Cruz-2003-phil-international-law-book.pdf

TABLE OF CONTENTS Png"

Chapter 1 <mNERAL PUINCIPLR8

Nature and Scope..................................................................................... Divisions oflnt:ematio11al Law ............................................................. . Distinctions with Municipal Law .......................................................... Relation to Municipal Law ................ ... .. ..... ....... ... ... .. .. ..... ... ... .. .... ......... Constitution v. Treaty.............................................................................. Basis oflnternational Law ............. ........ ... ............... ...... .. ....................... Sanctions ofintemational Law .............................................................. Enforcement oflnternational Law ........ ................................................. Fm1ctions of lnt:emational Law ...... ............ ... .... .. .. .. ....... ..... .. ........... ...... Distinctions with Other Concepts........................................................... Frei;ent 8tate oflntemational Law .. ...... .. . .. ......... ..... .. ...... ......

1 2 2 5

10 12 14 16 18 18 19

Chapter· 2 ~OURCES OF INTERN..\l'IONAL LAW Treaties .,...............

21

Custo~

22

General Principles of Law Secondary Sources

24

25 Chapter 3

THE INTE'RNATlONAL COMMUNITY

Subject and Object Distinguished

27

Development of the International Conununity States

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28 29

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TABJ,1!;

OF C ONTENTS

TABLE OF CoN'I'EN'l'S

Page (a)

People (b) Territory (c) Goverrunent ............................................................................... . (d) Sovereignty Capacity ofStates ..... Classification of States Independent States (a) Simple States Cb) Composite States (1) Real Union (2) Federal Union (3) (4) (5)

Confederation

(e)

30

(f)

The Tnternation9.1. Cr:u.nt 0f Justice

n,.. 1-:Pf'rPt.A,·iAI'.

31

31 32 33 33 33 33

34 34

Chapt~r 5 TJ.JF. l:ONt:EPT OF THF. $TATV.

Creation of the State ...................... .......................................................... The Principle of State Continuity............................................................ Extinction of the State .............................. ........... .................................... Succession ofStates ................................................................................. Consequences ofState Succession ......... ...... ..................... ........ .............. Succession of Governments .. ....... .... ......... ........... .................. ....... .......

35 35 36 37 38 39 40

The United Nations. The Vatican City Colonies and Dependencies Mandates and Trust Territories Belligerent Communities Internationl:'.l .!\,hninist.t·ative Bodies

41 42 42

fodivid'.U:11~ . Chapter

&

72 73 74

75 75 78

Chapter 6 RECOGNITION

Objects of Recognition Kinds of Recognition Recognition of States Recognition of Governments Effects of Recognition of States and Governments

81

Oetjen v. Central Leather Co. Recognition of Belligerency l:ousequeni:es of Rero~iti.on of Belligm·ency

8£1

TW. TJNrTED NATIONS

81 83

84 87

89 ~J

r.h,.rt.".. ; 45

The U nited Nations The U.N. Charter The Preamble to the Charter

48 49

Purposes ...

51

Principles Membership Suspension of Members Expulsion of Members ·····~···· ..........

52 55

58 58 59

Withdrawal of Members O~ns of the United N1:ttfons ....... .. (a) The General Assembly .. (b) The Security Council (c) (d)

68 70

31

35

Personal Union Inrorporate Union N eutralized States Dependent States

/'age

30

THE .t:UGHT OF EXISTENCE AND SELF DEF'ENSE Requisites of Rights The Cuban Missile Crisis Regional Arrangements The Balance of Power Aggression Defined

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62 65 67

96 97 98 Chapt-er 8

60 60

The Economic and Social Council The Trusteeship Cow1cil

93 95

THE RIGHT OF INDEPENDENCE Idealoflndependence

101 , , 102 · '

Nature oflndependence

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"--1111 T,\BtE OF

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or C')1;'fEtITS 1

Page

103

Intetvention The Drago Doctrine

1(.lf.

Chapte1· 9

THE RIGHT 01< RQTJAJ .TTY 106

Essence of Equality . Legal Equality v. Factual Inequality .......

107

Page

130

Maritime and Fluvial Jurisdiction The Contiguous Zone The Continental Shelf The Patrimonial Sea The Open Seas The Lotus Case Ae1ial Jurisdiction Outer Space Other Tenitori~s

132 133

134 134

135 137

138 13~

C'hapt~,· 10

Chapter 12

TERRITORY

THE RIGHT OF' LEGA'l'ION

Acquisition and Loss ofTenitory Discovery and Occupation (a) Requisites (b) Dereliction ..... Prescription Cession Subjugation Accretion r.nmpo11P.nts ofTenitory .. (a) The Ten·estrial Domain (b) The Ma.iitime and Fluvial Domain (1) Rivers (2) Bays (3) The Territorial Sea (4) The UN Conferences on the Law of the Sea (5) The Philippine Territorial Sea ... ............. . (6) The Archipelago Doctrine (7) Basis of Article I of the 1987 Constitution (8) Methods of Defining th~ Te1,:it.i:1Ii8l Sea

(c) '!'he Aerial Domain

109 110 110 112 113 113

114 114 115 115 115 116 117 117 118 119

120 121

122 123

Agents ofDiplpmatic Intercourse The Head State The Foreign Secretary Diplomatic Envoys The Diplomatic Corps Appointment of Envoys Commencement of the Diplomatic Mission Diplomatic Functions Conduct of Diplomatic Mission Diplomatic Immnnities and Privileges (a) Personal Inviolability (b) Immunity from Jmisdiction (c) Inviolability of Diplomatic Premises (d) Inviolability of Archives (e) I.nviolability of Communication (f) Exemption from Testimonial Duties (g) Exemption from Taxation (h) Other Privileges The Diplomati<: 8uit.e or Retinue Duration Termination of Diplomati-:! Mission

of

141 142 142 143 144

145 146 147 L48

148 149 150 154 155 156 156 157

157 158

158 159

Chapter 11

Chapter

.nmISDICTION

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CONSULS

125

Personal Jurisdiction Territorial Jurisdiction Land Jurisdiction

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Consuls Kinds and Grades

162

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Appointment Functions Immunities and Privileges TE'.rmination of Consular Mission

163

164 166

Chapter 14 TREATIES FtU1ctions of Treaties Essential Requisites of a Valid Treaty (a) Tl'eaty-making Capacity Authorized Representatives Freedom of Consent (d) Lawful Subject-Matter

(b) (c) (e)

Compliance with Constitutional Processes

168 169 169

169 170 171 172 172

Treaty-making Process Binding Effect of Treaties Observance of Treaties Treaty Interpretation Termination of Treaties

175 176

179 180

Page The International Standard of Justice Failure of Protection 01· Redress Exhaustion of Local Remedies Resort to Diplomatic Protection Enforcement of Claim Avoidance of State Responsihil.ity Exclusion of Aliens Extradition Basis of Extradition Fundamental Principles of Extradition Procedure of Extradition

WAR

185 185

187 187 188 189

Chapter 16 TREATMENT OF ALIENS Treatment of Aliens .................... ............... .......... ..................................... 192 The Doctrine of State Respo~sibility ...................................................... 193 ~

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199 200

201 202 202 203 205

207 208 209

Setj;lement of International Disputes Methods of Settling Disputes Amicable Methods Hostile Methods The United Nations

NATIONALITY AND STATELESSNESS 183 184

198

SETTLEMENT OF INTERNATIONAL DISPUTES

Chapter 18

182

195

197

Chapter 17

Chapter 15

Nationality and Statelessness ................................................................ Acquisition of Nationality ........................................................................ lvlultiple Nationality ................................................................................ Loss of Nationality ................................................................................... Conflict of Nationality Laws ................................................................... Unit.ed States (Alexander Tellech) v. Austiia a.n,:l Hm:>.g"lry ............... The Canevaro Case .................................................................. ................ The Nottebeh".".' 0"'""' . . ... .... ...... ......................................... Statelessness .............................................................................................

194

213 215

221 222

War Outlawry of War Laws of War ..... . Commencement of War Effects of the Outbreak of War Combamnts and Non-combatants Conduct of the Hostilities Kinds '.'.lfWa1fare ........ . Belligerent Occupation Postliminium Non-Hostile Intercourse Suspension of Hostilities Termination of War Aftermath of War

222 224 224 226 227 . 229

230 233

234

235 236 238

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TABLE '}F ('011.11 t:'.NT~

I'aE!e Chaptet· 19 NRTJTRAl,ITY

Neutrality................. ... ...................... ........................................ ........... ... Neutrality and Neutralization................................................................. Laws of Neutrality .................................................................................... Relations of Belligerent States and Neutral States ............................. Use ofNeutral Territories ....................................................................... Use ofNeutral Facilities and Services ..................................... ............. Relations of Belligerent States v..ith Nationals of Neutral States ...... Visit and Search ..................................................................... .............. .... Contraband ................................................................................................ Blockade ........................................ ............................................................ Unneutral Service ....................................................................... ......... ....

lN.TERNA'fTON AT, Li\.\V 242 243 243 243 244 246 248 248

Angary ....................................................................................................... 254

APPEND!~l?~ A-Charter of the United Nations ...................................................... B-Statute of the International Court of Justice ................................. C-Vienna Convention on Diplomatic Relations ........................... ...... D--Universal Declaration 0fH11m1:1n Right,;, ........................................

Refe~n,;es .. .... .. .

257

294 313 333

... ......... .. ... ... ..... ...... .... ...... 341 --oOo---

GENERAL PRINCIPLES

249

252 253

Termination of Neutrality ....................................................................... 255

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Chapter 1

Nature and Scope THE EXPANDING SCOPE of international law has modified its traditional concept as "a body of rules and principles of action which are binding upon civilized states in their relations with one another."1 Although this definition is still widely accepted, it is now admitted that there are other entities besides 'states that are also governed in va13ring degree by the law of nations. A notable example is th~1.Jnited Nations. Another is thl individual hi•nself, who has even been suggested as the real and only subject of international law, on the ground that "all law is a regulation of human conduct."2 In view of these, many writers now agree with Schwarzenberger thatT11t.P•·11::,ti,n11,I l':'w is the body of lP.giil rules which apply between sovereign states and such other entities as have been granted international pel'Sonality:

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Briefly, 1. Hans Kelsen, Theorie Generale due Droit International Public, 1932, 148. 3 Schwarzenberger, 1. 2

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As thus understood, the phrase "international law" is obviously a misnomer in so far as it suggests that it relates

to the intercourse of nations rather than of states. Furthermore, its restrictive import would exclude from its operation those other international persons which, although non-states, are directly assigned certain rights and responsibilities m the international community. Nevertheless, the nomenclature has achieved practically universal acceptance since it was first employ~d in 1870 by Jeremy Bentham in his Introduction to the Principles of Morals and Legislation. It is now us8d interchangeablv 'Nith anoth.P.Y familiar t~pn, "thP. la.w of nations.''.

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PR.TNr.TFLF.S

Divisions oflnternatimrnl T,aw The grand divisions of international law are the laws of peace, the laws of war, and the laws of neutrality. ThPii:if'WiilQb.·.i~~;~overn the normal relations of states. When war bre~·h out between or among some of them, the relations of these states cease to be regulated under the laws of peace and come under the laws of war for the duration of the hostilities. Those states not involved in the war continue to be regulated under the laws of peace in their relations inter se. However, their relations with the belligerents, or those involved in the war, are governed by the rn.ws of neutrality. When the war ends and peace is restored, the relations of all the members of the family of nations will come again under the l~wr;: of pP.ace, until another war b:rl?~ki:: Otlt.

to the municipal or private law of each state rather than as a part of international law. While it has been suggested 4 in one oft-cited case that international law covers both public and private international law, the consensus is that only those precepts applicable to relations of international persons inter se fall within the field of international law. The monists do not share this opinion because they believe in the oneness or unity of all law. To them, "the main reason for the essential identity of the two spheres of ]aw is ... that some of the fundamental notions of International Law cannot be comprehended without the assumption of a superior legal order from which the various systems of Municipal Law are, in a sense, derived by way of delegation."5 In both spheres, they contend, law is essentially a command binding upon the subjects independehtly of their will, and it is ultimately the conduct of indi.·~ duals which it regulates. To the dualists, however, who believe in the dichotomy of the law, there are certain well-established differepces between intemational law and municipal law. In the first place, municipal law ;is issued by a political superior for observance by tho~e under its authority whereas~l;fif~tional law is not imposed upon but simply adopted'by states as a common rule of action among themselves: As Oppenheim points out, "Whereas Mlmicipal ~aw! is a law of a sovereign over those subjected to his sway, the'Lii,wiofNationsiis a law, not above, but between, sovereign states and is, therefore, a weaker law.',6 Secondly, municipal lavv consists mainly of enactments from the lawmaking authority of e:::ich !':ti3.te wh":'rea8 1nternatim1al law is derived not from any par-

Distinctions with Municipal Law Most present-day legal analysis regards private in., : ,. · ternational law, so-called, or conflict of laws, as pertaining ·, l, '

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'Hilton v. Guyot, 159 U.S. 112, ~ Oppenheim-Laut~rpacht, 38, i CL Minon, Conflict of Laws, 2·4,

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li:'l'l'ERNA'I'IONAL LAW

ticular legislation but from such sources as international customs, international conventions and the general principles oflaw. A third distinction may be noted, viz, that municipal law regulates the relations of individuals among themselves or with their own states whereas in~ rri1 tional law applie.s to the relations inter se of states and"'other international persons. Accorqingly, and this makes the fourth difference, violations of µi unicipal law are redressed through local administrative and j udicial processes whereas questions of mt~~ti2P.~~i:~w~;·are resolved through state-to-state transactions ranging from peaceful methods like negotiations and arbitration to the hostile arbitrament of force like reprisals and even war. Finally, breaches o~ 1nfApS!-(law generally entail only individual responsibility whereas responsibility for infractions o~p;~r.Jm~~vtt~~j~~\\';·~is usually collective in the sense that it attaches directly to the state and not to its nationals. However, it is possible for a principle of municipal law to become part of international law, as when the principle is embodied in a treaty or convention, like the Hague Conventions of J.899 and 1907 relating t.o personal status and the Geneva Convention of 1930 on bills of exchange. AJso, as observed by one writer, "the practice of states of giving greater or less validity to the legislation of other states under particular circumstances contains the elements of international law."7

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GF.UETIAL Pnl?JCI!' l.f.S

Rela tion to Municip al Law It is a universally accepted postulate that, with or without an express-declaration to this effect, states admitted to the family of nations are bound by the rules prescribed by it for the regulation of international intercourse. This is an inevitable consequence of membership in the international community. Conformably, it was held 8 in Ware v. Hylton that ''when the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement." This same case declared that "the law of nations is a part of the law of Great Britain." In the Paquete Habana Case,9 Justice Gray asserted categorically: "International law is a part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction as oft.en as qnestions of rights depending upon it are presented for determination." More explicit is the statement that "the law of nations, although not specially adopted by the Constitution or any municipal act, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation."10 ~orne stl'l!°-88 havp seen fit to emphEt.siie their amenapility to this fllq,cfrine of incorporation, as it is called, by affirming their recognition of the principles of interna!ional law in their constitutions. Among these are Austria, Germany, Korea and the Philippines. Thus, in Article II, Section 2, of our Constitution, it is provided that-

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Fenwick, 245-246.

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3 Wall, 199, 228 (U.S. 1796). 175 U.S. 677. 10 Attorney Gener al Ra ndolp's Opinion of June 26, 1792, 1 Ops. Atty. Gen. 26, 27. r : 9

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TN fErtNATIC'NAL

6

LA\\;

n E!':ERAL I'RmcrrLES

The Philippines renounces wa.r as an instrument of national policy, a do pts the gener ally accepted ptinciples of international law as part of the law of t he land, and adheres to the policy of peace, equality, justice, freedom, coopera tion and amity with all nations.

tion would not create international complications inasmuch as it is not often tha t inconsistencies arise between the principles of international law a nd the municipal law of the local state. But this possibility cannot be completely ruled out in view especially of the lack of care that may attend the enactment of statutes by national legislatures and the deliberately hostile policies that may inspire them, particularly in ultra-nationalistic countries. Hence, it is important to consider the criteria to be applied in re~olving conflicts between international law and municipal law as developed by the practice of states. The l.ffl'ifilt.ule would be to attempt to reconcile the apparent contradiction and thereby give effect, if possible, to both systems of law. For this' purpose, it should be presumed that municipal law is always enacted by each,~tate with d ue regard for and never in defiance of the genera}J.t}..t fe~tee ~rinciples of intern~t~o~al law. The c::1se o~Jfi.fim·fl.r,.q:!T.:·V. Valdez .T an Keh1 1s illustrative of.this principle. Here it was contended that General MacArthur's P roclamation of October 23, 1944, invalidated all judicial proceedings during the Japanese belliger.ent occupation of the Philippines because the edict declared null and void "all laws, regula tions and pr~cesses of any other government than that of the Commonwealth.'' IP H•jA~t.ing this Yiew. our Supr':'mP. Cqw·t ·explained:

Representing the minority view in this matter is the doctrine of tran${ormatt'on1 which holds that the generally accepted rules of international l.aw are not per se binding upon the s tate but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Only when so transformed will they become bin~ing upon the state as part of its municipal law. . In Kl!_rcx!a u. Jqlaruloni,, t°t the Supreme Court der.J ~r.P.d as follows:

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Petitioner argues that r espondent Military Commission has no jurisdiction to try petitioner for acts com mitted in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signa tory to the first and signed the second only in 1947. lt cannot be denied that the rules and regulations of the Hague and Geneva Conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, fo rm part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constit ution has been deliberately general and extensive in its s cope and is not r.onfined to the recognition of rules and principles of international law as containP.d in treaties to whi~h our go·:ernme nt m&.V l1iive been or shall be a signat0ry

Ta.king into consideration the fact that according to a w~J!.-1"TJO""' pri.n.. ipl.P. of i.nternati<:>M l. l..fil w, i:i.ll judgments a nd judicial proceedings which are not of a political complexion of .t he de facto government during the Japanese military remained so after the occupied territory had come again into the power of the titular sovereign, it should be presumed that it A not and could not have been the intention of General r MacArthur, in using the phrase 'processes of any other gov-

The above provision has expressly placed international law in the same category as the other components of Philippine law, such as the Civil Code, the Insurance Act and the Local Government Code. Normally, such a situa-

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ernment' in said proclamation, t,o refor to judicial proces"es, in violation of said principle of international law.

However, the solution cannot always be as simple as this, for where the conflict is actual and not merely apparent, there is no question that a categorical choice will have to be made. Take, for example, an amendment to the constitution of a state abolishing the right of property in aliens within its jurisdiction. Decrees of confiscation pursuant to this provision could arguably be valid under municipal law but they would at the same time raise serious international complications and provoke objections from the states adversely affected. Under these circumstances, which system oflaw should prevail? From the international viewpoint, the problem would not present much difficulty since international tribunals follow the view that "to sustain or uphold the supremacy of municipal law over international law could lead to international anarchy and lawlessness, each state discarding and repudiating such parts of international law as are inconsistent with and inimical to its national interests, ambitions and policies." 12 Accordingly, such tribunals have invariably supported international law as against opposed principles of municipal law. Thus, it was held in a dispute between Great Britain ~~J¥.~&...~~iiJL4l;rthat "there could be no question th~t na· tionaJ laws must yielrt to the law of nations if there was a conflict." 13 In another case, it was argued that. a legislative decree of Guatemala abrogating the concession of an American national in that country was the constitutional act of a sovereign state that could not be questioned by an international tribunal. While declaring that the content.ion 2 : Le fondement due droit international, 16 Recueil des cow·s (1927), 2-3. ·~Hackworth, 34.

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might be tenable from Lhe national viewpoint, the arbitrator nevertheless held that "it is a settled principle of international law that a sovereign cannot be permitted to set u p his own municipal law as a bar to a claim by a foreign sovereign for a wrong done to the latter's subject."14 In fine, as Fenwick summarizes it, "international law f" is binding upon the state as a corporate person, and nol provision of the national constitution or act of the nationalI 1egislature or decree of the executive or judicial agencies! can change the force of its provisions in so far as the legal\ !'elations of the state toward other states are concerned."15 By contrast, the attitude of national tribunals has been rather indecisive, to say the least. In the case of The Nereide,16 for instance, the Supreme Court of the United States held that "it was bound by th e law of nations, which is a part of the law of the land," but subsequently, in The Over the Top, 11 the same court was to assert national pride with the pronouncement that "international law is law only in so far as we adopt it and, like all common or statute law, it bends to the will of Congress." Nor is this judici:::tl inconsistency limited to one forum, for it also marks the policy of courts from different even if closely related jurisdict.ions. To illustr:::1.te, i.t was held by-Lord Mansfield in 1'riquet v. Bath 18 that, "the law of nations, in its full extent," was part of the law of England. Obvi9-i1sly unimpressed by the ruling, a Scottish court declared in upholding a municipal law: "In this court we have nothing to do with question of whether the legisla14

United States (P.W. Shufeldt vdf. Guatemal a, Shufeldt Claim, Dept. of Sta te Arb., Sec. 3, 851, 876-877 (1932)). 15 Fenwick, 89. 16 9 Cranch 388 (1815). 17 5 F 2d 838 (D. Conn. 1125). 18 Fenwick, Cases, 31. ~-

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JNTERNATIONAI, LAW

ture has or has not done what foreign powers may consider a usurpation in a question with them. Neither are we a tribunal sitting to decide whether a n act of the legislature is ultra uires as in contravention of generally ac19 cepted principles of international law." And so the conflict goes, and the solution is not yet in sight.

PRJN8IPLJ£S

1l

In the case of Ichong u. Hernandez,21 the Retail Trade Nationalization Law was challenged on the ground inter c,lia that it violated the Treaty of Amity between the Philippines and China, the United Nations Charter and thP- Universal Declara tion 0f H 1Jman :Rights. The Supreme Court., afw.r rejecting this assertion, made the followir1g significant remarks:

Constitution v. 'freaty Similar·observations may be made in connection with cases involving conflicts between the constitution of a state and a treaty duly entered into by it with other states. Generally, the treaty is rejected in the local forum but is upheld by international tribunals as a demandable obligation of the signatories under the maxim pacta sant seriiii.niki:. On the. one hand, it is provided in the Declaration
111

Mortensen v. Peters, Fenwick, Cases, 25 .. '" Art. VIII, Sec. 5 (2). ~ ~ ~

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But even assuming that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope of the police power of the State.

_ . Equallt notew?rthy is the case of ;9?.nzqJ~"f;}!:

Hc.c.hangua, where 1t was shown that the President of the Philippines had by executive agreements contracted for the importation of rice from Burma and Vietnam without first securing from the National Economic Council the certif\caf".ion required by law that t.bere was a short.age of the said cereal in the Philippines at the time. Notwith &tanding that in international law treaties and executive agreements are equally binding commitments of the contracting states, our Supreme Court held in part: Although the President may, under the American constitutional system, enter into executive agreements without previous legislative authority, he may not, by executive agreements, enter into a transaction which is prohibited by sta tutes enacted prior thereto. He may not defeat legislative enactrp_ents by indirectly repealing the same through an executive a greement providing for the very act prohibited by said laws. As regards the question ofwhethe1· an international agreement may be invalidated by the courts, $Uffice it to say t.ha.t the Constitution authorize.!? the n ull.ification of a treaty not only when it conflicts. with the Constitution but also when it runs counter to an act of Congress. 11 22

G.R. No.'L-7995, May 31, 1957. G.R. ~o: L-21897, Oct . 22, 1963.

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GEJ\'ER.AL PRIKCIPLES

It-.i'ERNA'l'IONAL L>.W

Basis of International Law As previously observed, international law does not emanate from a supreme lawmaking authority for the regulation of those subject to its control but is, on the contrary, voluntarily observed by an international community which does not recognize any political superior among its members. In view of this, it is pertinent to inquire into its basis and to determine why it is recognized and obeyed as a rule of action by the family of nations. What is it, in other words, that gives binding force to international law? According to the n'al u.'ralist school' of thought, the foremost exponent of which was Samuel Pufendorf, the basis of international law is the law of nature. This is described as a "higher law" or "a rule of human conduct independent of positive enactment and even of special divine revelation, and binding always and everywhere in view of its intrinsic reasonableness."23 Under this theory, there is a "natural and universal principle of 1ight and wrong, independent of any mutual intercourse or compact," which is supposed to be discovered and recognized by every individual through the use of his reason and his conscience. The consequence is that, since individuals compose the state, whose will is but the result of the collective will of its inhabitants, the state itself also becomes bound by the law of vature. lnternationa.l law ~s thus viewed is therefore not H hrn,• /:,qt,ween l)nt al:>oue ~ti:1tB~. Opposed to this theory is that advocated by the Positivists, led by Richard Zouche, who contend that the binding force of international law is derived from the agreement of sovereign states to be bound by it. It is not a law of subordination but of coordination. Under this school of 23 Pollock, Sources of International Law, 2 Col. L. Rev. 511-519. l Bishop, 11. · '

thought, a more "positive" identification with or acknowledgment of the law is necessary to make it binding on the ~tates it purports to govern, so that any state withholding its consent can disclaim any responsibility of observance. Snch consent, it is asserted, is expressed in the case of conventional law, implied in the case of customary law, ·~n.cl presumed in the case of the general principles oflaw.2~ The compromise position is taken by the Eclectics or tl1-ei}rotians, the most famous of whom were Eme1ich de }'ii.t~l:and Christian Wolff, who offer both the law of na, ture and the consent of states as the basis of international ;law. This theory adheres more closely to the ideas of Grotius, "the father of international law," to the effect that th~ system of international law is based on "the dictate of right reason" as well as "the practice of states." Briefly, it 19 asserted that "in so far as it conformed to the dictates of right reason, the voluntary law might be said to blend with the natural law and be indeed the expression of it. Sh0uld there be a conflict between the two, the law of na~ tµre was to prevail as being the fundamental law, the authority of which could not be contravened hy the practfoe of states.',25 The influence of these schools of thought is describ~d by Ri~hop ::I!': follmv.": Frcm the time of Vattel and his contemporanes, until the World War, the Positivist writers gained steady ascendancy; since then there has been some slight swing towards a revived natural law among theorists and writers on international law, b•lt apparently this has had little effect on actual internatJonl:11 le!!al p:ractice. Those v:ho as judges and st?Jesnian make and apply international law are inclined to talk primarily, if not solely, in Positivist terms; but a theoretically

21 15

Vattel, Droit des Gens, cited in Bishop, 20. .F:enwick, 51-52.

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satisfactoty e::planation of international La N in op~rafrm may 26 demand some reliance upon ideas of natural law

reflection of the age-old desire of men and peoples fi.>T international order in lieu of anarchy and lawlessness which, during many periods of history, have characterized the relations of states. (j) But regardless of the intrinsic merits of the rules of international law, they may still be observed by states because of the normal habits of obediePce ingrained in the nature of man as a social being. These habits persuade individuals, and ultimately states, to follow, almost automatically at times, certain norms of conduct imposed for their observan.ce. (.~) No less effective is the respect for world opinion held by most states, or their desire to project an agreeable pub lie image in order to maintain the goodv,•i.11 and favorable regard of the rest of the family of nations. This sanction is the motivation for the propaganda campaigns now being waged by the leading powers in their effort to win the sympathy and support of the other countries for their respective ideologies. (!}) A fourth sanction is the constant and reasonable fear, present even in the most powerful of states, that violations of international law might visit upon the culpdt the retaliation of other states. The force of this influence was dramatically illustrated in 1962 when the Soviet Union made a diplomatic and physical retreat in the face of a determined quarantine established by the United States against shipments ()f rr1issiles and oth~r munitions to Cuba. (§'1 Fina.Uy, hut. not. the lea.st signifiC'ant, thf.re t!': thP. machinery of the United Nations which, within the sphere of its limited powers, has on many occasions proved to be an effective deterrent to international disputes caused by · . ~isregard of the law of nations. The moral influence of this ,: .~ 9rganization, coupled with its power to employ p~ysical

1

Sanctions of International Law Assuming that international law is binding upon the international community, what is it that compels obedience to its precepts? For, indeed, the fact that a law is binding does not necessarily ~ean it will be observed, especially in the absence of some coercive influence to dictate obedience. It should be remembered that, unlike municipal law, which generally prescribes specific methods for its enforcement, international law· is not provided with "teeth," as it were, to ensure a more respectful regard for its principles.2 ' Despite the serious handicaps of the law of nations in its present stage, there are a number of factors that more or less induce observance of its more generally accepted precepts. These, sanctions, as they are called, have been described as ~'the compulsive force of reciprocal advantage and fear of retaliation."28 According to the fl.iji;t(i Atlantic _,,. .•..,.~·,~;, ;;~~-~:·, ..r.w. ......... ........... . . . '. ;2,9 ". . / ~Mfi.e's.~'A.rbltfi:itfifti:~ they may consist of "appeal to pubI lie opinion, publication of correspondence, censure by Par~ ' liamentary vote, demand for arbitration with the odium attendant on a refusal to arbitrate, rupture of relations, ,~ rep1;sal, etc." (y Easily one of the most effective if the least obtrus,ve of these sanctions is the belief shared by many states in the inherent reasonableness of internationa.l law and in tb~ir i:-ommon i::onviction that its observance will redound to the welfare of the whole society of nations. This is a 26

2

P. 22. Pp. 59-60.

2

Philip M. Brown, Int_emational Realities, (1917) 21. Scott, Hague Court Reports (196), 141, 167.

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force whenever wan-anted, has aborted or resolved not a fe-w international disagreements that otherwi8'? migl,t have assumed more serious proportions.

Enforcement of International Law

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If we follow the Austinian concept that a rule of action can be considered law only if it is prescribed by a political superior with power to punish violators, then international law ·cannot be regarded as true law. However, considering the more acceptable view that there are many norms of conduct that society may volµnta11.ly adopt and obey although no specific penalty is imposed for nonobservance, international law may be said to possess the qualities of true law. This being so, it is important to ascertain the various methods by which international law may be enforced in the family of nations. But first, distinction should be made between observance and enforcement. The former is essentially subjective and mainly dependent on the volition of the entity which is supposed to be governed by the law. Enforcement, on the other hand, is the process by which such observance may be compelled, usually by force or at least the threat of force. States are able to enforce intemational law among each other through international organizations or regional groups such as the United Nations and the Organization of American States. Grievances of the disagreeing states may be present.ed to and di.scussed in these hodies, which mPy there;.=i ft.er adopt ~·1ch n,easures a!, rn:3.y be neces<:.ary to compel compliance with international obligations or vindicate the wro!lg committed. At present, this function is usually exe1·cised by the United Nations through the Security Council and the International Court of ,Justice, lndepenckntly of these, specinl arbitnd tribunals may be c!·e-

,·

17

ated by agreement of the pr,rties affected for the settle ment of their dispute. In lieu of such remedies, or sometimes before they are availed of, the quarreling states may attempt to settle their differences between themselves, either through amicable _methods such as diplomatic talks or hostile measures like. retorsions and reprisals. Where these fail, war itself may be waged as a last resort. In such an event, the laws governing the conduct of the hostilities, as well as the laws of neutrality, are enforced mainly through physical force by the belligerents and the neutral states. Violations of these laws may also be punished after the war through such measures as the prosecution of war criminals and the collection of reparations. The United Nations demonstrated its capacity to contain aggression in the '(}~lf War of 1991. when Iraq was forced to withdraw from Kuwait in the face of a determined military action taken by the world organization. And more recently, again by mandate of the United Nations, military units from the United States and other countries provided food and medicines to the starving people of Somalia, from whom relief goods sent by .c haritable organizations had been hijacked by the warlords of that country fo1· their own use. Internally, the rules of international law may be treated by the indivirl.ual states as part of their municipal law. The legislature may implement such rules by prescribing the norms for tl-ieir obse• var1ce and providing gpP.dfi.c p~naltie.s for t.heir v1olati011, a~ when jt 113.ys do-~~n the ?erial fo1bilities for genocide or for an attack against a diplomatic representative. The executive participates by enforcing such laws. The judiciary, for its part, can play an important role in this regard by applying· the rules of international law ex proprio vigore in proper cases or ~h"e . . 1 ;

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INTERNATIONAL LAW

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appropriate statutory enactments intended to implement them.

Pm::,;icrrLES

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International diplomacy relates to the OQjects of national or international policy and the conduct of foreign affairs or international relations. Satow defines it as "the application of intelligence and tact to the conduct of official relations between independent states "30 In this connection, reference may be made to thejus feciale, or the law of negotiations and diplomacy which determined the duties of the Fecial College of the old Roman Republic. This body gave effect to formal declarations of war, rendered advice on questions respecting war and peace, acted as heralds and ambassadors, and received and entertained the envoys of foreign states.31 i[.(riJ~rnational administrative law is defined as "that body of laws and regulations, now highly developed, created by the action of international conferences or commissions which regulate the relations and activities of national and international agencies with respect to those mate1ial and intellectual interests which have received an authoritative universal recognition."32 Among such interests are int3rnational communications, protection of literary and artistic rights, prevention of crime, and the promotion of health and education.

Functions of International Law The primary function of international law is to establish peace and order in the community of nations and to prevent the employment of fore~, including war, in all international relations. But as it seeks not an uneasy truce but a lasting accord based on a genuine spirit of , ,, international harmony, it strives as well to promote world ·~;.: friendship by leveling the barriers, as of color or creed, that have so far obstructed the fostering of a closer understanding in the family of nations. For its third purpose, international law endeavors to encourage and ensure greater international cooperation in the solution of certain common problems of a political, economic, cultural or humanitarian character. Finally, international law also aims ;- , to provid~ for the orderly management of the relations of VUstates on the basis of the substantive rules they have agreed t.o oh.c;;:P.rvP. ::is mP.mhP.rs of thA intemationaJ community. Di~t.in~t.ion~ wit.h Ot.hP.t· Con~P.pt.~

International law is also to be d.istirnruished from other closely related concepts. ,ffi_t,[email protected] morality or ethics embodies those principles which govern the r~lations of states from the higher standpoint of con.c::cience. more.lity, justice and hurna11ity. In this sense, it is similar to the law of nature. It may also be likened to ffiiernational comity, which refers to those rules of courtesy observed by states in their mutual relations, in that violations of its precepts are not regarded as constituting groundsJor legal claims.

