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TABLE OF CONTENTS

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Chapter 1

<mNERAL PUINCIPLR8

Nature and Scope..................................................................................... 1


Divisions oflnt:ematio11al Law ............................................................. . 2
Distinctions with Municipal Law .......................................................... 2
Relation to Municipal Law ................ ... .. ..... ....... ... ... .. .. ..... ... ... .. .... ......... 5
Constitution v. Treaty.............................................................................. 10
Basis oflnternational Law ............. ........ ... ............... ...... .. ....................... 12
Sanctions ofintemational Law .............................................................. 14
Enforcement oflnternational Law ........ ................................................. 16
Fm1ctions of lnt:emational Law ...... ............ ... .... .. .. .. ....... ..... .. ........... ...... 18
Distinctions with Other Concepts........................................................... 18
Frei;ent 8tate oflntemational Law .. ...... .. . .. ......... ..... .. ...... ...... 19

Chapter· 2

~OURCES OF INTERN..\l'IONAL LAW

Treaties .,...............
21
Custo~
22
General Principles of Law 24
Secondary Sources
25
Chapter 3

THE INTE'RNATlONAL COMMUNITY

Subject and Object Distinguished 27


Development of the International Conununity 28
States
29

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TABJ,1!; OF C ONTENTS TABLE OF CoN'I'EN'l'S

Page
/'age
(a) People 30 (e) The Tnternation9.1. Cr:u.nt 0f Justice 68
(b) Territory 30 (f) n,.. 1-:Pf'rPt.A,·iAI'. 70
(c) Goverrunent ............................................................................... . 31
(d) Sovereignty 31 Chapt~r 5
Capacity ofStates ..... 31
Classification of States 32 TJ.JF. l:ONt:EPT OF THF. $TATV.
Independent States 33
(a) Simple States 33 Creation of the State ...................... .......................................................... 72
Cb) Composite States 33 The Principle of State Continuity............................................................ 73
(1) Real Union 33 Extinction of the State .............................. ........... .................................... 74
(2) Federal Union 34 Succession ofStates ................................................................................. 75
(3) Confederation 34 Consequences ofState Succession ......... ...... ..................... ........ .............. 75
Personal Union
(4) 35 Succession of Governments .. ....... .... ......... ........... .................. ....... ....... 78
Inrorporate Union
(5) 35
N eutralized States 35 Chapter 6
Dependent States 36
The United Nations. 37 RECOGNITION
The Vatican City 38
Colonies and Dependencies 39 Objects of Recognition 81
Mandates and Trust Territories 40 Kinds of Recognition 81
Belligerent Communities 41 Recognition of States 83
Internationl:'.l .!\,hninist.t·ative Bodies 42 Recognition of Governments 84
fodivid'.U:11~ . 42 Effects of Recognition of States and Governments 87
Oetjen v. Central Leather Co. 8£1
Chapter & Recognition of Belligerency 89
l:ousequeni:es of Rero~iti.on of Belligm·ency ~J
TW. TJNrTED NATIONS
r.h,.rt.".. ;
The U nited Nations 45
The U.N. Charter 48 THE .t:UGHT OF EXISTENCE AND SELF DEF'ENSE
The Preamble to the Charter 49
Purposes ... 51 Requisites of Rights 93
Principles 52 The Cuban Missile Crisis 95
Membership 55 Regional Arrangements 96
Suspension of Members 58 The Balance of Power 97
Expulsion of Members ·····~···· .......... 58 Aggression Defined 98
Withdrawal of Members 59
O~ns of the United N1:ttfons ....... .. 60 Chapt-er 8
(a) The General Assembly .. 60
(b) The Security Council 62 THE RIGHT OF INDEPENDENCE
(c) The Economic and Social Council 65
Idealoflndependence 101 , ,
(d) The Trusteeship Cow1cil 67
Nature oflndependence 102 · '
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TABJ.J,; or C')1;'fEtITS
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T,\BtE OF Co~'mms
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103 Maritime and Fluvial Jurisdiction 130
Intetvention
1(.lf. The Contiguous Zone 132
The Drago Doctrine
The Continental Shelf 133
Chapte1· 9 The Patrimonial Sea 134
The Open Seas 134
THE RIGHT 01< RQTJAJ .TTY The Lotus Case 135
Ae1ial Jurisdiction 137
106 Outer Space 138
Essence of Equality .
Legal Equality v. Factual Inequality ....... 107 Other Tenitori~s 13~

C'hapt~,· 10 Chapter 12

TERRITORY THE RIGHT OF' LEGA'l'ION

Acquisition and Loss ofTenitory 109 Agents ofDiplpmatic Intercourse 141


Discovery and Occupation 110 of
The Head State 142
(a) Requisites 110 The Foreign Secretary 142
(b) Dereliction ..... 112 Diplomatic Envoys 143
113 The Diplomatic Corps 144
Prescription
Cession 113 Appointment of Envoys 145
Subjugation
114 Commencement of the Diplomatic Mission 146
Accretion
114 Diplomatic Functions 147
r.nmpo11P.nts ofTenitory .. 115 Conduct of Diplomatic Mission L48
(a) The Ten·estrial Domain 115 Diplomatic Immnnities and Privileges 148
(b) The Ma.iitime and Fluvial Domain 115 (a) Personal Inviolability 149
(1) Rivers 116 (b) Immunity from Jmisdiction 150
(2) Bays 117 (c) Inviolability of Diplomatic Premises 154
(3) The Territorial Sea 117 (d) Inviolability of Archives 155
(4) The UN Conferences on the Law of the Sea 118 (e) I.nviolability of Communication 156
(5) The Philippine Territorial Sea ... ............. . 119 (f) Exemption from Testimonial Duties 156
(6) The Archipelago Doctrine 120 (g) Exemption from Taxation 157
(7) Basis of Article I of the 1987 Constitution 121 (h) Other Privileges 157
(8) Methods of Defining th~ Te1,:it.i:1Ii8l Sea 122 The Diplomati<: 8uit.e or Retinue 158
(c) '!'he Aerial Domain 123 Duration 158
Termination of Diplomati-:! Mission 159
Chapter 11
Chapter rn
.nmISDICTION
CONSULS
Personal Jurisdiction 125
Territorial Jurisdiction 127 Consuls 161
Land Jurisdiction 129 Kinds and Grades 162

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Appointment 162 The International Standard of Justice 194
Functions 163 Failure of Protection 01· Redress 195
Immunities and Privileges 164 Exhaustion of Local Remedies 197
TE'.rmination of Consular Mission 166 Resort to Diplomatic Protection 198
Enforcement of Claim 199
Chapter 14 Avoidance of State Responsihil.ity 200
Exclusion of Aliens 201
TREATIES Extradition 202
Basis of Extradition 202
FtU1ctions of Treaties 168 Fundamental Principles of Extradition 203
Essential Requisites of a Valid Treaty 169 Procedure of Extradition 205
(a) Tl'eaty-making Capacity 169
(b) Authorized Representatives 169 Chapter 17
(c) Freedom of Consent 170
(d) Lawful Subject-Matter 171 SETTLEMENT OF INTERNATIONAL DISPUTES
(e) Compliance with Constitutional Processes 172
Treaty-making Process 172 Setj;lement of International Disputes 207
Binding Effect of Treaties 175 Methods of Settling Disputes 208
Observance of Treaties 176 Amicable Methods 209
Treaty Interpretation 179 Hostile Methods 213
Termination of Treaties 180 The United Nations 215

Chapter 15 Chapter 18

NATIONALITY AND STATELESSNESS WAR

Nationality and Statelessness ................................................................ 182 War 221


Acquisition of Nationality ........................................................................ 183 Outlawry of War 222
lvlultiple Nationality ................................................................................ 184 Laws of War ..... . 222
Loss of Nationality ................................................................................... 185 Commencement of War 224
Conflict of Nationality Laws ................................................................... 185 Effects of the Outbreak of War 224
Unit.ed States (Alexander Tellech) v. Austiia a.n,:l Hm:>.g"lry ............... 187 Combamnts and Non-combatants 226
The Canevaro Case .................................................................. ................ 187 Conduct of the Hostilities 227
The Nottebeh".".' 0"'""' . . ... .... ...... ......................................... 188 Kinds '.'.lfWa1fare ........ . . 229
Statelessness ............................................................................................. 189 Belligerent Occupation 230
Postliminium 233
Chapter 16 Non-Hostile Intercourse 234
Suspension of Hostilities 235
TREATMENT OF ALIENS Termination of War 236
Aftermath of War 238
Treatment of Aliens .................... ............... .......... ..................................... 192
The Doctrine of State Respo~sibility ...................................................... 193
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TABLE '}F ('011.11 t:'.NT~

I'aE!e
Chaptet· 19

NRTJTRAl,ITY
lN.TERNA'fTON AT, Li\.\V
Neutrality................. ... ...................... ........................................ ........... ... 242
Neutrality and Neutralization................................................................. 243
Laws of Neutrality .................................................................................... 243
Relations of Belligerent States and Neutral States ............................. 243
Use ofNeutral Territories ....................................................................... 244 Chapter 1
Use ofNeutral Facilities and Services ..................................... ............. 246
Relations of Belligerent States v..ith Nationals of Neutral States ...... 248 GENERAL PRINCIPLES
Visit and Search ..................................................................... .............. .... 248
Contraband ................................................................................................ 249
Blockade ........................................ ............................................................ 252
Nature and Scope
Unneutral Service ....................................................................... ......... .... 253
Angary ....................................................................................................... 254
Termination of Neutrality ....................................................................... 255 THE EXPANDING SCOPE of international law has
modified its traditional concept as "a body of rules and
APPEND!~l?~ principles of action which are binding upon civilized states
~- in their relations with one another."1 Although this defini-
A-Charter of the United Nations ...................................................... 257
B-Statute of the International Court of Justice ................................. 294 tion is still widely accepted, it is now admitted that there
C-Vienna Convention on Diplomatic Relations ........................... ...... 313 are other entities besides 'states that are also governed in
D--Universal Declaration 0fH11m1:1n Right,;, ........................................ 333 va13ring degree by the law of nations. A notable example is
Refe~n,;es .. .... .. . ... ......... .. ... ... ..... ...... .... ...... 341 th~1.Jnited Nations. Another is thl individual hi•nself, who
--oOo--- has even been suggested as the real and only subject of
international law, on the ground that "all law is a regula-
tion of human conduct."2 In view of these, many writers
now agree with Schwarzenberger that-
T11t.P•·11::,ti,n11,I l':'w is the body of lP.giil rules which apply
between sovereign states and such other entities as have been
granted international pel'Sonality:

1
Briefly, 1.
2
Hans Kelsen, Theorie Generale due Droit International Pub-
lic, 1932, 148.
3
Schwarzenberger, 1.

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n,.-'" r''~ >1 PR.TNr.TFLF.S 3
f "-l'J'k'l?ll.:A TION,l,l, Li\Vv'
'l.
to the municipal or private law of each state rather than
As thus understood, the phrase "international law" is as a part of international law. While it has been suggested
obviously a misnomer in so far as it suggests that it relates 4
in one oft-cited case that international law covers both
to the intercourse of nations rather than of states. Fur- public and private international law, the consensus is that
thermore, its restrictive import would exclude from its only those precepts applicable to relations of international
operation those other international persons which, al- persons inter se fall within the field of international law.
though non-states, are directly assigned certain rights and The monists do not share this opinion because they
responsibilities m the international community. Never- believe in the oneness or unity of all law. To them, "the
theless, the nomenclature has achieved practically univer- main reason for the essential identity of the two spheres of
i\lll
sal acceptance since it was first employ~d in 1870 by Jer- ]aw is ... that some of the fundamental notions of Inter-
emy Bentham in his Introduction to the Principles of Mor- national Law cannot be comprehended without the as-
als and Legislation. It is now us8d interchangeablv 'Nith sumption of a superior legal order from which the various
anoth.P.Y familiar t~pn, "thP. la.w of nations.''. systems of Municipal Law are, in a sense, derived by way
of delegation."5 In both spheres, they contend, law is es-
Divisions oflnternatimrnl T,aw
sentially a command binding upon the subjects independ-
The grand divisions of international law are the laws ehtly of their will, and it is ultimately the conduct of indi-
of peace, the laws of war, and the laws of neutrality. .·~ duals which it regulates.
ThPii:if'WiilQb.·.i~~;~overn the normal relations of To the dualists, however, who believe in the dichot-
states. When war bre~·h out between or among some of omy of the law, there are certain well-established differ-
them, the relations of these states cease to be regulated epces between intemational law and municipal law.
under the laws of peace and come under the laws of war In the first place, municipal law ;is issued by a politi-
for the duration of the hostilities. Those states not in- cal superior for observance by tho~e under its authority
volved in the war continue to be regulated under the laws whereas~l;fif~tional law is not imposed upon but simply
of peace in their relations inter se. However, their relations adopted'by states as a common rule of action among them-
with the belligerents, or those involved in the war, are selves: As Oppenheim points out, "Whereas Mlmicipal
governed by the rn.ws of neutrality. ~aw! is a law of a sovereign over those subjected to his
When the war ends and peace is restored, the rela- sway, the'Lii,wiofNationsiis a law, not above, but between,
tions of all the members of the family of nations will come sovereign states and is, therefore, a weaker law.',6
again under the l~wr;: of pP.ace, until another war b:rl?~ki:: Secondly, municipal lavv consists mainly of enact-
Otlt. ments from the lawmaking authority of e:::ich !':ti3.te
wh":'rea8 1nternatim1al law is derived not from any par-
Distinctions with Municipal Law
Most present-day legal analysis regards private in- 'Hilton v. Guyot, 159 U.S. 112,
~ Oppenheim-Laut~rpacht, 38,
., : ,. · ternational law, so-called, or conflict of laws, as pertaining i CL Minon, Conflict of Laws, 2·4,
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4 li:'l'l'ERNA'I'IONAL LAW GF.UETIAL Pnl?JCI!' l.f.S s

ticular legislation but from such sources as international Rela tion to Municip al Law
customs, international conventions and the general prin-
ciples oflaw. It is a universally accepted postulate that, with or
A third distinction may be noted, viz, that municipal without an express-declaration to this effect, states admit-
law regulates the relations of individuals among them- ted to the family of nations are bound by the rules pre-
selves or with their own states whereas in~ rri1 tional law scribed by it for the regulation of international inter-
applie.s to the relations inter se of states and"'other interna- course. This is an inevitable consequence of membership
tional persons. in the international community. Conformably, it was held
8
Accorqingly, and this makes the fourth difference, in Ware v. Hylton that ''when the United States declared
violations of µi unicipal law are redressed through local their independence, they were bound to receive the law of
administrative and j udicial processes whereas questions of nations in its modern state of purity and refinement." This
mt~~ti2P.~~i:~w~;·are resolved through state-to-state same case declared that "the law of nations is a part of the
transactions ranging from peaceful methods like negotia- law of Great Britain." In the Paquete Habana Case,9 Jus-
tions and arbitration to the hostile arbitrament of force tice Gray asserted categorically: "International law is a
like reprisals and even war. part of our law and must be ascertained and administered
by the courts of justice of appropriate jurisdiction as oft.en
Finally, breaches o~ 1nfApS!-(law generally entail
only individual responsibility whereas responsibility for as qnestions of rights depending upon it are presented for
infractions o~p;~r.Jm~~vtt~~j~~\\';·~is usually collective in the determination."
sense that it attaches directly to the state and not to its More explicit is the statement that "the law of na-
nationals. tions, although not specially adopted by the Constitution
However, it is possible for a principle of municipal or any municipal act, is essentially a part of the law of the
law to become part of international law, as when the prin- land. Its obligation commences and runs with the exis-
ciple is embodied in a treaty or convention, like the Hague tence of a nation."10
Conventions of J.899 and 1907 relating t.o personal status ~orne stl'l!°-88 havp seen fit to emphEt.siie their amena-
and the Geneva Convention of 1930 on bills of exchange. pility to this fllq,cfrine of incorporation, as it is called, by
AJso, as observed by one writer, "the practice of states of affirming their recognition of the principles of interna-
giving greater or less validity to the legislation of other !ional law in their constitutions. Among these are Austria,
states under particular circumstances contains the ele- Germany, Korea and the Philippines. Thus, in Article II,
ments of international law."7 Section 2, of our Constitution, it is provided that-

8
3 Wall, 199, 228 (U.S. 1796).

7
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4

.,.
9

10
175 U.S. 677.
Attorney Gener al Ra ndolp's Opinion of June 26, 1792, 1 Ops.
Fenwick, 245-246. Atty. Gen. 26, 27. r :

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6 TN fErtNATIC'NAL LA\\; n E!':ERAL I'RmcrrLES 7

The Philippines renounces wa.r as an instrument of na- tion would not create international complications inas-
tional policy, a do pts the gener ally accepted ptinciples of inter-
national law as part of the law of t he land, and adheres to the
much as it is not often tha t inconsistencies arise between
policy of peace, equality, justice, freedom, coopera tion and am- the principles of international law a nd the municipal law
ity with all nations. of the local state. But this possibility cannot be completely
Representing the minority view in this matter is the ruled out in view especially of the lack of care that may
attend the enactment of statutes by national legislatures
doctrine of tran${ormatt'on1 which holds that the generally
and the deliberately hostile policies that may inspire
accepted rules of international l.aw are not per se binding
them, particularly in ultra-nationalistic countries. Hence,
upon the s tate but must first be embodied in legislation
it is important to consider the criteria to be applied in
enacted by the lawmaking body and so transformed into
re~olving conflicts between international law and munici-
municipal law. Only when so transformed will they be-
pal law as developed by the practice of states.
come bin~ing upon the state as part of its municipal law.
."
In Kl!_rcx!a u. Jqlaruloni,, t°t the Supreme Court de-
•' The l.ffl'ifilt.ule would be to attempt to reconcile the
apparent contradiction and thereby give effect, if possi-
r.J ~r.P.d as follows:
ble, to both systems of law. For this' purpose, it should
Petitioner argues that r espondent Military Commission be presumed that municipal law is always enacted by
has no jurisdiction to try petitioner for acts com mitted in viola-
tion of the Hague Convention and the Geneva Convention be- each,~tate with d ue regard for and never in defiance of
cause the Philippines is not a signa tory to the first and signed the genera}J.t}..t fe~tee ~rinciples of intern~t~o~al law.
the second only in 1947. lt cannot be denied that the rules and The c::1se o~Jfi.fim·fl.r,.q:!T.:·V. Valdez .T an Keh1 1s illustra-
regulations of the Hague and Geneva Conventions form part of tive of.this principle. Here it was contended that Gen-
and are wholly based on the generally accepted principles of eral MacArthur's P roclamation of October 23, 1944,
international law. In fact, these rules and principles were ac-
cepted by the two belligerent nations, the United States and invalidated all judicial proceedings during the Japanese
Japan, who were signatories to the two Conventions. Such belliger.ent occupation of the Philippines because the
rules and principles, therefore, fo rm part of the law of our na- edict declared null and void "all laws, regula tions and
tion even if the Philippines was not a signatory to the conven- pr~cesses of any other government than that of the
tions embodying them, for our Constit ution has been deliber-
ately general and extensive in its s cope and is not r.onfined to Commonwealth.'' IP H•jA~t.ing this Yiew. our Supr':'mP.
the recognition of rules and principles of international law as Cqw·t ·explained:
containP.d in treaties to whi~h our go·:ernme nt m&.V l1iive been
or shall be a signat0ry Ta.king into consideration the fact that according to a
w~J!.-1"TJO""' pri.n.. ipl.P. of i.nternati<:>M l. l..fil w, i:i.ll judgments a nd
The above provision has expressly placed interna- judicial proceedings which are not of a political complexion of
tional law in the same category as the other components of .t he de facto government during the Japanese military re-
Philippine law, such as the Civil Code, the Insurance Act mained so after the occupied territory had come again into the
power of the titular sovereign, it should be presumed that it
and the Local Government Code. Normally, such a situa- A [was not and could not have been the intention of General
r MacArthur, in using the phrase 'processes of any other gov-
+
1 II
~·: 42 O.G. 4282. G.R. No. L-5, Sept. 17, 1945. ' ,
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I
ernment' in said proclamation, t,o refor to judicial proces"es, in might be tenable from Lhe national viewpoint, the arbitra-
f violation of said principle of international law. tor nevertheless held that "it is a settled principle of inter-
However, the solution cannot always be as simple as national law that a sovereign cannot be permitted to set
this, for where the conflict is actual and not merely appar- u p his own municipal law as a bar to a claim by a foreign
ent, there is no question that a categorical choice will have sovereign for a wrong done to the latter's subject."14
to be made. Take, for example, an amendment to the con- In fine, as Fenwick summarizes it, "international law f"
stitution of a state abolishing the right of property in ali- is binding upon the state as a corporate person, and nol
ens within its jurisdiction. Decrees of confiscation pursu- provision of the national constitution or act of the nationalI
ant to this provision could arguably be valid under mu- 1egislature or decree of the executive or judicial agencies!
nicipal law but they would at the same time raise serious can change the force of its provisions in so far as the legal\
international complications and provoke objections from !'elations of the state toward other states are concerned."15
the states adversely affected. Under these circumstances, By contrast, the attitude of national tribunals has
which system oflaw should prevail? been rather indecisive, to say the least. In the case of The
From the international viewpoint, the problem would Nereide,16 for instance, the Supreme Court of the United
not present much difficulty since international tribunals States held that "it was bound by th e law of nations,
follow the view that "to sustain or uphold the supremacy which is a part of the law of the land," but subsequently,
of municipal law over international law could lead to in- in The Over the Top, 11 the same court was to assert na-
ternational anarchy and lawlessness, each state discard- tional pride with the pronouncement that "international
ing and repudiating such parts of international law as are law is law only in so far as we adopt it and, like all com-
inconsistent with and inimical to its national interests, mon or statute law, it bends to the will of Congress."
ambitions and policies." 12 Accordingly, such tribunals have Nor is this judici:::tl inconsistency limited to one fo-
invariably supported international law as against opposed rum, for it also marks the policy of courts from different
principles of municipal law. even if closely related jurisdict.ions. To illustr:::1.te, i.t was
Thus, it was held in a dispute between Great Britain held by-Lord Mansfield in 1'riquet v. Bath 18 that, "the law of
~~J¥.~&...~~iiJL4l;rthat "there could be no question th~t na· nations, in its full extent," was part of the law of England.
tionaJ laws must yielrt to the law of nations if there was a Obvi9-i1sly unimpressed by the ruling, a Scottish court
conflict." 13 In another case, it was argued that. a legislative declared in upholding a municipal law: "In this court we
decree of Guatemala abrogating the concession of an have nothing to do with question of whether the legisla-
American national in that country was the constitutional
act of a sovereign state that could not be questioned by an
international tribunal. While declaring that the content.ion 14
United States (P.W. Shufeldt vdf. Guatemal a, Shufeldt
Claim, Dept. of Sta te Arb., Sec. 3, 851, 876-877 (1932)).
15
Fenwick, 89.
16
:
2
Le fondement due droit international, 16 Recueil des cow·s 9 Cranch 388 (1815).
17
(1927), 2-3. 5 F 2d 838 (D. Conn. 1125).
18
·~Hackworth, 34. Fenwick, Cases, 31.

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10 JNTERNATIONAI, LAW GF.~lEJ"l;\L PRJN8IPLJ£S 1l

ture has or has not done what foreign powers may con- In the case of Ichong u. Hernandez,21 the Retail Trade
sider a usurpation in a question with them. Neither are Nationalization Law was challenged on the ground inter
I'! c,lia that it violated the Treaty of Amity between the
I11,
I'
we a tribunal sitting to decide whether a n act of the legis-
lature is ultra uires as in contravention of generally ac- Philippines and China, the United Nations Charter and
19
cepted principles of international law." And so the con- thP- Universal Declara tion 0f H 1Jman :Rights. The Supreme
flict goes, and the solution is not yet in sight. Court., afw.r rejecting this assertion, made the followir1g
significant remarks:
Constitution v. 'freaty
But even assuming that the law infringes upon the said
Similar·observations may be made in connection with treaty, the treaty is always subject to qualification or amend-
cases involving conflicts between the constitution of a ment by a subsequent law, and the same may never curtail or
restrict the scope of the police power of the State.
state and a treaty duly entered into by it with other states.
Generally, the treaty is rejected in the local forum but is _ . Equallt notew?rthy is the case of ;9?.nzqJ~"f;}!:
upheld by international tribunals as a demandable obliga- Hc.c.hangua, where 1t was shown that the President of the
tion of the signatories under the maxim pacta sant ser- Philippines had by executive agreements contracted for
iiii.niki:.
<!!-~~··...-•.-.·.
On the. one hand, it is provided in the Declaration
. the importation of rice from Burma and Vietnam without
A{(~e::E~ghts arid Duties of States, adopted by the Interna- first securing from the National Economic Council the
tional Law Commission on June 9, 1949, that "every State certif\caf".ion required by law that t.bere was a short.age of
h as the duty to carry out in good faith its obligations aris- the said cereal in the Philippines at the time. Notwith
ing from t reaties or other sources of international law, and &tanding that in international law treaties and executive
it may not invoke provisions in its constitution or its laws agreements are equally binding commitments of the con-
as an excuse for failure to perform this d uty." On the other tracting states, our Supreme Court held in part:
- hand, most constitutions contain provisions empowering
the judiciary to annul treaties a nd the legislature to su- Although the President may, under the American consti-
persede them with statutes, thereby establishing the pri- tutional system, enter into executive agreements without pre-
vious legislative authority, he may not, by executive agree-
macy of the local law over the international agreement. ments, enter into a transaction which is prohibited by sta tutes
The positiot1 of the Philippi11es regarding this matter enacted prior thereto. He may not defeat legislative enact-
is clear enough. There can be no doubt as to the meaning rp_ents by indirectly repealing the same through an executive
of our Constitution when it authorizes the Supreme Court a greement providing for the very act prohibited by said laws.
As regards the question ofwhethe1· an international agreement
to decide, among others, all cases involving the constitu- may be invalidated by the courts, $Uffice it to say t.ha.t the Con-
tionality of "any treaty, international or executive agree- stitution authorize.!? the n ull.ification of a treaty not only when
ment, law... "20 it conflicts. with the Constitution but also when it runs counter
to an act of Congress.

111
Mortensen v. Peters, Fenwick, Cases, 25 ..
'" Art. VIII, Sec. 5 (2).
11

22
G.R. No.'L-7995, May 31, 1957.
G.R. ~o: L-21897, Oct . 22, 1963.
.
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12 It-.i'ERNA'l'IONAL L>.W GEJ\'ER.AL PRIKCIPLES J.8

Basis of International Law thought, a more "positive" identification with or acknowl-


edgment of the law is necessary to make it binding on the
As previously observed, international law does not ~tates it purports to govern, so that any state withholding
emanate from a supreme lawmaking authority for the its consent can disclaim any responsibility of observance.
regulation of those subject to its control but is, on the con- Snch consent, it is asserted, is expressed in the case of
trary, voluntarily observed by an international community conventional law, implied in the case of customary law,
which does not recognize any political superior among its ·~n.cl presumed in the case of the general principles oflaw.2~
members. In view of this, it is pertinent to inquire into its The compromise position is taken by the Eclectics or
basis and to determine why it is recognized and obeyed as tl1-ei}rotians, the most famous of whom were Eme1ich de
a rule of action by the family of nations. What is it, in }'ii.t~l:and Christian Wolff, who offer both the law of na-
other words, that gives binding force to international law?
, ture and the consent of states as the basis of international
According to the n'al u.'ralist school' of thought, the ;law. This theory adheres more closely to the ideas of
foremost exponent of which was Samuel Pufendorf, the Grotius, "the father of international law," to the effect that
basis of international law is the law of nature. This is de- th~ system of international law is based on "the dictate of
scribed as a "higher law" or "a rule of human conduct in- right reason" as well as "the practice of states." Briefly, it
dependent of positive enactment and even of special divine 19 asserted that "in so far as it conformed to the dictates of
revelation, and binding always and everywhere in view of right reason, the voluntary law might be said to blend
its intrinsic reasonableness."23 Under this theory, there is with the natural law and be indeed the expression of it.
a "natural and universal principle of 1ight and wrong, Sh0uld there be a conflict between the two, the law of na~
independent of any mutual intercourse or compact," which tµre was to prevail as being the fundamental law, the
is supposed to be discovered and recognized by every indi- authority of which could not be contravened hy the prac-
vidual through the use of his reason and his conscience. tfoe of states.',25
The consequence is that, since individuals compose the
The influence of these schools of thought is describ~d
state, whose will is but the result of the collective will of its
by Ri~hop ::I!': follmv.":
inhabitants, the state itself also becomes bound by the law
of vature. lnternationa.l law ~s thus viewed is therefore Frcm the time of Vattel and his contemporanes, until
not H hrn,• /:,qt,ween l)nt al:>oue ~ti:1tB~. the World War, the Positivist writers gained steady ascen-
dancy; since then there has been some slight swing towards a
Opposed to this theory is that advocated by the Posi- revived natural law among theorists and writers on interna-
tivists, led by Richard Zouche, who contend that the bind- tional law, b•lt apparently this has had little effect on actual
ing force of international law is derived from the agreement internatJonl:11 le!!al p:ractice. Those v:ho as judges and st?Jes-
of sovereign states to be bound by it. It is not a law of sub- nian make and apply international law are inclined to talk
ordination but of coordination. Under this school of primarily, if not solely, in Positivist terms; but a theoretically

23
Pollock, Sources of International Law, 2 Col. L. Rev. 511-519. 21
Vattel, Droit des Gens, cited in Bishop, 20.
l Bishop, 11. · ' 15 I '
.F:enwick, 51-52.

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I. { l!\"TF.RNAT!ON'AL T,AW GENERA.I, PltlNCIPLES 1f>

satisfactoty e::planation of international La N in op~rafrm may


1
reflection of the age-old desire of men and peoples fi.>T in-
26
demand some reliance upon ideas of natural law ternational order in lieu of anarchy and lawlessness
Sanctions of International Law which, during many periods of history, have characterized
the relations of states.
Assuming that international law is binding upon the (j) But regardless of the intrinsic merits of the rules of
international community, what is it that compels obedi- international law, they may still be observed by states
ence to its precepts? For, indeed, the fact that a law is because of the normal habits of obediePce ingrained in the
binding does not necessarily ~ean it will be observed, nature of man as a social being. These habits persuade
especially in the absence of some coercive influence to individuals, and ultimately states, to follow, almost auto-
dictate obedience. It should be remembered that, unlike matically at times, certain norms of conduct imposed for
municipal law, which generally prescribes specific meth- their observan.ce.
ods for its enforcement, international law· is not provided (.~) No less effective is the respect for world opinion held
with "teeth," as it were, to ensure a more respectful regard by most states, or their desire to project an agreeable pub
for its principles.2 ' lie image in order to maintain the goodv,•i.11 and favorable
Despite the serious handicaps of the law of nations in regard of the rest of the family of nations. This sanction is
its present stage, there are a number of factors that more the motivation for the propaganda campaigns now being
or less induce observance of its more generally accepted waged by the leading powers in their effort to win the
precepts. These, sanctions, as they are called, have been sympathy and support of the other countries for their re-
described as ~'the compulsive force of reciprocal advantage spective ideologies.
and fear of retaliation."28 According to the fl.iji;t(i
_,,. .•..,.~·,~;, ;;~~-~:·, ..r.w. ......... ........... . . . '. ;2,9 ".
Atlantic
. (!}) A fourth sanction is the constant and reasonable fear,
/ ~Mfi.e's.~'A.rbltfi:itfifti:~ they may consist of "appeal to pub- present even in the most powerful of states, that violations
I lie opinion, publication of correspondence, censure by Par-
of international law might visit upon the culpdt the re-
~ ' liamentary vote, demand for arbitration with the odium taliation of other states. The force of this influence was
attendant on a refusal to arbitrate, rupture of relations, dramatically illustrated in 1962 when the Soviet Union
,~ rep1;sal, etc." made a diplomatic and physical retreat in the face of a
(y Easily one of the most effective if the least obtrus,ve determined quarantine established by the United States
of these sanctions is the belief shared by many states in against shipments ()f rr1issiles and oth~r munitions to
the inherent reasonableness of internationa.l law and in Cuba.
tb~ir i:-ommon i::onviction that its observance will redound (§'1 Fina.Uy, hut. not. the lea.st signifiC'ant, thf.re t!': thP. ma-
to the welfare of the whole society of nations. This is a chinery of the United Nations which, within the sphere of
its limited powers, has on many occasions proved to be an
26
P. 22. effective deterrent to international disputes caused by
2
' Pp. 59-60. · . ~isregard of the law of nations. The moral influence of this
20
Philip M. Brown, Int_emational Realities, (1917) 21. ,: .~ 9rganization, coupled with its power to employ p~ysical
2
• Scott, Hague Court Reports (196), 141, 167. , ; l
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16 INTERNATIONAL LAW G~;~,El\;\l. PFm,cirLES 17
l.'l
,J force whenever wan-anted, has aborted or resolved not a ated by agreement of the pr,rties affected for the settle
1
:1111 , fe-w international disagreements that otherwi8'? migl,t ment of their dispute.
have assumed more serious proportions. In lieu of such remedies, or sometimes before they are
availed of, the quarreling states may attempt to settle
Enforcement of International Law their differences between themselves, either through ami-
If we follow the Austinian concept that a rule of ac- cable _methods such as diplomatic talks or hostile meas-
tion can be considered law only if it is prescribed by a po- ures like. retorsions and reprisals. Where these fail, war
litical superior with power to punish violators, then inter- itself may be waged as a last resort. In such an event, the
national law ·cannot be regarded as true law. However, laws governing the conduct of the hostilities, as well as the
considering the more acceptable view that there are many laws of neutrality, are enforced mainly through physical
norms of conduct that society may volµnta11.ly adopt and force by the belligerents and the neutral states. Violations
obey although no specific penalty is imposed for non- of these laws may also be punished after the war through
observance, international law may be said to possess the such measures as the prosecution of war criminals and the
qualities of true law. collection of reparations.
This being so, it is important to ascertain the various The United Nations demonstrated its capacity to con-
methods by which international law may be enforced in tain aggression in the '(}~lf War of 1991. when Iraq was
the family of nations. But first, distinction should be made forced to withdraw from Kuwait in the face of a deter-
between observance and enforcement. The former is es- mined military action taken by the world organization.
sentially subjective and mainly dependent on the volition And more recently, again by mandate of the United Na-
of the entity which is supposed to be governed by the law. tions, military units from the United States and other
Enforcement, on the other hand, is the process by which countries provided food and medicines to the starving
such observance may be compelled, usually by force or at people of Somalia, from whom relief goods sent by .c harita-
least the threat of force. ble organizations had been hijacked by the warlords of
,· that country fo1· their own use.
States are able to enforce intemational law among
each other through international organizations or regional Internally, the rules of international law may be
groups such as the United Nations and the Organization treated by the indivirl.ual states as part of their municipal
·i11: of American States. Grievances of the disagreeing states law. The legislature may implement such rules by pre-
11 may be present.ed to and di.scussed in these hodies, which scribing the norms for tl-ieir obse• var1ce and providing
,I:
mPy there;.=i ft.er adopt ~·1ch n,easures a!, rn:3.y be neces<:.ary gpP.dfi.c p~naltie.s for t.heir v1olati011, a~ when jt 113.ys do-~~n
f to compel compliance with international obligations or the ?erial fo1bilities for genocide or for an attack against a
vindicate the wro!lg committed. At present, this function is diplomatic representative. The executive participates by
usually exe1·cised by the United Nations through the Secu- enforcing such laws. The judiciary, for its part, can play an
rity Council and the International Court of ,Justice, lnde- important role in this regard by applying· the rules of in-
penckntly of these, specinl arbitnd tribunals may be c!·e- ternational law ex proprio vigore in proper cases or ~h"e .
. 1 ;
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18 INTERNATIONAL LAW GENE:HAL Pm::,;icrrLES rn

appropriate statutory enactments intended to implement International diplomacy relates to the OQjects of na-
them. tional or international policy and the conduct of foreign
affairs or international relations. Satow defines it as "the
Functions of International Law application of intelligence and tact to the conduct of official
The primary function of international law is to estab- relations between independent states "30 In this connec-
lish peace and order in the community of nations and to tion, reference may be made to thejus feciale, or the law of
prevent the employment of fore~, including war, in all negotiations and diplomacy which determined the duties
international relations. But as it seeks not an uneasy of the Fecial College of the old Roman Republic. This body
truce but a lasting accord based on a genuine spirit of gave effect to formal declarations of war, rendered advice
, ,, international harmony, it strives as well to promote world on questions respecting war and peace, acted as heralds
·~;.: friendship by leveling the barriers, as of color or creed, and ambassadors, and received and entertained the en-
that have so far obstructed the fostering of a closer under- voys of foreign states.31
standing in the family of nations. For its third purpose, i[.(riJ~rnational administrative law is defined as "that
international law endeavors to encourage and ensure body of laws and regulations, now highly developed, cre-
greater international cooperation in the solution of certain ated by the action of international conferences or commis-
common problems of a political, economic, cultural or hu- sions which regulate the relations and activities of na-
manitarian character. Finally, international law also aims tional and international agencies with respect to those
;- , to provid~ for the orderly management of the relations of mate1ial and intellectual interests which have received an
VUstates on the basis of the substantive rules they have authoritative universal recognition."32 Among such inter-
agreed t.o oh.c;;:P.rvP. ::is mP.mhP.rs of thA intemationaJ com- ests are int3rnational communications, protection of liter-
munity. ary and artistic rights, prevention of crime, and the pro-
motion of health and education.
Di~t.in~t.ion~ wit.h Ot.hP.t· Con~P.pt.~
.· Present State of International La,v
International law is also to be d.istirnruished from
other closely related concepts. Many of the r11les of internationB.l law lire root.€d ifl
,ffi_t,~r.@.tional morality or ethics embodies those prin- tradition, but not a few of them have yielded to new prin-
ciples which govern the r~lations of states from the higher ciples brought about by modern developments in interna-
standpoint of con.c::cience. more.lity, justice and hurna11ity. tional relations, such as the receding distinctions between
In this sense, it is similar to the law of nature. It may also combatants and non-combatants, the growing claims over
be likened to ffiiernational comity, which refers to those the maritime domain of states, the general disapprobation
rules of courtesy observed by states in their mutual rela-
tions, in that violations of its precepts are not regarded as
30
constituting groundsJor legal claims. '!'
I, Diplomatic Practice, 1.
31
Davis, Elements ofinternational La\v, 5-6 .
.j: , 2
, Cf. Hershey, 5 .
}
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• ::Yt ...
9.0 INTERNATIONAL LAW

of intervention, the outlawry of war, and the expansion of Chapter 2


the horizons of man into the realm of outer space.
Unfortunately, advances in science have brought the SOURCES OF INTERNATIONAL LAW
peoples of the world closer together only in a physical
sense, and conflicting interests and ideologies continue to CONFORMABLY TO ARTICLE 387 of the Statute of the
retard the growth of a universal rule oflaw based on peace International Court of.Justice, the sources of international
and jvstic8. TnternationFII law thus remains in a state of law may be generally classified as primary or secondary.
transition as mankind struggles toward the millennium of The primary or direct sources arc treaties or conventions,
harmony and order. customs, and the general p1;nciplcs of law. The secondary
or indirect sources are the dei::isions 0f i::0urts and the
writings of publicists.
The said article provides as follows:

1. The Court, whose function is to decide in accordance


with international law such disputes as arc submitted to it,
-Rha U apply:
a. international conventions, whether general or
particular, establishing rules expressly recognized by the
contesting state;
b. international custom, as e"idence of a general
pt'actice a.ccepted as law;
c. the general pr!.nciples of law t'ecognized by civi-
lized nations;
d. s1JbjP.ct to the provisions of Article 5!:I, judicial
tho. mni::t. J.iigh]y '}'.'"'1.ifie<'I
ciP.('il'lhn!:: o:irJ.rJ tl,P h'\flrhing" 'lf
publicists of the various nations, as subsidiary means for
the determination of rules oflaw.
2. This prohibition shall not prejudice the power of the
Court to decide a case ex aequo et bono, if the parties agree
thereto.

Treaties
It is obvious that not every treaty can be considered a
direct source of international law as it is not always con-

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'2.'2 It.rrEm,A'TtONAL LAw SouncEs or INTEnNATIOI\'AL LAW 23

eluded by the great body of states. A bilateral treaty be- as binding by the mere fact of persistent usage over a long
tween the Philippines and Japan, for example, is binding period of time. An example is the practice of granting im-
only upon the signatories and cannot apply to the rest of munities to foreign heads of states or diplomats in the
the international community which had no participation territory of the local state pursuant to what has come to be
in its negotiation or adoption. Such a treaty, being limited known as the principle of exterritoriality. Many of the rules
in operation, is a .source only of what is called "particular on maritime warfare and international commerce origi-
international law:" nated in the practice of a single state or gToups of states,
However, even bilateral treaties may become primary becoming universal later with their acceptance by other
sources of international law, if they are of the same na- states ..The exercise of jurisdiction by states beyond their
ture, contain practically uniform provisions and are con- territories is also based mainly on international custom.
cluded by a substantial number of states, albeit sepa- Most of the customary rules of law have been ex-
rately. Examples are the l'_standard" extradition treaties press ly affirmed and embodied in treaties and conven-
which, while only bilateral, are notable for their growing tions, like the Hague Conventions of 1899 and 1907. Sig-
number and also the similarity of their stipulations. nificantly, these rules, by virtue of their force as interna-
The general rule, though, is that the treaty, to be con- tional customs and their express recognition as generally
sidered a direct source of international law, must be con- accepted principles of international law, bind even those
cluded by a sizable number of states and thus reflect the states which have not signed these conventions.
will or at least the consensus of the family of nations. The One defect of customary international law is the diffi-
treaty need not be entered into at the outset by a majority culty of determining when a practice can be considered to
of the states forming the international community. Even if have hardened into custom and thus acquired obligatory
originally agreed upon only by a few states, the treaty may character. Unlike conventional law, custom is not formally
become binding upon the whole world if it is intended to promulgated or "struck off' at a definite time. Another
lay down rules for observance by al1 and it is subsequently problem is its inability at times, owing t.o its slow process
signed or acceded to by other states which thereby submit of e,;oh1.tion1 to adjust to the swiftly moving developments
to its provisions. of the international society which it is supposed to regu-
Examples of these A~wmaking treaties," as they are late. Many of the customary laws of neutrality, for exam-
called, are the Peace of Westphalia of 1648, the Congress ple, like the ~ .oh·
les on blockade, have become outmoded
of Vienna of 1815, the Dedarar.ion of Paris of 1856, the because of their fail.urP. to keep pace with modern ad-
Geneva Red Cross Conv'=nti~n of 1864, and t.he llnited vances, particnlarlv in science, t.ransportation and com-
Nations Charter of 1945. munication.
1jlU Custom is distinguished from usage in that the latter,
Custom
11~: while also a long established way of doing things by states,
A custom is defined by Fenwick as a practice which is not coupled with the conviction that it is obligatory and
has grown up between states and has come to ?e accepted right. The example given by Oppenheim is the old mari-

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24 lmERNATIONt\L L.o.w

time ceremonials in the open sea which, although gener- Secondary Sources
ally observed before, were nevertheless not regarded a8 In considering t he decisions of courts as subsidiary
compulsory. sources of international law, Article 38 does not distin-
guish between those rendered by international tnbunals
General Principles of Law like the International Court of Justice and arbitration
While most writers regard treaties and customs as bodies and those promulgated only by national courts.
the only primary sources of international law, the Statute Both kinds of decisions are acceptable as long as they are
of the International Court of Justice has added a third, to a correct application and interpretation of the law of na-
wit, the general principles oflaw. , tions or, as Fenwick says, "undertake to establish the true
The general principles of law are mostly derived from rule of international law."
In Thirty Hogshead of Sugar v. Boyle,1 Chief Justice
the law of nature and are observed by the majority of
states because they are believed to be good and just. Their John Marshall of the U.S. Supreme Court declared that
inclusion as a direct source of international law in the "the de'!isio~s of the courts of every country, so far as they
aforementioned Article 36 has been interpreted as a rejec- are founded upon a law common to every country, will be
tion of the Positivist view that international law is binding received, not as authority, but with respect. The decisions
only when consented to by the family of nations. of the courts of every country show how the Law of Na-
tions, in the given case, is understood in that country, and
Although no international convention was necessary
will be ·~nsidered in adopting the rule which is to prevai1
to bring them into existence, the general principles of law
have nevertheless become universal in application because in this."
Th~&kroiti'nt-of stare decisis is not applicable in inter-
of the unilateral decision of a considerable number of
states to adopt and observe them in recognition of their
national ra~:"'r-~t";o the decision of a court in one case will
have only persuasive value in the decision of a subse(luent
intrinsic merit. The Roman Law, for example, incorpo-
case. According to Article 59 of the Statute of the Interna-
rated therein many of these principles, and numerous . -, of Justice, "The decision of the Court has no
'tional Co\lrt
other municipal laws hewing closely to Roman Law have
bindi.ng force except between the parties and in respect to
followed suit, thereby making the rules common through-
out virtually the whole civilized world. It is in this manner ths:it particular case."
'Th~ ~~cond eubsidiary source of interr,ational law,
.that such concepts as prescription, estoppel, pacta sunt
seruanda., consent, and res judicl],ta havP, acquired the
viz., the writings of publicists, must also be, to qua1ify as
such, a fair and unbiased representation of international
status of general principles of law binding as ~uch on the
law, and by an acknowledged authority in the field. Mere
entire international community.
credentials are obviously not enough as the jurist may
It is not easy to identify the general principle of law have been motivated by national pride or interest, or _error,
since it is based on reason and conscience, which are
thought by the critics of the Naturalist School to be unre- '
~I .r
liable and ambiguous standards of international conduct.
. ' 9 Cranch 191, 198. q~
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26 UlTERNATIONAL LAw
llijl1

1i 1:, in il"lterpreting a rule of internat.ior1al law or in supposing


t the existence of a rn IP. ,vhich does not in fact form f.'?T t nf' Chapter 3
If
till
th'? l :1 w of n at.ions.
THE INTERNATIONAL CO!VIMUNITY
I
,11

THE INTERNATIONAL COMMUNITY may be described


as the body of juridical entities which are governed by the
law of nations. Under the modern concept, it is composed
not only of states but also of such other international per-
sons as the U nited Nations, the Vatican City, colonies and
dependencies, mandates and trust territories, interna-
tional administrative bodies, belligerent communities, and
even individuals. 'fhesP. are the gener?lly TP.Mgni?'.P.dl}ppj1i
mlgfJB!~wa.tional law.
l-:nhjP-ct. and Object Distinguished

A - - ~{of international law is an entity that has


rights and responsibilities under that law. It has an inter-
national personality in that it can directly assert rights
and be held directly responsible under the law of nations.
In other words, it has the faculty of motivation. By this is
meant that it can be a proper party in transactions in-
volving the application of the law of n ations among mem-
bers of the international community.
A subject of international law must be distingui~hed
from a mere objP.ct. An object of international law is the
person. or t:h.ing in rei:;pect 0f which rights a re held and
i obligations assumed by the subject. It is, therefore, not
I directly governed by the rules of international law. Its
I rights are received and its responsibiiities imposed indi-
.I'"• iI rectly, through the instrumentality of an intermediate
agency. -

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28 I NT.ERNAT!ONAL LAW
r
THi:; h •'fr.'R I\J.,·r1n\l"'' · CnMivTrn,rrY 29

Development of the International Community the Congo, 'I'angan)~.ka, J\ lgeria, Ug.imda and ot.hP.rs,
making the family of nations practically universal.
The Peace of Westphalia of 1648 signaled the begin-
ning of the modern international community as we under- States
s tand it today. Among the Christian states of Europe
which can be regarded as its charter members are Eng- From the viewpoint of international law, a state may
land, France, Spain, Portugal, the German Confederation, be defined as a group of people living together in a definite
Poland, and the Italian cities, together with Holland and territory under an independent government organized for
Switzerland, which last two were formally recognized as political ends and capable of entering into international
independent states by the agreement. Russia was admit- relations. As an international person, it may have full or
ted into the family of nations in 1721. The newly-born qualified status, depending upon th e degree of its control
American Republic followed in 1783. In the next century, over its external affairs.
many states in Central and South America increased the Some writers no longer recognize the distinction be-
membership. tween state and natwn, pointing out that these two terms
By the Treaty of Paris of 1856, the Ottoman Empire are now used in an identical sense. The appellations given
was admitted as the first non-Christian member of the to the defunct League of Nations and the United Nations,
~ and even the "family of nations," are cited in support of
"concert of Europe" and was soon joined by others like
Persia, Japan, China and Siam. The Balkan states had this view. Nevertheles5, a respectable r.umber of jurists
been previously recognized, and, after the first World War, still hold t.hat whereas the state is a legal concept, the
the Baltic states were also accepted. Next came such coun- nation is only a racial or ethnic concept. Hackworth, for
tries as India, Egypt and other Arabian states, which were example, observes that "the term 'nation,' strictly speak·
accorded either full or qualified status. The Papacy, its ing, as evidenced by its etymology (nasci, to be born), indi-
temporal power reduced with the annexation of Rome by cates a relation of birth or origin and implies a common
Italy, continued nevertheless to enjoy a special position in race, usually characterized by community of language and
the international society. customs."1
Many countries in Asia and Africa remained outside Thus understood, a nation may comprise several
the circle until after World War II when, as a result of the statBs·, such as Egypt, Iraq, Saudi Arabia, Lebanon, Jor·
growing movement toward self-determination, they were daP and others, ·which all belong to the Arab n:;\tion. On
also recognized as independent states. The Philippines the other hand, it is also possible for a state to be made up
w as allowed to participate in several international confer- of more than one nation, as in the case of the United
ences even before it became independent in 1946. Other States before the emergence of the amalgamated "American
Asian states likP. Indonesia, Laos, Cambodia, Malaysia nation," and of Singapore and Malaysia at present. Indeed,
and Burma ,vere r.reateo subsequently and had little diffi- a nation need not be a state a t all, a fact demonstrated by
culty in winning recognition. In Africa, withdrawa'l of
European control resulted in the birth and admission of
1
Hackworth, 47.
- i
,
.
.
. t~# 1: •
.. ....r. iAo.... . 1'
-:'.!.I- ...

