the law between
Romans and foreigners. Following the conquest _of Rome,
the Visigoths established a special comt that applied to
foreigners their own national laws rather than the law of
the territorial sovereign. Similar comts wer~ created 'by
the Chinese during the eighth century and bv the Arahs in
the ninth century.
With the development of commerce in the Mediterra-
nean cities and the Near East, numerous treaties of ca-
pitulation, as they were called, exempted European na~
tionals in the Near East from the local jurisdiction and
.,,.
;; 1h2 !NrERNA'J'IONAL LAW
i made them triable by their own consuls according to their
own national laws. Eventually, in view of their growing
importance, consuls acquired official character when they
were commissioned directly by their own governments
rather than merely by their own countrymen. The rise in
nationalism and the concept of sovereignty, however,
gradually decreased much of the power of consuls until
they became vested oqly with authority to act ge~erally
on commercial. and related matters. Nevertheless, the
~ continuing expansion of international commerce, coupled
with the improvement of transportation and communica-
tion in the seventeenth and eighteenth centuries, led to
the further growth of consular services.
Kinds and Grades
There are two kinds of consuls, to wit, the consules
1
missi and the consules electi. The first are professional or
career consuls who are nationals of the appointing state
and are required to devote their full time to the discharge
of their consular duties. The second may or may not be
nationals of the appointing state and perform their con*
sular functions only in addition to their regular callings.
Although consuls enjoy a certain measure of interna-
tional character, their grades or ranks remain a matter of
municipal concern. Under the Consular Convention, how-
ever, the heads of consular posts are das~ified according to
importance into con~uZ.i?e.neml, consul. virP.-consul and
2
consnlar agent.
AppQ>intment
Consuls derive their authority from two principal
sources, viz., the letter patent or lettre de provision, which
' Consular Convention, Art. l, Sec. 2.
2
Ibid., Art. 9, Sec. 2. .
CONSULS 1133
is the commission issued by the sending state,~ and the
exequatur, which is the authority given to them by the
receiving state to exercise their duties therein.4 Hence,
consuls are public officers not only of the sending state but
of the receiving state as well, and are governed by the laws
of both. As in the case of diplomats, states may refuse to
receive consuls and to withhold the exequatur from them
without explanation.
The consent given to the establishment of diplomatic
relations between two states implies, unless otherwise
stated, consent to the establishment of consular relations. 5
However, the severance of diplomatic relations shall not
ipso facto involve the severance of consular relations,6 and
vice versa.
Functions
Generally speaking, the functions of consuls may be
divided into duties pertaining to commerce and naviga-
tion, duties respecting the issuance of passports and vi-
sas, and duties of protection of nationals.
The principal duty of consuls is to promote the com-
mercial interests of their country in the receiving state
and to observe the commercial trends and developments
therein for report to their home government.
They also perform duties relating to navigation, such
as visiting and inspecting vessels of their own states which
may be in t.he consular district, exercising a measure of
supervision over such vess';)ls, adjusting matters pertain-
ing t.o t.hP.ir internal order and discipline: as well as visit-
3
Ibid., Art. 11, Sec. 1.
: Ib~d., Art. 12,.S*e_(;- ;t.
Ibid., Ai:t,. 2, Se,c.12! •
s Ibid., Art. 2, S~i;.~J? .
.. ''.1 1 t d
t H1.t-tl
-:-f:~ 1
.I -~·i
.s, #
t

lJ'lTFllN ATIONAL (,AW
164
ing and inspecting foreign vessels destined for a port of the
sending state.
Consuls are also empowered to issue passports to na-
tionals of the sending state. to visa passports and to issue
documents relating to ~ntry into and travel within the
teni.tory of the sending state, and to visa invoices and
certificates of origin of goods destined for the territory of
that state.
It is likewise the responsibility of consuls to look after
the interests of fellow nationals and to extend them official
assistance whenever needed. Thus, they may authenticate
documents, solemnize marriages, register births and
deaths, temporarily administer the estates of deceased
nationals within the consular district, advise and adjust
differences between their fellow nationals, visit them
when they are arrested or detained by the receiving state,
assist them in proceedings before or in relation with the
local authorities, and inquire into any incidents which
have occurred within the consular district affecting the
interests of such nationals.
7
Immunities and Privileges
It had already been noted that consuls, not being
diplomatic officials, do not ordinarily enjoy the traditional
diplomatic immunities and privileges. However, interna-
tional comity and conventions. have invested them with
certain privileges and immunities which are generally
recognized and observed by civilized states.
By almost universal acceptance, consuls have a right
to official communication and may corrP-~pond ·with their
home government or other official bodies by any means,
including cipher or code, without being subjected to cen-
sorship or unreasonable res~~-aintt However, this right
.; Ibid., Art. 5.
Cetrsuu; 165
may be cmtailed or restricted whenever it is exercised to
the prejudice of the receiving state.6
Consuls also enjoy inviolability of their archives,9
which may not be examined or seized by the receiving
state under any circumstance, nor may their production or
testimony concerning them be compelled in official pro-
ceedings.lo But this immunity does not extend to the con-
sular premises themselves, where legal process may be
served and arrests made without violation of international
law, except only in that part where consular work is being
performed. 11 In the famous case of Mrs. Kasenkina, for
example, the United States rejected a protest made by
Russia against the se1:Vice of a vvrit of habeas corpus upon
the latter's consul at his official residence in New York for
the production of a Russian schoo1teacher alleged to be
detained in the premises. In fact, the consular offices may
even be expropriated for purposes of national defense or
public utility. 12
Respecting criminal offenses, the rule is that consuls
are exempt from the local jurisdiction for crimes commit~
ted by them in the discharge of their official functions. But
with regard to other offenses, they are fully subject to the
local law and may be a1Tested, prosecuted and punished in
proper proceedings. For reasons of comity, however, con-
suls usually are not prosecuted for minor offenses and,
when arrested, are given adequate opportunity to secure
their release on bail at the earliest possible time. 13
Civil suits may be :inst1tuterl agl=lirist const1ls in their
personal or private capacity but not in matters connected
8
Ibid., Art. 35.
9
Ibid., Art. 33.
10
I bid., Art. 44, Sec. 3.
. .~ fbid., Art. 31.
· ~" [bid., Art. 31, Sec. 4.
i{l!ic;l., Arts. 40, 43 .
:J 'i f 1'*2 , •
 Jr,."J'gRNAT!ONAL Lw• CONSULS 167
166
14
with their official duties. 14 In Walthier v. Thomson, a for like. The exequatur may also be withdrawn by the receiv-
example, where a consul was sued for damages resulting ing state, either of the appointing or receiving state may
from certain statements allegedly made by him, it was be extinguished, or war may break out between them. In
held that the "consular official is immune from suit when the event of war, the consulate is closed and the archives
the acts complained of were performed in the course of his are sealed and left in the custody of a Cdretaker, usually a
official duties ... Thus, if the statements allegedly made to consul from a neutral state. The consul from the belliger-
Walthier by Thomson were uttered in pursuance of Thom- ent state is allowed to depart for his own country as soon
son's official functions as a consular officer, then the sug- as possible and without unnecessru-y molestation.
gestion of the ambassador of Canada should be adopted It should be noted that severance of consular rela-
and the defendant held immune." tions does not necessarily terminate diplomatic relations.
Consuls are also generally exempted from taxation, Thus, as an offshoot of the Kasenkina case, Russia a11d the
customs duties, service in the militia, and social security United States discontinued consular relations for more
rules, and are privileged to display their national flag and than fifteen years. During thP t. pP.rinn, howP.oP.r, t.hP.y
insignia in the consulate although these concessions are maintained diplomatic relations.
considered "non-essential'' to the proper dischaxge of their
15
official duties."
These immunities and privileges are available not
only to the consul but also to the members of the consular 16
post, their respective families, and the private staffs. 17
Waiver may in general be made by the sending state.
With respect to acts peifonned by the consul or a consular
officer or employee in the exercise of his functions, immu-
nity from jurisdiction will subsist without limitation of
18
ti me.
Termination of Consular Mission
The consul's office may end in accordance with the
usual modes of terminating official relations, such as re-
moval, resignation, death, Avp-irntion of the term, and the
------·, }
1
• Ibid., Art. 13.
1
•• 189 F. Supp. 319 (1960).
10
Ibid., Arts./!); 50, 52, 48, 29.
16
Ibid., Art. 5'3~1 Secs. 1, 3.
11 1b·d
lA ~ ., Art....4 s·~ee.,l.
; , ·~
Ibid., Art.-!i Se_cs. 3, 4.

CJrnpt.er 14
TREATIES
A TREATY may be defined as a formal agreement, usually
but not necessarily in writing, which is entered into by
states or entities possessing the treaty-making capacity,
for the purpose of regulating their mutual relations under
the law of riations. In, its generic sense, the term treaty
may embrace such other compacts as conventions, declara-
tions, covenants, acts, concordats, etc., although there are
\ recognized variations in their extent or purposes. All such
agreements, when intended to create legal as distin-
guished from moral obligations, are binding on the parties.
An executive agreement is not a treaty insofar as the
concuITence thereto of the Senate is not required under
our Constitution. However, the distinction is purely mu-
nicipal and has no international significance. From the
viewpoint of inte1national law, "treatise and executive
agreements are alike in that both i::-nn~t.it.nt.P. equally bind
1
ing ob1igations 1.1pnn t.hP. ni:it.ion."
Fun~t.ions of Treaties
According to Schwarzenberger, treaties are supposed
to perfonn four important functions. In the first place,
treaties enable parties to settle finally actual and potential
conflicts. Secondly, they make it possible for the parties to
mQdify the rules of jnternational customa.ry law by m8ans
of optional principles or standards. Thirdly, they m~y lean
to a transformation of unorganized international society
1~.S. Sayre, 39Columbia Law Review, p. 75, 1939.
• J; .
168
'fHEA'TIES 169
into one which may be organized on any chosen lev':'l of
social integration. Finally, they frequently provide the
humus for the growth of int.P.rnMiorni I mi::;t.om::iry l:::iw 2
F.ssP.nti~l RP.qnisites of a Valid Treaty
To be valid, a treaty must: (a) be entered into by par-
ties with the treaty-making capacity; (b) through their
authorized representatives; (c) without the attendance of
duress, fraud, mistake, or otlwr vice of i:-onsent; (d) on a.ny
lawful subject-matter; (e) in accordance with their respec
t:jvP. C".On~t:it.11t.ioni:il prnl"P.!':~A!':
(a) Treaty-making Capacity
All states have full treaty-making capacity unless
limited by reason of their status or by previous self-
imposed inhibitions. Thus, the protectorate is restricted in
the control of its external affairs by the protector state; a
neutralized. state may not agree to a defensive or offensive
alliance. On the other hand, there are instances, as al-
ready pointed out, when even mere colonies have been
allowed to sign treaties or join international conferences as
full-fledged members along with sovereign states. The
United Nations and its organs, such as the Security Coun-
cil and the Economic and Social Council, and international
bodies like the World Health Organization, may ~lso enter
into tre.a.tjes.
(b) Authorized Representatives
It is for municipal law to detennine which organ of
the state shall be empowered to enter into treaties in its
behalf The Constitution of the Philippines, for example,
authorizes the President to plake treaties, subject to the
 l•ITEHN!1.TIC%\L LA'"I
170
concurrence of two-thirds of all the members of the Sen-
ate.3 This is in consonance with the general practice of
assigning the treaty-making power to the executive de-
partment of the government, subject to the consent of the
legislature or one of its branches.
There is some conflict regarding the legal effect of a
treaty concluded by an organ of the state without constitu-
tional authority to undertake this function. On this point,
the Harvard Research on International Law declares: "A
state is not bound by a treaty made in its behalf by an
organ or authority not competent under the law to con-
clude the treaty; however, a state may be responsible for
an injury resulting to another state for reasonable reliance
by the latter upon a representation that such organ or
ii authority was competent to conclude the treaty."
~
But this view is disputed by some writers, such as
;
Hackworth, Hyde, and Willoughby, to name a few. McNair
writes that if a party negotiating a treaty produces an
authorization which appears to be complete a nd regular
although in fact constitutionally defective, "the other
party, if it is ignorant and reasonably ignorant of the de~
feet, is entitled to assnme that the instrument is in order
and to hold the former to the 0bligAt.inn of the latter....
(c) Freedom of Consent
It is uniformly recognized that fraud or mistake will
invalidate a treaty as it would an ordinary contract. How-
ever, there is still sbarp differ.ence of opinion on the legal
AffP.cl of duress upon the treaty.
A treaty forced upon the person ()r the uegoti~tor js
unquestionably null and void ab initio, as_was the treaty
signed at Bayonne in 1807 by Ferdinand \11 under threat
~
°I'REA'rIE'3 171
by Napoleon that the Spanish monarch would be tried for
treason if he did not abdicate within twelve hours. A dif-
ferent question will arise, however, if the pressure is ap-
plied not upon the negotiator but upon the state itself, as
in the case of a dictated treaty of peace.
Such a treaty was upheld by earlier writers when war
was still accepted as a legitimate means of compulsion.
With the outlawry of war, however, it is now suggested
that treaties of peace ex.acted from the vanquished bellig-
erent should be regarded "not as voluntary compacts en-
tered into as the price of peace, but rather as a sentence
imposed by the international community upon aggressors
for crimes committed against international law and the
general peace.'.s The flaw in this explanation is that 1t
automatically convicts the defeated state as the aggressor
and would, in effect, sanction the acts of the victorio.us
state even if essentially and undoubtedly illegal.
Lauterpacht perhaps states the better rule when he
observes: ''The position has now probably changed insofar
as war has been prohibited by the Charter of the United
Nations and the General Treaty for the Renunciation of
War. The state which has resorted to war in violation of its
obligations under these instruments cannot be held to
apply force in a manner permitted by law. Accordingly,
duress in such cases must, it is submitted, be regarded as
vitiating the treaty."°
(d) Lawful Subject-Matter
The Tres.ty ofTordesillas in 1494 is an example of an
invalid trPat.y because of the illegality of its 811bject·matter
insofar as it sought to divide between Spain and Portugal
parts of the Atlantic, Pacific and Indian Oceans, which are

l1ITEIU'i ATTONAL LAW
172
open seas under the law of nations. By the same token, a
treaty with such unlawful purposes as traffic in white
slavery or narcotics, which is contrary to international
conventions and public morality, or the operation of the
activities of pirates, who are host?~ lw.nianis 11eneri~,
wonld be null arni void.
(e) Compliance.with Constitutional Processes
The treaty-making process is governed by interna-
tional law except with respect to the method of ratification
as required by the municipal law of most states at present.
Non-compliance with this requisite will prevent enforce-
ment of the treaty even if already signed by the authorized
negotiators.
Treaty-making Proc~~~
The usual steps in the treaty-making process are: ne-
gotiation, signature, ratification, and exchange of the in-
struments of ratification. The treaty may then be submit-
ted for registration and publication under the U.N. Char-
ter, although this step is not essential to the validity of the
agreement as between the parties.
Negotiation may be undertaken directly by the head
of state but he now usually assigns this task to his
· authorized representatives. These representatives are
provided with credentials kno~n as full powers, which
they exhibit to the 1.o ther negotiators at the start of the
formal dier.ussiop~..)~ .i s standard practice for one of the
i
parties to subajt~ ·~ raft of thP. prnposed treaty which,
together with• tMl counter-proposals, becomes the basis of
• -- -r.· "it¥,.'.,,
the subsequen~ n~ot}ations. The negotiations may be
bf.ief or p,r otrac~ji,~~ending on the issues involved, and
may even '!coJ).ap$l7. ip~c~se the parties are unable to come
to an agreemen.tf p}~e.~~nts under consideration. ,,
..
'lREA'l'IES 173
If and when the negotiators finally decide on the
terms of the treaty, the same is opened for signature. This
step is primarily intended as a means of authenticating
the instrument and for the purpose of symbolizing the
good faith of the parties; but, significantly, it does not indi-
cate the final consent of the state in cases where ratifica-
tion of the treaty is required. The document is ordinarily
signed in accordance with the altemat, that is, each of the
several negotiators is allowed to sign first on the copy
which he will bring home to his own state.
Ratification, which is the next step, is the formal act
by which a state confirms and accepts the provisions of a
treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine
the treaty more closely and to give them an opportunity to
refuse to be bound by it should they find it inimical .to
their interests. It is for this reason that most treaties are
made subject to the scrutiny and consent of a department
of the government other than that which negotiated them.
While most treaties now expressly provide that they
shall be subject to ratification according to the constitu-
tional processes of the negotiating states, the weight of
authority is that the requirement would still hold true
even without a provision to this effect in the instrument.
Hence; in the absence of a stipulation to the contral'y, and
more so if ratification is expressly required, an unratified
treaty cannot be a source of obligations between the par-
ties.
But what if the treaty is ratified in viol.ation of the
constitution of the ratifying state, as ,vhen it has not pre-
viously received the required approval of the ·legislature?
The majority view on this question is that "foreign gov-
ernments should be held to a knowledge oft}le·pQnstitu-
tional prerequisites for ratification in each '"cbuntjy with
\ :§if ; which they are dealing; .and ~ .. that a tr;\t) .iw~Cf
has
INS
_ ' .
~~~-l'~
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(1
INTERNATIONAL LAW
1'74
been ratified without proper observance of these require-
ments is ipso facto invalid, whatever the proclamation of
the head of the state may assert in that respect."
1
There is no legal obligation to ratify a treaty, but it
goes without saying that refusal to ratify must be based on
substantial grounds and not on superficial or whimsical
reasons: otherwise the other state would be justified in
taking offense. At times; to avoid total rejection of a treaty,
the ratification.is qualified or made conditional, i.e., with
reservations, in which event the same must be accepted by
the other party 1f these would constitute a modification of
the original agreement.
Finally, it should be stressed that under the Consti-
tution of the Philippines, the power to ratify treaties is
vested in the President and not, as is commonly believed,
in the legislature. The role of the Senate is confined simply
to giving or withholding its consent (a ''veto power" as
Corwin calls it) to the ratification. For that matter, it is
competent for the President to refuse to submit a treaty to
the Senate or, having secured its consent for its ratifica-
tion, to refuse to ratify it. But as a rule, of course, he can-
not ratify a treaty without the concurrence of two-thirds of
all members of the Senate.
