Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Chapter 1
GENERAL PRINCIPLES
What is International Law?
Traditional:
That branch of public law which regulates the relations of states and of
other entities which have been granted international personality.
[Schwarzenberger, p.1]
Modern:
That law that deals with the conduct of States and international
organizations, their relations with each other and, in certain circumstances,
their relation with persons, natural or juridical. [American Third
Restatement]
Incorporation v. Transformation
Doctrine of Incorporation: It is a universally accepted postulate that, with
or without an express declaration to this effect, states admitted to the
family of nations are bound by the rules prescribed by it for the regulation
of international intercourse. By this doctrine, international law is binding ex
proprio vigore (by its own force).
Doctrine of Transformation: The generally-accepted rules of international
law are not per se binding upon the state but must first be embodied in
legislation enacted by the lawmaking body and so transformed into
municipal law.
In the Philippines, what doctrine is being followed?
The doctrine of incorporation as expressed in Sec. 2, Art. II, 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 [underscored is the socalled incorporation clause]
Indeed, the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war.
And, in the language of a writer, a military commission has jurisdiction so
long as a technical state of war continues. This includes the period of an
armistice, or military occupation, up to the effective date of a treaty
agreement. (Cowles, Trial of War Criminals by Military Tribunals, American
Bar Association Journal, June, 1944)
Kuroda
v.
Jalandoni,
G.R. No. L-2662, March 28, 1949
Held:
Petitioner argues that respondent Military Commission has no jurisdiction
to try petitioner for acts committed in violation of the Hague Convention
and the Geneva Convention because the Philippines is not a signatory to
the first and signed the second only in 1947.
It cannot be denied that the rules and regulations of the Hague and Geneva
conventions from part of and are wholly based on the generally accepted
principles of international law.
In fact, these rules and principles were accepted by the two belligerent
nations, the United States and Japan, who were signatories to the two
Conventions.
Such rules and principles, therefore, form part of the law of our nation
even if the Philippines was not a signatory to the conventions embodying
them, for our Constitution has been deliberately general and extensive in
its scope and is not confined to the recognition of rules and principles of
international law as contained in treaties to which our government may
have been or shall be a signatory.
Co Kim Chan v. Valdez Tan Keh, G.R. No. L-5, Sept. 17, 1945
On the contention that MacArthurs Proclamation issued on October 23,
1944 invalidated all judicial proceedings during the Japanese occupation, it
was
Held: Taking into consideration the fact that according to a well-known
principle of international law, all judgments and judicial proceedings which
are not of a political complexion of the de facto government during the
Japanese military remained so after the occupied territory had come again
into the power of the titular sovereign, it should be presumed that it was
not and could not have been the intention of General MacArthur, in using
the phrase processes of any other government in said proclamation, to
refer to judicial processes, in violation of said principle in international law.
Yamashita
v.
Gen.
Styer,
G.R. No. L-129
Held:
War is not ended simply because hostilities have ceased. After cessation of
armed hostilities, incidents of war may remain pending which should be
disposed of as in time of war.
An important incident to a conduct of war is the adoption of measures by
the military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measures those enemies who in their
attempt to thwart or impede our military effort have violated the law of
war. (Ex parte Quirin, 317 U.S. 1, 63 Sup. Ct. 2)
The Retail Trade Nationalization Law prevails over the Treaty of Amity with
China and the Universal Declaration of Human Rights because the law was
passed in the exercise of police power of the State, and police power
cannot be bargained away through the medium of a treaty or a contract
Gonzales
v.
Hechanova,
G.R. L-21897, Oct. 22, 1963
On the validity of the executive agreement signed by the President for
importation of rice from Burma and Vietnam without first securing from
the National Economic Council the requisite certification, it was:
Held:
Although the President may, under the American constitutional system,
enter into executive agreements without previous legislative authority, he
may not, by executive agreements, enter into a transaction which is
prohibited by statutes enacted prior thereto.
Tanada
v.
Angara,
G.R. 118295, May 2, 1997
Held:
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.
In the foregoing treaties, the Philippines has effectively agreed to limit the
exercise of its sovereign powers of taxation, eminent domain and police
power.
Decision of Courts
Most authoritative are those rendered by ICJ of the Hague;
Decisions from other international tribunals or arbitration bodies and even
national tribunals may be resorted to provided they show correct
application and interpretation of the law of nations;
1.
a.
b.
c.
Writings of Publicists
Must be fair and unbiased representation of international law ; and
Author must be an acknowledged authority in the field.
Mere credentials are insufficient as author may have been motivated by:
National pride or interest; or
Error in interpreting a rule in international law; or
In supposing the existence of a rule which does not in fact form part of the
law of the nations.
Art. 38, Statute of the ICJ
The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
international custom, as evidenced of a general practice accepted as law;
the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teaching of
the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
2. This prohibition shall not prejudice the power of the Court to decide a case
ex aequo et bono (what is good and just), if the parties agree thereto.
Interpretation of Art. 38, ICJ
Although the provision is silent on the question of whether the three
primary sources have the same hierarchic value, by practice, treaties take
precedence over customs, and customs over general principles of law.
