Part 6 Nachura - Public International Law

PUBLIC INTERNATIONAL LAW

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General Principles A. International Law defined Traditional Branch of public law w/c: Regulates relations of States & of other entities granted int’l personality. *This def’n focuses on subjects w/c are entities possessing: - int’l personality & - w/ rights & obligations recognized under international law, As against objects w/c are persons or things in w/c rights are held & oblig assumed by the subjects of int’l law+

Modern Law w/c deals w/: - Conduct of States & int’l org - Their relations w/ each other - & their relations w/ persons, natural or juridical

B. Basis of Int’l Law Law of Nature School -natural & universal principle of right & wrong -independent of mutual intercourse/ compact w/c can be discovered & recognized by every indiv. through the use of his reason & conscience.

Possitivist School -Binding force of int’l law: derived from agreement of States to be bound by it. -int’l law is not a law of subordination but coordination

Ecletic or Groatian School -conforms to the dictates of right reason -the voluntary law may be said to blend w/ the natural law & be an expression of it -in case of conflict, the natural law prevails, being the more fundamental law

C. Public International Law distinguished from: Private In’t Law A. As to nature: Int’l vs. municipal B. As to remedies: Int’l modes vs. local tribunals C. As to parties: Int’l entities vs. private persons D. As to enforcement: Int’l sanctions vs. sheriff/ police

Int’l Morality/Ethics Govern relations of States from the standpoint of a. Conscience b. Morality c. Justice d. Humanity

D. Int’l Law as true law 2

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Int’l Comity Rules of politeness/courtesy observed by States in their relations w/other States

Int’l Diplomacy -objects of: a) int’l policy & b) conduct of foreign affairs

Int’l Admin. Law Regulates relations & activities of: a)nat’l & b)int’l agencies w/respect to their: a)material & b)intellectual interests w/c have received int’l recognition

Although it may not comply w/John Austin’s concept of law, i.e., enforced by sovereign political authority, nonetheless it is still a true law Application, enforcement, & compliance. Absence of a central law-making authority & the jurisdictional defects,weaken the expectation of compliance in comparison w/ the situation in the domestic plane. These considerations are, however, balanced by the risk of political/ economic retaliation & other sanctions such as a. adverse public opinion b. retorsions c. reprisals d. the UN machinery e. conviction that obedience will redound to the public good E. Relationship w/ Municipal Law (ML)

Monist No substantial distinction between int’l law & municipal law. (oo eto lang to)

Dualist ML - issued by a political superior for observance by those under its authority consists of enactments of lawmaking authority

IL - not imposed but adopted by states as a common rule of action - derived from such sources as int’l customs, conventions or gen. principles of law -relations between states & int’l persons -redressed through state-to-state transactions

- regulates relations of indiv. among themselves -violations are redressed through local judicial & administrative processes -collective -breaches entail indiv responsibility responsibility

Doctrine of Incorporation Expressed in S2 Art2 “The Phils. Renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land & adheres to thepolicy of peace…”

Doctrine of transformation Requires the enactment by the legislative body of such int’l law principles as are sought to be part of municipal law

Conflict between International Law & Municipal Law On the domestic sphere, w/a local court deciding a) if conflict is w/Consti: 3

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International sphere, w/an int’l tribunal deciding International law is superior to municipal law,

uphold Consti b) if conflict is w/statute: doctrine of incorporation decrees that rules of int’l law are given equal standing w/, but not superior to national legislative enactments. A treaty may repeal a statute & a statute may repeal a treaty; thus, the principle of lex posterior derogate priori, that w/c comes last in time, will usually be upheld by the municipal tribunal

because int’l law provides the standard by w/c to determine the legality of a State’s conduct.

F. Sources of Int’l Law

Domestic sphere Constitution, legislative enactments, & case law (stare decisis).

International Plane It’s complicated (hiyess!) because there is no body likened to a nat’l legislature, no fundamental law, & the doctrine of precedents is not applicable.

However, most authoritative enumeration is found in Art. 38, Statute of the Int’l Court of Justice w/c provides that the Court, whose function is to decide in accordance w/ Int’l Law such disputes as are submitted to it, shall apply: PRIMARY SOURCES 1. International Treaties & conventions The Rome Statute - Signed July 17, 1998 - Effective July 1, 2002 - Based on the principle of complementarity - Made Philippines part of the International Criminal Court. It is a modern initiative and rather ambitious because an individual can be tried therein and he cannot invoke immunity. - No Retroactivity - Gives primacy to local courts - No Death Penalty 2. International Customs -

Prevailing practice Repeated over considerable period of time Opinio Juris

3. General Principles of law -

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Natural Law Observed and Organized

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

To these may be added the principle of ex aequo et bono (what is good & just), provided that the parties to the dispute agree thereto, as provided in Art. 38 (1) Statute of the International Court of Justice

Interpretation of Art. 38 - Although the provision is silent on the question of whether the 3 primary sources have the same hierarchic value, by practice, treaties take precedence over customs, & customs over general principles of law, except: The principle of jus cogens – customary int’l law w/c w/c has a status of peremptory (absolute, uncompromising, certain) norm of int’l law. Peremptory norm- accepted & recognized by int’l community of states as a rule from w/c no derogation is permitted, & w/c can be modified only by a subsequent norm having the same character. Ex. slave trade, piracy & terrorism SECONDARY SOURCES 1. Judicial decisions – ICJ. Whether the norm has been accepted as a rule of international law. 2. Writings of publicists – Fair and unbiased representation of international law by acknowledged authorities in the field.

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Subjects of International Law A. Distinction between subject & object of international law Subject An entity that has rights & responsibilities under int’l law; Can be a proper party in transactions involving the application of the law of nations among members of the int’l community. Includes: States, colonies, & dependencies, mandates & trust territories, the Holy See (Vatican City), the UN, belligerent communities, international administrative bodies, & to a certain extent, individuals.

Objects A person or thing in respect of w/c rights are held & obligations assumed by the subject; Not directly governed by the rules of int’l law; It’s rights are received, & its responsibilities imposed, indirectly through the instrumentality of an int’l agency.

B. States Group of people living together in a fixed territory, organized for political ends under an independent government, & capable of entering into int’l relations w/ other states. ELEMENTS a. b. c. d.

