PUBLIC INTERNATIONAL LAW NOTES

By: Evelyn De Matias

COURSE OUTLINE

I. PRELIMINARY CONSIDERATIONS

A. Brief history of Public International Law

B. Definition of International Law

            - body of rules & principles which are recognized as legally binding and governs the relations of states and other entities with one another (as between international organizations, between international organizations and states, between international organizations and states and the people).

C. Functions of International Law

1.      defines the existence of states

2.      provides framework of diplomatic relations

3.      governs international agreements

4.      sets forth rules for international commerce

5.      governs individual human rights

6.      regulates protection of the global environment (air, land, sea and global resources)

7.      VITAL FUNCTION: eliminates elements of unlawful force in the solution of human conflicts and provides basis for the orderly management of international relations; social progress


D. Foundations of International Law

            1. Principle of comity

            2. Principle of reciprocity/mutuality

            3. Principle of independence

            4. Principle of equality of states

E. Theories About International Law

1. Natural Law School

            - there are certain normative principles that are true or “self evident” and which exists independently of their codification or enforcement by human beings.

            - naturalists maintain that the law of nations is binding upon states because it is a branch of great law of nature, the sum of those principles which ought to control human conduct, being founded on the very nature of man as a rational and social being.

2. Positivist School

            - the basis of obligation of international law is founded in the CONSENT OF STATES.

            - This school of thoughts provides that consent of states is given:

                        a. Tacitly – in case of customary international law

                        b. Expressly – in case of conventional law

                        c. Presumed – in case of General Law of Nations

3. Eclectic/Groatian School

            - occupy middle position between the natural and positivist school

            - recognizes that international law is in part a product of natural law and at the same time the positive consent of states to be bound by its rules.

F. Basis of International Law/Schools or Theories in the Study of International Law

            The schools of study of international law are the basis of the obligation in international law.

G. Theories as to the Basis of International Law

1. Direct Consent

            - international law is based upon the direct consent of States upon their individual acceptance of its principles and rules.

2. Implied Consent

-         a fiction to account for the acceptance of the great body of general principles and specific rules that had come to form the body of customary law.

3. Mutuality of Interest

-         international law is a subjective law; its binding force depends upon mutuality of interest which could only be maintained by altering from time to time such rules as it might be no longer to the interest of the parties to observe.

4. Necessity

-         the fact that nations have common interest constitutes the actual community of states and at the same time imperatively demands a rule of law so that international law may be said to be based upon the very necessity for its existence.

H. Two Main Branches of International Law

1. Public International Law (Law of Nations)

2. Private International Law (Conflicts of Law)

I. Branches of International Law

            1. Human rights law

            2. Humanitarian law

            3. Refugee law

            4. Criminal law

            5. Economic law

            6. Environmental law

J. General Classifications of Public International Law

1. Consular law

2. Diplomatic law

3. International Aviation law

4. International criminal law

5. International environmental law

6. International human right law

7. International humanitarian law

8. International space law

9. International trade law

10. law of state responsibility

11. Rules according to higher law

12. UN Conventions on the law of the Sea

13. Use of force continuum

K. Public International Law vs Private International Law

Public International Law (Law of Nations)

            - regulates the relationship between states and international entities

            - concerned with questions of rights between nations.

Private International Law (Conflicts of Law)

            - regulates comity of states in giving effect in one to the municipal laws of another relating to private persons.

            - PRINCIPLE: One country gives respect and give effect to the laws of another so far as can be done consistently with its own interest.

L. Is International Law a True Law?

            - based on popular views it is not a true law because:

                        ● law of nation lacks the equality of positive authority or command.

                        ● no legal duty/obligation of obedience on the part of those whom it is

                           addressed with no courts to interpret and enforce international law.

                        ● no penalty prescribed for disobedience with lack of physical power to

                           enforce obedience.

-         International law is recognized as law of practice

● sanctions for failure to comply though indirect is similar to municipal   

   law.

● includes force of public opinion, self help, intervention by third party

    states, sanctions of international organizations such as the UN and as a

    last resort – WAR.

