PIL Flashcards
Succession of States
-Political laws are abrogated while municipal laws remain in force.
-Treaties are discontinued except those dealing with local rights and duties
-All rights of the predecessor state are inherited but successor state can assume and reject liabilities at its discretion
Succession of Governments (ISRCV)
-The integrity of the State is not affected
-The state continues as the SAME international person but its lawful representative has changed
-All rights of the predecessor government are inherited by the successor
-Where the new government was organized through constiutional reform duly ratified in a plebiscite, all of the obligations of the predecessor government are assumed
-If the new government was established through violence, the new govt may reject purely personal or political obligations of the predecessor BUT NOT THOSE OBLIGATIONS CONTRACTED IN THE ORDINARY COURSE OF OFFICIAL BUSINESS
Independent States
Has freedom to direct and control foreign relations without restraint from other states
Dependent State
An entity, although a state, does not have full freedom in the direction of its external affairs
Suzerainty
The result of a concession from a state to a former colony that is allowed to be independent subject to the retention by the former sovereign of certain powers over external affairs of the latter
Protectorate
Established at the request of the weaker state for the protection by a stronger power
Neutralized
A state whose independence and sovereignty are guaranteed by an international treaty on the condition that such state obligates itself never take up arms against other states (XP: self defense) or enter into any obligation indirectly involved in a war
Holy See
The Holy See is an international person with which the Philippines has diplomatic ties
Colony
A dependent political community consisting of a number of citizens of the same country who have immigrated therefrom to inhabit another country BUT REMAIN SUBJECT TO THE MOTHER STATE
Dependency
A territory distinct from the country in which the supreme sovereignty resides but belongs rightfully to it and subject to the laws and regulations which the sovereignty may prescribe
Purpose of the UN (PHAM-D)
- Prevention of war
- Maintenance of international peace and security
- Development of friendly relations among members of the international community
- Attainment of international cooperation
- Harmony in the action of nations
Functions of UN / Security Council
- Primary responsibility to maintain international peace and security;
- Investigate disputes and call disputants to settle their differences through peaceful means;
- Recommend methods of adjustment of disputes;
- Determine existence of threats to peace, breach of peace, acts of aggression;
- Make appropriate recommendations; and
- Undertake preventive and enforcement actions
Countries in the security council
MAIN: France, USA, China, UK, Russia
ELECTIVE MEMBERS: 5 African or Asian, 2 Latin American, 2 Western European,1 Eastern European
Preventive Actions
Provisional measures to prevent a conflict from worsening and may involve the deployment of peacekeeping/ observers missions.
Enforcement actions
Deployment of sea, air and land forces or in the institution of a blockade. (Ex. PH sending forces to Afghanistan)
Only applicable in international disputes.
Current Secretary General
António Guterres from Portugal
Legal sovereignty (LRPTP)
Equal in law, rights of sovereignty, personality, territorial integrity, and political independence respected by others
Act of state doctrine
Every sovereign state is bound to respect the independence of every other state
Courts in one country will not sit in judgment on the acts of another done in the latter’s territory
Legal effects of sovereign equality on jurisdiction
International - a state cannot be sued or be compelled to arbitrate or mediate without its consent
Domestic - Domestic matters cannot be interfered with by other states
UN Charter Art. 2 (7)
Nothing in the UN charter shall be construed to authorize the UN to intervene in matters that are essentially within the domestic jurisdiction of any state
State Immunity
A state enjoys immunity from the exercise of jurisdiction by another state
XP: 1. It has given its consent
2. Waived immunity
3. Voluntarily submitted itself to the jurisdiction of the court
Immunity granted to merchant ships
The right of innocent passage - immunity from molestation while within another state’s territorial waters
- This does not grant them immunity from suit should they commit a criminal act in that jurisdiction
Immunity granted to warships and governmental ships
Covered by doctrine of state immunity
Governmental Functions
Compulsory functions which constitute the very bonds of society
Ex. Maintenance of peace and order
PIL Ministerial functions
Optional functions of the government intended for achieving a better life for the community
Ex. Undertaking to supply water for a price
Rationae Materiae
Immunity for public acts while done while in office
May still be invoked after a public officer has stepped down
Ex. Marcos cannot claim immunity for committing torture and killings when he was head of state
Rationae Personae
Immunity for private acts while done in office
May no longer be invoked when public officer has stepped down from office
Restrictive application of state immunity
This immunity is only applicable to governmental functions not ministerial functions
Par in parem imperium non habet
An equal has no power over the other
Immunity of International Organizations
This is granted because the functions they perform are so important as to merit the organizations and their staff privileges and immunities to allow them to perform their tasks more efficiently.
