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The Fraternal Order of St.

Thomas More
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PUBLIC INTERNATIONAL LAW

GENERAL PRINCIPLES

Schwarzenberger DEFINES:
 International Law is the body of legal rules which apply between sovereign states
and such other entities as have been, granted international personality.

 Body of rules and principles which are recognized as legally binding and which govern
the relation of the states and other entities invested with international legal personality.

 International law is concerned actually with the relation of the states with other states
and those entities invested with legal personality.

 International Law in
French – Droit Desgens
German – Volksrreght

 Body of rules and norms that regulates the activity carried on outside the legal
boundaries of the states

Is International Law binding?


Is there a supreme body, which oversees another or other states to see to it that
they comply with International Law?

If you come to think of it there is none, even the United Nations cannot oversee
everything.
There is nothing that tells the state that it is wrong
There is no international legislative body that will act on international law. We don’t
have a Congress of the World
There is no accordingly international executive who will have the power to enforce
international law. That is why there’s a question if International Law is really a law.

1. It is a true law, because it provides for sanctions


 State and individuals regarded as such state and individuals requiring a law and also
a common belief in the inherent reasonableness of the law; accordingly a common
conviction of the keen observance will redound to the public benefit.

2. It is a true law because it provides for the enforcement in cases of violation.


 There is enforcement under international law. And how is international law
enforced? Through international organizations such as the United Nations. Of course
it has its own weaknesses which we will explain later on our discussion.

Public International Law - Atty. Israelito Torreon



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There is also a special arbitration tribunals created by agreement


 As you will learn later that party to a certain agreement can agree from arbitration
counsel. If there is a conflict as to its definition they can submit it to the arbitration,
then the arbitration, then the arbitral body shall have the power to enforce
obedience upon the parties concerned. They can so provide that in their agreement.

3. There is also fear of retaliation or reprisal.


 If you do not follow international law then you may be retaliated upon by the
Machinery of the United Nation such as the Security Counsel, General Assembly if
they provide for resolutions for you to be declared as an international pariah.

 The old definition of international law is that it is conferred as a Law of Nation that it
was always been a traditional name, it is accordingly, it is known before as Law of
Nations.

3 GENERAL CLASSIFICATIONS OF LAW OF NATIONS

1. Universal Law
The law which is thought to be so fundamental or basic, that it is binding upon the
whole state, and the community of nations whether we have individually consented to it or not.

Tel Oran v. Libyan Arab Republic

This is a case involving an action against the Palestine Liberation


Organization for the act of terrorism. This was the case whereby the
International Court of Justice have the occasion of defining “torture” as an
official policy whether or not it violates international law, whether or not
it violates national law or universal law.

According to the ICJ, Yes, even if the state do not agree to the so
called International Convention of Torture and other Cruel Inhuman or
Degrading Treatment or Punishment or the Torture Convention (June 26,
1987), this convention is binding upon all states whether they have signed
in or not. International law Prohibition against Torture is accordingly not
disputed. If it is a state policy, if it is an organizational policy then it must
be struck at as intrinsically invalid

2. General Law
Body of norms derived from the conduct and practices of state in their dealing between
each other.

Public International Law - Atty. Israelito Torreon



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DIFFERENCE:
Universal Law is binding even if a particular state does not consent to it while,
General Law is binding only if the state consents to it.

3. Particular Law
Is a law that is binding upon a particular state, because of the conduct and practices of
that particular state

4. Doctrine of Intertemporal Law


States that legal practice regarded as lawful in the past will continue to be respected in
the future.

DIVISIONS OF INTERNATIONAL LAW


1. The LAW OF PEACE governs the normal relation of the state.
2. The LAW OF WAR governs the relation of the state in war, or the duration of hostility.
3. The LAW ON NEUTRALITY governs the relation of the belligerents & those not
involved in the war.

Why must we know the divisions of international law?


 Because each division is circumscribed with different parameters of international law. If
in times of war, the law on war will prevail; such law will determine who shall be
considered as combatant, who shall be considered as non-combatant.

DISTINCTION: PUBLIC INTERNATIONAL LAW V. CCONFLICT OF LAWS


 PIL governs the relation of the states and other entity invested with international legal
personality.
 COL is actually part of municipal law, it is part of particular law, or that law w/c is
applicable only in a certain case, that part of the law of the state which determines
whether in dealing with the factual situations involving a foreign element, the law of
other countries will not be recognized.

THEORIES OF INTERNATIONAL LAW

A. MONIST
 Because they believe in the oneness or unity of all law.
 They are believers of the universal law, there is accordingly no real difference, or
accordingly they represent manifestations of one and the same concession of the law.
 (SELZEN) they maintain a single-legal order in which all norms exist in the form of
hierarchy in which ----------- occupies the highest opinion of the matter.
 A single legal order in which all norms exist, that’s why there is oneness or unity of all
law.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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B. DUALIST
DISTINCTION: INTERNATIONAL LAW V. MUNICIPAL LAW
1. Municipal law is issued by a political superior for observations by those under its
authority whereas international law is not imposed upon but simply adopted by the
states as common rule of action among themselves.

2. In International Law the rules are international in nature. It applies between and
among states whereas in municipal law, the law is national or municipal in character. In
cases of dispute or conflict, the resort is international mode of settlement, whereas if
municipal, resort is municipal tribunal.

3. Order from International Law are primarily courts develop in a community state, and
from law making treaties and convention, whereas municipal courts are derived from
legislative enactment or certain cases from customs develop in the territory of the state.

4. International Law regulates primarily relation among members the community of state
or entities invested with international legal personality whereas municipal law governs
relation among individuals within the belligerent state and relations between them and
their government.

5. International Law there is no central authority comparable to national government


under municipal law; there is no authority to ensure obedience on its command whereas
under municipal law any individual or entity is subject to the police power of the
government in forming the domestic law.

DEFINITION: COMITY
Comity comprises those acts, usages, and rules of goodwill; etiquette and customs
treatment that are due from one state to another which are based from mutual self respect.

Out of good will or out of courteous treatment due from one state to another and
therefore they are not legally enforceable.

UN CONTROVERSY

During the incumbency of Mayor Rudolph Guijani of New York City


where the UN Office is located, the may has the biggest problem – TRAFFIC –
because they are diplomats they would defy it and once the NYP would run after
them, they would just their diplomat’s I.D. Can you arrest them? They can
invoke the Vienna Convention, which accordingly stated that diplomats are not
subject to municipal law.

How did the UN resolve that?

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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They conducted a meeting before a Gen. Assembly, Mayor Guijani


pleaded to please respect the traffic laws of the State of New York. Thereafter,
diplomats are slowly following the traffic rules.

FED REP OF GERMANY 1971

The sources of international law are the treaties and convention; Decisions
of national court may be persuasive to international issues

During that time, there was accordingly an international law, which


requires giving special traffic parking privileges to diplomats

And then diplomats in Germany before were allowed to park even on


public highways. A west German got fed up, he filed a case before the traffic
authority which provided a special treatment to diplomats allowing them to park
in public highways, in the lower court he was not sustained, but in the Federal
Public of Germany, an issue was directly impose,

Is there a basis in international law for giving diplomats special parking


privileges, and according to the Federal Republic of Germany?

No. International legal obligations can be created in a treaty or a custom.


Treaties are formal agreement between States; customary international law is
created in the same way as domestic customary law. That which, a custom must
be followed to an extended period of continuous detail & 2ndly be accompanied
by conviction of those adopting it that they are observing an unwritten rule of
law.

No legal obligations are created where a state only follows a general


practice, which they do not regard as binding. Where a practice is followed a
gov’t does not fear sanctions, or claims for damages but RETORTION.

(DEFINITION)
RETORTION is the imposition of a light action in response by the injured
nation. It happens when the rules of courtesy are not observed. Such rules
however are regarded as nubile fiction and not of as a legal

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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Violation of a comity does lead to an international sanction, only gives


rise to retortion.

Accordingly this is a more practice, a general practice which grants


diplomats special parking privileges. BUT this practice is not regarded by any
country as binding.

AUSTRIAN CONSTITUTIONAL COURT

It may be a general practice but that practice is not regarded as binding.


They are observed merely as a matter of courtesy – COMITAS GENTIUM. They
are only extended as a matter of courtesy. The diplomatic parking privilege in
international law is not a matter of right but as a matter of Goodwill. Hence, it is
not a law because the state does not regard it as something they are required to
respect. It is a therefore not legally enforceable.

HISTORY OF THE DEVELOPMENT OF THE INTERNATIONAL LAW

Accordingly the concept of international law has its archaic beginnings in Rome, Romans
before conquer the world and in order to maintain order within its territory as well as its colony
they have to develop order or rules, as to establish order, they develop what is called as jus
civili or the civil law or the law that regulated Roman citizens and this was the law which was
applicable in cases of conflict between Roman citizens only.

Next they apply the law of nations or what is called an jus gentium this would apply to
the affairs among non-Romans as well as dealings among non – Romans and Romans.

JUS NATURALE
 natural law
 the supreme law; the universal and immutable law, and accordingly the
higher law than jus civile and jus gentium
 discoverable by reason
 prevailing law during the Roman time

1. DURING THE MEDIEVAL TIME


A Christian philosopher in the name of St. Thomas Aquinas, once a champion of natural law.
He believed that natural law is just but a by-product of the Divine Law which is common to
all people and it, is accordingly revealed in the scriptures

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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2. RENAISANCE
Foremost writers that time are Francisco De Vitoria as well as Francisco Suaren

14TH – 16TH CENTURY


 Natural law is the transcendental source of international law; it is derived from right
reasoning and revelation.

3. JOHN LOCKE
 English naturalist philosopher
 He believes that the government is organized to protect the life, liberty and property
of individuals

NATURALIST SCHOOL OF THOUGHT


By De Vitoria and Suaren
 There is a natural and universal principle of right and wrong independent of any
mutual intercourse or –
 Accordingly there is a law above us all, this law which govern purpose, which govern
state and it is transcendental over all other laws

4. 17TH CENTURY – POSITIVISM SCHOOL OF THOUGHT


Richar Zouche - an English jurist
Cornelius Ven Byrkenshock – Dutch judge (Netherlands)

 States have to obey international law if they consented to it. There is a twist to this
when compared to the 15th century because International law shall have binding force
only if the state consent to it. If they agree to be bound by it, unlike in natural law, this
is a law above states, states may not agree with it, they may not conform to it but they
are bound by it.

 Key word according to the school of positivism is CONSENT the binding force of
international law is derived from the agreement of sovereignty to be bound it.
Accordingly Intl Law is not a law of subordination as espoused by the Naturalist School
of International Law but of coordination.

5. GEORGE HEGEL
 Advanced the idea that states like individuals have independent will. They must consent
to a particular law before they are made bound to

 The rule before during the medieval era is that your territory is founded only by your
ability to control it and how do you control it, by putting walls. That is your territory.

CANNON SHOT RULE ON TERRITORY


 Advanced by Byrkenshoe

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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 The territory of the state is equivalent to the extent of the power of their cannons.
 The territory extends to the areas that which you have influence or powers. And
when can you best exercise your power or influence? You can best exercise your
powers when your cannons can reach it.
 Cannons before can reach 1 mile, then 3 miles, that is your territory and what is
known as the 3-mile rule. Then cannons become powerful it can reach 10 miles and
eventually 12 miles.

6. ECLECTICS
Hugo Gnicius – Dutch Lawyer
 He is accordingly known as the Father of International Law
 International Law is based on the dictates of right reason, as well as the practice
of states
 This is actually a combination of natural law and the school of positivism
 Accordingly international rights and duties of states are inherent while the duty
to observe them is voluntary
 The conception of right and wrong is inherent in all individuals and all states but
the duty to obey international law lies on the voluntariness of the State.

7. MODERN SCHOOLS OF INTL LAW COMMUNISTS


Advanced the idea that international law is merely the formalize means by which the
economically dominant class controls society.

3RD WORLD ACTIVISTS SCHOOL OF INTERNATIONAL LAW


International law sacrifice the third world interest for the interest of the develop
world. This is advanced by India, Cuba and other 3rd world countries.

How is International law made part of Municipal Law?

DOCTRINE OF INCORPORATION
International law forms part of the law of the land, even without legislation of the
matter it is still part of municipal law

This is the doctrine, which govern the recognition by the State of International law in
their Constitution and even if they are not so stated in their Constitution, or the Constitution
is silent to that affect, this doctrine states that international forms part of the law of the
land. Incorporated into the Municipal law.

Art II Section 2 of the 1987 Constitution:


“The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations.”

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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What is renounced by the Philippines here is aggressive war not defensive war.

Supposing there is no Art 11 Sec. 2 in the Constitution will International Law still
form part of the law of the land?

