Public International Law 2003

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POLITICAL LAW REVIEWERSAINT LOUIS UNIVERSITY BAR OPERATIONS

PUBLIC INTERNATIONALLAW

I. Public International Law-is the body of legal rules, which applybetween sovereign states and suchother entities as have been grantedinternational personality.

II. DISTINCTIONS BETWEEN PRIVATEINTERNATIONAL LAW AND PUBLICINTERNATIONAL LAW

PrivateInternational Law

Public InternationalLaw

(1.)issued by apolitical superior for

observance bythose under its

authority

(1.)is not imposedupon but simply

adopted by statesas a common rule of

action amongthemselves.

(2.)consists mainlyof enactments from

the lawmaking

authority of eachstate

(2.)Is derived notfrom any particularlegislation but from

such sources asinternational

customs,international

conventions and thegeneral principles of

law

(3.) regulates therelations of

individuals amongthemselves or with

their own states

(3.)Applies to therelations inter se of

states and otherinternational

persons

(4.)violations ofmunicipal law areredressed throughlocal administrative

and judicialprocesses

(4.)Questions ofpublic international

law are resolvedthrough state-to-state transactions

ranging frompeaceful methods

like negotiations andarbitration to the

hostile arbitramentof force like war.

(5.)breaches of

municipal lawgenerally entailonly individualresponsibility

(5.)Responsibility forinfractions of

international law is

usually collective inthe sense that it

attaches directly tothe state and not to

its nationals

A. DOCTRINE OF INCORPORATIONArt. II, Sec. 2 1987 Phil. Constitution: The

Philippines renounces war as an instrumentof national policy, adopts the generallyaccepted principles of international law aspart of the law of the land and adheres to thepolicy of peace, equality, justice, freedom,cooperation, and amity with all nations.

(JEF, PACo)

B. DOCTRINE OF TRANSFORMATION- the generally accepted rules of

international law are not per se binding uponthe state but must first be embodied in thelegislation enacted by the lawmaking bodyand so transformed into municipal law. Onlywhen so transformed will they becomebinding upon the state as part of its municipallaw.

B. PACTA SUNT SERVANDA in International law, treaties and

executive agreements are equally bindingcommitments of the contracting states underthe maxim pacta sunt servanda. Every statehas the duty to carry out in good faith itsobligations arising from treaties or othersources of international law, and it may notinvoke provisions in its constitution or its lawsas an excuse for failure to perform this duty.

Q: In case of irreconcilable conflict betweena treaty and a municipal constitution, whichshould prevail?

A:1. From the viewpoint of the world,

international law ought to prevail to avoidinternational embarrassment and to preventcharges of International deliquency. TheState must accordingly update its municipalconstitution.

2 From the viewpoint of the State itself, it wouldseem that most constitutions (including ourown) provide that a treaty may be declaredunconstitutional by a States own nationalcourts; though of course it should also beevident that the decision of a national court,while binding on municipal authorities wouldhave NO international effect, for indeed it is asettled principle of international law that asovereign cannot be permitted to set up itsmunicipal law against a claim founded oninternational law.

III. BASIS OF INTERNATIONAL LAW:

A. Law of Nature- there is a natural anduniversal principle of right and wrong,independent of any mutual intercourse orcompact.

Prepared by the POLITICAL LAW SECTION ChiefMARILOU LINDA Assistant ChiefCATHY AQUINO MembersMAY AQUINO, ERRIZABUCU, MARICAR DELA CRUZ, KATHREEN GUNAYON, GRACIELA LEYGO, MARY GRACE MANZANO, RUTCHIE MARANON, and

DINAH MARTINEZ. All Rights Reserved by the SAINT LOUIS UNIVERSITY COLLEGE OF LAW BAR OPERATIONS 2003.

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B. Positivist Theory- the bindingforce of international law is derivedfrom the agreement of sovereignstates to be bound by it. It is not alaw of subordination but ofcoordination.

C. Eclectic Theory- proposes thatboth the law of nature and theconsent of States serve as basis ofinternational law; to the effect thatthe system of international law isbased on the dictate of rightreason as well as the practice ofstates.

IV. Q. Why is Public InternationalLaw observed?

A. States observed PublicInternational Law because of their

1. belief in thereasonableness of the Lawof Nations

2. fear of beingunconventional

3. fear of reprisal from otherstates

V. Functions of Public InternationalLaw:

A. the maintenance of internationalpeace and order;

B. the protection of State rights and offundamental human rights thrusanctions, both peaceful and coercive;C. the economic, social, cultural andtechnological development of statesand such other entities as may bepossessed of an internationalpersonality.

Q: If a Filipino acquires lawfully aparcel of private land and laterbecomes an American citizen, whathappens to his ownership over theland?

A: The persons ownership over the landcontinues but the land, except in the caseof hereditary succession may betransferred only to individuals,corporations or associations qualified to

acquire or hold lands of the public domain.

VI. Sources of International Law:

A. Primary:

1. Treaties- the general ruleis that the treaty to be

considered a direct source ofinternational law, it must beconcluded by sizable number ofstates and thus reflect the will orat least the consensus of the familyof nations.

2. Custom- a practice which hasgrown up between states and hascome to be accepted as binding bythe mere fact of persistent usageover a long period of time. Customis distinguished from usage in thatthe latter while also a longestablished way of doing things bystates, is not coupled with theconviction that it is obligatory andright.

3. General Principles of Law-mostly derived from the law ofnature and are observed by themajority of states because they arebelieved to be good and just (e.g.prescription, estoppel, consent, res

judicata andpacta sunt servanda).

B. Secondary Sources:

1. Decisions of internationaltribunals

2. Writings and teachings of themost highly qualified publicists

EX AEQUO ET BONO this is the basisfor a decision by an international tribunalon the grounds of justice and fairness.

ANGARY- the right of a belligerent state,in time of war, to make use of theproperty of neutral states, located withinthe territorial jurisdiction of thebelligerent, upon payment of reasonableand just compensation.

BLOCKADE - the isolation by a warringnation of an enemy area (as a harbor) bytroops or warships to prevent passage ofpersons or supplies.

PART TWO

I. INTERNATIONAL COMMUNITY body ofjuridical entities which are governed by the law ofnations.

II. A SUBJECT of international law is an entitythat has rights and responsibilities under thatlaw. It has an international personality in that itcan directly assert rights and be held directlyresponsible under the law of nations.

An OBJECT of international law, is merelyindirectly vested with rights and obligations in theinternational sphere (e.g., a Filipino private



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citizen is generally regarded not as asubject but as an object).

III. A STATE may be defined as a groupof people living together in a definiteterritory under an independent

government organized for political endsand capable of entering into internationalrelations.

*The state is a legal concept, the nationis only a racial or ethnic concept.

*The term nation, strictly speaking, asevidenced by its etymology (nasci, to beborn), indicates a relation of birth or originand implies a common race, usuallycharacterized by community of languageand customs.

*The State (or nation) should possess thefollowing elements in order to be regardedas an international person:

1. a permanent population

2. a defined territory

3. government

4. sovereignty or independence(P GIST)

IV. GOVERNMENT is defined as the

agency through which the will of the stateis formulated, expressed and realized.

Q. Is the Vatican or Holy See a State?

A. Yes.1. There are around 1,000 people,

almost all of whom are individualsresiding therein by virtue of theiroffice;

2. There is a definite territory approximately 100 acres;

3. There is a government under the

Pope himself;4. There is independence. The State

of the Vatican City was created bythe Lateran Treaty of Feb. 1, 1922between Italy and the Holy See. Asof January 1, 1994, over 100 statesmaintain diplomatic relations withthe Vatican, an undeniable proof ofits wide acceptance

*An independent state may beneutralized through agreement withother states by virtue of which the latter

will guarantee its integrity andindependence provided it refrains formtaking any act that will involve it in war orother hostile activity except for defensivepurposes.

*Pending determination of whether or notthe belligerent community should be fully

recognized as a state, it is treated as aninternational person and becomes directly subjectto the laws of war and neutrality.

V. INTERNATIONAL ADMINISTRATIVEBODIES

*Certain Administrative Bodies created byagreement among states may be vested withinternational personality when two conditionsconcur, to wit:

1. That their purposes are mainly non-political;2. That they are autonomous, i.e., not subject to

the control of any state (e.g. ILO, IMF, FAO)

A. UNITED NATIONS

*Amendments to the charter shall come into

force for all members of the UN when they havebeen adopted by a vote of 2/3rds of the membersof the General assembly and ratified inaccordance with their respective constitutionalprocesses by 2/3rds of the members of the UN,including all the permanent members of theSecurity Council.