                       

M. Classification of International Law

1.      Customary

2.      Conventional

3.      General International Law

N. Public International Law vs Municipal Law

PUBLIC INTERNATIONAL LAW	MUNICIPAL LAW
- deals with states’ relations	- deals with internal affairs of a state
- sources are customs and treaties	- sources are customs and precedents grown within the state’s jurisdiction and legislation enacted by its law making body.
- law is not a law above but between sovereign states	- law of sovereign over individuals subject to state authority.
- laws not codified except on particular subjects	- laws are codified
- penalty/sanction is addressed by pressure put upon a state to behave in good faith, diplomacy, retaliations or severance of economic ties, war as an act of self defense (as recognized by the UN). Only strong countries may impose these sanctions to weak countries in reality.	- penalty may be in the form of imprisonment (in violation of the penal code) or sanctions of damages and administrative sanctions.

** In International Tribunal the international law will prevail over Municipal law.

** In a municipal tribunal, one must distinguish if conflicts involve international law and foreign international law in which case international law prevails;

** Municipal law prevails if conflicts involve conflicts between municipal law and international law.

O. Relation Between International Law & Municipal Law

1. Monism

            - views international law and national law as part of single legal system with domestic law derived from the broader framework provided by international law.

2. Dualism

            - considers international law and internal law of states as wholly separate legal systems, the former creating obligations only among sovereign nations and the latter allowing each state to determine the means and form by which it carries our its obligations.

P. Relation between Public International law and Philippine Municipal Law

Q. Conflicts between Public International Law and Municipal Law

            - Municipal law, when in conflict with PIL is given effect in municipal courts, the reason being that such courts are organs of municipal law and are accordingly bound by it in all circumstances.

            - the fact that international law has been made part of the law of the land does not mean to imply it is primary over national or municipal law.

            - in Doctrine of Incorporation, PIL is given standing equal but not superior to national legislative enactments.

PRINCIPLES AND DOCTRINES:

DOCTRINE OF TRANSFORMATION

-         requires legislative action to make the treaty enforceable in the municipal sphere.

-         Municipality law expressly adopts an international law thru an act of legislation.

-         The doctrine observed in treaties

DOCTRINE OF INCORPORATION

            - Considers rules of international law as forming part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere.

            - the doctrine observed in customary international law.

ADOPTION DOCTRINE

            - Municipality law impliedly adopts an international law.

HARMONIZATION DOCTRINE

            -International law is applied only when appropriate.

RESTRICTED AUTOMATIC DOCTRINE

            - Based on Article 2, section 2 of Constitutional provision in the Philippines, “Philippines adopts the generally accepted principles of international law as part of the law of the land.” It stresses the automatic adoption of international law but involves restriction that such automatic adoption of international law is only as to generally accepted principles of international law.

R. Conflict between a Treaty and a Constitution

-         in states where Constitution is the highest law of the land, both statutes and treaties may be invalidated if they are in conflict with the Constitution.

-         In the Philippines, the Supreme Court may declare a treaty unconstitutional if it is in conflict with the Constitution.

S. Structure of Public International law

1. Law of Treaties and other international agreements

2. Law on Armed Conflicts

3. Rubrics of international delinquencies or torts

4. International responsibilities of States

T. the Role of Public International Law

U. World Politics

V. Related Cases

i.                    The Interhandel Case (Decision of the International Court of Justice, March 21, 1949)

ii.                 Kuroda v Jalandoni, 83 Phil 171

Facts

Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines was charged before the Philippine Military Commission for war crimes. As he was the commanding general during such period of war, he was tried for failure to discharge his duties and permitting the brutal atrocities and other high crimes committed by his men against noncombatant civilians and prisoners of the Japanese forces, in violation of of the laws and customs of war.

Kuroda, in his petition, argues that the Military Commission is not a valid court because the law that created it, Executive Order No. 68, is unconstitutional. He further contends that using as basis the Hague Convention’s Rules and Regulations covering Land Warfare for the war crime committed cannot stand ground as the Philippines was not a signatory of such rules in such convention. Furthermore, he alleges that the United States is not a party of interest in the case and that the two US prosecutors cannot practice law in the Philippines.

Issue

1.Whether or not Executive Order No. 68 is constitutional

2.Whether or not the US is a party of interest to this case

3.Whether or not Atty. Melville S. Hussey and Robert Port is allowed to practice law profession in the philippines.

