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PUBLIC INTERNATIONAL LAW

Mr. Benjamin A. Cabrido Jr. Professor, USJ-R College of Law

INTERNATIONAL LAW [Generic Sense]

Public international law - Governs the relationship between states and international organizations. It includes the following specific legal field such as the treaty law, law of sea, international criminal law and the international humanitarian law. Private international law, or conflict of laws - Addresses the questions of (1) in which legal jurisdiction may a case be heard; and (2) the law concerning which jurisdiction applies to the issues in the case. Supranational law or the law of supranational organizations Concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.

Supranational law

Form of international law, based on the limitation of the rights of sovereign nations between one another. Distinguished from public international law: the latter involves the United Nations, the Geneva conventions, or the Law of the Sea, because in supranational law, nations explicitly submit their right to make judicial decisions to a set of common institutions.

Supranational theory

Normative Supranationalism: The relationships and hierarchy which exist between community policies and legal measures on one hand and the competing policies and legal measures of the Member states on the other. (The Executive Dimension) Decisional Supranationalism: The institutional framework and decision making by which such measures are initiated, debated, formulated, promulgated and finally executed. (The LegislativeJudicial Dimension)

Examples of Supranational Laws

European Union law - Constitutes "a new legal order of international law. In the EC, sovereign nations have pooled their authority through a system of courts and political institutions. They have the ability to enforce legal norms against and for member states and citizens, in a way that public international law does not Union of South American Nations - An organization on the South American continent. It declared in 2004 its intention to establish a framework akin to the European Union by the end of 2007. It is envisaged to have its own passport and currency, and limit barriers to trade.

Chapter 1 GENERAL PRINCIPLES PUBLIC INTERNATIONAL LAW

What is International Law?


Traditional: That branch of public law which regulates the relations of states and of other entities which have been granted international personality.
[Schwarzenberger, p.1]

Modern: That law that deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relation with persons, natural or juridical. [American
Third Restatement]

Divisions of International Law


Law of Peace that which consists of the rules of international law on the rights and obligations of states in time of peace; Law of War [Also referred to as IHL] that which consists of the rules of international law on the rights and obligations of states in time of war; and Law of Neutrality that which consists of the rules of international law on the rights and obligations of states connected with neutrality.

Traditional Branches of IL

Jus Gentium Law of Nations, i.e. law of war, law of peace, law on neutrality, etc. Jus Inter Gentes Agreements among Nations, i.e. international agreements, treaties & conventions

International Humanitarian Law

Set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. Also known as the law of war or the law of armed conflict.

Jus in bello - law concerning acceptable conduct in war. Jus ad bellum - law concerning acceptable justifications to use armed force.

Origins of IHL

Rooted in the rules of ancient civilizations and religions, i.e. warfare has always been subject to certain principles and customs.

Two Historical Streams of PIL

The Law of The Hague or the Laws of War Proper comprised of two conventions and one (1) protocol. The Law of Geneva or the International Humanitarian Law comprising of four (4) Conventions plus three (3) protocols. Both are branches of JUS IN BELLO

The Law of the Hague


The Hague Convention of 1899 The Hague Convention of 1907 Geneva Protocol to the Hague Convention These laws determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm." In particular, it concerns itself with the definition of combatants, establishes rules relating to the means and methods of warfare, and examines the issue of military objectives.

Basic Rules in IHL

Persons hors de combat and those not taking part in hostilities shall be protected and treated humanely. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat. The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the red cross or the red crescent must be respected as the sign of protection.

Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief. No one shall be subjected to torture, corporal punishment or cruel or degrading treatment. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.

Coverage of IHL

Protection of those who are not, or no longer, taking part in fighting; and Restrictions on the means of warfare in particular weapons and the methods of warfare, such as military tactics.

Meaning of Protection under IHL

International humanitarian law protects those who do not take part in the fighting, such as civilians and medical and religious military personnel. It also protects those who have ceased to take part, such as wounded, shipwrecked and sick combatants, and prisoners of war.

International Humanitarian Laws

Geneva Conventions of 1949 Supplemented by: Additional Protocols of 1977 relating to the protection of victims of armed conflicts 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict plus its two protocols: 1972 Biological Weapons Convention 1980 Conventional Weapons Convention and its five protocols 1993 Chemical Weapons Convention 1997 Ottawa Convention on anti-personnel mines

Application of IHL

Applies only to armed conflict Does not cover internal tensions or disturbances such as isolated acts of violence. Applicable only once a conflict has begun, and then equally to all sides regardless of who started the fighting.

Similarities and Differences: IHL and Human Rights Law


International humanitarian law and international human rights law are two distinct but complementary bodies of law. Both seek to protect the individual from arbitrary action and abuse. Human rights are inherent to the human being and protect the individual at all times, in war and in peace. International humanitarian law only applies in situations of armed conflict. Thus, in times of armed conflict international human rights law and international humanitarian law both apply in a complementary manner.

Islamic International Law

Sharia

Body of Islamic religious law. Means "way" or "path to the water source." Legal framework within which the public and private aspects of life are regulated for those living in a legal system based on Islamic principles of jurisprudence and for Muslims living outside the domain. Deals with many aspects of day-to-day life, including politics, economics, banking, business, contracts, family, sexuality, hygiene, and social issues.

Primary Sources of Islamic Law

Qur'an - Central religious text of Islam. Muslims believe the Quran to be the book of divine guidance and direction for mankind, and consider the original Arabic text to be the final revelation of God. Sunnah - literally means trodden path, and therefore, the sunnah of the prophet means the way and the manners of the prophet. Terminologically, the word Sunna in Sunni Islam means those religious achievements that were instituted by the Islamic prophet Muhammad during the 23 years of his ministry and which Muslims initially obtained through consensus of companions of Muhammad, and further through generation-togeneration transmission.

Secondary Sources of Islamic Law


Consensus among Muslims jurists Analogical deduction or Al-Ra'y Independent reasoning Benefit for the Community Custom

Siyar (International Law)


Written at the end of the 8th century by Muhammad al-Shaybani, an Islamic Jurist. Dealt both public and private International Law. General Subjects: Islamic ethics, Islamic economic jurisprudence and Islamic military jurisprudence.

Other Contemporary Subjects in Siyar


Law of treaties Treatment of diplomats, hostages, refugees and prisoners of war Right of asylum Conduct on the battlefield Protection of women, children and non-combatant civilians Contracts across the lines of battle Use of poisonous weapons Devastation of enemy territory

Islamic Rulings on Warfare


Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.

Major Islamic Principles Adopted by Common Law

Equity and Good Faith - precursor to the concept of pacta sunt servanda in civil law and international law. Made major contributions to international admiralty law.

Muslim sailors being "paid a fixed wage in advance with an understanding that they would owe money in the event of desertion or malfeasance. Consistent with Islamic conventions" in which contracts should specify a known fee for a known duration In contrast to Roman and Byzantine sailors who were "stakeholders in a maritime venture, in as much as captain and crew, with few exceptions, were paid proportional divisions of a sea ventures profit, with shares allotted by rank, only after a voyages successful conclusion."

Muslim jurists also distinguished between "coastal navigation, or cabotage," and voyages on the high seas and Shippers are made "liable for freight in most cases except the seizure of both a ship and its cargo. Islamic law also "departed from Justinians Digest and the Nomos Rhodion Nautikos in condemning slave jettison Islamic Qirad - precursor to the European commenda or limited partnership.

International Law distinguished with Municipal Law

Monist: No distinction since there is oneness or unity of all law; that international law cannot be comprehended without the assumption of a superior legal order from which the various systems of municipal law are, in a sense, derived by way of delegation.

To the Dualist, who believes in the dichotomy of the law: Yes, there are distinctions, to wit: ML is issued by a political superior for observance by those under its authority, while IL is not imposed but adopted by states as a common rule of action; ML consists of enactments of law-making authority, while IL is derived from such sources as international customs, conventions or general principles of law;

ML regulates the relations of individuals among themselves or with their own states, whereas IL applies to the relations inter se of states and other international persons; Violations of ML are redressed through local administrative and judicial processes, whereas questions of IL are resolved through state-to-state transactions ranging from peaceful methods like negotiations and arbitration to the hostile arbitrament of force like reprisals and even war; and Breaches of ML entail individual responsibility, while responsibility for infractions of IL is usually collective in the sense that it attaches to the state and not to its nationals

Incorporation v. Transformation

Doctrine of Incorporation: It is a universally accepted postulate that, with or without an express declaration to this effect, states admitted to the family of nations are bound by the rules prescribed by it for the regulation of international intercourse. By this doctrine, international law is binding ex proprio vigore (by its own force). Doctrine of Transformation: The generally-accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law.

In the Philippines, what doctrine is being followed?

The doctrine of incorporation as expressed in Sec. 2, Art. II, 1987 Constitution: The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations [underscored is the so-called incorporation clause]

Kuroda v. Jalandoni, G.R. No. L-2662, March 28, 1949


Held: Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulations of the Hague and Geneva conventions from part of and are wholly based on the generally accepted principles of international law.

In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.

Yamashita v. Gen. Styer, G.R. No. L-129


Held: War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. (Ex parte Quirin, 317 U.S. 1, 63 Sup. Ct. 2)

Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty agreement. (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944)

Co Kim Chan v. Valdez Tan Keh, G.R. No. L-5, Sept. 17, 1945
On the contention that MacArthurs Proclamation issued on October 23, 1944 invalidated all judicial proceedings during the Japanese occupation, it was Held: Taking into consideration the fact that according to a wellknown principle of international law, all judgments and judicial proceedings which are not of a political complexion of the de facto government during the Japanese military remained so after the occupied territory had come again into the power of the titular sovereign, it should be presumed that it was not and could not have been the intention of General MacArthur, in using the phrase processes of any other government in said proclamation, to refer to judicial processes, in violation of said principle in international law.

Treaty v. Constitution v. Statute


If the conflict is with the Constitution: uphold the Constitution (Sec. 5[2][a],Art. VIII, 1987 Constitution; If conflict is with statute: The doctrine of incorporation applies. A treaty may repeal a statute, and a statute may repeal a treaty. Note: Doctrine of Lex posterior derogat priori that which comes last in time, will usually be upheld by the municipal tribunal. With international tribunal deciding: international law is superior to municipal law because international law provides the standard by which to determine the legality of a States conduct.

Ichong v. Hernandez, 101 Phil. 115


Held: The Retail Trade Nationalization Law prevails over the Treaty of Amity with China and the Universal Declaration of Human Rights because the law was passed in the exercise of police power of the State, and police power cannot be bargained away through the medium of a treaty or a contract

Gonzales v. Hechanova, G.R. L-21897, Oct. 22, 1963


On the validity of the executive agreement signed by the President for importation of rice from Burma and Vietnam without first securing from the National Economic Council the requisite certification, it was: Held: Although the President may, under the American constitutional system, enter into executive agreements without previous legislative authority, he may not, by executive agreements, enter into a transaction which is prohibited by statutes enacted prior thereto.

Tanada v. Angara, G.R. 118295, May 2, 1997


Held: By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda international agreements must be performed in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.

In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain and police power. The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine commitments under WTO-GATT.

Basis of International Law

Law of Nature School (Samuel Pufendorf): That there is a natural ad universal principle of right and wrong, independent of mutual intercourse or compact, which can be discovered and recognized by every individual through the use of his reason and conscience. Since individuals compose the State whose will is but the collective will of the inhabitants, the State also becomes bound by the law of nature.

The Positivist School (Richard Zouche): The binding force of international law is derived from the agreement of the States to be bound by it. In this context, international law is not a law of subordination but of coordination; The Eclectic or Grotian School (Emerich de Vatel/Christian Wolff): Insofar as it conforms to the dictates of right reason, the voluntary law may be said to blend with the natural law and be, indeed, an expression of it. In case of conflict, the natural law prevails, being the more fundamental law.

Is International Law a true Law?

If by law we mean, following the definition of the English school of analytic and positive jurisprudence founded by Bentham and Austin, a rule of conduct laid down for the guidance of an intelligent being by another intelligent being having power over him, then international law is not true law. But if by law we mean, following the definition of the school of historical jurisprudence founded by the German jurist Savigny and English jurist Sir Henry Maine, any rule recognized as a binding rule and observed as such, then international law is true law.

Public International Law v. Private International Law

Public International Law deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relation with persons, natural or juridical. Private International Law (appropriately named Conflict of Laws) embraces those universal principles of right and justice which govern the courts of one state having before them cases involving the operation and effect of the laws of another state or country. (Minor, Conflict of Laws, p. 4)

As to persons on whom they operate: Public International law deals for the most part with nations as such, while Private International Law deals with private individuals. As to the transactions to which they relate: The former recognizes in general only transactions in which sovereign states are interested, while latter assumes control over transactions strictly private in nature, in which the states as such has generally no interest.

As to the remedies applied: In the contest between states arising under the law of nations, recourse is had first and generally to diplomatic channels and should such fail, to retorsion, reprisal, and other means short of war and in extreme cases to war. Meanwhile, in cases to which private international law is applicable, recourse is had to judicial tribunals acting under the authority and in accordance with the rules of procedure of the country which they sit. (Minor, Ibid, p. 213)

Public International v. International Ethics

International ethics (or morality) deals with the principles which should govern international relations from the higher standpoint of conscience, justice, or humanity. (Hershey, Essential of International Law, p.2)

Public International Law v. International Comity


International comity, in connection with public international law, relates to those rules of courtesy, etiquette, or goodwill which are or should be observed by governments in their dealings with one another on grounds of convenience, honor, or reciprocity. (Hershey, Ibid, p.3) Examples: Extradition of criminals in the absence of express agreement or treaty; Observance of certain diplomatic forms and ceremonies; and Faith and credit given in each state to the public acts, records, and judicial proceedings of other states

Public International Law v. International Diplomacy

International diplomacy (policy) in the wider sense relates to objects of national or international policy and the conduct of foreign affairs or international relations. It is generally based upon considerations of expediency or national interest rather than upon those of courtesy, humanity, or justice. (Hershey, Ibid, p. 3-4)

Public International Law v. International Administrative Law

International administrative law is that body of laws and regulations created by the action of international conferences or commissions which regulate the relations and activities of national and international agencies with respect to those material and intellectual interest which have received an authoritative universal recognition.

It relates to such matters as international communication by means of postal correspondence and telegraphy, international transportation, copyright, crime, sanitation, etc. It is created by international congresses or conferences and commission, and is administered by international
commission and bureaus as well as by national agencies.

Aims of Public International Law


To eliminate absolutism and the preponderance of force; To attempt to determine the rights of the people in relation to states and governments; and To fix the rules governing them, as well as the measures of legal protection designed to guarantee and safeguard such rights [Fiori,
Elements of Private International Law, p. 35]

Object of International Law

To investigate and determine the international rights and reciprocal duties which must belong to every member of such society, and to fix the legal rules governing such rights and duties and the legal measures designed to protect their fulfillment. [Fiore, Ibid, p.35]

Sanctions of International Law


Appeal to public opinion; Publication of correspondence; Censure by Parliamentary vote; Demand for arbitration with the odium attendant on a refusal to arbitrate; Rupture of relations; Reprisals, etc. [North Atlantic Fisheries Arbitration, Scott, Hague Court
Reports (196), p. 141]

Reasons Why States Obey the Precepts of International Law

Belief in the inherent reasonableness of international law and in their common conviction that its observance will redound to the welfare of the whole society of nations; Because of normal habits of obedience ingrained in the nature of man as a social being;

Respect for world opinion or desire to project an agreeable public image in order to maintain goodwill and favorable regard of the rest of the family of nations; Constant and reasonable fear that violations of international law might visit upon the culprit the retaliation of other states; Moral influence of the UN and its power to employ physical force when warranted.

Enforcement of International Law Upon States in Time of Peace

Channels of diplomacy between contending states or through international organizations or regional groups such as the UN, ASEAN, OAS, EU. If grievance is brought before the UN through the Security Council or the ICJ, these bodies may thereafter adopt such measures as may be necessary to compel compliance with international obligations or vindicate the wrong committed.

By recourse to measure like mediation, arbitration, commissions of inquiry, rupture of diplomatic relations, retorsion or retaliation, display of force, use of force, reprisal, pacific blockade, embargo, non-intercourse. A State may treat the rules of international law as part of its municipal law. Its legislature may implement such rules by prescribing the norms for their observance and providing specific penalties for their violations. Examples: law on genocide and offense against diplomatic representatives.

Enforcement of International Law in Time of War

Through the war agencies of the belligerent states and by their prize courts; and By neutral states through their respective executive, legislative and judicial departments.

Chapter 2 SOURCES OF INTERNATIONAL LAW

Sources of International Law


Primary: International Treaties and Conventions International Customs General Principles of Law Secondary: Judicial decisions; and Writings of publicists

International Treaties and Conventions


Treaties may be divided into 2 classes: Legislative in character Those that formulate openly and avowedly rules of conduct meant to be binding on the members of the family of nations as a body or at least on all of them which are directly concerned with the matter referred to in the treaty. Examples: (3) conventions of the Hague Conference of 1899, (13) conventions of the Hague Conference of 1907, Warsaw Convention, UN Charter.

Declaratory of international law - those that simply state rules previously recognized by the general body of nations. Examples: conventions in the Hague setting forth a code for the regulations of war on land; the rules of the Declaration of London of 1909 on blockade and contraband; and portions of the conventions of the Armed Neutrality of 1780 and 1800.

International Customs

Must be evidenced of a general practice accepted as binding law through persistent usage over a long period of time. Examples: Right of Angary given to a belligerent state to destroy or use neutral property in cases of extreme necessity; the maritime rules first set forth in the Rhodian Law; exterritoriality; extraterritoriality; rules of blockade. Requisites: a) must be the prevailing practice by a number of states; b) must be repeated over a considerable period of time; and must be attended by opinio juris (sense of legal obligation).

Custom v. Usage

While both connote those long established practices by states, they differ in that in usage, there is no attendance of a sense of legal obligation, i.e. the practice is not couples with the conviction that it is obligatory and right. Example of a usage is the old time ceremonial in the open sea which, although generally observed before, were generally not regarded as compulsory.

Soft Law v. Hard Law

The term "soft law" refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditional law, often contrasted with soft law by being referred to as "hard law".

Examples of Soft Law

Most Resolutions and Declarations of the UN General Assembly, for example, the Universal Declaration of Human Rights; Elements such as statements, principles, codes of conduct, codes of practice etc.; often found as part of framework treaties; Action plans (for example, Agenda 21); Other non-treaty obligations

Soft Law May Become Hard Law

Soft law instruments are usually considered as non-binding agreements which nevertheless hold much potential for morphing into "hard law" in the future. This "hardening" of soft law may happen in two different ways: a) when declarations, recommendations, etc. are the first step towards a treaty-making process, in which reference will be made to the principles already stated in the soft law instruments; and b) When non-treaty agreements are intended to have a direct influence on the practice of states, and to the extent that they are successful in doing so, they may lead to the creation of customary law.

Utility of Soft Law

Convenient option for negotiations that might otherwise stall if legally binding commitments were sought at a time when it is not convenient for negotiating parties to make major commitments at a certain point in time for political and/or economic reasons but still wish to negotiate something in good faith in the meantime. As a flexible option - it avoids the immediate and uncompromising commitment made under treaties and it also is considered to be potentially a faster route to legal commitments than the slow pace of customary international law.

used to evidence opinio juris on applying or interpreting a treaty. in the field of international environmental law where states have been reluctant to commit to many environmental initiatives when trying to balance the environment against economic and social goals. It is also important in the field of international economics law and international sustainable development law.

Opinio Juris or Opinio Juris Sive


Necessitatis

the belief that an action was carried out because it was a legal obligation. subjective element which is used to judge whether the practice of a state is due to a belief that it is legally obliged to do a particular act . sometimes difficult to establish opinio juris, but where there is consistent practice over a length of time, the need for opinio juris is lessened. Where there is more sporadic state practice, the presence of opinio juris becomes more important .

Customary International Law


Aspects of international law that derive from custom. Coupled with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law. For example, laws of war were long a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties.

Examples of Customary International Law


various international crimes; a state which carries out or permits slavery, genocide, war of aggression, or crimes against humanity is always violating customary international law; principle of non-refoulement, immunity of visiting foreign heads of state; and right to humanitarian intervention.

Principle of Jus Cogens

Customary international law which has the status of a peremptory (i.e., absolute, uncompromising, certain) norm in international law cannot be permitted to be derogated. Peremptory norm is a norm accepted and recognized by the international community of states as a rule, from which no derogation is permitted. Examples: slave trade, piracy, terrorism, human rights

General Principles of Law

These are rules derived mainly from law of nature which are observed and recognized by civilized nations. Examples: res judicata, prescription, pacta sunt servanta, estoppel, and ex aequo et bono (what is good and just).

Decision of Courts

Most authoritative are those rendered by ICJ of the Hague; Decisions from other international tribunals or arbitration bodies and even national tribunals may be resorted to provided they show correct application and interpretation of the law of nations; Stare Decisis inapplicable in international law. Art. 59, ICJ Statute: The decision of the Court has no binding force except between the parties and in respect to that particular case.

International Court of Justice, The Hague

Art. 38, Statute of the ICJ


1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidenced of a general practice accepted as law;

c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This prohibition shall not prejudice the power of the Court to decide a case ex aequo et bono (what is good and just), if the parties agree thereto.

Interpretation of Art. 38, ICJ

Although the provision is silent on the question of whether the three primary sources have the same hierarchic value, by practice, treaties take precedence over customs, and customs over general principles of law. Exception: Principle of Jus Cogens.

Writings of Publicists

Must be fair and unbiased representation of international law ; and Author must be an acknowledged authority in the field. Mere credentials are insufficient as author may have been motivated by: National pride or interest; or Error in interpreting a rule in international law; or In supposing the existence of a rule which does not in fact form part of the law of the nations.

