Hizon Notes - Public International Law

NOTES ON PUBLIC INTERNATIONAL LAW Kenneth & King Hizon (3A) _____________________________________________

Facultad de Derecho Civil 1 UNIVERSITY OF SANTO TOMAS

UNIVERSITY OF SANTO TOMAS

Faculty of Civil Law

A.Y. 2012-2013 First Semester

PUBLIC INTERNATIONAL LAW

INTRODUCTION Q: What is international law? A: It is a body of principles, norms and processes which regulates the relations of State and other international persons, and governs their conduct affecting the interest of the international community of States as a whole (Magallona, p. 1, 2005). Q: What is public international law? A: It is the body of rules and principles that are recognized as legally binding and which govern the relations of states and other entities invested with international legal personality. Q: What is private international law? A: It is that part of the law of each State which determines whether, in dealing with a factual situation, an event or transaction between private individuals or entities involving a foreign element, the law of some other State will be recognized. Q: What is the other term for private international law? A: Conflicts of laws.

RELATIONS BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

Doctrine of Incorporation Q: What is the doctrine of incorporation? A: It means that the rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. This is followed in the Philippines. Q: Under what instance does this doctrine apply? A: It is applied whenever municipal tribunals or local courts are confronted with situations in which there appears to be

a conflict between rule of international law and the provisions of the Constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause. In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason 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 pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Secretary of Justice v. Lantion, 2000).

Taada v. Angara (272 SCRA 18)

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. 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. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations.

Irish Diosomito



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.

ARTICLE II, 1987 Philippine Constitution DECLARATION OF PRINCIPLES AND STATE POLICIES

PRINCIPLES Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Q: Give examples of generally accepted principles of International Law? A:

1. Pacta sunt servanda 2. Rebus sic stantibus- agreement is valid only if the

same conditions prevailing at time of contracting continue to exist at the time of performance

3. Par en parem non habet imperium (State Immunity from Suit)

4. Sovereign Equality of States 5. right of states to self-defense 6. right to self-determination of people

Doctrine of Transformation

Q: What is the doctrine of transformation? A: Legislative action is required to make the treaty enforceable in the municipal sphere. Generally accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. This doctrine runs counter Art. II, Sec. 2, of the 1987 Constitution. Q: What is pacta sunt servanda? A: The 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 a valid international agreement is bound to make in its legislation such modification as may be necessary to ensure fulfillment of the obligation undertaken. Q: Who ratifies the treaties? A: In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature.

The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification (Bayan vs. Zamora, G.R. No. 138570, October 10, 2000).

This provision lays down the general rule on treaties or international agreements and applies to any form of treaty with a wide variety of subject matter. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective.

Q: State the constitutional basis. A: Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

Right to self-determination of the peoples Article 2, 1987 Constitution

Section 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. Q: What is the right to self-determination of the peoples? A: The right of peoples everywhere to freely determine their political status and pursue their economic, social and cultural development. It is a new concept in international law. It is understood as the right to internal self-determination of the people in pursuit to their social, economic and political development within the framework of an existing state. Q: What are the 2 classification of rights? A:

1. individual Ex: Bill of rights

2. collective Ex: Right to self-determination, right of the people to balanced and healthful ecology

NOTE: The right to self-determination has now grown and is elevated into a generally accepted principle in international law. Q: Who may claim the right to self-determination? A: It refers to the



a. right of indigenous peoples and b. indigenous cultural communities

and in extreme cases, of people:

a. under colonial rule b. from other foreign domination or exploitation

outside the colonial context Q: What are the 2 kinds of right to self-determination? A:

1. external 2. internal

Province of North Cotabato

Q: What is the scope of the right to self-determination? A: The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. External self-determination can be defined the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. Indeed, the right to self-determination of the people is now elevated into a generally accepted principle. However, it is only limited to internal right to self-determination.

SOURCES OF PUBLIC INTERNATIONAL LAW

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE Article 38

1. The Court, whose function is to decide in accordance

with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or

particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly

qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Q: What are the sources of public international law? A: Article 38 of the Statute of International Court of Justice (SICJ) directs that the following be considered before deciding a case:

A. Primary

I. Treaties or International Conventions II. International Custom III. General Principles of Law Recognized by Civilized Nations

B. Secondary/Subsidiary

IV. Judicial Decisions V. Teachings of authoritative publicists

Treaties

Q: What are the elements for a valid treaty? A: Same elements as to ordinary contracts:

1. consent 2. object 3. consideration

Q: What are contract treaties? A: Bilateral arrangements concerning matters of particular or special interest to the contracting parties. They are sources of particular international law but may become primary sources of public international law when different contract treaties are of the same nature, containing practically uniform provisions, and are concluded by a substantial number of States. Q: What are law-making treaties? A: Treaties which are concluded by a large number of States for purposes of:

1. Declaring, confirming, or defining their understanding of what the law is on a particular subject;

2. Stipulating or laying down new general rules for future international conduct; and

3. Creating new international institutions. Q: Is there a difference between lawmaking treatise (traits-lois) and contractual treatise (traits contracts)?



A: There is no significant difference. All treaties are lawmaking inasmuch as they lay down the rules of conduct which the parties are bound to observe as law. The only difference is that contractual treaties are concluded on short-term, particular questions and they terminate their validity after they have fulfilled their purpose; whereas, lawmaking treaties related to a broad sphere of relations and are concluded for long-term purposes. Q: Who are bound by treaties and international conventions? A: GR: Only the parties. XPN: Treaties may be considered a direct source of international law when concluded by a sizable number of States, and is reflective of the will of the family of nations.

Customs

Q: What is custom? A: Custom is the practice that has grown up between States and has come to be accepted as binding by the mere fact of persistent usage over a long period of time

It exists when a clear and continuous habit of doing certain things develops under the CONVICTION that it is obligatory and right.

This conviction is called "Opinio Juris" Q: What are the elements of international custom? 1. General practice, characterized by uniformity and consistency; 2. Opiniojuris, or recognition of that practice as a legal norm and therefore obligatory; and 3. Duration NOTE: Repetition of practice or action of states is necessary. Q: How is the element of opinion juris understood? A: It means that the States must believe that the practice is required by law, and not because of courtesy or political expediency.

General Principles of Law Recognized by

Civilized Nations

Q: Give examples of General Principles of Law Recognized by Civilized Nations.

A: 1. estoppel 2. pacta sunt servanda 3. res judicata 4. prescription 5. principle of justice and law 6. res inter alios acta rule 7. he who comes to the court must come with clean

hands Q: Does the stare decisis rule binding under public international law? A: No. The doctrine of stare decisis is not applicable in international law per Art.59 of the ICJ which states that "The decision of the Court has no binding force except between the parties and in respect to that particular case." This means that these decisions are not a direct source, but they do exercise considerable influence as an impartial and well-considered statement of the law by jurists made in the light of actual problems which arise before them, and thus, accorded with great respect.

