Duka PIL Notes

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College of Law PUBLIC INTERNATIONAL LAW (PIL) 2013 BALBIN, Paul PUBLIC INTERNATIONAL LAW Nature of Public International Law Public International Law Law that deals with the conduct of States and International organizations, their relations with each other and in certain circumstances, their relations with persons, natural or juridical HISTORY Ancient International Law governed exchange of diplomatic emissaries, peace treaties, etc. in the world of ancient Romans and earlier. The progressive rule of JUS GENTIUM seen as a law “common to all man” became the law of the vast Roman Empire. Modern International Law began with the birth of nation-states in the Medieval Age. Governing principle was derived from Roman law or Canon Law which drew from natural law. Hugo Grotius considered father of modern International law. What he called “LAW OF THE NATIONS” was later given the name “INTERNATIONAL LAW” by Jeremy Bentham The positivist approach reinterpreted International Law not on a basis of concepts derived from reason but rather on basis of what actually happened in the conflict between states. With the emergence of nation of sovereignty came the view of law as commands backed up by threats of sanction. In this view, International law no law because not from command of sovereign. Significant milestones in development of international law: 1.) Peace of “Westphalia (ending 30 year war) established a treaty based framework for peace cooperation. (it was at this time that PACTO SUNT SERVANDA arose) 2.) Congress of Vietnam (ending Napoleonic wars) created a system of multilateral political and economic cooperation. 3.) Covenant of the league of Nations (including the Treaty of Versailles ending WW1) created the Permanent Court of International Justice. 4.) Founding of UN in aftermath of WW2. Shift of power away from Europe and beginning of truly universal institution. Universalization advanced by decolonization which resulted in expansion of membership of UN. New states, carrying a legacy of bitterness against colonial powers, became members. 5.) Cold war period succeeded in maintaining peace through balancing of 2 super powers. 6.) Dissolution of Soviet Union resulting in end of Cold War with re- emergence of International relations based on multiple sources of power and not mainly ideology. HUGO GROTIUS (De jure Belli Ac Pacis Libri Tes) International practices, customs, rules and treaties proliferated to the point of complexity. Several scholars sought to compile them all into organized treatises. The most important of these was Hugo Grotius whose treatise De jure Belli Ac Pacis Libri Tes is considered the starting point for modern

description

Public International Law

Transcript of Duka PIL Notes

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College of Law

PUBLIC INTERNATIONAL LAW (PIL) 2013

BALBIN, Paul

PUBLIC INTERNATIONAL LAW

Nature of Public International Law

Public International Law

Law that deals with the conduct of States and International organizations, their relations with

each other and in certain circumstances, their relations with persons, natural or juridical

HISTORY

Ancient International Law governed exchange of diplomatic emissaries, peace treaties, etc. in

the world of ancient Romans and earlier. The progressive rule of JUS GENTIUM seen as a law “common

to all man” became the law of the vast Roman Empire.

Modern International Law began with the birth of nation-states in the Medieval Age. Governing

principle was derived from Roman law or Canon Law which drew from natural law. Hugo Grotius

considered father of modern International law. What he called “LAW OF THE NATIONS” was later given

the name “INTERNATIONAL LAW” by Jeremy Bentham

The positivist approach reinterpreted International Law not on a basis of concepts derived from reason

but rather on basis of what actually happened in the conflict between states. With the emergence of

nation of sovereignty came the view of law as commands backed up by threats of sanction. In this view,

International law no law because not from command of sovereign.

Significant milestones in development of international law:

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

cooperation. (it was at this time that PACTO SUNT SERVANDA arose)

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

economic cooperation.

3.) Covenant of the league of Nations (including the Treaty of Versailles ending WW1) created the

Permanent Court of International Justice.

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

universal institution. Universalization advanced by decolonization which resulted in expansion of

membership of UN. New states, carrying a legacy of bitterness against colonial powers, became

members.

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

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

relations based on multiple sources of power and not mainly ideology.

HUGO GROTIUS (De jure Belli Ac Pacis Libri Tes)

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

Several scholars sought to compile them all into organized treatises. The most important of these was

Hugo Grotius whose treatise De jure Belli Ac Pacis Libri Tes is considered the starting point for modern

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

of mankind, with its own existence. Some laws were invented by men but ultimately they reflected the

essential natural law. Grotius was no different, except in one important respect. Unlike the earlier,

thinkers, who believed that the natural law was imposed by a debt, Grotius believed that the natural law

came from an essential universal reason, common to all men.

This rationalist perspective enabled Grotius to posit several rational principles underlying law.

Law was not imposed from above, but rather derived from principles. Foundation principle included the

anxious the promises must be kept, and that harming another requires a situation. These 2 principles

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

Grotius also dealt with international custom or voluntary law. Grotius emphasized the importance of

actual practices, customs and treaties- what “is” done- as opposed to normative rules of what “ought to

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

predominant form of state in Europe , and their man-made laws became more important than religious

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

“ought to be”.

Difference between Public International Law and Conflicts of Law

Public International Law Conflicts of Law

As to NATURE International It is a law of a sovereign over those subjected to his way Transactions of states private Part of Political Law

Municipal or National Except when embodied in a treaty or convention, becomes international in character. It is a law, not a above, but between, sovereign states and is therefore, a WEAKER LAW Part of Civil Law

As to REMEDIES/ SETTLEMENT International Modes of Settlement Like Negotiations, and arbitration, reprisals and even war

Local or Municipal Tribunals through local administrative and judicial processes

As to SOURCE Derived from such sources as international customs, international conventions and the general principles of law

Consists mainly from the law making authority of each state

As to PARTIES International Entities Applies to relations states INTER SE and other international persons

Private Persons Regulates the relations of individuals whether of the same nationality or not

As to ENFORCEMENT International Sanctions Sheriff/ Police

Responsibility for violation Infractions are usually collective Generally, entails only individual

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in the sense that it attaches directly to the state and not its nationals

responsibility

Regulates the political intercourse of nations with each other or concerns questions of rights between nations

Regulates the comity of states in giving effect in one to the municipal laws of another relating to private persons or concerns the rights of persons within the territory and dominion of one state or nations by reason of acts, private or public, done within the dominion of another, and which is based on the broad general principle that one country will respect and give effect to the laws of another so far as can be done consistently with its own interests.

1. The LAWS of PEACE

a. Governs the normal relations of states

b. Human Rights Law

2. The LAWS of WAR

a. When war breaks out between or some of them

b. International Humanitarian Law

c. Laws of Armed Conflicts

3. The LAWS of NEUTRALITY

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

involved in the war, are governed by the laws of neutrality

THE SOURCES OF INTERNATIONAL LAW

In the absence of a centralized legislative, executive and judicial structure, there is no single

body able to legislate and there is no system of courts with compulsive power to decide what the law is

nor is there a centralized repository of international law. Thus, there’s a problem of finding out where

the law is. Nevertheless, International Law exists and there are sources where the law can be found.

