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Public International Law Atty. Basilgo

IN GENERAL

INTERNTIONAL

Branch of Public law which regulates the

LAW

relations of states and of other entities which have been granted an international personality

PUBLIC

The Law of the Nations

INTERNATIONAL Deals with the conduct of States and LAW international organizations, their relations with each other and, in certain circumstances, their relations with persons, natural or juridical .

PRIVATE Conflict of Laws

INTERNATIONAL Selects between conflicting municipal

LAW systems of law to regulate th e relationship between persons. It focuses on the conduct, not of States or international organizations, but rather on the conduct of individuals, corporations and other private entities

Schools of Thought on PIL

Natural

Law

Positivist

There is a natural and 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.

or compact which c an be discovered and recognized by every individual through the use of

Based on consent of states. It is largely man - made, may vary from time to time and form place to place.

- made, may vary from time to time and form place to place. Tacuboy   Behavior

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Behavior of states should be regarded as the basis of international law

Eclectic or

Premised both on the natural moral law and on common consent Binding partly because it is good and right and partly because states have agreed to be bound by it.

Grotian

Command

Law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed; national law is not a law because it does not come from a command of a sovereign

Theory

Consensual

International law derives its binding force from the consent of states Treaties and custom are expressions of consent

Theory

Ø Hard Law – binding international legal norms or those which have coercive character

Ø Soft Law – international instruments with purpose of promotion of norms which are believed to be good and therefore should have general or universal application (not recognized as treaties nor as legal norms)

Ø International Comity – rules of politeness, convenience and goodwill observed by States in their mutual intercourse without being legally bound by them.

Ø International Ethics – stresses considerations of justice and morality

Ø International Diplomacy – based on expediency and self - interest

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Public International Law Atty. Basilgo

Ø International Administrative law body of rules formulated by states, in international conventions, for the purpose of regulating their relations and activities in connections with non - political matters as international communication, patents and copyrights, promotion of health, educations and crime prevention.

 

“Towards all”

Obligations Erga Omnes

 

a. obligation under general international law that a State owes in any given case to international community

b. obligation under multilateral treaty that State, party to a treaty, owes in any given case to all other State parties to same treaty

 

Peremptory Norms” norm accepted and recognized by the

international community of States as a whole for which no derogation is permitted

Jus Cogens

-

can be modified only by a subsequent norm of general international law having same character.

a. Maxims of International law which protect foundations of law, peace and humanity

 

b. Rules of peaceful cooperation in the sphere of international law which protects fundamental common interests

c.

Protection of humanity , especially of human rights.

Ex Aequo

Et Bono

“From equity and conscience” court decided the case not on legal considerations but solely on what is fai r and reasonable.

considerations but solely on what is fai r and reasonable. Tacuboy 2 Ø International as a

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Ø International as a true law

Þ There are laws which have become valid rules of conduct by mere agreement or by acceptance of members of the community and are observed because of their intrinsic merit.

Þ Sanctions or Factors that influence observance of IL:

a. belief in the inherent wisdom of the law

b. habits of obedience

c. fear of reprisals or punishment

d. respect for world opinion

e. united nations

Þ Functions

¨ To promote international peace and security

¨ To foster friendly relations among nations and to discourage the use of force in solution of differences among them

¨ To provide for the orderly regulation of the conduct of states in their mutual dealings and

¨ To insure international cooperation in the pursuit of certain common purposes of an economic, social, cultural or humanitarian character.

Ø International Law Commission

Þ Body created by the General Assembly in 1947 for the promotion of the progressive development of international law and its

codification.

Public International Law Atty. Basilgo

Þ 25 members of recognized competence in IL, elected by general assembly for a term of 3 years and eligible for re- election.

International Law

National/ Municipal Law

Law of coordination (by consent)

Law of subordination (issued by political superior)

Regulates relations of states and other international persons

Regulates relations of individuals among themselves or with their own states

Derived principally from treaties, international customs and general principles of law

Consists mainly of statutory enactments executive orders and judicial pronouncements

Resolved through state- to - state transactions

Redressed through local administrative and judicial processes

Collective responsibility because it attaches directly to the state and not its nationals

Individual responsibility

Theoretical Approaches to Relationship between Int’l and National Law

Monism

No substantial distinction between international and municipal law.

Dualism

International and national law are independent of each other and both are regarded as mutually exclusive and independent.

and both are regarded as mutually exclusive and independent. Tacuboy 3 Ø Manner of Adopting International

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Ø Manner of Adopting International Law as Part of the State

Þ Doctrine of Incorporation

- A State is bound by generally accepted principl es of international law, the same being considered as part of its own laws

Þ Doctrine of Transformation

- Requires the enactment by the legislative body of international law principles as sought to be part of municipal law.

- Transformation Doctrines:

a.

Hard on ly legislation can transform international law into domestic law

b.

Soft – either a judicial or legislative act of a State can transform international law into domestic law

Ø Theories of Adaptation applied by the Philippines

Þ Doctrine of Incorporation – PH adopts GAPIL as part of law of the land (Const, Art II, Sec 2)

Þ Transformation – applied through the treaty- making power of the President, which shall become effective upon concurrence of 2/3 of all members of Senate (Const, Art VII, Sec 21)

Þ Declaration in constitution is not necessary because mere fact of membership in family of nations imposes upon us the obligation to observe its rules, w/n we expressly affirm our intention to do so.

Þ Declaration is an assurance to the rest of the world of our willingness to abide by the GAPIL

Public International Law Atty. Basilgo

Ø In case of conflict between IL and Municipal/National Law

Þ International tribunals viewpoint: decision should always incline in favor of IL

Þ Municipal tribunals viewpoint: decision is determined by considerations of self- interest. It ML will favor state, it is applied, otherwise IL upheld.

Ø International Community

Þ The body of juridical entities which are governed by IL. Traditionally called the family of nations.

Þ It is not solely composed of states, there are other entities which are now considered subjects of IL

Ø Subjects of the Law - an entity that has rights and

responsibilities under international law and which has the capacity to maintain its rights by bringing international claims.

1. States, dependent and independent

- Independent State has full freedom in the direction of its affairs, both domestic and foreign

a. Simple – where the direction of domestic and foreign affairs is placed in a central authority.

b. Composite – consists of 2 or more states, each with its own separate government but bound under 1 central authority exercising greater or less extent control over their external relations, forming a separate international person.

external relations, forming a separate international person. Tacuboy 4 ¨ Real Union – created when 2

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¨ Real Union – created when 2 or more states are merged under a central authority through which they act in direction of their external affairs. (Norway & Sweden, Austria & Hungary)

¨ Federal Union – combination of 2 or more states, upon merger, cease to be states, resu lting in the creation of a new state with full international personality (US)

¨ Confederation – organization of states which retain their internal sovereignty and their external sovereignty while delegating to the collective body of power to represent them as a whole for certain limited purposes. Separation international relations are maintained.

¨ Personal Union – 2 or more states are brought together under same monarch who nevertheless does not constitute 1 international person for purpose of representing all of them.

¨ Incorporate Union – union of 1 or more states under a central authority empower to direct both internal and external affairs and possess of a separate international personality (UK)

- Classification:

a. Sovereign States – full membership in the international community

b. Neutralized States – upon which status of permanent neutrality was formally imposed

c. D ependent States – those that have practically complete control of their domestic affairs while they don’t have complete freedom in direction of external affairs.

Public International Law Atty. Basilgo

ü Protectorate – always retains a measure of control over its external affairs. Established at the request of the weaker state for the protection of a strong power

ü Suzerainty – may or may not have control over external affairs. Result of a concession from a state to a former colony which is allowed to become independent subject to retention of certain external affairs.

d.

Confederation and Union – states which are associated for certain specific purposes

2.

United Nations

- Enjoy privileges and immunities such as non - suability, inviolability of its premises and archives and exemption from taxation.

- Right o f legislation and diplomatic agents possess privileges accorded regular envoys

- Can assert diplomatic claims for damages on behalf of its officials

- Can enter into treaties through Gen. Assembly, Security Council and Economic and Social Council

- Can wage war through exercise of power to take enforcement of action in case of actual breach of or threat to the peace of the world.

3.

Vatican City

- Exercises certain rights generally reserved to states such as the right of legation and right to enter into treaties and a considerable number of states have recognized it as a member of international community.

have recognized it as a member of international community. Tacuboy 4. Belligerent communities - A group

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4. Belligerent communities

- A group of rebels under an organized civil government who have taken up arms against the legitimate government.

- When recognized, considered as a separate state for purposes of the conflict and is entitled to all the rights and subjected to all obligations of a full - fledged belligerent under the laws of war.

5. Individuals

6. International organizations or administrative bodies

- When they are autonomous — not subject to control of any state and purposes are mainly non - political

- Trading corporations – vested by sovereign with certain governmental powers over territory placed under their jurisdiction.

Ø Object of International Law – a pers on or thing indirectly vested with rights and obligations in the international order. Persons or thing in respect of which rights are held and obligations assumed by the subject.

SOJ v Lantion

DOCTRINE OF INCORPORATION

- Rules of international law for part of the law of the land no further legislative action is needed to make such rules applicable in the domestic sphere. This doctrine is applied whenever local courts are confronted with situations in which there is conflic t between a rule of international law and the provisions of the constitution or statute of the local state.

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Public International Law Atty. Basilgo

- Efforts should be exerted to harmonize them. In a situation, however, where the conflict is irreconcilable, jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances.