Under the doctrine of incorporation, YES because international law automatically


becomes the law of the land simply because it is accepted by the entire world.

What are these generally accepted principles of international law?


(1) prescription
(2) estoppel
(3) res judicatn
(4) res inter alius ecta
(5) pacta aunt servanda – duty of the state to follow in good faith the treaties that it
entered into.

REYES v. BAGATSING

SC stated one of the main duties of the state is to protect the premises of
embassies and legations

KURODA v. JALANDANI
Ruling: Hague Convention – provides for the mechanics of how should you try war
criminals

Kuroda contended that the Philippines did not sign the Hague Convention,
The Philippines did not originally sign the Geneva Convention, the Philippines
signed it two years later in 1947 and the alleged crime was committed in 1946. it
should not be retroactively applied. Indeed we did not join the Hague Convention.

How can the provisions of the convention be applicable to us if we are not a


party to it?

We know that in a contract, a contract is only binding between the parties,


unless there is a stipulation pour autrui.

Now there is even no stipulation pour autrui in the Hague Convention, in the
Geneva Convention, originally the Philippines did not sign it, it signed only

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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subsequently in 1947. After the acts complaint against Gen Kuroda has long been
consummated.
SC held: The Gen. Rule on contracts does not apply here. Contracts only apply bet
the parties to it unless of course there is stipulation pour autrui. And it is so accepted
by the person so benefited. Because accordingly even though the Philippines did not
sign the conventions, even if the Philippines signed only the Geneva convention in
1947, still the rules and regulations form part or wholly based on the generally
accepted principles of international law that they are applicable anywhere.

How would you differentiate doctrine of incorporation from doctrine of


transformation?

DOCTRINE OF TRANSFORMATION
There must be legislation first so that international law can be accepted as binding
before a particular state, unlike a doctrine of incorporation even in the absence of legislation,
even in the absence of a positive act by a particular state, the generally accepted principles of
international law are considered binding here according to this doctrine, the generally accepted
principles of international law can only be binding if there is a legislation to that effect passed
by a particular State. The generally accepted principles of international have must be so
transformed into a municipal law before it can be made binding.

If indeed there is a conflict between international law and municipal law, what
should be the rule?

 If there is a possibility of harmonization that should be the first rule.


 The basic rule is to reconcile or harmonize the conflict thereby giving effect to both.
However a difference lies when it comes to practice.
 If the conflict would never be harmonize, the practice in international courts is
accordingly municipal law is accorded of being subservient to international law. And the
foremost author who emphasized that is Hanskelzen (?). International law is superior to
municipal law.

THE BRAZILIAN LOANS CASE BET FRANCE & BRAZIL

There was a controversy bet France and Brazil in the sense that Brazilian
loan bonds were in the hands of French nationals and there was a dispute
whether or not the loan bonds would be subjected to Brazilian municipal law or
if they were under the jurisdiction of the Permanent Court of International Justice
(PCIJ).

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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Loan bonds – are instruments issued by a certain state or government in


order to raise funds

In 1920’s Brazil issued this loan bonds in order to raise money. And some
of these loan bonds were in the hands of French nationals ad of course Brazil
does not want to honor the same, why? Because if they honor the same, they will
be made to pay the loan. That is why they are insisting that these loan bonds
provided they are genuine must be subjected or must be presented before
Brazilian municipal courts.

Of course the French nationals objected, NOI that should be allowed to


present even before the PCIJ. There is now a conflict here because the Brazilians
cited their municipal law while the French nationals believed that since this is an
international matter, this could be taken cognizance of by the PCIJ.

PCIJ the precursor of the International Court of Justice, this was created
after the Creation of the league of Nations

PCIJ Ruled In Their Favor


Jurisdiction should be with the Permanent Court of International Justice. The
reasoning behind this was that this was a affair of international concern, that this
does not affect only one stale but also has affected the affairs of French Nationals.
The PCIJ made specific reference to Art 36 of the statute of the permanent
court of international justice. So since the matter affected is of international concern,
international law should prevail over municipal law.

What about the practice in municipal courts?

Accordingly, the practice in municipal courts is that generally it is being


treated as correlative.

What Is The meaning of that?

The meaning of that to the effect is once the court determines that a
particular rule of international law is applicable in a particular case, that law will
be treated as law and not as a fact.

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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And if there is still a conflict, despite being in its correlative nature, the
municipal law shall prevail than international law. The cases are Abbag v.
COMELEC, Ichong v. Hernandez, Gonzales v. Hechanova.

ICHONG V. HERNANDEZ

The Treaty of Amity was alleged to be violated here and accordingly the
Universal Declaration of Human Rights was also cited. RA 1180 was rayed to be
declared unconstitutional being in violation with the Treaty of Amity and
Universal Declaration of Human Rights raised by the petitioners herein who
were mostly Chinese businessman.

What provisions of the Treaty of Amity and the Universal Declaration of Human
Rights were violated by the passage of RA 1180?

FUNCTIONS OF INTERNATIONAL LAW ACCORDING TO JESSUP


Jessup was the foremost source of international law, a respected lawyer

 The foremost function of international law is to eliminate the element of unlawful in the
solution of human conflicts and a provide a legal basis for the orderly management of
international relations

 International laws is there to eliminate or prevent war especially in the solution of


international conflicts. According to other author to promote would friendship by leveling
the barriers. To encourage and to ensure greater international cooperation and the
solution of world problems.

 Basically the function of international law is the elimination of war and to provide
peaceful methods in the solution of international conflicts.

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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SOURCES OF INTERNATIONAL LAW


Fr. Bernas provided a distinction of the sources of international law as formal sources vs.
material sources.

But he admitted that most international law writers are correct when we speak of
sources of international law and he conceded that the sources of international law are indicated
in Art 38 of International Court of Justice Charter. This is accordingly the authorized sources of
international law.

PRIMARY SOURCES
1. International treaties and conventions
2. International customs
3. Gen. Principles of law recognized by civilized nations

TREATY
Is one of the foremost sources of international law

OPPENHEIM defines a treaty as


International agreement contractual in nature between states or organization of
states creating legal rights and obligations bet the practice.

VIENNA CONVENTION defines treaty as


International Instrument concluded bet states in written form and governed by
international law whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.

HARVARD LAW defines treaty as


A formal instrument of agreement by which two or more states established or seek
to establish a relation under international law between themselves.

From the definition, it can be deduced that the treaties are formal instruments so
they must be in writing.

What is the implication to that?


There can be no such thing as oral treaty

REQUISITIES OF A TREATY:
1. It seeks to establish a relation
2. That relation is governed by intl law
3. The instrument may be in one form or in two or more related instruments

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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CATEGORIES OF TREATIES
1) General Multilateral Treaty

Establishes certain rules of behavior and is of a fundamentally norm creating


character and such could regarded as forming the basis of a general rule of law. It is
open to all states or to all members of a regional group.

2) Mechanism-Setting Treaty
This treaty provides a regional or collaborative mechanism by which states can
regulate or manage a particular sphere of activity. These treaties advocate certain
purposes and principles, which are, achieved through the decisions,
recommendations or ruler adopted by the administrative organs established. Ex:
Gen. Agreement on Tariffs and Trade

3) Bilateral Treaty
These are treaties entered into between 2 states and those among 3 or 4 states.

They facilitate mutual exchanges of rights and obligations regarding particular


subjects and their tone are contractual rather than legislative.

According to Vienna convention on the law of treaties this must be in written form
and this is binding between the 2 countries that entered the same. Now treaties are
governed by “pacta sunt servanda” – simply states that the state, parties to a treaty
must comply its provisions in good faith. Even this rule complies that the treaty must
be in-writing because parties to a treaty must comply its provisions in good faith.

TRAITE LOI – is considered as a source of general law or a law making treaty


- many states have concluded for any of the following purposes:

a) declaring, confirming or defining the understanding of what the law is on a


particular subject
b) stipulating or lying down new general rules for future international conduct
c) creating some international institutions

TRAITE CONTRACT is a bilateral arrangement concerning matters of particular or


special interests to the contracting parties.

DISTINCTION: TRAITE CONTRACT v. TRAITE LOI


1) Traite Contract or Contract Treaty is actually treaty, which seek to regulate the
relations between 2 or few states and this is actually a source of a particular rather
than general international law.

2) Traite Contract speaks of particular international law

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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 While Traite Loi or Law Making Treaty speaks of source of general


international law, this concerns many states, this concern a source of general
particular law which is generally binding upon number of states whereas in
Traite Contract, this is merely a contract treaty, a bilateral arrangement bet 2
or more states.

PROTOCOL DE CLOTURE
It is the instrument which records the summery of a diplomatic conference. This is
actually not the same with treaty in itself. This has no binding effect unlike treaties because this
only records the summary of a diplomatic conference. This is actually just but a SYNOPSIS of a
certain convention or a resolution or a diplomatic conference conducted between 2 or more
states.

CONCORDAT
It is actually in an agreement by the pope and head of states on ecclesiastical affairs or
temporal affairs, not religious affair.

ARRANGEMENT
It is an instrument of a more limited subject and of lesser importance.

CONVENTION
It generally suggests an agreement less formal or important than a treaty. Its scope is
usually, but not always restricted to some specific or technical matter.

CASE DECIDED BY PCIJ INVOLVING TREATY CONCERNING THE


LEGAL STATUS OF GREENLAND

There was actually a controversy over the status of Eastern Greenland and
this was one of the cases decided by PCIJ on April 05, 1933.
Eastern Greenland is located near the Arctic Zone. There was a
controversy as to whether or not it was owned by Norway or by Denmark.
So Norway claimed that eastern Greenland is its territory. Denmark
objected to such and contended that they were claiming the territory since time
immemorial.
Since they could not agree within themselves as to who or which country
has ownership, has jurisdiction or has sovereignty over eastern Greenland. They
agreed within themselves to submit for adjudication by the PCIJ.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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If you would like to lodge a case before the Permanent Court of


International Justice there must be consent to submit the case to PCIJ between
states.

What was the claim of Denmark?


Raise the claim over the property or territory of Greenland even from the
time of 1300’s. Because according to Greenland, they already occupied the said
property and as a matter of fact, the said territory was accepted through the
Kingdom of Norway and Denmark.
There was a controversy because before, Norway and Denmark were
under one Kingship from 1380-1814.
Norway and Denmark were under one Kingship, however it was agreed
that the Central Government was in Denmark and accordingly after 1814, there
was a war bet Norway and Denmark on one hand and Sweden on the other
hand. Denmark lost the war. And because of the lost of the war by Denmark;
Norway was ceded in favor of Kingdom of Norway excluding however
Greenland and Piro Isle, an island.
It was agreed in peace Treat of Fiel dated January 14, 1814 that in order to
resolve the war between Denmark and Sweden, Denmark agreed to cede Sweden
in favor of Kingdom of Norway excluding however Greenland and Piros Isle and
Iceland.
There was already recognition between other States because here was an
agreement.

The Treaty of Lund was created where Sweden recognized the ownership
of Greenland by Denmark.
In 1776, Denmark issued on ordinance concerning the monopoly of trade
which was recognized.
After 1814 something happened – Norway, became an independent
country sometime in 1889, 1909, 1992 and 1926. Norway sent expeditions on
eastern part of Greenland.
Conflict arises as to who will own Greenland, negotiations happened in
1919 between Norway and Denmark
Norway – Ehlen Declaration – the --- of Danish will not create any
opposition, but despite that Norway effectively occupied Eastern potion and
made a declaration that they own the eastern portion.
Denmark – entire of Eastern Greeland is subject to Danish sovereignty and
was recognized by Norway by treaty and that they effectively occupied since
time immemorial

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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DOCTRINE of ESTOPEL was used by Denmark contending that Norway


possessed no sovereignty over the area – TERRA NULIUS – meaning outside the
limits of the area of their actual establishment.
PCIJ ruled on the 1st contention of Denmark as having been effectively
occupied
Cited LAS PALMAS ISLAND case – a title granted in a peaceful display of
state authority over the island.

RULING
Denmark is able to prove the not of sovereign by over the area.
On the 2nd contention Norway in fact in certain treaties has adversely
admitted the clam of Denmark over eastern Greenland.
Denmark is allowed to rely on these treaties
Bilateral agreements and treaties have the effect of international law when
you fail to oppose such agreement or treaty
A cross or contrary contention is not allowed.

ADAPTED
When there is an agreement by the negotiating states as the final wording of the treaty text

RESERVATION
The Phil allows itself to be a party of a convention except:

Unilateral statement however phrased or named made by the state when signing,
ratifying, accepting, approving or acceding to the treaty whereby it purports to exclude or to
modify the legal effect of certain provision of the treaty is then an application to that state.

