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PUBLIC INTERNATIONAL LAW (CRUZ) |2014

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PUBLIC INTERNATIONAL LAW 2. Dualists- who believe in the dichotomy


of the law, there are certain well
CHAPTER 1 established difference between
GENERAL PRINCIPLES international law and municipal law.

INTERNATIONAL LAW (IL) MUNICIPAL LAW INTERNATIONAL


LAW
- Traditional concept- a body of rules and
Issued by a Is not imposed upon
principles of action which are binding
political superior but simply adopted
upon civilized states in their relations
for observance by by states as a
with another. those under its common rule of
authority action among
- Schwarzenberger- is the body of legal themselves
rules which apply between sovereign
states and such other entities as have Consists mainly of Derived not from
enactments from any particular
been granted international personality.
the law-making legislation but from
DIVISIONS OF INTERNATIONAL LAW authority of each sources as
international
1. Laws of peace- govern the normal custom,
relations of states. international
conventions and the
2. Laws of war- when war breaks out general principles of
between or among some of them, the law
relation of these states cease to be Regulates the Applies to the
regulated under the laws of peace and relations of relations inter se of
come under the laws of war. individuals among states and other
themselves or with international
3. Laws of neutrality- those states not their own states persons
involved in the war continue to be
regulated under the laws of peace in
Violations of the Questions of
their relations inter se. however, their municipal law are international law
relations with the belligerents, or those redressed through are resolved
involved in the war, are governed by the local through state-to-
laws of neutrality. administration and state transactions
judicial process ranging from
INTERNATIONAL LAW V. MUNICIPAL LAW peaceful methods
like negotiations
1. Monists- There is no substantial and arbitration to
distinction between international law the hostile
and municipal law because they believe arbitrament of like
in the oneness or unity of all law reprisals and even
war
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Breaches of Responsibility of It should be presumed that municipal law is


municipal law infraction of always enacted by each state with due respect
generally entail international law is for and never in defiance of the generally
only individual usually collective in accepted principles of international law.
responsibility the sense that it
attaches directly ot CONSTITUTION V. TREATY
the state and not to
its nationals. Generally, the treaty is rejected in the local
forum but is upheld by international tribunals as
demandable obligation of the signatories under
the maxim pacta sunt servanda.

The position of the Philippines regarding this


It is possible for a principle of municipal law to
matter is clear enough. There can be no doubt as
become part of international law, as when the
to the meaning of our constitution when it
principle is embodied in a treaty or convention.
authorizes the SC to decide, among others, all
TWO THEORIES AS TO MANNER OF ADOPTING cases involving the constitutionality of “any
INTERNATIONAL LAW AS PART OF THE LAW OF treaty, international or executive agreement,
THE LOCAL STATE law…”

1. DOCTRINE OF INCORPORATION BASIS OF INTERNATIONAL LAW

- International laws are adopted as part of 1. Naturalist school of thought- there is a


a state’s municipal law, by affirming natural and universal principle of right
their recognition of the principles of and wrong, independent of any mutual
international law in their constitutions. intercourse or compact, which is
supposed to be discovered and
recognized by every individual through
the use of his reason and his conscience.
2. DOCTRINE OF TRANSPORMATION
2. Positivists- who that the binding force of
- Generally accepted rules of
international law is derived from the
international law are not per se binding
agreement of sovereign states to be
upon the state but must first be
bound by it.
embodied in legislation enacted by the
law-making body and so transformed 3. Eclectics or Grotians- both the law of
into municipal law. nature and the consent of states as the
basis of international law.
CRITERIA TO BE APPLIES IN RESOLVING
CONFLICTS BETWEEN INTERNATIONAL LAW SANCTIONS OF INTERNATIONAL LAW
AND MUNICIPAL LAW
1. Belief shared by many states in the
- To attempt to reconcile the apparent inherent reasonableness of
contradiction and thereby give effect, if international law and their common
possible, to both systems of law. conviction that its observance will
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redound to the welfare of the whole of certain common problems of a


society of nations. political, economic, cultural or
humanitarian character
2. But regardless of the intrinsic merit of
the rules of international law, they may 4. Aims to provide for the orderly
still be observed by states because of the management of the relations of states
normal habits of obedience ingrained in on the basis of the substantive rules they
the nature of man as social being. have agreed to observe as members of
the international community.
3. Respect for the world opinion held by
most states, or their desire to project an DISTINCTION WITH OHERS CONCEPTS
agreeable public image in order to
maintain the goodwill and favourable 1. International morality or ethics- those
regard of the rest of the family of principles which governs the relations of
nations. states from the higher standpoint of
conscience, morality, justice and
4. The constant and reasonable fear, humanity.
present even in the most powerful
states, that violation of international law 2. International comity- those rules of
might visit upon the culprit the courtesy observed by states in their
mutual relations, in that violations of its
retaliation of other states.
precepts are not regarded as
5. There is the machinery of the UN which, constituting grounds for legal claims.
within the sphere of its limited powers,
has on many occasions proved to be an 3. International diplomacy- relates to the
objects of national or international
effective deterrent to international
disputes caused be disregard of the law policy and the conduct of foreign affairs
of nations. or international relations.

FUNCTIONS OF INTERNATIONAL LAW 4. International administrative law- that


body of laws and regulations, now highly
1. To establish peace and order in the developed, created by the action of
community of nations and to prevent international conference or
the employment of force, including war, commissions which regulate the
in all international relations relations and activities of national and
international agencies with respect to
2. It strives as well to promote world those material and intellectual interests
friendship by levelling the barriers, as of which received an authoritative
color or creed, that have so far
universal recognition.
obstructed the fostering of a closer
understanding in the family of nations.

3. To encourage and ensure greater CHAPTER 2


international cooperation in the solution
SOURCES OF INTERNATIONAL LAW
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NOTE: The doctrine of stare decisis is not


applicable in international law, and so the
KINDS OF SOURCES decision of a subsequent case.
1. Primary/ direct sources

a. Treaties/conventions, whether CHAPTER 3


general or particular, establishing
rules expressly recognized by the THE INTERNATIONAL COMMUNITY
contesting states

INTERNATIONAL COMMUNITY
b. International customs- a practice
which has grown up between states - the body of juridical entities which are
and has come to be accepted as governed by law of nation.
binding the mere fact of persistent - Modern concept- it is composed not
usage over a long period of time. only of states but also of such other
international persons.
c. General principles of law SUBJECT V. OBJECT
recognized by civilized nations- the
general principles of law are mostly SUBJECT OF INTERNATIONAL LAW- is the entity
derived from the law of nature and that has rights and responsibilities under that
observed by the majority of states law. It has an international personality in that it
because they believed to be good can directly assert rights and be held directly
and just. responsible under the law of nations.

OBJECT OF THE INTERNATIONAL LAW- is the


person or thing in respect of which rights are
2. Secondary/ indirect sources held and obligations assumed by the subject.
a. Decisions of courts- art 38 of the STATES
statute of ICJ does not distinguish
between those rendered by - A group of people living together in a
international tribunals and those definite territory under the independent
promulgated only by national courts government organized for political ends
and capable of entering into
b. Writing of publicists-must also be, international relations.
to qualify as such, a fair and
unbiased representation of
international law, and by an
ELEMENTS:
acknowledged authority in the field.
1. A permanent population- Human being
living within its territory
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2. Defined territory- fixed portion of the which upon merger cease to be


surface of the earth in which the people states, resulting in the creation
of the state reside of a new state with full
international personality to
3. Government- agency through which the
represent them in their external
will of the state is formulated, expressed relations as well as a certain
and realized. degree of power over their
4. Sovereignty or independence- external domestic affairs and their
aspect or manifestation of sovereignty, inhabitants. i.e. US
that is, the power of the state to direct 3. Confederation- is an
its own external affairs without organization of states which
interference or dictation from other
retain their internal sovereignty
states. and, to some degree, their
CLASSIFICATION OF STATES external sovereignty, while
delegating to the collective body
INDEPENDENT STATES power to represent them as a
whole for certain limited and
one which is not subject to dictation
specified purposes.
from others in this respect
4. Personal union- comes into
a. Simple States- one which is placed
being when two or more
under a single and centralized
independent states are brought
government exercising power over
together under the rule of the
both its internal and external affairs
same monarch, who
b. Composites States- two or more nevertheless does not become
states, each with its own separate one international persons for
government but bound under a the purpose of representing any
central authority exercising, to a or all of them.
greater or less degree, control over
5. Incorporate union- two or more
their external relations.
states under a central authority
empowered to direct both their
external and internal affairs and
1. Real union- created when two possessed of a separate
or more states are merged international personality.
under a unified authority so that
they form a single international NEUTRALIZED STATES
person through which they act
An independent state, whether it be
as one entity.
simple or composite, may be neutralized
2. Federal union- is a combination through the agreement with other states by
of two or more sovereign states virtue of which the latter will guarantee its
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integrity and independence provided it refrains relations are transacted with other states. As
from taking any act that will involve it in war or such, therefore, it has no legal standing in the
other hostile activity except for defensive family of nations. Nevertheless, such entities
purposes. have been allowed on occasion to participate in
their own right in international undertaking and
DEPENDENT STATES granted practically the status of a sovereign
An entity which, although theoretically state.
a state, does not have full freedom in the
MANDATES AND TRUST TERRITORIES
direction of its external affairs. It fall into two
general categories: The system of mandates was established after
the World War I in order to avoid outright
a. Protectorate- which is established at the annexation of the underdeveloped territories
request of the weaker state for the taken from the defeated powers and to place
protection by string power their administration under some forms of
b. Suzerainty- which is a result of a international supervision.
concession from a states to a former
Kinds of trust territories:
colony that is allowed to be independent
subject to the retention by the former 1. Those held under the mandate under
sovereign of certain power over the the league of nations
external affairs of the latter.
2. Those territories detached from the
UNITED NATIONS defeated states after world war II

UN is not is state or a super state but a 3. Those voluntarily placed under the
mere organization of states, it is regarded as an system by the states responsible for
international person for certain purposes. their administration.