DOMESTIC JURISDICTION CLAUSE Nothing contained in the present charter

shall authorize the UN to intervene in matterswhich are essentially within the domestic

jurisdiction of any state or shall require the

members to submit such matters to settlementunder the present charter; but this principle shallnot prejudice the application of enforcementmeasures.

Q: Can the General Assembly admit anapplicant for membership without thefavorable recommendation of the SecurityCouncil?

A: Art. 4 par 2 of the UN charter states:The admission of any such state to

membership in the UN will be effected by a

decision of the General Assembly upon therecommendation of the Security Council.

SUSPENSION OF MEMBERS

*A member of the UN against which preventive orenforcement action has been taken by theSecurity Council may be suspended from theexercise of its rights and privileges. It is effectedby 2/3rds of those present and voting in theGeneral Assembly upon the favorablerecommendation of at least a member of theSecurity Council, including all its permanent

members. The suspension may be lifted alone bythe Security Council, also by a qualified majorityvote.

EXPULSION OF MEMBERS

*A member which has persistently violated theprinciples contained in the charter may be



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expelled by 2/3rds of those present andvoting in the General Assembly upon therecommendation of the Security Councilby a qualified majority vote.

B. ORGANS OF THE UNITED

NATIONS

1. The GENERAL ASSEMBLY is themost representative of the organs ofthe UN. It consists of all themembers of the Organization, eachof which is entitled to send not morethan 5 representatives and 5alternates as well as such technicalstaff as it may need.

*Each member of the GeneralAssembly has one vote. Decisions

on important questions, such asrecommendations concerninginternational peace and security,election of members of the councils,admissions, suspensions andexpulsion of members, questionsrelating to the trusteeship system,and budgetary matters, are taken by2/3rds of those present and voting.All other matters, including thedetermination of whether a questionis important or not, are decided by amajority of those present and voting.

2. The SECURITY COUNCIL- the keyorgan of the UN in the maintenanceof international peace and security isthe Security Council. It consists of 5permanent members and 10 electivemembers.

*Big Five: (FUR CU)

1. China2. France3. UK

4. US5. Russia

*The permanent members of theSecurity Council were given apreferred position because of thefeeling that they were the statesthat, in view of their prestige andpower, would be called upon toprovide the leadership and physicalforce that might be needed topreserve the peace of the world.

YALTA FORMULA- voting in theSecurity Council is governed by the

Yalta formula as devised at theCrimea Conference andsubsequently incorporated in Art.27 of the Charter. According to thisformula, each member shall haveone vote. But distinction is made

between the Big Five and the non-permanent members in the resolution ofsubstantive questions. Procedural mattersare to be decided by the affirmative voteof any nine or more members. Decisionon non-procedural matters, on the

other hand, requires the concurrenceof also at least nine (9) members, butincluding all the permanentmembers. However, no member,permanent or not, is allowed to voteon questions concerning the pacificsettlement of a dispute to which it isa party.

Characterization of a question is considereda non-procedural matter in the Security Council.

3. The ECONOMIC AND SECURITY COUNCIL

4. The TRUSTEESHIPCOUNCIL

5. The INTERNATIONAL COURT OF JUSTICE- judicial organ of the UN. The Court iscomposed of 15 members who are electedby absolute majority vote in the GeneralAssembly and the Security Council. No twoof them may be nationals of the same State.All questions are decided by a majority ofthe judges present, the quorum being ninewhen the full court is sitting.

6. The SECRETARIAT- the chief administrativeorgan of the UN, headed by the Secretary-

General. The Secretary-General is chosen bythe General Assembly upon therecommendation of the Security Council.One of his duties is to bring to the attentionof the Security Council any matter, which inhis opinion may threaten internationalpeace and security.

OPTIONAL JURISDICTION CLAUSE Art. 36 (1) Statute of the InternationalCourt of Justice

The jurisdiction of the Court comprises all

cases that the parties refer to it and all mattersspecially provided for in the Charter of the UN orin treaties and conventions in force.

PART THREE

I. THE PRINCIPLE OF STATE CONTINUITY

From the moment of its creation, the statecontinues as a juristic being notwithstandingchanges in its circumstances, provided that theydo not result in the loss of any of its essential

elements (people, territory, government,sovereignty). Once its identity as an internationalperson has been fixed and its position in theinternational community established, the statecontinues to be the same corporate personwhatever changes may take place in itsinternational operation and government.(Fenwick)



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II. SUCCESSION OF STATES takesplace when one state assumes the rightsand some of the obligations of anotherbecause of certain changes in thecondition of the latter. The political laws ofthe former sovereign are automatically

abrogated and may be restored only by apositive act on the part of the newsovereign. But non-political laws, such asthose dealing with familial relations, aredeemed continued unless they arechanged by the new sovereign or arecontrary to the institutions of theSuccessor State. All the rights of thepredecessor state are inherited by thesuccessor state but this is not so whereliabilities are concerned. The SuccessorState, in fact, can determine whichliabilities to assume and which to reject

solely on the basis of its own discretion.

III. SUCCESSION OFGOVERNMENTS one governmentreplaces another either peacefully or byviolent methods. As far as the rights of thepredecessor government are concerned,they are inherited intoto by the successorgovernment. Regarding the obligations,distinction is made according to themanner of the establishment of the newgovernment.

The rule is that where the newgovernment was organized by virtue of aconstitutional reform duly ratified by aplebiscite, the obligations of the replacedgovernment are also completely assumedby the former. Conversely, where the newgovernment was established throughviolence, as by a revolution, it maylawfully reject the purely personal orpolitical obligations of the predecessorgovernment but not those contracted by itin the course of official business.

PART FOUR

I. RECOGNITION is a political act of the executivebranch of the government whereinacknowledgement of the claims togovernmental authority of foreign entitiesis made and the legal consequencesflowing from such acknowledgement isadmitted.

II. OBJECTS OF RECOGNITION:

1. State2. Government3. belligerent community

*In every case, it is important that the actconstituting recognition shall give a clearindication of an intention:

1. to treat the new state as such;2. to accept the new government as having

authority to represent the state it purports togovern and to maintain diplomatic relationswith it;

3. to recognize in the case of insurgents thatthey are entitled to exercise belligerent rights.

III. RECOGNITION OF STATES

*The recognition of a new state is the freeact by which one or more states acknowledge theexistence on a definite territory of a humansociety politically organized, independent of anyexisting state, and capable of observing theobligations of international law, and by whichthey manifest therefore their intention toconsider it a member of the international

community.

IV. RECOGNITION OF GOVERNMENTS

*The recognition of the new governmentof a State which has been already recognized isthe free act by which one or several statesacknowledge that a person or a group of personsis capable of binding the state which they claimto represent and witness their intention to enterinto relations with them.

V. THREE KINDS OF DE FACTO

GOVERNMENTS:

1. that which is established by the inhabitantswho rise in revolt against and depose thelegitimate regime;

2. that which is established in the course of warby the invading forces of one belligerent inthe territory of the other belligerent, thegovernment of which is also established;

3. That which is established by the inhabitants ofa state who secede therefrom withoutoverthrowing its government.

*Under the TOBAR or WILSONPrinciple, whichwas expressed in a treaty of the Central AmericanRepublics in 1907 at the suggestion of Foreignminister Tobar of Ecuador and reiterated in 1913by Pres. Woodrow Wilson of the US, recognitionshall not be extended to any governmentestablished by revolution, civil war, coup detat orother forms of internal violence until the freelyelected representatives of the people haveorganized a constitutional government.

*A similar inhibition was applied by the STIMSON

Principle against governments established as aresult of external aggression. It was incumbentupon the members of the League of Nations notto recognize any situation, treaty or agreement,which may be brought about by means contraryto the covenant of the League of Nations or to thePact of Paris.



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*Under the ESTRADA Doctrine, theMexican government declared that itwould, as it saw fit, continue or terminateits relations with any country in which apolitical upheaval had taken place and inso doing it does not pronounce judgment,

either precipitately or a posteriori,regarding the right of foreign nations toaccept, maintain, or replace theirgovernments or authorities.