Territory
The fixed portion on the surface of the earth on which the state settles and over which is exercises supreme authority
Proof of sovereignty
Having one’s own territory is proof of sovereignty and an assertion of independence
It comes with a correlative duty to respect other state’s right to exercise sovereignty over their own territory
Art. 1 Sec. 1
The National territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of the terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves and other submarine areas. The water around between and connecting the islands of the archipelago, regardless of their breadth or dimension, form part of the internal waters of the Philippines.
Modes of acquisition
- Discovery and occupation
- Prescription
- Cession (by treaty)
- Conquest
- Accretion
Occupation
Formal gestures signifying the intent to occupy. Must be accompanied by acts tantamount to the peaceful exercise of sovereignty over a previously unclaimed territory
Prescription
Territory May also be acquired through continuous and uninterrupted possession over a long period of time
The pre-existing sovereign must have effectively abandoned its claim over the subject territory
Cession
Voluntary cession - treaty of sale or donation
Involuntary cession - ex. Treaty of Paris
Conquest
Threat or use of force against the territorial integrity or political independence of any state
This mode of acquisition is no longer recognized
Accretion
Increase in land area of the state either by natural or artificial means
Accretion vs Avulsion
Accretion involves gradual shift through natural means. May result in shift in boundaries
Avulsion sudden and dramatic shift. No shift in boundaries
Uti Possidetis Juris
Newly formed sovereign states should have the same borders as those of the preceding state
Contemporary standards on territory
- Effective occupation
- Consent
- Right to self-determination
Internal waters vs External Waters
INTERNAL- All waters on the landward side of the baselines of the territorial sea
EXTERNAL - All waters extending towards the sea from the baselines
Chicago Convention
The contracting parties recognize that every State has complete and exclusive sovereignty over the airspace above its territory
Applies only to civil aircraft
XP: Outer Space because it’s res communes
State Aircraft Restrictions
No State aircraft of a contracting party shall fly over the territory of another State or land thereon without authorization by special agreement
Chicago Convention - Power to Refuse
The right to refuse permission to the aircraft of other contracting States to take on in its territory PASSENGERS, MAIL and CARGO carried for hire and destined for another point in its territory
Chicago Convention - Power to Search
The right, roughly unreasonable delay, to search an survey on landing or departure AND
Inspect certificates and other documents as prescribed by the Chicago Convention
Documents to be carried by aircrafts CCLJREM
- Certificate of registration
- Certificates of airworthiness
- Appropriate licenses for each member of the crew
- Journey log book
- Aircraft radio station license
- List of names and places of embarkation and destination
- A manifest and detailed declaration of all its cargo
Jurisdiction under International Law
Power or authority exercised by a State over land, persons, property, transactions and events
Prescriptive Jurisdiction vs Enforcement Jurisdiction
P - Ability of a State to define its own laws. This power is generally unlimited
E - Ability of a state to enforce its own laws it has created. Limited by territory and nationality. Cannot exist without prescriptive jurisdiction
XP to immunity from suit
When the public officer acts so plainly outside of his power and authority that he cannot be said to have exercised discretion in determining whether or not he had the right to act
Define PIL
The law that deals with the conduct of states and international organizations, their relations with each other and relations with natural or juridical persons
Natural Law School on PIL
There is a natural and universal principle of right and wrong which is inherent in every person. Since States are made up of people, it is also bound by natural law
Positivist Theory on PIL
Binding force of IL is derived from the agreements of states bound by it
Eclectic/ Groatian School