THE VATICAN CITY BELLIGERENT COMMUNITIES

The holy see has all the constituent element of When a portion of the population rises up in
statehood ( people, territory: 108.7 acres; arms against the legitimate government of the
government with the pope as head; and states. The upheaval is ordinarily regarded as a
independence by virtue of the Lateran Treaty of merely internal affair, at least during its initial
February 11,1929, which constitutes the Vatican stages. The state is held responsible for all
as a territory under the sovereignty of the Holy injuries caused upon third states. For the
See. It has all the right of a state, including purpose of the conflict, and pending
diplomatic intercourse, immunity from foreign determination of whether or not the belligerent
jurisdiction. community should fully recognized as a state, it
is treated as an international persons and
COLONIES AND DEPENDENCIES becomes directly subjects to the laws of war and
A colony or a dependency is part and parcel of neutrality.
the parent state, through which all its external
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A inchoative state- it is vested with full rights of necessary for the maintenance of
visitation, search and seizure of contraband international peace and security.
articles on high seas, blockade and the like.
AMENDMENTS
INTERNATIONAL ADMINISTTATIVE BODIES
- When they have been adopted by the
Created by agreement among states vote of 2/3 of the members of the
may be vested with international personality general assembly and ratified
when two conditions concur, to wit, that their accordance with their respective
purposes are mainly non-political and that they constitutional processes by 2/3 of the
are autonomous. members of the U.N., including all the
permanent members of the Security
Examples: international labor
Council.
organization, food and agricultural organization,
world health organization - a GENERAL CONFERENCE may be called
by majority vote of the general assembly
INDIVIDUALS and any nine members of the security
Individual only as an object of council for the purpose of reviewing the
international law who can act only through the charter. Amendments may be proposed
instrumentality of his own state in matters by the vote of 2/3 of the members of the
involving others states. general assembly and ratified
accordance with their respective
CHAPTER 4 constitutional processes by the 2/3 of
the members of the U.N., including all
THE UNITED NATIONS
the permanent members of the Security
Delegate of fifty nations met at the San Francisco Council.
conference from April 25, to June 26, 1945, and
THE PREAMBLE OF THE CHARTER
prepared and unanimously approved the charter
of the United Nations. This came into force on - introduces the charter and sets the
October 24, 1945. common intentions that moved the
original members to unite their will and
THE U.N. CHARTER
efforts to achieve their common
- Is a lengthy document consisting of 111 purpose.
articles besides the preamble and the
PRINCIPAL PURPOSES OF U.N.
concluding provisions.
1. to maintain international peace and
- May be considered a treaty because it
security
derives its binding force from the
agreement of the parties to it. 2. to develop friendly relations among
nations
- Intended to apply not only to the
members of the organizations but also 3. to achieve international cooperation in
to non-member states so far as may be solving international problems and in
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promoting and encouraging respect for Nations act in accordance with these
human rights and fundamental Principles so far as may be necessary for
freedoms. the maintenance of international peace
and security.
4. To be a center for harmonizing the
actions of nations in the attainment of 7. Nothing contained in the present
these common ends Charter shall authorize the United
nations to intervene in matters which
PRINCIPLES are essentially within the domestic
1. The organizations is based on the jurisdiction of any state or shall require
principles of the sovereign equality of all the Members to submit such matters to
its members settlement under the present Charter;
but this principles shall not prejudice the
2. All members, in order to ensure to all of application of enforcement measure
them the rights and benefits resulting under Chapter VII
from membership, shall fulfil in good
faith the obligations assumes by them in MEMBERSHIP
accordance with the present charter. KINDS:
3. All Members shall settle their 1. Original- those states which, having
international disputes by peaceful participated in the U.N conference on
means in such a manner that
international organization at San
international peace and security, and Francisco or having previously signed
justice, are not endangered. the declaration by U.N of January 1,
4. All Members shall refrain in their 1942, signed and ratifies the charter of
international relations from the threat the U.N.
or use of force against the territorial 2. Elective
integrity or political independence of
any state, or in any other manner The distinction between the two is based only on
inconsistent with the Purpose of the the manner of their admission and does not
United Nations. involve any difference in the enjoyment of rights
or the discharge of obligations.
5. All Members shall give the United
Nations very assistance in any action it QUALIFICATIONS:
takes in accordance with the present
Charter, and shall refrain from giving 1. It must be a state
assistance to any state against which the 2. It must be peace-loving
United Nations is taking preventive or
enforcement action. 3. It must accept the obligations of the
Charter
6. The Organization shall ensure that states
which are not Members of the Unites
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4. It must be able to carry out these No provision on withdrawal from membership


obligations was includes in the Charter because of the fear
that it might encourage successive withdrawals
5. It must be willing to carry out these that would weaken the organization.
obligations
A member might withdraw from the U.N if:
ADMISSION
1. The organization was revealed to be
Decision of 2/3 of those present and unable to maintain peace or could do so
voting in the general assembly upon the only at the expense of law and justice
recommendation of at least nine (including all
the permanent) members of the Security Council 2. The member’s right and obligations as
such were changed by a charter
SUSPENSION amendment in which it had not
Effected by 2/3 of those present and concurred or which it finds itself unable
voting in the general assembly upon favourable to accept
recommendation of at least nine members of the 3. An amendment duly accepted by the
Security Council including the permanent necessary majority either in the general
members assembly or in a general conference is
The suspension may be lifted alone by not ratified.
the Security Council, also by a qualified majority
ORGANS OF THE UNITED STATES
vote.
PRINCIPAL ORGANS
Suspended members will prevent it from
participating in the meeting of the general 1. General assembly (G.A)
assembly or from being elected to or continuing
- Consists of all the members of the
to serve in the Security Council, the economic
and social council of the trusteeship council. organization, each of which is entitled to
National of the suspended members, may send not more than 5 representatives
however, continue serving in the Secretariat and and 5 alternates
the ICJ as they regarded as international officials - Each member of the G.A has one vote
or civil servants acting for the Organization itself.
Functions of the General Assembly
EXPLUSION
a. Deliberative- initiating studies
2/3 vote of those present and voting in and making recommendations
the general assembly, upon recommendation of toward the progressive
a qualified majority of the security Council, on development of international
grounds of persistently violating the principles law and its codification and
contained in the Charter. recommending measure for the
WITHDRAWAL peaceful adjustment of any
situation
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b. Supervisory- receiving and o 2 western European and other


considering annual and special states
reports from the other organs of
the U.N o 1 eastern European states

c. Financial- the consideration and


approval of the budget of the - The non-permanent members are NOT
organization, the eligible for immediate re-election
apportionment of expenses
among its members and the - The permanent members were give
approval of financial preferred position because of the feeling
arrangements with specialized that they were the states that would be
agencies. called upon to provide the leadership
and physical force that might be needed
d. Elective- the election of non- to preserve the peace of the world
permanent members of the
Security Council - The geographical distribution of non-
permanent members was a recognition
e. Constituent- admission of the of the relative importance of the
members and the amendment affected in the maintenance of
of the Charter of the U.N international order.
2. Security council - Chairmanship- rotated every calendar
- Key organ of the U.N in the maintenance month on a basis of English alphabet
of the internal peace and security order of names
council - YALTA FORMULA- devised at the crimea
- 5 permanent members conference

o Each member shall have one


o China
vote, but the distinction is made
o France between the Big Five and the
non-permanent members in the
o United kingdom resolution of substantive
o Russia questions

o United states o PROCEDURAL MATTERS are to


be decided by the affirmative
- 10 elective members vote of any nine or more
members.
o 5 African and Asian states
o NON-PROCEDURAL MATTERS
o 2 latin American states
require the concurrence of also
at least nine members but
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included all the permanent - Purpose of the YALTA FORMULA is to


members, but including the ensure the unity (?) of the permanent
permanent members. members in the measures to be taken in
the pursuit of its primary function of
o No members, permanent or not
maintaining international peace and
is allowed to vote on question security.
concerning the pacific
settlement of a dispute to which
it is a party.
3. Economic and social council
- PROCEDURAL MATTERS include
- Elected by G.A for 3 year terms and may
questions relating to the organization
and meeting of the security council, the be re-elected immediately
establishment of subsidiary organs and - Each member has one vote and
the participation of states parties in decisions are reached by a majority of
disputes in the discussion of the organ. those present and voting
- NON-PROCEDURAL MATTERS are those - Organs should exert efforts toward:
that may require the security council
under its responsibility of maintenance o Higher standards of living, full
or resorting world peace to invoke employment, and conditions of
measures of enforcement economic and social progress
and development
- PERMENENT MEMBERS may cast a VETO
an thereby prevent agreement on a non- o Solutions of international
procedural question even if it is economic, social health and
supported by all the other members of related problems and
the Security Council international, cultural and
educational cooperation; and
- PERMENENT MEMBERS may also
exercise the so called DOUBLE VETO, by o Universal respect for and
means of which it can disapprove any observance of, human rights
proposal to consider a question merely and fundamental freedoms for
procedural and thereafter vote against all without distinction as to race,
the question itself on the merits sex language or religion.

- Abstention or absence of any permanent


member in connection with a voting on
4. Trusteeship council
a non-procedural question is not
connection with a voting , and the - Charged with the duty of assisting the
proposal is deemed adopted if approved Security Council and the general
by at least nine members of the Security assembly in the administration of the
Council including the rest of the international trusteeship system.
permanent members.
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- Composed of : - Trusteeship council is largely become


obsolete with the conversion of
o The members of the U.N practically all trust territories into full-
administering trust territories fledged miniature states.
o The permanent members of the
security council not
administering tryst territories 5. International court of justice

o As many other members elected - Judicial organ of the U.N which function
for 3 year term by general in accordance with the statute.
assembly as may be necessary
to ensure that the total number - Composed of 15 members who are
of members of the trusteeship elected by absolute majority in the G.A
council is equally divided and the security council
between those members of the - The judges must:
United Nations which
administer trust territories and o be of high moral character
those which do not.
o possess the qualifications
- Each member has one vote and required in their respective
decisions are reached by a majority of countries for appointment to
those present and voting their competence in
international law
- Under its authority, it may:
- No two of them may be nationals of the
o Considered reports submitted same state and in the event that more
by the administering authorities than one national of the same state
o Accept petitions and examine obtain the required majorities, only the
them in consultation with the eldest shall be considered elected
administering authorities - Members have a term of 9 years and
o Provide for periodic visits to may be re-elected.
trust territories at times agrees - No judge can be removed unless, in the
upon with the administering unanimous opinion of the other
authorities members, he has ceased to fulfil the
o Take such other actions in required conditions.
conformity with the terms of the - Court may elect its president and vice
questionnaire on the political, pres. Who shall serve for 3 years and
economic, social and may be re-elected
educational advancement of the
inhabitant of the trust territories
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6. Secretariat o He prepares the budget of the


U.N for submission to the G.A,
- Chief administrative organ of the U.N provides technical facilities to be
- Headed by SECRETARY GENERAL different organs of the
organization and in general
o Chose by the G.A upon coordinates its vast
recommendation of the security administrative machinery
council
- Secretary general and the members of
o Fixed 5 years term by resolution his staff are internal officers solely
of the G.A and may be re- responsible to the Organization and are
elected prohibited from seeking or receiving
instruction from any government or any
o Highest representative of the
authority external to the U.N
U.N and is authorized to act in
itself

o When acting in his capacity, he is SECONDARY ORGANS- those which have been
entitles to full diplomatic created by or in accordance with the charter
immunities and privileges which such as the military staff committee, the
only the security council may international law commission and the
waive commission on human rights.

o The immunities and privileges of CHAPTER 5


other key official of the united
nation may be waived by the THE CONCEPT OF THE STATE
secretary general CREATION OF STATES
o His duty is to bring to the - By revolution
attention of the security council
may matter which in his opinion - By unification
may threaten international
- By secession
peace and security

o Acts a s secretary in all the - By assertion of independence


meetings of the G. A, the - By agreement and attainment of
security council, the economic civilization
and social council and the
trusteeship council and EXTINCTION OF STATES
performs such other functions
- By extinction or emigration en masse of
as may be assigned to him by
its population
these organs.
- By loss of territory
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- By overthrow of government resulting CONSEQUENCES OF STATE SUCCESSION


in anarchy
- Allegiance of the inhabitants of the
PRINCIPLES OF STATE CONTINUITY predecessor state in the territory
affected is transferred to the successor
- The state continues as juristic being state. They are also naturalized en
notwithstanding changes in its
masse
circumstances, provided only that they
do not result in loss of any of its essential - Political law of the former are
elements. automatically abrogated and may be
restored only by a positive act on the
- This principle applied in the sapphire
part of the new sovereign. But non-
case where, after Emperor Louis political laws, such as those dealing with
napoleon filed a damage suit on behalf familiar relations, are deemed
of France in an American court, he was continued unless they are changed by
deposed. Nonetheless, the action was
the new sovereign or are contrary to the
not abated and could continue upon institution of the successor state.
recognition of the duly authorized
representative of the new government - Treaties of a political and even
of France. commercial nature, as well as treaties of
extradition, are also discontinued,
SUCCESSION OF STATES except those dealing with local rights
- Takes place when one state assumes the and duties, such as those establishing
rights and some of the obligations of easement and servitudes.
another because of certain changes in
- All the rights of the predecessor state
the condition of the latter. are inherited by the successor state but
- May be either: this is not so where liabilities are
concerned.
o Universal succession -when a
state is annexed to another
state or is totally dismembered
SUCCESSION OF GOVERNMENT
or merges with another state to
form a new state - Where the government replaces
another either peacefully or by violent
o Partial succession- take place methods. In both instances, the integrity
when a portion of the territory
of the state is not affected; the state
of the states or is ceded to continues as the same international
another or when an person except only that its lawful
independent state becomes a representative is changed.
protectorate or a suzerainty or
when a dependent state - The rights of the predecessor
acquires full sovereignty. government are concerned; they are
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inherited in too by the successor - Political and discretionary


