PIL - Atty. Duka

PUBLIC INTERNATIONAL LAW Atty. Cecilio D. Duka, Ed.D.* Associate Dean, College of Law San Sebastian College, Manila International Law Defined International law is the body of legal rules which apply between sovereign states and such other entities as have been granted international personality. Basis of International Law 1. The Law of Nature School - There is a natural and universal principle of right and wrong, independent of mutual intercourse or compact, which can be discovered and recognized by every individual through the use of his reason and conscience. Since individual compose the state whose will is but the collective will of the inhabitants, the state also becomes bound by law of nature. 2. The Positivist School - The binding force of international law is derived from the agreement of the states to be bound by it. In this context, international law is not a law of subordination but of coordination. 3. The Eclectic/Grotian School - It represents the compromise between the first two schools of thought and submits that international law is binding partly because it is good and right and partly because states have agreed to be bound by it. International Community The international community maybe described as the body of judicial entities which are governed by international law. It is often and traditionally called the family of nations. Colonies and Dependencies A colony is a dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit another country but remain subject to the mother state. A dependency is a territory distinct from country in which the supreme sovereign power resides, but belongs rightfully to it and subject to the laws and regulations which the sovereign may prescribe. Bellingerent Community It may be described as a group of rebels under as organized civil government who has taken up arms against the legitimate government. When recognized, it is considered separate state for purposes of the conflict and is entitled to all the rights and subjected to all the obligations of a full-fledged belligerent under the laws of war. It may exercise the rights of visit and search, siege contraband and establish blockades. Any injury it may cause third states or their nationals is imputable to it and not to the legitimate governmental which it is resisting. International Administrative Bodies They may be considered as a subject of international law when they are autonomous, i.e. they are not subject to the control of any single state and their

1

purposes are mainly non-political. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -----* Associate Dean, San Sebastian College of Law, Author – Labor Laws and Social Legislation: A Barrister’s Companion, Bar Reviewer in Political Law and Labor Laws, Recoletos Law Center, Jurists Bar Review Center, Legal Advantage Bar Review Center, Cosmopolitan Review Center, University of Nueva Caceres, University of Pangasinan, MCLE Lecturer in Political and Public International Law and Labor Laws and Social Legislations, Reviewer, Licensure Examination for Teachers, Manila Review Institute. Partner – Lameyra Law Office.

United Nations It is an international organization vested at the San Francisco Conference which was held in the United Sates from April 25 to June 26, 1945. The U.N. succeeded the League of Nations and is governed by a charter which came into force on October 24, 1945. Composed originally of only 51 members. THE U.N. CHARTER a. Purpose The principal objectives of the U.N. are the prevention of war, the maintenance of international peace and security, the development of friendly relations among the members of the international community, the attainment of international cooperation and harmony in the actions of nations. b. Amendment i. By a vote of 2/3 of the members of the General Assembly and ratified in accordance with their respective constitutional processes by 2/3 of the members of the U.N., including all the permanent members of the Security Council. ii. A general conference, called by a majority vote of the General Assembly and any 9 members of the Security Council, may propose amendments by a 2/3 vote of the conference and shall take effect when ratified by 2/3 of the members of the U.N., including the permanent members of the Security Council. c. Membership i. Classes A. Original B. Elective ii. Qualifications A. Must be a state; B. Peace loving; C. Accept the obligations under the charter; D. Is able and willing to carry out these obligations. iii. Admission Decision of 2/3 of those present and voting in the General Assembly upon recommendation of at least 9 members of the Security Council. iv. Suspension The same vote required as in admission. To lift the suspension a qualified majority vote of the Security Council is needed. The suspended member is prohibited from: A. Participating in the meeting of the General Assembly B. Be elected to or continue to serve in the Security Council, the Economic and Social Council, the Trusteeship Council. 2

