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RIGHT OF INDEPENDENCE

 Right of national self-government, the freedom of a state from control by another state, or the right of a state to
direct both its internal and external affairs without dictation or interference from others

Is the Right of Independence Absolute?

 No, like the liberty of the individual who must submit to limitations for the benefit of the community, the
independence of a state must be restricted by the requirements of the international society.

Correlative duty of the Right of Independence

 Every sate is under the correlative obligation of non intervention in view of its own independence. Even as it
expects its independence to be respected by other states, so too must be prepared to respect their own
independence.

Drago Doctrine

 A public debt cannot give rise to the right of intervention

Porter Resolution

 A public debt cannot give rise to the right of intervention subject to the qualification 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 agreed, or, after the arbitration, fail to submit to the award.

RIGHT OF EQUALITY

 It means that every state is entitled to the same protection and respect as are available to other states under
the rules of international law. It does not mean parity in the number of rights, as it is possible for one state to
have more rights than another.

According to Vattel:

 “A dwarf is as much a man as a giant is; a small Republic is no less a sovereign State than the most powerful
Kingdom”.

RIGHT OF TERRITORY

 The territory of a state usually consists of:  B. Maritime and fluvial domain
 A. Terrestrial domain  C. Areal Domain

Terrestrial Domain: The land mass on which the people live.

Maritime and Fluvial Domain

 Consists of the bodies of water within the land mass and the waters adjacent to the coasts of a state to a
specified limit. Included in the maritime and fluvial domain are land-locked lakes, rivers, man made canals, the
waters in certain gulf, bays and straits, and the territorial sea.

Territorial Sea: Is a belt of sea outwards from the baseline and up to 12 nautical miles beyond.

Baseline

 Is the low-water line along the coast as marked on large scale charts officially recognized by the coastal State.

Normal baseline

 Is drawn following the low water line along the coast as marked on large scale charts officially recognized by
the coastal State. The line follows the curvatures of the coast and therefore would normally not consists of
straight lines

Straight baselines

 Straight lines are drawn connecting selected points on the coast without appreciable departure from the
general shape of the coast.
Sovereignty over territorial sea

 The sovereignty over its territorial sea and the airspace above it as well as the seabed under is the same as its
land territory subject however to the right of innocent passage.

 Right of innocent passage applies to ships and aircrafts. Submarine, moreover, must surface.

Passage of a foreign ship is not innocent if it engages in:

 Any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal
State, or in any manner in violation of the principles of international law embodied in the UN Charter
 Any exercise or practice with weapons of any kind;
 Any act aimed at collecting information to the prejudice of the defense or security of the coastal state.
 Any act of propaganda aimed at affecting the defense or security of the coastal State.
 The launching, landing or taking on board any aircraft
 The launching, landing or taking on board of any military device;
 The loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or
sanitary laws and regulations of the Coastal Sate;
 Any act of willful and serious pollution contrary to this convention;
 Any fishing activities
 The carrying out of research or survey activities
 Any act aimed at interfering with any systems of communication or any other facilities or installations of the
coastal state
 Any other activity not having a direct bearing on passage.

Internal waters

 All waters landwards from the baseline of the territory. Sovereignty over these waters is the same in extent as
sovereignty over land and it is not subject to innocent passage.

 Note: Saudi Arabia v. Aramco and Nicaragua v. US

Archipelagic waters: Same as internal waters BUT with right of innocent passage.

Bays: Considered as internal waters

Contiguous zone

 Is an area of water not exceeding 24 nautical miles from the baseline.

 The coastal state exercises authority over that area to the extent necessary to prevent infringement of its
customs, fiscal, immigration or sanitation authority over its territorial waters or territory and to punish such
infringement.

EEZ zone or “patrimonial sea”

 An area extending not more than 200 nautical miles.

 The provisions on the EEZ are both a grant of rights to and an imposition of obligation on coastal states
relative to the exploitation, management and preservation of the sources found within the zone.

Primary obligations in EEZ

 First, must ensure trough proper conservation and management measures that the living resources of the EEZ
are not subjected to over-exploitation. This includes the duty to maintain and restore population of harvested
fisheries at levels which produce a “maximum sustainable yield”.

 Second, they must promote the objective of “optimum utilization” of the living resources. They therefore should
determine the allowable catch of living resources. If the coastal state does not have the capacity to harvest the
allowable catch, it must grant access to other states.

