- Law that deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relations with persons, natural or juridical (American Third Restatement) Main Divisions: 1. Laws of Peace; 2. Laws of War; 3. Laws of Neutrality Basis of International Law ! Law of Nature !"ool " #ased on rules of conduct disco$era#le #y e$ery indi$idual in his own conscience and through application of right reasons % Positivist !"ool " agreement of so$ereign states to #e #ound #y it (e&press in con$entional law, implied in customary law, and presumed in general principles' ( E!le!ti! or #roatian !"ool " a compromise #etween the first % schools and su#mits that international law is #inding partly #ecause it is good and right and partly #ecause states agreed to #e #ound #y it our!es of Pu$li! International Law: ! Primary " a. international treaties an% !onventions& (i' law-ma)ing treaty (traite- loi'; (ii' contract treaty (traite- contract) b. international !usto's& *e+uisites, (i'Pre$ailing practice #y a num#er of states; (ii'repeated o$er a considera#le period of time and; (iii'attended #y opinio juris or sense of legal o#ligation !. (eneral )rin!i)le of law. % Su#sidiary " a -udicial decisions; # writings of pu#licists; and c .d$isory /pinions of the 01- Constitution vs. Treat* 2enerally, the treaty is rejected in the local forum #ut is upheld #y international tri#unals as a demanda#le o#ligation of the signatories under the ma&im pacta sunt servanda. 3he treaty is always su#ject to +ualification or amendment #y a su#se+uent law, and the same may ne$er curtail or restrict the scope of the police power of the State (Ichong v. Hernandez, GR no.-!""#, $a% &', '"#!) +un!tions of International Law: ! promote international peace and security; % foster friendly relations among nations and discourage use of force in resolution of difference among them; ( pro$ide for orderly regulation of conduct of states in their mutual dealings; and 4 ensure international cooperation in pursuit of certain common purposes of economic, social, cultural, or humanitarian character INTERNATIONAL LAW MUNICIPAL LAW ! Law of coordination ! Law of su#ordination (issued #y political superior' % *egulates relation of states and other international persons % *egulates relations of indi$iduals among themsel$es or with their own states ( 5eri$ed principally from treaties, international customs and general principles of law ( 1onsists mainly of statutory enactments, and to lesser e&tent e&ecuti$e orders and judicial pronouncements 4 *esol$ed thru state-to-state transactions 4 *edressed thru local administrati$e and judicial processes 6 1ollecti$e responsi#ility #ecause it attaches directly to the state and not to its nationals 6 7reach of which entails indi$idual responsi#ility Do!trine of in!or)oration " international law are adopted as part of a state8s municipal law, #y a general pro$ision or clause usually in its 1onstitution (Sec %, .rt 00, !9:; 1onstitution' Do!trine of transfor'ation " re+uires the enactment #y the legislati$e #ody of such international law principles as are sought to #e part of municipal law II. UB,ECT O+ INTERNATIONAL LAW: - entity that has rights and responsi#ilities under international law and ha$ing capacity to maintain its rights #y #ringing international claims, includes, ! States, independent and dependent; % 1olonies and dependencies; ( <andates and trust territories; 4 3he =atican; 6 3he >nited Nations; ? 7elligerent 1ommunities; ; 0nternational administrati$e 7odies; and : 0ndi$iduals, to a certain e&tent Belli(erent Co''unit* " group of re#els under an organized ci$il go$ernment who ha$e ta)en up arms against legitimate go$ernment When recognized, considered as a separate state for purposes of conflict and entitled to all rights and su#jected to all o#ligations of a full- pledged #elligerent under laws of war Unite% Nations " international organization created at San @rancisco 1onference held in the >S from .pril %6 to -une %?, !946 >N succeeded the League of Nations and is go$erned #y a charter that came into force on /cto#er %4, !946 Prin!i)al Pur)oses of UN ! <aintain international peace and security; % 5e$elop friendly relations among nations; ( .chie$e international cooperation, and 4 1enter for harmonizing actions of nations for attainment of these common goals -ualifi!ations for Me'$ers"i): 1. must #e state; 2. must #e peace lo$ing; 3. must accept o#ligations of mem#er-states contained in 1harter; and 4. must #e a#le and willing to carry out such