VI. DISTINCTIONS BETWEENRECOGNITION DE JURE ANDRECOGNITION DE FACTO:

Recognition dejure

Recognition defacto

1. relatively

permanent 1. provisional

2. vests title in thegovernment to itsproperties abroad

2. does not vesttitle in the

government to itsproperties abroad

3. bring about fulldiplomaticrelations

3. limited tocertain juridical

relations

VII. EFFECTS OF RECOGNITION OFSTATES AND GOVERNMENTS:

1. Full diplomatic relations areestablished except where thegovernment recognized is defacto.

2. The recognized state or governmentacquires the right to sue in the courtsof the recognizing state.

VIII. RECOGNITION OFBELLIGERENCY

*Belligerency exists when the inhabitantsof a state rise up in arms for the purposeof overthrowing the legitimate

government.

IX. DISTINCTIONS BETWEENBELLIGERENCY AND INSURGENCY:

BelligerencyInsurgency

1. more serious andwidespread than

insurgency

1. initial stage ofbelligerency

2. directed by a civilgovernment

2. directed bymilitary authorities

3. there are settledrules regarding its

recognition3. usually notrecognized

X. CONDITIONS FOR THERECOGNITION OF BELLIGERENCY:

1. There must be an organized civil governmentdirecting the rebel forces;

2. The rebels must occupy a substantial portionof the territory of the state;

3. The conflict between the legitimategovernment and the rebels must be serious,

making the outcome uncertain;4. The rebels must be willing and able to

observe the laws of war.

*Upon recognition by the Parent State, thebelligerent community is considered a separatestate for the purposes of the conflict it is wagingagainst the legitimate government. Theirrelations with each other shall, thenceforth andfor the duration of the hostilities, be governed bythe laws of war, and their relations with otherstates shall be subject to the laws of neutrality.

The parent state shall no longer be liable for any

damage that may be caused to third states bythe rebel government.

XI. RIGHTS OF A STATE:

1. right of existence and self-defense2. the right of sovereignty and independence3. right of equality4. right of property and jurisdiction5. right of legation or diplomatic intercourse

A. THE RIGHT OF EXISTENCE AND SELF-DEFENSE:

Requisites:1. Presence of an armed attack the mere

apprehended danger or any direct threat tothe state does not, by itself alone, warrantsthe employment by the state of any forceagainst a suspected or potential enemy.

2. The right may be resorted to only upon aclear showing of a grave or actual danger tothe security of the state.

3. The self-defensive measures must be limitedby necessity and kept clearly within it.

AGGRESSION is the use of armed force

by a state against the sovereignty,territorial integrity or politicalindependence of another state, or in anyother manner inconsistent with the charterof the UN.

Article 3, UN Charter

Any of the following acts, regardless of adeclaration of war shall, subject to and inaccordance with the provisions of Article 2,qualify as an act of aggression:

a) The invasion or attackby the armedforces of a State of the territory of another State,or any military occupation, however temporary,resulting from such invasion or attack or anyannexation by the use of force of the territory ofanother State of part thereof;

b) Bombardment by the armed forces ofa State against the territory of another State;



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c) The blockade of the ports orcoasts of a State by the armed forces ofanother State;

d) An attack by the armed forces of

a State on the land, sea or air forces, ormarine and air fleets of another State;

e) The use of armed forces of oneState which are within the territory ofanother State with the agreement of thereceiving State, in contravention of thecondition provided for in the agreement orany extension of their presence in suchterritory beyond the termination of theagreement;

f) The action of a State in allowing

its territory, which it has placed at thedisposal of another State, to be used bythat other State for perpetrating an act ofaggression against a third State;

g) The sending by or on behalf of aState of armed force against another Stateof such gravity as to amount to the actslisted above, or its substantialinvolvement therein.

INDEPENDENCE freedomfrom external control in the

conduct of external and internalaffairs

SOVEREIGNTY is the supremepower of the state to commandand enforce obedience; it is thepower to which, legally speaking,all interests are practicallysubject and all wills subordinate.

*2 ASPECTS OF SOVEREIGNTY

1. INTERNAL SOVEREIGNTY refers tothe power of the state to direct itsdomestic affairs, as when it establishesits government, enacts laws forobservance within its territory, oradopts economic policies.

2. EXTERNAL SOVEREIGNTY signifiesthe freedom of the state to control itsown foreign affairs, as when itconcludes treaties, makes war orpeace, and maintains diplomatic andcommercial relations. (also referred to

as independence)

INTERVENTION an act by whicha state interferes with the domesticor foreign affairs of another stateor states through employment offorce or threat of force.

INTERVENTION IS ALLOWED:

1. when it is exercised as an act of self defense2. when it is decreed by the security council as a

preventive or enforcement action for themaintenance of international peace andsecurity.

3. when such action is agreed upon by a treaty4. when requested from sister states or from the

UN by the parties to a dispute or by a statebeset by rebellion.

DRAGO DOCTRINE: This doctrine wasembodied in the Hague Convention of1907 through the provision that thecontracting powers agree not to haverecourse to armed force for the recoveryof contract debts claimed from thegovernment of one country by thegovernment of another country as beingdue to its nationals.

C. PRINCIPLE OF EQUALITY all the rights ofa state, regardless of their number, must beobserved and respected by the internationalcommunity in the same manner that the rightsof other states are observed and respected.

D. THE RIGHT OF PROPERTY ANDJURISDICTION

TERRITORY- The fixed portion of thesurface of the earth inhabited by thepeople of the state. The territory must bepermanent and indicated with precisionbecause its limits generally define the

jurisdiction of the state. The territory mustbe big enough

to provide for the needs of the populationbut should not be so extensive as to bedifficult to administer or defend fromexternal aggression.

TERRITORY MAY BE ACQUIRED BY:

1. discovery and occupation2. prescription3. cession4. subjugation5. accretion

TERRITORY MAY BE LOST BY:1. abandonment or dereliction2. cession3. subjugation4. prescription5. erosion6. revolution

7. natural causes DISCOVERY AND OCCUPATION is an

original mode of acquisition by whichterritory not belonging to any state, orterra nullius, is placed under thesovereignty of the discovering state. Theterritory need not be uninhabited providedit can be established that the natives arenot sufficiently civilized and can be



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considered as possessing not therights of sovereignty but only rightsof habitation.

Requisites: (1.)Possession(2.)administration

*Open seas and outer space are rescommunes and not susceptible todiscovery and occupation.

The INCHOATE TITLE OFDISCOVERYperforms the functionof barring other states fromentering the territory until thelapse of a reasonable period withinwhich the discovering state mayestablish a settlement thereon andcommence to administer it;

Discovery alone, without any subsequentact, cannot at the present time suffice toprove sovereignty over the Island ofPalmas, on Miangas (Island of PalmasCase)

Title was deemed acquired by France overan island it had formally claimed but hadnever administered. If a territory, by virtueof the fact that it was completelyuninhabited, is, from the first momentwhen the occupying state makes its

appearance there, at the absolute andundisputed possession of that state, fromthat moment the taking of possession isconsidered accomplished and theoccupation is formally completed(Clipperton Island Case).

DERELICTION territory is lost bydereliction when the stateexercising sovereignty over itphysically withdraws from it withthe intention of abandoning italtogether.

Two Conditions:a. Act of withdrawalb. intention to abandon

PRESCRIPTION it requires long,continued and adverse possessionto vest acquisitive title in theclaimant. Significantly, however,there is as yet no rule ininternational law fixing the period

of possession necessary to transfertitle to the territory from the formerto the subsequent sovereign.

CESSION is a method by whichterritory is transferred form onestate to another by agreementbetween them. (sale, donation,

barter or exchange and testamentarydisposition)

SUBJUGATION territory is deemedacquired by subjugation when, havingbeen previously conquered or occupied inthe course of war by the enemy, it isformally annexed to it at the end of thatwar.

ACCRETION is a mode of acquiringterritory based on the principle ofaccessiocedat principali. It is accomplishedthrough both natural or artificialprocesses.

a. gradual and imperceptible deposit of soil onthe coasts of the country through the action

of the waterb. reclamation projectsc. formation of islands

XII. COMPONENTS OF TERRITORY:

1. Terrestrial domain land mass

2. Maritime and fluvial domain consists ofthe bodies of water within the land mass andthe waters adjacent to the coasts of the stateup to a specified limit.

