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PUBLI C INTERNATIONAL LAW

Nature of Public International Law


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

HI STORY
Ancient International Law governed exchange of diplomatic emissaries, peace
treaties, etc. in the world of ancient Romans and earlier. The progressive rule of JUS
GENTIUM seen as a law common to all man became the law of the vast Roman
Empire.

Modern International Law began with the birth of nation-states in the


Medieval Age. Governing principle was derived from Roman law or Canon Law
which drew from natural law . Hugo Grotius considered father of modern
International law . What he called LAW OF T HE NATIONS was later given the
name I NTERNATIONAL LAW by Jeremy Bentham

The positivist approach reinterpreted International Law not on a basis of


concepts derived from reason but rather on basis of what actually happened in
the conflict between states . With the emergence of nation of sovereignty came the
view of law as commands backed up by threats of sanction. In this view, International
law no law because not from command of sovereign.

Significant milestones in development of international law:


1.) Peace of Westphalia (ending 30 year war) established a treaty based
framework for peace cooperation. (it was at this time that PACTO SUNT
SERVANDA arose)
2.) Congress of Vietnam (ending Napoleonic wars) created a system of
multilateral political and economic cooperation.
3.) Covenant of the League of Nations (including the Treaty of Versailles
ending WW1) created the Permanent Court of International Justice.
4.) Founding of UN in aftermath of WW2 . Shift of power away from Europe
and beginning of truly universal institution. Universalization advanced by
decolonization which resulted in expansion of membership of UN. New states,
carrying a legacy of bitterness against colonial powers, became members.
5.) Col d war period succeeded in maintaining peace through balancing of 2
super powers.

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6.) Dissolution of Soviet Union resulting in end of Col d War with re-
emergence of International relations based on multiple sources of power and not
mainly ideology.

HUGO GROTIUS (De jure Belli Ac Pacis Libri Tes)

International practices, customs, rules and treaties proliferated to the point of


complexity. Several scholars sought to compile them all into organized treatises. The
most important of these was Hugo Grotius whose treatise De jure Belli Ac
Pacis Libri Tes is considered the starting point for modern international
law. Before Hugo Grotius, most European thinkers treated law as something
independent of mankind, with its own existence. Some laws were invented by men but
ultimately they reflected the essential natural law. Grotius was no different, except in
one important respect. Unlike the earlier, thinkers, who believed that the natural law
was imposed by a debt, Grotius believed that the natural law came from an
essential universal reason, common to all men.

This rationalist perspective enabled Grotius to posit several rational principles


underlying law. Law was not imposed from above, but rather derived from
principles. Foundation principle included the anxious the promises must be
kept, and that harming another requires a situation . These 2 principles have
served as the basis for much of subsequent international law. Apart from natural- law
principles, Grotius also dealt with international custom or voluntary law.
Grotius emphasized the importance of actual practices, customs and
treaties- what is done- as opposed to normative rules of what ought to
be done. This positivist approach to international law strengthens over time. As
nations became the predominant form of state in Europe , and their man-made laws
became more important than religious doctrines and philosophies, the law of what is
similarly became more important than the law of what ought to be.

Difference between Public International Law and Conflicts of Law


Public International Law Conflicts of Law
As to NATURE International Municipal or National

It is a law of a sovereign Except when embodied in a


over those subjected to treaty or convention,
his way becomes international in
character. It is a law, not
Transactions of states a above, but between,
private sovereign states and is

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therefore, a WEAKER
Part of Political Law LAW

Part of Civil Law


As to REMEDI ES/ International Modes of Local or Municipal Tribunals
SETTLEMENT Settlement through local
administrative and
Like Negotiations, and judicial processes
arbitration, reprisals
and even war
As to SOURCE Derived from such sources Consists mainly from the
as international customs, law making authority of
international each state
conventions and the
general principles of law
As to PARTIES International Entities Private Persons

Applies to relations states Regulates the relations of


INTER SE and other individuals whether of the
international persons same nationality or not
As to ENFORCEMENT International Sanctions Sheriff/ Police
Responsibility for Infractions are usually Generally, entails only
violation collective in the sense that it individual responsibility
attaches directly to the
state and not its
nationals
Regulates the political Regulates the comity of
intercourse of nations states in giving effect in
with each other or one to the municipal
concerns questions of laws of another relating
rights between nations to private persons or
concerns the rights of
persons within the
territory and dominion
of one state or nations by
reason of acts, private or
public, done within the
dominion of another, and
which is based on the broad
general principle that one
country will respect and give
effect to the laws of another
so far as can be done
consistently with its own
interests.

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1. The LAWS of PEACE
a. Governs the normal relations of states
b. Human Rights Law

2. The LAWS of WAR


a. When war breaks out between or some of them
b. International Humanitarian Law
c. Laws of Armed Conflicts

3. The LAWS of NEUTRALITY


a. Those not involved in the war , however, their relatives with the
belligerents, or those involved in the war, are governed by the
laws of neutrality

THE SOURCES OF I NTERNATIONAL LAW


In the absence of a centralized legislative, executive and judicial structure, there
is no single body able to legislate and there is no system of courts with compulsive
power to decide what the law is nor is there a centralized repository of international
law. Thus, theres a problem of finding out where the law is. Nevertheless, International
Law exists and there are sources where the law can be found.

2 CLASSIFICATIONS:
1. Formal Sources:
a. The various processes by which rules come into existence (e.g.
legislation, treaty making and judicial decision making and the practice of
states)

2. Material Sources:
a. The substance and content of the obligation. They identify what
the obligations are. Also referred to as evidence of
International Law (e.g. state practice, UN resolutions, treaties, judicial
decisions and writings of jurists)

The doctrine of sources lay down conditions for verifying and ascertaining
the existence of legal principles . The conditions are observable
manifestations of the wills of the states as revealed in the processes by which
norms are formed (treaty and state practice accepted as law.) The process of
verification is inductive and positivistic.

PRIMARY SOURCES

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1. International Treaties and Conventions
a. Are voluntarily entered into by states and encapsulates
express obligations entered into,
2. International Customs
a. These are the consistent practice of states adopted over
several years
b. Is usually invoked where there are no treaties that exist to
cover a particular issue or situation.
c. A custom need not be worldwide as it can be limited to a region
only
3. General Principles of International Law
a. These are the accepted principles of law under major legal
systems
i. e.g. all states created equal
SUBSIDIARY SOURCES
4. Decisions of Courts
a. Decisions of the International Court of Justice and other international
Tribunals are given weight. Decisions of municipal or domestic
courts are given lesser weight except if they pertain to
precedent-setting cases such as the POQUETE HABANA CASE
5. Teachings of Publicists
a. The court shall apply the teachings of the most highly qualified
publicists of the various nations. As subsidiary means for the
determination of rules of law
i. Publicist: learned Writers

BASES OF I NTERNATIONAL LAW


1. The Law of Nature School
a. Believes that International law is based on the rules of conduct
discoverable by every individual in his own conscience and
though the application of right reason
b. As he is bound to observe these rules without need of a formal or external
prescription, so too is the state, which is composed of individuals.
2. Positivist School
a. Holds that international law is based on the consent of states, and
on such consent only.
b. The consent is expressed in the case of conventional law,
implied in the case of customary law, and presumed in the case
of the general principles of law
3. The Eclectic or Grotian School
a. Represents a compromise between the first 2 schools of thought and
submits that international law is binding partly because it is
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good and right and partly because states have agreed to be
bound by it
b. This appears to be the most widely accepted

FUNCTIONS OF INTERNATIONAL LAW


The Principal Functions are:
1. To promote international peace and security
2. To foster friendly relations among nations and to discourage the use of
force in the solution of differences among them
3. To provide for the orderly regulation of the conduct of states in their
mutual dealings
4. To insure international cooperation in the pursuit of certain common
purposes of an economic, social, cultural or humanitarian character.

BASES OF APPLYI NG I NTERNATIONAL LAW IN LOCAL JURISDICTION


Doctrine of Incorporation
International laws are adopted as part of a state s municipal law , by a
general provision or clause usually in its Constitution .

Sec. 2, Article 2, 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

CASE: SECRETARY OF JUSTICE vs. LANTION


Facts: A possible conflict between the US-RP Extradition Treaty and Philippine Law
Issue: WON under the Doctrine of Incorporation, International Law prevails over
Municipal Law
HELD:
No, under the doctrine of Incorporation, rules of international law form part of the law
of the land and other legislative action is needed to make such rules applicable in the
domestic sphere
The doctrine of incorporation is applied whenever local courts are
confronted with situations in which there appears to be a conflict between
a rule of international law and the provisions of the local state s
constitution/statute.

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First, efforts should first be exerted to harmonize them, so as to give
effect to both. This is because it is presumed that municipal law was enacted with
proper regard for the generally accepted principles of international law in observance
of the incorporation clause.

However, if the conflict is irreconcilable and a choice has to be made between a


rule of international law and municipal law, jurisprudence dictates that the
municipal courts should uphold municipal law .
This is because such courts are organs of municipal law and are accordingly bound by it
in all circumstances. The fact that international law was made part of the law of the land
does not pertain to or imply the primacy of international law over national/municipal
law in the municipal sphere.
The doctrine of incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with but are not superior to, national
legislative enactments.

In case of conflict, the courts should harmonize both laws first and if
there exists an unavoidable contradiction between them, the principle of
LEX POSTERI OR DEROGAT PRI ORI-a treaty may repeal a statute and a
statute may repeal a treaty- will apply . But if these laws are found in conflict
with the Constitution, these laws must be stricken out as invalid.

In states where the constitution is the highest law of the law of the land, such as
in ours, both statutes and treaties may be invalidated if they are in conflict
with the constitution.

Supreme Court has the power to invalidate a treaty.


Section 5, Par 2(a), Article 8, 1987 Constitution:
Sec. 5. The Supreme Court shall have the following powers:
(2) Review, revise, modify, or affirm or appeal or certiorari, as the law
or the Rules of Court may provide, final judgements and orders of lower courts
in:
(a) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulations in question.

Doctrine Of Transformation
Requires the enactment by the legislative body of such international law
principles as are sought to be part of municipal law.

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Soft Law vs. Hard. Law
Soft law means commitments made by negotiating parties that are not
legally binding.
Hard law means binding laws. To constitute law, a rule, instrument or
decision must be authoritative and prescriptive. In international law, hard
law includes self-executing treaties or international agreements, as
well as customary laws . These instruments result in legally enforceable
commitments for countries (states) and other international subjects

THEORIES DEFI NI NG RELATIONSHI P OF INTERNATIONAL LAW WITH


DOMESTIC LAW
Theory of Monism
International law and domestic law are one legal system, but international law
is superior to the Domestic Law
It proposes that international law cannot be limited by a State s
Constitution. If a conflict exists between a Domestic Law and International
Law, it is international Law which should prevail.

Theory of Dualism
International Law and Domestic Law are distinct and separate . The
application of international law is limited by the Domestic Law or the
States Constitution. It would appear that the Philippines is a dualist state.

SUBJECTS OF I NTERNATIONAL LAW

The Subjects and Objects of International Law


A subject of international law is an entity with capacity of possessing
international rights and duties and of bringing international claims. This
entity is said to be an international person or one having an international personality,
on the basis of customary or general international law. (Magallona, 18-19).

