Professional Documents
Culture Documents
HI STORY
Ancient International Law governed exchange of diplomatic emissaries, peace
treaties, etc. in the world of ancient Romans and earlier. The progressive rule of JUS
GENTIUM seen as a law common to all man became the law of the vast Roman
Empire.
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6.) Dissolution of Soviet Union resulting in end of Col d War with re-
emergence of International relations based on multiple sources of power and not
mainly ideology.
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therefore, a WEAKER
Part of Political Law LAW
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1. The LAWS of PEACE
a. Governs the normal relations of states
b. Human Rights Law
2 CLASSIFICATIONS:
1. Formal Sources:
a. The various processes by which rules come into existence (e.g.
legislation, treaty making and judicial decision making and the practice of
states)
2. Material Sources:
a. The substance and content of the obligation. They identify what
the obligations are. Also referred to as evidence of
International Law (e.g. state practice, UN resolutions, treaties, judicial
decisions and writings of jurists)
The doctrine of sources lay down conditions for verifying and ascertaining
the existence of legal principles . The conditions are observable
manifestations of the wills of the states as revealed in the processes by which
norms are formed (treaty and state practice accepted as law.) The process of
verification is inductive and positivistic.
PRIMARY SOURCES
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1. International Treaties and Conventions
a. Are voluntarily entered into by states and encapsulates
express obligations entered into,
2. International Customs
a. These are the consistent practice of states adopted over
several years
b. Is usually invoked where there are no treaties that exist to
cover a particular issue or situation.
c. A custom need not be worldwide as it can be limited to a region
only
3. General Principles of International Law
a. These are the accepted principles of law under major legal
systems
i. e.g. all states created equal
SUBSIDIARY SOURCES
4. Decisions of Courts
a. Decisions of the International Court of Justice and other international
Tribunals are given weight. Decisions of municipal or domestic
courts are given lesser weight except if they pertain to
precedent-setting cases such as the POQUETE HABANA CASE
5. Teachings of Publicists
a. The court shall apply the teachings of the most highly qualified
publicists of the various nations. As subsidiary means for the
determination of rules of law
i. Publicist: learned Writers
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First, efforts should first be exerted to harmonize them, so as to give
effect to both. This is because it is presumed that municipal law was enacted with
proper regard for the generally accepted principles of international law in observance
of the incorporation clause.
In case of conflict, the courts should harmonize both laws first and if
there exists an unavoidable contradiction between them, the principle of
LEX POSTERI OR DEROGAT PRI ORI-a treaty may repeal a statute and a
statute may repeal a treaty- will apply . But if these laws are found in conflict
with the Constitution, these laws must be stricken out as invalid.
In states where the constitution is the highest law of the law of the land, such as
in ours, both statutes and treaties may be invalidated if they are in conflict
with the constitution.
Doctrine Of Transformation
Requires the enactment by the legislative body of such international law
principles as are sought to be part of municipal law.
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Soft Law vs. Hard. Law
Soft law means commitments made by negotiating parties that are not
legally binding.
Hard law means binding laws. To constitute law, a rule, instrument or
decision must be authoritative and prescriptive. In international law, hard
law includes self-executing treaties or international agreements, as
well as customary laws . These instruments result in legally enforceable
commitments for countries (states) and other international subjects
Theory of Dualism
International Law and Domestic Law are distinct and separate . The
application of international law is limited by the Domestic Law or the
States Constitution. It would appear that the Philippines is a dualist state.
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SUBJECTS:
1. State
A group of peopl e, living together in a fixed territory, organized for
political ends under an independent government , and capable of entering
into international relations with other states .
Elements: (PT-GS)
a. Peopl e
b. Territory
c. Government
d. Independence or Sovereignty
b. Dependency
A territory distinct from the country which the supreme sovereign
power resides but belongs rightfully to it and subject to the laws and
regulations which the sovereign may prescribe
4. The Vatican
In 1928, Italy and Vatican concluded the Lateran Treaty for the purpose of
assuring to the Holy See absolute and visible independence and of
guaranteeing to it absolute and indisputable sovereignty in the field of
international relations
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The Lateran Treaty established the statehood of the Vatican City "for the
purpose of assuring to the Holy See absolute and visible independence and of
guaranteeing to it indisputable sovereignty also in the field of international relations"
The Vatican City fits into none of the established categories of states, and the
attribution to it of "sovereignty" must be made in a sense different from that in which it
is applied to other states.
The Vatican City represents an entity organized not for political but
for ecclesiastical purposes and international objects.
Despite its size and object, the Vatican City has an independent
government of its own, with the Pope, who is also head of the Roman
Catholic Church, as the Holy See or Head of State , in conformity with its
traditions, and the demands of its mission in the world. Indeed, the world-wide interests
and activities of the Vatican City are such as to make it in a sense an "international
state"
One authority wrote that the recognition of the Vatican City as a state has
significant implication that it is possible for any entity pursuing objects essentially
different from those pursued by states to be invested with international personality.
The Republic of the Philippines has accorded the Holy See the
status of a foreign sovereign . The Holy See, through its Ambassador, the Papal
Nuncio, has had diplomatic representations with the Philippine government since
1957 (Rollo, p. 87). This appears to be the universal practice in international relations.
Principles:
jurisdiction of the receiving state over any real action relating to private
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immovable property situated in the territory of the receiving state
which the envoy holds in behalf of the sending state for the purposes of the
mission.
Articles 20-22 of 1961 Vienna Convention on Diplomatic Relations
Lateran Treaty
(1929) Pact of mutual recognition between Italy and the Vatican, signed in the
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Functions: (S-BCDE)
i. Supervisory
ii. Budgetary
iii. Constituent
iv. Deliberative
v. Elective
b. Security Council
Organ responsible for the maintenance of peace and security ;
undertakes preventive and enforcement actions
Membership:
1. Permanent Members (FRUCU)
China
UK
France
Russia
USA
2. Non-Permanent Members
5- from African and Asian States
2- from Latin American States
2- from Western European and Other States
1-from Eastern European States
d. Trusteeship Council
Organ charged with the administration of the International Trusteeship
System (idle Council)
e. The Secretariat
Chief administrative organ of the UN
Current Secretary General(as of 2012)- Ban Ki-Moon of South
th
Korea(8 )
Secretaries-General serve for five-year terms that can be renewed
indefinitely
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Court is composed of 15 judges, who are elected for terms of office
of nine years by the United Nations General Assembly and the
Security Council.
