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July 26, 2017 | Author: jsmecayer | Category: Sovereign State, United Nations Security Council, United Nations, International Politics, Public International Law
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PUBLIC INTERNATIONAL LAW (CRUZ) |2014 BETIA| MENOR |REAMICO
PUBLIC INTERNATIONAL LAW CHAPTER 1 GENERAL PRINCIPLES
INTERNATIONAL LAW (IL) -
Traditional concept- a body of rules and principles of action which are binding upon civilized states in their relations with another. Schwarzenberger- is the body of legal rules which apply between sovereign states and such other entities as have been granted international personality.
established difference between international law and municipal law. MUNICIPAL LAW Issued by a political superior for observance by those under its authority Consists mainly of enactments from the law-making authority of each
DIVISIONS OF INTERNATIONAL LAW 1. Laws of peace- govern the normal relations of states. 2. Laws of war- when war breaks out between or among some of them, the relation of these states cease to be regulated under the laws of peace and come under the laws of war. 3. Laws of neutrality- those states not involved in the war continue to be regulated under the laws of peace in their relations inter se. however, their relations with the belligerents, or those involved in the war, are governed by the laws of neutrality.
Regulates the relations of individuals among themselves or with their own states Violations of the municipal law are redressed through local administration and judicial process
INTERNATIONAL LAW V. MUNICIPAL LAW 1. Monists- There is no substantial distinction between international law and municipal law because they believe in the oneness or unity of all law 2. Dualists- who believe in the dichotomy of the law, there are certain well
Breaches of municipal law generally entail only individual responsibility
INTERNATIONAL LAW Is not imposed upon but simply adopted by states as a common rule of action among themselves Derived not from any particular legislation but from sources as international custom, international conventions and the general principles of law Applies to the relations inter se of states and other international persons Questions of international law are resolved through state-tostate transactions ranging from peaceful methods like negotiations and arbitration to the hostile arbitrament of like reprisals and even war Responsibility of infraction of international law is usually collective in the sense that it attaches directly ot the state and not
to its nationals.
It is possible for a principle of municipal law to become part of international law, as when the principle is embodied in a treaty or convention. TWO THEORIES AS TO MANNER OF ADOPTING INTERNATIONAL LAW AS PART OF THE LAW OF THE LOCAL STATE 1. DOCTRINE OF INCORPORATION - International laws are adopted as part of a state's municipal law, by affirming their recognition of the principles of international law in their constitutions. 2. DOCTRINE OF TRANSPORMATION - Generally accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted by the law-making body and so transformed into municipal law. CRITERIA TO BE APPLIES IN RESOLVING CONFLICTS BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW -
To attempt to reconcile the apparent contradiction and thereby give effect, if possible, to both systems of law.
It should be presumed that municipal law is always enacted by each state with due respect for and never in defiance of the generally accepted principles of international law. CONSTITUTION V. TREATY Generally, the treaty is rejected in the local forum but is upheld by international tribunals as demandable obligation of the signatories under the maxim pacta sunt servanda.
The position of the Philippines regarding this matter is clear enough. There can be no doubt as to the meaning of our constitution when it authorizes the SC to decide, among others, all cases involving the constitutionality of "any treaty, international or executive agreement, law…" BASIS OF INTERNATIONAL LAW 1. Naturalist school of thought- there is a natural and universal principle of right and wrong, independent of any mutual intercourse or compact, which is supposed to be discovered and recognized by every individual through the use of his reason and his conscience. 2. Positivists- who that the binding force of international law is derived from the agreement of sovereign states to be bound by it. 3. Eclectics or Grotians- both the law of nature and the consent of states as the basis of international law. SANCTIONS OF INTERNATIONAL LAW 1. Belief shared by many states in the inherent reasonableness of international law and their common conviction that its observance will redound to the welfare of the whole society of nations. 2. But regardless of the intrinsic merit of the rules of international law, they may still be observed by states because of the normal habits of obedience ingrained in the nature of man as social being. 3. Respect for the world opinion held by most states, or their desire to project an agreeable public image in order to
maintain the goodwill and favourable regard of the rest of the family of nations. 4. The constant and reasonable fear, present even in the most powerful states, that violation of international law might visit upon the culprit the retaliation of other states. 5. There is the machinery of the UN which, within the sphere of its limited powers, has on many occasions proved to be an effective deterrent to international disputes caused be disregard of the law of nations. FUNCTIONS OF INTERNATIONAL LAW 1. To establish peace and order in the community of nations and to prevent the employment of force, including war, in all international relations 2. It strives as well to promote world friendship by levelling the barriers, as of color or creed, that have so far obstructed the fostering of a closer understanding in the family of nations. 3. To encourage and ensure greater international cooperation in the solution of certain common problems of a political, economic, cultural or humanitarian character 4. Aims to provide for the orderly management of the relations of states on the basis of the substantive rules they have agreed to observe as members of the international community. DISTINCTION WITH OHERS CONCEPTS 1. International morality or ethics- those principles which governs the relations of states from the higher standpoint of
conscience, morality, justice and humanity. 2. International comity- those rules of courtesy observed by states in their mutual relations, in that violations of its precepts are not regarded as constituting grounds for legal claims. 3. International diplomacy- relates to the objects of national or international policy and the conduct of foreign affairs or international relations. 4. International administrative law- that body of laws and regulations, now highly developed, created by the action of international conference or commissions which regulate the relations and activities of national and international agencies with respect to those material and intellectual interests which received an authoritative universal recognition.
CHAPTER 2 SOURCES OF INTERNATIONAL LAW
KINDS OF SOURCES 1. Primary/ direct sources a. Treaties/conventions, whether general or particular, establishing rules expressly recognized by the contesting states b. International customs- a practice which has grown up between states and has come to be accepted as binding the mere fact of persistent usage over a long period of time.
c. General principles of law recognized by civilized nations- the general principles of law are mostly derived from the law of nature and observed by the majority of states because they believed to be good and just. 2. Secondary/ indirect sources a. Decisions of courts- art 38 of the statute of ICJ does not distinguish between those rendered by international tribunals and those promulgated only by national courts b. Writing of publicists-must also be, to qualify as such, a fair and unbiased representation of international law, and by an acknowledged authority in the field.
NOTE: The doctrine of stare decisis is not applicable in international law, and so the decision of a subsequent case.
CHAPTER 3 THE INTERNATIONAL COMMUNITY
INTERNATIONAL COMMUNITY -
the body of juridical entities which are governed by law of nation. Modern concept- it is composed not only of states but also of such other international persons.
SUBJECT V. OBJECT
SUBJECT OF INTERNATIONAL LAW- is the entity that has rights and responsibilities under that law. It has an international personality in that it can directly assert rights and be held directly responsible under the law of nations. OBJECT OF THE INTERNATIONAL LAW- is the person or thing in respect of which rights are held and obligations assumed by the subject. STATES -
A group of people living together in a definite territory under the independent government organized for political ends and capable of entering into international relations.
ELEMENTS: 1. A permanent population- Human being living within its territory 2. Defined territory- fixed portion of the surface of the earth in which the people of the state reside 3. Government- agency through which the will of the state is formulated, expressed and realized. 4. Sovereignty or independence- external aspect or manifestation of sovereignty, that is, the power of the state to direct its own external affairs without interference or dictation from other states. CLASSIFICATION OF STATES INDEPENDENT STATES one which is not subject to dictation from others in this respect a. Simple States- one which is placed under a single and centralized
government exercising power over both its internal and external affairs b. Composites States- two or more states, each with its own separate government but bound under a central authority exercising, to a greater or less degree, control over their external relations. 1. Real union- created when two or more states are merged under a unified authority so that they form a single international person through which they act as one entity. 2. Federal union- is a combination of two or more sovereign states which upon merger cease to be states, resulting in the creation of a new state with full international personality to represent them in their external relations as well as a certain degree of power over their domestic affairs and their inhabitants. i.e. US 3. Confederationis an organization of states which retain their internal sovereignty and, to some degree, their external sovereignty, while delegating to the collective body power to represent them as a whole for certain limited and specified purposes. 4. Personal union- comes into being when two or more independent states are brought together under the rule of the same monarch, who nevertheless does not become one international persons for
the purpose of representing any or all of them. 5. Incorporate union- two or more states under a central authority empowered to direct both their external and internal affairs and possessed of a separate international personality. NEUTRALIZED STATES An independent state, whether it be simple or composite, may be neutralized through the agreement with other states by virtue of which the latter will guarantee its integrity and independence provided it refrains from taking any act that will involve it in war or other hostile activity except for defensive purposes. DEPENDENT STATES An entity which, although theoretically a state, does not have full freedom in the direction of its external affairs. It fall into two general categories: a. Protectorate- which is established at the request of the weaker state for the protection by string power b. Suzerainty- which is a result of a concession from a states to a former colony that is allowed to be independent subject to the retention by the former sovereign of certain power over the external affairs of the latter. UNITED NATIONS UN is not is state or a super state but a mere organization of states, it is regarded as an international person for certain purposes.
THE VATICAN CITY The holy see has all the constituent element of statehood ( people, territory: 108.7 acres; government with the pope as head; and independence by virtue of the Lateran Treaty of February 11,1929, which constitutes the Vatican as a territory under the sovereignty of the Holy See. It has all the right of a state, including diplomatic intercourse, immunity from foreign jurisdiction. COLONIES AND DEPENDENCIES A colony or a dependency is part and parcel of the parent state, through which all its external relations are transacted with other states. As such, therefore, it has no legal standing in the family of nations. Nevertheless, such entities have been allowed on occasion to participate in their own right in international undertaking and granted practically the status of a sovereign state. MANDATES AND TRUST TERRITORIES The system of mandates was established after the World War I in order to avoid outright annexation of the underdeveloped territories taken from the defeated powers and to place their administration under some forms of international supervision. Kinds of trust territories: 1. Those held under the mandate under the league of nations 2. Those territories detached from the defeated states after world war II 3. Those voluntarily placed under the system by the states responsible for their administration. BELLIGERENT COMMUNITIES
When a portion of the population rises up in arms against the legitimate government of the states. The upheaval is ordinarily regarded as a merely internal affair, at least during its initial stages. The state is held responsible for all injuries caused upon third states. For the purpose of the conflict, and pending determination of whether or not the belligerent community should fully recognized as a state, it is treated as an international persons and becomes directly subjects to the laws of war and neutrality. A inchoative state- it is vested with full rights of visitation, search and seizure of contraband articles on high seas, blockade and the like. INTERNATIONAL ADMINISTTATIVE BODIES Created by agreement among states may be vested with international personality when two conditions concur, to wit, that their purposes are mainly non-political and that they are autonomous. Examples: international labor organization, food and agricultural organization, world health organization INDIVIDUALS Individual only as an object of international law who can act only through the instrumentality of his own state in matters involving others states. CHAPTER 4 THE UNITED NATIONS Delegate of fifty nations met at the San Francisco conference from April 25, to June 26, 1945, and prepared and unanimously approved the charter of the United Nations. This came into force on October 24, 1945.
