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War As an Action
Armed contention between the public forces of states or other
belligerent communities, implying the employment of violence among
the parties as a means of enforcing their respective demands upon
each other
As a Status War may exist even without the use of force as when
one state formally refuses to be governed
by the laws of peace in its relations with another state even if
actual hostilities have not taken place between them
Bellum Justum
War may be a just war if it is a reaction to an international
delict
- Outlawed already by the UN Charter which expressly prescribes
the abstinence from the use of force in the solution of
international disputes. Laws of War
Declaration of Paris of 1856 Warfare at Sea
Hague conventions of 1899 Use of expanding bullets and
asphyxiating gases
Hague conventions of 1907 Opening of hostilities, laws and
customs of warfare on land, conversion of mechant ships into
warships etc. Geneva Convention of 1925
Use of asphyxiating, poisonous, and other gases and of
bacteriological methods of warfare Geneva Convention of 1929
Treatment of the sick and wounded and of prisoners of war
Declaration of London of 1936
Use of submarines against merchant vessels Geneva Convention of
1949
Amelioration of the sick and wounded on land on sea and
treatment of POW and protection of civilians
How are violations of the laws of war sanctioned?
1. Protest lodged by one belligerent, usually accompanied or
followed by an appeal to world opinion against the unlawful acts of
warfare committed by the other belligerent
2. Reparation for damages caused by the defeated belligerent 3.
Punishment of war criminals
Commencement of War Hague Conventions of 1907: Hostilities must
not commence without a previous and explicit warning, in the form
either
a. Reasoned declaration of war b. An ultimatum with conditional
declaration o War is supposed to commence on the date specified to
the enemy. o War is deemed to have commenced upon the commission of
an act of force by at least on of the
belligerents as an act of war
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Effects Of The Outbreak Of War Laws of peace cease to regulate
the relations of the belligerents and are superseded by the laws of
war Diplomatic and consular relations between the belligerents are
terminated and their respective
representatives are allowed to return to their own countries
Treaties of political nature, such as treaties of alliance, are
automatically canceled, but those which are
precisely intended to operate during war are activated. Treaties
of technical or administrative matters are suspended.
Individuals are impressed with enemy character: As nationals, as
domiciliary, and as participants in the activities
Enemy public property found in the territory of the other
belligerent at the outbreak of the hostilities is, with certain
exceptions, subject to confiscation
Combatants Members of the armed forces, except those not engaged
in combat like chaplains and medical personnel Irregular forces,
provided that: a) They have a commander responsible for them;
b)They wear a fixed
distinctive sign recognizable at a distance; c) Carry arms
openly; d) Conduct their operations in accordance with the laws and
customs of war
Inhabitants of unoccupied territory who, on approach of the
enemy, spontaneously take arms to resist the invading troops
without having time to organize themselves
Officers and crew of merchant vessels who forcibly resist attack
Treatment of POW
1. Right to be accorded the proper respect commensurate with
their rank 2. Right to adequate food and clothing 3. Right to safe
and sanitary quarters 4. Right to medical assistance 5. Right to
refuse to give military information or render military service
against their own state 6. Right to communicate with their
families
Basic Principles Of The Rules Of Warfare
Military Necessity Belligerents may, subject to the other two
principles, employ any amount and kind of force to compel the
complete submission of the enemy with the least possible loss of
lives, time and money
Principle of Humanity Prohibits the use of any measure that is
not absolutely necessary for the purposes of the war, such as
poisoning of wells and weapons, the employment of dumdum or
expanding bullets and asphyxiating gases, the destruction of works
of art and property devoted to religious or humanitarian purposes,
the bombing of undefended places, and attack of hospital ships
Principle of chivalry Basis of such rules as those that require
the belligerents to give proper warning before launching a
bombardment or prohibit the use of perfidy in the conduct of
hostilities
Kinds Of Warfare
1. Land 2. Sea 3. Air - Separately or simultaneously
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Theatre of War Place where the hostilities are actually
conducted
Region of war
Greater area where the belligerents may lawfully engage each
other Belligerent Occupation
Territory is deemed occupied when it is actually placed under
the authority of the hostile army, but this occupation is limited
only to the area where such authority has been established and can
be effectively exercised
Belligerent occupation does not result in transfer or suspension
of the sovereignty of the legitimate government although it may at
the moment be unable to exercise it
Posliminium
That in which persons or things taken by the enemy are restored
to the former state on coming actually into the power of the nation
in which they belong
Jus postliminuim: reinstatement of the authority of the
displaced government once control of the enemy is lost over the
territory affected
NON-HOSTILE INTERCOURSE
1. Flag of truce white flag carried by an individual authorized
by one belligerent to enter into communications with the other
2. Cartels agreements to regulate intercourse during war on such
matters as postal and telegraphic communications, the reception of
flags of truce, and the exchange of prisoners
3. Passport written permission given by the belligerent
government or its authorized agent to the subjects of the enemy
state to travel generally in belligerent territory
4. Safe-conduct pass given to an enemy subject or to an enemy
vessel allowing passage between defined points
5. Safeguard protection granted by a commanding officers either
to enemy persons or property within his command
6. License to trade permission given by the competent authority
to individuals to carry on trade even though there is a state of
war
SUSPENSION OF HOSTILITIES
o Suspension of arms temporary cessation of the hostilites by
agreement of the local commanders for the purpose of gathering the
wounded and the burial of the dead
o Armistice suspension of all hostilities within a certain area
in the entire region of the war for the purpose of arranging the
terms of peace
o Cease-fire unconditional stoppage of hostilities by order of
an international body for the purpose of employing peaceful means
of settling the differences between the belligerents
o Truce Cease-fire with conditions attached o Capitulation
surrender of military forces, places, or disticts in accordance
with the rules of
military honor TERMINATION OF WAR
1. Simple cessation of hostilities 2. Treaty of peace 3. Defeat
of one of the belligerents
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The United Nations History 1. THE ST. JAMES PALACE
DECLARATION
The only true basis of enduring peace is the willing cooperation
of free peoples in a world in which, relieved of the menace of
aggression, all may enjoy economic and social security;
It is our intention to work together, and with other free
peoples, both in war and peace, to this end.
