ATTY. LUCIG R. MABALOD JR NOTARY BUBLit NOTARIALCUMMISSID 4 UNTIL OSCENSER 34 2 GIF BLANSOSLOGAN.S.. pUSAS. HOMBRE. 787 TELAEAX NO,(OBDS9S226> TREATIES PTRNO.0982724-4ig2.05.2015 1BP NO.897192/ Jan-05.2015 A treaty is a formal agreement, usually but not necessarily iayertings whichJe entered into by states or entities possessing the treaty: making capacity for the purpose of regulating their mutual relations under the law of nations. ‘An international agreement concluded between States in written form and governed by international lav, whether embodied ina single instrument or in two or more instruments and whatever is particular designation. [Vienna Convention on the Law of Treaties, 1969]. it is an agreement between States, including intemational organizations of States, intended to create legal rights and obligations of the parties thereto. It js the ubiquitous instrument through ‘which all kinds of international transactions are conducted. it is the closest analogy to legislation that international iaw has to offer. Other names used to designate international agreements besides “treaty”, are “convention”, “pact”, “protocol”, “agreement”, “arrangement”, “accord”, “final act”, “general act” and “exchange of notes”. Treaty may embrace such compacts as conventions, declarations, covenants, acts, concordats, pacts, etc, which have recognized variations in their extent or purposes. All such agreements, when intended to create legal as distinguished from moral obligations, are binding on the parties. (which will require Senate concurrence for validity) — generally refer to basic political issues, changes in national policy and permanent international arrangements; while executive agreements (which do not require such concurrence) refer to adjustments of detail carrying out well-established national policies and temporary arrangements. [USAFFE Veterans ¥. Treasurer of the Philippines, where the Court held that the Romulo-Snyder Agreement, involving a loan of $35M, was a purely executive act which the President may validly enter into by virtue of the authority granted to him under existing law. ~ in case there is a dispute as to whether or not an intemational agreement is purely an executive agreement, the matter & referred to the Secretary of Forcign Affairs who will then seck the comments of the Senate Representative and the legal adviser of the Department, and after consultation with the Senate leadership, the Secretary of Foreign Affairs shall then, on the basis of his findings, make the appropriate recommendations to the President. = An executive agreement s not a treaty insofar as its ratification is not required under our Constitution. However, the distinction is purely municipal and has no international significance. = From the standpoint of international law, “treaties and executive agreements are alike in that both constitute equally binding obligations upon the nation.”[F.8. Sayre, 39 Columbia Law Review, p. 75 (1939)}- ® Executive Agreements — has been used to refer to agreements conduded by the President of the United States or by the President of the Philippiries — which fall short of treaties. They sometimes take the form of exchanges of notes and at other timesthat of more formal documents denominated ‘agreements’ or protocols. They cover such subjects as the (a) inspection of vessels, (b) navigation dues, (c) income tax on shipping profits, (d) the admission of cvil aircraft, (e) postal matters, (f) the registration of trademarks and copyrights, etc. (read, Sayre, The Constitutionality of Trade Agreement Acts, in 39 Columbia Law Review, pp. 651, 755.) = An exeaitive ogreement may, within the context of municipal law, not be considered as a treaty [Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351], but from the standpoint of international law, they are equally binding as treaties. = Form> Under Art. 2, Vienna Convention, treaties should be in writing; but under Art. 3 thereof, the fact that a treaty & unwritten shall ajfect Rs legal force, but that convention rules on matters governed by international law independently of convention shall apply and thet convention rules shall apply to the relations of the States among themselves. ifS should not be used when the suibject matter should be covered by a treaty. They shall be used only for agreements which fall Into one or more of the following, categories: ® Agreements which are made pursuant to or in accordance with existing legislation or treaty; ® Agreements which are made subject to Congressional approval or implementation; or ® Agreements which are made under end in accordance with the President's constitutional powers. [Department of State Grcular No. 175, Dec. 13, 1955, which could be applied to the Philippines] = Executive agreements not authorized by prior legislation and not falling within the sphere of constitutional presidential authority appear to be void; more so, if they contravene existing, legislation on the subject covered thereby. [ULS. v. Guy W. Capps, Inc, 1953, 2045. (2°9)]. 1.) Presidential Agreemients ~ agreements made purely as executve acts affecting external relations and independent of or without legislative authorization. 2.) Congressional Exeautive Agreements — agreements entered into in pursuance of acts of Congress. ® Contents of Treaties — the subjects of treaties would depend upon the will of the Parties. ‘They may be economic, political, cultural, mittary, ete. ‘© Treaties may be DECLARATORY of international law, ie., affirming or confirming the existence of certain rules or principles of intemational law. They may be LAWMAKING in nature; that is to say, they propose certain rules to guide the signatories in their future relations. ‘© General international law may be customary or conventional, depending upon Whether it s based on customs or upon the agreement of nations. ‘© May customary international law be modified by treaty? = it would depend upon whether it should be considered as of the character of jus cogeens or of jus dispositivim. Jus Cogens ~ applies to peremptory norm of general international law from which no derogation is permitted. it can be modified only by « subsequent norm of general international law having the same character. (Art. 37)> (Riera. To enable the parties to settle finally actual and potential conflicts. To make it possible for the parties to modify rules of international customary law by means of optional principles or standards. To pave the way for the transformation of unorganized intemational society into one which may be organized on any chosen level of social integration. To provide the humus for the growth of intemational customary law. ‘etna 141] ® @ @ Capacity to Contract [Treaty making capacity]. Entered into by parties having the treaty-making capacity; Under customary intemational law, _ international organizations are deemed to possass treaty-making capacity, although such capacity may be limited by the purpose and the constitution of such organizations. Competence of the representativeforgan concluding the treaty. [Agents must be duly empowerec.] Through their authorized organs or representatives; Generally, the Head of State exercises the treatymaking power. In the Philippines, it is the President who exercises the power, subject to concurrence by 2/3 of all the members of the Senate. freecont of Consent. Without the attendance of duress, fraud, mistake or other vice of consent; the consent of a State may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by other means manifesting consent. = Whate the consent of a party has been givan in arror or induced through ‘fraud on the party of the other, the treaty is voidable. = Where the consent of the State is obtained through the corruption of it representative by another negotiating State, the former may invoke such corruption in invalidating its consent to be bound by the treaty. ~ Treaties which have been imposed (through coercion or duress) by a State of unequal character is void. (@) Ona laveful subject or object in international lave - within the commerce of rations and in conformity with international lave. However, the object is deemed illegal only when it contravenes or departs from on absolute or imperative rule or prohibition of international lav. ~ Customary international law has the status of peremptory norm of international law, accepted and recognized by the international community of states as a rule from which no derogation is permitted. Accordingly, 2 treaty whose provisions contravene such norm/rules may be invalidated. [Human Rights cases v. Marcos, where i was held that offical torture of prisoners or dissenters is a violation of the principle of jus cogens.] 