Exception: Principle of Jus Cogens.
Principle of Jus Cogens
Customary international law which has the status of a peremptory (i.e.,
absolute, uncompromising, certain) norm in international law cannot be
permitted to be derogated.
Peremptory norm is a norm accepted and recognized by the international
community of states as a rule, from which no derogation is permitted.
Examples: slave trade, piracy, terrorism, human rights
Chapter 3, 4 & 5
INTERNATIONAL COMMUNITY, THE UN & CONCEPT OF STATE
Subject v. Object
A Subject is an entity that has rights and responsibilities under
international law. It has an international personality; it can be a proper
party in transactions involving the application of the law of nations among
members of the international community.
An Object is a person or thing in respect of which rights are held and
obligations assumed by the subject. It is not directly governed by the rules
of international law. Its rights are received, and its responsibilities imposed,
indirectly through the instrumentality of an international agency.
Elements of a State
People: They must be a group of individuals, of both sexes, living together
as a community. They must be sufficient in number to maintain and
perpetuate themselves. Casual gathering of people being stranded or a
community of pirates cannot constitute a state.
Territory: That fixed portion on the earths surface occupied of the
inhabitants. It may be as large as Russia or as small as Monaco with just 0.5
square mile in area or San Marino with just 38 square miles in area.
but only the usual sanctions furnished thereby; and there is no obligation
on the part of the neutral state to maintain its attitude of neutrality.
Dependent States
A legal oxymoron as statehood implies idea of independence.
Considering their number and for want for better term, they are called as
such.
They are states subject to control by other states in their external affairs.
Two categories: Protectorate & Suzerainty
Protectorate
In the American sense: A state whose complete independence is limited by
the control of another,
In its international sense: Originally means a state placed under the
protection of another state by virtue of a treaty arrangement. Lately, refers
to the territory of a country which although not a state in the strict
international sense, remains nonetheless independent.
10
Conceived the idea of forming the Security Council composed of the (5)
conferees plus France as its permanent members.
Preamble
DETERMINED:
To save succeeding generations from the scourge of war;
To reaffirm faith in fundamental human rights, in the dignity and worth of
the human person, in the equal rights of men and women and of nations
large and small, and to establish conditions under which justice and respect
for the obligations arising from treaties and other sources of international
law can be maintained; and
To promote social progress and better standards of life in larger freedom,
AND FOR THESE ENDS:
To practice tolerance and live together in peace with one another as good
neighbors, and
To unite our strength to maintain international peace and security, and
To ensure, by the acceptance of principles and the institution of methods
that armed force shall not be used, save in the common interest, and
To employ international machinery for the promotion of the economic and
social advancement of all peoples,
HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS:
Accordingly, our respective Governments, through representatives
assembled in the City of San Francisco, who have exhibited their full
powers found to be in good and due form, have agreed to the present
Charter of the United Nations and do hereby establish an international
organization known as the United Nations.
Purposes of the UN
11
Suspension of UN Members
2/3 vote of those present and voting in the General Assembly;
Expulsion of UN Members
Must have persistently violated the principles in the Charter;
By 2/3 vote of those present and voting in the General Assembly;
Upon recommendation by the Security Council by qualified majority;
a.
b.
c.
d.
1.
2.
3.
4.
5.
6.
Withdrawal of Members
No express provision;
But according to authorities in IL, a member may withdraw if:
The UN was revealed to be unable to maintain peace or could do so only at
the expense of law and justice;
The members rights and obligations as such were changed by a Charter
amendment in which it had not concurred or which it finds itself unable to
accept; or
An amendment duly accepted by the necessary majority either in the
General Assembly or in a general conference is not ratified.
Only one instance of withdrawal: Indonesia in 1965 but resumed its seat
after the overthrow of Sukarno.
Six (6) Principal Organs of the UN
General Assembly
The Security Council
The Economic and Social Council
The Trusteeship Council
The International Court of Justice
The Secretariat
The General Assembly
Consists of all members;
Each member entitled to not more than five (5) representatives with five
(5) alternates;
12
Collaborative with:
International Monetary Fund; and
International Trade Commission
14
Example: India when still colony of Great Britain was allowed membership
in the League of Nations and signed as charter member of the UN. The
Philippines also while still colony of the US.
Colony a dependent political community consisting of a number of
citizens of the same country who have migrated therefrom to inhabit
another country.
Dependency a territory distinct from the country in which the supreme
sovereign power resides, but belongs rightfully to it, and subject to the
laws and regulations which the sovereign may prescribe.
Mandates and Trust Territories
Mandates are former territorial possession of states defeated in World
War I and placed under the control of the League of Nations. Many of the
mandates became Trust Territories placed under the Trusteeship Council of
the UN.
Trust Territories those territories placed under the Trusteeship Council.
Three Types of Trust Territories: a) Those held under mandate under the
League of Nations, b) Those territories detached from the defeated states
after World War II; and c) Those voluntarily placed under the system by the
states responsible for their administration.