- In states where the constitution is the highest law of the land, such as in the RP, both statutes and treaties may be invalidated if they are in conflict with the constitution. (Here, the SC found that the RP - Extradition treaty was not really in conflict with our Consti since it was silent on the existence of the rights of a prospective extraditee at the evaluation stage of the proceedings)

SOURCES OF INTERNATIONAL LAW

Art 38, ICJ Statute

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 evidence 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 teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of

law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree

thereto.

a case ex aequo et bono , if the parties agree thereto. Tacuboy 6 Art 53,

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Art 53, 1969 Vienna Convention on Treaties

TREATIES CONFLICTING WITH A PEREMPTORY NORM OF GENERAL INTERNATIONAL LAW ("JUS COGENS") A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Sources of International Law

Ø Primary Sources

Þ International treaties and conventions

Þ International custom

Þ General Principles of law

Ø Secondary Source

Þ Judicial decisions

Þ Teachings of the most highly qualified publicists of the various nations

Treaty and Custom

Ø Primary sources of international law.

Ø Treaty – legal instrument which constitutes a material

source of norms , treaty- making is a norm- creating process. “Conventional international law”

Ø Formation of custom is a norm – creating method considered a formal source of customary norms. “ Customary international law”

Public International Law Atty. Basilgo

International Customary Law

Ø Consists of rules of law derived from the consistent

conduct of States acting out of the belief that the law required them to act that way.

Ø Elements

1. Duration

2. Uniformity, Consistency of Practice

3. Generality of Practice

- Uniformity and consistency

4. State Practice

- There must be evidence of substantial uniformity of practice by a substantial number of States

5. Opinio juris sive necessitates

- “Opinion of law or necessity”

- The belief that this practice is rendered obligatory by the existence of a rule requiring it

- Regional Custom

¨ Practice among states within a particular area of the world which can be sufficiently well established and accepted as law that is binding among the states of that region but not elsewhere

- Special or Local Custom

¨ A long continued practice between 2 States accep ted by them as regulating their relations that form the basis of mutual rights and obligations

that form the basis of mutual rights and obligations Tacuboy - Instant Custom ¨ A binding

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- Instant Custom

¨ A binding rule established by the spontaneous activity of a great number of states and need not be observed for a considerable period

Ø Persisten t Objector Rule - When a State persistently objects to a rule of customary international law during the formative years of the rule, it will not be bound by it.

Cases on Customary Law

Kuroda v Jalandoni (GR No L - 2662) RP Consti. adopts the generally accepted principles of international law as part of the law of the nation. EO68 and prescribing rules and regulations governing the trial of accused war criminals is valid and constitutional since Art. 2 of our Constitution provides in its section 3, that The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation. So even without local legislation, the Constitution has provided for the application of international law. The rules & regulations of the Hague, Geneva Conventions form part of are wholly based on the generally accepted principles of international law. Even if RP is not a signatory to the Hague Conv. and signe d the Geneva Conv. only in 1947, it can’t be denied that the rules and regulations of the Hague and Geneva conv. form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the 2 belligerent nations, US and Japan, who were signatories to the 2 Conventions. Such rules and principles, therefore, form part of the law of our nation even if RP 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.

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Public International Law Atty. Basilgo

Yamashita v Styer (GR No L - 129) Th e Court held that his petition for habeas corpus is untenable since he seeks no discharge from confinement but merely his restoration to his former Prisoner of War status. Likewise, his petition for prohibition can neither prosper since the MC is not made party respondent in this case. 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 t he 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." Under the l aws of war, a military commander has an implied power to appoint and convene a military commission. This is upon the theory that since the power to create a military commission is an aspect of waging war, military commanders have that power unless expressl y withdrawn from them. By the Articles of War, and especially article 15, Congress of the United States has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against t he law of war in appropriate cases. There is nothing in the provisions of the Geneva Convention of July 27, 1929, showing that previous to the trial of a war criminal a notice to the "protecting power" of the vanquished belligerent is a prerequisite to the jurisdiction of military commissions appointed by the victorious belligerent.

Kookooritchkin v Solicitor General (GR No. L - 1812) Attachment of the certificate of arrival is not essential to the validity of a declaration of intention to become a Filipino citizen, because section 5 of Commonwealth Act No. 473 merely uses the words “has been issued.” That a certificate of arrival has been issued is a fact that should be accepted upon the petitioner’s undisputed statement in his declaration of July, 1940, th at the certificate had actually been attached to the declaration, because it cannot be supposed that the receiving official would have accepted the declaration without the certificate mentioned therein as attached thereto. Petitioner’s declaration is valid under section 5 of the Naturalization Law, failure to reconstitute the certificate of arrival

Law, failure to reconstitute the certificate of arrival Tacuboy 8 notwithstanding. What an unreconstituted document

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notwithstanding. What an unreconstituted document intended to prove may be shown by other competent evidence. The lower court did not err in pronouncing appellee stateless. Appellee’s testimony, besides being uncontradicted, is supported by the well - known fact that the ruthlessness of modern dictatorships has scattered throughout the world a large number of stateless refugees or displaced persons, without country and without flag. The tyrannical intolerance of said dictatorships toward all opposition induced them to resort to beastly oppression, con - centration camps and blood purges, and it is only natural that the not - so - fortunate ones who were able to escape to foreign countries should feel the loss of all bonds of attachment to the hells which were formerly their fatherland’s. Petitioner belongs to that group of stateless refugees. Knowing, as all cultured persons all over the world ought to know, the history, n ature and character of the Soviet dictatorship, presently the greatest menace to humanity and civilization, it would be technically fastidious to require further evidence of petitioner’s claim that he is stateless than his testimony that he owes no allegia nce to the Russian Communist government and, because he has been at war with it, he fled from Russia to permanently reside in the Philippines.

Case Concerning the Military and Parliamentary Activities in and Against Nicaragua

Nicaragua v US (ICJ Reports 1986) The US violated the customary international law obligation on the use of force when it laid mines in Nicaraguan ports, when it assisted the contras by “organizing/encouraging the organization of irregular forces & armed bands…for incursion into the t erritory of another state” & participated “in acts of civil strife in another state.” The US violated the sovereignty of another state when it directed aircrafts to fly over Nicaraguan territory & when it laid mines in the internal waters of Nicaragua and its territorial sea. Basic concept of sovereignty in intl. law is found in Art. 2 (1) of the UN Charter. The court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica & Honduras in determining whether an armed attack was undertaken by Nicaragua against the 3 countries - which in turn would necessitate self - defense. None of the countries who were allegedly

Public International Law Atty. Basilgo

subject to an armed attack by Nicaragua declared themselves as a victim

of an armed attack or requested assistance from the US.

Asylum Case

Colombia v Peru (ICJ Report 1950)

In the Torre’s case, Colombia has asserted, as the State granting asylum,

that it is competent to qualify the nature of the offence in a unilateral and

definitive manner that is binding on Peru. The court had to decide if such

a decision was binding on Peru either because of treaty law (Havana

Convention of 1928 and the Montevideo Convention of 1933), other principles of international law or by way of regional or local custom. The court held that there was no expr essed or implied right of unilateral and definitive qualification of the State that grants asylum under the Havana Convention or relevant principles of international law. The Montevideo Convention of 1933, which accepts the right of unilateral qualificatio n, and on which Colombia relied to justify its unilateral qualification, was not ratified by Peru. The court concluded that Columbia, as the State granting asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru.

In this case the Peruvian government had not asked that Torre leave Peru.

On the contrary, it contested the legality of asylum granted to him and refused to grant safe conduct. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents have requested and been granted safe passage for asylum seekers, before the territorial State could request for his departure. Once more, the court held that these practices were a result of a need for expediency and other practice considerations over an existence of a belief that the act amounts to a legal obligation Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent and disorderly action of irresponsible sections of the population.” (for example during a mob attack where the

territorial State is unable to protect the offender). Torre was not in such

a situation at the time when he sought refuge in the Colombian Embassy

at Lima. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2(2) of the Havana Convention.

Nuclear Test Cases (ICJ Reports)

of the Havana Convention. Nuclear Test Cases (ICJ Reports) Tacuboy 9 New Zealand v Franc (1974)

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New Zealand v Franc (1974) As a court of law, the ICJ is called upon to resolve existing disputes between states. These disputes must continue to exist at the time when the court makes its decision. In the present case, the dispute having disappeared, the claim no longer has any obj ect and there is nothing on which to give judgment. Once the Court has found that a State has entered into a commitment concerning its future conduct, it is not the Court’s function to contemplate that it will not comply with it.

Australia v France (197 4) The Court has indicated interim measures on the basis of Article 41 of its Statute and taking into account the following conditions inter alia:

- Material submitted to Court leads it to the conclusion that the provisons invoked by Applicant with regard t o Court’s jurisdiction appear prima facie, to afford basis on which jurisdiction might be founded;

- Cannot be assumed a priori that claims of Australian Government fall completely outside of Court’s jurisdiction;

- The information submitted to the Court does not exclude the possibility that damage to Australia might be shown to be caused by deposit on Australian territory of radio - active fall - out resulting from tests and to be irreparable. Court made an Order indicating the following provisional measures of pr otection:

- Governments of Australia and France should each of them ensure that no action of any kind is taken which might aggravate the dispute or prejudice rights of the other Party in respect of carrying out whatever decision the Court may render; and

- French Government should avoid nuclear tests causing the deposit of radio - active fall out on Australian territory.

