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GENERAL PRINCIPLES
International Law defined.
Traditional: That branch of public law which regulates the relations of States
and of other entities which have been granted international personality. [This
definition focuses on subjects, which are entities which possess international
personality and with rights and obligations recognized under international law, as
against objects, which are persons or things in respect of which rights are held and
obligations assumed by the subjects of international law.]
Modem: The law that deals with the conduct of States and international
organizations, their relations with each other and, in certain circumstances, their
relations with persons, natural or juridical [American Third Restatement],
International Law as true law. Although it may not comply with John Austin’s
concept of law, i.e., enforced by sovereign political authority, nonetheless it is still
true law.
Incorporation v. Transformation.
freedom, cooperation and amity with all nations”. See: Kuroda vs. Jalandoni, 83
Phil. 171 (although the Philippines was not a signatory to the Hague and Geneva
Conventions, international jurisprudence is automatically incorporated in
Philippine law, thus making war crimes punishable in the Philippines); Lo Ching
vs. Archbishop of Manila, 81 Phil 601; Borovsky vs. Commissioner of
Immigration, G.R. No. L-4362 (1951) (where prolonged detention of a stateless
alien pending deportation was deemed illegal, citing the Universal Declaration of
Human Rights which is incorporated in Philippine law).
As Primary Sources:
International Treaties and Conventions, whether general or
particular, establishing rules expressly recognized by the contesting states.
[Note: To these may be added the principle of ex aequo et bono (what is good
and just), provided that the parties to the dispute agree thereto, as provided in
Art. 38 (1), Statute of the International Court of Justice.]
As Secondary Sources:
Judicial Decisions, generally of international tribunals, the most
authoritative being the International Court of Justice. They are not really sources,
but “subsidiary means” for finding what the law is, and whether a norm has been
accepted as a rule of international law. The decision of a national
court may be used depending upon the prestige and perceived impartiality of the
domestic court, not being in conflict with the decisions of international tribunals,
and its admissibility in the forum where it is cited.
States.
Elements:
Civilization.
Theories on Recognition:
through a political upheaval, a state may not issue a declaration giving recognition to
such government, but merely accept whatever government is in effective control
without raising the issue of recognition. Dealing or not dealing with the government is
not a judgment on the legitimacy of the said government. [Note: Recall the
recognition of the People’s Republic of China, based on the one China policyj
shifted to the rebel government; the legitimate government recognizing the rebels
shall observe the laws of war in conducting hostilities; third states recognizing the
belligerency shall maintain neutrality; and recognition is only provisional (for the
duration of the armed struggle) and only for the purpose of the hostilities.
Classes of States.
iia) Real Union: two or more states are merged under a unified
authority so that they form a single international person through which they act
as one entity. The states retain their separate identities, but their respective
international personalities are extinguished and blended in the new international
person. E.g., the former United Arab Republic, with Egypt and Syria.
The Holy See has all the constituent elements of statehood (people: less
than 1000 individuals; territory: 108.7 acres; government with the Pope as head;
and independence by virtue of the Lateran Treaty of February 11, 1929, which
constituted the Vatican as a territory under the sovereignty of the Holy See). It
has all the rights of a state, including diplomatic intercourse, immunity from
foreign jurisdiction, etc..
See Holy See vs. del Rosario, 238 SCRA 524, where the Supreme
Court distinguished Vatican City from the Holy See. The Holy See is an
international person with which the Philippines had diplomatic ties since 1957.
Membership.
Organs.
and the nature or extent of the reparation to be made for the breach of an .
international obligation. Advisory opinions may be given upon request of the
General Assembly, or the Security Council, or the other organs of the UN
when authorized by the General Assembly.