o#ligation Prin!i)al Or(ans of UN: ! General Assembly " central organ where all mem#ers are represented 1lassification of functions, deli#erati$e, super$isory, financial, electi$e, constituent % Security Council " organ responsi#le for maintenance of peace and security, underta)e pre$enti$e and enforcement actions ( Economic and Social Council " e&erts efforts towards higher standards of li$ing, solutions of international economic, social, health and related pro#lems, uni$ersal respect for and o#ser$ance of human rights and fundamental freedoms 4 Trusteeship Council " organ charged with administration of 0nternational 3rusteeship System (idle council'; 6 International Court of Justice " judicial organ of >N; World 1ourt go$erned #y Statute which is anne&ed to and made part of >N charter; ,uris%i!tion: decide issues referred to it (consensual' a. interpretation of treaty; b. +uestion of international law; c. e&istence of fact constituting a #reach of international o#ligation; d. nature or e&tent of the reparation to #e made for the #reach of an international o#ligation ? Secretariat " chief administrati$e organ of >N tate . a group of people, li$ing together in a fi&ed territory, organized for political ends under an independent go$ernment and capa#le of entering into international relations with other states Creation of tate: /RUIA 0 1 !#y peaceful ac+uisition of Independence (Philippines' ; % #y Re$olution (>S.'; ( #y Unification of se$eral states (0taly'; 4#y ecession (7angladesh'; 6#y Agreement (Netherlands'; and ?#y Attainment of ci$ilization (-apan' E2tin!tion of tate: / MA 0 D 0 EP1 ! /$erthrow of go$ernment resulting in anarchy; % Emigration en masse of its population; ( Anne&ation; 4 Merger or unification& 6 Dismem#erment; ? Dissolution of federal union; ; Partial loss of independence Prin!i)le of tate Continuit* . the state continues as a juristic #eing notwithstanding changes in its circumstances pro$ided only that such change do not result in the loss of any of its essential elements III. RECO#NITION act #y which a state ac)nowledges e&istence of another state, go$ernment or #elligerent community and indicates its willingness to deal with the entity as such under rules of international law T"eories, 1. Declaratory " merely affirms an e&isting fact li)e the possession #y the state of the essential elements 5iscretionary and political; 2. Constitutive - it is the act of recognition that constitutes the entity into an international person 1ompulsory and legal; may #e compelled once the elements of a state are esta#lished O$3e!ts, 1. State " generally held to #e irre$oca#le and imports the recognition of its go$t 2. Government " may #e withdrawn and does not necessarily signify the e&istence of a state, as the go$ernment may #e that of a mere colony 3. Belligerent community " re#els are accorded international personality only in connection with the hostilities they are waging 4in%s: 1. e&press or implied; and 2. conditional or permanent Effe!ts of Re!o(nition of a tate or #overn'ent: 1. 5iplomatic relations; 2. *ight to sue in courts of recognizing state; 3. *ight to possession of properties of predecessor on the reorganizing state 4. .ll acts of the recognized state or go$ernment are $alidated retroacti$ely, pre$enting the recognizing state from passing upon their legality in its own courts Con%itions for Re!o(nition of Belli(eren!*: 1. organized ci$il go$ernment; 2. re#els occupy a su#stantial portion of territory; 3. conflict is serious and outcome is uncertain; 4. re#els are willing to o#ser$e the laws of war a#sence of one " state of insurgency Effe!ts of Re!o(nition of Belli(eren!*: 1. *esponsi#ility for acts of re#els resulting to injury to nationals of recognizing state shall #e shifted to re#el go$ernment; 2. 3he legitimate go$ernment recognizing the re#els as #elligerents shall o#ser$e lawsAcustoms of war in conducting hostilities; 3. 3hird states recognizing #elligerency should maintain neutrality; 4. *ecognition is only pro$isional and only for purposes of hostilities Wilson5To$ar Do!trine " precludes recognition of go$ernment esta#lished #y re$olution, ci$il war, coup d(etat or other forms of internal $iolence until the freely elected representati$es of people ha$e organized a constitutional go$ernment ()cuadorian *oreign $inister To+ar and ,- .res. /oodro0 /ilson) ti'son Do!trine " precludes recognition of any go$ernment esta#lished as result of e&ternal aggression (>S Sec of State Benry Lewis Stimson' Estra%a Do!trine " dealing or not dealing with the go$ernment esta#lished through a political uphea$al is not a judgment on the legitimacy of the said go$ernment (<e&ican <inister 2enaro Cstrada' Re6uisites for re!o(nition %e 3ure: 1. 