Jean Jamailah Tomugdan

JD - 2

Right of Legation
A. Right of legation

Also known as the “right of diplomatic intercourse”. This refers to the right of State to send & receive
diplomatic missions, which enables the States to carry on friendly intercourse. It is not a natural or inherent
right, but exists only by common consent. No legal liability is incurred by the state for refusing to send or
receive diplomatic rep. Governed by Vienna Convention on Diplomatic Relations

Agents of diplomatic intercourse

a. Head of state
b. Foreign office

Establishment of Resident Missions

States carry on diplomatic intercourse through permanent missions established in capitals of other states.
Mission is composed of:
a. Head of mission
-ambassadors/ nuncios, envoys/ministers/internuncios, charges d’affaires
b. Diplomatic staff
c. Administrative & technical staff
d. Service staff
-engaged in the domestic services of the mission

Diplomatic corps
Doyen or head of this body- Papal Nuncio or oldest ambassador, or in absence of ambassadors, the oldest
minister plenipotentiary

Appointment of envoys
In Philippines it is the President who appoints, sends & instructs the diplomatic & consular representatives, &
his prerogative to determine the assignment of country’s diplomatic rep can’t be questioned

Functions & duties

a. Representing the sending state in the receiving
b. Protecting in the receiving state the interests of the sending state & its nationals, w/in the limits
allowed by int’l law
c. Negotiating w/the gov’t of the receiving state
d. Ascertaining by all lawful means the conditions in the receiving state & reporting these to the
sending state
e. Promoting friendly relations between the sending state & receiving state & developing their
economic, cultural & scientific relation

Diplomatic immunities & privileges

a. Personal inviolability
b. Inviolability of premises & archives
c. Right of official communication
Jean Jamailah Tomugdan
JD - 2

d. Immunity from local jurisdiction

e. Exemption from taxes & customs duties
f. Other privileges which include the freedom of movement & travel in the territory of the receiving
state; exemption from all personal services & military obligation

Duration of immunities & privileges

Enjoyed from the moment he enters the territory of receiving state & shall cease only the moment he leaves
the country, or on expiry of a reasonable time in w/c to do so; although w/respect to official acts, immunity
shall continue indefinitely.
Available even in transitu when traveling through a 3rd state on the way to or from the receiving state

Waiver of Immunities
made only by the gov’t of sending state if it concerns the immunities of the head of mission; in other cases, the
waiver may be made by either the government or by the chief mission. Waiver of this privilege does not
include waiver of immunity in respect of execution of judgment; a separate waiver for the latter is necessary

Termination of Diplomatic mission

Death, resignation, removal or abolition of office, recall by sending state, dismissal by receiving state, war
between receiving & sending state, or extinction of the state

B. Consular relations

Consuls- state agents residing abroad for various purposes but mainly in the interest of commerce &
navigation

KINDS OF CONSULS:
a. Consules missi-
Professional & career consuls, & nationals of appointing state
b. Consules electi-
Selected by appointing state either from its own citizens or from among nationals abroad

RANKS
a. Consul general
b. Consul
c. Vice consul
d. Consular agent

APPOINTMENT
Letters patent
Exequatur

FUNCTIONS
Commerce & navigation, issuance of visa, etc
Jean Jamailah Tomugdan
JD - 2

IMMUNITIES & PRIVILEGES

 Freedom of communication in cipher or otherwise
 Inviolability of archives but not of the premises where legal processes may be served & arrests
made
 Exempt from local jurisdiction for offenses committed in the discharge of official functions
 Exempt from testifying on official communications or on matters pertaining to consular
functions
 Exempt from taxes, customs duties, military/jury service
 May display their national flag in the consulate

TERMINATION OF CONSULAR MISSION

Withdrawal of exequatur; extinction of state; war
Jean Jamailah Tomugdan
JD - 2

Treaties
Treaty acc. to the 1969 Vienna Convention on the Law of Treaties - an international agreement
concluded bet States in written form and governed by international law, whether embodied in a single
instrument or in two or more instruments, and whatever its particular designation.

