PUBLIC INTERNATIONAL LAW NOTES COURSE OUTLINE I. PRELIMINARY CONSIDERATIONS CONSIDERATIONS
A. Brief history of Public International Law B. Definition of International Law
- body of rules & principles which are recognized as legally binding and governs the relati relations ons of states states and other other entit entities ies with with one another another (as betwee between n intern internati ational onal organizati organizations ons between between internation international al organizati organizations ons and states states between between internati international onal organizations and states and the people!. C. Funtion! of International Law
". $. '. . ). *.
define definess the the e#is e#isten tence ce of of stat states es provid provides es fra%e fra%ewor wor of diplo%a diplo%atic tic relat relation ionss governs governs intern internati ational onal agree% agree%ent entss sets sets forth forth rules rules for inter internat nation ional al co%%erc co%%ercee governs governs indivi individual dual hu% hu%an an righ rights ts regulates regulates protecti protection on of the global global environ%e environ%ent nt (air (air land sea sea and global global resources! +. "ITAL FUNCTION , eli%inates ele%ents of unlawful force in the solution of hu%an conflicts and provides basis for the orderly %anage%ent of international relations social progress
D. Foun#ation! of International Law
". Principle of co%ity $. Principle of reciprocity%utuality '. Principle of independence . Principle of e/uality of states E. T$eorie! A%out International Law &. Natural Law S$ool
- there are certain nor%ative principles that are true o r 0self evident1 and which e#ists independently of their codification or enforce%ent by hu%an beings. - naturalists %aintain that the law of nations is binding upon states because it is a branch of great law of nature the su% of those principles which ought to control hu%an conduct being founded on the very nature of %an as a rational and social being. '. Po!iti(i!t S$ool
- the basis of obligation of international law is founded in the CONSENT OF STATES . - 2his school of thoughts provides that consent of states is given, a. 2acitly 2acitly 3 in case of custo%ary international law b. 4#pressly 3 in case of conventional law c. Presu%ed 3 in case of 5eneral Law of 6ations ). Eleti*+roatian S$ool
- occupy %iddle position between the natural and positivist school - recognizes that international law is in part a product of natural law and at the sa%e ti%e the positive consent of states to be bound by its rules. F. Ba!i! of International Law*S$ool! or T$eorie! in t$e Stu#, of International Law
2he schools of study of international law are the basis of the obligation in international law. +. T$eorie! a! to t$e Ba!i! of International Law
". Diret Con!ent - international law is based upon the direct consent of 7tates upon their individual acceptance of its principles and rules. '. I-lie# Con!ent
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a fiction fiction to accou account nt for the the accept acceptanc ancee of the great great body body of gener general al princi principle pless and specific rules that had co%e to for% the body of u!to-ar, law.
). Mutualit, of Intere!t
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internation international al law law is a sub8ecti sub8ective ve law law its its binding binding force depends upon %utuali %utuality ty of interest which could only be %aintained by altering fro% ti%e to ti%e such rules as it %ight be no longer to the interest of the parties to observe.
/. Nee!!it,
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the fact fact that nations nations have have co%%on co%%on interest interest constitutes constitutes the actual actual co%%unity co%%unity of states and at the sa%e ti%e i%peratively de%ands a rule of law so that international law %ay be said to be based upon the very necessity for its e#istence.
0. Two Main Bran$e! of International Law
". Public International Law (Law of 6ations! $. Private International Law (9onflicts of Law! I. Bran$e! of International Law
". :u%an rights law $. :u%anitarian law '. ;efugee law . 9ri%inal law ). 4cono%ic law *. 4nviron%ental law 1. +eneral Cla!!ifiation! of Pu%li International Law
". 9onsular law $. . International trade law "?. law of state responsibility "". ;ules according to higher law "$. @6 9onventions on the law of the 7ea "'. @se of force continuu% 2. Pu%li International Law (! Pri(ate International Law Pu%li International Law 3Law of Nation!4
- regulates the relationship between states and international entities - concerned with /uestions of rights between nations. Pri(ate International Law 3Conflit! of Law4
- regulates co%ity of states in giving effect in one to the %unicipal laws of another relating to private persons. - PRINCIPLE5 One ountr, 6i(e! re!et an# 6i(e effet to t$e law! of anot$er !o far a! an %e #one on!i!tentl, wit$ it! own intere!t. L. I! International Law a True Law7
- based on popular views it is not a true law because,
law of nation lacs the e/uality of positive authority or co%%and. no legal dutyobligation of obedience on the part of those who% it is addressed with no courts to interpret and enforce international law. no penalty prescribed for disobedience with lac of physical power to enforce obedience. -
International law is recognized as law of practice sanctions for failure to co%ply though indirect is si%ilar to %unicipal law. includes force of public opinion self help intervention by third party states sanctions of international organizations such as the @6 and as a last resort 3 A;.
M. Cla!!ifiation of International Law
". 9usto%ary $. 9onventional '. 5eneral International Law N. Pu%li International Law (! Muniial Law
PUBLIC INTERNATIONAL LAW - deals with statesC relations - sources are custo%s and treaties
- law is not a law above but between sovereign states - laws not codified e#cept on particular sub8ects - penaltysanction is addressed by pressure put upon a state to behave in good faith diplo%acy retaliations or severance of econo%ic ties war as an act of self defense (as recognized by the @6!. Dnly strong countries %ay i%pose these sanctions to wea countries in reality.
