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PUBLIC INTERNATIONAL LAW

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General Principles
A. International Law defined

Traditional Modern
Branch of public law w/c: Law w/c deals w/:
Regulates relations of States & of other - Conduct of States & int’l org
entities granted int’l personality. - Their relations w/ each other
*This def’n focuses on subjects w/c are entities - & their relations w/ persons, natural or
possessing: juridical
- int’l personality &
- w/ rights & obligations recognized under
international law,
As against objects w/c are persons or things in
w/c rights are held & oblig assumed by the
subjects of int’l law+

B. Basis of Int’l Law

Law of Nature School Possitivist School Ecletic or Groatian School


-natural & universal principle -Binding force of int’l law: -conforms to the dictates of
of right & wrong derived from agreement of right reason
-independent of mutual States to be bound by it. -the voluntary law may be
intercourse/ compact w/c can -int’l law is not a law of said to blend w/ the natural
be discovered & recognized subordination but law & be an expression of it
by every indiv. through the coordination -in case of conflict, the natural
use of his reason & law prevails, being the more
conscience. fundamental law

C. Public International Law distinguished from:

Private In’t Law Int’l Int’l Comity Int’l Int’l Admin. Law
Morality/Ethics Diplomacy
A. As to nature: Govern relations Rules of -objects of: Regulates
Int’l vs. of States from politeness/courtesy a) int’l policy & relations &
municipal the standpoint of observed by States b) conduct of activities of:
B. As to a. Conscience in their relations foreign affairs a)nat’l &
remedies: b. Morality w/other States b)int’l agencies
Int’l modes vs. c. Justice w/respect to
local tribunals d. Humanity their:
C. As to parties: a)material &
Int’l entities vs. b)intellectual
private persons interests
D. As to w/c have
enforcement: received int’l
Int’l sanctions recognition
vs. sheriff/
police

D. Int’l Law as true law


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Although it may not comply w/John Austin’s concept of law, i.e., enforced by sovereign
political authority, nonetheless it is still a true law

Application, enforcement, & compliance.


Absence of a central law-making authority & the jurisdictional defects,weaken the
expectation of compliance in comparison w/ the situation in the domestic plane.
These considerations are, however, balanced by the risk of political/ economic
retaliation & other sanctions such as
a. adverse public opinion
b. retorsions
c. reprisals
d. the UN machinery
e. conviction that obedience will redound to the public good

E. Relationship w/ Municipal Law (ML)

Monist Dualist
No substantial distinction between int’l law ML IL
& municipal law. - issued by a political - not imposed but
(oo eto lang to) superior for adopted by states as
observance by those a common rule of
under its authority action
- consists of - derived from such
enactments of law- sources as int’l
making authority customs, conventions
or gen. principles of
- regulates relations law
of indiv. among -relations between
themselves states & int’l persons
-violations are -redressed through
redressed through state-to-state
local judicial & transactions
administrative
processes -collective
-breaches entail indiv responsibility
responsibility

Doctrine of Incorporation Doctrine of transformation


Expressed in S2 Art2 “The Phils. Renounces Requires the enactment by the legislative body
war as an instrument of national policy, of such int’l law principles as are sought to be
adopts the generally accepted principles of part of municipal law
international law as part of the law of the land
& adheres to thepolicy of peace…”

Conflict between International Law & Municipal Law

On the domestic sphere, w/a local court International sphere, w/an int’l tribunal
deciding deciding
a) if conflict is w/Consti: International law is superior to municipal law,

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uphold Consti because int’l law provides the standard by
b) if conflict is w/statute: w/c to determine the legality of a State’s
doctrine of incorporation decrees that conduct.
rules of int’l law are given equal
standing w/, but not superior to
national legislative enactments.
A treaty may repeal a statute & a
statute may repeal a treaty; thus, the
principle of lex posterior derogate
priori, that w/c comes last in time, will
usually be upheld by the municipal
tribunal

F. Sources of Int’l Law

Domestic sphere International Plane


Constitution, legislative enactments, & case It’s complicated (hiyess!) because there is no
law (stare decisis). body likened to a nat’l legislature, no
fundamental law, & the doctrine of
precedents is not applicable.

However, most authoritative enumeration is found in Art. 38, Statute of the Int’l Court
of Justice w/c provides that the Court, whose function is to decide in accordance w/ Int’l Law
such disputes as are submitted to it, shall apply:

PRIMARY SOURCES

1. International Treaties & conventions

The Rome Statute


- Signed July 17, 1998
- Effective July 1, 2002
- Based on the principle of complementarity
- Made Philippines part of the International Criminal Court. It is a modern initiative
and rather ambitious because an individual can be tried therein and he cannot
invoke immunity.
- No Retroactivity
- Gives primacy to local courts
- No Death Penalty

2. International Customs

- Prevailing practice
- Repeated over considerable period of time
- Opinio Juris

3. General Principles of law

- Natural Law
- Observed and Organized

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 To these may be added the principle of ex aequo et bono (what is good & just),
provided that the parties to the dispute agree thereto, as provided in Art. 38 (1)
Statute of the International Court of Justice

Interpretation of Art. 38 - Although the provision is silent on the question of whether the 3
primary sources have the same hierarchic value, by practice, treaties take precedence over
customs, & customs over general principles of law, except:

The principle of jus cogens – customary int’l law w/c w/c has a status of peremptory
(absolute, uncompromising, certain) norm of int’l law.

Peremptory norm- accepted & recognized by int’l community of states as a rule from
w/c no derogation is permitted, & w/c can be modified only by a subsequent norm having the
same character.

Ex. slave trade, piracy & terrorism

SECONDARY SOURCES

1. Judicial decisions – ICJ. Whether the norm has been accepted as a rule of international
law.

2. Writings of publicists – Fair and unbiased representation of international law by


acknowledged authorities in the field.

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Subjects of International Law
A. Distinction between subject & object of international law

Subject Objects
An entity that has rights & responsibilities A person or thing in respect of w/c rights are
under int’l law; held & obligations assumed by the subject;
Can be a proper party in transactions involving Not directly governed by the rules of int’l law;
the application of the law of nations among It’s rights are received, & its responsibilities
members of the int’l community. imposed, indirectly through the
Includes: instrumentality of an int’l agency.
States, colonies, & dependencies, mandates &
trust territories, the Holy See (Vatican City),
the UN, belligerent communities, international
administrative bodies, & to a certain extent,
individuals.

B. States

Group of people living together in a fixed territory, organized for political ends under an
independent government, & capable of entering into int’l relations w/ other states.

ELEMENTS

a. People- both sexes, sufficient in number to maintain & perpetuate themselves


b. Territory- fixed portion on the earth’s surface
c. Govt- organized, w/ ctrl over & capable of maintaining law & order w/in the country
d. Sovereignty/ independence- freedom from outside ctrl in the conduct of its foreign
(&internal affairs)

Other suggested elements of a state:

a. civilization
b. recognition- wherein state acknowledges the existence of another state, gov’t, or
belligerent community & indicates its willingness to deal w/ the entity as such under
int’l law.