EFFECT OF BILATERAL TREATIES:


A proposal; to renegotiate the whole treaty

EFFECT OF MULTILATERAL TREATY


A reservation will not defeat the treaty so long as it is compatible with the object and
purpose of the treaty.

RESERVATIONS TO THE CONVENTION OF THE PREVENTION OF


GENOCIDE
 UN passed this treaty
 Many States provide reservations of the provision of the State
 Only an Advisory opinion.

Public International Law - Atty. Israelito Torreon


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 Questions the Gen. Assembly – can the reserving state be regarded as a


party to the convention while maintaining its reservation but its
reservation has been objected to by other countries.

Ruling:
In a 7 to 5 vote, the State which has made and maintained a reservation
which has been objected thereto can still be regarded as party to the convention
provided the reservation is compatible to the object of the convention otherwise
that state cannot be regarded as a party to the convention.

When is consent or agreement by states be bound by a treaty?

THREE WAYS WHICH A STATE CAN SIGNIFY THEIR CONSENT TO A TREATY


1) If you have allowed a negotiation and then the negotiator is clothed with authority to
enter into a treaty and if she files that treaty, it presupposes that you consented to the
treaty

2) By ratification – in the Philippines it is required a treaty is supposed to be ratified by the


Senate, by 2/3 votes

Ratification depends upon the Constitution of the State, the Philippines requires
that the legislature must concur. But there are other countries which requires the
concurrence of the hand of the government and that is enough

3) By accession – where a certain state is not a party to a treaty but it wants to be a party
to the treaty. So it accedes to the treaty by signifying that it approved that the UN
wants to be a party thereto and accept to be bound by the provisions of the treaty.

When shall the treaty has force and effect?

GENERAL RULE:
When all the states that participated in the negotiation have consented, a certainty that such
state effect or they may also provide a caveat that treaties may take into effect when a certified
number of states consent to be bound by it.
Ex.
Convention on the Law of the Seas – shall take effect upon the ratification of the 60 th member
of the convention

How can treaties be interpreted?

3 WAYS BY WHICH TREATIES CAN BE INTERPRETED:

1. Founding Father’s Approach

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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If there is a conflict as to the interpretation of a certain treaty – you rule to the intention
of the founding fathers of the treaty – the intention of the founding fathers of the treaty – the
intention of the framers of the treaty

2. Teological Approach
Its basically an approach whereby any question on the interpretation of a treaty is
resolved by looking at the aims and objectives of the treaties

3. Textual Approach
If there is a conflict an to the provisions of the treaty then you look at the clear and ordinary
meaning of the words of the treaty

How is a treaty terminated?

1. By consent of both parties


2. By material breach of the treaty by a party
3. Impossibility of performance – when the provisions of the treaty cannot anymore be
performed because of permanent disappearance or destruction of the object
indispensable for the execution of the treaty. (Nauru Case)
4. There is a fundamental change and circumstances which would radically transformed
the obligation still to be performed by the party (Rebus Sic Stantibus)

Country Nauru Development Corp

– whose capital is to look for a country to invest their money, is accordingly an


island, there are actually minerals found in the island.

Entered into treaties to countries which would buy its minerals.

There is now a danger of the country of sinking, so now they want to stop
digging for minerals, but how about the countries they entered into by treaties
and another is that they misinvested their money, part of it was proposed to buy
the Bataan Nuclear Power Plant, they discovered later that the Bataan Power
plant is not after all functioning and they wanted to cancel their treaties to
countries who wanted to buy their minerals. They invoke impossibility of
performance. There is no case yet filed before the PCIJ because no state consents
that this case be filed with PCIJ.

Before you can file a case before PCIJ you must comply with the requisites and the
requisite of which is that first, the state must consent, it must submit the case for decision to
PCIJ.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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INTERNATIONAL CUSTOM

Custom - is practice with a sense of legal obligation

2 Elements
1) Usus - general practice by state
- wanting for usage or topic, the consistent and recorded action by state.

2) Opinio Juris - acceptance as law by state


- sense of legal obligation in the continuous habit of doing certain things
the state must view it as legally obligatory

FIRST ELEMENT OF INTERNATIONAL CUSTOM: USUS

SCOTIA CASE

There was a collision between an American vessel, Berkshire and a British


steamer which resulted to the sinking of Berkshire. The owner of Berkshire filed
a case in NY to recover damages.
The court found that Berkshire was accordingly using white lights, so that
if cannot actually be seen.
According to Scotia, there is an international custom which had been
practice for quite a time which has been accepted as legally obligatory that you
must use colored lights. International law requires the use of colored lights and
by using white lights you cannot be seen and that’s why we hit you sank.

Supreme Court ruled in favor of Scotia because it has already been


accepted as an international custom, by the law of the seas, and even before the
end of 1854, all maritime states have adapted the regulation requiring the display
of lights of both ship sailing vessels and steamers and this was also been adapted
by the United States and Great Britain and adapted also as obligatory by more
than 30 of the principal maritime nations. Hence it possesses force because it has
been generally accepted by the rule of conduct. No single state can defy the law
of the sea which have been accepted with formal consent by civilized
communities.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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JAVAN (LOLA) CASE

During the Spanish-American war, 2 fishing vessels, owned by a Spanish


subject who was residing in Javana went to Spain to catch fish. Upon their return
they were captured by a US equadron. The two vessels were thought to be of
Spanish ownership.
The two fishing vessels were sold as prizes of war and sold at auctions
upon order of the district court of the US.

Issue: Whether an armed coastal fishing vessels of one belligerent per subject to capture
by the vessels of another belligerent

Held:NO, there is accordingly an international custom.

There is by ancient usage among civilized nations accordingly and that a


rule in international law that coastal fishing vessels pursuing recognition has
been exempt by their cargoes and cruise from capture.
This usage can be trace by means of documents as far back as 1403 AD
and subsequent evidence also shows that other states have followed the same
usage and even eminent writers have indicated that this usages become general
in scope: coastal fishing vessels accordingly by means of international custom
cannot be seized as prize of war.

JAYA DELA TORRE CASE

Dela torre was a Beruvian leader. In Peru, when he was about to be


arrested however he was able to sought refuge with the Colombian embassy.

We will know later that Embassies are part of the territory of the state
pursuant to the extraterritorial principle of international law and that it is an
extension of the state’s territory.

He was granted asylum by the Colombia and Peru questioned it that it


lack any basis, there is accordingly no international custom recognizing asylum

ICJ ruled that there is no international custom granting asylum and that it
is not an accepted practice. Note that practically greater number of States have
not accepted asylum as a matter of international practice.

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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There is one author who advanced the view that state practice must still
be dissected as to whether state practice be limited only to physical act or it can
be extended to also act and statement or physical and verbal acts of the state.
Physical act means that it does not include physical acts and statements
such as treaties, decisions or Intl agreements

Whether this view is correct or not it is up to you because these two views are accepted under
International law.

3 COMPONENT ELEMENTS OF STATE PRACTICE


1) Duration
2) Uniformity
3) Generality

1. Duration
 There is an instant customary law (Bernas)
 Ex. Fight against terrorism – as crime against humanity – hostis humani generis as
enunciated in the Sept 11 twin towers bombing
 There is no specific duration, however the passage of time becomes a part of
evidences of generality and consistency

2. Uniformity
 There is no such requirement
 What is crucial is not repetitions but consistency in state practice

3. Generality
 Common, widespread, not necessarily universal
 There is a requirement of generality
 There must be common and wideopened practice but not necessarily universal
practice

PERSISTENT OBJECTOR
 Customary rule will not apply to persistent objector

 2 Conditions:
1) Objections must have been maintained from the early stages of the rule,
onwards and up to its formation and beyond.
2) Objections must be maintained consistently being that position of other states
was made upon to rely on the position of the objector has to be protected.

 In other words that the objection has been maintained for quite a time already and as a
matter of fact the objection has been existing from the time International custom was

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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first accepted up to the present is a state which persistently object the practice during
its formative stages and beyond and such state does not become a party to it.

 If you comply with the 2 conditions, then under Intl law you are allowed to deviate from
a certain customary practice

SUBSEQUENT OBJECTOR
 The state objected subsequently meaning there is an Intl custom and the state accepted
it at first and then again objected later on.

 A state which dissents from a customary rule after its formation but this state is not
exempt from Intl customary law, you only objected subsequently then you are not
exempt.

 However there is caveat:


When a substantial number of states agreed with the agreement objector and
follow suit then we have a new International customary law.

SOUTH AFRICA CASE STATE VS. PETANE

This is criminal case whereby the accused is a member of the African


National Congress Military Unit and was accused of counts of terrorism and
attempted murder arising out of an attempt to blow a shopping center

He refused to enter a plea, he contended that he was entitled to be treated


as a Prisoner of war (POW), because of adhesional protocol 1, which is related to
the Geneva Convention;

Adhesional protocol 1 extends the scope of Art 2 of the Geneva


Convention to armed conflicts in which people are fighting against colonial
domination and alien occupation and against racist regime in the exercise of their
right to self-determination

He further contends that he is not under the South African rule and that
he was fighting against the “White MAN rule”

South Africa did not sign under adhesional protocol 1, but even so, it is
part of the Intl customary law.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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South African Supreme court held that adhesional protocol 1 cannot be applied
to south Africa because:

1st it was merely a resolution of the UN Gen. Assembly hence it is doubtful as


such top be considered as state practice. Besides UN Resolutions were merely
recommendatory in the character and it does not constitute the opinio juris
required to create a customary rule.

2nd there was little practice with regards to adhesional protocol 1 because very
few states have been involved with colonial domination or occupation. And only
2 states would be considered as belonging to the category of racist regime –
South Africa and Israel. So accordingly there is no state practice initiate because
there is no state following adhesional protocol 1.

3rd Protocol 1 was not widely ratified and that there was no evidence that its
provisions have been widely accepted to be accorded as customary rules

SECOND ELEMENT OF INTERNATIONAL CUSTOM: OPINIO JURIS


 There is a belief that a certain form of behavior in obligatory
 The belief by a state that a practice or a certain state practice is obligatory

CONFLICT BETWEEN A TREATY AND AN INTERNATIONAL CUSTOM (FR. BERNAS)

If such happens the first thing that should be done is that it should be treated as
complementary to each other-there must be harmonization of treaty and custom.

If a treaty comes after a custom then the latest intention prevail, written expression of
the will of the parties. The latest treaty in contrary to the customary rule which is classified as
“juri cogens” or universally accepted norm, then international custom shall prevail.

If a custom is develop after a treaty the rule on international law in this case is not clean
why, if that happens then we should follow the custom but this will violates the rule on pacta
sunt servanda – treaties entered into by states shall be followed in good faith, so in actual
practice, what is done is to reconcile the two, the treaty and the custom.

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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GENERAL PRINCIPLES OF INTERNATIONAL LAW

HAW PIA v. CBC

The issue here is WON in cases of war the winning or victor state has the
right to appropriate spoils of war or the resources of defeated state.

During the early days of history, if you are victor country, all the gold,
even the women, everything, were considered as spoils of war or war booty

Through the years, men realized that a rule should be adopted even
during the war, that if you win the war, the victor country can take everything
which is of public property but not private property.

This is exemplify into the Hague Regulation – it is generally accepted that


in case of war, victor states can take everything of public property by
appropriation but not private properties, then again if we allow that, then what is
the use of winning the war?

COMPROMISE
The victor state may be able to use private properties not in the sense of sequestration but by
appropriation.

APPROPRIATION V. SEQUESTRATION
In appropriation, you can take a property and treat it as your own. While in
sequestration, you merely hold the property so that it will not be dissipated so that later on the
property may be declared to be that of a --- property which shall be transferred to him or her.
 Haw Pia was indebted to China Banking Corp. (CBC) before the war, and then during
the war, CBC was declared as an enemy corporation;
 In order to declare an enemy, International law develop the so called control theory or
incorporation theory to be able to determine if such corporation is an enemy or not.
 Under the control theory the corporation is an enemy if the corporation is controlled by
the enemy.

E.g.: A corporation may not be owned by a Japanese corporation. It may be owned by a


Filipino corporation, but 60% of the stock is owned by the Japanese corporation, or such
corporation is actually owned by Japanese even though registered under SEC or that the board
of directors named are Filipino citizens

INCORPORATION THEORY – a corporation is considered an enemy if that corporation is


incorporation under the law of the enemy regardless of who controlled the corporation.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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 Now, either theory can be followed by the state but under International law, the
generally accepted principle is that both theories are accepted.

