Public International Law

PUBLIC INTERNATIONAL LAW
PUBLIC INTERNATIONAL LAW Mr. Benjamin A. Cabrido Jr. Professor, USJ-R College of Law Chapter 1 GENERAL PRINCIPLES What is International Law? Traditional: That branch of public law which regulates the relations of states and of other entities which have been granted international personality. [Schwarzenberger, p.1] Modern: That law that deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relation with persons, natural or juridical. [American Third Restatement] Division of International Law Laws of Peace that which consists of the rules of international law on the rights and obligations of states in time of peace; Laws of War that which consists of the rules of international law on the rights and obligations of states in time of war; and Laws of Neutrality that which consists of the rules of international law on the rights and obligations of states connected with neutrality. International Law distinguished with Municipal Law Monist: No distinction since there is oneness or unity of all law; that international law cannot be comprehended without the assumption of a superior legal order from which the various systems of municipal law are, in a sense, derived by way of delegation. To the Dualist, who believes in the dichotomy of the law: Yes, there are distinctions, to wit: ML is issued by a political superior for observance by those under its authority, while IL is not imposed but adopted by states as a common rule of action; ML consists of enactments of law-making authority, while IL is derived from such sources as international customs, conventions or general principles of law; ML regulates the relations of individuals among themselves or with their own states, whereas IL applies to the relations inter se of states and other international persons; Violations of ML are redressed through local administrative and judicial processes, whereas questions of IL are resolved through state-to-state transactions ranging from peaceful methods like negotiations and arbitration to the hostile arbitrament of force like reprisals and even war; and Breaches of ML entail individual responsibility, while responsibility for infractions of IL is usually collective in the sense that it attaches to the state and not to its nationals Incorporation v. Transformation Doctrine of Incorporation: It is a universally accepted postulate that, with or without an express declaration to this effect, states admitted to the family of nations are bound by the rules prescribed by it for the regulation of international intercourse. By this doctrine, international law is binding ex proprio vigore (by its own force). Doctrine of Transformation: The generally-accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law.
In the Philippines, what doctrine is being followed? The doctrine of incorporation as expressed in Sec. 2, Art. II, 1987 Constitution: The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations [underscored is the so-called incorporation clause] Kuroda v. Jalandoni, G.R. No. L-2662, March 28, 1949 Held: Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulations of the Hague and Geneva conventions from part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory. Yamashita v. Gen. Styer, G.R. No. L-129 Held: War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. (Ex parte Quirin, 317 U.S. 1, 63 Sup. Ct. 2) Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty agreement. (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944) Co Kim Chan v. Valdez Tan Keh, G.R. No. L-5, Sept. 17, 1945 On the contention that MacArthurs Proclamation issued on October 23, 1944 invalidated all judicial proceedings during the Japanese occupation, it was Held: Taking into consideration the fact that according to a well-known principle of international law, all judgments and judicial proceedings which are not of a political complexion of the de facto government during the Japanese military remained so after the

occupied territory had come again into the power of the titular sovereign, it should be presumed that it was not and could not have been the intention of General MacArthur, in using the phrase processes of any other government in said proclamation, to refer to judicial processes, in violation of said principle in international law. Treaty v. Constitution v. Statute If the conflict is with the Constitution: uphold the Constitution (Sec. 5[2][a],Art. VIII, 1987 Constitution; If conflict is with statute: The doctrine of incorporation applies. A treaty may repeal a statute, and a statute may repeal a treaty. Doctrine of Lex posterior derogat priori that which comes last in time, will usually be upheld by the municipal tribunal. With international tribunal deciding: international law is superior to municipal law because international law provides the standard by which to determine the legality of a States conduct. Ichong v. Hernandez, 101 Phil. 115 Held: The Retail Trade Nationalization Law prevails over the Treaty of Amity with China and the Universal Declaration of Human Rights because the law was passed in the exercise of police power of the State, and police power cannot be bargained away through the medium of a treaty or a contract Gonzales v. Hechanova, G.R. L-21897, Oct. 22, 1963 On the validity of the executive agreement signed by the President for importation of rice from Burma and Vietnam without first securing from the National Economic Council the requisite certification, it was: Held: Although the President may, under the American constitutional system, enter into executive agreements without previous legislative authority, he may not, by executive agreements, enter into a transaction which is prohibited by statutes enacted prior thereto. Tanada v. Angara, G.R. 118295, May 2, 1997 Held: By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda international agreements must be performed in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain and police power. The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine commitments under WTO-GATT. Basis of International Law Law of Nature School (Samuel Pufendorf): That there is a natural ad universal principle of right and wrong, independent of mutual intercourse or compact, which can be discovered and recognized by every individual through the use of his reason and conscience. Since individuals compose the State whose will is but the collective will of the inhabitants, the State also becomes bound by the law of nature. The Positivist School (Richard Zouche): The binding force of international law is derived from the agreement of the States to be bound by it. In this context, international law is not a law of subordination but of coordination; The Eclectic or Grotian School (Emerich de Vatel/Christian Wolff): Insofar as it conforms to the dictates of right reason, the voluntary law may be said to blend with the natural law and be, indeed, an expression of it. In case of conflict, the natural law prevails, being the more fundamental law. Is International Law a true Law? If by law we mean, following the definition of the English school of analytic and positive jurisprudence founded by Bentham and Austin, a rule of conduct laid down for the guidance of an intelligent being by another intelligent being having power over him, then international law is not true law. But if by law we mean, following the definition of the school of historical jurisprudence founded by the German jurist Savigny and English jurist Sir Henry Maine, any rule recognized as a binding rule and observed as such, then international law is true law. Public International Law v. Private International Law Public International Law deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relation with persons, natural or juridical. Private International Law (appropriately named Conflict of Laws) embraces those universal principles of right and justice which govern the courts of one state having before them cases involving the operation and effect of the laws of another state or country. (Minor, Conflict of Laws, p. 4) As to persons on whom they operate: Public International law deals for the most part with nations as such, while Private International Law deals with private individuals. As to the transactions to which they relate: The former recognizes in general only transactions in which sovereign states are interested, while latter assumes control over transactions strictly private in nature, in which the states as such has generally no interest. As to the remedies applied:

In the contest between states arising under the law of nations, recourse is had first and generally to diplomatic channels and should such fail, to retorsion, reprisal, and other means short of war and in extreme cases to war. Meanwhile, in cases to which private international law is applicable, recourse is had to judicial tribunals acting under the authority and in accordance with the rules of procedure of the country which they sit. (Minor, Ibid, p. 213) Public International v. International Ethics International ethics (or morality) deals with the principles which should govern international relations from the higher standpoint of conscience, justice, or humanity. (Hershey, Essential of International Law, p.2) Public International Law v. International Comity International comity, in connection with public international law, relates to those rules of courtesy, etiquette, or goodwill which are or should be observed by governments in their dealings with one another on grounds of convenience, honor, or reciprocity. (Hershey, Ibid, p.3) Examples: Extradition of criminals in the absence of express agreement or treaty; Observance of certain diplomatic forms and ceremonies; and Faith and credit given in each state to the public acts, records, and judicial proceedings of other states Public International Law v. International Diplomacy International diplomacy (policy) in the wider sense relates to objects of national or international policy and the conduct of foreign affairs or international relations. It is generally based upon considerations of expediency or national interest rather than upon those of courtesy, humanity, or justice. (Hershey, Ibid, p. 3-4) Public International Law v. International Administrative Law International administrative law is that body of laws and regulations created by the action of international conferences or commissions which regulate the relations and activities of national and international agencies with respect to those material and intellectual interest which have received an authoritative universal recognition. It relates to such matters as international communication by means of postal correspondence and telegraphy, international transportation, copyright, crime, sanitation, etc. It is created by international congresses or conferences and commission, and is administered by international commission and bureaus as well as by national agencies. Aims of Public International Law To eliminate absolutism and the preponderance of force; To attempt to determine the rights of the people in relation to states and governments; and To fix the rules governing them, as well as the measures of legal protection designed to guarantee and safeguard such rights [Fiori, Elements of Private International Law, p. 35] Object of International Law To investigate and determine the international rights and reciprocal duties which must belong to every member of such society, and to fix the legal rules governing such rights and duties and the legal measures designed to protect their fulfillment. [Fiore, Ibid, p.35]
Sanctions of International Law Appeal to public opinion; Publication of correspondence; Censure by Parliamentary vote; Demand for arbitration with the odium attendant on a refusal to arbitrate; Rupture of relations; Reprisals, etc. [North Atlantic Fisheries Arbitration, Scott, Hague Court Reports (196), p. 141]
Reasons Why States Obey the Precepts of International Law Belief in the inherent reasonableness of international law and in their common conviction that its observance will redound to the welfare of the whole society of nations; Because of normal habits of obedience ingrained in the nature of man as a social being; Respect for world opinion or desire to project an agreeable public image in order to maintain goodwill and favorable regard of the rest of the family of nations; Constant and reasonable fear that violations of international law might visit upon the culprit the retaliation of other states; Moral influence of the UN and its power to employ physical force when warranted.
Enforcement of International Law Upon States in Time of Peace Channels of diplomacy between contending states or through international organizations or regional groups such as the UN, ASEAN, OAS, EU. If grievance is brought before the UN through the Security Council or the ICJ, these bodies may thereafter adopt such measures as may be necessary to compel compliance with international obligations or vindicate the wrong committed. By recourse to measure like mediation, arbitration, commissions of inquiry, rupture of diplomatic relations, retorsion or retaliation, display of force, use of force, reprisal, pacific blockade, embargo, non-intercourse. A State may treat the rules of international law as part of its municipal law. Its legislature may implement such rules by prescribing the norms for their observance and providing specific penalties for their violations. Examples: law on genocide and offense against diplomatic representatives. Enforcement of International Law in Time of War Through the war agencies of the belligerent states and by their prize courts; and By neutral states through their respective executive, legislative and judicial departments.

