States and Governments: Principle

STATES AND GOVERNMENTS A minority or national group of a nation does not have
the right to withdraw from the nation, absent

exceptional circumstances.
Aaland Islands Case If minorities had an absolute right in ordinary

circumstances to break away from the nation to which
Principle: the minorities belonged, there would be no stability or
A minority group in the population of a de jure country continuity within the international community.
does not have the absolute right to separate itself from Such a separation could only be an option in rare
that country to be incorporated into another country, or situations, such as when the country could no longer
to declare its independence. effectively exercise control or provide necessary
guarantees to the members of the group.
Facts:
The Aaland Islands (plaintiff), an archipelago located The asserted analogy to Finland’s declaration of
between Finland (defendant) and Sweden, asserted a independence from Russia is not appropriate.
claim of self-determination and independence from Finland, unlike the Aaland Islands, has been an
Finland in order to incorporate with Sweden so as to independent nation since long before World War I, when
protect the Aalanders’ Swedish culture and language. Finland gained its independence. The Aaland Islands
make up only a small fraction of Finland’s territory and
In the Report of the International Committee of Jurists population and therefore may not be treated the same
Entrusted by the Council of the League of Nations with as an entire nation.
the Task of Giving an Advisory Opinion upon the Legal
Aspects of the Aaland Islands Question, the International Here, the Aalanders are most concerned with the
Committee of Jurists of the League of Nations protection of their Swedish culture and language. If
determined that the question of the Aaland Islands’ allowing separation from Finland were the only way to
assertion of self-determination and independence claims protect the Aalanders’ language and culture, then such
was not solely within the jurisdiction of Finland. separation might be a viable option. However, this is not
As a result, the League of Nations (the League) then presently the case.
appointed the Commission of Rapporteurs, consisting of
representatives of member nations, to recommend a Separation and incorporation with Sweden are
solution to the dispute. unnecessary, because Finland has already said that it
will grant the Aalanders adequate protections. If it later
The Aaland Islands and Sweden argued that, because turns out that Finland has not followed through on its
Finland was able to declare independence from Russia, promises, then separation may
the Aaland Islands should be able to similarly declare be considered.
independence from Finland.
Finland stated that separation was unnecessary because Why is it important to know if a particular group
it was willing to grant the Aalanders guarantees of of people in a particular territory constitute a
protection for their language and culture and to abide by state?
any agreements with the Aaland Islands. In addition, a
Finnish statute existed that already gave the Aaland You know that non-state actors can participate in
Islands autonomy in regards to the administration of
international relations and their acts have legal effects.
schools and language.
But the fact remains that among the actors in the
Issue: international sphere, we recognize that states do play
(1) Does a minority group in the population of a de jure the most important role in international sphere because
country have the absolute right to separate itself from basically states are the bearer of rights. And it’s also
that country to be incorporated into another country, or important in some instances because some issues are
to declare its independence? resolved on the basis if one is a state or not. That’s why
in the Aaland Islands case, Sweden before the 1st world
Ruling:
(1) No. war was a very big state. Originally Norway was in the
A minority group in the population of a de jure country north western part and Finland was in the eastern part.
does not have the absolute right to separate itself from Of course came the Swedish-Russian war. So Sweden
that country to be incorporated into another country, or immediately gave up Finland together with the Aaland
to declare its independence. Islands. So Russia occupied Finland, there was no
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |1
Finland as a state yet because it was still part of with lesser civilization. Under traditional international
Sweden. Then eventually the people in Aaland Islands law, this is called uncivilized society. So from being
who happen to be of Swedish origins, in culture and uncivilized, they community achieved a certain level of
language, wanted to separate from Finland. At that time civilization. Until it learned how to governed itself,
Finland was governed by the military forces of Russia. learned to assert its sovereignty, resisted occupation by
Were in fact fighting against other forces. The other states and eventually can establish all other
inhabitants of Aaland Islands wanted to be reunited with elements of statehood. Of course people are already
Sweden and Finland resisted the plan. This was the birth there and territory. The only question to answer is the
of the right of self-determination. The people of Aaland form of government established and capacity to enter
Islands questioned the authority of Finland to resist the into relations with foreign states. That’s creating a state
plan because if Finland was to successfully resist the out of a non-self governing territory.  this is the
secession or separation of the Aaland Islands, Finland traditional emergence of states. Usually out of Tera
should be able to establish that it was already a state at nullius places/territories. Meaning territories that have
that time. Because what Finland was actually invoking never been under any sovereignty or power.
was the right to territorial integrity.
In modern international law, emergence of states
If you read the 1933 Montevideo Convention on the happens as a result of several situations involving self-
Rights and Duties of States, this is the answer to the governing territories.
question. We want to know whether a particular group
of people in a given territory that constitutes a state, we If you already have a state and it’s divided into several
want to know if they will be afforded such rights granted other states as a result of a break-up of larger
to states in international law. And there are so many confederated states or unions. USSR for example.
rights that are afforded to states and not by non-states. Yuguslovia produced 7-8 states. Or due to the
One of this is the right to territorial integrity. dissolution of larger states, there may be a union.
Scholars have accepted and agreed that Article 1 of the
But the Swedish and Finland decided to submit the issue 1933 Montevideo Convention best reflects the elements
to an international committee of jurists which made an of states.
opinion on the status of Finland. Because the concern
was, how could Finland be considered a state when at It’s important to distinguish a state from government. Of
that time, the performance and functions of government course government is just an element or part of a state.
was actually on the basis of how the military forces of The state is the juridical concept of not only of territory,
Russia ran the government of Finland. So that’s the most the people but also the abstract government as an
important reason why we need to understand statehood. agency and the capacity to enter into foreign relations or
independence. And it is important to note also that in
Who shall be considered as possessing the rights international law that it is the state that possesses the
of states? right, not the government.
There are many rights such as the right to self-defense. DOCTRINE OF STATE CONTINUITY
A community not yet attaining statehood, the most
given to is individual self-defense or self-preservation Regardless of the changes in the state, whether it be
but there’s no such thing as the right to the use of force changes of the people, changes in the territory or
under the framework of self-defense. The right to government which is more frequent, regardless of the
establish diplomatic missions in other states. The changes in the internal aspect of a state, the state as an
inherent right to enter into treaties. The principle of entity continues to exist. Why is this important?
legation. And many other rights.
It is important in many aspects. For example if whether
The other concern here is what instances do we find the a treaty remains to be binding on a particular state.
importance of analyzing if the elements are present or Later on we’ll talk about the 2 kinds of succession: state
not. States emerged in different ways. There are those or government. We need to know whether what’s
which emerge as a non-self governing territory. Those occurring is state succession or government succession.
colonies before that started as before as communities Of course there are several legal consequences if there

is a change in government or the state. That’s the TERRITORY
principle of state continuity.
Unlike in the creation of a political subdivision, where in
What establishes the government of a particular most jurisdictions, there is really a requirement of
state? definite territory because of the problem of jurisdiction.
In most cases, making a territory definite would require
The constitution. The moment you replace one a measurement, with metes and bounds as you learned
constitution with another then you are replacing the in your pubcorp. But that notion is not required in
government. When we had the 1987 constitution, we international law. In the North Sea Continental Shelf
replaced the government of Marcos with that of Aquino. case, the court only requires sufficient consistency. The
That’s a change of government. possible consequence of this rule is therefore that when
a state is involved in a dispute over frontiers, it would
An example of state succession is when we change
not diminish its meaning of state. This is how Israel was
sovereignty. This is discussed in the case of Macariola v.
able to justify it being a state despite Palestine having a
Asuncion.
claim in area of Israel but contiguity is not a
An example of change in sovereignty is from sovereign requirement. So when a state is involved in territorial
of Spain to US to US to Philippine Republic. dispute, that fact should not diminish the statehood of a
particular community. What is required is only
Republic of the Philippines – name of government sufficient consistency, meaning the government of
that state is consistently claiming that particular
Philippines- name of state
territory. And not only that, along with a defined
territory, that territory had been subject of that states
ELEMENTS OF A STATE
territorial sovereignty.
Elements of “State”
It’s not enough to claim that territory but you must also
1. Permanent population established that you exercised territorial sovereignty
2. Defined territory over that territory. And this was shown to us in the
3. Government Island of Palmas Case. And Max Huber,a judge of the
4. Capacity to enter into relations with other states PCIJ was appointed by both Netherlands and the US as
arbitrator. The Islands of Palmas are located in the
Southern part of the Philippines. Bordering Philippines
POPULATION and Indonesia.
Island of Palmas Case (Netherlands v. US,

There is no requirement as to number of people. The
Arbitrator Max Huber of PCIJ, 1928)
only inherent requirement is that population be
permanent, self-sufficient. (Leichtenstein with 34,0000 in Principle:
1990 and Nauru with 14,000 in 1999. Vatican City with The right of territorial sovereignty is not complete
500 citizens and about 800 residents. Other mini states through mere “discovery” of land. Once a State views a
in Micronesia, Tonga, San Marino, Palau and Monaco) new territory, it only obtains an “inchoate” title to the
land. The State does not perfect its title to the land
Since the requirement is a permanent population, without effectively occupying the land within a
how does a state maintain its population? reasonable time following the initial discovery.
First way natural(taas kaayo ang jokes ni sir dire). Facts:

The United States and the Netherlands submitted to the
Second way is via migration like in the Vatican.
Permanent Court of Arbitration the question of which
State owned the Island of Palmas (Palmas).
There’s also no requirement on nationality, that it should
consist only of one ethnicity. There’s no requirement
Palmas is located within the boundary of the Philippines
that it should have both gender. (territory ceded to the United States from Spain as of
the 1898 Treaty of Paris).

Spain first discovered Palmas in the early seventeenth only inchoate, whereas the Netherlands peacefully and
century and thus claimed title to it. continuously possessed the area for centuries. This fact
However, Palmas was also considered by the is sufficient to vest territorial sovereignty over Palmas in
Netherlands to be a part of its territory since it began the Netherlands, rather than the United States.
peacefully and continuously possessing the area in 1677
or before.
DBL: In the Treaty of Paris, the Philippine Islands was
Issue: defined. There’s a map annexed to the Treaty of Paris.
(1) Whether title to land may be gained by a State In the map, the Island of Palmas was included. So just
through its continuous and peaceful display of
like any buyer of a property, the US checked the island
sovereignty over the territory in which the land is
only to find out that the Dutch government had actually
located.
occupied the Island of Palmas. So basically the dispute
Ruling: was about who had a better right over the Island of
(1) Yes. Palmas (the discoverer or the one who exercised
The Netherlands peacefully and continuously possessed territorial sovereignty)
Palmas for a sufficient period of time to gain territorial
sovereignty over the island. Territorial Sovereignty (as defined by Max Huber)
Territorial sovereignty over land may be gained by a It refers to the right to exercise in a territory, to the
State which is not the first discoverer of the land if that exclusion of any other state, the functions of a state. It
State peacefully and continuously possesses the land for
must be open and public. Discovery could only exist as
a period of time.
an inchoate title, as a claim to establish sovereignty by
(2) The right of territorial sovereignty is not complete effective occupation.
through mere “discovery” of land. Once a State views a
new territory, it only obtains an “inchoate” title to the What are the functions of a state?
land. The State does not perfect its title to the land
without effectively occupying the land within a Exercise of governmental functions to the exclusion of
reasonable time following the initial discovery. other states.
Even if a State possesses an “inchoate” title stemming When we study later on modes of acquiring territory,
from its role as “discoverer,” this title is defeated if discovery alone will not give rise to the right to acquire
another State later peacefully and continuously enters territory. And that’s one of the rights of a states, the
and occupies the land for a period of time before the power to acquire territory. Discovery alone will not give
discoverer State has the opportunity to do so.
rise to ownership of a particular territory but it should be
coupled with effective occupation which Spain failed to
Spain received its claimed title to the land through first
discovery in the early seventeenth century. At this point, do or exercised after the discovery. Upon discovery, the
however, the title was merely “inchoate” as Spain had only right given to the discoverer is the inchoate title to
not effectively occupied the land. Shortly thereafter in establish territorial sovereignty.
1677, the Netherlands peacefully entered Palmas and
began continuously possessing it. The United States Although international law does not fix the period within
received its claimed title to Palmas through cession from which this inchoate right or when this inchoate right may
Spain. If the United States has better title to Palmas expire. But what is certain, is that in a case-to-case
than the Netherlands, it will only be because Spain
basis, the Island of Palmas should have been under the
successfully perfected its inchoate title by effectively
occupying Palmas before the Netherlands began Spanish rule during the 333 years of occupancy in the
peacefully and continuously possessing it. Philippines (it’s near the Philippine islands after all) but
they must have failed to exercise that inchoate title. So
There is no evidence that Spain perfected its title before between discovery and territorial sovereignty, Max
the Netherlands began peacefully and continuously Huber ruled in favour of the latter. In other words, it’s
possessing Palmas. Rather, all evidence suggests that not sufficient that you discover and claim a particular
when Spain ceded its title to the United States in the
territory but you must prove that you exercised
1898 Treaty of Paris, it ceded an inchoate title only. The
United States could not receive a greater title than Spain territorial sovereignty before you can say that that
had to give. Thus, the United States’ title to Palmas is territory is part of your state.

There is also no requirement of contiguity. Why what happened in 1918 that led to international
committee of jurists to allow? Because the ruling there
Annexation by a foreign power of a portion of your indicated the way we analyzed whether a government
territory would not diminish the territory of a particular already has effective control. Because effective control
state. requires internal and external control as well. Internal
control is when there is a stable political government
GOVERNMENT
that is able to command obedience and run and
For the government to be considered as an element of administer the territory. And the external control aspect
statehood, legitimacy of that government is not is illustrated in that description of the international
required. Because we establish a government in committee of jurists, that it was only in 1918 that the
accordance to the constitutional process. Meaning intra- government of Finland was able to self-govern without
constitution and that government established would be a the aid and assistance of the military forces of Russia.
de jure government. Because it had been lawfully or
At that time, they were under the government of Russia.
legitimately established.
It was only when the Russian troops left that they were
But there are also governments that established itself able to run the government without the assistance of an
outside or even against the constitutional procedure. outside force. That’s why Shaw said that the meaning of
Military occupation by foreign forces in the past for independence as a supposedly separate element of
example. The idea in this class, is that whether the state. The ability of the state to run its government
government having effective control is de jure or de without the assistance, it’s not without pressure or
factor, is irrelevant. De jure or de facto is only relevant if without the dictates of other states cause if the meaning
we talk about recognition of government but for of state is without pressure, ma ihap ra nimo pila ka
purposes of statehood, it doesn’t matter. states. That is not the meaning of independence if we
say that we are outside the pressures of outside forces.
Whenever you have at least 2 contesting governments in Meaning that is inevitable in international relations.
a particular territory, that will give rise to the need to Independence, as defined by Shaw, is being to run a
characterize which government is de facto or de jure. government without the assistance of a foreign state.
Because you don’t use de facto or de jure if there is no That is taken from the pronouncement in the Aaland
contest. If there are at least 2 contesting governments, Islands Case. Of course temporary deprivation of
the one that is exercising the powers of government effective control will not diminish statehood.
actually but does not have the legitimate authority to do
so, like a revolutionary government, then you call it de The question of effective control is largely dependent on
facto government. It exercises powers in fact but has no facts. That’s why continuing issue in statehood
authority. discussion is if statehood is statehood is a question of
fact or question of law. Some scholars have advanced
The government that had the authority but was the argument that truly, at the end of the day, that
overthrown and now no longer exercises the powers of statehood is a question of fact and not much on law.
government, is called de jure. So we don’t consider a
legitimate government for purposes of determining Effective control may or may not be given a high or
whether there is such a government as an element of a strict threshold in international law. You should be aware
state. that there is a requirement of effective requirement but
we raise the threshold in certain situations and we lower
In the Aaland Islands case, the international committee it in other situation. When does this happen?
jurists noticed that Finland became a state only in 1918.
Meaning at that relevant time when it asserted territorial Or a self-governing territory that had experienced for
sovereignty, it wasn’t a state. It became a state in only example, collapse in rule of law. Failed states or failing
1918 although the case was settled because Aaland was states for example. How will the collapse of governance
told not to secede because Finland committed to give or rule of law affect statehood? Scholars have advance
Aaland a level of autonomy that they wanted. that when a state is considered as a failed state, it lacks
the element of effective control. Meaning the

government is unable to establish rule of law. There’s a time, a different state would practice or exercise foreign
collapse in the rule of law. affairs.
According to scholars, we see the requirement of This is in fact is justified by the principle you have
effective control liberally in such a situation. If the state learned in Consti 1 which is called The Doctrine of Self
is existing and it experiences some degree of collapse in Auto-Limitation. This protectorates and associates
governance, it shouldn’t affect statehood. The idea is possess the capacity to enter into international relations
that the collapse is a temporary occurrence that time will but by virtue of a treaty they have permitted other
come that the government can re-establish order. So states to exercise this capacity for them. In IL, we don’t
even if literally wala nay control, still it can comply with consider that as a diminution of sovereignty because
the requirement of effective control, lower ang threshold sovereignty should not diminish otherwise it is not
in this situation. sovereignty. There was only a diminution of the exercise
of that sovereignty. That is Doctrine of Self Auto-
But where it involves the emergence of a new state out Limitation.
of an already existing self-governing state, like in the
case of unilateral secession of a state, international law SUI GENERIS TERRITORIAL AND NON-
requires a very high threshold of effective control for TERRITORIAL ENTITIES
that new emerging state is a state under international
law. So if the situation is that there is one territory is
I’d like you to see how states or international community
ascertaining independence, they will have to establish
view or deal with the ff: (See Damrosche extensive
governance. Now whether or not it has become a new
discussion on this)
state, would require a high threshold of effective control.
Why? We call them entities with special status because all of
these under the standards of the Montevideo Convention
Because the mother state would resist on any
with regards to elements of statehood, they cannot
separationist movement and the resistance is actually an
pass. So they are irregular entities and cannot be
exercise of a right of that state to territorial integrity. So
considered as states but nonetheless exercising the
looking at international law, the mother state contests
powers and rights of a state.
and asserts that they are still in control and the new
government says that they are the ones in control, 1. Holy See
requires a higher threshold because the mother state is
exercising a right under international law. The Vatican City is a territorial state. The Holy See is the
governing authority of Vatican City but the one who
CAPACITY TO ENTER INTO RELATIONS WITH enters into a treaty is the Holy See represented by the
OTHER STATES Pope. There is a council, Pope and a body of Cardinals.
The problem here is, the Pope enters into a treaty
The fourth element is capacity to enter relations with independent with the Vatican City. So Holy See is a non-
other states. Limited capacity to enter into international territorial entity.
relations will not prevent the existence of a state.
2. Palestine
Situations involving protectorates for example and
associated states cannot be considered as lacking in What’s wrong with Palestine? Its ability to prove that it
capacity but only limited capacity. In protectorates for has exercised effective control over the disputed areas
example or associated states, these are usually colonized with Israel. In 2012, it has been elevated to non-
states trying to gain independence. In most cases member state status.
former colonies would not have the competence yet to
conduct its foreign affairs so normally they would permit *Palestine and the Holy See are non-voting members.
through the exercise of its own sovereignty they would They can participate but cannot vote in the UN.
permit the exercise the capacity to enter into foreign Members in the sense that if you list them, they are
relations by a powerful state until that protectorate or included but they cannot vote, decide and sign
associated state will gain full independence. During such resolutions.