Election every 3 years
Peace palace in Hague, Netherlands
Must possess the qualifications required in their respective
countries for appointment to the highest judicial offices
Cezar Bengzon of SC elected to the I CJ
6. Belligerent Community
They are group of rebel s under an organized civil government who
have taken up arms against legitimate government. When
recognized, considered as a separate state for purposes of conflict and
entitle to all the rights and subjected to all the obligations of a full
pledged belligerent under the laws of war.
Issue: WON SEAFEC- ACD is immune from suit owing to its international character
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Held: YES, being an intergovernmental organization, SEAFDEC including its
Departments (AQD), enjoys functional independence and freedom from
control of the state in whose territory its office is located.
One of the basic immunities of an international organization is immunity
from local jurisdiction, i .e, that it is immune from the legal writs and processes
issued by the tribunals of the country where it is found. The obvious reason for this is
that the subjection of such an organization to the authority of the local courts would
afford a convenient medium thru which the host government may interfere in
their operations or even influence or control its policies and decisions of
the organization ; besides, such subjection to local jurisdiction would impair the
capacity of such body to discharge its responsibilities impartially on behalf of its
member-states
8. Individuals
Only as an object of international law who can act only through the
instrumentality of his own state in matters involving other states
2. Territory
It is the fixed portion of the surface in the earth in which the peopl e
of the state reside
A defined territory is necessary for jurisdictional reasons and in order to
provide for the needs of the inhabitants
o As a practical Requirement:
It should be big enough to be self- sufficient and
small enough to be easily administered and
defended
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Modes of Acquiring Land Territory
2. Prescription
Continuous and uninterrupted possession over a long period of
time, just like in civil law.
In international law, however, there is no rule of thumb as to the length
of time needed for acquisition of territory through prescription
Grotius Doctrine if Immemorial Prescription:
Uninterrupted possession going beyond memory
3. Cession( by treaty)
Territory is transferred from 1 state to another by agreement
between them (sale, donation, barter/ exchange and testamentary
disposition)
4. Subjugation
Having been previously conquered or occupied in the courses of
war of the enemy, is formally annexed to it at the end of the war,
conquer alone inchoate right since it is the formal act of annexation that
complements acquisition.
5. Accretion
Based on Accessio Cedot Principoli accomplished through both
natural or artificial processes as by the gradual and imperceptible
deposit of soil on the coasts of the country through the action of the
water or by reclamation projects.
Archipelago Doctrine
The waters around, between and connecting the islands of the
archipelago, regardless of their breadth and dimensions , form part of the
nd
internal waters of the Philippines (2 sentence, Article 1, 1987 Constitution)
To determine the territorial owners
Archipelago= Pelgus which refer to the islands, a sea studded with
many island
o Kinds:
Coastal- situated close to a mainland and may be
considered a part thereof
Example: Lofien islands, Norway
Mid-ocean- situated in the ocean or such distance
arising from the coasts of frim land
Example: Philippines
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United Nations Convention on the Laws of the Sea (UNCLOS)
Uniform breadth of 10 miles for the territorial sea , a contiguous
zone of 18 miles from the outer limits of the territorial sea , and
economic zone or patrimonial sea extending 200 miles from the
low- water mark of the coastal
3 international Conferences have been called to formulate a new law of the
seas.
The conference have dealt with such controversial matters a the breadth of
the territorial seas, use of straits for international navigation, continental
shelf, concept of an exclusive economic zone, freedom of the high seas,
status of archipelagos and regime of islands.
st
o 1 conference: held in 1956-58 at Geneva Switzerland
nd
o 2 Conference: held in 1960 at Geneva Switzerland
rd
o 3 conference: held in 1970 by the UN which resulted in the
adoption of a new convention of the Law of the Sea and
became effective on: November 16, 1994, signed in Jamaica,
119 out of 150 conference-states
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.
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o Narrow passageways connecting two bodies of water . If the
distance between the 2 opposite coast is not more than six miles, they
are considered internal.
Canals
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 case of archipelagic state,
from the baseline.
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The Court therefore concluded that, with regard to private persons, civil
officials and goods in general there had existed a constant and uniform
practice allowing free passage between Daman and the enclaves, it was, in
view of all the circumstances of the case, satisfied that that practice had
been accepted as law by the Parties and had given rise to a right and a
correlative obligation.
As regards armed forces, armed police and arms and ammunition,
the position was different.
As regards arms and ammunition, the Treaty of 1878 and rules framed under the Indian
Arms Act of 1878 prohibited the importation of arms, ammunition or military stores
from Portuguese India and its export to Portuguese India without a special licence.
Subsequent practice showed that this provision applied to transit between
Daman and the enclaves.
The finding of the Court that the practice established between the Parties had
required for the passage of armed forces, armed police and arms and ammunition the
permission of the British or Indian authorities rendered it unnecessary for the Court to
determine whether or not, in the absence of the practice that actually prevailed, general
international custom or general principles of law recognized by civilized nations, which
had also been invoked by Portugal, could have been relied upon by Portugal in support
of its claim to a right of passage in respect of these categories. The Court was dealing
with a concrete case having special features: historically the case went back to a period
when, and related to a region in which, the relations between neighbouring States were
not regulated by precisely formulated rules but were governed largely by practice:
finding a practice clearly established between two States, which was accepted by the
Parties as governing the relations between them, the Court must attribute decisive
effect to that practice. The Court was, therefore, of the view that no right of passage in
favour of Portugal involving a correlative obligation on India had been established in
respect of armed forces, armed police and arms and ammunition.
