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REVIEWER
By
I sagani A. Cruz
Associate Justice
Supreme Court o f the Philippines
(Retired October 11, 1994)
. 1996 Edition.
4 ’I
Published by
V a M B .n w S X T M
1
FOREWORD
I sag an i A. Cruz
CONTENTS
Page
FOREWORD
VII
TABLE OK CONTENTS
Page
APPENDIX ................................................................................160
vm
Chapter 1
r e l a t io no f INTERNATION AL
AN D M U N ICIPAL LAW
The petition was denied. The Supreme Court held that the
treaty did not provide that admission to the practice of law in
Spain would entitle the petitioner to practice law in the Philip
pines. Moreover, even if it did, the treaty could not prevail as
against Article VIII, Section 13, (now Article VIII, Section 5(5))
of the Constitution which vests in the Supreme Court the power
to admit to the practice of law in the Philippines. This power
may not be abrogated by a treaty. ( In re Arturo Efren Garcia,
2SC R A 984 [1961]).
Chapter III
TH E IN T E R N A T IO N A L C O M M U N IT Y
11
12 INTERNATIONAL LAW REVIEWER
38. W h at is a confederation? *
1
There is no clear consensus on this matter. :
A lth ough Italy recognized “ the state of the Vatican
under the sovereignty o f the Supreme P on tiff” in the Lateran
Treaty o f 1928, doubt is expressed by som e ju rists as to its real
status, considering its small population and territory, the ap
parent impairment o f its independence as an enclave in Italy,
and the circum stance that its governm ent is organized more
for spiritual rather than political purposes.
Nevertheless, the Vatican City exercises certain rights
generally reserved to states, such as the right o f legation and
the right to enter into treaties, and a considerable number of
states have recognized it as a member o f the international com
m unity.
THE INTERNATIONAL COMMUNITY 17
(ion, hiding which they mny bo Imld liable In dmiiuges |,„ tUiy
injury sutioivd by stu b loioiguoiH
(Id The (lon ocide Convention condem ns Mm imi^i v.hUh
munition of national, ethnic, racial or religions gioups ns s
crime under international law mul malms Mm pui pat* ntor s
tluMvof, including individuals, subject to punishment
((>) rim T ok y o mul Nuremberg wiir crimes Mads el/
Inched direct responsibility to individuals lot offenses com
mil tod by thorn in violation of tho lawN of war,
(7) Pirates havo boon immemorinlly brandod honing
humanis generis and aro diroctly and individually punishable
for tlioir acts by whichever state may have them in custody,
(8) Certain laws of war and neutrality, such as Mm rules
on carriage o f contraband and broach of blockade, procedure
before prize courts, espionage, and treatment of the sick and
wounded and prisoners o f war, directly affect the individuals
themselves instead o f the states to which they belong.
(9) The Hague Convention of 1930 lays down specific
rules intended to prevent the anomalous condition of
statelessness, and the Covenant Relating to the Status of
Stateless Persons, adopted in 1954, grants them certain basic
rights.
(10) The doctrine of incorporation makes the law of na
tions part of the law of the state and, hence, directly applicable
to its individual inhabitants.
( k'lptOr f V
•n r U M l'fL U N A T IO N S
20
m i i n ii it 11 [ i h h in /;
BCFTHWLTBBBW
;io mti mi nati dnai . I,aw m-; vi MWMil
< ‘ »tinrj| nmy l.nhn Sli*p.q t>»t Mlft pacific Settlement of disputes
<»i, wlmn imiesstii y( |»tevnuMvoor enforcement action.
Ilnw^vm, Mm <Iinpi11.<> must lift international, Le.f it must,
iilltM l l!i“ pnm-n nf Mm world mid not lift merely an internal
dissension sui h as a civil war, Otherwise, the intervention of
i l u - ^ n u ity ( muncil would violate one of the principles of the
lim it'd Nnlions, »,<> wit, Mint it shell not intervene in any mat-
i.f i wiMiin Mm domestic jurisdiction of any state.