 In the case at bar, whether you follow the control or incorporation theory, according to
Japan, CBC is an enemy, that was why it subjected its control and jurisdiction and as a
matter of fact, it appointed Bank of Taiwan (BOT) as the liquidator of CBC, in effect, all
the officers of CBC were not anymore allowed to report; all the assets and properties
were now under the control and supervision of the BOT.

 Payment to be made to CBC can be accepted by the BOT. During the war, Haw Pia paid
his loan to CBC to BOT, he used as payment, the mickey mouse notes – Japanese war
notes. After the war, Haw Pia secure the property by demanding the cancellation of
mortgage because according to him his indebtedness was already paid. CBC however
refused because that was not payment to an authorized person. CBC filed a
counterclaim demanding the payment for the loan because it did not recognize or
appoint BOT as representative and that such payment is not valid being paid in
Japanese war notes

 TC decided in favor of CBC because there was no evidence whatsoever that CBS
authorize BOT as its representative to accept payment.

1st issue: The generally accepted principle now is that the victor state can confiscate or
appropriate public property however upon the passage of Hague Regulations it is now a
generally accepted principles of Intl Law that there is no prohibition of confiscation of private
property by order of military authorities and pillage thereof by private individuals; private
property is now considered as war booty.

2nd issue: Doctrine of military necessity, the power of the military government to established
and occupy enemy territory, that the power to issue military currency in the exercise of their
governmental powers; that power is based not only on the occupants of general power to
maintain law and order recognized in Hague regulations but also on military necessity to
assume the history of the use of money or currency in war related in their decisions.

During the war, the Japanese govt issued Japanese war notes and they took full responsibility
for the usage – recognized by Intl law as valid; after the war, Japan was bound to indemnify
aggrieved banks for the loss and damage of property.

GIBBS vs. RODRIGUEZ

Ruling: But be that as it may, whatever might have been the intrinsic or extrinsic
worth of the Japanese war notes, which the Bank of Taiwan has received as full
satisfaction of the obligations of the appellee’s debtors to it, is of no consequence
in the present case. As we have already stated, the Japanese war-notes were

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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issued as legal tender at par with the Philippine peso, and guaranteed by
Japanese Government which takes full responsibility for their usage having the
correct amount to back them up (Proclamation of January 3, 1942). Now that the
outcome of the war has turned against Japan, through their States of
Government, payments or compensation in Philippine pesos or U.S dollars as the
case may be, for the loss or damage inflicted on the property by the emergency
war measure taken by the enemy. If Japan had won the war or were the victor,
the property or money of said banks sequestrated or impounded by her might be
retained by Japan and credited to the respective State of which the owners of said
banks were nationals, as payment on account of the sums payable by them as
indemnity under the treaties, and the said owners were to look for compensation
in the Philippine pesos or U.S dollars to their respective States. (Treaty of
Versailles and other peace treaties entered at the close of the First world war; VI
Hackworth Digest of International law, p. 232)

And if they cannot get any or sufficient compensation either from the enemy or
from their States, because of their insolvency or impossibility to pay, they have
naturally to suffer, as everybody else, the losses incident to all wars.

If you are asked in the BAR;


Is an individual considered a subject under international law?

Answer: As a general rule, NO because it is not considered a subject. However, there is a


recent trend, a growing tendency to treat an individual as a subject shown by the following
reasons:
 The United Nations Charter states that there is faith in fundamental rights, dignity and
worth of the human person and in the equal rights of men and women.
 The Universal Declaration of Human Rights recognizes the inherent dignity and the
equal and inalienable of all members of the human family.
 Some treaty, such as the Treaty of Versailles directly conferred individuals the right to
bring suit against State before national or international tribunal.
 An individual can now directly affect a subject
 A growing tendency of stat4es to maintain an international standard of justice in the
treatment of aliens.

MEJOFF V. DIRECTOR OF PRISIONS

The Genocide Convention condemns the mass extermination of national, ethnic,


racial or religious groups

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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The Tokyo and Nuremberg War Crime Trials attach direct responsibility to an
individual for offenses committed of them in violation of the rules of war.

CONCEPT OF HOSTS HUMAN GENERIS


 Certain persons are considered as enemy of the humanity such as pirates and terrorists.
 They are made directly and individually responsible for their acts.
 1930 Hague Convention has ruled to prevent the anomalies condition of statelessness
and the 1954 Covenant relating to the status of stateless persons granted them basic
rights. Hence, they are considered as a subject.

DOCTRINE OR INCORPORATION
 Whereby international law becomes part of the municipal law of the land
 Applies to individual inhabitants and in that sense, individuals are considered subjects of
international law.

THE EUROPEAN COURTS ON HUMAN RIGHTS created the EUROPEAN CONVENTION


ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
Allow private associations and individuals the right to file a complaint before it.

Why is there a need to differentiate a subject form an object?


 There is a need to determine who shall be made responsible in cases of international in
nature
 That there will be a system of determining what entity are responsible under the law.
 Like any legal system, international law is an institution for regulating human behavior
and therefore must depend ultimately on holding a specific person or group of persons
responsible under the law (That is the rationale there)
 In the international arena, only persons with international personally can act.

Who are these persons?


 They are called actors of international law because they can enforce what they want and
they can also be made accountable by their actins
 They are so called actors because they are so recognized as actors, they can affect
international relations; they can enforce what they want.

Who can enforce rights and obligations before the international arena?
And, Who can be made accountable (must go together) in order to qualify as subject under
international community?

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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INTERNATIONAL COMMUNITY
Body of juridical entity which are govern by the law of nations and these are composed
not only by states, but also of international organizations which are recognized as subject such
WHO, United Nations Foundation for Peace

If you are considered as a belligerent community, you are allowed a seat before the UN
as a rule but without a right to vote.

SUBJECT VS. OBJECT


Subject who can enforce rights and obligations before the international arena and who
can be made accountable for their actions.

If you are a subject you can directly relate with a fellow subject

Object is the recipient, one who cannot relate directly with a subject

GENERAL RULE: An individual is merely considered as an object, or those who


indirectly have rights under or beneficiaries of international law.

They cannot act or they cannot deal directly with a subject, it takes a subject to deal
with a subject.

Ex. Flor contemplacion incident

SUBJECT
 Belongs to the international community
 Can enforce rights and obligations and are made accountable
 Can directly relate to another subjects

Vatican City
1) A unique state
2) Only composed of 108.9 areas (43,000 sqm)
3) Population of over 700
4) Considered as a subject and can send diplomats and states concerned have accord
such diplomats with all privileges accorded to other states

Smallest countries:
1) Vatican
2) Monaco
3) San Marino
4) Tovalo
5) Nauru

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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Later Trend in international law


An individual is to certain extent considered as a subject. Many precepts of law of
nations are directly applicable to or for the benefit of the individual, sometimes even
independently of the state to which he may belong.

1. The UN Charter reaffirms faith in fundamental human rights, in the dignity and
worth of human person, and in the equal rights of men and women, and contains
many provisions looking to the promotion of these rights.

2. The Universal Declaration of Human Rights, in recognition of the inherent dignity


and of the equal and inalienable rights of all members of the human family,
proclaims the basic individual rights which all nations are called upon to foster.

3. A number of treaties directly confer rights upon individuals and authorize them to
bring lawsuits against states before national or international tribunals for redress of
private interests violated.

4. States are obliged to maintain an international standard of justice in connection with


the treatment of liens within their jurisdiction, failing which they may be held liable
in damages for the injury suffered by such foreigners.

5. The Genocide Convention condemns the mass extermination of national, racial or


religious groups as a crime under international law and makes the perpetrators
thereof, states as well as individuals subject to punishment.

6. The Nuremberg and Tokyo war crimes trials attached direct responsibility to
individuals for offenses committed by them in violation of the law of nations,
whether it be on their own responsibility or on behalf of the states.

7. Pirates have been immemorially regarded as hostes humanis generic and are directly
and individually punishable for their acts whichever state may have them in custody.

8. Certain laws of war and neutrality, such as rules on carriage of contraband and
breach of blockade, procedure before prize courts, espionage, treatment of the sick
and wounded, and the rights of the prisoners of war, directly affect the individuals
themselves rather than the states to which they belong.

9. The Hague Convention of 1930 lays down specific rules intended to prevent or
minimize the anomalous condition of statelessness.

10. The Convention Relating to the Status of Stateless Persons bestows certain rights in
favor of individuals who otherwise, for lack or loss of nationality cannot invoke the
assistance or protection of any state.

11. The Doctrine of Incorporation makes the law of nations part of municipal law, and,
hence, directly applicable to the individual inhabitants of the state.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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STATE
An entity which has the fullest personality is international law

4 ELEMENTS OF A STATE (Monte-Video Conventions of 1933)


1) permanent population
2) defined territory
3) government
4) capacity to enter interrelations with other states

1.) Permanent Population

Community of persons, more or less numerous permanently occupying a definite


position or territory indep of external control and possessing an organized government
which the great body of inhabitants render habitual obedience.

More or less numerous -it should be sufficient in number to maintain and perpetrate
themselves

People: An aggregate of individuals of both sexes who live together as a community


despite of racial differences

2.) Territory
A fixed portion of the surface of the earth
Fixed portion must be big enough to be self-sufficient and small enough to be easily
administrated independence equals jurisdiction
Must be able to provide the need of the inhabitants.
No state can claim that it is self-sufficient.

3.) Government
The agency through the will of the States is formulated, expressed and realized
 It is the face of the state
 It represents the state
 Is there a requirement as to form?
 No such requirement
 So long as you are not anarchic, so long as you are not in disarray
 So long as there is an entity to represent it in its relation with other states
 And that entity can be held responsible for the acts of its inhabitants

4.) Independence
Full control with internal affairs without dictation from others

Sovereignty
Internal and external affairs; capacity to enter into interrelations with other states.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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Freedom from outside control in the conduct of external and internal affairs

What concerns international law is that you can direct your external affairs without
dictation from other states we are not concerned as to how you rule internally

Whatever the internal structure does not matter, the important thing is that the
state is free from outside control in the conduct of its foreign affairs

DOMESTIC JURISDICTION CLAUSE


A state is supreme within its own territory

In the UN Charter or the 7th PRINCIPLE OF UN CHARTER

When Indonesia massacred the people in East Timor, it involved domestic


jurisdiction clauses

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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RECOGNITION
Is it a necessity before a state can be considered as a State?

Theories of Recognition
 Declaratory theory
 Constitutive theory

Constitutive Theory
States that Recognition is 5th element of the State
It is a recognition that confers legal personality to a state.

Can an entity claim to be a state before it is recognized by the other state?


Without recognition, can a state claim to be a state?

RECOGNITION is defined
1. by Kaplan
as a formal acknowledgement or a declaration by the government of an existing state
intending to attach certain customary legal consequences to an existing set of facts which
justifies _

2. by another author as
the willingness of one government to accept the fact and the political consequences of
another state or government coming into being.

3. by Cruz
Recognition may be extended to a state, to a government, or to a belligerent community.
Member of UN – only partial recognition

4. by Bernas
Recognition is a political tool. There can be no derecognition of a state after recognition unless
one or more of its element is lost. However, recognition of a government can be withdrawn.

What makes a State a State?

2 SCHOOLS OF THOUGHT

1. According to Constitutive Theory there is a 5th element


An entity cannot become a state; it is only upon recognition that the state
becomes a state
Recognition confers legal personality on entity concerned.
An entity becomes an Intl person upon recognition.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More

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AN EXAMPLE OF THE PRINCIPLES OF RECOGNITION

Before the 1st world war, Yugoslavia is part of Austria – Hungary – which
is an ally of Germany & Italy (after the war allied w. G. Britain.) Germany lost the
war (1st WW), Austria-Hungary together with the Roman Empire dissipated,
after which, this become finally.

During the time of Josip (?), (Bronz Tito-true name of Josip), was
accordingly the father of Yugoslavia – he united everybody, Slovenia, Croatia,
Serbia, Herzegovina, Montenegro, Macedonia – which forms Yugoslavia

During the 2nd world war, Yugoslavia created resistance with Germany,
this time against Hitler, was led by Partisans.

After the 2nd world war, Tito was able to form what is known in history
as unified Islamic People of Yugoslavia.

After the death of Tito, now was the problem: Slovenes wanted out, they
hate Serbians (Orthodox Christians). Serbia has this concept of Unified
Yugoslavia, Serbians being the leader of everybody and everybody must serve
the Serba, that is the problem of Slovodan Milosovic. He believes that it is the
supreme race among Islamic People.

That’s why, Slovenia, Croatia, Bosnia-Herzegovina in the 1990’s want out.

Slovenia declared its independence in 1991, it was immediately


recognized, European communities recognized it, not because it has 4 requisites
of being a State, the reason is purely political

Croatia followed suit immediately, days after Slovenia declared its


independence, and was immediately recognized by other states.

