Part 6 Nachura - Public International Law

8/13/2019 Part 6 Nachura - Public International Law

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1 Loyola.Reyes.Vibandor.

PUBLIC INTERNATIONAL LAW


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General PrinciplesA. International Law defined

Traditional ModernBranch of public law w/c:Regulates relations of States & of otherentities granted intl personality.*This defn focuses on subjects w/c are entitiespossessing:- intl personality & - w/ rights & obligations recognized underinternational law,As against objects w/c are persons or things in

w/c rights are held & oblig assumed by thesubjects of intl law+

Law w/c deals w/:- Cond uct of States & intl org - Their relations w/ each other- & their relations w/ persons, natural or

juridical

B. Basis of Intl Law

Law of Nature School Possitivist School Ecletic or Groatian School-natural & universal principleof right & wrong-independent of mutual

intercourse/ compact w/c canbe discovered & recognizedby every indiv. through theuse of his reason &conscience.

-Binding force of intl law:derived from agreement ofStates to be bound by it.

-intl law is not a law ofsubordination but coordination

-conforms to the dictates ofright reason-the voluntary law may be

said to blend w/ the naturallaw & be an expression of it-in case of conflict, the naturallaw prevails, being the morefundamental law

C. Public International Law distinguished from:

Private Int Law IntlMorality/Ethics

Intl Comity IntlDiplomacy

Intl Admin. Law

A. As to nature:Intl vs.municipalB. As toremedies:Intl modes vs.local tribunalsC. As to parties:Intl entities vs.private persons

D. As toenforcement:Intl sanctionsvs. sheriff/police

Govern relationsof States fromthe standpoint ofa. Conscienceb. Moralityc. Justiced. Humanity

Rules ofpoliteness/courtesyobserved by Statesin their relationsw/other States

-objects of:a) intl policy & b) conduct offoreign affairs

Regulatesrelations &activities of:a)natl & b)intl agencies w/respect totheir:a)material &b)intellectualinterests

w/c havereceived intlrecognition

D. Intl Law as true law


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Although it may not comply w/John Austins concept of law, i.e., enforced by sovereignpolitical authority, nonetheless it is still a true law

Application, enforcement, & compliance.

Absence of a central law-making authority & the jurisdictional defects,weaken theexpectation of compliance in comparison w/ the situation in the domestic plane.

These considerations are, however, balanced by the risk of political/ economicretaliation & other sanctions such as

a. adverse public opinionb. retorsionsc. reprisalsd. the UN machinerye. conviction that obedience will redound to the public good

E. Relationship w/ Municipal Law (ML)

Monist DualistNo substantial distinction between intl law& municipal law.(oo eto lang to)

ML- issued by a politicalsuperior forobservance by thoseunder its authority- consists of

enactments of law-making authority

- regulates relationsof indiv. amongthemselves-violations areredressed throughlocal judicial &administrative

processes-breaches entail indivresponsibility

IL- not imposed butadopted by states asa common rule ofaction- derived from such

sources as intlcustoms, conventionsor gen. principles oflaw-relations betweenstates & intl persons -redressed throughstate-to-statetransactions

-collectiveresponsibility

Doctrine of Incorporation Doctrine of transformationExpressed in S2 Art2 The Phils. Renounceswar as an instrument of national policy,adopts the generally accepted principles ofinternational law as part of the law of the land& adheres to thepolicy of peace

Requires the enactment by the legislative bodyof such intl law principles as are sought to bepart of municipal law

Conflict between International Law & Municipal Law

On the domestic sphere, w/a local courtdeciding

International sphere, w/an intl tribunaldeciding

a) if conflict is w/Consti: International law is superior to municipal law,


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uphold Constib) if conflict is w/statute:

doctrine of incorporation decrees thatrules of intl law are given equalstanding w/, but not superior to

national legislative enactments.A treaty may repeal a statute & astatute may repeal a treaty; thus, theprinciple of lex posterior derogate

priori , that w/c comes last in time, willusually be upheld by the municipaltribunal

because intl law provides the standard byw/c to determine the legality of a Statesconduct.

F. Sources of Intl Law

Domestic sphere International PlaneConstitution, legislative enactments, & caselaw (stare decisis).

Its complicated (hiyess!) because there is nobody likened to a natl legislature, nofundamental law, & the doctrine ofprecedents is not applicable.

However, most authoritative enumeration is found in Art. 38, Statute of the Intl Courtof Justice w/c provides that the Court, whose function is to decide in accordance w/ Intl Lawsuch disputes as are submitted to it, shall apply:

PRIMARY SOURCES

1. International Treaties & conventions

The Rome Statute- Signed July 17, 1998- Effective July 1, 2002- Based on the principle of complementarity- Made Philippines part of the International Criminal Court. It is a modern initiative

and rather ambitious because an individual can be tried therein and he cannot

invoke immunity.- No Retroactivity- Gives primacy to local courts- No Death Penalty

2. International Customs

- Prevailing practice- Repeated over considerable period of time- Opinio Juris

3. General Principles of law

- Natural Law- Observed and Organized


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To these may be added the principle of ex aequo et bono (what is good & just),provided that the parties to the dispute agree thereto, as provided in Art. 38 (1)Statute of the International Court of Justice

Interpretation of Art. 38 - Although the provision is silent on the question of whether the 3primary sources have the same hierarchic value, by practice, treaties take precedence overcustoms, & customs over general principles of law, except:

The principle of jus cogens customary intl law w/c w/c has a status of peremptory(absolute, uncompromising, certain) norm of intl law.

Peremptory norm - accepted & recogni zed by intl community of states as a rule fromw/c no derogation is permitted, & w/c can be modified only by a subsequent norm having the

same character.

Ex. slave trade, piracy & terrorism

SECONDARY SOURCES

1. Judicial decisions ICJ. Whether the norm has been accepted as a rule of internationallaw.

2. Writings of publicists Fair and unbiased representation of international law byacknowledged authorities in the field.


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Subjects of International Law

A. Distinction between subject & object of international law

Subject ObjectsAn entity that has rights & responsibilitiesunder intl law; Can be a proper party in transactions involvingthe application of the law of nations amongmembers of the intl community. Includes:States, colonies, & dependencies, mandates &trust territories, the Holy See (Vatican City),

the UN, belligerent communities, internationaladministrative bodies, & to a certain extent,individuals.

A person or thing in respect of w/c rights areheld & obligations assumed by the subject;Not directly governed by the rules of intl law; Its rights are received, & its responsibilitiesimposed, indirectly through theinstrumentality of an intl agency.

B. States

Group of people living together in a fixed territory, organized for political ends under anindependent government , & capable of entering into intl relations w/ other states.

ELEMENTS

a. People- both sexes, sufficient in number to maintain & perpetuate themselvesb. Territory- fixed portion on the earths surfacec. Govt- organized, w/ ctrl over & capable of maintaining law & order w/in the countryd. Sovereignty/ independence- freedom from outside ctrl in the conduct of its foreign

(&internal affairs)

Other suggested elements of a state:

a. civilizationb. recognition- wherein state acknowledges the existence of another state, govt, or

belligerent community & indicates its willingness to deal w/ the entity as such underintl law.