Rights provision on “the inherent dignity and the equal and inalienable rights of all
members of the human family”; [c] Some treaties, e.g., the Treaty of Versailles,
which confer on individuals the right to bring suit against States before national or
international tribunals; [d] The need for States to maintain an international
standard of justice in the treatment of aliens; [e] The Genocide Convention, which
condemns the mass extermination of national, ethnic, racial or religious groups; [f]
The 1930 Hague Convention with its rules to prevent the anomalous condition of
statelessness, and the 1954 Covenant Relating to the Status of Stateless
Persons, which grants stateless individuals certain basic rights; and [g] The 1950
European Convention on Human Rights and Fundamental Freedoms, which
grants private associations and individuals the right to file complaints before the
European Court on Human Rights.
By far the most basic and important right. Art. 51 of the UN Charter
recognizes the right of the state to individual and collective self-defense (through
regional arrangements) if an armed attack occurs against such state, until the
Security Council has taken measures necessary to maintain international peace
and security. However, the right may be resorted to only upon a clear showing of
grave and actual danger, and must be limited by necessity. It is eventually the
Security Council which determines whether or not an “armed attack” has taken
place.
Nicaragua for sending troops to Nicaragua to aid the contras, inasmuch as there
was no armed attack against the latter. Note that protest or demand for
rectification or reparation does not comprise intervention. Thus, the act of
President Clinton in discouraging Americans from investing in Burma was not
considered as intervention.
A state should not inquire into the legal validity of the public acts of
another state done within the territory of the latter. For this purpose, considerations
such as motive are immaterial. Thus, in Underhill vs. Hernandez, the US court refused
to inquire into the acts of Hernandez (a Venezuelan Military Commander whose
government was.later recognized by the US) in a damage suit brought in the US by an
American who claimed that he had been unlawfully assaulted, coerced and detained
by Hernandez in Venezuela. However, in the Sabbatino case the U.S. court said that
no court in the US should decline because the act of state doctrine seems to make a
determination on the validity of the confiscation of property by a foreign state a
violation of the principle of international law.
Territory.
Defined: The fixed portion on the surface of the earth on which the State
settles and over which it has supreme authority. The components of the territory of
the State are the terrestrial, fluvial, maritime and aerial domains.
Organic acts and issuances affecting the National Territory , (i) Treaty
of Paris of December 10,1898 [cession of the Philippine islands by Spain to the
United States; (ii) Treaty between Spain and the U.S., at Washington, on
November 7, 1900 [Cagayan, Sulu and Sibuto]; (iii) Treaty between the U.S. and
Great Britain, January 2, 1930 [Turtle Islands and Mangsee Islands];
1935 Constitution [Batanes]; (v) 1973 Constitution [territory belonging to the
Philippines by historic right or legal title]; and (vi) PD 1596, June 11, 1978
[Philippines officially laid claim to the Kalayaan Islands by virtue of occupation and
exercise of jurisdiction],
Modes of acquisition.
Accretion. The increase in the land area of the State, either through
natural means, or artificially, through human labor. Read on the Sector Principle,
applied in the Polar regions of the Arctic and Antarctica.
Internal (National) Waters. Bodies of water within the land mass, such as
rivers, lakes, canals, gulfs, bays and straits. The UN Convention on the Law of
Sea defines internal waters as all waters on the landward side of the baselines of
the territorial sea.
Territorial Sea. The belt of the sea located between the coast and internal
waters of the coastal state on the one hand, and the high seas on the other,
extending up to 12 nautical miles from the low-water mark, or in the case of
archipelagic states, from the baselines.
The general rule is that ships (not aircraft) of all states enjoy the right
of innocent passage through the territorial sea (not through internal waters). It is
understood, however, that the passage must be continuous and expeditious,
except in cases of force majeure. Submarines and other underwater craft are
required to navigate on the surface and to show their flag.
Exclusive Economic Zone. Extends up to 200 nautical miles from the low-
water mark or the baselines, as the case may be. Technically, the area beyond
the territorial sea is not part of the territory of the State, but the coastal State may
exercise sovereign rights over economic resources of the sea, seabed, subsoil,
although other States shall have freedom of navigation
and over-flight, to lay submarine cables and pipelines, and other lawful uses.
