Public International Law (Reviewer Finals)

7/27/2019 Public International Law (Reviewer Finals)

1/66

PUBLIC INTERNATIONAL LAW

(CHAP 5-19)

No man is an island is not just a

flight of rhetoric but bespeaks the urgent need for joining of hands by all the

peoples of the world in the promotion of international peace and progress

-

Isagani A. Cruz

-

THE CONCEPT OF THE STATE


2/66

Generally accepted

methods by which status is acquired:

Revolution

Unification

Secession

Assertionof independence

Agreement

and Attainment of civilization

Principle of State

Continuity

-

from


3/66

the moment of its creation, state continues as a juristic being notwithstanding

changes in its circumstances, provided only that they do not result in loss of

any of its essential elements

-

continuity

of life of state is not impaired by changes in form of government, reduction of

its population as long as substantial number of people survive, loss of part of

its territory provided that remainder is still sizable

-

limitation

of sovereignty reduces it to a dependent state but does not deprive it of

international personality

Extinction of State

-

Example:


4/66

Population may be

completely wiped out

Government overthrown

without being replaced

State may merge with

another state

Territory dismembered or

annexed by others

If federation, may be

broken up or dissolved

If independent, becomes

dependent


5/66

-

Radical

impairment or actual loss of one or more of the essential elements of the state

that will result in its extinction

Succession of States

-

question

will arise in the event that a state is extinguished or is created as a result

of any of the methods previously discussed

-

takes

place when one state assumes the rights and some of the obligations of another

because of certain changes in the condition of the latter

-

may

be either universal or partial


6/66

-

Universal:

state is annexed to another state or is totally dismembered or merges with

another state to form a new state; international personality of the former

state is completely absorbed by the successor

-

Partial:

a portion of the territory of a state secedes or is ceded to another or when an

independent state becomes a protectorate or a suzerainty or when a dependent

state acquires full sovereignty

Consequences of State

Succession

-

allegiance

of the inhabitants of the predecessor state in the territory affected is


7/66

transferred to the successor state

usually, naturalized en

masse

-

political

laws of former sovereign are automatically abrogated and may be restored only

by positive act of new sovereign

non-political laws are continued unless changed

by sovereign or contrary to institutions of successor state

-

treaties

of political or commercial nature, including extradition, are discontinued

except those dealing with local rights and duties

-


8/66

all

rights of predecessor state are inherited by successor state

does not apply to liabilities; successor state

has discretion which liabilities to assume and which to reject

Succession of Governments

-

one

government replaces another either peacefully or by violent methods

-

integrity

of state is not affected

-

rights

of predecessor government are inherited in toto by successor government


9/66

-

where

the new government was organized by virtue of a constitutional reform duly

ratified in a plebiscite, the obligations of the replaced government are also

completely assumed by the former

-

where

the new government was established through violence, as by a revolution, it may

lawfully reject the purely personal or political obligations of the predecessor

government but no those contracted by it in the ordinary course of official

business

RECOGNITION

Recognition


10/66

-

merely declaratory and only affirms the pre-existing fact

that the entity being recognized already possesses the status of an

international person

-

highly political and discretionary

-

minority view: recognition is constitutive, meaning that

it is the last indispensable element that converts or constitutes the entity

being recognized into an international person

-

may be extended by individual states or a number of them

together

-

Philippines: President determines question of recognition,

an act of state therefore not subject to judicial review


11/66

Object of Recognition

-

may be extended to a state, a government or a belligerent

community

-

Recognition of state is generally irrevocable and imports

recognition of its government

-

Recognition of government may be withdrawn and does not

necessarily signify existence of state

-

Recognition of belligerent community does not produce same

effect as recognition of state and government because rebels are accorded

international personality only in connection with the hostilities they are

waging


12/66

Kinds of Recognition

-

may be either express or implied

-

Express

o

May be verbal or in writing

o

May be extended through formal proclamation or

announcement, stipulation in a treaty, letter or telegram ,or on occasion of

official call or conference

-


13/66

Implied

o

Recognizing state enters into official intercourse with

the new member by exchanging diplomatic representatives, concluding bipartite

treaty dealing comprehensively with relations in general, or acknowledging its

flag or entering into formal relations with it

o

In case of belligerent communities, recognition is implied

when legitimate government blockades a port held by the former or when other

states observe neutrality in the conflict

-

act of recognition must have clear indication of an

intention:

a. to treat with the

new state as such, or


14/66

b. to accept the new

government as having authority to represent said state, or

c. to recognize in

the case of insurgents that they are entitled to exercise belligerent rights

Recognition of States

-

free act by which one or more states acknowledge the

existence on a definite territory of a human society politically organized,

independent of any existing state, and capable of observing the obligations of

international law, and by which they manifest therefore their intention to

consider it a member of the international community

Recognition of Governments


15/66

-

free act by which one or several states acknowledge that a

person or a group of persons is capable of binding the state which they claim

to represent and witness their intention to enter into relations with them

-

usually decided on the basis of political considerations

-

3 kinds of de facto government:

a. established by

inhabitants who rise in revolt and depose legitimate regime

b. established in

the course of war by invading forces of one belligerent in the territory of

another belligerent whose government is also displaced

c. established by


16/66

inhabitants of state who secede therefrom without overthrowing its government

-

practice of most states now is to extend recognition to a

new government only if it is shown that it has control of the administrative

machinery of the state with popular acquiescence and that it is willing to

comply with its international obligations

-

2 criterion:

a. objective test

the government must be able to maintain order within the state and to repel

external aggression

b. subjective test

employed for purpose of justifying the withholding of recognition from a

government that is politically unacceptable

-


17/66

De jure: government that satisfies the criteria

-

De facto: not yet satisfied the criteria

-

if no indication of kind of recognition extended, it is

presumed de jure

De Jure

De Facto

Relatively permanent

Provisional


18/66

Vests title in the government to its properties abroad

Does not vest title in the government to its properties

abroad

Brings about full diplomatic relations

Limited to certain juridical relations

Effects of Recognition of States and Governments

-

full diplomatic relations established, except de facto

government

-

recognized state or government acquires the right to sue


19/66

in the courts of recognizing state

-

recognized state or government has right to the possession

of properties of its predecessor in the territory of the recognizing state

-

all acts of the recognized state or government are

validated retroactively, preventing the recognizing state from passing upon

their legality in its own court

Recognition of Belligerency

-

belligerency exists when inhabitants of state rise up in

arms for the purpose of overthrowing the legitimate government


20/66

Insurgency

Belligerency

Initial state of belligerency

More serious and widespread

Directed by military authorities

Under civil government

Usually not recognized

There are settled rules regarding recognition of

belligerency


21/66

-

conditions:

a. there must be an

organized civil government directing the rebel forces

b. rebels must

occupy a substantial portion of territory of state

c. conflict between

legitimate government and rebels must be serious, making the outcome uncertain

d. rebels must be

will and able to observe laws of war

Consequences of Recognition of Belligerency


22/66

-

belligerent community is considered a separate state for purpose

of the conflict it is waging

-

relations with each other shall be governed by the laws of

war and their relations with other states shall be subject to the laws of

neutrality, for the duration of hostilities

-

where recognition is extended by third states,

consequences are effective only as to them and do not bind other state not

extending recognition

-

only where recognition is made by parent state that the

effects become general and legally applicable to all other states


23/66

RIGHT OF EXISTENCE AND SELF DEFENSE

Forcible

Means must be taken only when there is an ARMED ATTACK.

The

attack must be instant, overwhelming and no time for deliberation.

The

danger must be grave and actual.

Regional


24/66

arrangements and organizations are necessary for balance of power or an

arrangement of affairs so that no state shall be in a position to have absolute

mastery over another.

Aggression,

use of armed force against a sovereignty, its territorial integrity or

political independence of another state.

RIGHT OF INDEPENDENCE

Sovereignty,

the supreme and uncontrollable and inherent power of the state to command and

enforce obedience to which all interests are subject and all wills

subordinate..


25/66

It is

not absolute freedom,only means freedom from control by any other state and not

freedom from the restrictions that are binding to all other states under the

family of nations.

Doctrine

of Non-Intervention- corollary to sovereignty, states must abstain in

intervening in the domestic or international affairs of other states.

Valid

intervention includes an act of self defense and when such intervention is

decreed by the security council.

Drago

Doctrine- contracting powers agree not to have recourse to armed force for recovery ofcontract debts


26/66

claimed from one government to another being due to its nationals.

RIGHTS OF EQUALITY

All

rights of a state, regardless of its number must be observed and respected by

the international community in the same manner that the rights of other states

are observed and respected.

ACT OF STATE DOCTRINE


27/66

TERRITORY

Territory is a fixed

portion of the earth inhabited by a population of a state.

