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5ature

'ublic 'ublic is international in nature. It is a law of a sovereign over those sub6ected to his sway )7penheim & (auterpacht% 0".,

.. $ettlemen t of 9ispute

.. $ettlemen t of 9ispute

0. $ource

;. $ub6ect

9isputes are resolved through international modes of settlement & like negotiations and arbitration% reprisals and even war 9isputes are resolved through international modes of settlement & like negotiations and arbitration% reprisals and even war 9erived from such sources as international customs% international conventions and the general principles of law. 1pplies to relations states inter se and other international persons. Infractions are usually collective in the sense that it attaches directly to the state and not to its nationals.

'rivate 1s a rule% 'rivate is national or municipal in character. 28cept when embodied in a treaty or convention% becomes international in character. It is a law% not above% but between% sovereign states and is% therefore% a weaker law. )7penheim & (auterpacht% 0"., :ecourse is with municipal tribunals through local administrative and 6udicial processes.

PUBLIC INTERNATIONAL LAW Public International Law It is the body of rules and principles that are recognized as legally binding and which govern the relations of states and other entities invested with international legal personality. Formerly known as law of nations coined by Jeremy Bentham in !"#. Public International Law Distinguished ro! Pri"ate International Law#Con$lict o$ Laws It is that part of the law of each $tate which determines whether% in dealing with a factual situation% an event or transaction between private individuals or entities involving a foreign element% the law of some other $tate will be recognized. BA%I% O PIL & ' %C(OOL% O T(OU)(T *Wh+ are rules o$ international law binding,. Naturalist & 'I( is a branch of the great law of nature & the sum of those principles which ought to control human conduct% being founded on the very nature of man as a rational and social being. )*ugo +rotius, -'I( is binding upon $tates .. Positi"ist & Basis is to be found in the consent and conduct of $tates. Tacit consent in the case of customary international law. Express in conventional law. Presumed in the general law of nations. )/ornelius van Bynkershoek, 0. )roatians or Eclectics & 1ccepts the doctrine of natural law% but maintained that $tates were accountable only to their own conscience for the observance of the duties imposed by natural law% unless they had agreed to be bound to treat those duties as part of positive law. )2merich von 3attel, -4iddle ground

:ecourse is with municipal tribunals through local administrative and 6udicial processes.

/onsists mainly from the lawmaking authority of each state.

3 GRAND DIVISIONS 1. Laws of Peace normal relations between states in the absence of war. 2. Laws of War relations between hostile or belligerent states during wartime.

:egulates the relations of individuals whether of the same nationality or not. +enerally% entails only individual responsibility.

<. :esponsibi lity for violation

3. Laws of Neutrality relations between a non-participant state and a participant state during wartime. This also refers to the relations among non-participating states.

RELATIONS INTERNATIONAL MUNICIPAL LAW

BETWEEN LAW AND

From the Viewpoint o Do!trine 1. Dualists International Law and Municipal Law are two completel separate realms. See distinctions Nos. 1,3 &4. 2. Monists Denies that !IL and Municipal Law are essential different. In both laws" it is the indi#idual persons who in the ultimate anal sis are regulated b the law. That both laws are far from being essentiall different and must be regarded as parts of the same $uristic conception. %or them there is oneness or unit of all laws. !IL is superior to municipal law& international law" being the one which determines the $urisdictional limits of the personal and territorial competence of 'tates. From the Viewpoint o Pr"!ti!e 1. International Tribunals !IL superior to Municipal Law (rt. 2)" *ienna +on#ention in the law of Treaties ( state ,ma not in#o-e the pro#isions of its internal law as $ustification for its failure to perform a treat . 'tate legall bound to obser#e its treat obligations" once signed and ratified 2. Municipal 'phere depends on what doctrine is followed/ Do!trine o In!orpor"tion # 0ules of international law form part of the

law of the land and no further legislati#e action is needed to ma-e such rules applicable in the domestic sphere. 1'ec. of 2ustice #. Lantion 304 135678" 2an. 19" 2:::; This is followed in the !hilippines/ (rt. II" 'ec. 2 ,The !hilippines<adopts the generall accepted principles of international law as part of the law of the land<. =owe#er" no primac is implied. Do!trine o Tr"n$ orm"tion % Legislati#e action is re>uired to ma-e the treat enforceable in the municipal sphere. 3enerall accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted b the lawma-ing bod and so transformed into municipal law. This doctrine runs counter (rt. II" 'ec. 2" of the 159) +onstitution. P"!t" S&nt Ser'"n(" International agreements must be performed in 3ood %aith. ( treat engagement is not a mere moral obligation but creates a legall binding obligation on the 1arties. ( state which has contracted a #alid international obligation is bound to ma-e in its legislation such modifications as ma be necessar to ensure the fulfillment of the obligations underta-en.
%OURCE%

A. Primary I. Treaties or International +on#entions II. International +ustom III. 3eneral !rinciples of Law 0ecogni?ed b +i#ili?ed 4ations B. Secondary I*. 2udicial Decisions *. Teachings of publicists

authoritati#e

@ABA@ A) Prim"r* I) Tre"tie$ or Intern"tion"+ Con'ention$ % , -INDS. 1. +ontract Treaties 1Traite-Contrat; Cilateral arrangements concerning matters of particular or special interest to the contracting parties 'ource of ,!articular International Law. CDT/ Ma become primar sources of international law when different contract treaties are of the same nature" containing practicall uniform pro#isions" and are concluded b a substantial number of 'tates EF./ EGtradition Treaties 2. Law-Ma-ing Treat 1Traite-Loi; +oncluded b a large number of 'tates for purposes of/ 1. Declaring" confirming" or defining their understanding of what the law is on a particular sub$ectH 2. 'tipulating or la ing down new general rules for future international conductH 3. +reating new international institutions 'ource of ,3eneral International Law. II) Intern"tion"+ C&$tom Matters of international concern are not usuall co#ered b international agreements and man 'tates are not parties to most treatiesH international custom remains a significant source of international law" supplementing treat rules.

C&$tom is the practice that has grown up between 'tates and has come to be accepted as binding b the mere fact of persistent usage o#er a long period of time It eGists when a clear and continuous habit of doing certain things de#elops under the +I4*I+TII4 that it is obligator and right. This con#iction is called ,Opinio /&ri$. Jhen thereKs no con#iction that it is obligator and right" thereKs onl a U$"0e. Dsage is also a usual course of conduct" a long-established wa of doing things b 'tates. To ele#ate a mere usage into one of a customar rule of international law" there must be a degree of constant and uniform repetition o#er a period of time coupled with opinio juris. III) Gener"+ Prin!ip+e$ o L"w Re!o0ni1e( 2* Ci'i+i1e( N"tion$ 'alonga opines that resort is ta-en from general principles of law whene#er no custom or treat pro#ision is applicable. The idea of ,ci#ili?ed nations. was intended to restrict the scope of the pro#ision to European 'tates" howe#er" at present the term no longer ha#e such connotation" thus the term should include all nations. EGamples of general principles are/ estoppel, pacta sunt servanda, consent, res judicata and prescription; including the principles of $ustice" e>uit and peace. B) Se!on("r* IV) /&(i!i"+ (e!i$ion$ The doctrine of stare decisis is not applicable in international law per (rt.85

of the I+2 which states that ,The decision of the +ourt has no binding force eGcept between the parties and in respect to that particular case.. This means that these decisions are not a direct source" but the do eGercise considerable influence as an impartial and well-considered statement of the law b $urists made in the light of actual problems which arise before them" and thus" accorded with great respect. This includes decisions of national courts" although the are not a source of law" the cumulati#e effect of uniform decisions of the courts of the most important 'tates is to afford e#idence of international custom. V) Te"!hin0$ o "&thorit"ti'e p&2+i!i$t$ % in!+&(in0 +e"rne( writer$ 'uch wor-s are resorted to b $udicial tribunals not for the speculation of their authors concerning what the law ought to be" but for trustworth e#idence of what the law reall is. 1Mr. 2ustice 3ra in !a>uete =abana case" 1)8 D.'. 7)).; S&23e!t De ine( ( 'ub$ect is an entity that has an international personality. (n entit has an international personalit if it can directl enforce its rights and duties under international law. Jhere there is no direct enforcement of accountabilit and an intermediate agenc is needed" the entity is erely an o!ject not a su!ject o" international la#. 4. When (oe$ "n entit* "!5&ire intern"tion"+ per$on"+it*6 A. Jhen it has right and duties under international lawH can directl enforce its rightsH and ma be held directl accountable for its obligations. O23e!t$ De ine( (n Ib$ect is a person or thing in respect of which rights are held and obligations assumed b the 'ub$ect. Thus" it is not directl go#erned b the rules of

international law. There is no direct enforcement and accountabilit . (n intermediate agenc &the 'ub$ect&is re>uired for the en$o ment of its rights and for the discharge of its obligations. SUB/ECTS OF INTERNATIONAL LAW , Con!ept$. 1. Tr"(ition"+ !on!ept Inl 'tates are considered sub$ects of international law. 2. Contempor"r* !on!ept Indi#iduals and international organi?ations are also sub$ects because the ha#e rights and duties under international law. LLiang #s. !eople" 304 128978 127 March 2::1;M The STATE "$ $&23e!t o Intern"tion"+ L"w 'tate is a communit of persons more or less numerous" permanentl occup ing a definite portion of territor " independent of eGternal control" and possessing an organi?ed go#ernment to which the great bod of inhabitants render habitual obedience. 4. Wh"t i$ the $t"t&$ o "n in(i'i(&"+ &n(er p&2+i! intern"tion"+ +"w6 789:8 B"r; A. (ccording to =an-s Nelson" ,while as a general rule" international law has as its sub$ects states and obliges onl immediatel " it eGceptionall applies to indi#iduals because it is to man that the norms of international law appl " it is to man whom the restrain" it is to man who" international law thrusts the responsibilities of law and order.. 4. I$ the V"ti!"n Cit* " $t"te6
A. =2$>

The !hilippines has accorded the =ol 'ee the status of a foreign so#ereign. The =ol 'ee" through its (mbassador" the !apal 4uncio" has had diplomatic representations with the !hilippine go#ernment since 158). This appears to be the uni#ersal practice in international relations ELEMENTS OF A STATE. (. Peop+e the inhabitants of the 'tate must be numerous enough to be self-sufficing and to defend themsel#es and small enough to be easil administered and sustained. the aggregate of indi#iduals of both seGes who li#e together as a communit despite racial or cultural differences groups of people which cannot comprise a 'tate/ 1. (ma?ons not of both seGesH cannot perpetuate themsel#es 2. !irates considered as outside the pale of law" treated as an enem of all man-indH ,hostis hu ani $eneris.
C.

4omadic tribe not a 'tate


+.

Go'ernment the agenc or instrumentalit through which the will of the 'tate is formulated" eGpressed and reali?ed , -INDS. 1. De 2ure Ine with rightful title but not power or control" because/ !ower was withdrawnH =as not et entered into the eGercise of power 2. De %acto ( go#ernment of fact (ctuall eGercises power or control" but has 4I legal title 3 -in($. aM %y revolution that which is established b the inhabitants who rise in re#olt against and depose the legitimate regimeH EF. the +ommonwealth established b Ili#er +romwell which supplanted the monarch under +harles I of England bM %y $overn ent o" para ount "orce that which is established in the course of war b the in#ading forces of one belligerent in the territor of the other belligerent" the go#ernment of which is also displaced EF. the 2apanese occupation go#ernment in the !hilippines which replaced the

Territor* % the fiGed portion of the surface of the earth inhabited b the people of the 'tate the si?e is irrele#ant 'an Marino #. +hina CDT" practicall " must not be too big as to be difficult to administer and defendH but must not be too small as to unable to pro#ide for peopleKs needs 4. Wh* import"nt to (etermine6 A. Determines the area o#er which the 'tate eGercises $urisdiction

+ommonwealth go#ernment during JJII LbM cM %y secession that which is established b the inhabitants of a state who cedes therefrom without o#erthrowing its go#ernment EF. the confederate go#ernment during the (merican +i#il Jar which" howe#er" did not see- to depose the union go#ernment 4. I$ the Cor* A5&ino Go'ernment " (e "!to or (e 3&re 0o'ernment6 A. De 2ureO Jhile initiall the (>uino 3o#ernment was a de facto go#ernment because it was established thru eGtraconstitutional measures" it ne#ertheless assumed a de $ure status when it subse>uentl recogni?ed b the international communit as the legitimate go#ernment of the 0epublic of the !hilippines. Moreo#er" a new +onstitution was drafted and o#erwhelmingl ratified b the %ilipino people and national elections were held for that purpose.1Law ers League for a Cetter !hilippines #. (>uino" 3.0. 4o. )3)69 L1597M; The +or go#ernment wonO (ll de facto go#ernments lost in the endO , F&n!tion$. 1. Con$tit&ent constitutes the #er bonds of societ +IM!DL'I0P. EGamples/ LaM Neeping of order and pro#iding for the protection of LcM

LdM LeM LfM LgM LhM

persons and propert from #iolence and robberH %iGing of legal relations between spouses and between parents and childrenH 0egulation of the holding" transmission" and interchange of propert " and the determination of liabilities for debt and crimeH Determination of contractual relations between indi#idualsH Definition and punishment of crimes (dministration of $ustice in ci#il casesH (dministration of political duties" pri#ileges" and relations of citi?ensH Dealings of the 'tates with foreign powers

2. Mini$tr"nt underta-en to ad#ance the general interests of societ merel I!TII4(L. EGamples/ LaM !ublic wor-sH LbM !ublic charit H LcM 0egulation of trade and industr 4. Wh"t i$ the m"n("te o the Phi+ippine Go'ernment6 A. (rt. II" 'ec. 6 ,The prime dut of the 3o#ernment is to ser#e and protect the people<. Thus" whate#er good is done b go#ernment attributed to the 'tateH whate#er harm is done b the go#ernment attributed to the go#ernment alone" not the 'tate =arm $ustifies the replacement of the go#ernment b re#olution ,Dire!t St"te A!tion. EFFECTS OF A C<ANGE IN

GOVERNMENT. It is well settled that as far as the rights of the predecessor go#ernment are concerned" the are inherited in toto b the successor go#ernment. 0egarding obligations" distinction is made according to the manner of the establishment of the new go#ernment. The rule is that where the new go#ernment was organi?ed b #irtue of a constitutional reform dul ratified in a plebiscite" the obligations of the replaced go#ernment are also completel assumed b the former. +on#ersel " where the new go#ernment was established through #iolence" as b a re#olution" it ma lawfull re$ect the purel personal or political obligations of the predecessor go#ernment but not those contracted b it in the ordinar course of official business. S&mm"r*. (. +hange of 3o#ernment b +onstitutional 0eform The new go#ernment inherits all the rights and obligations of the former go#ernment C. +hange b EGtra-+onstitutional Means 0ights all are inheritedH Ibligations distinguish/ +ontracted in the regular course of business InheritedH EF./ !a ment of postal mone orders bought b an indi#idual !urel !ersonalQ!olitical Ibligations 4ot boundO Ma re$ectO EF./ !a ment for arms bought b old go#ernment to fight the rebels D. So'erei0nt* the supreme and uncontrollable

power inherent in a 'tate b which that 'tate is go#erned. Ma be legal or political -INDS. 1. Legal and !olitical 'o#ereignt Legal the authorit which has the power to issue final commands +ongress is legal so#ereign !olitical the power behind the legal so#ereign" or the sum of the influences that operate upon it the different sectors molding public opinion 2. Internal and EGternal 'o#ereignt Internal the power of a 'tate to control its internal affairs EGternal the power of the 'tate to direct its relations with other 'tates also called ,Independenc.e Ch"r"!teri$ti!$ o So'erei0nt* 1. permanent 2. eGclusi#it 3. comprehensi#eness 6. absoluteness 8. indi#idualit 7. inalienabilit ). imprescriptibilit 4. Wh"t h"ppen$ to $o'erei0nt* i the "!t$ o "&thorit* !"nnot 2e e=er!i$e( 2* the +e0itim"te "&thorit*6 A. 'o#ereignt not suspended. EF./ 2apanese Iccupation during JJII

'o#ereignt remained with the D' 2apanese merel too- o#er the eGercise of acts of so#ereignt 4. In thi$ !"$e> wh"t "re the e e!t$ on the +"w$6 A. !olitical Laws 30/ 'uspendedO 'ub$ect to re#i#al under jus postli iniu i.e." once the legitimate authorit returns" the political laws are re#i#ed &us 'ostli iniu roman law concept. If a 0oman +iti?en is captured" he loses his rights as a 0oman citi?en" but once he returns to 0ome" he reco#ers all those rights again F!4/ LaM Laws of Treason 4ot suspendedO !reser#ation of allegiance to so#ereign does not demand positi#e action" but onl a passi#e attitude or forbearance from adhering to the enem b gi#ing the latter aid and comfort LLaurel #. MisaM LbM +ombatants not co#ered b said rule Thus" (%! members still co#ered b 4ational Defense (ct" (rticles of Jar" etc. L0uff #. +hief of 'taffM 0ule applies onl to ci#ilians +i#il Laws/ 30/ 0emains in force F!4/ (mended or superseded b affirmati#e act of belligerent occupant 4. Wh"t h"ppen$ to 3&(i!i"+ (e!i$ion$ m"(e (&rin0 the o!!&p"tion6 A. Those of a !olitical +ompleGion automaticall annulled upon restoration of legitimate authorit

con#iction for treason against the belligerent 4on-political remains #alid EF./ +on#iction for defamation EFFECTS OF A C<ANGE IN SOVEREIGNT? 1. !olitical Laws are deemed (C0I3(TED. 4. Wh*6 A. The go#ern relations between the 'tate and the people. 2. 4on-!olitical Laws generall continue in operation. 4. Wh*6 A. 0egulates onl pri#ate relations F!4/ LaM +hanged b the new so#ereign LbM +ontrar to institutions of the new so#ereign 4. M"* "n inh"2it"nt o " !on5&ere( St"te 2e !on'i!te( o tre"$on "0"in$t the +e0itim"te $o'erei0n !ommitte( (&rin0 the e=i$ten!e o 2e++i0eren!*6 A. PE'. (lthough the penal code is nonpolitical law" it is applicable to treason committed against the national securit of the legitimate go#ernment" because the inhabitants of the occupied territor were still bound b their allegiance to the latter during the enem occupation. 'ince the preser#ation of the allegiance or the obligation of fidelit and obedience of a citi?en or sub$ect to his go#ernment or so#ereign does not demand from him a positi#e action" but onl passi#e attitude or forbearance from adhering to the enem b gi#ing the latter aid and comfort" the occupant has no power" as a corollar of the preceding consideration" to repeal or suspend the operation of the

law of treason. 4. W"$ there " !"$e o $&$pen(e( "++e0i"n!e (&rin0 the /"p"ne$e o!!&p"tion6 A/ 4one. (doption of the petitionerRs theor of suspended allegiance would lead to disastrous conse>uences for small and wea- nations or states" and would be repugnant to the laws of humanit and re>uirements of public conscience" for it would allow in#aders to legall recruit or enlist the >uisling inhabitants of the occupied territor to fight against their own go#ernment without the latter incurring the ris- of being prosecuted for treason. To allow suspension is to commit political suicide. 4. I$ $o'erei0nt* re"++* "2$o+&te6 A. In the domestic sphere PE'O In international sphere 4IO Prin!ip+e o St"te Contin&it* 'tate is not lost when one of its elements is changedH it is lost onl when at least one of its elements is destro ed. 'tate does not lose its identit but remains one and the same international person notwithstanding changes in the form of its go#ernment" territor " people" or so#ereignt . 'ee <o+* See '$) Ro$"rio 7,3: SCRA @,A; %rom the moment of its creation" the 'tate continues as a $uristic being" despite changes in its elements. EF./ L1M 0eduction of population due to natural calamit L2M +hanges in territor =owe#er" the disappearance of an of the elements causes the eGtinction of the state. RIG<TS OF T<E STATE F&n("ment"+ Ri0ht$ o St"te$ B S P E E DC 1. 0ight to So#ereignt and 2. 3. 6. 8.

IndependenceH 0ight to Propert and 2urisdictionH 0ight to EGistence and 'elf-Defense 0ight to E>ualit 0ight to Diplomatic Intercourse

RIG<T OF EDISTENCE AND SELF# DEFENSE The most elementar and important right of a 'tate (ll other rights flow from this right 0ecogni?ed in the D4 +harter" (rticle 81/ ,4othing in the present charter shall impair the inherent right of indi#idual or collecti#e self-defense if an armed attac- occurs against a Member of the D4" until the '+ has ta-en measures necessar to maintain international peace and securit . Measures ta-en b Members in the eGercise of this right of self-defense shall be immediatel reported to the '+ and shall not in an wa affect the authorit and responsibilit of the '+ under the present +harter to ta-e at an time such action as it deems necessar in order to maintain or restore international peace and securit .. (rt. II" 'ec. 2 ,The !hilippines renounces war as an instrument of national polic <. This prohibits an offensi#eQaggressi#e war Cut" it allows DE%E4'I*E J(0O Thus" when attac-ed" the !hilippines can eGercise its inherent right of eGistence and self-defense This right is a generall accepted principle of international law thus" it is part of our law of the land" under the Incorporation +lause L(rt. II" 'ec. 2" 159) +onstitutionM

4. Who !"n (e!+"re w"r6 A. 4o oneO The +onstitution has withheld this power from the go#ernment. Jhat the +onstitution allows is a declaration of a ,'tate of Jar.. Dnder (rt. *I" 'ec. 23L1M ,+ongress" b a #ote of 2Q3 of both =ouses" in $oint session assembled" #oting separatel " shall ha#e the sole power to declare the eGistence of a state of war. This means that we are alread under attac4. Wh"t "re the e e!t$ when Con0re$$ (e!+"re$ " $t"te o w"r6 A. 1. (rt. *I" 'ec. 23 ,In times of war< the +ongress ma " b law" authori?e the !resident" for a limited period and sub$ect to such restrictions as it ma prescribe" to eGercise powers necessar and proper to carr out a declared national polic . Dnless sooner withdrawn b resolution of the +ongress" such powers shall cease upon the neGt ad$ournment thereof.. 2. (rt. *II" 'ec. 19 ,The !resident shall be the +ommander-in-+hief of all armed forces<and whene#er it becomes necessar " he ma call out such armed forces to pre#ent or suppress<in#asion< In case" in#asion<when the public safet re>uires it" he ma " for a period not eGceeding 7: da s" suspend the pri#ilege of the writ of habeas corpus or place the !hilippines or an part thereof under martial law<. This is in line with the D4 +harter" which also renounces war (s charter-member of the D4" our +onstitution also renounces war as an instrument of national polic RIG<TS OF SOVEREIGNT? AND INDEPENDENCE Inter'ention It is ,the dictatorial interference b a 'tate

in the internal affairs of another 'tate" or in the relations between other 'tates" which is either forcible or bac-ed b the threat of force.. Inter'ention i$ Di erent rom EInter!e$$ionF Intercession is allowedO EF./ Diplomatic !rotest" Tender of (d#ice Gener"++* Inter'ention i$ Prohi2ite( 7Dr"0o Do!trine; !rohibits inter#ention for the collection of contractual debts" public or pri#ate %ormulated b %oreign Minister Luis Drago L(rgentinaM" in reaction to the *ene?uelan Incident P"!i i! B+o!G"(e one imposed during times of peace were the countries at war" then a bloc-ade is a legitimate measure in fact" a bloc-ade must not be #iolated b a neutral 'tate if breached" the neutral #essel is sei?ed W<EN INTERVENTION ALLOWED> E=!eption$ 1. Inter#ention as an (ct of Indi#idual and +ollecti#e 'elf-Defense 2. Inter#ention b Treat 'tipulation or b In#itation EInter'ention 2* In'it"tionF !resupposes that the in#iting 'tate is not a mere puppet of the inter#ening 'tate EF./ =ungar In 1587" =ungar was in internal turmoil" and as-ed the 'o#iet forces to inter#ene Jhile the inter#ention was upon in#itation" it was still condemned because the

=ungarian go#ernment was a mere 'o#iet puppet 3. C D4 (uthori?ation and 0esolution EF./ 1. Norean Jar In fact" it is D4 itself that inter#ened 2. 155: Ira>i (nneGation of Nuwait There was an '+ 0esolution" authori?ing the D'-led multilateral force to inter#ene 6. In =umanitarian 3rounds This has recentl e#ol#ed b international custom Thus" has become a primar source of international law EF./ 1. Inter#ention in 'omalia 2. Inter#ention in Cosnia and Noso#o 4o D4 0esolution" but 4(TI inter#ened militaril 3round/ There was ethnic cleansing b 'erbs of ethnic minorities 3. Inter#ention in East Timor !urpose/ To protect the East Timorese RECOGNITION 3 LEVELS (. 0ecognition of 'tate C. 0ecognition of 3o#ernment +. 0ecognition of Celligerenc RECOGNITION OF STATE , S!hoo+$ o Tho&0ht Constitutive School - recognition is the act which gi#es to a political entit international status as a 'tateH - it is onl through recognition that a -

'tate becomes an International !erson and a sub$ect of international law thus" recognition is a legal matter &not a matter of arbitrar will on the part of one 'tate whether to recogni?e or refuse to recogni?e another entit but that where certain conditions of fact eGist" an entit ma demand" and the 'tate is under legal dut to accord recognition

