PUBLIC INTERNATIONAL LAW

Nature of Public International Law

Public International Law

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

HISTORY

Ancient International Law governed exchange of diplomatic emissaries, peace

treaties, etc. in the world of ancient Romans and earlier. The progressive rule of JUS

GENTIUM seen as a law “common to all man” became the law of the vast Roman

Empire.

Modern International Law began with the birth of nation-states in the

Medieval Age. Governing principle was derived from Roman law or Canon Law

which drew from natural law. Hugo Grotius considered father of modern

International law. What he called “LAW OF THE NATIONS” was later given the

name “INTERNATIONAL LAW” by Jeremy Bentham

The positivist approach reinterpreted International Law not on a basis of

concepts derived from reason but rather on basis of what actually happened in

the conflict between states . With the emergence of nation of sovereignty came the

view of law as commands backed up by threats of sanction. In this view, International

law no law because not from command of sovereign.

Significant milestones in development of international law:

1.) Peace of “Westphalia (ending 30 year war) established a treaty based

framework for peace cooperation. (it was at this time that PACTO SUNT

SERVANDA arose)

2.) Congress of Vietnam (ending Napoleonic wars) created a system of

multilateral political and economic cooperation.

3.) Covenant of the League of Nations (including the Treaty of Versailles

ending WW1) created the Permanent Court of International Justice.

4.) Founding of UN in aftermath of WW2. Shift of power away from Europe

and beginning of truly universal institution. Universalization advanced by

decolonization which resulted in expansion of membership of UN. New states,

carrying a legacy of bitterness against colonial powers, became members.

5.) Cold war period succeeded in maintaining peace through balancing of 2

super powers.

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6.) Dissolution of Soviet Union resulting in end of Cold War with re-

emergence of International relations based on multiple sources of power and not

mainly ideology.

HUGO GROTIUS (De jure Belli Ac Pacis Libri Tes)

International practices, customs, rules and treaties proliferated to the point of

complexity. Several scholars sought to compile them all into organized treatises. The

most important of these was Hugo Grotius whose treatise De jure Belli Ac

Pacis Libri Tes is considered the starting point for modern international

law. Before Hugo Grotius, most European thinkers treated law as something

independent of mankind, with its own existence. Some laws were invented by men but

ultimately they reflected the essential natural law. Grotius was no different, except in

one important respect. Unlike the earlier, thinkers, who believed that the natural law

was imposed by a debt, Grotius believed that the natural law came from an

essential universal reason, common to all men.

This rationalist perspective enabled Grotius to posit several rational principles

underlying law. Law was not imposed from above, but rather derived from

principles. Foundation principle included the anxious the promises must be

kept, and that harming another requires a situation . These 2 principles have

served as the basis for much of subsequent international law. Apart from natural- law

principles, Grotius also dealt with international custom or voluntary law.

Grotius emphasized the importance of actual practices, customs and

treaties- what “is” done- as opposed to normative rules of what “ought to

be” done. This positivist approach to international law strengthens over time. As

nations became the predominant form of state in Europe , and their man-made laws

became more important than religious doctrines and philosophies, the law of what “is”

similarly became more important than the law of what “ought to be”.

Difference between Public International Law and Conflicts of Law

Public International Law Conflicts of Law

As to NATURE International

It is a law of a sovereign

over those subjected to

his way

Transactions of states

private

Municipal or National

Except when embodied in a

treaty or convention,

becomes international in

character. It is a law, not

a above, but between,

sovereign states and is

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Part of Political Law

therefore, a WEAKER

LAW

Part of Civil Law

As to REMEDIES/

SETTLEMENT

International Modes of

Settlement

Like Negotiations, and

arbitration, reprisals

and even war

Local or Municipal Tribunals

through local

administrative and

judicial processes

As to SOURCE Derived from such sources

as international customs,

international

conventions and the

general principles of law

Consists mainly from the

law making authority of

each state

As to PARTIES International Entities

Applies to relations states

INTER SE and other

international persons

Private Persons

Regulates the relations of

individuals whether of the

same nationality or not

As to ENFORCEMENT International Sanctions Sheriff/ Police

Responsibility for

violation

Infractions are usually

collective in the sense that it

attaches directly to the

state and not its

nationals

Generally, entails only

individual responsibility

Regulates the political

intercourse of nations

with each other or

concerns questions of

rights between nations

Regulates the comity of

states in giving effect in

one to the municipal

laws of another relating

to private persons or

concerns the rights of

persons within the

territory and dominion

of one state or nations by

reason of acts, private or

public, done within the

dominion of another, and

which is based on the broad

general principle that one

country will respect and give

effect to the laws of another

so far as can be done

consistently with its own

interests.

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1. The LAWS of PEACE

a. Governs the normal relations of states

b. Human Rights Law

2. The LAWS of WAR

a. When war breaks out between or some of them

b. International Humanitarian Law

c. Laws of Armed Conflicts

3. The LAWS of NEUTRALITY

a. Those not involved in the war, however, their relatives with the

belligerents, or those involved in the war, are governed by the

laws of neutrality

THE SOURCES OF INTERNATIONAL LAW

In the absence of a centralized legislative, executive and judicial structure, there

is no single body able to legislate and there is no system of courts with compulsive

power to decide what the law is nor is there a centralized repository of international

law. Thus, there’s a problem of finding out where the law is. Nevertheless, International

Law exists and there are sources where the law can be found.

2 CLASSIFICATIONS:

1. Formal Sources:

a. The various processes by which rules come into existence (e.g.

legislation, treaty making and judicial decision making and the practice of

states)

2. Material Sources:

a. The substance and content of the obligation. They identify what

the obligations are. Also referred to as “evidence” of

International Law (e.g. state practice, UN resolutions, treaties, judicial

decisions and writings of jurists)

The doctrine of sources lay down conditions for verifying and ascertaining

the existence of legal principles . The conditions are observable

manifestations of the “wills” of the states as revealed in the processes by which

norms are formed (treaty and state practice accepted as law.) The process of

verif ication is inductive and positivistic.

PRIMARY SOURCES

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1. International Treaties and Conventions

a. Are voluntarily entered into by states and encapsulates

express obligations entered into,

2. International Customs

a. These are the consistent practice of states adopted over

several years

b. Is usually invoked where there are no treaties that exist to

cover a particular issue or situation.

c. A custom need not be worldwide as it can be limited to a region

only

3. General Principles of International Law

a. These are the accepted principles of law under major legal

systems

i. e.g. all states created equal

SUBSIDIARY SOURCES

4. Decisions of Courts

a. Decisions of the International Court of Justice and other international

Tribunals are given weight. Decisions of municipal or domestic

courts are given lesser weight except if they pertain to

precedent-setting cases such as the POQUETE HABANA CASE

5. Teachings of Publicists

a. The court shall apply “the teachings of the most highly qualified

publicists of the various nations. As subsidiary means for the

determination of rules of law”

i. Publicist: learned Writers

BASES OF INTERNATIONAL LAW

1. The Law of Nature School

a. Believes that International law is based on the rules of conduct

discoverable by every individual in his own conscience and

though the application of right reason

b. As he is bound to observe these rules without need of a formal or external

prescription, so too is the state, which is composed of individuals.

2. Positivist School

a. Holds that international law is based on the consent of states, and

on such consent only.

b. The consent is expressed in the case of conventional law,

implied in the case of customary law, and presumed in the case

of the general principles of law

3. The Eclectic or Grotian School

a. Represents a compromise between the first 2 schools of thought and

submits that international law is binding partly because it is

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good and right and partly because states have agreed to be

bound by it

b. This appears to be the most widely accepted

FUNCTIONS OF INTERNATIONAL LAW

The Principal Functions are:

1. To promote international peace and security

2. To foster friendly relations among nations and to discourage the use of

force in the solution of differences among them

3. To provide for the orderly regulation of the conduct of states in their

mutual dealings

4. To insure international cooperation in the pursuit of certain common

purposes of an economic, social, cultural or humanitarian character.

BASES OF APPLYING INTERNATIONAL LAW IN LOCAL JURISDICTION

Doctrine of Incorporation

International laws are adopted as part of a state’s municipal law, by a

general provision or clause usually in its Constitution.

Sec. 2, Article 2, 1987 Constitution

The Philippines renounces war as an instrument of national policy,

adopts the generally accepted principles of international law as part of the

law of the land and adheres to the policy of peace, equality, justice,

freedom, cooperation, and amity with all nations

CASE: SECRETARY OF JUSTICE vs. LANTION

Facts: A possible conflict between the US-RP Extradition Treaty and Philippine Law

Issue: WON under the Doctrine of Incorporation, International Law prevails over

Municipal Law

HELD:

No, under the doctrine of Incorporation, rules of international law form part of the law

of the land and other legislative action is needed to make such rules applicable in the

domestic sphere

The doctrine of incorporation is applied whenever local courts are

confronted with situations in which there appears to be a conflict between

a rule of international law and the provisions of the local state’s

constitution/statute.

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First, efforts should first be exerted to harmonize them, so as to give

effect to both. This is because it is presumed that municipal law was enacted with

proper regard for the generally accepted principles of international law in observance

of the incorporation clause.

However, if the conflict is irreconcilable and a choice has to be made between a

rule of international law and municipal law, jurisprudence dictates that the

municipal courts should uphold municipal law.

This is because such courts are organs of municipal law and are accordingly bound by it

in all circumstances. The fact that international law was made part of the law of the land

does not pertain to or imply the primacy of international law over national/municipal

law in the municipal sphere.

The doctrine of incorporation, as applied in most countries, decrees that rules of

international law are given equal standing with but are not superior to, national

legislative enactments.

In case of conflict, the courts should harmonize both laws first and if

there exists an unavoidable contradiction between them, the principle of

LEX POSTERIOR DEROGAT PRIORI-a treaty may repeal a statute and a

statute may repeal a treaty- will apply . But if these laws are found in conflict

with the Constitution, these laws must be stricken out as invalid.

In states where the constitution is the highest law of the law of the land, such as

in ours, both statutes and treaties may be invalidated if they are in conflict

with the constitution.

Supreme Court has the power to invalidate a treaty.

Section 5, Par 2(a), Article 8, 1987 Constitution:

Sec. 5. The Supreme Court shall have the following powers:

(2) Review, revise, modify, or aff irm or appeal or certiorari, as the law

or the Rules of Court may provide, final judgements and orders of lower courts

in:

(a) All cases in which the constitutionality or validity of any treaty,

international or executive agreement, law, presidential decree, proclamation,

order, instruction, ordinance, or regulations in question.

Doctrine Of Transformation

Requires the enactment by the legislative body of such international law

principles as are sought to be part of municipal law.

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Soft Law vs. Hard. Law

• Soft law means commitments made by negotiating parties that are not

legally binding.

• Hard law means binding laws. To constitute law, a rule, instrument or

decision must be authoritative and prescriptive. In international law, hard

law includes self-executing treaties or international agreements, as

well as customary laws. These instruments result in legally enforceable

commitments for countries (states) and other international subjects

THEORIES DEFINING RELATIONSHIP OF INTERNATIONAL LAW WITH

DOMESTIC LAW

Theory of Monism

• International law and domestic law are one legal system, but international law

is superior to the Domestic Law

• It proposes that international law cannot be limited by a State’s

Constitution. If a conflict exists between a Domestic Law and International

Law, it is international Law which should prevail.

Theory of Dualism

International Law and Domestic Law are distinct and separate . The

application of international law is l imited by the Domestic Law or the

State’s Constitution. It would appear that the Philippines is a dualist state.

SUBJECTS OF INTERNATIONAL LAW

The Subjects and Objects of International Law

A subject of international law is an entity with capacity of possessing

international rights and duties and of bringing international claims. This

entity is said to be an international person or one having an international personality,

on the basis of customary or general international law. (Magallona, 18-19).