Article 59, ICJ

Article 59. The decision of the Court has no binding force except between the parties and in respect of that particular case.

Teachings of authoritative publicists Q: What are the requisites in order to consider a person to be a highly qualified publicist? A: 1. His writings must be fair and impartial representation of law; 2. An acknowledged authority in the field.

Rome Statute Q: What is Rome Statute? A: The Rome Statute of the International Criminal Court (often referred to as the International Criminal Court Statute or the Rome Statute) is the treaty that established the International Criminal Court (ICC). The Philippines is the 117th country to ratify the Rome Statute according to Dean Pangalanan.

United Nations Q: What are the 6 principal organs of the U.N. A:

1. General Assembly



2. Security Council 3. Economic Social Council 4. Trusteeship Council 5. International Court of Justice 6. Secretariat

Q: What is the International Court of Justice? A: It is the primary judicial organ of the United Nations

Jus cogens and Erga omnes

Q: What is jus cogens (compelling law) norm? A: A jus cogens norm is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. E.g. the prohibition against the use of force under the UN Charter (Outlawing of acts of aggression); Outlawing of genocide; Basic human rights, including protection from slavery and racial discrimination; principle of self-determination, crimes against humanity, prohibition against slavery and slave trade, and piracy (Magallona, p. 26, 2005). Q: Distinguish jus cogens from jus dispositivum. A: 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 catregory than a jus dispositivum norm which States can set aside or modify by agreement. Q: May a treaty or conventional rule qualifies as a norm of jus cogens character? A: No. Treaty rule binds only States that are parties to it and even in the event that all States are parties to a treaty, they are entitled to terminate or withdraw from the treaty. Q: What is erga omnes (in relation to everyone)? A: It is an obligation of every State towards the international community as a whole. All states have a legal interest in its compliance, and thus all States are entitled to invoke responsibility for breach of such an obligation. Q: Distinguish between erga omnes from an obligation inter se (which a State owes to another State)? A: Erga omnes, by their nature, are the concern of all States. All States can be held to have a legal interest in their protection. Eg. Outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of

the human person, including protection from slavery and racial discrimination.

Yogyakarta Principles

Q: What are the Yogyakarta Principles? A: The Yogyakarta Principles ensure the full enjoyment of all human rights by all persons regardless of sexual orientation and gender identity. They were put together by a distinguished group of human rights experts in November 2006 at Yogyakarta, Indonesia and have since been introduced formally to the United Nations (UN) system, translated into the six official UN languages and launched in several countries. The Yogyakarta Principles ensure the full enjoyment of all human rights by all persons regardless of sexual orientation and gender identity. They were put together by a distinguished group of human rights experts in November 2006 at Yogyakarta , Indonesia and have since been introduced formally to the United Nations (UN) system, translated into the six official UN languages and launched in several countries. Q: Is the Yogyakarta Principles accepted under our jurisdiction? A: We are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice (Ang Ladlad LGBT Party v. COMELEC). Q: What is the concept ex aequo et bono? A: It is a judgment based on considerations of fairness, not on considerations of existing law, that is, to simply decide the case based upon a balancing of the equities. (Brownlie, 2003)

SUBJECTS AND OBJECTS OF INTERNATIONAL LAW

2 Concepts:

1. Traditional concept- Only States are considered subjects of international law.

2. Contemporary concept- Individuals and international organizations are also subjects because they have rights and duties under international law.



Subjects of international law

Q: What is a subject of international law? A: A Subject is an entity that has an international personality. An entity has an international personality if it can directly enforce its rights and duties under international law. Where there is no direct enforcement of accountability and an intermediate agency is needed, the entity is merely an object not a subject of international law. It is an entity with capacity of possessing international rights and duties and of bringing international claims (Magallona, p. 33, 2005).

Q: When does an entity acquire international personality? A: When it has right and duties under international law; can directly enforce its rights; and may be held directly accountable for its obligations. Q: Distinguish between general or objective international personality from particular or special international personality? A: As to the first, rights and obligations are conferred by general international law and such personality is binding erga omnes. As to the second, personality binds only those which give consent. It is brough about by their agreement and is recognized only among themselves as parties to that agreement.

GENERAL SPCEIAL Right and obligations are conferred by general international law and such personality is binding erga omnes

Personality binds only those which give consent:

a. Express b. tacit

Q: If an entity is not a subject of international law, can it still assume certain characteristics of international personality? A: Yes, but in a special or restricted context such as that defined by agreement, recognition or acquiescence. Q: How is the State regarded as a subject of international law? A: The State is regarded as subject of international law or an international legal person in that it has, in other words, the capacity to be bearer of rights and duties under international law. The status of the State as subject of law or an international person is conferred by customary or general international law. It possesses erga omnes or objective personality not merely by virtue of recognition on the part of particular states.

Q: How is the primacy of states as subjects of international law explained? A: The States are the repositories of legitimated authority over peoples and territories. It is only in terms of State powers, prerogatives, jurisdictional limits and law-making capabilities that territorial limits and jurisdiction, responsibility for official actions, and a host of other questions of co-existence between nations can be determined. A: Are international organizations considered as subjects of international law? A: Yes, if their legal personality is established by their constituent instrument or charter. Their status is determined by agreement and not by general or customary international law. Their personality is derivative of the collective will of the states creating it. Q: What is the criterion for legal personality to be met? A:

1. A permanent association of states, with lawful objects, equipped with organs

2. A distinction, in terms of legal powers and purposes, between the organization and its member states

3. The existence of legal powers exercisable on the international plane and not solely within the national system of one or more states

Q: May individuals assume the status of subjects of international law? A: Yes, but on the basis of the agreement by states and in specific context, not in accordance with general or customary international law.

HOLY SEE v. ROSARIO (1994)

Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See. Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause.



According to the Permanent Court of International Justice, the forerunner of the International Court of Justice by taking up the case of one of its subjects and by reporting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights its right to ensure, in the person of its subjects, respect for the rules of international law.