A subject of Public International Law is an entity directly possessed of rights


and obligations in the international legal order, e.g. a sovereign state,
such as the Philippines . (Paras, 43).

An object of Public International Law, on the other hand, is merely indirectly


vested with rights and obligations in the international sphere , e.g. a Filipino
private citizen is generally regarded not as a subject but an object of Public
International Law because, while he is entitled to certain rights which other states ought
to respect, he usually has no recourse except to course his grievances
through the Republic of the Philippines and its diplomatic officers . (id.).

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

Elements: (PT-GS)
a. Peopl e
b. Territory
c. Government
d. Independence or Sovereignty

Doctrine of Acts of State


Every sovereign state is bound to respect the independence of every
other sovereign state, and the courts of one country, will not sit in
judgement on the acts of the government of another done with in its own
territory.

2. Colonies and Dependencies


From the viewpoint of international law, they are considered as part and parcel
of the parent state through which all its external relations are transacted
with other states.
a. Col ony
A dependent political community consisting of a number of citizens of the
same country who have migrated therefrom to inhabit in another country, but
remain subject to the mother state

b. Dependency
A territory distinct from the country which the supreme sovereign
power resides but belongs rightfully to it and subject to the laws and
regulations which the sovereign may prescribe

3. Mandates and Trust Territories


There are non-self governing territories which have been placed under
international supervision to insure their political, economic, social and educational
advancement.

4. The Vatican
In 1928, Italy and Vatican concluded the Lateran Treaty for the purpose of
assuring to the Holy See absolute and visible independence and of
guaranteeing to it absolute and indisputable sovereignty in the field of
international relations

CASE: The Holy See vs. Rosario, Jr. Dec. 3, 1994

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The Lateran Treaty established the statehood of the Vatican City "for the
purpose of assuring to the Holy See absolute and visible independence and of
guaranteeing to it indisputable sovereignty also in the field of international relations"

In view of the wordings of the Lateran Treaty, it is difficult to determine whether


the statehood is vested in the Holy See or in the Vatican City. Some writers even
suggested that the treaty created two international persons the Holy See and Vatican
City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the
attribution to it of "sovereignty" must be made in a sense different from that in which it
is applied to other states.

The Vatican City represents an entity organized not for political but
for ecclesiastical purposes and international objects.

Despite its size and object, the Vatican City has an independent
government of its own, with the Pope, who is also head of the Roman
Catholic Church, as the Holy See or Head of State , in conformity with its
traditions, and the demands of its mission in the world. Indeed, the world-wide interests
and activities of the Vatican City are such as to make it in a sense an "international
state"

One authority wrote that the recognition of the Vatican City as a state has
significant implication that it is possible for any entity pursuing objects essentially
different from those pursued by states to be invested with international personality.

Inasmuch as the Pope prefers to conduct foreign relations and enter


into transactions as the Holy See and not in the name of the Vatican City ,
one can conclude that in the Pope's own view, it is the Holy See that is the
international person .

The Republic of the Philippines has accorded the Holy See the
status of a foreign sovereign . The Holy See, through its Ambassador, the Papal
Nuncio, has had diplomatic representations with the Philippine government since
1957 (Rollo, p. 87). This appears to be the universal practice in international relations.

Principles:

Article 31(a) of 1961 Vienna Convention on Diplomatic Relations


In Article 31 (a) of the 1961 Vienna convention on Diplomatic Relations, a

diplomatic envoy is granted immunity from the civil and administrative

jurisdiction of the receiving state over any real action relating to private

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immovable property situated in the territory of the receiving state

which the envoy holds in behalf of the sending state for the purposes of the

mission.
Articles 20-22 of 1961 Vienna Convention on Diplomatic Relations
Lateran Treaty
(1929) Pact of mutual recognition between Italy and the Vatican, signed in the

Lateran Palace, Rome. The Vatican agreed to recognize the state of

Italy, with Rome as its capital , in exchange for formal establishment

of Roman Catholicism as the state religion of Italy , institution of

religious instruction in the public schools, the banning of divorce, and

recognition of papal sovereignty over Vatican City and the complete

independence of the pope. A second concordat in 1985 ended

Catholicism's status as the state religion and discontinued

compulsory religious education.

5. The United Nations (192 Nations)


International organization created at San Fransisco Conf erence held in the
US from April 25 to June 26, 1945. UN succeeded the League of Nations and is
governed by a charter that came into force on October 24, 1945
Official Languages of UN: (FRESCA)
French
Russian
English
Spanish
Chinese
Arabic

Principal Purposes of UN:


1. Maintain international Peace and Security
2. Develop friendly relations among nations
3. Achieve international cooperation
4. Centre for harmonizing actions of nations for attainment of these
common goals

Structure of the UN:


a. General Assembly
Central organ which all members are represented
2/3 vote required
th
Carlos P. Romulo served as the President of the 4 session of
General Assembly

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Functions: (S-BCDE)
i. Supervisory
ii. Budgetary
iii. Constituent
iv. Deliberative
v. Elective

b. Security Council
Organ responsible for the maintenance of peace and security ;
undertakes preventive and enforcement actions

Membership:
1. Permanent Members (FRUCU)
China
UK
France
Russia
USA
2. Non-Permanent Members
5- from African and Asian States
2- from Latin American States
2- from Western European and Other States
1-from Eastern European States

c. Economic and Social Council


Exerts effort towards higher standards of living solutions of
international economic, social health and related problems, universal respect for
and observance of human rights and fundamental freedoms

d. Trusteeship Council
Organ charged with the administration of the International Trusteeship
System (idle Council)

e. The Secretariat
Chief administrative organ of the UN
Current Secretary General(as of 2012)- Ban Ki-Moon of South
th
Korea(8 )
Secretaries-General serve for five-year terms that can be renewed
indefinitely

f. International Court of Justice


Judicial organ of UN ; world court governed by the statute which is
annexed to and made part of the UN charter

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Court is composed of 15 judges, who are elected for terms of office
of nine years by the United Nations General Assembly and the
Security Council.
Election every 3 years
Peace palace in Hague, Netherlands
Must possess the qualifications required in their respective
countries for appointment to the highest judicial offices
Cezar Bengzon of SC elected to the I CJ

6. Belligerent Community
They are group of rebel s under an organized civil government who
have taken up arms against legitimate government. When
recognized, considered as a separate state for purposes of conflict and
entitle to all the rights and subjected to all the obligations of a full
pledged belligerent under the laws of war.

7. International Administrative Bodies


Certain administrative bodies created by agreement among states
may be vested with international personality when 2 conditions concur:
a. Their purpose are mainly non-political
b. They are autonomous and not subject to the control of any state
i. Examples:
1. International Labour Organization
2. Food and Agricultural Organization
3. World Health Organization

CASE: SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER-


AQUACULTURE DEPARTMENT(SEAFDEC-AQD) , vs. NATIONAL LABOR
RELATIONS COMMISSION

Southeast Asian Fisheries Development Center-Aqua Culture Department is a


department of SEAFD, an international institution formed by an international agreement
of Southeast Asian countries. Private petitioner sent a letter to private respondent,
informing him of his termination due to financial restraints of the department. Latter
was informed that he was going to receive separation pay. Upon failure of petitioner to
give separation pay, private respondent Lazaga filed a complaint with the Labor Arbiter,
which decided in favor of private respondent amidst contention of petitioner that Labor
Arbiter doesnt have jurisdiction over them. NLRC affirmed the decision of Labor
Arbiter.

Issue: WON SEAFEC- ACD is immune from suit owing to its international character

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Held: YES, being an intergovernmental organization, SEAFDEC including its
Departments (AQD), enjoys functional independence and freedom from
control of the state in whose territory its office is located.
One of the basic immunities of an international organization is immunity
from local jurisdiction, i .e, that it is immune from the legal writs and processes
issued by the tribunals of the country where it is found. The obvious reason for this is
that the subjection of such an organization to the authority of the local courts would
afford a convenient medium thru which the host government may interfere in
their operations or even influence or control its policies and decisions of
the organization ; besides, such subjection to local jurisdiction would impair the
capacity of such body to discharge its responsibilities impartially on behalf of its
member-states

8. Individuals
Only as an object of international law who can act only through the
instrumentality of his own state in matters involving other states

THE CONCEPT OF STATE

ELEMENTS OF THE STATE:


1. Peopl e
It refers to the human beings living within its territory . They should be of
both sexes and sufficient in number to maintain and perpetuate themselves
Individuals of different races, languages and religion very often actually from
one people that is to say, the people of one state
Citizens, Nationals, Subjects

2. Territory
It is the fixed portion of the surface in the earth in which the peopl e
of the state reside
A defined territory is necessary for jurisdictional reasons and in order to
provide for the needs of the inhabitants
o As a practical Requirement:
It should be big enough to be self- sufficient and
small enough to be easily administered and
defended

The Terrestrial or Land Domain


It refers to the land mass on which the inhabitants live.

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Modes of Acquiring Land Territory

1. Discovery and Occupation


Original mode by which territory not belonging to any state or TERRA
NULLI US is placed under the sovereignty of the discovering state
Need not be uninhabited provided that it can be established that the natives
are not sufficiently civilized and can be considered possessing not rights of
sovereignty but only rights of habitation
o Requisites for a valid discovery and occupation
Possession
Administration

Inchoate Title of Discovery


It is acquired by the claimant state pending compliance with
the second requirement which is administration

2. Prescription
Continuous and uninterrupted possession over a long period of
time, just like in civil law.
In international law, however, there is no rule of thumb as to the length
of time needed for acquisition of territory through prescription
Grotius Doctrine if Immemorial Prescription:
Uninterrupted possession going beyond memory

3. Cession( by treaty)
Territory is transferred from 1 state to another by agreement
between them (sale, donation, barter/ exchange and testamentary
disposition)

4. Subjugation
Having been previously conquered or occupied in the courses of
war of the enemy, is formally annexed to it at the end of the war,
conquer alone inchoate right since it is the formal act of annexation that
complements acquisition.

5. Accretion
Based on Accessio Cedot Principoli accomplished through both
natural or artificial processes as by the gradual and imperceptible
deposit of soil on the coasts of the country through the action of the
water or by reclamation projects.

Loss of Territory (SPRECC-D)


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a) Dereliction
o Physical withdrawal
o Abandonment
b) Cession- agreement between states
c) Conquest
d) Erosion or other natural causes
e) Prescription
f) Subjugation
g) Revolution

Doctrine of Effective Occupation


Under this doctrine, discovery of terra nullius is not enough to acquire
title to the discovered territory

The Internal Waters


Also called as National or Inland, are 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.

The Maritime or Fluvial Domain


This 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 the landlocked lakes, rivers, manmade canals, the
waters in certain gulfs, bays and straits, and the territorial sea.

