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PUBLIC INTERNATIONAL LAW Atty. Cecilio D. Duka, Ed.D.* Professor, College of Law San Sebastian College, Manila De La Salle University, Manila International Law Defined International law is the body of legal rules which apply between sovereign states and such other entities as have been granted international personality. Basis of International Law 1. The Law of Nature School - There is a natural and universal principle of right and wrong, independent of mutual intercourse or compact, which can be discovered and recognized by every individual through the use of his reason and conscience. Since individual compose the state whose will is but the collective will of the inhabitants, the state also becomes bound by law of nature. 2. The Positivist School - The binding force of international law is derived from the agreement of the states to be bound by it. In this context, international law is not a law of subordination but of coordination. 3. The Eclectic/Grotian School - It represents the compromise between the first two schools of thought and submits that international law is binding partly because it is good and right and partly because states have agreed to be bound by it. International Community The international community may be described as the body of judicial entities which are governed by international law. It is often and traditionally called the family of nations. Colonies and Dependencies A colony is a dependent dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit another country but remain subject to the mother state. A dependency dependency is a territory distinct from country in which the supreme sovereign power resides, but belongs rightfully to it and subject to the laws and regulations which the sovereign may prescribe. Belligerent Community It may be described as a group of rebels under as organized civil government who has taken up arms against the legitimate government. When recognized, it is considered separate state for purposes of the conflict and is entitled to all the rights and subjected to all the obligations of a full-fledged belligerent under the laws of war. It may exercise the rights of visit and search, siege contraband and establish blockades. Any injury it may cause third states or their nationals is imputable to it and not to the legitimate governmental which it is resisting.
------------------* Author – Labor Laws and Social Legislation: A Barrister’s Companion, Constitutional Law: A Barrister’s Companion, Bar Reviewer in Political Law and Labor Laws, MCLE Lecturer in Political and Public International Law and Labor Laws and Social Legislations, Arbitration and Legal Ethics, Reviewer, Licensure Examination for Teachers, and Civil Service Review, Manila Review Institute.
Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 1 of 16
International Administrative Bodies They may be considered as a subject of international law when they are autonomous, i.e. they are not subject to the control of any single state and their purposes are mainly non-political. United Nations It is an international organization vested at the San Francisco Conference which was held in the United Sates from April 25 to June 26, 1945. The U.N. succeeded the League of Nations and is governed by a charter which came into force on October 24, 1945. Composed originally of only 51 members. THE U.N. CHARTER a. Purpose The principal objectives of the U.N. are the prevention of war, the maintenance of international peace and security, the development of friendly relations among the members of the international community, the attainment of international cooperation and harmony in the actions of nations. b. Amendment i. By a vote of 2/3 of the members of the General Assembly and ratified in accordance with their respective constitutional processes by 2/3 of the members of the U.N., including all the permanent members of the Security Council. ii. A general conference, called by a majority vote of the General Assembly and any 9 members of the Security Council, may propose amendments by a 2/3 vote of the conference and shall take effect when ratified by 2/3 of the members of the U.N., including the permanent members of the Security Council. c. Membership i. Classes A. Original B. Elective ii. Qualifications A. Must be a state; B. Peace loving; C. Accept the obligations under the charter; D. Is able and willing to carry out these obligations. iii. Admission Decision of 2/3 of those present and voting in the General Assembly upon recommendation of at least 9 members of the Security Council. iv. Suspension The same vote required as in admission. To lift the suspension a qualified majority vote of the Security Council is needed. The suspended member is prohibited from: A. Participating in the meeting of the General Assembly
B. Be elected to or continue to serve in the Security Council, the Economic and Social Council, the Trusteeship Council. -- But nationals may continue serving in the Secretariat and the International Court of Justice and still subject to discharge it's obligations under the Charter. v. Expulsion 2/3 vote of those present and voting in the General Assembly, upon recommendation of a majority of the Security Council, on ground of persistently violating the principles contained in the Charter.
Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 2 of 16
PRINCIPAL ORGANS 1. General Assembly It is the central organ of the United Nations. All members are represented in it and it exercises powers and functions with respect to the other organs. It is the principal deliberative body of the organization and is vested with jurisdiction over matters concerning the internal machinery and operations of the United Nations. 2. Security Council It is an organ of the United Nations primarily responsible for the maintenance of international peace and security. Composition: 15 members, 5 of which are permanent. The so- called big five and the other ten members are elected for 2-year terms by the General Assembly, 3. Economic and Security Council (ECOSOC) Recognizing that the promotion of social progress and better standards of life in larger freedom is indispensable to world harmony and order, the United Nations Charter has created an organ charged with the particular duty of pursuing this objective. Composition: 54 members elected by the General Assembly for a staggered term of 3 years with right to run for re-election. 4. Trusteeship Council It is the principal organ of the United Nations which is directly charged with the administration of the international trusteeship system. The operation has been suspended when Palau became an independent state on Nov. 1, 1994. Composition: A. Members of the United Nations administering trust territories B. Members of the big five not administering trust territories C. Many members of the United Nations elected for 3 year terms by the General Assembly 5. International Court of Justice It is a judicial organ of the United Nations. Composition: 15 members who must be of high moral character and possess the qualifications required in their respective countries for appointment to the highest judicial office or are jurisconsults of recognized competence in international law. 6. Secretariat The chief administrative organ of the United Nation is the Secretariat, which is headed by a Secretary-General. The Secretary-General is chosen by the General Assembly upon recommendation of the Security Council. His term is fixed at 5 years by resolution of the General Assembly and he may be re-elected. Creation of States Revolution, Unification, Succession, Assertion of Independence, Agreement, By Attainment of Civilization
Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 3 of 16
Fundamental Rights of a State The right of existence and self-defense, The right of independence, The right of equality, The right of property and jurisdiction, The right of legation or diplomatic intercourse. Recognition It is an act by which a state acknowledges the existence of another state, a government or belligerent community and indicates its willingness to deal with the entity as such under the rules of international law. Theories on Recognition of States 1. Constitutive (Minority View) - Recognition is the act which constitutes the entity into an international person. Under this view, recognition is compulsory and legal. It may be compelled once the elements of a state are established. 2. Declarative (Majority View) - Recognition merely affirms an existing fact, like the possession by the state of the essential elements. It is discretionary and political. Requirements for Recognition of Government: 1. The government is stable and effective with no substantial resistance to its authority. 2. The government must show willingness and ability to discharge its international obligations. 3. The government must enjoy popular consent or approval of the people. Kinds of Recognition: 1. Express- may be verbal or in writing. It may be made through a formal proclamation, a stipulation in a treaty, a letter or telegram, on the occasion of an official call, etc.. 2. Implied- it is affected when the recognizing and recognized states enter into a treaty regulating their relations in general or when they exchange diplomatic representatives. Objects of Recognition: Recognition is extended to: 1. a state; 2. a Government, whether as de facto or de jure; 3. a belligerent community. Recognition of a De Facto Government: - Extended by the recognizing state which believes that some of the requirements for recognition are absent. The recognition is generally provisional and limited to certain judicial relations. It does not bring about full diplomatic intercourse and does not give title to assets of the state held or situated abroad. Recognition of a De J ure government: - Extended to a government fulfilling the requirements for recognition. When there is no specific indication, recognition is generally considered as de jure. The recognition is relatively permanent, brings about full diplomatic intercourse and observance of diplomatic immunities and confers title to assets abroad. Wilson - Tobar Doctrine - Precludes recognition of any government established by revolutionary means until constitutional reorganization by free election of representatives. Stimson Doctrine - No recognition of a government established through external aggression. Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 4 of 16
