Public International Law
-Branch of public law which regulates the relations of
states and other entities which have been granted
international personality.
-deals also with their relation with persons, natural or
juridical
Conflict of Laws
-Domestic law which deals with cases where there are
questions of the applicability of foreign law or the role
of foreign entities.
Bases of International Law
The law of Nature School rules of conduct
discoverable by every individual in his own conscience
and through application of right reasons
The Positivist School agreement of sovereign
states to be bound by it (express in conventional law,
implied on customary law, and presumed in general
principles)
Eclectic/Grotian School international law is
binding partly because it is good and right and partly
because states agreed to be bound by it
Divisions of International Law
1. The Laws of Peace Governs the normal
relations of states
2. The Laws of War rules during periods of
Hostilities
3. The Laws of Neutrality Rules governing states
not involved in the hostilities in relation to
states in war
Sources
A. Primary Sources
International Treaties and Customs when
concluded by a sizeable number of states and is
reflective of the will of the family members of nations
International Customs practices which,
through persistent usage, have grown to be accepted
by States as legally binding
Requisites
-State Practice a consistent and uniform
external conduct of States
-Opinio Juris accompanied with conviction
that the State is legally obligated to do so intl law, and
not through mere courtesy or comity, or because of
humanitarian reasons
General Principles of Law rules based on
natural law; rules because of their intrinsic merit, have
been accepted and are being observed by the majority
of civilized states
B. Subsidiary Sources
Decisions of Courts means of determination
of rules of law that is acceptable so long as they
correctly interpret and apply international law
Teaching of publicists learned writings of
publicists
Functions of International School (PFPE)
1. Promote international peace and security in the
community of nations and to prevent the use of force,
including war, in all international relations
2. Foster friendly relations among nations and
discourage use of force in the resolution of differences
among them
3. Provide for orderly regulation of conduct of states in
their mutual dealings
4. Ensure international cooperation in pursuit of certain
common purposes of economic, social, cultural or
humanitarian character
Bases of Applying International Law in Local
Jurisdiction
A. Doctrine of Incorporation Kelog-Brian Pact
(1928)
Sec.2 Art. II 1987 Constitution
- The Philippines renounces war as an
instrument of national policy, adopts the generally
accepted principles of international law as part of the
law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with
all nations.
Secretary of justice v. Lantion (G.R. No.
139465, Jan 18, 2000)
- In case of Conflict between and municipal law
and international law, apply municipal law
Tanada v. Angara (272 SCRA 18 1997)
- The Sovereignty of a State therefore cannot in
fact and in reality considered absolute. Certain
restrictions enter into the picture: (1) Limitations
imposed by the very nature of
membership in the family of nations; (2)
Limitations imposed by treaty stipulations
The Holy See v. Rosario, Jr. (December 1, 1994)
B. Doctrine of Transformation
- requires the enactment by the legislative body
of such international principles as are sought to be part
of municipal law.
-The generally accepted principles of
international law are not per se binding upon the State
but must first be embodied in legislation enacted by the
lawmaking body and so transformed into municipal law.
Subject of International Law
-Every entity that has rights and responsibilities under
International Law having capacity to maintain its rights
by bringing international claims
State a community of persons more or less numerous
(people) occupying a fixed territory (territory) and
possessed of an independent government organized for
political ends (government) to which the great body of
inhabitants render habitual obedience (sovereignty)
Doctrine of Acts of State
A nation is sovereign within its own borders and
its domestic actions may not be questioned in the
courts of another nation
Colonies a dependent political community consisting
of a number of citizens of the same country who have
migrated there form to inhabit another country but
remain subject to the mother state
Dependencies a territory distinct from the country
which the supreme sovereign power resides but
belongs rightfully to and subject to the laws and
regulations which the sovereign state may prescribe
Mandates Non-self-governing territories which have
been placed under international supervision to insure
their political, economic, social and educational
advancement
Trust Territories a colony or territory placed under
the administration of one or more countries by
commission of the U.N.
The Vatican Lateran Treaty established the creation
of Vatican as a separate State from Italy
The United Nations
Purpose of the UN (M-DAH)
-Maintain international peace and security
-Develop friendly relations among nations
-Achieve international cooperation
-Center for harmonizing actions of nations for
attainment these common goals
Structure of the UN
1. General Assembly Central organ of the UN where
all members are represented
Functions and Powers
Consider and make recommendations on
the general principles of cooperation for
maintaining international peace and
security, including disarmament
Discuss any question relating to
international peace and security and,
except where a dispute or situation is
currently being discussed by the Security
Council, make recommendations on it
Discuss, with the same exception, and make
recommendations on any questions within
the scope of the Charter or affecting the
powers and functions of any organ of the
UN
Initiate studies and make recommendations
to promote international law, the
realization of human rights and
fundamental freedoms, and international
collaboration in the economic, social and
humanitarian, cultural, educational and
health fields
Make recommendations for the peaceful
settlement of any situation that might
impair friendly relations among nations
Receive and consider reports from the
Security Council and other UN organs
Consider and approve the UN budget and
establish the financial assessment of
member states
!! Elect the non-permanent members of the
security council and the members of other
UN councils and organs and, on the
recommendation of the Security Council,
appoint the Sec-Gen !!