The last step in the treaty-making process is the ex-
t:han.ge of the instruments of ratification, which usually
also signifies the effectivity of the treaty unless a different
date bas been agreed upon by the parties. Where ratifica-
tion js dispensed with and no effectivity clause is embod-
ied in the treaty, the instrument is deemed effective upon
r its signature.
.Under Article 102 of the U.N. Charter, a treaty not .
registered with the Secretariat, by which it shall be pub- .
lish~, .~ o t be invoked before any organ of the United.. "~
.. -
,I
• .'
• ..
• ti \I,
-,
~. I .
i F
•
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enwtCn;·-4$6. I I
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TP.Ei\'flES 1'7fi
Nations, such as the international Court of Justice. Never-
theless, the treaty does not cease to be binding between
the parties and may be the basis of a litigation before some
other arbitral or judicial body not connected with the
United Nations. This is a modification of the rule under
the Covenant of the League of Nations, which provided
that. treaties not. registernd An<l p11hliRhro Rhall hP- null
and void.
Binding F.ffP.~t. nf 'fu=>M.iP.!i:
As a rule, a treaty is binding only on the contracting
parties, including not only the original signatories but also
other states which, although they may not have partici-
pated in the negotiation of the agreement, have been al-
lowed by its terms to sign it later by a process known as
accession. Non-parties are usually not bound under the
maxim pac-ta tertiis nee nocent nee prosunt.
There are instances, however, when third states may
be validly held to the observance of or benefit from the
provisions of a treaty. Firstly, the treaty may be merely a
formal expression of customary international law which,
as such, is enforceable on all civilized states because of
their membership in the family of nations. An example
would be the Hague Conventions of 1899 and 1907. Sec-
ondly, it is provided under Article 2 of the U.N. Charter
that the Organization "shall ensure that non-member
States act in accordance with the principles of the Charter
so far as may be necessary for the maintenance of intema-
tion.al peacP. and security," and under Article 103 tnat. the
obligations of member-states shall prevail in ca.se. of con-
flict with "any other international agreement," including
those concluded with non-members. Thirdly. the treaty
itself may expressly extend -its ~enefits to non-signatory
I i l -5,,, states, such as the Hay-Pau:q.~fol:e Treaty of 1901, which, .
·-.
. \ ,.,
•..i.l;:t,tfi!:,,-j
,1
1 ,_ .·:z'
.,1.~
-i l
, •. . ,L ..~ -.
··· ··"•i'·. .. , .••
11.~-.:, i:
although concluded only by ,tb,e United
• .. ~
States and Great
i::- '!&
• !-, ,~ ~· ,.
- ~ ....7 .J'! ' . ' -~ ii
•. ~,.;. . . .. i :- ~·.' ~; ,-.':!'
 176 INTERNATIONAL L'\W
Britain, opened the Panama Canal "to the vessels of com-
merce and of war of all nations observing these Rules, on
terms of entire equality."
Parties to apparently unrelated. treaties may also be
linked by the most-favored-nation clause, under which a
contracting state entitled to most-favored-nation treat-
ment from the other may claim the benefits extended by
the latter to another state in a separate agreement. To
illustrate, if X agrees to extend most-favored-nation treat-
ment to Y and there.fl.fi:P.r grants tariff preferences to Z
under :mother treaty. Y will be entitled, by virt.ue of it!::
\
treaty with X, to enjoy the same advantages conceded to Z.
Observance of Treaties
One of the fundamental rules of international law is
pacta sunt servanda, which requires the performance in
good faith of treaty obligations. Despite supervening hard-
ships such as conflicts with the municipal law or prejudice
to the national interest, the parties must comply with
their commitments under a treaty and cannot ignore or
modify its provisions without the consent of the other sig-
natories. Willful disregard of a treaty is frowned upon by
the society of nations and is likely to stigmatize the erring
state, especially if the other contracting parties see fit to
invoke the influence of world opinion as a means of en-
forcing compliance. Violations of treaties can lead to more
clra.c;.tic consequences, including war.
In Taiiada v . .Angari:t,7" the Supreme Cou.1.t observed:
One ,:>f th .. nlil<>!'t ~,,d fi.1T1rlMnental rules in inte':"T'"H,m~ 1
law is pacta sunt servanda-international agreements must be
performed in good faith. "A treaty engagement is not a mere
moral obligation but creates a legally binding obligation on
the parties xxx A state which has contl'acted.iYalid interna-
7• G.R. No. 118295, May 2, 1997. ·I I
•
~-a·.
j.
£'
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.. ...
•
J (
TREATIES 177
tional obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of
the obligations undertaken."
By their inherent nature, treaties really hmit or restrict
the absoluteness of sovereignty. By their voluntary act, nations
may surrender some aspects of their state power in exchange
for greater benefits granted by or derived from a convention or
pact. After all, states, like individuals, live with coequals, and
in pursuit of mutually covenanted objectives and benefits, they
also commonly agree to limit the exercise of their otherwise ab-
solute rights. Thus, treaties have been used to record agree-
ments between States concerning such widely diverse matters
as, for example, the lease of naval base, the sale or cession of
territory, the termination of war, the regulation of conduct of
hostilities, the formation of alliances, the regulation of com-
mercial relations, the settling of claims, the laying down of
rules governing conduct in peace and the establishment of in-
ternational organizations. The sovereignty of a state therefore
cannot in fact and in reality be considered absolute. Certain
restrictions enter into the picture: (1) limitations imp<)sed by
the very nature of membership in the family of nations and ~2)
lim.itati<::>n.e iIT'rt;>s':',:1 hy ~"':"<>ty !>.l:ip•.•l<it~')r•.s.
It has already been observed that when a treaty con-
flicts with the constitution of one of the parties, the former
is nevertheless internationally binding although unen-
forceable under municipal law. The reason, according to
Willoughby, is that "peculiarities of constitutional struc-
ture are without intem&tional significance to other states.
Each state, as a member of the international society of
states, has an organ or government through which it
communicates with and enters into contractual and other
relation~ wit.h other 8tates. Whatever undertakings are
enternd jnto by such Ot'g'ani:; arP. internationally binding
upon the states which th~y represent."5
Under these circumstances, the state called upon to
,
8
Willoughby,
,.
~
-' ·,·t..fll.
- .;..
,
..
perform its obligatipns may ask for a revision of the treaty,
Fuiia~ental
· :«·-""
,
-._
Concepts of Public Law, 315, .
....-1
.
l ~g
I -
fNTF.RNA'l'IOtJAL LAW
amend its constitution to make it confo1m to the treaty
requirement, or pay damages to the other parties for its
inability to comply with its commitments.
But despite the general requirement of strict en-
forcement of treaties, states have on occasion invoked the
doctrine of rebus sic stantibus, which Jessup describes as
"the equivalent exception to the maxim pacta sunt ser-
vanda. ..& According to. him, "the doctrine constitutes an
attempt to formulate a legal principle which would justify
non-performance of a treaty obligation if the conditions
with relation to which the parties contracted have changed
so materially and so unexpectedly as to create a situation
in which the exaction of performance would be unreason-
able." 10 Thus, to use his own illustration, if states A and B
agree upon the reciprocal use of their respective port facili-
ties and B's only important port is thereafter ceded to
state C, A should be released from continuing to accord the
treaty privileges to B, which is no longer able to perlorm
its obligation.
The Draft Law of Treaties prepared by the Jnt.erna-
tional Law Commission r~cognizes the doctrine as a mod':'
of terminating t.r PJ'lt.iP.~ in the following pr0vi~i,m :
Where a fundamental change has occurred with regard to
a fact or situation existing at the time when the treaty was en-
tered into, it may be invoked as a ground for terminating or
withdrawing from the treaty if:
a. The existence of that fact or sit uation constituted an
essential basis of the cons~nt of the parties to the treaty; and
b. The effect of the change is to tra11sform in an essen-
tial respect the charact er of th'c' nl-.lig::itiorn=i undertaken in the
treaty.
• Q Jessup, 150.
IO Ibid.
'I'REATIBS ) '7!=1
The doctrine of rebu:;; sic stantibus was invoked by the
United States when it announced that it would no longer
consider itself bound by the International Load Line Con-
vention, which was concluded in 1930 to limit interna-
tional competition in the loading of cargo vessels. In justi-
fying its stand, it claimed that the agreement contem-
plated peacetime commerce and voyages and that because
ten of the thirty-six signa tories were at war and the other
twenty-six were maintaining a "precarious neutralityt the
situation int.ended to be regulated had become "a wholly
different one." Accordingly, President Roosevelt declared
that "under approved principles of international law, it
has become, by reason of such changed conditions, the
right of the United States of America to declare the Con-
vention suspended and inoperative."11
It is to be noted, however, that the doctrine of rebus
sic stantibus is subject to the following limitations: (a) it
applies only to treaties of indefinite duration; (b) the vital
change must have been unforeseen or unforeseeable and
should not have been caused by the party invoking the
doctrine; (c) the doctrine must be invoked within area-
sonable time; and (d) it cannot operate retroactively upon
the provisions of the treaty already exeCJited pri.or to the
('hl:lnge Qf cireumstances. 12
Treaty Interpretation
As in the case of contracts, the basic rule in the inter-
pretation of treaties is to give effect to the intention of the
parties. This should be discoverable in the terms. of the
treaty itself, which ordinarily has an official text or texts to
be used in case of conflicts in interpretation. Most treaties
-t ":"
; 6 Fed. Reg. 3999 (1941), cited in Hackworth, Vol. V, J>.
2
351,:c
Kelsen, 358-368; Fenwick, 354-355; Wilson and, Tucker,t2'j~;
'Brierly
f ~ - .-.
245. .t
... ! 1 •
.• t ~
180 I1JTEIUJA'TfONAl. l .AW
also contain a "pr otocol" or "agreed minutes" in which
certain terms used in the body are defined and clarified .
The usual canons of statutory construction are em-
ployed in the interpretation of treaties. Thus, to mention a
few, specific provisions must be read in light of the whole
instrument and especially of the purposes of the treaty.
Words used are to be given their natural meaning unless a
technical sense was intended, and, when they have differ-
ent meanings in. t h e contracting states, should be inter-
preted in . accordance with the usage of the state where
they are supposed to take effect. Doubts should be r e-
solved against the imposition of obligations and in favor of
the freedom and sovereignty of the cont racting parties. At
all event.s, an interpretation that will lead to an absurdity
is to be avoided and a more rational result preferred.
Where intrinsic aids are unavailing, resort may be
made to extrinsic aids, such as the circumstances leading
to the conclusion of the treaty, statements recorded at the
time of the negotiations, the p1·eliminary materials used,
i.e., the travau.."C preparatories, and the like.
Needless to say, conflicts in treaty interpretation may
be resolved only by agreement of the parties themselves or
by an international body and not uml~terally by the na-
tional courts of the contracting parties. Decisions of such
courts are received with refl.p~,:t. but not RB ~.ut.hority.
Termination of Treaties
A treaty may be terminated in any of the following
ways:
(1) By expir::itjno. of the ter.m, which may be fixed or
s ubject to a resolutory condition.
(2) · By accomplishment of the purpose.
(3) By impossibility of performance.
(4), By loss of the subject-matter.
1
rREA'l'lJ<;S 181
(5) By desistance of the parties, through express
mutual consent; desuetu.de, or the exercise of the right of
denunciation (or withdrawal), when allowed.
(6) By novation.
(7) By extinction of one of thA p i:nt.iP~ if the t.re~tv i!'.l
bipartite.
(8) By vital change of circumstances under the doc-
trine of rebus sic stantibus.
(9) By outbreak of war between the parties in most
cases, save specifically when the treaty was intended to
regulate the conduct of the signatories during the hostili-
ties, or to cede territory, or to fix boundaries. AB held in
Techt v. Hudges,13 provisions of a treaty compatible with a
state of hostilities, unless expressly terminated, will be
enforced, and those incompatible rejected.
(10) By voidance of the treaty because of defects in
its conclusion, violation of its provisions by one of the par-
ties, or incompa tibility .vith intemation::11 hn,v or thP. O.N.
Charter.
13
128 N.E. 185 (1920).
,~.~ l 11
Chapter 15
NATIONALITY AND STATELESSNESS
IT HAS ALREADY BEEN STRESSED that, save in cer-
tain cases, the individual is merely an object and not a
subject of international law and is thus not directly gov-
erned by its rules, both in the enjoyment of rights and in
the performance of duties. Ordinarily, the individual can
participate in international . relations only through the
instrumentality of the state to which he belongs, as when
'. his government asserts a diplomatic claim on his behalf
for injuries he may have suffered in a foreign jurisdiction.
Th.is remedy is generally not available to him if he is
stateless for there would then be no entity with interna-
tional persona lity to intercede for him for the protection or
vindication of his rights under the law of nations. Viewed
in this light, nationality acquires not only municipal but
international significance.
Nationality is the µe that binds an individual to his
state, from which he can cla im protection and whose laws
he is obliged to obey. In other words, nationality is mem-
bership in a political community with all its concomitant
rights and obligations. This term is often used inter-
changeably with citizenship, which however, has a more
exclusive scope in that jt applies only to certain members
of the state accorded more privileges than the rest of the
people who also owe it allegiance. Thus, during the Ameri-
can regime in tb{s country, Filipinos and Amerioms w~re
both considered nationals of the 'United Stat.Rs d.s a.· 1:iB
oth er states but Filipinos were n evertheless not entitled to
American citizenship rights for purposes of the admini-
stration of the internal affairs of the paren~ stat;e, such as
182 ·
N A'l'IONALITY AMl STATELESSNESS 183
the right to vote for its public officerR like the President of
the United States. The term subject, on the other hand,
has particular reference to the naLionals of monarchial
regimes, e.g., a British sub.iect, who may be a citizen of the
rTnit.P.d Kingnom or of nnP. of it.~ ~ol oniP.C\.
Acquisition of Nationality
Nationality may be acquired by birth or by naturali-
zation. An individual acquires the nationality of the state
where he is born jure soli or the nationality of his parents
jure sanguinis. Naturalization, on the other hand, is a
process by which a foreigner acquires, voluntarily or by
operation of law, the nationality of another state.
Naturalization may be direct or derivative.
Direct naturalization is effected: (a) by individual
proceedings, usually judicial, under general naturalization
laws; (b) b) special act of the legislature, often in favor of
distinguished foreigner,3 who have rendered some notable
service to the local stat.e; (c) by collective change of na-
tionality (naturalization en masse) as a result of cession or
subjugation; and (d) in some cases, by adoption of orphan
minors as nationals of the state where they are born.
Derivative naturalization in turn is conferred: (a) on
the wife of the naturalized husband; (b) on the minor chil-
dren of the naturalized parent; a nd (c) on the alien woman
upon man-iage to a national. 1 Derivative naturalization
does not always follow as a matter of course, for it is usu-
ally made subj8ct t.o stringent restrictions and conditions.
Our mYn law~, for inFtance, provide that an alien wom8n
married to a Filipino shall acquire his citizenship only if
she herself might be lawfully naturalized.2
I
Hackwm:th, )l.-3 .
2
t:!1~
~ t Yao v. Commissioner ofl.mmigration, L-21289,,
• See
Oct. 4, 1.9J l.
t 1
11._u·. .f >
~
..
.
fj t ~
-1; .. i :
~
184 l1"TF.RNATTONAL LA\V
M \1 ltiplP. Nationality
An individual may sometimes find himself possessed
of more than one nationality because of the concurrent
application to him of the municipal laws of the states
claiming him as their national. For example, a child born
in the United States of Filipino parentage would be a citi-
zen of that country under the jus soli as prescribed by
American law and at the same time a citizen of the Philip·
pines under our Constitution, which recognizes only the
jus sanguinis. Again, under the doctrine of indelible alle-
giance, as observed by some states, an individual may be
compelled to retain his original nationality notwithstand
ing that he has already renounced or forfeited it under the
laws of a second state whose nationality he has acquired.
An illustration would be the case of a woman who
upon marriage to a foreigner continues t:o be a national of
her own state under its laws while also acquiring her hus-
band's nationality in accordance with the laws of his
state.29 Also in point is the William's Case,3 where an
American citizen who had accepted a commission in the
French navy was convicted of violating the Neutrality Act
of 1874 notwithstanding his defense that he had boon
naturalized in France; the court held that he had no power
to renounce his allegiance without the consent of the
United States and was, therefore, still subject to it~ la'l\1'3.
By contrast, a state may allow any of its nationals to
remain as such even if he may have acquired another na-
tionality, as where he is conferred an honorary citizenship
by a foreign government.
i .. Phil. Constitution, Art. III,
~ ::' i::t• ...~ :
Sef ~] i, .'.: -
3
U.S. Ci1:. Ct. Dist., 1799; Fen~iclt,f ~ ~· 152.
-,tll - l.t·,--·
- 'i . . 1· ·t., .
'f1I . ~.·.·at'•
N A I HJ'. ~ALI'l'Y A?-: D 8Ti\TELESSNESS V.~!5
Loss of Nationality
Nationality may be lost voluntarily or involuntarily.
The voluntary methods include renunciation, express or
implied, and reque!:,t for release, both of which usually
precede the acquisition of a new nationality. The involun-
tary methods are fo,feiture as a result of some disqualifi-
cation or prohibited act like enlistment in a foreign army
or long continued residence in a foreign state, and substi-
of
tution one nationality for another following a change of
sovereignty or any act conferring derivative naturaliza-
tion.4
Conflict of Nationality Laws
To provide against conflicts arising from divergent
municipal laws on nationality, the following rules were
embodied in the Hague Convention of 19::lO on fh'l C:onflir.t
ofN M.ion::iliry T·?.w~:
Art. 1. It is for each Stat.e to determine under its law
who are its nationals. This law shall be recognized by other
States insofar as it is consistent with international conven-
tions, international customs, and the principles of law gener-
ally recognized with regard to nationality.
Art. 2. Any question as to whether a person possesses
the nationality of a particular State shall be determined in ac-
cordance with the law of the State.
Art. 3. Subject to the provisions of the present Conven-
tion, a person having two or more nationalities may be re-
garded as its national by each of the States whose nationality
he possesses.