-- But nationals may continue serving in the Secretariat and the International Court of Justice and still subject to discharge it's obligations under the Charter. v. Expulsion 2/3 vote of those present and voting in the General Assembly, upon recommendation of a majority of the Security Council, on ground of persistently violating the principles contained in the Charter. PRINCIPAL ORGANS 1. UN General Assembly It is the central organ of the United Nations. All members are represented in it and it exercises powers and functions with respect to the other organs. It is the principal deliberative body of the organization and is vested with jurisdiction over matters concerning the internal machinery and operations of the United Nations. 2. UN Security Council It is an organ of the United Nations primarily responsible for the maintenance of international peace and security. Composition: 15 members, 5 of which are permanent. The so- called big five and the other ten members are elected for 2-year terms by the General Assembly, 5 from the African and Asian states, one from the eastern European states, 2 from Latin American states and 2 from western European and other states. Their term is so staggered as to provide for the retirement of one-half of them every year. These members are not eligible for immediate reelection. 3. UN Economic and Security Council Recognizing that the promotion of social progress and better standards of life in larger freedom is indispensable to world harmony and order, the United Nations Charter has created an organ charged with the particular duty of pursuing this objective. Composition: 54 members elected by the General Assembly for a staggered term of 3 years with right to run for re-election. 4. UN Trusteeship Council It is the principal organ of the United Nations which is directly charged with the administration of the international trusteeship system. Composition: A. Members of the United Nations administering trust territories B. Members of the big five not administering trust territories C. Many members of the United Nations elected for 3 year terms by the General Assembly 5. International Court of Justice It is a judicial organ of the United Nations.

3

Composition: 15 members who must be of high moral character and possess the qualifications required in their respective countries for appointment to the highest judicial office or are jurisconsults of recognized competence in international law. 6. UN Secretariat The chief administrative organ of the United Nation is the Secretariat, which is headed by a Secretary-General. The SecretaryGeneral is chosen by the General Assembly upon recommendation of the Security Council. His term is fixed at 5 years by resolution of the General Assembly and he may be re-elected. Creation of 1. 2. 3. 4. 5. 6.

States By Revolution; By Unification; By Succession; By Assertion of Independence; By Agreement; By Attainment of Civilization.

Fundamental Rights of a State 1. The right of existence and self-defense; 2. The right of independence; 3. The right of equality; 4. The right of property and jurisdiction; 5. The right of legation or diplomatic intercourse. Recognition It is an act by which a state acknowledges the existence of another state, a government or belligerent community and indicates its willingness to deal with the entity as such under the rules of international law. Theories on Recognition 1. Constitutive (Minority View) - Recognition is the act which constitutes the entity into an international person. Under this view, recognition is compulsory and legal. It may be compelled once the elements of a state are established. 2. Declarative (Majority View) - Recognition merely affirms an existing fact, like the possession by the state of the essential elements. It is discretionary and political. Requirements for Recognition of Government: 1. The government is stable and effective with no substantial resistance to its authority. 2. The government must show willingness and ability to discharge its international obligations. 3. The government must enjoy popular consent or approval of the people. Kinds of Recognition: 1. Express- may be verbal or in writing. It may be made through a formal proclamation, a stipulation in a treaty, a letter or telegram, on the occasion of an official call, etc.. 2. Implied- it is affected when the recognizing and recognized states enter into a

4

treaty regulating their relations in general or when they exchange diplomatic representatives. Objects of Recognition: Recognition is extended to: 1. a state; 2. a Government, whether as de facto or de jure; 3. a belligerent community. Recognition to a De Facto Government: - Extended by the recognizing state which believes that some of the requirements for recognition are absent. The recognition is generally provisional and limited to certain judicial relations. It does not bring about full diplomatic intercourse and does not give title to assets of the state held or situated abroad. Recognition to a De Jure government: - Extended to a government fulfilling the requirements for recognition. When there is no specific indication, recognition is generally considered as de jure. The recognition is relatively permanent, brings about full diplomatic intercourse and observance of diplomatic immunities and confers title to assets abroad. Kinds of De facto government: 1. That which is established by the inhabitants who rise in revolt and depose the legitimate regime. 2. That which is established by the invading forces of one belligerent in the territory of the other belligerent, the government of which is also displaced. 3. That which is established by the inhabitants of a state who secede therefrom without overthrowing its government.

Wilson - Tobar Doctrine - Precludes recognition of any government established by revolutionary means until constitutional reorganization by free election of representatives. Stimson Doctrine - No recognition of a government established through external aggression. Estrada Doctrine - Since recognition has been construed as approval of a government established through a political upheaval, a state may not issue a declaration giving recognition to such government, but merely accept whatever government is in effective control without raising the issue of recognition. Dealing or not dealing with the government is not a judgment on the legitimacy of the said government. The Drago Doctrine - The Drago doctrine embodied in the Hague Convention of 1907, which provided that the contracting powers agree not to have recourse to armed