States with overlapping exclusive economic zones are enjoined to enter into the
appropriate treaty for the joint exploitation and utilization of the resources in the
area. Included in the Philippines’ exclusive economic zone is the Scarborough
Shoal, a rock formation about 135 kilometers from Iba, Zambales.
High Seas. The high seas are treated as res communes or res nulius,
and thus, are not territory of any particular State. The traditional view is freedom
of the high seas, - i.e., they are open and available, without restriction, to the use
of all States for the purpose of navigation, flight over them, laying submarine
cables and pipes, fishing, research, mining, etc.. At present, however, this rule is
subject to regulation arising from treaty stipulations, e.g., regulations to keep the
sea from pollution or prohibiting nuclear testing.
Air territory [Aerial Domain], This refers to the air space above the land and
waters of the State.
Outer Space. The rules governing the high seas apply also to outer space,
which is considered as res communes. Under customary international law, States have
the right to launch satellites in orbit over the territorial air space of other States.
Pursuant to the Outer Space Treaty of 1967, outer space is free for exploration and
use by all States; it cannot be annexed by any State; and it may be used exclusively
for peaceful purposes. Thus, nuclear weapons of mass destruction may not be placed
in orbit around the earth. In the 1972 Convention on International Liability for Damage
Caused by Space Objects, States which launch objects into space may be held liable
for the harmful contamination caused by such objects, or for the damage which may be
caused by falling objects, e.g., Skylab.
Theories on where outer space begins : (i) Lowest altitude for artificial
earth satellites to orbit without being destroyed by friction (90 kms above earth);
(ii) theoretical limits of air flights (84 kms); and (iii) the functional approach, i.e.,
that the rules shall not depend on the boundaries set, but on the nature of the
activity undertaken.
Bases of Jurisdiction.
Territorial Principle. The State may exercise jurisdiction only within its
territory. Exceptionally, it may have jurisdiction over persons and acts done
outside its territory depending on the kind of jurisdiction it invokes. While there is
no territorial limit on the exercise of jurisdiction over civil matters, a State, as a
general rule, has criminal jurisdiction only over offenses committed within its
territory, except over (i) continuing offenses; (ii) acts prejudicial to the national
security or vital interests of the State; (iii) universal crimes; and (iv) offenses
covered by special agreement (although this is now obsolete).
e.g., piracy jure gentium, genocide, white slave trade, hi-jacking, terrorism, war
crimes. See Attorney General v. Eichmann.
Act of State Doctrine. A State should not inquire into the legal validity of
the public acts of another State done within the territory of the latter. See Underhill
Hernandez, 168 U.S. 250, where the US court refused to inquire into the acts of
Hernandez (a Venezuelan military commander whose government was later
recognized by the US) in a damage suit brought in the US by Underhill, an
American, who claimed that he had been unlawfully assaulted, coerced and
detained by Hernandez in Venezuela. In l/KS. Kirkpatrick v. Environmental
Tectonic Corporation, 29 ILM 182, it was held that other considerations, like
motive, are not material in the application of the doctrine.
Warships and other public vessels of another State operated for non-
commercial purposes. They are generally immune from local jurisdiction under the
fiction that they are “floating territory” of the flag State [Schooner Exchange v.
MacFaddon, 7 Cranch 116], Their crew members are immune from local
jurisdiction when on shore duty, but this immunity will not apply if the crew
members violate local laws while on furlough or off-duty.
Jurisdiction over land territory. Save for the exemptions mentioned above,
the State exercises jurisdiction over everything found within its terrestrial domain.
Over internal waters. The same jurisdiction as over the land area,
since the internal waters are deemed assimilated in the land mass. In the case of
foreign merchant vessels docked in a local port or bay, the coastal State
exercises jurisdiction in civil matters, but criminal jurisdiction is determined
according to the
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English Rule: The coastal State shall have jurisdiction over all
offenses committed on board the vessel except those which do not compromise
the peace of the port [applicable in the Philippines; see U.S. v. Look Chaw, 18
Phil 573; People v. Wong Cheng, 46 Phil 729]; or
French Rule: flag State shall have jurisdiction over all offenses
committed on board the vessel except those which compromise the peace of the
port.