Art 4. A State may not afford diplc,matic protection to
one of its nationals against a State whose nationality such per-
son also possesses.
Art. 5. Within a third State, a person having more -
~-,. th~:'l on:_:ationality shall be treated as if he had only one~ ~ JJ
- .!=i·· li;.
·lif
i_.lJ.f;; :,,
?.}. ~ i
.
. .
rnR 00£ftNA'r1,·1N:,L LAW
Without prejudice to the application of its law in matters of
personal status and of any convention in force, a third State
shall, of the nationalities which any such person possesses,
recognize exclusively in its territory either tho nationality of
the country in which he is habitually and principally resident
or the nationality of the country with which in the circum-
stances he appears to be in fact most closely connected. (Prin-
ciple of Effective or Active Nationality)
Art. 6. Without prejudice to the liberty of a State to ac-
cord wider rights to renounce its nationality, a person pos-
sessing two nationalities acquired without any voluntary act
on his part may renounce one of them with the authorization of
the State whose nationality he desires to surrender. This
authorization may not be refused in the case of a person who
has his habitual and principal residence abroad, if the condi-
tion laid down in the law oft.hi> !=::b,t.. ._.,1,""" n'!\ti,.,nality he de-
sires to surrender are satisfied.
Thus, where a person possesses both Philippine and
American nationality, his claim to Philippine nationality
shall be decided on the basis alone of Philippine law, to the
exclusion of all other laws. If, on the other hand, he claims
American nationality, the matter shall be resolved on the
basis alone of American law, to the exclusion of all other
laws.
But if the issue of his real nationality is raised in a.
third state, say Spain, the laws of that country will obvi-
ously be inapplicable as h e does not claim Spanish nation-
ality. In this situation, Spain shall apply the principl~ of
effective or active nationality, under which the dual na-
tional shall be considered the national exch1i::iivP.ly of r.h"'
state .vith .vhich hP. is mni;:.t. r.l"~l:'ly i::onneded.
N,-\TIONALTTY ANO STATJ::IR~!':l\lJ?"::S
187
1JNITED STATES (ALEXANDER TET ,T ,RGB) v.
AUS'I'R.TA AUD HUNGARY
Tripartite Claims Commission, 1928; Decisions
and Opinions (1929), p. 71
Question: Could the Austrian government subject
Alexander Tellech, who was born of Austrian parents in
the United States, to compu1sory military service?
Held: "The action taken by the Austrian civil autho-
rities in the exercise of their police powers and by the Aus-
tro-Hungarian military authorities, of which complaint 1S
made, was taken in Austria, where claimant is voluntarily
residing, against claimant as an Austrian citizen. Citizen
ship is determined by rules prescribed by municipal law.
Under the law of Austria, to which claimant had volun-
tari1y subjected himself, he was an Austrian citizen. The
Austrian and the Austro-Hungarian authorities were well
within their rights in dealing with him as such. Possessing
as he did dual nationality, he voluntarily took the risk
incident to residing in Austrian territory and subjecting
himself to the duties and obligations of an Austrian citizen
arising under the municipal laws of Austria."
THE CANEVARO CASE
Tribunal of the Permanent Court of Arbitration,
1912; Scott, Hague Court Reports, 284.
Question: May Ita ly file a diplomatic claim agairist
Pero. on behalf of Rafa.el Canevi:iro, who is a national of
both stat-':!s undP.r t.1,1'\;,._. respective m •.u,ii:-ipal laws?
Held: "Whereas, according to Peruvian legislation
(34 of the Constitution), Rafael Canevaro is a Peruvian by
birth because born on Peruvian terr-itory, and, whereas, on
the other hand, according to Italian legislation (Article 44
of the Civil Code) he is of Italian iiationali ·u1 .
. ~ ~use born
. : fl ,.·'t~,l;,i
. "..~. ~· ·
!l!!.
NI
lNTERl'lJ\'I'J0N~T T,t,:W
188
of an Italian father; whereas, as a matter of fact, Rafael
Canevaro had on several occasions acted as a Peruvian
citizen, both by running as a candidate for the Senate,
where none are admitted except Peruvian citizens and
where he succeeded in defending his election, and, par-
ticularly, by accepting the office of Consul-General for the
Netherlands, after having secured the authorization of
both the Peruvian Government and the Peruvian Con-
gress; . . . under these circumstances, whatever Rafael
Canevaro's status as a national may be in Italy, the Gov-
ernment of Peru has a 14ight to consider him a Peruvian
citizen and to deny his status as an Italian claimant..."
THE NOTTEBOHM CASE
I.C.J. Reports, 1955, p. 4 (Judg. April 6; 1955)
Facts: Nottebohrn, a German by birth, had been a
resident of Guatemala for thirty~four years when he ap-
plied for and acquired naturalization in Liechtenstein one
month before the outbreak. of World War II. Many mem-
bers of his family and his business connections were in
Germany. In 1943, Guatemala, which had declared war on
Germany, confiscated all his properties on the ground that
he was an enemy national. Liechtenstein thereupon filed
suit against Guatemala on his behalf as a naturalized
citizen of Liechtenstein.
Question: Was Nottebohm'R naturalization in Liech-
tenstein binding on Guatemala?
Held: "The courts of third States, when they have
before th':lm an i.ndividl, ~l \Vhom two cit.h er States hold to
be their national, seek to resolve the conflict by having
recourse to international criteria and their preva.iling ten-
¢tency is to prefer the real and effective nationality. . .
.
(Nottebohm's) actual connections
. .,
with Liechtenstein were
~emely tenuous. No settled abode, no prolo1tg,.ed resi-
} -
~·# ·~ ~ ·"-
l
·i
~ •;
NATIONALITY ANn STA·ri::1.eSSNESs 189
dence in that country at the time of his application for
naturalization . . . No intention of settling there was
shown at that time or realized in the ensuing weeks,
months or years-on the contrary, he returned to Guate-
mala very shortly after his naturalization and showed
every intention of remaining there ... Naturalization was
asked not so much for the purpos<:-) of obtaining a legal
recognition of Nottebohm's membership in fact in the
population of Liechtenstein, as it was to enable him to
substitute for his status as a national of a belligerent State
that of a national of a neutral State, with the sole aim of
thus coming wjthin the protection of Liechtenstein but not
of becoming wedded to its traditions, its interests, its way
of life or of assuming the obligations-other than fiscal
obligations-and exercising the rights pertaining to the
status acquired.
"Gu~temala iR under no obligation to recognize a na-
tionality granted in such circumstances. Liechtenstein
consequently is not entitled to extend its protection to
Nottebohm vis-a-vis Guatemala and its claim must, for
this reason, be held to be inadmissible."
Statelessness
Statelessness is the condition or status of an individ-
ual who is born without any nationality or who loses his
nationality without retaining or acquiring another. An
example of the first case would be that of a child born in a
state where only thejus sanguinis is recognized to parents
whose state observes only the jus soli. The second case
may be illustrated by ar1 individnal who after renO'•Jn.-ing
his original nationality in order to be naturalized in an-
other state is subsequently denaturalized and is thereafter
denied repatriatiorr 1:5y his former country.
In such cases;'" the individual is, from the traditional
viewpoint, powerless to !a~sert any right that otherwise
t ' .. . . -
-$- ' _;·
. f. i.
... . ·"
mo LWERNATIO.NAL LA"; NArn)1'·,LlTY AND STATELESSNESS 181

would be available to him under international law were he
a national of a particular state. Any wrong suffered by him
through the act or omission of a state would be damnum
absque injuria for in theory no other state had been of-
fended and no international delinquency committed as a
result of the damage caused upon him. This is so because
any injury to the individual by a foreign jurisdiction is,
legally speaking, not a violation of his own right hut of the
right of his state to the protection of its nationals; the right
to complain belongs not to him but to th~ stat':' nf whi<>h he
;~ i:i n~t.ional. As explained ii, onP. ~M,P.:
The relation of rights and obligations created between
two States upon the commission by one of them of an act in
violation of International Law arises only among States subject
to the international juridical system. There does not exist in
that system. any relation of responsibility between the trans-
gressing State and the injured individual for the reason that
the latter is not subject to International Law. The injury in-
flicted upon an individual, a national of the claimant State,
which implies violation of the obligation imposed by Interna-
tional Law upon each member of the Community of Nations,
constitutes an act internationally unlawful, because it signifies
an offense against the State to which the individual is united
by bond of nationality. The only juridical relation, therefore,
which authorizes a State to exact from another the perform-
ance of conduct prescribed by International Law with respect
to individuals is the bond of nationality. This is the link exist-
ing between that law and individuals and through it alone are
individuals enabled to invoke the protection of a State and the
latter to intervene in their behalf. A State, for example, does
not commit an international delinquency in inflicting an in·
jury upon an individual lacking nationality, and consequently
no Swte is empowered to interwme or complain '"'.l hi~ hA!i,ilf
either before or after the inj u1y.
of nationality by an individual upon hi8 retention or acqui-
sition of another nationality, whether such loss be by ex-
patriation, naturalization as to the wife and minor chil-
dren, or adoption. In t.he case of naturalization, the wife
and children retain their existing nationality if they are
not also naturalized and, moreover, the wife will acquire
her husband's new nationality, if permitted, only with her
own consent. The adopted child's existing nationality is
also not lost if he does not acquire the adopter's national-
ity. In other cases, it is provided that children shall have
the nationality of the state of their birth whenever their
parents are: (a) unknown; (b) stateless or of unknown
nationality; or (c) a father who is stateless or of unknown
nationality and a mother who is a national of the state
where they are born.
All this does not mean, however, that a stateless in-
dividual is entirely without recourse under the law of na-
tions. Under the Covenant Relating to the Status of
Stateless Persons, adopted in 1954, he is entitled to,
among others, the right to religion and religious instruc-
tion, access to courts, elementary education, public relief
and assistance and rationing of products in short supply,
as well as t:reatmP.nt no lP.ss favorable than that accorded
to aliens generally. Moreover, the terms of the Universal
Declaration of Human Rights are sufficiently broad to
encompass the stateless individual with its protection and
sympathy as a member of the human family.

It was in view of this difficulty that the Hague Con-

vention of 1930 adopted certain rules calculated to avoid
the condition of statelessness and all its attendant incon-
veniences. Briefly stated, tbes}
.,, . rules would condition loss
'-. II
f E -.,; .:
- :- ra ·
•. 1" \ :..

Chapt':'T' lR
TRE.ATMENT ()F ALIENS
IT IS WELL SETI'LED that every state has the right, as
inherent in sovereignty and essential to its own security
and existence, to deterntin~ in what cases and under what
conditions foreign~rs may be admitted to its territory. If it
sees fit, it may even bar their entry altogether. Once it
decides to accept them, however, its competence ~s territo-
rial sovereign is limited by the requirement that they be
treated justly, in accordance with the law of nations. If
this duty is not observed, the alien and his state would
have va lid cause for complaint.
This is not to suggest that the a lien is entitled to spe-
cial treatment over and above that accorded the national
of the local state. On the contrary, the alien cannot as a
rule claim a preferred position vis-a-vis the national of the
state where he is at best only a guest. Thus, the foreigner
may not enjoy the right to vote, to run for public office, to
exploit natural resources, or to engage in certain busi-
nesses regarded as vital to the interests of the local state.
Denial of su ch prerogatives is a sovereign act of the local
estate to which the foreigner must be prepared to submit.
It is, in fact, a cardinal rule of international law that
the foreigner must accept the institutions of the local state
as he finds them. 1 This rule is better stated in the saying,
"Wben in Rowe, do as th~ Romans do." Considering his
less privileged position, he cannot demand that the ways
of his host country be altered to suit his own convenience
or adjusted to gratify his own interests. This would mili-
' Jess~.V· 103.
192
ThEATMEm OF Al.TF.l'lS
193
tate against the independence of the state and subordin ate
its own will to the welfare of the alien.
It is also an accepted principle that the state is not an
insurer of the life or property of the alien when he is
2
within its territory. Like all individuals exposed to the
incidents of social intercourse, he is expected to take the
customary precautions for the protection of his own rights
and to avail himself of the usual remedies when these
, rights are violated. Accordingly, the state generally cannot
be held responsible if the alien is victimized by a pick-
pocket or a swindler or is hurt in an accident through the
fault of another individual and is unable to redress the
wrong done to him. The relation between him and the
state in these cases is too tenuous to make the latter liable
for the injury he has sustained.
The Doctrine of State R esponsibility
Notwithstanding the above observations, there are in-
stances when the alien can claim a more favored position
than the national of the local state and, in proper cases,
hold the state liable for injuries comnutted against him
while within its territory. Such instances are governed by
what is known as the doctrine of state responsibility. Under
this doctrine, a state may be held responsible for: (a) an
international delinquency (b) directly or indirectly imput-
able to it (c) which causes injury to the national of another
state. Liability vrill attach to the state where its treatment
of the alien falls below the international standard of justice
or where it is remiss in according him the protection or
redress that is wan-anted by the circumstances.
The doctrine of state responsibility bas been fre-
quently invoked in recent tjmes because of the expanding
2
]bid.
·,
HM lM'I'F·'ANATTONAL LAW
need and desire of nations for wider relations in their
commercial and cultural activities. Its function is to assure
the traveler that when his rights are violated in a foreign
state, he will not be denied any remedy simply because he
is not one of its nationals. The idea, in other words, is to
encourage more intercourse among the peoples of the
world through inter-visitation of their respective countries.
The Intern~tirnrnl ~t.andard of J ustfo<E'
The int.ernatwnal standard of justice is a concept of
controversial content that has defied precise definition.
Some writers describe it as the standard of the reasonable
state, that is, as referring to the ordinary norms of official
conduct observed in civilized jurisdictions. As thus envi-
sioned, the international standard of justice is deemed not
satisfied if the laws of a state are intrinsically unjust, as
when there is a marked disproportion between the degree
of an offense and the penalty imposed for it, e.g., when a
minor crime like petty theft is punished with death. The
laws will also be below this standard if they authorize the
summary decision of contentious cases without the obser-
vance of the usual rights to notice and hearing and other
generally accepted requirements of due process.
Where the laws of the state fall below the interna-
tional standard of justice, it is no defense that they are
applicable not only to aliens but as well, and equally, to
the nationals of that state. The relations of that state with
its own nationals are purely municipal; international law
is involved in its relations with the nationals of other
states. Hence, while the national may not dema.nd, say,
the right of confrontation if this is not granted bv the local
law, the foreigner can. This is the view morP. generally
favored as against the so-called doctrine , qf equality of
treatment. '
'l'REAn1ENT OF Al,lE!-:~ 195
The test of the international standard of justice was
applied in the Chattin Case,3 where the United States fi!ed
a claim on behalf of a national who was allegedly arrested,
tried and sentenced illegally by the Mexican government
and subjected to inhuman treatment in jail. In upholding
most of the charges filed by the claimant, the arbitrators
declared in part:
The whole of the proceedmgs discloses a most astonish-
ing lack of seriotasness on the part of the Court. . . Neither
during the investigation nor during the hearings in open court
was any such thing as an oral examination or cross-
examination of any importance attempted. It seems highly im-
probable that the aci:used have been given real opportunity
during the hearings in open court, freely to speak for them-
selves. It is not for the Conunission to endeavor to reach from
the record any conviction as to the innocence or guilt of Chattin
and his colleagues; but even in case they were guilty, the
Com.mission would render a bad se1vice to the government of
Mexico if it failed to place the stamp of its disapproval and
even indignation on a criminal procedure so far below interna-
tional standards of civilization as the present one ...
Bringing the proceedings of Mexican authorities to the
test of international standards . . . there can be no doubt of
their being highly insufficient. Inquiring whether there is con-
vincing evidenc~ of thes~ unjust proceedings ... the answer
must be in the affirmative. Since this is a case of alleged re-
sponsibility of Mexico for injustice committed by its judiciary,
it is necessary to inquire whether the tr~atment of Chattin
amounts even to an outrage, to bad fait.h, to wilful neglect of
duty, or to an insufficiE>11cy of government action recogni1able
by every unbiased mim ...; and the answer her~ ?.g~i.n "an only
hP. in the affirmative.
Failw·e of Protection or Redress
Even if its laws conform to the international standard
of justice, the sh1te may st.i.ll be held liable if it does not
make reasonable effq_rts to prevent injury to the ~liP.n m-,
.' f
' U.s: (Ch..a71
· ,){it'' fxi.co, General Claims Commission, 1921.
" . t .....l:i:
,if ~ - - t } ;. . . . .} ff }
H)6 J~rrEP!-J&'T'l()NA1. LAw
having done so unsuccessfully, fails to repair such injury.
Thus, the state will be h eld liable if a foreigner is killed
and is shown that its authorities were informed in ad-
vance of the plot to kill him but did not act to forestall it.
Furthermore, even if it did take reasonable precautions,
the state would still be held liable if it thereafter does not
employ the necessary diligence to anest and punish the
malefadors or !)therwise redress the wrong committed.
The degree of diligence required must, of course, vary
with tne circumstances of every case. It is not as easy to
control a riot as it is to prevent an individual crime, nor
are the problems invariably the same in the apprehension
of the criminals. In the Noyes Case,4 for example, the Re-
public of Panama was not held liable for injuries sustained
by an American national from an unruly and intoxicated
crowd in a small village, it having been shown that the
local police force of three members was reinforced when
disorder was apprehended, that a policeman and the po-
lice chief himself tried actively to protect Noyes when he
was attacked, and that it was not possible to pinpoint the
culprits in view of the tumultuous nature of the incident.
By contrast, compensation was awarded to the
Unit.ed States in the Youmans Case, 5 where it was shown
that the very troops sent to disperse a Mexi.can mob joined
it in killing a n 1Jmber of Americans. In the Galvan Case,6
the reason for holding the United States liable for the
killing of a Mexican in Texas was not the failure to appre-
hend the criminal but the unreasonable delay in his prose-
cution, which dragged inconclusively for six years. For its
part, Mexico was ordered to pay damages to the United
• U.S. (Noyes) v. Pa nama, .General Claims Commission, 1933.
$ U.S. (Yownans) v. Mexico, Opinions of the Commissioners,
1927.
• Mexico (Galvan) v. U.S:, Opipions of the Commissioners, 1926.
f!