Chapter 2 SOURCES OF INTERNATIONAL LAW Sources of International Law Primary: International Treaties and Conventions International Customs General Principles of Law Secondary: Judicial decisions; and Writings of publicists International Treaties and Conventions Treaties may be divided into 2 classes: Legislative in character Those that formulate openly and avowedly rules of conduct meant to be binding on the members of the family of nations as a body or at least on all of them which are directly concerned with the matter referred to in the treaty. Examples: (3) conventions of the Hague Conference of 1899, (13) conventions of the Hague Conference of 1907, Warsaw Convention, UN Charter. Declaratory of international law - those that simply state rules previously recognized by the general body of nations. Examples: conventions in the Hague setting forth a code for the regulations of war on land; the rules of the Declaration of London of 1909 on blockade and contraband; and portions of the conventions of the Armed Neutrality of 1780 and 1800. International Customs Must be evidenced of a general practice accepted as binding law through persistent usage over a long period of time. Examples: Right of Angary given to a belligerent state to destroy or use neutral property in cases of extreme necessity; the maritime rules first set forth in the Rhodian Law; exterritoriality; extra-territoriality; rules of blockade. Requisites: a) must be the prevailing practice by a number of states; b) must be repeated over a considerable period of time; and must be attended by opinio juris (sense of legal obligation). Custom v. Usage While both connote those long established practices by states, they differ in that in usage, there is no attendance of a sense of legal obligation, i.e. the practice is not couples with the conviction that it is obligatory and right. Example of a usage is the old time ceremonial in the open sea which, although generally observed before, were generally not regarded as compulsory. General Principles of Law These are rules derived mainly from law of nature which are observed and recognized by civilized nations. Examples: res judicata, prescription, pacta sunt servanta, estoppel, and ex aequo et bono (what is good and just). Decision of Courts Most authoritative are those rendered by ICJ of the Hague; Decisions from other international tribunals or arbitration bodies and even national tribunals may be resorted to provided they show correct application and interpretation of the law of nations; Stare Decisis inapplicable in international law. Art. 59, ICJ Statute: The decision of the Court has no binding force except between the parties and in respect to that particular case. Writings of Publicists Must be fair and unbiased representation of international law ; and Author must be an acknowledged authority in the field. Mere credentials are insufficient as author may have been motivated by: National pride or interest; or Error in interpreting a rule in international law; or In supposing the existence of a rule which does not in fact form part of the law of the nations. Art. 38, Statute of the ICJ 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidenced of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This prohibition shall not prejudice the power of the Court to decide a case ex aequo et bono (what is good and just), if the parties agree thereto. Interpretation of Art. 38, ICJ Although the provision is silent on the question of whether the three primary sources have the same hierarchic value, by practice, treaties take precedence over customs, and customs over general principles of law. Exception: Principle of Jus Cogens. Principle of Jus Cogens Customary international law which has the status of a peremptory (i.e., absolute, uncompromising, certain) norm in international law cannot be permitted to be derogated. Peremptory norm is a norm accepted and recognized by the international community of states as a rule, from which no derogation is permitted. Examples: slave trade, piracy, terrorism, human rights Chapter 3, 4 & 5 INTERNATIONAL COMMUNITY, THE UN & CONCEPT OF STATE Subject v. Object

A Subject is an entity that has rights and responsibilities under international law. It has an international personality; it can be a proper party in transactions involving the application of the law of nations among members of the international community. An Object is a person or thing in respect of which rights are held and obligations assumed by the subject. It is not directly governed by the rules of international law. Its rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency. Subjects in International Law States Colonies and Dependencies Mandates and Trust Territories The Holy See The UN Belligerent communities International administrative bodies To certain extent: individuals State Defined A State is a group of people, living together in a fixed territory, organized for political ends under an independent government, and capable of entering into international relations with other states. State v. Nation A state is a legal concept, a nation is a racial or ethnic concept. The term nation as evidenced by its etymology (nasci, meaning to be born) indicates a relation of birth or origin and implies a common race, usually characterized a community of language and customs. A nation may comprise several states. Example: Arab nation. Or a state of several nations, i.e. the United States, Russia Elements of a State People: They must be a group of individuals, of both sexes, living together as a community. They must be sufficient in number to maintain and perpetuate themselves. Casual gathering of people being stranded or a community of pirates cannot constitute a state. Territory: That fixed portion on the earths surface occupied of the inhabitants. It may be as large as Russia or as small as Monaco with just 0.5 square mile in area or San Marino with just 38 square miles in area. Government: is the agency through which the will of the state is formulated, expressed and realized. It must at least be organized and exercising control over and capable of maintaining law and order within the territory. The identity of the state is not affected by the changes in government. Sovereignty: The supreme and uncontrollable power inherent in a state by which the state is governed. Meanwhile, independence, which is the power of the state to direct its own external affairs without interference or dictation from other states, is the external manifestation of sovereignty. Other Suggested Elements of A State Degree of Civilization Recognition from family of nations such as admission to the UN. It may also mean an act by which a state acknowledges the existence of another state, of another government or of a belligerent community indicating willingness to deal with the entity as such under international law. State Capacity Entity possessed with the essential elements is imbued with capacity as state; Entitles such entity to membership in the family of nations; Not ipso facto since recognition is deemed a political act; State capacity may not be total. It may be restricted due to treaty commitments or limited resources. Examples: Switzerland as being ineligible for UN membership due to its permanent neutralization; Liechstentstein was barred from joining the League of Nations in 1920 owing to its limited size, small population, lack of an army, geographical position and deputation to other states of some of the attributes of sovereignty; also Andorra, Monaco and San Marino. Classification of States Independent States o Simple o Composite: Real Union, Federal Union, Confederation, Personal Union and Incorporate Union. Neutralized States Dependent States o Protectorate o Suzerainty Simple State o A single and centralized government is established exercising power over both internal and external affairs of the state. o Examples: Philippines, Netherlands, Japan Composite State: Real Union o Two or more states are merged under a unified authority; o A single international person is formed upon merger through which they act as one entity but retain their separate identities. o Examples: Norway & Sweden [1815-1905], Austria & Hungary [1867-1918], and Egypt & Syria [1958-1961] Composite States: Federal Union o Two or more sovereign states are combined and ceased to be states upon merger. o A new state is created with full international personality. o Examples: USA, Russian Federation, German Empire of 1871 Composite States: Confederation o Confederated states retain their internal sovereignty and to some degree, also their external sovereignty;

A collective body is created to represent them as a whole for certain limited and specified purpose; o Member states can still maintain international relations and retain their international personality although treated as imperfect states. o Example: Confederation of German States in 1866 Composite States: Personal Union o Two or more states are brought together under the rule of the same monarch but the merged states does not become one international person. o Each state remains a state and an international person but their external policies are directed by the same ruler o Examples: Belgium and the former Congo Free State [1885-1905] Composite States: Incorporate Union o Two or more states form a central authority to direct their external and internal affairs; o It is distinguished from real union in that for the latter, only the external affairs of member-states are placed in a central authority. o Example: United Kingdom of Great Britain and Ireland. Neutralized States o One which by international agreement is bound to abstain from offensive hostilities and from acts which would involve such hostilities, in consideration of guarantee of its independence and integrity. o Accorded upon a states own request because it is weak and small; or granted due to its geographical situation such that its occupation may upset the balance of power in that region. o Neutralization does not destroy the character of a state as such. o Neutralized state can still enter into treaties involving peaceful relations. o Generally, cannot resort to war except in self-defense. o Examples: Switzerland [Congress of Vienna, 1815]; and Laos [1954 signed by 14 states] o Considering their number and for want for better term, they are called as such. They are states subject to control by other states in their external affairs. Two categories: Protectorate & Suzerainty Protectorate In the American sense: A state whose complete independence is limited by the control of another, In its international sense: Originally means a state placed under the protection of another state by virtue of a treaty arrangement. Lately, refers to the territory of a country which although not a state in the strict international sense, remains nonetheless independent. Examples: In the American sense: Cuba and Panama; In its international sense: Republic of San Marino under Italy, Korea and Manchuoko under Japan before WW 2 Suzerainty While a protectorate is established at the request of the weaker state for the protection of a strong power, In Suzerainty, it is the result of a CONCESSION from a state to a former colony which is allowed to become independent subject to the retention by the former sovereign of certain powers over the external affairs of the latter. Vatican City Area: 108.7 acres; Population: 900 Sovereignty exercised by the Holy See or the Supreme Pontiff [Pope]; Became state by virtue of the Lateran Treaty in 1929; Treated as such since it exercises certain prerogatives of states, e.g. treaty-making and diplomatic intercourse. Other International Persons The UN The Holy See [See Holy See v. Del Rosario, 238 SCRA 524] Colonies and Dependencies Mandates and Trust Territories Belligerent Communities International Administrative Bodies To some extent: Individuals The United Nations: Historical Development The League of Nations organized after WW 1 and dissolved in 1946; The London Declaration, June 12, 1941; The Atlantic Charter, Aug. 14, 1941; Declaration by United Nations, Jan. 1, 1942; Moscow Declaration, Oct. 30, 1943; Dumbarton Oaks Proposal, Washington, Aug. Oct. 1944; Yalta Conference, Crimea, Feb. 11, 1945;
Neutralized v. Neutral State A neutralized state is one which by international agreement is bound to abstain from offensive hostilities and from acts which would involve such hostilities, in consideration of guarantee of its independence and integrity. Whereas, a neutral state is one which is not a party to the war. A neutralized state exists in time of peace and in time of war. Whereas, a neutral state exists only in time of war. In case of neutralized state, the status of neutrality is guaranteed by explicit agreement of a limited number of powers, accompanied by a definite sanction and a corresponding obligation on the part of the neutralized state to remain as such; Meanwhile, in the case of neutral state, there are no specific guarantees, except the general rules of international law; there are no special sanctions but only the usual sanctions furnished thereby; and there is no obligation on the part of the neutral state to maintain its attitude of neutrality. Dependent States A legal oxymoron as statehood implies idea of independence.

San Francisco Conference, Apr. 25 June 28, 1945 [delegates from 50 nations unanimously approved the UN Charter] Oct. 24, 1945: UN Charter came into force. The conferees also called a general conference to be held at San Francisco on April 25, 1945 for the preparation of the UN Charter along the lines proposed in the informal conversations at Dumbarton Oaks. San Francisco Conference Attended by (50) nations between Apr. 25 to June 26, 1945. Prepared and unanimously approved the charter of the UN. Charter came into force on Oct. 24, 1945 after the members of the Big Five and majority of the other signatories filed their instruments of ratification. The UN Charter Composed of the Preamble, (111) Articles and Concluding provisions. Annexed in the charter is the Statute of the ICJ. Dual character of the charter: As a treaty because it derives its binding force from the agreement or the parties to it. As a constitution because it provides for the organization and operations of the different organs of the UN and the adoption of any change in its provisions through a formal process of amendment. Applicable to the members as well as non-member states, insofar as necessary for the maintenance of international peace and security. Charter superior than other treaties. Art. 103: In the event of a conflict between the obligations of the members of the UN under the present charter and their obligations under any other international agreement, their obligation under the present charter shall prevail. Procedure in Amending UN Charter Amendment resolution shall be adopted by a vote of 2/3 of the members of the General Assembly; and Ratified in accordance with their respective constitutional processes by 2/3 of the members of the UN, INCLUDING ALL THE PERMANENT MEMBERS OF THE SECURITY COUNCIL. Preamble DETERMINED: To save succeeding generations from the scourge of war; To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained; and To promote social progress and better standards of life in larger freedom, AND FOR THESE ENDS: To practice tolerance and live together in peace with one another as good neighbors, and To unite our strength to maintain international peace and security, and
League of Nations Founded as a result of the Treaty of Versailles in 19191920, a peace treaty that officially ended World War I between the Allied and Associated Powers and Germany ; League lacked armed force and so dependent on the so-called Great Powers The London Declaration June 12, 1941: several members of the British Commonwealth and a number of governmentin-exile met. Declared to work together, and with other peoples, in war and in peace, toward economic and social development. Atlantic Charter & Declaration By United Nations Aug. 14, 1941 US Pres. Franklin Delano Roosevelt and UK Prime Minister Winston Churchill signed the Atlantic Charter. It expressed their hope for a peace which will afford to all nations the means of dwelling in safety within their own boundaries and which will afford assurance that all men in all lands may lead out their live in freedom from fear and want. The foregoing principle was later embodied in the Declaration by United Nations signed on Jan. 1, 1942 by 26 countries and later adhered to by 21 other countries. Moscow Declaration First step toward creating the UN; Signatories: China, USSR, UK & US; Date: Oct. 30, 1943 Recognized the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of international peace and security. Dumbarton Oaks Proposals Initial blueprint of the UN prepared during the conference at Washington DC between Aug. Oct. of 1944. Participated in by the UK, USSR, US and later joined by China. Conceived the idea of forming the Security Council composed of the (5) conferees plus France as its permanent members. Yalta Conference in the Crimea February 11, 1945: Voting rules in the Security Council known as the Yalta Formula were agreed upon.

To ensure, by the acceptance of principles and the institution of methods that armed force shall not be used, save in the common interest, and To employ international machinery for the promotion of the economic and social advancement of all peoples, HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS: Accordingly, our respective Governments, through representatives assembled in the City of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization known as the United Nations. Purposes of the UN To maintain international peace and security; To develop friendly relations among nations; To achieve international cooperation; To be a center for harmonizing the actions of nations in the attainment of these common ends. Principles of the UN Sovereign Equality Pacta Sunt Servanta Amicable Settlement of Disputes Outlawry of War Requiring members assistance to UN and refrain assisting states against the UN Ensuring non-members to act in accordance with the UN principles Domestic jurisdiction clause Membership to the UN ORIGINAL Those states who participated in the UN Conference on International Organization at San Francisco or have previously signed the Declaration by the United Nations of January 1, 1942. Although not yet states at the time of the signing, the Philippines, India, Lebanon and Syria were included as original members. ELECTIVE Those states admitted to the UN by decision of the General Assembly after favorable recommendation of the Security Council. Eligibility for admission: Must be a state; Must be peace-loving; Must accept the obligations of the charter; Must be able to carry out these obligations; and Must be willing to carry out these obligations. Suspension of UN Members 2/3 vote of those present and voting in the General Assembly; Favorable recommendation by at least 9 members of the Security Council, including the 5 permanent members; and May be lifted only by the Security Council by a qualified majority. Expulsion of UN Members Must have persistently violated the principles in the Charter; By 2/3 vote of those present and voting in the General Assembly; Upon recommendation by the Security Council by qualified majority;
Withdrawal of Members No express provision; But according to authorities in IL, a member may withdraw if: a. The UN was revealed to be unable to maintain peace or could do so only at the expense of law and justice; b. The members rights and obligations as such were changed by a Charter amendment in which it had not concurred or which it finds itself unable to accept; or c. An amendment duly accepted by the necessary majority either in the General Assembly or in a general conference is not ratified. d. Only one instance of withdrawal: Indonesia in 1965 but resumed its seat after the overthrow of Sukarno. Six (6) Principal Organs of the UN 1. General Assembly 2. The Security Council 3. The Economic and Social Council 4. The Trusteeship Council 5. The International Court of Justice 6. The Secretariat The General Assembly Consists of all members; Each member entitled to not more than five (5) representatives with five (5) alternates;
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Regularly meets annually beginning on the 3 Tuesday of September each year or by special session called by majority of its members or at the request of the Security Council; Each member entitled to one (1) vote; Important questions are decided by 2/3 of those present and voting; All other matters, including determining whether the question is important, by majority of those present and voting. Functions of the General Assembly Deliberative making studies and recommendations on the development of IL and its codification; recommending measures for peaceful adjustment of any situation likely to impair the general welfare or friendly relations among nations. Supervisory Treating reports submitted by other organs; approving trusteeship agreements in non-strategic areas. Financial Approval of budget; apportionment of expenses among its members; and approval of financial arrangements with specialized agencies. Elective Election of non-permanent members of the Security Council; of all members of the ECOSOC. Constituent admission of members and amendment of UN charter.

The Security Council Key organ in the maintenance of inter-national peace and security; Composed of five (5) permanent members: China, France, UK, Russia and US and ten (10) non-permanent members: five (5) from African and Asian states, two (2) from Latin American states, two (2) from Western European and other states, and one (1) from Eastern European states. International Trade Commission
The Trusteeship Council Administration of the International trusteeship system; Composed of: a) the members of the UN administering trust territories, b) the permanent members of the SC not administering trust territories; and c) other members as necessary and elected by the GA for a 3-year term . The International Court of Justice Judicial organ of the UN; All members of the UN ipso fact parties to the Statute. A non-member can become party upon approval by the GA after favorable recommendation of the SC; Court composed of fifteen (15) members [judges]. Qualifications/Restrictions in the Election of ICJ Judges Must be of high moral character; Possesses the qualifications required in their respective countries for appointment to their highest judicial offices; or Jurisconsult of recognized competence in international law; Not two judges may be nationals of the same state; In such event the more than one national of the same state obtain the required majorities, only the eldest shall be considered as elected. Term: nine (9) years subject for re-election. Staggered terms so that 1/3 of the membership at 3-yr interval. The Court to elect President and Vice-President to serve for 3 years with reelection. To remain in session at the Hague or elsewhere, except during judicial vacations; May either meet en banc or in chambers composed of 3 or more judges when dealing with cases on labor, transit and communications. Decision is by majority of the judges present; Quorum is 9 when full court is sitting. President of ICJ: Peter Tomka of Slovakia ICJ to decide contentious cases Render advisory opinions; Jurisdiction is based on the consent of the parties under the optional jurisdiction clause of the Statute (Art. 360) and comprises all cases that parties have referred to it and all matters especially provided for in the Charter or in treaties and conventions in force; Advisory opinions on legal question arising within the scope of their activities are given upon request of the GA or the Security Council and other organs of the UN when authorized by the GA.