Ruling

The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office and prescribing rules on the trial of accused war criminals, is constitutional as it is aligned with Sec 3,Article 2 of the Constitution which states that “The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the nation.” The generally accepted principles of international law includes those formed during the Hague Convention, the Geneva Convention and other international jurisprudence established by United Nations. These include the principle that all persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses in violation of laws and customs of war, are to be held accountable. In the doctrine of incorporation, the Philippines abides by these principles and therefore has a right to try persons that commit such crimes and most especially when it is committed againsts its citizens. It abides with it even if it was not a signatory to these conventions by the mere incorporation of such principles in the constitution.

The United States is a party of interest because the country and its people have been equally, if not more greatly, aggrieved by the crimes with which the petitioner is charged for. By virtue of Executive Order No. 68, the Military Commission is a special military tribunal and that the rules as to parties and representation are not governed by the rules of court but by the very provisions of this special law.

On the 3rd issue, the court ruled that the appointment of the two American attorneys is not violative of our national sovereignty. It is only fair and proper that the U.S. which has submitted the vindication of crimes against her government and her people to a tribunal of our nation should be allowed representation in the trial of those very crimes. The lest that we could do in the spirit of comity is to allow this representation in said trial.

iii.               Ichong v Hernandez, May 31, 1957

Facts: RA 1180 “An Act to Regulate The Retail Business” prohibits foreigners and foreign owned corporations to engage in the retail business/trade in the Philippines. Petitioner assails the Act contending it violates the Treaty of Amity between the Philippines and China and is unconstitutional.

Issue: Whether or not RA 1180 a valid exercise of police power of the State.

Held: The court held that RA 1180 is a valid exercise of the police power of the State since such sovereign power of the State could not be bargained through any Treaty or contract especially when the intent of such legislation is to remedy a real and actual danger to the national economy due to the increasing dominance and control of aliens in the retail trade in the country.

iv.                Phil. Association of Free Labor Unions (PAFLU) et al. v Secretary of Labor et al., February 27, 1969

v.                   Paquete Habana case, 125 US 677 (1900)

Paquete Habana.; The Lola, 175 U.S. 677 (1900), was a landmark United States Supreme Court case that reversed an earlier court decision allowing the capture of fishing vessels under Prize (law). Its importance rests on the fact that it integrated Customary international law with American law, perhaps the quintessential position of those who hold a monist perspective of international law.

Background of the case

In April 1898 two fishing vessels, the Paquete Habana, and the Lola separately left Cuban ports in Havana in order to fish. The two vessels were eventually captured by US Naval vessels as part of Admiral William T. Sampson's blockade of Cuba, who was ordered to execute the blockade 'in pursuance of the laws of the United States, and the law of nations applicable to such cases.' The vessels were placed within Cuba's territorial waters at the onset of the Spanish-American War and then taken to Key West, where both vessels were eventually auctioned by the district court.

Admiral Sampson justified the seizures by stating that most fishing vessels, flying under the Spanish banner were manned by excellent seamen, "liable for further service" as naval reserves, an asset that could eventually be used against US interests in the Spanish-American War.

The owners of the vessels however made an appeal to the circuit courts, citing a long held tradition by nations of exempting fishing vessels from prize capture in times of war. This "tradition", a primary example of customary international law, dates back from an order by Henry IV in 1403, and has more or less been observed by a large majority of States ever since.

At the time of capture both vessels had no evidence of aiding the enemy, and were unaware of the US naval blockade. No arms were found on board, and no attempts were made to either run the blockade or resist capture.

The court's decision

The United Supreme Court, which cited lengthy legal precedents established to support the existence of a customary international law that exempted fishing vessels from prize capture eventually found the capture of both vessels as "unlawful and without probable cause", reversed the District Court's decision, and ordered the proceeds of the auction as well as any profits made from her cargo to be restored to the claimant, "with damages and costs".

vi.                Mejoff v Director of Prisons 90 PHIL 70 (1951)