1'~1!:ATMEN'f 0~· A 1.l li'l.l~
197
States in the Janes Case, 1 where it appeared that eight
years had already elapsed and the known murderer of an
American national ha~ not yet been arrested and punished.
It is important to.remember in this connection that re-
sponsibility does not irrunediately attach to the state upon a
showing of a failure to prevent or redress an injury to ali-
ens. Distinction must be made between direct and indirect
state responsibility. The rule is that where the interna-
tional delinquency was committed by superior government
officials or organs like the chief of state or the national leg-
islature, liability will attach immediately as their acts may
not be effectively prevented or reve1·sed under the constitu-
tion and laws of the state. However, where the offense is
committed by inferior government officials or, more so, by
private individuals, the state will be held liable only if, by
reason of its indifference in preventing or punishing it, it
can be considered to have connived in effect in its commis-
sion.
Exhaustion of Local Remedil::'-~
Bti.t even assurnin~ the liability of the state for an in-
ternational delinquency, its enforcement cannot be
claimed by the injured foreigner unless he first exhausts
all available local remedies for the protection or vindica-
tion of his right:s. 8 This is a corollary of the principle that
the foreigner must accept the institutions of the state as
he finds them. The generally accepted view is that the
state must be given an opportunity to do justice in its own
regular way a11d without. unwarranted interference with
its sovereignty by other states. As has boon aptly observed,
. "It is a sound principle that where there is a judicial rem-
1
U.S. (Laura B. Janes) v. Mexioo, Opinions of the C.OJ.Diliissii>ner,s,.
1927.
8
Schwarzenberger, 166.
Jl,
·1 198 lN'rf.~N A'flONAL LAV'
I
I
cdy, it must be sought; and only if it is sought in vain does
diplomatic interposition become proper.'r.1
This r equirement may be dispensed with, however, if
there are no remedies to exhaust, as where the laws are
intrinsically defective or there is laxity or arbitrariness in
their enforcement or where the courts are corrupt or
where there is no adequate machinery for the administra -
tion of justice. There would also be no remedy available
from the so-called "acts of state" which are not subject to
judicial r eview.
Resort to Diplomatic Protection
If t he injured foreigner has exhausted all local reme-
dies but without success, he may then ava il himself of the
assistance of bis state-but only if he has a state. Other-
wise, he will have no party to represent him, and he by
himself, being a mere individual, cannot institute his
claim in his own name. In theory, as previously stated,
any injury to an alien is a violation not of his own personal
right but of the right of his state to have its nationals pro-
tected whenever they are in a foreign country. It follows
that where the injured alien is stateless, ms case will be
one of damnum absque injuria and cannot be the subject
of diplomatic protection.
So imrortant is the ti e of nat,.ona lity, in fact, that it is
req•1ir.ed to exist from the time of the injury until the time
1
the international claim is finally settled. ~ Once this tie is
broken, the claim itself is deemed automatically abated. If,
therefore, th e injured national dies while the claim is un-
der consideration and it should happen that his heirs are
not nationals of the claimant state, the claim will lapse.
~
9 Harvard::Research Draft on the Responsibility of States, 23
~.•
A.J.1.L., Sp . $upp. r~3.
•
10
Scb,vaJ::tiuiberger,
- ~ .. 169.
, •
~'
• ••
T 1,~~ ·1·u 1>N I OJ. ALIE NS Hll:l
This requirement may yet yield to the growing view
that the individual as such sh ould be allowed to institute
an international claim against a foreign state for violation
of his own personal rights. As it is now, it is already sub-
ject to the exception that the United Nations may file a
diplomatic claim on behalf of its officials, as affirmed in
the case of Count Falke Bernadotte,1' who was assassi-
nated while mediating the Palestine crisis. It is notewor-
thy also that under the European Convention on Human
Rights, the European Conunission on Human Rights and
also contracting states other than the state of the injured
individual may bring alleged infractions of the convention
before the European Court of Human Rights.
Enforcement of Claim
An international claim for damages may be resolved
through negotiation or, if this fails, any of the other meth-
ods of set tling disputes, like good offices, arbitration, and
judicial settlement. Th ere have been cases also where
hostile and forcible measures have been employed and
when war itself has been resorted to as a means of com-
pelling compliance with the demands of the injured state.
In the event that the responsibility of the state is es-
tablished or acknowledged, the duty to make reparation
wil I arise. Such reparation may take the form of restitution
or, where this is not possible, satisfaction or co1npP.nSa·
tion, 13 or all three of these together. Thus, the settlement
may consist of the restora tion or replacement of the object
of the offense, a formal apology by the delinquent state
and payment of damages as well.
" 1949 I.C,J. Rep. 147, 43 Am. J. lnt1.' L-589 ( l949).
12
Schwarzenberger, 1:_69. :{ 1
! .llc·£ :a
I!
JNI'ERNAT101'1 AT. J. .AW
'J.00
Avoidance of State H.esponsibiJ i ty
The doctrine of state res ponsibility is applied more
frequently to to:rtious rather than contractual liability
because of the unwillingness of roost states to act as "col-
lection agencies" for their nationals entering into private
agreements with or in foreign countries. Nevertheless, to
avoid the intervention of the alien's state in contracts of
this nature, the local state sometimes incorporates therein
what is known as the Calvo clause. This is a stipulation by
which the alien waives or restricts his right to appeal to
his own state in connection with any claim arising from
the contract and agrees to lirmt himself to the remedies
a:v::iilable under the laws of the local state.
A typical Calvo clause follows:
The contractor and all persons who, as employees or in
any other capacity, may be engaged in the execution of the
work under this contract either directly or indirectly, shall be
considered as Mexicans in all matters within the Republic of
Mexico, concerning the execution of such work and the fulfill-
ment of this contract. They shall not claim, nor shall they have,
with regard to the interests and the business connected with
this contract, any other right or means to enforce the same
than those granted by the laws of the Republic of Mexico, nor
shall they enjoy any other rights than those esta blished in fa-
vor of Mexicans. They are consequently depiived of any rights
as aliens, and under no conditions sbJ11l t.he intervention of for-
e ign tliplnm.at.ir. ~ents be p<?rrnit.tP.ti, in anr matter r~htPn t.o
this contract. ·
Insofar as it. requires the alien to exhaust the reme-
dies available in the. local st::itA, the Calvo clause may he
enforced as a lawful condition of the contract. However, it
may not be interpreted to deprive the alien's state of the
right to protect or vindicate his interests in case they are
injured in another state as such waiver can legally be
w 13
·m ~de:not by him but by his own state. Thus, as held
T~·· .i'PMF,NT OF ALIENS 201
United States (North American Dredging Co.Ju. Mexico: 13
Under the rules of international law, may an alien lawfully
make such a promise (as is ~mb-Oclied in the Calvo clause)? The
Commission holds that he may,
but at the same time holds that he
C8JU10t deprive the. government of his nation of its undoubted right
of applying international remedies to violations of international law
committed to his damage. Such government frequently has a larger
interest in maintaining the principles of international law than in
reoovering damage for one of its citizens in a narticular case, and
manifestly such citizen cannot by contract tie in this resJ)2ct tl,o
hands of his government.
Rxclusion of Aliens
The state may also avoid liability to aliens by refusing
their admission, but this is not regarded as sound policy
since it would provoke retaliation in kind and ultimately
isolate its nationals from the rest of the international com-
munity. Conversely, it would not be advisable either if the
entry of aliens were allowed indiscriminately because they
might pose a danger to the welfare and especially the secu-
rity of the admitting com1try. Instead of banning them alto-
gether, therefore, or permitting their unlimited influx, the
practice of most states now is to regulate the immigration
and stay of aliens and to provide for their deportation
whenever warranted. Arrangements may also be made, in
proper cases, for the extradition of alien fugitives.
n~portation is defined as "the removal of an alien out
of the country, simply because his P"'~sen~e is deemed
inconsistent with the public welfare, and without any
punishment being imposed or contemplated, either under
the laws of the country out of which he is sent, or under
those of the country .t o whlch he is taken."1•a It differs from
"exclusion" which is the denial "of entry to an alien.
'I- ..
issiw 19.•
( '!. ~ ·1
3
' •
.
General Claims Comm
Black, 526.
~
.
- ~ .f
:!· , ·
.
-t .
·~{ . . .. .. j:
26.
·, '
..·
~ ·.
na
~,~
OOER.'lATlONAL LAW
202
In Tfarvey 1J. Santiagn ,1ai, the Supreme l;nnrt nh-
i::.erved:
Every sovereign power has the mherent power to exclude
aliens from its t.erritory upon such grounds as it may deem
proper for its self-preservation or public interest (Lao Tan Bun
v. Fabre, 81 Phil. 682 f1948]). The power to deport aliens is an
a ct of State, an act done by or under the authority of the sover-
eign power (In re McCulloch Dick, 38 Phil. 41 [1918)). It is a
police measure against undesirable aliens whose continued
presence in the country is found to be injurious to the public
good and the domestic tranquility of the people (Forbes v.
Chuoco Tiaco, et a l., 16 Phil. 534 (19101).
Extradition
Extradition is the surrender of a person by one state t.o
another state where he is wanted for prosecution or, if al-
ready convicted, for punishment.
It differs from deportation in that it is effected at the
request of the state of origin whereas deportation is the
unilateral act of the local state; it is based on offenses gen-
erally committed in the state of origin whereas deportation
is based on causes arising in the local state; and it calls for
the return of the fugitive to the state of origin whereas an
undesirable alien may be deported to a stat:e other than his
own or the state of origin.
Basis of Extradition
The extradition of a person is required only if there is
a treaty between the state of refuge and the state of origin.
In the absence of such a treaty, the local stat:e has every
right to grant asylum t.o the fugitive and t.o refose to de-
liver him back to the latter state €ven if he iR its na.t.ional.
If, notwithstanding this right, the surrender requested is
still effected by the state of asylum, it is not because of a
d emandable duty on its part but in pursuan!Xl
131> 162 SCRA 840. L
. .- -< l·f
,:
TREATMENT OF A.LIENS 203
as a gesture of <.:omity. It is not unusual for states to ren-
der assist.ance to e:3.ch other in the apprehension of crimi-
nals who have fl ed their respedi"P. j11rii;;<liM:iorn,.
Fundamental Principles of Ex.t.radition
The fundamental principles governing extradit.irm are
the following:
(1) Extradition is based on the consent of the state
of asylum as expressed in a treaty or manifested as an act
of goodwill. u
(2) Under the principle of specialty, a fugitive who is
extradited may be tried only for the crime specified in the
request for extradition and included in the list of offenses
in the extradition treaty. 15 If he is charged with any other
offerse committed before his escape, the state of refuge--
and not the accused-has a right to object; nevertheless,
the prosecution will be allowed if the extraditing state
agrees or does not complain.
(3) Any person may be extradited, whether he be a
national of the requesting state, of the state of refuge or of
16
a nother state. The practice of many states now, however,
is not to extradite their own nationals but to punish them
under their own laws in accordance with the nationality
principle of criminal jurisdiction. Noteworthy, though, is
the case of Tourville, a British subject who, after murder-
ing his wife in the Tyrol, escaped to his home in England
but was extradited back t.o Austria where he was con-
111cted and hanged. 1·7
(4) Political and religious offP.nders are generally
not subject t0 ~xtrl'lrlir.inn. Tt has been held that "in 0rrl1>r to
'
4
Fenwick, 331.
0~1··l.}~Y or 1
$
16
U.S. vs. Rausch~r.J 19, U.S. 407.
Oppenheim;La utei:yacbt, 698.
•
.! '
"Ibid ., 700.
! "'··
..._ • .:
i t
,'
 20A. TNTEni'IATIONAI. LAW
constitute a n offense of a political character, there must be
two or more parties in the state, each seeking to impose
18
the government of their own choice on the other." Hence,
an admitted anarchist who fled to England after bombing
a Paris restaurant and a military barracks was held to be
extraditable since he was considered not a political of-
19
fender but an enemy of all governments.
But under the atteritat clause, the murder of the head
of state or any member of his family is not to be regarded
as a political offense for purposes of extradition. Neither,
under the Genocide Convention, is the crime of genocide,
which may consist of any of the following acts, committed
with intent to destroy, in whole or in part, a national, eth
r1ical, racial or religious group as such:
1. Killing members of the group.
2. Causing serious bodily or mental harm to members of
the group.
3. Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in
part.
4. Imposing measures intended to prevent births within
the group.
5. Forcibly transfeITing children of the group to another
group.
It may be added that under the Universal Declara-
tion of Human Right.s, "Everyone has tb.e right to seek and
enjoy in other countnes asylum from persecution." How-
ever, "this right may no.t be invoked in the case of prC1secu-
tions genuinely arising from non-political crimes or from
acts contrary t.o the purposes and principles of the United
Nations."
11
18
In re Meunier, 2 Q.B. 415 ('1894),
'i 19
lbid.
'f'RP.t,Tl\IE \JT OP ALI ENS ?.Ofi
(5) In the absence of special agreement, the offense
must have been committed within the territory or against
the interests of the demanding state. A case in point was
the extradition of one Nillins to Germany by Great Britain
upon a sho,ving that he had sent from England forged bills
of exchange to a Berlin company as payment for goods he
had ordered and subsequently received. Although he was
in England all the time, it was held that he had obtained
the goods under false pretenses in Germany and was,
therefore, subject to its laws.20
(6) The act for which the extradition is sought must
be punishable in both the requesting and requested states
under what is known as the rule of double criminality.
ProcP-i lnrP. of Rrln ulition
If the surrender of a fugitive is sought, a request for
his extradition is presented through diplomatic channels
to the state of refuge. This request will be accompanied by
the necessary papers relative to the identity of the wanted
per son and the crime he is alleged to have committed. or of
which he has already been convicted.
Upon receipt of this request, the state of refuge will
conduct a judicial investigation to ascertain if the crime is
covered by the extradition treaty a nd if there is a prima
fade case against the fugitive according to its own laws. If
there is, a warrant of surrender v.1111 be drawn and the
fugitive wm
DP. r:1el5v~n~rl to the state of ori.gin.21
There have been instances when nationals of the
state seeking the fugitive have abducted him in the state
of refuge, as in the case of Adolf Eichmann, who was kid-
naped in Argentina by Israeli agents and taken to Israel, '
'Y~~,.r~ pewas subsequently executed for the murder of six.
10
Oppenheim-Lauterpacht, 700.
21
Fenwick, 331.
! .i'
- ,.. .
206 INTERNATIONAL L i> W
million Jews in World War II. But such acts are not al-
lowed under international law as they constitute a viola-
tion of the territorial integrity of the state of refuge.
It would be different, however, if the abduction or a r-
rest of the wanted individual had been effected by or wit h
the help of the nationals of the state of refuge itself, as in
the famous Savarkar Ca.r;e, 22 where a prisoner en route to
India escaped in a French port but was apprehended by a
local policeman and delivered back to the British authori-
ties. When France later demanded. the prisoner's ret urn on
the ground tha t a formal request for h is extradition should
have been made, it was held th at Great Britain was under
no obligation to comply.
In Secretary of Justice u. Lantion, the Supreme Court
originally sustained the demand of Mark J imenez to be
informed of the charges against him in the U.S. request for
2
his extradition. ~ On motion for reconsideration, however,
the decision was reversed, also by an 8-6 vote, on the
ground that snch charges were still b~i.ng P,yalu::rted and
no comolaint for <?:vt.rnnit.i,m had as vet been filed in
C0tl!'~ 24 . • tation of a treaty or the ascertainment of the boundaries of
21
Oppenheim-Laui:erpacht, 703.
" 322 SCRA 160.
2
' 343 SCRA 3 77.
I'!
Chapter 17
SETTLEMENT OF INTERNATIONAL
DISPlTT:R~
\
ACCORDING TO KELSEN, "a dispute exists when one
state claims that ano~her state should behave in a certain
manner and that claim is rejected by the latter."1 An in-
ternational dispute, in other words, is an actual disagree-
ment between states rega rding the conduct to be taken by
one of them for the protection or vindication of the inter-
ests of the other. Where the disagreement has not yet
ripened into a full-blown conflict or the issues have not yet
been sufficiently formulated and defi ned, there is what is
known as a situation. A situation is, therefore, the initial
stage of a dispute.
A dispute is legal if it involves justiciable rights based
on law or fact susceptible of adjudication by a judicial or
arbitral tribunal. An example is a conflict on the interpre-
adjacent states. It is political if it cannot be decided by
legal processes on the basis of the substantive rules of
international law because the differences of the parties
spring from animosities in their mutual attitudes rather
than from an antagonism of legal rights. Such would be
t he case if one state, in the exercise of its sovereign rights,
enacts :immigration laws discriminating against the na-
tionals of another state over the Jatrer's prote~ts. The solu-
tion to such a dispt1te lies not in the councils of the ronrt,<:1
but in the corridors of diplomacy.
' Kelsen, 376.
207
208 l NTEJtN/\TI0N.A' , T.AW
Methods of Settling Disputes
Disputes are required. to be settled, conformably to
one of the basic principles of the United Nations, "by
peaceful means in such manner that international peace
and security, and justice, are not endangered.',2
Unlike municipal law, international law has not yet
been able to provide for an adequate machinery for the
peaceful settlement of disagreements among states by
compulsory processes binding on the contending parties,
such as are available from national administrative and
judicial tribunals. The closest approach in the interna-
tional society to such agencies is the International Court of
Justice, but its jurisdiction is not general or obligatory;
indeed, its competence to act is dependent on the consent
of the parties involved. A similar observation may be made
even of the Security Council, wh ose powers are also mark-
edly limited except where interna tional peace and security
are endangered. In this event, its intervention may be
forcibly imposed by it motu proprw, but even then its ef-
fectiveness may be hampered by disunity among the Big
Five, each of which has the power of veto. As for the Gen-
eral Assembly, it is not only inhibited from discussing any
dispute at the time under consideration by the Security
Council but its rather large and politics-oriented member-
ship gen erally prevents an objective and dispassion ate
solution to an international conflict.