Non-permanent members elected for 2-year term by the GA; not eligible for immediate reelection. Voting in The Security Council The Yalta Formula: Each member entitled to one (1) vote; On substantial questions (non-procedural): Affirmative vote of nine (9) members required, including all the five (5) permanent members; A permanent member may veto on any non-procedural matter to prevent its passage; On procedural questions: Affirmative vote of nine members or more; But determining whether a question is procedural or not is a non-procedural matter; Hence, any permanent member may veto on such determination or on the substantial question when raised. So-called as the double veto rule. The Economic and Social Council Composed of fifty four (54) members with one vote each; All elected by the GA; Term of three (3) years with immediate re-election; Staggered terms so as to provide for replacement or re-elections of 1/3 of the body every year. Mandates of The ECOSOC Exert efforts toward: Higher standards of living, full employment and conditions of economic and social progress and development; Solutions of international economic, social, health and related problems, and international, cultural and educational cooperation; and Universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Subsidiary Organs of The ECOSOC Subsidiary: Commission on the Status of Women The different Regional Economic Commissions for Europe, Asia and the Far East, and Latin America Collaborative with: International Monetary Fund; and
The Secretariat Chief administrative organ of the UN; Headed by the Secretary-General who is chosen by the GA upon recommendation of the Security Council;

Term of the SG: five (5) year subject to re-election; SG is the highest representative of the UN, authorized to act in its behalf and entitled to full diplomatic immunity. He may waive the immunities and privileges of other key-officials of the UN Note: Any lacking requisite will make the struggle merely an insurgency without any legal personality in international law. Effects of Recognition of Belligerency Responsibility for acts of rebels resulting in injury to nationals of the recognizing state shifted to the rebel government; The legitimate government recognizing the rebels must observe the laws of war in conducting the hostilities; Third states recognizing the belligerency shall maintain neutrality; and Recognition is only provisional, e.g. for the duration of the armed struggle, and only for the purpose of the hostilities. International Administrative Bodies Certain administrative bodies, created by agreement among states, may be vested with international personality, provided that they are: a) non-political, b) autonomous, and c) not subject to control by any state. Examples: ILO, FAO, WHO, IMF, European Commission of the Danube, Central Commission for the Navigation of the Rhine. Individuals Traditionally, only considered as objects. But presently, a number of international agreements grant a certain degree of international personality to individuals. Examples: UN Charter provision on faith in fundamental human rights, dignity and worth of the human person, and in the equal rights of men and women; Universal Declaration of Human Rights provision on the inherent dignity and the equal and inalienable rights of all members of the human family; Some treaties, e.g. Treaty of Versailles, which confer on individuals the right to bring suit against States before national or international tribunals; The need for States to maintain an International Standard of Justice in the treatment of aliens; The Genocide Convention which condemns the mass extermination of national, ethnic, racial or religious groups; The 1930 Hague Convention with its rules to prevent the anomalous condition of statelessness; The 1954 Covenant Relating to the Status of Stateless Persons which grants stateless individuals certain basic rights; and The 1950 European Convention on Human Rights and Fundamental Freedoms, which grants private associations and individuals the right to file complaints before the European Court on Human Rights.
Colonies & Dependencies Under IL, a colony or dependency is part and parcel of the parent state, hence no legal standing ; However, there were such entities given recognition to participate in international affairs and granted de facto status as sovereign state. Hence, when acting in such manner, colonies and dependencies are treated as international persons. Example: India when still colony of Great Britain was allowed membership in the League of Nations and signed as charter member of the UN. The Philippines also while still colony of the US. Colony a dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit another country. Dependency a territory distinct from the country in which the supreme sovereign power resides, but belongs rightfully to it, and subject to the laws and regulations which the sovereign may prescribe. Mandates and Trust Territories Mandates are former territorial possession of states defeated in World War I and placed under the control of the League of Nations. Many of the mandates became Trust Territories placed under the Trusteeship Council of the UN. Trust Territories those territories placed under the Trusteeship Council. Three Types of Trust Territories: a) Those held under mandate under the League of Nations, b) Those territories detached from the defeated states after World War II; and c) Those voluntarily placed under the system by the states responsible for their administration. Condominium a term used in describing a territory jointly administered by two states. Belligerent Communities That portion of the population which rises up in arms against the legitimate government of the state when such upheaval or conflict widens and aggravates. While not being conferred with all the rights of an independent state, the recognizing state concedes to the belligerent government recognized rights and imposes upon the obligations of an independent state in matters relating to the war being waged. Conditions for Recognition of Status of Belligerency Must have an organized civil government with control and supervision over the armed struggle; The conflict must be serious and widespread with the outcome uncertain; It must have occupied a substantial portion of the national territory; and It must be willing to observe the rule and customs of war.
Modes in Creating a State Revolution (e.g. U.S.) Unification (e.g., Unification of City States of Sardinia, Florence, Naples, Rome, etc. in 1870 to become the state of Italy)
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Secession (e.g.,Bangladesh which seceded from Pakistan in 1971) Assertion of Independence (e.g., The Philippines) Agreement (e.g., Netherlands created by Congress of Vienna of 1815 & Poland, which was revived as a separate state by agreement of the Allied Powers after World War II) Attainment of Civilization (e.g., Japan) Means the substitution of one state for another, the former assuming the rights and obligation of the latter. It may be universal or partial succession. It arises in the event a state is extinguished or created under the modes already discussed. Classification of State Succession Universal Succession When the international personality of the state succeeded to is completely absorbed by the successor. Examples: Forcible or voluntary annexation of a state to another, Division of a state into two or more states Entrance of a state into a federal union. Partial Succession When the succeeding state acquires only a portion of the territory of another state. Examples: In the case of conquest followed by cession; In the emergence of a new state on the foundation of a revolting territory. Effects of State Succession When Entire State is Annexed When only a portion of Territory is separated from another and a new state is erected Transfer of Sovereignty. Effects When Entire State Is Annexed Upon treaties: Political treaties abrogated while treaties of territorial or transitory nature remain and binding on absorbing state; Executory Treaties like that of extradition and of amity, etc. are wiped out and third states lose whatever benefits they have under such. Upon Public Debts: General Rule: Public debts are assumed by the absorbing state. Exception: Annexation by conquest and public debts were incurred for the prosecution of the war; and War arose because of the transactions resulting in the incurring of the public debts. Upon public property: Absorbing state succeeds into all public property and acquiring all rights therein. But subject to charges or burdens resting upon the property under the doctrine of Res transit cum suo onere. Upon obligations with private persons: General Rule: Obligations of the annexed state towards private person should be respected. Exceptions: Worthless obligations of an insolvent state annexed without recourse by a solvent state which cannot be converted into valuable ones by the latter; Justifiable refusal by the annexing state to obligations incurred by the annexed state for the purposes of war against it; Private rights which caused or contributed to the war which resulted to annexation.
Principle of State Continuity Once its identity as an international person has been fixed and its position in the international community established, the state continues to be the same corporate person whatever changes may take place in its international operation and government. Otherwise put: The change in the government of the state, the number of its people or its area does not affect the international personality of the state unless such change in the number of people or area thereof is such as to make it impossible to maintain the staate. The Sapphire Case Facts: Louis Napoleon, as Emperor of France, filed in a California Court a civil claim for damages in connection with a collision between the French vessel Eurayale and the Sapphire. He was subsequently deposed while the case was pending. Held: The reigning sovereign represents the national sovereignty, and that sovereignty is continuous and perpetual residing in the proper successors of the sovereign for the time being. Napoleon was the owner of the Euralyle, not as individual, but as sovereign of France. On his deposition the sovereignty does not change, but merely the person in whom it resides. Extinguishment of a State Merger Dissolution Deprivation of freedom to direct its external affairs leading to partial loss of international personality; Radical impairment or actual loss in one or more of its essential elements (ex. Extermination or En masse emigration of the populace) Succession of States Rule: The change in the government of a state, the number of its people or its area does not affect its international personality, unless such change in the number of people or area is such as to make it impossible to maintain the state. The state remains as a person in international law, with all its rights and obligations. Extinguishment of a State Disappearance of one or more of the essential elements; Annexation, whether voluntary or forcible, into another state; Division into two or more states; and Incorporation into a federal union. State Succession Defined
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Their relations with each other remain unchanged. Upon Private Rights: Protection of private rights is obligatory upon the new sovereign. Transfer of allegiance of subjects operate ipso facto unless otherwise provided in a treaty or the people withdraw from the territory and resettle elsewhere. Effects When Only Portion Of Territory Is Separated and New State Established Upon Treaties: Treaties of the mother state continue to be binding upon itself, unless by their nature and connection with the separated territory they must naturally fall. Upon Public Debts: Mother state continues to be bound even if they were incurred on account of the separate state. Exception: Agreement between the mother state and the separate state relieving the former. Upon Public Property: The new state succeeds to all the public property found in the territory. Upon obligations with Private Persons: The obligations of the territory with private persons are in general respected. Exception: Those that are personal to the displaced sovereign. EFFECTS IN THE CESSION OF A TERRITORY Upon Private Property: No effect on private property rights. The cession is necessarily understood to pass the sovereignty only, and not to interfere with private property. Upon Treaties of the Ceding State: General Rule: The obligations of the ceding state in the treaty continue. Exception: Treaties in respect to the territory annexed abrogated if political in character. Exception to exception: Treaties which are transitory or territorial in character continue. Upon Public Debts of Ceding State Incurred Over Such Territory: Unless assumed by the annexing state in the annexing treaty, the public debts of the ceding state incurred over such territory remain with the ceding state. Upon Public Obligations of the Ceding State: Public obligations of the ceding state over such territory, if territorial, are assumed by the acquiring state. Contracts relating to the public property within the acquired territory, entered into by the former sovereign, are usually acknowledged by the new sovereign upon proof that the claims are just and equitable, although no mention is made in a treaty of cession confirming the transfer. Upon Allegiance Of The People In the Ceded Territory: Allegiance to former sovereign is dissolved and the inhabitants will now owe allegiance to the new sovereign, unless they withdraw from the state. Upon Property Rights and Other Private Rights of the People In the Ceded Territory: Property rights and other private rights of the people therein remain unaffected. Effects In The Transfer of Sovereignty The allegiance to the old sovereign is dissolved. Inhabitants will now owe allegiance to the new sovereign, unless they withdraw from the state. Their relations with each other remain unchanged. People v. Perfecto, 43 Phil. 887 Held: The political laws of the former sovereign are automatically abrogated and may be restored only by a positive act on the part of the new sovereign. However, non-political laws, such as those dealing with familial relations, are deemed continued unless they are changed by the new sovereign or are contrary to the institutions of the successor state. SUCCESSION OF GOVERNMENTS Integrity of the state is not affected. It continues as the same international person, except only that its lawful representative is changed. Rights of the predecessor government are inherited in toto by the successor government. Obligations are assumed, if the new government was organized constitutionally. Otherwise, purely personal or political obligations of the predecessor government may be rejected. U.S. (For GeorgeW. Hopkins) v. Mexico [1927] Held: Debts incurred by the old government for the purchase of military equipment used against the new government may be disowned. On the other hand, postal money orders purchased from the old government in the ordinary course of business must be honored by the new government. Chapter 6 RECOGNITION Recognition Defined It is an act by which a state acknowledges the existence of: Another state; A government; or A belligerent community Indicating its willingness to deal with the entity as such under the rules of international law. Theories on Recognition
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Declaratory That recognition merely affirms an existing fact such as the possession by the state of all its essential elements, and that it may be granted or withheld at pleasure. Constitutive That recognition is compulsory or legal and that it is the very act of recognition that constitutes the recognized entity into an international person and that such act may be compelled once the elements of international personality are established. Power to Recognize Under Art. VII of the 1987 Constitution, it is the President who is given the authority to send and receive diplomatic representatives, to enter into treaties, to establish blockades, and in general to act as the foreign policy spokesman of the nation. Forms of Recognition Express: By way of formal proclamation or announcement, whether verbal or in writing, and through a stipulation in a treaty, a letter or on the occasion of an official call or conference. Implied: When recognizing state and recognized state enter into a treaty regulating their relationship in general or when they exchange diplomatic representatives. In case of a belligerent community: when it blockades a port held by the recognized belligerent or by observing neutrality in the conflict. Recognition of States A free act of a state by which it acknowledges 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 A manifestation of the recognizing state that it is ready and willing to deal with the recognized government as the highest organ acting for and in behalf of a particular state. It is important since, as a rule, a state cannot have any official intercourse with another where its government is not recognized. Unless recognized, such government is without standing in the courts of another state. There is no legal right of a new government to be recognized or a legal duty of one state. Recognition of State v. of Govt Recognition of state includes the recognition of government since the latter is an essential element of the former. Recognition of a government does not necessarily signify the existence and recognition of a state as such government may not be independent. Recognition of state is generally irrevocable. Recognition of a government may be withdrawn. Kinds of De Facto Governments Those established by the inhabitants who rise in revolt against and depose the legitimate regime. Example: Commonwealth of Cromwell which supplanted the monarch under Charles I of England; Those established in the course of war by the invading forces of one belligerent in the territory of the other belligerent. Example: Japanese occupation government; and Those established by the inhabitants of state who secede therefrom without overthrowing its government. Example: Confederate government of America. Doctrines on Recognition of Governments Tobar-Wilson Estrada Stimson Tobar-Wilson Doctrine A doctrine that precludes recognition of any government established by revolution, civil war, coup d etat or other forms of internal violence until the freely elected representatives of the people have organized a constitutional government. First expressed in the 1907 Central American Republics at the suggestion of Foreign Minister Tobar of Ecuador and reiterated by President Woodrow Wilson of the US in a public statement made in 1913. Stimson Doctrine Precludes the recognition of any government established as a result of external aggression. Formulated by US Secretary of State Stimson in 1932. Adopted by the League of Nations through a resolution stating that: It is incumbent upon the members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris Estrada Doctrine The diplomatic representatives in a country where a political upheaval has taken place will deal or will not deal with whatever government is in control at the time and either action shall not be taken as a judgment on the legitimacy of the said government. Attributed to Foreign Minister Genaro Estrada of Mexico. Example: Recognition of PROC based on the one china policy Recognition of De Facto Govt v. De Jure Govt Recognition de jure is relatively permanent; de facto provisional. Recognition de jure vests title to the properties of the government abroad; recognition de facto does not. Recognition de jure results to full diplomatic relations; recognition de facto is limited to certain juridical relations. Effects of Recognition of States and Government Full diplomatic relations are established except where the government recognized is de facto. The recognized state or government acquires the right to sue in the courts of the recognizing state. The recognized state or government is entitled to the possession of the properties of its predecessor in the territory of the recognizing state.