THEORIES ON RECOGNITION:

A. Constitutive (majority view)- Recognition is the act w/c constitutes the entity into an intl person.- Recognition is compulsory & legal; may be compelled once the elements of a state

are established

B.

Declarative (majority view)-

Recognition merely affirms an existing fact, like the possession by the state ofessential elements.

Its discretionary & political

BASIC RULES ON RECOGNITION


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A. Its a political act B. Discretionary on the part of recognizing authorityC. Exercised by political (executive) department of stateD. Legality & wisdom- not subject to judicial review

REQUIREMENTS FOR RECOGNITION OF GOVT

1. Govt is stable & effective, 2. w/no substantial resistance to its authority3. Govt must show willingness & ability to discharge intl oblig. 4. Govt must enjoy popular consent or a pproval of the people

Tobar/ Wilson Doctrine Stimson Doctrine Estrada DoctrinePrecludes recognition of anygovt established byrevolutionary means untilconstitutional reorganizationby free election ofrepresentatives

No recognition of a govtestablished through externalaggression

Since recognition has beenconstrued as approval (& non-recognition, disapproval) ofgovt established through judicial upheaval, a state maynot issue a declaration givingrecognition to such govt, butmerely accep t whatever govtis in effective control w/oraising the issue ofrecognition.Dealing or not dealing w/thegovt is not a judgment of

legitimacy of the said govt

KINDS OF RECOGNITION

De facto

-Extended by the recognizing state w/c believes that some of requirements forrecognition are absent.

-Recognition is generally provisional and limited to certain juridical relations.-Does not bring about full diplomatic intercourse & does not give title to assets of the

state held/ situated abroad

De Jure-Extended to govt fulfilling requirements for recognition -when theres no specific indication, recognition is generally considered de jure -relatively permanent-brings about full diplomatic intercourse & observance of diplomatic immunities, &-confers title to assets abroad

EFFECTS OF RECOGNITION

-diplomatic relations-right to sue in courts of recognizing state-immunity from jurisdiction-entitlement to property w/in the recognizing state


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-retroactive validation of the acts of the recognized state/govt, such as acts of state andthus, sovereign immunity covers past, present & future acts

RECOGNITION OF BELLIGERENCY; CONDITIONS

1. Organized civil govt having ctrl & supervision over the armed struggle 2. Serious & widespread struggle w/uncertain outcome3. Occupation of substantial portion of the natl territory 4. Willingness of rebels to observe to observe rules of war

EFFECTS OF RECOGNITION OF BELLIGERENCY

Responsibility for acts of rebels resulting in injury to nationals of the recognizing stateshall be shifted to the rebel govt;

Legitimate govt recognizing the rebels shall observe the laws of war in conductinghostilities

Third states recognizing the belligerency shall maintain neutrality, andRecognition is only provisional (for the duration of the armed struggle) & only for the

purpose of hostilities

CREATION OF STATES

1. Revolution2. Unification3. Secession4. Assertion of independence

5.

Agreement6. Attainment of civilization

PRINCIPLE OF STATE CONTINUITY

State- continues as a juristic being notwithstanding changes in its circumstances,provided only that such changes do not result in loss of any of its essential elements

Succession of States Succession of Governments

Consequences - Political laws areabrogated while municipallaws remain in force- Treaties are discontinued,except those dealing withlocal rights and duties suchas those establishingeasements and servitudes- All rights of predecessorstate are inherited butsuccessor state can

assume and rejectliabilities at its discretion

- Rights of predecessorgovernment are inherited bysuccessor- Where the new governmentwas organized by virtue ofconstitutional reform ratified in aplebiscite, all obligations of thepredecessor are likewiseassumed, however, where thenew government establishedthrough violence, the new

government may lawfully rejectpurely personal or politicalobligations of the predecessor,but not those obligationscontracted by it in the ordinarycourse of official business.


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CLASSES OF STATES

A. INDEPENDENT

Has freedom to direct & ctrl foreign relations w/o restraint from other states. May be:

Single CompositeSingle central govt, w/power over internal& external affairs

2/ more sovereign states joined together toconstitute 1 international person, w/c may be:

Real union2/more states sremerged under aunified authority sothat they form asingle internationalperson through w/cthey act as 1 entity.The sy=tates retaintheir separateidentities, but theirrespectiveinternationalpersonalities areextinguished &blended in the newintl person,

e.g., the formerUnited Arab Republic,w/Egypt & Syria.

Federal unionCombination of2/more states w/cuponmerger, cease tobe states, resulting inthe creation of a newstate w/full intlpersonality torepresent them intheir externalrelations as well as acertain degree ofpower over theirdomestic affairs &their inhabitants.Authority overinternational affairs:

divided betweenfederal authorities &the member-states;Authority overexternal affairs:handled solely byfederal authorities

B. DEPENDENT

An entity w/c although theoretically a state, does not have full freedom in the directionof its external affairs, such as a protectorate (w/c is established at request of weaker state forthe protection by a strong power) or a suzerainty (result of a concession from a state to aformer colony thats allowed to be independent subject to the retention by the formersovereign of certain powers over the external affairs of the latter. E.g., Bulgaria & Rumania,both suzerainties of the Sultan of Turkey by virtue of Treaty of Verlin)

C. NEUTRALIZED

Independence & integrity are guaranteed by an intl treaty on the condition that suchstate obligates itself never to take up arms against another (except self-defense), or to enterinto an intl obli. as would indirectly involved it in war, e.g., Switzerland, Austria


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Vatican city & the Holy SeeHoly See- has all constituent elements of statehood (people: less than 1000 individuals;

territory: 108.7 acres; govt w/the Pope as head; & independence by virtue of Lateran Treaty of1929 w/c constituted Vatican as a territory under sovereignty of Holy See)

It has all the rights of the state, including diplomatic intercourse, immunity from foreign

jurisdiction, etc

D. Colonies & Dependencies

COLONY DEPENDENCYDependent political community consisting of anumber of citizens of the same country whohave migrated therefrom to inhabit anothercountry but remain subj of mother state

Territory distinct from the country in w/csupreme sovereign power resides, but belongsrightfully to it, &subject to laws & regulationsw/c sovereign may prescribe.

E.

Territories under Intl court / supervision

Non-self- governing territories placed under intl supervision/ctrl to insure their political,eco, soc & educ advancement.

Ex. mandates w/c are former territorial possessions of the states defeated in World WarI & placed under the control of League of Nations. Many of these mandates became trustterritories placed under the trusteeship council of the UN

F. The United Nations

1. Historical development.2. UN charter

- Closest to Consti. Governs relations of intl persons. -Technically a treaty, a contract under doctrine of pacta sunct servanda although it

actually applies even to non- member states, at least in so far as may be necessary formaintenance of international peace & security

Amendment:a. 2/3 vote of GA mem & ratified by 2/3 of UN members.

b. General conference called by majority vote of GA & any 9 members of SecurityCouncil (SC), may propose amendments by a 2/3 vote of the conference & shall takeeffect when ratified by 2/3 of UN mem

Purpose: Prevention of war , maintenance of intl peace & security, devt of friendlyrelations among the members of intl community, intl cooperation, harmony of actions ofnation

3. Membership:

Classes Original or ElectiveQualification Member must be a state, peace loving, accept the obligation under the charter

and be able and willing to carry out these obligationsAdmission Decision of 2/3 of those present and voting in the GA upon recommendation of

at least 9 members of the Security CouncilSuspension Same vote as admission. Suspended member cannot participate in GA meetings.