In consequence~states have on many occasions found
it necessary to settle th eir .dispute" by themselves J:Llone
without regRrd to l1igher 13.nthority. Initially at least, their
efforts toward this end are peaceful and sometimes even
friendly, but it is not uncommon for their mutual demands
to exacerbate rather than resolve their disagreements,
thus le.a.ding them to employ less amicable methods to iron
..{
~
SETTLE t,1EN'l' OP ftM'F.RUATIONAL DISl'l.ll'ES
209
out their differences. In the end, where the issues dividing
them ber.omP i-rreconr.i.lable, they may find it necessary to
resort to the nltimate solution in the illogical arbitra.m'?nt
nf WJ'IT
Amicable M~thods
The amica ble methods of settling disputes are nego-
tiation, inquiry, good offices, mediation, conciliation, arbi-
tration, }wi.icial settlerr.ent, and resort to regional and in-
ternational organizations. Except for negotiation, they all
involve the participation of a third party, such as a stat.e or
a prestigious statesman or jurist. These methods may also
be availed of by the parties independently of the United
Nations, or upon its recommendation or direction, or with
its active participation.
Negotia tion, which is generally the first step taken in
the settlement of an international dispute, is the discus-
sion undertaken by the parties themselves of their respec-
tive claims and counterclaims with a view to their just and
orderly adjustment. The conversations may be brief or
protracted, depending on the issues in contention and
perhaps also on considerations of national pride. Where
the talks prosper and agreement is reached, it is usually
formalized in a treaty or, more directly, effected through
the rectification of the injury ca used to the claimant state.
Inquiry is an investigation of the points in question,
on the theory that their elucidation will contribute to the
solution of the differences betwoon the parties. As most
dispures.; are caused by a misunderstanding of certain
factual situations , their clarification by an impartiB] a nd
conscientious body can limit if. not entirely remove the
areas of disagreement. The findings of the party making
the inquiry are not conclusive flpop the disputing states
in the settlement of the 'conflict . ~ ii ;. .
but they nevertheless may exert a $trong moral influence
·~ff '..
 :I
;
i
'
!
210 INTERNATIONAL LAW
Thus, in the famous Dogger Bank Case; Russian ves-
sels fired in a fog on the English fishing fleet off Dogger
Bank during the Russo-Japanese War and caused the
death of two fishermen, injuries to others and considerable
destruction of property. Russia maintained that the firing
was due to the approach of Japanese torpedo boats, and a
commission of inquiry was created to verify this claim. The
finding was that there were no torpedo boats present at
the time of the incident and, as a result, Russia agreed to
pay £65,000 to Great Britain.
Good offices is a method by which a thi_rd party at-
tempts to bring the disputing states together in order to
\ enable them to discuss the issues in contention and arrive
at an agreement. This is usually employed when the par-
ties are no longer on speaking terms, that is, when they
have severed diplomatic relations or have actually com-
:1
r,1
d,
menced hostilities. The Russo.Japanese War, for example,
was terminated through the good offices of President
Theodore Roosevelt of the United States who succeeded in
bringing the parties together to the conference table for
the conclusion of a negotiated peace.
A more active involvement than good offices 1s media-
tion, by means of which th~ third party does not merely
provide the. opportunity for the antagonists to negotiate
but also actively participates in their discussions in order
to reconcile their conflicting claims and appease their
feelings of resentment. 'The suggestions of the mediator
are merely persuasive, however, and may hfl -r~jected
without offense by the parties to the dispute.
The process. of conciliation also calls for the active
participation of a third party in the attempt of the dispu-
tants to settle their conflict, and the recommendations
made by it are lik;;ise not binding. But unlike in media-
•
a Scott, Hague~6©,t.c1Uports 403 (1916).
f '
t I
8E'I'I'LEMI~NT OF lNTER:-<ATIONAL DISPUTF.S ~,1
tion, the services of the conciliator are not offered by the
third party but solicited by the parties in dispute.
Arbitration is the solution of a dispute by an impar·
tial third party, usually a tribunal created by the parties
themselves under a charter known as the compromis,
which will provide for, among others, the composition of
the body and the manner of the selection of its members,
its rules of proceedings and sometimes even the law to be
applied by it, and the issues of fact or law to be resolved.
Unlike in conciliation, the proceedings are essentially
judicial and the award is, by previous agreement, binding
on the parties to the dispute.
This method is similar to judicial settlement not only
in the nature of the proceedings and the binding character
of the decisions but also in the fact that the disputes sub-
mitted for adjudication are legal rather than political.
They differ in the following points:
(1} The judicial tribunal is, ge{lerally speaking, a
pre-existing and permanent body whereas the arbitral
tribunal is an ad hoc body created and filled by the parties
to the dispute themselves.
(2} Jurisdiction in judicial settlement is usually
compulsory whereas submission to arbitration is vofon·
tary.
(3) The law applied by the tribunal in judicial set-
tlement is independent of the will of the parties but may
be limited by them in arbitration proceedings.
The judicial settlement of international disputes is
now entrusted to the International C0urt of Justice, which
super~'3ded the Permanent Court of T:ot.P.m::it.~onal .Justice
under the defunct League of Nations. As previously noted,
the jurisdiction of the Court is not compuls~ry but depend-
ent on the agreement of the part(es~to :sµbmit.to and be
bound by its decisions. Such conseht rµil:tbe-mapifested in
a treaty containing -what is calied 1the'}.;.'\xfui_prpmissary
. - t· a·····~
r.. -. I'"f l (, f ,. "
~ -JS,'j
·. : - ~{,~,.-) tt ~. -
 lNTRRl~ATIO!lAL f ,AV,
212
clause," which empowers the Court to settle disputes
arising from the interpretation or the application of such
treaty, or through the so-called "optional jurisdiction
clause" in Ai:ticle 36 of the Statute. This article provides
t.hat-
(1) The states parties to the present Statute may at any
time declare that they recognize as compulso,y ipso facto and
without special agreement, in relation to any other state accept·
ing the same obligation,' the jurisdictwn of the Court in all legal
disputes concerning:
\
(a) The interpretation of a treaty;
(b) Any question of international law;
(c) The existence of any fact which, if established,
would constitute a breach ofan international obligation;
(d) The nature or extent of the reparation to be
made for the breach ofan international obligation.
(2) The declarations referred to above may be made un·
conditionally or on condition of reciprocity on the part of several
or certain states, or for a certain time.
If any party to a case fails to perform the obligations
incumbent upon it under a judgment rendered by the
Cow-t., the other party may have recourse to the Security
Council which may, if it deems necessary, make recom-
me~dations or decide upon measures to give effect to the
judgment.4 This does not preclude the employment of other
means directly by the other party, such as announcement of
the fact of noncompliance and appeal to world opinion to
persuade the losing litigant to abide by the decision.
Another peaceful method of settling disputes is action
by region.al organizations, which may be resorted to by the
parties on their 'JWil volition or t::ik~n by the borl.y itself J3t
its own instance if allowed by agreement of the members.
Several such organizations now
.... exist in the various re-
; \.)·
• U.N·. Charter, Art. 94.
SEITL!!:MUl'I' 0f' l~rnmtri\TICNAL DISPl'TES 'J.rn
gions of the world but with varying degrees of effectiveness
depending on their respective charters. One of the declared
objectives of the Association of South East Asian Nations
(ASEAN), for example, is "to promote peace and stability
through abiding respect for justice and the rule oflaw in the
relationship among c.ountries of the region anrl ::iclhP.rP.nr.P.
t'=' tl1e prindples of the United Nations Charter."
Hni;;.tilP. MP.t.ho(llo:
Where the pacific methods of settling disputes are
unsuccessful, states sometimes find it expedient to resort
to what are known as the hostile or non-amicable meth-
ods. These methods are not only unfriendly but may even
involve illegal and coercive acts and are usually imposed
upon weak countries by strong powers. Nevertheless, they
are regarded as a mild alternative compared to war, in the
sense that they may avoid the necessity of creating a more
serious stare of hostilities which might not be justified by
the nature of the dispute. It is still doubtful, just the same,
given this practical justification, if some of these methods
can be sustained in light of the principles announced in
the Charter of the U nit.ed Nations.
At any rate, the hostile methods of settling disputes
may be classified into retorswns, reprisals and interven-
tion. The last having been discussed already, attention
will now be given to the first two.
Rewrsion is any action taken in ''retaliation where
the acts complained of do not constitute a legal ground of
offense but are rather in the nat.me of unfriendly acts but
indirectly lmrtfol t0 otb8r sta tP.s."; The ~.ct 0f retalil'\t.inn is
also unfriendly but not illegal and may be in kind or of a
different nature than the act that provoked it.

214 hITERN/\.Ti'")NAL LAu:
Examples of retorsions are severance of diplomatic or
consular relations, suspension of commercial intercourse,
boycott, stoppage of travel to the other state, denunciation
of treaties, imposition of higher tariffs a nd other trade
barriers, currency restrictions, denial of loans and with-
drawal of privileges previously enjoyed, recognition of a
rival government, and adverse propaganda.
Reprisals, on the other hand, "are an act of self-help on
the part of the mjured state, responding after an unsatisfied
de.ma.nd to an act contrary to international law on the part
of the offending state. They have the effect of suspending
momentarily in the relations of the two states the obser-
vance of this or that rule of international law. They are
linrited by the experience of humanity and the rules of good
faith, applicable in the relation of state with state. They
would be illegal if a previous act contrary to international
law had rwt furnished the reason for them. They aim to
impose on the offending state reparation for the offense or
the return to legality in avoidance of new offenses.',6
1
In the Naulilaa Incident Arbitraiion, it appeared
that during World War I a party of German officials and
officers crossed into the neutral Portuguese colony of An-
gola to discuss the purchase of food supplies from the Por-
tuguese. Due to a misunderstanding caused by language
difficulties, a n altercation arose during the discussion as a
result of which three of the Germans were killed and an-
other one was interned by the Portuguese. The German
authorities did not communicate with the Portuguese
government but in alleged reprisal German troops later
attacked and destroyed certain forts and posts in Angola.
When the matter was subsequently submitted to arbitra-
::!.
_ ___.,_
; l i .
6 Naulil·~ ~tr!l~ent Arbitration, Portuguese-German Arbitral
Tribunal, 1928. · ··
1
Ibid~fBish(!p, 747-748.
':}
~ '
.,..
r
!--'i?.t'l'U'HB!'-~r 0 P h :rF.ntlATIOtlAL DIRPUTES
215
tion, it was held that the death of the Germans at Nauli-
laa "was not the consequence of acts contrary to interna-
tional 1aw imputable to either German or Portuguese
authorities, either civit· or military," but was purely fortui -
tous, being the result of misunderstanding and "of a cer-
tain impudence" on the part of the German officials. Add-
ing that "there h as been evide nt disproportion between the
incident of Naulilaa and the six acts of reprisals which
followed it," the tnbunal concluded that the reprisals were
unlawful '1.n view of the lack of sufficient occasion, of pre-
vious demand and of admissible proportion between the
alleged offense and the reprisals taken."
Among the more common forms of reprisals are dis-
play of force , as when the U.S. Mediterranean Fleet pro-
ceeded to and deployed along the coasts of Turkey in 1903
pending compliance with the demand for the return of an
American national kidnaped by a Turkish bandit; occupa-
tion of territory, as when Italy seized the Greek island of
Corfu in 1923 for the murder of certain Italian officers in
Greece; embargo, or the detention by the state seeking
redress of the vessels of the offending state or its nation-
als, whether such vessels are found in the territory of the
former or on the high seas, as illustrated by the action
taken by Holland against Venezuela in 1908; and pacific
blockade, by which the vessels of the offending state are
prevented from entering or leaving its ports by the ships of
the state seelcing redress, as wa.s donA hy the Great Pow-
ers against Greece in 1886 tn djssu:ride it frf"lTP going to war
against Turkey.
The United Nations
In the event that none of the above-discussed meth-
ods succeeds in settling the dispute, or even if they are not
employed, the .United Nations may be asked or may decide
on.its own authority to take a·hand in.its settlement. This
j 41
'-1 . .\
~ . '} ,-(
 SETTLEMENT OF l N'fl,;ltNJ\Tl0NAL DISPlITES ?.17
ltITER.NJ\'I'l'_,NAl. LAW
21B

task is addressed principally to the Security Council but that legal disputes should as a rule be referred to th~ In-
may, when the occasion requires, be taken over by the ternational Court of ,J ustice. 16
General Assembly under conditions to be noted shortly. If these measures also prove unavailing, then the Se-
The Security Council shall have jurisdiction to inter- curity Council may recommend such actual terms of set-
vene in: (a) all disputes affecting international peace and tlement as it may consider appropriate. 11 This last step is
security;!; and (b) all disputes which, although coming un- in the nature of a compulsory settlement of the dispute
der the "domestic jurisdiction clause,t' have been submit- which the parties are under obligation to abide by in the
9
ted to it by the parties for settlement. Such disputes may interest of international peace and security.
l)e brought to it by: Finally, where the terms of settlement are rejected by
0
(1) The Security Council itself, on its own motion. ' any of the parties, the Security Council is empowered to
11 take more drastic steps, to wit-
The General Assembly.
(2)
(3) The Secretary-General.
12 (1) In the first instance, it may adopt such measures
(4) Any Member of the United Nations.'~
not involving the use of armed force, such as complete or
partial interruption of economic relations and of rail, sea
(5) Any party to the dispute, provided that in the
air, postal, telegraphic, radio and other means of commu-
case of non Members of the United Nations, they should
nication, and severance of diplomatic relations. ts This is
accept in advance, for the purposes of the dispute, the
1 known as preventive action.
obligations of pacific settlement under the Charter. •
(2) Should it consider that such measures would be
The Charter of the United Nations provides that the
or have proved inadequate, it may then take such action
Security Council shall, in the first instance, when it deems
by air, sea or land forces as may be necessary to maintain
it necessary, call on the parties to settle the rtispute by any
15 or restore international peace and security. Such action
peaceful means in their own choice.
may indude demonstrations, blockades, and other opera-
In case they a.re unable to adjust their differences by
tions by air, sea, or land forces of members of the United
themselves through the peaceful methods suggested, the Nations.19 This is known as enforcement action.
Security Council may reconunend appropriate measures or
methods of adjustment, taking into consideration: (a) any To enable the United Nations to take urgent military
amicable measures already adopted by the parties; and (b) measures, members shall hold immediately available na-
________ __ ,,
tional air-force contingents for combined international
enforcement action. 'The strength and degree of readiness
5
Ibid., Arts. 24, M. of these contingents and plans for their combined action
1
Ibid.: Art. 2. shall be determined, within. the limits laid down in the
10
Ibid., Art. 39.
•
11
Ibid., Arts. 10, 11. 16
1 lbid., Art. 36.
!Ibi.d., Art. 99.
"[bid., Art. 36.
~ 1' Ibid., Art. 35. ·
,a Ibid., Art. 41.
• ~ ibid. Arts. 35, 37.
1
_j 19
Ibid.,~· 41.
.f:!i ,•..,.
, Hf Ibid., Art. 33.

::l;, t,~:;.:·~ ·"

.~ ;-
~ ... .
 lN'J'EPNA'rTOtuJ, LAw
218
special agreement or agreements r eforred to in Arbcle 34,
by the Security Council with the assistance of the Military
Staff Committee.20
The Military Staff Committee consists of the chiefs of
staff of the permanent members of the Security Council or
their representatives. It is supposed to advise and assist the
Security Council on all questions relating to its military
requirements for the maintenance of international peace
and security, the. employment and conunand of forces
placed at its disposal, the regulation of armaments, and
possible disarmament. It shall also be responsible under th e
Security Council for the strategic direcb on of any armed
21
forces placed at the disposal of the said Council.
Some of the conflicts in which the Security Council
has intervened in the exercise of its peace-keeping func-
tions are those involving Palestine a nd Israel in 1948,
India and Pakistan on the Kashmir case in the same year,
Indonesia and the Netherlands in 1948 and 1949, North
and South Kor ea in 1950, the Congolese Republic an d the
Katangans in 1960, Britain, France and Israel against
Egypt on the Suez Canal in 1956, and the Middle East
war between the J ews and the Arabs.
.,. There is always the possibility that failure of unity
among the Big Five will render the Security Council impo-
tent in the solution of international disputes. As previously
observed , the veto cast by any of the permanent members
will prevent agreement on this matter. Recognizing this,
the General Assembly adopted in 1950 the "Uniting for
Peace Resolution," which provides thet "if the Secwi.ty
Council, beca use of lack of unanirnity of the permanent
... i • members, fails to exercise its primary responsibility for the
;:. ; 1-I-.. ;. maintenance of peace and security in any case o/.here there
)!
; ., ...
}
}
...
i!f:;::·~
~uli;;
... ,~ t _ _ __
.1, t . .'t ~:· .. ~
0
I bid., Art. 45.
21
Ibid., Art. 47.
:~-:\ . .~
~, •:til: .:
i '..
• .' :~ ttlf.;lJ.: ·.
~i;,·rorr.RME~!T '.)f' INTEP.l\lA'TroNAt.. DISr UTES 2HI
appears to be threat to the peace, breach of peace, or act of
aggression, the General Assembly shall cons ider the mat-
ter immediately with a view to making recorrunendations
to the members for collective miasures, including in the
case of breach of the peace or act of aggression, the use of
armed forces when necessary, to maintain or restore in-
ternational peace and security."
If not in session at the time, the General Assembly
.may meet in emergency special session within twenty-four
hours of the request therefor either by any nine members
of the Security Council or by a majority of the members of
the United Nations.
Conformably to this resolution, the General Assembly
on November 4, 1956, provided for the establishment of an
int.ernational "police force" under the United Nations
command to s upervise the area involved in the Suez Canal
crisis, in which two of the permanent members of t},p S\P.-
curity Council were directly involved.
In recommendfog snr.h action. the S':'<'.rP.t.siry-General
had thA following to say:
Functioning as it would on the basis of the terms of the
resolution 'Uniting for Pea ce,' the Force, if establishe<l, wciuld
be limited in its operations to th e extent that consent of the
parties concerned is roquir ed under generally recognized in-
ternational law. While the General Assembly is enabled to es-
tablish the Force with the consent of those parties which con-
tribute units to the Force, it could not request the Force to be
sta tioned or operate on the territory of a given cowitry without
the con sen t of the Government of that country. This does not
exclude the possibility tha t the Security Council could use i:uch
a Forr.e within the wider margin<; oro•:ided •inder Cha pter VII
1
of~J,e, TJnited Nal-intii:; C111u-1.:~r. ~
The invasio~ c;,f Iraq by the combined forces of the
United States, Britain and Australia provoked world-wide
>. ~·
·-.
l • '
~
_ -et~• ~
u
. '
22
U.N. Doc.Ji~.AIJ4.·2, Nov. 6, 1956
'. ;i..