TERRITORIAL SEA may be described asthe belt of waters adjacent to the coasts of

the state, excluding the internal waters inbays and gulfs, over which the stateclaims sovereignty and jurisdiction.

Traditionally, the breadth of the territorialsea was reckoned at 3 nautical miles, or amarine league, from the low-water mark.

CONVENTION ON THE LAW OF THESEA (1994) the new conventionprovides among others for a uniformbreadth of12 miles for the territorial sea,a contiguous zone of 12 miles from theouter limits of the territorial sea, aneconomic zone or patrimonial seaextending 200 miles from the low-watermark of the coastal state.

The ARCHIPELAGO DOCTRINE: Art. 1Sec. 1, 1987 Philippine Constitution Thewaters around, between and connectingthe islands of the archipelago, regardlessof their breadth and dimensions, form partof the internal waters of the Philippines.

3. THE AERIAL DOMAIN is the airspace above

the terrestrial domain and the maritime andfluvial domain of the state, to an unlimitedaltitude but not including outer space.

XIII. RIGHT OF INNOCENT PASSAGE:

PASSAGE means navigation through theterritorial sea for the purpose of:1. Traversing that sea without entering



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internal waters or calling at aroadstead ( used for loading,unloading, anchoring) or portfacility outside;

2. Proceeding to or from internal waters asa call at such roadstead or port facility.

INNOCENT PASSAGE notprejudicial to the peace, goodorder, or security of the coastalstate.

Passage shall be continuous andexpeditious. However, passage includesstopping and anchoring but only insofar asthe same are incidental to ordinarynavigation or are rendered necessary byforce majeure or distress or for thepurpose of rendering assistance topersons, ships, or aircraft in danger ordistress.

XIV. JURISDICTION is the authorityexercised by a state over persons andthings within or sometimes outside itsterritory, subject to certain exceptions.

PERSONAL JURISDICTION thepower exercised by a state over itsnationals.

DOCTRINE OF INDELIBLEALLEGIANCE a person is notallowed to renounce his nationality.

THE STATE CANNOT EXERCISEJURISDICTION EVEN WITHIN ITSTERRITORY OVER:

1. Foreign states, heads of states,diplomatic representatives, andconsuls to a certain degree.

2. Foreign state property, including

embassies, consulates, and publicvessels engaged in non-commercialactivities.

3. Acts of state.

4. Foreign merchant vessels exercisingthe rights of innocent passage orarrival under stress.

5. Foreign armies passing through orstationed in its territories with itspermission

6. Such other persons or property,including organizations like the UN,over which it may, by agreementwaive jurisdiction.

XV. MARITIME AND FLUVIALJURISDICTION

*Civil, criminal and administrative jurisdiction isexercised by the flag state over its public vessels,wherever they may be, provided they are notengaged in commerce.

*Regarding foreign merchant vessels docked in a

local port or bay, jurisdiction is exercised overthem by the coastal state in civil matters, butcriminal jurisdiction is determined according tothe English rule or the French rule.

ENGLISH RULE the coastal state shallhave jurisdiction over all offensescommitted on board on such vessels,except only where they do notcompromise the peace of the port ( wefollow this rule in the Phil.)

FRENCH RULE the flag state shall havejurisdiction over all offenses committed onboard such vessels, except only wherethey compromise the peace of the port.

CONTIGUOUS ZONE in a zone of thehigh seas contiguous to its territorial sea,the coastal state may exercise the controlnecessary to:

a. Prevent infringement of its customs, fiscal,immigration or sanitary regulations ( C FIS R) within its territory or territorial sea;

b. Punish infringement of the above regulationswithin its territory or territorial sea.

*The contiguous zone also extends 12 miles, butfrom the outer limits of the territorial sea.

The CONTINENTAL SHELF refers to:a. the seabed and the subsoil of the submarine

areas adjacent to the coast but outside thearea of the territorial sea, to a depth of 200meters or, beyond that limit, to where thedepth of the superjacent waters admits of theexploitation of the natural resources of the

said areas; andb. to the seabed and subsoil of similar areas

adjacent to the coasts of islands.

The EXCLUSIVE ECONOMIC ZONE or thePATRIMONIAL SEA, extends 200 nauticalmiles from the coast or the baselines. Allliving and non-living resources foundtherein belong exclusively to the coastalstate.

The OPEN SEAS or the high seas are rescommunes and available for the use of all

states for purposes of navigation, flyingover them, laying submarine cables orfishing.

*Pirates are enemies of all mankind and may becaptured on the open seas by the vessels of anystate, to whose territory they may be brought fortrial and punishment.



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*Under the laws of neutrality, the publicvessels or aircraft of a belligerent statemay visit and search any neutralmerchant vessel on the open seas andcapture it if it is found or suspected to be

engaged in activities favorable to theother belligerent.

DOCTRINE OF HOT PURSUIT- Ifan offense is committed by aforeign merchant vessel within theterritorial waters of the coastalstate,its own vessels may pursuethe offending vessel into the opensea and upon capture bring it backto its territory for punishment. Tobe lawful, the pursuit must bebegun before the offending vesselhas left the territorial waters, or thecontiguous zone of the coastalstate with respect to violation ofrights enforceable thereon.Moreover, the pursuit must becontinuous or unabated; otherwise,it will be deemed to have cooledand can no longer be resumed.

XVI. AERIAL JURISDICTION

No foreign aircraft, civil or military, maypass through the aerial domain a state,

without its consent.

XVII. FIVE AIR FREEDOMS:

1. the freedom to fly across foreignterritory without landing;

2. the freedom to land for non-trafficpurposes;

3. the freedom to put down trafficoriginating in the State of the aircraft;

4. the freedom to embark traffic destinedfor the State of the aircraft;

5. the freedom to embark traffic destined

for or to put down traffic originating ina third State.

It is the State of registration of the aircraftthat has jurisdiction over offenses andacts committed on board while it is inflight or over the high seas or any otherarea outside the territory of any state.

*No other state may exercisejurisdiction over such aircraft exceptwhen:

1. the offense has effect on the territoryof such state;

2. the offense has been committed by oragainst a national or permanentresident of such state;

3. the offense is against the security ofsuch state;

4. the offense consists of a breach of anyrules or regulations relating to the

flight or maneuver of aircraft in force in suchstate;

5. the exercise of jurisdiction is necessary toensure the observance of any obligation ofsuch state under a multilateral internationalagreement.

XVIII. EXTERRITORIALITY- refers to theexemption of persons and property from the local

jurisdiction on the basis of international custom.

XIX. EXTRATERRITORIALITY- refers to theexemption of persons from the local jurisdictionon the basis of treaty or convention.

PART FIVE

I. WAR- armed contention between the publicforces of states or other belligerent communities,

implying the employment of violence among theparties as a means of enforcing their respectivedemands upon each other.

*War may also exist even without the use of forceas when a state formally refuses to be governedby the laws of peace in its relations with anotherstate even if actual hostilities have not takenplace between them.War is outlawed. In only two instances is the usedof force allowed, to wit:1. in the exercise of the inherent right of self-

defense;

2. enforcement action that may be decreed bythe Security Council.

II. COMMENCEMENT OF WAR

* The Hague Convention of 1907 providethat hostilities must not commence without aprevious and explicit warning, in the form eitherof a reasoned declaration of war or of anultimatum with conditional declaration. War issupposed to commence on the date specified inthe declaration or on the date it is communicatedto the enemy.

III. EFFECTS OF THE OUTBREAK OF WAR:

1. The laws of peace cease to regulate therelations of the belligerents and are supersededby the laws of war. Third states are governed bythe laws of neutrality in their dealings with thebelligerents.

2. Diplomatic and consular relations between thebelligerents are terminated and their respectiverepresentatives are allowed to return to their owncountries.

3. Treatise of a political nature, such as treatiesof alliance are automatically cancelled, but thosewhich are precisely intended to operate duringwar are activated. Multipartite treatise dealingwith technical or administrative matters, likepostal conventions, are deemed merelysuspended as between the belligerents.



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4. Individuals are impressed with enemycharacter:

a. under the nationality test, if theyare nationals of the otherbelligerent, wherever they may be;

b. under the domiciliary test, if theyare domiciled aliens in the territoryof the other belligerent, on theassumption that they contribute toits economic resources;

c. under the activities test, if, beingforeigners, they neverthelessparticipate in the hostilities in favorof the other belligerent.