Chapters 3, 4 & 5 INTERNATIONAL COMMUNITY, THE UN & CONCEPT OF STATE

Subject v. Object

A Subject is an entity that has rights and responsibilities under international law. It has an international personality; it can be a proper party in transactions involving the application of the law of nations among members of the international community. An Object is a person or thing in respect of which rights are held and obligations assumed by the subject. It is not directly governed by the rules of international law. Its rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency.

Subjects in International Law


States Colonies and Dependencies Mandates and Trust Territories The Holy See The UN Belligerent communities International administrative bodies To certain extent: individuals

State Defined

A State is a group of people, living together in a fixed territory, organized for political ends under an independent government, and capable of entering into international relations with other states.

State v. Nation

A state is a legal concept, a nation is a racial or ethnic concept. The term nation as evidenced by its etymology (nasci, meaning to be born) indicates a relation of birth or origin and implies a common race, usually characterized a community of language and customs. A nation may comprise several states. Example: Arab nation. Or a state of several nations, i.e. the United States, Russia

Elements of a State

People: They must be a group of individuals, of both sexes, living together as a community. They must be sufficient in number to maintain and perpetuate themselves. Casual gathering of people being stranded or a community of pirates cannot constitute a state. Territory: That fixed portion on the earths surface occupied of the inhabitants. It may be as large as Russia or as small as Monaco with just 0.5 square mile in area or San Marino with just 38 square miles in area.

Government: is the agency through which the will of the state is formulated, expressed and realized. It must at least be organized and exercising control over and capable of maintaining law and order within the territory. The identity of the state is not affected by the changes in government.

Sovereignty: The supreme and uncontrollable power inherent in a state by which the state is governed. Meanwhile, independence, which is the power of the state to direct its own external affairs without interference or dictation from other states, is the external manifestation of sovereignty.

Other Suggested Elements of A State


Degree of Civilization Recognition from family of nations such as admission to the UN. It may also mean an act by which a state acknowledges the existence of another state, of another government or of a belligerent community indicating willingness to deal with the entity as such under international law.

Concept of Failing or Failed State

A state could be said to "succeed" if it a monopoly on the legitimate use of physical force within its borders. [Max Weber] A condition of state collapse i.e., a state that can no longer perform its basic security and development functions and that has no effective control over its territory and borders. [Crisis States
Research Center]

A failed state is one that can no longer reproduce the conditions for its own existence

Manifestations of a Failed State

Loss of physical control of its territory, or of the monopoly on the legitimate use of physical force therein; Erosion of legitimate authority to make collective decisions; Inability to provide reasonable public services, and Inability to interact with other states as a full member of the international community. [Fund for Peace,
Washington D.C.]

Indicators of State Vulnerability

Social: 1. Demographic pressures 2. Massive movement of refugees and internally displaced peoples 3. Legacy of vengeance-seeking group grievance 4. Chronic and sustained human flight Economic: 1. Uneven economic development along group lines 2. Sharp and/or severe economic decline Political: 1. Criminalization and/or delegitimization of the state 2. Progressive deterioration of public services 3. Widespread violation of human rights 4. Security apparatus as state within a state 5. Rise of factionalized elites 6. Intervention of other states or external factors

Concept of Disappearing or Deterritorialized States


Effect of sea level rise brought about by climate change. Theory of ambulatory baselines Arts. 5 & 7 UNCLOS provide on how to draw state baselines. Article 76(9) fixes the outer boundary of the extended continental shelf But does not indicate whether the outer boundary of maritime zones moves as baselines or the lowwater mark on which they are based move.

Where an island state is rendered uninhabitable by sea level rise, it would lose its exclusive economic zone and its continental shelf. Should the island disappear entirely, it would lose its territorial sea as well. These changes in maritime boundaries and zones may result to inter-state conflict or spark disputes over navigational rights and sovereign right over marine resources.

Preventive measures

Artificial conservation like shoreline protection, reinforcement and sea defenses which are allowed under international law. Example: Japans Okinotorishima island. Drawback: Cost and futility in fighting nature.

Legal solution for deterritorialized states


Abandon the ambulatory theory on baselines. Adopt a new rule in customary or conventional international law freezing the outer limits of maritime zones where they were located at a certain moment in accordance with the general rules in force at the time. Pre-existing disputes should not be covered with the freeze.

Dilemma in treatment of disappearing or disappeared states

Rule: existence of maritime zones depends on the existence of states. Traditional requirement: territory and permanent population occupying a states territory. Former maritime zones revert to the high seas or subsumed by other states where the law of the sea permits? States under threat: Papua New Guinea, Kiribati, Tuvalu, Maldives, Philippines and other island states.

Conventional solution to disappearing states


Acquire territory from other state through treaty of cession. Jurisdiction over maritime zones will continue to inure to the relocated state. Antecedents: Alaska and RP purchase by the U.S.; Evacuation by half of Iceland inhabitants to Canada aftermath of volcanic eruption in 1870. The new colony was named New Iceland. Drawbacks: price of cession & difficulty in envisaging states agreeing to such set-up; relationship between the host state and the acceded state like who would represent in international relations.

New Rule Evolving

Recognition of a new category of deterritorialized states. Based on the notion of functional or non-territorial sovereignty under the context of government in exile. Examples: Palestinian Authority; Indigenous nations of Maori, Inuit and Tibetans; Taiwan & EU.

State Capacity

Entity possessed with the essential elements is imbued with capacity as state; Entitles such entity to membership in the family of nations; Not ipso facto since recognition is deemed a political act; State capacity may not be total. It may be restricted due to treaty commitments or limited resources.

Examples: Switzerland as being ineligible for UN membership due to its permanent neutralization; Liechstentstein was barred from joining the League of Nations in 1920 owing to its limited size, small population, lack of an army, geographical position and deputation to other states of some of the attributes of sovereignty; also Andorra, Monaco and San Marino.

Liechstentstein

Andorra

Monaco

Classification of States

Independent States - Simple - Composite: Real Union, Federal Union, Confederation, Personal Union and Incorporate Union. Neutralized States Dependent States - Protectorate - Suzerainty

Simple State

A single and centralized government is established exercising power over both internal and external affairs of the state. Examples: Philippines, Netherlands, Japan

Composite State: Real Union


Two or more states are merged under a unified authority; A single international person is formed upon merger through which they act as one entity but retain their separate identities. Examples: Norway & Sweden [1815-1905], Austria & Hungary [1867-1918], and Egypt & Syria [1958-1961]

Composite States: Federal Union

Two or more sovereign states are combined and ceased to be states upon merger. A new state is created with full international personality. Examples: USA, Russian Federation, German Empire of 1871

Composite States: Confederation


Confederated states retain their internal sovereignty and to some degree, also their external sovereignty; A collective body is created to represent them as a whole for certain limited and specified purpose; Member states can still maintain international relations and retain their international personality although treated as imperfect states. Example: Confederation of German States in 1866

Composite States: Personal Union

Two or more states are brought together under the rule of the same monarch but the merged states does not become one international person. Each state remains a state and an international person but their external policies are directed by the same ruler Examples: Belgium and the former Congo Free State [1885-1905]

Composite States: Incorporate Union


Two or more states form a central authority to direct their external and internal affairs; It is distinguished from real union in that for the latter, only the external affairs of member-states are placed in a central authority. Example: United Kingdom of Great Britain and Ireland.

Neutralized States

One which by international agreement is bound to abstain from offensive hostilities and from acts which would involve such hostilities, in consideration of guarantee of its independence and integrity. Accorded upon a states own request because it is weak and small; or granted due to its geographical situation such that its occupation may upset the balance of power in that region.

Neutralization does not destroy the character of a state as such. Neutralized state can still enter into treaties involving peaceful relations. Generally, cannot resort to war except in self-defense. Examples: Switzerland [Congress of Vienna, 1815]; and Laos [1954 signed by 14 states]

Neutralized v. Neutral State

A neutralized state is one which by international agreement is bound to abstain from offensive hostilities and from acts which would involve such hostilities, in consideration of guarantee of its independence and integrity. Whereas, a neutral state is one which is not a party to the war. A neutralized state exists in time of peace and in time of war. Whereas, a neutral state exists only in time of war.

In case of neutralized state, the status of neutrality is guaranteed by explicit agreement of a limited number of powers, accompanied by a definite sanction and a corresponding obligation on the part of the neutralized state to remain as such; Meanwhile, in the case of neutral state, there are no specific guarantees, except the general rules of international law; there are no special sanctions but only the usual sanctions furnished thereby; and there is no obligation on the part of the neutral state to maintain its attitude of neutrality.

Dependent States

A legal oxymoron as statehood implies idea of independence. Considering their number and for want for better term, they are called as such. They are states subject to control by other states in their external affairs. Two categories: Protectorate & Suzerainty

Protectorate

In the American sense: A state whose complete independence is limited by the control of another, In its international sense: Originally means a state placed under the protection of another state by virtue of a treaty arrangement. Lately, refers to the territory of a country which although not a state in the strict international sense, remains nonetheless independent. Examples: In the American sense: Cuba and Panama; In its international sense: Republic of San Marino under Italy, Korea and Manchuoko under Japan before WW 2

Suzerainty

While a protectorate is established at the request of the weaker state for the protection of a strong power, In Suzerainty, it is the result of a CONCESSION from a state to a former colony which is allowed to become independent subject to the retention by the former sovereign of certain powers over the external affairs of the latter.

Vatican City

Area: 108.7 acres; Population: 900 Sovereignty exercised by the Holy See or the Supreme Pontiff [Pope]; Became state by virtue of the Lateran Treaty in 1929; Treated as such since it exercises certain prerogatives of states, e.g. treaty-making and diplomatic intercourse.

The European Union As Supranational Law


The European Union is a concept without definition. The world has never seen such a system. It is the first and only example of a near supra-national legal framework, where sovereign nations have pooled their authority through a system of courts and political institutions. It constitutes a new legal order in international law, designed to mitigate the issue of the differing legal frameworks of member states when dealing on a multinational basis.

Other International Persons


The UN The Holy See [See Holy See v. Del Rosario, 238 SCRA 524] Colonies and Dependencies Mandates and Trust Territories Association [Vide Prov. Of North Cotabato v. GRP Panel, G.R. 183591, Oct.
14, 2008]

Belligerent Communities International Administrative Bodies To some extent: Individuals

The United Nations: Historical Development


The League of Nations organized after WW 1 and dissolved in 1946; The London Declaration, June 12, 1941; The Atlantic Charter, Aug. 14, 1941; Declaration by United Nations, Jan. 1, 1942; Moscow Declaration, Oct. 30, 1943; Dumbarton Oaks Proposal, Washington, Aug. Oct. 1944; Yalta Conference, Crimea, Feb. 11, 1945; San Francisco Conference, Apr. 25 June 28, 1945 [delegates from 50 nations unanimously approved the UN Charter] Oct. 24, 1945: UN Charter came into force.

League of Nations

Founded as a result of the Treaty of Versailles in 19191920, a peace treaty that officially ended World War I between the Allied and Associated Powers and Germany ; League lacked armed force and so dependent on the so-called Great Powers

The London Declaration

June 12, 1941: several members of the British Commonwealth and a number of government-in-exile met. Declared to work together, and with other peoples, in war and in peace, toward economic and social development.

Atlantic Charter & Declaration By United Nations


Aug. 14, 1941 US Pres. Franklin Delano Roosevelt and UK Prime Minister Winston Churchill signed the Atlantic Charter. It expressed their hope for a peace which will afford to all nations the means of dwelling in safety within their own boundaries and which will afford assurance that all men in all lands may lead out their live in freedom from fear and want. The foregoing principle was later embodied in the Declaration by United Nations signed on Jan. 1, 1942 by 26 countries and later adhered to by 21 other countries.

Moscow Declaration

First step toward creating the UN; Signatories: China, USSR, UK & US; Date: Oct. 30, 1943 Recognized the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of international peace and security.

Dumbarton Oaks Proposals

Initial blueprint of the UN prepared during the conference at Washington DC between Aug. Oct. of 1944. Participated in by the UK, USSR, US and later joined by China. Conceived the idea of forming the Security Council composed of the (5) conferees plus France as its permanent members.

Yalta Conference in the Crimea


February 11, 1945: Voting rules in the Security Council known as the Yalta Formula were agreed upon. The conferees also called a general conference to be held at San Francisco on April 25, 1945 for the preparation of the UN Charter along the lines proposed in the informal conversations at Dumbarton Oaks.

San Francisco Conference


Attended by (50) nations between Apr. 25 to June 26, 1945. Prepared and unanimously approved the charter of the UN. Charter came into force on Oct. 24, 1945 after the members of the Big Five and majority of the other signatories filed their instruments of ratification.

The UN Charter

Composed of the Preamble, (111) Articles and Concluding provisions. Annexed in the charter is the Statute of the ICJ. Dual character of the charter: As a treaty because it derives its binding force from the agreement or the parties to it. As a constitution because it provides for the organization and operations of the different organs of the UN and the adoption of any change in its provisions through a formal process of amendment.

Applicable to the members as well as non-member states, insofar as necessary for the maintenance of international peace and security. Charter superior than other treaties. Art. 103: In the event of a conflict between the obligations of the members of the UN under the present charter and their obligations under any other international agreement, their obligation under the present charter shall prevail.

Procedure in Amending UN Charter

Amendment resolution shall be adopted by a vote of 2/3 of the members of the General Assembly; and Ratified in accordance with their respective constitutional processes by 2/3 of the members of the UN, INCLUDING ALL THE PERMANENT MEMBERS OF THE SECURITY COUNCIL.

Preamble
DETERMINED: To save succeeding generations from the scourge of war; To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained; and To promote social progress and better standards of life in larger freedom,

AND FOR THESE ENDS: To practice tolerance and live together in peace with one another as good neighbors, and To unite our strength to maintain international peace and security, and To ensure, by the acceptance of principles and the institution of methods that armed force shall not be used, save in the common interest, and To employ international machinery for the promotion of the economic and social advancement of all peoples,

HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS: Accordingly, our respective Governments, through representatives assembled in the City of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization known as the United Nations.

Purposes of the UN

To maintain international peace and security; To develop friendly relations among nations; To achieve international cooperation; To be a center for harmonizing the actions of nations in the attainment of these common ends.

Principles of the UN

Sovereign Equality Pacta Sunt Servanta Amicable Settlement of Disputes Outlawry of War Requiring members assistance to UN and refrain assisting states against the UN Ensuring non-members to act in accordance with the UN principles Domestic jurisdiction clause

Membership to the UN

ORIGINAL Those states who participated in the UN Conference on International Organization at San Francisco or have previously signed the Declaration by the United Nations of January 1, 1942. Although not yet states at the time of the signing, the Philippines, India, Lebanon and Syria were included as original members.

ELECTIVE Those states admitted to the UN by decision of the General Assembly after favorable recommendation of the Security Council. Eligibility for admission: Must be a state; Must be peace-loving; Must accept the obligations of the charter; Must be able to carry out these obligations; and Must be willing to carry out these obligations.

Suspension of UN Members

2/3 vote of those present and voting in the General Assembly; Favorable recommendation by at least 9 members of the Security Council, including the 5 permanent members; and May be lifted only by the Security Council by a qualified majority.

Expulsion of UN Members

Must have persistently violated the principles in the Charter; By 2/3 vote of those present and voting in the General Assembly; Upon recommendation by the Security Council by qualified majority;

Withdrawal of Members

No express provision; But according to authorities in IL, a member may withdraw if: The UN was revealed to be unable to maintain peace or could do so only at the expense of law and justice; The members rights and obligations as such were changed by a Charter amendment in which it had not concurred or which it finds itself unable to accept; or An amendment duly accepted by the necessary majority either in the General Assembly or in a general conference is not ratified. Only one instance of withdrawal: Indonesia in 1965 but resumed its seat after the overthrow of Sukarno.

Six (6) Principal Organs of the UN


General Assembly The Security Council The Economic and Social Council The Trusteeship Council The International Court of Justice The Secretariat

The General Assembly


Consists of all members; Each member entitled to not more than five (5) representatives with five (5) alternates; Regularly meets annually beginning on the 3rd Tuesday of September each year or by special session called by majority of its members or at the request of the Security Council; Each member entitled to one (1) vote; Important questions are decided by 2/3 of those present and voting; All other matters, including determining whether the question is important, by majority of those present and voting.

Functions of the General Assembly

Deliberative making studies and recommendations on the development of IL and its codification; recommending measures for peaceful adjustment of any situation likely to impair the general welfare or friendly relations among nations. Supervisory Treating reports submitted by other organs; approving trusteeship agreements in non-strategic areas.

Financial Approval of budget; apportionment of expenses among its members; and approval of financial arrangements with specialized agencies. Elective Election of non-permanent members of the Security Council; of all members of the ECOSOC. Constituent admission of members and amendment of UN charter.

The Security Council


Key organ in the maintenance of inter-national peace and security; Composed of five (5) permanent members: China, France, UK, Russia and US and ten (10) non-permanent members: five (5) from African and Asian states, two (2) from Latin American states, two (2) from Western European and other states, and one (1) from Eastern European states. Non-permanent members elected for 2-year term by the GA; not eligible for immediate re-election.

Voting in The Security Council


The Yalta Formula: Each member entitled to one (1) vote; On substantial questions (non-procedural): Affirmative vote of nine (9) members required, including all the five (5) permanent members; A permanent member may veto on any non-procedural matter to prevent its passage;

On procedural questions: Affirmative vote of nine members or more; But determining whether a question is procedural or not is a non-procedural matter; Hence, any permanent member may veto on such determination or on the substantial question when raised. So-called as the double veto rule.

The Economic and Social Council


Composed of fifty four (54) members with one vote each; All elected by the GA; Term of three (3) years with immediate re-election; Staggered terms so as to provide for replacement or re-elections of 1/3 of the body every year.

Mandates of The ECOSOC


Exert efforts toward: Higher standards of living, full employment and conditions of economic and social progress and development; Solutions of international economic, social, health and related problems, and international, cultural and educational cooperation; and Universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

Subsidiary Organs of The ECOSOC


Subsidiary: Commission on the Status of Women The different Regional Economic Commissions for Europe, Asia and the Far East, and Latin America Collaborative with: International Monetary Fund; and International Trade Commission

The Trusteeship Council


Administration of the International trusteeship system; Composed of: a) the members of the UN administering trust territories, b) the permanent members of the SC not administering trust territories; and c) other members as necessary and elected by the GA for a 3-year term .

The International Court of Justice


Judicial organ of the UN; All members of the UN ipso fact parties to the Statute. A nonmember can become party upon approval by the GA after favorable recommendation of the SC; Court composed of fifteen (15) members [judges].

Qualifications/Restrictions in the Election of ICJ Judges


Must be of high moral character; Possesses the qualifications required in their respective countries for appointment to their highest judicial offices; or Jurisconsult of recognized competence in international law; Not two judges may be nationals of the same state; In such event the more than one national of the same state obtain the required majorities, only the eldest shall be considered as elected. Term: nine (9) years subject for re-election. Staggered terms so that 1/3 of the membership at 3-yr interval.

The Court to elect President and Vice-President to serve for 3 years with re-election. To remain in session at the Hague or elsewhere, except during judicial vacations; May either meet en banc or in chambers composed of 3 or more judges when dealing with cases on labor, transit and communications. Decision is by majority of the judges present; Quorum is 9 when full court is sitting. President of ICJ: Rosalyn Higgins of the UK.

ICJ to decide contentious cases Render advisory opinions; Jurisdiction is based on the consent of the parties under the optional jurisdiction clause of the Statute (Art. 360) and comprises all cases that parties have referred to it and all matters especially provided for in the Charter or in treaties and conventions in force; Advisory opinions on legal question arising within the scope of their activities are given upon request of the GA or the Security Council and other organs of the UN when authorized by the GA.

The Secretariat

Chief administrative organ of the UN; Headed by the Secretary-General who is chosen by the GA upon recommendation of the Security Council; Term of the SG: five (5) year subject to re-election; SG is the highest representative of the UN, authorized to act in its behalf and entitled to full diplomatic immunity. He may waive the immunities and privileges of other key-officials of the UN

Colonies & Dependencies


Under IL, a colony or dependency is part and parcel of the parent state, hence no legal standing ; However, there were such entities given recognition to participate in international affairs and granted de facto status as sovereign state. Hence, when acting in such manner, colonies and dependencies are treated as international persons. Example: India when still colony of Great Britain was allowed membership in the League of Nations and signed as charter member of the UN. The Philippines also while still colony of the US.

Colony a dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit another country. Dependency a territory distinct from the country in which the supreme sovereign power resides, but belongs rightfully to it, and subject to the laws and regulations which the sovereign may prescribe.

Mandates and Trust Territories

Mandates are former territorial possession of states defeated in World War I and placed under the control of the League of Nations. Many of the mandates became Trust Territories placed under the Trusteeship Council of the UN. Trust Territories those territories placed under the Trusteeship Council.

Three Types of Trust Territories: a) Those held under mandate under the League of Nations, b) Those territories detached from the defeated states after World War II; and c) Those voluntarily placed under the system by the states responsible for their administration. Condominium a term used in describing a territory jointly administered by two states.

Association

[Prov. Of North Cotabato v. GRP Panel, G.R. 183591, Oct. 14, 2008]
An association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. In international practice, the associated state arrangement has usually been used as a transitional device of former colonies on their way to full independence

Example of An Association

Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands are associated states of the U.S. pursuant to a Compact of Free Association. The former Trust Territory of the Pacific Islands is made up of the Caroline Islands, the Marshall Islands, and the Northern Mariana Islands, which extend east of the Philippines and northeast of Indonesia in the North Pacific Ocean.

The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership. According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations.

The U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on matters relating to or affecting either government. In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military areas and facilities within these associated states and has the right to bar the military personnel of any third country from having access to these territories for military purposes.

Other Examples of Associated States


Antigua St. Kitts-Nevis-Anguilla Dominica St. Lucia St. Vincent and Grenada Note: All of the above have since become independent states

Concept of Association Not Recognized in the Philippines

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an associative relationship with the national government. The concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government and implies the recognition of the associated entity as a state. The Constitution does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.