-
30 frITERNA'J'IC1NN · LAW 'I'IIE TNTF.RN A.TTONAL CDMMU?HTY :=n

the Poles after the dismemberment of their country in (c) Government


1795 and, later, during World War II, or by the Italians
before the state ofitaly was created in 1870. Government is defined as the agency through which
:111
In any event, the state (or nation) should possess the the will of the state is formulated, expressed and realized.
f following elements in order to be regarded as an interna- It is necessary in international law because the state
tional person: (a) a permanent population; (b) a defined must have an entity to represent it in its relations with
territory; (c) government; and (d) sovereignty or independ- other states. The form of the government does not matter
ence. Two other addjtional elements suggested by some provid3d it ~s able to maintain order within the realm and
writers, to wi~, recognition by other states and possession comply with its responsibilities under the. law of nations. A
of a sufficient degree of civilization, have not yet met with group of arll'U''.'hiid:.c: nr ::i Rociety of pirates cannot qL1!:!.lify ~~
general acceptance. !'l ~tAtP..

(a) People (d) Sovereignty


Independence has been described as the external as-
People as an element of the state refers to the human
pect or manifestation of sovereignty, that is, the power of
beings living within its territory. They should be of both
the state to direct its own external affairs without inter-
sexes and sufficient in number to maintain and perpetuate
ference or dictation from other states. The degree of its
themselves. Kelsen observes that they are regarded as a
freedom in this regard determines the status of the state
unity. According to him, "Individnals of different races,
as an international person. It should be noted, however,
languages and religions very often actually fonn rmP. 'pP.o-
that while this freedom is to be desired, its excessive as-
ple,' that is to say, the peopl~ ,)f nnP. Rb=1tFl.'i2
sertion may clP.fP.at ~.t ti.me.~ the effedive operation of the
(b) Territory law of nations. AB Jessup observes, "Sovereignty is the
quicksand on which the foundations of international law
Territory is the fixed portion of the surface of the are built:"3
earth in which the people of the state reside. Nomadic
tribes and the so-callP-d "moving states" do not, therefore, Capaci t,y of States
possess this element. A defined territory is nec8Ssary for An enW.v possessed of the above-discussed elements
jurisdictional reasons and in order to provide for the needs is ordinarily r egarded as an international person entitled
of the inhabitants. Purely as a practical requirement, the to membership in the family of nations. However, this
territory should be big enough to be self-sufficient and consequence does not always or automatically follow. One
small enough to be easily administered and defended. reason, as will .be seen later, is that the recognition of
states is generally considered a political act which may not

...
i, -~' ;.
::..
i Kelsen, 227.
a J essup, 2 .i
'i, ti;
. · 1 ,.. ( t r
- -... t
I
i L
J1
TNTF.RNATlOHAL I , A'\t.,- 1'1-ll? TN'l'RRN, nnNAT. Cm,IMlllflTY ~~~
:~?.
1'111

be compelled. Another may be the rest ricted capacity of their external relations.
the state to discharge international obligations, owing
either to treaty commitments or to its limited resources. Independent States
This deficiency has barred the admission of certain states
Strictly speaking, sovereignty connotes freedom in
to international organizations. the direction by the state of its own internal and external
Switzerland, for example, is considered by many as affairs. H owever, international law is concerned only with
ineligible for membership in the United Nations because this freedom in so far as it relates to external affairs;
its permanent neutralization will· prevent it from partici- hence, a state which is not st1bject to dictation from others
pating in the .enforcement or preventive action that may i.n this res pect is known as an independent state.
be called by the Security Council. Liechstenstein's applica-
tion for membership in the old League of. Nations was ( ::\) Simple States
denied in 1920 because of its limit.ed size, small popula -
A simple state is one which is placed under a single
tion, lack of an army, geographical position, and deputa-
and centralized government exercising power over both its
tion to other states of some of the attributes of sovereignty,
internal and external affairs. Examples are the Philip-
a lthough it was admitted that "juridically the Principality
pines and the Netherlands.
of Liechstenstein is a sovereign state." Andorra, Monaco
and San Marino were also rejected on similar grounds. (b) Composite States
The United Nations h as a different at titude. Its policy
A composite state consist of two or more states, each
being to involve in the organization as many members of
with its own separate government but bound under a cen
the family of nations as possible, it has not hesitated to
tral authority exercising, to a greater or less degree, con-
accept applicants that would have been barred by the
trol over tb.§!ir ~xternal relations. The real union?@i~f
League of Nationi; because of their limit.ed resources or
fil~~~ili~e usually given as examples of composite
~::ipflhilities. Some examples are A11g0ls:1 :,inn G::ihon. 4
sta tes ·;vif-.h full international p~r.<~onality, as distinguished
Classification of States from the~.,ffl*:~ti.on~ which is regarded as an imperfect
int.ernationafperson. Of doubtful category is the personal
Sta.tes m.3y generally be classified into independent union, which will also be discussed below.
and dependent states, the former having full international
personality. L.u<i~i>:e.ndel.lV~~t.&.,.'are simple or composite, (1) Real Union
either of which may be neutralized.,,~~~P:9~nt.:'.s tates are A real union is created when two or more states are
usually exemplified by the protectorate and the s uzerainty merged u nder a unified authority so that they form a sin-
and are so called because they do not have fuil control of gle international person through which they act as one
entity. The states forming this union retain their separate
identities as such, but their respective international per-
t , • It has refused to recognize the Transkei, however, because"it
is said to be a product of South Africa's apa1theid policy. , ;
i1·
1~~
zi~
., ti 1
..
--$..
•ifl
.. ~
.
·'1 4'•
~
l~j

ffi[l11
l~llj 34 llITEPJ'JAT!ONi\L LA w TnE r" ·t:c::RNAr·10..1AL C0MM'JN1n
1
35

sonalities are extinguished and blended in the new inter- closely-knit federation.
national person, which, however, is not regarded as a state
in itse1f.5 Such a union existed between Norway and Swe- ( i) Personal Uni.on
den frorn J.81!-5 to 1905, between Austria :rnd Hungary from
1867 to HHS, and more recently between Egypt and S_yTia. A personal union comes into being when two or more
independent states are brought together under the rule of
illl (2) Federal Union the same monarch, who nevertheless does not become one
international person for the purpose of representing any or
A federal union, or federation, is a combination of two all of them. As in the case of Belgium and the former
or more sov~reign states which upon merger cease to be Congo Free State from 1885 to 1905~ each member re-
states, resulting in the creation of a new state with fu1l mains a state and an international person, although its
international personality to represent them-in their exter- externs.l policies are a:rected by the same ruler who dic-
nal relations as well as a certain degree of power over tates the foreign affairs of the other components of the
their domestic affairs and their inhabitants. An example is union. Strictly speaking, therefore, the personal union is
the United States. But it should be noted that there are not a composite state because no new international person
some federations which, conformably to municipal law, do is created to represent it in international relations. This is
not exercise full dir.ecti.on of ext.err1al r1.ffairs, s0me po,ver pro~a.bly the -r·P,ason why smr,e writers, like Mom·e, rliscuss
oYeI thjs matter being retained by the me111ber states. Of the personal union under the classification of simple
this type was the Geiman Empire under the Constitution of states.
5
1871.
(5) Incorporate Union
(3) Confederation
An incorporate union is a union of two or more states
A confederation is an organization of states which re- under a t::entral authority empowP.red to dirP,ct both their
tain their internal sovereignty and, to some degree, their external,. and internal affairs and possessed of a separate
external soverejgnty, while delegating to the collective international personality. It differs from a real union in
body power to represent them as a whole for cert~n lim- that only external affairs are placed under the control of
ited anrl specHied purpose,9-. To the extent that thP. ~onfo<l- the latter. An example of an incorporate union is the
eration itself and each of the member states are able to United Kingdom of Great Britain and Nmthem Ireland.~"
maintain international relations, they are all regarded as
so many international persons, albeit not full but only Neutralized States
imperfect. The German states were joined in a confedera-
An independent state, whether it be simple or com-
tion in 1866 until they eventually developed into a more
posite, may be neutralized through agreement with other
,;~ :l.
c ·f
• Bishop, i80. ·- ;· l
i;
6 . l ! .
Ibid. s. Paras ,33
• -,? ''-·

ii.
i

'•
{;
i~
n- "i
Tt ti ·It
36 INTERNATIONAL LAW THE 1N1'ERNAT!ONAL COMMU:'.'!ITY 37

states by virtue of which the latter will guarantee its in- Dependent states fall into two general categories, the
tegrity and independence provided it refrains from taking protectorate and the suzerainty. There is no unanimity as
any act that will involve it in war or other hostile activity to their basic distinctions, some writers even suggesting
except for defensive purposes. This is obviously desirable that they are identical. One view is that a protectorate
from the viewpoint of the neutralized state because it will always retains a greater measure of control over its ex-
remove itself from the vicissitudes of international politics ternal affairs than the suzerainty. But this opinion is re-
and all their attendant expense and anxiety. On the part je~ted by others who claim that the distinction between
of the guaranteeing states, their reasons may be humani the two is merely one of nomenclature, democratic states
tarian or political: compassion for a weak and small state, preferring the term "protectorate" to "suzerainty" and its
balance of power considerations, the necessity for a buffer suggestion of vassalage. It is also asserted that "in other
state to relieve inte1national friction, and the like. cases where the protectorate has enjoyed a degree of inde-
Switzerland was neutralized in 1815 and has man- pendence prior to the treaty, its status represents in the-
aged to maintain its status despite the many wars that ory a voluntary act of subordination to the protecting state
have engulfed Europe since the Congress of Vienna. Bel- by contrast with the concession of autonomy made by the
gium's neutralization was violated by Germany in HH4 suzerain state to the vassal state."'
and then again in 1939. Ls:tos w9i;: rn:mt.rnli?:P.<l in 1954 by Th~ T_T:r~H':"t:l "N~t.i~n~
l'lgrnP.mP.nt among fourteen states.
Although the United Nations is not a state or a su-
D~p'2'nr1P.1'1 t. ~t.:lt.P.s perstate but a mere organization of states, it is regarded
as an international person for certain purposes. Like
The term dependent state is a legal paradox because
states, although not to the same ~~tent, it enjoys certain
the status of statehood implies the idea of independence.
_privileges and immunities, such as !non-suability, inviola-
To say that an entity is a state is to acknowledge, without
O bility of its premises ana archives, and ·exemption from
more, that it is independent or that it is possessed of the
taxation. It has the!l·n ght of legation, i.e., it can send and
indispensable attribute of sovereignty. In light oftti:a:clb.
receive diplomatic agents, who possess the same rights
ffiI«iLdoctnne, therefore, the institution or the tlep~~a~-;;i'
accorded regular envoys. According t0 thP. International
state presents a curious anomaly.
Court of Justi,:;e. the Unit~d Nations c1:1n assert a. diplo-
Nevertheless, the phrase has gained wide cuITency
matic claim on behalf of its officials/ and treaties may also
among \~·ri.tP-rF: on international law. The reason is the
be concluded by it through the General Assembly, the
preseP.i::e of a number of entities which, although corn~
Security Council, and the Economic and Social Council. In
monly recognized as states, are subject to the control of addition, trust ten-itories are supposed to be under the
other states in the direction of their external affairs. These
residual sovereignty of the United Nations. It can even
entities are denominated, for want of a better term, as
semi-sovereign or;(qependent states.
- -t :t - 7
Fenwick, 170.
~li & Bernadotte Cas(!, 1949 I. C.J. Rep. 174.
ii
it~1. ;. .. ·,
.,.;:
.....
..
; r,
"'

11'.'TERNATIONAL T.t.w T i.tR TN•f'J;:QN,vl·t()l\il11 (~nMI\Arl~H·l"J qQ


38

wage war, in a sense, n,~ough the P.xerdse of its po,ver to tory for the purpose of a new state being established on it. This
undertake enforcement ar.t.ion in case of thn~P.t t,_, 0T' territory does not exceed one hundred acres; nevertheless, it is
9 the territory of a state. Its population does not reach seven
breach of international peace. hundred and is composed almost exclusively of individuals re·
siding therein by virtue of their office. Nevertheless, it is the
ThA v~t.ir.:::.n City population of a state. Since the Pope is the grwer•imi>nt, all thP
elements of a state in the sense of intArm1t.ionRl IRw Rm prP.!':P.nt.. ' 0
The influence of the Pope dwindled with the decline
of the Holy Roman Empire and the rise of the spirit of Colonies and Dependencies
nationalism. The Reformation contributed further to the
waning prestige of the. Church as a world leader not only From the viewpoint of international law, a colony or a
in spiritual but also temporal affairs. With the annexation dependency is part and parcel of the parent state, through
of the Papal States by Italy in 1870, the position of the which all its external relations are transacted with other
Holy See as an international person became anomalous. In .states. As such, therefore, it has no legal standing in the
1928, Italy and the Vatican concluded the Lateran Treaty family of nations. Nevertheless, such entities have been
"for the purpose of assuring to the Holy See absolute and allowed on occasion to participate in their own right in
visible independence and of guaranteeing to it absolute international undertakings and granted practically the
and indisputable sovereignty in the field of international status of a sovereign state. It is when acting in this capac-
relations." ity that colonies and dependencies are considered interna-
Although Italy has by this treaty recognized "the tional persons.
State of the Vatican under the sovereignty of the Supreme While still a colony of Great Britain, India was al-
Pontiff," doubt is expressed by jurists as to its real status lowed qualified membership in the League of Nations,
in view of its small territory and population and the ap- signed the Treaty of Versailles and became a charter
parent impairment of its independence by reason of its member of the United Nations. The Philippines was a
proximity to Italy, not to m~ntion the fact that its govern- signatory of the Universal Postal Union Convention in
ment is organized more for ecclesiastical than for political 1906, the Inte1·national Sugar Agreement in 1937, and the
purposes. Nonetheless, it cannot be denied that the Vati- OP.claration by United N ati.ons in 194?, Jater bi=lcoming ()Ile
can City e.,"'{ercises cerlain prerogatives of states, such as of the original members of the United Nations in 1945. AH
the treaty-making power and the right of diplomatic inter- these took place before it became independent in 1946.
course. Moreover, as Kelsen observes- In view of the rise of nationalism and self:detenni-
nation, however, the number of colonies has substantially
In this (Lateran) treaty, Italy 'recognizes the full owner-
ship, exclusive dominion, and sovereign authority and jurisdic-
declined.
tion of the Holy See over the Vatican,' i.e., a certain terl'itory
within Rome. That means that Italy gave up a part of its terri-

9
U.N. Charter, Art. 42. °Kelsen, 160.
1

11 \
iTI ...
·
,,!!
l i ~ aL.
.·,p ,· l
l 'it! - ~ :
INTF.RNATIONAL LAW
40 Tm~ frl'l'ERNA'flOJ\TAl. (:()11,11\,fr'l\ll'T•Y
41

l.V[andates and Tr,H::t TP.l''1' itodP.s 0

tain recognition as an independent state, as has alrearl.y h:'lp-


pened in the ca:=te of' some of the mandates. sovereignty will ,..,_
The system of mandates was established after the vive and vest in t.h~ ""'"" ~t~te. ·•
first World War in order to avoid outright annexation of
the underdeveloped territories taken from the defeated Practically all trust territories have since achieved
powers and to place their administration under some indepP-ndence, among them Rwanda and Burundi, and
form of international supervision. Its basic principles have been admitted to the United Nations.
have been retained in the more. comprehensive trustee- Belligerent Communities
ship system devised by the United Nations Charter.
~\"<: . \ ..•... ~~ •. )i,•:~•
. '· .'··': •·A\i·•(:1i ..·• •,"~. ;., •., •
1milit~inds
w.,;;u.. .. of t-.rn~Cff.imfon fis.iare. provided for' viz.: When a portion of the population 1ises up in arms
(a) those held under mandate under the l-,eague of Na- against the legitimate government of the state, the up-
tions; (b) those territories detached from the defeated heaval is ordinarily regarded as a merely internal affair,
states after World War II; and (c) those voluntarily placed at least during its initial stages. The state is held interna-
under the system by the states responsible for their ad- tionally responsible for all injuries caused upon third
ministration. 11 The terms of trusteeship are agreed upon states by reason of the disorder, and the members of the
by the administering authority with the Security Council, uprising are in turn held accountable for their acts under
in the case of strategic areas, and with the General As- the laws of the legitimate government.
12
sembly, in the case of non-strategic areas. But when the conflict widens and aggravates, it may
These territories enjoy certain rights directly avail- becl)me necessary to accord the rebels recognition of bel-
able to them under tbe United Nations Charter that ligerency. By this the recognizing state, "while not confer-
vest them with a degree of international personality. ring all the rights of an independent state, concedes to the
They are, however, not sovereign. Relative t,:i thi~ mat- government recognized the rights, and imposes upon it
t.P.r, ,l 11 rl gP- McN air has the following to say: the obligations, of an independent state in matters relat-
ing to the war being waged."14 Thus, for purposes of the
Upon sovereignty a very few words will suffice. The
Mandates System (and the corresponding principles of the In- conflict, and pending deter:mination of whether or not the
ternational Trusteeship System) ie a new institution-a spe· belligernnt comm•mHy should be fully rec0gnized as a
cial r~!pJi(l"!',h;r j,,ol-u,,>pr, tP.':r°r\t.(\ry flflrl. ;l'lh"\hit,.Anl;S ".\{I fl1<> "1'~ state, it is t.reat.~d as an intermit.ional person and becomes
hand and the government which represents them internation- directly subject to the laws of war and neutrality. As such
ally on the other-a new species of international government,
which does not fit into the old conception of sovereignty and {f6'~h~ativfstate," it is vested with full rights of visitation,
which is alien to it. The doctrine of sovereignty has no applica- search and seizure of contraband articles on the high seas,
tion to this new system. Sovereignty over a Mandate Territory blockade and the like, and is held directly responsible for
is in abeyance; if and when the inhabitants of the tenitory ob- its unlawful acts.

~ ·f ~
11

12
U.N. Charter, Art. 77.
"I. C.J. Advisory Opinions, July 11, 1950. , p* f
Ibid., Arts. 83, 85. ~-' 1
• The Three Friends, 166 U.S. 1. ,. f
,· i
... : J! ! l il
I::-,'I'FPN/,,f'l(lNAT. LAW lt,TF.RNATl()i~AL (;oMMTTNTT'i
42 Tl-11.
13

Intc1~national Administrative Bodies it is his state whose right-i.e., the right to have its na-
tionals respected by other states-has been violated.
Certain administrative bodies created by agree- Hence, it is the state of the individual, and not the indi-
ment among states may be vested with international vidual himself, that can be a proper party in the assertion
personality when two conditions concur, to wit, that of a claim for damages.
[j thejr;_purposes are mainly non-political and that they
Of late, however, the view has grown among many
ariautonomous, i.e., not subject to the control of any
writers that the individual is not merely an object but a
state. Among these may be mentio11ed the International
subject of international law. One argument is that the
Labor Organization, the Food and Agriculture Organi-
individual is the basic unit of society, national and inter-
zation, the World Health Organization, and the Interna-
national, and must, therefore, ultimately be governed by
tional Monetary Fund, which may enter into agree-
the law of this society, including those that are theoreti-
ments with the United Nations, through the Economic
cally binding on states as agents of the individual. Moreo-
and Social Council, subject to approval by the General
tI Assembly. Other notable examples are the European
ver, many precepts of the law of nations are directly appli-
cable to or for the benefit of the individual, sometimes
ij Commission of the Danube and the Central Commission
I
even independently of the state to which he may belong.
for the Navigation of the Rhine, which both exercise
Thus, it is pointed out that-
legislative, administrative and judicial powers directly
applicable to individuals. (1) The United Nations Charter "reaffirms faith in
Worthy of note in this connection are the extinct fundamental human rights, in the dignity and worth of
trading corporations like the Dutch West India Com- the human person, and in the equal rights of men and
pany and the British North Borneo Company, which women," and contains many provisions looking to the
11,1
promotion of these rights.
ij,, were vested with certain powers of sovereignty and en-
joyed for some time a qualified international personal- (2) The Universal Declaration of Human Rights, in
ity. Such corporations have ceased to be snbjei::ts of in- recognition of "the inherent dignity and of the equal and
ternational law, their unusual powers having been re inaliena9le rights of all members of the human family,"
voked by their respectiv~ gov'=rn.n,':"n~~ proclaims the basic individual rights which all nations are
called upon to foster.
Tn,H uirl1rn ls
(3) A number of treaties rlirnctly confer rigbts upon
Traditional concept regards the individual only as an in<lh,;n.ni:tlR and authori:;:e them to bring lawsuits ::i.gainst.
object of international law ,vho can act only through the states before national or international tribunals for re·
instrumentality of his own state in matters involving oth- dress of the private interest violated. Examples are the
ers states. If he is injured, for example, by reason of a Treaty of Versailles, the so-called minority treaties in fa-
wrong imputable to a foreign jurisdiction, he can secure vor of racial, religious and linguistic minorities, and the
redress only with the assistan,~ ·and representation of his German-Polish Convention Regarding Upper Silesia. · ; .
own state, and not otherwise. 'rp.e reason is that, in theory,
'!!·! '. ..
1t . .
.. j.
i

(

)
~
.i: ;
!
~
-
';,

~
.
~
~
....

·,_ ie-~
:

·.
·,
"f. ,,. • ·~
..,.

:- } ~ .
i.·
'
i
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!
1ft!I:
: ' ' '" ! )
!,
14 INrEP"-' An 0t,AL LAw

(4) Sta tes are obliged to maintain an international Chapter 1


standard of justice in connection with the treatmen t of
aliens within their jurisdiction, failing which they may be THE lTNITRn NATIONS
held liable in damages for the injury suffered by such for-
eigners .
(5) The Genocide Convention condemns the mass THE UNITED NATIONS emerged out of the travail of
extermination of national, racial or religious groups as a World War II as a symbol of man's undismayed determi-
crime under international law and makes the perpetra- nation to establish for all nations a rule of law that would
tors thereof, states as well as individuals, subject to forever banish the terrible arbitrament of war in the solu-
punishment. tion of international disputes. In the midst of the immeas-
(6) The Nuremberg and Tokyo war crimes trials at- urable tragedy and suffering caused by the greatest con-
tached direct responsibility to individuals for offenses flict ever inflicted upon humanity during its long and vio-
committed by them in violation of the law of nations, lent history, the new organization was hopefully envi-
whether it be on their own responsibility 01· on behalf of sioned as the a nswer to the universal yearning for peace
their states. and friendship among all peoples regardless of color or
(7) Pirates have been immemorially regarded as creed.
hostes humanis generis and are directly and individually The idea behind the United Nations was not a new
punishable for their acts by whichever state may have concept, for forward-looking statesmen and jurists through
them in custody. the ages have proposed and nurtured plans for some kind
(8) Certain laws of war and neutrality, such as the of world government to which national sovereignties
rules on carriage of contraband and breach of blockade, would be subject and under which all nations would work
procedure before prize courts, espionage, treatment of the together in pursuit of their common purposes. However, it
sick and wounded, and the rights of prisoners of war , di- was only after World War I that the first concrete step in
rectly affect the individuals themselves rather than the this direction was taken with the organization of the
states to w hich they belong. League of Nations. Unfortunately, certain inherent weak-
(9) The Hague Convention of 1930 lays down spe- ness of this body, coupled with the fact that the United
cific rules intended to prevent or minimize the anomalous States was not a member thereof, consider ably impaired
condition of statelessness. its effectiven ess in the maintenance of international peace,
(10) The Convention Relating t..o the St.a tus of which was finally shB.ttered in 1939. In 194'3, shortly after
Stateless Persons bestows cer.tain right.s in favor of indi- the war it had failed to preve11.t. the League of N::itionR waB
viduals who otherwise, for lack or loss of nationality, can- formally dissolved.
not invoke the assistance or protection of a ny state. Even while World War II was still raging~ the move-
(11) The doctrine of incorporation makes the law of ment toward a new international organization was steadily
nations part of ip.~picipal law, and, hence, directly appli- • r
cable to the individual inhabitants of the state. a ·~
45 t '

.:th- )it
~, , f.
T HE UNITED NA'l'l0 1'1:3 4.q
18 lN T'R~'N 4'l Tf"'\M .l.T.
1 1 f,A-./•/

2
There has thus come into existence a new intemational maintenance of international peace and security." Fur-
person, an organization unique in character, the objectives of thermore, it is provided in Article 103 that "in the event of
which are of such transcending character that ifit should func- a conflict between the obligations of the Members of the
tion with any degree of efficiency it may be expected to sup-
plant in due course the older and looser organization of the in-
United Nations under the present Charter and their obli-
ternational community. For the time being the two organiza- gations under any other international agreement, their
tions exist side by side. Rules of customary law will bind states obligations under the present Charter shall prevail.'.a
as members of the international community; and it will be to Amendments to the Charter shall come into force for
the law of the international community that appeal will be
made when controversies arise concerning the scope and effects all members of the United Nations wben they have been
of customary law. On the other hand, the Charter of the United adopted by a vote of two-thirds of the members of the Gen-
Nations contemplates that the General Assembly will initiate eral Assembly and ratified in accordance with their re-
studies and make recommendations for the purpos':! of pro· spective constitutional processes by two-thirds of the
mating the progres"ive development of international law ?nd
its codifieation. TI1e 1esult of this will be to bring into effect by members of the United Nations, including all the perma-
4
degrees a body of treaty law which will outmode the existing nent members of the Security Council.
customary law. When that happens, membership in the older A general conference may also be called by majority
community of nations will have lost its meaning.'
vote of the General Assembly and any nine members of
the Security Council for the purpose of reviewing the
The U.N. Charter
Charter. Amendments may be proposed by two-thlrds vote
The United Nations Charter is a lengthy document of the conference and shall take effect when ratified by
consisting of 111 articles besides the Preamble and the two-tlurds of the Members of the United Nations, includ-
5
concluding provisions. It also includes the Statute of the ing the permanent members of the Security Council.
International Court of Justice which is annexed to and
made an integral part of it. The Preamble to the Charter
In one sense, the Charter may be considered a treaty The Preamble introduces the Charter and sets the
because it derives its binding force from the agreement of common intentions that rnovP.d the original members to
the parties to it. In another sense, it may be regarded as a unite their will and efforts to achieve th':!ir ~0mmnn Pnr-
constitution in so far as it provides for the organization pases." Th':! Pr':.'f1.mhl0 rP.::irl~ :ois follmvs:
and operations of the different organs of the United Na-
tions and for the adoption of any change in its provisions
through a formal process of amendment.
It is significant that the Charter is intended to apply
not only to the members of the Organization but also to
1
U.N. Charter, Art. 2(6).
s Ibid., Art. 103.
non-member states "so far as may be necessary for the
'Ibid ., Art. 108.
5
lbid .. Art.. 109
5 UNC!O, Rep01t of Rapporteur of Comrnjtt ee 1 to Commission
' Eenwick, 183. 1, Doc. 944, 1/]}34(1), 1-2. '.- ~ :
i ~ ~ . n, .. t
>l t :ttin
.~1,
1 t
: ;f.~i.1l
! ;, .. . 't. • ·-

• "'of ; . -
r-
...

THE UwTED NATrm:s 51


rr-,·r·l<'.RNATIONAL LAIN
fi()

who have exhibited their full powers found to be in


WE THE PEOPLES good and due form, haue agreed to the present Charter
OF THE UNITED NATIONS of the United Nations and do hereby establish an in-
DETERMINED ternational 01-gr:111 i.-::-1Jtirm fn hP knn11111. n..~ thP. TlnitPft.
Nations.
to save succeeding generations from the scourge of
war, which twice in our lifetime has brought untold Purposes
sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the The Purposes constitute the raison d'etre of the
dignity and worth of the human person, in the equal United Nations and are "the aggregation of the common
rights of men and women and of nations large and ends," the cause and object of the Charter to which the
7
small, and to establish conditions under which justice member states collectively and severally subscribe.
and respect for the obligations arising from treaties They are expressed in Article 1 as follows:
and other sources of international law can be main- 1. To maintain international peace and secu
tained, and rity, and to that end: to take effective collective meas-
to promote social progress and bt>.ttP.r standards of' lifP. ures for the prevention and removal of threats to the
in larger freedom, peace, and for the suppression of acts of aggression or
other breaches of the peace, and to bring about by
AND FOR THESE ENDS peaceful means, and in conformity with the principles
to practice tolerance and live together in peace with of justice and international law, adjustment or settle-
one another as good neighbors, and ment of international disputes or situations which
to unite our strength to maintain international petJf.'P might lead to a breach of the peace;
and security, and 2. To develop friendly relations among nations
to ensure, by the acceptance of principles and the insti- based on respect for the principle of equal rights and
tution of methods that armed force shall not be used, self determination of peoples, and to take other appro-
sa11e in the common interest, and priate measures to strengthen universal peace;
to employ international machin£1)' for the promotion 3. To achieve intem(l.tional cooperation in solu-
of the economic and social advancement of all peoples, ing international problems of an economic, social, cul-
tural or humanitarian character, and in promoting
,, HAVE RESOLVED TO and encouraging respect for human rights and for
I COMBINE OUR EFFORTS TO fundamental freedoms for all without distinction as to
ACCOMPLISH THESE AIMS. race, sex, language, or religion; and
1\I .
Accordingly, our respective Governments, through rep-
~
•• 1
.. <
.

; l ~ -:
!
resentatives assembled in the City ~f_ $an Francisco, ... .
'Ibid.
: i;
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,- I
~
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·~

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i
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}
fi2 Itrr£RN/\TION/\L LAw THE UNITED NATIONS 53

4. To be a center for harmonizing the actions nf na- depends to a large extent on the vvillingness of the mem-
tir:,11 <: in the attainment of these common ends. ber-states to comply with the obligations they have as-
snm~d under the Charter.
Principles
3. All Members shall settle tht>ir international
The Principles, as enumerated in Article 2 of the
disput.eB by pear.efnl mP.ans in .such a manner that in-
Charter, deal with the methods and the regulating norms ternational peace and security, and justice, are not
according to which the United Nations and its members endangered.
shall discharge their obligations and endeavor to achieve
~
· their common ends.8 The seven cardinal principles are the
following.
This rule is itself a generally accepted principle of in-
ternational law. The more common amicable methods of
1. The Organization is based on the principle of
settling international disputes (which are discussed in
the sovereign equality ofall its Members. Chapter 17) include the active participation of, principally,
the International Court of J ustice and the Security Coun-
This rule _is itself based on one of the fundamental cil and sometimes even the General Assembly.
rights of states, viz., the right of equality. (See Chapter
9.) Under this principle, all members of the Organiza- 4. All Members shall refrain in their interna-
tion, regardless of their size or influence, have, for ex- tional relations from the threat or use of force
ample, the same vote in the General Assembly. Certain against the territorial integrity or political inde-
special rights over and above those of other members pendence of any state, or in any other manner in-
are, however, reserved to the so-called Big Five; on the consistent with the Purposes of the United Nations.
other hand , the smaller states are not subjer.te.d to the
same fin an~i ::i l , P..:pnMi hilities as the affluent members. This is the most important principle of the United
Nations. Previous international conventions, including
2. All Members, in order to ensure to all of them the Covenant of the League of Nations and the Kellogg-
the rights and benefits resulting from membership, Briana Pact, did not contain a provision like the above,
shall ful.fill in good fa.ith the obligations assumed b.1 1 which is a categorical outlawry of war and al l forms of
them in accordance with the p1'esent Charter. force as a method of settling differences among states.
This rule prohibits threat or force upon the territoria.l
TI1P. ba~is of this rule is}pac.tq,.1~unt
y,. _,,........ . servanda, which integrit.y or political independence of any member of the
calls for the observance of treaties iri good faith. As previ · United Nations, E!:1.V':' in in.:t.Rnc~R to be noted later.
ously observed, the United Nations Charter partakes of
the nature of a treaty. The importance of this principle 5. All Memhers shall giue the United Nations
cannot be minimized, as th.e;success of the Organization 1 ,..
·~. every, a~sistance in any action it takes in accordµ,nce..
;• ~

I !. ...
,-·t i: :
,. 4, ·
with the present Charter., and shall refrain from!gi;q-_
1, s .
s Ibid. I_, -
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it ~ :·
. :J
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-~J ,;~, ~ 'f ~\ :t· i
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54 INTERNATIONAL L\W
'I'1rn 0Nn rn N ,\Tro~;s 55

ing assistance to any state against which the United tions. Hence, a rebellion in a state ordinanly cannot come
Nations is taking preventive or enforcement action.
under the jurisdiction of the Organizal 1on. The exceptions
The efficacy of the United Nations will depend, of are where the internal conflict aggravates into a threat to
course, upon the cooperation extended to it by the mem- or an actual breach of international peace and security or
ber -states. Otherwise, the resolutions adopted and all where the parties voluntarily invoke and submit to the
other action agreed upon by the membership will be jurisdiction of the United Nations for the settlement of
l their dispute.
nothing but paper decisions and mere lip service to its
avowed objectives. To ensure their full implementation, In 1960, for exa mple, what started as a civil war in
there is a necessity for the unreserved involvement of the the Republic of the Congo became in fact an international
members in the activities of the Organization. war between t he socialist states and the Western dernoc·
racies. The United Nations sent a n expeditionaiy force
tlil 6. The Organization shall ensure that states that ultimately succeeded in restoring international peace
which are not Members of the United Nations act in and security.
accordance with these Principles so far as may be nec-
essary for the maintenance of international peace and Membership
security. There are two kinds of members in the United Na-
Treaties are usually binding only on the signatories tions: the original and the elective. The distinction be-
thereto. Under the above rule, however, even non- tween the two is based only on the manner of their ad-
members are covered by the obligations imposed by the mission and does not involve a ny difference in the en-
Charter for the maintenance of intP.rnational peace and joyment of rights or the discharge of obligations. Both
security. At least, the mP-mber-states are enjoined to SAP. to kinds of members are governed in the same degree by
it that thP. non-members comply wi t.h l'mch obligations. the Charter of the Organization.
The original or charter members are those states
7. Nothing contained in the pre,qent Charter which, having participated in the United Nations Confer-
shall autlwrize tM. United NatioM to intervene in ence on International Organization at San Francisco or
matters whi,eh are essentially within the dome:1,tir. ju- having previously signed the Declaration by the United
risdiction of any state or shall require the Members to Nai;ions of J anuary 1, 1942, signed and r~.tifiP.d the Char-
submit such matters to settlement under the present ter of the United Nations.q Interestingly, the Philippines,
Charter; but this principle shall not prejudice the ap - India, Lebanon and Syria were included as original mem-
1

~11
n~:· plication ofenforcement measures under Chapter VII. bers although they were not yet states at the time. The
Ukraine and Byelorussia were also considered separate
II 'This is commonly known as the "dcmest.icjurisdiction original members _notwithstanding that they formed part
lf1' clause." As long as the matter remains internal, the same
cannot be the subject of intervention by the United Na-
:. .... )
! U.N. Charter, Art. 3.
; ,
i I>-;: 1. ~ i i ' f
· r~~
.2 .. ,. ......
'? ,_ •
f
~ t.t
- ' t •.
1),rEP.~1.t•'f'l()NAL LAw THE UN[TED NA'I'I0!."~ 57
56

of the Union of Soviet Socialist Republics. All told, there barred from the League of Nations on the ground that
were fifty-one origina 1 members although one of them, they might not be able to comply with their responsibili-
Poland, was unable to participate in the drafting of the ties under the Covenant, this qualification has not been
strictly enforced.
Charter.
In addition to the original members, other members (5) It must be willing to carry out these obligations.
may be admitted to the United Nations by decision of the Also a subjective standard, this qualification was the basis
General Assembly upon the favorable recommendation of of the initial opposition to the application of Albania,
the Security Council. 10 To be eligible for admission, the which was charged with, among others, failure to agree to
11
applicant must possess the following qualifications: the referral of the Corfu Channel dispute to the Interna-
tional Court of Justice. The United States initially blocked
(1) It must be a state. Contrary to the policy of the
the admission of Vietnam because of its alleged refusal to
defunct League of Nations, the United Nations appears
release American prisoners of war.
to be in favor of the admission of even the so-called
"mini-states," like those "graduated" from trust territory Can the General Assembly admit an applicant for
to republic. Among such states are Bahrain, Bhutan, membership withQut the favorable recommendation of the
ii-.
Security Council? In holding that this c0t1ld not be rt()ne,
Qatar, and Oman.
the Internat.i0ri~l r.r111rt of ,Jn~t:ice declared as follows:
(2) It must be peace-loving. This is a subjective
standard that can lead to political rather than legal deci- The Court is called upon to determine solely whether the
sions, as evidenced by the delayed admission of Thailand General Assembly can make a decision to admit a State when
because of F rench opposition to it for its alleged invasion the Security Council has transmitted no recommendation to it.
of Inda-China and the Russian objection to the application Article 4, paragraph 2, is as foll ows:
of Ireland on the ground that it did not help the Allied 'The admission of any such State to membership in
the United Nations will be effected by a decision of the
Powers during World War IL Ckneral Assembly upon the recommendation of the Secu-
(3) It mu.st accept the obligations of the Charter. Al- rity Council.'
though this r~quires only a formal declaration from the The Court has no doubt as to the meaning of this text. lt
applicant, it is subject to the fourth and fifth requirements requires two things to effect admission: a 'recommendatio.n' of
aR deterrninP.il. hy the Organization itself. the Security Council and a 'decision' of the General Assembly.
It is in the nature of things that the recommendation should
( 4) It must be able to carry out these obUgations. The come before the decisiov.. The word 'recommendation,' and the
view, for example, is that Switzerland, being a neutralized word 'upon' preceding it, imply the itJ.e<\ that t:he recommenda-
state, cannot carry out the obligation of preventive or en- tion is the foundation of the d':.'~i..-,10Tl. tc, arl.mit., ~mrl th'it tJ, ... l.R t.
forcement action that may be decreed by the Security ter rests upon the recommendation . Both these acts are indis-
pensable to form the judgment of the Organization to which
Council. With respect to small states, however, which were the previous paragraph of Article 4 refers. The text under con-
sideration means that the General Assembly can only decide to
... < ~ ···- t
admit upon the recommendation of the Security Council; it de-
10
Ibid.,~Arf. 4(2). ~ .. termines the respective rules of the twp ·organs whoee com-
11 • 1
Ibid., Art.
~
4(1):
.

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j f". ·.H ,t•;.i.
:!ttj~i
- -·\. ~
"~f : "''p .
58 l NTEJ;{NA'f'IONAL LAW

bined action is required before admission can be effected; in


THE Utmrw NATIONS

thirds of those present and voting in the General Assem-


~'-
other words, the recommendation of the Security Council is t he bly upon the recommendation of the Security Council by a
condition precedent to the decision of the Assembly by which
11 qualified majority vote. 1~ The aim is to provide for a
the admission is effected. •
stronger penalty than mere suspension against a member
Suspension of Members that "would have demonstrated that it did not satisfy the
A member of the United Nations against which pre- basic requirements of membership, and would be like a
ventive or enforcement action has been taken by the Secu- cancerous growth which it would be better to remove com-
rity Council may be s uspended from the exercise of its pletely than to allow to remain in thP. ho<ly of the Orirani-
rights and privileges. As in the case of admission, suspen- zation and persiRt in its influence:·"
sion is effected by two-thirds of those present and voting in
Withdr~w~l nfMr.mhP.r~
the General Assembly upon the favorable recommendation
of at least nine members of the Security Council, including No provision on withdrawal from membership was
all its permanent members. The suspension may be lifted included in the Charter because of the fear that it might
alone by the Security Council, also by a qualified majority encourage successive withdrawals that would weaken the
12
vote. Organization. Nevertheless, the San Francisco Conference
The s uspension of a member will prevent it from approved a special committee report which, while not
participating in the meetings of the General Assembly categorically permitting or prohibiting withdrawal, ex-
or from being elected to or continuing to serve in the pressed the view that a member might withdraw from the
Security Council, the Economic and Social Council or United Nations if: (a) the Organization was revealed to be
the Trusteeship Council. Nationals of the suspended unable to maintain peace or could do so only at the ex-
member may, however, continue serving in the Secre- pense of law and justice; {b) the member's rights and obli-
tariat and the International Court of Justice as they are gations as such were changed by a Charter amendment in
regarded as international officials or civil servants act- which it had not concurred or which it finds itself unable
ing for the Organiz ation itself. Since its suspension af- to accept; or (c) a n amendment duly accepted by the nl-lces-
fects only its rights and privileges, the member is still sary majority either in the Ganeral As,;emhJ,y or in a gen-
subject to the discharge of its obligations under the eral conference is not rntified.Jf,
Charter, such as the payrnent of its financial contr,bu- It will Le recalled that Indonesia withdrew from the
tions to the Organization. United Nations in 1965 but resumed its seat, to the
Exp1J.lsfon ')f M.flmhers standing ovation of the other members, after the over-
throw of Sukarno.
A member which has persistently violated the princi-
ples contained in the Charter may be expelled by two-
11
[bu.I.., Art. 6.
i1a1950 I.C.J.; 44 A.J.I.L. 582 (1950). ,. Goodrich and Hambro, p. 141.
2 1
' U.N . Charter, Art. 5. ~ Ibid., 143.