6) Ratified i accordance with their respective constitutional processes. ~ Sec. 2, Art. Vii Philippine Constitution, provides: “No treaty or international agreement shall be valid and effective unless conaurred in by at least 2/3 of all the members of the Senate.”© It fs for the municipal law of a State to determine which organ of the State shall be empowered to enter into treaties on its behalf. [Art. Vil, Sec. 2% ‘No treaty or international agreement shall be valid and effective unless concurred in by at loest two thirds ofall the Members of the Senate’) ‘©. The International Law Commission, in its draft ‘Law of Treaties’ provides that “the fact that a provision of the internal law of the state regarding competence to enter into treaties hos not been complied with shall not validate the consent expressed by its representative, uniess the violation of international law was manifest.” if a state has heen induced to enter into a treaty by the fraudulent conduct of another contracting state, ft may invoke the fraucd as invalidating its consent to be bound by the treaty or by the particular clauses thereof to which the fraud relates. [iL Draft law of Treaties, Art, 33.] » it may invalidate the treaty if the error relates to a fact or state of facts assumed by a contracting party to exist at the time when the treaty was entered into and forming an essential basis of Its consent to be bound. © Anetror relating only to a particular clause(s) shall invalidate the consent of the state with respect to those clauses only 1 When there is no mistake as to the substance oj a treaty but there is an error in the wording of the text, the error shall not affect the valldlty of the treaty. (Id, Art. 34.) Any treaty the conekusion oF neiples of Ure (hx me vokd” (APE. 36,+] '¥ Atreaty apportioning the open sea to the exclusive uses of the contracting parties. % Atreaty dealing with traffic in white slavery or narcotics. + _Atreaty for the operation of piratical activities. > EER | eters tothe diseansion of the provisions of the propased treaty, undertaken by the raprusentatives of the contracting, parties who are provided vith redentia’s knw as FULL POWERS or PLEINS POUVOIRS [A document emanating from competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, expressing the State’s consent to be bound by a treaty, or accomplishing any other act with respect to a treaty. However, eve without suck full powers, It has been the general practice to consider the following as representatives of the State for treaty negotiation: (a) the Head of State; (b) Head of Government; (¢) the Foreign Minister; {@) representative accredited by the State to an international conference or to an international organization (to adopt the text of a treaty in that conference or organization)}. it c:istomary for one of the parties to suibital a draft prepasal which, together with the counter proposals, hecemes the basis uf the negotiation. When agreement fs reached, the resultant [ERE - pin cvty intonciod as a means of authonticating the instrument and symbolizing the good faith of the contracting parties. Significantly, it does not indicate consent where ratification of the treaty is required, as is uwal, But where ratification is dispensed with, the signature will operate to bind the parties to the treaty. eumont is ready for signature > RR ee ar-angoment uncer which each negotiator i allowed to sign first on the copy of the treaty which he will bring home to his own country, ihe purpose being to preserve the formal appearance of equality among, the contracting, states and to avoid delicate questions of precedence among the signatories. > BY an act by which a State formally accepts the provisions of a treaty concluded by its representative. The purpose of ratification is to enable the contracting parties to examine the treaty more Closely and to give them an opportunity to refuse tobe bound by & should they find t inimical to ther interests. Hotes «Unies ratification is expressly dispersed with, and more so if it 6 expresdy tequied, at umuatitied tealy Gamat be 3 source of objigations between Ihe paities, = There iene legal e on to ratify a treaty, butt relasal fo ratify a treaty therwise, the other party would Vota treaty, must be based on calstantial yrounds, be justified in taking offense. At tines, to void total reie:fhe ratification f qualified or made confidential, that is, with reservations, f allowed. = Reservation Tometfect an amendment entered ito a treaty as a condition for concurrence of for ratification, 1 has to be Sent byt ote ats oe Sten ‘order that the treaty may come ‘inenpetitive remeiatlO,” eiving application of certain provisions to i1 relations of the state with the other state or states; or a iif FRRGEIE changing the text of the treaty itself. © Legal Effect of a Reservation — “a State which fas made end maintained a reservation which has been ubjected to by one or more of the parties to the Convention but nat by otfe Convention if the revervat the object and purpose of the Convention; otherwise, the State cannot be regarded as bein pally to the Convenlion."[LCL Reports, p. 15/1951. Advisory Opinion on Reservations, rendered at the request of General Assembly in connection with the ratification of the Genocide Convention. ] «being a party to th + When Does a Treaty Becomes Ftfective? 2 On the date or event agreed upon by the parties or specified in the treaty ebsence oj sticitan agreement, (a) upon the exchang of the instrument of ratification, Where ratificalion 's dispensed effective (B) upon signature. ¢ With respect to adhering States, not the original parties, « « become effective upon receipt by the depository agency e "Notice of Adherence’, «niess either the treaty specifies 5 7 the "Natice of Adberence? ise ming into force of the agreement, (Fanfic ty Ibid, P28 + Upon Natural and Juridical Persons in the State, cnet scribed hy the Municipal Low. (ikon, or as p = Who are bound by the provisions of a treaty?only on the contractiny 6 but alee: other States spated inits = As a ttile, including net ignator slic, althiongis they miay rest have f fave been allowed b isto sign ala i a so pets eg coo foxes Mg Set penen eli non-signatory State becomes a party to treaty. Thus, upon invitation or permission of the contracting parties, a third party who did not participate or who did not ratify on time, may be bound by a treaty. ‘+ Instances when third States may be bound by a treaty: © General Rule: Non parties to a treaty are not bound thereby under the maxim ‘pacta tertiis nec nocent nec rosunt.’ HEBRR the treaty may be merely a formal expression of customary international law which, as such, 's enforceable on all civilized states because of tieit membership in teh family of nation: MII £ is provided under Article 2 of the UN Charter that the Orgenization and under Article 103 that the treaty itself may expressiy extend its benefits to non: signatorles thereof, as in the case of the HayPauncejote Treaty of 1901, which opened the Panama Canal “to the vessels of commerce and of war of all nations observing these Rules, on terms of entire PURER parties to apparently unrelated treaties may also be linked by the ‘most favored nation-clause", uncer which a contracting State entitled to most favoured-nation treatment from another State ~ itis « clause inserted in many treaties, especially those of a commercial nature, by which there cre granted to the parties, advantages, sirsfarly conferred or which may be sivitatly conferred upon third persons. (Wilson, Hid, p. 198.). tt may be a gratultous conferring of privilege; It ray be conditional; or it may depend 10n like concessions on the part of other nations. PRBREERURSMIIE is 0 cae sere n'a ety according to’ which each of the signatories thereto agrees to accord to the national of the other signatories Whatever rights and privileges it may accord to the nationals of a third state — signatory or not.EEESSESIEDY — ft sc formal act by which a state agrees to assume the obligations and privileges of a treaty, already signed by other states. The original parties to a treaty sign the same; the adhering or acceding states do not. Normally, the permission of the original parties is required, unless it has been previously given. in a corresponding provision of the treaty indicating how other states may become parties thereto. ~ they are statements attached to the approval (concurrence by the Senate in our case) or ratification of @ treaty by means of which a party thereto specifies its own interpretation of certain provsions thereof. They are, In effect, advance interpretation which may serve as guide in the event of subsequent disagreement as to the meaning of treaty provisions. The term understanding has been replaced by the term Interpretative reservations. Enkiy inte Force - A treaty enters into force in such manner and on such date as it may provide, or as the negotiating parties may agree. in the absence of such a provision, the treaty enters into force as soon as the consent of all persons to be bound by the treaty is established. EXehangeleflinstumnene etl Ratfieation!