Declaratory School - recognition merel an act that declares as a fact something that has hitherto been uncertain - it simpl manifests the recogni?ing 'tateKs readiness to accept the normal conse>uences of the fact of 'tatehood - recognition is a political act" i.e." it is entirel a matter of polic and discretion to gi#e or refuse recognition" and that no entit possesses the power" as a matter of legal right" to demand recognition - there is no legal right to demand recognition - followed b most nations recognition of a 'tate has now been substituted to a large eGtent b the act of admission to the Dnited 4ations it is the ,assurance gi#en to a new 'tate that it will be permitted to hold its place and ran- in the character of an independent political organism in the societ of nations. 4. E=p+"in> &$in0 e="mp+e> the De!+"r"tor* Theor* o Re!o0nition Prin!ip+e) 78998 B"r; A. The declarator theor of recognition is a theor according to which recognition

of a state is merel an ac-nowledgment of the fact of its eGistence. In other words" the recogni?ed state alread eGists and can eGist e#en without such recognition. %or eGample" when other countries recogni?e Cangladesh" Cangladesh alread eGisted as a state e#en without such recognition. 4. Di$tin0&i$h 2rie +* 2&t !+e"r+* 2etween the !on$tit&ti'e theor* "n( the (e!+"r"tor* theor* !on!ernin0 re!o0nition o $t"te$) 7,HHA B"r; A. The constituti#e theor is the minorit #iew which holds that recognition is the last element that con#erts or constitutes the entit being recogni?ed into an international personH while the declarator theor is the ma$orit #iew that recognition affirms the pre-eGisting fact that the entit being recogni?ed alread possesses the status of an international person. In the former recognition is regarded as mandator and legal and ma be demanded as a matter of right b an entit that can establish its possession of the four essential elements of a stateH while the latter recognition is highl political and discretionar . RECOGNITION OF GOVERNMENT Re!o0nition o Go'ernment Does not necessaril signif that recognition of a 'tate to go#ernment ma not be independent 0e#ocable Re!o0nition o St"te Includes recognition or go#ernment go#ernment an essential element of a 'tate 3enerall " irre#ocable

4. Di$tin0&i$h re!o0nition o St"te rom re!o0nition o Go'ernment) 789I@ B"r; A. L1M 0ecognition of state carries with it the recognition of go#ernment since the former implies that a state recogni?ed has all the essential re>uisites of a state at he time recognition is eGtended. L2M Ince recognition of state is accorded" it is generall irre#ocable. 0ecognition of go#ernment" on the other hand" ma be withheld from a succeeding go#ernment brought about b #iolent or unconstitutional means. Criteri" or Re!o0nition 1. O23e!ti'e Te$t go#ernment should be E%%E+TI*E and 'T(CLE go#ernment is in possession of 'tate machiner there is little resistance to its authorit 2. S&23e!ti'e Te$t JILLI434E'' and (CILITP the go#ernment is willing and able to discharge its international obligations 2 Doctrines To2"r or Wi+$on Do!trine suggested b %oreign Minister Tobar LEcuadorMH reiterated b !resident Joodrow Jilson LD'M recognition is withheld from go#ernments established b re#olutionar means re#olution" ci#il war" coup dKetat" other forms of internal #iolence" D4TIL" freel elected representati#es of the people ha#e organi?ed a constitutional go#ernment E$tr"(" Do!trine

(s to Scope

(s to )evoca!il ity

a reaction to the TobarQJilson DoctrineH formulated b MeGican %oreign Minister 3enaro Estrada disclaims right of foreign states to rule upon legitimac of a go#ernment of a foreign 'tate a polic of ne#er issuing an declaration gi#ing recognition to go#ernments instead" it simpl accepts whate#er go#ernment is in effecti#e control without raising the issue of recognition 4. Di$tin0&i$h 2rie +* 2&t !+e"r+* 2etween the Wi+$on (o!trine "n( the E$tr"(" (o!trine re0"r(in0 re!o0nition o 0o'ernment$) 7,HHA B"r; A. In the Jilson or Tobar doctrine" a go#ernment established b means re#olution" ci#il war" coup d* etat or other forms of internal #iolence will not be recogni?ed until the freel elected representati#es of the people ha#e organi?ed a constitutional go#ernment" while in the Estrada doctrine an diplomatic representati#es in a countr where an uphea#al has ta-en place will deal or not deal with whate#er go#ernment is in control therein at the time and either action shall not be ta-en as a $udgment on the legitimac of the said go#ernment. -in($ o Re!o0nition Re!o0nition De /&re (s to +uration (s to ,""ect on +iplo at ic )elations 0elati#el permanent Crings about full diplomatic relationsQintercou rse Re!o0niti on De F"!to !ro#isiona l" Limited to certain $uridical relationsH for instance" it does not

(s to ,""ect on 'ropertie s (!road

*ests title to recogni?ed go#ernment in properties abroad

bring about diplomatic immunitie s Does not #est such title

Re!o0nition De /&re 3i#en to a go#ernment that satisfies both the ob$ecti#e and sub$ecti#e criteria Re!o0nition De F"!to 3i#en to go#ernments that ha#e not full satisfied ob$ecti#e and sub$ecti#e criteria EF./ Jhile wielding effecti#e power" it might ha#e not et ac>uired sufficient stabilit Con$e5&en!e$ o Re!o0nition o Go'ernment 1. The recogni?ed go#ernment or 'tate ac-uires the capacity to enter into diplo atic relations with recogni?ing 'tates and to ma-e treaties with them 2. The recogni?ed go#ernment or 'tate ac-uires the ri$ht o" suin$ in the courts of law of the recogni?ing 'tate 3. It is i une "ro the jurisdiction of the courts of law of recogni?ing 'tate 6. It !eco es entitled to de and and receive possession o" property situated within the $urisdiction of a recogni?ing 'tate" which formerl belonged to the preceding go#ernment at the time of its supercession 8. Its effect is to preclude the courts o" reco$ni.in$ State from assign $udgment on the legalit of its acts" past and future. 0ecognition being retroacti#e.

Thus" (ct of 'tate Doctrine now applies 4. Who h"$ the "&thorit* to re!o0ni1e6 A. It is a matter to be determined according to the municipal law of each 'tate. In the !hilippines" there is no eGplicit pro#ision in the +onstitution which #ests this power in an department. Cut since under the +onstitution" the !resident is empowered to appoint and recei#e ambassadors and public ministers" it is conceded that b implication" it is the EGecuti#e Department that is primaril endowed with the power to recogni?e foreign go#ernments and 'tates. 1(rt. *II" 159) +onstitution; The legalit and wisdom of recognition accorded an foreign entit is not sub$ect to $udicial re#iew. The courts are bound b the acts of political department of the go#ernment. The action of the EGecuti#e in recogni?ing or refusing to recogni?e a foreign 'tate or go#ernment is properl within the scope of $udicial notice. 4. I$ the re!o0nition e=ten(e( 2* the Pre$i(ent to " orei0n 0o'ernment $&23e!t to 3&(i!i"+ re'iew6 A. 4IO It is purel a political >uestion. BELLIGERENC? , Sen$e$ o Be++i0eren!* 1. 'tate of Jar between 2 or more 'tates Celligerenc the 'tates at war are called ,Celligerent 'tates. 2. (ctual =ostilities amounting to +i#il Jar within a 'tate Insurgenc there is $ust 1 'tate presupposes the eGistence of a rebel mo#ement De'e+opment$ in " Re2e+ Mo'ement

'tage of Insurgenc EarlierQnascentQless-de#eloped stage of rebellion There is not much international complication Matter of municipal law EF./ +aptured rebels are prosecuted for rebellion 'tage of Celligerenc ( higher stage" as the stage of insurgenc becomes widespread (lread a matter of international law" not of municipal law EF./ +aptures rebels must be treated li-e prisoners of warH considered as combatantsH hence" cannot be eGecuted

In$&r0en!* a mere initial stage of war. It in#ol#es a rebel mo#ement" and is usuall not recogni?ed

Be++i0eren!* more serious and widespread and presupposes the eGistence of war between 2 or more states L1st senseM or actual ci#il war within a single state L2nd senseM sanctions are go#erned b the go#erned b rules on municipal law international law as 0e#ised !enal the belligerents +ode" i.e. rebellion ma be gi#en international personalit Note/ (bu 'a aff is not a rebel group it is a mere bandit group.

Re5&i$ite$ o Be++i0eren!* BCOWSC 1. an or$ani.ed civil $overn ent that has control and direction o#er the armed struggle launched b the rebelsH a ,pro#isional go#ernment. 2. occupation of a substantial portion of the stateKs territor H more or less permanent occupation legitimate go#ernment must use superior militar force to dislodge the rebels 3. seriousness o" the stru$$le" which must be so widespread thereb lea#ing no doubt as to the outcomeH and must be so widespread" lea#ing no doubt as to the outcome 4. <"$ the CPPJNPA "n( MILF !omp+ie( with the$e !on(ition$6 A. 4IO CDT" there are some indications the are stri#ing to meet the conditions. The eGecuted common criminals" after a trial. It is li-e sa ing the ha#e a go#ernment Note/ The maintenance of peace and order" and administration of $ustice" are constituent functions of the go#ernment +amp (bu-Ca-r&MIL% almost had control of a substantial portion of territor go#ernment had to use all its militar might and di#ert its budget +!!Q4!( sends message that the are obser#ing the Laws of Jar +aptured soliders are announced as !IJsH had 0ed +ross representati#es 6. willin$ness on the part of the rebels to obser#e the rules and customs of war.

4. E=p+"in> &$in0 e="mp+e> re!o0nition o 2e++i0eren!*) 78998 B"r; A. 0ecognition of belligerenc is the formal ac-nowledgment b a third part of the eGistence of a state of war between the central go#ernment and a portion of that state. Celligerenc eGists when a si?able portion of the territor of a state is under the effecti#e control of an insurgent communit which is see-ing to establish a separate go#ernment and the insurgents are in de facto control of a portion of the territor and population" ha#e a political organi?ation" and are able to maintain such control and conduct themsel#es according to the laws of war. %or eGample" 3reat Critain recogni?ed a state of belligerenc in the Dnited 'tates during the +i#il Jar. Con$e5&en!e$ o Re!o0nition o Be++i0erent$ 1. Cefore recognition as such" it is the legitimate go#ernment that is responsible for the acts of the rebels affecting foreignnationals and their properties. 0ebel go#ernment is responsible for the acts of the rebels affecting foreign nationals and propertiesH 2. Laws and customs of war in conducting the hostilities must be obser#edH EF./ cannot eGecute captured rebels" considered as !IJs 3. %rom the point of #iew of 3rd 'tates" the effect of recognition of belligerenc is to put them under obligation to obser#e strict neutralit and abide b the conse>uences arising from that position. must obser#e Laws of 4eutralit EF./ 1. must abstain from ta-ing part in the hostilitiesH 2. most ac>uiesce to restrictions

imposed b the rebels" such as #isit and search of its merchant ships 6. 0ebels are enem combatants and accorded the rights of prisoners of war. and essentiall " this means that there are 2 competing go#ernments in 1 countr 8. In the side of the rebels" the recognition of belligerenc puts them under responsibilit to 3rd 'tates and to the legitimate go#ernment for all their acts which do not conform to the laws and customs of war. FORMS OF RECOGNITION 1. EGpress 2. Implied EF.H !roclamation b the legitimate go#ernment of a bloc-ade of ports held b the rebels Done b Lincoln during the (merican +i#il Jar 4. Wh"t "2o&t pe"!e t"+G$6 A. 4IT implied recognition. Cut" circumstances ma be such as to become an implied recognition EF./ =olding peach tal-s in a foreign countr . 0ebels call the foreign countr a ,neutral state.. If a mere insurgenc " it is a purel internal matter no need for tal-s abroad Territor* - the fiGed and permanent portion on the earthKs surface inhabited b the people of the state and o#er which it has supreme authorit - consists of the portion of the surface of the globe on which that 'tate settles and o#er which it has supreme authorit - an eGercise of so#ereignt "

co#ering not onl land" but also the atmosphere as well Di$!o'er* "n( O!!&p"tion (n original mode of ac>uisition of territor belonging to no one ,terra nullius. land to be ac>uired must be terra nullius 4. To("*> ew> i "n* p+"!e$ "re terr" n&++i&$) Wh* i$ thi$ mo(e then import"nt6 A. !ast occupations are source of modern boundar disputes 4. When i$ " territor* Eterr" n&++i&$6F A. Dnder the Ild +oncept a territor is not necessaril uninhabitedO ( territor is terra nullius" if" e#en if occupied" the peopleoccup ing it has a ci#ili?ation that falls below the European standard. This was the $ustification for the 'panish coloni?ation of the !hilippines" and the European coloni?ation of (frica. =owe#er" this old concept is no longer #alid under contemporar international lawO , RE4UISITES L1M Disco#er Q!ossession Mere disco#er gi#es onl an Inchoate 0ight of Disco#er 4. Wh"t i$ the e e!t o thi$ ri0ht6 A. It bars other states" within a reasonable time" from entering the territor " so that the disco#ering state ma establish a settlement therein an commence administration and occupation. Ince the disco#ering state begins eGercising so#ereign rights o#er the territor " the inchoate

right ripens and is perfected into a full title 4. Wh"t i the (i$!o'erin0 $t"te "i+$ to e=er!i$e $o'erei0n ri0ht$6 A. The inchoate title is eGtinguished" and the territor becomes terra nullius again. 4. <ow i$ thi$ (one "n( e e!te(6 A. !ossession must be claimed on behalf of the 'tate represented b the disco#erer. It ma then be effected through a formal proclamation and the s mbolic act of raising the stateKs national flag. 2. Effecti#e Iccupation Does not necessaril re>uire continuous displa of authorit in e#er part of the territor claimed (uthorit must be eGercised as and when occasion demands Thus" when the territor is thinl populated and uninhabited" #er little actual eGercise of so#ereign rights is needed in the absence of competition Do!trine o E e!ti'e O!!&p"tion disco#er alone gi#es onl an inchoate titleH it must be followed within a reasonable time b effecti#e occupation effecti#e occupation does not necessaril re>uire continuous displa of authorit in e#er part of the territor claimed an occupation made is #alid

onl with respect to and eGtends onl to the area effecti#el occupied. under the ,Prin!ip+e o E e!ti'e O!!&p"tion". the following doctrinesQprinciples are no longer applicable toda / aM <inter+"n( Do!trine Iccupation of coasts results to claim on the uneGplored interior bM Ri0ht o Conti0&it* Effecti#e occupation of a territor ma-es the possessorKs so#ereignt eGtend o#er neighboring territories as far as is necessar for the integrit " securit and defense of the land actuall occupied Pre$!ription ac>uisition of territor b an a#erse holding continued through a long term of ears deri#ati#e mode of ac>uisition b which territor belonging to 1 'tate is transferred to the so#ereignt of another 'tate b reason of the ad#erse and uninterrupted possession thereof b the latter for a sufficientl long period of time , RE4UISITES aM continuous and undisturbed possession 4. Wh"t i there "re !+"im$ or prote$t$ to the St"teK$ po$$e$$ion6 A. 4IT undisturbedO bM lapse of a period of time 4o rule as to length of time re>uired Suestion of fact

Ce$$ion a deri#ati#e mode of ac>uisition b which territor belonging to 1 'tate is transferred to the so#ereignt of another 'tate in accordance with an agreement between them a bilateral agreement whereb one 'tate transfers so#ereignt o#er a definite portion of territor to another 'tate E.g. Treat of cession Lma be an outcome of peaceful negotiations 1#oluntar ; or the result of war1forced;M , -INDS. 1. Total +ession - comprises the entiret of 1 'tateKs domain - the ceding 'tate is absorbed b the ac>uiring 'tate and ceases to eGist - EF./ +ession of Norea to 2apan under the 22 (ug. 151: Treat 2. !artial +ession - comprises onl a fractional portion of the ceding 'tateKs territor - cession of the !hilippine Islands b 'pain to the D' in the Treat of !aris of 1: Dec. 1599 - %orms/ aM Treat of 'ale EF./ L1M 'ale b 0ussia of (las-a to D' L2M 'ale b 'pain of +aroline Islands to 3erman bM %ree 3ifts EF/ L1M +ession of a portion of the =orse-'hoe 0eef in La-e Erie b DN to D' Con5&e$t deri#ati#e mode of ac>uisition

whereb the territor of 1 'tate is con>uered in the course of war and thereafter anneGed to and placed under the so#ereignt of the con>uering 'tate the ta-ing possession of hostile territor through militar force in time of war and b which the #ictorious belligerent compels the enem to surrender so#ereignt of that territor thus occupied ac>uisition of territor b force of arms howe#er" con>uest alone merel gi#es an inchoate rightH ac>uisition must be completed b formal act of anneGation no longer regarded as lawful D4 +harter prohibits resort to threat or use of force against a 'tateKs territorial integrit or political independence Con5&e$t i$ Di erent rom EMi+it"r* or Be++i0erent O!!&p"tionF (ct whereb a militar commander in the course of war gains effecti#e possession of an enem territor C itself" does not effect an ac>uisition of territor

A!!retion the increase in the land area of a 'tate caused b the operation of the forces of nature" or artificiall " through human labor A!!e$$io !e("t prin!ip"+i Laccessor follows the principalM is the rule which" in general" go#erns all the forms of accretion. EF./ L1M 0eclamation pro$ects in Manila Ca L2M !olders of the 4etherlands

COMPONENTS OF TERRITOR? TERRITORIAL DOMAIN The landmass where the people li#e Intern"+ W"ter$ These are bodies of water within the land boundaries of a 'tate" or are closel lin-ed to its land domain" such that the are considered as legall e>ui#alent to national land includes/ ri'er$> +"Ge$ "n( +"n(# +o!Ge( $e"$> !"n"+$> "n( po+"r re0ion$. Ri'er$ -in($ o Ri'er$ L1M 4ational 0i#ers Lie wholl within 1 'tateKs territorial domain from source to mouth Celongs eGclusi#el to that 'tate EF./ !asig 0i#er

L2M Coundar 0i#ers 'eparates 2 Different 'tates Celongs to both 'tates/ If ri#er is na#igable the boundar line is the middle of the na#igable channel ,thalweg. If the ri#er is not na#igable the boundar line is the midchannel EF./ 't. Lawrence 0i#er between D' and +anada L3M Multinational 0i#ers 0uns through se#eral 'tates %orms part of the territor of the 'tates through which it passes EF./ +ongo 0i#er" Me-ong 0i#er

L6M International 0i#ers na#igable from the open sea" and which separate or pass through se#eral 'tates between their sources and mouths In peacetime" freedom of na#igation is allowed or recogni?ed b con#entional international law L"Ge$ "n( L"n(#+o!Ge( Se"$ If entirel enclosed b territor of 1 state/ !art of that 'tateKs territor If surrounded b territories of se#eral 'tates/ !art of the surrounding 'tates C"n"+$ (rtificiall constructed waterwa s GR/ Celongs to the 'tateKs territor DPN/ Important Inter-Iceanic +anals go#erned b 'pecial 0egime L1M 'ue? +anal L2M !anama +anal <i$tori! W"ter$ Jaters considered internal onl because of eGistence of a historic title" otherwise" should not ha#e that charater EF./ Ca of +ancale in %rance MARITIME AND FLUVIAL DOMAIN Lone$ o the Se" - Jaters ad$acent to the coasts of a 'tate to a specified limit 8) Territori"+ Se" comprises in the marginal belt ad$acent to the land area or the coast and includes generall the ba s" gulfs and straights which do not ha#e the character of historic #aters Lwaters that are legall part of the internal waters of the 'tateM portion of the open sea ad$acent to the 'tateKs shores" o#er which that 'tate eGercises $urisdictional

control Casis necessit of self-defense Effect territorial supremac o#er the territorial sea" eGclusi#e en$o ment of fishing rights and other coastal rights CDT/ 'ub$ect to the 0I3=T I% I44I+E4T !(''(3E La foreign 'tate ma eGercise its ri$ht o" innocent passa$eM 4. When i$ p"$$"0e inno!ent6 A. Jhen it is not pre$udicial to the peace" good order" or securit of the coastal 'tate

surface and show their flag 4uclear-powered ships" ships carr ing nuclear and dangerous substances must carr documents and obser#e special safet measures 4. Wh"t i$ the e=tent o the territori"+ $e"6 A. 1. %ormerl " 3 nautical miles from the low water mar- based on the theor that this is all that a 'tate could defend. This has been practicall abandoned. 2. 1592 +on#ention of the Law of the 'ea pro#ides the maGimum limit of 12 nautical miles from the baseline. 4. Wh"t i$ the 2"$e+ine6 A. Depends on the method/ 1. 4ormal Caseline Method Territorial sea is drawn from the low-water mar-. 4. Wh"t i$ the +ow#w"ter m"rG6 A. The line on the shore reached b the sea at low tide. Itherwise -nown as the ,baseline.. 2. 'traight Caseline Method ( straight line is drawn across the sea" from headland to headland" or from island to island. That straight line then becomes the baseline from which the territorial sea is measured. 4. Wh"t h"ppen$ to the w"ter$ in$i(e the +ine6 A. +onsidered internal waters. =owe#er" the baseline must not depart to an appreciable eGtent from the general direction of the coast 4. When i$ thi$ &$e(6 A. Jhen the coastline is deepl indented" or when there is a fringe of islands along the coast in its immediate #icinit .

Ri0ht o Inno!ent P"$$"0e The right of continuous and eGpeditious na#igation of a foreign shop through a 'tateKs territorial sea for the purpose of tra#ersing that sea without entering the internal waters or calling at a roadstead or port facilit outside the internal waters" or proceeding to or from internal waters or a call at such roadstead or port facilit 4. E=p+"in Inno!ent P"$$"0e) 78998 B"r; A. Innocent passage means the right of continuous and eGpeditious na#igation of a foreign ship through the territorial sea of a 'tate for the purpose of tra#ersing that sea without entering the internal waters or calling at a roadstead or port facilit outside internal water or proceeding to or from internal waters or a call at such roadstead or port facilit . The passage is innocent so long as it is not pre$udicial to the peace" good order or securit of the coastal 'tate. E=tent "n( Limit"tion$ o Ri0ht o Inno!ent P"$$"0e EGtends to (LL ships merchant and warships 'ubmarines must na#igate on the

Di$tin0&i$h 2rie +* 2&t !+e"r+* 2etween the territori"+ $e" "n( the intern"+ w"ter$ o the Phi+ippine$) 7,HHA B"r; Territorial water is defined b historic right or treat limits while internal water is defined b the archipelago doctrine. The territorial waters" as defined in the +on#ention on the Law of the 'ea" has a uniform breadth of 12 miles measured from the lower water mar- of the coastH while the outermost points of our archipelago which are connected with baselines and all waters comprised therein are regarded as internal waters. ,) Conti0&o&$ Lone ?one ad$acent to the territorial sea" o#er which the coastal 'tate ma eGercise such control as is necessar to/ !re#ent infringement of its customs" fiscal" immigration or sanitar laws within its territor or territorial seaH !unish such infringement eGtends to a maGimum of 26 nautical miles from the baseline from which the territorial sea is measured. 3) E=!+&$i'e E!onomi! Lone a maGimum ?one of 2:: nautical miles from the baseline from which the territorial sea is measured" o#er which" the coastal 'tate eGercises so#ereign rights o#er all the economic resources of the sea" sea-bed and subsoil Ri0ht$ o other St"te$ in the EEL LaM %reedom of na#igation and o#erflight LbM %reedom to la submarine cables and pipelines LcM %reedom to engage in other internationall lawful uses of the sea related to said functions Ri0ht$ o L"n(#+o!Ge( St"te$

0ight to participate" on an e>uitable basis" in the eGploitation of an appropriate part of the surplus of the li#ing resources of the EET of the coastal 'tates of the same sub-region or region Di$tin0&i$h 2rie +* 2&t !+e"r+* 2etween the !onti0&o&$ 1one "n( e=!+&$i'e e!onomi! 1one) 7,HHA B"r; The contiguous ?one is the area which is -nown as the protecti#e $urisdiction and starts from 12th nautical mile from low water mar- LbaselineM" while the EET is the area which ends at the 2::th nautical mile from the baseline. In the latter" no state reall has eGclusi#e ownership of it but the state which has a #alid claim on it according to the D4 +on#ention on the Law of the 'eas agreement has the right to eGplore and eGploit its natural resourcesH while in the former the coastal state ma eGercise the control necessar to aM pre#ent infringement of its customs" fiscal immigration or sanitar regulations within its territor bM punish infringement of the abo#e regulations within its territor or territorial sea. 4. En&mer"te the ri0ht$ o the !o"$t"+ $t"te in the e=!+&$i'e e!onomi! 1one) 7,HH@> ,HHH B"r; A. The following are the rights of the coastal state in the eGclusi#e economic ?one/ 1. so#ereign rights for the purpose of eGploring and eGploiting" conser#ing and managing the li#ing and nonli#ing resources in the super$acent waters of the sea-bed and the resources of the sea-bed and subsoilH 2. so#ereign rights with respect to the other acti#ities for the economic eGploitation and eGploration of the ?one or EET" such as production of energ from water" currents and windsH

