CHAPTER 1INTERNATIONAL LAW- Is the body of legal rules which apply between sovereign States and such other entities as have been granted international personality.DIVISIONS

1. Law Of Peace- Normal relations of States2. Law of War- during war and hostilities3. Law of Neutrality- relations with belligerents or those involved

in warDISTINCTIONS WITH MUNICIPAL LAWMONISTS- Fundamental notions of int’l law cannot be comprehended without assumption of superior legal order from which systems of municipal law are derived.DUALISTSMUNICIPAL LAW INTERNATIONAL LAWIssued by a political superior for observance by those under its authority

Adopted by States as a common rule of action

Enactments from law making authority

From sources such as int’l customs, conventions and general principles of int’l law

Regulates relations of individuals among themselves

Regulates relations between States and int’l persons

Violations redressed thru local/administrative and judicial processes

Resolved thru state-to-state transactions (negotiations/arbitration or reprisals/war)

Breaches entails Individual responsibility

Collective/attaches to state

RELATION TO MUNICIPAL LAW

DOCTRINE INCORPORATION- (emphasizes amenability to Int’l Law) By affirming their recognition of the principles of international law in their constitutionsDOCTRINE OF TRANSFORMATION- Generally, accepted rules of int’l law are not per se binding upon the State but must first be embodied in legislation enacted by the law-making body and so transformed into municipal law.

- Rule: Reconcile apparent contradiction and thereby give effect, if possible to both. Presumed that municipal law is always enacted with due regard with PIL.

SANCTIONS IN INTERNATIONAL LAWSANCTIONS - The compulsive force of reciprocal advantage & fear retaliationKinds of Sanctions

- observance will redound to the welfare of the whole international community.

- Sanction- compelling force to obey the law.- Normal habits of obedience in man as a social being- Desire to protect agreeable public image in order to

maintain goodwill and favorable regard to the rest of the family of nations. (respect for world opinion)

- Fear of retaliation by other states- Machinery of the UN - May consist of appeal to public opinion, publication of

correspondence, censure by parliamentary vote, demand for arbitration with the odium attendant on a refusal to arbitrate, reprisals etc…

PEREMPTORY- applied to something which removes or takes away an existing claim or right

- A peremptory exception is a plea which if sustained will require final dismissal of the action contracted by dilatory plea.

- A writ or order like mandamus which requires unqualified obedience contracted with an alternative writ.

INTERNATIONAL LAW AS DISTINGUISHED FROM OTHER CONCEPTSINTERNATIONAL MORALITY/ETHICS- Principles which govern relations of States from the higher standpoint of conscience, morality, justice and humanityINTERNATIONAL COMITY- Refers to those rules of courtesy observed by states in their mutual relations.INTERNATIONAL ADMIN. LAW- Body of laws and regulations, created by action of int’l conferences or commissions which regulate relations of int’l and nat’l. agencies.INTERNATIONAL DIPLOMACY- Objects of int’l or nat’l policy and conduct of foreign or int’l affairs; application of intelligence and tact in the conduct of official relations between independent statesBASIS OF INTERNATIONAL LAWNATURALIST SCHOOL- Natural and universal principle of right and wrong, independent of any mutual intercourse or compact which is supposed to be discovered or recognized by the individual through the use of his reason and conscience. International law is a law above the statePOSITIVIST SCHOOL- Binding force of int’l law derived from the agreement of states. A law of coordination not subordination. Positive identification or acknowledgement of the law necessary to make it binding, on states it purports to govern. Consent is asserted, expressed, implied, presumed.ECLECTICS- Compromise position. System of int’l law is based on the dictate of right reason as well as the practice of states. In case of conflict: natural law is to prevail.Grotius- father of int’l law. Voluntary law may blend with the natural law and be indeed the expression of it.ENFORCEMENT OF INTERNATIONAL LAWIS INTERNATIONAL LAW A TRUE LAW? If AUSTINIAN CONCEPT followed, true law only if prescribed by political superior with power to punish violators, therefore IL is not a true law.

OTHER VIEW: IL A TRUE LAW. Society may voluntarily adopt and obey although no specific penalty imposed for non-observance.OBSERVANCE ENFORCEMENTEssentially subjective dependent on volition of the entity which is governed by law

Process by which observance may be compelled usually by force or threat of force

ENFORCEMENT- process by which such observance may be compelled, usually by force or at least the threat of force.States are able to enforce international law thru international organizations or regional groups.Before resorting to Int’l Orgs may resolve thru DIPLOMATIC TALKS or HOSTILE MEANS.After war: Prosecution of war criminals & collection of reparations.May be treated as a part of municipal law.FUNCTIONS OF INTERNATIONAL LAW

1. Establish peace and order in the community of nations and to prevent employment of force in international relations.

2. Promote world friendship by leveling barriers3. Encourage and ensure greater international cooperation in the

solution of certain common problems of political, economic, cultural or humanitarian character.

4. Aims to provide for orderly management of the relations of states on the basis of substantive rules they have agreed to observe.

CHAPTER 2 ART. 387 ICJ Statute- Sources of International LawPRIMARY/DIRECT SECONDARY/INDIRECTTreatiesConventionsCustomsGeneral principles of law

Decisions of courtsWritings of publicists

ART. 387- The court, whose function is to decide in accordance with international law such disputes as are submitted to it shall apply:

a. Int’l conventions, general or particular, establishing rules expressly recognized by the contesting state

b. International custom, as evidence of a general practice accepted by law.

c. General principles of law recognized by civilized nationsd. Judicial decisions and teachings of most highly qualified

publicists of various nations, as subsidiary means for determination of rules of law

Particular IL- Ex. Bilateral treatyExcept: if of the same nature, practically uniform provisions and

concluded substantial # of states. Ex: standard extradition treaties

General Rule: to be a direct source, MUST BE CONCLUDED BY SIZABLE # OF STATES.OR if intended to lay down rules for the observance of all, subsequently signed by other states.CUSTOM- (Fenwick) A practice which has grown up between states and has become accepted as binding by the mere fact of PERSISTENT USAGE over a long period of time.Ex: Immunity for foreign heads of states or diplomats (principle of extraterritoriality)PROBLEMS:

1. Determination when a practice can be considered to have hardened enough into custom

2. Inability at times to adjust swiftly to developments. Ex. Rules of blockade.

USAGE- also a long established way of doing things by states not coupled with the conviction that it is obligatory and right. Ex. Maritime CeremonialsGENERAL PRINCIPLES OF LAW- Mostly derived from law of nature; observed by majority of states because believed to be good and just. Ex. Prescription, estoppel, pacta sunt servanda, consent, res judicata.

Based on reason and conscience.SECONDARY SOURCES

- No distinction as to decisions of int’l or nat’l tribunals.- As long as undertakes to establish true rule of law - STARE DECISIS not applicable in IL decisions of the court

binding only upon the parties.- Writings of publicists= mere qualifications not enough; fair

and unbiased representation.CHAPTER 3INTERNATIONAL COMMUNITY- Body of juridical entities which are governed by the law of nations.

- Includes other international personsSUBJECT OBJECT

- Entity that has rights and responsibilities under the law

- Faculty of Motivation: can be a proper party to transactions

- Person or thing in respect of which rights are held and obligations assumed by the subject

- Not governed by IL- Rights and

responsibilities imposed thru instrumentality of intermediate agency

STATE- A group of people living together in a definite territory under an independent government organized for political ends and capable of entering into international relationsNATION- racial/ethnic concept; indicates a relation of birth or origin and implies a common race, usually characterized by community of language and customs.ELEMENTS OF STATE/NATION

1. Permanent population2. Definite territory

3. Government4. Sovereignty or independence5. Recognition by other states6. Possession of sufficient degree of civilization

PEOPLE- human beings living in a territoryTERRITORY- fixed portion of the surface of the earth in which people of the state reside. (defined territory necessary for jurisdictional reasons)

- Must be big enough to be self-sufficient; small enough to be administered and defended.

GOVERNMENT- agency thru which the will of the state is formulated, expressed and realizedSOVEREIGNTY- power of the state to direct its own external affairs without interference or dictation from other states.CAPACITY OF STATES- recognition of a state is considered a political act which may not be compelled.

- Restricted capacity of the state to discharge int’l obligations owing either to treaty commitments or to its limited resources

CLASSIFICATION OF STATESINDEPENDENT DEPENDENT

- Full international personality

- Simple or somposite either of which neutralized

- exemplified by the protectorate and suzerainty

- do not have control of their external relations

INDEPENDENT STATES- State which is not subject to dictation from others

A. SIMPLE STATE- one placed under a single and centralized government exercising power over both its internal and external affairs.

B. COMPOSITE STATE- consists of 2 or more states, each with its own separate government but bound under a central authority

exercising, to a greater or less degree, control over their external relations.

1. REAL UNION- 2 or more states merged under a unified authority so that they form a single int’l person, thru which they act as one entity; states forming this union retain their separate entities.

2. FEDERAL UNION- Combination of 2 or more sovereign states which upon merger cease to be states, resulting in the creation of a new state with full international personality to represent them in their external relations as well as certain degree of power over their domestic affairs and inhabitants; there are some, in conformity with municipal law, do not exercise full direction.