MUNICIPAL LAW - deals with internal affairs of a state - sources are custo%s and precedents grown within the stateCs 8urisdiction and legislation enacted by its law %aing body. - law of sovereign over individuals sub8ect to state authority. - laws are codified
- penalty %ay be in the for% of i%prison%ent (in violation of the penal code! or sanctions of da%ages and ad%inistrative sanctions.
88 In International Tri%unal t$e international law will re(ail o(er Muniial law. 88 In a -uniial tri%unal9 one -u!t #i!tin6ui!$ if onflit! in(ol(e international law an# forei6n international law in w$i$ a!e international law re(ail!:
88 Muniial law re(ail! if onflit! in(ol(e onflit! %etween -uniial law an# international law.
O. Relation Between International Law ; Muniial Law &. Moni!-
- views international law and national law as part of single legal syste% with do%estic law derived fro% the broader fra%ewor provided by international law. '. Duali!-
- considers international law and internal law of states as wholly separate legal syste%s the for%er creating obligations only a%ong sovereign nations and the latter allowing each state to deter%ine the %eans and for% by which it carries our its obligations. P. ;elation between Public International law and Philippine Eunicipal Law <. Conflit! %etween Pu%li International Law an# Muniial Law
- Eunicipal law when in conflict with PIL is given effect in %unicipal courts the reason being that such courts are organs of %unicipal law and are accordingly bound by it in all circu%stances. - the fact that international law has been %ade part of the law of the land does not %ean to i%ply it is pri%ary over national or %unicipal law. - in
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re/uires legislative action to %ae the treaty enforceable in the %unicipal sphere. Eunicipality law e=re!!l, adopts an international law thru an act of legislation. T$e #otrine o%!er(e# in treatie!
DOCTRINE OF INCORPORATION
- 9onsiders rules of international law as for%ing part of the law of the land and no further legislative action is needed to %ae such rules applicable in the do%estic sphere. - t$e #otrine o%!er(e# in u!to-ar, international law.
ADOPTION DOCTRINE
- Eunicipality law i-lie#l, adopts an international law. 0ARMONI>ATION DOCTRINE
-International law is applied only when appropriate. RESTRICTED AUTOMATIC DOCTRINE
- Based on Article $ section $ of 9onstitutional provision in the Philippines 0Philippines adopts the generally accepted principles of international law as part of the law of the land.1 It stresses the auto%atic adoption of international law but involves re!trition t$at !u$ auto-ati a#otion of international law i! onl, a! to 6enerall, aete# rinile! of international law. R. Conflit %etween a Treat, an# a Con!titution
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in states where 9onstitution is the highest law of the land both statutes and treaties %ay be invalidated if they are in conflict with the 9onstitution. In the Philippines the 7upre%e 9ourt %ay declare a treaty unconstitutional if it is in conflict with the 9onstitution.
S. Struture of Pu%li International law
". Law of 2reaties and other international agree%ents $. Law on Ar%ed 9onflicts '. ;ubrics of international delin/uencies or torts . International responsibilities of 7tates 2. the ;ole of Public International Law @. orld Politics F. ;elated 9ases i.
T$e Inter$an#el Ca!e 3Dei!ion of t$e International Court of 1u!tie9 Mar$ '&9 &?/?4
ii.
2uro#a ( 1alan#oni9 @) P$il && Fat!
7hinegori Guroda a for%er Lieutenant-5eneral of the Hapanese I%perial Ar%y and 9o%%anding 5eneral of the Hapanese I%perial orces in the Philippines was charged before the Philippine Eilitary 9o%%ission for war
cri%es. As he was the co%%anding general during such period of war he was tried for failure to discharge his duties and per%itting the brutal atrocities and other high cri%es co%%itted by his %en against nonco%batant civilians and prisoners of the Hapanese forces in violation of of the laws and custo%s of war. Guroda in his petition argues that the Eilitary 9o%%ission is not a valid court because the law that created it 4#ecutive Drder 6o. *= is unconstitutional. :e further contends that using as basis the :ague 9onventionCs ;ules and ;egulations covering Land arfare for the war cri%e co%%itted cannot stand ground as the Philippines was not a signatory of such rules in such convention. urther%ore he alleges that the @nited 7tates is not a party of interest in the case and that the two @7 prosecutors cannot practice law in the Philippines. I!!ue
".hether or not 4#ecutive Drder 6o. *= is constitutional $.hether or not the @7 is a party of interest to this case '.hether or not Atty. Eelville 7. :ussey and ;obert Port is allowed to practice law profession in the philippines. Rulin6
2he 7upre%e 9ourt ruled that 4#ecutive Drder 6o. *= creating the 6ational ar 9ri%es Dffice and prescribing rules on the trial of accused war cri%inals is constitutional as it is aligned with 7ec 'Article $ of the 9onstitution which states that 02he Philippines renounces war as an instru%ent of national policy and adopts the generally accepted principles of international law as part of the law of the nation.1 2he generally accepted principles of international law includes those for%ed during the :ague 9onvention the 5eneva 9onvention and other international 8urisprudence established by @nited 6ations. 2hese include the principle that all persons %ilitary or civilian who have been guilty of planning preparing or waging a war of aggression and of the co%%ission of cri%es and offenses in violation of laws and custo%s of war are to be held accountable. In the doctrine of incorporation the Philippines abides by these principles and therefore has a right to try persons that co%%it such cri%es and %ost especially when it is co%%itted againsts its citizens. It abides with it even if it was not a signatory to these conventions by the %ere incorporation of such principles in the constitution. 2he @nited 7tates is a party of interest because the country and its people have been e/ually if not %ore greatly aggrieved by the cri%es with which the petitioner is charged for. By virtue of 4#ecutive Drder 6o. *= the Eilitary 9o%%ission is a special %ilitary tribunal and that the rules as to parties and
representation are not governed by the rules of court but by the very provisions of this special law. Dn the 'rd issue the court ruled that the appoint%ent of the two A%erican attorneys is not violative of our national sovereignty. It is only fair and proper that the @.7. which has sub%itted the vindication of cri%es against her govern%ent and her people to a tribunal of our nation should be allowed representation in the trial of those very cri%es. 2he lest that we could do in the spirit of co%ity is to allow this representation in said trial. iii.