3. $urisdictional right with respect to establishment and use of artificial islandsH 6. $urisdictional right as to protection and preser#ation of the marine en#ironmentH and 8. $urisdictional right o#er marine scientific research 7. other rights and duties pro#ided for in the Law of the 'ea +on#ention. L(rticle 87" Law of the 'ea +on#entionM These treat pro#isions form part of the !hilippine Law" the !hilippines being a signator to the D4+LI'. A) Continent"+ She+ 4. E=p+"in the me"nin0 o !ontinent"+ $he+ ) 78998 B"r; A. The continental shelf comprises the seabed and subsoil of the submarine areas that eGtend be ond the territorial sea throughout the natural prolongation of its land territor to the outer edge of the continental marginH or to a distance of more than 2:: nautical miles from the baselines form which the breadth of the territorial sea is measured where the outer edge of the continental shelf does not eGtend up to that distance. Ri0ht$ o the Co"$t"+ St"te so#ereign rights for the purpose of eGploring and eGploiting its natural resources rights are eGclusi#e if the 'tate does not eGplore or eGploit the continental shelf" no one ma do so without its eGpress consent Ar!hipe+"0i! Do!trine , -in($ o Ar!hipe+"0o$. 1. +oastal (rchipelago situated close to a mainland"

and ma be considered part of such mainland 2. Mid-Icean (rchipelago groups of islands situated in the ocean at such distance from the coasts of firm land LmainlandM EF./ !hilippines emphasi?es the unit of land and waters b defining an archipelago either as/ ( group of island surrounded b watersH or ( bod of water studded with islands thus" baselines are drawn b connecting the appropriate points of the outermost islands to encircle the islands within the archipelago. R&+e$ Go'ernin0 the B"$e+ine$ LaM 'uch baselines should not depart radicall from the general direction of the coast" or from the general configuration of the archipelago LbM Jithin the baselines are included the main islands an area with a maGimum water area to land area ratio of 5/1 LcM Length of baselines shall not eGceed 1 &nautical miles F!4/ Dp to 3U of the total number of baselines ma ha#e a maGimum length of 128 nautical miles E e!t o the B"$e+ine$ LaM The waters inside the baselines are considered internal watersH LbM The territorial sea" etc. are measured from such baselinesH LcM (rchipelagic 'tate eGercises so#ereign rights o#er all the waters enclosed b the baselines

Limit"tion % Ar!hipe+"0i! Se"+"ne$ (rchipelagic 'tate must designate sea lands an air route for the continuous and eGpeditious passage of foreign ships and aircraft through or o#er its archipelagic waters and ad$acent territorial sea !assage onl for continuous" eGpeditious" and unobstructed transit between 1 part of the high seas or an EEF to another part of the high seas or an EET 4. Wh"t i none "re (e$i0n"te(6 A. 0ight of archipelagic sealane passage ma still be eGercised through the routes normall used for international na#igation The !hilippines adheres to the (rchipelagic Doctrine (rt. I" 159) +onstitution/ ,The waters around" between" and connecting the islands of the archipelago" regardless of their breadth and dimensions" form part of the internal waters of the !hilippines.. (lso embodied in the 1592 +on#ention of the Law of the 'ea" (rt. 6) D4+LI' became effecti#e on 17 4o#. 1556" after its ratification b more than the re>uired 7: of the signator 'tates 4. Wh"t (o *o& &n(er$t"n( 2* the "r!hipe+"0i! (o!trine6 I$ thi$ re +e!te( in the 89:I Con$tit&tion6 789:9> 89I9> 89I@ B"r; A. The archipelagic doctrine emphasi?es the unit of land and waters b defining an archipelago either as a group of islands surrounded b waters or a bod of water

with studded with islands. %or this purpose" it re>uires that baselines be drawn b connecting the appropriate points of the outermost islands to encircle the islands within the archipelago. The waters on the landward side of the baselines regardless of breadth" or dimensions are merel internal waters. (rticle I" 'ec. 1 of the +onstitution pro#ides that the national territor of the !hilippines includes the !hilippine archipelago" with all the islands and waters embraced thereinH and the waters around" between" and connecting the islands of the archipelago" regardless of their breadth and dimensions form part of the internal waters of the !hilippines. @) The re0ime o the <i0h Se"$ belongs to e#er one and to no one both res co ones and res nullius e#er one ma en$o the following rights o#er the high seas/ LaM 4a#igation LbM %ishing LcM 'cientific research LdM Mining LeM La ing of submarine cables or pipelinesH and LfM other human acti#ities in the open sea and the ocean floor the freedoms eGtend to the air space abo#e the high seas Do!trine o <ot P&r$&it The pursuit of a foreign #essel underta-en b the coastal 'tate which has ,good reason tobelie#e that the ship has #iolated the laws and regulations of that 'tate.. The pursuit must/ 1. Ce commenced when the ship is within the pursuing 'tateKs/ a. Internal JatersH

2. 3. 6.

8.

b. Territorial 'eaH or c. +ontiguous Tone Ma be continued outside such waters if the pursuit has not been interrupted +ontinuous and unabated +eases as soon as the foreign ship enters the territorial sea of/ a. Its own 'tateH or b. That of a 3rd 'tate Ce underta-en b / a. JarshipsH or b. Militar aircraftH or c. Ither shipsQaircraft cleared and identifiable as being in the go#ernment ser#ice and authori?ed to that effect (lso applies to #iolations of laws and regulations of the coastal 'tate applicable to the EET and to the continental shelf.

registrationM the ship possesses> for it is nationalit which gi#es the right to fl a countr Ks flag F+"0$ o Con'enien!e registration of an ship in return for a pa ment fee 4. Di$tin0&i$h 2rie +* 2&t !+e"r+* 2etween the +"0 $t"te "n( the +"0 o !on'enien!e) 7,HHA B"r; A. %lag state means a ship has the nationalit of the flag state it flies" but there must be a genuine lin- between the state and the ship. /(rticle 01 o" the Convention o" the La# o" the Sea.1 %lag of con#enience refers to a state with which a #essel is registered for #arious reasons such as low or non-eGistent taGation or low operating costs although the ship has no genuine lin- with that state. /2arris, Cases and 3aterilas on 4nternational La#, 5th ed., 1006, p. 475.1 AERIAL DOMAIN the airspace abo#e the territorial and maritime domains of the 'tate" to the limits of the atmosphere does not include the outer space 8) Air Sp"!e the air space abo#e the 'tateKs terrestrial and maritime territor ,<E#er 'tate has complete and eGclusi#e so#ereignt o#er the air space abo#e its territor . +on#ention on International +i#il (#iation ,Territor . includes terrestrial and maritime territor thus" includes air space abo#e territorial sea 4ITE/ 4I right of innocent passageO the air space abo#e the high seas is open to all aircraft" $ust as the high seas is accessible to ships of all 'tates

Deep Se" Be( The sea-bed be ond the continental shelf Dnder the D4+LI' resources of the deep sea-bed are reser#ed as the ,common heritage of man-ind. Free(om o N"'i0"tion the right to sail ships on the seas which is open to all 'tates and land-loc-ed countries Gener"+ R&+e. #essels sailing on the high seas are sub$ect onl to international law and the laws of the flag state E=!eption$. aM "orei$n erchant ships #iolating the laws of the coastal 'tateH bM pirate shipsH cM sla#e trade shipsH dM an ship engaged in unauthori?ed broadcastingH and eM ships without nationalit " or fl ing a false flag or refusing to show its flag. F+"0 St"te the 'tate whose nationalit LshipKs

the 'tate whose aerial space is #iolated can ta-e measures to protect itself" but it does not mean that 'tates ha#e an unlimited right to attac- the intruding aircraft Lintruding aircraft can be ordered either to lea#e the 'tateKs air space or to landM

mass destruction shall not be placed in orbit around the earth 4. Wh"t i$ the 2o&n("r* 2etween the "ir $p"!e "n( the o&ter $p"!e6 A. 4o accepted answer etO There are different opinions/ 1. That it should be near the lowest altitude LperigeeM at which artificial earth satellites can remain in orbit without being destro ed b friction with the air around 15: -m from earthKs surface 2. Theoretical limit of air flights is 5: -m abo#e the earth 3. %unctional (pproach The legal regime go#erning space acti#ities are based" not on a boundar line" but on the nature of the acti#ities T<E UNITED NATIONS It is an international organi?ation created at the 'an %rancisco +onference which was held in the Dnited 'tates from (pril 28 to 2une 27" 1568. The D.4." as it is commonl called" succeeded the League of 4ations and is go#erned b a +harter which came into force on Ictober 26" 1568. composed originall of onl 81 members" the D4 has grown rapidl to include most of the states in the world. Who w"$ the "('o!"te o ormin0 the UN6 In his famous %ourteen !oints for the peace settlement" Woo(row Wi+$on called for the establishment of a ,general association of nations for world peace under specific co#enants for mutual guarantees of political independence and territorial integrit to large and small 'tates ali-e.. (nd so" the Lea$ue o" Nations was formed.

/. What are the 0 air $reedo!s, A. ?a@ overflight without landingA ?b@ landing for non-traffic purposesA ?c@ put down traffic from state to airlineA ?d@ embark traffic destined for state of aircraftA and ?e@ embark traffic or put down traffic to or from a third state

2. O&ter Sp"!e 7res co onesM the space be ond the airspace surrounding the earth or be ond the national airspace" which is completel be ond the so#ereignt of an 'tate the moon and the other celestial bodies form part of the outer space LMoon Treat of 15)5M thus" it is not sub$ect to national appropriation free for all eGploration and use b all 'tates and cannot be anneGed b an 'tate go#erned b a regime similar to that of the high seas Tre"t* on Prin!ip+e$ Go'ernin0 the A!ti'itie$ o St"te$ in the E=p+or"tion "n( U$e o O&ter Sp"!e 7O&ter Sp"!e Tre"t*; Iuter 'pace is free for eGploration and use b 'tates +annot be anneGed b an 'tate Its use and eGploration must be carried out for the benefit of all countries and in accordance with international law +elestial bodies shall be used eGclusi#el for peaceful purposes 4uclear weapons and weapons of

Who !oine( the n"me UN6 It was !resident 0oose#elt who suggested earl in 1562 the name D4 for the group of countries which were fighting the (Gis powers. Wh"t "re the prin!ip"+ p&rpo$e$ o the UN6 1. To maintain international peace and securit 2. To de#elop friendl relations among nations 3. To achie#e international cooperation in sol#ing international economic" social" cultural and humanitarian problems 6. To promote respect for human rights 8. To be a center of harmoni?ing the actions of nations towards those common goals. Wh"t "re the prin!ip+e$ o the UN6 1. (ll its members are e>ual and all are committed to fulfill in good faith their obligations under the +harter 2. To settle their disputes with each other b peaceful means 3. To refrain form the threat or use of force in their international relations 6. To refrain from assisting an 'tate against which the D4 is ta-ing pre#enti#e or enforcement action. , -in($ o Mem2er$hip a. Iriginal b. Electi#e those subse>uentl admitted upon the recommendation of the D4 'ecurit +ouncil. 4&"+i 1. 2. 3. i!"tion$ or Mem2er$hip Must be 'tate Must be !eace-lo#ing Must accept the obligations as member 6. In the $udgment of the Irgani?ation" be able and willing

to carr out such obligation. <ow i$ A(mi$$ion !on(&!te(6 1. 0ecommendation of a >ualified ma$orit in the 'ecurit +ouncil - The affirmati#e #ote of at least 5 members including the Cig 8. 2. (ppro#al of the 3eneral (ssembl L3(M b a #ote of at least 2Q3 of those present and votin$. 4ote/ Coth '+ and 3( #otes must be complied with. S&$pen$ion o Mem2er$hip 'uspension ma occur when a pre#enti#e or enforcement action has been ta-en b the '+. The '+ ma " b a >ualified ma$orit " recommend suspension to the 3( who shall in turn concur with a 2Q3 #ote of those present and #oting. Discipline does not suspend the memberKs obligations but onl the eGercise of its rights and pri#ileges as a member. Inl the '+ ma lift the suspension b a >ualified ma$orit . E=p&+$ion o " Mem2er The penalt of eGpulsion ma be imposed upon a member which has persistently #iolated the principles in the D4 +harter. 'ame #oting re>uirement as to suspension. With(r"w"+ o Mem2er$hip % In(one$i" C"$eThe +harter is silent regarding withdrawal of membership. In 1598" Indonesia withdrew its membership from the D4 and it was not compelled to remain. 'ubse>uentl " upon !resident 'u-arnoKs o#erthrow" Indonesia resumed its membership" which was accepted b the D4. The Prin!ip"+ Or0"n$ 1. 8eneral (sse !ly /8(1

2. Security Council /SC1 3. ,cono ic and Social Council /,SC1 6. Trusteeship Council /TC1 8. 4nternational Court o" &ustice /4C&1 7. Secretariat S&2$i(i"r* Or0"n$ % those which was created b the +harter itself or which it allows to be created whene#er necessar b the '+ or 3(. 1. Little (sse !ly Interim +ommittee" created in 156) for a term of one e ar and re-established in 1565 for an indefinite term. +omposed of one delegate for each member-state" it meets when the 3eneral (ssembl is in recess and assists this bod in the performance of its functions. 7. 3ilitary Sta"" Co ittee 3. 2u an )i$hts Co ission Spe!i"+i1e( A0en!ie$ % not part of the D4" but ha#e been brought into close contact with it because of their purposes and functions" such as/ 1. 9orld 2ealth :r$ani.ation 2. 4nternational 3onetary ;und 3. Technical (ssistance %oard Propo$"+$ or Amen(ment$ to the UN Ch"rter "n( R"ti i!"tion , w"*$ o "(optin0 propo$"+$. a. directly" b 2Q3 #otes of all 3( members b. b 2Q3 of a $eneral con"erence called for this purpose b 2Q3 of the 3( and an 5 members of the '+. (n amendment thus proposed shall be sub$ect to ratification b at least 2Q3 of the 3(" including the permanent members of the '+. @ABA@

UN Gener"+ A$$em2+* This is the central or$an of the D4. The principal deliberati#e bod of the organi?ation and is #ested with $urisdiction o#er matters concerning the internal machiner and operations of the D4. GA Compo$ition +onsists of all the members of the D4. Each member is entitled to send no more than 8 delegates and 8 alternates and as man technical and other personnel as it ma need. The reason for this s stem of multiple delegates is to enable the members to attend of se#eral meetings that ma be ta-ing place at the same time in the different organs or committees of the Irgani?ation. =owe#er" each delegation is entitled onl to one #ote in the decisions to be made b the 3(. GA Se$$ion$ 1. )e$ular sessions e#er ear beginning the third Tuesda of 'eptember. 2. Special sessions ma be called at the re>uest of the '+" a ma$orit of the member states" or one member with the concurrence of the ma$orit . 3. , er$ency special session ma be called within 26 hours at the re>uest of the '+ b #ote of an 5 members or b a ma$orit of the members of the D4. Some Import"nt F&n!tion$ o the GA 1. Deliberati#e discuss principles regarding maintenance of international peace and securit and ma ta-e appropriate measures toward this end.

2. 'uper#isor recei#es and considers reports from the other organs of the D4. 3. Electi#e important #oting functions are also #ested in the 3(" such as the election of the non-permanent members of the '+" some members of the T+ and all the members of the E'+" and with the '+ selects the $udges of the I+2H also participates in the amendment of the +harter. 6. Cudgetar controls the finances of the D4 8. +onstituent amendment of the charter. GA Votin0 R&+e$ Each member or delegation has 1 #ote in the 3(. 4 portant <uestions are decided b 2Q3 ma$orit of those present and #oting. (ll other matters" including the determination of whether a >uestion is important or not" are decided b simple ma$orit . Important Suestions include/ aM peace and securit bM membership cM election dM trusteeship s stem eM budget GA M"in Committee$ Most >uestions are then discussed in its siG main committees/ 1st +ommittee - Disarmament V International 'ecurit 2nd - Economic V %inancial 3rd - 'ocial" =umanitarian V +ultural 6th - 'pecial !olitical V Decoloni?ation 8th - (dministrati#e V Cudgetar 7th - Legal 'ome issues are considered onl in plenar meetings" while others are allocated to one of the siG main

committees. (ll issues are #oted on through resolutions passed in plenar meetings" usuall towards the end of the regular session" after the committees ha#e completed their consideration of them and submitted draft resolutions to the plenar (ssembl . *oting in +ommittees is b a simple ma$orit . In plenar meetings" resolutions ma be adopted b acclamation" without ob$ection or without a #ote" or the #ote ma be recorded or ta-en b roll-call. Jhile the decisions of the (ssembl ha#e no legall binding force for go#ernments" the carr the weight of world opinion" as well as the moral authorit of the world communit . The wor- of the D4 ear-round deri#es largel from the decisions of the 3eneral (ssembl - that is to sa " the will of the ma$orit of the members as eGpressed in resolutions adopted b the (ssembl . That wor- is carried out/ a. b committees and other bodies established b the (ssembl to stud and report on specific issues" such as disarmament" peace-eeping" de#elopment and human rightsH b. in international conferences called for b the (ssembl H and c. b the 'ecretariat of the D4 - the 'ecretar -3eneral and his staff of international ci#il ser#ants. @ABA@ UN Se!&rit* Co&n!i+ (n organ of the D4 primaril responsible for the maintenance of international peace and securit . Their responsibilit ma-es the '+ a -e influence in the direction of the affairs not onl of the Irgani?ation but of the entire international communit as

well. SC F&n!tion$ "n( Power$/ 1. to maintain international peace and securit in accordance with the principles and purposes of the D4H 2. to in#estigate an dispute or situation which mightlead to international frictionH 3. to recommend methods of ad$usting such disputes or the terms of settlementH 6. to formulate plans for the establishment of a s stem to regulate armamentsH 8. to determine the eGistence of a threat to the peace or act of aggression and to recommend what action should be ta-enH 7. to call on Members to appl economic sanctions and other measures not in#ol#ing the use of force to pre#ent or stop aggressionH ). to ta-e militar action against an aggressorH 9. to recommend the admission of new MembersH 5. to eGercise the trusteeship functions of the D4 in Wstrategic areasWH and 1:. to recommend to the 3eneral (ssembl the appointment of the 'ecretar -3eneral and" together with the (ssembl " to elect the 2udges of the International +ourt of 2ustice. SC Compo$ition +omposed of 18 members" 8 of which are permanent. The so-called Cig %i#e are +hina" %rance" the European Dnion" the Dnited Ningdom" and the Dnited 'tates. The other ten members are elected for 2ear terms b the 3(" 8 from the (frican and (sian states" 1 from Eastern European states" 2 from Latin (merican states" and 2 from Jestern European and other states.

Their terms ha#e been so staggered as to pro#ide for the retirement of X of them e#er ear. These members are not eligible for immediate re-election. +hairmanship of the '+ is rotated monthl on the basis of the English alphabetical order of the names of the members. SC Se$$ion$ The '+ is re>uired to function continuously and to hold itself in readiness in case of threat to or actual breach of international peace. %or this purpose" all members should be represented at all times at the seat of the Irgani?ation. SC Votin0 R&+e$ Each member of the '+ has 1 #ote" but distinction is made between the permanent and the non-permanent members in the decision of substanti#e >uestions. Yalta Votin !ormula a. 'rocedural atters 5 #otes of any of '+ members b. Su!stantive atters 5 #otes including 8 permanent #otes. 4o member" permanent or not" is allowed to #ote on >uestions concerning the pacific settlement of a dispute to which it is a part . R&+e o Gre"t#Power Un"nimit*/ a negati#e #ote b an permanent member on a non-procedural matter" often referred to as ,#eto." means re$ection of the draft resolution or proposal" e#en if it has recei#ed 5 affirmati#e #otes. - (!stention or a!sence o" a e !er is not regarded as #eto

Pro!e(&r"+ "n( S&2$t"nti'e M"tter$ Di$tin0&i$he( !rocedural matters include/ a. >uestions relating to the organi?ation and meetings of the +ouncilH b. the establishment of subsidiar organsH and c. the participation of states parties to a dispute in the discussion of the '+. 'ubstantial matters include those that ma re>uire the '+ under its responsibilit of maintaining or restoring world peace to in#o-e measures of enforcement. What is the role of a "em#er of the $N #ut not a mem#er of the Security Council% (lthough not a member of the '+" it ma participate Lwithout #oteM in the discussion of an >uestion before the +ouncil #henever the latter "eels that the interests o" that e !er are specially a""ected. 'uch member is li-ewise to be in#ited b the +ouncil to participate Lwithout #oteMin the discussion of an dispute to which the Member is a part . 4. Loo+"p"+oo1" !on(&!te( i++e0"+ in'"$ion "n( !on5&e$t "0"in$t Mooo="=") The UN Se!&rit* Co&n!i+ !"++e( or en or!ement "!tion "0"in$t Loo+"p"+oo1") Doe$ en or!ement "!tion in!+&(e $en(in0 o i0htin0 troop$6 A. 4I. +ompliance with the resolution calling for enforcement action does not necessaril call for the sending of fighting troops. There must be a special agreement with the '+ before sending of fighting troops ma be had and such agreement shall go#ern the numbers and t pes of forces" their degree of readiness and general locations" and the nature of the facilities and assistance to be supplied b D4 members.

Intern"tion"+ Co&rt o /&$ti!e The International +ourt of 2ustice is the principal $udicial organ of the Dnited 4ations. Its seat is at the !eace !alace in The =ague L4etherlandsM. It began wor- in 1567" when it replaced the !ermanent +ourt of International 2ustice which had functioned in the !eace !alace since 1522. It operates under a 'tatute largel similar to that of its predecessor" which is an integral part of the +harter of the Dnited 4ations. IC/ Compo$ition "n( 4&"+i i!"tion$ The +ourt is composed of 18 $udges elected to nine- ear terms of office b the Dnited 4ations 3eneral (ssembl and 'ecurit +ouncil sitting independentl of each other. It ma not include more than one $udge of an nationalit . Elections are held e#er three ears for one-third of the seats" and retiring $udges ma be reelected. The Members of the +ourt do not represent their go#ernments but are independent magistrates. 4UALIFICIATIONS OF /UDGES 1. The must be of high moral characterH 2. !ossess the >ualifications re>uired in their respecti#e countries for appointment to the highest $udicial office or are jurists of recogni?ed competence in international lawH and 3. (s much as possible" the must represent the main forms of ci#ili?ation and the principal legal s stems of the world. Jhen the +ourt does not include a $udge possessing the nationalit of a 'tate part to a case" that 'tate ma appoint a person to sit as a $udge ad hoc for the purpose of the case. IC/ /&ri$(i!tion The +ourt is competent to entertain a

dispute onl if the 'tates concerned ha#e accepted its $urisdiction in one or more of the following wa s/ a. b the conclusion between them of a special agreement to submit the dispute to the +ourtH b. b #irtue of a $urisdictional clause" i.e." t picall " when the are parties to a treat containing a pro#ision whereb " in the e#ent of a disagreement o#er its interpretation or application" one of them ma refer the dispute to the +ourt. 'e#eral hundred treaties or con#entions contain a clause to such effectH or c. through the reciprocal effect of declarations made b them under the 'tatute whereb each has accepted the $urisdiction of the +ourt as compulsor in the e#ent of a dispute with another 'tate ha#ing made a similar declaration. The declarations of 78 'tates are at present in force" a number of them ha#ing been made sub$ect to the eGclusion of certain categories of dispute. In cases of doubt as to whether the +ourt has $urisdiction" it is the +ourt itself which decides. Term o O i!e Term of 5 ears" staggered at three ear ear inter#als b di#iding the $udges first elected into three e>ual groups and assigning them b lotter terms of three" siG and nine ears respecti#el . Immediate re-election is allowed. The !resident and the *ice !resident elected b the +ourt for three ears" ma also be re-elected. Terms of office of 8 of the 18 members shall eGpire at the end of e#er 3 ears. <ow mem2er$ o IC/ "re !ho$en 1. 4omination made b national groups

in accordance with the =ague +on#entions of 15:). 4o group shall nominate more than four persons and not more than two of whom shall be of their own nationalit . 2. +andidates obtaining an absolute ma$orit in the 3( and '+ are considered elected. In the e#ent that more than 1 national of the same state obtain the re>uisite ma$orities in both bodies" onl the eldest is chosen. 3. In cases when membership is not completed b the regular elections" a $oint conference shall be con#ened. If this still fails" the $udges elected shall fill the remaining #acancies. IC/ Se$$ion$ The +ourt shall remain permanentl in session at the =ague or elsewhere as it ma decide" eGcept during the $udicial #acations the dates and duration of which it shall fiG. Pro!e(&re in the IC/ The procedure followed b the +ourt in contentious cases is defined in its 'tatute" and in the 0ules of +ourt adopted b it under the 'tatute. The latest #ersion of the 0ules dates from 8 December 2:::. The proceedings include a written phase" in which the parties file and eGchange pleadings" and an oral phase consisting of public hearings at which agents and counsel address the +ourt. (s the +ourt has two official languages LEnglish and %renchM e#er thing written or said in one language is translated into the other. (fter the oral proceedings the +ourt deliberates in camera and then deli#ers its $udgment at a public sitting. The $udgment is final and without appeal. 'hould one of the 'tates in#ol#ed fail to compl with it" the other part ma ha#e recourse to the 'ecurit +ouncil.