5

force for the recovery of contract debts claimed from the government of one country by the government of another country as being due its nationals. Components of Territory: 1. Terrestrial Domain – it is the landmass on which the people live. It may be integrated, as in the case of Iran, or dismembered, as in the case of United States, or may be partly bounded by water, like Burma, or completely surrounded, like Iceland, or may consist of several islands, like the Philippine Archipelago. 2. The Maritime and Fluvial Domain – it consists of the bodies of water within the land mass and waters adjacent to the coasts of the state to a specified limit. It includes land-locked lakes, rivers, man-made canals, the waters in certain gulfs, bays and straits and the territorial sea. 3. The Aerial Domain – it is the airspace above the territorial domain and the maritime and fluvial domain of the state, to the limits of the atmosphere. This does not include outer space. Modes of Acquisition of Territory: 1. Discovery and Occupation – it is an original mode of acquisition by which territory not belonging to any state or terra nullius, is placed under the sovereignty of the discovering state. The territory need not be uninhabited provided it can be established that the natives are not sufficiently civilized and can be considered as possessing not rights of sovereignty but only rights of habitation. *Requisites of discovery and occupation: 1. Possession – it must be claimed in behalf of the state represented by the discoverer and may be effected through a formal proclamation and the symbolic act of raising the national flag in the territory. 2. Administration Both requisites must concur. Absence of one will not give rise to acquisition of territory. 6. Archipelagic Waters * THE ARCHIPELAGIC DOCTRINE – The waters around, between and connecting the islands of the archipelago, regardless of their breadth or dimension, are to be treated as internal waters. (Article 1, Section 1 of the 1987 Constitution)

*Archipelago – A group of islands, including parts of islands, inter-connecting waters and other natural features which are closed interrelated in such islands, waters and other natural features which from an intrinsic geographical, economic and political entity or which historically has been regarded as such. *Straight Baseline Method – In defining the internal waters of the archipelago, straight baselines should be drawn to connect appropriate points of the outermost islands without departing radically from the general direction of the coast so that the entire archipelago shall be encompassed as one whole territory. The waters inside these baselines shall be considered internal and thus not subject to entry by foreign vessels without the consent of the local state.

6

7. Territorial Sea – The belt of the sea located between the coast and internal waters of the coastal state on the one hand, and the high seas on the other, extending up to 12 nautical miles from the low-water mark or in the case of archipelagic states, from the baselines. General Rule: Ships of all states enjoy the right of innocent passage through the territorial sea. The passage must be continuous and expeditious except in cases of force majure. Submarines and other underwater craft are required to navigate on the surface and to show their flag. 8. Contiguous Zone – Extends up to 12 nautical miles from the territorial sea. Although technically, not part of the territory of the state, the coastal state may exercise limited jurisdiction over the contiguous zone, to prevent infringement of customs, fiscal, immigration or sanitary laws. 9. Exclusive Economic Zone – Extends up to 200 nautical miles from the low-water mark or the baselines. Technically, the area beyond the territorial sea is not part of the territory of the state, but the coastal state may exercise sovereign rights over economic resources of the sea, seabed, subsoil although other states shall have freedom of navigation and over flight, to lay submarine rabbles and pipelines and other lawful uses. States with overlapping exclusive economic zones are enjoined to enter into the appropriate treaty for the joint exploitation and utilization of the resources in the area. 10. Continental Shelf – It comprises the seabed and the subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 miles from the baselines from which the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. The coastal state also enjoys the right of exploitation of oil deposits and other resources in the continental shelf. In case the continental shelf extends to the shores of another state, or is shared with another state, the boundary shall be determined in accordance with equitable principles. 11. High Seas – The high seas are treated as res communes or res nullius, or thus, are not territory of any particular state. *Freedom of Navigation – refers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state. *Aerial Domain  International Convention on Civil Aviation, December 7, 1944, states that “the contracting parties recognize that every state has complete and exclusive sovereignty over the air space above its territory” but this shall not include outer space, which is considered as res communes. Other states have no right of innocent passage over the air territory of another state.  Outer space – they are res communes and belong to all mankind. They are outside the commerce of man and cannot be the object of any mode of acquisition. Innocent Passage – means navigation through the territorial sea of a state for the purpose of traversing that sea without entering internal water, 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. Jurisdiction Over Land Territory