THEORIES ON RECOGNITION:

A. Constitutive (majority view)


- Recognition is the act w/c constitutes the entity into an int’l person.
- Recognition is compulsory & legal; may be compelled once the elements of a state
are established

B. Declarative (majority view)-

Recognition merely affirms an existing fact, like the possession by the state of
essential elements.
It’s discretionary & political

BASIC RULES ON RECOGNITION

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A. It’s a political act
B. Discretionary on the part of recognizing authority
C. Exercised by political (executive) department of state
D. Legality & wisdom- not subject to judicial review

REQUIREMENTS FOR RECOGNITION OF GOV’T

1. Gov’t is stable & effective,


2. w/no substantial resistance to its authority
3. Gov’t must show willingness & ability to discharge int’l oblig.
4. Gov’t must enjoy popular consent or approval of the people

Tobar/ Wilson Doctrine Stimson Doctrine Estrada Doctrine


Precludes recognition of any No recognition of a gov’t Since recognition has been
gov’t established by established through external construed as approval (& non-
revolutionary means until aggression recognition, disapproval) of
constitutional reorganization gov’t established through
by free election of judicial upheaval, a state may
representatives not issue a declaration giving
recognition to such gov’t, but
merely accept whatever gov’t
is in effective control w/o
raising the issue of
recognition.
Dealing or not dealing w/the
gov’t is not a judgment of
legitimacy of the said gov’t

KINDS OF RECOGNITION

De facto

-Extended by the recognizing state w/c believes that some of requirements for
recognition are absent.
-Recognition is generally provisional and limited to certain juridical relations.
-Does not bring about full diplomatic intercourse & does not give title to assets of the
state held/ situated abroad

De Jure
-Extended to gov’t fulfilling requirements for recognition
-when there’s no specific indication, recognition is generally considered de jure
-relatively permanent
-brings about full diplomatic intercourse & observance of diplomatic immunities, &
-confers title to assets abroad

EFFECTS OF RECOGNITION

-diplomatic relations
-right to sue in courts of recognizing state
-immunity from jurisdiction
-entitlement to property w/in the recognizing state

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-retroactive validation of the acts of the recognized state/govt, such as acts of state and
thus, sovereign immunity covers past, present & future acts

RECOGNITION OF BELLIGERENCY; CONDITIONS

1. Organized civil gov’t having ctrl & supervision over the armed struggle
2. Serious & widespread struggle w/uncertain outcome
3. Occupation of substantial portion of the nat’l territory
4. Willingness of rebels to observe to observe rules of war

EFFECTS OF RECOGNITION OF BELLIGERENCY

Responsibility for acts of rebels resulting in injury to nationals of the recognizing state
shall be shifted to the rebel gov’t;
Legitimate gov’t recognizing the rebels shall observe the laws of war in conducting
hostilities
Third states recognizing the belligerency shall maintain neutrality, and
Recognition is only provisional (for the duration of the armed struggle) & only for the
purpose of hostilities

CREATION OF STATES

1. Revolution
2. Unification
3. Secession
4. Assertion of independence
5. Agreement
6. Attainment of civilization

PRINCIPLE OF STATE CONTINUITY

State- continues as a juristic being notwithstanding changes in its circumstances,


provided only that such changes do not result in loss of any of its essential elements

Succession of States Succession of Governments

Consequences - Political laws are - Rights of predecessor


abrogated while municipal government are inherited by
laws remain in force successor
- Treaties are discontinued, - Where the new government
except those dealing with was organized by virtue of
local rights and duties such constitutional reform ratified in a
as those establishing plebiscite, all obligations of the
easements and servitudes predecessor are likewise
- All rights of predecessor assumed, however, where the
state are inherited but new government established
successor state can through violence, the new
assume and reject government may lawfully reject
liabilities at its discretion purely personal or political
obligations of the predecessor,
but not those obligations
contracted by it in the ordinary
course of official business.

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CLASSES OF STATES

A. INDEPENDENT

Has freedom to direct & ctrl foreign relations w/o restraint from other states. May be:

Single Composite
Single central gov’t, w/power over internal 2/ more sovereign states joined together to
& external affairs constitute 1 international person, w/c may be:
Real union Federal union
2/more states sre Combination of
merged under a 2/more states w/c
unified authority so uponmerger, cease to
that they form a be states, resulting in
single international the creation of a new
person through w/c state w/full int’l
they act as 1 entity. personality to
The sy=tates retain represent them in
their separate their external
identities, but their relations as well as a
respective certain degree of
international power over their
personalities are domestic affairs &
extinguished & their inhabitants.
blended in the new Authority over
int’l person, international affairs:
e.g., the former divided between
United Arab Republic, federal authorities &
w/Egypt & Syria. the member-states;
Authority over
external affairs:
handled solely by
federal authorities

B. DEPENDENT

An entity w/c although theoretically a state, does not have full freedom in the direction
of its external affairs, such as a protectorate (w/c is established at request of weaker state for
the protection by a strong power) or a suzerainty(result of a concession from a state to a
former colony that’s allowed to be independent subject to the retention by the former
sovereign of certain powers over the external affairs of the latter. E.g., Bulgaria & Rumania,
both suzerainties of the Sultan of Turkey by virtue of Treaty of Verlin)

C. NEUTRALIZED

Independence & integrity are guaranteed by an int’l treaty on the condition that such
state obligates itself never to take up arms against another (except self-defense), or to enter
into an int’l obli. as would indirectly involved it in war, e.g., Switzerland, Austria

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Vatican city & the Holy See
Holy See- has all constituent elements of statehood (people: less than 1000 individuals;
territory: 108.7 acres; gov’t w/the Pope as head; & independence by virtue of Lateran Treaty of
1929 w/c constituted Vatican as a territory under sovereignty of Holy See)
It has all the rights of the state, including diplomatic intercourse, immunity from foreign
jurisdiction, etc

D. Colonies & Dependencies

COLONY DEPENDENCY
Dependent political community consisting of a Territory distinct from the country in w/c
number of citizens of the same country who supreme sovereign power resides, but belongs
have migrated therefrom to inhabit another rightfully to it, &subject to laws & regulations
country but remain subj of mother state w/c sovereign may prescribe.

E. Territories under Int’l court / supervision

Non-self-governing territories placed under int’l supervision/ctrl to insure their political,


eco, soc & educ advancement.

Ex. mandates w/c are former territorial possessions of the states defeated in World War
I & placed under the control of League of Nations. Many of these mandates became trust
territories placed under the trusteeship council of the UN

F. The United Nations

1. Historical development.
2. UN charter

- Closest to Consti. Governs relations of int’l persons.


-Technically a treaty, a contract under doctrine of pacta sunct servanda although it
actually applies even to non-member states, at least in so far as “may be necessary for
maintenance of international peace & security”

Amendment:
a. 2/3 vote of GA mem & ratified by 2/3 of UN members.
b. General conference called by majority vote of GA & any 9 members of Security
Council (SC), may propose amendments by a 2/3 vote of the conference & shall take
effect when ratified by 2/3 of UN mem

Purpose: Prevention of war, maintenance of int’l peace & security, dev’t of friendly
relations among the members of int’l community, int’l cooperation, harmony of actions of
nation

3. Membership:

Classes Original or Elective


Qualification Member must be a state, peace loving, accept the obligation under the charter
and be able and willing to carry out these obligations
Admission Decision of 2/3 of those present and voting in the GA upon recommendation of
at least 9 members of the Security Council
Suspension Same vote as admission. Suspended member cannot participate in GA meetings.
Can’t be elected to or continue to serve in the Security council, Economic and

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social Council, Trusteeship council but nationals may continue the secretariat
and the ICJ although a member is still subject to discharge its obligation under
the charter. To lift the suspension, a qualified majority vote of the Security
Council is needed.
Expulsion 2/3 vote of those present and voting in GA upon recommendation of qualified
majority of SC on grounds of persistently violating principles in the charter
Withdrawal No provision on withdrawal, although there is actually no compulsion for
continued membership if the member feels constrained to withdraw due to
exceptional circumstances

4. Organs:

A. General Assembly- consists of all members of organization, each of w/c is entitled to


send not more than 5 representatives & 5 alternates. Each member only has 1 vote.