2 CLASSIFICATIONS:

1. Formal Sources:

a. The various processes by which rules come into existence (e.g. legislation, treaty making

and judicial decision making and the practice of states)

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2. Material Sources:

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

Also referred to as “evidence” of International Law (e.g. state practice, UN resolutions,

treaties, judicial decisions and writings of jurists)

The doctrine of sources lay down conditions for verifying and ascertaining the existence of legal

principles. The conditions are observable manifestations of the “wills” of the states as revealed in the

processes by which norms are formed (treaty and state practice accepted as law) The process of

verification is inductive and positivistic.

PRIMARY SOURCES

1. International Treaties and Conventions

a. Are voluntarily entered into by states and encapsulates express obligations entered

into,

2. International Customs

a. These are the consistent practice of states adopted over several years

b. Is usually invoked where there are no treaties that exist to cover a particular issue or

situation.

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

3. General Principles of International Law

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

i. e.g. all states created equal

SUBSIDIARY SOURCE

4. Decisions of Courts

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

given weight. Decisions of municipal or domestic courts are given lesser weight except

if they pertain to precedent-setting cases such as the POQUETE HABANA CASE

5. Teachings of Publicists

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

various nations. As subsidiary means for the determination of rules of law”

i. Publicist: learned Writers

BASES OF INTERNATIONAL LAW

1. The Law of Nature School

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

individual in his own conscience and though the application of right reason

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

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

2. Positivist School

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

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

customary law, and presumed in the case of the general principles of law

3. The Eclectic or Grotian School

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

international law is binding partly because it is good and right and partly because states

have agreed to be bound by it

b. This appears to be the most widely accepted

FUNCTIONS OF INTERNATIONAL LAW

The Principal Functions are:

1. To promote international peace and security

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

differences among them

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

4. To insure international cooperation in the pursuit of certain common purposes of an economic,

social, cultural or humanitarian character.

BASES OF APPLYING INTERNATIONAL LAW IN LOCAL JURISDICTION

Doctrine of Incorporation

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

clause usually in its Constitution.

Sec. 2, Article 2, 1987 Constitution

The Philippines renounces war as an instrument of national policy, adopts the generally

accepted principles of international law as part of the law of the land and adheres to the policy of peace,

equality, justice, freedom, cooperation, and amity with all nations

CASE: SECRETARY OF JUSTICE vs. LANTION

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

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

HELD:

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

other legislative action is needed to make such rules applicable in the domestic sphere

The doctrine of incorporation is applied whenever local courts are confronted with situations in which

there appears to be a conflict between a rule of international law and the provisions of the local state’s

constitution/statute.

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First, efforts should first be exerted to harmonize them, so as to give effect to both. This is because it is

presumed that municipal law was enacted with proper regard for the generally accepted principles of

international law in observance of the incorporation clause.

However, if the conflict is irreconcilable and a choice has to be made between a rule of international law

and municipal law, jurisprudence dictates that the municipal courts should uphold municipal law.

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

circumstances. The fact that international law was made part of the law of the land does not pertain to

or imply the primacy of international law over national/municipal law in the municipal sphere.

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

given equal standing with but are not superior to, national legislative enactments.

In case of conflict, the courts should harmonize both laws fisrt and if there exists an unavoidable

contradiction between them, the principle of LEX POSTERIOR DEROGAT PRIORI-a treaty may repeal a

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

Constitution, these laws must be stricken out as invalid.

In states where the constitution is the highest law of the law of the land, such as in ours, both statutes

and treaties may be invalidated if they are in conflict with the constitution.

Supreme Court has the power to invalidate a treaty.

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

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

(2) Review, revise, modify, or affirm or appeal or certiorari, as the law or the Rules of Court may provide,

final judgements and orders of lower courts in:

(b) All cases in which the constitutionality or validity of any treaty, international or executive

agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulations in

question.

Doctrine Of Transformation

Requires the enactment by the legislative body of such international law principles as are sought

to be part of municipal law.

Soft Law vs. Hard. Law

Soft law means commitments made by negotiating parties that are not legally binding.

Hard law means binding laws. To constitute law, a rule, instrument or decision must be authoritative and prescriptive. In international law, hard law includes self-executing treaties or international agreements, as well as customary laws. These instruments result in legally enforceable commitments for countries (states) and other international subjects

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THEORIES DEFINING RELATIONSHIP OF INTERNATIONAL LAW WITH DOMESTIC LAW

Theory of Monism

International law and domestic law are one legal system, but international law is superior to the

Domestic Law

It proposes that international law cannot be limited by a State’s Constitution. If a conflict exists

between a Domestic Law and International Law, it is international Law which should prevail.

Theory of Dualism

International Law and Domestic Law are distinct and separate. The application of international

law is limited by the Domestic Law or the State’s Constitution. It would appear that the Philippines is a

dualist state.

SUBJECTS OF INTERNATIONAL LAW

The Subjects and Objects of International Law

A subject of international law is an entity with capacity of possessing international rights and duties and of bringing international claims. This entity is said to be an international person or one having an international personality, on the basis of customary or general international law. (Magallona, 18-19).

A subject of Public International Law is an entity directly possessed of rights and obligations in the international legal order, e.g. a sovereign state, such as the Philippines. (Paras, 43).

An object of Public International Law, on the other hand, is merely indirectly vested with rights and obligations in the international sphere, e.g. a Filipino private citizen is generally regarded not as a subject but an object of Public International Law because, while he is entitled to certain rights which other states ought to respect, he usually has no recourse except to course his grievances through the Republic of the Philippines and its diplomatic officers. (id.).

SUBJECTS:

1. State

A group of people, living together in a fixed territory, organized for political ends under an independent government, and capable of entering into international relations with other states.

Elements:

a. People b. Territory c. Government d. Independence or Sovereignty

Doctrine of Acts of State

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Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country, will not sit in judgement on the acts of the government of another done with in its own territory.

2. Colonies and Dependencies

From the viewpoint of international law, they are considered as part and parcel of the parent state through which all its external relations are transacted with other states.

a. Colony

A dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit in another country, but remain subject to the mother state

b. Dependency

A territory distinct from the country which the supreme sovereign power resides but belongs rightfully to it and subject to the laws and regulations which the sovereign may prescribe

3. Mandates and Trust Territories

There are non-self governing territories which have been placed under international supervision to insure their political, economic, social and educational advancement.

4. The Vatican

In 1928, Italy and Vatican concluded the Lateran Treaty “ for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it absolute and indisputable sovereignty in the field of international relations”

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

The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations"

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two international persons — the Holy See and Vatican City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty" must be made in a sense different from that in which it is applied to other states.

The Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects.

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Despite its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense an "international state"

One authority wrote that the recognition of the Vatican City as a state has significant implication — that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality.

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations.

Principles:

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

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

granted immunity from the civil and administrative jurisdiction of the receiving state over any

real action relating to private immovable property situated in the territory of the receiving state

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

Articles 20-22 of 1961 Vienna Convention on Diplomatic Relations

Lateran Treaty

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

Rome. The Vatican agreed to recognize the state of Italy, with Rome as its capital, in exchange

for formal establishment of Roman Catholicism as the state religion of Italy, institution of

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

sovereignty over Vatican City and the complete independence of the pope. A second concordat

in 1985 ended Catholicism's status as the state religion and discontinued compulsory religious

education.