2. The Security Council organ responsible for the
maintenance of peace and security; undertakes
preventive and enforcement actions
3. Economic and Social Council exerts efforts towards
higher standards of living, solutions for international
economic, social, health and related problems universal
respect for and observance of human rights and
fundamental freedoms
as a separate state for purposes of conflict and entitled
to all rights and subjected to all the obligations of a full
pledged belligerent under the laws of war.
International Administrative Bodies
-Created by agreement between states: (1)
their purpose is mainly non-political, (2) they are
autonomous
SEAFDEC-AQD v. NLRC Feb 14, 1992
-One of the basic immunities of an international
organization is immunity from local jurisdiction.
4. Trusteeship Council organ charged with the
administration of the International Trusteeship System
(idle council)
Individuals an object of intl law who can act only
through the instrumentality of his own state in matters
involving other states.
5. The Secretariat the chief administrative organ
Concept of State
6. International Court of Justice (ICJ) judicial organ of
the UN; World Court governed by the statute which is
annexed to and made part of the UN Charter
Elements
-People
-Territory
-Government
-State
Seat Hague, The Netherlands, Peace Palace
(Yes. With The)
Members 15 judges
Term 9 years; 1/3 retires every 3 years (5 new
members to be elected every 3 years)
Jurisdiction
Interpretation of treaty
Question of international law
Existence of fact constituting a breach
of international obligation
Nature or extent of the reparation to be
made for the breach of an international
obligation
To render advisory opinions
Limits
1. Only states may be parties in cases before it
2. Consent of the parties is needed for the court
to acquire jurisdiction over a case
Belligerent Communities
- group of rebels under an organized civil
government who have taken up arms against the
legitimate government. When recognized, considered
People
Citizens a member of a country, native or
naturalized, having rights and owing allegiance to
such country
Nationals persons who are member of a
particular nation
Subjects member of a state in relation to his
government or owing allegiance to sovereign or other
ruler, or any member of a state except the sovereign
himself.
Territory
Terrestrial or Land Domain
Modes of acquiring Land Territory
Discovery and Occupation territory not
belonging to any state is placed under the
sovereign of the discovering state
Prescription territory of one state is
transferred to the sovereignty of another
state by reason of the adverse and
uninterrupted possession thereof by the
latter for a sufficiently long period of time
Cession territory belonging to one state is
transferred to the sovereignty of another
state in accordance with an agreement
between them.
Conquest Taking of possession of a
territory through armed force. For
acquisition of conquered territory, it was
necessary that the war had ended either by
treaty or by indication that all resistance
had been abandoned. Moreover, the
conqueror must have had the intention of
acquiring the territory and not just
occupying it.
Accretion accession cedat principali
Doctrine of Effective Occupation
-The nationals of the discovering state, in its
name or by its authority, must first take possession of
the territory, thereafter they must establish thereon an
organization or government capable of making its laws
respected
form part of the territory. Main purpose is to protect
the territorial interests of an archipelago
Kinds
Coastal situated close to a mainland and may
be considered a part thereof
Mid-ocean situated in the ocean at such
distances from coasts of a firm land
United Nations Convention n the Laws Of the Sea
(UNLCOS)
-Law of the Sea Convention or Law of the Sea
treaty
-Defines the rights and responsibilities of
nations in their use of the worlds oceans,
establishing guidelines for businesses, the
environment, and the management of marine
natural resources.
- Now regarded as a codification of the
customary international law on the issue.
International Tribunal for the Laws of the Sea (ITLOS)
Internal Waters
- Bodies of waters within the land mass and
waters adjacent to the coasts of the state up to a
specified limit.
Straight Baseline Method
- Straight lines are made to connect appropriate points
on the coast without departing radically from its general
direction.
Maritime or Fluvial Domain
- Rivers, Bays, Straits, Gulfs
Territorial Sea
-belt of coastal waters extending at most 12 nautical
miles from the baseline
-Sovereign territory of the state
-Foreign military and civilian ships are allowed innocent
passage
Thalweg Doctrine for boundary rivers, in the
absence of an agreement between the riparian states
the boundary line is laid on the middle of the main
navigable channel
Middle of the Bridge Doctrine where there is
bridge over a boundary river, the boundary line is
middle or center of the bridge
Archpelagic Doctrine
- Integration of a group of islands to the sea and
their oneness so that together they can constitute one
unit, one country and one state.