Functions:
1. Deliberative
2. Supervisory
3. Financial
4. Elective
5. Constituent

B. Security Council - key organ in maintenance of int’l peace & security.

. Functions:
1. Maintain in’t peace & security
2. Investigate disputes & call disputants to settle their differences through peaceful
means
3. Recommend methods of adjustment of disputes
4. Determine existence of threats to peace, breach of peace, acts of aggression, &
make appropriate recommendations
5. Undertake preventive & enforcement actions

Preventive action Enforcement action


Provisional measures to prevent a conflict from Deployment of air, sea, and land forces, or
worsening in the
Institution of a blockade.

Domestic jurisdiction clause - SC may take necessary steps for settlement of disputes
including preventive or enforcement action. The only limitation is that the dispute must
be international, not domestic in character.

C. Economic & Social Council

Composed of 54 members elected by GA for a 3yr term.

Shall exert efforts towards higher standards of living, conditions of economic & social
progress & dev’t, solutions of int’l economic, soc, health & related problems

D. Trusteeship Council

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Duty of assisting SC & GA in administration of Int’l Trusteeship system.

E. Secretariat

Chief administrative organ of UN. Headed by sec gen chosen by GA upon


recommendation of SC. Sec Gen- highest rep of UN & is authorized to act in its behalf; his staff
are also international civil servants, & can’t receive instructions from any gov’t or source
outside the UN. He also enjoys right of political initiative

F. Int’l Court of Justice

Principal judicial organ of UN. Composed of 15 mem, 9yr term, must be of high moral
char & possess qualify required in their respective countries for appointment to their highest
judicial offices

Jurisdiction of the Court is based on the consent of the parties in accdce w/the optional
jurisdiction clause, & the court may decide on interpretation of treaties, any question of int’l
law, the existence of facts constituting breach of int’l oblig

G. Belligerent Communities

H. International Administrative Bodies

Certain admin bodies created by agreement among states, may be vested w/ int’l
personality provided they are non-political & are autonomous & not subj to ctrl by any state
>Unlike States w/c possess gen competence, int’l org are governed by the principle of
specialty, that is, they are invested by the Stated w/c create them w/powers, the limits of
w/c are a function of common interest whose promotion those states entrust to them.

I. Individuals

- Objects, not subjects of int’l law


- Granted a certain degree of int’l personality under a number of int’l agreements like:
- UN Charter provisions, Universal Declaration of Human Rights provision on “inherent
dignity & equal & inalienable rights of all members of human family, some treaties
like Treaty of Versailles, w/c confer on individual the right to bring suit against States
before National or int’l tribunals

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Fundamental Rights of State
A. Existence & Self- preservation

The most basic & impt right. UN Charter: rt of state to individual & collective SD if an
armed attack occurs against such state, until the SC has taken measures to maintain int’l peace
& security. Needs: clear showing of grave & actual danger and must be limited by necessity

Aggression: use of armed force by a state agaist sovereignty, territorial integrity, or


political independence of another state inconsistent w/ UN charter. The 1 st use of armed force
by a state in contravention of UN charter is prima facie evidence of an act of aggression.

B. Right to sovereignty & independence

Sovereignty Independence
Totality of powers, legal competence & Freedom to conduct foregn relations w/o
privileges of a state arising from customary outside ctrl.
int’l law, & not dependent on the consent of Rt to independence- natural aspiration of
another state people but not an absolute freedom

Intervention- state interferes in the domestic or foreign affairs of another state through
use of force/ threat of force

C. Right of Equality

What is really guaranteed is legal or sovereign equality. “equal in law, rights of


sovereignty, personality, territorial integrity & political independence respected by others”.

Act of State Doctrine

Every sovereign state is bound to respect the independence of every other state, & the
courts of 1 country will not sit in judgment on the acts of the gov’t of another, done w/in its
territory. Redress of grievances by reason of such acts must be obtained through the means
open to be availed of by sovereign powers as between themselves

Doctrine of State Immunity


As a consequence of independence, territorial supremacy & equality, a state enjoys
immunity from the exercise of jurisdiction (legislative, executive or judicial) by another state,
unless it has given consent, waived its immunity, or voluntarily submitted to the jurisdication of
the court concerned. Neither may its public property be attached or taxed, nor its public
vessels be boarded, arrested or sued.
Based on the principle of par in parem non habet imperium.

Restrictive application of the doctrine


This immunity however is recognized only w/respect to sovereign or public acts of the
state, & cannot be invoked w/ respect to private or proprietary acts.
Immunity extends to diplomatic personnel to the UN, its organs, & specialized agencies,
& to int’l organizations.

Waiver of immunity
1. When state gives consent at the time the proceeding is instituted

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2. When it takes steps relating to the merits of the case before invoking immunity
3. When, by treaty or contract, it had previously given consent
4. When by law or regulation in force at the time the complaint arose, it has indicated
that it will consent to the institution of the proceedings

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Right To Territorial Integrity &
Jurisdiction
A. Territory

Fixed portion on earth’s surface on w/c the State settles & over w/c it has supreme
authority. The components of the territory of the State are the terrestrial, fluvial, maritime and
aerial domains.

B. Land Territory
Modes of acquisition

Discovery & Prescription Cession conquest accretion


occupation
Territory not Acquired through May be No longer Increase in land
belonging to any continuous & voluntary recognized mode, area of State
State or terria uninterrupted through a treaty as UN charter either through
nullius is placed possession over a of sale, e.g., the prohibits use of natural means
under sovereignty long period of sale of Alaska by force or threat or artificially
of the claiming time, just like in Russia to the US, against territorial through human
state. “Discovery” civil law. In or through a integrity or labor
alone, merely international law treaty of political
creates an however, there is donation. independence of
inchoate right; no rule of thumb May also be any State.
Must be followed as to the length involuntary or [Stimson
w/in a reasonable of time needed. forced Doctrine]
time by effective Grotius doctrine
occupation & of immemorial
administration. prescription –
speaks of
uninterrupted
possession going
beyond memory.

C. Maritime Territory

1. Internal (national) waters


- Bodies of water w/in the land mass such as rivers, lakes canals, gulfs, bays &
straits
- Rivers- may be nat’l, boundary, or international
Thalweg doctrine- for boundary rivers, in the absence of an agreement between the
riparian States, the boundary line is laid on the middle of the main navigable channel
Middle of the bridge doctrine- if there’s a bridge over a boundary river, boundary line is
the middle or center of the bridge

2. Archipelagic waters

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Vessels may be allowed innocent passage w/in archipelagic waters, but this rt may be
suspended after publication, in the interest of int’l security. The coastal state may also
designate archipelagic sea lanes for continuous, unobstructed transit of vessels.

3. Territorial Sea

Belt of sea between coast & internal waters of coastal state on one hand & high seas on
the other, extending up to 12 nautical miles from low watermark or in the case of archipelagic
states, from baselines

4. Contiguous Zone

Extends up to 12 nautical miles from territorial sea. Technically not part of territory of
state. Coastal state may exercise limited jurisdiction over contiguous zone, to prevent
infringement of customs, fiscal, immigration or sanitary laws.

5. Exclusive Economic Zone

Extends up to 200 nautical miles from low watermark or baselines, as the case may be.

