Documente Academic
Documente Profesional
Documente Cultură
OF THE MAIN
TOPICS
1.
International
BASIC OR FOUNDATION OF
PUBLIC INTERNATIONAL LAW
In
actual
practice,
common
consent and natural moral law are
determinative factors in interstate
relationship. This is founded on the
reason
that
common
consent
necessarily commands the faithful
compliance of commitments made,
or arrived at, in the course of a
common agreement. There are
three schools of thought on this
(2) Positivist
School of
ThoughtAccording to this
school of thought,
the basis is the
common consent of
(3)Eclectic School of
Thought- This school
of thought holds the
view that Public
International Law is
premised both on the
moral natural law and
on common consent.
QWhy
is
public
international
law
observed?
A- States observed public
international law because:
(a) they believe in the
reasonableness of the law of
nations; (b) they fear reprisal
from the other States; and
(c) they fear being
unconventional.
Q- Why is public
international
law observed by
private
individuals?
Q- What is the
relation between
public
international law
and municipal
law in general?
A- Although international in
character, public international law
could be considered part of the
municipal law of a State because of
the doctrine of incorporation of
political law. Under this doctrine, a
State is, by reason of its
membership in the family of
nations, bound by the generally
accepted principles of international
law, the same being considered as
part of its own laws.
2.
Municipal Law
1.Obedience to
1. It is more difficult to
municipal law is easier
enforce because it is
to enforce because the
enforced by the
citizens recognize the
collective wills of equals
superiority of their
(sovereign states).
government and its
2. The principal sanctions
duly constituted
are reprisals and war.
authorities.
3. The international order
2.Law is enforced
is relatively
through criminal
decentralized.
punishment or
4. Collective responsibility
execution of
is the rule for failures or
judgment.
omissions.
3.It is relatively a
centralized coercive
order because there is
one central authority
(the municipal
RELATIONSHIP BETWEEN
PUBLIC INTERNATIONAL
LAW AND MUNICIPAL LAW
Although international in
character, public international
law could be considered part
of the municipal law of a State
because of the doctrine of
incorporation in political law.
Q- Is public
international
law
independent
from
municipal
What is the
conflict
between
public
international
law and
It depends.
If the conflict is to be decided by a local
court and the case is with respect to the
conflict of public international law and our
Constitution, then our Constitution should
be upheld being the highest law of the land.
REASON: Section 5[2][a], Article VIII of the 1987
Constitution which provides that the Supreme
Court shall have the power to review, revise,
reverse, modify, or affirm on appeal or certiorari,
as the law or the Rules of Court may provide,
final judgments and orders of lower courts in: x x
x (a) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
If the conflict is to be
decided by an
internationally created
tribunal, the recognized
principle is that national
laws must yield to the
laws of nations. REASON:
International law provides
the standards by which
Q- What
prevails in case
of conflict
between a
treaty and a
municipal
constitution?
A- As above-mentioned, a soft
law is merely an expression of
non-binding norms, principles
and practices that merely
influence state behavior.
Hence, it is not binding
because it is not yet
transformed into a domestic
law. For it to be binding, the
same must be established as a
3.
RECOGNITION OF STATES
Recognition of a State- Recognition
is the act of acknowledging the
existence of a State, a
government or belligerency. It is a
political act which is exercised by
the political department of the
State. It is therefore discretionary
on the part of a State whether it
desires to recognize another
Different doctrines
regarding recognition
of any government
(1) Under the Stimson
Doctrine, no recognition
shall be extended to a
government established
by and through external
aggression.
Different kinds of
recognition
(1) Express recognition;
(2) Implied recognition;
(3) De Facto recognition;
and
(4) De Jure recognition
De Facto recognition
does not bring about
full diplomatic
intercourse. It is
generally provisional
and it is extended on
the belief of the
recognizing State that
some of the
requirements for
recognition are absent.
It does not give title to
assets of the State held
De Jure
De Jure recognition
brings about full
diplomatic intercourse
and observance of
diplomatic immunities
and confers title to
assets abroad.
Q- What are
the
characterized
of de facto
government of
paramount
A- Its distinguishing
characteristics are:
1. That its existence is
maintained by active military
power within the territories,
and against the rightful
authority of an established
and lawful government; and
Remembering my
discussion through
question and
answer in the
textbook,
Constitutional Law,
Volume 1
Q- Was it a de
jure
government
or a de facto
government?
Q- If the said
government is a
revolutionary
government, what
was its effect on the
Bill of Rights under
the 1937
5.
SUCCESSION
OF STATE AND
SUCCESSION
OF
GOVERNMENT
SUCCESSION OF
GOVERNMENT
1982
Q- What is the
status of an
individual under
International
7.
VATICAN CITY AND THE HOLY SEE
Is the Vatican or the Holy See a
State?
Yes, it possesses the essential
elements of a State. REASONS:
1.There are around 1,000 people
almost all of whom are individuals
residing therein by virtue of their
office;
2. There is a definite territory
(approximately 100 acres);
3. There is a government (under the
Pope himself);
8.
DOCTRINE OF STATE
CONTINUITY
Doctrine of State
continuity- Under this doctrine,
a State does not lose its identity
but remains one and the same
international person
notwithstanding changes in the
form of its Government, in its
headship, in its rank and title, in
its dynasty.