THE U.N. CHARTER -
Is a lengthy document consisting of 111 articles besides the preamble and the concluding provisions. May be considered a treaty because it derives its binding force from the agreement of the parties to it. Intended to apply not only to the members of the organizations but also to non-member states so far as may be necessary for the maintenance of international peace and security.
AMENDMENTS -
When they have been adopted by the vote of 2/3 of the members of the general assembly and ratified accordance with their respective constitutional processes by 2/3 of the members of the U.N., including all the permanent members of the Security Council. a GENERAL CONFERENCE may be called by majority vote of the general assembly and any nine members of the security council for the purpose of reviewing the charter. Amendments may be proposed by the vote of 2/3 of the members of the general assembly and ratified accordance with their respective constitutional processes by the 2/3 of the members of the U.N., including all the permanent members of the Security Council.
THE PREAMBLE OF THE CHARTER -
introduces the charter and sets the common intentions that moved the original members to unite their will and
efforts to purpose.
PRINCIPAL PURPOSES OF U.N. 1. to maintain international peace and security 2. to develop friendly relations among nations 3. to achieve international cooperation in solving international problems and in promoting and encouraging respect for human rights and fundamental freedoms. 4. To be a center for harmonizing the actions of nations in the attainment of these common ends PRINCIPLES 1. The organizations is based on the principles of the sovereign equality of all its members 2. All members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumes by them in accordance with the present charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations. 5. All Members shall give the United Nations very assistance in any action it takes in accordance with the present
Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. The Organization shall ensure that states which are not Members of the Unites Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. Nothing contained in the present Charter shall authorize the United nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principles shall not prejudice the application of enforcement measure under Chapter VII MEMBERSHIP KINDS: 1. Original- those states which, having participated in the U.N conference on international organization at San Francisco or having previously signed the declaration by U.N of January 1, 1942, signed and ratifies the charter of the U.N. 2. Elective The distinction between the two is based only on the manner of their admission and does not involve any difference in the enjoyment of rights or the discharge of obligations. QUALIFICATIONS: 1. It must be a state 2. It must be peace-loving
3. It must accept the obligations of the Charter 4. It must be able to carry out these obligations 5. It must be willing to carry out these obligations ADMISSION Decision of 2/3 of those present and voting in the general assembly upon the recommendation of at least nine (including all the permanent) members of the Security Council SUSPENSION Effected by 2/3 of those present and voting in the general assembly upon favourable recommendation of at least nine members of the Security Council including the permanent members The suspension may be lifted alone by the Security Council, also by a qualified majority vote. Suspended members will prevent it from participating in the meeting of the general assembly or from being elected to or continuing to serve in the Security Council, the economic and social council of the trusteeship council. National of the suspended members, may however, continue serving in the Secretariat and the ICJ as they regarded as international officials or civil servants acting for the Organization itself. EXPLUSION 2/3 vote of those present and voting in the general assembly, upon recommendation of a qualified majority of the security Council, on
grounds of persistently violating the principles contained in the Charter. WITHDRAWAL No provision on withdrawal from membership was includes in the Charter because of the fear that it might encourage successive withdrawals that would weaken the organization. A member might withdraw from the U.N if: 1. The organization was revealed to be unable to maintain peace or could do so only at the expense of law and justice 2. The member's right and obligations as such were changed by a charter amendment in which it had not concurred or which it finds itself unable to accept 3. An amendment duly accepted by the necessary majority either in the general assembly or in a general conference is not ratified. ORGANS OF THE UNITED STATES PRINCIPAL ORGANS 1. General assembly (G.A) Consists of all the members of the organization, each of which is entitled to send not more than 5 representatives and 5 alternates - Each member of the G.A has one vote Functions of the General Assembly a. Deliberative- initiating studies and making recommendations toward the progressive development of international law and its codification and recommending measure for the
peaceful adjustment of any situation b. Supervisory- receiving and considering annual and special reports from the other organs of the U.N c. Financial- the consideration and approval of the budget of the organization, the apportionment of expenses among its members and the approval of financial arrangements with specialized agencies. d. Elective- the election of nonpermanent members of the Security Council e. Constituent- admission of the members and the amendment of the Charter of the U.N 2. Security council - Key organ of the U.N in the maintenance of the internal peace and security council - 5 permanent members o China o France o United kingdom o Russia o United states - 10 elective members o 5 African and Asian states o 2 latin American states o 2 western European and other states o 1 eastern European states -
The non-permanent members are eligible for immediate re-election The permanent members were preferred position because of feeling that they were the states
NOT give the that
would be called upon to provide the leadership and physical force that might be needed to preserve the peace of the world The geographical distribution of nonpermanent members was a recognition of the relative importance of the affected in the maintenance of international order. Chairmanship- rotated every calendar month on a basis of English alphabet order of names YALTA FORMULA- devised at the crimea conference o Each member shall have one vote, but the distinction is made between the Big Five and the non-permanent members in the resolution of substantive questions o PROCEDURAL MATTERS are to be decided by the affirmative vote of any nine or more members. o NON-PROCEDURAL MATTERS require the concurrence of also at least nine members but included all the permanent members, but including the permanent members. o No members, permanent or not is allowed to vote on question concerning the pacific settlement of a dispute to which it is a party. PROCEDURAL MATTERS include questions relating to the organization and meeting of the security council, the establishment of subsidiary organs and the participation of states parties in disputes in the discussion of the organ.
NON-PROCEDURAL MATTERS are those that may require the security council under its responsibility of maintenance or resorting world peace to invoke measures of enforcement PERMENENT MEMBERS may cast a VETO an thereby prevent agreement on a non-procedural question even if it is supported by all the other members of the Security Council PERMENENT MEMBERS may also exercise the so called DOUBLE VETO, by means of which it can disapprove any proposal to consider a question merely procedural and thereafter vote against the question itself on the merits Abstention or absence of any permanent member in connection with a voting on a non-procedural question is not connection with a voting , and the proposal is deemed adopted if approved by at least nine members of the Security Council including the rest of the permanent members. Purpose of the YALTA FORMULA is to ensure the unity (?) of the permanent members in the measures to be taken in the pursuit of its primary function of maintaining international peace and security.
3. Economic and social council - Elected by G.A for 3 year terms and may be re-elected immediately - Each member has one vote and decisions are reached by a majority of those present and voting - Organs should exert efforts toward: o Higher standards of living, full employment, and conditions of economic and social progress and development
Solutions of international economic, social health and related problems and international, cultural and educational cooperation; and Universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex language or religion.
4. Trusteeship council - Charged with the duty of assisting the Security Council and the general assembly in the administration of the international trusteeship system. - Composed of : o The members of the U.N administering trust territories o The permanent members of the security council not administering tryst territories o As many other members elected for 3 year term by general assembly as may be necessary to ensure that the total number of members of the trusteeship council is equally divided between those members of the United Nations which administer trust territories and those which do not. - Each member has one vote and decisions are reached by a majority of those present and voting - Under its authority, it may: o Considered reports submitted by the administering authorities o Accept petitions and examine them in consultation with the administering authorities
Provide for periodic visits to trust territories at times agrees upon with the administering authorities o Take such other actions in conformity with the terms of the questionnaire on the political, economic, social and educational advancement of the inhabitant of the trust territories Trusteeship council is largely become obsolete with the conversion of practically all trust territories into fullfledged miniature states.
5. International court of justice - Judicial organ of the U.N which function in accordance with the statute. - Composed of 15 members who are elected by absolute majority in the G.A and the security council - The judges must: o be of high moral character o possess the qualifications required in their respective countries for appointment to their competence in international law - No two of them may be nationals of the same state and in the event that more than one national of the same state obtain the required majorities, only the eldest shall be considered elected - Members have a term of 9 years and may be re-elected. - No judge can be removed unless, in the unanimous opinion of the other members, he has ceased to fulfil the required conditions.
Court may elect its president and vice pres. Who shall serve for 3 years and may be re-elected -
6. Secretariat - Chief administrative organ of the U.N - Headed by SECRETARY GENERAL o Chose by the G.A upon recommendation of the security council o Fixed 5 years term by resolution of the G.A and may be reelected o Highest representative of the U.N and is authorized to act in itself o When acting in his capacity, he is entitles to full diplomatic immunities and privileges which only the security council may waive o The immunities and privileges of other key official of the united nation may be waived by the secretary general o His duty is to bring to the attention of the security council may matter which in his opinion may threaten international peace and security o Acts a s secretary in all the meetings of the G. A, the security council, the economic and social council and the trusteeship council and performs such other functions as may be assigned to him by these organs. o He prepares the budget of the U.N for submission to the G.A, provides technical facilities to be different organs of the
organization and in general coordinates its vast administrative machinery Secretary general and the members of his staff are internal officers solely responsible to the Organization and are prohibited from seeking or receiving instruction from any government or any authority external to the U.N
SECONDARY ORGANS- those which have been created by or in accordance with the charter such as the military staff committee, the international law commission and the commission on human rights. CHAPTER 5 THE CONCEPT OF THE STATE CREATION OF STATES -
By revolution By unification By secession By assertion of independence By agreement and attainment of civilization
EXTINCTION OF STATES -
By extinction or emigration en masse of its population By loss of territory By overthrow of government resulting in anarchy
PRINCIPLES OF STATE CONTINUITY -
The state continues as juristic being notwithstanding changes in its circumstances, provided only that they
do not result in loss of any of its essential elements. This principle applied in the sapphire case where, after Emperor Louis napoleon filed a damage suit on behalf of France in an American court, he was deposed. Nonetheless, the action was not abated and could continue upon recognition of the duly authorized representative of the new government of France.
SUCCESSION OF STATES -
Takes place when one state assumes the rights and some of the obligations of another because of certain changes in the condition of the latter. May be either: o Universal succession -when a state is annexed to another state or is totally dismembered or merges with another state to form a new state o Partial succession- take place when a portion of the territory of the states or is ceded to another or when an independent state becomes a protectorate or a suzerainty or when a dependent state acquires full sovereignty.