...A Joint Declaration by the United States of America, the
United Kingdom of Great Britain and Northern Ireland, the Union of
Soviet Socialist Republics, China, Australia, Belgium, Canada,
Costa Rica, Cuba, Czechoslovakia, Dominican Republic, El Salvador,
Greece, Guatemala, Haiti, Honduras, India, Luxembourg, Netherlands,
New Zealand, Nicaragua, Norway, Panama, Poland, South Africa,
Yugoslavia. The Governments signatory hereto, Having subscribed to
a common program of purposes and principles embodied in the Joint
Declaration of the President of United States of America and the
Prime Minister of the United Kingdom of Great Britain and Northern
Ireland dated August 14, 1941, known as the Atlantic Charter. Being
convinced that complete victory over their enemies is essential to
defend life, liberty, independence and religious freedom, and to
preserve human rights and justice in their own lands as well as in
other lands, and that they are now engaged in a common struggle
against savage and brutal forces seeking to subjugate the world,
DECLARE: (1) Each Government pledges itself to employ its full
resources, military or economic, against those members of the
Tripartite Pact and its adherents with which such government is at
war. (2) Each Government pledges itself to cooperate with the
Governments signatory hereto and not to make a separate armistice
or peace with the enemies. The foregoing declaration may be adhered
to by other nations which are, or which may be, rendering material
assistance and contributions in the struggle for victory over
Hitlerism. DONE at Washington January First, 1942 2. MOSCOW
DECLARATION
30 October 1943, the Moscow Declaration was signed by Vyaches
Molotov, Anthony Eden, Cordell Hull and Foo Ping Shen, the Chinese
Ambassador to the Soviet Union. 3. TEHERAN DECLARATION In December
1943, two months after the four-power Declaration, Roosevelt,
Stalin and Churchill, meeting for the first time at Teheran, the
capital of Iran, declared that they had worked out concerted plans
for final victory.
7 October 1944 - representatives of China, Great Britain, the
USSR and the United States met for a business-like conference at
DUMBARTON OAKS, a private mansion in Washington, D. C.
Proposal for the structure of the world organization was
submitted by the four powers to all the United Nations
governments
25 April 25 1945 - United Nations Conference on International
Organization (San Francisco)
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26 June 1945 50 nations signed the UN Charter (Poland, which was
unable to send a representative to the conference due to political
instability, signed the charter on October 15, 1945)
24 October 1945 charter was ratified by the Governments of the
Republic of China, France, the USSR, the United Kingdom, and the
United States, and by a majority of the other 46 signatories.
MEMBERSHIP AND OFFICE
193 member states Headquarters is situated in New York Six
official languages are used at the UN: Arabic, Chinese, English,
French, Russian, and Spanish. The current secretary general is Ban
Ki-moon of South Korea.
OBJECTIVES OF THE UN
1. To keep peace throughout the world. 2. To develop friendly
relations between nations. 3. To work together to help people live
better lives, to eliminate poverty, disease and illiteracy in
the world, to stop environmental destruction and to encourage
respect for each other's rights and freedoms.
4. To be a center for helping nations achieve these aims.
PRINCIPLES
1. Sovereign equality 2. Pacta Sunt Servanda 3. Settlement of
international disputes by peaceful means 4. Refrain from the threat
or use of force against the territorial integrity or political
independence
of any state 5. Assistance to UN and refrain from giving
assistance to any state against which the United
Nations is taking preventive or enforcement action 6.
Applicability to non-member states 7. Non-intervention in matters
which are essentially within the domestic jurisdiction
MEMBERSHIP QUALIFICATIONS
1. Must be a state 2. Must be peace-loving 3. Must accept
obligations contained in the charter 4. Able and willing to carry
out obligations
PERMANENT MEMBERS
1. China 2. France 3. Russia 4. United Kingdom 5. United
States
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ORGANS OF THE UN General Assembly Economic and Social Council
Secretariat International Court of Justice Security Council
Trusteeship Council
SECURITY COUNCIL
5 permanent members 10 rotating members with a term of 2 years
(5 from African and Asian states, 2 from Latin-
American States, 2 from Western European and other states)
Responsible for the maintenance of international peace and
security.