Facts:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of this Court on July 30, 1949. "The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands. Upon liberation, he was arrested as a Japanese spy by U. S. Army Counter Intelligence Corps. Thereafter, the People's Court ordered his release. But the Deportation Board taking his case up found that having no travel documents, Mejoff was an illegal alien in this country, and consequently referred the matter to the immigration authorities. After the corresponding investigation, the Immigration Board of Commissioners declared on April 5, 1948 that Mejoff had entered the Philippines illegally in 1944, without inspection and admission by the immigration officials at a designated port of entry and, therefore, it ordered that he be deported on the first available transportation to Russia. The petitioner was then under custody, he having been arrested on March 18, 1948. In October 1948, after repeated failures to ship this deportee abroad, the authorities moved him to Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner of Immigration believes it is for the best interests of the country to keep him under detention while arrangements for his departure are being made. Two years having elapsed since the aforesaid decision was promulgated, the Government has not found ways and means of removing the petitioner out of the country, and none are in sight, although, it should be said in fairness to the deportation authorities that it was through no fault of theirs that no ship or country would take the petitioner.

Issue:

Whether or not Boris Mejoff should be released from prison pending his deportation.

Ruling:

The protection against deprivation of liberty without due process of law, and except for crimes committed against the laws of the land, is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality. Moreover, Sec. 3, Art. II of the Constitution of the Philippines "adopts the generally accepted principles of international law as part of the law of the Nation." And in a resolution entitled, "Universal Declaration Of Human Rights," and approved by the General Assembly of the United Nations, of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that "all human beings are born free and equal in degree and rights" (Art. 1); that "everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status" (Art. 2); that "every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "no one shall be subjected to arbitrary arrest, detention or exile" (Art. 9 ); etc. Premises considered, the writ will issue commanding the respondents to release the petitioner from custody upon these terms: that the petitioner shall be placed under the surveillance of the immigration authorities or their agents in such form and manner as may be deemed adequate to insure that he keep peace and be available when the Government is ready to deport him. The surveillance shall be reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for decision in case of abuse. No costs will be charged.

source: http://rabbit-icecold.blogspot.com/

vii.              Reyes v Bagatsing GR no. 65366, October 25, 1983

Facts

Retired Justice Jose B.L. Reyes, in behalf of the Anti-Bases Coalition, sought for a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 starting from Luneta to the gates of the United States embassy. The objective of the rally was to peacefully protest the removal of all foreign military bases and to present a petition containing such to a representative of the Embassy so it may be delivered to the United States Ambassador. This petition was to initially compel the Mayor of the City of Manila to make a decision on the application for a permit but it was discovered that a denial has already been sent through mail. It also included a provision that if it be held somewhere else, permit may be issued. The respondent mayor alleges that holding the rally in front of the US Embassy is a violation of the resolutions during the Vienna Convention on Diplomatic Relations adopted in 1961 and of which the Philippines is a signatory. In the doctrine of incorporation, the Philippines has to comply with such generally accepted principles of international law as part of the law of the land. The petitioner, on the other hand, contends that the denial of the permit is a violation of the constitutional right of the freedom of speech and expression.

Issue

Whether or not the Anti-Bases Coalition should be allowed to hold a peaceful protest rally in front of the US Embassy

Ruling

The Supreme Court ruled to allow the rally in front of the US Embassy to protect the exercise of the rights to free speech and peaceful assembly and on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of the permit. These rights are not only assured by our constitution but also provided for in the Universal Declaration of Human Rights. Between the two generally accepted principles of diplomatic relations and human rights, the former takes higher ground. The right of the freedom of expression and peaceful assembly is highly ranked in the scheme of constitutional values.

Source: http://pil-rizalyn.blogspot.com/2008/06/jbl-reyes-vs-bagatsing-gr-no-65366.html

viii.           Head Money cases, Edye v Robertson 112 US 580 (1884)

Facts:

In 1882 the Congress passed an act providing that a duty of fifty cents should be collected for each and every passenger who was not a citizen of the United States, coming from a foreign port to any port within the United States. Individuals and steamship companies brought suit against the collector of customs at New York, Mr. WH Robertson, for the recovery of the sums of money collected. The act was challenge on the grounds that it violated numerous treaties of the US government with friendly nations.

Issue:

WON the act is void because of the conflict with the treaty.