SUCCESSION OF GOVERNMENT -
CONSEQUENCES OF STATE SUCCESSION -
Allegiance of the inhabitants of the predecessor state in the territory affected is transferred to the successor state. They are also naturalized en masse Political law of the former are automatically abrogated and may be restored only by a positive act on the
part of the new sovereign. But nonpolitical laws, such as those dealing with familiar relations, are deemed continued unless they are changed by the new sovereign or are contrary to the institution of the successor state. Treaties of a political and even commercial nature, as well as treaties of extradition, are also discontinued, except those dealing with local rights and duties, such as those establishing easement and servitudes. All the rights of the predecessor state are inherited by the successor state but this is not so where liabilities are concerned.
Where the government replaces another either peacefully or by violent methods. In both instances, the integrity of the state is not affected; the state continues as the same international person except only that its lawful representative is changed. The rights of the predecessor government are concerned; they are inherited in too by the successor government. Where the new government was organized by virtue of a constitutional reform duly ratified in plebiscite, the obligations of the replaced government are completely by the former. Where the new government was established through violence as by a revolution, it may lawfully reject the purely personal or political obligations of the predecessor government but not
contracted by it in the ordinary course of official business.
CHAPTER 6 RECOGNITION
BASIC RULES IN RECOGNITION OS STATES -
It is political act and mainly a matter of policy on the part of each state. it is discretionary on the part of the recognizing authority. it is exercised by the political (executive) department of the state. The legality and wisdom of recognition is not subject to judicial review.
THEORIES ON RECOGNITION 1. Declaratory (majority view) - merely affirms the pre-existing fact that the entity being recognized already possess the status of an international persons. - Political and discretionary 2. Constitutive (minority view) - It is last indispensable element that converts or constitutes the entity being recognized into an international person. - Mandatory and legal OBJECTS OF RECOGNITION 1. Recognition of a state- held irrevocable and imports the recognition of the government 2. Recognition of a government- may be withdrawn and does not necessary signify the existence of a state as the
government may be that of a mere colony. 3. Recognition of belligerency- does not produce the same effect as the recognition of states and government because the rebels are accorded international personality only in connection with the hostilities they are waging. KIND OF RECOGNITION 1. Express- may be verbal or in writing. It may be extended through a formal proclamation or announcement, a stipulation in a treaty, a letter or telegram, or on the occasion of an official call or conference. 2. Implied- when the recognizing state enters into officials intercourse with the new member by exchanging diplomatic representatives with it. The act constituting recognition shall give a clear indication of an intention: 1. To treat with the new state as such 2. To accept the new government as having authority to represent the state it purports to govern and to maintain diplomatic relations with it 3. To recognize in the case of insurgent that they are entitled to exercise belligerent rights RECOGNITION OF STATES -
held irrevocable and imports the recognition of the government
EFFECTS OF THE RECOGNITION OF THE STATE AND GOVERNMENT
1. full diplomatic relations are established except where the government 2. the recognized state or government acquire the right to sue in courts of recognizing state 3. the recognized state or government has a right to possession of properties of predecessor in the territory of 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 RECOGNITION OF A STATE RECOGNITION OF GOVERNMENT -
recognition of the state carries with it recognition of the government recognition states is irrevocable
RECOGNITION OF GOVERNMENT -
may be withdrawn and does not necessary signify the existence of a state as the government may be that of a mere colony.
REQUISITES: 1. government is stable and effective (objective test) 2. no substantial resistance to its authority 3. the government must show willingness and ability to discharge its international obligations (subjective test) 4. government must enjoy popular consent or approval of the people.
KINDS OF THE DE FACTO GOVERNMENT
1. That which is established by the inhabitants who rise in revolt against and depose the legitimate regime. 2. That which is established in the course of war by the invading forces of one belligerent in the territory of the other belligerent, the government of which is also displaced. 3. That which is established by the inhabitants of a state who secede therefrom without overthrowing its government. LANDMARK CASE DOCTRINE 1. WILSON/ TOBAR DOCTRINE - This precludes recognition of the government established by revolution, civil war, coup d'etat or other form of internal violence until the freely elected representatives of the people have recognized a constitutional government 2. KELSEN DOCTRINE - A states violates international law and thus infringes upon the rights of other states if it recognizes as a state a community which does not fulfil the requirements of international law 3. BETANCOURT DOCTRINE - This came as a reflection of Venezuelan president Romulo Betancourt's antipathy for non-democratic rule, which denied diplomatic recognition to any regime, right or left, which came to power by military force. 4. LAUTERPACHT DOCTRINE - It is the recognition of an entity which is not legally a state is wrong because it constitutes as abuse of the power of
recognition. It acknowledges a community which is not in law, independent and which does not therefore fulfil the essential conditions of statehood as an independent state. It is, accordingly, a recognition which an international tribunal declare not only to constitute a wrong but probably also to be itself invalid. 5. STIMSON DOCTRINE - This precludes recognition of any government established as a result of external aggression 6. ESTRADA DOCTRINE - This refers to dealing or not dealing with the government established through a political upheaval is not a judgement on the legitimacy of the said government.
RECOGNITION DE JURE Relatively permanent Vests title in the government to its properties abroad Brings about full diplomatic relations
RECOGNITION DE FACTO Provisional Does NOT vests title in the government to its properties abroad Limited to certain juridical relations
EFFECTS OF THE RECOGNITION OF THE STATE AND GOVERNMENT 1. full diplomatic relations are established except where the government 2. the recognized state or government acquire the right to sue in courts of recognizing state 3. the recognized state or government has a right to possession of properties of
predecessor in the territory of 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 RCOGNITION OF BELLIGERENCY -
Does not produce the same effect as the recognition of states and government because the rebels are accorded international personality only in connection with the hostilities they are waging.
CONDITION FOR 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 conflict between the legitimate government and the rebels must be serious, making the outcome uncertain. 4. The rebels must be willing and able to observe the laws of war. EFFECTS OF RECOGNITION OF BELLIGERENCY 1. Responsibility for acts of rebels resulting to injury to nationals 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; 4. Recognition is only provisional and only for purposes of hostilities.
CHAPTER 7 THE RIGHT OF EXISTENCE AND SELF-DEFENSE  Once a state comes into being. It is invested with certain rights described as fundamental.  Most important of these rights: o Right of existence o Self-defence *It is important because all its other rights are supposed to flow or be derived from it.  The presence of an "Armed Attack" to justify the exercise of the right of selfdefence may be taken by a state only in the face of a necessity of self-defense that is instant, overwhelming and leaving no choice of means and no moment for deliberation  Right may be resorted only upon clean showing of a grave and actual danger to the security of the state  "The best defense is offense" – Grotius  One might well argue now that the very state of armed preparedness of a nuclear power is per se a potent, if latent. THE CUBAN MISSILE CRISIS  "The peace of the world and the security of the US (had been) endangered by reason of the establishment by the Sino-Soviet powers of an OFFENSIVE MILITARY CAPABILITY in Cuba, including bases for ballistic missiles with a potential range covering most of North and South America. REGIONAL ARRANGEMENTS
 Nothing in the present charter precludes the existence of regional arrangements. REGIONAL ARRANGEMENTS – Agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action.  Example of Regional Agency: Organization of American States – Whose organ of consultation authorized or ratified the action taken by the US. THE BALANCE OF POWER  One reason for the organization of regional arrangements is to provide for the balance of power  An arrangement of affair so that no state shall be in a position to have absolute mastery and dominion over others. – Vattel AGGRESSION – Use of armed force by a state against:  Sovereignty  Territorial Integrity  Political independence of other state  First use of armed forces shall constitute prima facie evidence of aggression QUALIFY AS AN ACT OF AGGRESSION 1. Invasion/attack by armed forces of a state of the territory of another state 2. Bombardment of armed forces 3. The blockade of parts/coasts of a state by the armed forces of another state 4. Attack of sea, air forces, land etc.
5. Use of armed forces within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement 6. The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a 3rd state 7. The sending by or on behalf of a State of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
CHAPTER 8 THE RIGHT OF INDEPENDENCE SOVEREIGNTY
External sovereignty is more often referred to as independence.
NATURE OF INDEPENDENCE  Freedom from control by any other state or group of states and not freedom from the restrictions that are binding on all states forming the family of nations.  Must submit to limitations, independence of a state is of necessity restricted. INTERVENTION  State must abstain from intervention. It expects its independence to be respected by other states, so too must it be prepared to respect their own independence.  Rights of independence carries with it duty of non-intervention.
Supreme, uncontrollable power inherent in a state, the supreme power of the state to command and enforce obedience
2 INSTANCES WHEN THE USE OF FORCE IS ALLOWED UNDER THE CHARTER OF THE UN:
 Enables the state to make its own decision vis-à-vis other states and vests it with competence to enter into relation and agreements with them.
1. When such action is agreed upon in a treaty 2. When requested from sister states or from the UN
2 ASPECTS 1. INTERNAL SOVEREIGNTY – Power of the state to direct its domestic affairs 2. EXTERNAL SOVEREIGNTY – The freedom of the state to control its own foreign affairs.
 Recent events have called for a reexamination of the law on intervention, especially where intervention is based on humanitarian grounds  Revolted by the inhumane plight of the innocent victims, the UN sent a contingent of military troops from several countries, primarily the US.
THE DRAGO DOCTRINE  The contracting powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its nationals.
