PUBLIC INTERNATIONAL LAW

(CHAP 5-19)

No man is an island is not just a flight of rhetoric but bespeaks the urgent need for joining of hands by all the peoples of the world in the promotion of international peace and progress

Isagani A. Cruz

THE CONCEPT OF THE STATE

Generally accepted methods by which status is acquired:

Revolution

Unification

Secession

Assertion of independence

Agreement and Attainment of civilization

Principle of State Continuity

from

the moment of its creation, state continues as a juristic being notwithstanding changes in its circumstances, provided only that they do not result in loss of any of its essential elements

continuity of life of state is not impaired by changes in form of government, reduction of its population as long as substantial number of people survive, loss of part of its territory provided that remainder is still sizable

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

Extinction of State

Example:

Population may be completely wiped out

Government overthrown without being replaced

State may merge with another state

Territory dismembered or annexed by others

If federation, may be broken up or dissolved

If independent, becomes dependent

Radical impairment or actual loss of one or more of the essential elements of the state that will result in its extinction

Succession of States

question will arise in the event that a state is extinguished or is created as a result of any of the methods previously discussed

takes place when one state assumes the rights and some of the obligations of another because of certain changes in the condition of the latter

may be either universal or partial

Universal: state is annexed to another state or is totally dismembered or merges with another state to form a new state; international personality of the former state is completely absorbed by the successor

Partial: a portion of the territory of a state secedes or is ceded to another or when an independent state becomes a protectorate or a suzerainty or when a dependent state acquires full sovereignty

Consequences of State Succession

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

transferred to the successor state

usually, naturalized en masse

political laws of former sovereign are automatically abrogated and may be restored only by positive act of new sovereign

non-political laws are continued unless changed by sovereign or contrary to institutions of successor state

treaties of political or commercial nature, including extradition, are discontinued

except those dealing with local rights and duties

all rights of predecessor state are inherited by successor state

does not apply to liabilities; successor state has discretion which liabilities to assume and which to reject

Succession of Governments

one government replaces another either peacefully or by violent methods

integrity of state is not affected

rights of predecessor government are inherited in toto by successor government

where the new government was organized by virtue of a constitutional reform duly ratified in a plebiscite, the obligations of the replaced government are also completely assumed by the former

where the new government was established through violence, as by a revolution, it may lawfully reject the purely personal or political obligations of the predecessor government but no those contracted by it in the ordinary course of official business

RECOGNITION

Recognition

merely declaratory and only affirms the pre-existing fact that the entity being recognized already possesses the status of an international person

highly political and discretionary

minority view: recognition is constitutive, meaning that it is the last indispensable element that converts or constitutes the entity being recognized into an international person

may be extended by individual states or a number of them together

Philippines: President determines question of recognition, an act of state therefore not subject to judicial review

Object of Recognition

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

Recognition of state is generally irrevocable and imports recognition of its government

Recognition of government may be withdrawn and does not necessarily signify existence of state

Recognition of belligerent community does not produce same effect as recognition of state and government because rebels are accorded international personality only in connection with the hostilities they are waging

Kinds of Recognition

may be either express or implied

Express

o May be verbal or in writing

o May be extended through formal proclamation or announcement, stipulation in a treaty, letter or telegram ,or on occasion of official call or conference

Implied

o Recognizing state enters into official intercourse with the new member by exchanging diplomatic representatives, concluding bipartite treaty dealing comprehensively with relations in general, or acknowledging its flag or entering into formal relations with it

o In case of belligerent communities, recognition is implied when legitimate government blockades a port held by the former or when other states observe neutrality in the conflict

act of recognition must have clear indication of an intention:

a. to treat with the new state as such, or

b. to accept the new government as having authority to represent said state, or

c. to recognize in the case of insurgents that they are entitled to exercise belligerent rights

Recognition of States

free act by which one or more states acknowledge the existence on a definite territory of a human society politically organized, independent of any existing state, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community

Recognition of Governments

free act by which one or several states acknowledge that a person or a group of persons is capable of binding the state which they claim to represent and witness their intention to enter into relations with them

usually decided on the basis of political considerations

3 kinds of de facto government:

a. established by inhabitants who rise in revolt and depose legitimate regime

b. established in the course of war by invading forces of one belligerent in the territory of another belligerent whose government is also displaced

c. established by

inhabitants of state who secede therefrom without overthrowing its government

practice of most states now is to extend recognition to a new government only if it is shown that it has control of the administrative machinery of the state with popular acquiescence and that it is willing to comply with its international obligations

2 criterion:

a. objective test the government must be able to maintain order within the state and to repel external aggression

b. subjective test employed for purpose of justifying the withholding of recognition from a government that is politically unacceptable