.. ' i ; }
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4
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.• .!(
J.NTF.RNATTONAJ, T,AW 'IHE U~nTED Nxnm,s 61
60

Organs of the United Nat.ion~ tions concerning international peace and security, election
of members of the Councils, admission, suspension and
The six principal organs of the United Nations are expulsion of members, questions relating to the trustee-
the General Assembly, the Security Council, the Economic ship system, and budgetary matters, are taken by two-
and Social Council, the Trusteeship Council, the Interna- 21
thirds of those present and voting. All other matters,
1
tional Court of Justice and the Secretariat. u including the determination of whether a question is im-
The subsidiary organs are those which have been portant or not, are decided by a majority of those present
17
created by or in accordance with the Charter, such as and voting. 22
the Military Staff Committee, the International Law The functions of the General Assembly may be classi-
Commission, and the Commission on Human Rights. fied and illustrated as follows:
These are not to be confused with the so-called spe-
cialized agencies which a re not part of the United Na- (1) Deliberative, such as initiating studies and
tions but are brought into close contact with it because making recommendations toward the progressive devel-
of their purposes and functions. Among theF<e are the opment of international law and its codification and rec-
World HeEt lth Organization, the International Mon':'t.::n·y ommending measures for the peaceful adjustment of any
1'1 ~.
1'·1
'fi 11nd, and the T<:>~hnic.al Assistance B0~n·rl
1 situation which it deems likely to impair the general wel-
'( 1
rl fare or friendly relations among nations.
r:J (a) The Gene ral Assembly (2) Supervisory, such as receiving and considering

I The General Assembly is the most representative of


the organs of the United Nations. It consists of all the
members oft.he Organization, each of which is-entitled
annual and special reports from the other organs of the
United Nations, making recommendations for the coordi-
nation of their various functions, and approving trustee-
18
to send not more than five representatives and five ship agreements in non-strategic areas.
alternates as well as such technical staff as it may need. (3) Financial, such as the consideration and ap-
The Gener a 1 Assembly meets in regular anm.1 al ~ei:;sion proval of the budget of the Organization, the apportion-
beginning on the third Tuesday of September or in spe- ment of expenses among its members and the approval of
cial session at the call of a majority of its members or at financial arrangements with specialized agencieE:.
19
the request of the Security Council. { 1} Elective, S'lch c1s the election 0f the non-
20
Each member of the General Assembly bas one vote. permanent members of the Security Council, all the mem-
Decisions on "important questions," such as recommenda- bers of the Economic and Social Council, and some of the
members of the Trusteeship Council, as well as, in concur-
----- ···Y":s - --::.~ ~ =~ rence with the Security Council, the Secretary-General
,. U.N. Charter, Art. 7(1). and the judges of the International Cou1t of Justice.
:~ Ibid., Art. 7(2).

t - f~ t
18
U.N., Charter, Art. 9(1).
u .•
Ibid., ·Art, 18(2).
.it:
1 I' L •
' lbid ., Art. 20.
to Ibid., Art. 18(1).
:i
21
Ibid:, ·Art: 18(3). ti
1Jt1
1
.r! ~
. j-.;. f.* 1
~ «,.. T tlt:: ...
I:

;...
.. i,
-

: ;_ f
J
11

62 INTERNATIONAL LAW Tn.F CNTTF.n NATIONS


n~

(5) Constituent, such as the admission of members The Security Council is supposed to be so organized
and the amendment. of t.hP- Charter of th':' rlnit.erl Na as to be able to function continuously, and for this purpose
23
tions. all its members shall be represented at all times at the
(b) The Security Council seat of the Organization. 77 The idea is for the Council to
hold itself in readiness at all times in case any crisis
The key organ of the United Nations in the mainte- should arise in any part of the world. Chairmanship of the
nance of international peace and security is the Security body is rotated every calendar month on the basis of the
Council. It consists of five permanent members and ten English alphabetical order of the names of the members. 28
elective mem bers. The first group, commonly known as Voting in the Security Council is governed by the
the Big Five, is composed of China, France, the United Yalta formula as devised at the Crimea Conference and
2
Kingdom, Russia, and the United States. ~ The other , subsequently incorporated in Article 27 of the Charter.
members are elected for two-year terms by the General According to this formula, each member shall have one
29
Assembly, five from African and Asian states, two from vote, but distinction is made between the Big Five and
Latin American states, two from Western European and the non-permanent members in the resolution of substan-
other states, a nd one from Eastern European states. The tive questions. Procedural matters are to be decided by the
non-permanent members are not eligible for immediate re- affirmative vote of any nine or more members.30 Decision
election. 25 Provision was also made for the staggering of on non-procedural questions, on the other hand, requires
their terms so that one-half of them now retire and are the concurrence of also at least nine members, but in-
1:: replaced every year. 26 cluding all the permanent members. However, no mem-
:1' The permanent membe1·s of the Security Council ber, permanent or not, is allowed to vote on questions
! were given a preferred position because of the feeling that concerning the pacific settlement of a dispute to which it is
they were the states that, in view of their prestige and a party. 81
power, would be called upon to provide the leadership and Procedural matters include questions relating to the
physical force that might be needed to preserve the peace organization and meetings of the Security Council, the
of the world. On the other band, the geographical distribu· establishment of subsidiary organs and the participation
t.ion of the non·-r~rrnanent mem bers, as provided for in the of states pa rties to a. dispute in the discussions of the or-
amendments to the Charter which were adopted in 1965, gan. Non·prncedural matters a re those that may require
was a recognition of the relative importance of the areas the Security Council under its responsibility of maintain-
affected in the maintenance of international order. ing or restoring world peace to invoke measures of en-

21
Goodrich and H~hro, 25-26.
2 t1 U.N. Cha rter, Art. 28.
• U.N. Charter , Art. 23(1). The U.S.S.R. has been replaced by 26
Rule 9, Rules of Procedure.
Russia.
25
18
. ~
Ibid. , Art. 23(2); as ~ended.
Ibid., Art. 23(3.): j ,
.. .
:
29

30
iJ.N . Charter, Art. 27(1).
Ibid., Art. 27(2). • i
3
' Ibid., Art. 27(3).
~ i ~
·1·
~ ll.

t·'f '~ ~
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i
'. .....
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fi4 frl'['fi:1"1A'rlONAL f -~ W
Tm,; CmTED N ATIONS
'3 ,s

forceme nt. Unlike in the General Assembly, th e "charac-


unl~ss the ~arties thern~elves submit the matter to P}.e.
terization" of a question is considered a non-procedural
32 Umted Nations. Otherwise, the intervention of the Se-
matter in the Security Council.
curity Council would violate one of the principles of the
The above rules enable a permanent member to cast Organization, to wit, that it shall not intervene in any
what is known as a '<veto" and thereby prevent agreement ma tter within the domestic jurisdiction of any state. 3 ij

on a non-procedural question even if it is supported by all


The Security Council also approves trusteeship
the other members of the Security Council. It may also agreements in strategic areas and performs a number of
exercise the so-called "double veto," by means of which it important voting and constituent functions, such as
can disapprove any proposal to consider a question merely those relating to the a.dmis sion and discipline of the
procedural a nd thereafter vote against the question itself
members of the United Nations, the election of the
on the merits. Significantly, the abstention or a bsence of judges of the International Court of Justice and the
any permanent member in connection with a voting on a Secretary-General, and the a m':'ndm':'~'t ,:if t.hP 0.hi:irtP.r.a·'
non-procedural question is not considered a veto, and the
proposal is deemed adopted if approved by at least nine (c) The Economic and Social Council
member s of the Security Council inc1uding the rest of the
33
permanent members. The Economic and Social Council originally con-
The purpose of the Yalta formula is to ensure the sisted of only eighteen members but the body was en-
unity of the permanent members in the measures to be larged to twenty-seven by the amendments to the Chl3.r-
taken in the pursuit of its primary function of main- ter adopted in 1965. It was further expanded to fifty.
taining international peace and security. It was felt that four by amendments adopted in 1971.33 All the members
any effort toward this end might not succeed if it were are elected by the General Assembly for three-year
not supported by all the members of the Big Five, which, term~ and may be re-elected immediately.39 The terms
as previously observed, are expected to exert the full h ave been so staggered as to provide for the :replace-
force of their collective leadership in the preservation of ment. or rP.·~1ection of one- fl, i rel ()f t.Jv'\ ·hnny P.ver:v yP.ar.40
the peace of the world. The Economic and Social Council shall meet in regu-
Toward this end, the Security Council mav h3ke steps lar session as required in accordance with its rules and in
for the pacific settlement of disputes34 or, when necessary, special session at the request of a majority of its mem-
even preventive or enforcement action.35 The only limita- bers.41 Each member has one vote and decisions are
tion is that the dispute must be international, that is, it
must not be an internal dissension, such as a civil war,
36
Ibid., Art. 2(6).
~ See -generally Goodrich and Hambro, 221-223. "38 U.N. Charter, Arts. 4, 5, 6, 24, 83, 97; Statut.e ofI.C.J., Art. 8.
Ibid., Art. 61(1).
aa Ibid. , 223. 39
Ibid., 61(12).
"' U .N. Charter, Chapter VI. 0
5 ' Ibid., Art. 61(3).
~ lb,}cf,_
Arts. 41, 42. 1
' Ibid., Art. 7 2(2) .

.tti-· :'. .;
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66 .{l.;>fFntf.<\l'IOl'lA 1 LAW TH1·: IJ~m Eo l'lATiot.s 6?
42
reached by a majority of those present and voting. Mem- (d) The Trust eeship c~m,,-.il
bers of the United Nations and representatives of the
specialized agencies may be allowed to participate, with- The Trusteeship Council is the organ charged with
43
out vote, in the deliberations of the Council. the duty of assisting the Security Council and the Gen-
Responsibility for the promotion of international eco- eral Assembly in the administration of the international
nomic and social cooperation is vested in the General As- trusteeship system. The Trusteeship Council is com-
11,11

sembly and, under its authority, the Economic and Social posed of: (a) the members of the United Nations admin-
J111
Council. 44 SpecificaUy, these organs should exert efforts istering trust territories; (b) the permanent members of
toward: the Security Council not administering trust territories;
and (c) as many other members elected for three-year
1. Higher standards of living, full employment, terms by the General Assembly as may be necessary.to
.~ and conditions of economic and social progress and · ensure that the total number of members of the Trus-
development; teeship Council is equally divided between those Mem-
2. Solutions of international economic, social, bers of the United Nations which administer trust terri-
health and related problems, and international, cul- tories and those which do not.~
tural and educational cooperation; and The Trusteeship Council shall meet in regular ses-
3. Universal resp ect for, and observance of, sion as required in accordance with its rules and in spe
human right.CJ rmd fundamental freedoms for all wifh- cial session at the request of a majority of its members.'~
n11.t distinction as to rt:rr·P, .c~P-X, langua.Re cir ?Pliginn. Each member has one vote and decisions are reached by
a majority of those present and voting. 47
In the performance of this duty, the Economic and
Social Council is assisted by certain subsidiary organs like For the purpose of supervising the administration of
the Commission on the Status of vVome11 and the regional the trust territories, the General Assembly and, under its
economic commissions for Europe, Asi~ and the Fl:lt East. authority, the Trusteeship Council may: (a) consider re-
and Latin America. It also collaborates and may enter into port.:, submitted by the administering authorities; (b) ac-
agreements, subject to the approval of the General As- cept petitions :ind examin9 t},em in t'.()nsultation with fl1e
sembly, with specialized agencies like the International administering authorities; (c) proYide for periodic vfajts t-0
Monet ary Fund and the International Trade Commission. the trust territories at times agreed upon with the admin-
istering authorities; and (d) take such other actions in
conformity with the terms of the questionnaire on the
political, econoffi:ic, social and educational advancement of

2
' Ibid., Alt. 67. '
5
Ibid., Art. 86.
1
" Ibid., Arts. 69, 70. 46
Ibid., Art. 90(2).
;• U.N. Charter, Art. 55. 1
• UN. Charter, Art. 89 .

• d~;
~t, , ~ii-: i,~
st .....· ~'t ~ :: r:
INT&RNATIONAL LAW 'l'HE UNITE!) NATI0.\15 69
68
4
the it1hah.itants of the trust terr:itories. is forms of civilization and the principal legal systems of the
The Trusteeship Council has largely hecome obsolete world.° 7
with the conversion of practically all trust territories int.0 The members of the Court have a term of nine
full-fledged miniature states. years and may be re-elected. The terms of the original
members were staggered in such a way as to provide for
(~) The International Court of Justice the election of one-third of the membership at three-
year intervals. 58 No judge can be removed unless, in the
The judicial organ of the United Nations is the Inter- unanimous opinion of the other members, he has ceased
national Court of Justice, which functions in accordance to fulfill the required conditions.59
with the Statute.49 All members of the Organization are The Court shall elect its President and Vice-Presi-
ipso facto parties to the Statute.50 A non-member may dent, who shall serve for three years and may be re-
become a party on conditions to be determined in each elected.60 It shall remain permanently in session, at the
case hy the General Assembly upon the reconunendation Hague or elsewhere, except during the judicial vaca-
51
of the Security Council. tions,01 and may meet either en banc,62 or in chambers
52
The Court is composed of fifteen members who are composed of three or more judges, to deal with particu-
elected by absolute majority vote in the General Assembly lar categories of cases such as those relating to labor,
and the Security Council. 53 The judges must be of high transit and communications. 63 All questions are decided
moral character and possess the qualifications required in by a majority of the judges present,64 the quorum being
their respective countries for appointment to their highest nine when the full Court is sitting.6~
judicial offices or are jurisconsults of recognized compe- The functions of the Court are to decide contentious
tence in international law.54 No two of them may be na- cases and to render advisory opinions.66 Only states, in-
tionals of the same state,55 and in the event that more than cluding non-members of the United Nations, may he par-
one national of the same state obtain the required majori- ties in contentious cases.,;7 The jurisdiction of the Comt is
56
ties, only the eldest shall be considered elected. It is also h~.<::P.cl on thP. r.on.<::P.nt. of t.hP. p::irt.iP..<:: ::i~ m::inlfi:,~t.P.rl nnclP.r
provj<l.Pd in the Statute that the election of the j11dges
should assure th-9 l'':'prP~Pnt.::it.ion in the Court of the main
~, I!Jid., Art. 9.
~e Ibid., Art. 13.
SB Ibid., Art. 18(1).
48
[bid., Arts. 87, 8~. 60
'
9
Ibid., Art. 92. Ibid., Art. 21(1 ).
61
M Ibid, Art. 93(1). Ibid., A.tts. 22(1), 23( I).
6
51 t Ibid., Art. 25(1).
Ibid., Art. 93(2). 63
52
Statute of the I.C.J., Art. 3(1). Ibid., Art. 26(1).
~ Ibid., Arts. 4, 10(1). s, Ibid., Art. 55(1).
66 :, .;.
s• Ibid., Art. 2. .: -., Ibid., Art. 25(3).
'... :~ j . 6 1.
,16 Ibid., Art. 3(1). " Ibid., Ch~pters II, IV.
! :.l 67
Ibid., Ar ts! 34, 35 ..
r,• U .N. Charter; Art. 10( 1). j. T' •' I. 1:: ~ •

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7() INTERNATLON./\L LAw THE UNirEo NATIONS '71

the "optional jurisdiction clause" in Article 36 of the Stat- The Secretary-General also acts as secretary in all
ute and comprises all cases which they refer to it a nd all the meetings of the General Assembly, the Security Coun-
matters especially provided for in the Charter or in trea- cil, the Economic a nd Social Council and the Trusteeship
ties and conventions in force. Adviso1y opinions may be Council and performs such other functions as may be as-
given by the Court upon request of the General Assembly signed to him by these organs. 11 In addition, he prepares
or the Security Council, as well as other organs of the the budget of the United Nations for submission to the
United Nations, when authorized by the General Assem- General Assembly, provides technical facilities to the dif-
bly, on legal questions arising within the scope of their ferent organs of the Organization, and in general coordi-
activities.68 nates its vast administrative machinery.
(f) 'The Secretariat The Secr&tary-General and the members of his staff
are international officers solely responsible to the Organi-
The chief administrative organ of the United Nations zation and are prohibited from seeking or rerP.iving in-
is the Secretariat, which is headed by the Secretary- struction from any government or any other authority
General. The Secretary-General is chosen by the General external to the United Nation~. 12
69
Assembly upon recommendation of the Security Council.
His term is fixed at five years by resolution of the General
Assembly, and he may be re-elected.
The Secretary-General is the highest representative
of the United Nations and is authorized to act in its behalf.
When acting in this capacity, he is entitled to full diplo-
matic :immunities and privileges which only the Security
Council may waive. The immunities and privileges of
other key-officials of the United Nations may be waived by
the Secretary General.
Of great significance is his duty to bring to the atten-
tion of the Security Council any matter which in his opin-
10
ion may threaten international pea~e ~nd !'\ecurity. Such
matter may be personally mediated by him np011 irnt.hority
of the Security Council.

6a U .N. Charter, Art. 65(1); U.N .. Charter, Art. 69.


99
Ibid., Art. 97.
ro Ibid., Art. 99. ·• i , ,
lt =
; 1 .1 Ibid., Art. 98.
1

·..i j(: t U.N.


i
72
. Charter, A.rt. 100.
1j1.H.
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1'ru;: Cnr..;c.;i,,1, OF T·HF. STATE
,3

Chapter 5 a state by assertion of its independonce following tbe for


mal withdrawal therefro111 of American sovereignty in
THE CONCEPT OF THE STATE 1946. The Kingdom of the Neth erlands was created by tbe
Congress of Vienna of 18!5, and Poland, more recently,
was revived as a separate atate by agreement of the victo-
AS THE BASIC UNIT of the international community, the rious powers after World War II. Japan is the best exam-
state is the principal subject of international law. It is, ple of a country that becallle an intern~l:inni:i l pP.rson by
therefore, important to understand its concept, the man- attainment of civilization.
ner of its creation, it.q right.s and resp0nsihilities, the dura-
tion of its existence, aj-;rl t.hP. modes and effect8' 0f it.~ P.x- Tlu~ Principle of State ~ontinuity
tinction.
From the moment of its creation, the state continues
Creation of the State as a juristic being notwithstanding changes in its circum-
stances, pi-ovided only that they do not result in loss of any
The definition and elements of the state have already of its essential elements. As Fenwick puts it, "Once its
been discussed in Chapter 3. It is worth repeating at this identity as an international person has been fixed and its
point, however, that an entity acquiring the four essential position in the internatiotial community established, the
elements of people, territory, government and sovereignty state continues to be the aame corporate person whatever
is regarded in law as having achieved the status if a state changes may,,1take place in its international operation and
and may, therefore, be treated as an international person. governmen. t
The generally accepted methods by whlch this status is Thus, reduction of its population owing to, say, a
acquired are revolution, unification, secession, assertion of natural calamity like an earthquake will not cause the
independence, agreement and attainment of civilization. extinction of the state as long as a substantial number of
The United States was created as a result of the the people survive. Neithet will loss of part of its territory
revolution against British rule of the thirteen original provided that the remainder is still sizable. The continuity
colonies that first formed a confederation in 1781 and then of state life is also not imDaired by changes in the form of
a federation in 1789. The state of Italy grew out of the government, as when. a republic is conv~rted into a t0tali-
unification of the independent city states of Sardinia, Flo- tarian regime, or by replaeement of the chief of' state even
rence, Naples, Rome and others in 1870 under the so-called through violent methods. Limitation of sovereignty, as
"principle of nationalities.'' Bangladesh became a separate when an independent state becomes a protectorate, only
state when it seceded from Pakistan in 1971. The fourth reduces it to the status of a dependent state but does not
method is illustrated by the Philippines, which became entire:i:, deprive it of intern.ational personality.

72
' Fenwick, 158.

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74 INTERNATIONA'- LAw TJ.TP r.rnJ,:,1,• 01· ,_,r,· ·1-.,.: ~1'6'1!.'


75

This p1inciple of state continuity, as it is called, was others. If it is a federation, it may be broken up or dis-
2
applied in the famous S apphire Case. Louis Napoleon, as solved by the withdrawal of all its members. In the case of
Emperor of France, filed in a California court a civil claim an independent state that becomes dependent, there is to
for damages in connection with a collision between the the extent that it is deprived of freedom to direct its exter-
French vessel Euryale and the S apphire but W A.S subse·· nal affairs a partial 1oss of its international personality. In
quently deposed while the case wa.s pending. On the l>:!gal every one of these instances, there is a radical impairment
effect nf this development on th e litigati0r1, t.hP. [ J.S. Su or actual loss of one or more of the essential elements of
preme Court h l'lc1 thP. follov,':ing t0 Rl'ly: th"' ~t.ate tfo,1t will rei:;u}t in its ext.inl".ti0n.
The next question is whether the s wt has become abated Succession of States
by the recent deposition of the Emperor Napoleon. We think it
has not. The reigning sovereign r epresents the national sover·
eignty, and the sovereignt y is continuous and perpetual, re·
The question of state succession will a rise in the
siding in the proper successors of the sovereign for the time event that a state is extinguished. or is created as a result
being. Napoleon was t he owner of the E uryale not as an indi- of any of the methods previously discussed. State succes-
vidual but as sovereign of France. This is substantia lly averred sion takes place when one state assumes the rights and
in the libel. On his deposition the sovereignty does not change some of the obligations of another because of certain
but mer ely the person or persons in whom it resides.
changes in the condition of the latter. 3 Such succession
The foreign state is the true and real owner of its public
may be either universal or partial.
vessels of war. The reigning Emperor, or National Assembly, or
other actual person or party in power, is but the agent and rep- There is universal succession when a state is annexed
resentative of the national sovereignty. A change in such rep· to another state or is totally dismembered or merges with
res entative works no change in the national sover eignty or its
another sta te to form a new state. In all of these cases, the
rights. The next successor recogni.zerl by our go·,ernment is
competent to carry on a suit ?l=Any mmroenced and re,;~i.'"" internation dl personality of the former state is completely
t he fruits of it. absorbP-<l by the Ruccessor. Partial succession takes place
when a portion of the territory of a state secedes or is
E::irHn~tion o f the State ceded to another or when an independent state becomes a
proteotorate or a suzerainty or when a dependent state
Neveitheless, it is error oo suppose that a state is acquires full sovereignty.4
l immortal, for the fact is that it is possible for it to be ex-
''( tinguished, or "die" in a legal sense. For example, the Consequences of State Succession
11, population may be completely wiped out by an epidemic or
fl a t hermonuclear explosion; or it may emigrate en masse. Uprm ~ change of sovereignty as a re..sul t of st.Ate 8UC·
Tt.s government may b8 overthrov1 n without being replaced, cession, the allegiance of the inhabitants of the predeces-
resulting in anarchy. The state may merge with another sor state in the territory affected is transferred to the sue-
state ·or its territory may be dismembered or annexed by
..
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11 Wall. 164.

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Oppenheim-Lauterpacht, 157; _

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lm' ERNA'I'IONAL T,AVi 'fnE CrmcEIT or m t S't'A1'E 'l'l
76

cessor state. Usually, they are also n aturalized en masse, and independent government of the Philippines." On the
as when Philippine citizenship was conferred on the in- other hand, the United States did not assume the debts
habitants in general of the Philippine Islands under the pertaining to the Philippine Islands at the time of its ces-
provisions of the treaty of cession between Spain and the 8ion under the Treaty of Paris of December 10, 1898.
United States. In People v. Perfecto, the defendant was prosecuted
The political laws of the former sovereign are auto- for having published an editorial against certa.ln members
matically abrogated and may be restored only by a positive of the Senate in violation of Article 256 of the Spanish
act on the part of the new sovereign. But non-political Penal (',ode which punished "any person who, by word,
laws, such as those dealing with familial relations, are deed, or writing, shall defame, abuse, or insult any Minis-
deemed continued unless they are changed by the new ter of the Crown or ot.ber person in authority.'· In holding
sovereign or are contrary to the institutions of the succes- that the said article was no longer in force riming the
Ar~1f:>ri<>sin rngimP., thP. 8upreme Court declared: ·
sor state.5
Treaties of a political and even commercial nature, as Article 256 of the Penal Code is contrary to the genius
well as treaties of extradition, are also discontinued, ex and fundamental principles of the American character and sys-
cept those dealing with local rights and duties, such as tem of government. The gulf which separates this article from
those establishing easements and servitudes. Sometimes the s pirit which inspires all penal legislat ion of American 01i-
gin is as wide as that which separates a monarchy from a
the successor state stipulates in appropriate treaties or by democratic republic like that of the United States. This article
formal proclamation the international corrunitments it is was crowded out by implication as soon as the United States
willing to respect. established its authority in the Philippine Islands . Penalties
out of all proportion to the gravity of the offense, grounded in a
All the rights of the predecessor state are inherited by distorted monarchial conception of the nature of political
the successor state but this is not so where liabilities are authority, as opposed to the American conception of the protec-
concerned. The successor state, in fact, can determine tion of the interests of the public, have been obliterated by the
which liabilities to assume and which to reject solely on present system of government in the Islands.
the basis of its own discretion. For example, contractual From an entirely different point of view, it must be noted
and tort liabilities generally do not devolve on the succes- that this a1'ticle punishes contempts against executive officials,
although its terms are broad enough to cover the entire official
sor state, although there certainly is nothing to prevent it class. Punishment for contempt of non-judicial officers has no
from assuming them. Thus, it was provided in Article place in a goYemment based upon American principles. Our of-
X\11, Section 1(3) of the 1935 Consti~.ution that "the debts ficial dass is not, as in monarchies, an agent of some au~.h01'ity
and liabilities of the Philippines, its provinces, cities and greater than the people but it is an agent ?.11rl. ,;<?•'V.:11)t, nf t.he
municipalities which shall be valid and subsisting at the people themselves. These officials are only entitled to respect
and obedience when they are acting within the scope of their
time of the final and complete withdrawal of the sover- authority and jurisdiction. The American system of govern-
eignty of the United States shall be assun:.~ by the free ment is calculated to enforce re!ipect and obedience where such

l:1.:.-;::
respect and obedience is due, but never does it place around
the individua l who happens to occupy an official position by
i
;:

IL
.
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. ;. }
5
People v. Perfecto, 43 P hil. 887. .l
i
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itL
fi'¥ ~t .,..
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78 l!\"l'ER.NATlONAL LAV, 'T'HR C:oNr.F.FT OF THE STATE 79

mandate of the people any official hal,:,, v;hich calls for ,:1,-,.,::t.ir. The greater part of governmental machinery in every
punishment for contemptuous remarks. modern country is not affected by changes in the higher ad-
ministrative officers. The sale of postage stamps, the registra-
Succession of Governments tion of letters, the acceptance of money orders and telegrams
(where post and telegraph are government services), the sale of
Rela ted to succession of states is succession of gov- railroad tickets (where railroads a re operated by the govern-
ernments, where one government replaces another either ment), the registration of births, deaths, and marriages, even
many rulings by the police and the collection of several types of
peacefully or by violent methods. In both instances, the taxes, go on, a nd must go on, without being affected by new
integrity of the state is not affected; the state continues as elections, government cdsis, dissolutions of parliament, and
the same international person except only that its lawful even state strokes. A resident in Mexico who cleans the gov-
representative · is changed. Questions of succession will, ernment bureaus or pays his school fee to the administration
therefore, involve only the former and subsequent gov- does not and cannot take into consideration the regularity or
even legality of the present administration and the present
ernments and third parties which may be affected by their congress; his busi ness is not one with personal rulers, not one
relations. with a specific a dministration, but one with the government it-
It is well settled that as far as the rights of the prede- self in its unpersonal aspect.
cessor government are concerned, they are inherited in The difficulty of distinguishing between the government
I toto by the successor government. Regarding the obliga - itself and the a dministration of the government a rises at the
point where the voluntary dealings and relations between the
i'..· ·, tions, distinction is made according to the manner of the individual and the government agencies assume a personal
establishment of the new government. character in support of the particular agencies administering

I~I The rule is that where the n ew government was or-


ganized by virtue of a constitutional reform duly ratified in
the government for the time being. To this class belong volun-
tary undertakings to provide a revolutionary administration

l a plebiscite, the obligations of the replaced government are


also completely assumed by the former. Conversely, where
the new government was established through violence, as
with money or arms or munitions and the like. But the ordi-
nary agencies, departmente, and bureaus of the government
must continue to function notwithstanding its principal ad-
ministrative offices may be in the hands of usurpers, and in
!Jll !
by a revolution, it may lawfully reject the purely personal such a case the sale and delivery to these necessary and le-
gitimate agcnciEis of F-11pp.Ues, merchandise, and the like, to en-
or political obligations of the predecessor government but
ab:e the government itself in its unpersonal aspect to function
not those contracted by it in the ordinary course of official is a very different transaction from one having for its object the
business. To illustrate, the cost of arms purchased by the support of an individual or group of individuals seeking to
old government for use against the rebels cannot be maintain themselves in office. The character of each transac-
charged against the new governm0nt. On the other hand, tion mus t be judged and determined by the facts of the par-
ticular ~se.
the successor government may be held to the paymen t of
postal money orders purchased by an individual from the
government it has replaced.6

~
U.S. (on behalf of George W.· Hopkins) v. Mexico, Opinion
of Commissioners (1927), 42.
..
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Ii!

RECOGNITION 81

Recognition may be extended by individual states or


Chapter 6 by a number of them together. In the Philippines, it is the
!Iii
President who determines the question of recognition and
RECOGNITION his decisions on this matter are considered acts of state
which are, therefore, not subject to judicial review. His
authority in this respect is derived from his treaty-making
i.I EVEN IF AN ENTITY has already acquired the elements
of international personality, it is not for this reason alone
power, his power to send and receive diplomatic represen-
tatives, his military power, and his right in general to act
il.1 automatically entitled ·to membership in the family of as the foreign policy spokesman of the D3.tion. Being essP.n-
nations. Its admission thereto is dependent on the ac- tially discretionary, the exercise of these pov,ers mav not be
1!911 lmowledgment of its status by those already within the compelled.
fold and their willingness to enter into relations with it as
a subject of international law. Obviously, it is accepted as Objects of Recognition
such only in so far as the states making the acknowledg-
meri t are concerne<l, which means t.hat it is st.ill legally Recognition may be extended to a state, to a govern-
non-e,-.dstent in the view of all other Rtates. The extent of ment, or to a belligerent community. Recognition of a state
its membership in the international community is, there- is generally held to be i1Tevocable and imports the recogni-
fore, dependent on the number of states prepared to admit tion of its government. Recognition of a goverrunent, on
the other hand, may be withdrawn and does not necessar-
it. ily signify the existence of a state as the government may
The above observations are reflective of the majority
be that of a mere colony.2 Recognition of belligerency does
theory that recognition is merely declaratory and only
not produce the same effects as the rec:l)gniti.on of states
affirms the pre-existing fact that the entity being recog-
and governments because the rebels are accorded interna-
nized already possesses the status of an international
tional personality only in connection with the hostilities
person. As thus understood, recognition is highly political
they are waging. 3
and discretionary. By contrast, the minority view holds
that recognition is constitutive, meaning that it is the last Kinds of Recognition
indispensable element that converts or constitutes the
entity being rect)gnized in to an inter.national person. Rec- Recognition may be P-ither express or implied.

'~
!!
ognition in this light is regRrded a~ mandatory and legal Express recognition may be verbal or in writing. It.
and may be demanded as a matter of right by any entity may be extended through a formal proclamation or an-
that can establish its possession of the four essential ele- nouncement, a stipulation in a treaty, a letter or telegram,
1
ments of a state. : :· or on the occasion of an official call or conference. For ex-
;

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Brierly, 1241 ~.i~hop, 232-233. 2
., i
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t" t~ :' Hackworth, 166; Fenwick, 157.

"· '. .'. ~ 1- : ,,

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J: .,.. : · 80 Wilson an~ Tucker, 69-72 ..
~

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INTEm,Anor,,r4r. r.,Aw
RECOGNITION 83
ample, the state of Israel and its provisional government
were recognized by the United States in a statement re- As to the effect of common membership in an interna-
leased to the press by President Harry S. Truman on May tional organization of states that have not previously rec-
14, 1948. The Communist government of Russia, on the ognized each other, the view is that they are deemed to
other hand, was recognized by Italy in a treaty concluded recognize each other only \vi.thin the said body and not
between the two countries in 1924. A simple telegram elsewhere. Thus, the Philippines and the Soviet Union for
sufficed to extend American recognition to Poland after many years dealt officially with each other in the United
World War I. Nations, of which they are both charter members, but did
Recognition is implied when the recognizing state en- not otherwise maintain relations outside the Organization
ters into official intercourse with the new member by ex- until they exchanged diplom::lt,ir. rP.r.ognit.inn in 197fi
changing diplomatic representatives with it, concluding
Recognition of States
with it a bipartite treaty dealing comprehensively with
their relations in general or, as suggested by some writers, The recognition of a new state is the free act by which
acknowledging its 4
flag or otherwise entering into formal one or more states acknowledge the existence on a definite
relations with it. In the case of a belligerent community, te1Titory of a human society politically organized, inde-
recognition is implied when the legitimate government pendent of any existing state, and capable of observing the
blockades a port held by the former or when other states obligations of international law, and by which they mani-
observe neutrality in the conflict.'
fest therefore their intention to consider it a member of
In every case, it is important that "the act constitut- the international community.7a
ing recognition shall give a clear indication of an intention: The recognition of a new state does not present much
(1) to treat with the new state as such, or (2) to accept the difficulty when it is established through peaceful methods,
new government as having authozity to represent the such as by plebiscite or agreement. For example, recogni-
state it purports to govern and to maintain diplomatfo tion was unhesitatingly extended to Nonvay and Sweden
relations with jt, or (3) to recognize in the case of insur- upon their formal separation in 1905, to Egypt in 1922
g-p~ts that they RXe ent.itl1:>d tn ~~<:>rcisP. h<:>lligerent rights.'"' when it was declared independent by Great B1itain, and to
I
Short of such clear intention, dealings with the entity the Philippines upon the withdrawal of American sover-
Jr; in question, as when a fact-finding mission is sent to its eignty therefrom in 1946. But in the case of the newly~
territory or consular officers are stationed or maintained establii::.he.d United St~te.!3 of America, the remgnition ex-
in it by a foreign state, will not give rise to recognition. 1 tended to it by France in 1778 was resented by Great Brit-
ain, which shortly afterwards declared war against the
French. The recognition by the United States of the new
• Fenwick, 137. ' state of Brazil in 1822 fared better because Portugal, the
s Bishop,
261. parent state, had evidently lost interest in its fonner colony.
6

1
Hackworth, 166.
= Ibid. ~
! } : :I : :..

I
1

t it
,.. ti
• Art. I. Institute de Droit)l'terpatipnal.
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-..: l" 'f ! .·.

111 f NTEIU-1 /\Tl"..'N.'\L I ,11W
H.RrnGNl'110n 85
n:. R4

(3) That which is established by the inhabitants of a


Recognition of Governments
state who secede therefrom without overthrowing its gov-
The recognition of t he new government of a state ernment. Example: the Confederate government during
which h as been already recognized is the free act by which the American civil war which, however, did not seek to
one or several states acknowledge that a person or a group depose the Union government.~
of persons is capable of binding the state which they claim Under t he Tobar or Wilson principle, which was ex-
to represent and witness their intention to enter into rela- pressed in a treaty of the Central American Republics in
7
tions with them. b 1907 at the suggestion of Foreign Minister Tobar of Ecua-
Ac, in t he case of the recognition of states, the recogni- dor and reiterated in 1913 by President Woodrow Wilson
tion of governments is usually decided mainly on the basis of the United States, recognition shall not be extended to
of political considerations. Premature recognition may any government established by revolution, civil war, coup
lead t o international misunderstanding if the new gov- d'etat or other forms of internal violence until t he freely
ernment has been established through violent methods. elected representatives of the people have organized a
Peaceful change of government does not pose any problem, constitutional government.
of course. But it is different where the former government A similar inhibition was applied by the Stimson prin-
is replaced by force an d the new government thereafter ciple against governments established as a result of exter-
claims the right to represent the state to the exclusion of nal aggression. F ormulated by U.S. Secretary of State
the other . In a case like this, the dejure government might S t imson, it was subsequently adopted by the League of
have cause for complaint if recognition is extended by Nati0n."l ir.. a resolution declaring that it was "incumbent
other governments to the de facto government. upon the members of the League of Nations not to recog-
The three kinds of de facto gover nments are the fol- nize any situation, treat y or agreement which may be
lowing: brought about by means contrary to the Covenant of the
(1) That which is established by the inhabitants Le ague of Nations or t o the Pact of P aris."
J~ who rise in revolt against and depose the legitimate re-
gime. Example: the Commonwealth established by Oliver
Disclaiming the right of foreign states to rule upon
the legitimacy of the government of another state, Minis-
Cromwel1 which supplanted the monarchy under Charles ter Genaro E strada of Mexico announced in 1930 a doc-
I of Engla nd. trine that now bears his name. Under the Estrada doc-
(2) That which is established in the course of war by trinP;, tbe Mexican government. declared th~t it would, as it.
the invading forr..ei:; of 0ne belligerent in the territory of the sa,v fit, continue or terminate its relations with any coun-
other belligerent, the government of which is also dis- try in which a political upheaval had taken place "and in
placed. Example: the J apanese occupation government in so doing it does not pronounce judgment, either precipi-
the Philippines which replaced the Commonwealth gov- tately or a. posteriori, regarding the right of for~ign nations
.,·
ernment during World War II. ,cH
- - - - - - - - -- r ~
t~! ·n

~I ...
?L Art. X, ibid. !
' l:.:
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.... ~,..
.;. ·~ !f.
A Co Kim Ch~ri v. Valdez Tan Keh, 75 Phil. 131,
\ 1;
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l\
INTERNATIONAL T..HI.' RECOGUJTIOU ~'7
86

to accept, maintain or repl?.t:':" t.hP.ir g<wP.rnments or Effects of Recog'nit.ion. of St;~.f:'="i;:: ~.n.d G•.,v~rnm-ents
authorities." Following are the consequences of the recognition of
In any event, the practice of most states now is to ex- states and gove1nments:
tend recognition to a new government only if it is shown
that it has control of the administrative machinery of the (1) Full diplomatic relations are established except
state with popular acquiescence and that it is willing to where the govemment recognized is de facto. 11
9
comply with its international obligations. The first crite- (2) The recognized state or government acquires the
rion, which is described as the objective test, simply im- right to sue in the courts of the recognizing state.
ports that the government must be able to maintain order Thus, in the case of Russian Socialist Federated So-
within the state and to repel . external aggression. The viet Republic v. Cibrario, 12 the plaintiff filed suit in an
second criterion is a subjective test and may be employed American court for fraud and breach of a contract it had
for the purpose of justifying the withholding of recognition entered into with the defendant. In dismissing the action>
from a government that is politically unacceptable. the Court held:
A government satisfying the aforementioned re-
We reach the conclusion that a foreign power brings an
quirements is usually recognized as de jure. If it has not action in our courts not as a matter of right. Its power to do so
yet sufficiently demonstrated compliance with these condi- is the creature of comity. Until such government is recognized
tions, it may for the time being be recognized as de facto by the United States, no such comity exists. The plaintiff con-
until it is able to show that it is deserving of de jure rec- cededly has not been so recognized. There is. therefore, no
ognition. Where there is no indication of the kind of recog- propet· party b~fore us. We may add that recognition, and, con-
~e.q•.tP.nt.Jy, th.~ ... ~(.i~ticn~P nf ('llmit,y, ii,_ r•.)f~ly for the determina-
nition being extended, the presumption is that it is de ju.re. tion of the legislative or executive department of the govern-
The distinctions between the two kinds recognition of ment. Who is the sovereign of a territory is a political question.
are the following:
(1) Recognition de Jure is rel;:i.tively permanent; rP.<'-
But mere breach of diplomatic relations does not have
the effect of withdrawing the J ight to stu:3, ?.s held by the
ognition de facto is provisional.
U.S. Supreme Court in Banc.o Nacional de Cuba u. San·
(2) Recognition de Jure vests title in the government batino. 12n
to its properties abroad; recognition de facto does not.
(3) Recognition de jure brings about full diplomatic Respondents, pointing to the sev~:rance of diplomatic re-
relations; recognition de facto is limited to certain juridical lations, commercial embargo, and freezing of Cuban assets in
10 this country, contend that relations between the United States
relations. and Cuba manifest such animosity that unfriendliness is clear,

.' 11
Fenton Textiles Association v. Krassin, Great Britain, Court

9
Fenwick, 159-162. t~
t i ; ~-
, ,. -·
~ of Appeals,. 1921, 38 Times Law Rep., 787-790.
12
New York Court of Appeals, 1923, 235 N.Y. 255. ~-~r LI
.,Ont
12
Oppenheim-Lauterpacht, 136-137,~ i_
.t: ;;
•· ?7.f> U.S. 398.
10

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.lil::COGUITI01: RI'.)

and that t he courts should be closed to t hf' ~ 11 ~11 Govern


ment. OETJEN v. C:ENTRAL I,g A'T'HF.H r.o
We do not agree. This Court would hardly be competent 2'1'3 U.~. W7
to undertake such assessments of varying degrees of friendli-
ness or its absence, and, lacking some definite touchstone for Facts: Certain hides in Mexico belonging to X were
determina tion, we are constrained to consider a ny re la tionship, seized by the Ca rranza government, then engaged in civil
short of war, with a recognized sovereign power as embra cing war, and sold to an Ame rican firm which brought them to
the privilege of resorting to United States courts. Although the New Jersey. H ere an action for recovery was filed by X on
sever ance of diplomatic relations is an overt act with objective
significance in the dealings of sovereign states, we are unwill- the ground that the seizure was invalid. At the time of this
ing to say that it should inevitably result in the withdrawal of seizure, the Carranza government controlled about two-
the privilege of bringing suit. Severance may take place for any third$ of Mexico but there was no government in that
number of political reasons, it.c:; dura tion is unpredictable, ancl country recognized by the United States. However, the
whatever expression cf animosity it may imply does n0t "'f'·
proach that implfoit ir "' rl Pdtn a tion of war. United States, on October 19, 1915, recognized the Car-
ranza regime as a de facto government, and, on August 31,
But it is error to suppose that non-suability of the 1917, as the de Jure government of Mexico.
foreign state or gover nment is a lso an effect of recognition, Held: "When a government which originates in
as this is a n a ttribute it can claim whether or not it has revolution or revolt is recognized by the political depart-
been recognized by the local state. The applicable rule is ment of our government as the de Jure government of the
.
,~··
' the doctrine of state immunity. It has been held that to coun try in wh ich it is established, such recognition is ret-
cite "a foreign sovereign in the municipal courts of another roactive in effect and validates all the actions and conduct
I
state" would be "an insult which he is entitled to resent" of the government so recognized from the commencement
and would certainly ''vex the peace of nations.''13 of its existence. (Williams v. Bruffy, 96 U.S. 176, 178; Un-
I~ (3) The recognized state or government has a right derhill v. Herna ndez, 168 U.S. 250, 253)
f,i to the possession of the proper ties of its pr edecessor in the "The principle tha t the conduct of one government
territory of the recognizing state. 14 cannot be successfully questioned in the courts of another
(4) All acts of the rec0gnized stat{'! or government is applicable to a case involving the title to property
8.rP, validated ret.rn;:i.ctively, preventing the recognizing brought within the custody of the court, such as we have
state from passing upon their legality in its own courts. here, as it was held to be the cases cited, in which claims
for damages were based upon acts done in a foreign coun-
try, for it rests a t last upon the highest considerations of
international comity and expediency."

Recognition of Belligerency

\3

;
; ;

· ·· t .
,
't•
De Ha ber v. Qllee:Q of Portuga l, 17 Q.B., 171.
...,.'j ;'
" Oppenheim-Lal!terpacht, 138-139 .
\. ,:

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11
...
'
A belligerency exists when the inhabita~ts of a state
rise up in arms for the purpose of overthro~~g_the legiti-
: •

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- ~,1~!
!
90 frITERNt,.'I'I0i'!I'' · LAW
RECOGNITION
91

mate government. It is to be distinguished from a n insur- (4) The rebels mm,t hP. vvilling ::inn 11 hlP. to oh!C!i:>rv<:>
gency in certain important respects. In the first place, ~.hA JJ:11111~ nf Wl'll" IS

insurgency is the initial stage of a belligerency, which is


more serious and widespread. In the second place, insur- Con...:.equencP~'i of R ':'ec>gnitio n of Belli~erency
gency is directed by military authorities whereas belliger-
ency is under a civil government. Finally, insurgency is Upon recognition by the parent state, the belligerent
usually not recognized wh ereas th ere are settled rules community is considered a separate state for purposes of
regarding the recognition _of belligerency. the conflict it is waging against the legitimate govern-
Generally sp~aking, a belligerency is supposed to be a ment. Their relations with each other shall, thenceforth
merely internal affair of the state and does not produce and for the duration of the hostilities, be governed by the
much internation al repercussion. The relations between laws of war, and their relations with other states shall be
the state and other states continue to be governed by the subj ect to the laws of neutrality. Thus, the troops of either
laws of peace and the relations between the forces of the belligerent, when capttiretl, shall be treated as prisoners of
legitimate government and those of the rebel community war, ar.i.d the parent state shall no longer be Hable for a ny
continue to be regulated by their municipal law. Accord- damage that may be caused to third states by the rebel
ingly, any damage caused by the rebels to a third state is government. Both belligerents may exercise the right of
imp1.1table to the legitimate government, and the rebels, visit and search upon neutral merchant vessels. The rebel
when captured, will be prosecuted as ordinary criminals. government, equally with the legitimate government, shall
Neither the legitimate nor the rebel government is allowed be entitled to full war status as regards all other states
to exercise belligerent rights as against other states, which and may establish blockades, maintain prize courts and
are entitled to consider them as belonging to one a nd the take other allowable war measures.
same state. ·where recogniti.on is exten0.e d by third states, the
But when the conflict widens and aggravates, it may above consequences are effective only as to them and do
be necessary, for practical reasons, to consider the formal not bind other states not extending recognition. It is only
recognition of the belligerent community. Such recognition where the recognition is made by the parent state that the
is usually extended only where the following conditions effects thereof become general and are legally applicable to
are established: all other states.18
(1) There must be an organ ized civil gov-?rnHll?Tlt. r:li.-
recting th':' T€"bi>l fm·~f?-!C!
(2) The rebels must occupy a substantial portion of
the territory of the state.
(3) The conflict between the legitimate governmenl
and the rebels must be serious, making the outcome un-
certain. 15
a Wilson and Tucker, 69. ;
,.' ; l.
16
Ibid ., 71-'._72; Fenwick, 145-14_6;
'7 ~
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,111

'
'l'H€ RIGHT OF Ex!STENCE Al'H) SELP-DEFENSF. 93

:RP'}1.tisites of Right
Chapter 7
In 1'.utide 51 of the Charter of the United Nations, it.
'l'HE R.T{jff'I' OF EXISTENCE AND is provided that-
SELF-DEFEN~R
Nothing in the present Charter shall impair the
inherent right of individual or collective selfdefense if
ONCE A STATE comes into being, it is invested with cer- any armed attack occurs against a member of the
tain nghts described as fundamental. These are the right United Nations, until the Security Council has taken
of existence and self-defense, the right of sovereignty and the measures necessary for the maintenance of inter
11,,1
independence, the 1ight of equality, the right of property national peace and RP.r.urity ..Y. x .r.
and jurisdiction, and the right of legation or diplomatic
intercourse. · The presence of an "armed attack" to justify the exer-
The most important of these rights is the right of ex- cise of the right of self-defense under this article suggests
istence and self defense. It is considered the most compre- that forcible measures may be taken by a state only in the
hensive of the attributes of the state because all its other face of "a necessity of self-defense instant, overwhelming
rights are supposed to flow or be derived from it. By virtue and leaving no choice of means and no moment for delib-
of this right, the state may take such measures, jncluding eration."1 Mere apprehended danger or any direct threat to
the use of force, as may be necessary to resist any danger the state does not, by itself alor:.e, warrant the employment
to its existence. Such action being the exercise of an inher- by that state of any force against a suspected or potential
ent right, it does not depend for its validity on the previous enemy. The right may be resorted to only upon a clear
recognition of the state asserting it or on the consent of showing of a grave and actual danger to the security of the
other states. state, and, furthennore, the self-defensiye measures must
The right of self-defense has been expressly acknowl-
be "limited by the necessity and kept clearly within it.',2
edged in a number of important agreements, foremost This rather idealistic concept has, unfortunately, not
among which is tJ,e Charter of the United Nations. The received wide support if the practice of states i.s any indi-
Draft Declara.ti.on of t.he R.ight.s ~nd Duties of States. cation. Although 0-rot.ius v:i.goro1.1sly inveigher:! against
which was prepared by the International Law Commission mere anticipation of aggression as a ground for self-
at the request of the General Assembly, also affirms that defense,3 it would appear that his view has been eroded by
"every State has the right of individual or collective self- the more practical consideration that at times "the best
defense." defense is offense." In espousing the opposite thesis, U.S.
Secretary of War Elihu Root declared (and thereby differed
1IHil
I . ;_ i
Caroline,) ~Whart, Sec. 50. ..4j.
. ~· ·i 2
Ibid. :, :; 1 '.
92
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Fenwick;t2B2. : _
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l~l 94 U."TERNATIONAL L,\W
THE RICUT Of EXJSTENCE ANO SELF-DEPJ::NSE 95
l
I
II with a predecessor, U.S. Secretary Daniel Webster, who
years before had argued in favor of the traditional view):
Japan in 1904 on the ground that Russia> its enemy then,
also had its eye on the country and might use it as a base of
operations against Japan. For its part, Russia in 1939 in-
It is well understood that the exercise of the right of self- vaded the small state of Finland and sought to justify its act
~'~
protection may and frequently does extend the limits of the
territorial jurisdiction of the state exercising it. The strongest
as a strategic measure to defend itself from an anticipated
example would be the mobilization of an army by another German invasion. Only recently, the United States at-
power immediately across the frontiel'. Every act done by the tacked Iraq on the ground that it was storing biological and
other power may be within its te1Titory. Yet the country chemkal weapons of mass destruction that it was intending
threatened by the state of facts is justified in protecting itself
by immedia~e war.
to use against the Ame1icans.