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All acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own courts Note: Non-suability of a state connotes recognition. Reason: Whether a government is recognized or not, it still enjoys immunity from suit in a foreign jurisdiction. Oetjen v. Central Leather Co., 246 U.S. 297 Facts In the course of the revolution in Mexico in 1913, General Pancho Villa as commander of the North under General Carranza against General Juerta who had declared himself provisional president after the assassination of Madero, President of Mexico seized certain hides belonging to Martinez for the latters failure to pay his share of the contributions levied in the area. At the time of the seizure, the Carranza Government controlled about 2/3 of Mexico but the U.S. did not recognize any government at the time. Gen. Carranza sold the hides to Finnegan Brown Co., a Texas corporation, which in turn sold it to Central Leather Co. The hide were later shipped to New Jersey where they were subject to replevin in favor of Oetjen, the assignee of Martinez & Co. During the course of the trial, the U.S. Government recognized the Carranza Government as a de facto government on October 19, 1915 and later on August 31, 1917 as the de jure government of Mexico. Held: When a government which originates in revolution or revolt is recognized by the political department of the government as the de jure government of the country in which it is established, such recognition is RETROACTIVE in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence. That the conduct of one independent government cannot be successfully questioned in the courts of another for to permit the validity of the acts of one sovereign state to be reexamined and perhaps condemned by the courts of another would very certainly imperil the amicable relations between the governments and the peace of nations. The seizing and selling of the hides in question was an action of the legitimate Mexican government when dealing with a Mexican citizen, and upon soundest reasons, was not subject to re-examination and modification by the courts. Underhill v. Hernandez,168 U.S. 250 Facts: In the course of a revolution in 1892 against the administration in Venezuela, General Hernandez, supporting the anti administration forces under the leadership of Crespo, entered Bolivar and assumed control over the city as its civil and military chief. Underhill was US citizen who constructed a waterworks system for the city of Bolivar under a contract with the government and was engaged in supplying the city with water. He applied to General Hernandez, as the officer in command, for a passport to leave the city. General Hernandez refused at first. But after requests made by others in Underhills behalf, he issued a passport on October 18, 1892. An action was filed in the US to recover damages for the detention of Underhill. On October 23, 1892, the Crespo government was formally recognized by the U.S. as the legitimate government of Venezuela. Held: The acts complained of were the acts of a military government representing the authority of the revolutionary party as a government, which afterwards succeeded, and was recognized by the US. In the case of a civil war, it the party seeking to dislodge the existing government succeeds, and the independence of the government it has set up is recognized, the acts of such government, from the commencement of its existence, are regarded as those of an independent nation. Every sovereign state is bound to respect the independence of every other sovereign state. The court of one country will not sit in judgment on the acts of another, done within its territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. Republic of Peru v. Dreyfus Brothers, 1888 Held: If a de facto government set up by overthrowing the existing government becomes a de jure government through recognition, and later on it is in turn overthrown by a succeeding revolution which returns the old government, the obligations incurred by it remain binding upon the state. Russian Socialist Federated Soviet Republics v. Jacques R. Cibrario, 235 N.Y. 255 Held: An unrecognized government could not and should not be permitted to sue in the US. Permission to a foreign government to sue in the courts of another is based upon comity, in the absence of a treaty. But until said government has been recognized, no such comity exists. The Plaintiff concededly has not been so recognized. There is, therefore, no proper party before us. Recognition, and consequently, the existence of comity, is purely for the determination of the legislative or executive department of the government. Who is the sovereign of a territory is a POLITICAL QUESTION. Max Wulfsohn, et al. v. Russian Socialist Federated Soviet Republics, US CA of New York, 1923 Held: To cite a foreign potentate into a municipal court for any complaint against him in his public capacity is contrary to the law of nations and an insult which he is entitled to resent. This applies whether recognized or not.
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In either case, to do so would vex the peace of nations; the hands of the sate department would be tied. Unwillingly it would find itself involved in disputes it might think unwise. Such is not the proper method of redress if a citizen of the US is wronged. The question is a POLITICAL ONE, not confided to the courts but to another department of the government. Wherever an act done by a sovereign in his sovereign character is questioned, it becomes a matter of negotiation, or of reprisals or of war. Existence of Belligerency A belligerency exists when the inhabitants of a state rise up in arms for the purpose of overthrowing the legitimate government. Distinguished from insurgency: Insurgency is the initial stage of belligerency; belligerency is more serious and widespread. Insurgency is directed by military authorities; belligerency is under a civil government. Insurgency is usually not recognized; whereas there are settled rules relating to recognition of belligerency. 3 Stages of Internal Dissension 1. Simple lawlessness 2. Insurgency 3. Belligerency Note: When a simple lawlessness spreads and develops into with a political motivation, it becomes an insurgency. An aggravation of insurgency is a belligerency. Recognition of Belligerency When the conflict widens and aggravates, it may be necessary, for practical reasons, to consider the formal recognition of the belligerent community. Conditions: There must be an organized civil government directing the rebel forces; The rebels must occupy a substantial portion of the territory of the state; The conflict between the legitimate government and the rebels must be serious, making the outcome uncertain; and The rebels must be willing and able to observe the laws of war. Consequences of Recognition of Belligerency When recognition is extended by the parent state: The Belligerent community is considered a separate state for purposes of the conflict. Their relations shall be governed by the laws of war and their relations with other states governed by the laws of neutrality. Troops of either belligerent, when captured, shall be treated as prisoners of war. The parent state shall no longer be liable for any damage that may be caused to third states by the rebel government. Both belligerents can exercise the right of visit and search upon neutral merchant vessels. The rebel government is accorded full war status (same with the legitimate government) as regards all other states. It may establish blockades, maintain prize courts and take other allowable war measures
When recognition is extended only by third states: All consequences as enumerated are effective only as to them, i.e. the recognizing
rd
3 state and the belligerent community. Do not bind other state not extending recognition.
FUNDAMENTAL RIGHTS OF STATES Right of existence and Self-Defense Right of Sovereignty and Independence Right of Equality Right of Territorial Integrity Right of Jurisdiction Right of Diplomatic Intercourse Chapter 7 RIGHT OF EXISTENCE AND SELF-DEFENSE Right of Existence and Self Defense Most important state right. Most comprehensive of the attributes of the state. All other rights are supposed to flow or derived from it. State may take such measures, including the use of force to resist any danger to its existence. Such action being the exercise of an inherent right, does not depend for its validity on the previous recognition of the state asserting it or on the consent of other states. Requisites On The Exercise of Right of Self Defense Art. 51, UN Charter: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if any armed attack occurs against a member of the UN, until the Security Council has taken the measure necessary for the maintenance for the maintenance of international peace. Right of existence and self-defense is the most comprehensive of all other rights of a state, as the latter accordingly flow from it. In the exercise of this inherent right, the state may take such measures, including the use of force, as may be necessary to counteract any danger to its existence. Limitation of the exercise of right of existence and self-defense
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Any forcible measure taken in the exercise of the right must be justified by a necessity of self-defense instant, overwhelming, and leaving no choice of means and no moment for deliberation. Mere apprehended danger or any direct threat to the state does not, by itself alone, warrant the employment of any force against a suspected or potential enemy. The best defense is offense Policy US Secretary Elihu Root (1914): The exercise of the right of self-protection may and frequently does extend the limits of the territorial jurisdiction of the state exercising it. The strongest example would be the mobilization of an army by another power immediately across the frontier. Every act done by the other power by be within its territory. Yet the country threatened by the state of facts is justified in protecting itself by immediate war. Grotius: Equity was entirely opposed to the idea that the possibility of being attacked gives us the right to attack on our part; It was only when there was just ground war on other counts that the growing strength of a rival might properly influence a decision to go to war. Examples of Actual Exercise of Right of Self-Defense Russian mobilization in 1914 which was answered with a declaration of war by Germany on the ground of self-defense. Great Britains seizure in 1807 of the Danish fleet in order to prevent it from falling into the hands of the France whom it was at war. Japans invasion of Korea in 1904 to prevent Russia from taking over the territory. Russian attack of Finland in 1939 meant as a strategic measure to defend itself from an anticipated German invasion. The Cuban Missile Crisis US established a quarantine over Cuba in 1962 upon order of Pres. JFK. Aimed to prevent the delivery of prohibited material to Cuba by the employment of US land, sea and air forces. All vessels proceeding toward Cuba were subject to interception and their cargo inspected, invoking the right of visit and search. USSR back down and WWIII averted. Regional Arrangements on Collective Self-Defense Organization of American States North Atlantic Treaty Organization Warsaw Pact (defunct) South East Asian Treaty Organization (defunct) Note: Collective self-defense arrangements is recognized under Art. 51 of the UN Charter and in Art. 52, Sec. 1. Balance of Power An arrangement of affairs so that no state shall be in a position to have absolute mastery and dominion over others. Examples on application of the doctrine: Congress of Vienna of 1815 Congress of Berlin of 1878 Triple Alliance and Triple Entente before WWI Allied and Axis Powers during WWII NATO Warsaw Pact Aggression It is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any other manner inconsistent with the U.N. Charter. (Resolution of the GA, Dec. 14, 1974) Acts of Aggression Invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another state or part thereof. Bombardment by the armed forces of a state against the territory of another state. Blockade of ports or coasts of a state by the armed forces of another state. Attack by the armed forces of a state on the land, sea or air forces, or marine and air fleet of another state. Use of armed forces of one state which are within the territory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement. Action of a state in allowing its territory, which it has placed at the disposal of another state, to be used by the other state for perpetrating an act of aggression against a third state. Sending by or on behalf of a state of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein. Effects of Aggression Not consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful. Conditions In The Proper Exercise of Right of Self-Defense There must be an armed attack. Self-defensive action taken by the attacked state must be reported immediately to the Security Council.
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Such action shall not in any way affect the right of the Security council to take at any time such action as it deems necessary to maintain or restore international peace and security. Note: Exercise of right available to all state, whether a UN member or not. Chapter 8 RIGHT OF INDEPENDENCE & SOVEREIGNTY Independence v. Sovereignty Independence: It is the right of a state to manage all its affairs, whether internal or external, without control from other states. (It is the external manifestation of sovereignty.) Sovereignty: It is the supreme power of the state to command and enforce obedience, the power to which, legally speaking, all interests are practically subject and all wills subordinate. (It refers to the supreme and uncontrollable power inherent in the state by which such state is governed.) Essential Attributes of Sovereignty Perpetuity Comprehensiveness Exclusiveness Absolutism Inalienability; and Unity Nature of Independence It is not absolute; subject to restrictions that are binding upon all states, such as: Non-employment of force or threat of force of a state in its relations with other states (Art. 2, UN Charter); Observance of pact sunt servanta; Not arrogating unto itself the exclusive use of the open seas to the detriment of other states under the principle of mare liberum; Not to reject certain rules that directly impair its freedom of action such as those imposed upon neutrals with respect to belligerent rights; and Maintenance of such rules as the maintenance of the international standard of justice, observance of basic human rights, and the exemption from its jurisdiction of certain persons and property under the principle of ex-territoriality and extraterritoriality. Correlative Duty of the Right of Independence Every state is under the correlative obligation of non-intervention in view of its own independence. Even as it expects its independence to be respected by other states, so too must it be prepared to respect their own independence. Intervention It is an act by which a state interferes with the domestic or foreign affairs of another state through the use of force or threat of force. Intervention is justified if in pursuance to exercise of right of self-defense or when undertaken by the Security Council for the maintenance of international peace and security, as a measure against oppression, and on humanitarian. Classes of Intervention Internal: Interference by one state, between disputing sections of the community in another state, the matter of dispute being usually but not necessarily some constitutional change. External: Interference in the relations, generally hostile, of other states. Punitive: Adoption of punitive measures by one state against another in order to compel the latter to observe its treaty engagements or to redress some breach of law which it has committed. Some Grounds Used to Justify Intervention Intervention for self-preservation To maintain conditions necessary for the existence of international relations To carry out treaty stipulations To preserve balance of power Intervention by general sanction Intervention on the ground of humanity and religion. Contemporary Examples of Intervention Based on Self-Defense U.S. quarantine over Cuba in 1962 Resorted to after intelligence information of the establishment of Russian missile bases in Cuba. Cuba is only 90 miles from the US mainland. Action taken as a measure of self-defense inasmuch as it was felt by the American government that the bases, if allowed to remain in Cuba, would be a menace to the national security of the US. International Declarations against Intervention Domestic jurisdiction clause in the UN Charter: Nothing contained therein shall authorize the organization to intervene in matters which are essentially within the domestic jurisdiction of any state. UN Declaration of Human Rights: Every State has the duty to refrain from intervention in the internal or external affairs of the other State. OAS Charter: No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personnel of the State or against its political, economic, and cultural elements. Hague Convention of 1907: The Contracting Powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its nationals. The foregoing embodies the so-called DRAGO DOCTRINE.