Archipelago Doctrine
The waters around, between and connecting the islands of the
archipelago, regardless of their breadth and dimensions , form part of the
nd
internal waters of the Philippines (2 sentence, Article 1, 1987 Constitution)
To determine the territorial owners
Archipelago= Pelgus which refer to the islands, a sea studded with
many island
o Kinds:
Coastal- situated close to a mainland and may be
considered a part thereof
Example: Lofien islands, Norway
Mid-ocean- situated in the ocean or such distance
arising from the coasts of frim land
Example: Philippines

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United Nations Convention on the Laws of the Sea (UNCLOS)
Uniform breadth of 10 miles for the territorial sea , a contiguous
zone of 18 miles from the outer limits of the territorial sea , and
economic zone or patrimonial sea extending 200 miles from the
low- water mark of the coastal
3 international Conferences have been called to formulate a new law of the
seas.
The conference have dealt with such controversial matters a the breadth of
the territorial seas, use of straits for international navigation, continental
shelf, concept of an exclusive economic zone, freedom of the high seas,
status of archipelagos and regime of islands.
st
o 1 conference: held in 1956-58 at Geneva Switzerland
nd
o 2 Conference: held in 1960 at Geneva Switzerland
rd
o 3 conference: held in 1970 by the UN which resulted in the
adoption of a new convention of the Law of the Sea and
became effective on: November 16, 1994, signed in Jamaica,
119 out of 150 conference-states

Straight Baseline Method


Drawn connections selected points on the coast without appreciable
departure from the general shape of the coast

Thalweg Doctrine
For boundary rivers, in the absence of an agreement between the riparian
states, the boundary line is laid on the middle of the main navigable
channel.

Middle of the Bridge Doctrine


Where there is a bridge over a boundary river, the boundary line is
the middle or center of the bridge.

Bays and Gulfs


o A bay is a well-marked indention in the coast the area of which
at least is as large or larger than, that of the semi- circl e
whose diameter is a line drawn across its mouth . Also referred to
as the juridical bay
Strait

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o Narrow passageways connecting two bodies of water . If the
distance between the 2 opposite coast is not more than six miles, they
are considered internal.
Canals

Territorial Sea
The belt of the sea located between the coast and internal waters of the
coastal state on the one hand and the high seas on the other, extending
up to 12 nautical miles from the low water mark or in case of archipelagic state,
from the baseline.

Philippine Territorial Sea


Based on historic rights or title or as it is often called the
treaty limits theory
o 3 mile limit rule

Doctrine of Right of Innocent Passage


Means navigation through the terrirorial seas of a state for the
purpose of traversing that seas without entering internal waters or of
proceeding to internal waters , or making for the high seas from internal waters, as
long as it is not prejudicial to the peace, public good order or security of
the coastal state.
Applicable only on passage on territorial sea and not to internal
waters. Point of passage is important
Involuntary entrance may be due to the following:
1. Lack of provisions
2. Unseaworthiness of the vessel
3. Increment weather
4. Other cases of force majeure like pursuit of pirates

Territorial sea vs. Internal waters of the Philippines


Territorial sea high seas up to 12 nautical miles
Internal waters- all waters internal such as canals

CASE: Portugal vs. India


It was common ground between the Parties that during the British and post-
British periods the passage of private persons and civil officials had not been subject to
any restrictions beyond routine control. Merchandise other than arms and ammunition
had also passed freely subject only, at certain times, to customs regulations and such
regulation and control as were necessitated by considerations of security or revenue.

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The Court therefore concluded that, with regard to private persons, civil
officials and goods in general there had existed a constant and uniform
practice allowing free passage between Daman and the enclaves, it was, in
view of all the circumstances of the case, satisfied that that practice had
been accepted as law by the Parties and had given rise to a right and a
correlative obligation.
As regards armed forces, armed police and arms and ammunition,
the position was different.
As regards arms and ammunition, the Treaty of 1878 and rules framed under the Indian
Arms Act of 1878 prohibited the importation of arms, ammunition or military stores
from Portuguese India and its export to Portuguese India without a special licence.
Subsequent practice showed that this provision applied to transit between
Daman and the enclaves.

The finding of the Court that the practice established between the Parties had
required for the passage of armed forces, armed police and arms and ammunition the
permission of the British or Indian authorities rendered it unnecessary for the Court to
determine whether or not, in the absence of the practice that actually prevailed, general
international custom or general principles of law recognized by civilized nations, which
had also been invoked by Portugal, could have been relied upon by Portugal in support
of its claim to a right of passage in respect of these categories. The Court was dealing
with a concrete case having special features: historically the case went back to a period
when, and related to a region in which, the relations between neighbouring States were
not regulated by precisely formulated rules but were governed largely by practice:
finding a practice clearly established between two States, which was accepted by the
Parties as governing the relations between them, the Court must attribute decisive
effect to that practice. The Court was, therefore, of the view that no right of passage in
favour of Portugal involving a correlative obligation on India had been established in
respect of armed forces, armed police and arms and ammunition.

The Court found that the events which had occurred in Dadra on 21-22 July
1954 and which had resulted in the overthrow of Portuguese authority in that enclave
had created tension in the surrounding Indian district, having regard to that tension, the
Court was of the view that India's refusal of passage was covered by its power of
regulation and control of the right of passage of Portugal.

Contiguous Zone
This refers to the waters beyond the territorial seas but not in excess
of 12 miles from the outer limits of the territorial sea over which the coastal
state exercises a protective jurisdiction to prevent the punish infringements of its
customs, fiscal immigration or sanitary regulations (1982 Convention on the Sea)

Exclusive Economic Zone

19
It is that expanse of the sea extending 200 nautical miles 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.

Contiguous Exclusive Economic Zone


12 nautical miles from territorial sea 200 nautical mil es from the baseline
Not a territory but state may exercise Exclusive for economic
limited jurisdiction over it to prevent
infringement of customs, fiscal
immigration or sanitary regulations

Continental Shelf
It is the seabed 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 (Art. 76, par.1, UNCLOS)

High Seas
It is treated as RES COMMUNES or RE NULLIUS , and thus, are not
territory of a particular state . These are the waters which do not constitute the
internal waters, archipelagic waters, territorial sea and exclusive economic
zone of a state. They are beyond the jurisdiction and sovereign rights of States.
Res Nullius
Res Communes
Freedom of Navigation

Flag State Flag Navigation


Refers to the authority under which a A vessel which is registered in a
country exercises regulatory control foreign country for convenience
over commercial vessels which is The flag is different from the
registered under its flag nationality of the owner

THE PHILIPPI NE TERRITORY


Philippine Baseline Laws
1. Normal Baseline Method
a. Drawn from the low water mark of the coast, to the breadth claimed,
following its sinuousness and curvatures but excluding the
internal waters in the bays and gulfs

2. Straight Baseline Method

20
a. Joining appropriate points may be employed in drawing the
baseline from which the breadth of the territorial seas is
measured. (Art. 7 UNCLOS)
Baseline Law
1961 RA. 7046
5446- overlapping zone on Malaysia
9522- They ceded to own some islands which are not suitable for economic
zone
Tomas Cloma
o A Filipino adventurer and fishing magnate who discovered Kalayaan
Island
o 1956 Cloma declared separate government from the Philippines
o Cloma sold it to the Philippines during the Marcos Regime for P1
only
Treaty of Paris
o For $20M, Spain sold the Philippines to US on December 10,
1898
Treaty of Washington
o For $100K for the acquisition of the islands not included in
the Treaty of Paris Nov. 7, 1900
US- Britain
o January 2, 1930 for the Acquisition of the islands in the South
(Sulu, tawi-tawi)
Marcos Issued PD 1956 creating kalayaan as a province of Palawan
Treaty of Annexation
o Making the Hawaii part of the US

3. Government
Defined as the agency through which the will of the state is
formulated, realized and expressed.
In International law, it is the instrumentality that represents the state in
its dealings with other international persons. The state can assert rights, and is
held responsible, through its government.
De Jure- A government in accordance of the law
De Facto- A government not in accordance with the law

FORMS OF GOVERNMENT
A form of Government, or form of state of governance, refers to the set of
political institutions by which a government of a state is organized in
order to exert its powers over a house in the congress body politic .
Synonyms include regime type and system of government.

1. Democracy (Ruled by Majority )

21
It is best described by Abraham Lincoln as a form of government that is of
the people, by the people and for the people. It is a form of government, which
allows people to choose the representatives amongst themsel ves who are
given the rights to form the government . A democracy usually has a standard
Constitution that confers certain rights of freedom and expression (and many other
rights) to its citizens and expects certain duties from them and a uniform law to govern
the entire nation.
Direct or Pure Democracy
One in which the will of the State is formulated or expressed directly
and immediately through the people in a mass meeting or primary
assembly.

Indirect, Representative or Republican Democracy


One in which the will of the state is formulated and expressed through
the agency of a relatively small and select body of persons chosen by the
people to act as their representatives.

2. Aristocracy
One in which political power is exercised by a few privileged class

3. Monarchy
Monarchies are one of the oldest political system known, developing from tribal
structure with one person the absolute ruler

Monarchy implies rule or the power of government in the hands of a individual


who has inherited the role and expects to bequeath it to the descendants. Currently
there exist 31 monarchs reigning over 45 extant sovereign monarchies in the world, 16
of which are Commonwealth Realms that formally recognize Queen Elizabeth II as their
head of state and Prince Charles as heir.
Kinds of Monarchy:
Absolute monarchy- one in which the ruler by divine right
Limited monarchy- one in which the ruler rules in accordance
with the constitution

4. Presidential
One in which the state makes the executive constitutionally
independent of the legislature as regards his policies and acts

5. Parliamentary
One in which the state conf ers upon the legislature the power to
terminate the tenure of office of the real executive

6. Unitary
One in which the control of national and local is exercised by the
central or national government

22
7. Federal
One in which the powers of government are divided between 2 sets of
organs, one for national affairs and the other for local affairs .

The politics of the Philippines takes place in an organized framework of


presidential, representative and democratic republic whereby the
president is both the head of state and the head of government
within a pluriform multiparty system . This system revolves around 3
branches: the legislative branch (law-making body), the executive branch (law-
enforcing body) and the judicial branch (the law- interpreting body).

Executive power is exercised by the government under the leadership of the


president
Legislative power is vested both the government and the 2 chamber congress-
The Senate (the upper chamber) and the House of Representative (the lower
chamber
Judicial power is vested in the courts with the Supreme Court of the Philippines
as the highest judicial body

Despotism
It is the form of rule wherein a single leader rulers the entire
population and all his or her subjects are considered to be his or her
slaves. The Pharaoh of Egypt is an example of this sort of rule. In case of contemporary
contention, the term implies tyrannical rule.

Dictatorship
Implies rule by an individual who has compl ete power over the country .
Although there have been several definitions of dictatorship, broadly all the various
types and forms of dictatorship tend to exhibit totalitarian characteristics. When
the power of the government does not come from the people, is unlimited and tends to
expand their scope of powers to control every aspect of peoples life, the form can be
termed a dictatorship.

Oligarchy (Rule by Few)


It is the form of government where a small group has the power to govern
or rule. Aristotle had coined the term oligarchy as synonym for rule by the
rich (which is known as plutocracy) oligarchy now simply refers to rule of the
privileged few.

Plutocracy
Refers to form of government, which is run by the rich. A plutocracy is
a form of government, which is controlled by a group of extremely wealthy individuals.
In todays world many political analyst argue there are still some situations in which

23
private corporations and wealthy individuals have a strong hold over the government,
which can be synonymous with plutocracy

Communist Government
It is a form of Government in which the state is governed by a one-party
system. This form of government works on the lines of Marxism- Leninism . Thus,
the state and the communist party claim to act in accordance to the wishes of
the working class or the peasantry . Although a communist government claims to
implement democratic dictatorship of the proletariat, it tends to incline towards the
abolition of the state and implementation of communism.