Cant be elected to or continue to serve in the Security council, Economic and


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social Council, Trusteeship council but nationals may continue the secretariatand the ICJ although a member is still subject to discharge its obligation underthe charter. To lift the suspension, a qualified majority vote of the SecurityCouncil is needed.

Expulsion 2/3 vote of those present and voting in GA upon recommendation of qualified

majority of SC on grounds of persistently violating principles in the charterWithdrawal No provision on withdrawal, although there is actually no compulsion for

continued membership if the member feels constrained to withdraw due toexceptional circumstances

4. Organs:

A. General Assembly - consists of all members of organization, each of w/c is entitled tosend not more than 5 representatives & 5 alternates. Each member only has 1 vote.

Functions:1. Deliberative2. Supervisory3. Financial4. Elective5. Constituent

B. Security Council - key organ in maintenance of intl peace & security.

. Functions:1. Maintain int peace & security 2. Investigate disputes & call disputants to settle their differences through peaceful

means3. Recommend methods of adjustment of disputes4. Determine existence of threats to peace, breach of peace, acts of aggression, &

make appropriate recommendations5. Undertake preventive & enforcement actions

Preventive action Enforcement actionProvisional measures to prevent a conflict fromworsening

Deployment of air, sea, and land forces, orin the

Institution of a blockade.

Domestic jurisdiction clause - SC may take necessary steps for settlement of disputesincluding preventive or enforcement action. The only limitation is that the dispute mustbe international, not domestic in character.

C. Economic & Social Council

Composed of 54 members elected by GA for a 3yr term.

Shall exert efforts towards higher standards of living, conditions of economic & socialprogress & devt, solutions of intl economic , soc, health & related problems

D. Trusteeship Council


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Duty of assisting SC & GA in administration of Intl Trusteeship system.

E. Secretariat

Chief administrative organ of UN. Headed by sec gen chosen by GA upon

recommendation of SC. Sec Gen- highest rep of UN & is authorized to act in its behalf; his staffare also international civil servants, & cant receive instructions from any govt or sou rceoutside the UN. He also enjoys right of political initiative

F. Intl Court of Justice

Principal judicial organ of UN. Composed of 15 mem, 9yr term, must be of high moralchar & possess qualify required in their respective countries for appointment to their highest

judicial offices

Jurisdiction of the Court is based on the consent of the parties in accdce w/the optional jurisdiction clause, & the court may decide on interpretation of treaties, any question of intllaw, the existence of facts con stituting breach of intl oblig

G. Belligerent Communities

H. International Administrative Bodies

Certain admin bodies created by agreement among states, may be vested w/ intlpersonality provided they are non-political & are autonomous & not subj to ctrl by any state

>Unlike States w/c possess gen competence, intl org are governed by the principle ofspecialty, that is, they are invested by the Stated w/c create them w/powers, the limits ofw/c are a function of common interest whose promotion those states entrust to them.

I. Individuals

- Objects, not subjects of intl law - Granted a certain degree of intl personality under a number of intl agreements like: - UN Charter provisions, Universal Declaration of Human Rights provision on inherent

dignity & equal & inalienable rights of all members of human family, some treatieslike Treaty of Versailles, w/c confer on individual the right to bring suit against States

before National or intl tribunals


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Fundamental Rights of State

A. Existence & Self- preservation

The most basic & impt right. UN Charter: rt of state to individual & collective SD if anarmed attack occurs against such state, until the SC has taken measures to maintain intl peace& security. Needs: clear showing of grave & actual danger and must be limited by necessity

Aggression: use of armed force by a state agaist sovereignty, territorial integrity, orpolitical independence of another state inconsistent w/ UN charter. The 1 st use of armed forceby a state in contravention of UN charter is prima facie evidence of an act of aggression.

B. Right to sovereignty & independence

Sovereignty IndependenceTotality of powers, legal competence &privileges of a state arising from customaryintl law, & not dependent on the consent ofanother state

Freedom to conduct foregn relations w/ooutside ctrl.Rt to independence- natural aspiration ofpeople but not an absolute freedom

Intervention- state interferes in the domestic or foreign affairs of another state throughuse of force/ threat of force

C.

Right of Equality

What is really guaranteed is legal or sovereign equality. equal in law, rights ofsovereignty, personality, territorial integrity & political independence respected by others.

Act of State Doctrine

Every sovereign state is bound to respect the independence of every other state, & thecourts of 1 country will not sit in judgment on the acts of the govt of another, done w/in itsterritory. Redress of grievances by reason of such acts must be obtained through the meansopen to be availed of by sovereign powers as between themselves

Doctrine of State ImmunityAs a consequence of independence, territorial supremacy & equality, a state enjoys

immunity from the exercise of jurisdiction (legislative, executive or judicial) by another state,unless it has given consent, waived its immunity, or voluntarily submitted to the jurisdication ofthe court concerned. Neither may its public property be attached or taxed, nor its publicvessels be boarded, arrested or sued.

Based on the principle of par in parem non habet imperium.

Restrictive application of the doctrine

This immunity however is recognized only w/respect to sovereign or public acts of thestate, & cannot be invoked w/ respect to private or proprietary acts.

Immunity extends to diplomatic personnel to the UN, its organs, & specialized agencies,& to intl organizations.

Waiver of immunity1. When state gives consent at the time the proceeding is instituted


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2. When it takes steps relating to the merits of the case before invoking immunity3. When, by treaty or contract, it had previously given consent4. When by law or regulation in force at the time the complaint arose, it has indicated

that it will consent to the institution of the proceedings


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Right To Territorial Integrity &Jurisdiction

A. Territory

Fixed portion on earths surface on w/c the State settles & over w/c it has supremeauthority. The components of the territory of the State are the terrestrial, fluvial, maritime andaerial domains.

B. Land TerritoryModes of acquisition

Discovery &

occupation

Prescription Cession conquest accretion

Territory notbelonging to anyState or terrianullius is placedunder sovereigntyof the claimingstate. Discoveryalone, merelycreates an

inchoate right;Must be followedw/in a reasonabletime by effectiveoccupation &administration.

Acquired throughcontinuous &uninterruptedpossession over along period oftime, just like incivil law. Ininternational lawhowever, there is

no rule of thumbas to the lengthof time needed.Grotius doctrineof immemorial prescription speaks ofuninterruptedpossession goingbeyond memory.

May bevoluntarythrough a treatyof sale, e.g., thesale of Alaska byRussia to the US,or through atreaty ofdonation.