5. The United Nations (192 Nations)

International organization created at San Fransisco Conference held in the US from April 25 to June 26, 1945. UN succeeded the League of Nations and is governed by a charter that came into force on October 24, 1945

Official Languages of UN:

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French Russian English Spanish Chinese Arabic

Principal Purposes of UN:

1. Maintain international Peace and Security 2. Develop friendly relations among nations 3. Achieve international cooperation 4. Centre for harmonizing actions of nations for attainment of these common goals

Structure of the UN:

a. General Assembly Central organ which all members are represented

2/3 vote required Carlos P. Romulo served as the President of the 4th session of General Assembly

Functions: i. Supervisory ii. Budgetary iii. Constituent iv. Deliberative v. Elective

b. Security Council

Organ responsible for the maintenance of peace and security; undertakes preventive and enforcement actions

Membership:

1. Permanent Members

China

UK

France

Russia

USA 2. Non-Permanent Members

5- from African and Asian States 2- from Latin American States 2- from Western European and Other States 1-from Eastern European States

c. Economic and Social Council

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Exerts effort towards higher standards of living solutions of international economic, social health and related problems, universal respect for and observance of human rights and fundamental freedoms

d. Trusteeship Council Organ charged with the administration of the International Trusteeship System (idle Council)

e. The Secretariat Chief administrative organ of the UN

Current Secretary General(as of 2012)- Ban Ki-Moon of South Korea(8th ) Secretaries-General serve for five-year terms that can be renewed indefinitely

f. International Court of Justice

Judicial organ of UN; world court governed by the statute which is annexed to and made part of the UN charter

Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council.

Election every 3 years Peace palace in Hague, Netherlands Must possess the qualifications reuired in their respective countries for appointment to

the highest judicial offices Cezar Bengzon of SC elected to the ICJ

6. Belligerent Community

They are group of rebels under an organized civil government who have taken up arms against legitimate government. When recognized, considered as a separate state for purposes of conflict and entitle to all the rights and subjected to all the obligations of a full pledged belligerent under the laws of war.

7. International Administrative Bodies Certain administrative bodies created by agreement among states may be vested with

international personality when 2 conditions concur: a. Their purpose are mainly non-political b. They are autonomous and not subject to the control of any state

i. Examples: 1. International Labour Organization 2. Food and Agricultural Organization 3. World Health Organization

CASE: SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER-AQUACULTURE DEPARTMENT(SEAFDEC-AQD), vs. NATIONAL LABOR RELATIONS COMMISSION

Facts:

Southeast Asian Fisheries Development Center-Aqua Culture Department is a department of SEAFD, an

international institution formed by an international agreement of Southeast Asian countries. Private

petitioner sent a letter to private respondent, informing him of his termination due to financial

restraints of the department. Latter was informed that he was going to receive separation pay. Upon

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failure of petitioner to give separation pay, private respondent Lazaga filed a complaint with the Labor

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

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

Issue:

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

Held:

YES, being an intergovernmental organization, SEAFDEC including its Departments (AQD), enjoys

functional independence and freedom from control of the state in whose territory its office is located.

One of the basic immunities of an international organization is immunity from local jurisdiction, i .e, that

it is immune from the legal writs and processes issued by the tribunals of the country where it is found.

The obvious reason for this is that the subjection of such an organization to the authority of the local

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

operations or even influence or control its policies and decisions of the organization; besides, such

subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities

impartially on behalf of its member-states

8. Individuals

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

state in matters involving other states

THE CONCEPT OF STATE

ELEMENTS OF THE STATE:

1. People

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

sufficient in number to maintain and perpetuate themselves

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

that is to say, the people of one state

Citizens, Nationals, Subjects

2. Territory

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

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

needs of the inhabitants

o As a practical Requirement:

It should be big enough to be self- sufficient and small enough to be

easily administered and defended

The Terrestrial or Land Domain

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

Modes of Acquiring Land Territory

1. Discovery and Occupation

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

under the sovereignty of the discovering state

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

sufficiently civilized and can be considered possessing not rights of sovereignty but only

rights of habitation

o Requisites for a valid discovery and occupation

Possession

Administration

Inchoate Title of Discovery

It is acquired by the claimant state pending compliance with the second requirement

which is administration

2. Prescription

Continuous and uninterrupted possession over a long period of time, just like in civil law.

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

acquisition of territory through prescription

Grotius Doctrine if Immemorial Prescription:

Uninterrupted possession going beyond memory

3. Cession( by treaty)

Territory is transferred from 1 state to another by agreement between them (sale,

donation, barter/ exchange and testamentary disposition)

4. Subjugation

Having been previously conquered or occupied in the courses of war of the enemy, is formally

annexed to it at the end of the war, conquer alone inchoate right since it is the formal act of

annexation that complements acquisition.

5. Accretion

Based on Accessio Cedot Principoli accomplished through both natural or artificial processes as

by the gradual and imperceptible deposit of soil on the coasts of the country through the action

of the water or by reclamation projects.

Loss of Territory

a) Dereliction o Physical withdrawal o Abandonment

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b) Cession- agreement between states c) Conquest d) Erosion or other natural causes e) Prescription f) Subjugation g) Revolution

Doctrine of Effective Occupation

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

territory

The Internal Waters

Also called as National or Inland, are those found in the bodies of water within the land mass

and the waters in gulfs and bays up to the point where the territorial waters begin.

The Maritime or Fluvial Domain

This consists of the bodies of water within the land mass and the waters adjacent to the coasts

of a state to a specified limit. Included In the maritime and fluvial domain are the landlocked lakes,

rivers, man0made canals, the waters in certain gulfs, bays and straits, and the territorial sea.

Archipelago Doctrine

The waters around, between and connecting the islands of the archipelago, regardless of their

breadth and dimensions, form part of the internal waters of the Philippines (2nd sentence, Article 1, 1987

Constitution)

To determine the territorial owners

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

o Kinds:

Coastal- situated close to a mainland and may be considered a part thereof

Example: Lofien islands, Norway

Mid-ocean- situated in the ocean or such distance arising from the coasts of frim

land

Example: Philippines

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

Uniform breadth of 10 miles for the territorial sea, a contiguous zone of 18 miles from the

outer limits of the territorial sea, and economic zone or patrimonial sea extending 200

miles from the low- water mark of the coastal

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

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

seas, use of straits for international navigation, continental shelf, concept of an exclusive

economic zone, freedom of the high seas, status of archipelagos and regime of islands.

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

o 2nd Conference: held in 1960 at Geneva Switzerland

o 3rd conference: held in 1970 by the UN which resulted in the adoption of a new

convention of the Law of the Sea and became effective on: November 16, 1994,

signed in Jamaica, 119 out of 150 conference-states

Straight Baseline Method

Drawn connections selected points on the coast without appreciable departure from the general

shape of the coast

Thalweg Doctrine

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

line is laid on the middle of the main navigable channel.

Middle of the Bridge Doctrine

Where there is a bridge over a boundary river, the boundary line is the middle or center of the

bridge.

Bays and Gulfs

o A bay is a well-marked indention in the coast the area of which at least is as large or

larger than, that of the semi- circle whose diameter is a line drawn across its mouth.

Also referred to as the juridical bay

Strait

o Narrow passageways connecting two bodies of water. If the distance between the 2

opposite coast is not more than six miles, they are considered internal.