.·

Many of the r11les of internationB.l law lire root.€d ifl

tradition, but not a few of them have yielded to new principles brought about by modern developments in international relations, such as the receding distinctions between combatants and non-combatants, the growing claims over the maritime domain of states, the general disapprobation

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I, Diplomatic Practice, 1. Davis, Elements ofinternational La\v, 5-6 . 2 , Cf. Hershey, 5 . 31

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INTERNATIONAL LAW

9.0

of intervention, the outlawry of war, and the expansion of the horizons of man into the realm of outer space. Unfortunately, advances in science have brought the peoples of the world closer together only in a physical sense, and conflicting interests and ideologies continue to retard the growth of a universal rule oflaw based on peace and jvstic8. TnternationFII law thus remains in a state of transition as mankind struggles toward the millennium of harmony and order.

Chapter 2

SOURCES OF INTERNATIONAL LAW CONFORMABLY TO ARTICLE 387 of the Statute of the International Court of.Justice, the sources of international law may be generally classified as primary or secondary. The primary or direct sources arc treaties or conventions, customs, and the general p1;nciplcs of law. The secondary or indirect sources are the dei::isions 0f i::0urts and the writings of publicists. The said article provides as follows: 1. The Court, whose function is to decide in accordance with international law such disputes as arc submitted to it, -Rha U apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting state; b. international custom, as e"idence of a general pt'actice a.ccepted as law;

c.

the general pr!.nciples of law t'ecognized by civi-

lized nations;

d. s1JbjP.ct to the provisions of Article 5!:I, judicial tho. mni::t. J.iigh]y '}'.'"'1.ifie<'I publicists of the various nations, as subsidiary means for the determination of rules oflaw. 2. This prohibition shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree ciP.('il'lhn!:: o:irJ.rJ tl,P h'\flrhing" 'lf

thereto.

Treaties It is obvious that not every treaty can be considered a direct source of international law as it is not always con-

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eluded by the great body of states. A bilateral treaty between the Philippines and Japan, for example, is binding only upon the signatories and cannot apply to the rest of the international community which had no participation in its negotiation or adoption. Such a treaty, being limited in operation, is a .source only of what is called "particular international law:" However, even bilateral treaties may become primary sources of international law, if they are of the same nature, contain practically uniform provisions and are concluded by a substantial number of states, albeit separately. Examples are the l'_standard" extradition treaties which, while only bilateral, are notable for their growing number and also the similarity of their stipulations. The general rule, though, is that the treaty, to be considered a direct source of international law, must be concluded by a sizable number of states and thus reflect the will or at least the consensus of the family of nations. The treaty need not be entered into at the outset by a majority of the states forming the international community. Even if originally agreed upon only by a few states, the treaty may become binding upon the whole world if it is intended to lay down rules for observance by al1 and it is subsequently signed or acceded to by other states which thereby submit to its provisions. Examples of these A~wmaking treaties," as they are called, are the Peace of Westphalia of 1648, the Congress of Vienna of 1815, the Dedarar.ion of Paris of 1856, the Geneva Red Cross Conv'=nti~n of 1864, and t.he llnited Nations Charter of 1945. 1jlU

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A custom is defined by Fenwick as a practice which has grown up between states and has come to ?e accepted

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as binding by the mere fact of persistent usage over a long period of time. An example is the practice of granting immunities to foreign heads of states or diplomats in the territory of the local state pursuant to what has come to be known as the principle of exterritoriality. Many of the rules on maritime warfare and international commerce originated in the practice of a single state or gToups of states, becoming universal later with their acceptance by other states ..The exercise of jurisdiction by states beyond their territories is also based mainly on international custom. Most of the customary rules of law have been express ly affirmed and embodied in treaties and conventions, like the Hague Conventions of 1899 and 1907. Significantly, these rules, by virtue of their force as international customs and their express recognition as generally accepted principles of international law, bind even those states which have not signed these conventions. One defect of customary international law is the difficulty of determining when a practice can be considered to have hardened into custom and thus acquired obligatory character. Unlike conventional law, custom is not formally promulgated or "struck off' at a definite time. Another problem is its inability at times, owing t.o its slow process of e,;oh1.tion1 to adjust to the swiftly moving developments of the international society which it is supposed to regulate. Many of the customary laws of neutrality, for examles on blockade, have become outmoded ple, like the ~ .oh· because of their fail.urP. to keep pace with modern advances, particnlarlv in science, t.ransportation and communication. Custom is distinguished from usage in that the latter, while also a long established way of doing things by states, is not coupled with the conviction that it is obligatory and right. The example given by Oppenheim is the old mari-

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lmERNATIONt\L

While most writers regard treaties and customs as the only primary sources of international law, the Statute of the International Court of Justice has added a third, to wit, the general principles oflaw. The general principles of law are mostly derived from the law of nature and are observed by the majority of states because they are believed to be good and just. Their inclusion as a direct source of international law in the aforementioned Article 36 has been interpreted as a rejection of the Positivist view that international law is binding only when consented to by the family of nations. Although no international convention was necessary to bring them into existence, the general principles of law have nevertheless become universal in application because of the unilateral decision of a considerable number of states to adopt and observe them in recognition of their intrinsic merit. The Roman Law, for example, incorporated therein many of these principles, and numerous other municipal laws hewing closely to Roman Law have followed suit, thereby making the rules common throughout virtually the whole civilized world. It is in this manner .that such concepts as prescription, estoppel, pacta sunt seruanda., consent, and res judicl],ta havP, acquired the status of general principles of law binding as ~uch on the entire international community. It is not easy to identify the general principle of law since it is based on reason and conscience, which are thought by the critics of the Naturalist School to be unreliable and ambiguous standards of international conduct. .. -~ l

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Secondary Sources In considering t he decisions of courts as subsidiary sources of international law, Article 38 does not distinguish between those rendered by international tnbunals like the International Court of Justice and arbitration bodies and those promulgated only by national courts. Both kinds of decisions are acceptable as long as they are a correct application and interpretation of the law of na, tions or, as Fenwick says, "undertake to establish the true rule of international law." In Thirty Hogshead of Sugar v. Boyle,1 Chief Justice John Marshall of the U.S. Supreme Court declared that "the de'!isio~s of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the Law of Nations, in the given case, is understood in that country, and will be ·~nsidered in adopting the rule which is to prevai1

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time ceremonials in the open sea which, although generally observed before, were nevertheless not regarded a8 compulsory.

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in this." Th~&kroiti'nt-of stare decisis is not applicable in international the decision of a court in one case will have only persuasive value in the decision of a subse(luent case. According to Article 59 of the Statute of the Interna. -, of Justice, "The decision of the Court has no 'tional Co\lrt bindi.ng force except between the parties and in respect to

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ths:it particular case." 'Th~ ~~cond eubsidiary source of interr,ational law, viz., the writings of publicists, must also be, to qua1ify as such, a fair and unbiased representation of international law, and by an acknowledged authority in the field. Mere credentials are obviously not enough as the jurist may have been motivated by national pride or interest, or _error,

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Chapter 3

THE INTERNATIONAL CO!VIMUNITY

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THE INTERNATIONAL COMMUNITY may be described as the body of juridical entities which are governed by the law of nations. Under the modern concept, it is composed not only of states but also of such other international persons as the U nited Nations, the Vatican City, colonies and dependencies, mandates and trust territories, international administrative bodies, belligerent communities, and even individuals. 'fhesP. are the gener?lly TP.Mgni?'.P.dl}ppj1i

mlgfJB!~wa.tional law. l-:nhjP-ct. and Object Distinguished

A - - ~{of international law is an entity that has rights and responsibilities under that law. It has an international personality in that it can directly assert rights and be held directly responsible under the law of nations. In other words, it has the faculty of motivation. By this is meant that it can be a proper party in transactions involving the application of the law of n ations among members of the international community. A subject of international law must be distingui~hed from a mere objP.ct. An object of international law is the person. or t:h.ing in rei:;pect 0f which rights a re held and obligations assumed by the subject. It is, therefore, not directly governed by the rules of international law. Its rights are received and its responsibiiities imposed indirectly, through the instrumentality of an intermediate

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Development of the International Community

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The Peace of Westphalia of 1648 signaled the beginning of the modern international community as we unders tand it today. Among the Christian states of Europe which can be regarded as its charter members are England, France, Spain, Portugal, the German Confederation, Poland, and the Italian cities, together with Holland and Switzerland, which last two were formally recognized as independent states by the agreement. Russia was admitted into the family of nations in 1721. The newly-born American Republic followed in 1783. In the next century, many states in Central and South America increased the membership. By the Treaty of Paris of 1856, the Ottoman Empire was admitted as the first non-Christian member of the "concert of Europe" and was soon joined by others like Persia, Japan, China and Siam. The Balkan states had been previously recognized, and, after the first World War, the Baltic states were also accepted. Next came such countries as India, Egypt and other Arabian states, which were accorded either full or qualified status. The Papacy, its temporal power reduced with the annexation of Rome by Italy, continued nevertheless to enjoy a special position in the international society. Many countries in Asia and Africa remained outside the circle until after World War II when, as a result of the growing movement toward self-determination, they were also recognized as independent states. The Philippines w as allowed to participate in several international conferences even before it became independent in 1946. Other Asian states likP. Indonesia, Laos, Cambodia, Malaysia and Burma ,vere r.reateo subsequently and had little difficulty in winning recognition. In Africa, withdrawa'l of European control resulted in the birth and admission of

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the Congo, 'I'angan)~.ka, J\ lgeria, Ug.imda and ot.hP.rs, making the family of nations practically universal.

States From the viewpoint of international law, a state may be defined as a group of people living together in a definite territory under an independent government organized for political ends and capable of entering into international relations. As an international person, it may have full or qualified status, depending upon th e degree of its control over its external affairs. Some writers no longer recognize the distinction between state and natwn, pointing out that these two terms are now used in an identical sense. The appellations given to the defunct League of Nations and the United Nations, and even the "family of nations," are cited in support of this view. Nevertheles5, a respectable r.umber of jurists still hold t.hat whereas the state is a legal concept, the nation is only a racial or ethnic concept. Hackworth, for example, observes that "the term 'nation,' strictly speak· ing, as evidenced by its etymology (nasci, to be born), indicates a relation of birth or origin and implies a common race, usually characterized by community of language and customs."1 Thus understood, a nation may comprise several statBs·, such as Egypt, Iraq, Saudi Arabia, Lebanon, Jor· daP and others, ·which all belong to the Arab n:;\tion. On the other hand, it is also possible for a state to be made up of more than one nation, as in the case of the United States before the emergence of the amalgamated "American nation," and of Singapore and Malaysia at present. Indeed, a nation need not be a state a t all, a fact demonstrated by 1

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the Poles after the dismemberment of their country in 1795 and, later, during World War II, or by the Italians before the state ofitaly was created in 1870. In any event, the state (or nation) should possess the following elements in order to be regarded as an international person: (a) a permanent population; (b) a defined territory; (c) government; and (d) sovereignty or independence. Two other addjtional elements suggested by some writers, to wi~, recognition by other states and possession of a sufficient degree of civilization, have not yet met with general acceptance. (a)

People

People as an element of the state refers to the human beings living within its territory. They should be of both sexes and sufficient in number to maintain and perpetuate themselves. Kelsen observes that they are regarded as a unity. According to him, "Individnals of different races, languages and religions very often actually fonn rmP. 'pP.ople,' that is to say, the peopl~ ,)f nnP. Rb=1tFl.'i2 (b) Territory

Territory is the fixed portion of the surface of the earth in which the people of the state reside. Nomadic tribes and the so-callP-d "moving states" do not, therefore, possess this element. A defined territory is nec8Ssary for jurisdictional reasons and in order to provide for the needs of the inhabitants. Purely as a practical requirement, the territory should be big enough to be self-sufficient and small enough to be easily administered and defended.

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'I'IIE TNTF.RN A.TTONAL CDMMU?HTY

(c)

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Government

Government is defined as the agency through which the will of the state is formulated, expressed and realized. It is necessary in international law because the state must have an entity to represent it in its relations with other states. The form of the government does not matter provid3d it ~s able to maintain order within the realm and comply with its responsibilities under the. law of nations. A group of arll'U''.'hiid:.c: nr ::i Rociety of pirates cannot qL1!:!.lify ~~ !'l

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Sovereignty

Independence has been described as the external aspect or manifestation of sovereignty, that is, the power of the state to direct its own external affairs without interference or dictation from other states. The degree of its freedom in this regard determines the status of the state as an international person. It should be noted, however, that while this freedom is to be desired, its excessive assertion may clP.fP.at ~.t ti.me.~ the effedive operation of the law of nations. AB Jessup observes, "Sovereignty is the quicksand on which the foundations of international law are built:"3

Capaci t,y of States An enW.v possessed of the above-discussed elements is ordinarily r egarded as an international person entitled to membership in the family of nations. However, this consequence does not always or automatically follow. One reason, as will .be seen later, is that the recognition of states is generally considered a political act which may not ::..

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be compelled. Another may be the rest ricted capacity of the state to discharge international obligations, owing either to treaty commitments or to its limited resources. This deficiency has barred the admission of certain states to international organizations. Switzerland, for example, is considered by many as ineligible for membership in the United Nations because its permanent neutralization will· prevent it from participating in the .enforcement or preventive action that may be called by the Security Council. Liechstenstein's application for membership in the old League of. Nations was denied in 1920 because of its limit.ed size, small popula tion, lack of an army, geographical position, and deputation to other states of some of the attributes of sovereignty, a lthough it was admitted that "juridically the Principality of Liechstenstein is a sovereign state." Andorra, Monaco and San Marino were also rejected on similar grounds. The United Nations h as a different at titude. Its policy being to involve in the organization as many members of the family of nations as possible, it has not hesitated to accept applicants that would have been barred by the League of Nationi; because of their limit.ed resources or ~::ipflhilities. Some examples are A11g0ls:1 :,inn G::ihon. 4 Classification of States Sta.tes m.3y generally be classified into independent and dependent states, the former having full international personality. L.u:e.ndel.lV~~t.&.,.'are simple or composite, either of which may be neutralized.,,~~~P:9~nt.:'.s tates are usually exemplified by the protectorate and the s uzerainty and are so called because they do not have fuil control of t , • It has refused to recognize the Transkei, however, because"it is said to be a product of South Africa's apa1theid policy. , ;

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their external relations. Independent States Strictly speaking, sovereignty connotes freedom in the direction by the state of its own internal and external affairs. H owever, international law is concerned only with this freedom in so far as it relates to external affairs; hence, a state which is not st1bject to dictation from others i.n this res pect is known as an independent state. ( ::\)

Simple States

A simple state is one which is placed under a single and centralized government exercising power over both its internal and external affairs. Examples are the Philippines and the Netherlands. (b)

Composite States

A composite state consist of two or more states, each with its own separate government but bound under a cen tral authority exercising, to a greater or less degree, control over tb.§!ir ~xternal relations. The real union?@i~f fil~~~ili~e usually given as examples of composite sta tes ·;vif-.h full international p~r.<~onality, as distinguished from the~.,ffl*:~ti.on~ which is regarded as an imperfect int.ernationafperson. Of doubtful category is the personal union, which will also be discussed below. (1)

Real Union

A real union is created when two or more states are merged u nder a unified authority so that they form a single international person through which they act as one entity. The states forming this union retain their separate identities as such, but their respective international per-

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sonalities are extinguished and blended in the new international person, which, however, is not regarded as a state in itse1f.5 Such a union existed between Norway and Sweden frorn J.81!-5 to 1905, between Austria :rnd Hungary from 1867 to HHS, and more recently between Egypt and S_yTia. (2)

illl

Federal Union

A federal union, or federation, is a combination of two or more sov~reign states which upon merger cease to be states, resulting in the creation of a new state with fu1l international personality to represent them-in their external relations as well as a certain degree of power over their domestic affairs and their inhabitants. An example is the United States. But it should be noted that there are some federations which, conformably to municipal law, do not exercise full dir.ecti.on of ext.err1al r1.ffairs, s0me po,ver oYeI thjs matter being retained by the me111ber states. Of this type was the Geiman Empire under the Constitution of 5 1871. (3)

Confederation

A confederation is an organization of states which retain their internal sovereignty and, to some degree, their external soverejgnty, while delegating to the collective body power to represent them as a whole for cert~n limited anrl specHied purpose,9-. To the extent that thP. ~onfo
A personal union comes into being when two or more independent states are brought together under the rule of the same monarch, who nevertheless does not become one international person for the purpose of representing any or all of them. As in the case of Belgium and the former Congo Free State from 1885 to 1905~ each member remains a state and an international person, although its externs.l policies are a:rected by the same ruler who dictates the foreign affairs of the other components of the union. Strictly speaking, therefore, the personal union is not a composite state because no new international person is created to represent it in international relations. This is pro~a.bly the -r·P,ason why smr,e writers, like Mom·e, rliscuss the personal union under the classification of simple states.

(5) Incorporate Union An incorporate union is a union of two or more states under a t::entral authority empowP.red to dirP,ct both their external,. and internal affairs and possessed of a separate international personality. It differs from a real union in that only external affairs are placed under the control of the latter. An example of an incorporate union is the United Kingdom of Great Britain and Nmthem Ireland.~"

Neutralized States An independent state, whether it be simple or composite, may be neutralized through agreement with other .

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Personal Uni.on

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closely-knit federation.

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INTERNATIONAL LAW

THE 1N1'ERNAT!ONAL COMMU:'.'!ITY

states by virtue of which the latter will guarantee its integrity and independence provided it refrains from taking any act that will involve it in war or other hostile activity except for defensive purposes. This is obviously desirable from the viewpoint of the neutralized state because it will remove itself from the vicissitudes of international politics and all their attendant expense and anxiety. On the part of the guaranteeing states, their reasons may be humani tarian or political: compassion for a weak and small state, balance of power considerations, the necessity for a buffer state to relieve inte1national friction, and the like. Switzerland was neutralized in 1815 and has managed to maintain its status despite the many wars that have engulfed Europe since the Congress of Vienna. Belgium's neutralization was violated by Germany in HH4 and then again in 1939. Ls:tos w9i;: rn:mt.rnli?:P.
Dependent states fall into two general categories, the protectorate and the suzerainty. There is no unanimity as to their basic distinctions, some writers even suggesting that they are identical. One view is that a protectorate always retains a greater measure of control over its external affairs than the suzerainty. But this opinion is reje~ted by others who claim that the distinction between the two is merely one of nomenclature, democratic states preferring the term "protectorate" to "suzerainty" and its suggestion of vassalage. It is also asserted that "in other cases where the protectorate has enjoyed a degree of independence prior to the treaty, its status represents in theory a voluntary act of subordination to the protecting state by contrast with the concession of autonomy made by the suzerain state to the vassal state."'

36

D~p'2'nr1P.1'1 t. ~t.:lt.P.s

The term dependent state is a legal paradox because the status of statehood implies the idea of independence. To say that an entity is a state is to acknowledge, without more, that it is independent or that it is possessed of the indispensable attribute of sovereignty. In light oftti:a:clb. ffiI«iLdoctnne, therefore, the institution or the tlep~~a~-;;i' state presents a curious anomaly. Nevertheless, the phrase has gained wide cuITency among \~·ri.tP-rF: on international law. The reason is the preseP.i::e of a number of entities which, although corn~ monly recognized as states, are subject to the control of other states in the direction of their external affairs. These entities are denominated, for want of a better term, as semi-sovereign or;(qependent states. - -t :t -

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Th~ T_T:r~H':"t:l "N~t.i~n~ Although the United Nations is not a state or a superstate but a mere organization of states, it is regarded as an international person for certain purposes. Like states, although not to the same ~~tent, it enjoys certain _privileges and immunities, such as !non-suability, inviolaO bility of its premises ana archives, and ·exemption from taxation. It has the!l·n ght of legation, i.e., it can send and receive diplomatic agents, who possess the same rights accorded regular envoys. According t0 thP. International Court of Justi,:;e. the Unit~d Nations c1:1n assert a. diplomatic claim on behalf of its officials/ and treaties may also be concluded by it through the General Assembly, the Security Council, and the Economic and Social Council. In addition, trust ten-itories are supposed to be under the residual sovereignty of the United Nations. It can even 7 &

Fenwick, 170. Bernadotte Cas(!, 1949 I. C.J. Rep. 174.

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38

wage war, in a sense, n,~ough the P.xerdse of its po,ver to undertake enforcement ar.t.ion in case of thn~P.t t,_, 0T' 9 breach of international peace. ThA v~t.ir.:::.n

City

The influence of the Pope dwindled with the decline of the Holy Roman Empire and the rise of the spirit of nationalism. The Reformation contributed further to the waning prestige of the. Church as a world leader not only in spiritual but also temporal affairs. With the annexation of the Papal States by Italy in 1870, the position of the Holy See as an international person became anomalous. In 1928, Italy and the Vatican concluded the Lateran Treaty "for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it absolute and indisputable sovereignty in the field of international relations." Although Italy has by this treaty recognized "the State of the Vatican under the sovereignty of the Supreme Pontiff," doubt is expressed by jurists as to its real status in view of its small territory and population and the apparent impairment of its independence by reason of its proximity to Italy, not to m~ntion the fact that its government is organized more for ecclesiastical than for political purposes. Nonetheless, it cannot be denied that the Vatican City e.,"'{ercises cerlain prerogatives of states, such as the treaty-making power and the right of diplomatic intercourse. Moreover, as Kelsen observesIn this (Lateran) treaty, Italy 'recognizes the full ownership, exclusive dominion, and sovereign authority and jurisdiction of the Holy See over the Vatican,' i.e., a certain terl'itory within Rome. That means that Italy gave up a part of its terri-

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tory for the purpose of a new state being established on it. This territory does not exceed one hundred acres; nevertheless, it is the territory of a state. Its population does not reach seven hundred and is composed almost exclusively of individuals re· siding therein by virtue of their office. Nevertheless, it is the population of a state. Since the Pope is the grwer•imi>nt, all thP elements of a state in the sense of intArm1t.ionRl IRw Rm prP.!':P.nt.. ' 0

Colonies and Dependencies

From the viewpoint of international law, a colony or a dependency is part and parcel of the parent state, through which all its external relations are transacted with other .states. As such, therefore, it has no legal standing in the family of nations. Nevertheless, such entities have been allowed on occasion to participate in their own right in international undertakings and granted practically the status of a sovereign state. It is when acting in this capacity that colonies and dependencies are considered international persons. While still a colony of Great Britain, India was allowed qualified membership in the League of Nations, signed the Treaty of Versailles and became a charter member of the United Nations. The Philippines was a signatory of the Universal Postal Union Convention in 1906, the Inte1·national Sugar Agreement in 1937, and the OP.claration by United N ati.ons in 194?, Jater bi=lcoming ()Ile of the original members of the United Nations in 1945. AH these took place before it became independent in 1946. In view of the rise of nationalism and self:detennination, however, the number of colonies has substantially declined.

°Kelsen, 160.

1

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INTF.RNATIONAL LAW

40

Tm~

l.V[andates and Tr,H::t TP.l''1' itodP.s 0

The system of mandates was established after the first World War in order to avoid outright annexation of the underdeveloped territories taken from the defeated powers and to place their administration under some form of international supervision. Its basic principles have been retained in the more. comprehensive trusteeship system devised by the United Nations Charter. )i,•:~• 1milit~inds of t-.rn~Cff.imfon fis.iare. provided for' viz.: w.,;;u.. .. (a) those held under mandate under the l-,eague of Nations; (b) those territories detached from the defeated states after World War II; and (c) those voluntarily placed under the system by the states responsible for their administration. 11 The terms of trusteeship are agreed upon by the administering authority with the Security Council, in the case of strategic areas, and with the General As12 sembly, in the case of non-strategic areas. These territories enjoy certain rights directly available to them under tbe United Nations Charter that vest them with a degree of international personality. They are, however, not sovereign. Relative t,:i thi~ matt.P.r, ,l 11 rl gP- McN air has the following to say: ~\"<: . \ ..•... ~~ •.

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tain recognition as an independent state, as has alrearl.y h:'lppened in the ca:=te of' some of the mandates. sovereignty will ,..,_ vive and vest in t.h~ ""'"" ~t~te. ·•

Practically all trust territories have since achieved indepP-ndence, among them Rwanda and Burundi, and have been admitted to the United Nations. Belligerent Communities

•

Upon sovereignty a very few words will suffice. The Mandates System (and the corresponding principles of the International Trusteeship System) ie a new institution-a spe· cial r~!pJi(l"!',h;r j,,ol-u,,>pr, tP.':r°r\t.(\ry flflrl. ;l'lh"\hit,.Anl;S ".\{I fl1<> "1'~ hand and the government which represents them internationally on the other-a new species of international government, which does not fit into the old conception of sovereignty and which is alien to it. The doctrine of sovereignty has no application to this new system. Sovereignty over a Mandate Territory is in abeyance; if and when the inhabitants of the tenitory ob-

When a portion of the population 1ises up in arms against the legitimate government of the state, the upheaval is ordinarily regarded as a merely internal affair, at least during its initial stages. The state is held internationally responsible for all injuries caused upon third states by reason of the disorder, and the members of the uprising are in turn held accountable for their acts under the laws of the legitimate government. But when the conflict widens and aggravates, it may becl)me necessary to accord the rebels recognition of belligerency. By this the recognizing state, "while not conferring all the rights of an independent state, concedes to the government recognized the rights, and imposes upon it the obligations, of an independent state in matters relating to the war being waged."14 Thus, for purposes of the conflict, and pending deter:mination of whether or not the belligernnt comm•mHy should be fully rec0gnized as a state, it is t.reat.~d as an intermit.ional person and becomes directly subject to the laws of war and neutrality. As such {f6'~h~ativfstate," it is vested with full rights of visitation, search and seizure of contraband articles on the high seas, blockade and the like, and is held directly responsible for its unlawful acts. ~

11

U.N. Charter, Art. 77. 12 Ibid., Arts. 83, 85.

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I::-,'I'FPN/,,f'l(lNAT. LAW

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Intc1~national Administrative Bodies

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it is his state whose right-i.e., the right to have its nationals respected by other states-has been violated. Hence, it is the state of the individual, and not the individual himself, that can be a proper party in the assertion of a claim for damages. Of late, however, the view has grown among many writers that the individual is not merely an object but a subject of international law. One argument is that the individual is the basic unit of society, national and international, and must, therefore, ultimately be governed by the law of this society, including those that are theoretically binding on states as agents of the individual. Moreover, many precepts of the law of nations are directly applicable to or for the benefit of the individual, sometimes even independently of the state to which he may belong. Thus, it is pointed out that(1) The United Nations Charter "reaffirms faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women," and contains many provisions looking to the promotion of these rights. (2) The Universal Declaration of Human Rights, in recognition of "the inherent dignity and of the equal and inaliena9le rights of all members of the human family," proclaims the basic individual rights which all nations are called upon to foster. (3) A number of treaties rlirnctly confer rigbts upon in
Certain administrative bodies created by agreement among states may be vested with international personality when two conditions concur, to wit, that thejr;_purposes are mainly non-political and that they ariautonomous, i.e., not subject to the control of any state. Among these may be mentio11ed the International Labor Organization, the Food and Agriculture Organization, the World Health Organization, and the International Monetary Fund, which may enter into agreements with the United Nations, through the Economic and Social Council, subject to approval by the General Assembly. Other notable examples are the European Commission of the Danube and the Central Commission for the Navigation of the Rhine, which both exercise legislative, administrative and judicial powers directly applicable to individuals. Worthy of note in this connection are the extinct trading corporations like the Dutch West India Company and the British North Borneo Company, which were vested with certain powers of sovereignty and enjoyed for some time a qualified international personality. Such corporations have ceased to be snbjei::ts of international law, their unusual powers having been re voked by their respectiv~ gov'=rn.n,':"n~~

Traditional concept regards the individual only as an object of international law ,vho can act only through the instrumentality of his own state in matters involving others states. If he is injured, for example, by reason of a wrong imputable to a foreign jurisdiction, he can secure redress only with the assistan,~ ·and representation of his own state, and not otherwise. 'rp.e reason is that, in theory,

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INrEP"-' An 0t,AL LAw

(4) Sta tes are obliged to maintain an international standard of justice in connection with the treatmen t of aliens within their jurisdiction, failing which they may be held liable in damages for the injury suffered by such foreigners . (5) The Genocide Convention condemns the mass extermination of national, racial or religious groups as a crime under international law and makes the perpetrators thereof, states as well as individuals, subject to punishment. (6) The Nuremberg and Tokyo war crimes trials attached direct responsibility to individuals for offenses committed by them in violation of the law of nations, whether it be on their own responsibility 01· on behalf of their states. (7) Pirates have been immemorially regarded as hostes humanis generis and are directly and individually punishable for their acts by whichever state may have them in custody. (8) Certain laws of war and neutrality, such as the rules on carriage of contraband and breach of blockade, procedure before prize courts, espionage, treatment of the sick and wounded, and the rights of prisoners of war , directly affect the individuals themselves rather than the states to w hich they belong. (9) The Hague Convention of 1930 lays down specific rules intended to prevent or minimize the anomalous condition of statelessness. (10) The Convention Relating t..o the St.a tus of Stateless Persons bestows cer.tain right.s in favor of individuals who otherwise, for lack or loss of nationality, cannot invoke the assistance or protection of a ny state. (11) The doctrine of incorporation makes the law of nations part of ip.~picipal law, and, hence, directly applicable to the individual inhabitants of the state.

.:th-

Chapter 1 THE lTNITRn NATIONS

THE UNITED NATIONS emerged out of the travail of World War II as a symbol of man's undismayed determination to establish for all nations a rule of law that would forever banish the terrible arbitrament of war in the solution of international disputes. In the midst of the immeasurable tragedy and suffering caused by the greatest conflict ever inflicted upon humanity during its long and violent history, the new organization was hopefully envisioned as the a nswer to the universal yearning for peace and friendship among all peoples regardless of color or creed. The idea behind the United Nations was not a new concept, for forward-looking statesmen and jurists through the ages have proposed and nurtured plans for some kind of world government to which national sovereignties would be subject and under which all nations would work together in pursuit of their common purposes. However, it was only after World War I that the first concrete step in this direction was taken with the organization of the League of Nations. Unfortunately, certain inherent weakness of this body, coupled with the fact that the United States was not a member thereof, consider ably impaired its effectiven ess in the maintenance of international peace, which was finally shB.ttered in 1939. In 194'3, shortly after the war it had failed to preve11.t. the League of N::itionR waB formally dissolved. Even while World War II was still raging~ the movement toward a new international organization was steadily •

45

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T HE UNITED NA'l'l0 1'1:3

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There has thus come into existence a new intemational person, an organization unique in character, the objectives of which are of such transcending character that ifit should function with any degree of efficiency it may be expected to supplant in due course the older and looser organization of the international community. For the time being the two organizations exist side by side. Rules of customary law will bind states as members of the international community; and it will be to the law of the international community that appeal will be made when controversies arise concerning the scope and effects of customary law. On the other hand, the Charter of the United Nations contemplates that the General Assembly will initiate studies and make recommendations for the purpos':! of pro· mating the progres"ive development of international law ?nd its codifieation. TI1e 1esult of this will be to bring into effect by degrees a body of treaty law which will outmode the existing customary law. When that happens, membership in the older community of nations will have lost its meaning.'

The U.N. Charter The United Nations Charter is a lengthy document consisting of 111 articles besides the Preamble and the concluding provisions. It also includes the Statute of the International Court of Justice which is annexed to and made an integral part of it. In one sense, the Charter may be considered a treaty because it derives its binding force from the agreement of the parties to it. In another sense, it may be regarded as a constitution in so far as it provides for the organization and operations of the different organs of the United Nations and for the adoption of any change in its provisions through a formal process of amendment. It is significant that the Charter is intended to apply not only to the members of the Organization but also to non-member states "so far as may be necessary for the

maintenance of international peace and security." Furthermore, it is provided in Article 103 that "in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.'.a Amendments to the Charter shall come into force for all members of the United Nations wben they have been adopted by a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two-thirds of the members of the United Nations, including all the perma4 nent members of the Security Council. A general conference may also be called by majority vote of the General Assembly and any nine members of the Security Council for the purpose of reviewing the Charter. Amendments may be proposed by two-thlrds vote of the conference and shall take effect when ratified by two-tlurds of the Members of the United Nations, includ5 ing the permanent members of the Security Council.

The Preamble to the Charter The Preamble introduces the Charter and sets the common intentions that rnovP.d the original members to unite their will and efforts to achieve th':!ir ~0mmnn Pnrpases." Th':! Pr':.'f1.mhl0 rP.::irl~ :ois follmvs:

1

U.N. Charter, Art. 2(6).

s Ibid., Art. 103.

'Ibid ., Art. 108. 5 lbid .. Art.. 109

UNC!O, Rep01t of Rapporteur of Comrnjtt ee 1 to Commission 1, Doc. 944, 1/]}34(1), 1-2. '.- ~ : 5

' Eenwick, 183.

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THE

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to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and bt>.ttP.r standards of' lifP. in larger freedom,

AND FOR THESE ENDS to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international petJf.'P and security, and to ensure, by the acceptance of principles and the institution of methods that armed force shall not be used, sa11e in the common interest, and to employ international machin£1)' for the promotion of the economic and social advancement of all peoples,

HAVE RESOLVED TO

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COMBINE OUR EFFORTS TO

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ACCOMPLISH THESE AIMS. Accordingly, our respective Governments, through representatives assembled in the City ~f_ $an Francisco,

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who have exhibited their full powers found to be in good and due form, haue agreed to the present Charter

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

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of the United Nations and do hereby establish an international 01-gr:111 i.-::-1Jtirm fn hP knn11111. n..~ thP. TlnitPft. Nations.

Purposes The Purposes constitute the raison d'etre of the United Nations and are "the aggregation of the common ends," the cause and object of the Charter to which the 7 member states collectively and severally subscribe. They are expressed in Article 1 as follows: 1. To maintain international peace and secu rity, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve intem(l.tional cooperation in soluing international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and ~

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4. To be a center for harmonizing the actions nf natir:,11 <: in the attainment of these common ends.

depends to a large extent on the vvillingness of the member-states to comply with the obligations they have assnm~d under the Charter.