6. Enemy public property found in theterritory of the other belligerent at theoutbreak of hostilities is, with certain

exceptions, subject to confiscation.Enemy private property may besequestered, subject to return,reimbursement or other dispositionafter the war in accordance with thetreaty of peace.

IV. COMBATANTS are those engagedirectly in the hostilities while non-combatants are those who do not.

Only the non-combatants may lawfullywage war and are thus subject to direct

attack from the enemy.

V. THE FOLLOWING ARE REGARDEDAS COMBATANTS:

1. The members of the armed forces,whether pertaining to the army, thenavy or the air force.

2. The irregular forces, such as the francstireurs or guerillas, provided, that:

a. they are commanded by a person

responsible for his subordinates;

b. they wear a fixed distinctive signrecognizable at a distance;c. they carry arms openly; andd. they conduct their operations in

accordance with the laws andcustoms of war.

3. The inhabitants of unoccupied territorywho, on approach of the enemy,spontaneously take arms to resist theinvading troops without having hadtime to organize themselves, provideonly that they carry arms openly andobserve the laws and customs of war.

This is often referred to as a levee enmasse.

4. The officers and crew of merchantvessels who forcibly resist attack.

*When captured, combatants are entitledto treatment as POWs, which includesinter alia the rights to be accorded theproper respect commensurate with their

rank, to adequate food and clothing, to safe andsanitary quarters, to medical assistance, to refuseto give military information or render militaryservice against their own state, and tocommunicate with their families.

*Non-combatants do not enjoy identical rightswhen captured but are nevertheless protectedfrom inhumane treatment.

VI. THREE (3) BASIS PRINCIPLES UNDERLIETHE RULES OF WARFARE:

1. Principle of military necessity- under thisprinciple, the belligerents may, subject to theother two principles infra, employ any amountand kind of force to compel the completesubmission of the enemy with the leastpossible loss of lives, time and money.

2. Principle of humanity- prohibits the use ofany measure that is not absolutely necessaryfor the purposes of the war, such as thepoisoning of wells and weapons, theemployment ofdumdum or expanding bulletsand asphyxiating gases, the destruction ofworks of art and property devoted to religiousor humanitarian purposes, the bombarding ofundefended places and attack of hospitalships.

3. Principle of Chivalry is the basis of suchrules as those that require the belligerents togive proper warning before launching abombardment. Ruses and stratagems of warare allowed provided they do not involve theemployment of treacherous methods, such asthe illegal use of Red Cross emblems to throwthe enemy off guard prior to an attack.

VII. THEATRE OF WAR- the place where thehostilities are actually conducted, asdistinguished from the REGION OF WAR, whichis the greater area where the belligerents maylawfully engaged each other. This would comprisetheir own territories and the open seas, excludingonly neutral territories.

*Belligerent occupation does not result intransfer or suspension of the sovereignty of thelegitimate government although it may be at themoment unable to exercise it.

*Private property of municipalities and ofinstitutions dedicated to religion, charity andeducation, and the arts and sciences, even whenstate-owned, shall be treated as private property,and their destruction is expressly forbidden.

JUS POSTLIMINIUM- imports thereinstatement of the authority of thedisplaced government once control of theenemy is lost over the territory affected.

VIII. DEFINITION OF TERMS:



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1. A FLAG OF TRUCE- is a white flagcarried by an individual authorized byone belligerent to enter intocommunications with the other. Thebearer, orparlementaire, is entitled toinviolability as long as he does nottake advantage of his privilegedposition to commit an act of treachery.However, the other belligerent is notobliged to receive o flag of truce.

2. CARTELS- are agreements to regulateintercourse during war on suchmatters as postal and telegraphiccommunication, the reception of flagsof truce, and the exchange ofprisoners. A cartel ship is a vesselsailing under a safe-conduct for thepurpose of carrying exchangedprisoners of war (POWs).

3. PASSPORT- a written permissiongiven by the belligerent government orits authorized agent to the subjects ofthe enemy state to travel generally inbelligerent territory.

4. SAFE-CONDUCT- a pass given to anenemy subject or to an enemy vesselallowing passage between defined

points. This is given either by thebelligerent government or by thecommander of the area within which itis effective.

5. SAFEGUARD- a protection granted bya commanding officer either to enemypersons or property within itscommand.

6. LICENSE TO TRADE- a permissiongiven by the competent authority to

individuals to carry on trade eventhough there is a state of war.

7. SUSPENSION OF ARMS- a temporarycessation of the hostilities byagreement of the local commandersfor such purposes as gathering of thewounded and the burial of the dead.

8. ARMISTICE- the suspension of allhostilities within a certain area (local)or in the entire region of the war(general) agreed upon by the

belligerent governments, usually forthe purpose of arranging the terms ofthe peace.

DISTINCTIONS BETWEEN ARMISTICE ANDSUSPENSION OF ARMS:

Armistice Suspension of

Arms

1. the purpose ispolitical

1. The purpose ismilitary

2. may beconcluded by thecommanders-in-

chief of thebelligerent

governments

2. May be agreed

upon by the localcommanders

3. it is usually inwriting

3. it may be oral

9. CEASE-FIRE an unconditional stoppage ofhostilities by order of an international bodylike the UN Security Council for the purpose ofemploying peaceful means of settling thedifferences between the belligerents.

10. TRUCE- sometimes used interchangeablywith armistice but is now generally regardedas a cease-fire with conditions attached.

11. CAPITULATION- the surrender of militaryforces, places or districts in accordance withthe rules of military honor.

CRIMES UNDER INTERNATIONAL LAW(excerpt from Principles of the NurembergCharter and Judgment):

(a.) Crimes against peace

i. planning, preparation, initiationor waging of a war of aggression or a war in violationof international treaties,agreements or assurances;

ii. participation in a common planor conspiracy for theaccomplishment of any of theacts mentioned under (i).

(b.)War Crimes (e.g ill-treatment of POWs,plunder of private or public property)

(c.) Crimes against humanity (e.g. persecutionon political, racial or religious grounds)

Complicity in the commission of ascrime against peace, a war crime, ora crime against humanity is a crimeunder International law.

PART SIX

I. RIGHT OF LEGATION- right of diplomaticintercourse

II. ACTIVE RIGHT OF LEGATION- the right tosend envoys or establish diplomatic mission



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III. PASSIVE RIGHT OF LEGATION- theright to receive such envoys or missions

*Diplomatic relations are normallyconducted through the head of state, theforeign secretary or minister and the

members of the diplomatic service.

*The head is the embodiment of or atleast represents the sovereignty of hisstate. He is entitled to certain immunitiesand honors befitting his status.

*The foreign secretary is the immediaterepresentative of thehead of state anddirectly under his control as such, he canmake binding declarations on behalf of hisstate on any matter falling within hisauthority ( e.g. recognition of states or

governments and the settlement ofinternational claims against the state).

IV. DIPLOMATIC ENVOYS:

(1.) Ambassadors or nunciosaccredited to heads of state.

(2.) Envoys, ministers or internunciosaccredited to heads of state.

(3.) Chargs daffaires accredited toministers for foreign affairs.

*The diplomatic corps is a body consisting

of the different diplomatic representativeswho have been accredited to the samelocal or receiving state. It is headed by adoyen du corps, who, by tradition, is theoldest member with the highest rank or, inCatholic countries, the Papal Nuncio. Theappointment of diplomats is not merely amatter of municipal law because thereceiving state is not obliged to acceptany representative who is persona nongrata to it.

PERSONA NON GRATA- inInternational Law and diplomaticusage , a person not acceptable(for reasons peculiar to himself) tothe court or government to, whichit is proposed to accredit him in thecharacter of an ambassador orminister.

V. AGREATION- by means of whichinformal inquiries are addressed to thereceiving state regarding a proposeddiplomatic representative of the sending

state. It is only when the receiving statemanifests its agrment or consent, alsoinformally, that the diplomaticrepresentative is appointed and formallyaccredited.

The envoy is generally armed withthe following papers:

1. A LETTER OF CREDENCE (lettre decreance)- this gives the name of therepresentative, his rank, the character andgeneral object of his mission; it alsocontains a request for favorable receptionand full credence; it is sealed, but theambassador is furnished several carboncopies (or photocopies thereof).