People- both sexes, sufficient in number to maintain & perpetuate themselves Territory- fixed portion on the earth’s surface Govt- organized, w/ ctrl over & capable of maintaining law & order w/in the country Sovereignty/ independence- freedom from outside ctrl in the conduct of its foreign (&internal affairs)

Other suggested elements of a state: a. civilization b. recognition- wherein state acknowledges the existence of another state, gov’t, or belligerent community & indicates its willingness to deal w/ the entity as such under int’l law. THEORIES ON RECOGNITION: A. Constitutive (majority view) - Recognition is the act w/c constitutes the entity into an int’l person. - Recognition is compulsory & legal; may be compelled once the elements of a state are established B. Declarative (majority view)Recognition merely affirms an existing fact, like the possession by the state of essential elements. It’s discretionary & political BASIC RULES ON RECOGNITION 6

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A. B. C. D.

It’s a political act Discretionary on the part of recognizing authority Exercised by political (executive) department of state Legality & wisdom- not subject to judicial review

REQUIREMENTS FOR RECOGNITION OF GOV’T 1. 2. 3. 4.

Gov’t is stable & effective, w/no substantial resistance to its authority Gov’t must show willingness & ability to discharge int’l oblig. Gov’t must enjoy popular consent or approval of the people

Tobar/ Wilson Doctrine Stimson Doctrine Precludes recognition of any No recognition of a gov’t gov’t established by established through external revolutionary means until aggression constitutional reorganization by free election of representatives

Estrada Doctrine Since recognition has been construed as approval (& nonrecognition, disapproval) of gov’t established through judicial upheaval, a state may not issue a declaration giving recognition to such gov’t, but merely accept whatever gov’t is in effective control w/o raising the issue of recognition. Dealing or not dealing w/the gov’t is not a judgment of legitimacy of the said gov’t

KINDS OF RECOGNITION De facto -Extended by the recognizing state w/c believes that some of requirements for recognition are absent. -Recognition is generally provisional and limited to certain juridical relations. -Does not bring about full diplomatic intercourse & does not give title to assets of the state held/ situated abroad De Jure -Extended to gov’t fulfilling requirements for recognition -when there’s no specific indication, recognition is generally considered de jure -relatively permanent -brings about full diplomatic intercourse & observance of diplomatic immunities, & -confers title to assets abroad EFFECTS OF RECOGNITION -diplomatic relations -right to sue in courts of recognizing state -immunity from jurisdiction -entitlement to property w/in the recognizing state

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-retroactive validation of the acts of the recognized state/govt, such as acts of state and thus, sovereign immunity covers past, present & future acts RECOGNITION OF BELLIGERENCY; CONDITIONS 1. 2. 3. 4.

Organized civil gov’t having ctrl & supervision over the armed struggle Serious & widespread struggle w/uncertain outcome Occupation of substantial portion of the nat’l territory Willingness of rebels to observe to observe rules of war

EFFECTS OF RECOGNITION OF BELLIGERENCY Responsibility for acts of rebels resulting in injury to nationals of the recognizing state shall be shifted to the rebel gov’t; Legitimate gov’t recognizing the rebels shall observe the laws of war in conducting hostilities Third states recognizing the belligerency shall maintain neutrality, and Recognition is only provisional (for the duration of the armed struggle) & only for the purpose of hostilities CREATION OF STATES 1. 2. 3. 4. 5. 6.

Revolution Unification Secession Assertion of independence Agreement Attainment of civilization

PRINCIPLE OF STATE CONTINUITY State- continues as a juristic being notwithstanding changes in its circumstances, provided only that such changes do not result in loss of any of its essential elements

Consequences

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Succession of States

Succession of Governments

- Political laws are abrogated while municipal laws remain in force - Treaties are discontinued, except those dealing with local rights and duties such as those establishing easements and servitudes - All rights of predecessor state are inherited but successor state can assume and reject liabilities at its discretion

Rights of predecessor government are inherited by successor - Where the new government was organized by virtue of constitutional reform ratified in a plebiscite, all obligations of the predecessor are likewise assumed, however, where the new government established through violence, the new government may lawfully reject purely personal or political obligations of the predecessor, but not those obligations contracted by it in the ordinary course of official business.

CLASSES OF STATES A. INDEPENDENT Has freedom to direct & ctrl foreign relations w/o restraint from other states. May be: Single Composite Single central gov’t, w/power over internal 2/ more sovereign states joined together to & external affairs constitute 1 international person, w/c may be: Real union Federal union 2/more states sre Combination of merged under a 2/more states w/c unified authority so uponmerger, cease to that they form a be states, resulting in single international the creation of a new person through w/c state w/full int’l they act as 1 entity. personality to The sy=tates retain represent them in their separate their external identities, but their relations as well as a respective certain degree of international power over their personalities are domestic affairs & extinguished & their inhabitants. blended in the new Authority over int’l person, international affairs: e.g., the former divided between United Arab Republic, federal authorities & w/Egypt & Syria. the member-states; Authority over external affairs: handled solely by federal authorities

B. DEPENDENT An entity w/c although theoretically a state, does not have full freedom in the direction of its external affairs, such as a protectorate (w/c is established at request of weaker state for the protection by a strong power) or a suzerainty(result of a concession from a state to a former colony that’s allowed to be independent subject to the retention by the former sovereign of certain powers over the external affairs of the latter. E.g., Bulgaria & Rumania, both suzerainties of the Sultan of Turkey by virtue of Treaty of Verlin) C. NEUTRALIZED Independence & integrity are guaranteed by an int’l treaty on the condition that such state obligates itself never to take up arms against another (except self-defense), or to enter into an int’l obli. as would indirectly involved it in war, e.g., Switzerland, Austria

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Vatican city & the Holy See Holy See- has all constituent elements of statehood (people: less than 1000 individuals; territory: 108.7 acres; gov’t w/the Pope as head; & independence by virtue of Lateran Treaty of 1929 w/c constituted Vatican as a territory under sovereignty of Holy See) It has all the rights of the state, including diplomatic intercourse, immunity from foreign jurisdiction, etc D. Colonies & Dependencies COLONY Dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit another country but remain subj of mother state

DEPENDENCY Territory distinct from the country in w/c supreme sovereign power resides, but belongs rightfully to it, &subject to laws & regulations w/c sovereign may prescribe.