2o$ernment is sta#le and effecti$e; 2. No su#stantial resistance to its authority; 3. 3he go$ernment must show willingness and a#ility to discharge its international o#ligations; and 4. 3he go$ernment must enjoy popular consent or appro$al of the people a#sence of one " recognition de facto RECO#NITION DE ,URE RECO#NITION DE +ACTO ! *elati$ely permanent ! Pro$isional (duration of armed struggle' % $ests title to properties of go$ernment a#road % does N/3 $est title to properties of go$ernment a#road ( #rings a#out full diplomatic relations ( limited to certain juridical relations I7. +UNDAMENTAL RI#8T O+ TATE /TILE 0 1 ! E&istence and self-defense; % So$ereignty and Independence& ( E+uality; 4 Territorial 0ntegrity and jurisdiction; 6 Legation or diplomatic intercourse .. RI#8T TO E9ITENCE AND EL+: DE+ENE most comprehensi$e as all other rights of state flow from it; state may ta)e measures including use of force as may #e necessary to counteract any danger to its e&istence A((ression " use of armed force #y a state against so$ereignty, territorial integrity or political independence of another state or in other manner inconsistent with the >N charter Re6uisites for Pro)er E2er!ise of Ri("t of elf:%efense: ! armed attac); % self-defensi$e action ta)en #y attac)ed state must #e reported immediately to Security 1ouncil; and ( such action shall not in any way affect right of Security 1ouncil to ta)e at any time action as it deems necessary to maintain or restore international peace and security . RI#8T O+ O7EREI#NT; AND INDEPENDENCE overei(nt* . totality of the powers, legal competence, and pri$ileges arising from customary international law, and not dependent on the consent of another state In%e)en%en!e . means freedom from control #y other state or group of states and not freedom from the restrictions that are #inding on all states forming the family of nations; carries with it #y necessary implication the correlati$e duty of non-inter$ention C. RI#8T O+ E-UALIT; e$ery state is entitled to same protection and respect as are a$aila#le to other state under rules of international law D. RI#8T TO TERRITORIAL INTE#RIT; AND ,URIDICTION Co')onents of t"e Territor* of A tate: ! Terrestrial " land mass on which the inha#itants li$e; ! "aritime and #luvial a internal or national 0aters " #odies of water within the land mass, among them are, (i' ri$ers " which may #e (a' national; (#' #oundary; (c' international (i.' Thal0eg 1octrine " for #oundary ri$ers, in the a#sence of an agreement #etween the riparian states, the #oundary line is laid on the middle of the main na$iga#le channel (i7' $iddle o2 the 3ridge 1octrine " where there is a #ridge o$er a #oundary ri$er, the #oundary line is middle or center of the #ridge (ii' #ays and gulfs (iii' strait +. Archipelagic 0aters ARC8IPELA#O DOCTRINE . 3he waters around, #etween and connecting the islands of the archipelago regardless of their #readth and dimensions are to #e treated as internal waters Two <in%s of ar!"i)ela(o: 1. coastal . situated close to a mainland and may #e considered a part thereof; eg Loften 0slands, Norway 2. mid-ocean " situated in the ocean at such distance from the coasts of firm land eg 0ndonesia c 3erritorial sea d Su#marine area $! Aerial domain MODE O+ AC-UIRIN# TERRITOR; LO O+ TERRITOR; ! 5isco$ery and occupation ! 5ereliction % 1ession % 1ession ( .ccretion ( 1on+uest 4 Prescription 4 Crosion, or other natural causes 6 1on+uest and su#jugation 6 Prescription Bases of ,uris%i!tion: 1. Territorial principle " $ests jurisdiction in state where offense was committed (Art. '4, 566); 2. %ationality principle " $est jurisdiction in state of offender (Art. '#, 566, ta& laws'; 3. &rotective principle " $est jurisdiction in state whose national interests is injured or national security compromised (counterfeiting, treason, espionage'; 4. &assive personality principle " $ests jurisdiction in state of offended party 5. 