WAR, BELLIGERENCY & NEUTRALITY

WAR

War is the contention between 2 states, through their armed forces, for the purpose of
overpowering the other and imposing such conditions of peace as the victor pleases.

War does not mean the mere employment of force, if a nation declares war against another, war
exist, though no force has yet been used.
On the other hand, in case of reprisal, force may already be used but no state of war may yet exist.

Outlawry (condemnations) of War

a. Covenant of League of Nations, which provided conditions for the right to go to war
b. Kellog-Briand Pact of 1928, aka General Treaty for the Renunciation of War, ratified by 62 states,
which forbade war as an instrument of national policy.
c. Charter of the United Nations, Article 2 of which prohibits the threat or use of force against the
territorial integrity or political independence of a state.

3 Commencements of War (Hague Convention 1907)

a.declaration of war
b.rejection of an ultimatum
c.commission of an act of force regarded by one of the belligerents as an act of war.

Effects of Outbreak of War:

a.laws of peace cease to regulate the relation between the belligerents and are superseded by the
laws of war, while 3rd states are governed by the laws of neutrality in their dealings with the
belligerents.

b.diplomatic relations are terminated and their representatives are allowed to return to their own
countries.

c.treaties of a political nature are automatically canceled, except those intended to operate during
the war.

d.individuals are impressed with enemy character whenever:

1.under nationality test, if they are nationals of the other belligerent wherever they may be.

2.under domiciliary test, if they are domiciled aliens in the territory of the other belligerent on the
assumption that they contribute to its economic resources
3.under activities test, being foreigners, they participate in the hostilities in favor of the other
belligerent.

e.corporations/juridical persons where controlling stockholders are nationals of other belligerent are
considered enemies.

f.enemy property found in the territory of the other belligerent at the outbreak of war is subject to
confiscation, private property is subject to requisition (sequestration, private property at sea may be
confiscated, subject to certain exemptions).
Conduct of Hostilities (War & Belligerency):

1.Principle of Military Necessity

Belligerent may employ any amount of force to compel the complete submission of the enemy with
the least possible loss of lives, time and money. This justified the bombing of Hiroshima and
Nagasaki.

2.Principle of Humanity
Prohibits the use of any measure that is not absolutely necessary for the purposes of war, such as
the poisoning of wells, use of dumdum bells…

3.Principle of Chivalry
Prohibits the belligerents from the employment of perfidious or treacherous methods such as the
illegal use of Red cross emblems etc…

Suspension of Hostilities:

1.suspension of arms
Temporary cessation of hostilities by agreement of the local commanders for such purposes as
gathering of the wounded and burial of the dead.

2.armistice
Suspension of hostilities within a certain area or in the entire region of the war, agreed upon by the
belligerents, usually for the purpose of arranging the terms of the peace.

3.Cease-fire
Unconditional stoppage of all hostilities, usually ordered by an international body.

4.Truce
Conditional cease fire for political purposes

5.Capitulation
Surrender of military forces, places or districts, in accordance with rules of military honor.

Termination of War
1.Simple cessation of hostilities.
The principle of uti possidetis, with respect to property and territory possessed by the belligerents is
applied

2.Conclusion of a negotiated treaty of peace

3.Defeat of one of the belligerents followed by a dictated treaty of peace or annexation of

conquered territory.

War Crimes: acts for which soldiers or other individuals may be punished by the enemy on capture
of the offender.

War Criminal: any person who commits an act that violates a rule of international law governing
armed conflicts.

2006 notes: Philippines had the authority to try war criminals after World War 11 (Kuroda v
Jalandoni)
BELLIGERENCY

Temporary military occupation of the enemy’s territory during the war.

Effect: No change in sovereignty, but the exercise of the power of sovereignty is suspended. Political
laws, except the law on treason, are suspended. Municipal laws remain in force.