Tim .Security Council also approves trusteeship
iij/M*t«iimiii.q in strategic areas and perform s a number of impor-
l.unl. voting functions such as those relating to the admission
nod disnplino of members of the United Nations, the election
of the judges of the International Court of Justice and the
MerM*u,ry-('ieueral, and the amendment of the United Nations
ChmM-r. (/d.. A rts, 4, 5, 6, 24, 83, 97; I.C.J. Statute, A rt. 8).
VrV'- , *
TU K UNITKI) N ATI ONS
mio u n it i *!|> n a t i o n /!
TH E CONCEPT OF TH E S T A T E ‘ '
Chapter VI
RECOGNITION
41
42 INTERNATIONAL LAW REVI EWER
127. In g e n e r a l, w h a t a r e th e e ffe c t s o f th e r e c o g
n itio n o f a s ta te o r g o v e r n m e n t ?
T H E R IG H T O F E X IS T E N C E A N D -
S E L F -D E F E N S E
136. Is there any lim itation on the use o f force in the ex
ercise o f this right? *
49
50 INTERNATIONAL LAW REVIEWER
(e) yThe use o f armed forces of one state which are within
i^
BCFTWfLTBBSB?
LVTLKN'A'l'lON AL LA W KEV1EW1SK
(3) Such action shall not in any way affect the right of
the Security Council to take at any time such action as it
deems necessary to maintain or restore international peace and
security.
54
g m ss iv e d ev elop m en t o f their free political i/wtitutioms, &<>
c o rd in g to the particu lar circu m stan ces of each tenubory a rtf
its peop les and their v aryin g stages o f ad v a n ce m e n t/' '/L t ,
TH E R IG H T OF E Q U A L IT Y
58
'* h i , f 'J M n oi
‘ T very Am erican 'Tate ba'j the duty to reepeoi too /;ght*, oo-
joy ed by other eta tea in accordance y/ith inie/oaUonal jay/T
(.'{) Uikewine, the U odaretion of Righto and Imtl&b
ol Staten, prepared by the International UaV Cornrnmion, con
tains a provision that “ every State has the right to equality in
law with every other S tate."
T H E R IG H T OF TE RR ITOR Y
61
62 INTERNATIONAL LAW REVIEWER
A c c o r d in g to A r tic le I, S e c tio n 1, o f th e 1 9 8 7 C on
s t itu tio n :
176. W h a t is the continental shelf? Is it part of the ter rf- y*<r. t/i'’ ■
ritory o f the coastal state? * i■-■y-t ":f
1SS. W h a t is prescription?
189. W h a t is accretion?
TH E R IG H T OF J U R IS D IC T IO N
'i
197. W h a t is the extent of a state's jurisdiction over its
internal waters, like its rivers and lakes?
(ti) N iir lio lltii | m'i >ii tin i ui p m piiH y, Im lutUuit, <n I'tWiMI
IlmiH llUt) I III) lllllll'.ll I IMI INIIII, 0^01 ivllll ll II llfft'/f h ‘/
iiu m i I , waive |ui ihilii I inn
A stale limy extend Its |ili Isdh I Inn beyond II,s bonm
dm ms:
(1) Through assertion nl Its poitmnal l j<m over
its nationals shroud. [tUie n.i/ilmi ut inn mul ei IJutuMnn No. I M2).
(2) lly virtue nl its lelaUmis w llli ntlmt steles or ter
ritories, ah wlmn it establishes a i nlnnlal pi n| m l m a I a, ni a i;ou-
dominium, nr administers a Must ten lim y , >u m Copies nneniy
territory in Minn nl war,
(II) A h a cniism|uuure nl thn waiver nl |ni isdh I inn I»y the
local state over persons and things w llliln Its tm iito ry , il
lustrated by Mm foreign annv stationed iheieiii which is still
under l lm jurisdiction of Mm state Mini seel It,
(4) Through acpuisitinn nl’ ex 11 aim i II ui ial rig h ts This
practice has become discredited, hnwevei, Imnanan nl the rise
of nationalism and thn doctrine nl llm snveieign eijitfdity nl
staLes,
In this connection, e x l e n i f f o f t d n v diHers bom e\ ! i n t e r
l i t o r i u l i l y in that thn former refers tn l lm exuniptlnn nl |mi sons
and thiVigs from thn local jurisdiction on 1,1m liasls ol interna-
tional custom wlmrnaH tlm latter applies only In parsons and is
based on a treaty or convention.