™) consent is deemed established with the exchange of the instruments of ratification, acceplance, approval or accession; of, if the treaty so provides, upon deposit or such instruments with a named depository, coupled with the notification to the contracting States of such deposit. - Consists mainly in the handing by the plenipotentiary of the Philippines, to the plenipotentiary of the foreign government, of a copy of the Philippines’ original of the treaty ratified by the President of the Philippines; and the plenipotentiary of the foreign government handing to the plenipotentiary of the Philippines, a copy of the foreign government's original of the traaty ratified, by the head of the foreign government. © A RBIBRD! attesting to the exchange of ratifications should be signed by ‘the two plenipotentiaries at the time the exchange is made. The protocol is signed in duplicate originals, one for each government, in which the principle of the ‘alternat’ is observed in the same manner asin the case of the treaty. > SR - the treaty is brought to the attention of the people with the issuance of the corresponding proclamation. > Registration of a treaty is not essential to its validity. But under Article 102 of the UN Charter, a treaty not registered with the U.N. Secretariat, by which i shall be published, cannot be invoked before any organ of the United Nations. Falure to register would not, however, affect the validity of the treaty. It provides for the compulsory registration of treaties and agreements. It reads:(1) Every treaty and every international agreement entered into by any member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat end published by R. (2) No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the U.N. + This applies to members as well as, to non members of the U.N. If net registered, the treaty is nevertheless binding between the signatories, but it may not be invoked before any organ of the United Nations. © BRERA an agreement usually relating to some specific subject rather than to matters of general character asin the case of treaty. It isa term used to designatean agreement of a rather technical nature, © RERSIRERSERIVEEA —may embody the form of an agreement already made or to be mace and & usually fess formal than a convention, both in pirasing and in arrangement. Protocols are sometimes formally ratified by the treatymeking powers, and sometimes are simply the signed minutes of a conference, The term is generally used to designate a di treaty or convention. © Rifesnent caigameNE Or AAAS VER usualy proscribes in detall the line of conduct which will be followed in interstate reiationss under certain conditions. © BREED — are usually in the form of reciprocal agreements relating to the rights and privileges of the nationals of the States, The term “declaration” is also applied to the formal statement of the principles in accord with which states propose to act, of to the formal statement of the grounds for an action. ‘© GHRSE — are agreements concluded between belligerents in regard to intercourse in times of war and indude such subjects as the exchange of prisoners, transmission of mail, free passage of couriers, ate. ‘© SSREOSIGEESSRSRR IER - are agroarents tentatively made between representativas of states not properly commissioned, or agreements made by representatives in excess of authority. (Wilson, Ibid, p. 186).© (REIS — are agreements through wtich one or more powers engage to maintain, to aid in maintaining or not to interfere ‘with, given conditions or right. An example 's the Treaty guaranteeing the perpetual neutrality of Switzerland and the irviolability of its territory, on November 20, 1815. © GRBRRIRTAEIGE - denotes an agreement to refer to arbitration some matters in dispute. ‘® PHBE — is used at times to mean treaty, like the Pact of Paris of 1928, renouncing war as an instrument of national policy. ‘© TGREGRERE - are agreements entered into by the Pope with the heads of forelgn states. © FRERURTISTGGREAHERNS — is a pretmnary agreement on certain points tobe Included ina treaty. ® Note Verbale - is a diplomati: communication prepared in the third person ond unsigned: less formal than a note (also called a Letter of Protest) but more formal than an aide memoire. A note verbaie can also be referred to as a Thite person Nate (TPN). An unsigned request to another State. Example. Ukrainian protest of the Amexation of Crimea by the Russian Federation. “The Uksainian party categorically denies extension of sovereignty of the Russian Federation on Ukrainian territory, and reserves the right to exercise measures in accordance with international law and the laws of Ukraine.” Modus Vivendi — arrangement pending formal agreement. It is an Instrument for establistiiig an international accord of a temporary oF proviionel nature, intended to be replaced by a more substantial and thorough agreement, such as a treaty. it is usually fashioned informaly, and so never requires legislative ratification. Typically armistices and instrumants of surrender are modus Vivendi. © comitas Centum comity or courtesy among nations Treaties should receive reasonable interpretation. In case of doubt in regard to interpretation, the following rules have been generally accepted: ‘@ When there is doubt as to the interpretation of the words of a treaty: (2) The ‘words are to be interpreted in thelr usual sense, unless this involves an absurdityor is incompatible with the general provisions of the treaty; (b) words having more than one meaning are interpreted In the more general sense, rather than the technical sense, unless cleanly used in the technical sere; (c) words are tobe interpreted as understood at the time of the negotiation of the treaty and favourably to the party assuming an obligation. ‘* When there is doubt 2s to the interpretation of the provisions of a treaty: (a) That which is specifically stated prevails against the more general; (b) a negative outweighs ¢ corresponcing, positive; (Q) provisions operating unequally may be strictly construed by the party suffering the greater burden; (d) single provisions should be interpreted with raferance to tha whole treaty. + In case of contlict between different treaties: (a) if between treaties to which the same states are parties, the latter treaty is binding; (b) if between earlier and later treaties to which the same are not parties, the earlier treaty is binding. (Ailson, Ibid, p.113). + That depends upon the law of the State, The Constitution may provide that freaties shall, together with the Constitution and the laws made pursuant thereto, be the supreme law of the land (US.). It may provide that they be part of the law of the land, if so determined by the parliament (Burma). It may also provide that certain treaties shall have tthe force of law even when they are contrary to legislation, *In-countties where the Constitution is considered to be the fundamental or basic law of the Jand, In case of a confict between the Constitution and a treaty, the Constitution shall prevail. This is the rule in the U.S. and in the Philippines, + In case of a conflict between