AQCUISITION OF A

TERRITORY


28/66

Discovery and

Occupation

-

territory discovered

must be TERRA NULLiUS or one which is not owned by any entity.

-

There must be

possession and administration

-

Possesion creates an

INCHOATE TITLE which bars any other state from entering said territory within a

reasonable time until the discovering territory is able to establish

administration.

-

Upon administration,

the inchoate title ripens into a full title.


29/66

Dereliction

-

A state physically

withdraws from the territory with the intention of abandoning it altogether.

-

Said land becomes

terra nullius once again and open to be discovered.

Prescription

-

The exercise of

sovereign rights over a territory for a reasonable period of time

-

No rule fixing the

exact period yet.


30/66

Cession

-

transfer of territory

is by agreement between states.

-

Either by donation,

sale, barter, exchange etc.

Subjugation

-

Having been

previously conquered through war , territory is formally annexed to the

victors territory at the end of war

Accretion

-

Natural or artificial


31/66


32/66

archipelago shall be encompassed as one

territotry.

JURISDICTION

Jurisdiction is the authority of the state over

its person and things within or outside its territory

Personal Jurisdiction- over persons bound by their duty of obedience

and allegiance.

-

Such duty follows him even when he is outside


33/66

the territory and he may not be excused from it unless he renounces

allegiance. Examples are

laws on family code, family rights and duties, status, condition and legal

capacities of

persons.

-

An alien may be subject to the laws of the

state in whose national interest he has violated be it in its territory or

outside.

Territorial Jurisdiction- over person and

property within its territory.

-

Jurisdiction in our own territory is necessary,

exclusive and absolute.


34/66

When

states cannot exercise jurisdiction within own territory:

-

Foreign states (by vitue of sovereign

equality), heads of states,diplomatic representatives and consuls to a certain

degree ( by virtue of exterritoriality.

-

Foreign state properties including embassies,

public vessels engaged in non-commercial activities, consulates.

-

Acts of State (by virtue of sovereignty and

independence0

-


35/66

Foreign merchant vessels in innocent passage or

arrival under stress.

-

Foreign armies passing thru or stationed in

territory.

-

UN and others by treaty.

Land Jurisdiction- everything found within the

terrestrial domain.

Maritime and Fluvial Jurisdiction

-

Criminal, administrative and vivil jurisdiction


36/66

is excercised by the flag state wherever it may be, provided it is not engaged

in commerce.

-

English rule is applied in the Philippines.

Coastal state has jurisdiction over all offenses.

-

French rule- Coastal state has jurisdiction

only when the offense constitute a disturbance of peace to its territory.

-

Important is the determination of disturbance

of peace.

Open Seas

A state a

jurisdiction in the open seas:


37/66

-

Over its vessels. Flag state has jurisdiction

at all times. Merchant vessels however are under jurisdiction when within

territory,in open seas and when waived by the other territorial sovereign.

-

Over pirates. Pirates can be tried anywhere.

Enemies of mankind.

-

In exercise of right to visit and search, under

rules of neutrality.

-

Under the doctrine of hot pursuit. The pursuit

must begin before the vessel leaves the territory of the state.


38/66

Aerial

jurisdiction

-

Freedom to fly across territories without

landing

-

Freedom to land for non-traffic purpose (refer

page. 137)

THE RIGHT OF LEGATION

Diplomatic relations are normally conducted by

the head of state or their foreign representatives.


39/66

Diplomatic Envoys

-

Ambassadors, envoys, ministers,charges de

affaires

Diplomatic Corps

-

Body of the different diplomatic

representatives who have been accredited to the same state.

-

Appointment of envoys shall be agreed upon by

the states as to the class to which heads of missions are to be assigned.

-

President is empowered to appoint ambassadors

with approval of CA. But acceptance of other states representatives is upon his


40/66

exclusive discretion.

Diplomatic

Functions commence upon presentation of credentials upon notification of

arrival and presentation credentials to the foreign minister.

Diplomatic

functions

-

Represent the sending state

-

Protect theinterest of its nationals

-


41/66

Negotiate

-

Ascertaining conditions and developments and

report them

-

Promote friendly relations

Diplomatic

Immunities and Privileges

-

Personal inviolability. Cannot be arrested

unless for instances that he laid his hands to our citizens or caused violence,

he can be preventively restrained.

-


42/66

Immunity from civil, criminal or administrative

jurisdiction. Remedy of receiving state is to ask for recall.