(5) Through tlm uHnrciau nl cm tain lig h ts on thn npnn
sea, specifically; (a) over its own vessels, Including a lr n a ft
when flying over the open sea; (h) nvm plialeSi (c) under the
doctri ne of hoi [ ninmll, by virtue nl which Its public vessels, in
cluding aircraft, may continue tn pursue and appiabend on the
■v. THE RIGHT OF JURISDICTION 79
open sea any foreign merchant vessel which has violated its
laws, provided the pursuit is commenced while the offending
vessel is within the marginal waters or the contiguous zone of
the coastal state and such pursuit is uninterrupted; and (d) as a
belligerent in time of war, to visit and search neutral merchant
vessels. (Convention on the High Seas, signed A p ril28,1958).
(6) Through the exercise of its power to punish certain
offenses against its national interests, such as those affecting
its security or the integrity of its currency, even if the of
fenders are aliens.
w aters, resulting in the sinking of the latter whip arid the death
of several Turkish nationals. T h e L o tu s, docked at Core
stan tin ople, where its officer of the watch a t the tim e of the ac
cident, a French national, was su b seq u en tly con victed of
m an slau gh ter by the Turkish courts. France p ro tested on the
ground, am ong others, that the m atter was o u tside the
jurisdiction o f Turkey inasm uch as the collision had taken
place on the open sea. W a s this contention upheld? E x p la in .*
I hoi lull loll h miitI « 1 odll ,1m*gi von to bis official acts.
I'd 11 hi *U|»l«miinf l« paaspoi t/;
\'M I Iil ol 11•1111 ImmI MH I i<HIC|
III Tho «ipi um 01 i oilo hoolv, Ior use jn endin g ?*ecret
i oiimiimli ill loiifi
Tin*
Th, m.-s,....... . ft. u“ ' " ¥ »
» ! » ! . ' « a * p > « r ? 01 th'
li
i; - -ion. including t residence
tin* I ,nci. nf t he iu
oi mu head
,ch of the mission, and
n Li ^ rnit i i k nf tru K im rl il(l.. Aft- 20).
32).
I
1
The dip lom atic im munities and privileges are also en
joyed by the diploma tic suite or retinue, which conisists o f the
official and unofficial staffs o f the mission.
The official staff is made up of the adm inistrative and
technical personnel of the mission, including those perform ing
clerical work, and the mem ber o f their respective families. The
unofficial staff is com posed o f the household help, such as
dom estic servants, butlers, cooks, and chauffeurs em ployed by
the mission.
A s a rule, however, dom estic servants en joy immunities
and privileges only to the extent admitted by the receiving
state and insofar as they are connected with the perform ance
of their duties. (Id., Art. 37).
Y uv consul, mul
\P t'onsuhu ngunl.
T R E A T IE S
92
TUI*'.ATI UN 93
This refers to the discu ssion o f the p rov ision s o f the pro
posed treaty, undertaken by the representatives o f the con
tracting parties w ho are provid ed with creden tials known as
full p ow ers or pleins pou voirs. It is cu stom a ry for one of the
parties to subm it a d ra ft proposal which, togeth er with the
counter-proposals, becom es the basis o f the n egotiation. When
agreem ent is reached, the resultant instrum ent is ready for
signature.
They are the doctrine of pacta sunt servanda and the doc
trine of rebus sic s tantibus.
wick, 258).
(4) A state may allow any of its nationals to remain as
such even if he may have acquired another nationality, as
where he is conferred an honorary citizenship by a foreign ;
government. |
TIlIilA.TMlilNT OK AMICNfi
109
1 U) IN T K H N A T IO N A L LAW MOVIKWICR
*-<> hnv«* **-** i Mt t.i< >t ut In n« t< ( t in ,* \a,17 \n<>\a*JSa-s*) ///,*»*. ,r,
(111 im<Ii<lion of iiiidl lii i rit.nl.iv
T h n >i I h ii woulil, U h t i ^ iM:, b<* r v . j / n n i c O ronr^iy ^ ^ r. / > v
I'**1 °1 m »l«*i t i n t i o i i n I h i w i h h I run it* 1, n* A, *\i r « j c t f y , r>ti v Vr> r * > > g r ,
I l»r iii*il i u 11»<*iil ii Ii t.y ot Inn own fifab; in enforcing an
I lotiiil claim for damn gen,
29(i. W h a t , t h e n , in t h e i m p o r t u n n : o f t h e s e c o n d c o n d i
tion ?
