public international law reviewer

PUBLIC INTERNATIONAL LAW aiza ebina/2015 Arellano University School of Law

JURISDICTION - the authority exercised by a state over persons and things within

or sometimes outside its territory, subject to certain exceptions.

CLASSIFICATION:

1) personal

2) territorial

Jurisdiction may be exercised by a state over:

1) its nationals

2) the terrestrial domain

3) the maritime and fluvial domain

4) the continental shelf

5) the open seas

6) the aerial domain

7) outer space

8) other territories

PERSONAL JURISDICTION

- the power exercised by a state over its nationals

- based on the theory that a national is entitled to the protection of his state

wherever he may be, and is bound to it by a duty of obedience and allegiance

- follows him even when he is outside the territory of his state and may not be

excused from it unless he renounces his own nationality (Doctrine of Indelible

Allegiance)

- ARTICLE 15. "Laws relating to family rights and duties, or to the status, condition

and legal capacity of persons, are binding upon citizens of the Philippines, even

though living abroad." (Civil Code)

- ARTICLE 16. "Intestate and testamentary succession, both with respect to the

order of succession and to the amount of successional rights and to the intrinsic

validity of testamentary provisions, shall be regulated by the national law of the

person whose succession is under consideration, whatever may be the nature"

(Civil Code)

- to tax citizens, even if not residing in the Philippines, is also provided for in our

Internal Revenue Code for income received by them "from all sources"

- An alien may be held subject to the laws of a state whose national interest he

has violated, and notwithstanding that the offense was committed outside its

territory.

- Article 2 of the Revised Penal Code punishes any person who, whether in or

outside our territory, should forge or counterfeit Philippine currency, utter such

spurious securities or commit any crime against our national security or the law

of nations.

TERRITORIAL JURISDICTION

- General Rule: a state has jurisdiction over all persons and property within its

territory

- the jurisdiction of the nation within its own territory is necessary, exclusive and

absolute.

- more effective than personal jurisdiction because it is asserted by the state over

persons and property within its immediate control and subject to its coercive

processes

The state cannot exercise jurisdiction even within its own territory over:

1) foreign states, heads of states, diplomatic representatives, and consuls to a

certain degree

- exempt because of the sovereign equality of states and on the theory that a

contrary rule would disturb the peace of nations.

- diplomats and consuls enjoy the exemption in order that they may have full

freedom in the discharge of their official functions (except if travelling in

cognito)

2) foreign state property, including embassies, consulates, and public vessels

engaged in non-commercial activities

- public vessels are regarded as extensions of the territory of the state

3) 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 judgment on the acts

of the government of another, done within its own territory.

- Redress of grievances by reason of such act must be obtained through the

means open to be availed of by sovereign powers as between themselves

4) foreign merchant vessels exercising the rights of innocent passage or arrival

under stress

- Innocent passage: navigation through the territorial sea of a state for the

purpose of traversing that sea 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, good order or security of the coastal state.

- Arrival under stress: involuntary entrance may be due to lack of provisions,

unseaworthiness of the vessel, inclement weather, or other cases of force

majeure, like pursuit by pirates

5) Foreign armies passing through or stationed in its territories with its permission

6) Such other persons or property, including organizations like the United Nations,

over which it may, by agreement, waive jurisdiction

- examples: Convention on the Privileges and Immunities of the United Nations,

Convention on the Privileges and Immunities of Specialized Agencies, RP-US

Bases Treaty

Land Jurisdiction

- everything found within the terrestrial domain of the state is under its

jurisdiction:

- nationals and aliens, including non-residents, are bound by its laws, and no

process from a foreign government can take effect for or against them within the

territory of the local state without its permission.

- as against all other states, the local state has exclusive title to all property

within its territory


Maritime and Fluvial Jurisdiction

- the internal waters of a state are assimilated to the land mass and subjected to

the same degree of jurisdiction exercised over the terrestrial domain

- enclosed waters, such as the land-locked lakes, national rivers and man-made

canals are covered

- civil, criminal and administrative jurisdiction is exercised by the flag state over

its public vessels wherever they may be, provided they are not engaged in

commerce

- national ships of war entering the port of a friendly power open for their

reception are to be considered as exempted by the consent of that power from

its jurisdiction

- foreign merchant vessels docked in a local port or bay, jurisdiction is exercised

over them by the coastal state in civil matters, but criminal jurisdiction is

determined according to either the English rule or French rule

- English Rule: the coastal state shall have jurisdiction over all offenses

committed on board such vessels, except only where they do not compromise

the peace of the port

- French Rule: the flag state shall have jurisdiction over all offenses committed

on board such vessels, except only where they compromise the peace of the

port

- there is no substantial distinction between the two rules, under either, offenses

committed on board the foreign merchant vessel shall be triable by the territorial

sovereign when they constitute a disturbance of its peace and all other offenses

shall be under the jurisdiction of the state whose flag the vessel flies

- English rule is applicable in our country

- territorial sea: uniform breadth of 12 miles from the low-water mark of the

coast (1982 Convention on the Law of the Sea)

- 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 (Archipelago Doctrine)

The Contiguous Zone

- "protective jurisdiction"

- "in a zone of the high seas contiguous to its territorial sea, the coastal state may

exercise the control necessary to:

a) prevent infringement of its customs, fiscal, immigration or sanitary regulations

within its territory or territorial sea

b) punish infringement of the above regulations within its territory or territorial

sea

- may not extend more than 12 miles from the coast of the state

- extends 12 miles, but from the other limits of the territorial sea

The Continental Shelf

refers to:

a) the seabed and subsoil of the submarine areas adjacent to the coast but

outside the area of the territorial sea, to a depth of two hundred meters or,

beyond that limit, to where the depth of the superjacent waters admits of the

exploitation of the natural resources of the said areas

b) the seabed and subsoil of similar areas adjacent to the coasts of the lands

- exclusive in the sense that if the coastal state does not explore the continental

shelf or exploit its natural resources, no one may undertake these activities or

make a claim to the continental shelf without the consent of the coastal state

The Patrimonial Sea

- exclusive economic zone

- extends 200 miles from the coast or the baselines.

- all living and non-living resources found therin belong exclusively to the coastal

state

The Open Seas

- high seas

- res communes and available to the use of all states for purposes of navigation,

flying over them, laying submarine cables or fishing

- a state may exercise jurisdiction on the open seas:

a) over its vessels

- In the event of a collision or of any other incident of navigation concerning a

ship on the high seas, involving the penal or disciplinary responsibility of the

master or of any other person in the service of the ship, no penal or disciplinary

proceeding may be instituted against such persons except before the judicial or

administrative authorities either of the flag state or of the state of which such

person is a national. (The Lotus Case)

b) over pirates

c) in the exercise of the right of visit and search

d) under the doctrine of hot pursuit

Aerial Jurisdiction

- the local state has jurisdiction over the airspace above it to an unlimited height,

or at the most up to where outer space begins

- no foreign aircraft, civil or military, may pass through the aerial domain of a

state without its consent

- "Five Air Freedoms"