E. Territories under Int’l court / supervision Non-self-governing territories placed under int’l supervision/ctrl to insure their political, eco, soc & educ advancement. Ex. mandates w/c are former territorial possessions of the states defeated in World War I & placed under the control of League of Nations. Many of these mandates became trust territories placed under the trusteeship council of the UN F. The United Nations 1. Historical development. 2. UN charter - Closest to Consti. Governs relations of int’l persons. -Technically a treaty, a contract under doctrine of pacta sunct servanda although it actually applies even to non-member states, at least in so far as “may be necessary for maintenance of international peace & security” Amendment: a. 2/3 vote of GA mem & ratified by 2/3 of UN members. b. General conference called by majority vote of GA & any 9 members of Security Council (SC), may propose amendments by a 2/3 vote of the conference & shall take effect when ratified by 2/3 of UN mem Purpose: Prevention of war, maintenance of int’l peace & security, dev’t of friendly relations among the members of int’l community, int’l cooperation, harmony of actions of nation 3. Membership: Classes Original or Elective Qualification Member must be a state, peace loving, accept the obligation under the charter and be able and willing to carry out these obligations Admission Decision of 2/3 of those present and voting in the GA upon recommendation of at least 9 members of the Security Council Suspension Same vote as admission. Suspended member cannot participate in GA meetings. Can’t be elected to or continue to serve in the Security council, Economic and 10

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Expulsion Withdrawal

social Council, Trusteeship council but nationals may continue the secretariat and the ICJ although a member is still subject to discharge its obligation under the charter. To lift the suspension, a qualified majority vote of the Security Council is needed. 2/3 vote of those present and voting in GA upon recommendation of qualified majority of SC on grounds of persistently violating principles in the charter No provision on withdrawal, although there is actually no compulsion for continued membership if the member feels constrained to withdraw due to exceptional circumstances

4. Organs: A. General Assembly- consists of all members of organization, each of w/c is entitled to send not more than 5 representatives & 5 alternates. Each member only has 1 vote. Functions: 1. Deliberative 2. Supervisory 3. Financial 4. Elective 5. Constituent B. Security Council - key organ in maintenance of int’l peace & security. .

Functions: 1. Maintain in’t peace & security 2. Investigate disputes & call disputants to settle their differences through peaceful means 3. Recommend methods of adjustment of disputes 4. Determine existence of threats to peace, breach of peace, acts of aggression, & make appropriate recommendations 5. Undertake preventive & enforcement actions

Preventive action Enforcement action Provisional measures to prevent a conflict from Deployment of air, sea, and land forces, or worsening in the Institution of a blockade. Domestic jurisdiction clause - SC may take necessary steps for settlement of disputes including preventive or enforcement action. The only limitation is that the dispute must be international, not domestic in character. C. Economic & Social Council Composed of 54 members elected by GA for a 3yr term. Shall exert efforts towards higher standards of living, conditions of economic & social progress & dev’t, solutions of int’l economic, soc, health & related problems D. Trusteeship Council

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Duty of assisting SC & GA in administration of Int’l Trusteeship system. E. Secretariat Chief administrative organ of UN. Headed by sec gen chosen by GA upon recommendation of SC. Sec Gen- highest rep of UN & is authorized to act in its behalf; his staff are also international civil servants, & can’t receive instructions from any gov’t or source outside the UN. He also enjoys right of political initiative F. Int’l Court of Justice Principal judicial organ of UN. Composed of 15 mem, 9yr term, must be of high moral char & possess qualify required in their respective countries for appointment to their highest judicial offices Jurisdiction of the Court is based on the consent of the parties in accdce w/the optional jurisdiction clause, & the court may decide on interpretation of treaties, any question of int’l law, the existence of facts constituting breach of int’l oblig G. Belligerent Communities H. International Administrative Bodies Certain admin bodies created by agreement among states, may be vested w/ int’l personality provided they are non-political & are autonomous & not subj to ctrl by any state >Unlike States w/c possess gen competence, int’l org are governed by the principle of specialty, that is, they are invested by the Stated w/c create them w/powers, the limits of w/c are a function of common interest whose promotion those states entrust to them. I. Individuals -

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Objects, not subjects of int’l law Granted a certain degree of int’l personality under a number of int’l agreements like: UN Charter provisions, Universal Declaration of Human Rights provision on “inherent dignity & equal & inalienable rights of all members of human family, some treaties like Treaty of Versailles, w/c confer on individual the right to bring suit against States before National or int’l tribunals

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Fundamental Rights of State A. Existence & Self- preservation The most basic & impt right. UN Charter: rt of state to individual & collective SD if an armed attack occurs against such state, until the SC has taken measures to maintain int’l peace & security. Needs: clear showing of grave & actual danger and must be limited by necessity Aggression: use of armed force by a state agaist sovereignty, territorial integrity, or political independence of another state inconsistent w/ UN charter. The 1 st use of armed force by a state in contravention of UN charter is prima facie evidence of an act of aggression. B. Right to sovereignty & independence Sovereignty Totality of powers, legal competence & privileges of a state arising from customary int’l law, & not dependent on the consent of another state

Independence Freedom to conduct foregn relations w/o outside ctrl. Rt to independence- natural aspiration of people but not an absolute freedom

Intervention- state interferes in the domestic or foreign affairs of another state through use of force/ threat of force C. Right of Equality What is really guaranteed is legal or sovereign equality. “equal in law, rights of sovereignty, personality, territorial integrity & political independence respected by others”. Act of State Doctrine Every sovereign state is bound to respect the independence of every other state, & the courts of 1 country will not sit in judgment on the acts of the gov’t of another, done w/in its territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves Doctrine of State Immunity As a consequence of independence, territorial supremacy & equality, a state enjoys immunity from the exercise of jurisdiction (legislative, executive or judicial) by another state, unless it has given consent, waived its immunity, or voluntarily submitted to the jurisdication of the court concerned. Neither may its public property be attached or taxed, nor its public vessels be boarded, arrested or sued. Based on the principle of par in parem non habet imperium. Restrictive application of the doctrine This immunity however is recognized only w/respect to sovereign or public acts of the state, & cannot be invoked w/ respect to private or proprietary acts. Immunity extends to diplomatic personnel to the UN, its organs, & specialized agencies, & to int’l organizations. Waiver of immunity 1. When state gives consent at the time the proceeding is instituted 13

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2. When it takes steps relating to the merits of the case before invoking immunity 3. When, by treaty or contract, it had previously given consent 4. When by law or regulation in force at the time the complaint arose, it has indicated that it will consent to the institution of the proceedings

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Right To Territorial Integrity & Jurisdiction A. Territory Fixed portion on earth’s surface on w/c the State settles & over w/c it has supreme authority. The components of the territory of the State are the terrestrial, fluvial, maritime and aerial domains. B. Land Territory Modes of acquisition Discovery & occupation Territory not belonging to any State or terria nullius is placed under sovereignty of the claiming state. “Discovery” alone, merely creates an inchoate right; Must be followed w/in a reasonable time by effective occupation & administration.

Prescription

Cession

conquest

accretion

Acquired through continuous & uninterrupted possession over a long period of time, just like in civil law. In international law however, there is no rule of thumb as to the length of time needed. Grotius doctrine of immemorial prescription – speaks of uninterrupted possession going beyond memory.