A subject of Public International Law is an entity directly possessed of rights

and obligations in the international legal order, e.g. a sovereign state,

such as the Phil ippines. (Paras, 43).

An object of Public International Law, on the other hand, is merely i ndirectly

vested with rights and obligations in the international sphere , e.g. a Filipino

private citizen is generally regarded not as a subject but an object of Public

International Law because, while he is entitled to certain rights which other states ought

to respect, he usually has no recourse except to course his grievances

through the Republic of the Phil ippines and its diplomatic officers . (id.).

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SUBJECTS:

1. State

A group of people, living together in a fixed territory, organized for

political ends under an independent government , and capable of entering

into international relations with other states .

Elements: (PT-GS)

a. People

b. Territory

c. Government

d. Independence or Sovereignty

Doctrine of Acts of State

Every sovereign state is bound to respect the independence of every

other sovereign state, and the courts of one country, will not sit in

judgement on the acts of the government of another done with in its own

territory.

2. Colonies and Dependencies

From the viewpoint of international law, they are considered as part and parcel

of the parent state through which all its external relations are transacted

with other states.

a. Colony

A dependent political community consisting of a number of citizens of the

same country who have migrated therefrom to inhabit in another country, but

remain subject to the mother state

b. Dependency

A territory distinct from the country which the supreme sovereign

power resides but belongs rightfully to it and subject to the laws and

regulations which the sovereign may prescribe

3. Mandates and Trust Territories

There are non-self governing territories which have been placed under

international supervision to insure their political, economic, social and educational

advancement.

4. The Vatican

In 1928, Italy and Vatican concluded the Lateran Treaty “ for the purpose of

assuring to the Holy See absolute and visible independence and of

guaranteeing to it absolute and indisputable sovereignty in the field of

international relations”

CASE: The Holy See vs. Rosario, Jr. Dec. 3, 1994

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The Lateran Treaty established the statehood of the Vatican City "for the

purpose of assuring to the Holy See absolute and visible independence and of

guaranteeing to it indisputable sovereignty also in the field of international relations"

In view of the wordings of the Lateran Treaty, it is difficult to determine whether

the statehood is vested in the Holy See or in the Vatican City. Some writers even

suggested that the treaty created two international persons — the Holy See and Vatican

City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the

attribution to it of "sovereignty" must be made in a sense different from that in which it

is applied to other states.

The Vatican City represents an entity organized not for political but

for ecclesiastical purposes and international objects.

Despite its size and object, the Vatican City has an independent

government of its own, with the Pope, who is also head of the Roman

Catholic Church, as the Holy See or Head of State , in conformity with its

traditions, and the demands of its mission in the world. Indeed, the world-wide interests

and activities of the Vatican City are such as to make it in a sense an "international

state"

One authority wrote that the recognition of the Vatican City as a state has

significant implication — that it is possible for any entity pursuing objects essentially

different from those pursued by states to be invested with international personality.

Inasmuch as the Pope prefers to conduct foreign relations and enter

into transactions as the Holy See and not in the name of the Vatican City ,

one can conclude that in the Pope's own view, it is the Holy See that is the

international person.

The Republic of the Philippines has accorded the Holy See the

status of a foreign sovereign. The Holy See, through its Ambassador, the Papal

Nuncio, has had diplomatic representations with the Philippine government since

1957 (Rollo, p. 87). This appears to be the universal practice in international relations.

Principles:

• Article 31(a) of 1961 Vienna Convention on Diplomatic Relations

In Article 31 (a) of the 1961 Vienna convention on Diplomatic Relations, a

diplomatic envoy is granted immunity from the civil and administrative

jurisdiction of the receiving state over any real action relating to private

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immovable property situated in the territory of the receiving state

which the envoy holds in behalf of the sending state for the purposes of the

mission.

• Articles 20-22 of 1961 Vienna Convention on Diplomatic Relations

• Lateran Treaty

(1929) Pact of mutual recognition between Italy and the Vatican, signed in the

Lateran Palace, Rome. The Vatican agreed to recognize the state of

Italy, with Rome as its capital , in exchange for formal establishment

of Roman Catholicism as the state religion of Italy , institution of

religious instruction in the public schools, the banning of divorce, and

recognition of papal sovereignty over Vatican City and the complete

independence of the pope. A second concordat in 1985 ended

Catholicism's status as the state religion and discontinued

compulsory religious education.

5. The United Nations (192 Nations)

International organization created at San Fransisco Conference held in the

US from April 25 to June 26, 1945. UN succeeded the League of Nations and is

governed by a charter that came into force on October 24, 1945

Official Languages of UN: (FRESCA)

French

Russian

English

Spanish

Chinese

Arabic

Principal Purposes of UN:

1. Maintain international Peace and Security

2. Develop friendly relations among nations

3. Achieve international cooperation

4. Centre for harmonizing actions of nations for attainment of these

common goals

Structure of the UN:

a. General Assembly

Central organ which all members are represented

2/3 vote required

Carlos P. Romulo served as the President of the 4 th session of

General Assembly

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Functions: (S-BCDE)

i. Supervisory

ii. Budgetary

iii. Constituent

iv. Deliberative

v. Elective

b. Security Council

Organ responsible for the maintenance of peace and security ;

undertakes preventive and enforcement actions

Membership:

1. Permanent Members (FRUCU)

• China

• UK

• France

• Russia

• USA

2. Non-Permanent Members

5- from African and Asian States

2- from Latin American States

2- from Western European and Other States

1-from Eastern European States

c. Economic and Social Council

Exerts effort towards higher standards of living solutions of

international economic, social health and related problems, universal respect for

and observance of human rights and fundamental freedoms

d. Trusteeship Council

Organ charged with the administration of the International Trusteeship

System (idle Council)

e. The Secretariat

Chief administrative organ of the UN

Current Secretary General(as of 2012)- Ban Ki-Moon of South

Korea(8 th )

Secretaries-General serve for five-year terms that can be renewed

indefinitely

f. International Court of Justice

Judicial organ of UN; world court governed by the statute which is

annexed to and made part of the UN charter

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Court is composed of 15 judges, who are elected for terms of office

of nine years by the United Nations General Assembly and the

Security Council.

Election every 3 years

Peace palace in Hague, Netherlands

Must possess the qualif ications required in their respective

countries for appointment to the highest judicial offices

Cezar Bengzon of SC elected to the ICJ

6. Belligerent Community

They are group of rebels under an organized civil government who

have taken up arms against legitimate government. When

recognized, considered as a separate state for purposes of conflict and

entitle to all the rights and subjected to all the obligations of a full

pledged bell igerent under the laws of war.

7. International Administrative Bodies

Certain administrative bodies created by agreement among states

may be vested with international personality when 2 conditions concur:

a. Their purpose are mainly non-political

b. They are autonomous and not subject to the control of any state

i. Examples:

1. International Labour Organization

2. Food and Agricultural Organization

3. World Health Organization

CASE: SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER-

AQUACULTURE DEPARTMENT(SEAFDEC-AQD) , vs. NATIONAL LABOR

RELATIONS COMMISSION

Southeast Asian Fisheries Development Center-Aqua Culture Department is a

department of SEAFD, an international institution formed by an international agreement

of Southeast Asian countries. Private petitioner sent a letter to private respondent,

informing him of his termination due to financial restraints of the department. Latter

was informed that he was going to receive separation pay. Upon failure of petitioner to

give separation pay, private respondent Lazaga filed a complaint with the Labor Arbiter,

which decided in favor of private respondent amidst contention of petitioner that Labor

Arbiter doesn’t have jurisdiction over them. NLRC affirmed the decision of Labor

Arbiter.

Issue: WON SEAFEC- ACD is immune from suit owing to its international character

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Held: YES, being an intergovernmental organization, SEAFDEC including its

Departments (AQD), enjoys functional independence and freedom from

control of the state in whose territory its off ice is located.

One of the basic immunities of an international organization is immunity

from local jurisdiction, i .e, that it is immune from the legal writs and processes

issued by the tribunals of the country where it is found. The obvious reason for this is

that the subjection of such an organization to the authority of the local courts would

afford a convenient medium thru which the host government may interfere in

their operations or even influence or control its policies and decisions of

the organization; besides, such subjection to local jurisdiction would impair the

capacity of such body to discharge its responsibilities impartially on behalf of its

member-states

8. Individuals

Only as an object of international law who can act only through the

instrumentality of his own state in matters involving other states

THE CONCEPT OF STATE

ELEMENTS OF THE STATE:

1. People

It refers to the human beings living within its territory . They should be of

both sexes and sufficient in number to maintain and perpetuate themselves

Individuals of different races, languages and religion very often actually from

one people that is to say, the people of one state

• Citizens, Nationals, Subjects

2. Territory

It is the fixed portion of the surface in the earth in which the people

of the state reside

A defined territory is necessary for jurisdictional reasons and in order to

provide for the needs of the inhabitants

o As a practical Requirement:

It should be big enough to be self- sufficient and

small enough to be easily administered and

defended

The Terrestrial or Land Domain

It refers to the land mass on which the inhabitants live.

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Modes of Acquiring Land Territory

1. Discovery and Occupation

Original mode by which territory not belonging to any state or TERRA

NULLIUS is placed under the sovereignty of the discovering state

Need not be uninhabited provided that it can be established that the natives

are not sufficiently civilized and can be considered possessing not rights of

sovereignty but only rights of habitation

o Requisites for a valid discovery and occupation

Possession

Administration

Inchoate Title of Discovery

It is acquired by the claimant state pending compliance with

the second requirement which is administration

2. Prescription

Continuous and uninterrupted possession over a long period of

time, just like in civil law.

In international law, however, there is no rule of thumb as to the length

of time needed for acquisition of territory through prescription

Grotius Doctrine if Immemorial Prescription:

Uninterrupted possession going beyond memory

3. Cession( by treaty)

Territory is transferred from 1 state to another by agreement

between them (sale, donation, barter/ exchange and testamentary

disposition)

4. Subjugation

Having been previously conquered or occupied in the courses of

war of the enemy, is formally annexed to it at the end of the war,

conquer alone inchoate right since it is the formal act of annexation that

complements acquisition.

5. Accretion

Based on Accessio Cedot Principoli accomplished through both

natural or artificial processes as by the gradual and imperceptible

deposit of soil on the coasts of the country through the action of the

water or by reclamation projects.

Loss of Territory (SPRECC-D)

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a) Dereliction

o Physical withdrawal

o Abandonment

b) Cession- agreement between states

c) Conquest

d) Erosion or other natural causes

e) Prescription

f) Subjugation

g) Revolution

Doctrine of Effective Occupation

Under this doctrine, discovery of terra nullius is not enough to acquire

title to the discovered territory

The Internal Waters

Also called as National or Inland, are those found in the bodies of

water within the land mass and the waters in gulfs and bays up to the point where

the territorial waters begin.

The Maritime or Fluvial Domain

This consists of the bodies of water within the land mass and the

waters adjacent to the coasts of a state to a specified limit . Included In the

maritime and fluvial domain are the landlocked lakes, rivers, manmade canals, the

waters in certain gulfs, bays and straits, and the territorial sea.

Archipelago Doctrine

The waters around, between and connecting the islands of the

archipelago, regardless of their breadth and dimensions , form part of the

internal waters of the Philippines (2nd sentence, Article 1, 1987 Constitution)

To determine the territorial owners

Archipelago= Pelgus which refer to the islands, a sea studded with

many island

o Kinds:

Coastal- situated close to a mainland and may be

considered a part thereof

• Example: Lofien islands, Norway

Mid-ocean- situated in the ocean or such distance

arising from the coasts of frim land

• Example: Philippines

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United Nations Convention on the Laws of the Sea (UNCLOS)

Uniform breadth of 10 miles for the territorial sea , a contiguous

zone of 18 miles from the outer limits of the territorial sea , and

economic zone or patrimonial sea extending 200 miles from the

low- water mark of the coastal

3 international Conferences have been called to formulate a new law of the

seas.