Over the continental shelf. The coastal State enjoys the right of
exploitation of oil deposits and other resources in the continental shelf. In case the
continental shelf extends to the shores of another State, or is shared with another
State, the boundary shall be determined in accordance with equitable principles.
Its vessels. The flag State has jurisdiction over its public vessels
wherever they are, and over its merchant vessels on the high seas. See The Lotus
Case, World Ct. Rep. 20. However, because of the “flags of convenience” controversy,
the UN Convention on the Law of the Sea concedes that a vessel shall have the
nationality of the flag it flies, provided there is a genuine link between the State (whose
flag is flown) and the vessel, i.e., the State must effectively exercise jurisdiction and
control in administrative, technical and social matters over the ship..
Those engaged in illicit traffic in drugs and slave trade. All States
shall cooperate in the suppression of illicit traffic in narcotics and slave trade. Of
late, the same rule should apply with respect to terrorists. Likewise, all States
shall cooperate in the suppression of unauthorized broadcasting from the high
seas, except in case of distress calls.
In the exercise of the right to visit and search. Under the laws of
neutrality, the public vessels or aircraft of a belligerent State may visit and search
any neutral merchant vessel on the open seas and capture it if found to be
engaged in activities favorable to the other belligerent.
The Rome Statute of the International Criminal Court (ICC). The Statute was
adopted in July, 1998 by a Conference of States in Rome. The Court will come
into existence once 60 States have ratified the Statute. The Philippines signed the
ICC Statute on 28 December 2000. As of 04 January 2000,124 countries have
signed the Statute, although only 25 have ratified the same.
The jurisdiction of the Court shall be limited to the most serious crimes
of concern to the international community as a whole. The Court has jurisdiction in
accordance with the ICC Statute with respect to the following crimes: genocide,
crimes against humanity, war crimes, and crimes of aggression. .
RIGHT OF LEGATION
The right of legation. Also known as the right of diplomatic intercourse, this
refers to the right of the State to send and receive diplomatic missions, which
enables States to carry on friendly intercourse. It is not a natural or inherent right,
but exists only by common consent. No legal liability is incurred by the State for
refusing to send or receive diplomatic representatives. Governed by the Vienna
Convention on Diplomatic Relations (1961).
The sending State is not absolutely free in the choice of its diplomatic
representatives, especially heads of mission, because the receiving State has the
right to refuse to receive as envoy of another State a person whom it considers
unacceptable. To avoid embarrassment, States resort to an informal inquiry
[enquiry] as to the acceptability of a particular envoy, to which the receiving State
responds with an informal conformity [agrement]. This informal process is known
as agreation.
and the members of the diplomatic retinue, i.e., the administrative and technical staff.
The Vienna Convention provides that the receiving State has the
special duty to protect diplomatic premises against invasion, damage, or any act
tending to disrupt the peace and dignity of the mission. However, in Reyes v.
Bagatsing, 125 SCRA 553, the Supreme Court held as invalid the denial by the
Mayor.of the application for a permit to hold a public assembly in front of the U.S.
Embassy, there being no showing of a clear and present danger that might arise
as a result of such a rally.
The diplomatic agent also enjoys immunity from the civil and
administrative jurisdiction of the receiving State, and thus, no civil action of any kind
may be brought against him, even with respect to matters concerning his private life. As
a rule, his properties are not subject to garnishment, seizure for debt, execution and the
like, except in the following cases: a) any real action relating to private immovable
property situated in the territory of the receiving State, unless the envoy holds it on
behalf of the sending State for the purposes of the mission; b) an action relating to
succession in which the diplomatic agent is involved as executor, administrator, heir or
legatee as a private person and not on behalf of the sending State; and c) an action
relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions.
for the personal use of the envoy or members of the family forming part of his
household, including articles intended for his establishment. Baggage and effects
are entitled to free entry and, normally, exempt from inspection; articles
addressed to ambassadors, ministers, charge d’affaires are also exempt from
customs
inspection. ,
B. Consular Relations. Consuls are State agents residing abroad for various
purposes but mainly in the interest of commerce and navigation.