3. Taiwan PRINCIPLE OF UTI POSSIDETIS JURIS
What’s the problem with Taiwan? Taiwan was able to
enter into treaties it has joined the International (this came out in the bar exams)
Agreement on Tariffs and Trade and other treaties. Only
states can enter into these agreements and treaties. Boundaries of colonial territories will have to be
Since due to the One China policy, states have agreed to respected by states. It started as a regional custom but
recognize the People’s Republic of China as representing eventually accepted as a custom, more of general
China so Taiwan is not recognized by other states but principle of law than CIL.
although recognition does not affect the statehood but
politically, it’s dependent on recognition of other states. SELF-DETERMINATION, SECESSION AND
Even before recognition, state has right to defend its RECOGNITION
territory, etc. Recognition is never considered as an
RIGHT TO SELF-DETERMINATION
element of statehood but later on you will learn that
there are legal consequences of recognition. It is not an
element of statehood but there are consequences on the Right to self-determination consists of:
lack of recognition whenever there is recognition.
1. The right to determine the political status and is
Taiwan makes it problematic for Taiwan itself to be
applicable to colonial territories
considered as a state under the IL because it lacks
2. Freedom to pursue economic, social and cultural
effective control over its territory since Taiwan claims development.
that it is the government of Taiwan that is representing
the entire China and it has no effective control of How relevant is the people’s right to self-
Mainland China. The history of Taiwan tells us that it determination in statehood discussion?
was occupied before by Japan for many years
(Formosa). The Communist China of Mao Zedong and You have been able to understand the evolution of the
the Nationalist Government of Chiang Kai Shek and the right to self-determination if you read the twin Advisory
strategy of Mao was to take advantage of the problem of Opinions – SC of Canada on secession of Quebec and
the peasants so the Nationalist Government was toppled ICJ AO on unilateral declaration of independence of
down and they were forced to exit Mainland China and Kosovo.
transferred to Formosa and still continues up to now and
It is relevant on the discussion of statehood because our
claim that they are still the government of Mainland
main concern is if a particular identifiable group of
China. Silaragihapongahatagugproblema why they
people demands secession from the state, will there be a
cannot be called a state. If they give up, then they can
valid creation of a new state? under the circumstance
be called a state because they have effective control
where secession is unilateral. Of course, there is a
over Taiwan. International community is also dealing
secession that is bilateral meaning it is agreed upon by
with Taiwan as they are members of international orgs,
the territory and the mother state. So mostly, it is
etcand now they are happy because Donald Trump
possible in the federal state. Usually they agree then
called the head of Taiwan and recognized them while in
amend the constitution and you will be granted
1979, the policy of US was the One China policy.
independence. There is no question about it but if the
4. Hongkong and Macau secession is unilateral meaning against the will of the
self-governing territory. Kosovo for example unilaterally
They are Special Administrative Regions and they are declared independence and now it is treated as a
part of Mainland China but under its basic law, they are separate state although some scholars question the
permitted to enter into foreign relations. They are premature reaction of the NATO forces and the passive
unique kay mastaas pa sa federal state. Hongkong reaction of the Security Council on the matter.
enters into treaty and in fact maintains its own military.
They have basic law but still the important areas of The right to self-determination started during the
governance lies in PR of China. colonial regime. There had been colonies and the
international community realized that the only way to
maintain peace in certain territories is for the colonizers
to grant independence to colonized territories. That’s Paragraph 15 of resolution 1244 (1999) demanded that
why in 1960, the UN General Assembly issued a the Kosovo Liberation Army (KLA) and other armed
resolution declaring or granting independence of all Kosovo Albanian groups end immediately all offensive
actions and comply with the requirements for
colonies. In this document, there is recognition of what
demilitarization. Between February 20 and 8 September
is now called the right to self-determination. All peoples 2006, several rounds of negotiations were held, at which
have the right to self-determination by virtue of the right delegations of Serbia and Kosovo addressed, in
they freely determine their political status, they freely particular, the decentralization of Kosovo’s governmental
pursue their economic, social and cultural development. and administrative functions, cultural heritage and
So the origin of the right to self-determination is in the religious sites, economic issues, and community rights.
colonial period.
After the declaration of independence was issued, the
Is there such a thing as the right to self- Republic of Serbia informed the Secretary-General that it
determination in the post-colonial period or in had adopted a decision stating that that declaration
self-governing territories? represented a forceful and unilateral secession of a part
of the territory of Serbia, and did not produce legal
In the context of colonial regime, can you transpose the effects either in Serbia or in the international legal order.
right to self-determination in a situation where a
territory is already part of an existing state and it wants Issue:
to separate by reason of right to self-determination?
Whether the declaration of independence of Kosovo was
There is no question in colonial period because the
in accordance with International Law?
colonizer can grant you independence, it will give you
right to determine your political status, give you the Held:
right to pursue economic, social and cultural
development. In the opinion of the SC of Canada No, the Court recalls its conclusions reached earlier,
regarding secession of Quebec, while this is an opinion namely, “that the adoption of the declaration of
of a domestic court, scholars have found the judicial independence of 17 February 2008 did not violate
reasoning and evaluation of the court as reflective of general international law, Security Council resolution
how these issues should be resolved. 1244 (1999) or the Constitutional Framework”. Finally, it
concludes that consequently the adoption of that
SECESSION declaration did not violate any applicable rule of
international law.
1. Is there a law regulating unilateral declaration of
independence? Can any group of people simply The Court considers that general international law
declare independence and there is no legal contains no applicable prohibition of declarations of
consequence? independence. In no case, however, does the practice of
2. What is the difference between unilateral States as a whole suggest that the act of promulgating
declaration of independence and secession? the declaration was regarded as contrary to international
law. On the contrary, State practice during this period
IC Advisory Opinion on the Unilateral Declaration
points clearly to the conclusion that international law
of Independence in respect of Kosovo (2010)
contained no prohibition of declarations of
Facts: independence.
The Security Resolution 1244 (1999) “determined to The Court observes, however, that while the Security
resolve the grave humanitarian situation” which it had Council has condemned particular declarations of
identified and to put an end to the armed conflict in independence, in all of those instances it was making a
Kosovo. It authorized the United Nations Secretary- determination as regards the concrete situation existing
General to establish an international civil presence in at the time that those declarations of independence
Kosovo in order to provide “an interim administration for were made; it states that “the illegality attached to the
Kosovo which will provide transitional administration declarations of independence thus stemmed not from
while establishing and overseeing the development of the unilateral character of these declarations as such,
provisional democratic self-governing institutions” but from the fact that they were, or would have been,
connected with the unlawful use of force or other parent nation if it is a colony, if it involves a group of
egregious violations of norms of general international people who are oppressed by the parent nation, or if it
law, in particular those of a peremptory character (jus constitutes a definable group that is denied meaningful
access to the parent nation’s government to pursue its
cogens)”.
political, economic, social, and cultural development.
DBL: In the Kosovo Advisory Opinion, there is only one
Facts:
question and that was just about whether the Unilateral
Quebec, a Canadian province, unilaterally desired to
Declaration of Independence by a revolutionary secede from Canada. After considering the case, the
government is in accordance with IL. Governor in Council referred three questions to the
Supreme Court of Canada.
Unilateral declaration of independence is not necessarily
unilateral secession because the declaration is subject of First, whether the Canadian constitution and domestic
a valuation whether it conforms with IL is simply the act laws permitted unilateral secession to be effected by
of declaring independence and precisely according to the Quebec’s government or legislature.
Advisory Opinion, IL does not prohibit that. But it doesn’t
Second, whether international law permitted unilateral
mean that secession occurs as a result of a unilateral secession to be effected by Quebec’s government or
declaration of independence because we distinguish legislature.
between a unilateral declaration of independence that
has become effective and a unilateral declaration of Third, if international law did permit such a right when
independence which has not become effective. domestic law did not, whether international law would
trump domestic law and permit unilateral secession to
The process would require (not always) but assuming be effected by Quebec’s government or legislature.
that it is a unilateral declaration of independence then
Issue:
separation of a territory from the mother state and if it is
(1) Whether, under international law, a general,
coupled with unilateral declaration of independence, unilateral right of secession for entities exists which
then it might just be the first step of secession. trumps any domestic law to the contrary.
Secession is really a process. It is not a singular act.
Ruling:
Unilateral declaration of independence by itself will not (1) No.
necessarily translate to secession. That’s why we Under the international law right of self-determination,
distinguish between effective and ineffective declaration a part of a nation may only unilaterally secede from its
of independence. parent nation if it is a colony, if it involves a group of
people who are oppressed by the parent nation, or if it
Remember Emilio Aguinaldo, he declared independence constitutes a definable group that is denied meaningful
access to the parent nation’s government to pursue its
on June 8 but that was not an effective declaration of
political, economic, social, and cultural development.
independence. In fact, after Spain, there was never a
state called Philippines because we were then under US In all other circumstances, no external right of self-
after the Treaty of Paris. That was an example of an determination exists in international law, and domestic
ineffective declaration of independence. That’s why it is law applies. (Denial of Right to Internal Self-
wrong to celebrate Independence Day on June 12, 1898. Determination)
(Angsaktoananga term class kay “unilateral declaration
General principles of international law do not specifically
of Independence Day! Hahaha) The real independence
grant nor prohibit parts of sovereign States the right to
that we should celebrate really is July 4, 1946. unilaterally secede from their “parent” States. However,
just because unilateral secession is not specifically
Take Note: There is no express prohibition or prohibited does not mean that such a right may be
there is no specific rule in IL that prohibits inferred.
unilateral declaration of independence.
Numerous United Nations and other international
Reference re Secession of Quebec conventions recognize the right of peoples to “self
determination,” or the right to freely choose their
Under the international law right of self-determination, a sovereignty and international political status without
part of a nation may only unilaterally secede from its external pressure or interference. The term “peoples”
may include citizens of an entire State, or merely citizens invoked in a self-governing territory? Like Canada for
of one part of the State. example, it is self-governing and Quebec is only a part.
The international right of self-determination for peoples So can the portion of a self-governing territory
is normally fulfilled through internal sources—that is, claim the right to separate or secede by invoking
peoples are generally permitted to pursue their political,
right to self-determination?
economic, social, and cultural development within their
own State and State institutions. However, when this is The Supreme Court in Canada said that, yes there may
not the case, peoples may be entitled under
be such right to self-determination but it must be
international law to pursue their right to self-
determination through external sources, such as exercised within the framework of sovereign and
secession. Common examples of when the right to self- territorial integrity of states. So, you have your right to
determination for peoples is jeopardized internally self-determination, in fact it is erga omnes on the part of
involve factual situations such as colonies, where people states to recognize the right to self-determination If you
are oppressed in some manner (such as under a foreign are an identifiable group of people and you have your
military occupation), or where a definable group is
own culture and tradition and there is a need for you to
denied meaningful access to government to pursue its
political, economic, social, and cultural development. freely determine social, cultural, political and economic
development so you are invoking the right to self-
No such circumstances exist in Quebec. There are no determination but it does not mean that such invocation
signs of oppression or lack of access to government for of the right to self-determination should already be or
Quebec’s citizens, and Quebec itself is not a former right away coupled with separation or secede from a
colony. Thus, while secession for Quebec could be territory because it said that it must be consistent with
justified out of necessity as a “last resort” option, the
the territorial integrity of states.
present factual circumstances do not support such an
outcome here.
So the SC of Canada clarified it, this is a local case
Thus, there is no international law-supported right to decision but this has been quoted by many scholars
external self-determination for Quebec, and Canadian studying right to self-determination regarding what
domestic law governs the case. The Canada constitution should be the IL on the matter. Of course, secession is
and domestic laws prohibit secession, and thus Quebec the extreme.
may not legally secede from Canada.
In Kosovo Advisory Opinion, it made reference to the SC
(2) When domestic law prohibits secession, international of Canada in 1998, so in 2010 in the advisory opinion of
law generally respects this conclusion unless specific the ICJ, the decision of SC of Canada was quoted which
rights regarding the “self-determination” of “peoples”
actually accepted the possibility of a “remedial
are involved, rather than just States.
secession.” This remedial secession was worded in the
decision of the SC of Canada in the context of external
DBL: But one thing is clear though, there is this self-determination which according to the SC of Canada,
evolution of the unilateral declaration of independence the IL on right to self-determination only generates at
during the period of decolonization and I think I best a right to external self-determination in situations:
mentioned it last time that what was the subject matter
in the opinion of the SC of Canada in the case of Quebec (1) Former colonies
whether this idea of self-determination permits an (2) Where a people is oppressed ex: under
effective secession. I told you the idea of self- foreign military occupation
determination was talked about in the context of colonial (3) Definable group is denied meaningful access
regime/period. Colonial territories have been granted to government to pursue their political,
independence by reason of the right to self- economic, social and cultural development
determination. Colonizing powers recognize that the
This is now the meaning of what we called “remedial
colonized territories and the inhabitants there were
right theory on secession.” In the case of Quebec for
entitled to determine freely their political status, social
example, it cannot be considered as a former colony, the
and economic development. The question now is the
people are not oppressed, so in the third situation, the
right whether the right to self-determination can be
SC of Canada now explained whether the people are

denied meaningful access of the government to pursue and to define the jurisdiction and competence of its
their political, social, cultural and economic courts.”
development. The SC ruled in the negative because the
people of Quebec were not denied of such access to the So, there are two theories in the effects of recognition in
government but in fact, they were allowed to run for so far as the discussion on state recognition is
significant governmental posts. In fact since Quebec is a concerned.
federal state, it is required that someone from Quebec
1. Constitutive Theory – act of recognition
should sit as a representative in the Supreme Court.
that makes the state, a state. Without the
That’s why the BBL wants to copy that. There must be
act of recognition, it is never a state under
someone from the Autonomous Region which will then
IL.
be called the Bangsamoro region in the Supreme Court.
2. Declaratory Theory – recognizes that
In the BBL, there is also a requirement that there is a statehood may be attained without need of
percentage in the cabinet posts which should be from any such declaration and any declaration is
the autonomous region. only confirmatory of that fact of statehood.
Unlike in the case of Kosovo, it was obvious that it was a The more likely supported theory in IL on recognition of
state-sponsored ethnic cleansing and there was denial of states is declaratory theory. As can be gleaned from Art.
access to the government, even public school teachers 3 of the Montevideo Convention of 1933, that regardless
are removed. That’s what we call “remedial right theory of recognition, that state exists as such and is entitled to
in secession.” exercise territorial integrity and self-defense.
We have the case in 1998, the Opinion of the SC of There are several subjects of recognition. There is such
Canada, the ICJ recognized the value of that opinion and a thing as:
made reference to that decision and the Kosovo Advisory
1. Recognition of states
Opinion welcomed the application of Buchanan’s
2. Recognition of governments
remedial right theory in secession. But of course, what
3. Recognition of belligerents
will always be the guiding principle is that general IL
contains no applicable prohibition in the unilateral What then is the value of recognition in IL?
declaration of independence. That is settled. When it
comes to secession, this is still a development in IL and I 1. Full diplomatic relations, except in the case of de
don’t think the IL will be very much willing to accept it facto recognition
as a definitive rule. That is why it is a remedial theory 2. Right to sue in the courts of the recognizing
only because it will encourage groups who are not state
actually denied of government access to claim that they 3. Entitlement to property within recognizing state
are denied just so they can claim separation from a 4. If recognized by other states, its previous acts
territory. will be validated
5. It can own property within the territory of the
RECOGNITION OF STATE recognizing state
Recognition is not an element of statehood. What about the recognition of governments?
What is the basis to that? Situation: If State A recognizes State B, as a state,
does it also recognize the government of State B?
Article 3 of the Montevideo Convention
If State A recognizes State B as a state, it merely
“The political existence of the state is independent of
recognizes that state as a state but it does not
recognition by the other states. Even before recognition,
necessarily recognize which government because it is
the state has the right to defend its integrity and
possible that in a particular state, there are contending
independence, to provide for its conservation and
governments. It does not necessarily result in the
prosperity, and consequently to organize itself as it sees
recognition of that government.
fit, to legislate upon its interest, administer its services
Recognition of governments simply means recognition of Kadic v. Karadzic
a government which has effective control over the
territory. According to Akehurst, if recognition of Facts:
government is made, it should also carry with it the
recognition of the state. Plaintiffs, who were victims and representatives of the
victims of atrocities, appealed the dismissal of their
There is a term called “co-optation”, this term is action against defendant, the leader of a foreign
borrowed from scholars not in modern IL but while territory, by the United States District Court for the
recognition of a state is not indispensable to statehood, Southern District of NY, in an action under the Alien Tort
particularly with respect to jus cogens and erga omnes Act, and the Torture Victim Protection Act of 1991.
norms, the newly-established state can only enjoy
privileges in the international sphere called co-optation. Plaintiffs, victims and representatives of victims of
atrocities, brought an action against the defendant, who
Co-optation – individual and collective was a leader of a foreign territory. The trial court
recognition by already existing states that dismissed the action.
integrates the new state in the int’l community.
Karadžić is facing charges on 11 counts for genocide,
This discussion on statehood also opens another
crimes against humanity and severe breaches of the
discussion on whether statehood is a question of fact or
Geneva Convention for his role in the 1992-1995
question of law. In fact when you notice in the sui
Bosnian war, especially for the Srebrenica massacre of
generis states (Holy See, Taiwan, etc) they are not
July 1995. Consolidating two 1995 indictments into one
regular entities but they are treated states in the int’l
single document, the current indictment against Karadžić
community. Effective control to a specific territory is a
(IT-95-5/18) was confirmed on 31 May 2000.
question of fact. Even if we assume that Kosovo is not a
Specifically, it includes one count of a grave breach of
subject of oppression or indeed it was entitled to
the Geneva Conventions of 1949, three counts of
remedial secession, the fact that Kosovo after its
violations of the laws or customs of war, two counts of
unilateral declaration of independence had been
genocide and five counts of crimes against humanity.
accepted as such by the community, should render or
take Kosovo as a state nonetheless. Similarly, even if
Ruling:
you have all the elements of statehood, from the legal
point of view but you have never been integrated in the
The court reversed and held that there was subject
int’l community, it is difficult for you to exercise you
matter jurisdiction under the Alien Tort Claim Act,
rights. You can only exercise right to self-defense but it
because aliens brought an action for a tort committed in
is a dormant right that you can exercise. You have all
violation of international law. Genocide, war crimes,
elements of statehood but another state will not
torture, and summary execution are against international
recognize you as a state and will not permit you to have
law and the defendant could have been liable as a
diplomatic relations.
private individual. Although defendant's foreign territory
This was asked in the bar exams many times, was not recognized as a formal state, it had the
recognition is a highly political act, it is highly trappings of a state, including sovereignty over people
discretionary. In fact failure to recognize would not and land. As a result, defendant may have been liable
engage any state responsibility because it is a political because he was the leader of a de facto government and
question. At the end of the day, statehood is also about was acting under color of law when the atrocities
a discussion of facts and not only law because even if occurred. SECTION 2(a) of the Torture Victim Protection
you have all elements of statehood but you have never Act of 1991 provided for subject matter jurisdiction
been integrated in the international community, you’re through the Alien Tort Claim Act. Even though defendant
as good as a non-state. was a United Nations invitee in the United States,
defendant was not immune from service of process.
Plaintiffs' claims were not a non-justiciable political
question because of the nature of the claim.