But a war broke out because the Serba organized themselves and invited
the Yugoslav army to prevent the decision.

Bosnia-Herzegovenia 1-2 days after followed suit (declaring its


independence) that’s why there was a war, Serbian minorities together with the
Yugoslavia invade Bosnia-Herzegovenia so war occurred.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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Montenegro is beside Albania, and Albanians are Moslems, The Kosovo


people are populated by Albanian Moslems, they also wanted out, so there was
war. Only Montenegro and Serbia remained.

Macedonia also declared independence in 1992 and as a matter of fact,


Yugoslav armies abandoned Macedonia in 1992, and was not recognized by
other states.

What seems to be the difference bet Macedonia and the other states that
declared their independence? POLITICS

Now Macedonia is an independent country but until now most states do


not recognized it.

2. One author emphasized that Recognition as a general rule is declamatory – which


is a traditional concept:
A state can come into existence even without recognition.
Recognition is merely declaratory because the legal existence of the state or
government happened by operation of law. It emphasizes what has already been in
existence. It merely declares a fact which fact has already been in existence.

BUT w/ recent events:

RECOGNITION has already become less predictable and more of a political discretion as
a result of written practices

Has already become dictated by politics and in that sense, it has become
CONSTITUTIVE

But if you are asked in the bar exams:


Do not ever forget that there are two theories: Declaratory and Constitutive Recognition

The constitutive theory of recognition maintains that recognition constitutes a state, it


maybe considered as the fifth element of the State that w/o recognition there can be no state.

On the other hand there is the traditional view which is most accepted by Intl author
that recognition is merely declaratory that it merely declares a fact which has already been in
existence.

But with the recent events, recognition has already become less predictable and more of
a political discretion, become dictated by politics, which in one sense makes recognition as
constitutive.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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EFFECT OF RECOGNITION
Acquires the right of suing in the courts of law of that recognizing state.

FORMS OF RECOGNITION (book of Cruz)


 Express
 Implied

Whether or not there is recognition when a state is admitted in the United Nations?
Can there be Automatic Recognition

UNDER INTL LAW, DIFFERENT AUTHORS HAVE DIFFERENT VIEWS

That even if the state is admitted under the UN that does not mean automatic
recognition. Ex. Chile

There are states which recognized automatic recognition.


Ex. Sweden - partial recognition for the purpose of the United Nations

INTERNATIONAL LAW AUTHORS HAVE COME UP WITH A COMPROMISE


If you are admitted in the UN automatically there is partial recognition among the
members of the UN.

Once you are there already in the UN even though other states do not recognized
you, for purposes of the affairs of the UN, that they cannot do anything otherwise but
recognized.

DISTINGUISH: RECOGNITION OF STATE v. RECOGNITION OF GOVERNMENT


When a state is 1st recognize, the gov’t may be regarded as de facto or de jure. De facto
– existing in fact but not formally recognized. De jure – existing in law because it is formally
recognize

CONCLUSION:
When there is recognition of state, there may not be recognition of government
When a govt changes, recognition of the state continues
But the new government may or may not be recognized

DE JURE RECOGNITION, REQUISITES


Objective Test: Whether or not it can maintain order for external aggression
Subjective Test: Whether it can comply with international obligations

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More

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What are the minimum requirements to recognize a government?

2 principal Elements
1) The government must be effective and stable
It should be in possession of the machineries of the state and w/o substantial resistance
to its authority meaning: it should be in control and it can oblige following by the
substantial number of its population.

2) The government must show willingness and ability to discharge Intl obligations (most
important element)

3) The government should enjoy popular consent or approval of the people(TOBAR OR


WILSON DOCTRINE)
Thereby precluding recognition to any government coming into existence by
revolutionary means so long as the duly elected representatives of the people thereof
have not been constitutionally reorganized, that should not be recognized.
Any government arose out of freewill of people
And should not have come into existence by revolutionary means
If the government come into existence by revolutionary means then election
should have been instituted, they may be recognized after the duly representatives of
the people have already been elected.
Depends upon the policy of each state

[3rd requirement – advanced by Foreign Minister Tobar of Ecuador and also supported
by Pres. Woodrow Wilson of US]

STIMSON PRINCIPLE
An inhibition against government establish as a result of external aggression
Then it should be recognized as a government.

If asked in the bar,

 State the 2 principal elements


 HOWEVER, there are certain quarters in Intl law that it should have a 3 rd
requirement stating the TOBAR OR WILSON Doctrines & on the other Hand state the
STIMSON PRINCIPLE

ESTRADA DOCTRINE
Statement of Mexico’s Foreign Minsite Genaro Senver Estrada
 A declaration affirming the duty of continuing diplomatic relations as far as possible
without regard to revolutionary changes
 It simply means that to avoid the possibility that recognition of a government should
adopt the policy of never explicitly recognizing another govt.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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 You hold off your recognition, you don’t care as to WON that govt arouse out of
revolutionary means just continue to dealing with it. If continue dealing with such
state that should not be constructed as recognition

Why did he advanced this view?


Most countries of South America arouse out of Revolution
Other countries must not pass judgment on how such government came into
existence. (In other words, huwag mo nang pakialaman kung paano siya naging state)

A policy of never issuing nay declaration giving recognition to govt and of


accepting whatever govt is in effective control w/o raising the issue of recognition

CASE O F SALMOFF & CO ET AL v. STANDARD OIL OF NY

1st WW broke out in 1914 because of the assassination of the Austria-Hungary


Prince Ferdinand. When he went to Sarajevo he was shot by a 19 year old Serbian Spy.

Russia was involved in the war because it was an ally of the Serbs

In 1917 Russia was no longer involved in the war, they nationalized all industries
including oil lands pursuant to its State ownership principle – all sources of production
shall be controlled by the state. Oil extracted by Russia was sold to Standard Oil of NY

The former owners of the property, Russian Nationals join in an equitable action
for an accounting on the ground that the confiscatory decree of the unrecognized Soviet
government and the seizure of oil lands there under had no other effect in law on the
rights of the parties than seizure by bondage.

Accordingly they filed a case in US, that the act of Volsivic was an act of
bondagery. It should not be recognized under Intl law

Accdg to Salimoff & Co., they contended that the Soviet decrees of confiscation
did not divest them of title.

US SC held that:
That the courts cannot create a foreign law contrary to the law of the place of the
act. Meaning: there is state immunity here. Recognized or unrecognized.

The cause of action herein aroused where the act of confiscation occurred and as
such it must be governed by the Law of Soviet Russia

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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According to the Law of Nation, it did no legal wrong when it confiscated the oil
of its own nationals and sold it in Russia independence (?). Such act may lead to govtal
refusal to recognized Russia as a country to which the US may have diplomatic dealings.

The confiscation however is nonetheless effective. The government may be


objectionable in a political sense; it is not unrecognizable as a real government power
which can give title to property w/n its limits. Non – recognition however is no answer
to defendants contention.

Recognition does not create a state. It simply gives to a de facto state


international status. There is no reason for regarding as of no legal effect the laws of an
unrecognized government ruling by court as the Soviet government in Russia
conceivably w/n its own territory, the Soviet as a sovereign power.

KINDS OF RECOGNITION
1) DE JURE
When its permanent, it brings abut full diplomatic intercourse and so conferment of
diplomatic community

2) DE FACTO
 Merely provisional
 There is no full diplomatic intercourse bet the States concerned
 Important factor:

Once you acquired a de jure recognition, you are in fact telling the other
states that you are recognizing ownership by the State of all it assets that are
present in the recognizing state.

BUT does not apply in so far as de facto recognition is concerned.

CONSEQUENCES OF RECOGNIZING A STATE

1) Acquisition to enter into diplomatic relations and to make treaties with them

2) The right of suing in the court of law of the recognizing state (recognition is a pre-requisite)
 There is an order in principle of law that recognition cannot be revoked right away.
 If there are mere misunderstandings or breaches of peace
 One of the usual steps of diplomatic countries is to sever diplomatic relations

Ex. 13 days movie


Any conduct short of war does not sever recognition

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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SAPPHIRE CASE
Decided by the US SC IN 1871

The SAPPHIRE is actually a private American ship, collided with Euryale French
Naval Boat at the harbor of San Francisco on Dec. 22, 1967
A case was filed in the US court and was filed in the name of Emperor of France,
Napoleon III, the owner of the French Naval Boat
But in the summer of 1870, Napoleon III was deposed as Emperor of France

WON the next govt can continue the cases initiated by Napoleon III

YES it invoked the PRINCIPLE OF STATE CONTINUTY – the reigning sovereign


represents the national sovereignty and that sovereignty in continuous and perpetual,
where it is continuous and perpetual, residing in the proper successor of the sovereign for
the time being.
Sovereignty does not change only the person or persons (as agent and representative
only) in whom it resides change. Hence, the next government has the personality to
continue on any suit began by the former govt.

3) It becomes entitled to demand and receive possession of property situated within the
jurisdiction of the recognizing state, which formerly belong to the preceding govt.

4) (debatable) recognition is retroactive this means recognition shall have retroactive effect, to
be applied from the day the government first came into existence

(majority theory) ex: GMA’s govt came into existence on Jan. 21, 2001, if recognition only
happens in March 2003, it retroacts to all its actions to Jan 21. Any and all actions
committed here are considered validated and the effect of that to preclude the court of
recognizing state from passing judgment on the legality of its act, fact and _____

DISTINGUISH: RECOGNITION v. DOCTRINE OF STATE IMMUNITY

One of the effect of recognition is the capacity to file a suit on the courts of law of the
recognizing state

Just because you have now recognized the state and you have allowed that state to file
cases in court that does not mean that you are allowed to file cases against it.

Why? because if you are allowed to file a case against it, DOCTRINE OF STATE
IMMUNITY will apply – a foreign sovereign in the municipal court of another state cannot file a
case against such state because that would be an insult and it is entitled to resent and would
certainly vexed the peace of nations.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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DIFFERENTIATE: RECOGNITION OF INSURGENCY v. BELLIGERENCY

BELLIGERENCY DEFINED:
1. State of war between states
2. Actual hostility amounting to a civil war within single state (more acceptable on law
students)

Why would they (MILF, NDF, etc) claim belligerent status?

When you have reached a belligerent status “Strategic stalemate”, for purpose on
the struggle or conflict, you are considered an independent state. “Stalemate”, for purpose
on the struggle or conflict, you are considered an independent state.

It is an advantage, because if you are considered as an independent state for


purposes of the conflict, you are now free from accepting donations from the other
countries and the other parties cannot complain, cannot file a diplomatic protest (you have
no cause of action). IT IS ALL BECAUSE OF MONEY

IT IS ALSO A DOUBLE EDGE SWORD


Because for purposes of the conflict also you will be considered as responsible or
accountable
Other states would demand explanations from you. They would demand
damages from you.

ELEMENTS OF BELLIGERENT STATE:


1) Must have an organized civil government that has control and direction over the armed
struggle laundered by the members
That’s why there is a political arm and a military arm. There is a need for an
organized civil government so that there will be a specific entity that can be held
accountable should there be violation committed in order Intl law

2) Occupation of a substantial portion of the national territory


Ex. Tarnil Liberation Tigor of Sri Lanka

3) Seriousness of the struggle which must be so widespread that there will be no doubt as
to the outcome

4) Willingness son the part of the rebel to observe the rule and customs of war.
When you fail to comply with any of the elements of belligerency then it is
merely an insurgency.

CRUZ DEFINED INSURGENCY as


The initial stage of belligerency
Merely directed as the general rule of military authorities
Does not occupy a substantial portion of the national territory

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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LEGAL CONSEQUENCES OF BELLIGERENCY


1) Responsibility for the acts of belligerent are now lodge with the belligerent state
2) The parents state is no longer responsible for the acts of belligerents
3) Rules of war shall be followed (Articles of War)
4) The belligerent cannot anymore be tried under the laws (you cannot file a case for
rebellion against them)
5) Belligerents shall be treated as Prisoners of War (POW)
6) Belligerents should be treated as citizens of a warning country
7) It is waging against the legitimate purpose
8) Is belligerency, it presupposes that you occupied a substantial portion of national
territory for purpose of that conflict your territory is considered as a separate state.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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CONCEPT OF STATE
State being compose of people, territory, government & sovereignty. There may be a 5 th
element if you follow the constitutive theory which is recognition. But if you follow declaratory
theory then recognition is not an element of state

METHODS ON WHICH THE STATUS OF A STATE MAY BE ACQUIRED (found in Cruz


and also in Salonga)

1) revolution – actually implies a colony


2) unification – when one or two states unify
Ex. Roman empire history, atila the hun(?)
3) Accession – when there’s a country and part of the state secedes declares its
independence
Ex. India, Pakistan, Bangladesh (all part of British India)
4) Assertion of Independence
Ex. When Philippines asserted independence from US
5) Agreement
Ex. Israel
6) Attainment of Civilization
Ex. Japan

EXTINCTION OF THE STATE


If any of the essential elements disappear or is radically impaired it will result to the
extinction of the state

CLASSIFICATION OF STATES

1) Independent State – freedom of direct and control its foreign relations without
dictation from other states. International law is conferred in external affairs of the state.

a) Simple state – one which is placed under a single and central government
exercising control over both its internal and external affairs

b) Composite state – 2 or more sovereign states are joined together so as to


constitute one single international person

i. Real Union – exist when 2 sovereign states are link by treaty under the
same ruler, and henceforth act internationally as a single composite person.

