46289209 Public International Law Notes 1

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CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFASALIDAGA

NOTES ON PUBLIC INTERNATIONAL LAW

CHAPTER 1GENERAL PRINCIPLES

Natur and S!"#

Pub$%! Intrnat%"na$ La& – It is the body of rules and principles that arerecognized as legally binding and which govern the relations of states and other

entities invested with international legal personality. Formerly known as “$a& "' nat%"n(” coined by Jeremy entham in !"#$.

T)r Ma*"r Part( "' Pub$%! Intrnat%"na$ La&

1. La&( "' Pa! – normal relations between states in the absence of war.

2. La&( "' War – relations between hostile or belligerent states duringwartime.

3. La&( "' Nutra$%ty – relations between a non%participant state and aparticipant state during wartime. &his also refers to the relations amongnon%participating states.

S"ur!( "' Pub$%! Intrnat%"na$ La&

!. International conventions'. International custom(. &he general principles of law recognized by civilized nations. )e.g.

prescription* pacta sunt servanda* and estoppel+.

D%(t%n!t%"n "' Pub$%! Intrnat%"na$ La& &%t) Mun%!%#a$ La&




,unicipal -aw ublic International -aw

!. Issued by a political superior for observance by those under itsauthority/

'. 0onsists mainly of enactments fromthe law%making authority of each state/

(. 1egulates the relations of individuals among themselves or withtheir own states/

2. 3iolations are redressed throughlocal administrative and 4udicialprocesses/ and*

5. breaches generally entail onlyindividual responsibility.

!. 6ot imposed upon but simplyadopted by states as a common rule of action among themselves/

'. derived not from any particular legislation but from such sources asinternational customs* internationalconventions and the general principlesof law/

(. 7pplies to the relations inter se of states and other international persons/

2. 8uestions are resolved throughstate%to%state transactions ranging frompeaceful methods like negotiation andarbitration to the hostile arbitrament of force like reprisals and even war/ and*

5. responsibility of infractions is usuallycollective in the sense that it attachesdirectly to the state and not to itsnationals.

Pub$%! Intrnat%"na$ La& %n R$at%"n t" Mun%!%#a$ La&

In the #a+ut Habana* Justice 9ray said: “the law of nations* although notspecially adopted by the 0onstitution or any municipal act* is essentially a part of the law of the land.”

D"!tr%n "' In!"r#"rat%"n – the rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicablein the domestic sphere. ,S!. "' Ju(t%! -. Lant%"n GRN 1/023 Jan. 14356667

&his doctrine is followed in the hilippines as embodied in 7rt. II* ;ec. ' of the!$#" 0onstitution which provides that: “&he hilippines<adopts the generallyaccepted principles of international law as part of the law of the land<” =owever*no primacy is implied.




It should be presumed that municipal law is always enacted by each state withdue regard for and never in defiance of the generally accepted principles of

international law. ,C" 8%9 C)an -. :a$d; Tan 8)7.

It is a settled principle of international law that a sovereign cannot be permitted toset up his own municipal law as a bar to a claim by foreign sovereign for a wrongdone to the latter>s sub4ect. )US - Guat9a$a+.

C"n(t%tut%"n -. Traty

9enerally* the treaty is re4ected in the local forum but is upheld by internationaltribunals as ademandable obligation of the signatories under the principle of

pacta sunt servanda.

Pa!ta Sunt Sr-anda – international agreements must be performed in 9oodFaith. 7 treaty engagement is not a mere moral obligation but creates a legallybinding obligation on the parties. 7 state which has contracted a validinternational obligation is bound to make in its legislation such modifications asmay be necessary to ensure the fulfillment of the obligations undertaken.

The Philippine Constitution however contains provisions empowering the judiciary to annul treaties thereby establishing the primacy of the local law over the international agreement.

7rt. ?* ;ec. ')'+ provides that “all cases involving the constitutionality of anytreaty* e@ecutive agreement or law shall be heard and decided by the ;upreme0ourt en banc* and no treaty* e@ecutive agreement or law may be declaredunconstitutional without the concurence of ten 4ustices.”

&he 0onstitution authorizes the nullification of a treaty not only when it conflictswith the 0onstitution but also when it runs counter to an act of 0ongress.,G"n;a$( -. H!)an"-a7.

Ba(%( "' Pub$%! Intrnat%"na$ La&

&hree theories on this matter:

1. T) Natura$%(t – under this theory* there is a natural and universalprinciple of right and wrong* independent of any mutual intercource or




compact* which is supposed to be discovered and recognized by everyindividual through the use of his reason and his conscience.

2. T) P"(%t%-%(t – under this theory* the binding force of international law isderived from the agreement of sovereign states to be bound by it. It is nota law of subordination but of coordination.

3. T) E!$!t%!( "r Gr"at%an( – this theory offers both the law of nature andthe consent of states as the basis of international law. It contends that thesystem of international law is based on the “dictate of right reason” as wellas “the practice of states.”

San!t%"n( "' Pub$%! Intrnat%"na$ La&

San!t%"n( – the compulsive force of reciprocal advantage and fear of retaliation.

!. &he inherent reasonableness of international law that its observance willredound to the welfare of the whole society of nations/

'. &he normal habits of obedience ingrained in the nature of man as a socialbeing/

(. &o pro4ect an agreeable public image in order to maintain the goodwill and

favorable regard of the rest of the family of nations/

2. &he constant and reasonable fear that violations of international law mightvisit upon the culprit the retaliation of other states/ and*

5. &he machinery of the Anited 6ations which proves to be an effectivedeterrent to international disputes caused by disregard of the law of nations.

En'"r!9nt "' Pub$%! Intrnat%"na$ La&

;tates are able to enforce international law among each other throughinternational organizations or regional groups such as the Anited 6ations and theBrganization of 7merican ;tates. &hese bodies may adopt measures as may benecessary to compel compliance with international obligations or vindicate thewrong committed.




Fun!t%"n( "' Pub$%! Intrnat%"na$ La&

!. &o establish peace and order in the community of nations and to preventthe employment of force* including war* in all international relations/

'. &o promote world friendship by levelling the barriers* as of color or creed/

(. &o encourage and ensure greater international cooperation in the solutionof certain common problems of a political* economic* cultural or humanitarian character/ and*

2. &o provide for the orderly management of the relations of states on thebasis of the substantive rules they have agreed to observe as members

of the international community.

D%(t%n!t%"n( &%t) Ot)r C"n!#t(

Intrnat%"na$ 9"ra$%ty "r t)%!( – embodies those principles which govern therelations of states from the higher standpoint of conscience* morality* 4ustice andhumanity.

Intrnat%"na$ d%#$"9a!y – relates to the ob4ects of national or internationalpolicy and the conduct of foreign affairs or international relations.

Intrnat%"na$ ad9%n%(trat%- $a& – that body of laws and regulations created bythe action of international conferences or commissions which regulate therelations and activities of national and international agencies with respect tothose material and intellectual interests which have received an authoritativeuniversal recognition.

CHAPTER 5

THE INTERNATIONAL COMMUNIT<

Intrnat%"na$ C"99un%ty – the body of 4uridical entities which are governed bythe law of nations.