The court reversed the judgment for defendant, leader executive, legislative and judicial departments. So these
of a foreign territory, and ruled for plaintiffs, victims and discussions by the Court, readily satisfied the criteria of
representatives of victims of atrocities, because there a state in all aspects of IL. But of course, we still want to
was subject matter jurisdiction, defendant could have know whether nag-realist baang Court in this case just
been liable for genocide, war crimes, and crimes against so the case will progress within the framework of the
humanity in his private or official capacity, and there Torture Convention. Otherwise it would have ruled that
was no immunity from service of process. Srpska is not a state then the claim under the Torture
Convention would not prosper. That is something which
DBL: In Kadic v. Karadzic, for violations of human we should then qualify.
rights, acts of genocide, war crimes, crimes against
humanity have been located in this small territory in One of the consequences of recognition of the
Bosnia. In US, there is this Alien Tort Act which will recognizing state is that recognition has a retroactive
permit even foreigners to file a case in the US Court to effect. It can validate the past acts of the government.
claim for damages for violations of certain human rights.
So now the victims of these atrocities in the US filed a ACT OF STATE DOCTRINE
case against the former leader in Srpska. The question States being coequals, no state is permitted to pass
is, since war crimes, crimes against humanity and judgement on the validity of the acts of other sovereign
genocide would not require the elements of being a co-equal states.
state because these are crimes which may be committed
in the context of state or even no state at all. The Underhill v. Hernandez
perpetrators may really be condemned and convicted of
Principle:
these crimes. But for the crime of torture under the
Acts of a recognized government are considered as
Torture Convention, torture has to be state-sponsored.
legitimate and acts of the state as far as the recognizing
It must carry a different name. So the moment you say,
state is concerned.
this is torture under the Torture Convention, you are
actually referring to acts of torture perpetrated by
Facts:
agents of the state and therefore state-sponsored. In
There was a revolution that occurred in Valenzuela,
the determination whether there is a violation of the
which was led by Hernandez. Hernandez rose into
Torture Convention, because it is important for the US to
power, and formed a new government. The government
evaluate whether Srpska can be considered as a state
was then recognized by the United States. Underhill is a
otherwise it is inappropriate to invoke the Torture
U.S. citizen. He constructed waterworks for the City of
Convention against a leader of a territory that cannot
Bolivar. He had a contract with the government with
constitute a state. So the US in the course of its
regards to his machinery repair business.
discussion defined “state” as an entity that has a defined
territory, and a permanent population under the control
Underhill applied for a passport to leave the city.
over its own government and that engages in rational
Hernandez refused. After a couple of days, Underhill had
capacity to engage in formal with other such entities. In
successfully come back to the U.S. When he got back,
the process it also affirmed that recognition is not an
he filed a case for damages against Hernandez for
element of statehood. So it is not important for the court
refusing to issue a passport to Underhill. The lower
to determine if Srpska had been recognized by other
court, however, ruled that Underhill was not entitled to
states. So as stated in the case,
recover damages.
“The customary international law of human
rights, such as the proscription of official torture, applies Issue:
to states without distinction between recognized and Whether or not Underhill may recover damages.
unrecognized states.”
Held:
And eventually, the Court found the Srpska was a state. No. Every sovereign state is bound to respect the
It has a defined territory, there was control over the sovereignty of other states. This case is like a suit
population, it made mention of the threshold of against the state. The Supreme Court of the United
State does not have the jurisdiction to sue the act of Great Britain is not necessary. The non-recognition does
Hernandez. The government of Hernandez is legitimate not destroy the status of the Tinoco government as a de
as far as the U.S. is concerned because the latter facto government. A valid contract may be formed by an
recognized the former. As much as possible, states unrecognized state. Thus, the acts of the de facto
should refrain from intervening with each other. government are valid.
DBL: At that time the court was confronted with the DBL: While Hernandez case showcases the effect of
question of, whether or not the denial of the grant of the recognition, Tinoco would illustrates to us the effects of
passport and other treatment towards Underhill was a non recognition of the government. When the Tinoco
violation of law, but since the United States have already government had controlled the territory of Costa Rica,
recognized the revolutionary government of Venezuela certain oil concessions or contracts have been entered
then it was impelled by the Act of State Doctrine not to into in favor of some British company. When a new
pursue/proceed further into determining the validity of government was established replacing that Tinoco
the act of that of the revolutionary government. So if the regime, these aforementioned contracts and concessions
question was whether to judge the act of the have been revoked and so Great Britain complained. So
revolutionary government, to rule if it was valid or Costa Rica claimed that “well, great Britain at that time
invalid then US Court said, we refuse to determine and you did not recognize the Tinoco regime as an effective
pass judgement on the validity of the act. Anyway, the government, so you’re now estopped.”
recognition of government will have the effect of
validating certain acts committed by a government, The Arbitration said that non-recognition will not amount
herein case at bar is the revolutionary government. to an estoppel on the part of great Britain. There was no
estoppel because the successor government have not
Tinoco Arbitration been led to change its position anyway because of the
non-recognition made by the British government.
Principle:
Non-recognition does not destroy the de facto status of
RECOGNITION OF BELLIGERENCY
the government.
Whose recognition is the subject matter of
Facts: inquiry and which government would be
The Tinoco regime had seized power in Costa Rica by a concerned about the effects of recognition?
coup. The government was not recognized by Great
The government where the belligerency takes place may
Britain. When the regime was removed, the new
be concerned because it probably wants to acknowledge
government nullified all Tinoco’s contract including an oil
that the belligerency has a separate international legal
concession to a British company. The claim of Great
personality for purposes of determining whether the
Britain was that the contract could not be repudiated
laws of war will be applicable to that. Under the 1949
because the Tinoco government was the only
Geneva Conventions, a belligerency that will be
government in existence at the time of the contract was
conferred or given an international legal personality will
signed. This view was not shared by Costa Rica who
also be governed by the laws of war. In fact those
claimed that Great Britain was estopped from enforcing
freedom fighters/movements invoking properly the right
the contract by its non-recognition of the Tinoco regime.
of determination, they may be considered a high
The matter was sent for arbitration.
contracting party in an armed conflict for purposes of
the Geneva Conventions in 1949. So for the part of the
Issue:
government where the belligerency occurs, it may be
Whether or not the acts of a de facto government,
important for them in deciding whether to recognize or
although not recognized, are valid.
not because it wants to see whether the belligerent
group will be governed by the laws of war.
Held:
Yes. The fact that the Tinoco regime is a de facto Let’s contextualize, so we want that this belligerent
government validates their acts. The recognition of group to observe the laws of war so that when they

arrest regular armed forces, then the belligerent group fact amount to what we call INTERNATIONAL CRIMES
would be impelled to give them the rights of a prisoner and it can be tried under international tribunal. When we
of war. Reciprocally of course because we are now to be study later on the Rome Statute, under war crimes,
governed by the Geneva Convention, the rebels who will nakalisted even mga crimes na can be punished
also be captured by the regular forces then we are also domestically. There is war crime of murder, war crime of
willing to treat them as prisoners of war. And therefore extermination, war crime of impregnation, etc. That’s
any atrocities committed either by the belligerents or by why recognition is very important for purposes of
the regular armed forces will no longer be governed by determining which law will apply if belligerents commit
the domestic law of the state. acts of atrocities.
Its also important for 3rd states to decide whether to
recognize belligerency in the territory of another. Elements of "belligerency" for purposes of
recognition:
Why? What would be the interest of 3 rd states
1. Occupation of substantial portion of territory
when there is an armed conflict in a territory of
2. Organized civil government supported by the majority
another? of the inhabitants in the territory
3. Conflict between legitimate government and the
The 3rd states concerns would either be giving the
belligerents is serious and outcome is uncertain,
belligerents group international legal personality or not 4. Belligerents are willing and able to observe laws of
in respect to the act of the belligerent groups affecting war and other international obligations.
its own nationals.
International law in general and the 1949 Geneva
Example: There is an armed conflict in the territory of conventions have offered some sort of guidelines (see 4
State X where nationals of State Y may be found, elements of recognition above). These are guidelines for
whatever happens to the nationals of State Y in State X’s some states in deciding whether or not to recognize the
territory there is an armed conflict which will give rise to belligerent group. It cannot be really the law, because as
the question as to who should be held liable? Either the I have said recognition is a HIGHLY POLITICAL
government of that state where the armed conflict QUESTION. But for purposes of recognition, states will
occurs or the rebel/ belligerent groups. look into the following to determine whether the group
can be considered properly as belligerents in
Later, we will study the law on state responsibility and
international law and if the group does not qualify as
generally under that law anything whether the
belligerency under international standards. International
population, government or even rebels for as long as
law will simply look at the situation in that state as a
they are not given separate personality their acts under
situation of INSURGENCY. The younger version of
certain conditions may still be accredited to that state
belligerency is insurgency.
because they form part of the state. Whereas if you give
the rebels international legal personality, then you are Example: When you have new people’s army (NPA) in
giving the rebels separate personality from that of the the Philippines still holding war against the government
state where the armed conflict occurs. So if you want to but it has not occupied a substantial portion of the
know which regime or law should be applied to the territory, there may be an organization but there is no
rebels if they commit acts of atrocities, “killing” for civil government supported by majority of the
example will give rise to murder and if the rebels have inhabitants then definitely the conflict is not that serious.
not been recognized then they don’t have international
legal personality consequently they don’t have The same thing applies for what happened in
international obligations, then they can only be mamasapano saf44 tragedy. The manner in which they
subjected to domestic prosecution under the penal law were killed were so barbaric. So mao to niquote ang
of that state. So if its in Philippines then its murder or mga radio, t.v and paper commentaries are they
rebellion under the revised penal code. governed by Geneva convention on how to treat
captured combatants? They cannot impose upon them
But if the belligerency is recognized by the foreign the principles of international law because these are not
government then instead of prosecuting the offenders actually rebels, the same way ISIS cannot qualify as a
under the domestic law of that state, the killing may in belligerent group because they may have an
organization but its not a civil government supported by DOCTRINE OF STATE CONTINUITY
majority of the inhabitants of that particular territory.
STATE CONTINUITY
We’re not saying they are not bound by any norm as to
how they would behave in treaty captured officers but DOCTRINE OF STATE CONTINUITY
what we’re saying is its not appropriate to apply
The moment a State is established as an international
international law with regard to these rebels/criminals
person, the State continues to be the same corporate
therein in the mamasapano incident. Definitely, they
person whatever changes may take place in its internal
have to qualify with the guidelines of belligerency if they
organization. This continuity of the legal personality of
want to apply these standards.
the State may withstand even the most radical
So from the perspective of the 3rd State, its really transformations in its constitutions. Thus, temporary
impossible for any 3rd State for that matter to even absence of governmental control (e.g. civil war) will not
recognize them as belligerency. That’s why it’s change statehood.
incumbent upon the government to really make sure
DBL: It is still the same State that continues to exist and
that we don’t cause damage to 3rd States with regard to
so despite changes in government, treaties shall
our treatment to aliens in our territory. Because
continue and in fact a temporary absence of
whatever happens to them, this may be attributed to the
governmental control will not affect the status of the
government since the criminals have no international
State as such.
personality. That’s why if we don’t recognize them as
belligerents, its incumbent upon us to exercise control STATE SUCCESSION V. GOVERNMENT SUCCESSION
over them otherwise if we think we cannot control them
then we should recognize them as belligerents so that STATE SUCCESSION
their acts will not be attributed to the Philippine
Is when there is a change in sovereignty otherwise what
government. Those are the nuances in recognition of
may occur is simply a government succession and we
belligerence.
need to know the consequences of these two. With
Effects of Recognition of Belligerency regard to State Succession, one principle you must take
note is the clean slate doctrine.
Before Recognition
CLEAN SLATE DOCTRINE- the moment one state
The rebels are subject to the principal laws of the succeeds another, the successor state is not bound by
legitimate government and responsibility generally international law to assume the obligations created by
attaches to the government in which the rebels have the predecessor state when it entered into various
caused on the state with respect to their nationals treaties, so treaty-based obligations are not assumed by
present in the territory where there is conflict of force. the successor state.
After Recognition EXCEPTION:
When the belligerent community is recognized then it Treaties that deal with local rights and affecting
will be given an international personality for the purpose territories. Servitudes and boundaries are binding upon
of applying the laws of war as found in the Geneva the successor state, that’s the only limitation to tabula
conventions. And of course, 3rd states may now observe rasa.
neutrality.
It becomes optional on the part of the successor state to
whether assume the treaty-based liabilities or not, so the
most apparent effects of state succession would be
obviously the transfer of allegiance of the inhabitants.
Consequently therefore political laws are automatically
abrogated, the reason for this is that political laws
governed the relationship between the sovereign and

the people. And so when you replace the sovereign with If the change in government is extra-constitutional, we
another one, you therefore cancel that relationship. make a further distinction as to the type of the
obligation. Because for obligations that arose out of the
Non political laws may continue unless the successor regular administration of the government, they are
state expressly to a law stating it is repealed or impliedly nonetheless inherited. But for obligations that are either
through the enactment of news laws inconsistent with political or personal, the successor government will now
the former. have the option whether or not to assume this
obligation.
GOVERNMENT SUCCESSION
What are examples of political or personal
In this scenario we distinguish between rights and
obligations?
obligations. With respect to obligations we make a
further classification. This is because rights are not Before the new government is installed, it may have
adverse to the new government, then all rights of the engaged itself in a contract with the overthrown
predecessor government will have to be inherited. The government or the deposed government. Now before
problem is with respect to obligations because they are that, this predecessor government may have incurred
adverse or burden to the successor government. In this expenses in trying to resist the establishment of the
regard however, we make a further distinction, successor government. The expenses incurred by the
distinguish between peaceful succession of government predecessor government are personal expenses to that
and violent succession of government. predecessor government, those are political expenses of
the predecessor government. It doesn’t make sense if
The term peaceful or violent has nothing to do with the
even these obligations are to be shouldered by the very
situation in changing the government. Its merely
government that impelled the predecessor government
description of the manner of changing the government.
to spend or incur obligations.
If change is by peaceful means
Examples of these would be, obligations incurred for the
purchase or acquisition of arms/ammunition in trying to
It is actually referring to intra-constitutional means. im resist the establishment of the successor government.
saying this because in the past extra-constitutional Personal obligations are obligations incurred for the
means usually described as violent means of changing private benefit of the regime, usually taking place when
the government but the Philippines have shown to the corruption is involved. So when the President, borrows
world that there can be extra-constitutional change of money from another country or from an international
government that can be done rather peacefully through financial institution and the money is spent for personal
our EDSA revolution and it have been done/practiced gains because of corruption then that becomes a
also by some states afterwards. So when we say personal obligation of that regime. The successor
peaceful means, we changed one system of government government will have the option to assume the
for example from the current system of government we obligations or not.
will replace it with the federal system of government,
Example: When Poland had been under a dictatorship
may revise the constitution that is through constitutional
for decades, and when the dictator also incurred
causes. When change of government is of peaceful
obligations thru corruption. The new government
means or intra-constitutional, all obligations are inherited
established after that was a democratic government,
by the new government.
declared that it was not to assume the obligations of the
If change is by violent means dictator. And these obligations involved, among others,
the obligations towards the IMF world bank. And the IMF
If we change this government without following the world bank has a framework of permitting borrowers or
procedure in the constitution then that’s extra- condoning obligations of borrowers. The IMF world bank
constitutional, meaning outside of the constitution, we pwede na sya mucondone obligations of states but
see that as violent means. That’s how traditional subject to certain conditions. Poland was able to avail of
international law calls that. that condonation, millions of US dollars have been

condoned after the dictatorship. They would be given a
PHILIPPINE PRACTICE
fresh start, same idea with insolvency/bankruptcy.
But usually the conditions would say part of the

international corporations responsibility of the IMF world Co Kim Cham v. Valdez Tan Keh
bank and other financial institutions, dba they have
Principle:
programs to help aid developing countries. Like for
Decisions rendered by judge under a de facto
example the Philippines, we are beneficiaries of some
government are legal, as long as the cases rendered are
aids and donations of some financial institutions. Here
not under political law.
for example, the IMF world bank would see the need to
really improve our judicial system because we really
Facts:
have observed the one institution in our government
The Philippines was under the occupation of the
that had been severely neglected is the judicial court. I
Japanese military. The Japanese government, during
observed some judges they have computers and
that time, was contended to be the de facto
printers. So then I asked how come other courts, don’t
government. During that period, the Commonwealth
have it? How did SC allocate the budget? Answer, this
government was allegedly suspended. It was contended
isn’t funded by the Sc but donated by the United States.
that the courts cannot exercise its functions, and do not
So Courts even in highly urbanized cities like Cebu City
have jurisdiction over cases that transpired during the
cannot afford that. So if I am IMF World bank, I can
Japanese occupation. The legitimate government was
easily say we have program to help developing
allegedly not functioning. But then, General Douglas
countries. So instead of donating, we will just condone
McArthur made a declaration which states:
100M USD of your debts provided that from your income
like tax for example, you spend this much for the
1. That the Government of the Commonwealth of the
judiciary. Or you spend this much for typhoon victims,
Philippines is, subject to the supreme authority of the
etc. As condition for the condonation of the foreign debt.
Government of the United States, the sole and only
However, after EDSA revolution tita Cory did not avail of government having legal and valid jurisdiction over the
such option instead she declared to assume all people in areas of the Philippines free of enemy
obligations of Pres. Marcos incurred from the IMF World occupation and control;
bank. So in the early 90’s, Philippine government was 2. That the laws now existing on the statute books of
pressured to pay the foreign debt. So all budget were the Commonwealth of the Philippines and the
cut and channelled to foreign debt servicing. regulations promulgated pursuant thereto are in full
force and effect and legally binding upon the people in
To sum it all up, areas of the Philippines free of enemy occupation and
control; and.
Effects of Government Succession 3. That all laws, regulations and processes of any other
government in the Philippines than that of the said
1. All rights of predecessor government are inherited by
Commonwealth are null and void and without legal
the new government
effect in areas of the Philippines free of enemy
2. If change is by peaceful means, new government occupation and control.
inherits all obligations
It was also said that the City of Manila was partially
3. If change is by violent means, new government has liberated. Furthermore, it was alleged that the
the option to reject political and personal obligations, Commonwealth Constitution (1935) was restored on
but not those arising out of regular administration of Feb. 27, 1945.
government.
Issue:
Caveat DBL: lets skip “non-state actors” because we’ve
Whether or not the occupation of the Japanese
discussed it during the first weeks of class.
invalidated the jurisdiction of the courts.

Held: Saturnino vs Bermudez
Yes. This is in line with the principle of postliminy. This
principle is an international law principle that presumes Principle:
that the decisions rendered by courts of a de facto Ambiguity of the transitory provisions does not divest
government are deemed valid. This applies to cases that the legitimate president from his/her position as the
are not political, such as civil and criminal cases. The president.
Japanese government was a de facto government. A de
facto government may be a military government, such Facts:
as that of the Japanese government. McArthur’s The petitioner in this case questioned the legitimacy of
declaration is not binding as he is not the proper the former President Corazon C. Aquino. It was
authority to create laws. Thus, decisions rendered by the contended that it was not clear whether the president
courts are valid. was either Aquino or Marcos. The same goes with the
legitimacy of the vice presidents. The vice president may
Lawyers League for a Better Philippines be either Vice President Salvador Laurel, Aquino’s vice
president or Vice President Arturo Tolentino, Marcos’s
Principle: vice president. The contention was based on the
A president is legitimate when the people chose him/her. transitory provisions of the 1986 Constitution.
It is not up to the courts to decide on that matter, as it
is political in nature. Issue:
Whether or not President Aquino and Vice President
Facts: Laurel were legitimate.
On February 25, 1986, President Corazon Aquino issued
Proclamation No. 1 announcing that she and Vice Held:
President Laurel were taking power. Yes. Firstly, this case was mooted because the petitioner
On March 25, 1986, proclamation No.3 was issued does not have the standing. Furthermore, the president
providing the basis of the Aquino government is immune from suit. Second, there was no cause of
assumption of power by stating that the "new action. Petitioner’s ambiguity of the transitory provisions
government was installed through a direct exercise of is manifestly gratuitous. It is a matter of public record
the power of the Filipino people assisted by units of the and common knowledge. Thus, there can be no question
New Armed Forces of the Philippines." as to the legitimacy of the president and the vice
president.
Issue:
Whether or not the government of Corazon Aquino is JURISDICTION
legitimate.
JURISDICTION
Held: Why the need to study jurisdiction after having

Yes. The legitimacy of the Aquino government is not a studied statehood?
justiciable matter but belongs to the realm of politics
where only the people are the judge. Well, this is closely related with the element of
sovereignty which is compound with the capacity to
The Court further held that: enter into foreign relations and the ability to command
The people have accepted the Aquino government which obedience by the government. The best way a sovereign
is in effective control of the entire country; state can manifest its sovereignty is thru the effective
It is not merely a de facto government but in fact and exercise of its jurisdiction. In international law however
law a de jure government; and jurisdiction is perceived in several ways, we don’t just
The community of nations has recognized the legitimacy talk about jurisdiction in judicial proceedings.
of the new government.