CHAPTER 9: THE RIGHT OF EQUALITY  Art. 2 of Charter of the UN: "The organization is based on the principle of the sovereign equality of all its members.  States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law. ESSENCE OF EQUALITY  Does not signify parity in physical power, political influence or economic status or prestige  Equality does not even require equality in the number of rights  All the rights of a State, regardless of their number, must be observed and respected  All States, big or small have an equal right to the enjoyment of all their respective attributes as members of the family of nations  All members of UN have each one vote in the General Assembly, all votes having equal weight and are generally eligible for positions in the various organs of the UN
 "Par in parem non habet imperium" – Even the strongest state cannot assume jurisdiction over another state, no matter how weak etc.. LEGAL EQUALITY VS. FACTUAL INEQUALITY  Not all states have equal eligibility with regard to elective membership of the Security Council  5 of them must be elected from the African and Asian states and only 1 can come from the Eastern European State.  In General Assembly, all members have on vote regardless of the number of people they separately represent. CHAPTER 9 THE RIGHT OF EQUALITY  Art. 2 of Charter of the UN "The organization is based on the principle of the sovereign equality of all its members  States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law. ESSENCE OF EQUALITY  Does not signify parity in physical power, political influence or economics status or prestige  Equality does not even require equality in the number of rights.  PRINCIPLE: All the rights of a state, regardless of their number, must be observed and respected
 All states, big or small have an equal right to the enjoyment of all their respective attributes as members of the family of nations.  All members of UN have each one vote in the General Assembly, all votes having equal weight, and are generally eligible for positions in the various organs of the UN  "Par in paren non habet imperium" – even the strongest state cannot assume jurisdiction over another state, no matter how wake etc.. LEGAL EQUALITY VS. FACTUAL INEQUALITY  Not all states have equal eligibility with regard to elective membership of the Security Council  5 of them must be elected from the African and Asian states and only 1 can come from the Eastern European State.
territories through any of the methods permitted under the law of nations. ACQUISITION AND LOSS OF TERRITORY Territory may be acquired by:      
Discovery Occupation Subjugation Prescription Cession Accretion
Territory may be lost by:        
Abandonment Dereliction Cession Revolution Subjugation Prescription Erosion Natural causes
DISCOVERY AND OCCUPATION CHAPTER 10 TERRITORY TERRITORY – Fixed portion of the surface of the earth inhabited by the people of the state.  Must be permanent and indicated with precision  Big enough to provide for the needs of the population but not be so extensive as to be difficult to administer/defend from external aggression.  The Philippines is committed to the renunciation of the war for territorial aggrandizement but like other states, is not precluded from acquiring additional
 Original mode of the acquisition by which territory not belonging to any state is placed under the sovereignty of the discovering state.  Territory need not be to be uninhabited provided it can be established that the natives are not sufficient civilized and can be considered as possessing not rights of sovereignty but only rights of habitation  Open seas and outer space are not susceptible to discovery and occupation. 2 REQUISITES OF A VALID DISCOVERY AND OCCUPATION 1. Possession
2. Administration  Possession must be claimed on behalf of the state. Be effected through a formal proclamation and the symbolic act of raising the national flag in the territory.  Mere possession will not suffice INCHOATE TITLE OF DISCOVERY  Performs the function of barring other states from entering the territory until the lapse of a period within which the discovering state may establish as settlement thereon and commence to administer it. ISLAND OF PALMAS CASE  Discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty of Island of Palmas.  An inchoate title could not prevail over the continuous and peaceful display of authority by another state for such display may prevail even over a prior, definitive title put forward by another state. CLIPPERTONE ISLAND CASE  Title was deemed acquired by France over an island it had formally claimed but had never administered. He proclaimed and declared that the sovereignty of the said island beginning from that date belonged in perpetuity to his majesty.  If a territory, by virtue of the fact that it was completely uninhabited, from the first moment when the occupying state makes its appearance there, at the
absolute and undisputed possession of that State, from that moment the taking of possession is considered accomplished and the occupation is formally completed. DERELICTION – Territory is lost by dereliction when the state exercising sovereignty over it physically withdraws from it with the intention of abandoning it altogether.  conditions must concur: 1. Acts of withdrawal 2. Intention to abandon
PRESCRIPTION – Prescription in international law requires long continued and adverse possession to vest acquisitive title in the claimant. CESSION – Method by which territory is transferred from one state to another by agreement between them. Acquisition of territory by cession is usually effected by such familiar transactions as sale, donation, barter or exchange, and even by testamentary disposition.  Examples are the purchase by the US of Alaska from Russia in 1867, the gift by Austria of Lombardy to France in 1859 SUBJUGATION – Territory is deemed acquired by subjugation when, having been previously conquered or occupied in the course of war by the enemy, it is formally annexed to it at the end of that war.  Conquest alone confers only an inchoate right on the occupying state; it is the formal act of annexation that completes the acquisition.
ACCRETION – Mode of acquiring territory based on the principle of accession cedat principali. It is 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, more effectively, by reclamation projects like those undertaken in Manila Bat and the polders of Holland. COMPONENT OF TERRITORY 1. 2. 3. 4.
Terrestrial domain Maritime domain Fluvial domain Aerial domain
THE TERRESTRIAL DOMAIN  Land mass THE MARITIME AND FLUVIAL DOMAIN  Bodies of water within the land mass and the waters adjacent to the coasts of the state up to a specified limit. RIVERS MAY BE CLASSIFIED INTO: 1. National Rivers – situated completely in the territory of one state 2. Multi-national Rivers – Flow through the territories of several states 3. International Rivers – is navigable from the open sea and is open to the use of vessels from all states 4. Boundary Rivers – divided the territories of the riparian states THALWEG DOCTRINE – In the absence of a specific agreement between such states, the boundary line is laid on the river. That is, on the center, not of the river itself, but of its main channel.
BAYS – Well-marked indentation whose penetration is in such proportion to the width of its mouth as t contain land-locked waters and constitute more than a mere curvature of the coast. THE TERRITORIAL SEA – Belt of waters adjacent to the coasts of the state, excluding the internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction THE UN Conference on the Law of the Sea  3 international conferences have been called to formulate a new of the sea.  The 1st conference was held in 1958 at Geneva, Switzerland, and resulted in the adoption of the Convention on the Territorial Sea and the Contiguous Zone, the Convention on the High Seas, and the Convention on the Fishing and the Living Resources of the High Seas, and the Convention on the Continental Shelf.  The new Convention provides among others for a uniform breadth of 12 miles for the territorial sea, a contiguous zone of 12 miles from the outer limits of the territorial sea, and an economic zone or patrimonial sea extending 200 miles from the lowwater mark of the coastal state. THE PHILIPPINE TERRITORIAL SEA  The claim of the Philippines to its territorial sea was based on historic right or title or as it often called, the TREATY LIMITS THEORY.  The new Convention on the Law of the Sea now limits our territorial sea 12 miles from the low water mark of our coasts, as in the case of other states.
METHODS OF DEFINING THE TERRITORIAL SEA 1. NORMAL BASELINE METHOD – The territorial sea is simply drawn from the low-water mark of the coast, to the breadth claimed, following its sinuosities and curvatures but excluding the internal waters in bays and gulfs. 2. STRAIGHT BASELINE METHOD – Straight lines are made to connect appropriate points on the coast without departing radically from its general direction. FISHERIES CASE  United Kingdom questioned the use by Norway of the straight baseline method defining its territorial waters. THE AERIAL DOMAIN  The airspace above the terrestrial domain and the maritime and fluvial domain of the state, to an unlimited altitude but not including outer space.
CHAPTER 11 JURISDICTION JURISDICTION – Authority exercised by a state over persons and things within or sometimes outside its territory, subject to certain exceptions. JURISDICTION IS CLASSIFIED AS: 1. Personal 2. Territorial JURISDICTION MAY BE EXERCISED BY A STATE OVER: 1. Its nationals
2. 3. 4. 5. 6. 7. 8.
Terrestrial domain Maritime and fluvial domain Continental shelf Open seas Aerial domain Outer space Other territories
PERSONAL JURISDICTION – Power exercised by a state over its nationals. Based on theory that a national is entitled to the protection of his state wherever he may be and is (Doctrine of indelible allegiance) JOYCE VS. DIRECTOR OF PUBLIC PROSECTION  Defendant Lord HawHaw, challenged his conviction in Great Britain for high treason, contending that he was not a British subject. It appeared that he had lived in the country for 18 years and misrepresented himself as its national for the purpose of obtaining a British passport that enabled him to go to Germany where he was broadcast antiAllied propaganda. o Although not a British subject, he has by his own act maintained the bond which while he was within the realm bound him to his Sovereign TERRITORIAL JURISDICTION Gen. Rule: state has jurisdiction over all persons and property within its territory STATE CANNOT EXERCISE JURISDICTION EVEN WITHIN ITS OWN TERRITORY OVER: 1. Foreign states, heads of states, diplomatic representatives, and consuls to a certain degree.
2. Foreign state property: embassies, consulates, and public vessels engaged in non-commercial activities 3. Acts of state o UNDERHILL VS. HERNANDEZ – "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 within its own territory." 4. Foreign merchant vessels exercising the rights of innocent passage or arrival under stress. o INNOCENT PASSAGE – Navigation through the territorial sea of a state for the purpose of traversing that sea w/o entering internal waters etc. as long as it is not prejudicial to the peace, good order or security of the coastal sea. o ARRIVAL UNDER STRESS – Involuntary entrance may be due to lack of provisions, unseaworthiness of the vessel, inclement weather, or other cases of force majeure, like pursuit by pirates. 5. Foreign armies passing through or stationed in its territories with its permission. 6. Such other persons or property, including organizations like the UN, by agreement, waive jurisdiction. LAND JURSIDICTION
 Everything found within the terrestrial domain of the state is under its jurisdiction.  Nationals and aliens, including nonresidents, are bound by its laws.  The local state has exclusive title to all property within its territory. MARITIME AND FLUVIAL JURISDICTION  Internal waters of a state are assimilated to the land mass and subjected to the same degree of jurisdiction exercised over the terrestrial domain.  Civil, criminal and administrative jurisdiction is exercised by the flag state over its public vessels wherever they may be, provided they are not engaged in commerce. THE SCHOONER EXCHANGE VS. MCFADDON  "National ships of war entering the port of a friendly power open for their reception are to be considered as exempted by the consent of that power from its jurisdiction" ENGLISH RULE – The coastal state shall have jurisdiction over all offenses committed on board such vessels, except only where they do not compromise the peace of the port. FRENCH RULE – Flag state shall have jurisdiction over all offenses committed on board such vessels, except only where the compromise the peace of the port. ANTONI CASE  "Murder of a Frenchman by another Frenchman on board a French merchant
vessel in a Mexican port did not disturb the peace of the port." WINDENHUS CASE  "The murder of a Belgian by another Belgian on board a Belgian merchant steamer in the port of New Jersey was of such a nature as " to disturb tranquillity and public order on shore or in the port""  Our own SC has held that the English rule is applicable in this country.  It is the right of the coastal state to enforce all its laws to the full extent in its territorial waters.
U.S.S. PUEBLO INCIDENT – "An American vessel was seized and its crew interned by North Korea for alleged infringement of its territorial waters." ARCHIPELAGIC SEALANES – Waters over which foreign ships will have the right of passage as if they were open seas. A foreign vessel need not go around our internal waters but may use these archipelagic sea lanes in negotiating the distance from one point of the open sea to another. THE CONTIGUOUS ZONE  In a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the control to: a) prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea. B) Punish infringement of the above
regulations within its territory or territorial sea.  Contiguous zone ,may not, however, extend more than 12 miles from the coast of the state  1982 CONVENTION ON THE LAW OD THE SEA –Contiguous zone also extends 12 miles, but from the outer limits of the territorial sea. THE CONTINENTAL SHELF a) To the seabed and subsoil of similar areas adjacent to the coasts if islands  The coastal state has the sovereign right to explore the continental shelf and to exploit its natural resources.  It may erect on it such installations and equipment as may be necessary. THE PATRIMONIAL SEA  The exclusive economic zone or the patrimonial sea extends 200 nautical miles from the coast or the baselines. All living and non-living resources found therein belong exclusively to the coastal state. OPEN SEAS  Available to the use of all states for purposes of navigation, flying over them, laying submarine cables or fishing. In times of war, hostilities may be waged on the open seas. THE LOTUS CASE A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The BozKourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with
manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment and a fine. The French government protested, demanding the release of Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ). HELD: The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its jurisdiction outside its territory unless it an international treaty or customary law permits it to do so. This is what we called the first Lotus Principle.