IL is a mix of Natural and Positive Law. Should there be a conflict, natural law shall prevail
Realist Theory
States are in a constant struggle for power, each state can be reasonably assumed to be acting in their own interests
Austinian Dillemma
States lack an effective enforcement mechanism since there is no supreme sovereign over the other
Primary Sources of International Law
- International Treaties and Conventions
- International Customs
- General Principles of Law
Secondary sources of international law
- Judicial Decisions
- Writings of Publicists
How does a custom become an international custom
- Prevailing practice by a number of states;
- Repeated over a considerable period of time;
- Attended by opinio juris or a sense of a legal obligation
Two elements of customs
State practice and opinio juris
Persistent Objector
One who objects to a practice from the early stages of the practice and maintains said objection consistently
XP: when the practice has attained the status of jus cogens
Relationship between treaty and custom
GR: Treaty is superior to a custom
Xp: The custom involved is jus cogens
Jus Cogens
Literally means “compelling law”. It designates norms from which no derogation is permitted by way of particular agreements
Subject vs object in International Law
Subject - an entity that has rights and responsibilities under IL. It can be a proper party In transactions involving international law
Object - person or thing in which rights are held and obligations are assumed by the subject
Characteristics of Statehood
- Ability to enter into treaties and other relations with other states
- Exclusive competence over purely domestic affairs
- Freedom from jurisdiction of international tribunals
- Theoretically equal to other states
Characteristics of Statehood
- Ability to enter into treaties and other relations with other states
- Exclusive competence over purely domestic affairs
- Freedom from jurisdiction of international tribunals
- Theoretically equal to other states
Doctrine of Hot Pursuit
If an offense is committed by a foreign merchant vessel within the territorial waters of a coastal state, the state may pursue the offending vessel into open seas and bring it back to its territory for punishment.
Pursuit must be continuous and unabated
XP: ship entered its own territorial sea
Principle of universality
State has jurisdiction over offenses considered as universal crimes regardless of where and who committed it
Protective principle
State has jurisdiction over acts committed abroad (nationals or foreigners) which are prejudicial to its National security, political independence or other vital interests
Nationality Principle
State has jurisdiction over its nationals anywhere in the world, based on the principle that a national is entitled to the protection of the state wherever he might be
Waters and the jurisdictions applicable
Territorial Waters
- exercise of sovereignty
- 12nm from baseline
Contiguous Zone
- jurisdiction to enforce customs, fiscal, immigration, and sanitation laws
-24 nm
EEZ
-exploitation and ownership over all living and non living resources
-200 nm
Continental shelf
-exploration of resources of the sea, seabed, subsoil
-350 nm
Jus Cogens
That part of customary international law which has the status of a peremptory norm of international law
No derogation from which is permitted and May only be modified by a norm with the same character
Opinio Juris
A state’s belief that it is acting due to a legal obligation
Erga Omnes
Obligations owed by states towards the community of states as a whole
Anticipatory self defense requirements
- Use of force must be necessary because threat is imminent and peaceful methods are not an option
- Response must be proportionate to the threat
Examples of subjects under international law (SCHUMBII)
- States
- Colonies
- Holy See
- UN
- Mandate and trust territories
- Belligerent communities
- International admin bodies
- Individuals
Conditions of belligerency
- Organized civil government having control and supervision over the armed struggle
- Serious and widespread struggle with the outcome uncertain
- Occupation of a substantial portion of the national territory
- Willingness on part of the rebels to observe the rules or customs of international law
Functions and duties of diplomats
Pg 87
Persona non grata
Pg 88