T The +ourt discharges its duties as a full court but" at the re>uest of the parties" it ma also establish a special chamber. ( +hamber of 'ummar !rocedure is elected e#er ear b the +ourt in accordance with its 'tatute. In 2ul 1553 the +ourt also established a se#en-member +hamber to deal with an en#ironmental cases falling within its $urisdiction IC/ Votin0 R&+e$ (ll >uestions before the +ourt are decided b a ma$orit of the $udges present" the >uorum being nine when it is sitting en !anc. In case of tie" the !resident or his substitute shall ha#e a casting #ote. R&+e or Inhi2ition o /&(0e$ 4o $udge ma participate in the decision of a case in which he has pre#iousl ta-en part as agent" counsel or ad#ocate for one of the parties" or as a member of a national or international court" or of a commission of in$ur " or in an other capacit . F&n!tion$ o IC/ The principal functions of the +ourt are/ 1. to decide contentious caseH and 2. to render ad#isor opinions. Who m"* i+e !ontentio&$ !"$e$6 Inl states can file contentious cases and both must agree to the courtKs $urisdiction. Inl 'tates ma appl to and appear before the +ourt. The Member 'tates of the Dnited 4ations Lat present numbering 151M are so entitled. (rticle 36L1M/ Inl states ma be parties in cases before the +ourt. 2. (rticle 37L1M/ The $urisdiction of the +ourt comprises all cases which the parties refer to it and all matters speciall pro#ided for in the +harter of the D4 or in treaties and con#entions in force.

A('i$or* Opinion$ The ad#isor procedure of the +ourt is open solel to international organi?ations. The onl bodies at present authori?ed to re>uest ad#isor opinions of the +ourt are fi#e organs of the Dnited 4ations and 17 speciali?ed agencies of the Dnited 4ations famil . In recei#ing a re>uest" the +ourt decides which 'tates and organi?ations might pro#ide useful information and gi#es them an opportunit of presenting written or oral statements. The +ourtRs ad#isor procedure is otherwise modelled on that for contentious proceedings" and the sources of applicable law are the same. In principle the +ourtRs ad#isor opinions are consultati#e in character and are therefore not binding as such on the re>uesting bodies. +ertain instruments or regulations can" howe#er" pro#ide in ad#ance that the ad#isor opinion shall be binding. &nly or ani'ations can re(uest advisory o)inions 1(rticle 78L1M;/ The +ourt ma gi#e an ad#isor opinion on an legal >uestion at the re>uest of whate#er bod ma be authori?ed b or in accordance with the +harter of the D4 to ma-e such a re>uest. *here is no rule of stare decisis.

BASES OF /URISDICTION A) Territori"+it* Prin!ip+e all persons" propert " transactions and occurrences within the territor of a 'tate are under its $urisdiction" as well as o#er certain conse>uences produced within the territor b persons acting outside it.
vests 6urisdiction in state where offense

was committed Art. 14, NCC

EDTRATERRITORIAL /URISDICTION % often claimed b 'tates with respect to so-called continuing offenses where the commission of the crime has started in one 'tate and is consummated in another. Dnder such situation" both states ha#e $urisdiction. 4. Wh"t i$ the me"nin0 or !on!ept o e=tr"territori"+it*6 789II B"r; A. The term ,eGtraterritorialit has been used to denote the status of a person or things ph sicall present on a 'tateKs territor " but wholl or partl withdrawn from the 'tateKs $urisdiction. b a rule of international law. 4ote/ The concept of eGtraterritorialit is alread obsolete. 4. Di$tin0&i$h Ee=TERritori"+it*F "n( Ee=TRAterritori"+it*)F A. e=TERritori"+it* e=TRAterritori"+it * e8ception of persons used to denote the and property from local 6urisdiction on basis of status of a person or things ph sicall international customs present on a 'tateKs territor " but wholl or partl withdrawn from the 'tateKs $urisdiction. b a rule of international law 4. <ow !"n the o2$er'"n!e o o&r +"w on n"tion"+ theor* 2e en or!e( &pon in(i'i(&"+$> "n( &pon $t"te$6 789I9 B"r; A. (ll persons within our national

territor are sub$ect to the $urisdiction of the !hilippines" with certain eGceptions li-e heads and diplomatic agents of foreign states. 'tates are re>uired under international law" specificall under (rticle II" paragraph 6 of the D4 +harter" to respect the territorial integrit of other states. (n encroachments upon our territor " for eGample" b a foreign #essel" ma be punished under our own laws" or b sanctions allowed under the generall accepted principles of international law. 4. A !rime w"$ !ommitte( in " pri'"te 'e$$e+ re0i$tere( in /"p"n 2* " Fi+ipino "0"in$t "n En0+i$hm"n whi+e the 'e$$e+ i$ "n!hore( in " port o St"te A) Where !"n he 2e trie(6 789I9 B"r; A. Dnder both the English and %rench rules" the crime will be tried b the local state (" if serious enough as to compromise the peace of its portH otherwise b the flag state" 2apan if it in#ol#es onl the members of the crew and is of such a pett nature as not to disturb the peace of the local state. B) N"tion"+it* Prin!ip+e a 'tate ma punish offenses committed b its nationals any#here in the world.
vest 6urisdiction in state of offender Art. 15, NCC; ta8 laws

C) Prote!ti'e Prin!ip+e 'tates claim eGtraterritorial criminal $urisdiction to punish crimes committed abroad which are pre$udicial to their national securit or #ital interests" e#en where the offenses are perpetrated b non-nationals.
vest 6urisdiction in state whose national interests is in6ured or national security compromised

counterfeiting% treason% espionage

4. E=p+"in the Prote!ti'e Per$on"+it* Prin!ip+e) 78998 B"r; A. !rotecti#e !ersonalit !rinciple is the principle on which the 'tate eGercise $urisdiction o#er the acts of an alien e#en if committed outside its territor " if such acts are ad#erse to the interest of the national state. D) Uni'er$"+it* Prin!ip+e ( 'tate has eGtraterritorial $urisdiction o#er all crimes regardless of where the are committed or who committed them" whether nationals or nonnationals. This is" howe#er" generall considered as forbidden.
vest 6urisdiction in state which has custody of offender of universal crimes piracy% genocide

The $urisdiction on pirac unli-e all other crimes has no territorial limits. (s it is against all" all so ma punish it. 4or does it matter that the crime was committed within the $urisdictional 3-mile limit of a foreign state for those limits" though neutral to war" are not neutral to crimes.

DOCTRINE OF SOVEREIGN IMMUNITY


Dnder this doctrine" a state en$o s immunit from the eGercise of $urisdiction b another state. The courts of one state ma not assume $urisdiction o#er another state.
E1e!2tions $ro! 3urisdiction . 9octrine of $tate ImmunityA .. 1ct of $tate 9octrine & court of one state will not sit in 6udgment over acts of government of another state done in its territory. 0. 9iplomatic ImmunityA ;. Immunity of B5 $pecialized agencies% other International 7rganizations% and its 7fficersA <. Foreign 4erchant vessels e8ercising the right of innocent passageA C. Foreign armies passing through or stationed in the territory with the permission of the $tateA !. Darships and other public vessels of another $tate operated for non-commercial purposes.

4. A Fi+ipino owne( !on$tr&!tion !omp"n* with prin!ip"+ o i!e in M"ni+" +e"$e( "n "ir!r" t re0i$tere( in En0+"n( to err* !on$tr&!tion worGer$ to the Mi((+e E"$t) Whi+e on " +i0ht to S"&(i Ar"2i" with Fi+ipino !rew pro'i(e( 2* the +e$$ee> the "ir!r" t w"$ hi0h3"!Ge( 2* (r&0 tr" i!Ger$) The hi3"!Ger$ were !"pt&re( in D"m"$e&$ "n( $ent to the Phi+ippine$ or tri"+) Do !o&rt$ o M"ni+" h"'e 3&ri$(i!tion o'er the !"$e6 789:8 B"r; A. Pes. =i$ac-ing is actuall pirac " defined in !eople #s. Lol-lo" 63 !hil 15 as robber or forcible depredation in the high seas without lawful authorit and done ani o "urandi and in the spirit and intention of uni#ersal hostilit . !irac is a crime against all man-ind. (ccordingl " it ma be punished in the competent tribunal if an countr where the offender ma be found or into which he ma be carried.

ACT OF STATE DOCTRINE 4. Wh"t i$ "n A!t o St"te6 A. (n act of state is an act done b the so#ereign power of a countr " or b its delegate" within the limits of the power #ested in him. (n act of 'tate cannot be >uestioned or made the sub$ect of legal proceedings in court of law. +ourts cannot pass $udgment on acts of 'tate done within its territorial $urisdiction. It is different from 'o#ereign Immunit from 'uit. =ere" ou cannot sue a so#ereign 'tate in the courts of another 'tate. 4. Wh*6 A. Jould undul #eG the peace of nations based on the doctrine of so#ereign e>ualit of 'tates ,'ar in pare non ha!et i periu .

4. Wh"t i$ the me"nin0 or !on!ept o EA!t o St"teF Do!trine6 789II B"r; A. The (ct of 'tate Doctrine states that e#er so#ereign state is bound to respect the independence of other states and the court of one countr will not sit in $udgment to the acts of the foreign go#ernment done within its territor . 0edress of grie#ances b reason of such acts must be obtained through the means open to be a#ailed of b so#ereign powers as between themsel#es. DIPLOMATIC IMMUNIT? T<E RIG<T OF LEGATION It is the right to send and recei#e diplomatic missions. It is strictl not a right since no 'tate can be compelled to enter into diplomatic relations with another 'tate. Diplomatic relations is established b mutual consent between two 'tates. 4. I$ the $t"te o2+i0e( to m"int"in (ip+om"ti! re+"tion$ with other $t"te$6 A. 4o" as the right of legation is purel consensual. If it wants to" a state ma shut itself from the rest of the world" as 2apan did until the close of the 15th centur . =owe#er" a polic of isolation would hinder the progress of a state since it would be den ing itself of the man benefits a#ailable from the international communit .
Acti"e right o$ legation & send diplomatic representatives Passi"e right o$ legation & receive diplomatic representatives

2) En#o s ministers and internuncios accredited to =eads of 'tateH !) Char$es d*a""aires accredited to Ministers for %oreign (ffairs.
unctions o$ Di2lo!atic 4issions . representing sending state in receiving stateA .. protecting in receiving state interests of sending state and its nationalsA 0. negotiating with government of receiving stateA ;. promoting friendly relations between sending and receiving states and developing their economic% cultural and scientific relationsA <. ascertaining by all lawful means conditions and developments in receiving state and reporting thereon to government of sending stateA and C. in some cases% representing friendly governments at their reEuest.

Dip+om"ti! Corp$ ( bod formed b all diplomatic en#o s accredited to the same 'tate. The Doyen or head of this bod is usuall the !apal 4uncio" or the oldest accredited ambassador or plenipotentiar . Pri'i+e0e$ "n( imm&nitie$ a. !ersonal in#iolabilit H b. In#iolabilit of premises and archi#esH c. 0ight of an official communicationH d. EGemption from local $urisdictionH e. EGemption from subpoena as witnessH f. EGemption from taGation 4. Who "re the &$&"+ "0ent$ o (ip+om"ti! inter!o&r$e6 (/ The diplomatic relations of a state are usuall conducted through/ i. The head of stateH ii. The foreign secretar or ministerH and iii. The members of the diplomatic ser#ice. 'ometimes the state ma appoint special diplomatic agents charged with either political or ceremonial duties" such as the negotiation of a treat or attendance at a

Re$i(ent Mi$$ion$ C+"$$e$ o he"($ o mi$$ion$ B A N E M I CC ") Ambassadors or nuncios accredited to =eads of 'tate and other heads of missions of e>ui#alent ran-H

state function li-e a coronation or a funeral.

4. <ow "re the re0&+"r (ip+om"ti! repre$ent"ti'e$ !+"$$i ie(6


A. i. (mbassadors or nuncios accredited to heads of states ii. En#o s" ministers and internuncios accredited to heads of states iii. Char$es d* a""aires accredited to ministers for foreign affairs The diplomatic corps consists of different diplomatic representati#es who ha#e been accredited to the local or recei#ing state. ( do en du corps or a dean" who is usuall the member of the highest ran- and the longest ser#ice to the state" heads it. In +atholic countries" the dean is the !apal 4uncio. 4. <ow "re (ip+om"ti! repre$ent"ti'e$ !ho$en6 A. The appointment of diplomats is not merel a matter of municipal law for the recei#ing state is not obliged to accept a representati#e who is a persona non $rata to it. Indeed" there ha#e been cases when dul accredited diplomatic representati#es ha#e been re$ected" resulting in strained relations between the sending and recei#ing state. To a#oid such aw-ward situation" most states now obser#e the practice of agreation" b means of which in>uiries are addressed to the recei#ing state regarding a proposed diplomatic representati#e of the sending state. It is onl when the recei#ing state manifests its agreement or consent that the diplomatic representati#e is appointed and formall accredited. 4. Wh"t i$ "0re"tion6

A. It is a practice of the states before appointing a particular indi#idual to be the chief of their diplomatic mission in order to a#oid possible embarrassment. It consist of two acts/ i. The In>uir " usuall informal" addressed b the sending state to the recei#ing state regarding the acceptabilit of an indi#idual to be its chief of missionH and ii. The agreement" also informal" b which the recei#ing state indicates to the sending state that such person" would be acceptable. Letter o Cre(en!e 7Letre (K Cre"n!e; The document" which the en#o recei#es from his go#ernment accrediting him to the foreign state to which he is being sent. It designates his ran- and the general ob$ect of his mission and as-s that he be recei#ed fa#orabl and that full credence be gi#en to what he sa s on behalf of his state. Letter P"tent 7Letre (K Pro'i$ion; The appointment of a consul is usuall e#idenced b a commission" -nown sometimes as letter patent or letre dK pro#ision" issued b the appointing authorit of the sending state and transmitted to the recei#ing state through diplomatic channels. F&n!tion$ o (ip+om"ti! repre$ent"ti'e$ The functions of diplomatic mission consist inter alia in/ a) 0epresenting the sending state in the recei#ing state. b) !rotecting in the recei#ing state the interests of the sending state and its nationals. c) 4egotiating with the go#ernment of the recei#ing state. d) (scertainment through lawful means of the conditions and de#elopments in

the recei#ing state and reporting thereon to the go#ernment of the sending state. e) !romoting friendl relations between the sending and recei#ing state and de#eloping their economic" cultural and scientific relations. f) In some cases" representing friendl go#ernments at their re>uest. Pointer$ on Dip+om"ti! Imm&nitie$ "n( Pri'i+e0e$ The more important are the following/ aM The person of a diplomatic agent shall be in#iolable and he shall not be liable to an form of arrest or detention. The recei#ing state shall treat him with due respect and shall ta-e all appropriate steps to pre#ent an attac- on his person" freedom or dignit . bM ( diplomatic agent shall en$o immunit from the criminal" ci#il and administrati#e $urisdiction of the recei#ing state" eGcept in certain cases as" for eGample" when the ci#il action deals with propert held b him in a pri#ate or proprietar capacit . cM The diplomatic premises shall be in#iolable" and the agents of the recei#ing state ma not enter them without the consent of the head of the mission. 'uch premises" their furnishings and other propert thereon and the means of transportation of the mission shall be immune from search" re>uisition" attachment or eGecution. L'ee mo#ie ,Re( CornerF starring 0ichard 3ereM. dM The archi#es and documents of the mission shall be in#iolable at an time and where#er the ma be. eM The recei#ing state shall permit and

protect free communication on the part of the mission for all official purposes. In communicating with the go#ernment and other missions" and consulates of the sending state where#er situated" the mission ma emplo all appropriate means" including diplomatic couriers and messages in code or cipher. The official correspondence of the mission shall be in#iolable. fM 'ub$ect to its laws and regulations concerning national securit " the recei#ing state shall insure to all members of the mission freedom of mo#ement and tra#el in its territor . gM ( diplomatic agent is not obliged to gi#e e#idence as a witness. hM ( diplomatic agent shall be eGempt from all dues and taGes" personal or real" national" regional" or municipal eGcept in certain specified cases li-e the imposition of indirect taGes. iM The mission and its head shall ha#e the right to use the flag and emblem of the sending state on the premises of the mission" including the residences of the head of the mission and on his means of transport. 4. Who m"* w"i'e the (ip+om"ti! imm&nit* "n( pri'i+e0e$6 A. The wai#er ma be made eGpressl b the sending state. It ma also be done impliedl " as when the person entitled to the immunit from $urisdiction commences litigation in the local courts and thereb opens himself to an counterclaim directl connected with the principal claim. =owe#er" wai#er of immunit from

$urisdiction with regard to ci#il and administrati#e proceedings shall not be held to mean implied wai#er of the immunit with respect to the eGecution of $udgment" for which a separate wai#er shall be necessar . D&r"tion o the (ip+om"ti! imm&nitie$ Dnless wai#ed" diplomatic immunities and pri#ileges begin from the moment diplomatic agent arri#es in the territor of the recei#ing state or" if alread there" form the moment his appointment is notified to its go#ernment" and lasts until he lea#es" which must be within a reasonable period following the termination of his mission. Jith respect to his official acts" howe#er" his immunit from the $urisdiction of the recei#ing state continues indefinitel as these are the acts attributed not to him but to the sending state. Cut this rule does not appl to his pri#ate acts" for which he ma later be sued or prosecuted should he return in a pri#ate capacit to the recei#ing state or fail to lea#e it in due time after the end of his mission. 4. Who e+$e 2e$i(e$ the he"( o the mi$$ion "re entit+e( to (ip+om"ti! imm&nitie$ "n( pri'i+e0e$6 A. The diplomatic immunities and pri#ileges are also en$o ed b the diplomatic suite or retinue" which consists of the official and non-official staff of the mission. The official staff is made up of the administrati#e and technical personnel of the mission" including those performing clerical wor-" and the member of their respecti#e families. The non-official staff is composed of the household help" such as the domestic ser#ants" butlers" and coo-s and chauffeurs emplo ed b the mission.

(s a rule" howe#er" domestic ser#ants en$o immunities and pri#ileges onl to the eGtent admitted b the recei#ing state and insofar as the are connected with the performance of their duties. Termin"tion o Dip+om"ti! Re+"tion ( diplomatic mission ma come to an end b an of the usual methods of terminating official relations li-e/ $nder "unici)al Law+ RC aM bM cM dM eM RC aM W"r - the outbrea- of war between the sending and recei#ing states terminates their diplomatic relations" which is usuall se#ered before the actual commencement of hostilitiesH bM E=tin!tion - eGtinction of either the sending state or the recei#ing state will also automaticall terminate diplomatic relations between themH :) cM Re!"++ ma be demanded b the recei#ing state when the foreign diplomat becomes a persona non $rata to it for an reason. Jhere the demand is re$ected b the sending state" the recei#ing state ma resort to the more drastic method of dismissal" b means of which the offending diplomat is summaril presented with his passport and as-ed to lea#e the countr . 4. Wi++ the termin"tion o (ip+om"ti! 0esignation (ccomplishment of the purpose Death (bolition of the office 0emo#al BRADA

$nder the ,nternational Law+ B W E

re+"tion$ "+$o termin"te !on$&+"r re+"tion$ 2etween the $en(in0 "n( re!ei'in0 $t"te$6 A. 4I. +onsuls belong to a class of state agents distinct from that of diplomatic officers. The do not represent their state in its relations with foreign states and are not intermediaries through whom matters of state are discussed between go#ernments. The loo- mainl after the commercial interest of their own state in the territor of a foreign state. The are not clothed with diplomatic character and are not accredited to the go#ernment of the countr where the eGercised their consular functionsH the deal directl with local authorities. , -in($ o Con$&+$ bM consules missi professional or career consuls who are nationals of the sending state and are re>uired to de#ote their full time to the discharge of their duties. cM consules electi ma or ma not be nationals of the sending state and perform their consular functions onl in addition to their regular callings. 4. Where (o !on$&+$ (eri'e their "&thorit*6 A. +onsuls deri#e their authorit from two principal sources" to wit" the +etter p"tent or letter -de )rovision" which is the commission issued b the sending state" and the e=e5&"tor" which is the permission gi#en them b the recei#ing state to perform their functions therein. 4. Do !on$&+$ en3o* their own imm&nitie$ "n( pri'i+e0e$6 E=p+"in) A. Pes" but not to the same eGtent as those en$o ed b the diplomats.

Li-e diplomats" consuls are entitled to the in#iolabilit of their correspondence" archi#es and other documents" freedom of mo#ement and tra#el" immunit from $urisdiction for acts performed in their official capacit and eGemption from certain taGes and customs duties. =owe#er" consuls are liable to arrest and punishment for gra#e offenses and ma be re>uired to gi#e testimon " sub$ect to certain eGceptions. The consular offices are immune onl with respect to that part where the consular wor- is being performed and the ma be eGpropriated for purposes of national defense or public utilit . 4. Di$!&$$ the (i eren!e$> i "n*> in the pri'i+e0e$ or imm&nitie$ o (ip+om"ti! en'o*$ "n( !on$&+"r o i!er$ rom the !i'i+ "n( !rimin"+ 3&ri$(i!tion o the re!ei'in0 $t"te) 7899@ B"r; A. Dnder (rticle 32 of the *ienna +on#ention of Diplomatic 0elations" a diplomatic agent shall en$o immunit from the criminal $urisdiction of the recei#ing state. =e shall also en$o immunit from its ci#il and administrati#e $urisdiction eGcept in the case of/ aM ( real action relating to pri#ate immo#able propert situated in the territor of the recei#ing state" unless he holds it on behalf of the sending state for the purpose of the missionH bM (n action relatin$ to succession in which the diplomatic agent is in#ol#ed as eGecutor" administrator" heir or legatee as pri#ate person and not on behalf of the sending stateH cM (n action relatin$ to any pro"essional

or co ercial activity eGercised b the diplomatic agent in the recei#ing state outside of his official functions. In the other hand" under (rticle 61 of the *ienna +on#ention on the +onsular 0elations" a consular officer does not en$o immunit from the criminal $urisdiction of the recei#ing state. Dnder (rticle 63 of the *ienna +on#ention on +onsular 0elations" consular officers are not amenable to the $urisdiction of the $udicial or administrati#e authorities of the recei#ing state in respect of acts performed in the eGercise of consular functions. =owe#er" this does not appl in respect of a ci#il action either/ a) (rising out of a +I4T0(+T concluded b a consular officer in which he did not enter eGpressl or impliedl as an agent of the sending state. b) C a third part for D(M(3E' arising from an accident in the recei#ing state caused b a #ehicle" #essel or aircraft. 4. E=p+"in> &$in0 e="mp+e> the me"nin0 o e.e(uator. 78998 B"r; A. ,=e-uator is an authori?ation from the recei#ing state admitting the head of a consular post to the eGercise of his functions. %or eGample" if the !hilippines appoint a consul general for 4ew Por-" he cannot start performing his functions unless the !resident of the Dnited 'tates issues an eGe>uator to him. /URISDICTIONAL ASSISTANCE E=tr"(ition The deli#er of an accused or a con#icted indi#idual to the 'tate in whose territor he is alleged to ha#e committed a crime

b the 'tate on whose territor the alleged criminal or criminal happens to be at the time. The legal dut to eGtradite a fugiti#e from $ustice is based onl on treat stipulations" which are classified under two ma$or t pes/ Prin!ip+e o Do&2+e Crimin"+it* Ine" which 'ometimes called contains a specific ,no list treat . list of offenses that a fugiti#e should The more modern ha#e committed in t pe contains no list order to be of crimes but eGtradited. pro#ides that the offenses in >uestion should be punishable in both states. It should not re>uire that the name of the crime described should be the same in both countries. It is enough that the particular act charged is a crime in both $urisdictions. 4. Wh"t i$ e=tr"(ition6 To whom (oe$ it "pp+*6 <e+(/ It is the ,process b which persons charged with or con#icted of crime against the law of a 'tate and found in a foreign 'tate are returned b the latter to the former for trial or punishment. It applies to those who are merel charged with an offense but ha#e not been brought to trialH to those who ha#e been tried and con#icted and ha#e subse>uentl escaped from custod H and those who ha#e been O+(er T*pe

con#icted in absentia. It does not appl to persons merel suspected of ha#ing committed an offense but against whom no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a ci#il $udgment.. LJeston" %al-" DR (mato" International Law and Irder" 2nd ed." p. 73: 1155:;" cited in Dissenting Ipinion" !uno" 2." in 'ecretar of 2ustice #. =on. 0alph +. Lantion" 3.0. 4o. 135678" 2an. 19" 2:::" En CancM 4. Di$!&$$ the 2"$i$ or "++owin0 e=tr"(ition) <e+(. EGtradition was first practiced b the Eg ptians" +hinese" +haldeans and (ss ro-Cab lonians but their basis for allowing eGtradition was unclear. 'ometimes" it was granted due to pactsH at other times" due to plain good will. The classical commentators on international law thus focused their earl #iews on the nature of the dut to surrender an eGtraditee --- whether the dut is legal or moral in character. 3rotius and *attel led the school of thought that international law imposed a legal dut called ci#itas maGima to eGtradite criminals. In sharp contrast" !uffendorf and Cillot led the school of thought that the so-called dut was but an Wimperfect obligation which could become enforceable onl b a contract or agreement between states. Modern nations tilted towards the #iew of !uffendorf and Cillot that under international law there is no dut to eGtradite in the absence of treat " whether bilateral or multilateral. Thus" the D' 'upreme +ourt in D' #. 0auscher L115 D' 6:)" 611" ) ' +t. 236" 237" 3: L. ed. 628 11997;M" held/ ,G G G it is onl in modern times that the nations of the earth ha#e imposed upon themsel#es the obligation of deli#ering up these fugiti#es from