I$on6 ( 0ernan#e9 Ma, )&9 &?
acts, ;A ""=? 0An Act to ;egulate 2he ;etail Business1 prohibits foreigners and foreign owned corporations to engage in the retail businesstrade in the Philippines. Petitioner assails the Act contending it violates the 2reaty of A%ity between the Philippines and 9hina and is unconstitutional. Issue, hether or not ;A ""=? a valid e#ercise of police power of the 7tate. :eld, 2he court held that ;A ""=? is a valid e#ercise of the police power of the 7tate since such sovereign power of the 7tate could not be bargained through any 2reaty or contract especially when the intent of such legislation is to re%edy a real and actual danger to the national econo%y due to the increasing do%inance and control of aliens in the retail trade in the country. iv.
P$il. A!!oiation of Free La%or Union! 3PAFLU4 et al. ( Seretar, of La%or et al.9 Fe%ruar, '9 &??
v.
Pauete 0a%ana a!e9 &' US 3&?4
Pa/uete :abana. 2he Lola "+) @.7. *++ (">??! was a land%ar @nited 7tates 7upre%e 9ourt case that reversed an earlier court decision allowing the capture of fishing vessels under Prize (law!. Its i%portance rests on the fact that it integrated 9usto%ary international law with A%erican law perhaps the /uintessential position of those who hold a %onist perspective of international law. BaG6roun# of t$e a!e
In April "=>= two fishing vessels the Pa/uete :abana and the Lola separately left 9uban ports in :avana in order to fish. 2he two vessels were eventually captured by @7 6aval vessels as part of Ad%iral illia% 2. 7a%psonJs blocade of 9uba who was ordered to e#ecute the blocade Jin pursuance of the laws of the @nited 7tates and the law of nations applicable to such cases.J 2he vessels were placed within 9ubaJs territorial waters at the onset of the
7panish-A%erican ar and then taen to Gey est where both vessels were eventually auctioned by the district court. Ad%iral 7a%pson 8ustified the seizures by stating that %ost fishing vessels flying under the 7panish banner were %anned by e#cellent sea%en Kliable for further serviceK as naval reserves an asset that could eventually be used against @7 interests in the 7panish-A%erican ar. 2he owners of the vessels however %ade an appeal to the circuit courts citing a long held tradition by nations of e#e%pting fishing vessels fro% prize capture in ti%es of war. 2his KtraditionK a pri%ary e#a%ple of custo%ary international law dates bac fro% an order by :enry IF in "?' and has %ore or less been observed by a large %a8ority of 7tates ever since. At the ti%e of capture both vessels had no evidence of aiding the ene%y and were unaware of the @7 naval blocade. 6o ar%s were found on board and no atte%pts were %ade to either run the blocade or resist capture. T$e ourtH! #ei!ion
2he @nited 7upre%e 9ourt which cited lengthy legal precedents established to support the e#istence of a custo%ary international law that e#e%pted fishing vessels fro% prize capture eventually found the capture of both vessels as Kunlawful and without probable causeK reversed the
Meoff ( Diretor of Pri!on! ? P0IL 3&?&4 Fat!5
2his is a second petition for habeas corpus by Boris Ee8off the first having been denied in a decision of this 9ourt on Huly '? ">>. K2he petitioner Boris Ee8off is an alien of ;ussian descent who was brought to this country fro% 7hanghai as a secret operative by the Hapanese forces during the latterJs regi%e in these Islands. @pon liberation he was arrested as a Hapanese spy by @. 7. Ar%y 9ounter Intelligence 9orps. 2hereafter the PeopleJs 9ourt ordered his release. But the = that Ee8off had entered the Philippines illegally in "> without inspection and ad%ission by the i%%igration officials at a designated port of entry and therefore it ordered that he be deported on the first available transportation to ;ussia. 2he petitioner was then under custody he having been arrested on Earch "= ">=. In Dctober ">= after repeated failures to ship this deportee abroad the authorities %oved hi% to Bilibid Prison at Euntinglupa where he has been confined up to the present ti%e inas%uch as the 9o%%issioner of I%%igration believes it is for the best interests of the
country to eep hi% under detention while arrange%ents for his departure are being %ade. 2wo years having elapsed since the aforesaid decision was pro%ulgated the 5overn%ent has not found ways and %eans of re%oving the petitioner out of the country and none are in sight although it should be said in fairness to the deportation authorities that it was through no fault of theirs that no ship or country would tae the petitioner. I!!ue5
hether or not Boris Ee8off should be released fro% prison pending his deportation. Rulin65
2he protection against deprivation of liberty without due process of law and e#cept for cri%es co%%itted against the laws of the land is not li%ited to Philippine citizens but e#tends to all residents e#cept ene%y aliens regardless of nationality. Eoreover 7ec. ' Art. II of the 9onstitution of the Philippines Kadopts the generally accepted principles of international law as part of the law of the 6ation.K And in a resolution entitled K@niversal = the right to life and liberty and all other funda%ental rights as applied to all hu%an beings were proclai%ed. It was there resolved that Kall hu%an beings are born free and e/ual in degree and rightsK (Art. "! that Keveryone is entitled to all the rights and freedo% set forth in this ! etc. Pre%ises considered the writ will issue co%%anding the respondents to release the petitioner fro% custody upon these ter%s, that the petitioner shall be placed under the surveillance of the i%%igration authorities or their agents in such for% and %anner as %ay be dee%ed ade/uate to insure that he eep peace and be available when the 5overn%ent is ready to deport hi%. 2he surveillance shall be reasonable and the /uestion of reasonableness shall be sub%itted to this 9ourt or to the 9ourt of irst Instance of Eanila for decision in case of abuse. 6o costs will be charged. source, http,rabbit-icecold.blogspot.co% vii.
