Vous êtes sur la page 1sur 13

PUBLIC INTERNATIONAL LAW

I. PUBLIC INTERNATIONAL LAW


- 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

Vous aimerez peut-être aussi