De jure: government that satisfies the criteria

De facto: not yet satisfied the criteria

if no indication of kind of recognition extended, it is presumed de jure

De Jure

De Facto

Relatively permanent

Provisional

Vests title in the government to its properties abroad

Does not vest title in the government to its properties abroad

Brings about full diplomatic relations

Limited to certain juridical relations

Effects of Recognition of States and Governments

full diplomatic relations established, except de facto government

recognized state or government acquires the right to sue

in the courts of recognizing state

recognized state or government has right to the possession of properties of its predecessor in the territory of the recognizing state

all acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own court

Recognition of Belligerency

belligerency exists when inhabitants of state rise up in arms for the purpose of overthrowing the legitimate government

Insurgency

Belligerency

Initial state of belligerency

More serious and widespread

Directed by military authorities

Under civil government

Usually not recognized

There are settled rules regarding recognition of belligerency

conditions:

a. there must be an organized civil government directing the rebel forces

b. rebels must occupy a substantial portion of territory of state

c. conflict between legitimate government and rebels must be serious, making the outcome uncertain

d. rebels must be will and able to observe laws of war

Consequences of Recognition of Belligerency

belligerent community is considered a separate state for purpose of the conflict it is waging

relations with each other shall be governed by the laws of war and their relations with other states shall be subject to the laws of neutrality, for the duration of hostilities

where recognition is extended by third states, consequences are effective only as to them and do not bind other state not extending recognition

only where recognition is made by parent state that the effects become general and legally applicable to all other states

RIGHT OF EXISTENCE AND SELF DEFENSE

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

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

The danger must be grave and actual.

Regional

arrangements and organizations are necessary for balance of power or an arrangement of affairs so that no state shall be in a position to have absolute mastery over another.

Aggression, use of armed force against a sovereignty, its territorial integrity or political independence of another state.

RIGHT OF INDEPENDENCE

Sovereignty, the supreme and uncontrollable and inherent power of the state to command and enforce obedience to which all interests are subject and all wills subordinate..

It is not absolute freedom,only means freedom from control by any other state and not freedom from the restrictions that are binding to all other states under the family of nations.

Doctrine of Non-Intervention- corollary to sovereignty, states must abstain in intervening in the domestic or international affairs of other states.

Valid intervention includes an act of self defense and when such intervention is decreed by the security council.

Drago Doctrine- contracting powers agree not to have recourse to armed force for recovery of contract debts

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

RIGHTS OF EQUALITY

All rights of a state, regardless of its number must be observed and respected by the international community in the same manner that the rights of other states are observed and respected.

ACT OF STATE DOCTRINE

TERRITORY

Territory is a fixed portion of the earth inhabited by a population of a state.

AQCUISITION OF A TERRITORY

Discovery and Occupation

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

There must be possession and administration

Possesion creates an INCHOATE TITLE which bars any other state from entering said territory within a reasonable time until the discovering territory is able to establish administration.

Upon administration, the inchoate title ripens into a full title.

Dereliction

A state physically withdraws from the territory with the intention of abandoning it altogether.

Said land becomes terra nullius once again and open to be discovered.

Prescription

The exercise of sovereign rights over a territory for a reasonable period of time

No rule fixing the exact period yet.

Cession

transfer of territory is by agreement between states.

Either by donation, sale, barter, exchange etc.

Subjugation

Having been previously conquered through war , territory is formally annexed to the victors territory at the end of war

Accretion

Natural or artificial

process as the gradual and imperceptible deposit of soil on the coasts through an action of water or through means of reclamation.

Components of territory- terrestrial,maritime and fluvial

Archipelagic Doctrine- The waters around, between and connecting the islands of the archipelago form part of the Philippine

internal waters.

-straight baselines should be drawn to connect appropriate points of the outmost islands without

departing from the general direction of the coasts so that the

archipelago shall be encompassed as one

territotry.

JURISDICTION

Jurisdiction is the authority of the state over its person and things within or outside its territory

Personal Jurisdiction- over persons bound by their duty of obedience and allegiance.

Such duty follows him even when he is outside

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

allegiance. Examples are laws on family code, family rights and duties, status, condition and legal capacities of

persons.

An alien may be subject to the laws of the state in whose national interest he has violated be it in its territory or outside.

Territorial Jurisdiction- over person and property within its territory.

Jurisdiction in our own territory is necessary, exclusive and absolute.

When states cannot exercise jurisdiction within own territory:

Foreign states (by vitue of sovereign equality), heads of states,diplomatic representatives and consuls to a certain degree ( by virtue of exterritoriality.

Foreign state properties including embassies, public vessels engaged in non-commercial activities, consulates.

Acts of State (by virtue of sovereignty and independence0

Foreign merchant vessels in innocent passage or arrival under stress.

Foreign armies passing thru or stationed in territory.

UN and others by treaty.

Land Jurisdiction- everything found within the terrestrial domain.