Ruling:

A treaty is a compact between independent nations, which depends for its enforcement upon the interest and honor of the governments that are parties to a treaty. Treaties that regulate the mutual rights of citizens and subjects of the contracting nations are in the same category as acts of Congress. When these rights are of such a nature as to be enforced by a court of justice, the court resorts to the treaty as it would to a statute. However, a constitution gives a treaty no superiority over an act on congress. In short, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.

ix.                Whitney v Robertson 124 US 190 (1888)

Facts:

Merchants were importing sugar from San Domingo, and when they arrived at the custom house in NY, they claimed b/c of the treaty btwn US & San Domingo, that the goods should be admitted duty free. The collector at the port refused, and the merchants were made to pay $21,936 in duties. Merchants then brought this claim to get back the duties paid. Merchants (P) argued that the treaty btwn US and San Domingo promised to provide most favored nation treatment to imports from San Domingo. The most favored nation treatment was from a treaty btwn US and the Hawaiian Islands, where certain goods, including sugar, were exempt from dutycollection. Collector of the port (D) argued that he treated the goods as dutiable articles under the acts of Congress.

Issue:

Whether a treaty supersedes conflicting acts of Congress. -Not necessarily, both are binding.

Holding: Affirmed for D.

Reasoning: Both self-executing treaties and acts of Congress are considered supreme laws of the land, and both should have effect. Justice Fields says that when they conflict with each other, "the one last in date will control the other." Since the acts of Congress were dated last, they control. He also says that if the country with which the treaty is made is dissatisfied with the action of the US legislative dept, then they may present a complaint to the executive had of the govt. RULE: In the case of a conflict btwn a federal statute and a treaty, the one last in date will control.

Notes • Hierarchy - last in time rule • Here the act of congress has trumped an earlier treaty • Dualism again ○ Domestically, we care about checks and balances, that treaty no longer has any effect ○ But in international realm, this is a problem, b/c we are not honoring the treaty with Dominican Republic § Breaching treaty - can be taken to ICJ, etc. § Example of dualist - domestic vs. international obligations

Source http://dcomfortroom.blogspot.com/2009/12/whitney-v-robertson-124-us-190-1888.html

II. SOURCES OF PUBLIC INTERNATIONAL LAW

A. Sources of Public International Law as applied by the International Court of Justice

Direct Sources

i.                    International Conventions and Treaties

- most abundant sources of PIL

- between parties of treaties, the stipulations constitute the law between them.

- ex: Vienna Convention on the Law of Treaty

ii.                  International Customs

- custom exists when there is a clear and continuous habits of doing certain things develop under the conviction that it is obligatory and right.

- International Court of Justice held that customary rule mist be based on “constant and uniform usage.”

iii.                General Principles of law

- recognized by civilized nations

- Ex: Res judicata, prescriptions, due process, law of nature, estoppel, ex aequo et bono (fair and equity).

Secondary Sources (Subsidiary means for determining rules of law)

iv.                Teaching of most highly qualified publicists of the various nations

v.                  Judicial Decisions

B. Equity in International Law

Principle of Ex Aequo et Bono

            - means what is fair and good

            - falls under the general principle of law

            - equitable principle of law

C. Classification of sources of Public International Law

i.                     Direct sources

ii.                   Indirect, secondary, subsidiary sources

D. Related Cases

i. Agustin vs Edu, February 2, 1979 (88 SCRA 195)

III. THE INDIVIDUAL AND INTERNATIONAL LAW

A. Individual under International Law

i.                    The Law on Nationality

NATIONALITY 

- the bond that unites a person to a given state which constitutes his membership in the particular state, giving him a claim to the protection of that state and subjects him to the obligations created by the laws of that state.

- in International Law, the term nationality is used in place of citizenship which is understood in municipal law as being possessed of the full rights and privileges of membership in a political community.

ii.                  Rules on Multiple Nationalities (1930 Hague Convention on Conflict of Nationality Laws)

1930 HAGUE CONVENTION ON CONFLICT OF NATIONALITY LAWS

- Provides the following rules:

  A. RULES IN DETERMINING A PERSON'S NATIONALITY

        ARTICLE I. It is for each state to determine under it's own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international customs, and the principles of law generally recognized with regards to nationality.

        ARTICLE II. Any questions as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.

  B. RULES ON MULTIPLE NATIONALITIES

        ARTICLE III. A person having 2 or more nationalities may be regarded as it's national by each of the States whose nationality he possesses.

        ARTICLE IV. S State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.