Principles

~ ·

3. All Members shall settle tht>ir international disput.eB by pear.efnl mP.ans in .such a manner that international peace and security, and justice, are not endangered.

The Principles, as enumerated in Article 2 of the Charter, deal with the methods and the regulating norms according to which the United Nations and its members shall discharge their obligations and endeavor to achieve their common ends.8 The seven cardinal principles are the following.

This rule is itself a generally accepted principle of international law. The more common amicable methods of settling international disputes (which are discussed in Chapter 17) include the active participation of, principally, the International Court of J ustice and the Security Council and sometimes even the General Assembly.

1. The Organization is based on the principle of the sovereign equality ofall its Members.

This rule _is itself based on one of the fundamental rights of states, viz., the right of equality. (See Chapter 9.) Under this principle, all members of the Organization, regardless of their size or influence, have, for example, the same vote in the General Assembly. Certain special rights over and above those of other members are, however, reserved to the so-called Big Five; on the other hand , the smaller states are not subjer.te.d to the same fin an~i ::i l , P..:pnMi hilities as the affluent members.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. This is the most important principle of the United Nations. Previous international conventions, including the Covenant of the League of Nations and the KelloggBriana Pact, did not contain a provision like the above, which is a categorical outlawry of war and al l forms of force as a method of settling differences among states. This rule prohibits threat or force upon the territoria.l integrit.y or political independence of any member of the United Nations, E!:1.V':' in in.:t.Rnc~R to be noted later.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall ful.fill in good fa.ith the obligations assumed b.1 them in accordance with the p1'esent Charter.

1

TI1P. ba~is of this rule is}pac.tq,.1~unt y,. _,,........ . servanda, which calls for the observance of treaties iri good faith. As previ · ously observed, the United Nations Charter partakes of the nature of a treaty. The importance of this principle cannot be minimized, as th.e;success of the Organization s Ibid.

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THE UNITED NATIONS

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ing assistance to any state against which the United Nations is taking preventive or enforcement action. The efficacy of the United Nations will depend, of course, upon the cooperation extended to it by the member -states. Otherwise, the resolutions adopted and all other action agreed upon by the membership will be nothing but paper decisions and mere lip service to its avowed objectives. To ensure their full implementation, there is a necessity for the unreserved involvement of the members in the activities of the Organization.

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6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. Treaties are usually binding only on the signatories thereto. Under the above rule, however, even nonmembers are covered by the obligations imposed by the Charter for the maintenance of intP.rnational peace and security. At least, the mP-mber-states are enjoined to SAP. to it that thP. non-members comply wi t.h l'mch obligations. 7. Nothing contained in the pre,qent Charter shall autlwrize tM. United NatioM to intervene in matters whi,eh are essentially within the dome:1,tir. jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the ap plication ofenforcement measures under Chapter VII.

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'This is commonly known as the "dcmest.icjurisdiction clause." As long as the matter remains internal, the same cannot be the subject of intervention by the United Na-

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tions. Hence, a rebellion in a state ordinanly cannot come under the jurisdiction of the Organizal 1on. The exceptions are where the internal conflict aggravates into a threat to or an actual breach of international peace and security or where the parties voluntarily invoke and submit to the jurisdiction of the United Nations for the settlement of their dispute.

In 1960, for exa mple, what started as a civil war in the Republic of the Congo became in fact an international war between t he socialist states and the Western dernoc· racies. The United Nations sent a n expeditionaiy force that ultimately succeeded in restoring international peace and security.

Membership There are two kinds of members in the United Nations: the original and the elective. The distinction between the two is based only on the manner of their admission and does not involve a ny difference in the enjoyment of rights or the discharge of obligations. Both kinds of members are governed in the same degree by the Charter of the Organization. The original or charter members are those states which, having participated in the United Nations Conference on International Organization at San Francisco or having previously signed the Declaration by the United Nai;ions of J anuary 1, 1942, signed and r~.tifiP.d the Charter of the United Nations.q Interestingly, the Philippines, India, Lebanon and Syria were included as original members although they were not yet states at the time. The Ukraine and Byelorussia were also considered separate original members _notwithstanding that they formed part

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barred from the League of Nations on the ground that they might not be able to comply with their responsibilities under the Covenant, this qualification has not been strictly enforced. (5) It must be willing to carry out these obligations. Also a subjective standard, this qualification was the basis of the initial opposition to the application of Albania, which was charged with, among others, failure to agree to the referral of the Corfu Channel dispute to the International Court of Justice. The United States initially blocked the admission of Vietnam because of its alleged refusal to release American prisoners of war. Can the General Assembly admit an applicant for membership withQut the favorable recommendation of the Security Council? In holding that this c0t1ld not be rt()ne, the Internat.i0ri~l r.r111rt of ,Jn~t:ice declared as follows:

of the Union of Soviet Socialist Republics. All told, there were fifty-one origina 1 members although one of them, Poland, was unable to participate in the drafting of the Charter. In addition to the original members, other members may be admitted to the United Nations by decision of the General Assembly upon the favorable recommendation of the Security Council. 10 To be eligible for admission, the 11 applicant must possess the following qualifications: (1) It must be a state. Contrary to the policy of the defunct League of Nations, the United Nations appears to be in favor of the admission of even the so-called "mini-states," like those "graduated" from trust territory to republic. Among such states are Bahrain, Bhutan, Qatar, and Oman. (2) It must be peace-loving. This is a subjective standard that can lead to political rather than legal decisions, as evidenced by the delayed admission of Thailand because of F rench opposition to it for its alleged invasion of Inda-China and the Russian objection to the application of Ireland on the ground that it did not help the Allied Powers during World War IL (3) It mu.st accept the obligations of the Charter. Although this r~quires only a formal declaration from the applicant, it is subject to the fourth and fifth requirements aR deterrninP.il. hy the Organization itself. ( 4) It must be able to carry out these obUgations. The view, for example, is that Switzerland, being a neutralized state, cannot carry out the obligation of preventive or enforcement action that may be decreed by the Security Council. With respect to small states, however, which were 10

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The Court is called upon to determine solely whether the General Assembly can make a decision to admit a State when the Security Council has transmitted no recommendation to it. Article 4, paragraph 2, is as foll ows: 'The admission of any such State to membership in the United Nations will be effected by a decision of the Ckneral Assembly upon the recommendation of the Security Council.' The Court has no doubt as to the meaning of this text. lt requires two things to effect admission: a 'recommendatio.n' of the Security Council and a 'decision' of the General Assembly. It is in the nature of things that the recommendation should come before the decisiov.. The word 'recommendation,' and the word 'upon' preceding it, imply the itJ.e<\ that t:he recommendation is the foundation of the d':.'~i..-,10Tl. tc, arl.mit., ~mrl th'it tJ, ... l.R t. ter rests upon the recommendation . Both these acts are indispensable to form the judgment of the Organization to which the previous paragraph of Article 4 refers. The text under consideration means that the General Assembly can only decide to admit upon the recommendation of the Security Council; it determines the respective rules of the twp ·organs whoee com-

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THE

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58

bined action is required before admission can be effected; in other words, the recommendation of the Security Council is t he condition precedent to the decision of the Assembly by which 11 the admission is effected. •

Suspension of Members A member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be s uspended from the exercise of its rights and privileges. As in the case of admission, suspension is effected by two-thirds of those present and voting in the General Assembly upon the favorable recommendation of at least nine members of the Security Council, including all its permanent members. The suspension may be lifted alone by the Security Council, also by a qualified majority 12 vote. The s uspension of a member will prevent it from participating in the meetings of the General Assembly or from being elected to or continuing to serve in the Security Council, the Economic and Social Council or the Trusteeship Council. Nationals of the suspended member may, however, continue serving in the Secretariat and the International Court of Justice as they are regarded as international officials or civil servants acting for the Organiz ation itself. Since its suspension affects only its rights and privileges, the member is still subject to the discharge of its obligations under the Charter, such as the payrnent of its financial contr,butions to the Organization. Exp1J.lsfon ')f M.flmhers

A member which has persistently violated the principles contained in the Charter may be expelled by two-

Utmrw NATIONS

thirds of those present and voting in the General Assembly upon the recommendation of the Security Council by a qualified majority vote. 1~ The aim is to provide for a stronger penalty than mere suspension against a member that "would have demonstrated that it did not satisfy the basic requirements of membership, and would be like a cancerous growth which it would be better to remove completely than to allow to remain in thP. ho
No provision on withdrawal from membership was included in the Charter because of the fear that it might encourage successive withdrawals that would weaken the Organization. Nevertheless, the San Francisco Conference approved a special committee report which, while not categorically permitting or prohibiting withdrawal, expressed the view that a member might withdraw from the United Nations if: (a) the Organization was revealed to be unable to maintain peace or could do so only at the expense of law and justice; {b) the member's rights and obligations as such were changed by a Charter amendment in which it had not concurred or which it finds itself unable to accept; or (c) a n amendment duly accepted by the nl-lcessary majority either in the Ganeral As,;emhJ,y or in a general conference is not rntified.Jf, It will Le recalled that Indonesia withdrew from the United Nations in 1965 but resumed its seat, to the standing ovation of the other members, after the overthrow of Sukarno.

11

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Organs of the United Nat.ion~

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The six principal organs of the United Nations are the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the Interna1 tional Court of Justice and the Secretariat. u The subsidiary organs are those which have been 17 created by or in accordance with the Charter, such as the Military Staff Committee, the International Law Commission, and the Commission on Human Rights. These are not to be confused with the so-called specialized agencies which a re not part of the United Nations but are brought into close contact with it because of their purposes and functions. Among theF<e are the World HeEt lth Organization, the International Mon':'t.::n·y 'fi 11nd, and the T<:>~hnic.al Assistance B0~n·rl 1

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The General Assembly is the most representative of the organs of the United Nations. It consists of all the members oft.he Organization, each of which is-entitled 18 to send not more than five representatives and five alternates as well as such technical staff as it may need. The Gener a 1 Assembly meets in regular anm.1 al ~ei:;sion beginning on the third Tuesday of September or in special session at the call of a majority of its members or at 19 the request of the Security Council. 20 Each member of the General Assembly bas one vote. Decisions on "important questions," such as recommenda----- ···Y":s - --::.~

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(1) Deliberative, such as initiating studies and making recommendations toward the progressive development of international law and its codification and recommending measures for the peaceful adjustment of any situation which it deems likely to impair the general welfare or friendly relations among nations. (2) Supervisory, such as receiving and considering annual and special reports from the other organs of the United Nations, making recommendations for the coordination of their various functions, and approving trusteeship agreements in non-strategic areas. (3) Financial, such as the consideration and approval of the budget of the Organization, the apportionment of expenses among its members and the approval of financial arrangements with specialized agencieE:. { 1} Elective, S'lch c1s the election 0f the nonpermanent members of the Security Council, all the members of the Economic and Social Council, and some of the members of the Trusteeship Council, as well as, in concurrence with the Security Council, the Secretary-General and the judges of the International Cou1t of Justice.

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tions concerning international peace and security, election of members of the Councils, admission, suspension and expulsion of members, questions relating to the trusteeship system, and budgetary matters, are taken by two21 thirds of those present and voting. All other matters, including the determination of whether a question is important or not, are decided by a majority of those present and voting. 22 The functions of the General Assembly may be classified and illustrated as follows:

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(5) Constituent, such as the admission of members and the amendment. of t.hP- Charter of th':' rlnit.erl Na 23 tions. (b)

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The Security Council is supposed to be so organized as to be able to function continuously, and for this purpose all its members shall be represented at all times at the seat of the Organization. 77 The idea is for the Council to hold itself in readiness at all times in case any crisis should arise in any part of the world. Chairmanship of the body is rotated every calendar month on the basis of the English alphabetical order of the names of the members. 28 Voting in the Security Council is governed by the Yalta formula as devised at the Crimea Conference and , subsequently incorporated in Article 27 of the Charter. According to this formula, each member shall have one 29 vote, but distinction is made between the Big Five and the non-permanent members in the resolution of substantive questions. Procedural matters are to be decided by the affirmative vote of any nine or more members.30 Decision on non-procedural questions, on the other hand, requires the concurrence of also at least nine members, but including all the permanent members. However, no member, permanent or not, is allowed to vote on questions concerning the pacific settlement of a dispute to which it is a party. 81

The Security Council

The key organ of the United Nations in the maintenance of international peace and security is the Security Council. It consists of five permanent members and ten elective mem bers. The first group, commonly known as the Big Five, is composed of China, France, the United 2 Kingdom, Russia, and the United States. ~ The other members are elected for two-year terms by the General Assembly, five from African and Asian states, two from Latin American states, two from Western European and other states, a nd one from Eastern European states. The non-permanent members are not eligible for immediate reelection. 25 Provision was also made for the staggering of their terms so that one-half of them now retire and are replaced every year. 26 The permanent membe1·s of the Security Council were given a preferred position because of the feeling that they were the states that, in view of their prestige and power, would be called upon to provide the leadership and physical force that might be needed to preserve the peace of the world. On the other band, the geographical distribu· t.ion of the non·-r~rrnanent mem bers, as provided for in the amendments to the Charter which were adopted in 1965, was a recognition of the relative importance of the areas affected in the maintenance of international order.

Procedural matters include questions relating to the organization and meetings of the Security Council, the establishment of subsidiary organs and the participation of states pa rties to a. dispute in the discussions of the organ. Non·prncedural matters a re those that may require the Security Council under its responsibility of maintaining or restoring world peace to invoke measures of en-

21

Goodrich and H~hro, 25-26. U.N. Charter , Art. 23(1). The U.S.S.R. has been replaced by Russia. . ~ 25 Ibid. , Art. 23(2); as ~ended. 18 Ibid., Art. 23(3.): j ,

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forceme nt. Unlike in the General Assembly, th e "characterization" of a question is considered a non-procedural 32 matter in the Security Council. The above rules enable a permanent member to cast what is known as a '
unl~ss the ~arties thern~elves submit the matter to P}.e. Umted Nations. Otherwise, the intervention of the Security Council would violate one of the principles of the Organization, to wit, that it shall not intervene in any ma tter within the domestic jurisdiction of any state. 3 The Security Council also approves trusteeship agreements in strategic areas and performs a number of important voting and constituent functions, such as those relating to the a.dmis sion and discipline of the members of the United Nations, the election of the judges of the International Court of Justice and the Secretary-General, and the a m':'ndm':'~'t ,:if t.hP 0.hi:irtP.r.a·' ij

(c) The Economic and Social Council The Economic and Social Council originally consisted of only eighteen members but the body was enlarged to twenty-seven by the amendments to the Chl3.rter adopted in 1965. It was further expanded to fifty. four by amendments adopted in 1971.33 All the members are elected by the General Assembly for three-year term~ and may be re-elected immediately.39 The terms h ave been so staggered as to provide for the :replacement. or rP.·~1ection of one- fl, i rel ()f t.Jv'\ ·hnny P.ver:v yP.ar.40 The Economic and Social Council shall meet in regular session as required in accordance with its rules and in special session at the request of a majority of its members.41 Each member has one vote and decisions are

36

~ See -generally Goodrich aa Ibid. , 223.

Ibid., Art. 2(6). "38 U.N. Charter, Arts. 4, 5, 6, 24, 83, 97; Statut.e ofI.C.J., Art. 8.

and Hambro, 221-223.

Ibid., Art. 61(1).

39

Ibid., 61(12). 0 ' Ibid., Art. 61(3). 1 ' Ibid., Art. 7 2(2) .

"' U .N. Charter, Chapter VI. 5 ~ lb,}cf,_ Arts. 41, 42.

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reached by a majority of those present and voting. Members of the United Nations and representatives of the specialized agencies may be allowed to participate, with43 out vote, in the deliberations of the Council. Responsibility for the promotion of international economic and social cooperation is vested in the General Assembly and, under its authority, the Economic and Social Council. 44 SpecificaUy, these organs should exert efforts toward:

1. Higher standards of living, full employment, and conditions of economic and social progress and development; 2. Solutions of international economic, social, health and related problems, and international, cultural and educational cooperation; and 3. Universal resp ect for, and observance of, human right.CJ rmd fundamental freedoms for all wifhn11.t distinction as to rt:rr·P, .c~P-X, langua.Re cir ?Pliginn.

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In the performance of this duty, the Economic and Social Council is assisted by certain subsidiary organs like the Commission on the Status of vVome11 and the regional economic commissions for Europe, Asi~ and the Fl:lt East. and Latin America. It also collaborates and may enter into agreements, subject to the approval of the General Assembly, with specialized agencies like the International Monet ary Fund and the International Trade Commission.

d~; t, , ~

The Trusteeship Council is the organ charged with the duty of assisting the Security Council and the General Assembly in the administration of the international trusteeship system. The Trusteeship Council is composed of: (a) the members of the United Nations administering trust territories; (b) the permanent members of the Security Council not administering trust territories; and (c) as many other members elected for three-year terms by the General Assembly as may be necessary.to · ensure that the total number of members of the Trusteeship Council is equally divided between those Members of the United Nations which administer trust territories and those which do not.~ The Trusteeship Council shall meet in regular session as required in accordance with its rules and in spe cial session at the request of a majority of its members.'~ Each member has one vote and decisions are reached by a majority of those present and voting. 47 For the purpose of supervising the administration of the trust territories, the General Assembly and, under its authority, the Trusteeship Council may: (a) consider report.:, submitted by the administering authorities; (b) accept petitions :ind examin9 t},em in t'.()nsultation with fl1e administering authorities; (c) proYide for periodic vfajts t-0 the trust territories at times agreed upon with the administering authorities; and (d) take such other actions in conformity with the terms of the questionnaire on the political, econoffi:ic, social and educational advancement of

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INT&RNATIONAL LAW

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4

the it1hah.itants of the trust terr:itories. is The Trusteeship Council has largely hecome obsolete with the conversion of practically all trust territories int.0 full-fledged miniature states. (~)

The International Court of Justice

The judicial organ of the United Nations is the International Court of Justice, which functions in accordance with the Statute.49 All members of the Organization are ipso facto parties to the Statute.50 A non-member may become a party on conditions to be determined in each case hy the General Assembly upon the reconunendation 51 of the Security Council. 52 The Court is composed of fifteen members who are elected by absolute majority vote in the General Assembly and the Security Council. 53 The judges must be of high moral character and possess the qualifications required in their respective countries for appointment to their highest judicial offices or are jurisconsults of recognized competence in international law.54 No two of them may be nationals of the same state,55 and in the event that more than one national of the same state obtain the required majori56 ties, only the eldest shall be considered elected. It is also provj
[bid., Arts. 87, 8~. Ibid., Art. 92. M Ibid, Art. 93(1). 51 Ibid., Art. 93(2). 52 Statute of the I.C.J., Art. 3(1). ~ Ibid., Arts. 4, 10(1). s• Ibid., Art. 2. ,16 Ibid., Art. 3(1). r,• U .N. Charter; Art. 10( 1). 48

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forms of civilization and the principal legal systems of the world.° 7 The members of the Court have a term of nine years and may be re-elected. The terms of the original members were staggered in such a way as to provide for the election of one-third of the membership at threeyear intervals. 58 No judge can be removed unless, in the unanimous opinion of the other members, he has ceased to fulfill the required conditions.59 The Court shall elect its President and Vice-President, who shall serve for three years and may be reelected.60 It shall remain permanently in session, at the Hague or elsewhere, except during the judicial vacations,01 and may meet either en banc,62 or in chambers composed of three or more judges, to deal with particular categories of cases such as those relating to labor, transit and communications. 63 All questions are decided by a majority of the judges present,64 the quorum being nine when the full Court is sitting.6~ The functions of the Court are to decide contentious cases and to render advisory opinions.66 Only states, including non-members of the United Nations, may he parties in contentious cases.,;7 The jurisdiction of the Comt is h~.<::P.cl on thP. r.on.<::P.nt. of t.hP. p::irt.iP..<:: ::i~ m::inlfi:,~t.P.rl nnclP.r

~, I!Jid., Art. 9. ~e Ibid., Art. 13. SB Ibid., Art. 18(1). 60 Ibid., Art. 21(1 ). 61 Ibid., A.tts. 22(1), 23( I). 6 t Ibid., Art. 25(1). 63 Ibid., Art. 26(1). s, Ibid., Art. 55(1). 66 Ibid., Art. 25(3). 6 " Ibid., Ch~pters II, IV. 67 Ibid., Ar ts! 34, 35 .. I.

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the "optional jurisdiction clause" in Article 36 of the Statute and comprises all cases which they refer to it a nd all matters especially provided for in the Charter or in treaties and conventions in force. Adviso1y opinions may be given by the Court upon request of the General Assembly or the Security Council, as well as other organs of the United Nations, when authorized by the General Assembly, on legal questions arising within the scope of their activities.68 (f)

'The Secretariat

The chief administrative organ of the United Nations is the Secretariat, which is headed by the SecretaryGeneral. The Secretary-General is chosen by the General 69 Assembly upon recommendation of the Security Council. His term is fixed at five years by resolution of the General Assembly, and he may be re-elected. The Secretary-General is the highest representative of the United Nations and is authorized to act in its behalf. When acting in this capacity, he is entitled to full diplomatic :immunities and privileges which only the Security Council may waive. The immunities and privileges of other key-officials of the United Nations may be waived by the Secretary General. Of great significance is his duty to bring to the attention of the Security Council any matter which in his opin10 ion may threaten international pea~e ~nd !'\ecurity. Such matter may be personally mediated by him np011 irnt.hority of the Security Council.

U .N. Charter, Art. 65(1); U.N .. Charter, Art. 69. Ibid., Art. 97. ro Ibid., Art. 99. ·• i , ,

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The Secretary-General also acts as secretary in all the meetings of the General Assembly, the Security Council, the Economic a nd Social Council and the Trusteeship Council and performs such other functions as may be assigned to him by these organs. 11 In addition, he prepares the budget of the United Nations for submission to the General Assembly, provides technical facilities to the different organs of the Organization, and in general coordinates its vast administrative machinery. The Secr&tary-General and the members of his staff are international officers solely responsible to the Organization and are prohibited from seeking or rerP.iving instruction from any government or any other authority external to the United Nation~. 12

; 1 .1 Ibid., Art. 98. ·..i j(: t U.N. . Charter, A.rt. 100. j fI; 1

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Chapter 5

THE CONCEPT OF THE STATE AS THE BASIC UNIT of the international community, the state is the principal subject of international law. It is, therefore, important to understand its concept, the manner of its creation, it.q right.s and resp0nsihilities, the duration of its existence, aj-;rl t.hP. modes and effect8' 0f it.~ P.xtinction.

Creation of the State The definition and elements of the state have already been discussed in Chapter 3. It is worth repeating at this point, however, that an entity acquiring the four essential elements of people, territory, government and sovereignty is regarded in law as having achieved the status if a state and may, therefore, be treated as an international person. The generally accepted methods by whlch this status is acquired are revolution, unification, secession, assertion of independence, agreement and attainment of civilization. The United States was created as a result of the revolution against British rule of the thirteen original colonies that first formed a confederation in 1781 and then a federation in 1789. The state of Italy grew out of the unification of the independent city states of Sardinia, Florence, Naples, Rome and others in 1870 under the so-called "principle of nationalities.'' Bangladesh became a separate state when it seceded from Pakistan in 1971. The fourth method is illustrated by the Philippines, which became

72

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a state by assertion of its independonce following tbe for mal withdrawal therefro111 of American sovereignty in 1946. The Kingdom of the Neth erlands was created by tbe Congress of Vienna of 18!5, and Poland, more recently, was revived as a separate atate by agreement of the victorious powers after World War II. Japan is the best example of a country that becallle an intern~l:inni:i l pP.rson by attainment of civilization. Tlu~ Principle of State ~ontinuity

From the moment of its creation, the state continues as a juristic being notwithstanding changes in its circumstances, pi-ovided only that they do not result in loss of any of its essential elements. As Fenwick puts it, "Once its identity as an international person has been fixed and its position in the internatiotial community established, the state continues to be the aame corporate person whatever changes may,,1take place in its international operation and governmen. t Thus, reduction of its population owing to, say, a natural calamity like an earthquake will not cause the extinction of the state as long as a substantial number of the people survive. Neithet will loss of part of its territory provided that the remainder is still sizable. The continuity of state life is also not imDaired by changes in the form of government, as when. a republic is conv~rted into a t0talitarian regime, or by replaeement of the chief of' state even through violent methods. Limitation of sovereignty, as when an independent state becomes a protectorate, only reduces it to the status of a dependent state but does not entire:i:, deprive it of intern.ational personality.

' Fenwick, 158.

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INTERNATIONA'-

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This p1inciple of state continuity, as it is called, was 2 applied in the famous S apphire Case. Louis Napoleon, as Emperor of France, filed in a California court a civil claim for damages in connection with a collision between the French vessel Euryale and the S apphire but W A.S subse·· quently deposed while the case wa.s pending. On the l>:!gal effect nf this development on th e litigati0r1, t.hP. [ J.S. Su preme Court h l'lc1 thP. follov,':ing t0 Rl'ly:

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The question of state succession will a rise in the event that a state is extinguished. or is created as a result of any of the methods previously discussed. State succession takes place when one state assumes the rights and some of the obligations of another because of certain changes in the condition of the latter. 3 Such succession may be either universal or partial. There is universal succession when a state is annexed to another state or is totally dismembered or merges with another sta te to form a new state. In all of these cases, the internation dl personality of the former state is completely absorbP-
Neveitheless, it is error oo suppose that a state is immortal, for the fact is that it is possible for it to be extinguished, or "die" in a legal sense. For example, the population may be completely wiped out by an epidemic or a t hermonuclear explosion; or it may emigrate en masse. Tt.s government may b8 overthrov1 n without being replaced, resulting in anarchy. The state may merge with another state ·or its territory may be dismembered or annexed by 1

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Succession of States

E::irHn~tion o f the State

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others. If it is a federation, it may be broken up or dissolved by the withdrawal of all its members. In the case of an independent state that becomes dependent, there is to the extent that it is deprived of freedom to direct its external affairs a partial 1oss of its international personality. In every one of these instances, there is a radical impairment or actual loss of one or more of the essential elements of th"' ~t.ate tfo,1t will rei:;u}t in its ext.inl".ti0n.

The next question is whether the s wt has become abated by the recent deposition of the Emperor Napoleon. We think it has not. The reigning sovereign r epresents the national sover· eignty, and the sovereignt y is continuous and perpetual, re· siding in the proper successors of the sovereign for the time being. Napoleon was t he owner of the E uryale not as an individual but as sovereign of France. This is substantia lly averred in the libel. On his deposition the sovereignty does not change but mer ely the person or persons in whom it resides. The foreign state is the true and real owner of its public vessels of war. The reigning Emperor, or National Assembly, or other actual person or party in power, is but the agent and representative of the national sovereignty. A change in such rep· res entative works no change in the national sover eignty or its rights. The next successor recogni.zerl by our go·,ernment is competent to carry on a suit ?l=Any mmroenced and re,;~i.'"" t he fruits of it.

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Consequences of State Succession Uprm ~ change of sovereignty as a re..sul t of st.Ate 8UC· cession, the allegiance of the inhabitants of the predecessor state in the territory affected is transferred to the sue-

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lm' ERNA'I'IONAL T,AVi

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cessor state. Usually, they are also n aturalized en masse, as when Philippine citizenship was conferred on the inhabitants in general of the Philippine Islands under the provisions of the treaty of cession between Spain and the United States. The political laws of the former sovereign are automatically abrogated and may be restored only by a positive act on the part of the new sovereign. But non-political laws, such as those dealing with familial relations, are deemed continued unless they are changed by the new sovereign or are contrary to the institutions of the successor state.5 Treaties of a political and even commercial nature, as well as treaties of extradition, are also discontinued, ex cept those dealing with local rights and duties, such as those establishing easements and servitudes. Sometimes the successor state stipulates in appropriate treaties or by formal proclamation the international corrunitments it is willing to respect. All the rights of the predecessor state are inherited by the successor state but this is not so where liabilities are concerned. The successor state, in fact, can determine which liabilities to assume and which to reject solely on the basis of its own discretion. For example, contractual and tort liabilities generally do not devolve on the successor state, although there certainly is nothing to prevent it from assuming them. Thus, it was provided in Article X\11, Section 1(3) of the 1935 Consti~.ution that "the debts and liabilities of the Philippines, its provinces, cities and municipalities which shall be valid and subsisting at the time of the final and complete withdrawal of the sovereignty of the United States shall be assun:.~ by the free l:1.:.-;::

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and independent government of the Philippines." On the other hand, the United States did not assume the debts pertaining to the Philippine Islands at the time of its ces8ion under the Treaty of Paris of December 10, 1898. In People v. Perfecto, the defendant was prosecuted for having published an editorial against certa.ln members of the Senate in violation of Article 256 of the Spanish Penal (',ode which punished "any person who, by word, deed, or writing, shall defame, abuse, or insult any Minister of the Crown or ot.ber person in authority.'· In holding that the said article was no longer in force riming the Ar~1f:>ri<>sin rngimP., thP. 8upreme Court declared: · Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American character and system of government. The gulf which separates this article from the s pirit which inspires all penal legislat ion of American 01igin is as wide as that which separates a monarchy from a democratic republic like that of the United States. This article was crowded out by implication as soon as the United States established its authority in the Philippine Islands . Penalties out of all proportion to the gravity of the offense, grounded in a distorted monarchial conception of the nature of political authority, as opposed to the American conception of the protection of the interests of the public, have been obliterated by the present system of government in the Islands. From an entirely different point of view, it must be noted that this a1'ticle punishes contempts against executive officials, although its terms are broad enough to cover the entire official class. Punishment for contempt of non-judicial officers has no place in a goYemment based upon American principles. Our official dass is not, as in monarchies, an agent of some au~.h01'ity greater than the people but it is an agent ?.11rl. ,;
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l!\"l'ER.NATlONAL LAV,

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mandate of the people any official hal,:,, v;hich calls for ,:1,-,.,::t.ir. punishment for contemptuous remarks.

The greater part of governmental machinery in every modern country is not affected by changes in the higher administrative officers. The sale of postage stamps, the registration of letters, the acceptance of money orders and telegrams (where post and telegraph are government services), the sale of railroad tickets (where railroads a re operated by the government), the registration of births, deaths, and marriages, even many rulings by the police and the collection of several types of taxes, go on, a nd must go on, without being affected by new elections, government cdsis, dissolutions of parliament, and even state strokes. A resident in Mexico who cleans the government bureaus or pays his school fee to the administration does not and cannot take into consideration the regularity or even legality of the present administration and the present congress; his busi ness is not one with personal rulers, not one with a specific a dministration, but one with the government itself in its unpersonal aspect. The difficulty of distinguishing between the government itself and the a dministration of the government a rises at the point where the voluntary dealings and relations between the individual and the government agencies assume a personal character in support of the particular agencies administering the government for the time being. To this class belong voluntary undertakings to provide a revolutionary administration with money or arms or munitions and the like. But the ordinary agencies, departmente, and bureaus of the government must continue to function notwithstanding its principal administrative offices may be in the hands of usurpers, and in such a case the sale and delivery to these necessary and legitimate agcnciEis of F-11pp.Ues, merchandise, and the like, to enab:e the government itself in its unpersonal aspect to function is a very different transaction from one having for its object the support of an individual or group of individuals seeking to maintain themselves in office. The character of each transaction mus t be judged and determined by the facts of the particular ~se.

Succession of Governments

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Rela ted to succession of states is succession of governments, where one government replaces another either peacefully or by violent methods. In both instances, the integrity of the state is not affected; the state continues as the same international person except only that its lawful representative · is changed. Questions of succession will, therefore, involve only the former and subsequent governments and third parties which may be affected by their relations. It is well settled that as far as the rights of the predecessor government are concerned, they are inherited in toto by the successor government. Regarding the obliga tions, distinction is made according to the manner of the establishment of the new government. The rule is that where the n ew government was organized by virtue of a constitutional reform duly ratified in a plebiscite, the obligations of the replaced government are also completely assumed by the former. Conversely, where the new government was established through violence, as by a revolution, it may lawfully reject the purely personal or political obligations of the predecessor government but not those contracted by it in the ordinary course of official business. To illustrate, the cost of arms purchased by the old government for use against the rebels cannot be charged against the new governm0nt. On the other hand, the successor government may be held to the paymen t of postal money orders purchased by an individual from the government it has replaced.6 U.S. (on behalf of George W.· Hopkins) v. Mexico, Opinion of Commissioners (1927), 42.

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RECOGNITION

Chapter 6

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RECOGNITION

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EVEN IF AN ENTITY has already acquired the elements of international personality, it is not for this reason alone automatically entitled ·to membership in the family of nations. Its admission thereto is dependent on the aclmowledgment of its status by those already within the fold and their willingness to enter into relations with it as a subject of international law. Obviously, it is accepted as such only in so far as the states making the acknowledgmeri t are concerne
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The above observations are reflective of the majority theory that recognition is merely declaratory and only affirms the pre-existing fact that the entity being recognized already possesses the status of an international person. As thus understood, recognition is highly political and discretionary. By contrast, the minority view holds that recognition is constitutive, meaning that it is the last indispensable element that converts or constitutes the entity being rect)gnized in to an inter.national person. Recognition in this light is regRrded a~ mandatory and legal and may be demanded as a matter of right by any entity that can establish its possession of the four essential ele1 ments of a state. : :· t. .:~

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Objects of Recognition Recognition may be extended to a state, to a government, or to a belligerent community. Recognition of a state is generally held to be i1Tevocable and imports the recognition of its government. Recognition of a goverrunent, on the other hand, may be withdrawn and does not necessarily signify the existence of a state as the government may be that of a mere colony.2 Recognition of belligerency does not produce the same effects as the rec:l)gniti.on of states and governments because the rebels are accorded international personality only in connection with the hostilities they are waging. 3

Kinds of Recognition Recognition may be P-ither express or implied. Express recognition may be verbal or in writing. It. may be extended through a formal proclamation or announcement, a stipulation in a treaty, a letter or telegram, or on the occasion of an official call or conference. For ex-

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his decisions on this matter are considered acts of state which are, therefore, not subject to judicial review. His authority in this respect is derived from his treaty-making power, his power to send and receive diplomatic representatives, his military power, and his right in general to act as the foreign policy spokesman of the D3.tion. Being essP.ntially discretionary, the exercise of these pov,ers mav not be compelled.