Other names for international agreements: convention, pact, protocol, agreement, arrangement, accord, final
act, general act, exchange of notes.

Municipal Law concept: executive agreement is not a treaty (Commish of Customs v. Eastern Sea Trading).
International law standpoint: equally binding as treaties.

Form.
Art. 2 of the Vienna Convention: treaties should be in writing.
Art. 3: an unwritten treaty does not affect its legal force.
1969 Vienna Convention: only treaties executed bet States
1986 Vienna Convention on Treaties for Internatl Orgs: treaties bet States and Intl Orgs

Requisites for validity.

a. Treaty-making capacity
b. Competence of the rep/organ concluding the treaty
c. Parties must freely give consent
d. Object and subject matter must be lawful
e. Ratification in accordance with constitutional processes of the parties concerned

Doctrine of Unequal Treaties. Treaties which have been imposed thru coercion or duress of an unequal
character is VOID.

Doctrine of Jus Cogens. Customary international law has the status of a peremptory norm of
international law, accepted and recognized by the international community of states as a rule from which
no derogation is permitted. Treaty that contravenes jus cogens norms are invalid.

Treaties and Executive Agreements. Treaties require Senate concurrence for validity. They refer to a) basic
political issue, b) change in national policy, c) permanent international arrangements. Executive Agreements
do not require concurrence and refer to a) adjustment of detail carrying out well-established national policies
and b) temporary arrangements.
a. Bayan v. Exec Sec. We cannot require the US to submit the V.F.A. to the US Senate for concurrence. It
is inconsequential if US treats the VFA as a mere exec agreement bec. under international law,
executive agreements are just as binding as treaties.
b. Memo Circ No. 89. W/N an international agreement is purely an executive agreement – matter
referred to DFA Secretary who shall make the appropriate recommendation to the President.
c. Exchange of Notes. A record of a routine agreement similar to the private law contract. Agreement
consists of the exchange of two documents, each of them signed by the rep of the other. Signatories
are either government Ministers, diplomats or department heads. This technique is resorted to bec of
its speedy procedure and to avoid process of legislative approval.
Jean Jamailah Tomugdan
JD - 2

2. Treaty-making Process.

a. Negotiation – reps usually have the credentials known as pleine pouvoirs (full powers) emanating from
competent authority that designates a person to represent. Representative can also either be a) the Head
of State, b) Head of Government, c) Foreign Minister, d) head of diplomatic missions, or e) rep accredited
to an international conference or organization.
b. Signing of the treaty. Principle of alternat – order of naming the plenipotentiary is varied. Each party is
named and its plenipotentiary signs muna his own copy.
c. Ratification. State expresses its willingness to be bound by the treaty thru confirmation. Our President
ratifies the treaty, subject to the concurrence of 2/3 of all the members of the Senate. President is vested
with authority to a) deal with foreign states, b) extend or withhold recognition, c) maintain diplomatic
relations, d) enter into treaties, and otherwise e) transact the business of foreign relations. Kahit signed
na by the rep, President still has the discretion of w/n to ratify a treaty. Without his signature, the Exec
Sec or DFA Sec may not be compelled by mandamus to transmit copy of the treaty for Senate concurrence.
d. Entry into force. In the absence of a provision that states when it shall take force, the treaty enters into
force as soon as the consent of all parties to bound is established.

Accession/Adhesion – non-signatory State becomes a party to a treaty upon invitation or permission of

the contracting parties.

Reservation – unilateral statement where a State purports to exclude or modify the legal effect of certain
provisions of a treaty. If the reservation is compatible with the object and purpose of the treaty, State
remains a party.

When non-signatories may be bound by a treaty. Pacta tertiis nocent nec prosunt. Treaties cannot impose
obligations upon States not parties to them. Exceptions: a) Accession/Adhesion and b) Most Favored Nation
Clause where a contracting State entitled to the clause may claim the benefits in a separate agreement.

