Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community for help and clear up your study doubts
Discover the best universities in your country according to Docsity users
Free resources
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
PIL -Pacific International Lines. ... The fraudulent website : www.pacificinternationalline.com, is not affiliated with PIL. Please refrain from accessing or providing ...
Typology: Study Guides, Projects, Research
1 / 89
This page cannot be seen from the preview
Don't miss anything!
“Nam omnia praeclara tam difficilia quam rara sunt”
For all that is excellent and eminent is as difficult as it is rare
-Spinoza on Ethics
Definition Public v Private International Law Basis of Public International Law
DEFINITION OF Public International Law 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. Formerly known as “ law of nations ” coined by Jeremy Bentham in 1789.
Public International Law Distinguished From Private International Law/Conflict of Laws 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.
Public Private
As a rule, Private is national or municipal in character. Except when embodied in a treaty or convention, becomes international in character. It is a law, not above, but between, sovereign states and is, therefore, a weaker law. [Openheim – Lauterpacht, 38.]
Settlemen t of Dispute
Disputes are resolved through international modes of settlement –
Recourse is with municipal tribunals through local administrative and judicial
like negotiations and arbitration, reprisals and even war
processes.
Consists mainly from the lawmaking authority of each state.
Regulates the relations of individuals whether of the same nationality or not.
Responsib ility for violation
Infractions are usually collective in the sense that it attaches directly to the state and not to its nationals.
Generally, entails only individual responsibility.
BASIS OF PIL – 3 SCHOOLS OF THOUGHT [ Why are rules of international law binding? ]
posterior derogat priori - a treaty may repeal a statute and a statute may repeal a treaty - will apply. But if these laws are found in conflict with the Constitution, these laws must be stricken out as invalid.
In states where the constitution is the highest law of the land, such as in ours, both statutes and treaties may be invalidated if they are in conflict with the constitution.
Supreme Court has the power to invalidate a treaty – Sec. 5(2)(a), Art. VIII, 1987 Constitution
Q: What is the doctrine of incorporation? How is it applied by local courts? Held: Under the doctrine of incorporation, 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.
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a 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 Incorporation Clause in Section 2, Article II of the Constitution. 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 of 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. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc [Melo])
Q: Is sovereignty really absolute and all- encompassing? If not, what are its restrictions and limitations?
Held: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda – international agreements must be performed in good faith. A 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.
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. 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. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban])
Doctrine of Transformation – 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. A reading of the case of Kuroda v Jalandoni, [GRN L-2662 March 26, 1949], one may say that Supreme Court expressly ruled out the Doctrine of Transformation when they declared that generally accepted principles of international law form a part of the law of our nation even if the Philippines was not a signatory to the convention embodying them, for our Constitution has been deliberately general and extensive in its scope
and is not cofined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.
Pacta Sunt Servanda International agreements must be performed in Good Faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the [arties. A state which has contracted a valid international obligation is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.
Tañada vs. Angara GRN 118295 May 2, 1997
While sovereignty has traditionally been deemed absolute and all encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly as a member of the family of nations. 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."
Concept of Sovereignty as Autolimitation 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 autolimitation.
Q: A treaty was concurred between RP and China. Later, a law was passed which has conflicting provisions with the treaty. Rule. A: A treaty is part of the law of the land. But as internal law, it would not be superior to a legislative act, rather it would be in the same class as the latter. Thus, the latter law would be considered as amendatory of the treaty, being a subsequent law under the principle lex posterior derogat priori. (Abbas vs. COMELEC)
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 IV. Judicial Decisions V. Teachings of authoritative publicists
A. Primary
I. Treaties or International Conventions – 2 KINDS:
★ Bilateral arrangements concerning matters of particular or special interest to the contracting parties ★ Source of “Particular International Law” ★ BUT: May become primary sources of international law when different contract treaties are of the same nature, containing practically uniform provisions, and are concluded by a substantial number of States EX.: Extradition Treaties
II. International Custom – Matters of international concern are not usually covered by international agreements and many States are not parties to most treaties; international custom remains a significant source of international law, supplementing treaty rules.