May also beinvoluntary orforced

No longerrecognized mode,as UN charterprohibits use offorce or threatagainst territorialintegrity orpoliticalindependence of

any State.[StimsonDoctrine]

Increase in landarea of Stateeither throughnatural meansor artificiallythrough humanlabor

C. Maritime Territory

1. Internal (national) waters- Bodies of water w/in the land mass such as rivers, lakes canals, gulfs, bays &

straits- Rivers- may be natl, boundary, or international

Thalweg doctrine- for boundary rivers, in the absence of an agreement between theriparian States, the boundary line is laid on the middle of the main navigable channel

Middle of the bridge doctrine- if theres a bridge over a boundary ri ver, boundary line isthe middle or center of the bridge

2. Archipelagic waters


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Vessels may be allowed innocent passage w/in archipelagic waters, but this rt may besuspended after publication, in the interest of intl security. The coastal state may alsodesignate archipelagic sea lanes for continuous, unobstructed transit of vessels.

3. Territorial Sea

Belt of sea between coast & internal waters of coastal state on one hand & high seas onthe other, extending up to 12 nautical miles from low watermark or in the case of archipelagicstates, from baselines

4. Contiguous Zone

Extends up to 12 nautical miles from territorial sea. Technically not part of territory ofstate. Coastal state may exercise limited jurisdiction over contiguous zone, to preventinfringement of customs, fiscal, immigration or sanitary laws.

5. Exclusive Economic Zone

Extends up to 200 nautical miles from low watermark or baselines, as the case may be.

6. Continental Shelf

Sea-bed & subsoil of submarine areas that extend beyond its territorial sea throughoutthe natural prolongation of its land territory to the outer edge of the continental margin doesnot extend to that distance. The coastal state also enjoys the right of exploitation of oil deposits& other resources in the continental shelf.

7. High seas

Treated as res communes or res nullius & thus, are not territory of any particular State.

The traditional view is freedom of high seas

Freedom of navigation refers to the right to sail ships on the high seas, subject only tointl law & laws of the flag state.

Settlement of disputes arising from the UN convention on the Law of the SeaFailing a bilateral settlement, Art. 286 provides that any dispute shall be submitted forcompulsory settlement to 1 of the tribunals having jurisdiction.

D. Air Territory

Air space above the land & waters of the state

In the International Convention on Civil Aviation (Chicago convention)

The contracting parties recognize that every State has complete & exclusive sovereigntyover the airspace above its territory but does NOT include outer space as it is considered as rescommunes. Other States have no rt of innocent passage over the air territory of another State.

5 Freedoms (of air transportation for scheduled International services1. To fly across the territory w/o landing 2. Land for non-traffic purposes 3. Land to put down passenger, mail, mail, cargo of flag territory


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4. Land to take passenger, mail, mail, cargo of flag territory 5. To put down passenger, mail, & cargo from these territories

Outer spaceRules governing high seas apply also to outer space, w/c is considered as res communes .

Under customary int;l law, States have right to launch satellites in orbit over the territorial airspace of other states. Pursuant to Outer Space Treaty of 1967, outer space is free forexploration & use by all states; it cannot be annexed by any State; & may be used exclusivelyf or peaceful purposes

Theories of where outer space begins-lowest altitude for artificial earth satellites to orbit w/o being destroyed by friction

(90kms above earth)-theoretical limits of air flights (84kms)-functional approach, i.e.. that the rules shall not depend on the boundaries set but on

the nature of the activity undertakenE. Jurisdiction

Power/authority exercised by State over land, persons, prop, transactions & events.

Bases of Jurisdiction

Territorial principle

Nationality principle

Protective principle

Universality Passive personality

State mayexercise juris onlyw/in its territory.Exceptionally, itmay have jurisover persons &acts done outsideits territorydepending on thekind of juris itinvokes.No territorial

limit over civilmatters, but thestate, as a GR,has criminal jurisonly overoffensescommitted w/inits territoryexcept overa. Continuingoffensesb. acts prejudicialto the nationalsecurity of statec. universalcrimesd. offenses

State- w/jurisover its nationalsanywhere in theworld, based onthe theory that anational isentitled to theprotection of thestate whereverhe may be.Applies to civilmatters. (art15

NCC) not to crimoffenses

State- w/jurisover actscommittedabroad (bynationals orforeigners) w/care prejudicialto its natlsecurity or vitalinterests.(see Art2 RPC)

State-w/jurisdictionover offensesconsidered asuniversal crimesregardless ofwhere committed& whocommitted them.Univ.crimes-threaten the intlcommunity as a

whole & areconsidered crimoffenses in allcountries,e.g. piracy, juregentium,genocide, whiteslave trade, hi- jacking,terrorism, warcrimes.

State- jurisdiction overcrimes againstits own nationalseven ifcommittedoutside itsterritory. May beresorted to ifother principlesare notapplicable.


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covered byspecialagreement(although this isnow obsolete)

Exceptions from jurisdiction:a. doctrine of state immunityb. acts of state doctrinec. diplomatic immunityd. immunity of the UN, its organs, specialized agencies, other intl org & its officers e. foreign merchant vessels exercising the rt of innocent passage* or arrival under stress**

navigation through the territorial sea of the state for purpose of traversing that seaw/o entering internal waters, or of proceeding to internal waters, or making for thehigh seas from internal waters, as long as it is not prejudicial to the peace, good

order or security of the coastal state. involuntary entrance, may be due to lack of provisions, unseaworthiness of vessel,inclement weather or other force majeure such as pirate pursuit

f. foreign armies passing through or stationed in the territory w/ permission from stateg. warships & other public vessels of another state operated for non-commercial purposes.

They are generally immune from local jurisdiction under the fiction that they are floatingterritory of the flag state. Their crew mem are immune from jurisdiction when onshore duty butthis immunity will not apply if the crew members violate local laws while on furlough or off-duty

Jurisdiction over maritime territory

a. over internal waters

Same juris as over the land area, since internal waters are deemed assimilated in landmass. In case of foreign merchant vessels docked in a local port or bay, the coastal Stateexercises jurisdiction in civil matters, but crim juris is determined accdg to the:

I. English Rule

Coastal state shall have jurisdiction over all offenses committed on board vessel, exceptthose w/c do not compromise the peace of the port

II. French ruleFlag state w/juris over all offenses committed on board the vessel, except those which

compromise the peace of the port

b. over archipelagic waters

Same rule as in internal waters, save for innocent passage of merchant vessels througharchipelagic sea lanes

c. over territorial sea

Crim juris over foreign merchant vessels shall be determined by application of either theEnglish rule or French rule.