Functions of Security Council
1. to investigate any dispute or situation which might lead to
international friction; 2. to recommend methods of adjusting such
disputes or the terms of settlement; 3. to formulate plans for the
establishment of a system to regulate armaments; 4. to determine
the existence of a threat to the peace or act of aggression and to
recommend
what action should be taken; 5. to call on Members to apply
economic sanctions and other measures not involving the use of
force to prevent or stop aggression; 6. to take military action
against an aggressor; 7. to recommend the admission of new Members;
8. to exercise the trusteeship functions of the United Nations in
"strategic areas"; 9. to recommend to the General Assembly the
appointment of the Secretary-General and,
together with the Assembly, to elect the Judges of the
International Court of Justice. GENERAL ASSEMBLY
The General Assembly (GA) is the main deliberative, policymaking
and representative organ of the UN. Composed of 193 members
Decisions on important questions, such as those on peace and
security, admission of new members and
budgetary matters, require a two-thirds majority. Decisions on
other questions are by simple majority. Each country has one
vote.
ECONOMIC AND SOCIAL COUNCIL
promoting higher standards of living, full employment, and
economic and social progress; identifying solutions to
international economic, social and health problems; facilitating
international cultural and educational cooperation; and encouraging
universal respect for human rights and fundamental freedoms.
THE INTERNATIONAL COURT OF JUSTICE (ICJ)
The International Court of Justice (ICJ) is the principal
judicial organ of the United Nations (UN). It was established in
June 1945 by the Charter of the United Nations and began work in
April 1946. The seat of the Court is at the Peace Palace in The
Hague (Netherlands).
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The Courts role is to settle, in accordance with international
law, legal disputes submitted to it by States and to give advisory
opinions on legal questions referred to it by authorized United
Nations organs and specialized agencies.
The Court is composed of 15 judges, who are elected for terms of
office of nine years by the United Nations General Assembly and the
Security Council.
Its official languages are English and French. TRUSTEESHIP
COUNCIL
Responsible for supervising the administration of Trust
Territories placed under the Trusteeship System. Major goals :
o to promote the advancement of the inhabitants of Trust
Territories and their progressive development towards
self-government or independence.
The aims of the Trusteeship System have been fulfilled to such
an extent that all Trust Territories have attained self-government
or independence, either as separate States or by joining
neighbouring independent countries.
The Council suspended operation on 1 November 1994, with the
independence of Palau, the last remaining United Nations trust
territory, on 1 October 1994.
THE SECRETARIAT
International staff working in duty stations around the world
carries out the diverse day-to-day work of the Organization.
It services the other principal organs of the United Nations and
administers the programs and policies laid down by them.
At its head is the Secretary-General, who is appointed by the
General Assembly on the recommendation of the Security Council for
a five-year, renewable term.
The duties carried range from administering peacekeeping
operations to mediating international disputes, from surveying
economic and social trends and problems to preparing studies on
human rights and sustainable development. Secretariat staff also
inform the world's communications media about the work of the
United Nations; organize international conferences on issues of
worldwide concern; and interpret speeches and translate documents
into the Organization's official languages.
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Treaties Formal agreement, usually but not necessarily in
writing, which is entered into by states or
entities possessing the treaty-making capacity, for the purpose
of regulating their mutual relations under the law of nations
May also refer to conventions, declarations, covenants, acts,
and concordats Functions of Treaties
Enable parties to settle actual and potential conflicts Makes it
possible for the parties to modify the rules of international
customary law by means of
optional principles or standards Lead to a transformation of
unorganized international society into one which may be
organized
on any chosen level of social integration Frequently provide the
humus for the growth of international customary law
Essential requisites of a valid treaty
1. Entered into by parties with the treaty making capacity 2.
Through their authorized representatives 3. Without the attendance
of duress, fraud, mistake, or other vice of consent 4. On any
lawful subject-matter 5. In accordance with their respective
constitutional processes
Treaty making process
Negotiation Signature Ratification Exchange of Instruments
Binding effect of treaties
Pacta tertiis nec nocent nec prosunt - A treaty does not create
either obligations or rights for a third State without its
consent
Treaties are only binding on the contracting parties and other
states who later on sign by a process known as accession
Instances when treaties are made applicable even to third
parties
1. Treaty is merely a formal expression of customary
international law 2. As provided in the UN Charter: non member
states must act in accordance with the principles
of the charter in so far as may be necessary for the maintenance
of international peace and security
3. Where the treaty expressly extends its benefits to
non-signatory states PACTA SUNT SERVANDA
Agreements must be kept Every treaty in force is binding upon
the parties to it and must be performed by them in good
faith
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Despite supervening hardships, the parties must comply with
their commitments and perform treaty obligations in good faith
REBUS SIC STANTIBUS
Things thus standing A tacit condition attached to all treaties
to the effect that they will no longer be binding as soon
as the state of facts and conditions upon which they were based
changes to a substantial degree
Limitations to the doctrine of rebus sic stantibus 1. Applies
only to treaties of indefinite duration 2. Vital change must have
been unforeseen or unforeseeable and should not have been caused
by
the party invoking the doctrine 3. Must be invoked within a
reasonable time 4. Cannot operate retroactively upon the provisions
of the treaty already executed prior to the
change of circumstances Termination of treaties
1. Expiration of term 2. Accomplishment of the purpose 3.
Impossibility of performance 4. Loss of the subject-matter 5.