The Court found that the events which had occurred in Dadra on 21-22 July
1954 and which had resulted in the overthrow of Portuguese authority in that enclave
had created tension in the surrounding Indian district, having regard to that tension, the
Court was of the view that India's refusal of passage was covered by its power of
regulation and control of the right of passage of Portugal.
Contiguous Zone
This refers to the waters beyond the territorial seas but not in excess
of 12 miles from the outer limits of the territorial sea over which the coastal
state exercises a protective jurisdiction to prevent the punish infringements of its
customs, fiscal immigration or sanitary regulations (1982 Convention on the Sea)
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It is that expanse of the sea extending 200 nautical miles from the
coast or baselines of the state over which it asserts exclusive jurisdiction and
ownership over all living and non-living resources found therein.
Continental Shelf
It is the seabed and 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
nautical miles from the baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin does not extend up to that
distance (Art. 76, par.1, UNCLOS)
High Seas
It is treated as RES COMMUNES or RE NULLIUS , and thus, are not
territory of a particular state . These are the waters which do not constitute the
internal waters, archipelagic waters, territorial sea and exclusive economic
zone of a state. They are beyond the jurisdiction and sovereign rights of States.
Res Nullius
Res Communes
Freedom of Navigation
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a. Joining appropriate points may be employed in drawing the
baseline from which the breadth of the territorial seas is
measured. (Art. 7 UNCLOS)
Baseline Law
1961 RA. 7046
5446- overlapping zone on Malaysia
9522- They ceded to own some islands which are not suitable for economic
zone
Tomas Cloma
o A Filipino adventurer and fishing magnate who discovered Kalayaan
Island
o 1956 Cloma declared separate government from the Philippines
o Cloma sold it to the Philippines during the Marcos Regime for P1
only
Treaty of Paris
o For $20M, Spain sold the Philippines to US on December 10,
1898
Treaty of Washington
o For $100K for the acquisition of the islands not included in
the Treaty of Paris Nov. 7, 1900
US- Britain
o January 2, 1930 for the Acquisition of the islands in the South
(Sulu, tawi-tawi)
Marcos Issued PD 1956 creating kalayaan as a province of Palawan
Treaty of Annexation
o Making the Hawaii part of the US
3. Government
Defined as the agency through which the will of the state is
formulated, realized and expressed.
In International law, it is the instrumentality that represents the state in
its dealings with other international persons. The state can assert rights, and is
held responsible, through its government.
De Jure- A government in accordance of the law
De Facto- A government not in accordance with the law
FORMS OF GOVERNMENT
A form of Government, or form of state of governance, refers to the set of
political institutions by which a government of a state is organized in
order to exert its powers over a house in the congress body politic .
Synonyms include regime type and system of government.
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It is best described by Abraham Lincoln as a form of government that is of
the people, by the people and for the people. It is a form of government, which
allows people to choose the representatives amongst themsel ves who are
given the rights to form the government . A democracy usually has a standard
Constitution that confers certain rights of freedom and expression (and many other
rights) to its citizens and expects certain duties from them and a uniform law to govern
the entire nation.
Direct or Pure Democracy
One in which the will of the State is formulated or expressed directly
and immediately through the people in a mass meeting or primary
assembly.
2. Aristocracy
One in which political power is exercised by a few privileged class
3. Monarchy
Monarchies are one of the oldest political system known, developing from tribal
structure with one person the absolute ruler
4. Presidential
One in which the state makes the executive constitutionally
independent of the legislature as regards his policies and acts
5. Parliamentary
One in which the state conf ers upon the legislature the power to
terminate the tenure of office of the real executive
6. Unitary
One in which the control of national and local is exercised by the
central or national government
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7. Federal
One in which the powers of government are divided between 2 sets of
organs, one for national affairs and the other for local affairs .
Despotism
It is the form of rule wherein a single leader rulers the entire
population and all his or her subjects are considered to be his or her
slaves. The Pharaoh of Egypt is an example of this sort of rule. In case of contemporary
contention, the term implies tyrannical rule.
Dictatorship
Implies rule by an individual who has compl ete power over the country .
Although there have been several definitions of dictatorship, broadly all the various
types and forms of dictatorship tend to exhibit totalitarian characteristics. When
the power of the government does not come from the people, is unlimited and tends to
expand their scope of powers to control every aspect of peoples life, the form can be
termed a dictatorship.
Plutocracy
Refers to form of government, which is run by the rich. A plutocracy is
a form of government, which is controlled by a group of extremely wealthy individuals.
In todays world many political analyst argue there are still some situations in which
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private corporations and wealthy individuals have a strong hold over the government,
which can be synonymous with plutocracy
Communist Government
It is a form of Government in which the state is governed by a one-party
system. This form of government works on the lines of Marxism- Leninism . Thus,
the state and the communist party claim to act in accordance to the wishes of
the working class or the peasantry . Although a communist government claims to
implement democratic dictatorship of the proletariat, it tends to incline towards the
abolition of the state and implementation of communism.
RECOGNITION
Definition
It is an act by which a state acknowledges the existence of another
state, government or belligerent community and indicates willingness to
deal with the entity as such under the rules of international law.
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KINDS OF RECOGNITION OF GOVERNMENT
De Jure Recognition De Facto Recognition
Relatively permanent Provisional(duration of armed
struggle)
Vests title to properties of Does NOT vest title to properties of
government abroad government abroad
Brings about full diplomatic relations Limited to certain juridical relations
4. Sovereignty
Supreme and uncontrollable power inherent in a State by which that
State is governed.
The government possesses full control over its own affairs within a
territorial geographic area or limit
ISSUE: Whether or not the GRP violated the Constitutional and statutory provisions on
public consultation and the right to information when they negotiated and initiated the
MOA-AD and Whether or not the MOA-AD brought by the GRP and MILF is
constitutional
REASONI NG: The GRP is required by this law to carry out public
consultations on both national and local level s to build consensus for
peace agenda and process and the mobilization and facilitation of
peopl es participation in the peace process.
