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Public International Law Notes
Public International Law Notes
COURSE OUTLINE
I. PRELIMINARY CONSIDERATIONS
- body of rules & principles which are recognized as legally binding and governs the
relations of states and other entities with one another (as between international organizations,
between international organizations and states, between international organizations and states
and the people).
1. Principle of comity
2. Principle of reciprocity/mutuality
3. Principle of independence
4. Principle of equality of states
E. Theories About International Law
- there are certain normative principles that are true or self evident and which exists
independently of their codification or enforcement by human beings.
- naturalists maintain that the law of nations is binding upon states because it is a branch
of great law of nature, the sum of those principles which ought to control human conduct, being
founded on the very nature of man as a rational and social being.
2. Positivist School
- the basis of obligation of international law is founded in the CONSENT OF STATES.
- This school of thoughts provides that consent of states is given:
3. Eclectic/Groatian School
The schools of study of international law are the basis of the obligation in international
law.
1. Direct Consent
- international law is based upon the direct consent of States upon their individual
acceptance of its principles and rules.
2. Implied Consent
- a fiction to account for the acceptance of the great body of general principles and specific rules
that had come to form the body of customary law.
3. Mutuality of Interest
- international law is a subjective law; its binding force depends upon mutuality of interest which
could only be maintained by altering from time to time such rules as it might be no longer to the
interest of the parties to observe.
4. Necessity
- the fact that nations have common interest constitutes the actual community of states and at the
same time imperatively demands a rule of law so that international law may be said to be based
upon the very necessity for its existence.
1. Consular law
2. Diplomatic law
3. International Aviation law
4. International criminal law
5. International environmental law
6. International human right law
7. International humanitarian law
8. International space law
9. International trade law
10. law of state responsibility
11. Rules according to higher law
12. UN Conventions on the law of the Sea
13. Use of force continuum
- regulates comity of states in giving effect in one to the municipal laws of another
relating to private persons.
- PRINCIPLE: One country gives respect and give effect to the laws of another so
far as can be done consistently with its own interest.
1. Customary
2. Conventional
3. General International Law
* In International Tribunal the international law will prevail over Municipal law.
** In a municipal tribunal, one must distinguish if conflicts involve international law and
foreign international law in which case international law prevails;
** Municipal law prevails if conflicts involve conflicts between municipal law and
international law.
- views international law and national law as part of single legal system with domestic
law derived from the broader framework provided by international law.
2. Dualism
- considers international law and internal law of states as wholly separate legal systems,
the former creating obligations only among sovereign nations and the latter allowing each state
to determine the means and form by which it carries our its obligations.
- Municipal law, when in conflict with PIL is given effect in municipal courts, the reason
being that such courts are organs of municipal law and are accordingly bound by it in all
circumstances.
- the fact that international law has been made part of the law of the land does not mean
to imply it is primary over national or municipal law.
- in Doctrine of Incorporation, PIL is given standing equal but not superior to national
legislative enactments.
DOCTRINE OF TRANSFORMATION
- requires legislative action to make the treaty enforceable in the municipal sphere.
- Municipality law expressly adopts an international law thru an act of legislation.
- The doctrine observed in treaties
DOCTRINE OF INCORPORATION
- Considers rules of international law as forming part of the law of the land and no further
legislative action is needed to make such rules applicable in the domestic sphere.
- the doctrine observed in customary international law.
ADOPTION DOCTRINE
HARMONIZATION DOCTRINE
- in states where Constitution is the highest law of the land, both statutes and treaties may be
invalidated if they are in conflict with the Constitution.
- In the Philippines, the Supreme Court may declare a treaty unconstitutional if it is in conflict
with the Constitution.
U. World Politics
V. Related Cases
i. The Interhandel Case (Decision of the International Court of Justice, March 21, 1949)
Facts
Kuroda, in his petition, argues that the Military Commission is not a valid court because the law
that created it, Executive Order No. 68, is unconstitutional. He further contends that using as
basis the Hague Conventions Rules and Regulations covering Land Warfare for the war crime
committed cannot stand ground as the Philippines was not a signatory of such rules in such
convention. Furthermore, he alleges that the United States is not a party of interest in the case
and that the two US prosecutors cannot practice law in the Philippines.