a treaty and a statute where the Constitution says that both constitute the supreme law of the land, that Which is later in point of time shall prevail. Where the Constitution says that imemational agreements shall prevail over national legisiation, in case of aconflict the treaty shall prevail. = Where they are salfexecuting, they shall be enforced as statutes are entorced directly by the executive department and by the courts. Where they require mplementing legistation, they will not be enforced by the courts until the law-making agency has implemented the same by directly enacting alew. aaa OT» pacta|SUint/ServaAida — means that treaties must be observed in good faith despite hardship on the contracting state, such as conflicts between the treaty and its constitution or prejudice to the national interest a5 a result of the operation of the treaty. As a general rule, a party must comply with the provision of a treaty and cannot ignore or modify it without the consent of the other signatory. Witful distegard or violation of treatles without just cause 6 frowned upon by the society of nations. In the Philippines, however, treaties ‘may be declared invalid if contrary to the Constitution, § — would justify non performance of treaty obligations if the conditions in relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable, Example: if States A and B agree on the reciprocal use of their respective port facilities and B's only important port is thereatter acquired by State C, State A would be released from continuing to accords to the treaty privileges to State 8, which is no longer able to fully perform its abigations uncler the treaty, (lessup, 161). © Santos hv, Northwest Orient alrines, 210 SCRA 256 — the Supreme Court rules that this doctrine does not operate automatically, There is @ necessity for a formal act of rejection, usually by the Head of Stato, with the statement of the reasons why compliance with the treaty is no longer required. Thus, the contention that the Warsaw Convention (of 1033, to which the Philippines acceded in 1950 and became bound thereby on February 9, 1951) should not epply because of the change in present circumstances as compared with the 1933 situation, is not tenable. The requisites for valid invocation of this principle are: The change must be so substantial that the foundation of the treaty must have altogether disappeared; = The change must have been unforeseen or unforeseeable at the time of the perfection of the treaty; = The change must not have been caused by the party invoking the doctrine; The doctrine must be invoked within a reasonable time; The duration of the treaty must be indefinite; and ‘The doctrine cannot operate retroactively, ie, it must not adversely affect provsions which have been complied with prior to the vital change in the situation. = Itapplias only to treaties of indefinite duration.+ ‘« The vital change claimed as justification for the discontinuance of the treaty must have been unforeseen or unforeseeable and must not have been caused by the party invoking the doctrine. * The doctrine must be invoked within a reasonable time from ‘the occurrence of the change asserted. = The doctrine cannot operate retroactively upon the provisions of the treaty already executed prior to the change in circumstances. (Salonga and Yap, 310.) ‘a treaty shall be interpreted in good faith, in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its objects and purposes. To be considered in the interpretation are its text, preamble, annexes, as well as other agreements relating to the treaty and subsequent agreements entered into by the contracting parties. ++ AtendeHYMOdIfication — To amend or modify provisions of the treaty, the consent of all the parties is required. However, if allowed by the treaty itsalf, two States may modify a provision only insofar as they are concerned. Expltation of the term, which may be fixed or subject to a resolutory condition oF withdrawal of a party in accordance with the treaty. ‘Accomplishment of the purpose. Supervening Impossibility of performance. Loss of the subject matter. Novation. ‘Mutual agreement of al the parties. enunciation or Desistance of the parties through mutual consent, by desuetude, or by exercise of the right of denunciation (or withdrawal) when allowed. Extinction of one of the parties i the treaty is bipartite- when the rights and obligations under the treaty would not devolve upon the State that may succeed the extinct State, Occurrence of a vital change of circumstance under the doctrine of rebus sic stantibus. Outbreak of war between the parties, except where the treaty Is Interdded precisely to regulate their relations during war. By voidance of the ieaty because of defects in its conclusion, violation of its provisions by one of the parties, or incompatibility with intemational law, the U.N, Charter, or a subsequent agreement. Conclusion of a subsequent inconsistent treaty between the parties. Material breach or violation of the treaty. Severance of diplomatic relations, only if the existence of such relationship is indispensable for the application of the treaty. The doctrine of jus cogens, or the emergence of a new peremptory norm of general international law which renders void any existing treaty conflicting with such norm. Loss of the subject matter.ATTY. LUCIO R. MABALOD UR NOTARY BHBLIS HOT Aa Cay MSS eta HPBLANGS 3, OSA 8} 1M Ds oa XR ee 99832985 PTMEWAUS OFWARGHANENRAUPTR No osa272 #11.+ 55.20% IEP No.297192; “ian-0. > 05201, > War-~ is the contention between two states, through their aimed forées for the purpose of overpowering the other and imposing Stct¥ cBHtition ef peace as the victor pieases. © War does nol mean the mere employment of force; if @ nation declores wor against another, war 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. @ ® (Just Wor Theory {ius bellum iustum)- is a doctrine, ako refered to as a tradition. of miktary ethics studied by theologians. ethicists. policy makers and miltary leaders. The purpose of the decitine is fo ensure war is morally justifiable through a series of crileria, ail of which must be met fer a wor fo be considered just, The criteria are: split into: 1. Jus_ad ium (Latin for “right fo war") is a set of critena that are to be consulted before engaging in war, in order to determine whether entering into war is permissible; thai &, whether itis a just war. The tight to go to war. Is sometimes considered a part of the laws of war, but the term “laws of war” can also be considered to refer to ‘jus in bello’, which concerns whether a waris conducted justly (regardless of whether the initiation of hostiities was just). An international agreement limiling the justifiable reasons for a country to declare war against another is concemed with ‘jus ad bellum’, . ‘Jus_in_bello’ o: ‘Intemational Humanitarian Law’ — rofers to tho limits to acceptable wartime conduct or the ‘right conduct in war’ or the moral conduct within war. 3. ‘Jus posi bellum’ (Latin for “Justice after war”) - deals with the iermination phase of war. The idea was writen about by Brian Orend to reflect the need for rules fo end wars completely and fairly. |i deals with the moralily of postwar sefflement and reconstruction. Purpose: Provide assurances to combatants about the terms necessary fo end a conflict.Provide terms for the end of war. once the rights of a political community have been vindicated, further continuction of war becomes an act of aggression. Provide guidelines for the construction of peace treaties. Prevent continuous fighting throughoul peace negotiations by beligerents irying to gain more favourable terms. Proveni draconian and vengeful peace terms; the rights a just state fights for in o war provide the constraints on whet can be demanded from the defeated belligerent. oS dud Seftiement of a Just War, = = Unjust gains from aggression must be eliminated = Punishment agains! the aggressor in two forms: + Compensation to the victim for losses incumed = War crimes trials for the aggressor Security for the victim against future atiack in the form of demiiitarization or political rehabilitation Terms for settlement should be measured and reasonable ruling out unconditional surenders Terms for settlement should be made public Leaders, soldiers, and civiians must be