~ ('
I 220 INTRRNATIONAL LAw

protests led by France, Russia and China, all members of

the Big Five. They contended that the attack was done
(;hApter 18

without authorization from the Security Council which WAR

wanted to give the UN ins pection team more time to look
for the weapons of mass destruction that US President
George W. Bush insisted the Iraqi government was con- THERE IS NO UNANIMITY among writers on interna-
cealing. Unable to get UN permission, the United States tional law as to the meaning or concept of war, some say-
nevertheless began bombarding Iraq, invoking an earlier ing it is a specific action while others assert it is merely a
inconclusive resolution of the Security Council adopted specific status. Viewed in the former sense, war may be
after the terrorist attacks in his country on September 11, defined as an armed contention between the public forces
2002. The consensus in legal quarters dismissed such of states or other belligerent communities, implying the
resolution and held that the United States needed another employment of violence among the parties as a means of
resolution categorically calling for armed sanction against enforcing their respective demands upon each other. In
Iraq. the latter sense, war may exist even without the use of
The Iraqi crisis has raised questions about the effec- force, as when one state fonnally refuses to be governed by
tiveness of the Security Council in maintai11ing interna- the laws of peace in its relations with another state even if
tional peace and security and the practical value of the actual hostilities have not taken place between them.
rule requiring t he unanimity of the Big Five in deciding It has already been observed that the employment of
non-procedural questions. The threatened veto by France force by one state against another does not necessarily
of the US proposal for the immediate invasion of Iraq result in war, e.g., in the case of reprisals like a pacific
caused the United States to "go it aJ')ne" and may have blockade. On the other hand, it should be remembered
demonstrated the :impotence of the United Nations in that when several Latin-American countries declared war
enforcing t}u~ purposes Elnrl principlef r1P.fined in its (;h::i.r against Germany during World War II, a state of war was
ter. deemed existing between the parties notwithstanding that
force was never resorted to in their mutual dealings.
Kelsen suggests that "like any fact to which interna-
tional law attaches certain consequences, the fact 'war'
mnst be ascert~ined by the competent authorities. As long
as no objective authority is established, it is for the statP.s
concerned to ascertain the existence of the fact 'war' in the
international sense. "1

I
Kelsen,. 25-27.

221
r
 22?. l l\"I'ERNATIONAL LAW
OutlRwry of War
War was originally accepted as a legitimate means of
compulsion, provided, according to some writers, that it
was a reaction to an international delict, i.e., it was a just
war or bellum justum. Nevertheless, abhorrence of the
widespread suffering it has caused through the ages has
inspired many attempts to suppress it, notably in recent
times the Covenant .of the League of N ations, the Kellogg-
Briand Pa c~ of 1928, otherwise known as the General
Treaty for the Renunciation of War, and the Cha rter of the
United Nations. However, the first two agreements were
not very effective because they expressly provided for cer-
tain exceptions when war could be lawfully waged.
By contrast, the Charter of the United Nations is
categorically committed to t he outlawry of war. Its pream-
ble begins with a declaration that the Organization is
"determined to save succeeding generations from the
scourge of war which twice in our lifetime has brought
untold sorrow to mankind." Toward this end, a ll members
are called upon to abstain from the use of force in the solu-
. tion of international differences and to see to it that even
non-members comply with its declared principles "so far as
may be necessary for the maintenance of international
peace and security." In only two instances is the use of
force a llowed, to wit, in the exercise of the inhe1·ent right of
self-defense under conditions prescribed in Article 51 and
in pursuance of the so-called enforcement action that m~y
be decreed by thP: 8Acu"ri.tv Couri~H ,mdel'.' Art.icle 1~
Laws of War
Despite the formal .rejection of war, it is a fact of in-
ternational life that it has not yet been completely abol-
ished as a m eans 0£,solving disputes among nations. It is,
therefore, necessarY, to know the more important laws of
\VAR
223
war that are supposed to be observed in the conduct of
armed hostilities . Among these are the following:
(1) The Declaration of Paris of 1856, conceming
wa:tfare at sea.
(2) The Hague Convention s of 1899, concerning the
use of expanding bullets and asphyxiating gases.
(3) The Hague Conventions of 1907, concerning the
opening of hostilities; the laws and customs of warfare on
land; conversion of merchant ships into warships; the
laying of automatic submarine contact mines; naval bom-
bardment in times of war; the exercise of the right of cap-
ture in naval warfare; the dischal'ge of projectiles from
balloons; the adaptation to maritime watfare of the rules
of the Geneva Convention of 1864 relative to the treat-
ment of the wounded in land warfare; the rights and du-
ties of neutrals in land warfare; and the rights and duties
of neutrals in naval warfare.
(4) The Geneva Convention of 1925, concerning the
use of asphyxiating, poisonous and other gases and of
bacteriological methods of warfare.
(5) The Geneva Convention of 1929, concerning the
treatment of the sick and wounded and of prisoners of war.
(6) The Declaration of London of 1936, concerning
the use of submarines against merchant vessels.
(7) The Geneva Convention of 1949, concerning the
amelioration of the sick and wounded on land; the amelio-
ration of the sick and wounded and of shipwrecked mem-
bers of the armed forces at sea; the treatment of prisoners
of war; ~.11.d the protection of civilian persons in war. 2
(8) 'J'hA Nncleiir Nonrroljfet:'ation Treaty,
How are these agreements enforced? The commonly
accepted sanctions are: (a) protest lodged by on~ belliger-
ent, usually accompanied or followed by an ~appeal to
2
Kelsen, 65-66.
 224 [NTF.llNATIOt.fAL LAW
world opinion against the unlawful acts of warfare com-
mitted by the other belligerent; (b) reparation for damages
caused by the defeated belligerent; and (c) punishment of
war criminals. Reprisals are often mentioned as a fourth
sanction, but it is doubtful if they can be justified at pres-
ent in~smuch as they are ess~nti~lly unlawful acts taken
by one belligerent. l'lg::linst the also illegal acts 0ft.b':.' 0Hu~r
Commen~Pme nt of War
The Hague Conven\ions of 1907 provide that hostili-
ties "must not commence without a previous and explicit
warning, in the form either of a r easoned declaration of
war or of an ultimatum with · conditional declaration.',;i
War is supposed to commence on the date specified in the
\. declaration or on the date it is communicated to the en~
emy. However, this formality is often not observed, as
evidenced by the number of wars tha t have broken out
without the "previous and explicit warning" required, e.g.,
the surprise attack on Pearl Harbor by the Japanese in
1941. In such cases, the rule is that war is supposed to
commence from the moment of the first act of force com-
mitted by one state with mtent of making war or commit~
ted without such intent but considered by the other state
as constituting war. Thus, war may start with a declara-
tion of war, with the rejection of an ultin).atum, or with the
commission of an act of force regarii.ed' by at least one of
the belligerents as an a.ct of war.
Effects of the Out.break of \Var
The outbreak of war produces the following genernl
effects:
(1) The laws of peace cease to regulate the relations
of the belligerents and are supersed,ed by the laws of war.
s Hague Convi~tion III, 1907, Art. 1.
J'i
"f,,,C
. ,.•-t_i
t .-
WAR 225
Third states are governed by the laws of neutrality in their
dealings with the belligerents.
(2) Diplomatic and consular relations between the
belligerents are terminated and their respective represen
tatives are allowed to return to their own countries.
it ~
(3) Treaties of a political nature, such as treaties of
alliance, are automatically canceled, but those which are
precisely intended to operate during war, such as one
regulating the conduct of hostilities between the parties,
are activated Multipartite treaties dealing with technical
or administrative matters, like postal conventions, are
deemed merely suspended as between the belligerents.
( 4) Individuals are impressed with enemy character:
(a) under the nationality test, if they are nationals of the
other belligerent, wherever they may be; (b) under the
domiciliary test, if they are domiciled aliens in the terri-
tory of the other belligerent, on the assumption that they
contribute to its economic resources; and (c) under the
activities test, if, being foreigners, they nevertheless par-
ticipate in the hostilities in favor of the other belligerent.
Corporations and other juridical persons, on the other
hand, are regarded as enemies if a majority or a substan-
tial portion of their capital stock is in the hands of enemy
nationals or if they have incorporated in the territory or
under the laws of the other belligerent.
(5) Enemy pu.hlic property found in the territory of
the other belligerent at the outbreak of hostilities is, with
certain exceptions, subject to confiscation. Enemy private
property may be sequestered, subject to return, reim-
bursement or other disposition after the war in accordance
with the treaty of peace.
 l NTERf-Jp·imNAT. LAW
?9.1,
Comh~t.:mts and Non-ct.:m,hat.ants
Technically, combatants are those who engage di-
rectly in the hostilities while non-combatants are those
who do not. Unfortunately, this distinction has been
blurred by the methods of modern warfare, owing largely
to the increased destructive power of the new weapons,
like the intercontinental ballistic missiles, and the activi-
ties of many persons who, while not attached to the armed
forces, perform seryices essential to the war eff01-t. In clear
cases, of course, and whenever p_ossible, non-combatants
should not be subjected to attack as they are not supposed
._ to participate in the actual fighting. Only the combatants
may lawfully wage war and are thus subject to direct at-
tack from the enemy.
The following are regarded as combatants:
(1) The members of the armed forces, whether per
taining to the army, the navy or the air force, except those
not actively engaged in combat, such as chaplains and
medical personnel.
(2) The irregular forces, such as the francs tireurs or
the guerrillas, provided, that: (a) they are corrunanded by a
person responsible for his subordinates; (b) they wear a
fixed distinctive sign recognizable at a distance; (c) they
can-y arms openly; and (d) they conduct their operations in
accordance with the laws and customs of war.
(3) The inhabitants of unoccupied territory who, on
approach of the enemy, spontaneously take arms to resist
the invading troops wi.th0ut having bad time to orgari.ize
themselves, provided only th.8.t they can-y :\rms openly and
observe the laws and customs of war. This is often i·eferred
to as a levee en masse.
(4) The officers and crew of merchant vessels who
forcibly resist attack.
Wi\H 227
When captured, combatants are entitled to treatment
as prisoners of war, which includes inter alia the rights to
be accorded the proper respect commensurate with their
rank, to adequate food and clothing, to safe and sanitary
qua1-ters, to medical assistance," to refuse to give military
information or render military service against their own
state, and to communicate with their families. Non-
combatants do not enjoy identical rights when captured
but are nevertheless protected from inhumane treatment
under the Geneva Convention of 1949 relative to the
treatment of civilian persons in time of war.
C:ondu~t of the Hostilities
Three basic principles underlie the rules of warfare:
the principle of military necessity, the principle of human-
ity, and the principle of chivalry.
Under the first p1inciple, the belligerents may, sub-
ject to the other two principles, employ any amount and
kind of force to compel the complete submission of the
enemy with the least possible loss of lives, time and
money. It was this principle that was invoked to justify the
atom bombing of Hiroshima and Nagasaki, the argument
being that more lives would have been lost if this drastic
measure had not been taken and an American invasion of
the Japanese mainland had been attempted. Such other
measures as sieges, blockades, bombardments~ and devas-
tation of property, which may involve direct hardships on
the non-combatants within the ar~a ~.ffected, are und?.r-
taken under this principle.
The second principle prohibit~ t.b':' USP. of any measu1·P.
that is not absolutely necessary for the purposes of the
war, such as the poisoning of wells and weapons, the em·
ployment of dumdum 01· expanding bullets and asphyxi-
ating gases, the desti1.1ction of works of art and property
devoted to r~ij&J.ciu.s or humanitarian purposes, the born-
~ ~t·~lkl1
~~ ?.?.R lNTERNA1'IONAL LAW
barding of undefended places, and attack of hospital ships.
When an enemy vessel is sunk, the other belligerent must
see to the safety of the persons on board. Pillage is prohib-
ited. The wounded and the sick must be humanely treated
without distinction of nationality by the belligerent in
whose power they are. The rule that a combatant who
surrenders may not be killed and the agreements relating
to the treatment of prisoners of war also fall under this
principle.
The principle of chivalry is the basis of such rules as
those that require the belligerents to give proper warning
before launching a bombardment or prohibit the use of
perfidy in the conduct of the .hostilities. Ruses and strata-
gems of war are allowed provided they do not involve the
employment of treacherous methods, such as the illegal
' use of Red Cross emblems to throw the enemy off-guard
prior to an attack. In this connection, false flags are not
allowed in land warlare, but war vessels may sail under a
flag not their own, subject only to the requirement that
they haul it down and hoist their own flag before attacking
the other belligerent. Espionage also is prohibited under
iptemational law notwithstanding that the practice in-
volves deceit.
An individual can only be considered a spy if: acting
clandestinely or under false pretenses, he obtains, Ol' seeks
to obtain, information in the zone of operations of a bellig-
erent, with the intention of communicating it to the hostile
party.4 Scouts, or soldiers in uniform who penetrate the
zone of operations of a hostile army to obtain information,
are not spies and, when captured, should be treated as
prii;:oners ofwar.6 Spi.es are subjed t:o the municipal law of
the other belligerent except that, as provided in the Hague
Conventions of 1907, "a spy· taken in the act cannot be
• Hague Convention No.JV, 1907, Regulation, Art. 29.
b Ibid. ·l,'11· i - i
W AH 229
punished without previous trial.',<; A spj· who succeeds in
rejoining his a1my and is later captured i.ncurs no respon-
sibility for his previous acts of esoiona~e and is entitled to
hP. t.rP.::.t.P.rl Ft~ A pri~onP.r ofw::.T 1
Kinds of Warfare
•..
Warfare may be waged on land or sea or in the air,
separately or simultaneously. The traditional methods of
waging war have been modified considerably by the ad-
vent of modern developments in naval warfare and, par-
ticularly, in aerial warfare, which played a major role in
the last two World Wars.
Most of the rules on ae1;a1 warfare have become ob·
solete and need to be revised to make them confonn to
present realities. For instance, the Hague Conventions of
1899 prohibited "for a term of five years, the launching of
projectiles and explosives from balloons or by other new
methods of a similar nature.,,s
AB for naval warfare, the most serious difficulties he
in the disagreement among states as to whether armed
merchant vessels are subject to direct attack and the gen
eral violation of the rules against the laying of unanchored
mines and the misuse of submarines and torpedoes. The
rules on land warlare have remained substantially unal~
tered and deal generally with the treatment of combatants
on the battlefield and the obligations incumbent on the
troops making an attack, siege or bombardment. One im-
portant rule is that booty, or personal property found in
the battlefield, is su~iect to confiscation hy the belligerent
stRt":' i:-x~':'pt f:'T~ly the personal belonJrings of the individual
6
Ibid., Art. 30.
1
Ibid., Art. 31.
8
Wilson and Tucker, 288.
~~·.:":
230 Ir1I'F.lltl;\TlONJ\L Lr.w
comhatimts ,vhich have no mili.ta:r.y value, such as
eh-:i,1.....
The theatre of war is the place where the hostilities
are actually conducted, as distinguished from the region of
war, which is th e greater area where the belligerents may
lawfully engage each other. This would comprise their own
territories and the open seas, excluding only neutral terri-
tories.
Belligere nt O~cupation
One of the usual incidents of war is the occupation of
hostile territory by a belligerent that exercises a uthority
over it until its forces voluntarily withdraw or are expelled
by the enemy. Territory is deemed occupied when it 1s
actually placed under the authority of the hostile army,
but this occupation is limited only to the area where such
authority has been established and can be effectively exer-
cised. Nevertheless, it is not necessary that every square
foot of the territory in question be actually occupied, as it
doubtless suffices that the occupying army can, wi thin a
reasonable time, send detachment of troops to make its
10
authority felt within the occupied district.
Belligerent occupation does not result in transfer or
suspension of the sovereignty of the legitimate govern
ment although it may at the moment be unable to exercise
it." Hence, the belligP-rent occupant cannot perform such
acts as declaring the in dependence of the occ1.1pied r.erri-
to:ry or requirin !{ it::- -inh~hi.t.ants to renounce t.heir al1~-
giance to the lawful government.
In the administration of occupied territory, the belHg-
erent is r~q?ir?~ to restore and ensure public order and
,: .; ··f ~ i:·i }-
9 .. ,1
- , r:-t :U- !'.
#)'tc.
Geneva Conv~ntion, 1949, Arts. 16-17.
- ;w Hyde, Vol. 2, 364.
· ltLa~u:elt'v. Misa, 44 O.G. 1176.
... '• #:' t, •. .
' '
' .."t
. L "
7.~ ~. ~~ 11,l f :..
.- ..,.. .-..4 :,.-1 ... ·-
\.V,111
231
j1:>l!l1- safety while respecting, unless absolutely prevented, the
laws in force in the country. This is particularly true with
regard to family honor and rights, the lives of persons,
private property, and religious convictions and practice.12
But whenever necessary, the belligerent occupant
may promulgate new laws, non-political as well as politi-
cal, provided they do not contravene the generally ac-
cepted principles of international law. The political laws
are automatically abrogated upon the end of the occupa-
tion but the non-political laws may continue even beyond
the occupation unless they are expressly repealed or modi-
fied by the legitimate government. 13
Thus, after the J apanese occupation of the Philip-
pines, General Douglas Mac.Arthur issued a proclamation
declaring null and void all laws, regulations and processes
of the enemy occupant.
In addition, the occupant is permitted to exact from
the populace contributions over a nd above the regular
taxes for the needs of the army of occupation or for the
administration of the territory. 14 lt may also, for valuable
consideration, make requisitions of things or services (ex-
cluding military) for the needs of the occupying forces.15
No general penalty, pecuniary or otherwise, can be
inflicted on the population on account of the acts of indi-
viduals for which it cannot be regarded as collectively
respons1"ble.16
It is pennitted for the belligerent occupant to intTO-
duce military currency, provided the purpos8 ii; not to
debase the country's economy. Thus, in Haw Pia v. China
12
13
14
Hague Convention No. IV, 1907, Regulations, Arts. 43, 46.