Maritime and Fluvial Jurisdiction

Criminal, administrative and vivil jurisdiction

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

English rule is applied in the Philippines. Coastal state has jurisdiction over all offenses.

French rule- Coastal state has jurisdiction only when the offense constitute a disturbance of peace to its territory.

Important is the determination of disturbance of peace.

Open Seas

A state a jurisdiction in the open seas:

Over its vessels. Flag state has jurisdiction at all times. Merchant vessels however are under jurisdiction when within territory,in open seas and when waived by the other territorial sovereign.

Over pirates. Pirates can be tried anywhere. Enemies of mankind.

In exercise of right to visit and search, under rules of neutrality.

Under the doctrine of hot pursuit. The pursuit must begin before the vessel leaves the territory of the state.

Aerial jurisdiction

Freedom to fly across territories without landing

Freedom to land for non-traffic purpose (refer page. 137)

THE RIGHT OF LEGATION

Diplomatic relations are normally conducted by the head of state or their foreign representatives.

Diplomatic Envoys

Ambassadors, envoys, ministers,charges de affaires

Diplomatic Corps

Body of the different diplomatic representatives who have been accredited to the same state.

Appointment of envoys shall be agreed upon by the states as to the class to which heads of missions are to be assigned.

President is empowered to appoint ambassadors with approval of CA. But acceptance of other states representatives is upon his

exclusive discretion.

Diplomatic Functions commence upon presentation of credentials upon notification of arrival and presentation credentials to the foreign minister.

Diplomatic functions

Represent the sending state

Protect theinterest of its nationals

Negotiate

Ascertaining conditions and developments and report them

Promote friendly relations

Diplomatic Immunities and Privileges

Personal inviolability. Cannot be arrested unless for instances that he laid his hands to our citizens or caused violence, he can be preventively restrained.

Immunity from civil, criminal or administrative jurisdiction. Remedy of receiving state is to ask for recall.

Exceptions are real actions relating to private properties situated in the receiving state; action realting to succession where the diplomat is the executor or administrator, heir, legatee, action to any professional or commercial activity unrelated to his mission or functions.

Inviolability of diplomatic premises. Premises may not be entered without consent.

Inviolability of archives.

Inviolability of communication.

Exemption from testimonial duties- not onliged to give evidence as a witness.

Exemption fromtaxation.

Diplomatic suite or retinue

Above immunities are available as well todiplomatic, technical, administrative staff and service staff.

Not extend to unofficial acts.

Private servants if they are not nationals of

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

CONSULS

state agents residing abroad for purposes of commerce and navigation.

Do not represent state in political matters

Appointmert

Letter patent- commission issued by sending state

Exequatur- authority given by receiving state.

Immunities and Privileges- official communication but may be curtailed when prejudicial to receiving state. Inviolability of

archives.

TREATIES

Defined as formal agreement between states regulating mutual relations under the law of nations.

Requisites

Treaty-making capacityall states are with full capacity except except by reason of their status such as a protectorate.

Authorised representatives-

o (phil0 president is authorized to make treaties with concurrence of 2/3 of the senate.

o A state is not bound by a treaty made by an unauthorized representative, it is void and unenforceable in the municipal laws of the state but nonetheless is binding in international laws and creates responsibility and liability to injuries caused by such agreement.

Freedom of vice of consent.

A treaty forced upon a negotiator is void ab initio. Forced upon the state, creates vice as well.

Lawful subject matter

Example of unlawful matter is dividing the pacific ocean between states.

Compliance with constitutional process.

Treaty making process

Negotiation- when such is finally decided, it shall be open for SIGNATURE which signifies authentication and good faith but not the final consent.

Ratification- is the final consent. Only the President of RP has the right to ratify, not the senate. Senate can only withhold or grant its consent to ratification. If the senate concurs with the treaty, the president may or may not ratify the treaty.

Exchange of instrument of ratification- which usually signifies effectivity unless a date is therefore provided.

Binding Effects

Only to the contracting parties. But may be

binding to third parties by accession, those who were not in the negotiation but were later allowed to sign it.

Third parties involved when treaty is only a formal expression of customary IL or GAPIL.

Treaty may expressly extend its benefits to non-signatories. (most-favored nation clause pg.176)

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

Rebus sic stantibus- justification for non-performance when the conditions with relation to the parties chamged overtime and such change is unforeseeable and unexpected not caused by the party as to create a situation where the exaction of performance becomes unreasonable.

Applies only to treaties with indefinite duration.

Cannot operate retroactively

Must be invoked within a reasonable time

NATIONALITY AND STATELESSNESS

Nationality is the tie that binds an individual to his stae. Interchangeably used with citizenship, but he latter has a more

exclusive scope.