Belligerent Communities

That portion of the population which rises up in arms against the legitimate government of the state when such upheaval or conflict widens and aggravates. While not being conferred with all the rights of an independent state, the recognizing state concedes to the belligerent government recognized rights and imposes upon the obligations of an independent state in matters relating to the war being waged.

Conditions for Recognition of Status of Belligerency


Must have an organized civil government with control and supervision over the armed struggle; The conflict must be serious and widespread with the outcome uncertain; It must have occupied a substantial portion of the national territory; and It must be willing to observe the rules and customs of war. Note: Any lacking requisite will make the struggle merely an insurgency without any legal personality in international law.

Effects of Recognition of Belligerency


Responsibility for acts of rebels resulting in injury to nationals of the recognizing state shifted to the rebel government; The legitimate government recognizing the rebels must observe the laws of war in conducting the hostilities; Third states recognizing the belligerency shall maintain neutrality; and Recognition is only provisional, e.g. for the duration of the armed struggle, and only for the purpose of the hostilities.

International Administrative Bodies

Certain administrative bodies, created by agreement among states, may be vested with international personality, provided that they are: a) non-political, b) autonomous, and c) not subject to control by any state. Examples: ILO, FAO, WHO, IMF, European Commission of the Danube, Central Commission for the Navigation of the Rhine.

Individuals
Traditionally, only considered as objects. But presently, a number of international agreements grant a certain degree of international personality to individuals. Examples: UN Charter provision on faith in fundamental human rights, dignity and worth of the human person, and in the equal rights of men and women; Universal Declaration of Human Rights provision on the inherent dignity and the equal and inalienable rights of all members of the human family;

Some treaties, e.g. Treaty of Versailles, which confer on individuals the right to bring suit against States before national or international tribunals; The need for States to maintain an International Standard of Justice in the treatment of aliens; The Genocide Convention which condemns the mass extermination of national, ethnic, racial or religious groups; The 1930 Hague Convention with its rules to prevent the anomalous condition of statelessness;

The 1954 Covenant Relating to the Status of Stateless Persons which grants stateless individuals certain basic rights; and The 1950 European Convention on Human Rights and Fundamental Freedoms, which grants private associations and individuals the right to file complaints before the European Court on Human Rights.

Modes in Creating a State


Revolution (e.g. U.S.) Unification (e.g., Unification of City States of Sardinia, Florence, Naples, Rome, etc. in 1870 to become the state of Italy) Secession (e.g.,Bangladesh which seceded from Pakistan in 1971) Assertion of Independence (e.g., The Philippines) Agreement (e.g., Netherlands created by Congress of Vienna of 1815 & Poland, which was revived as a separate state by agreement of the Allied Powers after World War II) Attainment of Civilization (e.g., Japan)

Principle of State Continuity

Once its identity as an international person has been fixed and its position in the international community established, the state continues to be the same corporate person whatever changes may take place in its international operation and government. Otherwise put: The change in the government of the state, the number of its people or its area does not affect the international personality of the state unless such change in the number of people or area thereof is such as to make it impossible to maintain the staate.

The Sapphire Case


Facts: Louis Napoleon, as Emperor of France, filed in a California Court a civil claim for damages in connection with a collision between the French vessel Eurayale and the Sapphire. He was subsequently deposed while the case was pending. Held: The reigning sovereign represents the national sovereignty, and that sovereignty is continuous and perpetual residing in the proper successors of the sovereign for the time being. Napoleon was the owner of the Euralyle, not as individual, but as sovereign of France. On his deposition the sovereignty does not change, but merely the person in whom it resides.

Extinguishment of a State

Merger Dissolution Deprivation of freedom to direct its external affairs leading to partial loss of international personality; Radical impairment or actual loss in one or more of its essential elements (ex. Extermination or En masse emigration of the populace)

Succession of States

Rule: The change in the government of a state, the number of its people or its area does not affect its international personality, unless such change in the number of people or area is such as to make it impossible to maintain the state. The state remains as a person in international law, with all its rights and obligations.

Extinguishment of a State

Disappearance of one or more of the essential elements; Annexation, whether voluntary or forcible, into another state; Division into two or more states; and Incorporation into a federal union.

State Succession Defined

Means the substitution of one state for another, the former assuming the rights and obligation of the latter. It may be universal or partial succession. It arises in the event a state is extinguished or created under the modes already discussed.

Classification of State Succession


Universal Succession When the international personality of the state succeeded to is completely absorbed by the successor. Examples: Forcible or voluntary annexation of a state to another, Division of a state into two or more states Entrance of a state into a federal union.

Partial Succession When the succeeding state acquires only a portion of the territory of another state. Examples: In the case of conquest followed by cession; In the emergence of a new state on the foundation of a revolting territory.

Effects of State Succession


When Entire State is Annexed When only a portion of Territory is separated from another and a new state is erected Transfer of Sovereignty.

1. Effects When Entire State Is Annexed

A. Upon treaties: Political treaties abrogated while treaties of territorial or transitory nature remain and binding on absorbing state; Executory Treaties like that of extradition and of amity, etc. are wiped out and third states lose whatever benefits they have under such.

B. Upon Public Debts: General Rule: Public debts are assumed by the absorbing state. Exception: Annexation by conquest and public debts were incurred for the prosecution of the war; and War arose because of the transactions resulting in the incurring of the public debts.

C. Upon public property: Absorbing state succeeds into all public property and acquiring all rights therein. But subject to charges or burdens resting upon the property under the doctrine of Res transit cum suo onere.

D. Upon obligations with private persons:


General Rule: Obligations of the annexed state towards private person should be respected. Exceptions: Worthless obligations of an insolvent state annexed without recourse by a solvent state which cannot be converted into valuable ones by the latter; Justifiable refusal by the annexing state to obligations incurred by the annexed state for the purposes of war against it; Private rights which caused or contributed to the war which resulted to annexation.

E. Upon Private Rights: Protection of private rights is obligatory upon the new sovereign. Transfer of allegiance of subjects operate ipso facto unless otherwise provided in a treaty or the people withdraw from the territory and resettle elsewhere.

2. Effects When Only Portion Of Territory Is Separated and New State Established

A. Upon Treaties: Treaties of the mother state continue to be binding upon itself, unless by their nature and connection with the separated territory they must naturally fall.

B. Upon Public Debts: Mother state continues to be bound even if they were incurred on account of the separate state. Exception: Agreement between the mother state and the separate state relieving the former.

C. Upon Public Property:

The new state succeeds to all the public property found in the territory.

D. Upon obligations with Private Persons: The obligations of the territory with private persons are in general respected. Exception: Those that are personal to the displaced sovereign.

3. EFFECTS IN THE CESSION OF A TERRITORY

A. Upon Private Property: No effect on private property rights. The cession is necessarily understood to pass the sovereignty only, and not to interfere with private property.

B. Upon Treaties of the Ceding State: General Rule: The obligations of the ceding state in the treaty continue. Exception: Treaties in respect to the territory annexed abrogated if political in character. Exception to exception: Treaties which are transitory or territorial in character continue.

C. Upon Public Debts of Ceding State Incurred Over Such Territory: Unless assumed by the annexing state in the annexing treaty, the public debts of the ceding state incurred over such territory remain with the ceding state.

D. Upon Public Obligations of the Ceding State: Public obligations of the ceding state over such territory, if territorial, are assumed by the acquiring state. Contracts relating to the public property within the acquired territory, entered into by the former sovereign, are usually acknowledged by the new sovereign upon proof that the claims are just and equitable, although no mention is made in a treaty of cession confirming the transfer.

E. Upon Allegiance Of The People In the Ceded Territory: Allegiance to former sovereign is dissolved and the inhabitants will now owe allegiance to the new sovereign, unless they withdraw from the state. Their relations with each other remain unchanged.

F. Upon Property Rights and Other Private Rights of the People In the Ceded Territory: Property rights and other private rights of the people therein remain unaffected.

4. Effects In The Transfer of Sovereignty

The allegiance to the old sovereign is dissolved. Inhabitants will now owe allegiance to the new sovereign, unless they withdraw from the state. Their relations with each other remain unchanged.

People v. Perfecto, 43 Phil. 887


Held: The political laws of the former sovereign are automatically abrogated and may be restored only by a positive act on the part of the new sovereign. However, non-political laws, such as those dealing with familial relations, are deemed continued unless they are changed by the new sovereign or are contrary to the institutions of the successor state.

SUCCESSION OF GOVERNMENTS

Integrity of the state is not affected. It continues as the same international person, except only that its lawful representative is changed. Rights of the predecessor government are inherited in toto by the successor government. Obligations are assumed, if the new government was organized constitutionally. Otherwise, purely personal or political obligations of the predecessor government may be rejected.

U.S. (For George W. Hopkins) v. Mexico [1927]


Held: Debts incurred by the old government for the purchase of military equipment used against the new government may be disowned. On the other hand, postal money orders purchased from the old government in the ordinary course of business must be honored by the new government.

Chapter 6 RECOGNITION

Recognition Defined

It is an act by which a state acknowledges the existence of: - Another state; - A government; or - A belligerent community Indicating its willingness to deal with the entity as such under the rules of international law.

Theories on Recognition

Declaratory That recognition merely affirms an existing fact such as the possession by the state of all its essential elements, and that it may be granted or withheld at pleasure. Constitutive That recognition is compulsory or legal and that it is the very act of recognition that constitutes the recognized entity into an international person and that such act may be compelled once the elements of international personality are established.

Power to Recognize

Under Art. VII of the 1987 Constitution, it is the President who is given the authority to send and receive diplomatic representatives, to enter into treaties, to establish blockades, and in general to act as the foreign policy spokesman of the nation.

Forms of Recognition

Express: By way of formal proclamation or announcement, whether verbal or in writing, and through a stipulation in a treaty, a letter or on the occasion of an official call or conference. Implied: When recognizing state and recognized state enter into a treaty regulating their relationship in general or when they exchange diplomatic representatives. In case of a belligerent community: when it blockades a port held by the recognized belligerent or by observing neutrality in the conflict.

Recognition of States

A free act of a state by which it acknowledges the existence on a definite territory of a human society politically organized, independent of any existing state, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.

Recognition of Governments

A manifestation of the recognizing state that it is ready and willing to deal with the recognized government as the highest organ acting for and in behalf of a particular state. It is important since, as a rule, a state cannot have any official intercourse with another where its government is not recognized. Unless recognized, such government is without standing in the courts of another state. There is no legal right of a new government to be recognized or a legal duty of one state.

Recognition of State v. of Govt

Recognition of state includes the recognition of government since the latter is an essential element of the former. Recognition of a government does not necessarily signify the existence and recognition of a state as such government may not be independent. Recognition of state is generally irrevocable. Recognition of a government may be withdrawn.

Kinds of De Facto Governments

Those established by the inhabitants who rise in revolt against and depose the legitimate regime. Example: Commonwealth of Cromwell which supplanted the monarch under Charles I of England; Those established in the course of war by the invading forces of one belligerent in the territory of the other belligerent. Example: Japanese occupation government; and Those established by the inhabitants of state who secede therefrom without overthrowing its government. Example: Confederate government of America.

Doctrines on Recognition of Governments


Tobar-Wilson Estrada Stimson

Tobar-Wilson Doctrine

A doctrine that precludes recognition of any government established by revolution, civil war, coup d etat or other forms of internal violence until the freely elected representatives of the people have organized a constitutional government. First expressed in the 1907 Central American Republics at the suggestion of Foreign Minister Tobar of Ecuador and reiterated by President Woodrow Wilson of the US in a public statement made in 1913.

Stimson Doctrine

Precludes the recognition of any government established as a result of external aggression. Formulated by US Secretary of State Stimson in 1932. Adopted by the League of Nations through a resolution stating that: It is incumbent upon the members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris

Estrada Doctrine

The diplomatic representatives in a country where a political upheaval has taken place will deal or will not deal with whatever government is in control at the time and either action shall not be taken as a judgment on the legitimacy of the said government. Attributed to Foreign Minister Genaro Estrada of Mexico. Example: Recognition of PROC based on the one china policy

Recognition of De Facto Govt v. De Jure Govt


Recognition de jure is relatively permanent; de facto provisional. Recognition de jure vests title to the properties of the government abroad; recognition de facto does not. Recognition de jure results to full diplomatic relations; recognition de facto is limited to certain juridical relations.

Effects of Recognition of States and Government


Full diplomatic relations are established except where the government recognized is de facto. The recognized state or government acquires the right to sue in the courts of the recognizing state. The recognized state or government is entitled to the possession of the properties of its predecessor in the territory of the recognizing state.

All acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own courts Note: Non-suability of a state connotes recognition. Reason: Whether a government is recognized or not, it still enjoys immunity from suit in a foreign jurisdiction.

Oetjen v. Central Leather Co., 246 U.S. 297


Facts In the course of the revolution in Mexico in 1913, General Pancho Villa as commander of the North under General Carranza against General Juerta who had declared himself provisional president after the assassination of Madero, President of Mexico seized certain hides belonging to Martinez for the latters failure to pay his share of the contributions levied in the area. At the time of the seizure, the Carranza Government controlled about 2/3 of Mexico but the U.S. did not recognize any government at the time.

Gen. Carranza sold the hides to Finnegan Brown Co., a Texas corporation, which in turn sold it to Central Leather Co. The hide were later shipped to New Jersey where they were subject to replevin in favor of Oetjen, the assignee of Martinez & Co. During the course of the trial, the U.S. Government recognized the Carranza Government as a de facto government on October 19, 1915 and later on August 31, 1917 as the de jure government of Mexico.

Held: When a government which originates in revolution or revolt is recognized by the political department of the government as the de jure government of the country in which it is established, such recognition is RETROACTIVE in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence.

That the conduct of one independent government cannot be successfully questioned in the courts of another for to permit the validity of the acts of one sovereign state to be reexamined and perhaps condemned by the courts of another would very certainly imperil the amicable relations between the governments and the peace of nations. The seizing and selling of the hides in question was an action of the legitimate Mexican government when dealing with a Mexican citizen, and upon soundest reasons, was not subject to re-examination and modification by the courts.

Underhill v. Hernandez,168 U.S. 250


Facts: In the course of a revolution in 1892 against the administration in Venezuela, General Hernandez, supporting the anti administration forces under the leadership of Crespo, entered Bolivar and assumed control over the city as its civil and military chief. Underhill was US citizen who constructed a waterworks system for the city of Bolivar under a contract with the government and was engaged in supplying the city with water.

He applied to General Hernandez, as the officer in command, for a passport to leave the city. General Hernandez refused at first. But after requests made by others in Underhills behalf, he issued a passport on October 18, 1892. An action was filed in the US to recover damages for the detention of Underhill. On October 23, 1892, the Crespo government was formally recognized by the U.S. as the legitimate government of Venezuela.

Held: The acts complained of were the acts of a military government representing the authority of the revolutionary party as a government, which afterwards succeeded, and was recognized by the US. In the case of a civil war, it the party seeking to dislodge the existing government succeeds, and the independence of the government it has set up is recognized, the acts of such government, from the commencement of its existence, are regarded as those of an independent nation.

Every sovereign state is bound to respect the independence of every other sovereign state. The court of one country will not sit in judgment on the acts of another, done within its territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

Republic of Peru v. Dreyfus Brothers, 1888


Held: If a de facto government set up by overthrowing the existing government becomes a de jure government through recognition, and later on it is in turn overthrown by a succeeding revolution which returns the old government, the obligations incurred by it remain binding upon the state.

Russian Socialist Federated Soviet Republics v. Jacques R. Cibrario, 235 N.Y. 255
Held: An unrecognized government could not and should not be permitted to sue in the US. Permission to a foreign government to sue in the courts of another is based upon comity, in the absence of a treaty. But until said government has been recognized, no such comity exists. The Plaintiff concededly has not been so recognized. There is, therefore, no proper party before us. Recognition, and consequently, the existence of comity, is purely for the determination of the legislative or executive department of the government. Who is the sovereign of a territory is a POLITICAL QUESTION.

Max Wulfsohn, et al. v. Russian Socialist Federated Soviet Republics, US CA of New York, 1923
Held: To cite a foreign potentate into a municipal court for any complaint against him in his public capacity is contrary to the law of nations and an insult which he is entitled to resent. This applies whether recognized or not. In either case, to do so would vex the peace of nations; the hands of the sate department would be tied.

Unwillingly it would find itself involved in disputes it might think unwise. Such is not the proper method of redress if a citizen of the US is wronged. The question is a POLITICAL ONE, not confided to the courts but to another department of the government. Wherever an act done by a sovereign in his sovereign character is questioned, it becomes a matter of negotiation, or of reprisals or of war.

Existence of Belligerency
A belligerency exists when the inhabitants of a state rise up in arms for the purpose of overthrowing the legitimate government. Distinguished from insurgency: Insurgency is the initial stage of belligerency; belligerency is more serious and widespread. Insurgency is directed by military authorities; belligerency is under a civil government. Insurgency is usually not recognized; whereas there are settled rules relating to recognition of belligerency.

3 Stages of Internal Dissension


Simple lawlessness Insurgency Belligerency Note: When a simple lawlessness spreads and develops into with a political motivation, it becomes an insurgency. An aggravation of insurgency is a belligerency.

Recognition of Belligerency
When the conflict widens and aggravates, it may be necessary, for practical reasons, to consider the formal recognition of the belligerent community. Conditions: There must be an organized civil government directing the rebel forces; The rebels must occupy a substantial portion of the territory of the state; The conflict between the legitimate government and the rebels must be serious, making the outcome uncertain; and The rebels must be willing and able to observe the laws of war.

Consequences of Recognition of Belligerency


When recognition is extended by the parent state: The Belligerent community is considered a separate state for purposes of the conflict. Their relations shall be governed by the laws of war and their relations with other states governed by the laws of neutrality. Troops of either belligerent, when captured, shall be treated as prisoners of war.

The parent state shall no longer be liable for any damage that may be caused to third states by the rebel government. Both belligerents can exercise the right of visit and search upon neutral merchant vessels. The rebel government is accorded full war status (same with the legitimate government) as regards all other states. It may establish blockades, maintain prize courts and take other allowable war measures

When recognition is extended only by third states: All consequences as enumerated are effective only as to them, i.e. the recognizing 3rd state and the belligerent community. Do not bind other state not extending recognition.

FUNDAMENTAL RIGHTS OF STATES


Right of existence and Self-Defense Right of Sovereignty and Independence Right of Equality Right of Territorial Integrity Right of Jurisdiction Right of Diplomatic Intercourse

Chapter 7 RIGHT OF EXISTENCE AND SELF-DEFENSE

Right of Existence and Self Defense


Most important state right. Most comprehensive of the attributes of the state. All other rights are supposed to flow or derived from it. State may take such measures, including the use of force to resist any danger to its existence. Such action being the exercise of an inherent right, does not depend for its validity on the previous recognition of the state asserting it or on the consent of other states.

Requisites On The Exercise of Right of Self Defense

Art. 51, UN Charter: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if any armed attack occurs against a member of the UN, until the Security Council has taken the measure necessary for the maintenance for the maintenance of international peace.

Right of existence and self-defense is the most comprehensive of all other rights of a state, as the latter accordingly flow from it. In the exercise of this inherent right, the state may take such measures, including the use of force, as may be necessary to counteract any danger to its existence.

Limitation of the exercise of right of existence and self-defense

Any forcible measure taken in the exercise of the right must be justified by a necessity of self-defense instant, overwhelming, and leaving no choice of means and no moment for deliberation. Mere apprehended danger or any direct threat to the state does not, by itself alone, warrant the employment of any force against a suspected or potential enemy.

The best defense is offense Policy


US Secretary Elihu Root (1914): The exercise of the right of self-protection may and frequently does extend the limits of the territorial jurisdiction of the state exercising it. The strongest example would be the mobilization of an army by another power immediately across the frontier. Every act done by the other power by be within its territory. Yet the country threatened by the state of facts is justified in protecting itself by immediate war.

Grotius: Equity was entirely opposed to the idea that the possibility of being attacked gives us the right to attack on our part; It was only when there was just ground war on other counts that the growing strength of a rival might properly influence a decision to go to war.

Examples of Actual Exercise of Right of Self-Defense


Russian mobilization in 1914 which was answered with a declaration of war by Germany on the ground of self-defense. Great Britains seizure in 1807 of the Danish fleet in order to prevent it from falling into the hands of the France whom it was at war. Japans invasion of Korea in 1904 to prevent Russia from taking over the territory. Russian attack of Finland in 1939 meant as a strategic measure to defend itself from an anticipated German invasion.

The Cuban Missile Crisis

US established a quarantine over Cuba in 1962 upon order of Pres. JFK. Aimed to prevent the delivery of prohibited material to Cuba by the employment of US land, sea and air forces. All vessels proceeding toward Cuba were subject to interception and their cargo inspected, invoking the right of visit and search. USSR back down and WWIII averted.

Regional Arrangements on Collective Self-Defense


Organization of American States North Atlantic Treaty Organization Warsaw Pact (defunct) South East Asian Treaty Organization (defunct) Note: Collective self-defense arrangements is recognized under Art. 51 of the UN Charter and in Art. 52, Sec. 1.

Anticipatory Self-Defense

The Caroline Incident

In 1837 a group of men led by William Lyon Mackenzie, a Canadian journalist and insurgent leader, rebelled in Upper Canada (now Ontario), demanding a more democratic government. There was much sympathy for their cause in the United States, and a small steamer, the Caroline, owned by U.S. citizens, carried men and supplies from the U.S. side of the Niagara river to the Canadian rebels on Navy Island just above Niagara Falls. As night fell on December 29, 1837, a small British force crossed the Niagara River from Canada into New York.