Canals

Territorial Sea

The belt of the sea located between the coast and internal waters of the coastal state on the one hand

and the high seas on the other, extending up to 12 nautical miles from the low water mark or in case of

archipelagic state, from the baseline.

Philippine Territorial Sea

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

o 3 mile limit rule

Doctrine of Right of Innocent Passage

Means navigation through the terrirorial seas of a state for the purpose of traversing that seas

without entering internal waters or of proceeding to internal waters, or making for the high seas from

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

state.

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Applicable only on passage on territorial sea and not to internal waters. Point of passage

is important

Involuntary entrance may be due to the following:

1. Lack of provisions

2. Unseaworthiness of the vessel

3. Increment weather

4. Other cases of force majeure like pursuit of pirates

Territorial sea vs. Internal waters of the Philippines

Territorial sea – higheas up to 12 nautical miles

Internal waters- all waters internal such as canals

CASE: Portugal vs. India

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

of private persons and civil officials had not been subject to any restrictions beyond routine control.

Merchandise other than arms and ammunition had also passed freely subject only, at certain times, to

customs regulations and such regulation and control as were necessitated by considerations of security

or revenue. The Court therefore concluded that, with regard to private persons, civil officials and goods

in general there had existed a constant and uniform practice allowing free passage between Daman and

the enclaves, it was, in view of all the circumstances of the case, satisfied that that practice had been

accepted as law by the Parties and had given rise to a right and a correlative obligation.

As regards armed forces, armed police and arms and ammunition, the position was different.

As regards arms and ammunition, the Treaty of 1878 and rules framed under the Indian Arms Act of 1878 prohibited the importation of arms, ammunition or military stores from Portuguese India and its export to Portuguese India without a special licence. Subsequent practice showed that this provision applied to transit between Daman and the enclaves.

The finding of the Court that the practice established between the Parties had required for the passage of armed forces, armed police and arms and ammunition the permission of the British or Indian authorities rendered it unnecessary for the Court to determine whether or not, in the absence of the practice that actually prevailed, general international custom or general principles of law recognized by civilized nations, which had also been invoked by Portugal, could have been relied upon by Portugal in support of its claim to a right of passage in respect of these categories. The Court was dealing with a concrete case having special features: historically the case went back to a period when, and related to a region in which, the relations between neighbouring States were not regulated by precisely formulated rules but were governed largely by practice: finding a practice clearly established between two States, which was accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that practice. The Court was, therefore, of the view that no right of passage in favour of Portugal involving a correlative obligation on India had been established in respect of armed forces, armed police and arms and ammunition.

The Court found that the events which had occurred in Dadra on 21-22 July 1954 and which had resulted in the overthrow of Portuguese authority in that enclave had created tension in the surrounding Indian

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district, having regard to that tension, the Court was of the view that India's refusal of passage was covered by its power of regulation and control of the right of passage of Portugal.

Contiguous Zone

This refers to the waters beyond the territorial seas but not in excess of 12 miles from the outer limits of the territorial sea over which the coastal state exercises a protective jurisdiction to prevent the punish infringements of its customs, fiscal immigration or sanitary regulations (1982 Convention on the Sea)

Exclusive Economic Zone

It is that expanse of the sea extending 200 nautical miles from the coast or baselines of the state over which it asserts exclusive jurisdiction and ownership over all living and non-living resources found therein.

Contiguous Exclusive Economic Zone

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

Not a territory but state may exercise limited jurisdiction over it to prevent infringement of customs, fiscal immigration or sanitary regulations

Exclusive for economic

Continental Shelf

It is the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance (Art. 76, par.1, UNCLOS)

High Seas

It is treated as RES COMMUNES or RE NULLIUS, and thus, are not territory of a particular state. These are the waters which do not constitute the internal waters, archipelagic waters, territorial sea and exclusive economic zone of a state. They are beyond the jurisdiction and sovereign rights of States.

Res Nullius Res Communes Freedom of Navigation

Flag State Flag Navigation

Refers to the authority under which a country exercises regulatory control over commercial vessels which is registered under its flag

A vessel which is registered in a foreign country for convenience

The flag is different from the nationality of the owner

THE PHILIPPINE TERRITORY

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Philippine Baseline Laws

1. Normal Baseline Method a. Drawn from the low water mark of the coast, to the breadth claimed, following its

sinuousness and curvatures but excluding the internal waters in the bays and gulfs

2. Straight Baseline Method a. Joining appropriate points may be employed in drawing the baseline from which the

breadth of the territorial seas is measured. (Art. 7 UNCLOS)

Baseline Law

1961 RA. 7046 5446- overlapping zone on Malaysia 9522- They ceded to own some islands which are not suitable for economic zone Tomas Cloma

o A Filipino adventurer and fishing magnate who discovered Kalayaan Island o 1956 Cloma declared separate government from the Philippines o Cloma sold it to the Philippines during the Marcos Regime for P1 only

Treaty of Paris o For $20M, Spain sold the Philippines to US on December 10, 1898

Treaty of Washington o For $100K for the acquisition of the islands not included in the Treaty of Paris Nov. 7,

1900 US- Britain

o January 2, 1930 for the Acquisition of the islands in the South (Sulu, tawi-tawi) Marcos Issued PD 1956 creating kalayaan as a province of Palawan Treaty of Annexation

o Making the Hawaii part of the US

3. Government Defined as the agency through which the will of the state is formulated, realized and expressed.

In International law, it is the instrumentality that represents the state in its dealings with other international persons. The state can assert rights, and is held responsible, through its government.

De Jure- A government in accordance of the law De Facto- A government not in accordance with the law

FORMS OF GOVERNMENT

A form of Government, or form of state of governance, refers to the set of political institutions by which a government of a state is organized in order to exert its powers over a house in the congress body politic. Synonyms include “regime type” and “system of government”.

1. Democracy (Ruled by Majority)

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It is best described by Abraham Lincoln as a form of government that is of the people, by the people and for the people. It is a form of government, which allows people to choose the representatives amongst themselves who are given the rights to form the government. A democracy usually has a standard Constitution that confers certain rights of freedom and expression (and many other rights) to its citizens and expects certain duties from them and a uniform law to govern the entire nation.

Direct or Pure Democracy

One in which the will of the State is formulated or expressed directly and immediately through the people in a mass meeting or primary assembly.

Indirect, Representative or Republican Democracy

One in which the will of the state is formulated and expressed through the agency of a relatively small and select body of persons chosen by the people to act as their representatives.

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

3. Monarchy

Monarchies are one of the oldest political system known, developing from tribal structure with one person the absolute ruler

Monarchy implies rule or the power of government in the hands of a individual who has inherited the role and expects to bequeath it to the descendants. Currently there exist 31 monarchs reigning over 45 extant sovereign monarchies in the world, 16 of which are Commonwealth Realms that formally recognize Queen Elizabeth II as their head of state and Prince Charles as heir.

Kinds of Monarchy:

Absolute monarchy- one in which the ruler by divine right Limited monarchy- one in which the ruler rules in accordance with the constitution

4. Presidential

One in which the state makes the executive constitutionally independent of the legislature as regards his policies and acts

5. Parliamentary

One in which the state confers upon the legislature the power to terminate the tenure of office of the real executive

6. Unitary

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

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7. Federal

One in which the powers of government are divided between 2 sets of organs, one for national affairs and the other for local affairs.