Desistance of the parties, through express mutual consent, exercise
of the tight of denunciation
(desuetude)- when allowed 6. Novation 7. Extinction of one of
the parties 8. Rebus sic stantibus 9. Outbreak of war 10. Voidance
of the treaty
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The Rome Statute
ICC was established in 1998 Entered into Force 1 July 2002 In
accordance with Art. 126 of Rome Statute: 60 days after 60 states
had become parties to the
statute through ratification or accession
In 2011, 108 states had ratified the Rome Statute. Independent
Organization, not linked to UN Composed of 18 Judges
Four Goals
1. Justice and Punishment 2. Deterrence 3. Record-Keeping 4.
Progressive Development of International Law
Jurisdiction
Genocide Crimes Against Humanity War Crimes Aggression
Genocide
For the purpose of this Statute, genocide means any of the
following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such:
a) Killing members of the group; b) Causing serious bodily or
mental harm to members of the group; c) Deliberately inflicting on
the group conditions of life calculated to bring about its
physical
destruction in whole or in part; d) Imposing measures intended
to prevent births within the group; e) Forcibly transferring
children of the group to another group.
Crimes Against Humanity
For the purpose of this Statute, crime against humanity means
any of the following acts when committed as part of a widespread or
systematic attack directed against any civilian population, with
knowledge of the attack
1. Murder; 2. Extermination; 3. Enslavement; 4. Deportation or
forcible transfer of population; 5. Imprisonment or other severe
deprivation of physical liberty in violation of fundamental
rules
of international law; 6. Torture; 7. Rape, sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization, or
any
other form of sexual violence of comparable gravity;
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8. Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender as
defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection
with any act referred to in this paragraph or any crime within the
jurisdiction of the Court;
9. Enforced disappearance of persons; 10. The crime of
apartheid; 11. Other inhumane acts of a similar character
intentionally causing great suffering, or serious
injury to body or to mental or physical health. Definitions
Attack directed against any civilian population means a course of
conduct involving the multiple commission of acts referred to in
paragraph 1 against any civilian population, pursuant to or in
furtherance of a State or organizational policy to commit such
attack; Extermination includes the intentional infliction of
conditions of life, inter alia the deprivation of access to food
and medicine, calculated to bring about the destruction of part of
a population; Enslavement means the exercise of any or all of the
powers attaching to the right of ownership over a person and
includes the exercise of such power in the course of trafficking in
persons, in particular women and children; Deportation or forcible
transfer of population means forced displacement of the persons
concerned by expulsion or other coercive acts from the area in
which they are lawfully present, without grounds permitted under
international law; Torture means the intentional infliction of
severe pain or suffering, whether physical or mental, upon a person
in the custody or under the control of the accused; except that
torture shall not include pain or suffering arising only from,
inherent in or incidental to, lawful sanctions; Forced pregnancy
means the unlawful confinement of a woman forcibly made pregnant,
with the intent of affecting the ethnic composition of any
population or carrying out other grave violations of international
law. This definition shall not in any way be interpreted as
affecting national laws relating to pregnancy; Persecution means
the intentional and severe deprivation of fundamental rights
contrary to international law by reason of the identity of the
group or collectivity; The crime of apartheid means inhumane acts
of a character similar to those referred to in paragraph 1,
committed in the context of an institutionalized regime of
systematic oppression and domination by one racial group over any
other racial group or groups and committed with the intention of
maintaining that regime; Enforced disappearance of persons means
the arrest, detention or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political
organization, followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of
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those persons, with the intention of removing them from the
protection of the law for a prolonged period of time. War
Crimes
For the purpose of this Statute, war crimes means: 1. Grave
breaches of the Geneva Conventions of 12 August 1949, namely, any
of the following
acts against persons or property protected under the provisions
of the relevant Geneva Convention
2. Other serious violations of the laws and customs applicable
in international armed conflict, within the established framework
of international law, namely, any of the following acts
3. In the case of an armed conflict not of an international
character, serious violations of article 3 common to the four
Geneva Conventions of 12 August 1949, namely, any of the following
acts committed against persons taking no active part in the
hostilities, including members of armed forces who have laid down
their arms and those placed hors de combat by sickness, wounds,
detention or any other cause
4. Paragraph 2 (c) applies to armed conflicts not of an
international character and thus does not apply to situations of
internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.
5. Other serious violations of the laws and customs applicable
in armed conflicts not of an international character, within the
established framework of international law, namely, any of the
following acts
6. Paragraph 2 (e) applies to armed conflicts not of an
international character and thus does not apply to situations of
internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature. It
applies to armed conflicts that take place in the territory of a
State when there is protracted armed conflict between governmental
authorities and organized armed groups or between such groups.