3. CONFEDERATION- An organization of states which retain their sovereignty, while delegating to the collective power to represent them as the whole for certain limited and specified purposes; each member state, able to maintain international relations; imperfect int’l person.

4. PERSONAL UNION- 2 or more independent states are brought together under the rule of the same monarch; does not become one int’l person; external policies directed by the same rules.

5. INCORPORATE UNION- A union 2 or more states under a central authority empowered to direct both their external and internal affairs and possessed of separate international personality; differs from real union as only external affairs are controlled.

C. NEUTRALIZED STATES- WON Simple/Composite may be neutralized by agreement with other states; guarantee integrity and independence provided it refrains from taking any act that will involve it in war or other hostile activity except for defensive purposes.

NEUTRALIZED GUARANTEEINGRemove from anxiety and expenses of int’l politics.Ex. Switzerland

Humanitarian or political: balance of power or buffer to relieve international friction.

D. DEPENDENT STATES (Semi-sovereign)- a legal paradox: states of statehood implies independence, possessed of sovereignty; subject to control of other states in the direction of external affairs

UNITED NATIONSPurposes why Regarded as international person:

1. Enjoys certain privileges and immunities (e.g. nonsuability, inviolability of premises and archives, tax exemption)

2. Has a right of legation3. Can assert diplomatic claim on behalf of its officials4. Treaties may be concluded with it5. Trust territories under residual sovereignty6. Can wage war thru exercise of power to undertake enforcement

action in case of threat to or breach of int’l peace.VATICAN CITY- an observer in the UN, does not have voting right.Lateran Treaty- for the purpose of assuring to the Holy See absolute visible independce and of guaranteeing it absolute and indisputable sovereignty in the field of international relations; Sovereign of the Supreme Pontiff

- Exercises treaty making power and right of diplomatic intercourse

- Treaty recognizes full ownership, exclusive dominion and sovereign authority and jurisdiction of the Holy See over the Vatican

COLONIES AND DEPENDENCIESPart and parcel of the parent state thru which all its external relations are transacted with other states; instances where such entities have been allowed to participate in their own right in international undertakings

MANDATES AND TRUST TERRITORIESSYSTEM OF MANDATES- established to avoid outright annexation of the underdeveloped territories taken from defeated powers3 KINDS OF Trust Territories

1. Under mandate of the League of Nations2. Detached from defeated states after WW23. Voluntarily paced under by States responsible for their

administration- Sovereignty held in abeyance until recognition as

independent state is obtainedBELLIGERENT COMMUNITIES- recognizing state: while not conferring all rights of an independent state, concedes to the government recognized the rights and imposes upon it the obligations of an independent state in matters relating to war being waged; for purposes of conflict it is an international person; an inchoative state.INTERNATIONAL ADMIN BODIES2 CONDITIONS MUST CONCUR:l

1. Purposes mainly non-political2. Autonomous

INDIVIDUALSTRADITIONAL CONCEPT: Individual a concept of international law; if right violated, redress only thru the stateANOTHER VIEW: Individual is basic unit of society, national and international ultimately governed by the law of society including those theoretically binding upon states as agents of individual.Reasons:

- UN Charter reaffirms faith in fundamental HR- Universal declaration of HR recognition of inherent dignity

and of the equal and inalienable rights of all members of human family

- Treaties directly confer rights upon individuals and authorize them to bring lawsuits against states before national and international tribunals. (ex. Treaty of Versailles)

CHAPTER 4

UN Charter- 111 articles, statute of ICJ annexed and integral part.Regarded as:TREATY- derives binding force from the agreement of the parties to it.CONSTITUTION- provides for the organization and operations of the different organs of the UN; adoption of change thru amendment.

Applies not only to members of the org. but also to non-member states so far as necessary for the maintenance of int’l peace and security.

Art. 103- conflict between obligations of members of the UN under the Charter and obligations under other int’l agreement; obligations with charter prevails.

Amendments- may be proposed by 2/3 of conference; come into force upon 2/3 votes of the GA; ratified by 2/3 of members including permanent members of the SC

GENERAL CONFERENCE- may be called by majority vote of GA and 9 members of the SC for purpose of reviewing the charter.

PREAMBLE- introduces the charter and sets the common intentions that moved original members to unite will and efforts to achieve common purpose.Content:

1. To save succeeding generations from the scourge of war2. To reaffirm the faith in fundamental human rights3. To promote social progress and better standards of life4. To practice tolerance and live together in peace5. To unite strength and maintain int’l peace and security6. To ensure by accepted principles that armed force shall not be

used

7. To employ int’l machinery for the promotion of economic and social advancement of all peoples.

PURPOSE- the aggregation of common ends1. To maintain int’l peace and security2. To develop friendly relations among nations based on respect

for the principles of equal rights and self determination of peoples

3. To achieve int’l cooperation in solving int’l problems4. To be center for harmonizing the actions of nations in the

attainment of these common ends.

PRINCIPLES- deals with methods and regulating norms according to which the UN and its members shall discharge their obligations7 CARDINAL PRINCIPLES

1. Organization is based on the principle of the sovereign equality of all its members.

2. All members, in order to ensure to all of them the rights and benefits resulting from the membership shall fulfill in good faith the obligations assumed by them in accordance with present charter.

3. All members shall settle their int’l disputes by peaceful means in such manner that int’l peace, security and justice are not endangered.

4. All members shall refrain from the threat or use of force against territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN.

5. All members shall give The UN every assistance in any action it takes in accordance with the present charter; and shall refrain from giving assistance to any state against which the UN is taking preventive or enforcement action.

6. Organization shall ensure that states which are not members of the UN act in accordance with these principles so far as necessary for the maintenance of int’l peace and security

GR: Treaties binding upon parties.EXC: Principle #6

7. Principle of Non-Intervention- nothing in the Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present charter; this principle shall not prejudice application of enforcement.

MEMBERSHIP2 KINDS

1. Original- 51 members; those who participated in the UN conference & signed declaration on Jan 1972.

2. ElectiveDistinction: Manner of admission

QUALIFICATIONS FOR ELIGIBILITY1. It must be a state2. It must be peace loving3. It must accept the obligations of the charter4. It must be able to carry out these obligations5. It must be willing to carry out these obligations

Admitted thru a vote of the GA upon favorable recommendation by the SC

SUSPENSION OF MEMBERS- Takes place when preventive or enforcement action taken

by the SC- Effected thru 2/3 vote of those present in the GA upon

favorable recommendation of 9 members of SCEFFECT

1. Non-participation in meetings of the GA2. Cannot be elected or continue to serve in the SC, ESC or TC3. Nationals of suspended member may continue serving in ICJ4. Must still discharge obligations under the charter

EXPULSIONMember which persistently violates principles in the charter may be expelled by:

- 2/3 vote of those present in the GA- Upon favorable recommendation of SC by qualified majority

vote.

WITHDRAWAL OF MEMBERSNo express provisionUN May permit withdrawal if:

a. Organization was revealed to be unable to maintain peace or could do so only at the expense of law and justice

b. Member’s rights and obligations as such were changed by a charter amendment which it had not concurred or which it finds unable to accept

c. An amendment duly accepted by the necessary majority either in the GA or in the general conference is not ratified.

ORGANS OF THE UNPRINCIPAL

1. GA2. SC3. ESC4. ICJ5. Secretariat

SUBSIDIARY1. Military staff committee2. Int’l law commission3. CHR

SPECIALIZED AGENCIES1. WHO2. IMF3. Technical Asst. Board etc…

GENERAL ASSEMBLYRepresentative of the UNEach member: 5 Rep., 5alternate, technical staffRegular Session: 3rd Tuesday of SeptemberSpecial Session: @ call of majority of members or request of the SC1 VOTE/MEMBER

When 2/3 vote required:1. Recommendations on int’l peace and security2. Election of members of the council3. Admission4. Suspension and expulsion5. Trusteeship system6. Budgeting matters

All other matters majority vote of those present and voting

FUNCTIONS:1. Deliberative- ex. Initiating studies and making recommendations

for dev’t of IL2. Supervisory- receiving and considering annual & special reports

from other organs; recommendations for coordination.3. Financial4. Elective- election of non-permanent members of the SC, ESC,

TC,SG, Judges of the ICJ5. Constituent- admission of members and amendment of charter

SECURITY COUNCILKey organ for maintenance of int’l peace and security.

5 PERMANENT MEMBERS1. China2. France3. US4. UK

5. Russia

10 ELECTED MEMBERS- 2yr term5 Africa/Asia2 Latin America2 W. Europe1 E. Europe/other statesNot eligible for immediate re-election

VOTING- governed by the YALTA FORMULA1 VOTE/MEMBER

PROCEDURAL Matters- 9 or more votesSUBSTANTIVE Matters- 9 including 5 permanent membersPacific settlement of a dispute- no member who is a party to such dispute can vote.

VETO- prevent agreement on a non-procedural question even if supported by allDOUBLE VETO- it can disprove any proposal to consider a question merely procedural and thereafter vote against the question on the merits.