HELD:
FORMS OF JURISDICTION
In cases where two nationalities are in conflict with each
other, the ICJ subscribes to the real and effective
NotetebohmCase (Liechtenstein vs. Guatemala, nationality of the individual. Among other factors to be
ICJ, 1955) considered are his (1) habitual residence, (2) family
ties, (3) participation in public life and (4) attachment
PRINCIPLE: For a state to be able to claim diplomatic
shown by him to his country and inculcated in his
protection over an individual, it has to be able to
children.
establish an effective nationality link between itself
(Liechtenstein) and the individual (Friedrich Nottebohm) The ICJ subscribes to this doctrine since it effectively
it wishes to represent. reconciles the inconsistencies of laws governing
nationality in different countries. What controls is the
FACTS:
effective link between the individual and the country
Liechtenstein, in behalf of Mr. Friedrich Nottebohm which wishes to espouse a claim in his behalf. This is the
instituted a claim against Guatemala on the ground that rule since the purpose of these laws are to establish the
the latter “acted in a way contrary to international law” said link.
towards Mr. Friedrich Nottebohm and his property.
So now the question boils down to which country has
Guatemala grounded its defense on the theory that
this “real and effective nationality link” in relation to
Liechtenstein’s claim is inadmissible since Nottebohm’s
Mr. Friedrich Nottebohm. The ICJ ruled that Guatemala
naturalization was irregularly done, and was contrary to
has this link with Nottebohm. Guatemala was the main
international law.
seat of Friedrich Nottebohm’sinterests, he had his
Facts in relation to Nottebohms naturalization : business and residence therein for 34 years. He even
returned to Guatemala after having his naturalization
Friedrich Nottebohm was German by birth. He moved to approved by the Home Commune of Liechtenstein. In
Guatemala, took up his residence there and worked in contrast, his dealings with Liechtenstein clearly fail to
Nottebohm Hermanos, a firm established by his establish this link. The ICJ says that the link established
brothers. He stayed in Guatemala from 1905 up to the between the state of Guatemala and Mr. Friedrich
start of the Second World War. On October 9, 1939, he Nottebohm which strengthened within a span of 34
applied for admission as a citizen of the state of years was in no way weakened by the latter’s
Liechtenstein. On his letter for naturalization to the subsequent naturalization as a citizen of Liechtenstein.
Home Commune of Liechtenstein, he asked that the
government of Liechtenstein waive its 3 year KINDS OF JURISDICTION
requirement for residency and to act on his application
1. Jurisdiction to prescribe law
immediately, in exchange, he would pay additional taxes
to its government. Liechtenstein agreed and had him The authority of a state to make its policy applicable to
naturalized and also issued to him a passport and visa persons or activities (See: Restatement 402, except for
by October 20, 1939. universal jurisdiction, which is in Restatement 404)
Does the naturalization of Nottebohm, as a citizen of 2. Jurisdiction to adjudicate

Liechtenstein, entail an obligation on the part of
Guatemala to recognize its effect? Else wise stated, does The authority of the state to subject particular persons
the act of naturalizing Nottebohm under Liechtenstein’s or things to its courts)
domestic jurisdiction have effects in the international
plane? DBL: This also hardly limited by territoriality. This is now
the authority of the court to decide a particular case or
subject matter brought before it.

3. Jurisdiction to enforce May the American courts exercise jurisdiction over a non
– criminal case for a tort committed outside its
Concerned with the authority of a state to use the jurisdiction?
resources of government to induce or compel
compliance with its law. This includes authority to arrest. HELD:
DBL: This is the one easily limited by the territoriality Yes. The protective principle may also be applied to torts
principle. The problem with enforcement jurisdiction is and not just to criminal acts. The Protective principle has
there is really this indispensable act of sending law a more general application when compared to the
enforcers in the territory of another. If we talk about, territoriality principle.
extra territorial enforcement jurisdiction. The problem
there is, the moment we extend our enforcement Also, when an individual is covered by the laws of two
jurisdiction to the territory of another without its consent countries, it is not inconsistent to say that he may
that of course violates a principle in International law comply with both. Therefore, even if the revisions were
which is the prohibition against intervention. That’s why perfectly legal in United Kingdom jurisdiction, that fact
the effectiveness of enforcement jurisdiction largely alone does not constitute a bar to the application of
depends on cooperative efforts of states. That’s why we American antitrust law. For this reason, even if the
have an obligation to observe international comity and American Congress intended to write principles of
maintain friendlier relations. You may need somehow a International Comity into the Sherman Act, American
favorable accommodation by some states in some antitrust law may still be applied since again, the fact
instances. that the acts are considered legal in one jurisdiction
does not necessarily constitute a bar to the application
Hartford Fire Insurance Com v. California of the laws of another country affected thereby.
PRINCIPLE: The protective principle is more general

in terms of application than the territoriality principle DBL: Certain insurance companies in London had
since it may be applied to non – criminal cases such as imposed upon insurance companies in the US which
those involving torts. were the beneficiaries of what we call reinsurance
policies. Especially for businessmen where millions are at
FACTS: stake, they would really profile their insurance
companies and one way of doing that is check the ability
19 states and several private complainants lodged a
of that insurance company to pay off insurance
complaint alleging that Hartford Fire Insurance and
obligations. If youre the insurance company, one way of
other London based reinsurers engaged into a grand
having a good profile that you are capable financially of
conspiracy aimed at forcing certain primary insurers to
paying off insurance obligations would be to enter into a
change the terms of their insurance policies in violation
REINSURANCE POLICY. This means, your ability to pay
of the Sherman Act. To briefly explain how to reinsurers
insurance holders is insured pud by another insurance
allegedly committed this grand conspiracy, it is
company. So if di ka kabayad, kana nga risk insured
important to note that primary insurers often buy
also. In this case, insurance companies of United States
insurance for “reinsurers” to cover part of the risk they
obtained reinsurance contracts with Insurance
insure in case of catastrophic losses. Therefore, the
companies in London. Ang buhat man sa London
willingness of these “reinsurers” to do business directly
Insurance companies kay they made PROFORMA
affects the businesses of the primary insurers.
insurance policies ba among the insurance companies sa
Hartford Fire Insurance and other companies took steps US. Okay we can continue with our reinsurance policies
to revise the ISO’s CGL forms in order to include a if you follow this, so ang mga American Insurance
retroactive provision for the “claims made” portion. companies they were forced to adopt the insurance
These moves were said to be violations of Section 1 of policy dictated by London insurance companies that
the Sherman act since it pressured the primary insurers turned out to be UNFRIENDLY to policy holders in the
to the advantage of the reinsurers. The defendants United States. So insurance industry in the US became
argue that the revisions they proposed were perfectly weak, they don’t have a choice. If they will not obey,
legal in United Kingdom jurisdiction. they won’t have reinsurance policies with these London
companies probably ma terminated ang contract so they TERRITORIAL JURISDICTION
were forced to revise their insurance policy.
 Territorial Jurisdiction
According to the US, there was a conspiracy among the - even in the territoriality principle, this will also
insurance companies in London nya naa man anti-trust welcome the possibility of permitting a state to
law called the the SHERMAN ACT, kana kuno nga type of exercise jurisdiction of an act or an offense while
monopoly or conspiracy that will adversely affect the US committed abroad but may have been completed in
economy, the SHERMAN ACT will apply. Of course, the your territory or vice versa.
London companies questioned the claim that the
SHERMAN ACT can be applied to the acts of the A. Subjective territorial principle, there is
insurance companies in London invoking international jurisdiction to prosecute or punish crimes commenced
comity. within their territory but completed in the territory of
another state.
So what did US say about it? There is no prohibition or a
particular law or statute in the United States to be made B. Objective territorial principle, state can exercise
applicable to acts outside the United States if those jurisdiction to offenses committed in another state but
produce substantial effects in the United States. We call (1) consummated or completed within that territory of
it typically as the protective principle, so you noticed the state exercising jurisdiction or (2) producing greatly
that the prescriptive jurisdiction is hardly limited by harmful consequences to their social or economic order
territoriality. There will always be issues on inside their territory.
extraterritorial application of a domestic law.
Example: Mexico vs US, when someone in Mexico fires
CRIMINAL JURISDICTION a gun and hits a person in the US. Mexico could
prosecute under the subjective territorial principle
PRINCIPLES/ THEORIES OF CRIMINAL because the act was commenced in the territory of
JURISDICTION Mexico. US can also invoke territorial jurisdiction under
objective territoriality principle because while act was
commenced in the foreign state, its effects are produced
Of particular importance are the various theories and
in the territory of US. Its been completed in US.
principles in criminal jurisdiction. Criminal jurisdiction is
crossly related to adjudicative jurisdiction and it is hardly International law does not require primacy of
limited by territoriality. jurisdiction in this situation. For example in our domestic
if there is concurrent jurisdiction, we say the first
PRINCIPLES/ THEORIES:
A. Territorial Principle (Subjective vs. Objective) court/tribunal that first exercises jurisdiction will have
B. Nationality Principle (Active vs. Passive) primacy of jurisdiction right? But in international law,
C. Protective Principle (vs. diplomatic protection) there is no international law principle that suggests that
there should be primacy of criminal jurisdiction applying
DBL: This is different from diplomatic protection effective exercise of criminal jurisdiction. So many times
because in diplomatic protection, you bring the case at over, an individual can be prosecuted both in State A
the international level. In protective principle, we are
and also in State B. There is no such thing as double
only talking about the jurisdiction of the court with
respect to acts committed outside the territory and jeopardy, because this is criminal jurisdiction by different
under a narrowly defined conditions. states.
Under protective principle, a state can legislate crimes US v. Vasquez-Velasco

that it considers to be a threat to its security, integrity or
economic interests, regardless of the place of the PRINCIPLE: Under the objective territoriallity
commission of the crime. Common examples include: principle, a state may exercise criminal jurisdiction over
espionage, counterfeiting and terrorism. crimes committed outside its territory when they have
D. Universality Principle (Cf: "erga omnes norms") detrimental effects within said state. Furthermore, it
exercise of jurisdiction may also be justified under the
It is for violation of erga omnes norms.
protective principle, which allows a state to exercise
jurisdiction over crimes committed outside its territory
but nevertheless impinge on its territorial integrity, so that the cartel may further its drug smuggling
security, or political independence. operations.
FACTS: DBL: They were killed because these drug syndicates of

which Velasco was a member, not just suspected but
Javier Vasquez – Velasco, a member of a Narcotics they really thought that these two John Walker and
Cartel based in Guadalajara, was indicted for smuggling Alberto Radelat were drug enforcement agency agents.
10 ounces of heroin and concealing the same. Said They thought they were DEA agents of USA and that’s
cartel was under investigation by the American Drug very crucial in determining whether the US was able to
Enforcement Agency. During trial, it was seen that Javier justify exercise of jurisdiction, criminal jurisdiction. When
was also involved in the murder of John Walker, an he was convicted under US law, Vasquez Velasco argued
American author and Alberto Redalat, an American that US penal laws cannot be applied extraterritorially.
photographer in the La Langosta restaurant, an
establishment in Guadalajara. The narcotics cartel When they mistook the victim as DEA agents then the
mistook them for DEA agents and tortured them until acts of killing were actually acts directed against US
one of them admitted to being a police officer. interest. The US interest referred to here is the policy of
the United States to combat illegal drug trafficking into
May the US courts exercise jurisdiction over the drug the US soil. That’s a serious concern of the government
smuggling charges as well as the two murders which is to prevent and combat trafficking of drugs from
committed in Guadalajara? South American countries. So if you kill a DEA agent,
even if it is in the territory of Mexico. Then that act
HELD:
should be treated as an offense against a US interest. Of
Yes. The US courts may exercise jurisdiction pursuant to course kung random pud to na killing or ordinary murder
the objective territorial principle and the protective its hard to justify it under the objective territorial
principle. The objective territorial principle is that which principle because kung nationality lang ang link, extra
holds that jurisdiction may be asserted over acts territorial application of criminal law using nationality as
performed outside a state’s territory but produces the link is VERY WEAK in international law. I say weak,
detrimental effects with the state. The protective we’re not saying international law prohibits it but it is a
principle is that which holds jurisdiction may be asserted weak link in international law. Meaning it will invite a lot
over foreigners for acts committed outside a state’s of criticism by an international community if ever a state
territory but impinge on the state’s territorial integrity, would invoke that.
security or political independence.
This is based on objective territoriality principle
These principles find application in relation to the drug
Apart from the fact that it happened outside the US
smuggling charges since drug smuggling is a universally
territory, the act has detrimental effects to the US. The
condemned offense, thus it undeniably impinges on the
acts produced gravely harmful consequences to the
US’ territorial integrity security and political
social or economic order inside their territory. It has
independence.
produced harmful effects because the killing was
They also find application in relation to the murder directed against the real agents of DEA particularly and
charges. Even if neither of the victims were in fact DEA such threatened the security, territorial integrity and
agents, the acts of the narcotics cartel were directed political independence of the US.
against the DEA, an American Agency. The murders of
This is also justified under the protective principle
Walker and Redalat were done to further the cartel’s
smuggling activities through intimidating the DEA from The US can lawfully exercise jurisdiction because for US,
enforcing its activities against the cartel’s smuggling an act committed outside the US that may impinge on:
operations. In other words, even if the victims were not
really DEA agents, their murders still impinge on the US’ 1) Territorial security – since this involved an act
territorial integrity, security and political independence directed against DEA, it would affect the efforts of the
since they were carried out against the DEA. The US in combatting drug syndicates.
purpose of the two murders was to intimidate the DEA
2) Political independence of the US – extra-territorial are very conservative. So there are countries that are
application of US penal laws to violent crimes associated bold in exercising jurisdiction, and there are those that
with drug trafficking is reasonable under international are conservative.
law principles.
Don’t forget this very fundamental principle in
Despite the fact the crime in this case did not involve the international law, as announced by the PCIJ in the 1947
murder of an actual or real DEA agent, extra-territorial case of France v. Turkey (Lotus Case), re-echoed in the
jurisdiction is still appropriate because the act is really Advisory Opinion of the ICJ in 1986 on the Legality of
directed against the DEA as an institution. Hence, it is the Threat or Use of Nuclear Weapons, that in
considered an act directed against the US. conventional or customary law prohibiting the particular
conduct of a state, restriction to a state’s sovereignty is
NATIONALITY PRINCIPLE never presumed. Until such time international law
develops a clear standard on jurisdiction, any state can
NATIONALITY PRINCIPLE
actually insist on a particular jurisdiction. Especially for
What is this Nationality Principle? Whose the first two kinds of jurisdiction – prescriptive and
nationality would matter? adjudicative. That’s why I started my discussion with the
notion that these are hardly limited by territoriality,
A. Active Nationality Principle because of that. Not unless the state concerned is a
party to a convention that deals with jurisdiction. In the
In the case of active nationality, as you have read, we
absence of that there is no limit.
look at the nationality of the actor. Active nationality can
be applied in criminal and non-criminal jurisdiction. But this idea of nationality, is it similar to
citizenship? Are we referring to the citizenship of
What is an example of active nationality principle
the person?
in jurisdiction not relating to crime?
A: Nottebohm Case (Liechtenstein vs. Guatemala, ICJ)
The Philippine law for example. We look at the
nationality of the author of the act subject to regulation. Nottebohm Case (Liechtenstein vs. Guatemala,
If the author of the act is a Philippine citizen then we ICJ)
say the law is applicable to him.
Issue is the exercise of diplomatic protection as against
A: In general sense of course, laws affecting status (e.g. the acts of Guatemala.
marriage), tax laws
Q: Did the ICJ, therefore, not recognize the citizenship
The key link is the nationality of the subject of the granted by Lichtenstein to Nottebohm? Did the ICJ say
regulation. So that is active nationality principle. that? Or did the ICJ say instead that what we are
dealing with here is international law?
Is there active nationality principle in our
Philippine penal law? We are dealing here with international law because this
is a diplomatic protection case. Now of course, there is a
A: Article II of the Consti on ambassadors
recognition that any state will have its right,power or
B. Passive Nationality Principle authority, as a sovereign state, to determine who are
really its citizens. So who are citizens of state X? That is
For passive nationality, a state may prescribe law for for state X to determine. There is no international law or
situations where its nationals are victims of the conduct limitation to this sovereign authority of a state to
being regulated. You might want to ask why these rules determine who its citizens are under its own domestic
on nationality are not standardized. What I’m trying to law. But the ICJ said that since this is an international
say is, if you have noticed, a state can actually invoke law dispute, the international law cannot just accept the
whatever theory it can invoke to exercise jurisdiction. grant of citizenship of the state (although recognizing
The US for example, is the number one state is very that sovereign power of the state), as it does not bind
bold in its exercise of extraterritorial jurisdiction. On the international law. International law would require not
other hand, other countries, for example the Philippines,
only citizenship, but also what we call real and effective Hartford Fire Insurance Co. vs. California (1993)
nationality.
So even economic interest, as was shown in Hartford
So in international law, citizenship alone is not sufficient Fire Insurance Co. vs. California (1993), is accepted by
to grant a state the right to grant diplomatic protection. the US. But some countries do not practice that. US
would include economic interest, however, other
The Nottebohm case will have to be discussed in the countries are aware that protective principle has a very
light of diplomatic protection or under the context of narrow application. So definitely, security matters are
diplomatic protection. But this of course illustrates the covered, espionage, falsification provision on documents.
point that the citizenship granted by the state will not
necessarily govern the determination of locus standi in What about the case of Osama Bin Laden? What
diplomatic protection cases. happened there?
So Lichtenstein was not able to convince the ICJ that, US v. Osama Bin Laden (2000)
while Nottebohm was its citizen, it had real and effective
link. PRINCIPLE: “The passive personality principle is
increasingly accepted as applied to terrorists and other
Guatemala has referred to well established principles of organized attacks on a state’s nationals by reason of
international law that it is the bond of nationality their nationality, or to assassination of a state’s
between the state which alone confers upon a state the diplomatic representatives or other officials”
right of diplomatic protection.
FACTS:
PROTECTIVE PRINCIPLE
Defendants were indicted with fifteen defendants with
PROTECTIVE PRINCIPLE conspiracy to murder United States nationals, to use
weapons of mass destruction against United States
What is this protective principle? nationals, to destroy United States buildings and
property, and to destroy United States defense utilities.
A state can legislate crimes that it considers to be a
threat to its security, integrity or economic interests The Indictment also charges defendants Mohamed
regardless of the place of the commission of the crime. SadeekOdeh, Mohamed RashedDaoud al-’Owhali, and
KhalfanKhamis Mohamed, among others, with numerous
If you are to use the term “economic interests”, that is
crimes in connection with the August 1998 bombings of
actually referring to the way the US defines protective
the United States Embassies in Nairobi, Kenya, and Dar
principle. Restatement 402 of the US restatement on
es Salaam, Tanzania, including 223 counts of murder.
foreign relations, would admit economic relations
because of the way they understood protective principle. The Indictment also charges defendant Wadih el Hage
with numerous perjury and false statement counts. Six
Restatement 402:
of the Defendants are presently in the custody of the
A state has jurisdiction to prescribe the law with respect Bureau of Prisons: Mamdouh Mahmud Salim, Ali
to certain conduct outside its territory by persons not its Mohamed, Wadih El Hage, Mohamed RashedDaoud Al-
nationals that is directed against the security of the state Owhali, KhalfanKhamis Mohamed, and Mohamed
or against a limited class of other state interest. SadeekOdeh (“Odeh”).
As a common law country, it is really expected to come Presently before the Court is Odeh’s Motion to Dismiss
up with such principle “and other state interest” because Counts 5-244 for Lack of Jurisdiction, in which the other
policy makers would want the court instead to develop defendants join.
that particular principle rather than put it in a sort of
Issue: May the US courts (national courts) exercise
box-like definition. That is very typical of a common law
jurisdiction over the case?
country.