Important consideration on Jurisdiction
TEMPORAL: The crime occurred after 1 July 2002 (or if a state
joins the Rome Statute later, the date the Statute comes into force
for that state)
TERRITORIAL: The crime occurred on the territory of a state
party PERSONAL: The person accused of the crime is a national of a
state party REFERRAL: The Security Council has referred the matter
under its Chapter VII Charter powers
Penalties
1. Court may impose one of the following penalties on a person
convicted of a crime a) Imprisonment for a specified number of
years, which may not exceed a maximum of 30
years OR b) A term of life imprisonment when justified by the
extreme gravity of the crime and the
individual circumstance of the convicted person 2. In
addition:
a) A fine under criteria provided b) Forfeiture of proceeds,
property and assets derived directly or indirectly from that
crime
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Where will they serve their sentence? A sentence of imprisonment
shall be served in a State designated by the Court from a list
of
States which have indicated to the Court their willingness to
accept sentenced persons Does the ICC work?
Dependent on willingness of states to comply
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The Right of Legation & Consuls
The right of the State to send and receive diplomatic missions,
which enables States to carry on friendly intercourse.
Governed by the Vienna Convention on Diplomatic Relations.
Agents of Diplomatic Intercourse
Head of State Diplomatic Envoys Foreign Office
Agents of Diplomatic Intercourse
1. Head of State Represents, the sovereignty of the State, and
enjoys the right to special protection for
his physical safety and the preservation of his honor and
reputation. His quarters, archives, property and means of
transportation are inviolate under the principle of exterritorialy.
He is immune from criminal and civil jurisdiction, except when he
himself is the plaintiff, and is not subject to tax or exchange or
currency restrictions
2. Diplomatic Envoys Head of Mission
a. Ambassadors or nuncios accredited to Heads of State, and
other heads of mission of equivalent rank;
b. Envoys, ministers and internuncios, accredited to Heads of
State; and c. Charges daffaires, accredited to Ministers of Foreign
Affairs.
Diplomatic Staff, composed of those engaged in diplomatic
activities and are accorded diplomatic rank.
Administrative and Technical Staff, consisting of those employed
in the administrative and technical service of the mission.
Service Staff, i.e., those engaged in the domestic service of
the mission.
3. Foreign Office The actual day-to-day conduct of foreign
affairs is usually entrusted to a Foreign Office,
headed by a Secretary or a Minister, who, in proper cases, may
make binding declarations on behalf of his government
Diplomatic Corps
All diplomatic envoys accredited to the same State form a body
known as the Diplomatic Corps
The doyen du corps or head of this body is usually the Papal
Nuncio, if there is one (as this is usually applicable only in
catholic states), or the oldest ambassador, or, in the absence of
ambassadors, the oldest minister plenipotentiary.
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Who appoints envoys? Sec. 16, Art. VII, Philippine Constitution
President appoints The president sends and instructs the diplomatic
and consular representatives, and his
prerogative to determine the assignment of the countrys
diplomatic representatives cannot be questioned
But Freedom of Choice
The sending State is not absolutely free in the choice of its
diplomatic representatives, especially heads of mission, because
the receiving State has the right to refuse to receive as envoy of
another State a person whom it considers unacceptable.
Enquiry + Agrement = Agreation
Commencement of Diplomatic Mission Envoy presents himself at the
receiving State, generally armed with the following papers:
1. Lettre de creance (letter of credence), with the name, rank
and general character of the mission, and a request for favorable
reception and full credence;
2. Diplomatic passport authorizing his travel; 3. Instructions,
which may include a document of full powers (pleins pouvoirs]
authorizing him
to negotiate on extraordinary or special business; and 4.
Cipher, or code or secret key, for communications with his
country.
Duties and Functions of Diplomatic Missions
Representing the sending State in the receiving State Protecting
in the receiving State the interests of the sending State and its
nationals, within the
limits allowed by international law Negotiating with the
government of the receiving State Ascertaining, by all lawful
means, the conditions and developments in the receiving State
and
reporting these to the sending State Promoting friendly
relations between the sending State and the receiving State, and
developing
their economic, cultural and scientific relations Diplomatic
immunities and privileges
Personal inviolability Inviolability of premises and archives
Right of official communication Immunity from local jurisdiction
Exemption from taxes and customs duties
Personal Inviolability
The person of the diplomatic representative is inviolable; he
shall not be liable to any form of arrest or detention. The
receiving State shall treat him with due respect and take all steps
to prevent any attack on his person, freedom or dignity.
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The UN Convention on the Prevention and Punishment of Crimes
Against Internationally Protected Persons considers crimes against
diplomatic agents as international, not political, in nature.
However, the diplomatic envoy may be arrested temporarily in
case of urgent danger, such as when he commits an act of violence
which makes it necessary to put him under restraint for the purpose
of preventing similar acts; but he must be released and sent home
in due time. Inviolability of premises and archives
The premises occupied by a diplomatic mission, as well as the
private residence of the diplomatic agent, are inviolable.
The agents of the receiving State may not enter without the
consent of the envoy, except in extreme cases of necessity, e.g.,
when the premises are on fire, or where there is imminent danger
that a crime of violence is to be perpetrated in the premises.
Such premises cannot be entered or searched, and neither can the
goods, records and archives be detained by local authorities even
under process of law.
The service of writs, summons, orders or processes within the
premises of the mission or residence of the envoy is prohibited.