Absence of a permanent member in connection w/ voting on a non-procedural question is considered a veto, proposal is deemed adopted if approved by at least 9 members including remaining permanent members.

Purpose of Yalta Formula: ensure unity of permanent members.

SC may take steps for pacific settlement of disputes and preventive/enforcement action.LIMITATION: dispute is int’l unless parties submit matter to UN

SC also approves trusteeship agreements; constituent functions.

ECONOMIC AND SOCIAL COUNCILAll members elected by GA for a term of 3 years; may be re-elected immediately.

Meet in regular session in accordance with rules; special session at the request of the majority

1 VOTE/MEMBER, Decision= majority vote

Members of the UN/Specialized Agencies may participate but without vote.

EFFORT TOWARDS1. Higher Standards of living, full employment, conditions of

economic and social progress2. Solutions of int’l economic, social, health and related problems,

int’l cultural and educational cooperation3. Universal respect for and observance of HR and fundamental

freedoms without distinctionESC assisted by subsidiary organs.

May enter into agreements subject to approval of GA with specialized agencies.

INTERNATIONAL COURT OF JUSTICE- Judicial Organ of the UN- Functions in accordance with the Statute- Non-member may become a party on conditions

determined by the GA upon recommendation of the SCCOMPOSITION: 15 members; elected by absolute majority vote of GA and SC

QUALIFICATIONS1. High moral character2. Possess qualifications required in respective countries for

appointment to their highest judicial offices or3. Juriconsults of recognized competence in int’l law

- No 2 members of the court may be nationals o the same state; if more than 1 national of same state obtain majorities, only eldest considered elected

- Election of judges should assure reperesentation of main forms of civilization and principal legal systems of the world.

TERM: 9 years; may be re-electedNo judge can be removed UNLESS, in the unanimous opinion of the members, he has ceased to fulfill the required conditions.Court shall elect a PRESIDENT and VICE-PRESIDENT who shall serve for 3 years and may be re-elected.It shall remain permanently in session at the Hague or elsewhere EXCEPT during judicial vacationsMay meet either EN BANC, or in CHAMBERS composed of 3 or more judgesAll questions are decided by a MAJORITY of the judges PRESENT.Quorum: 9 when full Court is sitting.FUNCTIONS:

1. Decide contentious cases- only States, including non-members of the UN may be parties

2. Render advisory opinions.JURISDICTION- based on the consent of the parties as manifested under the OPTIONAL JURISDICTION CLAUSE (Comprises all cases which they refer to it and all matters especially provided for in the Charter, treaties or conventions in force.Advisory Opinions- may be given by the Court upon request of the GA, SC, other organs of the UN, when AUTHORIZED by the GA, on LEGAL QUESTIONS arising within the scope of their activities.

SECRETARIAT- Chief Administrative Organ of the UN headed by the Secretary-

General- Sec. Gen. Chosen by the GA upon recommendation of the SC- Term fixed at 5 Years by resolution of the GA, may be re-

elected.- Sec. Gen. highest representative of the UN, authorized to act in

its behalf.Entitled to:a. Full diplomatic immunities and privileges which only the SC

may waived.- Sec. Gen. may waive immunities and privileges of other key-

officials of the UN- Sec. Gen. with duty to:

a. Bring to SC attention matters which in his opinion threaten int’l peace and security. ( May be personally mediated by him upon authority of the SC)

b. Act as secretary in all meetings of the GA, SC, ESC and TCc. Performs other functions as may be assigned to him by the

above organsd. Prepares the budget of the UN for submission to the GAe. Provides technical facilities to diff. organsf. Coordinates vast administrative machinery

- Sec. Gen. and members of his staff are int’l officers solely responsible to the Organization, prohibited from seeking or receiving instruction from any government or any other external authority.

CHAPTER 5

STATE- Basic unit of the international community; PRINCIPAL SUBJECT OF INTERNATIONAL LAW

4 ELEMENTS1. People2. Territory3. Government4. Sovereignty

MANNER OF CREATION1. Revolution2. Unification3. Secession4. Assertion of Independence5. Agreement6. Attainment of Civilization

PRINCIPLE OF STATE CONTINUITY- From moment of creation, state continuous as a justice being

notwithstanding changes in circumstances.FENWICK: Once its identity as an international person has been fixed and its position in the international community established, the state continues to be the same corporate person, whatever changes may take place in its international operation and government.

PRINCIPLE OF STATE CONTINUITY (SAPPHIRE CASE)- The reigning sovereign represents the national sovereignty and

the sovereignty is continuous and perpetual, residing in the proper successors of the sovereign for the time being.

- Sovereignty does not change but merely the person or persons in whom it resides

EXTINCTION OF A STATE

Examples:1. Population wiped out by epidemic2. Population emigrate en masse3. Government overthrown not replaced4. State merged with another

SUCCESSION OF STATES- Takes place when one state assumes the rights and obligations

of another because of certain changes in the condition of the latter

2 TYPES1. UNIVERSAL- when a state annexed to another state or is totally

dismembered or merges with another state.2. PARTIAL- when a portion of the territory of a state secedes or is

ceded to another, or when an independent state becomes a protectorate or suzerainty; dependent state acquires full sovereignty.

CONSEQUENCES OF STATE SUCCESSION1. Allegiance of inhabitants transferred- naturalization en masse.2. Political laws of former sovereign automatically abrogated and

may be resorted only by a positive act on the part of the new sovereign.EXCEPTION: non-political laws deemed continued unless changed.

3. Treaties of political, commercial, extradition in natureEXCEPTION: Dealing with local rights and duties.

4. All rights of predecessor state inherited by the successor state but not all liabilities. Successor may choose which state.

SUCCESSION OF GOVERNMENTS

- One government replaces another either peacefully or by violent methods.

- Integrity of the state not affected.- State continuous, lawful representative changed- Rights of predecessor government are inherited in toto by the

successor government.- Obligations= distinction made according to manner of

establishment of the new government

ESTABLISHED THRU CONSTI REFORM- Duly ratified in a plebiscite, obligations of replaced government

are completely assumed.

ESTABLISHED THRU VIOLENCE- May lawfully reject purely personal or political obligations but

not those contracted in the ordinary course of official business.

CHAPTER 6- Admission in family of nations dependent upon

acknowledgment of its status by those already within the fold and willingness to enter into relations with it as a subject of international law.

2 VIEWS ADMISSION1. MAJORITY THEORY- Recognition is merely declaratory and only

affirms pre-existing fact that the entity being recognized already possesses the status of an international person.

2. MINORITY VIEW- recognition is constitutive, it is the last indispensable element that converts or constitutes the entity being recognized into an international person.

- Regarded as mandatory and legal.- May be demanded as a matter of right upon showing 4 essential

elements of a state.

- Recognition may be executed by individual states or a no. of them.Ex. Phil. President

Basis: treaty making power of the president

OBJECTS OF RECOGNITION1. STATE- generally held to be irrevocable and imports the

recognition of its government.2. GOVERNMENT- may be withdrawn and does not necessarily

signify the existence of a state as the government may be that of a mere colony.

3. BELLIGERENCY- does not produce the same effects as the recognition of states and governments because the rebels are accorded international personality only in connection with the hostilities they are waging.

KINDS OF RECOGNITION1. EXPRESS-

a. Verbal or in writingb. May be extended thru a formal proclamation c. an announcementd. a stipulation in a treatye. a letter or telegramf. On occasion of an official call or conference

2. IMPLIED- When the recognizing state enters into an official intercourse

with the new member by exchanging diplomatic representatives with it, concluding with it a bipartite treaty dealing comprehensively with their relations in general

- Acknowledging its flag or otherwise entering into a formal relations with it

- Belligerent community- recognition is implied when the legitimate government blockades a port held by the former or when other states observe neutrality in conflict

ACT CONSTITUTING RECOGNITION must give a clear indication of an intention:1. To treat with the new state as such or2. To accept the new government as having authority to represent

the state it purports to govern and to maintain diplomatic relations with it or

3. To recognize in the case of insurgents that they are entitled to exercise belligerent rights

Effect of common membership in I.O. of states not previously recognized each other- deemed to recognize each other only within said body.

RECOGNITION OF STATES- A free act by which one or more states acknowledge the

existence on a definite territory of a human society politically organized, independent of any existing state, and capable of observing obligations of international law, by which they manifest therefore their intention to consider it a member of the international community.

RECOGNITION OF GOVERNMENTS- Recognition of the new government of a state which has been

already recognized is the free act by which one or several states acknowledge that a person or a group of persons is capable of binding the state which they claim to represent and witness their intention to enter into relations with them.

2 Types Government1. De Jure- Satisfies requirements of objective and subjective test- If does not sufficiently comply may be considered as de facto

temporarily.- No indication of kind of recognition being extended PRESUMED:

DE JURE2. De Facto

a. That which is established by the inhabitants who rise in revolt against and depose the legitimate regime.

b. That which is established in the course of war by the invading forces of one belligerent in the territory of the other belligerent, the government which is also displaced.

c. That which is established by the inhabitants of a state who secede therefrom without overthrowing its government.