0omposition of International community:

!. ;tate'. Anited 6ations




(. the 3atican 0ity2. 0olonies and dependencies

5. ,andates and trust territoriesC. International administrative bodies". elligerent communities#. Individuals

1. Stat(

Stat – a group of people living together in a definite territory under anindependent government organized for political ends and capable of entering intointernational relations.

;ome writers no loner recognized the distinction between (tat and nat%"n*pointing out that these two terms are now used in an identical sense.6evertheless* a respectable number of 4urists still hold that the (tat %( a $=a$!"n!#t* the nat%"n %( "n$y a ra!%a$ "r t)n%! !"n!#t.

E$9nt( "' A Stat

!. eople'. &erritory(. 9overnment

2. ;overeignty

A. P"#$ – the inhabitants of the ;tate.

eople must be numerous enough to be self%sufficing and to defend themselves*and small enough to be easily administered and sustained. &hey are aggregateof individuals of both se@es who live together as a community despite racial or cultural differences.

• 9roups of people which cannot comprise a ;tate:

◦ 7mazons – not of both se@es/ cannot perpetuate themselves

◦ irates – considered as outside the pale of law* treated as an enemy of

all mankind/ “hostis humani generis”

B. Trr%t"ry – the fi@ed portion of the surface of the earth inhabited by thepeople of the ;tate.

&he size is irrelevant. ,San Mar%n" -. C)%na7. ut* practically* must not be toobig as to be difficult to administer and defend/ but must not be too small as to




unable to provide for peopleDs needs.

C. G"-rn9nt – the agency or instrumentality through which the will of the;tate is formulated* e@pressed and realized.

D. S"-r%=nty – the power to direct its own e@ternal affairs without interferenceor dictation from other states.

C$a((%'%!at%"n "' Stat(

1. Ind#ndnt (tat( – having full international personality.

• ;overeignty – connotes freedom in the direction by the state in its own

internal and e@ternal affairs.

• =owever international law is concerned only with this freedom in so far as

it relates to e@ternal affairs/ hence* a state which is not sub4ect to dictationfrom others in this respect is known as an independent state.

2. D#ndnt (tat( – e@emplified by the suzerainty and the protectorateand are so called because they do not have full control of their e@ternalrelations.

• Eependent states fall into two general categories: t) #r"t!t"rat and

t) (u;ra%nty. =owever* there is no unanimity as to their basicdistinctions in terms of measure of control over its e@ternal affairs.

2. Nutra$%;d (tat( – an independent state* whether it be simple or composite* may be neutralized through agreement with other states byvirtue of which the latter will guarantee its integrity and independenceprovided it refrains from taking any act that will involve it in war or other hostile activity e@cept for defensive purposes.

C$a((%'%!at%"n "r Ty#( "' An Ind#ndnt Stat

1. S%9#$ (tat – one which is placed under a single and centralizedgovernment e@ercising power over both its internal and e@ternal affairs)e.g. hilippines and =olland+.

2. C"9#"(%t (tat – one which consists two or more states* each with itsown separate government but bound under central authority e@ercising* toa greater or less degree* control over their e@ternal relations.

8%nd( "r Cat="r%( "' C"9#"(%t Stat(>

a) Ra$ Un%"n – created when two or more states are merged under a




unified authority so that they form a single international person throughwhich they act as one entity )e.g. 6orway and ;weden from !#!52 to

!$5+.

b) Fdra$ Un%"n )or a federation+ – is a combination of two or moresovereign states which upon merger cease to be states* resulting inthe creation of a new state with full international personality torepresent them in their e@ternal relations as well as a certain degree of power over the domestic affairs and their inhabitants )e.g. 9ermanGmpire under the 0onstitution of !#"!+.

c) C"n'drat%"n – an organization of states which retain their internalsovereignty and* to some degree* their e@ternal sovereignty* while

delegating to the collective body power to represent them as a wholefor certain limited and specified purposes )e.g. 9erman states in !#CCuntil they eventually developed into a more closely%knit federation+.

d) Pr("na$ Un%"n – comes into being when two or more independentstates are brought together under the rule of the same monarch* whonevertheless does not constitute one international person for thepurpose of representing any or all of them. ;trictly speaking therefore*the personal union is not a composite state because no newinternational person is created to represent it in international relations)e.g. elgium and the Former 0ongo Free ;tate from !##5 to !$5+.

5. T) Un%td Nat%"n(

7lthough the Anited 6ations is not a state or a super%state but a mereorganization of states* it is regarded as an international person for certainpurposes.

• It n*"y( !rta%n #r%-%$=( and %99un%t%(* such as non%suability*

inviolability of its premises and archives* and e@emption from ta@ation.

• It !an a((rt a d%#$"9at%! !$a%9 "n b)a$' "' %t( "''%!%a$(3 and trat%(9ay a$(" b !"n!$udd by %t through the 9eneral 7ssembly* the ;ecurity0ouncil* and the Gconomic and ;ocial 0ouncil.

• Tru(t trr%t"r%( ar supposed to be undr %t( r(%dua$ ("-r%=nty.

. T) :at%!an C%ty

In !$'#* Italy and the 3atican concluded the -ateran &reaty “for the purpose of




assuring to the =oly ;ee absolute and visible independence and of guaranteeingto it absolute and indisputable sovereignty in the field of international relations.”

0. C"$"n%( and D#ndn!%(

From the viewpoint of international law* a colony or a depndency is part andparcel of the parent state* through which all its e@ternal relations are transactedwith other states.

6evertheless* (u!) nt%t%( )a- bn a$$"&d "n "!!a(%"n t" #art%!%#at %nt)%r "&n r%=)t %n %ntrnat%"na$ undrta?%n=( and granted practically the statusof a sovereign state. It is when acting %n t)%( !a#a!%ty t)at !"$"n%( and

d#ndn!%( ar !"n(%drd %ntrnat%"na$ #r("n(.

2. Mandat( and Tru(t Trr%t"r%(

&he system of mandates was established after the first Horld Har in order toavoid outright anne@ation of the underdeveloped territories taken from thedefeated powers and to place their administration under some form of international supervision.

T)r 8%nd( "' Tru(t Trr%t"r%(>

!. &hose held under mandate under the -eague of 6ations/

'. &hose territories detached from the defeated states after Horld Har II/and*

(. &hose voluntarily placed under the system of the states responsible for their administration.

&hese territories en4oy certain rights directly available to them under the Anited6ations 0harter that vest them with a degree of international personality. &heyare not however sovereign.

. B$$%=rnt C"99un%t%(

Hhen a portion of the population rises up in arms against the legitimategovernment of the state* and such conflict widens and aggravates* it maybecome necessary to accord the rebels recognition of belligerency.

For purposes of the conflict* and pending determination of whether or not the




belligerent community should be fully recognized as a state* it is treated as aninternational person and becomes directly sub4ect to the laws of war and

neutrality.

@. Intrnat%"na$ Ad9%n%(trat%- B"d%(

0ertain administrative bodies created by agreement among states may be vestedwith international personality )e.g. International -abor Brganization* Horld=ealth Brganization+.