HELD:
UNIVERSALITY PRINCIPLE
The objective territoriality principle provides that a state
has jurisdiction to prescribe law with respect to “conduct
outside its territory that has or is intended to have UNIVERSALITY PRINCIPLE
substantial effect within its territory.” Restatement The
Attorney General of Government of Israel v.
protective principle provides that a state has jurisdiction
Eichmann (1961)
to prescribe law with respect to “certain conduct outside
its territory by persons not its nationals that is directed PRINCIPLE: Jurisdiction over an individual is not
against the security of the state or against a limited class voided by the illegality of his arrest.
of other state interests.”
FACTS:
The nationality principle provides that a state has
jurisdiction to prescribe law with respect to “the Eichmann, a German nationality, was the Head of the
activities, interests, status, or relations of its nationals Jewish Office of the German Gestapo. He was the
outside as well as within its territory.” administrator in charge of the policy that led to the
extermination of between 4,200,000 and 4,600,000 Jews
The passive personality principle provides that “a state in Europe from 1941-1942.
may apply law — particularly criminal law — to an act
committed outside its territory by a person not its Eichmann was found in Argentina in 1960 by persons
national where the victim of the act was its national.” who were probably agents of the Israeli Government
The universality principle provides that - “[a] state has and abducted to Israel without the knowledge of the
jurisdiction to define and prescribe punishment for Argentinean Government. There he was prosecuted for
certain offenses recognized by the community of nations war crimes, crimes against the Jewish people, the
as of universal concern, such as piracy, slave trade, definition of which was modelled upon the definition of
attacks on or hijacking of aircraft, genocide, war crimes, genocide in the Genocide Convention of 1948, and
and perhaps certain acts of terrorism,” regardless of the crimes against humanity. He was convicted and
location of their occurrence. Id. § 404 sentenced to death. His appeal to the Supreme Court of
Israel was dismissed. After the kidnapping of Eichmann
The court ruled that US had jurisdiction over the case, from its territory, Argentina had lodged a complaint with
justified through universality principle and passive the Security Council of the United Nations claiming that
personality principle. Quoted portions from the case of the act constituted a violation of its sovereignty and had
US v Bowman, US v Vasquez - Velasco. requested appropriate reparation, namely the return of
Eichmann.
DBL: Certain bombings in Kenya resulted in the damage
to US embassies and injuries to American nationals. So Is the trial of the accused in Israel following his
the act of terrorism was committed in Kenya, meaning kidnapping in Argentina in conflict with international law
outside of the US; however, the acts were directed and does it takes away the jurisdiction of the Israeli
against the government institutions of the US. court?
So when Osama Bin Laden questioned the jurisdiction of HELD:

the US court over the bombings in Kenya, of course you
expect the US court to exercise protective principle. This The Security Council of the United Nations decided that
is a clear example fof protective principle. Of course, the abduction of Eichmann was a clear violation of the
since American nationals were also victims, the US also Argentinean territorial sovereignty and was a violation of
justified its jurisdiction using the passive nationality international law. Under general international law, the
principle. territorial integrity of sovereign states is inviolable. If a
state, acting through an organ the actions of which are
attributable to it, purports to exercise powers in the
territory of another state without the latter's consent, it
commits an international tort.

BUT it was rendered moot when a joint decision of the Pinochet Case
Governments of Argentina and Israel “cured” the
international tort committed by Israel when it entered Pinochet was a former dictator of Chile. He allegedly
Argentinian territory to abduct the Eichmann. tortured Spaniards in Chile. When he was in UK for
medical purpose or treatment, he was served an
Further, the jurisdiction of Israel is not negated by the international warrant of arrest and was brought to Spain
manner in which Eichmann was brought before the for prosecution. There was a question whether Spain
Court. It is an established rule of law that a person could justify its jurisdiction over the acts of torture
standing trial for an offence against the laws of a State committed by Pinochet in Chile.
may not oppose his being tried by reason of the illegality
of his arrest or the means by which he was brought to Spain justified its jurisdiction justified its jurisdiction
the jurisdiction of the court . This rule applies equally in based on the universality principle, because it is actually
cases where the accused is relying on violations of erga omnes to prosecute torture. And there was also a
international, rather than domestic, law. reliance on passive nationality because the victims were
Spanish nationals. Territoriality was of course weak
Note: The only reasonable argument for the Israeli because the act was committed in Chile and not in
court seems to be on the basis of universal jurisdiction Spain. Active nationality was not proper because
because the crimes with which Eichmann was charged Pinochet was not a Spanish citizen, and because there
were war crimes, genocide, and crimes against was no threat to Spain’s national security, in so far as
humanity. torture is concerned.
The court mentioned that the “crimes dealt with in this EXTRADITION
case are not crimes under Israeli law alone, but are in
essence offences against the law of nations. Indeed, the RENDITION
crimes in question are not a free creation of the
EXTRADITION
legislator who enacted the law for the punishment of
Nazis and Nazi collaborators, but have been stated and Extradition is just one of the three methods of rendition.
defined in that law according to a precise pattern of Extradition is basically one of the legal and legitimate
international laws and conventions which define crimes ways to complete rendition.
under the law of nations.”
Rendition
DBL: Of course, almost everyone knows the acts of
atrocities by the German Hitler regime in Germany. After Rendition in international law refers to the delivery of
the creation of the special courts to go after Hitler, his an individual from one state to another or surrendering if
generals scattered all over the world. Eichmann was applicable to persons.
hiding in Argentina. Argentina, apparently
Three modes of rendition in international law:
uncooperative, did not turn over or arrest Eichmann. He
was kidnapped in Argentina and forcibly brought to 1. Extradition  
Israel. He was prosecuted for violating a domestic law in 2. Deportation  
Israel for an act committed outside. 3. Abduction of foreign nationals aboard (this is
controversial)  
There were two justifications:
In deportation of course, there is no guarantee that the
1) Passive nationality principle
person being deported will really reach the territory of
2) Universal character of the crime – genocide; there
was an erga omnes obligation to prosecute the state interested in prosecuting him.
In one bar exam, the question was distinguish

extradition and deportation. You can give at least two
distinctions. First, deportation does not require a treaty.
Second, it is just a unilateral act of a State to invoke a
ground for purposes of deporting an alien. There is no

requirement of a treaty. The third one, if you can go - Dual purposes of prosecution and execution.
further in distinguishing, the destination of the deportee
is never assumed. It is just expelling a person. Whether
- Incidentally because of the value of the freedom of
that person will go to state A or B, there is no obligation
expression, in fact the International Human Rights
because it is just deportation. With respect to Court, has given a higher value to freedom of
extradition, it is not a unilateral act as it is in fact a expression, extradition could not cover political
bilateral one. It is based on a treaty. And the requesting offenses because it will run counter to the principle
state would be entitled to the custody of the person of asylum. Normally, extradition treaties will provide
subject of the request. for what is known as an “attenat clause” in an
extradition treaty. Attentat Clause is usually found
The third method is, of course, controversial. It involves in an extradition treaty. Parties will agree that since
the abduction of an individual. The first two, are extradition treaty should not cover political
offenses, they would provide there a reservation in
however, settled.
a way, that the mere killing or assassination of a
head of state/government should not be necessarily
What are the conditions of extradition?
or automatically considered political offense. It
would be a political offense if it was pursuant to
A: The duty to deliver an accused person to the custody
rebellion. But if it was pure murder pursuant to
of the requesting state via extradition can only be done rebellion, then the person may still be extradited as
if there is an (1) extradition treaty. It is a purely treaty it is not a political offense.
based obligation. There is no CIL regarding this
obligation. - “Rule of Specialty” must be followed. What is this?
Extradition process begins with a request, and the
Then part of the nature of extradition proceedings is request will indicate the offense upon which the
that, (2) the person being extradited must have been request is being made. If the request is for the
charged or convicted of an extraditable offense. One crime of murder, the principle of fairness also
readily available principle in international law is the mandates and requires, that when the other state
obliges as a result of the extradition treaty, then the
principle of fairness or good faith. So, it is not fair for the
person subject of extradition should be prosecuted
state to extradite a person who has not been charged or only for murder. It cannot be that the request was
convicted of an extraditable offense. for murder and then the person requested, upon
reaching the territory of the requesting states, will
As you will see later on, offenses are either extraditable be prosecuted for rape. As I’ve said, international
or non-extraditable – this would depend on the treaty. law also depends on the good faith of states.
So the third condition requires that (3) the offense must

be extraditable. In order to make an offense extraditable - Ex-post facto law prohibition does not apply. The
is to make the offense one of the listed extraditable principle of legality is found in common law. In civil
offenses, or the treaty can provide for what is usually law, we have nullum crimen nulla pine sine lege,
meaning there is no crime if there is no law
called the “dual criminality clause”. States A and B
punishing it. The way to observe such principle of
may agree in the treaty of extradition, that any other legality, meaning a crime can only be considered a
offense that is not listed as an extraditable offense in the crime when there is a law punishing it. We cannot
treaty may still be subject to an extradition request permit a later law to be made applicable to an act
provided that the offense is punished by both states. when performed was not yet considered a crime.
This is the most sound argument forwarded by
Common principles regarding extradition: Hitler during the Nuremburg trial. But ex-post facto
law presupposes that the law is a penal law.
- No treaty, no obligation to extradite.
- Pacta sunt servanda applies. This means that if The problem is usually this: X committed the crime
there is such a treaty-based obligation, refusal to of ____ and he went to the territory of state A. He
comply with the obligation becomes an IWA in committed the crime in 2010. Realizing that state A
violation of pacta sunt servanda. and state B, the state where X came from, they
made an extradition treaty. In 2016

HELD:
Question: Can X be extradited for a crime he
committed in 2010 when there was no extradition While the United States Supreme Court conceded that
treaty yet? Ker had been kidnapped, it held that the purpose of due
process lay in fair trials, and that an illegal abduction
Answer: Extradition treaty is not a penal law. So, would not preclude jurisdiction so long as the
ex-post facto law cannot be applied. indictment was proper and a fair trial ensued.
ABDUCTION FRISBIE v. Collins, 342 U.S. 519 (1952)
PRINCIPLE: same as Kerr

ABDUCTION
FACTS:
What is the justification of the term male captus,
Collins was in jail for murder. He alleges that while he
bene detentus? Do you think it’s a fair principle?
was living in Chicago, police officers from Michigan
In other words, the court will still acquires
forcibly seized, handcuffed, blackjacked and brought him
jurisdiction over the person wrongfully detained?
to Michigan. The Respondent argued that this conduct
Note: Enforcement jurisdiction always runs counter to violated the Fourteenth Amendment Due Process Clause
principle of prohibition against intervention. The moment and the Federal Kidnapping Act.
tou send your police personnel to the foreign state
Note: Michigan & Chicago are different States which
without its permission, that is automatically intervention.
exercise different jurisdictions; therefore, this is a
A:Ker-Frisbie doctrine domestic use of the Ker-Frisbie Doctrine.
KER v. Illinois, 119 U.S. 436 (1886) HELD:
PRINCIPLE: “[t]his Court has never departed from the rule

announced in [Ker v. Illinois], that the power of a court
Illegal abduction does not invalidate jurisdiction for as to try a person for crime is not impaired by the fact that
long as he the accused receives proper and fair trial he had been brought within the court’s jurisdiction by
respecting his right to due process of law. reason of a ‘forcible abduction.’ ”
FACTS: “There is nothing in the Constitution that requires a

court to permit a guilty person rightfully convicted to
Ker was wanted in Illinois for embezzling money from a escape justice because he was brought to trial against
Chicago bank. The bank discovered that Ker (a US his will.”
citizen) was living in Peru, obtained the necessary
extradition papers, and hired a Pinkerton agent named DBL: It all boiled down to the question of due process.
Julian to accept Ker from the Peruvian Government and But the moment the accused is brought to court, the
transport him back to Chicago. But Chilean forces notion of due process is still observed (the right to
occupied Lima at that time, and the Peruvian counsel, to present evidence, and such other rights of
Government was in exile. Formal extradition proceedings the accused).
were therefore difficult and Julian "without presenting
[the papers] to any officer of the Peruvian government, There is nothing wrong with illegal abduction or arrest
or making any demand on that government for the because the moment the person is brought to court
surrender of Ker, forcibly and with violence arrested Ker. anyway, he is given the right to due process. Is this
He then transported Ker back to US soil. right? Can you think of another justification? Forget
about due process.
Ker objected to his prosecution in the United States on
the ground that his right to due process had been A: The illegality of the arrest is never imputed to the
violated by the illegal arrest. Court. Who arrests? Law enforcement agencies. As such,
it does not affect the jurisdiction of the court. The act of
the arresting authority is executive in nature, not if it can be proven that neither party intended to prohibit
judicial. such.
Take note of the two reasons given: FACTS:
1. It cannot deprive the jurisdiction of the court Machain, is a citizen and resident of Mexico. He was
because the argument that it affects due indicted for participating in the kidnap and murder of US
process is not really a sound argument in this DEA special agent Salazar and a Mexican pilot. The
regard. When we speak of due process, we refer D.E.A. believes that Machain, a medical doctor,
to a procedure in court. And where when the participated in the murder by prolonging agent Salazar's
accuse is already in the custody of the court, the life so that others could further torture and interrogate
court still grants the accuse all rights that he him.
deserves. All rights pertinent to due process. So
if this rights are still observed, so a claim of On April 2, 1990, Machain was forcibly kidnapped from
denial of due process would not be a valid claim his medical office in Guadalajara, Mexico, to be flown by
because due process is really observed. private plane to El Paso, Tex., where he was arrested by
2. It shouldn’t affect the jurisdiction of the court D.E.A. officials. The District Court concluded that D.E.A.
because the court actually has no participation agents were responsible for respondent's abduction,
and therefore, the illegality of the arrest should although they were not personally involved in it.
not affect the jurisdiction of the court. Because
By contending that his abduction violated a U.S.-Mexico
the officers making the arrest are not officers of
extradition treaty, Machain sought to dismiss the
the court. But these are actually law officers
indictment. Further, at trial, Alvarez alleged that during
pertaining to the executive department.
his captivity he was beaten, drugged, and shocked on
Attorney General of Government of Israel v. the soles of his feet with an electrical apparatus
Eichmann (1961)
HELD:
DBL: One argument here was Israel could not have
The Court ruled that Alvarez, regardless of the way in
jurisdiction over the person of Eichmann because he was
which his custody had been obtained, could be tried by
illegally abducted in Argentina. Again, male captus, bene
American courts.
detentus. Illegality of the arrest will not affect the
jurisdiction of the court. The Court notes that “there is no express promise by
either party to refrain from forcible abductions in the
Ker-Frisbie v. Collins (1952) ; Ker v. Illinois
territory of the other nation. Relying on that omission,
(1886)
the Court, in effect, concludes that the treaty merely
The power of a court to try a person in a case is not creates an optional method of obtaining jurisdiction over
impaired by the fact that they have been brought before alleged offenders, and that the parties silently reserved
the court by a forcible abduction. There is nothing in the the right to resort to self-help whenever they deem force
US constitution that requires a court to permit a guilty more expeditious than legal process. If the United
person to escape justice because he was brought to States, for example, thought it more expedient to torture
court through forcible abduction. or simply to execute a person rather than to attempt
extradition, these options would be equally available
This is the same with US v. Alvarez-Machain. because they, too, were not explicitly prohibited by the
treaty.”
US v. Alvarez-Machain
After finding that the abduction did not fall within the
PRINCIPLE: purview of the extradition treaty, the Court concluded
that, absent an applicable treaty limitation, the
Abduction does not invalidate jurisdiction. This is further
prerogative for the undertaking fell solely within the
bolstered by the lack of express provision in the
constitutional domain of the Executive.
extradition treaty between the two countries, especially

Note: EXCEPTION TO THE GENERAL RULE:
In reaching this decision, the Court ignored or rejected a US v. Toscanino

number of legal principles thought by many to preclude
or limit the reach of the United States in its actions Toscanino was abducted in Uruguay and taken to Brazil
abroad. Particularly, by effectively vindicating the and for 17 days he was subjected to brutal torture.
conduct of the Executive branch in this case, the Where the illegality of arrest has been accompanied with
Supreme Court announced that neither the Due Process brutality, torture or other outrageous conduct that the
Clause of the Fifth Amendment nor international treaties, arrest had been done in a manner that is so shocking to
outside of a very narrow, literal construction, limit the the conscience, due process requires that the district
power of the Executive in the extraterritorial court divests itself of its jurisdiction. So this affects due
enforcement of criminal justice. Even more significantly, process. The illegality of the arrest will not affect due
the Court refused to recognize fundamental, normative process but the brutality and torture will affect due
principles of customary international law, either directly process.
or through the medium of the extradition treaty.
There’s a good explanation to the paradigm shift in the
DBL: Mexico, however, made a strong argument that case of the US court on the matter. You noted in the
there was an extradition treaty. Why then did the US past, under the old traditional PIL, most norms are
abduct Alvarez? The US said that there is no created are basically pertaining to the state. That’s why
international law principle that precludes abduction of a our observation had been traditional PIL had been state-
criminal just because there is an extradition treaty. centered. But modern IL is now individual-centered kind
Further, Mexico was fully aware of the US practice of of IL. And so, especially in the advent of the Universal
abducting criminals. By the time the treaty was entered Declaration of Human Rights and the 2 covenants on
into, there should have been a provision on abducting civil and political rights and economic, cultural and social
criminals. Go back to the Lotus case, in the absence of a rights. Rights of individuals had been given attention
clear conventional or CIL, a restriction on sovereignty of now by the international committee. And so to the
a state should not be presumed. extent of this kind of illegal arrest violates the very
dignity of the accused individual, then it violates due
In 1974 though, this was already the beginning of the process.
recognition of the international community of the need
to value human rights and human dignity in general. “We view due process as now requiring a court to divest
Because of this, the perspective of the international itself of jurisdiction over the person of the defendant
community has been changed. Because of this where it has been acquired as the result of the
recognition, when abduction has been accompanied with government’s deliberate, unnecessary and unreasonable
torture or outrageous conduct that are so shocking to invasion of the accused’s constitutional rights.”
the conscience, the court cannot just close its eyes of
This is an exception to the Ker-Frisbee doctrine as it is
the fact, and it will require that it divest itself of
known in the US or also known as male captus bene
jurisdiction.
detentus in PIL.
As such, the principle of male captus, bene detentusis
US ex rel. Lujan v. Gengler
not absolute. However, the illegality of abduction alone
does not affect the jurisdiction of the court. In the same year though, the US clarified in this case the
exception in Toscanino. Here there was also a
Justice Mansfield: We view due process as now requiring
government sponsored abduction, a prolonged
a court to divest itself of jurisdiction over the person of
interrogation and detention but according to the court,
the defendant if it has been acquired as a result of
that was the worst part of the illegality of the arrest.
government’s deliberate, unnecessary and unreasonable
Prolonged detention and interrogation but never been
invasion of the accused person’s constitutional rights.
similar conduct that in the case of Toscanino. No torture
The court is now an active court, not anymore passive.
or brutality or outrageous conduct according to the
court. The worst done was that the accused was
blindfolded the whole time.
The conduct has to be so shocking to violate due Let’s talk about Singapore. They operate Singapore
process. airline. So the international committee adapted to these
new undertakings of states, thereby establishing the
IMMUNITY FROM JURISDICTION restrictive theory of state immunity.
In the Philippines, we have situations involving foreign