Objects of international law Q: What is an object of international law? A: An Object is a person or thing in respect of which rights are held and obligations assumed by the Subject. Thus, it is not directly governed by the rules of international law. There is no direct enforcement and accountability. An intermediate agencythe Subjectis required for the enjoyment of its rights and for the discharge of its obligations. Q: Distinguish subjects from objects of international law. A: SUBJECTS OF INTENATIONAL

LAW OBJECTS OF INTENATIONAL

LAW Entity that has rights and responsibilities

Person or thing in respect of which rights are held and obligations assumed by the subject

Has international personality that it can directly assert rights and can be held responsible under the law of nations

Not directly governed by the rules of international law

It can be a proper party in transactions involving the application of the law of nations among members of international communities

Its rights are received and its responsibilities imposed indirectly through the instrumentality of an intermediate agency

STATE

Q: What is a state? A: A state is a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an external government of which the great body of inhabitants render habitual obedience. It is a community of persons (people), more ore less numerous, permanently occupying a fixed portion of the surface of the earth (territory) having a government,

organized for poltiical end where majority of the inhabitants render habitual obedience (sovereignty). Q: Distinguish state from nation. A:

STATE NATION A legal concept Ethnic or racial concept NOTE: There may be one state with many nations. E.g. Arab Nations There may be several states with one nation. E.g. United States of America Q: What are the capacities associated with legal personality of States? A: These include:

1. capacity to make international agreements 2. to engage in privileges and immunities with respect

to national jurisdictions 3. capacity to bring claims in cases of breach of

international laws Q: Can the comfort woman and their descendant assert individual claims against Japan? A: No. The sovereign authority of the state to settle claims of its nationals against foreign countries has repeatedly been recognized. This may be made without the consent of the nationals or even without consultation with them. Since the continued amity between the State and other countries may require a satisfactory compromise of mutual claims, the necessary power to make such compromise has been recognized. The settlement of such claims may be made by executive agreement. Q: What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his cause? A: Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. "By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the person of its subjects, respect for the rules of international law."



Elements of State

Q: What are the elements of a state? A:

1. People an aggregate of individuals of both sexes (for perpetuity), who live together as a community despite racial or cultural differences (permanent population).

2. Territory fixed portion of the earths surface which the inhabitants occupy (defined territory).

3. Government it is the agency through which the will of the state is formulated, expressed and realized. NOTE: The Principal is the State while the Government is the Agent.

4. Independence/sovereignty the power of a state to manage its external affairs without direction or interference from another state (capacity to enter into relations with other States.

Q: What are the other suggested elements of the State? A:

1. Civilization 2. Recognition

Q: How is the status of an entity as a State accepted by other States? A: It is through recognition which is the act by which another State acknowledges that the political entity recognized possesses the attributes of statehood.

Effect of Recognition Q: What is the effect of such recogniton? A:

1. Constructive School- it consittutes or creates the status of a State as a subject of law and thus gives it a legal personality;

2. Declaratory status- recognition merely confirms the accepatance by States of the status of an entity as a State. NOTE: The prevailing view is that recognition is not an element of statehood (Magallona, p. 41, 2005).

Q: Is there a duty to recognize a state?

A: No. It is a public act of the State and is optional and political act and there is no legal duty in this regard. Q: Does admission of a State into the UN signify recognition? A: Yes.

Article 4 (1) of the UN Charter Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council. Thus, admission to membership signifies acceptance of status as a state for the purposes of international law.

VATICAN AS A STATE Q: Is Vatican a State? A. Yes. In the case of Holy See v. Rosario the SC noted that the Lateran Treaty between Italy and the Pope established the Statehood of the Vatican 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. NOTE: 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". From the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. 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, it 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. Indeed, its world-wide interests and activities are such as to make it in a sense an "international state". It was noted 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. Since the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person.

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. This appears to be the universal practice.

PEOPLE It is a group of individuals, both sexes, living together as a community. They must be sufficient in number to maintain and perpetuate themselves. A causal gathering (stranded), or society of pirates would not constitute a state. Q: What are the different Meanings of People as used in the Constitution? A:

1. Inhabitants1 2. Electors2 3. Citizens3 4. Sovereign 4

Q: Give examples of groups of people which cannot comprise a State. A:

1. Amazons - not of both sexes; cannot perpetuate themselves

2. Pirates - considered as outside the pale of law, treated as an enemy of all mankind; "hostis humani generis"

TERRITORY

Q: What is territory? A: The fixed portion of the surface of the earth inhabited by the people of the State. It is the fixed portion on the surface of the Earth on which the State settles and over which it has supreme authority.

1 Article II, Section 15, 16; Article III, Section 2; Article XIII, Section 1 2 Article VII, Section 4; Article XVI, Section 2; Article XVIII, Section 25 3 Article II, Section 4; Article III, Section 7. 4 The people organized collectively as a legal association is the state which sovereignty resides. Preamble; Article II, Section 1.

Q: Is the size relevant? A: No. It is irrelevant. The territory must not be too big as to be difficult to administer and defend; but must not be too small as to unable to provide for peoples needs. NOTE: The importance of State territory lies in the fact that it is the space within which the state exercises supreme authority. Q: Is nomadic tribe a State? A: No. Q: What comprises the Philippine Archipelago? A:

Article 1, 1987 Constitution

Article 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the sea bed, the subsoil, the insular shelves, and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. NOTE: This second sentence of Article I is not the Archipelago Doctrine. This is only our restatement/reaffirmation of our adherence to the Archipelago Doctrine simply because we are an archipelago consisting of 7,107 islands. It is essential for our national survival that we adhere to the archipelago principle. Q: What are the components of the national territory? A: 1. Terrestrial Domain 2. Maritime Domain 3. Aerial Domain

Terrestrial Domain

Q: What is terrestrial domain? A: It is the land mass on which people live. It may be integrate, as in the case of Iran, or dismembered as in the case of the United States, or it may be partly bounded by water like Burma, or completely surrounded like Iceland, or may consist of several islands like the Philippine archipelago. NOTE: It includes all the lands and internal waters. Q: What comprises of the internal waters?



A: It refers to bodies of water within the land mass, such as rivers, lakes, canals, gulfs, bays and straits. The UNCLOS defines internal waters as all waters on the landward side of the baselines of the territorial sea. NOTE: They are those which do not form part of the maritime domain. (e.g. rivers, lakes, canals, ports and harbors) Q: May foreign vessel enter into the ports and harbors of state invoking the right of innocent passage? A. No. The right of innocent passage may only be invoked by foreign vessel when traversing territorial sea which is a part of maritime domain. What may be invoked is the right of arrival under distress Q: What is a man of war? A: Man of War refers to naval vessels/ submarines, which may invoke the right of innocent passage provided that they navigate on the surface of the water and display their flags.

The Right of Innocent Passage

Q: What is the right of innocent passage? A: Innocent passage means the right of continuous and expeditious navigation of a foreign ship through the territorial sea of a State for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility. The passage is innocent as long as it is not prejudicial to the peace, good order or security of coastal State. Navigation through the territorial sea of a State for the purpose of traversing that sea without entering internal waters, or of proceeding to internal waters, or making for the high seas from internal waters, as long as it is not prejudicial to the peace, good order or security of the coastal state. Q: What is the right of transit passage? A: It has the same concept with the right of innocent passage. The only difference between the two rights is that the right of innocent passage may be invoked in case of passage through a strait (strait is a narrow body of water separating 2 major islands).