T&" R+u%(%t( '"r Intrnat%"na$ Ad9%n%(trat%- B"d%( t" b :(td &%t)Intrnat%"na$ Pr("na$%ty>

!. &heir purposes are mainly non%political/ and that'. &hey are autonomous* i.e. not sub4ect to the control of any state.

4. Ind%-%dua$(

&raditional concept regards the individual only as an ob4ect of international lawwho can act only through the instrumentality of his own state in matters involvingother states.

Bf late* however* the view has grown among many writers that the individual isnot merely an ob4ect but a sub4ect of international law. Bne argument is that theindividual is the basic unit of society* national and international* and musttherefore ultimately governed by the laws of this society.




CHAPTER THE UNITED NATIONS

&he Anited 6ations emerged out of the travail of Horld war II as symbol of man>sundismayed determination to establish for all nations a rule of law that wouldforever banish the terrible holocaust of war in the so$lution of internationaldisputes.

&he first formal step toward the creation of the Anited 6ations was the ,oscowEeclaration* signed by the representatives of 0hina* the ;oviet Anion* the Anitedingdom* and the Anited ;tates.

T) U.N. C)artr

T) Un%td Nat%"n( C)artr – a lengthy document consisting of !!! articlesbesides the preamble and the concluding provisions. It also includes the ;tatuteof the International 0ourt of Justice which is anne@ed to and made an integralpart of it.

In one sense* t) C)artr maybe considered a traty b!au( %t dr%-( %t(b%nd%n= '"r! 'r"9 t) a=r9nt "' t) #art%( to it. In another sense* it maybe regarded as a !"n(t%tut%"n in so far a( %t #r"-%d( for the organization andoperations of the different organs of the Anited 6ations and for t) ad"#t%"n "' any !)an= %n %t( #r"-%(%"n( t)r"u=) '"r9a$ #r"!(( "' a9nd9nt .




&he 0harter is intended to apply not only to the members of the Brganization butalso to non%member states so far as may be necessary for the maintenance of

international peace and security.

7mendments to the 0harter shall come into force by a vote of two%thirds of themembers of the 9eneral 7ssembly and ratified in accordance with their respective constitutional processes by two%thirds of the ,embers of the Anited6ations.

T) Pra9b$ t" t) C)artr

&he preamble introduces the 0harter and sets the common intentions that moved

the original members to unite their will and efforts to achieve their commonpurposes.

Pur#"((

&he purposes of the 0harter are e@pressed in 7rticle ! as follows:

!. ,aintain international peace and security/

'. Eevelop friendly relations among nations/

(. 7chieve international cooperation in solving international problems/

2. e a center for harmonizing the actions of nations in the attainment of these common ends.

Pr%n!%#$(

T) S-n Card%na$ Pr%n!%#$( ) as enumerated in 7rticle '+:

1. &he Brganization is based on the principle of the ("-r%=n +ua$%ty of allits members/

2. 7ll ,embers shall 'u$'%$$ %n =""d 'a%t) t) "b$%=at%"n( a((u9d by themin accordance with the present 0harter/

3. 7ll ,embers shall (tt$ their %ntrnat%"na$ d%(#ut( by #a!'u$9an(/

4. 7ll ,embers shall r'ra%n in their international relations 'r"9 t) t)rat "r




u( "' '"r! a=a%n(t t) trr%t"r%a$ %nt=r%ty "r #"$%t%!a$ %nd#ndn!"' any (tat/

5. 7ll ,embers shall =%- t) Un%td Nat%"n( -ry a((%(tan! in anyaction it takes in accordance with the present 0harter/

6. &he Brganization shall ensure that (tat( &)%!) ar n"t M9br( "' t)Un%td Nat%"n( a!t %n a!!"rdan! &%t) t)( Pr%n!%#$( / and*

7. N"t)%n= contained in the present 0harter ()a$$ aut)"r%; t) Un%tdNat%"n( t" %ntr-n %n 9attr( &)%!) ar ((nt%a$$y &%t)%n t)d"9(t%! *ur%(d%!t%"n "' any (tat.

M9br()%#

T&" 8%nd( "' 99br( %n t) Un%td Nat%"n(

1. Or%=%na$ – those which* having participated in the Anited 6ations0onference on International Brganization at ;an Francisco or havingpreviously signed the Eeclaration by the Anited 6ations of January !*!$2'* signed and ratified the 0harter of the Anited 6ations.

• Interestingly* the hilippines was included as original member althoughit was not yet a state at the time.

5. E$!t%-

In addition to the original members* other members may be admitted to theAnited 6ations by decision of the 9eneral 7ssembly upon the favorablerecommendation of the ;ecurity 0ouncil.

M9br()%# ua$%'%!at%"n( t" t) Un%td Nat%"n(

!. It must be a state/'. It must be peace%loving/(. It must accept the obligations of the 0harter/2. It must be able to carry out these obligations/ and*5. It must be willing to carry out these obligations/

Su(#n(%"n "' M9br(

7s in the case of admission* suspension is effected by two%thirds of those




present and voting in 9eneral 7ssembly upon the favorable recommendation of at least nine members of the ;ecurity 0ouncil* including all its permanent

members.

&he suspension may be lifted alone by the ;ecurity 0ouncil* also by a ualifiedma4ority vote.

6ationals of the suspended member may* however* continue serving in the;ecretariat and the International 0ourt of Justice as they are regarded asinternational officials or civil servants acting for the Brganization itself.

;ince suspension affects only its rights and privileges* the member is still sub4ectto the discharge of its obligations under the 0harter.

E#u$(%"n "' M9br(

7 member which has persistently violated the principles contained in the 0harter may be e@pelled by two%thirds of those present and voting in the 9eneral

7ssembly upon the recommendation of the ;ecurity 0ouncil by a ualifiedma4ority vote.

W%t)dra&a$ "' M9br(

6o provision on withdrawal of membership was included in the 0harter becauseof the fear that it might encourage successive withdrawals that would weaken theBrganization.

Or=an( "' t) Un%td Nat%"n(

!. &he 9eneral 7ssembly'. &he ;ecurity 0ouncil

(. &he Gconomic and ;ocial 0ouncil2. &he &rusteeship 0ouncil5. &he International 0ourt of JusticeC. &he ;ecretariat

A. T) Gnra$ A((9b$y

It consists of all the members of the Brganization* each of which is entitled tosend not more than five representatives and five alternates as well as suchtechnical staff as it may need.




• Fun!t%"n( "' t) Gnra$ A((9b$y

◦ D$%brat%- % such as initiating studies and making

recommendations/

◦ Su#r-%("ry – such as receiving and considering annual and special

reports from the other organs/

◦ F%nan!%a$ – such as consideration and approval of budget of the

Brganization/

◦ E$!t%- – such as the election of non%permanent members of the

;ecurity 0ouncil/

◦ C"n(t%tunt – such as the admission of members and the amendment

of the 0harter.

B. T) S!ur%ty C"un!%$

&he key organ of the Anited 6ations of international peace and security is the;ecurity 0ouncil.