DOCTRINE OF QUALIFIED IMMUNITY
court. These had been considered jure imperii, lease of
Doctrine of Qualified Immunity an apartment building by foreign government for the use
(Restrictive Theory of State Immunity) of military officers. Conduct of public bidding for the
repair of a wharf at the US naval station.
The principle of state immunity from suit may be The idea was that although it was a repair of a wharf,
discussed in the context of immunity of a particular state the wharf was used by the US naval station so the
from suit within its territory and immunity of states from activity of the public bidding was governmental.
suit in the territory of another.
Acts Jure gestionis (Private)
In IL, we always speak of the immunity of a state in the 1. The hiring of a cook in the recreation center,
territory of another. We’re talking here of a situation consisting of 2 restaurants, a cafeteria, bakery,
a store and a coffee and pastry shop at the John
where a state is sued in the forum in the court of
Hay Air Station in Baguio City to cater to
another state. We’re not talking about of a situation American servicemen and the general public
where a case is filed in the RTC of Cebu against the 2. The bidding for the operation of barber shops in
Philippine state. That pertains to Consti 1. If we’re the Clark Air Base in Angeles City
talking about filing a case in the RTC in Cebu against the
US, then that becomes IL state immunity discussion. We Verlinden v. Central Bank of Nigeria
focus on that only.
PRINCIPLE: The restrictive theory of sovereign
The reason as you already learned, co-equality of states immunity is confined to suits involving jure imperii
Par en parem non habet imperium comes into play. No (sovereign acts) and not jure gestonis (proprietary acts).
state can exercise jurisdiction over another state. The
FACTS:
states being co-equal.
A contract between the Federal Republic of Nigeria and
That principle is customary international law. However,
petitioner Dutch corporation for the purchase of cement
while in the past, the principle of state immunity had
by Nigeria provided that Nigeria was to establish a
been absolute. Meaning it can be invoked by a state
confirmed letter of credit for the purchase price.
regardless of the function or act involved, modern IL has
Subsequently, petitioner sued respondent bank, an
adopted the restrictive theory of state immunity.
instrumentality of Nigeria, in Federal District Court,
There is now a need to distinguish between
alleging that certain actions by respondent constituted
governmental also known as public functions v.
an anticipatory breach of the letter of credit. Petitioner
Proprietary or private functions.
alleged jurisdiction under the provision of the Foreign
We distinguish between jure imperii and jure gestionis. Sovereign Immunities Act of 1976 (Act), 28 U.S.C. §
That we make such a distinction now is CIL. Not just 1330(a), granting federal district courts jurisdiction
state immunity is CIL but the doctrine that we restrict it, without regard to the amount in controversy of
the application of governmental acts is also CIL.
"any nonjury civil action against
The distinction (as you read in your textbook) is also for a foreign state . . . as to any
the int’l court to respond to the needs of the state. IN claim for relief in personam with
the past, most acts of the state had been governmental respect to which the foreign state
or public, now a days, states have already engaged in is not entitled to immunity either
activities that used to be the domain of private under sections 1605-1607 of this
individuals or entities. title or under any applicable
international agreement."
The District Court, while holding that the Act permitted jurisdiction under the Act to actions brought by American
actions by foreign plaintiffs, dismissed the action on the citizens.
ground that none of the exceptions to sovereign
immunity specified in the Act applied. The Court of 3. Congress did not exceed the scope of Art. III by
Appeals affirmed, but on the ground that the Act granting federal district courts subject matter jurisdiction
exceeded the scope of Art. III of the Constitution, which over certain civil actions by foreign plaintiffs against
provides, in part, that the judicial power of the United foreign sovereigns where the rule of decision may be
States shall extend to "all Cases . . . arising under [the] provided by state law. While the Diversity Clause of
Constitution, the Laws of the United States, and Treaties Art. III (i.e. the judicial power extends to controversies
made . . . under their Authority," and to "Controversies . between "a State, or the Citizens thereof, and foreign
. . between a State, or the Citizens thereof, and foreign States," covers actions by citizens of States. Yet diversity
States, Citizens, or Subjects." The court held that neither jurisdiction is not sufficiently broad to support a grant of
the Diversity Clause nor the "Arising Under" Clause of jurisdiction over actions by foreign plaintiffs, since a
Art. III is broad enough to support jurisdiction over foreign plaintiff is not "a State, or [a] Citize[n] thereof.")
actions by foreign plaintiffs against foreign sovereigns. is not broad enough to support such subject matter
jurisdiction, the "Arising Under" Clause(i.e. Congress
HELD: may confer on the federal courts jurisdiction over any
case or controversy that might call for the application of
1. For the most part, the Act codifies, as a matter of federal law)is an appropriate basis for the statutory
federal law, the restrictive theory of foreign sovereign grant of jurisdiction. In enacting the Act, Congress
immunity under which immunity is confined to suits expressly exercised its power to regulate foreign
involving the foreign sovereign's public acts, and does commerce, along with other specified Art. I powers. The
not extend to cases arising out of its strictly commercial Act does not merely concern access to the federal
acts. If one of the specified exceptions to sovereign courts, but rather governs the types of actions for which
immunity applies, a federal district court may exercise foreign sovereigns may be held liable in a federal court
subject matter jurisdiction under § 1330(a), but if the and codifies the standards governing foreign sovereign
claim does not fall within one of the exceptions, the immunity as an aspect of substantive federal law. Thus,
court lacks such jurisdiction. a suit against a foreign state under the Act necessarily
involves application of a comprehensive body of
For the most part, the Act codifies, as a matter of
substantive federal law, and hence "arises under" federal
federal law, the restrictive theory of sovereign immunity.
law within the meaning of Art. III.
A foreign state is normally immune from the jurisdiction
of federal and state courts, 28 U.S.C. § 1604, subject to 4. Since the Court of Appeal, in affirming the District
a set of exceptions specified in §§ 1605 and 1607. Those Court, did not find it necessary to address the statutory
exceptions include actions in which the foreign state has question of whether the present action fell within any
explicitly or impliedly waived its immunity, § 1605(a)(1), specified exception to foreign sovereign immunity, the
and actions based upon commercial activities of the court on remand must consider whether jurisdiction
foreign sovereign carried on in the United States or exists under the Act itself.
causing a direct effect in the United States, §
1605(a)(2). [Footnote 11] When one of these or the DBL: Verlinden was a contractor of cement. Nigeria, the
other specified exceptions applies, "the foreign state government purchased a cement from Verlinden. So a
shall be liable in the same manner and to the same letter of credit was established in a bank to assure that
extent as a private individual under like circumstances," the moment the goods are delivered to the port of
destination, then the letter of credit will assure the
2. On its face, 1330(a) allows a foreign plaintiff to sue a payment. Central Bank of Nigeria who issued the letter
foreign sovereign in federal court provided the of credit, it refused to honor the transaction. So
substantive requirements of the Act are satisfied. The Verlinden sued the Central Bank. And you know when
Act contains no indication of any limitation based on the you sue an instrumentality of a government, easily that
plaintiff's citizenship. And, when considered as a whole, will require the national government to satisfy the
the legislative history reveals an intent not to limit judgment in the form of money. Easily this is a suit

against the state scenario. But was the invocation of They sought damages, and appealed against an order
state immunity by the Central Bank, or rather the denying jurisdiction over the defendants. They said that
government of Nigeria, in the territory of the US upheld? the allegation of torture allowed an exception to state
immunity.
US Court said no, the case was dismissed on the basis of
state immunity. That even though they are suing the HELD:
central bank of Nigeria, the transaction however was
commercial. The restrictive theory of foreign sovereign The Kingdom’s appeal succeeded.
immunity under which immunity is confined to suits
1. The protection of state immunity was essentially a
involving (something) of its acts, public act does not
procedural one. It was not a matter where the court had
extend to cases arising out of strictly commercial acts.
a choice, and the Court of Appeal had been wrong to
So in this case, the purchase of cement apparently was
take to itself any discretion. Torture cannot be justified
considered commercial.
by any rule of domestic or international law, but the
Jones v. Minister of Interior of Saudi Arabia question at issue was whether such a norm conflicts with
a rule which accords state immunity: ‘The jus cogens is
PRINCIPLE: The protection of state immunity is the prohibition on torture. But the United Kingdom, in
essentially procedural. Filing a suit for damages against according state immunity to the Kingdom, is not
its agent performing jure imperii cannot circumvent this. proposing to torture anyone. Nor is the Kingdom, in
claiming immunity, justifying the use of torture. It is
FACTS: objecting in limine to the jurisdiction of the English court
to decide whether it used torture or not.’
The claimants said that they had been tortured by Saudi
police when arrested on false charges. The International Court of Justice has made plain that
breach of a jus cogens norm of international law does
On 6 June 2002 Mr. Jones, the claimant in the first
not suffice to confer jurisdiction. In Congo v. Rwanda,
action giving rise to this appeal, issued High Court
the ICJ said,
proceedings against two defendants: the Ministry of
Interior of the Kingdom of Saudi Arabia (“the Kingdom”), “State immunity is a procedural rule going to the
which (it is accepted) is for present purposes the jurisdiction of a national court. It does not go to
Kingdom itself; and Lieutenant Colonel Abdul Aziz, sued substantive law; it does not contradict a
as servant or agent of the Kingdom. He claimed prohibition contained in a jus cogens norm but
aggravated and exemplary damages for assault and merely diverts any breach of it to a different
battery, trespass to the person, false imprisonment and method of settlement. Arguably, then, there is
torture in the Kingdom between March and May 2001. no substantive content in the procedural plea of
State immunity upon which a jus cogens
Messrs Mitchell, Sampson and Walker are the claimants
mandate can bite.”
in the second action giving rise to this appeal. They
issued High Court proceedings on 12 February 2004 2. A state is not criminally responsible in international or
against four defendants. The first two defendants were English law, and therefore cannot be directly impleaded
sued as officers in the Kingdom’s police force. The third in criminal proceedings. The prosecution of a servant or
defendant was sued as a colonel in the Ministry of agent for an act of torture within article 1 of the Torture
Interior of the Kingdom and deputy governor of a prison Convention is founded on an express exception from the
in which the claimants were confined. The fourth general rule of immunity. It is, however, clear that a civil
defendant was sued as head of the Ministry of Interior. action against individual torturers based on acts of
They claimed aggravated damages for assault and official torture does indirectly implead the state since
negligence, contending that they had been subjected to their acts are attributable to it. Were these claims
torture by the first two defendants, which the third and against the individual defendants to proceed and be
fourth defendants had caused or permitted or upheld, the interests of the Kingdom would be obviously
negligently failed to prevent. affected, even though it is not a named party.

Part I of the 1978 Act was not disproportionate as And because it was just a civil proceeding for damages,
inconsistent with a peremptory norm or iuscogens of state immunity was still an appropriate defense on the
international law and its application did not infringe the part of the government.
claimants’ rights under article 6 of the ECHR.
Saudi Arabia v. Nelson
3. Lord Bingham said: ‘. . the claimants must show that
the restriction is not directed to a legitimate objective PRINCIPLE: A foreign state's exercise of the alleged
and is disproportionate. They seek to do so by abuses of power has long been understood for purposes
submitting that the grant of immunity to the Kingdom on of the restrictive theory as peculiarly sovereign in nature.
behalf of itself or its servants would be inconsistent with
FACTS:
a peremptory norm of international law, a jus cogens
applicable erga omnes and superior in effect to other The respondents Nelson, a married couple, filed this
rules of international law, which requires that the action for damages against petitioners, the Kingdom of
practice of torture should be suppressed and the victims Saudi Arabia, a Saudi hospital, and the hospital's
of torture compensated . There is no evidence that purchasing agent in the United States. They alleged,
states have recognized or given effect to an international among other things, that respondent husband (he was a
law obligation to exercise universal jurisdiction over monitoring systems engineer) suffered personal injuries
claims arising from alleged breaches of peremptory as a result of the Saudi Government's unlawful detention
norms of international law, nor is there any consensus of and torture of him and petitioners' negligent failure to
judicial and learned opinion that they should. This is warn him of the possibility of severe retaliatory action if
significant, since these are sources of international law. he attempted to report on the job hazards (i.e.
But this lack of evidence is not neutral: since the rule on discovered safety defects in the Hospital's oxygen and
immunity is well-understood and established, and no nitrous oxide lines that posed fire hazards and otherwise
relevant exception is generally accepted, the rule endangered patients' lives.) The Nelsons asserted
prevails.’ jurisdiction under the Foreign Sovereign Immunities Act
of 1976, 28 U.S.C. § 1605(a)(2), which confers
4. Lord Hoffmann said: ‘But the same approach cannot
jurisdiction where an action is "based upon a commercial
be adopted in international law, which is based upon the
activity carried on in the United States by the foreign
common consent of nations. It is not for a national court
state." The District Court dismissed for lack of subject
to ‘develop’ international law by unilaterally adopting a
matter jurisdiction. The Court of Appeals reversed,
version of that law which, however desirable, forward-
concluding that respondent husband's recruitment and
looking and reflective of values it may be, is simply not
hiring were "commercial activities" upon which the
accepted by other states.’
Nelsons' action was "based" for purposes of
DBL: This involves several individuals, British individuals §1605(a)(2).
who had been subjected to torture in Saudi Arabia. One
HELD:
had been detained for 67 days without trial. Of course
eventually, he was released but after prolonged The Nelsons' action is not "based upon a commercial
detention, subject to torture and starvation. When they activity" within the meaning of the first clause of
reached UK, they sued the Minister of Saudi Arabia for §1605(a)(2), and the Act therefore confers no
the torture conducted by officers of Saudi Arabian jurisdiction over their suit.
government. There was an invocation of state immunity.
The counter-argument was, just like in Pinochet, acts of (a) This action is not "based upon" a commercial
torture cannot be protected by immunity from suit by a activity.The Act defines such activity as "commercial
head of state. But according to the court, since the case activity carried on by such state and having substantial
was not under the torture convention or that it was not contact with the United States," §1603(e), and provides
a criminal case but only for damages. The court that a commercial activity may be "either a regular
said that there is no sufficient evidence of state practice course of commercial conduct or a particular commercial
that leads to the conclusion that in cases of torture, a transaction or act," the "commercial character of [which]
state would not enjoy immunity from civil proceedings. shall be determined by reference to" its "nature," rather
than its "purpose." Although the Act does not define
"based upon," the phrase is most naturally read to mean sanitary issues so he voiced it out. He was kidnapped
those elements of a claim that, if proven, would entitle a and tortured by police. This is an important case
plaintiff to relief under his theory of the case, and the because the US court because they adopted the test
statutory context confirms that the phrase requires called nature of the conduct test. This is one of the
something more than a mere connection with, or tests we conduct to determine if an act is jure imperii or
relation to, commercial activity. Even taking the Nelsons' jure gestionis. One is nature and the other is purpose.
allegations about respondent husband's recruitment and And in the 2004 UN Convention, it gives primacy to
employment as true, those facts alone entitle the nature but does not disregard purpose.
Nelsons to nothing under their theory of the case. While
these arguably commercial activities may have led to the So what is reflected in the UN convention is being
commission of the torts that allegedly injured the practiced by the US. The conduct was not commercial as
Nelsons, it is only those torts upon which their action is the powers allegedly abused were those of police and
"based" for purposes of the Act. penal officers. Since torture is a governmental order.
(b) Petitioners' tortious conduct fails to qualify The first argument was that the activity involved was the
as "commercial activity" within the meaning of the Act. hospital, a private entity but the court did not uphold
This Court has ruled that the Act largely codifies the so this since they said the basis for the case filed was the
called "restrictive" theory of foreign sovereign immunity, torture, not that he was employed in the hospital. So it
Republic of Argentina v. Weltover, Inc., and that a state was not the nature of the operation of the hospital that
engages in commercial activity under that theory where was crucial but the act of torture against Nelson.
it exercises only those powers that can also be exercised
Argentine Republic v. Amerada Hess Shipping
by private citizens, rather than those powers peculiar to
Corp
sovereigns, id., at ___. The intentional conduct alleged
here (the Saudi Government's wrongful arrest, PRINCIPLE: A foreign state cannot waive its immunity
imprisonment, and torture of Nelson) boils down to by signing an international agreement that does not
abuse of the power of the police. However monstrous mention a waiver of immunity to suit in United States
such abuse undoubtedly may be, a foreign state's courts or even the availability of a cause of action in the
exercise of that power has long been understood for United States.
purposes of the restrictive theory as peculiarly sovereign
in nature. The Nelsons' argument that respondent FACTS:
husband's mistreatment constituted retaliation for his
A crude oil tanker owned by respondent United Carriers,
reporting of safety violations, and was therefore
Inc., a Liberian corporation, and chartered to respondent
commercial in character, does not alter the fact that the
Amerada Hess Corp., also a Liberian corporation, was
powers allegedly abused were those of police and penal
severely damaged when it was attacked in international
officers. In any event, that argument goes to the
waters by Argentine military aircraft during the war
purpose of petitioners' conduct, which the Act explicitly
between Great Britain and petitioner Argentine Republic
renders irrelevant to the determination of an activity's
over the Falkland Islands (Malvinas) off the Argentine
commercial character.
coast. Respondents brought separate actions against
(c) The Nelsons' attempt to claim failure to warn petitioner in Federal District Court for the damage they
is merely a semantic ploy. A plaintiff could recast sustained in the attack. They invoked the District Court's
virtually any claim of intentional tort committed by jurisdiction under the Alien Tort Statute (ATS), which
sovereign act as a claim of failure to warn. To give confers original jurisdiction on district courts over civil
jurisdictional significance to this feint of language would actions by an alien for a tort committed in violation of
effectively thwart the Act's manifest purpose to codify the law of nations or a treaty of the United States.
the restrictive theory of foreign sovereign immunity. Amerada Hess also brought suit under the general
(opinion of Burger, C. J.) admiralty and maritime jurisdiction of federal courts, 28
U.S.C. § 1333, and "the principle of universal
DBL: Nelson was assigned in a hospital in Saudi Arabia. jurisdiction, recognized in customary international law."
He must have noticed some malpractice, affecting The District Court dismissed respondents' complaints for