The conference have dealt with such controversial matters a the breadth of

the territorial seas, use of straits for international navigation, continental

shelf, concept of an exclusive economic zone, freedom of the high seas,

status of archipelagos and regime of islands.

o 1st conference: held in 1956-58 at Geneva Switzerland

o 2nd Conference: held in 1960 at Geneva Switzerland

o 3rd conference: held in 1970 by the UN which resulted in the

adoption of a new convention of the Law of the Sea and

became effective on: November 16, 1994, signed in Jamaica,

119 out of 150 conference-states

Straight Baseline Method

Drawn connections selected points on the coast without appreciable

departure from the general shape of the coast

Thalweg Doctrine

For boundary rivers, in the absence of an agreement between the riparian

states, the boundary line is laid on the middle of the main navigable

channel.

Middle of the Bridge Doctrine

Where there is a bridge over a boundary river, the boundary line is

the middle or center of the bridge.

• Bays and Gulfs

o A bay is a well-marked indention in the coast the area of which

at least is as large or larger than, that of the semi- circle

whose diameter is a line drawn across its mouth . Also referred to

as the juridical bay

• Strait

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o Narrow passageways connecting two bodies of water . If the

distance between the 2 opposite coast is not more than six miles, they

are considered internal.

• Canals

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 case of archipelagic state,

from the baseline.

Philippine Territorial Sea

Based on historic rights or title or as it is often called the

treaty limits theory

o 3 mile limit rule

Doctrine of Right of Innocent Passage

Means navigation through the terrirorial seas of a state for the

purpose of traversing that seas without entering internal waters or of

proceeding to internal waters , or making for the high seas from internal waters, as

long as it is not prejudicial to the peace, public good order or security of

the coastal state.

Applicable only on passage on territorial sea and not to internal

waters. Point of passage is important

Involuntary entrance may be due to the following:

1. Lack of provisions

2. Unseaworthiness of the vessel

3. Increment weather

4. Other cases of force majeure like pursuit of pirates

Territorial sea vs. Internal waters of the Philippines

Territorial sea – high seas up to 12 nautical miles

Internal waters- all waters internal such as canals

CASE: Portugal vs. India

It was common ground between the Parties that during the British and post-

British periods the passage of private persons and civil officials had not been subject to

any restrictions beyond routine control. Merchandise other than arms and ammunition

had also passed freely subject only, at certain times, to customs regulations and such

regulation and control as were necessitated by considerations of security or revenue.

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The Court therefore concluded that, with regard to private persons, civil

off icials and goods in general there had existed a constant and uniform

practice allowing free passage between Daman and the enclaves, it was, in

view of all the circumstances of the case, satisfied that that practice had

been accepted as law by the Parties and had given rise to a right and a

correlative obligation.

As regards armed forces, armed police and arms and ammunition,

the position was different.

As regards arms and ammunition, the Treaty of 1878 and rules framed under the Indian

Arms Act of 1878 prohibited the importation of arms, ammunition or military stores

from Portuguese India and its export to Portuguese India without a special licence.

Subsequent practice showed that this provision applied to transit between

Daman and the enclaves.

The finding of the Court that the practice established between the Parties had

required for the passage of armed forces, armed police and arms and ammunition the

permission of the British or Indian authorities rendered it unnecessary for the Court to

determine whether or not, in the absence of the practice that actually prevailed, general

international custom or general principles of law recognized by civilized nations, which

had also been invoked by Portugal, could have been relied upon by Portugal in support

of its claim to a right of passage in respect of these categories. The Court was dealing

with a concrete case having special features: historically the case went back to a period

when, and related to a region in which, the relations between neighbouring States were

not regulated by precisely formulated rules but were governed largely by practice:

finding a practice clearly established between two States, which was accepted by the

Parties as governing the relations between them, the Court must attribute decisive

effect to that practice. The Court was, therefore, of the view that no right of passage in

favour of Portugal involving a correlative obligation on India had been established in

respect of armed forces, armed police and arms and ammunition.

The Court found that the events which had occurred in Dadra on 21-22 July

1954 and which had resulted in the overthrow of Portuguese authority in that enclave

had created tension in the surrounding Indian district, having regard to that tension, the

Court was of the view that India's refusal of passage was covered by its power of

regulation and control of the right of passage of Portugal.

Contiguous Zone

This refers to the waters beyond the territorial seas but not in excess

of 12 miles from the outer limits of the territorial sea over which the coastal

state exercises a protective jurisdiction to prevent the punish infringements of its

customs, fiscal immigration or sanitary regulations (1982 Convention on the Sea)

Exclusive Economic Zone

19

It is that expanse of the sea extending 200 nautical miles from the

coast or baselines of the state over which it asserts exclusive jurisdiction and

ownership over all living and non-living resources found therein.

Contiguous Exclusive Economic Zone

12 nautical miles from territorial sea 200 nautical miles from the baseline

Not a territory but state may exercise

limited jurisdiction over it to prevent

infringement of customs, fiscal

immigration or sanitary regulations

Exclusive for economic

Continental Shelf

It is the seabed and subsoil of the submarine areas that extend

beyond its territorial sea throughout the natural prolongation of its land

territory to the outer edge of the continental margin , or to a distance of 200

nautical miles from the baselines from which the breadth of the territorial sea is

measured where the outer edge of the continental margin does not extend up to that

distance (Art. 76, par.1, UNCLOS)

High Seas

It is treated as RES COMMUNES or RE NULLIUS, and thus, are not

territory of a particular state. These are the waters which do not constitute the

internal waters, archipelagic waters, territorial sea and exclusive economic

zone of a state. They are beyond the jurisdiction and sovereign rights of States.

Res Nullius

Res Communes

Freedom of Navigation

Flag State Flag Navigation

Refers to the authority under which a

country exercises regulatory control

over commercial vessels which is

registered under its flag

A vessel which is registered in a

foreign country for convenience

The flag is different from the

nationality of the owner

THE PHILIPPINE TERRITORY

Philippine Baseline Laws

1. Normal Baseline Method

a. Drawn from the low water mark of the coast, to the breadth claimed,

following its sinuousness and curvatures but excluding the

internal waters in the bays and gulfs

2. Straight Baseline Method

20

a. Joining appropriate points may be employed in drawing the

baseline from which the breadth of the territorial seas is

measured. (Art. 7 UNCLOS)

Baseline Law

1961 RA. 7046

5446- overlapping zone on Malaysia

9522- They ceded to own some islands which are not suitable for economic

zone

Tomas Cloma

o A Filipino adventurer and fishing magnate who discovered Kalayaan

Island

o 1956 Cloma declared separate government from the Philippines

o Cloma sold it to the Philippines during the Marcos Regime for P1

only

Treaty of Paris

o For $20M, Spain sold the Phil ippines to US on December 10,

1898

Treaty of Washington

o For $100K for the acquisition of the islands not included in

the Treaty of Paris Nov. 7, 1900

US- Britain

o January 2, 1930 for the Acquisition of the islands in the South

(Sulu, tawi-tawi)

Marcos Issued PD 1956 creating kalayaan as a province of Palawan

Treaty of Annexation

o Making the Hawaii part of the US

3. Government

Defined as the agency through which the will of the state is

formulated, realized and expressed.

In International law, it is the instrumentality that represents the state in

its dealings with other international persons. The state can assert rights, and is

held responsible, through its government.

De Jure- A government in accordance of the law

De Facto- A government not in accordance with the law

FORMS OF GOVERNMENT

A form of Government, or form of state of governance, refers to the set of

political institutions by which a government of a state is organized in

order to exert its powers over a house in the congress body politic .

Synonyms include “regime type” and “system of government”.

1. Democracy (Ruled by Majority)

21

It is best described by Abraham Lincoln as a form of government that is of

the people, by the people and for the people. It is a form of government, which

allows people to choose the representatives amongst themselves who are

given the rights to form the government . A democracy usually has a standard

Constitution that confers certain rights of freedom and expression (and many other

rights) to its citizens and expects certain duties from them and a uniform law to govern

the entire nation.

Direct or Pure Democracy

One in which the will of the State is formulated or expressed directly

and immediately through the people in a mass meeting or primary

assembly.

Indirect, Representative or Republican Democracy

One in which the will of the state is formulated and expressed through

the agency of a relatively small and select body of persons chosen by the

people to act as their representatives.

2. Aristocracy

One in which political power is exercised by a few privileged class

3. Monarchy

Monarchies are one of the oldest political system known, developing from tribal

structure with one person the absolute ruler

Monarchy implies rule or the power of government in the hands of a individual

who has inherited the role and expects to bequeath it to the descendants. Currently

there exist 31 monarchs reigning over 45 extant sovereign monarchies in the world, 16

of which are Commonwealth Realms that formally recognize Queen Elizabeth II as their

head of state and Prince Charles as heir.

Kinds of Monarchy:

Absolute monarchy- one in which the ruler by divine right

Limited monarchy- one in which the ruler rules in accordance

with the constitution

4. Presidential

One in which the state makes the executive constitutionally

independent of the legislature as regards his policies and acts

5. Parliamentary

One in which the state confers upon the legislature the power to

terminate the tenure of off ice of the real executive

6. Unitary

One in which the control of national and local is exercised by the

central or national government

22

7. Federal

One in which the powers of government are divided between 2 sets of

organs, one for national affairs and the other for local affairs .

• The politics of the Phil ippines takes place in an organized framework of

presidential, representative and democratic republic whereby the

president is both the head of state and the head of government

within a pluriform multiparty system. This system revolves around 3

branches: the legislative branch (law-making body), the executive branch (law-

enforcing body) and the judicial branch (the law- interpreting body).

Executive power is exercised by the government under the leadership of the

president

Legislative power is vested both the government and the 2 chamber congress-

The Senate (the upper chamber) and the House of Representative (the lower

chamber

Judicial power is vested in the courts with the Supreme Court of the Philippines

as the highest judicial body

Despotism

It is the form of rule wherein a single leader rulers the entire

population and all his or her subjects are considered to be his or her

slaves. The Pharaoh of Egypt is an example of this sort of rule. In case of contemporary

contention, the term implies tyrannical rule.

Dictatorship

Implies rule by an individual who has complete power over the country .

Although there have been several definitions of dictatorship, broadly all the various

types and forms of dictatorship tend to exhibit totalitarian characteristics. When

the power of the government does not come from the people, is unlimited and tends to

expand their scope of powers to control every aspect of people’s life, the form can be

termed a dictatorship.

Oligarchy (Rule by Few)

It is the form of government where a small group has the power to govern

or rule. Aristotle had coined the term oligarchy as synonym for rule by the

rich (which is known as plutocracy) oligarchy now simply refers to rule of the

privileged few.

Plutocracy

Refers to form of government, which is run by the rich. A plutocracy is

a form of government, which is controlled by a group of extremely wealthy individuals.

In today’s world many political analyst argue there are still some situations in which

23

private corporations and wealthy individuals have a strong hold over the government,

which can be synonymous with plutocracy

Communist Government

It is a form of Government in which the state is governed by a one-party

system. This form of government works on the lines of Marxism- Leninism. Thus,

the state and the communist party claim to act in accordance to the wishes of

the working class or the peasantry . Although a communist government claims to

implement democratic dictatorship of the proletariat, it tends to incline towards the

abolition of the state and implementation of communism.

RECOGNITION

Definition

It is an act by which a state acknowledges the existence of another

state, government or bell igerent community and indicates wil lingness to

deal with the entity as such under the rules of international law.