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Recognition may be extended by individual states or by a number of them together. In the Philippines, it is the President who determines the question of recognition and

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INTEm,Anor,,r4r. r.,Aw RECOGNITION

ample, the state of Israel and its provisional government were recognized by the United States in a statement released to the press by President Harry S. Truman on May 14, 1948. The Communist government of Russia, on the other hand, was recognized by Italy in a treaty concluded between the two countries in 1924. A simple telegram sufficed to extend American recognition to Poland after World War I.

As to the effect of common membership in an international organization of states that have not previously recognized each other, the view is that they are deemed to recognize each other only \vi.thin the said body and not elsewhere. Thus, the Philippines and the Soviet Union for many years dealt officially with each other in the United Nations, of which they are both charter members, but did not otherwise maintain relations outside the Organization until they exchanged diplom::lt,ir. rP.r.ognit.inn in 197fi

Recognition is implied when the recognizing state enters into official intercourse with the new member by exchanging diplomatic representatives with it, concluding with it a bipartite treaty dealing comprehensively with their relations in general or, as suggested by some writers, acknowledging its flag or otherwise entering into formal 4 relations with it. In the case of a belligerent community, recognition is implied when the legitimate government blockades a port held by the former or when other states observe neutrality in the conflict.'

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The recognition of a new state is the free act by which one or more states acknowledge the existence on a definite te1Titory of a human society politically organized, independent of any existing state, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.7a The recognition of a new state does not present much difficulty when it is established through peaceful methods, such as by plebiscite or agreement. For example, recognition was unhesitatingly extended to Nonvay and Sweden upon their formal separation in 1905, to Egypt in 1922 when it was declared independent by Great B1itain, and to the Philippines upon the withdrawal of American sovereignty therefrom in 1946. But in the case of the newly~ establii::.he.d United St~te.!3 of America, the remgnition extended to it by France in 1778 was resented by Great Britain, which shortly afterwards declared war against the French. The recognition by the United States of the new state of Brazil in 1822 fared better because Portugal, the parent state, had evidently lost interest in its fonner colony. ~

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In every case, it is important that "the act constituting recognition shall give a clear indication of an intention: (1) to treat with the new state as such, or (2) to accept the new government as having authozity to represent the state it purports to govern and to maintain diplomatfo relations with jt, or (3) to recognize in the case of insurg-p~ts that they RXe ent.itl1:>d tn ~~<:>rcisP. h<:>lligerent rights.'"' Short of such clear intention, dealings with the entity in question, as when a fact-finding mission is sent to its territory or consular officers are stationed or maintained in it by a foreign state, will not give rise to recognition. 1

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Recognition of Governments The recognition of t he new government of a state which h as been already recognized is the free act by which one or several states acknowledge that a person or a group of persons is capable of binding the state which they claim to represent and witness their intention to enter into rela7 tions with them. b Ac, in t he case of the recognition of states, the recognition of governments is usually decided mainly on the basis of political considerations. Premature recognition may lead t o international misunderstanding if the new government has been established through violent methods. Peaceful change of government does not pose any problem, of course. But it is different where the former government is replaced by force an d the new government thereafter claims the right to represent the state to the exclusion of the other . In a case like this, the dejure government might have cause for complaint if recognition is extended by other governments to the de facto government. The three kinds of de facto gover nments are the following: (1) That which is established by the inhabitants who rise in revolt against and depose the legitimate regime. Example: the Commonwealth established by Oliver Cromwel1 which supplanted the monarchy under Charles I of Engla nd. (2) That which is established in the course of war by the invading forr..ei:; of 0ne belligerent in the territory of the other belligerent, the government of which is also displaced. Example: the J apanese occupation government in the Philippines which replaced the Commonwealth government during World War II.

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(3) That which is established by the inhabitants of a state who secede therefrom without overthrowing its government. Example: the Confederate government during the American civil war which, however, did not seek to depose the Union government.~ Under t he Tobar or Wilson principle, which was expressed in a treaty of the Central American Republics in 1907 at the suggestion of Foreign Minister Tobar of Ecuador and reiterated in 1913 by President Woodrow Wilson of the United States, recognition shall not be extended to any government established by revolution, civil war, coup d'etat or other forms of internal violence until t he freely elected representatives of the people have organized a constitutional government. A similar inhibition was applied by the Stimson principle against governments established as a result of external aggression. F ormulated by U.S. Secretary of State S t imson, it was subsequently adopted by the League of Nati0n."l ir.. a resolution declaring that it was "incumbent upon the members of the League of Nations not to recognize any situation, treat y or agreement which may be brought about by means contrary to the Covenant of the Le ague of Nations or t o the Pact of P aris." Disclaiming the right of foreign states to rule upon the legitimacy of the government of another state, Minister Genaro E strada of Mexico announced in 1930 a doctrine that now bears his name. Under the Estrada doctrinP;, tbe Mexican government. declared th~t it would, as it. sa,v fit, continue or terminate its relations with any country in which a political upheaval had taken place "and in so doing it does not pronounce judgment, either precipitately or a. posteriori, regarding the right of for~ign nations

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INTERNATIONAL T..HI.'

86

to accept, maintain or repl?.t:':" t.hP.ir g<wP.rnments or authorities." In any event, the practice of most states now is to extend recognition to a new government only if it is shown that it has control of the administrative machinery of the state with popular acquiescence and that it is willing to 9 comply with its international obligations. The first criterion, which is described as the objective test, simply imports that the government must be able to maintain order within the state and to repel . external aggression. The second criterion is a subjective test and may be employed for the purpose of justifying the withholding of recognition from a government that is politically unacceptable. A government satisfying the aforementioned requirements is usually recognized as de jure. If it has not yet sufficiently demonstrated compliance with these conditions, it may for the time being be recognized as de facto until it is able to show that it is deserving of de jure recognition. Where there is no indication of the kind of recognition being extended, the presumption is that it is de ju.re. The distinctions between the two kinds recognition are the following: (1) Recognition de Jure is rel;:i.tively permanent; rP.<'ognition de facto is provisional. (2) Recognition de Jure vests title in the government to its properties abroad; recognition de facto does not. (3) Recognition de jure brings about full diplomatic relations; recognition de facto is limited to certain juridical 10 relations.

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Effects of Recog'nit.ion. of St;~.f:'="i;:: ~.n.d G•.,v~rnm-ents Following are the consequences of the recognition of states and gove1nments: (1) Full diplomatic relations are established except where the govemment recognized is de facto. 11

(2) The recognized state or government acquires the right to sue in the courts of the recognizing state. Thus, in the case of Russian Socialist Federated Soviet Republic v. Cibrario, 12 the plaintiff filed suit in an American court for fraud and breach of a contract it had entered into with the defendant. In dismissing the action> the Court held: We reach the conclusion that a foreign power brings an action in our courts not as a matter of right. Its power to do so is the creature of comity. Until such government is recognized by the United States, no such comity exists. The plaintiff concededly has not been so recognized. There is. therefore, no propet· party b~fore us. We may add that recognition, and, con~e.q•.tP.nt.Jy, th.~ ... ~(.i~ticn~P nf ('llmit,y, ii,_ r•.)f~ly for the determination of the legislative or executive department of the government. Who is the sovereign of a territory is a political question.

But mere breach of diplomatic relations does not have the effect of withdrawing the J ight to stu:3, ?.s held by the U.S. Supreme Court in Banc.o Nacional de Cuba u. San· batino. 12n Respondents, pointing to the sev~:rance of diplomatic relations, commercial embargo, and freezing of Cuban assets in this country, contend that relations between the United States and Cuba manifest such animosity that unfriendliness is clear,

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Fenton Textiles Association v. Krassin, Great Britain, Court of Appeals,. 1921, 38 Times Law Rep., 787-790. 12 New York Court of Appeals, 1923, 235 N.Y. 255. 12 •· ?7.f> U.S. 398.

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and that t he courts should be closed to t hf' ~ 11 ~11 Govern ment. We do not agree. This Court would hardly be competent to undertake such assessments of varying degrees of friendliness or its absence, and, lacking some definite touchstone for determina tion, we are constrained to consider a ny re la tionship, short of war, with a recognized sovereign power as embra cing the privilege of resorting to United States courts. Although the sever ance of diplomatic relations is an overt act with objective significance in the dealings of sovereign states, we are unwilling to say that it should inevitably result in the withdrawal of the privilege of bringing suit. Severance may take place for any number of political reasons, it.c:; dura tion is unpredictable, ancl whatever expression cf animosity it may imply does n0t "'f'· proach that implfoit ir "' rl Pdtn a tion of war.

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But it is error to suppose that non-suability of the foreign state or gover nment is a lso an effect of recognition, as this is a n a ttribute it can claim whether or not it has been recognized by the local state. The applicable rule is the doctrine of state immunity. It has been held that to cite "a foreign sovereign in the municipal courts of another state" would be "an insult which he is entitled to resent" and would certainly ''vex the peace of nations.''13 (3) The recognized state or government has a right to the possession of the proper ties of its pr edecessor in the territory of the recognizing state. 14 (4) All acts of the rec0gnized stat{'! or government 8.rP, validated ret.rn;:i.ctively, preventing the recognizing state from passing upon their legality in its own courts.

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OETJEN v. C:ENTRAL I,g A'T'HF.H r.o 2'1'3 U.~. W7 Facts: Certain hides in Mexico belonging to X were seized by the Ca rranza government, then engaged in civil war, and sold to an Ame rican firm which brought them to New Jersey. H ere an action for recovery was filed by X on the ground that the seizure was invalid. At the time of this seizure, the Carranza government controlled about twothird$ of Mexico but there was no government in that country recognized by the United States. However, the United States, on October 19, 1915, recognized the Carranza regime as a de facto government, and, on August 31, 1917, as the de Jure government of Mexico. Held: "When a government which originates in revolution or revolt is recognized by the political department of our government as the de Jure government of the coun try in wh ich it is established, such recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence. (Williams v. Bruffy, 96 U.S. 176, 178; Underhill v. Herna ndez, 168 U.S. 250, 253) "The principle tha t the conduct of one government cannot be successfully questioned in the courts of another is applicable to a case involving the title to property brought within the custody of the court, such as we have here, as it was held to be the cases cited, in which claims for damages were based upon acts done in a foreign country, for it rests a t last upon the highest considerations of international comity and expediency."

Recognition of Belligerency

; ; De Ha ber v. Qllee:Q of Portuga l, 17 Q.B., 171. " Oppenheim-Lal!terpacht, 138-139 . \3

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A belligerency exists when the inhabita~ts of a state rise up in arms for the purpose of overthro~~g_the legiti:

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frITERNt,.'I'I0i'!I'' · LAW

RECOGNITION

mate government. It is to be distinguished from a n insurgency in certain important respects. In the first place, insurgency is the initial stage of a belligerency, which is more serious and widespread. In the second place, insurgency is directed by military authorities whereas belligerency is under a civil government. Finally, insurgency is usually not recognized wh ereas th ere are settled rules regarding the recognition _of belligerency. Generally sp~aking, a belligerency is supposed to be a merely internal affair of the state and does not produce much internation al repercussion. The relations between the state and other states continue to be governed by the laws of peace and the relations between the forces of the legitimate government and those of the rebel community continue to be regulated by their municipal law. Accordingly, any damage caused by the rebels to a third state is imp1.1table to the legitimate government, and the rebels, when captured, will be prosecuted as ordinary criminals. Neither the legitimate nor the rebel government is allowed to exercise belligerent rights as against other states, which are entitled to consider them as belonging to one a nd the same state. But when the conflict widens and aggravates, it may be necessary, for practical reasons, to consider the formal recognition of the belligerent community. Such recognition is usually extended only where the following conditions are established: (1) There must be an organ ized civil gov-?rnHll?Tlt. r:li.recting th':' T€"bi>l fm·~f?-!C! (2) The rebels must occupy a substantial portion of the territory of the state. (3) The conflict between the legitimate governmenl and the rebels must be serious, making the outcome uncertain.

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Upon recognition by the parent state, the belligerent community is considered a separate state for purposes of the conflict it is waging against the legitimate government. Their relations with each other shall, thenceforth and for the duration of the hostilities, be governed by the laws of war, and their relations with other states shall be subj ect to the laws of neutrality. Thus, the troops of either belligerent, when capttiretl, shall be treated as prisoners of war, ar.i.d the parent state shall no longer be Hable for a ny damage that may be caused to third states by the rebel government. Both belligerents may exercise the right of visit and search upon neutral merchant vessels. The rebel government, equally with the legitimate government, shall be entitled to full war status as regards all other states and may establish blockades, maintain prize courts and take other allowable war measures. ·where recogniti.on is exten0.e d by third states, the above consequences are effective only as to them and do not bind other states not extending recognition. It is only where the recognition is made by the parent state that the effects thereof become general and are legally applicable to all other states.18

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' 'l'H€ RIGHT OF Ex!STENCE Al'H) SELP-DEFENSF.

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:RP'}1.tisites of Right

Chapter 7 'l'HE R.T{jff'I' OF EXISTENCE AND

In 1'.utide 51 of the Charter of the United Nations, it. is provided that-

SELF-DEFEN~R ONCE A STATE comes into being, it is invested with certain nghts described as fundamental. These are the right of existence and self-defense, the right of sovereignty and independence, the 1ight of equality, the right of property and jurisdiction, and the right of legation or diplomatic intercourse. · The most important of these rights is the right of existence and self defense. It is considered the most comprehensive of the attributes of the state because all its other rights are supposed to flow or be derived from it. By virtue of this right, the state may take such measures, jncluding the use of force, as may be necessary to resist any danger to its existence. Such action being the exercise of an inherent right, it does not depend for its validity on the previous recognition of the state asserting it or on the consent of other states. The right of self-defense has been expressly acknowledged in a number of important agreements, foremost among which is tJ,e Charter of the United Nations. The Draft Declara.ti.on of t.he R.ight.s ~nd Duties of States. which was prepared by the International Law Commission at the request of the General Assembly, also affirms that "every State has the right of individual or collective selfdefense."

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Nothing in the present Charter shall impair the inherent right of individual or collective selfdefense if any armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary for the maintenance of inter national peace and RP.r.urity ..Y. x .r. The presence of an "armed attack" to justify the exercise of the right of self-defense under this article suggests that forcible measures may be taken by a state only in the face of "a necessity of self-defense instant, overwhelming and leaving no choice of means and no moment for deliberation."1 Mere apprehended danger or any direct threat to the state does not, by itself alor:.e, warrant the employment by that state of any force against a suspected or potential enemy. The right may be resorted to only upon a clear showing of a grave and actual danger to the security of the state, and, furthennore, the self-defensiye measures must be "limited by the necessity and kept clearly within it.',2 This rather idealistic concept has, unfortunately, not received wide support if the practice of states i.s any indication. Although 0-rot.ius v:i.goro1.1sly inveigher:! against mere anticipation of aggression as a ground for selfdefense,3 it would appear that his view has been eroded by the more practical consideration that at times "the best defense is offense." In espousing the opposite thesis, U.S. Secretary of War Elihu Root declared (and thereby differed

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with a predecessor, U.S. Secretary Daniel Webster, who years before had argued in favor of the traditional view): It is well understood that the exercise of the right of selfprotection may and frequently does extend the limits of the territorial jurisdiction of the state exercising it. The strongest example would be the mobilization of an army by another power immediately across the frontiel'. Every act done by the other power may be within its te1Titory. Yet the country threatened by the state of facts is justified in protecting itself by immedia~e war.

The above remarks, which were made more than half a century ago, have derived added validity from the advances of modern science and the development of more sophisticated methods of warfare. Indeed, the intercontinental ballistic missiles have now made it possible for at least the so-called superpowers to inflict instant devastation without any previous overt indication of their intentions or even a physical invasion of the territory of the enemy. One might well argue now that the very state of armed preparedness of a nuclear power is per se a potent, if latent, threat to the security of any country with which it may have some differences. Such a country would, under this view, have a right to beat the other to the draw, as it were, and justify its act under the right of self-defense. History is replete with instances of the application of this more pragmatic concept of the right of self-defense. For example, the mobilization of Russia in 1914 brought about the immediate declaration of war against it by Germany, which asserted that its security had been imperiled. Sometimes, even innocent pawns have become the direct object of hostilities in the interest of actual or claimed necessity for self-defense, as when Great Britain seized the Danish fleet in 1807 to prevent it from falling into the hands of the French with whom the British were then at w a r. A similar fate befell Korea when it was invaded by

Japan in 1904 on the ground that Russia> its enemy then, also had its eye on the country and might use it as a base of operations against Japan. For its part, Russia in 1939 invaded the small state of Finland and sought to justify its act as a strategic measure to defend itself from an anticipated German invasion. Only recently, the United States attacked Iraq on the ground that it was storing biological and chemkal weapons of mass destruction that it was intending to use against the Ame1icans.

'l'he Cuban Missile Crisis The quarantine established by the United States in 1962, during the Cuban missile crisis, deserves special recollection. Declaring that "the peace of the world and the security of the United States (had been) endangered by reason of the establishment by the Sino-Soviet powers of an offensive military cap;::ibility in Cuba, induding hases fo1· ballistic missiles with a potential range covering most of N01th and South America," President John F. Kennedy interdicted the delivery of offensive weapons and associated materials to Cuba, subject to the following instructions: To enforce this order, the Secretary of Defense shall take appropriate measures to prevent the delivery of prohibited ma· terial to Cuba, employing the land, sea, and air forces of the United States in cooperation with any forces that may be made available by other American States. The Secretary of Defense may take such regulations and issue such di1·ectives as he deems necessary to ensure the effec· tivenes~ of this N'der, including the dei;ignation, within a rea':'01'?hl~ (\;i,t.anr.~ of Cuba, of prohibite-:l or re~tri~t'l.:.J zor1es ancl. of prescribed routes. Any vessel or craft which may be proceeding toward Cuba may be intercepted and may be dil'ected to identify itself, its cargo, equipment and stores and its po1ts of call, to stop, to lie to, submit to visit and search, or to proceed a~ directed. Any vessel or craft which fails or refuses to respond to: cir comply

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tion therein of the United States, which does not belong to the samP geographical area as th':) otho?r !.1•<:mh,:,r q ThirlP.r A~·t.irlP 5 of the North Atlantic Treaty-

with directions shall be subject to being taken into custody. Any vessel or craft which it is believed is en route to Cuba and may be can·ying prohibited material or may itself constitute such material shall, wherever possible, be directed to proceed to another destination of its own choice and shall be taken into custody if it fails or refuses to obey such directions. All vessels or craft taken into custody shall be sent into a port of the United States for appropriate disposition. In carrying out this order, force shall not be used except in case of failure or refusal to comply with directions, or with regulations or directives of the Secretary of Defense issued hereunder, after reasonable efforts haw~ been made to communicate t.hP.m t:o t.he vessel or ci·aft, <'r in case of self-defens~. fo any ca~f\ forr.f'! shall b~ nc:~('1. nnly t.o thP. P.xtent ne~ess::iry.

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The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against thE>m all; and consequer!tly they agree that, if t•uch an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with other parties, such action as it deems necessary, including the use of armed force, to restore and main t.ain the securitv of the North Atlantic area.

Fortunately, the USSR backed down and thus averted the outbreak of what would have been World War

The Balance of Power

III.

. One reason for the organization of regional arrangements is to provide for the balance of power, which Vattel described as "an arrangement of affairs so that no state shall be in a position to have absolute mastery and dominion over others.'"' The Congress of Vienna of 1815, the Crimean Wax of 1854, the Congress of Berlin of 1878, the Triple Alliance and the Triple Entente before World War I, and the groupings between the Allied and Axis Powers during World War II were all motivated by balance of power considerations and ba~ed on the fundamental right of self. defense. Until recently, most of the world was p0larizE>d between the democracies and the communists, each camp with the potential to destroy the other and the rest of mankind with it. The NATO countries were eyeball-toeyeball with the Warsaw Pact countries. The maintenance of this balance of power contributed in a very real way to

Regional Arrangements Collective self-defense is recognized not only in Article 51 of the Charter of the United Nations but also impliedly in Article VII on RegionAI ArrnngP.mf'mt.(;_ Tn Article 59., SP.(' 1, it lR pmvinP.d that

Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenanc.e of' international peace and security as are appropriate for regional action, provided that such arran.gemrnts or agenci~s and their activities are consistent with the Pumoses and Principles cf the r__rn;t"il. Nntinns. An example of such a regional agency is the Organization of American States, whose Organ of Consultation authorized or ratified the action taken by the United States in_the Cuban crisis. The NATO may also be cited although it is not strictly regional because of the participa:

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international peace although, being an "armed peace," it was far from the ideal sought in the articles of faith of the [ Jnited Nations.

Rrmn, 0.F' EXISTENC'E AND SEU' DEPENSE

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Cd) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

Aggression Defined Following is the Definition of Aggre.ssinn adopted by th':.' f}.N ~PnP:rnl Asi-Amhly on n~cember 14, 1974:

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression a gainst a third State;

Article 1 Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the r!hin t.Ar of the United Nations. as set out in this Definith:-n.

(g) The sending by or on behalf of a State of fl rmed force against anot:her St.gte of such gravity as to amount to thR ar.t.s listed al:Jove. 01 itR suh!';tantial ·;tn:nlve1,..,P.nt there.in.

Article 4 Article 2 The first use of armed forces by a State in contravention of the Charter shall constitute prima fade evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justifi'=d in the light of other relevant circumstances, inrludiug the fact that the acts -:oncem-=d ,:,,;- tlu,ir rm'"'"''l'HmrA~ ATP. not. of i:mfficient gravity.

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Article 5 1. No consideration of whatever nature, whether political, economic, military 0r other..·ise, may serve as a justification for aggression. 2, A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.

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Any of the following acts, regardless of a declaration of war shall, subject to and in accordance with the provisions of Article 2, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the tE\rritory of another State, or any military orcupation, however temporary, resulting f:.-"'"· i,ucb i.rwi:>si
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3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.

Article 6 Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful. Article 7 Nothing in this Definition, and in particular Article 3, could in any way prejudice . ... ·. the right of self-determination, ' ~t ..i- s~ ;;i: ·. ~

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freedom a nd independe nce, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accorda nce with the principles of the Charter and in conformity with the abovementioned Declaration. Article 8 In their interpretation and application the ahove provisions lire inte,:related and each pro\ision should be consb uP.
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THE RIGHT OF INDEPENDENCE SOVEREIGNTY is the supreme, uncontrollable power inherent in a state by which that state is governed. It is "the supreme power of the State to command a nd enforce obedience, the power to which, legally speaking, all interests are practically subject and all wills subordinate."1 In international law, it is this attribute that enables the state to make its own decision vis-a- vis other states and vests it with competence to enter into relations and agreements with them. Sovereignty has two aspects: internal and external. Internal sovereignty refers to the power of the state to direct its domestic affa irs, as when it establishes its government, enacts laws for observance within its territory, or adopts economic policies. External sovereignty, on the other hand, signifies the freedom of the state to control its own foreign affairs, as when it concludes treaties, makes war or peace, and maintains diplomatic and commercial relations. External soverP.ignty is more oft.en referred to .a~ indepP.ncl.ence. lnP~l. of b1dependence

The right to independence is a natural aspiration of peoples that. has, albeit onlv lately: rece ived international recognition. Particularly during the period followi ng the last World War, a resurgent spirit of nationalism and the principle of self-determination gave unprecedented impe· I

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tus to the attainment of freedom by a number of colonies and their s ubsequent admission to the international comm unity. It may be said that this trend had its auspicious beginning with t he establishment of the Republic of the Philippines in 1946 and its ready recognition by the family of nations. The movement toward independence is expressly supported by the Declarat ion Regarding Non-Self-Governing Territor ies in Chapter XI of the Charter of the United Nations. In Article 73, the members of the Organization administering territories whose peoples have not yet attained a full measure of self-government pledge "to develop self-government, to tak e due account of the political aspirations of these people, and to assist them in the progressive development of their free political institutions according to the particular circumstanc~s of each territory and its peoples and their varying stages of advancement."

in g:>oc faith in accordance with the maxim pacta sunt servanda. The principle of mare liberum will prevent it

102

Natnre of Independence Independence cannot be regarded as importing absolute freedom, for the sim ple reason, as Fenwick states, that it only means freedom from control by any other state or group of states and not freedom from the restrictions that are binding on all states forming the family of nations.2 Like the liberty of the individual who m ust s ubmit to Hmitations imposed for the welfare of the com1nunity, tbe independl:lnce of a state is of necP.ssity rn8tricted b:v the requirements of the international society. Thus, to cite a few examples, a state may not employ force or even the threat of force in its relations with other states because th.is is prohibited by Article 2 of t he Charter of the United Nations. It may nof:refuse to observe treaties 2

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from arrogating to itself the exclusive use of the open seas to the detriment of other states. Under the laws of neutrality, it must acquiesce in the exercise of certain belligerent rights even if this migh t impair its own interests or those of its n ationals. Even within its own domain, in fact, the state must submit to certain limitations on its independence, like the rules requiring the maintenance of an international standard of justice, the observance of fund amental human righ ts, and the restriction of its territorial jurisdiction.

Inten·ention In addition, the state must abstain from intervention. Even as it expects its independence to be respected by other states, so too must it be prepared to respect their own in dependence. In other words, the right of independence carries with it, by necessary implication, the correlative duty of non-intervention. Intervention may be defined as an act by which a state interferes with the domestic or foreign affairs of another state or states t hrough the em ployment of force or threat of force. Such force may be physical or, in the present state of world affairs, even political or economic. Lacking such pressure, the involvement of a state in the affairs of another, even if unsolicited, cannt'"\t l-:>e considered i.ntervent.ion. lnterYention is not s~nct-ioned. in international relations except only when it is exercised as an act of selfdefense or when it is decreed by the Security Council as a preventive or enforcement action for the maintenance:of . international peace and security. These are the only; ..twg -" • ... _ :!' .. "') ... instances, in fact, when the use of force is allowed under-~ j : .

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the Charter of the United Nations. Some writers would add a third justification for intenrention, and this is when such action is agreed upon in a treaty. Intervention may also be allowed when requested from sister states or from the United Nations by the parties to a dispute or by a state beset by rebellion. The United Nations itself categorically binds itself not ''to intervene in matters which are essentially within the domestic jurisdiction of any state," subject to the exceptions just noted. In the U.N. Declaration of the Rights and Duties of States, it is provided that "every State has the duty to refrain from intervention in the internal or external affairs of any other State." The Charter of the Organization of American States is more unequivocal with the statement that "no State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic or cultural elements." Furthermore, "no State may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another state and obtain from it advantages of any kind." Recent events have called for a re-examination of the law on intervention, especially where intervention is based on humanitarian grounds. One example is Somalia, where hundreds of thousands of civilians, including children and women, were cimght in the ~rossfirB of vvaning factions that confiscated and appropriated relief goods intended for the starving population. Revolted by the inhumane plight of the innocent victims, the United Nations sent a contingent of military .troops from several countries, primarily the Uni tee( State's; . . ._• that brought and distributed food and

other kinds of aid with orders to use force if the distribution of such goods was interfered with by the warlords or by lawless elements. Earlier, as previously noted, a similar military contingent was organized by the United Nations but not for humanitarian reasons. This was when Iraq invaded and occupied Kuwait in 1991 and the forces of the world organization, also led by the United States, turned back the aggressor and later required it to reduce its weaponry, including its nuclear capability, as a precaution against future aggression.

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IN ARTICLE 2 of the Charter of the United Nations, it is announced that "the Organization is based on the principle of the sovereign equality. of all its Members." This is a recdescribed as "an early premise of ognition of what has international law."1 The principle is more fully fleshed out in the provision of the Montevideo Convention of 1933 that "states are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simp]P. fad nf ib: H'll'ii:i.t.P.n~P A~ A person under international lavl'."

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Essence of Equality As understood in international law, equality among states does not signify parity in physical power, political influence or economic status OT prestige. This is impossible in the nature of things inasmuch as states, like individuals, are necessarily subject to different conditions or circumstances that may preclude their uniform treatment in their interrelations. Indeed, equality does not even require equality in the number of rights since it is possible for one state to be vested with more rights than another, e.g., a coastal state like China would have a right to a territorial sea as distinguisherl from a sta.ti? "0•npl1:>t':.'ly sun:ounded by land, like Bolivia or Afghanista n.

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What is meant by the principle of equality, strictly speaking, is that all the rights of a state, regardless of their number, must be observed and respected by the international conununity in the same manner that the rights of other states are observed and respected. In short, all states, big or small, the powerlul as well as the weak, have an equal right to the enjoyment of all their respective attributes as members of the family of nations. Accordingly, all members of the United Nations have each one vote in the General Assembly, all votes having equal weight, and are generally eligible for positions in the various organs of the United Nations. Every state has the right to the protection of its nationals, to make use of the open seas, or to acquire or dispose of territory. When involved in war, a small state like the Malagasy Republic would have the same right as China or the United States to punish the cani.age of contraband or to have its captured combatants treated as prisoners of war. Under the rule of par in parem non habet imperium, even the strongest state cannot assume jurisdiction over another state, no matter how weak, or question the v£i.lidity of its acts in so far as they are made to take effect witJ.in its own territory. All states, including the smallest and the least influential, are also entitled to their dignity and the protection of their honor and reputation.

Legal Equality v. Factual Inequality But ev17,n frnm the viP,wpoint of strictly legal rules, it is apparent that absolute equality among states is still a distant and well nigh impossible as piration. Under the Charter of the United Nations, for example, non-procedural questions are decided by the Security Council only with the concurrence of the Big Five, any of which may defeat a proposa} through the exercise of the veto. This is . ,. i '

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true also with respect to the ratification of any proposal to amend the Charter. Moreover, as previously emphasized, this same group of states is entitled to permanent membership in the organ, in contrast with all the other members, which are elected for a term of only two years and are not even eligible for irrunediate re-election. With regard to the elective membership of the Security Council, not all states have equal eligibility therefor, as it is provided in the 1965 amendments to the Charter that such members are to be distributed, and not equally at that, among several specified regions. Thus, five of them must be elected from the African and Asian states and only one can come from the East.ern European states. There is much to be said for the proposition that all states, regardless of their relative prestige and power in the international community, must be equal in the enjoyment of whatever rights they may be entitled to. But this rule of equality itself sometimes poses serious questions of inequality. This is so because it does not take into account the realities of international life, including the greater stakes of the more populous stat.es in the decision of questions involving the entire corrununity of nations. Such decisions may affect the interests, not of individual states as such, but of the whole of humanity itself without distinctions as to color, nationality or creed. In the General Assembly, for example, all members have one vote regardless of the number of people they separately represent, with the result that the decision of India, which has a p()pulation of almost one billion, would have the same force, legally speaking, as th~ vote cast by G~bon, the population of which is on1y about 1.1 million. The reason is that the right to vote, and to only one vote each, is granted to the member-states as such instead of being apportioned ~.IIfO}li( ~hat the Preamble to the Charter itself calls "the peoples bf the United Natfons."

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Chapter 10 TERRITORY TERRITORY has already been defined as the fixed portion of the surface of the earth inhabited by the people of the state. The territory must be permanent and indicated with precision because its limits generally define the jurisdiction of the state. As previously observed, the tenitory must be big enough to provide for the needs of the population but should not be so extensive as to be difficult to administer or defend from external aggression. The right to acquire territories is regarded as one of the fundamental attributes of the state. Under our Constitution, authority to exercise the same may be inferred from the war powers of the Congress and the treaty making power of the President. Needless to say, this right can be asserted only in accordance with the generally accepted principles of international law and always with due regard for the territor.iF.tl integrity of othflr sta tes.. The Philippine~ is committed to the renunciation of war for territorial aggrandizement but, like other states, is not precluded from acquiring additional territories through any of the methods permitted under the law of nations.

Acquisition and Loss of Territory Territory may bP. ar,quired by dfacovery and occupation, by prescription, by c8ssion, by guhj1.1g~tjon, and by accretion. It may be lost by abandonment or dereliction, by cession, by subjugation, by prescription, by erosion, by revolution, and by natural causes.

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The inchoate title of discovery performs the function of barring other states from entering the tenitory until the lapse of a reasonable period within w:hich the discovering state may establish a settlement thereon and commence to administer it. If the claimant state begins exel'cising sovereign rights over the territory, the inchoate title ripens and is perfected into a full title. Otherwise, the inchoate title will be extinguished and the territory will become res nullius again. In the Island of Palmas Case, 1 title was disputed between the United States and the Netherlands to an island situated within the boundaries of the Philippine Archipelago as ceded to the former by Spain under the Treaty of Paris of December 10, 1898. The United States based its claim primarily on the 1ight of discovery of the island by Spain, while the Netherlands asserted that it had possessed and exercised Rovereignty over the islands since 1677, or even earlier, b-v v,rtul':l of consenti,ms \\'1th the native princes. While conceding that "the original title derived from discovery belonged to Spain," the arbitrator nevertheless held inter alia:

Oiscovery and o,:,:mpt:tt.ion Discovery and occupation is an original mode of acquisition by which territory not belonging to any state, or terra nullius, is placed under the sovereignty of the discovering state. The territory need not be uninhabited provided it can be established that the natives are not sufficiently civilized and can be considered as possessing not rights of sovereignty but only rights of habitation. Thus, the discovery and ·occupation of the Philippine Islands in 1521 was justified on the ground°· that the inhabitants at the time did not have a degree of civilization regarded as sufficient by European standards. The same justification was made in the case of the colonization of Africa and the Americas. Like the open seas, outer space is res communes and not susceptible to discovery and occupation. According to the Treaty on the Exploration and Use of Outer Space, outer space, i:n.cl11ding the moon and otb'3r celestirtl hodies, is not i:tubjP.ct t.o :ni:it.ienal appropriat.ion by cl::iim of sovereignty, by means of use or occupation, or by any other means.