government.
2. Constitutive (minority view)
- Where the new government was
organized by virtue of a constitutional - It is last indispensable element that
reform duly ratified in plebiscite, the converts or constitutes the entity being
obligations of the replaced government recognized into an international person.
are completely by the former. - Mandatory and legal
- Where the new government was OBJECTS OF RECOGNITION
established through violence as by a
revolution, it may lawfully reject the 1. Recognition of a state- held irrevocable
purely personal or political obligations of and imports the recognition of the
the predecessor government but not government
contracted by it in the ordinary course of
2. Recognition of a government- may be
official business.
withdrawn and does not necessary
signify the existence of a state as the
government may be that of a mere
CHAPTER 6 colony.
RECOGNITION 3. Recognition of belligerency- does not
produce the same effect as the
recognition of states and government
BASIC RULES IN RECOGNITION OS STATES because the rebels are accorded
international personality only in
- It is political act and mainly a matter of connection with the hostilities they are
policy on the part of each state. waging.
- it is discretionary on the part of the
KIND OF RECOGNITION
recognizing authority.
1. Express- may be verbal or in writing. It
- it is exercised by the political (executive) may be extended through a formal
department of the state. proclamation or announcement, a
- The legality and wisdom of recognition is stipulation in a treaty, a letter or
not subject to judicial review. telegram, or on the occasion of an
official call or conference.
THEORIES ON RECOGNITION
2. Implied- when the recognizing state
1. Declaratory (majority view) enters into officials intercourse with the
new member by exchanging diplomatic
- merely affirms the pre-existing fact that
representatives with it.
the entity being recognized already
possess the status of an international
persons.
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The act constituting recognition shall give a clear - recognition states is irrevocable
indication of an intention:
RECOGNITION OF GOVERNMENT
1. To treat with the new state as such
- may be withdrawn and does not
2. To accept the new government as having necessary signify the existence of a state
authority to represent the state it as the government may be that of a
purports to govern and to maintain mere colony.
diplomatic relations with it
REQUISITES:
3. To recognize in the case of insurgent
that they are entitled to exercise 1. government is stable and effective
belligerent rights (objective test)

RECOGNITION OF STATES 2. no substantial resistance to its authority

- held irrevocable and imports the 3. the government must show willingness
recognition of the government and ability to discharge its international
obligations (subjective test)
EFFECTS OF THE RECOGNITION OF THE
4. government must enjoy popular
STATE AND GOVERNMENT
consent or approval of the people.
1. full diplomatic relations are established
except where the government

2. the recognized state or government KINDS OF THE DE FACTO GOVERNMENT


acquire the right to sue in courts of 1. That which is established by the
recognizing state inhabitants who rise in revolt against
3. the recognized state or government has and depose the legitimate regime.
a right to possession of properties of 2. That which is established in the course of
predecessor in the territory of the war by the invading forces of one
recognizing state belligerent in the territory of the other
4. all acts of the recognized state or belligerent, the government of which is
government are validated retroactively, also displaced.
preventing the recognizing state from 3. That which is established by the
passing upon their legality in its own inhabitants of a state who secede
courts therefrom without overthrowing its
RECOGNITION OF A STATE V. RECOGNITION government.
OF GOVERNMENT LANDMARK CASE DOCTRINE
- recognition of the state carries with it 1. WILSON/ TOBAR DOCTRINE
recognition of the government
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- This precludes recognition of the


government established by revolution,
civil war, coup d’etat or other form of 5. STIMSON DOCTRINE
internal violence until the freely elected - This precludes recognition of any
representatives of the people have government established as a result of
recognized a constitutional government external aggression

2. KELSEN DOCTRINE 6. ESTRADA DOCTRINE


- A states violates international law and - This refers to dealing or not dealing with
thus infringes upon the rights of other the government established through a
states if it recognizes as a state a political upheaval is not a judgement on
community which does not fulfil the the legitimacy of the said government.
requirements of international law

RECOGNITION DE JURE RECOGNITION DE


3. BETANCOURT DOCTRINE
FACTO
- This came as a reflection of Venezuelan Relatively permanent Provisional
president Romulo Betancourt’s
antipathy for non-democratic rule,
Vests title in the Does NOT vests title in
which denied diplomatic recognition to government to its the government to its
any regime, right or left, which came to properties abroad properties abroad
power by military force.
Brings about full Limited to certain
diplomatic relations juridical relations
4. LAUTERPACHT DOCTRINE

- It is the recognition of an entity which is


not legally a state is wrong because it EFFECTS OF THE RECOGNITION OF THE
constitutes as abuse of the power of STATE AND GOVERNMENT
recognition. It acknowledges a
community which is not in law, 1. full diplomatic relations are established
independent and which does not except where the government
therefore fulfil the essential conditions
2. the recognized state or government
of statehood as an independent state. It
acquire the right to sue in courts of
is, accordingly, a recognition which an
recognizing state
international tribunal declare not only to
constitute a wrong but probably also to 3. the recognized state or government has
be itself invalid. a right to possession of properties of
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predecessor in the territory of the 3. Third states recognizing belligerency


recognizing state should maintain neutrality;

4. all acts of the recognized state or 4. Recognition is only provisional and only
government are validated retroactively, for purposes of hostilities.
preventing the recognizing state from
passing upon their legality in its own CHAPTER 7
courts THE RIGHT OF EXISTENCE AND SELF-DEFENSE
RCOGNITION OF BELLIGERENCY ➢ Once a state comes into being. It is
- Does not produce the same effect as the invested with certain rights described as
recognition of states and government fundamental.
because the rebels are accorded ➢ Most important of these rights:
international personality only in
connection with the hostilities they are o Right of existence
waging.
o Self-defence
CONDITION FOR RECOGNITION OF
*It is important because all its other rights are
BELLIGERENCY
supposed to flow or be derived from it.
1. there must be an organized civil
➢ The presence of an “Armed Attack” to
government directing the rebel forces
justify the exercise of the right of self-
2. the rebels must occupy a substantial defence may be taken by a state only in
portion of the territory of the state the face of a necessity of self-defense
that is instant, overwhelming and
3. the conflict between the legitimate leaving no choice of means and no
government and the rebels must be moment for deliberation
serious, making the outcome uncertain.
➢ Right may be resorted only upon clean
4. The rebels must be willing and able to showing of a grave and actual danger to
observe the laws of war. the security of the state
EFFECTS OF RECOGNITION OF BELLIGERENCY ➢ “The best defense is offense” – Grotius
1. Responsibility for acts of rebels resulting ➢ One might well argue now that the very
to injury to nationals of recognizing state state of armed preparedness of a
shall be shifted to rebel government nuclear power is per se a potent, if
2. The legitimate government recognizing latent.
the rebels as belligerents shall observe THE CUBAN MISSILE CRISIS
laws or customs of war in conducting
hostilities ➢ “The peace of the world and the security
of the US (had been) endangered by
reason of the establishment by the Sino-
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Soviet powers of an OFFENSIVE 1. Invasion/attack by armed forces of a


MILITARY CAPABILITY in Cuba, including state of the territory of another state
bases for ballistic missiles with a
potential range covering most of North 2. Bombardment of armed forces
and South America. 3. The blockade of parts/coasts of a state
REGIONAL ARRANGEMENTS by the armed forces of another state

➢ Nothing in the present charter precludes 4. Attack of sea, air forces, land etc.
the existence of regional arrangements. 5. Use of armed forces within the territory
REGIONAL ARRANGEMENTS – Agencies for of another State with the agreement of
dealing with such matters relating to the the receiving State, in contravention of
maintenance of international peace and security the conditions provided for in the
agreement or any extension of their
as are appropriate for regional action.
presence in such territory beyond the
➢ Example of Regional Agency: termination of the agreement
Organization of American States –
Whose organ of consultation authorized 6. The action of a State in allowing its
territory, which it has placed at the
or ratified the action taken by the US.
disposal of another State, to be used by
THE BALANCE OF POWER that other State for perpetrating an act
of aggression against a 3rd state
➢ One reason for the organization of
regional arrangements is to provide for 7. The sending by or on behalf of a State of
the balance of power armed force against another State of
such gravity as to amount to the acts
➢ An arrangement of affair so that no state listed above, or its substantial
shall be in a position to have absolute involvement therein.
mastery and dominion over others. –
Vattel

AGGRESSION – Use of armed force by a state CHAPTER 8


against:
THE RIGHT OF INDEPENDENCE SOVEREIGNTY
✓ Sovereignty

✓ Territorial Integrity
Supreme, uncontrollable power inherent in a
✓ Political independence of other state state, the supreme power of the state to
command and enforce obedience

➢ Enables the state to make its own


➢ First use of armed forces shall constitute decision vis-à-vis other states and vests
prima facie evidence of aggression it with competence to enter into relation
QUALIFY AS AN ACT OF AGGRESSION and agreements with them.
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2 ASPECTS ➢ Recent events have called for a re-


examination of the law on intervention,
1. INTERNAL SOVEREIGNTY – Power of the especially where intervention is based
state to direct its domestic affairs on humanitarian grounds
2. EXTERNAL SOVEREIGNTY – The freedom ➢ Revolted by the inhumane plight of the
of the state to control its own foreign innocent victims, the UN sent a
affairs. contingent of military troops from
o External sovereignty is more several countries, primarily the US.
often referred to as THE DRAGO DOCTRINE
independence.
➢ The contracting powers agree not to
have recourse to armed force for the
NATURE OF INDEPENDENCE recovery of contract debts claimed from
the government of one country by the
➢ Freedom from control by any other state government of another country as being
or group of states and not freedom from due to its nationals.
the restrictions that are binding on all
states forming the family of nations.

➢ Must submit to limitations, CHAPTER 9: THE RIGHT OF EQUALITY


independence of a state is of necessity ➢ Art. 2 of Charter of the UN: “The
restricted. organization is based on the principle of
INTERVENTION the sovereign equality of all its
members.
➢ State must abstain from intervention. It
expects its independence to be ➢ States are juridically equal, enjoy the
respected by other states, so too must it same rights, and have equal capacity in
be prepared to respect their own their exercise. The rights of each one do
independence. not depend upon the power which it
possesses to assure its exercise, but
➢ Rights of independence carries with it upon the simple fact of its existence as a
duty of non-intervention. person under international law.

2 INSTANCES WHEN THE USE OF FORCE IS ESSENCE OF EQUALITY


ALLOWED UNDER THE CHARTER OF THE UN:
➢ Does not signify parity in physical power,
1. When such action is agreed upon in a political influence or economic status or
treaty prestige

2. When requested from sister states or ➢ Equality does not even require equality
from the UN in the number of rights
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➢ All the rights of a State, regardless of not depend upon the power which it
their number, must be observed and possesses to assure its exercise, but
respected upon the simple fact of its existence as a
person under international law.
➢ All States, big or small have an equal
right to the enjoyment of all their ESSENCE OF EQUALITY
respective attributes as members of the
family of nations ➢ Does not signify parity in physical power,
political influence or economics status
➢ All members of UN have each one vote or prestige
in the General Assembly, all votes having
➢ Equality does not even require equality
equal weight and are generally eligible
for positions in the various organs of the in the number of rights.
UN ➢ PRINCIPLE: All the rights of a state,
➢ “Par in parem non habet imperium” – regardless of their number, must be
Even the strongest state cannot assume observed and respected
jurisdiction over another state, no ➢ All states, big or small have an equal
matter how weak etc.. right to the enjoyment of all their
LEGAL EQUALITY VS. FACTUAL INEQUALITY respective attributes as members of the
family of nations.
➢ Not all states have equal eligibility with
regard to elective membership of the ➢ All members of UN have each one vote
in the General Assembly, all votes having
Security Council
equal weight, and are generally eligible
➢ 5 of them must be elected from the for positions in the various organs of the
African and Asian states and only 1 can UN
come from the Eastern European State.
➢ “Par in paren non habet imperium” –
➢ In General Assembly, all members have even the strongest state cannot assume
on vote regardless of the number of jurisdiction over another state, no
people they separately represent. matter how wake etc..