DOCTRINES ON RECOGNITION OF GOVERNMENT

1. Wilson/ Tobar Doctrine

Precludes recognition of government established by revolution, civil

war, coup d’état or other forms of internal violence until they freely

elected representative of the people have organized a constitutional

government

2. Estrada Doctrine

Dealing or not dealing with the government established through

political upheaval is not a judgement on the legitimacy of the said

government (Mexican Minister Genaro Estrada)

3. Stimson Doctrine

Precludes recognition of any government established as a result of external

aggression (US Sec of State Henry Lewis Stimson)

EFFECTS OF RECOGNITION OF A STATE OR GOVERNMENT

1. Diplomatic relations

2. Right to sue in courts of recognizing state

3. Right to possession of properties of predecessor on the recognizing

state

4. All acts of the recognized state or government are validated

retroactively; preventing the recognizing state from passing upon their legality

in its own courts. (Act of State Doctrine)

PRACTICAL CRITERIA FOR RECOGNITION OF A GOVERNMENT

1. it has control of the administrative machinery of the state with

popular acquiescence; and

2. It is willing and able to comply with its international obligations

24

KINDS OF RECOGNITION OF GOVERNMENT

De Jure Recognition De Facto Recognition

Relatively permanent Provisional(duration of armed

struggle)

Vests title to properties of

government abroad

Does NOT vest title to properties of

government abroad

Brings about full diplomatic relations Limited to certain juridical relations

4. Sovereignty

Supreme and uncontrollable power inherent in a State by which that

State is governed.

The government possesses full control over its own affairs within a

territorial geographic area or limit

CASE: North cotabato vs. GRP gr no. 183591

FACTS: The Memorandum of Agreement on the Ancestral Domain (MOA-AD) brought

about by the Government of the republic of the Philippines (GRP) and the Moro Islamic

Liberation Front (MILF) as an aspect of Tripoli Agreement of Peace in 2001 is scheduled

to be signed in Kuala Lumpur, Malaysia.

This agreement was petitioned by the Province of North Cotabato for Mandamus and

Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary

Restraining Order. The agreement mentions "Bangsamoro Juridical Entity" (BJE) to

which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral

Lands of the Bangsamoro; authority and jurisdiction over all natural resources within

internal waters. The agreement is composed of two local statutes: the organic act for

autonomous region in Muslim Mindanao and the Indigenous People’s Rights Act (IPRA).

ISSUE: Whether or not the GRP violated the Constitutional and statutory provisions on

public consultation and the right to information when they negotiated and initiated the

MOA-AD and Whether or not the MOA-AD brought by the GRP and MILF is

constitutional

HELD:GRP violated the Constitutional and statutory provisions on public

consultation and the right to information when they negotiated and

initiated the MOA-AD and it are unconstitutional because it is contrary to

law and the provisions of the constitution thereof.

REASONING: The GRP is required by this law to carry out public

consultations on both national and local levels to build consensus for

peace agenda and process and the mobilization and facilitation of

people’s participation in the peace process.

25

Sec. 7. The right of people on matters of public concern shall be recognized, access to

official records and to documents and papers pertaining to official acts, transactions, or

decisions, as well as to government research data used as basis for policy development

shall be afforded the citizen, subject to such limitations as may be provided by law.

Article II

Sec. 28. Subject to reasonable conditions prescribed by law , that state adopts and

implements a policy of full public disclosure of all its transactions involving public

interest.

LGC (1991), “require all national agencies and officers to conduct periodic

consultations. No project or program be implemented unless such consultations are

complied with and approval mus be obtained.”

ARTICLE XVII (AMENDMENTS OR REVISIONS)

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

1. The Congress, upon a vote of three-fourths of all its Members; or

2. A constitutional convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof

shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be

held not earlier than sixty days nor later than ninety days after the approval of such

amendment or revision.

MOA-AD states that all provisions thereof which cannot be reconciled with the present

constitution and laws “shall come into force upon signing of a comprehensive compact

and upon effecting the necessary changes to the legal framework.” The president’s

authority is limited to proposing constitutional amendments. She cannot guarantee to

any third party that the required amendments will eventually be put in place nor even

be submitted to a plebiscite. MOA-AD itself presents the need to amend therein.

KINDS OF SOVEREIGNTY:

1. Internal – Supreme Authority of a state within its territory (Police

Power)

2. External- Does not have any force in foreign territory

Q: Is Sovereign absolute?

A: In domestic sphere- YES!

In International sphere- NO!

CASE: Tanada vs Angara, 272 SCRA 18, May 2, 1997

26

While sovereignty has traditionally been deemed absolute and all-encompassing on the

domestic level, it is however subject to restrictions and limitations voluntarily agreed to

by the Philippines, expressly or impliedly, as a member of the family of nations

By the doctrine of incorporation, the country is bound by generally accepted principles

of international law, which are considered to be automatically part of our own laws.

One of the oldest and most fundamental rules in international law is pacta

sunt servanda — international agreements must be performed in good

faith.

"A treaty engagement is not a mere moral obligation but creates a legally binding

obligation on the parties . . . A state which has contracted valid international obligations

is bound to make in its legislations such modifications as may be necessary to ensure

the fulfillment of the obligations undertaken."

By their voluntary act, nations may surrender some aspects of their state power in

exchange for greater benefits granted by or derived from a convention or pact. After all,

states, like individuals, live with coequals, and in pursuit of mutually covenanted

objectives and benefits, they also commonly agree to limit the exercise of their

otherwise absolute rights.

The sovereignty of a state therefore cannot in fact and in reality be

considered absolute. Certain restrictions enter into the picture: (1)

limitations imposed by the very nature of membership in the family of

nations and (2) l imitations imposed by treaty stipulations. As aptly put by

John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient

nationalism is over.

Thus, when the Phil ippines joined the United Nations as one of its 51

charter members, it consented to restrict its sovereign rights under the

"concept of sovereignty as auto-limitation."

The Philippines has effectively agreed to limit the exercise of its sovereign powers of

taxation, eminent domain and police power. The underlying consideration in this partial

surrender of sovereignty is the reciprocal commitment of the other contracting states in

granting the same privilege and immunities to the Philippines, its officials and its

citizens.

The point is that, as shown by the foregoing treaties, a portion of sovereignty may

be waived without violating the Constitution, based on the rationale that

the Phil ippines "adopts the generally accepted principles of international

law as part of the law of the land and adheres to the policy of . . .

cooperation and amity with all nations."

EFFECT OF CHANGE OF SOVEREIGNTY

The effect is that the political laws of the former sovereign are not

merely suspended but abandoned. As they regulate the relations between the

ruler and the rules, these laws fall to the ground ipso facto unless they are retained or

re-enacted by positive act of the sovereign.

27

Non- political law, by contrast, continues in operation, for the reason

also that they regulate private relations only, unless they are changed by the new

sovereign or are contrary to its institutions.

RECOGNITION OF STATES

Theories on Recognition of States

1. Declaratory School

a. Merely affirms an existing fact like the possession by the state of the

essential elements

b. Discretionary and political

2. Constitutive School

a. It is the act of recognition that constitutes the entity into an

international person

b. Compulsory and legal

c. May be compelled once the elements of a state are

established

BELLIGERANCY

The status of parties legally at war ( e.i. between nations or if in civil war,

government treats other as sovereign power)

Effects of bell igerency : relations of warring parties determined by laws of

war, granting of bell igerency rights. Neutral nations abstain from taking

sides.

CONDITIONS RECOGNITION OF BELLIGERENCY

1. There must be an organized civil government directing the rebel forces ;

2. The rebels must occupy a substantial portion of the territory of the

state;

3. The c o n f l i c t b e t w e e n t h e l e g i t i m a t e g o v e r n m e n t a n d t h e

r e b e l s m u s t b e serious, making the outcome uncertain; and

4. The rebels must be willing and able to observe the laws of war .

EFFECTS OF RECOGNITION OF BELLIGERENCY

1. Responsibility for the acts of rebels resulting to inquiry to nationals of

recognizing state shall be shifted to rebel government

2. The legitimate government recognizing the rebels as bell igerents

shall observe laws or customs of war in conducting hostil it ies

3. Third states recognizing belligerency should maintain neutrality

Recognition is only provisional and only for purposes of hostil it ies

The Principle of State Continuity

28

It means that the legal existence of a state continues notwithstanding

changes in the size of its population or territory or in the form or leadership of its

government as long as the four essential elements of statehood are

retained.

Creation of New State (RP-USA-A)

I. By Revolution (Philippines)

II. By peaceful acquisition of independence(Malaysia)

III. By unification of Several (Italy)

IV. By Secession (Bangladesh )

V. By Agreement (Netherlands)

VI. By attainment of Civilization (Japan)

Extinction of the State (DAD-MAPE)

I. Overthrow of government resulting to anarchy (Yugoslavia)

II. Emigration on masses of its population (Timbuktu)

III. Annexation (Vietnam)

IV. Merger or Unification (Germany)

V. Dismemberment (Yugoslavia)

VI. Dissolution

VII. Partial Loss of Independence (Hawaii)

FUNDAMENTAL RIGHTS OF STATES

1. Right to Existence and Self-Defense

a. Most comprehensive as all the rights of state flow from it

b. State may take measures including the use of force as may be necessary

to counteract any danger to its existence

Aggression

The use of armed force by a state against the sovereignty, territorial

integrity or political independence of another State or in any other manner

inconsistent with the Charter of the United Nations as set out in this definition

ACTS OF AGRESSION

I. Invasion or attack of a state

II. Bombardment of state

III. Blockade of ports or coasts

IV. Use of armed forces within a state in contravention to any agreement

V. Action of state in allowing its territory for an act of aggression against a third

state

VI. Sending of armed groups or mercenaries which carry an act of armed force

against another state

REQUISITE FOR PROPER EXERCISE OF RIGHT OF SELF-DEFENSE

a. Armed attack

29

b. Self-defensive action taken by the attacked state must be reported

immediately to the Security Council

c. Such action shall not in any way affect the right of the Security Council

to take at any time action as it deems necessary to maintain or restore

international peace and security

Collective Self- Defense

Right of state to come to the defense of a state whose situation

meets the condition of legitimate individual self-defense under the UN

Charter

Abatement Doctrine

When conditions in the territory of a neighbouring state might result

in anarchy or disorder and the authorities of the state are unable to

restore order and prevents spinning over the territory of another the latter has

the duty to intervene even by armed force to restore order in the border

and to end the chaos.

2. Right of Sovereignty and Independence

Sovereignty

It is the totality of the powers, legal competence, and privileges

arising from customary international law, and not dependent on the consent of

another state.

Independence

Means freedom from control by other state or group of state and not

freedom from the restrictions that are binding on all states forming the

family of nations; carries with it by necessary implication the correlative duty if non-

intervention

Intervention

An act by which a state interferes with the domestic or foreign affairs

of another state through the employment of force or threat which may be

physical, political or economic.

WHEN INTERVENTION SANCTIONED:

1. As an act of self-defense

2. When decreed by the Security Council as a preventive or enforcement

action for the maintenance of international peace and security

3. When such action is agreed upon in a treaty

4. When requested from fellow states or from the UN by the parties to a

dispute or a state beset by rebellion

Drago Doctrine

30

Intervention not allowed for the purpose of making a state pay its

public debts

3. Right of Equality

Every state is entitled to the same protection and respect as are

available to other states under the rules of international law.

Doctrine of State Immunity

As a consequence of the independence, territorial supremacy and

equality, a state enjoys immunity from the exercise of jurisdiction

(legislative, executive or juridical) by another state, unless it has given consent, waives

its immunity, or voluntarily submitted to the jurisdiction of the court concerned.