        ARTICLE V. Within a Third State, a person having multiple nationalities shall be treated as if he had only one. The Third State State shall, of the nationalities which any such person possesses, recognize exclusively in it's territory either:
                1. The nationality of the country in which he is habitually and principally resident, or
                2. The nationality of the country with which in the circumstances he appears to be in fact most closely connected - DOCTRINE OF EFFECTIVE NATIONALITY.

        ARTICLE VI. A person possessing two nationalities acquired without any voluntary act on his part. May renounce on of them with the authorization of the State whose nationality he desires to surrender. This authorization may not be refused in the case of a person who has his habitual and principal residence abroad, if the conditions laid down in the law of the State whose nationality he desires to surrender are satisfied.

iii.                DOCTRINE OF EFFECTIVE NATIONALITY

- Within a Third State, a person having multiple nationalities shall be treated as if he had only one. The Third State State shall, of the nationalities which any such person possesses, recognize exclusively in it's territory either:
                1. The nationality of the country in which he is habitually and principally resident, or
                2. The nationality of the country with which in the circumstances he appears to be in fact most closely connected

iv.                DOCTRINE OF INDELIBLE ALLEGIANCE

-         a State may prohibit its nationals from changing their nationality under certain circumstances.

-         ex: C.A. No. 63 (Act providing for the ways in which Philippine Citizenship may be lost or re-acquired) which provides that Filipino citizen may lose his citizenship by subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining 2 years of age or more; Provided however that a Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country.

-         THE EXEMPTION TO THE GENERAL RULE PROVIDED BY ARTICLE 15 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS " that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality." 

v.                  DOCTRINE OF NEMO POTEST EXUERE PATRIAM

- doctrine providing that the bond of nationality could never be broken. 

- no one might transfer his allegiance to another state without the consent of the state which had first claim upon him.

- the basis of the Doctrine of Indelible Allegiance

B. Individual as subject of International Law

i.                    Subjects and objects of international law defined

Subject of Public International Law

- an entity directly possessed with personality with the rights and obligations in the international legal order

- ex: sovereign state as Philippines ( with capacity to sue in the International Court of Justice or may be sued in international tribunal)

2 KINDS OF SUBJECTS IN PUBLIC INTERNATIONAL LAW:

1. COMPLETE INTERNATIONAL PERSONALITY

  - ex: a state which may be divided into categories:

    A. Single or Simple State (ex. Philippines)

    B. Composite state
          B.1. Federal States (United States of America, united states of Switzerland)
                  - exists when the central or federal government exercises authority over both the various states in the Union and the        citizens thereof.
                  - regarded as an INTERNATIONAL PERSON
                  - have its own governmental machineries and absorbs all individual states associated together.
          B.2. Confederation
                  - has some power over it's individual state but not over the individual citizens of the member states. 
                  - not regarded as an INTERNATIONAL PERSON, each of the member state being represented by its own delegate.
                  - loose union or alliance formed through a treaty among various states, each of which is fully sovereign and independent.

          B.3. Real Union
                  - ex. United Arab Republic
                  - formed by two sovereign states linked together by a common government in external affairs and by a common chief of state. The union then possesses a single international personality that merges the separate personalities of the states as a unified whole. 

          B.4. Personal Union
                  - merger of two separate states in the sense that both have the same individual as the accidental or temporary head of state. The union however has no separate international personality since each of the member states has its own government and its own separate international personality.
                  - currently, there is no personal union in existence

          B.5. Incorporate Union
                  - one where the internal and external organs of government of two states are merged into one resulting in a single international personality.
                  - ex:  United kingdom of Great Britain and Ireland

2. INCOMPLETE, IMPERFECT, QUALIFIED OR QUASI-INTERNATIONAL PERSONALITIES

1. Dependent states

-subjected to control & sovereignty of some superior state/s in the conduct of their external & foreign affairs. 

2. Belligerent & insurgent communities

- Rebels and insurgents are organized group with no rights under the international law but if civil strife threatens to interfere with autonomy of foreign intercourse and tends to jeopardize sovereignty of the state over the insurgent community certain insurgent rights may be tacitly admitted. 

- if the act is piracy then it is private in character and ends are not political and no insurgent rights arise. 