The above remarks, which were made more than half 'l'he Cuban Missile Crisis
a century ago, have derived added validity from the ad- The quarantine established by the United States in
vances of modern science and the development of more 1962, during the Cuban missile crisis, deserves special rec-
sophisticated methods of warfare. Indeed, the interconti-
ollection. Declaring that "the peace of the world and the
nental ballistic missiles have now made it possible for at security of the United States (had been) endangered by
least the so-called superpowers to inflict instant devasta- reason of the establishment by the Sino-Soviet powers of an
tion without any previous overt indication of their inten-
offensive military cap;::ibility in Cuba, induding hases fo1·
tions or even a physical invasion of the territory of the
ballistic missiles with a potential range covering most of
enemy. One might well argue now that the very state of
N01th and South America," President John F. Kennedy
armed preparedness of a nuclear power is per se a potent,
interdicted the delivery of offensive weapons and associated
if latent, threat to the security of any country with which
materials to Cuba, subject to the following instructions:
l! it may have some differences. Such a country would, un-
der this view, have a right to beat the other to the draw, as To enforce this order, the Secretary of Defense shall take
it were, and justify its act under the right of self-defense. appropriate measures to prevent the delivery of prohibited ma·
terial to Cuba, employing the land, sea, and air forces of the
History is replete with instances of the application of United States in cooperation with any forces that may be made
this more pragmatic concept of the right of self-defense. available by other American States.
For example, the mobilization of Russia in 1914 brought The Secretary of Defense may take such regulations and
about the immediate declaration of war against it by Ger- issue such di1·ectives as he deems necessary to ensure the effec·
many, which asserted that its security had been imperiled. tivenes~ of this N'der, including the dei;ignation, within a rea-
':'01'?hl~ (\;i,t.anr.~ of Cuba, of prohibite-:l or re~tri~t'l.:.J zor1es ancl.
Sometimes, even innocent pawns have become the direct
object of hostilities in the interest of actual or claimed of prescribed routes.
Any vessel or craft which may be proceeding toward
necessity for self-defense, as when Great Britain seized
Cuba may be intercepted and may be dil'ected to identify itself,
the Danish fleet in 1807 to prevent it from falling into the its cargo, equipment and stores and its po1ts of call, to stop, to
hands of the French with whom the British were then at
w a r. A similar fate befell Korea when it was invaded by
~,,,::
lie to, submit to visit and search, or to proceed a~ directed. Any
vessel or craft which fails or refuses to respond to: cir comply
- .
Im
'liil
qh lmERNA1'lONAL T ·"'W
'fHE RrGIIT OP Ex1sn:~:CF. Atlf! SF.LP-DEFENSE 97

1i 1: with directions shall be subject to being taken into custody. tion therein of the United States, which does not belong to
Any vessel or craft which it is believed is en route to Cuba and the samP geographical area as th':) otho?r !.1•<:mh,:,r q ThirlP.r
may be can·ying prohibited material or may itself constitute A~·t.irlP 5 of the North Atlantic Treaty-
flli such material shall, wherever possible, be directed to proceed
to another destination of its own choice and shall be taken into The Parties agree that an armed attack against one or
n custody if it fails or refuses to obey such directions. All vessels more of them in Europe or North America shall be considered
or craft taken into custody shall be sent into a port of the an attack against thE>m all; and consequer!tly they agree that,
United States for appropriate disposition.
I In carrying out this order, force shall not be used except
in case of failure or refusal to comply with directions, or with
if t•uch an armed attack occurs, each of them, in exercise of the
right of individual or collective self-defense recognized by Arti-
cle 51 of the Charter of the United Nations, will assist the
regulations or directives of the Secretary of Defense issued Party or Parties so attacked by taking forthwith, individually
hereunder, after reasonable efforts haw~ been made to commu- and in concert with other parties, such action as it deems nec-
nicate t.hP.m t:o t.he vessel or ci·aft, <'r in case of self-defens~. fo essary, including the use of armed force, to restore and main
any ca~f\ forr.f'! shall b~ nc:~('1. nnly t.o thP. P.xtent ne~ess::iry. t.ain the securitv of the North Atlantic area.

Fortunately, the USSR backed down and thus The Balance of Power
averted the outbreak of what would have been World War
III. . One reason for the organization of regional arrange-
~~I l ments is to provide for the balance of power, which Vattel
i~ii
[ 11 Regional Arrangements described as "an arrangement of affairs so that no state
,., !
t.{11 shall be in a position to have absolute mastery and do-
Collective self-defense is recognized not only in Arti- minion over others.'"'
,11 cle 51 of the Charter of the United Nations but also im-
The Congress of Vienna of 1815, the Crimean Wax of
pliedly in Article VII on RegionAI ArrnngP.mf'mt.(;_ Tn Article
1854, the Congress of Berlin of 1878, the Triple Alliance
59., SP.(' 1, it lR pmvinP.d that
and the Triple Entente before World War I, and the
Nothing in the present Charter precludes the ex- groupings between the Allied and Axis Powers during
istence of regional arrangements or agencies for deal- World War II were all motivated by balance of power con-
ing with such matters relating to the maintenanc.e of' siderations and ba~ed on the fundamental right of self.
international peace and security as are appropriate defense.
for regional action, provided that such arran.gemrnts Until recently, most of the world was p0larizE>d be-
tween the democracies and the communists, each camp
II or agenci~s and their activities are consistent with the
Pumoses and Principles cf the r__rn;t"il. Nntinns. with the potential to destroy the other and the rest of
mankind with it. The NATO countries were eyeball-to-
I An example of such a regional agency is the Organi- eyeball with the Warsaw Pact countries. The maintenance
l zation of American States, whose Organ of Consultation
authorized or ratified the action taken by the United
of this balance of power contributed in a very real way to

States in_the Cuban crisis. The NATO may also be cited


\~I I
·~1
although it is not strictly regional because of the participa-
: '!
'Ibid.
I,
t,i -g 1 !"

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98 llITE11NATION.o\L LAw 'T'Hl<'. Rrmn, 0.F' EXISTENC'E AND SEU' DEPENSE
99

international peace although, being an "armed peace," it Cd) An attack by the armed forces of a State on the land,
was far from the ideal sought in the articles of faith of the sea or air forces, or marine and air fleets of another State;
[ Jnited Nations. (e) The use of armed forces of one State which are
within the territory of another State with the agreement of the
Aggression Defined receiving State, in contravention of the conditions provided for
in the agreement or any extension of their presence in such
Following is the Definition of Aggre.ssinn adopted by territory beyond the termination of the agreement;
th':.' f}.N ~PnP:rnl Asi-Amhly on n~cember 14, 1974: (f) The action of a State in allowing its territory, which
it has placed at the disposal of another State, to be used by
Article 1 that other State for perpetrating an act of aggression a gainst a
third State;
Aggression is the use of armed force by a State against (g) The sending by or on behalf of a State of fl rmed force
the sovereignty, territorial integrity or political independence against anot:her St.gte of such gravity as to amount to thR ar.t.s
of another State, or in any other manner inconsistent with the listed al:Jove. 01 itR suh!';tantial ·;tn:nlve1,..,P.nt there.in.
r!hin t.Ar of the United Nations. as set out in this Definith:-n.
Article 4
Article 2
The acts enumerated above arc "1.ot exhaustive and the
The first use of armed forces by a State in contravention Security Cowwil may deterll)illf! tbi;\t ot;'J1~r ""t·" """<,t;t,.tt'= 1:1g-
of the Charter shall constitute prima fade evidence of an act of !!ression under the orff1.isions of tl1P. (;h1:n t.R, .
aggression although the Security Council may, in conformity
with the Charter, conclude that a determination that an act of Article 5
aggression has been committed would not be justifi'=d in the
light of other relevant circumstances, inrludiug the fact that 1. No consideration of whatever nature, whether politi-
the acts -:oncem-=d ,:,,;- tlu,ir rm'"'"''l'HmrA~ ATP. not. of i:mfficient cal, economic, military 0r other..·ise, may serve as a justifica-
gravity. tion for aggression.
2, A war of aggression is a crime against international
Article 3
peace. Aggression gives rise to international responsibility.
Any of the following acts, regardless of a declaration of 3. No territorial acquisition or special advantage re-
war shall, subject to and in accordance with the provisions of sulting from aggression is or shall be recognized as lawful.
Article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State Article 6
of the tE\rritory of another State, or any military orcupation,
however temporary, resulting f:.-"'"· i,ucb i.rwi:>si<rn <u aHa r.k or Nothing in this Definition shall be construed as in any
way enlarging or diminishing the scope of the Charter, in-
any annexation by the use of force of the territory of another
State or part thereof; cluding its provisions concerning cases in which the use of force
is lawful.
(b) Bombardment by the armed forces of a State against
the territory of anot her State;
Article 7
(c) The blockade of the ports or coasts of a State by the
:. -, i' armed forces of another State; ~ ; .. ,
i J: Nothing in this Definition, and in particular Article 3,
!1!ff1
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. ... ·. the right of self-determination,
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100 h'TERNJ\Tl0 MAL UW

freedom a nd independe nce, as derived from the Charter, of


peoples forcibly deprived of that right and referred to in the Ch::ipter 8
Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation among States in accor- THE RIGHT OF INDEPENDENCE
dance with the Charter of the United Nations, particularly
peoples under colonial and racist regimes or other forms of
alien domination; nor the right of these peoples to struggle to SOVEREIGNTY is the supreme, uncontrollable power
f~ I!
that end and to seek and receive support, in accorda nce with inherent in a state by which that state is governed. It is
the principles of the Charter and in conformity with the above-
"the supreme power of the State to command a nd enforce
mentioned Declaration.
obedience, the power to which, legally speaking, all inter-
Article 8 ests are practically subject and all wills subordinate."1 In
international law, it is this attribute that enables the state
In their interpretation and application the ahove provi-
sions lire inte,:related and each pro\ision should be consb uP.<l to make its own decision vis-a- vis other states and vests it
in tl1 A cnnt:AYt. nf H, ~ nt.h',',: provision. with competence to enter into relations and agreements
with them.
Sovereignty has two aspects: internal and external.
Internal sovereignty refers to the power of the state to
direct its domestic affa irs, as when it establishes its gov-
ernment, enacts laws for observance within its territory,
or adopts economic policies. External sovereignty, on the
other hand, signifies the freedom of the state to control its
own foreign affairs, as when it concludes treaties, makes
war or peace, and maintains diplomatic and commercial
relations. External soverP.ignty is more oft.en referred to .a~
indepP.ncl.ence.

lnP~l. of b1dependence

The right to independence is a natural aspiration of


peoples that. has, albeit onlv lately: rece ived international
recognition. Particularly during the period followi ng the
last World War, a resurgent spirit of nationalism and the
principle of self-determination gave unprecedented impe·

I
Garner, Introduction to Political Science, 238.

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IN T't;RNAT!ONAL LAW TT{E RICIIT OF I NDEPENDENCE 10~
102

tus to the attainment of freedom by a number of colonies in g:>oc faith in accordance with the maxim pacta sunt
and their s ubsequent admission to the international com- servanda. The principle of mare liberum will prevent it
m unity. It may be said that this trend had its auspicious from arrogating to itself the exclusive use of the open seas
beginning with t he establishment of the Republic of the to the detriment of other states. Under the laws of neu-
Philippines in 1946 and its ready recognition by the family trality, it must acquiesce in the exercise of certain bellig-
of nations. erent rights even if this migh t impair its own interests or
The movement toward independence is expressly those of its n ationals. Even within its own domain, in fact,
supported by the Declarat ion Regarding Non-Self-Govern- the state must submit to certain limitations on its inde-
ing Territor ies in Chapter XI of the Charter of the United pendence, like the rules requiring the maintenance of an
Nations. In Article 73, the members of the Organization international standard of justice, the observance of fun-
administering territories whose peoples have not yet at- d amental human righ ts, and the restriction of its territo-
tained a full measure of self-government pledge "to de- rial jurisdiction.
velop self-government, to tak e due account of the political
Inten·ention
aspirations of these people, and to assist them in the pro-
gressive development of their free political institutions In addition, the state must abstain from intervention.
according to the particular circumstanc~s of each territory Even as it expects its independence to be respected by
and its peoples and their varying stages of advancement." other states, so too must it be prepared to respect their
own in dependence. In other words, the right of independ-
Natnre of Independence
ence carries with it, by necessary implication, the correla-
Independence cannot be regarded as importing ab- tive duty of non-intervention.
solute freedom, for the sim ple reason, as Fenwick states, Intervention may be defined as an act by which a
that it only means freedom from control by any other state state interferes with the domestic or foreign affairs of an-
or group of states and not freedom from the restrictions other state or states t hrough the em ployment of force or
that are binding on all states forming the family of na- threat of force. Such force may be physical or, in the pres-
tions.2 Like the liberty of the individual who m ust s ubmit ent state of world affairs, even political or economic. Lack-
to Hmitations imposed for the welfare of the com1nunity, ing such pressure, the involvement of a state in the affairs
tbe independl:lnce of a state is of necP.ssity rn8tricted b:v the of another, even if unsolicited, cannt'"\t l-:>e considered i.nter-
requirements of the international society. vent.ion.
Thus, to cite a few examples, a state may not employ lnterYention is not s~nct-ioned. in international rela-
force or even the threat of force in its relations with other tions except only when it is exercised as an act of self-
states because th.is is prohibited by Article 2 of t he Charter defense or when it is decreed by the Security Council as a
of the United Nations. It may nof:refuse to observe treaties preventive or enforcement action for the maintenance:of .
international peace and security. These are the only; ..twg -"
2
Fenwick, 250.
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1()4_ IN1'ER.t-1.'\'l'I0NAL LAW THE RIGHT or, IrmP.PRNlW"lr.R
105

the Charter of the United Nations. Some writers would other kinds of aid with orders to use force if the distribu-
add a third justification for intenrention, and this is when tion of such goods was interfered with by the warlords or
such action is agreed upon in a treaty. Intervention may by lawless elements.
also be allowed when requested from sister states or from Earlier, as previously noted, a similar military con-
the United Nations by the parties to a dispute or by a tingent was organized by the United Nations but not for
state beset by rebellion. humanitarian reasons. This was when Iraq invaded and
The United Nations itself categorically binds itself occupied Kuwait in 1991 and the forces of the world or-
not ''to intervene in matters which are essentially within ganization, also led by the United States, turned back the
the domestic jurisdiction of any state," subject to the excep- aggressor and later required it to reduce its weaponry,
tions just noted. In the U.N. Declaration of the Rights and including its nuclear capability, as a precaution against
Duties of States, it is provided that "every State has the future aggression.
duty to refrain from intervention in the internal or external
affairs of any other State." The Charter of the Organization ThA nl'ago Doctrine
of American States is more unequivocal with the statement
that "no State or group of States has the right to intervene, In 1902, Great Britain, Italy and Germany estab-
directly or indirectly, for any reason whatever, in the inter- lished a blockade against Venezuela in order to force it to
nal or external affairs of any other State. The foregoing comply with certain contractual and other obligations
principle prohibits not only armed force but also any other owing to the blockading powers. This action was the sub-
form of interference or attempted threat against the per- ject of universal disapprobation and led to the formulation
sonality of the State or against its political, economic or by the Foreign Minister of Argentina of what is now popu-
cultural elements." Furthermore, "no State may use or larly known as the Drago doctrine. This doctrine was em-
encourage the use of coercive measures of an economic or bodied in the Hague Convention of 1907 through the pro-
political character in order to force the sovereign will of vision that "the Contracting Powers agree not to have
another state and obtain from it advantages of any kind." recourse to armed force for the recovery of contract debts
Recent events have called for a re-examination of the claimed from the government of one country by the gov-
law on intervention, especially where intervention is based ernment of another country as being due to its nationals."
on humanitarian grounds. One example is Somalia, where The force of this rule was later dissipated by the Por-
hundreds of thousands of civilians, including children and ter Resolution, nnder whicl, interv':lntion was pennitted if
women, were cimght in the ~rossfirB of vvaning factions the debt0r st9.te -refused a!, off~r to arbitrate the creditor~s
that confiscated and appropriated relief goods intended for <;laim, or having agreed to arbitrate, prevented agreement
the starving population. Revolted by the inhumane plight on the compromis, or having a.greed thereto, refused to abide
of the innocent victims, the United Nations sent a contin- by the award of the arbitrator. Neve1tlieless, it is doubtful if
gent of military .troops from several countries, primarily this qualification can be sustained now in light of the out-
""
the Uni tee( State's;

,,
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lawry of force by the Charter of the United Nations.
. . ._• that brought and distributed food and
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T HE RIGHT OF Ec.mALID'" 107

What is meant by the principle of equality, strictly


f'.lu~.rt'7'-r' ~ speaking, is that all the rights of a state, regardless of their
number, must be observed and respected by the interna-
'T'llF. RIGHT OF EQUALITY
tional conununity in the same manner that the rights of
ri.
I{ IN ARTICLE 2 of the Charter of the United Nations, it is
other states are observed and respected. In short, all states,
big or small, the powerlul as well as the weak, have an
announced that "the Organization is based on the principle equal right to the enjoyment of all their respective attrib-
of the sovereign equality. of all its Members." This is a rec- utes as members of the family of nations.
ognition of what has beendescribed as "an early premise of Accordingly, all members of the United Nations have
international law."1 The principle is more fully fleshed out each one vote in the General Assembly, all votes having
in the provision of the Montevideo Convention of 1933 that equal weight, and are generally eligible for positions in the
"states are juridically equal, enjoy the same rights, and various organs of the United Nations. Every state has the
have equal capacity in their exercise. The rights of each one right to the protection of its nationals, to make use of the
do not depend upon the power which it possesses to assure open seas, or to acquire or dispose of territory. When in-
its exercise, but upon the simp]P. fad nf ib: H'll'ii:i.t.P.n~P A~ A volved in war, a small state like the Malagasy Republic
·I"
person under international lavl'." would have the same right as China or the United States to
punish the cani.age of contraband or to have its captured
Essence of Equality
combatants treated as prisoners of war. Under the rule of
As understood in international law, equality among par in parem non habet imperium, even the strongest state
states does not signify parity in physical power, political cannot assume jurisdiction over another state, no matter
influence or economic status OT prestige. This is impossible how weak, or question the v£i.lidity of its acts in so far as
in the nature of things inasmuch as states, like individuals, they are made to take effect witJ.in its own territory. All
are necessarily subject to different conditions or circum- states, including the smallest and the least influential, are
stances that may preclude their uniform treatment in their also entitled to their dignity and the protection of their
interrelations. Indeed, equality does not even require honor and reputation.
equality in the number of rights since it is possible for one
state to be vested with more rights than another, e.g., a Legal Equality v. Factual Inequality
coastal state like China would have a right to a territorial But ev17,n frnm the viP,wpoint of strictly legal rules, it
sea as distinguisherl from a sta.ti? "0•npl1:>t':.'ly sun:ounded by is apparent that absolute equality among states is still a
land, like Bolivia or Afghanista n. distant and well nigh impossible as piration. Under the
Charter of the United Nations, for example, non-proce-
dural questions are decided by the Security Council only
'Wilson and Tucker, 100. with the concurrence of the Big Five, any of which may
;. , ~ defeat a proposa} through the exercise of the veto. This is
106
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108 ltrrEHNA'r·rnN4 r. L AW

true also with respect to the ratification of any proposal to


amend the Charter. Moreover, as previously emphasized, Chapter 10
this same group of states is entitled to permanent member-
ship in the organ, in contrast with all the other members, TERRITORY
which are elected for a term of only two years and are not
even eligible for irrunediate re-election.
With regard to the elective membership of the Security TERRITORY has already been defined as the fixed portion
Council, not all states have equal eligibility therefor, as it is of the surface of the earth inhabited by the people of the
11~I, provided in the 1965 amendments to the Charter that such state. The territory must be permanent and indicated with
members are to be distributed, and not equally at that, precision because its limits generally define the jurisdic-
~I
among several specified regions. Thus, five of them must be tion of the state. As previously observed, the tenitory
elected from the African and Asian states and only one can must be big enough to provide for the needs of the popula-
come from the East.ern European states. tion but should not be so extensive as to be difficult to
There is much to be said for the proposition that all administer or defend from external aggression.
states, regardless of their relative prestige and power in the The right to acquire territories is regarded as one of
international community, must be equal in the enjoyment the fundamental attributes of the state. Under our Consti-
of whatever rights they may be entitled to. But this rule of tution, authority to exercise the same may be inferred
equality itself sometimes poses serious questions of ine- from the war powers of the Congress and the treaty mak-
quality. This is so because it does not take into account the ing power of the President. Needless to say, this right can
realities of international life, including the greater stakes of be asserted only in accordance with the generally accepted
the more populous stat.es in the decision of questions in- principles of international law and always with due regard
volving the entire corrununity of nations. Such decisions for the territor.iF.tl integrity of othflr sta tes.. The Philippine~
may affect the interests, not of individual states as such, is committed to the renunciation of war for territorial ag-
but of the whole of humanity itself without distinctions as grandizement but, like other states, is not precluded from
to color, nationality or creed. acquiring additional territories through any of the meth-
In the General Assembly, for example, all members ods permitted under the law of nations.
have one vote regardless of the number of people they sepa-
rately represent, with the result that the decision of India, Acquisition and Loss of Territory
which has a p()pulation of almost one billion, would have
Territory may bP. ar,quired by dfacovery and occupa-
the same force, legally speaking, as th~ vote cast by G~bon,
tion, by prescription, by c8ssion, by guhj1.1g~tjon, and by
the population of which is on1y about 1.1 million. The rea-
son is that the right to vote, and to only one vote each, is accretion. It may be lost by abandonment or dereliction, by
cession, by subjugation, by prescription, by erosion, by
granted to the member-states as such instead of being ap-
revolution, and by natural causes.
portioned ~.IIfO}li( ~hat the Preamble to the Charter itself
calls "the peoples bf the United Natfons."
.. * !. •· ; 109
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110 lNTERNA1'IONAJ, f ,AW TERRITORY 111

Oiscovery and o,:,:mpt:tt.ion The inchoate title of discovery performs the function
of barring other states from entering the tenitory until the
Discovery and occupation is an original mode of ac- lapse of a reasonable period within w:hich the discovering
quisition by which territory not belonging to any state, or state may establish a settlement thereon and commence to
terra nullius, is placed under the sovereignty of the dis- administer it. If the claimant state begins exel'cising sov-
covering state. The territory need not be uninhabited pro- ereign rights over the territory, the inchoate title ripens
vided it can be established that the natives are not suffi- and is perfected into a full title. Otherwise, the inchoate
ciently civilized and can be considered as possessing not title will be extinguished and the territory will become res
rights of sovereignty but only rights of habitation. Thus, nullius again.
the discovery and ·occupation of the Philippine Islands in In the Island of Palmas Case, 1 title was disputed be-
1521 was justified on the ground°· that the inhabitants at tween the United States and the Netherlands to an island
the time did not have a degree of civilization regarded as situated within the boundaries of the Philippine Archipel-
sufficient by European standards. The same justification ago as ceded to the former by Spain under the Treaty of
was made in the case of the colonization of Africa and the Paris of December 10, 1898. The United States based its
Americas. claim primarily on the 1ight of discovery of the island by
Like the open seas, outer space is res communes and Spain, while the Netherlands asserted that it had pos-
not susceptible to discovery and occupation. According to sessed and exercised Rovereignty over the islands since
the Treaty on the Exploration and Use of Outer Space, 1677, or even earlier, b-v v,rtul':l of consenti,ms \\'1th the
outer space, i:n.cl11ding the moon and otb'3r celestirtl hodies, native princes.
is not i:tubjP.ct t.o :ni:it.ienal appropriat.ion by cl::iim of sover- While conceding that "the original title derived from
eignty, by means of use or occupation, or by any other discovery belonged to Spain," the arbitrator nevertheless
means. held inter alia:
(a) Requisites Discovery alone, without any subsequent act, cannot at
the present time suffice to prove sovereignty over the fa·land of
There are two requisites of a valid discovery and oc- Palmas (or Mie.ngas).
cupation. The first is possession and the second is admini- ... Even admitting that the Spanish title still existed as
stration. Possession must be daimed on behalf of the state inchoate in 1898 and must be considered as included in the
represented by the disroverer ::.nrl may be eff13ded through cession under Article III of the Treaty of Paris, an inchoate ti-
tle could not prevail over the continuous and peaceful display
a formal proclamation and the symbolic act of raising the
of authority by another state for such display may prevail even
national flag in the territory. But mere possession will not over a prior, definitive title put forward by another state.
suffice, as only an inchoate title of discovery is acquired by
the claimant state pending compliance with the second
requirement., which is the administration of the territory. ·~ ~ ...
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I: i t < '2 U.N. Rep. oflnt. Arb. Awards, 231.


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lmERNATIONAL LA\V TERR[TORY 113


11?.

In the Clipperton Island Case, however, title was


2
tions must concur, namely, the act of withdrawal and the
deemed acquired by France over an island it had formally ,ntention to abandon.
claimed but had never administered. The facts showed Where, for example, the forces of the state are driven
that a French Navy lieutenant, "cruising about one-half away from the territory by the natives, title is not thereby
mile off Clipperton, drew up, on board the commercial necessarily forfeited, as it may be that they intend to re-
vessel L'Admiral, an act by which, conformably to the t urn with the necessary reinforcements to suppress the
orders given him by the Minister of Marine, he proclaimed resistance.
and declared that the sovereignty of the Raid island begin- Of course, a different conclusion must be reached if
ning from that date belonged in perpetuity to His Majesty such an intention is not present and it is, on the contrary,
the Emperor, Napoleon III, and ,to his heirs and suci::es- p1ain that the sta te wishes to relinquish all claim to the
sorn." Thereafter, the vessel put off "-"'rithout lea11ing in the territory. In this case, the territory itself becomes res nul-
island any sign of sovereignty." lius or terra nullius, becoming open once again to the ter-
Finding that the island was terra 1111.l lius at tbl'll: ritorial ambitions of other states.
time, the arbitrator held in part:
Prescription
It is beyond doubt that by immemorial usage having the
force of law, besides the animus occupandi, the actual and not The suggestion in the Palmas Case is that, even on
the nominal taking of possession is a necessary condition of oc- the assumption that Spain had validly discovered and
cupation. This taking of possession consists in the act, or series
of acts, by which the occupying state red uces to its possession occupied the territory in dispute, the Netherlands could
the territory in question and takes steps to exercise exclusive nevertheless be regarded as having acquired the same by
authority there. Strictly speaking, and in ordinary cases, that virtue of prescription since it had been exercising sover-
only takes place when the state establishes in the territory it- eign rights over the disputed island for more than two
self an organization capable of making its law respected. .. . .
If a territory, by virtue of the fact that it was completely unin-
hundred years after its discovery by Spain, and the latter
habited, is, from the first moment when the occupying state had not interposed any objection during all that time. As
makes its appearance there, at the absolute and undisp11ted in municipal law, prescription in international law re-
p,.,,..<;J?.ssio:-1'. ,:,f that st~~.e. from that moment the taking rif pos- quires long, continued and adverse posse.c;.i;;ion t,n VP-c;t a~-
session is considered accomplished and the occup? tim, is for quisitive title in the claimant. Significantly, however,
mally completed.
there is as yet no rule in international law fixing the pe-
(b) Dereliction riod of possession necessary to transfer title to the terri-
tory from the fo1111er to the subsequent sovereign.
Ti:>1-ritory is lost by dP.reliction when the state exP,r-
cising· sovereignty over it physically withdra wP. from it Cession
with the intention of abandoning it altogether. Two condi-
Generally speaking, cession is a method by which ter-
·~ 'l ·i ritory is transferred from one state to another by agree-
..fq,;
fas A.J.J.L. 390 (1932).
1

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ment between them. While if is true that there is such a
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114 I m ERNATIONAL LI\W 'fEP..RITORY 11 5

concept as forced cession, acquisition of territory by ces- of the country through the action of the water or, more
sion is usually effected by such familiar transactions as effectively, by reclamation projects like those undertaken
sale, dona tion, barter or exchange, and even by testamen- in Ma nila Bay and the polders of Holland. Accretion also
tary disposition. covers the formation of islands, which, if occurring within
Examples are the purchase by the United States of the maritime belt of the state, correspondingly extends the
Alaska from Russia in 1867, the gift by Austria of Lorn breadth of its territorial sea. 3
bardy to France in 1859, and the exchange between Great In this connection, it should be noted tha t territory
Britain and Ger many.of the island of Helgoland and the may also be lost as a result of the operation of nature, as
territory adjoi~ing German East Africa in 1890. when an island is submerged to the bottom of the sea be-
Cessinn being egsentially .consensual, transfer· of title cause of a volcanic eruption. It is probably already possible
is effected upon the meeting of the minds of the parties at this time to achieve the same effect through a massive
a nd does not have to bide the actual delivery of the ceded bombardment or some such man-made method of destruc-
territory to the acquiring state. tion.

Subjugation Components of Territory


Territory is deemed acquired by subjugation when, 'I'he territory of the state consists usually of the ter-
having been previously conquered or occupied in the restrial domain, the maritime and fluvial domain, and the
course of war by the enemy, it is formally annexed to it at aerial domain. Some states, 1ike the Philippines, also
the end of that war. Conquest alone confers only a n incho- claim the continental shelf as part of their territory.
a te right on the occupying state; it is the formal act of
annexation that completes the acquisition. (a) The Terrestrial Domain
Hence, during the Japanese occupation of the Philip-
The teITestrial domain refers to the land mass, which
pines, sovereignty over our country did not pass from the
may be integrate, as in the case of Iran, or dismembered,
United States simply bec~.use of its inability to exercise it.
as in the case of the United Stl:l.tes, or partly bounded. by
By contrast, Ethiopia fell under 1ta1ian sovereignty when,
wa ter like Burma, or consist of one whole island like Ice-
.after its occupation by Italy during the war between them,
land. It may also be composed of several isla nds, like the
it surrendered to and was formally annexed by the latter
Philippines and Indonesia, which are known as mid-ocean
in 1935.
archipelagoes, as distinguished from the coastal archi-
Accretion pelagoes like Greece.

Accretion is a mode of acquiring territory based on


the principle of accessio cedat principali . . It is accom- ., , ..J
plished through both natural or artificial processes, as by --
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• "~ - 1rn INTERNATIONAL LA\\' T EP.HJ'I":)RY
117

(b) 'l'hP. Maritime and FlnviAl nomain on the middle of the bridge regardless of the location of the
channel underneath, unles~ othArwi.c:P. prn1; irlPrl hy th~
The maritime and fluvial domain consists of the bod- riparian states
ies of water within the land mass and the waters adjacent
to the coasts of the state up to a specified limit. This in- (?,) Rtly~
cludes the internal waters in the land-locked lakes, the
rivers a nd man-made canals within th':) hnd mass, and in A bay is a well-marked indentation whose penetra-
cert~n bays, gulfs and st:r:J:1it-.c:, RR well as the ex~r.Ti~l w::i- tion is in such proportion to the width of its mouth as to
ters in th~. territor is:il sea. contain land.Jocked waters and constitute more than a
mere curvature of t he coast. An indentation shall not,
(1) Riv1:>.,..~ however, be regarded as a bay unless its a rea is as large as
Rivers may be classified into national, multi-national, or larger than that of a semi-circle whose diameter is a
' international, and boundary. National rivers are those,
like the P asig River, that are situated completely in the
line drawn across the mouth of th at indentation.4
If the distance between the low-water marks of the
tenitory of one state as distinguished from the multi- natural entrance points of a bay does not exceed twenty-
national rivers, like the Congo River in Africa and the four miles, a closing line may be drawn between these two
Mekong River in Asia, that flow through the territories of low-water marks, and the waters enclosed thereby shall be
several states. An international river, like the Rhine and considered internal waters.~
the Danube, is one that is navigable from the open sea and The above rules do not apply to the so-called historic
is open to the use of vessels from all states. bays,6 whose waters have a lways been considered internal
Of special interest is the boundary river, like the St. by the intermi.tio11.al community notwithstancljng that
Lawrence River between Canada and the United States, their opePing.$ are morn than tweuty-four mi1':'s in width.
that divides the territories of the riparian states. In the Examples of historic bays are the Bay of Cancale in
absence of a specific agreement between such states, the France, the Bay of El Arab in Egypt, Chesapeake Bay in
boundary line is laid on the river according to the thalweg the United States, Hudson Bay in Canada and the Zuyder
doctrine, that is, on the center , not of the river itself, but of Zee in Holland.
its main channel
(3) The Territorial Sea
Where the bouT1dary river c~1anges its cowse by a
gradual a nd no'f!tJ.al procesR, such as J:Jcr.retion or erosion, The territorial s-9a may bP. de~crihed as the belt of wa-
the dividing line follows the new course; but if the devia- ters adjacent to the coasts of the sta te, excluding the in-
tion is violent and abrupt, as by avulsion, the boundary
line will continue to be laid on the old bed of the river, in
!' -i .
of
the absence a contra ry agreement. As for ;the dividing • Convention on the Territorial Sea and t he Contiguous Zone.
1958, Art. 7(2). t l j i }..
line on a bridge across a boundary river, t~ef a'."e is laid - ft"'
& Ibid., Art. :7{4}.! f ·
. 'Ibid.,.A1. ;1*.. i!1;_ ,
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f.
+ .. 51,
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1 lR OOERNATJONAL l..Aw Tul?Rl'I'n1~1i
1 rn

ternal waters in bays and gulfs, over which the state ever, to define the breadth of the territorial sea; and,
claims sovereignty and jurisdiction. moreover, the Conventions adopted therein were ratified
Traditionally, the breadth of the territorial sea was by only forty states. The Philippines did not ratify because
reckoned at three nautical miles, or a marine league, from of the absence of provisions recognizing the archipelago
the low-water mark. This rule was based on the range of doctrine it was advocating.
cannon at the time 1t was first proposed by the Dutch The second conference, which was held in 1960, also
publicist Bynkershoek, on the theory that a state could at Geneva, likewise left unresolved the question of the
claim only so much territory as it could defend. breadth of the ten-itorial sea.
However, many states later extended their territorial The third conference, called in 1970 by the United
seas, so that no uniform rule could be regarded as estab- Nations, resulted finally in the adoption of a new Conven-
lished in this regard. Countries with big navies under- tion on the Law of the Sea, which was signed in Jamaica
standably adhered to the traditional limit. Some states, like in 1982 by 119 of the 150 conferee-states. This Convention
India and Greece, claimed six miles, and others, like Russia became effective on November 16, 1994, after its ratifica-
and Greenland, insisted on twelve miles. Chile and Peru tion by more than the required 60 of the signatory states.
claimed up to t\ivo hundred miles, while archipelagoes in The new Convention provides among others for a uni-
general asserted that a different regime should be applied fonn brP.adth of twelve miles for the territorial sea, a con-
\\,jth respect to t.hem. Others, like Argentinll and Nica't'a- tiguous zone of twelve miles fr')m the outer limits of the
gua, claimed the seas above their continental shelves, to an territorial sea, and an economic zone or patnmonial sea
unspecified lirrµt, as part of their maritime belt. extending two hundred miles from the low-water mark of
(4) The UN Conferences on the Law of the Sea the coastal state.

Three international conferences have been called to (5) The Philipoine Territorial Sea
formulate a new law of the sea. These conferences have The claim of the Philippines to its territorial sea was
dealt with such controversial matters as the breadth of the based on historic right or title or, as it is often called, the
territorial sea, the use of straits for international naviga- treaty limits theory.
tion, the continental shelf, the concept of an exclusive eco-
nomic zone, the freedom of the high seas, the status of
The Philippines invoked the sovereignty exercised by
Spain more than three centuries over the Philippine ar-
archipelagoes and regime of islands, and others.
chipelago, including the waters adjacent to the islands
The first conference was held in 1958 at Geneva,
beyond the traditional three-mile limit. These waters were
Sv.>itzerland, and resulted in the adoption of the Conven-
embraced within the latitudes and longitudes specified in
tion on tbe Territ:or:ial Sea and the Contiguous Zone, the
the Treaty of Paris of December 10, 1898, by virtue of
Convent.ion ~n the High- Seas. a,\d the Conv€'ntion on
which Spain ceded the entire archipelago to the ·united
Fishing and the Living Resources of the High Seas, and
·' ~tates. Tpe United States, as transferee, asse~ ~over~
the Convention on the. C9ntinental Shelf. It failed, how-
'e ignty over auch waters as Philippi~e ten·~~ri~l 'st!:fSi ~ ' sp
' i ':>. :..;_ ~1 t• i· t:t' •.:
.. ~ f, !; ;~t-
~. '.~·!-'\" ..~{-.:, ..;. • .n:. ',• •
120 {i'iTERNATlONAL LAW 'fEHRIT'.)l{Y 121

too did the Republic of the Philippines when it -acquired territorial sea. Otherwise, the waters outside each of these
title to the whole archipelago on July 4, 1946. territorial seas wi11 be regarded as high seas and thus be
Our position was that international law should rec- open to all foreign vessels to the prejudice of our economy
ognize historic title to territorial waters as it recognizes and the national security.
the so-called historic bays. Accordingly, the territorial sea An archipelago is a group of islands, including parts
of the Philippines should embrace all the non-internal of islands, interconnecting waters and other natural fea-
waters comprised within the limits set forth in the Treaty tures which are so closely mterrelated that such islands,
of Paris, and other applicable laws, over which the Philip- waters and other natural features form an intrinsic geo-
pines and its predecessors in interest have been exercising graphical, economic and political entiL-y, or which histori-
sovereign rights for several hundred years without objec- cally have been regarded as such.
tion from other states. Hence, in defining the internal waters of the archi-
However, the new Convention on the Law of the Sea pelago, straight baselines should be drawn to conned ap-
now limits our tenitorial sea to twelve miles from the low- propriate points of the outermost islands without depart-
water mark of our coasts, as in the case of other states. jng radically from the general direction of the coast so that
the entire archipelago shall be encompassed as one whole
(6) The Archipelago Doctrine territory. The waters inside these baselines shall be con-
The Philippine position on the definition of its inter~ sidered internal and thus not subject to entry by forejgn
nal waters is commonly known as the archipelago doc- vessels without the consent of the local state.
trine. •rrus is articulated in the second sentence of Artic.lP. This theory was advocated by the Philippines, Indo-
I, Sec. 1 of the 1987 C0t1Etituti011, which follows: nesia, the Mauritius, r1ji, and the Bahamas, all archi-
pelagic states, and gained the support of the Organization
The national territory comprises the Philippine archipel- for Afric~n Unity, a number of Latin American states,
ago with all the islands and waters embraced therein, and all
Greece, Malta, Thailand, and the People's Republic of
the other territories over which the Philippines has sover-
eignty or jurisdiction, consisting of its ten·estrial, fluvial, and China.
aerial domains, including its territorial sea, the seabed, the The archipelago doctrine has been embodied in the
subsoil, the insular shelves, and other submarine areas. The 1982 Convention on the Law of the Sea, with the modifica-
waters around, between and connecting the islands of the ar-
chipelago, regardless of their breadth and dimensions, form
tion that archipelagic sealanes shall be designated over
part of' thr, internal water$ of the Philippines. the internal waters throngh whic.h fornign vessels shall
have the right of passage.
As t.hu~ dP,fjn,P.d, our 11ational territory comprehends
as many as 7,100 islands of varying sizes connected by (7) Basis of Article I of the 1987 Constitution
waters of diverse dimensions. Our position is that all these
islands should be considered one integrated whole instead Article I of the 1987 Constitution was based .o n RA
of being fragmented into separate units each with its own No. 3046, as amended by RA. No. 5446, which declares as
' - follows:

£.
. . ·;li;ll·Jt;
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tfi9!!).
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122 INTERNATIONAL LAw Tt,; m~ n v~'RY
123

I All the waters within the limits set forth in the


Trealy of Paris of December 10, 1898, between Spajn and the
is deeply indented or if there is a fringe of islands along
United States, the Treaty of Washington of November 7, 1900, the coast in the immediate vicinity.1 In either case, ac-
also between the two countries, and the Treaty concluded by count may be taken, in determining particular baselines
the United States and Great Britain on January 2, 1930, have of economic interests peculiar to the region concerned, the'
always been regarded as part of the territory of the Philip- reality and importance of which are evidenced by Jong
pines. 8
usage. Waters on the landward side of the baselines of the
2. All the waters around, between, and connecting the
various islands of the Philippine archipelago, irrespective of territorial sea form part of the internal waters of the
their width or dimensibn, have always been cons idered as nec- state.9
essary appurtenances of the land territory, forming part of the In the famous Fisheries Case, 10 the United Kingdom
of
inland or internal waters the ,Philippines.
questioned the use by Norway of the straight baseline
3. All the waters beyond the outermost islands of the method in defining its territorial waters. The Interna-
archipelago but within the limits of the boundaries set forth in
the aforementioned treaties comprise the territorial sea of the tional Court of J ustice held that it was "led to conclude
Philippines. that the method of straight baselines, established in the
4. The baselines from which the territorial sea of the Norwegian system, was imposed by the peculiar geogra-
Philippines is determined consist of straight lines joining ap- phy of the Norwegian coast; that even before the dispute
propriate points of the outermost islands of the archipelago. arose, this method had been consolidated by a constant
The definition of the baselines of the territorial sea of the and sufficiently long practice in the face of which the atti-
Philippine archipelago is without prejudice to the delineation tu.d~ of governrneut~ b8ars witness to the fact that thP.y
of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of did not consider it to be contrary to infa:~rn::it.irmj:11 law.~
the Philippines has acquired dominion and sovereignty.
{~) The Aerial Domain
(8) Metho<ls ()fDefining the Territorial Sea
The aerial domain is the airspace above the terrestial
The territorial sea may be defined, regardless of its domain and the maritime and flu.vial domain of the state,
breadth, according either to the normal baseline method to an unlimited altitude but not including outer space.
or to the straight baseline method. Both the Paris Convention on Aerial Navigation, which
Under the normal baseline method, the territorial sea was signed on October 13, 1919, and the Chicago Conven-
is simply drawn frow the low-watP.r mark of the coast, to tion on International Civil Aviation , concluded on Decem-
t.he hreadth claimed, following its sinuosities and curva. · ber 7, 1944, began with the express recognition that every
tures but excluding the internal waters in bays and gulfs. state "has complete and exclusive sovereignty over the
Under the straight baseline method, straight lines airspace above its territory." Where the upwru:d limits of
are made to connect appropriate points on the coast with-
1
out departing radically from its general direction. This Ibid., Art. 4(1), (2).
method may be employed in localities where the coastline
8
lbi,d., Art. 4(4). ;..l,f~}:
.. t ,;. ...
"Ibid., Art. 5(1) .
10
;,,1· i h·
I.C.J. Report::i (1951) 116.
~ ·;.,;! ·»·t1h
lNTERNATIOaAL f ,AW
124

the aerial domain ends i~ a nother m!:lti".P.T, howeYer, A~


Chapt':"r 11
f::nggP-sted by the fnllowing rem'°'rkR:
Under the tenns of existing international conventions JURISDICTION
and customary international Jaw, States have complete and ex-
clusive sovereignty in the airspace above their territories and
territorial waters. The concurrent existence of a region in space JURISDICTION is the authority exercised by a state over
which is not subject to t he same regime raises such q1J~st.ions persons and things within or sometimes outside its teni-
as where airspac:e ends and where outer space begiM Tt. was
noted tb<>~. t.h P.se limits de :nnt. nP.cessarily coineiAP " tory, subject to certain exceptions. Generally speaking, it
may be classified a.s either personal or territorial. More
spP.Ci.fically, jurisdiction may be exercised by a state over:
(a) its nationa ls; (b) the terrestr ial domain; (c) thP roari-
time and fluvial domain; (d) the continental shelf; (e) the
open sea s; (f) the aerial domain; (g) outer space; and (h)
other territorie.s.

Personal Jurisdiction
Personal jurisdiction is the power exercised by a state
over its nationals. It is based on the theory that a national
is entitled to the prntection of his state wherever he may
be and is, therefore, bound t.o it by a duty of obedience and
allegiance. This duty follows him even when he is outside
the territory of his state and he may not ordinarily be
excused from it unless he is prepared to renounca his own
nationality. At that, some states do not even allow this
under the doctrine of indelible allegiance. The fact that
persom!.l jurisdiction is not easy to enforce does not, of
course. detract from the lBgfl.l po·wer posBess~d hy the state
over it:: nationals abroad.
An example of the assertion of its personal jurisdic-
tion by the Republic of the Philippines is found in Article
of
15 the Civil Code, which provides that '1aws relating to.
family rights and duties, or to the status, condition and.
11Report of U.N. ad hoc Commil;t® on Peaceful Use of Outer
125
Space, July 14, 1959.
., ..
.·. _i
126 TNTF.RNATIOtrJ\J, LA\ll
,hTRri::m r.n r:N
127

legal capacity of persons, are binding upon citizens of the


or outside our territory, should forge or counterfeit Philip-
Philippines, even though living abroad." Another is Article
pine currency, utter such spurious securities or commit
16, under which "intestate and testamentary succession,
any crime against our nation al security or the law of na-
both with respect to the order of succession and to the tions.
amount of successional rights and to the intrinsic validity
of testamentary provisions, shall be regulated by the na- Teriitorial Jurisdiction
tional law of the person whose succession is under consid-
eration, whatever may be the nature of the property and The general rule is that a state has jurisdiction over
regardless of the country wherein said property may be all persons and property within jts territory. As held in
found." Jurisdiction to tax our citizens, even if not residing The Schooner Exchange v. McFaddon, 3 "The jurisdiction of
in the Philippines, is also provided for in our Revised In- the nation within its own territory is necessary, exclusive
ternal Revenue Code for income received by them "from all and absolute. It is susceptible of no limitation not imposed
sources.''1 by itself." This rather sweeping statement is, however, as
In Joyce v. Director of Public Prosecution, 2 the defen- previously suggested, subject to certain important excep-
dant, better known as "Lord Haw Haw," challenged his tions to be discussed shortly.
conviction in Great Britain for high treason, contending Personal jurisdiction antedated territorial jurisdiction
that be was not a British subject. It appeared that he had but the latter is more effective because it is asserted by the
lived in the country for eighteen years and had misrepre- state over persons and property within its immediate con-
sented himself as its national for the purpose of obtaining trol ~nd subject to its coercive processes. Nevertheless, the
a British passport that enabled him to go to Germany, for state cannot e.xercise jurisdiction even within its own ter-
which he subsequently broadcast anti-Allied propaganda. ritory over:
The House of Lords, in aflirming the decision, held that
(1) Foreign states, heads of states, diplomatic repre-
although he was admittedly not a British subject, he had
sentatives, and consuls to a certain degree.
nevertheless "by his own act . . . maintained the bond
which while he was within the realm bound him to his Foreign states and their heads are exempt because of
Sovf\reign." the sovereign equality of states and on the theory thl:lt a
Indeed. e,,en ",ithout such special circumstances as contrary rule would dfaturb the peace of na tions. Diplo-
mats and consuls enjoy the exempt1on in order that they
were established in that case, an alien may be held subject
to the laws of a state whose national interest he has vio- may have full freedom in the discharge of their official
functions.
lated, a nd notwithstanding that the offense was commit-
ted out.side its territory. Article 2 of our Revised Penal (2) Foreign state property, including embassies,
Code, for instance, punishes any person who, whether in consulates, and public vessels engaged in non-commercial
activities.
1
Sec. 21.
2
House of Lords, Dec. 18, 1945; Am: J ourual,VJ>l, 40 (1946), 663.