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Sec. 7. The right of people on matters of public concern shall be recognized, access to
official records and to documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development
shall be afforded the citizen, subject to such limitations as may be provided by law.
Article II
Sec. 28. Subject to reasonable conditions prescribed by law , that state adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.
LGC (1991), require all national agencies and officers to conduct periodic
consultations. No project or program be implemented unless such consultations are
complied with and approval mus be obtained.
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or
2. A constitutional convention.
Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof
shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be
held not earlier than sixty days nor later than ninety days after the approval of such
amendment or revision.
MOA-AD states that all provisions thereof which cannot be reconciled with the present
constitution and laws shall come into force upon signing of a comprehensive compact
and upon effecting the necessary changes to the legal framework. The presidents
authority is limited to proposing constitutional amendments. She cannot guarantee to
any third party that the required amendments will eventually be put in place nor even
be submitted to a plebiscite. MOA-AD itself presents the need to amend therein.
KINDS OF SOVEREIGNTY:
1. Internal Supreme Authority of a state within its territory (Police
Power)
2. External- Does not have any force in foreign territory
Q: Is Sovereign absolute?
A: In domestic sphere- YES!
In International sphere- NO!
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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 or impliedly, as a member of the family of nations
By the doctrine of incorporation, the country is bound by generally accepted principles
of international law, which are considered to be automatically part of our own laws.
One of the oldest and most fundamental rules in international law is pacta
sunt servanda international agreements must be performed in good
faith.
"A treaty engagement is not a mere moral obligation but creates a legally binding
obligation on the parties . . . A state which has contracted valid international obligations
is bound to make in its legislations such modifications as may be necessary to ensure
the fulfillment of the obligations undertaken."
By their voluntary act, nations may surrender some aspects of their state power in
exchange for greater benefits granted by or derived from a convention or pact. After all,
states, like individuals, live with coequals, and in pursuit of mutually covenanted
objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights.
The sovereignty of a state therefore cannot in fact and in reality be
considered absolute. Certain restrictions enter into the picture: (1)
limitations imposed by the very nature of membership in the family of
nations and (2) limitations imposed by treaty stipulations. As aptly put by
John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient
nationalism is over.
Thus, when the Philippines joined the United Nations as one of its 51
charter members, it consented to restrict its sovereign rights under the
"concept of sovereignty as auto-limitation."
The Philippines has effectively agreed to limit the exercise of its sovereign powers of
taxation, eminent domain and police power. The underlying consideration in this partial
surrender of sovereignty is the reciprocal commitment of the other contracting states in
granting the same privilege and immunities to the Philippines, its officials and its
citizens.
The point is that, as shown by the foregoing treaties, a portion of sovereignty may
be waived without violating the Constitution, based on the rationale that
the Philippines "adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of . . .
cooperation and amity with all nations."
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Non- political law, by contrast, continues in operation, for the reason
also that they regulate private relations only, unless they are changed by the new
sovereign or are contrary to its institutions.
RECOGNITION OF STATES
Theories on Recognition of States
1. Declaratory School
a. Merely affirms an existing fact like the possession by the state of the
essential elements
b. Discretionary and political
2. Constitutive School
a. It is the act of recognition that constitutes the entity into an
international person
b. Compulsory and legal
c. May be compelled once the elements of a state are
established
BELLIGERANCY
The status of parties legally at war ( e.i. between nations or if in civil war,
government treats other as sovereign power)
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It means that the legal existence of a state continues notwithstanding
changes in the size of its population or territory or in the form or leadership of its
government as long as the four essential elements of statehood are
retained.
ACTS OF AGRESSION
I. Invasion or attack of a state
II. Bombardment of state
III. Blockade of ports or coasts
IV. Use of armed forces within a state in contravention to any agreement
V. Action of state in allowing its territory for an act of aggression against a third
state
VI. Sending of armed groups or mercenaries which carry an act of armed force
against another state
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b. Self-defensive action taken by the attacked state must be reported
immediately to the Security Council
c. Such action shall not in any way affect the right of the Security Council
to take at any time action as it deems necessary to maintain or restore
international peace and security
Abatement Doctrine
When conditions in the territory of a neighbouring state might result
in anarchy or disorder and the authorities of the state are unable to
restore order and prevents spinning over the territory of another the latter has
the duty to intervene even by armed force to restore order in the border
and to end the chaos.
Sovereignty
It is the totality of the powers, legal competence, and privileges
arising from customary international law, and not dependent on the consent of
another state.
Independence
Means freedom from control by other state or group of state and not
freedom from the restrictions that are binding on all states forming the
family of nations; carries with it by necessary implication the correlative duty if non-
intervention
Intervention
An act by which a state interferes with the domestic or foreign affairs
of another state through the employment of force or threat which may be
physical, political or economic.
Drago Doctrine
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Intervention not allowed for the purpose of making a state pay its
public debts
3. Right of Equality
Every state is entitled to the same protection and respect as are
available to other states under the rules of international law.
5. Right of Legation
It is the right of the state to maintain diplomatic relations with other
states. The right to send diplomatic representatives is known as the
active right of legation. The right to receive diplomatic representatives
is known as the passive right of legation.
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1. Representing sending state in receiving state
2. Protecting in receiving state interests of sending estate and its
nationals
3. Negotiating with government of receiving state
4. Promoting friendly relations between sending and receiving states and
developing their economic, cultural and scientific relations
5. Ascertaining by all receiving state and reporting thereon to
government of sending state
6. IN some cases, representing friendly governments at their request
Agreation
Process in appointment of diplomatic envoy where state resort to an
informal inquiry(enquiry) as to the acceptability of a particular envoy, to which the
receiving state responds with an informal conformity (agreement)
KINDS OF CONSULS
CONSULES MISSI CONSULES ELECTI
Professional or career consul s who Perform consular functions only in
are required to devote their full time addition to their regular callings
to discharge their duties
Nationals of sending state May or not be nationals of the
sending state
Ranks
1. Consul- general- heads several consular districts, or one exceptionally large
consular districts
2. Consul- takes charge of a small district or town port
3. Vice- consul- assists the consul
4. Consular agent- usually entrusted
ISSUES: Whether or not the petitioner is covered by immunity under the agreement and
that no preliminary investigation was held before the criminal cases were filed in court.