Estrada Doctrine - Since recognition has been construed as approval of a government established through a political upheaval, a state may not issue a declaration giving recognition to such government, but merely accept whatever government is in effective control without raising the issue of recognition. Dealing or not dealing with the government is not a judgment on the legitimacy of the said government. The Drago Doctrine - The Drago doctrine embodied in the Hague Convention of 1907, which provided that the contracting powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due its nationals. Components of Territory: 1. Terrestrial Domain – it is the landmass on which the people live. It may be integrated, as in the case of Iran, or dismembered, as in the case of United States, or may be partly bounded by water, like Burma, or completely surrounded, like Iceland, or may consist of several islands, like the Philippine Archipelago. 2. The Maritime and Fluvial Domain – it consists of the bodies of water within the land mass and waters adjacent to the coasts of the state to a specified limit. It includes land-locked lakes, rivers, man-made canals, the waters in certain gulfs, bays and straits and the territorial sea. 3. The Aerial Domain – it is the airspace above the territorial domain and the maritime and fluvial domain of the state, to the limits of the atmosphere. This does not include outer space. Modes of Acquisition of Territory: 1. Discovery and Occupation – it is an original mode of acquisition by which territory not belonging to any state or terra nullius, is placed under the sovereignty of the discovering state. The territory need not be uninhabited provided it can be established that the natives are not sufficiently civilized and can be considered as possessing not rights of sovereignty but only rights of habitation. *Requisites of discovery and occupation: 1. Possession – it must be claimed in behalf of the state represented by the discoverer and may be effected through a formal proclamation and the symbolic act of raising the national flag in the territory. 2. Administration
Both requisites must concur. Absence of one will not give rise to acquisition of territory. 6. Archipelagic Waters * THE ARCHIPELAGIC DOCTRINE – The waters around, between and connecting the islands of the archipelago, regardless of their breadth or dimension, are to be treated as internal waters. (Article 1, Section 1 of the 1987 Constitution) *Archipelago – A group of islands, including parts of islands, inter-connecting waters and other natural features which are closed interrelated in such islands, waters and other natural features which from an intrinsic geographical, economic and political entity or which historically has been regarded as such. *Straight Baseline Method – In defining the internal waters of the archipelago, straight baselines should be drawn to connect appropriate points of the Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 5 of 16
outermost islands without departing radically from the general direction of the coast so that the entire archipelago shall be encompassed as one whole territory. The waters inside these baselines shall be considered internal and thus not subject to entry by foreign vessels without the consent of the local state. 7. Territorial Sea – The belt of the sea located between the coast and internal waters of the coastal state on the one hand, and the high seas on the other, extending up to 12 nautical miles from the low-water mark or in the case of archipelagic states, from the baselines. General Rule: Ships of all states enjoy the right of innocent passage through the territorial sea. The passage must be continuous and expeditious except in cases of force majure. Submarines and other underwater craft are required to navigate on the surface and to show their flag. 8. Contiguous Zone – Extends up to 12 nautical miles from the territorial sea. Although technically, not part of the territory of the state, the coastal state may exercise limited jurisdiction over the contiguous zone, to prevent infringement of customs, fiscal, immigration or sanitary laws. 9. Exclusive Economic Zone – Extends up to 200 nautical miles from the low-water mark or the baselines. Technically, the area beyond the territorial sea is not part of the territory of the state, but the coastal state may exercise sovereign rights over economic resources of the sea, seabed, subsoil although other states shall have freedom of navigation and over flight, to lay submarine rabbles and pipelines and other lawful uses. States with overlapping exclusive economic zones are enjoined to enter into the appropriate treaty for the joint exploitation and utilization of the resources in the area. 10. Continental Shelf – It comprises the seabed and the subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 miles from the baselines from which the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. The coastal state also enjoys the right of exploitation of oil deposits and other resources in the continental shelf. In case the continental shelf extends to the shores of another state, or is shared with another state, the boundary shall be determined in accordance with equitable principles. 11. High Seas – The high seas are treated as res communes or res nullius, or thus, are not territory of any particular state. *Freedom of Navigation – refers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state. *Aerial Domain International Convention on Civil Aviation, December 7, 1944, states that ―the contracting parties recognize that every state has complete and exclusive sovereignty over the air space above its territory‖ but this shall not include outer space, which is considered as res communes. Other states have no right of innocent passage over the air territory of another state. Outer space – they are res communes and belong to all mankind. They are outside the commerce of man and cannot be the object of any mode of acquisition.