It consists of five permanent members and ten elective members. &he elective

members are elected for two%year terms.

C. T) E!"n"9%! and S"!%a$ C"un!%$

&he responsibility for the promotion of international economic and socialcooperation is vested in the 9eneral 7ssembly* and under its authority* theGconomic and ;ocial 0ouncil. ;pecifically these organs should e@ert effortstoward:

• higher standards of living* full employment* and conditions of economic

and social progress and development/• solutions of international economic* social* health and related problems*

and international* cultural and educational cooperation/ and*• universal respect for human rights and fundamental freedoms for all

without distinction as to race* se@* language or religion.

D. T) Tru(t()%# C"un!%$

It is the organ charged with the duty of assisting the ;ecurity 0ouncil and the9eneral 7ssembly in the administration of the international trusteeship system.




E. T) Intrnat%"na$ C"urt "' Ju(t%!

It functions in accordance with the ;tatute. 7ll members of the Brganization areipso facto parties to the ;tatute. 7 non%member may become a party onconditions to be determined in each case by the 9eneral 7ssembly upon therecommendation of the security 0ouncil.

T) #r%n!%#a$ 'un!t%"n( "' t) C"urt ar :

• to decide contentious cases/ and*

• render advisory opinions.

&he 4urisdiction of the 0ourt is based on the consent of the parties as manifested

under the “optional 4urisdiction clause” in 7rticle (C of the ;tatute.

7dvisory opinions may be given by the 0ourt upon reuest of the 9eneral 7ssembly or the ;ecurity 0ouncil* as well as other organs of the Anited 6ations*when authorized by the 9eneral 7ssembly* on legal uestions arising within thescope of their activities.

F. T) S!rtar%at

It is the chief administrative organ of the Anited 6ations which is headed by the;ecretary%9eneral.

&he ;ecretary%9eneral is chosen by the 9eneral 7ssembly upon therecommendation of the ;ecurity 0ouncil. =is term is fi@ed at five years byresolution of the general 7ssembly* and he may be re%elected.

&he ;ecretary%9eneral is the highest representative of the Anited 6ations and isauthorized to act in its behalf. Hhen acting in this capacity* he is entitled to fulldiplomatic immunities and privileges which only the ;ecurity 0ouncil may waive.

&he ;ecretary%9eneral also acts as secretary in all meetings of the 9eneral 7ssembly* the ;ecurity 0ouncil* the Gconomic and ;ocial 0ouncil and the

&rusteeship 0ouncil and performs such other functions as may be assigned tohim by these organs.

In addition* he prepares the budget of the Anited 6ations for submission to the9eneral 7ssembly* provides technical facilities to the different organs of theBrganization* and in general coordinates its vast administrative machinery.




CHAPTER 0THE CONCEPT OF THE STATE

7s the basic unit of the international community* the state is the principal sub4ectof international law.

Crat%"n "' t) Stat

F"ur E((nt%a$ E$9nt( "' t) Stat

!. eople'. &erritory(. 9overnment2. ;overeignty

Mt)"d( by &)%!) Statu( "' A Stat %( A!+u%rd

!. 1evolution'. Anification

(. ;ecession2. 7ssertion of independence5. 7greements7ttainment of civilization

T) Pr%n!%#$ "' Stat C"nt%nu%ty

From the moment of its creation* the state cointinues as a 4uristic beingnotwithstanding changes in its circumstances* provided only that they do notresult in loss of any of its essential elements.

Et%n!t%"n "' t) Stat

6evertheless* it is error to suppose that a state is immortal. &here are instanceswhen a radical impairment or actual loss of one or more of the essential elementsof the state will result in its e@tinction.

Su!!((%"n "' Stat(




;tate succession takes place when one state assumes the rights and some of

the obligations of another because of certain changes in the condition of thelatter.

Un%-r(a$ Su!!((%"n – when a state is anne@ed to another state or is totallydismembered or merges with another state to form a new state.

Part%a$ Su!!((%"n – when a portion of the territory of a state secedes or isceded to another or when an independent state becomes a protectorate or asuzerainty or when a dependent state acuires full sovereignty.

C"n(+un!( "' Stat Su!!((%"n

• &he allegiance of the inhabitants of the predecessor state in the territory

affected is transferred to the successor state.

• &he political laws of the former sovereign are automatically abrogated and

may be restored only by a positive act on the part of the new sovereign.

• &reaties of a political and even commercial nature are also discontinued*

but the successor state is bound by treaties dealing with local rights and

duties.

• 7ll rights of the predecessor state are inherited by the successor state but

this is not so where the liabilities are concerned.

Su!!((%"n "' G"-rn9nt(

Bne government replaces another either peacefully or by violent methods. Inboth instances* the integrity of the state is not affected/ the state continues as thesame international person e@cept only that its lawful representative is changed.

&he rule is that where the new government was organized by virtue of aconstitutional reform* the obligations of the replaced government are alsocompletely assumed by the former.

0onversely* where the new government was established through violence* it maylawfully re4ect the purely personal or political obligations of the predecessor government but not those contracted by it in the ordinary course of officialbusiness.




CHAPTER 2RECOGNITION

Gven if an entity has already acuired the elements of international personality* itis not for this reason alone automatically entitled to membership in the family of




nations. Its admission thereto is dependent on:

• as reflective of the ma4ority theory* the acknowledgment of its status bythose already within the fold and their willingness to enter into relationswith it as a sub4ect of international law ,d!$arat"ry7/

• as reflective of the minority theory* the the acknowledgment is mandatory

and legal and may be demanded as a matter of right by any entity that canestablish its possession of the four essential elements of a state,!"n(t%tut%-7.

Ob*!t( "' R!"=n%t%"n

1ecognition may be e@tended to:

a. Stat* which is generally held to be irrevocable and imports the recognition of its government/

b. G"-rn9nt* which may be withdrawn and does not necessarily signify thee@istence of a state as the government may be that of a mere colony/ and*

c. B$$%=rn!y* which does not produce the same effects as the recognition of states and governments because the rebels are accorded internationalpersonality only in connection with the hostilities they are waging.

8%nd( "' R!"=n%t%"n

!. G@press recognition – may be verbal or in writing/

'. Implied recognition – when the recognizing state enters into officialintercourse with the new member by e@changing diplomaticrepresentatives with it* etc.

T) A!t "' R!"=n%t%"n %( Ind%!at%- "' t) F"$$"&%n= Intnt%"n(

!. &o treat with the new state as such/'. &o accept the new government as having authority to represent the state/(. &o recognize in the case of insurgents that they are entitled to e@ercise

belligerent rights.

R!"=n%t%"n "' Stat




&he recognition of a new state is the free act by which one or more states

acknowledge the e@istence on a definite territoryof a human society politicallyorganized* independent of any other e@isting state* and capable of observing theobligations of international law* and by which they manifest therefore their intention to consider it a member of the international community.

R!"=n%t%"n "' G"-rn9nt(

&he recognition of the new government of a state which has been alreadyrecognized is the free act by which one or several states acknowledge that aperson or a group of persons are capable of binding the state which they claim torepresent and witness their intention to enter into relations with them.