(a)

Requisites

There are two requisites of a valid discovery and occupation. The first is possession and the second is administration. Possession must be daimed on behalf of the state represented by the disroverer ::.nrl may be eff13ded through a formal proclamation and the symbolic act of raising the national flag in the territory. But mere possession will not suffice, as only an inchoate title of discovery is acquired by the claimant state pending compliance with the second requirement., which is the administration of the territory. ·.:::

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Discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the fa·land of Palmas (or Mie.ngas). ... Even admitting that the Spanish title still existed as inchoate in 1898 and must be considered as included in the cession under Article III of the Treaty of Paris, an inchoate title could not prevail over the continuous and peaceful display of authority by another state for such display may prevail even over a prior, definitive title put forward by another state.

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tions must concur, namely, the act of withdrawal and the ,ntention to abandon. Where, for example, the forces of the state are driven away from the territory by the natives, title is not thereby necessarily forfeited, as it may be that they intend to ret urn with the necessary reinforcements to suppress the resistance. Of course, a different conclusion must be reached if such an intention is not present and it is, on the contrary, p1ain that the sta te wishes to relinquish all claim to the territory. In this case, the territory itself becomes res nullius or terra nullius, becoming open once again to the territorial ambitions of other states.

2

In the Clipperton Island Case, however, title was deemed acquired by France over an island it had formally claimed but had never administered. The facts showed that a French Navy lieutenant, "cruising about one-half mile off Clipperton, drew up, on board the commercial vessel L'Admiral, an act by which, conformably to the orders given him by the Minister of Marine, he proclaimed and declared that the sovereignty of the Raid island beginning from that date belonged in perpetuity to His Majesty the Emperor, Napoleon III, and ,to his heirs and suci::essorn." Thereafter, the vessel put off "-"'rithout lea11ing in the island any sign of sovereignty." Finding that the island was terra 1111.l lius at tbl'll: time, the arbitrator held in part:

Prescription

It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual and not the nominal taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying state red uces to its possession the territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the state establishes in the territory itself an organization capable of making its law respected. .. . . If a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisp11ted p,.,,..<;J?.ssio:-1'. ,:,f that st~~.e. from that moment the taking rif possession is considered accomplished and the occup? tim, is for mally completed.

The suggestion in the Palmas Case is that, even on the assumption that Spain had validly discovered and occupied the territory in dispute, the Netherlands could nevertheless be regarded as having acquired the same by virtue of prescription since it had been exercising sovereign rights over the disputed island for more than two hundred years after its discovery by Spain, and the latter had not interposed any objection during all that time. As in municipal law, prescription in international law requires long, continued and adverse posse.c;.i;;ion t,n VP-c;t a~quisitive title in the claimant. Significantly, however, there is as yet no rule in international law fixing the period of possession necessary to transfer title to the territory from the fo1111er to the subsequent sovereign.

(b) Dereliction Ti:>1-ritory is lost by dP.reliction when the state exP,rcising· sovereignty over it physically withdra wP. from it with the intention of abandoning it altogether. Two condi-

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Generally speaking, cession is a method by which territory is transferred from one state to another by agreement between them. While if is true that there is such a

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concept as forced cession, acquisition of territory by cession is usually effected by such familiar transactions as sale, dona tion, barter or exchange, and even by testamentary disposition. Examples are the purchase by the United States of Alaska from Russia in 1867, the gift by Austria of Lorn bardy to France in 1859, and the exchange between Great Britain and Ger many.of the island of Helgoland and the territory adjoi~ing German East Africa in 1890. Cessinn being egsentially .consensual, transfer· of title is effected upon the meeting of the minds of the parties a nd does not have to bide the actual delivery of the ceded territory to the acquiring state.

of the country through the action of the water or, more effectively, by reclamation projects like those undertaken in Ma nila Bay and the polders of Holland. Accretion also covers the formation of islands, which, if occurring within the maritime belt of the state, correspondingly extends the breadth of its territorial sea. 3 In this connection, it should be noted tha t territory may also be lost as a result of the operation of nature, as when an island is submerged to the bottom of the sea because of a volcanic eruption. It is probably already possible at this time to achieve the same effect through a massive bombardment or some such man-made method of destruction.

Subjugation

Components of Territory

Territory is deemed acquired by subjugation when, having been previously conquered or occupied in the course of war by the enemy, it is formally annexed to it at the end of that war. Conquest alone confers only a n inchoa te right on the occupying state; it is the formal act of annexation that completes the acquisition. Hence, during the Japanese occupation of the Philippines, sovereignty over our country did not pass from the United States simply bec~.use of its inability to exercise it. By contrast, Ethiopia fell under 1ta1ian sovereignty when, .after its occupation by Italy during the war between them, it surrendered to and was formally annexed by the latter in 1935.

'I'he territory of the state consists usually of the terrestrial domain, the maritime and fluvial domain, and the aerial domain. Some states, 1ike the Philippines, also claim the continental shelf as part of their territory.

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(a) The Terrestrial Domain The teITestrial domain refers to the land mass, which may be integrate, as in the case of Iran, or dismembered, as in the case of the United Stl:l.tes, or partly bounded. by wa ter like Burma, or consist of one whole island like Iceland. It may also be composed of several isla nds, like the Philippines and Indonesia, which are known as mid-ocean archipelagoes, as distinguished from the coastal archipelagoes like Greece.

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The maritime and fluvial domain consists of the bodies of water within the land mass and the waters adjacent to the coasts of the state up to a specified limit. This includes the internal waters in the land-locked lakes, the rivers a nd man-made canals within th':) hnd mass, and in cert~n bays, gulfs and st:r:J:1it-.c:, RR well as the ex~r.Ti~l w::iters in th~. territor is:il sea. (1)

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Rivers may be classified into national, multi-national, international, and boundary. National rivers are those, like the P asig River, that are situated completely in the tenitory of one state as distinguished from the multinational rivers, like the Congo River in Africa and the Mekong River in Asia, that flow through the territories of several states. An international river, like the Rhine and the Danube, is one that is navigable from the open sea and is open to the use of vessels from all states. Of special interest is the boundary river, like the St. Lawrence River between Canada and the United States, that divides the territories of the riparian states. In the absence of a specific agreement between such states, the boundary line is laid on the river according to the thalweg doctrine, that is, on the center , not of the river itself, but of its main channel Where the bouT1dary river c~1anges its cowse by a gradual a nd no'f!tJ.al procesR, such as J:Jcr.retion or erosion, the dividing line follows the new course; but if the deviation is violent and abrupt, as by avulsion, the boundary line will continue to be laid on the old bed of the river, in the absence a contra ry agreement. As for ;the dividing line on a bridge across a boundary river, t~ef a'."e is laid

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(?,)

A bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land.Jocked waters and constitute more than a mere curvature of t he coast. An indentation shall not, however, be regarded as a bay unless its a rea is as large as or larger than that of a semi-circle whose diameter is a line drawn across the mouth of th at indentation.4 If the distance between the low-water marks of the natural entrance points of a bay does not exceed twentyfour miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered internal waters.~ The above rules do not apply to the so-called historic bays,6 whose waters have a lways been considered internal by the intermi.tio11.al community notwithstancljng that their opePing.$ are morn than tweuty-four mi1':'s in width. Examples of historic bays are the Bay of Cancale in France, the Bay of El Arab in Egypt, Chesapeake Bay in the United States, Hudson Bay in Canada and the Zuyder Zee in Holland.

(3) The Territorial Sea The territorial s-9a may bP. de~crihed as the belt of waters adjacent to the coasts of the sta te, excluding the in• Convention on the Territorial Sea and t he Contiguous Zone.

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ternal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction. Traditionally, the breadth of the territorial sea was reckoned at three nautical miles, or a marine league, from the low-water mark. This rule was based on the range of cannon at the time 1t was first proposed by the Dutch publicist Bynkershoek, on the theory that a state could claim only so much territory as it could defend. However, many states later extended their territorial seas, so that no uniform rule could be regarded as established in this regard. Countries with big navies understandably adhered to the traditional limit. Some states, like India and Greece, claimed six miles, and others, like Russia and Greenland, insisted on twelve miles. Chile and Peru claimed up to t\ivo hundred miles, while archipelagoes in general asserted that a different regime should be applied \\,jth respect to t.hem. Others, like Argentinll and Nica't'agua, claimed the seas above their continental shelves, to an unspecified lirrµt, as part of their maritime belt.

(4) The UN Conferences on the Law of the Sea Three international conferences have been called to formulate a new law of the sea. These conferences have dealt with such controversial matters as the breadth of the territorial sea, the use of straits for international navigation, the continental shelf, the concept of an exclusive economic zone, the freedom of the high seas, the status of archipelagoes and regime of islands, and others. The first conference was held in 1958 at Geneva, Sv.>itzerland, and resulted in the adoption of the Convention on tbe Territ:or:ial Sea and the Contiguous Zone, the Convent.ion ~n the High- Seas. a,\d the Conv€'ntion on Fishing and the Living Resources of the High Seas, and the Convention on the. C9ntinental Shelf. It failed, how-

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ever, to define the breadth of the territorial sea; and, moreover, the Conventions adopted therein were ratified by only forty states. The Philippines did not ratify because of the absence of provisions recognizing the archipelago doctrine it was advocating. The second conference, which was held in 1960, also at Geneva, likewise left unresolved the question of the breadth of the ten-itorial sea. The third conference, called in 1970 by the United Nations, resulted finally in the adoption of a new Convention on the Law of the Sea, which was signed in Jamaica in 1982 by 119 of the 150 conferee-states. This Convention became effective on November 16, 1994, after its ratification by more than the required 60 of the signatory states. The new Convention provides among others for a unifonn brP.adth of twelve miles for the territorial sea, a contiguous zone of twelve miles fr')m the outer limits of the territorial sea, and an economic zone or patnmonial sea extending two hundred miles from the low-water mark of the coastal state. (5)

The Philipoine Territorial Sea

The claim of the Philippines to its territorial sea was based on historic right or title or, as it is often called, the treaty limits theory. The Philippines invoked the sovereignty exercised by Spain more than three centuries over the Philippine archipelago, including the waters adjacent to the islands beyond the traditional three-mile limit. These waters were embraced within the latitudes and longitudes specified in the Treaty of Paris of December 10, 1898, by virtue of which Spain ceded the entire archipelago to the ·united ·' ~tates. Tpe United States, as transferee, asse~ ~over~ 'e ignty over auch waters as Philippi~e ten·~~ri~l 'st!:fSi ~ ' sp ' i ':>. :..;_ ~1 t• i· t:t' •.: .. ~

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too did the Republic of the Philippines when it -acquired title to the whole archipelago on July 4, 1946. Our position was that international law should recognize historic title to territorial waters as it recognizes the so-called historic bays. Accordingly, the territorial sea of the Philippines should embrace all the non-internal waters comprised within the limits set forth in the Treaty of Paris, and other applicable laws, over which the Philippines and its predecessors in interest have been exercising sovereign rights for several hundred years without objection from other states. However, the new Convention on the Law of the Sea now limits our tenitorial sea to twelve miles from the lowwater mark of our coasts, as in the case of other states.

territorial sea. Otherwise, the waters outside each of these territorial seas wi11 be regarded as high seas and thus be open to all foreign vessels to the prejudice of our economy and the national security. An archipelago is a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely mterrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entiL-y, or which historically have been regarded as such. Hence, in defining the internal waters of the archipelago, straight baselines should be drawn to conned appropriate points of the outermost islands without departjng radically from the general direction of the coast so that the entire archipelago shall be encompassed as one whole territory. The waters inside these baselines shall be considered internal and thus not subject to entry by forejgn vessels without the consent of the local state. This theory was advocated by the Philippines, Indonesia, the Mauritius, r1ji, and the Bahamas, all archipelagic states, and gained the support of the Organization for Afric~n Unity, a number of Latin American states, Greece, Malta, Thailand, and the People's Republic of China. The archipelago doctrine has been embodied in the 1982 Convention on the Law of the Sea, with the modification that archipelagic sealanes shall be designated over the internal waters throngh whic.h fornign vessels shall have the right of passage.

(6)

The Archipelago Doctrine

The Philippine position on the definition of its inter~ nal waters is commonly known as the archipelago doctrine. •rrus is articulated in the second sentence of Artic.lP. I, Sec. 1 of the 1987 C0t1Etituti011, which follows: The national territory comprises the Philippine archipelago with all the islands and waters embraced therein, and all the other territories over which the Philippines has sovereignty or jurisdiction, consisting of its ten·estrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of' thr, internal water$ of the Philippines.

As t.hu~ dP,fjn,P.d, our 11ational territory comprehends as many as 7,100 islands of varying sizes connected by waters of diverse dimensions. Our position is that all these islands should be considered one integrated whole instead of being fragmented into separate units each with its own '

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(7) Basis of Article I of the 1987 Constitution Article I of the 1987 Constitution was based .o n RA No. 3046, as amended by RA. No. 5446, which declares as follows:

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I All the waters within the limits set forth in the Trealy of Paris of December 10, 1898, between Spajn and the United States, the Treaty of Washington of November 7, 1900, also between the two countries, and the Treaty concluded by the United States and Great Britain on January 2, 1930, have always been regarded as part of the territory of the Philippines. 2. All the waters around, between, and connecting the various islands of the Philippine archipelago, irrespective of their width or dimensibn, have always been cons idered as necessary appurtenances of the land territory, forming part of the inland or internal waters the ,Philippines. 3. All the waters beyond the outermost islands of the archipelago but within the limits of the boundaries set forth in the aforementioned treaties comprise the territorial sea of the Philippines. 4. The baselines from which the territorial sea of the Philippines is determined consist of straight lines joining appropriate points of the outermost islands of the archipelago. The definition of the baselines of the territorial sea of the Philippine archipelago is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.

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is deeply indented or if there is a fringe of islands along the coast in the immediate vicinity.1 In either case, account may be taken, in determining particular baselines of economic interests peculiar to the region concerned, the' reality and importance of which are evidenced by Jong 8 usage. Waters on the landward side of the baselines of the territorial sea form part of the internal waters of the state.9

In the famous Fisheries Case, 10 the United Kingdom questioned the use by Norway of the straight baseline method in defining its territorial waters. The International Court of J ustice held that it was "led to conclude that the method of straight baselines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been consolidated by a constant and sufficiently long practice in the face of which the attitu.d~ of governrneut~ b8ars witness to the fact that thP.y did not consider it to be contrary to infa:~rn::it.irmj:11 law.~

{~) The Aerial Domain

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The territorial sea may be defined, regardless of its breadth, according either to the normal baseline method or to the straight baseline method. Under the normal baseline method, the territorial sea is simply drawn frow the low-watP.r mark of the coast, to t.he hreadth claimed, following its sinuosities and curva. · tures but excluding the internal waters in bays and gulfs. Under the straight baseline method, straight lines are made to connect appropriate points on the coast without departing radically from its general direction. This method may be employed in localities where the coastline

The aerial domain is the airspace above the terrestial domain and the maritime and flu.vial domain of the state, to an unlimited altitude but not including outer space. Both the Paris Convention on Aerial Navigation, which was signed on October 13, 1919, and the Chicago Convention on International Civil Aviation , concluded on December 7, 1944, began with the express recognition that every state "has complete and exclusive sovereignty over the airspace above its territory." Where the upwru:d limits of 1

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the aerial domain ends i~ a nother f::nggP-sted by the fnllowing rem'°'rkR:

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JURISDICTION

Under the tenns of existing international conventions and customary international Jaw, States have complete and exclusive sovereignty in the airspace above their territories and territorial waters. The concurrent existence of a region in space which is not subject to t he same regime raises such q1J~st.ions as where airspac:e ends and where outer space begiM Tt. was

JURISDICTION is the authority exercised by a state over persons and things within or sometimes outside its tenitory, subject to certain exceptions. Generally speaking, it may be classified a.s either personal or territorial. More spP.Ci.fically, jurisdiction may be exercised by a state over: (a) its nationa ls; (b) the terrestr ial domain; (c) thP roari-

noted tb<>~. t.h P.se limits de :nnt. nP.cessarily coineiAP "

time and fluvial domain; (d) the continental shelf; (e) the open sea s; (f) the aerial domain; (g) outer space; and (h) other territorie.s.

Personal Jurisdiction Personal jurisdiction is the power exercised by a state over its nationals. It is based on the theory that a national is entitled to the prntection of his state wherever he may be and is, therefore, bound t.o it by a duty of obedience and allegiance. This duty follows him even when he is outside the territory of his state and he may not ordinarily be excused from it unless he is prepared to renounca his own nationality. At that, some states do not even allow this under the doctrine of indelible allegiance. The fact that persom!.l jurisdiction is not easy to enforce does not, of course. detract from the lBgfl.l po·wer posBess~d hy the state over it:: nationals abroad. An example of the assertion of its personal jurisdiction by the Republic of the Philippines is found in Article 15 the Civil Code, which provides that '1aws relating to. family rights and duties, or to the status, condition and.

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legal capacity of persons, are binding upon citizens of the Philippines, even though living abroad." Another is Article 16, under which "intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found." Jurisdiction to tax our citizens, even if not residing in the Philippines, is also provided for in our Revised Internal Revenue Code for income received by them "from all sources.''1 In Joyce v. Director of Public Prosecution, 2 the defendant, better known as "Lord Haw Haw," challenged his conviction in Great Britain for high treason, contending that be was not a British subject. It appeared that he had lived in the country for eighteen years and had misrepresented himself as its national for the purpose of obtaining a British passport that enabled him to go to Germany, for which he subsequently broadcast anti-Allied propaganda. The House of Lords, in aflirming the decision, held that although he was admittedly not a British subject, he had nevertheless "by his own act . . . maintained the bond which while he was within the realm bound him to his Sovf\reign." Indeed. e,,en ",ithout such special circumstances as were established in that case, an alien may be held subject to the laws of a state whose national interest he has violated, a nd notwithstanding that the offense was committed out.side its territory. Article 2 of our Revised Penal Code, for instance, punishes any person who, whether in 1 2

127

or outside our territory, should forge or counterfeit Philippine currency, utter such spurious securities or commit any crime against our nation al security or the law of na-

tions.

Teriitorial Jurisdiction The general rule is that a state has jurisdiction over all persons and property within jts territory. As held in The Schooner Exchange v. McFaddon, 3 "The jurisdiction of the nation within its own territory is necessary, exclusive and absolute. It is susceptible of no limitation not imposed by itself." This rather sweeping statement is, however, as previously suggested, subject to certain important exceptions to be discussed shortly. Personal jurisdiction antedated territorial jurisdiction but the latter is more effective because it is asserted by the state over persons and property within its immediate control ~nd subject to its coercive processes. Nevertheless, the state cannot e.xercise jurisdiction even within its own territory over: (1) Foreign states, heads of states, diplomatic representatives, and consuls to a certain degree. Foreign states and their heads are exempt because of the sovereign equality of states and on the theory thl:lt a contrary rule would dfaturb the peace of na tions. Diplomats and consuls enjoy the exempt1on in order that they may have full freedom in the discharge of their official functions. (2) Foreign state property, including embassies, consulates, and public vessels engaged in non-commercial activities.

Sec. 21. House of Lords, Dec. 18, 1945; Am: J ourual,VJ>l, 40 (1946), 663. ;;,

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hrrERNA''''"NAr. L AW

By fiction of law, public vessels are regarded >I!'\ P.xtensions of the territory of the foreign state. The inviolability of embassies and consulates is discussed in Chapters 12 and 13. (3) Acts of state. As explained in Underhill v. Hernandez, 4 "Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one countrJ will not sit in judgment on the acts of the government of another, done within its own territory. Redress of grievances by reason of such act must be obtained through the means open to be availed of by sovereign powers as between themselves." (4) Foreign merchant vessels exer cising the rights of innocent passage or arrival under stress. Innocent passage means navigation through the territorial sea of a state for the pur pose of traversing that sea without entering internal waters, or of proceeding to internal waters, or making for the high seas from internal to the peace, good waters, as long as it is not • prejudicial 5 order or security of the coastal state. Arrival under stress or jnvoluntary entrance may be due to lack of provisions, nnseaworthiness of the vessel, inclement weather, or other cases of force majeure, like pursuit by pirates. (5) For eign armies passing through or stationed in its territories with its permission. It bas been held that ". .. without any express declaration waiving jurisdiction over the army to which th is right of passage has been granted, the soYereign who would attempt to exercise it would certainly be considered as violatin g his faith. By exercising it, the purpose for ' 168 U.S. 250. 5 Convention on the.Territorial Seas, Art. 14, Secs. 2, 4.

which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of his force.'.e (6) Such other persons or property, including or. ganizations like the United Nations, over which it may, by agreement, waive jurisdiction. Examples of such agreements are the Convention on the Privileges and Immunities of the United Nations, the Convention on the Privileges and Immunities of Specialized Agencies, and the RP-US Bases Treaty, which modified the customary exemptions under (5), above.

Land Jurisdiction Save in the foregoing cases, everything found within the terrestrial dom ain of the state is under its jurisdiction. Nationals and aliens, including non-residents, are bound by its laws, an d no process from a foreign government can take effect for or against them within the territory of the local state with out its permission. Also, as against all other states, the local state has exclusive title to all property within its territory,7 which it may own in its own corporat.e capacity or regulate when under private ownership through its police power or forcibly acq•1ire through the power of eminent domain ~ nr.h property is also subj<:>r.1-. t o its t rudng p n w Ar.

6

The Schooner Excha nge v. McFaddon, supra. 'Wilson and Tucker, 111.

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ImERNA'l'IONAL

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131

Ml=l.ritime and Fluvial Jurisdiction

under the jurisdiction of the state whose flag the vessel

Also as a general principle, the internal waters of a state are assimilated to the la nd mass and subjected to the same degree of jurisdiction exercised over the terrestrial domain. Covered by this rule are the so-called enclosed waters, such as the land-locked lakes, national rivers a nd man-made canals. Civil, criminal . and administrative jurisdiction is exercised by the flag state over its public vessels w herever they may be, provided they are not engaged in commerce. 1 As observed in The Schooner Exchange v. McFaddon, • "National ships of war entering the port of a friendly power open for their reception are to be considered as exempted by the consent of that power from its jurisdiction." Regarding foreign merchant vessels docked in a local port or bay, jurisdiction is exercised over them by the coastal state in civil matters, but criminal jurisdiction is determined according to either the English rule or the French rule. U nder the former, the coastal state shall have jurisdiction over all offenses committed on board such vessels, except only where they do not compromise the peace of the port.,,a Under the latter, the flag state shall have jurisdiction over all offenses committed on board s uch vessels, except only vvhere they compromise the 9 peace of the port. It is evident that tbe~ is no i::uhstantial distinction between the two rules inasmuch as, under either, offenses committed on board the foreign merchant vessel shall be triable by the territorial sovereign when they constitute a disturban ce of its peace and all .o ther offenses shall be

The real problem is in t he deten11ination of the nature or effects of the offe nse by the coastal stat.e for the purpose of ascertaining whether or not it shall assume jurisdiction. In the Antoni Case, 10 for example, the Supreme Court of Mexico h eld that the murder of a Frenchman by another Frenchman on board a French merchant vessel in a Mexican port did not distu rb the peace of the port. In the Windenhus Case,11 however, the United Stat.es decided that the murder of a Belgian by another Belgian on board a Belgian merchant steamer in the port of New J ersey was of such a nature as "to disturb tranquillity and public order on shore or in the port." In any event, assuming that there is a difference between the two rules, our own Supreme Court has held that the English rule is applicable in this country. Thus, although mere possession of opium aboard a foreign merchant vessel in transit through our waters is not considered a breach of our public order, 12 smoking of the drug on board such vessel will produce pernicious effects within our territory and is, therefore, triable by our courts. 13 Tne jurisdiction of the stat.e over its interior waters is more exclusive than that which it exercises over its territorial waters, as will appear later. Nevertheless, subject only to a few exceptions, it is the right of the coastal state to enforce all its laws to the full extent in its t.erritorial waters ·and in proper cases to bar both public and merchar1t foreign vessels from entering the same. It may even use force, if necessary, to prevent any encroachment on its territorial integrity. ln the famous U.S.S. Pueblo incident,

flies.

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10

"'Supra. 8 Windenhus Ca§e~ infra. ~ Cases of the Sally and the Newion. Fenwick, 314. ~ i ! .

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J !JRISDIC'I'l01'1

for instance, a n America n vessel was seized and its crew interned by North Korea for alleged infringement of its territorial waters. As previously noted, the 1982 Convention on the Law of the Sea, has fixed a uniform breadth for the territorial sea at twelve m iles from the low-water mark of the coast. U nder the archipelago doctrine espoused by the Philippines, ''the waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines." As internal waters, they are subject to the exclusive jurisdiction of the Philippines. However, although this claim has been substantially accepted in the 1982 Convention on the Law of the Sea, it is provided therein that archipelagic sealanes are to be laid on these waters over which foreign ships will h ave the right of pas~ sage as if they were open seas. Thus, a foreign vP.ssel need not go around our internal wa ters but may use these archipelagic sealanes in negotiating the dist1:1.nP.P. from one point. of the open s~a to another.

above regulations within its territory or territorial sea."14 The contiguous zone may not, however, extend more than twelve miles from the coast of the state. 15 Under the 1982 Convention on the Law of the Sea, the contiguous zone also extends twelve miles, but from the outer limits of the territorial sea.

182

TitP. Conti(!'Uous 7,onP. It is noteworthy that, besides extending tbe limits of their territorial sea beyond the traditional three m iles from the low-water mark, some states have claimed a "protective jurisdiction" over what is called the contiguous zone. This practic~ has been confirmed by the Convention on the Territorial SP.::i and the Contiguous Zone, where it is provided that "in a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the con; ~ trol necessary to: (a) prevent infringement of its customs, ,2 1~ ~cal, immigration or sanitary r egulations within its terri-f~.:·ui..tAJu·r or territorial sea, and (b) punish infringemenit of the

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The ContiP.':'tt,tal Shelf The continental shelf refers to: (a) the seabed and subsoil of thz submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of two hundred meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; and (b) to the seabed and subsoil of similar areas adjacent to the coasts of islands.16 The coastal state has the sovereign right to explore the continental shelf and to exploit its natural resources17 a nd for this purpose it may erect on it such installations and equipment as may be necessary. 1~ But this right shall not affect the legal nature of the superjacent waters as open seas or of the airspace above such waters and their use as such by other states shall not be impaired or dis19 turbed. The coastal state is allowed to establish on the open seas immediately above the installations a safety zone with a radius of fivP, hundred meters ovP.r which it may exercise jurisdiction for the protection of its prnpPrties underneath.?,0 14

Art. 24.

15

Ibid. Convention on the Continento.l Shelf, Art. 1. 11 Ibid., Art. 2. 18 Ibid., Art. 5, Sec. 2, 19 Ibid., Art. 3. 20 Ibid., Art. 5, Secs: ~,,;3! I. •• ., ~· l l 1· ! ~ 16

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TNTER!{ATIONAL L AW

IT (: R!S['[(:TW!•l

The above rights are exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities or make a claim to the continental shelf without 21 the consent of the coastal state.

juris diction when. they are within its territory, when j"urisdiction is waived or cannot be exercised by the territorial sovereign, or wh~n ~·.1 i:h u<:>:::~i:l~ i:n P, m, H1P. npP.11 ~P.i::i~

The Patrimonial Sea

•

The exclusive economic zone or the p atrimonial sea, extends two hundred nautical miles from the coast or the baselines. All living and non-living resources found therein belong exclusively to the coas tal sta te. The concept of the patrimonial sea was adopted in the Declaration of Santo Domingo, by the Caribbean states, in 1972, the General Repo1t of the African States Regional Seminar on the Law of the Sea, h eld in Yaounde in 1972, and the Addis Ababa Declaration of 1973, adopted by the Council of Ministers of the Organiza tion of African Unity, and has also been formally proposed by Kenya. 'I'he patrimonial sea is now prouidea for in the re CP.11tly ratified 19~?. r.nnwmtion on the Law of the S€a.

The Open S-eas The open seas or the high seas are res communes and available to the use of all states for purposes of navigation, flying over them, laying submarine cables or fishing. In times of war, hostilities may be waged on the open seas. A state may exercise jurisdiction on the open seas in the folkn.ving in~t.~n.r.es: (1) Over its vessels. The flag state has jurisdiction over its public vessels at all times, whether they be in its own territo1y~.in the territory of other states or on the open seas. Mercn~ht vessels, on the other hand, are under its 21

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135

THE LOTUS CASE P.I.C.J. Ser. A:, No. 10, 1927, Hudson, World Ct. Rep. 20 Facts: The Lotus, a French steamer, and the Bozkourt, a Turkish vessel, collided on the Aegean Sea, outside territorial waters, resulting in the sinking of the latter ship and the death of several Turkish nationals. The Lotus docked at Constantinopole, where its officer of the watch at the time of the accident, a French national, was subsequently convicted of manslaughter by the Turkish courts. France protested on the ground, among others, that the matter was outside the jurisdiction of Turkey inasmuch as the collision had taken place on the open seas. Held: ''The offense for which Lieutenant Demons appears to have been prosecuted was an act of negligence or imprudence-having its origin on board the Lotus whilst its effects made themselves felt on board the Bozkourt. These elements are legally entirely inseparable so much so that their separation renders the offense nonexistent. Neither the exclusive jurisdiction of each to the occurrences which to0k place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two Stat.es. It is only natur al ~httt each should be able to Pxei:-cise jurisdiction and to do so in respect of the incident as a whole. It is, therefore, a case of concurrent jurisdiction." It should be noted, however, that Article 11 of the Convention on the High Seas, signed at Geneva in 1958, provides as follows:

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In the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary pro· ceeding may be instituted against such persons except before the j•Jdi.cilil <>r administrative authorities either of the flag i:th,1t.P. m of the state of..-,hich such peTSon is a national.

(2) Over pirates. Pirates are enemies of all mankind and may be captured on' the open seas by the vessels of any state, to whose territory they may be brought for trial and punishment. Where a pirate vessel attempts to escape into the territorial waters of another state, the· pursuing vessel may continue the chase but is under the obligation of turning over the pirates, when captured, to the authori22 ties of the coastal state. Piracy is committed for private ends, not political motives. Insurgents may, therefore, not be treated as pirates. (3) In the exercise of the right of visit and search. Under the laws of neutrality, the public vessels or aircraft of a belligerent state may visit and search any neutral merchant vessel on the open seas and capture it if it is found or suspected to be engaged or to have engaged in activities favorable to the other belligerent.is (4) Under the doctrine of hot pursuit. If an offense is committed by a foreign merchant vessel within the territorial waters of the coastal state, its own vessels may pursue the offending vessel into the open sea and upon capture bring it back to its territory for punishment. To be lawful, the pursuit must be begun before the offending vessel has left the .territorial water!';, or the contiguous zone of the coastal state with respect to violation of rights enforcible thereon. Moreover, the pursuit must be continu-

,J !'RISDlCTICN

137

ous or unabate
Judsdiction

Since the invention of aircraft is a comparatively recent development, there are no traditional rules in international law regarding the rights of the subjacent state to its aerial domain. Conventional rules are also inconclusive as they are based mostly only on a network of bilateral agreements that do not have universal application. Nonetheless, the consensus appears to be that the local state has jurisdiction over the airspace above it to an unlimited height, or at the most up to where outer space begins. Accordingly, and as a corollary to this rule, no foreign aircraft, civil or military, may pass through the aerial domain uf e state without its consent The shooting down during the Eisenhower administration of an American plane alleged to be flying at the time over Russian airspace was sought to be justified under this principle. As a result of the various agreements among states regarding the use of their aerial domains, the following so-called "five air freedoms" have been the subject of varying degrees of recognition: (1) The freedom to fly ::i.cross foreign territorv with out landing.

(2) The freedom to land for non-traffir. purposes. (3) The freedom to put down traflic origjn~ting in the state of the aircraft. (4) The freedom to embark traffic destined for the state of the aircraft. (5) . The freedom to embark traffic destined for or to put dovm traffic originating in a third state.

•

22

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Laurel, 85. See Hague Conventio~

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f U!·; P~claration of London of 1909.

2 •

Oppenhei.m-Lauterpacht, 554.

I INTERNATIONAL LAW

,J URISOJCTION

Under the Convention on Offenses and Certain Other Acts Committed on Board Aircraft, concluded on September 14, 1963, it is the state of registration of the aircraft that has jurisdiction over offenses and acts committed on board while it is in flight or over the high seas or any other area outside the territory of any state. No other state may exercise jurisdiction over such aircraft except when:

damage that may be caused by such n~jP.l".1-. to anct11P.r state or to any person.2.;

138

(1) The offense has effect on the territory of such state; (2) The offense has been committed by or against a national or permanent resident of such state; (3) The offense is against the security of such sta ta; (4) The offense consists of a breach of any rules or regulations relating to the flight or maneuver of aircraft in force in such state; (5) The exercise of jurisdiction is necessary to Msure the ob~ervance of ar>.y obl:igation ,;,f ':'.'".'h ,;:t<> ~<> 11nrl"1r
Outer Snace Like the open seas, outer space, or the region beyond the earth's atmosphere, is not subject to the jurisdiction of any state. Outer space, including the moon and other celestial bodies, shall be free for exploration and ·use by all states without discrimination of any kind, on a basis of equality and in accordance with international law. It is also not ~ubject to national appropriation by claim cf sovereignty. bv m el'l!.ls of uRe or OCC'l1 pation or by a ny other me::in.s.