2. A DIPLOMATIC PASSPORT (thisauthorizes his travel and describes bothhis person and his office);

3. INSTRUCTIONS- special diplomaticagents receive a document of general fullpowers (pleinspouvoirs) with authority tonegotiate on extraordinary or specialbusiness;

4. CIPHER/CODE/ SECRET KEY- (for

communication with his country).

DIPLOMATIC FUNCTIONS:

1. Representing the sending state in thereceiving state.

2. Protecting in the receiving state theinterests of the sending state and itsnationals.

3. Negotiating with the government of thereceiving state.

4. Ascertaining by all lawful meansconditions and developments in the

receiving state and reporting thereon tothe government of the sending state.5. Promoting friendly relations between the

sending and receiving states anddeveloping their economic, cultural andscientific relations.

VII. DIPLOMATIC IMMUNITIES ANDPRIVILEGES:

1. PERSONAL INVIOLABILITY- the personof a diplomatic agent shall be inviolable.He shall not be liable to any form of arrest

or detention. The receiving state shalltreat him with due respect and shall takeall appropriate steps to prevent any attackon his person, freedom or dignity.

2. IMMUNITY FROM JURISDICTION- theDiplomatic Convention provides: Adiplomatic agent shall enjoy immunityfrom the criminal jurisdiction of thereceiving state. He shall also enjoyimmunity from its civil and administrative

jurisdiction, except in the case of:

a. a real action relating to private

immovable property situated in theterritory of the receiving state,unless he holds it on behalf of thesending state for the purposes ofthe mission;

b. an action relating to succession inwhich the diplomatic agent isinvolved as executor,



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administrator, heir orlegatee as a private personand not on behalf of thesending state;

c. an action relating to anyprofessional orcommercial activityexercised by the diplomaticagent in the receiving stateoutside of his officialfunctions.

*Under our Constitution, it is the Presidentwho is empowered to appoint ambassadors, other public ministers andconsuls, subject to the consent of theCommission on Appointments.

*Immunity from jurisdiction may bewaived expressly or impliedly.

*However, waiver of immunity from jurisdiction in respect of civil oradministrative proceedings shall not beheld to imply waiver of immunity inrespect of the execution of the judgment,for which a separate waiver shall benecessary.

It is a recognized principle ofinternational law and under oursystem of separation of powersthat diplomatic immunity isessentially a political question andcourts should refuse to look beyonda determination by the executivebranch of the government, andwhere the plea of diplomaticimmunity is recognized andaffirmed by the executive branchof the government, it is then theduty of the courts to accept theclaim of immunity uponappropriate suggestion by theprincipal law officer of thegovernment (World Healthorganization vs. Aquino,48SCRA 242).

3. INVIOLABILITY OF DIPLOMATICPREMISES

4. INVIOLABILITY OF ARCHIVES

5. INVIOLABILITY OFCOMMUNICATION-even thediplomatic courier carrying thediplomatic bag shall be protectedby the receiving state in theperformance of his functions.

6. EXEMPTION FROMTESTIMONIAL DUTIES

7. EXEMPTION FROM TAXATION-the diplomatic envoy is also

exempt from taxes, customs duties, andother dues, subject to the exception listedin the Diplomatic Convention and as wellas from social security requirements undercertain conditions. His personal baggageis also free from inspection unless there

are serious grounds for presuming that itcontains articles not exempt from customsduties or not admissible into the receivingstate.

8. OTHER PRIVILEGES(a.) freedom of movement and travel in itsterritory(b.) exemption from personal services , publicservices and from military obligation(c.) the right to use the flag and emblem of thesending state on the premises of the mission

VIII. ASYLUM- the right of asylum is theauthority of a State to allow an alien who hassought refuge from prosecution or persecution toremain within the territory and under itsprotection.

There are two(2) species of asylum:

1. territorial asylum- refuge within theterritory of the shettering state; theprotection which a refugee obtains byescaping to, or remaining upon, theterritory of a State other that the state

that wants him, until the protection isterminated by his extradition.

2. exterritorial asylum- asylum in what areconsidered the extensions of a statesterritory. This includes:

a. asylum in foreign public ships;b. diplomatic asylum- the protection

afforded by a State to a refugee bygranting him an asylum in or uponits diplomatic buildings within theterritory of the State that wants

him.

The doctrine on asylum may besummarized in the following manner:

1. with reference to territorial asylum theright of a state to grant asylum within itsterritory exists only when it is sostipulated in a treaty or when it is justifiedby established usage. Of course, should astate rely on its territorial supremacy itcan always justify the grant.

2. With reference to diplomatic asylum-asylum may be granted only if:

A. there is a treaty granting this right;B. established usage allows it but this

should be confined within itsnarrowest limits

C. when the life, person, or liberty ofthe individual seeking is threatened



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by imminent violence; it isunderstood that asylumshould be temporary andshould exist only for theduration of the emergency.

X. TERMINATION OF DIPLOMATICMISSION:

1. Usual methods:2. death3. resignation4. removal5. abolition of the office,etc.

*Under International Law, the moreimportant modes are recall anddismissal.

XI. CONSULS:

Consuls are state agents residing abroadfor various purposes but mainly in theinterest of commerce and navigation.

XII. 2 KINDS OF CONSULS:

1. Consules missi- professional orcareer consuls who are nationals ofthe appointing state and arerequired to devote their full time tothe discharge of their consular

duties.2. Consules electi- they may or may

not be nationals of the appointingstate and perform their consularfunctions only in addition to theirregular callings.

*Heads of consular posts are classifiedaccording to importance into:

1. consul-general2. consul3. vice-consul4. consular agent

*Consuls derive their authority from 2principal sources:

1. LETTER PATENT or lettre deprovision the commission issuedby the sending state.

2. EXEQUATUR-the authority givento them by the receiving state toexercise their duties therein.

The severance of diplomatic relations shallnot ipso facto involve the severance ofconsular relations and vice versa.

XIII. FUNCTIONS OF CONSULS:

(1.) promote the commercial interests oftheir country in the receiving state and toobserve commercial trends and

developments therein for report to their homegovernment.

(2.) They also perform duties relating tonavigation, such as visiting and inspectingvessels of their own states which may be in the

consular district, exercising a measure ofsupervision over such vessels, adjusting matterspertaining to their internal order and discipline,as well as visiting and inspecting foreign vesselsdestined for a port of the sending state.

(3.) Consuls are also empowered to issuepassports to nationals of the sending state, & toissue documents relating to entry into and travelwithin the territory of the sending state, and tovisa invoices and certificates of origin of goodsdestined for the territory of that state, and to visainvoices and certificates of origin of goods

destined for the territory of that state.

(4.) It is likewise the responsibility of consuls tolook after the interests of fellow nationals and toextend them official assistance wheneverneeded.

XIV. IMMUNITIES & PRIVILEGES:1. Consuls have a right to official

communication

2. Consuls also enjoy inviolability of theirarchives.

3. Consuls are exempt from the localjurisdiction for crimes committed by themin the discharge of their official functions.But with regard to other offenses, they arefully subject to the local law and may bearrested, prosecuted and punished inproper proceedings.

4. Civil suits may be instituted againstconsuls in their personal or privatecapacity but not in matters connectedwith their official duties.

5. Consuls are also generally exempted fromtaxation, customs duties, service in themilitia, and social security rules.

XV. TERMINATION OF CONSULAR MISSION:1. removal2. resignation3. death4. expiration of the term5. outbreak of war between the sending

and receiving state6. withdrawal of the exequatur

*In the event of war, the consulate is closedand the archives are sealed and left in thecustody of a caretaker, usually a consul from aneutral state. The consul from the belligerentstate is allowed to depart for his own country assoon as possible and w/o unnecessarymolestation.



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XVI. DIPLOMATIC PROTOCOL thetotality of norms and rules whichdetermine the external forms of relationsbetween states, of diplomatic intercourse;it is a political instrument of diplomacyand creates a framework within which a

diplomatic activities are realized.

PART SEVEN

I. TREATY a formal agreement,usually but not necessarily in writing,which is entered into by states or entitiespossessing the treaty-making capacity, forthe purpose of regulating their mutualrelations under the law of nations.

II. An EXECUTIVE AGREEMENT is nota treaty insofar as the concurrencethereto of the Senate is not requiredunder our Constitution. However, thedistinction is purely municipal and has nointernational significance. From theviewpoint of international law, treatiseand executive agreements are alikein that both constitute equallybinding obligations upon the nation.