RECOGNITION

Definition
It is an act by which a state acknowledges the existence of another
state, government or belligerent community and indicates willingness to
deal with the entity as such under the rules of international law.

DOCTRI NES ON RECOGNITION OF GOVERNMENT


1. Wil son/ Tobar Doctrine
Precludes recognition of government established by revolution, civil
war, coup dtat or other forms of internal violence until they freely
elected representative of the people have organized a constitutional
government
2. Estrada Doctrine
Dealing or not dealing with the government established through
political upheaval is not a judgement on the legitimacy of the said
government (Mexican Minister Genaro Estrada)
3. Stimson Doctrine
Precludes recognition of any government established as a result of external
aggression (US Sec of State Henry Lewis Stimson)

EFFECTS OF RECOGNITION OF A STATE OR GOVERNMENT


1. Diplomatic relations
2. Right to sue in courts of recognizing state
3. Right to possession of properties of predecessor on the recognizing
state
4. All acts of the recognized state or government are validated
retroactively ; preventing the recognizing state from passing upon their legality
in its own courts. (Act of State Doctrine)

PRACTICAL CRITERIA FOR RECOGNITION OF A GOVERNMENT


1. it has control of the administrative machinery of the state with
popular acquiescence ; and
2. It is willing and able to comply with its international obligations

24
KINDS OF RECOGNITION OF GOVERNMENT
De Jure Recognition De Facto Recognition
Relatively permanent Provisional(duration of armed
struggle)
Vests title to properties of Does NOT vest title to properties of
government abroad government abroad
Brings about full diplomatic relations Limited to certain juridical relations

4. Sovereignty
Supreme and uncontrollable power inherent in a State by which that
State is governed.
The government possesses full control over its own affairs within a
territorial geographic area or limit

CASE: North cotabato vs. GRP gr no. 183591

FACTS: The Memorandum of Agreement on the Ancestral Domain (MOA-AD) brought


about by the Government of the republic of the Philippines (GRP) and the Moro Islamic
Liberation Front (MILF) as an aspect of Tripoli Agreement of Peace in 2001 is scheduled
to be signed in Kuala Lumpur, Malaysia.
This agreement was petitioned by the Province of North Cotabato for Mandamus and
Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order. The agreement mentions "Bangsamoro Juridical Entity" (BJE) to
which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro; authority and jurisdiction over all natural resources within
internal waters. The agreement is composed of two local statutes: the organic act for
autonomous region in Muslim Mindanao and the Indigenous Peoples Rights Act (IPRA).

ISSUE: Whether or not the GRP violated the Constitutional and statutory provisions on
public consultation and the right to information when they negotiated and initiated the
MOA-AD and Whether or not the MOA-AD brought by the GRP and MILF is
constitutional

HELD:GRP violated the Constitutional and statutory provisions on public


consultation and the right to information when they negotiated and
initiated the MOA-AD and it are unconstitutional because it is contrary to
law and the provisions of the constitution thereof.

REASONI NG: The GRP is required by this law to carry out public
consultations on both national and local level s to build consensus for
peace agenda and process and the mobilization and facilitation of
peopl es participation in the peace process.

25
Sec. 7. The right of people on matters of public concern shall be recognized, access to
official records and to documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development
shall be afforded the citizen, subject to such limitations as may be provided by law.

Article II
Sec. 28. Subject to reasonable conditions prescribed by law , that state adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.

LGC (1991), require all national agencies and officers to conduct periodic
consultations. No project or program be implemented unless such consultations are
complied with and approval mus be obtained.

ARTICLE XVII (AMENDMENTS OR REVISIONS)

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or
2. A constitutional convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof
shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be
held not earlier than sixty days nor later than ninety days after the approval of such
amendment or revision.

MOA-AD states that all provisions thereof which cannot be reconciled with the present
constitution and laws shall come into force upon signing of a comprehensive compact
and upon effecting the necessary changes to the legal framework. The presidents
authority is limited to proposing constitutional amendments. She cannot guarantee to
any third party that the required amendments will eventually be put in place nor even
be submitted to a plebiscite. MOA-AD itself presents the need to amend therein.

KINDS OF SOVEREIGNTY:
1. Internal Supreme Authority of a state within its territory (Police
Power)
2. External- Does not have any force in foreign territory

Q: Is Sovereign absolute?
A: In domestic sphere- YES!
In International sphere- NO!

CASE: Tanada vs Angara, 272 SCRA 18, May 2, 1997

26
While sovereignty has traditionally been deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions and limitations voluntarily agreed to
by the Philippines, expressly or impliedly, as a member of the family of nations
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."
By their voluntary act, nations may surrender some aspects of their state power in
exchange for greater benefits granted by or derived from a convention or pact. After all,
states, like individuals, live with coequals, and in pursuit of mutually covenanted
objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights.
The sovereignty of a state therefore cannot in fact and in reality be
considered absolute. Certain restrictions enter into the picture: (1)
limitations imposed by the very nature of membership in the family of
nations and (2) limitations imposed by treaty stipulations. As aptly put by
John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient
nationalism is over.
Thus, when the Philippines joined the United Nations as one of its 51
charter members, it consented to restrict its sovereign rights under the
"concept of sovereignty as auto-limitation."
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 point is that, as shown by the foregoing treaties, a portion of sovereignty may
be waived without violating the Constitution, based on the rationale that
the Philippines "adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of . . .
cooperation and amity with all nations."

EFFECT OF CHANGE OF SOVEREIGNTY


The effect is that the political laws of the former sovereign are not
merely suspended but abandoned . As they regulate the relations between the
ruler and the rules, these laws fall to the ground ipso facto unless they are retained or
re-enacted by positive act of the sovereign.

27
Non- political law, by contrast, continues in operation, for the reason
also that they regulate private relations only, unless they are changed by the new
sovereign or are contrary to its institutions.

RECOGNITION OF STATES
Theories on Recognition of States
1. Declaratory School
a. Merely affirms an existing fact like the possession by the state of the
essential elements
b. Discretionary and political
2. Constitutive School
a. It is the act of recognition that constitutes the entity into an
international person
b. Compulsory and legal
c. May be compelled once the elements of a state are
established

BELLIGERANCY
The status of parties legally at war ( e.i. between nations or if in civil war,
government treats other as sovereign power)

Effects of belligerency : relations of warring parties determined by laws of


war, granting of belligerency rights. Neutral nations abstain from taking
sides.

CONDITIONS RECOGNITION OF BELLIGERENCY


1. There must be an organized civil government directing the rebel forces ;
2. The rebels must occupy a substantial portion of the territory of the
state;
3. The c o n f l i c t b e t w e e n t h e l e g i t i m a t e g o v e r n m e n t a n d t h e
r e b e l s m u s t b e serious, making the outcome uncertain ; and
4. The rebel s must be willing and able to observe the laws of war .

EFFECTS OF RECOGNITION OF BELLI GERENCY


1. Responsibility for the acts of rebels resulting to inquiry to national s of
recognizing state shall be shifted to rebel government
2. The legitimate government recognizing the rebels as belligerents
shall observe laws or customs of war in conducting hostilities
3. Third states recognizing belligerency should maintain neutrality

Recognition is only provisional and only for purposes of hostilities

The Principle of State Continuity

28
It means that the legal existence of a state continues notwithstanding
changes in the size of its population or territory or in the form or leadership of its
government as long as the four essential elements of statehood are
retained.

Creation of New State (RP-USA-A)


I. By Revolution (Philippines)
II. By peaceful acquisition of independence(Malaysia)
III. By unification of Several (Italy)
IV. By Secession (Bangladesh )
V. By Agreement (Netherlands)
VI. By attainment of Civilization (Japan)

Extinction of the State (DAD-MAPE)


I. Overthrow of government resulting to anarchy (Yugoslavia)
II. Emigration on masses of its population (Timbuktu)
III. Annexation (Vietnam)
IV. Merger or Unification (Germany)
V. Dismemberment (Yugoslavia)
VI. Dissolution
VII. Partial Loss of Independence (Hawaii)

FUNDAMENTAL RI GHTS OF STATES


1. Right to Existence and Self-Defense
a. Most comprehensive as all the rights of state flow from it
b. State may take measures including the use of force as may be necessary
to counteract any danger to its existence
Aggression
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 Charter of the United Nations as set out in this definition

ACTS OF AGRESSION
I. Invasion or attack of a state
II. Bombardment of state
III. Blockade of ports or coasts
IV. Use of armed forces within a state in contravention to any agreement
V. Action of state in allowing its territory for an act of aggression against a third
state
VI. Sending of armed groups or mercenaries which carry an act of armed force
against another state

REQUISITE FOR PROPER EXERCISE OF RI GHT OF SELF-DEFENSE


a. Armed attack

29
b. Self-defensive action taken by the attacked state must be reported
immediately to the Security Council
c. Such action shall not in any way affect the right of the Security Council
to take at any time action as it deems necessary to maintain or restore
international peace and security

Collective Self- Defense


Right of state to come to the defense of a state whose situation
meets the condition of legitimate individual self-defense under the UN
Charter

Abatement Doctrine
When conditions in the territory of a neighbouring state might result
in anarchy or disorder and the authorities of the state are unable to
restore order and prevents spinning over the territory of another the latter has
the duty to intervene even by armed force to restore order in the border
and to end the chaos.

2. Right of Sovereignty and Independence

Sovereignty
It is the totality of the powers, legal competence, and privileges
arising from customary international law, and not dependent on the consent of
another state.

Independence
Means freedom from control by other state or group of state and not
freedom from the restrictions that are binding on all states forming the
family of nations; carries with it by necessary implication the correlative duty if non-
intervention

Intervention
An act by which a state interferes with the domestic or foreign affairs
of another state through the employment of force or threat which may be
physical, political or economic.

WHEN INTERVENTION SANCTIONED:


1. As an act of self-defense
2. When decreed by the Security Council as a preventive or enforcement
action for the maintenance of international peace and security
3. When such action is agreed upon in a treaty
4. When requested from fellow states or from the UN by the parties to a
dispute or a state beset by rebellion

Drago Doctrine

30
Intervention not allowed for the purpose of making a state pay its
public debts

3. Right of Equality
Every state is entitled to the same protection and respect as are
available to other states under the rules of international law.

Doctrine of State Immunity


As a consequence of the independence, territorial supremacy and
equality, a state enjoys immunity from the exercise of jurisdiction
(legislative, executive or juridical) by another state, unless it has given consent, waives
its immunity, or voluntarily submitted to the jurisdiction of the court concerned.

THE STATE IS DEEMED TO HAVE WAIVED ITS IMMUNITY:


A. When it gives consent at the time the proceeding is instituted
B. When it takes steps relating to the merits of the cases before invoking
immunity
C. When by treaty or contract it had previously given consent
D. When by law or regulation in force at the time complaint arose it has
indicated that it will consent to the institution of the proceedings

4. Right to Territorial Integrity and Jurisdiction


The territory of a state usually consists of the terrestrial domain,
maritime and fluvial domain and the aerial domain

5. Right of Legation
It is the right of the state to maintain diplomatic relations with other
states. The right to send diplomatic representatives is known as the
active right of legation. The right to receive diplomatic representatives
is known as the passive right of legation.