Astronauts shall be regarded as envoys of mankind. But a state launching an object into outer space shall retain.jurisdiction and control over such object, and over any. personnel thereof, while in outer space or on a celestial body. The state shall also be internationally liable for any-

139

Other TerritoriP.!,: A state may, by vi.due of customary or conventional international law, extend its jurisdiction beyond its territory and over territory not falling under its sovereignty. This may be effected in the following ways: (1) Through assertion of its personal jurisdiction over its nationals abroad or the exercise of its right to punish certain offenses committed outside its territory against its national interests even if the offenders are nonresident aliens. (2) On the strength of its r elations with other states or territories, as when it establishes a colonial protectorate, or a condominium, or administers a trust territory, or occupies enemy territory in time of war. (3) As a consequence of the waiver of jurisdiction by the local state over persons and things within its territory, illustrated by the foreign army stationed therein which remains under the jurisdiction of the sending state or by the exceptions to the English and French rules on criminal jurisdiction over foreign merchant vessels. (4) Through acquisition of extraterritorial rights. In this connection, exterritoriality must be distinguished from extraterritoriality in that the former refers to the exemption of persons and property from the local jurisdiction on the basis of international custom whereas the latter applies only to persons and is based on treaty or convention. Extraterritoriality has become discredited because of the rise of nationalism and the sovereign equality of states. But exterritoriality, as illus~r~ted by the immunities of the

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head of state in a foreign count.1·y, remains a rn~pPi::ted principle of international law. (5) Through the enjoyment of easements or servitudes, such as the easement of innocent passage or the easement or arrival under stress. In the Portuguese Enclaves Case,20 for example, the International Court of Justice held that Portugal had a right of passage through Indian territory in order to reach its own territory. This right was limited "to"the extent necessary for the exercise of Portuguese soverei~ty over the Enclaves and subject to the regulation and control of fo.dia, in resped. of private pP.T i::nns, ci,·il offici ~ l ~ i:i rn:l goods in gen em1 "

I

Chapter 12 THE RIGHT OF T,F.GATION THE EXERCISE OF THE RIGHT OF LEGATION is one of the most effective ways of facilitating and promoting intercourse among st at es. Through the active right of sending diplomatic representatives and the passive right of receiving them, states are able to deal more directly and closely with each ot her in the improvement of their mutual interests. Being pure1y consensual, the maintenance of diplomatic relations is not a demandable right on the part of either the sending or the receiving state HoweVfir, recognizing the many benefits avail.8.ble from contact ·with the family of nations, practically all states have availed themselves of and are now exercising the right oflegation.

Agents of Diplomatic Intercom·se Diplomatic relations are normally conducted through the h ead of state, the fc.reign secretary or minister and the members of the diplomatic service. Sometimes the head of state may also appoint special diplomatic agents charged with specific ceremonial or political duties. Envoys ceremonial are usually sent to attend state functions like a coronation or a jubilee while envoys political may be commissioned t o negotiate with a particular state or to participate in an international conference or congress. In the latte1· case, there is no need to accredit them to the state. where the sessions ar.e being held 1 nor 1.s it necessary that there be regular diplomatic relations between that state and their own . .,. I

26

I'*

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International Court of Justice.

-:;

Oppenheim-Laut.erpacht, 775-776.

141

Ii

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!NTBRNAT!ONAL f ,AW

] 4-?.

The Head of State 'l'he head of state, be he monarch or president, is regarded as the embodiment of or at least represents the sovereignty of his state. Accordingly, he is entitled to certain immunities and honors befitting his status. His person being regarded as sacrosanct, he has a right to special protection not only for his physical safety but for the preservation of his honor or reputation as well. His quarters, archives, property, and means of transportation are inviolate under the principle of exterritoriality. He is also exempt from criminal jurisdiction and likewise from civil jurisdiction, except where he himself is the plaintiff, and is not subject to tax or to exchange or currency restrictions. Ceremonial amenities are also due him unless he is traveling incognito. 2 In the case of Mighell v. Sultan of Johore ,3 suit was brought for breach of a promise to marry allegedly made by the defend ant who had represented himself as a pri· vate individual. The action was dismissed when h e revealed his real identity as head of an independent state. By contrast, a civil claim for money due the plaintiffs was allowed by the French courts against former Queen Isa bela of Spain, then living in Paris.{ Jurisdiction was assumed because she had already been deposed at the time and was no longer entitled to royal prerogatives.

The Foreign Secretary It was common before for heads of state to personally undertake the function of diplomatic .negotiations, but the practice has now largely fallen into disuse. Except ou nrre occasions when the matter under consideration is of such 2

lbid.

~ L.R. (1894), 1 Q.R Div. 149.

• Oppenhellll,-UJ,Uterpacht, 761.

'l'IIE RIGHT OF Lf.GAT!ON

14.q

significance or delicacy as to warrant no less than what is known as a "summit meeting," the conduct of external affairs is now generaHy entrusted to the foreign secretary or minister. Under the municipal law of most states, the foreign secretary is the immediate representative of the head of state and directly under his control. As such, he can make binding declarations on beha1f of his state on any matter falling within his authority, such as questions re1ating to recognition nf states or gO\rernments and the settlement of international claims against t he state. 5 The foreign secretary is also the head of the foreign office and has direction of all ambassadors and other diplomatic representatives of his government.

0-ipl.o matic Envoys The regular or day-to-day conduct of international affairs is entrusted to the members of the foreign service who are accredited by the sending state as its permanent envoys to represent it in the states with which it is main· taming diplomatic relations. The development of this service was the offshoot of the practice of establishlng permanent legations which became general during the seventeenth century. The heads of these diplortatic m.issions aI8 classified as follows by the Convention on Diplomatic Relations. which was signed at Vienna in 1961: (1) Ambassadors or nuncios ::ll'.~rE'ii1t.ed to heads of state. (2) Envoys, ministers or internuncios a.ccredited to heads of state. Case concerning the Legal S tatus of Eastern Greenland, de· cided April 5, 1933, by the Permanent Court of International Justice, . " Oppenheim-Lauterpacht, 765,-766. l • y Jj 5

lJ.

I ( 3)

Charges d'affaires accredit~cl. to mini.~~p,~ for 6

\

T HI!: R u.:m · 0P I ·~X;ATION

llITEilll,\TIONhL LA~.Y

141

foreign affairs. The classification of diplomatic representatives was considered significant before because direct communication with the head of state depended then on the rank of the diplomat and, moreover, only the powerful states were regarded as entitled to send envoys of the highest rank At prnsent, however, dipk,i_natic matters are usually discussed n ot with the h ead of state but with the foreign secretary regardless of the diplomat's rank Moreover, it has become the practice now for even the smallest ·and weakest states to send diplomatic representatives of the highest rank, even to the major powers. It may be said, therefore, that the distinctions among the members of the diplomatic service are important only in connection with matters of protocol or the grant of special honors. In other respects, the various diplomatic agents enjoy substantially the same prerogatives regardless of rank.

The Diplomatic Corps The diplomatic corps is a body consisting of the different diplomatic representatives who have been accredited to the same local or r eceiving state. It is headed by a doyen du corps who, by tradit ion, is the oldest member with the highest rank or, in Catholic countries, the Papal Nuncio. In the Diplomatic Convention, however, it is provided that "heads of missioni:i shall take precP.d.en0e in their resp~tive classes in t.hP. order of the date and ti mP. 7 of taking up their functions.'' Being a loose organization without any corporate · character, the diploma tic corps does not possess any legal

: ~a. Aft., ri

14. 16.

14n

powers or attributes. It is nonetheless important in watching over diplomatic privileges a.nd honorR :m.d ha.s at time.q acted officially in the protection of the rights of its members.

Appointment of Envoys The Diplomatic Convention provides that the class to which the heads of their missions are to be assigned shall be agreed upon between the states concemed. 8 Moreover, the sending state must make certain that the agrement of the receiving state h as been given for the person it proposes to accredit as head of the mission to that state.9 The appointment of diplomats is not merely a matter of municipal law because the receiving state is not obliged to accept any representative who is persona non grata to it. Indeed, there have been cases when accredited representatives were rejected, resulting in strained relations between the sending and receiving states. For example, an American minister was not received in Italy for having previously protested in a speech the annexation of the Papal States by Italy; and when next accredited to Austria he was also rejected, this time because he was married in a civil ceremony to a Jewess. The United States government considered these reasons inadequate but could not, of course, insist on its appointment. To avoid such awkward situations, most states now observe the practice of the agreation, by means of which informal inq1.1iries are. addressed to the receivi.r, g state regarding a proposed diplornati.c representafr,:e of the sending state. It is only when the receiving state manifests its agrement or consent, also informally, that the diplomatic representative is appointed and formally acc1·edited. 8

Art. lp.

• Art.

4.

h rrEru,ATl Ol,l,\l, r.,A.W

146

Article 4 of the Diplomatic Convention provides that "the receiving state is not obliged to give reasons for a refusal of ag rement." Under our Constitution, it is the President who is empowered to appoint ambassadors, other public ministers and cons uls, subject to the consent of the Commission on Appointments. His discretion is exclusive when it comes to receiving ambassadors and other public ministers duly 10 accredited to the government of the Phllippines.

.; i lfl

TuR RIGHT OF L EGATION

147

been appointed economic counselor of the Romanian legation there. It was held that, since he had never been accepted as such by the Swis:;; government, he could not claip1
The functions of a diplomatic mission consist inter alia in: (1) Repre~':lnting the sending ;;:tate in t.hi=> n~ceiving

Commencement of the Diplomatic Mission

state.

The head of the mission is considered as having taken up lris functions in the receiving state either when he has presented his credential or when he has notified his arri val and a true copy of his credentials has been presented 11 to the foreign ministry of the receiving state. The credentials of the diplomatic agent include chiefly the letter of credence, or lettre de creance, by means of which he is accredited to the receiving state with the request that full faith and credit be given to bis official acts on behalf of the sending state. In addition to this document, the envoy usually also carries his diplomatic passport, his official instructions and a cipher or code book for use in sending secret communications to his government. Although marked with solemnity and sometimes even pomp, the reception of the envoy is not a n1ere ceremony. Unlel:-1!:l the receiving stAte had pn:i";omi1y given its agrement to his appointment, the diplomatic representative cannot claim the usual privileges and immunities of his ·office until he is formally accepted. Oppenheim cites· the case of one Vitianu, who was convicted of certain crimes in Switzerland despite his assertion that he had

(2) Protecting in the receiving state the intel'ests ,:,f the sending state and its nationals.

10

Art. VII, Sec. 16.

II

Diplomatic Convention, Art . 13.

(8) Negotiating r rith the government of the receiving state. (4) Ascertaining by all lawful means conditions and

developments in the receiving state and reporting thereon to the government of the sending state. (5) Promoting friendly relations between the send· ing and receiving states and developing their economic, cultural and scientific relations. 13

The diplomatic mission may also perform consular functions in the absence of a consular mission from the sending state. On reques t or by agreement, it may also represent friendly governments, as when the United States undertook the diploroi::itic rnp.resentation of the Philippine Republic while we were still in the process of organizing our own foreign service. 14

Oppenheim-Laut.ernacht,. 784. Diplomatic Convention, Art. 3. "RP-US Treaty 0-~ne,;fll l,lelations . u

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TrITERHATION,\L .1 ,41A1

'I'HE RIGHT OF Li::GATION

Conduct of Diplomatic Mission

\

In the performance of his functions, the diplomatic agent must exercise the utmost discretion and tact, taking care always to preserve the goodwill of the sending state and to avoid interference with its internal affairs. The envoy is not justified in pitting or aiding one political party against another: or publicly criticizing the policies or acts of the receiving state, or employing threatening or offensive language or methods in the protection of the interests of his state or its nationals. His mission is also under no circumstance to be used for espionage, the dissemination of propaganda against the receiving state, or subversion of its government. The Philippine government ordered the closure of the Cuban embassy here when it was discovered to be engaged in subversive activities. Ambassador Hanihara was replaced in 1924 when he suggested in a letter to the U.S. State Department that the passage of a bill limiting Japanese immigration was likely to produce "grave consequences." Sending states have on occasion, volunta1ily or on request, 1-ecalled their diplomatic representatives for improper discharge of their functions.

Diplomatic Immm1iti.':'~.and Privileges_ Diplomats enjoy a number of privileges and immunities some of which can be traced to as far back as the Greek and Roman eras. The reason originally given for the special treatment of the envoy was the fiction of exterritoria1ity by which he was considered an extension of the state he was representing. But this view has yielded to the modem justification that his privileges and immunities are necessary to give the envoy the fullest freedom or latitude in the exercise of his official functions. ii,j.

149

Based largely on international custom, most of the diplomatic privileges and immunities have been reaffirmed and are now expressly provided for in the Diplomatic. Ccnvcmtion of 1961. Some of th~ rn0re important of these are briefly discussed hereunder. (a)

PP.nmn~l Inviolability

Like the head of state, the envoy is regarded as sacrosanct and is entitled to the special protection of his person, honor and liberty. An attack on any of these is deemed a serious offense and must be redressed with the most severe penalties by the receiving state. The Diplomatic Convention provides: "The person of a diplomatic agent shall be inviolable. He sha11 not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."15 But these rules are noi without exception. The envoy cannot complain if he is injured because he himself caused the initial aggression and thereby provoked retaliation or unduly exposed himself to danger a~ by mixing with a diso1·derly assemblage. 16 The local authorities may also, in exceptional cases, lay hands on him if he has committed an act of violence and it is necessary to place him in preventive restraint. In the Philippines, RA. No. 75 punishes, on the basis of reciprocity, "any person who assaults, sti;kes, wounds, imprisons or in any otber manner offers violence to the person of an ambassador or public minister, in violation of the law nations" with imprisonment for not more than three years ~nd a fine uot exceeding two hundred pesos in ·~ Art. -~9. Fenwtck, 469.

16

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150

lNTP.RNAnot-rAI.

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addition. to the penalties prescribed by the Revised Penal C(lde. lt is to be notP.d> though, that the attack is confined to the person of the envoy and does not indude his h0110r or reputation.

(b)

Immunity from Jurisdiction

It is a generally accepted principle of international law that the diplomatic agent shall be immune from the civil, criminal and administrative jurisdiction of the receiving state except in few .specified cases. This does not mean that he can violate the local laws with impunity; on the contrary, he is expected to observe them meticulously as befits a person of hls rank and prestige. If he does not, he may not be punished for his offense by the receiving state, but it can and usually will ask for his recall. So strictly observed is this immunity that the envoy can escape the rigor of the local laws even if he commits the most serious offense in the receiving state. Thus, when in 1584 the Spanish ambassador to England plotted against the life of Queen Elizabeth I, he was merely ordered to leave the country, as so too was the French ambassador when he was involved in a conspiracy to kill Cromwell in 1654. Interestingly, however, when in 1587 the French ambassador committed a similar offense against the same Queen Elizabeth I) he was simply given • 11 a warning. The Diplomatic Convention provides: "A diplomatic agent shall enjoy immunity, from the criminal jurisdiction of the receiving state. He shall also enjoy inummity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the s~ndi~g state for the purposes of

a

'i 1 •

Oppenheim-Lauterpacht,f'79l .

'Pm,: RIGHT OF LEGAi'ION

151

the rrussion; (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; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions."1& Immunity from ju:dsdiction may be waived expressly by the sending state, or under its authority, by the head of mission. Waiver may also be made impliedly, as when the person entitled to the immunity commences proceedings in the local state and thereby opens himself to any counter claim directly connected with the principal claim. However, waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of inununity in respect of the execution of the judgment, for which a separate waiver shall be necessary.19 RA. No. 75 provides that "any writ of process sued out or prosecuted by any person in any court of the Republic 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 are distrained, seized, or attached, shall be deemed void, and every persori by whom the same is obtained or prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall, upon conviction, be punished by imprisonment for not more that three years and a fine of not exceeding two hundred pesos in the discretion of the court." In \Vorld HPfl.lth Org0,ni,7.ation. v. Aquino,1-q, the re~pondent judge issued a warrant for the search and F1ei-

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INTERNATIONAL

152

L.\w

zure of certain goods alleg_ed to have been brought into the country illegally by an official of the World Health Organization. The WHO and the official moved to quash the wa1Tant on the ground of the latter's diplomatic immunity under the Host Agreement concluded between the Philippines and the WHO. The Secreta1y of Foreign Affairs joined them in this representation, as so too later did the Solicitor General. Neverth~less, the judge denied the motion, holding that there were "strong and positive indications of violations of local laws." ln annulling the search warrant, the Supreme Court held as follows: 1. The executive branch of the Philippine Government has expressly recognized that petitioner Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host Agreement. The Department of Foreign Affairs formally advised respondent judge of the Philippine Government's official position that accordingly 'Dr. Verstuyft cannot be the subject of a Philippine court summons without violating an obligation in intemational law of the Philippine Government' and asked for the quashal of the search warrant, since his personal effects and baggage, after having been allowed free entry from all customs and duties and taJLes., may not be baselessly claimed to have been 'unlawfully imported' in violation of the tariff and customs code as claimed by respondent COSAC officers. The Solicitor General, as principal law officer of the Government, tikewise expressly affirmed said petitioner's right to diplomatic immunity and asked for the quashal of the search warrant. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the rlea of diplomatic immunity is recognized and affirmed by the e:irecutive branch of the gov. ernment as in the ·case at bar, it is then the duty of the courts to accept the ,claim of immunity upon appropriate suggestion by the p:riri_cipal law officer of the government, the Solicitor General in tJ:us·cas.e, or other officer acting under his direction. Hence, inra~e'[i;nce to the settled principle that courts may not so exeri!i~ t:h~r jurisdiction by seizure and detention of propel'ty, 1t4 to embarrass the executive arm of the government

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153

in conducting foreign relations, it is accepted docttine that 'in such cases the judicial department of (this) government follows the action of the political branch and will not embanass the latter by assuming an antagonistic jurisdiction.' 2. The unfortunate fact that respondent judge chose to rely on the suspicion of respondents COSAC officers 'that the other remaining crates unopened contain contraband items' rather than on the catego1ical assurance of the Solicitor Gen· eral than petitioner Vei-stuyft did not abuse his diplomatic immunity, which was based in turn on the official positions taken by the highest exP.cutive officials with competence and authority to act on the matter, namely, the Secreta1ies of Foreign Affairs and of Finance, could not justify respondent judge's denial of the quashal of the search warrant. As already stated above, and brought to respondent court's attention, the Philippine Government is bound by the procedure laid down in Article vrr of the Convention on the Privileges and Immunities of the Spedalized Agencies of the United Nations for consultations between the Host State and the United Natio11s agency concerned to determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for other recoUl'ses. This is a commitment voluntarily asswned by the Philippine Government and as such has the force and effect of law. Hence, even assuming arguendo as against the categorical assurance of the executive branch of government that respondent judge had some ground to prefer respondent COSAC officers' suspicion that there had been an abuse of diplomatic immunity, the continuation of the search warrant proceedings before him was not the proper remedy. He should, neverthe· less, in deference to the exclusive competence and jurisdiction of the executive branch of government to act on the matter, have acceded to the quashal of the search warrant, and forwarded his findings or grounds to believe that there had been such abuse of diplomatic immunity to the Departm,mt of Foreign Affairs for it to deal vvith, bl accordanre with the afore· mentioned Convention, if so warranted.

In the case of The Holy See u. &sario, l9b the Supreme Couit dismissed a civil complaint a gain~t the petitioner 19 b

238 SCRA 524. .. ~

154

lNIERNAIION:\L L AW

] f!E H 1GH1' OF T .MA'l'I0N

after the Department of Foreign Affairs had "officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction as entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country." It was further affirmed that "the detennination of the executive arm of the government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts'. Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to emban·ass the executive arm of the government in conducting the country's foreign relations."

envoy's offices, his residence and out-buildings, his means of transportation, :md the compound where these are found, which may not be entered by the local authorities without his permission.

(c)

l fifi

But this rule i~ not absolute as it is allowed, in cases of clear and urg~nt necessity, for the local authmities to take forcible measures to a1Test any person subject t-0 their jurisdiction. The so-called right of diplomatic asylum has not received. universal recognition except when it is extended for humanitarian reasons, as when the fugitive seeking sanctuary is in immediate danger of his life or safety. In other cases, asylum is granted only on the strength of local usage, partiC'ularly in favor of political refugees, or of treaty stipulations. Of particular interest is the case of Sun Yat Sen, who was detained in 1895 in the Chinese legation in London in defiance of a writ of habeas corpus. When the British gov ernment threatened to use force to carry out the order of the court, the Chinese minister immediately ordered the prisoner's release.

Inviolability of Diplomatic Premises

The Diplomatic Convention provides: "The premises of the mission shall be inviolable. The agents of the receiving state may not enter them except with the consent of the head of mission."ro It also places on the receiving state "a special duty to take all appropriate steps to protect the . pre:rrrises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.'m Furthermore, "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 excution.22 Originally derived from the principle of exterritoriality hut now generally j-vstif:ied on more pragmatic gronnds, the so ·called (ranr.hise de· l'hotel P-xt.e.nds immunity from the local law to the diplomatic premises. These include the

(d)

Inviolahilit.y of Ar~hivP~

For quite obvious reasons, the receiving· state has no right to pry into the official papers and records of a foreign diplomatic mission. Accordingly, the Diplomatic Convention simply provides that "the archlves and documents of the mission shall be inviola.ble at any time and wherever 23 they may be." This is true even in case of armed conflict, during which the archives must rfnY1~in ~':'fll~,:\ and may not be confiscated by the local state.

20

Art. 22. Ibid. 22 Ibid. 21

2 '

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Art. 24.

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156

}N'J'F,RNA'Tl0NA1, l,AW

Inviolability of Comm tmi6:: I:\ t.i m1

~A)

Being essential to the proper discharge by the e nvoy of his official functions, the right to free communication is recognized and protected by international law. According to the Diplomatic Convention, "The receiving state shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the government and other missions and consulates of the sending state, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher.',24 Such communications are "inviolable" and the diplomatic bag containing it "shall not be opened or detained." Even the diplomatic courier carrying the diplomatic bag "shall be protected by the receiving state in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.',25 (f)

'I'HF.

Exemption from Testimonial Duties

The Diplomatic Convention also provides that "a diplomatic agent is not obliged to give evidence as a witness. " 26 Nevertheless, he is not prohibited by international la w from doing so and may waive this privilege when authorized by his government. For example, the Venezuelan envoy testified at the trial of the assassin of Presi dent Garfield in 1881. On the other hand, the Dutch envoy to Washington invoked this right in 1856 when he rejected a request to testify in connect'ion with a homicide committed in his prei::ence and for the prosecution of which his testimony was necessary. The American government later asked for his recall.

(g)

2 •

Art. 27.

16

Art. 31.

1fi7

ExP.mption r-~·om Taxation

The diplomatic envoy is also exempt from taxes, customs duties, and other dues, subject to the exception listed in the Diplomatic Convention, 21 and as well as from social security requirements under certain conditions.28 His personal baggage is also free from inspection unless there are serious grounds for presuming tb~t it i::ontains articles not exempt from customs duties or not admissihle inti) thP. receiving state.29 (h)

Ot.hP.r PrivilPg"?''!

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving state shall ensure to all members of the mission freedom of movement and travel in its territory. 30 The receiving state shall also exempt diplomatic agents from all personal serv:ices, from all public services of any kind whatever, and from military obligation such as those connected with requisitioning, military contributions and bil1eting. 31 The mission and its head shall have the right to use the flag and emblem of the sending state on t he prAmi.ses of the mission, inc) ud.i ng the residence of the head of the mission, and on his means of transport.32

21

Arts. 34, 36. Art. 33. Art. 36. ao Art. 26. 1 • Art. 35. =Art. 20. u

,s Ibid.

H IOHT OF LP.GATION

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158

illTF.RN .. 'T'TONAL

l ,AW

The Diplomatic Suite or Retinue The above-discussed immunities and privileges are available not only to the head of mission and his family but also to the other members of the diploma tic retinue, albeit not in the same degree. The diplomatic retinue consists of the diplomatic staff, the administrative and technical staff and the Sef'\?,ce staff. The administrative and t.echnical staff enjoys the same rights as the diplomatic staff except that immunity from civil and administrative jurisdiction shall not extend to unofficial acts. On the other hand, the private servants of the officiai members of the mission, if they are not nationals or permanent residents of the receiving state, enjoy only exemption from dues and t ruces on their income from the mission a nd such other immunities and privileges as may be granted by the receiving state.33 Du.ratio:n Every person entitled to diplomatic privileges and immunities shall enjoy them from the moment he enters the territory of the receiving state on proceeding to take up his post or, if already there, from the moment h is appointment is notified to the foreign ministry. 34 When his functions have to come to an end, his privileges l:lnd immunities sh:tll normally cea..~e from the moment h e leaves the country or on expiry of a reasonable time in which to do so, but $hall subsist until such time even in case of armed conflict. However, with respect to acts perfor med by him in the exercise of his official functions, immunity shall continue indefinitely as it is sup-

T HE RIGHT OF LF.:GAT IOU

posed to have attached not to hirr.1 personally but to the state 118 w::is representL1g. 35 These privileges and immunities are available to him and to his family not only in situ but as well in transitu, that is, when t r aveling through a third state on the way to or from t he receiving state, so far as m~y bP. necessary to secure his tra nsit or return.36

'T'ermination of Diplomatic Mission

A diplomatic mission may come to an end by any of the usual methods of t.erminating official relations, ljke death, resignation, removal, abolition of the office, ~ . These are governed by municipal law. Under int.ernational law, the more important modes are recall and dismissal. Recall may be demanded by the receiving state when the foreign diplomat becomes persona non grata to it for any reason. An example is the request made by the U.S.S.R. in 1953 for the recall of U.S. Ambassador Kennan for making derogatory statements against the Soviet Government. Where the demand is reject.ed by the receiving state) or even without making a request for recall, the receiving sta te may resort to the more drastic method of dismissal, by means of which the offending diplomat is simply asked to leave the country. In October 1971, for instance, the British Government ordered no less than 105 SoyjP,t diplomat.ic officials to leave Great Britain-the largest diplomatic expulsion in peacetime history-for espionage. The U.S.S.R. lat.er retaliated by ousting 5 British diplomats and refusing to accept 13 others. In 1976, the North Korean ambassador and several members of his diplomatic mission were ex3s

36

~

159

Ibid. Art. 40

I1i)\ '

INTERNA'l'IONAI. L,\'h'

160

pelled by the Scandinavian states to which they were accredited, for alleged involvement in illicit drugs. The outbreak of war between the sending and receiving states terminates their diplomatic relations, which are in fact usually severed even before the actual commencement of hostilities. Extinction of either state will also have the same effect. As for change of government, diplomatic relations are not disturbed if the change is peaceful but may be suspended where it is effected by means of violence and ·the new government has not yet been recognized by the receiving state. In either case, according to Oppenheim, thP,re ig a necessity for the diplo37 matie 1:1.gPnt._t.o he provided with a n-ew J.i:>t.t.P.r nf r.rnclP.nce.

37

Chapter 13

CONSULS \'

CONSULS are state agents residing abroad for various purposes but mainly in the interest of commerce and navigation. Unlike diplomatic agents, they are not charged with the duty of representing their states in political matters nor are they accredited to the state where they are supposed to discharge their functions. For this reason, consuls do not ordinarily enjoy all the traditional diplomatic immunities and privileges, although they are to a certain extent entitled to special treatment under the law of nations. The institution of consul dates back to as far as six centuries before Christ, when the Egyptians allowed the Greeks at Naucratis to choose from among themselves a magistrate who would apply to them the laws of their own country. Later, the Greeks began sending to foreign jurisdictions their own protectors or prostrates (proxenoi), a practice modified by the Romans with the appointment of the praetor peregrinus, who interpreted the law between Romans and foreigners. Following the conquest _of Rome, the Visigoths established a special comt that applied to foreigners their own national laws rather than the law of the territorial sovereign. Similar comts wer~ created 'by the Chinese during the eighth century and bv the Arahs in the ninth century. With the development of commerce in the Mediterranean cities and the Near East, numerous treaties of capitulation, as they were called, exempted European na~ tionals in the Near East from the local jurisdiction and

Oppenheim-Lauterpacht, 818.

.,,.

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CONSULS

!NrERNA'J'IONAL LAW

1h2

made them triable by their own consuls according to their own national laws. Eventually, in view of their growing importance, consuls acquired official character when they were commissioned directly by their own governments rather than merely by their own countrymen. The rise in nationalism and the concept of sovereignty, however, gradually decreased much of the power of consuls until they became vested oqly with authority to act ge~erally on commercial. and related matters. Nevertheless, the continuing expansion of international commerce, coupled with the improvement of transportation and communication in the seventeenth and eighteenth centuries, led to the further growth of consular services.

1133

is the commission issued by the sending state,~ and the exequatur, which is the authority given to them by the receiving state to exercise their duties therein.4 Hence, consuls are public officers not only of the sending state but of the receiving state as well, and are governed by the laws of both. As in the case of diplomats, states may refuse to receive consuls and to withhold the exequatur from them without explanation. The consent given to the establishment of diplomatic relations between two states implies, unless otherwise stated, consent to the establishment of consular relations. 5 However, the severance of diplomatic relations shall not ipso facto involve the severance of consular relations,6 and vice versa.

Kinds and Grades There are two kinds of consuls, to wit, the consules 1 missi and the consules electi. The first are professional or career consuls who are nationals of the appointing state and are required to devote their full time to the discharge of their consular duties. The second may or may not be nationals of the appointing state and perform their con* sular functions only in addition to their regular callings. Although consuls enjoy a certain measure of international character, their grades or ranks remain a matter of municipal concern. Under the Consular Convention, however, the heads of consular posts are das~ified according to importance into con~uZ.i?e.neml, consul. virP.-consul and consnlar agent.

2

AppQ>intment Consuls derive their authority from two principal sources, viz., the letter patent or lettre de provision, which ' Consular Convention, Art. l, Sec. 2. Ibid., Art. 9, Sec. 2. .

2

Functions

Generally speaking, the functions of consuls may be divided into duties pertaining to commerce and navigation, duties respecting the issuance of passports and visas, and duties of protection of nationals. The principal duty of consuls is to promote the commercial interests of their country in the receiving state and to observe the commercial trends and developments therein for report to their home government. They also perform duties relating to navigation, such as visiting and inspecting vessels of their own states which may be in t.he consular district, exercising a measure of supervision over such vess';)ls, adjusting matters pertaining t.o t.hP.ir internal order and discipline: as well as visit-

3

Ibid., Art. 11, Sec. 1. : Ib~d., Art. 12,.S*e_(;- ;t. Ibid., Ai:t,. 2, Se,c.12! • s Ibid., Art. 2, S~i;.~J? .

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164

ing and inspecting foreign vessels destined for a port of the sending state. Consuls are also empowered to issue passports to nationals of the sending state. to visa passports and to issue documents relating to ~ntry into and travel within the teni.tory of the sending state, and to visa invoices and certificates of origin of goods destined for the territory of that state. It is likewise the responsibility of consuls to look after the interests of fellow nationals and to extend them official assistance whenever needed. Thus, they may authenticate documents, solemnize marriages, register births and deaths, temporarily administer the estates of deceased nationals within the consular district, advise and adjust differences between their fellow nationals, visit them when they are arrested or detained by the receiving state, assist them in proceedings before or in relation with the local authorities, and inquire into any incidents which have occurred within the consular district affecting the 7 interests of such nationals.

Immunities and Privileges

It had already been noted that consuls, not being diplomatic officials, do not ordinarily enjoy the traditional diplomatic immunities and privileges. However, international comity and conventions. have invested them with certain privileges and immunities which are generally recognized and observed by civilized states. By almost universal acceptance, consuls have a right to official communication and may corrP-~pond ·with their home government or other official bodies by any means, including cipher or code, without being subjected to censorship or unreasonable res~~-aintt However, this right .; Ibid., Art. 5.

165

may be cmtailed or restricted whenever it is exercised to the prejudice of the receiving state.6 Consuls also enjoy inviolability of their archives,9 which may not be examined or seized by the receiving state under any circumstance, nor may their production or testimony concerning them be compelled in official pro-

ceedings.lo But this immunity does not extend to the consular premises themselves, where legal process may be

served and arrests made without violation of international law, except only in that part where consular work is being performed. 11 In the famous case of Mrs. Kasenkina, for example, the United States rejected a protest made by Russia against the se1:Vice of a vvrit of habeas corpus upon the latter's consul at his official residence in New York for the production of a Russian schoo1teacher alleged to be detained in the premises. In fact, the consular offices may even be expropriated for purposes of national defense or public utility. 12 Respecting criminal offenses, the rule is that consuls are exempt from the local jurisdiction for crimes commit~ ted by them in the discharge of their official functions. But with regard to other offenses, they are fully subject to the local law and may be a1Tested, prosecuted and punished in proper proceedings. For reasons of comity, however, consuls usually are not prosecuted for minor offenses and, when arrested, are given adequate opportunity to secure their release on bail at the earliest possible time. 13 Civil suits may be :inst1tuterl agl=lirist const1ls in their personal or private capacity but not in matters connected 8

Ibid., Art. 35. Ibid., Art. 33. 10 I bid., Art. 44, Sec. 3. . .~ fbid., Art. 31. · ~" [bid., Art. 31, Sec. 4. 9

i{l!ic;l., :J 'i

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Arts. 40, 43 . ,

•

Jr,."J'gRNAT!ONAL

166

CONSULS

Lw• 14

with their official duties. 14 In Walthier v. Thomson, a for example, where a consul was sued for damages resulting from certain statements allegedly made by him, it was held that the "consular official is immune from suit when the acts complained of were performed in the course of his official duties ... Thus, if the statements allegedly made to Walthier by Thomson were uttered in pursuance of Thomson's official functions as a consular officer, then the suggestion of the ambassador of Canada should be adopted and the defendant held immune." Consuls are also generally exempted from taxation, customs duties, service in the militia, and social security rules, and are privileged to display their national flag and insignia in the consulate although these concessions are considered "non-essential'' to the proper dischaxge of their 15 official duties." These immunities and privileges are available not only to the consul but also to the members of the consular 16 post, their respective families, and the private staffs. 17 Waiver may in general be made by the sending state. With respect to acts peifonned by the consul or a consular officer or employee in the exercise of his functions, immunity from jurisdiction will subsist without limitation of 18 ti me.

Termination of Consular Mission The consul's office may end in accordance with the usual modes of terminating official relations, such as removal, resignation, death, Avp-irntion of the term, and the ------·, } 1 •

Ibid.,

Art. 13.

189 F. Supp. 319 (1960). 10 Ibid., Arts./!); 50, 52, 48, 29. 16 Ibid., Art. 5'3~1 Secs. 1, 3. 11 1b·d 4 s·~ee.,l. lA ~ ., Art.... ; , ·~ Ibid., Art.-!i Se_cs. 3, 4.