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
Nicaragua Case. The status of a principle as a norm of international law may find evidence in the works of highly qualified publicists in international law, such as McNair, Kelsen or Oppenheim.
Subject Defined Object Defined 2 Concepts of Subjects of International Law State as Subjects of International Law Elements of a State
Subject Defined 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.
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. Objects Defined 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 agency—the Subject—is required for the enjoyment of its rights and for the discharge of its obligations.
2 Concepts:
The STATE as subject of International Law State is a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which the great body of inhabitants render habitual obedience.
Q: The Japanese government confirmed that during the Second World War, Filipinas were among those conscripted as “comfort women” (prostitutes) for Japanese troops in various parts of Asia. The Japanese government has accordingly launched a goodwill campaign and offered the Philippine government substantial assistance for a program that will promote through government and non-governmental organization women’s rights, child welfare, nutrition and family health care. An executive agreement is about to be signed for that purpose. The agreement includes a clause whereby the Philippine government acknowledges that any liability to the comfort women or their descendants are deemed covered by the reparations agreements signed and implemented immediately after the Second World War. Julian Iglesias, descendant of now deceased comfort woman, seeks you advise on the validity of the agreement. Advise him. (1992 Bar) A: The agreement is valid. The comfort woman and their descendant cannot assert individual claims against Japan. As stated in Paris Moore v. Reagan, 453 US 654, 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? Held: 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 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.” (The Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]) (Holy See, The v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc [Quiason])
Q: What is the status of an individual under public international law? (1981 Bar) A: According to Hanks Kelson, “while as a general rule, international law has as its subjects states and obliges only immediately, it exceptionally applies to individuals because it is to man that the norms of international law apply, it is to man whom they restrain, it is to man who, international law thrusts the responsibilities of law and order.”
Q: Is the Vatican City a state? A: YES!
Holy See v****. Rosario [GR 101949, 01 Dec. 1994]
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
A: Determines the area over which the State exercises jurisdiction ★ Nomadic tribe not a State
Q: What comprises the Philippine Archipelago? A: §1, Article 1, 1987 Philippine Constitution.
“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 seabed, 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.”
Q: The provision deleted the reference to territories claimed “by historic right or legal title.” Does this mean that we have abandoned claims to Sabah? A: NO! This is not an outright or formal abandonment of the claim. Instead, the claim was left to a judicial body capable of passing judgment over the issue
★ The definition covers the following territories:
Q: What is the basis of the Philippine’s claim to a part of the Spratlys Islands? (2000 Bar) A: The basis of the Philippine claim is effective occupation of a territory not subject to the sovereignty of another state. The Japanese forces occupied the Spratly Islands Group during the Second World War. However, under the San Francisco Peace Treaty of 1951, Japan formally renounced all right and claim to the Spratlys. The San Francisco Treaty or any other international agreement, however, did not designate any beneficiary state following the Japanese renunciation of right. Subsequently, the Spratlys became terra nullius and was occupied by the Philippines in the title of sovereignty. Philippine sovereignty was displayed by open and public occupation of a number of islands by stationing
military forces, by organizing a local government unit, and by awarding petroleum drilling rights, among other political and administrative acts. In 1978, it confirmed its sovereign title by the promulgation of Presidential Decree No. 1596, which declared the Kalayaan Island Group part of Philippine territory.
C. Government – ★ the agency or instrumentality through which the will of the State is formulated, expressed and realized ★ 2 KINDS:
EX. the Commonwealth established by Oliver Cromwell which supplanted the monarchy under Charles I of England
b) By government of paramount force
EX. the Japanese occupation government in the Philippines which replaced the Commonwealth government during WWII
c) By secession – that which is established by the inhabitants of a state who cedes therefrom without overthrowing its government
EX. the confederate government during the American Civil War which, however, did not seek to depose the union government
Q: Is the Cory Aquino Government a de facto or de jure government? A: De Jure! While initially the Aquino Government was a de facto government because it was established thru extra-constitutional measures, it nevertheless assumed a de jure status when it subsequently recognized by the international community as the legitimate government of the Republic of the Philippines. Moreover, a new Constitution was drafted and overwhelmingly ratified by the Filipino people and national elections were held for that purpose. [Lawyers League for a Better Philippines v. Aquino, G.R. No. 73748 (1986)]
★ The Cory government won! All de facto governments lost in the end!