New Zealand v France (1995) As a court of law, the ICJ is called upon to resolve existing disputes between states. These disputes must cont inue to exist at the time when the court makes its decision. In the present case, the dispute having disappeared, the claim no longer has any object and there is nothing on which to give judgment.

People

Public International Law Atty. Basilgo

Once the Court has found that a State has entered into a c ommitment concerning its future conduct, it is not the Court’s function to contemplate that it will not comply with it.

Cases on General Principles of Law

Salonga v Executive Secretary (GR No. 176051)

- The VFA is constitutional for being an implementing agreement of the RP - US Military Defense Treaty, which has been ratified & concurred by both US & Philippine Senates. Also, the VFA provisions regarding the detention & custody of foreign military forces a re not in violation of the Constitutional mandate about the Court’s exclusive power of promulgating rules of procedure. On the other hand, the Romulo - Kenney agreement is void for not being in accord with the VFA

- Article XVIII, Sec. 25 of the Constitution is designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved, the idea being to prevent a recurre nce of what happened in the past.

- The provision was adopted in the 1987 Constitution. It is designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State .

- The framers of the Constitution were aware that the application of international law in domestic courts varies from country to country.

- DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas other s do not. It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the other contracting State to convert their system to achieve alignment and parity with ours. It was simply required that the treaty be recognized as a treaty by the other contracting State. With that, it becomes for both parties a binding international obligation and the

for both parties a binding international obligation and the Tacuboy enforcement of that obligation is left

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enforcement of that obligation is left to the normal recourse and processes under international law.

ACTORS IN IN TERNATIONAL LAW

States

Ø A group of people permanently living in a definite territory, under an independent government organized for political ends and capable of entering into legal relations with other states

Ø Facts of Statehood

P – permanent population /p eople T – defined territory

G

government

C

– capacity to enter into relations with other states

S

– sovereignty or independence

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Essential Elements of State

- Inhabitants of a state.

- They are regarded as a single unit and must come from both sexes so as to be able to perpetuate themselves.

- Must be big enough to sustain itself and maintain its security and small enough to be easily governed

Territory

Government

Inde pendence

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- Fixed portion of the surface of the earth on which the population of state resides.

- Fixed so that jurisdiction of state may be ascertained.

- Size does not matter as long as the state is able to comply with international obligations.

- Should be big enough to provide for needs of inhabitants

- The agency through which the will of the state is formulated, expressed and realized.

- The instrumentality that represents the state in its dealings with other international persons.

- State can assert rights and be held responsible through government

- Sovereignty and independence are used interchangeable

- Independence is only the external manifestation of sovereignty which embraces power over internal matters.

- Power of a state to administer its external affairs without direction or interference from another state.

Creation

Ø State may be created in any of the ff:

- By peaceful acquisition of independence

- By revolution

- By unification of several states

- By succession

- By agreement

- By attainment of civilization

By succession - By agreement - By attainment of civilization Tacuboy 11 Fundamental Rights Ø Right

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Fundamental Rights

Ø Right of existence and self - defense

Ø Right of independence

Ø Right of equality

Ø Right of property and jurisdiction

Ø Right of legation or diplomatic intercourse

Principle of State Continuity

- Legal existence of a state continues notwithstanding changes in the size of its populati on or territory or in the form or leadership of its government as long as the four essential elements of statehood are retained.

- State is immortal as long as it has PTGS, if any of the elements disappear, the self is extinguished or dies.

How State is Extinguished

- Through natural causes (epidemic or disaster)

- Artificial means

o

Anarchy

o

Mass emigration of population

o

Annexation

o

Merger or unification

o

Dismemberment

o

Dissolution of a federal union

o

Partial loss of independence

Principle of State Succession

- The substitution of one state by another, latter taking over the rights and some of the obligations of the former.

- Universal: state is completely annexed by another or dismembered or dissolved. Merger of 1 or more states.

Public International Law Atty. Basilgo

- Partial: portion of territory of a state is ceded or when state losses part of its sovereignty by joining a confederation or becoming protectorate or suzerainty.

Effects of State Succession

- Allegiance of inhabitants of predecessor state transferred to successor

- Political laws of predecessor state are automatically abrogated but n on - political laws are continued unless expressly repealed or contrary to the institutions of the new sovereign.

- Public property of the predecessor state is acquired by the successor state but not the tort liability.

- Treaties entered into by the predecessor state are not considered binding on successor except those dealing with local rights and duties

Recognition

Ø An act by which a state acknowledges the existence of another state, government or belligerent commu nity and indicates its willingness to deal with the entity as such under rules of IL.

Ø Declaratory and discretionary or political – merely affirms an existing fact

Ø Constitutive and compulsory – acts of recognition that constitutes the recognized entity into an international person.

Ø Power of Recognition

- President of the Philippines by virtue of his authority to send and receive diplomatic representatives, to

authority to send and receive diplomatic representatives, to Tacuboy enter into treaties, to establish blockades and

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enter into treaties, to establish blockades and to act as the foreign policy spokesman of the nation.

Ø Forms

- Express – verbal or writing

- Implied – the recognizing and recognized states enter into a treaty regulating their relations in general or when they exchange diplomatic representatives.

Recognition

De Jure

De Facto

Relatively permanent

Provisional (duration of armed struggle)

Vests title to properties of government abroad

Does not vest title to properties of government abroad

Brings about full diplomatic relations

Limited to certain juridical relations

Doctrines

Wilson/Tobar

Precludes recognition of government established by revolution, civil war, coup d’état or other forms of internal violence until the freely elected representatives of the people have organized a constitutional government

Doctrine

Kelsen Doctrine

State violates IL and infringes upon rights of other states if it recognizes as a state a community which does not fulfill the requirements of IL

Betancourt

Antipathy for non - democratic rule, which denied diplomatic recognition to any

Doctrine

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Public International Law Atty. Basilgo

 

regime, right or left, which came to power by military force

 

delimitation with physical objects such as concrete posts, stone cairns. Etc.

Lauterpacht

Precludes the recognition of any entity which is not legally a state is wrong because it constitutes an abuse of the power of recognition which an international tribunal would declare not only to consti tute a wrong but probably also to be in itself valid.

Inter -

The claim or situation in question has to be examined according to the conditions and rules in existence at the time it was made and not at a later date. While creation of particular rights was dependent upon IL of the time, continued existence of such rights depend upon the evolving conditions of a developing legal system

Doctrine

Temporal

Rule

Stimson

Precludes recognition of any government established as a result of external aggression

Doctrine

Estrada

Dealing or not dealing with the government established through a political uph eaval is not a judgment on the legitimacy of the said government

Critical Date

Rights of parties to a territorial dispute have so crystallized that what they do after does not affect legal position

Doctrine

Rule

Hinterland

State that discovers and occupies the coast shall also have an exclusive right to occupy the hinterland (uncharted areas b eyond coastal district)

1.

Territorial Sovereignty

Ø Defined by geographical areas separated by borderlines from other areas and united under a common legal systems.

Doctrine

Sector

Making claims on frozen sea of “ice territory” or remote group of islands in the Arctic

Principle

Ø Includes air space above the land and earth beneath it.

Ø It also includes up to 12 miles of the territorial sea adjacent to the coast.

Doctrine of

Territory of a State includes a territorial sea and the airspace above its land territory and its territorial sea. The possession of this territory is not optional but compulsory

Appurtenance

Ø Concepts:

 
 

Delimitation

Process of determining the land or maritime boundaries of a State by means of geographical coordinates of latitude and longitude.

Doctrine of

Transfer of sovereignty occurs and the successor is recognized as recovering a previous state of independence, the

Reversion

 

Demarcation

Further process and separate procedure of marking a line of

 
Reversion   Demarcation Further process and separate procedure of marking a line of   Tacuboy 13

Tacuboy

13

Public International Law Atty. Basilgo

successor would not be bound by territorial grants by previous holder.

successor would not be bound by territorial grants by previous holder.

Ø Modes of Acquiring

Cession

Transferred from 1 state to another by agreement between them

Discovery

Original mode by which territory not

and

belonging to any state (terra nullius) is placed under the sovereignty of the discovering state Requisites:

a. Intention or will to act as sovereign

Occupation

b. Some actual exercise or display of authority

In choate Title of Discovery

-

The title is acquired by claimant state pending compliance with 2 nd requirement which is administration

Prescription

Continuous and uninterrupted

possession over a long period of time Doctrine of Immemorial Prescription

-

Long and uninterrupted possession by one nation excludes the claim of every other. It must depend upon varying and variable circumstances

Accretion

Accomplished through both natural or artificial processes by gradual and imperceptible deposit of soil

Subjugation

Having been previously conquered or occupied in the course of war of the enemy.

conquered or occupied in the course of war of the enemy. Tacuboy 14 Modes of Acquiring

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14

Modes of Acquiring

Modes of Losing

Cession Discovery and Occupation Prescription Accretion Conquest and Subjugation

Prescription Erosion Cession Dereliction or other natural causes

Ø Outer Space

- Are that lies beyond the airspace of the Earth. But as where it begins, there is no universally accepted reference point.

- The outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means.

Ø Exploration and Use

- Exploration and use of outer space including the moon and other celestial bodies shall be carried out for the benefit and interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Ø Prohibition of Use for Military Application

- Moon and other celestial bodies shall be used exclusively for peaceful operation.