TOBAR or WILSON PRINCIPLE- Recognition shall not be extended to any government

established by revolution, civil war, coup, or other forms of internal violence until the freely elected representatives of the people have organized a constitutional government.

STIMSON PRINCIPLE- Against governments established as a result of external

aggression.- Incumbent upon the members of the LON not to recognize any

situation, treaty, agreement which may be brought about by means contrary to the Covenant of the LON

ESTRADA DOCTRINE- Government declared that it would, as it saw fit, continue or

terminate its relations with any country in which a political

upheaval had taken place and in so doing does not pronounce judgment, either precipitately or a posteriori, regarding the right of foreign nations to accept, maintain or replace their governments or authorities.

Current Practice: extend recognition to a new government only if shown that it has control of the administrative machinery of the state with popular acquiescence and willing to comply with its international obligations

OBJECTIVE TEST1. Government must be able to maintain order within the state 2. To repel external aggression

SUBJECTIVE TEST- may be employed for the purpose of justifying the withholding of recognition from a government that is politically unacceptable.

DE JURE- Relatively permanent- Vests title in the

government to its properties abroad

- Full diplomatic relations

DE FACTO- Provisional- No title to government

properties abroad- Limited juridical relations

EFFECTS OF RECOGNITION OF STATES AND GOVERNMENTS1. Full diplomatic relations are established except where the

government recognized is de facto.2. The recognized state or government acquires the right to sue in

the courts of the recognizing state.- Mere breach of diplomatic relations does not withdraw the

right to sue

DOCTRINE OF STATE IMMUNITY- A foreign sovereign in the municipal courts of another state

would be an insult which is entitled to resent and would certainly vex the peace of nations.

3. The recognized state or government has a right to the possession of the properties of its predecessor in the territory of 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.

RECOGNITION OF BELLIGERENCY- Exists when inhabitants of a state rise up in arms for the

purpose of overthrowing the legitimate government.

BELLIGERENT- Merely an internal affair of

the state and does not produce much international repercussion

- Under a civil government- Rules for recognition of

belligerency

INSURGENCY- Initial stage of belligerency- Directed by military

authorities- Usually not recognized

RECOGNITION EXTENDED UPON FOLLOWING CONDITIONS:1. There must be an organized civil government directing the rebel

forces2. The rebels must occupy a substantial portion of the territory

state3. The conflict between the legitimate government and the rebels

must be serious, making the outcome uncertain4. The rebels must be willing and able to observe the laws of war

CONSEQUENCES OF RECOGNITION1. Considered a separate state for purposes of the conflict.2. Relations governed by laws of war3. Relations with other states governed by laws of neutrality4. Entitled to full war status as regards all other states5. When extended, effective only as to third states extending

recognition.

CHAPTER 7

FUNDAMENTAL RIGHTS OF THE STATE1. Right of Existence & self defense2. Sovereignty and independence3. Right of equality4. Right of property and jurisdiction5. Right of legation or diplomatic intercourse

Right if existence and self defense- most comprehensive because all rights are supposed to flow or derived from it

- State may take measures as may be necessary to resist any danger to its existence.

REQUISITE- A NECESSITY OF SELF DEFENSE INSTANT, OVERWHELMING AND

LEAVING NO CHOICE OF MEANS AND NO MOMENT OF DELIBERATION

- Right may be resorted only upon clear showing of grave and actual danger to the security of the state

- Limited by necessity and kept clearly within it.REGIONAL ARRANGEMENTSArt. 52, Sec. 1

- Nothing in the present Charter precludes the existence of regional arrangement or agencies for dealing with such matters relating to the maintenance of international peace and security

as are appropriate for regional action , provided that such arrangements or agencies and their activities are consistent with the purpose of the UN.

EX. NATO

BALANCE OF POWER

An arrangement of affairs so that no state shall be in a position to have absolute mastery and dominion over others.

AGGRESSION

Art. 1- 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…

Art. 2- the first use of armed forces by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the SC may, in conformity with the charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned o their consequences are not of sufficient gravity.

Art. 3- Acts qualified as aggressiona. Invasion or attack by the armed forces of a State of the territory

of another, or any military occupation, however temporary resulting from such invasion or attack or any annexation by the use of force

b. Bombardment by the armed forces of a state against anotherc. The blockade of ports or coastsd. An attack by the armed forces on land, sea or air forces, or

marine and air fleets of another

e. The use of armed forces of one state which are within the territory of another state with the agreement of the receiving state, in contravention with the conditions provided for in the agreement or any extension of their presence beyond the termination of the agreements

f. Action of a state in allowing its territory to be used by another for perpetrating an act of aggression

g. The sending by or on behalf of a state of armed force against another of such gravity as to amount to the acts listed above…

Art. 4- acts not exclusive, SC may determine other acts which constituite aggression

Art. 5- 1. No consideration of whatever nature may serve as justification

for aggression2. A war of aggression is a crime against international peace3. No territorial acquisition or special advantage resulting from

aggression is or shall be recognized as lawful.

CHAPTER 8

SOVEREIGNTY- is the supreme, uncontrollable power inherent in a state by which that state is governed; it is the power of the state to command and enforce obedience, the power to which, all interests are practically subject and all wills subordinate.

2 ASPECTS1. INTERNAL- refers to the power of the state to direct its

domestic affairs.2. EXTERNAL- signifies the freedom of the state to control its own

foreign affairs; more often referred to as independence.

IDEAL OF INDEPENDENCE- Right to independence is a NATURAL ASPIRATION of peoples

that has, albeit only lately, received international recognition.

NATURE

FENWICK: Independence cannot be regarded as importing absolute freedom. It only means freedom from control by any other state or group of states and not freedom from the restrictions that are binding on all states forming the family of nations. Like liberty the individual must submit to limitations imposed for the welfare of the community.Ex. Principle of Mare Liberum- will prevent from arrogating to itself the exclusive use of open seas to the detriment of other states.

INTERVENTION- A State must abstain from intervention.- The right of independence carries with it the correlative duty of

non-intervetion.

DEFINITION: an act by which a state interferes with the domestic or foreign affairs of another state through employment of force or threat of force.

EXCEPTION: when exercised as an act of self-defense or when decreed by the SC as a preventive or enforcement action for the maintenance of international peace and security.

ALLOWED only in the following Instances:1. Action is agreed upon by Treaty;2. When requested by sister states;3. From the United Nations by the parties to a dispute;4. By a state beset by rebellion.

UN Declaration of Rights1. Every State has the duty to refrain from intervention in the

internal/external affairs of the State.2. No State or group of States has the right to intervene directly or

indirectly, for any reason whatever, in internal/external affairs of any other State.

3. No state may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another state and obtain advantages of any kind.

DRAGO DOCTRINE

- Contracting powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its nationals

PORTER RESOLUTION- Force of the Drago doctrine dissipated- Intervention is permitted if the debtor state refused an offer to

arbitrate the creditor’s claim, or having agreed thereto, prevented agreement on compromise, or having agreed thereto, refused to abide by the award of the arbitrator

CHAPTER 9

PRINCIPLE OF EQUALITY- all rights of a state, regardless of their number, must be observed and respected by the international community in the same manner that the rights of other states are observed and respected

PAR IN PAREM NON HABET IMPERIUM- Even the strongest state cannot assume jurisdiction over

another state, no matter how weak, or question the validity of its acts in so far as they are made to take effect within its own territory.

CHAPTER 10

TERRITORY- the fixed portion of the surface of the earth inhabited by the people of the state.

- must be permanent and indicated with precision because its limits define jurisdiction of the State.

- Must be big enough to provide for needs of the population; small enough to administer and defend from external aggression.

- Right to acquire territory, one of the fundamental attributes of the State.

- Asserted in accordance with the generally accepted principles of international law and with due regard with the territorial integrity of other States.

ACQUISITION AND LOSSI. DISCOVERY AND OCCUPATION- an original mode of acquisition

by which the territory not belonging to any State, or terra nullius, is placed under the sovereignty of the discovering state.

- need not be uninhabited provided it can be established that the natives are not sufficiently civilized and can be considered possessing only rights of habitation.

Requisites:1. Possession- must be claimed on behalf of the State by the

discoverer and may be effected thru a formal proclamation and symbolic act of raising the national flag in the territory.

- inchoate title only pending compliance with the 2nd requisite.INCHOATE TITLE- performs the function of barring other States from entering the territory until the lapse of a reasonable period with which the discovering State may establish a settlement thereon and commence to administer it.

2. ADMINISTRATIONIsland of Palmas Case“Discovery alone without any subsequent act, cannot at the present time suffice to prove sovereignty over the island…”

“An inchoate title could not prevail over the continuous display of authority by another state for such display may prevail even over a prior definitive title put forward by another state.

II. CESSION- a method by which territory is transferred from one state to another by agreement between them.

- effected by sale, donation, barter, exchange, testamentary disposition.

- Transfer effected upon the meeting of the minds.

III. SUBJUGATION- having previously conquered or occupied in the cause of war by the enemy, it is formally annexed to it at the end of that war.