distingushed. + Leaders of the aggressors must face fair and public war crime tab, if necessary * Soldiers from all sides of the conflict must be hold accountable for war crimes * Civilians must be reasonably immune from punitive measures ruling out sweeping socio-economic sanctions. Declarations of war Acceptance of surrender Treatment of prisoners of war Military necessity along with distinction and proportionality The prohibition of certain weapons that may cause unnecessary suffering. sures> Outlawry of War ~ Condemnation of war on an international scale. © Covenant of the League of Nations, which provides cencitions for the right to go to war. 0 Kellogg-Briand Pact of 1928 - also known as the ‘Geneva Treaty for the Renunciation of War’, ratified by 62 States ~ forbade war as an ‘instrument of national policy’, © Charter of the United Nations. Arficle 2 of which the threat or use of force against the tertiforial integrity or political independence of a Stato. > Commencement of War: (aj Declaration of war (Hague Convention of 1907); (b| Rejection of an uitimatum (Hague Convention): (c) Commission of an aci of force regarded by one of fhe beligerents as an act of war > Effects of fhe Outbreak of War: © The TewelenPed belligerents and are superseded by the ‘Laws! States are govemed by the ‘Laws of Neutratity’ the belligerents. ! cease fo regulate the rolations between the while thd their dealings with © Diplomatic and consular relations are terminated, and ther tespective representatives are alowed to return to their own countries. © Treaties of political nature are automatically cancelled, except those intended to operate during the war. © Multipartite treaties dealing with technical or administrative matter lke postal conventions, are merely suspended as between the belligerents. [Techi v. Hughes, 229 NY 222, where the plaintiff, a US citizen who had become the wife of an Austrian, was allowed lo inherit from her father's estate pursuant to the treaty between Austria and the US. Individuals are impressed with enemy character: = ‘Nationality Tesi’ — if they are nationals of the other beligerent, wherever they may be:= ‘Domiciliary Test’ - if they are domiciled aliens in the tenitory of the other belligerent on the assumption that they contribute to its economic resources: * ‘Activities Test’ - if, being foreigners, they participate in the hosliilies in favour of the other belligerent. © Corporations and other juridical persons are considered enemies where ihe controling stockholders are nationals of the other belligerent, or if incorporated in the territory or under the laws of the other belligerent, and may not be allowed to continue operations. * Filipinas Compania de Seguros v. Christer Huentetd, 89 Phil. 54 - where the respondent corporation, controlled by German cifzens, although oiganized in the Philigpines, became an enemy corporation upon the outbreak of war, and thus could not recover under an insurance policy. «Haw Pia v. China Banking Corporation, 80 Phil. 604 — where payment made by Haw Pia to the Bank of Taiwan during the Japanese occupation, the Jailer having been auihorzed by the Japanese Miflary Administration to liquidate the assets of all enemy banks {including China Banking], was valid, and exiinguished Haw Pia's obligation fo China Banking. 9 Enemy public property found in the tenitory of the other beligerent at the outbreak of the war is subject fo confiscation. private ploperty & subject fo requisition (sequestration); private properly at sea may be confiscated, subject fo certain exceptions. [Brownell v. Baviista, 95 Phil. 853). + The Staie may in time of war, authorize and provide for seizure and sequesiration, through executive channels, of properties bolioved to be enemy-owned, if adequate provision is made for their return in case of mistake. * Participants in War: a) Combaiants ~ those who engage directly in the hostilities, and {b) Non-combatants ~ those who do not, such as women and children.>» Combatants moy be: ® Non privileged - like BBS, who under false pretenses try to obfcin vital information from the enemy ranks and who, when caught, are not considered ‘prisoners of war'. = Privileged — who, when captured, enjoy the privileges of ‘prisoners of war', which includes: © Regular armed forces © Ancillary services, like doctors and chaplain o Levees en masse ~ inhabitants of unoccupied leritory who, on approach of the enemy, spontaneously fake up arms fo resist the invading troops without having fime to organize themselves, provided they carry arms openly and observe the laws and customs of war. © franc tieurs, or guertilias - provided they are commanded by a person responsible for his subordinates. wear a fixed distinctive emblem recognizable at a distance, carry their arms openly and conduct their operations according fo the laws and customs of war. © Officers and crew of meichant vessels who forcibly resist attack. > Rights of Prisoners of War ~ under the 1949 Geneva Conventions, they are to be treated humanely, not subjected fo any form of torture, allowed te communicate with ther families, receive food, clothing, religious articles, elc. > Spies — an individual is deemed o spy only if, acting clandestinely or under false preienses, he obtains or seeks to obtain information in the zone of operations of a belligerent, with the intention of communicating to the hostile party. When captured, may be proceeded against under the municipal iaw of the other belligerent. although under the Hague Convention may not be executed without a trial. But if capiured affer he has succeeded in ing his army, he must be ireated as a prisoner of war.> wy + Scouts, or soldiers in uniform, who penetrate the zone of operations of the hostile army fo obtain information, are not considered as spies. > Mercenaties ~ Protocol | fo the 1949 Geneva Conventions provides that mercenaries shall aot hove the rights of combatants or of prisoners of war. To be considered a mercenary: {a} specially recruited to fight for a pariicular armed conflict, i. combatant, not as an adviser; (b) must take direct parf in the hosiiities: {c) motivated essentially by the desire for personal gain and, in fact, is provided material compensation substantially in excess of that promised or paid to combatants of similar rank and. functions in the armed forces of that party. ‘Theater of War' - is the place where hostilfies are actually conducted; while 'Region of War — a place where the beligerents may lawiuly engage each other. This would comprise ther own territories and ihe high s0as, oxcluding only noutral temiiories. Belligerent Occupation - an incident of war which occurs when the tenitory of one belligerent is placed under the authority and control of the invading forces of the other belligerent. Effects of Beligerent Occupation — does not result in transfer or suspension of the sovereignly of the legitimate government. Only the exercise of sovereignty and noi the sovereignty itself, & hansferred to the belligerent ‘occupant. [Laurel v. Misa, 44 0.6. 1176]. = Principle of Military Necessity - the beligerent may employ any amount of force to compel the complete submission of Ihe enemy with the least possible loss of lives, lime and money. This justified the atom bombing of Hiroshima and Nagasaki. © Such other measures as sieges, blockades, bombardments and devastation of properly, which may involve direct hardships on the non-combatants within the area, are underiaken under this principle. [Hague Convention No. IV, 1907. Regulations. Art. 25-27]= Prineiple of Humanity — prohibits the uso of any moasure that is not absolutely necessary for the purposes of the war, such as the Pokoning of wells, use of dumdum or expanding bullets and ‘asphyxiating gases, the destruction of works of arts and property devoled fo religious and humanitarian purposes, the bombarding of undefended places and alfack on hospital ships. o When an enemy vessel is sunk, the other belligerent must see to tho safety of tho persons on board. Pillage is prohibited. The wounded and sick must be humanely treated without distinction of nationality by the belligerent in whose power they are. The Humeniferian Convention in Armed Confiicts [1977] - affirmed the principles that the right of the parties to adopt means of injuring the enemy is not unlimited; parties are prohibited to launch attacks against civiian population as such; and a distinction must be made at all times between persons taking part in the hosilfies and members of the civilian population, fo spare the laifer as much as possible.