lack of subject matter jurisdiction, ruling that their (c) Congress' failure in the FSIA to enact a pro
actions were barred by the Foreign Sovereign tantorepealer of the ATS when it passed the FSIA in
Immunities Act of 1976 (FSIA). The FSIA provides in 28 1976 may be explained at least in part by the lack of
U.S.C. § 1604 that certainty as to whether the ATS conferred jurisdiction in
suits against foreign states. In light of the
"[s]ubject to existing international agreements comprehensiveness of the FSIA's scheme, it is doubtful
to which the United States [was] a party at the that even the most meticulous draftsman would have
time of the enactment of this Act[,] a foreign concluded that Congress also needed to amend pro
state shall be immune from the jurisdiction" tanto the ATS and presumably other grants of subject
matter jurisdiction in Title 28.
of United States courts except as provided in 28 U.S.C.
§§ 1605-1607, and further provides in 28 U.S.C. § (d) The rule of statutory construction under
1330(a) that which repeals by implication are disfavored does not
apply here. This case does not involve two statutes that
"[t]he district courts shall have original
supplement one another, nor is it a case where a more
jurisdiction without regard to amount in
general statute is claimed to have repealed by
controversy of any nonjury civil action against a
implication an earlier statute dealing with a narrower
foreign state . . . as to any claim for relief in
subject. Congress' decision to deal comprehensively with
personam with respect to which the foreign
the subject of foreign sovereign immunity in the FSIA,
state is not entitled to immunity"
and the express provision in § 1604 that "a foreign state
under §§ 1605-1607 or any applicable shall be immune from the jurisdiction" of United States
international agreement. The Court of Appeals reversed, courts except as provided in §§ 1605-1607, preclude a
holding that the District Court had jurisdiction over construction of the ATS that permits the instant action.
respondents' consolidated action under the ATS.
(e) Congress dealt with the admiralty jurisdiction
HELD: of the federal courts when it enacted the FSIA. Section
1605(b) expressly permits an in personam suit in
The FSIA provides the sole basis for obtaining admiralty to enforce a maritime lien against a vessel or
jurisdiction over a foreign state in United States courts, cargo of a foreign state. Unless the present case is
and the District Court correctly dismissed the action within § 1605(b) or another exception to the FSIA, the
because the FSIA did not authorize jurisdiction over statute conferring general admiralty and maritime
petitioner under the facts of this case. jurisdiction on the federal courts does not authorize this
suit against petitioner.
(a) The FSIA's text and structure demonstrate
Congress' intention that the FSIA be the sole basis for TN: Exceptions under the FSIA include: cases
obtaining jurisdiction over a foreign state in United involving the waiver of immunity, § 1605(a)(1),
States courts. Sections 1604 and 1330(a) work in commercial activities occurring in the United
tandem: § 1604 bars United States courts from States or causing a direct effect in this country,
exercising jurisdiction when a foreign state is entitled to § 1605(a)(2), property expropriated in violation
immunity, and § 1330(a) confers jurisdiction on district of international law, § 1605(a)(3), inherited, gift,
courts to hear suits brought by both United States or immovable property located in the United
citizens and aliens when a foreign state is not entitled to States, § 1605(a)(4), non-commercial torts
immunity. occurring in the United States, § 1605(a)(5), and
maritime liens, § 1605(b)
(b) From Congress' decision in the FSIA to deny
immunity to foreign states in cases involving property (f) The District Court correctly determined that
taken in violation of international law in § 1605(a)(3), none of the exceptions enumerated in the FSIA applies
the plain implication is that immunity is granted in those to the facts of this case. The exception for non-
cases involving alleged violations of international law commercial torts in § 1605(a)(5) is limited by its terms
that do not come within one of the FSIA's exceptions. to cases in which the damage to or loss of property
occurs in the United States. The FSIA's definition of
"United States" in § 1603(c) as including all "territory (iii) Any other contract or transaction that is of
and waters, continental and insular, subject to the commercial, industrial, trading or
jurisdiction of the United States" cannot be construed to professional nature
include petitioner's attack on the high seas.
The question here is this: how do we apply the
(g) The Geneva Convention on the High Seas nature test and how do we apply the purpose
and the Pan American Maritime Neutrality Convention test? What’s the basic question?
entered into by petitioner and the United States do not
create an exception to the FSIA. A foreign state cannot You can get the answer from the case of Argentine
waive its immunity under § 1605(a)(1) by signing an Republic v. Amerada. Basically it’s a commercial activity
international agreement that does not mention a waiver if a private party could engage in for profit. Ultimate
of immunity to suit in United States courts or even the question is, what is the transaction, activity or contract?
availability of a cause of action in the United States. Nor Is it something that a private individual or entity can
does the Treaty of Friendship, Commerce and Navigation engage in? If yes, then by nature that activity is
between the United States and Liberia carve out an commercial. If that activity that only the government can
exception to the FSIA. That Treaty provides that United engage in, then that is an activity that is by nature
States and Liberian nationals shall have access to the governmental. Like collection of tax.
courts of each country "on conforming to the local laws,"
Example lease by a foreign government of apartment
and the FSIA is clearly one of the "local laws" to which
buildings for use of its military officers. So this is a
respondents must conform before bringing suit in United
contract of lease, by nature is it something that can be
States courts.
done by a private party? Of course. So regardless of the
DBL: The court used the nature test. The commercial purpose, the purpose there is that the apartment
character of a transaction is to be determined with buildings will be used for military officers. So we give
reference to the course of conduct rather than by primacy to nature, that would not have been jure
reference to its purpose. If you look at the UN imperii. Since it’s a contract of lease.
Convention of Jurisdictional Immunities, there’s an
If you apply the nature test, a contract of lease is by
enumeration of what constitutes of commercial
nature, commercial or private. In our SC was to be
transactions.
consistent with IL, then it should have focused on the
And you have here the test. It says: nature.
In determining whether a contract or transaction is a Public bidding (governmental), by nature, although in

commercial transaction under paragraph 1(c) of the the case of Ruiz, primacy was given to the purpose. The
convention, reference should be made primarily to the discussion was that since it was a public bidding, since it
nature of the contract or transaction or conduct. involved wharf for the use of US naval forces,
However, while primacy is given to nature, purpose is governmental.
not irrelevant. But its purpose should also be taken
account if the parties to the contract or transaction so The bidding for the operation of barber shops in the
agreed or if in the practice of the state in the forum, that Clark Air Base in Angeles City, clearly bidding is a
purpose is relevant to determining the non-commercial governmental act but since it involves barber shop in the
character of that transaction. Clark Air Base so the purpose was made commercial. So
jure gestionis.
Commercial transactions:
In the Philippines, the SC looks at more than the
(i) Any commercial contract or transactions for purpose than the nature. US is nature test.
the sale of goods or supply of services;
(ii) Any contract for a loan or other transaction
of a financial nature, including any
obligation of guarantee or of indemnity in
respect of any such loan or transaction;

(ii) any contract for a loan or other transaction of a
2004 UN CONVENTION ON JURISDICTIONAL financial nature, including any obligation of guarantee or
IMMUNITIES OF STATES AND THEIR PROPERTY of indemnity in respect of any such loan or transaction;
(iii) any other contract or transaction of a commercial,

Article 5. State immunity industrial, trading or professional nature, but not
including a contract of employment of persons.
A state enjoys immunity, in respect of itself and its
property, from the jurisdiction of the courts of another 3. In determining whether a contract or transaction
State subject to the provisions of the present is a “commercial transaction” under paragraph 1
(c), reference should be made primarily to the
Convention.
nature of the contract or transaction, but its
purpose should also be taken into account if the
Property parties to the contract or transaction have so
agreed, or if, in the practice of the State of the
Even in cases where a state is not a party to a case, but forum, that purpose is relevant to determining
the case nonetheless involves property of that state, the non-commercial character of the contract or
then that state may be permitted to intervene and transaction.
invoke state immunity from suit. State immunity under
the UN convention involves at least 2 situations: Take note of the definitions because it will tell you the
1. Where the state invoking immunity is a party scope of the terms used in the convention. When you
2. Where the state invoking state immunity is not a talk about the state, it involves the federal state also.
party but the case involves property of that Local government and political subdivisions is included.
state.
Courts
Jurisdiction of the courts of another state- so the
CIL on state immunity definitely applies to the exercise In the definition, there is no restriction to the application
of the jurisdiction of the court. of the concept of courts that this court should be in the
judicial department. There is nothing in the convention
Definition of Terms under the 2004 UN that restricts the concept of courts to agencies in the
Convention on Jurisdictional Immunities: judicial department. As long as it exercises judicial
functions.
(a) “court” means any organ of a State, however
named, entitled to exercise judicial functions; If you have an administrative agency also exercising
quasi-judicial function and this involves property of a
(b) “State” means: state, that would trigger the invocation of state
immunity. Also according to the international law
(i) the State and its various organs of government; commission, the concept of court proceeding is not
limited to the actual proceeding in court but even the
(ii) constituent units of a federal State or political preliminary stages before the actual court proceeding
subdivisions of the State, which are entitled to perform should be covered.
acts in the exercise of sovereign authority, and are
acting in that capacity; May be possible that a plaintiff may get a preliminary
relief or provisional relief from a court even before the
(iii) agencies or instrumentalities of the State or other actual filing of the case. If this involves property of the
entities, to the extent that they are entitled to perform state, even if it’s not in the jurisdiction of the court, the
and are actually performing acts in the exercise of state can still involve state immunity.
sovereign authority of the State;
In the Philippines, Philippine Veteran’s Association v. Del
(iv) representatives of the State acting in that capacity; Mar and in the case of Lansang v. CA, when is it
appropriate to invoke state immunity from suit?
(c) “commercial transaction” means:
When there’s an act of appropriation of public funds and
(i) any commercial contract or transaction for the sale of government property. The justification is that under our
goods or supply of services; system, no public money or property shall be taken out
of our public treasury without the required
appropriation. The only way that public fund would be
taken out from public treasure when there is an FACTS:
appropriation law. So it cannot be that public money
would be taken out from public treasury as a result from Noriega was the commander of the Panamian Defense
the judgment of the court. Forces (PDF).He became the military dictator of Panama
from 1983 to 1989.During the 1989 U.S. invasion of
So in any case that would not require the Philippine
Panama, he was removed from power, captured,
government to do that affirmative act of appropriating
detained as a prisoner of war, and flown to the United
funds or property, state immunity may be invoked. This
applies in a situation where we’re suing the Philippine States. Noriega and his 12 conspirators were indicted for
government in our own court. engaging in a criminal enterprise in violation of U.S.
racketeering and drug laws. The indictment alleged that
In IL, it’s a little broader and more comprehensive ang Noriega participated "in an international conspiracy to
scope. Not only fund or property, where the state is not import cocaine and materials used in producing cocaine
named as a party to the proceeding, so it’s possible that
into and out of the United States. Furthermore, Noriega
the state is not named as a party since it’s possible that
an official is sued. Or not really an official of a state but was alleged to have exploited his official position as
the case involves either property, rights, interest or commander- in-chief of the Panamanian Defense Forces
activities, this would trigger invocation state immunity (PDF) by receiving payoffs from the Colombia-based
from suit. That is IL application of the doctrine of state Medellin Cartel (Cartel) in exchange for his assistance.
immunity from suit. Specifically, the indictment alleged that Noriega
protected cocaine shipments from Columbia through
And it should apply this norm because we observe the
Panama to the United States, arranged for the sale and
incorporation clause. Not only CIL becomes part of the
law of the land but also generally accepted principles. shipment of ether and acetone, chemicals used for the
Even principle that have not ripened to CIL but general production of cocaine, to the Cartel, provided a refuge
principles of international law, become part of the law of and base of operations for members of the Cartel in
the land by incorporation. Panama, and assured the safe passage of millions of
dollars in narcotics proceeds from the United States.
Most principles are similar to state immunity domestic
Issue was whether Noriega can invoke head of state
discussion. For example, it’s a foreign state that initiates
immunity
the case in the court of another state and it opens itself
to a counter-claim. Or it gauges in a private contract,
HELD:
naa gihapon ng waiver. (read the entire document)
No.
HEAD OF STATE AND DIPLOMATIC
IMMUNITY In order to benefit from head of state immunity, a
government official must be recognized by the
Immunity of Former Head of State in Criminal immunizing state as the head of state. However,
Proceedings recognition is considered a discretionary function, with
there generally being no legal duty to recognize the
U.S. v. Noriega 117 F.3d 1206 (1997) validity of a state or its leader.
PRINCIPLE: It was evident that the General was merely the

commander of the PDF, and was never recognized by
In order to benefit from head of state immunity, a
the Panamanian Constitution or the United States as
government official must be recognized by the
Panama's head of state but rather continued to
immunizing state as the head of state. However,
recognize President Eric Arturo Delvalle as the legitimate
recognition is considered a discretionary function, with
leader of Panama while Noriega was in power.
there generally being no legal duty to recognize the
validity of a state or its leader. Panama had not even sought immunity on behalf of
Noriega through the State Department.
Even if recognized as the de facto leader of Panama, the

court opined, the grant of immunity is a privilege that
may be freely withheld by the United States. Thus,
because the FSIA did not control head of state immunity b) Although the immunity generally applies to both
determinations, the court looked to the Executive Branch current and former heads of a state as a diplomatic
for guidance. By pursuing Noriega's capture and norm, and shields current and former officials from suit
prosecution, the court reasoned, the Executive Branch for acts committed while acting within their official
had affirmatively manifested its intent to deny any form capacities. However, when acts taken in an official
of immunity for Noriega. capacity constitute universal crimes, the official actor
ceases to be immune from suit. A “universal crime” is
The Pinochet Case (2001) seen as a “crime against all” which any State is
authorized to punish because the crime is so significant
PRINCIPLE: Current and former heads of state may
as to warrant punishment without jurisdictional
not claim immunity against prosecution for acts which
adjudication.
have been made jus cogens norm under international
law. c) Following the Nuremburg trials after World War II, the
international community began recognizing torture—with
Although the immunity generally applies to both current
or without the presence of war and hostilities—as a war
and former heads of a state as a diplomatic norm, and
crime or crime against humanity. Modern United Nations
shields current and former officials from suit for acts
tribunals in Yugoslavia and Rwanda have recognized
committed while acting within their official capacities.
torture as a “universal crime,” and the international law
However, when acts taken in an official capacity
prohibiting torture has been accepted as jus cogens, or a
constitute universal crimes, the official actor ceases to
peremptory norm. The jus cogens nature of torture
be immune from suit.
permits States to take universal jurisdiction over the act
FACTS: wherever it is committed. Universal jurisdiction implies
that the offense may be punished by any State,
In 1998, a Spanish judge for extradition requested that regardless of whether it experienced the effects of the
an English magistrate issue a warrant for the arrest of crime, because the criminals are “common enemies of all
Pinochet, the former head of state of Chile. The request mankind and all nations have an equal interest in their
for a warrant charged that while head of state, Pinochet apprehension and prosecution.”
conspired with others to take hostage, torture, and kill
numerous people, including Spanish citizens. d) When Pinochet instituted an official regime of torture
for Chilean citizens, he engaged in universal crimes and
Pinochet was arrested and brought before an English thus relinquished his official immunity based on
court. However, he argued that he was immune from principles of international law. Additionally, Pinochet
arrest and could not properly be extradited. Issue was violated the Torture Convention of 1984, which codified
on whether a current or former head of state may claim the international crime of torture and required all
immunity against prosecution for acts which have been signatories to designate torture as a crime within their
made universal crimes under international law. own legal systems. In response to the passage of the
Torture Convention, England passed a law in December
HELD:
1988 implementing the Convention’s provisions within its
No. Current and former heads of state may not claim own borders. Chile and Spain also passed laws
immunity against prosecution for acts which have been implementing the provisions of the Torture Convention
made jus cogens norm under international law. by this date. Thus, Pinochet is liable for violating
principles of universal law and the Torture Convention,
a) Pinochet may not claim immunity for the crime of as implemented by England, Spain, and Chile when he
torture because this act has been made a universal committed acts following December 1988. However,
crime by the International Convention Against Torture England could not extradite Pinochet to Spain for acts
and other Cruel, Inhuman, or Degrading Treatment or which did not constitute a crime recognized by English
Punishment of 1984 (Torture Convention).Additionally, law at the time of their commission, and thus for
Pinochet is only extraditable for torture committed after extradition purposes, Pinochet is only found guilty of
1988 (when Pinochet’s offensive acts were recognized as tortuous acts occurring after December 1988.
a crime under both U.K. and Spanish law).

What is the scope of immunity of a head of state? longer incumbent). When he was prosecuted for torture,
he invoked immunity of head of state.
The question can be answered by first distinguishing the
two principles governing immunity. This is applicable to His lawyer said that in order to invoke immunity rationae
head of states and diplomatic officials. personae, it had to align to his function ang torture. So
Pinochet said that yes he tortured and it was upon his
order as head of state. So that the immunity would
Immunity of the head of state is governed by two apply to his function, he admitted to the torture and the
regimes. torture was admitted as his order as head of state.
According to the House of Lords of UK, the absolute
1. Immunity ratione personae – we look at the person. If prohibition of torture is a jus cogens norm and even if i-
he is an incumbent head of state, then he is immune. official ang order, it overrides the immunity afforded to
The immunity attaches to the person and not to his the former head of state in criminal proceedings. The
function. commission of the crime against humanity and jus
cogens cannot be done in an official capacity of a state.
2. Immunity ratione materiae – applies to former heads It can never be official ang torture because it violates jus
of states. Here, we look at the function. If the function is cogens norm.
official, immunity continues. Otherwise, there is no more
immunity. Immunity attaches to the materiality of the
function, whether it’s related or not.
After distinguishing, you also distinguish incumbent from

non-incumbent officials. For head of state(incumbent),
it’s immunity ratione personae. Which means during the
incumbency of the head of state(IL ni), immunity of the
head of state is absolute.
If you’re talking about the immunity of the incumbent

head of state, the principle applicable is immunity
ratione personae. Regardless of the act is related or not
related, even if the president kills or commits the crime
of rape or slander. Apparently the immunity is absolute.
This paramount importance of this immunity is really

because the president is performing the functions to all
his constituents. You obstruct his official functioning, you
prejudice the people. You deprive the people of an
effective representation. The paramount interest of the
state is above the prosecution of the criminal.
But in the case of the former head of state, the

immunity applicable is no longer immunity rationae
personae but not immunity rationae materiae. This is
where we ask the question whether the act was related
to his function. So the immunity now attaches not to the
person but now it attaches to the function. Which means
that for acts of the head of state that are in relation to
his function, that immunity can still be invoked.
But where the act is no longer related to the function,

after incumbency, the head of state no longer enjoys
such immunity. This is still CIL.
Pinochet was a dictator in Chile when he was found in