Re,e! ( Ba6at!in6 +R no. )9 Oto%er '9 &?@) Fat!
;etired Hustice Hose B.L. ;eyes in behalf of the Anti-Bases 9oalition sought for a per%it fro% the 9ity of Eanila to hold a peaceful %arch and rally on Dctober $* ">=' starting fro% Luneta to the gates of the @nited 7tates e%bassy. 2he ob8ective of the rally was to peacefully protest the re%oval of all foreign %ilitary bases and to present a petition containing such to a representative of the 4%bassy so it %ay be delivered to the @nited 7tates A%bassador. 2his petition was to initially co%pel the Eayor of the 9ity of Eanila to %ae a decision on the application for a per%it but it was discovered that a denial has already been sent through %ail. It also included a provision that if it be held so%ewhere else per%it %ay be issued. 2he respondent %ayor alleges that holding the rally in front of the @7 4%bassy is a violation of the resolutions during the Fienna 9onvention on *" and of which the Philippines is a signatory. In the doctrine of incorporation the Philippines has to co%ply with such generally accepted principles of international law as part of the law of the land. 2he petitioner on the other hand contends that the denial of the per%it is a violation of the constitutional right of the freedo% of speech and e#pression.
I!!ue hether or not the Anti-Bases 9oalition should be allowed to hold a peaceful protest rally in front of the @7 4%bassy
Rulin6 2he 7upre%e 9ourt ruled to allow the rally in front of the @7 4%bassy to protect the e#ercise of the rights to free speech and peaceful asse%bly and on the ground that there was no showing of the e#istence of a clear and present danger of a substantive evil that could 8ustify the denial of the per%it. 2hese rights are not only assured by our constitution but also provided for in the @niversal
7ource, http,pil-rizalyn.blogspot.co%$??=?*8bl-reyes-vs-bagatsing-gr-no*)'**.ht%l viii.
0ea# Mone, a!e!9 E#,e ( Ro%ert!on &&' US @ 3&@@/4 Fat!5
In "==$ the 9ongress passed an act providing that a duty of fifty cents should be collected for each and every passenger who was not a citizen of the @nited 7tates co%ing fro% a foreign port to any port within the @nited 7tates. Individuals and stea%ship co%panies brought suit against the collector of
custo%s at 6ew or Er. : ;obertson for the recovery of the su%s of %oney collected. 2he act was challenge on the grounds that it violated nu%erous treaties of the @7 govern%ent with friendly nations. I!!ue5
D6 the act is void because of the conflict with the treaty.
Rulin65
A treaty is a co%pact between independent nations which depends for its enforce%ent upon the interest and honor of the govern%ents that are parties to a treaty. 2reaties that regulate the %utual rights of citizens and sub8ects of the contracting nations are in the sa%e category as acts of 9ongress. hen these rights are of such a nature as to be enforced by a court of 8ustice the court resorts to the treaty as it would to a statute. :owever a constitution gives a treaty no superiority over an act on congress. In short so far as a treaty %ade by the @nited 7tates with any foreign nation can beco%e the sub8ect of 8udicial cognizance in the courts of this country it is sub8ect to such acts as 9ongress %ay pass for its enforce%ent %odification or repeal. ix.
W$itne, ( Ro%ert!on &'/ US &? 3&@@@4 Fat!5
Eerchants were i%porting sugar fro% 7an '* in duties. Eerchants then brought this clai% to get bac the duties paid. Eerchants (P! argued that the treaty btwn @7 and 7an
I!!ue5
hether a treaty supersedes conflicting acts of 9ongress. -6ot necessarily both are binding.
0ol#in6 , Affir%ed for <.
