Professional Documents
Culture Documents
Regulates
the
relations
of
individuals
among
themselves or
with their own
states
Violations of the
municipal
law
are
redressed
through
local
administration
and
judicial
process
INTERNATIONA
L LAW
Is not imposed
upon but simply
adopted
by
states
as
a
common rule of
action
among
themselves
Derived not from
any
particular
legislation
but
from sources as
international
custom,
Breaches
of
municipal
law
generally entail
only individual
responsibility
international
conventions and
the
general
principles of law
Applies to the
relations inter se
of states and
other
international
persons
Questions
of
international law
are
resolved
through state-tostate
transactions
ranging
from
peaceful
methods
like
negotiations and
arbitration to the
hostile
arbitrament
of
like reprisals and
even war
Responsibility of
infraction
of
international law
is
usually
collective in the
sense
that
it
attaches directly
ot the state and
not
to
its
nationals.
intellectual
interests
which
received an authoritative universal
recognition.
SUBJECT V. OBJECT
CHAPTER 2
SOURCES OF INTERNATIONAL LAW
KINDS OF SOURCES
1. Primary/ direct sources
a. Treaties/conventions,
whether general or particular,
establishing rules expressly
recognized by the contesting
states
b. International
customsa
practice which has grown up
between states and has come
to be accepted as binding the
mere fact of persistent usage
over a long period of time.
c. General principles of law
recognized
by
civilized
nations- the general principles
of law are mostly derived from
the law of nature and observed
by the majority of states
because they believed to be
good and just.
2. Secondary/ indirect sources
a. Decisions of courts- art 38 of
the statute of ICJ does not
distinguish
between
those
rendered
by
international
tribunals
and
those
promulgated only by national
courts
b. Writing of publicists-must
also be, to qualify as such, a
fair
and
unbiased
representation of international
law, and by an acknowledged
authority in the field.
NOTE: The doctrine of stare decisis is not
applicable in international law, and so the
decision of a subsequent case.
CHAPTER 3
THE INTERNATIONAL COMMUNITY
INTERNATIONAL COMMUNITY
-
ELEMENTS:
1. A
permanent
populationHuman being living within its
territory
2. Defined territory- fixed portion of
the surface of the earth in which
the people of the state reside
3. Governmentagency
through
which the will of the state is
formulated,
expressed
and
realized.
4. Sovereignty or independenceexternal aspect or manifestation of
sovereignty, that is, the power of
the state to direct its own external
affairs without interference or
dictation from other states.
CLASSIFICATION OF STATES
INDEPENDENT STATES
one which is not subject
dictation from others in this respect
to
2.
3.
4.
5.
NEUTRALIZED STATES
An independent state, whether it
be simple or composite, may be
neutralized through the agreement with
other states by virtue of which the latter
will
guarantee
its
integrity
and
independence provided it refrains from
taking any act that will involve it in war or
other hostile activity except for defensive
purposes.
DEPENDENT STATES
An
entity
which,
although
theoretically a state, does not have full
freedom in the direction of its external
affairs. It fall into two general categories:
a. Protectorate- which is established
at the request of the weaker state
for the protection by string power
ADMINISTTATIVE
AMENDMENTS
-
of
the
General
a. Deliberativeinitiating
studies
and
making
recommendations
toward
the
progressive
development
of
4. Trusteeship council
- Charged with the duty of assisting
the Security Council and the
general
assembly
in
the
administration of the international
trusteeship system.
- Composed of :
o The members of the U.N
administering
trust
territories
o The permanent members of
the security council not
administering
tryst
territories
o As many other members
elected for 3 year term by
general assembly as may be
necessary to ensure that
the
total
number
of
members of the trusteeship
council is equally divided
between those members of
the United Nations which
administer trust territories
and those which do not.