;;,
.
128 hrrERNA''''"NAr. L AW .] 1_1R1<::mn r ION 129

By fiction of law, public vessels are regarded >I!'\ P.x- which the free passage was granted would be defeated,
tensions of the territory of the foreign state. and a portion of the military force of a foreign independent
The inviolability of embassies and consulates is dis- nation would be diverted from those national objects and
cussed in Chapters 12 and 13. duties to which it was applicable, and would be withdrawn
(3) Acts of state. from the control of the sovereign whose power and whose
As explained in Underhill v. Hernandez, 4 "Every sov- safety might greatly depend on retaining the exclusive
ereign state is bound to respect the independence of every command and disposition of his force.'.e
other sovereign state, and the courts of one countrJ will (6) Such other persons or property, including or-
not sit in judgment on the acts of the government of an- . ganizations like the United Nations, over which it may, by
other, done within its own territory. Redress of grievances agreement, waive jurisdiction.
by reason of such act must be obtained through the means Examples of such agreements are the Convention on
open to be availed of by sovereign powers as between the Privileges and Immunities of the United Nations, the
themselves." Convention on the Privileges and Immunities of Special-
(4) Foreign merchant vessels exer cising the rights of ized Agencies, and the RP-US Bases Treaty, which modi-
innocent passage or arrival under stress. fied the customary exemptions under (5), above.
Innocent passage means navigation through the ter-
ritorial sea of a state for the pur pose of traversing that sea Land Jurisdiction
without entering internal waters, or of proceeding to in-
Save in the foregoing cases, everything found within
ternal waters, or making for the high seas from internal
waters, as long as it is not • prejudicial to the peace, good
the terrestrial dom ain of the state is under its jurisdiction.
order or security of the coastal state.
5 Nationals and aliens, including non-residents, are bound
by its laws, an d no process from a foreign government can
Arrival under stress or jnvoluntary entrance may be
take effect for or against them within the territory of the
due to lack of provisions, nnseaworthiness of the vessel,
local state with out its permission. Also, as against all
inclement weather, or other cases of force majeure, like
other states, the local state has exclusive title to all prop-
pursuit by pirates.
erty within its territory,7 which it may own in its own cor-
(5) For eign armies passing through or stationed in
porat.e capacity or regulate when under private ownership
its territories with its permission.
through its police power or forcibly acq•1ire through the
It bas been held that ". .. without any express decla- power of eminent domain ~ nr.h property is also subj<:>r.1-. t o
ration waiving jurisdiction over the army to which th is its t rudng p n w Ar.
right of passage has been granted, the soYereign who
would attempt to exercise it would certainly be considered
as violatin g his faith. By exercising it, the purpose for

' 168 U.S. 250. 6


The Schooner Excha nge v. McFaddon, supra.
5
Convention on the.Territorial Seas, Art. 14, Secs. 2, 4. 'Wilson and Tucker, 111.
I,

Ii ;.
n1
130 ImERNA'l'IONAL LAw ,) t lTIT~l\l/"" 1'1 ()N
131

Ml=l.ritime and Fluvial Jurisdiction under the jurisdiction of the state whose flag the vessel
flies.
Also as a general principle, the internal waters of a The real problem is in t he deten11ination of the na-
state are assimilated to the la nd mass and subjected to the ture or effects of the offe nse by the coastal stat.e for the
same degree of jurisdiction exercised over the terrestrial purpose of ascertaining whether or not it shall assume
domain. Covered by this rule are the so-called enclosed jurisdiction. In the Antoni Case, 10 for example, the Su-
waters, such as the land-locked lakes, national rivers a nd preme Court of Mexico h eld that the murder of a French-
man-made canals. man by another Frenchman on board a French merchant
Civil, criminal . and administrative jurisdiction is ex- vessel in a Mexican port did not distu rb the peace of the
1

ercised by the flag state over its public vessels w herever port. In the Windenhus Case,11 however, the United Stat.es
they may be, provided they are not engaged in commerce. decided that the murder of a Belgian by another Belgian
1
As observed in The Schooner Exchange v. McFaddon, • on board a Belgian merchant steamer in the port of New
"National ships of war entering the port of a friendly J ersey was of such a nature as "to disturb tranquillity and
power open for their reception are to be considered as ex- public order on shore or in the port."
empted by the consent of that power from its jurisdiction." In any event, assuming that there is a difference be-
Regarding foreign merchant vessels docked in a local tween the two rules, our own Supreme Court has held that
port or bay, jurisdiction is exercised over them by the the English rule is applicable in this country. Thus, al-
coastal state in civil matters, but criminal jurisdiction is though mere possession of opium aboard a foreign mer-
determined according to either the English rule or the chant vessel in transit through our waters is not consid-
French rule. U nder the former, the coastal state shall have ered a breach of our public order, 12 smoking of the drug on
jurisdiction over all offenses committed on board such board such vessel will produce pernicious effects within
vessels, except only where they do not compromise the our territory and is, therefore, triable by our courts. 13
peace of the port.,,a Under the latter, the flag state shall Tne jurisdiction of the stat.e over its interior waters is
have jurisdiction over all offenses committed on board more exclusive than that which it exercises over its terri-
s uch vessels, except only vvhere they compromise the torial waters, as will appear later. Nevertheless, subject
9
peace of the port. only to a few exceptions, it is the right of the coastal state
It is evident that tbe~ is no i::uhstantial distinction to enforce all its laws to the full extent in its t.erritorial
between the two rules inasmuch as, under either, offenses waters ·and in proper cases to bar both public and mer-
committed on board the foreign merchant vessel shall be char1t foreign vessels from entering the same. It may even
triable by the territorial sovereign when they constitute a use force, if necessary, to prevent any encroachment on its
disturban ce of its peace and all .o ther offenses shall be territorial integrity. ln the famous U.S.S. Pueblo incident,
10
Hudson, Cases, 601. '.
"'Supra. ll Ibid. , 602.
8 11
Windenhus Ca§e~ infra. U.S. Y. Look Chaw, 18 Phil. 573.

l .. .
~ Cases of the Sally and the Newion. Fenwick, 314.
13
People v. Wong Cheng, 46 Phil. 729.
.~ i !
.
!.
r.
~ ~

..
182 l h"fEH.NATl0!'1 Al. LA'IIJ J !JRISDIC'I'l01'1 133

for instance, a n America n vessel was seized and its crew above regulations within its territory or territorial sea."14
interned by North Korea for alleged infringement of its The contiguous zone may not, however, extend more than
territorial waters. twelve miles from the coast of the state. 15
As previously noted, the 1982 Convention on the Law Under the 1982 Convention on the Law of the Sea,
of the Sea, has fixed a uniform breadth for the territorial the contiguous zone also extends twelve miles, but from
sea at twelve m iles from the low-water mark of the coast. the outer limits of the territorial sea.
U nder the archipelago doctrine espoused by the The ContiP.':'tt,tal Shelf
Philippines, ''the waters around, between and connecting
the islands of the archipelago, regardless of their breadth The continental shelf refers to: (a) the seabed and
and dimensions, form part of the internal waters of the subsoil of thz submarine areas adjacent to the coast but
Philippines." As internal waters, they are subject to the outside the area of the territorial sea, to a depth of two
exclusive jurisdiction of the Philippines. However, al- hundred meters or, beyond that limit, to where the depth
though this claim has been substantially accepted in the of the superjacent waters admits of the exploitation of the
1982 Convention on the Law of the Sea, it is provided natural resources of the said areas; and (b) to the seabed
therein that archipelagic sealanes are to be laid on these and subsoil of similar areas adjacent to the coasts of is-
waters over which foreign ships will h ave the right of pas~ lands.16
sage as if they were open seas. Thus, a foreign vP.ssel need The coastal state has the sovereign right to explore
not go around our internal wa ters but may use these ar- the continental shelf and to exploit its natural resources17
chipelagic sealanes in negotiating the dist1:1.nP.P. from one a nd for this purpose it may erect on it such installations
point. of the open s~a to another. and equipment as may be necessary. 1~ But this right shall
not affect the legal nature of the superjacent waters as
TitP. Conti(!'Uous 7,onP. open seas or of the airspace above such waters and their
It is noteworthy that, besides extending tbe limits of use as such by other states shall not be impaired or dis-
19
their territorial sea beyond the traditional three m iles turbed. The coastal state is allowed to establish on the
from the low-water mark, some states have claimed a open seas immediately above the installations a safety
"protective jurisdiction" over what is called the contiguous zone with a radius of fivP, hundred meters ovP.r which it
zone. This practic~ has been confirmed by the Convention may exercise jurisdiction for the protection of its prnpPr-
on the Territorial SP.::i and the Contiguous Zone, where it ties underneath.?,0
is provided that "in a zone of the high seas contiguous to
14
its territorial sea, the coastal state may exercise the con- Art. 24.
15
; ~ trol necessary to: (a) prevent infringement of its customs, Ibid.
16
Convention on the Continento.l Shelf, Art. 1.
,2 1~ ~cal, immigration or sanitary r egulations within its terri- 11
Ibid., Art. 2.
-f~.:·ui..tAJu·r or territorial sea, and (b) punish infringemenit of the 18
Ibid., Art. 5, Sec. 2,

. k· . ·t 'r
'~
• ·•
y
~
·~
I

• •.
t 19

20
Ibid., Art. 3.
Ibid., Art. 5, Secs: ~,,;3!
;:11 "_ J . ;._!ffh) I. •• .,
~· l l 1· ! ~
• l ' _··'f !• '
rn4 TNTER!{ATIONAL L AW IT (: R!S['[(:TW!•l 135

The above rights are exclusive in the sense that if the juris diction when. they are within its territory, when j"uris-
coastal state does not explore the continental shelf or ex- diction is waived or cannot be exercised by the territorial
ploit its natural resources, no one may undertake these sovereign, or wh~n ~·.1 i:h u<:>:::~i:l~ i:n P, m, H1P. npP.11 ~P.i::i~
activities or make a claim to the continental shelf without
the consent of the coastal state.
21 THE LOTUS CASE
P.I.C.J. Ser. A:, No. 10, 1927,
The Patrimonial Sea Hudson, World Ct. Rep. 20
The exclusive economic zone or the p atrimonial sea, Facts: The Lotus, a French steamer, and the
extends two hundred nautical miles from the coast or the Bozkourt, a Turkish vessel, collided on the Aegean Sea,
baselines. All living and non-living resources found outside territorial waters, resulting in the sinking of the
therein belong exclusively to the coas tal sta te. latter ship and the death of several Turkish nationals. The
The concept of the patrimonial sea was adopted in the Lotus docked at Constantinopole, where its officer of the
• Declaration of Santo Domingo, by the Caribbean states, in watch at the time of the accident, a French national, was
1972, the General Repo1t of the African States Regional subsequently convicted of manslaughter by the Turkish
Seminar on the Law of the Sea, h eld in Yaounde in 1972, courts. France protested on the ground, among others,
and the Addis Ababa Declaration of 1973, adopted by the that the matter was outside the jurisdiction of Turkey
Council of Ministers of the Organiza tion of African Unity, inasmuch as the collision had taken place on the open
and has also been formally proposed by Kenya. seas.
'I'he patrimonial sea is now prouidea for in the re Held: ''The offense for which Lieutenant Demons
CP.11tly ratified 19~?. r.nnwmtion on the Law of the S€a. appears to have been prosecuted was an act of negligence
or imprudence-having its origin on board the Lotus
The Open S-eas whilst its effects made themselves felt on board the
Bozkourt. These elements are legally entirely inseparable
The open seas or the high seas are res communes and
so much so that their separation renders the offense non-
available to the use of all states for purposes of navigation,
existent. Neither the exclusive jurisdiction of each to the
flying over them, laying submarine cables or fishing. In
occurrences which to0k place on the respective ships
times of war, hostilities may be waged on the open seas.
would appear calculated to satisfy the requirements of
A state may exercise jurisdiction on the open seas in justice and effectively to protect the interests of the two
the folkn.ving in~t.~n.r.es: Stat.es. It is only natur al ~httt each should be able to Pxei:--
(1) Over its vessels. The flag state has jurisdiction cise jurisdiction and to do so in respect of the incident as a
over its public vessels at all times, whether they be in its whole. It is, therefore, a case of concurrent jurisdiction."
own territo1y~.in the territory of other states or on the open It should be noted, however, that Article 11 of the
seas. Mercn~ht vessels, on the other hand, are under its Convention on the High Seas, signed at Geneva in 1958,
21 [bis]r., i.t"t"."2.
,t ·.
provides as follows:
-
l~h INTBHl'JJ\TIOl'IAL ! -~W ,J !'RISDlCTICN
137

In the event of a collision or of any other incident of navi-


ous or unabate<l; othe1wise, it will be d~emed to have
gation concerning a ship on the high seas, involving the penal
or disciplinary responsibility of the master or of any other per-
"cooled:, and c~n nn k,n_ger be msumed. 21
son in the service of the ship, no penal or disciplinary pro·
ceeding may be instituted against such persons except before AP.l'·iql_ Judsdiction
the j•Jdi.cilil <>r administrative authorities either of the flag
i:th,1t.P. m of the state of..-,hich such peTSon is a national. Since the invention of aircraft is a comparatively re-
cent development, there are no traditional rules in inter-
(2) Over pirates. Pirates are enemies of all mankind national law regarding the rights of the subjacent state to
and may be captured on' the open seas by the vessels of its aerial domain. Conventional rules are also inconclusive
any state, to whose territory they may be brought for trial as they are based mostly only on a network of bilateral
and punishment. Where a pirate vessel attempts to escape agreements that do not have universal application. None-
into the territorial waters of another state, the· pursuing theless, the consensus appears to be that the local state
vessel may continue the chase but is under the obligation has jurisdiction over the airspace above it to an unlimited
of turning over the pirates, when captured, to the authori- height, or at the most up to where outer space begins.
22
ties of the coastal state. Accordingly, and as a corollary to this rule, no foreign
Piracy is committed for private ends, not political mo- aircraft, civil or military, may pass through the aerial
tives. Insurgents may, therefore, not be treated as pirates. domain uf e state without its consent The shooting down
(3) In the exercise of the right of visit and search. during the Eisenhower administration of an American
Under the laws of neutrality, the public vessels or aircraft plane alleged to be flying at the time over Russian air-
of a belligerent state may visit and search any neutral space was sought to be justified under this principle.
merchant vessel on the open seas and capture it if it is As a result of the various agreements among states
found or suspected to be engaged or to have engaged in regarding the use of their aerial domains, the following so--
activities favorable to the other belligerent.is called "five air freedoms" have been the subject of varying
(4) Under the doctrine of hot pursuit. If an offense degrees of recognition:
is committed by a foreign merchant vessel within the ter- (1) The freedom to fly ::i.cross foreign territorv with
ritorial waters of the coastal state, its own vessels may out landing.
pursue the offending vessel into the open sea and upon (2) The freedom to land for non-traffir. purposes.
capture bring it back to its territory for punishment. To be
(3) The freedom to put down traflic origjn~ting in
lawful, the pursuit must be begun before the offending
the state of the aircraft.
vessel has left the .territorial water!';, or the contiguous
zone of the coastal state with respect to violation of rights (4) The freedom to embark traffic destined for the
enforcible thereon. Moreover, the pursuit must be continu-
state of the aircraft.
(5) . The freedom to embark traffic destined for or to
put dovm traffic originating in a third state.
22
• Laurel, 85. =
n See Hague Conventio~ f U!·; P~claration of London of 1909. 2
• Oppenhei.m-Lauterpacht, 554.
I

138 INTERNATIONAL LAW ,J URISOJCTION 139

Under the Convention on Offenses and Certain Other damage that may be caused by such n~jP.l".1-. to anct11P.r
Acts Committed on Board Aircraft, concluded on Septem- state or to any person.2.;
ber 14, 1963, it is the state of registration of the aircraft
Other TerritoriP.!,:
that has jurisdiction over offenses and acts committed on
board while it is in flight or over the high seas or any other A state may, by vi.due of customary or conventional
area outside the territory of any state. No other state may international law, extend its jurisdiction beyond its terri-
exercise jurisdiction over such aircraft except when: tory and over territory not falling under its sovereignty.
This may be effected in the following ways:
(1) The offense has effect on the territory of such state;
(2) The offense has been committed by or against a na- (1) Through assertion of its personal jurisdiction
tional or permanent resident of such state; over its nationals abroad or the exercise of its right to
(3) The offense is against the security of such sta ta; punish certain offenses committed outside its territory
(4) The offense consists of a breach of any rules or against its national interests even if the offenders are non-
regulations relating to the flight or maneuver of aircraft in resident aliens.
force in such state; (2) On the strength of its r elations with other states
(5) The exercise of jurisdiction is necessary to Msure or territories, as when it establishes a colonial protector-
the ob~ervance of ar>.y obl:igation ,;,f ':'.'".'h ,;:t<> ~<> 11nrl"1r <I mnlfi- ate, or a condominium, or administers a trust territory, or
l R tAT'-" I intAt n sit.imu1l RS l'P.P.m Ant..
occupies enemy territory in time of war.
Outer Snace (3) As a consequence of the waiver of jurisdiction by
the local state over persons and things within its territory,
Like the open seas, outer space, or the region beyond illustrated by the foreign army stationed therein which
the earth's atmosphere, is not subject to the jurisdiction of remains under the jurisdiction of the sending state or by
any state. Outer space, including the moon and other ce- the exceptions to the English and French rules on criminal
lestial bodies, shall be free for exploration and ·use by all jurisdiction over foreign merchant vessels.
states without discrimination of any kind, on a basis of (4) Through acquisition of extraterritorial rights. In
equality and in accordance with international law. It is this connection, exterritoriality must be distinguished from
also not ~ubject to national appropriation by claim cf sov- extraterritoriality in that the former refers to the exemp-
ereignty. bv m el'l!.ls of uRe or OCC'l1 pation or by a ny other tion of persons and property from the local jurisdiction on
me::in.s. the basis of international custom whereas the latter ap-
Astronauts shall be regarded as envoys of mankind. plies only to persons and is based on treaty or convention.
But a state launching an object into outer space shall re- Extraterritoriality has become discredited because of the
tain.jurisdiction and control over such object, and over any. rise of nationalism and the sovereign equality of states.
personnel thereof, while in outer space or on a celestial But exterritoriality, as illus~r~ted by the immunities of the
body. The state shall also be internationally liable for any-
2r. : f ,::.·i
'
Jo. - . . ~
.. . ,.

,_ See Treaty o~ the Ptj.nu


c1 !_e~ Governing the Activities of
States m the E~ploratwn a~~ gs t1<:t~p:lr
Space.· .
.
.
, : ~-t i;.
'
1,1t
. ·.· .r "~,-1
!
.
r--r--

I" ii Thlt'1WI\IA1'I0NAL L AW
140
i
I
l head of state in a foreign count.1·y, remains a rn~pPi::ted
principle of international law.
Chapter 12

(5) Through the enjoyment of easements or servi- THE RIGHT OF T,F.GATION


tudes, such as the easement of innocent passage or the
easement or arrival under stress. In the Portuguese En- THE EXERCISE OF THE RIGHT OF LEGATION is one of
claves Case,20 for example, the International Court of Jus- the most effective ways of facilitating and promoting inter-
tice held that Portugal had a right of passage through course among st at es. Through the active right of sending
Indian territory in order to reach its own territory. This diplomatic representatives and the passive right of receiv-
right was limited "to"the extent necessary for the exercise ing them, states are able to deal more directly and closely
of Portuguese soverei~ty over the Enclaves and subject to with each ot her in the improvement of their mutual inter-
the regulation and control of fo.dia, in resped. of private ests. Being pure1y consensual, the maintenance of diplo-
pP.T i::nns, ci,·il offici ~ l ~ i:i rn:l goods in gen em1 " matic relations is not a demandable right on the part of
either the sending or the receiving state HoweVfir, recog-
nizing the many benefits avail.8.ble from contact ·with the
family of nations, practically all states have availed them-
selves of and are now exercising the right oflegation.
Agents of Diplomatic Intercom·se
Diplomatic relations are normally conducted through
the h ead of state, the fc.reign secretary or minister and the
members of the diplomatic service. Sometimes the head of
state may also appoint special diplomatic agents charged
with specific ceremonial or political duties. Envoys cere-
monial are usually sent to attend state functions like a
coronation or a jubilee while envoys political may be
commissioned t o negotiate with a particular state or to
participate in an international conference or congress. In
the latte1· case, there is no need to accredit them to the
state. where the sessions ar.e being held 1 nor 1.s it necessary
that there be regular diplomatic relations between that
state and their own .
.,. -:;
I
Oppenheim-Laut.erpacht, 775-776.
26
International Court of Justice. 141

I'*
~
Ii ] 4-?. !NTBRNAT!ONAL f ,AW 'l'IIE RIGHT OF Lf.GAT!ON 14.q

ll The Head of State significance or delicacy as to warrant no less than what is


known as a "summit meeting," the conduct of external
'l'he head of state, be he monarch or president, is re- affairs is now generaHy entrusted to the foreign secretary
garded as the embodiment of or at least represents the or minister.
sovereignty of his state. Accordingly, he is entitled to cer-
Under the municipal law of most states, the foreign
tain immunities and honors befitting his status. His per-
secretary is the immediate representative of the head of
son being regarded as sacrosanct, he has a right to special
state and directly under his control. As such, he can make
protection not only for his physical safety but for the pres-
binding declarations on beha1f of his state on any matter
ervation of his honor or reputation as well. His quarters,
falling within his authority, such as questions re1ating to
archives, property, and means of transportation are in-
recognition nf states or gO\rernments and the settlement of
violate under the principle of exterritoriality. He is also
international claims against t he state. 5 The foreign secre-
exempt from criminal jurisdiction and likewise from civil
tary is also the head of the foreign office and has direction
jurisdiction, except where he himself is the plaintiff, and is
of all ambassadors and other diplomatic representatives of
not subject to tax or to exchange or currency restrictions.
Ceremonial amenities are also due him unless he is trav- his government.
eling incognito. 2 0-ipl.o matic Envoys
In the case of Mighell v. Sultan of Johore ,3 suit was
brought for breach of a promise to marry allegedly made The regular or day-to-day conduct of international af-
by the defend ant who had represented himself as a pri· fairs is entrusted to the members of the foreign service
vate individual. The action was dismissed when h e re- who are accredited by the sending state as its permanent
vealed his real identity as head of an independent state. envoys to represent it in the states with which it is main·
By contrast, a civil claim for money due the plaintiffs was taming diplomatic relations. The development of this serv-
allowed by the French courts against former Queen Isa ice was the offshoot of the practice of establishlng perma-
bela of Spain, then living in Paris.{ Jurisdiction was as- nent legations which became general during the seven-
sumed because she had already been deposed at the time teenth century.
and was no longer entitled to royal prerogatives. The heads of these diplortatic m.issions aI8 classified
as follows by the Convention on Diplomatic Relations.
The Foreign Secretary
which was signed at Vienna in 1961:
It was common before for heads of state to personally (1) Ambassadors or nuncios ::ll'.~rE'ii1t.ed to heads of
undertake the function of diplomatic .negotiations, but the state.
practice has now largely fallen into disuse. Except ou nrre (2) Envoys, ministers or internuncios a.ccredited to
occasions when the matter under consideration is of such heads of state.
2
lbid. 5
Case concerning the Legal S tatus of Eastern Greenland, de·
~ L.R. (1894), 1 Q.R Div. 149. cided April 5, 1933, by the Permanent Court of International Justice,
• Oppenhellll,-UJ,Uterpacht, 761. . "
Oppenheim-Lauterpacht, 765,-766. l
• y Jj
lJ.
I
llITEilll,\TIONhL LA~.Y
T HI!: R u.:m · 0P I ·~X;ATION 14n
141

( 3) Charges d'affaires accredit~cl. to mini.~~p,~ for powers or attributes. It is nonetheless important in watch-
6
ing over diplomatic privileges a.nd honorR :m.d ha.s at time.q
foreign affairs. acted officially in the protection of the rights of its mem-
The classification of diplomatic representatives was bers.
considered significant before because direct communica-
tion with the head of state depended then on the rank of Appointment of Envoys
the diplomat and, moreover, only the powerful states were
regarded as entitled to send envoys of the highest rank At The Diplomatic Convention provides that the class to
prnsent, however, dipk,i_natic matters are usually dis- which the heads of their missions are to be assigned shall
cussed n ot with the h ead of state but with the foreign sec- be agreed upon between the states concemed. 8 Moreover,
retary regardless of the diplomat's rank Moreover, it has the sending state must make certain that the agrement of
become the practice now for even the smallest ·and weak- the receiving state h as been given for the person it pro-
\ est states to send diplomatic representatives of the highest poses to accredit as head of the mission to that state.9
rank, even to the major powers. The appointment of diplomats is not merely a matter
It may be said, therefore, that the distinctions among of municipal law because the receiving state is not obliged
the members of the diplomatic service are important only to accept any representative who is persona non grata to
in connection with matters of protocol or the grant of spe- it. Indeed, there have been cases when accredited repre-
cial honors. In other respects, the various diplomatic sentatives were rejected, resulting in strained relations
agents enjoy substantially the same prerogatives regard- between the sending and receiving states. For example, an
American minister was not received in Italy for having
less of rank.
previously protested in a speech the annexation of the
The Diplomatic Corps Papal States by Italy; and when next accredited to Austria
The diplomatic corps is a body consisting of the dif- he was also rejected, this time because he was married in
ferent diplomatic representatives who have been accred- a civil ceremony to a Jewess. The United States govern-
ited to the same local or r eceiving state. It is headed by a ment considered these reasons inadequate but could not,
doyen du corps who, by tradit ion, is the oldest member of course, insist on its appointment.
with the highest rank or, in Catholic countries, the Papal To avoid such awkward situations, most states now
Nuncio. In the Diplomatic Convention, however, it is pro- observe the practice of the agreation, by means of which
vided that "heads of missioni:i shall take precP.d.en0e in informal inq1.1iries are. addressed to the receivi.r, g state
their resp~tive classes in t.hP. order of the date and ti mP. regarding a proposed diplornati.c representafr,:e of the
of taking up their functions.''
7
sending state. It is only when the receiving state manifests
Being a loose organization without any corporate · its agrement or consent, also informally, that the diplo-
character, the diploma tic corps does not possess any legal matic representative is appointed and formally acc1·edited.

: ~a.
Aft.,
ri
14.
16.
8
Art. lp.
• Art. 4.
h rrEru,ATl Ol,l,\l, r.,A.W
146 TuR RIGHT OF L EGATION
147

Article 4 of the Diplomatic Convention provides that "the been appointed economic counselor of the Romanian lega-
receiving state is not obliged to give reasons for a refusal tion there. It was held that, since he had never been ac-
of ag rement." cepted as such by the Swis:;; government, he could not
Under our Constitution, it is the President who is em- claip1 <liplomatic immun ity. 12
powered to appoint ambassadors, other public ministers
and cons uls, subject to the consent of the Commission on Diolom::i t.i~ Function~
Appointments. His discretion is exclusive when it comes to
receiving ambassadors and other public ministers duly The functions of a diplomatic mission consist inter
10 alia in:
accredited to the government of the Phllippines.
(1) Repre~':lnting the sending ;;:tate in t.hi=> n~ceiving
Commencement of the Diplomatic Mission state.
The head of the mission is considered as having taken (2) Protecting in the receiving state the intel'ests ,:,f
up lris functions in the receiving state either when he has the sending state and its nationals.
presented his credential or when he has notified his arri (8) Negotiating r rith the government of the receiv-
val and a true copy of his credentials has been presented ing state.
11
to the foreign ministry of the receiving state. (4) Ascertaining by all lawful means conditions and
The credentials of the diplomatic agent include chiefly developments in the receiving state and reporting thereon
.; the letter of credence, or lettre de creance, by means of to the government of the sending state.
i lfl
which he is accredited to the receiving state with the re- (5) Promoting friendly relations between the send·
quest that full faith and credit be given to bis official acts on ing and receiving states and developing their economic,
behalf of the sending state. In addition to this document, cultural and scientific relations. 13
the envoy usually also carries his diplomatic passport, his The diplomatic mission may also perform consular
official instructions and a cipher or code book for use in functions in the absence of a consular mission from the
sending secret communications to his government. sending state. On reques t or by agreement, it may also
Although marked with solemnity and sometimes represent friendly governments, as when the United
even pomp, the reception of the envoy is not a n1ere cere- States undertook the diploroi::itic rnp.resentation of the
mony. Unlel:-1!:l the receiving stAte had pn:i";omi1y given its Philippine Republic while we were still in the process of
agrement to his appointment, the diplomatic representa- organizing our own foreign service. 14
tive cannot claim the usual privileges and immunities of
his ·office until he is formally accepted. Oppenheim cites·
the case of one Vitianu, who was convicted of certain
crimes in Switzerland despite his assertion that he had
10 uOppenheim-Laut.ernacht,. 784.
Art. VII, Sec. 16. 13
II Diplomatic Convention, Art. 3.
Diplomatic Convention, Art . 13.
on
"RP-US Treaty 0-~ne,;fll l,lelations .
• ; t.:
. -! i· t..'~
;
l l il i
14~ TrITERHATION,\L .1 ,41A1 'I'HE RIGHT OF Li::GATION 149

Conduct of Diplomatic Mission Based largely on international custom, most of the


diplomatic privileges and immunities have been reaf-
In the performance of his functions, the diplomatic firmed and are now expressly provided for in the Diplo-
agent must exercise the utmost discretion and tact, taking matic. Ccnvcmtion of 1961. Some of th~ rn0re important of
care always to preserve the goodwill of the sending state these are briefly discussed hereunder.
and to avoid interference with its internal affairs. The
envoy is not justified in pitting or aiding one political party (a) PP.nmn~l Inviolability
against another: or publicly criticizing the policies or acts
of the receiving state, or employing threatening or offen- Like the head of state, the envoy is regarded as sacro-
sive language or methods in the protection of the interests sanct and is entitled to the special protection of his person,
of his state or its nationals. His mission is also under no honor and liberty. An attack on any of these is deemed a
circumstance to be used for espionage, the dissemination serious offense and must be redressed with the most se-
of propaganda against the receiving state, or subversion vere penalties by the receiving state.
of its government. The Diplomatic Convention provides: "The person of a
\
The Philippine government ordered the closure of the diplomatic agent shall be inviolable. He sha11 not be liable
Cuban embassy here when it was discovered to be en- to any form of arrest or detention. The receiving state
gaged in subversive activities. Ambassador Hanihara was shall treat him with due respect and shall take all appro-
replaced in 1924 when he suggested in a letter to the U.S. priate steps to prevent any attack on his person, freedom
State Department that the passage of a bill limiting Japa- or dignity."15
nese immigration was likely to produce "grave conse- But these rules are noi without exception. The envoy
quences." Sending states have on occasion, volunta1ily or cannot complain if he is injured because he himself caused
on request, 1-ecalled their diplomatic representatives for the initial aggression and thereby provoked retaliation or
improper discharge of their functions. unduly exposed himself to danger a~ by mixing with a
diso1·derly assemblage. 16 The local authorities may also, in
Diplomatic Immm1iti.':'~.and Privileges_ exceptional cases, lay hands on him if he has committed
an act of violence and it is necessary to place him in pre-
Diplomats enjoy a number of privileges and immuni- ventive restraint.
ties some of which can be traced to as far back as the
In the Philippines, RA. No. 75 punishes, on the basis
Greek and Roman eras. The reason originally given for the
of reciprocity, "any person who assaults, sti;kes, wounds,
special treatment of the envoy was the fiction of exterrito-
imprisons or in any otber manner offers violence to the
ria1ity by which he was considered an extension of the
person of an ambassador or public minister, in violation of
state he was representing. But this view has yielded to the
the law nations" with imprisonment for not more than
modem justification that his privileges and immunities
three years ~nd a fine uot exceeding two hundred pesos in
are necessary to give the envoy the fullest freedom or lati-
tude in the exercise of his official functions.
ii,j. ·~ Art. -~9.
16
Fenwtck, 469.
._ !' ..
150 lNTP.RNAnot-rAI. LAw 'Pm,: RIGHT OF LEGAi'ION 151

addition. to the penalties prescribed by the Revised Penal the rrussion; (b) an action relating to succession in which
C(lde. lt is to be notP.d> though, that the attack is confined the diplomatic agent is involved as executor> administra-
to the person of the envoy and does not indude his h0110r tor, heir or legatee as a private person and not on behalf of
or reputation. the sending state; (c) an action relating to any professional
or commercial activity exercised by the diplomatic agent
(b) Immunity from Jurisdiction in the receiving state outside his official functions."1&
It is a generally accepted principle of international Immunity from ju:dsdiction may be waived expressly
law that the diplomatic agent shall be immune from the by the sending state, or under its authority, by the head of
civil, criminal and administrative jurisdiction of the re- mission. Waiver may also be made impliedly, as when the
a
ceiving state except in few .specified cases. This does not person entitled to the immunity commences proceedings in
the local state and thereby opens himself to any counter
mean that he can violate the local laws with impunity; on
the contrary, he is expected to observe them meticulously claim directly connected with the principal claim. However,
as befits a person of hls rank and prestige. If he does not, waiver of immunity from jurisdiction in respect of civil or
he may not be punished for his offense by the receiving administrative proceedings shall not be held to imply
state, but it can and usually will ask for his recall. waiver of inununity in respect of the execution of the judg-
So strictly observed is this immunity that the envoy ment, for which a separate waiver shall be necessary.19
can escape the rigor of the local laws even if he commits RA. No. 75 provides that "any writ of process sued out
the most serious offense in the receiving state. Thus, when or prosecuted by any person in any court of the Republic of
in 1584 the Spanish ambassador to England plotted the Philippines, or by any judge or justice, whereby the
against the life of Queen Elizabeth I, he was merely or- person of any ambassador or public minister of any foreign
dered to leave the country, as so too was the French am- state, authorized and received as such by the President, or
bassador when he was involved in a conspiracy to kill any domestic servant of any such ambassador or minister is
Cromwell in 1654. Interestingly, however, when in 1587 arrested or imprisoned, or his goods or chattels are dis-
the French ambassador committed a similar offense trained, seized, or attached, shall be deemed void, and every
against the same Queen Elizabeth I) he was simply given persori by whom the same is obtained or prosecuted,

a warning.
11 whether as party or as attorney, and every officer concerned
The Diplomatic Convention provides: "A diplomatic in executing it, shall, upon conviction, be punished by im-
agent shall enjoy immunity, from the criminal jurisdiction prisonment for not more that three years and a fine of not
of the receiving state. He shall also enjoy inummity from exceeding two hundred pesos in the discretion of the court."
its civil and administrative jurisdiction, except in the case In \Vorld HPfl.lth Org0,ni,7.ation. v. Aquino,1-q, the re-
of: (a) a real action relating to private immovable property ~pondent judge issued a warrant for the search and F1ei-
situated in the territory of the receiving state, unless he £:
.~ :4
holds it on behalf of the s~ndi~g state for the purposes of . '.!

'i i. •18
Ii
9
A1t. 31.
1
Oppenheim-Lauterpacht,f'79l . '" t ·_190Art. 32.
1 - 48 sCRA 242.
• 1r
.! ' l "-
tS:'i:t :
- ·~1·:;f .t
152 INTERNATIONAL L.\w Tm: Ru.~H T' 0F LEGATION
153

zure of certain goods alleg_ed to have been brought into the in conducting foreign relations, it is accepted docttine that 'in
country illegally by an official of the World Health Organi- such cases the judicial department of (this) government follows
zation. The WHO and the official moved to quash the the action of the political branch and will not embanass the
latter by assuming an antagonistic jurisdiction.'
wa1Tant on the ground of the latter's diplomatic immunity 2. The unfortunate fact that respondent judge chose to
under the Host Agreement concluded between the Philip- rely on the suspicion of respondents COSAC officers 'that the
pines and the WHO. The Secreta1y of Foreign Affairs other remaining crates unopened contain contraband items'
joined them in this representation, as so too later did the rather than on the catego1ical assurance of the Solicitor Gen·
Solicitor General. Neverth~less, the judge denied the mo- eral than petitioner Vei-stuyft did not abuse his diplomatic
immunity, which was based in turn on the official positions
tion, holding that there were "strong and positive indica- taken by the highest exP.cutive officials with competence and
tions of violations of local laws." ln annulling the search authority to act on the matter, namely, the Secreta1ies of For-
warrant, the Supreme Court held as follows: eign Affairs and of Finance, could not justify respondent
judge's denial of the quashal of the search warrant.
1. The executive branch of the Philippine Government As already stated above, and brought to respondent
has expressly recognized that petitioner Verstuyft is entitled to court's attention, the Philippine Government is bound by the
diplomatic immunity, pursuant to the provisions of the Host procedure laid down in Article vrr of the Convention on the
Agreement. The Department of Foreign Affairs formally ad- Privileges and Immunities of the Spedalized Agencies of the
vised respondent judge of the Philippine Government's official United Nations for consultations between the Host State and
position that accordingly 'Dr. Verstuyft cannot be the subject of the United Natio11s agency concerned to determine, in the first
a Philippine court summons without violating an obligation in instance the fact of occurrence of the abuse alleged, and if so,
intemational law of the Philippine Government' and asked for to ensure that no repetition occurs and for other recoUl'ses.
the quashal of the search warrant, since his personal effects This is a commitment voluntarily asswned by the Philippine
and baggage, after having been allowed free entry from all cus- Government and as such has the force and effect of law.
toms and duties and taJLes., may not be baselessly claimed to Hence, even assuming arguendo as against the categori-
have been 'unlawfully imported' in violation of the tariff and cal assurance of the executive branch of government that re-
customs code as claimed by respondent COSAC officers. The spondent judge had some ground to prefer respondent COSAC
Solicitor General, as principal law officer of the Government, officers' suspicion that there had been an abuse of diplomatic
tikewise expressly affirmed said petitioner's right to diplomatic immunity, the continuation of the search warrant proceedings
immunity and asked for the quashal of the search warrant. before him was not the proper remedy. He should, neverthe·
It is a recognized principle of international law and un- less, in deference to the exclusive competence and jurisdiction
der our system of separation of powers that diplomatic immu- of the executive branch of government to act on the matter,
nity is essentially a political question and courts should ref- have acceded to the quashal of the search warrant, and for-
use to look beyond a determination by the executive branch of warded his findings or grounds to believe that there had been
the government, and where the rlea of diplomatic immunity is such abuse of diplomatic immunity to the Departm,mt of For-
recognized and affirmed by the e:irecutive branch of the gov. eign Affairs for it to deal vvith, bl accordanre with the afore·
ernment as in the ·case at bar, it is then the duty of the courts mentioned Convention, if so warranted.
to accept the ,claim of immunity upon appropriate suggestion
by the p:riri_cipal law officer of the government, the Solicitor
In the case of The Holy See u. &sario, l9b the Supreme
General in tJ:us·cas.e, or other officer acting under his direction.
Hence, inra~e'[i;nce to the settled principle that courts may Couit dismissed a civil complaint a gain~t the petitioner
not so exeri!i~ t:h~r jurisdiction by seizure and detention of
propel'ty, 1t4 to embarrass the executive arm of the government 19
b 238 SCRA 524. ..

- ·'!!, ,_,n
't , - "" ~
tl I~
154 lNIERNAIION:\L L AW ] f!E H 1GH1' OF T .MA'l'I0N l fifi

after the Department of Foreign Affairs had "officially envoy's offices, his residence and out-buildings, his means
certified that the Embassy of the Holy See is a duly ac- of transportation, :md the compound where these are
credited diplomatic mission to the Republic of the Philip- found, which may not be entered by the local authorities
pines exempt from local jurisdiction as entitled to all the without his permission.
rights, privileges and immunities of a diplomatic mission But this rule i~ not absolute as it is allowed, in cases
or embassy in this country." It was further affirmed that of clear and urg~nt necessity, for the local authmities to
"the detennination of the executive arm of the government take forcible measures to a1Test any person subject t-0
that a state or instrumentality is entitled to sovereign or their jurisdiction. The so-called right of diplomatic asylum
diplomatic immunity is a political question that is conclu- has not received. universal recognition except when it is
sive upon the courts'. Where the plea of immunity is recog- extended for humanitarian reasons, as when the fugitive
nized and affirmed by the executive branch, it is the duty seeking sanctuary is in immediate danger of his life or
of the courts to accept this claim so as not to emban·ass safety. In other cases, asylum is granted only on the
the executive arm of the government in conducting the strength of local usage, partiC'ularly in favor of political
country's foreign relations." refugees, or of treaty stipulations.
(c) Inviolability of Diplomatic Premises Of particular interest is the case of Sun Yat Sen, who
was detained in 1895 in the Chinese legation in London in
The Diplomatic Convention provides: "The premises of defiance of a writ of habeas corpus. When the British gov -
the mission shall be inviolable. The agents of the receiving ernment threatened to use force to carry out the order of
state may not enter them except with the consent of the the court, the Chinese minister immediately ordered the
head of mission."ro It also places on the receiving state "a prisoner's release.
special duty to take all appropriate steps to protect the
. pre:rrrises of the mission against any intrusion or damage (d) Inviolahilit.y of Ar~hivP~
and to prevent any disturbance of the peace of the mission
or impairment of its dignity.'m Furthermore, "the premises For quite obvious reasons, the receiving· state has no
of the mission, their furnishings and other property thereon right to pry into the official papers and records of a foreign
and the means of transport of the mission shall be immune diplomatic mission. Accordingly, the Diplomatic Conven-
from search, requisition, attachment or excution.22 tion simply provides that "the archlves and documents of
Originally derived from the principle of exterritorial- the mission shall be inviola.ble at any time and wherever
23
ity hut now generally j-vstif:ied on more pragmatic gronnds, they may be." This is true even in case of armed conflict,
the so ·called (ranr.hise de· l'hotel P-xt.e.nds immunity from during which the archives must rfnY1~in ~':'fll~,:\ and may
the local law to the diplomatic premises. These include the not be confiscated by the local state.

20
Art. 22.
21
Ibid.
22
Ibid. 2
' Art. 24.

f
~
n:
!

156 }N'J'F,RNA'Tl0NA1, l,AW


'I'HF. H IOHT OF LP.GATION 1fi7

~A) Inviolability of Comm tmi6:: I:\ t.i m1 (g) ExP.mption r-~·om Taxation
Being essential to the proper discharge by the e nvoy
The diplomatic envoy is also exempt from taxes, cus-
of his official functions, the right to free communication is
toms duties, and other dues, subject to the exception listed
recognized and protected by international law. According
in the Diplomatic Convention, 21 and as well as from social
to the Diplomatic Convention, "The receiving state shall
security requirements under certain conditions.28 His per-
permit and protect free communication on the part of the
mission for all official purposes. In communicating with sonal baggage is also free from inspection unless there are
serious grounds for presuming tb~t it i::ontains articles not
the government and other missions and consulates of the
exempt from customs duties or not admissihle inti) thP.
sending state, wherever situated, the mission may employ receiving state.29
all appropriate means, including diplomatic couriers and
messages in code or cipher.',24 (h) Ot.hP.r PrivilPg"?''!
Such communications are "inviolable" and the diplo-
matic bag containing it "shall not be opened or detained." Subject to its laws and regulations concerning zones
Even the diplomatic courier carrying the diplomatic bag entry into which is prohibited or regulated for reasons of
"shall be protected by the receiving state in the perform- national security, the receiving state shall ensure to all
ance of his functions. He shall enjoy personal inviolability members of the mission freedom of movement and travel
and shall not be liable to any form of arrest or detention.',25 in its territory. 30

(f) Exemption from Testimonial Duties The receiving state shall also exempt diplomatic
agents from all personal serv:ices, from all public services
The Diplomatic Convention also provides that "a of any kind whatever, and from military obligation such as
diplomatic agent is not obliged to give evidence as a wit- those connected with requisitioning, military contributions
ness. " 26 Nevertheless, he is not prohibited by international and bil1eting. 31
la w from doing so and may waive this privilege when The mission and its head shall have the right to use
authorized by his government. For example, the Vene- the flag and emblem of the sending state on t he prAmi.ses
zuelan envoy testified at the trial of the assassin of Presi - of the mission, inc) ud.i ng the residence of the head of the
dent Garfield in 1881. On the other hand, the Dutch envoy mission, and on his means of transport.32
to Washington invoked this right in 1856 when he rejected
a request to testify in connect'ion with a homicide commit-
ted in his prei::ence and for the prosecution of which his
testimony was necessary. The American government later
21
asked for his recall. Arts. 34, 36.
u Art. 33.
2
• Art. 27.
. ,. r Art. 36.
ao Art. 26.
,s Ibid. 1
• Art. 35.
16 Art. 31.
=Art. 20.
!.

158 illTF.RN .. 'T'TONAL l ,AW


T HE RIGHT OF LF.:GAT IOU 159

The Diplomatic Suite or Retinue posed to have attached not to hirr.1 personally but to the
state 118 w::is representL1g. 35
The above-discussed immunities and privileges are
available not only to the head of mission and his family These privileges and immunities are available to him
but also to the other members of the diploma tic retinue, and to his family not only in situ but as well in transitu,
albeit not in the same degree. The diplomatic retinue con- that is, when t r aveling through a third state on the way to
sists of the diplomatic staff, the administrative and techni- or from t he receiving state, so far as m~y bP. necessary to
cal staff and the Sef'\?,ce staff. The administrative and secure his tra nsit or return.36
t.echnical staff enjoys the same rights as the diplomatic
'T'ermination of Diplomatic Mission
staff except that immunity from civil and administrative
jurisdiction shall not extend to unofficial acts. On the A diplomatic mission may come to an end by any of
other hand, the private servants of the officiai members of the usual methods of t.erminating official relations, ljke
the mission, if they are not nationals or permanent resi- death, resignation, removal, abolition of the office, ~ .
dents of the receiving state, enjoy only exemption from These are governed by municipal law. Under int.ernational
dues and t ruces on their income from the mission a nd such law, the more important modes are recall and dismissal.
other immunities and privileges as may be granted by the
Recall may be demanded by the receiving state when
receiving state.33
the foreign diplomat becomes persona non grata to it for
Du.ratio:n any reason. An example is the request made by the
U.S.S.R. in 1953 for the recall of U.S. Ambassador Kennan
Every person entitled to diplomatic privileges and for making derogatory statements against the Soviet Gov-
immunities shall enjoy them from the moment he enters ernment. Where the demand is reject.ed by the receiving
the territory of the receiving state on proceeding to take state) or even without making a request for recall, the
up his post or, if already there, from the moment h is ap- receiving sta te may resort to the more drastic method of
pointment is notified to the foreign ministry. 34 dismissal, by means of which the offending diplomat is
When his functions have to come to an end, his simply asked to leave the country.
privileges l:lnd immunities sh:tll normally cea..~e from the In October 1971, for instance, the British Govern-
moment h e leaves the country or on expiry of a reasonable ment ordered no less than 105 SoyjP,t diplomat.ic officials
time in which to do so, but $hall subsist until such time to leave Great Britain-the largest diplomatic expulsion
even in case of armed conflict. However, with respect to in peacetime history-for espionage. The U.S.S.R. lat.er
acts perfor med by him in the exercise of his official func- retaliated by ousting 5 British diplomats and refusing to
tions, immunity shall continue indefinitely as it is sup- accept 13 others. In 1976, the North Korean ambassador
and several members of his diplomatic mission were ex-

3s Ibid.
36
Art. 40
~
I1i)\ 160 INTERNA'l'IONAI. L,\'h'

'
pelled by the Scandinavian states to which they were ac- Chapter 13
credited, for alleged involvement in illicit drugs.
The outbreak of war between the sending and re- CONSULS
ceiving states terminates their diplomatic relations, which
are in fact usually severed even before the actual com- \'
mencement of hostilities. Extinction of either state will CONSULS are state agents residing abroad for various
also have the same effect. As for change of government, purposes but mainly in the interest of commerce and navi-
diplomatic relations are not disturbed if the change is gation. Unlike diplomatic agents, they are not charged
peaceful but may be suspended where it is effected by with the duty of representing their states in political mat-
means of violence and ·the new government has not yet ters nor are they accredited to the state where they are
been recognized by the receiving state. In either case, ac- supposed to discharge their functions. For this reason,
cording to Oppenheim, thP,re ig a necessity for the diplo- consuls do not ordinarily enjoy all the traditional diplo-
37 matic immunities and privileges, although they are to a
matie 1:1.gPnt._t.o he provided with a n-ew J.i:>t.t.P.r nf r.rnclP.nce.
certain extent entitled to special treatment under the law
of nations.
The institution of consul dates back to as far as six
centuries before Christ, when the Egyptians allowed the
Greeks at Naucratis to choose from among themselves a
magistrate who would apply to them the laws of their own
country. Later, the Greeks began sending to foreign juris-
dictions their own protectors or prostrates (proxenoi), a
practice modified by the Romans with the appointment of
the praetor peregrinus, who interpreted the law between
Romans and foreigners. Following the conquest _of Rome,
the Visigoths established a special comt that applied to
foreigners their own national laws rather than the law of
the territorial sovereign. Similar comts wer~ created 'by
the Chinese during the eighth century and bv the Arahs in
the ninth century.
With the development of commerce in the Mediterra-
nean cities and the Near East, numerous treaties of ca-
pitulation, as they were called, exempted European na~
tionals in the Near East from the local jurisdiction and

37
Oppenheim-Lauterpacht, 818.

.,,.