[Ihe humanitarian rules of warfare should still govern in cases of the enforcement action underiaken by the UN.] = Principle of Chivalry — prohibits the beligerenis from the omployment of perfidious or reachorous methods in the conduct of hosttities, such as the illegal use of Red Cross emblems to throw the enemy off-guard prior fo an attack, 5 Ruses and stratagems ate allowed provided they do not involve the employment of treacherous methods. o Flags are not allowed in land warfare but war vessels may sail under a flag noi their own, subject only to the requirement that they haul it Gown and host their own flag before attacking. © Espionage is not prohibited under intemetioncl law notwithstanding thet if involved some deception. ‘ Beiligeieni Occupation - the temporary military occupation of the enemy's tenitory during the war. The occupant need not have its feet planted on every square foot of teritory, provided it maintains effective control and mifary superiority therein, being able fo send, in case ofaitack, sufficient forces to assert iis authority within a reasonable time. [Tan Se Chiong v. Director of Prisons, 1-5920, June 25, 1955} 0 ESSE No change in sovereignty, bul the exercise of the powers of sovereignty is suspended. Political laws, except the law on treason, ‘ore suspended; municipal laws remain in force. [Laurel v. Misc, 77 Phil, 854} * Re-establish or continue the processes of orderly administration, including the enactment ct laws. = Adopt measures for the protection of the inhabitants. + Requisition (sequester) goods [with proper cash for future payment} and services in non-milifary projects. [Note that conscription is prohibited} = Demand foxes and contributions to finance military and locai administrative needs. Foraging ~ the actual taking of provisions for men and animals by the occupation troops where lack of time makes it inconvenient to obicin supplies by usual or ‘ordinary means. However, compensation must be paid at the end of the war. = Issue legal currency. * Use enemy property, whether public or private, but private property is subject fo indemnification or retum at the end of the war. [Republic v. Lara, 96 Phil, 170}. + May promulgate new laws, poliical and non-political, provided they do not coniravone the generally accepted principles of international law. © The Right of Angary - the right of a beligerent State, in cases of extreme necessity. to destroy or use neutral property on its own or on enemy temttory, or on the high seas. A belligerent may, upon payment of just compensation, seize, use or destroy, in case of uigent necessily for purposes of offense or defense, neutral property found in its temrtory, in enemy tenitory, or on the high seas.© Power of Belligereni Occupant Over Immovable Public Property - it shail be regarded only os an adminisirator or usufructuary of public buildings, roal ostato, forosfs, agricultural estates belonging to the hostile State and sitvaied in the occupied tenitory. [Banaag v. Singson Encamacion, GR. No. 493, April 9, 1949 — where a lease for five years granted by the occupation government in 1942 over certain municipal fisheries was deemed automatically cancelled upon the re-estabishment of the Commonwealth Govemment in 1944, + Non-Hoslile Infercourse. ae Hag of Truce - white in coler, indicates the cesre to communicate with the enemy: ihe agent called ‘parlementaire’, enjoys inviolabilty. and is entrusied with the duty of negoticting with the enemy, & Cartels — agreements to regulate intercourse during the war, usually ‘on the exchange of prisoners of wer. & Cartel Ship —is a vessel sailing under a safe conduct for the purpose of carrying prisoners of war. [Fenwick, 575; Wilson and Tucker, 295] Passport ~ waitten permission given by the belligereni government fo the subjects of the enemy fo iravel generaly in beligerent territory. Safo-conduet — permission given fo an enemy subject or to an onemy vossol allowing passage botwoen defined poinis. Safeguard — protection granted by a commanding officer either to enemy persons or properly within his command, usually with an escort or convoy of soldiers providing the needed protection. [RRS WAGs — permission given by competent authority to individuals to cary on trade though there is a siate of war_ + eee. ¥ Suspenson of arms - temporary cessation of hostilties by agreement of the local commanders for such purposes as gathering of the wounded and burial of the dead.£ Armistice — suspension of hostilities within a certain area or in the entire region of the war. agreed upan by the beligerents, usually for the purpose of arranging the terms of peace. Y Cease-fire - unconditional stoppage of all hostilities, usually ordered by cn international body. f Truce - conditional cease-fire for political purposes. Capitulation - surender of military forces, pioces or districts, in @ accordance with the rules of military honor, = Simple Cessation of Hostiiies ~ usualy, the [DOnUIPSSeeIm with respect to properly and ferrilory possessed by the belligerents, is ppled. War may end simply because the beligerents are no longer wiling to continue fighting. [ja) Between Sweden and Poland in 1716; (b) France and Spain, 1720; (c] Spain and its American colonies, 1825; {d} France and Mexico, 1867] 0 When war ends in this way, property or fernifory in the possession of the respective belligerenis upon the termination of the hostiliies are retained by them under the ‘Principle of Ufi Possidetis'. This is fo be distinguished from an agreement for the ‘Status Quo Ante’, which calls for the complefe restoration fo their former owners of properly or territory that may have lawfully changed hands during the war, with tho exception of prize and booty. = Uti Possidetis (latin for “as you possess”) - is a principle in international jaw that temtory and other property remains with its possessor al the end of a conflict, unless otherwise provided for by a realy; if such a treaty does not include conditions regarding leh possession of properly and tertitory taken during the war, then the principle of uli possedit’s wil prevail, = Originating in Roman law, the phrase is derived from the Latin expression uti possidetis, ita possideatis, meaning, “may you continue fo possess such as you do possess” (lit. “as you possess,thus may you possess"}. This principle enables a belligerent parly fo claim tonrtory that it has acquired during war. ® Conclusion of a Negotiated Treaty of Peace — a treaty concluded by the belligerents when neither s able to effect a decisive victory ‘over ihe other, as wos ihe case with Great Britain and the United States when they eniered info the Treaty of Ghent fo end the War of 1812. = Defeal of One of the Belligeren! — followed by a dictated trealy of peace, or annexation of conquered tertitory. The defected belligerent may surrender either conditionally or unconditionaly. In the former case, a ireaty of peace is concluded which makes provision for the conditions specified in the suronder. In the latter casa, the victorious belligerent usually sues a unilateral declaration announcing the end of the wat, to be followed by a treaty of peace in which the reparation to be made by the vanquished state and the disposition of ifs femifory and property are dicicted by fhe victorious state. & EGER - the revival or reversion to the old laws and sovereignty of jenitory which has been under belligerent occupation once control of the belligerent occupant is los! over the terttory affected. [Kim Chan v. Valdez Tan Keh, 75 Phi. 113]. = (RGSS — tho right by which ‘persons or things taken by the enemy are restored fo the former State on coming actually into the power 07 the nation to which they belong.” © Ako signifies the reinstatement of the authority of the displaced goverment once control of the enemy fs lost over the temitory affected, Thus, upon the end of a belligerent occupation, the laws of the re-established government cre revived and all the illegal acts of the belligerent occupant, as welll as its lawful acts of a political character, are invalidated. = Example: [a] Taxes paid fo the occupation government cannot again b collected by the legitimate govemment upon ifs restoration, as it was within the competence of the former tocollect taxes while the occupation was effective. (bl A conviction for a crime against the occupying forces, while vatic during the occupalion, woukd automatically faf fo the ground upon the revival of the lawful government as such conviclion is of a political complexion = Distinguished from HERORUSSIGEIE — the iatter alows retention of properly or territory in the beligerent's actual possession at the time of the cessation of hostilities. ® Judicial acts and proceedings during the Japanese occupction which were not of political complexion remain vaid even affer the liberation of the Philippines [Ognir v. Director of Prsons, 80 Phil. 401] @ WAR'CRIMES - acts for which soldiers or other individuals may be punished by the enemy on capture of the offender. = War criminal — any person, whether a civilian or a member of the armed forces of the stale, who commis an act thet violates a rule of international faw governing armed contiicts. = The Philippines had the authority to try war criminals after WWI. [Kuroda v. Jalandoni, 42 0.G. 4282: Yamashita v. Styer, 75 Phil. 563). » §@GHBIN is non-participation, directly of indirectly, ino war between contending belligerents: ‘Gamma the result of a treaty wherein the conditions of the slaius are cgreed upon by the nevtraized state and fhe other signatories. ~ Exists only during war and is governed by the Lew of Nations; the other exists both in times of peace and war, and governed by the agreement entered info by and between the parties. © Neuiatzed 'States|(SwitzeHand) — « permanent neutral or neutralzed state is one whose independence or integrity is guaranteed by other states, usually the Great Powers, Under the condition that such state binds itseif never foparticipate in an armed contlict or military operation except for individual self defense. © The permanent neutrality of Switzerland was guaranteed under the ‘Eight Power Declaration’ of March 20, 1815. 0 IN@UFGIf or 'Nontaligned "States — states which sided with neither the democracies nor the communits in the Cold Wer. o ‘Nom#belligereney’ - sometimes been used to describe the slalus of a state which did not toke port in military operations but which did not observe the duties of a neutral, This is a status mid. way between a neutral and a beligerent, and is not recognized in intemetionel law. = Neuiroliyuhder! the) UN Charter — absolute noutralty cannot oxét among UN member States in view of the enforcement action which the UN may undertake. sé RULESTOF NEUTRALITY- Neutrals have the right and duty. > To abstain from taking part in the hosiiities and irom giving assistance fo either beligerent by: f Sesser tefers to goods which. although neulral properly, may be sezed by a belligerent because they are useful for war and ore bound for a hostile destination. 4/0). Corie nees ~ a8 guns or ammunition, which ore useful for war under ail cireumstances; 6). ‘Cenhebend — such as food and clothing, which have both civifan and military utlity: or under the "oo 1) one such as medicines, which are exempt from the law on contraband for humanitarian reasons. = goods infenced for civilian use which may ulfimately find their way to and beconsumed by belligerent forces may be seized on tho way. + Bée#ine oF infection — innocent goods shipped with contraband may also be seized. ~ Dochina’ of Continuous Voyege/Continuous Transport ~ Goods reloaded ai 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 the ‘doctrine of ultimate consumption.’ ¥ Engaging in Unenevird! Sewice’ - acts of a more hostie character than catriage of contraband or breach of o blockade, undertaken by merchant vessels of a neutral state in cid of any of the beligeronts, e.g. transport of individual passengers who are member of the armed forces of the enemy. = How many vessels from one belligerent may stay in neutral waters at the same fime? « Not more than three vessels from any belligerent shall be allowed simulfaneously in the same neutral port or waters. [Art 15, id] = May neutral waters be used as asylum for belligerent vessels under pursuit or attack?© No. Any manofwar entering a neutral port for thus person should be asked fo leave and, if it refuses, should be rendered incopable of putiing fo seq for the duration of the war, ifs officers and crew being interned by the neutral siate. = What should be done with beligerent aircraft that was forced to iand on neutral territory? o The gicraff shovid be delained and its officers and crew inferned. [QREREEPIEE SES - means fighting between the ainod forces of af ieast two Siaies (it should be noted that wars of nations! liberation have been classified as intemational armed conflicts). The Geneva Conventions and Additional Protocol | apply. is infended principally for the paries to the conflict and protects every individuel or category of individuals not or no longer actively involved in the conilict, i e: = Wounded or sick miltary personne! in land warfare, and members of the armed forces’ medical services; * Wounded, sick or shipwrecked miltary personnel in naval warfare, and members of the naval forces’ medical services: = Prisoners of war,+ The civilian population, for example: © Foreign civilians on the lenitory of parties to the contflici, including refugees; © Civilians in occupied tertitories; © Civilian detainees and intemees; © Medical and religious personnel or civil defence units. » SESEREGETERGMEESMCeaie! ~ means fighting on the teritory of State between the and 5 or between i To be considered a non- intemational armed conflict, fighting must reach a certain level of intensity and Article 3 of the Geneva Conventions and Protecot il apply. => (UN is intended for the armed forces, whether regular or not, faking part in the confict, and protects every individual or category of individuals not or na longer actively involved in the hostilfies, for example: * Wounded or sick fighters: * People deprived of their freedom as a result of the conflict; = The civilian populotion: + Medical and religious personnel. > (SRR - are characterized by a serious disruption of internal order resuling from acts of violence which nevertheless are not representative of an armed confict (fois, struggles belween factions or against the authorities, for example) 1) shaennaniten , uv to situations of violence nof amounting in intensity to an armed conflict. Cases of this type are governed by the provisons of |! #7. “\\ and such measures of domestic legislation as may be invoked. » [EEISSEERGEMIIEE -ormed groups take advantage of the political vacuum caused by the partial, and sometimes even toil, weakening or breakdown of State structures in an aitempt fo grab power. International Humanitarian Lew still applies, in which the civilian population in particular 's exposed to violence. requires all armed groups,whether in rebellion or not, to respect individuals who have laid down ther arms and those, such as civilians. who do not toke parl in the hostilities. (EEEINSSEESeS - conflicts aimed al asserting group identity that often seek fo exclude the adversary through ‘ethnic cleansing’. This consists in forcibly displacing or even exterminating populations. Under the effect of spiraling propaganda, violence and hatred, this type of confict strengthens group feeling to the detriment of the existing notional identity, tuling out any possbilty of cooxstence with other group. IHL sill applies in this situation. Minimum provisions applicable to an armed conflict not of an international character occuring in the territory of one of the High Coniracting Parly, of which each Party must comply: 1) Persons taking no active part in the hostilities, including members of armed forces who hove laid down ther arms and those placed hors de combat by sickness. wounds, detention, or any other cause, shall in oll circumstances be treaied humanely, without any adverse distinction founded on race, colour, religion © faith, sex, birth or wealth, or any other similar criteria, » To this end, the folowing acts are and shall remein prohibited ai any lime and any place whatsoever with respect to the above-mentioned persons: + Violence to fife and person, in parlicular