Note: Any lacking requisite will make the struggle merely an insurgency
without any legal personality in international law.
Individuals
Traditionally, only considered as objects. But presently, a number of
international agreements grant a certain degree of international
personality to individuals.
15
Examples:
UN Charter provision on faith in fundamental human rights, dignity and
worth of the human person, and in the equal rights of men and women;
Universal Declaration of Human Rights provision on the inherent dignity
and the equal and inalienable rights of all members of the human family;
Extinguishment of a State
Merger
Dissolution
Deprivation of freedom to direct its external affairs leading to partial loss of
international personality;
Radical impairment or actual loss in one or more of its essential elements
(ex. Extermination or En masse emigration of the populace)
Succession of States
Rule: The change in the government of a state, the number of its people or
its area does not affect its international personality, unless such change in
the number of people or area is such as to make it impossible to maintain
the state.
16
The state remains as a person in international law, with all its rights and
obligations.
Extinguishment of a State
Disappearance of one or more of the essential elements;
Annexation, whether voluntary or forcible, into another state;
Division into two or more states; and
Incorporation into a federal union.
State Succession Defined
Means the substitution of one state for another, the former assuming the
rights and obligation of the latter. It may be universal or partial succession.
It arises in the event a state is extinguished or created under the modes
already discussed.
17
18
The political laws of the former sovereign are automatically abrogated and
may be restored only by a positive act on the part of the new sovereign.
However, non-political laws, such as those dealing with familial relations,
are deemed continued unless they are changed by the new sovereign or
are contrary to the institutions of the successor state.
SUCCESSION OF GOVERNMENTS
Integrity of the state is not affected.
It continues as the same international person, except only that its lawful
representative is changed.
Rights of the predecessor government are inherited in toto by the
successor government.
Obligations are assumed, if the new government was organized
constitutionally. Otherwise, purely personal or political obligations of the
predecessor government may be rejected.
U.S. (For GeorgeW. Hopkins) v. Mexico [1927]
Held:
Debts incurred by the old government for the purchase of military
equipment used against the new government may be disowned.
On the other hand, postal money orders purchased from the old
government in the ordinary course of business must be honored by the
new government.
Chapter 6
RECOGNITION
Recognition Defined
It is an act by which a state acknowledges the existence of:
Another state;
A government; or
A belligerent community
Indicating its willingness to deal with the entity as such under the rules of
international law.
Theories on Recognition
Declaratory That recognition merely affirms an existing fact such as the
possession by the state of all its essential elements, and that it may be
granted or withheld at pleasure.
Constitutive That recognition is compulsory or legal and that it is the very
act of recognition that constitutes the recognized entity into an
international person and that such act may be compelled once the
elements of international personality are established.
Power to Recognize
Under Art. VII of the 1987 Constitution, it is the President who is given the
authority to send and receive diplomatic representatives, to enter into
treaties, to establish blockades, and in general to act as the foreign policy
spokesman of the nation.
Forms of Recognition
Express: By way of formal proclamation or announcement, whether verbal
or in writing, and through a stipulation in a treaty, a letter or on the
occasion of an official call or conference.
Implied: When recognizing state and recognized state enter into a treaty
regulating their relationship in general or when they exchange diplomatic
representatives. In case of a belligerent community: when it blockades a
port held by the recognized belligerent or by observing neutrality in the
conflict.
Recognition of States
A free act of a state by which it acknowledges the existence on a definite
territory of a human society politically organized, independent of any
existing state, and capable of observing the obligations of international law,
and by which they manifest therefore their intention to consider it a
member of the international community.
Recognition of Governments
19
Stimson
Tobar-Wilson Doctrine
A doctrine that precludes recognition of any government established by
revolution, civil war, coup d etat or other forms of internal violence until
the freely elected representatives of the people have organized a
constitutional government.
Stimson Doctrine
Precludes the recognition of any government established as a result of
external aggression.
Formulated by US Secretary of State Stimson in 1932.
Estrada Doctrine
The diplomatic representatives in a country where a political upheaval has
taken place will deal or will not deal with whatever government is in
control at the time and either action shall not be taken as a judgment on
the legitimacy of the said government.
During the course of the trial, the U.S. Government recognized the
Carranza Government as a de facto government on October 19, 1915 and
later on August 31, 1917 as the de jure government of Mexico.
Held:
When a government which originates in revolution or revolt is recognized
by the political department of the government as the de jure government
of the country in which it is established, such recognition is RETROACTIVE
in effect and validates all the actions and conduct of the government so
recognized from the commencement of its existence.
That the conduct of one independent government cannot be successfully
questioned in the courts of another for to permit the validity of the acts of
one sovereign state to be re-examined and perhaps condemned by the
courts of another would very certainly imperil the amicable relations
between the governments and the peace of nations.
The seizing and selling of the hides in question was an action of the
legitimate Mexican government when dealing with a Mexican citizen, and
upon soundest reasons, was not subject to re-examination and
modification by the courts.
