PUBLIC AND INTERNATIONAL LAW Diplomatic immunity and Privileges: General rule: State has Sovereignty and jurisdiction

over all persons within its territory Exception: 1Representatives or agents of another state enjoy immunity in the host state. 2Ambassadors, diplomats, heads of mission, their families, members of the diplomatic staff and members of the household staff enjoy certain immunities from judicial proceedings. 3Residence of the ambassador and the diplomatic bag/pouch is immune from inspection by authorities in the host state. 4Crime in case a diplomat commits a crime, he cannot be prosecuted by the host state, but he can be declared persona non grata and the sending state can recall his mission in the host state. Application: Only in the performance of official functions, such that in case a crime is committed by the diplomat while he is on vacation, he will not enjoy immunity for such act. Criminal jurisdiction: Diplomatic agent is immune. Civil and administrative: Diplomatic agent is also immune except: 1Real action relating to private immovable property situated in the territory of the receiving state, unless he holds it in behalf of the sending state for the purpose of the mission. 2An action relating to succession in which the diplomatic agent is invoked as executor, administrator, heir or legatee as a private person and not on behalf of the sending state. 3An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. Belligerency 1 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.

Requirements according to the Hague Convention: 2that belligerency between states be preceded by an absolute declaration of war or 3an ultimatum prescribing the terms on which the issuing power will refrain from war United nations: legitimate wars 1Self defense 2Collective enforcement of the UN Charter United nations Organs and their functions: a)General assembly Composition: all members of the UN as of 1196: 185 members Function: any question or matter within the scope of the charter or relating to the powers and functions of any other organ. It is also vested with jurisdiction over matters concerning internal machinery and operations of the UN. GA resolutions have no binding effect on UN members except the fixing of the UN budget. They may constitute evidence of the existence of customary norms or constitute international norms b)Security Council Composition: 15 members 15 permanent members( China, France, UK, US, Russia) 210 non-permanent members elected for 2 years term by the general Assembly What is the Double veto? 1All non procedural matters, each permanent member is given a veto security council decision is ineffective if even one permanent member votes against it. The veto does not ordinarily apply to procedural matters. However, a permanent member may exercise a double veto when it vetoes any attempt to treat a question as procedural and then proceed to veto any draft resolution dealing with that question.

c.) Secretariat- chief administrative organ of UN d.) Economic and Social Council organ charged with promoting social progress and better standards of life in larger freedom. e.) Trusteeship Council organ charged with administration of Intl trusteeship system f.) International courts of justice Judicial organ of UN - has jurisdiction over contentious cases( disputes between states) and requests for advisory opinions that are made by competent UN organs Use of force. The UN Charter prohibits the use of force or threat against the political independence or territorial integrity of a state, or in any manner inconsistent with the purposes of the United nations ( art.2 ) ( Nicaragua vs. US decision of the ICJ) This rule is not absolute for it recognizes exceptions : such as those in preservation or self defense and enforcement of UN Charter. Conditions for the exercise of right of self defense. ( based on military and para military activities In and Against Nicaragua) 1.Armed attack must be of such scale as to amount to an actual armed attack by regular forces. 2.Necessity of use of force because of an armed attack 3.Proportionality of force applied to the danger faced a state. 4.Promptness between time of attack and the defensive use of force 5.In the case of collective self defense, for a state to assist another state, the state to be assisted must make a public declaration that it is under attack. Whether law always prevails over the treaty? Under the doctrine of incorporation, Article 2 section 2 of the Philippine constitution, they should be treated in equal footing. When they are in conflict, the rules to used in determining which one prevails, lex specialis generali derogate ( the special provision prevails over the general) and posterior priori derogate ( the latter law prevails over the earlier) both are under the constitution.

However, In Ichong vs. Hernandez, The court ruled that the provisions of the treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the state.