Arrival under stress

Arrival under stress or involuntary entrance may be due to lack of provisions, unseaworthiness of the vessel, inclement weather, or other case of force majeure, such as pursuit by pirates.

Maritime domain

It consists of the bodies of water within the land mass and the waters adjacent to the coasts of the state up to a specific territorial sea.

Regime of the Territorial Sea

Q: What is the so-called regime of territorial sea? A: Defined according to what we call historic right or treaty limits theory, all the non-internal waters delineated by latitudes and longitudes specified in Article III of the Treaty of Paris of December 20, 1898, between the US, are territorial in character. They have been regarded by the rest of the world since Spain claimed them as such after its discovery of the Philippines in 1521 and such recognition has vested historic right in the US as successor in interest, to such territorial seas. NOTE: Under the UNCLOS, the territorial sea has a uniform with of 12 miles measured from the low-water mark of the coast. 1. Territorial Sea

12 nautical miles from the shore beginning from the low water mark5;

Comprises the marginal belt adjacent to the land area or the coast includes generally the bays, gulfs, and straits which do not have character of historic waters6

Area where a foreign state may exercise its right of innocent passage

2. Contiguous Zone (24-Nautical Miles Contiguous Zone)

Extends up to 24 nautical miles from the shore beginning from the low water mark or territorial sea.

Importance: (a) to prevent infringement of the States fiscal, immigration or sanitary laws within its territory or its territorial sea; (b) to punish such infringement

Accordingly, the coastal state may exercise limited jurisdiction over the contiguous zone, to prevent infringement of customs, fiscal, immigration or sanitary laws.

3. Exclusive Economic Zone (200-Mile EEZ or the

Patrimonial Sea)

200 nautical miles from the shore beginning from the low water mark or the baselines

5 Low water mark is the mark of water on the shore at low tide 6 Historic waters are legally part of internal waters of the State



The State has the exclusive jurisdiction to exploit the natural resources in seabed, subsoil, or other submarine areas. So that if the coastal State was notable to exploit the natural resources, foreign states may not exploit the same.

Q. What is the reason why the measurement shall start from the low water mark? A. If the measurement will start from high tide, the territorial sea, contiguous zone and exclusive economic zone will recede. The result will be the area of the international waters will be wider. Thus the Philippines cannot exercise dominion over it. 4. Continental Shelf

Comprises 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 the distance of 200 nautical miles beyond the baselines from which the breadth of the territorial sea is measured if the edge of the continental margin does not extend up the distance.

5. High Seas

Is res commones open to: a. Navigation b. Fishing c. Scientific research and exploration d. Mining e. Laying of submarine cables or pipelines f. Other human activities in the open sea and

ocean floor This is also treated as res communes or res nullius, and thus, are not territory of the any particular state. The traditional view is freedom of the high seas- they are open and available, without destruction, to the use of all States for the purpose state above. Q: What is the Freedom of Navigation? A: It is the right to sail ships on seas which is open to all States and land-locked countries. G.R.: Vessels sailing on the high seas are subject only to the international law and law of the flag state XPNS:

a) Foreign merchant ships violating the laws of a coastal State;

b) Pirate ships;

c) Slave trade ships, any ship engage in unauthorized broadcasting; and

d) Ships without nationality, or flying a false flag or refusing to show its flag when required to do so.

Q: What is Flag State? A: State whose nationality (Ships registration) the ship possesses, for its nationality which gives the right to fly countrys flag

Doctrine of Hot Pursuit

Q: What is the Doctrine of Hot Pursuit? A: The pursuit of a foreign vessel undertaken the coastal State which has good reason to believe that the ship has violated the laws and regulations of that State provided that the following elements are present:

1. Pursuit commences from internal water, territorial

sea, contiguous zone of the pursuing State, and may not be continued outside if the pursuit has not been interrupted;

2. It is continuous and unabated; 3. Pursuit conducted by a warship, military aircraft, or

government ships authorized for the purpose Thus, if an offense is committed by a foreign merchant vessel within the territorial waters of the coastal state, its own vessels may pursue the offending vessel into the open sea and upon capture bring it back to its territory for punishment. Yet, to be lawful, the pursuit must have begun before the offending vessel has left the territorial sea, or the contiguous zone of the coastal state; the pursuit must be continuous and unabated; and it ceases as soon as the ship being pursued enters the territorial sea of its own or of a third state. Q: When does the pursuit ceases? A. The pursuit ceases when as soon as the foreign ship being pursued enters the territorial sea of its own or that of a third State. Q: Distinguish the flag state and the flag of convenience A. Flag state means a ship has the nationality of the flag of the state it flies, but there must be a genuine link between the state and the ship (Article 91 of the Convention on the Law of the Sea). Flag of convenience refers to a state with which a vessel is registered for various reasons such as low or non-existent taxation or low operating costs although the ship has no genuine link with the state.



United Nations Convention on the Law of the Seas

It changes the extent of territorial seas from 3 nautical miles to 12 nautical miles from the shore of the sea beginning from the low water mark. Q: What is the 3 Nautical Miles Limit Rule? A: It is also known as the CANON SHOT RULE because it is the maximum effective range of a canon during the time before the UNCLOS was held.

Aerial Domain Q: What is Air Space? A: It is the airspace above the high seas is open to all aircraft, just as the high sea is accessible to ships of all States. The State whose aerial space is violated can take measure to protect itself, but it does not mean that the States have unlimited right to attack the intruding aircraft. It is the airspace above the territorial domain and the maritime and fluvial domain of the state, to an unlimited altitude but not including outer space. Q: May foreign aircraft pass Philippines aerial domain invoking the right of innocent passage? A: No. Every State has the exclusive jurisdiction over its aerial domain. There is no such right as innocent passage in aerial domain. There must be treaty/agreement allowing such passage.

THE OUTER SPACE

The rules governing high seas also apply to outer space, which is considered as res communes. States have the right to launch satellites in orbit over the territorial air space of the other state. Q: Who owns the outer space? A: It is res commones. NOTE: ASTRONAUTS are ambassadors of humankind under the theory that there are other beings in outer space. Thus every State has liability to render assistance to an astronaut under distress.