1?'
;; 1h2 !NrERNA'J'IONAL LAW
CONSULS 1133

i made them triable by their own consuls according to their


own national laws. Eventually, in view of their growing
is the commission issued by the sending state,~ and the
exequatur, which is the authority given to them by the
importance, consuls acquired official character when they receiving state to exercise their duties therein.4 Hence,
were commissioned directly by their own governments consuls are public officers not only of the sending state but
rather than merely by their own countrymen. The rise in of the receiving state as well, and are governed by the laws
nationalism and the concept of sovereignty, however, of both. As in the case of diplomats, states may refuse to
gradually decreased much of the power of consuls until receive consuls and to withhold the exequatur from them
they became vested oqly with authority to act ge~erally without explanation.
on commercial. and related matters. Nevertheless, the The consent given to the establishment of diplomatic
relations between two states implies, unless otherwise
~ continuing expansion of international commerce, coupled
stated, consent to the establishment of consular relations. 5
with the improvement of transportation and communica-
tion in the seventeenth and eighteenth centuries, led to However, the severance of diplomatic relations shall not
the further growth of consular services. ipso facto involve the severance of consular relations,6 and
vice versa.
Kinds and Grades
Functions
There are two kinds of consuls, to wit, the consules
1
missi and the consules electi. The first are professional or Generally speaking, the functions of consuls may be
career consuls who are nationals of the appointing state divided into duties pertaining to commerce and naviga-
and are required to devote their full time to the discharge tion, duties respecting the issuance of passports and vi-
of their consular duties. The second may or may not be sas, and duties of protection of nationals.
nationals of the appointing state and perform their con* The principal duty of consuls is to promote the com-
sular functions only in addition to their regular callings. mercial interests of their country in the receiving state
Although consuls enjoy a certain measure of interna- and to observe the commercial trends and developments
tional character, their grades or ranks remain a matter of therein for report to their home government.
municipal concern. Under the Consular Convention, how- They also perform duties relating to navigation, such
ever, the heads of consular posts are das~ified according to as visiting and inspecting vessels of their own states which
importance into con~uZ.i?e.neml, consul. virP.-consul and may be in t.he consular district, exercising a measure of
2
consnlar agent. supervision over such vess';)ls, adjusting matters pertain-
AppQ>intment ing t.o t.hP.ir internal order and discipline: as well as visit-

Consuls derive their authority from two principal


sources, viz., the letter patent or lettre de provision, which 3
Ibid., Art. 11, Sec. 1.
: Ib~d., Art. 12,.S*e_(;- ;t.
' Consular Convention, Art. l, Sec. 2. Ibid., Ai:t,. 2, Se,c.12! •
2
Ibid., Art. 9, Sec. 2. . s Ibid., Art. 2, S~i;.~J? .
.. ''.1 1 t d
t H1.t-tl
-:-f:~ 1
.I -~·i
.s, #
t
Cetrsuu; 165
lJ'lTFllN ATIONAL (,AW
164

may be cmtailed or restricted whenever it is exercised to


ing and inspecting foreign vessels destined for a port of the
the prejudice of the receiving state.6
sending state.
Consuls are also empowered to issue passports to na- Consuls also enjoy inviolability of their archives,9
tionals of the sending state. to visa passports and to issue which may not be examined or seized by the receiving
documents relating to ~ntry into and travel within the state under any circumstance, nor may their production or
teni.tory of the sending state, and to visa invoices and testimony concerning them be compelled in official pro-
certificates of origin of goods destined for the territory of ceedings.lo But this immunity does not extend to the con-
sular premises themselves, where legal process may be
that state. served and arrests made without violation of international
It is likewise the responsibility of consuls to look after
the interests of fellow nationals and to extend them official law, except only in that part where consular work is being
assistance whenever needed. Thus, they may authenticate performed. 11 In the famous case of Mrs. Kasenkina, for
documents, solemnize marriages, register births and example, the United States rejected a protest made by
deaths, temporarily administer the estates of deceased Russia against the se1:Vice of a vvrit of habeas corpus upon
nationals within the consular district, advise and adjust the latter's consul at his official residence in New York for
differences between their fellow nationals, visit them the production of a Russian schoo1teacher alleged to be
when they are arrested or detained by the receiving state, detained in the premises. In fact, the consular offices may
assist them in proceedings before or in relation with the even be expropriated for purposes of national defense or
local authorities, and inquire into any incidents which public utility. 12
have occurred within the consular district affecting the Respecting criminal offenses, the rule is that consuls
interests of such nationals.
7
are exempt from the local jurisdiction for crimes commit~
ted by them in the discharge of their official functions. But
Immunities and Privileges with regard to other offenses, they are fully subject to the
It had already been noted that consuls, not being local law and may be a1Tested, prosecuted and punished in
diplomatic officials, do not ordinarily enjoy the traditional proper proceedings. For reasons of comity, however, con-
diplomatic immunities and privileges. However, interna- suls usually are not prosecuted for minor offenses and,
tional comity and conventions. have invested them with when arrested, are given adequate opportunity to secure
certain privileges and immunities which are generally their release on bail at the earliest possible time. 13
recognized and observed by civilized states. Civil suits may be :inst1tuterl agl=lirist const1ls in their
By almost universal acceptance, consuls have a right personal or private capacity but not in matters connected
to official communication and may corrP-~pond ·with their 8
home government or other official bodies by any means, Ibid., Art. 35.
9
Ibid., Art. 33.
including cipher or code, without being subjected to cen- 10
I bid., Art. 44, Sec. 3.
sorship or unreasonable res~~-aintt However, this right . .~ fbid., Art. 31.
· ~" [bid., Art. 31, Sec. 4.
.; Ibid., Art. 5. i{l!ic;l., Arts. 40, 43 .

:J 'i f 1'*2 , •
Jr,."J'gRNAT!ONAL Lw• CONSULS 167
166
14
with their official duties. 14 In Walthier v. Thomson, a for like. The exequatur may also be withdrawn by the receiv-
example, where a consul was sued for damages resulting ing state, either of the appointing or receiving state may
from certain statements allegedly made by him, it was be extinguished, or war may break out between them. In
held that the "consular official is immune from suit when the event of war, the consulate is closed and the archives
the acts complained of were performed in the course of his are sealed and left in the custody of a Cdretaker, usually a
official duties ... Thus, if the statements allegedly made to consul from a neutral state. The consul from the belliger-
Walthier by Thomson were uttered in pursuance of Thom- ent state is allowed to depart for his own country as soon
son's official functions as a consular officer, then the sug- as possible and without unnecessru-y molestation.
gestion of the ambassador of Canada should be adopted It should be noted that severance of consular rela-
and the defendant held immune." tions does not necessarily terminate diplomatic relations.
Consuls are also generally exempted from taxation, Thus, as an offshoot of the Kasenkina case, Russia a11d the
customs duties, service in the militia, and social security United States discontinued consular relations for more
rules, and are privileged to display their national flag and than fifteen years. During thP t. pP.rinn, howP.oP.r, t.hP.y
insignia in the consulate although these concessions are maintained diplomatic relations.
considered "non-essential'' to the proper dischaxge of their
15
official duties."
These immunities and privileges are available not
only to the consul but also to the members of the consular 16
post, their respective families, and the private staffs. 17
Waiver may in general be made by the sending state.
With respect to acts peifonned by the consul or a consular
officer or employee in the exercise of his functions, immu-
nity from jurisdiction will subsist without limitation of
18
ti me.
Termination of Consular Mission
The consul's office may end in accordance with the
usual modes of terminating official relations, such as re-
moval, resignation, death, Avp-irntion of the term, and the
------·, }
1
• Ibid., Art. 13.
1
•• 189 F. Supp. 319 (1960).
10
Ibid., Arts./!); 50, 52, 48, 29.
16
Ibid., Art. 5'3~1 Secs. 1, 3.
11 1b·d
lA ~ ., Art....4 s·~ee.,l.
; , ·~
Ibid., Art.-!i Se_cs. 3, 4.
'fHEA'TIES 169

CJrnpt.er 14 into one which may be organized on any chosen lev':'l of


social integration. Finally, they frequently provide the
TREATIES humus for the growth of int.P.rnMiorni I mi::;t.om::iry l:::iw 2

F.ssP.nti~l RP.qnisites of a Valid Treaty


A TREATY may be defined as a formal agreement, usually
To be valid, a treaty must: (a) be entered into by par-
but not necessarily in writing, which is entered into by
states or entities possessing the treaty-making capacity, ties with the treaty-making capacity; (b) through their
for the purpose of regulating their mutual relations under authorized representatives; (c) without the attendance of
the law of riations. In, its generic sense, the term treaty duress, fraud, mistake, or otlwr vice of i:-onsent; (d) on a.ny
may embrace such other compacts as conventions, declara- lawful subject-matter; (e) in accordance with their respec
t:jvP. C".On~t:it.11t.ioni:il prnl"P.!':~A!':
tions, covenants, acts, concordats, etc., although there are
\ recognized variations in their extent or purposes. All such (a) Treaty-making Capacity
agreements, when intended to create legal as distin-
guished from moral obligations, are binding on the parties. All states have full treaty-making capacity unless
An executive agreement is not a treaty insofar as the limited by reason of their status or by previous self-
concuITence thereto of the Senate is not required under imposed inhibitions. Thus, the protectorate is restricted in
our Constitution. However, the distinction is purely mu- the control of its external affairs by the protector state; a
nicipal and has no international significance. From the neutralized. state may not agree to a defensive or offensive
viewpoint of inte1national law, "treatise and executive alliance. On the other hand, there are instances, as al-
agreements are alike in that both i::-nn~t.it.nt.P. equally bind ready pointed out, when even mere colonies have been
1
ing ob1igations 1.1pnn t.hP. ni:it.ion." allowed to sign treaties or join international conferences as
full-fledged members along with sovereign states. The
Fun~t.ions of Treaties United Nations and its organs, such as the Security Coun-
According to Schwarzenberger, treaties are supposed cil and the Economic and Social Council, and international
bodies like the World Health Organization, may ~lso enter
to perfonn four important functions. In the first place,
into tre.a.tjes.
treaties enable parties to settle finally actual and potential
conflicts. Secondly, they make it possible for the parties to (b) Authorized Representatives
mQdify the rules of jnternational customa.ry law by m8ans
of optional principles or standards. Thirdly, they m~y lean It is for municipal law to detennine which organ of
to a transformation of unorganized international society the state shall be empowered to enter into treaties in its
behalf The Constitution of the Philippines, for example,
1~.S. Sayre, 39Columbia Law Review, p. 75, 1939. authorizes the President to plake treaties, subject to the
• J; .
168
l•ITEHN!1.TIC%\L LA'"I °I'REA'rIE'3 171
170

concurrence of two-thirds of all the members of the Sen- by Napoleon that the Spanish monarch would be tried for
ate.3 This is in consonance with the general practice of treason if he did not abdicate within twelve hours. A dif-
assigning the treaty-making power to the executive de- ferent question will arise, however, if the pressure is ap-
partment of the government, subject to the consent of the plied not upon the negotiator but upon the state itself, as
legislature or one of its branches. in the case of a dictated treaty of peace.
There is some conflict regarding the legal effect of a Such a treaty was upheld by earlier writers when war
treaty concluded by an organ of the state without constitu- was still accepted as a legitimate means of compulsion.
tional authority to undertake this function. On this point, With the outlawry of war, however, it is now suggested
the Harvard Research on International Law declares: "A that treaties of peace ex.acted from the vanquished bellig-
state is not bound by a treaty made in its behalf by an erent should be regarded "not as voluntary compacts en-
organ or authority not competent under the law to con- tered into as the price of peace, but rather as a sentence
clude the treaty; however, a state may be responsible for imposed by the international community upon aggressors
an injury resulting to another state for reasonable reliance for crimes committed against international law and the
by the latter upon a representation that such organ or general peace.'.s The flaw in this explanation is that 1t
ii authority was competent to conclude the treaty." automatically convicts the defeated state as the aggressor
~
But this view is disputed by some writers, such as and would, in effect, sanction the acts of the victorio.us
;
Hackworth, Hyde, and Willoughby, to name a few. McNair state even if essentially and undoubtedly illegal.
writes that if a party negotiating a treaty produces an Lauterpacht perhaps states the better rule when he
authorization which appears to be complete a nd regular observes: ''The position has now probably changed insofar
although in fact constitutionally defective, "the other as war has been prohibited by the Charter of the United
party, if it is ignorant and reasonably ignorant of the de~ Nations and the General Treaty for the Renunciation of
feet, is entitled to assnme that the instrument is in order War. The state which has resorted to war in violation of its
and to hold the former to the 0bligAt.inn of the latter.... obligations under these instruments cannot be held to
apply force in a manner permitted by law. Accordingly,
(c) Freedom of Consent duress in such cases must, it is submitted, be regarded as
It is uniformly recognized that fraud or mistake will vitiating the treaty."°
invalidate a treaty as it would an ordinary contract. How-
(d) Lawful Subject-Matter
ever, there is still sbarp differ.ence of opinion on the legal
AffP.cl of duress upon the treaty. The Tres.ty ofTordesillas in 1494 is an example of an
A treaty forced upon the person ()r the uegoti~tor js invalid trPat.y because of the illegality of its 811bject·matter
unquestionably null and void ab initio, as_was the treaty insofar as it sought to divide between Spain and Portugal
signed at Bayonne in 1807 by Ferdinand \11 under threat parts of the Atlantic, Pacific and Indian Oceans, which are
~
'lREA'l'IES 173
l1ITEIU'i ATTONAL LAW
172
If and when the negotiators finally decide on the
open seas under the law of nations. By the same token, a terms of the treaty, the same is opened for signature. This
treaty with such unlawful purposes as traffic in white step is primarily intended as a means of authenticating
slavery or narcotics, which is contrary to international the instrument and for the purpose of symbolizing the
conventions and public morality, or the operation of the good faith of the parties; but, significantly, it does not indi-
activities of pirates, who are host?~ lw.nianis 11eneri~, cate the final consent of the state in cases where ratifica-
wonld be null arni void. tion of the treaty is required. The document is ordinarily
(e) Compliance.with Constitutional Processes signed in accordance with the altemat, that is, each of the
several negotiators is allowed to sign first on the copy
The treaty-making process is governed by interna- which he will bring home to his own state.
tional law except with respect to the method of ratification Ratification, which is the next step, is the formal act
as required by the municipal law of most states at present. by which a state confirms and accepts the provisions of a
Non-compliance with this requisite will prevent enforce- treaty concluded by its representatives. The purpose of
ment of the treaty even if already signed by the authorized ratification is to enable the contracting states to examine
negotiators. the treaty more closely and to give them an opportunity to
refuse to be bound by it should they find it inimical .to
Treaty-making Proc~~~ their interests. It is for this reason that most treaties are
The usual steps in the treaty-making process are: ne- made subject to the scrutiny and consent of a department
of the government other than that which negotiated them.
gotiation, signature, ratification, and exchange of the in-
struments of ratification. The treaty may then be submit- While most treaties now expressly provide that they
ted for registration and publication under the U.N. Char- shall be subject to ratification according to the constitu-
ter, although this step is not essential to the validity of the tional processes of the negotiating states, the weight of
authority is that the requirement would still hold true
agreement as between the parties.
Negotiation may be undertaken directly by the head even without a provision to this effect in the instrument.
of state but he now usually assigns this task to his Hence; in the absence of a stipulation to the contral'y, and
· authorized representatives. These representatives are more so if ratification is expressly required, an unratified
treaty cannot be a source of obligations between the par-
provided with credentials kno~n as full powers, which
they exhibit to the 1.o ther negotiators at the start of the ties.
formal dier.ussiop~..)~ .i s standard practice for one of the But what if the treaty is ratified in viol.ation of the
i
parties to subajt~ ·~ raft of thP. prnposed treaty which, constitution of the ratifying state, as ,vhen it has not pre-
viously received the required approval of the ·legislature?
together with• tMl counter-proposals, becomes the basis of
• -- -r.· "it¥,.'.,,
the subsequen~ n~ot}ations. The negotiations may be The majority view on this question is that "foreign gov-
bf.ief or p,r otrac~ji,~~ending on the issues involved, and ernments should be held to a knowledge oft}le·pQnstitu-
may even '!coJ).ap$l7. ip~c~se the parties are unable to come tional prerequisites for ratification in each '"cbuntjy with
to an agreemen.tf p}~e.~~nts under consideration. ,, \ :§if ; which they are dealing; .and ~ .. that a tr;\t) .iw~Cf
has
.. INS
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(1

INTERNATIONAL LAW
TP.Ei\'flES 1'7fi
1'74

been ratified without proper observance of these require- Nations, such as the international Court of Justice. Never-
ments is ipso facto invalid, whatever the proclamation of theless, the treaty does not cease to be binding between
the head of the state may assert in that respect."
1
the parties and may be the basis of a litigation before some
other arbitral or judicial body not connected with the
There is no legal obligation to ratify a treaty, but it
United Nations. This is a modification of the rule under
goes without saying that refusal to ratify must be based on
the Covenant of the League of Nations, which provided
substantial grounds and not on superficial or whimsical
that. treaties not. registernd An<l p11hliRhro Rhall hP- null
reasons: otherwise the other state would be justified in
and void.
taking offense. At times; to avoid total rejection of a treaty,
the ratification.is qualified or made conditional, i.e., with Binding F.ffP.~t. nf 'fu=>M.iP.!i:
reservations, in which event the same must be accepted by
the other party 1f these would constitute a modification of As a rule, a treaty is binding only on the contracting
parties, including not only the original signatories but also
the original agreement.
Finally, it should be stressed that under the Consti- other states which, although they may not have partici-
pated in the negotiation of the agreement, have been al-
tution of the Philippines, the power to ratify treaties is
lowed by its terms to sign it later by a process known as
vested in the President and not, as is commonly believed,
in the legislature. The role of the Senate is confined simply accession. Non-parties are usually not bound under the
to giving or withholding its consent (a ''veto power" as maxim pac-ta tertiis nee nocent nee prosunt.
Corwin calls it) to the ratification. For that matter, it is There are instances, however, when third states may
competent for the President to refuse to submit a treaty to be validly held to the observance of or benefit from the
the Senate or, having secured its consent for its ratifica- provisions of a treaty. Firstly, the treaty may be merely a
tion, to refuse to ratify it. But as a rule, of course, he can- formal expression of customary international law which,
not ratify a treaty without the concurrence of two-thirds of as such, is enforceable on all civilized states because of
all members of the Senate. their membership in the family of nations. An example
The last step in the treaty-making process is the ex- would be the Hague Conventions of 1899 and 1907. Sec-
t:han.ge of the instruments of ratification, which usually ondly, it is provided under Article 2 of the U.N. Charter
also signifies the effectivity of the treaty unless a different that the Organization "shall ensure that non-member
date bas been agreed upon by the parties. Where ratifica- States act in accordance with the principles of the Charter
tion js dispensed with and no effectivity clause is embod- so far as may be necessary for the maintenance of intema-
ied in the treaty, the instrument is deemed effective upon tion.al peacP. and security," and under Article 103 tnat. the
obligations of member-states shall prevail in ca.se. of con-
r its signature.
flict with "any other international agreement," including
.Under Article 102 of the U.N. Charter, a treaty not .
those concluded with non-members. Thirdly. the treaty
registered with the Secretariat, by which it shall be pub- .
itself may expressly extend -its ~enefits to non-signatory
lish~, .~ o t be invoked before any organ of the United.. "~
.. - I i l -5,,, states, such as the Hay-Pau:q.~fol:e Treaty of 1901, which, .
,I
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although concluded only by ,tb,e United
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176 INTERNATIONAL L'\W TREATIES 177

Britain, opened the Panama Canal "to the vessels of com- tional obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of
merce and of war of all nations observing these Rules, on the obligations undertaken."
terms of entire equality." By their inherent nature, treaties really hmit or restrict
Parties to apparently unrelated. treaties may also be the absoluteness of sovereignty. By their voluntary act, nations
linked by the most-favored-nation clause, under which a may surrender some aspects of their state power in exchange
contracting state entitled to most-favored-nation treat- for greater benefits granted by or derived from a convention or
pact. After all, states, like individuals, live with coequals, and
ment from the other may claim the benefits extended by in pursuit of mutually covenanted objectives and benefits, they
the latter to another state in a separate agreement. To also commonly agree to limit the exercise of their otherwise ab-
illustrate, if X agrees to extend most-favored-nation treat- solute rights. Thus, treaties have been used to record agree-
ment to Y and there.fl.fi:P.r grants tariff preferences to Z ments between States concerning such widely diverse matters
as, for example, the lease of naval base, the sale or cession of
under :mother treaty. Y will be entitled, by virt.ue of it!::
territory, the termination of war, the regulation of conduct of
\
treaty with X, to enjoy the same advantages conceded to Z. hostilities, the formation of alliances, the regulation of com-
mercial relations, the settling of claims, the laying down of
Observance of Treaties rules governing conduct in peace and the establishment of in-
ternational organizations. The sovereignty of a state therefore
One of the fundamental rules of international law is cannot in fact and in reality be considered absolute. Certain
pacta sunt servanda, which requires the performance in restrictions enter into the picture: (1) limitations imp<)sed by
good faith of treaty obligations. Despite supervening hard- the very nature of membership in the family of nations and ~2)
lim.itati<::>n.e iIT'rt;>s':',:1 hy ~"':"<>ty !>.l:ip•.•l<it~')r•.s.
ships such as conflicts with the municipal law or prejudice
to the national interest, the parties must comply with It has already been observed that when a treaty con-
their commitments under a treaty and cannot ignore or flicts with the constitution of one of the parties, the former
modify its provisions without the consent of the other sig- is nevertheless internationally binding although unen-
natories. Willful disregard of a treaty is frowned upon by
forceable under municipal law. The reason, according to
the society of nations and is likely to stigmatize the erring Willoughby, is that "peculiarities of constitutional struc-
state, especially if the other contracting parties see fit to ture are without intem&tional significance to other states.
invoke the influence of world opinion as a means of en- Each state, as a member of the international society of
forcing compliance. Violations of treaties can lead to more
states, has an organ or government through which it
clra.c;.tic consequences, including war. communicates with and enters into contractual and other
In Taiiada v . .Angari:t,7" the Supreme Cou.1.t observed: relation~ wit.h other 8tates. Whatever undertakings are
One ,:>f th .. nlil<>!'t ~,,d fi.1T1rlMnental rules in inte':"T'"H,m~ 1 enternd jnto by such Ot'g'ani:; arP. internationally binding
law is pacta sunt servanda-international agreements must be upon the states which th~y represent."5
performed in good faith. "A treaty engagement is not a mere
moral obligation but creates a legally binding obligation on
Under these circumstances, the state called upon to
the parties xxx A state which has contl'acted.iYalid interna-

7• G.R. No. 118295, May 2, 1997. ·I I


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8
Willoughby,
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perform its obligatipns may ask for a revision of the treaty,

Fuiia~ental
· :«·-""
,

-._
Concepts of Public Law, 315, .
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I -
fNTF.RNA'l'IOtJAL LAW 'I'REATIBS ) '7!=1

amend its constitution to make it confo1m to the treaty The doctrine of rebu:;; sic stantibus was invoked by the
requirement, or pay damages to the other parties for its United States when it announced that it would no longer
inability to comply with its commitments. consider itself bound by the International Load Line Con-
But despite the general requirement of strict en- vention, which was concluded in 1930 to limit interna-
forcement of treaties, states have on occasion invoked the tional competition in the loading of cargo vessels. In justi-
doctrine of rebus sic stantibus, which Jessup describes as fying its stand, it claimed that the agreement contem-
"the equivalent exception to the maxim pacta sunt ser- plated peacetime commerce and voyages and that because
vanda. ..& According to. him, "the doctrine constitutes an ten of the thirty-six signa tories were at war and the other
attempt to formulate a legal principle which would justify twenty-six were maintaining a "precarious neutralityt the
non-performance of a treaty obligation if the conditions situation int.ended to be regulated had become "a wholly
with relation to which the parties contracted have changed different one." Accordingly, President Roosevelt declared
so materially and so unexpectedly as to create a situation that "under approved principles of international law, it
in which the exaction of performance would be unreason- has become, by reason of such changed conditions, the
able." 10 Thus, to use his own illustration, if states A and B right of the United States of America to declare the Con-
agree upon the reciprocal use of their respective port facili- vention suspended and inoperative."11
ties and B's only important port is thereafter ceded to It is to be noted, however, that the doctrine of rebus
state C, A should be released from continuing to accord the sic stantibus is subject to the following limitations: (a) it
treaty privileges to B, which is no longer able to perlorm applies only to treaties of indefinite duration; (b) the vital
its obligation. change must have been unforeseen or unforeseeable and
The Draft Law of Treaties prepared by the Jnt.erna- should not have been caused by the party invoking the
tional Law Commission r~cognizes the doctrine as a mod':' doctrine; (c) the doctrine must be invoked within area-
of terminating t.r PJ'lt.iP.~ in the following pr0vi~i,m : sonable time; and (d) it cannot operate retroactively upon
the provisions of the treaty already exeCJited pri.or to the
Where a fundamental change has occurred with regard to ('hl:lnge Qf cireumstances. 12
a fact or situation existing at the time when the treaty was en-
tered into, it may be invoked as a ground for terminating or
Treaty Interpretation
withdrawing from the treaty if:
a. The existence of that fact or sit uation constituted an As in the case of contracts, the basic rule in the inter-
essential basis of the cons~nt of the parties to the treaty; and
pretation of treaties is to give effect to the intention of the
b. The effect of the change is to tra11sform in an essen-
tial respect the charact er of th'c' nl-.lig::itiorn=i undertaken in the
parties. This should be discoverable in the terms. of the
treaty. treaty itself, which ordinarily has an official text or texts to
be used in case of conflicts in interpretation. Most treaties
-t ":"
; 6 Fed. Reg. 3999 (1941), cited in Hackworth, Vol. V, J>.
2
351,:c
• Q Jessup, 150. Kelsen, 358-368; Fenwick, 354-355; Wilson and, Tucker,t2'j~;
IO Ibid. 'Brierly
f ~ - .-.
245. .t
... ! 1 •
.• t ~
180 I1JTEIUJA'TfONAl. l .AW
1
rREA'l'lJ<;S 181

also contain a "pr otocol" or "agreed minutes" in which (5) By desistance of the parties, through express
certain terms used in the body are defined and clarified . mutual consent; desuetu.de, or the exercise of the right of
The usual canons of statutory construction are em- denunciation (or withdrawal), when allowed.
ployed in the interpretation of treaties. Thus, to mention a (6) By novation.
few, specific provisions must be read in light of the whole (7) By extinction of one of thA p i:nt.iP~ if the t.re~tv i!'.l
instrument and especially of the purposes of the treaty. bipartite.
Words used are to be given their natural meaning unless a (8) By vital change of circumstances under the doc-
technical sense was intended, and, when they have differ- trine of rebus sic stantibus.
ent meanings in. t h e contracting states, should be inter- (9) By outbreak of war between the parties in most
preted in . accordance with the usage of the state where cases, save specifically when the treaty was intended to
they are supposed to take effect. Doubts should be r e- regulate the conduct of the signatories during the hostili-
solved against the imposition of obligations and in favor of ties, or to cede territory, or to fix boundaries. AB held in
the freedom and sovereignty of the cont racting parties. At Techt v. Hudges,13 provisions of a treaty compatible with a
all event.s, an interpretation that will lead to an absurdity state of hostilities, unless expressly terminated, will be
is to be avoided and a more rational result preferred. enforced, and those incompatible rejected.
Where intrinsic aids are unavailing, resort may be (10) By voidance of the treaty because of defects in
made to extrinsic aids, such as the circumstances leading its conclusion, violation of its provisions by one of the par-
to the conclusion of the treaty, statements recorded at the ties, or incompa tibility .vith intemation::11 hn,v or thP. O.N.
time of the negotiations, the p1·eliminary materials used,
Charter.
i.e., the travau.."C preparatories, and the like.
Needless to say, conflicts in treaty interpretation may
be resolved only by agreement of the parties themselves or
by an international body and not uml~terally by the na-
tional courts of the contracting parties. Decisions of such
courts are received with refl.p~,:t. but not RB ~.ut.hority.
Termination of Treaties
A treaty may be terminated in any of the following
ways:
(1) By expir::itjno. of the ter.m, which may be fixed or
s ubject to a resolutory condition.
(2) · By accomplishment of the purpose.
(3) By impossibility of performance.
(4), By loss of the subject-matter. 13
128 N.E. 185 (1920).
,~.~ l 11

N A'l'IONALITY AMl STATELESSNESS 183

Chapter 15 the right to vote for its public officerR like the President of
the United States. The term subject, on the other hand,
NATIONALITY AND STATELESSNESS
has particular reference to the naLionals of monarchial
regimes, e.g., a British sub.iect, who may be a citizen of the
IT HAS ALREADY BEEN STRESSED that, save in cer- rTnit.P.d Kingnom or of nnP. of it.~ ~ol oniP.C\.
tain cases, the individual is merely an object and not a
subject of international law and is thus not directly gov- Acquisition of Nationality
erned by its rules, both in the enjoyment of rights and in
the performance of duties. Ordinarily, the individual can Nationality may be acquired by birth or by naturali-
zation. An individual acquires the nationality of the state
participate in international . relations only through the
instrumentality of the state to which he belongs, as when where he is born jure soli or the nationality of his parents
'. his government asserts a diplomatic claim on his behalf jure sanguinis. Naturalization, on the other hand, is a
for injuries he may have suffered in a foreign jurisdiction. process by which a foreigner acquires, voluntarily or by
Th.is remedy is generally not available to him if he is operation of law, the nationality of another state.
stateless for there would then be no entity with interna- Naturalization may be direct or derivative.
tional persona lity to intercede for him for the protection or Direct naturalization is effected: (a) by individual
vindication of his rights under the law of nations. Viewed proceedings, usually judicial, under general naturalization
in this light, nationality acquires not only municipal but laws; (b) b) special act of the legislature, often in favor of
international significance. distinguished foreigner,3 who have rendered some notable
Nationality is the µe that binds an individual to his service to the local stat.e; (c) by collective change of na-
state, from which he can cla im protection and whose laws tionality (naturalization en masse) as a result of cession or
he is obliged to obey. In other words, nationality is mem- subjugation; and (d) in some cases, by adoption of orphan
bership in a political community with all its concomitant minors as nationals of the state where they are born.
rights and obligations. This term is often used inter- Derivative naturalization in turn is conferred: (a) on
changeably with citizenship, which however, has a more the wife of the naturalized husband; (b) on the minor chil-
exclusive scope in that jt applies only to certain members dren of the naturalized parent; a nd (c) on the alien woman
of the state accorded more privileges than the rest of the upon man-iage to a national. 1 Derivative naturalization
people who also owe it allegiance. Thus, during the Ameri- does not always follow as a matter of course, for it is usu-
can regime in tb{s country, Filipinos and Amerioms w~re ally made subj8ct t.o stringent restrictions and conditions.
both considered nationals of the 'United Stat.Rs d.s a.· 1:iB Our mYn law~, for inFtance, provide that an alien wom8n
oth er states but Filipinos were n evertheless not entitled to married to a Filipino shall acquire his citizenship only if
American citizenship rights for purposes of the admini- she herself might be lawfully naturalized.2
stration of the internal affairs of the paren~ stat;e, such as
I
Hackwm:th, )l.-3 .
2
t:!1~
~ t Yao v. Commissioner ofl.mmigration, L-21289,,
182 · • See
Oct. 4, 1.9J l.
t 1
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~

184 l1"TF.RNATTONAL LA\V N A I HJ'. ~ALI'l'Y A?-: D 8Ti\TELESSNESS V.~!5

M \1 ltiplP. Nationality Loss of Nationality

An individual may sometimes find himself possessed Nationality may be lost voluntarily or involuntarily.
of more than one nationality because of the concurrent The voluntary methods include renunciation, express or
application to him of the municipal laws of the states implied, and reque!:,t for release, both of which usually
claiming him as their national. For example, a child born precede the acquisition of a new nationality. The involun-
in the United States of Filipino parentage would be a citi- tary methods are fo,feiture as a result of some disqualifi-
zen of that country under the jus soli as prescribed by cation or prohibited act like enlistment in a foreign army
American law and at the same time a citizen of the Philip· or long continued residence in a foreign state, and substi-
pines under our Constitution, which recognizes only the of
tution one nationality for another following a change of
jus sanguinis. Again, under the doctrine of indelible alle- sovereignty or any act conferring derivative naturaliza-
giance, as observed by some states, an individual may be tion.4
compelled to retain his original nationality notwithstand
Conflict of Nationality Laws
ing that he has already renounced or forfeited it under the
laws of a second state whose nationality he has acquired. To provide against conflicts arising from divergent
An illustration would be the case of a woman who municipal laws on nationality, the following rules were
upon marriage to a foreigner continues t:o be a national of embodied in the Hague Convention of 19::lO on fh'l C:onflir.t
her own state under its laws while also acquiring her hus- ofN M.ion::iliry T·?.w~:
band's nationality in accordance with the laws of his
Art. 1. It is for each Stat.e to determine under its law
state.29 Also in point is the William's Case,3 where an
who are its nationals. This law shall be recognized by other
American citizen who had accepted a commission in the States insofar as it is consistent with international conven-
French navy was convicted of violating the Neutrality Act tions, international customs, and the principles of law gener-
of 1874 notwithstanding his defense that he had boon ally recognized with regard to nationality.
naturalized in France; the court held that he had no power Art. 2. Any question as to whether a person possesses
to renounce his allegiance without the consent of the the nationality of a particular State shall be determined in ac-
cordance with the law of the State.
United States and was, therefore, still subject to it~ la'l\1'3.
Art. 3. Subject to the provisions of the present Conven-
By contrast, a state may allow any of its nationals to tion, a person having two or more nationalities may be re-
remain as such even if he may have acquired another na- garded as its national by each of the States whose nationality
tionality, as where he is conferred an honorary citizenship he possesses.
by a foreign government. Art 4. A State may not afford diplc,matic protection to
one of its nationals against a State whose nationality such per-
son also possesses.

i .. Phil. Constitution, Art. III,


~ ::' i::t• ...~ :
Sef ~] i, .'.: -
Art. 5. Within a third State, a person having more -
~-,. th~:'l on:_:ationality shall be treated as if he had only one~ ~ JJ
3
U.S. Ci1:. Ct. Dist., 1799; Fen~iclt,f ~ ~· 152.
-,tll - l.t·,--·
- 'i . . 1· ·t., . - .!=i·· li;.
·lif
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.
. .
rnR 00£ftNA'r1,·1N:,L LAW
N,-\TIONALTTY ANO STATJ::IR~!':l\lJ?"::S
187

Without prejudice to the application of its law in matters of


personal status and of any convention in force, a third State 1JNITED STATES (ALEXANDER TET ,T ,RGB) v.
shall, of the nationalities which any such person possesses, AUS'I'R.TA AUD HUNGARY
recognize exclusively in its territory either tho nationality of
the country in which he is habitually and principally resident Tripartite Claims Commission, 1928; Decisions
or the nationality of the country with which in the circum- and Opinions (1929), p. 71
stances he appears to be in fact most closely connected. (Prin-
ciple of Effective or Active Nationality) Question: Could the Austrian government subject
Art. 6. Without prejudice to the liberty of a State to ac- Alexander Tellech, who was born of Austrian parents in
cord wider rights to renounce its nationality, a person pos- the United States, to compu1sory military service?
sessing two nationalities acquired without any voluntary act
on his part may renounce one of them with the authorization of Held: "The action taken by the Austrian civil autho-
the State whose nationality he desires to surrender. This rities in the exercise of their police powers and by the Aus-
authorization may not be refused in the case of a person who tro-Hungarian military authorities, of which complaint 1S
has his habitual and principal residence abroad, if the condi- made, was taken in Austria, where claimant is voluntarily
tion laid down in the law oft.hi> !=::b,t.. ._.,1,""" n'!\ti,.,nality he de-
sires to surrender are satisfied.
residing, against claimant as an Austrian citizen. Citizen
ship is determined by rules prescribed by municipal law.
Thus, where a person possesses both Philippine and Under the law of Austria, to which claimant had volun-
American nationality, his claim to Philippine nationality tari1y subjected himself, he was an Austrian citizen. The
shall be decided on the basis alone of Philippine law, to the Austrian and the Austro-Hungarian authorities were well
exclusion of all other laws. If, on the other hand, he claims within their rights in dealing with him as such. Possessing
American nationality, the matter shall be resolved on the as he did dual nationality, he voluntarily took the risk
basis alone of American law, to the exclusion of all other incident to residing in Austrian territory and subjecting
laws. himself to the duties and obligations of an Austrian citizen
But if the issue of his real nationality is raised in a. arising under the municipal laws of Austria."
third state, say Spain, the laws of that country will obvi- THE CANEVARO CASE
ously be inapplicable as h e does not claim Spanish nation-
ality. In this situation, Spain shall apply the principl~ of Tribunal of the Permanent Court of Arbitration,
effective or active nationality, under which the dual na- 1912; Scott, Hague Court Reports, 284.
tional shall be considered the national exch1i::iivP.ly of r.h"'
state .vith .vhich hP. is mni;:.t. r.l"~l:'ly i::onneded. Question: May Ita ly file a diplomatic claim agairist
Pero. on behalf of Rafa.el Canevi:iro, who is a national of
both stat-':!s undP.r t.1,1'\;,._. respective m •.u,ii:-ipal laws?
Held: "Whereas, according to Peruvian legislation
(34 of the Constitution), Rafael Canevaro is a Peruvian by
birth because born on Peruvian terr-itory, and, whereas, on
the other hand, according to Italian legislation (Article 44
of the Civil Code) he is of Italian iiationali ·u1 .
. ~ ~use born
. : fl ,.·'t~,l;,i
. "..~. ~· ·
!l!!.
NI

lNTERl'lJ\'I'J0N~T T,t,:W NATIONALITY ANn STA·ri::1.eSSNESs 189


188

of an Italian father; whereas, as a matter of fact, Rafael dence in that country at the time of his application for
Canevaro had on several occasions acted as a Peruvian naturalization . . . No intention of settling there was
citizen, both by running as a candidate for the Senate, shown at that time or realized in the ensuing weeks,
where none are admitted except Peruvian citizens and months or years-on the contrary, he returned to Guate-
where he succeeded in defending his election, and, par- mala very shortly after his naturalization and showed
ticularly, by accepting the office of Consul-General for the every intention of remaining there ... Naturalization was
Netherlands, after having secured the authorization of asked not so much for the purpos<:-) of obtaining a legal
both the Peruvian Government and the Peruvian Con- recognition of Nottebohm's membership in fact in the
gress; . . . under these circumstances, whatever Rafael population of Liechtenstein, as it was to enable him to
Canevaro's status as a national may be in Italy, the Gov- substitute for his status as a national of a belligerent State
ernment of Peru has a 14ight to consider him a Peruvian that of a national of a neutral State, with the sole aim of
citizen and to deny his status as an Italian claimant..." thus coming wjthin the protection of Liechtenstein but not
of becoming wedded to its traditions, its interests, its way
THE NOTTEBOHM CASE of life or of assuming the obligations-other than fiscal
obligations-and exercising the rights pertaining to the
I.C.J. Reports, 1955, p. 4 (Judg. April 6; 1955)
status acquired.
Facts: Nottebohrn, a German by birth, had been a "Gu~temala iR under no obligation to recognize a na-
resident of Guatemala for thirty~four years when he ap- tionality granted in such circumstances. Liechtenstein
plied for and acquired naturalization in Liechtenstein one consequently is not entitled to extend its protection to
month before the outbreak. of World War II. Many mem- Nottebohm vis-a-vis Guatemala and its claim must, for
bers of his family and his business connections were in this reason, be held to be inadmissible."
Germany. In 1943, Guatemala, which had declared war on
Germany, confiscated all his properties on the ground that Statelessness
he was an enemy national. Liechtenstein thereupon filed Statelessness is the condition or status of an individ-
suit against Guatemala on his behalf as a naturalized ual who is born without any nationality or who loses his
citizen of Liechtenstein. nationality without retaining or acquiring another. An
Question: Was Nottebohm'R naturalization in Liech- example of the first case would be that of a child born in a
tenstein binding on Guatemala? state where only thejus sanguinis is recognized to parents
Held: "The courts of third States, when they have whose state observes only the jus soli. The second case
before th':lm an i.ndividl, ~l \Vhom two cit.h er States hold to may be illustrated by ar1 individnal who after renO'•Jn.-ing
be their national, seek to resolve the conflict by having his original nationality in order to be naturalized in an-
recourse to international criteria and their preva.iling ten- other state is subsequently denaturalized and is thereafter
¢tency is to prefer the real and effective nationality. . . denied repatriatiorr 1:5y his former country.
.
(Nottebohm's) actual connections
. .,
with Liechtenstein were
~emely tenuous. No settled abode, no prolo1tg,.ed resi-
In such cases;'" the individual is, from the traditional
viewpoint, powerless to !a~sert any right that otherwise
} - t ' .. . . -
-$- ' _;·

~·# ·~ ~ ·"-
l
·i
~ •;
. f. i.

... . ·"
mo LWERNATIO.NAL LA"; NArn)1'·,LlTY AND STATELESSNESS 181

would be available to him under international law were he of nationality by an individual upon hi8 retention or acqui-
a national of a particular state. Any wrong suffered by him sition of another nationality, whether such loss be by ex-
through the act or omission of a state would be damnum patriation, naturalization as to the wife and minor chil-
absque injuria for in theory no other state had been of- dren, or adoption. In t.he case of naturalization, the wife
fended and no international delinquency committed as a and children retain their existing nationality if they are
result of the damage caused upon him. This is so because not also naturalized and, moreover, the wife will acquire
any injury to the individual by a foreign jurisdiction is, her husband's new nationality, if permitted, only with her
legally speaking, not a violation of his own right hut of the own consent. The adopted child's existing nationality is
right of his state to the protection of its nationals; the right also not lost if he does not acquire the adopter's national-
to complain belongs not to him but to th~ stat':' nf whi<>h he ity. In other cases, it is provided that children shall have
;~ i:i n~t.ional. As explained ii, onP. ~M,P.:
the nationality of the state of their birth whenever their
parents are: (a) unknown; (b) stateless or of unknown
The relation of rights and obligations created between nationality; or (c) a father who is stateless or of unknown
two States upon the commission by one of them of an act in
violation of International Law arises only among States subject
nationality and a mother who is a national of the state
to the international juridical system. There does not exist in where they are born.
that system. any relation of responsibility between the trans- All this does not mean, however, that a stateless in-
gressing State and the injured individual for the reason that dividual is entirely without recourse under the law of na-
the latter is not subject to International Law. The injury in-
flicted upon an individual, a national of the claimant State,
tions. Under the Covenant Relating to the Status of
which implies violation of the obligation imposed by Interna- Stateless Persons, adopted in 1954, he is entitled to,
tional Law upon each member of the Community of Nations, among others, the right to religion and religious instruc-
constitutes an act internationally unlawful, because it signifies tion, access to courts, elementary education, public relief
an offense against the State to which the individual is united
by bond of nationality. The only juridical relation, therefore,
and assistance and rationing of products in short supply,
which authorizes a State to exact from another the perform- as well as t:reatmP.nt no lP.ss favorable than that accorded
ance of conduct prescribed by International Law with respect to aliens generally. Moreover, the terms of the Universal
to individuals is the bond of nationality. This is the link exist- Declaration of Human Rights are sufficiently broad to
ing between that law and individuals and through it alone are
encompass the stateless individual with its protection and
individuals enabled to invoke the protection of a State and the
latter to intervene in their behalf. A State, for example, does sympathy as a member of the human family.
not commit an international delinquency in inflicting an in·
jury upon an individual lacking nationality, and consequently
no Swte is empowered to interwme or complain '"'.l hi~ hA!i,ilf
either before or after the inj u1y.