May be voluntary through a treaty of sale, e.g., the sale of Alaska by Russia to the US, or through a treaty of donation. May also be involuntary or forced

No longer recognized mode, as UN charter prohibits use of force or threat against territorial integrity or political independence of any State. [Stimson Doctrine]

Increase in land area of State either through natural means or artificially through human labor

C. Maritime Territory 1. Internal (national) waters - Bodies of water w/in the land mass such as rivers, lakes canals, gulfs, bays & straits - Rivers- may be nat’l, boundary, or international Thalweg doctrine- for boundary rivers, in the absence of an agreement between the riparian States, the boundary line is laid on the middle of the main navigable channel Middle of the bridge doctrine- if there’s a bridge over a boundary river, boundary line is the middle or center of the bridge 2. Archipelagic waters

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Vessels may be allowed innocent passage w/in archipelagic waters, but this rt may be suspended after publication, in the interest of int’l security. The coastal state may also designate archipelagic sea lanes for continuous, unobstructed transit of vessels. 3. Territorial Sea Belt of sea between coast & internal waters of coastal state on one hand & high seas on the other, extending up to 12 nautical miles from low watermark or in the case of archipelagic states, from baselines 4. Contiguous Zone Extends up to 12 nautical miles from territorial sea. Technically not part of territory of state. Coastal state may exercise limited jurisdiction over contiguous zone, to prevent infringement of customs, fiscal, immigration or sanitary laws. 5. Exclusive Economic Zone Extends up to 200 nautical miles from low watermark or baselines, as the case may be. 6. Continental Shelf Sea-bed & subsoil of submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin does not extend to that distance. The coastal state also enjoys the right of exploitation of oil deposits & other resources in the continental shelf. 7. High seas Treated as res communes or res nullius & thus, are not territory of any particular State. The traditional view is freedom of high seas Freedom of navigation refers to the right to sail ships on the high seas, subject only to int’l law & laws of the flag state. Settlement of disputes arising from the UN convention on the Law of the Sea “Failing a bilateral settlement, Art. 286 provides that any dispute shall be submitted for compulsory settlement to 1 of the tribunals having jurisdiction.” D. Air Territory Air space above the land & waters of the state In the International Convention on Civil Aviation (Chicago convention) The contracting parties recognize that every State has complete & exclusive sovereignty over the airspace above its territory” but does NOT include outer space as it is considered as res communes. Other States have no rt of innocent passage over the air territory of another State. 5 Freedoms (of air transportation for scheduled International services 1. To fly across the territory w/o landing 2. Land for non-traffic purposes 3. Land to put down passenger, mail, mail, cargo of flag territory 16

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4. Land to take passenger, mail, mail, cargo of flag territory 5. To put down passenger, mail, & cargo from these territories Outer space Rules governing high seas apply also to outer space, w/c is considered as res communes. Under customary int;l law, States have right to launch satellites in orbit over the territorial air space of other states. Pursuant to Outer Space Treaty of 1967, “outer space is free for exploration & use by all states; it cannot be annexed by any State; & may be used exclusively for peaceful purposes” Theories of where outer space begins -lowest altitude for artificial earth satellites to orbit w/o being destroyed by friction (90kms above earth) -theoretical limits of air flights (84kms) -functional approach, i.e.. that the rules shall not depend on the boundaries set but on the nature of the activity undertaken E. Jurisdiction Power/authority exercised by State over land, persons, prop, transactions & events. Bases of Jurisdiction Territorial principle State may exercise juris only w/in its territory. Exceptionally, it may have juris over persons & acts done outside its territory depending on the kind of juris it invokes. No territorial limit over civil matters, but the state, as a GR, has criminal juris only over offenses committed w/in its territory except over a. Continuing offenses b. acts prejudicial to the national security of state c. universal crimes d. offenses 17

Nationality principle Statew/juris over its nationals anywhere in the world, based on the theory that a national is entitled to the protection of the state wherever he may be. Applies to civil matters. (art15 NCC) not to crim offenses

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Protective principle Statew/juris over acts committed abroad (by nationals or foreigners) w/c are prejudicial to its nat’l security or vital interests. (see Art2 RPC)

Universality Statew/jurisdiction over offenses considered as universal crimes regardless of where committed & who committed them. Univ.crimesthreaten the int’l community as a whole & are considered crim offenses in all countries, e.g. piracy, jure gentium, genocide, white slave trade, hijacking, terrorism, war crimes.

Passive personality Statejurisdiction over crimes against its own nationals even if committed outside its territory. May be resorted to if other principles are not applicable.

covered by special agreement (although this is now obsolete) Exceptions from jurisdiction: a. doctrine of state immunity b. acts of state doctrine c. diplomatic immunity d. immunity of the UN, its organs, specialized agencies, other int’l org & its officers e. foreign merchant vessels exercising the rt of innocent passage* or arrival under stress**  navigation through the territorial sea of the state for purpose of traversing that sea w/o entering internal waters, or of proceeding to internal waters, or making for the high seas from internal waters, as long as it is not prejudicial to the peace, good order or security of the coastal state.  involuntary entrance, may be due to lack of provisions, unseaworthiness of vessel, inclement weather or other force majeure such as pirate pursuit f. foreign armies passing through or stationed in the territory w/ permission from state g. warships & other public vessels of another state operated for non-commercial purposes. They are generally immune from local jurisdiction under the fiction that they are floating territory of the flag state. Their crew mem are immune from jurisdiction when onshore duty but this immunity will not apply if the crew members violate local laws while on furlough or offduty Jurisdiction over maritime territory a. over internal waters Same juris as over the land area, since internal waters are deemed assimilated in land mass. In case of foreign merchant vessels docked in a local port or bay, the coastal State exercises jurisdiction in civil matters, but crim juris is determined accdg to the: I. English Rule Coastal state shall have jurisdiction over all offenses committed on board vessel, except those w/c do not compromise the peace of the port II. French rule Flag state w/juris over all offenses committed on board the vessel, except those which compromise the peace of the port b. over archipelagic waters Same rule as in internal waters, save for innocent passage of merchant vessels through archipelagic sea lanes c. over territorial sea Crim juris over foreign merchant vessels shall be determined by application of either the English rule or French rule.