A STATE MAY EXERCISE JURISDICTION ON THE OPEN SEAS IN THE FOLLOWING INSTANCES: 1. Over its vessels 2. Over pirates 3. In the exercise of the right of visit and search 4. Under the doctrine of hot suits AERIAL JURISDICTION  The consensus appears to be that the local state has jurisdiction over the airspace above it to an unlimited height, or at the most up to where outer space begins. 5 AIR FREEDOMS 1. The freedom to fly across foreign territory without landing 2. The freedom to land for non-traffic purposes 3. The freedom to put down traffic originating in the state of the aircraft 4. The freedom to embark traffic destined for the state of the aircraft 5. The freedom to embark traffic destined for or to put down traffic originating in a 3rd state.
CONVENTION ON OFFENSES AND CERTAIN OTHER ACTS COMMITTED ON BOARD AIRCRAFT – It is the state of registration of the aircraft that has jurisdiction over offenses and acts committed on board while it is in flight or over the high seas or any other area outside the territory of any state OUTER SPACE  Outer space, or the region beyond the earth's atmosphere, is not subject to the jurisdiction of any state.  Outer space shall be free for exploration and use by all states without discrimination of any kind.  Astronauts shall be regarded as envoys of mankind. CHAPTER 12 THE RIGHT OF LEGATION THE EXERCISE OF THE RIGHT OF LEGATION  One of the most effective ways of facilitating and promoting intercourse among states.  Done through active right of receiving them, states are able to deal more directly and closely with each other in the improvement of the mutual interests. AGENTS OF DIPLOMATIC INTERCOURSE  Diplomatic relations are normally conducted through the head of state, the foreign secretary or minister and the members of the diplomatic service.  Head of state may also appoint special diplomatic agents charged with specific ceremonial or political duties.
ENVOY CEREMONIAL – Sent to attend state functions like a coronation or a jubilee ENVOY POLITICAL – Commissioned to negotiate with a particular state or to participate in an international conference or congress. HEAD OF STATE  Represents the sovereignty of his state  He is entitled to certain immunities and honours befitting his status MIGHELL VS. SULTAN OF JOHORE – "Suit was brought for breach of a promise to marry allegedly made by the defendant we had represented himself as a private individual. The action was dismissed when he revealed his real identity as head of an independent state." THE FOREIGN SECRETARY  Immediate representative of the head of state and directly under his control.  He can make binding declarations on behalf of his state on any matter falling within his authority  The foreign secretary is also the head of the foreign office and has direction of all ambassadors and other diplomatic representatives of his government.
CONVENTION ON DIPLOMATIC RELATIONS, WHICH WAS SIGNED AT VIENNA IN 1961: 1. Ambassadors 2. Envoys 3. Charges d'affaires DIPLOMATIC CORPS – Body consisting of the different diplomatic representatives who have been accredited to the same local receiving state. The diplomatic corps does not possess any legal powers or attributes. Functions of Diplomatic Missions: 1. Representing sending state in receiving state 2. Protecting in receiving state interests of sending state 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 lawful means conditions and developments in receiving state and reporting thereon to government of sending state 6. In some cases, representing governments at their request
DIPLOMATIC ENVOYS  To whom the regular or day-to-day conduct of international affairs is entrusted.  Who are accredited by the sending state as its permanent envoys to represent it in the states with which it is maintaining diplomatic relations THE HEADS OF THESE DIPLOMATIC MISSIONS ARE CLASSIFIED AS FOLLOWS BY THE
CONDUCT OF DIPLOMATIC MISSION  The diplomatic agent must exercise the utmost discretion and tact, taking care always to preserve the goodwill of the sending state and to avoid interference with its internal affairs.  His mission is also under no circumstance to be used for espionage, the dissemination of propaganda against the receiving state, or subversion of its government.
DIPLOMATIC IMMUNITIES AND PRIVILEGES  His privileges and immunities are necessary to give the envoy the fullest freedom or latitude in the exercise of his official functions. PERSONAL INVIOLABILITY  The envoy is regarded as sacrosanct and is entitled to the special protection of his person, honor and liberty.  DIPLOMATIC CONVENTION: "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity"  The envoy cannot complain if he is injured because he himself caused the initial aggression.  The local authorities may also, in exceptional cases, lay hands on him if he has committed an act of violence and it is necessary to place him in preventive restraint.
IMMUNITY FROM JURISDICTION  Diplomatic agent shall be immune from the civil, criminal and administrative jurisdiction of the receiving state except in a few specified cases. HE SHALL ALSO ENJOY IMMUNITY FROM ITS CIVIL AND ADMINISTRATIVE JURISDICTION, EXCEPT IN THE CASE OF: a. A real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission.
b. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state. c. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.  Immunity from jurisdiction may be waived expressly by the sending state WHO VS. AQUINO Diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting under his direction. INVIOLABILITY OF DIPLOMATIC PREMISES  The premises of the mission shall be inviolable. The agents of the receiving state may not enter them except with the consent of the head of mission. INVIOLABILITY OF ARCHIVES  The receiving state has no right to pry into the official papers and records of a foreign diplomatic mission.  "the archives and documents of the mission shall be inviolable at any time and wherever they may be" INVIOLABILITY OF COMMUNICATION
 "The receiving state shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the government and other missions and consulates of the sending state, wherever situated, the mission may employ all appropriate means including diplomatic couriers and messages in code or cipher." EXEMPTION FROM TESTIMONIAL DUTIES  "A diplomatic agent is not obliged to give evidence as a witness"  He is not prohibited by international law from doing so and may waive this privilege when authorized by his government.  The Dutch envoy to Washington invoked this right 1856 when he rejected a request to testify in connection with a homicide committed in his presence and for the prosecution of which his testimony we necessary. EXEMPTIONS FROM TAXATION  Also from social security requirements under certain conditions.  Personal baggage is also free from inspection unless there are serious ground THE DIPLOMATIC SUITE OR RETINUE  Immunities and privileges are available not only to the head of mission and his family but also to the other members of the diplomatic retinue, albeit not in the same degree. DURATION
 Every person entitled to diplomatic privileges and immunities shall enjoy them from the moment he enters the territory of the receiving state on proceeding to take up his post or, if already there, from the moment his appointment is notified to the foreign ministry.  When his functions have to come to an end, his privileges and immunities shall normally cease from moment he leaves the country or on expiry of a reasonable time in which to do so, but shall subsist until such time even in case of armed conflict.  In the exercise of his official functions, immunity shall continue indefinitely as it is supposed to have attached to him personally but to the state he was representing TERMINATION OF DIPLOMATIC MISSION  Usual methods of terminating official relations: death, resignation, removal, abolition of the office, etc. these are governed by municipal law.  The more important modes are RECALL and DISMISSAL RECALL – May demanded by the receiving state when the foreign diplomat becomes persona non grata to it for any person. DISMISSAL – The offending diplomat is simply asked to leave the country.  The outbreak of war between the sending and receiving states terminates their diplomatic relations.  As for the change of the govt., diplomatic relations are not disturbed if the change is peaceful but may be
suspended where it is effected by means of violence CHAPTER 13 CONSULS *CONSULS – state agents residing abroad for various purposes but mainly in the interest of COMMERCE and NAVIGATION *Consuls are not charged with the duty of representing their states in political matters nor are they accredited to the state where they are supposed to discharge their functions *consuls do not ordinarily enjoy all the traditional diplomatic immunities and privileges although they are to a certain extent entitled to special treatment under the law of nations Kinds and Grades *CONSULES MISSI – professional or career consuls who are nationals of the appointing state and are required to devote their full time to the discharge of their consular duties *CONSULES ELECTI – may or may not be nationals of the appointing state and perform their consular functions only in addition to their regular callings Appointment Consuls derive their authority from two principal sources: *LETTER PATENT / LETTRE DE PROVISION – commission issued by the sending state *EXEQUATUR – authority given to them by the receiving state to exercise their duties therein 8consuls are public officers not only of the sending state but of the receiving state as well and are governed by the laws of both *states may refuse to receive consuls and to withhold the exequatur from them without explanation Functions
*commerce and navigation *issuance of passports and visas *duties of protection of nationals *PRINCIPAL DUTY OF CONSULS: promote the commercial interests of their country in the receiving state and to observe the commercial trends and developments therein for report to their home government *also perform duties relating to navigation – visiting and inspecting vessels of their own states which may be in the consular district; exercising a measure of supervision over such vessels; adjusting matters pertaining to their internal order and discipline Immunities and Privileges *consuls have a right to official communication and may correspond with their home government or other official bodies by any means including cipher or code without being subjected to censorship or unreasonable restraint. However, this right may be restricted whenever it is exercised to the prejudice of the receiving state *Consuls enjoy the inviolability of their archives, which may not be examined or seized by the receiving state under any circumstance, nor may their production or testimony concerning them be compelled in official proceedings. But this immunity does not extend to the consular premises themselves, where the legal process may be served and arrests made without violation of international law, except only in that part where consular work is being performed *consular offices may even be expropriated for purposes of national defense or public utility *criminal offenses: consuls are exempt from local jurisdiction for crimes committed by them in the discharge of their official functions. Other offenses: fully subject to local law and may be arrested, prosecuted and punished in proper proceedings
*consuls are not prosecuted form minor offenses and, when arrested, are given adequate opportunity to secure their release on bail at the earliest possible time * civil suits: instituted against consuls personal or private capacity but not in matters connected with their official duties *consuls are generally exempted from taxation, custom duties, service in the militia, and social security rules and are privileged to display their national flag and insignia in the consulate although these concessions are considered "non-essential" to the proper discharge of their official duties *these immunities and privileges are also available to the members of the consular post, their respective families, and the private staff. Waiver may in general be made by the sending state. Termination of Consular Mission *removal, resignation, death, expiration of term * the exequatur may also be withdrawn by the receiving state, either of the appointing or receiving state may be extinguished or war may break out between them. * in the event of war, the consulate is closed and the archives are sealed and left in the custody of a caretaker usually a consul from a neutral state. * the consul from the belligerent state is allowed to depart for his own country as soon as possible and without unnecessary molestation CHAPTER 14 TREATIES TREATY – formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treaty-making capacity for the purpose of regulating their mutual relations under the law of nations. *an executive agreement is NOT a treaty Functions of Treaties 1. Treaties enable parties to settle finally actual and potential conflicts
2. Treaties make possible for the parties to modify the rules of international customary law by means of optional principle or standards 3. They may lead to a transformation of unorganized international society into one which may be organized on any chosen level of social integration 4. They provide the humus for the growth of international customary law Essential Requisites of a Valid Treaty 1. Entered into by parties with the treatymaking capacity 2. Through their authorized representatives 3. Without the attendance of duress, fraud, mistake, or other vice of consent 4. On any lawful subject-matter 5. In accordance with their respective constitutional processes Treaty-making process NEGOTIATION, SIGNATURE, RATIFICATION, AND EXCHANGE OF THE INSTRUMENTS OF RATIFICATION NEGOTIATION – one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. *undertaken directly by the head of the state or assigns this task to his authorized representatives *if and when the negotiators finally decide on the terms of the treaty, the same is opened for SIGNATURE. *signature – means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but it does not indicate the final consent of the state *the document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state