The politics of the Philippines takes place in an organized framework of presidential, representative and democratic republic whereby the president is both the head of state and the head of government within a pluriform multiparty system. This system revolves around 3 branches: the legislative branch (law-making body), the executive branch (law- enforcing body) and the judicial branch (the law- interpreting body).

Executive power is exercised by the government under the leadership of the president Legislative power is vested both the government and the 2 chamber congress- The Senate (the

upper chamber) and the House of Representative (the lower chamber Judicial power is vested in the courts with the Supreme Court of the Philippines as the highest

judicial body

Despotism

It is the form of rule wherein a single leader rulers the entire population and all his or her subjects are considered to be his or her slaves. The Pharaoh of Egypt is an example of this sort of rule. In case of contemporary contention, the term implies tyrannical rule.

Dictatorship

Implies rule by an individual who has complete power over the country. Although there have been several definitions of dictatorship, broadly all the various types and forms of dictatorship tend to exhibit totalitarian characteristics. When the power of the government does not come from the people, is unlimited and tends to expand their scope of powers to control every aspect of people’s life, the form can be termed a dictatorship.

Oligarchy (Rule by Few)

It is the form of government where a small group has the power to govern or rule. Aristotle had coined the term oligarchy as synonym for rule by the rich (which is known as plutocracy) oligarchy now simply refers to rule of the privileged few.

Plutocracy

Refers to form of government, which is run by the rich. A plutocracy is a form of government, which is controlled by a group of extremely wealthy individuals. In today’s world many political analyist aruge there are still some siturations in which private corporations and wealthy individuals have a strong hold over the government, which can be synonymous with plutocracy

Communist Government

It is a form of Government in which the state is governed by a one-party system. This form of government works on the lines of Marxism- Leninism. Thus, the state and the communist party claim to

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act in accordance to the wishes of the working class or the peasantry. Although a communist government claims to implement democratic dictatorship of the proletariat, it tends to incline towards the abolition of the state and implementation of communism.

RECOGNITION

Definition

It is an act by which a state acknowledges the existence of another state, government or belligerent community and indicates willingness to deal with the entity as such under the rules of international law.

DOCTRINES ON RECOGNITION OF GOVERNMENT

1. Wilson/ Tobar Doctrine

Precludes recognition of government established by revolution, civil war, coup d’état or other forms of internal violence until the freely elected representative of the people have organized a constitutional government

2. Estrada Doctrine

Dealing or not dealing with the government established through political upheaval is not a judgement on the legitimacy of the said government (Mexican Minister Genaro Estrada)

3. Stimson Doctrine

Precludes recognition of any government established as a result of external aggression (US Sec of State Henry Lewis Stimson)

EFFECTS OF RECOGNITION OF A STATE OR GOVERNMENT

1. Diplomatic relations 2. Right to sue in courts of recognizing state 3. Right to possession of properties of predecessor on the recognizing state 4. All acts of the recognized state or government are validated retroactively; preventing the

recognizing state from passing upon their legality in its own courts. (Act of State Doctrine)

PRACTICAL CRITERIA FOR RECOGNITION OF A GOVERNMENT

1. it has control of the administrative machinery of the state with popular acquiescence; and 2. It is willing and able to comply with its international obligations

KINDS OF RECOGNITION OF GOVERNMENT

De Jure Recognition De Facto Recognition

Relatively permanent Provisional(duration of armed struggle)

Vests title to properties of government abroad Does NOT vest title to properties of government

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abroad

Brings about full diplomatic relations Limited to certain juridical relations

4. Sovereignty Supreme and uncontrollable power inherent in a State by which that State is governed. The government possesses full control over its own affairs within a territorial geographic area or

limit

CASE: North cotabato vs. GRP gr no. 183591 FACTS: The Memorandum of Agreement on the Ancestral Domain (MOA-AD) brought about by the Government of the republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) as an aspect of Tripoli Agreement of Peace in 2001 is scheduled to be signed in Kuala Lumpur, Malaysia. This agreement was petitioned by the Province of North Cotabato for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order. The agreement mentions "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro; authority and jurisdiction over all natural resources within internal waters. The agreement is composed of two local statutes: the organic act for autonomous region in Muslim Mindanao and the Indigenous People’s Rights Act (IPRA). ISSUE: Whether or not the GRP violated the Constitutional and statutory provisions on public consultation and the right to information when they negotiated and initiated the MOA-AD and Whether or not the MOA-AD brought by the GRP and MILF is constitutional HELD:GRP violated the Constitutional and statutory provisions on public consultation and the right to information when they negotiated and initiated the MOA-AD and it are unconstitutional because it is contrary to law and the provisions of the constitution thereof. REASONING: The GRP is required by this law to carry out public consultations on both national and local levels to build consensus for peace agenda and process and the mobilization and facilitation of people’s participation in the peace process. Sec. 7. The right of people on matters of public concern shall be recognized, access to official records and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development shall be afforded the citizen, subject to such limitations as may be provided by law. Article II Sec. 28. Subject to reasonable conditions prescribed by law , that state adopts and implements a policy of full public disclosure of all its transactions involving public interest. LGC (1991), “require all national agencies and officers to conduct periodic consultations. No project or program be implemented unless such consultations are complied with and approval mus be obtained.” ARTICLE XVII (AMENDMENTS OR REVISIONS) Section 1. Any amendment to, or revision of, this Constitution may be proposed by: 1. The Congress, upon a vote of three-fourths of all its Members; or

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2. A constitutional convention. Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. MOA-AD states that all provisions thereof which cannot be reconciled with the present constitution and laws “shall come into force upon signing of a comprehensive compact and upon effecting the necessary changes to the legal framework.” The president’s authority is limited to proposing constitutional amendments. She cannot guarantee to any third party that the required amendments will eventually be put in place nor even be submitted to a plebiscite. MOA-AD itself presents the need to amend therein. KINDS OF SOVEREIGNTY:

1. Internal – Supreme Authority of a state within its territory (Police Power) 2. External- Does not have any force in foreign territory

Q: Is Sovereign absolute? A: In domestic sphere- YES! In International sphere- NO! CASE: Tanada vs Angara, 272 SCRA 18, May 2, 1997 While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations

By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda — international agreements must be performed in good faith.

"A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken."

By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights.

The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over.

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its sovereign rights under the "concept of sovereignty as auto-limitation."

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The Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain and police power. The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens.

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of . . . cooperation and amity with all nations."

EFFECT OF CHANGE OF SOVEREIGNTY

The effect is that the political laws of the former sovereign are merely suspended but abandoned. As they regulate the relations between the ruler and the rules, these laws fall to the ground ipso facto unless they are retained or re-enacted by positive act of the sovereign.

Non- political law, by contrast, continues in operation, for the reason also that they regulate private relations only, unless they are changed by the new sovereign or are contrary to its institutions.