The Outer Space Treaty Outer space is free for exploration and use by all States; it cannot be annexed by any State; and it may be used exclusively for peaceful purposes. Thus, nuclear weapons of

mass destruction may not be placed in orbit around the earth. Q: What are the different modes of acquisition of territory? 1. Discovery and occupation of a territory not subject to the

controversy of any other State;7 2. Prescription by which title is acquired by effective or

occupation over a period of time;8 3. Cession which is the transfer territory by treatyl9 4. Conquest10 5. Accretion which is the natural process of land formation

resulting in the increase of territory. 11

Discovery and Occupation

Q: What is the Doctrine of Effective Occupation? A: Under this doctrine, discovery alone is not enough. Mere discovery gives only an inchoate right to the discoverer. For title to finally vest, discovery must be followed by effective occupation in a reasonable time and attestation of the same. It is the effective exercise of sovereignty over a territory which is terra nullius or not under the sovereignty of another state. Accordingly, the nationals of the discovering state, in its name or by its authority, must first take possession of the territory. Thereafter, they must establish thereon an organization or government capable of making its laws respected. Q: What is effective occupation? A: It means continued display of authority which involves 2 elements:

1. Intention and will to act as sovereign; 2. Some actual exercise or display of such authority.

NOTE: Discovery alone merely creates an inchoate right; it must be followed by occupation.

Prescription It is the acquisition of sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it

7 Discovery and Occupation which are terra nullius (land belonging to no one) 8 Prescription; Territory may also be acquired through continuous and uninterrupted possession over a long period of time. 9 Cession by Treaty; Examples are Treaty of Paris, treaty between France and US ceding Louisiana to the latter and treaty between Russia and US ceding Alaska to the latter 10 Conquest or Subjugation (conquistadores)this is no longer recognized, inasmuch as the UN Charter prohibits resort to threat or use of force against the territorial integrity or political independence of any state 11 Accretion; It is the increase in the land area of the State, either through natural means, or artificially, through human labor.



during such period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with the international order. Q: For prescription to set in, what is the period required by the law? A: In international law, there is no rule of thumb as to the length of time for acquisition of territory through prescription. In this connection, consider the Grotius Doctrine of immemorial prescription, which speaks of uninterrupted possession going beyond memory. Q: What are the 2 parts of the national territory? A: 1. The Philippine archipelago with all the islands and waters

embraced therein; and 2. All other territories over which the Philippines has

sovereignty or jurisdiction

Cession

It is a bilateral mode of acquisition, the other modes being unilateral. It is derivative mode since its validity depends on the valid title of the ceding state; the cessionary state cannot have more rights than what the ceding state possessed. Cessation may be voluntary, through a treat of sale or treaty of donation. Cessation may also be involuntary or forced.

Conquest

This mode of acquisition is no longer recognized, inasmuch as the UN Charter prohibits resort to threat or use of force against the territorial integrity or political independence of any State. Thus, under the Stimson Doctrine, which forbade recognition of any government set up through external aggression, conquest was not considered as a valid mode of acquiring territory.

The Stimson Doctrine

The policy of expansionism in China pursued by the autonomous Kwangtung Army of Japan accelerated in the late 1920s and early 1930s and became a major concern of the U.S. Government. On September 18, 1931, Japanese soldiers guarding the South Manchurian Railway blew up part of the track in order to manufacture an excuse to seize Manchuria proper. Secretary of State Henry L. Stimson reacted to what he regarded as a violation of international law as well as treaties that the Japanese Government had signed. Since calls for a cessation of hostilities between China and Japan failed and President Herbert Hoover had rejected economic sanctions in principle, Stimson declared in January

1932 that the U.S. Government would not recognize any territorial or administrative changes the Japanese might impose upon China. The Stimson Doctrine was echoed in March 1932 by the Assembly of the League of Nations, which unanimously adopted an anti-Japanese resolution incorporating virtually verbatim the Stimson Doctrine of non-recognition. However, as the Secretary of State later realized, he had at his disposal only "spears of straws and swords of ice." In short order, Japanese representatives simply walked out of the League, and the Kwangtung Army formalized its conquest of Manchuria by establishing the puppet state of Manchukuo under former Chinese emperor Pu-Yi. When war between Japan and China broke out following a minor clash between military units at the Marco Polo Bridge in 1937, the impotence of the "Stimson Doctrine" became even more apparent. In other words, this document basically said that the US was not to recognize any administrative or territorial changes that Japan imposed upon China. This was also recognized when speaking of the Soviet Union taking over three Baltic countries. It was the idea of forced expansionism prevention.

Accretion This is the increase in the land area of the State, either through natural means or artificially through human labour. The Sector Principle, applied in the Polar region of the Arctic and Antartica.

Sector Principle

The principle on which claims to territory in the Arctic and Antarctic are made. The territory is shared out in the form of arbitrary sectors, each one having an apex at the poles and including an outer area bounded by the coast. The principle has worked well in establishing control of the Arctic ice, but there are disputed claims over the land mass of the Antarctic which may possibly yield mineral resources.

Philippine Archipelago

1. Treaty of Paris, December 10, 1898 Cession of the Philippine Islands by Spain to the United States;

2. Treaty between Spain and US at Washington, November 7, 1900inclusion of Cagayan, Sulu and Sibuto;

3. Treaty between US and GB, January 2, 1930inclusion of Turtle and Mangsee Islands

Q: What are the other territories over which the Philippines has sovereignty or jurisdiction? A:

1. Batanes(1935 Constitution);



2. Those contemplated under Article I, 1973 Constitutionbelonging to the Philippines by historic right or legal title;

3. PD 1596, June 11, 1978-- constituting the Spratlys Group of Islands as a regular municipality claiming it the Municipality of Kalayaan, placing it under the Province of Palawan

Archipelagic Doctrine

Q: What is the Archipelagic Doctrine? A: It emphasizes the unity of the land and waters by defining an archipelago as group of islands surrounded by waters or a body of waters studded with islands. Accordingly, all the waters around, between and connecting the island of the archipelago, regardless of their breadth or dimension, are to be treated as internal waters. Note: An imaginary single baseline is drawn around the islands by joining appropriate points of the outermost islands of the archipelago with straight lines and all islands and waters enclosed within the baseline form part of its territory. Correlate this doctrine to right of innocent of passage, right of arrival under stress and UNCLOS requiring the designation of archipelagic seaways so that foreign vessels may pass through an archipelago. Q: What are the purposes of this doctrine? A:

a. Territorial Integrity b. National Security c. Economic reasons

It is said that the purpose of archipelagic doctrine is to protect the territorial integrity of the archipelago. Without it, there would be pockets of high seas between some of our islands and islets, thus foreign vessels would be able to pass through these pockets of seas and would have no jurisdiction over them.