Their mission: Destroy the American steamboat Caroline, which had been carrying supplies to a group of Canadian insurgents. The Caroline was boarded, fired, and set drifting downriver, towards the Falls. At least one U.S. citizen was killed, several were wounded, and the U.S. came close to war with Britain. From this incident sprung the so-called Anticipatory Self-Defense doctrine or rule.

The Rule of ASD

Described in the correspondence between Britain's Lord Ashburton and America's secretary of state Daniel Webster over the Caroline incident: A state need not absorb an enemy's attack, but may anticipate it and lawfully strike first. Circumstances in which the doctrine properly applies: a) Where the need is instant, overwhelming; b) It leaves no choice of means and no moment for deliberation; and c) Proportionality

Justified Exercise ASD

The State which seeks to rely upon the doctrine has sought to use international mechanisms, through both the United Nations, and other international organizations including relevant regional organizations, to peacefully settle the dispute. The State which seeks to rely upon the doctrine has exhausted all available and practical legal means to settle the dispute.

The State is responding to an overwhelming and clear threat and intention to use force by another State, an agent of the State, or from terrorists sponsored or supported by the State. The State when seeking to exercise the right adheres to the principles of necessity and proportionality and other relevant provisions of international law, including international humanitarian law. The State exercising the right immediately reports the matter to the United Nations Security Council for its further action.

Balance of Power
An arrangement of affairs so that no state shall be in a position to have absolute mastery and dominion over others. Examples on application of the doctrine: Congress of Vienna of 1815 Congress of Berlin of 1878 Triple Alliance and Triple Entente before WWI Allied and Axis Powers during WWII NATO Warsaw Pact

Aggression

It is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any other manner inconsistent with the U.N. Charter. (Resolution of the GA, Dec. 14, 1974)

Acts of Aggression

Invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another state or part thereof. Bombardment by the armed forces of a state against the territory of another state. Blockade of ports or coasts of a state by the armed forces of another state. Attack by the armed forces of a state on the land, sea or air forces, or marine and air fleet of another state.

Use of armed forces of one state which are within the territory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement. Action of a state in allowing its territory, which it has placed at the disposal of another state, to be used by the other state for perpetrating an act of aggression against a third state. Sending by or on behalf of a state of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein.

Effects of Aggression

Not consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.

Conditions In The Proper Exercise of Right of Self-Defense


There must be an armed attack. Self-defensive action taken by the attacked state must be reported immediately to the Security Council. Such action shall not in any way affect the right of the Security council to take at any time such action as it deems necessary to maintain or restore international peace and security. Note: Exercise of right available to all state, whether a UN member or not.

Chapter 8 RIGHT OF INDEPENDENCE & SOVEREIGNTY

Independence v. Sovereignty

Independence: It is the right of a state to manage all its affairs, whether internal or external, without control from other states. (It is the external manifestation of sovereignty.) Sovereignty: It is the supreme power of the state to command and enforce obedience, the power to which, legally speaking, all interests are practically subject and all wills subordinate. (It refers to the supreme and uncontrollable power inherent in the state by which such state is governed.)

Essential Attributes of Sovereignty


Perpetuity Comprehensiveness Exclusiveness Absolutism Inalienability; and Unity

Nature of Independence

It is not absolute; subject to restrictions that are binding upon all states, such as: Non-employment of force or threat of force of a state in its relations with other states (Art. 2, UN Charter); Observance of pact sunt servanta; Not arrogating unto itself the exclusive use of the open seas to the detriment of other states under the principle of mare liberum;

Not to reject certain rules that directly impair its freedom of action such as those imposed upon neutrals with respect to belligerent rights; and Maintenance of such rules as the maintenance of the international standard of justice, observance of basic human rights, and the exemption from its jurisdiction of certain persons and property under the principle of ex-territoriality and extra-territoriality.

Correlative Duty of the Right of Independence

Every state is under the correlative obligation of nonintervention in view of its own independence. Even as it expects its independence to be respected by other states, so too must it be prepared to respect their own independence.

Intervention

It is an act by which a state interferes with the domestic or foreign affairs of another state through the use of force or threat of force. Intervention is justified if in pursuance to exercise of right of selfdefense or when undertaken by the Security Council for the maintenance of international peace and security, as a measure against oppression, and on humanitarian.

Classes of Intervention

Internal: Interference by one state, between disputing sections of the community in another state, the matter of dispute being usually but not necessarily some constitutional change. External: Interference in the relations, generally hostile, of other states. Punitive: Adoption of punitive measures by one state against another in order to compel the latter to observe its treaty engagements or to redress some breach of law which it has committed.

Some Grounds Used to Justify Intervention


Intervention for self-preservation To maintain conditions necessary for the existence of international relations To carry out treaty stipulations To preserve balance of power Intervention by general sanction Intervention on the ground of humanity and religion.

Contemporary Examples of Intervention Based on Self-Defense


U.S. quarantine over Cuba in 1962 Resorted to after intelligence information of the establishment of Russian missile bases in Cuba. Cuba is only 90 miles from the US mainland. Action taken as a measure of self-defense inasmuch as it was felt by the American government that the bases, if allowed to remain in Cuba, would be a menace to the national security of the US.

International Declarations against Intervention

Domestic jurisdiction clause in the UN Charter: Nothing contained therein shall authorize the organization to intervene in matters which are essentially within the domestic jurisdiction of any state. UN Declaration of Human Rights: Every State has the duty to refrain from intervention in the internal or external affairs of the other State.

OAS Charter: No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personnel of the State or against its political, economic, and cultural elements.

Hague Convention of 1907: The Contracting Powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its nationals. The foregoing embodies the so-called DRAGO DOCTRINE.

Antecedents to the Drago Doctrine

In 1902, Great Britain, Italy and Germany established a blockade against Venezuela with the object of forcing the latter to comply with certain contractual and other obligations owing to the blockading powers. The action was later the subject of universal disapprobation resulting to the formulations by Foreign Minister Drago of Argentina the popularly known Drago Doctrine.

Exceptions to Drago Doctrine: The Porter Resolution


Intervention is permitted if: The debtor state refused an offer to arbitrate the creditors claim; or Having agreed to arbitrate, prevented agreement on the compromis; or Having agreed to compromis, refused to abide by the award of the arbitrator.

The Monroe Doctrine


Enunciated by US President Monroe on Dec. 2, 1823. Implies that the US will intervene in cases affecting the countries of the American hemisphere in their relations to European powers, when they are likely to involve occupation of territory, either permanent or of such character as to threaten permanency.

Asiatic Monroe Doctrine

The Far East be preserved for the Far East with occidental powers keeping off their hands; and that as the United States guarded the countries of the American hemisphere against foreign encroachments, so must Japan guard those of the Far East.

The Truman Doctrine


Proposed by President Truman in a message to the US Congress on Mar. 12, 1947. In justifying its economic and military aid to Greece and Turkey and later to all of Europe, it declared as a US policy to support free peoples who are resisting attempted subjugation by armed minorities or by outside pressures.

The Eisenhower Doctrine

It is the policy of the US to help any State in the Middle East to resist aggression against the independence and integrity of such state.

Chapter 9 RIGHT TO EQUALITY

Basis of the Right of Equality


Art. 2, UN Charter: The Organization is based on the principle of the sovereign equality of all its Members. Montevideo Convention of 1933: State are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

OAS Charter: Every American state has the duty to respect the rights enjoyed by other states in accordance with international law. Declaration of Rights and Duties of States (International Law Commission: Every State has the right to equality in law with every other States.

Essence of Equality

All members of the family of nations, regardless of their size, population, form of government, wealth and origin are legally equal; and That they are regarded as having similar privileges, immunities and duties. Vattel: A dwarf is as much a man as a giant is; a small Republic is no less a sovereign State than the most powerful Kingdom.

Manifestations of Equality

Each state is entitled to one vote in international conferences. In signing of international documents, the principle of alternat is followed. In alternat, each power occupies the first place in the list of signatures in the copy which it receives.

Legal Equality v. Factual Equality

All states are legally equal regardless of their size, wealth and power. This right of equality is not absolute. Because in practice, there is inequality in fact.

Factual inequality

Non-procedural questions in the Security Council being decided by the Big Five through the use of veto power under the Yalta Formula. Also to ratification of any proposal to amend the UN Charter. Permanent membership of the Big Five in the Security Council. In providing for the elective membership in the Security Council: 5 from African and Asian States but only one from Easter European states.

Chapter 10 RIGHT OF TERRITORY

Territory Defined

A fixed portion of the surface of the earth inhabited by the people of the state. The territory must be permanent and indicated with precision since the limits generally define the jurisdiction of the sate.

Right to Acquire Territory

Inferred from the war powers of the Congress and the treatymaking powers of the President. Can be asserted only in accordance with the generally accepted principles in international law.

Acquisition of Territory

By discovery and occupation By prescription By cession By subjugation By accretion

Loss of Territory

By abandonment or dreliction By cession By subjugation By prescription By erosion By revolution By natural causes

Discovery and Occupation

Applicable only to terra nullius (territory not belonging to any state). Not applicable to open seas and outer space. Both are considered res communes.

Requisites of Effective Discovery and Occupation

The nationals of the discovering state, in its name or by its authority, must first take POSSESION of the territory through formal proclamation and the symbolic act of raising the national flag; and They must establish thereon an organization or government capable of making its laws respected (ADMINISTRATION).

The Kalayaan Islands Claim


Tomas Cloma, between 1947-1956, discovered the Kalayaan Islands, a 53-island group not part of the Spratlys. Subsequently, Cloma ceded his rights to the Phil government. On June 11, 1978, the Philippines formally laid claim to the island upon passage of PD 1596 based on occupation and exercise of jurisdiction. The Municipality of Kalayaan was established as part of Palawan. On May 20, 1980, the Phils. registered its claim with UN Secretariat. Its claim is justified by reason of history, indispensable need and effective occupation and control.

Inchoate Title of Discovery

When a state discovers a territory but does not take steps to actually administer it. In the meantime, other states are barred to set up claim of the territory. If administration is not undertaken within a reasonable time, the inchoate title of discovery is lost.

The Islands of Palmas Case (2 UN Rp. Of Int. Arb. Awards, 831)


Facts: The island was disputed between the US and Netherlands. The US claimed by virtue of a valid cession from Spain, which in turn had based its right on discovery and occupation. The Netherlands based its claim on its exercise of sovereignty over the island since the 18th century and when the alleged cession was made on Dec. 10, 1898.

Held: Discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island. Even admitting that the Spanish title still existed as inchoate in 1898 and must be considered as included in the cession under Article III of the Treaty of Paris, an inchoate title could not prevail over the continuous and peaceful display of authority by another state for such display may prevail even over a prior, definitive title put forward by another state.

The Clipperton Island Case (26 A.J.I.L. 390.1932)


Facts: A French Navy Lieutenant while cruising about one-half mile off Clipperton, drew up, on board the commercial vessel LAdmiral, an act by which, conformably to the orders given him by the Minister of Maine, proclaimed and declared sovereignty over the island beginning from that date to belong in perpetuity to His Majesty the Emperor, Napoleon III, and to his heirs and successors.

Thereafter, the vessel put off without leaving in the island any sign of sovereignty. The island was found to be terra nullius at that time. Mexico later claimed the territory in 1897.

Held: If a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed possession of that state, from that moment the taking of possession is considered accomplished and the occupation is formally completed.

Dereliction
A territory is lost by dereliction when the state exercising sovereignty over it: Physically withdraws from it; With the intention of abandoning it altogether.

Prescription

It is a derivative mode of acquisition. Transfer of sovereignty is due adverse and uninterrupted possession for sufficiently long period of time. There is no fixed rule as to the length of time needed.

Cession

Another derivative mode in the acquisition of territory. A territory belong to one state is transferred to the sovereignty of another by virtue of an agreement between them. It is consensual. Transfer of title effected upon the meeting of the minds of the parties.

Examples of Cession: Purchase by the US of Alaska from Russia in 1867. Gift by Austria of Lombardy to France in 1859. Exchange between Great Britain and Germany of the island of Helgoland and the territory adjoining German East Africa in 1890. Treaty of Paris ceding the Philippines from Spain to the US on Dec. 10, 1898. Cession of Korea to Japan under a treaty concluded between them on August 22, 1910.

Subjugation

Also a derivate mode of acquisition. Territory of one state is conquered in the course of war and is thereafter annexed to and placed under the sovereignty of the conquering state. Conquest alone confers only an inchoate right. There must be formal act of annexation to complete the acquisition. Examples: Annexation of Abyssinia (Ethiopia) by Italy in 1935.

Accretion

A mode of adding to the territory of a state by natural process. By the gradual deposit of soil on the coast through the action of the water; or By human labor.

Components of State Territory


Terrestrial Domain Maritime and Fluvial Domain Aerial Domain

Terrestrial Domain

The land mass on which the people live. It may be integrate, as in the case of Iran; or Dismembered, as in the case of the US; or Partly bounded by water, like Burma; or Completely surrounded by water, like Iceland; or Consist of several islands, like the Phils.

Maritime and Fluvial Domain

Consists of the bodies of water within the land mass and the waters adjacent to the coasts of a state to a specified limit. Included in the maritime and fluvial domain are land-locked lakes, rivers, man-made canals, the waters in certain gulfs, bays and straits, and the territorial sea.

Internal Waters

Also called national or inland waters. Those found in the bodies of water within the land mass and the waters in gulfs and bays up to the point where the territorial waters begin.

Rivers

National (e.g., Pasig River) Multi-national (e.g. Mekong River, Congo River, Nile River) International (e.g., Rhine River, Danube River) Boundary (e.g., St. Lawrence River between the US and Canada)

Summary on Jurisdiction over Rivers

If traversing only in one state Exclusive to that state. The state may forbid their use by other states if it chooses to dos so or may allow their use under certain regulations that it may see fit. If flowing through two or more states Each state has jurisdiction over that portion within its boundaries. If two states have jurisdiction over opposite banks The middle of the main channel, if navigable, is the boundary; if nonnavigable, the middle of the river itself.

Thalweg Doctrine

In the absence of a specific agreement between riparian states, the boundary line is laid on the MIDDLE OF THE MAIN NAVIGABLE CHANNEL. When the boundary river changes its course by gradual and normal process, e.g. accretion or erosion, the dividing line follows the new course. If deviation is violent and abrupt, e.g. avulsion, the boundary line shall still be on the old river bed. Unless there is agreement between riparian states, the dividing line on a bridge across the boundary river shall be on the middle of the bridge regardless of the location of the channel underneath,

Bays

A bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as or larger that that of a semi-circle whose diameter is a line drawn across the mouth of the indentation, or if the mouth is less than 24 NM in width.

If the distance between the low-water marks of the natural entrance points of a bay exceeds 24 NM, a closing line may be drawn between these two low-water marks and the waters enclosed thereby will be considered internal waters. Exception: Historic Bays

Historic Bays

These are bays whose waters are considered internal but which should not have that character were it not for the existence of a historic title. Examples: Bay of Cancale in France, Bay of El Arab in Egypt, Chesapeake Bay in the US, Hudson Bay in Canada and Zuyder Zee in Holland.

Character of waters in a Strait

A strait is a comparatively narrow passageway connecting two large bodies of water. Where the distance between the opposite coasts is not more 6 NM, the waters in the strait are considered territorial, subject to right of innocent passage. In case the two shores are owned by different state Jurisdiction of each littoral state extends up to the middle of the most navigable channel.

Territorial Sea
The belt of waters adjacent to the coast of the state, excluding the internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction. 12 NM from the low-water mark of the coast or baseline. Notes: Contiguous zone 12 NM from the outer limits of the territorial sea; EEZ 200 NM from the low-water mark of the coast or baseline. Both are not considered part of the territorial sea.

Normal Baseline v. Straight Baseline Method

Under the normal baseline method, the territorial sea is drawn from the low-water mark of the coast (to the breadth claimed) following its sinuosities and curvatures but excluding the internal waters in bays and gulfs. Under the straight baseline method, straight line are made to connect appropriate points on the coast without departing radically from its general direction. The waters inside these lines are considered internal. (Art. 5, UNCLOS)

National Territory of the Phils.


Comprises the Philippine archipelago, with all the islands and waters embraced therein; and All other territories over which the Philippines has sovereignty or jurisdiction; Consisting of its terrestrial, fluvial and aerial domain; Including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines (Archipelagic Doctrine).

Basis on Territorial Claim


Treaty of Paris, Dec. 10, 1898 ceding the Philippines Island from Spain to the US. Treaty of Washington, Nov. 7, 1900 between Spain and the US ceding Cagayan, Sulu and Sibuto. Treaty between the US and UK, Jan. 2, 1930 ceding Turtle Islands and Mangsee Islands. 1935 Phil. Constitution claiming Batanes Islands. 1973 Phil. Constitution claiming territories belonging to the Phil by historic right or legal title. PD 1596, June 11, 1978, officially laying claim to the Kalayaan Islands by virtue of occupation and exercise of jurisdiction.

The Fisheries Case (ICJ Reports [1951] 116)


On the question of the UK of the use by Norway of the straight baseline method in defining its territorial waters, it was Held: The method of straight baselines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; That even before the dispute arose, this method had been consolidated by a constant and sufficiently long practice in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law.

Aerial Domain

The airspace above the terrestrial domain and the maritime and fluvial domain of the state up to an unlimited altitude but not including the outer space.

Theories on Where Outer Space Begins

90-km above earth: Based on the lowest altitude for artificial earth satellites to orbit without being destroyed by friction. 84-km above earth: Based on the theoretical limits of air flights. Functional Approach: Based on the nature of the activity undertaken.

Chapter 11 RIGHT OF JURISDICTION

Jurisdiction Defined
It is the authority exercised by a state over persons and things within or outside its territory, subject to certain exceptions. It may classified into: Jurisdiction over its nationals; Terrestrial domain; Maritime and fluvial jurisdiction The continental shelf The open seas; Aerial domain; Outer space; and Other territories

Condominium

The term condominium is used to refer to the exercise of joint jurisdiction in a state by two or more states. Example: Joint jurisdiction by the US, Germany and UK in Samoa until 1899.

Ex-territoriality v. Extraterritoriality

Right of ex-territoriality refers to the privilege or the right of certain persons and things to be regarded as detached portions of the state to which they belong, moving about on the surface of foreign territory yet remaining separate from it, and, therefore, not subject to local laws and local jurisdiction. It is based on international customs. Right of extraterritoriality refers to the right of persons only to be exempted from local law and jurisdiction based on treaty stipulations or convention.

Sphere of Influence

It is a territory within which the political influence or the interests of one nation are permitted by other nations to be more or less exclusive.

1. Personal Jurisdiction

The power exercised by a state over its nationals. Based on the theory that a national is entitled to the protection of his state wherever he may be and is therefore bound to it by a duty of obedience and allegiance. This duty follows him even when he is outside the territory of his state.

Assertion of Personal Jurisdiction over Phil. Citizens

Art. 15, NCC: Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Art. 2, RPC punishes certain offenses even if committed outside the Philippine territory, including those against the national security and the law of nations as well as those committed by public officers and employees of the Republic in the discharge of their functions. NIRC provision imposing tax even to non-resident Filipinos on all their income, including those earned abroad but excluding income by OFW.

2. Territorial Jurisdiction

The authority of a state, based on its sovereignty and the right of domain, which it exercises over persons and things within its boundaries.

Exceptions to Territorial Jurisdiction


Foreign states, heads of states, diplomatic representatives, and consuls to a certain degree. Foreign state property, including embassies, consulates, and public vessels engaged in non-commercial activities. Acts of state Foreign merchant vessels exercising the rights of innocent passage or arrival under stress.

Foreign armies passing through or stationed in its territories with its permission. Such other persons or property, including organizations like the UN, over which it may, by agreement, waive jurisdiction

Land Jurisdiction

Jurisdiction over the land domain of a state is exclusive. No act or process can take effect within the land domain without the consent of the territorial sovereign. Internal waters, like rivers and lakes are assimilated to land territory and jurisdiction over them is the same as jurisdiction over the land domain.

Jurisdiction over foreign vessels within Maritime and Fluvial domain

Foreign Public Vessels: None provided they are not engaged in private business. Foreign merchant vessel: Local state exercises full civil jurisdiction. But criminal jurisdiction may or may not be asserted based on the English or French Rule.

English Rule v. French Rule in Criminal Jurisdiction


English Rule: The local state assumes jurisdiction over all offenses committed on board foreign merchant vessels within its ports, except only those of a petty nature affecting the discipline of the ship. Expresses the territorial principle in criminal jurisdiction. French Rule: The flag state has jurisdiction over all offenses committed on board its merchant vessels unless such crimes are of such a grave nature as to compromise the peace of the foreign port in which it may be anchored. Expresses the nationality principle in jurisdiction. Note: The Philippines follows the English Rule.

Criminal jurisdiction on board a foreign ship (Art. 27, UNCLOS)

The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: (a) if the consequences of the crime extend to the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;

(c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters.

Five Principles Of Criminal Jurisdiction


Territorial Principle which vests jurisdiction in the state where the offense was committed. Nationality Principle which vest jurisdiction in the sate of the offender. Protective Principle which vests jurisdiction in the state whose national interest is injure, such as counterfeiting, treason or espionage. Universality Principle which vests jurisdiction in the state which has custody of the offender like in piracy. Passive Personality Principle which vests jurisdiction in the state of the offended party.

Objective Territorial Jurisdiction

If a man who fires a shot in State A and kills somebody in State B just across the border, State B has OBJECTIVE TERRITORIAL JURISDICTION over the crime committed and over the person of the offender. Reason: The shot took effect within the territory of State B.

Civil jurisdiction in relation to foreign ships (Art. 28, UNCLOS)

The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State.

Without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.

Contiguous Zone

The waters beyond the territorial sea but not in excess of twelve miles from the outer limits of the territorial sea over which the coastal state exercises a PROTECTIVE JURISDICTION. To prevent infringement of its customs, fiscal, immigration or sanitary regulations

Continental Shelf (Art. 76, UNCLOS)

Comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. Right of coastal state over its continental shelf is exclusive

Continental Margin (Par. 4, Art. 76)

Comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

Coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either: (i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope.