RECOGNITION OF STATES

Theories on Recognition of States

1. Declaratory School a. Merely affirms an existing fact like the possession by the state of the essential elements b. Discretionary and political

2. Constitutive School a. It is the act of recognition that constitutes the entity into an international person b. Compulsory and legal c. May be compelled once the elements of a state are established

BELLIGERANCY

The status of parties legally at war ( e.i. between nations or if in civil war, government treats other as sovereign power)

Effects of belligerency: relations of warring parties determined by laws of war, granting of belligerency rights. Neutral nations abstain from taking sides.

CONDITIONS RECOGNITION OF BELLIGERENCY

1. There must be an organized civil government directing the rebel forces; 2. The rebels must occupy a substantial portion of the territory of the state; 3. The conflict between the legitimate government and the rebels must be serious,

making the outcome uncertain; and 4. The rebels must be willing and able to observe the laws of war.

EFFECTS OF RECOGNITION OF BELLIGERENCY

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1. Responsibility for the acts of rebels resulting to inquiry to nationals of recognizing state shall be shifted to rebel government

2. The legitimate government recognizing the rebels as belligerents shall observe laws or customs of war in conducting hostilities

3. Third states recognizing belligerency should maintain neutrality

Recognition is only provisional and only for purposes of hostilities The Principle of State Continuity It means that the legal existence of a state continues notwithstanding changes in the size of its population or territory or in the form or leadership of its government as long as the four essential elements of statehood are retained.

Creation of New State

I. By Revolution (Philippines) II. By peaceful acquisition of independence(Malaysia)

III. By unification of Several (Italy) IV. By Secession (Bangladesh ) V. By Agreement (Netherlands)

VI. By attainment of Civilization (Japan)

Extinction of the State

I. Overthrow of government resulting to anarchy (Yugoslavia) II. Emigration on masses of its population (Timbuktu)

III. Annexation (Vietnam) IV. Merger or Unification (Germany) V. Dismemberment (Yugoslavia)

VI. Dissolution VII. Partial Loss of Independence (Hawaii)

FUNDAMENTAL RIGHTS OF STATES

1. Right to Existence and Self-Defense a. Most comprehensive as all the rights of state flow from it b. State may take measures including the use of force as may be necessary to counteract

any danger to its existence

Aggression The use of armed force by a state against the sovereignty, territorial integrity or political independence of another State or in any other manner inconsistent with the Charter of the United Nations as set out in this definition

ACTS OF AGRESSION

I. Invasion or attack of a state

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II. Bombardment of state III. Blockade of ports or coasts IV. Use of armed forces within a state in contravention to any agreement V. Action of state in allowing its territory for an act of aggression against a third state

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

REQUISITE FOR PROPER EXERCISE OF RIGHT OF SELF-DEFENSE

a. Armed attack b. Self-defensive action taken by the attacked state must be reported immediately to the Security

Council c. Such action shall not in any way affect the right of the Security Council to take at any time action

as it deems necessary to maintain or restore international peace and security

Collective Self- Defense Right of state to come to the defense of a state whose situation meets the condition of legitimate individual self-defense under the UN Charter Abatement Doctrine When conditions in the territory of a neighbouring state might result in anarchy of disorder and the authorities of the state are unable to restore order and prevents spinning over the territory of another the latter has the duty to intervene even by armed force to restore order in the border and to end the chaos.

2. Right of Sovereignty and Independence

Sovereignty It is the totality of the powers, legal competence, and privileges arising from customary international law, and not dependent on the consent of another state. Independence Means freedom from control by other state or group of state and not freedom from the restrictions that are binding on all states forming the family of nations; carries with it by necessary implication the correlative duty if non- intervention Intervention An act by which a state interferes with the domestic or foreign affairs of another state through the employment of force or threat which may be physical, political or economic. WHEN INTERVENTION SANCTIONED:

1. As an act of self-defense 2. When decreed by the Security Council as a preventive or enforcement action for the

maintenance of international peace and security 3. When such action is agreed upon in a treaty 4. When requested from fellow states or from the UN by the parties to a dispute or a state beset

by rebellion

Drago Doctrine

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

3. Right of Equality Every state is entitled to the same protection and respect as are available to other states under the

rules of international law. Doctrine of State Immunity As a consequence of the independence, territorial supremacy and equality, a state enjoys immunity from the exercise of jurisdiction (legislative, executive or juridical) by another state, unless it has given consent, waives its immunity, or voluntarily submitted to the jurisdiction of the court concerned.

THE STATE IS DEEMED TO HAVE WAIVED ITS IMMUNITY:

A. When it gives consent at the time the proceeding is instituted B. When it takes steps relating to the merits of the cases before invoking immunity C. When by treaty or contract it had previously given consent D. When by law or regulation in force at the time complaint arose it has indicated that it will

consent to the institution of the proceedings

4. Right to Territorial Integrity and Jurisdiction

The territory of a state usually consists of the terrestrial domain, maritime and fluvial domain and the aerial domain

5. Right of Legation

It is the right of the state to maintain diplomatic relations with other states. The right to send diplomatic representatives is known as the active right of legation. The right to receive diplomatic representatives is known as the passive right of legation.

AGENTS OF DIPLOMATIC INTERCOURSE

1. Head of state Embodiment of and represents, the sovereignty of the state Enjoys the right to special protection for his physical safety and the preservation of his honour

and reputation His quarters, archives, property and means of transportation are inviolate Principle of Extraterritoriality

2. Foreign Secretary or Minister 3. Members of Diplomatic Service 4. Special Diplomatic Agents appointed by Head of the State 5. Envoys Ceremonial

FUNCTIONS OF DIPLOMATIC MISSIONS

1. Representing sending state in receiving state

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2. Protecting in receiving state interests of sending estate and its nationals 3. Negotiating with government of receiving state 4. Promoting friendly relations between sending and receiving states and developing their

economic, cultural and scientific relations 5. Ascertaining by all receiving state and reporting thereon to government of sending state 6. IN some cases, representing friendly governments at their request

Agreation

Process in appointment of diplomatic envoy where state resort to an informal inquiry(enquiry) as to the acceptability of a particular envoy, to which the receiving state responds with an informal conformity (agreement)

Letre De Creance (Letter of Credence)

With the name, rank, and general character of his mission, and a request for a favourable reception and full credence

KINDS OF CONSULS

CONSULES MISSI CONSULES ELECTI

Professional or career consuls who are required to devote their full time to discharge their duties

Perform consular functions only in addition to their regular callings

Nationals of sending state May or not be nationals of the sending state

Ranks

1. Consul- general- heads several consular districts, or one exceptionally large consular districts 2. Consul- takes charge of a small district or town port 3. Vice- consul- assists the consul 4. Consular agent- usually entrusted

PRIVELEGES AND IMMUNITIES ACCORDED TO DIPLOMATIC ENVOY

1. Inviolability of their correspondence, archives and other documents 2. Freedom of movement and travel 3. Immunity from jurisdiction for acts performed in official capacity 4. Exemption from certain taxes and customs duties

Immunities and privileges are also available to members of the consular post their

families and their private staff Waiver of immunities may be by the appointing state

CASE: Liang vs. People, 323 SCRA 652 (2000) FACTS: Petitioner is an economist for ADB who was charged by the Metropolitan Trial Court of Mandaluyong city for allegedly uttering defamatory words against her fellow worker with two counts of grave oral defamation. MeTC judge then received an office of protocol from the Department of Foreign Affairs, stating that petitioner is covered by immunity from legal process under section 45 of the agreement bet ADB and the government. MeTC judge, without notice, dismissed the two criminal cases.