IV. ACCRETION- mode of acquiring territory based on the principle of accessio cedat principali- accomplished thru both natural or artificial processes, as by gradual and imperceptible deposit of soil on the coasts of a country thru the action of water, or more effectively, by reclamation projects.

LOSSI. DERELICTION- when a state exercising sovereignty over it

physically withdraws from it with intention of abandoning altogether.

REQUISITES:a. act of withdrawal

b. intention to abandon

II. PRESCRIPTION- requires long, continued and adverse possession to vest acquisitive title in the claimant.

III. BY EROSIONIV. BY REVOLUTIONV. BY NATURAL CAUSES

COMPONENTS OF TERRITORY

A. TERRESTRIAL DOMAIN- refers to the land mass which may be integrate, dismembered,

partly bounded by water or one whole island.- May be mid-ocean archipelagoes or coastal archipelagaoes

B. MARITIME OR FLUVIAL DOMAIN- consists of bodies of water within the land mass and waters

adjacent to the coast of the state up to a specified limit.- INCLUDES:

1. internal waters2. rivers and man-made canals3. bays, gulfs, straits4. external waters in the territorial sea.

1. RIVERSa. NATIONAL- Situated completely in the territory of one state

ex. Pasig Riverb. MULTINATIONAL- flows thru the territory of several states

ex. Congoc. INTERNATIONAL- navigable from the open sea and is open

to the use of vessels from all states ex. Rhined. BOUNDARY- divides territory of riparian states ex. St.

Lawrence River

THALWEG DOCTRINE- absence of specific agreement between such states, boundary line is laid on the river, on the center of its main channel.

- if it changes its course by a gradual and normal process (accretion/erosion) dividing line follows the new course.

- If deviation is violent and abrupt (avulsion) boundary line will continue to be laid on the od bed of the river, in the absence of contrary agreement.

2. BAYS- well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast.

- indentation not a bay unless area is as large or larger than a semi-circle whose diameter is a line drawn across the mouth of that indentation.

- If distance between low water marks of the natural entrance points does not exceed 24 miles, a closing line may be drawn and waters enclosed thereby considered internal waters.

- Rule does not apply to historic bays.

3. TERRITORIAL SEA- belt of waters adjacent to the coast of the state excluding the internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction.

UN CONFERENCE ON THE LAW OF THE SEA

1. Convention on the territorial sea (1958) and the contiguous zone;

- convention on the high seas;- convention on fishing & living resources of the high seas;- convention on the continental shelf

2. Question of breadth of territorial sea (1960)

3. Convention on the law of the sea (1970)- uniform breadth of 12 miles for territorial sea; contiguous zone of 12 miles from outer limits of the territorial sea.- economic zone/patrimonial sea extending 200 miles from low water mark of the state.

PHILIPPINE TERRITORIAL SEA- based on TREATY LIMITS THEORY- territorial sea of the Philippines should embrace all the non-

internal waters comprised within the limits set forth by treaty of Paris.

ARCHIPELAGO DOCTRINE (Art. I Sec. I Consti)- all islands within the Philippines should be considered one

integrated whole instead of being fragmented into several units each with its own territorial sea.

ARCHIPELAGO- group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity or which historically have been regulated as such.- Basis of art. 1 Sec. I Consti. RA 3046 ammended by RA 5446

METHODS OF DEFINING TERRITORIAL SEAA. NORMAL BASELINE METHOD- territorial sea is drawn from the

low-water mark of the coast, to the breadth claimed, following its sinuosities and curvatures but excluding the internal waters in bays and gulfs.

B. STRAIGHT LINE BASE METHOD- straight lines are made to connect appropriate points on the coast without departing radically from its general direction.

AERIAL DOMAIN

- airspace above the terrestrial domain and the maritime and fluvial domain of the state, to an unlimited altitude but not including outer space.

“Under terms of existing international conventions and customary international law, states have complete and exclusive sovereignty in the airspace above their territories and territorial waters. The concurrent existence of a region in space which is not subject to the same regime raises such questions as where airspace ends and where outer space begins. It was noted that these limits do not necessarily coincide.

CHAPTER 11

JURISDICTION- the authority exercised by a state over persons and things within or sometimes outside the territory, subject to certain exceptions.

May be exercised by a state over:A. Its nationalsB. Terrestrial domainC. Continental shelfD. Open seasE. Aerial domainF. Outer spaceG. Other territories

KINDS OF JURISDICTION1. PERSONAL JURISDICTION- the power exercised by a state over

its nationals. - it is based on the theory that a national is entitled to the

protection of the state.- Doctrine of Indelible Allegiance- an individual may be compelled

to retain his original nationality notwithstanding that he has

already renounced or forfeited it under the laws of the second state whose nationality he has acquired.Ex. Art. 15, 16 Civil Code

- an alien may be held subject to the laws of a state whose national interest he has violated, notwithstanding the offense has been committed outside the territory. (Art.2 RPC)

2. TERRITORIAL JURISDICTIONGeneral Rule: a state has jurisdiction over all persons and property within its territory.

The Schooner Exchange vs. McFaddon- “ the jurisdiction of the nation within it’s own territory is necessary, exclusive and absolute”.

Exceptions: The State cannot exercise jurisdiction even within its own territory over:a. Foreign states, heads of states (doctrine on sovereign

equality), diplomatic representatives, and to consuls (to have ful freedom in the discharge of their official duties) to a certain degree.

b. Foreign state property, including embassies, consulates, and public vessels engaged In non-commercial activities.

c. Acts of states- every state is bound to respect the independence of other sovereign states.

d. Foreign merchant vessels exercising the rights of innocent passage or arrival under stress.Innocent Passage- navigation through the territorial sea of a state for the purpose of traversing that sea without entering internal waters, or of proceeding to internal waters, as long as it is not prejudicial to the peace, good order or security of the coastal state.

e. Foreign Armies passing through or stationed in its territories with its permission.

f. Such other persons or property including organizations like the United Nations, over which it may, by agreement, waive jurisdiction.

Land Jurisdiction- everything found within the terrestrial domain of the state is under its jurisdiction. The local State has exclusive title to all property within its territory which is subject to the inherent powers of the state.

Maritime and Fluvial Jurisdiction- the internal waters of a state are assimilated to the land mass and subjected to the same degree of jurisdiction exercised over the terrestrial domain.

- civil, criminal and administrative jurisdiction is exercised by the flag state over its public vessels wherever they may be, provided they are not engaged in commerce.

-

The Schooner Exchange vs.Mcfaddon- “national ships of war entering the port of a friendly power open for their reception are to be considered as exempted by the consent of that power from its jurisdiction.

- Foreign merchant vessels docked in local port or bay, jurisdiction is exercised over them by the coastal state in civil matters, but criminal jurisdiction is determined according to either English or French rule.a. ENGLISH RULE- Coastal state shall have jurisdiction over all

offenses committed on board such vessels except only where they do not compromise the peace of the port. (applies in the Philippines)

b. FRENCH RULE- the flag state shall have jurisdiction over all offenses committed on board such vessels, except only when they compromise the peace of the port.

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, subject to its jurisdiction.

CONTIGUOUS ZONE- in a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the control necessary to:a. prevent infringement of its customs, fiscal, immigration or

sanitary regulations within its territory or territorial sea, and;

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

CONTINENTAL SHELF- refers to:a. the seabed and subsoil of submarine areas adjacent to the

coast but outside the territorial sea to a depth of 200 meters, or beyond that limit, to where the depth of the superjacent waters admits of exploration of the natural resources of the said areas;

b. to the seabed and subsoil of similar areas adjacent to he coasts of islands.

- Coastal state has the sovereign right to explore the continental shelf and to exploit its natural resources.

- Coastal state allowed to establish on the open seas immediately above the installations a safety zone with radius of 500 meters over which may exercise proper jurisdiction.

- Above rights exclusive: if not exercised no other state may undertake activities or claim without consent of coastal state.

PATRIMONIAL SEA- exclusive economic zone or the patrimonial sea extends 200 nautical miles from the coast or the baselines.

OPEN SEAS- the open seas or high seas are res communes and available to the use of all the states for purposes of navigation.

- in times of war, hostilities may be waged on the open seas.

A state may exercise jurisdiction on the open seas in the following instances:1. Over its vessels

Merchant vessels- when it is within its territory, when jurisdiction is waived or cannot be exercised by the territorial sovereign, or when such vessels are on the open seas.Lotus Case: In the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceeding may be instituted against such persons except before the judicial or administrative authorities either of the flag state or of the state of which such person is a national.

2. Over Pirates.3. In the exercise of the right of visit and search- Under laws of

neutrality, the vessel of a belligerent state may visit and search any neutral merchant vessel in the open seas and capture it if found or believed to be engaged in activities in favor of another belligerent state.

4. Under the doctrine of hot pursuit- If an offense is committed by a foreign merchant vessel within the territorial waters of a coastal state, its own vessels may pursue the offending vessel into the open sea and upon capture bring it back to its territory for punishment. REQUISITES:

A. Pursuit must be begun before offending vessel left the territorial waters, contiguous zone of a coastal state

B. Pursuit must be continuous or unabates.

AERIAL JURISDCTION5 AIR FREEDOMS

1. Freedom to fly across foreign territory without landing2. Freedom to land for non-traffic purposes3. Freedom to put down traffic originating in the State of the

aircraft4. Freedom to embark traffic destined for the state of the aircraft5. Freedom to embark traffic destined for or to put down traffic

originating from a third state.