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Innocent passage & involuntary entrance are recognized exceptions, provided that in case of involuntary entrance, the distress on the vessels must be real. d. over contiguous zone Coastal State may exercise ctrl necessary to prevent infringement of its customs, fiscal, immigration & sanitary regulations, & punish the said infringement e. over exclusive economic zone Coastal State has sovereign rts over EEZ for exploring & exploiting, conserving & managing the natural resources, whether living or non-living, of the seabed, subsoil, & superjacent waters, as well as production of energy from water, current & wind. Other States shall have freedom of navigation & over-flight, to lay submarine cables & pipes, etc. f. over continental shelf State enjoys right of exploitation of oil deposits & other resources in such g. over high seas Juris may be exercised by the State on the high seas over the ff: 1. Its vessels 2. pirates 3. those engaged in illicit traffic 4. in the exercise of the rt to visit & search 5. hot pursuit doctrine Jurisdiction over other territories (extra-territorial jurisdiction) A state may, by virtue of customary or conventional law, extend its jurisdiction to territory not w/in its sovereignty in the ff cases: a. assertion of personal juris b. through relations w/other states c. consequence of waiver of jurisdiction d. through principle of exterritoriality e. through enjoyment of easements & servitudes Rome Statute of the Int’l Crim Court (ICC) -Adopted in July ’98 by a conference of states in rome -Court comes into existence once 60 States have ratified the statute -Phils signed ICC on 28 Dec 2000 -As of 1-4-00, 124 countries signed the statute although only 25 have ratified the same. -Jurisdiction of the court: limited to most serious crimes of concern to the international community as a whole. : genocide, crimes angst humanity, war crimes, crimes of aggression

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Right of Legation A. Right of legation A.k.a. “right of diplomatic intercourse”. This refers to the right of State to send & rcv diplomatic missions, w/c enables the States to carry on friendly intercourse. It is not a natural or inherent right, but exists only by common consent. No legal liability is incurred by the state for refusing to send or recv diplomatic rep. Governed by Vienna Convention on Diplomatic Relations Agents of diplomatic intercourse a. Head of state b. Foreign office Establishment of Resident Missions States carry on diplomatic intercourse through permanent missions established in capitals of other states. Mission is composed of: a. Head of mission -ambassadors/ nuncios, envoys/ministers/internuncios, charges d’affaires b. Diplomatic staff c. Administrative & technical staff d. Service staff -engaged in the domestic services of the mission Diplomatic corps Doyen or head of this body- Papal Nuncio or oldest ambassador, or in absence of amb, the oldest minister plenipotentiary Appointment of envoys In Phils., it is the President who appoints, sends & instructs the diplomatic & consular representatives, & his prerogative to determine the assignment of country’s diplomatic rep can’t be questioned

a. b. c. d. e.

a. b. c. d. e. f.

Functions & duties Representing the sending state in the rcving Protecting in the receiving state the interests of the sending state & its nationals, w/in the limits allowed by int’l law Negotiating w/the gov’t of the rcving state Ascertaining by all lawful means the conditions in the rcving state & reporting these to the sending state Promoting friendly relations bet.the sending state & rcvng state & developing their eco, cultural & scientific rel Diplomatic immunities & privileges Personal inviolability Inviolability of premises & archives Rt of official communication Immunity from local juris Exemption from taxes & customs duties Other privileges w/c include the freedom of mvmt & travel in the territory of the receiving state; exemtion from all personal services & military obli

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Duration of immunities & privileges Enjoyed from the moment he enters the territory of rcvng state & shall cease only the moment he leaves the country, or on expiry of a reasonable time in w/c to do so; although w/respect to official acts, immunity shall continue indefinitely. Available even in transitu when traveling through a 3rd state on the way to or from the receiving state Waiver of Immunities made only by the gov’t of sending state if it concerns the immunities of the head of mission; in other cases, the waiver may be made by either the govt or by the chief mission. Waiver of this privilege does not include waiver of immunity in respect of execution of judgment; a separate waiver for the latter is necessary Termination of Diplomatic mission Death, resignation, removal or abolition of office, recall by sending state, dismissal by rcvng state, war between rcvng & sending state, or extinction of the state B. Consular relations Consuls- state agents residing abroad for various purposes but mainly in the interest of commerce & navigation KINDS OF CONSULS: a. Consules missiProfessional & career consuls, & nationals of appointing state b. Consules electiSelected by appointing state either from its own citizens or from among nationals abroad RANKS a. Consul general b. Consul c. Vice consul d. Consular agent APPOINTMENT Letters patent Exequatur FUNCTIONS Commerce & navigation, issuance of visa, etc IMMUNITIES & PRIVILEGES  Freedom of communication in cipher or otherwise  Inviolability of archives but not of the premises where legal processes may be served & arrests made  Exempt from localjurisdiction for offenses committed in the discharge of official functions  Exempt from testifying on official communications or on matters pertaining to consular functions  Exempt from taxes, customs duties, military/jury service  May display their nat’l flag in the consulate TERMINATION OF CONSULAR MISSION Withdrawal of exequatur; extinction of state; war 21

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Treaties Treaty acc. to the 1969 Vienna Convention on the Law of Treaties - an international agreement concluded bet States in written form and governed by international law, whether embodied in a single instrument or in two or more instruments, and whatever its particular designation. Other names for international agreements: convention, pact, protocol, agreement, arrangement, accord, final act, general act, exchange of notes. Municipal Law concept: executive agreement is not a treaty (Commish of Customs v. Eastern Sea Trading). International law standpoint: equally binding as treaties. Form. Art. 2 of the Vienna Convention: treaties should be in writing. Art. 3: an unwritten treaty does not affect its legal force. 1969 Vienna Convention: only treaties executed bet States 1986 Vienna Convention on Treaties for Internatl Orgs: treaties bet States and Intl Orgs Requisites for validity. a. Treaty-making capacity b. Competence of the rep/organ concluding the treaty c. Parties must freely give consent d. Object and subject matter must be lawful e. Ratification in accordance with constitutional processes of the parties concerned Doctrine of Unequal Treaties. Treaties which have been imposed thru coercion or duress of an unequal character is VOID. Doctrine of Jus Cogens. Customary international law has the status of a peremptory norm of international law, accepted and recognized by the international community of states as a rule from which no derogation is permitted. Treaty that contravenes jus cogens norms are invalid. Treaties and Executive Agreements. Treaties require Senate concurrence for validity. They refer to a) basic political issue, b) change in national policy, c) permanent international arrangements. Executive Agreements do not require concurrence and refer to a) adjustment of detail carrying out well-established national policies and b) temporary arrangements. a. Bayan v. Exec Sec. We cannot require the US to submit the V.F.A. to the US Senate for concurrence. It is inconsequential if US treats the VFA as a mere exec agreement bec. under international law, executive agreements are just as binding as treaties. b. Memo Circ No. 89. W/N an international agreement is purely an executive agreement – matter referred to DFA Secretary who shall make the appropriate recommendation to the President. c. Exchange of Notes. A record of a routine agreement similar to the private law contract. Agreement consists of the exchange of two documents, each of them signed by the rep of the other. Signatories are either government Ministers, diplomats or department heads. This technique is resorted to bec of its speedy procedure and to avoid process of legislative approval. 22