The Spratlys Group of Islands

Q: Do you consider the Spratlys Group of Islands as part of Philippine Archipelago? A. Spratlys Group of Islands is not part of the Philippine Archipelago because it is too far away from the three main islands of the Philippines. It is found, geographically, almost in the middle of the South China Sea. It is not part of the Philippine Archipelago. Historically, when we talk about Philippine Archipelago, we refer to those islands and waters that were ceded by the Spain to the United States by virtue of

Treaty of Paris in 1898. And that did not include the Spratlys Group of Islands yet. Under the treaty, the islands that were ceded by Spain were identifiedthe main islandsLuzon, Visayas and Mindanao. Clearly, it did not include the Spratlys Group of Islands. Spratlys Group of Islands was only discovered sometime in the 1950s by a Filipino, Tomas Cloma. The latter waived his rights over the islands in favor of the Philippine Government. In effect, the government stepped into the shoes of the discoverer. By then President Marcos, what he did the moment Tomas Cloma waived his rights over the Spratlys Group of Islands, is to have the islands immediately occupied by Philippine troops. He then issued PD 1596, constituting the Spratlys Group of Islands as a regular municipality claiming it the Municipality of Kalayaan placing it under the Province of Palawan. And then he had the elections immediately held in the islands so from that time on until now, we continue to hold elections there. The Philippine exercises not only jurisdiction but also sovereignty over the Spratlys Group of Islands, yet it is not part of the Philippine Archipelago. Geographically, it is too far away from the Philippine Archipelago. On May 20, 1980, the Philippines registered its claim with the UN Secretariat. The Philippine claim to the islands is justified by reason of history, indispensable need, and effective occupation and control. Thus, in accordance with the international law, the Spratlys Group of islands is subject to the sovereignty of the Philippines. Q: Do you consider the Spratlys group of Islands as part of our National Territory? A. Yes. Article I of the Constitution provides: The national territory comprises the Philippine archipelago, x x x, and all other territories over which the Philippines has sovereignty or jurisdiction, x x x. The Spratlys Group of islands falls under the second phrase and all other territories over which the Philippines has sovereignty or jurisdiction. It is part of our national territory because Philippines exercise sovereignty (through election of public officials) over Spratlys Group of Islands. Q: What was the basis of the Philippines claim over the Spratlys? A. Through discovery of Tomas Cloma and occupation.

SOVEREIGNTY Q: What is sovereignty? A: It is the supreme legal authority in relation to the subjects within its territorial domain.



It means freedom from outside control in the conduct of its foreign and internal affairs. NOTE: In the international sphere, there is the co-existence of sovereignties under the conditions of independence and equality. The sovereignty of one State ends where the sovereignty of another State begins. Q: How then is state sovereignty defined in international law? A: It is the right to exercise in a definite portion of the globe the functions of a state to the exclusion of any other State. NOTE: It is important to view sovereignty in international law as the sovereignty of one State in relation to the sovereignty of another State in conditions of co-existence. Sovereignty in relations between states signifies independence. Q: What are the kinds of sovereignty? A:

a. Legal- sovereignty is the authority which has the power to issue final commands. In our country, the Congress is the legal sovereign.

b. Political- Sum total of all the influences of a State, legal and non-legal which determine the course of law

c. Internal- It refers to the power of the State to control its domestic affairs. It is the supreme power over everything within its territory.

d. External- Also known as Independence; which is freedom from external control. It is the power of State to direct its relations with other States

Q: What are the characteristics of sovereignty?PI3A A:

1. permanent, 2. exclusive, 3. comprehensive, 4. absolute, 5. indivisible, 6. inalienable, and 7. imprescriptible

NOTE: These characteristics are only true in DOMESTIC SPHERES but NOT in with respect to INTERNATIONAL LAW. Q: Distinguish sovereignty vs. dominion. A:

SOVEREIGNTY DOMINION

Sovereignty is the right to exercise the functions of a State to the exclusion of any other State. It is often referred to as the power of imperium, which is defined as the government authority possessed by the State.

Dominion, or dominium, is the capacity of the State to own or acquire property such as lands and natural resources.

Q: Is sovereignty absolute? A: While sovereignty has traditionally been deemed absolute and all encompassing on the domestic level, it is subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the Family of Nations. Q: What are the limitations of the sovereignty? A: So these are the limitations of the sovereignty in the field of international relations:

1. limitations brought about by the entry into treaties with other states;

2. limitations brought about by joining the Family of Nations (Taada vs. Angara GR. No. 118295 May 1997)

NOTE: The Constitution does not envision a hermit type isolation of the country from the rest of the world.

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.

The constitutional policy of a "self-reliant and independent national economy" does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither "economic seclusion" nor "mendicancy in the international community" (Taada vs. Angara GR. No. 118295 May 1997).

Pacta Sunt Servanda Q: What is the principle of pacta sunt servanda? A: The 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 a valid international agreement is bound to make in its legislation such modification as may be necessary to ensure fulfillment of the obligation undertaken. Accordingly, States may not advance the provisions of their own Constitution as well as the act of their own laws in order



not to comply with their obligations under a treaty. States are supposed to make the necessary modifications in their obligations under a treaty.

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 inherent nature, treaties really limit or restrict the absoluteness of sovereignty. 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. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute (Taada v. Angara).

Doctrine of Auto-Limitation Q: What is the doctrine of auto-limitation? A: It is the doctrine where the Philippines adhere to principles of international law as a limitation to the exercise of its sovereignty. Accordingly, we agreed to surrender some of our sovereign rights in exchange for greater benefits that we may derive by entering into treaties or by joining the Family of Nations.

NOTE: 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.

Lex posterior derogate priori Q: What is the doctrine of Lex posterior derogate priori? A: In States where the constitution is the highest law of the land, both statutes and treaties may be invalidated if they are in conflict with the Constitution (Secretary of Justice vs. Lantion, G.R. No. 139465, January 18, 2000).

EFFECTS OF CHANGE OF SOVEREIGNTY

Q: What are the effects in Change of Sovereignty? A: Political laws are abrogated; municipal laws remain in force Illustration: When the Spanish ceded the Philippines to the US under the Treaty of Paris (December 10, 1989) The effect of the change of sovereignty of the former sovereign are not merely suspended but abrogated. During the American occupation, the Spanish Civil Code continued to take effect. The US did not modify it. Q: Give the effects of a change of sovereignty on municipal laws. A: 1. Laws partaking of a political complexion are abrogated automatically. 2. Laws regulating private and domestic rights continue in force until changed or abrogated. Q: What are the effects of Belligerent Occupation? A: No change in sovereignty. POLITICAL LAWS NON-POLITICAL

LAWS JUDICIAL

DECISIONS Suspended subject to revival under the principle of jus postilimini upon the end of the occupation;

Non affected: a. Non-political

laws are laws intended to govern the relations of individuals as among themselves;

b. Political laws are laws intended to govern the relations between the inhabitants and the state.

They are valid during the occupation and even beyond it, except those of political complexion, which is automatically annulled upon the restoration of the legitimate authority.