T&" 8%nd( "' G"-rn9nt(

!. Ee Jure'. Ee facto

T)r 8%nd( "' D Fa!t" G"-rn9nt

!. &hat which is established by the inhabitants who rise in revolt against anddepose the legitimate regime/

'. &hat which is established in the course of war by the invading forces of one belligerent in the territory of other belligerent* the government of whichis also displaced/ and*

(. &hat which is established by the inhabitants of a state who secedetherefrom without overthrowing its government.

T"bar "r W%$("n Pr%n!%#$ – recognition shall not be e@tended to anygovernment established by revolution* civil war* coup d>etat or other forms of internal violenceuntil the freely elected representatives of the people have

organized a constitutional government.

In any event* the practice of most states now is to e@tend recognition to a newgovernment only if it is shown that it has control of the administrative machineryof the state with popular acuiesence and that it is willing to comply with itsinternational obligations.

D%(t%n!t%"n( bt&n t) t&" ?%nd( "' r!"=n%t%"n

D Jur D Fa!t"




• 1elatively permanent/

• 3ests title in the government toits properties abroad/

• rings about full diplomatic

relations.

• rovisional/

• Eoes not/

• -imited to certain 4uridical

relations.

E''!t( "' R!"=n%t%"n "' Stat and G"-rn9nt(

!. Full diplomatic relations are established e@cept where the governmentrecognized is de facto/

'. &he recognized state or government acuired right to sue in the courts of the recognizing state.

It is error* however* to suppose that non%suability of the foreign state or government is also an effect of recognition* as this is an attribute it can claimwhether or not it has been recognized by the local state. &he applicable rule isthe doctrine of state immunity. It has been held that to cite “a foreign sovereign

in the municipal courts of another state” would be “an insult which he is entitled toresent” and would certainly “ve@ the peace of nations.”

(. &he recognized state or government has a right to the possession of theproperties of its predecessor in the territory of the recognizing state.

4. 7ll acts of the recognized state or government are validated retroactively*preventing the recognizing state from passing upon their legality in its owncourts.

R!"=n%t%"n "' B$$%=rn!y

7 belligerency e@ists when the inhabitants of a state rise up in arms for thepurpose of overthrowing the legitimate government.

C"nd%t%"n( '"r A B$$%=rnt C"99un%ty t" B R!"=n%;d

!. &here must be an organized civil government directing the rebel forces/

'. &he rebels must occupy a substantial portion of the territory of the state/




(. &he conflict between the legitimate government and the rebels must be

serious* making the outcome uncertain/ and*

2. &he rebels must be willing and able to observe the laws of war.

C"n(+un!( "' R!"=n%t%"n "' B$$%=rn!y

Apon recognition by the parents state* the belligerent community is considered aseparate state for purposes of the conflict it is waging against the legitimategovernment. &heir relations with each other will* thenceforth and for the durationof the hostilities* be governed by the laws of war* and their relations with other

states will be sub4ect to the laws of neutrality.

CHAPTER THE RIGHT OF EISTENCE AND SELFDEFENSE

Bnce a state comes into being* it is invested with certain rights described as

fundamental.

Funda9nta$ R%=)t( "' A Stat

!. &he right to national e@istence and national defense/'. &he right of sovereignty and independence/(. &he right of euality/2. &he right of property and 4urisdiction/ and*5. &he right of legation or diplomatic intercourse.

&he most important of these rights is the right of e@istence and self%defense*




because all other rights are supposed to flow or be derived from it. y virtue of this right* the state may take measures* including the use of force* as may be

necessary to counteract any danger to its e@istence.

R+u%(%t( "' R%=)t

In 7rt. 5! of the 0harter of the Anited 6ations* it is provided that %

“6othing in the present 0harter shall impair the inherent right of individual or collective self%defense if any armed attack occurs against a member of theAnited 6ations* until the ;ecurity 0ouncil has taken the measures necessary for the maintenance of international peace and security. @@@”

&he presence of an “armed attack” to 4ustify the e@ercise of the right of the self%defense under this article suggests that forcible measures may be taken by astate only in the face of “necessity of self%defense* instant* overwhelming andleaving no choice of means and no moment for deliberation.”

R=%"na$ Arran=9nt(

0ollective self%defense is recognized not only in 7rticle 5! of the 0harter of theAnited 6ations but also in 7rt. 3II on 1egional 7rrangements “... provided that

such arrangements or agencies and their activities are consistent with theurposes and rinciples of the Anited 6ations )7rt. 5'* ;ec. ! of the 0harter of the Anited 6ations+.”

T) Ba$an! "' P"&r

Bne reason for the organization of regional arrangements is to provide for thebalance of power* which 3attel described as “an arrangement of affairs so that nostate shall be in position to have absolute mastery and dominion over others.”

&he maintenance of this balance of power has in a very real way contributed tointernational peace although* being an “armed peace*” it is far from the idealsought in the articles of faith of the Anited 6ations.

A==r((%"n D'%nd

Eefinition of agression as adopted by the A.6. 9eneral 7ssembly on Eecember !2* !$"2:




Art%!$ 1

A==r((%"n – is the use of armed force by a ;tate against the sovereignty*territorial integrity or political independence of another state* or in any other manner inconsistent with the 0harter of the Anited 6ations.

Art%!$

Any "' t) '"$$"&%n= a!t( +ua$%'y a( an a!t "' a=r((%"n

a. &he invasion or attack by the armed forces of a state of the territory of another state/

b. bombardment by the armed forces of a state against the territory of another state/

c. &he blackade of the ports or coasts of a state by the armed forces of another state/

d. 7n attack by the armed forces on land* sea or air forces* or marine or air fleetsof another state/

e. &he use of armed forces of one state in the territory of another state with theagreement of the receiving state* in contravention of the conditions provided for

in the agreement or any e@tension of their presence in such territory beyond thetermination of the agreement/

f. &he action of the state in allowing its territory* which it has placed at thedisposal of another state* to be used by that other state perpetrating an act of agression against a third state/ and*

g. &he sending by or on behalf of a state of armed force against another state of such gravity as to amount to the acts listed above* or its substantial involvementtherein.




CHAPTER @THE RIGHT OF INDEPENDENCE

;overeignty is the supreme* uncontrollable power inherent in a state by whichthat state is governed. It is “the supreme power of the ;tate to command andenforce obedience* the power to which* legally speaking* all interests arepractically sub4ect and all wills subordinate.

T&" A(#!t( "' S"-r%=nty

1. Intrna$ S"-r%=nty – refers to the power of the state to direct its

domestic affairs* as when it establishes its government* enacts laws for observance within its territory.

2. Etrna$ S"-r%=nty – signifies the freedom of the state to control itsown foreign affairs* as when it concludes treaties* makes war or peace*and maintains diplomatic and commercial relations. It is often refered asindependence.

Natur "' Ind#ndn!




Independence cannot be regarded as importing absolute freedom. It only means

freedom from control by any other state or group of states and not freedom fromrestrictions that are binding on all states forming the family of nations.