Issue
Ruling
The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office
and prescribing rules on the trial of accused war criminals, is constitutional as it is aligned with
Sec 3,Article 2 of the Constitution which states that The Philippines renounces war as an
instrument of national policy and adopts the generally accepted principles of international law as
part of the law of the nation. The generally accepted principles of international law includes
those formed during the Hague Convention, the Geneva Convention and other international
jurisprudence established by United Nations. These include the principle that all persons,
military or civilian, who have been guilty of planning, preparing or waging a war of aggression
and of the commission of crimes and offenses in violation of laws and customs of war, are to be
held accountable. In the doctrine of incorporation, the Philippines abides by these principles and
therefore has a right to try persons that commit such crimes and most especially when it is
committed againsts its citizens. It abides with it even if it was not a signatory to these
conventions by the mere incorporation of such principles in the constitution.
The United States is a party of interest because the country and its people have been equally, if
not more greatly, aggrieved by the crimes with which the petitioner is charged for. By virtue of
Executive Order No. 68, the Military Commission is a special military tribunal and that the rules
as to parties and representation are not governed by the rules of court but by the very provisions
of this special law.
On the 3rd issue, the court ruled that the appointment of the two American attorneys is not
violative of our national sovereignty. It is only fair and proper that the U.S. which has submitted
the vindication of crimes against her government and her people to a tribunal of our nation
should be allowed representation in the trial of those very crimes. The lest that we could do in
the spirit of comity is to allow this representation in said trial.
Facts: RA 1180 An Act to Regulate The Retail Business prohibits foreigners and foreign
owned corporations to engage in the retail business/trade in the Philippines. Petitioner assails the
Act contending it violates the Treaty of Amity between the Philippines and China and is
unconstitutional.
Issue: Whether or not RA 1180 a valid exercise of police power of the State.
Held: The court held that RA 1180 is a valid exercise of the police power of the State since such
sovereign power of the State could not be bargained through any Treaty or contract especially
when the intent of such legislation is to remedy a real and actual danger to the national economy
due to the increasing dominance and control of aliens in the retail trade in the country.
iv. Phil. Association of Free Labor Unions (PAFLU) et al. v Secretary of Labor et al.,
February 27, 1969
Paquete Habana.; The Lola, 175 U.S. 677 (1900), was a landmark United States Supreme Court
case that reversed an earlier court decision allowing the capture of fishing vessels under Prize
(law). Its importance rests on the fact that it integrated Customary international law with
American law, perhaps the quintessential position of those who hold a monist perspective of
international law.
In April 1898 two fishing vessels, the Paquete Habana, and the Lola separately left Cuban ports
in Havana in order to fish. The two vessels were eventually captured by US Naval vessels as part
of Admiral William T. Sampson's blockade of Cuba, who was ordered to execute the blockade
'in pursuance of the laws of the United States, and the law of nations applicable to such cases.'
The vessels were placed within Cuba's territorial waters at the onset of the Spanish-American
War and then taken to Key West, where both vessels were eventually auctioned by the district
court.
Admiral Sampson justified the seizures by stating that most fishing vessels, flying under the
Spanish banner were manned by excellent seamen, "liable for further service" as naval reserves,
an asset that could eventually be used against US interests in the Spanish-American War.
The owners of the vessels however made an appeal to the circuit courts, citing a long held
tradition by nations of exempting fishing vessels from prize capture in times of war. This
"tradition", a primary example of customary international law, dates back from an order by
Henry IV in 1403, and has more or less been observed by a large majority of States ever since.
At the time of capture both vessels had no evidence of aiding the enemy, and were unaware of
the US naval blockade. No arms were found on board, and no attempts were made to either run
the blockade or resist capture.
The United Supreme Court, which cited lengthy legal precedents established to support the
existence of a customary international law that exempted fishing vessels from prize capture
eventually found the capture of both vessels as "unlawful and without probable cause", reversed
the District Court's decision, and ordered the proceeds of the auction as well as any profits made
from her cargo to be restored to the claimant, "with damages and costs".