7

The state exercises jurisdiction over everything found within its territorial domain except from the exemption stated above. *Jurisdiction Over Maritime Territory Over foreign public vessels, the local state exercises either civil or criminal jurisdiction, provided they are not engaged in private business. Over foreign private or merchant vessels, the local state exercises full jurisdiction. However, criminal jurisdiction is determined according to the: a. English Rule – the coastal state shall have jurisdiction over all offenses committed on board the vessel except those which do not compromise the peace of port. b. French Rule – flag state shall have jurisdiction over all offenses committed on board the vessel except those which compromise the peace of the port. *Jurisdiction Over Contiguous Zone Under the UN Convention on the laws of the sea, the coastal state may exercise the control necessary to prevent infringement of its customs, fiscal, immigration and sanitary regulations and punish the said infringement. Jurisdiction Over the Continental Shelf The coastal state enjoys the right of exploitation of oil deposits and other resources in the continental shelf. In cases the continental shelf extends to the shores of another state, or is shared with another state, the boundary shall be determined in accordance with equitable principles. Jurisdiction Over Patrimonial Sea or Exclusive Economic Zone Under the UN Convention on the law of the sea, the coastal state has sovereign rights over the exclusive economic zone for purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the seabed, the subsoil and the superjacent waters, as well as the production of energy from the water, currents and winds. Other states shall have the freedom of navigation and over-flight, to lay submarine cables and pipes and other lawful uses. Jurisdiction Over Open Seas The open seas or the high seas are res communes and available to the use of all states for the purposes of navigation, flying over them, laying submarine cables or fishing. A state may exercise jurisdiction on the open seas in the following instances: 1. Over its vessels – the flag state has jurisdiction over its public vessels at times, whether they are in its own territory, in the territory of other state or on the open seas. Merchant vessels, on the other hand, are under its jurisdiction when they are within its territory, when jurisdiction is waived or cannot be exercised by the territorial sovereign or when such vessels are on the open seas. 2. Over pirates – pirates are enemies of all mankind and they may be captured on the open seas by the vessels of any state, to whose territory they may be brought for trial and punishment. Piracy is committed for private ends, not political motives. Insurgents may, therefore, not to be treated as pirates. 3. In the exercise of the right of visit and search – under the laws of neutrality, the public vessels or aircraft of a belligerent state may visit and search any neutral merchant vessel on the open seas and capture it if found to be engaged in activities favorable to the other belligerent.

8

4. Under the doctrine of hot pursuit – if an offense is committed by a foreign merchant vessel within the territorial waters of the coastal state, its own vessels may pursue the offending vessel into the open seas and upon capture bring it back to its territory for punishment. To be lawful, the pursuit must be begun before the offending vessel has left the territorial waters or the contiguous zone of the coastal state with respect to violation of rights enforceable thereon. Moreover, the pursuit must be continuous or unabated; otherwise, it will be deemed to have cooled and can no longer be resumed. Jurisdiction Over Aerial Domain The consensus is that the subjacent state has jurisdiction over the airspace above it to the upward limits of the atmosphere. Hence, no foreign aircraft, civil or military, may pass through the aerial domain of a state without its consent. The Right of Legation It is the right of a state to maintain diplomatic relations with other states. Also known as the right of diplomatic intercourse, this refers to the right of the state to send and receive diplomatic missions, which enables states to carry on friendly intercourse. It is not a natural or inherent right, but exists only by common consent. No legal liability is incurred by the state for refusing to send or receive diplomatic representatives. Agents of Diplomatic Intercourse 1. Head of State - He is the embodiment of, and represents, the sovereignty of the state, and enjoys the right to special protection for his physical safety and the preservation if his honor and reputation. His quarters, archives, property and means of transportation are inviolate under the principle of exterritoriality. He is immune from criminal and civil jurisdiction, except when he himself is the plaintiff, and is not subject to tax or exchange or currency restrictions. 2. The Foreign Secretary or Minister – Under the municipal law of most states, the foreign secretary is the immediate representative of the head of state and directly under his control. He can make binding declarations on behalf of his state on any matter falling within his authority. 3. The Members of the Diplomatic Service 4. Sometimes state may appoint special diplomatic agents changed with either political or ceremonial duties, such as the negotiation of a treaty or attendance at a state function like a coronation or a funeral. Treaty – it is 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 regarding their mutual relations under the law of nations. *Distinction Between Treaty and Executive Agreement An executive agreement is not a treaty insofar its ratification may not be required under our Constitution. However, the distinction is purely municipal and has no international significance. From the standpoint of international law, “treaties and executive agreements are alike that both constitute equally binding obligations upon the nation. Functions of Treaties 1. To enable the parties to settle finally actual and potential conflicts. 2. To make it possible for the parties to modify rules of international customary law 9