9.
ACT OF STATE DOCTRINE
Act of State doctrine- Under this
doctrine, the foreign court chooses to
uphold and respect the foreign States
act done within its territory on the
reasoning that if it will not do so, it
would imperil the amicable relations
between governments and vex the
peace of nations. The doctrine was
applied in the case of Banco National de
Cuba vs. Sabatino(376 U.S. 398 [1964]),
which upheld the nationalization of
sugar produced in Cuba.
AS APPLIED IN
CREDIT SUISSE VS. U.S. DISTRICT
COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA, 130 7.3d 342, 134748
In relation to
PNB VS. U.S. DISTRICT COURT OF
HAWAII
04-71843 (D.C. NO. MDL-00840-
ISSUE:
Are the orders of the U.S. District
Court of Hawaii a violation of the
Act of State Doctrine.
HELD:
1. The U.S. 9th Circuit Court of
Appeals held that the orders of the
U.S. District Court of Hawaii had
violated the Act of State Doctrine
and reasoned out as follows:
10.
BELLIGERENT AND INSURGENT
COMMUNITIES
Who are referred to as
insurgents or rebels?
Insurgents or rebels are regarded
as organized groups who are in a
state of armed hostility towards an
established government on
account of political reasons or
purposes.
NATIONS
Four (4) salient purposes of the
United Nations
The four (4) salient purposes of the
United Nations are the following:
NATIONS
Principles of the United Nations
The Organization is supposed to act
in accordance with the following
principles:
(1) Sovereign equality;
(2) Good faith;
(3) Peaceful settlement of disputes;
(4) Avoidance of threat or use of
force;
(5) Members to assist United Nations;
(6) United Nations to ensure that nonmembers will act properly;
ORGANS OF THE UN
Principal organs of the
United Nations
The principal organs of the
United Nations are the following:
(1) General Assembly;
(2) Security Council;
(3) Economic and Social Council;
(4) The Trusteeship Council;
(5) International Court of Justice;
(6) Secretariat (Article 7, No. 1,
Explain each.
(1) General AssemblyComposition: Consists of all
the members of the
organization, each of which is
entitled to send not more
than 5 representatives and 5
alternates.
Voting power: Each member
has only one vote.
Classification of functions:
(1) Deliberative, like initiating studies and
making recommendations for the
development of international law, etc.;
(2) Supervisory, such as receiving and
considering annual and special reports from
other organs of the UN;
(3) Financial, like consideration and approval
of the budget of the organization, the
apportionment of expenses, etc.;
(4) Elective, such as the election of the nonpermanent members of the Security Council;
and
(5) Constituent, such as the admission of
Q- At the United
Nations, the Arab
League, through Syria,
sponsors a move to
include in the agenda
of the General
Assembly the
discussion of this
Term of office:
They are elected for 9 years and may
be re-elected; provided, however, that
of the judges elected at the first
election, the term of 5 judges shall
expire at the end of 3 years and the
terms of five more judges shall expire
at the end of 6 years.
Court is permanently in
session:
The court shall remain
permanently in session except
during the judicial vacations, the
dates and duration of which shall
be fixed by the Court.
(Article23,ibid.)
Composition- Headed by a
Secretary-General who is
chosen by the General
Assembly upon
recommendation of the
Security Council. He shall be
the chief administrative officer
of the Organization. (Article
97, UN Charter)
Functions
1. The Secretary-General is the
highest representative of the
UN, and is authorized to act in
its behalf.
2. Acts as Secretary in all
meetings of the General
Assembly, the Security Council,
the Economic and Social Council,
and the Trusteeship Council.
TO SUSPEND
TO EXPEL
The decisions of
The same vote is
2/3 of those
required to
present and
suspend.
voting in the
General
Assembly upon
the
recommendation
of at least nine
(9) members of
the Security
Council, including
all the permanent
members of the
Security Council.
Can it be amended?
Yes, it may be amended in the following
manner:
By 2/3 vote of the General Assembly and
ratified with their respective constitutional
processes by 2/3 of the members of the UN,
including all the permanent members of the
Security Council:
A general conference, called by a majority
vote of the General Assembly and any nine
(9) members of the Security Council, may
propose amendments by a 2/3 vote of the
conference.
12.
FUNDAMENTAL RIGHTS OF STATES
Rights of existence, integrity and selfpreservation
Right of sovereignty and independence
Right of equality
Right of property and jurisdiction
Right of legation or diplomatic intercourse
CODE: ESEP-LEG
E-xistence
S-overeignty
E-quality
P-roperty and jurisdiction
LEG-ation
SELF-DEFENSE
Self-defense It is right of a
State to defend itself from an
external aggression. The necessity
for self-defense is determined by
the party attacked and in the
exercise of this right, it has the
right to repel force with force.
COLLECTIVE SELF-DEFENSE
Collective self-defense It is
the collective right of the
members of a particular
organization to defend
themselves from an
aggression or attack which
endangers their peace and
safety.
Example:
a. NATO (North Atlantic Treaty
Organization)- This is a treaty
signed in Washington on April 4,
1949, composed of Nations in
the North Atlantic area. Their
agreement: The parties agreed
among others, that an armed
attack against one or more of
them in Europe or in North
America is considered as an
attack against all of them.