UK, allegedly for medical reasons. Although the British
agents say that he was negotiating a transaction of arms
in Chile. At that time he was the former head of state(no
Distinction of immunity ratione personae & conventions that have more or less stable, legitimate,
immunity ratione materiae acceptable provisions. As analyzed by scholars, this is
brought about by the fact that provisions here rely
If incumbent head of state the immunity applicable to it heavily on the reciprocal benefits States will derive from
is immunity ratione personae, so you don’t characterized compliance of the provisions in good faith.
the act involved whether it is related to the function of
the incumbent head of state. It does not matter for as INVIOLABILITY OF FOREIGN
long as he is incumbent, it immediately attaches to the DIPLOMATIC MISSION
person. But after incumbency, the immunity applicable
to him would already be immunity ratione materiae. So
Article 22
this time around, it should distinguish whether the act
subject of the case was done in the official capacity of 1. The premises of the mission shall be inviolable.
the head of state or not. So consequently, for acts that The agents of the receiving State may not enter
is not done in the official capacity of the head of state them, except with the consent of the head of
the immunity ceases. the mission.
The immunity of head of State will have to be 2. The receiving State is under a special duty to
contextualized only in a situation where the court take all appropriate steps to protect the
premises of the mission against any intrusion or
exercising jurisdiction is a court of another state. That
damage and to prevent any disturbance of the
makes sense because the foundation of immunity of peace of the mission or impairment of its
state is the principle of coequality among state. And dignity.
therefore subjecting the head of state to the jurisdiction
of another court would indeed be a violation of the 3. The premises of the mission, their furnishings
coequality principle. and other property thereon and the means of
However, if the court exercising jurisdiction in a criminal transport of the mission shall be immune from
search, requisition, attachment or execution.
case is an international criminal court, then there’s no
point invoking immunity from suit of head of state
because its not a domestic court so there is no occasion
One of the fundamental provisions in VCDR, all states
to say that one state is exercising jurisdiction over the
have agreed to treat the premises of the diplomatic
state.
mission as inviolable. And that one state is expected to
Although, I understand that especially African states abide by the principle because of the expectation of
they questioned the propriety of even the creation of the reciprocity by the other states concerned. Because of
international criminal court. And there are several cases that a lot of states do respect inviolability of foreign
where their own presidents have not been surrendered diplomatic mission.
by their own people to the international criminal court
So please take note of article 22 this is one of the
(ICC) because they don’t believe in the ICC anyway. But
foundations of the VCDR. It consists of two parts:
to say that the former or incumbent head of state is
immune is not relevant in the international criminal (1) the negative duty to refrain from entering the
court. premises without the consent of the head of the
nation
DBL: We’re done with ACT OF STATE DOCTRINE so
(2) the positive duty to protect the premises against
please go back to Underhill v. Hernandez, still the same
any intrusion, damage, disturbance, etc.
principle. That’s a byproduct of the sovereign coequality
principle. Other related articles:
The study of the Vienna Convention of Diplomatic Article 24

Relations (VCDR) and Vienna Convention of Consular The archives and documents of the mission shall be
Relations (VCCR), of the several conventions initiated by inviolable at any time and wherever they may be.
the United Nations and drafted by the International Law
Commissions, the VCDR is probably one of those
PUBLIC INTERNATIONAL LAW| DBL | EH-407 S.Y 2016-2017 1
Article 30
1. The private residence of a diplomatic agent shall NON-INTERFERENCE WITH MISSION’S
enjoy the same inviolability and protection as OFFICIAL COMMUNICATION
the premises of the mission.
2. His papers, correspondence and, except as Article 27
provided in paragraph 3 of article 31, his 1. The receiving State shall permit and protect free
property, shall likewise enjoy inviolability. communication on the part of the mission for all
official purposes. In communicating with the
Article 45 Government and the other missions and
If diplomatic relations are broken off between two consulates of the sending State, wherever
States, or if a mission is permanently or temporarily situated, the mission may employ all appropriate
recalled: means, including diplomatic couriers and
messages in code or cipher. However, the
(a) The receiving State must, even in case of armed mission may install and use a wireless
conflict, respect and protect the premises of the transmitter only with the consent of the
mission, together with its property and archives; receiving State.
(b) The sending State may entrust the custody of
the premises of the mission, together with its 2. The official correspondence of the mission shall
property and archives, to a third State be inviolable. Official correspondence means all
acceptable to the receiving State; correspondence relating to the mission and its
functions.
(c) The sending State may entrust the protection of
its interests and those of its nationals to a third 3. The diplomatic bag shall not be opened or
State acceptable to the receiving State detained.
4. The packages constituting the diplomatic bag

This negative obligation not to enter includes immunity must bear visible external marks of their
from processes like search, execution, attachment and character and may contain only diplomatic
other court processes. The inviolability extends even in documents or articles intended for official use.
cases of armed conflict, so even if there is an ongoing
war between the parties concerned, the immunity of the 5. The diplomatic courier, who shall be provided
with an official document indicating his status
premises continues. This extends also to the archives
and the number of packages constituting the
and documents to the mission and also even the diplomatic bag, shall be protected by the
ambassador’s residence, papers and correspondence. receiving State in the performance of his
functions. He shall enjoy person inviolability and
Whether or not the inviolability rule permits an shall not be liable to any form of arrest or
exception? What if in a situation of extreme detention.
urgency like bomb threat, fire or terrorism?
6. The sending State or the mission may designate
The answer is the inviolability principle is ABSOLUTE. diplomatic couriers ad hoc. In such cases the
The International Law commission said, the moment you provisions of paragraph 5 of this article shall
put an exception that will open the flood gates of several also apply, except that the immunities therein
possibilities of abuses. Please take note of the point mentioned shall cease to apply when such a
courier has delivered to the consignee the
which is that inviolability simply means that the receiving
diplomatic bag in his charge.
state or its authorities cannot enter the premises
WITHOUT THE CONSENT of the head of the mission. 7. A diplomatic bag may be entrusted to the
The inviolability rule does not say that there’s no way captain of a commercial aircraft scheduled to
the officials of the receiving state cannot enter into the land at an authorized port of entry. He shall be
diplomatic mission premises. Like for example there’s a provided with an official document indicating the
fire, normally the head of the mission could ask for help number of packages constituting the bag but he
and so the fire truck can enter the premises. Basically, shall not be considered to be a diplomatic
courier. The mission may send one of its
this will all therefore boil down to the responsibility of
members to take possession of the diplomatic
the head of the mission.

bag directly and freely from the captain of the subjected to jurisdiction, criminal, civil, detention,
aircraft. subpoena either as party to the case or as witness. But
please take note of what has been observed as a change
in the rationale for the grant of diplomatic immunity.
Art. 27 is about the prohibition of the interference to the
mission’s official communication. There’s a high Traditional justification- refers to extra territoriality
possibility that official communication by an ambassador theory as justification for diplomatic immunity pursuant
to his president could be intercepted. And because of to co-equality of states.
reciprocity, all states will never permit also other states
to intercept their own communication. If you have to Modern justification- refers to functional necessity
understand, embassies also serve as spies in the which means diplomats must enjoy protection in order
territory of other states. That’s why embassies in other for them to discharge their duties more effectively and
states which are also doing intelligence gathering, would efficiently.
deem it would be to the best interest of all the states
involved to really comply with the prohibition on International law has developed in that regard, the
interference with the mission’s official communication. primary justification now for the diplomatic immunity is
And this brings us to the bar question about diplomatic what we call “Functional Necessity”. That is a very
bag… crucial development in international law which illustrated
in this bar question below
What is a DIPLOMATIC BAG?
Bar Question: State A(sending state) sent Ambassador
The rule is found in the 1989 ILC Draft articles on X at their embassy in the territory of State B(receiving
Diplomatic Courier. The prohibition of its interference or state). Ambassador X at one time took a vacation in
violation of the inviolability of the bag covers DIRECT State C, another state. This is where he was found
and INDIRECT interference with the electronic having been in company of a minor which is illegal and
examinations. But of course, what’s practiced now is therefore Ambassador X was arrested and detained in
that they are still subject to electronic examination State C. Can Ambassador X invoke his diplomatic
provided that only the state knows this and it cannot immunity?
intercept the communication. There’s no x-ray machine
yet that could read the contents of the papers right? So DBL Answer: So if your initial idea is “Representative
far there is none. But suspicion on the illegality of the character theory”, it cannot be justified because when
contents of the bag will permit the authorities to have he was in state C for vacation and not representing
the diplomatic bag opened but in the presence of the State A. “Extraterritoriality principle” cannot apply also
representative of the sending state, remember because its clearly outside the embassy. But if you apply
reasonable suspicion. But for it to qualify as a diplomatic “Functional Necessity” then the only thing that matters is
bag, it must have visible external marks of its character whether the process, which was the arrest and the
and must only contain diplomatic documents or official prosecution, would hamper the functioning of the
articles. ambassador. Definitely yes, he can’t go home anymore
and he can’t represent State A anymore and cannot
DIPLOMATIC IMMUNITY discharge the function there in State B. So to sum it up,
Ambassador X can still invoke diplomatic immunity under
Article 29 the “Functional necessity” theory, provided he is the
The person of a diplomatic agent shall be inviolable. He
incumbent Ambassador.
shall not be liable to any form of arrest or detention. The
receiving State shall treat him with due respect and shall
Article 31
take all appropriate steps to prevent any attack on his
1. A diplomatic agent shall enjoy immunity from
person, freedom or dignity.
the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
The diplomatic immunity, referring to the immunity of
the members of the diplomatic mission (diplomats) also (a) A real action relating to private immovable
have personal inviolability meaning they cannot be property situated in the territory of the receiving

State, unless he holds it on behalf of the emoluments they receive by reason of their
sending State for the purposes of the mission; employment and the exemption contained in
article 33.
(b) An action relating to succession in which the
diplomatic agent is involved as executor, 4. Private servants of members of the mission
administrator, heir or legatee as a private shall, if they are not nationals of or permanently
person and not on behalf of the sending State; resident in the receiving State, be exempt from
dues and taxes on the emoluments they receive
(c) An action relating to any professional or by reason of their employment. In other
commercial activity exercised by the diplomatic respects, they may enjoy privileges and
agent in the receiving State outside his official immunities only to the extent admitted by the
functions. receiving State. However, the receiving State
must exercise its jurisdiction over those persons
2. A diplomatic agent is not obliged to give in such a manner as not to interfere unduly with
evidence as a witness. the performance of the functions of the mission.
3. No measures of execution may be taken in Private residence of the diplomat need not necessarily
respect of a diplomatic agent except in the cases that he owns the residence. Even if it is just rented or
coming under subparagraphs (a), (b) and (c) of even just a hotel room, it will still enjoy the same
paragraph 1 of this article, and provided that the
inviolability.
measures concerned can be taken without
infringing the inviolability of his person or of his
Immunity of the ambassador in criminal cases is
residence.
absolute. But in civil cases, there are 3 exceptions:
4. The immunity of a diplomatic agent from the (1) Where the ambassador is sued as executor or
jurisdiction of the receiving State does not
administrator of the property
exempt him from the jurisdiction of the sending
State.
(2) Where the transaction is commercial
Article 37
(3) Where the property is held not for and in behalf of
1. The members of the family of a diplomatic agent
forming part of his household shall, if they are the mission but in his private capacity.
not nationals of the receiving State, enjoy the
privileges and immunities specified in articles 29 Immunity extends to diplomats’ members of the family,
to 36. administrative & technical staff including the members of
their own families in criminal jurisdiction only.
2. Members of the administrative and technical
staff of the mission, together with members of So if its civil and administrative jurisdiction, this
their families forming part of their respective inviolability would only apply is the acts subject of the
households, shall, if they are not nationals of or case is INTRAVIRES (within the powers).
permanently resident in the receiving State, Its similar to the immunity of the consul because its
enjoy the privileges and immunities specified in
immunity is only when the function involved is official,
articles 29 to 35, except that the immunity from
civil and administrative jurisdiction of the so if nagpabribe sya in the issuance of certain travel
receiving State specified in paragraph 1 of papers its part of his official function. But if he commits
article 31 shall not extend to acts performed rape in the receiving state then it has nothing to do with
outside the course of their duties. They shall his function as administrative staff of the ambassador.
also enjoy the privileges specified in article 36, The act then becomes ULTRA VIRES (beyond the
paragraph 1, in respect of articles imported at
powers) and therefore even in criminal jurisdiction,
the time of first installation.
inviolability will still not apply.
3. Members of the service staff of the mission who Obviously, under Art. 31 this does not preclude the
are not nationals of or permanently resident in
sending state to exercise criminal jurisdiction over the
the receiving State shall enjoy immunity in
respect of acts performed in the course of their offense. But the remedy of the receiving state is to
duties, exemption from dues and taxes on the declare the diplomat persona nongrata or severe the

diplomatic relations. So as I mentioned earlier, immunity Belgium sought the minister’s extradition on allegations
ratione personae attaches to the person. Immunity of grave violations of international humanitarian law.
ratione materiae attaches to the act. The same principle The warrant was transmitted to the International
applies to the diplomats. Criminal Police Organization (Interpol) and was
circulated internationally.
Again in criminal jurisdiction, inviolability is absolute.
However it’s not absolute in regard to administrative and DRC filed suit against Belgium in the International Court
technical staff including their family members because of Justice (ICJ) on the ground that Belgium violated
the immunity extends only to acts INTRA VIRES but for international law by issuing the arrest warrant.DRC
acts ULTRA VIRES immunity in criminal jurisdiction will argued that the minister should enjoy official immunity
no longer apply with respect to administrative & from suit. Additionally, DRC argued the arrest warrant
technical staff and family members. But for members of prevented its minister from leaving the State and thus
the missions, like the diplomat themselves, immunity in prevented him from exercising his official duties.
criminal jurisdiction is absolute. But after their
incumbency, it becomes immunity ratione materiae. So Issue: Whether, under international law, a State’s
the immunity of diplomats extends to arrests and minister of foreign affairs enjoys immunity from criminal
detention as confirmed in the Democratic Republic of prosecution and inviolability when abroad for the
Congo v. Belgium case. duration of his or her office.
Distinction between diplomatic office and HELD:

consular office as to function?
a) Yes. Under international law, a State’s minister of
The embassy/ diplomatic office exists to foster political, foreign affairs enjoys immunity from criminal
governmental relationship between the sending and prosecution and inviolability when abroad for the
receiving state, Whereas consular office is for the duration of his or her office. This is a protection
private, commercial functions of the sending state. available to ministers of foreign affairs under customary
Example of that would be authentication of foreign international law. Ministers need such a protection not
documents, like lets say Special power of attorney, our for their own benefit, but so they are able to perform
clients in the US would not have to come here to the functions of their jobs (including significant
execute the SPA because it allowed that they execute international travel) unencumbered. This immunity from
the document there in the US authorizing someone here criminal suit extends to acts committed by the minister
in the Philippines to represent them. But before a in either his official or personal capacity, either before or
foreign government would be admitted and recognize by during his tenure in office. This broad immunity is
the court, it must be authenticated in the consular necessary because any criminal prosecution, regardless
office. That’s what they call red ribbon. of its nature, would have the effect of prohibiting the
minister from adequately performing his job; a matter
Democratic Republic Congo v. Belgium which could negatively impact the diplomatic relations of
his State.
PRINCIPLE: Under international law, a State’s minister
of foreign affairs enjoys immunity from criminal b) This rule of absolute immunity for ministers of foreign
prosecution and inviolability when abroad for the affairs has no exceptions based on either international
duration of his or her office, subject to four exceptions. practice or the laws governing international tribunals.
There is no recognized exception to immunity even if the
FACTS: minister is accused of committing war crimes or crimes
against humanity. However, there is an important
On April 11, 2000, Belgium issued an international arrest
distinction between immunity from criminal prosecution
warrant against AbdoulayeYerodiaNdombasi, the acting
for ministers while in office, versus a complete absence
minister for foreign affairs of the Democratic Republic of
of criminal liability.
the Congo (DRC).He was charged with inciting genocide
for publicly encouraging the Congolese population to kill
members of a rebellion against the government,
primarily ethnic Tutsis.
c) The immunities enjoyed under international law by a Indonesia v. Vinzon
current or former minister of foreign affairs do not
represent a bar to criminal prosecution in four specific Republic of Indonesia entered into a contract with a
circumstances. contractor for the repair of cooling equipments. The
Embassy of Indonesia contracted it, but they pre-
(1) Ministers enjoy no criminal immunity under terminated the contract. So the contractor sued for
international law in their own countries, and breach of contract where there was an argument by the
may thus be tried by those countries’ courts in Republic of Indonesia of state immunity, the counter
accordance with the relevant rules of domestic argument was “it is found in the contract that any and
law. all suits arising from this contract can only be filed in the
courts of Makati”. Accordingly daw that provision
(2) Ministers will cease to enjoy immunity from signifies the consent of the Republic of Indonesia to be
foreign jurisdiction if the State which they sued. But the court said that is not a sufficient evidence
represent or have represented decides to waive of the waiver of Indonesia of its consent to be sued,
that immunity. because for all you know that provision can be exercised
by the Indonesia if it’s the one initiating the case. So this
(3) After a person ceases to hold the office of
cannot be interpreted as consent to be sued.
minister of foreign affairs, he or she will no
longer enjoy all of the immunities accorded by
international law in other States.
(4) A current or former minister of foreign

affairs may be subject to criminal proceedings
before certain international criminal courts (such
as the United Nations criminal tribunals for the
former Yugoslavia and Rwanda), where those
courts have jurisdiction.
DBL: affirms that even ministers of foreign affairs enjoy

the same immunity as such of the head of state and the
diplomats, the justification is that although he is not a
diplomat but since the minister of foreign affairs
exercises diplomatic functions nonetheless he still enjoys
immunity. Even for international crimes. For as long as
the court is a domestic court, even if in one state the
offense is an international crime like a crime against
humanity but he will be prosecuted in a domestic court,
immunity can still be invoked.
There’s no prohibition that a state would punish
international crimes in fact they are required to have
statutes penalizing international crimes pursuant to the
complementarity principle in IL
Do you get the difference? Don’t confuse this with the

Pinochet case discussion. Pinochet was different because
immunity cannot be invoked anymore since crime
involved is torture and it not part of his official act and
was violation of a jus cogens norm thus it is paramount
to the principle of state immunity and lastly, Pinochet
also at that time was no longer an incumbent head of
state.

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STATES AND GOVERNMENTS A minority or national group of a nation does not have

the right to withdraw from the nation, absent

Aaland Islands Case If minorities had an absolute right in ordinary

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |2

Island of Palmas Case (Netherlands v. US,

First way natural(taas kaayo ang jokes ni sir dire). Facts:

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |3

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |4

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |5

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |6

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |10

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |12

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |14

After Recognition EXCEPTION:

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |16

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |17

But usually the conditions would say part of the

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |18

Held: Why the need to study jurisdiction after having

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |19

Does the naturalization of Nottebohm, as a citizen of 2. Jurisdiction to adjudicate

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |20

PRINCIPLE: The protective principle is more general

Under protective principle, a state can legislate crimes US v. Vasquez-Velasco

FACTS: DBL: They were killed because these drug syndicates of

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |25

So when Osama Bin Laden questioned the jurisdiction of HELD:

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |26

In one bar exam, the question was distinguish

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |27

So the third condition requires that (3) the offense must

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |28

ABDUCTION FRISBIE v. Collins, 342 U.S. 519 (1952)

PRINCIPLE: same as Kerr

KER v. Illinois, 119 U.S. 436 (1886) HELD:

PRINCIPLE: “[t]his Court has never departed from the rule

FACTS: “There is nothing in the Constitution that requires a

Take note of the two reasons given: FACTS:

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |30

In reaching this decision, the Court ignored or rejected a US v. Toscanino

In the Philippines, we have situations involving foreign

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |33

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |34

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |36

In determining whether a contract or transaction is a Public bidding (governmental), by nature, although in

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |38

(iii) any other contract or transaction of a commercial,

PRINCIPLE: It was evident that the General was merely the

Even if recognized as the de facto leader of Panama, the

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |41

After distinguishing, you also distinguish incumbent from

If you’re talking about the immunity of the incumbent

This paramount importance of this immunity is really

But in the case of the former head of state, the

But where the act is no longer related to the function,

Pinochet was a dictator in Chile when he was found in

The study of the Vienna Convention of Diplomatic Article 24

4. The packages constituting the diplomatic bag