Various appellations have beengiven to treaties:

1. PACT a special treaty which isformally sentimental;

2. CONVENTION this is more orless an informal treaty dealing withspecific subjects: sometimes itdoes not even require ratification;

3. AGREEMENT/ARRANGEMENT/ ACCORD conventions on administrative or

technical matters;

4. CONCORDATS agreemententered into by the Pope (as headof the church) with various chiefsof States;

5. DECLARATIONS these areformal reciprocal agreementswhich may deal with:

a) the rights and privileges ofthe national of a state;

b) principles in accordance

with which states proposeto act or

c) grounds for mutual actionon the part of states.

6. PROTOCOL this may refereither to a supplemental treaty or to anamendment to a treaty

III. FUNCTIONS OF TREATIES:1. Treaties enable parties to settle finally

actual and potential conflicts.

2. Treaties make it possible for the parties tomodify the rules of international

customary law by means of optionalprinciples or standards.

3. They may lead to a transformation ofunorganized international society into onewhich may be organized on any chosenlevel of social integration.

4. They frequently provide the humus for thegrowth of international customary law.

IV. ESSENTIAL REQUISITES OF A VALIDTREATY:

To be valid, a treaty must:1. be entered into by parties with the treaty

making 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

The Constitution of the Philippines authorizes thePresident to make treaties, subject to theconcurrence of two-thirds of all the members of

the Senate.

V. TREATY MAKING PROCESS:

1. Negotiation - it is a standard practice forone of the parties to submit a draft of theproposed treaty, which, together with thecounter proposals, becomes the basis ofthe subsequent negotiations.

2. If and when the negotiators finally agreeon the terms of the treaty, the same isopened for signature.

3. Ratification - is the formal act by which astate confirms and accepts the provisionsof a treaty concluded by itsrepresentatives.

- an unratified treaty cannot be asource of obligations between theparties.

4. Exchange of the instruments of ratificationor deposit with the government of one ofthe contracting parties or with an organ ofan international organization.

5. Registration with, and publication by theSecretariat of the United Nations.

*Under Art. 102 of the UN Charter, atreaty not registered with the Secretariat,by which it shall be published, cannot beinvoked before any organ of the UN.



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Nevertheless, the treaty does not cease tobe binding between the parties and maybe the basis of litigation before someother arbitral or judicial body notconnected with the UN.

VI. BINDING EFFECT OF TREATIES:As a rule, a treaty is binding only

on the contracting parties, including notonly the original signatories but also otherstates which, although they may not haveparticipated in the negotiation of theagreements, have been allowed by itsterm to sign it later by a process known asaccession.

VII. INSTANCES WHEN THIRD STATESMAY BE VALIDLY HELD TO THEOBSERVANCE OF OR BENEFIT FROM

THE PROVISIONS OF A TREATY:1. The treaty may be merely a formal

expression of customaryinternational law which, as such, isenforceable on all civilized statesbecause of their membership in thefamily of nations.

2. Under Art. 2 of the UN Charter Theorganization shall ensure that non-member States act in accordancewith the principles of the Charterso far as may be necessary for the

maintenance of international peaceand security.

3. The treaty itself may expresslyextend its benefits to non-signatorystates.

VIII. OBSERVANCE OF TREATIES:

PACTA SUNT SERVANDA performance in good faith of treatyobligations

*The sovereignty of a state thereforecannot in fact and in reality be consideredabsolute. Certain restrictions enter intothe picture:

1. limitations imposed by the verynature of membership in the familyof nations;

2. limitations imposed by treatystipulations.

REBUS SIC STANTIBUS the doctrine constitutes anattempt to formulate a legal

principle which would justifynon-performance of a treatyobligation if the conditionswith relation to which theparties contracted havechanged so materially andso unexpectedly as tocreate a situation in which

the exaction of performance wouldbe unreasonable.

*The doctrine is subject to the followinglimitations:

1. it applies only to treaties of indefinite

duration;

2. the vital change must have beenunforeseen or unforeseeable and shouldnot have been caused by the partyinvoking the doctrine;

3. the doctrine must be invoked within areasonable time; and

4. it cannot operate retroactively upon theprovisions of the treaty already executedprior to the change of circumstances.

IX. TERMINATION OF TREATIES:A treaty may be terminated in any of the

following ways:

(1) By expiration of the term, which may befixed or subject to a resolutory condition.

(2) By accomplishment of the purpose

(3) By Impossibility of performance.

(4) By loss of the subject-matter.

(5) By desistance of the parties, throughexpress mutual consent; desuetude, or theexercise of the right of denunciation (orwithdrawal), when allowed.

(6) By novation.

(7) By extinction of one of the parties if thetreaty is bipartite.

(8) By vital change of circumstance under the

doctrine ofrebus sic stantibus.

(9)By outbreak of war between the parties inmost cases, save specifically then the treaty wasintended to regulate the conduct of thesignatories during the hostilities, or to cedeterritory, or to fix boundaries. As held in Techt v.Hudges, provisions of a treaty compatible with astate of hostilities, unless expressly terminated,will be enforced, and those incompatible rejected.

(10)By voidance of the treaty because of defectsin its conclusion, violation of its provisions by one

of the parties, or incompatibility withinternational law or the U.N. Charter.

PART VIII



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I. NATIONALITY membership in apolitical community with all itsconcomitant rights and obligations

An individual acquires the nationality ofthe state where he is bornjure soli or the

nationality of his parentsjure sanguinis.

II. NATURALIZATION is a process bywhich a foreigner acquires, voluntarily orby operation of law, the nationality ofanother state.

III. LOSS OF NATIONALITY:A.Voluntary:

1. renunciation2. request for release

B. Involuntary:

1. forfeiture as a result of somedisqualification or prohibited actlike enlistment in a foreign army

2. substitution of one nationality foranother following a change ofsovereignty

Hague Convention of1930 on the Conflict ofNationality Laws:

Art. 1 It is for each state to determineunder its laws who are its nationals.Art. 5 within a third state, a personhaving more than one nationality shall betreated as if he had only one.

IV. STATELESSNESS is the conditionor status of an individual who is bornwithout any nationality or who loses hisnationality without retaining or acquiringanother.

A stateless individual is, from thetraditional viewpoint, powerless to assertany right that otherwise would beavailable to him under international law

where he is a national of a particular state.Any wrong suffered by him through theact of omission of a state would bedamnum absque injuria for in theory noother state had been offended and nointernational delinquency committed as aresult of the damage caused upon him.

It was in view of this difficulty thatthe Hague Convention of 1930 adoptedrules to avoid the condition of statelessness and all its attendantinconveniences. Briefly stated, these ruleswould condition loss of nationality by an

individual upon his retention or acquisitionof another nationality, whether such lossbe by expatriation, naturalization as to thewife and minor children or adoption.

V. DOCTRINE OF STATERESPONSIBILITY under this doctrine, astate may be held responsible for: (a.) aninternational delinquency

(b.) directly or indirectly imputable to it (c.)whichcauses injury to the national of another state.Liability will attach to the state where itstreatment of the alien falls below theinternational standard of justice. Or where it isremiss in according him the protection or redress

that is warranted by the circumstances.

VI. INTERNATIONAL STANDARD OF JUSTICE the standard of the reasonable state, that is, asreferring to the ordinary to the ordinary norms ofofficial conduct observed in civilized jurisdictions.

But even assuming the liability of the state for aninternational delinquency, its enforcement cannotbe claimed by the injured foreigner unless he firstexhausts all available local remedies for theprotection or vindication of his rights.

VII. ENFORCEMENT OF CLAIM:An international claim for damages may beresolved through:

1. negotiation2. good offices3. arbritation4. judicial settlement5. war

Such reparation may take the form of:

1. restitution2. satisfaction or compensation3. restoration or replacement of the

object of the offense4. formal apology by the delinquent

state5. payment of damages

CALVO CLAUSE this is astipulation by which the alienwaives or restricts his right toappeal to his own state inconnection with any claim arisingfrom the contract and agrees tolimit himself to the remediesavailable under the laws of thelocal state

United States (North American Dredging Co.) v.Mexico:Q: Under the rules of international law, mayan, alien lawfully make such a promise (asis embodied in the Calvo clause)?