- An imaginary line single baseline is drawn
around the islands by joining appropriate points of the
outermost islands of the archipelago with straight lines
and all islands and waters enclosed within the baseline
Contiguous Zone
-outer edge of the territorial sea to up to 24 nautical
miles from the baseline
- state has limited control for the purpose of preventing
or punishing infringement of its customs, fiscal,
immigration or sanitary laws and regulations
Exclusive Economic Zone
- extends 200 nautical miles from the baseline of the
territorial sea
- coastal nation has control of all economic resources
within its exclusive economic zone and pollution of
those resources.
- cannot regulate or prohibit passage or loitering above,
on, or under the surface of the sea, innocent or
belligerent.
Continental Shelf
-stretch of the seabed adjacent to the shores of a
particular country to which it belongs
High Seas
-res communes or res nullius
Doctrine of Hot Pursuit
-If an offense is committed by a foreign merchant vessel
within the territorial waters of the coastal state, its own
vessel may pursue the offending vessel into the open
sea (high sea) and upon capture bring it back to its
territory
Requisites:
- must have begun before the offending vessel
has left the territorial waters or contiguous
zone of the coastal state
-pursuit must be continuous or unabated
-conducted by warship, military aircraft, or
government ships authorized for the purpose
-it ceases as soon as the ship being pursued
enters the territorial sea of its own or of a 3rd
state.
Government
Forms of Government (26)
-Anarchy
-Commonwealth
-Communism
-Confederacy (Confederation)
-Constitutional
-Constitutional Democracy
-Democracy
-Democratic Republic
-Dictatorship
-Ecclesiastical
-Federal (Federative)
-Federal Republic
-Maoism
-Marxism
-Marxism-Leninism
-Monarchy
-Oligarchy
-Parliamentary Democracy
-Parliamentary Government (CabinetParliament)
-Parliamentary Monarchy
-Republic
-Socialism
-Sultanate
-Theocracy
-Totalitarian
Doctrine of Recognition of Government
1. Wilson-Tobar Doctrine precludes recognition of
government established by revolution, civil war, coup
detat or other forms of internal violence until the freely
elected representatives of the people have organized a
constitutional government
2. Estrada Doctrine dealing or not dealing with the
government established through a political upheaval is
not a judgement on the legitimacy of the said
government
3. Stimson Doctrine precludes recognition of any
government established as a result of external
aggression.
Effects of recognition of a State or Government
- recognition is only provisional and only for the
purposes of hostilities
1. responsibility for acts of rebels resulting to injury to
nationals of recognizing state shall be shifted to rebel
government
2. legitimate government recognizing the rebels as
belligerents shall observe laws or customs of war in
conducting hostilities
3. 3rd states recognizing belligerency should exercise
neutrality
Kinds of Recognition of Government
De Facto recognition is only provisional; depends on
the duration of the armed struggle
De Jure relatively permanent; vests title to properties
of government even abroad and brings about full
diplomatic intercourse and observance of diplomatic
immunity.
Requisites:
-Stable and effective
-no substantial resistance to its authority
-shows willingness and ability to discharge its
international obligation
-must enjoy popular consent or approval of the
people
Sovereignty
- Supreme and uncontrollable power inherent in a State
by which that State is governed. It is the supreme
power of the state to command and enforce obedience,
the power to which, legally speaking, all interests are
practically subject and all wills subordinate
Kinds
Internal the relationship between sovereign and its
own subjects
External concerns the relationship between a
sovereign power and political bodies outside itself, such
as other nation states
Is Sove. Absolute?
- (Tanada v. Angara) While sovereignty has traditionally
been deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions and
limitations voluntarily agreed to by the Philippines,
expressly and impliedly, as member of the family of
nations
-Doctrine of Incorporation (Kelog-Brian Pact)
Effect of change of Sove.
Political Laws of the former sovereign are
automatically abrogated, unless they are expressly reenacted by an affirmative act of the new sovereign
Municipal Laws remains in force
Belligerency (see Belligerent Communities)
Conditions of Belligerency
-there is an organized civilian government
-occupies a substantial portion of territory
-conflict is serious and outcome is uncertain
-willing to observe the laws of war
Effects of recognition of belligerency (see effects of
recognition of government)
Principle of State Continuity
-the state continues as a juristic being notwithstanding
changes in its circumstances provided only that such
change do not result in the loss of any of its essential
elements.
Creation of New State (SARAP-U)
-Peaceful acquisition of Independence
-Revolution
-Unification of Several States
-Secession
-Agreement
-Attainment of Civilization
Extinction of State (OEAMDDP)
-Overthrow of Government resulting in Anarchy
-Emigration en masse
-Annexation
-Merger or Unification
-Dismemberment
-Dissolution of Federal Government
-Partial loss of Independence
Fundamental Rights of States (EsSiETjL)
Right of Existence and Self-Defense
- Most comprehensive of all as all other rights of a state
flow from it. They may take measures including the use
of force as may be necessary to counter-act any danger
to its existence.