- Prohibited:

Public International Law Atty. Basilgo

a. Placing in orbit around earth any objects carrying nuclear weapons or other weapons of mass destruction

b. Installing such weapons in celestial bodies

c. Station such weapons in outer space in any other manner

d. Establishment of military bases, installations and fortifications

e. Testing of any type of weapo ns

f. Conduct of military maneuvers

Ø

Jurisdiction

-

A state on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object

Ø

Liability

-

The State which launches the object or from whose territory the object is launched shall be liable for damage of any object or its component or parts.

Cases

Bishop Pedro Dulay et al v. Executive Secretary Eduardo Ermita EO 683 is constitutional. The reli efs sought by petitioners are linked to the issue on whether Cargo - Malampaya natural gas reservoir is within the territorial jurisdiction of Palawan and forms part of territorial jurisdiction of the Philippines. The Court took judicial notice of the effort s of both executive and legislative branch to arrive at a common position in redefining the countries baseline in light of UNCLOS. For the Court to rule on this case would be premature and tantamount to a collateral adjudication of the archipelagic baselin e, which is a policy determination that should be left to both branches of government.

that should be left to both branches of government. Tacuboy 15 SS Lotus Case, PCIJ -

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15

SS Lotus Case, PCIJ

- Jurisdiction is territorial: A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so.

- Within its territory, a State may exercise its jurisdiction, on any matter, even if there is no specific rule of international law permitting it to do so.

- International law governs relations between independent States. The rules of law bindin g upon States therefor emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co - existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed

- Criminal Jurisdiction: France, as the flag State, did not enjoy exclusive territorial jurisdiction in the high seas in respect of a collisi on with a vessel carrying the flag of another State. The Court held that Turkey and France both have jurisdiction in respect of the whole incident

- a State would have territorial jurisdiction, even if the crime was committed outside its territory, so long a s a constitutive element of the crime was committed in that State.

2. UNCLOS

Ø Binds States and other subjects of international law in their maritime affairs

Ø Governing Principles

Þ Principle of Freedom – ensure the freedom of various uses of the oceans

Þ Princip le of Sovereignty – seeks to safeguard the interests of coastal States

Þ Principle of Common Heritage of Mankind seeks to promote the common interest of all people

Public International Law Atty. Basilgo

Ø Baselines

Þ Normal baseline low- water line along the coast as marked on large- scale charts officially recognized by the coastal State

Þ Straight baseline – a system of straight lines joining specified or discrete points on the low- water line used only in localities where the coastli ne is deeply indented and cut into baselines are drawn across water, not along the coast.

Þ Closing Lines Across River Mouths and Bays

- Rivers: directly into the sea, the baseline shall be a straight across the mouth of the river between points on the low- water line of its banks

- Bays: customary law has allowed the coastal State to draw a closing line across the entrance of a bay where the landward waters from the closing line have become internal waters

Ø Maximum Length of Baseline of Bays

Distance Between low - water marks on the natural entrance points of a bay

 

Effect on baseline

≤ 24 nautical miles

A

closing line may be drawn

between the 2 low - water marks

>24 nautical miles

A

straight baseline of 24 nautical

miles shall be drawn within the bay

in

such a manner as to enclose the

max area of water that is possible

within a line of that length

a. Internal Waters

within a line of that length a. Internal Waters Tacuboy 16 ¨ Those waters which lie

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16

¨

Those waters which lie landward of the baseline

from the territorial sea is measured. It includes:

W

– waters enclosed by straight baselines

E

– estuaries

L

– landward waters from the closing line of bays

P

– parts of the sea along the coast down to the low- water mark; and

P

- ports and harbors

Thalweg

In the absence of an agreement between the riparian states, the boundary line is laid on the middle of the main navigable channel

Doctrine

Middle of

Where there is a bridge over a boundary river, the boundary line is the middle or center of the bridge.

the Bridge

Doctrine

Magallona et al v Executive Secretary (GR No 187167) RA 9522 effectively classified the Kalayaan island group and the Scarborough Shoal as Regime of island consistent with UNCLOS III which manifests th e Philippine State’s responsible observance of its Pacta sunt servanda obligation The recognition of archipelagic States’ archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate isl ands under UNCLOS III. Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’ territorial sovereignty, subjecting these waters to the rights of other States under U NCLOS III. UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space·the exclusive economic zone·in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclus ively exploit the resources found within this zone up to 200 nautical miles. UNCLOS

Public International Law Atty. Basilgo

III, however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS Absent an UNCLOS III compl iant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a two - fronted disaster:

first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago; and second, it weakens the country’s case in any international dispute over Philippine maritime space. These are consequences Congress wisely avoided. The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA 9522, allows an internationally - recognized delimitation of the breadth of the Philippin es’ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest.

b. Territorial Sea

¨ A marine space under the territorial sovereignty of the coastal State up to a limit not exceeding 12 nautical miles measured from baselines.

¨ It comprises the seabed and its subsoil, the adjacent waters and its airspace.

¨ Right of Innocent Passage – it is the right of foreign merchant ships (as distinct from warships) to pass unhindered through the territorial sea of a coast.

Anglo - Norwegian Fisheries Case (ICJ 1951) The court, confining itself to the conclusions of UK, finds that it does not vio late international law. But the delimitation of the sea areas has always an international aspect since it interests States other than the coastal State, so it cannot be dependent merely upon the will of the

State, so it cannot be dependent merely upon the will of the Tacuboy 17 latter. Since

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17

latter. Since the territorial sea is closely depe ndent upon the land domain, the base - line must not depart to any appreciable extent from the general direction of the coast; certain waters are closely linked to the land formations which divide or surround them so it may be necessary to have regard to cer tain economic interests peculiar to a region when their reality and importance are clearly evidenced by a long usage. Judgment notes that a Norwegian Decree of 1812 as well as other decrees show that the method of straight lines, imposed by geography, has been established in the Norwegian system and consolidated by a constant and sufficiently long practice. The general toleration of the international community also shows that the Norwegian system was not regarded as contrary to international law. Judgment c oncludes that the lines drawn were justified. The exclusive privilege to fish and hunt whales granted in the 17 th century to a Norwegian subject, from which it follows that these waters were regarded as falling exclusively within Norwegian sovereignty.

E l Slavador v Honduras (ICJ 1991)

- Islands of the Gulf of Fonseca. None of the islands had been terra nullius in 1821, the date of independence. Thus, sovereignty over the islands had been achieved according to the uti possidetis juris principle (colonial boundaries are continually adopted). However, the application of this principle suffered from the lack of documents that might have testified clearly the appertainance of the islands to one administrative district or the other. Thus the Court was forced to concentrate more on the behaviour of the parties with regard to the islands after 1821. On this basis the Court found that El Tigre appertained to Honduras and Meanguera and Meanguerita to El Salvador.

- Gulf of Fonseca = Juridical Bay under UNCLOS and Hist orical Bay under Customary International Law. Considering the dimensions and proportions, the Gulf would today be regarded as a juridical bay in accordance with UNCLOS. However, the Gulf was not a single State bay but constituted a so called historical bay , which is neither defined in the 1958 Convention nor in the Convention of 1982. From this fact the Court concluded that its decision had to be taken on the basis of customary international law. Court looked at the Central American Court of Justice of 1917 conclusion that the Gulf of Fonseca effectively constituted a "closed sea"

Public International Law Atty. Basilgo

belonging to all three coastal States communally, with the exception of a three mile zone established unilaterally by each coastal State. Thus, the Central American Court viewed th e Gulf of Fonseca as a condominium resulting from the succession of the three States from Spain in 1821. Until then, the Gulf had been a single State bay belonging to Spain alone. According to the Court, the decision of the Central American Court underline d the fact that at the time of independence, no boundaries were delimited in the Gulf and thus the waters had remained undivided.

- Court held that Gulf of Fonseca was a case of "historic waters", whereby the three coastal States had succeeded to communal so vereignty. In contrast to the frontier delimited on land, the waters of the Gulf had never been divided or otherwise delimited after the independence of the three coastal States. Thus, the communal succession for the three States was a logical consequence of the uti possidetis juris principle with regard to the sovereignty of the Gulf. so as to be judicially recognized and determined"

US v California (382 US 448)

- The Court ordered that the decree entered in this cause in 27 October 1947, be modified to read as follows: Against State of California and all persons claiming under it – the subsoil and seabed of the continental shelf, more that 3 geographical miles seaward from the nearest point or points on the coast line, at all times pertinent hereto have appe rtained and now pertain to the US and have been and now subject to its exclusive jurisdiction, control and power of disposition. State of California has no title or property interest therein. Pursuant to the Submerged Lands Act, California has “title to an d ownership of the tidelands along its coast and the submerged lands, minerals, other natural resources and improvements underlying the inland waters and the waters of the Pacific Ocean within 3 geographical miles seaward from the coast line.” Conversely, “the subsoil and seabed of the continental shelf, more than three geographical miles seaward from the nearest point or points on the coast line appertain to the United States.”

- “coast line” - the line marking the seaward limit of inland waters which is tak en by natural or artificial means, and includes the

is tak en by natural or artificial means, and includes the Tacuboy 18 outermost permanent harbor

Tacuboy

18

outermost permanent harbor works that form an integral part of the harbor system within the meaning of Article 8 of the Convention on the Territorial Sea and the Contiguous Zone.