RATIFICATION – formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. *Purpose; enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests *EXCHANGE OF THE INSTRUMENTS OF RATIFICATION – signifies the effectivity of the treaty unless a different date has been agreed upon by the parties Binding Effect of Treaties *A treaty is binding only on the contracting parties, including not only the original signatories but also other states which, although they may not have participated in the negotiation of the agreement, have been allowed by the terms to sign it later by a process known as ACCESSION *Instances when 3rd states may be validly held to the observance of or benefit from the provisions of a treaty. * treaty may be merely a formal expression of customary international law which is enforceable on all civilized states because of their membership in the family of nations * for the maintenance of international peace and security * parties to apparently unrelated treaties may also be linked by the mostfavored-nation clause, under which a contracting state entitled to most-favorednation treatment from the other may claim the benefits extended by the latter to another state in a separate agreement Observance of Treaties *Fundamental rules of international law is PACTA SUNT SERVANDA, which requires the performance in good faith of treaty obligations *parties must comply with their commitments under a treaty and cannot ignore or modify its provisions without the consent of the other signatories
* a treaty engagement is not a mere moral obligation but creates a legally binding obligation * treaties really limit of restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state powers in exchange for greater benefits granted by or derived from a convention or pact * the sovereignty of a state therefore cannot in fact and in reality be considered absolute * restrictions: 1. limitations imposed by the very nature of membership in the family of nations 2. limitations imposed by treaty stipulations * DOCTRINE OF REBUS SIC STANTIBUS – constitutes an attempt to formulate a legal principle which would justify non performance of a treaty obligation if the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable. *Limitations: 1. applies only to treaties of indefinite duration 2. the vital change must have been unforeseen or unforeseeable and should not have been caused by the party invoking the doctrine 3. the doctrine must be invoked within a reasonable time 4. it cannot operate retroactively upon the provisions of the treaty already executed prior to the change of circumstances Treaty Interpretation *The basic rule in the interpretation of treaties is to give effect to the intention of the parties. This should be discoverable in the terms of the treaty itself *the usual canons of statutory construction are employed in the interpretation of treaties * read in the light of the whole instrument and especially for the purposes of the treaty
* words used are given their natural meaning unless a technical sense was intended, and * when they have different meanings in the contracting states, should be interpreted in accordance with the usage of the state where they are supposed to take effect * doubts should be resolved against the imposition of obligations and in favor of the of the freedom and sovereignty of the contracting parties * conflicts in treaty interpretations be resolved only by agreement of the parties Termination of Treaties 1. Expiration of the term 2. Accomplishment of the purpose 3. Impossibility of performance 4. Loss of the subject-matter 5. Desistance of the parties 6. Novation 7. Extinction of one of the parties if the treaty is bipartite 8. Vital change of the circumstances under the doctrine of rebus sic stantibus 9. Outbreak of war between the parties 10. Voidance of the treaty because of defects in its conclusion CHAPTER 15 NATIONALITY AND STATELESSNESS * individual is merely an object and not a subject of international law and is thus not directly governed by its rules * NATIONALITY – tie that binds an individual to his state, from which he can claim protection and whose laws he is obliged to obey. Nationality is membership in a political community with all its concomitant rights and obligations * CITIZENSHIP – applies only to certain members of the state accorded more privileges than the rest of the people who also owe it allegiance * SUBJECT – particular reference to the nationals of monarchical regimes
Acquisition of naturality * By BIRTH or By NATURALIZATION * an individual acquires the nationality of the state where he is born (jus soli) or the nationality of his parents (jure sanguinis) * NATURALIZATION – process by which a foreigner acquires, voluntarily or by operation of law, the nationality of another state *DIRECT NATURALIZATION: a. by individual proceedings, usually judicial under general naturalization laws b. by special act of the legislature c. by collective change of nationality as a result of cession or subjugation d. adoption of orphan minors as nationals of the state where they are born * DERIVATIVE NATURALIZATION: a. on the wife of the naturalized husband b. on the minor children of the naturalized parent c. on the alien woman upon marriage to a national * on our own laws, an alien woman married to a Filipino shall acquire his citizenship only if she herself might be lawfully naturalized Multiple Nationality * DOCTRINE OF INDELIBLE ALLEGIANCE – an individual may be compelled to retain his original nationality notwithstanding that he has already renounced or forfeited it under the laws of a second state whose nationality he has acquired * a state may allow any of its nationals to remain as such even if he may have acquired another nationality as where he is conferred an honorary citizenship by a foreign government Loss of Nationality * voluntary methods – renunciation, express or implied, and request for release, both of which usually precede the acquisition of a new nationality * involuntary methods – forfeiture as a result of some disqualification or prohibited act lie enlistment in a foreign army or long continued residence in a foreign state, and substitution of
one nationality for another following a change of sovereignty
* state is not an insurerof the life or property of the alien, whe he is within its territory
Statelessness * statelessness is the condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another * individual is powerless to assert any right that otherwise would be available to him under international law. * Any injury to the individual by a foreign jurisdiction is not a violation of his own right but of the right of the state to the protection of its nationals; the right to complain belongs not to him but to the state of which he is a national.
* the foreigner is expected to take the customary precautions for the protection of his own rights and to avail himself of the usual remedies when these rights are violated
CHAPTER 16 TREATMENT OF ALIENS * every state has the right, as inherent in sovereignty and essential to its own security and existence, to determine in what cases and under what conditions foreigners may be admitted to its territory * once it decides to accept them, its competence as territorial soveriegn as limited by the requirement that they be treated justly, in accordance with the law of nations * the alien canot as a rule claim a preferred position vis-a-vis the national of the state where he is at best only a guest
THE DOCTRINE OF STATE RESPONSIBILITY * instances when an alien can claim a more favored position than the national of the local state and hold the state liable for injuries committed against him while within its territory * a state may be held responsible for: a. international deliquency b. directly or indirectly imputable to it c. which causes injury to the natonal of another state * liabilty will attach to the state where its treatment of alien falls below the international standard of justice or wgere it remiss in according him the protection or redress that is warranted by the circumstances * FUNCTION: assure the traveler that when his rights are violated in a foreign state, he will not be denied any remedy simply because he is not one of its nationals
* the foreigner may not enjoy the right to vote, to run for public office, to exploit natural resources or to engage in certain businesses regarded as vital to the interests of the local state
* encourage more intercourse among the peoples of the world through intervisitation of their respective countries
* the foreigner must accept the institutions of the local state
THE INTERNATIONAL STANDARD OF JUSTICE
* Standard of th reasonable state, that is, as referring to the ordinary normsof official conduct observed in civilized jurisdictions. * DOCTRINE OF EQUALITY OF TREATMENT – where the laws of state fall below the international standard of justice, it is no defense that they are applicable not inly to aliens but as well, and equally, to the nationals of that state. The relations of that state with ots own nationals are purely municipal; international law is involved in its relations with the nationals of other states. FAILURE OF PROTECTION OR REDRESS * state may be held liable if it does not make reasonable efforts to prevent injury to the alien or, having done so unsuccesfully, fails to repair such injury. * degree of diligence required * responsibility does not immediately attach to the state upon a showing of a failure to prevent or redress an injury to aliens * distinction must be made between direct and inirect state responsibility a. where the imternational delinquency was committed by superior government officials or organs, liability will attach immediately as their acts may not be effectively prevented or reversed under the constitution and laws of the state b. where the offense is committed by inferior government officials or, more so, by private individuals, the state will be held liable only if, by reason of its indifferencein preventing or pushing it, it can be considered to have conived in effect in its commission
EXHAUSTION OF LOCAL REMEDIES * the liability of the state for an international delinquency, its enforcemnet cannot be claimed by the injured foreigner unless, he first exhausts all available local remedies for the protection or vindication of his rights * state must be given an opportunity to do justice in its own regular way and without unwarranted interference with its sovereignty by other states * this requirement may be dispensed with, however, if there are no remedies to exhaust, as where the laws are intrinsically defective or there is laxity or arbitrariness in their enforcement or where the courts are corrupt or where there is no adeqaute machinery for the administration of justice * there would be NO remedy available from "acts of state" which are not subject to judicial review RESORT TO DIPLOMATIC PROTECTION * if the injured foreigner has exhausted all the local remedies but without success, he may then avail himself of the assistance of his states – but only if he has a state. Otherwise, he will have no party to represent him, and he by himself, being a mere individual, cannot institute his claim in his own name. * any injury to an alien is a violation not of his own personal rght but of the right of his state to hacve its nationals protected but of the right of his state to have its nationals protected whenever they are in a foreign country * where the injured alien is stateless, his case will be one of DANNUM ABSQUE INJURIA and cannot be subject of diplomatic protection
* tie of nationality – required to exist from the time of the injury until the time the international claim is finally settled. Once the tie is broken, the claim itselfis deemed automatically abated. If, the injured national dies while the claim is under consideration and it should happen that his hers are not nationals of the claimant state, the claim will lapse ENFORCEMENT OF CLAIM * an international claim for damages may be resolved through negotiation or, if this fails, any of the other methods of settling disputes * in the event that the responsibility of the state is established or acknowledged, the duty to make reaparation will arise. Such reparation may take the form of RESTITUTION or SATISFACTION or COMPENSATION. AVOIDANCE OF STATE RESPONSIBILITY * to avoid the intervention of the alien's state in contracts, the local state sometimes incorporates therein what is known as the CALVO CLAUSE * Calvo Clause – stipulation by which the alien waives or restricts his right to appeal to his own state in connection with any claim arising from the contract and agrees to limit himself to the remedies available under the laws of the local state. * calvo clause may be enforced as a lawful condition of the contract. However, may not be interpreted to deprive the alien's state of the right to protect or vindicate his interests in case they are injured in another state as such waiver can legally be made not by him but by his own state EXCLUSION OF ALIENS
* the state may also avoid liability to aliens by refusing their admission, but this is not regarded as sound policy since it would provoke retaliation in kind and ultimately isolate its nationals from the rest of the international community * DEPORTATION: the removal of an alien out of the country, simply because his presence is deemed inconsistent with the public welfare and without any punishment being imposed or contemplated, either under the laws of the country out of which he is sent, or under those of the country to which he is taken * EXCLUSION: denial of entry to an alien DEPORTATION
Unilateral act if the Effected at the request of the state of local state origin Based on causes Based on offenses arising in the local generally committed state in the state of origin Undesirable alien may Calls for the return of be deported to a state the fugitive to the other than his own or state of origin the state of origin
Basis of Extradition * The extradition of a person is required only if there is a treaty between the state of refuge and the state of origin * in the absence of a treaty – local state has every right to grant asylum to the fugitive and to refuse to deliver him back to the latter state even if he is a national
CHAPTER 17 Fundamental Principles of Extradtition 1. extradition is based on the consent of the state of asylum 2. Principle 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 extradition treaty 3. any person may be extradited 4. political and religious offenders are generally not subject to extradition 5. in the absence of a special agreement, the offense must have been committed within the territory or against the interests of the demanding state 6. Rule of double criminality - the act for which the extradition is sought must be punishable in both the requesting and requested states Procedure of Extradition * if the surrender of a fugitive is sought, a request for his extradition is presented through diplomatic channels to the state of refuge * this request will be accompanied by the necessary papers relative to the identity of the wanted person and the crime he is alleged to have committed or of which he has already been convicted * upon receipt of request, the state of refuge will conduct a judicial investigation to ascertain if the crime is covered by the extradition treaty and if there is a prima facie case against the fugitive according to its own laws
SETTLEMENT OF INTERNATIONAL DISPUTES