&hus* a state may not employ force or even the threat of force in its relations withother states because this is prohibited by 7rticle ' of the 0harter of the Anited6ations. It may adhere to the ma@im of acta ;unt ;ervanda. T) #r%n!%#$ "' 9ar $%bru9 will prevent it from arrogating to itself the e@clusive use of theopen seas to the detriment of other states. Ander the laws of neutrality* it mustacuisce in the e@ercise of certain belligerent rights even if this might impair itsown interests or those of its nationals.

Pa!ta Sunt Sr-anda – the observance of a state to treaties with other state ingood faith.

Intr-nt%"n

In addition* the state must abstain from intervention. Gven as it e@pects itsindependence to be respected by other states* so too must it be prepared torespect their own independence.

Intr-nt%"n – an act by which a state interferes with the domestic or foreignaffairs of another state or states through the employment of force or the threat of force.

&he use of force is only allowed under the 0harter of the Anited 6ations when itis e@ercised as an act of self%defense* or when it is decreed by the ;ecurity0ouncil as a preventive or enforcement action for the maintenance of international peace and security.

T) Dra=" D"!tr%n

&his doctrine was embodied in the =ague 0onvention of !$" through theprovision that “ the 0ontracting owers agree not to have recourse to armedforce for the recovery of contract debts claimed from the government by thegovernment of another country as being due to its nationals.

&his rule was* however* dissipated by the orter 1esolution.

P"rtr R("$ut%"n – intervention was permitted if the debtor state refused an




offer to arbitrate* prevented agreement on the compromis* or having agreedthereto* refused to abide by the award of the arbitrator.

CHAPTER 4THE RIGHT OF EUALIT<

In 7rticle ' of the 0harter of the Anited 6ations* it is announced that “theBrganization is based on the principle of the sovereign euality of all its,embers.”

In the provision of the ,ontevideo 0onvention of !$((* “states are 4uridicallyeual* en4oy the same rights* and have eual capacity in their e@ercise.”

E((n! "' E+ua$%ty

In international law* euality among states does not signify parity in physicalpower* political influence or economic status or prestige.

T) Pr%n!%#$ "' E+ua$%ty – all the rights of state* regardless of their number*must be obsreved or respected by the international community in the samemanner as rights of other states are observed and respected.

7ccordingly* all members of the Anited 6ations have each one vote in the9eneral 7ssembly* all votes having eual weight* and are generally eligible for positions in the various organs of the Anited 6ations. Gvery state has the right tothe protection of its nationals* to make use of the open seas* or to acuire or dispose territory.

Ander the rule of par in parem, non habet imperium* even the strongest state




state cannot assume 4urisidction over another state* no matter how weak.

L=a$ E+ua$%ty -. Fa!tua$ In+ua$%ty

ut even from the viewpoint of strictly legal rules* it is apparent that absoluteeuality among states is still a distant and well nigh impossible aspiration. Ander the 0harter of the Anited 6ations* for e@ample* non%procedural uestions aredecided by the ;ecurity 0ouncil only with the concurrence of the ig Five* any of which may defeat a pproposal through the e@ercise of the veto. &his is true alsowith respect to the ratification of any proposal to amend the 0harter.

ut this rule of euality itself sometime poses seriouys uestions of ineuality.

&his is so because it does not take into account the realities of international life*including the greater stakes of the more populous states in the decision of uestions involving the entire community of nations. ;uch decisions may affectthe interests* not of individual states as such* but of the whole of humanity itself without distinctions as to color* nationality or creed.




CHAPTER /

TERRITOR<

Trr%t"ry – the fi@ed portion of the surface of the earth inhabited by the people of the state.

7s previously observed* the territory must be big enough to provide for the needsof the population but should not be so e@tensive as to be difficult to administer or defend from e@ternal aggression.

A!+u%(%t%"n and L"(( "' Trr%t"ry

M"d %n t) A!+u%(%t%"n "' Trr%t"ry

!. by discovery and occupation'. by prescription(. by cession2. by sub4ugation and5. by accretion

M"d "' L"(%n= Trr%t"ry

!. by abandonment or dereliction'. by cession(. by sub4ugation2. by revolution and5. by natural causes




D%(!"-ry and O!!u#at%"n

Eiscovery and occupation is an original mode of acuisitionby which territory notbelonging to any state* or terra nullius* is placed under the sovereignty of thediscovering state. &he territory need not be uninhabited provided it can beestablished that the natives are not sufficiently civilized and can be considered aspossessing not rights of sovereignty but only rights of habitation.

-ike the open seas* outer space is res communis and not susceptible todiscovery and occupation.

R+u%(%t( "' :a$%d D%(!"-ry and O!!u#at%"n

!. ossession* and'. 7dministration

,ere possession will not suffice* as only an inchoate title of discovery is acuiredby the claimant state pending compliance with the second reuirement* which isthe administration of the territory. Btherwise* the title will lapse and the territorywill become res nullius again.

• “Eiscovery alone* without any subseuent act* cannot at the present time

suffice to prove sovereignty over the Island of almas....” )Island of almas 0ase+

• “esides the animus occupandi * the actual and not the nominal taking of

possession is necessary condition of occupation. &his taking of possession consists... steps to e@ercise e@clusive authority there.”)0lipperton Island 0ase+

Dr$%!t%"n

R+u%(%t( "' :a$%d Dr$%!t%"n

!. act of withdrawal* and'. the intention to abandon

=ence* where the forces of the state are driven away from the territory by thenatives* title is not thereby necessarily forfeited* as it may be that they intend toto return with the necessary reinforcements to suppress the resistance.

If such intention is not present* the territory itself becomes res nullius or terra

nullius* becoming open once again to the territorial ambitions of other states.




Pr(!r%#t%"n

&here is as yet no rule in international law fi@ing the period of possessionnecessary to transfer title to the territory from the former to the subseuentsovereign.

C((%"n

C((%"n – is a method by which territory is transferred by one state to another by voluntary agreement between them.

0ession may be in the form of sale* donation* barter or e@change* and even bytestamentary disposition.

Sub*u=at%"n

Sub*u=at%"n – is when* having been previously conuered or occupied in thecourse of war by the enemy* it is formally anne@ed to it at the end of the war.

R+u%(%t( "' :a$%d Sub*u=at%"n

!. conuest'. anne@ation

A!!rt%"n

A!!rt%"n – is a mode of acuiring territory based on the principle of accessio

cedat principal i. It is accomplished through both or natural or artificial processes.

C"9#"nnt( "' Trr%t"ry

Trr%tt"ry "' t) Stat C"n(%(t( "' t) F"$$"&%n=>

!. &errestrial Eomain'. ,aritime and Fluvial Eomain(. 7erial Eomain

A. T) Trr(tr%a$ D"9a%n




Trr(tr%a$ D"9a%n – refers to the land mass which may integrate* or

dismembered* or partly bounded by water* or consists of one whole island. Itmay also be composed of several islands* like the hilippines and Indonesia*which are known as mid%ocean archipelagoes* as distinguished from the coastalarchipelagoes like 9reece.