- it is the state of registration of the aircraft that has jurisdiction over offenses and acts committed on board while it is in flight or over the high seas or any other area outside the territory of the state.

OUTER SPACE- not subject to the jurisdiction of any state. - celestial bodies shall be free for exploration and use by all states

without discrimination of any kind, on basis of equality.- Astronauts shall be regarded as envoys of mankind.- State launching an object to outer space shall retain jurisdiction

and control over such objects and over any personnel thereof.

OTHER TERRITORIESState may extend its jurisdiction beyond its territory and over territory not falling under its sovereignty. This is effected thru the following ways:

1. Through assertion of its personal jurisdiction over its nationals abroad or exercise of its right to punish certain offenses committed outside its territory against its national interest.

2. On the strength of its relations with other states or territories, when it established a colonial protectorate, condominium or administers a trust territory

3. As consequence of waiver of jurisdiction by a local state over persons and things within its territory

4. Through acquisition of extraterritorial rights.

EXTERRITORIALITY EXTRATERRITORIALITYRefers to exemption of persons and property from the local jurisdiction on the basis of international custom

Applies only to persons and is based on treaty or convention

Has become discredited because of the rise of nationalism and sovereign equality of states

Illustrated by immunities of the heads of states in foreign countries

5. Through enjoyment of easements or servitudes (e.g. innocent passage, arrival in distress)

CHAPTER 12

AGENTS OF DIPLOMATIC INTERCOURSE

- Diplomatic relations conducted thru the head of state, foreign secretary or minister, members of the diplomatic service

- Head of state may appoint special diplomatic agents charged with specific ceremonial or political duties.a. Envoys Ceremonial- attend state functionsb. Envoys Political- commissioned to negotiate with particular

state or participate in international conference

HEAD OF THE STATE- embodiment of or at least represents the sovereignty of his

State. - Entitled to immunities and honors:

a. Right to special protection for his physical safety and preservation of his honor

b. Quarters, archives, properties, transportation are inviolatec. Exempt from criminal and civil jurisdiction except when he

is the plaintiffd. Not subject to tax, to exchange or currency restrictionse. Ceremonial amenities unless traveling incognito

FOREIGN SECRETARY- immediate representative of the head of state and directly

under his control- can make binding declarations on behalf of the state on any

matter falling within his authority (i.e. recognition of states, gov’ts, settlement of international claims)

- also the head of the foreign office and has direction of all ambassadors and other diplomatic representatives

DIPLOMATIC ENVOYS- Entrusted members of the foreign service who are accredited by

the sending state as its permanent envoys.Heads of Diplomatic Missions

1. Ambassadors or nuncios accredited to heads of state2. Envoys, ministers or internuncios accredited to heads of state.3. Charges d’affaires accredited to ministers for foreign affairs

- diplomatic matters are now usually discussed with foreign secretaries regardless of the diplomat’s rank.

- Distinction in rank important only in connection with matters of protocol or grant of special honors

DIPLOMATIC CORPS- body consisting of the different diplomatic representatives who

have been accredited to the same local or receiving state.- Does not possess any legal powers or attributes

Doyen du Corps- the oldest member with the highest rank, in catholic countries, the Papal Nuncio

APPOINTMENT OF ENVOYS- class to which heads of their missions are to be assigned shall be

agreed upon between the states concerned- sending state must make certain that the agreement of the

receiving state has been given for the person it proposes to accredit as head of the mission to that state

- appointment not a matter of municipal law

Agreation- means by which informal inquiries are addressed to the receiving state regarding a proposed diplomatic representative of the sending state. Receiving state must manifest its agreement of consent, also informally.

COMMENCEMENT OF DIPLOMATIC MISSIONHead of Mission- considered as having taken up his functions in the receiving state either when:

a. presented his credentialsb. notified his arrival and a truecopy of his credentials to the

foreign ministry.Credentials include:

1. letter of credence- means by which he is accredited to the receiving state with the request that full faith and credit be given to his official acts.

2. Diplomatic passport3. Official instructions4. Cipher or code book for use in sending secret communications

DIPLOMATIC FUNCTIONS1.2. Protecting in the receiving state the interests of the sending

state and its nationals3. Negotiating with the government of the receiving state4. Ascertaining by lawful means conditions and developments in

the receiving state and reporting thereon to the government of sending state

5. Promoting friendly relations between the sending and receiving states and developing their economic, cultural and scientific relations

- Diplomatic mission may also perform consular functions in the absence of a consular mission from the sending state.

CONDUCT OF DIPLOMATIC MISSION- Must exercise utmost discretion, tact, preserving the goodwill of

the sending state.- Avoid interference with its internal affairs

DIPLOMATIC IMMUNITIES AND PRIVILEGESReason: necessary to give the envoy the fullest freedom or latitude in the exercise of his official functions.

a. personal inviolabilityb. immunity from jurisdictionc. inviolability of diplomatic premisesd. inviolability of archivese. inviolability of communicationf. exemption from testimonial dutiesg. exemption from taxationh. other privileges- members of mission freedom of movement

and travel; diplomatic agents exempt from personal services from all public services, military obligations; right to use the flag

and emblem of the sending state on the premises of the mission.

THE DIPLOMATIC SUITE OR RETINUE- Immunities and privileges are available not only to the head of

mission and his family but also to the other members of the diplomatic retinue but not in the same degree.

Diplomatic Retinue- consists of diplomatic staff, the administrative and technical staff and the service staff.

Administrative and technical staff enjoys the same rights as the diplomatic staff except immunity from civil and administrative jurisdiction shall not extend to unofficial acts

Private Servants, if not nationals of the receiving state, enjoy only exemption from dues and taxes on their income from the mission.

DURATION- Immunities commence from the moment he enters the territory

of the receiving state until his functions as such has come to an end.

- Immunities and privileges are available in situ and in transit

TERMINATION OF DIPLOMATIC MISSIONMission may come to an end through any of the usual methods of terminating official relations governed by municipal law.

Under international law:1. RECALL- may be demanded by the receiving state when the

foreign diplomat becomes persona non grata to it for any reason. (ex. Making derogatory statements against the receiving state)

2. DISMISSAL- if demand is rejected by the receiving state, or even without making a request for recall, the receiving state may resort to the more drastic method of dismissal. (offending diplomat is simply asked to leave the country).

CHAPTER 13

CONSULS- State agents residing abroad for various purposes but mainly in the interest of commerce and navigation

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

KINDS AND GRADESCONSULES MISSI CONSULES ELECTIProfessionals or career consuls who are nationals of the appointing state and are required to devote their full time to the discharge of their consular duties

May or may not be nationals of the appointing state and perform their consular functions only in addition to their regular callings

- heads of consular posts are classified according to importance:1. consul-general2. consul3. vice-consul4. consular agent

APPOINTMENTAuthority derived from 2 principal sources:

1. letter patent or letter de provision- commission issued by the sending state

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

FUNCTIONS1. Commerce- promote commercial interests of the sending state,

to observe commercial trends and developments2. Navigation- visiting and inspecting vessels of their own states3. Duties respecting the issuance of passports and visas4. Duties of protection of nationals

IMMUNITIES AND PRIVILEGES- Consuls not being diplomatic officials do not enjoy the

traditional diplomatic immunities and privileges- Exempt from criminal proceedings regarding the discharge of

their official functions but not with regard to other offenses.- Civil suits may be filed in their personal or private capacity- Legal processes and arrests may be served in premises where

consular work are not performed- Communication may be curtailed or restricted if exercised to

the prejudice of the receiving state

TERMINATION OF CONSULAR MISSION- Consul’s office may end in accordance with usual modes of

terminating official relations under municipal law.- Exequatur may also be withdrawn by the receiving state

CHAPTER 14

TREATY- a formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treaty-making capacity, for the purpose of regulating their mutual relations under the law of the nations

In the generic sense: conventions, declarations, covenants, acts, concordats etc…

FUNCTIONS1. To settle finally actual and potential conflicts2. Make it possible for the parties to modify rules of international

customary law by means of optional principles or standards3. They may lead to a transformation of unorganized international

society into one which may be organized on any chosen level of social integration

4. Frequently provide the humus for the growth of international customary law

ESSENTIAL REQUISITES1. Entered into by parties with the treaty-making capacity- must

have full capacity unless limited by reason of their status or previous self-imposed inhibitions.

2. Through their authorized representatives-it is for municipal law to determine which organ of the state shall be empowered to enter into treaties

- a state is not bound by a treaty made in its behalf by an organ or authority not competent under the law to conclude the treaty; however the state may be responsible for an injury resulting to another state for reasonable reliance by the latter upon reservation that such organ or authority was a competent to conclude the treaty.

3. Without the attendance of duress, fraud, mistake, or other vice of consent

4. On any lawful subject-matter

5. In accordance with their respective constitutional processes- governed by international law except with respect to method of ratification.