CASES:
3. RIGHT OF EQUALITY
Meaning of equality in public
international law
It does not mean absolute
equality. It means legal equality or
equality before the law, which
means that the rights of the State,
regardless of its size, population,
power, degree of civilization,
wealth, etc. must be respected,
and if a State has obligations, it
has to respect them and comply
with them.
POINTS TO REMEMBER:
1.Definition of our National
territory (Section 1, Article 1,
1987 Constitution)
2.Archipelagic doctrine- (Already
discussed)
3.Effect of the words and all
other territories over which the
Philippines has sovereignty or
jurisdiction.
4.What definitely fixes the extent
of Philippine territory?
MODES OF ACQUIRING
TERRITORIES
Different modes of acquiring
territories
1.Discovery and occupation
2.Prescription
3.Cession
4.Conquest and subjugation
5.Accretion
EXPLANATION OF EACH
DISCOVERY AND OCCUPATION- this
is an old mode of acquiring
ownership when territories which
were not yet discovered and
occupied can be acquired by the
discovering State under the principle
of Terra Nulius which means that
since it is a territory which is not yet
owned by or belonging to any State
(stateless territory), it can be
acquired under the principle of
discovery and occupation
It is important because
of the rich natural
resources found therein.
This is, in fact,
incorporated in the
Petroleum Act.
PRESCRIPTION
Elements of prescription as a mode
of acquiring territory
1.Possession which must be
continuous, public and adverse.
2.Lapse of a reasonable period of
time (which is a question of fact
and dependent on the
circumstances of each case.)
CESSION
Cession- It is a mode of acquiring
territory made either voluntarily
(sale or donation) or involuntarily
(on account of or as a result of
war)
Example:
1.Cession of Alaska by Russia to
the US in 1867.
2.Cession of the Philippines by
Spain to the US. (Treaty of
Paris, December 10, 1896)
ACCRETION
Accretion- It is a mode of acquiring
property produced by or which is
attached or united to a thing already
owned by a person. In Roman Law, this
is known as accession which may either
be:
Accessio Continua- Accession occurring
as a consequence of forces external of
the thing itself.
Accessio Discreta- Accession occurring
as a consequence of forces inherent in
the thing itself.
Accessio Continua may be natural or
artificial.
1. Rivers
2.Bays and gulfs
3.Straits
4.Canals
2. Archipelagic waters
A- Yes.
Q- what is referred to as
the contiguous zone?
Q-What is referred to as
the exclusive economic
zone?
An example of the
Philippine exclusive
economic zone is the
SCARBOROUGH SHOAL,
which is situated about
135 kilometers from Iba,
Zambales.
Q-what is referred to as
the continental shelf?
AERIAL DOMAIN-(it
refers to the air space
above the land and
waters)
2. FREE AERIAL
NAVIGATION- Air, like
the high and open seas,
is open to free navigation
by all aircraft, domestic
and foreign, subject to
the right of the State to
provide for the security
of the territory.
3. TWO-ZONE THEORY
There is a lower zone of
territorial air space and a
higher unlimited zone of
free air space.
4. SOVEREIGNTY IS
SUBJECT TO EASEMENTWhile the sovereignty
over the air space
remains with the
subjacent State, it is
subject to the easement
of innocent passage for
foreign aircraft.
RIGHT OF LEGATION OR
DIPLOMATIC
INTERCOURSE
FOUR CLASSES OF
DIPLOMATIC OFFICERS
1.Ambassadors they
are the political, cultural,
economic, and social
representatives of their
countries to a foreign
State. Their offices are
called as embassies.
2.Ministers
plenipotentiary or envoys
extraordinary-they are
ministers assigned to
attend special to a
special function (i.e.,
signing a treaty).
3.Ministers resident
they are the political,
cultural, economic, and
social representatives of
their countries to a
foreign principal city,
their offices are known
as legations.
2. Administrative and
technical Staff
(those employed in the
administrative and
technical service of the
mission)
APPOINTMENT OF
DIPLOMATIC OFFICIALS
Q-Who appoints
ambassadors, other
public ministers and
consuls?
Q-What is agreation?
Q-what happens if an
appointment is made
without agreation?
A-this amounts to
diplomatic faux pas
because without
agreation, there may
possibly be an
embarrassment.
a) To promote Friendly
relations between the
sending state and the
receiving State, and the
development of their
economic, cultural and
scientific relations;
c) To protect the
interests of the nationals
of his country within the
limits allowed by
international law;
d) To represent his
country in the receiving
state;
WAIVER OF IMMUNITIES
Q-Can diplomatic
immunities and
privileges be waived?
1.Express waiver as
already discussed;
2.Implied waiver
failure to assert
immunity at the time of
suit;
Q-When is a diplomatic
mission terminated?
EXTRADITION
A-Yes, if there is an
extradition treaty to that
effect. Of course, a State
may voluntarily extradite
a criminal even without
an extradition treaty.
Extradition
1.The surrender
by force of a
wanted person by
the requested
State to the
requesting State
2. May only be
made pursuant to
a treaty between
the requesting
State and the
requested State
3.It is for the
Deportation
1.The expulsion of
an unwanted or
undesirable alien.