Aggression Use of armed force by a state
against sovereignty, territorial integrity, or
political independence of another state or in
any manner inconsistent with the UN charter.
Requisites of Self-Defense
-Armed Attack
-Self-defense action taken by the attacked state
must be reported immediately to the Security
Council (UN)
-Such action shall not affect in anyway the right
of the Security Council to take action at anytime
as it deems necessary to maintain or restore
international peace
Right of Sovereignty and Independence
Sovereignty totality of the powers, legal
competence, and privileges arising from
customary international law, and not
dependent on the consent of another state
Independence - freedom from control by other
state or group of states and not freedom from
restrictions that are binding on all states
forming the family of nations; carries with it by
necessary implication the correlative duty of
non-intervention
Ranks
Consul-General
Consul
Vice-Consul
Consular Agent (4)
Right of Equality
-Parem Habet (latin)
-Equality of All Sovereign
Extraterritoriality
- Authority over persons, things or acts outside its
territorial limits by reason of their effects to its territory
Right of Territorial Integrity and Jurisdiction
- A state cannot take measures on the territory of
another state by way of enforcement of national laws
without the consent of the latter.
Treaty
- An international agreement concluded between states
in written form and governed by international law
whether embodied in a single instrument or in two or
more related instruments
Right of Legation
-Right of the state to maintain diplomatic relations with
other states
-Governed by the Vienna Convention of Diplomatic
Relations (1961)
-Active Right to send diplomatic representative
-Passive Right to receive diplomatic representative
Agents of Diplomatic Intercourse
-Heads of State
-Foreign secretary or minister
-Members of diplomatic service
Functions of Diplomatic Missions
-Representation
-Protection of the interests of the sending state
and its nationals
-Negotiation
Aggreation
-the resume of a Diplomatic Agent
Kinds of Consuls
De Missi sent by the sending state
De Electi requested by the receiving state
Privileges and Immunities Accorded to Diplomatic
Envoys
Jeffrey Liang v. People, Mar 26, 2001
-immunity from suit in the conduct of necessary
functions
Requisites of a Valid Treaty
a. Entered into by parties having treaty making capacity
b. Through their authorized organs or representatives
c. Without attendance of duress, fraud, mistake or
other vices of consent
d. Lawful subject matter and object
e. Ratification in accordance with their respective
constitutional processes
Bayan v. Executive Secretary October 10, 2000 G.R. No.
138570
Steps in treaty making process (NSPER)
1. Negotiation
2. Signature
3. Ratification
4. Exchange of instruments of ratification
5. Registration with the UN
Concordat A treaty or agreement between
ecclesiastical and civil powers to regulate the relations
between the church and the state in those matters
which, in some respect, are under the jurisdiction of
both
Doctrine in Treaties
Jus Cogens States cannot deviate from their
agreement
- If a treaty, at the same time of its conclusion, conflicts
with jus cogens it is void
-rule which has the status of a peremptory norm of
international law
Elements
- a norm accepted and recognized by the
international community of States as a whole
- as a norm from which no derogation is
permitted
- it can only be modified by a subsequent norm
having the same character
Pacta Sunt Servanda Every treaty in force is binding
upon the parties to it and must be performed by them
in good faith.
- This applies despite hardships on the contracting State
such as conflicts between the treaty and its Constitution
Rebus Sic Stantibus - legal principle which would justify
non-performance of treaty obligations where an
unforeseen or substantial changes occur which would
render one of the parties thereto unable to undertake
treaty obligations as stipulated therein
Most Favored Nation Clause pledge made by a
contracting party to a treaty to grant other party
treatment not less than favourable than that which had
been given or may be granted to the most favoured
among parties
Termination of Treaties (BE VOID LOAN)
- Extinction of one party if treaty is bipartite
- Expiration of Term
- Voidance
- Outbreak of War
- Impossibility of performance
- Desistance of parties
- Loss of subject matter
- Occurrence of vital change of circumstances
- Accomplishment of purpose
- Novation
Protocol De Cloture
- A Final Act
- An instrument which records the winding up of the
proceedings of a diplomatic conference and usually
includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed
upon and signed by the plenipotentiaries attending the
conference.
- It is not a treaty itself, hence does not require the
concurrence of the Senate
- Adopted without ratification
Nationality an affiliation with a particular nation or
sovereign state
- Nationality is inferior to citizenship, insofar as the
latter implies a full set of political privileges and the
former do not.
- People generally acquire a nationality by birth within a
particular countrys territory, by inheritance from one
or both parents, or by naturalization.
Doctrine of Effective Nationality
- Art. 5 Hague Convention 1930 Conflict of Nationality
Laws
- Within a third state, a person having more than one
nationality shall be treated as if he had only one:
- either the nationality of the country in which
he is habitually and principally resident
- or the nationality of the country with which in
the circumstances he appears to be in fact most
closely connected
Statelessness
- A condition or status of an individual who is born
without any nationality or who losses his nationality
without retaining or acquiring another.