- “Inland waters” mean wate rs landward of the baseline of the territorial sea, which are now recognized as internal waters of the United States under the Convention on the Territorial Sea and the Contiguous Zone.

- The parties shall submit to the Court for its approval any stipulation or stipulations that they may enter into, identifying with greater particularity all or any part of the boundary line, as defined by this decree, between the submerged lands of the United States and the submerged lands of the State of California, or ident ifying any of the areas reserved to the United States by § 5 of the Submerged Lands Act. As to any portion of such boundary line or of any areas claimed to have been reserved under § 5 of the Submerged Lands Act as to which the parties may be unable to agr ee, either party may apply to the Court at any time for entry of a further supplemental decree.

US v Louisiana (382 US 11)

- That part of Louisiana’s coastline, which, under the Submerged Lands Act, consists of the line marking the seaward limit of inland w aters, is to be drawn in accordance with the Convention’s definitions. In US v. California, the Court held that the Convention’s definitions were the best and most workable available and adopted them for the purpose of the Submerged Lands Act. Louisiana ar gues initially that the 1895 Act is in pari materia with the Submerged Lands Act. Congress, it is said, must have contemplated that a technical term such as inland waters should have the same meaning in different statutes. The phrase appears, however, in q uite different contexts in the two pieces of legislation.

- While the Submerged Lands Act established boundaries between the lands of the States and the Nation, Congress’ only concern in the 1895 Act was with the problem of navigation in waters close to this Nation’s shores. There is no evidence in the legislative history that it was the purpose of Congress in 1953 to tie the meaning of the phrase inland waters to the 1895 statute.

Public International Law Atty. Basilgo

- The Court’s adoption of the Convention’s definition was for purposes of the Su bmerged Lands Act and not simply for the purpose of delineating a particular state’s coastline. If the inconvenience of an ambulatory coastline proves substantial, the problems may be resolved through legislation or agreement between the parties.

c. Straits

¨ a narrow passageway connecting 2 bodies of water. If the distance between the 2 opposite coasts is not more than 6 miles they are considered internal waters

d. Archipelagos

¨ Group of islands including parts of islands interconnecting waters, and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity which historically have been regarded as such.

¨ Requisites

a. Existence of a group of islands

b. Historical practice

c. Existence of an intrinsic geographical, economic and political entity

d. Compactness or adjacency of islands.

¨ Kinds of Archipelago a. Coastal – group of islan ds situated so close to a mainland that they may be considered a part thereof

to a mainland that they may be considered a part thereof Tacuboy 19 b. Outlying or

Tacuboy

19

b. Outlying or Mid- Ocean – group of islands situated in the ocean at such distance from the coasts of firm land as to be considered as an independent whole rather than forming part of or outer coastline of the mainland

¨ Condition for Drawing Archipelagic Baselines:

a. Archipelagic waters must include main islands, and the ratio of the area of the water to the area of the land, including atolls is between 1 to 1 and 9 to 1;

b. The length of the baselines shall not exceed 100 nm; however up to 3% of the total number of baselines enclosing any archipelago may exceed that length up to a maximum length of 125 nm

c. The drawing of the baselines shall not depart to any appreciable extent from the gen eral any appreciable extent from the general configuration of the archipelago

d. The baselines shall not be drawn to and from low - tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or wh ere a low - tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island

e. The system of baselines shall not be applied in such a manner as to cut off from the high seas or the EEZ the terri torial sea of another State

f. If a part of the archipelagic waters of an archipelagic State lies between 2 parts of an immediately adjacent neighboring State, existing rights and all other legitimate interests which the latter State has traditionally exercis ed in such waters and all rights stipulated by agreement between those States shall continue and be respected

g. For the purpose of computing the ratio of water to land under Par 1, land areas may include waters lying within the fringing reeds of islands and atolls, including that part of a steep - sided oceanic plateau which is enclosed or nearly enclosed by a

Public International Law Atty. Basilgo

h.

i.

chain of limestone islands and drying reefs lying on the perimeter of the plateau

The baselines shall be shown on charts of a scale adequate for ascertai ning their position. Alternatively lists of geographical coordinates of points specifying the geodetic datum may be submitted State shall give due publicity to such charts or list of geographical coordinates and shall deposit a copy of each such chart or l ist with the UN secretary - general.

¨ Archipelagic Baselines Under RA9522 baselines laws are enacted by UNCLOS III State parties to mark- out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geo graphic starting points to measure the breadth of the maritime zones and continental shelf.

Legend: Baseline (RA 5448) Baseline (RA 9522) 200M EEZ Top & US- UK Treaty Limits
Legend:
Baseline (RA 5448)
Baseline (RA 9522)
200M EEZ
Top & US- UK Treaty Limits
PD1596
(RA 9522) 200M EEZ Top & US- UK Treaty Limits PD1596 Tacuboy UNCLOS Art 49 The

Tacuboy

UNCLOS

Art 49

The waters enclosed by the archipelagic baselines drawn in accordance with Art 47 regardless of their depth of distance from the coast. An archipelagic State exercises territorial sovereignty over its archipelagic waters.

Art 52

Requisites for Suspension of Right of Innocent Passage in Archipelagic Water s:

P

– shall take effect only after having been duly published

– such suspension is essential for the protection of its security W – suspension is made without discrimination

E

T

– suspension is only temporary

S

– specify the areas of its archipelagic waters where innocent passage shall not be allowed.

Art 53

Archipelagic Sea Lanes Passage

-

The exercise in accordance with UNCLOS III of the rights of navigation and overflight in the normal mode solely for t he purpose of continuous, expedi tious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone)

e.

The Contiguous Zone

¨ This is an area of water not exceeding 24 nautical miles from the baseline. It thus extends 12 nautical miles from the edge of the territorial sea. The coastal state exercises authority over that

20

Public International Law Atty. Basilgo

area to the extent necessary to prevent infringement of its customs, fiscal, immigration, or sanitation authority over its territorial waters or territory and to punish such infringement.

¨ Take note that the power of control does not change the nature of the waters. Beyond the territorial sea, the waters are high sea and not subject to the sovereignty of the coastal state.

¨ This was added as a response to ships which would linger in areas beyond the State’s juri sdiction, thus beyond the State’s criminal jurisdiction, but would do acts inimical to the coastal State. Remember that the jurisdiction is limited; beyond the 4 areas, follow the regime of the EEZ. Take note that this is the only optional regime.

f. The Continental Shelf

¨ The continental shelf of a coastal State

¨ This refers to

a. the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth allows exploitation; and

b. the seabed and subsoil of areas adjacent to

islands. Under specified circumstances the con tinental shelf can extend up to a distance of 350 miles.

¨ The coastal state has the right to explore and exploit its natural resources, to erect needed

explore and exploit its natural resources, to erect needed Tacuboy 21 installations, and to erect a

Tacuboy

21

installations, and to erect a safety zone over its installations with a radius of 500 meters. These rights do not depend on occupation, effective or notional, or any express proclamation. This right does not affect the right of navigation of others. Moreover, this right does not extend to non - resource material in the shelf area such as wrecked ships and their cargoes. Coastal states also have the right to regulate, authorize, and conduct marine scientific research on the continental shelf.

¨ Take note that artificial islands or installations are not islands under UNCLOS, though coastal states may establish safety zones and prescribe safety measures around them. Islands do have their own continental shelves.

Libya v Malta (ICJ 1985)

A. The principles and rules of international law applicable for the delimitation, to be effected by agreement in implementation of the present Judgment, of the areas of continental shelf appertaining to the Socialist People’s Libyan Arab Jamahiriya and to the Republic of Malta respectively are as follows:

- The delimitation is to be effected in accordance with equitable principles and taking account of all relevant circumstances, so as to arrive at an equitable result;

- The area of continental shelf to be found to appertain to either Party not extending more than 200 miles from the coast of the Party concerned, no criterion for delimitat ion of shelf areas can be derived from the principle of natural prolongation in the physical sense.

B. The circumstances and factors to be taken into account in achieving an equitable delimitation in the present case are the following:

Public International Law Atty. Basilgo

- The general configuration of the coasts of the Parties, their oppositeness, and their relationship to each other within the general geographical context;

- The disparity in the lengths of the relevant coasts of the Parties and the distance between them

C. The need to avoid in the delimitation any excessive disproportion between the extent of the continental shelf areas appertaining to the coastal State and the length of the relevant part of its coast, measured in the general direction of the coastlines.

D. In consequence, an e quitable result may be arrived at by drawing, as a first stage in the process, a median line every point of which is equidistant from the low - water mark of the relevant coast of Malta (excluding the islet of Filfla), and the low - water mark of the relevant coast of Libya, that initial line being then subject to adjustment in the light of the above - mentioned circumstances and factors

E. The adjustment of the median line referred to in subparagraph C above is to be effected by transposing that line northwards thr ough eighteen minutes of latitude (so that it intersects the meridian 15 E at approximately latitude 34; N) such transposed line then constituting the delimitation line between the areas of continental shelf appertaining to the Socialist People’s Libyan Ar ab Jamahiriya and to the Republic of Malta respectively.

Arigo v Swift (Petition for Writ of Kalikasan 2014)

- During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of the US in this case, when its warship e ntered a restricted area

- in violation of R.A. No. 10067 and caused damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS).