AGENTS OF DI PLOMATI C I NTERCOURSE


1. 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 honour and reputation
His quarters, archives, property and means of transportation are inviolate
Principle of Extraterritoriality

2. Foreign Secretary or Minister


3. Members of Diplomatic Service
4. Special Diplomatic Agents appointed by Head of the State
5. Envoys Ceremonial

FUNCTIONS OF DI PLOMATI C MI SSIONS

31
1. Representing sending state in receiving state
2. Protecting in receiving state interests of sending estate and its
nationals
3. Negotiating with government of receiving state
4. Promoting friendly relations between sending and receiving states and
developing their economic, cultural and scientific relations
5. Ascertaining by all receiving state and reporting thereon to
government of sending state
6. IN some cases, representing friendly governments at their request

Agreation
Process in appointment of diplomatic envoy where state resort to an
informal inquiry(enquiry) as to the acceptability of a particular envoy, to which the
receiving state responds with an informal conformity (agreement)

Letre De Creance (Letter of Credence)


With the name, rank, and general character of his mission, and a
request for a favourable reception and full credence

KINDS OF CONSULS
CONSULES MISSI CONSULES ELECTI
Professional or career consul s who Perform consular functions only in
are required to devote their full time addition to their regular callings
to discharge their duties
Nationals of sending state May or not be nationals of the
sending state

Ranks
1. Consul- general- heads several consular districts, or one exceptionally large
consular districts
2. Consul- takes charge of a small district or town port
3. Vice- consul- assists the consul
4. Consular agent- usually entrusted

PRIVELEGES AND IMMUNITIES ACCORDED TO DI PLOMATI C ENVOY


1. Inviolability of their correspondence, archives and other documents
2. Freedom of movement and travel
3. Immunity from jurisdiction for acts performed in official capacity
4. Exemption from certain taxes and customs duties

Immunities and privileges are also available to members of the consular


post their families and their private staff
Waiver of immunities may be by the appointing state

CASE: Liang vs. People, 323 SCRA 652 (2000)


32
FACTS: Petitioner is an economist for ADB who was charged by the Metropolitan Trial
Court of Mandaluyong city for allegedly uttering defamatory words against her fellow
worker with two counts of grave oral defamation. MeTC judge then received an office of
protocol from the Department of Foreign Affairs, stating that petitioner is covered by
immunity from legal process under section 45 of the agreement bet ADB and the
government. MeTC judge, without notice, dismissed the two criminal cases. Prosecution
filed writ of mandamus and certiorari and ordered the MeTC to enforce the warrant of
arrest.

ISSUES: Whether or not the petitioner is covered by immunity under the agreement and
that no preliminary investigation was held before the criminal cases were filed in court.

RULING: He is not covered by immunity because the commission of a crime


is part of the performance of official duty. Courts cannot blindly adhere
and take on its face the communication from the DFA that a certain person
is covered by immunity. That a person is covered by immunity is preliminary. Due
process is right of the accused as much as the prosecution.

Slandering a person is not covered by the agreement because our laws do


not allow the commission of a crime such as defamation in the name of
official duty. Under Vienna convention on Dipl omatic Relations,
commission of a crime is not part of official duty.

On the contention that there was no preliminary investigation conducted, suffice it to


say that preliminary investigation is not a matter of right in cases cognizable by the
MeTC such as the one at bar. Being purely a statutory right, preliminary investigation
may be invoked only when specifically granted by law. The rule on criminal procedure is
clear than no preliminary investigation is required in cases falling within the jurisdiction
of the MeTC. Besides, the absence of preliminary investigation does not affect the
courts jurisdiction nor does it impair the validity of the information or otherwise render
it
defective.

Extraterritoriality
Applies only to PERSONS and is based on treaty or convention credited
because of rise of nationalism and sovereign equality of states.

Exterritoriality
Exception of the PERSONS AND PROPERT Y from local jurisdiction on
basis of international customs.

Treaty
An international agreement concluded between states in written
form and governed by international law whether embodied in a single

33
instrument or in two or more related instruments . (art. 2 Vienna Convention on
the Law of Treaties, 1969)
Taiwan cannot enter into a treaty

REQUISITES OF A VALI D TREATY


1. Entered into by parties having treaty-making capacity
2. Through their authorized organs or representatives
3. Without attendance of duress, fraud, mistake, or other vices of
consent
4. Lawful subject matter and object
5. Ratification in accordance with their respective constitutional
processes

CASE: Bayan vs Zamora G. R. No. 138570 Oct. 10, 2000


A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and
governed by international law, whether embodied in a single instrument or
in two or more related instruments, and whatever its particular
designation.
Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops or facilities, should apply in the
instant case.

The 1987 Philippine Constitution contains two provisions requiring the


concurrence of the Senate on treaties or international agreements. Sec. 21 Art. VII,
which respondent invokes reads: No treaty or international agreement shall be
valid and effective unless concurred in by at least 2/3 of all the Members
of the Senate. Sec. 25 Art. XVIII provides: After the expiration in 1991 of the
Agreement between the RP and the US concerning Military Bases, foreign military
bases, troops or facilities shall not be allowed in the Philippines except under a treaty
duly concurred in and when the Congress so requires, ratified by a majority of votes
cast by the people in a national referendum held for that purpose, and recognized as a
treaty by the Senate by the other contracting state.

The first cited provision applies to any form of treaties and international
agreements in general with a wide variety of subject matter. All treaties and
international agreements entered into by the Philippines, regardless of subject matter,
coverage or particular designation requires the concurrence of the Senate to be valid
and effective.

In contrast, the second cited provision applies to treaties which involve presence
of foreign military bases, troops and facilities in the Philippines. Both constitutional
provisions share some common ground. The fact that the President referred the VFA to
the Senate under Sec. 21 Art. VII, and that Senate extended its concurrence under the
same provision is immaterial.

34
Q: VFA-concurred in by our senate but not by the US Senate
A: VFA still binding on its/ is still a binding treaty because it is not our
business to dwell into the domestic law of the other contracting party; we
are satisfied with the Senators pronouncement that the US will recognize
it.

Attentant Clause
Assassination of head of the State or any member of his family is not
regarded as political offence for purpose of extradition . Also applies to
genocide

STEPS I N TREATY MAKING PROCESS


1. Negotiation
Discussion of the provisions of the proposed treaty, undertaken by the
representatives of the contracting parties who are provided with credentials known as
full powers of PLENIS POUVIORS

2. Signature
Primarily intended as a means of authenticating the instrument and symbolizing
the good faith of the contracting parties.

Practice Aternat
Arrangement under which each negotiator is allowed to sign first on the
copy of the treaty which he will bring home to his own country , the purpose
being to preserve the formal appearance of equality among the
contracting states and to avoid delicate questions of precedence among
signatories.

3. Ratification
Act by which the state formally accepts the provisions of the treaty concluded by its
representatives.

4. Exchange of Instruments of ratifications


5. Registration with the UN

Concordat
A treaty or agreement between ecclesiastical and civil powers to regulate
the relations between the church and the state in those matters which, in some
respect are under the jurisdiction of both.

DOCTRI NES IN TREATIES

Jus Cogens

35
A jus cogens or peremptory is a norm which States cannot derogate
or deviate from in their agreements . It is a mandatory norm and stands on a
higher category than a jus dispotivum norm which States can set aside or modify by
agreement
A fiduciary Theory of Jus Cogens Evan J. Criddle and Evan Fox Decent

CASE: Isabelita Vinuya vs. Executive Secretary Romulo


Held:
Certain types of cases often have been found to present political questions. One
such category involves questions of foreign relations. It is well-established that
"[t]he conduct of the foreign relations of our government is committed by
the Constitution to the executive and legislative--'the political'--
departments of the government, and the propriety of what may be done in
the exercise of this political power is not subject to judicial inquiry or
decision." The US Supreme Court has further cautioned that decisions relating to
foreign policy are delicate, complex, and involve large elements of prophecy. They are
and should be undertaken only by those directly responsible to the people whose
welfare they advance or imperil. They are decisions of a kind for which the Judiciary has
neither aptitude, facilities nor responsibility.

Pacta Sunt Servanda


It simply means that treaties must be observed in good faith despite
hardship on the contracting state, such as conflicts between the treaty
and its constitutions or prejudice to the national interst as a result of the
operation of the treaty.

As a general rule, a party must comply with the provisions of a treaty and cannot
ignore or modify it without the consent of the other signatory. Willful disregard or
violation of treaties without just cause is frowned upon by the society of nations.

Clausula Rebus Sic Stantibus


1. It applies only to treaties of indefinite duration
2. The vital change claimed as jurisdiction for the discontinuance of
the treaty must have been unforeseen or unforeseeable and must
not have been caused by the party invoking the doctrine
3. The doctrine must be invoked within a reasonbale time from the
occurrence of the change asserted.
4. The doctrine cannot operate retroactively upon the provisions of
the treaty executed prior to the change in circumstance (Salonga
and Yap, 310)

CASE: Fisheries jurisdiction Case- UK vs. Iceland

36
Iceland claims that its agreement with the UK not to extend its fishereies
jurisdiction was no longer binding due to fundamental change of circumstances

Held:
For this to be a ground for invoking the termination of a treaty, it should have
resulted in a radical transformation of the extent of the obligations still to be performed.
The change must have increased the burden of the obligations to be
executed to the extent of rendering the performance something essentially
different from that originally undertaken.

This is not the case here, Iceland cannot validly invoke Rebus Sic Stantibus in
claiming the termination of the treaty.

Most Favored Nation Clause


Pledge made by a contracting party to a treaty to grant to other
party treatment not less favorable than that which had been given or may
be granted to the most favored among parties .

TERMI NATION OF TREATIES


1. Expiration of term
2. Accomplishment of purpose
3. Impossibility of performance
4. Loss of subject matter
5. Desuetude
o Desistance of parties by express mutual consent or exercise of right of
renunciation when allowed.
6. Extinction of one parties; if treaty is bipartner
7. Novation
8. Occurrence of vital change of circumstance
9. Outbreak of war
10. Voidance of treaty because of:
a. Defect in constitution
b. Violation of its provision by one party
c. Incompatibility with International law
11. Application of the doctrine of the Rebus Sic Stantibus
12. The doctrine of Jus Cogens (or the emergence of a new preemptory norm of
general international law which renders void any existing treaty conflicting with
such norm)

Protocol de Cloture
An instrument which records the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the contents of treaties, conventions,

37
recommendations and other acts agreed upon and signed by the plenipotentiaries
attending the conference. It is not the treaty and does not require the
concurrence of the senate. (Tanada vs. Angara)

NATIONALITY AND STATELESSNESS

Nationality
Membership on a political community with all its concomitant rights
and obligations. It is the tie that binds the individual to his state from
which he can claim protection and whose law he is obliged to obey

Citizenship
Membership in a political community which is personal and more or
less permanent in character

Doctrine of Effective Nationality


Expressed in Art. 5 of the Hague Convention of 1930 on the Conflict of
Nationality Laws that a person having more than one nationality shall be treated as if he
had only one- either the nationality of the country in which he is habitually and
principally resident or the nationality of the country with chich the circumstances he
appears to be in face most closely connected.