1) the freedom to fly across foreign territory without landing

2) the freedom to land for non-traffic purposes

3) the freedom to put down traffic originating in the state of the aircraft

4) the freedom to embark traffic destined for the state of the aircraft

5) the freedom to embark traffic destined for or to put down traffic originating

in a third state

- the state of registration of the aircraft has jurisdiction over offenses or acts

committed on board whie it is in flight or over the high seas or any other area

outside the territory of any state

Outer Space

- the region beyond the earth's atmosphere


- not subject to the jurisdiction of any state

- not subject to national appropriation by claim of sovereignty, by means of use

or occupation or by any other means

- a state launching an object into outer space shall retain jurisdiction and control

over such object, and over any personnel thereof, while in outer space or on a

celestial body

Other Territories

- a state may, by virtue of customary or conventional international law, extend

its jurisdiction beyond its territory and over territory not falling under its

sovereignty

- through acquisition of extraterritorial rights

- Exterritoriality: refers to the exemption of persons and property from the local

jurisdiction on the basis of international custom

- Extraterritoriality: applies only to persons and is based on treaty or

convention

------------------------------------------------------------------------------------------------------------

RIGHT OF LEGATION

- the exercise of the right of legation is one of the most effective ways of

facilitating and promoting intercourse among states

- active right of sending diplomatic representatives

- passive right of receiving diplomatic representatives

AGENTS OF DIPLOMATIC INTERCOURSE

- diplomatic relations are normally conducted through the:

1) head of state

2) foreign secretary or minister

3) members of the diplomatic service

- envoys ceremonial: usually sent to attend state functions like a coronation or

jubilee

- envoys political: may be commissioned to negotiate with a particular state or to

participate in an international conference or congress

THE HEAD OF STATE

- regarded as the embodiment of or at least represents the sovereignty of his

state

- entitled to certain immunities and honors befitting his status

- his quarters, archives, property, and means of transportation are inviolate

under the principle of exterritoriality

- exempt from criminal jurisdiction and from civil jurisdiction

- not subject to tax or to exchange currency restrictions

THE FOREIGN SECRETARY

- the conduct of external affairs is now generally entrusted to the foreign

secretary

- is the immediate representative of the head of state and directly under his

control

- can make binding declarations on behalf of his state on any matter falling within

his authority

- head of the foreign office

-has direction of all ambassadors and other diplomatic representatives of his

government

DIPLOMATIC ENVOYS

- regular day-to-day conduct of international affairs is entrusted to the members

of the foreign service who are accredited by the sending state as its permanent

envoys to represent it in the states with which it is maintaining diplomatic

relations

1) Ambassadors or nuncios accredited to heads of state

2) envoys, ministers or internuncios accredited to heads of state

3) charges d'affaires accredited to ministers of foreign affairs

THE DIPLOMATIC CORPS

- a body consisting of the different diplomatic representatives who have been

accredited to the same local or receiving state

- headed by a doyen du corps

- doyen du corps: the oldest member with the highest rank

- papal nuncio in catholic countries

- a loose organization without any corporate character

- does not possess any legal power or attributes

APPOINTMENT OF ENVOYS

- not merely a matter of municipal law because the receiving state is not obliged

to accept any representative who is persona non grata to it

- most states now observe the practice of agreation

- agreation: informal inquiries are addressed to the receiving state regarding a

proposed diplomatic representative of the sending state

- only when receiving state manifests its agreement or consent, that the

diplomatic representative is appointed and formally accredited

- the receiving state is not obliged to give reasons for a refusal of agreement

COMMENCEMENT OF THE DIPLOMATIC MISSION

- when head of the mission has presented his credential or when he has notified

his arrival and a true copy of his credentials has been presented to the foreign

ministry of the receiving state

- until the receiving state had previously given its agreement to his appointment,

the diplomatic representative cannot claim the usual privileges and immunities of

his office until he is formally accepted

- Credentials of the Diplomatic Agent include:

1) the letter of credence (or lettre de creance)


2) diplomatic passport

3) his official instructions

4) cipher or code book for use in sending secret communications to his

government

DIPLOMATIC FUNCTIONS

1) representing the sending state in the receiving state

2) protecting the receiving state the interests of the sending state and its

nationals

3) negotiating with the government of the receiving state

4) ascertaining by all lawful means conditions and developments in the receiving

state and reporting thereon to the government of the sending state

5) promoting friendly relations between the sending and receiving states and

developing their economic, cultural and scientific relations

CONDUCT OF DIPLOMATIC MISSION

- diplomatic agent must exercise the utmost discretion and tact, taking care

always to preserve the goodwill of the sending state and to avoid interference

with its internal affairs

DIPLOMATIC IMMUNITIES AND PRIVILEGES

- fiction of exterritoriality: envoy was considered an extension of the state he was

representing

- his privileges and immunities are necessary to give the envoy the fullest

freedom or latitude in the exercise of his official functions

1) Personal Inviolability

- special protection of his person, honor, and liberty

- the person of a diplomatic agent shall be inviolable

- not liable to any form of arrest or detention

- receiving state shall treat him with due respect and shall take all appropriate

steps to prevent any attack on his person, freedom or dignity

2) Immunity from Jurisdiction

- diplomatic agent shall be immune from the civil, criminal and administrative

jurisdiction of the receiving state except in a few specified cases

- shall enjoy immunity from the criminal jurisdiction of the receiving state

- shall enjoy immunity from its civil and administrative jurisdiction except in the

case of:

a) a real action relating to private immovable property situated in the territory of

the receiving state, unless he holds it on behalf of the sending state for the

purposes of the mission

b) an action relating to succession in which the diplomatic agent id involved as

executor, administrator, heir or legatee as a private person and not on behalf of

the sending state

c) an action relating to any professional or commercial activity exercised by the

diplomatic agent in the receiving state outside his official functions

THE HOLY SEE vs ROSARIO

The Supreme Court dismissed a civil complaint against the petitioner after the

Department of Foreign Affairs had officially certified that the Embassy of the

Holy See is a duly accredited diplomatic mission to the Republic of the

Philippines exempt from local jurisdiction as entitled to all the rights, privileges,

and immunities of a diplomatic mission or embassy in this country. It was

further affirmed that the determination of the executive arm of the government

that a state or instrumentality is entitled to sovereign or diplomatic immunity is

a political question that is conclusive upon the courts. Where a plea of immunity

is recognized and affirmed by the executive branch, it is the duty of the courts

to accept this claim so as not to embarrass the executive arm of the

government n conducting the country's foreign relations.

3) Inviolability of Diplomatic Premises

- premises of the mission shall be inviolable

- agents of the receiving state may not enter them except with the consent of the

head of mission

- receiving state must take all appropriate steps to protect the premises of the

mission against any intrusion or damage and to prevent any disturbance of the

peace of the mission or impairment of its dignity

- premises of the mission, their furnishings and other property thereon and

means of transport of the mission shall be immune from search, requisition,

attachment or execution

- franchise l'hotel extends de immunity from the local law to the diplomatic

premises

- include envoy's offices, his residence and out-buildings, his means of

transportation, and the compound where these are found, which may not be

entered by the local authorities without his permission

4) Inviolability of Archives

- receiving state has no right to pry into the official papers and records of a

foreign diplomatic mission

- archives and documents of the mission shall be inviolable at any time and

wherever they may be

- in case of armed conflict, the archives must remain sealed and may not be

confiscated by the local state

5) Inviolability of Communication

- right to free communication is recognized and protected by international law

- receiving state shall permit and protect free communication of the part of the

mission for all official purposes

6) Exemption from Testimonial Duties

- a diplomatic agent is not obliged to give evidence as a witness


- not prohibited from doing so and may waive this privilege when authorized by

his government

7) Exemption from Taxation

- diplomatic envoy exempt from taxes, customs duties, and other dues, social

security requirements under certain conditions

- personal baggage also free from inspection unless there are serious grounds for

presuming that it contains articles not exempt from customs duties or not

admissible into the receiving state

8) Other Privileges

- receiving state shall ensure to all members of the mission freedom of

movement and travel in its territory

- receiving state shall exempt diplomatic agents from all personal services, from

all public services, and from military obligation

- mission and its head have the right to use the flag and emblem of the sending

state in the premises of the mission, including the residence of the head of the

mission, and on his means of transport

THE DIPLOMATIC SUITE OR RETINUE

- immunities and privileges available to:

1) head of mission

2) his family

3) members of the diplomatic retinue

- Diplomatic Retinue: consists of the diplomatic staff, the administrative and

technical staff and the service staff

- private servants who are not nationals or permanent residents of the receiving

state are exempted from dues and taxes on their income from the mission

DURATION

- diplomatic privileges and immunities are enjoyed the moment the entitled

person enters the territory of the receiving state on proceeding to take up his

post, or if already there, the moment his appointment is notified to the foreign

ministry

- privileges and immunities cease from the moment he leaves the country when

his functions come to an end

- privileges and immunities available to him and his family not only in situ but as

well as in transitu (when travelling through a third state on the way or from the

receiving state, so far as may be necessary to secure his transit or return

TERMINATION OF DIPLOMATIC MISSION

Municipal Law:

1) Death

2) Resignation

3) Removal

4) Abolition of the Office

International Law:

5) Recall

6) Dismissal

Recall

- may be demanded by the receiving state when the foreign diplomat becomes

persona non grata to it for any reason

Dismissal

- where the demand for recall is rejected by the receiving state, or even without

request for a recall, the receiving state may resort to the more drastic method of

dismissal

- offending diplomat is asked to leave the country

- outbreak of war between sending and receiving states terminates their

diplomatic relations which are in fact severed even before the actual

commencement of hostilities

- extinction of either state will also have same effect

- diplomatic relations are not disturbed if there is peaceful change of government

- diplomatic relations may be suspended if change of government is effected by

means of violence

------------------------------------------------------------------------------------------------------------

CONSULS

- state agents residing abroad for various purposes but mainly in the interest of

commerce and navigation

- not diplomatic agents

- not charged with the duty of representing their states in political matters nor

are accredited to the state where they are supposed to discharge their functions

- do not ordinarily enjoy all the traditional diplomatic immunitites and privileges

- entitled to a special treatment under the law of nations

Kinds and Grades

1) Consules Missi

- professional or career consuls who are nationals of the appointing state

- required to devote their full time to the discharge of their consular duties

2) Consules Electi

- may or may not be nationals of the appointing state

- perform their consular functions only in addition to their regular callings

Classification

1) Consul-General

2) Consul

3) Vice-Consul

4) Consular Agent


Appointment

Consuls derive their authority from two principal sources:

1) letter patent or lettre de provision

- commission issued by the sending state

2) exequatur

-authority given to them by the receiving state to exercise their duties therein

- Consuls are public officers of both sending and receiving states

- are governed by the laws of both states

- the severance of diplomatic relations shall not ipso facto involve the severance

of consular relations

Functions

- Commerce and Navigation

- duties respecting the issuance of passports and visas

- duties of protection of nationals

- to promote the commercial interests of their country in the receiving state

- to observe the commercial trends and developments therein for report to their

home government

- perform duties related to navigation and inspecting vessels of their own states

which may be in the consular district

- exercises a measure of supervision over such vessels

- adjusts matters pertaining to their internal order and discipline

- visiting and inspecting foreign vessels destined for a port of the sending state

- issue passports to nationals of the sending state,

- visa passports

- issue documents relating to entry into and travel within the territory of the

sending state

- visa invoices and certificates of origin of good s destined for the territory of that

state

- authenticate documents

- solemnize marriages

- register births and deaths

- temporarily administer the estates of the deceased nationals within their

consular district

- advise and adjust differences between their fellow nationals

- visit them when they are arrested or detained by the receiving state

Immunities and Privileges

- have a right to official communication and correspondence with their home

government without being subjected to censorship or unreasonable restraint

- enjoy inviolability of their archives which may not be examined or seized by

the receiving state (this immunity does not extend to consular premises)

- exempted from the local jurisdiction for crimes committed by them in the

discharge of their official functions

- usually not prosecuted for minor offenses

- given adequate opportunity to secure their release on bail at the earliest

possible time

- immune from suit when the acts complained of were performed in the course

of official duties

- generally exempted from taxation, customs duties, service in the militia, and

social security rules

- privileged to display their national flag and insignia in the consulate

- immunities and privileges of consuls are also vailable to the members of the

consular post, their families and the private staffs

Termination of Consular Mission

- may end as a result of removal, resignation, death, expiration of the term

- exequatur may be withdrawn by the receiving state

------------------------------------------------------------------------------------------------------------

TREATIES

Treaty - a formal agreement, usually but not necessarily in writing, which is

entered into by states or entities possessing the treaty-making capacity, for the

purpose of regulating their mutual relations under the law of nations

- embraces conventions, declarations, covenants, acts, concordats

- agreements, when intended to create legal as distinguished from moral

obligations, are binding on the parties

- executive agreement is not a treaty

- Executive Agreement: concurrence thereto of the Senate is not required under

our Constitution

Functions of Treaties

1) enable parties to settle finally actual and potential conflicts

2) they make it possible for the parties to modify the rules of international

customary law by means of optional principles or standards

3) may lead to a transformation of unorganized international society into one

which may be organized on any chosen level of social integration

4) they frequently provide the humus for the growth of international customary

law

Essential Requisites of a Valid Treaty

a) must be entered into by parties with the treaty-making capacity

b) through their authorized representatives

c) without the attendance of duress, fraud, mistake, or other vice of consent

d) on any lawful subject-matter

e) in accordance with their respective constitutional processes

a) Treaty-Making Capacity

- all states have full treaty-making capacity unless limited by reason of their


status or by previous self-imposed inhibitions

b) Authorized Representatives

- municipal law determines which organ of the state shall be empowered to enter

into treaties in its behalf

- Our Constitution authorizes the President to make treaties, subject to the

concurrence of 2/3 of all the members of the Senate

c) Freedom of Consent

- fraud or mistake will invalidate a treaty as it would an ordinary contract

- a treaty forced upon the person of the negotiator is unquestionably null and

void ab initio

d) Lawful Subject Matter

- a treaty with unlawful purposes, which is contrary to international conventions

and public morality, would be null and void

e) Compliance with Constitutional Processes

- treaty-making process governed by international law

- method of ratification governed by municipal law

- non-compliance with this requisite will prevent enforcement of the treaty even

if already signed by authorized negotiators

Treaty-making Process

1) Negotiation - undertaken directly by the head of state or his authorized

representatives

- one of the parties submits a draft of the proposed treaty which together with

the counter-proposals, becomes the basis of subsequent negotiations

2) Signature - after negotiators finally decide on the terms of the treaty, the same

is opened for signature

- signature authenticates the instrument and to symbolize good faith of the

parties

- document signed in accordance with the alternat, each of the several

negotiators sign first on the copy which he will bring home to his own state

3) Ratification - the formal act by which a state confirms and accepts the

provisions of a treaty concluded by its representatives

- purpose is to enable the contracting states to examine the treaty more closely

- an unratified treaty cannot be a source of obligations between the parties

- a treaty which has been ratified without proper observance of these

requirements is ipso facto invalid, whatever the proclamation of the head of

state may assert in that respect

- in the Philippines, the power to ratify treaties is vested in the President and not

in the legislature

- role of Senate is only to give or withhold its consent to the ratification

4) Exchange of the instruments of ratification

- signifies the effectivity of the treaty unless a different date has been agreed

upon by the parties

- a treaty does not cease to be binding between the parties and may be the basis

of a litigation before some arbitral or judicial body not connected with the United