This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a
decision of this Court on July 30, 1949. "The petitioner Boris Mejoff is an alien of Russian
descent who was brought to this country from Shanghai as a secret operative by the Japanese
forces during the latter's regime in these Islands. Upon liberation, he was arrested as a Japanese
spy by U. S. Army Counter Intelligence Corps. Thereafter, the People's Court ordered his
release. But the Deportation Board taking his case up found that having no travel documents,
Mejoff was an illegal alien in this country, and consequently referred the matter to the
immigration authorities. After the corresponding investigation, the Immigration Board of
Commissioners declared on April 5, 1948 that Mejoff had entered the Philippines illegally in
1944, without inspection and admission by the immigration officials at a designated port of entry
and, therefore, it ordered that he be deported on the first available transportation to Russia. The
petitioner was then under custody, he having been arrested on March 18, 1948. In October 1948,
after repeated failures to ship this deportee abroad, the authorities moved him to Bilibid Prison at
Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner
of Immigration believes it is for the best interests of the country to keep him under detention
while arrangements for his departure are being made. Two years having elapsed since the
aforesaid decision was promulgated, the Government has not found ways and means of removing
the petitioner out of the country, and none are in sight, although, it should be said in fairness to
the deportation authorities that it was through no fault of theirs that no ship or country would
take the petitioner.
Issue:
Whether or not Boris Mejoff should be released from prison pending his deportation.
Ruling:
The protection against deprivation of liberty without due process of law, and except for crimes
committed against the laws of the land, is not limited to Philippine citizens but extends to all
residents, except enemy aliens, regardless of nationality. Moreover, Sec. 3, Art. II of the
Constitution of the Philippines "adopts the generally accepted principles of international law as
part of the law of the Nation." And in a resolution entitled, "Universal Declaration Of Human
Rights," and approved by the General Assembly of the United Nations, of which the Philippines
is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all
other fundamental rights as applied to all human beings were proclaimed. It was there resolved
that "all human beings are born free and equal in degree and rights" (Art. 1); that "everyone is
entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, nationality or social
origin, property, birth, or other status" (Art. 2); that "every one has the right to an effective
remedy by the competent national tribunals for acts violating the fundamental rights granted him
by the Constitution or by law" (Art. 8); that "no one shall be subjected to arbitrary arrest,
detention or exile" (Art. 9 ); etc. Premises considered, the writ will issue commanding the
respondents to release the petitioner from custody upon these terms: that the petitioner shall be
placed under the surveillance of the immigration authorities or their agents in such form and
manner as may be deemed adequate to insure that he keep peace and be available when the
Government is ready to deport him. The surveillance shall be reasonable and the question of
reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for
decision in case of abuse. No costs will be charged.
source: http://rabbit-icecold.blogspot.com/
Facts
Retired Justice Jose B.L. Reyes, in behalf of the Anti-Bases Coalition, sought for a permit from
the City of Manila to hold a peaceful march and rally on October 26, 1983 starting from Luneta
to the gates of the United States embassy. The objective of the rally was to peacefully protest the
removal of all foreign military bases and to present a petition containing such to a representative
of the Embassy so it may be delivered to the United States Ambassador. This petition was to
initially compel the Mayor of the City of Manila to make a decision on the application for a
permit but it was discovered that a denial has already been sent through mail. It also included a
provision that if it be held somewhere else, permit may be issued. The respondent mayor alleges
that holding the rally in front of the US Embassy is a violation of the resolutions during the
Vienna Convention on Diplomatic Relations adopted in 1961 and of which the Philippines is a
signatory. In the doctrine of incorporation, the Philippines has to comply with such generally
accepted principles of international law as part of the law of the land. The petitioner, on the other
hand, contends that the denial of the permit is a violation of the constitutional right of the
freedom of speech and expression.
Issue
Whether or not the Anti-Bases Coalition should be allowed to hold a peaceful protest rally in
front of the US Embassy
Ruling
The Supreme Court ruled to allow the rally in front of the US Embassy to protect the exercise of
the rights to free speech and peaceful assembly and on the ground that there was no showing of
the existence of a clear and present danger of a substantive evil that could justify the denial of the
permit. These rights are not only assured by our constitution but also provided for in the
Universal Declaration of Human Rights. Between the two generally accepted principles of
diplomatic relations and human rights, the former takes higher ground. The right of the freedom
of expression and peaceful assembly is highly ranked in the scheme of constitutional values.
Source: http://pil-rizalyn.blogspot.com/2008/06/jbl-reyes-vs-bagatsing-gr-no-65366.html
Facts:
In 1882 the Congress passed an act providing that a duty of fifty cents should be collected for
each and every passenger who was not a citizen of the United States, coming from a foreign port
to any port within the United States. Individuals and steamship companies brought suit against
the collector of customs at New York, Mr. WH Robertson, for the recovery of the sums of
money collected. The act was challenge on the grounds that it violated numerous treaties of the
US government with friendly nations.
Issue:
WON the act is void because of the conflict with the treaty.