Pacta sunct servanda, treaties must be observed in good faith.

State may even modify local laws to make them conform to the treaty and avoid international
embarrassment. In the Philippines, treaties may be declared invalid if contrary to the Constitution.

Rebus sic stantibus, contracting State’s obligations under a treaty terminates when a vital or fundamental
change of circumstances occurs. State is allowed to unilaterally withdraw from a treaty because of the
“disappearance of the foundation upon which it rests.” RULE DOES NOT OPERATE AUTOMATICALLY.

Requisites for valid invocation:

1) Change is so substantial that foundation of the treaty has altogether disappeared
2) Change is unforeseen or unforeseeable at the time of the perfection of the treaty
3) Change was not caused by the party invoking the doctrine
4) Doctrine is invoked within a reasonable time
5) Duration of the treaty is indefinite
6) Doctrine cannot operate retroactively, i.e. it must not adversely affect provisions already complied
with.

Interpretation of Treaties must be in good faith, in accordance with the ordinary meaning given to the
terms in their context and in light of its objects and purposes.

Amendment/Modification require the consent of all parties, but if allowed by the treaty itself, two States
may modify a provision only insofar as they are concerned.
Jean Jamailah Tomugdan
JD - 2

Grounds for Termination of Treaties

a) Expiration of term or Withdrawal of a party
b) Extinction of one of the parties in a bipartite treaty when the rights and obligations under the treaty
would not devolve upon the State succeeding the extinct State
c) Mutual agreement of all parties
d) Denunciation or desistance by one of the parties (Right of Denunciation)
e) Supervening impossibility of performance
f) Conclusion of a subsequent inconsistent treaty
g) Loss of the subject matter
h) Material breach or violation of the treaty
i) Rebus sic stantibus
j) Outbreak of war between the parties UNLESS the treaty precisely relates to the conduct of war
k) Severance of diplomatic relations (only if indispensable for application)
l) Doctrine of jus cogens or the emergence of a new peremptory norm
Jean Jamailah Tomugdan
JD - 2

Nationality and Statelessness

Nationality. Membership in a political community with its concomitant rights and duties.

1930 Hague Convention:

1) State determines who its nationals are under its own law.
2) Any question as to w/n a person is a national of a State shall be determined in accordance with the law of
that State.

Modes of acquiring nationality

1) Birth – jus sanguinis (by blood) and jus soli (by place of birth)
2) Naturalization – thru a) marriage, b) legitimation, c) option/election, d) acquisition of domicile, e)
appointment to govt office, f) grant on application. In the Philippines, naturalization is thru 1) judicial
process, 2) legislative process, 3) election, or 4) marriage. However, there is no obligation on the part of
the State to recognize a person’s newly acquired nationality. Municipal law may een prohibit the
renunciation of one’s nationality, i.e. the doctrine of indelible allegiance.
3) Repatriation – recovery of nationality by individuals who were natural-born citizens but have lost their
nationality. RA 8171 on repatriation of women who lost Filipino citizenship by marriage to aliens and
repat of former NB-Filipinos who lost their Filipino citizenship.
4) Subjugation
5) Cession

Loss of Nationality
1) Release e.g. German nazis
2) Deprivation e.g. Filipinos entering into military service of another State
3) Renunciation e.g. C.A. No. 63
4) Substitution, when former nationality is ipso facto lost by naturalization abroad.

Multiple Nationality – more than one nationality because of concurrent application of the municipal law of
two or more States. In the Philippines, dual allegiance is inimical to national interest. Sec. 5, Art. IV.

Solutions to multiple nationality in the 1930 Hague Convention on the Conflict of Nationality Laws
a) Person may be regarded as its national by each of the States
b) In a third State, a person shall be treated as if he only had one nationality. Principle of effective
nationality: either where he habitually and principally resides or where he appears in fact to be most
closely connected.
c) Person may renounce one of them with the permission of the renounced State. Permission shall not
be refused if person has habitual residence abroad.