Patrimonial Sea (EEZ)

The expanse of sea extending 200 NM from the coast from the coast or baselines of the state over which it asserts EXCLUSIVE JURISDICTION AND OWNERSHIP OVER ALL LIVING AND NON-LIVING RESOURCES FOUND THEREIN.

Principle of Mare Liberium


No state has sovereignty over any portion of the seas beyond its territorial waters. No state can take jurisdiction over any other than its own ship upon the high seas. Available to the use for all states for purposes of navigation, flying over them, laying submarine cables or fishing. In times of war, hostilities may be waged on the open seas. Sic utere tuo, non alienum laedas.

The Lotus Case


(PICJ Ser. A., No. 10, 1927, Hudson, World Ct. Rep. 20)

Facts: The Lotus, a French steamer, and the Bozkourt, a Turkish vessel, collided on the Aegean Sea, outside territorial waters resulting in the sinking of the latter vessel and death of several of Turkish nationals. The Lotus docked at Constantinople, where its officer of watch at the time of the accident, a French national, was subsequently convicted of manslaughter by the Turkish courts. France protested arguing that the collision took place in open seas

Held: The offense for which Lieutenant Demons appears to have been prosecuted as an act of negligence or imprudence, having its origin on board the Lotus whilst its effects made themselves felt on board the Bozkourt. These elements are legally entirely inseparable so much so that their separation renders the offense non-existent. It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. THIS IS A CASE OF CONCURRENT JURISDICTION BY FLAG STATES.

Penal jurisdiction in matters of collision or any other incident of navigation (Art. 97, UNCLOS)
In the event of a collision or any other incident of navigation concerning a ship on the high seas, Involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, No penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.

In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than
those of the flag State.

Valid Exercise of Jurisdiction beyond Territorial Sea


Extraterritoriality Exterritoriality Extreme necessity or in self defense Hot pursuit which begun in marginal waters and continued in the open sea Enforcement of revenue laws Enforcement of quarantine, sanitary and police regulations Arresting of pirates Fishing purposes Better policing of the coast

Piracy

It is an armed violence at sea which is not a lawful act of war. It may be tried in any country where the offender may be found or into which he may be brought It is a crime against all mankind. (Pp v. Lol-lo and Saraw, 43 Phil. 19)

Aerial Jurisdiction

The subjacent state has jurisdiction over the air space above it to the upward limits of the atmosphere. No foreign aircraft, civil or military, may pass through the aerial domain of a state without its consent.

Five Air Freedoms


Freedom to fly across foreign territory without landing Freedom to land for non-traffic purposes Freedom to put down traffic originating in the state of the aircraft Freedom to embark traffic destined to the state of the aircraft Freedom to embark traffic destined for, or to put down traffic coming from a third state.

Jurisdiction Over Outer Space


Like the open seas, outer space, or the region beyond the earths atmosphere is not subject to the jurisdiction of any state. Outer space and other celestial bodies are not susceptible of national appropriation. However, astronauts and their satellites and equipment, while in outer space, remain under the jurisdiction of the state that sent them. (Treaty on Principles Governing Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1968)

Jurisdiction Over Other Territories

Based on customary or conventional international law, a state may extend its jurisdiction beyond its territory: By assertion of its personal jurisdiction over its nationals By exercise of its right to punish certain offenses committed outside its territory against its national interests.

On the strength of its relations with other states or territories, e.g. establishment of protectorate, condominium, administration of trust territory or occupation of enemy territory in time of war Acquisition of exterritorial rights. Enjoyment of easements or servitudes, e.g. right innocent passage and arrival under stress.

The Portuguese Enclaves Case


Held: Portugal had a right of passage through Indian territory in order to reach its own territory. This right is limited to the extent necessary for the exercise of Portuguese sovereignty over the Enclave and subject to the regulation and control of India, in respect of private persons, civil officials and goods in general.

Note: The Portuguese Enclaves are also known as Portuguese India, comprising of a number of enclaves on Indias western coast, including Goa proper, the coastal enclaves of Daman and Diu, and the enclaves of Dadra and Nagar Haveli, which lie inland from Daman.

Chapter 12 RIGHT OF LEGATION

Right of Legation or Diplomatic Intercourse


Refers to the right of the state to send and receive diplomatic missions, which enables states to carry on friendly intercourse. It is not a natural or inherent right but exist only by common consent. No legal liability is incurred by the state for refusing to send or receive diplomatic representatives. Governed by the Vienna Convention on Diplomatic Relations (1961)

Agents Of Diplomatic Intercourse


Head of State Foreign Secretary or Minister Diplomatic Envoys

Head Of State

Embodiment of, and represents the sovereignty of the State. Enjoys the right to special protection for his physical safety and the preservation of his honor and reputation. His quarters, archives, property, and means of transportation are inviolate under the principle of exterritoriality.

Exempt from criminal jurisdiction. Also from civil jurisdiction, except when he himself is the plaintiff. Not subject to tax or to exchange or currency restrictions. Entitled to ceremonial amenities except if her is traveling in cognito. [Mighell v. Sultan of Johore, L.R. (1894), 1 Q.B. Div. 149]

Foreign Secretary

His office, the Foreign Office handles the actual day-to-day conduct of foreign affairs. He is the immediate representative of the head of state and directly under his control. He makes binding declarations on behalf of his state on any matter falling within his authority, i.e. questions relating to international claims against the state. He is the head of the foreign office and has direction of all ambassadors and other diplomatic representatives of his government.

Diplomatic Envoys
Ambassadors or nuncios accredited to heads of state; Envoys, ministers or internuncios accredited to heads of state; and Charge daffaires accredited to ministers for foreign affairs. Note: The are classifications of heads of mission under the Vienna Convention on Diplomatic Relations in 1961. Classification important only in matters of protocol or grant of special honors.

Other Members Of The Diplomatic Mission

Diplomatic Staff composed of those engaged in diplomatic activities and accorded diplomatic rank. Administrative & Technical Staff those employed in the administrative and technical service of the mission. Service Staff those engaged in the domestic service of the mission

Diplomatic Corps

Composed of all diplomatic envoys accredited to the same local or receiving state. Headed by a DOYEN DU CORPS or doyen, who by tradition is usually the Papal Nuncio or the oldest ambassador, or in the absence of the ambassadors, the oldest Minister Plenipotentiary.

Appointment of Envoys

President appoints, sends and instructs the diplomatic and consular representatives. His prerogative to determine the assignment of the diplomatic representative cannot be questioned. [De Perio-Santos v. Macaraig, G.R. No. 94070, Apr. 10, 1992] Sending state not totally free in choosing it diplomatic representatives, especially heads of mission. Receiving state has the right to refuse to receive the representative.

Process Of Agreation

The informal process of avoiding rejection of diplomatic representative that may result to strained relations between the sending and receiving states. Sending state resorts to informal inquiry (enquiry) as to the acceptability of a particular envoy. Receiving state responds with an informal conformity (agrement). The process is concluded by appointment and formal accreditation of the representative.

Commencement Of Diplomatic Mission


Envoy presents himself at the receiving state armed with the following papers: Lettre de creance (Letter of credence) with his name, rank and general character of his mission and request for favorable reception and full credence; Diplomatic passport authorizing his travel; Instructions which may include document of full powers (pleins pouvoirs) giving him authority to negotiate on extraordinary or special business; Cipher or Code Book for use in sending secret communication to his home country.

Functions Of A Diplomatic Mission


Represents the sending state in the receiving state; Protects in the receiving state the interests of the sending state and its nationals within the limits allowed by international law; Negotiates with the government of the receiving state; Ascertains, by all lawful means, the conditions and developments in the receiving state and reporting these to the sending state; and Promotes friendly relations between the sending state and the receiving state and developing their economic, cultural and scientific relations.

Proper Conduct Of Diplomatic Mission


Exercise utmost discretion and tack, taking consideration always the preservation of the goodwill of the sending state; Avoid interference with the internal affairs of the receiving state. Not to aid one political party at the expense of another. Not to publicly criticize the policies or acts of the receiving state or its nationals. Not to use his mission for espionage, dissemination of propaganda against the receiving state, or subversion of its government.

Diplomatic Immunities & Privileges


Personal inviolability Immunity from jurisdiction Inviolability of diplomatic premises Inviolability of archives Inviolability of communication Exemption from testimonial duties Exemption from taxation Other privileges

Personal Inviolability

Not liable to any form of arrest or detention. Receiving state should treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

Immunity From Criminal Jurisdiction

The diplomatic agent is immune from criminal jurisdiction of the receiving state. But this does not mean he is exempt from local laws; it does not give him the right to violate the laws of the receiving state. Diplomatic privilege does not import immunity from legal liability BUT ONLY EXEMPTION FROM LOCAL JURISDICTION [Dickinson v. Del Solar, 1 K.B. 376]

Immunity From Civil & Administrative Jurisdiction

The diplomatic agent also enjoys immunity from civil and administrative jurisdiction of the receiving state. No civil action of any kind may be brought against him, even with respect to matters relating to his private life. His properties are not subject to garnishment, seizure for debt, execution and the like. Note: The children born to a diplomatic agent while he possesses diplomatic status are regarded as born in the territory of his home state.

Exceptions: a) A real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission; b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; and c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.

The diplomatic agent cannot be compelled to testify, not even by deposition before any judicial or administrative tribunal in the receiving state, without the consent of his government. But immunity does not protect a public official who commits unauthorized acts inasmuch as such are not acts of state. He may be sued for such unlawful acts in his private capacity

Republic Act No. 75

Subject to the rule on reciprocity, it declares as void any writ or process issued to: - the person of any ambassador or public minister of any foreign state, authorized and received by the President; or - any domestic servant of any such ambassador or minister; or - his goods or chattels distrained, seized or attached.

Exceptions: Citizens/inhabitants of the Philippines, where the process is founded upon a debt contracted before his employment in the diplomatic service; and Domestic servants of the ambassador or minister whose names are not registered with the DFA

WHO v. Aquino, 48 SCRA 242


Facts: Respondent judge issued a warrant for the search and seizure of certain goods alleged to have been brought into the Philippines illegally by an official of the World Health Organization. The WHO and the official moved to quash the warrant on the ground of diplomatic immunity enjoyed by the official. The DFA Secretary and OSG joined them in the representation but the judge denied the motion

Held: The search warrant is void. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch. Where the plea of diplomatic immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept the claim of immunity so as not to embarrass the executive arm of the government in conducting the countrys foreign relations. [See also The Holy See v. Rosario, 238 SCRA 524]

Inviolability Of Diplomatic Premises & Archives

The diplomatic premises shall be inviolable. The agents of the receiving state may not enter them without the consent of the head of mission. This immunity is known as FRANCHISE DE LHOTEL. Exception: Extreme cases of necessity or there is imminent danger that a crime of violence is to be perpetrated in the premises Such premises cannot be entered or searched, and neither can the goods, records and archive be detained by local authorities even under process of law.

Inviolability Of Communication

Universal recognition of the right of an envoy to communicate fully and freely with his government. The mission may employ all appropriate means to send and receive messages, whether by ordinary or in cipher, by any mode of communication or by diplomatic couriers. Diplomatic pouch and diplomatic couriers also enjoy inviolability.

Exemption From Testimonial Duties


A diplomatic agent is not obliged to give evidence as a witness. However, he is not prohibited by international law fro doing so and may waive this privilege. Example: Venezuelan envoy testifying at the trial on the assassination of US President Garfield in 1881.

Exemption From Tax

The diplomatic agent is exempt from all taxes, customs duties, and other dues and from social security requirements under certain conditions. [See Art. 33, Vienna Convention on Diplomatic Relations] His personal baggage is also free from inspection, except when there are serious grounds for presuming that it contains articles not exempt from customs duties or not admissible into the receiving state.

Other Privileges

Freedom of movement and travel in the territory of the receiving state. Exemption from all personal services and military obligations. Use of the flag and emblem of the sending state on the diplomatic premises and the residence and means of transportation of the head of mission.

Precedence Among Diplomatic Representatives

In conferences or congresses of state, precedence is according to the alphabetical FRENCH NAMES of states. Where a number of states are signatories, treaties to be signed in alphabetical order, with due regard to the principle of alternat.

Precedence In Social Functions

Precedence is dependent upon nearness to the person at the head of the table: 1st place the chair at his right; 2nd place the chair at his left; 3rd place the second chair at his right; 4th place the second chair at his left; et. seq.

In processions: Generally, the place of honor is the first or sometimes the last. Protocol in short processions: (2) dignitaries the 1st has the precedence (3) dignitaries the middle is the place of honor; the first, the 2nd in honor; and the third, the third in honor (4) dignitaries 2nd is the place of honor; the 1st is the second in honor; 3rd & 4th, third and fourth respectively. (5) dignitaries middle is the place of honor; the one in advance is the 2nd in honor; the 4th place is the 3rd in honor; the 1st place is the 4th in honor, and the 5th place is the 5th in honor.

Gun Salutes

Ambassadors 19 guns Envoys Extraordinaire and Ministers Plenipotentiary 15 guns Ministers Resident 13 guns Charge daffairs 11 guns

Duration Of Immunities & Privileges

From the moment he enters the territory of the receiving state until he leaves or upon expiration of a reasonable time in which to do so. With respect to official acts, immunity shall continue ad infinitum. Privileges are available even in transitu, when traveling through a third state on his way to or from the receiving state.

Waiver of Immunities

Diplomatic privileges may be waived. But the waiver cannot be made by the individual concerned SINCE IMMUNITIES ARE NOT PERSONAL TO HIM. Waiver may be made only by the government of the sending state for head of mission. In other cases, by either the government or the chief of mission. Waiver does not include execution of judgment. A separate waiver is necessary

Termination Of Diplomatic Mission


Death Resignation Removal Abolition of office Recall by the sending state Dismissal by the receiving state War between them Extinction of the state

Chapter 13 CONSULS

Nature Of Office Of Consuls


They are state agents residing abroad for various purposes but mainly in the interest of COMMERCE AND NAVIGATION. Unlike diplomatic agents, they are not charged with the duty of representing their states in political matters Nor are they accredited to the state where they are supposed to discharge their functions. Consuls do not enjoy all the traditional diplomatic immunities and privileges. They are, however, entitled to SPECIAL TREATMENT under the law of nations.

Historical Evolution of Consuls

Dates back to 6 BC when Egyptians allowed the Greeks at Naucratis to choose from among themselves a magistrate who would apply to them the laws of their own country. They were called PROXENOI (protectors or prostrates). The practice was modified by the Romans with the appointment of their PRAETOR PEREGRINUS, who interpreted the law between the Romans and foreigners.

The Visigoths, after their conquest of Rome, later established a special court that applied to foreigners their own national laws rather than the law of the territorial sovereign. On the other hand, the Chinese also created similar courts in the 8th century while the Arabs in the 9th century. When commercial trade flourished among the Mediterranean cities and the Near East, treaties of capitulation were made exempting European nationals in the Near East from local jurisdiction and made them triable by their own consuls.

Kinds of Consuls

Consules Missi Professional or career consuls who are NATIONALS of the appointing state and required to devote full time to the discharge of their consular duties. Consules Electi They may or may not be nationals of the appointing state. They perform their consular functions only in addition to their regular callings. Consuls are further classified according to rank or grade: Consul General, Consul, Vice-Consul, and Consular Agent.

Appointment of Consuls

Two important documents are necessary before a consul assumes his functions: 1) Lettre de Provision (Letters Patent) The of appointment or commission issued by the sending state and transmitted to the Secretary/Minister, Foreign Affairs of the receiving state. 2) Exequatur The authority given to consul by the RECEIVING STATE authorizing them to exercise their duties. By it, consuls are public office both

Functions/Duties Of Consul

Promotes the commercial interests of his country in the receiving state and observes the commercial trends and developments therein for report to his home government. Performs duties relating to navigation, such as visiting and inspecting vessels of his own state which may make call at his consular district. He may also exercise a measure of supervision over such vessel, adjusting matters pertaining to their internal order and discipline.

Issues passport to the nationals of the sending state Issues visas and other documents relating to entry into and travel within the territory of the sending state. Issues visa invoices and certificates of origin of goods destined for the territory of that state. Looks after the interests of fellow national and extends to them official assistance when needed. Authenticates documents, solemnizes marriages, registers births and deaths, administers temporarily estates of deceased nationals within the consular district, advises and adjusts differences between fellow nationals, etc.

Immunities & Privileges of Consul


Freedom of communication in cipher or codes. Inviolability of archives, BUT NOT THE PREMISES. Hence, legal processes may be served and arrests made within consular premises. Exempt from local jurisdiction for offenses COMMITTED IN THE DISCHARGE OF OFFICIAL FUNCTIONS, but not other offenses EXCEPT MINOR INFRACTIONS.

Exempt from testifying on OFFICIAL COMMUNICATIONS or on matters pertaining to consular functions. Exempt from taxes, customs duties, military or jury service. Right to display their national flag and emblem in the consulate.

Exempt from taxes, customs duties, military or jury service. Right to display his national flag and emblem in the consulate. The immunities and privileges are also available to the members of the consular post, their respective families, and the private staff. WAIVER OF IMMUNITIES, in general may be made ONLY BY THE SENDING STATE. Immunity from jurisdiction on acts performed in the exercise of consular duties will subsist without limitation of time.

In Re Kasenkina

The US rejected the protest made by Russia against the service of writ of habeas corpus upon the latters consul at his official residence in New York for the production of a Russian schoolteacher alleged to have been detained in the premises. Note: Consular offices may be expropriated for purposes of national defense or public utility.

Walthier v. Thomson, 189 F. Supp. 319 (1960)

Facts: Thomson was sued for damages resulting from certain statements allegedly made by him while in the discharge of his duties. Held: A consular official is immune from suit when the acts complained of were performed in the course of his official duties. Hence, statements allegedly made to Walthier by Thomson were uttered in pursuance of the latters official functions as consular officer, then the suggestion of the ambassador of Canada should be adopted and the defendant held immune.

Termination Of Consular Mission


Removal Resignation Death Expiration of terms Withdrawal of the exequatur War between the receiving and sending states Note: Severance of consular relations does not necessarily terminate diplomatic relations.

Chapter 14 TREATIES

Treaty Defined

A formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treatymaking capacity, for the purpose of regulating their mutual relations under the law of nations. It embraces such other compacts as: conventions, declarations, covenants, acts, concordats, etc. Under Philippine law, AN EXECUTIVE AGREEMENT IS NOT A TREATY for purposes of requiring senate concurrence. In International law, both a treaty and executive agreement are the same.

Functions Of Treaties

To settle finally actual and potential conflicts; To be able to modify the rules of international customary law by means of optional principles or standards; To promote a transformation of unorganized international society into one which may be organized on any chosen level of social integration; and To provide the humus for the growth of international customary law.

Essential Requisites Of A Valid Treaty


Treaty-making capacity Competence of the representatives Freedom of consent Lawful subject matter Compliance to constitutional processes.

Treaty-making Capacity

Every state possesses the capacity to conclude treaties, as an attribute of sovereignty. Except when limited by reason of its status or by previous selfimposed inhibitions. Protectorate is restricted in the control of its external affairs; a neutralized state may not enter into a defensive or offensive alliance.

However, there are instances when mere colonies are allowed to sign treaties or join international conferences. Under customary international law, international organizations are deemed to possess treaty-making capacity, although such capacity may be limited by the purpose and the constitution of such organization.

Authorized Representatives

Heads of State usually exercise treaty-making power, i.e. President in the case of the Philippines subject to concurrence by 2/3 of all the members of the Senate. If a party negotiating a treaty produces an authorization which appears to be complete and regular, although in fact constitutionally defective, the other party, if it is ignorant and reasonably ignorant of the defect, is entitled to ASSUME THAT THE INSTRUMENT IS IN ORDER and to hold the former to the obligation of the latter.

Freedom Of Consent

Given by way of: - Signature - Exchange of instruments constituting a treaty - Ratification - Acceptance - Approval or accession; or - By other means manifesting consent. If there is error in consent or it is induced through fraud TREATY IS VOIDABLE If obtained by corruption of its representative INVALID.

A treaty forced upon the person of the negotiator is VOID AB INITIO. Example: Treaty signed at Bayonne in 1807 by Ferdinand VII under threat by Napoleon that the Spanish monarch would be tried for treason if he did not abdicate within 12 hours. However, if the pressure is applied not upon the person of the negotiator but UPON THE STATE ITSELF VALID. Example: Treaty of Peace. Reason: Treaties of peace exacted from the vanquished belligerent should be regarded NOT AS VOLUNTARY COMPACTS ENTERED INTO AS THE PRICE OF PEACE, BUT A SENTENCE imposed by the international community upon aggressors for crimes committed against international law and the general peace. [Fenwick, 442]

Contemporary principle in regard to treaty of peace:

The position has now probably changed insofar as war has been prohibited by the UN Charter and the General Treaty for the Renunciation of War. The state which has resorted to war in violation of its obligations under these instruments cannot be held to apply force in a manner permitted by law. Accordingly, duress in such cases must be regarded as vitiating the treaty. [Oppenheim-Lauterpacht, Sec. 499]

Subject Matter

Object and subject matter must be lawful, i.e. within the commerce of nations and in conformity with international law. The Treaty of Tordesillas in 1494 is INVALID because it sought to divide between Spain and Portugal parts of Atlantic, Pacific and Indian Oceans.

Ratification

In accordance to constitutional processes of the respective parties. Non-compliance will prevent enforcement of the treaty even if already signed by the authorized negotiators. In the Phils., 2/3 of all the members of the Senate should concur in the treaty.

Treaty-making Process

Negotiation Signing of the Treaty Ratification Exchange of Instruments of Ratification Registration

Negotiations

Representative must be armed with credentials known as pleins pouvoirs (full powers) to be exhibited to the other negotiators at the start of the formal discussion. Issued from competent authority of a state designating a person/s to represent the state for negotiating, adopting or authenticating the text of a treaty, expressing the states consent to be bound by the treaty, or accomplishing any other act with respect to the treaty.