2. It is an exercise
of sovereignty and
decision made by
a State.
3. It is an order of
a State acting on
its own and
according to its
laws, interest and
processes
CONSULAR OFFICIALS
Q- What is a consul?
A-As to character
a) Consules missi (consuls
de carrier)- Literally this
means consuls of career.
They are professional
consuls, hence, they are
not allowed to engage in
any other profession or
business;
As to rank
A) Consul-general- He
heads several consular
districts, or one
exceptional large
consular district;
2) Exequator-This is the
authorization given by the sovereign
of the receiving State to the consul,
allowing him to exercise his functions
within the territory. (See Lawrence,
Principles of International Law, p.
297). The exequator may be granted
conditionally; the grant may even be
refused for any or no reason; once
granted, the exequator may be
unilaterally withdrawn.
4) Outbreak of war
between the two states
involved
5) Expiration of the period
of appointment (if such
period had been specified)
6) Disruption of consular
relations.
JURISDICTION OF
STATES
Q-What is referred to as
the jurisdiction of a
State?
Q-What must be
considered by a State in
the definition of its
jurisdiction over persons,
property, transactions or
events.
3. Protective principle
4. Universality principle
5. Passive personality
principle
EXPLANATION OF EACH
1.TERRITORIAL PRINCIPLE
a. With respect to all
persons, things,
transactions or happenings
within its territorial limits
A State exercise exclusive
jurisdiction (executive,
legislative, and judicial)
Example:
There are no territorial
limitations on the exercise
of legislative functions in
civil matters but the State,
as a rule, has criminal
jurisdiction only over
offenses committed within
its territory except in the
following instances:
2. NATIONALITY PRINCEIPLE-This
means that the state may punish
offenses committed by its nationals
anywhere in the world. In civil
matters, the personal laws of many
countries which have adopted the
continental legal system follow
their nationals wherever they are.
5.PASSIVE PERSONALITY
PRINCIPLE
The State exercises
jurisdiction over crimes
against its own nationals
even if committed
outside its territory.
CASE
CALLADO VS.
INTERNATIONAL RICE
RESEARCH INSTITUTE
G.R. NO. 106483, MAY
22, 1995
PARTICULAR SUBJECT:
IMMUNITY FROM SUIT
PRINCIPLE: The
International Rice
Research Institute, Inc.,
enjoys immunity from
penal, civil and
administrative
proceedings.
FACTS:
Ernesto Callado was employed as
a driver at the international Rice
Research Institute (IRRI) from
April 11, 1983 to December 14,
1990. On February 11, 1990,
while driving an IRRI vehicle on
an official trip to the Ninoy
Aquino International Airport and
back to the IRRI, petitioner figure
in an accident.
ISSUE:
Is PD. No. 1620 constitutional?
Is IRRI immuned from the
jurisdiction of the Department of
Labor and Employment?
HELD:
Presidential Decree No. 1620,
Article 3, provides:
OTHER CASES
In International Catholic
Migration Commission vs. Hon.
Calleja, et al., and the
Kapisanan ng mga
Manggagawa at TAC sa IRRI
vs. Secretary of the Labor and
Employment and IRRI, 190
SCRA 130 [1990]-
In World Health
Organization vs. Aquino
48 SCRA 242 [1972]
3. Extraterritorial
jurisdiction- The State
has power and
jurisdiction beyond or
outside its territory:
EXEMPTIONS FROM
JURISDICTION
A1.Doctrines of sovereign
immunity
a. Restrictive doctrine
of
sovereign immunity
2. Act of State doctrine
3.Diplomatic immunity
EXPLANATION OF EACH
1.DOCTRINE OF STATE
IMMUNITY
Q-What is the doctrine
of sovereign immunity?
A-Originally, It was
absolute, hence, a State
then may invoke sovereign
immunity irrespective of the
nature of its activities.
However, the application of
this doctrine was restricted
and qualified in the
following manner:
3.DIPLOMATIC IMMUNITY
Q-What are the diplomatic
immunities and privileges
which are accorded by
traditional usage?
12.Right to precedence
and to certain
ceremonial honors,
according to rank.
(Opprenheim, op. cit.,
pp. 627-631);
13.Right to grant asylum.
(In certain instances).
EXPLANATION OF
IMPORTANT
DIPLOMATIC
IMMUNITIES AND
PRIVILEGES
2.Inviolability of official
residence, archives and letters:
The agents of the receiving State
may not enter the premises
occupied by a diplomatic mission
except when it is necessary to
enter the premises (i.e., when
there is imminent danger that
criminal violence will be
perpetrated in the premises)
A-this is prohibited .
However, the said
criminals should be
surrendered upon
demand by local
authorities except when
the right of asylum exist.
3.Freedom of official
communication: The
diplomatic mission may
send and receive messages,
whether ordinary or in
cipher, by any of the usual
means of communication or
by means of diplomatic
couriers.
6. Registration, court or
record fees, mortgage dues
and stamp duty, with
respect to immovable
property. (Vienna
Convention)
PRINCIPLES
CONCERNING
TREATIES
Q-What is a treaty?