'niversality principle " $est jurisdiction in state which has custody of offender of uni$ersal crimes (piracy, genocide'; #eno!i%e " acts committed with intent to destroy, in whole and in part a national, ethnic, racial, or religious group #y, ! )illing mem#ers of the group; % deli#erately inflicting on group conditions of life calculated to #ring a#out its physical destruction in whole or in part; ( imposing measures intended to pre$ent #irths within the group; 4 causing serious #odily or mental harm to mem#ers of the group; and 6 forci#ly transferring children of the group to another +ive Air of +ree%o's for !"e%ule% International ervi!es: ! freedom to fly across foreign territory without landing; % freedom to land for non-traffic purposes; ( freedom to put down traffic originating in state of aircraft; 4 freedom to em#ar) traffic destined for state of aircraft; and 6 freedom to em#ar) traffic destined for, or to put down traffic coming from, third state E2e')tions fro' ,uris%i!tion: ! 5octrine of State 0mmunity; % .ct of State 5octrine " court of one state will not sit in judgment o$er acts of go$ernment of another state done in its territory ( 5iplomatic 0mmunity; 4 0mmunity of >N Specialized agencies, other 0nternational /rganizations, and its /fficers; 6 @oreign <erchant $essels e&ercising the right of innocent passage; ? @oreign armies passing through or stationed in the territory with the permission of the State; ; Warships and other pu#lic $essels of another State operated for non- commercial purposes Rules on ,uris%i!tion Un%er t"e 7isitin( +or!es A(ree'ent ! C&clusi$e jurisdiction o$er >S personnel a /ffenses punisha#le under Phil laws #ut not under >S laws " .hilippine # /ffenses punisha#le under >S laws #ut not under Phil laws - ,- % 1oncurrent jurisdiction - Phil authorities shall ha$e primary right to e&ercise jurisdiction o$er all offenses committed #y >S personnel e2!e)t, a $iolations of >S military laws; # /ffenses punisha#le under >S laws #ut not under Phil laws; c /ffenses solely against the property or security of the >S or against the property or person of >S personnel; d /ffenses arising out of any act or omission done in performance of official duty Din a, +, c, 7 d a#o$e, the >S <ilitary authorities ha$e primary jurisdiction ( 3he authorities of either go$ernment may re+uest the authorities of the other go$ernment to wai$e the primary right to e&ercise jurisdiction in a particular case 4 >pon re+uest #y the >S, Phil authorities may wai$e primary jurisdiction o$er offenses committed #y >S personnel e8cept cases o2 particular importance to the .hilippines such as $iolations of the Heinous 6rimes Act, Anti-1rugs a0, Anti-6hild A+use a0. Do!trine of 8ot Pursuit Re6uisites: 1. Pursuit commence from internal water, territorial sea or contiguous zone of pursuing state; 2. 1ontinuous and una#ated; 3. 1onducted #y warship, military aircraft, go$ernment ships authorized for the purpose; 4. 1eases as soon as the ship #eing pursued enters the territorial sea of its own, or of a third, state E. RI#8T O+ LE#ATION right of state to maintain diplomatic relations with other states 2o$erned #y the =ienna 1on$ention on 5iplomatic *elations (!9?!' A!tive ri("t of le(ation " send diplomatic representati$es Passive ri("t of le(ation " recei$e diplomatic representati$es
A(ents of Di)lo'ati! Inter!ourse: ! head of state; % foreign secretary of minister; or ( mem#ers of diplomatic ser$ice +un!tions of Di)lo'ati! Missions: ! representing sending state in recei$ing state; % protecting in recei$ing state interests of sending state and its nationals; ( negotiating with go$ernment of recei$ing state; 4 promoting friendly relations #etween sending and recei$ing states and de$eloping their economic, cultural and scientific relations; 6 ascertaining #y all lawful means conditions and de$elopments in recei$ing state and reporting thereon to go$ernment of sending state; and ? in some cases, representing friendly go$ernments at their re+uest
A(reation . process in appointment of diplomatic en$oy Where states resort to an informal in+uiry (en+uiry' as to the accepta#ility of a particular en$oy, to which the recei$ing state responds with an informal conformity (agreement' Letre %e Crean!e(Letter of 1redence' " with the name, ran) and general character of his mission, and a re+uest for fa$ora#le reception and full credence 4in%s of Consuls 1. consules missi " professional or career consuls who are nationals of sending state and are re+uired to de$ote their full-time to discharge their duties; and 2. consules electi " may or not #e nationals of sending state and perform consular functions only in addition to their regular callings Ran<s: ! consul(general " heads se$eral consular districts, or one e&ceptionally large consular district; % consul " ta)es charge of a small district or town or port; ( vice(consul " assists the consul; and 4 consular agent " usually entrusted with the performance of certain functions #y the consul Privile(es an% I''unities A!!or%e% to Di)lo'ati! Envo*: (PCLIT1 ! 