Y es.
W h e n C o u n t F olk e B ern ad otte w as assassin ated in 1 95 0
while serving as U .N . m ediator in Palestine, th e U n ite d N a
tions w as allow ed to recover d am ages fro m Isra el. {I.C .J .
R ep o rts, 1 9 4 9 , p. 174).
L ik ew ise, u n d er th e E u r o p e a n C o n v e n tio n on H u m a n
R igh ts, the E u r o p e a n C o m m is s io n of H u m a n E ig h t s and also
con tractin g s t a t e s o th e r th a n th e h o m e s ta te of th e in ju red n a
tional m a y b r in g a lle g e d in fra c tio n s o f th e c o n v e n tio n before
the E u r o p e a n C o u r t o f H u m a n R ig h t s . (S c h w a r z e n b e r g e r , 1631
299. H o w m a y a n in te r n a tio n a l c la im fo r d a m a g e s b e e
forced ?
114 I N T E R N A T I O N A L LANS KEVIKYVtilt
V. rx x ye*xxxioe? *
.H > 1
T H IiA T M K N T OK A M K IJti
l 17
The state may still secure his surrender, but not as a mat
ter of right. In the interest of international com ity or courtesy,
the state of refuge may accede to the former’s request and sur
render the fugitive to it.
There have been instances when nationals of the state
seeking the fugitive have abducted him in the state of refuge,
as in the case of Adolf Eichmann, who was kidnaped in Argen
tina by Israeli agents and taken to Israel, where he was
subsequently executed for the murder of six million Jews in
World War II. But such acts are not allowed under interna
tional law as they constitute a Violation of. the territorial in
tegrity of the state of refuge.
It would be different, however, if the abduction or arrest
of the wanted individual is effected by or with the help of the
nationals of the state of refuge itself. Thus, in the famous
Savarkar Case, a prisoner on board a British vessel escaped in
a French port but was apprehended by the local police and
delivered back to the British authorities. When France later
demanded the prisoner’s return, it was held that Great Britain
was under no obligation to comply. (Hague Court Reports,
275).
Chapter X V I
S E T T LE M E N T OF IN TE R N A T IO N A L D ISPU TE S
•
. *: s bn* obliga tion of the M em bers o f the
if. ' *<\ *. r.s *1 .ver; tht S ecoritT Council undertakes pre^en-
• ort*rr.%r.~ a' fvk$a?♦
W A R
131
132' INTERNATIONAL LAW REVIEWER
automatic subm arine con tact mines: naval bom bardm ent in
umes of war: the exercise of the right o f capture in naval war;
me discharge of p rojectiles from balloons: the adaptation to
maritime w arfare o f the G eneva Convention of 1864 relative to
the treatment of the w oun ded in land warfare; the rights and
duties of neutrals in land warfare; and the rights and duties of
neutrals in naval warfare. ------- —
»4.i The G eneva Convention of 1925, concerning the use
of asphyxiating, poisonous and other gases and o f
bacteriological m ethods of warfare.
15) The Geneva Convention of 1929, concerning the
treatment of the sick and wounded and prisoners of war.
(6) The D eclaration of London of 1936, concerning the
use of submarines against merchant vessels.
(7) The G eneva Convention of 1949, concerning the
amelioration of the sick and wounded on land; the amelioration
of the sick and wounded, and of shipwrecked members of the
armed forces at sea; the treatment of prisoners of war; and the
protection of civilian persons in war. (Kelsen, 65-66).
They are:
' MOi.
NKUTKAIilTY
146
NEUTRALITY 147
477, Does in ter nation* I law e-JJLow 4%* y-..* *;-,***£ ryf war
supplies by the belligerents, m t;*e or<v,v*-.*y ov>«$* ef eettl'
merce, from private traders in s ^ tJ *w&*r*. *
482. W h at is prize? *
4 9 What is a blockade? *