A-It is an international
agreement embodied in a single,
formal instrument entered into
by and between signatory States
or international organizations of
States, intended to create rights
and obligations, or establish
relationship, governed by
international law.
d. Concordats-agreements
entered into by Pope with
various Heads of States.
Declarations-these are
formal reciprocal agreements
which may deal with: (1) the
rights and privileges of the
nationals of a state;
or (2) principles in
accordance with which
States propose to act; or (3)
grounds for mutual actions
on the part of States
(Wilson and Tucker, op. cit.
p. 209). There are two
special kinds of
declarations, to wit:
1.reversals- declarations
that an error in etiquette or in
the draftsmanship of a treaty
should not be considered as a
precedent;
2. letters reversalsdeclarations that an alteration
in ceremonial practices is
being made only as an
exception to the general rule.
Q-Is an executive
agreement a treaty?
The above-qouted
provision has four
essential parts, which
are as follows:
Q-May the
constitutionality or
validity of a treaty,
international or
executive agreement be
reviewed by the lower
courts?
Q-May a treaty be
nullified when it conflicts
with our Constitution or
when it is contrary to an
act of Congress?
Jus dispositivum
Refers to norms of
ordinary Customary
International law which
are derived from the
consent of the states
and therefore only bind
states which consent
thereto.
Jus Cogens
They are duties which
every state owes to the
international community
as a whole as a norm
from which no
derogation is permitted
and which can be
modified only by a
subsequent norm of
general International
Law having the same
character.
What is the
classification of
treaties ?
5) RATIFICATION
(Which means that the
treaty must be properly
ratified by the various
States concerned in
accordance with their
constitutional processes)
Q-When does a
treaty become
effective?
REPPRESENTATIVE OF
THE STATE FOR THE
PURPOSE OF
EXPRESSING THE
CONSENT OF THE STATE
TO BE BOUND BY A
TREATY
Q-Can said
representative be
considered as
representing his State if
he has no full powers or
plein pouvoir?
2.Heads of Diplomatic
missions, for the
purposes of the text of a
treaty between the
accrediting State and the
Sate to which they are
accredited;
3.Representatives accredited
by States to an international
conference or to an
international organization or
one of its organs, for the
purposes of adopting the text
of a treaty in that conference,
organization or organ. (Vienna
Convention, Article 7 [2])
Q-What is alternat?
Q- After a treaty is
signed by the States
representative, is it the
legal or moral duty or
obligation of the
President to ratify a
treaty?
Q-More specifically,
what then are the
respective roles of the
President and the
Senate with respect to
ratification of a treaty?
Q-What, if any,
could be the basis
behind the refusal
to ratify a treaty?
ACCESION TO TREATIES
Q-What is
accession?
A-Accession is the
process whereby a nonsignatory State later
becomes a party to a
treaty there are two (2)
kinds of accession,
namely:
a. A non-signatory
becomes a party in all
provisions in which
case the process is
termed accession
proper
b. A non-signatory
becomes a party in some
of the provisions in
which case the process is
called either adhesion
or adherence.
FUNDAMENTAL
PRINCIPLES
CONCERNING TREATIES
REVISION OF
TREATIES
A-Article 14 of the UN
Charter answers this
question, thus: Article 14.
Subject to the provisions of
Article 12, the General
Assembly may recommend
measures for the peaceful
adjustment of any situation,
regardless of origin,
INTERPRETATION OF
TREATIES
TERMINATION OF
TREATIES
A-Treaties may:
1.Expire-(a) because the period
of its duration has come to an
end;(b) because a resolutory
condition has occurred; (c)
because of its purpose has been
achieved; (d) because of its
objective has become an
impossible thing to accomplish.
Be annulled or voided-(a)
because one of the signatories
to the treaty was at the time of
perfection incapacitated; (b)
because error or fraud (but not
force, pressure, or undue
influence) may have vitiated the
consent of the contracting
parties; (c) because the object
of the treaty is contrary to the
principles of international law;
2.WAR AS A STATE OR
CONDITION OF THINGS-war is
not the mere employment of
force but the existence of the
legal condition of things in
which the rights are or may be
prosecuted by force. (John B.
Moore, A Digest of International
Law, Vol. 7, pp. 153)
1987 CONSTITUTIONAL
PROVISIONS
REGARDING WAR
1.Renunciation of war as an
instrument of national policy.
(Article II, Section 2)
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 peace, equality, justice,
freedom, cooperation, and amity
with all nations.
2.Declaration of the
existence of a State of War.
(Article VI, Section 23[1])
The Congress, by a vote of
two-thirds of both Houses in
joint session assemble,
voting separately, shall have
the sole power to declare the
existence of a state of war.
6.Proclamation of martial
law is subject to review by the
COMMENCEMENT OF
WAR
Q-When is a war
commenced?
EFFECTS OF THE
OUTBREAK OF WAR
A1.Disruption of diplomatic,
consular and other no-hostile
relations between the two
countries.
2.Commercial intercourse
between citizens of the
belligerents is prohibited, with
some exceptions.
PARTICIPANTS IN THE
WAR
a. Non-privileged
combatants (i.e., Spies.
When caught, they do not
get the privilege of being
considered as prisoners
of war) (Article 29,
Hague Convention, 1907)
PRISONERS OF WAR
RULES OF WARFARE
After 1950
1.Hague Convention in
1954- Concerning the
protection of cultural
property, such as works
of art, in case of armed
conflict.