$ustice to the states where their crimes were committed" for trial and punishment. This has been done generall b treaties G G G !rior to these treaties" and apart from them there was no well-defined obligation on one countr to deli#er up such fugiti#es to anotherH and though such deli#er was often made it was upon the principle of comit G G G.. LDissenting Ipinion" !uno" 2." in 'ecretar of 2ustice #. =on. 0alph +. Lantion" 3.0. 4o. 135678" 2an. 19" 2:::" En CancM 4. Wh"t i$ the n"t&re o "n e=tr"(ition pro!ee(in06 I$ it "Gin to " !rimin"+ pro!ee(in06 <e+(. 1(;n eGtradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed b the Cill of 0ights. To begin with" the process of eGtradition does not in#ol#e the determination of the guilt or innocence of an accused. =is guilt or innocence will be ad$udged in the court of the state where he will be eGtradited. =ence" as a rule" constitutional rights that are onl rele#ant to determine the guilt or innocence of an accused cannot be in#o-ed b an eGtraditee especiall b one whose eGtradition papers are still undergoing e#aluation. (s held b the D' 'upreme +ourt in Dnited 'tates #. 3alanis/ ,(n eGtradition proceeding is not a criminal prosecution" and the constitutional safeguards that accompan a criminal trial in this countr do not shield an accused from eGtradition pursuant to a #alid treat .. LJiehl" EGtradition Law at the +rossroads/ The Trend Toward EGtending 3reater +onstitutional !rocedural !rotections To %ugiti#es %ighting EGtradition from the Dnited 'tates" 15 Michigan 2ournal of International Law )25" )61 11559;" citing

Dnited 'tates #. 3alanis" 625 %. 'upp. 1218 1D. +onn. 15));M There are other differences between an eGtradition proceeding and a criminal proceeding. (n eGtradition proceeding is summar in natural while criminal proceedings in#ol#e a full-blown trial. In contradistinction to a criminal proceeding" the rules of e#idence in an eGtradition proceeding allow admission of e#idence under less stringent standards. In terms of the >uantum of e#idence to be satisfied" a criminal case re>uires proof be ond reasonable doubt for con#iction while a fugiti#e ma be ordered eGtradited ,upon showing of the eGistence of a prima facie case.. %inall " unli-e in a criminal case where $udgment becomes eGecutor upon being rendered final" in an eGtradition proceeding" our courts ma ad$udge an indi#idual eGtraditable but the !resident has the final discretion to eGtradite him. The Dnited 'tates adheres to a similar practice whereb the 'ecretar of 'tate eGercises wide discretion in balancing the e>uities of the case and the demands of the nationRs foreign relations before ma-ing the ultimate decision to eGtradite. (s an eGtradition proceeding is not criminal in character and the e#aluation stage in an eGtradition proceeding is not a-in to a preliminar in#estigation" the due process safeguards in the latter do not necessaril appl to the former. This we hold for the procedural due process re>uired b a gi#en set of circumstances ,must begin with a determination of the precise nature of the go#ernment function in#ol#ed as well as the pri#ate interest that has been affected b go#ernmental action.. The concept of due process is fleGible for ,not all situations calling for procedural safeguards call for the same -ind of procedure.. L'ecretar of 2ustice

#. =on. 0alph +. Lantion" 3.0. 4o. 135678" Ict. 1)" 2:::" En Canc 1!uno;M 4. Wi++ the retro"!ti'e "pp+i!"tion o "n e=tr"(ition tre"t* 'io+"te the !on$tit&tion"+ prohi2ition "0"in$t Me= po$t "!toM +"w$6 <e+(. The prohibition against eG post facto law applies onl to criminal legislation which affects the substantial rights of the accused. This being so" there is no merit in the contention that the ruling sustaining an eGtradition treat Ks retroacti#e application #iolates the constitutional prohibition against eG post facto laws. The treat is neither a piece of criminal legislation nor a criminal procedural statute. LJright #. +(" 238 '+0( 361" (ug. 18" 1556 1Napunan;M 4. Di$!&$$ the r&+e$ in the interpret"tion o e=tr"(ition tre"tie$) <e+(. 1(;ll treaties" including the 0!-D' EGtradition Treat " should be interpreted in light of their intent. 4othing less than the *ienna +on#ention on the Law of Treaties to which the !hilippines is a signator pro#ides that ,a treat shall be interpreted in good faith in accordance with the ordinar meaning to be gi#en to the terms of the treat in their conteGt and in light of its ob$ect and purpose.. F G G. It cannot be gainsaid that toda " countries li-e the !hilippines forge eGtradition treaties to arrest the dramatic rise of international and transnational crimes li-e terrorism and drug traffic-ing. EGtradition treaties pro#ide the assurance that the punishment of these crimes will not be frustrated b the frontiers of territorial so#ereignt . Implicit in the treaties should be the unbending commitment that the perpetrators of these crimes will not be coddled b an signator state.

It ought to follow that the 0!-D' EGtradition Treat calls for an interpretation that will minimi?e if not pre#ent the escape of eGtraditees from the long arm of the law and eGpedite their trial. F G G 1(;n e>uall compelling factor to consider is the understanding of the parties themsel#es to the 0!-D' EGtradition Treat as well as the general interpretation of the issue in >uestion b other countries with similar treaties with the !hilippines. The rule is recogni?ed that while courts ha#e the power to interpret treaties" the meaning gi#en them b the departments of go#ernment particularl charged with their negotiation and enforcement is accorded great weight. The reason for the rule is laid down in 'antos III #. 4orthwest Irient (irlines" et al. L21: '+0( 287" 271 11552;M" where we stressed that a treat is a $oint eGecuti#elegislati#e act which en$o s the presumption that ,it was first carefull studied and determined to be constitutional before it was adopted and gi#en the force of law in the countr .. L'ecretar of 2ustice #. =on. 0alph +. Lantion" 3.0. 4o. 135678" Ict. 1)" 2:::" En Canc 1!uno;M 4. Wh"t i$ the (i eren!e> i "n*> 2etween e=tr"(ition "n( (eport"tion6 7899@ B"r; A. BASIS Nature EDTRADITI ON 4ormall committed with criminal offenses in the territor of the re>uesting DEPORTATI ON E#en if no crime was committed as long as the alien is eGtraditable

state %ene"it Effected for the benefit of the state to which the person being eGtradited will be surrendered because he is a fugiti#e criminal in that state Effected on the basis of an eGtradition treat or upon the re>uest of another state The alien will be surrendered to the state as-ing for his eGtradition Effected for the protection of the state eGpelling an alien because his presence is inimical to public good

2o#>

The unilateral act of the state eGpelling the alien

9here>

The undesirable alien ma be sent to an state willing to accept him


)o"erning

unda!ental E1tradition.

Princi2les

a) There is no legal obligation to surrender a fugiti#e unless there is a treat . b) 0eligious and political offenses are generall not eGtraditable. c) ( person eGtradited can be prosecuted b the re>uesting state onl for the crime for which he was eGtraditedH and d) Dnless pro#ided for in a treat " the crime for which a person is eGtradited must ha#e been committed in the territor of the re>uesting state. E=tr"(ition o W"r Crimin"+$ "n( Terrori$t$ 7Vio+"tor$ o !rime$ "0"in$t

intern"tion"+ +"w; (s #iolators of crimes against international law" war criminals are sub$ect to eGtradition in 1567" the D4 3eneral (ssembl passed a resolution recommending to members and calling upon all non-members to eGtradite war criminals" including traitors. Attent"t C+"&$e ( pro#ision in an eGtradition treat that stipulates that the murder of the head of a foreign go#ernment or the member of his famil should not be considered as a political offense.

e=tradition as the ajor e""ective instru ent o" international co-operation in the suppression o" cri eA. 4t is the only re$ular syste hat has !een devised to return "u$itives to the jurisdiction o" a court co petent to try the in accordance #ith unicipal and international la#. The Re5&e$tin0 St"te Wi++ A!!or( D&e Pro!e$$ to the A!!&$e() SECOND" an eGtradition treat presupposes that both parties thereto ha#e eGamined and that both accept and trust each otherKs legal s stem and $udicial process. More pointedl " our dul authori?ed representati#eKs signature on an eGtradition treat signifies our confidence in the capacit and the willingness of the other state to protect the basic rights of the person sought to be eGtradited. That signature signifies our full faith that the accused will be gi#en" upon eGtradition to the re>uesting state" all rele#ant and basic rights in the criminal proceedings that will ta-e place thereinH otherwise" the treat would not ha#e been signed" or would ha#e been directl attac-ed for its unconstitutionalit . The Pro!ee(in0$ Are Sui /eneris) T<IRD" as pointed out in 'ecretar of 2ustice #s. Lantion" eGtradition proceedings are not criminal in nature. In criminal proceedings" the constitutional rights of the accused are at foreH in eGtradition" which is sui $eneris - in a class b itself the are not. 3i#en the foregoing" it is e#ident that the eGtradition court is not called upon to ascertain the guilt or the innocence of the person sought to be eGtradited. 'uch determination during the eGtradition

Doctrine of Reciprocity
If the re>uesting state is shown to be willing to surrender its own nationals for trial b the courts of another countr " the detaining state must also surrender its own citi?ens for trial. @ POSTULATES OF EDTRADITION E=tr"(ition I$ " M"3or In$tr&ment or the S&ppre$$ion o Crime) FIRST" eGtradition treaties are entered into for the purpose of suppressing crime b facilitating the arrest and the custodial transfer of a fugiti#e from one state to the other. Jith the ad#ent of easier and faster means of international tra#el" the flight of affluent +riminals from one countr to another for the purpose of committing crime and e#ading prosecution ha#e become more fre>uent. (ccordingl " go#ernments are ad$usting their methods of dealing with criminals and crimes that transcend international boundaries. Today, ?a ajority o" nations in the #orld co unity have co e to loo@ upon

proceedings will onl result in needless duplication and dela . EGtradition is merel a measure of international $udicial assistance through which a person charged with or con#icted of a crime is restored to a $urisdiction with the best claim to tr that person. It is not part of the function of the assisting authorities to enter into >uestions" which are the prerogati#e of that $urisdiction. The ultimate purpose of eGtradition proceedings in court is onl to determine whether the eGtradition re>uest complies with the EGtradition Treat " and whether the person sought is eGtraditable. Comp+i"n!e Sh"++ Be in Goo( F"ith)
OURT(% our e8ecutive branch of government voluntarily entered into the 28tradition Freaty% and our legislative branch ratified it. *ence% the Freaty carries the presumption that its implementation will serve the national interest.

of the accused on the issue of the proper warrant" and the other go#ernment is under obligation to ma-e the surrender.. (ccordingl " the !hilippines must be read and in a position to deli#er the accused" should it be found proper. There I$ "n Un(er+*in0 Ri$G o F+i0ht FIFT<" persons to be eGtradited are presumed to be flight ris-s. This prima facie presumption finds reinforcement in the eGperience of the eGecuti#e branch nothing short of confinement can ensure that the accused will not flee the $urisdiction of the re>uested state in order to thwart their eGtradition to the re>uesting state. The present eGtradition case further #alidates the premise that persons sought to be eGtradited ha#e a propensit to flee. Indeed" eGtradition hearings would not e#en begin" if onl the accused were willing to submit to trial in the re>uesting countr . !rior acts of herein respondent/ aM Lea#ing the re>uesting state right before the conclusion of his indictment proceedings thereH and bM 0emaining in the re>uested state despite learning that the re>uesting state is see-ing his return and that the crimes he is charged with are bailable - elo>uentl spea- of his a#ersion to the processes in the re>uesting state" as well as his predisposition to a#oid them at all cost. These circumstances point to an e#erpresent" underl ing high ris- of flight. =e has demonstrated that he has the capacit and the will to flee. =a#ing fled once" what is there to stop him" gi#en sufficient opportunit " from fleeing a second timeY 4. I$ the re$pon(ent in e=tr"(ition

%ulfilling our obligations under the EGtradition Treat promotes comit with the re>uesting state. In the other hand" failure to fulfill our obligations thereunder paints a bad image of our countr before the world communit . 'uch failure would discourage other states from entering into treaties with us" particularl an eGtradition treat that hinges on reciprocit . *eril " we are bound b pacta sunt servanda to compl in good faith with our obligations under the Treat . This principle re>uires that we deli#er the accused to the re>uesting countr if the conditions precedent to eGtradition" as set forth in the Treat " is satisfied. In other words" the demanding go#ernment" where it has done all that the treat and the law re>uire it to do" is entitled to the deli#er

pro!ee(in0 entit+e( to noti!e "n( he"rin0 2e ore the i$$&"n!e o " w"rr"nt o "rre$t6 A. Coth parties cite section 7 of !D 1:75 in support of their arguments. It states/ ,'E+. 7. Issuance of 'ummonsH Temporar (rrest" =earing" 'er#ice of 4otices L1M Immediatel upon receipt of the petition" the presiding $udge of the court shall" as soon as practicable" summon the accused to appear and to answer the petition on the da and hour fiGed in the order. =e ma issue a warrant for the immediate arrest of the accused which ma be ser#ed an where within the !hilippines if it appears to the presiding $udge that the immediate arrest and temporar detention of the accused will best ser#e the ends of $ustice. Dpon receipt of the answer" or should the accused after ha#ing recei#ed the summons fail to answer within the time fiGed" the presiding $udge shall hear the case or set another date for the hearing thereof. L2M The order and notice as well as a cop of the warrant of arrest" if issued" shall be promptl ser#ed each upon the accused and the attorne ha#ing charge of the case..
+oes this provision sanction )TC &ud$e 'ur$anan*s act o" i ediately settin$ "or hearin$ the issuance o" a #arrant o" arrest> 9e rule in the ne$ativeB

=earing entails sending notices to the opposing parties" recei#ing facts and arguments from them" and gi#ing them time to prepare and present such facts and arguments. (rrest subse>uent to a hearing can no longer be considered ,immediate.. The law could not ha#e intended the word as a mere superfluit but on the whole as a means of imparting a sense of urgenc and swiftness in the determination of whether a warrant of arrest should be issued. C using the phrase ,if it appears". the law further con#e s that accurac is not as important as speed at such earl stage. The trial court is not eGpected to ma-e an eGhausti#e determination to ferret out the true and actual situation" immediatel upon the filling of the petition. %rom the -nowledge and the material then a#ailable to it" the court is eGpected merel to get a good first impression - a prima facie finding - sufficient to ma-e a speed initial determination as regards the arrest and detention of the accused. Je stress that the prima facie eGistence of probable cause for hearing the petition and" a priori" for issuing an arrest warrant was alread e#ident from the petition itself and its supporting documents. =ence" after ha#ing alread determined therefrom that a prima facie finding did not eGist" respondent $udge gra#el abused his discretion when he set the matter for hearing upon motion of 2imene?. Moreo#er" the law specifies that the court se a hearing upon receipt of the answer or upon failure of the accused to answer after recei#ing the summons. In connection with the matter of immediate arrest" howe#er" the word ,hearing. is notabl absent from the pro#ision. E#identl " had the holding of a hearing at that stage been intended" the law could ha#e easil so

A) On the B"$i$ o the E=tr"(ition +"w It is significant to note that 'ection 7 of !D 1:75" our EGtradition Law" uses the word ,immediate. to >ualif the arrest of the accused. This ,>ualification would be rendered nugator b setting for hearing the issuance of the arrest warrant.

pro#ided. It also bears emphasi?ing at this point that eGtradition proceedings are summar in nature. =ence" the silence of the Law and the Treat leans to the more reasonable interpretation that there is no intention to punctuate with a hearing e#er little step in the entire proceedings. *eril " as argued b petitioner" sending to persons sought to be eGtradited a notice of the re>uest for their arrest and setting it for hearing at some future date would gi#e them ample opportunit to prepare and eGecute an escape. 4either the Treat nor the Law could ha#e intended that conse>uence" for the #er purpose of both would ha#e been defeated b the escape of the accused from the re>uested state.

+onstitution itself re>uires onl the eGamination - under oath or affirmation of complainants and the witnesses the ma produce. There is no re>uirement to notif and hear the accused before the issuance of warrants of arrest. In 2o vs. 'eople and in all the cases cited therein" ne#er was a $udge re>uired to go to the eGtent of conducting a hearing $ust for the purpose of personall determining probable cause for the issuance of a warrant of arrest. (ll we re>uired was that the ,$udge must ha#e sufficient supporting documents upon which to ma-e his independent $udgment" or at the #er least" upon which to #erif the findings of the prosecutor as to the eGistence of probable cause.. In 9e!! vs. +e Leon" the +ourt categoricall stated that a $udge was not supposed to conduct a hearing before issuing a warrant of arrest/ ,(gain" we stress that before issuing warrants of arrest" $udges merel determine personall the probabilit " not the certaint of guilt of an accused. In doing so" $udges do not conduct a de novo hearing to determine the eGistence of probable cause. The $ust personall re#iew the initial determination of the prosecutor finding a probable cause to see if it is supported b substantial e#idence.. (t most" in cases of clear insufficienc of e#idence on record" $udges merel further eGamine complainants and their witnesses. In the present case #alidating the act of respondent $udge and instituting the practice of hearing the accused and his witnesses at this earl stage would be discordant with the rationale for the entire

B) On the B"$i$ o the Con$tit&tion E#en 'ection 2 of (rticle III of our +onstitution" which is in#o-ed b 2imene?" does not re>uire a notice or a hearing before the issuance of a warrant of arrest. It pro#ides/ ,'ec. 2 - The right of the people to be secure in their persons" houses" papers" and effects against unreasonable searches and sei?ures and sei?ures of whate#er nature and for an purpose shall be in#iolable" and no search warrant or warrant of arrest shall issue eGcept upon probable cause to be determined personall b the $udge after eGamination under oath or affirmation of the complainant and the witnesses he ma produce" and particularl describing the place to be searched and the persons or things to be sei?ed.. To determine probable cause for the issuance of arrest warrants" the

s stem. If the accused were allowed to be heard and necessaril to present e#idence during the prima facie determination for the issuance of a warrant of arrest" what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie findingY 'uch a procedure could con#ert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibl ma-e trial of the main case superfluous. This scenario is also anathema to the summar nature of eGtraditions. That the case under consideration is an eGtradition and not a criminal action is not sufficient to $ustif the adoption of a set of procedures more protecti#e of the accused. If a different procedure were called for at all" a more restricti#e one not the opposite would be $ustified in #iew of respondentKs demonstrated predisposition to flee. 4. Wh"t "re the e=!eption$ to the ENo B"i+F R&+e in E=tr"(ition Pro!ee(in0$6 A. The rule" we repeat" is that bail is not a matter of right in eGtradition cases. =owe#er" the $udiciar has the constitutional dut to curb gra#e abuse of discretion and t rann " as well as the power to promulgate rules to protect and enforce constitutional rights. %urthermore" we belie#e that the right to due process is broad enough to include the grant of basic fairness to eGtraditees. Indeed" the right to due process eGtends to the ,life" libert or propert . of e#er person. It is ,d namic and resilient" adaptable to e#er situation calling for its application.. (ccordingl and to best ser#e the ends of $ustice" we belie#e and so hold that" after a potential eGtraditee has been arrested or

placed under the custod of the law" bail ma be applied for and granted as an eGception" onl upon a clear and con#incing showing of the following/ 1M That" once granted bail" the applicant will not be a flight ris- or a danger to the communit H and 2M That there eGist special" humanitarian and compelling circumstances including" as a matter of reciprocit " those cited b the highest court in the re>uesting state when it grants pro#isional libert in eGtradition case therein. 3M That" the eGtraditee will abide with all the orders and processes of the eGtradition court. 'ince this eGception has no eGpress or specific statutor basis" and since it is deri#ed essentiall from general principles of $ustice and fairness" the applicant bears the burden of pro#ing the abo#e twotiered re>uirement with clarit H precision and emphatic forcefulness. The +ourt reali?es that eGtradition is basicall an eGecuti#eH not a $udicial" responsibilit arising from the presidential power to conduct foreign relations. In its barest concept" it parta-es of the nature of police assistance amongst states" which is not normall a $udicial prerogati#e. =ence" an intrusion b the courts into the eGercise of this power should be characteri?ed b caution" so that the #ital international and bilateral interests of our countr will not be unreasonabl impeded or compromised. In short" while this +ourt is e#er protecti#e of ,the sporting idea of fair pla ". it also recogni?es the limits of its own prerogati#es and the need to fulfill international obligations. Di$!&$$ the Ten Point$ in E=tr"(ition pro!ee(in0$)

1M The ultimate purpose of eGtradition proceedings is to determine whether the re>uest eGpressed in the petition" supported b its anneGes and the e#idence that ma be adduced during the hearing of the petition" complies with the EGtradition Treat and Law and whether the person sought is eGtraditable. The proceedings are intended merel to assist the re>uesting state in bringing the accused -or the fugiti#e who has illegall escaped -- bac- to its territor " so that the criminal process ma proceed therein. 2M C entering into an eGtradition treat " the !hilippines is deemed to ha#e reposed its trust in the reliabilit or soundness of the legal and $udicial s stem of its treat partner" as well as in the abilit and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. 3M B* n"t&re then> e=tr"(ition pro!ee(in0$ "re not e5&i'"+ent to " !rimin"+ !"$e in whi!h guilt or innocence is determined. +onse>uentl " an eGtradition case is not one in which the constitutional rights of the accused are necessaril a#ailable. It is more a-in" if at all" to a courtKs re>uest to police authorities for the arrest of the accused who is at large or has escaped detention or $umped bail. =a#ing once escaped the $urisdiction of the re>uesting state" the reasonable pri a "acie presumption is that the person would escape again if gi#en the opportunit . 6M Imme(i"te+* &pon re!eipt o the petition or e=tr"(ition "n( it$ $&pportin0 (o!&ment$> the $udge shall ma-e a pri a "acie finding whether the petition is sufficient in form and in substance" whether it complies with the

EGtradition Treat and the Law" and whether the person sought is eGtraditable. The magistrate has discretion to re>uire the petitioner to submit further documentation" or to personall eGamine the affiants or witnesses. If con#inced that a prima facie case eGists" the $udge immediatel issues a warrant for the arrest of the potential eGtraditee and summons him or her to answer and to appear at scheduled hearing on the petition. 8M (fter being ta-en into custod " potential eGtraditees ma appl for bail. 'ince the applicants ha#e a histor of absconding" the ha#e the burden of showing that LaM their is no flight ris- and no danger to the communit H and LbM there eGist a special" humanitarian or compelling circumstances. The grounds used b the highest court in the re>uesting state for the grant of bail therein ma be considered" under the principle of reciprocit as a special circumstance. In eGtradition cases" bail is not a matter of rightH it is sub$ect to $udicial discretion in the conteGt of the peculiar facts of each case.
C@ 'otential e8traditees are entitled to the rights to due process and to fundamental fairness. 9ue process does not always call for a prior opportunity to be heard. 1 subseEuent opportunity to be heard is sufficient due process to the flight risk involved. Indeed% available during the hearings on the petition and the answer is the full chance to be heard and to en6oy fundamental fairness that is compatible with the summary nature of e8tradition. !@ Fhis /ourt will always remain a protector of human rights% a bastion of liberty% a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-eEual and

co-independent organs of government. "@ De realize that e8tradition is essentially an e8ecutive% not a 6udicial% responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Fhus% the 28ecutive 9epartment of government has broad discretion in its duty and power of implementation. #@ 7n the other hand% courts merely perform oversight functions and e8ercise review authority to prevent the e8ercise of grave abuse and tyranny. Fhey should not allow contortions% delays and overdue process every little step of the way% lest these summary e8tradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partnerGs simple reEuest to return a fugitive. Dorse our country should not be converted into a dubious haven where fugitives and escapes can unreasonably delay% mummify% mock% frustrate% checkmate and defeat the Euest for bilateral 6ustice and international cooperation. H@ 1t the bottom% e8tradition proceedings should be conducted with all deliberate speed to determine compliance with the 28tradition Freaty and the (awA and while safeguarding basic individual rights% to avoid the legalistic contortions% delays and technicalities that may negate that purpose. The Right o$ As+lu! 2very foreign $tate can be at least a provisional asylum for any individual% who% being persecuted in his home $tate% goes to another $tate. In the absence of any international treaty stipulating the contrary% no state is% by international laws% obliged to refuse admission into its territory to such a fugitive or in case he has been admitted% to e8pel him or deliver him up to the prosecuting state. Fhe right of asylum is not a right possessed by an alien to demand that a state protect him and grant him asylum. 1t present% it is 6ust a privilege granted by a state to allow an

alien escaping from the persecution of his country for political reasons to remain and to grant him asylum. /. E12lain the right o$ as+lu! in international law5 6Bar7 A. Fhe right of asylum is the competence of every state inferred from its territorial supremacy to allow a prosecuted alien to enter and to remain on its territory under its protection and thereby grant asylum to him. As+lu! and Re$ugees 1 refugee is any person who is outside the country of his nationality or the country of his former habitual residence because he has or had well founded fear of persecution by reason of his race% religion% nationality or political opinion and is unable or% because of such fear% is unwilling to avail himself of the protection of the government of the country of his nationality% or% if he has no nationality% to return to the country of his former habitual residence. ' Essential Ele!ents to be considered a Re$ugee. 1) Fhe person is outside the country of his nationality% or in the case of stateless persons% outside the country of habitual residenceA 2) Fhe person lacks national protectionA 3) Fhe person fears persecution in his own country. Fhe second element makes% a refugee a stateless person. Because a refugee appro8imates a stateless person% he can be compared to a vessel on the open sea not sailing under the flag of any state% or be called flotsam and res nullius. 7nly a person who is granted asylum by another state can apply for refugee statusA thus the refugee treaties imply the principle of asylum. Q: Sandovals Open Question No. 1

,s a refu ee is included in the term stateless )erson or is it the other way around% Su$$ested (ns#er/ (nal ?e the elements before one could be considered a refugee.