* DISPUTE – exists when one state claims that another state should have behave in a certain manner and that claim is rejected by the latter * 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 * SITUATION – initial stage of a dispute * Dispute is LEGAL – involves a justiciable rights based on law or fact susceptible of adjudication by a judicial or arbitral tribunal. * Dispute is POLITICAL – if it cannot be decided by legal processes on the basis of the substantive rules of international law because the differences of the parties spring from animosities in their mutual attitudes rather than from an antagonism of legal rights * the solution to such a disputes lies not in the councils of the courts but in the corridors of diplomacy Methods of settling disputes * disputes are required to be settled, conformably to one of the basic principle of the UN, "by peaceful means in such a manner that international peace and security, and justice are not endangered Amicable Methods 1. Negotiation – generally the first step taken in the settlement of an international dispute is the discussion undertaken by the parties themselves of their respective claims and
counterclaims with a view to their just and orderly adjustment. * where the talks prosper and agreement is reached, it is usually formalized in a treaty or more directly effected through the rectification of the injury caused to the claimant state 2. Inquiry – investigation of the points in question, on the theory that their education will contribute to the solution of the differences between the parties.
SETTLEMENT Arbitral tribunal is an Judicial tribunal is a ad hoc body created pre-existing and and filled by the permanent body parties to the dispute themselves Submission to Jurisdiction arbitration is voluntary compulsary Arbitration proceedings - limited
3. Good Offices – method by which a third party attempts to bring the disputing states together in order to enable them to discuss the issues in contention and arrive at an agreement 4. Mediation – third 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 and appease their feelings of resentment 5. Conciliation – active participation of a third party in the attempt of the disputants to settle their conflict, and the recommendations made by it are likewise not binding. 6. Arbitration – solution of a dispute by an impartial third party, usually a tribunal created by the parties themselves under a charter known as the COMPROMIS 7. Judicial Settlement – the nature of its proceedings and the binding character of the decisions but also in the fact that the disputes submitted for adjudication are legal rather than political
The law applied by the tribunal in judicial settlement is independent of the will of the parties
* the jurisdiction of the court is not compulsory but dependent on the agreement of the parties to submit to and be bound by its decisions. Such consent may be manifested in a treaty containing what is called the "compromissary clause" 8. ACTION BY REGIONAL ORGANIZATIONS – resorted to by the parties at their own volition or taken by the body itself at its own instance if allowed by agreement of the members Hostile Methods 1. INTERVENTION 2. RETORSIONS – retaliation where the acts complained of do not constitute a legal ground of offense but are rather in the nature of unfriendly acts but indirectly hurtful to other states 3. REPRISALS – act of self-help on the part of the injured state, responding after an unsatisfied demand to act contrary to
international law on the part of the offending state *they aim to impose on the offending state reparation for the offense or the return to legality in avoidance of new offenses *Common forms of reprisals 1. display of force 2. occupation of territory 3. pacific blockade
The Security Council may recommend appropriate measures or methods of adjustment, taking into consideration: a. Any amicable measures already adopted by the parties b. That legal disputes should as a rule be referred to the International Court of Justice *Where the terms of settlement are rejected by the parties, the Security Council is empowered to take more drastic steps a. PREVENTIVE ACTION – it may adopt such measures not involving the use of armed force
The United Nations b. ENFORCEMENT ACTION * United nations may be asked or may decide on its own authority to take a hand in its settlement. * the security council shall have the jurisdiction to intervene in; a. all disputes affecting international peace and security b. all disputes which, have been submitted to it by the parties for settlement
CHAPTER 18 WAR *WAR – armed contention between the public forces of states or other belligerent communities, implying the employment of violence among the parties as a means of enforcing their respective demands upon each other * War may exist even without the use of force
* such disputes may be brought to it by: a. the security council, on its own Outlawry of war
c. any member of the united nations
* war was originally accepted as a legitimate means of a compulsion, that it was a reaction to an international delict
d. the secretary general
* in only 2 instances is the use of force allowed:
b. the general assembly
e. any party to the dispute, provided that in the case of non-members of the UN, they should accept in advance, for the purposes of the dispute, the obligations of pacific settlement under the Charter
1. exercise of the inherent right of selfdefense 2. enforcement action
How are the agreements enforced? *the commonly accepted sanctions are: a. protest lodged by one belligerent, usually accompanied or followed by an appeal b reparation for damages is cause by the defeated belligerent c. punishment of war criminals
Commencement of war * War is supposed to commence on the date specified in the declaration or on the date it is communicated to the enemy * formality is often not observed as evidenced by the number of wars that have broken out without the "previous and explicit warning" required * commence from the moment of the first act of force committed by one state with the intent of making war or committed without such intent but considered by the other state as constituting war
3. treaties of a political nature are automatically cancelled, but those which are precisely intended to operate during war are activated 4. individuals are impressed with enemy character a. nationality test – if they are nationals of the other belligerent wherever they may be b. domiciliary test – if they are domiciled aliens in the territory of the other belligerent, on the assumption that they contribute to its economic resources c. activities test – if being foreigners they are nevertheless participate in the hostilities in favour of the other belligerent *corporations and other juridical persons are regarded as enemies if a majority or a substantial portion of their capital stock is in the hands of enemy national or if they have incorporated in the territory or uner the laws of the other belligerent 5. enemy public property found in the territory of the other belligerent at the outbreak of hostilities is subject to confiscation
Combatants and non-combatants Effects of the Outbreak of War 1. the laws of peace cease to regulate the relations of the belligerent 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
*Combatants – those who engage directly in the hostilities; may lawfully wage war and are thus subject to direct attack from the enemy *Non-Combatants – those who do not engage directly in the hostilities; should not be subjected to attack as they are not supposed to participate in the actual fighting * The following are regarded as combatants: 1. members of the armed forces
2. irregular forces a. they are commanded by a person responsible for his subordinates b. they wear a fixed and distinctive sign recognizable at a distance c. they carry arms openly d. they conduct their operations in accordance with laws and customs of war 3. levee en masse – the inhabitants of unoccupied territory who, on the approach of the enemy, spontaneously take arms to resist the invading troops without having had time to organize themselves 4. officers and crew of merchant vessels who forcibly resist attack
Conduct of Hostilities * three basic principles underlie the rule of warfare 1. principle of military necessity – employ any amount and kind of force to compel the complete submission of the enemy with the least possible loss of lives, time and money 2. principle of humanity – use of any measure that is not absolutely necessary for the purposes of war 3. principle of chivalry – those that require the belligerents to give proper warning before launching a bombardment or prohibit the use of perfidy in the conduct of the hostilities * an individual can only be considered a spy if, acting clandestinely or under false pretenses,
he obtains or seeks to obtain information in the zone of operations if a belligerent *spies are subject to the municipal law of the other belligerent * a spy taken in the act cannot be punished without previous trial
Kinds of Warfare * warfare may be waged on LAND or SEA or in the AIR, separately or simultaneously * most of the rules on aerial warfare have become obsolete and need to be revised to make them conform to present realities * as for naval warfare, the most serious difficulties lie in th disagreement among states as to whether armed merchant vessels are subject to direct attack *one important rule is that booty or personal property found in the battlefield is subject to confiscation by the belligerent occupation except only the personal belongings of the individual combatants which have no military value. THEATRE OF WAR: place where the hostilities are actually conducted REGION OF WAR: greater area where the belligerents may lawfully engage each other
Belligerent Occupation * territory is deemed occupied when it is actually placed under the authority of the hostile army, but this occupation is limited only to the area where such authority has been
established and can be effectively exercised. It is not necessary that every square foot of the territory in question be actually occupied * Belligerent occupation does not result in transfer or suspension of the sovereignty of the legitimate government although it may at the moment be unable to exercise it. The belligerent occupant cannot perform such acts as declaring the independence of the occupied territory or requiring its inhabitants to renounce their allegiance to the lawful government * the belligerent is required to restore and ensure public order and safety while respecting, unless absolutely prevented, the laws in force in the country. * the belligerent occupant may promulgate new laws, non-political as well as political, provided they do not contravene the general accepted principles of international law. The political laws are automatically abrogated upon the end of the occupation but the non-political laws may continue even beyond the occupation unless they are expressly repealed or modified by the legitimate government * it is permitted for the belligerent occupant to introduce military currency, provided the purpose is not to debase the country's economy * private property cannot be confiscated, but those susceptible of military use may be seized, subject to restoration or compensation when peace is made * the property of municipalities and of institutions dedicated to religion, charity and education, and the arts and sciences, even when state owned, shall be treated as private property and their destruction is expressly forbidden
* the army of occupation can only take possession of cash, funds and realizable securities which are strictly the property of the state, depots of arms, means of transport, stores and supplies, and generally movable property belonging to the state which may be used for military operations *the occupying state shall be regarded only as administrator and usufructuary of public buildings, real estate, forest, agricultural estates belonging to the hostile state and situated in the occupied territory
Postliminium * 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 POSTLIMINIUM – reinstatement of the authority of the displaced government once control of the enemy is lost over the territory affected * upon the end of a belligerent occupation, the laws of the re-established government are revived and all acts taken by the belligerent occupant which it could not legally do under the law of nations, as well as lawful acts of a political complexion, are invalidated
Non-Hostile Intercourse FLAG OF TRUCE – white flag carried by an individual authorized by one belligerent to enter into communication with the other
CARTELS – agreements to regulate intercourse during war on matters as postal and telegraphic communication
Usually in writing
PASSPORT – written permission given by the belligerent government or its authorized agent subjects of the enemy state to travel generally in belligerent territory
* CEASEFIRE – unconditional stoppage of hostilities by order of an international body
SAFE-CONDUCT – pass given to an enemy subject or to an enemy vessel allowing passage between defined points
* CAPITULATION – surrender of military forces, places or districts in accordance with the rules of military honor
SAFEGUARD – protection granted by a commanding officer either to enemy persons or property within his command
Termination of war
LICENSE OF TRADE – permission given by the competent authority to individuals to carry on trade even though there is a state of war
May be oral
* TRUCE – regarded as ceasefire with conditions attached
1. cessation of hostilities 2. conclusion of a negotiated treaty of peace 3. defeat of one of the belligerents followed by a dictated treaty of peace
Suspension of Hostilities * SUSPENSION OF ARMS – temporary cessation of the hostilities by arrangement of the local commanders for such purposes as the gathering of the wounded and the burial of the dead. * ARMISTICE – suspension of all hostilities within a certain area or in the entire region of war agreed upon by the belligerent governments usually for the purpose of arranging the terms of the peace ARMISTICE
Purpose: political
SUSPENSION OF ARMS Purpose: military
May be concluded by May be agreed upon the commanders-in- by the local chief commanders
* Principle of uti possidetis – property or territory in the possession of the respective belligerents upon the termination of the war is retained by them * Status quo ante – calls for the complete restoration to their former owners of property or territory that may have changed hands during the hostilities, with the exception only of prize and booty * war is supposed to end with the reestablishment of peace but the precise date is not easily fixed in view of the different methods of terminating the state of hostilities
Aftermath of War * one of the inevitable consequences of war s the implied judgment, right or wrong, that the
vanquished belligerent is the guilty party in the dispute that caused the hostilities.