★ 2 Functions:
Examples: (a) Keeping of order and providing for the protection of persons and property from violence and robber; (b) Fixing of legal relations between spouses and between parents and children; (c) Regulation of the holding, transmission, and interchange of property, and the determination of liabilities for debt and crime; (d) Determination of contractual relations between individuals; (e) Definition and punishment of crimes (f) Administration of justice in civil cases; (g) Administration of political duties, privileges, and relations of citizens; (h) Dealings of the States with foreign powers
Examples: (a) Public works; (b) Public charity; (c) Regulation of trade and industry
Q: Is the distinction still relevant? A: No longer relevant!
ACCFA v. CUGCO [30 SCRA 649]
Constitution has repudiated the laissez faire policy
Constitution has made compulsory the performance of ministrant functions.
Examples: Promote social justice; Land reform Provide adequate social services
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
Harm justifies the replacement of the government by revolution – “ Direct State Action ”
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 manner of the establishment of the new government.
The rule is that where the new government was organized by virtue of a constitutional reform duly ratified in a plebiscite, the obligations of the replaced government are also completely assumed by the former. Conversely, where the new government was established through violence, as by a revolution, it may lawfully reject the purely personal or political obligations of the predecessor government but not those contracted by it in the ordinary course of official business.
Summary: A. Change of Government by Constitutional Reform ★ The new government inherits all the rights and obligations of the former government
B. Change by Extra-Constitutional Means ★ Rights – all are inherited; ★ Obligations – distinguish: ★ Contracted in the regular course of business – Inherited;
EX.: Payment of postal money orders bought by an individual
★ Purely Personal/Political Obligations – Not bound! May reject! EX.: Payment for arms bought by old government to fight the rebels
★ Thus, AFP members still covered by National Defense Act, Articles of War, etc. (Ruffy v. Chief of Staff) ★ Rule applies only to civilians
Civil Laws: GR: Remains in force XPN: Amended or superseded by affirmative act of belligerent occupant
Q: What happens to judicial decisions made during the occupation? A: Those of a Political Complexion – ★ automatically annulled upon restoration of legitimate authority ★ conviction for treason against the belligerent
Non-political ★ remains valid ★ EX.: Conviction for defamation
(a) Changed by the new sovereign (b) Contrary to institutions of the new sovereign
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 rules, 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 postliminium upon the end of the occupation. In both cases, however, non-political laws, remains effective.
Members of the armed forces are still covered by the National Defense Act, the Articles of War and other laws relating to the armed forces even during the Japanese occupation.
A person convicted of treason against the Japanese Imperial Forces was, after the occupation, entitled to be released on the ground that the sentence imposed on him for his political offense had ceased to be valid but not on non- political offenses.
Q: May an inhabitant of a conquered State be convicted of treason against the legitimate sovereign committed during the existence of belligerency? A: YES. Although the penal code is non-political law, it is applicable to treason committed against the national security of the legitimate government, because the inhabitants of the occupied territory were still bound by their allegiance to the latter during the enemy occupation. Since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or subject to his government or sovereign does not demand from him a positive action, but only passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of the preceding consideration, to repeal or suspend the operation of the law of treason.
Q: Was there a case of suspended allegiance during the Japanese occupation? A : None. Adoption of the petitioner's 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.
Q: Is sovereignty really absolute? A: In the domestic sphere – YES! In international sphere – NO!
Tañada, et al. vs. Angara, et al. [GR 118295, 02 May 1997]
While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations.
By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws.
One of the oldest and most fundamental rules in international law is pacta sunt servanda – international agreements must be performed in good faith.
A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties. By their inherent nature, treaties 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.
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, a state’s sovereignty cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture:
Limitations imposed by the very nature of membership in the family of nations; and Limitations imposed by treaty stipulations.