Extraterritoriality
Applies only to PERSONS and is based on treaty or convention credited
because of rise of nationalism and sovereign equality of states.
Exterritoriality
Exception of the PERSONS AND PROPERT Y from local jurisdiction on
basis of international customs.
Treaty
An international agreement concluded between states in written
form and governed by international law whether embodied in a single
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instrument or in two or more related instruments . (art. 2 Vienna Convention on
the Law of Treaties, 1969)
Taiwan cannot enter into a treaty
The first cited provision applies to any form of treaties and international
agreements in general with a wide variety of subject matter. All treaties and
international agreements entered into by the Philippines, regardless of subject matter,
coverage or particular designation requires the concurrence of the Senate to be valid
and effective.
In contrast, the second cited provision applies to treaties which involve presence
of foreign military bases, troops and facilities in the Philippines. Both constitutional
provisions share some common ground. The fact that the President referred the VFA to
the Senate under Sec. 21 Art. VII, and that Senate extended its concurrence under the
same provision is immaterial.
34
Q: VFA-concurred in by our senate but not by the US Senate
A: VFA still binding on its/ is still a binding treaty because it is not our
business to dwell into the domestic law of the other contracting party; we
are satisfied with the Senators pronouncement that the US will recognize
it.
Attentant Clause
Assassination of head of the State or any member of his family is not
regarded as political offence for purpose of extradition . Also applies to
genocide
2. Signature
Primarily intended as a means of authenticating the instrument and symbolizing
the good faith of the contracting parties.
Practice Aternat
Arrangement under which each negotiator is allowed to sign first on the
copy of the treaty which he will bring home to his own country , the purpose
being to preserve the formal appearance of equality among the
contracting states and to avoid delicate questions of precedence among
signatories.
3. Ratification
Act by which the state formally accepts the provisions of the treaty concluded by its
representatives.
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.
Jus Cogens
35
A jus cogens or peremptory is a norm which States cannot derogate
or deviate from in their agreements . It is a mandatory norm and stands on a
higher category than a jus dispotivum norm which States can set aside or modify by
agreement
A fiduciary Theory of Jus Cogens Evan J. Criddle and Evan Fox Decent
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.
36
Iceland claims that its agreement with the UK not to extend its fishereies
jurisdiction was no longer binding due to fundamental change of circumstances
Held:
For this to be a ground for invoking the termination of a treaty, it should have
resulted in a radical transformation of the extent of the obligations still to be performed.
The change must have increased the burden of the obligations to be
executed to the extent of rendering the performance something essentially
different from that originally undertaken.
This is not the case here, Iceland cannot validly invoke Rebus Sic Stantibus in
claiming the termination of the treaty.
Protocol de Cloture
An instrument which records the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the contents of treaties, conventions,
37
recommendations and other acts agreed upon and signed by the plenipotentiaries
attending the conference. It is not the treaty and does not require the
concurrence of the senate. (Tanada vs. Angara)
Nationality
Membership on a political community with all its concomitant rights
and obligations. It is the tie that binds the individual to his state from
which he can claim protection and whose law he is obliged to obey
Citizenship
Membership in a political community which is personal and more or
less permanent in character
Statelessness
Condition or statues of an individual who is born without any nationality or
who loses his nationality without retaining or acquiring another
De Jure Statelessness
It is where the exists no recognized state in respect of which the subject has
a legally meritorious basis to claim nationality
De Facto Statelessness
38
It is where the subject may have a legally meritorious claim but is
precluded from asserting it because of practical considerations such as cost,
circumstances of civil disorder, or the fear of persecution
ALIENS
Definition
It is a person in a country who is not a citizen of the country
Treatment of Aliens
Flowing from its right to existence and as an attribute of sovereignty, no state
is under obligation to admit aliens . The state can determine in what cases and
under what conditions it may admit aliens.
1. The state has the Right to EXPEL aliens from its territory through:
a. Deportation
Expulsion of alien considered undesirable by the local
state, usually not necessarily to his own state
b. Reconduction
Forcible conveying of aliens back to their home state
without any formalities
Calvo Clause
It is a stipulation by virtue of which an alien waives or restricts his
right to appeal to its own state in connection with any claim arising from a
contract with foreign state and limits himself to the remedies available under the
law of the state.
Drago Doctrine
In 1902, Great Britiain, Italy and Germany established a bloackade against
Venezuela in order to enforce certain contractual and other claims against it, leading
Foreign Minister Jose Maria Drago of Argentina to formulate the doctrine that a
public debt cannot give rise to the right of armed intervention.
39
This principle was later adopted in the Second Hague Conference, but subject to
the qualitfication that the debtor state should not refuse or neglect to reply
to an offer of arbitration or after accepting the offer, prevent any
compromise from being upon, or after the arbitration, fail to submit to the
award. This qualification is known as the PORT ER RESOLUTION
Refugees
A person who, owing to a well-founded fear of being persecuted for
treasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality , and is
unable or wing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his former,
habitual residence, is unable or owing to such fear, is unwilling to return to
it. (Convention Relating to the Status of Refugees, Art.1 a(2) ).
Non- refoulment
Prohibits 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. (Refugee Convention of 1951)
Right of Asylum
Refuge in another state. Every foreign state can be at least a provisional asylum
for any individual, who being persecuted in his home State, goes to another state, in the
absence of any international treaty stipulating the contrary, no state is, by international
laws, obliged to refuse admission into its territory to such a fugitive or in case he has
been admitted, to expel him or deliver him up to the prosecuting state.