CASE: Frivaldo v. Comel ec


That Nottebohm case is not relevant to the petition before us because it dealt
with a conflict between the nationality laws of two states as decided by a third state. No
third state is involved in the case at bar; in fact, even the United States is not actively
claiming Frivaldo as its national. The sole question presented to us is whether or not
Frivaldo is a citizen of the Philippines under our own laws, regardless of other
nationality laws. We can decide this question alone as sovereign of our own territory,
conformably to Section 1 of the said Convention providing that "it is for each State to
determine under its law who are its nationals."

Statelessness
Condition or statues of an individual who is born without any nationality or
who loses his nationality without retaining or acquiring another

De Jure Statelessness
It is where the exists no recognized state in respect of which the subject has
a legally meritorious basis to claim nationality

De Facto Statelessness

38
It is where the subject may have a legally meritorious claim but is
precluded from asserting it because of practical considerations such as cost,
circumstances of civil disorder, or the fear of persecution

ALIENS
Definition
It is a person in a country who is not a citizen of the country

Treatment of Aliens
Flowing from its right to existence and as an attribute of sovereignty, no state
is under obligation to admit aliens . The state can determine in what cases and
under what conditions it may admit aliens.
1. The state has the Right to EXPEL aliens from its territory through:
a. Deportation
Expulsion of alien considered undesirable by the local
state, usually not necessarily to his own state
b. Reconduction
Forcible conveying of aliens back to their home state
without any formalities

2. The alien must accept the institutions of local states as he finds


them.

Doctrine of State Responsibility


State may be held liable for injuries and damages sustained by the
alien while in the territory of the state provided:
1. The act or omission constitutes an international delinquency
2. The act or omission is directly or indirectly imputable to the state
3. Injury to the claimant state indirectly because of damage to its
national

Calvo Clause
It is a stipulation by virtue of which an alien waives or restricts his
right to appeal to its own state in connection with any claim arising from a
contract with foreign state and limits himself to the remedies available under the
law of the state.

Drago Doctrine
In 1902, Great Britiain, Italy and Germany established a bloackade against
Venezuela in order to enforce certain contractual and other claims against it, leading
Foreign Minister Jose Maria Drago of Argentina to formulate the doctrine that a
public debt cannot give rise to the right of armed intervention.

39
This principle was later adopted in the Second Hague Conference, but subject to
the qualitfication that the debtor state should not refuse or neglect to reply
to an offer of arbitration or after accepting the offer, prevent any
compromise from being upon, or after the arbitration, fail to submit to the
award. This qualification is known as the PORT ER RESOLUTION

Refugees
A person who, owing to a well-founded fear of being persecuted for
treasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality , and is
unable or wing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his former,
habitual residence, is unable or owing to such fear, is unwilling to return to
it. (Convention Relating to the Status of Refugees, Art.1 a(2) ).

Non- refoulment
Prohibits state to return or expel a refugee to the territory where he
escaped because his life or freedom is threatened. The State is under
obligation to grant temporary asylum. (Refugee Convention of 1951)

Right of Asylum
Refuge in another state. Every foreign state can be at least a provisional asylum
for any individual, who being persecuted in his home State, goes to another state, in the
absence of any international treaty stipulating the contrary, no state is, by international
laws, obliged to refuse admission into its territory to such a fugitive or in case he has
been admitted, to expel him or deliver him up to the prosecuting state.

The right of asylum is not a right possessed by an alien to demand that a state
protect him and grant him asylum. At present, it is just a PRIVILEGE granted by a
state to allow an alien escaping from persecution of his country for
political reasons to remain and to grant him asylum.

Diplomatic Asylum
Refugee in another state for political offense, danger to life or no
assurance of due process

Extradition
The removal of an accused from the Philippines with the object of
placing him at the disposal of foreign authorities to enable the requesting
state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed

40
on him under the penal or criminal law of the requesting state or
government (P.D. 1069, Sec 2 (a)).

Specialty and Double criminality :


Requirements for the exercise of extradition:
1 The Principle of speciality requires that the requesting state must specify the
crime under the extradition treaty for which the fugitive or accused is sought,
and that he is to be tried only for the offense specified in the treaty.
2 The principle of double criminality requires that an offense must be punishable
under the law of both the extraditing state and the requesting state for the
accused to be extradited.

GENERAL PRI NCI PLES IN EXTRADITION


1 Basis: a TREATY based on consent of the parties
2 PRI NCI PLE OF SPECIALTY
A fugitive who is extradited may be tried only for the crime specified in the
request for extradition and included in the list of offenses in the treaty
Non- List Type of Treaty
o Offenses punishable under the laws of both states by imprisonment
of 1 year or more are included among the extraditable
offenses(less than 1 year, cant extradite)
3 Any person may be extradited, he NEED NOT BE A CITIZEN OF T HE
DEMANDI NG STATE
4 Political and Religious offenders are GENERALLY NOT SUBJECT to
extradition
5 IN the absence of special agreement, offense must have been committed within
the TERRITORY OR AGAI NST T HE INT EREST OF T HE DEMANDI NG
STATE.

CASE: Wright vs. CA


Australia and the Government of the Philippines in the suppression of crime,
entered into a Treaty of Extradition on the 7th of March 1988. The said treaty was
ratified in accordance with the provisions of Section 21, Article VII of the 1987
Constitution in a Resolution adopted by the Senate on September 10, 1990 and
became effective 30 days after both States notified each other in writing that the
respective requirements for the entry into force of the Treaty have been complied with.
Petitioner contends that the provision of the Treaty giving retroactive effect to the
extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI
of the Constitution.

ISSUE: Can an extradition treaty be applied retroactively?

41
HELD:
YES, Applying the constitutional principle, the Court has held that
the prohibition applies only to criminal legislation which affects the
substantial rights of the accused. This being so, there is no absolutely no merit in
petitioner's contention that the ruling of the lower court sustaining the Treaty's
retroactive application with respect to offenses committed prior to the Treaty's coming
into force and effect, violates the Constitutional prohibition against ex post facto laws.
As the Court of Appeals correctly concluded, the Treaty is neither a piece of
criminal legislation nor a criminal procedural statute. It merely provides
for the extradition of persons wanted for prosecution of an offense or a
crime which offense or crime was already committed or consummated at
the time the treaty was ratified.

CASE: USA vs. Purganan


The ultimate purpose of extradition proceedings in court is only to
determine whether the extradition request complies with the Extradition
Treaty, and whether the person sought is extraditable.
The proceedings are intended merely to assist the requesting state in bringing the
accused -- or the fugitive who has illegally escaped -- back to its territory, so that the
criminal process may proceed therein.
By entering into an extradition treaty, the Philippines is deemed to have reposed its
trust in the reliability or soundness of the legal and judicial system of its treaty partner,
as well as in the ability and the willingness of the latter to grant basic rights to the
accused in the pending criminal case therein.
Extradition proceedings are not equivalent to a criminal case in which
guilt or innocence is determined. Consequently, an extradition case is not
one in which the constitutional rights of the accused are necessarily
available. It is more akin, if at all, to a courts request to police authorities for the
arrest of the accused who is at large or has escaped detention or jumped bail. Having
once escaped the jurisdiction of the requesting state, the reasonable prima facie
presumption is that the person would escape again if given the opportunity.

General Rule:
Prospective extraditees not entitled to notice and hearing before
warrants for their arrest can be issued to the right to bail and provisional
liberty while the extradition proceedings are pending
Exception :
1. Once bail is granted, he will not be flight risk or danger to community
2. There exist special, humanitarian, and compelling circumstances

Principles on Extradition:
1. No State is obliged to to extradite unless there is a treaty

42
2. Differences in legal system can be an obstacle to interpretation of what the
crime is
3. Religious and political offenses are not extraditable

Procedure is normally through diplomatic channels (how extradition rules can be


bypassed: US vs. Alvarez- Machain; how due process requirements work in an
extradition case: Secretary of Justice vs. Lantion; USA vs. Purganan and Crespo)

CASE: Hong Kong v. Olalia G.R. No. 153675


Facts:
The Philippines and Hong Kong signed an Agreement for the Surrender of Accused
and Convicted Persons.
Private respondent Muoz was charged before the Hong Kong Court. Department of
Justice (DOJ) received from the Hong Kong Department of Justice a request for the
provisional arrest of private respondent
Muoz. The DOJ then forwarded the request to the National Bureau of Investigation
(NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the
provisional arrest of private respondent. The NBI agents arrested and detained him.
Muoz filed a petition for bail which was denied by Judge Bernardo, Jr. holding that
there is no Philippine law granting bail in extradition cases and that private respondent
is a high flight risk. After Judge Bernardo, Jr. inhibited himself from further hearing the
case, it was then raffled off to Branch 8 presided by respondent judge. Private
respondent filed a motion for reconsideration of the Order denying his application for
bail and this was granted by respondent judge.

ISSUE Whether or not the trial court committed grave abuse of discretion amounting to
lack or excess of jurisdiction in allowing private respondent to bail?

HELD
No, the trial court did not commit grave abuse of discretion amounting to lack
or excess of jurisdiction in allowing private respondent to bail.
Accordingly, although the time-honored principle of pacta sunt
servanda demands that the Philippines honor its obligations under the
Extradition Treaty it entered into with the Hong Kong Special
Administrative Region it does not necessarily mean that in keeping with its
treaty obligations, the Philippines should diminish a potential extraditee s
rights to life, liberty, and due process guaranteed by the Constitution.
More so, where these rights are guaranteed, not only by our Constitution, but also by
international conventions, particularly the Universal Declaration of Human Rights, to
which the Philippines is a party.
We should not, therefore, deprive an extraditee of his right to apply for bail,
provided that a certain standard for the grant is satisfactorily met. In his Separate
Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed clear and convincing evidence
should be used in granting bail in extradition cases. According to him, this standard

43
should be lower than proof beyond reasonable doubt but higher than preponderance
of evidence. The potential extraditee must prove by clear and convincing evidence
that he is not a flight risk and will abide with all the orders and processes of the
extradition court. In this case, there is no showing that private respondent presented
evidence to show that he is not a flight risk. Consequently, this case should be
remanded to the trial court to determine whether private respondent may be granted
bail on the basis of clear and convincing evidence.
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to
determine whether private respondent is entitled to bail on the basis of clear and
convincing evidence. If not, the trial court should order the cancellation of his bail
bond and his immediate detention; and thereafter, conduct the extradition proceedings
with dispatch.

Constitutional Provision on bail applies only in criminal proceeding, not to


extradition

Criminal Proceedings: Extradition proceedings:


-Full blown trial -Summary in nature
-proof beyond reasonable doubt - allow admission of evidence in a
less stringent standard
-judgment becomes executory upon -the President has discretion
being final rendered even though the court
deems it proper extraditable.

In extradition proceedings, it is not necessary that there be a prior hearing before


the accused is arrested. All that is necessary for the extradite to be arrested is
a prima facie finding by the judge that the petition for extradition and its
supporting documents that
1 They are sufficient in form and substance
2 they show compliance with the extradition treaty and law ,
3 person sought is extraditable.

SETTLEMENT OF INTERNATIONAL DISPUTES


International Dispute
A dispute exists when one state claims that another state should behave in a
certain manner and that claim is rejected by the latter.

It is 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.