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Prosecution filed writ of mandamus and certiorari and ordered the MeTC to enforce the warrant of arrest. ISSUES: Whether or not the petitioner is covered by immunity under the agreement and that no preliminary investigation was held before the criminal cases were filed in court. RULING: He is not covered by immunity because the commission of a crime is part of the performance of official duty. Courts cannot blindly adhere and take on its face the communication from the DFA that a certain person is covered by immunity. That a person is covered by immunity is preliminary. Due process is right of the accused as much as the prosecution. Slandering a person is not covered by the agreement because our laws do not allow the commission of a crime such as defamation in the name of official duty. Under Vienna convention on Diplomatic Relations, commission of a crime is not part of official duty. On the contention that there was no preliminary investigation conducted, suffice it to say that preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar. Being purely a statutory right, preliminary investigation may be invoked only when specifically granted by law. The rule on criminal procedure is clear than no preliminary investigation is required in cases falling within the jurisdiction of the MeTC. Besides, the absence of preliminary investigation does not affect the court’s jurisdiction nor does it impair the validity of the information or otherwise render it defective.

Extraterritoriality

Applies only to PERSONS and is based on treaty or convention credited because of rise of nationalism and sovereign equality of states.

Exterritoriality

Exception of the PERSONS AND PROPERTY from local jurisdiction on basis of international customs.

Treaty

An international agreement concluded between states in written form and governed by international law whether embodied in a single instrument or in two or more related instruments. (art. 2 Vienna Convention on the Law of Treaties, 1969)

Taiwan cannot enter into a treaty

REQUISITES OF A VALID TREATY

1. Entered into by parties having treaty-making capacity 2. Through their authorized organs or representatives 3. Without attendance of duress, fraud, mistake, or other vices of consent 4. Lawful subject matter and object 5. Ratification in accordance with their respective constitutional processes

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

A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.”

Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities, should apply in the instant case. The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Sec. 21 Art. VII, which respondent invokes reads: “No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all the Members of the Senate. Sec. 25 Art. XVIII provides: “After the expiration in 1991 of the Agreement between the RP and the US concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in and when the Congress so requires, ratified by a majority of votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the Senate by the other contracting state”. The first cited provision applies to any form of treaties and international agreements in general with a wide variety of subject matter. All treaties and international agreements entered into by the Philippines, regardless of subject matter, coverage or particular designation requires the concurrence of the Senate to be valid and effective.

In contrast, the second cited provision applies to treaties which involve presence of foreign military bases, troops and facilities in the Philippines. Both constitutional provisions share some common ground. The fact that the President referred the VFA to the Senate under Sec. 21 Art. VII, and that Senate extended its concurrence under the same provision is immaterial.

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

A: VFA still binding on its/ is still a binding treaty because it is not our business to dwell into the domestic law of the other contracting party; we are satisfied with the Senator’s pronouncement that the US will recognize it.

Attentant Clause

Assassination of head of the State or any member of his family is not regarded as political offence for purpose of extradition. Also applies to genocide

STEPS IN TREATY MAKING PROCESS

1. Negotiation

Discussion of the provisions of the proposed treaty, undertaken by the representatives of the contracting parties who are provided with credentials known as full powers of PLENIS POUVIORS

2. Signature

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Primarily intended as a means of authenticating the instrument and symbolizing the good faith of the contracting parties.

Practice Aternat

Arrangement under which each negotiator is allowed to sign first on the copy of the treaty which he will bring home to his own country, the purpose being to preserve the formal appearance of equality among the contracting states and to avoid delicate questions of precedence among signatories.

3. Ratification

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

4. Exchange of Instruments of ratifications 5. Registration with the UN

Concordat

A treaty or agreement between ecclesiastical and civil powers to regulate the relations between the church and the state in those matters which, in some respect are under the jurisdiction of both.

DOCTRINES IN TREATIES

Jus Cogens

A jus cogens or peremptory is a norm which States cannot derogate or deviate from in their agreements. It is a mandatory norm and stands on a higher category than a jus dispotivum norm which States can set aside or modify by agreement

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

CASE: Isabelita Vinuya vs. Executive Secretary Romulo Held: Certain types of cases often have been found to present political questions. One such category involves questions of foreign relations. It is well-established that "[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative--'the political'--departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." The US Supreme Court has further cautioned that decisions relating to foreign policy are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility. Pacta Sunt Servanda It simply means that treaties must be observed in good faith despite hardship on the contracting state, such as conflicts between the treaty and its constitutions or prejudice to the national interst as a result of the operation of the treaty.

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As a general rule, a party must comply with the provisions of a treaty and cannot ignore or modify it without the consent of the other signatory. Willful disregard or violation of treaties without just cause is frowned upon by the society of nations. Clausula Rebus Sic Stantibus

1. It applies only to treaties of indefinite duration 2. The vital change claimed as jurisdiction for the discontinuance of the treaty must have been

unforeseen or unforeseeable and must not have been caused by the party invoking the doctrine

3. The doctrine must be invoked within a reasonbale time from the occurrence of the change asserted.

4. The doctrine cannot operate retroactively upon the provisions of the treaty executed prior to the change in circumstance (Salonga and Yap, 310)

CASE: Fisheries jurisdiction Case- UK vs. Iceland Iceland claims that its agreement with the UK not to extend its fishereies jurisdiction was no longer binding due to fundamental change of circumstances Held: For this to be a ground for invoking the termination of a treaty, it should have resulted in a radical transformation of the extent of the obligations still to be performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken. This is not the case here, Iceland cannot validly invoke Rebus Sic Stantibus in claiming the termination of the treaty. Most Favored Nation Clause Pledge made by a contracting party to a treaty to grant to other party treatment not less favorable than that which had been given or may be granted to the most favored among parties. TERMINATION OF TREATIES

1. Expiration of term 2. Accomplishment of purpose 3. Impossibility of performance 4. Loss of subject matter 5. Desuetude

o Desistance of parties by express mutual consent or exercise of right of renunciation when allowed.

6. Extinction of one parties; if treaty is bipartner 7. Novation 8. Occurrence of vital change of circumstance 9. Outbreak of war 10. Voidance of treaty because of:

a. Defect in constitution b. Violation of its provision by one party c. Incompatibility with International law

11. Application of the doctrine of the Rebus Sic Stantibus 12. The doctrine of Jus Cogens (or the emergence of a new preemptory norm of general

international law which renders void any existing treaty conflicting with such norm)

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Protocol de Cloture An instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the contents of treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. It is not the treaty and does not require the concurrence of the senate. (Tanada vs. Angara) NATIONALITY AND STATELESSNESS Nationality Membership on a political community with all its concomitant righrs and obligations. It is the tie that binds the individual to his state from which he can claim protection and whose law he is obliged to obey Citizenship Membership in a political community whci is personal and more or less permanent in character Doctrine of Effective Nationality Expressed in Art. 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws that a person having more than one nationality shall be treated as if he had only one- either the nationality of the country in which he is habitually and principally resident or the nationality of the country with chich the circumstances he appears to be in face most closely connected. CASE: Frivaldo v. Comelec

That Nottebohm case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals."