Parties to submit a draft of the proposed treaty. Together with the counter-proposals, the draft becomes the basis of subsequent negotiations.

Signature

Purpose: To symbolize the good faith of the parties. Does not indicate the FINAL CONSENT of the state, especially if ratification is required under municipal law. Principle of alternat is observed.

Ratification

The act by which the provisions of a treaty are formally confirmed and approved by a State, and by which the State expresses its willingness to be bound by the treaty. Purpose: To enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests.

Is VFA a treaty? (The Lance Corporal


Daniel Smith Case)

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend its provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with the US faithfully complying with its obligation to produce L/CPL Smith before the court during the trial.

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive agreements registered under this Act within 60 days from their ratification be immediately implemented. The parties to these present cases do not question the fact that the VFA has been registered under the CaseZablocki Act.

In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the ICJ decision are not self-executing and are not registrable under the CaseZablocki Act, and thus lack legislative implementing authority. Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second Session, Vol. 98 Part 2, pp. 2594-2595. [Suzette Nicolas v. Alberto Romulo, et al., G.R. No. 175888, Feb. 11, 2009]

Medellin v. Texas

( 552 US No. 06-984, March 25, 2008) as laid out in the dissent of Chief Justice Puno

Facts: Jose Ernesto Medellin (Medellin), a Mexican national, was convicted of capital murder and sentenced to death in Texas for the gang rape and brutal murders of two Houston teenagers. His conviction and sentence were affirmed on appeal. Medellin then filed an application for post-conviction relief and claimed that the Vienna Convention on Consular Relations (Vienna Convention) accorded him the right to notify the Mexican consulate of his detention; and because the local law enforcement officers failed to inform him of this right, he prayed for the grant of a new trial.

The trial court, as affirmed by the Texas Court of Criminal Appeals, rejected the Vienna Convention claim. It was ruled that Medellin failed to show that any nonnotification of the Mexican authorities impacted on the validity of his conviction or punishment. Medellin then filed his first habeas corpus petition in the Federal District Court, which also rejected his petition. It held that Medellin failed to show prejudice arising from the Vienna Convention.

While Medellins petition was pending, the International Court of Justice (ICJ) issued its decision in the Case Concerning Avena and Other Mexican Nationals (Avena). The ICJ held that the U.S. violated Article 36(1)(b) of the Vienna Convention by failing to inform 51 named Mexican nationals, including Medellin, of their Vienna Convention rights. The ICJ ruled that those named individuals were entitled to a review and reconsideration of their U.S. state court convictions and sentences regardless of their failure to comply with generally applicable state rules governing challenges to criminal convictions.

In Sanchez-Llamas v. Orego, issued after Avena but involving individuals who were not named in the Avena judgment, contrary to the ICJs determination -- the U.S. Federal Supreme Court held that: The Vienna Convention did not preclude the application of state default rules. The U.S. President, George W. Bush, then issued a Memorandum (Presidents Memorandum) stating that the United States would discharge its international obligations under Avena by having State courts give effect to the decision.

Medellin repaired to the U.S. Supreme Court. In his petition, Medellin contends that the Optional Protocol, the United Nations Charter, and the ICJ Statute supplied the relevant obligation to give the Avena judgment binding effect in the domestic courts of the United States.

Holding of the US Supreme Court in Medina

Neither Avena nor the Presidents Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas corpus petitions. While an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing." So that decisions of the ICJ are not binding domestic law; and that, absent an act of Congress or Constitutional authority, the U.S. President lacks the power to enforce international treaties or decisions of the ICJ.

Determination whether treaty is selfexecutory: The Textual Approach


In Foster v. Neilson (2 Pet. 253, 314): Where the treaty in question was first determined by the Court to be non-self-executing; after four years, another claim was made based on the same treaty and the Supreme Court concluded that it was self-executory, based on the wording of a Spanish translation, which was for the first time brought to the attention of the Court. The self-executory nature was reflected in the words: by force of the instrument itself. General principles of interpretation would confirm that any intent of the ratifying parties to the relevant treaties to give ICJ judgments binding effect in their domestic courts should be clearly stated in the treaty.

The Youngstown Framework [A tripartite


scheme evaluating executive action]
First, when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum. Second, when the President acts in absence of either congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and congress have concurrent authority, or which its distribution is uncertain. In such a circumstance, Presidential authority can derive support from congressional inertia, indifference or quiescence. Finally, when the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb. [Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579
(1952)]

The CaseZablocki Act

An internationally known practice by the United States of submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress within sixty (60) days from ratification. [1
U.S.C. 112b (a) (1976 ed., Supp IV)]

Dissenting: Nicolas v. Romulo


Chief Justice Puno speaking: With Medellin, the case law is now settled that acknowledgement by the U.S. President that an agreement is a treaty, even with the concurrence of the U.S. Senate, is not sufficient to make a treaty enforceable in its domestic sphere, unless the words of the treaty itself clearly express the intention to make the treaty self-executory, or unless there is corresponding legislative enactment providing for its domestic enforceability. The VFA does not satisfy either of these requirements and cannot thus be enforced within the U.S.

In Bayan v. Zamora, the majority of the Court anchored the validity of the VFA on the flabby conclusion that it was recognized as a treaty by the U.S. The Court held that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty. It was held that it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.

To justify its tortuous conclusion, the majority of the Court in Bayan v. Zamora did not accord strict meaning to the phrase, recognized as a treaty and declared that words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use. Thus, the Court held that it was sufficient that the other contracting party accepts or acknowledges the agreement as a treaty.

In obvious error, the majority of the Court gave undue deference to the statement of the former Ambassador of the United States to the Philippines, Thomas C. Hubbard, that Senate advice and consent was not needed to consider a treaty binding on the U.S., on the premise that the President alone had the power to conclude the VFA, deriving from his responsibilities for the conduct of foreign relations and his constitutional powers as the Commanderin-Chief of the Armed Forces, to conclude that the U.S. accepted or acknowledged the agreement as a treaty. The majority then jumped to the conclusion that the U.S. recognized the VFA as a treaty, and that the constitutional requirements had been satisfied.

It can be deduced from the posture of the former US Ambassador that the VFA is an executive agreement, entered into by the President under his responsibility for the conduct of foreign relations and his constitutional powers as Commander-in-Chief of the Armed Forces. It can be further deduced that the VFA is not recognized as a treaty by the U.S., but it is akin to a sole or presidential executive agreement, which would be valid if concluded on the basis of the U.S. Presidents exclusive power under the U.S. Constitution.

In other words, it does not fall under the category of an executive agreement entered into by the President pursuant to the authority conferred in a prior treaty because, although the VFA makes reference to the Mutual Defense Treaty in its Preamble, the Mutual Defense Treaty itself does not confer authority upon the U.S. President to enter into executive agreements in the implementation of the Treaty. Neither does the VFA fall under the category of Congressional Executive Agreement, as it was not concluded by the U.S. President pursuant to Congressional authorization or enactment, nor has it been confirmed by the U.S. Congress.

Implications of Medina Ruling in RP-US VFA


Chief Justice Puno writes: It must be clear from the text of the VFA itself that the VFA is self-executory in order that it may be reciprocally enforced: The VFA does not show any provision that would satisfy the clear statement requirement within the text of the treaty to show that the United States intended it to be reciprocally enforced in the domestic sphere.

The recognition of the President through the former U.S. Ambassador that the VFA is a treaty is insufficient to make this international obligation executory in the domestic sphere: The circumstances in Medellin show that recognition by the U.S. Executive official alone that the VFA is binding on the U.S. is ineffective in actually enforcing rights sourced from the Agreement. Congressional law is necessary to enforce these rights in the U.S.

Congressional act is necessary to transform the international obligations brought about by the VFA: At best, the VFA can be considered as an international commitment by the U.S., but the responsibility of transforming an international obligation arising from a nonself-executing treaty into domestic law falls to Congress

There is an asymmetry in the legal treatment of the VFA:

The decisive mark to show that the agreement is considered as a treaty by the other contracting state is whether the agreement or treaty has obligatory effects and may be used as a source of rights enforceable in the domestic sphere of the other contracting party.

Medellin evidently shows us that the wording of the VFA does not bear this mark. Though considered as a treaty by the Executive, it may not create obligatory effects in the U.S.s domestic sphere absent a clear statement in the text of the Agreement that it is self-executory, or without a congressional act implementing it. I vote to grant the petitions. Let the custody over Lance Corporal Daniel Smith be transferred from the U.S. Embassy in Manila to the New Bilibid Prison in Muntinlupa, pending final resolution of his appeal from conviction for the crime of rape.

Valid Grounds For Non-Ratification


Error in points essential to the agreement. Introduction of matters of which the instructions of the plenipotentiaries do not give them power to treat and negotiate. Clause contrary to the public law of either of the states.

A change in the circumstances, making the fulfillment of the stipulations unreasonable. Introduction of conditions impossible to fulfill. Failure to meet the approval of the political authority whose approval is necessary to give effect to the treaty. Lack of proper credentials on the part of the negotiators or the lack of freedom in negotiating.

Reservation

A unilateral statement, made by s State when signing, ratifying, accepting, approving or acceding to a treaty. Its purpose is to exclude or modify the legal effect of certain provisions of the treaty in their application to that State. The state making the reservation remains a party provided that the reservation is compatible with the object and purpose of the treaty.

Binding Effects Of Treaties

A a general rule, non-parties are not bound by the stipulations in a treaty under the principle of PACTA TERTIIS NEC NOCENT NEC PROSUNT. A treaty is binding only on the contracting parties, including not only the original signatories but also other states which, although they may not have participated in the negotiation, have been allowed by its terms to sign it later by the process so-called as accession.

Attitudes Which A Party May Indicate Without Being Originally A Party

Adhesion Acceptance of principles without necessarily becoming a party. Approbation Show of favorable attitude to a treaty by actions or deeds. Accession Becoming a party of a non-signatory. By the principle, upon invitation or permission of the contracting parties, a third party who did not participate or did not ratify on time, may be bound by the treaty. Acceptance Informal way by which a State shows agreement with the treaty. Adherence Acceptance of some of the principles embodied in the treaty.

Exchange Of Instruments Of Ratification

Signifies the effectivity of the treaty, unless a different date has been agreed upon. If there ratification is dispensed with and no effectivity clause is provided, the treaty is deemed effective upon its signature.

Registration & Publication

Every treaty and international agreement entered into by any member of the UN should be registered with the Secretariat and published by it. [Art. 102, UN Charter]. Nonetheless, failure to register would not affect the validity of the treaty. But unregistered treaty cannot be invoked by any party thereto before any organ of the UN.

Terms Used In International Agreements

Convention An agreement usually relating to some specific subject rather than to matters of general character as in the case of a treaty. Protocol (or Process Verbal) Less formal than a convention. It embodies the form of an agreement already made or to be made both in phrasing and in arrangement. Protocols are sometimes formally ratified by the treaty-making power, and sometimes are simply the singed minutes of a conference.

Declaration Usually in the form of reciprocal agreements relating to the rights and privileges of the nationals of the states. The term declaration is also applied to the formal statement of the principles in accord with which states propose to act, or to the formal statement of the grounds for an action. Cartels Agreements concluded between belligerents in regard to intercourse in time of war and includes such subjects as the exchange of prisoners, transmission of mail, free passage of couriers, etc.

Sponsions (or Agrements sub spe rati) Agreements tentatively made between representatives of states not properly commissioned, or agreements made by representatives in excess of authority. Treaties of Guaranty Agreements through which one or more powers engage to maintain, to aid in maintaining or not to interfere with, given conditions or rights. Example: Treaty guaranteeing perpetual neutrality of Switzerland and inviolability of its territory on Nov. 20, 1815.

Compromis d Arbitrage Denotes an agreement to refer to arbitration some matter in dispute. Pact Used at times to mean treaty, like the Pact of Paris of 1892, renouncing war as an instrument of national policy. Concordat Agreement entered into by the Pope with the heads of foreign states. Exchange of notes (diplomatic notes) Consisting in the sending and receiving of notes similar to the letters of offer and acceptance in business, until an understanding has been arrived at.

Pactum de contrahendo Preliminary agreement on certain points to be included in a treaty. Memoire or memorandum A diplomatic note, either signed or merely initiated by the negotiators, containing a summary exposition of the principal facts about a certain matter. Punctationes Mere negotiations on the items of a future treaty, without the parties entering into an obligation to conclude that treaty. Reversales A declaration that an error in draftsmanship or in etiquette shall not be considered as a precedent.

Lettres reversales A declaration that an alteration in ceremonial practice is effected without prejudice to the general rule. Recez A term applied to the act of a diet, or congress in reducing to writing the result of its deliberations on a certain subject, before final adjournment.

Separate articles Clauses added to a treaty after it has been formally singed and ratified. They are contained in a separate document, duly authenticated but they are construed in connection with the treaty to which they refer and to which they form part. Travaux Preparatoires (Preparatory to work) - often used in clarifying the intentions of a treaty or other instrument.

Fundamental Principles On Treaties


Pacta Sunt Servanda A principle in international law which holds that treaty obligations should be discharged in good faith. Rebus Sic Stantibus A principle according to which a treaty ceases to be binding when an essential change in the circumstances in which it was concluded has occurred. The doctrine does not operate automatically. There is necessity for a formal act of rejection, usually by the head of state, with statement of the reason why compliance in no longer required. [Santos III v. Northwest, 210 SCRA 256] CLAUSULA REBUS SIC STANTIBUS OMNIA CONVENTION INTELLIGITUR REBUS SIC STANTIBUS

Requisites For Valid Invocation of Rebus Sic Stantibus


The change must be so SUBSTANTIAL that the foundation of the treaty must have altogether disappeared; The change must have been UNFORESEEN or UNFORESEABLE at the time of the perfection of the treaty; The change must not have been CAUSED by the party invoking the doctrine; The doctrine must be invoked within a REASONABLE TIME; The duration of the treaty must be INDEFINITE; and It cannot operate RETROACTIVELY. It must not adversely affect provisions already been complied with.

Rules In Interpretation Of Treaties

When there is doubt as to the interpretation of the words of a treaty: (a) The words are to be interpreted in their usual sense, unless this involves an absurdity or is incompatible with the general provisions of the treaty; (b) Words with more than one meaning are interpreted in the more general sense, rather than their technical sense, unless clearly used in their technical sense; and (c) Words are to be interpreted as understood at the time of the negotiation of the treaty and favorably to the party assuming an obligation.

When there is doubt as to the interpretation of the PROVISIONS of a treaty: (a) That which is specifically stated prevails against the more general; (b) A negative outweighs a corresponding positive; (c) Provisions operating unequally may be strictly construed by the party suffering the greater burden; and (d) Single provision should be interpreted with reference to the whole treaty.

In case of conflict between different treaties: (a) If between treaties to which the same are parties, the later is binding; and (b) If between earlier and later treaties to which the same state are not parties, the earlier treaty is binding

Termination Of Treaties

Expiration of term Accomplishment of the purpose Impossibility of performance Loss of the subject matter Desistance of the parties, through express mutual consent. Also known as desuetude, i.e. the exercise of the right of denunciation or withdrawal, when allowed. Novation

Extinction of one of the parties if treaty is bipartite. Vital change of circumstances under the doctrine of rebus sic stantibus. Outbreak of war (Except when the treaty was intended to regulate the conduct of the signatories during the hostilities, or to cede territory, or to fix boundaries. Voidance of treaty due to defects in conclusion or violation of its provision by one of the parties or incompatibility with international law or the UN Charter.

Kinds of commercial treaties

Friendship, commerce and Navigation Treaties (FCNs) Host state undertakes to treat foreign investments on the same level as investments from any other state, including in some instances treatment that was as favorable as the host nation treated its own investments. Also establishes the terms of trade and shipping between the parties, the rights of foreigners to conduct business and own property in the host state. Bilateral Investment Treaties (BITS) Sets forth actionable standards of conduct that applied to governments in their treatment of investors from other states, including very importantly provisions on expropriation and repatriation of capital. It is estimated that there are today 2,500 BITs still in force.

Arbitral Tribunals Hearing Investment Disputes

International Centre for Settlement of Investment Disputes (ICSID) North Atlantic Free Trade Agreement (NAFTA) tribunal UN Commission on International Trade Law (UNCITRAL) To some extent, ICJ

Fundamental Investment Principles

National Treatment or Most Favored Nation Clause Accords investments and investor treatment which is no less favorable in like circumstances that the host state accords to its own investors. Fair and Equitable Treatment Customary international Law. Provides a basic and general standard which is detached from the host States domestic law.

Origin of Fair and Equitable Treatment principle


L.F.H. Neer & Paulin Neer (USA) v. Mexico, 4 RIAA 60 (1926) The propriety of governmental acts should be put to the test of international standards. The treatment of an alien, in order to constitute an international delinquency should amount to OUTRAGE, TO BAD FAITH, TO WILLFUL NEGLECT OF DUTY, OR TO AN INSUFFICIENCY OF GOVERNMENTAL ACTION so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. Whether the insufficiency proceeds from the deficient execution of a reasonable law or from the fact that the laws of the country do not empower the authorities to measure up to international standards is IMMATERIAL.

Meaning of Unfair & Inequitable Conduct


Waste Mgt. Inc. v. Mexico, ICSID No. ARB (AF)/00/03, Award of 30 April 2004: Held: Unfair and inequitable conduct is one that is arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice, or involves a lack of due process leading to an outcome which offends judicial propriety as might be the case with a manifest failure of natural justice in judicial proceedings or a complete lack of transparency and candor in an administrative process.

Chapter 15 NATIONALITY & STATELESSNESS

Nationality vs. Citizenship

Nationality Membership in a political community with it concomitant rights and duties. It is a tie that binds an individual to his state, from which he can claim protection and whose laws he is obliged to obey. Citizenship It has more exclusive in scope. It applies only to certain members of the state accorded with more privileges that the rest.

Determination Of A Persons Nationality


Birth Naturalization Repatriation Subjugation Cession

Birth

Jus soli Acquisition of nationality of the state where one is born; Jus sanguinis by blood, i.e. acquiring nationality of ones parent or parents.

Naturalization

Direct: a. by individual proceedings, usually judicial, under general naturalization laws; b. by special act of the legislature, often in favor of distinguished foreigners who have rendered some notable service to the local state; c. by collective change of nationality (naturalization en masse) as result of cession or subjugation; and d. by adoption of orphan minors as national of the state where the are born.

Derivative: a. on the wife of the naturalized husband; b. on the minor children of the minor children of the naturalized parent; and c. on the alien woman upon marriage to a national Note: Derivative naturalization does not always follow as a matter of course. It is usually subject to stringent restrictions and conditions, i.e., wife must herself qualified if she herself applies for naturalization.

Repatriation

The recovery of nationality by individuals who are natural-born citizens of a State but who had lost their nationality. R.A. 8171 governs repatriation of Filipino women who have lost Filipino citizenship by reason of marriage to aliens and repatriation of former natural-born Filipinos who lost Filipino citizenship.

Multiple Nationalization

An individual may be possessed with more than one nationality due to the concurrent application as to him of the municipal laws of states claiming him as their national. Such may arise where both jus soli and jus sanguinis operate simultaneously upon him.

Doctrine Of Indelible Allegiance


An individual may be compelled to retain his original nationality notwithstanding that he has already renounced or forfeited it under the laws of a second state whose nationality he has acquired. Examples: (a) Sec. 2, Art. III, Phil. Constitution where a Filipino woman continues her citizenship even if married to a foreigner.

(b) An American citizen who has accepted a commission in the French Navy was convicted of violating the Neutrality Act of 1874 since he had no power to renounce his allegiance without the consent of the US and therefore subject still to its laws. [Williams Case, US Cir. Ct. Dist., 11799; Fenwick Cases, 152]

Loss of Nationality
Voluntary: Renunciation, express or implied; Request for Release [precedes the acquisition of a new nationality] Involuntary: Forfeiture like enlistment in a foreign army or long continued residence in a foreign state; Substitution like change of sovereignty or conferment of derivative naturalization

Hague Convention on the Conflict of Nationality Laws [1930]


Each state to determine under its law who are its nationals. [Art. 1] Any question as to whether a person possesses the nationality of a particular state to be determined in accordance with the law of the state. [Art. 2] A person with two or more nationalities may be regarded as its national by each of the states whose nationality he possesses. [Art. 3] A state may not give diplomatic protection to one of its nationals against a state whose nationality such person also possesses. [Art. 4, see Nottenbohm case]

Principle of Effective Nationality

Within a third state, a person having more than one nationality shall be treated as if he had only one. [Art. 5] Without prejudice to the application of its law in matters of personal status and of any convention in force, a third state shall, of the nationalities which any of such person possesses, recognize exclusively in its territory either:

The nationality of the country in which he is HABITUALLY AND PRINCIPALLY A RESIDENT; or The nationality of the country with which in the circumstances he appears to be in fact MOST CLOSELY CONNECTED. Note: The immediately preceding determination is what is known as the PRINCIPLE OF EFFECTIVE OR ACTIVE NATIONALITY.

Summary On Determination Of Nationality

Where a person possesses both Philippine and American nationality, as for instance, his claim for Philippine nationality shall be decided on the basis of Philippine law alone, to the exclusion of all other laws, vice versa. However, if the issue of his real nationality is raised in a third state, as for instance Japan, the laws of Japan will be inapplicable as he is not claiming Japanese nationality. In the preceding situation, Japan shall apply the principle of effective or active nationality where he will be considered as national exclusively of the state with which he is MOST CLOSELY CONNECTED.

U.S. (For Alexander Tellech) v. Austria & Hungary, Tripartite Claims Commission, 1928
Issue: Whether or not the Austrian Government may subject Alexander Tellech, born of Aurtrian parents in the US, to compulsory military service? Held: The action taken by the Austrian civil authorities in the ercise of their police power and by the Austro-Hungarian military authorities, of which complain is made, was taken in Austria, where claimant is voluntarily residing, against claimant as an Austrian citizen.