B. T) Mar%t%9 and F$u-%a$ D"9a%n

Mar%t%9 and F$u-%a$ D"9a%n – consists off the bodies of water within the landmass and the waters ad4acent to the coasts of the state up to a specified limit.

1. R%-r(

1ivers may be classified into:• national – situated completely in the territory of one state*

• multi%national – that flow through the territories of several states*

• international – that is navigable from the open sea and is open to the use

of vessels from all states* and• boundary – divides the territories of riparian states.

T)a$&= D"!tr%n – the boundary line is laid on the river* that is* on the center*not of the river itself* but of its main channel.

Hhere the boundary river changes its course by a gradual and normal process*such as accretion or erosion* the dividing line follows the new course/ but if thedeviation is violent is abrupt* as by avulsion* the boundary line will continue to belaid on the old bed of the river* in the absence of contrary agreement.

7s for the dividing line on a bridge across a boundary river* the same is laid onthe middle of the bridge regardless of the location of the channel underneath*unless otherwise provided by the riparian state.

1. Bay(

Bay – is a well%marked indentation whose penetration is in such proportion to thewidth of its mouth as to contain land%locked waters and constitute more than acurvature of the coasts.

7n indentation shall not* however* be regarded as a bay unless its area is aslarge as or larger than that of a semi%circle whose diameter is a line drawn acrossthe mouth of that indentation.




&he above rules do not apply to the so%called historic bays.

5. T) Trr%t"r%a$ Sa

Trr%t"r%a$ Sa – described as the belt of waters ad4acent to the coasts of thestate* e@cluding the internal waters in bays and gulfs* over which the state claimssovereignty and 4urisdiction.

&raditionally* the breadth of the territorial sea is reckoned at three nautical miles*or a marine league* from the low%water mark.

=owever* many states have since e@tended their territorial seas* so that no

uniform rule can be regarded as established at present in this regard.

. T) UN C"n'rn!( "' t) La& "' t) Sa

&hree international conferences had been called so far to formulate a new law of the sea.

&he first was held in !$5# at 9eneva* ;witzerland* and resulted in the adoptionof the 0onvention on the &erritorial ;ea and the 0ontiguous Kone* the0onvention of the =igh ;eas* and the 0onvention on Fishing and the -iving1esources of the =igh ;eas* and the 0onvention on the 0ontinental ;helf. It

failed however to define the breadth of the territorial sea. &he hilippines did notratify it because of the absence of provisions recognizing the archipelagodoctrine it was advocating.

&he second conference* which was held in !$C* also at 9eneva* likewise leftunresolved the uestion on the breadth of the territorial sea.

&he third conference* called in !$" by the Anited 6ations is still in progress.

0. T) P)%$%##%n Trr%t"r%a$ Sa

&he claim of the hilippines to its territorial sea is based on historic right or title or as it is often called t) traty $%9%t( t)"ry.

2. T) Ar!)%#$a=" D"!tr%n

&he hilippine position on the definition of its internal waters is commonly knownas the archipelago doctrine. &his is articulated in the second sentence of 7rticle Iof the !$#" 0onstitution* which follows:

“The national territory comprises the Philippine archipelago, with all theislands and waters embraced therein* and all the other territories belonging to




the hilippines by historic right or legal title...”Bur position is that all these islands should be considered one integrated whole

instead of being fragmented into separate units each with its own territorial sea.Btherwise* the water outside each of these territorial seas will be regarded ashigh seas and thus be open to all foreign vessels to the pre4udice of our economyand national security.

7n ar!)%#$a=" is a group of islands* including parts of islands* interconnectingwaters and other natural features which are so closely interrelated that suchislands* waters and other natural features form an intrinsic geographical*economic* and political entity* or which historically have been regarded as such.

=ence* in defining the internal waters of the archipelago* (tra%=)t ba($%n(

should be drawn to connect appropriate points of the outermost islandswithout departing radically from the general direction of the coast so that the entire archipelago shall be encompassed as one whole territory. &hewaters inside these baselines shall be considered internal and thus not sub4ect toentry by foreign vessels without the consent of the local state.

. Ba(%( "' t) Art%!$ I "' t) 1/4@ C"n(t%tut%"n

7rticle I of the !$#" 0onstitution was based on 1.7. (2C as amended by 1.7.6o. 522C declaring the hilippine territorial sea.

@. Mt)"d( "' d'%n%n= t) Trr%t"r%a$ Sa

T&" Mt)"d( D'%n%n= t) Trr%t"r%a$ Sa

(a) N"r9a$ ba($%n 9t)"d – the territorial sea is simply drawn from thelow%water mark of the coast* to the breadth claimed* following itssinuosities and curvatures but e@cluding the the internal waters in baysand gulfs.

(b) Stra%=)t ba($%n 9t)"d – straight lines are made to connectappropriate points on the coast without departing radically from its general

direction.

C. T) Ar%a$ D"9a%n

T) ar%a$ d"9a%n – the airspace above the terristrial domain and the maritimeand fluvial domain of the state* to an unlimited altitude but not including the outer space.

CHAPTER 16




JURISDICTION

Jurisdiction is the authority e@ercised by the state over persons and things withinor sometimes outside its territory* sub4ect to certain e@ceptions.

Gnra$ C$a((%'%!at%"n( "' Jur%(d%!t%"n

!. ersonal Jurisdiction'. &erritorial Jurisdiction

Sub*!t( "' Stat Jur%(d%!t%"n

!. its nationals'. the terrestrial domain(. the maritime and fluvial domain2. the continental shelf 5. the open seasC. the aerial domain". outer space#. other territories

Pr("na$ Jur%(d%!t%"n

Pr("na$ *ur%(d%!t%"n – is the power e@ercised by the state over its nationals. Itis based on the theory that a national is entitled to the protection of his statewherever he may be and is* therefore* bound to it by a duty of obedience andallegiance.

• 7rticle !5 of the 0ivil 0ode: “laws relating to family rights and duties* or to

the status* condition and legal capacity of persons* are binding uponcitizens of the hilippines* even though living abroad.”

•Under Article 16 of the Civil Code: “intestate and testaentar! s"ccession# both$ith res%ect to the other of s"ccession and to the ao"nt of s"ccessional ri&hts

and to the intrinsic validit! of testaentar! %rovisions# shall be re&"lated b! the

national la$ of the %erson $hose s"ccession is "nder consideration# $hatever a! be the nat"re of the %ro%ert! and re&ardless of the co"ntr! $herein said %ro%ert!

a! be fo"nd.'

• Jurisdiction to ta@ our citizens* even if not residing in the hilippines* is

also provided for in our Internal 1evenue 0ode for income received bythem “from all sources.”




Indeed* even an alien may be held sub4ect to the laws of a state whose nationalinterest he has violated* and notwithstanding that the offense was committed

outside its territory.

• 7rticle ' of the 1evised enal 0ode* for instance* punishes any person

who* whether in or outside our territory* should forge or counterfeithilippine currency* utter such spurious securities or commit any crimeagainst our national security or the law of the nations.

Trr%t"r%a$ Jur%(d%!t%"n

Gnra$ ru$> a state has 4urisdiction over all persons and property within its

territory.