Thus, when the Philippines joined the UN as one of its 51 charter members, it consented to restrict its sovereign rights under the “concept of sovereignty as AUTO-LIMITATION.”
The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens.
Clearly, a portion of sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of... cooperation and amity with all nations.”
Principle of State Continuity
State is not lost when one of its elements is changed; it is lost only when at least one of its elements is destroyed. State does not lose its identity but remains one and the same international person notwithstanding changes in the form of its government, territory, people, or sovereignty. See Holy See vs. Rosario (238 SCRA 524)
From the moment of its creation, the State continues as a juristic being, despite changes in its elements. EX.: (1) Reduction of population due to natural calamity (2) Changes in territory However, the disappearance of any of the elements causes the extinction of the state.
Q: In the famous Sapphire Case, Emperor Louis Napoleon filed damage suit on behalf of France in an American Court, but he was deposed and replaced as head of State pendent elite. Was the action abated? (Bar) A: No, because it had in legal effect been filed by France, whose legal existence had not been affected by change in head of its government. Napoleon had sued not in his personal capacity but officially as sovereign of France. Hence, upon recognition of the duly authorized representative of the new government, the litigation could continue.
Fundamental Rights of States [ S P E E D ]
★ The most elementary and important right of a State ★ All other rights flow from this right ★ Recognized in the UN Charter, Article 51:
“Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN, until the SC has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self- defense shall be immediately reported to the SC and shall not in any way affect the
members of the terrorist group. Ali Baba threatened to repeat its terrorist acts against Country Y if the latter and its allies failed to accede to Ali Baba’s demands. In response, Country Y demanded that Country X surrender and deliver Bin Derdandat to the government authorities of Country Y for the purpose of trial and “in the name of justice.” Country X refused to accede to the demand of Country Y****.
What action or actions can Country Y legally take against Ali Baba and Country X to stop the terrorist activities of Ali Baba and dissuade Country X from harboring and giving protection to the terrorist organization? Support your answer with reasons. (2002 Bar)
A: (1) Country Y may exercise the right of self- defense, as provided under Article 51 of the UN Charter “until the Security Council has taken measure necessary to maintain international peace and security.” Self-defense enables Country Y to use force against Country X as well as against the Ali Baba organization.
(2) It may bring the matter to the Security Council which may authorize sanctions against Country X, including measure invoking the use of force. Under Article 4 of the UN Charter, Country Y may use force against Country X as well as against the Ali Baba organization by authority of the UN Security Council.
Alternative A: Under the Security Council Resolution No. 1368, the terrorist attack of Ali Baba may be defined as a threat to peace, as it did in defining the 11 September 2001 attacks against the United States. The resolution authorizes military and other actions to respond to terrorist attacks. However, the use of military force must be proportionate and intended for the purpose of detaining the persons allegedly responsible for the crime and to destroy military objectives used by the terrorists.
The fundamental principles of international humanitarian law should be respected. Country Y cannot be granted sweeping discretionary powers that include the power to decide what states are behind the terrorist organizations. It is for the Security Council to decide whether force may be used against specific states and under what conditions the force may be used.
Q: Is the United States justified in invading Iraq invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction? A: The United States is invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction. There is no evidence of such a threat, but Bush is probably
invoking the modern view that a state does not have to wait until the potential enemy fires first. The cowboy from Texas says that outdrawing the foe who is about to shoot is an act of self- defense.
Art. 51 says, however, that there must first be an “armed attack” before a state can exercise its inherent right of self-defense, and only until the Security Council, to which the aggression should be reported, shall have taken the necessary measures to maintain international peace and security. It was the United States that made the “armed attack” first, thus becoming the aggressor, not Iraq. Iraq is now not only exercising its inherent right of self-defense as recognized by the UN Charter. (Justice Isagani A. Cruz, in an article entitled “A New World Order” written in his column “Separate Opinion” published in the March 30, 2003 issue of the Philippines Daily Inquirer)
Q: Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the US justify the attack initiated by the latter? A: Even if Iraq’s hidden arsenal is discovered – or actually used – and the United States is justified in its suspicions, that circumstance will not validate the procedure taken against Iraq. It is like searching a person without warrant and curing the irregularity with the discovery of prohibited drugs in his possession. The process cannot be reversed. The warrant must first be issued before the search and seizure can be made.