2. 1972 Convention
Prohibiting military use
of environmental
modification techniques
(EN-MOD Convention).
4.1981 (Conventional
Weapons Convention)
Updating the law in
weaponry.
A-It is prohibited:
To kill with treachery
To pillage a town or place even when
taken by assault
To employ poison or poisoned arms
To loot
To bomb undefended places (i.e.,
hospital, religious ship, places or worship)
To plant anchored mines
To bomb undefended or open cities
To deliberately bomb civilians
To kill hostages (1949 Geneva Covention)
SANCTIONS
Q-What are the sanctions recognized by international law for not observing the
rules of warfare?
A-CODE: RPPC
R-reprisals
P-unishment of war crimes
P-rotest lodged with neutral powers
C-ompensation
TERMINATION OF WAR
Q-What are the causes for termination of war?
A-CODE:CTU
C-essation of hostilities without conclusion of a formal treaty of peace
T-reaty of Peace (The decisive victory of one of the belligerents leads it to
impose its will upon the other.)
U-nilateral declaration (defeat or unconditional surrender)
Q-What is the meaning of Status Quo Anti Vellum?
A-Each of the belligerents is entitled to the territory and property which it had
possession of at the commencement of the war.
Q-What is the doctrine of postliminium?
A-The territory, individuals and property that have come to the possession or
authority of the original or legitimate sovereign. This also means that when a
territory which has been occupied by the enemy comes again into the power
of the State during the progress of the war through conquest or otherwise, the
legal State of the things existing prior to the hostile occupation is reestablished. (Principles, Cases and Comments in Constitutional Law I, by
Suarez, citing Aruego, international Law, p. 60)
3. On enemy property
a.Goods belonging to enemy persons are considered as enemy property
b. Goods found on board an enemy vessel are presumed to be enemy
property unless the contrary is established by the natural owners.
c. Vessels sailing under enemy flag bears enemy character, regardless of
the nationality or domicile of its owner.
d. Vessels sailing under neutral flag, while ordinarily regarded as neutral
in character, may under certain circumstances be considered to bear enemy
character.
4.On trading and intyercourse
a. The practice of belligerents in modern wars is to forbid by legislation all
intercourse with alien enemies, except those permitted under license. The
main object is to prohibit transactions which would benefit the enemy or
enemy persons.
5.On contracts
a.The rules of municipal law, rather than international law governs.
b. In general, the states treat as void contracts which may give aid to the
enemy or add to his resources.
6. On treaties
a. Treaties concerning political matters (i.e., treaties of alliance and
commercial transactions) are deemed abrogated by the outbreak of war
between the parties thereto.
b. Executed treaties (i. e., fixing of boundaries) are not affected by war.
c. A treaty which regulates the conduct of the parties in times of war is
clearly intended to become operative when war breaks out between them.
NOTE:
Genocide is a crime under International law whether
it is committed in time of peace or in time of war
(Article 1, ibid.)
Heads of State and government are not immune
from prosecution for Genocide. (Article 4, ibid.)
Persons charged with genocide shall be tried by a
competent tribunal of the State in the territory of
which the act was committed, or by such
international penal tribunal as may have jurisdiction
respect to parties to the Genocide Convention which
shall have accepted its jurisdiction. (Article 5, ibid.)
Acts punishable under the genocide convention are
the following:
Genocide;
Conspiracy to commit genocide;
Direct and public incitement to commit genocide;
Attempt to commit genocide; and
Complicity in genocide
BAR QUESTION
Q-What is reprisal?
A-The seizing of property of persons by
way of retaliation. Reprisal when they
are taken by a State may denote any
kind of coercive action not amounting
to war whereby a State attempts to
secure satisfaction from another for
some wrong which the latter has
committed against it. (Briely, 321)
Embargo
Commerce and trade with the offending
State is prohibited
Blockade
Maritime commerce between an enemy
State and the rest of the world is cut off in
order to prevent the goods from reaching
the enemy or to prevent the enemy from
exporting to the outside world thereby
sustaining its war economy.
Boycott
There is a concerted action made by the
citizens of one State to suspend trade and
business relations with the citizens of the
offending state.
AGRESSION
Meaning:
It is 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. (Resolution 3314 [XXIX], UN
General Assembly, December 14, 1974)
Under the said resolution, any of the following acts,
regardless of a declaration of war, shall qualify as act of
aggression:
The invasion or attack by the armed forces of a state of the
territory of another state, or any military occupation, however
temporary, resulting from such invasion or attack, or any
annexation by the use of force of the territory of another state
or part thereof;
Bombardment by the armed forces of a state against the
territory of another state
The blockade of the ports or coasts of a state by the armed
forces of another state;
An attack by the armed forces of a state on the land, sea or air
force, or marine and air fleets of another state;
Q-Explanation of each.
A-(1) Diplomatic negotiations-It
constitutes the process by which
States settle their differences
through an exchange of views
between diplomatic agencies.
Discussions may be oral written,
brief or prolonged.
(Marvomamatis Palestine
Concession Case, P.C.I.J. Pub. Ser.
A/2, p.11)
issues in a dispute.