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2. Treaty-making Process. a. Negotiation – reps usually have the credentials known as pleine pouvoirs (full powers) emanating from competent authority that designates a person to represent. Representative can also either be a) the Head of State, b) Head of Government, c) Foreign Minister, d) head of diplomatic missions, or e) rep accredited to an international conference or organization. b. Signing of the treaty. Principle of alternat – order of naming the plenipotentiary is varied. Each party is named and its plenipotentiary signs muna his own copy. c. Ratification. State expresses its willingness to be bound by the treaty thru confirmation. Our President ratifies the treaty, subject to the concurrence of 2/3 of all the members of the Senate. President is vested with authority to a) deal with foreign states, b) extend or withhold recognition, c) maintain diplomatic relations, d) enter into treaties, and otherwise e) transact the business of foreign relations. Kahit signed na by the rep, President still has the discretion of w/n to ratify a treaty. Without his signature, the Exec Sec or DFA Sec may not be compelled by mandamus to transmit copy of the treaty for Senate concurrence. d. Entry into force. In the absence of a provision that states when it shall take force, the treaty enters into force as soon as the consent of all parties to bound is established. Accession/Adhesion – non-signatory State becomes a party to a treaty upon invitation or permission of the contracting parties. Reservation – unilateral statement where a State purports to exclude or modify the legal effect of certain provisions of a treaty. If the reservation is compatible with the object and purpose of the treaty, State remains a party. When non-signatories may be bound by a treaty. Pacta tertiis nocent nec prosunt. Treaties cannot impose obligations upon States not parties to them. Exceptions: a) Accession/Adhesion and b) Most Favored Nation Clause where a contracting State entitled to the clause may claim the benefits in a separate agreement. Pacta sunct servanda, treaties must be observed in good faith. State may even modify local laws to make them conform to the treaty and avoid international embarrassment. In the Philippines, treaties may be declared invalid if contrary to the Constitution. Rebus sic stantibus, contracting State’s obligations under a treaty terminates when a vital or fundamental change of circumstances occurs. State is allowed to unilaterally withdraw from a treaty because of the “disappearance of the foundation upon which it rests.” RULE DOES NOT OPERATE AUTOMATICALLY. Requisites for valid invocation: 1) Change is so substantial that foundation of the treaty has altogether disappeared 2) Change is unforeseen or unforeseeable at the time of the perfection of the treaty 3) Change was not caused by the party invoking the doctrine 4) Doctrine is invoked within a reasonable time 5) Duration of the treaty is indefinite 6) Doctrine cannot operate retroactively, i.e. it must not adversely affect provisions already complied with. Interpretation of Treaties must be in good faith, in accordance with the ordinary meaning given to the terms in their context and in light of its objects and purposes. Amendment/Modification require the consent of all parties, but if allowed by the treaty itself, two States may modify a provision only insofar as they are concerned. Grounds for Termination of Treaties 23

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

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Nationality and Statelessness Nationality. Membership in a political community with its concomitant rights and duties. 1930 Hague Convention: 1) State determines who its nationals are under its own law. 2) Any question as to w/n a person is a national of a State shall be determined in accordance with the law of that State. Modes of acquiring nationality 1) Birth – jus sanguinis (by blood) and jus soli (by place of birth) 2) Naturalization – thru a) marriage, b) legitimation, c) option/election, d) acquisition of domicile, e) appointment to govt office, f) grant on application. In the Philippines, naturalization is thru 1) judicial process, 2) legislative process, 3) election, or 4) marriage. However, there is no obligation on the part of the State to recognize a person’s newly acquired nationality. Municipal law may een prohibit the renunciation of one’s nationality, i.e. the doctrine of indelible allegiance. 3) Repatriation – recovery of nationality by individuals who were natural-born citizens but have lost their nationality. RA 8171 on repatriation of women who lost Filipino citizenship by marriage to aliens and repat of former NB-Filipinos who lost their Filipino citizenship. 4) Subjugation 5) Cession Loss of Nationality 1) Release e.g. German nazis 2) Deprivation e.g. Filipinos entering into military service of another State 3) Renunciation e.g. C.A. No. 63 4) Substitution, when former nationality is ipso facto lost by naturalization abroad. Multiple Nationality – more than one nationality because of concurrent application of the municipal law of two or more States. In the Philippines, dual allegiance is inimical to national interest. Sec. 5, Art. IV. Solutions to multiple nationality in the 1930 Hague Convention on the Conflict of Nationality Laws a) Person may be regarded as its national by each of the States b) In a third State, a person shall be treated as if he only had one nationality. Principle of effective nationality: either where he habitually and principally resides or where he appears in fact to be most closely connected. c) Person may renounce one of them with the permission of the renounced State. Permission shall not be refused if person has habitual residence abroad. Statelessness - status of having no nationality as a consequence of being born without it, or as a result of deprivation or loss of nationality 1954 Convention Relating to the Status of Stateless Persons Stateless Persons are granted, for as long as it is favorable to that accorded to the State’s nationals: a) Freedom to practice their religion b) Access to the courts of law c) Rationing of products in short supply 25