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Antecedents to the Drago Doctrine In 1902, Great Britain, Italy and Germany established a blockade against Venezuela with the object of forcing the latter to comply with certain contractual and other obligations owing to the blockading powers. The action was later the subject of universal disapprobation resulting to the formulations by Foreign Minister Drago of Argentina the popularly known Drago Doctrine. Exceptions to Drago Doctrine: The Porter Resolution Intervention is permitted if: The debtor state refused an offer to arbitrate the creditors claim; or Having agreed to arbitrate, prevented agreement on the compromis; or Having agreed to compromis, refused to abide by the award of the arbitrator. The Monroe Doctrine Enunciated by US President Monroe on Dec. 2, 1823. Implies that the US will intervene in cases affecting the countries of the American hemisphere in their relations to European powers, when they are likely to involve occupation of territory, either permanent or of such character as to threaten permanency. Asiatic Monroe Doctrine The Far East be preserved for the Far East with occidental powers keeping off their hands; and that as the United States guarded the countries of the American hemisphere against foreign encroachments, so must Japan guard those of the Far East. The Truman Doctrine Proposed by President Truman in a message to the US Congress on Mar. 12, 1947. In justifying its economic and military aid to Greece and Turkey and later to all of Europe, it declared as a US policy to support free peoples who are resisting attempted subjugation by armed minorities or by outside pressures. The Eisenhower Doctrine It is the policy of the US to help any State in the Middle East to resist aggression against the independence and integrity of such state. Chapter 9 RIGHT TO EQUALITY Basis of the Right of Equality Art. 2, UN Charter: The Organization is based on the principle of the sovereign equality of all its Members. Montevideo Convention of 1933: State are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law. OAS Charter: Every American state has the duty to respect the rights enjoyed by other states in accordance with international law. Declaration of Rights and Duties of States (International Law Commission: Every State has the right to equality in law with every other States. Essence of Equality All members of the family of nations, regardless of their size, population, form of government, wealth and origin are legally equal; and That they are regarded as having similar privileges, immunities and duties. Vattel: A dwarf is as much a man as a giant is; a small Republic is no less a sovereign State than the most powerful Kingdom. Manifestations of Equality Each state is entitled to one vote in international conferences. In signing of international documents, the principle of alternat is followed. In alternat, each power occupies the first place in the list of signatures in the copy which it receives. Legal Equality v. Factual Equality All states are legally equal regardless of their size, wealth and power. This right of equality is not absolute. Because in practice, there is inequality in fact. Factual inequality Non-procedural questions in the Security Council being decided by the Big Five through the use of veto power under the Yalta Formula. Also to ratification of any proposal to amend the UN Charter. Permanent membership of the Big Five in the Security Council. In providing for the elective membership in the Security Council: 5 from African and Asian States but only one from Easter European states. Chapter 10 RIGHT OF TERRITORY Territory Defined A fixed portion of the surface of the earth inhabited by the people of the state. The territory must be permanent and indicated with precision since the limits generally define the jurisdiction of the state. Right to Acquire Territory Inferred from the war powers of the Congress and the treaty-making powers of the President. Can be asserted only in accordance with the generally accepted principles in international law. Acquisition of Territory By discovery and occupation By prescription
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By cession By subjugation By accretion
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The Netherlands based its claim on its exercise of sovereignty over the island since the 18 century and when the alleged cession was made on Dec. 10, 1898. Held: Discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island. Even admitting that the Spanish title still existed as inchoate in 1898 and must be considered as included in the cession under Article III of the Treaty of Paris, an inchoate title could not prevail over the continuous and peaceful display of authority by another state for such display may prevail even over a prior, definitive title put forward by another state. The Clipperton Island Case (26 A.J.I.L. 390.1932) Facts: A French Navy Lieutenant while cruising about one-half mile off Clipperton, drew up, on board the commercial vessel LAdmiral, an act by which, conformably to the orders given him by the Minister of Maine, proclaimed and declared sovereignty over the island beginning from that date to belong in perpetuity to His Majesty the Emperor, Napoleon III, and to his heirs and successors. Thereafter, the vessel put off without leaving in the island any sign of sovereignty. The island was found to be terra nullius at that time. Mexico later claimed the territory in 1897. Held: If a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed possession of that state, from that moment the taking of possession is considered accomplished and the occupation is formally completed. Dereliction A territory is lost by dereliction when the state exercising sovereignty over it: Physically withdraws from it; With the intention of abandoning it altogether. Prescription It is a derivative mode of acquisition. Transfer of sovereignty is due adverse and uninterrupted possession for sufficiently long period of time. There is no fixed rule as to the length of time needed. Cession
Loss of Territory By abandonment or dreliction By cession By subjugation By prescription By erosion By revolution By natural causes Discovery and Occupation Applicable only to terra nullius (territory not belonging to any state). Not applicable to open seas and outer space. Both are considered res communes. Requisites of Effective Discovery and Occupation The nationals of the discovering state, in its name or by its authority, must first take POSSESION of the territory through formal proclamation and the symbolic act of raising the national flag; and They must establish thereon an organization or government capable of making its laws respected (ADMINISTRATION). The Kalayaan Islands Claim Tomas Cloma, between 1947-1956, discovered the Kalayaan Islands, a 53-island group not part of the Spratlys. Subsequently, Cloma ceded his rights to the Phil government. On June 11, 1978, the Philippines formally laid claim to the island upon passage of PD 1596 based on occupation and exercise of jurisdiction. The Municipality of Kalayaan was established as part of Palawan. On May 20, 1980, the Phils. registered its claim with UN Secretariat. Its claim is justified by reason of history, indispensable need and effective occupation and control. Inchoate Title of Discovery When a state discovers a territory but does not take steps to actually administer it. In the meantime, other states are barred to set up claim of the territory. If administration is not undertaken within a reasonable time, the inchoate title of discovery is lost. The Islands of Palmas Case (2 UN Rp. Of Int. Arb. Awards, 831) Facts: The island was disputed between the US and Netherlands. The US claimed by virtue of a valid cession from Spain, which in turn had based its right on discovery and occupation.
Another derivative mode in the acquisition of territory. A territory belong to one state is transferred to the sovereignty of another by virtue of an agreement between them. It is consensual. Transfer of title effected upon the meeting of the minds of the parties. Examples of Cession:
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Purchase by the US of Alaska from Russia in 1867. Gift by Austria of Lombardy to France in 1859. Exchange between Great Britain and Germany of the island of Helgoland and the territory adjoining German East Africa in 1890. Treaty of Paris ceding the Philippines from Spain to the US on Dec. 10, 1898. Cession of Korea to Japan under a treaty concluded between them on August 22, 1910. Multi-national (e.g. Mekong River, Congo River, Nile River) International (e.g., Rhine River, Danube River) Boundary (e.g., St. Lawrence River between the US and Canada)
Summary on Jurisdiction over Rivers If traversing only in one state Exclusive to that state. The state may forbid their use by other states if it chooses to dos so or may allow their use under certain regulations that it may see fit. If flowing through two or more states Each state has jurisdiction over that portion within its boundaries. If two states have jurisdiction over opposite banks The middle of the main channel, if navigable, is the boundary; if non-navigable, the middle of the river itself. Thalweg Doctrine In the absence of a specific agreement between riparian states, the boundary line is laid on the MIDDLE OF THE MAIN NAVIGABLE CHANNEL. When the boundary river changes its course by gradual and normal process, e.g. accretion or erosion, the dividing line follows the new course. If deviation is violent and abrupt, e.g. avulsion, the boundary line shall still be on the old river bed. Unless there is agreement between riparian states, the dividing line on a bridge across the boundary river shall be on the middle of the bridge regardless of the location of the channel underneath. Bays A bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as or larger that that of a semi-circle whose diameter is a line drawn across the mouth of the indentation, or if the mouth is less than 24 NM in width. If the distance between the low-water marks of the natural entrance points of a bay exceeds 24 NM, a closing line may be drawn between these two low-water marks and the waters enclosed thereby will be considered internal waters. Exception: Historic Bays
Subjugation Also a derivate mode of acquisition. Territory of one state is conquered in the course of war and is thereafter annexed to and placed under the sovereignty of the conquering state. Conquest alone confers only an inchoate right. There must be formal act of annexation to complete the acquisition. Examples: Annexation of Abyssinia (Ethiopia) by Italy in 1935. Accretion A mode of adding to the territory of a state by natural process. By the gradual deposit of soil on the coast through the action of the water; or By human labor. Components of State Territory Terrestrial Domain Maritime and Fluvial Domain Aerial Domain Terrestrial Domain The land mass on which the people live. It may be integrate, as in the case of Iran; or Dismembered, as in the case of the US; or Partly bounded by water, like Burma; or Completely surrounded by water, like Iceland; or Consist of several islands, like the Phils. Maritime and Fluvial Domain Consists of the bodies of water within the land mass and the waters adjacent to the coasts of a state to a specified limit. Included in the maritime and fluvial domain are land-locked lakes, rivers, man-made canals, the waters in certain gulfs, bays and straits, and the territorial sea. Internal Waters Also called national or inland waters. Those found in the bodies of water within the land mass and the waters in gulfs and bays up to the point where the territorial waters begin. Rivers
Historic Bays These are bays whose waters are considered internal but which should not have that character were it not for the existence of a historic title. Examples: Bay of Cancale in France, Bay of El Arab in Egypt, Chesapeake Bay in the US, Hudson Bay in Canada and Zuyder Zee in Holland.
National (e.g., Pasig River)
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Character of waters in a Strait A strait is a comparatively narrow passageway connecting two large bodies of water. Where the distance between the opposite coasts is not more 6 NM, the waters in the strait are considered territorial, subject to right of innocent passage. In case the two shores are owned by different state Jurisdiction of each littoral state extends up to the middle of the most navigable channel. Territorial Sea The belt of waters adjacent to the coast of the state, excluding the internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction. 12 NM from the low-water mark of the coast or baseline. Notes: Contiguous zone 12 NM from the outer limits of the territorial sea; EEZ 200 NM from the low-water mark of the coast or baseline. Both are not considered part of the territorial sea. Normal Baseline v. Straight Baseline Method Under the normal baseline method, the territorial sea is drawn from the low-water mark of the coast (to the breadth claimed) following its sinuosities and curvatures but excluding the internal waters in bays and gulfs. Under the straight baseline method, straight line are made to connect appropriate points on the coast without departing radically from its general direction. The waters inside these lines are considered internal. (Art. 5, UNCLOS) National Territory of the Phils. Comprises the Philippine archipelago, with all the islands and waters embraced therein; and All other territories over which the Philippines has sovereignty or jurisdiction; Consisting of its terrestrial, fluvial and aerial domain; Including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines (Archipelagic Doctrine). Basis on Territorial Claim Treaty of Paris, Dec. 10, 1898 ceding the Philippines Island from Spain to the US. Treaty of Washington, Nov. 7, 1900 between Spain and the US ceding Cagayan, Sulu and Sibuto. Treaty between the US and UK, Jan. 2, 1930 ceding Turtle Islands and Mangsee Islands. 1935 Phil. Constitution claiming Batanes Islands. 1973 Phil. Constitution claiming territories belonging to the Phil by historic right or legal title. PD 1596, June 11, 1978, officially laying claim to the Kalayaan Islands by virtue of occupation and exercise of jurisdiction. The Fisheries Case (ICJ Reports [1951] 116) On the question of the UK of the use by Norway of the straight baseline method in defining its territorial waters, it was Held: The method of straight baselines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; That even before the dispute arose, this method had been consolidated by a constant and sufficiently long practice in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law. Aerial Domain The airspace above the terrestrial domain and the maritime and fluvial domain of the state up to an unlimited altitude but not including the outer space. Theories on Where Outer Space Begins 90-km above earth: Based on the lowest altitude for artificial earth satellites to orbit without being destroyed by friction. 84-km above earth: Based on the theoretical limits of air flights. Functional Approach: Based on the nature of the activity undertaken. Chapter 11 RIGHT OF JURISDICTION Jurisdiction Defined It is the authority exercised by a state over persons and things within or outside its territory, subject to certain exceptions. It may classified into: Jurisdiction over its nationals; Terrestrial domain; Maritime and fluvial jurisdiction The continental shelf The open seas; Aerial domain; Outer space; and Other territories Condominium The term condominium is used to refer to the exercise of joint jurisdiction in a state by two or more states. Example: Joint jurisdiction by the US, Germany and UK in Samoa until 1899. Ex-territoriality v. Extraterritoriality Right of exterritoriality refers to the privilege or the right of certain persons and things to be regarded as detached portions of the state to which they belong, moving about on the
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surface of foreign territory yet remaining separate from it, and, therefore, not subject to local laws and local jurisdiction. It is based on international cutom. Right of extraterritoriality refers to the right of persons only to be exempted from local law and jurisdiction based on treaty stipulations or convention. Sphere of Influence It is a territory within which the political influence or the interests of one nation are permitted by other nations to be more or less exclusive. Personal Jurisdiction The power exercised by a state over its nationals. Based on the theory that a national is entitled to the protection of his state wherever he may be and is therefore bound to it by a duty of obedience and allegiance. This duty follows him even when he is outside the territory of his state. Assertion of Personal Jurisdiction over Phil. Citizens Art. 15, NCC: Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Art. 2, RPC punishes certain offenses even if committed outside the Philippine territory, including those against the national security and the law of nations as well as those committed by public officers and employees of the Republic in the discharge of their functions. NIRC provision imposing tax even to non-resident Filipinos on all their income, including those earned abroad but excluding income by OFW. Territorial Jurisdiction The authority of a state, based on its sovereignty and the right of domain, which it exercises over persons and things within its boundaries. Exceptions to Territorial Jurisdiction Foreign states, heads of states, diplomatic representatives, and consuls to a certain degree. Foreign state property, including embassies, consulates, and public vessels engaged in non-commercial activities. Acts of state Foreign merchant vessels exercising the rights of innocent passage or arrival under stress. Foreign armies passing through or stationed in its territories with its permission. Such other persons or property, including organizations like the UN, over which it may, by agreement, waive jurisdiction Land Jurisdiction Jurisdiction over the land domain of a state is exclusive. No act or process can take effect within the land domain without the consent of the territorial sovereign. Internal waters, like rivers and lakes are assimilated to land territory and jurisdiction over them is the same as jurisdiction over the land domain.