murder of all kinds, mulilation, cruel treatment and torture; ~ Taking of hostages: ~ Outrages against personal dignity, in particular humiliating and degrading treatment: ~ The passing of sentences and the carrying out of executions without previous judgment pronounced by regularly constituted court, affording aif the judicial guaraniees which ore recognized as indispensable by Civiized peoples.2) The wounded and sick shall be collected and cared for. > An impartial humanitarian body, such as the Intemational Committee of the Red Cross, may offer its services to the Parties fo the conflict. + The Parlies fo the conflict should further endeavour fo bring into force, by means of special agreements, all or part of the other provisions of the present Convention. Essential Rules of Intemational Humanitarian Lew: ~ The parties to @ confict must at alll times distinguish between the civilian population and combatants in order io spare the civilian population and civilian property. ~ Neither ihe civilan population as a whole nor individual civilian may be attacked. Attacks may be made solely against military objectives. + People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and menial integrity. Such people must in ail circumstances be protected ond treated with humanely. without any unfavourable distinction whatsoever. “+ It's forbidden fo kill or wound an adversary who surrenders or who can no longer take part in the fighting. - Neither the parties to the conilict nor members of their armed iorces have an unlimited right to choose meihods and means of warfare. + It is forbidden fo use weapons or methods of warfare that are fkely to cause unnecessary losses or excessive suffering. 7 The wounded and the sick must be collected and cared for by the party fo the conflict which has them in their power. + Medical personnel ond medical establishments, transporis and equipment must be spared.+ The red cross or red crescent on a white background & the distinctive sign indicating that such persons and objects must be respected. * Captured combatants and civilians who find themselves under the authority of the adverse party ore entitled to respect for their ives, their dignity, their personal rights ond their political, religious and other convictions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid. They must enjoy bosic judicial guarantees. 2 To limit the suffering caused by war by protecting and assisting its viciims as far as possible. 2 The law addresses the reality of a contlict without considering the reasons for or legality of resorling to force. 2 It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as ‘JUS IN BELLO (LAW IN WAR). 2 Is provisions apply to the warring parties imespective of the reasons for the conflict and whether or not the cause upheld by either party just. 2 Itdoes not involve in the denunciation of guilty parties as that would be bound fo arouse controversy and paralyze implementation of the law, since each adversary would claim to be a victim of aggression. 7 Ttisintended to protect war victims and their fundamental rights, no matter to which party they belong. The reason why ‘JUS IN BELLO’ must remain independent of “JUS AD BELLUM’ or ‘JUS CONTRA BELLUM (law on the use of force or lawon the prevention of war.) = (nitedlNations | Charten(1945) - “The members of ihe Organization shall abstain, in ther international relations, from resorfing to the threat or use of force (...].”~ Coercive measure - aimed at restoring peace — against a State threatening international security; = Peace ~ keeping measures in the form of observer or peace- keeping missions. Right of Peoples to Self Determination: 2» “recognizes the legitimacy of the struggle waged by peoples under colonial domination fo exercise their right to self determination and independence |. are people who have fled their couniries. According to Article 1, 1951 UN Convention of the Status of Refugees, ‘refugee’ applies to ony person who ‘owing fo well-founded fear of being persecuted for reasons of race, religion. nationafity. membership of a particular social group or poiticel opinion, is outside the country of his nationality and is unable, or owing fo such fear, & Unwiling lo avail himself of the protection of that couniry; or who, not having a nationality and being outside the country of his former habitual residence as a resut of such events, is unable, or owing fo such fear, is unwilling fo return to it.” 1969 Convention of the Organization of African Unity and the 1984 Cartagena Declaration on Refugees — include people fleeing events which seriously disrupt public order, such as armed conilicis and disturbances. > Enjoy first and foremost the protection afforded them by refugee law and the mandate of the Office of the United Nations High ‘Commissioner for Refugees (UNHCR) and the IHL. = are those who have not left their country’s temtitory. IDPs are protected by various bodies of law. principally national jaw, human rights law and, if they cre in a State undergoing armed confict, international humanitarian law. 4 WARCRIMES - are understood to mean serious violations of Intemational humaonitarian law committed during international or non-intemational armed conflicts and internal armed conflicts. One single act mayconstitute a war crime. [Sources: {a} Statute of the international Military Tribunal established ofter the WWI in Nuremberg, {b) Geneva Conventions and their Additional Profocok, (c} Statutes and case Law of the Intemational Criminal Tribunais for the former Yugoslavia and Rwanda, {d) Statute of the intemational Criminal Court] Wilful kiling of a protected person (e.g. wounded or sick combatant, prisoner of war, civiian); » Torture or inhuman treatment of a protected person; > Wifully causing great suifering to, or serious injury to the body or health of, a protected person: > Atiacking the civilian population: > Unlawful deportation or transfer; 2 Using prohibited weapons or methods of warfare: » Making improper use of the distinctive red cross or red crescent emblem or other protective signs: > Killng or wounding perfidiously individuals belonging to a hostile nation or army: » Pillage of public or private property. & Humanitarian Law applies in situations of armed conflict, whereas, Human Rights, or at least some of them, protect the individual ot all fimes, in wor and peace alike. > Some human fights treaties permit governments to derogate from certain rights in situations of public emergency. No derogations arepermitted under IHL because it was conceived for emergency situations, namely armed conflict. » Universal Declaration of Human Rights, 19748 > Convention on the Prevention and Punishment of the Crime of Genocide of 1948 > Intemational Covenant on Civil and Political Rights of 1966 > Intemational Covenant on Social and Economie Rights of 1966 + Convention on the Elimination of All Forms of Discrimination against Women of 1981 + Convention cgainst Torture and Other Cruel, Inhuman. or Degrading Treatment or Punishment of 1984 » Convention on the Rights of the Child of 1989. > European Convention on Human Rights of 1950 2 American Convention on Human Rights of 1969 2 Affican Charter of Human Rights and People's Rights of 1981. 4 HG@gigeelilfomeniRans ~ Fundamental rights that States are bound to respec! in all circumstances — even in the vent of a conflict or disturbances. Certain fundamental rights laid down in each treaty which must be respected in all circumstances and may never be waived regardless of the treaty. Includ > The right to tite 2 The prohibition of joriure and inhuman punishment or treatment » Slavery and servitude + The principle of legality and non-roiroa ty of the law. > Allacks on civilians and civilian objects (Arts. 51, para. 2 and 52, Protocol |; and Art. 13, Protocol Il)Indiscriminate attacks (Art. 51. par. 4. Protocol I): Allacks on places of worship (Ari. 53, Protocol Protocol Il}; Allacks on works and installations containing dangerous forces (Art. 56, Protocol Ir and Art. 18, Protocol Il); The taking of hostages (Art. 75, Protocol I; Art. 3 common to the four Conventions; and Art. 4, par. 2b, Protocol Il}; Murder of persons not or no longer faking part in hostilities (Art. 75, Protocol I; Art. 3, common to the four Conventions; and Art. 4, par. 2a. Protocol il). and Art. 16,