Even if a criminal takes refuge within the premises, the peace
officers cannot break into such premises for the purpose of
apprehending him. The fugitive should, however, be surrendered upon
demand by local authorities, except when the right of asylum
exists. But if it is the ambassador himself who requests local
police assistance, this privilege cannot be invoked.
The Vienna Convention provides that the receiving State has the
special duty to protect diplomatic premises against invasion,
damage, or any act tending to disrupt the peace and dignity of the
mission. However, in Reyes v. Bagatsing, 125 SCRA 553, the Supreme
Court held as invalid the denial by the Mayor of the application
for a permit to hold a public assembly in front of the U.S.
Embassy, there being no showing of a clear and present danger that
might arise as a result of such a rally.
The premises of the mission, their furnishings and other
property thereon, and the means of
transport of the mission shall be immune from search,
requisition, attachment or execution. Inviolability also extends to
the archives, documents, papers and correspondence of the mission
at all times and wherever they may be, and the receiving State has
the duty to respect and protect their confidential character.
Unless the right is recognized by treaty or by local usage, an
envoy should not permit the premises of his mission or his
residence to be used as a place of asylum for fugitives from
justice. An envoy may, however, in the interests of humanity,
afford temporary shelter to persons in imminent peril of their
lives, such as those fleeing from mob violence.
Right of official communication
The right of an envoy to communicate with his government fully
and freely is universally recognized. The mission may employ all
appropriate means to send and receive messages, whether ordinary or
in cipher, by any of the usual modes of communication or by means
of diplomatic couriers. Because of this right, the diplomatic pouch
and diplomatic couriers shall also enjoy inviolability.
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Immunity from local jurisdiction Under the 1961 Vienna
Convention on Diplomatic Relations, a diplomatic agent shall
enjoy
immunity from criminal jurisdiction of the receiving State.
Thus, he cannot be arrested, prosecuted and punished for any
offense he may commit, unless
his immunity is waived. But immunity from jurisdiction does not
mean exemption from local law; it does not presuppose a right to
violate the laws of the receiving State.
Diplomatic privilege does not import immunity from legal
liability but only exemption from local jurisdiction
The diplomatic agent also enjoys immunity from the civil and
administrative jurisdiction of the receiving State, and thus, no
civil action of any kind may be brought against him, even with
respect to matters concerning his private life.
As a rule, his properties are not subject to garnishment,
seizure for debt, execution and the like, except in the following
cases:
a) any real action relating to private immovable property
situated in the territory of the receiving State, unless the envoy
holds it on behalf of the sending State for the purposes of the
mission;
b) an action relating to succession in which the diplomatic
agent is involved as executor, administrator, heir or legatee as a
private person and not on behalf of the sending State; and
c) an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State outside
his official functions.
This immunity also means that the diplomatic agent cannot be
compelled to testify, not even by
deposition, without the consent of his government, before any
judicial or administrative tribunal in the receiving State.
(However, see Minucher v. Court of Appeals, G.R. No. 97765,
September 24, 1992, where the Supreme Court held that the act of
private respondent Drug Enforcement Agent of the U.S. in the
frame-up of petitioner was unauthorized and could not be considered
performed in the discharge of official functions, despite a belated
diplomatic note from the US Embassy; thus, suit against the private
respondent was upheld, being a suit against him in his personal and
private capacity. See also Shauf v. Court of Appeals, 191 SCRA 713,
where it was held that the immunity does not protect a public
official who commits unauthorized acts, inasmuch as such
unauthorized acts are not acts of State. Accordingly, he may be
sued for such unlawful acts in his private capacity.)
Subject to the rule on reciprocity, Republic Act No. 75 declares
as void any writ or process issued
out or prosecuted by any person in any court of the Philippines,
or by any judge or justice, whereby the person of any ambassador or
public minister of any foreign State, authorized and received as
such by the President, or any domestic servant of any such
ambassador or minister, is arrested or imprisoned, or his goods or
chattels distrained, seized or attached; and penalties are imposed
for violation of this provision. However, this privilege is not
granted to: [a] citizens/inhabitants of the Philippines, where the
process is founded upon a debt contracted before his employment in
the diplomatic service; and [b] domestic servants of the ambassador
or minister whose names are not registered with the Department of
Foreign Affairs.
As part of the envoys immunity from local jurisdiction, the
children born to him while he possesses diplomatic status are
regarded as born in the territory of his home State.
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Exemption from taxes and customs duties Under the Vienna
Convention, diplomatic agents are exempt from all dues and taxes,
whether
personal or real, national, regional or municipal, except the
following: i. indirect taxes normally incorporated in the price of
goods or services
ii. dues and taxes on private immovable property situated in the
territory of the receiving State, unless he holds it on behalf of
the sending State for purposes of the mission
iii. estate, succession or inheritance taxes levied by the
receiving State; iv. dues and taxes on private income having its
source in the receiving State and capital taxes on
investments in commercial ventures in the receiving State; v.
charges levied for specific services rendered; and
vi. registration, court or record fees, mortgage dues and stamp
duty, with respect to immovable property.
The Vienna Convention also provides for exemption from all
customs duties and taxes of articles
for the official use of the mission and those for the personal
use of the envoy or members of the family forming part of his
household, including articles intended for his establishment.