* intended to operate in time of peace as well as in time of war
* treaty of peace imposed by the victor upon the defeated state is regarded as a punishment as is sustained on the ground although marked by the vice of duress that normally would invalidate other agreements
*Only states may become neutral but portions of states may be neutralized
*nationals of the vanquished state may be protected and punished as war criminals and for other violations of international law. They may not escape responsibility on the ground that they were merely acting on orders of their state
a. Relations of the belligerent states with the neutral state b. Relations of the belligerent states with the nationals of the neutral state
CHAPTER 19 NEUTRALITY * A state is said to be neutral if it does not take part, directly or indirectly, in a war between other states.
Laws of Neutrality
Relations of belligerent States and Neutral States * a neutral state has the right and duty to abstain from taking part in the hostilities and from giving assistance to either belligerent; prevent its territory and other resources from being used in the conduct of hostilities by the belligerents, and to acquiesce in certain restrictions and limitations that the belligerent may find necessary to impose, especially in connection with international commerce
Neutrality and Neutralization * neutrality – dependent solely on the attitude of the neutral state, which is free to join any of the belligerents any time it sees fit
* belligerents are bound to respect the status of the neutral state
* governed by the law of nations
Use of Neutral Territories
*obtains only during war
* neutral territory is inviolable and cannot be used by the belligerents for the movement of troops and the undertaking of military operations in general
* neutralization – result of a treaty wherein the duration and the other conditions of the neutralization are agreed upon by the neutralized state and other powers * this agreement governs the conduct of signatories
* use of neutral territory is not completely barred to the belligerents (example: passage of sick and wounded troops)
* neutral state may give refuge to troops from the belligerent forces * escaped prisoners of war need not be detained by the neutral state but must be assigned a place of residence if they are allowed to remain *warships may not enter neutral ports, roadsteads and harbours except only in cases of unseaworthiness. The usual duration of the sojourn is 24 hours but this may be shortened or extended, depending on the reason for the entry. Thus, the vessel must leave as soon as it has been re-provisioned *General rule: repairs in their territory of damage sustained by a warship in battle – permitted so long as they are not intended to increase the fighting force of the vessel.
* neutral state may not send military contingents, extend loans or even sell for valuable consideration, supplies of war to either or both of the belligerents * neutral state is not obliged to prevent the export from or transit through its territory of war supplies purchased from private traders by the belligerents in the ordinary course of commerce, it is required to take reasonable diligence in preventing the delivery of vessels constructed and armed in its territory for use by any of the belligerents Relations of Belligerent States with Nationals of Neutral states * neutral states enact legislation to avoid their involvement in foreign wars as a results of the acts of their nationals
*not more than 3 vessels from any belligerent shall be allowed simultaneously in the same neutral port or waters
* neutral states are free to allow their nationals to deal, in their private capacity, with any of the belligerents
* territorial waters of a neutral state must never be used as asylum for belligerent vessels under pursuit or attack by the enemy
* international law considers the relationship as strictly between the individual and the belligerent states and whatever hardships may be suffered by its nationals as a result thereof must, as a rule, be acquiesced in by the neutral state
* passage of military aircraft belonging to the belligerents is not allowed across the airspace of a neutral state. *where a belligerent aircraft is forced to land on neutral territory, the same should be detained and its officers and crew interned
Use of Neutral Facilities and Services * it is prohibited from giving belligerents any form of direct assistance in connection with the conduct of hostilities.
Visit and Search * belligerent warships and aircraft have the right to visit and search neutral merchant vessels on the high seas for the purpose of determining whether they are in any way connected with the hostilities * the vessels may be captured as prize if they are engaged in hostile activities, if they resist to
visit and search, or if there is reasonable suspicion that they are liable to confiscation
by the belligerent forces are also liable to seizure
* the cargo of these vessels may also be captured under certain conditions, as when they are contraband
* contraband are subject to condemnation
*Prize is not confiscated summarily but must be brought to a prize court for adjudication *PRIZE COURT – is a tribunal established by a belligerent under its own laws, and applies rules of international law in the absence of special municipal legislation. Contraband * contraband – term applied to goods which, although neutral property, may be seized by a belligerent because they are useful for war and are bound for a hostile destination * ABSOLUTE CONTRABAND – necessarily useful for war under all circumstances * subject to seizure so long as they are bound for enemy or enemy-held territory * CONDITIONAL CONTRABAND – both civilian and military purposes *may be seized only when it can be shown that they are destined for the armed forces or the authorities of the belligerent government * FREE LIST – includes goods useful for war and bound for the belligerents but exempted from the law on contraband for humanitarian reasons * DOCTRINE OF ULTIMATE CONSUMPTION – goods intended for civilian use which may ultimately find their way to and be consumed
* DOCTRINE OF INFECTION – if they are shipped together with innocent goods belonging to the same owner; the latter may also be confiscated * contraband are liable to capture from the time they leave the port in which they are loaded and until they reach their final hostile destination * DOCTRINE OF ULTIMATE DESTINATION – liability of the contraband to capture is determined not by their ostensible but by their real destination * even if the vessel intends to stop at an intermediate neutral port, it will still be considered as in one continuous voyage provided it can be shown that its cargo will ultimately be delivered to a hostile destination * DOCTRINE OF CONTINUOUS VOYAGE – when the goods are reloaded at the intermediate port on the same vessel * DOCTRINE OF CONTINUOUS TRANSPORT – when they are reloaded on another vessel or other form of transportation Blockade *Blockade – hostile operation by means of which the vessels and aircraft of one belligerent prevent all other vessels, including those of neutral states, from entering or leaving the ports or coasts of other belligerent, the purpose being to shut off the place from international commerce and communication with other states
*Pacific blockade – applies only to the vessels of blockaded state and does not affect the vessels of other states *Requisites of blockade: a. binding – duly communicated to the neutral states b. effective – it is maintained by adequate force so as to make ingress to or egress from the port dangerous c. established by the proper authorities of the belligerent government d. limited only to the territory of the enemy and not extended to neutral places or international rivers e. impartially applied to all states alike * the liability of a neutral vessel to capture for breach of blockade is contingent on its knowledge, actual or presumptive of the blockade and continues as long as it is pursued by the ships of the blockading force after it has left or tried to enter the blockaded port
Unneutral Service * consists of acts, of a more hostile character than carriage of contraband or breach of blockade, which are undertaken by merchant vessels of a neutral state in aid of any of the belligerents * a neutral vessel is liable to condemnation for unneutral service: 1. if it is making a voyage special with a view to the transport of individual passengers who are embodied in the armed forces of the enemy or
with a view to the transmission of information in the interest of the enemy; OR 2. if with the knowledge of the owner, or the one who charters the entire vessel, it is transporting military detachment of enemy or one or more persons who, during the voyage, lend direct assistance to the operations of the enemy * a neutral vessel is also liable to condemnation and to be treated as a merchant vessel of the enemy: 1. takes a direct part in the hostilities 2. if it is under the orders or control of an agent placed on board by the enemy government 3. chartered entirely by the enemy government 4. if it is at the same time and exclusively either devoted to the transport if enemy troops or the transmission of information
Angary * by the right of angary – a belligerent may, upon payment of just compensation, seize, use or destroy, in case of urgent necessity for purposes of offenses or defense, neutral property found in its territory, in enemy territory, or on the high seas * THREE REQUISITES 1. that the property is under the control or jurisdiction of the belligerent 2. thet there is urgent necessity for the taking 3. that just compensation is paid to the owner Termination of Neutrality
1. when the neutral state joins the war * neutral state will be governed by the laws of war in its relations with the other belligerents and by the laws of neutrality in its relations with all other states 2. upon conclusion of peace *all states will again be governed by the laws of peace
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