-

Exceptions are real actions relating to private

properties situated in the receiving state; action realting to succession where

the diplomat is the executor or administrator, heir, legatee, action to any

professional or commercial activity unrelated to his mission or functions.

-

Inviolability of diplomatic premises. Premises

may not be entered without consent.

-

Inviolability of archives.

-

Inviolability of communication.

-


43/66

Exemption from testimonial duties- not onliged

to give evidence as a witness.

-

Exemption fromtaxation.

Diplomatic

suite or retinue

-

Above immunities are available as well

todiplomatic, technical, administrative staff and service staff.

-

Not extend to unofficial acts.

-

Private servants if they are not nationals of


44/66

the receiving state,enjoy only exemption from dues and taxes in their income

from the mission.

CONSULS

-

state agents residing abroad for purposes of

commerce and navigation.

-

Do not represent state in political matters

Appointmert

-

Letter patent- commission issued by sending

state


45/66

-

Exequatur- authority given by receiving state.

Immunities and Privileges- official

communication but may be curtailed when prejudicial to receiving state.

Inviolability of

archives.

TREATIES

-

Defined as formal agreement between states

regulating mutual relations under the law of nations.

Requisites


46/66

-

Treaty-making capacity-

all states are with full capacity except except by reason of their status such

as a protectorate.

-

Authorised representatives-

o

(phil0 president is authorized to make treaties

with concurrence of 2/3 of the senate.

o

A state is not bound by a treaty made by an

unauthorized representative, it is void and unenforceable in the municipal laws

of the state but nonetheless is binding in international laws and creates

responsibility and liability to injuries caused by such agreement.

-


47/66

Freedom of vice of consent.

A

treaty forced upon a negotiator is void ab initio. Forced upon the state,

creates vice as well.

-

Lawful subject matter

Example of unlawful matter is dividing the pacific ocean between

states.

-

Compliance with constitutional process.

Treaty making process

-


48/66

Negotiation- when such is finally decided, it

shall be open for SIGNATURE which signifies authentication and good faith but

not the final consent.

-

Ratification- is the final consent. Only the

President of RP has the right to ratify, not the senate. Senate can only

withhold or grant its consent to ratification. If the senate concurs with the

treaty, the president may or may not ratify the treaty.

-

Exchange of instrument of ratification- which

usually signifies effectivity unless a date is therefore provided.

Binding

Effects

-

Only to the contracting parties. But may be


49/66

binding to third parties by accession, those who were not in the negotiation

but were later allowed to sign it.

-

Third parties involved when treaty is only a

formal expression of customary IL or GAPIL.

-

Treaty may expressly extend its benefits to

non-signatories. (most-favored nation clause pg.176)

Pacta-sunt

servanda- treaties must be complied and performed in good faith.

Rebus sic stantibus- justification for

non-performance when the conditions with relation to the parties chamged

overtime and such change is unforeseeable and unexpected not caused by the

party as to create a situation where the exaction of performance becomes

unreasonable.


50/66

-

Applies only to treaties with indefinite

duration.

-

Cannot operate retroactively

-

Must be invoked within a reasonable time

NATIONALITY

AND STATELESSNESS

-

Nationality is the tie that binds an individual

to his stae. Interchangeably used with citizenship, but he latter has a more


51/66

exclusive scope.

-

Acquisition is by jus soli (by place of birth)

or jus sangguinis (by blood), or by naturalization (direct or derivative)

Multiple nationality

-

Occurs with the concurrent application of two

or more municipal laws which may follow jus sanguinis or jus soli.

-

Doctrine of indelible allegiance- two

nationalities by operation of the different laws of the different states..

Loss of nationality- by forfeiture,


52/66

renunciation.

Conflict of nationality laws- the laws of the

country applies for all purposes not minding or in exclusion of the laws of the

other

countries.

-when a person is both American and Filipino, as to the

Philippines, our laws determine his

citizenship, as to America their laws determine her citizenship

When determination is by a third country, the

effective or active nationality rule is applied or the nationality nof the state he is most

closely connected


53/66

Statelessness- a person without any

nationality- renounce to be naturalized and yet naturalization is cancelled and

repatriation was not granted or when jus soli ans jus sangguinis

are not applicable.

-

A wrong suffered by him through an act of the

stae is damnum absque injuria, he has no state hence in theory no other state

is injured

.

TREATMENT OF ALIENS

States may or may not accept aliens (exclusion)

but when they do such aliens have the right of protection by the accepting

state and to be treated fairly.