Baggage and effects are entitled to free entry and, normally,
exempt from inspection; articles addressed to ambassadors,
ministers, charge daffaires are also exempt from customs
inspection. Other privileges Includes:
1. Freedom of movement and travel in the territory of the
receiving State 2. Exemption from all personal services and
military obligations 3. The use of the flag and emblem of the
sending State on the diplomatic premises and the
residence and means of transport of the head of mission.
Duration of immunities/privileges
The privileges are enjoyed by the envoy from the moment he
enters the territory of the receiving State, and shall cease only
the moment he leaves the country, or on expiry of a reasonable time
in which to do so; although with respect to official acts, immunity
shall continue indefinitely.
These privileges are available even in transitu, when traveling
through a third State on the way to or from the receiving State.
Waiver of immunities
Diplomatic privileges may be waived, but as a rule, the waiver
cannot be made by the individual concerned since such immunities
are not personal to him.
Waiver may be made only by the government of the sending State
if it concerns the immunities of the head of mission; in other
cases, the waiver may be made either by the government or by the
chief of mission.
Waiver of this privilege, however, does not include waiver of
the immunity in respect of the execution of judgment; a separate
waiver for the latter is necessary. Termination of diplomatic
mission
1. Death 2. Resignation 3. Removal or abolition of office
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4. Dismissal by the receiving State 5. War between the receiving
and the sending States 6. Extinction of the State.
Consular Relations Consuls
State agents residing abroad for various purposes but mainly in
the interest of commerce and navigation. Kinds
1. Consules missi are professional and career consuls, and
nationals of the appointing state
2. Consules electi ae selected by the appointing state either
from its own citizens or from among nationals abroad.
Ranks
1. Consul General 2. Consul 3. Vice Consul 4. Consular agent
Appointment
Two important documents are necessary before the assumption of
consular functions, namely: a) Letters patent [lettre de
provision], which is the letter of appointment or commission which
is
transmitted by the sending state to the Secretary of Foreign
Affairs of the country where the consul is to serve; and
b) Exequatur, which is the authorization given to the consul by
the sovereign of the receiving state, allowing him to exercise his
function within the territory. Functions
1. Those that commerce and navigation 2. Issuance of passport
and visa (permit to visit his country) 3. Such as are designed to
protect nationals of the appointing state (e.g. authentication of
documents,
register births, solemnize marriage etc.) Immunities and
privileges
Under the 1963 Vienna Convention on Consular Relations: 1.
freedom of communication in cipher or otherwise; 2. inviolability
of archives, but not of the premises where legal processes may be
served and arrests made; 3. exempt from local jurisdiction for
offenses committed in the discharge of official functions, but
not
other offenses except minor infractions; 4. exempt from
testifying on official communications or on matters pertaining to
consular functions; 5. exempt from taxes, customs duties, military
or jury service; 6. and may display their national flag and emblem
in the consulate. These immunities and privileges are also
available to the members of the consular post, their families
and
their private staff. Waiver of immunities may be made by the
appointing state.
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Termination of consular mission
1. Usual modes of terminating official relationship a. Removal
b. Resignation c. Death d. Expiration of term
2. Withdrawal of the exequatur 3. Extinction of the state 4.
War.
*** Severance of consular relations does not necessarily
terminate diplomatic relations.
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Neutrality
The status of a third state in not taking side in any way
whatsoever when other states are at war
- Absolute neutrality virtually impossible in the modern
world.
Neutrality Neutralization
Dependent solely on the attitude of the neutral state, which is
free to join any of the belligerents at any time it sees fit
Result of a treaty wherein the duration and the other conditions
of the neutralization are agreed upon by the neutralized state and
other powers
Governed by the general law of nations Governed by the
neutralization agreement
Obtains only during war Intended to operate in time of peace as
well as in time of war
Only states may become neutral Portions of states, like islands,
rivers, and canals may be neutralized
Laws of neutrality `Define:
1. The relations of the belligerent states with the neutral
state 2. The relations of the belligerent states with the nationals
of the neutral state - International Customary law - Declaration of
Paris of 1856 - Hague Conventions of 1907 - Unratified declaration
of London of 1909
Relations of Belligerent States and Neutral States
Neutral State Right and duty to abstain from taking part in the
hostilities and from giving assistance to
either belligerent Prevent its territory and other resources
from being used in the conduct of the
hostilities Acquiesce in certain restrictions and limitations
that the belligerents may find necessary
to impose, especially in connection with international commerce
Belligerents
Bound to respect the status of the neutral state, avoiding any
act that will directly or indirectly involve in in their
conflict
Submit to any lawful measures it may take to maintain or protect
its neutrality Use of Neutral Territories
o War activities by or on behalf of any of the belligerents may
not be undertaken in the territory of the neutral state without
infringement of its neutrality
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o Neutral territory is inviolable and cannot be used by the
belligerents for the movement of their troops, the transport of war
supplies, the erection of wireless stations for exclusively
military purposes, recruiting of soldiers, and the undertaking of
military operations in general
o Passage of sick and wounded troops is allowed through a
neutral state, provided personnel and materials of war are not also
carried
o Persons bound for enlistment in the belligerent armies may
cross the neutral frontiers if they
do so individually or separately and not as a body o Neutral
state itself may give refuge to troops from the belligerent forces
but must intern them
as far as possible, at a distance from the theater of war o
Escaped POW need not be detained by the neutral state but must be
assigned a place of
residence if they are allowed to remain o Neutrality of a state
is not affected by the mere passage through its territorial waters
of
warships or prizes belonging to belligerents; however, they may
not enter neutral ports, harbors, and roadsteads except only in
cases of unseaworthiness, lack of fuel or provisions, or stress of
weather
o Where vessels from both belligerents are in neutral waters at
the same time, a period of 24 hours must elapse between the
departure of the first vessel and the departure of the second, the
order being their time of arrival. Not more than 3 vessels from any
belligerent shall be allowed.