Jurisdiction over foreign vessels within Maritime and Fluvial domain Foreign Public Vessels: None provided they are not engaged in private business. Foreign merchant vessel: Local state exercises full civil jurisdiction. But criminal jurisdiction may or may not be asserted based on the English or French Rule. English Rule v. French Rule in Criminal Jurisdiction English Rule: The local state assumes jurisdiction over all offenses committed on board foreign merchant vessels within its ports, except only those of a petty nature affecting the discipline of the ship. Expresses the territorial principle in criminal jurisdiction. French Rule: The flag state has jurisdiction over all offenses committed on board its merchant vessels unless such crimes are of such a grave nature as to compromise the peace of the foreign port in which it may be anchored. Expresses the nationality principle in jurisdiction. Note: The Philippines follows the English Rule. Criminal jurisdiction on board a foreign ship (Art. 27, UNCLOS) The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: if the consequences of the crime extend to the coastal State; if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. Five Principles Of Criminal Jurisdiction Territorial Principle which vests jurisdiction in the state where the offense was committed. Nationality Principle which vest jurisdiction in the sate of the offender. Protective Principle which vests jurisdiction in the state whose national interest is injure, such as counterfeiting, treason or espionage. Universality Principle which vests jurisdiction in the state which has custody of the offender like in piracy. Passive Personality Principle which vests jurisdiction in the state of the offended party.
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Objective Territorial Jurisdiction If a man who fires a shot in State A and kills somebody in State B just across the border, State B has OBJECTIVE TERRITORIAL JURISDICTION over the crime committed and over the person of the offender. Reason: The shot took effect within the territory of State B. Civil jurisdiction in relation to foreign ships (Art. 28, UNCLOS) The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. Without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters. Contiguous Zone The waters beyond the territorial sea but not in excess of twelve miles from the outer limits of the territorial sea over which the coastal state exercises a PROTECTIVE JURISDICTION. To prevent infringement of its customs, fiscal, immigration or sanitary regulations Continental Shelf (Art. 76, UNCLOS) Comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. Right of coastal state over its continental shelf is exclusive Continental Margin (Par. 4, Art. 76) Comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof. Coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either: a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope. Patrimonial Sea (EEZ) The expanse of sea extending 200 NM from the coast from the coast or baselines of the state over which it asserts EXCLUSIVE JURISDICTION AND OWNERSHIP OVER ALL LIVING AND NONLIVING RESOURCES FOUND THEREIN. Principle of Mare Liberium No state has sovereignty over any portion of the seas beyond its territorial waters. No state can take jurisdiction over any other than its own ship upon the high seas. Available to the use for all states for purposes of navigation, flying over them, laying submarine cables or fishing. In times of war, hostilities may be waged on the open seas. Sic utere tuo, non alienum laedas. The Lotus Case (PICJ Ser. A., No. 10, 1927, Hudson, World Ct. Rep. 20) Facts: The Lotus, a French steamer, and the Bozkourt, a Turkish vessel, collided on the Aegean Sea, outside territorial waters resulting in the sinking of the latter vessel and death of several of Turkish nationals. The Lotus docked at Constantinople, where its officer of watch at the time of the accident, a French national, was subsequently convicted of manslaughter by the Turkish courts. France protested arguing that the collision took place in open seas Held: The offense for which Lieutenant Demons appears to have been prosecuted as an act of negligence or imprudence, having its origin on board the Lotus whilst its effects made themselves felt on board the Bozkourt. These elements are legally entirely inseparable so much so that their separation renders the offense non-existent. It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. THIS IS A CASE OF CONCURRENT JURISDICTION BY FLAG STATES. Penal jurisdiction in matters of collision or any other incident of navigation (Art. 97, UNCLOS) In the event of a collision or any other incident of navigation concerning a ship on the high seas, Involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, No penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.
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No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. Valid Exercise of Jurisdiction beyond Territorial Sea Extraterritoriality Exterritoriality Extreme necessity or in self defense Hot pursuit which begun in marginal waters and continued in the open sea Enforcement of revenue laws Enforcement of quarantine, sanitary and police regulations Arresting of pirates Fishing purposes Better policing of the coast Piracy Based on customary or conventional international law, a state may extend its jurisdiction beyond its territory: By assertion of its personal jurisdiction over its nationals By exercise of its right to punish certain offenses committed outside its territory against its national interests. On the strength of its relations with other states or territories, e.g. establishment of protectorate, condominium, administration of trust territory or occupation of enemy territory in time of war Acquisition of exterritorial rights. Enjoyment of easements or servitudes, e.g. right innocent passage and arrival under stress. The Portuguese Enclaves Case Held: Portugal had a right of passage through Indian territory in order to reach its own territory. This right is limited to the extent necessary for the exercise of Portuguese sovereignty over the Enclave and subject to the regulation and control of India, in respect of private persons, civil officials and goods in general. Note: The Portuguese Enclaves are also known as Portuguese India, comprising of a number of enclaves on Indias western coast, including Goa proper, the coastal enclaves of Daman and Diu, and the enclaves of Dadra and Nagar Haveli, which lie inland from Daman. Chapter 12 RIGHT OF LEGATION Right of Legation or Diplomatic Intercourse Refers to the right of the state to send and receive diplomatic missions, which enables states to carry on friendly intercourse. It is not a natural or inherent right but exist only by common consent. No legal liability is incurred by the state for refusing to send or receive diplomatic representatives. Governed by the Vienna Convention on Diplomatic Relations (1961) Agents Of Diplomatic Intercourse Head of State Foreign Secretary or Minister Diplomatic Envoys Head Of State Embodiment of, and represents the sovereignty of the State. Enjoys the right to special protection for his physical safety and the preservation of his honor and reputation. His quarters, archives, property, and means of transportation are inviolate under the principle of exterritoriality. Exempt from criminal jurisdiction. Also from civil jurisdiction, except when he himself is the plaintiff. Not subject to tax or to exchange or currency restrictions.
It is an armed violence at sea which is not a lawful act of war. It may be tried in any country where the offender may be found or into which he may be brought It is a crime against all mankind. (Pp v. Lol-lo and Saraw, 43 Phil. 19)
Aerial Jurisdiction The subjacent state has jurisdiction over the air space above it to the upward limits of the atmosphere. No foreign aircraft, civil or military, may pass through the aerial domain of a state without its consent. Five Air Freedoms Freedom to fly across foreign territory without landing Freedom to land for non-traffic purposes Freedom to put down traffic originating in the state of the aircraft Freedom to embark traffic destined to the state of the aircraft Freedom to embark traffic destined for, or to put down traffic coming from a third state. Jurisdiction Over Outer Space Like the open seas, outer space, or the region beyond the earths atmosphere is not subject to the jurisdiction of any state. Outer space and other celestial bodies are not susceptible of national appropriation. However, astronauts and their satellites and equipment, while in outer space, remain under the jurisdiction of the state that sent them. (Treaty on Principles Governing Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1968) Jurisdiction Over Other Territories
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Entitled to ceremonial amenities except if her is traveling in cognito. [Mighell v. Sultan of Johore, L.R. (1894), 1 Q.B. Div. 149] Sending state resorts to informal inquiry (enquiry) as to the acceptability of a particular envoy. Receiving state responds with an informal conformity (agrement). The process is concluded by appointment and formal accreditation of the representative.
Foreign Secretary His office, the Foreign Office handles the actual day-to-day conduct of foreign affairs. He is the immediate representative of the head of state and directly under his control. He makes binding declarations on behalf of his state on any matter falling within his authority, i.e. questions relating to international claims against the state. He is the head of the foreign office and has direction of all ambassadors and other diplomatic representatives of his government. Diplomatic Envoys Ambassadors or nuncios accredited to heads of state; Envoys, ministers or internuncios accredited to heads of state; and Charge daffaires accredited to ministers for foreign affairs. Note: The are classifications of heads of mission under the Vienna Convention on Diplomatic Relations in 1961. Classification important only in matters of protocol or grant of special honors. Other Membersh Of The Diplomatice Mission Diplomatic Staff composed of those engaged in diplomatic activities and accorded diplomatic rank. Administrative & Technical Staff those employed in the administrative and technical service of the mission. Service Staff those engaged in the domestic service of the mission Diplomatic Corps Composed of all diplomatic envoys accredited to the same local or receiving state. Headed by a DOYEN DU CORPS or doyen, who by tradition is usually the Papal Nuncio or the oldest ambassador, or in the absence of the ambassadors, the oldest Minister Plenipotentiary. Appointment of Envoys President appoints, sends and instructs the diplomatic and consular representatives. His prerogative to determine the assignment of the diplomatic representative cannot be questioned. [De Perio-Santos v. Macaraig, G.R. No. 94070, Apr. 10, 1992] Sending state not totally free in choosing it diplomatic representatives, especially heads of mission. Receiving state has the right to refuse to receive the representative. Process Of Agreation The informal process of avoiding rejection of diplomatic representative that may result to strained relations between the sending and receiving states.
Commencement Of Diplomatic Mission Envoy presents himself at the receiving state armed with the following papers: Lettre de creance (Letter of credence) with his name, rank and general character of his mission and request for favorable reception and full credence; Diplomatic passport authorizing his travel; Instructions which may include document of full powers (pleins pouvoirs) giving him authority to negotiate on extraordinary or special business; Cipher or Code Book for use in sending secret communication to his home country. Functions Of A Diplomatic Mission Represents the sending state in the receiving state; Protects in the receiving state the interests of the sending state and its nationals within the limits allowed by international law; Negotiates with the government of the receiving state; Ascertains, by all lawful means, the conditions and developments in the receiving state and reporting these to the sending state; and Promotes friendly relations between the sending state and the receiving state and developing their economic, cultural and scientific relations. Proper Conduct Of Diplomatic Mission Exercise utmost discretion and tack, taking consideration always the preservation of the goodwill of the sending state; Avoid interference with the internal affairs of the receiving state. Not to aid one political party at the expense of another. Not to publicly criticize the policies or acts of the receiving state or its nationals. Not to use his mission for espionage, dissemination of propaganda against the receiving state, or subversion of its government. Diplomatic Immunities & Privileges Personal inviolability Immunity from jurisdiction Inviolability of diplomatic premises Inviolability of archives Inviolability of communication Exemption from testimonial duties Exemption from taxation Other privileges Personal Inviolability Not liable to any form of arrest or detention.
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Receiving state should treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity. WHO v. Aquino, 48 SCRA 242 Facts: Respondent judge issued a warrant for the search and seizure of certain goods alleged to have been brought into the Philippines illegally by an official of the World Health Organization. The WHO and the official moved to quash the warrant on the ground of diplomatic immunity enjoyed by the official. The DFA Secretary and OSG joined them in the representation but the judge denied the motion Held: The search warrant is void. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch. Where the plea of diplomatic immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept the claim of immunity so as not to embarrass the executive arm of the government in conducting the countrys foreign relations. [See also The Holy See v. Rosario, 238 SCRA 524] Inviolability Of Diplomatic Premises & Archives The diplomatic premises shall be inviolable. The agents of the receiving state may not enter them without the consent of the head of mission. This immunity is known as FRACHISE DE LHOTEL. Exception: Extreme cases of necessity or there is imminent danger that a crime of violence is to be perpetrated in the premises Such premises cannot be entered or searched, and neither can the goods, records and archive be detained by local authorities even under process of law. Inviolability Of Communication Universal recognition of the right of an envoy to communicate fully and freely with his government. The mission may employ all appropriate means to send and receive messages, whether by ordinary or in cipher, by any mode of communication or by diplomatic couriers. Diplomatic pouch and diplomatic couriers also enjoy inviolability. Exemption From Testimonial Duties A diplomatic agent is not obliged to give evidence as a witness. However, he is not prohibited by international law fro doing so and may waive this privilege. Example: Venezuelan envoy testifying at the trial on the assassination of US President Garfield in 1881. Exemption From Tax
Immunity From Criminal Jurisdiction The diplomatic agent is immune from criminal jurisdiction of the receiving state. But this does not mean he is exempt from local laws; it does not give him the right to violate the laws of the receiving state. Diplomatic privilege does not import immunity from legal liability BUT ONLY EXEMPTION FROM LOCAL JURISDICTION [Dickinson v. Del Solar, 1 K.B. 376] Immunity From Civil & Administrative Jurisdiction The diplomatic agent also enjoys immunity from civil and administrative jurisdiction of the receiving state. No civil action of any kind may be brought against him, even with respect to matters relating to his private life. His properties are not subject to garnishment, seizure for debt, execution and the like. Note: The children born to a diplomatic agent while he possesses diplomatic status are regarded as born in the territory of his home state. Exceptions: A real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission; An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; and An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. The diplomatic agent cannot be compelled to testify, not even by deposition before any judicial or administrative tribunal in the receiving state, without the consent of his government. But immunity does not protect a public official who commits unauthorized acts inasmuch as such are not acts of state. He may be sued for such unlawful acts in his private capacity Republic Act No. 75 Subject to the rule on reciprocity, it declares as void any writ or process issued to: the person of any ambassador or public minister of any foreign state, authorized and received by the President; or any domestic servant of any such ambassador or minister; or his goods or chattels distrained, seized or attached. Exceptions: Citizens/inhabitants of the Philippines, where the process is founded upon a debt contracted before his employment in the diplomatic service; and Domestic servants of the ambassador or minister whose names are not registered with the DFA
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The diplomatic agent is exempt from all taxes, customs duties, and other dues and from social security requirements under certain conditions. [See Art. 33, Vienna Convention on Diplomatic Relations] His personal baggage is also free from inspection, except when there are serious grounds for presuming that it contains articles not exempt from customs duties or not admissible into the receiving state. Other Privileges Freedom of movement and travel in the territory of the receiving state. Exemption from all personal services and military obligations. Use of the flag and emblem of the sending state on the diplomatic premises and the residence and means of transportation of the head of mission. Precedence Among Diplomatic Representatives In conferences or congresses of state, precedence is according to the alphabetical FRENCH NAMES of states. Where a number of states are signatories, treaties to be signed in alphabetical order, with due regard to the principle of alternat. Precedence In Social Functions Precedence is dependent upon nearness to the person at the head of the table: 1st place the chair at his right; 2nd place the chair at his left; 3rd place the second chair at his right; 4th place the second chair at his left; et. seq. In processions: Generally, the place of honor is the first or sometimes the last. Protocol in short processions: (2) dignitaries the 1st has the precedence (3) dignitaries the middle is the place of honor; the first, the 2 nd in honor; and the third, the third in honor (4) dignitaries 2nd is the place of honor; the 1st is the second in honor; 3rd & 4th, third and fourth respectively. (5) dignitaries middle is the place of honor; the one in advance is the 2nd in honor; the 4th place is the 3rd in honor; the 1st place is the 4th in honor, and the 5th place is the 5th in honor. Gun Salutes Ambassadors 19 guns Envoys Extraordinaire and Ministers Plenipotentiary 15 guns Ministers Resident 13 guns Charge daffairs 11 guns Duration Of Immunities & Privileges From the moment he enters the territory of the receiving state until he leaves or upon expiration of a reasonable time in which to do so. With respect to official acts, immunity shall continue ad infinitum. Privileges are available even in transitu, when traveling through a third state on his way to or from the receiving state.