54/66

Doctrine of state responsibility

-

International delinquency when treatment of the

alien falls below international standards of justice.

-

Failure to make reasonable efforts to prevent

injury to the alien or fails to repair such injury.

Aliens

before charging the state for delinquency and before resorting to diplomatic

protection must first exhaust all available local remedies for his protection.

International

claim for damages may be resolved thru negotiation, or good offices

9conciliation and mediation), arbitration and judicial settlement.


55/66

CALVO

CLAUSE- stipulation by the alie where he waives or restricts his right to

appeal to his own state and limit his remedies to the laws of the local state (contract).

Extradition

-

surrender of a person by one state to another

where he is wanted for prosecution or punishment.

-

Basis is an extradition treaty

-

Principle specialty- person must be tried only

for the crime he was extradited otherwise the extraditing STATE (not the

person) may object to the prosecution.

-


56/66

Political and religious offenders are generally

not subject to extradition.

-

Attentat clause, murder of a royal blood is not

a political offense for purposes of extradition.

-

In the absence of special agreement, the

offense must be done in the territoty or against the demanding state.

-

The act or offense must be punishable in both

states.

SETTLEMENT

OF INTERNATIONAL DISPUTES


57/66

METHODS SHOULD BE PEACEFUL.

Amicable methods

-

Negotiation, inquiry,good offices (conciliation

/ mediation), arbitration,

Hostile methods

-

Retorsions( non-illegal), reprisals (self-help)

WAR

OUTLAWRY OF WAR


58/66

Commencement of War

-must have previous and explicit warning ,

reasoned declaration of war or an ultimatum with conditional declaration.

Effects of outbreak of war

-

Laws of war substitutes laws of peace between

parties

-

Laws of neutrality applies to third party

states

-

Diplomatic relations are terminated


59/66

-

Treaties of politica nature are cancelled

-

Individuals are impressed with enemy character

( nationality test, domiciliary test, activities test)

-

Properties of the enemy within territory are

subject to confiscation.

Conduct

of hostilities

-

Military necessity


60/66

o

Employ any amount and kind of force to compel

submission of the enemy with the least possible loss of lives and destruction

of property.

-

Humanity

o

Should not employ force or any measure not

absolutely necessary for the purpose

-

Chivalry

o

Should not involve treacherous methods, no

spies.


61/66

Belligerent

occupation

-

No transfer or suspension of sovereignty,

although may not be able to exercise at the moment

-

Political laws are abrogated, municipal laws

continue in operation. (the contrary may occur upon an express or direct act by

the belligerent government)

Postliminium

-

Persons and things taken by the enemy are

restored to the original state upon cessation of the occupation


62/66

-

Reinstatement of the authority of the displaced

government.

-

Laws of established government are revived and

all acts by the belligerent contrary to laws are voided.

Non-hostile

intercourse- flag of truce, cartels,passport,safe-conduct,safeguard, license to

trade

Suspension

of hostilities

-

Suspension of arms


63/66

o

Purpose of gathering of the wounded and burial

of the dead

-

Armistice

o

Political purpose, arranging times of peace.

-

Ceasefire, truce, capitulation

The

victor punishes the loser by imposing to it a treaty of peace and obligation to

pay reparations for injuries and losses suffered by the victor.

NEUTRALITY


64/66

A state

is neutral if it does not take part in a war between other states.

Neutrality-

based solely on the attitude of the state.

Neutralization-

agreed upon by states.

Relations

of belligerent states and neutral states

-

Duty to abstain in taking part in the

hostilities

-

Prevent its territory anresources from being


65/66

used

-

Acquiesce

in certain restrictions or limitations that belligerent may find

necessary to impose especially with commerce.

-

War may not be undertaken in neutral

territories without compromising its being neutral.

-

Neutrality is not negated by passage of

warships to territories but may not enter in neutral ports except of stress,

fuel, unseaworthiness and which sojourning is only for 24 hours which may be

extended or shortened depending on circumstance.

-

Prohibited from giving assistance of any form

to belligerent.


66/66

-

Private nationals decision to take part in the

hostilities does not affect neutrality of the state.

-

Belligerent may visit and search neutral

merchant vessels to determine connection with hostilities, if found as such,

they are captured as PRIZE.

ANGARY- a

belligerent may upon payment of just compensation, seize, use or destroy, in

case of urgent necessity for defense or offense, a neutral property found in

its territory, in enemy territory or in the high seas.

Documents

Public International Law (Reviewer Finals)