It was in view of this difficulty that the Hague Con-


vention of 1930 adopted certain rules calculated to avoid
the condition of statelessness and all its attendant incon-
veniences. Briefly stated, tbes}
.,, . rules would condition loss
'-. II
f E -.,; .:
- :- ra ·
•. 1" \ :..
ThEATMEm OF Al.TF.l'lS
193

Chapt':'T' lR
tate against the independence of the state and subordin ate
its own will to the welfare of the alien.
TRE.ATMENT ()F ALIENS
It is also an accepted principle that the state is not an
insurer of the life or property of the alien when he is
2
IT IS WELL SETI'LED that every state has the right, as within its territory. Like all individuals exposed to the
inherent in sovereignty and essential to its own security incidents of social intercourse, he is expected to take the
and existence, to deterntin~ in what cases and under what customary precautions for the protection of his own rights
conditions foreign~rs may be admitted to its territory. If it and to avail himself of the usual remedies when these
sees fit, it may even bar their entry altogether. Once it , rights are violated. Accordingly, the state generally cannot
decides to accept them, however, its competence ~s territo- be held responsible if the alien is victimized by a pick-
rial sovereign is limited by the requirement that they be pocket or a swindler or is hurt in an accident through the
treated justly, in accordance with the law of nations. If fault of another individual and is unable to redress the
this duty is not observed, the alien and his state would wrong done to him. The relation between him and the
have va lid cause for complaint. state in these cases is too tenuous to make the latter liable
This is not to suggest that the a lien is entitled to spe- for the injury he has sustained.
cial treatment over and above that accorded the national
The Doctrine of State R esponsibility
of the local state. On the contrary, the alien cannot as a
rule claim a preferred position vis-a-vis the national of the Notwithstanding the above observations, there are in-
state where he is at best only a guest. Thus, the foreigner stances when the alien can claim a more favored position
may not enjoy the right to vote, to run for public office, to than the national of the local state and, in proper cases,
exploit natural resources, or to engage in certain busi- hold the state liable for injuries comnutted against him
nesses regarded as vital to the interests of the local state. while within its territory. Such instances are governed by
Denial of su ch prerogatives is a sovereign act of the local what is known as the doctrine of state responsibility. Under
estate to which the foreigner must be prepared to submit. this doctrine, a state may be held responsible for: (a) an
It is, in fact, a cardinal rule of international law that international delinquency (b) directly or indirectly imput-
the foreigner must accept the institutions of the local state able to it (c) which causes injury to the national of another
as he finds them. 1 This rule is better stated in the saying, state. Liability vrill attach to the state where its treatment
"Wben in Rowe, do as th~ Romans do." Considering his of the alien falls below the international standard of justice
less privileged position, he cannot demand that the ways or where it is remiss in according him the protection or
of his host country be altered to suit his own convenience redress that is wan-anted by the circumstances.
or adjusted to gratify his own interests. This would mili- The doctrine of state responsibility bas been fre-
quently invoked in recent tjmes because of the expanding
' Jess~.V· 103.
192 2
]bid.
·,
HM lM'I'F·'ANATTONAL LAW
'l'REAn1ENT OF Al,lE!-:~ 195

need and desire of nations for wider relations in their The test of the international standard of justice was
commercial and cultural activities. Its function is to assure applied in the Chattin Case,3 where the United States fi!ed
the traveler that when his rights are violated in a foreign a claim on behalf of a national who was allegedly arrested,
state, he will not be denied any remedy simply because he tried and sentenced illegally by the Mexican government
is not one of its nationals. The idea, in other words, is to and subjected to inhuman treatment in jail. In upholding
encourage more intercourse among the peoples of the most of the charges filed by the claimant, the arbitrators
world through inter-visitation of their respective countries. declared in part:
The whole of the proceedmgs discloses a most astonish-
The Intern~tirnrnl ~t.andard of J ustfo<E' ing lack of seriotasness on the part of the Court. . . Neither
during the investigation nor during the hearings in open court
The int.ernatwnal standard of justice is a concept of was any such thing as an oral examination or cross-
controversial content that has defied precise definition. examination of any importance attempted. It seems highly im-
Some writers describe it as the standard of the reasonable probable that the aci:used have been given real opportunity
during the hearings in open court, freely to speak for them-
state, that is, as referring to the ordinary norms of official selves. It is not for the Conunission to endeavor to reach from
conduct observed in civilized jurisdictions. As thus envi- the record any conviction as to the innocence or guilt of Chattin
sioned, the international standard of justice is deemed not and his colleagues; but even in case they were guilty, the
satisfied if the laws of a state are intrinsically unjust, as Com.mission would render a bad se1vice to the government of
when there is a marked disproportion between the degree Mexico if it failed to place the stamp of its disapproval and
even indignation on a criminal procedure so far below interna-
of an offense and the penalty imposed for it, e.g., when a tional standards of civilization as the present one ...
minor crime like petty theft is punished with death. The Bringing the proceedings of Mexican authorities to the
laws will also be below this standard if they authorize the test of international standards . . . there can be no doubt of
summary decision of contentious cases without the obser- their being highly insufficient. Inquiring whether there is con-
vance of the usual rights to notice and hearing and other vincing evidenc~ of thes~ unjust proceedings ... the answer
must be in the affirmative. Since this is a case of alleged re-
generally accepted requirements of due process. sponsibility of Mexico for injustice committed by its judiciary,
Where the laws of the state fall below the interna- it is necessary to inquire whether the tr~atment of Chattin
tional standard of justice, it is no defense that they are amounts even to an outrage, to bad fait.h, to wilful neglect of
applicable not only to aliens but as well, and equally, to duty, or to an insufficiE>11cy of government action recogni1able
by every unbiased mim ...; and the answer her~ ?.g~i.n "an only
the nationals of that state. The relations of that state with hP. in the affirmative.
its own nationals are purely municipal; international law
is involved in its relations with the nationals of other Failw·e of Protection or Redress
states. Hence, while the national may not dema.nd, say,
the right of confrontation if this is not granted bv the local Even if its laws conform to the international standard
law, the foreigner can. This is the view morP. generally of justice, the sh1te may st.i.ll be held liable if it does not
favored as against the so-called doctrine , qf equality of make reasonable effq_rts to prevent injury to the ~liP.n m-,
.' f
treatment. '
' U.s: (Ch..a71
· ,){it'' fxi.co, General Claims Commission, 1921.
" . t .....l:i:
,if ~ - - t } ;. . . . .} ff }
H)6 J~rrEP!-J&'T'l()NA1. LAw 1'~1!:ATMEN'f 0~· A 1.l li'l.l~
197

having done so unsuccessfully, fails to repair such injury. States in the Janes Case, 1 where it appeared that eight
Thus, the state will be h eld liable if a foreigner is killed years had already elapsed and the known murderer of an
and is shown that its authorities were informed in ad- American national ha~ not yet been arrested and punished.
vance of the plot to kill him but did not act to forestall it. It is important to.remember in this connection that re-
Furthermore, even if it did take reasonable precautions, sponsibility does not irrunediately attach to the state upon a
the state would still be held liable if it thereafter does not showing of a failure to prevent or redress an injury to ali-
employ the necessary diligence to anest and punish the ens. Distinction must be made between direct and indirect
malefadors or !)therwise redress the wrong committed. state responsibility. The rule is that where the interna-
The degree of diligence required must, of course, vary tional delinquency was committed by superior government
with tne circumstances of every case. It is not as easy to officials or organs like the chief of state or the national leg-
control a riot as it is to prevent an individual crime, nor islature, liability will attach immediately as their acts may
are the problems invariably the same in the apprehension not be effectively prevented or reve1·sed under the constitu-
of the criminals. In the Noyes Case,4 for example, the Re- tion and laws of the state. However, where the offense is
public of Panama was not held liable for injuries sustained committed by inferior government officials or, more so, by
by an American national from an unruly and intoxicated private individuals, the state will be held liable only if, by
crowd in a small village, it having been shown that the reason of its indifference in preventing or punishing it, it
local police force of three members was reinforced when can be considered to have connived in effect in its commis-
disorder was apprehended, that a policeman and the po- sion.
lice chief himself tried actively to protect Noyes when he
was attacked, and that it was not possible to pinpoint the
Exhaustion of Local Remedil::'-~
culprits in view of the tumultuous nature of the incident. Bti.t even assurnin~ the liability of the state for an in-
By contrast, compensation was awarded to the ternational delinquency, its enforcement cannot be
Unit.ed States in the Youmans Case, 5 where it was shown claimed by the injured foreigner unless he first exhausts
that the very troops sent to disperse a Mexi.can mob joined all available local remedies for the protection or vindica-
it in killing a n 1Jmber of Americans. In the Galvan Case,6 tion of his right:s. 8 This is a corollary of the principle that
the reason for holding the United States liable for the the foreigner must accept the institutions of the state as
killing of a Mexican in Texas was not the failure to appre- he finds them. The generally accepted view is that the
hend the criminal but the unreasonable delay in his prose- state must be given an opportunity to do justice in its own
cution, which dragged inconclusively for six years. For its regular way a11d without. unwarranted interference with
part, Mexico was ordered to pay damages to the United its sovereignty by other states. As has boon aptly observed,
. "It is a sound principle that where there is a judicial rem-

• U.S. (Noyes) v. Pa nama, .General Claims Commission, 1933.


$ U.S. (Yownans) v. Mexico, Opinions of the Commissioners,
1
U.S. (Laura B. Janes) v. Mexioo, Opinions of the C.OJ.Diliissii>ner,s,.
1927. 1927.
• Mexico (Galvan) v. U.S:, Opipions of the Commissioners, 1926. 8
Schwarzenberger, 166.

f!
Jl,
·1 198 lN'rf.~N A'flONAL LAV' T 1,~~ ·1·u 1>N I OJ. ALIE NS Hll:l
I
I
cdy, it must be sought; and only if it is sought in vain does This requirement may yet yield to the growing view
diplomatic interposition become proper.'r.1 that the individual as such sh ould be allowed to institute
This r equirement may be dispensed with, however, if an international claim against a foreign state for violation
there are no remedies to exhaust, as where the laws are of his own personal rights. As it is now, it is already sub-
intrinsically defective or there is laxity or arbitrariness in ject to the exception that the United Nations may file a
their enforcement or where the courts are corrupt or diplomatic claim on behalf of its officials, as affirmed in
where there is no adequate machinery for the administra - the case of Count Falke Bernadotte,1' who was assassi-
tion of justice. There would also be no remedy available nated while mediating the Palestine crisis. It is notewor-
from the so-called "acts of state" which are not subject to thy also that under the European Convention on Human
judicial r eview. Rights, the European Conunission on Human Rights and
also contracting states other than the state of the injured
Resort to Diplomatic Protection individual may bring alleged infractions of the convention
before the European Court of Human Rights.
If t he injured foreigner has exhausted all local reme-
dies but without success, he may then ava il himself of the Enforcement of Claim
assistance of bis state-but only if he has a state. Other-
wise, he will have no party to represent him, and he by An international claim for damages may be resolved
himself, being a mere individual, cannot institute his through negotiation or, if this fails, any of the other meth-
claim in his own name. In theory, as previously stated, ods of set tling disputes, like good offices, arbitration, and
any injury to an alien is a violation not of his own personal judicial settlement. Th ere have been cases also where
right but of the right of his state to have its nationals pro- hostile and forcible measures have been employed and
tected whenever they are in a foreign country. It follows when war itself has been resorted to as a means of com-
that where the injured alien is stateless, ms case will be pelling compliance with the demands of the injured state.
one of damnum absque injuria and cannot be the subject In the event that the responsibility of the state is es-
of diplomatic protection. tablished or acknowledged, the duty to make reparation
So imrortant is the ti e of nat,.ona lity, in fact, that it is wil I arise. Such reparation may take the form of restitution
req•1ir.ed to exist from the time of the injury until the time or, where this is not possible, satisfaction or co1npP.nSa·
1
the international claim is finally settled. ~ Once this tie is tion, 13 or all three of these together. Thus, the settlement
broken, the claim itself is deemed automatically abated. If, may consist of the restora tion or replacement of the object
therefore, th e injured national dies while the claim is un- of the offense, a formal apology by the delinquent state
der consideration and it should happen that his heirs are and payment of damages as well.
not nationals of the claimant state, the claim will lapse.
~

9 Harvard::Research Draft on the Responsibility of States, 23

~.•
A.J.1.L., Sp . $upp. r~3. " 1949 I.C,J. Rep. 147, 43 Am. J. lnt1.' L-589 ( l949).
12

10
Scb,vaJ::tiuiberger,
- ~ .. 169. Schwarzenberger, 1:_69. :{ 1
, • ! .llc·£ :a

~'
• ••
I!
JNI'ERNAT101'1 AT. J. .AW T~·· .i'PMF,NT OF ALIENS 201
'J.00

Avoidance of State H.esponsibiJ i ty United States (North American Dredging Co.Ju. Mexico: 13
Under the rules of international law, may an alien lawfully
The doctrine of state res ponsibility is applied more make such a promise (as is ~mb-Oclied in the Calvo clause)? The
frequently to to:rtious rather than contractual liability Commission holds that he may,
but at the same time holds that he
because of the unwillingness of roost states to act as "col- C8JU10t deprive the. government of his nation of its undoubted right
of applying international remedies to violations of international law
lection agencies" for their nationals entering into private
committed to his damage. Such government frequently has a larger
agreements with or in foreign countries. Nevertheless, to interest in maintaining the principles of international law than in
avoid the intervention of the alien's state in contracts of reoovering damage for one of its citizens in a narticular case, and
this nature, the local state sometimes incorporates therein manifestly such citizen cannot by contract tie in this resJ)2ct tl,o
what is known as the Calvo clause. This is a stipulation by hands of his government.
which the alien waives or restricts his right to appeal to Rxclusion of Aliens
his own state in connection with any claim arising from
the contract and agrees to lirmt himself to the remedies The state may also avoid liability to aliens by refusing
a:v::iilable under the laws of the local state. their admission, but this is not regarded as sound policy
A typical Calvo clause follows: since it would provoke retaliation in kind and ultimately
isolate its nationals from the rest of the international com-
The contractor and all persons who, as employees or in munity. Conversely, it would not be advisable either if the
any other capacity, may be engaged in the execution of the
entry of aliens were allowed indiscriminately because they
work under this contract either directly or indirectly, shall be
considered as Mexicans in all matters within the Republic of might pose a danger to the welfare and especially the secu-
Mexico, concerning the execution of such work and the fulfill- rity of the admitting com1try. Instead of banning them alto-
ment of this contract. They shall not claim, nor shall they have, gether, therefore, or permitting their unlimited influx, the
with regard to the interests and the business connected with practice of most states now is to regulate the immigration
this contract, any other right or means to enforce the same
than those granted by the laws of the Republic of Mexico, nor and stay of aliens and to provide for their deportation
shall they enjoy any other rights than those esta blished in fa- whenever warranted. Arrangements may also be made, in
vor of Mexicans. They are consequently depiived of any rights proper cases, for the extradition of alien fugitives.
as aliens, and under no conditions sbJ11l t.he intervention of for- n~portation is defined as "the removal of an alien out
e ign tliplnm.at.ir. ~ents be p<?rrnit.tP.ti, in anr matter r~htPn t.o
of the country, simply because his P"'~sen~e is deemed
this contract. ·
inconsistent with the public welfare, and without any
Insofar as it. requires the alien to exhaust the reme- punishment being imposed or contemplated, either under
dies available in the. local st::itA, the Calvo clause may he the laws of the country out of which he is sent, or under
enforced as a lawful condition of the contract. However, it those of the country .t o whlch he is taken."1•a It differs from
may not be interpreted to deprive the alien's state of the "exclusion" which is the denial "of entry to an alien.
right to protect or vindicate his interests in case they are
injured in another state as such waiver can legally be
w 13 'I- ..
issiw 19.•
( '!. ~ ·1
·m ~de:not by him but by his own state. Thus, as held 3
' •
.
General Claims Comm
Black, 526.
~
.
- ~ .f
:!· , ·

.
-t .
·~{ . . .. .. j:
26.
·, '

..·
~ ·.
na
~,~

OOER.'lATlONAL LAW TREATMENT OF A.LIENS 203


202

In Tfarvey 1J. Santiagn ,1ai, the Supreme l;nnrt nh- as a gesture of <.:omity. It is not unusual for states to ren-
der assist.ance to e:3.ch other in the apprehension of crimi-
i::.erved: nals who have fl ed their respedi"P. j11rii;;<liM:iorn,.
Every sovereign power has the mherent power to exclude
aliens from its t.erritory upon such grounds as it may deem
Fundamental Principles of Ex.t.radition
proper for its self-preservation or public interest (Lao Tan Bun
v. Fabre, 81 Phil. 682 f1948]). The power to deport aliens is an
a ct of State, an act done by or under the authority of the sover- The fundamental principles governing extradit.irm are
eign power (In re McCulloch Dick, 38 Phil. 41 [1918)). It is a the following:
police measure against undesirable aliens whose continued (1) Extradition is based on the consent of the state
presence in the country is found to be injurious to the public
of asylum as expressed in a treaty or manifested as an act
good and the domestic tranquility of the people (Forbes v.
Chuoco Tiaco, et a l., 16 Phil. 534 (19101).
of goodwill. u
(2) Under the principle of specialty, a fugitive who is
Extradition extradited may be tried only for the crime specified in the
Extradition is the surrender of a person by one state t.o request for extradition and included in the list of offenses
another state where he is wanted for prosecution or, if al- in the extradition treaty. 15 If he is charged with any other
ready convicted, for punishment. offerse committed before his escape, the state of refuge--
It differs from deportation in that it is effected at the and not the accused-has a right to object; nevertheless,
request of the state of origin whereas deportation is the the prosecution will be allowed if the extraditing state
unilateral act of the local state; it is based on offenses gen- agrees or does not complain.
erally committed in the state of origin whereas deportation (3) Any person may be extradited, whether he be a
is based on causes arising in the local state; and it calls for national of the requesting state, of the state of refuge or of
16
the return of the fugitive to the state of origin whereas an a nother state. The practice of many states now, however,
undesirable alien may be deported to a stat:e other than his is not to extradite their own nationals but to punish them
own or the state of origin. under their own laws in accordance with the nationality
principle of criminal jurisdiction. Noteworthy, though, is
Basis of Extradition
the case of Tourville, a British subject who, after murder-
The extradition of a person is required only if there is ing his wife in the Tyrol, escaped to his home in England
a treaty between the state of refuge and the state of origin. but was extradited back t.o Austria where he was con-
In the absence of such a treaty, the local stat:e has every 111cted and hanged. 1·7
right to grant asylum t.o the fugitive and t.o refose to de- (4) Political and religious offP.nders are generally
liver him back to the latter state €ven if he iR its na.t.ional. not subject t0 ~xtrl'lrlir.inn. Tt has been held that "in 0rrl1>r to
If, notwithstanding this right, the surrender requested is
still effected by the state of asylum, it is not because of a '
4
Fenwick, 331.
d emandable duty on its part but in pursuan!Xl 0~1··l.}~Y or 1
$
16
U.S. vs. Rausch~r.J 19, U.S. 407.
Oppenheim;La utei:yacbt, 698.
131> 162 SCRA 840. L
. .- -< l·f
,: •
.! '
"Ibid ., 700.
! "'··
..._ • .:
i t
,'
20A. TNTEni'IATIONAI. LAW 'f'RP.t,Tl\IE \JT OP ALI ENS ?.Ofi

constitute a n offense of a political character, there must be (5) In the absence of special agreement, the offense
two or more parties in the state, each seeking to impose must have been committed within the territory or against
18
the government of their own choice on the other." Hence, the interests of the demanding state. A case in point was
an admitted anarchist who fled to England after bombing the extradition of one Nillins to Germany by Great Britain
a Paris restaurant and a military barracks was held to be upon a sho,ving that he had sent from England forged bills
extraditable since he was considered not a political of- of exchange to a Berlin company as payment for goods he
19
fender but an enemy of all governments. had ordered and subsequently received. Although he was
But under the atteritat clause, the murder of the head in England all the time, it was held that he had obtained
of state or any member of his family is not to be regarded the goods under false pretenses in Germany and was,
as a political offense for purposes of extradition. Neither, therefore, subject to its laws.20
under the Genocide Convention, is the crime of genocide, (6) The act for which the extradition is sought must
which may consist of any of the following acts, committed be punishable in both the requesting and requested states
with intent to destroy, in whole or in part, a national, eth under what is known as the rule of double criminality.
r1ical, racial or religious group as such:
ProcP-i lnrP. of Rrln ulition
1. Killing members of the group.
2. Causing serious bodily or mental harm to members of If the surrender of a fugitive is sought, a request for
the group. his extradition is presented through diplomatic channels
3. Deliberately inflicting on the group conditions of life to the state of refuge. This request will be accompanied by
calculated to bring about its physical destruction in whole or in
the necessary papers relative to the identity of the wanted
part.
4. Imposing measures intended to prevent births within per son and the crime he is alleged to have committed. or of
the group. which he has already been convicted.
5. Forcibly transfeITing children of the group to another Upon receipt of this request, the state of refuge will
group. conduct a judicial investigation to ascertain if the crime is
It may be added that under the Universal Declara- covered by the extradition treaty a nd if there is a prima
tion of Human Right.s, "Everyone has tb.e right to seek and fade case against the fugitive according to its own laws. If
enjoy in other countnes asylum from persecution." How- there is, a warrant of surrender v.1111 be drawn and the
ever, "this right may no.t be invoked in the case of prC1secu- fugitive wm
DP. r:1el5v~n~rl to the state of ori.gin.21
tions genuinely arising from non-political crimes or from There have been instances when nationals of the
acts contrary t.o the purposes and principles of the United state seeking the fugitive have abducted him in the state
Nations." of refuge, as in the case of Adolf Eichmann, who was kid-
naped in Argentina by Israeli agents and taken to Israel, '
11 'Y~~,.r~ pewas subsequently executed for the murder of six.

10
18
In re Meunier, 2 Q.B. 415 ('1894), Oppenheim-Lauterpacht, 700.

'i 19 21
lbid. Fenwick, 331.
! .i'
- ,.. .
206 INTERNATIONAL L i> W

million Jews in World War II. But such acts are not al- Chapter 17
lowed under international law as they constitute a viola-
tion of the territorial integrity of the state of refuge. SETTLEMENT OF INTERNATIONAL
It would be different, however, if the abduction or a r- DISPlTT:R~
rest of the wanted individual had been effected by or wit h \
the help of the nationals of the state of refuge itself, as in
the famous Savarkar Ca.r;e, 22 where a prisoner en route to ACCORDING TO KELSEN, "a dispute exists when one
India escaped in a French port but was apprehended by a state claims that ano~her state should behave in a certain
local policeman and delivered back to the British authori- manner and that claim is rejected by the latter."1 An in-
ties. When France later demanded. the prisoner's ret urn on ternational dispute, in other words, is an actual disagree-
the ground tha t a formal request for h is extradition should ment between states rega rding the conduct to be taken by
have been made, it was held th at Great Britain was under one of them for the protection or vindication of the inter-
no obligation to comply. ests of the other. Where the disagreement has not yet
In Secretary of Justice u. Lantion, the Supreme Court ripened into a full-blown conflict or the issues have not yet
originally sustained the demand of Mark J imenez to be been sufficiently formulated and defi ned, there is what is
informed of the charges against him in the U.S. request for known as a situation. A situation is, therefore, the initial
2
his extradition. ~ On motion for reconsideration, however, stage of a dispute.
the decision was reversed, also by an 8-6 vote, on the A dispute is legal if it involves justiciable rights based
ground that snch charges were still b~i.ng P,yalu::rted and on law or fact susceptible of adjudication by a judicial or
no comolaint for <?:vt.rnnit.i,m had as vet been filed in arbitral tribunal. An example is a conflict on the interpre-
C0tl!'~ 24 . • tation of a treaty or the ascertainment of the boundaries of
adjacent states. It is political if it cannot be decided by
legal processes on the basis of the substantive rules of
international law because the differences of the parties
spring from animosities in their mutual attitudes rather
than from an antagonism of legal rights. Such would be
t he case if one state, in the exercise of its sovereign rights,
enacts :immigration laws discriminating against the na-
tionals of another state over the Jatrer's prote~ts. The solu-
tion to such a dispt1te lies not in the councils of the ronrt,<:1
but in the corridors of diplomacy.

21
' Kelsen, 376.
Oppenheim-Laui:erpacht, 703.
" 322 SCRA 160.
2
' 343 SCRA 3 77.
207

I'!
208 l NTEJtN/\TI0N.A' , T.AW SETTLE t,1EN'l' OP ftM'F.RUATIONAL DISl'l.ll'ES
209

Methods of Settling Disputes out their differences. In the end, where the issues dividing
Disputes are required. to be settled, conformably to them ber.omP i-rreconr.i.lable, they may find it necessary to
one of the basic principles of the United Nations, "by resort to the nltimate solution in the illogical arbitra.m'?nt
nf WJ'IT
peaceful means in such manner that international peace
and security, and justice, are not endangered.',2 Amicable M~thods
Unlike municipal law, international law has not yet
been able to provide for an adequate machinery for the The amica ble methods of settling disputes are nego-
peaceful settlement of disagreements among states by tiation, inquiry, good offices, mediation, conciliation, arbi-
compulsory processes binding on the contending parties, tration, }wi.icial settlerr.ent, and resort to regional and in-
such as are available from national administrative and ternational organizations. Except for negotiation, they all
judicial tribunals. The closest approach in the interna- involve the participation of a third party, such as a stat.e or
tional society to such agencies is the International Court of a prestigious statesman or jurist. These methods may also
Justice, but its jurisdiction is not general or obligatory; be availed of by the parties independently of the United
indeed, its competence to act is dependent on the consent Nations, or upon its recommendation or direction, or with
of the parties involved. A similar observation may be made its active participation.
even of the Security Council, wh ose powers are also mark- Negotia tion, which is generally the first step taken in
edly limited except where interna tional peace and security the settlement of an international dispute, is the discus-
are endangered. In this event, its intervention may be sion undertaken by the parties themselves of their respec-
forcibly imposed by it motu proprw, but even then its ef- tive claims and counterclaims with a view to their just and
fectiveness may be hampered by disunity among the Big orderly adjustment. The conversations may be brief or
Five, each of which has the power of veto. As for the Gen- protracted, depending on the issues in contention and
eral Assembly, it is not only inhibited from discussing any perhaps also on considerations of national pride. Where
dispute at the time under consideration by the Security the talks prosper and agreement is reached, it is usually
Council but its rather large and politics-oriented member- formalized in a treaty or, more directly, effected through
ship gen erally prevents an objective and dispassion ate the rectification of the injury ca used to the claimant state.
solution to an international conflict. Inquiry is an investigation of the points in question,
In consequence~states have on many occasions found on the theory that their elucidation will contribute to the
it necessary to settle th eir .dispute" by themselves J:Llone solution of the differences betwoon the parties. As most
without regRrd to l1igher 13.nthority. Initially at least, their dispures.; are caused by a misunderstanding of certain
efforts toward this end are peaceful and sometimes even factual situations , their clarification by an impartiB] a nd
friendly, but it is not uncommon for their mutual demands conscientious body can limit if. not entirely remove the
to exacerbate rather than resolve their disagreements, areas of disagreement. The findings of the party making
thus le.a.ding them to employ less amicable methods to iron the inquiry are not conclusive flpop the disputing states

..{ in the settlement of the 'conflict . ~ ii ;. .


but they nevertheless may exert a $trong moral influence

~
·~ff '..
:I
;
i
'
!

210 INTERNATIONAL LAW 8E'I'I'LEMI~NT OF lNTER:-<ATIONAL DISPUTF.S ~,1

Thus, in the famous Dogger Bank Case; Russian ves- tion, the services of the conciliator are not offered by the
sels fired in a fog on the English fishing fleet off Dogger third party but solicited by the parties in dispute.
Bank during the Russo-Japanese War and caused the Arbitration is the solution of a dispute by an impar·
death of two fishermen, injuries to others and considerable tial third party, usually a tribunal created by the parties
destruction of property. Russia maintained that the firing themselves under a charter known as the compromis,
was due to the approach of Japanese torpedo boats, and a which will provide for, among others, the composition of
commission of inquiry was created to verify this claim. The the body and the manner of the selection of its members,
finding was that there were no torpedo boats present at its rules of proceedings and sometimes even the law to be
the time of the incident and, as a result, Russia agreed to applied by it, and the issues of fact or law to be resolved.
pay £65,000 to Great Britain. Unlike in conciliation, the proceedings are essentially
Good offices is a method by which a thi_rd party at- judicial and the award is, by previous agreement, binding
tempts to bring the disputing states together in order to on the parties to the dispute.
\ enable them to discuss the issues in contention and arrive This method is similar to judicial settlement not only
at an agreement. This is usually employed when the par- in the nature of the proceedings and the binding character
ties are no longer on speaking terms, that is, when they of the decisions but also in the fact that the disputes sub-
have severed diplomatic relations or have actually com- mitted for adjudication are legal rather than political.
:1
r,1
d,
menced hostilities. The Russo.Japanese War, for example, They differ in the following points:
was terminated through the good offices of President (1} The judicial tribunal is, ge{lerally speaking, a
Theodore Roosevelt of the United States who succeeded in pre-existing and permanent body whereas the arbitral
bringing the parties together to the conference table for tribunal is an ad hoc body created and filled by the parties
the conclusion of a negotiated peace. to the dispute themselves.
A more active involvement than good offices 1s media- (2} Jurisdiction in judicial settlement is usually
tion, by means of which th~ third party does not merely compulsory whereas submission to arbitration is vofon·
provide the. opportunity for the antagonists to negotiate tary.
but also actively participates in their discussions in order (3) The law applied by the tribunal in judicial set-
to reconcile their conflicting claims and appease their tlement is independent of the will of the parties but may
feelings of resentment. 'The suggestions of the mediator be limited by them in arbitration proceedings.
are merely persuasive, however, and may hfl -r~jected The judicial settlement of international disputes is
without offense by the parties to the dispute. now entrusted to the International C0urt of Justice, which
The process. of conciliation also calls for the active super~'3ded the Permanent Court of T:ot.P.m::it.~onal .Justice
participation of a third party in the attempt of the dispu- under the defunct League of Nations. As previously noted,
tants to settle their conflict, and the recommendations the jurisdiction of the Court is not compuls~ry but depend-
made by it are lik;;ise not binding. But unlike in media- ent on the agreement of the part(es~to :sµbmit.to and be

bound by its decisions. Such conseht rµil:tbe-mapifested in
a Scott, Hague~6©,t.c1Uports 403 (1916). a treaty containing -what is calied 1the'}.;.'\xfui_prpmissary
f '
t I . - t· a·····~
r.. -. I'"f l (, f ,. "
~ -JS,'j
·. : - ~{,~,.-) tt ~. -
lNTRRl~ATIO!lAL f ,AV, SEITL!!:MUl'I' 0f' l~rnmtri\TICNAL DISPl'TES 'J.rn
212

clause," which empowers the Court to settle disputes gions of the world but with varying degrees of effectiveness
arising from the interpretation or the application of such depending on their respective charters. One of the declared
treaty, or through the so-called "optional jurisdiction objectives of the Association of South East Asian Nations
clause" in Ai:ticle 36 of the Statute. This article provides (ASEAN), for example, is "to promote peace and stability
through abiding respect for justice and the rule oflaw in the
t.hat-
relationship among c.ountries of the region anrl ::iclhP.rP.nr.P.
(1) The states parties to the present Statute may at any
time declare that they recognize as compulso,y ipso facto and t'=' tl1e prindples of the United Nations Charter."
without special agreement, in relation to any other state accept·
ing the same obligation,' the jurisdictwn of the Court in all legal Hni;;.tilP. MP.t.ho(llo:
disputes concerning:
\
Where the pacific methods of settling disputes are
(a) The interpretation of a treaty;
unsuccessful, states sometimes find it expedient to resort
(b) Any question of international law;
(c) The existence of any fact which, if established,
to what are known as the hostile or non-amicable meth-
would constitute a breach ofan international obligation; ods. These methods are not only unfriendly but may even
(d) The nature or extent of the reparation to be
involve illegal and coercive acts and are usually imposed
made for the breach ofan international obligation. upon weak countries by strong powers. Nevertheless, they
are regarded as a mild alternative compared to war, in the
(2) The declarations referred to above may be made un·
conditionally or on condition of reciprocity on the part of several sense that they may avoid the necessity of creating a more
or certain states, or for a certain time. serious stare of hostilities which might not be justified by
the nature of the dispute. It is still doubtful, just the same,
If any party to a case fails to perform the obligations
given this practical justification, if some of these methods
incumbent upon it under a judgment rendered by the
can be sustained in light of the principles announced in
Cow-t., the other party may have recourse to the Security
the Charter of the U nit.ed Nations.
Council which may, if it deems necessary, make recom-
me~dations or decide upon measures to give effect to the At any rate, the hostile methods of settling disputes
judgment.4 This does not preclude the employment of other may be classified into retorswns, reprisals and interven-
means directly by the other party, such as announcement of tion. The last having been discussed already, attention
the fact of noncompliance and appeal to world opinion to will now be given to the first two.
persuade the losing litigant to abide by the decision. Rewrsion is any action taken in ''retaliation where
Another peaceful method of settling disputes is action the acts complained of do not constitute a legal ground of
by region.al organizations, which may be resorted to by the offense but are rather in the nat.me of unfriendly acts but
parties on their 'JWil volition or t::ik~n by the borl.y itself J3t indirectly lmrtfol t0 otb8r sta tP.s."; The ~.ct 0f retalil'\t.inn is
its own instance if allowed by agreement of the members. also unfriendly but not illegal and may be in kind or of a
Several such organizations now different nature than the act that provoked it.
.... exist in the various re-
; \.)·

• U.N·. Charter, Art. 94.


!--'i?.t'l'U'HB!'-~r 0 P h :rF.ntlATIOtlAL DIRPUTES
214 hITERN/\.Ti'")NAL LAu: 215

Examples of retorsions are severance of diplomatic or tion, it was held that the death of the Germans at Nauli-
consular relations, suspension of commercial intercourse, laa "was not the consequence of acts contrary to interna-
boycott, stoppage of travel to the other state, denunciation tional 1aw imputable to either German or Portuguese
of treaties, imposition of higher tariffs a nd other trade authorities, either civit· or military," but was purely fortui -
barriers, currency restrictions, denial of loans and with- tous, being the result of misunderstanding and "of a cer-
drawal of privileges previously enjoyed, recognition of a tain impudence" on the part of the German officials. Add-
rival government, and adverse propaganda. ing that "there h as been evide nt disproportion between the
Reprisals, on the other hand, "are an act of self-help on incident of Naulilaa and the six acts of reprisals which
the part of the mjured state, responding after an unsatisfied followed it," the tnbunal concluded that the reprisals were
de.ma.nd to an act contrary to international law on the part unlawful '1.n view of the lack of sufficient occasion, of pre-
of the offending state. They have the effect of suspending vious demand and of admissible proportion between the
momentarily in the relations of the two states the obser- alleged offense and the reprisals taken."
vance of this or that rule of international law. They are Among the more common forms of reprisals are dis-
linrited by the experience of humanity and the rules of good play of force , as when the U.S. Mediterranean Fleet pro-
faith, applicable in the relation of state with state. They ceeded to and deployed along the coasts of Turkey in 1903
would be illegal if a previous act contrary to international pending compliance with the demand for the return of an
law had rwt furnished the reason for them. They aim to American national kidnaped by a Turkish bandit; occupa-
impose on the offending state reparation for the offense or tion of territory, as when Italy seized the Greek island of
the return to legality in avoidance of new offenses.',6 Corfu in 1923 for the murder of certain Italian officers in
1
In the Naulilaa Incident Arbitraiion, it appeared Greece; embargo, or the detention by the state seeking
that during World War I a party of German officials and redress of the vessels of the offending state or its nation-
officers crossed into the neutral Portuguese colony of An- als, whether such vessels are found in the territory of the
gola to discuss the purchase of food supplies from the Por- former or on the high seas, as illustrated by the action
tuguese. Due to a misunderstanding caused by language taken by Holland against Venezuela in 1908; and pacific
difficulties, a n altercation arose during the discussion as a blockade, by which the vessels of the offending state are
result of which three of the Germans were killed and an- prevented from entering or leaving its ports by the ships of
other one was interned by the Portuguese. The German the state seelcing redress, as wa.s donA hy the Great Pow-
authorities did not communicate with the Portuguese ers against Greece in 1886 tn djssu:ride it frf"lTP going to war
government but in alleged reprisal German troops later against Turkey.
attacked and destroyed certain forts and posts in Angola.
When the matter was subsequently submitted to arbitra- The United Nations
::!.
_ ___.,_
; l i . In the event that none of the above-discussed meth-
ods succeeds in settling the dispute, or even if they are not
6 Naulil·~ ~tr!l~ent Arbitration, Portuguese-German Arbitral
employed, the .United Nations may be asked or may decide
Tribunal, 1928. · ··
1
Ibid~fBish(!p, 747-748. on.its own authority to take a·hand in.its settlement. This
j 41
':}
~ ' '-1 . .\
~ . '} ,-(
.,..
r
SETTLEMENT OF l N'fl,;ltNJ\Tl0NAL DISPlITES ?.17
ltITER.NJ\'I'l'_,NAl. LAW
21B

task is addressed principally to the Security Council but that legal disputes should as a rule be referred to th~ In-
may, when the occasion requires, be taken over by the ternational Court of ,J ustice. 16
General Assembly under conditions to be noted shortly. If these measures also prove unavailing, then the Se-
The Security Council shall have jurisdiction to inter- curity Council may recommend such actual terms of set-
vene in: (a) all disputes affecting international peace and tlement as it may consider appropriate. 11 This last step is
security;!; and (b) all disputes which, although coming un- in the nature of a compulsory settlement of the dispute
der the "domestic jurisdiction clause,t' have been submit- which the parties are under obligation to abide by in the
9
ted to it by the parties for settlement. Such disputes may interest of international peace and security.
l)e brought to it by: Finally, where the terms of settlement are rejected by
0
(1) The Security Council itself, on its own motion. ' any of the parties, the Security Council is empowered to
11 take more drastic steps, to wit-
The General Assembly.
(2)
(3) The Secretary-General.
12 (1) In the first instance, it may adopt such measures
(4) Any Member of the United Nations.'~
not involving the use of armed force, such as complete or
partial interruption of economic relations and of rail, sea
(5) Any party to the dispute, provided that in the
air, postal, telegraphic, radio and other means of commu-
case of non Members of the United Nations, they should
nication, and severance of diplomatic relations. ts This is
accept in advance, for the purposes of the dispute, the
1 known as preventive action.
obligations of pacific settlement under the Charter. •
(2) Should it consider that such measures would be
The Charter of the United Nations provides that the
or have proved inadequate, it may then take such action
Security Council shall, in the first instance, when it deems
by air, sea or land forces as may be necessary to maintain
it necessary, call on the parties to settle the rtispute by any
15 or restore international peace and security. Such action
peaceful means in their own choice.
may indude demonstrations, blockades, and other opera-
In case they a.re unable to adjust their differences by
tions by air, sea, or land forces of members of the United
themselves through the peaceful methods suggested, the Nations.19 This is known as enforcement action.
Security Council may reconunend appropriate measures or
methods of adjustment, taking into consideration: (a) any To enable the United Nations to take urgent military
amicable measures already adopted by the parties; and (b) measures, members shall hold immediately available na-
________ __ ,,
tional air-force contingents for combined international
enforcement action. 'The strength and degree of readiness
5
Ibid., Arts. 24, M. of these contingents and plans for their combined action
1
Ibid.: Art. 2. shall be determined, within. the limits laid down in the
10
Ibid., Art. 39.

11
Ibid., Arts. 10, 11. 16
1 lbid., Art. 36.
!Ibi.d., Art. 99.
"[bid., Art. 36.
~ 1' Ibid., Art. 35. ·
,a Ibid., Art. 41.
• ~ ibid. Arts. 35, 37.
1
_j 19
Ibid.,~· 41.
.f:!i ,•..,.
, Hf Ibid., Art. 33.

::l;, t,~:;.:·~ ·"


.~ ;-
~ ... .
lN'J'EPNA'rTOtuJ, LAw ~i;,·rorr.RME~!T '.)f' INTEP.l\lA'TroNAt.. DISr UTES 2HI
218

special agreement or agreements r eforred to in Arbcle 34, appears to be threat to the peace, breach of peace, or act of
by the Security Council with the assistance of the Military aggression, the General Assembly shall cons ider the mat-
Staff Committee.20 ter immediately with a view to making recorrunendations
The Military Staff Committee consists of the chiefs of to the members for collective miasures, including in the
staff of the permanent members of the Security Council or case of breach of the peace or act of aggression, the use of
their representatives. It is supposed to advise and assist the armed forces when necessary, to maintain or restore in-
Security Council on all questions relating to its military ternational peace and security."
requirements for the maintenance of international peace If not in session at the time, the General Assembly
and security, the. employment and conunand of forces .may meet in emergency special session within twenty-four
placed at its disposal, the regulation of armaments, and hours of the request therefor either by any nine members
possible disarmament. It shall also be responsible under th e of the Security Council or by a majority of the members of
Security Council for the strategic direcb on of any armed the United Nations.
21
forces placed at the disposal of the said Council. Conformably to this resolution, the General Assembly
Some of the conflicts in which the Security Council on November 4, 1956, provided for the establishment of an
has intervened in the exercise of its peace-keeping func- int.ernational "police force" under the United Nations
tions are those involving Palestine a nd Israel in 1948, command to s upervise the area involved in the Suez Canal
India and Pakistan on the Kashmir case in the same year, crisis, in which two of the permanent members of t},p S\P.-
Indonesia and the Netherlands in 1948 and 1949, North curity Council were directly involved.
and South Kor ea in 1950, the Congolese Republic an d the In recommendfog snr.h action. the S':'<'.rP.t.siry-General
Katangans in 1960, Britain, France and Israel against had thA following to say:
Egypt on the Suez Canal in 1956, and the Middle East
Functioning as it would on the basis of the terms of the
war between the J ews and the Arabs.
resolution 'Uniting for Pea ce,' the Force, if establishe<l, wciuld
.,. There is always the possibility that failure of unity be limited in its operations to th e extent that consent of the
among the Big Five will render the Security Council impo- parties concerned is roquir ed under generally recognized in-
tent in the solution of international disputes. As previously ternational law. While the General Assembly is enabled to es-
tablish the Force with the consent of those parties which con-
observed , the veto cast by any of the permanent members
tribute units to the Force, it could not request the Force to be
will prevent agreement on this matter. Recognizing this, sta tioned or operate on the territory of a given cowitry without
the General Assembly adopted in 1950 the "Uniting for the con sen t of the Government of that country. This does not
Peace Resolution," which provides thet "if the Secwi.ty exclude the possibility tha t the Security Council could use i:uch
Council, beca use of lack of unanirnity of the permanent a Forr.e within the wider margin<; oro•:ided •inder Cha pter VII
1
of~J,e, TJnited Nal-intii:; C111u-1.:~r. ~
... i • members, fails to exercise its primary responsibility for the
;:. ; 1-I-.. ;. maintenance of peace and security in any case o/.here there The invasio~ c;,f Iraq by the combined forces of the
)!
; ., ...
}
}
...
United States, Britain and Australia provoked world-wide
>. ~·

i!f:;::·~ ·-.
~uli;;
l • '
~
... ,~ t _ _ __ _ -et~• ~

u
.1, t . .'t ~:· .. ~
0
I bid., Art. 45. . '
21
Ibid., Art. 47.
22
U.N. Doc.Ji~.AIJ4.·2, Nov. 6, 1956
:~-:\ . .~
~, •:til: .:
i '..
• .' :~ ttlf.;lJ.: ·. '. ;i..
~ ('
I 220 INTRRNATIONAL LAw

protests led by France, Russia and China, all members of


the Big Five. They contended that the attack was done
(;hApter 18

without authorization from the Security Council which WAR


wanted to give the UN ins pection team more time to look
for the weapons of mass destruction that US President
George W. Bush insisted the Iraqi government was con- THERE IS NO UNANIMITY among writers on interna-
cealing. Unable to get UN permission, the United States tional law as to the meaning or concept of war, some say-
nevertheless began bombarding Iraq, invoking an earlier ing it is a specific action while others assert it is merely a
inconclusive resolution of the Security Council adopted specific status. Viewed in the former sense, war may be
after the terrorist attacks in his country on September 11, defined as an armed contention between the public forces
2002. The consensus in legal quarters dismissed such of states or other belligerent communities, implying the
resolution and held that the United States needed another employment of violence among the parties as a means of
resolution categorically calling for armed sanction against enforcing their respective demands upon each other. In
Iraq. the latter sense, war may exist even without the use of
The Iraqi crisis has raised questions about the effec- force, as when one state fonnally refuses to be governed by
tiveness of the Security Council in maintai11ing interna- the laws of peace in its relations with another state even if
tional peace and security and the practical value of the actual hostilities have not taken place between them.
rule requiring t he unanimity of the Big Five in deciding It has already been observed that the employment of
non-procedural questions. The threatened veto by France force by one state against another does not necessarily
of the US proposal for the immediate invasion of Iraq result in war, e.g., in the case of reprisals like a pacific
caused the United States to "go it aJ')ne" and may have blockade. On the other hand, it should be remembered
demonstrated the :impotence of the United Nations in that when several Latin-American countries declared war
enforcing t}u~ purposes Elnrl principlef r1P.fined in its (;h::i.r against Germany during World War II, a state of war was
ter. deemed existing between the parties notwithstanding that
force was never resorted to in their mutual dealings.
Kelsen suggests that "like any fact to which interna-
tional law attaches certain consequences, the fact 'war'
mnst be ascert~ined by the competent authorities. As long
as no objective authority is established, it is for the statP.s
concerned to ascertain the existence of the fact 'war' in the
international sense. "1

I
Kelsen,. 25-27.

221
r
22?. l l\"I'ERNATIONAL LAW
\VAR
223
OutlRwry of War
war that are supposed to be observed in the conduct of
War was originally accepted as a legitimate means of armed hostilities . Among these are the following:
compulsion, provided, according to some writers, that it (1) The Declaration of Paris of 1856, conceming
was a reaction to an international delict, i.e., it was a just wa:tfare at sea.
war or bellum justum. Nevertheless, abhorrence of the (2) The Hague Convention s of 1899, concerning the
widespread suffering it has caused through the ages has use of expanding bullets and asphyxiating gases.
inspired many attempts to suppress it, notably in recent (3) The Hague Conventions of 1907, concerning the
times the Covenant .of the League of N ations, the Kellogg- opening of hostilities; the laws and customs of warfare on
Briand Pa c~ of 1928, otherwise known as the General land; conversion of merchant ships into warships; the
Treaty for the Renunciation of War, and the Cha rter of the laying of automatic submarine contact mines; naval bom-
United Nations. However, the first two agreements were bardment in times of war; the exercise of the right of cap-
not very effective because they expressly provided for cer- ture in naval warfare; the dischal'ge of projectiles from
tain exceptions when war could be lawfully waged. balloons; the adaptation to maritime watfare of the rules
By contrast, the Charter of the United Nations is of the Geneva Convention of 1864 relative to the treat-
categorically committed to t he outlawry of war. Its pream- ment of the wounded in land warfare; the rights and du-
ble begins with a declaration that the Organization is ties of neutrals in land warfare; and the rights and duties
"determined to save succeeding generations from the of neutrals in naval warfare.
scourge of war which twice in our lifetime has brought (4) The Geneva Convention of 1925, concerning the
untold sorrow to mankind." Toward this end, a ll members use of asphyxiating, poisonous and other gases and of
are called upon to abstain from the use of force in the solu- bacteriological methods of warfare.
. tion of international differences and to see to it that even
(5) The Geneva Convention of 1929, concerning the
non-members comply with its declared principles "so far as
treatment of the sick and wounded and of prisoners of war.
may be necessary for the maintenance of international
peace and security." In only two instances is the use of (6) The Declaration of London of 1936, concerning
force a llowed, to wit, in the exercise of the inhe1·ent right of the use of submarines against merchant vessels.
self-defense under conditions prescribed in Article 51 and (7) The Geneva Convention of 1949, concerning the
in pursuance of the so-called enforcement action that m~y amelioration of the sick and wounded on land; the amelio-
be decreed by thP: 8Acu"ri.tv Couri~H ,mdel'.' Art.icle 1~ ration of the sick and wounded and of shipwrecked mem-
bers of the armed forces at sea; the treatment of prisoners
Laws of War of war; ~.11.d the protection of civilian persons in war. 2
(8) 'J'hA Nncleiir Nonrroljfet:'ation Treaty,
Despite the formal .rejection of war, it is a fact of in-
ternational life that it has not yet been completely abol- How are these agreements enforced? The commonly
ished as a m eans 0£,solving disputes among nations. It is, accepted sanctions are: (a) protest lodged by on~ belliger-
ent, usually accompanied or followed by an ~appeal to
therefore, necessarY, to know the more important laws of
2
Kelsen, 65-66.
224 [NTF.llNATIOt.fAL LAW WAR 225

world opinion against the unlawful acts of warfare com- Third states are governed by the laws of neutrality in their
mitted by the other belligerent; (b) reparation for damages dealings with the belligerents.
caused by the defeated belligerent; and (c) punishment of (2) Diplomatic and consular relations between the
war criminals. Reprisals are often mentioned as a fourth belligerents are terminated and their respective represen
sanction, but it is doubtful if they can be justified at pres- tatives are allowed to return to their own countries.
it ~
ent in~smuch as they are ess~nti~lly unlawful acts taken (3) Treaties of a political nature, such as treaties of
by one belligerent. l'lg::linst the also illegal acts 0ft.b':.' 0Hu~r alliance, are automatically canceled, but those which are
precisely intended to operate during war, such as one
Commen~Pme nt of War regulating the conduct of hostilities between the parties,
The Hague Conven\ions of 1907 provide that hostili- are activated Multipartite treaties dealing with technical
ties "must not commence without a previous and explicit or administrative matters, like postal conventions, are
warning, in the form either of a r easoned declaration of deemed merely suspended as between the belligerents.
war or of an ultimatum with · conditional declaration.',;i ( 4) Individuals are impressed with enemy character:
War is supposed to commence on the date specified in the (a) under the nationality test, if they are nationals of the
\. declaration or on the date it is communicated to the en~ other belligerent, wherever they may be; (b) under the
emy. However, this formality is often not observed, as domiciliary test, if they are domiciled aliens in the terri-
evidenced by the number of wars tha t have broken out tory of the other belligerent, on the assumption that they
without the "previous and explicit warning" required, e.g., contribute to its economic resources; and (c) under the
the surprise attack on Pearl Harbor by the Japanese in activities test, if, being foreigners, they nevertheless par-
1941. In such cases, the rule is that war is supposed to ticipate in the hostilities in favor of the other belligerent.
commence from the moment of the first act of force com- Corporations and other juridical persons, on the other
mitted by one state with mtent of making war or commit~ hand, are regarded as enemies if a majority or a substan-
ted without such intent but considered by the other state tial portion of their capital stock is in the hands of enemy
as constituting war. Thus, war may start with a declara- nationals or if they have incorporated in the territory or
tion of war, with the rejection of an ultin).atum, or with the under the laws of the other belligerent.
commission of an act of force regarii.ed' by at least one of (5) Enemy pu.hlic property found in the territory of
the belligerents as an a.ct of war. the other belligerent at the outbreak of hostilities is, with
certain exceptions, subject to confiscation. Enemy private
Effects of the Out.break of \Var
property may be sequestered, subject to return, reim-
The outbreak of war produces the following genernl bursement or other disposition after the war in accordance
effects: with the treaty of peace.
(1) The laws of peace cease to regulate the relations
of the belligerents and are supersed,ed by the laws of war.

s Hague Convi~tion III, 1907, Art. 1.