- parent state still liable for acts committed by the insurgent community within the jurisdiction of said parent state even if foreign state admits existence of insurgent rights. 

- if hostile acts are committed by insurgents against a foreign state the latter may choose to punish them or turn them over to the parent state. 

- foreign states ought to refrain from interfering in hostilities between parent state and insurgent community. 

Bellingerent community rights arise when:
1. End must be political in character
2. Hostilities must be a character of war and carried out in accordance with law of war
3. Proportion of revolts must be to render the issue uncertain
4. The conduct of hostilities and general government of the revolting community must be in the hands of a responsible organization. 

Recognition of the international personality status of a bellingerent community in the international order is ONLY FOR LIMITED PERIOD OF TIME. 

3. Colonies, dependencies and possession

- they cannot be states but the international legal order grants them international personality in a restricted degree (sign international conventions and become member of United Nations. 

- COLONY is a dependent community with a number of citizens but remain subject to mother state. 

- DEPENDENCY is a territory distinct from country in which the supreme sovereign power resides but belonging rightfully to it subject to laws and regulations which the sovereign may think proper to prescribe. 

- POSSESSION is held by a title other than that of mere physical conquest. 

4. Mandate and trust territories

MANDATES - former territorial possessions of states defeated in the First World War and placed under control of League of Nations. They are afforded the chance to develop economically and socially by more advanced nations. 

TRUST TERRITORIES - under UN supervision, the Administering Authority exercising sovereignty power over them. 

5. Public and political corporations or companies

- private corporations fall under private international law but are also involved in public international law when in time of war their property and other rights are impaired or when maritime law has been infringed. 

6. International administrative bodies

- vested with international personality as they are beyond the control and authority of any particular state including the region in which seat of the organization may be situated. 

Object of Public International Law

- indirectly vested with rights and obligations in the international sphere
- ex: filipino private citizen ( who while entitled to certain rights which other states ought to respect has no recourse except to course his grievances through the Republic and its diplomatic officers)

ii.                  Status of individual under international law

- While Private individuals are regarded as objects of PIL, they are recently accorded a NEW STATUS IN INTERNATIONAL LAW and regarded as subjects in the international order with their importance laid down by the ff:
  - Charter of the UN and Universal Declaration of Human Rights
  - Nuremberg and Tokyo War Tribunals for war crimes
  - norms of general international law prohibiting piracy (committed only by private individuals and not by acts of state)
  - espionage rules
  -court practice of permitting foreigners to prosecute claims
  - rules safeguarding rights of alines and minorities
  - punishment on illegal use of flag. 
  - procedures in admiralty and maritime matters
  - special status accorded to refugees

NOTE: INDIVIDUALS therefore are TRUE SUBJECTS IF INTERNATIONAL LAW and STATES are only AGENTS through which they act in default of more convenient means of giving effects to their common interests. 

ACT OF AN INDIVIDUAL BECOMES AN ACT OF STATE

- when his act may be imputed on the State. 
- determined on the basis of the national legal order, the law of the State whose act is in question. 
- an act or performance not permitted or prescribed by law of the State cannot be imputable on the State.
- becomes imputable on a State when performed by an individual who is an organ of the State and competent under the law to represent the State in relation to other States such as the Head of State.

iii.                  International Organizations as subjects of International law

iv.                 Non-governmental organizations

v.                   Multinational corporations

vi.                 Complete international personalities

vii.                Incomplete, imperfect, qualified or quasi-international personalities

IV. STATES IN THE INTERNATIONAL SYSTEM

A. State defined

- group of people capable of procreation and sekf defense living in a definite territory (must be a land not sea) possessed of government to which inhabitants render obedience. 

B. Elements or Attributes of a State

I. According to majority school of thought

1. Group of people (man & woman capable of procreation).
2. Definite territory (fixed to settle disputes on jurisdiction; a definite space where acts of state esp. Coercive acts can be carried out legally as allowed by the general international law).
3. Government (machinery or instrument by which power in a state expresses its will and exercises its functions).
4. Independence (freedom from external control in the conduct of one's external and internal affairs).