External affairs are blended but with respect to Internal affairs they
maintain their respective identity.

Public International Law - Atty. Israelito Torreon



The Fraternal Order of St. Thomas More
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ii. Personal Union – union of two states whereby they only share the same
leader but a separate state with distinct Intl personality.

iii. Incorporate Union – external and internal affairs are blended. Union of
two or more states under a central authority empowered to direct both their
external and internal affairs and possessed of a separate Intl personality. Ex:
GB, UK,N Ireland

iv. Federation – combination of states which upon merger cease to be states,


resulting in the creation of a new state with full Intl personality to represent
them in their external relations as well as a certain degree of power ever
their inhabitants. Ex: US

2) Dependent State - is a state subject to the authority of one or more states in the
conduct of its external affairs

CLASSES OF DEPENDENT STATE


a) Vassal State – suzerain-vassal relationship during the medieval era.
Suzerain is the overlord, and has the power over you not only externally
but also internally. Suzerain has complete control over the vassal, a vassal can
only cat internationally if it so conferred by suzerain.

b) Protectorate – arouse during the colonial era.


A protectorate arises when a weak state surrenders itself by treaty to the
protection of a strong state and transfers the management of its international
affairs to the protecting state including representation and defense.

Distinguish: Protectorate v. Vassal State


In a protectorate, you protect all competent to direct your international
affairs unless renounced or waived the same, meaning they can renounced it.
In a vassal state you are under the mercy of the suzerain, you can only
act internationally or you can only exercise your power, the power that is
expressly conferred by the suzerain.

c) Condominium – is a territory jointly governed by 2 or more states, they have


no government of their own and no national sovereignty

d) Mandatory – under the mandate system establish at the end of 1 st WW


whereby the former territories of the defeated powers were placed under the
tutelage of some members of the league of nations as mandatory in behalf of
the league.

3) Neutralized State – is a state where its independence and integrity are guaranteed by
an international treaty on the condition that such state obligates itself never to take up

Public International Law - Atty. Israelito Torreon


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arms against any other state except of course for self-defense or to render into such
international obligations as would indirectly involve it in war.

Ex. Switzerland
It was in 2001 that Switzerland was finally admitted to the United Nations.
Some quarters of International law would advanced the view that Switzerland is
not anymore a neutralized State.
Why? Because one of the duties of a member of the UN is the PRINCIPLE OF
ASSISTANCE
The UN through a Resolution by the Security Council and would call out all its
members to enforce the order of the security council then all its members have no other
resort except to comply.

DIFFERENTIATE: NEUTRALITY V. NEUTRALIZATION


1) Neutrality is a statue that would be obtained during war. Is a status created under Intl
law by means of a stand on the part of the state not to fight with any of the parties at
war.
Neutralization is a status created by means of a treaty. A treaty agreed upon by state
that a certain country is a neutralized state

2) Neutrality is brought by a unilateral declaration by a neutral state


Neutralization cannot be effected by a unilateral act, this must be brought about by the
act of other states confirming their status on the neutralized state.

3) In neutrality it is implied that there is a war going on, and a state on its own declare its
neutrality
In neutralization that cannot be effected by your own unilateral declaration, other
states must agreed and as a matter of fact, other states must confer upon you that you
are a neutralized state.

ASSOCIATED STATE

A state created when --- called the associate entered into an agreement w/ independent
state which is called the principal. The principal grants the associate internal self-government,
while its foreign relations will depend upon and dictated by the principal.

SUCCESSION OF STATES

When is there a succession of State?


When a state is extinguished or created as a result of either revolution,
unification, petition or assertion of independence, agreement, attainment of civilization.

Philippines was once under the control of the Spaniards and again under the Americans
– assorted independence

Public International Law - Atty. Israelito Torreon


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ABSORPTION OF STATE
VIEWS OF DIFFERENT AUTHORS
1) By American Author (Gessup)
2) By Bernas
3) By Cruz and Salonga

TERRITORY
Ways: Succession of States

1) Conquest - One of the major causes of succession

2) Absorption - Consensual integration of one state into another


The absorbed state knowingly and freely allow itself to be absorb by another
state, but when it allows itself to be absorbed, it censed to exist as an entity

3) Merger - Consensual combination of 2 states into a new state.


An independent state with its own Intl personality merging it w/ another
independent state and they retain their individual personality. Unlike absorption where
one ceased to exist as an entity.

PARTIAL STATE SUCCESSION


1) Cession - Voluntary transfer, consensual transfer of territory of one state to another
usually through a treaty of cession
Ex. By purchase, such as Lovisiana

2) By Prescription - When a property is abandoned by another and it is so occupied by


another one under a bona fide claim of ownership

By Bernas, Cruz & Salonga

 Just declared generally


 Also followed the same way of succession such as revolution, unification etc.

What is the effect in so far as territory is concerned?

By Bernas
With respect to territory, the capacity, rights and duties of the predecessor state
terminates and assumed by the successor state.
When there is total succession, the capacity, rights and duties of the predecessor
state are transferred to the absorbing state.

Public International Law - Atty. Israelito Torreon


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PROPERTY

1. Public Property

By American Author (Gessup)


Those property owned by the government, it depends upon the extent of succession

When there is total succession:


The successor is entitled to all public property, both within its territory and including
government properties abroad.

When there is partial succession:


The predecessor state retains the right to public property in its remaining territory.
Predecessor state remains to be the owner of all properties abroad.

What if there are 2 successor states w/ conflicting claims outside the boundaries of
either state?
This is a political question and there is no legal rule on the matter.

According to Fr. Bernas


When part of the territory of the state becomes territory of another state,
property of the predecessor state located in the territory passes to the successor state –
(same to partial succession by Jessup)

Where a state is absorbed by another state, property of the absorbed state,


wherever located, passes to the absorbing state (same w/ total succession by Jessup)

Where part of a state becomes a separate state, the property of the predecessor
state located in the territory of the new state passes to the new state

2. Private Property

Hague Regulations of 1907 – private property right of individual do not last upon a state
succession. So private property is not affected.

As to private property, Fr. Bernas, Cruz and Salonga is silent on the matter.

3. National Debt
No acceptable rule on the matter (Gessup)

POSSIBLE RULE: Successor state are subject to the entire national debt if they acquire
the whole territory, or a proportions hare if the successor state
acquire less than the whole territory.

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By Bernas
Subject to the agreements between states concerned.

Absent any agreement, then that is the debt of predecessor state

EXCEPTIONS:
1) Where part of the territory of a state becomes territory of another state, local
public debts and rights and obligations of the predecessor state under contract
relating to that territory are transferred to the successor state.
2) Where the state is absorbed by another state local public debts, and rights and
obligations of the predecessor state under contract relating to the territory of the
new state pass to the new state.
3) Where part of a state becomes the separate state, local public debt and rights
and obligations of the predecessor state under contract relating to the territory
of the new state pass to the new state.

By Cruz
All liabilities are extinguished. Successor state is under no obligation to succeed
liabilities of the predecessor state. The successor state in the ___ of his will shall
maintain what commitment are they going to comply.

No difference between the view of Bernas and American author

Rule to be followed
VIEW OF CRUZ all liabilities are extinguished when there is succession, all rights are
inherited, all obligations not inherited.

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TREATY

What happen to treaties entered when there is state succession.

By American Author:
BASIC RULE
 The successor States are bound to observe treaties as evidence general rule of
international law
 Successor states are also bound to observe dispositive treaties
 General treaties must be followed & so called dispositive treaties

DISPOSITIVE TREATIES
 As a general rule, must be observed
 Treaties concerned w/ rights over territory such as boundaries and
servitudes

UTI POSETIDIS RULE


Pro-existing boundaries and other territorial agreements continue to be binding
now/standing succession.

By Bernas:
Gen. Rule: Follow the Vienna convention on the law of treaty.

By Cruz:
Treaties of a political as well as commercial nature, & treaties of extradition are
discontinued.
EXCEPT:
Those dealing with local rights & duties
Those establishing easements and servitudes

PP v. PERFECTO
93 PHIL 887

Gregorio Perfecto was the publisher of the newspaper called La Nacion

Sometime on Aug 20, 11920, the Secretary of Phil Senate, Fernando Guerrero,
discovered certain documents w/c constituted the records of a testimony. There was an
investigation conducted concerning oil companies on unjust increase of oil prices. The
record containing the investigation disappeared from his office

Public International Law - Atty. Israelito Torreon


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He informed the Phil Senate of the loss of the documents and the steps that he
undertook to discover the guilty party. However, despite that, no information has been
given as to who was responsible for the loss of said documents

Hence, Mr. Gregorio Perfecto, in his article in La Nacion, attacked such failure to
pinpoint who was responsible for the loss of the documents. He stated in his newspaper,
“Half a month had elapsed since the discovery for the first time of the scandalous
robbery of records which were kept and preserved in the Office of the Senate, yet up to
this time there is no a lightened inhibition (?) that the author or the authors of the crime
will be discovered

He attacked the Senators, by saying, “How many of the present Senators can say
without remorse in their conscience and with serenity of mind that they do not owe their
victory to electoral robbery. Senators sponsored a resolution recommending for his
indictment and the attorney general filed a case for libel against him under Art 258 of the
Spanish Penal Code

He was convicted in the municipal court. When appealed to CFI – manila, his
conviction was affirmed. In his appeal to CFI, he interposed the defense that Art 258
does not apply anymore because this was the Spanish Penal Code. And Spanish Penal
Code ceased its effectivity upon the assumption of the American Rule.

SC RULED IN FAVOR OF PERFECTO


Reasons:
1) Phil Senate already passed the Phil Libel Law and upon the passage of such law, it
effectively repeated Art 258 under the Spanish Penal Code
2) It is a general principle of public law that on acquisition of territory, the previous
political relation of the ceded region are totally abrogated.
3) Case cited: Chicago Rass island & Pacific Railway Crop vs. Modean

As a matter of course, all laws, ordinances and regulations in conflict with the
political character, institution and constitution of the new government are once
displaced.

BASIC RULE
Successor states are bound to observe treaties as evident general rule of international
law and successor state shall observe dispositive treaty (or treaty concerned w/ rights over
territory such as boundary and servitude)

Other Rule By American author:

1. Merger Rule

Public International Law - Atty. Israelito Torreon


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When two state merges to form a new state, then the pre-existing treaties
remain in force in the territory where they previously apply.

2. Moving Treaty Rule or Moving Boundaries Rule


Treaties of the absorbing state displaced the treaty of the receiving state in the
territory where sovereignty has changed.

MOST FAVORED NATION CLAUSE


If you are a most favored nation, you grant any and all privileges granted
to any other state.

Ex. If Phil is granted a most favored nation clause by USA, then the Phil will also
have the same privileges granted to any other state. For instance, Israel is
granted no tax on export Phil can also avail that.

3. Clean Slate Doctrine


An ex-colony is under no obligation to succeed to the treaty of its former colonial
power

By Bernas

GEN RULE: Vienna Convention must be followed


1) When part of a territory of a state becomes territory of another state, the International
agreements of the predecessor state are deemed have an effect in respect to the
territory and the international agreement of the successor state comes into force there.

Ex. X has no more obligation to enforce the treaty w/ B to YA. Y has the
prerogative to extend the effect of the treaty w/ A to YA. A may get away w/ the treaty
and invoke the principle of rebus sic stantibus.

REBUS SIC STANTIBUS


When there is a material breach, impossibility of performance and change of the
fundamental condition of a party. There is a radical transformation of the extent of the
obligations imposed by it.

2) When a state is absorbed by another state, the Intl agreements to the absorbed state
are terminated and the Intl agreements of the absorbing state become applicable to the
territory of the absorbed state

 When part of a state becomes a new state, the new state does not accede to
International agreements to which the predecessor state was a party.
 Treaties entered into by the predecessor state, the new state is under no
obligation to comply with the said treaty.