o Territorial waters of a neutral state must never be used as
asylum for belligerent vessels under pursuit or attack by the
enemy
o Passage of military aircraft belonging to the belligerents I
not allowed across the airspace of a neutral state.
o Where a belligerent aircraft is forced to land on neutral
territory, the same should be detained and its officers and crew
interned
o Neutral state cannot give any form of direct assistance to any
of the belligerents in the conduct of the hostilities
e.g. Sending of military contingents, extension of loans, sale
of supplies of war o Neutral state is not obliged to prevent the
export from or transit through its territory of war
supplies purchased from private traders by the belligerents in
the ordinary course of commerce Relations of Belligerent states
with nationals of neutral states
Neutral states are free to allow their nationals to deal, in
their private capacity, with any of the belligerents
Individuals dealing with belligerents will not affect the
neutrality of their state Visit and Search
Belligerent warships and aircraft have the right to visit and
search neutral merchant vessels on the high seas for the purpose of
determining whether they are in any way connected with the
hostilities
Contraband
Term applied to goods which, although neutral property, may be
seized by a belligerent because the are useful for war and are
bound for a hostile destination
May be absolute or conditional or free list
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Contrabands are subject to condemnation
Doctrine of ultimate consumption goods intended for civilian use
which may ultimately find their way to and be consumed by the
belligerent forces are also liable to seizure on the way
Doctrine of infection if contraband is shipped together with
innocent goods belonging to the same owner, they may also be
seized
Doctrine of ultimate destination liability of contraband to
capture is determined not by their ostensible but their real
destination
Doctrine of continuous voyage when goods are reloaded at the
intermediate port on the same vessel
Doctrine of continuous transport when goods are reloaded on
another vessel or other form of transportation
Blockade
Hostile operation by means of which the vessels and aircraft of
one belligerent prevent all other vessels, including those of
neutral states, from entering or leaving the ports or coasts of the
other belligerent, the purpose being to shut off the place from
international commerce and communication with other states
Pacific Blockade Applies only to the vessels of the blockaded
state and not the vessels of other states Requisites for a valid
blockade
1. Binding (communicated to the neutral states) 2. Effective
(maintained by adequate force so as to make ingress to or egress
from the port
dangerous) 3. Established by the proper authorities of the
belligerent government (usually the head of state) 4. Limited only
to the territory of the enemy (not extended to neutral places or
international
rivers 5. Impartially applied to all states alike
Unneutral service
Consists of acts, of a more hostile character than carriage of
contraband or breach of blockade which are undertaken by merchant
vessels of a neutral state in aid of any of the belligerents
Right of Angary
A belligerent may, upon payment of just compensation, seize, use
or destroy, in case of urgent necessity for purposes of offenses or
defense, neutral property found in its territory, in enemy
territory, or on the high seas
Requisites:
a. Property is in the territory under the control and
jurisdiction of the belligerent b. There is urgent necessity for
the taking c. Just compensation is paid to the owner
Termination of Neutrality
Neutral state joins the war Upon conclusion of peace
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Nationality and statelessness
Nationality Tie that binds an individual to his state, from
which he can claim protection and whose laws he
is obliged to obey Membership in a political community with all
it concomitant rights and obligations
Acquisition of nationality
1. Birth Jus soli Jus sanguinis 2. Naturalization
Naturalization
Process by which a foreigner acquires, voluntarily or by
operation of law, the citizenship of another state
Kinds 1. Direct 2. Derivative
Direct Naturalization
1. By individual proceedings, usually judicial, under general
naturalization laws 2. By special act of the legislature, often in
favor of distinguished foreigners who have rendered
some notable service to the local state 3. By collective change
of nationality (en masse) as a result of cession or subjugation 4.
By adoption of orphan minors as nationals of the state where they
are born
Derivative naturalization Conferred:
1. On the wife of the naturalized husband 2. On the minor
children of the naturalized parent 3. On the alien woman upon
marriage to a national (only if woman has all the qualifications
and
non of the disqualifications for naturalization)
Statelessness
Condition or status of an individual who is born without any
nationality or who loses his nationality without retaining or
acquiring another
e.g. Child born in a state where only jus sanguinis is
recognized to parents whose state only observe jus soli rule.
WARUNITED NATIONSTREATIESROME STATUTESRight of Legation &
ConsulsNeutralityNationality and statelessness