Ruling:
A treaty is a compact between independent nations, which depends for its enforcement upon the
interest and honor of the governments that are parties to a treaty. Treaties that regulate the
mutual rights of citizens and subjects of the contracting nations are in the same category as acts
of Congress. When these rights are of such a nature as to be enforced by a court of justice, the
court resorts to the treaty as it would to a statute. However, a constitution gives a treaty no
superiority over an act on congress. In short, so far as a treaty made by the United States with
any foreign nation can become the subject of judicial cognizance in the courts of this country, it
is subject to such acts as Congress may pass for its enforcement, modification, or repeal.
Facts:
Merchants were importing sugar from San Domingo, and when they arrived at the custom house
in NY, they claimed b/c of the treaty btwn US & San Domingo, that the goods should be
admitted duty free. The collector at the port refused, and the merchants were made to pay
$21,936 in duties. Merchants then brought this claim to get back the duties paid. Merchants (P)
argued that the treaty btwn US and San Domingo promised to provide most favored nation
treatment to imports from San Domingo. The most favored nation treatment was from a treaty
btwn US and the Hawaiian Islands, where certain goods, including sugar, were exempt from
dutycollection. Collector of the port (D) argued that he treated the goods as dutiable articles
under the acts of Congress.
Issue:
Whether a treaty supersedes conflicting acts of Congress. -Not necessarily, both are binding.
Notes Hierarchy - last in time rule Here the act of congress has trumped an earlier treaty
Dualism again Domestically, we care about checks and balances, that treaty no longer has any
effect But in international realm, this is a problem, b/c we are not honoring the treaty with
Dominican Republic Breaching treaty - can be taken to ICJ, etc. Example of dualist -
domestic vs. international obligations
Source http://dcomfortroom.blogspot.com/2009/12/whitney-v-robertson-124-us-190-1888.html
Direct Sources
i. International Conventions and Treaties
- most abundant sources of PIL
- between parties of treaties, the stipulations constitute the law between them.
- ex: Vienna Convention on the Law of Treaty
ii. International Customs
- custom exists when there is a clear and continuous habits of doing certain things develop under
the conviction that it is obligatory and right.
- International Court of Justice held that customary rule mist be based on constant and
uniform usage.
iii. General Principles of law
- recognized by civilized nations
- Ex: Res judicata, prescriptions, due process, law of nature, estoppel, ex aequo et bono (fair and
equity).
i. Direct sources
ii. Indirect, secondary, subsidiary sources
D. Related Cases
NATIONALITY
- the bond that unites a person to a given state which constitutes his membership in the particular
state, giving him a claim to the protection of that state and subjects him to the obligations created
by the laws of that state.
- in International Law, the term nationality is used in place of citizenship which is understood in
municipal law as being possessed of the full rights and privileges of membership in a political
community.
ii. Rules on Multiple Nationalities (1930 Hague Convention on Conflict of Nationality Laws)
ARTICLE I. It is for each state to determine under it's own law who are its nationals. This
law shall be recognized by other States in so far as it is consistent with international conventions,
international customs, and the principles of law generally recognized with regards to nationality.
ARTICLE II. Any questions as to whether a person possesses the nationality of a particular
State shall be determined in accordance with the law of that State.
ARTICLE III. A person having 2 or more nationalities may be regarded as it's national by
each of the States whose nationality he possesses.
ARTICLE IV. S State may not afford diplomatic protection to one of its nationals against a
State whose nationality such person also possesses.
ARTICLE V. Within a Third State, a person having multiple nationalities shall be treated as
if he had only one. The Third State State shall, of the nationalities which any such person
possesses, recognize exclusively in it's territory either:
1. The nationality of the country in which he is habitually and principally resident, or
2. The nationality of the country with which in the circumstances he appears to be in
fact most closely connected - DOCTRINE OF EFFECTIVE NATIONALITY.
ARTICLE VI. A person possessing two nationalities acquired without any voluntary act on
his part. May renounce on of them with the authorization of the State whose nationality he
desires to surrender. This authorization may not be refused in the case of a person who has his
habitual and principal residence abroad, if the conditions laid down in the law of the State whose
nationality he desires to surrender are satisfied.
- Within a Third State, a person having multiple nationalities shall be treated as if he had only
one. The Third State State shall, of the nationalities which any such person possesses, recognize
exclusively in it's territory either:
1. The nationality of the country in which he is habitually and principally resident, or
2. The nationality of the country with which in the circumstances he appears to be in
fact most closely connected
- a State may prohibit its nationals from changing their nationality under certain circumstances.