Non8Re$oul!ent Princi2le 5on-refoulment non-contracting state e8pel or return ?refouler@ a refugee% in any manner whatsoever% to the frontiers of territories where his life or freedom would be threatened. ?1rticle 00 of the /onvention :elating to the $tatus of :efugees@ Fhe 'rinciple of the non-refoulment was declared to be a generally accepted principle by the /onvention relating to the status of stateless persons. Nationalit+ "5 Citi9enshi2 5ationality is the membership in a political community with all its concomitant rights and obligations. It is the tie that binds an individual to his state% from which he can claim protection from the laws% which he is also obliged to follow. /itizenship has a more e8clusive meaning in that it applies only to certain members of the state accorded more privileges than the rest of the people who owe it allegiance. Its significance is municipal and not international. Nationalit+ is I!2ortant in Int:l Law It is important because an individual can ordinarily participate in international relations only through the instrumentality of the state to which he belongs% as when his government asserts a claim on his behalf for in6uries suffered by him in foreign 6urisdiction. Fhis remedy would not be available to a stateless person who will have no state with international personality to intercede for him under the laws of nations. 28ample% in the case of *oly $ee vs. :osario% the defendant in this case can invoke his rights against the *oly $ee not under the 4unicipal (aw but under International (aw through his government% which will espouse his cause of action in his behalf. If this happens% his concern ceases to be a private one but becomes one for the public% that is% for the state. DOCTRINE O E ECTI;E NATIONALIT< Dithin a third state% a person having more than one nationality shall be treated as if he

had only one. Bnder the principle of effective nationality% the third state shall recognized conclusively in its territory either the nationality of the country in which he is habitually and principally present or the nationality of the country with which he appears to be in fact most closely connected. %tatelessness $tatelessness is the condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acEuiring another. 1n e8ample of the first case would be that of an individual born in a state where only the jus sanguinis is recognized to parents whose state observes only jus soli. Fhe second case may be illustrated by an individual who% after renouncing his original nationality in order to be naturalized in another state% is subseEuently denaturalized and thereafter denied repatriation by his former country. /. Who are stateless 2ersons under International Law, 6=>>0 Bar7 A. Fhey are those who are not considered as national by any state under the operation of its laws. /. What are the conse?uences o$ statelessness, 6=>>0 Bar7 A. Fhese areI i. 5o state can intervene or complain in behalf of the stateless person for an international delinEuency committed by another state in inflicting in6ury upon himA ii. *e cannot be e8pelled by the state if he is lawfully in its territory e8cept on grounds of national security or public orderA iii. *e cannot avail himself of the protection and benefits of citizenship like securing for himself a passport or visa and personal documents. /. Is a stateless 2erson entirel+ without right@ 2rotection or recourse under the Law o$ Nations, E12lain5 6=>>0 Bar7 A. 5o. Bnder the /onvention in :elation to the $tatus of $tateless 'ersons% the /ontracting $tates agree to accord the stateless persons within their territories treatment at least as favorable as that accorded their nationals with respect toA

a) Freedom of religionA b) 1ccess to the courtsA c) :ationing of products in short supplyA d) 2lementary educationA e) 'ublic relief and assistanceA f) (abor legislationA and g) $ocial $ecurity Fhey also agree to accord them treatment not less favorable than that accorded to aliens generally in the same circumstances. Fhe /onvention also provides for the issuance of identity papers and travel documents to the stateless persons. /. What !easures@ i$ an+@ has International Law taAen to 2re"ent statelessness, 6=>>0 Bar7 A. In the /onvention on the /onflict of 5ationality (aws of #0H% the /ontracting $tates agree to accord nationality to persons born in their territory who would otherwise be stateless. Fhe convention on the :eduction of $tatelessness of #C provides that if the law of the /ontracting $tates results in the loss of nationality% as a conseEuence of marriage or termination of marriage% such loss must be conditional upon possession or acEuisition of another nationality.

international agreement" some of which are/ act" protocol" agreement" compromis dR arbitrage" concordat" con#ention" declaration" eGchange of notes" pact" statute" charter and modus #i#endi. (ll writers" from =ugo 3rotius onward" ha#e pointed out that the names or titles of international agreements included under the general term treat ha#e little or no significance. +ertain terms are useful" but the furnish little more than mere description Protocol de Cl0ture ( final act" sometimes called protocol de cloture is an instrument which records the winding up of the proceedings of a diplomatic conference and usuall includes a reproduction of the teGts of treaties" con#entions" recommendations and other acts agreed upon and signed b the plenipotentiaries attending the conference. 4t is not the treaty itsel". It is rather a summar of the proceedings of a protracted conference which ma ha#e ta-en place o#er se#eral ears. 4. Wh"t i$ " Mproto!o+ (e !+ot&reM6 Wi++ it re5&ire !on!&rren!e 2* the Sen"te6 <e+(. ( final act" sometimes called protocol de cloture" is an instrument which records the winding up of the proceedings of a diplomatic conference and usuall includes a reproduction of the teGts of treaties" con#entions" recommendations and other acts agreed upon and signed b the plenipotentiaries attending the conference. It is not the treat itself. It is rather a summar of the proceedings of a protracted conference which ma ha#e ta-en place o#er se#eral ears. It will not re>uire the concurrence of the 'enate. The documents contained therein are deemed adopted without need for ratification. LTanada #. (ngara" 2)2 '+0( 19" Ma 2" 155) 1!anganiban;M

The L"w on Intern"tion"+ O2+i0"tion$ So&r!e$. 1M Intern"tion"+ "0reement$ e.g. treaties concluded between 'tates 2M C&$tom"r* intern"tion"+ +"w e.g. the doctrine of re!us sic stanti!us A) T<E LAW OF TREATIES Tre"t* De ine( 4. Wh"t i$ " Tre"t*6 Di$!&$$) <e+(. ( treat " as defined b the *ienna +on#ention on the Law of Treaties" is ,an international instrument concluded between 'tates in written form and go#erned b international law" whether embodied in a single instrument or in two or more related instruments" and whate#er its particular designation.. There are man other terms used for a treat or

Tre"t* "$ m"in in$tr&ment ,The treat is the ain instru ent with which the societ of 'tates is e>uipped for the purpose of carr ing out its multifarious transactions.. LI0D Mc4(I0 S*non*mo&$ wor($ aM +on#ention bM !act cM !rotocol dM (greement eM (rrangement fM (ccord gM %inal (ct hM 3eneral (ct iM EGchange of 4otes The use of particular terminolog has no legal significance in international law. M"tter$ &$&"++* (e"+t with 2* tre"tie$. aM lease of na#al bases bM the sale or cession of territor cM the regulation of conduct of hostilities dM the termination of war eM the formation of alliances fM the regulation of commercial relations gM the settling of claims hM the establishment of international organi?ations , -in($ o Tre"tie$ aM traites-lois law ma-ing treaties bM traits-contrats contract treaties 89N9 Con'ention on the L"w o Tre"tie$ (dopted b the +onference of the Law of Treaties L*ienna +on#entionM. Entered into force on 2anuar 2)" 157:.

PARTIES R&+e. Inl 'tates ma enter into treaties or international agreements. (greements between 'tate and indi#iduals or entities other than 'tates DI 4IT come within the categor of treaties. E=!eption$. 'tates ma enter into treaties or international agreements with/ aM International Irgani?ations bM Celligerent 'tates A E$$enti"+$ o V"+i(it* 8; Ca)acity o p"rtie$ R&+e. E#er 'tate possesses capacit to conclude treaties as an attribute of its so#ereignt . E=!eption$. aM Jhen it limits itselfH or bM Jhen it is limited b some other international arrangements respecting some matters. 2M Com)etence o p"rti!&+"r or0"n$ !on!+&(in0 the tre"t* R&+e. The municipal law of the 'tate concerned shall determine what organ ma conclude a treat . (s a rule" it is the =ead of 'tate who possesses the treat -ma-ing power to be concurred in b the legislati#e branch. E=!eption$. aM Jhen it is in estoppel bM Jhen it has performed acts #alidating or curing the defects in competence. cM Jhen it has recei#ed benefits or has eGercised its rights under the sub$ect treat without eGpressl reser#ing its non-liabilit or without interposing other #alid reasons

for recei#ing or eGercising it. 3; Re"+it* o Consent R&+e. The plenipotentiaries of 'tates or the 'tate itself must possess the capacit to consent which consent is gi#en in a manner that is #oluntar and free from fear" force" coercion" intimidation" or corruption. E=!eption$. aM 0atification wai#ing the right to withdraw from the treat and declaring its consent thereon as #alid. bM Estoppel - eGercising its rights and respecting the obligations in the treat notwithstanding -nowledge of facts that #itiate its consent and eGercises them without protest. cM !rescription filing of protest after the lapse of allowable period within which the same ma be entertained. Thus" the 'tate is deemed to ha#e ratified its consent. Reme(*. Jhere the consent of a part has been gi#en in error or induced through fraud on the part of the other part " the treat would be *IID(CLE. Thus" the erring 'tate must as soon as possible or within the time gi#en in the treat " withdraw or correct its consent. Con$ent <ow Gi'en aM through a signature bM eGchange of instruments cM ratification dM acceptance eM appro#al or accessionH or fM b other means so agreed. A; Le0"+it* o &#1ect R&+e. Immoralit " illegalit or impossibilit of purpose or obligations ma-es a treat null and #oid. e.$. a treat b which a 'tate agrees with another to appropriate a portion of the high seas. E=!eption$. aM If the immoralit " illegalit or impossibilit does not run counter to a universally reco$ni.ed pere ptory nor o" international la# but onl against a remote and minor norm. bM If it does not contra#ene or depart from an absolute or imperati#e rule or prohibition of international law. e.g. jus dispositivu . PEREMPTOR? NORM ( norm generall accepted b the international communit of 'tates as a whole as a norm from which no derogation is permitted and which can be modified onl b a subse>uent norm of general international law ha#ing the same character. e.$. jus co$ens 4. E=p+"in> &$in0 e="mp+e> 1us co ens in intern"tion"+ +"w) 78998 B"r; A. &us co$ens is a peremptor norm of general international law accepted and recogni?ed b the international communit as a whole. e.$. the prohibition against the use of force in dealing with 'tates. INCOMPATIBILIT? v) INCONSISTENC? Inconsistenc raises the problem of conflict of obligations. Incompatibilit " on the other hand" raises the >uestion of

nullit . e.$. (rt. 1:3 of the D4 +harter pro#ides that in the e#ent of conflict between the obligations of the Members under the D4 +harter and their obligations under an international agreement" their obligations under the D4 +harter shall pre#ail. E e!t o Form on V"+i(it* There is no rule that treaties should be in written form. Iral treaties are 4IT prohibited. =owe#er" orall agreed treaties are a rarit . 4ote/ The *ienna +on#ention" howe#er" defines a ,treat . as ,an international agreement concluded between 'tates in written form and go#erned b international law" whether embodied in a singe instrument or in two or more related instruments and whate#er its particular designation LisM.. PROCESS OF TREAT?#MA-ING U$&"+ Step$ T"Gen 1M 4egotiation of parties 2M 'ignature of the agreed teGt 3M 0atification or accession made b the treat -ma-ing organs of 'tates concerned 6M EGchange or deposit of the instruments of ratification or accession. (t present" treaties are prepared and adopted b means of international diplomatic conferences. (lso" a large number of multilateral con#entions ha#e been adopted b international organi?ations such as the 3eneral (ssemble of the D4. Prin!ip+e o A+tern"t (ccording to this principle" the order of the naming of the parties" and of the signatures of the plenipotentiaries is

#aried so that each part is named and its plenipotentiar signs first in the co of the instrument to be -ept b it. =owe#er" with respect to treaties with man parties" the practice is usuall to arrange the names alpha!etically in English or in ;rench. Si0ni i!"n!e o Si0n"t&re R&+e. The act of signature has little le$al si$ni"icance eGcept as a means of authenticating the teGt of the treat . It is the act of rati"ication that is re>uired to ma-e a treat binding. E=!eption$. aM the treat pro#ides that signature shall ha#e such effectH bM it is otherwise established that the negotiating 'tates were agreed that signatures should ha#e that effectH or cM the intention of the 'tate to gi#e that effect to the signature appears from the full powers of its representati#e or was eGpressed during the negotiations. R"ti i!"tion The act b which the pro#isions of a treat are formall confirmed and appro#ed b a 'tate. C ratif ing a treat signed in its behalf" a 'tate eGpresses its willingness to be bound b the pro#isions of such treat . 'tate ma ratif a treat onl when it is a signator to it. There is no moral dut on the part of the 'tates to ratif a treat notwithstanding that its plenipotentiaries ha#e signed the same. This step" howe#er" should not be ta-en lightl . ( treat ma pro#ide that it shall not be #alid e#en ratified but shall be #alid

onl after the eGchange or deposit of ratification has transpired. 4. Wh"t i$ r"ti i!"tion6 Di$!&$$ it$ &n!tion in the tre"t*#m"Gin0 pro!e$$) <e+(. 0atification is generall held to be an eGecuti#e act" underta-en b the head of state or of the go#ernment" as the case ma be" through which the formal acceptance of the treat is proclaimed. ( 'tate ma pro#ide in its domestic legislation the process of ratification of a treat . The consent of the 'tate to be bound b a treat is eGpressed b ratification when/ LaM the treat pro#ides for such ratification" LbM it is otherwise established that the negotiating 'tates agreed that ratification should be re>uired" LcM the representati#e of the 'tate has signed the treat sub$ect to ratification" or LdM the intention of the 'tate to sign the treat sub$ect to ratification appears from the full powers of its representati#e" or was eGpressed during the negotiation. LC(P(4 1Cagong (l ansang Ma-aba an; #. EGecuti#e 'ecretar 0onaldo Tamora" 3.0. 4o. 1398):" Ict. 1:" 2:::" En Canc 1Cuena;M A!!e$$ion or A(heren!e Jhen a 'tate" who has 4IT 'I34ED a treat " accedes to it.
Binding E$$ects o$ a Treat+ 1s a rule% a treaty is binding only on the contracting parties% including not only the original signatories but also other states% which% although they may not have participated in the negotiation of the agreement% have been allowed by its terms to sign it later by a process known as accession. 5on-parties are usually not bound under the ma8im of pacta tertiis nec noceat nec prosunt5

A. . Dhen a treaty is a mere formal e8pression of customary international law% which% as such is enforceable on all civilized states because of their membership in the family of nations. .. Bnder 1rticle . of its charter% the B5 shall ensure that non-member $tates act in accordance with the principles of the /harter so far as may be necessary for the maintenance of international peace and security. Bnder 1rticle H0% obligations of member-states shall prevail in case of conflict with any other international agreement including those concluded with non-members. 0. Fhe treaty itself may e8pressly e8tend its benefits to non-signatory states. ;. 'arties to apparently unrelated treaties may also be linked by the most-favored nation clause.

S&23e!t M"tter o Tre"tie$ 1M !olitical Issues 2M +hanges in 4ational !olicies 3M In#ol#e International (greements of a !ermanent +haracter S&23e!t M"tter o EA$ 1M =a#e transitor effecti#it 2M (d$ustment of details carr ing out wellestablished national policies and traditions 3M (rrangements of temporar nature 6M Implementation of treaties" statutes" well established policies.
/. (ow does a treat+ di$$er $ro! e1ecuti"e agree!ent, A. 1n e8ecutive agreement is not a treaty in so far as its ratification may not be reEuired under the /onstitution. *owever% the distinction is purely municipal and has no international significance. From the standpoint of international law% treaties and e8ecutive agreement are alike in that both constitute eEually binding obligations upon the nations. ?FB $ayre% 0# /olumbia (aw :eview% p. !<% #0#@

4. En&mer"te in$t"n!e$ when " thir( St"te who i$ non#$i0n"tor* m"* 2e 2o&n( 2* " tre"t*)

1n e8ecutive agreement is 57F a treaty. 1s such% concurrence by two-thirds vote ?.J0@ of all the members of the $enate is not necessary for it to become binding and effective. /. Is ; A a treat+ or a !ere e1ecuti"e agree!ent, A. In the case of Bayan vs. Kamora% 3F1 was considered a treaty because the $enate concurred in via .J0 votes of all its members. But in the point of view of the B$ +overnment% it is merely an e8ecutive agreement.

Form "n( Time o Re$er'"tion Jritten statement or declaration recorded at the time of signing or ratif ing or acceding to the treat . O23e!te( Re$er'"tion$ !arties to the treat ma ob$ect to the reser#ations of a 'tate entering the treat . ( 1581 (d#isor Ipinion of the I+2 held that a reser#ing 'tate ma be a part to a treat notwithstanding that one or more parties to the con#ention" but not all" ob$ects to its reser#ations and such reser#ations are not contrar to the ob$ect and purpose of said con#ention. REGISTRATION O PUBLICATION (rticle 1:2" D4 +harter 1. E#er treat and e#er international agreement entered into b an Member of the D4 after the present +harter comes into force shall as soon as possible be registered with the 'ecretariat and published b it. 2. 4o part to an such treat or international agreement which has not been registered in accordance with the pro#isions of para.1 of this (rticle ma in#o-e that treat or agreement before an organ of the D4. The treat " howe#er" remains #alid although not registered and not published in the D4. Entr* into For!e Means the date of effecti#it of a treat as pro#ided in the stipulations of the parties. In the absence of such stipulation" it is deemed in force as soon as the consent of (LL the parties are established. 4. Are Tre"tie$ Se+ #E=e!&tin06 A. Sualified answer. In international law" it self-eGecutes from the time of its entr into force.

4. C"n the <o&$e o Repre$ent"ti'e$ t"Ge "!ti'e p"rt in the !on(&!t o orei0n re+"tion$> p"rti!&+"r+* in enterin0 into tre"tie$ "n( intern"tion"+ "0reement$6 7899N B"r; A. 4I. (s held in D' #. +urtiss Jright EGport +orporation 255 D' 3:6" it is the !resident alone who can act as representati#e of the nation in the conduct of foreign affairs. (lthough the 'enate has the power to concur in treaties" the !resident alone can negotiate treaties and +ongress is powerless to intrude into this. =owe#er" if the matter in#ol#es a treat or an eGecuti#e agreement" the =0 ma pass a resolution eGpressing its #iews on the matter. Re$er'"tion$ ( unilateral state ent" howe#er phrased or named" made b a 'tate" when signing" ratif ing" accepting" appro#ing" or acceding to a treat " whereb it purports to eGclude or modif the legal effect of certain pro#isions of the treat in their application to that 'tate. When Re$er'"tion !"nnot 2e m"(e aM If the treat itself pro#ides that 4I reser#ation shall be admissible" or bM the treat allows onl speci"ied reservations which do not include the reser#ation in >uestion" or cM the reser#ation is inco pati!le with the ob$ect and purpose of the treat .

=owe#er" there is 4I absolute rule that treaties are self-eGecuting within the sphere of municipal law. 'ome municipal laws re>uire further steps such as publication and promulgation before it can produce legal effect. 4e#ertheless" in the !hilippines" treaties are part of the law of the land. I4+I0!I0(TII4 +L(D'E. 4. E=p+"in the me"nin0 o the !on!ept o Emo$t "'ore( n"tionF tre"tment6 7899I B"r; A. The most fa#ored nation treatment is that granted b one countr to another not less fa#orable than that which has been or ma be granted to the most fa#ored among other countries. It usuall applies to commercial transactions such as international trade and in#estments. PACTA SUNT SERVANDA 7PSS; L(30EEME4T MD'T CE NE!TM Means that treaties must be performed in good faith. Ine of the oldest and most fundamental rules of international law. 4. E=p+"in the Ep"!t" $&nt $er'"n("F r&+e) <e+(. Ine of the oldest and most fundamental rules in international law is pacta sunt ser#anda international agreements must be performed in good faith. ,( treat engagement is not a mere moral obligation but creates a legall binding obligation on the parties G G G. ( state which has contracted #alid international obligations is bound to ma-e in its legislations such modifications as ma be necessar to ensure the fulfillment of the obligations underta-en.. LTanada #. (ngara" 2)2 '+0( 19" Ma 2" 155) 1!anganiban;M In +&en!e$ to en$&re o2$er'"n!e to PSS aM national self-interest

bM a sense of dut cM respect for promises solemnl gi#en dM desire to a#oid the oblo>u attached to breach of contracts Z Creach in#ol#es the obligation to ma-e reparations. There is" howe#er" no necessit to state this rule of reparation in the treat itself because the are indispensa!le co ple ent of failure to compl to oneKs obligations. REBUS SIC STANTIBUS 7RSS; LT=I43' 0EM(I4I43 (' T=EP (0EM This doctrine in#ol#es the legal effect of change in conditions underl ing the purposes of a treat . 'impl stated" the disappearance o" the "oundation upon #hich it rests. (uthors" $urists" and tribunals are #aried in the application of this doctrine. ( ma$orit " howe#er" hold that ,the obligation of a treat ter inates when a change occurs in circumstances which eGisted at the time of the conclusion of the treat and whose continuance formed" according to the intention or will of the parties" a condition of the continuing #alidit of the treat .. The change must be vital or "unda ental. (lso" under this doctrine" a treat terminates if the performance of obligations thereof will in$ure fundamental rights or interests of an one of the parties. E=p+"in the Mre2&$ $i! $t"nti2&$M r&+e 7i)e)> thin0$ rem"inin0 "$ the* "re;) Doe$ it oper"te "&tom"ti!"++* to ren(er " tre"t* inoper"ti'e6 <e+(. (ccording to 2essup" the doctrine constitutes an attempt to formulate a legal principle which would $ustif nonperformance of a treat obligation if the conditions with relation to which the

parties contracted ha#e changed so materiall and so uneGpectedl as to create a situation in which the eGaction of performance would be unreasonable. The -e element of this doctrine is the #ital change in the condition of the contracting parties that the could not ha#e foreseen at the time the treat was concluded. The doctrine of rebus sic stantibus does not operate automaticall to render the treat inoperati#e. There is a necessit for a formal act of re$ection" usuall made b the head of state" with a statement of the reasons wh compliance with the treat is no longer re>uired. L'antos III #. 4orthwest Irient (irlines" 21: '+0( 287" 2une 23" 1552M Limit"tion$ to RSS aM It applies onl to treaties of indefinite durationH bM The #ital change must ha#e been unforeseen or unforeseeable and should ha#e not been caused b the part in#o-ing the doctrine. cM It must be in#o-ed within reasonable timeH and dM It cannot operate retroacti#el upon the pro#isions of a treat alread eGecuted prior to the change in circumstances. R&+e$ Go'ernin0 Termin"tion o RSS aM a fundamental change L%+M must ha#e occurred with respect to circumstances eGisting at the time of the conclusion of the treat H bM the eGistence of those circumstances constituted the basis of the consent of the parties to be bound b the treat H and cM the change has radicall transformed the eGtent of the obligations still to be performed under the treat .