Nations

- treaties not registered and publishes with the UN Secretariat are not null and

void

Binding Effect of Treaties

- 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 of the agreement, have been allowed by its terms to sign it

later by a process known as accession

- non-parties are usually not bound under the maxim pacta tertiis nec nocent nec

prosunt

- thrid states may be validly held to the observance of or benefit from the

provisions of a treaty if it is merely a formal expression of customary

international law which is enforceable on all civilized states because of their

membership on the family of nations

- parties to unrelated treaties may also be linked by the most-favored-nation

clause

- Most-Favored-Nation Clause: a contracting state entitled to

most-favored-nation treatment from the other may claim the benefits

extended by the latter to another state in a separate agreement

Observance of Treaties

- Pacta sunt servanda - one of the fundamental rules of international law

- requires the performance in good faith of treaty obligations

Tanada v. Angara

One of the oldest and 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 inherent nature, treaties really limit or restrict the absoluteness of

sovereignty. 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 if their otherwise absolute rights. Thus, treaties have

been used to record agreements between States concerning such widely diverse

matters as, for example, the lease of naval base, the sale or cession of territory,

the termination of war, the regulation of conduct of hostilities, the formation of

alliances, the regulation of commercial relations, the settling of claims, the laying

down of rules governing conduct in peace and the establishment of international

organizations. 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)


limitations imposed by the treaty stipulations.

- when a treaty conflicts with the constitution of one of the parties, the former is

nevertheless internationally binding although unenforceable under municipal

law.

- peculiarities of constitutional structure are without international significance to

other states

- Statute vs Treaty : on equal footing so the latter law will prevail (superseded)

- General vs Special: general law cannot prevail over special law

- new law prevails over existing treaty

- pacta sunt servanda

- one can always ask for the revision of a treaty, amend its constitution to make it

conform to the treaty or pay damages to the other parties for its inability to

comply with its commitments

Doctrine of Rebus Sic Stantibus

- the equivalent exception to the maxim pacta sunt servanda

- constitutes an attempt to formulate a legal principle which would justify

non-performance of a treaty obligation if the conditions with relation to which

the parties contracted have changed so materially and so unexpectedly as to

create a situation in which the exaction of performance would be unreasonable

- subject to limitations:

a) it applies only to treaties of indefinite duration

b) the vital change must have been unforeseen or unforeseeable and should not

have been caused by the party invoking the doctrine

c) the doctrine must be invoked within a reasonable time

d) it cannot operate retroactively upon the provisions of the treaty already

executed prior to the change of circumstances

Treaty Interpretation

- the basic law in interpretation of treaties is to give effect to the intention of the

parties

- discoverable in the terms of the treaty itself, which has an official text or texts

to be used in case of conflicts in interpretation

- most treaties contain a "protocol" or "agreed minutes" in which certain terms

used in the body are defined and clarified

- specific provisions must be read in light of the whole instrument and the

purposes of the treaty

- words used are to be given their natural meaning unless a technical sense was

intended

- when they have different meanings in the contracting states, should be

interpreted in accordance with the usage of the state where they are supposed

to take effect

- doubts should be resolved against the imposition of obligations and in favor of

the freedom and sovereignty of the contracting parties

- intrinsic and extrinsic aids

- conflicts in interpretation may be resoved only by agreement of the parties

themselves or by an international body and not unilaterally by the national courts

of the contracting parties

- decisions of such courts are received with respect but not as authority

Termination of Treaties

1) by expiration of the term (may be fixed or subject to a resolutory condition)

2) by accomplishment of the purpose

3) by impossibility of performance

4) by loss of the subject-matter

5) by desistance of the parties (through express mutual consent, desuetude or

denunciation or withdrawal)

6) by novation

7) by extinction of one of the parties (bipartite treaties)

8) by vital change of circumstances under the doctrine of rebus sic stantibus

9) by outbreak of war between the parties

10) by voidance of the treaty because of defects in its conclusion, violation of its

provisions by one of the parties, or incompatibility with international law or the

UN Charter

------------------------------------------------------------------------------------------------------------

NATIONALITY AND STATELESSNESS

- individual is merely an object and not a subject of international law

- he is not directly governed by its rules both in enjoyment of rights and in the

performance of duties

- statelessness: no remedy of diplomatic claim generally available on behalf

an individual for there would be no entity with international personality (state)

to intercede for him for the protection and vindication of his rights under the

law of nations

Nationality - the tie that binds an individual to his state, from which he can claim

protection and whose laws he is obliged to obey

- membership in a political community with all its concomitant rights and

obligations

- used interchangeably with citizenship

- Citizenship: has a more exclusive scope in that it applies only to certain

members of a state accorder more privileges than the rest of the people who

also owe it allegiance

Acquisition of Nationality

- acquired by birth or by naturalization

- jure soli: an individual acquires the nationality of the state where he is born

- jure sanguinis: acquires the nationality of his parents

- naturalization: a process by which a foreigner acquires, voluntarily or by

operation of law, the nationality of another state

- may be direct or derivative


Direct Naturalization

- effected by:

1) individual proceedings (usually judicial, under general naturalization laws)

2) special act of the legislature (in favor of distinguished foreigners who have

rendered notable service to local state)

3) collective change of nationality (naturalization en masse as a result of cession

or subjugation)

4) adoption of orphan of minors as nationals of the state where they are born

Derivative Naturalization

- conferred on:

1) the wife of the naturalized husband

2) the minor children of the naturalized parent

3) the alien woman upon marriage to a national

- not automatic because it is subject to restrictions and conditions

- in Philippine laws, an alien woman married to a Filipino shall acquire his

citizenship only if she herself must be lawfully naturalized

- marriage does not cause someone to loss of his citizenship unless his Filipino

citizenship is expressly renounced by him (RA 9225, Citizenship Act of 2003)

- a Filipino who marries an alien ipso facto acquires his spouse's citizenship but is

dependent on his qualifications for naturalization

Multiple Nationality

- possessed of more than one nationality due to the concurrent application to

him of the municipal laws of the states claiming him as their national

- an individual may be compelled to retain his original nationality

notwithstanding that he has already renounced or forfeited it under the laws of

a second state whose nationality he has acquired (Doctrine of Indelible

Allegiance)

- a state may allow any of its nationals to remain as such even if he may have

acquired another nationality (honorary citizenship by a government)

Loss of Nationality

- lost voluntarily or involuntarily

- Voluntary Methods: precede the acquisition if a new nationality

a) renunciation (express or implied)

b) request for release

- Involuntary Methods:

a) forfeiture (a result of disqualification of prohibited act like enlistment in a

foreign army)

b) long continued residence in a foreign state

c) substitution of one nationality for another following a change of sovereignty

d) any act conferring derivative naturalization

Conflict of Nationality Laws

- Within a third state, a person having more than one nationality shall be

treated as if he had only one. Without prejudice to the application of its law in

matters of personal status and of any convention in force, a third state shall, of

the nationalities which any such person possesses, recognize exclusively in its

territory either the nationality of the country in which he is habitually and

principally resident or the nationality of the country with which in the

circumstances he appears to be in fact most closely connected (Principle of

Effective or Active Nationality)