A: The Commission holds that he may, but at thesame time holds that he cannot deprive thegovernment of his nation of its undoubted right ofapplying international remedies to violations ofinternational law committed to his damage. Suchgovernment frequently has a larger interest inmaintaining the principles of international lawthan in recovering damage for one of its citizensin a particular case, and manifestly such citizencannot by contract tie in this respect the hands ofhis government.



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VIII. DEPORTATION removal of analien out of country, simply because hispresence is deemed inconsistent with thepublic welfare, and without anypunishment being imposed or

contemplated either under the laws of thecountry out of which he is sent, or underthose of the country to which he is taken.

IX. EXCLUSION denial of entry to analien

X. EXTRADITION is thesurrender of a person by one state toanother state where he is wanted forprosecution or, if already convicted forpunishment.

XI. DISTINCTIONS BETWEENEXTRADITION AND DEPORTATION:

Extradition Deportation1. affected at the

request of the stateof nation

1. unilateral act ofthe local state

2. it is based onoffenses generallycommitted in the

state of origin

2. based on causesarising in the local

state.

3. calls for the

return of thefugitive to the state

of origin

3. an undesirablealien may be

deported to a stateother than his own

or the state oforigin.

The extradition of a person is requiredonly if there is a treaty between the stateof refuge and the state of origin. In theabsence of such a treaty, the local statehas every right to grant asylum to thefugitive and to refuse to deliver him backto the latter state even if he is its national.

XII. FUNDAMENTAL PRINCIPLES OFEXTRADITION:

1. Extradition is based on theconsent of the state of asylum asexpressed in a treaty or manifestedas an act of goodwill.

2. Under the principle of specialty, afugitive who is extradited may betried only for the crime specified inthe request for extradition andincluded in the list of offenses inthe extradition treaty.

If he is charged with any other offensecommitted before his escape, the state ofrefuge - and not the accused has a rightto object; Nevertheless, the prosecutionwill be allowed if the extraditing stateagrees or does not complain.

3. Any person may be extradited, whether hebe a national of the requesting state, ofthe state of refuge or of another state.

The practice of many states now,however, is not to extradite their ownnationals but to punish them under their

own laws in accordance with thenationality principle of criminal

jurisdiction.

4. Political and religious offenders aregenerally not subject to extradition.

In order to constitute an offense of apolitical character, there must be two ormore parties in the state, each seeking toimpose the government of their ownchoice on the other.

Under the attentat clause, themurder of the head of state or anymember of his family is not to beregarded as a political offense forpurposes of extradition. Genocideis not a political offense.

The crime ofgenocide consists ofany

of the following acts, committed withintent to destroy, in whole or in part,a national, ethnical, racial orreligious group as such:

(1)Killing members of the group

(2)Causing serious bodily or mentalharm to members of the group.

(3)Deliberately inflicting on the groupconditions of life calculated tobring about its physical destructionin whole or in part.

(4)Imposing measures intended toprevent births within the group

(5)Forcibly transferring children ofthe group to another group.

5. In the absence of special agreement, theoffense must have been committed withinthe territory or against the interests of thedemanding state.

6. The act for which the extradition is soughtmust be punishable in both the requestingand requested states under what is knownas the rule of double criminality.

XIII. PROCEDURE OF EXTRADITION:

1. a request for his extradition ispresented through diplomatic channels-this request will be accompanied by thenecessary papers relative to theidentity of the wanted person and thecrime he is alleged to have committed or



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of which he has already beenconvicted.

*Upon a receipt of this request, the stateof refuge will conduct a judicialinvestigation to ascertain if the crime id

covered by the extradition treaty and ifthere is a prima facie case against thefugitive according to its own laws. If thereis, a warrant of surrender will be drawnand the fugitive will be delivered to thestate of origin.

The Supreme Court sustained the demandof a person to be informed of the details ofthe crimes imputed to him in a request forhis extradition by the USgovernment. TheSecretary of Justice had rejected thatdemand on the ground that it was

premature because the Phil. Governmentwas still evaluating the American requestand no complaint for extradition had asyet been filed against the person. TheCourt held, however, that under the dueprocess clause the info. sought could notbe withheld even at that tentative stage(Secretary of Justice vs. SecretaryLantion GR 139465, Jan. 18, 2001).

PART NINE

I. INTERNATIONAL DISPUTE anactual disagreement between statesregarding the conduct to be taken by oneof them for the protection or vindication ofthe interests of the other state.

II. SITUATION initial stage of adispute

*A dispute is legal if it involves justiciablerights based on law or fact susceptible ofadjudication by a judicial or arbitral

tribunal.

*It is political if it cannot be decided bylegal processes on the basis of thesubstantive rules of international lawbecause the differences of the partiesspring from animosities in their mutualattitudes rather than antagonism of legalrights. The solution to such a dispute liesnot in the councils of the courts but in thecorridors of diplomacy.

*Disputes are required to be settled,

conformably to one of the basic principlesof the UN, by peaceful means in suchmanners that international peace andsecurity, and justice, are not endangered.

The jurisdiction of the International Courtof Justice is not general or obligatory; itscompetence to act is dependent on theconsent of the parties involved.

III. THE AMICABLE METHODS OF SETTLINGDISPUTES ARE:(GIN MAC JR.)

1. good offices2. inquiry3. negotiation

4. mediation5. arbitration6. conciliation7. judicial settlement8. resort to regional and international

organizations

Except for negotiation, they all involve theparticipation of a third party, such as a state or aprestigious statesman or jurist.

1. NEGOTIATION the discussionundertaken by the parties themselves of

their respective claims and counterclaimswith a view to their just and orderlyadjustment.

2. INQUIRY an investigation of the pointsin question, on the theory that theirelucidation will contribute to the solutionof the differences between the parties.

The findings of the party making theinquiry are not conclusive upon thedisputing states but they neverthelessmay exert a strong moral influence in thesettlement of the conflict.

3. GOOD OFFICES a method by which athird party attempts to bring the disputingstates together in order to enable them todiscuss the issues in contention and arriveat an agreement

4. MEDIATION a third party does notmerely provide the opportunity for theantagonists to negotiate but also activelyparticipates in their discussions in order toreconcile their conflicting claims and

appease their feelings of resentment. Thesuggestions of the mediator are merelypersuasive, however, and may be rejectedwithout offense by the parties to thedispute.

5. CONCILIATION calls for the activeparticipation of a third party in theattempt of the disputant to settle theirconflict, and the recommendations madeby it are likewise not binding. But unlike inmediation, the services of the conciliationare not offered by the third party but

solicited by the parties in dispute.

6. ARBITRATION the solution of a disputeby an impartial third party, usually atribunal created by the partiesthemselves. The proceedings areessentially judicial and the award is, byprevious agreement, binding on theparties to the dispute.



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7. JUDICIAL SETTLEMENT substantially similar to arbitration.However, arbitration and judicialsettlement differ in the followingpoints

ArbitrationJudicial

Settlement

1. The arbitraltribunal is an adhoc body createdand filled by the

parties to thedispute

themselves

1. the judicialtribunal is,generally

speaking, a pre-existing and

permanent body

2. submission toarbitration is

voluntary

2. jurisdiction is

compulsary

3. In substitutionproceedings the

law may belimited by the

parties

3. the lawapplied by the

tribunal isindependent ofthe will of the

parties

8. Another peaceful method of

settling disputes is action byregional organizations, which maybe resorted to by the parties ontheir own volition or taken by thebody itself at its own instance ifallowed by agreement of themembers.

*Art. 52 of the UN Charter,regional arrangements oragencies may be established tomaintain international peace(thru regional action and topeacefully settle local disputesbefore referring them to theSecurity Council. Their

activities ought to be reportedto the Council. Parenthetically,it should be noted that theexistence of these agencies willNOT prevent the SecurityCouncil from itself investigating and setting thesedisputes.

IV. HOSTILE METHODS:1. retorsions2. reprisals3. intervention

RETORSION any action taken inretaliation where the actscomplaint of do not constitute alegal ground of offense but arerather in the nature of unfriendlyacts but indirectly hurtful to otherstates. The act of retaliation is alsounfriendly but not illegal and may

be in kind or of a different nature than theact that provoked it.

e.g. severance of diplomatic orconsular relations

REPRISALS- are arts of self-help on thepart of the injured state, resp

Documents

Public International Law 2003