- Each member has one vote and
decisions are reached by a majority
of those present and voting
- Under its authority, it may:
o Considered
reports
submitted
by
the
administering authorities
o Accept
petitions
and
examine
them
in
consultation
with
the
administering authorities
o Provide for periodic visits to
trust territories at times
agrees
upon
with
the
administering authorities
o Take such other actions in
conformity with the terms of
the questionnaire on the
political, economic, social
and
educational
advancement
of
the
inhabitant of the trust
territories
Trusteeship
council
is
largely
become
obsolete
with
the
conversion of practically all trust
territories
into
full-fledged
miniature states.
international
peace
and
security
o Acts a s secretary in all the
meetings of the G. A, the
security
council,
the
economic and social council
and the trusteeship council
and performs such other
functions
as
may
be
assigned to him by these
organs.
o He prepares the budget of
the U.N for submission to
the G.A, provides technical
facilities to be different
organs of the organization
and in general coordinates
its
vast
administrative
machinery
Secretary
general
and
the
members of his staff are internal
officers solely responsible to the
Organization and are prohibited
from
seeking
or
receiving
instruction from any government or
any authority external to the U.N
CONSEQUENCES
SUCCESSION
-
CHAPTER 5
THE CONCEPT OF THE STATE
CREATION OF STATES
-
By revolution
By unification
By secession
By assertion of independence
By agreement and attainment of
civilization
EXTINCTION OF STATES
-
By extinction or emigration en
masse of its population
By loss of territory
By overthrow of government
resulting in anarchy
OF
STATE
SUCCESSION OF GOVERNMENT
-
CHAPTER 6
RECOGNITION
THEORIES ON RECOGNITION
1. Declaratory (majority view)
- merely affirms the pre-existing fact
that the entity being recognized
already possess the status of an
international persons.
- Political and discretionary
2. Constitutive (minority view)
- It is last indispensable element that
converts or constitutes the entity
being
recognized
into
an
international person.
- Mandatory and legal
OBJECTS OF RECOGNITION
1. Recognition of a state- held
irrevocable
and
imports
the
recognition of the government
2. Recognition of a governmentmay be withdrawn and does not
10
RECOGNITION OF GOVERNMENT
-
REQUISITES:
1. government is stable and effective
(objective test)
2. no substantial resistance to its
authority
3. the
government
must
show
willingness and ability to discharge
its
international
obligations
(subjective test)
4.
government must enjoy popular
consent or approval of the people.
KINDS
OF
GOVERNMENT
THE
DE
FACTO
4. LAUTERPACHT DOCTRINE
- It is the recognition of an entity
which is not legally a state is wrong
because it constitutes as abuse of
the power of recognition. It
acknowledges a community which
is not in law, independent and
which does not therefore fulfil the
essential conditions of statehood
as an independent state. It is,
accordingly, a recognition which an
international tribunal declare not
only to constitute a wrong but
probably also to be itself invalid.
5. STIMSON DOCTRINE
- This precludes recognition of any
government established as a result
of external aggression
6. ESTRADA DOCTRINE
- This refers to dealing or not dealing
with the government established
through a political upheaval is not
a judgement on the legitimacy of
the said government.
RECOGNITION DE
JURE
Relatively
permanent
Vests title in the
government to its
properties abroad
Brings about
full
diplomatic relations
RECOGNITION
FACTO
Provisional
DE
11
the
RECOGNITION
REGIONAL ARRANGEMENTS
OF
of
other
12
CHAPTER 8
2 ASPECTS
1. INTERNAL SOVEREIGNTY Power of
the state to direct its domestic
affairs
2. EXTERNAL SOVEREIGNTY The
freedom of the state to control its
own foreign affairs.
o External sovereignty is more
often
referred
to
as
independence.
NATURE OF INDEPENDENCE
INTERVENTION
State
must
abstain
from
intervention.
It
expects
its
independence to be respected by
other states, so too must it be
prepared to respect their own
independence.
ESSENCE OF EQUALITY
13
ESSENCE OF EQUALITY
LEGAL
EQUALITY
INEQUALITY
VS.
FACTUAL
CHAPTER 10
TERRITORY
TERRITORY Fixed portion of the surface
of the earth inhabited by the people of the
state.
Must be permanent and indicated
with precision
Big enough to provide for the
needs of the population but not be
so extensive as to be difficult to
administer/defend from external
aggression.
Discovery
Occupation
Subjugation
Prescription
Cession
Accretion
Abandonment
Dereliction
Cession
Revolution
Subjugation
Prescription
Erosion
Natural causes
14
1. Acts of withdrawal
2. Intention to abandon
PRESCRIPTION
Prescription
in
international law requires long continued
and adverse possession to vest acquisitive
title in the claimant.