Innocent Passage – means navigation through the territorial sea of a state for the purpose of traversing that sea without entering internal water, or of proceeding to internal waters, or making for the high seas from internal waters, as long as it is not prejudicial to the peace, good order or security of the coastal state. Jurisdiction Over Land Territory The state exercises jurisdiction over everything found within its territorial Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 6 of 16
domain except from the exemption stated above. *Jurisdiction Over Maritime Territory Over foreign public vessels, the local state exercises either civil or criminal jurisdiction, provided they are not engaged in private business. Over foreign private or merchant vessels, the local state exercises full jurisdiction. However, criminal jurisdiction is determined according to the: a. English Rule – the coastal state shall have jurisdiction over all offenses committed on board the vessel except those which do not compromise the peace of port. b. French Rule – flag state shall have jurisdiction over all offenses committed on board the vessel except those which compromise the peace of the port. *Jurisdiction Over Contiguous Zone Under the UN Convention on the laws of the sea, the coastal state may exercise the control necessary to prevent infringement of its customs, fiscal, immigration and sanitary regulations and punish the said infringement. Jurisdiction Over the Continental Shelf The coastal state enjoys the right of exploitation of oil deposits and other resources in the continental shelf. In cases the continental shelf extends to the shores of another state, or is shared with another state, the boundary shall be determined in accordance with equitable principles. Jurisdiction Over Patrimonial Sea or Exclusive Economic Zone Under the UN Convention on the law of the sea, the coastal state has sovereign rights over the exclusive economic zone for purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the seabed, the subsoil and the superjacent waters, as well as the production of energy from the water, currents and winds. Other states shall have the freedom of navigation and over-flight, to lay submarine cables and pipes and other lawful uses. Jurisdiction Over Open Seas The open seas or the high seas are res communes and available to the use of all states for the purposes of navigation, flying over them, laying submarine cables or fishing. A state may exercise jurisdiction on the open seas in the following instances: 1. Over its vessels – the flag state has jurisdiction over its public vessels at times, whether they are in its own territory, in the territory of other state or on the open seas. Merchant vessels, on the other hand, are under its jurisdiction when they are within its territory, when jurisdiction is waived or cannot be exercised by the territorial sovereign or when such vessels are on the open seas. 2. Over pirates – pirates are enemies of all mankind and they may be captured on the open seas by the vessels of any state, to whose territory they may be brought for trial and punishment. Piracy is committed for private ends, not political motives. Insurgents may, therefore, not to be treated as pirates. 3. In the exercise of the right of visit and search – under the laws of neutrality, the public vessels or aircraft of a belligerent state may visit and search any neutral merchant vessel on the open seas and capture it if found to be engaged in activities favorable to the other belligerent. 4. Under the doctrine of hot pursuit – if an offense is committed by a foreign merchant vessel within the territorial waters of the coastal state, its own vessels may pursue the offending vessel into the open seas and upon capture bring it back to its territory for punishment. To be lawful, the pursuit must be begun before the offending vessel has left the territorial waters or the contiguous zone of the coastal state with respect to violation of rights enforceable thereon. Moreover, the pursuit must be continuous or unabated; otherwise, it will be deemed to Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 7 of 16
have cooled and can no longer be resumed. The Baselines Laws R. A. No. 3046 - June 17, 1961R.A. No. 5446 - 18 September 1968, R.A. 9522, March 10, 2009. Magallona vs. Ermita, July 16, 2011 – Spratlys and Scarborough Shoal are outside the Philippine Baselines UNCLOS and ITLOS Jurisdiction Over Aerial Domain The consensus is that the subjacent state has jurisdiction over the airspace above it to the upward limits of the atmosphere. Hence, no foreign aircraft, civil or military, may pass through the aerial domain of a state without its consent. The Right of Legation It is the right of a state to maintain diplomatic relations with other states. Also known as the right of diplomatic intercourse, this refers to the right of the state to send and receive diplomatic missions, which enables states to carry on friendly intercourse. It is not a natural or inherent right, but exists only by common consent. No legal liability is incurred by the state for refusing to send or receive diplomatic representatives. Agents of Diplomatic Intercourse 1. Head of State - He is the embodiment of, and represents, the sovereignty of the state, and enjoys the right to special protection for his physical safety and the preservation if his honor and reputation. His quarters, archives, property and means of transportation are inviolate under the principle of exterritoriality. He is immune from criminal and civil jurisdiction, except when he himself is the plaintiff, and is not subject to tax or exchange or currency restrictions. 