J'i
"f,,,C
. ,.•-t_i
t .-
l NTERf-Jp·imNAT. LAW
Wi\H 227
?9.1,

When captured, combatants are entitled to treatment


Comh~t.:mts and Non-ct.:m,hat.ants
as prisoners of war, which includes inter alia the rights to
Technically, combatants are those who engage di- be accorded the proper respect commensurate with their
rectly in the hostilities while non-combatants are those rank, to adequate food and clothing, to safe and sanitary
who do not. Unfortunately, this distinction has been qua1-ters, to medical assistance," to refuse to give military
blurred by the methods of modern warfare, owing largely information or render military service against their own
to the increased destructive power of the new weapons, state, and to communicate with their families. Non-
like the intercontinental ballistic missiles, and the activi- combatants do not enjoy identical rights when captured
ties of many persons who, while not attached to the armed but are nevertheless protected from inhumane treatment
forces, perform seryices essential to the war eff01-t. In clear under the Geneva Convention of 1949 relative to the
cases, of course, and whenever p_ossible, non-combatants treatment of civilian persons in time of war.
should not be subjected to attack as they are not supposed
C:ondu~t of the Hostilities
._ to participate in the actual fighting. Only the combatants
may lawfully wage war and are thus subject to direct at- Three basic principles underlie the rules of warfare:
tack from the enemy. the principle of military necessity, the principle of human-
The following are regarded as combatants: ity, and the principle of chivalry.
(1) The members of the armed forces, whether per Under the first p1inciple, the belligerents may, sub-
taining to the army, the navy or the air force, except those ject to the other two principles, employ any amount and
not actively engaged in combat, such as chaplains and kind of force to compel the complete submission of the
medical personnel. enemy with the least possible loss of lives, time and
(2) The irregular forces, such as the francs tireurs or money. It was this principle that was invoked to justify the
the guerrillas, provided, that: (a) they are corrunanded by a atom bombing of Hiroshima and Nagasaki, the argument
person responsible for his subordinates; (b) they wear a being that more lives would have been lost if this drastic
fixed distinctive sign recognizable at a distance; (c) they measure had not been taken and an American invasion of
can-y arms openly; and (d) they conduct their operations in the Japanese mainland had been attempted. Such other
accordance with the laws and customs of war. measures as sieges, blockades, bombardments~ and devas-
(3) The inhabitants of unoccupied territory who, on tation of property, which may involve direct hardships on
approach of the enemy, spontaneously take arms to resist the non-combatants within the ar~a ~.ffected, are und?.r-
the invading troops wi.th0ut having bad time to orgari.ize taken under this principle.
themselves, provided only th.8.t they can-y :\rms openly and The second principle prohibit~ t.b':' USP. of any measu1·P.
observe the laws and customs of war. This is often i·eferred that is not absolutely necessary for the purposes of the
to as a levee en masse. war, such as the poisoning of wells and weapons, the em·
(4) The officers and crew of merchant vessels who ployment of dumdum 01· expanding bullets and asphyxi-
forcibly resist attack. ating gases, the desti1.1ction of works of art and property
devoted to r~ij&J.ciu.s or humanitarian purposes, the born-

~ ~t·~lkl1
~~ ?.?.R lNTERNA1'IONAL LAW W AH 229

barding of undefended places, and attack of hospital ships. punished without previous trial.',<; A spj· who succeeds in
When an enemy vessel is sunk, the other belligerent must rejoining his a1my and is later captured i.ncurs no respon-
see to the safety of the persons on board. Pillage is prohib- sibility for his previous acts of esoiona~e and is entitled to
ited. The wounded and the sick must be humanely treated hP. t.rP.::.t.P.rl Ft~ A pri~onP.r ofw::.T 1
without distinction of nationality by the belligerent in
Kinds of Warfare
whose power they are. The rule that a combatant who
surrenders may not be killed and the agreements relating
•..
to the treatment of prisoners of war also fall under this Warfare may be waged on land or sea or in the air,
separately or simultaneously. The traditional methods of
principle.
waging war have been modified considerably by the ad-
The principle of chivalry is the basis of such rules as
vent of modern developments in naval warfare and, par-
those that require the belligerents to give proper warning
ticularly, in aerial warfare, which played a major role in
before launching a bombardment or prohibit the use of
the last two World Wars.
perfidy in the conduct of the .hostilities. Ruses and strata-
gems of war are allowed provided they do not involve the Most of the rules on ae1;a1 warfare have become ob·
employment of treacherous methods, such as the illegal solete and need to be revised to make them confonn to

' use of Red Cross emblems to throw the enemy off-guard


prior to an attack. In this connection, false flags are not
present realities. For instance, the Hague Conventions of
1899 prohibited "for a term of five years, the launching of
projectiles and explosives from balloons or by other new
allowed in land warlare, but war vessels may sail under a
flag not their own, subject only to the requirement that methods of a similar nature.,,s
they haul it down and hoist their own flag before attacking AB for naval warfare, the most serious difficulties he
the other belligerent. Espionage also is prohibited under in the disagreement among states as to whether armed
iptemational law notwithstanding that the practice in- merchant vessels are subject to direct attack and the gen
volves deceit. eral violation of the rules against the laying of unanchored
An individual can only be considered a spy if: acting mines and the misuse of submarines and torpedoes. The
clandestinely or under false pretenses, he obtains, Ol' seeks rules on land warlare have remained substantially unal~
to obtain, information in the zone of operations of a bellig- tered and deal generally with the treatment of combatants
erent, with the intention of communicating it to the hostile on the battlefield and the obligations incumbent on the
party.4 Scouts, or soldiers in uniform who penetrate the troops making an attack, siege or bombardment. One im-
zone of operations of a hostile army to obtain information, portant rule is that booty, or personal property found in
are not spies and, when captured, should be treated as the battlefield, is su~iect to confiscation hy the belligerent
prii;:oners ofwar.6 Spi.es are subjed t:o the municipal law of stRt":' i:-x~':'pt f:'T~ly the personal belonJrings of the individual
the other belligerent except that, as provided in the Hague
Conventions of 1907, "a spy· taken in the act cannot be
6
Ibid., Art. 30.
• Hague Convention No.JV, 1907, Regulation, Art. 29. 1
Ibid., Art. 31.
b Ibid. ·l,'11· i - i 8
Wilson and Tucker, 288.
~~·.:":
230 Ir1I'F.lltl;\TlONJ\L Lr.w \.V,111
231

comhatimts ,vhich have no mili.ta:r.y value, such as j1:>l!l1- safety while respecting, unless absolutely prevented, the
eh-:i,1..... laws in force in the country. This is particularly true with
The theatre of war is the place where the hostilities regard to family honor and rights, the lives of persons,
are actually conducted, as distinguished from the region of private property, and religious convictions and practice.12
war, which is th e greater area where the belligerents may But whenever necessary, the belligerent occupant
lawfully engage each other. This would comprise their own may promulgate new laws, non-political as well as politi-
territories and the open seas, excluding only neutral terri- cal, provided they do not contravene the generally ac-
tories. cepted principles of international law. The political laws
are automatically abrogated upon the end of the occupa-
Belligere nt O~cupation
tion but the non-political laws may continue even beyond
One of the usual incidents of war is the occupation of the occupation unless they are expressly repealed or modi-
hostile territory by a belligerent that exercises a uthority fied by the legitimate government. 13
over it until its forces voluntarily withdraw or are expelled Thus, after the J apanese occupation of the Philip-
by the enemy. Territory is deemed occupied when it 1s pines, General Douglas Mac.Arthur issued a proclamation
actually placed under the authority of the hostile army, declaring null and void all laws, regulations and processes
but this occupation is limited only to the area where such of the enemy occupant.
authority has been established and can be effectively exer- In addition, the occupant is permitted to exact from
cised. Nevertheless, it is not necessary that every square the populace contributions over a nd above the regular
foot of the territory in question be actually occupied, as it taxes for the needs of the army of occupation or for the
doubtless suffices that the occupying army can, wi thin a administration of the territory. 14 lt may also, for valuable
reasonable time, send detachment of troops to make its consideration, make requisitions of things or services (ex-
10
authority felt within the occupied district. cluding military) for the needs of the occupying forces.15
Belligerent occupation does not result in transfer or No general penalty, pecuniary or otherwise, can be
suspension of the sovereignty of the legitimate govern inflicted on the population on account of the acts of indi-
ment although it may at the moment be unable to exercise viduals for which it cannot be regarded as collectively
it." Hence, the belligP-rent occupant cannot perform such respons1"ble.16
acts as declaring the in dependence of the occ1.1pied r.erri- It is pennitted for the belligerent occupant to intTO-
to:ry or requirin !{ it::- -inh~hi.t.ants to renounce t.heir al1~- duce military currency, provided the purpos8 ii; not to
giance to the lawful government. debase the country's economy. Thus, in Haw Pia v. China
In the administration of occupied territory, the belHg-
erent is r~q?ir?~ to restore and ensure public order and
,: .; ··f ~ i:·i }-
9 .. ,1
- , r:-t :U- !'.
#)'tc.
Geneva Conv~ntion, 1949, Arts. 16-17.
12

13
14
Hague Convention No. IV, 1907, Regulations, Arts. 43, 46.
Hilado v. De la Costa, G.R. No. L-150, April 30, 1949.
Hague Convention No. IV, 1907, Reg.;, A.t;ts. 49-51.
- ;w Hyde, Vol. 2, 364. 11
Ibid., Art. 52. I ~ .
· ltLa~u:elt'v. Misa, 44 O.G. 1176. " Ibid., Art. 50. .
... '• #:' t, •. .
' '
' .."t
. L "
7.~ ~. ~~ 11,l f :..
.- ..,.. .-..4 :,.-1 ... ·-
232 l Nll<~RNATlONAL 1,A \,\i WAR 233

Banking Corporation/ our Supreme Court upheld the municipal fisheries was deemed automatically canceled
validity of the payments made by the plaintiff in J apanese upon the re-establishment ,:,f t.he C<rrnmonwE>.alth govern
military notes to settle a loan extended to her in Philip- mP.nt..
pine currency before the outbreak of the Pacific war.
Postliminium
Private property cannot be confiscated, but those sus-
ceptible of military use may be seized, subject t.o restora- The right of postliminy, or postliminium, says Vattel,
18
tion or compensation when peace is made. The property "is that in which persons or thjngs taken by the enemy are
of municipalities and of institutions dedicated to religion, restored to the former state on coming actually into the
charity and education, and the arts and sciences, even power of the nation to which they belong."24 In its present
when state-ovvned, shall be treated as private property, broadened concept, the jus postliminium now also imports
19
and their des~ction is expressly forbidden. the reinstatement of the authority of the displaced gov-
On the other hand, the army of occupation can only ernment once control of the enemy is lost over the territory
\
take possession of cash, funds and realizable securities affected. Thus, upon the end of a belligerent occupation ,
which are strictly the property of the state, depots of arms, the laws of the re-established government are revived and
means of transport, stores and supplies, and generally all acts taken by the belligerent occupant which it could
movable property belonging t.o the state which may be not legally do under the law of nations, as well as lawful
20
used for military operations. All appliances, whether on acts of a political complexion, are invalidated.
·'.I
la nd, at sea, or in the air, adapted for the transmission of To illustrate, if private land belonging to X is confis-
news, or for the transport of persons or things, exclusive of cated by the enemy occupant and sold t.o Y, X can recover
cases governed by naval law, depots of anns and generally the property after the occupation without having to pay Y
all kinds of ammunition of war may be seized but must be the purchase price. The reason is that Y never acquired
21
restored and compensation fixed when peace is made. valid title from. the enemy occupant as the confiscation
Finally, the occupying state shall be regarded only as was illegal. On the other hand, taxes collected by the occu-
administrator a nd usufructua ry of public buildings, real pation government cannot again be demanded by the le-
estate, forests, agricultural estates belonging t.o the hostile gitimate fOVP,rnment upon its restoration, as it was within
state and situated in the occupied territory.22 This rule was the lawful competence of the enemy to impose and collect
applied by our Supreme Court in Banaag v. Singson taxes while its occupation of the territory was effective.
26

Encarnacion,23 where a lease for five yi;!ars grante<l by the By the same token, non-political acts performed during
Philippine Exec1.1r.ivl:' Commission j r1 H~42 over certain the occupation, like a decree of divor~ or a judgment for
recovery of a debt, remain valid even after the occupatioT1;
u 80 Phil. 604. but acts of a political character, ~·.1 r:h ~~ A mnvir.tion for a
18
Hague Convention No. IV, 1907, Reg., Arts. 53-56.
19
Ibid.
2()Ibid. ...
21
Ibid.
22
Ibid., Art. 55.
13
G.R. No. L-493, April 19, 1949.
284 fN'l'J,;ICNA(I0):,·..1. LAW WAR 9.~F.

crime against the occupying forces, autom?.hi::ally 10s~ A safeguard is a protection granted by a commanding
26
t.hP.ir v~lirlit.y •.1pon the end of the oc{'npation. officer either to enemy persons or property within his
command. When it is enforced by a detail of men, they
Non-Hostile Intercourse must use extreme measures, if necessary to fulfill their
trust, and are themselves exempt from attack or capture
Even in time of war, there are certain relations be-
by the enemy.
tween the belligerents which are not strictly hostile.
Among these are the following: A lu:ense to tra,de is a permission given by the compe-
tent authority to individuals to can-yon trade even though
Afiag of truce is a white flag carried by an individual
there is a state or war. A general license grants to all the
authorized by pne belligerent to enter into communica-
subjer,ts of th~ enemy stat,e or t() all its own snbjects the
tions with the other. The bearer, or parl.ementaire, is enti-
tled to inviolability as long as he does not take advantage right to trade in specified places or in specified articles. A
of his privileged positio11 to commit an act of treache:cy. special license grants to a certain person the 1ight to trade
However, the other belligerent is not obliged to receive a in the manner specified in his license.3i
27
flag of truce. Suspension of Hostilities
Cartels are agreements to regulate intercourse during
war on such matters as postal and telegraphic communi- A suspension of arms is a temporary cessation of the
cation, the reception of flags of truce, and the exchange of hostilities by agreement of the local commanders for such
prisoners. A cartel ship is a vessel sailing under a safe-- purposes as the gathering of the wounded and the burial
conduct for the purpose of carrying exchanged prisoners of of the dead. 32
war. 28 An armistice is the suspension of all hostilities within
A passport is a written permission given by the bel- a certain area (local) or in the entire region of the war
ligerent government or its authorized agent to the subjects (general) agreed upon by the belligerent governments,
of the enemy state to travel generally in belligerent teni- usually for the purpose of arranging the terms of the
tory. 29 peace. For example, a general armistice preceded the ter-
A safe-conduct is a pass given to an enemy subject or nunation of World War I with the surrender of Germany
to an enemy vessel allowing passage between defined and its allies.
points. This is given either by the belligerent government The distinctions between armistice and suspension of
or by the commander of the area within whi~h it. i~ P.ffi:>r.- arms fil"e as follows: (a) the purposf' of armistice is political
~-i11P SO
whilP. that of suspPnsion of ann.s is military; (h) the fonm~r
may be concluded only by the commanders-in-chief of the
26
Peralta vs. Director of Prisons, 75 Phil. 285. beyigerent governments while the latter may be agreed
21
Hague Convention No. IV, 1907, Regulation, Arts. 32, 34;
Fenwick, 578; Wilson and Tucker, 294.
28
Fenwick, 575; Wilson and Tucker, 295.
~ Wilson and Tucker, 295 . • ~
3) Ibid. .

t
,t~' 6)/ 237
hHEHtii\1'10!'1M Li\.W
236

changed hands during the hostilities, with the exception


upon by the local commanders; (c) the former is usually in
33 only of prize and booty.
writing while the latter may be oral.
A cease-fire is an unconditional stoppage of hostilities At times, the belligerents may be unable to effect a
decisive victory against each other and may decide finally
by order of an international body like the U.N. Security
to settle their disagreement in what is known as a negoti-
Council for the purpose of employing peaceful 34means of
ated treaty of peace. Such was the case with Great Britain
settling the differences between the belligerents.
and the United States when they terminated the Wru: of
A truce is sometimes used interchangeably with ar-
1812 with the conclusion of the Treaty of Ghent.
mistice but is now generally regarded as a cease-fire with
85 Finally, the war may be terminated by the defeat of
conditions attached. one of the belligerents, which surrenders either condition·
A capitulation is the surrender of military forces,
ally or unconditionally. In the former case, a treaty of
places or districts in accordfince with the rules of military
peace is concluded embodying the conditions specified in
36
honor. the surrender; in the latter, the vict01ious belligerent usu-
ally issues a unilateral declaration announcing the end of
Termination of War
the war, to be followed with a peace treaty dictated by it
War m~y be terminated by simple cessation of hostili- and specifying the rules on the settlement of the obliga-
ties, by the conclusion of a negotiated treaty of peace, or by tions of the vanquished state and the disposition of its
the defeat of one of the belligerents followed by a dictated territories. However, it is not possible always to conclude a
treaty of peace or annexation of the conquered country. peace treaty of this nature because the defeated belliger-
Among the wars that were terminated by simple ces- ent may cease to have any legal standing or existence, as
sation of hostilities are those between Sweden and Poland happened when the Southern Confederacy was simply
in 1716, between France and Spain in 1720, between absorbed by and again became a part of the United States
Spain and its American colonies in 1825, and between after the American civil war.
France and Mexico in 1862-67-.. Under this method, prop- War is supposed to end with the re-establishment of
erty or territory in the possession of the respective bellig- peace but the precise date is not easily fixed in view of the
erents upon the termination of the war is retained by them different methods of terminating the state of hostilities. In
in accordance v,rith the principle of uti possidetis. This is to the interest at least of the neutrals, it is certainly desir-
be ilistinguished from th~ u$ual stipul~tion for the .<:tatus able that a formal proclamation or treaty of peace indkate
quo ante, ,-.hie}, calls for the complete ref:.toration to their the ex::ict d9t;e of the tennin~.tion of the wru-. Ewm !;O, con·
former owners of property or territory that may have fusion may still arise from the municipal viewpoint, as·
illustrated by the apparently conflicting decisions ren-
- dered by our Supreme Court in connection with the inter-
j ..~: pretation of certain private contracts calling for the de-
33 Oppenheim-Lauterpaclit , 550. -~.. .mandability
~
of obligations after the. end of the war._:' l.:,,
. : !r.
3 • Salonga and Yap, 451,#p~.

ss Fenwick, 579. · ,. ~ ,
St • d r'<T '
Hague Convention N . .1 v, 1907, Reg., Art. 35 .
. ~ i:; ! -~
- 1":" •
£=~ ~

···"!
. .,f
*l~'i~·
i
238 Th'TERNATIONAL T,AW WAR 289

Thus, it has been held that the last war ended with liable for issuing such orders and the individu<'ls for
the signing of the treaty of surrender by the Japanese obeying them provided a moral choice was possible.
37
Armed Forces at Tokyo Bay on September 2, 1945, with Following are the Principles of the Nuremberg Char
the official proclamation of peace terminating the Greater t.P.r Ano ,Jm)gT11fmt.:
38
East Asia War on December 31, 1946, with the signing of
the San Francisco Peace Treaty on September 8, 1951;
39 I. Any person who commits an act which constitutes a crime
under international law is responsible therefor and liable
and with the ratification of the Treaty of Peace conduding fo1· punishment.
40
the Greater East Asia War on April 28, 1952. In these H. The fact that internal law does not impose a penalty for an
cases, it mu~t. bP. st.rP.ssed, determination of the date 0f the act which constitutes a crime under international law
end of the war was·'m ade in light of the intent of the par- does not relieve the person who committed the act from
ties as manifested in their contracts. responsibility under intemational law.
III. The fact that a person who committed an act which con-
Aftermath of War stitutes a crime under international law acted as Head of
State or responsible Government official does not relieve
One of the inevitable consequences of wai· is the im- him from responsibility under international law.
plied judgment, right or wrong, that the vanquished bel- I\'. The fact that a person acted pursuant to orders of his
ligerent is the guilty party in the dispute that caused the Government or of a superior does not relieve him from re-
sponsibility under international law, provided a moral
hostilities. The treaty of peace imposed by the victor upon choice was in fact possible to him.
the defeated state is regarded as a punishment and is V. Any person charged with a crime under international law
sustamed on that ground although marked by the vice of Las ~he right to a fair trial on the facts and law.
duress that normally would invalidate other agreements. \'I. The crimes hereinafter set out are punishable as crimes
The "sentence" thus rendered, with the active if reluctant under international law:
acquiescence of the vanquished state, will impute to it a. Crimes against peace;
responsibility for the war and compel. it to acknowledge (i) Pianning, preparation, initiation or waging of a
the obligation to pay reparations for injuri~s and. losses war of aggression or a war in violation of international
suffered by the victorious state. treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy
In addition, nationals of the vanquished state may be
for the accomplislunent of any of the acts mentioned un-
protected and punished as war criminals and for other der (i).
violations of international law. In these actions, they may b. War crimes;
not escape responsibility on the ground that they were ViolRtioPs of the law or customs of war which in-
merely acting on orders of their state. The state itself is clude, but are not limited to, mu1der, ill-treatment or d~·
portation to slave-labour or for any other purpose of ci-
vilian population of or in occupied territory, murder or
ill-treatment of prisoner_s of war, of persons on the seas,
·a7 Arellano v. Domingo, G.R. No. L-8679, July 26, 1957. killing of hostages, plunder of public or private property,
a~.~ avarro v. Barredo, G.R. No. 8660, May 21, 1956.
~3°' . . wanton destruction O'fzciJies~ towns or v:illages, or devas-
~ "' M ercado v. Punzalan, G.R. No. L-8366, April 27, 1956.


1-
tation not justified by.~ r y necessity.
-~.~,is.rev. Imperial, G.R. No. L-7906, Oct. 22, 1957. • Jt •

, •
240 li'iTERNATIONAl. LAW
WAH
241

c. Crimes agamst humanity;


failure to take such measures when violations result. That this
Murder, extermination, enslavement, deportation was the precise issue to be tried was made clear by the state-
and other inhuman acts done against any civilian popu- ment of the pros()cutic,n at the opening of the trial.
lation, or persecution on political, racial or religious
It is evident that the conduct of military operations by
grounds, when such acts are done or in connection vvith
troops whose excess~s are unrestrained by the orders or efforts
any crime against peace or any war crime.
of their commander would almost certainly result in violations
VIL Complicity in the commission of a crime against peace, a which it i.s the purpose of the law of war to prevent. Its purpose
war crime, or a crime against humanity as set forth in to protect civilian population and prisoners of war from bru-
Principle VI is a crime under international law. tality would largely be defeated if the commander of an invad-
ing army could with impunity neglect to take reasonable
In Yamashita v. Styert the Commanding General of measures for their protection. Hence, the law of wa1· presup-
the Imperial Japanese Forces in the Philippines was con- poses that its violation is to be avoided through. tli.e control of
victed of war atrocities by a military commission and sen- the operations of war by commanders who :::irn t.o !';OmP. P.irt,;,111.
r':'ep-:m~ibl-? for their subordinates.
tenced to death by hanging. He questioned his trial and
COP.viction on the ground that the military co:rnmii:i.sion had
no r uthority tJr jurisdicfrm to try him, but. thP. sentence
was affirmed by the Philippine Supreme Court and later
by the U.S. Supreme Court. The latter court declared inter
alia as follows:
It is not denied that such acts directed against the civil-
ian population of an occupied country and against prisoners of
war are 1·ecognized in international law as violations of the law
of war. Articles 4, 28, 46, and 74, Annex to Fourth Hague Con-
vention, 1907, 36 Stat. 2277, 2296, 2306, 2307. But it is urged
that the charge does not allege that petitioner has either com-
mitted or directed the commission of such acts, and conse-
quently that no violation is charged as against him. But this
overlooks the fact that the gist of the charge is an unlawful
b1·each of duty by petitioner as an army commander to control
the operations of the members of his command by 'permitting
them to commit' the extensive and wid~spread atrcdties speci-
fied. The question then is whetl1er the law flf w~r ;J:TII"'!:'':'e •:m
any army commander a duty to take such appropriate meas-
ures as are within his power to control the troops under his
command for the prevention of the specified acts which are
violations of tlie law of war and which are likely to attend the
occupation of hostile territory by an uncontrolled soldiery, and
whether he may be charged with personal responsibility for his

., 75 Phi}. 563.

~
NEl."J'IH,1. f'I'Y
21a

Chanter 19 wAr, this so-calJP.rl police ad;ion ha." drasti~Rlly r<c>vised. the
traditional understanding of neutrality.
NEUTRALITY
Ne utrality and Neutralization
A STATE is said to be neutral if it does not take part, di- Neutrality must be distinguished from neutraliza-
rectly or indirectly, in a war between other states. If rec- tion. While the former is dependent solely on the attitude
ognized by the belligerents, this condition gives rise to of the neutral state, which is free to join any of the bellig-
rights a nd obligations between them and the neutral state erents any time it sees fit, the latter is the result of a
in their mutual relations . treaty wherein the duration and the other conditions of
The meaning of neutrality, which is a relatively new the neutralization are agreed upon by the neutralized
development in international law, has undergone radical state and other powers. This agreement governs the con-
transformation during the recent past, particularly the duct of the signatories whereas neutrality is governed by
last two World Wars. For instance, such concepts as im- the general law of nations. Neutrality, moreover, obtains
perfect neutrality and qualified neutrality, which were only during war while neutralization is intended to oper-
accepted before, have now become obsolete. The general ate in time of peace as well as in time of war. Finally, only
policy at present is to recognize only perfect or absolute states may become neutral but portions of states, like
neutrality, which imports that the third state does not islands, rivers and canals, may be neutralized.
take sides in any way whatsoever when other states are at
war. L::n.v!.: of Ntmtrality
Strict adherence to this view has becom e hardly prac- The mo1·e important rules on neutrality a re found in
ticable, however, if not impossible. Regrettably, the tech- the customary law of nations and in such conventions as
niques of modern warfare and advances in internation al the Df'claration of Paris of 1856, the Hague Conventions of
commerce h ave inextricably involved third states in the
1907, and tbe unrat.ified Declaration 0f London of 1909.
hostilities, often against their will. Moreover, the compul-
'l'hese rufoe define: taJ the relations of the belligerent
sions of present-day international politics make it difficult
states with the neutral state; and (b) the relations of the
for n ations to mfilntain a strictly impartiat attitude in the
belligerent states with the nationals of the neutral state.
face of i::onflids t.hat, a !though they m~.v not be actually
parties thereto, will unavoidably affect their own future Relat~ons of Belligerent States and Neutral States
and security. No less significant are the provisions of the
·U.N. Charter which obligate member-states to participate Generally speaking, a neutral state has the right and
in enforcement action in cases of threat to or actual breach duty to abstain from taking part in the hostilities and from
of the peace of the world. While technically not regarded as giving assistance to_either belligerent; to prevent its terri-
~~
tory and other resources from being used in the conduct of
242 hostilities by the bE'µligerents, and to acquiesce in certain
II
., f 244
ItITEP,.NA'l'!()NAI. T·"'w
N EC!'!'P.AI..''f'\I 245

sage of sick and wounded troops is allowed through a neu-


restrictions and limitations that the belligerents may find
tral state provided personnel and materials of war are not
necessary to impose, especially in connection with interna- 8
1 also carried Persons bound for enlistment in the belliger-
tional commerce. ent armies may cross the neutral frontiers if they do so
The belligerents, on the other hand, are bound to re-
individually or separate ly and not as a body. 9 The neutral
spect the status of the neutral state, avoiding any act that
state itself may give refuge to troops from the belligerent
wm directly or indirectly involve it in their conflict, and to forces but must intern them as far as possible, at a dis-
submit to any lawful measures it may take to maintain or
tance from the theater of war.10 Escaped prisoners of war
protect its neutrality. need not be detained by the neutral state but must be
These rights and duti~s a pply only between the bel- assigned a place of residence if they are allowed to re-
ligerents and the neutral state and, as will appear later, main.11
do not extend to th e acts and omissions of the nationals of
The neutrality of a state is not affected by the mere
the neutral state. passage through its territorial waters of warships or prizes
12
belonging to belligerents. However, they may not enter
Use of Neutral Territories
neutral ports, harbors and roadsteads except only in cases
War activities by or on behalf of any of the belliger- of unseaworthiness, lack of fuel or provisions, or stress of
ents may not be undertaken in the territory of the neutral weather. 13 The usual duration of the sojourn is 24 hours
state without infringement of its neutrality. Neutral terri- but this may be shortened or extended, depending on the
tory is inviolable2 and cannot be used by the belligerents reason for the entry. 14 Thus, the vessel must leave as soon
for the movement of their troops,3 the transport of war as it has been re-provisioned; a nd in this connection, it
supplies/ the erection of wireless stations for exclusively must be stressed that it can take only so much fuel or
military purposes,5 the recruiting of soldiers,6 and the un- supplies as it will need until it reaches the nearest of its
dertaking of military operations in general._ All of these own ports. 15 Improvement of the weather is also a cue for
acts shC'uld be resisted by thP. neutral $tate, with anned departure, and so too is the completion of the repairs that
force if necessary, and such resistance is not to be re- made the entry necessary. "While some states do not a1low
garded as a hostile act. 7 reparrs in their territory of damage sustainetl by a war-
Nevertheless, use of neutral territory is not com- ship in battle, the rnlP gP.J1e.ra lly observed is that the re-
pletely barred to the belligerents. For example, the pas-
'
_._, _________
• : 8
Ibid., Art. 12.
1
Schwarzenberger, 208.
: .. ~ Ibid., Art. 6.
. ~- ; _.1° Ibid., Art. 11.
2 Hague Convention V, 1907, Reg., Art. 1.
3 £'Ibid., Art. 13.
Ibid., Art. 2. ~'Hague Convention XIII, 1907, Art. 10.
• Ibid.
5
Ibid., Art. 3. .. ,.
• ,
.
1
'Hague Convention Xlll, 1907.
Ibid., Art. 12.
f
t
~ Ibid., Art. 4.
1
Ibid., Art. 10. .,. .
ilOIJoid,, Art. 19.
,
l...;!
246 h-rrRRhlAT!OHAL LAW NElTI'RALITY 217

pairs should be permitted so long as they are not intended the cases mentioned, so too is it prohibited from giving
to increase the fighting force of the vessel.·~ them any form of direct assistance in connection with the
Where vessels from both belligerents are in neutral conduct of the hostilitie&. Thus, the neutral state may not
waters at the same time, a period of 24 hours must elapse send military contingents, extend loans, or even sell, fol'
between the departure of the first vessel and the depar valuable consideration, supplies of war to either or both of
ture of the second, the order being determined by their the belligerents.iz
time of arrival. 11 Not more than three vessels from any While the neutral state is not obliged to prevent the
belligerent shall be allowed simultaneously in the same export from or transit through its ten-itory of war supplies
'
neutral port or waters.
18
purchased from private traders by the belligerents in the
The· territorial waters of a neutral state must never ordinary course of commerce,23 it is required to take rea-
be used as asylum for belligerent vessels under pursuit or sonable diligence in preventing the delivery of vessels
attack by the enemy. Any man-of-war entering a neutral constructed and armed in its territOl'y for use by any of the
port for this reason should be asked to leave and, if it re- belligerents.24 In the famous Alabama Claims Case, for
fuses, should be rendered incapable of puttmg out to sea example, Great Britain was held liable in damages to the
25
for the duration of the war, its officers and crew being United States for violation of this duty.
19
interned by the neutral state. If a prize is captured in Of particular interest is the action taken by the
neutral waters, or brought thereto without justification, it United States in favor of the Allied Powers prior to its
is the duty of the neuti·al state to release it and to intern actual entry in 1941 into World War II. In 1940, it trans-
20
the prize crew of the captor ship. . ferred fifty "out-of-date" destroyers to Great Britain in
Passage of military aircraft belonging to the belliger- exchange for the use of certain naval bases in B11tish ter
ents is not allowed across the airspace of a neutral state. ritory and, the following year, was able to extend more
Where a belligerent aircraft is forced to lane! on nentral material aid to the same country by virtue of the "Lend ·
territory, the same should be det!'linecl. and its officers a11r:l Lease Act," which authorized the President to lend, lease
r.rnw intR.rned.
21 or otherwise make available American war supplies to any
belligerent when in his opinion such measure was neces-
Use of Neutral Facilities and Services sary to the security of the United States. Those acts were a
violation of the traditional laws of nf'utrr1lity. Nonetheless,
Even as the neutral territory is not allowed to make they were sought to be. justified on the ground that they
its territory available for the use of the belligerents save in wer(, ,,:tal t;0 the fotur':' defl:'11·':-':' of ~.hP. rlr,it.P.cl ~t.::it.f\~ in

16
Ibid., Art. 17.
11
Ibid., Art.. 16.
18
Ibid., Art. Jl5. 2'ZWilson and Tucker, 328.
19
Ibid., ALt. .24~ 13
Hague Convention XIII, 1907, Art. 7.
20 2
Ibid., ~- ~ ; • Ibid., Art. 8.
21 26
Schwarzl.dbih;gert 215. 7 Moore, Sec. 1330.
t . ~-- ...
. I. t
.1 ,,.~,.i
,.ti-
°' t
·~,;:;.~ '
ll\\' I
;I
I LAW
248 IN'I'ER~14'1•[()11.1AI. N EUTRALITY 249
" ~\ 11

view of the expected adverse reoercussions upon it of a Prize is not confiscated summarily but must be
possible A~is victory. brought to a prize court for adjudication. A prize court is a
tribunal established by a belligerent under its own laws, in
Relat ions of Belligerent States with Nationals of its territory or the territory of its allies, and applies n.tles
Neutral States of international law in the absence of special municipal
legislation. Title to the prize vests in the captor upon con-
It is common practice for neutral states to enact leg-
firmation by the prize court of the validity of the capture,
islation designed to avoid their involvement in foreign
except when the vessels or goods are public enemy prop-
wars as a result oftbe acts of their nationals.
erty, in which case title vests immediately upon capture.
This is not a duty imposed by international law, how
ever, for neutral states' are free to a1low their nationals to
In the Declaration of Paris of 1856, the following
deal, in their privat.e capacity, with any of the bellige1·ents. rules on the treatment of sea-borne goods in time of war
were agreed upon:
If, for instance, these n ationals enlist in a belligerent army
or engage in commerce with any of the belligerents, the (1) Enemy goods w1der a neutral flag are not sub-
neutrality of their state is not thereby compromised in the ject to capture, except contraband of war.
absence of special rules imposing upon the neutral state (2) Neutral goods under an enemy flag are not sub-
the duty of intervening in the transaction. Except for ject to capture, except contraband of war.
these, international law considers the relationship as
strictly between the individual and the belligerent states Contraban.<1
and whatever hardships may be suffered by its nationals
Contraband is the term applied to goods which, al-
as a result thereof must, as a rule, be acquiesced in by the
though neutral property, may be seized by a belligerent
neutral state.
because they are useful for war and are bound for a hostile
Visit and Search destination. Absolute contraband are necessarily useful for
26
war 'under all circumstances, like rifles and ammunition,
Belligerent warships and airc1·aft have the right to whereas conditional contraband, like food and clothes,
visit and search neutral merchant vessels on the high seas have both civilian and military purposes.m A t.h ird cate-
for t.h e purpose of determining whether they are in any gory is usually added under what is known as a ''free lis~,"
way connected with the hostilities, e.g., performing unneu- which includes goods useful for war and bound for the
t.ral service, carrying cont.rabal'ld, or attempting to breach belligerents but exempted from the law on contraband for
a blockade. These vessels may be captured as prize if they humanitarian reasons. Among these are medicines and
28
are engaged in hostile activities, if they resist visit and medical supplies for the use of the sick and the wounded.
search, or if there is reasonable suspicion that they are
liable to confiscation. The cargo of these vessels may also
be captured under certain conditions, as when they are. 26

21
Declaration of London, Arls:. 22, 24.
contraband. Ibid. •

.. u Ibid., Art. .29.

•'
250 lNfER.NAT[ONAL LAW NF.HH1AI.TTY 2!'>1

Absolute contraband are subject to seizure so long as carrying the contraband, some states consider it confisca-
29
they are bound for enemy or enemy-held territory, but ble if the contraband are more than one-half of the total
conditional contraband may be seized only when it can be cargo by weight, value, freight or vo1ume. 34
shown that they are destined for the armed forces or the Contraband are liable to capture from the time they
30
authorities of the belligerent government. But this dis- leave the port in which they are loaded and until they
tinction has lost much of its practical value, because most reach their final hostile destination. In vjew of this, mer-
wartime importations are now government-controlled due chant vessels have resorted to the pretense of stopping at
to currency restricpons. Moreover, under the doctrine of an intermediate neutral port, where the goods are un-
ultimate consumption, goods intended for civilian use loaded so as to give the appearance that they were actu-
which may ultimately find their way to and be consumed ally destined for this port, although they are subsequently
by the belligerent forces are also liable t.o seizure on the loaded again, either on the same vessel or on another ve-
way. hicle, for final shipment to their real belligerent destina-
It is noteworthy that the classification between con- tion. The vessel is thus able to acquire immunity during
traband and free goods is continuously changing, largely its voyage from the port of origin to the intermediate neu-
as a result of advances in mode1n science which has de- tral port and becomes liable to capture only from the time
vised new military uses for articles which were before of its departure from the latter port and until its arrival at
regarded as innocuous or innocent. On this development, the belligerent port.
Schwarzenberger remarks: To counteract this subterfuge, belligerents have ap-
.. . with the possible exception of ostrich feathers, prac- plied the doctrine of ultimate destination, under which the
tically everything is , useful for purposes of war and is, there- liability of contraband to capture is determined not by
fore, conditional contraband. Raw cotton, treated in the Decla- their ostensible but by their real destination. Even if the
ration of London as non-contraband and subsequently one of vessel intends to st.op at an intermediate neutral port, it
the most important ingredients in .the manufacture of explo-
sives, illustrates this proposition. Even plumstones, left nver
will still be considered as in one continuous voyage pro-
i:if:ter rnc> "!r.ing jR.m, s~ ui-ed in th<> rpak:ing of j1;>t e-ngi11el'l.~· vided it can be shown that its cargo will ultimately be
dehvered to a hostile destir•a.tion. Thu~. in the case of the
32
Contraband are subject to condemnation. If they are Springbok, where the cargo of a British vessel en route to a
shipped together with innocent goods belonging to the neutral port was held liable to condemnation on the
same owner, the latter may also be confiscated under the ground that its real destination was a blockaded port, the
doctrine of infection.33 As for the disposition of the vessel court said:
We cannot doubt that the cargo was originally shipped
29
lbid., Art. 30. with intent to violate the blockade; that the owners of the
30
Declaration of London, Art. 33. cargo inte!).ded that it should be tra nshipped at Na ssau to a
31
P. 221. smaller v~ssel more likely to succeed in reaching safely a
32
Hague Convention XIII, 1907, Art. 3!:l,
lJ Declaration of London, Art. 42.
INTERNATIONAL LAW NEtmlAl.. tTY ?.fi:~
252

blockaded port than the Springbok: that t he voyage from Lon- The liability of a neutral vessel to capture for breach
don to the blockaded port was, as to cargo, both in law a nd in of blockade is contingent on its knowledge, actual or pre-
the intent of the parties, one voyage; and that th.fl liability to sumptive, of the blockade39 and continues as long as it is
condemnation, if captured during any part ,:,f H,A voya1te, at-
tached t o tho ""~rgo from th<> t.i me of sailing ."
pursued by the ships of the blockading force after it has
left or tried to enter the blockaded port. If the pursuit is
This doctrine is called the doctrine of continuous voy- abandoned or the blockade is lifted, capture of the ship can
age when the goods are reloaded at the intermediate port no longer be effected. 40
on the same vessel and. the doctrine of continuous trans- A vessel foun d gui lty of breach of blockade is liable to
port when they .are reloaded on another vessel or other condemnation, and so is the cargo unless it is proved that
form of transportation. at the time it was shipped the owner neither knew nor
could have known of the intention to violate the blockade.41
Blockade Practice durin g the last two World Wars radically re-
Blockade is a hostile operation by means of which the vised the operational concept of blockade and has reduced
vessels and aircraft of one belligerent prevent all other the traditional rules to relatively minor importance today.
vessels, including those of neutral states, from entering or Instead of confining themselves to the ports and coasts of
leaving the ports or coasts of the other belligerent, the the enemy, the belligerents established the so-called "long
1t::
purpose being to shut off the place from international distance blockades" over t heir respective "war zones" and
commerce and communication with other states. It differs "defense areas" which they heavily laid with mines and
from a pacific blockade, in that the latter applies only to within which neutral shipping was made subject to their
the vessels of the blockaded state and does not affect the permission. Great Britain, for example, developed the
vessels of other states. system of "navicerts," by means of which neutral shippers
, might :cl.void . the delars incident. to visit and search in
\} To be valid, a blockade must be: (a) binding, i.e., duly
communicated to the neutral states; (b) effective, meaning British control ports by applying for a clearance regardin~
that it is maintained by adequate force so as t o m ake in- th'3 chal'.'::i.rJ.p,r of their ">liiptn.Bnts and thP.ir de!'5tination.42
36
gress to or egress from the port dangerous; (c) established Unneutral Servic':'
by the proper authorities of the belligerent government,
generaJly the head of state; 37 (d) limited only to the terri- Unneutral service consists of acts, of a more hostile
tory of the enemy and not extended to neutral place~ or character than carriage of contraband or breach of block
internationa l rivers; a nd (e) impartially applied to all ade, which are undertaken by merchant vessels of a neu-
states alike.38 · tral state in aid of a ny of the belligerents. According to the

35
5 Wall, 1 (1867). - a~ Ibid, Art. 20.
:so Higgins, The Hague Pea ce.Confere,nce, p. 1. <QIbid., Art. 21.
41
s, Declaration of London, Arts.1. '2, 5'; 8 . ·
~" Ibid., Art. 14. . ,. l.~: Ibid.
~enwick, 641.
; t_t i.. ;j:,,,.
• f .f ...: 1·
r
I

251 Ti,'TERN!\Tl0!141 . L AW
N r:1 n·RAL1TY
2155

Declaration of London, and as generally accepted, a neu-


diction of the belligerent; (b) that there is urgent necessity
tral vessel is liable to condemnation for unneutral service:
for the taking; and (c) that just compensation is paid to the
(a) if it is making a voyage special with a view to the owner.
transport of individual passengers who are embodied in
the armed forces of the enemy or with a view to the While some autho?ities are of the opinion that the
transmission of information in the interest of the enemy; same purpose can be achieved through the exercise of the
or (b) if with the knowledge of the owner, or the one who right of eminent domain, it is claimed on the other hand
charters the entire vessel, or of the master, it is trans- that expropriation cannot be exercised over property that
porting a rniHtary detachment of the enemy or one or more is only temporarily, and usually over the owner's objection,
persons who, during the voyage, lend direct assistance to under the control of the belligerent.'6 Moreover, the expro-
the operations of the enemy. The cargo, if belongin g to the priated property is never taken for t.b':' pnrpn.c::P. of de
43 stroying it.
owner of the vessels, is likewise confiscable.
A neutral vessel is also liable to condemnation and to 'fennination of Neutrality
be treated as a merchant vessel of the enemy: (a) ifit takes
a direct part in the hostilities; (b) if it is under the orders Neutrality is terminated: (a) when the neutral stat.e
or control of an agent placed on board by the enemy gov- itselfjoins the war; or (b) upon the conclusion of peace. In
ernment; (c) if it is chartered entirely by the enemy gov- the first case~ the hitherto neutral state will be governed
ernment; or (d) if it is at the time a nd exclusively either by the laws of war in its relations with the other belliger-
devoted to the transport of enemy troops or the transmis- ents and by the laws of neutrality in its relations with all
sion of information in the interest of the enemy. The goods other states; and in the second, all states will RgRin he
belonging to the owner of the vessel are likewise liable to governed by the laws 0f pf:':;:irP.
44
i:ondemnation.

Angary
I
I
II
111:
By the right of angary, a belligerent may, upon pay-
ment of just compensation, seize, use or destroy, in case of
urgen t necessity for purposes of offenses or defense, neu-
tral property found fa its territory, in enemy territory, or
on the high seas.45 As wi.11 be noted, the exercise of the
right js conditioned upon three requisit~, to wit: (a) that
the property is in the territory under the control or juris-

48
Declaration of London, Art. 45.
-« [bid., Art. 46.
' ';Oppenheim-Lnuterpacht, Vol. 2, 28.
•• Schwarz..enberger, 216.