Rights and duties of belligerent occupant:

a. re-establish or continue the processes of orderly administration ,including the enactment of laws
b. adopt measures for the protection of the inhabitants
c. requisition (sequester) goods with proper cash or future payment in non-military projects.
(conscription is prohibited)
d. demand taxes and contributions to finance military and local administrative needs. Foraging:
actual taking of provisions for men and animals by the occupation of troops where lack of time
makes it inconvenient to obtain supplies by usual or ordinary methods. However, compensation
must be at the end of the war.
e. Issue legal currency
f. Use enemy property, whether public or private, but private property is subject to indemnification
or return at the end of the war.

Right of Angary:

Right of a belligerent state, in cases of extreme necessity, to destroy or use neutral property on its
own or on enemy territory or on the high seas.
Postliminium: revival or reversion to the old laws and sovereignty of territory which has been under
belligerent occupation once control of the belligerent occupant is lost over the territory affected.

2006 notes: it is differ from uti possidetis since latter allows retention of property or territory in
belligerent’s actual possession at time of cessation of hostilities.
Judicial acts during the Japanese occupation which were not of political complexion remain valid
even after the liberation of Philippines.

NON- HOSTILE INTERCOURSE

1.Flag of Truce

White in color, indicates the desire to communicate with the enemy.

The agent, called parlementaire, enjoys inviolability and is entrusted with the duty of negotiating
with the enemy.

2.Cartels

Agreements to regulate intercourse during the war, usually on the exchange of prisoners of war.

3.Passport

Written permission given by the belligerent government to the subjects of the enemy to travel
generally in belligerent territory

4.Safe-Conduct
Permission given to an enemy subject or to an enemy vessel allowing passage between defined
points

5.Safeguard

Protection granted by a commanding officer either to enemy persons or property within his
command, usually with an escort or convoy of soldiers providing the needed protection.

6.License to Trade

Permission given by competent authority to individuals to carry on trade though there is a state of
war.

2006 notes: Non-belligerency: use to describe the status of a state which did not take part in military
operations but which did not observe the duties of a neutral. This is a status mid-way between a
neutral and a belligerent, and is not recognized in international law.

NEUTRALITY

Non participation directly or indirectly in a war between contending belligerents. It exists only during
war and is governed by the law of nations
(while neutralization is the result of a treaty wherein the conditions of the status are agreed upon by
the neutralized state and other signatories. This exists both in times of war and in peace and
governed by the agreement entered into by and between the parties)

2006 notes: Absolute neutrality cannot exist among UN members.

Termination of Neutrality:

Terminates upon the conclusion of a treaty of peace between the belligerents, or when the neutral
state itself joins the war.

Footnote: the FF are exempted from Civil Service(Public Officers):

1.Presidential Appointees
2.Jail Guards
3.AFP
4.PNP (except SPO’s applicant)
5.Firemen
Rights and Duties of Neutrals

1.abstain from taking part in the hostilities and from giving assistance to either belligerent by: (1)
sending of troops, (2) official grant of loans, (3)carriage of contra-band.

a.contraband refers to goods which although neutral property, may be seized by a belligerent since
they are useful for war and are bound for a hostile destination.
Absolute-guns or ammunition which are useful in war
Conditional-food and clothing
Free list-medicines, exempt form law on contraband for humanitarian reasons.

b.Doctrine of Ultimate consumption:

goods intended for civilian use which may ultimately find their way to and be consumed by
belligerent forces may be seized on the way.

c.Doctrine of Infection
innocent goods shipped with contraband may also be seized.

d.Doctrine of Continuous voyage/transport

goods reloaded at an immediate port on the same vessel or reloaded on another vessel or other
form of transportation may also be seized on the basis of the doctrine of ultimate consumption.

e.Engaging in Unneutral service: acts of a more hostile character than carriage of contraband or
breach of blockade, undertaken by merchant vessels of a neutral state in aid of any of the
belligerent. (transport of individual passengers who are members of the armed forces of the enemy)

2.Prevent its territory and other resources from being used in the conduct of hostilities (ex:to be
used as a base)

3.To acquiesce to certain restrictions and limitations which the belligerents may find necessary to
impose such as:

a.blockade

hostile operation by means of which vessels and aircrafts of one belligerent prevent all other vessels
,including those of neutral states from leaving or entering the port or coasts of the other belligerent
,the purpose of being to shut off the place from international commerce and communications with
other states.