2. The Foreign Secretary or Minister – Under the municipal law of most states, the foreign secretary is the immediate representative of the head of state and directly under his control. He can make binding declarations on behalf of his state on any matter falling within his authority. 3. The Members of the Diplomatic Service 4. Sometimes state may appoint special diplomatic agents changed with either political or ceremonial duties, such as the negotiation of a treaty or attendance at a state function like a coronation or a funeral. Kinds of Consuls Consules missi – professional or career consuls who are nationals of sending state and are required to devote their full time to discharge their duties; and Consules electi – may or not be nationals of sending state and perform consular functions only in addition to their regular callings Ranks of Consuls Consul general – heads several consular districts, or one exceptionally large consular district Consul – takes charge of a small district or town or port; Vice-consul – assists the consul; and Consular agent – usually entrusted with the performance of certain functions by the consul Diplomatic Privileges Inviolability of premises and archives, Right of official communications, Exemption from local jurisdiction, Personal inviolability, Exemption from subpoena, Exemption from taxation/custom duties Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 8 of 16
R epublic of Indonesia vs. V inzon, J une 26, 2003 1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. (Article 31, Vienna Convention on Diplomatic Relations) See also Liang vs. People of the Philippines, March 26, 2001 Treaty – it is a formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treaty- making capacity, for the purpose of regarding their mutual relations under the law of nations. *Distinction Between Treaty and Executive Agreement An executive agreement is not a treaty insofar its ratification may not be required under our Constitution. However, the distinction is purely municipal and has no international signific ance. From the standpoint of international law, ―treaties and executive agreements are alike that both constitute equally binding obligations upon the nation. Bayan vs. Zamora, October 10, 2010, Saguisag v. Ochoa, January 12, 2016 Functions of Treaties 1) To enable the parties to settle finally actual and potential conflicts. 2) To make it possible for the parties to modify rules of international customary law by means of optional principles or standards. 3) To pave the way for the transformation of unorganized international society into one which may be organized ion any chosen level of social integration. 4) To provide the humus for the growth of international customary law. Essential Requisites of Valid Treaty 1. Entered into by parties having the treaty-making capacity, 2. Through their authorized organs or representatives, 3. Without the attendance of duress, fraud, mistake or other vice of consent, 4. On a lawful subject, 5. In accordance with their respective constitutional processes. Fundamental principles concerning treaties 1. Pacta sunt servanda – it means that treaties must be observed in good faith despite hardship on the contracting state, such as conflicts between the treaty and its constitution or prejudice to the national interest as a result of the operation of the treaty. As a general rule, a party must comply with the provisions of a treaty and cannot ignore or modify it without the consent of the other signatory. Willful disregard or violation of treaties without just cause is frowned upon by the society of nations.
2. Clausula Rebus sic stantibus – according to Jessup, ― would justify non -performance of a treaty obligation if the conditions in relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable‖. *Limitations on the Doctrine of rebus sic stantibus: 1. It applies only to treaties of indefinite duration. 2. The vital change claimed as justification for the discontinuance of the treaty must have been unforeseen or unforeseeable and must not have been caused by the party invoking the doctrine. 3. The doctrine must be invoked within a reasonable time from the occurrence of the change asserted. Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 9 of 16
4. The doctrine cannot operate retroactively upon the provisions of the treaty already executed prior to the change in circumstance. 3. Jus Cogens "Latin meaning "compelling law." This "higher law" may not be violated by any country. For example, genocide or slave trade may be considered to go against jus cogens. First embodied in the 1969 Vienna Convention on the Law of Treaties, it was recently confirmed by the 1986 Vienna Convention on the Law of Treaties. Vinuya vs. Executive Secretary, April 28, 2010 4. Most favored nation clause (MFN) Also called normal trade relations in the United States, is a status accorded by one nation to another in international trade. It does not confer particular advantages on the receiving nation, but means that the receiving nation will be granted all trade advantages, such as low tariffs that any third nation also receives.