(5) Conciliation and Arbitration It is
the reference of the dispute to a
commission or international body,
whose decision, however, is NOT
BINDING on the parties; when the
decision is final and conclusive on the
parties, the process is referred to as
arbitration.
(6)Reference to the Security Council of
the UN-When no danger to
international
peace is foreseen, the
Security Council may step in , but only
if ALL THE PARTIES to the dispute
request its intervention (Article 52, UN
Charter). When there is DANGER to
international peace, the Security
Chapter)
(b)On motion of the General Assembly
(Article 11, UN Charter)
(c) On motion of the UN SecretaryGeneral (Article 99, UN Charter)
(d)On motion by a UN Member (Article
35, No. 1, UN Charter)
(e)On motion by a Non-Member of the
UN (Article 35, No. 2, UN Charter)
In case the Security Council
discovers a threats to international
peace, it shall make the proper
recommendations are on the dispute.
(Article 39, UN charter) If the
recommendations are not heeded, the
council may take enforcement action
BELLIGERENT
OCCUPATIONS AS
DISTINGUISHED FROM
MILITARY OCCUPATIONS
BELLIGERENT OCCUPATION
It is a temporary military occupation
of the
territory of the enemy during the war. International
law recognizes the occupants authority over the
occupied territory and its inhabitants.
Example: Japanese occupation of the Philippines
during the last Pacific War.
MILITARY OCCUAPTION
There is military occupation when the victory takes
over enemy territory after conclusion of the war.
The rights and obligations of the military
occupant are generally premised on the provisions
of an agreement or treaty on the matter.
Example: Occupation of Germany and Japan by the
Allied Powers at the end of World War II.
EFFECT OF BELLIGERENT
OCCUPATION ON THE
SOVEREIGNTY OF THE
LEGITIMATE
GOVERNMENT
Q-When is a territory
deemed under military
occupation ?
suspended?
A-1. When there is a suspension of
arms (i.e., to bury the dead or to
remove the wounded)
2.When there is armistice
(suspension of military operations
in all regimes)
3.When there is a cease-fire
(stoppage of military firing and
advances)
4.When there is a capitulation (an
agreement whereby a body of
troops or fitness or a town is
surrender (no conditions
STATELESS PERSONS
BAR QUESTIONS, 1995
Q-Who are stateless person?
A-They are persons who are not
considered as nationals by any
State under the operation of its
law.(1954 Convention, Article 1,
relating to the status of
stateless persons which entered
into force on June 6, 1960)
TOPICS IN CONNECTION
WITH LAW OF THE SEA
1.Brief background on
the adoption of UNCLOS
2.Nationality of Vessels
3.Baseline Determination
4. Internal Waters and
ports
EXPALNATION OF EACH
ONE
BACKGROUND OF THE
ADOPTION OF UNCLOS
(Underlining Supplied)
What are the implications of
the foregoing reservation?
This means that the
sovereignty and jurisdiction
shall be exercised over the
territorial sea, as provided in
Article 1 of the 1987
Constitution, thus:
The national territory
comprises the Philippine
Archipelago, with all the
islands and waters embraced
2.NATIONALITY OF VESSELS
Legal significance of the
nationality of a vessel:
The nationality, registration or
documentation of vessels
determines a relationship
between the vessel and the State
that authorizes it to fly its flag. A
ship has the nationality of the
state whose flag it is entitled to
fly. (Article 92, UNCLOS)
Genuine Link
requirement Article 91
of the LOS Convention
requires that there must
exist a genuine link
between the ship and
the state before the
latter may confer its
nationality upon the
ship.
3.BASELINE
DETERMINATION
DEFINATION OF
BASELINE
It is the law-water
mark along the coast
from which the belt or
territorial sea measured.
(UK vs. Norway, ICJ,
December 18, 1951)
DEFINATION OF CONTINENTAL
SHELF:
It is the seabed and subsoil of
the submarine areas extending
beyond the territorial sea of
the coastal state throughout
the natural prolongation of its
land territory up to (1) the
outer edge of the continental
margin, or to (2) a distance of
200 nautical miles from the
baselines of the territorial sea,
whichever is the farthest.
NOTE:
1.The continental shelf may
extend farther than the
continental margin when the
continental margin does not
extend beyond the 200 nautical
miles from baselines. In such case,
the continental shelf goes farther
than the continental margin may
extends up to the 200 nautical
miles limit. (Ibid., Article 76[1])
7.EXPLOITATION OF THE
MINERAL RESOURCES OF
THE DEEP SEA BED
STATUS OF THE LEGAL
REGIME GOVERNING THE
EXPLOITATION OF
MINERAL RESOURCES OF
THE DEEP SEABED
8.HIGH SEAS
DEFINITION OF HIGH SEAS:
There are the waters which are not
included in the territorial sea or in
the internal waters of any state, in
the archipelagic waters and exclusive
economic zone of the State. Hence,
they are beyond the jurisdiction and
sovereign rights of the States.