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Innocent passage & involuntary entrance are recognized exceptions, provided that in case ofinvoluntary entrance, the distress on the vessels must be real.

d. over contiguous zone

Coastal State may exercise ctrl necessary to prevent infringement of its customs, fiscal,immigration & sanitary regulations, & punish the said infringement

e. over exclusive economic zone

Coastal State has sovereign rts over EEZ for exploring & exploiting, conserving &managing the natural resources, whether living or non-living, of the seabed, subsoil, &superjacent waters, as well as production of energy from water, current & wind. Other Statesshall have freedom of navigation & over-flight, to lay submarine cables & pipes, etc.

f. over continental shelf

State enjoys right of exploitation of oil deposits & other resources in such

g. over high seas

Juris may be exercised by the State on the high seas over the ff:1. Its vessels2. pirates3. those engaged in illicit traffic4. in the exercise of the rt to visit & search5. hot pursuit doctrine

Jurisdiction over other territories (extra-territorial jurisdiction)A state may, by virtue of customary or conventional law, extend its jurisdiction to

territory not w/in its sovereignty in the ff cases:a. assertion of personal jurisb. through relations w/other statesc. consequence of waiver of jurisdictiond. through principle of exterritorialitye. through enjoyment of easements & servitudes

Rome Statute of the Intl Crim Court (ICC)

-Adopted in July 98 by a conference of states in rome -Court comes into existence once 60 States have ratified the statute-Phils signed ICC on 28 Dec 2000-As of 1-4-00, 124 countries signed the statute although only 25 have ratified the same.-Jurisdiction of the court: limited to most serious crimes of concern to the international

community as a whole.: genocide, crimes angst humanity, war crimes, crimes of aggression


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Right of Legation

A. Right of legation

A.k.a. right of diplomatic intercourse. This refers to the right of State to send & rcvdiplomatic missions, w/c enables the States to carry on friendly intercourse. It is not a naturalor inherent right, but exists only by common consent. No legal liability is incurred by the statefor refusing to send or recv diplomatic rep. Governed by Vienna Convention on DiplomaticRelations

Agents of diplomatic intercoursea. Head of state b. Foreign office

Establishment of Resident MissionsStates carry on diplomatic intercourse through permanent missions established in capitals ofother states. Mission is composed of:

a. Head of mission-ambassadors/ nuncios, envoys/ministers/internuncios, charges daffaires

b. Diplomatic staffc. Administrative & technical staffd. Service staff

-engaged in the domestic services of the mission

Diplomatic corpsDoyen or head of this body- Papal Nuncio or oldest ambassador, or in absence of amb, theoldest minister plenipotentiary

Appointment of envoysIn Phils., it is the President who appoints, sends & instructs the diplomatic & consularrepresentatives, & his prerogative to determine the assignment of countrys diplomatic repcant be questioned

Functions & dutiesa. Representing the sending state in the rcvingb. Protecting in the receiving state the interests of the sending state & its nationals, w/in

the limits allowed by intl law c. Negotiating w/the govt of the rcving state d. Ascertaining by all lawful means the conditions in the rcving state & reporting these to

the sending statee. Promoting friendly relations bet.the sending state & rcvng state & developing their eco,

cultural & scientific rel

Diplomatic immunities & privileges

a.

Personal inviolabilityb. Inviolability of premises & archivesc. Rt of official communicationd. Immunity from local jurise. Exemption from taxes & customs dutiesf. Other privileges w/c include the freedom of mvmt & travel in the territory of the

receiving state; exemtion from all personal services & military obli


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Duration of immunities & privilegesEnjoyed from the moment he enters the territory of rcvng state & shall cease only the momenthe leaves the country, or on expiry of a reasonable time in w/c to do so; although w/respect toofficial acts, immunity shall continue indefinitely.

Available even in transitu when traveling through a 3rd

state on the way to or from the receivingstate

Waiver of Immunitiesmade only by the govt of sending state if it concerns the immunities of the head of mission; inother cases, the waiver may be made by either the govt or by the chief mission. Waiver of thisprivilege does not include waiver of immunity in respect of execution of judgment; a separatewaiver for the latter is necessary

Termination of Diplomatic missionDeath, resignation, removal or abolition of office, recall by sending state, dismissal by rcvngstate, war between rcvng & sending state, or extinction of the state

B. Consular relationsConsuls- state agents residing abroad for various purposes but mainly in the interest of

commerce & navigationKINDS OF CONSULS:

a. Consules missi-Professional & career consuls, & nationals of appointing state

b. Consules electi-Selected by appointing state either from its own citizens or from among nationals abroad

RANKSa. Consul generalb. Consulc. Vice consuld. Consular agent

APPOINTMENTLetters patentExequatur

FUNCTIONSCommerce & navigation, issuance of visa, etc

IMMUNITIES & PRIVILEGES Freedom of communication in cipher or otherwise Inviolability of archives but not of the premises where legal processes may be served

& arrests made Exempt from localjurisdiction for offenses committed in the discharge of official

functions Exempt from testifying on official communications or on matters pertaining to

consular functions Exempt from taxes, customs duties, military/jury service May display their natl flag in the consulate

TERMINATION OF CONSULAR MISSIONWithdrawal of exequatur; extinction of state; war


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Treaties

Treaty acc. to the 1969 Vienna Convention on the Law of Treaties - an internationalagreement concluded bet States in written form and governed by international law, whetherembodied in a single instrument or in two or more instruments, and whatever its particulardesignation.

Other names for international agreements: convention, pact, protocol, agreement,arrangement, accord, final act, general act, exchange of notes.

Municipal Law concept: executive agreement is not a treaty (Commish of Customs v. Eastern

Sea Trading). International law standpoint: equally binding as treaties.

Form.Art. 2 of the Vienna Convention : treaties should be in writing.Art. 3: an unwritten treaty does not affect its legal force.

1969 Vienna Convention: only treaties executed bet States1986 Vienna Convention on Treaties for Internatl Orgs: treaties bet States and Intl Orgs

Requisites for validity.a. Treaty-making capacityb. Competence of the rep/organ concluding the treatyc. Parties must freely give consentd. Object and subject matter must be lawfule. Ratification in accordance with constitutional processes of the parties concerned

Doctrine of Unequal Treaties. Treaties which have been imposed thru coercion or duressof an unequal character is VOID.

Doctrine of Jus Cogens. Customary international law has the status of a peremptory norm of international law, accepted and recognized by the international community of states as arule from which no derogation is permitted. Treaty that contravenes jus cogens norms areinvalid.

Treaties and Executive Agreements. Treaties require Senate concurrence for validity. Theyrefer to a) basic political issue, b) change in national policy, c) permanent internationalarrangements. Executive Agreements do not require concurrence and refer to a) adjustment ofdetail carrying out well-established national policies and b) temporary arrangements.

a. Bayan v. Exec Sec. We cannot require the US to submit the V.F.A. to the US Senate forconcurrence. It is inconsequential if US treats the VFA as a mere exec agreement bec.under international law, executive agreements are just as binding as treaties.

b. Memo Circ No. 89. W/N an international agreement is purely an executive agreement

matter referred to DFA Secretary who shall make the appropriate recommendation tothe President. c. Exchange of Notes. A record of a routine agreement similar to the private law contract.

Agreement consists of the exchange of two documents, each of them signed by the repof the other. Signatories are either government Ministers, diplomats or departmentheads. This technique is resorted to bec of its speedy procedure and to avoid process oflegislative approval.


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2. Treaty-making Process.a. Negotiation reps usually have the credentials known as pleine pouvoirs (full powers)

emanating from competent authority that designates a person to represent. Representativecan also either be a) the Head of State, b) Head of Government, c) Foreign Minister, d) head

of diplomatic missions, or e) rep accredited to an international conference or organization. b. Signing of the treaty. Principle of alternat order of naming the plenipotentiary is varied.