This applies only to civilians and not to members of the armed forces, except laws on treason because treason is a breach of



allegiance to the sovereign. Note: Since the political laws were merely suspended, they were subject to revival upon the return of the sovereign under the Doctrine of Jus Postiliminum. (post means beyond; limin means boundary)

Principle of State Continuity Q: What is the principle of State Continuity? A: It is the principle which states that the disappearance of any of the elements of statehood would cause the extinction of the State, but mere changes as to one or more of those elements would not necessarily, as a rule, bring about such extinction. Also, the identity of the State in international law is not affected by changes in the government, whether brought about legally or illegally by revolution or coup detat. Q: During the Japanese Occupation, was there a change in the sovereignty during such period (1941-1945)? A: No. The sovereignty over the country remained with the Americans because the Americans never ceded the Philippines to Japan. What the Japanese military occupants performed there were not sovereignty but acts of sovereignty. You have to distinguish between sovereignty itself and acts of sovereignty because the characteristics of sovereignty are absolute, indivisible, imprescriptible and comprehensive. Sovereignty over the Philippines remained in the Philippines although the ones that performed the acts of sovereignty were Japanese, the occupants.

Doctrine of Jus Postiliminum Q: What is the doctrine of Jus Postilliminum? A: It states that at the end of the occupation, when the occupant is ousted from the territory, the political laws which have been suspended shall automatically become effective again (Those taken beyond boundary will lose their status but will be regained upon return to its boundary.) NOTE: The rule that political laws are merely suspended does NOT APPLY to the members of the Armed Forces who remained subjects of Articles of War as the National Defense Act as well as the Articles of War, even during the Japanese occupation. Such rule applies only to the CIVILIANS in the occupied territory (Ruffy v. Chief of Staff). GR: Political laws were suspended during the Japanese occupation.

XPN: Law on TREASON (breach of allegiance to sovereign as shown by the external acts of giving aid to the enemies) although it is a specie of political law. It is a species of political law yet it remained valid and effective because it is a war offense Treason is an offense that can only be committed in times of war. What is really punished in treason is not the act of giving aid and comfort to the enemies in times of war. NOTE: As for judicial decisions the same are valid during the occupation and even beyond except those of a political complexion, which are automatically annulled upon the restoration of the legitimate authority. Only those decisions of political complexion automatically fall to the ground upon the return of the US (for example) but in common crimes like rape, robbery, kidnapping, judgment remains valid even if they were rendered in a Japanese created court. Q: What is the effect of change of sovereignty when the Spain ceded the Philippines to the U.S.? A: The effect is that the political laws of the former sovereign are not merely suspended but abrogated. As they regulate the relations between the ruler and the ruled, these laws fall to the ground ipso facto unless they are retained or re-enacted by positive act of the new sovereign. Non-political laws, by contrast, continue 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. Q: What is the effect of Japanese occupation to the sovereignty of the U.S. over the Philippines? A: Sovereignty is not deemed suspended although acts of sovereignty cannot be exercised by the legitimate authority. Thus, sovereignty over the Philippines remained with the U.S. although the Americans could not exercise any control over the occupied territory at the time. What the belligerent occupant took over was merely the exercise of acts of sovereignty. Q: Distinguish between Spanish secession to the U.S. and Japanese occupation during WWII regarding the political laws of the Philippines. A: There being no change of sovereignty during the belligerent occupation of Japan, the political laws of the occupied territory are merely suspended, subject to revival under jus postliminiumupon the end of the occupation. In both cases, however, non-political laws, remains effective. Q: Was there a case of suspended allegiance during the Japanese occupation?



A: None. Adoption of the theory of suspended allegiance would lead to disastrous consequences for small and weak nations or states, and would be repugnant to the laws of humanity and requirements of public conscience, for it would allow invaders to legally recruit or enlist the quisling inhabitants of the occupied territory to fight against their own government without the latter incurring the risk of being prosecuted for treason. To allow suspension is to commit political suicide.

Effect of Revolutionary Government Q: What is the effect of a revolutionary government? A: It is bound by no constitution. However, it did not repudiate the Covenant or Declaration in the same way it repudiated the Constitution. As the de jure government, the revolutionary government could not escape responsibility for the States good faith compliance with its treaty obligations under international law. During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by government officers did not exceed the authority granted them by the revolutionary government. The directives or orders should not have also violated the Covenant or the Declaration.

JURISDICTION Q: What is Jurisdiction? A: Jurisdiction is the manifestation of sovereignty. The jurisdiction of the state is understood as both its authority and the sphere of the exercise of that authority. Q: What are the kinds of jurisdiction? A:

1. Territorial jurisdiction- authority of the state to have all persons and things within its territorial limits to be completely subject to its control and protection

2. Personal jurisdiction- authority of the state over its nationals, their persons, property, and acts whether within or outside its territory (e.g. Art. 15, CC)

3. Extra-territorial jurisdiction- authority of the State over persons, things, or acts, outside its territorial limits by reason of their effect to its territory

Q: What are the exemptions to the territorial jurisdiction rule? A: Q: Distinguish between sovereignty from independence? A: Exempt are:

1. Foreign states, heads of state, diplomatic representatives, and consuls to a certain degree;

2. Foreign state property, including embassies, consulates, and public vessels engaged in non-commercial activities;

3. Acts of state; 4. Foreign merchant vessels exercising the rights of

innocent passage or involuntary entry, such as the arrival under stress;

5. Foreign armies passing through or stationed in its territory with its permission

6. Such other persons or property, including organizations like the United Nations, over which it may, by agreement, waived jurisdiction

Q: Distinguish sovereignty and independence. A:

SOVEREIGNTY INDEPENDENCE

It is the supreme power of the state by which the State is governed.

It is the external manifestation of sovereignty, whereby the State is free from foreign control.

Internal and external

ACTS OF THE STATE

An act of state is done by the sovereign power of a country, or by its delegate, within the limits vested in him. It cannot be questioned or made the subject of legal proceedings in a court of law. Note: Within particular reference to Political Law, an act of State is an act done by the political departments of the government and not subject to judicial review. An illustration is the decision of the President, in the exercise of his diplomatic power, to extend recognition to a newly-established foreign State or government. Q: When is act of person considered State action covered by the Constitution? A: In constitutional jurisprudence, the act of persons distinct from the government are considered state action covered by the Constitution:

1. When the activity it engages in is a public function; 2. When the government is so significantly involved

with the private actor as to make the government responsible for his action; and

3. When the government has approved or authorized the action.



GOVERNMENT Forms of government

State is an abstract being that can only act through its agent. Since the government is a mere agent and the State is the principal, any good thing performed by the government is always attributable to the Sate. It must be organized, exercising control over and capable of maintaining law and order within the territory. It can be held internationally responsible for the acts of the inhabitants. The identity of the state is not affected by changes in the government. Q: What if the government performs an act that proves to be harmful to the people, will you attribute that to the State? A: No. The mandate of the State to the government, as the agent, is for the government to promote the welfare of the people; not to harm the people. In such a case, the government has defied its mandate. Consequently, there was a revolution, which came about upon the behest of the State itself because the agent is no longer true to its mandate. It came about upon the request if the state itself because the agent is no longer true to its mandate. This is actually the justification for revolutions. This development is known as Direct State Action. Q: Give the distinction between a government and administration? A: Government is the institution through which the state exercises power. Administration consists of the set of people currently running the institution. Q: Give the distinction between the presidential and parliamentary form of government? A: The presidential form of governments identifying feature is what is called the separation of powers. The essential characteristics of a parliamentary form of government are:

1. The members of the government or cabinet or the executive arm are, as a rule, simultaneously members of the legislature;

2. The government or cabinet consisting of the political leaders of the majority party or of a coalition, who are also members of the legislature, is in effect a committee of the legislature;

3. The government or cabinet has a pyramidal structure at the apex of which is the Prime Minister or his equivalent;

4. The government or cabinet remains in power only for so long as it enjoys the support of the majority of the legislature;

5. Both government and legislature are possessed of control devices which each can demand of the other immediate political responsibility. In the hands of the legislature is the vote of non-confidence (censure) whereby government may be ousted. In the hands of the government is the power to dissolve the legislature and call for new elections.

NOTE: In international law, the form of government does not really matter. Yet, with respect to the Constitution, the kind of government matters.

Article II Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

Functions of Government

Q: What are the functions of Government? A:

1. Governmental (Constituent)--are the compulsory functions which constitute the very bonds of society

Example: The definition and punishment of crimes, administration of justice in civil cases, administration of political duties, dealings of the state with foreign powers, determination of contractual rights between individuals, the regulation of transmission of property, keeping of order

2. Proprietary (Ministerial)optional functions of the government for achieving a better life for the community

Example: Agrarian Reform- this is in reality a ministrant function but was made constituent by the constitution Note: Distinction of function is no longer relevant because the Constitution obligates the State to promote social justice and has repudiated the laissez faire policy. However, in Shipside Incorporated v. CA, the nature of the function of the BCDA was a factor to determine the locus standi of the Government.

Parents Patriae

Q: What is the doctrine of parents patriae? A: It posits that it is the government which acts as guardian of the rights of the people and may initiate legal actions for and in behalf of a particular individual. Q: Is Bases Conversion Development Authority (BCDA) exercising constituent or ministrant function?



A: While public benefit and public welfare, particularly, the promotion of the economic and social development of Central Luzon, may be attributable to the operation of the BCDA, yet it is certain that the functions performed by the BCDA are basically proprietary in nature. The promotion of economic and social development of Central Luzon, in particular, and the country's goal for enhancement, in general, do not make the BCDA equivalent to the Government. Other corporations have been created by government to act as its agents for the realization of its programs, the SSS, GSIS, NAWASA arid the NIA, to count a few, and yet, the Court has ruled that these entities, although performing functions aimed at promoting public interest and public welfare, are not government-function corporations invested with governmental attributes. It may thus be said that the BCDA is not a mere agency of the Government but a corporate body performing proprietary functions (Shipside Incorporated v. CA, G.R. No. 143377, February 20, 2001)

Vigilantism

Q: What is vigilantism? A: It is a situation wherein people take the law in their hands for the promotion of peace and order in the community. This is not allowed because it is a violation of the constituent function of the government. Q: What if the government performs an act that proves harmful to the people, will you attribute that to the state? A: No. The mandate of the state to the government, as its agent, is to promote the welfare of the people and not to harm them. State as an ethical being and an abstract concept cannot commit any wrong. Q: What is the mandate of the Philippine Government? A: Art. II, Sec. 4 - "The prime duty of the Government is to serve and protect the people" Thus, whatever good is done by government -attributed to the State; whatever harm is done by the government - attributed to the government alone, not the State

Effect of change of government Q: What is the effect of change of government? A: It is well settled that as far as the rights of the predecessor government are concerned, they are inherited in toto by the successor government. Regarding obligations, distinction is made according to the establishment of the new government.

The rule is that when the new government was organized by virtue of constitutional reform duly ratified in a plebiscite, the obligation of the replaced government are completely assumed by the former. Conversely, when the new government was established through violence, as by revolution, it may lawfully reject the purely personal or personal obligations of the predecessor government but not those contracted by but in ordinary course of official business.

De Jure and De Facto Government Q: Distinguish between a de jure and de facto government? A:

DE JURE DE FACTO A De Jure government (government of law) is a government that has a lawful title although it may not be in possession of the machinery of the state but the point is it has the lawful title.

De Facto government (government of fact) has no lawful title but it is in actual possession of the machinery of the state.

Q: What are the 3 kinds of de facto government? A: 1. By insurrection that which is established by the

inhabitants who rise in revolt against and depose the legitimate regime.

Example: the Commonwealth established by Oliver Cromwell which supplanted the monarchy under Charles I of England

2. By government of paramount force - that which is

established in the course of war by invading forces of one belligerent to the territory of other belligerent, the government of which is displaced. It is established by one belligerent in the course of war in the territory of the other belligerent which it was able to occupy and which was supported by its military might.

Example: The Japanese occupation in the government in the Philippines which replaced the Commonwealth during WW II. This is the one headed by President Jose Laurel. What belligerent was that? Japan. In the course of war in the territory of the other belligerentwhat was the other belligerent? The United States. What territory was that? The Philippines. Accordingly, the Philippines was still a colony of the US at that time under the Common wealth government headed by President Manuel Quezon who went to exile during the Second World War. He went on exile in Europe. It was a government in exile. In fact, it was in New York, USA



where President Quezon died. So he was succeeded by Osmea (Vice President). This is also the reason why when Mc Arthur returned to the Philippines, the Leyte landings of October 20, 1944, it was Osmea whos with him. In other words, there are 2 governments then. The Japanese-created led by President Laurel and the Commonwealth government led by President Quezon. The De Jure government was the commonwealth government-it has the lawful title but it was not in actual possession of the machinery of the State at that time it went to exile. The Japanese government was the de facto-a government in fact. It has no lawful title but at the time it was in actual possession of the machinery of the state.

3. By cession that which is established by the inhabitants

of a state who cedes there from the parent government without overthrowing the parent government.

Example: The confederate government during the American Civil War however did not seek to depose the union government. During the US Civil War of 1861-1865, the Southern states (whose economy was based on cotton) were opposed to the abolitionist policy of President Lincoln, the emancipation of the blacks of the Negros. If you emancipate the Negros who will work on their cotton fields. Thus, the separate from the American Union and organized the Confederate States of America. They elected their own President- Jefferson Davis. NOTE: The Common denominator of these 3 kinds of de facto governments is that they all lose. For while they were they are in possession of the machinery of the state but eventually they lost.

Documents

Hizon Notes - Public International Law