2006 notes:to be valid, blockade must be:

1.binding- duly communicated to neutral states
2.effective-maintained by adequate forces so as to make ingress and egress from the port
dangerous(limited only to the territory of the enemy and impartially applied to all states)

b.visit and search (authority of prize courts)

belligerent warships and aircraft have right to visit and search neutral merchant vessels to
determine whether they are in any way connected with the hostilities.
Vessels captured are considered as a prize but they may not be confiscated summarily, but brought
before a prize court (a tribunal established by a belligerent under its own laws applying international
law in absence of special municipal legislation)
NATIONALITY AND STATELESSNESS

NATIONALITY means Membership in a political community with its concomitant rights and duties.

The 1930 Hague Convention on Conflict of Nationality Laws states that determination of nationality:

a) It is for each State to determine under its own law who are its nationals. This law shall be
recognized by other States insofar as it is consistent with international conventions, international
customs, and the principles of law generally recognized with regard to nationality.
b) Any question as to whether a person possesses the nationality of a particular State shall be
determined in accordance with the law of that State.

The modes of acquiring nationality are:

a) Birth.
The two principles on acquisition of nationality by birth are: i) jus sanguinis, i.e., by blood; and ii) jus
soli, i.e., by place of birth.

b)Naturalization.
This mode may be accomplished through marriage, legitimation, option (election), acquisition of
domicile, appointment to government office, or grant on application. In the Philippines,
naturalization may be by judicial process, legislative process, election or marriage Moy Ya Lim Yao v.
Commissioner of Immigration, 41 SCRA 292)

However, there is no obligation on the part of the State of his nationality to recognize a person’s
newly acquired nationality. Municipal law may even prohibit the renunciation of one’s nationality
under certain circumstances, as in the application of the doctrine of indelible allegiance. An example
is Commonwealth Act No. 63 which provides that one of the modes of losing Philippine citizenship is
by subscribing to an oath of allegiance to support the Constitution or the laws of a foreign country,
but a Filipino may no divest himself of Philippine citizenship in this manner while the Republic of the
Philippines is at war with any country, see also Joyce v. Director of Public Prosecution, House of
Lords, December 18, 1945.

c)Repatriation.
Recovery of nationality by individuals who were natural born citizens of a State but who had lost
their nationality. Read Republic Act No. 8171, which governs repatriation of Filipino women who
have lost Filipino citizenship by reason of marriage to aliens, as well as the repatriation of former
natural-born Filipino who lost Filipino citizenship.
d) Subjugation.
e) Cession.

Loss of Nationality:

i) release, e.g., Germany gives its citizens the right to as for release from their nationality;

ii) deprivation, e.g., Philippines, which deprives its citizens of nationality upon entry into the military
service of another State [C.A. No. 63];

iii) renunciation, exemplified in C.A. No. 63; and iv) substitution, such as what happens when the
former nationality is lost ipso facto by naturalization abroad.

Multiple Nationality

“Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law” (Sec. 5.
Art. IV Philippine Constitution}

A person may find himself possessed of more than one nationality because of the concurrent
application to him of the municipal laws of two or more States claiming him as their national. This
may arise by the concurrent application of the principles of jus sanguinis and jus soli, naturalization
without renunciation of the original nationality, legitimation, or legislative action.

The 1930 Hague Convention on the Conflict of Nationality Laws provides the following solutions to
multiple nationality cases:

a) A person having two or more nationalities may be regarded as its national be each of the States
whose nationality he possesses, and a State may not give diplomatic protection to one of its
nationals against a State whose nationality that the person possesses.

b) If a person has more than one nationality, he shall, within a third State, be treated as if he had
only one; the third State shall recognize exclusively either the nationality of the State in which he is
habitually and principally resident, or the nationality o the State with which he appears in fact to be
most closely connected. This is known as the principle of effective nationality.
c) if a person, without any voluntary act of his own, possesses double nationality he may renounce
one of them with the permission of the State whose nationality he wishes to surrender and, subject
to the laws of the State connected, such permission shall no be refused if that person has his
habitual residence abroad.