CESSION Method by which territory is
transferred from one state to another by
agreement between them. Acquisition of
territory by cession is usually effected by
such familiar transactions as sale,
donation, barter or exchange, and even by
testamentary disposition.
Terrestrial domain
Maritime domain
Fluvial domain
Aerial domain
Land mass
situated
completely in the territory of one
state
15
CHAPTER 11
JURISDICTION
JURISDICTION Authority exercised by a
state over persons and things within or
sometimes outside its territory, subject to
certain exceptions.
JURISDICTION IS CLASSIFIED AS:
1. Personal
2. Territorial
JURISDICTION MAY BE EXERCISED BY A
STATE OVER:
1.
2.
3.
4.
5.
6.
7.
8.
Its nationals
Terrestrial domain
Maritime and fluvial domain
Continental shelf
Open seas
Aerial domain
Outer space
Other territories
PERSONAL
JURISDICTION
Power
exercised by a state over its nationals.
Based on theory that a national is entitled
to the protection of his state wherever he
may be and is (Doctrine of indelible
allegiance)
JOYCE
VS.
PROSECTION
DIRECTOR
OF
PUBLIC
Defendant
Lord
HawHaw,
challenged his conviction in Great
Britain for high treason, contending
that he was not a British subject. It
appeared that he had lived in the
16
country
for
18
years
and
misrepresented himself as its
national for the purpose of
obtaining a British passport that
enabled him to go to Germany
where he was broadcast anti-Allied
propaganda.
o Although not a British
subject, he has by his own
act maintained the bond
which while he was within
the realm bound him to his
Sovereign
TERRITORIAL JURISDICTION
Gen. Rule: state has jurisdiction over all
persons and property within its territory
Navigation
through
the
territorial sea of a state for
the purpose of traversing
that
sea
w/o
entering
internal waters etc. as long
as it is not prejudicial to the
peace,
good
order
or
security of the coastal sea.
o ARRIVAL UNDER STRESS
Involuntary entrance may
be due to lack of provisions,
unseaworthiness
of
the
vessel, inclement weather,
or other cases of force
majeure, like pursuit by
pirates.
5. Foreign armies passing through or
stationed in its territories with its
permission.
6. Such other persons or property,
including organizations like the UN,
by agreement, waive jurisdiction.
Everything
found
within
the
terrestrial domain of the state is
under its jurisdiction.
Nationals and aliens, including nonresidents, are bound by its laws.
The local state has exclusive title to
all property within its territory.
THE
SCHOONER
MCFADDON
EXCHANGE
VS.
WINDENHUS CASE
LAND JURSIDICTION
17
OPEN SEAS
5 AIR FREEDOMS
1. The freedom to fly across foreign
territory without landing
2. The freedom to land for non-traffic
purposes
3. The freedom to put down traffic
originating in the state of the
aircraft
4. The freedom to embark traffic
destined for the state of the aircraft
5. The freedom to embark traffic
destined for or to put down traffic
originating in a 3rd state.
CONVENTION ON OFFENSES AND CERTAIN
OTHER ACTS COMMITTED ON BOARD
AIRCRAFT It is the state of registration of
the aircraft that has jurisdiction over
offenses and acts committed on board
while it is in flight or over the high seas or
any other area outside the territory of any
state
OUTER SPACE
18
DIPLOMATIC ENVOYS
OF
THE
RIGHT
OF
with
government
of
19
PERSONAL INVIOLABILITY
The
envoy
is
regarded
as
sacrosanct and is entitled to the
special protection of his person,
honor and liberty.
DIPLOMATIC CONVENTION: The
person of a diplomatic agent shall
be inviolable. He shall not be liable
to any form of arrest or detention.
The receiving state shall treat him
with due respect and shall take all
appropriate steps to prevent any
attack on his person, freedom or
dignity
The envoy cannot complain if he is
injured because he himself caused
the initial aggression.
The local authorities may also, in
exceptional cases, lay hands on
him if he has committed an act of
violence and it is necessary to
place him in preventive restraint.
INVIOLABILITY OF ARCHIVES
INVIOLABILITY OF COMMUNICATION
20
his
Also
from
social
security
requirements
under
certain
conditions.