- ex: C.A. No. 63 (Act providing for the ways in which Philippine Citizenship may be lost or re-
acquired) which provides that Filipino citizen may lose his citizenship by subscribing to an oath
of allegiance to support the constitution or laws of a foreign country upon attaining 2 years of
age or more; Provided however that a Filipino may not divest himself of Philippine citizenship in
any manner while the Republic of the Philippines is at war with any country.
- no one might transfer his allegiance to another state without the consent of the state which had
first claim upon him.
- the basis of the Doctrine of Indelible Allegiance
- an entity directly possessed with personality with the rights and obligations in the international
legal order
- ex: sovereign state as Philippines ( with capacity to sue in the International Court of Justice or
may be sued in international tribunal)
B. Composite state
B.1. Federal States (United States of America, united states of Switzerland)
- exists when the central or federal government exercises authority over both the
various states in the Union and the citizens thereof.
- regarded as an INTERNATIONAL PERSON
- have its own governmental machineries and absorbs all individual states associated
together.
B.2. Confederation
- has some power over it's individual state but not over the individual citizens of the
member states.
- not regarded as an INTERNATIONAL PERSON, each of the member state being
represented by its own delegate.
- loose union or alliance formed through a treaty among various states, each of which
is fully sovereign and independent.
1. Dependent states
-subjected to control & sovereignty of some superior state/s in the conduct of their external &
foreign affairs.
- Rebels and insurgents are organized group with no rights under the international law but if civil
strife threatens to interfere with autonomy of foreign intercourse and tends to jeopardize
sovereignty of the state over the insurgent community certain insurgent rights may be tacitly
admitted.
- if the act is piracy then it is private in character and ends are not political and no insurgent
rights arise.
- parent state still liable for acts committed by the insurgent community within the jurisdiction of
said parent state even if foreign state admits existence of insurgent rights.
- if hostile acts are committed by insurgents against a foreign state the latter may choose to
punish them or turn them over to the parent state.
- foreign states ought to refrain from interfering in hostilities between parent state and insurgent
community.
- COLONY is a dependent community with a number of citizens but remain subject to mother
state.
- DEPENDENCY is a territory distinct from country in which the supreme sovereign power
resides but belonging rightfully to it subject to laws and regulations which the sovereign may
think proper to prescribe.
MANDATES - former territorial possessions of states defeated in the First World War and
placed under control of League of Nations. They are afforded the chance to develop
economically and socially by more advanced nations.
- private corporations fall under private international law but are also involved in public
international law when in time of war their property and other rights are impaired or when
maritime law has been infringed.
- vested with international personality as they are beyond the control and authority of any
particular state including the region in which seat of the organization may be situated.
A. State defined
- group of people capable of procreation and sekf defense living in a definite territory (must be a
land not sea) possessed of government to which inhabitants render obedience.
Basis
- existence presupposes its right to survive which is predicated not only to physical maintenance
of its territorial integrity but also physical expansion that follows valid acquisition of territories.
When its existence is in jeopardy it has a right of self preservation.
3. cession
5. accretion
1. Abandonment (must be physical abandonment of the property with the intent never to
return to the same).
2. Prescription (extinctive prescription)
3. Cession
4. Subjugation
5. forces of nature (i.e. avulsion; volcanic eruption)
6. Successful revolutions and secessions (mere declaration of independence does not
commence a new state success has to follow)
c. Space Law
i. Air space
ii. Outer space
1. An armed attack
2. Attack must be against a member of the UN
3. Security Council must not have acted yet
DOCTRINE OF SELF-HELP
- the right to self-defense which is an extension of the right to self-preservation hence under the
general international law the right continues to exist even if attack is made against a non-UN
member state.
ALLIANCE EXISTS
- because members of UN have implicit faith in each others desire for world peace.
- some members feel the necessity of taking measures to give maximum feeling of security either
thru mutual protection or by outright combination of strength.
3. Cases
Facts: In the 16th Century Spain discovered an island midway between Mindanao and Dutch East
Indies. However Spain did not effectively possess the territory. It was Holland which exercised
authority over the land. As a successor of Spain, the US asked that the island be awarded to it.
Held: The island cannot be given to the US for the inchoate title possessed by Spain never
ripened into a real title for its failure to effectively possess and administer the territory within a
reasonable period of time.