CHAPTER 9 LEGAL EQUALITY VS. FACTUAL INEQUALITY

THE RIGHT OF EQUALITY ➢ Not all states have equal eligibility


with regard to elective membership
➢ Art. 2 of Charter of the UN “The
of the Security Council
organization is based on the principle of
the sovereign equality of all its members ➢ 5 of them must be elected from the
African and Asian states and only 1
➢ States are juridically equal, enjoy the can come from the Eastern
same rights, and have equal capacity in European State.
their exercise. The rights of each one do
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✓ Cession

CHAPTER 10 ✓ Revolution

TERRITORY ✓ Subjugation

TERRITORY – Fixed portion of the surface of the ✓ Prescription


earth inhabited by the people of the state.
✓ Erosion
✓ Must be permanent and indicated with
precision ✓ Natural causes

✓ Big enough to provide for the needs of DISCOVERY AND OCCUPATION


the population but not be so extensive ➢ Original mode of the acquisition by
as to be difficult to administer/defend which territory not belonging to any
from external aggression. state is placed under the sovereignty of
the discovering state.

➢ The Philippines is committed to the ➢ Territory need not be to be uninhabited


renunciation of the war for territorial provided it can be established that the
aggrandizement but like other states, is natives are not sufficient civilized and
not precluded from acquiring additional can be considered as possessing not
territories through any of the methods rights of sovereignty but only rights of
permitted under the law of nations. habitation

➢ Open seas and outer space are not


ACQUISITION AND LOSS OF TERRITORY
susceptible to discovery and occupation.
Territory may be acquired by:
2 REQUISITES OF A VALID DISCOVERY AND
✓ Discovery OCCUPATION

✓ Occupation 1. Possession

✓ Subjugation 2. Administration

✓ Prescription

✓ Cession ➢ Possession must be claimed on behalf of


the state. Be effected through a formal
✓ Accretion proclamation and the symbolic act of
Territory may be lost by: raising the national flag in the territory.

✓ Abandonment ➢ Mere possession will not suffice

✓ Dereliction INCHOATE TITLE OF DISCOVERY


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➢ Performs the function of barring other physically withdraws from it with the intention
states from entering the territory until of abandoning it altogether.
the lapse of a period within which the
discovering state may establish as ➢ conditions must concur:
settlement thereon and commence to 1. Acts of withdrawal
administer it.
2. Intention to abandon
ISLAND OF PALMAS CASE

➢ Discovery alone, without any


subsequent act, cannot at the present PRESCRIPTION – Prescription in international law
time suffice to prove sovereignty of requires long continued and adverse possession
Island of Palmas. to vest acquisitive title in the claimant.

➢ An inchoate title could not prevail over CESSION – Method by which territory is
the continuous and peaceful display of transferred from one state to another by
authority by another state for such agreement between them. Acquisition of
display may prevail even over a prior, territory by cession is usually effected by such
definitive title put forward by another familiar transactions as sale, donation, barter or
state. exchange, and even by testamentary disposition.

CLIPPERTONE ISLAND CASE ➢ Examples are the purchase by the US of


Alaska from Russia in 1867, the gift by
➢ Title was deemed acquired by France Austria of Lombardy to France in 1859
over an island it had formally claimed
but had never administered. He SUBJUGATION – Territory is deemed acquired by
proclaimed and declared that the subjugation when, having been previously
sovereignty of the said island beginning conquered or occupied in the course of war by
from that date belonged in perpetuity to the enemy, it is formally annexed to it at the end
his majesty. of that war.

➢ If a territory, by virtue of the fact that it ➢ Conquest alone confers only an


was completely uninhabited, from the inchoate right on the occupying state; it
first moment when the occupying state is the formal act of annexation that
makes its appearance there, at the completes the acquisition.
absolute and undisputed possession of
ACCRETION – Mode of acquiring territory based
that State, from that moment the taking
on the principle of accession cedat principali. It is
of possession is considered
accomplished through both natural or artificial
accomplished and the occupation is
processes, as by the gradual and imperceptible
formally completed.
deposit of soil on the coasts of the country
DERELICTION – Territory is lost by dereliction through the action of the water or, more
when the state exercising sovereignty over it effectively, by reclamation projects like those
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undertaken in Manila Bat and the polders of constitute more than a mere curvature of the
Holland. coast.

COMPONENT OF TERRITORY THE TERRITORIAL SEA – Belt of waters adjacent


to the coasts of the state, excluding the internal
1. Terrestrial domain waters in bays and gulfs, over which the state
2. Maritime domain claims sovereignty and jurisdiction

3. Fluvial domain THE UN Conference on the Law of the Sea

4. Aerial domain ➢ 3 international conferences have been


called to formulate a new of the sea.
THE TERRESTRIAL DOMAIN
➢ The 1st conference was held in 1958 at
➢ Land mass Geneva, Switzerland, and resulted in
the adoption of the Convention on the
THE MARITIME AND FLUVIAL DOMAIN
Territorial Sea and the Contiguous Zone,
➢ Bodies of water within the land mass the Convention on the High Seas, and
and the waters adjacent to the coasts of the Convention on the Fishing and the
the state up to a specified limit. Living Resources of the High Seas, and
the Convention on the Continental
RIVERS MAY BE CLASSIFIED INTO: Shelf.

1. National Rivers – situated completely in ➢ The new Convention provides among


the territory of one state others for a uniform breadth of 12 miles
for the territorial sea, a contiguous zone
2. Multi-national Rivers – Flow through the
of 12 miles from the outer limits of the
territories of several states
territorial sea, and an economic zone or
3. International Rivers – is navigable from patrimonial sea extending 200 miles
the open sea and is open to the use of from the low-water mark of the coastal
vessels from all states state.

4. Boundary Rivers – divided the territories THE PHILIPPINE TERRITORIAL SEA


of the riparian states
➢ The claim of the Philippines to its
THALWEG DOCTRINE – In the absence of a territorial sea was based on historic right
specific agreement between such states, the or title or as it often called, the TREATY
boundary line is laid on the river. That is, on LIMITS THEORY.
the center, not of the river itself, but of its
➢ The new Convention on the Law of the
main channel.
Sea now limits our territorial sea 12
BAYS – Well-marked indentation whose miles from the low water mark of our
penetration is in such proportion to the width of coasts, as in the case of other states.
its mouth as t contain land-locked waters and
METHODS OF DEFINING THE TERRITORIAL SEA
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1. NORMAL BASELINE METHOD – The 2. Terrestrial domain


territorial sea is simply drawn from the
low-water mark of the coast, to the 3. Maritime and fluvial domain
breadth claimed, following its sinuosities 4. Continental shelf
and curvatures but excluding the
internal waters in bays and gulfs. 5. Open seas

2. STRAIGHT BASELINE METHOD – Straight 6. Aerial domain


lines are made to connect appropriate
7. Outer space
points on the coast without departing
radically from its general direction. 8. Other territories
FISHERIES CASE PERSONAL JURISDICTION – Power exercised by a
state over its nationals. Based on theory that a
➢ United Kingdom questioned the use by
national is entitled to the protection of his state
Norway of the straight baseline method
wherever he may be and is (Doctrine of indelible
defining its territorial waters.
allegiance)
THE AERIAL DOMAIN
JOYCE VS. DIRECTOR OF PUBLIC PROSECTION
➢ The airspace above the terrestrial
➢ Defendant Lord HawHaw, challenged his
domain and the maritime and fluvial
conviction in Great Britain for high
domain of the state, to an unlimited
treason, contending that he was not a
altitude but not including outer space.
British subject. It appeared that he had
lived in the country for 18 years and
misrepresented himself as its national
CHAPTER 11 for the purpose of obtaining a British
JURISDICTION passport that enabled him to go to
Germany where he was broadcast anti-
JURISDICTION – Authority exercised by a state Allied propaganda.
over persons and things within or sometimes
outside its territory, subject to certain o Although not a British subject,
exceptions. he has by his own act
maintained the bond which
JURISDICTION IS CLASSIFIED AS: while he was within the realm
bound him to his Sovereign
1. Personal
TERRITORIAL JURISDICTION
2. Territorial
Gen. Rule: state has jurisdiction over all persons
JURISDICTION MAY BE EXERCISED BY A STATE and property within its territory
OVER:
STATE CANNOT EXERCISE JURISDICTION EVEN
1. Its nationals WITHIN ITS OWN TERRITORY OVER:
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1. Foreign states, heads of states, 6. Such other persons or property,


diplomatic representatives, and consuls including organizations like the UN, by
to a certain degree. agreement, waive jurisdiction.

2. Foreign state property: embassies, LAND JURSIDICTION


consulates, and public vessels engaged
➢ Everything found within the terrestrial
in non-commercial activities
domain of the state is under its
3. Acts of state jurisdiction.

o UNDERHILL VS. HERNANDEZ – ➢ Nationals and aliens, including non-


“Every sovereign state is bound residents, are bound by its laws.
to respect the independence of
every other sovereign state, and ➢ The local state has exclusive title to all
the courts of one country will property within its territory.
not sit in judgement on the acts MARITIME AND FLUVIAL JURISDICTION
of the government of another,
done within its own territory.” ➢ Internal waters of a state are assimilated
to the land mass and subjected to the
4. Foreign merchant vessels exercising the same degree of jurisdiction exercised
rights of innocent passage or arrival over the terrestrial domain.
under stress.
➢ Civil, criminal and administrative
o INNOCENT PASSAGE – jurisdiction is exercised by the flag state
Navigation through the over its public vessels wherever they
territorial sea of a state for the may be, provided they are not engaged
purpose of traversing that sea in commerce.
w/o entering internal waters
etc. as long as it is not prejudicial THE SCHOONER EXCHANGE VS. MCFADDON
to the peace, good order or
➢ “National ships of war entering the port
security of the coastal sea.
of a friendly power open for their
o ARRIVAL UNDER STRESS – reception are to be considered as
Involuntary entrance may be exempted by the consent of that power
due to lack of provisions, from its jurisdiction”
unseaworthiness of the vessel,
ENGLISH RULE – The coastal state shall have
inclement weather, or other
jurisdiction over all offenses committed on
cases of force majeure, like
board such vessels, except only where they do
pursuit by pirates.
not compromise the peace of the port.
5. Foreign armies passing through or
FRENCH RULE – Flag state shall have jurisdiction
stationed in its territories with its
over all offenses committed on board such
permission.
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vessels, except only where the compromise the ➢ In a zone of the high seas contiguous to
peace of the port. its territorial sea, the coastal state may
exercise the control to: a) prevent
ANTONI CASE infringement of its customs, fiscal,
➢ “Murder of a Frenchman by another immigration or sanitary regulations
Frenchman on board a French merchant within its territory or territorial sea. B)
vessel in a Mexican port did not disturb Punish infringement of the above
the peace of the port.” regulations within its territory or
territorial sea.
WINDENHUS CASE
➢ Contiguous zone ,may not, however,
➢ “The murder of a Belgian by another extend more than 12 miles from the
Belgian on board a Belgian merchant coast of the state
steamer in the port of New Jersey was of
such a nature as “ to disturb tranquillity ➢ 1982 CONVENTION ON THE LAW OD THE
and public order on shore or in the SEA –Contiguous zone also extends 12
port”” miles, but from the outer limits of the
territorial sea.

THE CONTINENTAL SHELF


➢ Our own SC has held that the English rule
is applicable in this country. a) To the seabed and subsoil of similar
areas adjacent to the coasts if islands

➢ The coastal state has the sovereign right


➢ It is the right of the coastal state to to explore the continental shelf and to
enforce all its laws to the full extent in its exploit its natural resources.
territorial waters.
➢ It may erect on it such installations and
equipment as may be necessary.