0n$iola#ility of )remises and archi$es; % *ight of official !ommunications; ( C&emption from local jurisdiction; 4 Personal in$iola#ility; 6 C&emption from su#poena; and ? C&emption from ta&ationAcustom duties E2territorialit* " e&ception of persons and property from local jurisdiction on #asis of international customs 0f the acts gi$ing rise to a suit are those of a foreign go$ernment done #y its foreign agent, although not necessarily a diplomatic personage, #ut acting in his official capacity, the complaint could #e #arred #y the immunit% o2 the 2oreign sovereign 2rom suit 0ithout its consent ($unicher $s 1., 2* No !4%(9?, @e#ruary !!, %EE(' 7. TREAT; - .n international agreement concluded #etween states in written form and go$erned #y international law whether em#odied in a single instrument or in two or more related instruments (9ienna 6onvention on the a0 o2 Treaties, !9?9' Re6uisites: (CRAD1 ! Cntered into #y parties ha$ing treaty-ma)ing !apacity; % 3hrough their authorized organs or representati$es; ( Without attendance of %uress, fraud, mista)e or other $ices of consent; 4 Lawful su#ject matter and o#ject; and 6 *atification in accordance with their respecti$e !onstitutional processes Effe!t of Unwritten Treat* 1. has legal force; 2. con$ention rules on matters go$erned #y international law independently of con$ention shall apply; and 3. con$ention rules apply to the relations of states as #etween themsel$es under international agreement with other su#jects as parties te)s in Treat*:'a<in( Pro!ess) 1. Negotiation; 2. Signature; 3. *atification; 4. C&change of instruments of ratification; and 5. *egistration with >N Do!trine of Une6ual Treaties " treaties which ha$e #een imposed in an une+ual character, are $oid Jus Cogens " customary international law that has attained the status of a peremptory norm, accepted and recognized #y the international community of states as a rule from which no derogation is permitted and can #e modified only #y a su#se+uent norm ha$ing the same character eg customs out-lawing sla$e trade, genocide, terrorism, etc Con!or%at " a treaty or agreement #etween ecclesiastical and ci$il powers to regulate the relations #etween the church and the state in those matters which, in some respect are under the jurisdiction of #oth &acta Sunt Servanda " FC$ery treaty in force is #inding upon the parties to it and must #e performed #y them in good faithG (Art. :;, 9ienna 6onvention on the a0 o2 Treaties).
*ebus Sic Stantibus " legal principle which would justify non-performance of treaty o#ligations where an unforeseen or su#stantial changes occur which would render one of the parties thereto una#le to underta)e treaty o#ligations as stipulated therein Most +avore% Nation Clause " pledge made #y a contracting party to a treaty to grant to other party treatment not less fa$ora#le than that which had #een gi$en or may #e granted to the most fa$ored among parties Inter)retation of Treaties ! @ounding @ather 3est; % Literal or te&tual; ( F3eleological aims and o#jectsG school Ter'ination of Treat*: /NEW DE7IL (made' 7ITAL1 ACCOMPLI8MENT 1. e&piration of term; 2. accomplishment of purpose; 3. impossi#ility of performance; 4. loss of su#ject matter; 5. no$ation; 6. %esistance of parties; 7. e&tinction of one of parties, if treaty is #ipartite; 8. occurrence of vital change of circumstance; 9. out#rea) of war; and 10. voidance of treaty Proto!ol %e !loture . an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the te&ts of treaties, con$entions, recommendations and other acts agreed upon and signed #y the plenipotentiaries attending the conference 0t is not the treaty itself and does not re+uire the concurrence of the Senate (Ta<ada v. Angara, %;% S1*. !:' TREAT; E9ECUTI7E A#REEMENT ! 