Citizenship is determined by rules prescribed by municipal law. Under the law of Austria, to which claimant had voluntarily subjected himself, he was an Austrian citizen. The Austrian-Hungarian authorities were well within their rights in dealing with him as such. Possessing as he did dual nationality, he voluntarily took the risk incident to residing in Austrian territory and subjecting himself to the duties and obligations of an Austrian citizen arising under the municipal laws of Austria.

The Canevero Case


Tribunal of the Permanent Court of Arbitration, 1912

Issue: May Italy file a diplomatic claim against Peru on behalf of Rafael Canevaro, who is a national of both states under their respective municipal laws? Held: According to Peruvian legislation Rafael Canevaro is a Peruvian by birth because born on Peruvian territory. On the other hand, according to Italian legislation, he is of Italian nationality because he was born of an Italian father.

As a matter of fact, Canevaro had on several occasions acted as a Peruvian citizen, both by running as a candidate for the Senate, where none are admitted except Peruvian citizens and where he succeeded in defending his election, and particularly by accepting the office of Consul-General for the Netherlands, after having secured authorization of both the Peruvian Government and Congress. Under these circumstances, whatever Canevaros status as a national may be in Italy, the Government of Peru has a right to consider him a Peruvian citizen and to deny his status as an Italian claimant.

The Nottebohm Case, I.C.J. Reports, 1955, p. 4

Facts: Nottebom, a German by birth, had been a resident of Guatemala for 34 yrs when he applied for and acquired naturalization in Liechtenstein one month before the outbreak of WWII. Many members of his family and his business connections were in Germany. In 1943, Guatemala, which had declared war on Germany, confiscated all his properties on the ground that he was an enemy national. Liechtenstein thereupon filed suit against Guatemala on his behalf as its naturalized citize.

Issue: Was Nottebohms naturalization binding on Guatemala? Held: The courts of third states, when they have before them an individual whom two othe states hold to be their national, seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the REAL AND EFFECTIVE NATIONALITY. Nottebohms actual connections with Liechtenstein were extremely tenuous.

No settled abode, no prolonged residence in that country at the time of his application for naturalization. Not intention of settling there was shown at that time or realized in the ensuing weeks, months or years on the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there. Naturalization was asked not so much for the purpose of obtaining a legal recognition of Nottebohms membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent state that of a

Naturalization was asked not so much for the purpose of obtaining a legal recognition of Nottebohms membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent state that of a neutral state, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations other than fiscal obligations and exercising the rights pertaining to the status acquired.

Gutemala is under no obligation to recognize a nationality granted is such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis--vis Guatemala and its claim must, for this reason, be held to be inadmissible.

Statelessness

The status of having no nationality, as a consequence of being born without any nationality, or as a result of deprivation or loss of nationality. [Labo v. Comelec, 176 SCRA 1]

Convention Relating to the Status of Stateless Persons


I. Treatment of stateless persons vis--vis the nationals in the state they are staying THEY MUS BE GIVEN TREATMENT AT LEAST AS FAVORABLE AS THAT ACCORDED TO THE NATIONAL OF SUCH STATE WITH RESPECT TO: Freedom to practice their religion and freedom as regards the religious education of their children; Access to the courts of law; Rationing of products in short supply; Elementary education; Public relief and assistance; and Labor legislation and social security.

II. Treatment of stateless persons lawfully staing in the territory of a state vis--vis aliens found or staying there. THEY MUST GIVEN TREATMENT AS FAVORABLE AS POSSIBLE AND, IN ANY EVENT, NOT LESS FAVORABLE THAN THAT ACCORDED TO ALIENS GENERALLY IN THE SAME CIRCUMSTANCES, relative to: Acquisition of movable and immovable property; Right of association in non-political and non-profit-making associations and trade unions;

Gainful employment and practice of liberal profession; Housing and public education other than elementary education; and Freedom of movement.

Refugees

Persons who are outside the country of his nationality, or if he has no nationality, the country of his former habitual residence either because: He has or had well-founded fear of prosecution by reason of his race, religion, nationality or political opinion; Who is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality; or if he has no nationality, to return to the country of his former habitual residence.

Essential Elements For One To Be Considered A Refugee

He is outside the country of his nationality, or if stateless, outside the country of his habitual residence; He lacks national protection; and He fears persecution of reason of his race, religion, nationality or political opinion.

Refugee Convention of 1951

A refugee is treated as a stateless individual, which he is, either de jure or de facto. The convention does not deal with admission of refugee but with non-refoulement.

Non-refoulement (in relation to refugees)

No contracting state shall expel or return a refugee in any manner whatsoever, to the frontiers of territories where his life or freedom is threatened. The state is under obligation to grant temporary asylum to refugees.

Chapter 16 Treatment of Aliens

Right to Exclude Aliens

Every state has the right, as inherent in sovereignty and essential to its own security and existence, to determine in what cases and under what conditions foreigners may be admitted to its territory. Includes the power to regulate the entry and stay of aliens and the right to expel them through deportation or reconduction. Aliens must accept the institutions of the state as he finds them.

Aliens may be deprived of certain rights, e.g., political rights, acquisition of lands, etc. Or, they may granted certain rights and privileges based on: - reciprocity - MFN treatment -National treatment

But once it decides to accept aliens, its competence as territorial sovereign is limited by the requirement that they
be treated justly, in accordance with the law of nations.

Expulsion or Deportation

Predicated on the ground that - the stay of the alien constitutes a menace to the security of the state; - his entry was illegal; - permission to say has expired; or - he has violated any limitation or condition prescribed for his admission and continued stay.

Reconduction

The forcible conveying of aliens back to their home state. Destitute aliens, vagabonds, alines without documents, alien criminals, and the like, may be arrested and reconducted to the frontier without any formalities. The home state of such aliens has the obligation to receive them

Doctrine of State Responsibility

A state is under obligation to make reparations to another state for its failure to fulfill its primary obligation to afford, in accordance with international law, the proper protection due to the alien national for: - Acts or omissions constituting an international delinquency; - Acts or omissions directly or indirectly imputable to the state; or - Indirect injury sustained by the claimant State due to the damage of its national.

Act or Omission Constituting International Delinquency

The treatment of the alien should amount to an outrage, to bad faith, willful neglect of duty, or insufficiency of governmental action. That every reasonable and impartial man would readily recognize such treatment to be insufficient and evidence.

International Standard of Justice

The standard of the reasonable State, which means reasonable according to ordinary means and notions accepted in modern civilization. Execution of an alien without trial considered as falling below international standard of justice.

Where the laws of the State fall below the international standard, it is no defense that such laws are applicable not only to aliens but to a nationals also. Doctrine of equality of treatment does not apply. The independence of the courts of the State is an accepted canon of civilized governments, and unless the misconduct is extremely gross, the law does not lightly hold a State responsible for any error committed by the Courts.

Act or Omission Directly or Indirectly Imputable to the State


Even when the laws of the State conform to the international standard of justice, the act or omission causing damage to the alien may be directly imputable to the State if the latter does not make reasonable effort, to prevent injury to the alien, or having done so unsuccessfully, fails to repair such injury. Act or omission may either be: Acts of Government Officials Acts of Private Individuals

Acts of Government Officials

These are acts of the primary agents of the State (heads of State) and high administrative official within the gamut of their authority which will give rise to direct state responsibility. Where the officer acts beyond the scope of his authority, his act is likened to an act of a private individual. For acts of minor or subordinate official to give rise to liability, there must be a DENIAL OF JUSTICE or something which indicates COMPLICITY of the State in, or CONDONATION OF, the original wrongful act, such as an omission to take disciplinary action against the wrongdoer subordinate official.

Acts of private individuals

For State to be held responsible, it must be shown that there was: ACTUAL or TACIT COMPLICITY of the government in the act, BEFORE or AFTER IT, either by DIRECTLY RATIFYING or APPROVING it; or In PATENT or MANIFEST NEGLIGENCE in taking measures to prevent the injury (e.g., not doing investigation of the case, or not punishing the guilty, or not affording the victim opportunity to pursue his civil remedies against the offender). Claimant has the onus to prove such state negligence.

Enforcement of Aliens Claim


Exhaustion of local remedies Resort to diplomatic protection Modes of enforcement of claims

Enforcement of Local Remedies


Alien must first exhaust all available local remedies for the protection or vindication of his rights, The State must be given opportunity to do justice in its own regular manner of dispensation and without unwarranted interference with its sovereignty by other States. Exception: No remedies to exhaust. No adequate machinery for the administration of justice. International delinquency results from an act of state.

The Calvo Clause

A stipulation by which an alien waives or restricts his right to appeal to his own state in connection with any claim arising from the contract and agrees to limit himself to the remedies available under the laws of the local state. The stipulation cannot be interpreted to deprive the aliens State of the right to protect or vindicate his interests in case he is injured in another state. Such waiver can legally be made not by the alien but by his own state [US (North American Dredging Co.) v. Mexico, General Claims Commission, 1926]

Resort to Diplomatic Protection

Available only after exhaustion of local remedies without success. Alien to seek assistance from his state as its national in seeking redress of his injury. A stateless person cannot be subject to diplomatic protection. His case may be one of damnum absque injuria.

The Barcelona Traction Case


[Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain), 2nd Phase Judgment, 05 Feb 1970]

Incorporation Rule: The right of diplomatic protection of a company belongs to its national State, defined as the State under whose law the company was formed or in whose territory it has registered office. Hence, a State does not have standing to espouse claims on behalf of a company incorporated somewhere else, not even when the controlling shareholders are nationals of the State. Exceptions: 1. Where municipal law is the source of such shareholder rights; 2. On behalf of nationals for harm to the company under two exceptional situations as a matter of equity, to wit: a) Where the company ceases to exist; and (b) Where the State of incorporation of the company is the state alleged to have committed the harm

Tie of Nationality
Rule: In order for an alien to validly resort assistance from its State, it is a requirement that the TIE OF NATIONALITY must exist from the time of the injury until the time the international claim is finally settled. Once this tie is broken, i.e. the injured national dies while the claim is under consideration and his heir are not nationals of the claimant state, the claim itself is deemed automatically abated.

Exceptions Rule on Tie of Nationality


Diplomatic claim filed by the UN on behalf of its officials. An injured individual may bring suit against any state before the European Court of Human Rights (ECHR) for alleged infractions on the provisions of the European Convention Human Right, the European Commission on Human Rights and the contracting states.

Modes in Enforcing Alien Claims


Negotiation Tender Good offices Arbitration Judicial Settlement Note: When the responsibility of the State is established, the duty to make reparation will arise. Reparation may be in the form of: Restitution Satisfaction Compensation Or, combination of all three modes.

Negotiation The process by which states adjust their differences by an exchange of their view, generally through diplomatic agents. Tender of Good offices A third party, either alone or in collaboration with others, offers to help in the settlement of a dispute. If the offer is accepted, there is now an exercise of good offices. Arbitration The solution of the dispute by an impartial third party, usually a tribunal created by the parties themselves under a charter known as a compromis. Judicial settlement Consists in the reference of a dispute to the ICJ or to other tribunals provided for in existing treaties or which may be provided for in subsequent ones.

Extradition

The surrender of a person by one state to another state where he wanted for prosecution or if already convicted, for punishment. Primarily, based on treaty. In the absence of a treaty, the local state may grant asylum to the fugitive or surrender him to the requesting state. If the latter is made, the same is merely a gesture of comity. Extradition differs from Deportation in that in the latter, the expulsion of an alien by reason of being undesirable, is a unilateral act of the local state and made exclusively for its own interest.

Fundamental Principles in Extradition


It is based on consent, as expressed in a treaty or manifested as an act of goodwill. Principle of specialty It covers any person whether he is a national of the requesting state, of the state of refuge or of another state. Political and religious offenders, as a general rule, are not subject to extradition. In the absence of special agreement, the offense must have been committed within the territory or against the interest of the requesting state. Rule on Double Criminality.

Principle of Specialty

A fugitive who is the subject of extradition can be tried only for: (a) The crime SPECIFIED in the request for extradition; and (b) The crime must be INCLUDED IN THE LIST of offenses in the extradition treaty. The state of refuge may validly object to the request for extradition if the foregoing principle is violated.

Non-list Types of Extradition Treaties

Offenses punishable under the laws of both states by imprisonment of 1 year or more are included among the extraditable offenses.

The Attentat Clause In Extradition Treaty

The murder of the head of state or any member of his family is not be regarded as a political offense for purposes of extradition. Neither is the crime of genocide as defined in the Genocide Convention.

Crime of Genocide

Consists of any of the following acts, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group such as: Killing members of the group. Causing serious bodily or mental harm to members of the group. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Imposing measures intended to prevent births within the group. Forcibly transferring children of the group to another group.

Rule on Double Criminality

The act for which the extradition is sought must be punishable in BOTH the requesting and requested states.

Procedure in Extradition

A request for the fugitives extradition to be presented through diplomatic channels to the state of refuge. It will be accompanied by the necessary papers relative to the identity of the wanted person and the crime he is alleged to have committed or of which he has already been convicted. Upon receipt of the request, the state of refuge will conduct a judicial investigation to ascertain if the crime is covered by the extradition treaty and if there is prima facie case against the fugitive according to its laws. If there is, a warrant of surrender will be drawn and the fugitive will be delivered to the state of origin.

Jurisprudence on Extradition

Where a prisoner en route to India escaped in a French port but was apprehended by a local policeman and delivered back to the British authorities and when France thereafter demanded the prisoners return on the ground that a formal request for his extradition should have been made, it was held that: Great Britain was under no obligation to comply with Frances demand. [Savarkar Case, Oppenheim-Lauterpacht, 703] In Secretary v. Lantion, 343 SCRA 377, it was held that the demand of Mark Jimenes to be informed of the charges against him in the US request for his extradition must fail because such charges were still being evaluated and no complaint for extradition had as yet been filed in court.

RPs Extradition Treaties


With Indonesia (1976) Australia (1988) Canada (1989) Switzerland (1989) Micronesia (1990) Note: All these treaties follow the non-list type of double criminality approach, where there is no traditional listing of crimes, as this could lead to difficulties where the countries denominate crimes differently.

Letters Rogatory

A formal communication from a court in which an action is pending, to a foreign court, requesting that the testimony of a witness residing in such foreign jurisdiction be taken under the direction of court, addressed and transmitted to the court making the request.

Asylum

The power of the state to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection. This has never been recognized as a principle of international law.

Principles of Asylum

Territorial asylum Exists only when stipulated in a treaty of justified by established usage. May depend on the liberal attitude of the receiving state, on the ground of territorial supremacy. Diplomatic asylum Granted only if stipulated in a treaty, or where established usage allows it, but within the narrowest limits, or when the life or liberty of the person is threatened by imminent violence.

Philippine Rule on Diplomatic Asylum

Generally, diplomatic asylum cannot be granted except to members of the official or personal household of diplomatic representatives. On humanitarian grounds, refuge may be granted to fugitives whose lives are in imminent danger from mob violence but only during the period when active danger persists. [In re Alfredo B. Saulo; Haya de la Torre, ICJ Reports, 1950, p. 274]

Chapter 17 Settlement of International Disputes

International Dispute & Situation

International dispute An actual disagreement between States regarding the conduct to be taken by one of them for the protection or vindication of the interests of the other. Situation the initial state of an international dispute.

Pacific modes in settling international disputes


Enquiry Tender of good offices Mediation Conciliation Arbitration Judicial settlement Resort to regional organization

Negotiation The process by which states adjust their differences by an exchange of their view, generally through diplomatic agents. Enquiry Ascertainment of the pertinent facts and issues in a dispute. Tender of Good offices A third party, either alone or in collaboration with others, offers to help in the settlement of a dispute. If the offer is accepted, there is now an exercise of good offices.

Mediation A third party offers to help with a solution, usually based on compromise. Distinguished from good offices in that mediation offers a solution. Good offices merely brings the parties together. Conciliation Active participation of a third party, whose services are solicited by the disputants, in the effort to settle the conflict. The conciliators recommendations are not binding.

Arbitration The solution of the dispute by an impartial third party, usually a tribunal created by the parties themselves under a charter known as a compromis. Judicial settlement Consists in the reference of a dispute to the ICJ or to other tribunals provided for in existing treaties or which may be provided for in subsequent ones. Resort to regional organizations The parties may, of their own volition, or at the instance of the organization itself, assume the obligation of settling the dispute.

Hostile Methods In Settling International Dispute


Severance of diplomatic relations Retorsion Unfriendly, BUT LAWFUL, coercive acts done in retaliation for the unfair treatment and acts of discrimination of another state, e.g., levy of high discriminatory tariffs on goods coming from the other state. Reprisal Unfriendly and unlawful acts in retaliation for reciprocal unlawful acts of another state.

Examples of Reprisal

Freezing of the assets of the nationals of the other state. Embargo: The forcible detention or sequestration of the vessels and other property of the offending state. Pacific blockade: The prevention of entry to or exit from the ports of the offending state of its means of communication and transportation. Non-intercourse: Suspension of all intercourse with the offending state, particularly matters on trade and commerce. Boycott: Concerted suspension of commercial relations with the offending state, with particular reference to a refusal to purchase goods.

Role of the UN in Settling International Disputes

If despite the methods employed by states the dispute is not settled, any or both of the states may ask or the UN itself, muto proprio, may decide on its own authority to take a hand in the settlement principally through the Security Council. The Security Council has jurisdiction to intervene in all disputes affecting international peace and security and in all disputes which, although coming under the domestic jurisdiction clause, have been submitted to it by the parties for settlement. Such disputes may be brought to it by the Security Council itself, the GA, the Sec-General, any UN member or any party to the dispute.

Actions To Be Taken By the Security Council

Recommends appropriate measures, considering any amicable measures already adopted by the parties, or refers the dispute to the ICJ. If unsuccessful, the Security Council itself may recommend such terms of settlement as it may deem appropriate. If the terms of settlement are rejected, it may undertake: - Preventive action; or - Enforcement action.

Preventive Action By The Security Council

Preventive Action: Such measures not involving the use of the armed force, such as complete or partial interruption of economic relations, and of rail, sea, air, postal, telegraphic, radio or other means of communications, and severance of diplomatic relations.

Enforcement Action By The Security Council

If preventive action fails, the Security Council may undertake action by air, sea or land forces as may be necessary to maintain or restore international peace and security, including demonstration, blockades and other operations by air, sea or land forces of members of the UN.

General Assembly Uniting For Peace Resolution, 1950

If the Security Council, because of lack of unanimity, fails to exercise its primary responsibility to maintain peace and security, the General Assembly shall consider the matter immediately, with a view to making recommendations to the members for collective measures, including the use of armed forces when necessary.

Chapter 18 War

Law of War

Jus in bello - law concerning acceptable conduct in war. Jus ad bellum - law concerning acceptable justifications to use armed force.

Meaning of War

The contention between two states, through their armed forces, for the purpose of overpowering the other and imposing such conditions of peace as the victor pleases. War does not always mean actual employment of force. If a nation declares war against another, war exists although no force has yet been used. On the other hand, in case of reprisal, force may already be used, and yet no state of war exists between the contending states.

International Laws of War


The Declaration of Paris of 1856 concerning warfare at sea. The Hague Convention of 1907, concerning the opening of hostilities; the laws and customs of warfare on land; conversion of merchant ships into warships; the laying of automatic submarine contact mines; naval bombardment in times of war; the exercise of the right of capture in naval warfare; the discharge of projectiles from balloons; the adaptation to maritime warfare of the rules of the Geneva Convention of 1864 relating to the treatment of the wounded in land warfare; the rights and duties of neutrals in land warfare; and the rights and duties of neutrals in naval warfare.

The Hague Conventions of 1899 concerning the use of expanding bullets and asphyxiating gases. The Geneva Convention of 1925, concerning the use of asphyxiating, poisonous and other gases and of bacteriological methods of warfare. The Geneva Convention of 1929, concerning the treatment of the sick and the wounded and of prisoners of war. The Declaration of London of 1949, concerning the amelioration of the sick and wounded on land, of shipwrecked armed forces, treatment of prisoners, and protection of civilians in war. The Nuclear Non-Proliferation Treaty

The Hague Convention of 1899


Consists of four main sections and three additional declarations: Main Sections: Sec. I - Pacific Settlement of International Disputes II - Laws and Customs of War on Land III - Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864 IV - Prohibiting Launching of Projectiles and Explosives from Balloons

Declarations: Declaration I - On the Launching of Projectiles and Explosives from Balloons Declaration II - On the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases Declaration III - On the Use of Bullets Which Expand or Flatten Easily in the Human Body.

Hague Convention of 1907

Held from June 15 to October 18, 1907, to expand upon the original Hague Convention, modifying some parts and adding others, with an increased focus on naval warfare. Signed on October 18, 1907, and entered into force on January 26, 1910. Consisted of thirteen sections, of which twelve were ratified and entered into force.

Main Sections: Section I -The Pacific Settlement of International Disputes II The Limitation of Employment of Force for Recovery of Contract Debts III The Opening of Hostilities IV The Laws and Customs of War on Land V The Rights and Duties of Neutral Powers and Persons in Case of War on Land VI The Status of Enemy Merchant Ships at the Outbreak of Hostilities

VII The Conversion of Merchant Ships into War-Ships VIII The Laying of Automatic Submarine Contact Mines IX Bombardment by Naval Forces in Time of War X Adaptation to Maritime War of the Principles of the Geneva Convention XI Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War XII The Creation of an International Prize Court [Not Ratified] XIII - The Rights and Duties of Neutral Powers in Naval War

Two Declarations (HC 1907) Declaration I extending Declaration II from the 1899 Conference to other types of aircraft Declaration II- on the obligatory arbitration

Geneva Protocol to the Hague


Addition to the Convention. Signed on June 17, 1925 and entering into force on February 8, 1928. Permanently bans the use of all forms of chemical and biological warfare in its single section, entitled Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.