U.S.S. PUEBLO INCIDENT – “An American vessel THE PATRIMONIAL SEA


was seized and its crew interned by North Korea
for alleged infringement of its territorial waters.” ➢ The exclusive economic zone or the
patrimonial sea extends 200 nautical
ARCHIPELAGIC SEALANES – Waters over which miles from the coast or the baselines. All
foreign ships will have the right of passage as if living and non-living resources found
they were open seas. A foreign vessel need not therein belong exclusively to the coastal
go around our internal waters but may use these state.
archipelagic sea lanes in negotiating the distance
from one point of the open sea to another. OPEN SEAS

THE CONTIGUOUS ZONE ➢ Available to the use of all states for


purposes of navigation, flying over them,
laying submarine cables or fishing. In
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times of war, hostilities may be waged 1. The freedom to fly across foreign
on the open seas. territory without landing

THE LOTUS CASE 2. The freedom to land for non-traffic


purposes
A collision occurred on the high seas between a French
vessel – Lotus – and a Turkish vessel – Boz-Kourt. The Boz-
3. The freedom to put down traffic
Kourt sank and killed eight Turkish nationals on board the
Turkish vessel. The 10 survivors of the Boz-Kourt (including
originating in the state of the aircraft
its captain) were taken to Turkey on board the Lotus. In
Turkey, the officer on watch of the Lotus (Demons), and the
4. The freedom to embark traffic destined
captain of the Turkish ship were charged with for the state of the aircraft
manslaughter. Demons, a French national, was
sentenced to 80 days of imprisonment and a fine. The 5. The freedom to embark traffic destined
French government protested, demanding the release of for or to put down traffic originating in a
Demons or the transfer of his case to the French Courts. 3rd state.
Turkey and France agreed to refer this dispute on the
jurisdiction to the Permanent Court of International Justice CONVENTION ON OFFENSES AND CERTAIN
(PCIJ).
OTHER ACTS COMMITTED ON BOARD AIRCRAFT
HELD: The first principle of the Lotus case said that – It is the state of registration of the aircraft that
jurisdiction is territorial: A State cannot exercise its has jurisdiction over offenses and acts
jurisdiction outside its territory unless it an international
committed on board while it is in flight or over
treaty or customary law permits it to do so. This is what we
called the first Lotus Principle.
the high seas or any other area outside the
territory of any state

OUTER SPACE
A STATE MAY EXERCISE JURISDICTION ON THE
OPEN SEAS IN THE FOLLOWING INSTANCES: ➢ Outer space, or the region beyond the
earth’s atmosphere, is not subject to the
1. Over its vessels jurisdiction of any state.

2. Over pirates ➢ Outer space shall be free for exploration


and use by all states without
3. In the exercise of the right of visit and
discrimination of any kind.
search
➢ Astronauts shall be regarded as envoys
4. Under the doctrine of hot suits
of mankind.
AERIAL JURISDICTION
CHAPTER 12
➢ The consensus appears to be that the
THE RIGHT OF LEGATION
local state has jurisdiction over the
airspace above it to an unlimited height, THE EXERCISE OF THE RIGHT OF LEGATION
or at the most up to where outer space
begins. ➢ One of the most effective ways of
facilitating and promoting intercourse
5 AIR FREEDOMS among states.
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➢ Done through active right of receiving ➢ The foreign secretary is also the head of
them, states are able to deal more the foreign office and has direction of all
directly and closely with each other in ambassadors and other diplomatic
the improvement of the mutual representatives of his government.
interests.
DIPLOMATIC ENVOYS
AGENTS OF DIPLOMATIC INTERCOURSE
➢ To whom the regular or day-to-day
➢ Diplomatic relations are normally conduct of international affairs is
conducted through the head of state, entrusted.
the foreign secretary or minister and the
➢ Who are accredited by the sending state
members of the diplomatic service.
as its permanent envoys to represent it
➢ Head of state may also appoint special in the states with which it is maintaining
diplomatic agents charged with specific diplomatic relations
ceremonial or political duties.
THE HEADS OF THESE DIPLOMATIC MISSIONS
ENVOY CEREMONIAL – Sent to attend state ARE CLASSIFIED AS FOLLOWS BY THE
functions like a coronation or a jubilee CONVENTION ON DIPLOMATIC RELATIONS,
WHICH WAS SIGNED AT VIENNA IN 1961:
ENVOY POLITICAL – Commissioned to negotiate
with a particular state or to participate in an 1. Ambassadors
international conference or congress.
2. Envoys
HEAD OF STATE
3. Charges d’affaires
➢ Represents the sovereignty of his state
DIPLOMATIC CORPS – Body consisting of the
➢ He is entitled to certain immunities and different diplomatic representatives who have
honours befitting his status been accredited to the same local receiving
state. The diplomatic corps does not possess any
MIGHELL VS. SULTAN OF JOHORE – “Suit was legal powers or attributes.
brought for breach of a promise to marry
allegedly made by the defendant we had Functions of Diplomatic Missions:
represented himself as a private individual. The
action was dismissed when he revealed his real 1. Representing sending state in receiving state
identity as head of an independent state.” 2. Protecting in receiving state interests of
sending state and its nationals
THE FOREIGN SECRETARY
3. Negotiating with government of receiving
➢ Immediate representative of the head of state
state and directly under his control.
4. Promoting friendly relations between sending
➢ He can make binding declarations on and receiving states and developing their
behalf of his state on any matter falling economic, cultural and scientific relations
within his authority
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5. Ascertaining by all lawful means conditions has committed an act of violence and it
and developments in receiving state and is necessary to place him in preventive
reporting thereon to government of sending restraint.
state

6. In some cases, representing friendly


governments at their request IMMUNITY FROM JURISDICTION

➢ Diplomatic agent shall be immune from


the civil, criminal and administrative
CONDUCT OF DIPLOMATIC MISSION
jurisdiction of the receiving state except
➢ The diplomatic agent must exercise the in a few specified cases.
utmost discretion and tact, taking care
always to preserve the goodwill of the HE SHALL ALSO ENJOY IMMUNITY FROM ITS
sending state and to avoid interference CIVIL AND ADMINISTRATIVE JURISDICTION,
with its internal affairs. EXCEPT IN THE CASE OF:
➢ His mission is also under no a. A real action relating to private
circumstance to be used for espionage,
immovable property situated in the
the dissemination of propaganda against
the receiving state, or subversion of its territory of the receiving state, unless he
government. holds it on behalf of the sending state for
the purposes of the mission.
DIPLOMATIC IMMUNITIES AND PRIVILEGES
b. An action relating to succession in which
➢ His privileges and immunities are
the diplomatic agent is involved as
necessary to give the envoy the fullest
freedom or latitude in the exercise of his executor, administrator, heir or legatee
official functions. as a private person and not on behalf of
the sending state.
PERSONAL INVIOLABILITY
c. An action relating to any professional or
➢ The envoy is regarded as sacrosanct and
commercial activity exercised by the
is entitled to the special protection of his
person, honor and liberty. diplomatic agent in the receiving state
outside his official functions.
➢ DIPLOMATIC CONVENTION: “The person
of a diplomatic agent shall be inviolable. ➢ Immunity from jurisdiction may be
He shall not be liable to any form of waived expressly by the sending state
arrest or detention. The receiving state
shall treat him with due respect and shall WHO VS. AQUINO
take all appropriate steps to prevent any
attack on his person, freedom or dignity” Diplomatic immunity is essentially a political
question and courts should refuse to look
➢ The envoy cannot complain if he is
beyond a determination by the executive branch
injured because he himself caused the
initial aggression. of the government, and where the plea of
diplomatic immunity is recognized and affirmed
➢ The local authorities may also, in by the executive branch of the government as in
exceptional cases, lay hands on him if he the case at bar, it is then the duty of the courts
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to accept the claim of immunity upon ➢ The Dutch envoy to Washington invoked
appropriate suggestion by the principal law this right 1856 when he rejected a
officer of the government, the Solicitor General request to testify in connection with a
in this case, or other officer acting under his homicide committed in his presence and
direction. for the prosecution of which his
testimony we necessary.
INVIOLABILITY OF DIPLOMATIC PREMISES
EXEMPTIONS FROM TAXATION
➢ The premises of the mission shall be
inviolable. The agents of the receiving ➢ Also from social security requirements
state may not enter them except with under certain conditions.
the consent of the head of mission.
➢ Personal baggage is also free from
INVIOLABILITY OF ARCHIVES inspection unless there are serious
ground
➢ The receiving state has no right to pry
into the official papers and records of a THE DIPLOMATIC SUITE OR RETINUE
foreign diplomatic mission.
➢ Immunities and privileges are available
➢ “the archives and documents of the not only to the head of mission and his
mission shall be inviolable at any time family but also to the other members of
and wherever they may be” the diplomatic retinue, albeit not in the
same degree.
INVIOLABILITY OF COMMUNICATION
DURATION
➢ “The receiving state shall permit and
protect free communication on the part ➢ Every person entitled to diplomatic
of the mission for all official purposes. In privileges and immunities shall enjoy
communicating with the government them from the moment he enters the
and other missions and consulates of the territory of the receiving state on
sending state, wherever situated, the proceeding to take up his post or, if
mission may employ all appropriate already there, from the moment his
means including diplomatic couriers and appointment is notified to the foreign
messages in code or cipher.” ministry.

EXEMPTION FROM TESTIMONIAL DUTIES ➢ When his functions have to come to an


end, his privileges and immunities shall
➢ “A diplomatic agent is not obliged to give normally cease from moment he leaves
evidence as a witness” the country or on expiry of a reasonable
➢ He is not prohibited by international law time in which to do so, but shall subsist
from doing so and may waive this until such time even in case of armed
privilege when authorized by his conflict.
government. ➢ In the exercise of his official functions,
immunity shall continue indefinitely as it
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is supposed to have attached to him although they are to a certain extent entitled to
personally but to the state he was special treatment under the law of nations
representing
Kinds and Grades
TERMINATION OF DIPLOMATIC MISSION *CONSULES MISSI – professional or career
consuls who are nationals of the appointing
➢ Usual methods of terminating official state and are required to devote their full time
relations: death, resignation, removal, to the discharge of their consular duties
abolition of the office, etc. these are
*CONSULES ELECTI – may or may not be
governed by municipal law.
nationals of the appointing state and perform
their consular functions only in addition to their
➢ The more important modes are RECALL
regular callings
and DISMISSAL
Appointment
RECALL – May demanded by the receiving state
Consuls derive their authority from two
when the foreign diplomat becomes persona principal sources:
non grata to it for any person. *LETTER PATENT / LETTRE DE
PROVISION – commission issued by the sending
DISMISSAL – The offending diplomat is simply state
asked to leave the country. *EXEQUATUR – authority given to them
by the receiving state to exercise their duties
➢ The outbreak of war between the therein
sending and receiving states terminates 8consuls are public officers not only of the
their diplomatic relations. sending state but of the receiving state as well
and are governed by the laws of both
➢ As for the change of the govt., *states may refuse to receive consuls and to
diplomatic relations are not disturbed if withhold the exequatur from them without
the change is peaceful but may be explanation
suspended where it is effected by means
Functions
of violence
*commerce and navigation
CHAPTER 13 *issuance of passports and visas
CONSULS *duties of protection of nationals

*PRINCIPAL DUTY OF CONSULS: promote the


*CONSULS – state agents residing abroad for
various purposes but mainly in the interest of commercial interests of their country in the
receiving state and to observe the commercial
COMMERCE and NAVIGATION
trends and developments therein for report to
*Consuls are not charged with the duty of their home government
representing their states in political matters nor
are they accredited to the state where they are *also perform duties relating to navigation –
supposed to discharge their functions visiting and inspecting vessels of their own states
which may be in the consular district; exercising
*consuls do not ordinarily enjoy all the a measure of supervision over such vessels;
traditional diplomatic immunities and privileges adjusting matters pertaining to their internal
order and discipline
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Immunities and Privileges Waiver may in general be made by the sending