Statelessness - status of having no nationality as a consequence of being born without it, or as a result of
deprivation or loss of nationality

1954 Convention Relating to the Status of Stateless Persons

Stateless Persons are granted, for as long as it is favorable to that accorded to the State’s nationals:
a) Freedom to practice their religion
b) Access to the courts of law
c) Rationing of products in short supply
Jean Jamailah Tomugdan
JD - 2

d) Elementary education
e) Public relief and assistance
f) Labor legislation and social security
Also accorded treatment relative to
a) Acquisition of movable and immovable property
b) Right of association in non-poli and non-profit associations and trade unions
c) Gainful employment and practice of liberal professions
d) Housing and public education other that elementary education
e) Freedom of movement
Jean Jamailah Tomugdan
JD - 2

Treatment of Aliens
General Rule, no State is under obligation to admit aliens (flowing from its right of existence and as an
attribute of sovereignty). State has the power to regulate the entry and stay of aliens.

Expulsion or deportation predicated on the ground that 1) the stay of the alien is a menace to the security of
the State, 2) his entry was illegal, 3) permission to stay has expired, or 4) he has violated any limitation or
condition prescribed for his admission and continued stay.

Reconduction is the forcible conveying of aliens back to their home State. Destitute aliens, vagabonds, aliens
without docs, alien criminals, etc may be reconducted to the frontier without any formalities.

Doctrine of State Responsibility. State is under obligation to make reparations to another State for the
failure to fulfill its primary obligation to afford, in accordance with international law, the proper protection
due to the alien national of the latter State. State may also be held liable for injuries and damages sustained by
the alien while in the territory of the State if:
1) The act or omission constitutes an international delinquency – amounting to an outrage, to bad
faith, willfull neglect of duty or insufficiency of government action*
2) The act or omission is directly or indirectly imputable to the State – State does not make
reasonable efforts to prevent injury, or having done so unsuccessfully, fails to repair such injury.
a. Acts of Government Officials – acts of primary agents of the State give rise to direct state
responsibility. If officer acts beyond his authority, it is an act of a private individual.
b. Acts of private individuals – must be shown that there was an actual or tacit complicity of
the government in the act, either by directly approving it or in the patent negligence in
taking measures to prevent injury. Claimant has the burden of proving negligence.
3) Injury to the claimant State indirectly because of damage to its national

*International Standard of Justice – standard of the “reasonable State”

Doctrine of Equality of Treatment – laws are applicable not only to aliens but to nationals as well

Enforcement of Alien’s Claim

1) Exhaustion of local remedies – requirement may be dispensed with if there are no remedies to
exhaust, the courts are corrupt, there is no adequate machinery for the administration of justice, or
the international delinquency results from an “act of State”.
a. Calvo Clause – stipulation by which an alien waives or restricts his right to appeal to his
own state and agrees to limit himself to the remedies available under local laws.
2) Resort to diplomatic protection – after exhaustion, alien must avail of assistance of his state
a. Tie of nationality must exist from the time of injury until the time claim is finally settled.
b. UN may file a diplomatic claim on behalf of its officials

Modes of Enforcement of Claims

Negotiation, or if this fails, arbitration or judicial settlement.
When responsibility of State is established, he must make reparation thru restitution, satisfaction,
compensation, or all three of these together.
Jean Jamailah Tomugdan
JD - 2

Extradition is the surrender of a person by one state to another state where he is wanted for prosecution or,
if already convicted, for punishment. Surrender is made at the request of the latter state on the basis of an
extradition treaty. Deportation is the expulsion of an alien who is considered undesirable by the local state.
Deportation is the unilateral act of the local state and is made in its own interests.

In the absence of an extradition treaty, the local state may grant asylum to the fugitive. If surrender is made,
asylum is merely a gesture of comity.