Underhill v. Hernandez,168 U.S. 250
Facts:
In the course of a revolution in 1892 against the administration in
Venezuela, General Hernandez, supporting the anti administration forces
under the leadership of Crespo, entered Bolivar and assumed control over
the city as its civil and military chief.
Underhill was US citizen who constructed a waterworks system for the city
of Bolivar under a contract with the government and was engaged in
supplying the city with water.
21
The Plaintiff concededly has not been so recognized. There is, therefore, no
proper party before us.
Recognition, and consequently, the existence of comity, is purely for the
determination of the legislative or executive department of the
government. Who is the sovereign of a territory is a POLITICAL QUESTION.
Held:
The acts complained of were the acts of a military government
representing the authority of the revolutionary party as a government,
which afterwards succeeded, and was recognized by the US.
In the case of a civil war, it the party seeking to dislodge the existing
government succeeds, and the independence of the government it has set
up is recognized, the acts of such government, from the commencement of
its existence, are regarded as those of an independent nation.
Every sovereign state is bound to respect the independence of every other
sovereign state. The court of one country will not sit in judgment on the
acts of another, done within its territory. Redress of grievances by reason
of such acts must be obtained through the means open to be availed of by
sovereign powers as between themselves.
In either case, to do so would vex the peace of nations; the hands of the
sate department would be tied.
Unwillingly it would find itself involved in disputes it might think unwise.
Such is not the proper method of redress if a citizen of the US is wronged.
The question is a POLITICAL ONE, not confided to the courts but to another
department of the government.
Existence of Belligerency
A belligerency exists when the inhabitants of a state rise up in arms for the
purpose of overthrowing the legitimate government.
Distinguished from insurgency:
22
Conditions:
There must be an organized civil government directing the rebel forces;
The rebels must occupy a substantial portion of the territory of the state;
The conflict between the legitimate government and the rebels must be
serious, making the outcome uncertain; and
The rebels must be willing and able to observe the laws of war.
Consequences of Recognition of Belligerency
When recognition is extended by the parent state:
The Belligerent community is considered a separate state for purposes of
the conflict.
Their relations shall be governed by the laws of war and their relations with
other states governed by the laws of neutrality.
Troops of either belligerent, when captured, shall be treated as prisoners
of war.
The parent state shall no longer be liable for any damage that may be
caused to third states by the rebel government.
Both belligerents can exercise the right of visit and search upon neutral
merchant vessels.
The rebel government is accorded full war status (same with the legitimate
government) as regards all other states. It may establish blockades,
maintain prize courts and take other allowable war measures
rd
Chapter 7
RIGHT OF EXISTENCE AND SELF-DEFENSE
Art. 51, UN Charter: Nothing in the present Charter shall impair the
inherent right of individual or collective self-defense if any armed attack
occurs against a member of the UN, until the Security Council has taken the
measure necessary for the maintenance for the maintenance of
international peace.
Right of existence and self-defense is the most comprehensive of all other
rights of a state, as the latter accordingly flow from it.
Equity was entirely opposed to the idea that the possibility of being
attacked gives us the right to attack on our part;
It was only when there was just ground war on other counts that the
growing strength of a rival might properly influence a decision to go to war.
In the exercise of this inherent right, the state may take such measures,
including the use of force, as may be necessary to counteract any danger to
its existence.
25
26
27
OAS Charter: Every American state has the duty to respect the rights
enjoyed by other states in accordance with international law.
Territory Defined
A fixed portion of the surface of the earth inhabited by the people of the
state.
The territory must be permanent and indicated with precision since the
limits generally define the jurisdiction of the state.
Manifestations of Equality
Each state is entitled to one vote in international conferences.
In signing of international documents, the principle of alternat is followed.
In alternat, each power occupies the first place in the list of signatures in
the copy which it receives.
Acquisition of Territory
By discovery and occupation
By prescription
By cession
By subjugation
By accretion
Loss of Territory
By abandonment or dreliction
By cession
By subjugation
By prescription
By erosion
By revolution
By natural causes
Factual inequality
Non-procedural questions in the Security Council being decided by the Big
Five through the use of veto power under the Yalta Formula. Also to
ratification of any proposal to amend the UN Charter.
28
island since the 18 century and when the alleged cession was made on
Dec. 10, 1898.
Held:
Discovery alone, without any subsequent act, cannot at the present time
suffice to prove sovereignty over the Island.
Even admitting that the Spanish title still existed as inchoate in 1898 and
must be considered as included in the cession under Article III of the Treaty
of Paris, an inchoate title could not prevail over the continuous and
peaceful display of authority by another state for such display may prevail
even over a prior, definitive title put forward by another state.
The Clipperton Island Case
(26 A.J.I.L. 390.1932)
Facts:
A French Navy Lieutenant while cruising about one-half mile off Clipperton,
drew up, on board the commercial vessel LAdmiral, an act by which,
conformably to the orders given him by the Minister of Maine, proclaimed
and declared sovereignty over the island beginning from that date to
belong in perpetuity to His Majesty the Emperor, Napoleon III, and to his
heirs and successors.
Thereafter, the vessel put off without leaving in the island any sign of
sovereignty.