1 ••

167

like. The exequatur may also be withdrawn by the receiving state, either of the appointing or receiving state may be extinguished, or war may break out between them. In the event of war, the consulate is closed and the archives are sealed and left in the custody of a Cdretaker, usually a consul from a neutral state. The consul from the belligerent state is allowed to depart for his own country as soon as possible and without unnecessru-y molestation. It should be noted that severance of consular relations does not necessarily terminate diplomatic relations. Thus, as an offshoot of the Kasenkina case, Russia a11d the United States discontinued consular relations for more than fifteen years. During thP t. pP.rinn, howP.oP.r, t.hP.y maintained diplomatic relations.

'fHEA'TIES

CJrnpt.er 14

TREATIES

169

into one which may be organized on any chosen lev':'l of social integration. Finally, they frequently provide the humus for the growth of int.P.rnMiorni I mi::;t.om::iry l:::iw 2 F.ssP.nti~l RP.qnisites of a Valid Treaty

\

A TREATY may be defined as a 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 riations. In, its generic sense, the term treaty may embrace such other compacts as conventions, declarations, covenants, acts, concordats, etc., although there are recognized variations in their extent or purposes. All such agreements, when intended to create legal as distinguished from moral obligations, are binding on the parties. An executive agreement is not a treaty insofar as the concuITence thereto of the Senate is not required under our Constitution. However, the distinction is purely municipal and has no international significance. From the viewpoint of inte1national law, "treatise and executive agreements are alike in that both i::-nn~t.it.nt.P. equally bind 1 ing ob1igations 1.1pnn t.hP. ni:it.ion."

Fun~t.ions of Treaties According to Schwarzenberger, treaties are supposed to perfonn four important functions. In the first place,

treaties enable parties to settle finally actual and potential conflicts. Secondly, they make it possible for the parties to mQdify the rules of jnternational customa.ry law by m8ans of optional principles or standards. Thirdly, they m~y lean to a transformation of unorganized international society 1~.S. Sayre, 39Columbia Law Review, p. 75, 1939. • J; .

168

To be valid, a treaty must: (a) be entered into by parties with the treaty-making capacity; (b) through their authorized representatives; (c) without the attendance of duress, fraud, mistake, or otlwr vice of i:-onsent; (d) on a.ny lawful subject-matter; (e) in accordance with their respec t:jvP. C".On~t:it.11t.ioni:il

prnl"P.!':~A!':

(a) Treaty-making Capacity

All states have full treaty-making capacity unless limited by reason of their status or by previous selfimposed inhibitions. Thus, the protectorate is restricted in the control of its external affairs by the protector state; a neutralized. state may not agree to a defensive or offensive alliance. On the other hand, there are instances, as already pointed out, when even mere colonies have been allowed to sign treaties or join international conferences as full-fledged members along with sovereign states. The United Nations and its organs, such as the Security Council and the Economic and Social Council, and international bodies like the World Health Organization, may ~lso enter into tre.a.tjes. (b)

Authorized Representatives

It is for municipal law to detennine which organ of the state shall be empowered to enter into treaties in its behalf The Constitution of the Philippines, for example, authorizes the President to plake treaties, subject to the

l•ITEHN!1.TIC%\L LA'"I

°I'REA'rIE'3

concurrence of two-thirds of all the members of the Senate.3 This is in consonance with the general practice of assigning the treaty-making power to the executive department of the government, subject to the consent of the legislature or one of its branches. There is some conflict regarding the legal effect of a treaty concluded by an organ of the state without constitutional authority to undertake this function. On this point, the Harvard Research on International Law declares: "A state is not bound by a treaty made in its behalf by an organ or authority not competent under the law to conclude the treaty; however, a state may be responsible for an injury resulting to another state for reasonable reliance by the latter upon a representation that such organ or authority was competent to conclude the treaty." But this view is disputed by some writers, such as Hackworth, Hyde, and Willoughby, to name a few. McNair writes that if a party negotiating a treaty produces an authorization which appears to be complete a nd regular although in fact constitutionally defective, "the other party, if it is ignorant and reasonably ignorant of the de~ feet, is entitled to assnme that the instrument is in order and to hold the former to the 0bligAt.inn of the latter....

by Napoleon that the Spanish monarch would be tried for treason if he did not abdicate within twelve hours. A different question will arise, however, if the pressure is applied not upon the negotiator but upon the state itself, as in the case of a dictated treaty of peace. Such a treaty was upheld by earlier writers when war was still accepted as a legitimate means of compulsion. With the outlawry of war, however, it is now suggested that treaties of peace ex.acted from the vanquished belligerent should be regarded "not as voluntary compacts entered into as the price of peace, but rather as a sentence imposed by the international community upon aggressors for crimes committed against international law and the general peace.'.s The flaw in this explanation is that 1t automatically convicts the defeated state as the aggressor and would, in effect, sanction the acts of the victorio.us state even if essentially and undoubtedly illegal. Lauterpacht perhaps states the better rule when he observes: ''The position has now probably changed insofar as war has been prohibited by the Charter of the United Nations and the General Treaty for the Renunciation of War. The state which has resorted to war in violation of its obligations under these instruments cannot be held to apply force in a manner permitted by law. Accordingly, duress in such cases must, it is submitted, be regarded as vitiating the treaty."°

170

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(c)

Freedom of Consent

It is uniformly recognized that fraud or mistake will invalidate a treaty as it would an ordinary contract. However, there is still sbarp differ.ence of opinion on the legal AffP.cl of duress upon the treaty. A treaty forced upon the person ()r the uegoti~tor js unquestionably null and void ab initio, as_was the treaty signed at Bayonne in 1807 by Ferdinand \11 under threat ~

171

(d) Lawful Subject-Matter The Tres.ty ofTordesillas in 1494 is an example of an invalid trPat.y because of the illegality of its 811bject·matter insofar as it sought to divide between Spain and Portugal parts of the Atlantic, Pacific and Indian Oceans, which are

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'lREA'l'IES l1ITEIU'i ATTONAL LAW

172

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the altemat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical .to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. While most treaties now expressly provide that they shall be subject to ratification according to the constitutional processes of the negotiating states, the weight of authority is that the requirement would still hold true even without a provision to this effect in the instrument. Hence; in the absence of a stipulation to the contral'y, and more so if ratification is expressly required, an unratified treaty cannot be a source of obligations between the parties. But what if the treaty is ratified in viol.ation of the constitution of the ratifying state, as ,vhen it has not previously received the required approval of the ·legislature? The majority view on this question is that "foreign governments should be held to a knowledge oft}le·pQnstitutional prerequisites for ratification in each '"cbuntjy with \ :§if ; which they are dealing; .and ~ .. that a tr;\t) has

open seas under the law of nations. By the same token, a treaty with such unlawful purposes as traffic in white slavery or narcotics, which is contrary to international conventions and public morality, or the operation of the activities of pirates, who are host?~ lw.nianis 11eneri~, wonld be null arni void. (e) Compliance.with Constitutional Processes The treaty-making process is governed by international law except with respect to the method of ratification as required by the municipal law of most states at present. Non-compliance with this requisite will prevent enforcement of the treaty even if already signed by the authorized negotiators. Treaty-making Proc~~~ The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties. Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his · authorized representatives. These representatives are provided with credentials kno~n as full powers, which they exhibit to the 1.o ther negotiators at the start of the formal dier.ussiop~..)~ .i s standard practice for one of the parties to subajt~ ·~ raft of thP. prnposed treaty which, together with• tMl counter-proposals, becomes the basis of • -- -r.· "it¥,.'.,, the subsequen~ n~ot}ations. The negotiations may be bf.ief or p,r otrac~ji,~~ending on the issues involved, and may even '!coJ).ap$l7. ip~c~se the parties are unable to come to an agreemen.tf p}~e.~~nts under consideration. ,,

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been ratified without proper observance of these requirements is ipso facto invalid, whatever the proclamation of 1 the head of the state may assert in that respect." There is no legal obligation to ratify a treaty, but it goes without saying that refusal to ratify must be based on substantial grounds and not on superficial or whimsical reasons: otherwise the other state would be justified in taking offense. At times; to avoid total rejection of a treaty, the ratification.is qualified or made conditional, i.e., with reservations, in which event the same must be accepted by the other party 1f these would constitute a modification of the original agreement. Finally, it should be stressed that under the Constitution of the Philippines, the power to ratify treaties is vested in the President and not, as is commonly believed, in the legislature. The role of the Senate is confined simply to giving or withholding its consent (a ''veto power" as Corwin calls it) to the ratification. For that matter, it is competent for the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, to refuse to ratify it. But as a rule, of course, he cannot ratify a treaty without the concurrence of two-thirds of all members of the Senate. The last step in the treaty-making process is the ext:han.ge of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date bas been agreed upon by the parties. Where ratification js dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature. .Under Article 102 of the U.N. Charter, a treaty not . registered with the Secretariat, by which it shall be pub- . lish~, .~ o t be invoked before any organ of the United.. "~ .. • .'

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Nations, such as the international Court of Justice. Nevertheless, the treaty does not cease to be binding between the parties and may be the basis of a litigation before some other arbitral or judicial body not connected with the United Nations. This is a modification of the rule under the Covenant of the League of Nations, which provided that. treaties not. registernd An
Binding F.ffP.~t. nf 'fu=>M.iP.!i: As a rule, a treaty is binding only on the contracting parties, including not only the original signatories but also other states which, although they may not have participated in the negotiation of the agreement, have been allowed by its terms to sign it later by a process known as accession. Non-parties are usually not bound under the maxim pac-ta tertiis nee nocent nee prosunt. There are instances, however, when third states may be validly held to the observance of or benefit from the provisions of a treaty. Firstly, the treaty may be merely a formal expression of customary international law which, as such, is enforceable on all civilized states because of their membership in the family of nations. An example would be the Hague Conventions of 1899 and 1907. Secondly, it is provided under Article 2 of the U.N. Charter that the Organization "shall ensure that non-member States act in accordance with the principles of the Charter so far as may be necessary for the maintenance of intemation.al peacP. and security," and under Article 103 tnat. the obligations of member-states shall prevail in ca.se. of conflict with "any other international agreement," including those concluded with non-members. Thirdly. the treaty itself may expressly extend -its ~enefits to non-signatory states, such as the Hay-Pau:q.~fol:e Treaty of 1901, which, . although concluded only by ,tb,e United States and Great ~ •

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Britain, opened the Panama Canal "to the vessels of commerce and of war of all nations observing these Rules, on terms of entire equality." Parties to apparently unrelated. treaties may also be linked by the most-favored-nation clause, under which a contracting state entitled to most-favored-nation treatment from the other may claim the benefits extended by the latter to another state in a separate agreement. To illustrate, if X agrees to extend most-favored-nation treatment to Y and there.fl.fi:P.r grants tariff preferences to Z under :mother treaty. Y will be entitled, by virt.ue of it!:: treaty with X, to enjoy the same advantages conceded to Z. Observance of Treaties

One of the fundamental rules of international law is pacta sunt servanda, which requires the performance in good faith of treaty obligations. Despite supervening hardships such as conflicts with the municipal law or prejudice to the national interest, the parties must comply with their commitments under a treaty and cannot ignore or modify its provisions without the consent of the other signatories. Willful disregard of a treaty is frowned upon by the society of nations and is likely to stigmatize the erring state, especially if the other contracting parties see fit to invoke the influence of world opinion as a means of enforcing compliance. Violations of treaties can lead to more clra.c;.tic consequences, including war. In Taiiada v . .Angari:t,7" the Supreme Cou.1.t observed: One ,:>f th .. nlil<>!'t ~,,d fi.1T1rlMnental rules in inte':"T'"H,m~ 1 law is pacta sunt servanda-international agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties xxx A state which has contl'acted.iYalid interna7•

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tional obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken."

By their inherent nature, treaties really hmit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval base, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imp<)sed by the very nature of membership in the family of nations and ~2) lim.itati<::>n.e iIT'rt;>s':',:1 hy ~"':"<>ty !>.l:ip•.•l
It has already been observed that when a treaty conflicts with the constitution of one of the parties, the former is nevertheless internationally binding although unenforceable under municipal law. The reason, according to Willoughby, is that "peculiarities of constitutional structure are without intem&tional significance to other states. Each state, as a member of the international society of states, has an organ or government through which it communicates with and enters into contractual and other relation~ wit.h other 8tates. Whatever undertakings are enternd jnto by such Ot'g'ani:; arP. internationally binding upon the states which th~y represent."5 Under these circumstances, the state called upon to perform its obligatipns may ask for a revision of the treaty, ~

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amend its constitution to make it confo1m to the treaty requirement, or pay damages to the other parties for its inability to comply with its commitments. But despite the general requirement of strict enforcement of treaties, states have on occasion invoked the doctrine of rebus sic stantibus, which Jessup describes as "the equivalent exception to the maxim pacta sunt servanda. ..& According to. him, "the doctrine constitutes an attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable." 10 Thus, to use his own illustration, if states A and B agree upon the reciprocal use of their respective port facilities and B's only important port is thereafter ceded to state C, A should be released from continuing to accord the treaty privileges to B, which is no longer able to perlorm its obligation. The Draft Law of Treaties prepared by the Jnt.ernational Law Commission r~cognizes the doctrine as a mod':' of terminating t.r PJ'lt.iP.~ in the following pr0vi~i,m :

The doctrine of rebu:;; sic stantibus was invoked by the United States when it announced that it would no longer consider itself bound by the International Load Line Convention, which was concluded in 1930 to limit international competition in the loading of cargo vessels. In justifying its stand, it claimed that the agreement contemplated peacetime commerce and voyages and that because ten of the thirty-six signa tories were at war and the other twenty-six were maintaining a "precarious neutralityt the situation int.ended to be regulated had become "a wholly different one." Accordingly, President Roosevelt declared that "under approved principles of international law, it has become, by reason of such changed conditions, the right of the United States of America to declare the Convention suspended and inoperative."11 It is to be noted, however, that the doctrine of rebus sic stantibus is subject to the following limitations: (a) it applies only to treaties of indefinite duration; (b) the vital change must have been unforeseen or unforeseeable and should not have been caused by the party invoking the doctrine; (c) the doctrine must be invoked within areasonable time; and (d) it cannot operate retroactively upon the provisions of the treaty already exeCJited pri.or to the ('hl:lnge Qf cireumstances. 12

Where a fundamental change has occurred with regard to a fact or situation existing at the time when the treaty was entered into, it may be invoked as a ground for terminating or withdrawing from the treaty if: a. The existence of that fact or sit uation constituted an essential basis of the cons~nt of the parties to the treaty; and b. The effect of the change is to tra11sform in an essential respect the charact er of th'c' nl-.lig::itiorn=i undertaken in the treaty.

Treaty Interpretation

As in the case of contracts, the basic rule in the interpretation of treaties is to give effect to the intention of the parties. This should be discoverable in the terms. of the treaty itself, which ordinarily has an official text or texts to be used in case of conflicts in interpretation. Most treaties -t

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also contain a "pr otocol" or "agreed minutes" in which certain terms used in the body are defined and clarified . The usual canons of statutory construction are employed in the interpretation of treaties. Thus, to mention a few, specific provisions must be read in light of the whole instrument and especially of the purposes of the treaty. Words used are to be given their natural meaning unless a technical sense was intended, and, when they have different meanings in. t h e contracting states, should be interpreted in . accordance with the usage of the state where they are supposed to take effect. Doubts should be r esolved against the imposition of obligations and in favor of the freedom and sovereignty of the cont racting parties. At all event.s, an interpretation that will lead to an absurdity is to be avoided and a more rational result preferred. Where intrinsic aids are unavailing, resort may be made to extrinsic aids, such as the circumstances leading to the conclusion of the treaty, statements recorded at the time of the negotiations, the p1·eliminary materials used, i.e., the travau.."C preparatories, and the like. Needless to say, conflicts in treaty interpretation may be resolved only by agreement of the parties themselves or by an international body and not uml~terally by the national courts of the contracting parties. Decisions of such courts are received with refl.p~,:t. but not RB ~.ut.hority.

(5) By desistance of the parties, through express mutual consent; desuetu.de, or the exercise of the right of denunciation (or withdrawal), when allowed. (6) By novation. (7) By extinction of one of thA p i:nt.iP~ if the t.re~tv i!'.l

bipartite. (8) By vital change of circumstances under the doctrine of rebus sic stantibus. (9) By outbreak of war between the parties in most cases, save specifically when the treaty was intended to regulate the conduct of the signatories during the hostilities, or to cede territory, or to fix boundaries. AB held in Techt v. Hudges,13 provisions of a treaty compatible with a state of hostilities, unless expressly terminated, will be enforced, and those incompatible rejected. (10) By voidance of the treaty because of defects in its conclusion, violation of its provisions by one of the parties, or incompa tibility .vith intemation::11 hn,v or thP. O.N. Charter.

Termination of Treaties A treaty may be terminated in any of the following ways: (1) By expir::itjno. of the ter.m, which may be fixed or s ubject to a resolutory condition. (2) · By accomplishment of the purpose. (3) By impossibility of performance. (4), By loss of the subject-matter.

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N A'l'IONALITY AMl STATELESSNESS

Chapter 15 NATIONALITY AND STATELESSNESS

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IT HAS ALREADY BEEN STRESSED that, save in certain cases, the individual is merely an object and not a subject of international law and is thus not directly governed by its rules, both in the enjoyment of rights and in the performance of duties. Ordinarily, the individual can participate in international . relations only through the instrumentality of the state to which he belongs, as when his government asserts a diplomatic claim on his behalf for injuries he may have suffered in a foreign jurisdiction. Th.is remedy is generally not available to him if he is stateless for there would then be no entity with international persona lity to intercede for him for the protection or vindication of his rights under the law of nations. Viewed in this light, nationality acquires not only municipal but international significance. Nationality is the µe that binds an individual to his state, from which he can cla im protection and whose laws he is obliged to obey. In other words, nationality is membership in a political community with all its concomitant rights and obligations. This term is often used interchangeably with citizenship, which however, has a more exclusive scope in that jt applies only to certain members of the state accorded more privileges than the rest of the people who also owe it allegiance. Thus, during the American regime in tb{s country, Filipinos and Amerioms w~re both considered nationals of the 'United Stat.Rs d.s a.· 1:iB oth er states but Filipinos were n evertheless not entitled to American citizenship rights for purposes of the administration of the internal affairs of the paren~ stat;e, such as

183

the right to vote for its public officerR like the President of the United States. The term subject, on the other hand, has particular reference to the naLionals of monarchial regimes, e.g., a British sub.iect, who may be a citizen of the rTnit.P.d Kingnom or of nnP. of it.~ ~ol oniP.C\.

Acquisition of Nationality Nationality may be acquired by birth or by naturalization. An individual acquires the nationality of the state where he is born jure soli or the nationality of his parents jure sanguinis. Naturalization, on the other hand, is a process by which a foreigner acquires, voluntarily or by operation of law, the nationality of another state. Naturalization may be direct or derivative. Direct naturalization is effected: (a) by individual proceedings, usually judicial, under general naturalization laws; (b) b) special act of the legislature, often in favor of distinguished foreigner,3 who have rendered some notable service to the local stat.e; (c) by collective change of nationality (naturalization en masse) as a result of cession or subjugation; and (d) in some cases, by adoption of orphan minors as nationals of the state where they are born. Derivative naturalization in turn is conferred: (a) on the wife of the naturalized husband; (b) on the minor children of the naturalized parent; a nd (c) on the alien woman upon man-iage to a national. 1 Derivative naturalization does not always follow as a matter of course, for it is usually made subj8ct t.o stringent restrictions and conditions. Our mYn law~, for inFtance, provide that an alien wom8n married to a Filipino shall acquire his citizenship only if she herself might be lawfully naturalized.2 I

Hackwm:th, )l.-3 . See ~ t Yao v. Commissioner ofl.mmigration, L-21289,, Oct. 4, 1.9J l. ~ 2

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An individual may sometimes find himself possessed of more than one nationality because of the concurrent application to him of the municipal laws of the states claiming him as their national. For example, a child born in the United States of Filipino parentage would be a citizen of that country under the jus soli as prescribed by American law and at the same time a citizen of the Philip· pines under our Constitution, which recognizes only the jus sanguinis. Again, under the doctrine of indelible allegiance, as observed by some states, an individual may be compelled to retain his original nationality notwithstand ing that he has already renounced or forfeited it under the laws of a second state whose nationality he has acquired. An illustration would be the case of a woman who upon marriage to a foreigner continues t:o be a national of her own state under its laws while also acquiring her husband's nationality in accordance with the laws of his state.29 Also in point is the William's Case,3 where an American citizen who had accepted a commission in the French navy was convicted of violating the Neutrality Act of 1874 notwithstanding his defense that he had boon naturalized in France; the court held that he had no power to renounce his allegiance without the consent of the United States and was, therefore, still subject to it~ la'l\1'3. By contrast, a state may allow any of its nationals to remain as such even if he may have acquired another nationality, as where he is conferred an honorary citizenship by a foreign government.

Nationality may be lost voluntarily or involuntarily. The voluntary methods include renunciation, express or implied, and reque!:,t for release, both of which usually precede the acquisition of a new nationality. The involuntary methods are fo,feiture as a result of some disqualification or prohibited act like enlistment in a foreign army or long continued residence in a foreign state, and substitution one nationality for another following a change of sovereignty or any act conferring derivative naturalization.4

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To provide against conflicts arising from divergent municipal laws on nationality, the following rules were embodied in the Hague Convention of 19::lO on fh'l C:onflir.t ofN M.ion::iliry T·?.w~: Art. 1. It is for each Stat.e to determine under its law who are its nationals. This law shall be recognized by other States insofar as it is consistent with international conventions, international customs, and the principles of law generally recognized with regard to nationality. Art. 2. Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State. Art. 3. Subject to the provisions of the present Convention, a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses. Art 4. A State may not afford diplc,matic protection to one of its nationals against a State whose nationality such person also possesses. Art. 5. Within a third State, a person having more ~-,. th~:'l on:_:ationality shall be treated as if he had only one~ ~

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Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either tho nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. (Principle of Effective or Active Nationality) Art. 6. Without prejudice to the liberty of a State to accord wider rights to renounce its nationality, a person possessing two nationalities acquired without any voluntary act on his part may renounce one 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 condition laid down in the law oft.hi> !=::b,t.. ._.,1,""" n'!\ti,.,nality he desires to surrender are satisfied.

Thus, where a person possesses both Philippine and American nationality, his claim to Philippine nationality shall be decided on the basis alone of Philippine law, to the exclusion of all other laws. If, on the other hand, he claims American nationality, the matter shall be resolved on the basis alone of American law, to the exclusion of all other laws. But if the issue of his real nationality is raised in a. third state, say Spain, the laws of that country will obviously be inapplicable as h e does not claim Spanish nationality. In this situation, Spain shall apply the principl~ of effective or active nationality, under which the dual national shall be considered the national exch1i::iivP.ly of r.h"' state .vith .vhich hP. is mni;:.t. r.l"~l:'ly i::onneded.

N,-\TIONALTTY ANO STATJ::IR~!':l\lJ?"::S

187

1JNITED STATES (ALEXANDER TET ,T ,RGB) v. AUS'I'R.TA AUD HUNGARY Tripartite Claims Commission, 1928; Decisions and Opinions (1929), p. 71

Question: Could the Austrian government subject Alexander Tellech, who was born of Austrian parents in the United States, to compu1sory military service? Held: "The action taken by the Austrian civil authorities in the exercise of their police powers and by the Austro-Hungarian military authorities, of which complaint 1S made, was taken in Austria, where claimant is voluntarily residing, against claimant as an Austrian citizen. Citizen ship is determined by rules prescribed by municipal law. Under the law of Austria, to which claimant had voluntari1y subjected himself, he was an Austrian citizen. The Austrian and the Austro-Hungarian authorities were well within their rights in dealing with him as such. Possessing as he did dual nationality, he voluntarily took the risk incident to residing in Austrian territory and subjecting himself to the duties and obligations of an Austrian citizen arising under the municipal laws of Austria."

THE CANEVARO CASE Tribunal of the Permanent Court of Arbitration, 1912; Scott, Hague Court Reports, 284.

Question: May Ita ly file a diplomatic claim agairist Pero. on behalf of Rafa.el Canevi:iro, who is a national of both stat-':!s undP.r t.1,1'\;,._. respective m •.u,ii:-ipal laws? Held: "Whereas, according to Peruvian legislation (34 of the Constitution), Rafael Canevaro is a Peruvian by birth because born on Peruvian terr-itory, and, whereas, on the other hand, according to Italian legislation (Article 44 of the Civil Code) he is of Italian iiationali . ~ ~use born

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NATIONALITY

lNTERl'lJ\'I'J0N~T T,t,:W

of an Italian father; whereas, as a matter of fact, Rafael Canevaro had on several occasions acted as a Peruvian citizen, both by running as a candidate for the Senate, where none are admitted except Peruvian citizens and where he succeeded in defending his election, and, particularly, by accepting the office of Consul-General for the Netherlands, after having secured the authorization of both the Peruvian Government and the Peruvian Congress; . . . under these circumstances, whatever Rafael Canevaro's status as a national may be in Italy, the Government of Peru has a 14ight to consider him a Peruvian citizen and to deny his status as an Italian claimant..." THE NOTTEBOHM CASE

I.C.J. Reports, 1955, p. 4 (Judg. April 6; 1955) Facts: Nottebohrn, a German by birth, had been a resident of Guatemala for thirty~four years when he applied for and acquired naturalization in Liechtenstein one month before the outbreak. of World War II. Many members of his family and his business connections were in Germany. In 1943, Guatemala, which had declared war on Germany, confiscated all his properties on the ground that he was an enemy national. Liechtenstein thereupon filed suit against Guatemala on his behalf as a naturalized citizen of Liechtenstein. Question: Was Nottebohm'R naturalization in Liechtenstein binding on Guatemala? Held: "The courts of third States, when they have before th':lm an i.ndividl, ~l \Vhom two cit.h er States hold to be their national, seek to resolve the conflict by having recourse to international criteria and their preva.iling ten¢tency is to prefer the real and effective nationality. . . (Nottebohm's) actual connections with Liechtenstein were . ~emely tenuous. No settled abode, no prolo1tg,.ed resi-

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dence in that country at the time of his application for naturalization . . . No intention of settling there was shown at that time or realized in the ensuing weeks, months or years-on the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there ... Naturalization was asked not so much for the purpos<:-) of obtaining a legal recognition of Nottebohm's membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent State that of a national of a neutral State, with the sole aim of thus coming wjthin the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations-other than fiscal obligations-and exercising the rights pertaining to the status acquired. "Gu~temala iR under no obligation to recognize a nationality granted in such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis-a-vis Guatemala and its claim must, for this reason, be held to be inadmissible."

Statelessness Statelessness is the condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another. An example of the first case would be that of a child born in a state where only thejus sanguinis is recognized to parents whose state observes only the jus soli. The second case may be illustrated by ar1 individnal who after renO'•Jn.-ing his original nationality in order to be naturalized in another state is subsequently denaturalized and is thereafter denied repatriatiorr 1:5y his former country. In such cases;'" the individual is, from the traditional viewpoint, powerless to !a~sert any right that otherwise -

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LWERNATIO.NAL LA";

NArn)1'·,LlTY AND STATELESSNESS

would be available to him under international law were he a national of a particular state. Any wrong suffered by him through the act or omission of a state would be damnum absque injuria for in theory no other state had been offended and no international delinquency committed as a result of the damage caused upon him. This is so because any injury to the individual by a foreign jurisdiction is, legally speaking, not a violation of his own right hut of the right of his state to the protection of its nationals; the right to complain belongs not to him but to th~ stat':' nf whi<>h he ;~ i:i n~t.ional. As explained ii, onP. ~M,P.:

of nationality by an individual upon hi8 retention or acquisition of another nationality, whether such loss be by expatriation, naturalization as to the wife and minor children, or adoption. In t.he case of naturalization, the wife and children retain their existing nationality if they are not also naturalized and, moreover, the wife will acquire her husband's new nationality, if permitted, only with her own consent. The adopted child's existing nationality is also not lost if he does not acquire the adopter's nationality. In other cases, it is provided that children shall have the nationality of the state of their birth whenever their parents are: (a) unknown; (b) stateless or of unknown nationality; or (c) a father who is stateless or of unknown nationality and a mother who is a national of the state where they are born. All this does not mean, however, that a stateless individual is entirely without recourse under the law of nations. Under the Covenant Relating to the Status of Stateless Persons, adopted in 1954, he is entitled to, among others, the right to religion and religious instruction, access to courts, elementary education, public relief and assistance and rationing of products in short supply, as well as t:reatmP.nt no lP.ss favorable than that accorded to aliens generally. Moreover, the terms of the Universal Declaration of Human Rights are sufficiently broad to encompass the stateless individual with its protection and sympathy as a member of the human family.

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The relation of rights and obligations created between two States upon the commission by one of them of an act in violation of International Law arises only among States subject to the international juridical system. There does not exist in that system. any relation of responsibility between the transgressing State and the injured individual for the reason that the latter is not subject to International Law. The injury inflicted upon an individual, a national of the claimant State, which implies violation of the obligation imposed by International Law upon each member of the Community of Nations, constitutes an act internationally unlawful, because it signifies an offense against the State to which the individual is united by bond of nationality. The only juridical relation, therefore, which authorizes a State to exact from another the performance of conduct prescribed by International Law with respect to individuals is the bond of nationality. This is the link existing between that law and individuals and through it alone are individuals enabled to invoke the protection of a State and the latter to intervene in their behalf. A State, for example, does not commit an international delinquency in inflicting an in· jury upon an individual lacking nationality, and consequently no Swte is empowered to interwme or complain '"'.l hi~ hA!i,ilf either before or after the inj u1y.

It was in view of this difficulty that the Hague Convention of 1930 adopted certain rules calculated to avoid the condition of statelessness and all its attendant inconveniences. Briefly stated, tbes} .,, . rules would condition loss '-. II E -.,; .:

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TRE.ATMENT ()F ALIENS

IT IS WELL SETI'LED that every state has the right, as inherent in sovereignty and essential to its own security and existence, to deterntin~ in what cases and under what conditions foreign~rs may be admitted to its territory. If it sees fit, it may even bar their entry altogether. Once it decides to accept them, however, its competence ~s territorial sovereign is limited by the requirement that they be treated justly, in accordance with the law of nations. If this duty is not observed, the alien and his state would have va lid cause for complaint. This is not to suggest that the a lien is entitled to special treatment over and above that accorded the national of the local state. On the contrary, the alien cannot as a rule claim a preferred position vis-a-vis the national of the state where he is at best only a guest. Thus, the foreigner may not enjoy the right to vote, to run for public office, to exploit natural resources, or to engage in certain businesses regarded as vital to the interests of the local state. Denial of su ch prerogatives is a sovereign act of the local estate to which the foreigner must be prepared to submit. It is, in fact, a cardinal rule of international law that the foreigner must accept the institutions of the local state as he finds them. 1 This rule is better stated in the saying, "Wben in Rowe, do as th~ Romans do." Considering his less privileged position, he cannot demand that the ways of his host country be altered to suit his own convenience or adjusted to gratify his own interests. This would mili' Jess~.V· 103.

192

OF Al.TF.l'lS

193

tate against the independence of the state and subordin ate its own will to the welfare of the alien. It is also an accepted principle that the state is not an insurer of the life or property of the alien when he is 2 within its territory. Like all individuals exposed to the incidents of social intercourse, he is expected to take the customary precautions for the protection of his own rights and to avail himself of the usual remedies when these , rights are violated. Accordingly, the state generally cannot be held responsible if the alien is victimized by a pickpocket or a swindler or is hurt in an accident through the fault of another individual and is unable to redress the wrong done to him. The relation between him and the state in these cases is too tenuous to make the latter liable for the injury he has sustained.

The Doctrine of State R esponsibility Notwithstanding the above observations, there are instances when the alien can claim a more favored position than the national of the local state and, in proper cases, hold the state liable for injuries comnutted against him while within its territory. Such instances are governed by what is known as the doctrine of state responsibility. Under this doctrine, a state may be held responsible for: (a) an international delinquency (b) directly or indirectly imputable to it (c) which causes injury to the national of another state. Liability vrill attach to the state where its treatment of the alien falls below the international standard of justice or where it is remiss in according him the protection or redress that is wan-anted by the circumstances. The doctrine of state responsibility bas been frequently invoked in recent tjmes because of the expanding 2

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need and desire of nations for wider relations in their commercial and cultural activities. Its function is to assure the traveler that when his rights are violated in a foreign state, he will not be denied any remedy simply because he is not one of its nationals. The idea, in other words, is to encourage more intercourse among the peoples of the world through inter-visitation of their respective countries. The Intern~tirnrnl ~t.andard of J ustfo<E' The int.ernatwnal standard of justice is a concept of controversial content that has defied precise definition. Some writers describe it as the standard of the reasonable state, that is, as referring to the ordinary norms of official conduct observed in civilized jurisdictions. As thus envisioned, the international standard of justice is deemed not satisfied if the laws of a state are intrinsically unjust, as when there is a marked disproportion between the degree of an offense and the penalty imposed for it, e.g., when a minor crime like petty theft is punished with death. The laws will also be below this standard if they authorize the summary decision of contentious cases without the observance of the usual rights to notice and hearing and other generally accepted requirements of due process. Where the laws of the state fall below the international standard of justice, it is no defense that they are applicable not only to aliens but as well, and equally, to the nationals of that state. The relations of that state with its own nationals are purely municipal; international law is involved in its relations with the nationals of other states. Hence, while the national may not dema.nd, say, the right of confrontation if this is not granted bv the local law, the foreigner can. This is the view morP. generally favored as against the so-called doctrine , qf equality of treatment. '

195

'l'REAn1ENT OF Al,lE!-:~

lM'I'F·'ANATTONAL LAW

The test of the international standard of justice was applied in the Chattin Case,3 where the United States fi!ed a claim on behalf of a national who was allegedly arrested, tried and sentenced illegally by the Mexican government and subjected to inhuman treatment in jail. In upholding most of the charges filed by the claimant, the arbitrators declared in part: The whole of the proceedmgs discloses a most astonishing lack of seriotasness on the part of the Court. . . Neither during the investigation nor during the hearings in open court was any such thing as an oral examination or crossexamination of any importance attempted. It seems highly improbable that the aci:used have been given real opportunity during the hearings in open court, freely to speak for themselves. It is not for the Conunission to endeavor to reach from the record any conviction as to the innocence or guilt of Chattin and his colleagues; but even in case they were guilty, the Com.mission would render a bad se1vice to the government of Mexico if it failed to place the stamp of its disapproval and even indignation on a criminal procedure so far below international standards of civilization as the present one ... Bringing the proceedings of Mexican authorities to the test of international standards . . . there can be no doubt of their being highly insufficient. Inquiring whether there is convincing evidenc~ of thes~ unjust proceedings ... the answer must be in the affirmative. Since this is a case of alleged responsibility of Mexico for injustice committed by its judiciary, it is necessary to inquire whether the tr~atment of Chattin amounts even to an outrage, to bad fait.h, to wilful neglect of duty, or to an insufficiE>11cy of government action recogni1able by every unbiased mim ...; and the answer her~ ?.g~i.n "an only hP. in the affirmative.