THE STATE IS DEEMED TO HAVE WAIVED ITS IMMUNITY:

A. When it gives consent at the time the proceeding is instituted

B. When it takes steps relating to the merits of the cases before invoking

immunity

C. When by treaty or contract it had previously given consent

D. When by law or regulation in force at the time complaint arose it has

indicated that it will consent to the institution of the proceedings

4. Right to Territorial Integrity and Jurisdiction

The territory of a state usually consists of the terrestrial domain,

maritime and fluvial domain and the aerial domain

5. Right of Legation

It is the right of the state to maintain diplomatic relations with other

states. The right to send diplomatic representatives is known as the

active right of legation. The right to receive diplomatic representatives

is known as the passive right of legation.

AGENTS OF DIPLOMATIC INTERCOURSE

1. Head of state

Embodiment of and represents, the sovereignty of the state

Enjoys the right to special protection for his physical safety and the preservation

of his honour and reputation

His quarters, archives, property and means of transportation are inviolate

Principle of Extraterritoriality

2. Foreign Secretary or Minister

3. Members of Diplomatic Service

4. Special Diplomatic Agents appointed by Head of the State

5. Envoys Ceremonial

FUNCTIONS OF DIPLOMATIC MISSIONS

31

1. Representing sending state in receiving state

2. Protecting in receiving state interests of sending estate and its

nationals

3. Negotiating with government of receiving state

4. Promoting friendly relations between sending and receiving states and

developing their economic, cultural and scientific relations

5. Ascertaining by all receiving state and reporting thereon to

government of sending state

6. IN some cases, representing friendly governments at their request

Agreation

Process in appointment of diplomatic envoy where state resort to an

informal inquiry(enquiry) as to the acceptability of a particular envoy, to which the

receiving state responds with an informal conformity (agreement)

Letre De Creance (Letter of Credence)

With the name, rank, and general character of his mission, and a

request for a favourable reception and full credence

KINDS OF CONSULS

CONSULES MISSI CONSULES ELECTI

Professional or career consuls who

are required to devote their full t ime

to discharge their duties

Perform consular functions only in

addition to their regular callings

Nationals of sending state May or not be nationals of the

sending state

Ranks

1. Consul- general- heads several consular districts, or one exceptionally large

consular districts

2. Consul- takes charge of a small district or town port

3. Vice- consul- assists the consul

4. Consular agent- usually entrusted

PRIVELEGES AND IMMUNITIES ACCORDED TO DIPLOMATIC ENVOY

1. Inviolability of their correspondence, archives and other documents

2. Freedom of movement and travel

3. Immunity from jurisdiction for acts performed in official capacity

4. Exemption from certain taxes and customs duties

Immunities and privileges are also available to members of the consular

post their families and their private staff

Waiver of immunities may be by the appointing state

CASE: Liang vs. People, 323 SCRA 652 (2000)

32

FACTS: Petitioner is an economist for ADB who was charged by the Metropolitan Trial

Court of Mandaluyong city for allegedly uttering defamatory words against her fellow

worker with two counts of grave oral defamation. MeTC judge then received an office of

protocol from the Department of Foreign Affairs, stating that petitioner is covered by

immunity from legal process under section 45 of the agreement bet ADB and the

government. MeTC judge, without notice, dismissed the two criminal cases. Prosecution

filed writ of mandamus and certiorari and ordered the MeTC to enforce the warrant of

arrest.

ISSUES: Whether or not the petitioner is covered by immunity under the agreement and

that no preliminary investigation was held before the criminal cases were filed in court.

RULING: He is not covered by immunity because the commission of a crime

is part of the performance of official duty. Courts cannot blindly adhere

and take on its face the communication from the DFA that a certain person

is covered by immunity. That a person is covered by immunity is preliminary. Due

process is right of the accused as much as the prosecution.

Slandering a person is not covered by the agreement because our laws do

not allow the commission of a crime such as defamation in the name of

off icial duty. Under Vienna convention on Diplomatic Relations,

commission of a crime is not part of off icial duty.

On the contention that there was no preliminary investigation conducted, suffice it to

say that preliminary investigation is not a matter of right in cases cognizable by the

MeTC such as the one at bar. Being purely a statutory right, preliminary investigation

may be invoked only when specifically granted by law. The rule on criminal procedure is

clear than no preliminary investigation is required in cases falling within the jurisdiction

of the MeTC. Besides, the absence of preliminary investigation does not affect the

court’s jurisdiction nor does it impair the validity of the information or otherwise render

it

defective.

Extraterritoriality

Applies only to PERSONS and is based on treaty or convention credited

because of rise of nationalism and sovereign equality of states.

Exterritoriality

Exception of the PERSONS AND PROPERTY from local jurisdiction on

basis of international customs.

Treaty

An international agreement concluded between states in written

form and governed by international law whether embodied in a single

33

instrument or in two or more related instruments . (art. 2 Vienna Convention on

the Law of Treaties, 1969)

• Taiwan cannot enter into a treaty

REQUISITES OF A VALID TREATY

1. Entered into by parties having treaty-making capacity

2. Through their authorized organs or representatives

3. Without attendance of duress, fraud, mistake, or other vices of

consent

4. Lawful subject matter and object

5. Ratification in accordance with their respective constitutional

processes

CASE: Bayan vs Zamora G. R. No. 138570 Oct. 10, 2000

A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an

international instrument concluded between States in written form and

governed by international law, whether embodied in a single instrument or

in two or more related instruments, and whatever its particular

designation.”

Section 25, Article XVIII , which specifically deals with treaties

involving foreign military bases, troops or facil it ies, should apply in the

instant case.

The 1987 Philippine Constitution contains two provisions requiring the

concurrence of the Senate on treaties or international agreements. Sec. 21 Art. VII,

which respondent invokes reads: “No treaty or international agreement shall be

valid and effective unless concurred in by at least 2/3 of all the Members

of the Senate. Sec. 25 Art. XVIII provides: “After the expiration in 1991 of the

Agreement between the RP and the US concerning Military Bases, foreign military

bases, troops or facilities shall not be allowed in the Philippines except under a treaty

duly concurred in and when the Congress so requires, ratified by a majority of votes

cast by the people in a national referendum held for that purpose, and recognized as a

treaty by the Senate by the other contracting state”.

The first cited provision applies to any form of treaties and international

agreements in general with a wide variety of subject matter. All treaties and

international agreements entered into by the Philippines, regardless of subject matter,

coverage or particular designation requires the concurrence of the Senate to be valid

and effective.

In contrast, the second cited provision applies to treaties which involve presence

of foreign military bases, troops and facilities in the Philippines. Both constitutional

provisions share some common ground. The fact that the President referred the VFA to

the Senate under Sec. 21 Art. VII, and that Senate extended its concurrence under the

same provision is immaterial.

34

Q: VFA-concurred in by our senate but not by the US Senate

A: VFA still binding on its/ is still a binding treaty because it is not our

business to dwell into the domestic law of the other contracting party; we

are satisfied with the Senator’s pronouncement that the US wil l recognize

it.

Attentant Clause

Assassination of head of the State or any member of his family is not

regarded as political offence for purpose of extradition . Also applies to

genocide

STEPS IN TREATY MAKING PROCESS

1. Negotiation

Discussion of the provisions of the proposed treaty, undertaken by the

representatives of the contracting parties who are provided with credentials known as

full powers of PLENIS POUVIORS

2. Signature

Primarily intended as a means of authenticating the instrument and symbolizing

the good faith of the contracting parties.

Practice Aternat

Arrangement under which each negotiator is allowed to sign first on the

copy of the treaty which he will bring home to his own country , the purpose

being to preserve the formal appearance of equality among the

contracting states and to avoid delicate questions of precedence among

signatories.

3. Ratification

Act by which the state formally accepts the provisions of the treaty concluded by its

representatives.

4. Exchange of Instruments of ratifications

5. Registration with the UN

Concordat

A treaty or agreement between ecclesiastical and civil powers to regulate

the relations between the church and the state in those matters which, in some

respect are under the jurisdiction of both.

DOCTRINES IN TREATIES

Jus Cogens

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A jus cogens or peremptory is a norm which States cannot derogate

or deviate from in their agreements . It is a mandatory norm and stands on a

higher category than a jus dispotivum norm which States can set aside or modify by

agreement

A fiduciary Theory of Jus Cogens –Evan J. Criddle and Evan Fox Decent

CASE: Isabelita Vinuya vs. Executive Secretary Romulo

Held:

Certain types of cases often have been found to present political questions. One

such category involves questions of foreign relations. It is well-established that

"[t]he conduct of the foreign relations of our government is committed by

the Constitution to the executive and legislative--'the political '--

departments of the government, and the propriety of what may be done in

the exercise of this political power is not subject to judicial inquiry or

decision." The US Supreme Court has further cautioned that decisions relating to

foreign policy are delicate, complex, and involve large elements of prophecy. They are

and should be undertaken only by those directly responsible to the people whose

welfare they advance or imperil. They are decisions of a kind for which the Judiciary has

neither aptitude, facilities nor responsibility.

Pacta Sunt Servanda

It simply means that treaties must be observed in good faith despite

hardship on the contracting state, such as conflicts between the treaty

and its constitutions or prejudice to the national interst as a result of the

operation of the treaty.

As a general rule, a party must comply with the provisions of a treaty and cannot

ignore or modify it without the consent of the other signatory. Willful disregard or

violation of treaties without just cause is frowned upon by the society of nations.

Clausula Rebus Sic Stantibus

1. It applies only to treaties of indefinite duration

2. The vital change claimed as jurisdiction for the discontinuance of

the treaty must have been unforeseen or unforeseeable and must

not have been caused by the party invoking the doctrine

3. The doctrine must be invoked within a reasonbale time from the

occurrence of the change asserted.

4. The doctrine cannot operate retroactively upon the provisions of

the treaty executed prior to the change in circumstance (Salonga

and Yap, 310)

CASE: Fisheries jurisdiction Case- UK vs. Iceland

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Iceland claims that its agreement with the UK not to extend its fishereies

jurisdiction was no longer binding due to fundamental change of circumstances

Held:

For this to be a ground for invoking the termination of a treaty, it should have

resulted in a radical transformation of the extent of the obligations still to be performed.

The change must have increased the burden of the obligations to be

executed to the extent of rendering the performance something essentially

different from that originally undertaken.

This is not the case here, Iceland cannot validly invoke Rebus Sic Stantibus in

claiming the termination of the treaty.

Most Favored Nation Clause

Pledge made by a contracting party to a treaty to grant to other

party treatment not less favorable than that which had been given or may

be granted to the most favored among parties .

TERMINATION OF TREATIES

1. Expiration of term

2. Accomplishment of purpose

3. Impossibility of performance

4. Loss of subject matter

5. Desuetude

o Desistance of parties by express mutual consent or exercise of right of

renunciation when allowed.

6. Extinction of one parties; if treaty is bipartner

7. Novation

8. Occurrence of vital change of circumstance

9. Outbreak of war

10. Voidance of treaty because of:

a. Defect in constitution

b. Violation of its provision by one party

c. Incompatibility with International law

11. Application of the doctrine of the Rebus Sic Stantibus

12. The doctrine of Jus Cogens (or the emergence of a new preemptory norm of

general international law which renders void any existing treaty conflicting with

such norm)

Protocol de Cloture

An instrument which records the winding up of the proceedings of a diplomatic

conference and usually includes a reproduction of the contents of treaties, conventions,

37

recommendations and other acts agreed upon and signed by the plenipotentiaries

attending the conference. It is not the treaty and does not require the

concurrence of the senate. (Tanada vs. Angara)

NATIONALITY AND STATELESSNESS

Nationality

Membership on a political community with all its concomitant rights

and obligations. It is the tie that binds the individual to his state from

which he can claim protection and whose law he is obliged to obey

Citizenship

Membership in a political community which is personal and more or

less permanent in character

Doctrine of Effective Nationality

Expressed in Art. 5 of the Hague Convention of 1930 on the Conflict of

Nationality Laws that a person having more than one nationality shall be treated as if he

had only one- either the nationality of the country in which he is habitually and

principally resident or the nationality of the country with chich the circumstances he

appears to be in face most closely connected.