The island was found to be terra nullius at that time.
Mexico later claimed the territory in 1897.
Held:
If a territory, by virtue of the fact that it was completely uninhabited, is,
from the first moment when the occupying state makes its appearance
29
there, at the absolute and undisputed possession of that state, from that
moment the taking of possession is considered accomplished and the
occupation is formally completed.
Dereliction
A territory is lost by dereliction when the state exercising sovereignty over
it:
Physically withdraws from it;
With the intention of abandoning it altogether.
Prescription
It is a derivative mode of acquisition.
Transfer of sovereignty is due adverse and uninterrupted possession for
sufficiently long period of time.
There is no fixed rule as to the length of time needed.
Cession
Another derivative mode in the acquisition of territory.
A territory belong to one state is transferred to the sovereignty of another
by virtue of an agreement between them.
It is consensual.
Transfer of title effected upon the meeting of the minds of the parties.
Examples of Cession:
Purchase by the US of Alaska from Russia in 1867.
Gift by Austria of Lombardy to France in 1859.
Exchange between Great Britain and Germany of the island of Helgoland
and the territory adjoining German East Africa in 1890.
Treaty of Paris ceding the Philippines from Spain to the US on Dec. 10,
1898.
Cession of Korea to Japan under a treaty concluded between them on
August 22, 1910.
Subjugation
Also a derivate mode of acquisition.
Terrestrial Domain
The land mass on which the people live.
It may be integrate, as in the case of Iran; or
Dismembered, as in the case of the US; or
Partly bounded by water, like Burma; or
Completely surrounded by water, like Iceland; or
Consist of several islands, like the Phils.
Maritime and Fluvial Domain
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 land-locked lakes, rivers,
man-made canals, the waters in certain gulfs, bays and straits, and the
territorial sea.
Internal Waters
30
Bays
A bay is a well-marked indentation whose penetration is in such proportion
to the width of its mouth as to contain land-locked waters and constitute
more than a mere curvature of the coast.
Rivers
National (e.g., Pasig River)
Multi-national (e.g. Mekong River, Congo River, Nile River)
International (e.g., Rhine River, Danube River)
Boundary (e.g., St. Lawrence River between the US and Canada)
If the distance between the low-water marks of the natural entrance points
of a bay exceeds 24 NM, a closing line may be drawn between these two
low-water marks and the waters enclosed thereby will be considered
internal waters.
If flowing through two or more states Each state has jurisdiction over that
portion within its boundaries.
If two states have jurisdiction over opposite banks The middle of the
main channel, if navigable, is the boundary; if non-navigable, the middle of
the river itself.
Thalweg Doctrine
In the absence of a specific agreement between riparian states, the
boundary line is laid on the MIDDLE OF THE MAIN NAVIGABLE CHANNEL.
When the boundary river changes its course by gradual and normal
process, e.g. accretion or erosion, the dividing line follows the new course.
If deviation is violent and abrupt, e.g. avulsion, the boundary line shall still
be on the old river bed.
Unless there is agreement between riparian states, the dividing line on a
bridge across the boundary river shall be on the middle of the bridge
regardless of the location of the channel underneath.
Historic Bays
These are bays whose waters are considered internal but which should not
have that character were it not for the existence of a historic title.
Examples: Bay of Cancale in France, Bay of El Arab in Egypt, Chesapeake
Bay in the US, Hudson Bay in Canada and Zuyder Zee in Holland.
Character of waters in a Strait
A strait is a comparatively narrow passageway connecting two large bodies
of water.
Where the distance between the opposite coasts is not more 6 NM, the
waters in the strait are considered territorial, subject to right of innocent
passage.
In case the two shores are owned by different state Jurisdiction of each
littoral state extends up to the middle of the most navigable channel.
31
Territorial Sea
The belt of waters adjacent to the coast of the state, excluding the internal
waters in bays and gulfs, over which the state claims sovereignty and
jurisdiction.
12 NM from the low-water mark of the coast or baseline.
Treaty between the US and UK, Jan. 2, 1930 ceding Turtle Islands and
Mangsee Islands.
1935 Phil. Constitution claiming Batanes Islands.
Under the straight baseline method, straight line are made to connect
appropriate points on the coast without departing radically from its general
direction. The waters inside these lines are considered internal. (Art. 5,
UNCLOS)
National Territory of the Phils.
Comprises the Philippine archipelago, with all the islands and waters
embraced therein; and
All other territories over which the Philippines has sovereignty or
jurisdiction;
Consisting of its terrestrial, fluvial and aerial domain;
Including its territorial sea, the seabed, the subsoil, the insular shelves, and
other submarine areas.
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 (Archipelagic Doctrine).
32
90-km above earth: Based on the lowest altitude for artificial earth
satellites to orbit without being destroyed by friction.
84-km above earth: Based on the theoretical limits of air flights.
Functional Approach: Based on the nature of the activity undertaken.
Chapter 11
RIGHT OF JURISDICTION
Jurisdiction Defined
It is the authority exercised by a state over persons and things within or
outside its territory, subject to certain exceptions.