Protocol result of the increasing public outcry against chemical warfare following the use of mustard gas and similar agents in World War I, and fears that chemical and biological warfare could lead to horrific consequences in any future war. Augmented by the Biological Weapons Convention (1972) and the Chemical Weapons Convention (1993).

Geneva Conventions

1st Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864, last revision in 1949) 2nd Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of the 1907 Hague Convention X) 3rd Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted in 1929, last revision in 1949) 4th Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War" (first adopted in 1949, based on parts of the 1907 Hague Convention IV)

Protocols to Geneva Conventions

Protocol I (1977): Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 12 January 2007 it had been ratified by 167 countries. Protocol II (1977): Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of 12 January 2007 it had been ratified by 163 countries. Protocol III (2005): Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by 17 countries and signed but not yet ratified by an additional 68 countries.

Outlawry of War

Covenant of the League of Nations provides for conditions for the right to go to war. Kellog-Briand Pact of 1928 (also know as the General Treaty for Renunciation of War) forbids war as an instrument of national policy. UN Charter, Art. 2 prohibits the threat or use of force against the territorial integrity or political independence of s state.

Commencement of War

By declaration of war (Hague Convention of 1907) By rejection of an ultimatum By commission of an act of force regarded by one of the belligerents as an act of war.

Effects of Outbreak of War

The laws of peace cease to regulate the relations between the belligerents and superseded by the laws of war. Third states are governed by the laws of neutrality in their dealing with the belligerents. Diplomatic and consular relations are terminated, and their respective representatives are allowed to return to their own countries. Treaties of political nature are automatically canceled. Exception are those treaties intended to operate during the war. Multilateral treaties dealing with technical or administrative matters, like postal conventions, are merely suspended as between the belligerents.

Individuals are impressed with enemy character under: (a) nationality test: if they are nationals of the other belligerent, wherever they may be; (b) domiciliary test: if they are domiciled aliens in the territory of the other belligerent, on the assumption that they contribute to its economic resources; and (c) activities test: if, being foreigners, they nevertheless participate in the hostilities in favor of the other belligerent. Corporations/juridical persons are regard as enemies if majority or a substantial portion of their capital stock is in the hands of enemy nationals or if they have incorporated in the territory or under the laws of the other belligerent.

Enemy public property found in the territory of the other belligerent at the outbreak of hostilities is, with certain exceptions, subject to confiscation. Enemy private property may be sequestered, subject to return, reimbursement or other disposition after the war in accordance with the treaty of peace.

Participants in War

Combatants Those who engage directly in the hostilities. a) Non-privileged: those who do not enjoy the privileges of prisoners of war [spies and mercenaries] b) Privileged: those who enjoy the privileges of POW. Non-combatants Those who do not participate in the war.

Privileged Combatants

Regular armed forces Ancillary services [doctors and chaplains] Those who accompany the armed forces [e.g. correspondents] Levees en masse Franc tireurs Officers and crew of merchant vessels who forcibly resist attack.

Levees en masse

Inhabitants of unoccupied territory who, On approach of the enemy, Spontaneously take up arms to resist the invading troops without having had time to organize themselves, Provided they carry arms openly and observe the laws and customs of war.

Franc Tireurs (Guerillas)


To be considered as combatants if: They are commanded by a person responsible for his subordinates; They wear a fixed distinctive emblem recognizable at a distance; They carry arms openly; and They conduct their operations according to the laws and customs of war.

Treatment Entitled To Combatants (Geneva Convention of 1949)


Right to be accorded the proper respect commensurate with their rank. Right to adequate food and clothing; Right to sanitary quarters; Right to medical assistance; Right to refuse to give military information or render military service against their own state; and Right to communicate with their own families.

Spies

Those individuals, acting clandestinely or under false pretenses, Obtains or seeks to obtain information in the zone of operations of a belligerent, With intention of communicating it to the hostile party. Note: When captured, spies may be proceeded against under the municipal law of the other belligerent, although under the Hague Convention, they may not be executed without trial. But if capture after they have succeeded in rejoining their army, they must be treated as POWs.

Mercenaries
Those specially recruited to fight for a particular armed conflict as a combatant, not as an adviser; Who must take direct part in the hostilities; and Motivated essentially by the desire for personal gain, and in fact provided with material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party Note: Protocol I to the 1949 Geneva Convention provides that mercenaries have no right of combatants or of POWs.

Principles In The Conduct Of Hostilities


Principle of Military Necessity Principle of Humanity Principle of Chivalry

Principle of Military Necessity

The belligerent may employ any amount of force to compel the complete submission of the enemy with the least possible loss of lives, time and money. This principle was used to justify the atomic bombing of Hiroshima and Nagasaki.

Principle of Humanity

Prohibits the use of any measure that is not absolutely necessary for the purposes of the war, such as the poisoning of wells, use of dumdum or expanding bullets, etc. The Humanitarian Convention in Armed Conflicts, 1977, prohibits attack against the civilian population. Distinction must however be made at all times between persons taking part in the hostilities and members of the civilian population, to spare the latter of the effects of war as much as possible. IHL applies even on action taken by the UN.

Principle of Chivalry

Requires belligerents to give proper warning before launching a bombardment. Prohibits belligerents from employing perfidious or treacherous methods in conducting war, such as illegal use of Red Cross emblems. However, ruses and stratagems of war are allowed provided they do not involve the employment of treacherous methods. False flags are not allowed in LAND WARFARE. But WAR VESSELS may sail under that flag not their own, subject only to the requirement that they haul it down and hoist their own flag before attacking.

Protected Persons & Object under IHL

Persons: the wounded, the sick, the shipwrecked, prisoners of war and other persons deprived of their freedom in relation to conflict, civilians and other persons not or no longer taking part in the fighting, medical and religious personnel, the staff of relief operations, the staff of civil defense organizations and mediators. Objects: Include cultural property and all other civilian objects as well as military medical facilities and ambulances.

Occupied Territory

Territory is considered "occupied" when it is actually placed under the authority of foreign armed forces, whether partially or entirely, without the consent of the domestic government. The occupation extends only to the territory where such authority has been established and can be exercised. IHL applies in all situations where these requirements are fulfilled, regardless of the reasons and motives that lead to the occupation (e.g. stated intention to "liberate" the people of a country) and regardless of its legality under international law.

Laws on Belligerent Occupation


Hague Regulations of 1907 Fourth Geneva Convention of 1949 Certain provisions of the First Protocol of 1977 Additional to the Geneva Conventions of 1949

Qualification of Belligerents

To be commanded by a person responsible for his subordinates; To have a fixed distinctive emblem recognizable at a distance; To carry arms openly; and To conduct their operations in accordance with the laws and customs of war. In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

Prohibited Acts during Belligerent Occupation (Hague 1907)


Employment poison or poisoned weapons; Killing or wounding treacherously individuals belonging to the hostile nation or army; Killing or wounding an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion; Declaring that no quarter will be given; Employing arms, projectiles, or material calculated to cause unnecessary suffering;

Making improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention; Destroying or seizing the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war; Declaring abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war.

Prohibited Acts under Geneva Conventions 1949

violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Meaning of Belligerent Occupation


The temporary military occupation of the enemys territory during the war. The occupant need not have its feet planted on every square foot of the territory. It needs only to maintain effective control and military superiority in the territory, being able to send, in case of attack, sufficient forces to assert its authority within a reasonable time. [Tan Se Chiong v. Director of Prisons, L-5920, June 25, 1955] Effects: No change of sovereignty, only the exercise is suspended. Political laws, except treason, are suspended. Municipal laws remain in force. [Laurel v. Misa, 77 Phil. 856]

Rights and Duties of Belligerent Occupant

Re-establish or continue the processes of orderly administration, including enactment of laws. Adopt measures for the protection of the inhabitants. Requisition (sequester) goods, subject to cash or future payment, and other services in non-military projects. Note: CONSCRIPTION is prohibited.

Demand taxes and contribution to finance military and local administrative need. Note: FORAGING, i.e. the actual taking of provisions for men and animals by the occupation troops where lack of time makes it inconvenient to obtain supplies by usual or ordinary methods. This is allowed provided compensation is paid after the end of the war. Issue legal currency Use of enemy property, whether public or private. But private property shall be subject to indemnification or return at the end of the war. [Republic v. Lara, 96 Phil 170]

Right of Angary

The right of a belligerent state in cases of EXTREME NECESSITY; To destroy or use NEUTRAL PROPERTY on its own or on enemy territory or on the high seas.

Non-hostile Intercourse

Flag of truce white in color, indicates the desire to communicate with the enemy. The agent, called PARLEMENTAIRE, enjoy inviolability, and is entrusted with the duty of negotiating with the enemy. Cartels agreements regulating the intercourse during the war, usually on the exchange of prisoners of war. Passport written permission given by the belligerent government to the subjects of the enemy to travel generally in belligerent territory.

Safe conduct permission given to an enemy subject or to any enemy vessel allowing passage between defined points. Safeguard protection granted by a commanding officer either to enemy persons or property within his command, usually with an escort or convoy of soldier providing needed protection. License to trade permission given by competent authority to individuals to carry on trade though there is a state of war.

Suspension of Hostilities

Suspension of arms temporary cessation of hostilities by agreement of the LOCAL COMMANDERS for such purposes as gathering of the wounded and burial of the dead. Armistice suspension of hostilities within a certain area or in the entire region of the war, agreed upon by the belligerent, usually for the purpose of arranging the terms of peace. Ceasefire unconditional stoppage of all hostilities, usually order by an international body. Truce conditional cease-fire for political purposes. Capitulation surrender of military forces, places or districts, in accordance with the rules of military honor.

Termination of War

Simple cessation of hostilities usually, what applies is the PRINCIPLE OF UTI POSSIDETIS with respect to property and territory posses by the belligerents. Conclusion of a negotiated treaty of peace. Defeat of one of the belligerent, followed by a dictated treaty of peace, or annexation of the conquered territory.

Principle of Uti Possidetis

Allows retention of property or territory in the belligerents actual possession at the time of the cessation of hostilities.

Postliminium

The revival or reversion to the old laws and sovereignty of territory which ahs been under belligerent occupation once control of the belligerent occupant is lost over the territory affected. [Co Kim Chan v. Valdez Tan The, 75 Phil 113] Judicial acts and proceedings during the occupation which were not of political complexion remain valid even after the liberation. [Ognir v. Director of Prison, 80 Phil 401]

Punishment for Violations of Laws of War


During conflict: May consist of a specific, deliberate and limited violation of the laws of war in reprisal. Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war but only after facing a "competent tribunal" (GC III Art 5). At that point they become an unlawful combatant but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV Art 5.

Spies and "terrorists" are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant. Depending on the circumstances, they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution..

The laws of war neither approve nor condemn such acts, which fall outside their scope. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason. After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of law.

International Criminal Court

Permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. Note: Currently ICC cannot as yet exercise jurisdiction over the crime of aggression as state parties have to agree first on the definition.

States also wanted to add terrorism and drug trafficking as crimes under ICC jurisdiction. Problem is they are unable to agree on the legal definition of terrorism. As to drug trafficking, they are afraid it might overwhelm ICCs limited resources. Terrorism as commonly understood - Refers only to those violent acts which are intended to create fear (terror), are perpetrated for an ideological goal (as opposed to a lone attack), and deliberately target or disregard the safety of non-combatants.

Terrorism Under R.A. 9372

SEC. 3. Terrorism.- Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: a. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters); b. Article 134 (Rebellion or Insurrection); c. Article 134-a (Coup d' Etat), including acts committed by private persons; d. Article 248 (Murder); e. Article 267 (Kidnapping and Serious Illegal Detention); f. Article 324 (Crimes Involving Destruction), or

Under Presidential Decree No. 1613 (The Law on Arson); Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968); Republic Act No. 6235 (AntiHijacking Law); Presidential Decree No. 532 (Anti-Piracy and AntiHighway Robbery Law of 1974); and, Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives) Thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended

4 Elements Crime of Terrorism under Phil Law

The commission of one or more of the crimes specified in Section 3 of the law, That sows and creates a condition of widespread and extraordinary fear and panic among the populace, For the purpose of coercing the government, and To give in to an unlawful demand.

ICC came into being on 1 July 2002 the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force. It can only prosecute crimes committed on or after that date. The official seat of the court is in The Hague, Netherlands, but its proceedings may take place anywhere. As of June 2009, 108 states have become members of the Court.

Chile will become the 109th state party on 1 September, and a further 39 countries have signed but not ratified the Rome Statute, including the Philippines. However, a number of states, including China, Russia, India and the United States, are critical of the court and have not joined.

Exercise of Jurisdiction by ICC (Complementarity Jurisdiction)

Generally: Only in cases where the accused is (a) a national of a state party, (b) the alleged crime took place on the territory of a state party, or (c) a situation is referred to the court by the United Nations Security Council. The court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.

Primary responsibility to investigate and punish crimes is therefore left to individual states. As of June 2009, the court has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur. The court has indicted fourteen people; seven of whom remain free, two have died, and five are in custody. The ICC's first trial, of Congolese militia leader Thomas Lubanga, began on 26 January 2009.

Crimes within the Jurisdiction of ICC


Crime of Genocide Crimes against humanity War crimes Crime of aggression

Meaning of Genocide

Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, Such as: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group. [Art. 2, UN Convention on the Prevention and Punishment of the Crime of Genocide]

War Crimes

Those violations of the law or customs of war which include but are not limited to, murder, ill-treatment or deportation to slavelabor or for any other purpose of civilian population of or in occupied territory, murder of ill-treatment of prisoners of war, or of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. [Nuremberg Charter and Judgment]

Crimes Against Humanity


Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecution on political, racial or religious grounds. When such acts are done or in connection with any crime against peace or any war crime. [Ibid] Note: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity is a crime under international law.

Crime Against Peace or Crime of Aggression

Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned above. [Nuremberg Charter and Judgment]

Complementarity Jurisdiction

ICC intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 ICC Statute provides that a case is inadmissible if: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.

Article 20, paragraph 3, ICC Statute specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

Organizational Structure of ICC


Governing Body: Assembly of States Parties. Four Court organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry

Assembly of States

Acts as court's management oversight and legislative body. One (1) representative from each state party entitled to one (1) vote. Every effort has to be made to reach decisions by consensus If consensus cannot be reached, decisions are made by vote. Presided over by a president and two vice-presidents, who are elected by the members to three-year terms.

The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require. Sessions are open to observer states and nongovernmental organizations. Elects the judges and prosecutors, Decides the court's budget, adopts important texts such as the Rules of Procedure and Evidence.

Provides management oversight to the other organs of the court. Article 46 of the Rome Statute allows the Assembly to remove from office a judge or prosecutor who "is found to have committed serious misconduct or a serious breach of his or her duties" or "is unable to exercise the functions required by this Statute". The states parties cannot interfere with the judicial functions of the court. Disputes concerning individual cases are settled by the Judicial Divisions.

Courts Presidency

Comprises the President and the First and Second Vice-Presidents. They are three judges of the court elected to the Presidency by their fellow judges for a maximum of two three-year terms). The current President is Sang-Hyun Song, who was elected on 11 March 2009 Presidency is responsible for the proper administration of the court (apart from the Office of the Prosecutor).

Judicial Divisions of ICC Consist of eighteen (18) Judges organized into three (3) divisions: Pre-Trial Division Trial Division and Appeals Division

Election of Judges

Elected to the court by the Assembly of States Parties. Term: nine years with no re-election. Must be nationals of states parties to the Rome Statute No two judges may be nationals of the same state. Must be person of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.

Disqualification of Judges

A Judge may be disqualified from case by request from Prosecutor or any person being investigated or prosecuted Ground: Impartiality might reasonably be doubted on any ground Request for the disqualification of a judge to be decided by an absolute majority of the other judges.

Removal of Judges

A judge may be removed from office. Ground: If found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions. Removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.

Office of Prosecutor

Responsible for conducting investigations and prosecutions. Headed by the Prosecutor, who is assisted by two Deputy Prosecutors. Statute provides that the Office of the Prosecutor shall act independently. No member of the Office may seek or act on instructions from any external source, such as states, international organizations, non-governmental organizations or individuals

Three (3) circumstances when Prosecutor may investigate


When a situation is referred to him by a state party; When a situation is referred to him by the United Nations Security Council, acting to address a threat to international peace and security; or When the Pre-Trial Chamber authorizes him to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organizations.

Disqualification of Prosecutor

Any person being investigated or prosecuted may request for the disqualification of a prosecutor. Ground: Doubt of Prosecutors impartiality Requests for the disqualification of prosecutors to be decided by the Appeals Division.

Removal of Prosecutor

A prosecutor may be removed from office by an absolute majority of the states parties if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions. As of June 2009, the Prosecutor is Luis Moreno-Ocampo of Argentina, who was elected by the Assembly of States Parties on 21 April 2003 for a term of nine years.

Rights of Accused (Rome Statute)


In all proceedings: presumed innocent until proven guilty beyond reasonable doubt. During Investigation: Right to be fully informed of the charges; Right to have a lawyer appointed, free of charge; Right to a speedy trial; and Right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf.

Victim Participation & Reparation

A novel innovation since for the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court. Participation before the Court may occur at various stages of proceedings and may take different forms. Judges to give directions as to the timing and manner of participation. Participation in the Court's proceedings will in most cases take place through a legal representative and will be conducted in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial.

The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is this balance between retributive and restorative justice that will enable the ICC, not only to bring criminals to justice but also to help the victims themselves obtain justice. Victims and Witnesses Unit established to provide "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses.

Procedures for the "Protection of the victims and witnesses and their participation in the proceedings also set out. Also established is an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives. Article 79 of the Rome Statute establishes a Trust Fund to make financial reparations to victims and their families.

ICC Current Investigations

Situation

Date of Indicted Persons Referral/Inve stigated Dec. 2003/ July 2004 Joseph Kony Vincent Otti Raska Lukwiya Okot Odhiambo Dominic Ongwen

Status

Northern Uganda

Fugitive Died 2007 Died 2006 Fugitive

Situation

Date of Indicted Persons Referral/Inv estigated


Thomas Lubanga Germain Katanga Mathieu Ngudjolo Chui Bosco Ntaganda

Status

Democratic Mar. 2004/ Republic of June 2004 Congo

In Custody In Custody In Custody Fugitive

Situation

Date of Indicted Persons Referral/Inv estigated


Dec. 2004/ May 2007 Jean-Pierre Bemba

Status

Central African Republic

In Custody

Situation

Date of Indicted Persons Referral/Inv estigated


UN Security Council Mar 2005/ June 2005 Ahmed Haroun Ali Kushayb Omar al-Bashir Bahr Idriss Abu Garda

Status

Darfur, Sudan

Fugitive Fugitive Fugitive Appearing Voluntarily

Chapter 19 Neutrality

Meaning of Neutrality & Neutralization


Neutrality: non-participation, directly or indirectly, in a war between the contending belligerents. Neutralization: the result of a treaty wherein the conditions of the status are agreed upon by the neutralized state and other signatories. Neutrality exists only during war and is governed by the law of neutrality. Neutralization exists both in times of peace and war and governed by the agreement entered into by and between the parties.

Rules of Neutrality
Neutrals have the right and duty: To abstain from taking part in the hostilities and from giving assistance to either belligerent by: (a) sending of troops, (b) official grant of loans, and (c) carriage of contraband. To prevent its territory and other resources from being used in the conduct of hostilities by allowing it to be used as base of operations or setting up of wireless stations in its territory. Note: 24-hour rule for vessels to leave the neutral port.

To acquiesce to certain restrictions and limitation which the belligerents may find necessary to impose such as: blockade and visit and search Blockade: a hostile operation by means of which vessels and aircraft of one belligerent prevent all other vessels, including those of neutral states, from leaving or entering the port or coasts of the other belligerent, the purpose being to shut off the place from international commerce and communications with other states. Note: a pacific blockade applies only to vessels of blockaded states, not to those of other states, unlike hostile blockade.

Law on Contraband

Refers to goods which, although neutral property, may be seized by a belligerent because they are useful for war and are bound for a hostile destination. Kinds of contrabands: (a) absolute, such as guns and ammunition, which are useful for war under all circumstances, (b) conditional, such as food and clothing, which have both civilian and military utility, and (c) free list, such as medicines, which are exempt from the law on contraband for humanitarian reasons.

Doctrines Applied on Contrabands

Doctrine of ultimate consumption: goods intended for civilian use which may ultimately find their way to and be consumed by belligerent forces may be seized on the way. Doctrine of infection: innocent goods shipped with contraband may also be seized. Doctrine of continuous voyage or continuous transport: goods reloaded at an intermediate port on the same vessel, or reloaded on another vessel or other forms of transportation may also be seized on the basis of the doctrine of ultimate consumption.

Engaging in un-neutral service

Acts of a more hostile character than carriage of contraband or breach of a blockade, undertaken by mechant vessels of a neutral state in aid of any of the belligerent. Examle transport of individual passengers who are members of the armed forces of the enemy.

Right to Visit and Search

Belligerent warships and aircraft have the right to visit and search neutral merchant vessels to determine whether they are in any way connected with the hostilities. Vessels captured for engaging in hostile activities are considered as prize. However, they may not be confiscated summarily. A prize court, which is a municipal tribunal, must be established in the territory of the belligerent which captured the prize but applying international law in the absence of special municipal legislation on prize.

Prize Court

A court constituted in accordance with municipal law organized by a belligerent for the purpose of passing upon the validity of maritime captures. It may be established by the belligerent in its own state, in occupied territory, or in territory of an ally. It applies international, unless there is special municipal law on prize.

Ransom Bill

The contract by virtue of which a prize is released upon repurchase of the right which the captors had at the time to the property.

Termination of Neutrality

Upon conclusion of a treaty of peace between the belligerents. When the neutral state itself joins the war.

End of Subject