Statelessness

- the condition or status of an individual who is born without any nationality or

who loses his nationality without retaining or acquiring another

- examples:

1) child born in a state where only the jus sanguinis is recognized to parents

whose state observes only the jus soli

2) an individual after renouncing his original nationality in order ti be naturalized

in another state is subsequently denaturalized and is thereafter denied

repatriation by his former country

- individual is powerless to assert any right that otherwise would be available to

him under international law were he a national of a particular state

- any wrong suffered by him through the act or omission of a state would be

damnum absque injuria for in theory, no other state had been offended and no

international delinquency committed as a result of the damage caused upon him

- any injury to the individual by a foreign jurisdiction is not a violation of his own

right but of the right of the state to the protection of its nationals

- the right to complain does not belong to him but to the state of which he is a

national

- children shall have the nationality of the state of their birth whenever their

parents are:

a) unknown

b) stateless or of unknown nationality

c) a mother who is a national of the state where they are born

- in case of naturalization, the wife and children retain their existing nationality if

they are not also naturalized

- the wife will acquire her husband's new nationality, if permitted, only with her

consent

- the adopted child's existing nationality is also not lost if he does not acquire the

adopter's nationality

- a stateless individual is not entirely without recourse under the law of nations

- he is entitled to:

1) the right to religion and religious instruction

2) access to courts

3) elementary education

4) public relief and assistance and rationing of products in short supply

5) treatment no less favorable than that accorded to aliens

------------------------------------------------------------------------------------------------------------


TREATMENT OF ALIENS

- aliens must be treated justly, in accordance with the law of nations

- if this duty is not observed, the alien and his state would have valid cause for

complaint

- the alien is not entitled to special treatment over and above that accorded the

national of the local state

- the alien cannot claim a preferred position vis-a-vis the national of the state

where he is only a guest

- foreigner may not enjoy the right to vote, to run for public office, to exploit

natural resources, or to engage in certain businesses regarded as vital to the

interests of the local state

- the foreigner must accept the institutions of the local state as he finds them

- the state is not an insurer of the life of property of alien when he is within its

territory

The Doctrine of State Responsibility

- there are instances when the alien can claim a more favored position than the

national of the local state, and in proper cases, hold the state liable for injuries

committed against him while within its territory

- these instances are governed by the Doctrine of State Responsibility

- the state may be held responsible for:

a) an international delinquency

b) directly or indirectly imputable to it

c) which causes injury to the national of another state

- liability will attach to the state where its treatment of the alien falls below the

international standard of justice or where it is remiss in according him the

protection of redress that is warranted by the circumstances

- function is to assure the traveler that when his rights are violated in a foreign

state, he will not be denied any remedy simply because he is not one of its

nationals

The International Standard of Justice

- a concept of controversial content that has defied precise definition

- it is the standard of the reasonable state, as referring to the ordinary norms of

official conduct observed in civilized jurisdictions

- it is deemed not satisfied if the laws of a state are intrinsically unjust as when

there is a marked disproportion between the degree if an offense and the penalty

imposed for it

- the laws will also be below this standard if they authorize the summary decision

of contentious cases without the observance of the usual rights to notice and

hearing and other requirements of due process

- laws falling below the international standard of justice applicable to the

nationals of the state and made applicable to aliens is not a defense

- this view is more generally favored as against the doctrine of equality of

treatment

Failure of Protection or Redress

- the state may be held liable if it does not make reasonable efforts to prevent

injury to the alien or fails to repair such injury

- responsibility does not immediately attach to the state upon a showing of a

failure to prevent or redress an injury to aliens

- Direct and Indirect Responsibility

- Direct Responsibility: where the international delinquency was committed by

superior government officials or organs like the chief of state or the national

legislature, liability will attach immediately as their acts may not be effectively

prevented or reversed under the constitution and laws of the state

- Indirect Responsibility: where the offense is committed by inferior government

officials or by private individuals, the state will be held liable only if by reason of

its indifference in preventing or punishing it, it can be considered to have

connived in effect in it is commission

Exhaustion of Local Remedies

- enforcement of state liability for an international delinquency cannot be

claimed by the injured foreigner unless he first exhausts all available local

remedies for the protection or vindication of his rights

- corollary of the principle that the foreigner must accept the institutions of the

state as he finds them

- the state must be given an opportunity to do justice in its own regular way and

without unwarranted interference with its sovereignty by other states

- where there is a judicial remedy, it must be sought, and only if it is sought in

vain does diplomatic imposition become proper

Resort to Diplomatic Protection

- if the foreigner has exhausted all local remedies but without success, he may

then avail himself of the assistance of his state, but only if he has a state

- any injury to an alien is a violation not of his own personal right but of the right

of his state to have its nationals protected whenever they are in a foreign country

- where the injured alien is stateless, his case will be one damnum absque injuria

and cannot be the subject of diplomatic protection

- the tie of nationality is required to exist from the time of the injury until the

time the international claim is finally settled

- the United Nations may file a diplomatic claim on behalf of its officials

Enforcement of Claim

- an international claim for damages may be resolved through negotiation or, if

this fails, any of the other methods of settling disputes, like good offices,

arbitration, and judicial settlement

- hostile and forcible measures have been employed

- war has been resorted to as a means of compelling compliance with the

demands of the injured state

- when the responsibility of the state is established or acknowledged, the duty to


make reparation will arise

- Forms of Reparation:

1) Restitution

2) Satisfaction

3) Compensation

- the settlement may consist of the restoration or replacement of the object of

the offense, a formal apology by the delinquent state and payment of damages

as well

Avoidance of State Responsibility

- doctrine of state responsibility applied more frequently to tortious rather than

contractual liability because of the unwillingness of most states to act as

"collection agencies" for their nationals entering into private agreements with or

in foreign countries

- to avoid the intervention of the alien's state in contracts of this nature, the local

state incorporates therein the Calvo clause

- Calvo Clause: a stipulation by which the alien waives or restricts his right to

appeal to his own state in connection with any claim arising from the contract

and agrees to limit himself to the remedies available under the laws of the local

state

- Calvo clause may be enforced as a lawful condition of the contract

- it may not be interpreted to deprive the alien's state of the right to protect or

vindicate his interests in case they are inquired in another state as such waiver

can legally be made not by him but by his own state

- an alien may lawfully make such promise as embodied in the Calvo clause but

he cannot deprive his own state of its right of applying international remedies to

violations of international law committed to his damage

Exclusion of Aliens

- state may avoid liability by refusing the admission of aliens

- this is not regarded as sound policy since it would provoke retaliation in kind

and ultimately isolate its nationals from the rest of the international community