Personal baggage is also free from
inspection unless there are serious
ground
DURATION
21
district;
exercising
a
measure
of
supervision over such vessels; adjusting
matters pertaining to their internal order
and discipline
Immunities and Privileges
*consuls
have
a
right
to
official
communication and may correspond with
their home government or other official
bodies by any means including cipher or
code
without
being
subjected
to
censorship or unreasonable restraint.
However, this right may be restricted
whenever it is exercised to the prejudice
of the receiving state
*Consuls enjoy the inviolability of their
archives, which may not be examined or
seized by the receiving state under any
circumstance, nor may their production or
testimony concerning them be compelled
in official proceedings. But this immunity
does not extend to the consular premises
themselves, where the legal process may
be served and arrests made without
violation of international law, except only
in that part where consular work is being
performed
*consular
offices
may
expropriated for purposes
defense or public utility
even
be
of national
22
means
of
authenticating the instrument and for the
purpose of symbolizing the good faith of
the parties; but it does not indicate the
final consent of the state
*the document is ordinarily signed
in accordance with the alternat, that is,
each of the several negotiators is allowed
to sign first on the copy which he will bring
home to his own state
RATIFICATION formal act by which a
state confirms and accepts the provisions
of
a
treaty
concluded
by
its
representatives.
*Purpose; enable the contracting
states to examine the treaty more closely
and to give them an opportunity to refuse
to be bound by it should they find it
inimical to their interests
*EXCHANGE OF THE INSTRUMENTS OF
RATIFICATION signifies the effectivity
of the treaty unless a different date has
been agreed upon by the parties
Binding Effect of Treaties
*A treaty is binding only on the
contracting parties, including not only the
original signatories but also other states
which, although they may not have
participated in the negotiation of the
agreement, have been allowed by the
terms to sign it later by a process known
as ACCESSION
*Instances when 3rd states may be validly
held to the observance of or benefit from
the provisions of a treaty.
* treaty may be merely a formal
expression of customary international law
which is enforceable on all civilized states
because of their membership in the family
of nations
*
for
the
maintenance
of
international peace and security
* parties to apparently unrelated
treaties may also be linked by the mostfavored-nation clause, under which a
contracting state entitled to most-favorednation treatment from the other may claim
the benefits extended by the latter to
another state in a separate agreement
Observance of Treaties
*Fundamental rules of international law is
PACTA SUNT SERVANDA, which requires
the performance in good faith of treaty
obligations
*parties
must
comply
with
their
commitments under a treaty and cannot
ignore or modify its provisions without the
consent of the other signatories
* a treaty engagement is not a mere moral
obligation but creates a legally binding
obligation
23
2.
3.
4.
5.
6.
7.
24
the
c. which causes
natonal of another state
to
the
a.
where
the
imternational
delinquency was committed by superior
government officials or organs, liability will
attach immediately as their acts may not
be effectively prevented or reversed under
the constitution and laws of the state
b. where the offense is committed
by inferior government officials or, more
so, by private individuals, the state will be
held liable only if, by reason of its
indifferencein preventing or pushing it, it
can be considered to have conived in
effect in its commission
25
DEPORTATION
EXTRADITION
Effected
at
the
request of the state
of origin
Based on causes
arising in the local
state
Based on offenses
generally
committed in the
state of origin
Undesirable
alien
may be deported to
a state other than
his own or the state
of origin
ENFORCEMENT OF CLAIM
* an international claim for damages may
be resolved through negotiation or, if this
fails, any of the other methods of settling
disputes
* in the event that the responsibility of the
state is established or acknowledged, the
duty to make reaparation will arise. Such
reparation may take the form of
RESTITUTION
or
SATISFACTION
or
COMPENSATION.
AVOIDANCE OF STATE
RESPONSIBILITY
* to avoid the intervention of the alien's
state in contracts, the local state
sometimes incorporates therein what is
known as the CALVO CLAUSE
* Calvo Clause stipulation by
which the alien waives or restricts his right
to appeal to his own state in connection
with any claim arising from the contract
and agrees to limit himself to the
remedies available under the laws of the
local state.
* calvo clause may be enforced as
a lawful condition of the contract.