The above provisions do not affect the right of the coastal State to take any
steps authorized by its laws for the purpose of an arrest or investigation on
board a foreign ship passing through the territorial sea after leaving
internal waters.
Foreign merchant vessel: Local state exercises full civil jurisdiction. But
criminal jurisdiction may or may not be asserted based on the English or
French Rule.
French Rule: The flag state has jurisdiction over all offenses committed on
board its merchant vessels unless such crimes are of such a grave nature as
34
Contiguous Zone
The waters beyond the territorial sea but not in excess of twelve miles from
the outer limits of the territorial sea over which the coastal state exercises
a PROTECTIVE JURISDICTION.
To prevent infringement of its customs, fiscal, immigration or sanitary
regulations
Continental Shelf (Art. 76, UNCLOS)
Comprises the sea-bed and subsoil of the submarine areas that extend
beyond its territorial sea throughout the natural prolongation of its land
It does not include the deep ocean floor with its oceanic ridges or the
subsoil thereof.
Coastal State shall establish the outer edge of the continental margin
wherever the margin extends beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured, by either:
a line delineated in accordance with paragraph 7 by reference to the
outermost fixed points at each of which the thickness of sedimentary rocks
is at least 1 per cent of the shortest distance from such point to the foot of
the continental slope; or
a line delineated in accordance with paragraph 7 by reference to fixed
points not more than 60 nautical miles from the foot of the continental
slope.
Patrimonial Sea (EEZ)
The expanse of sea extending 200 NM from the coast 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.
35
No state can take jurisdiction over any other than its own ship upon the
high seas.
Available to the use for all states for purposes of navigation, flying over
them, laying submarine cables or fishing.
In times of war, hostilities may be waged on the open seas.
Sic utere tuo, non alienum laedas.
Facts:
The Lotus, a French steamer, and the Bozkourt, a Turkish vessel, collided on
the Aegean Sea, outside territorial waters resulting in the sinking of the
latter vessel and death of several of Turkish nationals.
The Lotus docked at Constantinople, where its officer of watch at the time
of the accident, a French national, was subsequently convicted of
manslaughter by the Turkish courts.
France protested arguing that the collision took place in open seas
Held:
The offense for which Lieutenant Demons appears to have been
prosecuted as an act of negligence or imprudence, having its origin on
board the Lotus whilst its effects made themselves felt on board the
Bozkourt.
These elements are legally entirely inseparable so much so that their
separation renders the offense non-existent.
It is only natural that each should be able to exercise jurisdiction and to do
so in respect of the incident as a whole. THIS IS A CASE OF CONCURRENT
JURISDICTION BY FLAG STATES.
Penal jurisdiction in matters of collision or any other incident of
navigation (Art. 97, UNCLOS)
The subjacent state has jurisdiction over the air space above it to the
upward limits of the atmosphere.
No foreign aircraft, civil or military, may pass through the aerial domain of
a state without its consent.
Chapter 12
RIGHT OF LEGATION
Outer space and other celestial bodies are not susceptible of national
appropriation.
Head Of State
37
Foreign Secretary
His office, the Foreign Office handles the actual day-to-day conduct of
foreign affairs.
He is the immediate representative of the head of state and directly under
his control.
He makes binding declarations on behalf of his state on any matter falling
within his authority, i.e. questions relating to international claims against
the state.
He is the head of the foreign office and has direction of all ambassadors
and other diplomatic representatives of his government.
Diplomatic Envoys
Ambassadors or nuncios accredited to heads of state;
Envoys, ministers or internuncios accredited to heads of state; and
Charge daffaires accredited to ministers for foreign affairs.
Note: The are classifications of heads of mission under the Vienna
Convention on Diplomatic Relations in 1961. Classification important only
in matters of protocol or grant of special honors.
Other Membersh Of The Diplomatice Mission
Diplomatic Staff composed of those engaged in diplomatic activities and
accorded diplomatic rank.
Appointment of Envoys
President appoints, sends and instructs the diplomatic and consular
representatives. His prerogative to determine the assignment of the
diplomatic representative cannot be questioned. [De Perio-Santos v.
Macaraig, G.R. No. 94070, Apr. 10, 1992]
Sending state not totally free in choosing it diplomatic representatives,
especially heads of mission. Receiving state has the right to refuse to
receive the representative.
Process Of Agreation
The informal process of avoiding rejection of diplomatic representative
that may result to strained relations between the sending and receiving
states.
Sending state resorts to informal inquiry (enquiry) as to the acceptability of
a particular envoy.
Receiving state responds with an informal conformity (agrement).
The process is concluded by appointment and formal accreditation of the
representative.
Commencement Of Diplomatic Mission
38
Envoy presents himself at the receiving state armed with the following
papers:
Lettre de creance (Letter of credence) with his name, rank and general
character of his mission and request for favorable reception and full
credence;
Diplomatic passport authorizing his travel;
Instructions which may include document of full powers (pleins pouvoirs)
giving him authority to negotiate on extraordinary or special business;
Cipher or Code Book for use in sending secret communication to his
home country.