De Jure Statelessness
- no recognized state in respect of which subject has
legally no basis to claim nationality
De Facto Statelessness
- may have a legally meritorious claim but is precluded
because of circumstances of civil disorder or fear of
persecution
Aliens
Treatment of Aliens
- No State is under obligation to admit aliens
- The State can determine in what cases and what
conditions it may admit aliens
Deportation expulsion of an alien considered
undesirable by local state, usually but not necessary to
his own state.
Reconduction forcible conveying of aliens back to
their home state without any formalities.
Doctrine of State Responsibility
- State may be held liable for injuries and damages
sustained by the alien while in the territory of the state
provided:
- The act or omission constitutes an
international delinquency
- Directly or indirectly imputable to the State
- Injury to the Claimant State indirectly because
of damage to its national
Calvo Doctrine provision inserted in contracts in
which the foreigner agrees in advance not to seek the
diplomatic protection of his national State
Drago Doctrine Hague Convention of 1907
- The contracting powers agree not to have
recourse to armed forces for the recovery of contract
debts claimed for the government of one country by the
government of another country as being due to its
nationals. (Collecting public debts)
Refugees
- UN Convention to the Status of Refugees 1951 and UN
Protocol 0f 1976
- A person who, owing to a well-founded fear of
persecution for reasons of race, religion, nationality,
membership of a particular social group or political
opinion, is outside her or his nationality and who is
unable or unwilling to return.
Requisites
- Those who are outside the country of his
nationality or if stateless, outside the country of
his habitual residence
- Lacks national protection
- Fears persecution
Non-refoulement prohibits a state to return or expel a
refugee to the territory where he escaped because his
life or freedom is threatened.
- the state is under obligation to grant temporary
asylum
Asylum
1. Diplomatic Asylum refuge in diplomatic premises
2. Political Asylum refuge in another state for political
offense; danger to life and no assurance of due process
Extradition
- a process wherein surrender of a fugitive by one state
to another where he is wanted for prosecution or if
already convicted, for punishment.
- Surrender is made at request of latter state on basis of
extradition treaty
Pacific or Amicable Methods (NETCAMJR)
International Extradition and Interstate Rendition
- Article IV, Section 2, Clause 2
- A person charged in any state with treason, felony, or
other crime who shall flee from justice, and be found in
another state, shall on demand of the executive
authority of the state from which he fled, be delivered
up, to be removed to the state having jurisdiction of the
crime.
Enquiry an investigation of the points in question with
the view that this will contribute to the solution of the
problem; made by an impartial fact finding body
General Principles of Extradition
- Treaty based on consent of parties
- 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 offenses in the
treaty
- Non-list Type of Treaty - offenses punishable under the
laws of both states by imprisonment of at least 1 year is
an extraditable offense
- Political and religious offenses are not extraditable
- Need not be a citizen of the demanding state
- offense committed within the territory or against the
interest of the demanding state.
Conciliation 3rd party participates in order to settle
the conflict as solicited by the disputants. Suggestions
of conciliator are not binding.
Purpose of Extradition
- USA v. Purganan Sept. 24, 2002
1. determine whether the extradition request complies
with the extradition treaty
2. Whether the person sought is extraditable
Attenant Clause
- assassination of head of state or any member of his
family is not regarded as political offense for purposes
of extradition; genocide
Negotiation A process wherein there is a discussion
by the parties of their respective claims and
counterclaims with a view to the just and orderly
adjustment; 1st step
Tender of Good Offices a method by which a third
party attempts to bring the disputing states together in
order that they may be able to discuss the issues in
contention
Arbitration a process by which the solution of a
dispute is entrusted to an impartial tribunal usually
created by the parties themselves under a charter
known as the compromise. The proceedings are
essentially judicial and the award is, by previous
agreement, binding on the parties.
Medication - a 3rd party actively participates in the
discussion in order to reconcile the conflicting claims.
Suggestions of mediator are merely persuasive.
Judicial Settlement usually compulsory; the law
applied by the tribunal is independent of the will of the
parties
Resort to International Organizations/Regional
Organizations resorted to by the parties on their own
volition or taken by the body itself at its own instance if
allowed by agreement of the members.
Hostile Methods (SIRR)
International Dispute
- Actual disagreement between states regarding
conduct to be taken by one of them for protection or
vindication of interest of other
Severance of diplomatic relations no obligation to
maintain diplomatic relations, severance of diplomatic
relations is not prohibited.
- Dist. from suspension of diplomatic relations =
suspension involves withdrawal of diplomatic
representatives but not consular representation.
Intervention act by which state interferes with
domestic or foreign affairs of another state through the
use of force or threat of force.