by means of optional principles or standards. 3. To pave the way for the transformation of unorganized international society into one which may be organized ion any chosen level of social integration. 4. To provide the humus for the growth of international customary law. Essential Requisites of Valid Treaty 1. Entered into by parties having the treaty-making capacity. 2. Through their authorized organs or representatives 3. Without the attendance of duress, fraud, mistake or other vice of consent. 4. On a lawful subject 5. In accordance with their respective constitutional processes. Fundamental principles concerning treaties 1. Pacta sunt servanda – it means that treaties must be observed in good faith despite hardship on the contracting state, such as conflicts between the treaty and its constitution or prejudice to the national interest as a result of the operation of the treaty. As a general rule, a party must comply with the provisions of a treaty and cannot ignore or modify it without the consent of the other signatory. Willful disregard or violation of treaties without just cause is frowned upon by the society of nations. 2. Rebus sic stantibus – according to Jessup, “ would justify non-performance of a treaty obligation if the conditions in relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable”. *Limitations on the Doctrine of rebus sic stantibus: 1. It applies only to treaties of indefinite duration. 2. The vital change claimed as justification for the discontinuance of the treaty must have been unforeseen or unforeseeable and must not have been caused by the party invoking the doctrine. 3. The doctrine must be invoked within a reasonable time from the occurrence of the change asserted. 4. The doctrine cannot operate retroactively upon the provisions of the treaty already executed prior to the change in circumstance. Extradition - The surrender of a person by one state to another state where he is wanted for prosecution or if already convicted, for punishment. Basis of Extradition: 1. A treaty 2. In absence of a treaty, the local state may grant asylum to the fugitive 3. If surrender is made, the same is merely a gesture of comity. Distinction between Extradition and Deportation Extradition is the surrender of a fugitive by one state to another where he is wanted for prosecution or if already convicted, for punishment. The surrender is made at the request of the latter state on the basis of an extradition treaty while deportation is the expulsion of an alien who is considered undesirable by the local state, usually but not necessarily to his own state. Deportation is the unilateral act of the local state and is made in its own interests. Fundamental Principle of Extradition 1. Extradition is based on consent of the state of asylum as expressed in a treaty or

10

2.

3. 4.

5. 6.

manifested as an act of goodwill. Under the 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 offices in the extradition treaty. Any person may be extradited, whether he is a national if the requesting state, of the state of refuge or of another state. Political and religious offenders are generally not subject to extradition. a. In order to constitute an offense of a “political character” there must be two or more parties in the state, each seeking to impose the government of their own choice on the other. b. Under the Attentat Clause, the murder of the head of state or any member of his family is not to be regarded as a political offense. Neither is genocide. In absence of special agreement, the offense must have been committed within the territory or against the interests of the demanding state. The act for which the extradition is sought must be punishable in both the requesting and requested state under what is known as the rule of double criminality.

Procedure of Extradition 1. Request, accompanied by the necessary papers relative to the identity of the wanted person and the crime alleged to have committed or which he has already been convicted, made through diplomatic channels to the state of refuge. 2. Upon receipt of the request, state of refuge will conduct a judicial investigation to ascertain if the crime is covered by the extradition treaty and if there is a prima facie case against the fugitive delivered to the state of refuge. - In Secretary of Justice vs. Lantion, the Supreme Court ruled that extradition proceedings are sui generic and are not criminal proceedings which automatically call into operation all the rights of an accused as guaranteed in the Bills of Rights. Extradition proceedings do not involve the question of guilt or innocence of the person to be extradited. Settlement of International Disputes International Disputes It is an 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 dispute. Modes of Settling Disputes 1. Amicable method 2. Hostile method Delight yourself in the eyes of the Lord and He will give you the desires of your heart Psalm 37:4

[email protected]

Atty. Duka’s Published Works 1. Constitutional Law: A Barrister’s Companion, Rex Bookstore, 2010

11

2. Labor Laws and Social Legislations: A Barrister’s Companion, Rex Bookstore, 2008 3. Rizal, His Legacy to Philippine Society, Anvil Publishing, 2010 4. The Struggle for Freedom: A Textbook on Philippine History, Rex Bookstore, 2008 5. The Law and the Teaching Profession in the Philippines, C and E Publishing, 2008 6. Introduction to Asia: History, Culture and Civilization, Rex Bookstore, 2005 7. Reviewer for the Civil Service Examination, Manila Review Institute, Inc. 2001 8. World Geography, Rex Bookstore, Manila, 2001. 9. Philosophy of Education, Rex Bookstore, Manila, 1999 10.Reviewer for the Licensure Examination for Teachers, Manila Review Institute Inc. 1998. 11.Historical, Philosophical and Legal Foundations of Education, Phoenix Publishing House, 1997.

12