When FC !"nnot 2e in'oGe( aM if the treat establishes a boundar bM if the %+ is the result of the breach b the part in#o-ing it of an obligation owed to an other part to the treat . EFFECT OF TERRITORIAL C<ANGES L15)9 +I4*E4TII4 I4 'D++E''II4 I% 'T(TE' I4 0E'!E+T TI T0E(TIE'M Di$po$iti'e Tre"tie$ These are treaties which deal with rights o#er territor and are deemed to run #ith the land and are not affected b changes of so#ereignt . e.g. treaties dealing with boundaries between 'tates. Z Jhen an eGisting 'tate ac>uires a territor " it does not succeed to the predecessor 'tateKs treaties" but its own treaties becomes applicable to the newl ac>uired territor . New St"te$ Forme( Thro&0h De!o+oni1"tion aM a new 'tate is under 4I obligation to succeed to the old 'tate as a part to a multilateral treat " but if it wants to do so" it has to notif the depositor that it regards itself as a succeeding part to the treat . bM a new 'tate can be a part to an eGisting treat between the predecessor 'tate and another 'tate onl if the other 'tate and the new 'tate both agree. 'uch" howe#er" ma be implied from the conduct of both 'tates. New St"te$ Forme( Thro&0h Se!e$$ion or Di$inte0r"tion

'ucceeds (DTIM(TI+(LLP to most of the predecessorKs treaties applicable to the territor that has seceded or disintegrated. ,C+e"n S+"teF Do!trine Dnder this doctrine" seceding or disintegrating 'tates DIE' 4IT ma-e succession to an eGisting treat automatic. Interpret"tion o Tre"tie$ ( treat shall be interpreted in $ood "aith in accordance with the ordinary eanin$ to be gi#en to the terms of the treat in their conte=t and in the light of its o!ject and purpose. There are" howe#er" 4I TE+=4I+(L 0DLE'. CANONS OF INTERPRETATION 3enerall regarded b publicists as applicable to treaties consist largel of the application of principles of lo$ic, e-uity and co on sense to the teGt for the purpose of disco#ering its meaning. TRAVAUD PREPARATOIRES !reparator wor-s as a method of historical interpretation of a treat . These wor-s are eGamined for the purpose of ascertaining the intention of the parties. The interpretation of one 'tate" e#en according to its municipal laws and gi#en b its authori?ed organs within the 'tate" is 4IT CI4DI43 to the other part unless the latter accepts it. 4o interpretation is needed when the teGt is clear and unambiguous. ( treat ma be authoritati#el interpreted/ aM b interpretation gi#en b the treat itself bM b mutual agreement or cM through international court arbitration

TERMINATION OF TREATIES Mo$t Common C"&$e$. aM Termination of the treat or withdrawal of a part in accordance with the terms of the treat H bM In bipartite treaties" the eGtinction of one of the parties terminates the treat . Moreo#er" when the rights and obligations under the treat would not de#ol#e upon the 'tate that ma succeed to the eGtinct 'tate. cM Mutual agreement of (LL the partiesH dM Denunciation of the treat b one of the parties. RIG<T OF DENUNCIATION the right to gi#e notice of termination or withdrawal which must be eGercised if pro#ided for in the treat itself or impliedl H eM 'uper#ening impossibilit of performanceH fM +onclusion of a subse>uent inconsistent treat between the same partiesH gM *iolation of the treat H hM Doctrine of 0''H iM Jar between the parties war does not abrogate ipso "acto all treaties between the belligerents. $M 'e#erance of diplomatic or consular relationsH -M Emergence of a new peremptor norm contrar to the eGisting treat . lM *oidance of the treat because of defects in its conclusion or incompatibilit with international law or the D4 +harter. B) STATE RESPONSIBILIT? FOR IN/UR? TO ALIENS R&+e. 4I 'tate is under obligation to admit aliens. This flows from so#ereignt . E=!eption. If there is a treat stipulation imposing that dut .

'tate ma sub$ect admission of aliens to certain legal conditions. e.$. >uota s stem 'tate ma eGpel aliens within its territor . EGpulsion ma be predicated on the ground that the presence of the alien in the territor will menace the securit of the 'tate. This is sub$ect to 0efoulement !rinciple.. the ,4on-

( 'tate is under obligation to ma-e reparation to another 'tate for the failure to fulfill its primar obligation to afford" in accordance with international law" the proper protection due to an alien who is a national of the latter 'tate. R&+e. ( 'tate is responsible for the maintenance of law and order within its territor . E=!eption. If the in$ur is not directl attributable to the recei#ing 'tate and when it was proGimatel caused b the alien himself. Jhen acts of #iolence occur therein" it ma be said that the 'tate is indirectl responsibleH on the other hand" the 'tate cannot be regarded as an absolute insurer of the moralit and beha#ior of all persons within its $urisdiction.
/. Is the %tate liable $or death and inBur+ to aliens, A. 57% unless it participates directly or is remiss or negligent in taking measures to prevent in6ury% investigate the case% punish the guilty% or to enable the victim or his heirs to pursue civil remedies.

Re!on(&!tion It means the forcible con#e ing of aliens. (s a 'tate cannot refuse to recei#e such of its sub$ects as are eGpelled from abroad" the home 'tate of such aliens as are reconducted has the obligation to recei#e them. Po$ition o A+ien$ A ter Re!eption Jhen aliens are recei#ed" the are sub$ect to the municipal laws of the recei#ing 'tate. aM Transient bM DomiciledQ0esidents domicile creates a sort of >ualified or temporar allegiance. 'ub$ected to restrictions not usuall imposed against transient aliens. Limit"tion$ - aliensK rights are not at par with citi?ensK as regards political or ci#il rights. B"$e$ o Gr"nt o Ri0ht$ !rinciple of 0eciprocit M%4 treatment 4ationalit treatment e>ualit between nationals and aliens in certain matters. dM 1569 DD=0 and other treaties aM bM cM DOCTRINE OF RESPONSIBILIT? STATE

F&n!tion To pro#ide" in the general world interest" ade>uate protection for the stranger" to the end that tra#el" trade and intercourse ma be facilitated. E$$enti"+ E+ement$. 1M an act or omission in #iolation of international law 2M which is imputable to the 'tate 3M which results in in$ur to the claimant either directl or indirectl through damage to a national.

A!t$ or Omi$$ion$ Imp&t"2+e to the St"te It is necessar to distinguish acts of pri#ate indi#iduals and those of go#ernment officials and organs. Deni"+ o /&$ti!e This term has been restricti#el construed as an in$ur committed b a court of $ustice. There is denial of $ustice when there is/ aM unwarranted dela " obstruction or denial of access of courtsH bM gross deficienc in the administration of $udicial or remedial processH cM failure to pro#ide those guarantees usuall considered indispensable to the proper administration of $usticeH or dM a manifestl un$ust $udgment. Minim&m Intern"tion"+ St"n("r( 7MIS; 4I !0E+I'E DE%I4ITII4 The treatment of an alien" in order to constitute an international delin>uenc " should amount to an outrage" to bad faith" to willful neglect of dut or to an insufficienc of go#ernmental action so far short of international standards that e#er reasonable and impartial man would readil recogni?e its insufficienc . 4EE0K' +('E" D'-MEFI+(4 +L(IM' +IMMI''II4 E=propri"tion o Forei0n#Owne( Propert* Jestern countries maintain that MI' re>uires/ aM eGpropriation must be for a public purposeH bM it must be accompanied b pa ment of compensation for the full #alue of the propert that is prompt" ade>uate and effecti#e.

+ommunist countries" howe#er" maintain that 'tates ma eGpropriate the means of production" distribution and eGchange without pa ing compensation. De#eloping countries" hoping to attract foreign in#estments" are inclined to accept Jestern #iew. CONDITIONS FOR ENFORCEMENT OF CLAIMS 1) nationalit claim 2) eGhaustion of local remedies 3) no wai#er 4) no reasonable dela in filing the claim 5) no improper beha#ior b in$ured alien N"tion"+it* o !+"im In asserting the claims of its nationals" b resorting to diplomatic actions on his behalf" the 'tate is in realit asserting its own right. It is the bond of nationalit between the state and the indi#idual which confers upon the 'tate the right of diplomatic protection. Do!trine o Gen&ine LinG The bond of nationalit must be real and effecti#e in order that a 'tate ma claim a person as its national for the purpose of affording him diplomatic protection. 4ITTECI=4 +('E 1588 I+2 [ Do!trine o E e!ti'e N"tion"+it* Jhen a person who has more than one nationalit is within a third 'tate" he shall be treated as if had onl one either the nationalit of the countr which he is habituall and principall a resident or the nationalit of the countr with which in the circumstances he

appears to be most closel connected without pre$udice to the application of its L3rd 'tateKsM law in matters of personal status and of an con#ention in force. (0T. 8" =(3DE +I4*E4TII4 I% 15:3. These t#o doctrines are used interchan$ea!ly !y authors and co entators #ithout any e""ort to a@e a distinction !et#een the t#o. 4t ay !e treated ali@e. 4. Wh"t i$ the E(o!trine o e e!ti'e n"tion"+it*F 70en&ine +inG (o!trine;6 <e+(. This principle is eGpressed in (rticle 8 of the =ague +on#ention of 153: on the +onflict of 4ationalit Laws as follows/ (rt. 8. Jithin a third 'tate a person ha#ing more than one nationalit shall be treated as if he had onl one. Jithout pre$udice to the application of its law in matters of personal status and of an con#ention in force" a third 'tate shall" of the nationalities which an such person possesses" recogni?e eGclusi#el in its territor either the nationalit of the countr in which he is habituall and principall resident or the nationalit of the countr with which in the circumstances he appears to be in fact most closel connected. L%ri#aldo #. +IMELE+" 1)6 '+0( 268" 2une 23" 1595M 3 Mo(e$ o A!5&irin0 N"tion"+it* 1M Cirth a. jus san$uinis Lb bloodM b. jus soli Lb placeM 2M 4aturali?ation a. naturali?ation proceedings b. marriage c. legitimation d. option

e. ac>uisition of domicile f. appointment as go#ernment official 3M 0esumption or 0epatriation reco#er of the original nationalit upon fulfillment of certain conditions. @ Mo(e$ o Lo$in0 N"tion"+it* 1M 0elease 2M Depri#ation 3M EGpiration 6M 0enunciation 8M 'ubstitution P8> AIV> 89:I Phi+) Con$tit&tion The following are citi?ens of the !hilippines/ 1M Those who are citi?ens of the !hilippines at the time of the adoption of the +onstitutionH 2M Those whose fathers or mothers are citi?ens of the !hilippinesH 3M Those who elect !hilippine citi?enship pursuant to the pro#isions of the +onstitution of 1538H 6M Those who are naturali?ed in accordance with law. E=h"&$tion o Lo!"+ Reme(ie$ R&+e. The alien himself must ha#e first eGhausted the remedies pro#ided b the municipal law" if there be an . E=!eption$. aM Jhen the in$ur is inflicted directl b the 'tate such as when its diplomats are attac-ed. bM Jhen there are no remedies to eGhaustH cM The application for remedies would result in no redress. No w"i'er The claim belongs to the 'tate and not to

the indi#idual. Thus" wai#er of indi#idual does not preclude the 'tate to pursue the claim. CALVO CLAUSE 4amed after an (rgentinean law er and statesman who in#ented it stipulating that the alien agrees in ad#ance not to see- diplomatic inter#ention. disregarded b international arbitral tribunals because the alien cannot wai#e a claim that does not belong to him but to his go#ernment.
/. Is the Cal"o clause law$ul, A. Insofar as it reEuires alien to e8haust the remedies available in the local state% it may be enforced as a lawful stipulation. *owever% it may not be interpreted to deprive the alienGs state of the right to protect or vindicate his interests in case they are in6ured by local state.

which such enforced.

laws are

administered

and

For e8ample% a law imposing death penalty for a petty theft would fall short of the international standard. $o to would one calling for the arbitrary punishment of accused persons without compliance with the usual reEuisites of due process.

N"t&re "n( Me"$&re o D"m"0e$ 0eparation ma consist of restitution/ aM in -ind bM specific performance cM apolog dM punishment of the guilt eM pecuniar compensation fM or the combination of the abo#e 3easure estimate of the loss caused to the in$ured indi#idual" or" if he has lost his life" on the loss caused b the death to his dependents. 4. Wh"t i$ the prin!ip+e o "ttri2&tion6 7899, B"r; A. The acts of pri#ate citi?ens or groups cannot themsel#es constitute a #iolation b the !hilippines if said acts cannot be legall attributed to the 'hilippines as a State. N"t&re It is well established in international law that no 'tate can" without its consent" be compelled to submit its disputes with other 'tates either to mediation or arbitration" or to an other -ind of pacific settlement L!'M. L!+I2 on ST(TCS :; ,(ST,)N C(),L4(.1 Di$p&te % is a disa$ree ent on a point of law or fact" a conflict of legal #iews or interests between two persons. The mere denial of the eGistence of a dispute does not pro#e its non-eGistence because disputes are matters for o!jective deter ination.

No im)ro)er #ehavior #y in1ured alien. =e who comes to court for redress must come with clean hands. Metho($ o Pre$$in0 C+"im$ 1M Diplomatic Inter#ention 2M International $udicial settlement The I+2 is authori?ed to assume $urisdiction to determine ,the nature or eGtent of the reparation to be made for the breach of an international obligation". but onl after the 'tate-parties agree thereto.
What is the International standard o$ Bustice, It is defined as the standard of the reasonable state and calls for compliance with the ordinary norms of official conduct observed in civilized 6urisdictions. It may refer to the intrinsic validity of the laws passed by the state or to the manner in

Intern"tion"+ Di$p&te if the dispute arises between two or more 'tates. Z The charging of one 'tate and the denial of another of the dispute as charged" creates an international dispute as ,there has thus arisen a situation in which the two sides hold clearl opposite vie#s concerning the >uestions of the performance or nonperformance of their treat obligations. +onfronted with such a situation" the +ourt must conclude that international disputes ha#e arisen.. IC/ Report$ 89@H Le0"+ Di$p&te the following are deemed constituti#e of a legal dispute/ i. interpretation of a treat H ii. an >uestion of international lawH iii. the eGistence of an fact which" if established" would constitute a breach of an international obligationH i#. the nature or eGtent of the reparation to be made for the breach of an international obligation. Di$p&te ') Sit&"tion ( dis)ute can properl be considered as a disa$ree ent on a matter at issue between two or more 'tates which has reached a stage at which the parties ha#e formulated claims and counterclaims sufficientl definite to be passed upon b a court or other bod set up for the purpose of pacific settlement. ( situation, b contrast" is a state o" a""airs which has not et assumed the nature of conflict between the parties but which ma " though not necessaril " come to ha#e that character. Option"+ C+"&$e BI!TII4(L 2D0I'DI+TII4 +L(D'EC

The following are deemed legal disputes/ 1. Interpretation of a treat H 2. (n >uestion of international lawH 3. The eGistence of an fact which" if established" would constitute a breach of an international obligationH and 6. The nature or eGtent of the reparation to be made for the breach of an international obligation. T?PES OF P"!i i! Sett+ement I) Ne0oti"tion The legal and orderl administrati#e process b which go#ernments" in the eGercise of their un>uestionable powers" conduct their relations with one another and discuss" ad$ust and settle their differences. The chief and most common method of settling international disputes. C this method" the parties see- a solution of their differences b direct eGchange of #iews between themsel#es. This is the #er essence of diplomac . II) Goo( O i!e$ (n attempt of a third part to bring together the disputing 'tates to effect a settlement of their disputes. This is 4IT to be regarded as an unfriendl act. Ten(er o 0oo( o i!e ( tender of good office ma be made b / aM Third 'tate bM international organs such as the D4H or cM Indi#iduals or eminent citi?ens of a third 'tate. III) Me(i"tion This is the action of a third part in bringing the parties to a dispute together and helping them in a more or less

informal wa to find a basis for the settlement of their dispute. Me(i"tion ') Goo( O i!e$ In good offices" once the parties ha#e been brought together" the third part tendering good offices has no further functions to perform. In mediation" on the other hand" the third part mediates and is the more acti#e one" for he proposes solution" offers his ad#ice and in general attempts to conciliate differences. IV) En5&ir* En>uir is the establishment of the facts in#ol#ed in a dispute and the clarification of the issues in order that their elucidation might contribute to its settlement. D %asis it rests on the theor that certain disputes could be settled if the facts of the case were established. D :!ject o" ,n-uiry - to ascertain the facts underl ing a dispute and thereb prepare the wa for a negotiated ad$ustment or settlement of the dispute. V) Con!i+i"tion This is the process of settling disputes b referring them to commissions or other international bodies" usuall consisting of persons designated b agreement between the parties to the conflict" whose tas- is to elucidate the facts and ma-e a report containing proposals" for a settlement" which" howe#er" ha#e no binding character. I!!E4=EIM D Conciliation v. ,n-uiry in en>uir " the main ob$ect is to establish the facts. In conciliation" the main ob$ect is not onl to elucidate the facts but to bring the parties to an agreement.

VI) Ar2itr"tion This is a procedure for the settlement of disputes between 'tates b a binding award on the basis of law and as the result of an underta-ing #oluntaril accepted. 'rinciple o" ;ree +eter ination this principle applies to the competence of the arbitral tribunal" the law to be applied and the procedure to be followed. Choice o" (r!itrators E the arbitrators should be either freel selected b the parties or" at least" the parties should ha#e been gi#en the opportunit of a free choice of arbitrators. 'tates are under no obligation to arbitrate disputes. legal their

com)romis d2 ar#itra e the agreement to arbitrate. It is the charter of the arbitral tribunal. +ontains the following/ aM the >uestions to be settledH bM the method of selecting arbitrators and their numberH cM #enueH dM eGpensesH eM the arbitral awardH fM rules of procedureH and gM the law to be applied. VII) /&(i!i"+ Sett+ement This means settlement b a per anent international court of $ustice" in accordance with $udicial methods. (rbitration proceedings ma be similar to the functions and process of $udicial settlement but the arbitral tribunal is 4IT a permanent bod as compared to the

bod referred to in this t pe of !'. I) Se'er"n!e o Dip+om"ti! Re+"tion$ 'e#erance ma ta-e place/ aM to mar- se#ere disappro#al of a 'tateKs conductH bM to influence the offending 'tate to remed the conse>uences of some unfriendl or illegal actH cM to ser#e notice on the other 'tate that the issue between them has reached a point where normal diplomatic intercourse is no longer possible and that sterner measures might possibl follow. Sus)ension of 3elations has been used to denote a less drastic step than complete se#erance of diplomatic ties. It in#ol#es withdrawal of diplomatic representation" but not the se#erance of consular relations. No #reach in int2l. law % there eGists no obligation to maintain diplomatic intercourse with other 'tates" thus" se#erance of an eGisting relation does not tantamount to breach of international law. II) Retor$ion +onsists of an unfriendl " but not international illegal act of one 'tate against another in retaliation for the latterKs unfriendl or ine>uitable conduct. It does not in#ol#e the use of force. 'tates resorting to retorsion retaliate b acts of the same or similar -ind as those complained of. It is resorted to b 'tates usuall in cases of unfair treatment of their citi?ens abroad. III) Repri$"+$ (n -ind of forcible or coerci#e measures whereb one 'tate see-s to eGercise a

deterrent effect or to obtain redress or satisfaction" directl or indirectl " for the conse>uences of the illegal acts of another 'tate" which has refused to ma-e amends for such illegal conduct. Criteri" or Le0itim"!* aM that the 'tate against which reprisals are ta-en must ha#e been guilt of a breach of international lawH bM that prior to recourse to reprisals an ade>uate attempt must ha#e been made" without success" to obtain redress from the delin>uents 'tate for the conse>uences of its illegal conductH and cM That acts of reprisals must not be eGcessi#e. , -in($ o Repri$"+$. aM )eprisal as a "or o" sel"-help is resorted to for the purpose of settling a dispute or redressing a grie#ance without going to war" conse>uentl no state of war eGists between the 'tate resorting to reprisals and the 'tate against whom such acts are directed. bM )eprisal ta@en !y !elli$erents in the course o" #ar the purpose of the latter -ind of reprisals is to compel a belligerent to obser#e or desist from #iolating the laws of warfareH it presupposes" therefore" the eGistence of a state of war between the parties concerned. Repri$"+$ Retor$ion +onsists of acts +onsists of which would retaliator conduct ordinaril be which is legitimate illegal. or is not in #iolation of international law. 3enerall resorted (cts which gi#e

to b a 'tate in conse>uence of an act or omission of another 'tate which under international law constitutes an international delin>uenc .

rise to retorsion though obnoGious do not amount to an international delin>uenc .

considered condemned or confiscated" but must be returned when the delin>uent 'tate ma-es the necessar reparation. Ci'i! or P"!i i! Em2"r0o ( form of embargo emplo ed b a 'tate to its own #essels within its national domain or of resources which otherwise might find their wa into foreign territor . Co++e!ti'e Em2"r0o Embargo b a group of 'tates directed against an offending 'tate. This ma be/ aM collecti#e embargo on import or eGport of narcotic drugs bM collecti#e embargo b wa of enforcement action under the D4 +harter V) Bo*!ott ( comparati#el modern form of reprisal which consists of a concerted suspension o" trade and !usiness relations with the nationals of the offending 'tate. VI) Non#inter!o&r$e +onsists of suspension of (LL commercial intercourse with a 'tate. ( complete or partial interruption of economic relations with the offending 'tate as a form of enforcement measure. VII) P"!i i! B+o!G"(e ( na#al operation carried out in time of peace whereb a 'tate pre#ents access to or eGit from particular ports or portions of the coast of another 'tate for the purpose of compelling the latter to ield to certain demands made upon it b the bloc-ading 'tate. Third 'tates do not ac>uire the status of neutrals because there is no

Form$ o Repri$"+$ aM militar occupation bM displa of force cM na#al bombardment dM sei?ure of ships at sea eM sei?ure of properties of nationals of the delin>uent 'tate fM free?ing of assets of its citi?ens gM embargo hM bo cott iM pacific bloc-ade Letter$ O M"r5&e or Spe!i"+ Repri$"+$ (ct of a 'tate granting their sub$ects who could not obtain redress for in$ur suffered abroad" authori?ing them to perform acts of self-help against the offending 'tate or its nationals for the purpose of obtaining satisfaction for the wrong sustained. IV) Em2"r0o L'e>uestration Q =ostile EmbargoM This is originall a form of reprisal consisting of "orci!le detention o" the vessels of the offending 'tate or of its nationals which happened to be l ing in the ports of the in$ured or aggrie#ed 'tate. Later" the practice was eGtended to such #essels also as were sei?ed in the high seas" or e#en within the territorial waters of the offending 'tate. *essels se>uestered are not

belligerenc between the bloc-ader and the 'tate. 4&"r"ntine 1'ee mo#ie ,Thirteen Da s.; The right to stop and search #essels of third 'tates suspected of carr ing specified cargo to the ,>uarantined. 'tate has been asserted b the bloc-ading 'tate. T=E +DC(4 SD(0(4TI4E. Cloc-ade ma no longer be resorted to b 'tates Members as a measure of self-help. It ma onl be used collecti#el b or on behalf of the D4 as an enforcement action under (rticle 61 of the D4 +harter.

other means of communicationH and bM se#erance to the diplomatic relations. Arti!+e A,> UN Ch"rter 'hould the '+ consider that measures pro#ided for in (rticle 61 would be inade-uate or ha#e pro#ed to be inade>uate" it ma ta-e such action b air" sea" or land forces as ma be necessar to maintain or restore international peace and securit . 'uch action ma include/ aM demonstrations bM bloc-ade and cM other operations b air" sea" or land forces of Members of the D4. The L"w$ o W"r W"r 4N8)4+ +,TT,) +, LC'4S ( sustained struggle b armed forces of a certain intensit between groups of certain si?e" consisting of indi#iduals who are armed" who wear distincti#e insignia and who are sub$ected to militar discipline under responsible command. Le0"+it* o W"r &n(er UN The use of armed force is allowed under the D4 +harter onl in case of indi#idual or collecti#e self-defense" or in pursuance of a decision or recommendation of the '+ to ta-e forcible action against an aggressor. (s Sel"-+e"ense the use of force in selfdefense is permitted onl while the '+ has not ta-en the necessar measures to maintain or restore international peace and securit . The laws of war are not applicable to war alone in its technical sense" but to all armed conflicts.