Sanctioned when:
- act of self-defense
- when decreed by the Security Council as a
preventive enforcement action for the
maintenance of international peace and
security
- when such action is agreed upon in a treaty
- when requested from fellow states or from
the UN by the parties to a dispute or a state
best by rebellion
*see Drago Doctrine
Retorsion consists of unfriendly, but not
internationally illegal act of one state against the other
in retaliation of the latters unfriendly or inequitable
conduct, usually resorted to by the states in cases of
unfair treatment of their citizens abroad.
- need not take any form of retaliation in kind, so long
as not internationally illegal act
- not contrary to public international law or treaty
obligation
Reprisal denotes any kind of forcible or coercive
measures whereby one state seeks to exercise a
deterrent effect or to obtain redress or satisfaction,
directly or indirectly, for the consequences of the illegal
acts of another state, which has refused to make
amends for such illegal conduct
- Display of force
- Pacific blockade
- Occupation of territory
- Suspension of treaties
- Embargo detention by state seeking redress
of vessels of offending state or its nationals,
whether such vessels are found in territory of
former, or in the high seas
War armed contention between public forces of
states or other belligerent communities implying
employment of force between parties for purpose of
imposing their respective demands upon each other.
Principles of War
- Military Necessity
- Principle of Chivalry
- Principle of Humanity
Philippine International Humanitarian Law (R.A. 9851)
Punishable Acts
- Genocide (Sec.6)
- War Crimes (Sec.4)
- Crimes against humanity (Sec.5)
Sanctions of the Laws of War
- Protest lodge with the neutral powers
- Reparation for damages
- Punishment of war crimes
- Compensation
Jus ad bellum a set of criteria that are to be consulted
before engaging in war; in order to determine whether
entering into war is permissible
Jus in bello standards or limits defining acceptable
conduct while already engaged in war. Doctrines
concerning the protection of civilians in wartime, or the
need of proportionality when force is used
Commencement of War
- commences on the date specified in the declaration or
on the date it is communicated to the enemy
- in International Law, war commences upon the
commission of an act of force by one party done animo
belligorendi or even if that party had no such intent, if
the other party elects to treat the act of force as having
been done with such intent
1. Declaration of War communication by one state to
another informing the latter that the condition of peace
between them has come to an end and condition of war
has taken place.
2. Ultimatum with a Conditional Declaration of War a
written communication by one state to another which
formulates, finally and categorically, the demands to be
fulfilled if forcible measures are to be averted.
*Ultimatum the final and categorical proposal made
in negotiating a treaty, contract or the like.
Termination of War
1. Simple Cessation of Hostilities the states involved
in the war ceased their aggression against the other or
has lowered their arms against the other, and the other
state reciprocates it by doing the same as a sign of
intent to terminate or cease the war.
2. Treaty of Peace the states involved in the war or
the states that are in conflict with one another enter
into a peace treaty or agreement duly signed by the
leaders of said states for the cessation or termination of
the war that they are involved in and to resolve their
conflicts amicably and through diplomacy
Treaty of Versales WWI
Treaty of Potsdam WWII
3. Unilateral Declaration by the Victor usually take
the form of a decree or a presidential proclamation or a
notice in the official gazette.
Jus Postiliminy revival or reversion to the old laws and
sovereignty of territory which has been under
belligerent occupation once control of the belligerent
occupant is lost over the territory affected; by treaty
Uti Possidetis allows retention of property or territory
in the belligerents possession at the time of the
cessation of hostilities
Effect of Outbreak of War
1. The laws of peace cease to regulate the relations of
the belligerents and superseded by the laws of war.
2. Diplomatic and consular relations between the
belligerents are terminated, and their respective
representatives are allowed to return to their respective
countries
3. Treaties of political nature, such as treaties of
alliance, are automatically cancelled, but those which
are precisely intended to operate during war, such as
one regulating the conduct of hostilities, are activated.
4. Enemy public property found in the territory of the
other belligerent at the outbreak of the hostilities is
with certain exceptions, subject to confiscations. Enemy
private property may be sequestered, subject to return
or reimbursement after the war in accordance with the
treaty of peace.
Combatants those who engage directly in the
hostilities. Only the combatants may lawfully wage war
and are thus subject to direct attack from the enemy.
When captured, they are entitled to treatment as
prisoners of war.
a. members of the armed forces except those not
actively engaged in combat, such as chaplains and
medical personnel
b. irregular forces provided that
(1) they are commanded by a person
responsible for his subordinates
(2) they wear a fixed distinctive sign
recognizable at a distance
(3) they carry arms openly, and
(4) they conduct their operations in accordance
with the laws and customs of war
c. inhabitants of unoccupied territory who, on approach
of the enemy, spontaneously take up arms to resist the
invading troops without having had time to organize
themselves, provided only that they carry arms openly
and observe the laws and customs of war.
d. officers and crew of merchant vessels who forcibly
resist attack
Non-privileged combatants non-individuals who take
up arms or commit hostile acts against the enemy
without belonging to the armed forces or forming part
of irregular forces which comply with the requirements
laid down in the relevant international covenants.