II. According to Minority view

The majority school of thoughts and:

5. Possession of sufficient degree of civilization
6. Recognition by the Family of Nations

C. Fundamental Rights of States

i.                     The rights of existence, integrity and self-preservation

ii.                   The rights of sovereignty and independence

iii.                  The right of equality

iv.                 The right of property and jurisdiction

v.                   The right of legation or of diplomatic intercourse

The rights of existence, integrity and self-preservation

Basis

- existence presupposes its right to survive which is predicated not only to physical maintenance of its territorial integrity but also physical expansion that follows valid acquisition of territories. When its existence is in jeopardy it has a right of self preservation. 

1. The right to acquire territories

            a. Modes of acquiring territories

            1. discovery and occupation

                        - only stateless territory could be acquired by discovery and occupation.

                        - Discovery should be coupled with occupation. An effective occupation is one that would effectively take real possession of the territory and establish some kind of administration.

            2. prescription (acquisitive prescription)

                        - must be continuous, public and adverse whether good or bad faith of some other state’s territory and there must be a lapse of reasonable period of time.

            3. cession

                        - territory is acquired voluntarily in case of donation or sale or involuntary as in the result of war.

                        - perfection of cession commences upon meeting of minds.

                        - mere lease effectuated by the owner in favor of another state cannot transfer ownership. A state making the cession is a mere usurper or intruder with no transferable right, the cession is purposeless and inefficacious.

            4. conquest and subjugation

                        - CONQUEST is the acquisition of the sovereignty of a country by force of arms exercised by an independent power.

                        - Mere physical conquest gives an INCHOATE TITLE; for this title to ripen into ownership subjugation must follow.

                        - SUBJUGATION takes place if the formal cession is made in the TREATY OF PEACE.

                        - TREATY OF PEACE is essentially entered into through the use of force and intimidation.

                        - Under the general international law, while duress usually vitiates the consent given to a treaty, an EXCEPTION is the TREATY OF PEACE for such treaty is precisely entered into as a result of fear.

                        - Present UN Charter however the use of threat and force is considered illegal.

            5. accretion

                        - is the process of attaching or incorporating something to what an owner of territory already has.

                        - may be natural (caused by natural force such as current of river) or artificial (as in act of state in reclaiming part of sea in reclamation projects).

            b. Modes of losing territories

           

            1. Abandonment (must be physical abandonment of the property with the intent never to return to the same).

            2. Prescription (extinctive prescription)

            3. Cession

            4. Subjugation

            5. forces of nature (i.e. avulsion; volcanic eruption)

            6. Successful revolutions and secessions (mere declaration of independence does not commence a new state – success has to follow)

c. Space Law

                       

i. Air space

                        ii. Outer space

                        LEGAL STATUS OF SPACE:

                                    - space beyond the atmosphere is incapable by its very nature of appropriation on behalf of any particular sovereignty.

                                    - theoretically similar to the rule of “freedom of the seas” where seas can’t be possessed by any particular government and necessarily open to free spatial navigation by all those who may venture into its unknown confines.

                        JURISDICTION OVER SPACE ACTIVITIES

                                    - Control and supervision vested in international bodies (i.e. UN)

                                    - It may be exercised by the country conducting the activity from which the departure was physically made and of citizens conducting the enterprise.

2. THE RIGHT TO SELF DEFENSE

REQUISITES: (Art. 51 of UN Charter)

1. An armed attack
2. Attack must be against a member of the UN
3. Security Council must not have acted yet

DOCTRINE OF SELF-HELP

- the right to self-defense which is an extension of the right to self-preservation hence under the general international law the right continues to exist even if attack is made against a non-UN member state.

ALLIANCE EXISTS

- because members of UN have implicit faith in each other’s desire for world peace.

- some members feel the necessity of taking measures to give maximum feeling of security either thru mutual protection or by outright combination of strength.

3. Cases

Island of Palmas Case

Facts: In the 16^th Century Spain discovered an island midway between Mindanao and Dutch East Indies. However Spain did not effectively possess the territory. It was Holland which exercised authority over the land. As a successor of Spain, the US asked that the island be awarded to it.

Held: The island cannot be given to the US for the inchoate title possessed by Spain never ripened into a real title for its failure to effectively possess and administer the territory within a reasonable period of time.

Inchoate Title – discoverer must be given full opportunity to effectively possess and in the meantime other states are legally excluded from the occupation of the territory involved. 

to be continued for midterm coverage ....