Each party is named and its plenipotentiary signs muna his own copy. c. Ratification. State expresses its willingness to be bound by the treaty thru confirmation.

Our President ratifies the treaty, subject to the concurrence of 2/3 of all the members ofthe Senate . President is vested with authority to a) deal with foreign states, b) extend orwithhold recognition, c) maintain diplomatic relations, d) enter into treaties, and otherwisee) transact the business of foreign relations. Kahit signed na by the rep, President still hasthe discretion of w/n to ratify a treaty. Without his signature, the Exec Sec or DFA Sec maynot be compelled by mandamus to transmit copy of the treaty for Senate concurrence.

d. Entry into force. In the absence of a provision that states when it shall take force, the treatyenters into force as soon as the consent of all parties to bound is established.

Accession/Adhesion non-signatory State becomes a party to a treaty upon invitation orpermission of the contracting parties.

Reservation unilateral statement where a State purports to exclude or modify the legaleffect of certain provisions of a treaty. If the reservation is compatible with the object andpurpose of the treaty, State remains a party.

When non-signatories may be bound by a treaty. Pacta tertiis nocent nec prosunt. Treatiescannot impose obligations upon States not parties to them. Exceptions: a) Accession/Adhesionand b) Most Favored Nation Clause where a contracting State entitled to the clause may claimthe benefits in a separate agreement.

Pacta sunct servanda , treaties must be observed in good faith.State may even modify local laws to make them conform to the treaty and avoid internationalembarrassment. In the Philippines, treaties may be declared invalid if contrary to theConstitution.

Rebus sic stantibus, contracting States o bligations under a treaty terminates when a vital or

fundamental change of circumstances occurs. State is allowed to unilaterally withdraw from atreaty because of the disappearance of the foundation upon which it rests. RULE DOES NOTOPERATE AUTOMATICALLY.Requisites for valid invocation :

1) Change is so substantial that foundation of the treaty has altogether disappeared2) Change is unforeseen or unforeseeable at the time of the perfection of the treaty3) Change was not caused by the party invoking the doctrine4) Doctrine is invoked within a reasonable time5) Duration of the treaty is indefinite6) Doctrine cannot operate retroactively, i.e. it must not adversely affect provisions

already complied with.

Interpretation of Treaties must be in good faith, in accordance with the ordinary meaning givento the terms in their context and in light of its objects and purposes.

Amendment/Modification require the consent of all parties, but if allowed by the treaty itself,two States may modify a provision only insofar as they are concerned.

Grounds for Termination of Treaties


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a) Expiration of term or Withdrawal of a partyb) Extinction of one of the parties in a bipartite treaty when the rights and obligations

under the treaty would not devolve upon the State succeeding the extinct Statec) Mutual agreement of all partiesd) Denunciation or desistance by one of the parties (Right of Denunciation)

e) Supervening impossibility of performancef) Conclusion of a subsequent inconsistent treatyg) Loss of the subject matterh) Material breach or violation of the treatyi) Rebus sic stantibus

j) Outbreak of war between the parties UNLESS the treaty precisely relates to the conductof war

k) Severance of diplomatic relations (only if indispensable for application)l) Doctrine of jus cogens or the emergence of a new peremptory norm


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Nationality and Statelessness

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

1930 Hague Convention:1) State determines who its nationals are under its own law.2) Any question as to w/n a person is a national of a State shall be determined in accordance

with the law of that State.

Modes of acquiring nationality1) Birth jus sanguinis (by blood) and jus soli (by place of birth)2) Naturalization thru a) marriage, b) legitimation, c) option/election, d) acquisition of

domicile, e) appointment to govt office, f) grant on application. In the Philippines ,

naturalization is thru 1) judicial process, 2) legislative process, 3) election, or 4) marriage.However, there is no oblig ation on the part of the State to recognize a persons newlyacquired nationality. Municipal law may een prohibit the renunciation of ones nationality,i.e. the doctrine of indelible allegiance.

3) Repatriation recovery of nationality by individuals who were natural-born citizens buthave lost their nationality. RA 8171 on repatriation of women who lost Filipino citizenshipby marriage to aliens and repat of former NB-Filipinos who lost their Filipino citizenship.

4) Subjugation5) Cession

Loss of Nationality1) Release e.g. German nazis2) Deprivation e.g. Filipinos entering into military service of another State3) Renunciation e.g. C.A. No. 634) Substitution, when former nationality is ipso facto lost by naturalization abroad.

Multiple Nationality more than one nationality because of concurrent application of themunicipal law of two or more States. In the Philippines, dual allegiance is inimical to nationalinterest. Sec. 5, Art. IV.

Solutions to multiple nationality in the 1930 Hague Convention on the Conflict of NationalityLaws

a) Person may be regarded as its national by each of the Statesb) In a third State, a person shall be treated as if he only had one nationality. Principle of

effective nationality: either where he habitually and principally resides or where heappears in fact to be most closely connected.

c) Person may renounce one of them with the permission of the renounced State.Permission shall not be refused if person has habitual residence abroad.

Statelessness - s tatus of having no nationality as a consequence of being born without it, or asa result of deprivation or loss of nationality

1954 Convention Relating to the Status of Stateless PersonsStateless Persons are granted, for as long as it is favorable to that accorded to the Statesnationals:

a) Freedom to practice their religionb) Access to the courts of lawc) Rationing of products in short supply


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d) Elementary educatione) Public relief and assistancef) Labor legislation and social security

Also accorded treatment relative toa) Acquisition of movable and immovable property

b) Right of association in non-poli and non-profit associations and trade unionsc) Gainful employment and practice of liberal professionsd) Housing and public education other that elementary educatione) Freedom of movement


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Treatment of Aliens

General Rule, no State is under obligation to admit aliens (flowing from its right of existenceand as an attribute of sovereignty). State has the power to regulate the entry and stay of aliens.

Expulsion or deportation predicated on the ground that 1) the stay of the alien is a menace tothe security of the State, 2) his entry was illegal, 3) permission to stay has expired, or 4) he hasviolated any limitation or condition prescribed for his admission and continued stay.

Reconduction is the forcible conveying of aliens back to their home State. Destitute aliens,vagabonds, aliens without docs, alien criminals, etc may be reconducted to the frontier withoutany formalities.

Doctrine of State Responsibility. State is under obligation to make reparations to another Statefor the failure to fulfill its primary obligation to afford, in accordance with international law, theproper protection due to the alien national of the latter State. State may also be held liable forinjuries and damages sustained by the alien while in the territory of the State if:

1) The act or omission constitutes an international delinquency amounting to anoutrage, to bad faith, willfull neglect of duty or insufficiency of government action*

2) The act or omission is directly or indirectly imputable to the State State does notmake reasonable efforts to prevent injury, or having done so unsuccessfully, fails torepair such injury.

a. Acts of Government Officials acts of primary agents of the State give rise todirect state responsibility . If officer acts beyond his authority, it is an act of aprivate individual.

b. Acts of private individuals must be shown that there was an actual or tacitcomplicity of the government in the act, either by directly approving it or in thepatent negligence in taking measures to prevent injury. Claimant has the burdenof proving negligence.