Waiver of Immunities Diplomatic privileges may be waived. But the waiver cannot be made by the individual concerned SINCE IMMUNITIES ARE NOT PERSONAL TO HIM. Waiver may be made only by the government of the sending state for head of mission. In other cases, by either the government or the chief of mission. Waiver does not include execution of judgment. A separate waiver is necessary Termination Of Diplomatic Mission Death Resignation Removal Abolition of office Recall by the sending state Dismissal by the receiving state War between them Extinction of the state Chapter 13 CONSULS Nature Of Office Of Consuls They are state agents residing abroad for various purposes but mainly in the interest of COMMERCE AND NAVIGATION. Unlike diplomatic agents, they are not charged with the duty of representing their states in political matters Nor are they accredited to the state where they are supposed to discharge their functions. Consuls do not enjoy all the traditional diplomatic immunities and privileges. They are, however, entitled to SPECIAL TREATMENT under the law of nations. Historical Evolution of Consuls Dates back to 6 BC when Egyptians allowed the Greeks at Naucratis to choose from among themselves a magistrate who would apply to them the laws of their own country. They were called PROXENOI (protectors or prostrates). The practice was modified by the Romans with the appointment of their PRAETOR PEREGRINUS, who interpreted the law between the Romans and foreigners. The Visigoths, after their conquest of Rome, later established a special court that applied to foreigners their own national laws rather than the law of the territorial sovereign. On the other hand, the Chinese also created similar courts in the 8th century while the Arabs in the 9th century.
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When commercial trade flourished among the Mediterranean cities and the Near East, treaties of capitulation were made exempting European nationals in the Near East from local jurisdiction and made them triable by their own consuls. Kinds of Consuls Consules Missi Professional or career consuls who are NATIONALS of the appointing state and required to devote full time to the discharge of their consular duties. Consules Electi They may or may not be nationals of the appointing state. They perform their consular functions only in addition to their regular callings. Consuls are further classified according to rank or grade: Consul General, Consul, Vice-Consul, and Consular Agent. Appointment of Consuls Two important documents are necessary before a consul assumes his functions: 1. Lettre de Provision (Letters Patent) The of appointment or commission issued by the sending state and transmitted to the Secretary/Minister, Foreign Affairs of the receiving state. 2. Exequatur The authority given to consul by the RECEIVING STATE authorizing them to exercise their duties. By it, consuls are public office both Functions/Duties Of Consul Promotes the commercial interests of his country in the receiving state and observes the commercial trends and developments therein for report to his home government. Performs duties relating to navigation, such as visiting and inspecting vessels of his own state which may make call at his consular district. He may also exercise a measure of supervision over such vessel, adjusting matters pertaining to their internal order and discipline. Issues passport to the nationals of the sending state Issues visas and other documents relating to entry into and travel within the territory of the sending state. Issues visa invoices and certificates of origin of goods destined for the territory of that state. Looks after the interests of fellow national and extends to them official assistance when needed. Authenticates documents, solemnizes marriages, registers births and deaths, administers temporarily estates of deceased nationals within the consular district, advises and adjusts differences between fellow nationals, etc. Immunities & Privileges of Consul Freedom of communication in cipher or codes. Inviolability of archives, BUT NOT THE PREMISES. Hence, legal processes may be served and arrests made within consular premises. Exempt from local jurisdiction for offenses COMMITTED IN THE DISCHARGE OF OFFICIAL FUNCTIONS, but not other offenses EXCEPT MINOR INFRACTIONS. Exempt from testifying on OFFICIAL COMMUNICATIONS or on matters pertaining to consular functions. Exempt from taxes, customs duties, military or jury service. Right to display their national flag and emblem in the consulate. Exempt from taxes, customs duties, military or jury service. Right to display his national flag and emblem in the consulate. The immunities and privileges are also available to the members of the consular post, their respective families, and the private staff. WAIVER OF IMMUNITIES, in general may be made ONLY BY THE SENDING STATE. Immunity from jurisdiction on acts performed in the exercise of consular duties will subsist without limitation of time.
In Re Kasenkina The US rejected the protest made by Russia against the service of writ of habeas corpus upon the latters consul at his official residence in New York for the production of a Russian schoolteacher alleged to have been detained in the premises. Note: Consular offices may be expropriated for purposes of national defense or public utility. Walthier v. Thomson, 189 F. Supp. 319 (1960) Facts: Thomson was sued for damages resulting from certain statements allegedly made by him while in the discharge of his duties. Held: A consular official is immune from suit when the acts complained of were performed in the course of his official duties. Hence, statements allegedly made to Walthier by Thomson were uttered in pursuance of the latters official functions as consular officer, then the suggestion of the ambassador of Canada should be adopted and the defendant held immune. Termination Of Consular Mission Removal Resignation Death Expiration of terms Withdrawal of the exequatur War between the receiving and sending states Note: Severance of consular relations does not necessarily terminate diplomatic relations. Chapter 14 TREATIES Treaty Defined A formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treaty-making capacity, for the purpose of regulating their mutual relations under the law of nations. It embraces such other compacts as: conventions, declarations, covenants, acts, concordats, etc. Under Philippine law, AN EXECUTIVE IS NOT A TREATY for purposes of requiring senate concurrence.
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In International law, both a treaty and executive agreement are the same. Functions Of Treaties To settle finally actual and potential conflicts; To be able to modify the rules of international customary law by means of optional principles or standards; To promote a transformation of unorganized international society into one which may be organized on any chosen level of social integration; and To provide the humus for the growth of international customary law. Essential Requisites Of A Valid Treaty Treaty-making capacity Competence of the representatives Freedom of consent Lawful subject matter Compliance to constitutional processes. Treaty-making Capacity Every state possesses the capacity to conclude treaties, as an attribute of sovereignty. Except when limited by reason of its status or by previous self-imposed inhibitions. Protectorate is restricted in the control of its external affairs; a neutralized state may not enter into a defensive or offensive alliance. However, there are instances when mere colonies are allowed to sign treaties or join international conferences. Under customary international law, international organizations are deemed to possess treaty-making capacity, although such capacity may be limited by the purpose and the constitution of such organization. Authorized Representatives Heads of State usually exercise treaty-making power, i.e. President in the case of the Philippines subject to concurrence by 2/3 of all the members of the Senate. If a party negotiating a treaty produces an authorization which appears to be complete and regular, although in fact constitutionally defective, the other party, if it is ignorant and reasonably ignorant of the defect, is entitled to ASSUME THAT THE INSTRUMENT IS IN ORDER and to hold the former to the obligation of the latter. Freedom Of Consent Given by way of: Signature Exchange of instruments constituting a treaty Ratification Acceptance Approval or accession; or By other means manifesting consent. If there is error in consent or it is induced through fraud TREATY IS VOIDABLE If obtained by corruption of its representative INVALID. A treaty forced upon the person of the negotiator is VOID AB INITIO. Example: Treaty signed at Bayonne in 1807 by Ferdinand VII under threat by Napoleon that the Spanish monarch would be tried for treason if he did not abdicate within 12 hours. However, if the pressure is applied not upon the person of the negotiator but UPON THE STATE ITSELF VALID. Example: Treaty of Peace.
Reason: Treaties of peace exacted from the vanquished belligerent should be regarded NOT AS VOLUNTARY COMPACTS ENTERED INTO AS THE PRICE OF PEACE, BUT A SENTENCE imposed by the international community upon aggressors for crimes committed against international law and the general peace. [Fenwick, 442] Contemporary principle in regard to treaty of peace: The position has now probably changed insofar as war has been prohibited by the UN Charter and the General Treaty for the Renunciation of War. The state which has resorted to war in violation of its obligations under these instruments cannot be held to apply force in a manner permitted by law. Accordingly, duress in such cases must be regarded as vitiating the treaty. [Oppenheim-Lauterpacht, Sec. 499] Subject Matter Object and subject matter must be lawful, i.e. within the commerce of nations and in conformity with international law. The Treaty of Tordesillas in 1494 is INVALID because it sought to divide between Spain and Portugal parts of Atlantic, Pacific and Indian Oceans.
Ratification In accordance to constitutional processes of the respective parties. Non-compliance will prevent enforcement of the treaty even if already signed by the authorized negotiators. In the Phils., 2/3 of all the members of the Senate should concur in the treaty. Treaty-making Process 1. Negotiation 2. Signing of the Treaty 3. Ratification 4. Exchange of Instruments of Ratification 5. Registration 1. Negotiations Representative must be armed with credentials known as pleins pouvoirs (full powers) to be exhibited to the other negotiators at the start of the formal discussion.
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Issued from competent authority of a state designating a person/s to represent the state for negotiating, adopting or authenticating the text of a treaty, expressing the states consent to be bound by the treaty, or accomplishing any other act with respect to the treaty. Parties to submit a draft of the proposed treaty. Together with the counter-proposals, the draft becomes the basis of subsequent negotiations. 2. Signature Purpose: To symbolize the good faith of the parties. Does not indicate the FINAL CONSENT of the state, especially if ratification is required under municipal law. Principle of alternat is observed. 3. Ratification The act by which the provisions of a treaty are formally confirmed and approved by a State, and by which the State expresses its willingness to be bound by the treaty. Purpose: To enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. Valid Grounds For Non-Ratification o Error in points essential to the agreement. o Introduction of matters of which the instructions of the plenipotentiaries do not give them power to treat and negotiate. o Clause contrary to the public law of either of the states. o A change in the circumstances, making the fulfillment of the stipulations unreasonable. o Introduction of conditions impossible to fulfill. o Failure to meet the approval of the political authority whose approval is necessary to give effect to the treaty. o Lack of proper credentials on the part of the negotiators or the lack of freedom in negotiating. Reservation A unilateral statement, made by s State when signing, ratifying, accepting, approving or acceding to a treaty. Its purpose is to exclude or modify the legal effect of certain provisions of the treaty in their application to that State. The state making the reservation remains a party provided that the reservation is compatible with the object and purpose of the treaty. Binding Effects Of Treaties A a general rule, non-parties are not bound by the stipulations in a treaty under the principle of PACTA TERTIIS NEC NOCENT NEC PROSUNT. A treaty is binding only on the contracting parties, including not only the original signatories but also other states which, although they may not have participated in the negotiation, have been allowed by its terms to sign it later by the process so-called as accession. Attitudes Which A Party May Indicate Without Being Origanally A Party Adhesion Acceptance of principles without necessarily becoming a party. Approbation Show of favorable attitude to a treaty by actions or deeds. Accession Becoming a party of a non-signatory. By the principle, upon invitation or permission of the contracting parties, a third party who did not participate or did not ratify on time, may be bound by the treaty. Acceptance Informal way by which a State shows agreement with the treaty. Adherence Acceptance of some of the principles embodied in the treaty. 4. Exchange Of Instruments Of Ratification Signifies the effectivity of the treaty, unless a different date has been agreed upon. If there ratification is dispensed with and no effectivity clause is provided, the treaty is deemed effective upon its signature. 5. Registration & Publication Every treaty and international agreement entered into by any member of the UN should be registered with the Secretariat and published by it. [Art. 102, UN Charter]. Nonetheless, failure to register would not affect the validity of the treaty. But unregistered treaty cannot be invoked by any party thereto before any organ of the UN. Terms Used In International Agreements Convention An agreement usually relating to some specific subject rather than to matters of general character as in the case of a treaty. Protocol (or Process Verbal) Less formal than a convention. It embodies the form of an agreement already made or to be made both in phrasing and in arrangement. Protocols are sometimes formally ratified by the treaty-making power, and sometimes are simply the singed minutes of a conference. Declaration Usually in the form of reciprocal agreements relating to the rights and privileges of the nationals of the states. The term declaration is also applied to the formal statement of the principles in accord with which states propose to act, or to the formal statement of the grounds for an action. Cartels Agreements concluded between belligerents in regard to intercourse in time of war and includes such subjects as the exchange of prisoners, transmission of mail, free passage of couriers, etc. Sponsions (or Agrements sub spe rati) Agreements tentatively made between representatives of states not properly commissioned, or agreements made by representatives in excess of authority. Treaties of Guaranty Agreements through which one or more powers engage to maintain, to aid in maintaining or not to interfere with, given conditions or rights. Example: Treaty
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guaranteeing perpetual neutrality of Switzerland and inviolability of its territory on Nov. 20, 1815. Compromis d Arbitrage Denotes an agreement to refer to arbitration some matter in dispute. Pact Used at times to mean treaty, like the Pact of Paris of 1892, renouncing war as an instrument of national policy. Concordat Agreement entered into by the Pope with the heads of foreign states. Exchange of notes (diplomatic notes) Consisting in the sending and receiving of notes similar to the letters of offer and acceptance in business, until an understanding has been arrived at. Pactum de contrahendo Preliminary agreement on certain points to be included in a treaty. Memoire or memorandum A diplomatic note, either signed or merely initiated by the negotiators, containing a summary exposition of the principal facts about a certain matter. Punctationes Mere negotiations on the items of a future treaty, without the parties entering into an obligation to conclude that treaty. Reversales A declaration that an error in draftsmanship or in etiquette shall not be considered as a precedent. Lettres reversales A declaration that an alteration in ceremonial practice is effected without prejudice to the general rule. Recez A term applied to the act of a diet, or congress in reducing to writing the result of its deliberations on a certain subject, before final adjournment. Separate articles Clauses added to a treaty after it has been formally singed and ratified. They are contained in a separate document, duly authenticated but they are construed in connection with the treaty to which they refer and to which they form part. Travaux Preparatoires (Preparatory to work) - often used in clarifying the intentions of a treaty or other instrument. Requisites For Valid Invocation of Rebus Sic Stantibus The change must be so SUBSTANTIAL that the foundation of the treaty must have altogether disappeared; The change must have been UNFORESEEN or UNFORESEABLE at the time of the perfection of the treaty; The change must not have been CAUSED by the party invoking the doctrine; The doctrine must be invoked within a REASONABLE TIME; The duration of the treaty must be INDEFINITE; and It cannot operate RETROACTIVELY. It must not adversely affect provisions already been complied with. Rules In Interpretation Of Treaties When there is doubt as to the interpretation of the words of a treaty: a. The words are to be interpreted in their usual sense, unless this involves an absurdity or is incompatible with the general provisions of the treaty; b. Words with more than one meaning are interpreted in the more general sense, rather than their technical sense, unless clearly used in their technical sense; and c. Words are to be interpreted as understood at the time of the negotiation of the treaty and favorably to the party assuming an obligation. When there is doubt as to the interpretation of the PROVISIONS of a treaty: a. That which is specifically stated prevails against the more general; b. A negative outweighs a corresponding positive; c. Provisions operating unequally may be strictly construed by the party suffering the greater burden; and d. Single provision should be interpreted with reference to the whole treaty. In case of conflict between different treaties: a. If between treaties to which the same are parties, the later is binding; and b. If between earlier and later treaties to which the same state are not parties, the earlier treaty is binding Termination Of Treaties Expiration of term Accomplishment of the purpose Impossibility of performance Loss of the subject matter Desistance of the parties, through express mutual consent. Also known as desuetude, i.e. the exercise of the right of denunciation or withdrawal, when allowed. Novation Extinction of one of the parties if treaty is bipartite. Vital change of circumstances under the doctrine of rebus sic stantibus. Outbreak of war (Except when the treaty was intended to regulate the conduct of the signatories during the hostilities, or to cede territory, or to fix boundaries. Voidance of treaty due to defects in conclusion or violation of its provision by one of the parties or incompatibility with international law or the UN Charter.