7asic political issues ; changes of national policies ! adjustment of details carrying out esta#lished national policies permanent international agreements % temporary arrangements 7ali%it* of t"e Bali<atan E2er!ises - 3he =@. permits >nited States personnel to engage, on an impermanent #asis, in Hacti$ities,H the e&act meaning of which was left undefined 3he e&pression is am#iguous, permitting a wide scope of underta)ings su#ject only to the appro$al of the Philippine go$ernment .fter studied reflection, it appeared farfetched that the am#iguity surrounding the meaning of the word Hacti$itiesH arose from accident 0n our $iew, it was deli#erately made that way to gi$e #oth parties a certain leeway in negotiation 0n this manner, $isiting >S forces may sojourn in Philippine territory for purposes other than military .s concei$ed, the joint e&ercises may include training on new techni+ues of patrol and sur$eillance to protect the nationIs marine resources, sea search- and-rescue operations to assist $essels in distress, disaster relief operations, ci$ic action projects such as the #uilding of schoolhouses, medical and humanitarian missions, and the li)e (Lim $s Bonora#le C&ecuti$e Secretary, 2* No !6!446, .pril !!, %EE%' 7I . NATIONALIT; AND TATELENE Do!trine of Effe!tive Nationalit* . e&pressed in .rt6 of the Bague 1on$ention of !9(E on the 1onflict of Nationality Laws that states that within a third State a person ha$ing more than one nationality shall #e treated as if he had only one " either the nationality of the country in which he is ha#itually and principally resident or the nationality of the country with which in the circumstances he appears to #e in fact most closely connected (*rivaldo v. 6omelec, !;4 S1*. %46' tatelessness . condition or status of indi$idual who is #orn without any nationality or who loses his nationality without retaining or ac+uiring another Treat'ent of tateless In%ivi%ual - international con$entions pro$ide that stateless indi$iduals are to #e treated more or less li)e the su#jects of a foreign state Reinte(ration " reco$ery of nationality #y indi$iduals who are natural #orn citizens of a state, #ut who lost their nationality 7II . TREATMENT O+ ALIEN @lowing from its right to e&istence and as an attri#ute of so$ereignty, no State is under o#ligation to admit aliens 3he State can determine in what cases and under what conditions it may admit aliens De)ortation " e&pulsion of an alien considered undesira#le #y local state, usually #ut not necessarily to his own state Re!on%u!tion :: forci#le con$eying of aliens #ac) to their home state without any formalities A. Do!trine of tate Res)onsi$ilit* - state may #e held lia#le for injuries and damages sustained #y the alien while in the territory of the state pro$ided, ! the act or omission constitutes an international delin+uency; % the act or omission is directly or indirectly imputa#le to the State; and ( injury to the claimant State indirectly #ecause of damage to its national Dire!t tate Res)onsi$ilit* " where the international delin+uency was committed #y superior go$ernment officials or organs li)e the chief of state or the national legislature, lia#ility will attach immediately as their acts may not #e effecti$ely pre$ented or re$ersed under the constitution or laws of the state In%ire!t tate Res)onsi$ilit* " where the offense is committed #y inferior go$ernment official or #y pri$ate indi$iduals, the state will #e held lia#le only if, #y reason of its indifference in pre$enting or punishing it, it can #e considered to ha$e conni$ed in effect in its commission International tan%ar% of ,usti!e " the standard of the reasona#le state that is, as referring to the ordinary norms of official conduct o#ser$ed in ci$ilized jurisdiction; thus, to constitute an international delin+uency, the treatment of an alien should amount to an outrage, #ad faith, willful neglect of duty, and insufficiency of go$ernmental action that e$ery reasona#le and impartial man would readily recognize its insufficiency Calvo Clause " pro$ision fre+uently inserted in contracts where nationals of another state renounce any claim upon his national state for protection 7ut such wai$er can #e legally made only #y alien8s state B. Refu(ees Re6uisites: ! 3hose who are outside the country of his nationality or if stateless, outside the country of his ha#itual residence; % Lac)s national protection; and ( @ears persecution Non:refoule'ent " prohi#its a state to return or e&pel refugee to the territory where he escaped #ecause his life or freedom is threatened 3he state is under o#ligation to grant temporary asylum (Re2ugee 6onvention o2 '"#') Di)lo'ati! As*lu' " refuge in diplomatic premises Politi!al As*lu' : refuge in another state for political offense, danger to life, no assurance of due process C. E2tra%ition - surrender of a fugiti$e #y one state to another where he is wanted for prosecution or, if already con$icted, for punishment Surrender is made at re+uest of latter state on #asis of e&tradition treaty #eneral Prin!i)les: ! 