Further, in Gonzales vs. Hechanova, the court said with regard to the question whether an international agreement may be invalidated by our courts. The court upheld Supreme Courts power for judicial review of laws including treaties, ( Sec. 2 Art. 8). Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but also, when it runs counter to an act of congress. Jus congens. These are norms that are deemed to have a superior status in international law, such that they admit of no derogation. These peremptory or non derogable norms are contra distinguished from jus dispositivum, which states may derogate from or limit through their agreements. By contrast, when a treaty provision violates jus cogens norms, it would be void, and a subsisting treaty provision would be voided by the creation of a new peremptory norm. A provision would be voided by the creation of a new peremptory norm on the law of treaties arts. 53 and 64 Vienna Convention on the law of treaties. A Jus Cogens norm may be modified only by a subsequent norm of general international law having the same Jus Cojens character. Re extradition, attentat, political crimes: generally, alleged offenders may only be extradited for ordinary offenses, and a state may refuse to extradite a person when he is charged for a political offense. Political Offense is an act that is directed against a security of the state. The act may in itself a common crime, but it acquires a predominantly political character because of the circumstances and motivations under and for which it was committed. Requirements of a Political offense: The alleged act must have been. 1.an overt act 2.done in support of a political rising 3.which rising being connected with a dispute or struggle between two

groups in a state as to who could control the government. Exception to the political offense: Persons accused of political offenses may still be extradicted

4.If they are covered by attentat clauses. These are provisions in the extradition treaty that stipulate that an attempt against or taking of the life of a head of state or a member of his or her family does not constitute a political offense and is therefore extraditable. Or 5.If they are accused of offenses that are considered to be crimes against international law. They must be extraditable unless they can be effectively prosecuted in the state with custody ( war crimes, crimes vs. humanity, genocide, slavery, and torture) In Government of the US vs. Purganan, the SC said that: Extradition proceeding is SUI GENERIS, a class by itself, it is not a criminal proceeding wherein the constitutional rights of the accused are paramount. 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. Distinction between Criminal and Extradition proceedings: Criminal Proceedings: Extradition proceedings: -Full blown trial -Summary in nature -proof beyond reasonable doubt - allow admission of evidence in a les stringent standard -judgment becomes executory upon being -the President has discretion rendered final 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.

At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extradite, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings prior to the issuance of the warrant, the judge must not inform or notify the potential extradite of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings. There is no violation of Due process when the accused is detained prior to the conclusion of the extradition proceedings. The essence of due process is the opportunity to be heard, but this does not always call for a prior opportunity to be heard. Where the circumstances such as those present in an extradition case call for it, a subsequent opportunity to be heard is enough. There is no arbitrariness in the immediate arrest of the accused prior to his being heard, because these safeguards exist

1.The DOJs filing in court the petition with its supporting documents after a determination that the extradition requests meets the requirements of the law and the relevant treaty. 2.The extradition judges independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest, and 3.The accused has the opportunity, once he is under the courts custody, to apply for bail as an exception to the no-initial-bail rule. General rule: The right to bail is not available in extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Exception: After a potential extradite has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing 1.That, once granted bail, the applicant will not be a flight risk or a danger to the community, and 2.That there exists special, humanitarian and compelling circumstances including as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein.

Calvo Clause A provision usually made by governments in concession contract with aliens. The clause provides that the alien agrees not to seek diplomatic protection of his own state and submits matters arising from the contract to local jurisdiction. 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. Doctrine of Transformation

Under such doctrine, requires the principles of international law to be enacted as statutes or otherwise converted into municipal law before they can be considered binding on the state. Concept of the state

1) Elements of a state a) People b) Territory c) Government d) Sovereignty 2) Creation of States a) By revolution b) By Unification c) By Succession d) By Assertion of Independence e) By Agreement f) By Attainment of Civilization 3) Fundamental Rights of the State a) Existence and self defense b) Independence c) Equality d) Property and jurisdiction e) Legation or diplomatic intercourse

Principle of State Continuity It states that the state by another, the latter taking over the rights and some of the obligations of the former, it may either be: 1) Universal Takes place when a state is completely annexed by another or is dismembered or dissolved or is created as a result of the merger of 2 or more states. 2) Partial Takes place when a portion of the territory of a state is ceded or

secedes or when the state loses part of its sovereignty by joining a confederation or becoming a protectorate or suzerainty.