Rea!onin6 , Both self-e#ecuting treaties and acts of 9ongress are considered supre%e laws of the land and both should have effect. Hustice ields says that when they conflict with each other Kthe one last in date will control the other.K 7ince the acts of 9ongress were dated last they control. :e also says that if the country with which the treaty is %ade is dissatisfied with the action of the @7 legislative dept then they %ay present a co%plaint to the e#ecutive had of the govt. ;@L4, In the case of a conflict btwn a federal statute and a treaty the one last in date will control.
6otes N :ierarchy - last in ti%e rule N :ere the act of congress has tru%ped an earlier treaty N "$whitney-v-robertson-"$us-">?-"===.ht%l II. SOURCES OF PUBLIC INTERNATIONAL LAW A. Soure! of Pu%li International Law a! alie# %, t$e International Court of 1u!tie Diret Soure! i. International Con(ention! an# Treatie! - %ost abundant sources of PIL - between parties of treaties the stipulations constitute the law between the%. - e#, Fienna 9onvention on the Law of 2reaty ii. International Cu!to-! - custo% e#ists when there is a clear and continuous habits of doing certain things develop under the conviction that it is obligatory and right. - International 9ourt of Hustice held that custo%ary rule %ist be based on 0on!tant an# unifor- u!a6e .1 iii. +eneral Prinile! of law J recognized by civilized nations - 4#, ;es 8udicata prescriptions due process law of nature estoppel e# ae/uo et bono (fair and e/uity!. Seon#ar, Soure! 3Su%!i#iar, -ean! for #eter-inin6 rule! of law4 i(. Tea$in6 of -o!t $i6$l, ualifie# u%lii!t! of t$e (ariou! nation! (. 1u#iial Dei!ion! B. Euit, in International Law
Prinile of E= Aeuo et Bono
- %eans what is fair and good - falls under the general principle of law - e/uitable principle of law
C. Cla!!ifiation of !oure! of Pu%li International Law
i. ii.
<. ;elated 9ases i. Agustin vs 4du ebruary $ ">+> (== 79;A ">)! III. T0E INDI"IDUAL AND INTERNATIONAL LAW
A. Individual under International Law i.
T$e Law on Nationalit,
NATIONALITY
- the bond that unites a person to a given state which constitutes his %e%bership in the particular state giving hi% a clai% to the protection of that state and sub8ects hi% to the obligations created by the laws of that state. - in International Law the ter% nationality is used in place of citizenship which is understood in %unicipal law as being possessed of the full rights and privileges of %e%bership in a political co%%unity. ii.
Rule! on Multile Nationalitie! 3&?) 0a6ue Con(ention on Conflit of Nationalit, Law!4
&?) 0A+UE CON"ENTION ON CONFLICT OF NATIONALITY LAWS
- Provides the following rules, A. RULES IN DETERMININ+ A PERSONHS NATIONALITY
A;2I9L4 I. It is for each state to deter%ine under itJs own law who are its nationals. 2his law shall be recognized by other 7tates in so far as it is consistent with international conventions international custo%s and the principles of law generally recognized with regards to nationality.
A;2I9L4 II. Any /uestions as to whether a person possesses the nationality of a particular 7tate shall be deter%ined in accordance with the law of that 7tate. B. RULES ON MULTIPLE NATIONALITIES
A;2I9L4 III. A person having $ or %ore nationalities %ay be regarded as itJs national by each of the 7tates whose nationality he possesses. A;2I9L4 IF. 7 7tate %ay not afford diplo%atic protection to one of its nationals against a 7tate whose nationality such person also possesses. A;2I9L4 F. ithin a 2hird 7tate a person having %ultiple nationalities shall be treated as if he had only one. 2he 2hird 7tate 7tate shall of the nationalities which any such person possesses recognize e#clusively in itJs territory either, ". 2he nationality of the country in which he is habitually and principally resident or $. 2he nationality of the country with which in the circu%stances he appears to be in fact %ost closely connected - DOCTRINE OF EFFECTI"E NATIONALITY. A;2I9L4 FI. A person possessing two nationalities ac/uired without any voluntary act on his part. Eay renounce on of the% with the authorization of the 7tate whose nationality he desires to surrender. 2his authorization %ay not be refused in the case of a person who has his habitual and principal residence abroad if the conditions laid down in the law of the 7tate whose nationality he desires to surrender are satisfied. iii.
DOCTRINE OF EFFECTI"E NATIONALITY
- ithin a 2hird 7tate a person having %ultiple nationalities shall be treated as if he had only one. 2he 2hird 7tate 7tate shall of the nationalities which any such person possesses recognize e#clusively in itJs territory either, ". 2he nationality of the country in which he is habitually and principally resident or $. 2he nationality of the country with which in the circu%stances he appears to be in fact %ost closely connected i(.
DOCTRINE OF INDELIBLE ALLE+IANCE
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a 7tate %ay prohibit its nationals fro% changing their nationality under certain circu%stances.