Continental (archipelagic) shelf

 Refers to:

(a) the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea,
to a depth of two hundred meters or, beyond that limit, to where the depth allows exploitation

(b) the seabed and subsoil of areas adjacent to islands


Rights in continental shelf

 The coastal state has the right to explore and exploit its natural resources, to erect installations with a radius of
500 meters. The right does not affect the right of navigation of others. Moreover, the right does not extend to
non-resource materials in the shelf area such as wrecked ship and their cargoes.

Deep Seabed and Ocean floor

 Beyond any national jurisdiction.


 Common heritage of mankind.

Islands

 ART. 131 UNCLOS states that:

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. The territorial sea, the contiguous zone and the continental shelf of an island are determined in accordance
with the provisions of the Convention applicable to other land territory.

 Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic
or continental shelf.

Artificial Islands

 Artificial islands or Installations are not “islands” in the sense of Art. 121. However coastal states may establish
safety zones around artificial islands and prescribe safety measures around them.

High Seas

 All parts of the sea that are not included in the territorial sea or in the internal waters of a State.

SIX(6) FREEDOMS IN THE HIGH SEAS

1. Freedom of navigation 4. Freedom to lay submarine cable


2. Freedom of overflight 5. Freedom to construct artificial islands and structures
3. Freedom of fishing 6. Freedom of scientific research
Excluded are territorial, contiguous and EEZ (Art. 86 UNCLOS)

Hot Pursuit

 Art 111 allows hot pursuit of a foreign vessel where there is good reason to believe that the ship has violated
laws or regulations of a coastal state. The pursuit must commence when the when the foreign vessel is within
the internal waters, the archipelagic waters, the territorial waters or the contiguous zone.

 Hot pursuit must stop as soon as the ship pursued enters the territorial waters of its own state or a third state.

Arrival under stress

 Arrival under stress or involuntary entrance due to lack of provisions, unseaworthiness of the vessel, inclement
weather, or other force majeure.

 Arrival under stress or involuntary entrance due to lack of provisions, unseaworthiness of the vessel, inclement
weather, or other force majeure.

RIGHT OF JURISDICTION

 Jurisdiction is the authority exercised by a state over persons within or outside its territory, subject to certain
exceptions.

Kinds of Jurisdiction

 Personal – the power exercisable by a state over its nationals. It is based on the theory that is a national is
entitled to the protection of his state wherever he may be and is therefore bound to it by a duty of obedience
and allegiance. This duty follows him even when he is outside the territory of his state.

 Territorial jurisdiction is the authority of a state, based on its sovereignty and the right of domain, which it
exercises over persons and property within its boundaries.

Exception to territorial jurisdiction

 Heads of states, diplomatic representatives, consuls to a certain degree


 Foreign state properties
 Acts of state (read: Underhill v. Hernandez)
 Foreign merchant vessels exercising the right of innocent passage or arrival under stress
 Passing armies or stationed in the territory with its permission
 Such other persons or property, jurisdictions of which are waived in treaty.

Jurisdiction over foreign public vessel

 We follow the English Rule….

Generally recognized principles of criminal jurisdiction

 Territorial principle- State offense was committed


 Nationality principle- State of the offender
 Protective principle- State where national interest is injured
 Universality principle- state which has custody
 Passive personality principle- state of the offended party

Territoriality Principle

 A state has absolute, but nor necessarily exclusive, power to prescribe, adjudicate and enforce rules of
conduct that occurs within its territory.

Effects Doctrine

 A state has jurisdiction over acts occurring outside its territory but having effects within it.

1. Subjective territorial principle – a state has jurisdiction to prosecute and punish a crime commenced within the
state but completed or consummated abroad.

2. Objective territorial principle – state has jurisdiction to prosecute and punish crime commenced without the
state but consummated within its territory.

Nationality Principle

 Every state has jurisdiction over its nationals even when those nationals are outside the state.

Principle of Effective Nationality

 Within a third state, a person having more than one nationality shall be treated as if he had only one. Under the
principle, the third state shall recognize conclusively in its territory either the nationality of the country in which
he is habitually and principally present or the nationality of the country with which he appears to be in fact most
closely connected

Protective Principle

 State may exercise jurisdiction over conduct outside its territory that threatens its security, as long as that
conduct is generally recognized as criminal by states in the international community. ( See Lord Haw Haw
Case)

 Limitations: US vs. Yunis (universality and passive principles are available)

Universality Principle

 Recognizes that certain activities, universally dangerous to states and their subjects, require authority in all
community members to punish such acts wherever they may occur, even absent a link between the state and
the parties or the acts in question.

 See Art. 6 (Genocide), 7 (Crimes against humanity),and 8 (war Crimes) of the Statute of the New International
Criminal Court.