44
PACIFIC or AMICABLE METHODS OF SETTLING DISPUTES
1. Negotiation
st
o Generally the 1 step taken in the settlement of international disputes, it
is nothing more than the discussion by the parties themselves of their
respective claims and counterclaims with a view to their just
and orderly adjustment.
o Process by which State settle their differences through an exchange of
views between diplomatic agencies.
2. Enquiry
o Act by which the facts material to the dispute are ascertained, established
and clarified by an impartial fact finding body towards the adjustment or
resolution of a dispute
3. Tender of Good Offices
rd
o Method by which a 3 party attempts to bring the disputing states
together in order that they may be able to discuss the issues in
contention
o This is usually employed when the protagonists are no longer on
speaking terms, that is, when they have served diplomatic relations or
have actually commenced hostilities.
4. Mediation
rd
o A 3 party does not merely provide the opportunity for the antagonists to
negotiate but also actively participates in their discussions in order to
reconcile their conflicting claims.
o Offers a solution; good offices merely bring parties together.
5. Conciliation
rd
o Active participation of a 3 party, whose services are solicited by the
disputants, in the effort to settle the conflict; but the conciliators
recommendations are not binding. (Shuttle diplomacy- back and forth to
the party)
6. Arbitration
rd
o The solution of a dispute by an impartial 3 party usually a tribunal
created by the parties themselves under a charter known as a
compromise
7. Judicial Settlement
o Similar to arbitration in the nature of the proceedings and in the binding
character of the award
o Judicial body is pre-existing
o Jurisdiction in judicial settlement is usually compulsory, and the law
applied by the judicial tribunal is independent of the will of the parties
o Judicial settlement of the international disputes is now lodged in the ICJ
(International Court of Justice)

45
8. Resort to international (regional) Organizations
o The parties may, of their own volition, or at the instance of the
organization itself, assume the obligation of the settling the dispute.

HOSTILE METHODS
Where the pacific methods of settlement have failed, states sometimes find it
necessary to resort to hostile methods, which may be severance of diplomatic relations,
retorsion, reprisal or intervention
1. Severance of Diplomatic Relations
2. Retorsion
a. Retaliation where acts complained of do not constitute legal ground of
offense but are rather in the nature of unfriendly acts done in pursuance
of a legitimate state interest but indirectly hurtful to other states.
b. Unfriendly, but lawful, coercive acts done in retaliation for unlawful
treatment and acts of discrimination of another state
i.e. the levy of high discriminatory tariffs on goods coming from the
other state

3. Reprisal
a. Unlawful acts taken by one state in retaliation for reciprocal unlawful acts
of another state.
b. Purpose: to bring the offending state to terms
c. These acts are essentially forcible and are taken only by strong states with
sufficient power to back up their demands.

FORM OF REPRI SALS:


1. Freezing of the assets of the nationals of the other state
2. Embargo
a. The forcible detention or sequestration of the vessels and othe property
of the offending state
3. Pacific Blockade
a. The prevention of entry to or exit from the parts of the offending state of
means of communication and transportation

NOTE: this could violate the UN Charter

4. Non- Intercourse
a. Suspension of all intercourse with the offending state, particularly in
matters of trade and commerce
5. Boycott

46
a. Concerted suspension of commercial relations with the offending state,
with particular reference to a refusal to purchase goods.

WAR

The law of War


Armed contention between public forcer of states or other belligerent
communities implying employment of force between parties for the purpose of
imposing their respective demands upon each other.

The Philippine renounces war as an instrument of national policy. (Art. 2 (2)


1987 Consti)

May exist even without the use of force, as when one state formally refuses to be
governed by the kinds of peace in its relations with another state even if actual hostiles
have not taken place between them.

SANCTIONS OF THE LAW OF WAR


The commonly accepted sanctions of the laws of war are the following:
1. Protest lodged by one belliegerent, usually accompanied or followed by an
appeal to world opinion, against unlawful acts of war committed by the other
belligerent.
2. Reparation for damages caused by the defeated belligerent.
3. Punishment of war criminals
th
Reprisal are often mentioned as a 4 sanction, but it is doubtful if they
can be justified under the UN Charter as they are essentially unlawful acts
taken by one state for the also illegal acts of the other belligerent.

COMMENCEMENT OF WAR:
1. With the declaration of war (Hague Convention of 1907)
2. With the rejection of an ultimatum (Hague Convention)
3. With the commission of an act of force regarded by one of the belligerent as an
act of war.

TERMI NATION OF WAR:


1. Simple cessation of utilities
o Usually, the principle of the uti passidetis, with respect to properly and
territory possessed by the belligerents, is applied.
2. Conclusion of negated treaty of peace
3. Unilateral declaration by the victor

47
o Defeat of one of the belligerents followed by a dictated treaty of peace, or
annexation of conquered territory
Jus Postliminy
Right of Postliminum is the right by which persons or things taken by the enemy
are restored to the former state on coming actually into the power of the nation to
which they belong

Jus Postliminum also signifies the reinstatement of the authority of


the displaced government once control of the enemy is lost over the
territory affected . Thus upon the end of a belligerent occupation, the laws of the re-
established government are revived and all the illegal acts of the belligerent occupant,
as well as its lawful acts of a political character, are invalidated.

Postliminum is the revival or reversion to the old laws and sovereignty of territory
which has been under belligerent occupant is lost over territory affected.

Uti Possidetis As You Possess


Allows retention of property or territory in the belligerents actual possession at
the cessation of the hostilities.
EFFECTS OF THE OUTBREAK OF WAR
1. The laws of peace cease to regulate the relations of the belligerents and are
superseded by the laws of war;
2. Diplomatic and consular relations between the belligerents are terminated, and
their respective representatives are allowed to return to their own countries;
3. Treaties of political nature, such as treaties of alliance, are automatically
concelled, but those which are precisely intended to operate during war, such as
one regulating the conduct of hostilities are activated.
4. Enemy public property found in the territory of other belligerent at the outbreak
of the hostilities is, with certain exceptions, subject to confiscation. Enemy
provate property may be sequestered, subject to return or reimbursement after
the war in accordance with the treaty of peace.

Combatants
Those who engage directly or indirectly in the hostilities

COMBATANTS MAY BE:


1. Non- privileged
a. Like spies, who, under false pretense try to obtain vital information from
the enemy ranks and who, when caught, are not considered prisoners of
war.
48
b. Privileged combatants- military
2. Non- combatants
a. Those who do not engage in combat, such as women and children
b. Also includes medical personnel and chaplains
3. Prisoners of War
a. Any person captured or interned by a belligerent power during war. In the
strictest sense it is applied only to members of regularly organized armed
forces, but by broader definition it has also included guerrillas, civilians
who take up arms against an enemy openly, or non-combatants
associated with a military force

NEUTRALITY
Neutrality
It is the condition of a state that does not take part, directly or indirectly, in a war
between other states.

If recognized by the belligerents, this condition gives rise to rights and


obligations between them and the neutral state in their mutual relations

Neutralization
It is the result of a treaty wherein the conditions of the status are agreed upon by
the neutralized state and the other signatories.

NEUTRALITY NEUTRALIZATION
Dependent, on attitude of neutral state, Results of treaty wherein duration and other
which is free to join either of belligerents conditions are agreed upon by neutralized
any time it sees fit. state and other states.
Governed by laws of nations Governed by neutralization by agreement
Obtains only during war Intended to operate in times of peace and
war
Only states may become neutral May apply to portions of the territory of the
state
e.g. islands, rivers and canals

Japan- Neutralized by German


Switzerland- neutral state world war 2

DUTIES OF A NEUTRAL STATE


1. Abstention

49
a. To abstain from taking part in the hostilities and from giving assistance to
either belligerent
2. Prevention
a. To prevent its territory from being used by the belligerents in the conduct
of hostilities;
3. Acquiescence
a. To acquiescence in certain restrictions and limitations that the
belligerents may find necessary to impose, especially in connection with
international commerce

The Neutrality Act of 1794


Made it illegal for an American to wage war against any country at peace with the
United States.
The act also forbade foreign war vessels to outfit in American waters and set a
three mile territorial limit at sea
If any person shall within the territory or jurisdiction of the United States begin
or set on foot or provide or prepare the means for any military expedition or
enterprise...against the territory or dominions of any foreign prince or state of
whom the United States was at peace that person would be guilty of a
misdemeanour

Blockade
A blockade is an effort to cut off food, supplies, war material or communications
from a particular area by force, either in part or totally.

Close patrol of the hostile ports, in order to prevent naval forces from putting to
sea, is also referred to as a blockade. When a coastal cities or fortresses were besieged
from the landward side, the besiegers would often blockade the seaward side as well.
Most recently, blockades have sometimes included cutting off electronic
communications by jamming radio signals and severing undersea cables.

Prize
Prize is a term used in admiralty law to refer to equipment, vehicles, vessels,
and cargo captured during armed conflict. The most common use of prize in this
sense is the capture of an enemy ship and its cargo as a prize of war.
In the past, it was common that the capturing force would be allotted a share of
the worth of the captured prize. Nations often granted letters of marque which
would entitle private parties to capture enemy property, usually ships.

50
Once the ship was secured on friendly territory, it would be made the subject of
a prize case, an in rem proceeding in which the court determined the status of
the condemned property and the manner in which it was to be disposed of.

Prize Court
A prize court is a court (or even a single individual, such as an ambassador or
consul) authorized to consider whether or not a ship has been lawfully captured
or seized in time of war or under the terms of the seizing ship's letters of marque
and reprisal.
A prize court may order the sale or destruction of the seized ship, and the
distribution of any proceeds to the captain and crew of the seizing ship. A prize
court may also order the return of a seized ship to its owners if the seizure was
unlawful, such as if seized from a country which had proclaimed its neutrality.

CONTRABAND
Contraband is enemy goods carried by vessels of neutral nations during wartime
that may be confiscated by a belligerent power and thus prohibited from delivery to the
enemy.
Traditionally, contraband is classified into two categories, absolute contraband
and conditional contraband. The former
Absolute contraband
Category includes arms, munitions, and various materials, such as
chemicals and certain types of machinery that may be used directly to
wage war or be converted into instruments of war.
Conditional contraband
Formerly known as occasional contraband, consists of such materials as
provisions and livestock feed. Cargo of this kind, while presumably
innocent in character, is subject to seizure if, in the opinion of the
belligerent nation that seizes them, the supplies are destined for the
armed forces of the enemy rather than for civilian use and consumption.
In former agreements among nations, certain other commodities,
including soap, paper, clocks, agricultural machinery and jewelry, have
been classified as non-contraband, although these distinctions have
proved meaningless in practice.

Doctrine of Ultimate Destination


Idea that shipments and ships going into the confederacy or any other place in
general that was under a blockade could be seized

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Doctrine of Ultimate Consumption
Goods intended for civilian use which may ultimately find their way and be
consumed by belligerent forces, may be seized on the way.

Right of Angary
Belligerent 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.