CASE: Frivaldo v. Comelec

That Nottebohm case is not relevant to the petition before us because it dealt

with a conflict between the nationality laws of two states as decided by a third state. No

third state is involved in the case at bar; in fact, even the United States is not actively

claiming Frivaldo as its national. The sole question presented to us is whether or not

Frivaldo is a citizen of the Philippines under our own laws, regardless of other

nationality laws. We can decide this question alone as sovereign of our own territory,

conformably to Section 1 of the said Convention providing that "it is for each State to

determine under its law who are its nationals."

Statelessness

Condition or statues of an individual who is born without any nationality or

who loses his nationality without retaining or acquiring another

De Jure Statelessness

It is where the exists no recognized state in respect of which the subject has

a legally meritorious basis to claim nationality

De Facto Statelessness

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It is where the subject may have a legally meritorious claim but is

precluded from asserting it because of practical considerations such as cost,

circumstances of civil disorder, or the fear of persecution

ALIENS

Definition

It is a person in a country who is not a citizen of the country

Treatment of Aliens

Flowing from its right to existence and as an attribute of sovereignty, no state

is under obligation to admit aliens . The state can determine in what cases and

under what conditions it may admit aliens.

1. The state has the Right to EXPEL aliens from its territory through:

a. Deportation

Expulsion of alien considered undesirable by the local

state, usually not necessarily to his own state

b. Reconduction

Forcible conveying of aliens back to their home state

without any formalities

2. The alien must accept the institutions of local states as he finds

them.

Doctrine of State Responsibil ity

State may be held liable for injuries and damages sustained by the

alien while in the territory of the state provided:

1. The act or omission constitutes an international delinquency

2. The act or omission is directly or indirectly imputable to the state

3. Injury to the claimant state indirectly because of damage to its

national

Calvo Clause

It is a stipulation by virtue of which an alien waives or restricts his

right to appeal to its own state in connection with any claim arising from a

contract with foreign state and limits himself to the remedies available under the

law of the state.

Drago Doctrine

In 1902, Great Britiain, Italy and Germany established a bloackade against

Venezuela in order to enforce certain contractual and other claims against it, leading

Foreign Minister Jose Maria Drago of Argentina to formulate the doctrine that “ a

public debt cannot give rise to the right of armed intervention”.

39

This principle was later adopted in the Second Hague Conference, but subject to

the qualitfication that the debtor state should not refuse or neglect to reply

to an offer of arbitration or after accepting the offer, prevent any

compromise from being upon, or after the arbitration, fail to submit to the

award. This qualif ication is known as the PORTER RESOLUTION

Refugees

A person who, owing to a well-founded fear of being persecuted for

treasons of race, religion, nationality, membership of a particular social

group or political opinion, is outside the country of his nationality , and is

unable or wing to such fear, is unwilling to avail himself of the protection of that

country; or who, not having a nationality and being outside the country of his former,

habitual residence, is unable or owing to such fear, is unwill ing to return to

it. (Convention Relating to the Status of Refugees, Art.1 a(2) ).

Non- refoulment

Prohibits state to return or expel a refugee to the territory where he

escaped because his life or freedom is threatened. The State is under

obligation to grant temporary asylum. (Refugee Convention of 1951)

Right of Asylum

Refuge in another state. Every foreign state can be at least a provisional asylum

for any individual, who being persecuted in his home State, goes to another state, in the

absence of any international treaty stipulating the contrary, no state is, by international

laws, obliged to refuse admission into its territory to such a fugitive or in case he has

been admitted, to expel him or deliver him up to the prosecuting state.

The right of asylum is not a right possessed by an alien to demand that a state

protect him and grant him asylum. At present, it is just a PRIVILEGE granted by a

state to allow an alien escaping from persecution of his country for

political reasons to remain and to grant him asylum.

Diplomatic Asylum

Refugee in another state for political offense, danger to l ife or no

assurance of due process

Extradition

The removal of an accused from the Phil ippines with the object of

placing him at the disposal of foreign authorities to enable the requesting

state or government to hold him in connection with any criminal

investigation directed against him or the execution of a penalty imposed

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on him under the penal or criminal law of the requesting state or

government (P.D. 1069, Sec 2 (a)).

Specialty and Double criminality :

Requirements for the exercise of extradition:

1 The Principle of speciality requires that the requesting state must specify the

crime under the extradition treaty for which the fugitive or accused is sought,

and that he is to be tried only for the offense specified in the treaty.

2 The principle of double criminality requires that an offense must be punishable

under the law of both the extraditing state and the requesting state for the

accused to be extradited.

GENERAL PRINCIPLES IN EXTRADITION

1 Basis: a TREATY based on consent of the parties

2 PRINCIPLE OF SPECIALTY

A fugitive who is extradited may be tried only for the crime specified in the

request for extradition and included in the list of offenses in the treaty

Non- List Type of Treaty

o Offenses punishable under the laws of both states by imprisonment

of 1 year or more are included among the extraditable

offenses(less than 1 year, can’t extradite)

3 Any person may be extradited, he NEED NOT BE A CITIZEN OF THE

DEMANDING STATE

4 Political and Religious offenders are GENERALLY NOT SUBJECT to

extradition

5 IN the absence of special agreement, offense must have been committed within

the TERRITORY OR AGAINST THE INTEREST OF THE DEMANDING

STATE.

CASE: Wright vs. CA

Australia and the Government of the Philippines in the suppression of crime,

entered into a Treaty of Extradition on the 7th of March 1988. The said treaty was

ratified in accordance with the provisions of Section 21, Article VII of the 1987

Constitution in a Resolution adopted by the Senate on September 10, 1990 and

became effective 30 days after both States notified each other in writing that the

respective requirements for the entry into force of the Treaty have been complied with.

Petitioner contends that the provision of the Treaty giving retroactive effect to the

extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI

of the Constitution.

ISSUE: Can an extradition treaty be applied retroactively?

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HELD:

YES, Applying the constitutional principle, the Court has held that

the prohibition applies only to criminal legislation which affects the

substantial rights of the accused. This being so, there is no absolutely no merit in

petitioner's contention that the ruling of the lower court sustaining the Treaty's

retroactive application with respect to offenses committed prior to the Treaty's coming

into force and effect, violates the Constitutional prohibition against ex post facto laws.

As the Court of Appeals correctly concluded, the Treaty is neither a piece of

criminal legislation nor a criminal procedural statute. It merely provides

for the extradition of persons wanted for prosecution of an offense or a

crime which offense or crime was already committed or consummated at

the time the treaty was ratif ied.

CASE: USA vs. Purganan

The ultimate purpose of extradition proceedings in court is only to

determine whether the extradition request complies with the Extradition

Treaty, and whether the person sought is extraditable.

The proceedings are intended merely to assist the requesting state in bringing the

accused -- or the fugitive who has illegally escaped -- back to its territory, so that the

criminal process may proceed therein.

By entering into an extradition treaty, the Philippines is deemed to have reposed its

trust in the reliability or soundness of the legal and judicial system of its treaty partner,

as well as in the ability and the willingness of the latter to grant basic rights to the

accused in the pending criminal case therein.

Extradition proceedings are not equivalent to a criminal case in which

guilt or innocence is determined. Consequently, an extradition case is not

one in which the constitutional rights of the accused are necessarily

available. It is more akin, if at all, to a court’s request to police authorities for the

arrest of the accused who is at large or has escaped detention or jumped bail. Having

once escaped the jurisdiction of the requesting state, the reasonable prima facie

presumption is that the person would escape again if given the opportunity.

General Rule:

Prospective extraditees not entitled to notice and hearing before

warrants for their arrest can be issued to the right to bail and provisional

liberty while the extradition proceedings are pending

Exception:

1. Once bail is granted, he will not be flight risk or danger to community

2. There exist special, humanitarian, and compelling circumstances

Principles on Extradition:

1. No State is obliged to to extradite unless there is a treaty

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2. Differences in legal system can be an obstacle to interpretation of what the

crime is

3. Religious and political offenses are not extraditable

Procedure is normally through diplomatic channels (how extradition rules can be

bypassed: US vs. Alvarez- Machain; how due process requirements work in an

extradition case: Secretary of Justice vs. Lantion; USA vs. Purganan and Crespo)

CASE: Hong Kong v. Olalia G.R. No. 153675

Facts:

The Philippines and Hong Kong signed an “Agreement for the Surrender of Accused

and Convicted Persons.”

Private respondent Muñoz was charged before the Hong Kong Court. Department of

Justice (DOJ) received from the Hong Kong Department of Justice a request for the

provisional arrest of private respondent

Muñoz. The DOJ then forwarded the request to the National Bureau of Investigation

(NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the

provisional arrest of private respondent. The NBI agents arrested and detained him.

Muñoz filed a petition for bail which was denied by Judge Bernardo, Jr. holding that

there is no Philippine law granting bail in extradition cases and that private respondent

is a high “flight risk.” After Judge Bernardo, Jr. inhibited himself from further hearing the

case, it was then raffled off to Branch 8 presided by respondent judge. Private

respondent filed a motion for reconsideration of the Order denying his application for

bail and this was granted by respondent judge.

ISSUE Whether or not the trial court committed grave abuse of discretion amounting to

lack or excess of jurisdiction in allowing private respondent to bail?

HELD

No, the trial court did not commit grave abuse of discretion amounting to lack

or excess of jurisdiction in allowing private respondent to bail.

Accordingly, although the time-honored principle of pacta sunt

servanda demands that the Phil ippines honor its obligations under the

Extradition Treaty it entered into with the Hong Kong Special

Administrative Region it does not necessarily mean that in keeping with its

treaty obligations, the Philippines should diminish a potential extraditee’s

rights to life, l iberty, and due process guaranteed by the Constitution.

More so, where these rights are guaranteed, not only by our Constitution, but also by

international conventions, particularly the Universal Declaration of Human Rights, to

which the Philippines is a party.

We should not, therefore, deprive an extraditee of his right to apply for bail,

provided that a certain standard for the grant is satisfactorily met. In his Separate

Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,

proposed that a new standard which he termed “clear and convincing evidence”

should be used in granting bail in extradition cases. According to him, this standard

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should be lower than proof beyond reasonable doubt but higher than preponderance

of evidence. The potential extraditee must prove by “clear and convincing evidence”

that he is not a flight risk and will abide with all the orders and processes of the

extradition court. In this case, there is no showing that private respondent presented

evidence to show that he is not a flight risk. Consequently, this case should be

remanded to the trial court to determine whether private respondent may be granted

bail on the basis of “clear and convincing evidence.

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to

determine whether private respondent is entitled to bail on the basis of “clear and

convincing evidence.” If not, the trial court should order the cancellation of his bail

bond and his immediate detention; and thereafter, conduct the extradition proceedings

with dispatch.

• Constitutional Provision on bail applies only in criminal proceeding, not to

extradition

Criminal Proceedings: Extradition proceedings:

-Full blown trial -Summary in nature

-proof beyond reasonable doubt - allow admission of evidence in a

less stringent standard

-judgment becomes executory upon

being final

-the President has discretion

rendered even though the court

deems it proper extraditable.

In extradition proceedings, it is not necessary that there be a prior hearing before

the accused is arrested. All that is necessary for the extradite to be arrested is

a prima facie finding by the judge that the petition for extradition and its

supporting documents that

1 They are sufficient in form and substance

2 they show compliance with the extradition treaty and law,

3 person sought is extraditable.