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

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Treatment of Aliens General Rule, no State is under obligation to admit aliens (flowing from its right of existence and as an attribute of sovereignty). State has the power to regulate the entry and stay of aliens. Expulsion or deportation predicated on the ground that 1) the stay of the alien is a menace to the security of the State, 2) his entry was illegal, 3) permission to stay has expired, or 4) he has violated any limitation or condition prescribed for his admission and continued stay. Reconduction is the forcible conveying of aliens back to their home State. Destitute aliens, vagabonds, aliens without docs, alien criminals, etc may be reconducted to the frontier without any formalities. Doctrine of State Responsibility. State is under obligation to make reparations to another State for the failure to fulfill its primary obligation to afford, in accordance with international law, the proper protection due to the alien national of the latter State. State may also be held liable for injuries and damages sustained by the alien while in the territory of the State if: 1) The act or omission constitutes an international delinquency – amounting to an outrage, to bad faith, willfull neglect of duty or insufficiency of government action* 2) The act or omission is directly or indirectly imputable to the State – State does not make reasonable efforts to prevent injury, or having done so unsuccessfully, fails to repair such injury. a. Acts of Government Officials – acts of primary agents of the State give rise to direct state responsibility. If officer acts beyond his authority, it is an act of a private individual. b. Acts of private individuals – must be shown that there was an actual or tacit complicity of the government in the act, either by directly approving it or in the patent negligence in taking measures to prevent injury. Claimant has the burden of proving negligence. 3) Injury to the claimant State indirectly because of damage to its national *International Standard of Justice – standard of the “reasonable State” Doctrine of Equality of Treatment – laws are applicable not only to aliens but to nationals as well Enforcement of Alien’s Claim 1) Exhaustion of local remedies – requirement may be dispensed with if there are no remedies to exhaust, the courts are corrupt, there is no adequate machinery for the administration of justice, or the international delinquency results from an “act of State”. a. Calvo Clause – stipulation by which an alien waives or restricts his right to appeal to his own state and agrees to limit himself to the remedies available under local laws. 2) Resort to diplomatic protection – after exhaustion, alien must avail of assistance of his state a. Tie of nationality must exist from the time of injury until the time claim is finally settled. b. UN may file a diplomatic claim on behalf of its officials Modes of Enforcement of Claims Negotiation, or if this fails, arbitration or judicial settlement.

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When responsibility of State is established, he must make reparation thru restitution, satisfaction, compensation, or all three of these together. Extradition is the surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment. Surrender is made at the request of the latter state on the basis of an extradition treaty. Deportation is the expulsion of an alien who is considered undesirable by the local state. Deportation is the unilateral act of the local state and is made in its own interests. In the absence of an extradition treaty, the local state may grant asylum to the fugitive. If surrender is made, asylum is merely a gesture of comity. Fundamental principles of Extraditon a) Based on consent – in a treaty or as an act of goodwill b) Principle of speciality – extradited fugitive may be tried only for the crime specified in the request for extradition and crime is included in the list of offenses in the extradit treaty  “Non-list” type of extradition treaties – offenses punishable under both states by imprisonment of one year or more are deemed included in the list of offenses. c) Any person may be extradited – whether a national of the requesting state or the state of refuge d) Political and religious offenders are generally not subject to extradition  Political – 2 or more parties in the state, each seeking to impose the government of their own choice on the other  Attentat clause – the murder of the head of state or any member of his family is not a political offense. Neither is genocide. e) Offense must have been committed within the territory or against the interest of the demanding state f) Act for which the extradition is sought must be punishable in both the requesting and requested states (The Rule of Double Criminality) Procedure for Extradition 2) JUDICIAL INVESTIGATION 1) REQUEST Accompanied with necessary papers to determine identity of the wanted person

Made thru diplomatic channels to the state of refuge

State of refuge to conduct investigation to ascertain if a) crime is covered by the treaty, and b) there is a prima facie case against the fugitive according to its own laws

Government of Hongkong v. Olalia – constitutional right to bail 3) WARRANT OF SURRENDER DRAWN now applies to extradition proceedings. The worth of the individual person and the sanctity of human rights is given Fugitive Is delivered to the state of refuge primacy. Both deportation and extradition are administrative proceedings where the innocence or guilt of the detainee is not in issue. Standard in granting bail – “clear and convincing evidence” that he is not a flight risk and will abide with all the orders and processes of the extradition court. Abduction of the fugitive in the state of refuge is not allowed, as it constitutes a violation of the territorial integrity of the state of refuge. If abduction is effected with the help of the nationals of the state of refuge, the state of refuge cannot later demand to return of the fugitive. Savarkar case.

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Extradition treaties of the Philippines 1976 – Indonesia 1988 – Australia 1989 – Canada 1989 – Switzerland 1990 – Micronesia Letters Rogatory – formal communication from a court in which an action is pending, to a foreign court, requesting that the testimony of a witness residing in the foreign jurisdiction be taken under the direction of the court, addressed and transmitted to the court making the request. Parang international bonggang deposition! Sec. 12, Rule 24. Asylum – the power of the state to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection. HAS NEVER BEEN RECOGNIZED AS A PRINCIPLE OF INTERNATIONAL LAW. Principles of Asylum 1) Territorial – exists only when stipulated in a treaty or justified by established usage. Depends on the liberal attitude of the receiving state, on the ground of “territorial supremacy” 2) Diplomatic – granted within “narrowest limits” or when life or liberty of person is threatened by imminent violence In the Philippines, diplomatic asylum cannot be granted EXCEPT to members of the official and personal household of diplomatic representatives. Refuge may be granted however, to fugitives whose lives are in imminent danger from mob violence (humanitarian grounds) Refugees Any person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, due to a well-founded fear of prosecution(?? Parang typo) by reason of his race, religion, nationality, political opinion. Because of such fear, he is unable or unwilling to avail of the protection of his government or his former habitual residence. Elements: 1) Outside the country of his nationality OR if stateless, outside habitual residence 2) Lacks national protection 3) Fears persecution Refugee is de jure/de facto a stateless individual. Refugee Convention of 1951 does not deal with admission but with non-foulement: no contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom is threatened.

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

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

Ad hoc

Jurisdiction is usually compulsory and law applied is independent of the will of the parties Lodged in the ICJ

Not so Any 3rd party

8. Resort to regional agencies or arrangements – parties may, on their own volition, or at the instance of the organization itself, assume the obligation of settling the dispute 9. Or other peaceful means of their own choice B. Hostile Methods 1. Severance of diplomatic relations 2. Retorsion – unfriendly by lawful coercive acts done in retaliation for unfair treatment and acts of discrimination of another state ( the levy of high discriminatory tariffs on goods) 3. Reprisal – unfriendly and unlawful acts in retaliation for the reciprocal unlawful acts of another state. Reprisal may take the form of a. Freezing of the assets of the nationals of the other state b. Embargo – forcible detention or rsequestration of the vessels and other property of the offending state 30

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c. Pacific Blockade – prevention of entry to or exit from the ports of the offending state by means of communication and transportation d. Non-intercourse – (refraining to engage in coitus hehehe joke lang) suspension of all intercourse with the offending state particularly in matters of trade and commerce e. Boycott – (less than 30% of the students in a class attended joke lang ulit) – concerted suspension of commercial relations with the offending state with particular reference to a refusal to purchase goods C. Role of the United nations – when none of the above-mentioned methods succeeds in settling the dispute, the Un may be asked or may decide on its own authority to take a hand in the settlement. Addressed to the Security Council, but may be taken over by the General Assembly under certain conditions. 1. Security Council- jurisdiction to intervene in all disputes affecting: a. International peace and security; b. All disputed, which although coming under the domestic jurisdiaciton clause have been submitted to it by the parties for settlement  May be brought to Security Council itself, General Assembly, Sectretary General, any member of the UN or any party to the dispute. i.