Public International Law - Atty. Israelito Torreon


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 Unless, expressly or by implication, it accepts such agreements and the other party
thereto agree (CLEAN STATE RULE)
 New state can be like to ex-colony, and as such it has no obligation to succeed to the
treaty of its former colonial power

PRE - EXISTING BOUNDARIES – territorial agreements continue to be binding


notwithstanding succession (UTI TOSETIDIS RULE)

They followed the decision of PP vs. Perfectionists of Political nature and even
commercial nature, as well as treaties of extradition are discontinued except those
dealing with local rights.

Political laws of the former sovereign are automatically abrogated and may be
restored only through a positive act of the new sovereign.

CLEAN STATE DOCTRINE


All advanced that, non-political have each as dealing with familial relations are deemed
continued unless changed.

VILLAS v. CITY OF MANILA


229 PHIL
When there is state succession, municipal law remain in force if there is a change of
sovereign.

CLAM FOR INJURY

What is the rule when there is state succession in so far as claims for injury are
concerned?

BY American Author - Successor state is not liable for injuries caused by predecessor state,
except if it adapts as its own the conduct which cause the injury.

BY Bernas – NO OPINION

BY CRUZ - Liabilities are not inherited by the successor state.

AS TO NATIONALITY
What happens to the nationality of the persons in the succeeded state or in the
predecessor state.

Public International Law - Atty. Israelito Torreon


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BY American Author
Nationality remained unchanged, unless some alternative or ungement is made by a
treaty or legislation

SUCCESSION OF GOVERNMENT
 Distinguish whether the new government was organized by virtue of a constitutional
reform; or the new government was establish through violence.
 If the new government was formed peacefully or through constitutional processes, then
all rights and obligations are assured by the successor gov.,
 If the government was established through violence, such as revolut9ion; all rights are
succeeded by the successor government.
 But it may lawfully reject purely personal or political obligation of the predecessor
government, but not those contracted by it in the ordinary course of official business
 Arroyo government if considered revolutionary government, it can lawfully reject any
and all obligations incurred by the Estrada government
 Writing off of obligation, in international law, is binding provided made for a bona fide
public purpose.

Public International Law - Atty. Israelito Torreon


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TERRITORY
Contiguous Zone - water beyond the territorial sea but nit beyond 12 miles from the outer
limit of the terriutorial sea which the coastal state exercises a protective jurisdiction
infringement of its custom, fiscal immigration, sanitation laws (CFIS).

 in case of violation of CFIS, the state can arrest and punish the
violators.

 Continental shelf / Margin – (200 meters deep) comprises sea bed and subsoil of
the submarine areas that extend beyond its territorial sea to the other edge of the
continental margin.

 UNCLOS definition- distance of ZOO NM from the baselines from which the breadth
of the territorial sea is measured where the edge of the continental margin does not
extend up to that distance.

* not regarded as a part of the territory of the state although has the right to
exploit and explore its natural resources.

 Sovereign right to explore the continental shelf and may erect on it such installations
and equipment as may be necessary for the exploitation of the natural resource therein.

Continental Margin
 CS or 200 NM
 Comprises submerged prolongation of land mass of the coastal state and corrals of the
seabed and subsoil of the shelf the slope and rise.
 CAVEAT – does not include to deep ocean floor or oceanic ridges
 Does not extend beyond 200 NM but a state claim can nonetheless extend
 Beyond 2300 NM (continental shelf – 1st portion – 350 NM- maximum (continental shelf
– 2nd)

EEZ- Exclusive Economic Zone


 from the territorial sea up to 200 NM or the 1st portion of the continental shelf
 coastal rights include CFIS also
 coastal states have control over the following, they can exploit, explore.
1. Non-living
Resources including seabed, subsoil and superjacent waters
2. Living resources – fish, crustaceans and plants
3. Other economic resources such as production of energy from currents and winds
4. Artificial islands, installation and structures
5. Conduct scientific research
6. Pollution control

Public International Law - Atty. Israelito Torreon


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Rule for overlapping EEZ to other country


 Two methods
1. equidistance method- no longer used nowadays.
2. equitable method/principle – UNCLOS resolved through agreement as to the
limitation. If no agreement, apply procedures in int’l law (peaceful method)

Q. Is oil included in EEZ also?


R. Yes.

Rule in case of conflict in Territorial sea (close territorial sea)


 agreement as to the boundaries. If no agreement, median line is used.
Exception:
1. historic titles
2. special circumstances rule
- applied by the courts in accordance of the rule of equity.

Rule in case of conflict of Contiguous Shelf


- none also!
 EEZ is sometimes regarded a s part of the high seas for the purposes of navigation and
not as part of the country’s territory
Law passed by Marcos provided for our EEZ P.D 1599 – June 11, 1978
 extending to a distance 200 NM
 except in accepted principles
 bigger by 132 sq. NM
 (Philippines)

High Seas – part of the seas that are not included in the EEZ in the Territorial sea or internal
waters nor in archipelagic waters of archipelagic states

Hugo Grotius – Mare Leberaum – high seas cannot be state properties, now the
accepted principles
Gentili – Mare Clausum – high seas can be state property ( Spanish
claimed pacific ocean)

High Seas – used for peaceful purposes and no state can subject any part of it.

Freedom of the High Seas – enjoyed by all nations including land-locked states

1. Freedom of Navigation
2. Overflight
3. Laying of submarine cables and pipelines
4. Fishing
5. Conduct motion of artificial islands
6. Scientific Research

Public International Law - Atty. Israelito Torreon


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In case of crime committed in the high seas?

Example: an Iranian and Iraqui in a Phil. Vessel – Flag State shall


exercise jurisdictiono

fiegs of convenience->no longer allowed


Genuine lint Rule-linkage between the ship and its flag

*Linkage must be real


*Ship shall be subject to one state only and one flag only
*Ship cannot change the flag on a voyage except there is a bonafide transfer of
ownership

Hot Pursuit
 Must begin on the Internal waters, Territorial sea, Archipelagic waters,
Continguous zone and EEZ.
 Must be conducted by a warship.

WARSHIP – ship belonging to the armed forces of the state bearing external marks under the
command of an officer duly commissioned by the captain of the state and whose name appears
on a appropriate service list and manned by a crew under regular armed forces of a state.

 Fleeing ship if entering another state or its own state, warship cannot enter that
state.

 Cannot claim innocent passage because you are actually pursuing.

Rights of Warship on High seas:

 It may visit or approach a foreign ship not another warship, when there is
reasonable ground. The following are reasonable grounds:

1. Piracy
2. Slave trade
3. Unauthorized broadcasting
4. Using a different flag
5. Without Nationality

Warships may seize ship, aircrafts controlled by pirates.

Deep Sea Bed

 Can be found in the high seas


 UNCLOS provides for ISA – Int’l Seabed Authority
- It has the right to exploit the deep sea bed or grant licenses to states wanting to
exploit the resources of deep seabed.

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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JURISDICTION
 Aspect of Sovereignty
 Right and competence of a state

Elements of Jurisdiction:
1. Legislative Jurisdiction
Legislative on prescription of norms and conducts.

2. Executive Jurisdiction
Power to enforce the norms and conduct set by the legislative.

3. Judicial Jurisdiction
Jurisdiction to adjudicate
International Law – only on criminal matters.

Principles:

1. Territorial – vests in the state where the offence was committed.


- Subject to the rules, jurisdiction over all persons
- Has jurisdiction over a foreign only absolute but not exclusive.

2. Nationality – states have jurisdiction over their nationals wherever they may be.
- Philippines follow territorial jurisdiction as regards to criminal aspect.

3. Protective – vests jurisdiction in the state whose national interest is injured, as in the
case of counterfeiting, treason or espionage.

4. Universality – any state to exercise jurisdiction over crimes against int’l law
regardless of where they are committed or who whether they are nationals or non-
nationals.
- only legislative and judicial jurisdiction not executive.

5. Passive Personality – determine the jurisdiction of the state by reference to their


nationality or naturalized character injured in the offense.
- Vests in the state of the offended party.

Jurisdiction over warship


 If warship violates the laws of state, the coastal state, which has jurisdiction, cannot
have jurisdiction over the matter in the absence of a treaty but he can only ask the
warship to leave.

 Warships are immune from local jurisdiction and the immunity extends to internal
dispits.
Exception: when on duty, they are immune; when off duty or furlough, they are
subject to local laws.

Public International Law - Atty. Israelito Torreon


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Gen. Rule: If there is a treaty, the provisions in the treaty shall prevail.

Without a treaty, coastal state cannot have jurisdiction.


To enter a country without its permission is a violation.
If the entry is involuntary such as distress, rule is that the flag ship shall have
jurisdiction.

Extradition
Definition – Delivery of the accused of a convicted individual to the state in whose
territory he is alleged to have committed the crime y the state to whose the alleged
criminal happens to be there at that time.

If there is no extradition treaty – the country cannot hand over the criminal. (Eichman
Case)

Without extradition treaty, it is a matter of Int’l comity/courtesy. Axample: Mishari, was


surrendered by Malaysia.

Bishop’s definition of extradition:

Amounts to the delivery by the sate of a persona caused/convicted of a territorial


jurisdiction actual or constructive it was committed and which ask for his jurisdiction with a
view to justice.

Crimes of Extradition Treaties:


2 kinds:
1. Specific list treaty – when the crimes are so specified in the treaty; crimes are
enumerated.
2. No list treaty/principle of double criminality
The treaty does not provide a list of crime

 Only that the crimes must be punishable in both states even if it is termed in
different manner.

Fundamental Principle:

1. No legal obligation to surrender a criminal unless there is a treaty.


2. Religion & political offenses are not extraditable

Reason:

a. Political offenses deserve humanitarian view and political treatment.


b. Right to revolt against tyranny – entitled to political asylum
c. Principle of neutrality

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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Political Offense:

1. Pure political offense


When an act is decided exclusively against the political order of the state, including
the independence, integrity of its territory, relation with other state, form of
government, and organization of public powers, mutual relation or instruct political
rights of the citizens.
Example: MILF segregate Mindanao – PURE POLITICAL OFFENSE

2. Relative political offense


An act in which a common crime is either implicitly or connected to a political act.
Example: Rebellion

IN RE CASTIONI CASE

(Similar with Ppl vs. Hernadez)

 Castioni is a member of the armed group, requested for a revision of the constitution
 Went to England
 Extradition sought
 He filed a habeas corpus on the ground of political offense.
 Ruling of the English court:

 He was a political offender


 Murder was done in connection of a political offense
 Hence he cannot be extradited.

IN RE MIEUNIER CASE:

 Anarchist, does not believe in any law. Went to another state.


 Extradition sought
 Defendant was a political offender but he was extradited.

Ruling: To constitute an offense of a political character there must be 2 or more states –


THIS PRINCIPLE IS NOT APPLICABLE TODAY, TOO NARROW DEFINITION.

REGINA VS. GOVERNOR OF BRIXTON PRISON (1954)

 Polish nationals on a fishing vessel over power a naval vessel.


 Constitutes mutiny – they did this because they suffered repression from the state.
 English Ruling: Offense is political in character.

Public International Law - Atty. Israelito Torreon


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EX PARTE OCHTUAXS

 Jewish couple no more work, left their children to the grandparents.


 Wanted to get the children but grandpa n ma wont let them.
 Uncle abducted the child then went to England.
 Sought extradition.
 Ruling: Not a political offense. The action of the accused were privately motivated.
 He is extraditable.

PEOPLE VS. HERNANDEZ (FOLLOWED BY THE PHILIPPINES)

Covers pure and relative political offenses

1. Persons extradited can only be prosecuted for the offenses he was extradited
mentioned in the request. He cannot be prosecuted for a lesser or greater offense.

Exception: The charge can be changed to a lesser offense where the requested state
consents.

2. Unless provided for in a treaty, the crime must have been committed in the territory
of the requesting state.

Coquia agrees with this principle.


Bishop, however, does not follow this principle.

Int’l Law:
1. Must first apply the provisions of the treaty.
2. If there is no treaty, can follow Coquia or Bishop.

Procedure & Law of Extradition


 P.D. 1069, January 13, 1977
 Must be through a diplomatic note which includes:
a. criminal charges
b. warrant of arrest
c. etc.

DFA – DOJ (carefully studies the paper, if yes, files the appropriate petition – RTC

JIMENEZ CASE

Q. When was the treaty between U.S. & Phil. Signed?


A. Nov. 13, 1994 (signed)
Nov. 29, 1995 (Concurred by congress)

Public International Law - Atty. Israelito Torreon


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DFA (Department of Foreign Affairs)

DOJ (Department of Justice)


- Whiled the papers where still in the DOJ, Jimenez filed an injunction.
- RTO granted the TRG from filing the extradition
- SC: 9 – to vote the petition was dismissed in other words, Jimenez won; TRO was
still granted.
- Motion for recon was filed: Jimenez lost.
- While a case is still in the DOJ, you have no right to be furnished with the copy.