SETTLEMENT OF INTERNATIONAL DISPUTES

International Dispute

A dispute exists when one state claims that another state should behave in a

certain manner and that claim is rejected by the latter.

It is an actual disagreement between states regarding the conduct to be taken by

one of them for the protection or vindication of the interests of the other.

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PACIFIC or AMICABLE METHODS OF SETTLING DISPUTES

1. Negotiation

o Generally the 1st step taken in the settlement of international disputes, it

is nothing more than the discussion by the parties themselves of their

respective claims and counterclaims with a view to their just

and orderly adjustment.

o Process by which State settle their differences through an exchange of

views between diplomatic agencies.

2. Enquiry

o Act by which the facts material to the dispute are ascertained, established

and clarified by an impartial fact finding body towards the adjustment or

resolution of a dispute

3. Tender of Good Offices

o Method by which a 3rd party attempts to bring the disputing states

together in order that they may be able to discuss the issues in

contention

o This is usually employed when the protagonists are no longer “on

speaking terms”, that is, when they have served diplomatic relations or

have actually commenced hostilities.

4. Mediation

o A 3rd party does not merely provide the opportunity for the antagonists to

negotiate but also actively participates in their discussions in order to

reconcile their conflicting claims.

o Offers a solution; good offices merely bring parties together.

5. Conciliation

o Active participation of a 3rd party, whose services are solicited by the

disputants, in the effort to settle the conflict; but the conciliator’s

recommendations are not binding. (Shuttle diplomacy- back and forth to

the party)

6. Arbitration

o The solution of a dispute by an impartial 3rd party usually a tribunal

created by the parties themselves under a charter known as a

compromise

7. Judicial Settlement

o Similar to arbitration in the nature of the proceedings and in the binding

character of the award

o Judicial body is pre-existing

o Jurisdiction in judicial settlement is usually compulsory, and the law

applied by the judicial tribunal is independent of the will of the parties

o Judicial settlement of the international disputes is now lodged in the ICJ

(International Court of Justice)

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8. Resort to international (regional) Organizations

o The parties may, of their own volition, or at the instance of the

organization itself, assume the obligation of the settling the dispute.

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

1. Severance of Diplomatic Relations

2. Retorsion

a. Retaliation where acts complained of do not constitute legal ground of

offense but are rather in the nature of unfriendly acts done in pursuance

of a legitimate state interest but indirectly hurtful to other states.

b. Unfriendly, but lawful, coercive acts done in retaliation for unlawful

treatment and acts of discrimination of another state

i.e. the levy of high discriminatory tariffs on goods coming from the

other state

3. Reprisal

a. Unlawful acts taken by one state in retaliation for reciprocal unlawful acts

of another state.

b. Purpose: to bring the offending state to terms

c. These acts are essentially forcible and are taken only by strong states with

sufficient power to back up their demands.

FORM OF REPRISALS:

1. Freezing of the assets of the nationals of the other state

2. Embargo

a. The forcible detention or sequestration of the vessels and othe property

of the offending state

3. Pacific Blockade

a. The prevention of entry to or exit from the parts of the offending state of

means of communication and transportation

NOTE: this could violate the UN Charter

4. Non- Intercourse

a. Suspension of all intercourse with the offending state, particularly in

matters of trade and commerce

5. Boycott

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a. Concerted suspension of commercial relations with the offending state,

with particular reference to a refusal to purchase goods.

WAR

The law of War

Armed contention between public forcer of states or other belligerent

communities implying employment of force between parties for the purpose of

imposing their respective demands upon each other.

The Philippine renounces war as an instrument of national policy. (Art. 2 (2)

1987 Consti)

May exist even without the use of force, as when one state formally refuses to be

governed by the kinds of peace in its relations with another state even if actual hostiles

have not taken place between them.

SANCTIONS OF THE LAW OF WAR

The commonly accepted sanctions of the laws of war are the following:

1. Protest lodged by one belliegerent, usually accompanied or followed by an

appeal to world opinion, against unlawful acts of war committed by the other

belligerent.

2. Reparation for damages caused by the defeated belligerent.

3. Punishment of war criminals

Reprisal are often mentioned as a 4th sanction, but it is doubtful if they

can be justified under the UN Charter as they are essentially unlawful acts

taken by one state for the also illegal acts of the other belligerent.

COMMENCEMENT OF WAR:

1. With the declaration of war (Hague Convention of 1907)

2. With the rejection of an ultimatum (Hague Convention)

3. With the commission of an act of force regarded by one of the belligerent as an

act of war.

TERMINATION OF WAR:

1. Simple cessation of utilities

o Usually, the principle of the uti passidetis, with respect to properly and

territory possessed by the belligerents, is applied.

2. Conclusion of negated treaty of peace

3. Unilateral declaration by the victor

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o Defeat of one of the belligerents followed by a dictated treaty of peace, or

annexation of conquered territory

Jus Postl iminy

Right of Postliminum is the right by which “persons or things taken by the enemy

are restored to the former state on coming actually into the power of the nation to

which they belong”

Jus Postl iminum also signifies the reinstatement of the authority of

the displaced government once control of the enemy is lost over the

territory affected. Thus upon the end of a belligerent occupation, the laws of the re-

established government are revived and all the illegal acts of the belligerent occupant,

as well as its lawful acts of a political character, are invalidated.

Postliminum is the revival or reversion to the old laws and sovereignty of territory

which has been under belligerent occupant is lost over territory affected.

Uti Possidetis “As You Possess”

Allows retention of property or territory in the belligerent’s actual possession at

the cessation of the hostilities.

EFFECTS OF THE OUTBREAK OF WAR

1. The laws of peace cease to regulate the relations of the belligerents and are

superseded by the laws of war;

2. Diplomatic and consular relations between the belligerents are terminated, and

their respective representatives are allowed to return to their own countries;

3. Treaties of political nature, such as treaties of alliance, are automatically

concelled, but those which are precisely intended to operate during war, such as

one regulating the conduct of hostilities are activated.

4. Enemy public property found in the territory of other belligerent at the outbreak

of the hostilities is, with certain exceptions, subject to confiscation. Enemy

provate property may be sequestered, subject to return or reimbursement after

the war in accordance with the treaty of peace.

Combatants

Those who engage directly or indirectly in the hostilities

COMBATANTS MAY BE:

1. Non- privileged

a. Like spies, who, under false pretense try to obtain vital information from

the enemy ranks and who, when caught, are not considered prisoners of

war.

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b. Privileged combatants- military

2. Non- combatants

a. Those who do not engage in combat, such as women and children

b. Also includes medical personnel and chaplains

3. Prisoners of War

a. Any person captured or interned by a belligerent power during war. In the

strictest sense it is applied only to members of regularly organized armed

forces, but by broader definition it has also included guerrillas, civilians

who take up arms against an enemy openly, or non-combatants

associated with a military force

NEUTRALITY

Neutrality

It is the condition of a state that does not take part, directly or indirectly, in a war

between other states.

If recognized by the belligerents, this condition gives rise to rights and

obligations between them and the neutral state in their mutual relations

Neutralization

It is the result of a treaty wherein the conditions of the status are agreed upon by

the neutralized state and the other signatories.

NEUTRALITY NEUTRALIZATION

Dependent, on attitude of neutral state,

which is free to join either of belligerents

any time it sees fit.

Results of treaty wherein duration and other

conditions are agreed upon by neutralized

state and other states.

Governed by laws of nations Governed by neutralization by agreement

Obtains only during war Intended to operate in times of peace and

war

Only states may become neutral May apply to portions of the territory of the

state

e.g. islands, rivers and canals

Japan- Neutralized by German

Switzerland- neutral state world war 2

DUTIES OF A NEUTRAL STATE

1. Abstention

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a. To abstain from taking part in the hostilities and from giving assistance to

either belligerent

2. Prevention

a. To prevent its territory from being used by the belligerents in the conduct

of hostilities;

3. Acquiescence

a. To acquiescence in certain restrictions and limitations that the

belligerents may find necessary to impose, especially in connection with

international commerce

The Neutrality Act of 1794

• Made it illegal for an American to wage war against any country at peace with the

United States.

• The act also forbade foreign war vessels to outfit in American waters and set a

three mile territorial limit at sea

• “If any person shall within the territory or jurisdiction of the United States begin

or set on foot or provide or prepare the means for any military expedition or

enterprise...against the territory or dominions of any foreign prince or state of

whom the United States was at peace that person would be guilty of a

misdemeanour”

Blockade

A blockade is an effort to cut off food, supplies, war material or communications

from a particular area by force, either in part or totally.

Close patrol of the hostile ports, in order to prevent naval forces from putting to

sea, is also referred to as a blockade. When a coastal cities or fortresses were besieged

from the landward side, the besiegers would often blockade the seaward side as well.

Most recently, blockades have sometimes included cutting off electronic

communications by jamming radio signals and severing undersea cables.

Prize

• Prize is a term used in admiralty law to refer to equipment, vehicles, vessels,

and cargo captured during armed conflict. The most common use of prize in this

sense is the capture of an enemy ship and its cargo as a prize of war.

• In the past, it was common that the capturing force would be allotted a share of

the worth of the captured prize. Nations often granted letters of marque which

would entitle private parties to capture enemy property, usually ships.

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• Once the ship was secured on friendly territory, it would be made the subject of

a prize case, an in rem proceeding in which the court determined the status of

the condemned property and the manner in which it was to be disposed of.

Prize Court

• A prize court is a court (or even a single individual, such as an ambassador or

consul) authorized to consider whether or not a ship has been lawfully captured

or seized in time of war or under the terms of the seizing ship's letters of marque

and reprisal.

• A prize court may order the sale or destruction of the seized ship, and the

distribution of any proceeds to the captain and crew of the seizing ship. A prize

court may also order the return of a seized ship to its owners if the seizure was

unlawful, such as if seized from a country which had proclaimed its neutrality.

CONTRABAND

Contraband is enemy goods carried by vessels of neutral nations during wartime

that may be confiscated by a belligerent power and thus prohibited from delivery to the

enemy.

Traditionally, contraband is classified into two categories, absolute contraband

and conditional contraband. The former

Absolute contraband

• Category includes arms, munitions, and various materials, such as

chemicals and certain types of machinery that may be used directly to

wage war or be converted into instruments of war.

Conditional contraband

• Formerly known as occasional contraband, consists of such materials as

provisions and livestock feed. Cargo of this kind, while presumably

innocent in character, is subject to seizure if, in the opinion of the

belligerent nation that seizes them, the supplies are destined for the

armed forces of the enemy rather than for civilian use and consumption.

In former agreements among nations, certain other commodities,

including soap, paper, clocks, agricultural machinery and jewelry, have

been classified as non-contraband, although these distinctions have

proved meaningless in practice.

Doctrine of Ultimate Destination

Idea that shipments and ships going into the confederacy or any other place in

general that was under a blockade could be seized

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Doctrine of Ultimate Consumption

Goods intended for civilian use which may ultimately find their way and be

consumed by belligerent forces, may be seized on the way.

Right of Angary

Belligerent may upon payment of just compensation, seize, use or destroy, in

case of urgent necessity for purposes of offense or defense neutral property found in its

territory, in enemy territory or on high seas.