Personal inviolability
Immunity from jurisdiction
Inviolability of diplomatic premises
Inviolability of archives
Inviolability of communication
Exemption from testimonial duties
Exemption from taxation
Other privileges
Personal Inviolability
Not liable to any form of arrest or detention.
Receiving state should treat him with due respect and shall take all
appropriate steps to prevent any attack on his person, freedom or dignity.
Respondent judge issued a warrant for the search and seizure of certain
goods alleged to have been brought into the Philippines illegally by an
official of the World Health Organization.
The WHO and the official moved to quash the warrant on the ground of
diplomatic immunity enjoyed by the official.
Held:
The search warrant is void. It is a recognized principle of international law
and under our system of separation of powers that diplomatic immunity is
essentially a political question and courts should refuse to look beyond a
determination by the executive branch.
The DFA Secretary and OSG joined them in the representation but the
judge denied the motion
In processions:
Generally, the place of honor is the first or sometimes the last.
Protocol in short processions:
(2) dignitaries the 1st has the precedence
(3) dignitaries the middle is the place of honor; the first, the 2nd in honor;
and the third, the third in honor
(4) dignitaries 2nd is the place of honor; the 1st is the second in honor;
3rd & 4th, third and fourth respectively.
(5) dignitaries middle is the place of honor; the one in advance is the 2nd
in honor; the 4th place is the 3rd in honor; the 1st place is the 4th in
honor, and the 5th place is the 5th in honor.
Other Privileges
Freedom of movement and travel in the territory of the receiving state.
Exemption from all personal services and military obligations.
Use of the flag and emblem of the sending state on the diplomatic
premises and the residence and means of transportation of the head of
mission.
Precedence Among Diplomatic Representatives
In conferences or congresses of state, precedence is according to the
alphabetical FRENCH NAMES of states.
Gun Salutes
Ambassadors 19 guns
Envoys Extraordinaire and Ministers Plenipotentiary 15 guns
Ministers Resident 13 guns
Charge daffairs 11 guns
Duration Of Immunities & Privileges
From the moment he enters the territory of the receiving state until he
leaves or upon expiration of a reasonable time in which to do so.
With respect to official acts, immunity shall continue ad infinitum.
41
Waiver of Immunities
Diplomatic privileges may be waived.
But the waiver cannot be made by the individual concerned SINCE
IMMUNITIES ARE NOT PERSONAL TO HIM.
Waiver may be made only by the government of the sending state for head
of mission. In other cases, by either the government or the chief of mission.
Waiver does not include execution of judgment. A separate waiver is
necessary
The practice was modified by the Romans with the appointment of their
PRAETOR PEREGRINUS, who interpreted the law between the Romans and
foreigners.
Chapter 13
CONSULS
Nature Of Office Of Consuls
They are state agents residing abroad for various purposes but mainly in
the interest of COMMERCE AND NAVIGATION.
Unlike diplomatic agents, they are not charged with the duty of
representing their states in political matters
Nor are they accredited to the state where they are supposed to discharge
their functions.
42
Appointment of Consuls
Two important documents are necessary before a consul assumes his
functions:
1. Lettre de Provision (Letters Patent) The of appointment or commission
issued by the sending state and transmitted to the Secretary/Minister,
Foreign Affairs of the receiving state.
2. Exequatur The authority given to consul by the RECEIVING STATE
authorizing them to exercise their duties. By it, consuls are public office
both
Functions/Duties Of Consul
Promotes the commercial interests of his country in the receiving state and
observes the commercial trends and developments therein for report to his
home government.
Performs duties relating to navigation, such as visiting and inspecting
vessels of his own state which may make call at his consular district. He
may also exercise a measure of supervision over such vessel, adjusting
matters pertaining to their internal order and discipline.
Issues passport to the nationals of the sending state
Issues visas and other documents relating to entry into and travel within
the territory of the sending state.
Issues visa invoices and certificates of origin of goods destined for the
territory of that state.
Looks after the interests of fellow national and extends to them official
assistance when needed.
Authenticates documents, solemnizes marriages, registers births and
deaths, administers temporarily estates of deceased nationals within the
consular district, advises and adjusts differences between fellow nationals,
etc.
Immunities & Privileges of Consul
Freedom of communication in cipher or codes.
Functions Of Treaties
To settle finally actual and potential conflicts;
To be able to modify the rules of international customary law by means of
optional principles or standards;
Freedom Of Consent
Given by way of:
Signature
Exchange of instruments constituting a treaty
Ratification
Acceptance
Approval or accession; or
By other means manifesting consent.
Subject Matter
Object and subject matter must be lawful, i.e. within the commerce of
nations and in conformity with international law.
Ratification
In accordance to constitutional processes of the respective parties.
Non-compliance will prevent enforcement of the treaty even if already
signed by the authorized negotiators.
In the Phils., 2/3 of all the members of the Senate should concur in the
treaty.
1.
2.
3.
4.
5.