Fundamental principles of Extraditon

a) Based on consent – in a treaty or as an act of goodwill
b) Principle of speciality – extradited fugitive may be tried only for the crime specified in the request for
extradition and crime is included in the list of offenses in the extradit treaty
 “Non-list” type of extradition treaties – offenses punishable under both states by
imprisonment of one year or more are deemed included in the list of offenses.
c) Any person may be extradited – whether a national of the requesting state or the state of refuge
d) Political and religious offenders are generally not subject to extradition
 Political – 2 or more parties in the state, each seeking to impose the government of their own
choice on the other
 Attentat clause – the murder of the head of state or any member of his family is not a
political offense. Neither is genocide.
e) Offense must have been committed within the territory or against the interest of the demanding state
f) Act for which the extradition is sought must be punishable in both the requesting and requested
states (The Rule of Double Criminality)

Procedure for Extradition

2) JUDICIAL INVESTIGATION
1) REQUEST
State of refuge to conduct investigation to
Made thru diplomatic
Accompanied with necessary ascertain if a) crime is covered by the treaty,
channels to the state of refuge
papers to determine identity of and b) there is a prima facie case against the
the wanted person
fugitive according to its own laws

Government of Hongkong v. Olalia – constitutional right to bail now

applies to extradition proceedings. The worth of the individual person 3) WARRANT OF SURRENDER DRAWN
and the sanctity of human rights is given primacy. Both deportation and
extradition are administrative proceedings where the innocence or guilt Fugitive Is delivered to the state of refuge
of the detainee is not in issue.

Standard in granting bail – “clear and convincing evidence” that he is not a flight risk and will abide with all
the orders and processes of the extradition court.

Abduction of the fugitive in the state of refuge is not allowed, as it constitutes a violation of the territorial
integrity of the state of refuge. If abduction is effected with the help of the nationals of the state of refuge, the
state of refuge cannot later demand to return of the fugitive. Savarkar case.
Jean Jamailah Tomugdan
JD - 2

Extradition treaties of the Philippines

1976 – Indonesia
1988 – Australia
1989 – Canada
1989 – Switzerland
1990 – Micronesia

Letters Rogatory – formal communication from a court in which an action is pending, to a foreign court,
requesting that the testimony of a witness residing in the foreign jurisdiction be taken under the direction of
the court, addressed and transmitted to the court making the request. Parang international bonggang
deposition! Sec. 12, Rule 24.

Asylum – the power of the state to allow an alien who has sought refuge from prosecution or persecution to
remain within the territory and under its protection. HAS NEVER BEEN RECOGNIZED AS A PRINCIPLE OF
INTERNATIONAL LAW.

Principles of Asylum
1) Territorial – exists only when stipulated in a treaty or justified by established usage. Depends on the
liberal attitude of the receiving state, on the ground of “territorial supremacy”
2) Diplomatic – granted within “narrowest limits” or when life or liberty of person is threatened by
imminent violence

In the Philippines, diplomatic asylum cannot be granted EXCEPT to members of the official and personal
household of diplomatic representatives. Refuge may be granted however, to fugitives whose lives are in
imminent danger from mob violence (humanitarian grounds)

Refugees
Any person who is outside the country of his nationality, or if he has no nationality, the country of his former
habitual residence, due to a well-founded fear of prosecution(?? Parang typo) by reason of his race, religion,
nationality, political opinion. Because of such fear, he is unable or unwilling to avail of the protection of his
government or his former habitual residence.

Elements:
1) Outside the country of his nationality OR if stateless, outside habitual residence
2) Lacks national protection
3) Fears persecution

Refugee is de jure/de facto a stateless individual.

Refugee Convention of 1951 does not deal with admission but with non-foulement: no contracting state shall
expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom is
threatened.
Jean Jamailah Tomugdan
JD - 2

Settlement of Disputes
International dispute – actual disagreement between States regarding the conduct to be taken by one of them
for the protection or vindication of the interests of the other. A situation is the initial stage of a dispute.