Kinds of Consuls:
Ranks:
VI. TREATIES
A. Treaty. A treaty is defined as “an international agreement concluded between States
in written form and governed by international law, whether embodied in a single
instrument or in two or more instruments and whatever its particular designation”
[Vienna Convention on the Law of Treaties, 1969]. It is an agreement between States,
including international organizations of States, intended to create legal rights and
obligations of the parties thereto. It is the ubiquitous instrument through which all kinds
of international transactions are conducted. It is the closest analogy to legislation that
international law has to offer. Other names used to designate international agreements
besides “treaty”, are “convention”, “pact”, “protocol”, “agreement”, “arrangement”,
“accord”, “final act”, general act” and “exchange of notes”. An executive agreement
may, within the context of municipal law, not be considered as a treaty [Commissioner
of Customs v. Eastern Sea Trading, 3 SCRA 351], but from the standpoint of
international law, they are equally binding as treaties. In the case concerning maritime
delimitation and territorial questions between Qatar and Bahrain [Qatar v. Bahrain,
Jurisdiction, First Phase, ICJ Rep. 1994 112], the ICJ ruled that Minutes to a meeting
and exchange of letters constitute an international agreement creating rights and
obligations for the parties.
Entry into force. A treaty enters into force in such manner and on
such date as it may provide, or as the negotiating parties may agree. In the
absence of such a provision, the treaty enters into force as soon as the consent of
all the parties to be bound by the treaty is established.
In Tanada v. Angara, 272 SCRA 18, the Supreme Court ruled that
treaties do indeed limit or restrict the sovereignty of a State. By their voluntary act,
States may surrender some aspects of their power in exchange for greater
benefits granted by or derived from a convention or pact. Under the rule of pacta
sunt servanda, a State is bound to make such modifications in its laws as may be
necessary to ensure the fulfillment of the obligations undertaken under the treaty.
It is for each State to determine under its own law who are its
nationals. This law shall be recognized by other States insofar as it is consistent
with international conventions, international customs, and the principles of law
generally recognized with regard to nationality.
Subjugation.
Cession.
Multiple Nationality. A person may find himself possessed of more than one
nationality because of the concurrent application to him of the municipal laws of
two or more States claiming him as their national. This may arise by the
concurrent application of the principles of jus sanguinis and jus soli, naturalization
without renunciation of the original nationality, legitimation, or legislative action.
This right includes the power to regulate the entry and stay of aliens, and
the State has the right to expel aliens from its territory through deportation or
reconduction.
The alien must accept the institutions of the State as he finds them.
Accordingly, the alien may be deprived of certain rights, e.g., political rights,
acquisition of lands, etc. However, local laws may grant him certain rights and
privileges based on [a] reciprocity; [b] most-favored-nation treatment; or [c]
national treatment, i.e., equality between nationals and aliens in certain matters,
such as in entitlements to due process of law, etc. But these privileges conferred
may be revoked, subject to treaty stipulations.
Where the laws of the State fall below the international standard, it
is no defense that such laws are applicable not only to aliens but to nationals, as
well. In such a case, the doctrine of equality of treatment does not apply.
must be given an opportunity to do justice in its won regular way and without
unwarranted interference with its sovereignty by other states.
Resort to diplomatic protection± After the alien has exhausted all available
local remedies without success, he must avail himself of the assistance of his state.
The tie of nationality must exist from the time of the injury until the
time the international claim is finally settled.
Fundamental principles:
Under the attentat clause, the murder of the head of state or any
member of his family is not to be regarded as a political offense. Neither is
genocide.