Hilado v. De la Costa, G.R. No. L-150, April 30, 1949.
Hague Convention No. IV, 1907, Reg.;, A.t;ts. 49-51.
11
Ibid., Art. 52. I ~ .
" Ibid., Art. 50. .
 232 l Nll<~RNATlONAL 1,A \,\i
Banking Corporation/ our Supreme Court upheld the
validity of the payments made by the plaintiff in J apanese
military notes to settle a loan extended to her in Philip-
pine currency before the outbreak of the Pacific war.
Private property cannot be confiscated, but those sus-
ceptible of military use may be seized, subject t.o restora-
18
tion or compensation when peace is made. The property
of municipalities and of institutions dedicated to religion,
charity and education, and the arts and sciences, even
when state-ovvned, shall be treated as private property,
19
and their des~ction is expressly forbidden.
On the other hand, the army of occupation can only
\
take possession of cash, funds and realizable securities
which are strictly the property of the state, depots of arms,
means of transport, stores and supplies, and generally
movable property belonging t.o the state which may be
20
used for military operations. All appliances, whether on
·'.I
la nd, at sea, or in the air, adapted for the transmission of
news, or for the transport of persons or things, exclusive of
cases governed by naval law, depots of anns and generally
all kinds of ammunition of war may be seized but must be
21
restored and compensation fixed when peace is made.
Finally, the occupying state shall be regarded only as
administrator a nd usufructua ry of public buildings, real
estate, forests, agricultural estates belonging t.o the hostile
state and situated in the occupied territory.22 This rule was
applied by our Supreme Court in Banaag v. Singson
Encarnacion,23 where a lease for five yi;!ars grante<l by the
Philippine Exec1.1r.ivl:' Commission j r1 H~42 over certain
u 80 Phil. 604.
18
Hague Convention No. IV, 1907, Reg., Arts. 53-56.
19
Ibid.
2()Ibid.
21
Ibid.
22
Ibid., Art. 55.
13
G.R. No. L-493, April 19, 1949.
WAR 233
municipal fisheries was deemed automatically canceled
upon the re-establishment ,:,f t.he C<rrnmonwE>.alth govern
mP.nt..
Postliminium
The right of postliminy, or postliminium, says Vattel,
"is that in which persons or thjngs taken by the enemy are
restored to the former state on coming actually into the
power of the nation to which they belong."24 In its present
broadened concept, the jus postliminium now also imports
the reinstatement of the authority of the displaced gov-
ernment once control of the enemy is lost over the territory
affected. Thus, upon the end of a belligerent occupation ,
the laws of the re-established government are revived and
all acts taken by the belligerent occupant which it could
not legally do under the law of nations, as well as lawful
acts of a political complexion, are invalidated.
To illustrate, if private land belonging to X is confis-
cated by the enemy occupant and sold t.o Y, X can recover
the property after the occupation without having to pay Y
the purchase price. The reason is that Y never acquired
valid title from. the enemy occupant as the confiscation
was illegal. On the other hand, taxes collected by the occu-
pation government cannot again be demanded by the le-
gitimate fOVP,rnment upon its restoration, as it was within
the lawful competence of the enemy to impose and collect
taxes while its occupation of the territory was effective.
26
By the same token, non-political acts performed during
the occupation, like a decree of divor~ or a judgment for
recovery of a debt, remain valid even after the occupatioT1;
but acts of a political character, ~·.1 r:h ~~ A mnvir.tion for a
...
284 fN'l'J,;ICNA(I0):,·..1. LAW
crime against the occupying forces, autom?.hi::ally 10s~
26
t.hP.ir v~lirlit.y •.1pon the end of the oc{'npation.
Non-Hostile Intercourse
Even in time of war, there are certain relations be-
tween the belligerents which are not strictly hostile.
Among these are the following:
Afiag of truce is a white flag carried by an individual
authorized by pne belligerent to enter into communica-
tions with the other. The bearer, or parl.ementaire, is enti-
tled to inviolability as long as he does not take advantage
of his privileged positio11 to commit an act of treache:cy.
However, the other belligerent is not obliged to receive a
27
flag of truce.
Cartels are agreements to regulate intercourse during
war on such matters as postal and telegraphic communi-
cation, the reception of flags of truce, and the exchange of
prisoners. A cartel ship is a vessel sailing under a safe--
conduct for the purpose of carrying exchanged prisoners of
war. 28
A passport is a written permission given by the bel-
ligerent government or its authorized agent to the subjects
of the enemy state to travel generally in belligerent teni-
tory. 29
A safe-conduct is a pass given to an enemy subject or
to an enemy vessel allowing passage between defined
points. This is given either by the belligerent government
or by the commander of the area within whi~h it. i~ P.ffi:>r.-
~-i11P SO
26
Peralta vs. Director of Prisons, 75 Phil. 285.
21
Hague Convention No. IV, 1907, Regulation, Arts. 32, 34;
Fenwick, 578; Wilson and Tucker, 294.
28
Fenwick, 575; Wilson and Tucker, 295.
~ Wilson and Tucker, 295 . • ~
3) Ibid. .
t
WAR 9.~F.
A safeguard is a protection granted by a commanding
officer either to enemy persons or property within his
command. When it is enforced by a detail of men, they
must use extreme measures, if necessary to fulfill their
trust, and are themselves exempt from attack or capture
by the enemy.
A lu:ense to tra,de is a permission given by the compe-
tent authority to individuals to can-yon trade even though
there is a state or war. A general license grants to all the
subjer,ts of th~ enemy stat,e or t() all its own snbjects the
right to trade in specified places or in specified articles. A
special license grants to a certain person the 1ight to trade
in the manner specified in his license.3i
Suspension of Hostilities
A suspension of arms is a temporary cessation of the
hostilities by agreement of the local commanders for such
purposes as the gathering of the wounded and the burial
of the dead. 32
An armistice is the suspension of all hostilities within
a certain area (local) or in the entire region of the war
(general) agreed upon by the belligerent governments,
usually for the purpose of arranging the terms of the
peace. For example, a general armistice preceded the ter-
nunation of World War I with the surrender of Germany
and its allies.
The distinctions between armistice and suspension of
arms fil"e as follows: (a) the purposf' of armistice is political
whilP. that of suspPnsion of ann.s is military; (h) the fonm~r
may be concluded only by the commanders-in-chief of the
beyigerent governments while the latter may be agreed
 ,t~' 6)/ 237
hHEHtii\1'10!'1M Li\.W
236

changed hands during the hostilities, with the exception

upon by the local commanders; (c) the former is usually in
33
writing while the latter may be oral.
A cease-fire is an unconditional stoppage of hostilities
by order of an international body like the U.N. Security
Council for the purpose of employing peaceful 34means of
settling the differences between the belligerents.
A truce is sometimes used interchangeably with ar-
mistice but is now generally regarded as a cease-fire with
85
conditions attached.
A capitulation is the surrender of military forces,
places or districts in accordfince with the rules of military
36
honor.
Termination of War
War m~y be terminated by simple cessation of hostili-
ties, by the conclusion of a negotiated treaty of peace, or by
the defeat of one of the belligerents followed by a dictated
treaty of peace or annexation of the conquered country.
Among the wars that were terminated by simple ces-
sation of hostilities are those between Sweden and Poland
in 1716, between France and Spain in 1720, between
Spain and its American colonies in 1825, and between
France and Mexico in 1862-67-.. Under this method, prop-
erty or territory in the possession of the respective bellig-
erents upon the termination of the war is retained by them
in accordance v,rith the principle of uti possidetis. This is to
be ilistinguished from th~ u$ual stipul~tion for the .<:tatus
quo ante, ,-.hie}, calls for the complete ref:.toration to their
former owners of property or territory that may have
j ..~:
33 Oppenheim-Lauterpaclit , 550.
3 • Salonga and Yap, 451,#p~.
only of prize and booty.
At times, the belligerents may be unable to effect a
decisive victory against each other and may decide finally
to settle their disagreement in what is known as a negoti-
ated treaty of peace. Such was the case with Great Britain
and the United States when they terminated the Wru: of
1812 with the conclusion of the Treaty of Ghent.
Finally, the war may be terminated by the defeat of
one of the belligerents, which surrenders either condition·
ally or unconditionally. In the former case, a treaty of
peace is concluded embodying the conditions specified in
the surrender; in the latter, the vict01ious belligerent usu-
ally issues a unilateral declaration announcing the end of
the war, to be followed with a peace treaty dictated by it
and specifying the rules on the settlement of the obliga-
tions of the vanquished state and the disposition of its
territories. However, it is not possible always to conclude a
peace treaty of this nature because the defeated belliger-
ent may cease to have any legal standing or existence, as
happened when the Southern Confederacy was simply
absorbed by and again became a part of the United States
after the American civil war.
War is supposed to end with the re-establishment of
peace but the precise date is not easily fixed in view of the
different methods of terminating the state of hostilities. In
the interest at least of the neutrals, it is certainly desir-
able that a formal proclamation or treaty of peace indkate
the ex::ict d9t;e of the tennin~.tion of the wru-. Ewm !;O, con·
fusion may still arise from the municipal viewpoint, as·
illustrated by the apparently conflicting decisions ren-
- dered by our Supreme Court in connection with the inter-
pretation of certain private contracts calling for the de-
-~.. .mandability
~
of obligations after the. end of the war._:' l.:,,
. : !r.

ss Fenwick, 579. · ,. ~ ,
St • d r'<T '
Hague Convention N . .1 v, 1907, Reg., Art. 35 .
. ~ i:; ! -~
- 1":" •
£=~ ~

···"!
. .,f
*l~'i~·
i
 238 Th'TERNATIONAL T,AW
Thus, it has been held that the last war ended with
the signing of the treaty of surrender by the Japanese
37
Armed Forces at Tokyo Bay on September 2, 1945, with
the official proclamation of peace terminating the Greater
38
East Asia War on December 31, 1946, with the signing of
the San Francisco Peace Treaty on September 8, 1951;
39
and with the ratification of the Treaty of Peace conduding
40
the Greater East Asia War on April 28, 1952. In these
cases, it mu~t. bP. st.rP.ssed, determination of the date 0f the
end of the war was·'m ade in light of the intent of the par-
ties as manifested in their contracts.
Aftermath of War
One of the inevitable consequences of wai· is the im-
plied judgment, right or wrong, that the vanquished bel-
ligerent is the guilty party in the dispute that caused the
hostilities. The treaty of peace imposed by the victor upon
the defeated state is regarded as a punishment and is
sustamed on that ground although marked by the vice of
duress that normally would invalidate other agreements.
The "sentence" thus rendered, with the active if reluctant
acquiescence of the vanquished state, will impute to it
responsibility for the war and compel. it to acknowledge
the obligation to pay reparations for injuri~s and. losses
suffered by the victorious state.
In addition, nationals of the vanquished state may be
protected and punished as war criminals and for other
violations of international law. In these actions, they may
not escape responsibility on the ground that they were
merely acting on orders of their state. The state itself is
·a7 Arellano v. Domingo, G.R. No. L-8679, July 26, 1957.
a~.~ avarro v. Barredo, G.R. No. 8660, May 21, 1956.
~3°' . .
~ "' M ercado v. Punzalan, G.R. No. L-8366, April 27, 1956.
1-
-~.~,is.rev. Imperial, G.R. No. L-7906, Oct. 22, 1957.
, •
WAR 289
liable for issuing such orders and the individu<'ls for
obeying them provided a moral choice was possible.
Following are the Principles of the Nuremberg Char
t.P.r Ano ,Jm)gT11fmt.:
I. Any person who commits an act which constitutes a crime
under international law is responsible therefor and liable
fo1· punishment.
H. The fact that internal law does not impose a penalty for an
act which constitutes a crime under international law
does not relieve the person who committed the act from
responsibility under intemational law.
III. The fact that a person who committed an act which con-
stitutes a crime under international law acted as Head of
State or responsible Government official does not relieve
him from responsibility under international law.
I\'. The fact that a person acted pursuant to orders of his
Government or of a superior does not relieve him from re-
sponsibility under international law, provided a moral
choice was in fact possible to him.
V. Any person charged with a crime under international law
Las ~he right to a fair trial on the facts and law.
\'I. The crimes hereinafter set out are punishable as crimes
under international law:
a. Crimes against peace;
(i) Pianning, preparation, initiation or waging of a
war of aggression or a war in violation of international
treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy
for the accomplislunent of any of the acts mentioned un-
der (i).
b. War crimes;
ViolRtioPs of the law or customs of war which in-
clude, but are not limited to, mu1der, ill-treatment or d~·
portation to slave-labour or for any other purpose of ci-
vilian population of or in occupied territory, murder or
ill-treatment of prisoner_s of war, of persons on the seas,
killing of hostages, plunder of public or private property,
wanton destruction O'fzciJies~ towns or v:illages, or devas-
•
tation not justified by.~ r y necessity.
• Jt •
240 li'iTERNATIONAl. LAW
WAH
241

c. Crimes agamst humanity;

failure to take such measures when violations result. That this
Murder, extermination, enslavement, deportation was the precise issue to be tried was made clear by the state-
and other inhuman acts done against any civilian popu- ment of the pros()cutic,n at the opening of the trial.
lation, or persecution on political, racial or religious
It is evident that the conduct of military operations by
grounds, when such acts are done or in connection vvith
troops whose excess~s are unrestrained by the orders or efforts
any crime against peace or any war crime.
of their commander would almost certainly result in violations
VIL Complicity in the commission of a crime against peace, a which it i.s the purpose of the law of war to prevent. Its purpose
war crime, or a crime against humanity as set forth in to protect civilian population and prisoners of war from bru-
Principle VI is a crime under international law. tality would largely be defeated if the commander of an invad-
ing army could with impunity neglect to take reasonable
In Yamashita v. Styert the Commanding General of measures for their protection. Hence, the law of wa1· presup-
the Imperial Japanese Forces in the Philippines was con- poses that its violation is to be avoided through. tli.e control of
victed of war atrocities by a military commission and sen- the operations of war by commanders who :::irn t.o !';OmP. P.irt,;,111.
r':'ep-:m~ibl-? for their subordinates.
tenced to death by hanging. He questioned his trial and
COP.viction on the ground that the military co:rnmii:i.sion had
no r uthority tJr jurisdicfrm to try him, but. thP. sentence
was affirmed by the Philippine Supreme Court and later
by the U.S. Supreme Court. The latter court declared inter
alia as follows:
It is not denied that such acts directed against the civil-
ian population of an occupied country and against prisoners of
war are 1·ecognized in international law as violations of the law
of war. Articles 4, 28, 46, and 74, Annex to Fourth Hague Con-
vention, 1907, 36 Stat. 2277, 2296, 2306, 2307. But it is urged
that the charge does not allege that petitioner has either com-
mitted or directed the commission of such acts, and conse-
quently that no violation is charged as against him. But this
overlooks the fact that the gist of the charge is an unlawful
b1·each of duty by petitioner as an army commander to control
the operations of the members of his command by 'permitting
them to commit' the extensive and wid~spread atrcdties speci-
fied. The question then is whetl1er the law flf w~r ;J:TII"'!:'':'e •:m
any army commander a duty to take such appropriate meas-
ures as are within his power to control the troops under his
command for the prevention of the specified acts which are
violations of tlie law of war and which are likely to attend the
occupation of hostile territory by an uncontrolled soldiery, and
whether he may be charged with personal responsibility for his

., 75 Phi}. 563.

~

Chanter 19
NEUTRALITY
A STATE is said to be neutral if it does not take part, di-
rectly or indirectly, in a war between other states. If rec-
ognized by the belligerents, this condition gives rise to
rights a nd obligations between them and the neutral state
in their mutual relations .
The meaning of neutrality, which is a relatively new
development in international law, has undergone radical
transformation during the recent past, particularly the
last two World Wars. For instance, such concepts as im-
perfect neutrality and qualified neutrality, which were
accepted before, have now become obsolete. The general
policy at present is to recognize only perfect or absolute
neutrality, which imports that the third state does not
take sides in any way whatsoever when other states are at
war.
Strict adherence to this view has becom e hardly prac-
ticable, however, if not impossible. Regrettably, the tech-
niques of modern warfare and advances in internation al
commerce h ave inextricably involved third states in the
hostilities, often against their will. Moreover, the compul-
sions of present-day international politics make it difficult
for n ations to mfilntain a strictly impartiat attitude in the
face of i::onflids t.hat, a !though they m~.v not be actually
parties thereto, will unavoidably affect their own future
and security. No less significant are the provisions of the
·U.N. Charter which obligate member-states to participate
in enforcement action in cases of threat to or actual breach
of the peace of the world. While technically not regarded as
~~
242
NEl."J'IH,1. f'I'Y
21a
wAr, this so-calJP.rl police ad;ion ha." drasti~Rlly r<c>vised. the
traditional understanding of neutrality.
Ne utrality and Neutralization
Neutrality must be distinguished from neutraliza-
tion. While the former is dependent solely on the attitude
of the neutral state, which is free to join any of the bellig-
erents any time it sees fit, the latter is the result of a
treaty wherein the duration and the other conditions of
the neutralization are agreed upon by the neutralized
state and other powers. This agreement governs the con-
duct of the signatories whereas neutrality is governed by
the general law of nations. Neutrality, moreover, obtains
only during war while neutralization is intended to oper-
ate in time of peace as well as in time of war. Finally, only
states may become neutral but portions of states, like
islands, rivers and canals, may be neutralized.
L::n.v!.: of Ntmtrality
The mo1·e important rules on neutrality a re found in
the customary law of nations and in such conventions as
the Df'claration of Paris of 1856, the Hague Conventions of
1907, and tbe unrat.ified Declaration 0f London of 1909.
'l'hese rufoe define: taJ the relations of the belligerent
states with the neutral state; and (b) the relations of the
belligerent states with the nationals of the neutral state.