6. Continental Shelf

Sea-bed & subsoil of submarine areas that extend beyond its territorial sea throughout
the natural prolongation of its land territory to the outer edge of the continental margin does
not extend to that distance. The coastal state also enjoys the right of exploitation of oil deposits
& other resources in the continental shelf.

7. High seas

Treated as res communes or res nullius & thus, are not territory of any particular State.

The traditional view is freedom of high seas

Freedom of navigation refers to the right to sail ships on the high seas, subject only to
int’l law & laws of the flag state.

Settlement of disputes arising from the UN convention on the Law of the Sea
“Failing a bilateral settlement, Art. 286 provides that any dispute shall be submitted for
compulsory settlement to 1 of the tribunals having jurisdiction.”

D. Air Territory

Air space above the land & waters of the state

In the International Convention on Civil Aviation (Chicago convention)

The contracting parties recognize that every State has complete & exclusive sovereignty
over the airspace above its territory” but does NOT include outer space as it is considered as res
communes. Other States have no rt of innocent passage over the air territory of another State.

5 Freedoms (of air transportation for scheduled International services


1. To fly across the territory w/o landing
2. Land for non-traffic purposes
3. Land to put down passenger, mail, mail, cargo of flag territory
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4. Land to take passenger, mail, mail, cargo of flag territory
5. To put down passenger, mail, & cargo from these territories

Outer space
Rules governing high seas apply also to outer space, w/c is considered as res communes.
Under customary int;l law, States have right to launch satellites in orbit over the territorial air
space of other states. Pursuant to Outer Space Treaty of 1967, “outer space is free for
exploration & use by all states; it cannot be annexed by any State; & may be used exclusively
for peaceful purposes”

Theories of where outer space begins


-lowest altitude for artificial earth satellites to orbit w/o being destroyed by friction
(90kms above earth)
-theoretical limits of air flights (84kms)
-functional approach, i.e.. that the rules shall not depend on the boundaries set but on
the nature of the activity undertaken
E. Jurisdiction

Power/authority exercised by State over land, persons, prop, transactions & events.

Bases of Jurisdiction

Territorial Nationality Protective Universality Passive


principle principle principle personality
State may State- w/juris State- w/juris State- State-
exercise juris only over its nationals over acts w/jurisdiction jurisdiction over
w/in its territory. anywhere in the committed over offenses crimes against
Exceptionally, it world, based on abroad (by considered as its own nationals
may have juris the theory that a nationals or universal crimes even if
over persons & national is foreigners) w/c regardless of committed
acts done outside entitled to the are prejudicial where committed outside its
its territory protection of the to its nat’l & who territory. May be
depending on the state wherever security or vital committed them. resorted to if
kind of juris it he may be. interests. Univ.crimes- other principles
invokes. Applies to civil (see Art2 RPC) threaten the int’l are not
No territorial matters. (art15 community as a applicable.
limit over civil NCC) not to crim whole & are
matters, but the offenses considered crim
state, as a GR, offenses in all
has criminal juris countries,
only over e.g. piracy, jure
offenses gentium,
committed w/in genocide, white
its territory slave trade, hi-
except over jacking,
a. Continuing terrorism, war
offenses crimes.
b. acts prejudicial
to the national
security of state
c. universal
crimes
d. offenses

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covered by
special
agreement
(although this is
now obsolete)

Exceptions from jurisdiction:


a. doctrine of state immunity
b. acts of state doctrine
c. diplomatic immunity
d. immunity of the UN, its organs, specialized agencies, other int’l org & its officers
e. foreign merchant vessels exercising the rt of innocent passage* or arrival under stress**
 navigation through the territorial sea of the state for purpose of traversing that sea
w/o entering internal waters, or of proceeding to internal waters, or making for the
high seas from internal waters, as long as it is not prejudicial to the peace, good
order or security of the coastal state.
 involuntary entrance, may be due to lack of provisions, unseaworthiness of vessel,
inclement weather or other force majeure such as pirate pursuit

f. foreign armies passing through or stationed in the territory w/ permission from state
g. warships & other public vessels of another state operated for non-commercial purposes.

They are generally immune from local jurisdiction under the fiction that they are floating
territory of the flag state. Their crew mem are immune from jurisdiction when onshore duty but
this immunity will not apply if the crew members violate local laws while on furlough or off-
duty

Jurisdiction over maritime territory

a. over internal waters

Same juris as over the land area, since internal waters are deemed assimilated in land
mass. In case of foreign merchant vessels docked in a local port or bay, the coastal State
exercises jurisdiction in civil matters, but crim juris is determined accdg to the:

I. English Rule
Coastal state shall have jurisdiction over all offenses committed on board vessel, except
those w/c do not compromise the peace of the port

II. French rule


Flag state w/juris over all offenses committed on board the vessel, except those which
compromise the peace of the port

b. over archipelagic waters

Same rule as in internal waters, save for innocent passage of merchant vessels through
archipelagic sea lanes

c. over territorial sea

Crim juris over foreign merchant vessels shall be determined by application of either the
English rule or French rule.

18 Loyola.Reyes.Vibandor.
Innocent passage & involuntary entrance are recognized exceptions, provided that in case of
involuntary entrance, the distress on the vessels must be real.

d. over contiguous zone

Coastal State may exercise ctrl necessary to prevent infringement of its customs, fiscal,
immigration & sanitary regulations, & punish the said infringement

e. over exclusive economic zone

Coastal State has sovereign rts over EEZ for exploring & exploiting, conserving &
managing the natural resources, whether living or non-living, of the seabed, subsoil, &
superjacent waters, as well as production of energy from water, current & wind. Other States
shall have freedom of navigation & over-flight, to lay submarine cables & pipes, etc.

f. over continental shelf

State enjoys right of exploitation of oil deposits & other resources in such

g. over high seas

Juris may be exercised by the State on the high seas over the ff:
1. Its vessels
2. pirates
3. those engaged in illicit traffic
4. in the exercise of the rt to visit & search
5. hot pursuit doctrine

Jurisdiction over other territories (extra-territorial jurisdiction)


A state may, by virtue of customary or conventional law, extend its jurisdiction to
territory not w/in its sovereignty in the ff cases:
a. assertion of personal juris
b. through relations w/other states
c. consequence of waiver of jurisdiction
d. through principle of exterritoriality
e. through enjoyment of easements & servitudes

Rome Statute of the Int’l Crim Court (ICC)

-Adopted in July ’98 by a conference of states in rome


-Court comes into existence once 60 States have ratified the statute
-Phils signed ICC on 28 Dec 2000
-As of 1-4-00, 124 countries signed the statute although only 25 have ratified the same.
-Jurisdiction of the court: limited to most serious crimes of concern to the international
community as a whole.
: genocide, crimes angst humanity, war crimes, crimes of aggression

19 Loyola.Reyes.Vibandor.
Right of Legation
A. Right of legation

A.k.a. “right of diplomatic intercourse”. This refers to the right of State to send & rcv
diplomatic missions, w/c enables the States to carry on friendly intercourse. It is not a natural
or inherent right, but exists only by common consent. No legal liability is incurred by the state
for refusing to send or recv diplomatic rep. Governed by Vienna Convention on Diplomatic
Relations

Agents of diplomatic intercourse


a. Head of state
b. Foreign office

Establishment of Resident Missions


States carry on diplomatic intercourse through permanent missions established in capitals of
other states. Mission is composed of:
a. Head of mission
-ambassadors/ nuncios, envoys/ministers/internuncios, charges d’affaires
b. Diplomatic staff
c. Administrative & technical staff
d. Service staff
-engaged in the domestic services of the mission