Right of Visitation

This is the right of belligerent vessels and aircraft to intercept and inspect

neutral merchant vessels on the high seas for the purpose of determining if they are in

any way connected with the hostilities.

e.g. carrying contraband, attempting to breach a bloackade, or engage in

unneutral service, in favour of the other belligerent

In time of war, there are relations between the belligerents that are not strictly hostile

1. Flag of Truce

a. It is a white flag carried by an individual authorized by one belligerent to

enter into communications with the other

2. Parlementaric

a. Bearer of flag

b. Entitled of inviolability as long as he does no take advantage of his

privileged position to commit an act of treachery

3. Cartels

a. Agreement to regulate intercourse during war on such matters as postal

and telegraphic communication, the reception of flags of truce and the

exchange of prisoners

b. Cartel Ship- Vessel sailing under a safe-conduct for the purpose of

carrying exchanged prisoner of war

4. Passport

a. Written permission given by the belligerent government on its authorized

agent to the subjects of the enemy state to travel generally in belligerent

territory

5. Safe-Conduct

a. A pass given to an enemy subject or an enemy vessel allowing passage

between defined points

i. Given by the belligerent government or the commander of the are

within which it is effective

6. Safe guard

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a. Protection granted by a command officer either to enemy persons or

property within his command extreme measure to fulfil their result

7. License to trade

a. Permission given by the competent authority to individuals to carry on

AXIS POWER

o Also known as the axis alliance, axis nations, axis countires, axis

o Began in 1936 with treaties of friendship between Germany and Italy and

between Germany and Japan

o Tribunal Pact (Germany, Italy and Japan)

ALLIES

o Opposed the axis power during WW2

o They became involved in WW2 either because they had already been invaded,

were directly threatened with invasion by the axis or because they were

concerned that the axis powers to control the world

RIGHT OF PRISONERS OF WAR

1. Information to be extracted

2. Seizure of religious articles

3. Proper burial

4. If wounded, must be repatriated

5. Seizure of personal belonging

• 25 crimes considered as Genocide

INTERNATIONAL CRIMINAL COURT (not part of UN)

International Criminal Court (ICC) International Court of Justice (ICJ)

• it is a criminal tribunal

• has criminal jurisdiction to

prosecute individuals

• it prosecutes individuals for

genocide, crimes against humanity,

war crimes and the crimes of

aggression

• it is independent of the United

nations

• it is a civil tribunal

• does not have criminal jurisdiction

over individuals

• it is a civil tribunal that deals

primarily with disputes between

States

• it is a principal organ of the United

Nations

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o A permanent tribunal to prosecute individuals for genocide, crimes against

humanity, war crimes, and the crime of aggression (although it cannot, until at

least 2017, exercise jurisdiction over the crime of aggression).

o founding treaty- the Rome Statute of the International Criminal Court

on July 17, 1998

o Entered into force on July 1, 2002

o As of July 2012, 121 states are states parties to the Statute of the Court

o The law of treaties obliges these states to refrain from “acts which would defeat

the object and purpose” of the treaty until they declare they do not intend to

become a party to the treaty.

o USA, CHINA and RUSSIA not members

o UN can refer a case to ICC

o ICC in Hague, Netherlands

o Language: English and French

The Rome Statute

The Rome Statute established the ICC which “shall have the power to exercise

its jurisdiction over persons for the most serious crimes of international concern x x x

and shall be complementary to the national criminal jurisdictions.” (Article I, Rome

Statute) Its jurisdiction covers the following crimes:

1. Genocide;

2. Crimes against humanity;

3. War crimes; and

4. Crime of aggression. (Article 5, Rome Statute)

General Principles:

1. Nullum crimen sine lege (Ex post Facto law)

2. Nullum poena sine lege (void for vagueness)

3. Double Jeopardy

4. Non-retroactivity

5. Principle of Superior Responsibility—a superior is held liable for failure to prevent

subordinates from committing unlawful acts, in view of his command and control over

them and liable as well for their crimes

6. Mens rea—material elements of a crime must be committed with intent and

knowledge

• No trial in absentia

• No reservations

• Penalties: Imprisonment—max of 30 years; no death penalty

• Principle of Complementarity—the ICC shall be complementary to national

criminal jurisdictions of states. It gives primacy over the duty of every State to

exercise its criminal jurisdiction over those responsible for international crimes.

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The Statute was opened for signature by all States in Rome on July 17, 1988 and

had remained open for signature until December 31, 2000 at the UN Headquarters in

New York. The Philippines signed the Statute on December 28, 2000 through Charge

d’ Affairs Enrique A. Manalo of the Philippine Mission to the UN. Its provisions, however,

require that it be subject to ratification, acceptance or approval of the signatory states.

(Article 25, Rome Statute)

Jurisdiction

1. It will not act as if a case is investigated or prosecuted by a national juridical

system unless the national proceedings are not genuine i.e. if formal

proceedings were undertaken surely to shield a person from criminal

responsibility

2. Only tries those accused of greatest crimes

a. It observes the highest standards of fairness and due process

3. Complementary to national courts which means that the court will only act when

countries themselves are unable or unwilling to investigate or prosecute.

4 ORGANS

Assembly of parties

o Composed of all members

o 121 member, Philippines a member as of 2011

o Established a TRUST FUND for the benefit of victims of crimes within the

jurisdiction of the court and the families of these victims

1. Presidency

a. 1 of the Judges

b. Song sang Hyun

o Responsible for the overall administration of the courts

o Exception:

Office of the prosecutor

Specific function assigned to presidency in accordance with the

statute

o Composed of 3 judges of the court

Elected to the Presidenct by their fellow judges

Term of office: 3 years

2. Judicial Division

a. 18 judges

b. 9 years term of office, no re-election

c. 3 Divisions

d. Qualifications

Supreme Court Qualification

Advance degree in M.B.A.

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Organized into the following:

Pre-trial Division

Trial Division

Appeal Division

• Judges of each division sit in chambers which are responsible for conduct of the

proceedings of the court at different stages

• Assignment of judges to division is made on the basis of the nature of the

funtions each divisions performs and the qualifications and experience of the

judge

• Done in a manner ensuring that a Division benefits from an appropriate

combination of experience in criminal law and procedure and international law.

3. Office of the Prosecutor

• Responsible for receiving referals and any substantiated information on crimes

within the jurisdiction of the court, for examining them and for conducting

investigations and prosecutions before the court

• Headed by: Fatou Bensouda

• Elected by the state parties

• Term of Office: 9 years

• Assisted by deputy prosecutor

o In charge of the prosecution division of the office of the prosecutor

4. Registry

a. Responsible for the non-judicial aspects of the administration and serving

of the court

• Headed by: Registrar

Principal administrative officer of the court

Exercises his function under the authority of the pres of the court

Elected by the judges

Term: 5 years

Current: Silvana Arbia

Who can Initiate proceedings?

• Proceedings before the ICC may be initiated by a state party, the prosecutor or

the UN Security Council

• The jurisdiction of the ICC is based on “complementarity” which allows national

courts the firm opportunity to investigate or prosecute

Just war/ Bellum sustum

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• A war was originally accepted as legitimate means of compulsion, provided,

according to some writers, that it was a reaction to an international delict

Outlawry of War

• All members are called upon to abstain from the use of force in the solution of

international differences and to sse to it that even non-members comply with its

declared principles “ so far as may be necessary for the maintenance of

international peace and security”

Conduct of the Hostil it ies

3 basic principles underlie the rules of warfare

1. Principle of Military Necessity

a. The belligerents may, subject to the other 2 principles, employ any

amount of force to compel the complete submission of the enemy with

the least possible loss on lives, time and money

i.e. bombing of Nagasaki and Hiroshima

2. Principle of Humanity

a. Prohibits the use of any measure that is not absolutely necessary for the

purposes of the war

i. i.e. poisoning of wells and weapons, expanding bullets and

asphyxiating gases

ii. Enemy vessel sunk- either belligerent must see to the safety of the

persons on board

iii. Wounded and sick- must be humanely treated without distinction

of nationality by the belligerent in whose power they are

3. Principle of Chivalry

a. Basis of such rules that require the belligerents to give proper warning

before launching a bombardment

Republic Act No. 9851, the new “Philippine Act on Crimes Against

International Humanitarian Law, Genocide, and Other Crimes Against

Humanity”

• Signed into law on 11 December 2009,

The most important features of R.A. No. 9851 might be outlined as follows:

• Defining and penalizing war crimes, genocide, and other crimes against

humanity.

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• Applicability to all individual perpetrators, whether state agents or non-state

actors (unlike the Anti-Torture Act which is limited to state-agent perpetrators).

• Applying certain international criminal law principles of irrelevance of official

capacity (for immunities), responsibility of superiors (i.e. command

responsibility), unlawful superior orders, and non-prescription, among others.

• Instituting a form of universal jurisdiction, albeit qualified.

• Providing for international standards for protection of victims and witnesses, as

well as reparations to the former.

• Express applicability of international law, including of specific international

treaties.

• Providing for the designation of special courts, prosecutors and investigators,

and their effective training in human rights, IHL and international criminal law.

• No requirement of implementing rules and regulations (unlike the Anti-Torture

Act)

Basically, war crimes are serious violations of the protection that should be

accorded to civilians or non-combatants during armed conflict, as well as serious

violations of the established limitations on the methods and means of warfare, for the

benefit also of the combatants.

“attack directed against any civil ian population”

An “attack directed against any civilian population” is defined [Sec. 3(e)] under

R.A. No. 9851 as “a course of conduct involving the multiple commission of acts

referred to in Section 6 of this Act against any civilian population, pursuant to or in

furtherance of a State or organizational policy to commit such attack.” Note “multiple

commission of acts referred to” and “pursuant to or in furtherance of a State or

organizational policy.” The latter clearly indicates that this could be perpetrated by a

non-state armed group. And the attack must be “widespread or [NOT and] systematic”

to make this a crime against humanity. As already indicated early on above, something

like the “Maguindanao Massacre” — involving multiple willful killing as part of a

systematic pre-planned attack directed by Ampatuan clan leaders (who were also

public officials) against a group of civilians led by rival Mangudadatu clan members –

can be characterized as a crime against humanity.

R.A. No. 9851 quite significantly provides for command responsibility as an

operative principle of criminal liability for the first time on the level of a national statute

through a provision on responsibility of superiors [Sec. 10], thus: “a superior shall be

criminally responsible as a principle for such crimes committed by subordinates under

his/her effective command and control, or effective authority and control as the case

may be, as a result of his/her failure to properly exercise control over such

subordinates, where:

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(a) The superior either knew or, owing to the circumstances at the time, should have

known that the subordinates were committing or about to commit such crimes; and

(b) The superior failed to take all necessary and reasonable measures within his/her

power to prevent or repress their commission or to submit the matter to the competent

authorities for investigation and prosecution.”

Applicability of International Law

R.A. No. 9851 provides that in its application and interpretation, Philippine courts shall

be guided by the following international law sources [Sec. 15]:

(a) The 1948 Genocide Convention;

(b) The 1949 Geneva Conventions I-IV, their 1977 Additional Protocols I and II and

their 2005 Additional Protocol III;

(c) The 1954 Hague Convention for the Protection of Cultural Property in the Event of

Armed Conflict, its First Protocol and its 1999 Second Protocol;

(d) The 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on

the Involvement of Children in Armed Conflict;

(e) The rules and principles of customary international law;

(f) The judicial decisions of international courts and tribunals;

(g) Relevant and applicable international human rights instruments;

(h) Other relevant international treaties and conventions ratified or acceded to by the

Republic of the Philippines; and

(i) Teachings of the most highly qualified publicists and authoritative commentaries on

the foregoing sources as subsidiary means for the determination of rules of

international law.

Special Courts, Prosecutors, Investigators, and Training

Under R.A. No. 9851 [Sec. 18], the Regional Trial Courts shall have original and

exclusive jurisdiction over the international crimes punishable under this Act. The

Supreme Court shall designate special courts to try cases involving crimes punishable

under this Act. For these cases, the Commission on Human Rights, the Department of

Justice, the Philippine National Police or other concerned law enforcement agencies

shall designate prosecutors and investigators to investigate as the case may be. Just as

significant, the State shall ensure that judges, prosecutors and investigators, especially

those designated for purposes of this Act, receive effective training in human rights,

international humanitarian law and international criminal law.

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