Statelessness

Condition or statues of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another

De Jure Statelessness

It is where the exists no recognized state in respect of which the subject has a legally meritorious basis to claim nationality

De Facto Statelessness

It is where the subject may have a legally meritorious claim but is precluded from asserting it because of practical considerations such as cost, circumstances of civil disorder, or the fear of persecution

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ALIENS

Definition

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

Treatment of Aliens

Flowing from its right to existence and as an attribute of sovereignty, no state is under obligation to admit aliens. The state can determine in what cases and under what conditions it may admit aliens.

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

Expulsion of alien considered undesirable by the local state, usually not necessarily to his own state

b. Reconduction Forcible conveying of aliens back to their home state without any formalities

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

Doctrine of State Responsibility

State may be held liable for injuries and damages sustained by the alien while in the territory of the state provided:

1. The act or omission constitutes an international delinquency 2. The act or omission is directly or indirectly imputable to the state 3. Injury to the claimant state indirectly because of damage to its national

Calvo Clause

It is a stipulation by virtue of which an alien waives or restricts his right to appeal to its own state in connection with any claim arising from a contract with foreign state and limits himself to the remedies available under the law of the state.

Drago Doctrine

In 1902, Great Britiain, Italy and Germany established a bloackade against Venezuela in order to enforce certain contractual and other claims against it, leading Foreign Minister Jose Maria Drago of Argentina to formulate the doctrine that “ a public debt cannot give rise to the right of armed intervention”.

This principle was later adopted in the Second Hague Conference, but subject to the qualitfication that the debtor state should not refuse or neglect to reply to an offer of arbitration or after accepting the offer, prevent any compromise from being upon, or after the arbitration, fail to submit to the award. This qualification is known as the PORTER RESOLUTION

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Refugees

A person who, owing to a well-founded fear of being persecuted for treasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable or wing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former, habitual residence, is unable or owing to such fear, is unwilling to return to it. (Convention Relating to the Status of Refugees, Art.1 a(2) ).

Non- refoulment

Prohibits state to return or expel a refugee to the territory where he escaped because his life or freedom is threatened. The State is under obligation to grant temporary asylum. (Refugee Convention of 1951)

Right of Asylum

Refuge in another state. Every foreign state can be at least a provisional asylum for any individual, who being persecuted in his home State, goes to another state, in the absence of any international treaty stipulating the contrary, no state is, by international laws, obliged to refuse admission into its territory to such a fugitive or in case he has been admitted, to expel him or deliver him up to the prosecuting state.

The right of asylum is not a right possessed by an alien to demand that a state protect him and grant him asylum. At present, it is just a PRIVILEGE granted by a state to allow an alien escaping from persecution of his country for political reasons to remain and to grant him asylum.

Diplomatic Asylum

Refugee in another state for political offense, danger to life or no assurance of due process

Extradition

The removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government (P.D. 1069, Sec 2 (a)).

Specialty and Double criminality:

Requirements for the exercise of extradition:

1. The Principle of speciality requires that the requesting state must specify the crime under the extradition treaty for which the fugitive or accused is sought, and that he is to be tried only for the offense specified in the treaty.

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2. The principle of double criminality requires that an offense must be punishable under the law of both the extraditing state and the requesting state for the accused to be extradited.

GENERAL PRINCIPLES IN EXTRADITION

1. Basis: a TREATY based on consent of the parties

2. PRINCIPLE OF SPECIALTY

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

extradition and included in the list of offenses in the treaty

Non- List Type of Treaty

o Offenses punishable under the laws of both states by imprisonment of 1 year or

more are included among the extraditable offenses(less than 1 year, can’t

extradite)

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

4. Political and Religious offenders are GENERALLY NOT SUBJECT to extradition

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

OR AGAINST THE INTEREST OF THE DEMANDING STATE.

CASE: Wright vs. CA

Australia and the Government of the Philippines in the suppression of crime, entered into a Treaty of Extradition on the 7th of March 1988. The said treaty was ratified in accordance with the provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the Senate on September 10, 1990 and became effective 30 days after both States notified each other in writing that the respective requirements for the entry into force of the Treaty have been complied with. Petitioner contends that the provision of the Treaty giving retroactive effect to the extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI of the Constitution. ISSUE: Can an extradition treaty be applied retroactively? HELD: YES, Applying the constitutional principle, the Court has held that the prohibition applies only to criminal legislation which affects the substantial rights of the accused. This being so, there is no absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive application with respect to offenses committed prior to the Treaty's coming into force and effect, violates the Constitutional prohibition against ex post facto laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified.

CASE: USA vs. Purganan

The ultimate purpose of extradition proceedings in court is only to determine whether the extradition

request complies with the Extradition Treaty, and whether the person sought is extraditable.

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The proceedings are intended merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed therein.

By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

Extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a court’s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity.

General Rule:

Prospective extraditees not entitled to notice and hearing before warrants for their arrest can be issued to the right to bail and provisional liberty while the extradition proceedings are pending

Exception:

1. Once bail is granted, he will not be flight risk or danger to community 2. There exist special, humanitarian, and compelling circumstances

Principles on Extradition:

1. No State is obliged to to extradite unless there is a treaty 2. Differences in legal system can be an obstacle to interpretation of what the crime is 3. Religious and political offenses are not extraditable

Procedure is normally through diplomatic channels (how extradition rules can be bypassed: US vs.

Alvarez- Machain; how due process requirements work in an extradition case: Secretary of Justice vs. Lantion; USA vs. Purganan and Crespo)

CASE: Hong Kong v. Olalia G.R. No. 153675 Facts: The Philippines and Hong Kong signed an “Agreement for the Surrender of Accused and Convicted Persons.” Private respondent Muñoz was charged before the Hong Kong Court. Department of Justice (DOJ) received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent Muñoz. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent. The NBI agents arrested and detained him. Muñoz filed a petition for bail which was denied by Judge Bernardo, Jr. holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high “flight risk.” After Judge Bernardo, Jr. inhibited himself from further hearing the case, it was then raffled off to Branch 8 presided by respondent judge. Private respondent filed a

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motion for reconsideration of the Order denying his application for bail and this was granted by respondent judge. ISSUE Whether or not the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in allowing private respondent to bail? HELD

No, the trial court did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in allowing private respondent to bail.

Accordingly, although the time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditee’s rights to life, liberty, and due process guaranteed by the Constitution. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, particularly the Universal Declaration of Human Rights, to which the Philippines is a party.

We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed “clear and convincing evidence” should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by “clear and convincing evidence” that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of “clear and convincing evidence. WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of “clear and convincing evidence.” If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch.

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

Criminal Proceedings: Extradition proceedings:

-Full blown trial -Summary in nature

-proof beyond reasonable doubt - allow admission of evidence in a less stringent standard

-judgment becomes executory upon being final -the President has discretion rendered even though the court deems it proper extraditable.

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

arrested. All that is necessary for the extradite to be arrested is a prima facie finding by the judge that

the petition for extradition and its supporting documents that

1. They are sufficient in form and substance 2. they show compliance with the extradition treaty and law, 3. person sought is extraditable.