- indiscriminate entry of aliens is not allowed because it might pose a danger to

the welfare and especially the security of the admitting country

- the practice of most states is to regulate the immigration and stay of aliens and

to provide for their deportation whenever warranted

- arrangements for extradition of alien fugitives may be made

- Deportation: the removal of an alien out of a country, simply because his

presence is deemed inconsistent with the public welfare, and without any

punsihment being imposed or contemplated, either under the laws of the

country out of which he is sent, or under those of the country to which he is

taken

- Exclusion: the denial of entry to an alien

Extradition

- the surrender of a person by one state to another state where he is wanted for

prosecution or, if already convicted, for punishment

- different from deportation since it is effected at the request of the state of

origin

- deportation is the unilateral act of the local state

- extradition is based on offenses committed in the state of origin whereas

deportation is based on causes arising in the local state

- extradition calls for the return of the fugitive to the state of origin

- an undesirable alien maybe deported to a state other than his own or the state

of origin

Basis of Extradition

- extradition of a person is required only if there is a treaty between the state of

refuge and the state of origin

- in the absence of such a treaty, the local state has every right to grant asylum to

the fugitive and to refuse to deliver him back to the latter state even if he is its

national

Fundamental Principles of Extradition

1) Extradition is based on the consent of the state of asylum as expressed in a

treaty or manifested as an act of goodwill

2) Under the 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 extradition treaty. If he is charged with any other offense

committed before his escape, the state of refuge, and not the accused, has a right

to object, nevertheless, the prosecution will be allowed if the extraditing state

agrees or does not complain

3) Any person may be extradited, whether he be a national of the requesting

state, of the state of refuge or of another state. The practice of many states now,

however, is not to extradite their own nationals but to punish them under their

own laws in accordance with the nationality principle of criminal jurisdiction

4) Political and religious offenders are generally not subject to extradition. It has

been held that in order to constitute an offense of a political character, there

must be two or more parties in the state, each seeking to impose the government

of their own choice on the other

- everyone has the right to seek and enjoy in other countries asylum from

persecution

- this right may not be invoked in the case of prosecutions generally arising from

non-political crimes or from acts contrary to the purposes and principles of the

United Nations

5) In the absence of special agreement, the offense must have been committed

within the territory or against the interests of the demanding state

6) the act for which the extradition is sought must be punishable in both the

requesting what is known as and requested states under the rule of double

criminality

Procedure of Extradition

1) a request for extradition is presented through diplomatic channels to the state


of refuge

2) upon receipt of request, the state of refuge will conduct a judicial investigation

to ascertain if the crime is covered by the extradition treaty and if there is a

prima facie case against the fugitive according to its own laws

3) if there is prima facie evidence, a warrant of surrender will be drawn

4) the fugitive will be delivered to the state of origin

- abduction of the national in the state of refuge back to the state of origin is not

allowed under international law as they constitute a violation of the territorial

integrity of the state of refuge

SECRETARY OF JUSTICE v. LANTION

The Supreme Court originally sustained the demand of Mark Jimenez to be

informed of the charges against him in the US request for his extradition. On

motion for reconsideration, however, the decision was reversed, also by an 8-6

vote, on the ground that such charges were still being evaluated and no

complaint for extradition had as yet been filed in court.

------------------------------------------------------------------------------------------------------------

SETTLEMENT OF INTERNATIONAL DISPUTES

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

certain manner and that claim is rejected by the latter

- International Dispute: an actual disagreement between states regarding the

conduct to be taken by one of them for the protection or vindication if the

interests of the other

- Situation: where the disagreement has not yet ripened to a full-blown conflict

or the issues have not yet been sufficiently formulated and defined

- a situation is the initial stage of a dispute

- Legal Dispute: involves justiciable rights based on law or fact susceptible of

adjudication by a judicial or arbitral tribunal

- Political Dispute: it cannot be decided by legal processes on the basis of the

substantive rules of international law because the differences of the parties

spring from animosities in their mutual attitudes rather than from an antagonism

of legal rights

Methods of Settling Disputes

- disputes must be settled, conformably to one of the basic principles of the

United Nations, by peaceful means, in such manner that international peace

and security, and justice, are not endangered

- states have on many occasion found it necessary to settle their disputes by

themselves alone without regard to higher authority

Amicable Methods

1) Negotiation

2) Inquiry

3) Good offices

4) Mediation

5) Conciliation

6) Arbitration

7) Judicial Settlement

8) Resort to regional and international organizations

- they all involve participation if a third party, such as a state or a prestigious

statesman or jurist, except Negotiation

Negotiation

- the first step taken in the settlement of an international dispute

- the discussion undertaken by the parties themselves of their respective claims

and counterclaims with a view to their just and orderly adjustment

- where talks prosper and agreement is reached, it is formalized through a treaty

or effected through rectification of the inquiry caused to the claimant state

Inquiry

- an investigation of the points in question, on the theory that their elucidation

will contribute to the solution of the differences between the parties

- findings of the party making the inquiry are not conclusive upon the disputing

states but they may exert a strong moral influence in the settlement of the

conflict

Good Offices

- a method by which a third party attempts to bring the disputing states together

in order to enable them to discuss the issues in contention and arrive at an

agreement

- employed when the parties are no longer in speaking terms and when they have

severed diplomatic relations or have actually commenced hostilities

Mediation

- a more active involvement than good offices

- the third party does not merely provide for the opportunity for the antagonists

to negotiate but also actively participates in their discussions in order to reconcile

their conflicting claims and appease their feelings of resentment

- the suggestions of the mediator are merely persuasive, and may be rejected

without offense by the parties to the dispute

Conciliation

- calls for the active participation of a third party in the attempt of the disputants

to settle their conflict

- the recommendations made by it are likewise not binding

- the services of the conciliator are bit offered by the third party but solicited by

the parties in dispute, unlike in mediation

Arbitration

- the solution of a dispute by an impartial third party, usually a tribunal created


by the parties themselves under a charter known as the compromis which will

provide for the composition of the body and the manner of the selection of its

members, it rules of proceedings and sometimes even the law to be resolved

- proceedings are usually judicial and the award is, by previous agreement,

binding on the parties to the dispute, unlike in conciliation

- similar to judicial settlement not only on the nature of the proceedings and the

binding character of the decisions but also in the fact that the disputes submitted

for adjudication are legal rather than political

- consent to jurisdiction of the International Court of Justice is not compulsory

and depends on the agreement of the parties

- consent is manifested in a treaty containing the "compromissary clause"

- Compromissary Clause: empowers the Court to settle disputes arising from the

interpretation or the application of such treaty or through the "optional

jurisdiction clause"

Arbitration v. Judicial Settlement

1) Judicial Settlement: pre-existing and permanent body

Arbitration: arbitral tribunal is an ad hoc body created and filled by the parties to

the dispute

2) Judicial Settlement: jurisdiction is compulsory

Arbitration: submission to arbitration is voluntary

3) Judicial Settlement: law applied by the tribunal is independent of the will of

the parties

Arbitration: law applied by the tribunal may be limited by the parties in

arbitration proceedings

Action by Regional Organizations

- may be resorted to by the parties on their own volition or taken by the body

itself at its own instance if allowed by agreement of the members

- several organizations now exist in the various regions of the world but with

varying degrees of effectiveness depending on their respective charters

Hostile Methods

- when the pacific methods of settling disputes are unsuccessful, states

sometimes find it expedient to resort to what are known as the hostile or

non-amicable methods

- unfriendly methods

- may involve illegal and coercive acts

- usually imposed upon weak countries by strong powers

- regarded as mild alternative compared to war

- they may avoid the necessity if creating a more serious state of hostilities which

might not be justified by the nature of the dispute

CLASSIFICATIONS

1) Retorsions

2) Reprisals

3) Interventions

Retorsions

- any action taken in retaliation where the acts complained of do not constitute a

legal ground of offense but are rather in the nature if unfriendly acts but

indirectly hurtful to other states

- act of retaliation is also unfriendly but not illegal

- may be in kind or of a different nature than the act that provoked it

- Examples:

a) severance of diplomatic or consular relations

b) suspension of commercial intercourse

c) boycott

d) stoppage of travel to the other state

e) denunciation of treaties

f) imposition of higher tariffs and other trade barriers

g) currency restrictions

h) denial of loans

i) withdrawal of privileges previously enjoyed

j) recognition of a rival government

k) adverse propaganda

Reprisals

- an act of self-help on the part of the injured state, responding after an

unsatisfied demand to an act contrary to international law on the part of the

offending state

- have the effect of suspending momentarily in the relations of the two states the

observance of the rules of international law

- limited by the experience of humanity and the rules of good faith, applicable in

the relation of state with state

- would be illegal if a previous act contrary to international law had not furnished

the reason for them

- aim to impose on the offending state reparation for the offense or the return to

legality in avoidance of new offenses

Common Forms of Reprisals

1) display of force

- deployment of fleet pending compliance of a demand by offended state

2) occupation of territory

- seizing of territories of the offending state

3) embargo

- the detention by the state seeking redress of the vessels of the offending state

or its nationals, whether such vessels are found in the territory of the former or

on the high seas

4) pacific blockade

- the vessels of the offending state are prevented from entering or leaving its


ports by the ships of the state seeking redress

The United Nations

- in the event that none of the methods succeed in settling the dispute, or even if

they are not employed, the United Nations may be asked or may decide on ot

own authority to take a hand in its settlement

- addressed principally to the Security Council

- Security Council shall have jurisdiction to intervene in:

a) all disputes affecting international peace and security

b) all disputes which although coming under the diplomatic jurisdiction clause,

have been submitted to it by the parties for settlement

- if measures of the Security Council also prove unavailing, it may recommend

such actual terms of settlement as it may consider appropriate (compulsory

settlement)

- where terms of settlement are rejected by the parties, the Security Council is

empowered to take more drastic steps:

1) Preventive Actions - measures adopted not involving the use of armed force

- involves complete or partial interruption if economic relations and of rail, sea,

air, postal, telegraphic, radio and other means of communication

- severance of diplomatic relations

2) Enforcement Action - done when preventive actions prove inadequate

- includes demonstrations, blockades and other operations by air, sea, or land

forces of members of the United Nations

------------------------------------------------------------------------------------------------------------

WAR

- either a specific action or a specific status

- As a Specific Action: war may be defined as an armed contention between the

public forces of states or other belligerent communities, implying the

employment of violence among the parties as a means of enforcing their

respective demands upon each other

- As a Specific Status: war may exist even without the use of force, as when one

state formally refuses to be governed by the laws of peace in its relations with

another state even if actual hostilities have not taken place between them

- the employment of force by one state against another does not necessarily

result in war

- like any fact to which international law attaches certain consequences, the fact

"war" must be ascertained by the competent authorities. As long as no objective

authority is established, it is for the states concerned to ascertain the existence if

the fact "war in the international sense (Kelsen)

Outlawry of War

- was accepted as a legitimate means of compulsion, provided it was a reaction to

an international delict (it was a "just" war or bellum justum)

- the Charter of the United Nations is categorically committed to the outlawry of

war

- UN Preamble: "determined to save succeeding generations from the scourge of

war which twice in our lifetime has brought untold sorrow to mankind"

- all UN members are called upon to abstain from the use of force in the solution

of international differences and to see 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

- the use of force is allowed in two instances only:

1) in the exercise of the inherent right of self-defense

2) in pursuance of the so-called enforcement action that may be decreed by the

Security Council

Laws of War

1) The Declaration of Paris of 1856 (warfare at sea)

2) The Hague Conventions of 1899 (use of expanding bullets and asphyxiating

gases)

3) The Hague Conventions of 1907 (opening of hostilities, the laws and customs

of warfare o land, conversion of merchant ships into warships, the laying of

automatic submarine contact mines, naval bombardment, exercise of right of

capture in naval warfare, discharge of projectiles from balloons, adaptation to

maritime warfare if the Geneva Convention 1864 rules, treatment of the

wounded in land warfare, rights and duties of neutrals in land warfare and naval

warfare)

4) The Geneva Convention of 1925 (use of asphyxiating, poisonous and other

gases and of bacteriological methods of warfare)

5) The Geneva Convention of 1929 (treatment of the sick and wounded and

prisoners of war)

6) The Declaration of London of 1936 (use of submarines against merchant

vessels)

7) The Geneva Convention of 1949 (amelioration of the sick and wounded on

land, amelioration of the sick and wounded and of shipwrecked members of the

armed forces at sea, treatment of prisoners of war, protection of civilian persons

in war)

8) The Nuclear Nonproliferation Treaty

Sanctions for Non-adherence to the Laws of War

1) protest lodged by one belligerent (usually accompanied or followed by an

appeal to world opinion against the unlawful acts of warfare committed by the

other belligerent)

2) reparation for damages caused by the defeated belligerent

3) punishment of war criminals

Commencement of War

- hostilities must not commence without a previous and explicit warning, in the

form of either of a reasoned declaration of war or of an ultimatum with

conditional declaration

- war is supposed to commence on the date specified in the declaration or on the


date it is communicated to the enemy

- war is supposed to commence from the moment of the first act of force

committed by one state with intent of making war or committed without such

intent but considered by the other state as constituting war

- war may start with a declaration of war, with the rejection of an ultimatum, or

with the commission of an act of force regarded by at least one of the

belligerents as an act of war

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. third states are governed by the laws of neutrality

in their dealings with the belligerents

2) diplomatic and consular relations between the belligerents are terminated and

their respective representatives are allowed to return ti their own countries

3) treaties of a political nature are automatically canceled, but those which are

precisely intended to operate during war are activated. Multipartite treaties

dealing with technical or administrative matters are deemed merely suspended

as between the belligerents

4) individuals are impressed with enemy character:

a) under the nationality test: if they are nationals if the other belligerent

b) under the domiciliary test: if they are domiciled aliens in the territory of the

other belligerent, on the assumption that they contribute to its economic

resources

c) under the activities test: if being foreigners, they participate in the hostilities in

favor of the other belligerent

5) enemy public property found in the territory of the other belligerent at the

outbreak of hostilities is subject to confiscation. Enemy private property may be

sequestered, subject to return, reimbursement or other disposition after the war

Combatants and Non-combatants

Combatants - those who engage directly in the hostilities

Non-combatants - do not engage directly in the hostilities

- non-combatants should not be subjected to attack as they are not supposed to

participate in the actual fighting

- only the combatants may lawfully wage war and are subject to direct attack

from the enemy

- when captured, combatants are entitled to treatment as prisoners of war

- non-combatants do not enjoy identical rights when captured but are protected

from inhumane treatment

Combatants

1) members of the armed forces

- army, navy, air force

- except those not actively engaged in combat (chaplains, medical personnel)

2) irregular forces

- francs tireurs or the guerillas

- provided they are:

a) commanded by a person responsible for his subordinates

b) wearing a fixed distinctive sign recognizable at a distance

c) carrying arms openly

d) conducting their operations in accordance with the laws and customs of war

3) inhabitants of unoccupied territory

- on approach of the enemy, spontaneously take arms to resist the invading

troops without having had time to organize themselves

- they carry arms openly and observe the laws and customs of war

- referred to as levee en masse

4) officers and crew of merchant vessels who forcibly resist attack

Rights of Prisoners of War

1) to be accorded the proper respect commensurate with their rank

2) adequate food and clothing

3) safe and sanitary quarters

4) medical assistance

5) refuse to give military information or render military service against their own

state

6) communicate with their families

Conduct of Hostilities

- basic principles underlying the rules of warfare:

1) Principle of Military Necessity

2) Principle of Humanity

3) Principle of Chivalry

Principle of Military Necessity

- belligerents may employ any amount and kind of force to compel the complete

submission of the enemy with the least possible loss of lives, time and money

- other measures such as sieges, blockades, bombardments, and devastation of

property, which may involve direct hardships on the non-combatants are

undertaken in this principle

Principle of Humanity

- the use of any measure that is not absolutely necessary for the purposes of the

war

- examples: poisoning of wells and weapons, employment of dumdum or

expanding bullets and asphyxiating gases, destruction of works of art and

property devoted to religious or humanitarian purposes, bombarding of

undefended places, attack of hospital ships

- pillage is prohibited

- when an enemy vessel is sunk, the other belligerent must see to the safety of

the persons on board

- wounded and the sick must be humanely treated without distinction of

nationality by the belligerent


- a combatant who surrenders may not be killed

- agreements relating to the treatment of prisoners of war fall under this

principle

Principle of Chivalry

- basis of such rules that require the belligerents to give proper warning before

launching bombardment

- prohibit the use of perfidy in the conduct of the hostilities

- ruses and stratagems of war are allowed provided they do not involve the

employment of treacherous methods

- false flags are not allowed in land warfare

- war vessels may sail under a flag not their own subject to the requirement that

they haul it down and hoist their own flag before attacking the other belligerent

- espionage is prohibited since it involves deceit

Spy

- an individual is considered a spy if, acting clandestinely or under false pretenses,

he obtains, or seeks to obtain, information in the zone of operations of a

belligerent, with the intention of communicating it to the hostile party

- scouts, or soldiers in uniform who penetrate the zone of operations of a hostile

army to obtain information, are not spies (should be treated as prisoners of war

when captured)

- spies are subject to the municipal law of the other belligerent

- a spy taken in the act cannot be punished without previous trial

- a spy who succeeds in rejoining his army and is later captured incurs no

responsibility for his previous acts of espionage

- is entitled to be treated as a prisoner of war

Kinds of Warfare

Aerial Warfare

- rules have become obsolete and need to be revised to make them conform to

present realities

Naval Warfare

- most serious difficulties lie in the disagreement among states as to whether

armed merchant vessels are subject to attack and the general violation of the

rules against the laying of unanchored mines and the misuse of submarines and

torpedoes

Land Warfare

- rules have remained substantially unaltered and deal generally with the

treatment of combatants on the battlefield and the obligations incumbent on the

troops making an attack, siege or bombardment

- booty, or personal property found in the battlefield is subject to confiscation by

the belligerent state

- except personal belongings of the individual which have no military value

Theatre of War

- the place where the hostilities are actually conducted

Region of War

- the greater area where the belligerents may lawfully engage each other

- would comprise their own territories and the open seas

- excluding neutral territory

Belligerent Occupation

- one of the usual incidents of war is the occupation of hostile territory by a

belligerent that exercises authority over it until its forces voluntarily withdraw or

are expelled by the enemy

- territory is deemed occupied when it is actually placed under the authority of

the hostile army

- belligerent occupation does not result in transfer or suspension of the

sovereignty of the legitimate government although it may at the moment be

unable to exercise it

- the belligerent occupant cannot perform such acts as declaring the

independence of the occupied territory

- cannot require its inhabitants to renounce their allegiance to the lawful

government

- belligerent is required to restore and ensure public order and safety while

respecting the laws in force in the country

- belligerent occupant may promulgate new laws, non-political and political

- political laws automatically abrogated upon the end of the occupation

- non-political laws may continue even beyond the occupation unless they are

expressly repealed or modified by the legitimate government

- occupant is permitted to exact from the populace contributions over and above

the regular taxes for the needs of the army of occupation or for the

administration of the territory

- it can make requisition of things or services, excluding military, for the needs of

the occupying forces

- belligerent occupant can introduce military currency, provided the purpose is

not to debase the country's economy

- private property cannot be confiscated but those susceptible of military use

may be seized, subject to restoration or compensation when peace is made

- property of municipalities, religious institutions, institutions for charity and

education, arts and sciences, even when state-owned are considered private

property and their destruction is expressly forbidden

- the army of occupation can take possession of cash, funds, and realizable

securities

- can take possession of depots of arms, means of transport, stores and supplies,

and movable property belonging to the state which may be used for military

operations

- land and sea and air appliances, adapted for the transmission of news, or for the

transport of persons or things, exclusive of cases governed by naval law, depots

of arms and all kinds of ammunition of war may be seized but must be restored

and compensation fixed when peace is made

- occupying state shall be regarded only as administrator and usufructuary of


public buildings, real estate, forests, agricultural estates belonging to the hostile

state and situated in the occupied territory

Postliminium

- the right of postliminy

- that in 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 postliminum now also imports the reinstatement of the authority of the

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

affected

- upon the end of a belligerent occupation, the laws of the re-established

government are revived

- all acts taken by the belligerent occupant which it could not legally do under the

law of nations, as well as lawful political acts, are invalidated

- examples of illegal acts: confiscation of property by occupant (invalid)

- examples of legal acts: collection of taxes by the occupation government (valid)

- examples of non-political laws: decree of divorce, judgment of recovery of debt

(valid)

- examples of political laws: conviction of a crime against occupation forces

(invalid)

Non-Hostile Intercourse

- certain relations between the belligerents which are not strictly hostile:

1) Flag of truce - a white flag is carried by an individual authorized by one

belligerent to enter into communications with the other

- parlementaire: the bearer, is entitled to inviolability as long as he does not take

advantage of his privileged position to commit an act of treachery

- the other belligerent is not obliged to receive a flag of truce

2) Cartels - agreements to regulate intercourse during war on such matters as

postal and telegraphic communication

- the reception of flags of truce

- exchange of prisoners

- Cartel ship: a vessel sailing under a safe-conduct for the purpose of carrying

exchanged prisoners of war

3) Passport - a written permission given by the belligerent government or its

authorized agent to the subjects of the enemy state to travel generally in

belligerent territory

4) Safe-Conduct - a pass given to an enemy subject or to an enemy vessel

allowing passage between defined points

- given either by the belligerent government or by the commander of the area

within which it is effective

5) Safeguard - a protection granted by a commanding officer either to enemy

persons or property within his command.

- when enforced by a detail of men, they must use extreme measures, if

necessary to fulfill their trust, and are themselves exempt from attack or capture

by the enemy

6) License to trade - a permission given by the competent authority to individuals

to carry on trade even though there is a state of war

- General License: grants to all the subjects of the enemy state or to all its own

subjects the right to trade in specified places or in specified articles.

- Special License: grants to a certain person the right to trade in the manner

specified in his license

Suspension of Hostilities

1) Suspension of arms

- a temporary cessation of the hostilities by agreement of the local commanders

for such purposes as the gathering of the wounded and the burial of the dead

2) Armistice

- the suspension of all hostilities within a certain area (local) or in the entire

region of the war (general) agreed upon by the belligerent governments, usually

for the purpose of arranging the terms of the peace

Suspension of Arms vs Armistice

Armistice: purpos

public international law reviewer

Documents

sovereign state

acts of state

foreign state property

law of nations

civil code article

foreign states

testamentary succession

order of succession