Inchoate Title discoverer must be given full opportunity to effectively possess and in the
meantime other states are legally excluded from the occupation of the territory involved.
Public International Law: Objects and Subjects
Written in 1998 during my Ll.M. studies at UST, Manila. I taught PIL for some years at FEU, Manila.
Suggested Readings
The Reporter suggests to the class the following latest references, for further
reading, on the subject matter of this Report:
5. CRUZ, Isagani. International Law. Quezon City: Central Law Books Publishing
Co., Inc., 1998.
6. CRUZ, Isagani. Political Law. Quezon City: Central Law Books Publishing Co.,
Inc., 1998.
"3. The duty not to intervene in matters within the domestic jurisdiction of
any state, in accordance with the Charter;
"4. The duty of states to cooperate with one another in accordance with
the Charter;
"5. The principle of equal rights and self-determination of peoples;
"6. The principle of sovereign equality of states; and
"7. The principle that states shall fulfill in good faith the obligation assumed
by them in accordance with the Charter." (cf. fifth (5th) Introductory
Clauses of the "Declaration" in Merlin M. Magallona, 96).
"All States enjoy sovereign equality. They have equal rights and duties
and are equal members of the international community, notwithstanding
differences of an economic, social, political or other nature.
"In particular, sovereign equality includes the following elements:
A. The STATE
Paras categorizes "subjects in international law" into two (2) categories: (a) the
complete or perfect international personality, and (b) the incomplete or imperfect, or
qualified or quasi-international personality. (Paras, 47).
He classifies states into the following species: (a) single or simple state (e.g.,
Philippines), and (b) composite state.
The 1933 Monteviedo Convention on the Rights and Duties of States provides for
the legal characteristics of a State, thus:
The "capacity to enter into relations with other States" refers to independence,
which many highly qualified publicists consider as the decisive criterion of statehood.
(Magallona, 20-21).
xxx The constitutive school maintains that it is the act of recognition which
constitutes or creates the status of a State as a subject of law and thus
gives it a legal personality. The international status of any entity as a State
is to be determined by the will and consent of already existing States.
xxx The declaratory theory asserts that recognition merely confirms the
acceptance by States of the status of an entity as a State. A new State
acquires legal personality by its own creative act in bringing about the
objective criteria of statehood, rather than by the subjective act of other
States.
xxx The declaratory school is the preferred approach, the prevailing view
being that recognition is not an element of statehood.
"(1) The Federation or Federal State (such as the United States and the
United States of Switzerland);
"(2) The Confederation (such as the original Confederation of the
American States, which eventually became the nucleus of the present
United States).
"(5) The Incorporate Union (one where the internal and external organs of
government of two states are merged into one, resulting in a single
international personality. An example is the United Kingdom of Great
Britain and Ireland xxx. While in a Real Union there is a merger only of
foreign affairs or external relations, in the Incorporate Union the merger is
actually complete and concerns internal as well as external affairs and
relations).
"NOTE: The British Commonwealth of Nations xxx apparently does not fall
under any of the preceding classifications xxx."
OR QUASI-INTERNATIONAL PERSONALITIES
The United Nations, being possessed of juridical personality, has the following
capacities: to contract; to acquire and dispose of immovable and movable property; and
to institute legal proceedings. (Paras, 63, citing Art. 1, Convention on the Privileges and
Immunities of the United Nations, adopted by the UN General Assembly on Feb. 13,
1946, in 1 UN Treaty Series 15).
Paras classifies the three (3) groups of International Organizations, aside from
the United Nations, as follows:
Paras discusses that while traditional writers insist that private individuals are
merely objects and not subjects of international law, some recognized writers in recent
years have accorded to the individual a new status in international law: they say, and
with good reason, that private individuals should now be regarded as subjects in the
international order, in view of the importance laid on them by the following:
"(1) the Charter of the United Nations Organization, and the Universal
Declaration of Human Rights; x x x;
"(2) the Nuremberg and Tokyo War Tribunals for War Crimes xxx;
"(3) the norm of general international law which prohibits piracy x x x:
"(4) espionage rules; conventions punishing acts of illegitimate warfare;
rules of general international law punishing private individuals for breach
of blockade and carriage of contraband;
"(5) the practice of certain courts of permitting foreigners to appear and
prosecute claims;
"(6) the Genocide Convention of 1948 which directly holds liable not only
states, but also private individuals, for the mass extermination of a racial
group;
"(7) the existence of rules safeguarding the rights of aliens and minorities;
"(8) punishment for the illegal use of the flag (Reporter's Note: this refers
to vessels using the flag of s state with which such vessel is not
registered);
"(9) the procedure in admiralty and maritime matters;
"(10) the special status accorded to refugees, and to displaced persons,
such as those fleeing from South Vietnam, from Cambodia, and, more
recently, from Cuba x x x. (cf. Paras, 44-46).