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e#, 9.A. 6o. *' (Act providing for the ways in which Philippine 9itizenship %ay be lost or re-ac/uired! which provides that ilipino citizen %ay lose his citizenship by subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining $ years of age or %ore Provided
however that a ilipino %ay not divest hi%self of Philippine citizenship in any %anner while the ;epublic of the Philippines is at war with any country. -
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T0E EKEMPTION TO T0E +ENERAL RULE PRO"IDED BY ARTICLE & OF T0E UNI"ERSAL DECLARATION OF 0UMAN RI+0TS K that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.K DOCTRINE OF NEMO POTEST EKUERE PATRIAM
- doctrine providing that the bond of nationality could never be broen. - no one %ight transfer his allegiance to another state without the consent of the state which had first clai% upon hi%. - the basis of the
Su%et! an# o%et! of international law #efine#
Su%et of Pu%li International Law
- an entity directly possessed with personality with the rights and obligations in the international legal order - e#, sovereign state as Philippines ( with capacity to sue in the International 9ourt of Hustice or %ay be sued in international tribunal! ' 2INDS OF SUB1ECTS IN PUBLIC INTERNATIONAL LAW,
". COMPLETE INTERNATIONAL PERSONALITY - e#, a state which %ay be divided into categories, A. Sin6le or Si-le State 3e=. P$iliine!4 B. Co-o!ite !tate B.&. Fe#eral State! (@nited 7tates of A%erica united states of 7witzerland! - e#ists when the central or federal govern%ent e#ercises authority over both the various states in the @nion and the citizens thereof. - regarded as an I624;6A2ID6AL P4;7D6 - have its own govern%ental %achineries and absorbs all individual states associated together. B.'. Confe#eration - has so%e power over itJs individual state but not over the individual citizens of the %e%ber states.
- not regarded as an I624;6A2ID6AL P4;7D6 each of the %e%ber state being represented by its own delegate. - loose union or alliance for%ed through a treaty a%ong various states each of which is fully sovereign and independent. B.). Real Union - e#. @nited Arab ;epublic - for%ed by two sovereign states lined together by a co%%on govern%ent in e#ternal affairs and by a co%%on chief of state. 2he union then possesses a single international personality that %erges the separate personalities of the states as a unified whole. B./. Per!onal Union - %erger of two separate states in the sense that both have the sa%e individual as the accidental or te%porary head of state. 2he union however has no separate international personality since each of the %e%ber states has its own govern%ent and its own separate international personality. - currently there is no personal union in e#istence B.. Inororate Union - one where the internal and e#ternal organs of govern%ent of two states are %erged into one resulting in a single international personality. - e#, @nited ingdo% of 5reat Britain and Ireland '. INCOMPLETE9 IMPERFECT9
-sub8ected to control & sovereignty of so%e superior states in the conduct of their e#ternal & foreign affairs. '. Belli6erent ; in!ur6ent o--unitie!
- ;ebels and insurgents are organized group with no rights under the international law but if civil strife threatens to interfere with autono%y of foreign intercourse and tends to 8eopardize sovereignty of the state over the insurgent co%%unity certain insurgent rights %ay be tacitly ad%itted. - if the act is piracy then it is private in character and ends are not political and no insurgent rights arise. - parent state still liable for acts co%%itted by the insurgent co%%unity within the 8urisdiction of said parent state even if foreign state ad%its e#istence of insurgent rights.
- if hostile acts are co%%itted by insurgents against a foreign state the latter %ay choose to punish the% or turn the% over to the parent state. - foreign states ought to refrain fro% interfering in hostilities between parent state and insurgent co%%unity. Bellin6erent o--unit, ri6$t! ari!e w$en , ". 4nd %ust be political in character $. :ostilities %ust be a character of war and carried out in accordance with law of war '. Proportion of revolts %ust be to render the issue uncertain . 2he conduct of hostilities and general govern%ent of the revolting co%%unity %ust be in the hands of a responsible organization. Reo6nition of t$e international er!onalit, !tatu! of a %ellin6erent o--unit, in t$e international or#er i! ONLY FOR LIMITED PERIOD OF TIME. ). Colonie!9 #een#enie! an# o!!e!!ion - they cannot be states but the international legal order grants the% international personality in a restricted degree (sign international conventions and beco%e %e%ber of @nited 6ations.
- COLONY is a dependent co%%unity with a nu%ber of citizens but re%ain sub8ect to %other state. - DEPENDENCY is a territory distinct fro% country in which the supre%e sovereign power resides but belonging rightfully to it sub8ect to laws and regulations which the sovereign %ay thin proper to prescribe. - POSSESSION is held by a title other than that of %ere physical con/uest. /. Man#ate an# tru!t territorie! MANDATES - for%er territorial possessions of states defeated in the irst orld ar and placed under control of League of 6ations. 2hey are afforded the chance to develop econo%ically and socially by %ore advanced nations. TRUST TERRITORIES - under @6 supervision the Ad%inistering Authority e#ercising sovereignty power over the%. . Pu%li an# olitial ororation! or o-anie!
- private corporations fall under private international law but a re also involved in public international law when in ti%e of war their property and other rights are i%paired or when %ariti%e law has been infringed.
. International a#-ini!trati(e %o#ie!
- vested with international personality as they are beyond the control and authority of any particular state including the region in which seat of the organization %ay be situated.
O%et of Pu%li International Law
- indirectly vested with rights and obligations in the international sphere - e#, filipino private citizen ( who while entitled to certain rights which other states ought to respect has no recourse e#cept to course his grievances through the ;epublic and its diplo%atic officers!
ii.