- They are not entitled to the status of prisoner of war,
they shall nevertheless be treated with humanity and
shall in no case be deprived of the rights to fair and
regular trial as provided in the 1949 Geneva Convention
Relative to the Treatment Civilian Persons in the Time of
War.
Non-combatants those who should not be subjected
to attack as they are not supposed to participate in the
actual fighting. They do not enjoy identical rights when
captured but are nevertheless protected from
inhumane treatment under the Geneva Convention of
1949 relative to the treatment of civilian persons in the
time of war.
Prisoners of War - applies to prisoners of war who are
captured in a properly declared war or any other kind of
armed conflict, even if any of the combatant powers
do not recognize the existence of a state of war. Also
applies to partial or total occupation of territory even if
the occupation meets with no armed resistance.
1. members of the armed forces, as well as members of
militias or volunteer corps forming part of such armed
forces
2. members of other militias or volunteer groups,
including those of organized resistance movements,
subject to compliance with certain conditions
3. members of regular armed forces professing
allegiance to a government or an authority not
recognized by the capturing state
4. various categories of person accompanying an army
unit, such as civilian members of military aircraft crew,
war correspondents, etc. provided they are authorized
to be with the army or unit
5. members of the crew of merchant vessels and civilian
aircraft who do not benefit by more favourable
treatment under any other provisions of international
law
6. members of the population of non-occupied territory
who take up arms as a levee en masse against an
invading enemy.
Rights of POWs
1. humane treatment
2. not subject to torture
3. allowed to communicate with their families
4. receive food, clothing, religious articles, medicine
5. bare minimum information
6. keep personal belongings
7. proper burial
8. group according to nationality
9. establishment of an information bureau
10. repatriation for sick and wounded
Neutrality condition of a state that does not take part,
directly or indirectly in war between other states. It is
dependent on attitude of neutral state, which is free to
join either of belligerents any time it sees fit. It is
governed by the laws of nations and is only obtained
only during war.
Neutrality a result of a treaty wherein duration and
other conditions are agreed upon by neutralized state
and other states and is governed by the Neutralization
Agreement. It is intended to operate in peace and war.
Duties of a Neutral State
1. Abstentation abstain from taking part in the
hostilities and from giving assistance to either
belligerent
2. Prevention to prevent its territory from being used
by the belligerents in the conduct of hostilities
3. Acquiescence acquiescence in certain restrictions
and limitations that the belligerents may find necessary
to impose, especially in connection with international
commerce
Right of Angary belligerent 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.
Right of Visitation Right of belligerent vessels and
aircraft to intercept and inspect neutral merchant
vessels on the high seas for the purpose of determining
if they are in any way connected with hostilities,
carrying contraband, attempting to reach a blockade, or
engaged in unneutral service, in favour of the other
belligerent.
Prohibited Acts of Neutral States
1. Breach of Blockade occurs when a vessel, with the
knowledge of the existence of the blockade, enters or
leaves the blockade port through the blockaded or
forbidden approach. A mere attempt to violate the
blockade is treated as a consummated blockade.
2. Carriage of Contrabands the penalty for carriage of
contraband would be confiscation of the contraband
cargo; innocent cargo belonging to the same owner
would also be subject to confiscation under the doctrine
of continuous transport when they are reloaded on
another vessel or other form of transportation
Kinds of Contrabands
1. Absolute Contrabands goods which are necessarily
useful for war under all circumstances, like rifles and
ammunitions. They are subject to seizure so long as
they are bound for enemy or enemy-held territory
2. Conditional Contrabands goods, like food and
clothes, which have both civilian and military purposes.
They may be seized only when it can be shown that
they are intended for the armed forces of the
authorities of the belligerent government.
Doctrines related to Carriage of Contrabands
A. Doctrine of Ultimate Consumption Under this
doctrine, goods intended for civilian use which may
ultimately find their way to and be consumed by the
belligerent forces are also liable to seizure on the way.
B. Doctrine of Ultimate Destination The liability of
contraband to seizure is determined not by their
ostensible, but by their real destination. Even if the
vessel stops at an intermediate port, it will be
considered as one continuous voyage provided it could
be shown that its cargo will ultimately be delivered to a
hostile destination.
3. Performance of Unneutral Service consists of acts
of a more hostile character than carriage of contraband
or breach of blockade, which are undertaken by
merchant vessels of a neutral state in aid of any of the
belligerents. It denoted carriage by neutral vessel of
certain persons and dispatches for the enemy. A neutral
vessel engaged in unneutral service be captured by a
belligerent and treated, in general, in the same way as
neutral vessels captured for carriage of contraband.