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

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War and Neutrality War- the contention between two states, through their armed forces for the purpose of overpowering the other and imposing such conditions of peace as the victor pleases. War does not mean the mere employment of force. If a nation declares war against another, was exists, though no force has yet been used. On the other hand, in case of reprisal, force may already be used but no state of war may yet exist.

1. Outlawry of War – condemnation of war on an international scale a. Covenant of the League of the Nations – provided conditions for the right to go to war b. Kellog- Briand Pact of 1902 – General Treaty for the Renunciation of War, ratified by 62 states which forbade war as an instrument of national policy. c. Charter of UN – Article 2 prohibits the threat or use of force against the territorial integrity or political independence of a state. 2. Commencement of War a. Declaration of War (Hague Convention of 1907) b. With the rejection of an ultimatum (Hague Convention) c. Commission of an act of force regarded by one of the belligerents as an act of war 3. Effects of Outbreak of War a. Laws of peace cease to regulate relations between the belligerents and superseded by the laws of war while third states are governed by the laws of neutrality in their dealings with the belligerents b. Diplomatic and consular relations are terminated and respective representatives are allowed to return to their own countries c. Treaties of a political nature are automatically cancelled except those intended to operated during the war. Multipartite treaties dealing with technical or administrative matters are merely suspended as between the belligerents. d. Individuals are impressed with enemy character Nationality Test Domiciliary test Activities test If they are nationals of the other belligerent,wherever they may be

If they are domiciled If being foreigners, they aliens in the territory of participate in the the other belligerent on hostilities in favor of the the assumption that they other belligerent contribute to its economic resources e. Corporations and other juridical persons are considered enemies where the controlling stockholders are national of the other belligerent or if incorporated in the territory or under the laws of the other belligerent, and may be not be allowed to continue operations. f. Enemy public property found in the territory of the other belligerent at the outbreak of the war is subject to confiscation, private property is subject to requisition.

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4. Participants in War a. Combatants – those who engage directly in the hostilities 1. Non-privileged – spies, who under false pretenses try to obtain vital information from the enemy ranks, who when caught are not considered prisoners of war 2. Privileged – when captured, enjoy the privileges of prisoners of war. a. Regular Armed Forces b. Ancillary services c. Those who accompanied armed forces d. Levees en masse e. Franc Tireurs/guerillas f. Officers and crew of merchant vessels who forcibly resist attack  Rights of POW – treated humanely, no torture, allowed to communicate with families, receive food, clothing, religious articles, etc. b. Spies c. Mercenaries i. Specially recruited to fight for a particular armed conflict ii. Takes direct part in the hostilities iii. Motivated by desire to gain 5. Conduct of Hostilities a. Principle of Military Necessity – Belligerent may employ any amount of force to compel the complete submission of the enemy with the least possible loss of lives and money b. Principle of Humanity – Prohibits the use of any measure that is not absolutely necessary for purposes of war c. Principle of Chivalry – Prohibits belligerents from the employment of perfidious or treacherous methods, such as the illegal use of Red Cross emblems. Belligerent occupation – temporary military occupation of the enemy-s territory during the war. Maintains effective control and military superiority therein, being able to send in case of attack, sufficient forces to assert its authority within a reasonable time.

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

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1. Flag of truce – White in color, indicates the desire to communicate with the enemy, agent, called parlemetaire, enjoys inviolability and is entrusted with the duty of negotiating with the enemy. 2. Cartels – agreements to regulate intercourse during the war, usually on the exchange of prisoners of war 3. Passport – written permission given by the belligerent government to the subject of the enemy to travel generally in belligerent territory 4. Safe-conduct – Permission given to an enemy subject or to an enemy vessel allowing passage between defined periods 5. Safeguard- protection granted by a commanding officer either to enemy persons or property within his command, usually with an escort or convoy of soldiers providing the needed protection 6. License to trade – permission given by competent authority to individuals to carry on trade though there is a state of war Suspension of Hostilities

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

Termination of War 1. Simple cessation of hostilities – Principle of uti possidetis, with respect to property and territoty possessed by the belligerents, is applied 2. Conclusion of a negotiated treaty of peace 3. Defeat of one of the belligerents followed by a dictated treaty of peace or annexation of conquered territory Postliminium – the revival or reversion to the old laws and sovereignty of territory which has been under belligerent occupation once control of the belligerent occupant is lost over the territory affected 1. Uti Possidetis – allows retention of property or territory in the belligerent’s actual possession at the time of the cessation of hostilities. War Crimes – acts for which soldiers or other individuals may be punished by the enemy on capture of the offender 1. War Criminal – any person, whether a civilian or a member of the armed forces of the state, who commits an act that violates a rule of international law governing armed conflicts Neutrality and Neutralization Neutrality 34

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Neutralization

Non-participation, directly or indirectly, in a war between contending belligerents Exists only during war- governed by law of the nations 

The result of treaty wherein the conditions of the status are agreed upon by the neutralized state and other signatories. Exists both in times of peace and wargoverned by the agreement into by and between the parties.

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

Rules of Neutrality – Neutrals have the right and duty to: 1. Abstain from taking part in the hostilities and from giving assistance to either belligerent by: - Sending of Troops - Official grant of loans - Carriage of Contraband Contraband – goods, although neutral property, may be seized by a belligerent because they are useful for war and are bound for a hostile destination. They can be: - Absolute – guns or ammunition - Conditional – Food and clothing - Free- List – medicines Doctrine of ultimate consumption – goods intended for civilian use which may ultimately find their way to and be consumed by belligerent forces may be seized on the way Doctrine of Infection- Innocent goods shipped with contraband may also be seized Doctrine of Continuous voyage, Transport - Goods reloaded at an intermediate port on the same vessel, or reloaded on another vessel or other forms of transportation may also be seized on the basis of doctrine of ultimate consumption. 2. Prevent its territory and other resources from being used in the conduct of hostilities. Allowing territory to be used as the base of operations 3. To acquiesence to certain restrictions and limitations which the belligerents may find necessary to impose such as: a. Blockade – hostile operation by means of which vessels and aircraft of one belligerent prevent all other vessels including those of neutral states from leaving or entering the port or coasts of the other belligerent. b. Pacific Blockade – applied only vessels of blockaded states not to those of other states. 4. Termination of Neutrality – terminates upon conclusion of a treaty of peace between the belligerents, or when the neutral state itself joins the war.

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