Statu! of in#i(i#ual un#er international law
- hile Private individuals are regarded as ob8ects of PIL they are recently accorded a NEW STATUS IN INTERNATIONAL LAW and regarded as sub8ects in the international order with their i%portance laid down by the ff, - 9harter of the @6 and @niversal
ACT OF AN INDI"IDUAL BECOMES AN ACT OF STATE
- when his act %ay be i%puted on the 7tate. - deter%ined on the basis of the national legal order the law of the 7tate whose act is in /uestion. - an act or perfor%ance not per%itted or prescribed by law of the 7tate cannot be i%putable on the 7tate. - beco%es i%putable on a 7tate when perfor%ed by an individual who is an organ of the
7tate and co%petent under the law to represent the 7tate in relation to other 7tates such as the :ead of 7tate. iii. iv. v. vi. vii.
International Drganizations as sub8ects of International law 6on-govern%ental organizations Eultinational corporations 9o%plete international personalities Inco%plete i%perfect /ualified or /uasi-international personalities
I". STATES IN T0E INTERNATIONAL SYSTEM A. State #efine#
- group of people capable of procreation and sef defense living in a definite territory (%ust be a land not sea! possessed of govern%ent to which inhabitants render obedience. B. Ele-ent! or Attri%ute! of a State I. Aor#in6 to -aorit, !$ool of t$ou6$t ". 5roup of people (%an & wo%an capable of procreation!. $.
2he %a8ority school of thoughts and, ). Possession of sufficient degree of civilization *. ;ecognition by the a%ily of 6ations C. Fun#a-ental Ri6$t! of State!
i. ii. iii. iv. v.
2he rights of e#istence integrity and self-preservation 2he rights of sovereignty and independence 2he right of e/uality 2he right of property and 8urisdiction 2he right of legation or of diplo%atic intercourse
T$e ri6$t! of e=i!tene9 inte6rit, an# !elfJre!er(ation Ba!i!
- e#istence presupposes its right to survive which is predicated not only to physical %aintenance of its territorial integrity but also physical e#pansion that follows valid ac/uisition of territories. hen its e#istence is in 8eopardy it has a right of self preservation. &. T$e ri6$t to auire territorie! a. Mo#e! of auirin6 territorie!
". #i!o(er, an# ouation - only stateless territory could be ac/uired by discovery and occupation. -
- %ust be continuous public and adverse whether good or bad faith of so%e other stateCs territory and there %ust be a lapse of reasonable period of ti%e. ). e!!ion J territory is ac/uired voluntarily in case of donation or sale or involuntary as in the result of war. - perfection of cession co%%ences upon %eeting of %inds. - %ere lease effectuated by the owner in favor of another state cannot transfer ownership. A state %aing the cession is a %ere usurper or intruder with no transferable right the cession is purposeless and inefficacious. /. onue!t an# !u%u6ation J CON
. aretion
- is the process of attaching or incorporating so%ething to what an owner of territory already has. - %ay be natural (caused by natural force such as current of river! or artifiial (as in act of state in reclai%ing part of sea in recla%ation pro8ects!. %. Mo#e! of lo!in6 territorie!
". Abandon%ent (%ust be physical abandon%ent of the property with the intent never to return to the sa%e!. $. Prescription (e#tinctive prescription! '. 9ession . 7ub8ugation ). forces of nature (i.e. avulsion volcanic eruption! *. 7uccessful revolutions and secessions (%ere declaration of independence does not co%%ence a new state 3 success has to follow! . Sae Law i. Air !ae ii. Outer !ae LE+AL STATUS OF SPACE5
- space beyond the at%osphere is incapable by its very nature of appropriation on behalf of any particular sovereignty. - theoretically si%ilar to the rule of 0freedo% of the seas1 where seas canCt be possessed by any particular govern%ent and necessarily open to free spatial navigation by all those who %ay venture into its unnown confines. 1URISDICTION O"ER SPACE ACTI"ITIES
- 9ontrol and supervision vested in international bodies (i.e. @6! - It %ay be e#ercised by the country conducting the activity fro% which the departure was physically %ade and of citizens conducting the enterprise. '. T0E RI+0T TO SELF DEFENSE RE
- the right to self-defense which is an e#tension of the right to self-preservation hence under the general international law the right continues to e#ist even if attac is %ade against a non-@6 %e%ber state.
ALLIANCE EKISTS J because %e%bers of @6 have i%plicit faith in each otherCs desire for world peace. - so%e %e%bers feel the necessity of taing %easures to give %a#i%u% feeling of security either thru %utual protection or by outright co%bination of strength.
'. 9ases I!lan# of Pal-a! Ca!e
acts, In the "*th 9entury 7pain discovered an island %idway between Eindanao and
MIDTERM
T$e ri6$t! of !o(erei6nt, an# in#een#ene
". 7overeignty defined $. 7overeignty vs Independence '. 4ssential attributes of sovereignty . Intervention a. Ginds of Intervention b. 5rounds of Intervention c. 2he 7outh Fietna% 9ase
T$e ri6$t of eualit,
". Eeaning of e/uality in Public International Law $. 9onse/uences of legal e/uality of states '. Acts of 7tate
". 2he right of property or do%ain A. 2hree inds of do%ains i. 2erritorial ii. Eariti%e or luvial iii. Aerial B. 2he Law of the 7ea $. 2he right of 8urisdiction A. Hurisdiction of 7tates i. 2erritoriality Principle &. 2he Lotus 9ase '. 2rail 7%elter Arbitration ii. 6ationality Principle &. Blac%er v @nited 7tates '. T$e Notte%o$- Ca!e Prinile of +enuine LinG
- the bond of nationality %ust reflect a genuine connection between the individual and the state. ). Ee8off vs ? P:IL +? iii.