The right of asylum is not a right possessed by an alien to demand that a state
protect him and grant him asylum. At present, it is just a PRIVILEGE granted by a
state to allow an alien escaping from persecution of his country for
political reasons to remain and to grant him asylum.
Diplomatic Asylum
Refugee in another state for political offense, danger to life or no
assurance of due process
Extradition
The removal of an accused from the Philippines with the object of
placing him at the disposal of foreign authorities to enable the requesting
state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed
40
on him under the penal or criminal law of the requesting state or
government (P.D. 1069, Sec 2 (a)).
41
HELD:
YES, Applying the constitutional principle, the Court has held that
the prohibition applies only to criminal legislation which affects the
substantial rights of the accused. This being so, there is no absolutely no merit in
petitioner's contention that the ruling of the lower court sustaining the Treaty's
retroactive application with respect to offenses committed prior to the Treaty's coming
into force and effect, violates the Constitutional prohibition against ex post facto laws.
As the Court of Appeals correctly concluded, the Treaty is neither a piece of
criminal legislation nor a criminal procedural statute. It merely provides
for the extradition of persons wanted for prosecution of an offense or a
crime which offense or crime was already committed or consummated at
the time the treaty was ratified.
General Rule:
Prospective extraditees not entitled to notice and hearing before
warrants for their arrest can be issued to the right to bail and provisional
liberty while the extradition proceedings are pending
Exception :
1. Once bail is granted, he will not be flight risk or danger to community
2. There exist special, humanitarian, and compelling circumstances
Principles on Extradition:
1. No State is obliged to to extradite unless there is a treaty
42
2. Differences in legal system can be an obstacle to interpretation of what the
crime is
3. Religious and political offenses are not extraditable
ISSUE Whether or not the trial court committed grave abuse of discretion amounting to
lack or excess of jurisdiction in allowing private respondent to bail?
HELD
No, the trial court did not commit grave abuse of discretion amounting to lack
or excess of jurisdiction in allowing private respondent to bail.
Accordingly, although the time-honored principle of pacta sunt
servanda demands that the Philippines honor its obligations under the
Extradition Treaty it entered into with the Hong Kong Special
Administrative Region it does not necessarily mean that in keeping with its
treaty obligations, the Philippines should diminish a potential extraditee s
rights to life, liberty, and due process guaranteed by the Constitution.
More so, where these rights are guaranteed, not only by our Constitution, but also by
international conventions, particularly the Universal Declaration of Human Rights, to
which the Philippines is a party.
We should not, therefore, deprive an extraditee of his right to apply for bail,
provided that a certain standard for the grant is satisfactorily met. In his Separate
Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed clear and convincing evidence
should be used in granting bail in extradition cases. According to him, this standard
43
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. In this case, there is no showing that private respondent presented
evidence to show that he is not a flight risk. Consequently, this case should be
remanded to the trial court to determine whether private respondent may be granted
bail on the basis of clear and convincing evidence.
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to
determine whether private respondent is entitled to bail on the basis of clear and
convincing evidence. If not, the trial court should order the cancellation of his bail
bond and his immediate detention; and thereafter, conduct the extradition proceedings
with dispatch.
44
PACIFIC or AMICABLE METHODS OF SETTLING DISPUTES
1. Negotiation
st
o Generally the 1 step taken in the settlement of international disputes, it
is nothing more than the discussion by the parties themselves of their
respective claims and counterclaims with a view to their just
and orderly adjustment.
o Process by which State settle their differences through an exchange of
views between diplomatic agencies.
2. Enquiry
o Act by which the facts material to the dispute are ascertained, established
and clarified by an impartial fact finding body towards the adjustment or
resolution of a dispute
3. Tender of Good Offices
rd
o Method by which a 3 party attempts to bring the disputing states
together in order that they may be able to discuss the issues in
contention
o This is usually employed when the protagonists are no longer on
speaking terms, that is, when they have served diplomatic relations or
have actually commenced hostilities.
4. Mediation
rd
o A 3 party does not merely provide the opportunity for the antagonists to
negotiate but also actively participates in their discussions in order to
reconcile their conflicting claims.
o Offers a solution; good offices merely bring parties together.
5. Conciliation
rd
o Active participation of a 3 party, whose services are solicited by the
disputants, in the effort to settle the conflict; but the conciliators
recommendations are not binding. (Shuttle diplomacy- back and forth to
the party)
6. Arbitration
rd
o The solution of a dispute by an impartial 3 party usually a tribunal
created by the parties themselves under a charter known as a
compromise
7. Judicial Settlement
o Similar to arbitration in the nature of the proceedings and in the binding
character of the award
o Judicial body is pre-existing
o Jurisdiction in judicial settlement is usually compulsory, and the law
applied by the judicial tribunal is independent of the will of the parties
o Judicial settlement of the international disputes is now lodged in the ICJ
(International Court of Justice)
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8. Resort to international (regional) Organizations
o The parties may, of their own volition, or at the instance of the
organization itself, assume the obligation of the settling the dispute.
HOSTILE METHODS
Where the pacific methods of settlement have failed, states sometimes find it
necessary to resort to hostile methods, which may be severance of diplomatic relations,
retorsion, reprisal or intervention
1. Severance of Diplomatic Relations
2. Retorsion
a. Retaliation where acts complained of do not constitute legal ground of
offense but are rather in the nature of unfriendly acts done in pursuance
of a legitimate state interest but indirectly hurtful to other states.
b. Unfriendly, but lawful, coercive acts done in retaliation for unlawful
treatment and acts of discrimination of another state
i.e. the levy of high discriminatory tariffs on goods coming from the
other state
3. Reprisal
a. Unlawful acts taken by one state in retaliation for reciprocal unlawful acts
of another state.
b. Purpose: to bring the offending state to terms
c. These acts are essentially forcible and are taken only by strong states with
sufficient power to back up their demands.