 DOJ filed the extradition case to RTC

RTC (Regional Trial Court)

- Immediately filed an urgent Manifestation/Motion to set the case or warrant.


(discuss whether it is proper to issue a warrant of arrest
- Bail was set for 1M

ISSUE:

1. Whether or not the extradity has the right to be informed before a warrant of arrest is
issued?

2. Should bail be granted while the extradition is still going on? (mali man ni!)

Supreme Court Ruling:

 5 Potulates of Extradition:
1. Extradition is a major instrument for the suppression of crime.
2. The requesting state will accord due process to the accused.
3. proceedings are accordingly “soy generic”

Meaning:
 Not criminal in Nature
 Summary in nature while a criminal procedure involves full blown trial
 Allows stringent evidence while criminal procedure involves reasonable doubt
 Essentially executive in nature not judicial

Role of the Court:

1. To determine whether the procedure is in accordance with a treaty.


2. Whether the person is extraditable.

4. Requires compliance in good faith. “PACTA SUNT SERVANDA”

5. There is accordingly risk of flight/person extradited is flight risk.


PD 1069, Sec. 6

Public International Law - Atty. Israelito Torreon


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 Issuance of summons… upon the receipt of the petition must summon the accused.

 United Nations

League of Nations

 Formed after the 1st WW


 Defect – Without the participation of U.S.A.
 Its purpose:
1. The Promotion of Int’l Cooperation
2. Achievement of Peace & Security
 A state that resorts to war is in violation of pacific settlement of dispute.
 A member can still exercise its independence.
 It officially dissolved on April 19, 1946.

Outlaws various objectives, methods & means of fighting.


- Seeks to protect the innocent & wounded.
- Seeks to punish violates

1. Unlawful objectives

- Gen. Rule : Military objective are proper targets of an armed attack civilians & civilian
property are not.
- Illegitimate targets – targets w/c may not be attacked or destroyed by may be captured or
seized.

2. Unlawful Methods – of attacking an enemy

- Masseurs
- Starvation of civilian pap.
- Perfidy, including feigning of :
a. an intent to negotiate under a flag of truce or surrender
b. being worked or sick.
c. Having a non-combatant status
d. Having protected signs, emblema & uniforms of the UN or a neuter state.
- Treachery

3. Unlawful Means
- Basic Rule: weapons that cause unnecessary suffering or enperfluena injury are illegal.
- Indiscriminate weapons – weapons that cannot, because of then design or function, be
directed w/ any degree of certainly at military objectives.
a. Poison Biological weapons, Chemical weapons, Offensive mines.
- Nuclear Weapons – determining a nuclear weapon,
1) size; 2) they may its used.
- superfluous weapons – weapons designed simply to increase the injury suffered by ind’ls.

Public International Law - Atty. Israelito Torreon


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The Fraternal Order of St. Thomas More
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4. Humanitarian Rules
- Rules that provide for the protection of non-combatants and dissolved or captured
combatants.

5. Enforcement
- Wars crimes – violation of the rules of warfare
- gov’ts & individuals may be tried.
- more may try a man criminal?
- any state
- only the victors
- unprivileged belliguents – I’c who are neither combatants an civilians such as spies &
mercenaries
- not protected by the law of warfare.

Treaty of Versailles
1. London Declaration
 need to work together for peace.

2. Atlantic Charter
 Established a wider and permanent system of general security

3. Declaration of United Nations

4. Moscow Declaration
 Issued in Nov. 1943 by China, Soviet Union, UK of Great Brit & Northern Ireland
& U.S.A.
 Necessity of establishing at the earliest practicable date a general int’l
organization composed of peace loving states.

5. Teheran Conference

6. Dumbarton Dates Proposal


 Adopted a plan for the establishment of general Int’l organization.
 4 countries plus France

7. Yalta Formula
 Roosevelt, Churchill and Stalin agreed to call a conference to draw up the charter
of the organization.
 Agreed on a formula for voting in the SC.

8. San Francisco Conference


 Basis for drafting the Charter – Dumbarton Oaks Proposal as supplemented at
Yalta.
 Draft for statue of ICJ based on the Statute of the Permanent Court of Int’l
Justice.

Public International Law - Atty. Israelito Torreon


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Charter was signed on June 26, 1945


The name United Nations was adopted as attribute to Roosevelt.

UN officially came into existence on Oct. 24, 1945


Purpose of UN

1. To maintain international peace and security.


2. To develop friendly relations among nations
3. To cooperate in solving int’l eco’c social, cultural and humanitarian problems and
promoting respect for human rights.
4. Center for harmonizing the actions of Nations towards those common goals.

7 Cardinal Principles of UN

1. Sovereign Equality.
 Exemplified in GA
 Whatever country – 1 equal vote

2. Pacta Sunt Servanda

3. Peaceful Settlement of Int’l Disputes


 Onew of the most important principles of UN

4. Non-Usage or Use of force against the territorial Integrity or political independence of


any state
 Cannot attack any state just because that state will not grant your demands.
 The most important principle.

5. Principle of Assitance
 Every member is compelled to give assistance.
 In case of violation, Sanction: Suspension or Expulsion

6. Organization shall ensure the acts of those who are not members of UN to maintain
peace
 2003 – 190 members
Including Switzerland

7. Domestic Jurisdiction Clause


 Usually invoked by Indonesia and China
 Exception: Principle of Abatement. In this case cannot invoke Domestic
Jurisdiction Clause.

Read UN-Membership, Expulsion Withdrawal & its principal organs.. naa sa buk ni salonga

3. Judicial Jurisdiction
Jurisdiction to adjudicate

Public International Law - Atty. Israelito Torreon


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International Law – only on criminal matters.

 Principles:
1 Territorial – vests in the state where the offence was committed.
- Subject to the rules, jurisdiction over all persons
- Has jurisdiction over a foreign only absolute but not exclusive.

2. Nationality – states have jurisdiction over their nationals wherever they may be.
- Philippines follow territorial jurisdiction as regards to criminal aspect.

3. Protective – vests jurisdiction in the state whose national interest is injured, as in the
case of counterfeiting, treason or espionage.

4. Universality – any state to exercise jurisdiction over crimes against int’l law regardless
of where they are committed or who whether they are nationals or non-nationals.
- only legislative and judicial jurisdiction not executive.

5. Passive Personality – determine the jurisdiction of the state by reference to their


nationality or naturalized character injured in the offense.
- Vests in the state of the offended party.

 Jurisdiction over warship


 If warship violates the laws of state, the coastal state, which has jurisdiction,
cannot have jurisdiction over the matter in the absence of a treaty but he can
only ask the warship to leave.

 Warships are immune from local jurisdiction and the immunity extends to
internal dispits.
Exception: when on duty, they are immune; when off duty or furlough, they are
subject to local laws.

Gen. Rule: If there is a treaty, the provisions in the treaty shall prevail.

Without a treaty, coastal state cannot have jurisdiction.


To enter a country without its permission is a violation.
If the entry is involuntary such as distress, rule is that the flag ship shall have
jurisdiction.

Extradiction
Definition – Delivery of the accused of a convicted individual to the state in whose
territory he is alleged to have committed the crime y the state to whose the alleged
criminal happens to be there at that time.

If there is no extradition treaty – the country cannot hand over the criminal. (Eichman
Case)

Public International Law - Atty. Israelito Torreon


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Without extradition treaty, it is a matter of Int’l comity/courtesy. Axample: Mishari, was


surrendered by Malaysia.

 Bishop’s definition of extradition:

Amounts to the delivery by the sate of a persona ccused/convicted of a territorial


jurisdiction actual or constructive it was committed and which ask for his jurisdiction with a
view to justice.

 Crimes of Extradition Treaties:


2 kinds:

1. Specific list treaty – when the crimes are so specified in the treaty; crimes are
enumerated.

2. No list treaty/principle of double criminality


 The treaty does not provide a list of crime
 Only that the crimes must be punishable in both states even if it is termed in
different manner.

 Fundamental Principle:
3. No legal obligation to surrender a criminal unless there is a treaty.

Public International Law - Atty. Israelito Torreon


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Law of War
(jus ad beleum)

- concerned w/ the right to initiate war.


- When wars may be fought
- When armed force maybe used.

Law of Warfare (jus in bells)


- concerned w/ the rules that apply during war
- conduct of warfare
- limits on the use of armed force.

War – state of force bet. States w/ suspension of peaceful relations.


Based on : 1) war is a dispute bet states & not bet, ind’ls
2) all peaceful relation have to be severed bet, I states of a state of war can exist.

- war may not always fought bet. States


- Parties may prefer to call an armed confirmation something other than a war.
- War must be of sufficient scale & duration that, in essence, it is a threat to the existence of
the gov’t of a Date.

Contemporary definition of war:


- a sustained struggle of a scale & duration that threatens the existence of the gov’t.
of a state or an equivalent juridical.
- Waged between groups of armed forces that are armed, wear a distinctive…
insignia, & are subj. to military discipline under a responsible command.

LAW OF WAR
- UN Charter Prohibits war.
Exceptions: 1) Actions undertaken or authorized by the UN
2) Self-defense
3) Fighting a “Non-International” or civil war.
Caveat: 4) The use of armed force against any state w/ during the 2 nd ww
cannot was an enemy.
Be used
Remove!

Exceptions:

1. Actions undertaken….
- Chap. 7 of UN charter authorizes the SC to appropriate action is response to any threat to
peace, breach of peace or act of aggression.
- SC must determine the existence of any threat to the peace…

Act. 39 – limitation: cannot interfere w/ matters w/c are essentially w/in the domestic
jurisdiction of any state.

Public International Law - Atty. Israelito Torreon


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Act 40 – Sanctions: Provisional measures in order to prevent an aggravation of the situation.

Ex-of provisional measure: 1) resol’n calling for a cease – fire


Economic Sanction – completion partial interception of eir’c relations & of rail, sen,
air, pestal, telegraphic, radio & others measure of communication.

2. Self-defense
- Caroline case: Requires that a state claiming self-defense must show 3 things:
1. There must be necessity of self-defense the action taken must be in response to
some provocation & thusly justified.
2. Provocation must have been “instant, overwhelming leaving no choice of means, & no
moment for deliberation”
3. Actions must be “proportionate to the seriousness of the circumstances: it must be
“limited by that necessity, & kept clearly w/in it.

Collective Self-defense
Requirement: 1) The state being helped must be entitled to defend itself
2) The state in need of assistance must seek help.

3. Civil Wars – an exception to the UN charter.


- Gen. Rule : foreign states are forbidden from aiding the insurgents in a civil war.

- Traditional Collonaly rule: foreign states may intervene on behalf of an established gov’t.

- Modern Practice: foreign states will not intervene on behalf of either side.
- EXCEPTION TO THE GEN. RULE: once established gov’t begins receiving outside aid, 3 rd
parties may intervene on behalf of the insurgents.

Public International Law - Atty. Israelito Torreon


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Goals Offices Mediation


1. most merely of bringing the 1. Rule is more active, he pro-
disputing parties together or poses a solution, offers his
providing the occasion for advise & in General attempts
negotiating to take place them. To conciliate differences.

Inquiry – establish of the facts involved in a dispute & the clarification of the issues in order
that their elucidation might contribute to its settlement.

Conciliation – process of settling disputes by referring them to commissions or other int’l


bodies, usually consisting of persons designated by agreement between the parties
to the conflict.

Conciliation Enguiry
1) main objects not only to 1) main object – establish the facts
elucidate the facts but to indispute & thereby prepare for a
bring the parties to an negotiated settlement.
agreement.

Arbitration – procedure for the settlement of dispute bet, states by a finding award or the
basis of law & as the result of an undertaking voluntarily accepted.

Arbitration Conciliation
1) legal oblig’n exists 1) practice are bound to adopt the
to comply w/ the award proposals for a settlement w/c are
of the arbitrator suggested to them.

2. Judicial process 2) bargaining process.

3. Judicial Jurisdiction
Jurisdiction to adjudicate
International Law – only on criminal matters.

 Principles:
1. Territorial – vests in the state where the offence was committed.
- Subject to the rules, jurisdiction over all persons
- Has jurisdiction over a foreign only absolute but not exclusive.

Gen. Rule: If there is a treaty, the provisions in the treaty shall prevail.

Without a treaty, coastal state cannot have jurisdiction.


To enter a country without its permission is a violation.
If the entry is involuntary such as distress, rule is that the flag ship shall have
jurisdiction.

Public International Law - Atty. Israelito Torreon


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