3) Injury to the claimant State indirectly because of damage to its national

*International Standard of Justice standard of the reasonable State Doctrine of Equality of Treatment laws are applicable not only to aliens but to nationals aswell

Enforcement of Aliens Claim 1) Exhaustion of local remedies requirement may be dispensed with if there are no

remedies to exhaust, the courts are corrupt, there is no adequate machinery for theadministration of justice, or the international delinquency results from an act of State.

a. Calvo Clause stipulation by which an alien waives or restricts his right to appealto his own state and agrees to limit himself to the remedies available under locallaws.

2) Resort to diplomatic protection after exhaustion, alien must avail of assistance of hisstate

a.

Tie of nationality must exist from the time of injury until the time claim is finallysettled. b. UN may file a diplomatic claim on behalf of its officials

Modes of Enforcement of ClaimsNegotiation, or if this fails, arbitration or judicial settlement.


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When responsibility of State is established, he must make reparation thru restitution,satisfaction, compensation, or all three of these together.

Extradition is the surrender of a person by one state to another state where he is wanted forprosecution or, if already convicted, for punishment. Surrender is made at the request of the

latter state on the basis of an extradition treaty. Deportation is the expulsion of an alien who isconsidered undesirable by the local state. Deportation is the unilateral act of the local state andis made in its own interests.

In the absence of an extradition treaty, the local state may grant asylum to the fugitive. Ifsurrender is made, asylum is merely a gesture of comity.

Fundamental principles of Extraditona) Based on consent in a treaty or as an act of goodwillb) Principle of speciality extradited fugitive may be tried only for the crime specified in

the request for extradition and crime is included in the list of offenses in the extradittreaty

Non -list type of extradition treaties offenses punishable under both states byimprisonment of one year or more are deemed included in the list of offenses.

c) Any person may be extradited whether a national of the requesting state or the stateof refuge

d) Political and religious offenders are generally not subject to extradition Political 2 or more parties in the state, each seeking to impose the government

of their own choice on the other Attentat clause the murder of the head of state or any member of his family is

not a political offense. Neither is genocide. e) Offense must have been committed within the territory or against the interest of the

demanding statef) Act for which the extradition is sought must be punishable in both the requesting and

requested states (The Rule of Double Criminality)

Procedure for Extradition

Government of Hongkong v. Olalia constitutional right to bailnow applies to extradition proceedings. The worth of theindividual person and the sanctity of human rights is givenprimacy. Both deportation and extradition are administrativeproceedings where the innocence or guilt of the detainee is not in issue.

Standard in granting bail clear and convincing evidence that he is not a flight risk and willabide with all the orders and processes of the extradition court.

Abduction of the fugitive in the state of refuge is not allowed, as it constitutes a violation of theterritorial integrity of the state of refuge. If abduction is effected with the help of the nationalsof the state of refuge, the state of refuge cannot later demand to return of the fugitive.Savarkar case .

1) REQUEST

Accompanied with necessarypapers to determine identity of

the wanted person

2) JUDICIAL INVESTIGATION

State of refuge to conduct investigation toascertain if a) crime is covered by the treaty,and b) there is a prima facie case against the

fugitive according to its own laws

Made thru diplomaticchannels to the state of refuge

3) WARRANT OF SURRENDER DRAWN

Fugitive Is delivered to the state of refuge


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Extradition treaties of the Philippines1976 Indonesia1988 Australia1989 Canada1989 Switzerland

1990 Micronesia

Letters Rogatory formal communication from a court in which an action is pending, to aforeign court, requesting that the testimony of a witness residing in the foreign jurisdiction betaken under the direction of the court, addressed and transmitted to the court making therequest. Parang international bonggang deposition! Sec. 12, Rule 24.

Asylum the power of the state to allow an alien who has sought refuge from prosecution orpersecution to remain within the territory and under its protection. HAS NEVER BEENRECOGNIZED AS A PRINCIPLE OF INTERNATIONAL LAW.

Principles of Asylum1) Territorial exists only when stipulated in a treaty or justified by established usage.

Depends on the liberal attitude of the receiving state, on the ground of territorialsupremacy

2) Diplomatic granted within narrowest limits or when life or liberty of person isthreatened by imminent violence

In the Philippines, diplomatic asylum cannot be granted EXCEPT to members of the official andpersonal household of diplomatic representatives. Refuge may be granted however, tofugitives whose lives are in imminent danger from mob violence (humanitarian grounds)

RefugeesAny person who is outside the country of his nationality, or if he has no nationality, the countryof his former habitual residence, due to a well-founded fear of prosecution(?? Parang typo) byreason of his race, religion, nationality, political opinion. Because of such fear, he is unable orunwilling to avail of the protection of his government or his former habitual residence.

Elements:1) Outside the country of his nationality OR if stateless, outside habitual residence2) Lacks national protection

3)

Fears persecution

Refugee is de jure/de facto a stateless individual.Refugee Convention of 1951 does not deal with admission but with non-foulement : nocontracting state shall expel or return a refugee in any manner whatsoever to the frontiers ofterritories where his life or freedom is threatened.


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Settlement of DisputesInternational dispute actual disagreement between States regarding the conduct to be takenby one of them for the protection or vindication of the interests of the other. A situation is theinitial stage of a dispute.

A. Pacific or amicable modes (art. 3 of UN charter) Parties to any dispute, thecontinuance of which is likely to endanger the maintenance of international peace andsecurity, shall first of all seek a solution by:1. Negotiation states settle their differences through an exchange of views between

diplomatic agencies2. Enquiry Ascertainment of the pertinent facts wand issues in a dispute3. Tender of good offices where a third party either alone or with others offers to

help in the settlement of a dispute and accepted.4. Mediation A third party offers to help with a solution usually based on a

compromise. Offers a solution not merely bring the parties together as in goodoffices.

5. Conciliation Active participation of a3rd party whose services are solicited by thedisputants in t he effort to settle the conflict but the conciliators recommendationsare not binding.

6. Arbitration Solution of a dispute by an impartial third party usually a tribunalcreated by the parties themselves under a charter known as a compromis .

7. Judicial settlement - Similar to arbitration in the nature of the proceedings and in

the binding character of the reward.Judicial Settlement Arbitration

Judicial body is pre-existing Ad hoc

Jurisdiction is usually compulsory andlaw applied is independent of the will ofthe parties

Not so

Lodged in the ICJ Any 3 rd party

8. Resort to regional agencies or arrangements parties may, on their own volition, orat the instance of the organization itself, assume the obligation of settling thedispute

9. Or other peaceful means of their own choice

B. Hostile Methods

1. Severance of diplomatic relations2. Retorsion unfriendly by lawful coercive acts done in retaliation for unfair

treatment and acts of discrimination of another state ( the levy of high

discriminatory tariffs on goods)3. Reprisal unfriendly and unlawful acts in retaliation for the reciprocal unlawful acts

of another state. Reprisal may take the form ofa. Freezing of the assets of the nationals of the other stateb. Embargo forcible detention or rsequestration of the vessels and other property

of the offending state


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c. Pacific Blockade prevention of entry to or exit from the ports of the offendingstate by means of communication and transportation

d. Non-intercourse (refraining to engage in coitus hehehe joke lang) suspensionof all intercourse with the offending state particularly in matters of trade andcommerce

e. Boycott (less than 30% of the students in a class attended joke lang ulit) concerted suspension of commercial relations with the offending state withparticular reference to a refusal to purchase goods

C. Role of the United nations when none of the above-mentioned methods succeeds insettling the dispute, the Un may be asked or may decide on its own authority to take ahand in the settlement. Addressed to the Security Council, but may be taken over by theGeneral Assembly under certain conditions.