Remember my previous regarding
the Freedom of the Seas, thus:
TOPICS:
1.The airspace
2.The Outer space
3.The Moon and other Celestial
Bodies
4.Liability for damaged caused by
space objects
EXPLANATION
1.AIRSPACE SPECIALIZED AGENCY OF
THE UN COORDINATING AND
REGULATING INTERNATIONAL AIR
TRAVEL
ICAO (International Civil Aviation
Organization), established by the
convention on the International Civil
1.)Performing an acts of
violence against a person on
board an aircraft in flight;
2.) Destroying an aircraft in
service of causing damage to
such an aircraft;
3.) Placing or causing to be
placed on an aircraft, in service
a device or substance which is
likely to destroy that aircraft;
Basis
Article 7, 1970 Hague Convention and the
Montreal Convention which provides as
follows:
The Contracting State in the territory of
which the allege offender is found shall, if it
does not extradite him, be obliged, without
exception whatsoever and whether or not
the offence was committed in its territory,
to submit the case to its competent
authorities for the purpose of prosecution.
Those authorities shall take their decision
in the same manner as in the case of any
ordinary offence of a serious nature under
the law of that State.
2.OUTER SPACE
BAR QUESTION, 2003
Q-What is outer space?
A-The area that lies beyond the
airspace of the Earth. But as to
where it begins, there is no
university accepted reference
point. The Outer Space Treaty did
not define outer space because of
its non-identifiable dimension.
Over the years, several definitions
have also been supported:
PLES/DOCTRINES IN PUBLIC
INTERNATIONAL LAW)
In connection with treaties
PACTA SUNT SERVANDA-(Treaties
must be observed in good faith). If
a treaty is contrary to a
signatorys national constitution,
the international legal orders
demands a faithful compliance
with the treaty to avoid
international embarrassment. If
necessary, the State concerned
must even modify its national
legislation and constitution to
CONCORDATS-agreements entered
into by the Pope with various heads
of States.
DECLARATIONS-these are formal
reciprocal agreements which may
deal with: (1) the rights and
privileges of the nationals of a state;
or (2) principles in accordance with
which States propose to act; or (3)
grounds for mutual action on the
part of States (Wilson and Tucker,
op. cit. p. 209). There are two special
kinds of declaration
10.TREATY-It is an
international agreement
embodied in a single, formal
instrument entered into by
and between signatory States
or international organizations
of States, intended to create
rights and obligations, or to
establish relationships,
governed by international law.
It is important because
of the rich natural
resources found therein.
This is , in fact,
incorporated in the
Petroleum Act.
7.Exclusive Economic
Zone-It is the zone which
extends up to 200 miles
from the low water mark
or the baselines as the
case may be.
8.Archipelago Doctrine
diplomatic immunities
and privileges
1.Asylum- is the
authority of a State to
allow an alien who has
sought refuge from
prosecution or
persecution to remain
within the territory and
under its protection.
3.Exterritorial Asylum-Asylum in
what are considered the
extensions of a States
territory. This type includes:
asylum in foreign public ships;
diplomatic asylum-the protection
afforded by a state to a refugee
by granting him an asylum in or
upon its diplomatic buildings
within the territory of the State
that wants him. (Ibid)
X. In connection with
forbidden methods of
warfare
1. No quarter method
An order to the effect
that no survivors are to
be left open after an
attack. This is inhuman
and not allowed as a
method of warfare.
2.Starvation method-Starvation
of the civilian population is
inhuman.
3.Reprisals-Acts of vengeance by
a belligerent directed against
groups of civilians or prisoners of
war.
4.Perfidy or Treachery It is the
treachery for soldiers who have
surrendered to take up arms and
attack the enemy.
2. Tender and exercise of good officesIt exist when third party, either alone
or in collaboration with others, offers
to help in the settlement of a dispute.
When the offer is accepted, there shall
be an an exercise of good offices.
3.Mediation-A third party offers to help
with a solution , usually based on
compromise (as contradistinguished
from good offices mediation offers a
solution; good offices merely brings
that parties together).
(d) On motion by a UN
Member (Article 35, No.
1, UN Charter)
(e) On motion by a NonMember of the UN
(Article 35, No. 2, UN
Charter)
of acquiring territories
Discovery this is an old mode
of acquiring ownership when
territories which were not yet
discovered and occupied can be
acquired by the discovering
state under the principle of
Terra Nulius (which means
that since it is a territory which
is not yet owned by or
belonging to any State
[Stateless territory], it can be
acquired under the principle of
Prescription-Elements of prescription as a
mode of acquiring territory:
Possession which must be continuous, public
and adverse.
Lapse of a reasonable period of time (which is
a question of fact and dependent on the
circumstances of each case.)
3.Cession It is a mode of acquiring territory
made either voluntarily (sale of donation) or
involuntary (on account of or as a result of
war).
Example:
Cession of Alaska by Russia to the US in 1867 .
Cession of the Philippines by Spain to the US
(Treaty of Paris, December 10, 1896)
(a)Accessio Continua
Accession occurring as a
consequence of forces
external of the thing
itself.
(b.)Accessio DiscretaAccession occurring as a
consequence of forces
inherent in the thing
itself.
of international law
1.State- is a community of
person, more or less numerous,
permanently occupying a
fixed territory, possessing an
organized government,
independent of external
control, to which a great body
of inhabitants render habitual
obedience. (Malcolm and
Laurel, Philippine
Constitutional Law, 3rd ed., 3,
citing Garner, Introduction to