- He explained that while historically, wars hips enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules and regulations of the coastal State regarding passage through the latter’s internal waters and the territorial sea.

the latter’s internal waters and the territorial sea. Tacuboy 22 - The UNCLOS gives to the

Tacuboy

22

- The UNCLOS gives to the coastal State sovereign rights in varying degrees over the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5 ) the high seas. It also gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel is located

- Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty, subject to the U NCLOS and other rules of international law.

- An exception to sovereign immunity granted by state. The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the noncompliance by a warship or other government ship operated for noncommercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law.

g. Exclusive Economic Zone

¨ T he EEZ is an area beyond and adjacent to the territorial sea, not extending beyond 200 nm form the baseline of territorial sea. The coastal State must claim the zone in order to establish an EEZ

¨ Rights, Jurisdiction and Duties of the Coastal State in EEZ: (UNCLOS III Art 56, Par 1)

1. Sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural resources, whether living or non - living, of the waters superjacent to the seabed and of the seabed and its subsoil and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, current and winds

2. Jurisdiction as provided by UNCLOS III with regard to:

Public International Law Atty. Basilgo

a. Establishment and use of artificial islands, installation s and structures

b. Marine scientific research

c. The protection and preservation of marine environment

3. Other rights and duties provided for in UNCLOS III

h. Delimitation of Maritime Boundaries

¨ Regarding the delimitation of the territorial sea between States with opposite or adjacent coasts, neither of them is entitled to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines of each of them, unless they agree to do so, or if historic title or other special circumstances make it necessary to delimit the territorial seas in other ways.

¨ The delimitation of the EEZ and continental shelf between States with opposite or adjacent coasts must be done by agreement on the basis of international law (ex. equitable principles which have a normative character as part of general international law). Pending this they may make provisional arrangements of a practical nature, and they must not jeopardize or hamper the reaching of a final agreement. If no agreemen t can be reached within a reasonable period of time, the parties shall resort to peaceful means of dispute settlement.

i. The High Seas

to peaceful means of dispute settlement. i. The High Seas Tacuboy 23 ¨ All parts of

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23

¨ All parts of the sea that are not within an EEZ, the territorial sea, internal waters or archipelagic waters. (UNCLOS III Art 86)

¨ No state may subject any part of the high seas to its sovereignty (UNCLOS III Art 89)

¨ All states including land - locked states, enjoy the freedoms of the high seas. They are not absolute, but must be exercised with due regard for the interests of other states in their exercise of the same freedoms (UNCLOS III Art 87)

¨ Jurisdiction over Collision Cases

- In the event of a collision or other incident of navigation concerning a ship on the high seas, penal and administrative jurisdiction is now limited to: (UNCLOS III Art 97)

1. Flag State of the vessel alleged to be responsible, and

2. State of nationality of accused

¨ Right of Hot Pursuit

- Allows the competent authorities of the coastal State to pursue a foreign ship in the high seas when they have good reason to believe that the shop has violated the laws and regulations of that state (UNCLOS III Art 111)

¨ Nationality of Vessels

- Ships have the nationality of the State whose flag they are entitled to fly. However there must exist a genuine link between state and the

Public International Law Atty. Basilgo

ship (UNCLOS Art 91) otherwise flag State merely becomes flag of convenience.

- A State may not confer its nationality upon a ship that is already flying the flag of another state (UNCLOS III Art 92)

j. Conservation & Management of Living Resources of the High Seas ¨ All states have the right for their nationals to engage in fishing on the high seas, subject to their treaty obligations, the rights and duties of coastal states, and the UNCLOS provisions. In li ne with this, all states have the duty to take, or to cooperate with other states in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas (e.g. determining the allowable catch).

NZ & Australia v Japan (ITLOS order 1999)

- Australia and New Zealand alleged that Japan had failed to comply with its obligation to cooperate in the conservation of the southern blue fin tuna (SBT) stock by undertaking unilateral experimental fishing f or southern bluefin tuna in breach of its obligations under Arts 64 and 116 to 119 of UNCLOS in relation to the conservation and management of the SBT. They are also asking for provisional remedies in the form of an order commanding Japan to desist from su ch unilateral experimental fishing.

- Highly Migratory Species must be protected! Under art 64, read together with arts 116 to 119, of the Convention, States Parties to the Convention have the duty to cooperate directly or through appropriate international o rganizations with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species.

of optimum utilization of highly migratory species. Tacuboy 24 - SOUTHERN BLUE FIN TUNA, A HIGHLY

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24

- SOUTHERN BLUE FIN TUNA, A HIGHLY MIGRATORY SPECIES OF FISH! The list of highly migratory species contained in Annex I to the C onvention includes southern bluefin tuna: thunnus maccoyii;

- Provisional Remedies granted catch limit set (Japan made a clear commitment that the 1999 experimental fishing programme will end by 31 August anyway). PROVISIONAL MEASURES AIMS TO PRESERVE RIGHTS AND HARM TO ENVIRONMENT. In accordance with art 290 of the Convention, the Tribunal may prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment. MEASURES SHO ULD BE TAKEN TO PRESERVE RIGHTS AND AVERT MORE DETERIORATION. Although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the par ties and to avert further deterioration of the southern blue fin tuna stock.

k. Right of Land- Locked States to & from EZZ

¨

A

land - locked state is one which has no sea- coast.

These states have the right of access to and from the sea and the freedom of transit through the

territory of a transit state (a state, with or without

a

sea- coast, situation between a land - locked state

and the sea, through whose territory traffic in transit passes). Traffic in transit shall not be subject

to any customs duties, taxes, o r other charges, except those levied for specific services rendered in connection with such traffic.

l. International Se abed Area

¨

These are areas of the seabed and the ocean floor, and their subsoil, which lie beyond any national jurisdiction. These are the common heritage of

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mankind and may not be appropriated by any state or person. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority (the International Sea- Bed Authority) shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with the relevant provisions of UNCLOS. The Enterprise is the organ of the Authority which shall carry out activities in the Area directly as well as the transporting, processing, and marketing of minerals recovered from the Area, and shall have its principal place of business at the seat of the Authority.

m. Navigation

¨ Every State has the right to sail ships flying its flag on the high seas. It is the State s right to decide the conditions by which it will accord the right to fly its flag. No ship may change its flag during its voyage except in case of transfer of ownership or on the basis of change of registry. If a ship sails under the flag of 2 states, it is considered as having no nationality and may not claim any of the nationalities represented by these flags with respect to any other State. Only the flag state may exercise criminal jurisdiction over the master or any person in the service of the shi p. This is a departure from the SS Lotus case. Also the flag state shall have the duty to require the ship s master, without danger to the crew or passengers, to render assistance to any person at sea in danger of being lost, or to rescue persons in distress.

in danger of being lost, or to rescue persons in distres s. Tacuboy 25 n. Settlement

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n. Settlement of Disputes

¨ Peaceful settlement of disputes is compulsory. If a bilateral settlement fails, UNCLOS requires submission of the dispute for compulsory settlement in one of the tribunals clothed with jurisdiction. The alternatives are the International Tribunal for the Law of the Sea, the ICJ, or an arbitral tribunal constituted under the Convention.

3. Jurisdiction & Immunities

Ø Jurisdiction – power or authority exercised by a State over land, persons, property, transaction and events

- Centers upon whish State has sovereignty or legal control over land, persons, ships at sea, airships in flight, property, transactions or events in various situations.

Ø Categories:

1. Jurisdiction to Prescribe – to make its law applicable to persons or activities

2. Jurisdiction to adjudicate – to subject particular persons or things to judicial process

3. Jurisdiction to enforce and execute – to use the resources of government to induce or compel compliance with its law

Ø Bases

Territoriality

a.

Subjective – if an activity takes place within territory of the Forum state then it has the jurisdiction to prescribe a rule for that activity

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b. Objective – action takes place outside the territory but the primary effect of that activity is within the state

c. Effects Doctrine – a state h as jurisdiction over acts occurring outside its territory but having effects within it

Nationality

a. Active Nationality – basis for jurisdiction where state asserts the right to prescribe law for an action based on nationality of actor

b. Passive Nationality – theory of

jurisdiction based on nationality of victim

-

Rarely used because it is offensive to insist that foreign laws are not sufficient to protect its citizen and victim is not being prosecuted

Protective

Sovereign punishes actions committed i n other places solely because it feels threatened by those actions

Principle

Universality

Jurisdiction over crimes committed by aliens outside the territory on the sole basis of presence of alien within the territory of state assuming jurisdiction (piracy, slavery, genocide, hijacking, war)

Jurisdiction

States confer jurisdiction through international agreements

based on

Agreement

 
agreements based on Agreement   Tacuboy 26 Ø Doctrine of State Immunity - State enjoys

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Ø Doctrine of State Immunity

- State enjoys immunity from the exercise of jurisdiction by another State. Courts of one state may not assume jurisdiction over another.

Ø Restrictive Application

- Absolute sovereign immunity is no longer recognized

Ø Diplomatic and Consular Relations

Diplomatic Relations

 

Consular Relations

Focused on political relations between states

Relationship between

foreigners

Consent of receiving state to establish a diplomatic mission includes the consent to establish a consular post

A

consular post may serve

as a step towards the establishment of a diplomatic mission, but does not establish one itself

Establishment signified recognition of a state as subject of PIL

Does not necessarily signify recognition of state as subject of PIL

Ø Diplomatic Protection an d Consular Assistance

Diplomatic Protection

Consular Assistance

Procedure employed by the State of nationality of the injured person to secure protection of that person and to obtain reparation for the internationally wrongful act inflicted

consular officer will assist its nationals and ensure

A

their rights in the foreign State are properly

respected

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A state has no international legal duty to provide assistance to its nationals abroad but domestic law may require it to do so

A right of the national provided by the Vienna Convention on Consular Relations and customary law

Ø Agents of Diplomatic Intercourse

a. Head of state

b. Foreign secretary or minister

c. Members of diplomatic service

d. Special diplomatic agents appointed by head of state

e. Envoys ceremonial

Cas es on Jurisdiction

People v Lol - lo & Saraw (43 Phil 19)

- Piracy is, robbery or forcible depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and intention of universal hostility.