7ased on consent e&pressed through treaties % SPC10.L3J- a fugiti$e who is e&tradited may #e tried only for the crime specified in the re+uest for e&tradition and included in the list of offenses in the treaty ( N/N-L0S3 3JPC /@ 3*C.3J- offenses punisha#le under the laws of #oth states #y imprisonment of one year or more are included among the e&tradita#le offenses 4 .ny person may #e e&tradited; he need not #e a citizen of the re+uesting State 6 Political or religious offenders are generally not su#ject to e&tradition Attentat Clause" assassination of head of state or any mem#er of his family is not regarded as political offense for purposes of e&tradition .lso for the crime of genocide ? offense must ha$e #een committed within the territory or against the interest of the demanding State ; dou+le criminalit% -- act for which the e&tradition is sought must #e punisha#le in #oth States Pro!e%ure for E2tra%ition (-udicial and diplomatic process of re+uest and surrender' .1 '=;" ! *e+uest through diplomatic representati$e with, a decision of con$iction; # criminal charge and warrant of arrest; c recital of facts; d te&t of applica#le law designating the offense; e pertinent papers; % 5@. forwards re+uest to 5/-; ( 5/- files petition for e&tradition with *31; 4 >pon receipt of a petition for e&tradition and its supporting documents, the judge must study them and ma)e, as soon as possi#le, a prima 2acie 2inding whether (a' they are sufficient in form and su#stance, (#' they show compliance with the C&tradition 3reaty and Law, and (c' the person sought is e&tradita#le .t his discretion, the judge may re+uire the su#mission of further documentation or may personally e&amine the affiants and witnesses of the petitioner 0f, in spite of this study and e&amination, no prima 2acie 2inding is possi#le, the petition may #e dismissed at the discretion of the judge /n the other hand, if the presence of a prima facie case is determined, then the magistrate must i''e%iatel* issue a warrant for t"e arrest of the e&traditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings Prior to the issuance of the warrant, the judge must not inform or notify the potential e&traditee of the pendency of the petition, lest the latter #e gi$en the opportunity to escape and frustrate the proceedings 3he foregoing procedure will F#est ser$e the ends of justiceG in e&tradition cases; (2o$ernment of the >S $s Bon .urganan and $ar> ?imenez 2* No 2* No !4:6;! Septem#er %4, %EE%' 6 hearing (pro$ide counsel de officio if necessary'; ? appeal to 1. within ten days whose decision shall #e final and e&ecutory; ; 5ecision forwarded to 5@. through the 5/-; : 0ndi$idual placed at the disposal of the authorities of re+uesting state " costs and e&penses to #e shouldered #y re+uesting state . state may not compel another state to e&tradite a criminal without going through the legal processes pro$ided in the laws of the former 5ue process re+uirement complied at the *31 le$el upon filing of petition for e&tradition No need to notify the person su#ject of the e&tradition process when the application is still with the 5@. or 5/- C&tradition is not a criminal proceeding which will call into operation all the rights of an accused pro$ided in the #ill of rights @or the pro$isional arrest of an accused to continue, the formal re+uest for e&tradition is not re+uired to #e filed in court " it only needs to #e recei$ed #y the re+uested state in accordance with P5 !E?9 Entitle'ent to Bail .s suggested #y the use of the word Fcon$iction,G the constitutional pro$ision on #ail, as well as Section 4 of *ule !!4 of the *ules of 1ourt, applies only when a person has #een arrested and detained for $iolation of Philippine criminal laws It does not appl% to e8tradition proceedings, #ecause e&tradition courts do not render judgments of con$iction or ac+uittal )8ception, after a potential e&traditee has #een arrested or placed under the custody of the law, #ail may #e applied for and granted only upon a clear and con$incing showing (!' that, once granted #ail, the applicant will not #e a flight ris) or a danger to the community; and (%' that there e&ist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited #y the highest court in the re+uesting state when it grants pro$isional li#erty in e&tradition cases therein (2o$ernment of the >S $s Bon .urganan and $ar> ?imenez 2* No 2* No !4:6;! Septem#er %4, %EE%' 7III . INTERNATIONAL DIPUTE