A. Pacific or amicable modes – (art. 3 of UN charter) Parties to any dispute, the continuance of which
is likely to endanger the maintenance of international peace and security, shall first of all seek a
solution by:
1. Negotiation – states settle their differences through an exchange of views between diplomatic
agencies
2. Enquiry – Ascertainment of the pertinent facts wand issues in a dispute
3. Tender of good offices – where a third party either alone or with others offers to help in the
settlement of a dispute and accepted.
4. Mediation – A third party offers to help with a solution usually based on a compromise. Offers a
solution not merely bring the parties together as in good offices.
5. Conciliation – Active participation of a3rd party whose services are solicited by the disputants in
the effort to settle the conflict but the conciliator’s recommendations are not binding.
6. Arbitration – Solution of a dispute by an impartial third party usually a tribunal created by the
parties themselves under a charter known as a compromis.
7. Judicial settlement - Similar to arbitration in the nature of the proceedings and in the binding
character of the reward.

Judicial Settlement Arbitration

Judicial body is pre-existing Ad hoc

Jurisdiction is usually compulsory and law Not so

applied is independent of the will of the parties

Lodged in the ICJ Any 3rd party

8. Resort to regional agencies or arrangements – parties may, on their own volition, or at the
instance of the organization itself, assume the obligation of settling the dispute
9. Or other peaceful means of their own choice

B. Hostile Methods

1. Severance of diplomatic relations

2. Retorsion – unfriendly by lawful coercive acts done in retaliation for unfair treatment and acts of
discrimination of another state ( the levy of high discriminatory tariffs on goods)
3. Reprisal – unfriendly and unlawful acts in retaliation for the reciprocal unlawful acts of another
state. Reprisal may take the form of
a. Freezing of the assets of the nationals of the other state
b. Embargo – forcible detention or rsequestration of the vessels and other property of the
offending state
c. Pacific Blockade – prevention of entry to or exit from the ports of the offending state by
means of communication and transportation
d. Non-intercourse – (refraining to engage in coitus hehehe joke lang) suspension of all
intercourse with the offending state particularly in matters of trade and commerce
Jean Jamailah Tomugdan
JD - 2

e. Boycott – (less than 30% of the students in a class attended joke lang ulit) – concerted
suspension of commercial relations with the offending state with particular reference to a
refusal to purchase goods

C. Role of the United nations – when none of the above-mentioned methods succeeds in settling the
dispute, the Un may be asked or may decide on its own authority to take a hand in the settlement.
Addressed to the Security Council, but may be taken over by the General Assembly under certain
conditions.

1. Security Council- jurisdiction to intervene in all disputes affecting:

a. International peace and security;
b. All disputed, which although coming under the domestic jurisdiaciton clause have been
submitted to it by the parties for settlement
 May be brought to Security Council itself, General Assembly, Sectretary General, any member
of the UN or any party to the dispute.

i. Security council will recommend appropriate measures considering any amicable

measures already adopted by the parties or that the dispute be referred to the ICJ
ii. If unsuccessful, Security Council itself may recommend such terms of settlement as
it may deem appropriate
iii. If rejected, the Security Council may take:
a. Preventive Action
b. Enforcement action
2. General Assembly – if the Security Council, because of lack of unanimity, fails to exercise its primary
responsibility to maintain peace and security, the General Assembly shall consider the matter
immediately, with a view to making recommendations to the members for collective measure,
including the use of armed forces.
Jean Jamailah Tomugdan
JD - 2

War and Neutrality

War - the contention between two states, through their armed forces for the purpose of overpowering the
other and imposing such conditions of peace as the victor pleases. War does not mean the mere employment
of force.

If a nation declares war against another, was exists, though no force has yet been used. On the other
hand, in case of reprisal, force may already be used but no state of war may yet exist.