&he 4urisdiction of the nation within its own territory is necessary* e@clusive andabsolute. It is susceptible of no limitation not imposed by itself )&he ;chooner G@change v ,cFaddon+.

E!#t%"n(>

!. Foreign states* heads of states* diplomatic representatives* and consuls toa certain degree/

• Foreign states and their heads are e@empt because of the sovereigneuality of states and on the theory that a contrary rule would disturbthe peace of nations. Eiplomats and consuls en4oy the e@emption inorder that they may have full freedom in the discharge of their officialfunctions.

!. Foreign state property engaged in non%commercial activities/

• y fiction of law* public vessels are regarded as e@tensions of the

territory of the foreign state.

!. 7cts of state/

• Gvery sovereign state is bound to respect the independence of every

other sovereign state* and the courts of one country will not sit in 4udgment on the acts of the government of another* done within its ownterritory.

!. Foreign merchant vessels e@ercising the rights of innocent passage or arrival under stress/




• Inn"!nt #a((a= – navigation through the territorial sea of the state

for the purpose of traversing that sea without entering internal waters*

or of proceeding to internal waters* as long as it is not pre4udicial to thepeace* good order or security of the coastal state.

• Arr%-a$ undr (tr(( – entrance to another state due to lack of

provisions* unseawothiness of the vessel* inclement weather* or other force ma4eure* like pursuit by pirates.

!. Foreign armies passing through or stationed in its territory with itspermission/

'. ;uch other persons or property over which it may* by agreement* waive

4urisdiction.

Land Jur%(d%!t%"n

Gverything found within the territorial domain of the state is under its 4urisdiction.6ationals and aliens* including non%residents* are bound by its laws* and noprocess from a foreign government can take effect for or against them within theterritory of the local state without its permission.

7lso* as against all other states* the local state has e@clusive title to all property

within its territory which it may own in its own corporate capacity or regulatewhen under private ownership through its police power for forcibly acuirethrough the power of eminent domain. ;uch property is also sub4ect to its ta@ingpower.

Mar%t%9 and F$u-%a$ Jur%(d%!t%"n

Gnra$ ru$> the internal waters of a state are assimilated to the land mass andsub4ected to the same degree of 4urisdiction e@ercised over the terrestrial

domain.

0ivil* criminal and administrative 4urisdiction is e@ercised by the flag state over itspublic vessels wherever they may be* provided they are not engaged incommerce.

Foreign merchant vessels docked in a local port or bay* 4urisdiction is e@ercisedover them by the coastal state in civil matters.

0riminal 4urisdiction is determined according to either the Gnglish rule or theFrench 1ule.




En=$%() ru$ – the coastal state shall have 4urisdiction over all offenses

committed on board* e@cept only where they do not compromise the peace of theport.

Frn!) ru$ – the flag state shall have 4urisdiction over all offenses committedon board such vessel* e@cept only where they compromise the peace of the port.

T) C"nt%=u"u( "n

C"nt%=u"u( "n – a protective 4urisdiction e@tending beyond the territorial sea*but not more than !' miles from the coast of the state. It is necessary to:

!. prevent infringement of its customs* fiscal* immigration or sanitaryregulations within its territory or territorial sea/ and*

'. punish infringement of the above regulations within its territory or territorialsea.

T) C"nt%nnta$ S)$'

C"nt%nnta$ S)$' – refers to a+ the seabed and subsoil of the submarine areasad4acent to the coast but outside the area of the territorial sea* to a depth of 'meters* or beyond that limit* to where the depth of super4acent waters admits theof the e@ploitation of the natural resources of the said areas/ and* b+ to theseabed and subsoil of similar areas ad4acent to the coasts of islands.

&he coastal state has the sovereign right to e@plore the continental shelf and toe@ploit its natural resources and for this purpose it may erect on it suchinstallations and euipment as may be necessary.

ut this right shall not affect the legal nature of the super4acent waters as openseas or of the airspace above such waters and their use as such by other statesshall not be impaired or disturbed.

T) Patr%9"n%a$ Sa

T) E!$u(%- E!"n"9%! "n ,EE7 "r Patr%9"n%a$ Sa – e@tends 'nautical miles from the coast or the baselines. 7ll living and non%living resourcesfound therein are claimed to belong e@clusively to the coastal state.

=owever* it has not yet been recognized as a rule of international law.




T) O#n Sa(

Gnra$ ru$> &he open seas or the high seas are res communis and availableto the use of all states for purposes of navigation* flying over them* layingsubmarine cables or fishing.

E!#t%"n(>

1. O-r %t( -(($(. &he flag state has 4urisdiction over its public vessels atall times* whether they be in its own territory* in the territory of other statesor on the open seas. ,erchant vessels* on the other hand* are under its

4urisdiction when they are within its territory* when 4urisdiction is waived or cannot be e@ercised by the territorial sovereign* or when such vessels areon the open seas.

2. O-r #%rat(. irates are enemies of all mankind and may be capturedon the open seas by the vessels of any state* to whose territory they maybe brought for trial and punishment. Hhere a pirate vessel attempts toescape into territorial waters of another state* the pursuing vessel maycontinue the chase but is under the obligation of turning over the pirates*when captured* to the authorities of the coastal state.

3. In t) r!%( "' t) r%=)t "' -%(%t and (ar!). Ander the laws of neutrality* the public vessels or aircraft of a belligerent state may visit andsearch any neutral merchant vessel on the open seas and capture it or itscargo if it is found or suspected to be engaged or to have engaged inactivities favorable to the other belligerent.

4. Undr t) d"!tr%n "' )"t #ur(u%t. If an offense is committed by aforeign merchant vessel within the territorial waters of the coastal state* itsown vessels may pursue the offending vessel into the open seas andupon capture bring it back to its territory. &he pursuit must be continuousor unabated/ otherwise* it will be deemed to have “cooled” and can no

longer be resumed.

Ar%a$ Jur%(d%!t%"n

&here are no traditional rules in international law regarding the rights of thesub4acent state to its aerial domain.

6onetheless* it may be said that the consensus appears to be that the local statehas 4urisdiction over the airspace above it to an unlimited height* or at the most




up to where outer space begins. 7ccordingly* and as a corollary to this rule* noforeign aircraft* civil or military* may pass through the aerial domain of a state

without its consent.

Gnra$ ru$> Ander the 0onvention on Bffenses and 0ertain Bther 7cts0ommitted on oard 7ircraft* it is the state of registration of the aircraft that has

4urisdiction over offenses and acts committed on board while it is in flight or over the high seas or any other area outside the territory of any state.

E!#t%"n(> Bther state may e@ercise 4urisdiction when%%%

!. &he offense has effect on the territory of such state/

'. &he offense has been committed by or against a national or permanentresident of such state/

(. &he offense is against the security of such state/

2. &he offense consists of a breach of any rules or regulations relating to theflight or maneuver of aircraft in force in such state/ and*

5. &he e@ercise of 4urisdiction is necessary to ensure the observance of anyobligation of such state under a multilateral intenational agreement.

46289209 Public International Law Notes 1

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