4. Non- Intercourse
a. Suspension of all intercourse with the offending state, particularly in
matters of trade and commerce
5. Boycott
46
a. Concerted suspension of commercial relations with the offending state,
with particular reference to a refusal to purchase goods.
WAR
May exist even without the use of force, as when one state formally refuses to be
governed by the kinds of peace in its relations with another state even if actual hostiles
have not taken place between them.
COMMENCEMENT OF WAR:
1. With the declaration of war (Hague Convention of 1907)
2. With the rejection of an ultimatum (Hague Convention)
3. With the commission of an act of force regarded by one of the belligerent as an
act of war.
47
o Defeat of one of the belligerents followed by a dictated treaty of peace, or
annexation of conquered territory
Jus Postliminy
Right of Postliminum is the right by which persons or things taken by the enemy
are restored to the former state on coming actually into the power of the nation to
which they belong
Postliminum is the revival or reversion to the old laws and sovereignty of territory
which has been under belligerent occupant is lost over territory affected.
Combatants
Those who engage directly or indirectly in the hostilities
NEUTRALITY
Neutrality
It is the condition of a state that does not take part, directly or indirectly, in a war
between other states.
Neutralization
It is the result of a treaty wherein the conditions of the status are agreed upon by
the neutralized state and the other signatories.
NEUTRALITY NEUTRALIZATION
Dependent, on attitude of neutral state, Results of treaty wherein duration and other
which is free to join either of belligerents conditions are agreed upon by neutralized
any time it sees fit. state and other states.
Governed by laws of nations Governed by neutralization by agreement
Obtains only during war Intended to operate in times of peace and
war
Only states may become neutral May apply to portions of the territory of the
state
e.g. islands, rivers and canals
49
a. To abstain from taking part in the hostilities and from giving assistance to
either belligerent
2. Prevention
a. To prevent its territory from being used by the belligerents in the conduct
of hostilities;
3. Acquiescence
a. To acquiescence in certain restrictions and limitations that the
belligerents may find necessary to impose, especially in connection with
international commerce
Blockade
A blockade is an effort to cut off food, supplies, war material or communications
from a particular area by force, either in part or totally.
Close patrol of the hostile ports, in order to prevent naval forces from putting to
sea, is also referred to as a blockade. When a coastal cities or fortresses were besieged
from the landward side, the besiegers would often blockade the seaward side as well.
Most recently, blockades have sometimes included cutting off electronic
communications by jamming radio signals and severing undersea cables.
Prize
Prize is a term used in admiralty law to refer to equipment, vehicles, vessels,
and cargo captured during armed conflict. The most common use of prize in this
sense is the capture of an enemy ship and its cargo as a prize of war.
In the past, it was common that the capturing force would be allotted a share of
the worth of the captured prize. Nations often granted letters of marque which
would entitle private parties to capture enemy property, usually ships.
50
Once the ship was secured on friendly territory, it would be made the subject of
a prize case, an in rem proceeding in which the court determined the status of
the condemned property and the manner in which it was to be disposed of.
Prize Court
A prize court is a court (or even a single individual, such as an ambassador or
consul) authorized to consider whether or not a ship has been lawfully captured
or seized in time of war or under the terms of the seizing ship's letters of marque
and reprisal.
A prize court may order the sale or destruction of the seized ship, and the
distribution of any proceeds to the captain and crew of the seizing ship. A prize
court may also order the return of a seized ship to its owners if the seizure was
unlawful, such as if seized from a country which had proclaimed its neutrality.
CONTRABAND
Contraband is enemy goods carried by vessels of neutral nations during wartime
that may be confiscated by a belligerent power and thus prohibited from delivery to the
enemy.
Traditionally, contraband is classified into two categories, absolute contraband
and conditional contraband. The former
Absolute contraband
Category includes arms, munitions, and various materials, such as
chemicals and certain types of machinery that may be used directly to
wage war or be converted into instruments of war.
Conditional contraband
Formerly known as occasional contraband, consists of such materials as
provisions and livestock feed. Cargo of this kind, while presumably
innocent in character, is subject to seizure if, in the opinion of the
belligerent nation that seizes them, the supplies are destined for the
armed forces of the enemy rather than for civilian use and consumption.
In former agreements among nations, certain other commodities,
including soap, paper, clocks, agricultural machinery and jewelry, have
been classified as non-contraband, although these distinctions have
proved meaningless in practice.
51
Doctrine of Ultimate Consumption
Goods intended for civilian use which may ultimately find their way and be
consumed by belligerent forces, may be seized on the way.
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
This is the 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 the hostilities.
e.g. carrying contraband, attempting to breach a bloackade, or engage in
unneutral service, in favour of the other belligerent
In time of war, there are relations between the belligerents that are not strictly hostile
1. Flag of Truce
a. It is a white flag carried by an individual authorized by one belligerent to
enter into communications with the other
2. Parlementaric
a. Bearer of flag
b. Entitled of inviolability as long as he does no take advantage of his
privileged position to commit an act of treachery
3. Cartels
a. Agreement to regulate intercourse during war on such matters as postal
and telegraphic communication, the reception of flags of truce and the
exchange of prisoners
b. Cartel Ship- Vessel sailing under a safe-conduct for the purpose of
carrying exchanged prisoner of war
4. Passport
a. Written permission given by the belligerent government on its authorized
agent to the subjects of the enemy state to travel generally in belligerent
territory
5. Safe-Conduct
a. A pass given to an enemy subject or an enemy vessel allowing passage
between defined points
i. Given by the belligerent government or the commander of the are
within which it is effective
6. Safe guard
52
a. Protection granted by a command officer either to enemy persons or
property within his command extreme measure to fulfil their result
7. License to trade
a. Permission given by the competent authority to individuals to carry on
AXIS POWER
o Also known as the axis alliance, axis nations, axis countires, axis
o Began in 1936 with treaties of friendship between Germany and Italy and
between Germany and Japan
o Tribunal Pact (Germany, Italy and Japan)
ALLIES
o Opposed the axis power during WW2
o They became involved in WW2 either because they had already been invaded,
were directly threatened with invasion by the axis or because they were
concerned that the axis powers to control the world
53
o A permanent tribunal to prosecute individuals for genocide, crimes against
humanity, war crimes, and the crime of aggression (although it cannot, until at
least 2017, exercise jurisdiction over the crime of aggression).