Diplomatic corps
Doyen or head of this body- Papal Nuncio or oldest ambassador, or in absence of amb, the
oldest minister plenipotentiary

Appointment of envoys
In Phils., it is the President who appoints, sends & instructs the diplomatic & consular
representatives, & his prerogative to determine the assignment of country’s diplomatic rep
can’t be questioned

Functions & duties


a. Representing the sending state in the rcving
b. Protecting in the receiving state the interests of the sending state & its nationals, w/in
the limits allowed by int’l law
c. Negotiating w/the gov’t of the rcving state
d. Ascertaining by all lawful means the conditions in the rcving state & reporting these to
the sending state
e. Promoting friendly relations bet.the sending state & rcvng state & developing their eco,
cultural & scientific rel

Diplomatic immunities & privileges


a. Personal inviolability
b. Inviolability of premises & archives
c. Rt of official communication
d. Immunity from local juris
e. Exemption from taxes & customs duties
f. Other privileges w/c include the freedom of mvmt & travel in the territory of the
receiving state; exemtion from all personal services & military obli

20 Loyola.Reyes.Vibandor.
Duration of immunities & privileges
Enjoyed from the moment he enters the territory of rcvng state & shall cease only the moment
he leaves the country, or on expiry of a reasonable time in w/c to do so; although w/respect to
official acts, immunity shall continue indefinitely.
Available even in transitu when traveling through a 3rd state on the way to or from the receiving
state

Waiver of Immunities
made only by the gov’t of sending state if it concerns the immunities of the head of mission; in
other cases, the waiver may be made by either the govt or by the chief mission. Waiver of this
privilege does not include waiver of immunity in respect of execution of judgment; a separate
waiver for the latter is necessary

Termination of Diplomatic mission


Death, resignation, removal or abolition of office, recall by sending state, dismissal by rcvng
state, war between rcvng & sending state, or extinction of the state

B. Consular relations
Consuls- state agents residing abroad for various purposes but mainly in the interest of
commerce & navigation
KINDS OF CONSULS:
a. Consules missi-
Professional & career consuls, & nationals of appointing state
b. Consules electi-
Selected by appointing state either from its own citizens or from among nationals abroad

RANKS
a. Consul general
b. Consul
c. Vice consul
d. Consular agent

APPOINTMENT
Letters patent
Exequatur

FUNCTIONS
Commerce & navigation, issuance of visa, etc

IMMUNITIES & PRIVILEGES


 Freedom of communication in cipher or otherwise
 Inviolability of archives but not of the premises where legal processes may be served
& arrests made
 Exempt from localjurisdiction for offenses committed in the discharge of official
functions
 Exempt from testifying on official communications or on matters pertaining to
consular functions
 Exempt from taxes, customs duties, military/jury service
 May display their nat’l flag in the consulate

TERMINATION OF CONSULAR MISSION


Withdrawal of exequatur; extinction of state; war

21 Loyola.Reyes.Vibandor.
Treaties

Treaty acc. to the 1969 Vienna Convention on the Law of Treaties - an international
agreement concluded bet States in written form and governed by international law, whether
embodied in a single instrument or in two or more instruments, and whatever its particular
designation.

Other names for international agreements: convention, pact, protocol, agreement,


arrangement, accord, final act, general act, exchange of notes.

Municipal Law concept: executive agreement is not a treaty (Commish of Customs v. Eastern
Sea Trading). International law standpoint: equally binding as treaties.

Form.
Art. 2 of the Vienna Convention: treaties should be in writing.
Art. 3: an unwritten treaty does not affect its legal force.
1969 Vienna Convention: only treaties executed bet States
1986 Vienna Convention on Treaties for Internatl Orgs: treaties bet States and Intl Orgs

Requisites for validity.


a. Treaty-making capacity
b. Competence of the rep/organ concluding the treaty
c. Parties must freely give consent
d. Object and subject matter must be lawful
e. Ratification in accordance with constitutional processes of the parties concerned

Doctrine of Unequal Treaties. Treaties which have been imposed thru coercion or duress
of an unequal character is VOID.

Doctrine of Jus Cogens. Customary international law has the status of a peremptory norm
of international law, accepted and recognized by the international community of states as a
rule from which no derogation is permitted. Treaty that contravenes jus cogens norms are
invalid.

Treaties and Executive Agreements. Treaties require Senate concurrence for validity. They
refer to a) basic political issue, b) change in national policy, c) permanent international
arrangements. Executive Agreements do not require concurrence and refer to a) adjustment of
detail carrying out well-established national policies and b) temporary arrangements.
a. Bayan v. Exec Sec. We cannot require the US to submit the V.F.A. to the US Senate for
concurrence. It is inconsequential if US treats the VFA as a mere exec agreement bec.
under international law, executive agreements are just as binding as treaties.
b. Memo Circ No. 89. W/N an international agreement is purely an executive agreement –
matter referred to DFA Secretary who shall make the appropriate recommendation to
the President.
c. Exchange of Notes. A record of a routine agreement similar to the private law contract.
Agreement consists of the exchange of two documents, each of them signed by the rep
of the other. Signatories are either government Ministers, diplomats or department
heads. This technique is resorted to bec of its speedy procedure and to avoid process of
legislative approval.

22 Loyola.Reyes.Vibandor.
2. Treaty-making Process.
a. Negotiation – reps usually have the credentials known as pleine pouvoirs (full powers)
emanating from competent authority that designates a person to represent. Representative
can also either be a) the Head of State, b) Head of Government, c) Foreign Minister, d) head
of diplomatic missions, or e) rep accredited to an international conference or organization.
b. Signing of the treaty. Principle of alternat – order of naming the plenipotentiary is varied.
Each party is named and its plenipotentiary signs muna his own copy.
c. Ratification. State expresses its willingness to be bound by the treaty thru confirmation.
Our President ratifies the treaty, subject to the concurrence of 2/3 of all the members of
the Senate. President is vested with authority to a) deal with foreign states, b) extend or
withhold recognition, c) maintain diplomatic relations, d) enter into treaties, and otherwise
e) transact the business of foreign relations. Kahit signed na by the rep, President still has
the discretion of w/n to ratify a treaty. Without his signature, the Exec Sec or DFA Sec may
not be compelled by mandamus to transmit copy of the treaty for Senate concurrence.
d. Entry into force. In the absence of a provision that states when it shall take force, the treaty
enters into force as soon as the consent of all parties to bound is established.

Accession/Adhesion – non-signatory State becomes a party to a treaty upon invitation or


permission of the contracting parties.

Reservation – unilateral statement where a State purports to exclude or modify the legal
effect of certain provisions of a treaty. If the reservation is compatible with the object and
purpose of the treaty, State remains a party.

When non-signatories may be bound by a treaty. Pacta tertiis nocent nec prosunt. Treaties
cannot impose obligations upon States not parties to them. Exceptions: a) Accession/Adhesion
and b) Most Favored Nation Clause where a contracting State entitled to the clause may claim
the benefits in a separate agreement.

Pacta sunct servanda, treaties must be observed in good faith.


State may even modify local laws to make them conform to the treaty and avoid international
embarrassment. In the Philippines, treaties may be declared invalid if contrary to the
Constitution.