However, may not be interpreted to
deprive the alien's state of the right to
protect or vindicate his interests in case
they are injured in another state as such
waiver can legally be made not by him but
by his own state
EXCLUSION OF ALIENS
* the state may also avoid liability to
aliens by refusing their admission, but this
is not regarded as sound policy since it
Basis of Extradition
* The extradition of a person is required
only if there is a treaty between the state
of refuge and the state of origin
* in the absence of a treaty local state
has every right to grant asylum to the
fugitive and to refuse to deliver him back
to the latter state even if he is a national
Fundamental
Extradtition
Principles
of
26
CHAPTER 17
SETTLEMENT OF INTERNATIONAL
DISPUTES
Amicable Methods
1. Negotiation generally the first step
taken in the settlement of an international
dispute is the discussion undertaken by
the parties themselves of their respective
claims and counterclaims with a view to
their just and orderly adjustment.
* where the talks prosper and
agreement is reached, it is usually
formalized in a treaty or more directly
effected through the rectification of the
injury caused to the claimant state
2. Inquiry investigation of the points in
question, on the theory that their
education will contribute to the solution of
the differences between the parties.
3. Good Offices method by which a third
party attempts to bring the disputing
states together in order to enable them to
discuss the issues in contention and arrive
at an agreement
4. Mediation third party does not merely
provide
the
opportunity
for
the
antagonists to negotiate but also actively
participates in their discussions in order to
reconcile their conflicting claims and
appease their feelings of resentment
ARBITRATION
JUDICIAL
SETTLEMENT
Arbitral tribunal is
an ad hoc body
created and filled by
the parties to the
dispute themselves
Judicial tribunal is a
pre-existing
and
permanent body
Submission
arbitration
voluntary
Jurisdiction
compulsary
Arbitration
proceedings
limited
to
is
27
the will
parties
of
the
any
member
of
the
united
CHAPTER 18
b. ENFORCEMENT ACTION
WAR
*WAR armed contention between the
public forces of states or other belligerent
communities, implying the employment of
violence among the parties as a means of
enforcing their respective demands upon
each other
* War may exist even without the use of
force
Outlawry of war
* war was originally accepted as a
legitimate means of a compulsion, that it
was a reaction to an international delict
* in only 2 instances is the use of force
allowed:
1. exercise of the inherent right of
self-defense
2. enforcement action
28
Commencement of war
are
regarded
as
Conduct of Hostilities
* three basic principles underlie the rule of
warfare
1. principle of military necessity
employ any amount and kind of force to
compel the complete submission of the
enemy with the least possible loss of lives,
time and money
2. principle of humanity use of
any measure that is not absolutely
necessary for the purposes of war
3. principle of chivalry those that
require the belligerents to give proper
warning before launching a bombardment
or prohibit the use of perfidy in the
conduct of the hostilities
29
Kinds of Warfare
* warfare may be waged on LAND or SEA
or in the AIR, separately or simultaneously
* most of the rules on aerial warfare have
become obsolete and need to be revised
to make them conform to present realities
* as for naval warfare, the most serious
difficulties lie in th disagreement among
states as to whether armed merchant
vessels are subject to direct attack
*one important rule is that booty or
personal property found in the battlefield
is subject to confiscation by the belligerent
occupation except only the personal
belongings of the individual combatants
which have no military value.
THEATRE OF WAR: place where
hostilities are actually conducted
the
Belligerent Occupation
* territory is deemed occupied when it is
actually placed under the authority of the
hostile army, but this occupation is limited
only to the area where such authority has
been established and can be effectively
exercised. It is not necessary that every
square foot of the territory in question be
actually occupied
* Belligerent occupation does not result in
transfer or suspension of the sovereignty
of the legitimate government although it
may at the moment be unable to exercise
it. The belligerent occupant cannot
perform such acts as declaring the
independence of the occupied territory or
requiring its inhabitants to renounce their
allegiance to the lawful government
* the belligerent is required to restore and
ensure public order and safety while
respecting, unless absolutely prevented,
the laws in force in the country.