Treaty-making Process
Negotiation
Signing of the Treaty
Ratification
Exchange of Instruments of Ratification
Registration
1. Negotiations
Representative must be armed with credentials known as pleins pouvoirs
(full powers) to be exhibited to the other negotiators at the start of the
formal discussion.
Issued from competent authority of a state designating a person/s to
represent the state for negotiating, adopting or authenticating the text of a
treaty, expressing the states consent to be bound by the treaty, or
accomplishing any other act with respect to the treaty.
45
Parties to submit a draft of the proposed treaty. Together with the counterproposals, the draft becomes the basis of subsequent negotiations.
2. Signature
Purpose: To symbolize the good faith of the parties.
Does not indicate the FINAL CONSENT of the state, especially if ratification
is required under municipal law.
A treaty is binding only on the contracting parties, including not only the
original signatories but also other states which, although they may not
have participated in the negotiation, have been allowed by its terms to sign
it later by the process so-called as accession.
Attitudes Which A Party May Indicate Without Being Origanally A Party
o
o
o
o
o
o
o
46
Signifies the effectivity of the treaty, unless a different date has been
agreed upon.
If there ratification is dispensed with and no effectivity clause is provided,
the treaty is deemed effective upon its signature.
5. Registration & Publication
Every treaty and international agreement entered into by any member of
the UN should be registered with the Secretariat and published by it. [Art.
102, UN Charter].
Nonetheless, failure to register would not affect the validity of the treaty.
But unregistered treaty cannot be invoked by any party thereto before any
organ of the UN.
Pact Used at times to mean treaty, like the Pact of Paris of 1892,
renouncing war as an instrument of national policy.
Concordat Agreement entered into by the Pope with the heads of foreign
states.
47
Termination Of Treaties
Expiration of term
Accomplishment of the purpose
Impossibility of performance
Loss of the subject matter
Desistance of the parties, through express mutual consent. Also known as
desuetude, i.e. the exercise of the right of denunciation or withdrawal,
when allowed.
Novation
48
Chapter 15
NATIONALITY & STATELESSNESS
Nationality vs. Citizenship
Nationality Membership in a political community with it concomitant
rights and duties. It is a tie that binds an individual to his state, from which
he can claim protection and whose laws he is obliged to obey.
Citizenship It has more exclusive in scope. It applies only to certain
members of the state accorded with more privileges that the rest.
a.
b.
c.
d.
e.
a. Birth
Jus soli Acquisition of nationality of the state where one is born;
Jus sanguinis by blood, i.e. acquiring nationality of ones parent or
parents.
b. Naturalization
Direct:
Sec. 2, Art. III, Phil. Constitution where a Filipino woman continues her
citizenship even if married to a foreigner.
50
month before the outbreak of WWII. Many members of his family and his
business connections were in Germany.
In 1943, Guatemala, which had declared war on Germany, confiscated all
his properties on the ground that he was an enemy national. Liechtenstein
thereupon filed suit against Guatemala on his behalf as its naturalized
citize.
Issue: Was Nottebohms naturalization binding on Guatemala?
Held:
The courts of third states, when they have before them an individual whom
two othe states hold to be their national, seek to resolve the conflict by
having recourse to international criteria and their prevailing tendency is to
prefer the REAL AND EFFECTIVE NATIONALITY.
Nottebohms actual connections with Liechtenstein were extremely
tenuous.
No settled abode, no prolonged residence in that country at the time of his
application for naturalization.
Not intention of settling there was shown at that time or realized in the
ensuing weeks, months or years on the contrary, he returned to
Guatemala very shortly after his naturalization and showed every intention
of remaining there.
Naturalization was asked not so much for the purpose of obtaining a legal
recognition of Nottebohms membership in fact in the population of
Liechtenstein, as it was to enable him to substitute for his status as a
national of a belligerent state that of a
Naturalization was asked not so much for the purpose of obtaining a legal
recognition of Nottebohms membership in fact in the population of
Liechtenstein, as it was to enable him to substitute for his status as a
national of a belligerent state that of a neutral state, with the sole aim of
thus coming within the protection of Liechtenstein but not of becoming
wedded to its traditions, its interests, its way of life or of assuming the
51
Statelessness
The status of having no nationality, as a consequence of being born
without any nationality, or as a result of deprivation or loss of nationality.
[Labo v. Comelec, 176 SCRA 1]
Chapter 16
Treatment of Aliens
Includes the power to regulate the entry and stay of aliens and the right to
expel them through deportation or reconduction.
Aliens must accept the institutions of the state as he finds them.
Aliens may be deprived of certain rights, e.g., political rights, acquisition of
lands, etc.
Or, they may granted certain rights and privileges based on:
reciprocity
MFN treatment
National treatment
But once it decides to accept aliens, its competence as territorial sovereign
is limited by the requirement that they be treated justly, in accordance
with the law of nations.
Expulsion or Deportation
Predicated on the ground that
the stay of the alien constitutes a menace to the security of the state;
his entry was illegal;
permission to say has expired; or
he has violated any limitation or condition prescribed for his admission and
continued stay.
Reconduction
The forcible conveying of aliens back to their home state.
53