Passive Personality Principle

 A state may apply law – particularly criminal law- to an act committed outside its territory by a person not its
national where the victim of the act was its national.

Conflicts of Jurisdiction

3 modes of settling conflict of jurisdiction.

1. The Balancing test


2. International comity
3. Forum non conveniens

Balancing Test

1. Was there an actual or intended effect on American foreign commerce.

2. Is the effect sufficiently large to present a cognizable injury to the plaintiffs and, therefore, a civil violation of
the antitrust laws

3. Are the interest of, and link to, the United States including effects on American foreign commerce sufficiently
strong, vis-à-vis those of other nations, to justify an assertion of extraordinary authority. ( Timberlane Lumber
Co. v. bank of America)

International Comity

 Even when state has basis for exercising jurisdiction, it will refrain from doing so if its exercise will be
unreasonable. ( Hartford Fire Insurance Co. v. California)

Forum non conveniens

 Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or
forum, is much better suited to hear the case. (Aircraft Co. v. Reyno)

Exterritoriality vs Extraterritoriality

Exterritoriality – refers to the exemption of persons and things from the local jurisdiction on the basis of
international custom

Extraterritoriality – applies to persons and is based on a treaty or conventions

Lutos Case

 Principle of “objective territorial jurisdiction” ----- affected state has jurisdiction.


 Concurrent Jurisdiction – Convention on the High Seas

Immunity from prosecution

 is a doctrine of international law that allows an accused to avoid prosecution for criminal offences. Immunities
are of two types. The first is functional immunity, or immunity ratione materiae. This is an immunity granted to
people who perform certain functions of state. The second is personal immunity, or immunity ratione
personae. This is an immunity granted to certain officials because of the office they hold, rather than in relation
to the act they have committed

Functional immunity

 It arises from customary international law and treaty law and confers immunities on those performing acts of
state (usually a foreign official). Any person who in performing an act of state commits a criminal offence is
immune from prosecution. This is so even after the person ceases to perform acts of state. Thus it is a type of
immunity limited in the acts to which it attaches (acts of state) but will only end if the state itself ceases to exist.
This type of immunity is based on respect for sovereign equality and state dignity

 The offices usually recognized as attracting this immunity are Head of State or Head of Government, senior
cabinet members, Foreign Minister, and Defence Minister

Applicable cases

 Mugabe and Fidel Castro case

 Note however the following cases:

1. Charles Taylor case


2. Karadzic, Milosevic, and Furundzija cases

Personal immunity

 This type of immunity arises from customary international law and confers immunity on people holding a
particular office from the civil, criminal, and administrative jurisdiction. This immunity is extended to diplomatic
agents and their families while posted abroad (and is also valid for their transfer to or from that post, and is only
valid for the country to which they are posted). Under personal immunity, private residence, papers,
correspondence, and property of an official enjoying personal immunities are inviolable.
RIGHT OF LEGATION

 It is the right of a 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.

Classification of Diplomatic Representatives

Convention on Diplomatic Representatives: or nuncios

1. Ambassadors
2.Envoys, ministers
3.Charge’s d’affaires
Agreation

 Means by which inquiries are addressed to the receiving state regarding a proposed diplomatic representatives
of the sending state. It is only when the receiving state manifests its agreement or consent that diplomatic
representative is appointed and formally accredited.

Ambassadors and Consuls

 An Ambassador is the foreign diplomatic representative of a nation who is authorized to handle


political negotiations between his or her country and the country where the ambassador has been assigned.

 A consul is the commercial agent of a nation, who is empowered only to engage in


business transactions, and not political matters in the country where he or she is stationed.

Powers and Duties

The powers of an ambassador are specified in his or her credentials, or documents of introduction,
which the ambassador submits to the foreign government. In addition to responsibility for political
negotiations, an ambassador may initiate legal proceedings on behalf of the state he is
representing and defend suits instituted against it.

 In general, a consul is authorized to safe guard the legal rights and property interests of the citizens
of his or her country.

 To appear in courts to ascertain that the laws of the nation where he or she
is assigned are administered impartially to all of the ambassador's compatriots

Kinds of Consuls

 Consules missi – professional or career consuls who are nationals of the sending state and are required to
devote their full time to the discharge of their duties.

 Consules electi – may or may not be nationals of the sending state and perform their consular functions only in
addition to their regular callings.

Treaties

International Agreements

 In examining an international agreement, it is essential to identify the nature of the agreement in international
law and Philippine domestic law. Under international law, the agreement may be in the nature of a treaty or
the less formal Memorandum of Agreement, which creates legally-binding rights and obligations on the
contracting parties, or a Memorandum of Understanding, which is a non-legally binding instrument.