A status of belligerency recognized under international law may arise if (1) there
exists within the State an armed conflict of a general character; (2) the insurgents
occupy a substantial portion of the national territory; and (3) they conduct the hostilities
in accordance with the rules of war thru organized groups acting under a responsible
authority. (Coquia/Defensor-Santiago, 85).
A fourth requirement that has been suggested for the recognition of belligerency
is that there must exist a circumstance which makes it "necessary" for the recognizing
State to define its attitude tot he conflict. Coquia and Defensor-Santiago explains the
matter, thus:
The reason for this final requirement is that if the parties to
the struggle propose to exercise belligerent rights on the
high seas in such a manner as to affect the recognizing
State's maritime interests, the need for it to define its attitude
to the struggle has arisen. If, on the other hand, a distant
inland state with no maritime interests, and in no way
affected by the conflict were to recognize the rebels as
belligerents, it could open itself to the charge of encouraging
rebellion. (id., 86).
The conditions for a state of insurgency are: (1) the insurgents must have a
government and a military organization of their own; (2) the insurrection must be
conducted in the technical forms of war, that is, it must be more than a petty revolt and
must assume the true characteristics of a war; and (3) the government of the insurgents
must in fact control a certain part of the territory of the State in which the civil war takes
place. (id., citing Kelsen, 412).
x x x.
Article I of the 1987 Philippine Constitution defines the Philippine territory, thus:
Pursuant to Art. 47.1 of the UN Convention on the Law of the Sea (UNCLOS)
which entered into force on November 16, 1994, the Philippines, as an archipelagic
state, may determine is archipelagic baselines as follows:
The waters enclosed by the archipelagic baselines of the Philippines, which are
called "archipelagic waters," are within Philippine sovereignty. It also extends to
"airspace over archipelagic waters as well as their bed and subsoil, including the
resources therein." (id., citing Art. 49 of UNCLOS).
Pursuant to Articles 52 and 53 of UNCLOS, "ships of all states enjoy the right of
innocent passage through archipelagic waters" (which includes "internal waters" or the
"territorial sea") and such archipelagic waters may also be subject to "the continuous
and expeditious passage of foreign ships and aircraft, known as the right of archipelagic
sealanes." All ships and aircraft enjoy this right thru designated sea lanes and air
routes. The "territorial sea", which is a zone of Philippine sovereignty, is subject to the
right of innocent passage by ships of all states, including "foreign nuclear-powered
ships, those carrying nuclear or other inherently dangerous or noxious substances,
submarines and warships." Also, the Philippine territorial sea is also restricted by the
right of archipelagic sea lanes passage but "only such portions of the territorial sea
adjacent tot he Philippine archipelagic waters." All of the above provisions of UNCLOS
pose potential constitutional problems. (id., 82, citing Arts. 2, 17, 20, 23, 24, 30, 52 and
53 of UNCLOS).
As to the "exclusive economic zone", the Philippines has sovereign rights over
the same "for purposes of exploring, exploiting, conserving and managing the natural
resources" therein and it as "jurisdictional rights with regard to artificial islands,
environmental protection and maritime scientific research." (id., 83, citing Arts. 52.1 [a]
and [b] of UNCLOS).
The Philippines may be required to grant other states access to living resources
in its EEZ:
(id., 84-85, citing Arts. 56.1 [a], 58.1, 58.2, 61.1, and 62.3 of
UNCLOS).
There thus appears an apparent incompatibility with the 1987 Constitution. It will
be noted that Sec. 2, Art. XII of the 1987 Constitution provides that "the State shall
protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve it use and enjoyment exclusively to Filipino
citizens." (id., 84; original underscoring by the author).
The continental shelf does not form part of the "Philippine territory." (id., 85). But the
Philippines has the sovereign right for the purpose of exploring it and exploiting its
natural resources. (id., citing Art. 77 and 78 of UNCLOS). Elucidating further on the
"continental shelf", Magallona writes:
x x x.
x x x.