C alvo Claus e From the work of Carlos Calvo called Derecho internacional teórico y práctico de Europa y América Carlos Calvo - an Argentine publicist and historian, who devoted himself to the study of the law. It is a Provision usually inserted in a contract where nationals of another state renounce any claim upon his national state for protection. This waiver can only be made by the alien’s state Extradition The surrender of a person by one state to another state where he is wanted for prosecution or if already convicted, for punishment. Basis of Extradition: 1. A treaty, 2. In absence of a treaty, the local state may grant asylum to the fugitive, 3. If surrender is made, the same is merely a gesture of comity. Distinction between Extradition and Deportation Extradition is the surrender of a fugitive by one state to another where he is wanted for prosecution or if already convicted, for punishment. The surrender is made at the request of the latter state on the basis of an extradition treaty while deportation is the expulsion of an alien who is considered undesirable by the local state, usually but not necessarily to his own state. Deportation is the unilateral act of the local state and is made in its own interests. Fundamental Principle of Extradition 1. Extradition is based on consent of the state of asylum as expressed in a treaty or manifested as an act of goodwill. 2. Under the principle of specialty, a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offices in the extradition treaty. 3. Any person may be extradited, whether he is a national if the requesting state, of the state of refuge or of another state. 4. Political and religious offenders are generally not subject to extradition. a. In order to constitute an offense of a ―political character‖ there must be two or more parties in the state, each seeking to impose the government of their own choice on the other. b. Under the Attentat Clause, the murder of the head of state or any member of his family is not to be regarded as a political offense. Neither is genocide. 5. In absence of special agreement, the offense must have been committed within the territory or against the interests of the demanding state. 6. The act for which the extradition is sought must be punishable in both the requesting and requested state under what is known as the rule of double criminality. Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 10 of 16
Procedure of Extradition 1. Request, accompanied by the necessary papers relative to the identity of the wanted person and the crime alleged to have committed or which he has already been convicted, made through diplomatic channels to the state of refuge. 2. Upon receipt of the request, state of refuge will conduct a judicial investigation to ascertain if the crime is covered by the extradition treaty and if there is a prima facie case against the fugitive delivered to the state of refuge. - In Secretary of Justice vs. Lantion , the Supreme Court ruled that extradition proceedings are sui generic and are not criminal proceedings which automatically call into operation all the rights of an accused as guaranteed in the Bills of Rights. Extradition proceedings do not involve the question of guilt or innocence of the person to be extradited. Bail in Extradition An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. A new standard which is termed ―clear and convincing evidence‖ should be used in granting bail in extradition cases. This standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by ―clear and convincing evidence‖ that he is not a flight risk and will abide with all the orders and processes of the extradition court. (Government of Hong Kong Special Administrative Region vs. Judge Olalia, April 19, 2007) Refugees Those who are outside the country of his nationality or if stateless outside the state of his habitual residence. They lack national protection. There is danger of persecution. A refugee is a person who is seeking asylum in a foreign country in order to escape persecution, war, terrorism, extreme poverty, famines, and natural disasters. Non Refoulement Prohibits the state to expel a refugee or return him to the territory where he escaped because his life or freedom is threatened. The receiving state is under obligation to grant asylum. Asylum Asylum is a form of protection that allows individuals who are in another state to remain in the territory of that state provided that they meet the definition of a refugee and are not barred from either applying for or being granted asylum, and eventually to adjust their status to lawful permanent resident. Diplomatic Asylum Refugee in diplomatic premises Political Asylum Refugee in another state for political offense, he faces danger to his life and liberty. International Disputes It is an actual disagreement between states regarding the conduct to be taken by one of them for the protection or vindication of the interests of the other. A situation is the initial stage of dispute. Actual disagreement between states regarding conduct to be taken by one of them for protection or vindication of interest of another. Article 33 of the UN Charter provides that the parties to any dispute shall first seek a solution through pacific or amicable method. Modes of Settling Disputes 1. Amicable method, 2. Hostile method Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 11 of 16
Amicable method Negotiation, Inquiry, Tender of Good offices, Mediation, Conciliation, Arbitration, Judicial settlement, Resort to International organizations. Hostile Methods Severance of diplomatic relations, Intervention, Retorsion, Reprisal, War
War is an armed contention between public forces of the states or other belligerent communities implying the employment of force between parties for the purpose of imposing their respective demands upon each other. International Humanitarian Law International humanitarian law is part of international law, which is the body of rules governing relations between States. It is contained in agreements between States – treaties or conventions, in customary rules, which consist of State practice considered by them as legally binding, and in general principles of international law. International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter. International humanitarian law is also known as the law of war or the law of armed conflict.
J us ad bellum Jus ad bellum (Latin - justice of war) - the law concerning allowable justifications for the use of armed force. A set of criteria that are consulted before engaging in war, in order to determine whether entering into war is justifiable.