The American invasion was made without permission from the Security Council as required by the UN Charter. Any subsequent discovery of the prohibited biological and chemical weapons will not retroactively legalize that invasion, which was, legally speaking, null and void ab initio. (Justice Isagani A. Cruz, in an article entitled “A New World Order” written in his column “Separate Opinion” published in the March 30, 2003 issue of the Philippines Daily Inquirer)
Q: State B, relying on information gathered by its intelligence community to the effect that its neighbor, State C, is planning an attack on its nuclear plan and research institute, undertook a “preventive” attack in certain bases on State C located near the border of the two states. As a result, State C presented the incident to the UN General Assembly but the latter referred it to the UN Security Council as a matter, which disturbs or threatens “international peace and security”. State B argued that it was acting within the legal bounds of Article 51 of the UN Charter and that it was a permitted use of force in self-defense and against armed attack. Is State B responsible under International Law? Did State B act within the bounds set forth in
the UN Charter on the use of force in self- defense? (1985 Bar) A: An armed attack is not a requirement for the exercise of the right of self-defense. However, the attack of State B on State C cannot be justified as an act of self-defense under Art. 51 of the UN Charter considering that the danger perceived by State B was not imminent. State B ought to have exhausted peaceful and pacific methods of settlements instead of resorting to the use of force.
Q: Who can declare war? A: No one! The Constitution has withheld this power from the government. What the Constitution allows is a declaration of a “State of War”. Under Art. VI, Sec. 23(1) – “Congress, by a vote of 2/3 of both Houses, in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. This means that we are already under attack
Q: What are the effects when Congress declares a state of war? A: 1. Art. VI, Sec. 23 – “In times of war…the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.”
☀ This is in line with the UN Charter, which also renounces war ☀ As charter-member of the UN, our Constitution also renounces war as an instrument of national policy
Intervention It is “the dictatorial interference by a State in the internal affairs of another State, or in the relations between other States, which is either forcible or backed by the threat of force.”
Intervention is Different from “Intercession” ☀ Intercession is allowed! ☀ EX.: Diplomatic Protest, Tender of Advice
Generally Intervention is Prohibited (Drago Doctrine) ★ Prohibits intervention for the collection of contractual debts, public or private ★ Formulated by Foreign Minister Luis Drago (Argentina), in reaction to the Venezuelan Incident
Venezuelan Incident In 1902, UK, Germany and Italy blockaded Venezuelan ports to compel it to pay its contractual debts leading Foreign Minister Drago to formulate a doctrine that “ a public debt cannot give rise to the right of intervention. This principle was later adopted in the Second Hague Conference, but subject to the qualification that the debtor state should not refuse or neglect to reply to an offer of arbitration or after accepting the offer, prevent any compromis from being agreed upon, or after the arbitration, fail to submit to the award, the qualification is known as the Porter resolution.
Pacific Blockade ★ one imposed during times of peace ★ were the countries at war, then a blockade is a legitimate measure ★ in fact, a blockade must not be violated by a neutral State ★ if breached, the neutral vessel is seized
WHEN INTERVENTION ALLOWED, Exceptions
“Intervention by Invitation” ★ Presupposes that the inviting State is not a mere puppet of the intervening State ★ EX.: Hungary In 1956, Hungary was in internal turmoil, and asked the Soviet forces to intervene While the intervention was upon invitation, it was still condemned because the Hungarian government was a mere Soviet puppet
A. Recognition of State B. Recognition of Government C. Recognition of Belligerency
2 Schools of Thought Constitutive School
Declaratory School
★ recognition of a State has now been substituted to a large extent by the act of admission to the United Nations ★ it is the “assurance given to a new State that it will be permitted to hold its place and rank in the character of an independent political organism in the society of nations”
Q: Explain, using example, the Declaratory Theory of Recognition Principle. (1991 Bar) A: The declaratory theory of recognition is a theory according to which recognition of a state is merely an acknowledgment of the fact of its existence. In other words, the recognized state already exists and can exist even without such recognition. For example, when other countries recognize Bangladesh, Bangladesh already existed as a state even without such recognition.