Rebus sic stantibus, contracting State’s obligations under a treaty terminates when a vital or
fundamental change of circumstances occurs. State is allowed to unilaterally withdraw from a
treaty because of the “disappearance of the foundation upon which it rests.” RULE DOES NOT
OPERATE AUTOMATICALLY. Requisites for valid invocation:
1) Change is so substantial that foundation of the treaty has altogether disappeared
2) Change is unforeseen or unforeseeable at the time of the perfection of the treaty
3) Change was not caused by the party invoking the doctrine
4) Doctrine is invoked within a reasonable time
5) Duration of the treaty is indefinite
6) Doctrine cannot operate retroactively, i.e. it must not adversely affect provisions
already complied with.

Interpretation of Treaties must be in good faith, in accordance with the ordinary meaning given
to the terms in their context and in light of its objects and purposes.

Amendment/Modification require the consent of all parties, but if allowed by the treaty itself,
two States may modify a provision only insofar as they are concerned.

Grounds for Termination of Treaties


23 Loyola.Reyes.Vibandor.
a) Expiration of term or Withdrawal of a party
b) Extinction of one of the parties in a bipartite treaty when the rights and obligations
under the treaty would not devolve upon the State succeeding the extinct State
c) Mutual agreement of all parties
d) Denunciation or desistance by one of the parties (Right of Denunciation)
e) Supervening impossibility of performance
f) Conclusion of a subsequent inconsistent treaty
g) Loss of the subject matter
h) Material breach or violation of the treaty
i) Rebus sic stantibus
j) Outbreak of war between the parties UNLESS the treaty precisely relates to the conduct
of war
k) Severance of diplomatic relations (only if indispensable for application)
l) Doctrine of jus cogens or the emergence of a new peremptory norm

24 Loyola.Reyes.Vibandor.
Nationality and Statelessness
Nationality. Membership in a political community with its concomitant rights and duties.

1930 Hague Convention:


1) State determines who its nationals are under its own law.
2) Any question as to w/n a person is a national of a State shall be determined in accordance
with the law of that State.

Modes of acquiring nationality


1) Birth – jus sanguinis (by blood) and jus soli (by place of birth)
2) Naturalization – thru a) marriage, b) legitimation, c) option/election, d) acquisition of
domicile, e) appointment to govt office, f) grant on application. In the Philippines,
naturalization is thru 1) judicial process, 2) legislative process, 3) election, or 4) marriage.
However, there is no obligation on the part of the State to recognize a person’s newly
acquired nationality. Municipal law may een prohibit the renunciation of one’s nationality,
i.e. the doctrine of indelible allegiance.
3) Repatriation – recovery of nationality by individuals who were natural-born citizens but
have lost their nationality. RA 8171 on repatriation of women who lost Filipino citizenship
by marriage to aliens and repat of former NB-Filipinos who lost their Filipino citizenship.
4) Subjugation
5) Cession

Loss of Nationality
1) Release e.g. German nazis
2) Deprivation e.g. Filipinos entering into military service of another State
3) Renunciation e.g. C.A. No. 63
4) Substitution, when former nationality is ipso facto lost by naturalization abroad.

Multiple Nationality – more than one nationality because of concurrent application of the
municipal law of two or more States. In the Philippines, dual allegiance is inimical to national
interest. Sec. 5, Art. IV.

Solutions to multiple nationality in the 1930 Hague Convention on the Conflict of Nationality
Laws
a) Person may be regarded as its national by each of the States
b) In a third State, a person shall be treated as if he only had one nationality. Principle of
effective nationality: either where he habitually and principally resides or where he
appears in fact to be most closely connected.
c) Person may renounce one of them with the permission of the renounced State.
Permission shall not be refused if person has habitual residence abroad.

Statelessness - status of having no nationality as a consequence of being born without it, or as


a result of deprivation or loss of nationality

1954 Convention Relating to the Status of Stateless Persons


Stateless Persons are granted, for as long as it is favorable to that accorded to the State’s
nationals:
a) Freedom to practice their religion
b) Access to the courts of law
c) Rationing of products in short supply

25 Loyola.Reyes.Vibandor.
d) Elementary education
e) Public relief and assistance
f) Labor legislation and social security
Also accorded treatment relative to
a) Acquisition of movable and immovable property
b) Right of association in non-poli and non-profit associations and trade unions
c) Gainful employment and practice of liberal professions
d) Housing and public education other that elementary education
e) Freedom of movement

26 Loyola.Reyes.Vibandor.
Treatment of Aliens
General Rule, no State is under obligation to admit aliens (flowing from its right of existence
and as an attribute of sovereignty). State has the power to regulate the entry and stay of aliens.

Expulsion or deportation predicated on the ground that 1) the stay of the alien is a menace to
the security of the State, 2) his entry was illegal, 3) permission to stay has expired, or 4) he has
violated any limitation or condition prescribed for his admission and continued stay.

Reconduction is the forcible conveying of aliens back to their home State. Destitute aliens,
vagabonds, aliens without docs, alien criminals, etc may be reconducted to the frontier without
any formalities.

Doctrine of State Responsibility. State is under obligation to make reparations to another State
for the failure to fulfill its primary obligation to afford, in accordance with international law, the
proper protection due to the alien national of the latter State. State may also be held liable for
injuries and damages sustained by the alien while in the territory of the State if:
1) The act or omission constitutes an international delinquency – amounting to an
outrage, to bad faith, willfull neglect of duty or insufficiency of government action*
2) The act or omission is directly or indirectly imputable to the State – State does not
make reasonable efforts to prevent injury, or having done so unsuccessfully, fails to
repair such injury.
a. Acts of Government Officials – acts of primary agents of the State give rise to
direct state responsibility. If officer acts beyond his authority, it is an act of a
private individual.
b. Acts of private individuals – must be shown that there was an actual or tacit
complicity of the government in the act, either by directly approving it or in the
patent negligence in taking measures to prevent injury. Claimant has the burden
of proving negligence.
3) Injury to the claimant State indirectly because of damage to its national

*International Standard of Justice – standard of the “reasonable State”


Doctrine of Equality of Treatment – laws are applicable not only to aliens but to nationals as
well

Enforcement of Alien’s Claim


1) Exhaustion of local remedies – requirement may be dispensed with if there are no
remedies to exhaust, the courts are corrupt, there is no adequate machinery for the
administration of justice, or the international delinquency results from an “act of State”.
a. Calvo Clause – stipulation by which an alien waives or restricts his right to appeal
to his own state and agrees to limit himself to the remedies available under local
laws.
2) Resort to diplomatic protection – after exhaustion, alien must avail of assistance of his
state
a. Tie of nationality must exist from the time of injury until the time claim is finally
settled.
b. UN may file a diplomatic claim on behalf of its officials

Modes of Enforcement of Claims


Negotiation, or if this fails, arbitration or judicial settlement.

27 Loyola.Reyes.Vibandor.
When responsibility of State is established, he must make reparation thru restitution,
satisfaction, compensation, or all three of these together.

Extradition is the surrender of a person by one state to another state where he is wanted for
prosecution or, if already convicted, for punishment. Surrender is made at the request of the
latter state on the basis of an extradition treaty. Deportation is the expulsion of an alien who is
considered undesirable by the local state. Deportation is the unilateral act of the local state and
is made in its own interests.

In the absence of an extradition treaty, the local state may grant asylum to the fugitive. If
surrender is made, asylum is merely a gesture of comity.