- Pirates are in law hostes humani generis. Piracy is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. The jurisdict ion of piracy unlike all other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime was committed within the jurisdictional 3 - mile limit of a foreign state, "for those limits, though neutral to war, are not neutral to crimes." (U. S. vs. Furlong [1820], 5 Wheat., 184.)

Tubb v Greiss (78 Phil 249) Limit on sovereignty. Since such part of the US Army is stationed in the RP with permission of our government, & petitioners, who belong to the m ilitary personnel of that army, are charged with violations of

personnel of that army, are charged with violations of Tacuboy 27 Articles of War for offenses

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Articles of War for offenses committed in areas under the control of the US Army, a settled principle of international law gives said army jurisdiction over their person and the offenses charge d. IL rule: a foreign army allowed to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil & criminal jurisdiction of the place; the agreement for the stationing of the US Army or a part of its forces in the RP implies a waiver of all jurisdiction over their troops during the time covered by such agreement, & permits the allied general or commander - in - chief to retain that exclusive control & discipline which the government of his a rmy may require. Considering that a part of the United States Army is stationed in the Philippines with permission of our government, and that petitioners who belong to the military personnel of that army are charged with violations of Articles of War for offenses committed in areas under the control of the United States Army thereby giving said army jurisdiction over their person and the offenses charged

Haw Pia v China Banking (80 Phil 604) Sequestration v. Confiscation. Confiscation is not allowed unde r the Hague Regulations. There was no confiscation here but a mere sequestration. Under international law, the occupying power can effect a liquidation that is in the form of a mere sequestration. In the effort of occupying powers to control enemy property within their jurisdiction in order to avoid their use in aid of the enemy and to increase their own resources, they had to resort to such measures of prevention which do not amount to a straight confiscation, as freezing, blocking, placing under custody, and sequestrating the enemy private property. Measures of prevention are not repugnant to Hague Regulations. This is based on [1] writings of well - known writers on International Law, [2] express authorization granted under the Army and Navy Manual of Milit ary Government and Civil Affairs of US and of other civilized countries, and [3] Trading with the Enemy Acts of the US and other civilized countries. Thus, there was valid tender of payment to BOT which discharged Haw Pia s obligation.

Brownell v Sunlife (95 Phil 228)

- Exclusive jurisdiction. The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It is susceptible of

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no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power in which would impose such restriction. All exceptions to the full and complete power of a nation within it s own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. The consent of a Senate to the operation of a foreign law within its territory does not need to be express; it is enough that said consent

- be implied from its conduct or from that of its authorized officers. Ratification can be given tacitly as well as expressly. Tacit ratification takes place when a State begins the execution of a treaty wit hout expressly ratifying it.

- The ratification of or concurrence of the RP to the agreement for the extension of the Philippine Property Act of 1946 is clearly implied from the acts of the President of the RP and of the Secretary of Foreign Affairs, as well as by the enactment of RAs 7, 8, and 477. US laws have no extraterritorial effect. The application of said law in the RP is based concurrently on said act (Philippine Property Act of 1946) and on the tacit consent thereto and the conduct of the RP Governm ent itself in receiving the benefits of its provisions.

Cases on Sovereign Immunities Under Military Bases Agreement

Lyons Inc. v USA (104 Phil 593) State immunity lost when state enters into proprietary contract. Case dismissed for failure to exhaust ad ministrative remedies but SC said, generally, the sovereign cannot be sued in its own courts, or in any other, without its consent and permission. However, considering that the US Government, through its agency at Subic Bay, entered into a contract with ap pellant for stevedoring & miscellaneous labor services within the Subic Bay area, a US Navy Reservation, it is evident that it can bring an action before our courts for any contractual liability that that political entity may assume under the contract.

that that political entity may assume under the contract. Tacuboy 28 USA v Ruiz (136 SCRA

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USA v Ruiz (136 SCRA 487)

- Action to compel US to award of harbor works contract.

- State immunity not lost when state enters into sovereign contracts.

- The traditional rule of State immunity exempts a State from being sued in the courts of another State witho ut its consent or waiver. This rule is a necessary consequence of the principles of independence and equality of States. Because the activities of states have multiplied, it has been necessary to distinguish them between sovereign and governmental acts (j ure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii. But, the restrictive application of State immunity is proper only when the proceedings arise out of commerc ial transactions of the foreign sovereign, its commercial activities or economic affairs. A State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into busin ess contracts. It does not apply where the contract relates to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense of both the US and the RP, indisputably a function of t he government of the highest order; they are not utilized for nor dedicated to commercial or business purposes. The correct test for the application of state immunity is not the conclusion of a contract by a state but the legal nature of the act.

Wylie v Rarang (209 SCRA 357)

- Express consent is effected only by the will of the legislature through the medium of a duly enacted statute. Court held that not all contracts entered into by the government will operate as a waiver of its non - suability; distinction must be made between its sovereign and proprietary acts. As for the filing of a complaint by the government, suability will result only where the government is claiming affirmative relief from the defendant.

- The general rule is that public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is showing of bad faith.

- Indeed the imputation of theft contained in the POD dated February 3, 1978 is a defamation against the character and reputation of the

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private respondent. Petitioner Wylie himself admitted that the Office of the Provost Marshal explicitly recommended the deletion of the name Auring if the article were published. The petitioners, how ever, were negligent because under their direction they issued the publication without deleting the name "Auring". Such act or omission is ultra vires and cannot be part of official duty. It was a tortious act which ridiculed the private respondent.

- Immuni ty from suit. The doctrine cannot institutionalize irresponsibility and non - accountability nor grant a privileged status not claimed by any other official of the Republic. An act or omission that is ultra vires cannot be part of official duty, but is a tor tious act.

USA v Reyes (219 SCRA 192)

- Discrimination case against store manager in an exchange in JUSMAG.

- The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in exces s of the powers vested in him. It is a well - settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his autho rity or jurisdiction. (Shaufer v. CA and Animos et.al vs. Philippine Veterans Affairs Office, et.al)

- Bradford was sued in her private or personal capacity for her acts beyond the scope of official functions.

- Even on the claim of diplomatic immunity – which Bradford does not in fact pretend to have in the case since she is not among those granted diplomatic immunity under Art 16(b) of the 1953 Military Assistance Agreement creating the JUSMAG – there can be no doubt that Montoya has sufficient and viable cause of action. Bradford's purported non - suability on the ground of state immunity is then a defense which may be pleaded in the answer and proven at the trial.

which may be pleaded in the answer and proven at the trial. Tacuboy 29 - Since

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- Since Bradford did not file her Answer within th e reglementary period, the trial court correctly declared her in default upon motion of the private respondent.

JUSMAG Philippines v NLRC (239 SCRA 224)

- Sovereign immunity: contract in discharge of governmental function.

- A suit against such as agency is a suit against the US Government, albeit it was not impleaded in the complaint. Considering that the US has not waived or consented to the suit, the complaint against JUSMAG cannot not prosper. Immunity of State from suit is a universally recognized princip le. In international law, "immunity" is commonly understood as an exemption of the state and its organs from the judicial jurisdiction of another state. This is anchored on the principle of the sovereign equality of states under which one state cannot asse rt jurisdiction over another in violation of the maxim par in parem non habet imperium (an equal has no power over an equal).

- The doctrine of Immunity is restricted to sovereign or governmental activities (jure imperil) and cannot be extended to commercia l, private and proprietary acts (jure gestionis) The contract was entered into in the discharge of its governmental functions, the sovereign state cannot be deemed to have waived its immunity from suit.

International Organizations

WHO v Aquino (48 SCRA 2 42)

- Invoking functional immunity: certification from DFA. RA 75, meant to safeguard the jurisdictional immunity of diplomatic officials in the Philippines, declares as null and void writs or processes sued out or prosecuted whereby inter alia the person of an ambassador or public minister is arrested or imprisoned or his goods or chattels are seized or attached and makes it a penal offense for "every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every officer concer ned in executing it" to obtain or enforce such writ or process. Judge Aquino should have quashed the search warrant application. Court bound by DFA certification as to official capacity.

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Minucher v CA (214 SCRA 242)

- No functional immunity WITH REGARD TO personal acts.Whether such claim arises from criminal acts or from tort, there can be no question that private respondent was sued in his personal capacity for acts committed outside his official functions duties. CA g ravely abused its discretion in dismissing the civil case on the basis of an erroneous assumption that simply - because of the [self - serving] Diplomatic Note, the private respondent is clothed with diplomatic immunity, thereby divesting the trial court of ju risdiction over his person. It may at once be stated that even if the Calzo enjoys diplomatic immunity, a dismissal of the case cannot be ordered on the ground of lack of jurisdiction over his person, but rather for lack of a cause of action because even if he committed the imputed act and could have been otherwise made liable therefor, his immunity would bar any suit against him in connection therewith and would prevent recovery of damages arising therefrom.