Fundamental Principles On Treaties Pacta Sunt Servanda A principle in international law which holds that treaty obligations should be discharged in good faith. Rebus Sic Stantibus A principle according to which a treaty ceases to be binding when an essential change in the circumstances in which it was concluded has occurred. The doctrine does not operate automatically. There is necessity for a formal act of rejection, usually by the head of state, with statement of the reason why compliance in no longer required. [Santos III v. Northwest, 210 SCRA 256]
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Chapter 15 NATIONALITY & STATELESSNESS Nationality vs. Citizenship Nationality Membership in a political community with it concomitant rights and duties. It is a tie that binds an individual to his state, from which he can claim protection and whose laws he is obliged to obey. Citizenship It has more exclusive in scope. It applies only to certain members of the state accorded with more privileges that the rest. Determination Of A Persons Nationality a. Birth b. Naturalization c. Repatriation d. Subjugation e. Cession a. Birth Jus soli Acquisition of nationality of the state where one is born; Jus sanguinis by blood, i.e. acquiring nationality of ones parent or parents. b. Naturalization Direct: by individual proceedings, usually judicial, under general naturalization laws; by special act of the legislature, often in favor of distinguished foreigners who have rendered some notable service to the local state; by collective change of nationality (naturalization en masse) as result of cession or subjugation; and by adoption of orphan minors as national of the state where the are born. Derivative: on the wife of the naturalized husband; on the minor children of the minor children of the naturalized parent; and on the alien woman upon marriage to a national Note: Derivative naturalization does not always follow as a matter of course. It is usually subject to stringent restrictions and conditions, i.e., wife must herself qualified if she herself applies for naturalization. c. Repatriation The recovery of nationality by individuals who are natural-born citizens of a State but who had lost their nationality. R.A. 8171 governs repatriation of Filipino women who have lost Filipino citizenship by reason of marriage to aliens and repatriation of former natural-born Filipinos who lost Filipino citizenship. Multiple Nationalization An individual may be possessed with more than one nationality due to the concurrent application as to him of the municipal laws of states claiming him as their national. Such may arise where both jus soli and jus sanguinis operate simultaneously upon him. Doctrine Of Indelible Allegiance An individual may be compelled to retain his original nationality notwithstanding that he has already renounced or forfeited it under the laws of a second state whose nationality he has acquired. Examples: Sec. 2, Art. III, Phil. Constitution where a Filipino woman continues her citizenship even if married to a foreigner. An American citizen who has accepted a commission in the French Navy was convicted of violating the Neutrality Act of 1874 since he had no power to renounce his allegiance without the consent of the US and therefore subject still to its laws. [Williams Case, US Cir. Ct. Dist., 11799; Fenwick Cases, 152] Loss of Nationality Voluntary: Renunciation, express or implied; Request for Release [precedes the acquisition of a new nationality] Involuntary: Forfeiture like enlistment in a foreign army or long continued residence in a foreign state; Substitution like change of sovereignty or conferment of derivative naturalization Hague Convention on the Conflict of Nationality Laws [1930] Each state to determine under its law who are its nationals. [Art. 1] Any question as to whether a person possesses the nationality of a particular state to be determined in accordance with the law of the state. [Art. 2] A person with two or more nationalities may be regarded as its national by each of the states whose nationality he possesses. [Art. 3] A state may not give diplomatic protection to one of its nationals against a state whose nationality such person also possesses. [Art. 4, see Nottenbohm case] Principle of Effective Nationality Within a third state, a person having more than one nationality shall be treated as if he had only one. [Art. 5] Without prejudice to the application of its law in matters of personal status and of any convention in force, a third state shall, of the nationalities which any of such person possesses, recognize exclusively in its territory either: a. The nationality of the country in which he is HABITUALLY AND PRINCIPALLY A RESIDENT; or b. The nationality of the country with which in the circumstances he appears to be in fact MOST CLOSELY CONNECTED. Note: The immediately preceding determination is what is known as the PRINCIPLE OF EFFECTIVE OR ACTIVE NATIONALITY. Summary On Determination Of Nationality Where a person possesses both Philippine and American nationality, as for instance, his claim for Philippine nationality shall be decided on the basis of Philippine law alone, to the exclusion of all other laws, vice versa.
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However, if the issue of his real nationality is raised in a third state, as for instance Japan, the laws of Japan will be inapplicable as he is not claiming Japanese nationality. In the preceding situation, Japan shall apply the principle of effective or active nationality where he will be considered as national exclusively of the state with which he is MOST CLOSELY CONNECTED. U.S. (For Alexander Tellech) v. Austria & Hungary, Tripartite Claims Commission, 1928 Issue: Whether or not the Austrian Government may subject Alexander Tellech, born of Aurtrian parents in the US, to compulsory military service? Held: The action taken by the Austrian civil authorities in the ercise of their police power and by the Austro-Hungarian military authorities, of which complain is made, was taken in Austria, where claimant is voluntarily residing, against claimant as an Austrian citizen. Citizenship is determined by rules prescribed by municipal law. Under the law of Austria, to which claimant had voluntarily subjected himself, he was an Austrian citizen. The Austrian-Hungarian authorities were well within their rights in dealing with him as such. Possessing as he did dual nationality, he voluntarily took the risk incident to residing in Austrian territory and subjecting himself to the duties and obligations of an Austrian citizen arising under the municipal laws of Austria. The Canevero Case Tribunal of the Permanent Court of Arbitration, 1912 Issue: May Italy file a diplomatic claim against Peru on behalf of Rafael Canevaro, who is a national of both states under their respective municipal laws? Held: According to Peruvian legislation Rafael Canevaro is a Peruvian by birth because born on Peruvian territory. On the other hand, according to Italian legislation, he is of Italian nationality because he was born of an Italian father. As a matter of fact, Canevaro had on several occasions acted as a Peruvian citizen, both by running as a candidate for the Senate, where none are admitted except Peruvian citizens and where he succeeded in defending his election, and particularly by accepting the office of Consul-General for the Netherlands, after having secured authorization of both the Peruvian Government and Congress. Under these circumstances, whatever Canevaros status as a national may be in Italy, the Government of Peru has a right to consider him a Peruvian citizen and to deny his status as an Italian claimant. The Nottebohm Case, I.C.J. Reports, 1955, p. 4 Facts: Nottebom, a German by birth, had been a resident of Guatemala for 34 yrs when he applied for and acquired naturalization in Liechtenstein one month before the outbreak of WWII. Many members of his family and his business connections were in Germany. In 1943, Guatemala, which had declared war on Germany, confiscated all his properties on the ground that he was an enemy national. Liechtenstein thereupon filed suit against Guatemala on his behalf as its naturalized citize. Issue: Was Nottebohms naturalization binding on Guatemala? Held: The courts of third states, when they have before them an individual whom two othe states hold to be their national, seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the REAL AND EFFECTIVE NATIONALITY. Nottebohms actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in that country at the time of his application for naturalization. Not intention of settling there was shown at that time or realized in the ensuing weeks, months or years on the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there. Naturalization was asked not so much for the purpose of obtaining a legal recognition of Nottebohms membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent state that of a Naturalization was asked not so much for the purpose of obtaining a legal recognition of Nottebohms membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent state that of a neutral state, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations other than fiscal obligations and exercising the rights pertaining to the status acquired. Gutemala is under no obligation to recognize a nationality granted is such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis--vis Guatemala and its claim must, for this reason, be held to be inadmissible. Statelessness The status of having no nationality, as a consequence of being born without any nationality, or as a result of deprivation or loss of nationality. [Labo v. Comelec, 176 SCRA 1] Convention Relating to the Status of Stateless Persons I. Treatment of stateless persons vis--vis the nationals in the state they are staying THEY MUS BE GIVEN TREATMENT AT LEAST AS FAVORABLE AS THAT ACCORDED TO THE NATIONAL OF SUCH STATE WITH RESPECT TO: Freedom to practice their religion and freedom as regards the religious education of their children; Access to the courts of law; Rationing of products in short supply; Elementary education; Public relief and assistance; and Labor legislation and social security.
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II. Treatment of stateless persons lawfully staing in the territory of a state vis--vis aliens found or staying there. THEY MUST GIVEN TREATMENT AS FAVORABLE AS POSSIBLE AND, IN ANY EVENT, NOT LESS FAVORABLE THAN THAT ACCORDED TO ALIENS GENERALLY IN THE SAME CIRCUMSTANCES, relative to: Acquisition of movable and immovable property; Right of association in non-political and non-profit-making associations and trade unions; Gainful employment and practice of liberal profession; Housing and public education other than elementary education; and Freedom of movement. Refugees Persons who are outside the country of his nationality, or if he has no nationality, the country of his former habitual residence either because: He has or had well-founded fear of prosecution by reason of his race, religion, nationality or political opinion; Who is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality; or if he has no nationality, to return to the country of his former habitual residence. Essential Elements For One To Be Considered A Refugee He is outside the country of his nationality, or if stateless, outside the country of his habitual residence; He lacks national protection; and He fears persecution of reason of his race, religion, nationality or political opinion. Refugee Convention of 1951 A refugee is treated as a stateless individual, which he is, either de jure or de facto. The convention does not deal with admission of refugee but with nonrefoulement. Non-refoulement (in relation to refugees) No contracting state shall expel or return a refugee in any manner whatsoever, to the frontiers of territories where his life or freedom is threatened. The state is under obligation to grant temporary asylum to refugees. Chapter 16 Treatment of Aliens Right to Exclude Aliens Every state has the right, as inherent in sovereignty and essential to its own security and existence, to determine in what cases and under what conditions foreigners may be admitted to its territory. Includes the power to regulate the entry and stay of aliens and the right to expel them through deportation or reconduction. Aliens must accept the institutions of the state as he finds them. Aliens may be deprived of certain rights, e.g., political rights, acquisition of lands, etc. Or, they may granted certain rights and privileges based on: reciprocity MFN treatment National treatment But once it decides to accept aliens, its competence as territorial sovereign is limited by the requirement that they be treated justly, in accordance with the law of nations. Expulsion or Deportation Predicated on the ground that the stay of the alien constitutes a menace to the security of the state; his entry was illegal; permission to say has expired; or he has violated any limitation or condition prescribed for his admission and continued stay. Reconduction The forcible conveying of aliens back to their home state. Destitute aliens, vagabonds, alines without documents, alien criminals, and the like, may be arrested and reconducted to the frontier without any formalities. The home state of such aliens has the obligation to receive them Doctrine of State Responsibility A state is under obligation to make reparations to another state for its failure to fulfill its primary obligation to afford, in accordance with international law, the proper protection due to the alien national for: Acts or omissions constituting an international delinquency; Acts or omissions directly or indirectly imputable to the state.
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