Fundamental principles of Extraditon


a) Based on consent – in a treaty or as an act of goodwill
b) Principle of speciality – extradited fugitive may be tried only for the crime specified in
the request for extradition and crime is included in the list of offenses in the extradit
treaty
 “Non-list” type of extradition treaties – offenses punishable under both states by
imprisonment of one year or more are deemed included in the list of offenses.
c) Any person may be extradited – whether a national of the requesting state or the state
of refuge
d) Political and religious offenders are generally not subject to extradition
 Political – 2 or more parties in the state, each seeking to impose the government
of their own choice on the other
 Attentat clause – the murder of the head of state or any member of his family is
not a political offense. Neither is genocide.
e) Offense must have been committed within the territory or against the interest of the
demanding state
f) Act for which the extradition is sought must be punishable in both the requesting and
requested states (The Rule of Double Criminality)

Procedure for Extradition


2) JUDICIAL INVESTIGATION
1) REQUEST State of refuge to conduct investigation to
Made thru diplomatic
Accompanied with necessary ascertain if a) crime is covered by the treaty,
channels to the state of refuge
papers to determine identity of and b) there is a prima facie case against the
the wanted person fugitive according to its own laws

Government of Hongkong v. Olalia – constitutional right to bail


now applies to extradition proceedings. The worth of the 3) WARRANT OF SURRENDER DRAWN
individual person and the sanctity of human rights is given Fugitive Is delivered to the state of refuge
primacy. Both deportation and extradition are administrative
proceedings where the innocence or guilt of the detainee is not in issue.

Standard in granting bail – “clear and convincing evidence” that he is not a flight risk and will
abide with all the orders and processes of the extradition court.

Abduction of the fugitive in the state of refuge is not allowed, as it constitutes a violation of the
territorial integrity of the state of refuge. If abduction is effected with the help of the nationals
of the state of refuge, the state of refuge cannot later demand to return of the fugitive.
Savarkar case.

28 Loyola.Reyes.Vibandor.
Extradition treaties of the Philippines
1976 – Indonesia
1988 – Australia
1989 – Canada
1989 – Switzerland
1990 – Micronesia

Letters Rogatory – formal communication from a court in which an action is pending, to a


foreign court, requesting that the testimony of a witness residing in the foreign jurisdiction be
taken under the direction of the court, addressed and transmitted to the court making the
request. Parang international bonggang deposition! Sec. 12, Rule 24.

Asylum – the power of the state to allow an alien who has sought refuge from prosecution or
persecution to remain within the territory and under its protection. HAS NEVER BEEN
RECOGNIZED AS A PRINCIPLE OF INTERNATIONAL LAW.

Principles of Asylum
1) Territorial – exists only when stipulated in a treaty or justified by established usage.
Depends on the liberal attitude of the receiving state, on the ground of “territorial
supremacy”
2) Diplomatic – granted within “narrowest limits” or when life or liberty of person is
threatened by imminent violence

In the Philippines, diplomatic asylum cannot be granted EXCEPT to members of the official and
personal household of diplomatic representatives. Refuge may be granted however, to
fugitives whose lives are in imminent danger from mob violence (humanitarian grounds)

Refugees
Any person who is outside the country of his nationality, or if he has no nationality, the country
of his former habitual residence, due to a well-founded fear of prosecution(?? Parang typo) by
reason of his race, religion, nationality, political opinion. Because of such fear, he is unable or
unwilling to avail of the protection of his government or his former habitual residence.

Elements:
1) Outside the country of his nationality OR if stateless, outside habitual residence
2) Lacks national protection
3) Fears persecution

Refugee is de jure/de facto a stateless individual.


Refugee Convention of 1951 does not deal with admission but with non-foulement: no
contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom is threatened.

29 Loyola.Reyes.Vibandor.
Settlement of Disputes
International dispute – actual disagreement between States regarding the conduct to be taken
by one of them for the protection or vindication of the interests of the other. A situation is the
initial stage of a dispute.

A. Pacific or amicable modes – (art. 3 of UN charter) Parties to any dispute, the


continuance of which is likely to endanger the maintenance of international peace and
security, shall first of all seek a solution by:
1. Negotiation – states settle their differences through an exchange of views between
diplomatic agencies
2. Enquiry – Ascertainment of the pertinent facts wand issues in a dispute
3. Tender of good offices – where a third party either alone or with others offers to
help in the settlement of a dispute and accepted.
4. Mediation – A third party offers to help with a solution usually based on a
compromise. Offers a solution not merely bring the parties together as in good
offices.
5. Conciliation – Active participation of a3rd party whose services are solicited by the
disputants in the effort to settle the conflict but the conciliator’s recommendations
are not binding.
6. Arbitration – Solution of a dispute by an impartial third party usually a tribunal
created by the parties themselves under a charter known as a compromis.
7. Judicial settlement - Similar to arbitration in the nature of the proceedings and in
the binding character of the reward.
Judicial Settlement Arbitration

Judicial body is pre-existing Ad hoc

Jurisdiction is usually compulsory and Not so


law applied is independent of the will of
the parties
Lodged in the ICJ Any 3rd party

8. Resort to regional agencies or arrangements – parties may, on their own volition, or


at the instance of the organization itself, assume the obligation of settling the
dispute
9. Or other peaceful means of their own choice

B. Hostile Methods

1. Severance of diplomatic relations


2. Retorsion – unfriendly by lawful coercive acts done in retaliation for unfair
treatment and acts of discrimination of another state ( the levy of high
discriminatory tariffs on goods)
3. Reprisal – unfriendly and unlawful acts in retaliation for the reciprocal unlawful acts
of another state. Reprisal may take the form of
a. Freezing of the assets of the nationals of the other state
b. Embargo – forcible detention or rsequestration of the vessels and other property
of the offending state

30 Loyola.Reyes.Vibandor.
c. Pacific Blockade – prevention of entry to or exit from the ports of the offending
state by means of communication and transportation
d. Non-intercourse – (refraining to engage in coitus hehehe joke lang) suspension
of all intercourse with the offending state particularly in matters of trade and
commerce
e. Boycott – (less than 30% of the students in a class attended joke lang ulit) –
concerted suspension of commercial relations with the offending state with
particular reference to a refusal to purchase goods

C. Role of the United nations – when none of the above-mentioned methods succeeds in
settling the dispute, the Un may be asked or may decide on its own authority to take a
hand in the settlement. Addressed to the Security Council, but may be taken over by the
General Assembly under certain conditions.

1. Security Council- jurisdiction to intervene in all disputes affecting:


a. International peace and security;
b. All disputed, which although coming under the domestic jurisdiaciton clause have
been submitted to it by the parties for settlement
 May be brought to Security Council itself, General Assembly, Sectretary General,
any member of the UN or any party to the dispute.

i. Security council will recommend appropriate measures considering any


amicable measures already adopted by the parties or that the dispute be
referred to the ICJ
ii. If unsuccessful, Security Council itself may recommend such terms of
settlement as it may deem appropriate
iii. If rejected, the Security Council may take:
a. Preventive Action
b. Enforcement action
2. General Assembly – if the Security Council, because of lack of unanimity, fails to exercise
its primary responsibility to maintain peace and security, the General Assembly shall
consider the matter immediately, with a view to making recommendations to the
members for collective measure, including the use of armed forces.

31 Loyola.Reyes.Vibandor.
War and Neutrality

War- the contention between two states, through their armed forces for the purpose of
overpowering the other and imposing such conditions of peace as the victor pleases. War does
not mean the mere employment of force.

If a nation declares war against another, was exists, though no force has yet been used.
On the other hand, in case of reprisal, force may already be used but no state of war may yet
exist.