o founding treaty- the Rome Statute of the International Criminal Court
on July 17, 1998
o Entered into force on July 1, 2002
o As of July 2012, 121 states are states parties to the Statute of the Court
o The law of treaties obliges these states to refrain from acts which would defeat
the object and purpose of the treaty until they declare they do not intend to
become a party to the treaty.
o USA, CHINA and RUSSIA not members
o UN can refer a case to ICC
o ICC in Hague, Netherlands
o Language: English and French
General Principles:
1. Nullum crimen sine lege (Ex post Facto law)
2. Nullum poena sine lege (void for vagueness)
3. Double Jeopardy
4. Non-retroactivity
5. Principle of Superior Responsibilitya superior is held liable for failure to prevent
subordinates from committing unlawful acts, in view of his command and control over
them and liable as well for their crimes
6. Mens reamaterial elements of a crime must be committed with intent and
knowledge
No trial in absentia
No reservations
Penalties: Imprisonmentmax of 30 years; no death penalty
Principle of Complementaritythe ICC shall be complementary to national
criminal jurisdictions of states. It gives primacy over the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes.
54
The Statute was opened for signature by all States in Rome on July 17, 1988 and
had remained open for signature until December 31, 2000 at the UN Headquarters in
New York. The Philippines signed the Statute on December 28, 2000 through Charge
d Affairs Enrique A. Manalo of the Philippine Mission to the UN. Its provisions, however,
require that it be subject to ratification, acceptance or approval of the signatory states.
(Article 25, Rome Statute)
Jurisdiction
1. It will not act as if a case is investigated or prosecuted by a national juridical
system unless the national proceedings are not genuine i.e. if formal
proceedings were undertaken surely to shield a person from criminal
responsibility
2. Only tries those accused of greatest crimes
a. It observes the highest standards of fairness and due process
3. Complementary to national courts which means that the court will only act when
countries themselves are unable or unwilling to investigate or prosecute.
4 ORGANS
Assembly of parties
o Composed of all members
o 121 member, Philippines a member as of 2011
o Established a TRUST FUND for the benefit of victims of crimes within the
jurisdiction of the court and the families of these victims
1. Presidency
a. 1 of the Judges
b. Song sang Hyun
o Responsible for the overall administration of the courts
o Exception:
Office of the prosecutor
Specific function assigned to presidency in accordance with the
statute
o Composed of 3 judges of the court
Elected to the Presidenct by their fellow judges
Term of office: 3 years
2. Judicial Division
a. 18 judges
b. 9 years term of office, no re-election
c. 3 Divisions
d. Qualifications
Supreme Court Qualification
Advance degree in M.B.A.
55
Organized into the following:
Pre-trial Division
Trial Division
Appeal Division
Judges of each division sit in chambers which are responsible for conduct of the
proceedings of the court at different stages
Assignment of judges to division is made on the basis of the nature of the
funtions each divisions performs and the qualifications and experience of the
judge
Done in a manner ensuring that a Division benefits from an appropriate
combination of experience in criminal law and procedure and international law.
4. Registry
a. Responsible for the non-judicial aspects of the administration and serving
of the court
Headed by: Registrar
Principal administrative officer of the court
Exercises his function under the authority of the pres of the court
Elected by the judges
Term: 5 years
Current: Silvana Arbia
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A war was originally accepted as legitimate means of compulsion, provided,
according to some writers, that it was a reaction to an international delict
Outlawry of War
All members are called upon to abstain from the use of force in the solution of
international differences and to sse to it that even non-members comply with its
declared principles so far as may be necessary for the maintenance of
international peace and security
2. Principle of Humanity
a. Prohibits the use of any measure that is not absolutely necessary for the
purposes of the war
i. i.e. poisoning of wells and weapons, expanding bullets and
asphyxiating gases
ii. Enemy vessel sunk- either belligerent must see to the safety of the
persons on board
iii. Wounded and sick- must be humanely treated without distinction
of nationality by the belligerent in whose power they are
3. Principle of Chivalry
a. Basis of such rules that require the belligerents to give proper warning
before launching a bombardment
Republic Act No. 9851, the new Philippine Act on Crimes Against
International Hu manitarian Law, Genocide, and Other Crimes Against
Humanity
The most important features of R.A. No. 9851 might be outlined as follows:
Defining and penalizing war crimes, genocide, and other crimes against
humanity.
57
Applicability to all individual perpetrators, whether state agents or non-state
actors (unlike the Anti-Torture Act which is limited to state-agent perpetrators).
Applying certain international criminal law principles of irrelevance of official
capacity (for immunities), responsibility of superiors (i.e. command
responsibility), unlawful superior orders, and non-prescription, among others.
Instituting a form of universal jurisdiction, albeit qualified.
Providing for international standards for protection of victims and witnesses, as
well as reparations to the former.
Express applicability of international law, including of specific international
treaties.
Providing for the designation of special courts, prosecutors and investigators,
and their effective training in human rights, IHL and international criminal law.
No requirement of implementing rules and regulations (unlike the Anti-Torture
Act)
Basically, war crimes are serious violations of the protection that should be
accorded to civilians or non-combatants during armed conflict, as well as serious
violations of the established limitations on the methods and means of warfare, for the
benefit also of the combatants.
58
(a) The superior either knew or, owing to the circumstances at the time, should have
known that the subordinates were committing or about to commit such crimes; and
(b) The superior failed to take all necessary and reasonable measures within his/her
power to prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.
59