Right of Visitation
This is the right of belligerent vessels and aircraft to intercept and inspect
neutral merchant vessels on the high seas for the purpose of determining if they are in
any way connected with the hostilities.
e.g. carrying contraband, attempting to breach a bloackade, or engage in
unneutral service, in favour of the other belligerent

In time of war, there are relations between the belligerents that are not strictly hostile
1. Flag of Truce
a. It is a white flag carried by an individual authorized by one belligerent to
enter into communications with the other
2. Parlementaric
a. Bearer of flag
b. Entitled of inviolability as long as he does no take advantage of his
privileged position to commit an act of treachery
3. Cartels
a. Agreement to regulate intercourse during war on such matters as postal
and telegraphic communication, the reception of flags of truce and the
exchange of prisoners
b. Cartel Ship- Vessel sailing under a safe-conduct for the purpose of
carrying exchanged prisoner of war
4. Passport
a. Written permission given by the belligerent government on its authorized
agent to the subjects of the enemy state to travel generally in belligerent
territory
5. Safe-Conduct
a. A pass given to an enemy subject or an enemy vessel allowing passage
between defined points
i. Given by the belligerent government or the commander of the are
within which it is effective
6. Safe guard

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a. Protection granted by a command officer either to enemy persons or
property within his command extreme measure to fulfil their result
7. License to trade
a. Permission given by the competent authority to individuals to carry on

AXIS POWER
o Also known as the axis alliance, axis nations, axis countires, axis
o Began in 1936 with treaties of friendship between Germany and Italy and
between Germany and Japan
o Tribunal Pact (Germany, Italy and Japan)

ALLIES
o Opposed the axis power during WW2
o They became involved in WW2 either because they had already been invaded,
were directly threatened with invasion by the axis or because they were
concerned that the axis powers to control the world

RI GHT OF PRISONERS OF WAR


1. Information to be extracted
2. Seizure of religious articles
3. Proper burial
4. If wounded, must be repatriated
5. Seizure of personal belonging

25 crimes considered as Genocide

I NTERNATIONAL CRI MI NAL COURT (not part of UN)

International Criminal Court (I CC) International Court of Justice (I CJ)

it is a criminal tribunal it is a civil tribunal


has criminal jurisdiction to does not have criminal jurisdiction
prosecute individuals over individuals
it prosecutes individuals for it is a civil tribunal that deals
genocide, crimes against humanity, primarily with disputes between
war crimes and the crimes of States
aggression it is a principal organ of the United
it is independent of the United Nations
nations

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o A permanent tribunal to prosecute individuals for genocide, crimes against
humanity, war crimes, and the crime of aggression (although it cannot, until at
least 2017, exercise jurisdiction over the crime of aggression).
o founding treaty- the Rome Statute of the International Criminal Court
on July 17, 1998
o Entered into force on July 1, 2002
o As of July 2012, 121 states are states parties to the Statute of the Court
o The law of treaties obliges these states to refrain from acts which would defeat
the object and purpose of the treaty until they declare they do not intend to
become a party to the treaty.
o USA, CHINA and RUSSIA not members
o UN can refer a case to ICC
o ICC in Hague, Netherlands
o Language: English and French

The Rome Statute


The Rome Statute established the ICC which shall have the power to exercise
its jurisdiction over persons for the most serious crimes of international concern x x x
and shall be complementary to the national criminal jurisdictions. (Article I, Rome
Statute) Its jurisdiction covers the following crimes:
1. Genocide;
2. Crimes against humanity;
3. War crimes; and
4. Crime of aggression. (Article 5, Rome Statute)

General Principles:
1. Nullum crimen sine lege (Ex post Facto law)
2. Nullum poena sine lege (void for vagueness)
3. Double Jeopardy
4. Non-retroactivity
5. Principle of Superior Responsibilitya superior is held liable for failure to prevent
subordinates from committing unlawful acts, in view of his command and control over
them and liable as well for their crimes
6. Mens reamaterial elements of a crime must be committed with intent and
knowledge

No trial in absentia
No reservations
Penalties: Imprisonmentmax of 30 years; no death penalty
Principle of Complementaritythe ICC shall be complementary to national
criminal jurisdictions of states. It gives primacy over the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes.

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The Statute was opened for signature by all States in Rome on July 17, 1988 and
had remained open for signature until December 31, 2000 at the UN Headquarters in
New York. The Philippines signed the Statute on December 28, 2000 through Charge
d Affairs Enrique A. Manalo of the Philippine Mission to the UN. Its provisions, however,
require that it be subject to ratification, acceptance or approval of the signatory states.
(Article 25, Rome Statute)

Jurisdiction
1. It will not act as if a case is investigated or prosecuted by a national juridical
system unless the national proceedings are not genuine i.e. if formal
proceedings were undertaken surely to shield a person from criminal
responsibility
2. Only tries those accused of greatest crimes
a. It observes the highest standards of fairness and due process
3. Complementary to national courts which means that the court will only act when
countries themselves are unable or unwilling to investigate or prosecute.

4 ORGANS
Assembly of parties
o Composed of all members
o 121 member, Philippines a member as of 2011
o Established a TRUST FUND for the benefit of victims of crimes within the
jurisdiction of the court and the families of these victims

1. Presidency
a. 1 of the Judges
b. Song sang Hyun
o Responsible for the overall administration of the courts
o Exception:
Office of the prosecutor
Specific function assigned to presidency in accordance with the
statute
o Composed of 3 judges of the court
Elected to the Presidenct by their fellow judges
Term of office: 3 years
2. Judicial Division
a. 18 judges
b. 9 years term of office, no re-election
c. 3 Divisions
d. Qualifications
Supreme Court Qualification
Advance degree in M.B.A.
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Organized into the following:
Pre-trial Division
Trial Division
Appeal Division

Judges of each division sit in chambers which are responsible for conduct of the
proceedings of the court at different stages
Assignment of judges to division is made on the basis of the nature of the
funtions each divisions performs and the qualifications and experience of the
judge
Done in a manner ensuring that a Division benefits from an appropriate
combination of experience in criminal law and procedure and international law.

3. Office of the Prosecutor


Responsible for receiving referals and any substantiated information on crimes
within the jurisdiction of the court, for examining them and for conducting
investigations and prosecutions before the court
Headed by: Fatou Bensouda
Elected by the state parties
Term of Office: 9 years
Assisted by deputy prosecutor
o In charge of the prosecution division of the office of the prosecutor

4. Registry
a. Responsible for the non-judicial aspects of the administration and serving
of the court
Headed by: Registrar
Principal administrative officer of the court
Exercises his function under the authority of the pres of the court
Elected by the judges
Term: 5 years
Current: Silvana Arbia

Who can Initiate proceedings?


Proceedings before the ICC may be initiated by a state party, the prosecutor or
the UN Security Council
The jurisdiction of the ICC is based on complementarity which allows national
courts the firm opportunity to investigate or prosecute

Just war/ Bellum sustum

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A war was originally accepted as legitimate means of compulsion, provided,
according to some writers, that it was a reaction to an international delict

Outlawry of War
All members are called upon to abstain from the use of force in the solution of
international differences and to sse to it that even non-members comply with its
declared principles so far as may be necessary for the maintenance of
international peace and security

Conduct of the Hostilities


3 basic principles underlie the rules of warfare
1. Principle of Military Necessity
a. The belligerents may, subject to the other 2 principles, employ any
amount of force to compel the complete submission of the enemy with
the least possible loss on lives, time and money
i.e. bombing of Nagasaki and Hiroshima

2. Principle of Humanity
a. Prohibits the use of any measure that is not absolutely necessary for the
purposes of the war
i. i.e. poisoning of wells and weapons, expanding bullets and
asphyxiating gases
ii. Enemy vessel sunk- either belligerent must see to the safety of the
persons on board
iii. Wounded and sick- must be humanely treated without distinction
of nationality by the belligerent in whose power they are
3. Principle of Chivalry
a. Basis of such rules that require the belligerents to give proper warning
before launching a bombardment

Republic Act No. 9851, the new Philippine Act on Crimes Against
International Hu manitarian Law, Genocide, and Other Crimes Against
Humanity

Signed into law on 11 December 2009,

The most important features of R.A. No. 9851 might be outlined as follows:
Defining and penalizing war crimes, genocide, and other crimes against
humanity.

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Applicability to all individual perpetrators, whether state agents or non-state
actors (unlike the Anti-Torture Act which is limited to state-agent perpetrators).
Applying certain international criminal law principles of irrelevance of official
capacity (for immunities), responsibility of superiors (i.e. command
responsibility), unlawful superior orders, and non-prescription, among others.
Instituting a form of universal jurisdiction, albeit qualified.
Providing for international standards for protection of victims and witnesses, as
well as reparations to the former.
Express applicability of international law, including of specific international
treaties.
Providing for the designation of special courts, prosecutors and investigators,
and their effective training in human rights, IHL and international criminal law.
No requirement of implementing rules and regulations (unlike the Anti-Torture
Act)
Basically, war crimes are serious violations of the protection that should be
accorded to civilians or non-combatants during armed conflict, as well as serious
violations of the established limitations on the methods and means of warfare, for the
benefit also of the combatants.

attack directed against any civilian population


An attack directed against any civilian population is defined [Sec. 3(e)] under
R.A. No. 9851 as a course of conduct involving the multiple commission of acts
referred to in Section 6 of this Act against any civilian population, pursuant to or in
furtherance of a State or organizational policy to commit such attack. Note multiple
commission of acts referred to and pursuant to or in furtherance of a State or
organizational policy. The latter clearly indicates that this could be perpetrated by a
non-state armed group. And the attack must be widespread or [NOT and] systematic
to make this a crime against humanity. As already indicated early on above, something
like the Maguindanao Massacre involving multiple willful killing as part of a
systematic pre-planned attack directed by Ampatuan clan leaders (who were also
public officials) against a group of civilians led by rival Mangudadatu clan members
can be characterized as a crime against humanity.

R.A. No. 9851 quite significantly provides for command responsibility as an


operative principle of criminal liability for the first time on the level of a national statute
through a provision on responsibility of superiors [Sec. 10], thus: a superior shall be
criminally responsible as a principle for such crimes committed by subordinates under
his/her effective command and control, or effective authority and control as the case
may be, as a result of his/her failure to properly exercise control over such
subordinates, where:

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(a) The superior either knew or, owing to the circumstances at the time, should have
known that the subordinates were committing or about to commit such crimes; and
(b) The superior failed to take all necessary and reasonable measures within his/her
power to prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.

Applicability of International Law


R.A. No. 9851 provides that in its application and interpretation, Philippine courts shall
be guided by the following international law sources [Sec. 15]:
(a) The 1948 Genocide Convention;
(b) The 1949 Geneva Conventions I-IV, their 1977 Additional Protocols I and II and
their 2005 Additional Protocol III;
(c) The 1954 Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflict, its First Protocol and its 1999 Second Protocol;
(d) The 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on
the Involvement of Children in Armed Conflict;
(e) The rules and principles of customary international law;
(f) The judicial decisions of international courts and tribunals;
(g) Relevant and applicable international human rights instruments;
(h) Other relevant international treaties and conventions ratified or acceded to by the
Republic of the Philippines; and
(i) Teachings of the most highly qualified publicists and authoritative commentaries on
the foregoing sources as subsidiary means for the determination of rules of
international law.

Special Courts, Prosecutors, Investigators, and Training


Under R.A. No. 9851 [Sec. 18], the Regional Trial Courts shall have original and
exclusive jurisdiction over the international crimes punishable under this Act. The
Supreme Court shall designate special courts to try cases involving crimes punishable
under this Act. For these cases, the Commission on Human Rights, the Department of
Justice, the Philippine National Police or other concerned law enforcement agencies
shall designate prosecutors and investigators to investigate as the case may be. Just as
significant, the State shall ensure that judges, prosecutors and investigators, especially
those designated for purposes of this Act, receive effective training in human rights,
international humanitarian law and international criminal law.

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