1. Outlawry of War – condemnation of war on an international scale

a. Covenant of the League of the Nations – provided conditions for the right to go to
war
b. Kellog- Briand Pact of 1902 – General Treaty for the Renunciation of War, ratified by
62 states which forbade war as an instrument of national policy.
c. Charter of UN – Article 2 prohibits the threat or use of force against the territorial
integrity or political independence of a state.
2. Commencement of War
a. Declaration of War (Hague Convention of 1907)
b. With the rejection of an ultimatum (Hague Convention)
c. Commission of an act of force regarded by one of the belligerents as an act of war

3. Effects of Outbreak of War


a. Laws of peace cease to regulate relations between the belligerents and superseded
by the laws of war while third states are governed by the laws of neutrality in their
dealings with the belligerents
b. Diplomatic and consular relations are terminated and respective representatives are
allowed to return to their own countries
c. Treaties of a political nature are automatically cancelled except those intended to
operated during the war. Multipartite treaties dealing with technical or
administrative matters are merely suspended as between the belligerents.
d. Individuals are impressed with enemy character
Nationality Test Domiciliary test Activities test

If they are nationals of the If they are domiciled If being foreigners, they
other belligerent,wherever aliens in the territory of participate in the
they may be the other belligerent on hostilities in favor of the
the assumption that they other belligerent
contribute to its economic
resources
e. Corporations and other juridical persons are considered enemies where the
controlling stockholders are national of the other belligerent or if incorporated in
the territory or under the laws of the other belligerent, and may be not be allowed
to continue operations.
f. Enemy public property found in the territory of the other belligerent at the outbreak
of the war is subject to confiscation, private property is subject to requisition.

32 Loyola.Reyes.Vibandor.
4. Participants in War
a. Combatants – those who engage directly in the hostilities
1. Non-privileged – spies, who under false pretenses try to obtain vital information
from the enemy ranks, who when caught are not considered prisoners of war
2. Privileged – when captured, enjoy the privileges of prisoners of war.
a. Regular Armed Forces
b. Ancillary services
c. Those who accompanied armed forces
d. Levees en masse
e. Franc Tireurs/guerillas
f. Officers and crew of merchant vessels who forcibly resist attack
 Rights of POW – treated humanely, no torture, allowed to communicate with
families, receive food, clothing, religious articles, etc.
b. Spies
c. Mercenaries
i. Specially recruited to fight for a particular armed conflict
ii. Takes direct part in the hostilities
iii. Motivated by desire to gain

5. Conduct of Hostilities
a. Principle of Military Necessity – Belligerent may employ any amount of force
to compel the complete submission of the enemy with the least possible loss
of lives and money
b. Principle of Humanity – Prohibits the use of any measure that is not
absolutely necessary for purposes of war
c. Principle of Chivalry – Prohibits belligerents from the employment of
perfidious or treacherous methods, such as the illegal use of Red Cross
emblems.

Belligerent occupation – temporary military occupation of the enemy-s territory during the
war. Maintains effective control and military superiority therein, being able to send in case of
attack, sufficient forces to assert its authority within a reasonable time.

1. Effects – no change in sovereignty but the exercise of the powers of sovereignty is


suspended.
2. Rights and duties of belligerent occupant
a. Re-establish or continue the processes of orderly administration including
enactment of laws
b. Adopt measures for the protection of the inhabitants
c. Requisition goods and services in non-military projects
d. Demand taxes and contributions to finance military and local administrative needs.
e. Issue legal currency
f. Use enemy property, whether public or private, but private property is subject to
indemnification or return at the end of the war.
3. Right of Angary – right of a belligerent state, in cases of extreme necessity to destroy or
use neutral property on its own or on enemy territory, or on the high seas.

Non-hostile intercourse

33 Loyola.Reyes.Vibandor.
1. Flag of truce – White in color, indicates the desire to communicate with the enemy,
agent, called parlemetaire, enjoys inviolability and is entrusted with the duty of
negotiating with the enemy.
2. Cartels – agreements to regulate intercourse during the war, usually on the exchange of
prisoners of war
3. Passport – written permission given by the belligerent government to the subject of the
enemy to travel generally in belligerent territory
4. Safe-conduct – Permission given to an enemy subject or to an enemy vessel allowing
passage between defined periods
5. Safeguard- protection granted by a commanding officer either to enemy persons or
property within his command, usually with an escort or convoy of soldiers providing the
needed protection
6. License to trade – permission given by competent authority to individuals to carry on
trade though there is a state of war

Suspension of Hostilities

1. Suspension of Terms – temporary cessation of hostilities by agreement of the local


commanders for such purposes as gathering of the wounded and burial of the dead
2. Armstice – suspension of hostilities within a certain area or in the entire region of war,
agreed upon by the belligerents, usually for the purpose of arranging the terms of peace
3. Cease-fire – unconditional stoppage of all hostilities, usually ordered by an international
body
4. Truce – Conditional cease-fire for political purposes
5. Capitulation- surrender of military forces, places, or districts, in accordance with the
rules of military honor

Termination of War
1. Simple cessation of hostilities – Principle of uti possidetis, with respect to property and
territoty possessed by the belligerents, is applied
2. Conclusion of a negotiated treaty of peace
3. Defeat of one of the belligerents followed by a dictated treaty of peace or annexation of
conquered territory

Postliminium – the revival or reversion to the old laws and sovereignty of territory which has
been under belligerent occupation once control of the belligerent occupant is lost over the
territory affected
1. Uti Possidetis – allows retention of property or territory in the belligerent’s actual
possession at the time of the cessation of hostilities.

War Crimes – acts for which soldiers or other individuals may be punished by the enemy on
capture of the offender
1. War Criminal – any person, whether a civilian or a member of the armed forces of the
state, who commits an act that violates a rule of international law governing armed
conflicts

Neutrality and Neutralization

Neutrality Neutralization

34 Loyola.Reyes.Vibandor.
Non-participation, directly or indirectly, in a The result of treaty wherein the conditions of
war between contending belligerents the status are agreed upon by the neutralized
state and other signatories.
Exists only during war- governed by law of the Exists both in times of peace and war-
nations governed by the agreement into by and
between the parties.

 Non belligerency – midway between Neutrality and Neutralization. Sometimes


been used t describe the status of a state which did not take part in military
operations but which did not observe the duties of a neutral. Not recognized in
International Law.

Rules of Neutrality – Neutrals have the right and duty to:


1. Abstain from taking part in the hostilities and from giving assistance to either
belligerent by:
- Sending of Troops
- Official grant of loans
- Carriage of Contraband

Contraband – goods, although neutral property, may be seized by a belligerent because they
are useful for war and are bound for a hostile destination. They can be:
- Absolute – guns or ammunition
- Conditional – Food and clothing
- Free- List – medicines

Doctrine of ultimate consumption – goods intended for civilian use which may ultimately find
their way to and be consumed by belligerent forces may be seized on the way

Doctrine of Infection- Innocent goods shipped with contraband may also be seized

Doctrine of Continuous voyage, Transport - Goods reloaded at an intermediate port on the


same vessel, or reloaded on another vessel or other forms of transportation may also be seized
on the basis of doctrine of ultimate consumption.

2. Prevent its territory and other resources from being used in the conduct of
hostilities. Allowing territory to be used as the base of operations

3. To acquiesence to certain restrictions and limitations which the belligerents may


find necessary to impose such as:
a. Blockade – hostile operation by means of which vessels and aircraft of one
belligerent prevent all other vessels including those of neutral states from
leaving or entering the port or coasts of the other belligerent.
b. Pacific Blockade – applied only vessels of blockaded states not to those of
other states.

4. Termination of Neutrality – terminates upon conclusion of a treaty of peace


between the belligerents, or when the neutral state itself joins the war.

35 Loyola.Reyes.Vibandor.