Acquisition is by jus soli (by place of birth) or jus sangguinis (by blood), or by naturalization (direct or derivative)

Multiple nationality

Occurs with the concurrent application of two or more municipal laws which may follow jus sanguinis or jus soli.

Doctrine of indelible allegiance- two nationalities by operation of the different laws of the different states..

Loss of nationality- by forfeiture,

renunciation.

Conflict of nationality laws- the laws of the country applies for all purposes not minding or in exclusion of the laws of the other

countries.

-when a person is both American and Filipino, as to the Philippines, our laws determine his

citizenship, as to America their laws determine her citizenship

When determination is by a third country, the effective or active nationality rule is applied or the nationality nof the state he is most closely connected

Statelessness- a person without any nationality- renounce to be naturalized and yet naturalization is cancelled and

repatriation was not granted or when jus soli ans jus sangguinis are not applicable.

A wrong suffered by him through an act of the stae is damnum absque injuria, he has no state hence in theory no other state is injured

TREATMENT OF ALIENS

States may or may not accept aliens (exclusion) but when they do such aliens have the right of protection by the accepting state and to be treated fairly.

Doctrine of state responsibility

International delinquency when treatment of the alien falls below international standards of justice.

Failure to make reasonable efforts to prevent injury to the alien or fails to repair such injury.

Aliens before charging the state for delinquency and before resorting to diplomatic protection must first exhaust all available local remedies for his protection.

International claim for damages may be resolved thru negotiation, or good offices 9conciliation and mediation), arbitration and judicial settlement.

CALVO CLAUSE- stipulation by the alie where he waives or restricts his right to appeal to his own state and limit his remedies to the laws of the local state (contract).

Extradition

surrender of a person by one state to another where he is wanted for prosecution or punishment.

Basis is an extradition treaty

Principle specialty- person must be tried only for the crime he was extradited otherwise the extraditing STATE (not the person) may object to the prosecution.

Political and religious offenders are generally not subject to extradition.

Attentat clause, murder of a royal blood is not a political offense for purposes of extradition.

In the absence of special agreement, the offense must be done in the territoty or against the demanding state.

The act or offense must be punishable in both states.

SETTLEMENT OF INTERNATIONAL DISPUTES

METHODS SHOULD BE PEACEFUL.

Amicable methods

Negotiation, inquiry,good offices (conciliation / mediation), arbitration,

Hostile methods

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

WAR

OUTLAWRY OF WAR

Commencement of War

-must have previous and explicit warning , reasoned declaration of war or an ultimatum with conditional declaration.

Effects of outbreak of war

Laws of war substitutes laws of peace between parties

Laws of neutrality applies to third party states

Diplomatic relations are terminated

Treaties of politica nature are cancelled

Individuals are impressed with enemy character ( nationality test, domiciliary test, activities test)

Properties of the enemy within territory are subject to confiscation.

Conduct of hostilities

Military necessity

o Employ any amount and kind of force to compel submission of the enemy with the least possible loss of lives and destruction of property.

Humanity

o Should not employ force or any measure not absolutely necessary for the purpose

Chivalry

o Should not involve treacherous methods, no spies.

Belligerent occupation

No transfer or suspension of sovereignty, although may not be able to exercise at the moment

Political laws are abrogated, municipal laws continue in operation. (the contrary may occur upon an express or direct act by the belligerent government)

Postliminium

Persons and things taken by the enemy are restored to the original state upon cessation of the occupation

Reinstatement of the authority of the displaced government.

Laws of established government are revived and all acts by the belligerent contrary to laws are voided.

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

Suspension of hostilities

Suspension of arms

o Purpose of gathering of the wounded and burial of the dead

Armistice

o Political purpose, arranging times of peace.

Ceasefire, truce, capitulation

The victor punishes the loser by imposing to it a treaty of peace and obligation to pay reparations for injuries and losses suffered by the victor.

NEUTRALITY

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

Neutralitybased solely on the attitude of the state.

Neutralizationagreed upon by states.

Relations of belligerent states and neutral states

Duty to abstain in taking part in the hostilities

Prevent its territory anresources from being

used

Acquiesce in certain restrictions or limitations that belligerent may find necessary to impose especially with commerce.

War may not be undertaken in neutral territories without compromising its being neutral.

Neutrality is not negated by passage of warships to territories but may not enter in neutral ports except of stress, fuel, unseaworthiness and which sojourning is only for 24 hours which may be extended or shortened depending on circumstance.

Prohibited from giving assistance of any form to belligerent.

Private nationals decision to take part in the hostilities does not affect neutrality of the state.

Belligerent may visit and search neutral merchant vessels to determine connection with hostilities, if found as such, they are captured as PRIZE.

ANGARY- a belligerent may upon payment of just compensation, seize, use or destroy, in case of urgent necessity for defense or offense, a neutral property found in its territory, in enemy territory or in the high seas.