The act for which the extradition is sought must be punishable in both the
requesting and requested states. This is known as the rule of double criminality.
fNote: Abduction of the fugitive in the state of refuge is not allowed, as it constitutes a
violation of the territorial integrity of the state of refuge. But if the abduction is effected
with the help of the nationals of the state of refuge itself, then the state of refuge
cannot later demand the return of the fugitive. See: Savarkar Case.]
Sec. 12, Rule 24 of the Rules of Court of the Philippines, provides for this.
The power to issue “letters rogatory” is inherent in the courts of justice.
Asylum. The power of the state to allow an alien who has sought refuge from
prosecution or persecution to remain within the territory and under its protection.
This has never been recognized as a principle of international law.
Principles on Asylum.
Refugees. A refugee is any person who is outside the country of his nationality, or
if he has no nationality, the country of his former habitual residence, because he has
or had well-founded fear of prosecution by reason of his race, religion, nationality or
political opinion and is unable or, because of such fear, is unwilling to avail himself of
the protection of the government of the country of his nationality, or if he has no
nationality, to return to the country of his former habitual residence.
The Refugee Convention of 1951 does not deal with admission, but with
non-refoulement, i.e., that no contracting state shall expel or return a refugee in
any manner whatsoever, to the frontiers of territories where his life or freedom is
threatened. The state is under obligation to grant temporary asylum to refugees.
Pacific or amicable modes. Article 3 of the UN Charter provides that the parties to
any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own choice.
Hostile methods. Where the pacific methods of settlement have failed, states
sometimes find it necessary to resort to hostile methods, which may be severance
of diplomatic relations, retorsion, reprisal or intervention.
is principally addressed to the Security Council, but may be taken over by the
General Assembly under certain conditions.
If the terms of settlement are rejected, then the Security Council may
take:
The General Assembly. Under the Uniting for Peace Resolution, adopted
in 1950, if the Security Council, because of lack of unanimity, fails to exercise its
primary responsibility to maintain peace and security, the General Assembly shall
consider the matter immediately, with a view to making recommendations to the
members for collective measures, including the use of armed forces when
necessary. .
be; (ii) under the domiciliary test, if they are domiciled aliens in the territory of the
other belligerent on the assumption that they contribute to its economic resources;
under the activities test, if, being foreigners, they participate in the hostilities in
favor of the other belligerent.
carry arms openly and observe the laws and customs of war; [e] Franc tireurs, or
guerrillas, provided they are commanded by a person responsible for his
subordinates, wear a fixed distinctive emblem recognizable at a distance, carry
their arms openly, and conduct their operations according to the laws and customs
of war; and [f] Officers and crew of merchant vessels who forcibly resist attack. ,
injuring the enemy is not unlimited; parties are prohibited to launch attacks against
the civilian population as such; and a distinction must be made at all times
between persons taking part in the hostilities and members of the civilian
population, to spare the latter as much as possible. [Note that even if cases of
enforcement action undertaken by the United Nations is not war in the traditional
sense as it is employed only to maintain international peace and security, the
humanitarian rules of warfare should still govern.]
Non-Hostile Intercourse.
Suspension of Hostilities.
Termination of War.
War Crimes. They are acts for which soldiers or other individuals may be
punished by the enemy on capture of the offender.
The Philippines had the authority to try war criminals after World War II
[Kuroda v. Jalandoni, 42 O.G. 4282; Yamashita v. Styer, 75 Phil 563].
Thus, the term “neutrality” should not be confused with the concept of
“neutralized states”, like Switzerland. A permanently neutral or neutralized state is
one whose independence or integrity is guaranteed by other states, usually the
Great Powers, under the condition that such state binds itself never to participate
in an armed conflict or military operation except for individual self-defense. The
permanent neutrality of Switzerland was guaranteed under the “Eight Power
Declaration of March 20, 1815”.
In the Cold War, the states which sided with neither the democracies
nor the communists were referred to as “neutralist” or “non-aligned” states.