Q: Distinguish briefly but clearly between the constitutive theory and the declaratory theory concerning recognition of states. (2004 Bar) A: The constitutive theory is the minority view which holds that recognition is the last element that converts or constitutes the entity being recognized into an international person; while the declaratory theory is the majority view that recognition affirms the pre-existing fact that the entity being recognized already possesses the status of an international person. In the former recognition is regarded as mandatory and legal and may be demanded as a matter of right by any entity that can establish its possession of the four essential elements of a state; while the latter recognition is highly political and discretionary.
Recognition of Government
Recognition of State As to Scope Does not necessarily signify that recognition of a State – to government may not be independent
Includes recognition or government – government an essential element of a State
As to Revocabilit y
Revocable Generally, irrevocable
Q: Distinguish recognition of State from recognition of Government. (1975 Bar) A: (1) Recognition of state carries with it the recognition of government since the former implies that a state recognized has all the essential requisites of a state at he time recognition is extended.
(2) Once recognition of state is accorded, it is generally irrevocable. Recognition of government, on the other hand, may be withheld from a succeeding government brought about by violent or unconstitutional means.
Criteria for Recognition
★ the government is willing and able to discharge its international obligations ★ 2 Doctrines
Tobar or Wilson Doctrine ☀ suggested by Foreign Minister Tobar (Ecuador); reiterated by President Woodrow Wilson (US) ☀ recognition is withheld from governments established by revolutionary means – revolution, civil war, coup d’etat, other forms of internal violence, UNTIL, freely elected representatives of the people have organized a constitutional government
Estrada Doctrine ☀ a reaction to the Tobar/Wilson Doctrine; formulated by Mexican Foreign Minister Genaro Estrada ☀ disclaims right of foreign states to rule upon legitimacy of a government of a foreign State ☀ a policy of never issuing any declaration giving recognition to governments – instead, it simply accepts whatever government is in effective control without raising the issue of recognition
Q: Distinguish briefly but clearly between the Wilson doctrine and the Estrada doctrine regarding recognition of governments. ( Bar) A: In the Wilson or Tobar doctrine, a government established by means revolution, civil war, coup d’ etat or other forms of internal violence will not be recognized until the freely elected representatives of the people have organized a constitutional government, while in the Estrada doctrine any diplomatic representatives in a country where an upheaval has taken place will deal or not deal with whatever government is in control therein at the time and either action shall not be taken as a judgment on the legitimacy of the said government.
Kinds of Recognition Recognition De Jure Recognition De Facto As to Duration
Relatively permanent
Provisional,
As to Effect on Diplomatic Relations
Brings about full diplomatic relations/intercours e
Limited to certain juridical relations; for instance, it does not bring about diplomatic immunities As to Vests title to Does not
Effect on Properties Abroad
recognized government in properties abroad
vest such title
Recognition De Jure ★ Given to a government that satisfies both the objective and subjective criteria
Recognition De Facto ★ Given to governments that have not fully satisfied objective and subjective criteria ★ EX.: While wielding effective power, it might have not yet acquired sufficient stability
Consequences of Recognition of Government
Thus, Act of State Doctrine now applies
Q: Who has the authority to recognize? A: It is a matter to be determined according to the municipal law of each State. In the Philippines, there is no explicit provision in the Constitution which vests this power in any department. But since under the Constitution, the President is empowered to appoint and receive ambassadors and public ministers, it is conceded that by implication, it is the Executive Department that is primarily endowed with the power to recognize foreign governments and States. [Art. VII, 1987 Constitution]
The legality and wisdom of recognition accorded any foreign entity is not subject to judicial review. The courts are bound by the acts of political department of the government. The action of the Executive in recognizing or refusing to recognize a foreign State or government is properly within the scope of judicial notice.
Q: Is the recognition extended by the President to a foreign government subject to judicial review? A: NO! It is purely a political question.