*
the
belligerent
occupant
may
promulgate new laws, non-political as well
as political, provided they do not
contravene
the
general
accepted
principles of international law. The political
laws are automatically abrogated upon the
end of the occupation but the non-political
laws may continue even beyond the
occupation unless they are expressly
repealed or modified by the legitimate
government
* it is permitted for the belligerent
occupant to introduce military currency,
provided the purpose is not to debase the
countrys economy
* private property cannot be confiscated,
but those susceptible of military use may
be seized, subject to restoration or
compensation when peace is made
* the property of municipalities and of
institutions dedicated to religion, charity
and education, and the arts and sciences,
even when state owned, shall be treated
as private property and their destruction is
expressly forbidden
* the army of occupation can only take
possession of cash, funds and realizable
securities which are strictly the property of
the state, depots of arms, means of
transport, stores and supplies, and
generally movable property belonging to
the state which may be used for military
operations
*the occupying state shall be regarded
only as administrator and usufructuary of
public buildings, real estate, forest,
agricultural estates belonging to the
hostile state and situated in the occupied
territory
Postliminium
* persons or things taken by the enemy
are restored to the former state on coming
actually into the power of the nation to
which they belong
* JUS POSTLIMINIUM reinstatement of the
authority of the displaced government
once control of the enemy is lost over the
territory affected
* upon the end of a belligerent occupation,
the laws of the re-established government
are revived and all acts taken by the
belligerent occupant which it could not
legally do under the law of nations, as well
as lawful acts of a political complexion, are
invalidated
30
Non-Hostile Intercourse
FLAG OF TRUCE white flag carried by
an individual authorized by one belligerent
to enter into communication with the
other
Termination of war
1. cessation of hostilities
Suspension of Hostilities
* SUSPENSION OF ARMS temporary
cessation of the hostilities by arrangement
of the local commanders for such
purposes as the gathering of the wounded
and the burial of the dead.
* ARMISTICE suspension of
hostilities within a certain area or in
entire region of war agreed upon by
belligerent governments usually for
purpose of arranging the terms of
peace
ARMISTICE
all
the
the
the
the
SUSPENSION OF
ARMS
Purpose: political
Purpose: military
May be concluded
by
the
commanders-inchief
May
be
agreed
upon by the local
commanders
Usually in writing
May be oral
Aftermath of War
* one of the inevitable consequences of
war s the implied judgment, right or
wrong, that the vanquished belligerent is
the guilty party in the dispute that caused
the hostilities.
* treaty of peace imposed by the victor
upon the defeated state is regarded as a
punishment as is sustained on the ground
although marked by the vice of duress
that normally would invalidate other
agreements
*nationals of the vanquished state may be
protected and punished as war criminals
and for other violations of international
law. They may not escape responsibility on
the ground that they were merely acting
on orders of their state
CHAPTER 19
* CEASEFIRE unconditional stoppage of
hostilities by order of an international
body
* TRUCE regarded as ceasefire with
conditions attached
NEUTRALITY
* A state is said to be neutral if it does not
take part, directly or indirectly, in a war
between other states.
31
governs
the
Laws of Neutrality
a. Relations of the belligerent states
with the neutral state
b. Relations of the belligerent states
with the nationals of the neutral
state
Relations of belligerent States and
Neutral States
* a neutral state has the right and duty to
abstain from taking part in the hostilities
and from giving assistance to either
belligerent; prevent its territory and other
resources from being used in the conduct
of hostilities by the belligerents, and to
acquiesce in certain restrictions and
limitations that the belligerent may find
necessary to impose, especially in
connection with international commerce
* belligerents are bound to respect the
status of the neutral state
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*
international
law
considers
the
relationship as strictly between the
individual and the belligerent states and
whatever hardships may be suffered by its
nationals as a result thereof must, as a
rule, be acquiesced in by the neutral state
both
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Unneutral Service
* consists of acts, of a more hostile
character than carriage of contraband or
breach of blockade, which are undertaken
by merchant vessels of a neutral state in
aid of any of the belligerents
*
a
neutral
vessel
is
liable
condemnation for unneutral service:
to
Termination of Neutrality
1. when the neutral state joins the war
* neutral state will be governed by
the laws of war in its relations with the
other belligerents and by the laws of
neutrality in its relations with all other
states
2. upon conclusion of peace
*all states will again be governed
by the laws of peace
entirely
by
the
enemy
Angary
* by the right of angary a belligerent
may, upon payment of just compensation,
seize, use or destroy, in case of urgent
necessity for purposes of offenses or
defense, neutral property found in its
territory, in enemy territory, or on the high
seas
* THREE REQUISITES
1. that the property is under the control or
jurisdiction of the belligerent
2. thet there is urgent necessity for the
taking
3. that just compensation is paid to the
owner
34