J us in bello Jus in bello (or justice in war) - also known as the rules that serve as guidelines for fighting well once war has begun. Some maintain that morality does not exist in warfare, and therefore object to just war theory. Basic Principle of War 1. Principle of Military necessity — belligerents may employ any amount and kind of force to compel the complete submission of the enemy with the least possible loss of lives, time and money. The Lieber Code describes military necessity as follows: Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction 2. Principle of Humanity — prohibits the use of any measure that is not absolutely necessary for purposes of war; and 3. Principle of Chivalry — basis of such rules as those that require belligerents to give proper warning before launching a bombardment or prohibit the use of perfidy (treachery) in the conduct of hostilities. Prohibitions in War It is prohibited to attack doctors and ambulances displaying a Red Cross, a Red Crescent. It is also prohibited to fire at a person or vehicle bearing a white flag since that indicates an intent to surrender or a desire to communicate. In either case, the persons protected by the Red Cross or white flag are expected to maintain neutrality, and may not engage in warlike acts. Engaging in war activities under a white flag or red cross is itself a violation of the laws of war known as perfidy. Combatants An enemy combatant has historically referred to members of the armed forces of the state with which another state is at war. A privileged combatant is a member of the armed forces who takes a direct part in the hostilities of an armed conflict within the law of war and upon capture qualifies as a prisoner of war under the Third Geneva Convention. Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 12 of 16
Unprivileged combatants are people who are fighting but are not privileged combatants and who therefore do not enjoy the full protections of the Third Geneva Convention. Noncombatant is a military and legal term describing civilians not engaged in combat. It also includes (Geneva Conventions Protocol I, 8 June 1977, Art 43.2) persons, such as medical personnel and chaplains (who are regular soldiers but are protected because of their function). Rights of Prisoners of War Article 4 of the Third Geneva Convention protects captured military personnel, some guerrilla fighters and certain civilians. It applies from the moment a prisoner is captured until he or she is released or repatriated. One of the main provisions of the convention makes it illegal to torture prisoners and states that a prisoner can only be required to give his or her name, date of birth, rank and service number (if applicable). Jus Postliminy When a property taken by the enemy is either recaptured or rescued from him, by the fellow subjects or allies of the original owner, it does not become the property of the recaptor or rescuer, but it is restored to the original owner by right of postliminy, upon certain terms. The jus postliminium was a fiction of the Roman law. It is a right recognized by the law of nations, and contributes essentially to mitigate the calamities of war. Commercia belli They are contracts entered between belligerents or subjects of nations at war which regulate arrangements for non hostile dealings are made. Among these agreements are: 1. Flag of truce - A white flag brought or displayed to an enemy as a request for a conference or as a signal of surrender. (thefreedictionary.com) 2. Parlementaire – Is the bearer of the flag of truce. He is not subject to attack or any hostilities by the enemy for as long as he doe not take advantage of his status. But the enemy is not under any obligation to receive favorably the flag of truce. (Cruz, 2000) 3. Safe conduct - a document given to an enemy by an enemy government or commander authorizing safe passage through a region or especially defined points. Armistice Armistice – (derived from the Latin word ―arma‖ meaning arms and ―stitium‖ meaning a stopping) It is a formal agreement of belligerents to stop fighting. It is not necessarily the end of a war, because it may constitute only a cessation of hostilities while an attempt is made to negotiate a lasting peace. Uti Possidetis Uti Possidetis Latin for "as you possess" is a principle in international law that territory and other property remains with its possessor at the end of a conflict, unless provided for by treaty. Originating in Roman Law, this principle enables a belligerent party to claim territory that it has acquired by war. Neutrality Neutrality is the general abstention by a state which is not party to a war from all participation in the war, and may extend to the obligation to prevent, tolerate, or regulate certain acts upon the part of the belligerents. Neutralization By agreement of states or through a treaty or convention, a state or portions of it is neutralized. A neutralized state is bound to refrain from offensive hostilities, but is usually permitted to keep an army for its defense. The degree of restraint upon the action of the state varies according to the convention. For instance, during the Congress of Vienna on March 20, 1815, Switzerland agreed to be neutralized, Belgium was neutralized during the Treaty of London on November 15, 1831. While neutrality can only be made during war, neutralization can be done at anytime and will continue as provided in the treaty or convention. Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 13 of 16
Duties of Neutral States Abstention - to abstain from taking part in the hostilities and from giving assistance to either belligerent; Prevention - to prevent its territory from being used by the belligerents in the conduct of hostilities; and Acquiescence - to acquiesce in certain restrictions and limitations that the belligerents may find necessary to impose, especially in connection with international commerce. Duties of Belligerents 1. to respect the status of the neutral state; 2. to avoid any act that will directly or indirectly involve it in their conflict and submitting to any lawful measure it may take to maintain or protect its neutrality. Right of Angary The belligerents may upon payment of just compensation seize, use or destroy, in case of urgent necessity for purposes of offense or defense neutral property found in its territory, in enemy territory or on high seas. Blockade It is a hostile operation by which the vessels and aircraft of one belligerent prevent all other vessels including those of neutral states, from entering or leaving the ports or coasts of the other belligerent, the purpose being to shut off the place from international commerce and communication with other states. Right of Visitation The belligerent warships and aircrafts have the right to visit and search neutral merchant vessels on the high seas for the purpose of determining whether in any way they are connected to hostilities. Prize
The vessels that violated the rules of neutrality or have engaged in hostilities may be captured as a prize. If they resist visit and search or if there is reasonable suspicion that they are liable to confiscation. The cargo vessels may also be captured under certain conditions, as when they are contraband. The prize is not confiscated summarily but must be brought to a prize court for adjudication. Prize Court It is a tribunal established by a belligerent under its own laws in its territory or territories of allies and applies rules of international law in the absence of special municipal legislations. Breach of Blockade It occurs when a vessel with a knowledge of the existence of the blockade enters or leaves the blockaded port through the blockaded or forbidden approach. A mere attempt to violate the blockade is treated as a consummated blockade Contraband Contraband was the terminology used by Brigadier General Benjamin Butler, commander at Fort Monroe in southeastern Virginia, at the outset of the American Civil War to describe a new status for certain escaped slaves. However the term is also commonly and in legal language used for goods that by their nature, e.g. too dangerous or offensive in the eyes of the legislator (those are termed contraband in se) are forbidden, and for so-called derivative contrabande, i.e. goods that may normally be owned but are liable to be seized because they were used in committing an unlawful act and hence begot illegally.
Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 14 of 16
The International Criminal Court The ICC began functioning on 1 July 2002. The ICC can only prosecute crimes committed on or after that date. At present there are 124 states which are party to the Rome Statute and therefore members of the ICC. Jurisdiction The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes and the crime of aggression provided that only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the UN Security Council. Structure The Court is governed by an Assembly of States Parties. Assembly of States Parties consists of one representative from each state party. Each state party has one vote and every effort has to be made to reach decisions by consensus. The Court consists of four organs: The Presidency, Judicial Divisions, Office of the Prosecutor and the Registry. Presidency The Presidency is one of the four Organs of the Court. It is composed of the President and First and Second Vice-Presidents, all of whom are elected by an absolute majority of the Judges of the Court for a three-year renewable term. The judges composing the Presidency serve on a full-time basis. Judicial Divisions The Judicial Divisions consist of the 18 judges of the Court, organized into three divisions: The Pre-Trial Division, Trial Division and Appeals Division — which carry out the judicial functions of the Court. Judges are elected to the Court by the Assembly of States Parties. Judges serve nine-year terms and are not eligible for re-election. All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state. They must be ―persons of high moral character, impartiality and integrit y who possess the qualifications required in their respective States for appointment to the highest judicial offices. Office of the Prosecutor The Office of the Prosecutor is responsible for conducting investigations and prosecutions and examining situations under the jurisdiction of the Court where genocide, crimes against humanity and war crimes appear to have been committed, and carrying out investigations and prosecutions against the individuals who are allegedly most responsible for those crimes. Registry The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The Registry is headed by the Registrar, who is elected by the judges to a five-year term. Republic Act No. 9851 Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. Section 4 - War Crimes, Section 5 – Genocide, Section 6 Other Crimes Against Humanity Section 7 – Penalties, violations of Sections 4, 5 and 6 are penalized by reclusion temporal in its medium to maximum period and a fine ranging from One hundred thousand pesos (Php 100,000.00) to Five hundred thousand pesos (Php 500,000.00). When justified by the extreme gravity of the crime, especially where the commission of any of the crimes specified herein results in death or serious physical injury, or constitutes rape, and considering the individual circumstances of the accused -reclusion perpetua and a
Notes on Public International Law by Atty. Cecilio D. Duka, Ed.D for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Page 15 of 16
fine ranging from Five hundred thousand pesos (Php 500,000.00) to One million pesos (Php 1,000,000.00) shall be imposed. Delight yourself in the eyes of the Lord and He will give you the desires of your heart Psalm 37:4
Atty. Duka’s Published Works 1. Constitutional Law: A Barrister’s Companion , Rex Bookstore, 2010 2. Labor Laws and Social Legislations: A Barrister’s Companion, Rex Bookstore, 2016 3. Introduction to Sociology Anvil Publishing House, 2014 4. Rizal, His Legacy to the Philippine Society, Anvil Publishing, 2015 5. The Struggle for Freedom: A Textbook on Philippine History, Rex Bookstore, 2008 6. The Law and the Teaching Profession in the Philippines, C and E Publishing, 2008 7. Introduction to Asia: History, Culture and Civilization, Rex Bookstore, 2005 8. Reviewer for the Licensure Examination for Teachers, Manila Review Institute Inc. 2016 9. Reviewer for the Civil Service Examination, Manila Review Institute, Inc. 2016 10. World Geography, Rex Bookstore, Manila, 2006. 11. Philosophy of Education, Rex Bookstore, Manila, 2006 12. Historical, Philosophical and Legal Foundations of Education, Phoenix Publishing House, ,
1997.
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