 In addition, the agreement has to be classified whether it is a treaty which requires both presidential ratification
and Senate concurrence, or an executive agreement which need presidential ratification, in order to enter in
force.

Treaty/Memorandum of Agreement vs. Memorandum of Understanding

 In international law and Philippine treaty law practices, the determining factor whether an international
instrument is in the nature of a treaty/Memorandum of Agreement (MOA) or a Memorandum of Understanding
(MOU) is the intent of the contracting states to be legally-bound or otherwise by its provisions.

 The phrase “legally-binding” means a party to a treaty/MOA-type agreement may compel the other party to
comply with its terms in case of a breach, including a possible recourse to a third-party compliance
mechanism. In contrast, the parties to a MOU intend to carry out its terms on a best-effort basis. A
treaty/MOA often describes the specific responsibilities of, or actions to be undertaken by the parties with a
view to the accomplishment of their goals. On the other hand, a MOU largely contains general principles of
cooperation, broad goals and plans shared by the parties. It may list the obligations of both sides, but
performance and compliance are on a best-effort basis. In essence, the objective of the parties to a MOU is to
record their mutual understanding as to how they will conduct themselves, rather than to create international
legal rights and obligations.

 Both treaty/MOA and MOU are binding, following the principle of pacta sunt servanda, with the qualification
that with respect to a MOU, the latter is neither legally-binding nor legally enforceable. In case of a breach, the
aggrieved party may not compel under international law the other party to carry out the provisions of a MOU.
The MOU format is useful in certain situations. It is preferred for reasons of confidentiality and the ease and
convenience in concluding them. It is also often used when dealing with sensitive defense and national security
matters or to protect delicate commercial information, such as those accompanying air services agreements.
Since MOUs are non-legally binding, there is no international requirement to publish them. MOUs also usually
come into force and effect upon signature.

 MOUs which are in the form of declaration, implementing arrangement, letter of intent, joint communiqué and
joint statement, do not require ratification by the President in order to enter into force. Nevertheless, MOUs
whose provisions denote intent by the parties to be legally-bound, will require presidential ratification.

 The treaty/MOA and MOU formats use differing terminologies, notably the use of the word ”agree” in
treaties/MOAs and “decide, accept or approve” in MOUs. “Parties” in treaties/MOAs are also referred to as
“Participants” in MOUs.

Treaty vs. Executive Agreement

 Executive Order No. 459, series of 1997 was issued by President Fidel V. Ramos. According to the executive
order, the Office of Legal Affairs, on behalf of the DFA, determines whether an agreement is an executive
agreement or treaty. Thus: Section 9. The Department of Foreign Affairs shall determine whether an
agreement is an executive agreement or a treaty

 Executive Order No. 459 defines “treaties” as “international agreements entered into by the Philippines which
require legislative concurrence after executive ratification,” while “executive agreements” are “similar to treaties
except that they do not require legislative concurrence.”

 As noted in the Eastern Sea Trading ruling, a treaty would involve political issues or changes of national policy,
or arrangements of permanent character. An agreement which would conflict with existing laws and thus
require amendment of said laws should be considered as a treaty requiring Senate concurrence. Those which
may be in conflict with established national policy and require a change of said policy shall likewise be deemed
as requiring Senate concurrence. Agreements which would require the enactment of a law for its
implementation will also require Senate concurrence.

 Examples of agreements treated as treaties are those that provide tax exemptions, because only Congress
may grant such exemption; grant privileges and immunities to individuals or international organizations, except
diplomatic immunities and privileges for United Nations agencies and other international organizations which
are by now the norm; provide direct allocation of funds, as this prerogative is exclusively lodged with Congress;
and those that criminalize certain conduct, as only the legislature may pass a penal legislation.

Executive agreements

 executive agreements are those that which “embody adjustment of details carrying out well-established
national policies and tradition, involving arrangements of a more or less temporary nature.