*consuls have a right to official communication state.
and may correspond with their home
government or other official bodies by any Termination of Consular Mission
means including cipher or code without being *removal, resignation, death, expiration of term
subjected to censorship or unreasonable * the exequatur may also be withdrawn by the
restraint. However, this right may be restricted receiving state, either of the appointing or
whenever it is exercised to the prejudice of the receiving state may be extinguished or war may
receiving state break out between them.
* in the event of war, the consulate is closed and
*Consuls enjoy the inviolability of their archives, the archives are sealed and left in the custody of
which may not be examined or seized by the a caretaker usually a consul from a neutral state.
receiving state under any circumstance, nor may * the consul from the belligerent state is allowed
their production or testimony concerning them to depart for his own country as soon as possible
be compelled in official proceedings. But this and without unnecessary molestation
immunity does not extend to the consular
premises themselves, where the legal process CHAPTER 14
may be served and arrests made without TREATIES
violation of international law, except only in that
part where consular work is being performed TREATY – formal agreement, usually but not
necessarily in writing, which is entered into by
*consular offices may even be expropriated for states or entities possessing the treaty-making
purposes of national defense or public utility capacity for the purpose of regulating their
mutual relations under the law of nations.
*criminal offenses: consuls are exempt from *an executive agreement is NOT a treaty
local jurisdiction for crimes committed by them
in the discharge of their official functions. Other Functions of Treaties
offenses: fully subject to local law and may be 1. Treaties enable parties to settle finally
arrested, prosecuted and punished in proper actual and potential conflicts
proceedings 2. Treaties make possible for the parties to
*consuls are not prosecuted form minor modify the rules of international
offenses and, when arrested, are given adequate customary law by means of optional
opportunity to secure their release on bail at the principle or standards
earliest possible time 3. They may lead to a transformation of
* civil suits: instituted against consuls personal unorganized international society into
or private capacity but not in matters connected one which may be organized on any
with their official duties chosen level of social integration
*consuls are generally exempted from taxation, 4. They provide the humus for the growth
custom duties, service in the militia, and social of international customary law
security rules and are privileged to display their
national flag and insignia in the consulate Essential Requisites of a Valid Treaty
although these concessions are considered 1. Entered into by parties with the treaty-
“non-essential” to the proper discharge of their making capacity
official duties 2. Through their authorized
*these immunities and privileges are also representatives
available to the members of the consular post, 3. Without the attendance of duress,
their respective families, and the private staff. fraud, mistake, or other vice of consent
4. On any lawful subject-matter
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5. In accordance with their respective *Instances when 3rd states may be validly held to
constitutional processes the observance of or benefit from the provisions
of a treaty.
Treaty-making process * treaty may be merely a formal
NEGOTIATION, SIGNATURE, RATIFICATION, AND expression of customary international law which
EXCHANGE OF THE INSTRUMENTS OF is enforceable on all civilized states because of
RATIFICATION their membership in the family of nations
* for the maintenance of international
NEGOTIATION – one of the parties to submit a peace and security
draft of the proposed treaty which, together * parties to apparently unrelated
with the counter-proposals, becomes the basis treaties may also be linked by the most-favored-
of the subsequent negotiations. nation clause, under which a contracting state
*undertaken directly by the head of the entitled to most-favored-nation treatment from
state or assigns this task to his authorized the other may claim the benefits extended by
representatives the latter to another state in a separate
*if and when the negotiators finally decide on agreement
the terms of the treaty, the same is opened for
SIGNATURE. Observance of Treaties
*signature – means of authenticating *Fundamental rules of international law is
the instrument and for the purpose of PACTA SUNT SERVANDA, which requires the
symbolizing the good faith of the parties; but it performance in good faith of treaty obligations
does not indicate the final consent of the state *parties must comply with their commitments
*the document is ordinarily signed in under a treaty and cannot ignore or modify its
accordance with the alternat, that is, each of the provisions without the consent of the other
several negotiators is allowed to sign first on the signatories
copy which he will bring home to his own state * a treaty engagement is not a mere moral
obligation but creates a legally binding obligation
RATIFICATION – formal act by which a state * treaties really limit of restrict the absoluteness
confirms and accepts the provisions of a treaty of sovereignty. By their voluntary act, nations
concluded by its representatives. may surrender some aspects of their state
*Purpose; enable the contracting states powers in exchange for greater benefits granted
to examine the treaty more closely and to give by or derived from a convention or pact
them an opportunity to refuse to be bound by it * the sovereignty of a state therefore cannot in
should they find it inimical to their interests fact and in reality be considered absolute
*EXCHANGE OF THE INSTRUMENTS OF * restrictions:
RATIFICATION – signifies the effectivity of the 1. limitations imposed by the very
treaty unless a different date has been agreed nature of membership in the family of nations
upon by the parties 2. limitations imposed by treaty
stipulations
Binding Effect of Treaties * DOCTRINE OF REBUS SIC STANTIBUS –
*A treaty is binding only on the contracting constitutes an attempt to formulate a legal
parties, including not only the original principle which would justify non performance
signatories but also other states which, although of a treaty obligation if the conditions with
they may not have participated in the relation to which the parties contracted have
negotiation of the agreement, have been changed so materially and so unexpectedly as to
allowed by the terms to sign it later by a process create a situation in which the exaction of
known as ACCESSION performance would be unreasonable.
*Limitations:
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1. applies only to treaties of indefinite 10. Voidance of the treaty because of


duration defects in its conclusion
2. the vital change must have been
unforeseen or unforeseeable and should not CHAPTER 15
have been caused by the party invoking the NATIONALITY AND STATELESSNESS
doctrine
3. the doctrine must be invoked within a * individual is merely an object and not a subject
reasonable time of international law and is thus not directly
4. it cannot operate retroactively upon governed by its rules
the provisions of the treaty already executed * NATIONALITY – tie that binds an individual to
prior to the change of circumstances his state, from which he can claim protection and
whose laws he is obliged to obey. Nationality is
Treaty Interpretation membership in a political community with all its
*The basic rule in the interpretation of treaties is concomitant rights and obligations
to give effect to the intention of the parties. This * CITIZENSHIP – applies only to certain members
should be discoverable in the terms of the treaty of the state accorded more privileges than the
itself rest of the people who also owe it allegiance
*the usual canons of statutory construction are * SUBJECT – particular reference to the nationals
employed in the interpretation of treaties of monarchical regimes
* read in the light of the whole
instrument and especially for the purposes of Acquisition of naturality
the treaty * By BIRTH or By NATURALIZATION
* words used are given their natural * an individual acquires the nationality of the
meaning unless a technical sense was intended, state where he is born (jus soli) or the nationality
and of his parents (jure sanguinis)
* when they have different meanings in * NATURALIZATION – process by which a
the contracting states, should be interpreted in foreigner acquires, voluntarily or by operation of
accordance with the usage of the state where law, the nationality of another state
they are supposed to take effect *DIRECT NATURALIZATION:
* doubts should be resolved against the a. by individual proceedings, usually
imposition of obligations and in favor of the of judicial under general naturalization laws
the freedom and sovereignty of the contracting b. by special act of the legislature
parties c. by collective change of nationality as a
* conflicts in treaty interpretations be result of cession or subjugation
resolved only by agreement of the parties d. adoption of orphan minors as
nationals of the state where they are born
Termination of Treaties * DERIVATIVE NATURALIZATION:
1. Expiration of the term a. on the wife of the naturalized husband
2. Accomplishment of the purpose b. on the minor children of the
3. Impossibility of performance naturalized parent
4. Loss of the subject-matter c. on the alien woman upon marriage to
5. Desistance of the parties a national
6. Novation * on our own laws, an alien woman married to a
7. Extinction of one of the parties if the Filipino shall acquire his citizenship only if she
treaty is bipartite herself might be lawfully naturalized
8. Vital change of the circumstances under
the doctrine of rebus sic stantibus Multiple Nationality
9. Outbreak of war between the parties
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* DOCTRINE OF INDELIBLE ALLEGIANCE – an * once it decides to accept them, its competence


individual may be compelled to retain his original as territorial soveriegn as limited by the
nationality notwithstanding that he has already requirement that they be treated justly, in
renounced or forfeited it under the laws of a
accordance with the law of nations
second state whose nationality he has acquired
* a state may allow any of its nationals to remain * the alien canot as a rule claim a preferred
as such even if he may have acquired another
position vis-a-vis the national of the state where
nationality as where he is conferred an honorary
citizenship by a foreign government he is at best only a guest

* the foreigner may not enjoy the right to vote,


Loss of Nationality
* voluntary methods – renunciation, express or to run for public office, to exploit natural
implied, and request for release, both of which resources or to engage in certain businesses
usually precede the acquisition of a new regarded as vital to the interests of the local
nationality state
* involuntary methods – forfeiture as a result of
some disqualification or prohibited act lie * the foreigner must accept the institutions of
enlistment in a foreign army or long continued the local state
residence in a foreign state, and substitution of
one nationality for another following a change of * state is not an insurerof the life or property of
sovereignty the alien, whe he is within its territory

Statelessness * the foreigner is expected to take the customary


* statelessness is the condition or status of an precautions for the protection of his own rights
individual who is born without any nationality or
and to avail himself of the usual remedies when
who loses his nationality without retaining or
these rights are violated
acquiring another
* individual is powerless to assert any right that
otherwise would be available to him under
international law. THE DOCTRINE OF STATE RESPONSIBILITY
* Any injury to the individual by a foreign
jurisdiction is not a violation of his own right but * instances when an alien can claim a more
of the right of the state to the protection of its favored position than the national of the local
nationals; the right to complain belongs not to
state and hold the state liable for injuries
him but to the state of which he is a national.
committed against him while within its territory

CHAPTER 16 * a state may be held responsible for:

TREATMENT OF ALIENS a. international deliquency

* every state has the right, as inherent in b. directly or indirectly imputable to it


sovereignty and essential to its own security and
c. which causes injury to the natonal of
existence, to determine in what cases and under
another state
what conditions foreigners may be admitted to
its territory * liabilty will attach to the state where its
treatment of alien falls below the international
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standard of justice or wgere it remiss in * distinction must be made between direct and
according him the protection or redress that is inirect state responsibility
warranted by the circumstances
a. where the imternational delinquency
* FUNCTION: assure the traveler that when his was committed by superior government officials
rights are violated in a foreign state, he will not or organs, liability will attach immediately as
be denied any remedy simply because he is not their acts may not be effectively prevented or
one of its nationals reversed under the constitution and laws of the
state
* encourage more intercourse among
the peoples of the world through inter-visitation b. where the offense is committed by
of their respective countries inferior government officials or, more so, by
private individuals, the state will be held liable
only if, by reason of its indifferencein preventing
THE INTERNATIONAL STANDARD OF JUSTICE or pushing it, it can be considered to have
conived in effect in its commission
* Standard of th reasonable state, that is, as
referring to the ordinary normsof official
conduct observed in civilized jurisdictions.
EXHAUSTION OF LOCAL REMEDIES
* DOCTRINE OF EQUALITY OF TREATMENT – * the liability of the state for an international
where the laws of state fall below the delinquency, its enforcemnet cannot be claimed
international standard of justice, it is no defense by the injured foreigner unless, he first exhausts
that they are applicable not inly to aliens but as all available local remedies for the protection or
well, and equally, to the nationals of that state. vindication of his rights
The relations of that state with ots own nationals
are purely municipal; international law is * state must be given an opportunity to do
involved in its relations with the nationals of justice in its own regular way and without
other states. unwarranted interference with its sovereignty
by other states
FAILURE OF PROTECTION OR REDRESS
* this requirement may be dispensed with,
* state may be held liable if it does not make however, if there are no remedies to exhaust, as
reasonable efforts to prevent injury to the alien where the laws are intrinsically defective or
or, having done so unsuccesfully, fails to repair there is laxity or arbitrariness in their
such injury. enforcement or where the courts are corrupt or
* degree of diligence required where there is no adeqaute machinery for the
administration of justice
* responsibility does not immediately attach to
the state upon a showing of a failure to prevent * there would be NO remedy available from
or redress an injury to aliens “acts of state” which are not subject to judicial
review