Relat~ons of Belligerent States and Neutral States
Generally speaking, a neutral state has the right and
duty to abstain from taking part in the hostilities and from
giving assistance to_either belligerent; to prevent its terri-
tory and other resources from being used in the conduct of
hostilities by the bE'µligerents, and to acquiesce in certain
II
., f 244
ItITEP,.NA'l'!()NAI. T·"'w
restrictions and limitations that the belligerents may find
necessary to impose, especially in connection with interna-
1 also carried Persons bound for enlistment in the belliger-
tional commerce.
The belligerents, on the other hand, are bound to re-
spect the status of the neutral state, avoiding any act that
wm directly or indirectly involve it in their conflict, and to
submit to any lawful measures it may take to maintain or
protect its neutrality.
These rights and duti~s a pply only between the bel-
ligerents and the neutral state and, as will appear later,
do not extend to th e acts and omissions of the nationals of
the neutral state.
Use of Neutral Territories
War activities by or on behalf of any of the belliger-
ents may not be undertaken in the territory of the neutral
state without infringement of its neutrality. Neutral terri-
tory is inviolable2 and cannot be used by the belligerents
for the movement of their troops,3 the transport of war
supplies/ the erection of wireless stations for exclusively
military purposes,5 the recruiting of soldiers,6 and the un-
dertaking of military operations in general._ All of these
acts shC'uld be resisted by thP. neutral $tate, with anned
force if necessary, and such resistance is not to be re-
garded as a hostile act. 7
Nevertheless, use of neutral territory is not com-
pletely barred to the belligerents. For example, the pas-
'
1
Schwarzenberger, 208.
2 Hague Convention V, 1907, Reg., Art. 1.
3 £'Ibid., Art. 13.
Ibid., Art. 2.
• Ibid.
5
Ibid., Art. 3.
f
t
~ Ibid., Art. 4.
1
Ibid., Art. 10.
N EC!'!'P.AI..''f'\I 245
sage of sick and wounded troops is allowed through a neu-
tral state provided personnel and materials of war are not
8
ent armies may cross the neutral frontiers if they do so
individually or separate ly and not as a body. 9 The neutral
state itself may give refuge to troops from the belligerent
forces but must intern them as far as possible, at a dis-
tance from the theater of war.10 Escaped prisoners of war
need not be detained by the neutral state but must be
assigned a place of residence if they are allowed to re-
main.11
The neutrality of a state is not affected by the mere
passage through its territorial waters of warships or prizes
12
belonging to belligerents. However, they may not enter
neutral ports, harbors and roadsteads except only in cases
of unseaworthiness, lack of fuel or provisions, or stress of
weather. 13 The usual duration of the sojourn is 24 hours
but this may be shortened or extended, depending on the
reason for the entry. 14 Thus, the vessel must leave as soon
as it has been re-provisioned; a nd in this connection, it
must be stressed that it can take only so much fuel or
supplies as it will need until it reaches the nearest of its
own ports. 15 Improvement of the weather is also a cue for
departure, and so too is the completion of the repairs that
made the entry necessary. "While some states do not a1low
reparrs in their territory of damage sustainetl by a war-
ship in battle, the rnlP gP.J1e.ra lly observed is that the re-
_._, _________
• : 8
Ibid., Art. 12.
: .. ~ Ibid., Art. 6.
. ~- ; _.1° Ibid., Art. 11.
~'Hague Convention XIII, 1907, Art. 10.
.. ,.
• ,
.
1
'Hague Convention Xlll, 1907.
Ibid., Art. 12.
.,. .
ilOIJoid,, Art. 19.
,
l...;!
246 h-rrRRhlAT!OHAL LAW NElTI'RALITY 217

pairs should be permitted so long as they are not intended
to increase the fighting force of the vessel.·~
Where vessels from both belligerents are in neutral
waters at the same time, a period of 24 hours must elapse
between the departure of the first vessel and the depar
ture of the second, the order being determined by their
time of arrival. 11 Not more than three vessels from any
belligerent shall be allowed simultaneously in the same
'
neutral port or waters.
18
The· territorial waters of a neutral state must never
be used as asylum for belligerent vessels under pursuit or
attack by the enemy. Any man-of-war entering a neutral
port for this reason should be asked to leave and, if it re-
fuses, should be rendered incapable of puttmg out to sea
for the duration of the war, its officers and crew being
19
interned by the neutral state. If a prize is captured in
neutral waters, or brought thereto without justification, it
is the duty of the neuti·al state to release it and to intern
20
the prize crew of the captor ship.
Passage of military aircraft belonging to the belliger-
ents is not allowed across the airspace of a neutral state.
Where a belligerent aircraft is forced to lane! on nentral
territory, the same should be det!'linecl. and its officers a11r:l
r.rnw intR.rned.
21
Use of Neutral Facilities and Services
Even as the neutral territory is not allowed to make
its territory available for the use of the belligerents save in
the cases mentioned, so too is it prohibited from giving
them any form of direct assistance in connection with the
conduct of the hostilitie&. Thus, the neutral state may not
send military contingents, extend loans, or even sell, fol'
valuable consideration, supplies of war to either or both of
the belligerents.iz
While the neutral state is not obliged to prevent the
export from or transit through its ten-itory of war supplies
purchased from private traders by the belligerents in the
ordinary course of commerce,23 it is required to take rea-
sonable diligence in preventing the delivery of vessels
constructed and armed in its territOl'y for use by any of the
belligerents.24 In the famous Alabama Claims Case, for
example, Great Britain was held liable in damages to the
25
United States for violation of this duty.
Of particular interest is the action taken by the
United States in favor of the Allied Powers prior to its
actual entry in 1941 into World War II. In 1940, it trans-
. ferred fifty "out-of-date" destroyers to Great Britain in
exchange for the use of certain naval bases in B11tish ter
ritory and, the following year, was able to extend more
material aid to the same country by virtue of the "Lend ·
Lease Act," which authorized the President to lend, lease
or otherwise make available American war supplies to any
belligerent when in his opinion such measure was neces-
sary to the security of the United States. Those acts were a
violation of the traditional laws of nf'utrr1lity. Nonetheless,
they were sought to be. justified on the ground that they
wer(, ,,:tal t;0 the fotur':' defl:'11·':-':' of ~.hP. rlr,it.P.cl ~t.::it.f\~ in

16
Ibid., Art. 17.
11
Ibid., Art.. 16.
18
Ibid., Art. Jl5. 2'ZWilson and Tucker, 328.
19
Ibid., ALt. .24~ 13
Hague Convention XIII, 1907, Art. 7.
20 2
Ibid., ~- ~ ; • Ibid., Art. 8.
21 26
Schwarzl.dbih;gert 215. 7 Moore, Sec. 1330.
t . ~-- ...
. I. t
.1 ,,.~,.i
,.ti-
°' t
·~,;:;.~ '
ll\\' I
;I
I LAW
248 IN'I'ER~14'1•[()11.1AI.
" ~\ 11
view of the expected adverse reoercussions upon it of a
possible A~is victory.
Relat ions of Belligerent States with Nationals of
Neutral States
It is common practice for neutral states to enact leg-
islation designed to avoid their involvement in foreign
wars as a result oftbe acts of their nationals.
This is not a duty imposed by international law, how
ever, for neutral states' are free to a1low their nationals to
deal, in their privat.e capacity, with any of the bellige1·ents.
If, for instance, these n ationals enlist in a belligerent army
or engage in commerce with any of the belligerents, the
neutrality of their state is not thereby compromised in the
absence of special rules imposing upon the neutral state
the duty of intervening in the transaction. Except for
these, international law considers the relationship as
strictly between the individual and the belligerent states
and whatever hardships may be suffered by its nationals
as a result thereof must, as a rule, be acquiesced in by the
neutral state.
Visit and Search
Belligerent warships and airc1·aft have the right to
visit and search neutral merchant vessels on the high seas
for t.h e purpose of determining whether they are in any
way connected with the hostilities, e.g., performing unneu-
t.ral service, carrying cont.rabal'ld, or attempting to breach
a blockade. These vessels may be captured as prize if they
are engaged in hostile activities, if they resist visit and
search, or if there is reasonable suspicion that they are
liable to confiscation. The cargo of these vessels may also
be captured under certain conditions, as when they are.
contraband.
..
•'
N EUTRALITY 249
Prize is not confiscated summarily but must be
brought to a prize court for adjudication. A prize court is a
tribunal established by a belligerent under its own laws, in
its territory or the territory of its allies, and applies n.tles
of international law in the absence of special municipal
legislation. Title to the prize vests in the captor upon con-
firmation by the prize court of the validity of the capture,
except when the vessels or goods are public enemy prop-
erty, in which case title vests immediately upon capture.
In the Declaration of Paris of 1856, the following
rules on the treatment of sea-borne goods in time of war
were agreed upon:
(1) Enemy goods w1der a neutral flag are not sub-
ject to capture, except contraband of war.
(2) Neutral goods under an enemy flag are not sub-
ject to capture, except contraband of war.
Contraban.<1
Contraband is the term applied to goods which, al-
though neutral property, may be seized by a belligerent
because they are useful for war and are bound for a hostile
destination. Absolute contraband are necessarily useful for
26
war 'under all circumstances, like rifles and ammunition,
whereas conditional contraband, like food and clothes,
have both civilian and military purposes.m A t.h ird cate-
gory is usually added under what is known as a ''free lis~,"
which includes goods useful for war and bound for the
belligerents but exempted from the law on contraband for
humanitarian reasons. Among these are medicines and
28
medical supplies for the use of the sick and the wounded.
26
21
Declaration of London, Arls:. 22, 24.
Ibid. •
u Ibid., Art. .29.
250 lNfER.NAT[ONAL LAW
Absolute contraband are subject to seizure so long as
29
they are bound for enemy or enemy-held territory, but
conditional contraband may be seized only when it can be
shown that they are destined for the armed forces or the
30
authorities of the belligerent government. But this dis-
tinction has lost much of its practical value, because most
wartime importations are now government-controlled due
to currency restricpons. Moreover, under the doctrine of
ultimate consumption, goods intended for civilian use
which may ultimately find their way to and be consumed
by the belligerent forces are also liable t.o seizure on the
way.
It is noteworthy that the classification between con-
traband and free goods is continuously changing, largely
as a result of advances in mode1n science which has de-
vised new military uses for articles which were before
regarded as innocuous or innocent. On this development,
Schwarzenberger remarks:
.. . with the possible exception of ostrich feathers, prac-
tically everything is , useful for purposes of war and is, there-
fore, conditional contraband. Raw cotton, treated in the Decla-
ration of London as non-contraband and subsequently one of
the most important ingredients in .the manufacture of explo-
sives, illustrates this proposition. Even plumstones, left nver
i:if:ter rnc> "!r.ing jR.m, s~ ui-ed in th<> rpak:ing of j1;>t e-ngi11el'l.~·
32
Contraband are subject to condemnation. If they are
shipped together with innocent goods belonging to the
same owner, the latter may also be confiscated under the
doctrine of infection.33 As for the disposition of the vessel
29
lbid., Art. 30.
30
Declaration of London, Art. 33.
31
P. 221.
32
Hague Convention XIII, 1907, Art. 3!:l,
lJ Declaration of London, Art. 42.
NF.HH1AI.TTY 2!'>1
carrying the contraband, some states consider it confisca-
ble if the contraband are more than one-half of the total
cargo by weight, value, freight or vo1ume. 34
Contraband are liable to capture from the time they
leave the port in which they are loaded and until they
reach their final hostile destination. In vjew of this, mer-
chant vessels have resorted to the pretense of stopping at
an intermediate neutral port, where the goods are un-
loaded so as to give the appearance that they were actu-
ally destined for this port, although they are subsequently
loaded again, either on the same vessel or on another ve-
hicle, for final shipment to their real belligerent destina-
tion. The vessel is thus able to acquire immunity during
its voyage from the port of origin to the intermediate neu-
tral port and becomes liable to capture only from the time
of its departure from the latter port and until its arrival at
the belligerent port.
To counteract this subterfuge, belligerents have ap-
plied the doctrine of ultimate destination, under which the
liability of contraband to capture is determined not by
their ostensible but by their real destination. Even if the
vessel intends to st.op at an intermediate neutral port, it
will still be considered as in one continuous voyage pro-
vided it can be shown that its cargo will ultimately be
dehvered to a hostile destir•a.tion. Thu~. in the case of the
Springbok, where the cargo of a British vessel en route to a
neutral port was held liable to condemnation on the
ground that its real destination was a blockaded port, the
court said:
We cannot doubt that the cargo was originally shipped
with intent to violate the blockade; that the owners of the
cargo inte!).ded that it should be tra nshipped at Na ssau to a
smaller v~ssel more likely to succeed in reaching safely a
 INTERNATIONAL LAW
252
blockaded port than the Springbok: that t he voyage from Lon-
don to the blockaded port was, as to cargo, both in law a nd in
the intent of the parties, one voyage; and that th.fl liability to
condemnation, if captured during any part ,:,f H,A voya1te, at-
tached t o tho ""~rgo from th<> t.i me of sailing ."
This doctrine is called the doctrine of continuous voy-
age when the goods are reloaded at the intermediate port
on the same vessel and. the doctrine of continuous trans-
port when they .are reloaded on another vessel or other
form of transportation.
Blockade
Blockade is a hostile operation by means of which the
vessels and aircraft of one belligerent prevent all other
vessels, including those of neutral states, from entering or
leaving the ports or coasts of the other belligerent, the
1t::
purpose being to shut off the place from international
commerce and communication with other states. It differs
from a pacific blockade, in that the latter applies only to
the vessels of the blockaded state and does not affect the
vessels of other states.
, might :cl.void . the delars incident. to visit and search in
\} To be valid, a blockade must be: (a) binding, i.e., duly
communicated to the neutral states; (b) effective, meaning
that it is maintained by adequate force so as t o m ake in-
36
gress to or egress from the port dangerous; (c) established
by the proper authorities of the belligerent government,
generaJly the head of state; 37 (d) limited only to the terri-
tory of the enemy and not extended to neutral place~ or
internationa l rivers; a nd (e) impartially applied to all
states alike.38 · tral state in aid of a ny of the belligerents. According to the
35
5 Wall, 1 (1867).
:so Higgins, The Hague Pea ce.Confere,nce, p. 1.
s, Declaration of London, Arts.1. '2, 5'; 8 . ·
~" Ibid., Art. 14. . ,.
NEtmlAl.. tTY ?.fi:~
The liability of a neutral vessel to capture for breach
of blockade is contingent on its knowledge, actual or pre-
sumptive, of the blockade39 and continues as long as it is
pursued by the ships of the blockading force after it has
left or tried to enter the blockaded port. If the pursuit is
abandoned or the blockade is lifted, capture of the ship can
no longer be effected. 40
A vessel foun d gui lty of breach of blockade is liable to
condemnation, and so is the cargo unless it is proved that
at the time it was shipped the owner neither knew nor
could have known of the intention to violate the blockade.41
Practice durin g the last two World Wars radically re-
vised the operational concept of blockade and has reduced
the traditional rules to relatively minor importance today.
Instead of confining themselves to the ports and coasts of
the enemy, the belligerents established the so-called "long
distance blockades" over t heir respective "war zones" and
"defense areas" which they heavily laid with mines and
within which neutral shipping was made subject to their
permission. Great Britain, for example, developed the
system of "navicerts," by means of which neutral shippers
British control ports by applying for a clearance regardin~
th'3 chal'.'::i.rJ.p,r of their ">liiptn.Bnts and thP.ir de!'5tination.42
Unneutral Servic':'
Unneutral service consists of acts, of a more hostile
character than carriage of contraband or breach of block
ade, which are undertaken by merchant vessels of a neu-
- a~ Ibid, Art. 20.
<QIbid., Art. 21.
41
l.~: Ibid.
~enwick, 641.
; t_t i.. ;j:,,,.
• f .f ...: 1·
 r
I

251 Ti,'TERN!\Tl0!141 . L AW
N r:1 n·RAL1TY
2155

Declaration of London, and as generally accepted, a neu-

tral vessel is liable to condemnation for unneutral service:
(a) if it is making a voyage special with a view to the
transport of individual passengers who are embodied in
the armed forces of the enemy or with a view to the
transmission of information in the interest of the enemy;
or (b) if with the knowledge of the owner, or the one who
charters the entire vessel, or of the master, it is trans-
porting a rniHtary detachment of the enemy or one or more
persons who, during the voyage, lend direct assistance to
the operations of the enemy. The cargo, if belongin g to the
43
owner of the vessels, is likewise confiscable.
A neutral vessel is also liable to condemnation and to
be treated as a merchant vessel of the enemy: (a) ifit takes
a direct part in the hostilities; (b) if it is under the orders
or control of an agent placed on board by the enemy gov-
ernment; (c) if it is chartered entirely by the enemy gov-
ernment; or (d) if it is at the time a nd exclusively either
devoted to the transport of enemy troops or the transmis-
sion of information in the interest of the enemy. The goods
belonging to the owner of the vessel are likewise liable to
44
i:ondemnation.
diction of the belligerent; (b) that there is urgent necessity
for the taking; and (c) that just compensation is paid to the
owner.
While some autho?ities are of the opinion that the
same purpose can be achieved through the exercise of the
right of eminent domain, it is claimed on the other hand
that expropriation cannot be exercised over property that
is only temporarily, and usually over the owner's objection,
under the control of the belligerent.'6 Moreover, the expro-
priated property is never taken for t.b':' pnrpn.c::P. of de
stroying it.
'fennination of Neutrality
Neutrality is terminated: (a) when the neutral stat.e
itselfjoins the war; or (b) upon the conclusion of peace. In
the first case~ the hitherto neutral state will be governed
by the laws of war in its relations with the other belliger-
ents and by the laws of neutrality in its relations with all
other states; and in the second, all states will RgRin he
governed by the laws 0f pf:':;:irP.

Angary
I
I
II
111:
By the right of angary, a belligerent may, upon pay-
ment of just compensation, seize, use or destroy, in case of
urgen t necessity for purposes of offenses or defense, neu-
tral property found fa its territory, in enemy territory, or
on the high seas.45 As wi.11 be noted, the exercise of the
right js conditioned upon three requisit~, to wit: (a) that
the property is in the territory under the control or juris-

48
Declaration of London, Art. 45.
-« [bid., Art. 46.
' ';Oppenheim-Lnuterpacht, Vol. 2, 28.
•• Schwarz..enberger, 216.