1. Outlawry of War – condemnation of war on an international scale

a. Covenant of the League of the Nations – provided conditions for the right to go to war
b. Kellog- Briand Pact of 1902 – General Treaty for the Renunciation of War, ratified by 62 states
which forbade war as an instrument of national policy.
c. Charter of UN – Article 2 prohibits the threat or use of force against the territorial integrity or
political independence of a state

2. Commencement of War
a. Declaration of War (Hague Convention of 1907)
b. With the rejection of an ultimatum (Hague Convention)
c. Commission of an act of force regarded by one of the belligerents as an act of war

3. Effects of Outbreak of War

a. Laws of peace cease to regulate relations between the belligerents and superseded by the laws of
war while third states are governed by the laws of neutrality in their dealings with the
belligerents
b. Diplomatic and consular relations are terminated and respective representatives are allowed to
return to their own countries
c. Treaties of a political nature are automatically cancelled except those intended to operated
during the war. Multipartite treaties dealing with technical or administrative matters are merely
suspended as between the belligerents.
d. Individuals are impressed with enemy character

Nationality Test Domiciliary test Activities test

If they are nationals of the
other belligerent,wherever
they may be
If they are domiciled aliens in
the territory of the other
belligerent on the assumption
that they contribute to its
economic resources
If being foreigners, they
participate in the hostilities
in favor of the other
belligerent

e. Corporations and other juridical persons are considered enemies where the controlling
stockholders are national of the other belligerent or if incorporated in the territory or under the
laws of the other belligerent, and may be not be allowed to continue operations.
f. Enemy public property found in the territory of the other belligerent at the outbreak of the war
is subject to confiscation, private property is subject to requisition.
Jean Jamailah Tomugdan
JD - 2

4. Participants in War
a. Combatants – those who engage directly in the hostilities
1. Non-privileged – spies, who under false pretenses try to obtain vital information from the
enemy ranks, who when caught are not considered prisoners of war
2. Privileged – when captured, enjoy the privileges of prisoners of war.
a. Regular Armed Forces
b. Ancillary services
c. Those who accompanied armed forces
d. Levees en masse
e. Franc Tireurs/guerillas
f. Officers and crew of merchant vessels who forcibly resist attack
 Rights of POW – treated humanely, no torture, allowed to communicate with families,
receive food, clothing, religious articles, etc.

b. Spies
c. Mercenaries
i. Specially recruited to fight for a particular armed conflict
ii. Takes direct part in the hostilities
iii. Motivated by desire to gain

5. Conduct of Hostilities
a. Principle of Military Necessity – Belligerent may employ any amount of force to compel
the complete submission of the enemy with the least possible loss of lives and money
b. Principle of Humanity – Prohibits the use of any measure that is not absolutely
necessary for purposes of war
c. Principle of Chivalry – Prohibits belligerents from the employment of perfidious or
treacherous methods, such as the illegal use of Red Cross emblems.

Belligerent occupation – temporary military occupation of the enemy-s territory during the war. Maintains
effective control and military superiority therein, being able to send in case of attack, sufficient forces to
assert its authority within a reasonable time.

1. Effects – no change in sovereignty but the exercise of the powers of sovereignty is suspended.
2. Rights and duties of belligerent occupant
a. Re-establish or continue the processes of orderly administration including enactment of laws
b. Adopt measures for the protection of the inhabitants
c. Requisition goods and services in non-military projects
d. Demand taxes and contributions to finance military and local administrative needs.
e. Issue legal currency
f. Use enemy property, whether public or private, but private property is subject to
indemnification or return at the end of the war.
3. Right of Angary – right of a belligerent state, in cases of extreme necessity to destroy or use neutral
property on its own or on enemy territory, or on the high seas.