TREATY MAKING PROCESS

1. NEGOTIATION- representatives provided with credentials known as full powers which they exhibit to other negotiators at the start of the formal discussions. One of the parties presents a draft of the proposed treaty together with counter proposals which become the basis of the negotiation

2. SIGNATURE- when negotiators finally decide on the terms of the treaty, it is opened for signature. Primarily intended for authenticating the instrument and symbolizing good faith of the parties.

3. RATIFICATION- formal act of the state by which it confirms and accepts the provisions of the treaty concluded by its representatives. An ungratified treaty cannot be the source of obligations between the parties.

- there is no legal obligation to ratify a treaty, but refusal to ratify must be based on substantial grounds.

Reservations- to avoid total rejection of a treaty, the ratification is qualified or made conditional. The same must be accepted by the other party if these would constitute a modification of the original agreement.

Philippines: Power to ratify vested in the president; senate only to give or withhold consent to the ratification. President cannot ratify a treaty without concurrence of 2/3 of all members of the Senate.

4. CHANGE OF INSTRUMENTS OF RATIFICATION- usually signifies the effectivity of the treaty unless different date has been agreed upon by the parties.

BINDING EFFECT OF TREATIES

GEN. RULE: Treaty is binding only on contracting parties,

EXCEPTION:1. ACCESSION- including not only the original signatories but also

other states, which although they may not have participated in the negotiation of the agreement, have been allowed by is terms to sign it later.

2. treaty may be merely a formal expression of customary international law which as such is enforceable on all civilized states because of their membership to the family of nations.

3. Most-favored –nation clause- a contracting state entitled to the most-favored-nation treatment from the other may claim the benefits extended by the latter to another state in a separate agreement.

OBSERVANCE OF TREATIESPacta Sunt Servanda- performance in good faith of treaty obligations.

Doctrine of Rebus sic stantibus- exception to pacta sunt servanda. Constitutes an attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions with relation to which parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable.Limitations:

1. applies only to treaties of indefinite duration2. the vital change must have been unforeseen or unforeseeable 3. should not have been caused by the party invoking the doctrine4. doctrine must be invoked within a reasonable tine5. cannot operate retroactively upon provisions of the treaty

already executed prior to the change of circumstances

INTERPRETATION OF TREATY- to give effect to the intention of the parties.

TERMINATION OF TREATIES1. Expiration of the term, which may be fixed or subject to a

resolutory condition2. Accomplishment of the purpose3. Impossibility of performance4. Loss of subject-matter5. Desistance of the parties, through express mutual consent,

desuetude, or exercise of the right of denunciation(withdrawal), when allowed.

6. By novation7. By extinction of one of the parties if the treaty is bipartite8. By vital change of circumstances under the doctrine of rebus sic

stantibus9. By outbreak of war between the parties10. By voidance of the treaty because of the defects in its

conclusion, violation of its provisions by one of the parties or incompatibility with international law or UN Charter.

CHAPTER 15

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

ACQUISITION1. acquired by birth2. acquired by naturalization

JUS SOLI- Nationality of the state where he is born.JUS SANGUINIS- Nationality of his parentsNATURALIZATION- process by which a foreigner acquires, voluntarily or by operation of law, the nationality of another state; may be DIRECT or DERIVATIVE.

a. DIRECT- effected by:1. individual proceedings, usually judicial, under general

naturalization laws2. by special act of the legislature3. by collective change of nationality4. in some cases by adoption of orphan minors as nationals of

the state where they are born.b. DERIVATIVE

1. on the wife of the naturalized husband2. on the minor children of the naturalized parent3. on the alien woman upon marriage to a national.

MULTIPLE NATIONALITY- more than one nationality. Ex. Child born to Filipino parents (jus sanguinis) born in the U.S. (jus soli)

Doctrine of Indelible Allegiance- an individual may be compelled to retain his original nationality notwithstanding that he has already renounced or forfeited it under the laws of a second state whose nationality he has acquired.

LOSS OF NATIONALITY- may be lost voluntarily or involuntarilty

VOLUNTARY METHODS1. RENUNCIATION (Express or Implied)2. REQUEST FOR RELEASE (preceded by acquisition of new

nationality)INVOLUNTARY METHODS

1. FORFEITURE (result of disqualification or prohibited act like enlistment in foreign army or long continued residence in a foreign state)

2. SUBSTITUTION

CONFLICT OF NATIONALITY

RULES under the Hague Convention on the Conflict of Nationality Laws1. State to determine under its law who are its nationals. Law shall

be recognized by other states.2. Any question as to whether a person possesses the nationality

of a particular state shall be determined in accordance with the law of the state.

3. Person having 2 or more nationalities may be regarded as a national of each State.

4. State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also posseses

5. Within a 3rd state a person having more than one nationality shall be treated as if he had only one. Third state may recognize exclusively either nationality of the person where he has principally resided or where mostly connected.

6. Person possessing 2 nationalities acquired without any voluntary act on his part may renounce one of them with the authorization of the state he desires to surrender.

STATELESNESS- condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another.

- Any wrong suffered by him thru act or omission of a state would be damnum absque injuria for in theory there is no other state that has been offended and no international delinquency committed.

- Does not mean that stateless person without recourse. Under Covenant relating to Status of Stateless Persons, he is entitled to:a. right to religionb. access to courtsc. educationd. public relief and assistancee. treatment no less favorable than that accorded to aliens.f. Other rights granted under the Universal Declaration of HR

CHAPTER 16

DOCTRINE OF STATE RESPONSIBILITY- A state may be held responsible for:

a. an international delinquencyb. directly or indirectly imputable to itc. which causes injury to the national of another state.

Liability will attach to the state where its treatment of the alien falls below the international standard of justice or where it is remiss in according the protection or redress that is warranted by the circumstances

INTERNATIONAL STANDARD OF JUSTICE- a standard of the reasonable state, referring to the ordinary

norms of official conduct observed in civilized jurisdictions. It is not deemed satisfied if

a. the laws of a state are intrinsically unjust as when there is a marked disproportion between the degree of an offense and the penalty imposed for it.

b. They authorize summary decision of contentious cases without observance of notice and hearing

FAILURE OF PROTECTION OR REDRESS- even if laws conform to the international standard of justice,

the state may still be held liable if it does not make reasonable efforts to prevent injury to the alien or having done so unsuccessfully, fails to repair such injury.

Responsibility does not immediately attach to the state upon showing of a failure to prevent or redress injury.Gen. Rule: where the international delinquency was committed by superior gov’t officials or organs, liability will attach immediately.Exc.: Where the offense is committed by inferior gov’t officials or by private individuals, the state will be held liable only if by reason of its indifference in preventing or punishing it, it can be considered to have connived in effect in its commission

EXHAUSTION OF LOCAL REMEDIES- Enforcement cannot be claimed by injured foreigner unless he

first exhausts all available local remedies for the protection or vindication of his rights.

- State must be given opportunity to do justice in its own regular way.

RESORT TO DIPLOMATIC PROTECTION- If injured foreigner has exhausted all local remedies without

success, he may then avail himself of the assistance of his state.

ENFORCEMENT OF CLAIM

- international claim may be resolved thru negotiation or any other methods of settling disputes.

- If responsibility of state is established, duty to make reparation will arisea. restitutionb. satisfactionc. compensation

AVOIDANCE OF STATE RESPONSIBILITY- applied more frequently to tortious rather than contractual

liability.CALVO CLAUSE- Stipulation by which the alien waives or restricts his right to appeal to his own state in connection with any claim arising from the contract and agrees to limit himself to the remedies available under the laws of the local state.

EXCLUSION OF ALIENSDEPORTATION- removal of an alien out of the country because his presence is deemed inconsistent with the public welfare and without any punishment being imposed or contemplated either under the laws of the country or to where he is being sent.

EXCLUSION- denial of entry to an alien.

EXTRADITION- surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment. Required only if there is a treaty between the state of refuge and the state of origin.

Basis: in pursuance of policy or as a gesture of comity.

FUNDAMENTAL PRINCIPLES OF EXTRADITION1. Extradition is based on the consent of the state of asylum as

expressed in a treaty or manifested as an act of goodwill.

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 extradition treaty

3. Any person may be extradited, whether he be a national of the requesting state, of the state of refuge or of another state

4. Political and religious offenders are generally not subject to extradition. To constitute a political offense, there must be 2 or more parties in the state each seeking to impose the government of their own choice on the other.

ATTENTAT CLAUSE- murder of the head of state or any member of his family is not to be regarded, as a political offense for purposes of extradition

5. In the absence of special agreement, the offense must have been committed within the territory or against the interests of the demanding state

6. The act for which the extradition is sought must be punishable in both the requesting and requested states under what is known as the rule of DOUBLE CRIMINALITY

PROCEDURE OF EXTRADITION1. If surrender of fugitive is sought, request for his extradition is

presented through diplomatic channels. Request accompanied by necessary papers relative to the identity of the wanted person and the crime alleged to have been committed which he has already been convicted.