STATELESSNESS.

The status of having no nationality, as a consequence of being born without any nationality or as a
result of deprivation or loss of nationality.

1. In 1954, under the auspices of the United Nations, twenty-two countries (including the
Philippines) concluded a Convention Relating to the Status of Stateless Persons, under which the
contracting States agreed to grant to stateless persons within their territories treatment at least as
favorable as that accorded to their nationals with respect to:
(a) freedom to practice their religion and freedom as regard the religious education of their children;
(b) access to the courts of law;
(c) rationing of products in short supply;
(d) elementary education;
(e) public relief and assistance;
(f) labor legislation and social security.

2. In that convention, the contracting States also agreed to accord stateless persons lawfully staying
in their territory treatment as favorable possible and, in any even, not less favorable than that
accorded to aliens generally in the same circumstances, relative to: (a) acquisition of movable and
immovable property;
(b) right of association in non political and non-profit making associations and trade unions;
(c) gainful employment and practice of liberal professions;
(d) housing and public education other than elementary education; (e) freedom of movement.

The consequences of statelessness are the following:

a. No State can intervene or complain I behalf of a stateless person for an international delinquency
committed by another State in inflicting injury upon him.

b. He cannot be expelled by the State if he is lawfully in its territory except on grounds of national
security or public order.

c. He cannot avail himself of the protection and benefits citizenship like securing for himself a
passport or visa and personal documents.

BAR MATTER June 12, 2007: In the Convention on the Conflict of Nationality Laws of 1930, the
Contracting States agreed to accord nationality to persons born in their territory who would
otherwise be stateless. The Convention on the Reduction of Statelessness of 1961 provides that if
the law of the contracting States results in the loss of nationality as a consequence of marriage or
termination of marriage, such loss must be conditional upon possession of acquisition of another
nationality.

BAR: At the Nuremberg trial of the Nazi war criminals at the end of the World War II, the defense
argued on behalf of the German defendants that although a nation could not wage aggressive war
without transgressing international law. It could use was as an instrument of self-defense, and that
the national itself must be the sole judge of whether its actions were in self-defense. How would
you meet the argument if you were a member of the Tribunal trying the case? (5%)

HELD: No rule of international law gives a state resorting to war allegedly in self-defense the right to
determine with a legally conclusive effect the legality of such action.

The Judgment of the Nuremberg International Military Tribunal rejected the defense of the Nazi war
criminals:“But whether action taken under the claim of self-defense was in fact aggressive or
defensive must ultimately be subject to investigation and adjudication if international law is ever to
be enforced.”

BAR : In a raid conducted by rebels in a Cambodian town, an American businessman who has been a
long time resident of the place was caught by the rebels and robbed of his cash and other valuable
personal belongings. Within minutes, two truckloads of government troops arrived prompting the
rebels to withdraw. Before fleeing they shot the American causing him physical injuries. Government
troopers immediately launched pursuit operation and killed several rebels. No cash or other valuable
property taken from the American businessman was recovered.

In an action for indemnity filed by the US Government in behalf of the businessman for injuries and
losses in cash and property, the Cambodian government contended that under International Law it
was not responsible for the acts of the rebels.

Is the contention of the Cambodian government correct? Yes, the contention of the Cambodian
Government is corrects. Unless it clearly appears that the government has failed to use promptly
and with appropriate force its constituted authority it cannot be held responsible for the acts of
rebels are not its agent and their acts were done without its volition. In this case, government
troopers immediately pursued the rebels and killed several of them.

Suppose the rebellion is successful and a new government gains control of the entire State.
Replacing the lawful government that was topped, may the new government be held responsible for
the injuries or losses suffered by the American businessman?

The new government may be held responsible if it succeeds in overthrowing the government.
Victorious rebel movements are responsible for the illegal acts of their forces during the course of
the rebellion. The acts of the rebels are imputable to them when they assumed as duly constituted
authorities of the state.

PUBLIC INTERNATIONAL LAW