- In Shauf v. CA: Authorities state that the doct rine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. A public official may be liable in his personal private capacity for whatever damage he may haw mused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction.

SEAFDEC v Acosta (226 SCRA 49)

- SEAFDEC is an international agency enjoying diplomatic immunity, enjoying functional independence and free dom from control of the state in whose territory its office is located. One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it is immune from the legal writs & processes issued by the tribunals of th e country where it is found. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium thru which the host government may

a convenient medium thru which the host government may Tacuboy 30 interfere in their operations or

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interfere in their operations or even influence or control its policies and decisions of the organization; besides, such objection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member - states. Important: non - political purpose + autonomy.

Holy See v Rosario (238 SCRA 524)

- Action for reconveyance & damages by first buyer against seller Holy See, after failure to complete payment.

- DFA certification confirms sovereign immunity. The Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, it has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the world. Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person. RP has accorded the Holy See the status of a foreign sovereign. The property was donated to the Holy See for it to establish its diplomatic premises but was forced to sell after failure to evict squatter s.

- Test: whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pur suit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.

- The privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the DFA. The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (ICMC v. Calleja). Where the plea of immunity is re cognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country's foreign relations (WHO v. Aquino). Remedy: a person who feels aggrieved by the acts of a foreign

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sovereign can ask his own government to espouse his cause through diplomatic channels

ICMC v Calleja (GR No 85750)

- Petition for Certification Election of rank and file members of the labor union in ICMC, a Vietnam War refugee processing center, non - profit & UN registered.

- Functional immunity for IO. International Organization is generally used to describe an organization set up by agreement between two or more states. Under contemporary international law, such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights, duties and powers. They are organized mainly as a means for conducting general international business in which the member states have an interest.

- The UN is an international organization dedicated to the propagation of world peace. The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the DOLE would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in acc ordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions.

Liang v People (GR No 125865) DFA certification disregarded. SC disregarded the office of protocol from the DFA stating that Liang is covered by immunity from legal process under Section 45 of the Agreement between the ADB and the RP regarding the Headquarters of the ADB in the RP. The MR focused on the diplomatic immunity of officials and staff of ADB from legal and juridical processes in the Philippines and the constitutional and political basis of that immunity. It should be made clear that nowhere in the assailed Decision is diplomatic immunity de nied, even remotely. The slander of a person, by any stretch, cannot be considered as falling within the purview of the immunity granted to ADB officers and personnel. The issue of whether or not Liang’s utterances constituted oral defamation is still for the trial court to determine.

oral defamation is still for the trial court to determine. Tacuboy 31 Sovereign (Head of State

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Sovereign (Head of State Immunities)

Forbes v Chuoco Tiaco (16 Phil 534)

- The same general considerations of public policy and convenience which demand for judges of courts of superior jurisdiction immunity from civil suits for damages arising from acts done by them in the course of the performance of their official functions apply to the acts of the Governor - General of the Philippine Islands when engaged in the discharge of the duties imposed upon him by law.

- The principle o f non - liability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor - General. It simply means that the Gov - Gen, like judges of the Court and members of the legislature may not be personally mulcted in c ivil damages for the consequences of an, act executed in the performance of his official duties. The judiciary has full power to, and will, when the matter is properly presented to it and the occasion justly warrants it, declare an act of the Governor - Gen eral illegal and void and place as nearly as possible in status quo any person who has been deprived of his liberty or his property by such act.

- The Gov - Gen is “the chief executive authority," one of the coordinate branches of the Government, each of which , within the sphere of its governmental powers, is independent of the others. Within these limits the legislative branch cannot control the judicial nor the judicial the legislative branch, nor either the executive department. In the exercise of his politi cal duties the Governor - General is, by the laws in force in the Philippine Islands, invested with certain important governmental and political powers and duties belonging to the executive branch of the Government, the due performance of which is entrusted to his official honesty, judgment, and discretion. So far as these governmental or political or discretionary powers and duties which adhere and belong to the Chief Executive, as such, are concerned, it is universally agreed that the courts possess no powe r to supervise or control him in the manner or mode of their discharge or exercise.

- For the judiciary to interfere, for the purpose of questioning the manner of exercising the legal and political duties of the chief executive head of the Government or to control the action of the

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legislative department, would, in effect, destroy the independence of the departments of the Government and would make all departments subject to the ultimate control of the judicial. Such a conclusion or condition was never conte mplated by the organizers of the Government.

Kuroda v Jalandoni

- RP Consti. adopts the generally accepted principles of international law as part of the law of the nation. EO68 and prescribing rules and regulations governing the trial of accused war crimin als is valid and constitutional since Art. 2 of our Constitution provides in its section 3, that The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation. So even without local legislation, the Constitution has provided for the application of international law.

- The rules & regulations of the Hague, Geneva Conventions form part of are wholly based on the generally accepted principles of internationa l law. Even if RP is not a signatory to the Hague Conv. and signed the Geneva Conv. only in 1947, it can’t be denied that the rules and regulations of the Hague and Geneva conv. form part of and are wholly based on the generally accepted principles of inte rnational law. In fact, these rules and principles were accepted by the 2 belligerent nations, US and Japan, who were signatories to the 2 Conventions. Such rules and principles, therefore, form part of the law of our nation even if RP 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 b een or shall be a signatory.

David v Arroyo (GR No 171396) Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distr action to enable him to fully attend to

hindrance or distr action to enable him to fully attend to Tacuboy 32 the performance of

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the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people but h e may be removed from office only in the mode provided by law and that is by impeachment.

Hilao v Estate of Ferdinand Marcos , Judgment of Feb 1985 & Opinion

- The Court rejected arguments on foreign sovereign immunity.

- The principle of “command responsibility that holds a superior responsible for the actions of subordinates appears to be well accepted in the US and international law in connection with acts committed with acts committed

- The fact that any act of genocide, crime against humanity, or violation of the Geneva Conventions or of the laws or customs of war was committed by a subordinate does not relieve his superior of criminal responsibility if he know or had reason to know that the subordinate was about to comm it such acts or had done so and the superior failed to take the necessary reasonable measures to prevent such acts or punish perpetrators

- No sovereign immunity against charges of torture. US Alien Tort Statute provides a forum for claims by aliens for torture that has occurred elsewhere. It requires a claim by an alien, a tort and a violation of international law. The prohibition against official torture carries with it the force of jus cogens norm which enjoys the highest status in international law. A ll states believe that torture is wrong, all that engage in torture deny it, and no state claims a sovereign right to torture its own citizens. Under international law, any state that engages in official torture violates jus cogens. Note that RP filed a br ief stating that its foreign relations with the US would not be adversely affected if claims against Marcos were litigated in the US.

Clinton v Jones (520 US 681)

- The principal rationale for affording Presidents immunity from damages actions based on thei r official acts is to enable them to

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perform their designated functions effectively without fear that a particular decision may give rise to personal liability.

- Jurisprudence provides no support for an immunity for unofficial conduct. Moreover, immunities for acts clearly within official capacity are grounded in the nature of the function performed, not the identity of the actor who performed it.

- The separation - of - powers doctrine does not require federal courts to stay all private actions against the Presid ent until he leaves office. Even accepting the unique importance of the Presidency in the constitutional scheme, it does not follow that that doctrine would be violated by allowing this action to proceed.

Belgium v Senegal (ICJ 2012)

- The Court recalls th at Senegal’s failure to adopt until 2007 the legislative measures necessary to institute proceedings on the basis of universal jurisdiction delayed the implementation of its other obligations under the Convention. The Court further recalls that Senegal was in breach of its obligation under Article 6, paragraph 2, of the Convention to make a preliminary inquiry into the crimes of torture alleged to have been committed by Mr. Habré, as well as of the obligation under Article 7, paragraph 1, to submit the cas e to its competent authorities for the purpose of prosecution. The purpose of these treaty provisions is to prevent alleged perpetrators of acts of torture from going unpunished, by ensuring that they cannot find refuge in any State party. The State in who se territory the suspect is present does indeed have the option of extraditing him to a country which has made such a request, but on the condition that it is to a State which has jurisdiction in some capacity, pursuant to Article 5 of the Convention, to p rosecute and try him.

- The Court emphasizes that, in failing to comply with its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, Senegal has engaged its international responsibility. Consequently, Senegal is required to cease this continuing wrongful act, in accordance with general international law on the responsibility of States for internationally wrongful acts. Senegal must therefore take, without further delay, the necessary measures to submit the case to its comp etent authorities for the purpose of prosecution, if it does not extradite Mr. Habré.

purpose of prosecution, if it does not extradite Mr. Habré. Tacuboy 33 Kidnapping/Extradition Cases US v

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Kidnapping/Extradition Cases

US v Purganan (GR No 148571)

- Extradition; treaty. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes & the evidence that may be adduced during the hearing of the petition, complies with the Extraditio n Treaty and Law; & whether the person sought is extraditable.

- The proceedings are intended merely to assist the requesting state in bringing the accused or the fugitive who has illegally escaped back to its territory, so that the criminal process may pro ceed therein. By entering into an extradition treaty, RP is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

- Extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accu sed are necessarily available. It is more akin, if at all, to a court’s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the r easonable prima facie presumption is that the person would escape again if given the opportunity. Potential extraditees do not have the right to a hearing for the issuance of a warrant of arrest nor the right to bail granted by the RTC.