VIII) Co++e!ti'e Me"$&re$ &n(er the Ch"rter ( s stem of peace enforcement under the D4 +harter. It en#isages the emplo ment" if necessar " of compulsi#e measures to maintain or restore peace. These measures ma or ma not in#ol#e the use of armed forces. The enforcement pro#isions of the +harter are brought into pla onl in the e#ent that the '+ determines" under (rticle 35" that there eGists a ,threat to peace" a breach of the peace" or an act of aggression.. Arti!+e A8> UN Ch"rter The '+ ma decide what measures not in#ol#ing the use of armed forces are to be emplo ed to gi#e effect to its decisions" and it ma call upon the Members of the D4 to appl such measures. These ma include complete or partial interruption of/ aM economic relations and of rail" sea" air" postal" telegraphic" radio" and

N"t&re o En or!ement A!tion &n(er UN D4 %orces must beha#e in a manner consistent with the purposes and ideals of the Irgani?ation and must obe the rules of war which represent a general international attempt to humani?e armed conflict. Temper"ment" o W"r "re 3rotius ad#ocated moderation in the conduct of hostilities for reasons of humanit " religion and farsighted polic . R&+e$ o W"r O2$o+ete The radical change in the character of war" both in scope and method" has rendered man of the traditional rules of warfare obsolete" or at an rate frightfull inade>uate. S"n!tion$ o the +"w$ o w"r Ibser#ance of the rules of warfare b belligerents is secured through se#eral means recogni?ed b international law/ 1) reprisals 2) punishment of war crimes committed b enem soldiers and other enem sub$ects 3) protest lodged with the neutral powers 4) compensation The ta-ing of hostages" formerl considered a legitimate means of enforcing obser#ance of the laws of war" is no longer permitted at present time. Intern"tion"+ <&m"nit"ri"n L"w 7I<L; These are the laws of armed conflict. It used to be called the laws of war. It regulates the conduct of actual conflict L$us in belloM as distinguished

from laws pro#iding for the instances of the lawful resort to force L$us ad bellumM. It is a functional and utilitarian bod of laws" not $ust humanitarian. It is part of International +riminal Law and deals with breaches of international rules on the laws of armed conflict entailing the personal liabilit of the indi#iduals concerned" as opposed to the responsibilit of the 'tate which is co#ered b !ublic International Law proper. L42LB ( ;ield 8uide to the %asics, The 7FFG 3etro!an@ Lecture on 4nternational La#, 77 Nov. 7FFG !y (ssociate &ustice (dol"o S. (.cunaM COMMENCEMENT It was customar to notif an intended war b letters of defiance" herald" or preliminar warning b declaration or ultimatum. 15:) 2nd =ague +onference The contracting 'tates recogni?ed that hostilities between them ought not to commence without previous and une-uivocal #arnin$ which might ta-e the form of either/ aM a declaration of war gi#ing reasonsH bM an ultimatum with a conditional declaration of war. animo #elli erendi %rom the point of #iew of international law" war commences upon the commission of an act of force b one part done in ani o !elli$erendi. Jar An0+o#Ameri!"n R&+e Cound b a statement b the eGecuti#e as to when a state of war is commenced.
/. What are so!e Ainds o$ non8hostile

intercourse between the belligerents, A. 1mong the kinds of non-hostile intercourse are flags of truce% cartels% passports% safe-conduct% safeguards and license to trade. /. B+ what agree!ents !a+ hostilities be sus2ended between the belligerents, A. *ostilities may be superceded by a suspension of arms% an armistice% a ceasefire% a truce% or a capitulation. %us2ension o$ Ar!s It is the temporary cessation of hostilities by agreement of the local commanders for such purposes as the gathering of the wounded and the burial of the dead. AR4I%TICE It is the suspension of all hostilities within a certain area ?local@ or in the entire region of the war ?general@ agreed upon by the belligerent governments% usually for the purpose of arranging terms of peace. CEA%E IRE It is the unconditioned stoppage of hostilities by order of an international body like the $ecurity /ouncil for the purpose of employing peaceful means of settling the conflict. TRUCE $ometimes use interchangeably with armistice% but is now understood to refer to a ceasefire with conditions attached. CAPITULATION

bM b a treat of peace this is the usual method of terminating war. It ma be a negotiated peace treat . Ir a peace treat thru a dictated treaty. cM b unilateral declaration if the war results in the complete defeat or unconditional surrender of a belligerent the formal end of the war depends on the decision of the #ictor. uti )ossidetis Each belligerent is regarded as legall entitled to such propert as are actuall in its possession at the time hostilities ceased. status (uo ante #ellum Each of the belligerents is entitled to the territor and propert which it =(D possession of at the commencement of the war. Di!t"te( Tre"t* This happens where the decisi#e #ictor of one of the belligerents leads it to impose its will on the other. Imposed b the #ictor. En( o W"r 4(*(00I *'. C(00EDI Termination of war when used in pri#ate contracts refers to the formal proclamation of peace b the D' and not the cessation of hostilities between 0! and 2apan during the JJII. 4. Wh"t i$ the me"nin0 or !on!ept o &ti po$$i(eti$6 789II B"r; A. The problem concerning ownership of propert which ha#e changed hands during the course of the war are generall settled b the application of the rule of uti possidetis" b which each belligerent is

It is the surrender of militar troops" forts or districts in accordance with the rules of militar honor. TERMINATION aM b simple cessation of hostilities" without the conclusion of a formal treat of peace since no formal treat of peace is concluded" the problems concerning ownership of propert which ha#e changed hands during the course of the war are generall settled b the application of the rule of uti possidetis.

regarded as legall entitled to such propert as are actuall in its possession at the time hostilities ceased. Po$t+imini&m L'ee mo#ie/ ,The 3ladiator.M ( term borrowed from 0oman Law concept which meant that persons or properties captured or sei?ed and ta-en be ond LpostM the boundar LlimenM could be ensla#ed or appropriated" but upon return the reco#ered their former status. Mo(ern Pr"!ti!e To denote the doctrine that territor " indi#iduals and propert " after ha#ing come under the authorit of the enem " re#ert to the authorit of the original so#ereign ipso "acto upon reta-ing possession. Le0itim"te A!t$ o Mi+it"r* O!!&p"nt !ostliminium has no effects upon the acts of a militar occupant during the occupation which under international law it is competent to perform e.$. collection of ordinar taGes. =owe#er" appropriation of propert is not allowed to be performed b the militar occupant" hence" the ownership of the propert re#erts bacafter the militar occupanc without pa ment of compensation. 4. When i$ the prin!ip+e o po$t+imini&m "pp+ie(6 789I9 B"r; A. Jhere the territor of one belligerent state is occupied b the enem during war" the legitimate go#ernment is ousted from authorit . Jhen the belligerent occupation ceases to be effecti#e" the authorit of the legitimate go#ernment is automaticall restored" together with all its laws" b #irtue of the jus postli iniu .

EFFECTS OF WAR OUTBREA1. 0upture of diplomatic relations and termination of consular acti#ities 2. In enem persons 3. In enem properties 6. In trading and intercourse 8. In contracts 7. In treaties R&pt&re o (ip+om"ti! re+"tion$ J termin"tion o !on$&+"r "!ti'itie$ The respecti#e diplomatic en#o s are allowed to lea#e for their home countries. Jar also brings about the cessation of consular acti#it . The official residence of the en#o " the archi#es of the mission" and consular archi#es are usuall left under the protection of another foreign en#o or consul of another 'tate. On enem* per$on$ International law lea#es each belligerent free" within wide limits" to designate the persons whom it will treat as ha#ing enem character. Determin"tion o enem* !h"r"!ter aM territorial test enem character depends on the residence or domicile of the person concerned bM nationality test this is the preferred continental practice. The sub$ects of the belligerent are deemed enem persons regardless of where the are. cM activities test whether national or not" resident or not. Thus" sub$ects of a neutral 'tate ma be treated as enemies because of certain acti#ities where the participate. dM territorial or co ercial do icile test in matters pertaining to

economic warfare. eM controllin$ interest test this is the test as to corporations in addition to the place o" incorporation test. ( corporation is regarded as enem person if it/ 1M is incorporated in an enem terirot H or 2M is controlled b indi#iduals bearing enem character. R&+e$ or interment o enem* "+ien$ L1M to pro#ide for the interneesK safet and welfareH L2M to furnish ade>uate food and clothing L3M to pro#ide famil accommodations with due pri#ac and facilitiesH L6M to pro#ide facilities for religious" intellectual and ph sical acti#itiesH L8M to permit the use of their personal properties and financial resourcesH L7M to permit a degree of communication with the outside worldH L)M the refrain from eGcessi#e or inhuman penal and disciplinar measuresH L9M to ma-e transfers onl in a humane mannerH L5M to record and dul certif deaths" and to in>uire into deaths other than from natural causesH L1:M to release internees when the reasons for internment cease or when hostilities terminate. 1565 3E4E*( +I4*E4TII4 Locus standi (&rin0 o!!&p"tion The practice of states are #aried. 'ome consider the enem persons e= le$e during the whole duration of the hostilities. 'ome allowed them to sue and be sued sub$ect to so man eGceptions. In the !hilippines" when

an enem sub$ect is unable to sue during war" a right of action which has accrued to him before the war is deemed suspended for the duration of the war. %urther" war suspends the operation of the statute of limitations. On enem* propert* In general" goods belonging to enem persons are considered enem propert . public confiscated pri#ate se>uestered onl and sub$ect to return or reimbursement On tr"(in0 "n( inter!o&r$e The practice of belligerents in modern wars of forbidding b legislation all intercourse with alien enemies" eGcept as such as are permitted under license. The main ob$ect of such laws was to prohibit transactions which would benefit the enem or enem persons. On !ontr"!t$ International law lea#es each belligerent free to regulate this matter b his own domestic law. In general" it ma be stated that 'tates treat as #oid contracts which ma gi#e aid to the enem or add to his resources" or necessitate intercourse or communication with enem persons. On tre"tie$ Modern #iew is that war does 4IT ipso "acto terminate all treaties between belligerents. Treaties ma contain pro#isions to the effect that it will remain in force notwithstanding the eGistence of war. Treaties dealing with political matters" such as treaties of alliance" and with commercial relations are deemed abrogated b the outbrea- of war between the

parties thereto. CONDUCT OF WARFARE L'ee mo#ie/ ,The !atriot.M 3 B"$i! Prin!ip+e$ o I<L. 1. Militar necessit 2. =umanit 3. +hi#alr Do!trine o Mi+it"r* Ne!e$$it* ( belligerent is $ustified in resorting to all measures which are indispensable to bring about the complete submission of the enem " as soon as possible" b means of regulated #iolence not forbidden b con#entional or customar rules of war and with the least possible loss of li#es" time and mone . Prin!ip+e o <&m"nit* 1T=E ET=I+' I% J(0%(0E; %orbid the use of weapons which cause indiscriminate destruction or in$ur or inflict unnecessar pain or suffering. Prin!ip+e o Chi'"+r* This principle re>uires the belligerents to gi#e proper warning before launching a bombardment or prohibit the use of perfid in the conduct of hostilities. This principle does not prohibit espiona$e. 4. Who !on$tit&te !om2"t"nt$6 A. The are the following/ 1M Re0&+"r For!e$ 7RF; the arm " na# " and air force. 4on-combatant members of the armed forces include/ chaplains" arm ser#ices and medical personnel. 2M Irre0&+"r For!e$ 7IF; also -nown as franc4tire&r$ consist of militia and

#oluntar corps. The are treated as lawful combatants pro#ided that/ aM the are commanded b a person responsible for his subordinatesH bM the wear a fiGed distincti#e sign recogni?able for his subordinatesH cM the carr arms openl H and dM the conduct their operations in accordance with the laws and customs of war. G&eri++" w"r "re considered as I%. =ostilities conducted b armed bodies of men who do not form part of an organi?ed arm . 3; Non#pri'i+e0e( Com2"t"nt$ 7NPC; indi#iduals who ta-e up arms or commit hostile acts against the enem without belonging to the armed forces or forming part of the irregular forces. If captured" the are not entitled to the status of prisoners of war. Mer!en"rie$ considered as 4!+ Those who" ha#ing been recruited in another countr " from militar forces for ,personal gain". are not co#ered b protection. Spie$ ( soldier emplo ing false pretenses or acts through clandestine means to gather information from the enem . ( soldier not wearing uniform during hostilities runs the ris- of being treated as a sp and not entitled to prisoner of war status. Jhen caught" the are not to be regarded as prisoners of war. Militar 'couts are not spies. A; Le'ee en m"$$e

Ta-es place when the population spontaneousl rises in mass to resist the in#ader. The en$o pri#ileges due to armed forces. NOTE. :nly );, 4; and Levee ay !e treated as prisoners o" #ar under 'rotocol 4 o" 10GG. See this revie#er*s section on ':9. Re$tri!tion$ on we"pon$ !rohibited weapons/ 1M eGplosi#e bullets 2M use of dum-dum bullets 3M emplo ment of pro$ectiles whose onl ob$ect is diffusion of asph Giating" poisonous" or other gases" and all analogous li>uids" materials or de#ices 6M the use of bacteriological methods of warfare. 8M The la ing of ,contact. mines 7M EGplosi#es from balloons 3 Proto!o+$ on Re$tri!tion$ !rotocol I on %ragmentation Jeapons !rotocol II on Treacherous Jeapons !rotocol III on Incendiar Jeapons Other 4&e$tion"2+e we"pon$ 1M %uel eGplosi#e weapons that -ill b air shoc- wa#es 2M %lame blast munitions that combine fuel air eGplosi#e effect with radiation in chemical fireball munitionsH 3M Laser weapons which cause burns and blindness 6M Infrasound de#ices that cause damage to the central ner#ous s stem. LIMITATION ON TARGETS OF ATTACInl militar targets are sub$ect to attacb the armed forces of a belligerent as a basic rule of warfare. Li-ewise" certain

places and ob$ecti#es are not sub$ect to attac-" such as/ 1M Ne&tr"+i1e( "re"$ or 1one$ these are ?ones in the theater of operations established b special agreement between the belligerents for treatment of the wounded and ci#ilians. EF/ (land 4slands, the Spit.!er$en, the 3a$ellan Straits, the Sue. Canal and 'ana a Canal. 2M Open town$ also -nown as ,non defended localit .. ( place free of combatants. 3M C&+t&r"+ propert* "n( p+"!e$ o wor$hip 6M Ci'i+ (e en$e includes personnel" buildings and assets" clearl indicated b a !lue trian$le on an oran$e bac-ground distincti#e sign. 8M D"n0ero&$ in$t"++"tion$ dams" di-es" or nuclear electric plants. 7M Ci'i+i"n$ "n( per$on$ hors de com#at % persons hors de co !at are those who are either wounded or" for other reasons" ha#e permanentl $oined the ci#ilian population. )M P"r"!h&ti$t$ those who bail out from aircra"ts in distress. Must onl be treated as !IJ. 9M <o$pit"+$> ho$pit"+ $hip$ "n( me(i!"+ &nit$ a clear mar-ing or a 0ed +ross to show their status) 5M Foo( $&pp+ie$ "n( !rop$ FORBIDDEN MET<ODS No 4&"rter such orders impl ing that no survivors are to be left after

an attac-. St"r'"tion Repri$"+$ are not reprisals as a form of self-help" instead" belligerent reprisals are of a completel different t pe. These are acts of #engeance b a belligerent directed against groups of ci#ilians or !IJs in retaliation of or response to an attac- b other ci#ilians against the belligerent. Per i(* on tre"!her* this includes/ aM Improper use of white flag bM %eigning surrender or pretending to ha#e been wounded or to ha#e a ci#ilian status cM Dsing the uniform of the enem dM +laiming neutral status eM %alsel fl ing the 0ed +ross flag fM Ma-ing hospitals" churches and the li-e as shield from attac-. gM (rea bombing PRISONERS OF WAR 7POW; The following persons captured must be treated as !IJ/ 1M members of the armed forces" as well as members of militias or #olunteer corps forming part of such armed forcesH 2M members of other militias or #olunteer groups" including those of organi?ed resistance mo#ements" sub$ect to compliance with certain conditionsH 3M members of regular armed forces professing allegiance to a go#ernment or an authorit not recogni?ed b the capturing 'tateH

6M #arious categories of persons accompan ing an arm unit" such as ci#ilian members of militar aircraft crew" war correspondents" etc." pro#ided the are authori?ed to be with the arm or unitH 8M members of the crew of merchant #essels and ci#ilian aircraft who do not benefit b more fa#orable treatment under an other pro#isions of internal lawH 7M members of the population of nonoccupied territor who ta-e up arms as a levee en asse against an in#ading arm . 4. Wh"t "re the !ore !rime$ in I<L6 A. The core crimes in I=L are genocide" crimes against humanit " war crimes and aggression. These core crimes are specified in the 'tatues of the I++ Lor the 0ome 'tatute for an I++M which describes them as the most serious crimes of concern to the international communit as a whole. These crimes are within the $urisdiction of the I++. 4ITE/ (lthough the !hilippines has signed but not et ratified the 0ome 'tatute establishing the I++" the I++ 'tatuteKs and definitions of the core crimes are authoritati#e statements for us since the are practicall lifted from customar international law sources and from the 3ene#a +on#entions of 1565 and other treaties to which we are parties. L42LB ( ;ield 8uide to the %asics, The 7FFG 3etro!an@ Lecture on 4nternational La#, 77 Nov. 7FFG !y (ssociate &ustice (dol"o S. (.cunaM 89A9 Gene'" Con'ention III The rules of !IJ applies to prisoners of war who are captured in a properl declared war or an other -ind of ,armed

conflict". e#en if an of the combatant powers do not recogni?e the eGistence of a state of war and e#en though these conflicts are ,not of an international character.. 4. I$ 0&eri++" w"r "re re!o0ni1e( &n(er Intern"tion"+ L"w "n( m"* " !"pt&re( 0&eri++" (em"n( tre"tment " or(e( " pri$oner o w"r &n(er the 89A9 Gene'" Con'ention6 E=p+"in) A. Pes. Dnder (rticle 6 of the 1565 3ene#a +on#ention on !risoners of Jar" guerilla warfare" which consists in hostilities conducted in territor occupied b the enem b armed bodies of men who do not form part of an organi?ed arm " is recogni?ed. 3uerillas are entitled to be treated as prisoners of war pro#ided the fulfill the following conditions/ 1M The are commanded b a person responsible for his subordinatesH 2M The ha#e a fiGed distincti#e emblem recogni?able at a distanceH 3M The carr arms openl H and 6M The conduct their operations in accordance with the laws and custom of war. 789:, B"r; When POW $ho&+( 2e ret&rne( Dpon cessation of war or hostilities. =owe#er" !IJs facing criminal trial ma be detained until the termination of the proceedings or punishment. When i$ " Territor* Deeme( Un(er Mi+it"r* O!!&p"tion6 Territor is deemed to be occupied when it is placed as a matter of fact under the authorit of the hostile arm . NOTE. Celligerent occupation is different from Militar occupation. Ri0ht$ O D&tie$ o " Be++i0erent O!!&p"nt

to continue orderl go#ernment to eGercise control o#er the occupied territor and its inhabitants. NOTE. The belligerent occupant cannot compel the inhabitants to swear allegiance to him. 4. C"n the 2e++i0erent o!!&p"nt impo$e "n( !o++e!t t"=e$ or !ontri2&tion$6 A. ?ES) Dnder the =ague 0egulations" the occupant is empowered to collect taGes" dues and tolls" as far as possible in accordance with ,the rules of assessment and incidence in force". and he is bound to defra the ,eGpenses of administration. out of the proceeds. Contri!utions are mone impositions on the inhabitants o#er and abo#e such taGes. Ne&tr"+it* Ne&tr"+it* (n attitude o" i partiality adopted b third 'tates towards belligerents and recogni?ed b the belligerents" such attitude creating rights and duties between the impartial 'tates and the belligerents. Ne&tr"+it* '$) Ne&tr"+i1"tion 789:: B"r; Ne&tr"+it* Ne&tr"+i1"tion Ibtains onl during ( condition that war applies in peace and war ( status created ( status created b under international means of a treat law" b means of a stand on the part of a state not to side with an of the parties at war Crought about b a +annot be effected unilateral b unilateral act declaration b onl but must be neutral state recogni?ed b other states. integrit are guaranteed b an

international con#ention on the condition that such state obligates itself ne#er to ta-e up arms against an other state" eGcept for self-defense" or enter into such international obligations as would indirectl in#ol#e it in war. ( state see-s neutrali?ation where it is wea- and does not wish to ta-e an acti#e part in international politics. The power that guarantees its neutrali?ation ma be moti#ated either b balance of power considerations or b desire to ma-e the state a buffer between the territories of the great powers. Ri0ht$ "n( D&tie$ o Ne&tr"+$ O Be++i0erent$ The nature of their rights are correlative" that is" a right of a neutral gi#es rise to a corresponding dut on the part of the belligerents" and a right of a belligerent corresponds to a dut of the neutral. 1M (&t* o "2$tention 7ne ative; should not gi#e assistance" direct or indirect" to either belligerent in their war efforts. 2M (&t* o pre'ention 7)ositive; places the neutral 'tate under obligation to pre#ent its territor from becoming a base for hostile operations b one belligerent against the other. 3M (&t* o "!5&ie$!en!e 7)assive; re>uires a neutral to submit to acts of belligerents with respect to the commerce of its nationals if such acts are warranted under the law of nations. PASSAGE OF BELLIGERENT WARS<IPS ( neutral 'tate ma allow passage of belligerent warships through the maritime

belt forming part of its territorial waters. Jhat is prohibited is the passage upon its national ri#ers or canals. The eGception" howe#er" are the canals which ha#e become international waterwa s Lsuch as the 'ue? +anal and the !anama +analM. PRO<IBITION OF WARLI-E ACTIVITIES IN NEUTRAL TERRITOR? The =ague +on#ention 4o. FIII pro#ides that ,belligerents are forbidden to use neutral ports and waters as base of na#al operations against their ad#ersaries.. Thus" a neutral must pre#ent belligerent warships from cruising within its maritime belt "or the purpose o" capturin$ ene y vessels as soon as they leave it. In the e#ent that a neutral port or roadstead is used for repairs" the neutral state ma allow it as long as such repairs are absolutel necessar to render them seaworth " not repairs which would add in an wa to their fighting force. (lso" belligerent warships cannot ta-e shelter in a neutral port for an undue length of time in order to e#ade capture. The maGimum length of sta permissible is 26 hours" unless the neutral state has prescribed otherwise in their municipal laws or unless the nature of repairs to be done or the stress of weather would re>uire a longer time. 4eutral ports ma not become places of as lum or permanent rende?#ous for belligerent pri?es. The rule is that a pri?e ma not be brought into a neutral port" eGcept under certain circumstances. NEUTRAL AS?LUM TO LAND AND NAVAL FORCES OF BELLIGERENT POWK$ who escape into neutral territor or are brought into neutral territor b

enem troops who themsel#es ta-e refuge there shall become free ipso "acto" and the neutral 'tate shall lea#e such prisoners at libert " but if it allows them to remain in its territor " it ma assign them a place of residence so as to pre#ent them from re$oining their forces. (s regards &0iti'e $o+(ier$" the neutral 'tate is not obliged to grant them as lum" although it is not forbidden to do so. Celligerent aircraft and their personnel" if the are compelled to land in neutral territor " must be interned. In case a belligerent men-of-war refuses to lea#e neutral port in which it is not entitled to remain" the neutral 'tate concerned has the right to ta-e such measures as it deems necessar to render the ship incapable of putting to sea for the duration of the war. Jhen the belligerent ship is detained b a neutral 'tate" the officers and crew are li-ewise interned" either in the ship itself or in another #essel or on land" and ma be sub$ected to such restrictions as ma be necessar . RIG<T OF ANGAR? ( right of a belligerent to re-uisition and use" sub$ect to certain conditions" or e#en to destro in case of necessit " neutral propert found in its territor " in enem territor or in the high seas. 3 Con(ition$ a. there must be an urgent need for the propert in connection with the offensi#e or defensi#e warH b. the propert is within the territor or $urisdiction of the belligerentH c. compensation must be paid to the owner. NOTE. ( neutral sub$ect within the

territor of a belligerent is not entitled to indemnit from either side against the loss of propert occasioned b legitimate acts of war. BLOC-ADE (n operation of war carried out b belligerent seacraft or other means" for the purpose of pre#enting ingress and egress of #essels or aircraft of all nations to and from the enem coast or an part thereof. CONTRABAND ( term used to designate those goods which are susceptible of use in war and declared to be contraband b a belligerent" and which are found b that belligerent on its wa to assist the war operations or war effort of the enem . 'TI4E 3e(uisites+ aM susceptible of use in war bM destined for the use of a belligerent in its war effort. -in($ o Contr"2"n($ aM a!solute goods which b their #er nature are intended to be used in war. bM conditional goods which b their nature are not destined eGclusi#el for use in war" but which are ne#ertheless of great #alue to a belligerent in the prosecution of the war. e.$. foodstuff" clothing" fuel" horses" etc. <o$ti+e (e$tin"tion In case of absolute contraband it is necessar onl to pro#e that the goods had as their destination an point within enem or enem -controlled territor . In the case of conditional contraband" it is re>uired that the goods be destined to the authorities or armed forces of the enem .

In both" the destination as of sei.ure is critical.

o ent o"

Do!trine o !ontin&o&$ 'o*"0e 3oods which are destined to a neutral port cannot be regarded as contraband of war. Con$e5&en!e$ o !ontr"2"n( !"rri"0e 4eutral 'tates are not under obligation to pre#ent their sub$ects from carr ing contraband to belligerents. =owe#er" 4eutral 'tates ha#e the duty to ac-uiesce in the suppression b belligerents of trade in contraband. Do!trine o In e!tion Dnder the Critish and (merican practice" the penalt for carriage of contraband would be confiscation of the contraband cargo. Innocent cargo belonging to the same owner would also be sub$ect to confiscation. Innocent cargo belonging to another owner would be released" but without compensation for dela and detention in the !ri?e +ourt. Do!trine o U+tim"te Con$&mption 3oods intended for ci#ilian use which ma ultimatel find their wa to and be consumed b the belligerent forces are also liable to sei?ure on the wa . Do!trine o U+tim"te De$tin"tion The liabilit of contraband to capture is determined not b their ostensible but b their real destination. E#en if the #essel stops at an intermediate neutral port" it will still be considered as one continuous #o age pro#ided it can be shown that its cargo will ultimatel be deli#ered to a hostile destination. UNNEUTRAL SERVICE Denotes carriage b neutral #essels of certain persons and dispatches for the

enem and also the ta-ing of direct part in the hostilities and doing a number of other acts for the enem . ( neutral #essel engaged in unneutral ser#ice ma be captured b a belligerent and treated" in general" in the same wa as neutral #essels captured for carriage of contraband. RIG<T OF VISITATION The right of belligerents LeGercised onl b men-of-war and militar aircraft of belligerentsM to #isit and" if it be needed" to search neutral merchantmen for the purpose of ascertaining whether the reall belong to the merchant marine of neutral 'tates" and if this is found to be the case" whether the are attempting to breabloc-ade" carr ing contraband or rendering unneutral ser#ice. Inl pri#ate or merchant #essels ma be sub$ected to #isit and search. CAPTURE Ta-es place if the cargo" or the #essel" or both" are liable to confiscation" or if gra#e suspicion re>uires further search which can onl be underta-en in a port. TRIAL BEFORE A PRILE COURT The captured #essel and cargo" must be brought before a !ri?e +ourt for trial.