Examples of agreements have been treated as executive agreements

 air services agreement, cultural agreement, defense cooperation agreement, mutual logistics support
agreement, scientific and technological cooperation agreement, economic cooperation agreement, agreement
on gainful employment of spouses of members of diplomatic and consular missions; tourism cooperation
agreement, investment promotion and protection agreement, labor promotion and protection agreement,
maritime agreement, waiver of visa requirement agreement, and trade cooperation/facilitation agreements,
such as those among ASEAN countries

The following have been treated as treaties which require presidential ratification and Senate concurrence:

a) Status of forces agreement/Visiting forces agreement


b) Comprehensive free trade agreement/economic partnership agreement, which go beyond what the
President is allowed to undertake unilaterally under Article VI, Section 28(2) of the Constitution and the
Customs and Tariff Code
c) Agreement on the avoidance of double taxation, since tax exemptions can be made only under the authority
of Congress
d) Agreement which establishes the headquarters of an international organization, with concomitant grant of
immunities to the organization and its officials and staff
e) Agreement on the transfer of sentenced persons, since the exercise of criminal jurisdiction is based on the
territoriality principle; and
f) Other agreements, “especially multilateral conventions, involving political issues or changes of national
policy or involve international arrangements of a permanent character,” pursuant to the Commission of
Customs ruling.
Treaty

 as defined in the Vienna Convention on the Law of Treaties, Article 2 (1) of which states that: “treaty” means 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 and whatever its particular designation.

Under this definition, a treaty has the following elements:

1. An international agreement. To be a treaty, an agreement has to have an international character.

2. Concluded between states. A treaty is between states, governments or their agencies or instrumentalities
acting on behalf of states. A treaty may be concluded by heads of states or governments, their ministries or
other state agencies. An agreement or contract between international or multinational companies, or between
a state and such a company, is not a treaty. This is true, even when such an agreement provides that it shall
be interpreted in whole or in part by reference to rules of international law.

3. In written form.

4. Governed by international law. This refers to the element of intent to create obligations under international
law. If there is no such intention, the instrument is not a treaty.

5. Whether embodied in a single instrument or in two or more related instruments. Treaties can also be
drawn up in less formal ways, such as through the exchange of notes.

Binding Force

 The binding force of a treaty comes from the VOLUNTARY decision of sovereign states to obligate themselves
to a mode of behavior.

 While treaties are generally binding only on the parties, the number of contracting parties and the generality of
the acceptance of the rules created by the treaty can have the effect of creating a universal law in much the
same way that general practice suffices to create s customary law

Functions of Treaties

 To enable parties to settle finally actual or potential conflicts


 To make it possible for the parties to modify rules of international customary law by means of optional
principles or standards
 To pave the way for the transformation of unorganized international society into one which may be organized
on any chosen level of social integration
 To provide the humus for the growth of international customary law

Essential requisites of a valid treaty

 Entered into by parties having the treaty-making capacity


 Through their authorized organs or representatives
 Without the attendance of duress, fraud, mistake or other vice of consent
 On a lawful subject
 In accordance with their respective constitutional processes

Usual steps in the treaty-making process

 Negotiations  Ratification
 Signature  Registration with the United
 Nations

Reservation

 Reservations are essentially caveats to a state's acceptance of a treaty. Reservations are unilateral statements
purporting to exclude or to modify the legal obligation and its effects on the reserving state. These must be
included at the time of signing or ratification, i.e. "a party cannot add a reservation after it has already joined a
treaty".
Accession

 As a rule, treaty is binding only on the contracting parties, including not only the original signatories but also
other states which, although they may not have participated in its negotiation, have been allowed by its terms
to sign it later.

Amendment and Modification

 Amendment is a formal revision done with the participation, at least in its initial stage, by all the parties to the
treaties.

 Modification, on the other hand, involves only some of the parties.

Invalidity of treaties

 Error
 Fraud
 Corruption of a representative of a State
 Coercion of a representative of a State
 Jus Cogens

Termination of a Treaty

 By expiration of the term


 By accomplishment of the purpose
 By impossibility of performance
 By loss of the subject matter
 By novation
 By desistance of the parties, through mutual consent
 By extinction of one of the parties if the treaty is bipartite
 By occurrence of a vital change of circumstance under the doctrine of rebus sic stantibus
 By the outbreak of war between the parties, except where the treaty is intended precisely to regulate their
relations during war
 By voidance of the treaty because of defects in its conclusion, violation of its provisions by one of the parties,
or incompatibility with international law, the UN Charter, or a subsequent agreement

Doctrine of rebus sic stantibus

 According to Jessup, "this doctrine constitutes an attempt to formulate a legal principle which would justify non-
performance of a treaty obligation if the conditions with relation to which the parties contracted have changed
so materially and so unexpectedly as to create a situation in which the exaction of performance would be
unreasonable." The key element of this doctrine is the vital change in the condition of the contracting parties
that they could not have foreseen at the time the treaty was concluded.

 The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative

 There is a necessity for a formal act of rejection, usually made by the head of State, with a statement of the
reasons why compliance with the treaty is no longer required

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