2. Upon receipt, state of refuge will conduct a judicial investigation to ascertain if the crime is covered by the extradition treaty and if there is prima faci case against the fugitives accdg. To its own laws

3. If there is, warrant for surrender will be drawn4. Fugitive delivered to the state of origin

CHAPTER 17

International Dispute- an actual disagreement between states regarding the conduct to be taken by one of them for the protection or vindication of the interest of the other.

2 Kinds of Dispute1. Legal- involves justiciable rights based on law or fact susceptible

of adjudication by a judicial or arbitral tribunal2. Political- if it cannot be decided by legal process on the basis of

substantive rules of international law because of the differences of parties which spring from animosities in their mutual attitudes.

METHODS OF SETTLINGICJ- jurisdiction is dependent on the consent of the partiesSC- powers are markedly limited except in case on international peace and securityGA- inhibited from discussing dispute at the time under consideration by the SC

AMICABLE METHODS1. Negotiation- discussion undertaken by the parties themselves of

their respective claims/counterclaims with a view to their just and orderly adjustment

2. Inquiry- investigation of the points in question on the theory that their elucidation will contribute to the solution of the differences between the parties

3. Good offices- third party attempts to bring the disputing parties together in order to enable them to discuss the issues in contention and arrive at an agreement

4. Mediation- third party actively participates in discussions in order to reconcile their conflicting claims

5. Conciliation- services of the third party is solicited by the parties in dispute

6. Arbitration- solution of a dispute by an impartial third party7. Compromise- essentially judicial and the award is, by previous

agreement binding on the parties to the dispute8. Judicial settlement- tribunal is a pre-existing and permanent

body, jurisdiction is compulsory, law applied is independent of the will of the parties, issues submitted are legal.

9. Resort to regional and international organizations

HOSTILE METHODS

RETORSION- any action taken in retaliation where the acts complained of do not constitute a legal ground of offense but are rather in the nature of unfriendly acts but indirectly hurtful to other states. The act of retaliation is also unfriendly but not illegal and may be in kind or of a different nature than the act that provoked it.Ex. Severance of diplomatic relations

REPRISALS- an act of self-help on the part of the injured state, responding after an unsatisfied demand to an act contrary to international law on the part of the offending state. They have the effect of momentarily suspending relations of the 2 states. Illegal if a previous act contrary to international law had not furnished the reason for them.

UNITED NATIONS

SC shall have jurisdiction to intervene in:a. all disputes affecting international peace and securityb. all disputes which, although coming under the domestic

jurisdiction clause have been submitted to it by the parties for settlement. Disputes may be brought by?1. SC

2. GA3. Any member of the UN4. Any party to the dispute, provided in case of non-members

of the UN, they should accept in advance obligations of pacific settlement under the charter

- UN Charter provides that SC shall call on the parties in the first instance to settle the dispute by peaceful means.

- If unable to adjust their differences by themselves thru peaceful methods, SC may recommend proper methods of adjustment taking into considerationa. amicable measures already adoptedb. legal disputes should be referred to the ICJ

- If above measures still unavailing, SC may recommend such actual term of settlement as it may consider appropriate.

- If terms of the settlement are rejected by any of the parties. SC is empowered to take more drastic steps:a. preventive action- partial interruption of economic relations

and of rail, sea, air, postal etc… severance of diplomatic relations

b. enforcement action- action taken thru air, sea, land forces necessary to maintain or restore international peace and security (ex. Blockade)

Military Staff Committee- consists of chiefs of staff of the permanent members of the SC or their representatives supposed to give advise and assist the SC on all questions relating to its military requirements for the maintenance of the international peace and security, employment and command of forces placed at its disposal, regulation of armaments, and possible disarmament. Also responsible for strategic direction of any armed forces at its disposal of the Council.

Uniting for Peace Resolution- If SC fails to exercise its primary responsibility for lack of unanimity, in any case where there appears to

be threat to the peace etc… the GA shall consider the matter immediately with a view to making recommendations to the members for collective measures.

- if GA not in session may meet in emergency special session within 24 hours of the request therefore either by any 9 members of the SC or by a majority of the UN.

CHAPTER 18

2 VIEWS:1. WAR as SPECIFIC ACTION- armed contention between the public

forces of states or other belligerent communities, implying the employment of violence among the parties as a means of enforcing their respective demands upon each other

2. As SPECIFIC STATUS- may exist even without the use of force.

LAWS OF WAREnforced thru:

a. protest lodged by one belligerent, usually accompanied or followed by an appeal to world opinion against the unlawful acts of warfare committed by the other belligerent;

b. reparation for damages caused by the defeated belligerentc. punishment of war criminals

Commencement- starts with a declaration of war, with rejection of an ultimatum or with the commission of an act of force regarded by at least one of the belligerents as an at of war.

EFFECTS OF OUTBREAK OF WAR1. laws of peace cease to regulate relations of belligerents and are

superseded by the laws of war2. Diplomatic and consular relations between belligerents are

terminated

3. Treaties of political nature are automatically cancelled except those which are intended to operate during war.

4. Individuals are impressed with enemy character: a. under the nationality test- nationals of other belligerent

stateb. domiciliary test- domiciled aliens in the territory,

assumption that they contribute to its economic resourcesc. activities test- participation in hostilities in favor of other

belligerent5. Enemy public property found in territory of other belligerent at

the outbreak of hostilities is, with certain exceptions, subject to confiscation.

COMBATANTS AND NON-COMBATANTS

Following are regarded as combatants1. members of the armed forces except those not actively engaged

in hostilities2. irregular forces such as guerrillas provided that

a. they are commanded by a person responsible for his subordinates

b. they wear a fixed distinctive sign recognizable at a distancec. they carry arms openlyd. they conduct their operations in accordance with the laws

and customs of war3. inhabitants of unoccupied territory who, on approach of the

enemy, spontaneously take arms to resist the invading troops without having had time to organize. Levee en masse

4. officers of the crew of a merchant vessel who forcibly resist attack

CONDUCT OF HOSTILITIESBasic principles of Warfare

1. Principle of Military Necessity- belligerents may, subject to the other two principles, employ an amount and kind of force to compel the complete submission of the enemy with least possible loss of live, time and money

2. Principle of Humanity- prohibits the use of any measure that is not absolutely necessary for the purposes of the war (ex. Poisoning of wells and weapons, destruction of works of art and property devoted to religious or humanitarian purposes etc…)

3. Principle of Chivalry- basis of such rules that require the belligerents to give proper warning before launching bombardment or prohibit the use of perfidy in the conduct of the hostilities

KINDS OF WARFARE1. LAND2. AIR 3. SEA

BELLIGERENT OCCUPATION1. does not result in transfer or suspension of the sovereignty of

the legitimate government2. it is required to restore and ensure public order and safety

while respecting, unless absolutely prevented, the laws in force in the country

3. may promulgate new laws, non-political as well as political provided they do not contravene with principles of international law

4. political laws automatically abrogated upon the end of the occupation but non-political laws may continue even beyond the occupation unless expressly repealed or modified

5. permitted to exact from the populace contributions over and above the regular taxes for the needs of the army in occupation or for the administration of the territory

6. permitted t introduce military currency7. private property cannot be confiscated except tjose susceptible

of military use.8. Army in occupation can only take possession of cash, funds and

realizable securities which are strictly the property of the state9. Regarded only as administrator and usufructuary of public

buildings, real estates, forests, agricultural estates.

POSTLIMINIUM- that in which persons or things taken by the enemy are restored to the former state on coming actually into the power of the nation to which they belong. Also imports the reinstatement of the authority of the displaced gov’t once control of the enemy is lost over territory affected.

NON-HOSTILE INTERCOURSE1. Flag Truce- white flag carried by an individual authorized by one

belligerent state to enter into communications with the other.

2. Cartels- agreements to regulate intercourse during war such as postal, communication, reception of flag truce etc..

3. Passport- written permission of belligerent government or its authorized agent to the subjects of the enemy state to travel generally in belligerent territory

4. Safe-conduct- pass given to an enemy subject or to an enemy vessel allowing passage between defined points

5. Safeguard- protection granted by a commanding officer either to enemy persons or property within his command

6. License to trade- permission given by competent authority to individuals to carry on trade even though there is a state of war

SUSPENSION OF HOSTILITIES1. Suspension of Arms- temporary cessation of the hostilities by

agreement of the local commanders for such purposes as the gathering of the wounded and the burial of the dead

2. Armistice- suspension of all hostilities within a certain area or in the entire region of the war agreed upon by the belligerent govts usually for purposes of arranging terms of the peace

ARMISTICE SUSPENSION OF ARMSPurpose is political Purpose is militaryConcluded by the commanders-in-chief

Agreed upon by local commanders

In writing May be oral

3. Ceasfire- unconditional stoppage of hostilities by an order of an international body

4. Truce- ceasefire with conditions attached

5. Capitulation- surrender of military forces, places or districts in accordance with the rules of military honor.

TERMINATION OF WAR1. may be terminated by simple cessation of hostilities, by the

conclusion of a negotiated treaty of peace, 2. or by defeat of one of the belligerents followed by a dictated

treaty of peace or annexation of the conquered country3. terminated by defeat of one of the belligerents, which

surrenders either conditionally or unconditionally.