Proteti(e Prinile
- any state has the right to punish acts even if co%%itted outside its territory when such act constitutes attaG! a6ain!t it! !eurit, or t$e fal!ifiation of -one,9 !ta-!9 !eal or offiial -arG! . 2he
rule is applicable even when the acts in /uestion are not punishable in the country where they are co%%itted. - 2he principle is 8ustified by the fact that the state e#ercising such 8urisdiction is the very state against which the cri%e is directed.
i(.
Uni(er!alit, Prinile
- the universal principle of 8urisdiction of any state over ri-e! a6ain!t international law !u$ a! ira,9 !la(e tra#e9 air $i6$aGin69 6enoi#e an# terrori!-. &. ilartiga vs Pena-Irala '. Attorney 5eneral of Israel vs 4ich%ann PRINCIPLE OF PRESENCE
- Any court of state ac/uires 8urisdiction over cri%es co%%itted where the accused is present. (.
Pa!!i(e Per!onalit, Prinile
- deter%ines the 8urisdiction of the state by reference to the nationality of the person in8ured (victi%! in the offense. Ati(e Per!onalit, Prinile
- deter%ines the 8urisdiction of the state by reference to the nationality of the accused. &. united 7tates vs awaz unis
vi.
9onflict of Hurisdiction
(ii.
E=tra#ition ELEMENTS5 &. act of sovereignty of two states '. re/uest of one state to another for the delivery of a person ). delivery of the person re/uested for the purpose of a trial proceeding 88 T$i! reuire! an e=tra#ition treat, %etween ' !tate! w$ere t$ere i! a -utual on!ent %etween !tate!.
". united 7tates vs Alvarez-Eachain $. 7ecretary of Hustice vs :on. ;alph Lantion Dct. "+ $??? B. I%%unity fro% Hurisdiction i. I%%unity fro% 8urisdiction ii. I%%unity of head of states iii. 7tate i%%unity ". @7 vs. ;uiz Eay $$ ">=) $. @7 vs. ;eyes Earch " ">>' '. :oly 7ee vs. ;osario Hr. > . ;epublic of Indonesia vs. Finzon Hune $* $??' iv. >? $. 7outheast Asian isheries >). '. :D vs A/uino 6ove%ber $> ">+$ . Liang vs People Earch $* $??" vi. 2he Act of 7tate
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the fiction of international law by virtue of which certain foreign persons and their things are e#e%pted fro% the 8urisdiction of a state on the theory that they for% an e#tension of their own stateCs territory.
EKTRATERRITORIALITY PRINCIPLE
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-
the e#e%ption of foreign persons fro% the laws and 8urisdiction of the state in which they presently reside an e#e%ption which can e#ist only by virtue of a treaty stipulation to this effect.
. 2he Eost avored 6ation 9lause ).
T$e ri6$t of le6ation or of #ilo-ati interour!e RI+0T OF LE+ATION J a..a. RI+0T OF REPRESENTATION
- right accorded to a state to be represented by an a%bassador or diplo%atic agent in another state. 2he right includes the establish%ent of an e%bassy or %inistry in the receiving state. &. Dilo-ati Law* Dilo-ati Relation! ACTI"E RI+0T OF LE+ATION
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right to send diplo%atic representatives
PASSI"E RI+0T OF LE+ATION
- right to receive diplo%atic representatives / CLASSES OF DIPLOMATIC REPRESENTATI"ES5
". A%bassadors a%bassador e#traordinary and plenipotentiary and papal nuncio $. %inisters %inisters and papal internuncios '. %inisters residents . chargeCs dCaffaires and chargeCs dCaffaires ad interi% PERSONA NON +RATA
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e#pression used where a diplo%at is no longer welco%e to the govern%ent to which he is accredited after he has already been received and has entered upon his duties or before arriving in the territory of the receiving state. A re/uest to recall an envoy which the receiving state declares to be persona non grata is usually granted at once. If the sending state refuses to do so the receiving state %ay dis%iss hi%.
a. 4stablish%ent of diplo%atic %ission b. 9lasses of heads of %ission c.
- 2he persons of diplo%atic agents are in(iola%le . :e is not sub8ect to the local laws of the receiving state. - Rea!on for t$e i--unit, an# ri(ile6e! , to enable the diplo%at to e#ercise his duties and functions without the i%pedi%ent fro% the authorities. It is also based on function and necessity. - Dilo-ati i--unit, i! a olitial ue!tion . 9ourts should refuse to loo beyond a deter%ination by the e#ecutive branch of the govern%ent. f. 2er%ination of diplo%atic functions g. Fienna 9onvention on
"II. T0E LAW OF WAR AND INTERNATIONAL 0UMANITARIAN LAW A. 2he law of ar and Ar%ed 9onflict B. 6eutrality "III. SETTLEMENT OF DISPUTES A. Aerial Incidence 9ase B. 6icaragua vs. @7 9. 9ase concerning 4ast 2i%or
IK. INTERNATIONAL CRIMINAL LAW K. INTERNATIONAL EN"IRONMENTAL LAW KI. INTERNATIONAL ECONOMIC LAW