RESORT TO DIPLOMATIC PROTECTION


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* if the injured foreigner has exhausted all the incorporates therein what is known as the
local remedies but without success, he may then CALVO CLAUSE
avail himself of the assistance of his states – but
only if he has a state. Otherwise, he will have no * Calvo Clause – stipulation by which the
alien waives or restricts his right to appeal to his
party to represent him, and he by himself, being
a mere individual, cannot institute his claim in his own state in connection with any claim arising
own name. from the contract and agrees to limit himself to
the remedies available under the laws of the
* any injury to an alien is a violation not of his local state.
own personal rght but of the right of his state to
hacve its nationals protected but of the right of * calvo clause may be enforced as a
his state to have its nationals protected lawful condition of the contract. However, may
not be interpreted to deprive the alien's state of
whenever they are in a foreign country
the right to protect or vindicate his interests in
* where the injured alien is stateless, his case will case they are injured in another state as such
be one of DANNUM ABSQUE INJURIA and cannot waiver can legally be made not by him but by his
be subject of diplomatic protection own state

* tie of nationality – required to exist from the EXCLUSION OF ALIENS


time of the injury until the time the international
claim is finally settled. Once the tie is broken, the * the state may also avoid liability to aliens by
claim itselfis deemed automatically abated. If, refusing their admission, but this is not regarded
the injured national dies while the claim is under as sound policy since it would provoke
retaliation in kind and ultimately isolate its
consideration and it should happen that his hers
are not nationals of the claimant state, the claim nationals from the rest of the international
will lapse community

* DEPORTATION: the removal of an alien


ENFORCEMENT OF CLAIM
out of the country, simply because his presence
* an international claim for damages may be is deemed inconsistent with the public welfare
resolved through negotiation or, if this fails, any and without any punishment being imposed or
of the other methods of settling disputes contemplated, either under the laws of the
country out of which he is sent, or under those
* in the event that the responsibility of the state
of the country to which he is taken
is established or acknowledged, the duty to
make reaparation will arise. Such reparation may * EXCLUSION: denial of entry to an alien
take the form of RESTITUTION or SATISFACTION
or COMPENSATION. DEPORTATION EXTRADITION

AVOIDANCE OF STATE RESPONSIBILITY


Unilateral act if the Effected at the request
* to avoid the intervention of the alien's state in local state of the state of origin
contracts, the local state sometimes
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Based on causes arising Based on offenses territory or against the interests of the
in the local state generally committed in demanding state
the state of origin 6. Rule of double criminality - the act for which
the extradition is sought must be punishable in
Undesirable alien may Calls for the return of both the requesting and requested states
be deported to a state the fugitive to the state
other than his own or of origin Procedure of Extradition
the state of origin
* if the surrender of a fugitive is sought, a
request for his extradition is presented through
diplomatic channels to the state of refuge

* this request will be accompanied by the


Basis of Extradition necessary papers relative to the identity of the
wanted person and the crime he is alleged to
* The extradition of a person is required only if have committed or of which he has already been
there is a treaty between the state of refuge and
convicted
the state of origin
* upon receipt of request, the state of refuge will
* in the absence of a treaty – local state has conduct a judicial investigation to ascertain if the
every right to grant asylum to the fugitive and to crime is covered by the extradition treaty and if
refuse to deliver him back to the latter state even there is a prima facie case against the fugitive
if he is a national according to its own laws

Fundamental Principles of Extradtition CHAPTER 17


1. extradition is based on the consent of the SETTLEMENT OF INTERNATIONAL DISPUTES
state of asylum

2. Principle of specialty – a fugitive who is


extradited may be tried only for the crime * DISPUTE – exists when one state claims that
specified in the request for extradition and another state should have behave in a certain
included in the list of offenses in the extradition manner and that claim is rejected by the latter
treaty
* actual disagreement between states
3. any person may be extradited regarding the conduct to be taken by one of
them for the protection or vindication of the
4. political and religious offenders are generally interests of the other
not subject to extradition
* SITUATION – initial stage of a dispute
5. in the absence of a special agreement, the
offense must have been committed within the
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* Dispute is LEGAL – involves a justiciable rights in order to enable them to discuss the issues in
based on law or fact susceptible of adjudication contention and arrive at an agreement
by a judicial or arbitral tribunal.
4. Mediation – third party does not merely
* Dispute is POLITICAL – if it cannot be decided provide the opportunity for the antagonists to
by legal processes on the basis of the substantive negotiate but also actively participates in their
rules of international law because the discussions in order to reconcile their conflicting
differences of the parties spring from claims and appease their feelings of resentment
animosities in their mutual attitudes rather than
5. Conciliation – active participation of a third
from an antagonism of legal rights
party in the attempt of the disputants to settle
* the solution to such a disputes lies not in the their conflict, and the recommendations made
councils of the courts but in the corridors of by it are likewise not binding.
diplomacy
6. Arbitration – solution of a dispute by an
Methods of settling disputes impartial third party, usually a tribunal created
by the parties themselves under a charter known
* disputes are required to be settled,
as the COMPROMIS
conformably to one of the basic principle of the
UN, “by peaceful means in such a manner that 7. Judicial Settlement – the nature of its
international peace and security, and justice are proceedings and the binding character of the
not endangered decisions but also in the fact that the disputes
submitted for adjudication are legal rather than
Amicable Methods political
1. Negotiation – generally the first step taken in
the settlement of an international dispute is the
discussion undertaken by the parties themselves ARBITRATION JUDICIAL SETTLEMENT
of their respective claims and counterclaims with
a view to their just and orderly adjustment.
Arbitral tribunal is an ad Judicial tribunal is a
* where the talks prosper and hoc body created and pre-existing and
agreement is reached, it is usually formalized in filled by the parties to permanent body
a treaty or more directly effected through the the dispute themselves
rectification of the injury caused to the claimant
state
Submission to Jurisdiction -
2. Inquiry – investigation of the points in arbitration is voluntary compulsary
question, on the theory that their education will
contribute to the solution of the differences
between the parties.

3. Good Offices – method by which a third party


attempts to bring the disputing states together
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Arbitration proceedings The law applied by the 2. occupation of territory


- limited tribunal in judicial
3. pacific blockade
settlement is
independent of the will
of the parties
The United Nations

* United nations may be asked or may decide on


its own authority to take a hand in its settlement.

* the jurisdiction of the court is not compulsory * the security council shall have the jurisdiction
but dependent on the agreement of the parties to intervene in;
to submit to and be bound by its decisions. Such
a. all disputes affecting international
consent may be manifested in a treaty
peace and security
containing what is called the “compromissary
clause” b. all disputes which, have been
submitted to it by the parties for settlement
8. ACTION BY REGIONAL ORGANIZATIONS –
resorted to by the parties at their own volition or * such disputes may be brought to it by:
taken by the body itself at its own instance if
allowed by agreement of the members a. the security council, on its own motion

Hostile Methods b. the general assembly

1. INTERVENTION c. any member of the united nations

2. RETORSIONS – retaliation where the acts d. the secretary general


complained of do not constitute a legal ground
e. any party to the dispute, provided that
of offense but are rather in the nature of
in the case of non-members of the UN, they
unfriendly acts but indirectly hurtful to other
should accept in advance, for the purposes of the
states
dispute, the obligations of pacific settlement
3. REPRISALS – act of self-help on the part of the under the Charter
injured state, responding after an unsatisfied
The Security Council may recommend
demand to act contrary to international law on
appropriate measures or methods of
the part of the offending state
adjustment, taking into consideration:
*they aim to impose on the offending
a. Any amicable measures already
state reparation for the offense or the return to adopted by the parties
legality in avoidance of new offenses b. That legal disputes should as a rule
be referred to the International
*Common forms of reprisals Court of Justice
*Where the terms of settlement are rejected by
1. display of force
the parties, the Security Council is empowered
to take more drastic steps
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a. PREVENTIVE ACTION – it may adopt


such measures not involving the use of armed
force Commencement of war

* War is supposed to commence on the date


b. ENFORCEMENT ACTION
specified in the declaration or on the date it is
CHAPTER 18 communicated to the enemy

WAR * formality is often not observed as evidenced by


the number of wars that have broken out
*WAR – armed contention between the public without the “previous and explicit warning”
forces of states or other belligerent
required
communities, implying the employment of
violence among the parties as a means of * commence from the moment of the first act of
enforcing their respective demands upon each force committed by one state with the intent of
other making war or committed without such intent
but considered by the other state as constituting
* War may exist even without the use of force war

Outlawry of war Effects of the Outbreak of War


* war was originally accepted as a legitimate 1. the laws of peace cease to regulate the
means of a compulsion, that it was a reaction to relations of the belligerent and are superseded
an international delict
by the laws of war
* in only 2 instances is the use of force allowed: 2. diplomatic and consular relations between the
1. exercise of the inherent right of self- belligerents are terminated and their respective
defense representatives are allowed to return to their
own countries
2. enforcement action
3. treaties of a political nature are automatically
cancelled, but those which are precisely
intended to operate during war are activated
How are the agreements enforced?
4. individuals are impressed with enemy
*the commonly accepted sanctions are:
character
a. protest lodged by one belligerent, usually
a. nationality test – if they are nationals
accompanied or followed by an appeal
of the other belligerent wherever they may be
b reparation for damages is cause by the
b. domiciliary test – if they are domiciled
defeated belligerent
aliens in the territory of the other belligerent, on
c. punishment of war criminals the assumption that they contribute to its
economic resources
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c. activities test – if being foreigners they the enemy, spontaneously take arms to resist
are nevertheless participate in the hostilities in the invading troops without having had time to
favour of the other belligerent organize themselves

*corporations and other juridical persons are 4. officers and crew of merchant vessels who
regarded as enemies if a majority or a substantial forcibly resist attack
portion of their capital stock is in the hands of
enemy national or if they have incorporated in
the territory or uner the laws of the other Conduct of Hostilities
belligerent
* three basic principles underlie the rule of
5. enemy public property found in the territory warfare
of the other belligerent at the outbreak of
hostilities is subject to confiscation 1. principle of military necessity –
employ any amount and kind of force to compel
the complete submission of the enemy with the
Combatants and non-combatants least possible loss of lives, time and money

*Combatants – those who engage directly in the 2. principle of humanity – use of any
hostilities; may lawfully wage war and are thus measure that is not absolutely necessary for the
subject to direct attack from the enemy purposes of war

*Non-Combatants – those who do not engage 3. principle of chivalry – those that


directly in the hostilities; should not be subjected require the belligerents to give proper warning
to attack as they are not supposed to participate before launching a bombardment or prohibit the
in the actual fighting use of perfidy in the conduct of the hostilities

* an individual can only be considered a spy if,


* The following are regarded as combatants:
acting clandestinely or under false pretenses, he
1. members of the armed forces obtains or seeks to obtain information in the
zone of operations if a belligerent
2. irregular forces
*spies are subject to the municipal law of the
a. they are commanded by a person other belligerent
responsible for his subordinates
* a spy taken in the act cannot be punished
b. they wear a fixed and distinctive sign
without previous trial
recognizable at a distance

c. they carry arms openly


Kinds of Warfare
d. they conduct their operations in
accordance with laws and customs of war * warfare may be waged on LAND or SEA or in
the AIR, separately or simultaneously
3. levee en masse – the inhabitants of
unoccupied territory who, on the approach of
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* most of the rules on aerial warfare have unless absolutely prevented, the laws in force in
become obsolete and need to be revised to the country.
make them conform to present realities
* the belligerent occupant may promulgate new
* as for naval warfare, the most serious laws, non-political as well as political, provided
difficulties lie in th disagreement among states they do not contravene the general accepted
as to whether armed merchant vessels are principles of international law. The political laws
subject to direct attack are automatically abrogated upon the end of the
occupation but the non-political laws may
*one important rule is that booty or continue even beyond the occupation unless
personal property found in the battlefield is they are expressly repealed or modified by the
subject to confiscation by the belligerent
legitimate government
occupation except only the personal belongings
of the individual combatants which have no * it is permitted for the belligerent occupant to
military value. introduce military currency, provided the
purpose is not to debase the country’s economy
THEATRE OF WAR: place where the hostilities are
actually conducted * private property cannot be confiscated, but
those susceptible of military use may be seized,
REGION OF WAR: greater area where the subject to restoration or compensation when
belligerents may lawfully engage each other peace is made