Non-hostile intercourse

1. Flag of truce – White in color, indicates the desire to communicate with the enemy, agent, called
parlemetaire, enjoys inviolability and is entrusted with the duty of negotiating with the enemy.
2. Cartels – agreements to regulate intercourse during the war, usually on the exchange of prisoners of
war
Jean Jamailah Tomugdan
JD - 2

3. Passport – written permission given by the belligerent government to the subject of the enemy to
travel generally in belligerent territory
4. Safe-conduct – Permission given to an enemy subject or to an enemy vessel allowing passage
between defined periods
5. Safeguard- protection granted by a commanding officer either to enemy persons or property within
his command, usually with an escort or convoy of soldiers providing the needed protection
6. License to trade – permission given by competent authority to individuals to carry on trade though
there is a state of war

Suspension of Hostilities

1. Suspension of Terms – temporary cessation of hostilities by agreement of the local commanders for
such purposes as gathering of the wounded and burial of the dead
2. Armstice – suspension of hostilities within a certain area or in the entire region of war, agreed upon
by the belligerents, usually for the purpose of arranging the terms of peace
3. Cease-fire – unconditional stoppage of all hostilities, usually ordered by an international body
4. Truce – Conditional cease-fire for political purposes
5. Capitulation- surrender of military forces, places, or districts, in accordance with the rules of
military honor

Termination of War
1. Simple cessation of hostilities – Principle of uti possidetis, with respect to property and territoty
possessed by the belligerents, is applied
2. Conclusion of a negotiated treaty of peace
3. Defeat of one of the belligerents followed by a dictated treaty of peace or annexation of
conquered territory

Postliminium – the revival or reversion to the old laws and sovereignty of territory which has been under
belligerent occupation once control of the belligerent occupant is lost over the territory affected
1. Uti Possidetis – allows retention of property or territory in the belligerent’s actual possession at the
time of the cessation of hostilities.

War Crimes – acts for which soldiers or other individuals may be punished by the enemy on capture of the
offender
1. War Criminal – any person, whether a civilian or a member of the armed forces of the state, who
commits an act that violates a rule of international law governing armed conflicts

Neutrality and Neutralization

Neutrality
Non-participation, directly or indirectly, in a war
between contending belligerents
Exists only during war- governed by law of the
nations
Neutralization
The result of treaty wherein the conditions of the
status are agreed upon by the neutralized state and
other signatories.
Exists both in times of peace and war- governed by
the agreement into by and between the parties.

 Non belligerency – midway between Neutrality and Neutralization. Sometimes been used t
describe the status of a state which did not take part in military operations but which did not
observe the duties of a neutral. Not recognized in International Law.
Jean Jamailah Tomugdan
JD - 2

Rules of Neutrality – Neutrals have the right and duty to:

1. Abstain from taking part in the hostilities and from giving assistance to either belligerent by:
- Sending of Troops
- Official grant of loans
- Carriage of Contraband

Contraband – goods, although neutral property, may be seized by a belligerent because they are useful for
war and are bound for a hostile destination. They can be:
- Absolute – guns or ammunition
- Conditional – Food and clothing
- Free- List – medicines

Doctrine of ultimate consumption – goods intended for civilian use which may ultimately find their way to
and be consumed by belligerent forces may be seized on the way

Doctrine of Infection- Innocent goods shipped with contraband may also be seized

Doctrine of Continuous voyage, Transport - Goods reloaded at an intermediate port on the same vessel, or
reloaded on another vessel or other forms of transportation may also be seized on the basis of doctrine of
ultimate consumption.

2. Prevent its territory and other resources from being used in the conduct of hostilities. Allowing
territory to be used as the base of operations

3. To acquiesence to certain restrictions and limitations which the belligerents may find necessary
to impose such as:
a. Blockade – hostile operation by means of which vessels and aircraft of one belligerent
prevent all other vessels including those of neutral states from leaving or entering the
port or coasts of the other belligerent.
b. Pacific Blockade – applied only vessels of blockaded states not to those of other states.

4. Termination of Neutrality – terminates upon conclusion of a treaty of peace between the

belligerents, or when the neutral state itself joins the war.