1. Security Council- jurisdiction to intervene in all disputes affecting:a. International peace and security;b. All disputed, which although coming under the domestic jurisdiaciton clause have

been submitted to it by the parties for settlement May be brought to Security Council itself, General Assembly, Sectretary General,

any member of the UN or any party to the dispute.

i. Security council will recommend appropriate measures considering anyamicable measures already adopted by the parties or that the dispute bereferred to the ICJ

ii. If unsuccessful, Security Council itself may recommend such terms of

settlement as it may deem appropriateiii. If rejected, the Security Council may take:

a. Preventive Actionb. Enforcement action

2. General Assembly if the Security Council, because of lack of unanimity, fails to exerciseits primary responsibility to maintain peace and security, the General Assembly shallconsider the matter immediately, with a view to making recommendations to themembers for collective measure, including the use of armed forces.


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4. Participants in Wara. Combatants those who engage directly in the hostilities

1. Non-privileged spies, who under false pretenses try to obtain vital informationfrom the enemy ranks, who when caught are not considered prisoners of war

2. Privileged when captured, enjoy the privileges of prisoners of war.

a. Regular Armed Forcesb. Ancillary servicesc. Those who accompanied armed forcesd. Levees en massee. Franc Tireurs/guerillasf. Officers and crew of merchant vessels who forcibly resist attack

Rights of POW treated humanely, no torture, allowed to communicate withfamilies, receive food, clothing, religious articles, etc.

b. Spiesc. Mercenaries

i.

Specially recruited to fight for a particular armed conflictii. Takes direct part in the hostilitiesiii. Motivated by desire to gain

5. Conduct of Hostilitiesa. Principle of Military Necessity Belligerent may employ any amount of force

to compel the complete submission of the enemy with the least possible lossof lives and money

b. Principle of Humanity Prohibits the use of any measure that is notabsolutely necessary for purposes of war

c. Principle of Chivalry Prohibits belligerents from the employment ofperfidious or treacherous methods, such as the illegal use of Red Crossemblems.

Belligerent occupation temporary military occupation of the enemy-s territory during thewar. Maintains effective control and military superiority therein, being able to send in case ofattack, sufficient forces to assert its authority within a reasonable time.

1. Effects no change in sovereignty but the exercise of the powers of sovereignty issuspended.

2. Rights and duties of belligerent occupanta. Re-establish or continue the processes of orderly administration including

enactment of lawsb. Adopt measures for the protection of the inhabitantsc. Requisition goods and services in non-military projectsd. Demand taxes and contributions to finance military and local administrative needs.e. Issue legal currencyf. Use enemy property, whether public or private, but private property is subject to

indemnification or return at the end of the war.

3. Right of Angary right of a belligerent state, in cases of extreme necessity to destroy oruse neutral property on its own or on enemy territory, or on the high seas.

Non-hostile intercourse


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1. Flag of truce White in color, indicates the desire to communicate with the enemy,agent, called parlemetaire , enjoys inviolability and is entrusted with the duty ofnegotiating with the enemy.

2. Cartels agreements to regulate intercourse during the war, usually on the exchange ofprisoners of war

3. Passport written permission given by the belligerent government to the subject of theenemy to travel generally in belligerent territory

4. Safe-conduct Permission given to an enemy subject or to an enemy vessel allowingpassage between defined periods

5. Safeguard- protection granted by a commanding officer either to enemy persons orproperty within his command, usually with an escort or convoy of soldiers providing theneeded protection

6. License to trade permission given by competent authority to individuals to carry ontrade though there is a state of war

Suspension of Hostilities

1. Suspension of Terms temporary cessation of hostilities by agreement of the localcommanders for such purposes as gathering of the wounded and burial of the dead

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

3. Cease-fire unconditional stoppage of all hostilities, usually ordered by an internationalbody

4. Truce Conditional cease-fire for political purposes5. Capitulation- surrender of military forces, places, or districts, in accordance with the

rules of military honor

Termination of War1. Simple cessation of hostilities Principle of uti possidetis, with respect to property and

territoty possessed by the belligerents, is applied2. Conclusion of a negotiated treaty of peace3. Defeat of one of the belligerents followed by a dictated treaty of peace or annexation of

conquered territory

Postliminium the revival or reversion to the old laws and sovereignty of territory which hasbeen under belligerent occupation once control of the belligerent occupant is lost over theterritory affected

1. Uti Possidetis allows retention of property or territory in the belligerents actualpossession at the time of the cessation of hostilities.

War Crimes acts for which soldiers or other individuals may be punished by the enemy oncapture of the offender

1. War Criminal any person, whether a civilian or a member of the armed forces of thestate, who commits an act that violates a rule of international law governing armedconflicts

Neutrality and Neutralization

Neutrality Neutralization


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Non-participation, directly or indirectly, in awar between contending belligerents

The result of treaty wherein the conditions ofthe status are agreed upon by the neutralizedstate and other signatories.

Exists only during war- governed by law of thenations

Exists both in times of peace and war-governed by the agreement into by and

between the parties.

Non belligerency midway between Neutrality and Neutralization. Sometimesbeen used t describe the status of a state which did not take part in militaryoperations but which did not observe the duties of a neutral. Not recognized inInternational Law.

Rules of Neutrality Neutrals have the right and duty to:1. Abstain from taking part in the hostilities and from giving assistance to either

belligerent by:

-

Sending of Troops- Official grant of loans- Carriage of Contraband

Contraband goods, although neutral property, may be seized by a belligerent because theyare useful for war and are bound for a hostile destination. They can be:

- Absolute guns or ammunition- Conditional Food and clothing- Free- List medicines

Doctrine of ultimate consumption goods intended for civilian use which may ultimately findtheir way to and be consumed by belligerent forces may be seized on the way

Doctrine of Infection- Innocent goods shipped with contraband may also be seized

Doctrine of Continuous voyage, Transport - Goods reloaded at an intermediate port on thesame vessel, or reloaded on another vessel or other forms of transportation may also be seizedon the basis of doctrine of ultimate consumption.

2. Prevent its territory and other resources from being used in the conduct ofhostilities. Allowing territory to be used as the base of operations

3. To acquiesence to certain restrictions and limitations which the belligerents mayfind necessary to impose such as:

a. Blockade hostile operation by means of which vessels and aircraft of onebelligerent prevent all other vessels including those of neutral states fromleaving or entering the port or coasts of the other belligerent.

b. Pacific Blockade applied only vessels of blockaded states not to those ofother states.

4. Termination of Neutrality terminates upon conclusion of a treaty of peacebetween the belligerents, or when the neutral state itself joins the war.

Documents

Part 6 Nachura - Public International Law