* the property of municipalities and of


Belligerent Occupation institutions dedicated to religion, charity and
education, and the arts and sciences, even when
* territory is deemed occupied when it is actually state owned, shall be treated as private property
placed under the authority of the hostile army, and their destruction is expressly forbidden
but this occupation is limited only to the area
where such authority has been established and * the army of occupation can only take
can be effectively exercised. It is not necessary possession of cash, funds and realizable
that every square foot of the territory in securities which are strictly the property of the
question be actually occupied state, depots of arms, means of transport, stores
and supplies, and generally movable property
* Belligerent occupation does not result in belonging to the state which may be used for
transfer or suspension of the sovereignty of the military operations
legitimate government although it may at the
moment be unable to exercise it. The belligerent *the occupying state shall be regarded only as
occupant cannot perform such acts as declaring administrator and usufructuary of public
the independence of the occupied territory or buildings, real estate, forest, agricultural estates
requiring its inhabitants to renounce their belonging to the hostile state and situated in the
allegiance to the lawful government occupied territory

* the belligerent is required to restore and


ensure public order and safety while respecting,
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Postliminium LICENSE OF TRADE – permission given by the


competent authority to individuals to carry on
* persons or things taken by the enemy are trade even though there is a state of war
restored to the former state on coming actually
into the power of the nation to which they
belong
Suspension of Hostilities
* JUS POSTLIMINIUM – reinstatement of the
authority of the displaced government once * SUSPENSION OF ARMS – temporary cessation
control of the enemy is lost over the territory of the hostilities by arrangement of the local
affected commanders for such purposes as the gathering
of the wounded and the burial of the dead.
* upon the end of a belligerent occupation, the
laws of the re-established government are * ARMISTICE – suspension of all hostilities within
a certain area or in the entire region of war
revived and all acts taken by the belligerent
occupant which it could not legally do under the agreed upon by the belligerent governments
law of nations, as well as lawful acts of a political usually for the purpose of arranging the terms of
complexion, are invalidated the peace

ARMISTICE SUSPENSION OF ARMS

Non-Hostile Intercourse
Purpose: political Purpose: military
FLAG OF TRUCE – white flag carried by an
individual authorized by one belligerent to enter May be concluded by May be agreed upon by
into communication with the other the commanders-in- the local commanders
chief
CARTELS – agreements to regulate intercourse
during war on matters as postal and telegraphic
communication Usually in writing May be oral

PASSPORT – written permission given by the


belligerent government or its authorized agent
subjects of the enemy state to travel generally in
belligerent territory * CEASEFIRE – unconditional stoppage of
hostilities by order of an international body
SAFE-CONDUCT – pass given to an enemy
subject or to an enemy vessel allowing passage * TRUCE – regarded as ceasefire with conditions
between defined points attached

SAFEGUARD – protection granted by a * CAPITULATION – surrender of military forces,


commanding officer either to enemy persons or places or districts in accordance with the rules of
property within his command military honor
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Termination of war

1. cessation of hostilities CHAPTER 19

2. conclusion of a negotiated treaty of peace NEUTRALITY

3. defeat of one of the belligerents followed by a * A state is said to be neutral if it does not take
dictated treaty of peace part, directly or indirectly, in a war between
other states.
* Principle of uti possidetis – property or
territory in the possession of the respective
belligerents upon the termination of the war is
Neutrality and Neutralization
retained by them

* Status quo ante – calls for the complete * neutrality – dependent solely on the attitude
restoration to their former owners of property or of the neutral state, which is free to join any of
territory that may have changed hands during the belligerents any time it sees fit
the hostilities, with the exception only of prize * governed by the law of nations
and booty
*obtains only during war
* war is supposed to end with the re-
establishment of peace but the precise date is * neutralization – result of a treaty wherein the
not easily fixed in view of the different methods duration and the other conditions of the
of terminating the state of hostilities neutralization are agreed upon by the
neutralized state and other powers

* this agreement governs the conduct of


Aftermath of War signatories
* one of the inevitable consequences of war s * intended to operate in time of peace
the implied judgment, right or wrong, that the as well as in time of war
vanquished belligerent is the guilty party in the
dispute that caused the hostilities. *Only states may become neutral but portions of
states may be neutralized
* treaty of peace imposed by the victor upon the
defeated state is regarded as a punishment as is
sustained on the ground although marked by the
Laws of Neutrality
vice of duress that normally would invalidate
other agreements a. Relations of the belligerent states with
the neutral state
*nationals of the vanquished state may be b. Relations of the belligerent states with
protected and punished as war criminals and for the nationals of the neutral state
other violations of international law. They may
not escape responsibility on the ground that
they were merely acting on orders of their state Relations of belligerent States and Neutral
States
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* a neutral state has the right and duty to abstain *not more than 3 vessels from any belligerent
from taking part in the hostilities and from giving shall be allowed simultaneously in the same
assistance to either belligerent; prevent its neutral port or waters
territory and other resources from being used in
* territorial waters of a neutral state must never
the conduct of hostilities by the belligerents, and
to acquiesce in certain restrictions and be used as asylum for belligerent vessels under
limitations that the belligerent may find pursuit or attack by the enemy
necessary to impose, especially in connection * passage of military aircraft belonging to the
with international commerce belligerents is not allowed across the airspace of
* belligerents are bound to respect the status of a neutral state.
the neutral state *where a belligerent aircraft is forced to land on
neutral territory, the same should be detained
and its officers and crew interned
Use of Neutral Territories

* neutral territory is inviolable and cannot be


used by the belligerents for the movement of Use of Neutral Facilities and Services
troops and the undertaking of military * it is prohibited from giving belligerents any
operations in general form of direct assistance in connection with the
* use of neutral territory is not completely conduct of hostilities.
barred to the belligerents (example: passage of * neutral state may not send military
sick and wounded troops) contingents, extend loans or even sell for
valuable consideration, supplies of war to either
* neutral state may give refuge to troops from
the belligerent forces or both of the belligerents

* escaped prisoners of war need not be detained * neutral state is not obliged to prevent the
by the neutral state but must be assigned a place export from or transit through its territory of war
supplies purchased from private traders by the
of residence if they are allowed to remain
belligerents in the ordinary course of commerce,
*warships may not enter neutral ports, it is required to take reasonable diligence in
roadsteads and harbours except only in cases of preventing the delivery of vessels constructed
unseaworthiness. The usual duration of the and armed in its territory for use by any of the
sojourn is 24 hours but this may be shortened or belligerents
extended, depending on the reason for the
entry. Thus, the vessel must leave as soon as it Relations of Belligerent States with Nationals of
has been re-provisioned Neutral states

* neutral states enact legislation to avoid their


*General rule: repairs in their territory of
damage sustained by a warship in battle – involvement in foreign wars as a results of the
permitted so long as they are not intended to acts of their nationals
increase the fighting force of the vessel.
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* neutral states are free to allow their nationals * ABSOLUTE CONTRABAND – necessarily useful
to deal, in their private capacity, with any of the for war under all circumstances
belligerents
* subject to seizure so long as they are
* international law considers the relationship as bound for enemy or enemy-held territory
strictly between the individual and the
belligerent states and whatever hardships may * CONDITIONAL CONTRABAND – both civilian
be suffered by its nationals as a result thereof and military purposes
must, as a rule, be acquiesced in by the neutral *may be seized only when it can be
state shown that they are destined for the armed
forces or the authorities of the belligerent
government
Visit and Search
* FREE LIST – includes goods useful for war and
* belligerent warships and aircraft have the right bound for the belligerents but exempted from
to visit and search neutral merchant vessels on the law on contraband for humanitarian reasons
the high seas for the purpose of determining
whether they are in any way connected with the * DOCTRINE OF ULTIMATE CONSUMPTION –
goods intended for civilian use which may
hostilities
ultimately find their way to and be consumed by
* the vessels may be captured as prize if they are the belligerent forces are also liable to seizure
engaged in hostile activities, if they resist to visit
and search, or if there is reasonable suspicion * contraband are subject to condemnation
that they are liable to confiscation * DOCTRINE OF INFECTION – if they are shipped
together with innocent goods belonging to the
* the cargo of these vessels may also be captured
under certain conditions, as when they are same owner; the latter may also be confiscated
contraband * contraband are liable to capture from the time
*Prize is not confiscated summarily but must be they leave the port in which they are loaded and
brought to a prize court for adjudication until they reach their final hostile destination

*PRIZE COURT – is a tribunal established * DOCTRINE OF ULTIMATE DESTINATION –


by a belligerent under its own laws, and applies liability of the contraband to capture is
rules of international law in the absence of determined not by their ostensible but by their
real destination
special municipal legislation.
* even if the vessel intends to stop at an
Contraband
intermediate neutral port, it will still be
* contraband – term applied to goods which, considered as in one continuous voyage
although neutral property, may be seized by a provided it can be shown that its cargo will
belligerent because they are useful for war and ultimately be delivered to a hostile destination
are bound for a hostile destination
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* DOCTRINE OF CONTINUOUS VOYAGE – when by the ships of the blockading force after it has
the goods are reloaded at the intermediate port left or tried to enter the blockaded port
on the same vessel

* DOCTRINE OF CONTINUOUS TRANSPORT –


when they are reloaded on another vessel or Unneutral Service
other form of transportation * consists of acts, of a more hostile character
than carriage of contraband or breach of
Blockade
blockade, which are undertaken by merchant
*Blockade – hostile operation by means of which vessels of a neutral state in aid of any of the
the vessels and aircraft of one belligerent belligerents
prevent all other vessels, including those of
neutral states, from entering or leaving the ports * a neutral vessel is liable to condemnation for
or coasts of other belligerent, the purpose being unneutral service:
to shut off the place from international 1. if it is making a voyage special with a view to
commerce and communication with other states the transport of individual passengers who are
*Pacific blockade – applies only to the vessels of embodied in the armed forces of the enemy or
blockaded state and does not affect the vessels with a view to the transmission of information in
of other states the interest of the enemy; OR

2. if with the knowledge of the owner, or the one


*Requisites of blockade:
who charters the entire vessel, it is transporting
a. binding – duly communicated to the neutral military detachment of enemy or one or more
states persons who, during the voyage, lend direct
assistance to the operations of the enemy
b. effective – it is maintained by adequate force
so as to make ingress to or egress from the port * a neutral vessel is also liable to condemnation
dangerous and to be treated as a merchant vessel of the
enemy:
c. established by the proper authorities of the
belligerent government 1. takes a direct part in the hostilities

d. limited only to the territory of the enemy and 2. if it is under the orders or control of an agent
not extended to neutral places or international placed on board by the enemy government
rivers
3. chartered entirely by the enemy government
e. impartially applied to all states alike
4. if it is at the same time and exclusively either
* the liability of a neutral vessel to capture for devoted to the transport if enemy troops or the
breach of blockade is contingent on its transmission of information
knowledge, actual or presumptive of the
blockade and continues as long as it is pursued
Angary
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* by the right of angary – a belligerent may, upon


payment of just compensation, seize, use or
destroy, in case of urgent necessity for purposes
of offenses or defense, neutral property found in
its territory, in enemy territory, or on the high
seas

* THREE REQUISITES

1. that the property is under the control or


jurisdiction of the belligerent

2. thet there is urgent necessity for the taking

3. that just compensation is paid to the owner

Termination of Neutrality

1. when the neutral state joins the war

* neutral state will be governed by the


laws of war in its relations with the other
belligerents and by the laws of neutrality in its
relations with all other states

2. upon conclusion of peace

*all states will again be governed by the


laws of peace