actual disagreement #etween states regarding conduct to #e ta)en #y one of them for protection or $indication of interest of other .rt (( of the >N 1harter pro$ides that the parties to any dispute shall first see) a solution through pacific or amica#le methods A'i!a$le Met"o%s of ettlin( Dis)utes: (,C MAR#EN1 !. Negotiation %. En+uiry ( Tender of 2ood offices 4 Mediation 6 Conciliation ? Ar#itration ; ,udicial settlement; and : Resort to regional and international organizations 8ostile 'et"o%s: /IR 0 1 ! e$erance of dipomatic relations; % Inter$ention; ( Reprisal; 4 Retorsion Intervention " act #y which state interferes with domestic or foreign affairs of another state through the use of force or threat of force W"en Intervention is an!tione%: ! as an act of self-defense; % when decreed #y the Security 1ouncil as a pre$enti$e or enforcement action for the maintenance of international peace and security; ( when such action is agreed upon in a treaty; or 4 when re+uested from fellow states or from the >nited Nations #y the parties to a dispute or a state #eset #y re#ellion Dra(o Do!trine " inter$ention not allowed for purpose of ma)ing state pay its pu#lic de#ts Retorsion . retaliation where acts complained of do not constitute legal ground of offense #ut are rather in nature of unfriendly acts done in pursuance of legitimate state interest #ut indirectly hurtful to other states Re)risal " unlawful acts ta)en #y one state in retaliation for also unlawful acts of another state, purpose #eing to #ring offending state to terms 0ncludes, ! 5isplay of force; % Pacific #loc)ade; ( /ccupation of territory; and 4 Suspension of treaties; 6 Cm#argo " detention #y state see)ing redress of $essels of offending state or its nationals, whether such $essels are found in territory of former or in the highseas II. WAR armed contention #etween pu#lic forces of states or other #elligerent communities implying employment of force #etween parties for purpose of imposing their respecti$e demands upon each other Basi! Prin!i)les of War: ! Prin!i)le of "ilitary necessity " #elligerents may employ any amount and )ind of force to compel complete su#mission of enemy with least possi#le loss of li$es, time and money; % Prin!i)le of +umanity " prohi#its use of any measure that is not a#solutely necessary for purposes of war; and ( Prin!i)le of Chivalry " #asis of such rules as those that re+uire #elligerents to gi$e proper warning #efore launching a #om#ardment or prohi#it use of perfidy (treachery' in conduct of hostilities Parti!i)ants in War: 1. 1om#atants a. non-pri$ileged; b. pri$ileged 2. Spies; 3. <ercenaries Ri("ts of a Prisoner of War: 1. 3o #e treated humanely; 2. Not su#ject to torture; 3. .llowed to communicate with their families; 4. *ecei$e food, clothing, religious articles, medicine; 5. #are minimum of information; 6. )eep personal #elongings 7. proper #urial; 8. group according to nationality; 9. esta#lishment of an information #ureau; 10. repatriation for sic) and wounded ('"4" Geneva 6onvention) Ter'ination of War: ! simple cessation of hostilities; % conclusion of a negotiated treaty of peace; and ( defeat of one of #elligerents 9. NEUTRALIT; condition of state that does not ta)e part, directly or indirectly in war #etween other states An(ar* . #elligerent may upon payment of just compensation, seize, use or destroy, in case of urgent necessity for purposes of offense or defense neutral property found in its territory, in enemy territory or on high seas NEUTRALIT; NEUTRALI=ATION 1. dependent on attitude of neutral state, which is free to join either of #elligerents any time it sees fit ! result of treaty wherein duration and other conditions are agreed upon #y neutralized state and other states 2. go$erned #y laws of nations % go$erned #y neutralization agreement 3. o#tains only during war ( intended to operate in peace and in war 4. only states may #ecome neutral 4 applica#le to portion of state
Law School Survival Guide (Volume II of II) - Outlines and Case Summaries for Evidence, Constitutional Law, Criminal Law, Constitutional Criminal Procedure: Law School Survival Guides
The Law of the United Nations as Applied to Intervention Within the Frame Work of Article 2, Paragraph 7 of the Un Charter: A Comparative Analysis of Selected Cases to Establish the Underpinning Reality of the Danger of the Principles of Sovereign Equality and Domestic Jurisdiction Against Un Mandate for Total Humanity's Peaceful Co - Existence and Prosperity.