4. Prize refers to a thing captured at sea in time of
war, such as a neutral merchant vessel taken by a
belligerent warship for engaging in hostile activities or
resisting visit and search, or because of reasonable
suspicion that is liable to confiscation.
Prize Court a tribunal established by a belligerent
under its own laws, in its territory or in the territory of
any of its aliens, for the purpose of determining the
validity of maritime captures
Termination of Neutrality
1. When the State joins the War
2. Conclusion of Peace
Corfu Channel Case (UK v. Albania)
- On the question of innocent passage, the Court found
in favor of the United Kingdom, voting fourteen to two.
Notably, the Court held that a right to innocent passage
existed during times of peace through straits like the
Corfu Channel, which connected two parts of the high
seas. The Court accepted that some Albanian regulation
of passage through the Channel would have been
acceptable, but not to the extent of demanding prior
authorization, or of barring the passage of warships
outright. This served to clarify the 1930 Hague
Conference with respect to international straits. Bing
Bing Jia stated that this decision meant that in
peacetime, a country could not prohibit the passage of
all vessels, or otherwise require authorization. Jia goes
on to argue that, because Albania was unable to rapidly
distinguish between the passage of Greek and other
vessels during times of high political tensions, the
requirement of prior notification could be lawful.
- In rejecting the British argument that Operation Retail
was a justified intervention, the Court famously
heldthat such a right was "the manifestation of a policy
of force, such as has, in the past, given rise to most
serious abuses and such as cannot, whatever be the
present defects in international organization, find a
place in international law". The Court also rejected the
British arguments that Operation Retail was justified as
self-protection or self-help, holding that "respect for
territorial sovereignty is an essential foundation of
international relations". While the Court found that
Albania's conduct in the wake of the mining constituted
extenuating circumstances for the United Kingdom, that
conduct did not validate Operation Retail.
The Paquete Habana Case
- The United States Supreme Court cited lengthy legal
precedents established to support the existence of a
customary international law that exempted fishing
vessels from prize capture, dating all the way back to
ancient times and occurring repeatedly between Great
Britain and France. In 1403, King Henry IV of England
issued his officers leave fisherman alone during times of
war. He then signed a treaty with France reaffirming
this act between both parties. Again in 1521 between
Emperor Charles V and Francis I of France a treaty was
assigned. This treaty was invoked due to a desperate
rise in the markets for herring. With the war between
the two countries raging on, fisherman dared not
venture out to sea. Therefore, a treaty was necessary
on both accounts to prevent starvation among those
who relied upon cheap herring, namely the lower
classes. Situations similar to this continued to crop up
throughout history prior to the Paquete case. Using this
as a basis for customary law, the court then eventually
found the capture of both vessels as "unlawful and
without probable cause", reversed the District Court's
decision, and ordered the proceeds of the auction as
well as any profits made from her cargo to be restored
to the claimant, "with damages and costs".
Nicaragua vs. USA
- The ruling did in many ways clarify issues surrounding
prohibition of the use of force and the right of selfdefence. Arming and training the Contra was found to
be in breach with principles of non-intervention and
prohibition of use of force, as was laying mines in
Nicaraguan territorial waters.
Nicaragua's dealings with the armed opposition in El
Salvador, although it might be considered a breach with
the principle of non-intervention and the prohibition of
use of force, did not constitute "an armed attack",
which is the wording in article 51 justifying the right of
self-defence.
The Court considered also the United States claim to be
acting in collective self-defence of El Salvador and found
the conditions for this not reached as El Salvador never
requested the assistance of the United States on the
grounds of self-defence.
In regards to laying mines, "...the laying of mines in the
waters of another State without any warning or
notification is not only an unlawful act but also a breach
of the principles of humanitarian law underlying the
Hague Convention No. VIII of 1907.
Certain Norwegian Loans (France v. Norway)
- The French Government pointed out that between
France and Norway there existed a treaty which made
the payment of any contractual debt a question of
international law and that in this connection the two
States could not therefore speak of domestic
jurisdiction. But the aim of the treaty referred to, the
Second Hague Convention of 1907 respecting the
limitation of the employment of force for the recovery
of contract debts, was not to introduce compulsory
arbitration; the only obligation imposed by the
Convention was that an intervening power should not
have recourse to force before it had tried arbitration.
The Court could, therefore, find no reason why the fact
that the two Parties were signatories to the Second
Hague Convention should deprive Norway of the right
to invoke the reservation in the French Declaration. The
French Government also referred to the Franco
Norwegian Arbitration Convention of 1904 and to the
General Act of Geneva of September 26th, 1928.
Neither of these references, however, could be
regarded as sufficient to justify the view that the
Application of the French Government was based upon
the Convention or the General Act: the Court would not
be justified in seeking a basis for its jurisdiction different
from that which the French Government itself set out in
its Application and by reference to which the case had
been presented by both Parties to the Court.