Failw·e of Protection or Redress Even if its laws conform to the international standard of justice, the sh1te may st.i.ll be held liable if it does not make reasonable effq_rts to prevent injury to the ~liP.n m-,

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having done so unsuccessfully, fails to repair such injury. Thus, the state will be h eld liable if a foreigner is killed and is shown that its authorities were informed in advance of the plot to kill him but did not act to forestall it. Furthermore, even if it did take reasonable precautions, the state would still be held liable if it thereafter does not employ the necessary diligence to anest and punish the malefadors or !)therwise redress the wrong committed. The degree of diligence required must, of course, vary with tne circumstances of every case. It is not as easy to control a riot as it is to prevent an individual crime, nor are the problems invariably the same in the apprehension of the criminals. In the Noyes Case,4 for example, the Republic of Panama was not held liable for injuries sustained by an American national from an unruly and intoxicated crowd in a small village, it having been shown that the local police force of three members was reinforced when disorder was apprehended, that a policeman and the police chief himself tried actively to protect Noyes when he was attacked, and that it was not possible to pinpoint the culprits in view of the tumultuous nature of the incident. By contrast, compensation was awarded to the Unit.ed States in the Youmans Case, 5 where it was shown that the very troops sent to disperse a Mexi.can mob joined it in killing a n 1Jmber of Americans. In the Galvan Case,6 the reason for holding the United States liable for the killing of a Mexican in Texas was not the failure to apprehend the criminal but the unreasonable delay in his prosecution, which dragged inconclusively for six years. For its part, Mexico was ordered to pay damages to the United

1'~1!:ATMEN'f 0~·

Exhaustion of Local Remedil::'-~

Bti.t even assurnin~ the liability of the state for an international delinquency, its enforcement cannot be claimed by the injured foreigner unless he first exhausts all available local remedies for the protection or vindication of his right:s. 8 This is a corollary of the principle that the foreigner must accept the institutions of the state as he finds them. The generally accepted view is that the state must be given an opportunity to do justice in its own regular way a11d without. unwarranted interference with its sovereignty by other states. As has boon aptly observed, . "It is a sound principle that where there is a judicial rem1

U.S. (Laura B. Janes) v. Mexioo, Opinions of the

8

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1927. • Mexico (Galvan) v. U.S:, Opipions of the Commissioners, 1926.

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197

States in the Janes Case, 1 where it appeared that eight years had already elapsed and the known murderer of an American national ha~ not yet been arrested and punished. It is important to.remember in this connection that responsibility does not irrunediately attach to the state upon a showing of a failure to prevent or redress an injury to aliens. Distinction must be made between direct and indirect state responsibility. The rule is that where the international delinquency was committed by superior government officials or organs like the chief of state or the national legislature, liability will attach immediately as their acts may not be effectively prevented or reve1·sed under the constitution and laws of the state. However, where the offense is committed by inferior government officials or, more so, by private individuals, the state will be held liable only if, by reason of its indifference in preventing or punishing it, it can be considered to have connived in effect in its commission.

• U.S. (Noyes) v. Pa nama, .General Claims Commission, 1933. $ U.S. (Yownans) v. Mexico, Opinions of the Commissioners,

1927.

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cdy, it must be sought; and only if it is sought in vain does diplomatic interposition become proper.'r.1 This r equirement may be dispensed with, however, if there are no remedies to exhaust, as where the laws are intrinsically defective or there is laxity or arbitrariness in their enforcement or where the courts are corrupt or where there is no adequate machinery for the administra tion of justice. There would also be no remedy available from the so-called "acts of state" which are not subject to judicial r eview.

Resort to Diplomatic Protection If t he injured foreigner has exhausted all local remedies but without success, he may then ava il himself of the assistance of bis state-but only if he has a state. Otherwise, he will have no party to represent him, and he by himself, being a mere individual, cannot institute his claim in his own name. In theory, as previously stated, any injury to an alien is a violation not of his own personal right but of the right of his state to have its nationals protected whenever they are in a foreign country. It follows that where the injured alien is stateless, ms case will be one of damnum absque injuria and cannot be the subject of diplomatic protection. So imrortant is the ti e of nat,.ona lity, in fact, that it is req•1ir.ed to exist from the time of the injury until the time 1 the international claim is finally settled. ~ Once this tie is broken, the claim itself is deemed automatically abated. If, therefore, th e injured national dies while the claim is under consideration and it should happen that his heirs are not nationals of the claimant state, the claim will lapse.

T 1,~~ ·1·u 1>N I OJ. ALIE NS

This requirement may yet yield to the growing view that the individual as such sh ould be allowed to institute an international claim against a foreign state for violation of his own personal rights. As it is now, it is already subject to the exception that the United Nations may file a diplomatic claim on behalf of its officials, as affirmed in the case of Count Falke Bernadotte,1' who was assassinated while mediating the Palestine crisis. It is noteworthy also that under the European Convention on Human Rights, the European Conunission on Human Rights and also contracting states other than the state of the injured individual may bring alleged infractions of the convention before the European Court of Human Rights.

Enforcement of Claim

An international claim for damages may be resolved through negotiation or, if this fails, any of the other methods of set tling disputes, like good offices, arbitration, and judicial settlement. Th ere have been cases also where hostile and forcible measures have been employed and when war itself has been resorted to as a means of compelling compliance with the demands of the injured state. In the event that the responsibility of the state is established or acknowledged, the duty to make reparation wil I arise. Such reparation may take the form of restitution or, where this is not possible, satisfaction or co1npP.nSa· tion, 13 or all three of these together. Thus, the settlement may consist of the restora tion or replacement of the object of the offense, a formal apology by the delinquent state and payment of damages as well.

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Avoidance of State H.esponsibiJ i ty The doctrine of state res ponsibility is applied more frequently to to:rtious rather than contractual liability because of the unwillingness of roost states to act as "collection agencies" for their nationals entering into private agreements with or in foreign countries. Nevertheless, to avoid the intervention of the alien's state in contracts of this nature, the local state sometimes incorporates therein what is known as the Calvo clause. This is a stipulation by which the alien waives or restricts his right to appeal to his own state in connection with any claim arising from the contract and agrees to lirmt himself to the remedies a:v::iilable under the laws of the local state. A typical Calvo clause follows: The contractor and all persons who, as employees or in any other capacity, may be engaged in the execution of the work under this contract either directly or indirectly, shall be considered as Mexicans in all matters within the Republic of Mexico, concerning the execution of such work and the fulfillment of this contract. They shall not claim, nor shall they have, with regard to the interests and the business connected with this contract, any other right or means to enforce the same than those granted by the laws of the Republic of Mexico, nor shall they enjoy any other rights than those esta blished in favor of Mexicans. They are consequently depiived of any rights as aliens, and under no conditions sbJ11l t.he intervention of fore ign tliplnm.at.ir. ~ents be p
Insofar as it. requires the alien to exhaust the remedies available in the. local st::itA, the Calvo clause may he enforced as a lawful condition of the contract. However, it may not be interpreted to deprive the alien's state of the right to protect or vindicate his interests in case they are injured in another state as such waiver can legally be ·m ~de:not by him but by his own state. Thus, as held

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Under the rules of international law, may an alien lawfully make such a promise (as is ~mb-Oclied in the Calvo clause)? The Commission holds that he but at the same time holds that he C8JU10t deprive the. government of his nation of its undoubted right of applying international remedies to violations of international law committed to his damage. Such government frequently has a larger interest in maintaining the principles of international law than in reoovering damage for one of its citizens in a narticular case, and manifestly such citizen cannot by contract tie in this resJ)2ct tl,o hands of his government.

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Rxclusion of Aliens The state may also avoid liability to aliens by refusing their admission, but this is not regarded as sound policy since it would provoke retaliation in kind and ultimately isolate its nationals from the rest of the international community. Conversely, it would not be advisable either if the entry of aliens were allowed indiscriminately because they might pose a danger to the welfare and especially the security of the admitting com1try. Instead of banning them altogether, therefore, or permitting their unlimited influx, the practice of most states now is to regulate the immigration and stay of aliens and to provide for their deportation whenever warranted. Arrangements may also be made, in proper cases, for the extradition of alien fugitives. n~portation is defined as "the removal of an alien out of the country, simply because his P"'~sen~e is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated, either under the laws of the country out of which he is sent, or under those of the country .t o whlch he is taken."1•a It differs from "exclusion" which is the denial "of entry to an alien.

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i::.erved: Every sovereign power has the mherent power to exclude aliens from its t.erritory upon such grounds as it may deem proper for its self-preservation or public interest (Lao Tan Bun v. Fabre, 81 Phil. 682 f1948]). The power to deport aliens is an a ct of State, an act done by or under the authority of the sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918)). It is a police measure against undesirable aliens whose continued presence in the country is found to be injurious to the public good and the domestic tranquility of the people (Forbes v. Chuoco Tiaco, et a l., 16 Phil. 534 (19101).

Extradition Extradition is the surrender of a person by one state t.o another state where he is wanted for prosecution or, if already convicted, for punishment. It differs from deportation in that it is effected at the request of the state of origin whereas deportation is the unilateral act of the local state; it is based on offenses generally committed in the state of origin whereas deportation is based on causes arising in the local state; and it calls for the return of the fugitive to the state of origin whereas an undesirable alien may be deported to a stat:e other than his own or the state of origin.

Basis of Extradition The extradition of a person is required only if there is a treaty between the state of refuge and the state of origin. In the absence of such a treaty, the local stat:e has every right to grant asylum t.o the fugitive and t.o refose to deliver him back to the latter state €ven if he iR its na.t.ional. If, notwithstanding this right, the surrender requested is still effected by the state of asylum, it is not because of a d emandable duty on its part but in pursuan!Xl 131>

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as a gesture of <.:omity. It is not unusual for states to render assist.ance to e:3.ch other in the apprehension of criminals who have fl ed their respedi"P. j11rii;;
The fundamental principles governing extradit.irm are the following: (1) Extradition is based on the consent of the state of asylum as expressed in a treaty or manifested as an act of goodwill. u (2) Under the principle of specialty, a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition treaty. 15 If he is charged with any other offerse committed before his escape, the state of refuge-and not the accused-has a right to object; nevertheless, the prosecution will be allowed if the extraditing state agrees or does not complain. (3) Any person may be extradited, whether he be a national of the requesting state, of the state of refuge or of 16 a nother state. The practice of many states now, however, is not to extradite their own nationals but to punish them under their own laws in accordance with the nationality principle of criminal jurisdiction. Noteworthy, though, is the case of Tourville, a British subject who, after murdering his wife in the Tyrol, escaped to his home in England but was extradited back t.o Austria where he was con111cted and hanged. 1·7 (4) Political and religious offP.nders are generally not subject t0 ~xtrl'lrlir.inn. Tt has been held that "in 0rrl1>r to 4 ' 1

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'f'RP.t,Tl\IE \JT OP ALI ENS

constitute a n offense of a political character, there must be two or more parties in the state, each seeking to impose 18 the government of their own choice on the other." Hence, an admitted anarchist who fled to England after bombing a Paris restaurant and a military barracks was held to be extraditable since he was considered not a political of19 fender but an enemy of all governments. But under the atteritat clause, the murder of the head of state or any member of his family is not to be regarded as a political offense for purposes of extradition. Neither, under the Genocide Convention, is the crime of genocide, which may consist of any of the following acts, committed with intent to destroy, in whole or in part, a national, eth r1ical, racial or religious group as such:

(5) In the absence of special agreement, the offense must have been committed within the territory or against the interests of the demanding state. A case in point was the extradition of one Nillins to Germany by Great Britain upon a sho,ving that he had sent from England forged bills of exchange to a Berlin company as payment for goods he had ordered and subsequently received. Although he was in England all the time, it was held that he had obtained the goods under false pretenses in Germany and was, therefore, subject to its laws.20 (6) The act for which the extradition is sought must be punishable in both the requesting and requested states under what is known as the rule of double criminality.

1. Killing members of the group. 2. Causing serious bodily or mental harm to members of the group. 3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. 4. Imposing measures intended to prevent births within the group. 5. Forcibly transfeITing children of the group to another group.

It may be added that under the Universal Declaration of Human Right.s, "Everyone has tb.e right to seek and enjoy in other countnes asylum from persecution." However, "this right may no.t be invoked in the case of prC1secutions genuinely arising from non-political crimes or from acts contrary t.o the purposes and principles of the United Nations."

ProcP-i lnrP. of Rrln ulition

If the surrender of a fugitive is sought, a request for his extradition is presented through diplomatic channels to the state of refuge. This request will be accompanied by the necessary papers relative to the identity of the wanted per son and the crime he is alleged to have committed. or of which he has already been convicted. Upon receipt of this request, the state of refuge will conduct a judicial investigation to ascertain if the crime is covered by the extradition treaty a nd if there is a prima fade case against the fugitive according to its own laws. If there is, a warrant of surrender v.1111 be drawn and the fugitive DP. r:1el5v~n~rl to the state of ori.gin.21 There have been instances when nationals of the state seeking the fugitive have abducted him in the state of refuge, as in the case of Adolf Eichmann, who was kidnaped in Argentina by Israeli agents and taken to Israel, ' 'Y~~,.r~ was subsequently executed for the murder of six.

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INTERNATIONAL L i> W

million Jews in World War II. But such acts are not allowed under international law as they constitute a violation of the territorial integrity of the state of refuge. It would be different, however, if the abduction or a rrest of the wanted individual had been effected by or wit h the help of the nationals of the state of refuge itself, as in the famous Savarkar Ca.r;e, 22 where a prisoner en route to India escaped in a French port but was apprehended by a local policeman and delivered back to the British authorities. When France later demanded. the prisoner's ret urn on the ground tha t a formal request for h is extradition should have been made, it was held th at Great Britain was under no obligation to comply. In Secretary of Justice u. Lantion, the Supreme Court originally sustained the demand of Mark J imenez to be informed of the charges against him in the U.S. request for 2 his extradition. ~ On motion for reconsideration, however, the decision was reversed, also by an 8-6 vote, on the ground that snch charges were still b~i.ng P,yalu::rted and no comolaint for
24 .

21

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Oppenheim-Laui:erpacht, 703.

" 322 SCRA 160. ' 343 SCRA 3 77.

Chapter 17

SETTLEMENT OF INTERNATIONAL DISPlTT:R~ \

ACCORDING TO KELSEN, "a dispute exists when one state claims that ano~her state should behave in a certain manner and that claim is rejected by the latter."1 An international dispute, in other words, is an actual disagreement between states rega rding the conduct to be taken by one of them for the protection or vindication of the interests of the other. Where the disagreement has not yet ripened into a full-blown conflict or the issues have not yet been sufficiently formulated and defi ned, there is what is known as a situation. A situation is, therefore, the initial stage of a dispute.

A dispute is legal if it involves justiciable rights based on law or fact susceptible of adjudication by a judicial or arbitral tribunal. An example is a conflict on the interpretation of a treaty or the ascertainment of the boundaries of adjacent states. It is political if it cannot be decided by legal processes on the basis of the substantive rules of international law because the differences of the parties spring from animosities in their mutual attitudes rather than from an antagonism of legal rights. Such would be t he case if one state, in the exercise of its sovereign rights, enacts :immigration laws discriminating against the nationals of another state over the Jatrer's prote~ts. The solution to such a dispt1te lies not in the councils of the ronrt,<:1 but in the corridors of diplomacy. ' Kelsen, 376.

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Methods of Settling Disputes Disputes are required. to be settled, conformably to one of the basic principles of the United Nations, "by peaceful means in such manner that international peace and security, and justice, are not endangered.',2 Unlike municipal law, international law has not yet been able to provide for an adequate machinery for the peaceful settlement of disagreements among states by compulsory processes binding on the contending parties, such as are available from national administrative and judicial tribunals. The closest approach in the international society to such agencies is the International Court of Justice, but its jurisdiction is not general or obligatory; indeed, its competence to act is dependent on the consent of the parties involved. A similar observation may be made even of the Security Council, wh ose powers are also markedly limited except where interna tional peace and security are endangered. In this event, its intervention may be forcibly imposed by it motu proprw, but even then its effectiveness may be hampered by disunity among the Big Five, each of which has the power of veto. As for the General Assembly, it is not only inhibited from discussing any dispute at the time under consideration by the Security Council but its rather large and politics-oriented membership gen erally prevents an objective and dispassion ate solution to an international conflict. In consequence~states have on many occasions found it necessary to settle th eir .dispute" by themselves J:Llone without regRrd to l1igher 13.nthority. Initially at least, their efforts toward this end are peaceful and sometimes even friendly, but it is not uncommon for their mutual demands to exacerbate rather than resolve their disagreements, thus le.a.ding them to employ less amicable methods to iron

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209

out their differences. In the end, where the issues dividing them ber.omP i-rreconr.i.lable, they may find it necessary to resort to the nltimate solution in the illogical arbitra.m'?nt nf WJ'IT

Amicable M~thods The amica ble methods of settling disputes are negotiation, inquiry, good offices, mediation, conciliation, arbitration, }wi.icial settlerr.ent, and resort to regional and international organizations. Except for negotiation, they all involve the participation of a third party, such as a stat.e or a prestigious statesman or jurist. These methods may also be availed of by the parties independently of the United Nations, or upon its recommendation or direction, or with its active participation. Negotia tion, which is generally the first step taken in the settlement of an international dispute, is the discussion undertaken by the parties themselves of their respective claims and counterclaims with a view to their just and orderly adjustment. The conversations may be brief or protracted, depending on the issues in contention and perhaps also on considerations of national pride. Where the talks prosper and agreement is reached, it is usually formalized in a treaty or, more directly, effected through the rectification of the injury ca used to the claimant state. Inquiry is an investigation of the points in question, on the theory that their elucidation will contribute to the solution of the differences betwoon the parties. As most dispures.; are caused by a misunderstanding of certain factual situations , their clarification by an impartiB] a nd conscientious body can limit if. not entirely remove the areas of disagreement. The findings of the party making the inquiry are not conclusive flpop the disputing states but they nevertheless may exert a $trong moral influence in the settlement of the 'conflict . ~

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Thus, in the famous Dogger Bank Case; Russian vessels fired in a fog on the English fishing fleet off Dogger Bank during the Russo-Japanese War and caused the death of two fishermen, injuries to others and considerable destruction of property. Russia maintained that the firing was due to the approach of Japanese torpedo boats, and a commission of inquiry was created to verify this claim. The finding was that there were no torpedo boats present at the time of the incident and, as a result, Russia agreed to pay £65,000 to Great Britain. Good offices is a method by which a thi_rd party attempts to bring the disputing states together in order to enable them to discuss the issues in contention and arrive at an agreement. This is usually employed when the parties are no longer on speaking terms, that is, when they have severed diplomatic relations or have actually commenced hostilities. The Russo.Japanese War, for example, was terminated through the good offices of President Theodore Roosevelt of the United States who succeeded in bringing the parties together to the conference table for the conclusion of a negotiated peace. A more active involvement than good offices 1s mediation, by means of which th~ third party does not merely provide the. opportunity for the antagonists to negotiate but also actively participates in their discussions in order to reconcile their conflicting claims and appease their feelings of resentment. 'The suggestions of the mediator are merely persuasive, however, and may hfl -r~jected without offense by the parties to the dispute. The process. of conciliation also calls for the active participation of a third party in the attempt of the disputants to settle their conflict, and the recommendations made by it are lik;;ise not binding. But unlike in media• a Scott,

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tion, the services of the conciliator are not offered by the third party but solicited by the parties in dispute. Arbitration is the solution of a dispute by an impar· tial third party, usually a tribunal created by the parties themselves under a charter known as the compromis, which will provide for, among others, the composition of the body and the manner of the selection of its members, its rules of proceedings and sometimes even the law to be applied by it, and the issues of fact or law to be resolved. Unlike in conciliation, the proceedings are essentially judicial and the award is, by previous agreement, binding on the parties to the dispute. This method is similar to judicial settlement not only in the nature of the proceedings and the binding character of the decisions but also in the fact that the disputes submitted for adjudication are legal rather than political. They differ in the following points: (1} The judicial tribunal is, ge{lerally speaking, a pre-existing and permanent body whereas the arbitral tribunal is an ad hoc body created and filled by the parties to the dispute themselves. (2} Jurisdiction in judicial settlement is usually compulsory whereas submission to arbitration is vofon· tary. (3) The law applied by the tribunal in judicial settlement is independent of the will of the parties but may be limited by them in arbitration proceedings. The judicial settlement of international disputes is now entrusted to the International C0urt of Justice, which super~'3ded the Permanent Court of T:ot.P.m::it.~onal .Justice under the defunct League of Nations. As previously noted, the jurisdiction of the Court is not compuls~ry but dependent on the agreement of the part(es~to :sµbmit.to and be bound by its decisions. Such conseht rµil:tbe-mapifested in a treaty containing -what is calied 1the'}.;.'\xfui_prpmissary

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clause," which empowers the Court to settle disputes arising from the interpretation or the application of such treaty, or through the so-called "optional jurisdiction clause" in Ai:ticle 36 of the Statute. This article provides t.hat(1) The states parties to the present Statute may at any time declare that they recognize as compulso,y ipso facto and without special agreement, in relation to any other state accept· ing the same obligation,' the jurisdictwn of the Court in all legal disputes concerning: \

The interpretation of a treaty; (b) Any question of international law; (c) The existence of any fact which, if established, would constitute a breach ofan international obligation; (d) The nature or extent of the reparation to be made for the breach ofan international obligation. (a)

(2) The declarations referred to above may be made un· conditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.

If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Cow-t., the other party may have recourse to the Security Council which may, if it deems necessary, make recomme~dations or decide upon measures to give effect to the judgment.4 This does not preclude the employment of other means directly by the other party, such as announcement of the fact of noncompliance and appeal to world opinion to persuade the losing litigant to abide by the decision. Another peaceful method of settling disputes is action by region.al organizations, which may be resorted to by the parties on their 'JWil volition or t::ik~n by the borl.y itself J3t its own instance if allowed by agreement of the members. Several such organizations now .... exist in the various re;

• U.N·. Charter, Art. 94.

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SEITL!!:MUl'I' 0f' l~rnmtri\TICNAL DISPl'TES

'J.rn

gions of the world but with varying degrees of effectiveness depending on their respective charters. One of the declared objectives of the Association of South East Asian Nations (ASEAN), for example, is "to promote peace and stability through abiding respect for justice and the rule oflaw in the relationship among c.ountries of the region anrl ::iclhP.rP.nr.P. t'=' tl1e prindples of the United Nations Charter." Hni;;.tilP. MP.t.ho(llo:

Where the pacific methods of settling disputes are unsuccessful, states sometimes find it expedient to resort to what are known as the hostile or non-amicable methods. These methods are not only unfriendly but may even involve illegal and coercive acts and are usually imposed upon weak countries by strong powers. Nevertheless, they are regarded as a mild alternative compared to war, in the sense that they may avoid the necessity of creating a more serious stare of hostilities which might not be justified by the nature of the dispute. It is still doubtful, just the same, given this practical justification, if some of these methods can be sustained in light of the principles announced in the Charter of the U nit.ed Nations. At any rate, the hostile methods of settling disputes may be classified into retorswns, reprisals and intervention. The last having been discussed already, attention will now be given to the first two. Rewrsion is any action taken in ''retaliation where the acts complained of do not constitute a legal ground of offense but are rather in the nat.me of unfriendly acts but indirectly lmrtfol t0 otb8r sta tP.s."; The ~.ct 0f retalil'\t.inn is also unfriendly but not illegal and may be in kind or of a different nature than the act that provoked it.

!--'i?.t'l'U'HB!'-~r 0 P h :rF.ntlATIOtlAL DIRPUTES

hITERN/\.Ti'")NAL LAu:

214

Examples of retorsions are severance of diplomatic or consular relations, suspension of commercial intercourse, boycott, stoppage of travel to the other state, denunciation of treaties, imposition of higher tariffs a nd other trade barriers, currency restrictions, denial of loans and withdrawal of privileges previously enjoyed, recognition of a rival government, and adverse propaganda. Reprisals, on the other hand, "are an act of self-help on the part of the mjured state, responding after an unsatisfied de.ma.nd to an act contrary to international law on the part of the offending state. They have the effect of suspending momentarily in the relations of the two states the observance of this or that rule of international law. They are linrited by the experience of humanity and the rules of good faith, applicable in the relation of state with state. They would be illegal if a previous act contrary to international law had rwt furnished the reason for them. They aim to impose on the offending state reparation for the offense or the return to legality in avoidance of new offenses.',6 1 In the Naulilaa Incident Arbitraiion, it appeared that during World War I a party of German officials and officers crossed into the neutral Portuguese colony of Angola to discuss the purchase of food supplies from the Portuguese. Due to a misunderstanding caused by language difficulties, a n altercation arose during the discussion as a result of which three of the Germans were killed and another one was interned by the Portuguese. The German authorities did not communicate with the Portuguese government but in alleged reprisal German troops later attacked and destroyed certain forts and posts in Angola. When the matter was subsequently submitted to arbitra::!.

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tion, it was held that the death of the Germans at Naulilaa "was not the consequence of acts contrary to international 1aw imputable to either German or Portuguese authorities, either civit· or military," but was purely fortui tous, being the result of misunderstanding and "of a certain impudence" on the part of the German officials. Adding that "there h as been evide nt disproportion between the incident of Naulilaa and the six acts of reprisals which followed it," the tnbunal concluded that the reprisals were unlawful '1.n view of the lack of sufficient occasion, of previous demand and of admissible proportion between the alleged offense and the reprisals taken." Among the more common forms of reprisals are display of force , as when the U.S. Mediterranean Fleet proceeded to and deployed along the coasts of Turkey in 1903 pending compliance with the demand for the return of an American national kidnaped by a Turkish bandit; occupation of territory, as when Italy seized the Greek island of Corfu in 1923 for the murder of certain Italian officers in Greece; embargo, or the detention by the state seeking redress of the vessels of the offending state or its nationals, whether such vessels are found in the territory of the former or on the high seas, as illustrated by the action taken by Holland against Venezuela in 1908; and pacific blockade, by which the vessels of the offending state are prevented from entering or leaving its ports by the ships of the state seelcing redress, as wa.s donA hy the Great Powers against Greece in 1886 tn djssu:ride it frf"lTP going to war against Turkey.

The United Nations In the event that none of the above-discussed methods succeeds in settling the dispute, or even if they are not employed, the .United Nations may be asked or may decide on.its own authority to take a·hand in.its settlement. This j 41

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SETTLEMENT OF

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21B

task is addressed principally to the Security Council but may, when the occasion requires, be taken over by the General Assembly under conditions to be noted shortly. The Security Council shall have jurisdiction to intervene in: (a) all disputes affecting international peace and security;!; and (b) all disputes which, although coming under the "domestic jurisdiction clause,t' have been submit9 ted to it by the parties for settlement. Such disputes may l)e brought to it by: 0 (1) The Security Council itself, on its own motion. ' 11

The General Assembly. 12 (3) The Secretary-General. (4) Any Member of the United Nations.'~ (5) Any party to the dispute, provided that in the case of non Members of the United Nations, they should accept in advance, for the purposes of the dispute, the 1 obligations of pacific settlement under the Charter. • The Charter of the United Nations provides that the Security Council shall, in the first instance, when it deems it necessary, call on the parties to settle the rtispute by any 15 peaceful means in their own choice. In case they a.re unable to adjust their differences by themselves through the peaceful methods suggested, the Security Council may reconunend appropriate measures or methods of adjustment, taking into consideration: (a) any amicable measures already adopted by the parties; and (b) (2)

________ __ ,,

Ibid., Arts. 24, M. Ibid.: Art. 2. 10 Ibid., Art. 39. 11 • Ibid., Arts. 10, 11. 1 !Ibi.d., Art. 99. ~ 1' Ibid., Art. 35. · 1 • ~ ibid. Arts. 35, 37. , Hf Ibid., Art. 33. 5

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that legal disputes should as a rule be referred to th~ International Court of ,J ustice. 16 If these measures also prove unavailing, then the Security Council may recommend such actual terms of settlement as it may consider appropriate. 11 This last step is in the nature of a compulsory settlement of the dispute which the parties are under obligation to abide by in the interest of international peace and security. Finally, where the terms of settlement are rejected by any of the parties, the Security Council is empowered to take more drastic steps, to wit(1) In the first instance, it may adopt such measures not involving the use of armed force, such as complete or partial interruption of economic relations and of rail, sea air, postal, telegraphic, radio and other means of communication, and severance of diplomatic relations. ts This is known as preventive action. (2) Should it consider that such measures would be or have proved inadequate, it may then take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security. Such action may indude demonstrations, blockades, and other operations by air, sea, or land forces of members of the United Nations.19 This is known as enforcement action. To enable the United Nations to take urgent military measures, members shall hold immediately available national air-force contingents for combined international enforcement action. 'The strength and degree of readiness of these contingents and plans for their combined action shall be determined, within. the limits laid down in the 16

lbid., Art. 36. "[bid., Art. 36. ,a Ibid., Art. 41. 19 Ibid.,~· 41.

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special agreement or agreements r eforred to in Arbcle 34, by the Security Council with the assistance of the Military Staff Committee.20 The Military Staff Committee consists of the chiefs of staff of the permanent members of the Security Council or their representatives. It is supposed to advise and assist the Security Council on all questions relating to its military requirements for the maintenance of international peace and security, the. employment and conunand of forces placed at its disposal, the regulation of armaments, and possible disarmament. It shall also be responsible under th e Security Council for the strategic direcb on of any armed 21 forces placed at the disposal of the said Council. Some of the conflicts in which the Security Council has intervened in the exercise of its peace-keeping functions are those involving Palestine a nd Israel in 1948, India and Pakistan on the Kashmir case in the same year, Indonesia and the Netherlands in 1948 and 1949, North and South Kor ea in 1950, the Congolese Republic an d the Katangans in 1960, Britain, France and Israel against Egypt on the Suez Canal in 1956, and the Middle East war between the J ews and the Arabs. .,. There is always the possibility that failure of unity among the Big Five will render the Security Council impotent in the solution of international disputes. As previously observed , the veto cast by any of the permanent members will prevent agreement on this matter. Recognizing this, the General Assembly adopted in 1950 the "Uniting for Peace Resolution," which provides thet "if the Secwi.ty Council, beca use of lack of unanirnity of the permanent members, fails to exercise its primary responsibility for the maintenance of peace and security in any case o/.here there

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appears to be threat to the peace, breach of peace, or act of aggression, the General Assembly shall cons ider the matter immediately with a view to making recorrunendations to the members for collective miasures, including in the case of breach of the peace or act of aggression, the use of armed forces when necessary, to maintain or restore international peace and security." If not in session at the time, the General Assembly .may meet in emergency special session within twenty-four hours of the request therefor either by any nine members of the Security Council or by a majority of the members of the United Nations. Conformably to this resolution, the General Assembly on November 4, 1956, provided for the establishment of an int.ernational "police force" under the United Nations command to s upervise the area involved in the Suez Canal crisis, in which two of the permanent members of t},p S\P.-

curity Council were directly involved. In recommendfog snr.h action. the S':'<'.rP.t.siry-General had thA following to say: Functioning as it would on the basis of the terms of the resolution 'Uniting for Pea ce,' the Force, if establishe
The invasio~ c;,f Iraq by the combined forces of the and Australia provoked world-wide United States, Britain l • ' _ _ __

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protests led by France, Russia and China, all members of the Big Five. They contended that the attack was done without authorization from the Security Council which wanted to give the UN ins pection team more time to look for the weapons of mass destruction that US President George W. Bush insisted the Iraqi government was concealing. Unable to get UN permission, the United States nevertheless began bombarding Iraq, invoking an earlier inconclusive resolution of the Security Council adopted after the terrorist attacks in his country on September 11, 2002. The consensus in legal quarters dismissed such resolution and held that the United States needed another resolution categorically calling for armed sanction against Iraq. The Iraqi crisis has raised questions about the effectiveness of the Security Council in maintai11ing international peace and security and the practical value of the rule requiring t he unanimity of the Big Five in deciding non-procedural questions. The threatened veto by France of the US proposal for the immediate invasion of Iraq caused the United States to "go it aJ')ne" and may have demonstrated the :impotence of the United Nations in enforcing t}u~ purposes Elnrl principlef r1P.fined in its (;h::i.r ter.

(;hApter 18 WAR

THERE IS NO UNANIMITY among writers on international law as to the meaning or concept of war, some saying it is a specific action while others assert it is merely a specific status. Viewed in the former sense, war may be defined as an 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. In the latter sense, war may exist even without the use of force, as when one state fonnally 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. It has already been observed that the employment of force by one state against another does not necessarily result in war, e.g., in the case of reprisals like a pacific blockade. On the other hand, it should be remembered that when several Latin-American countries declared war against Germany during World War II, a state of war was deemed existing between the parties notwithstanding that force was never resorted to in their mutual dealings. Kelsen suggests that "like any fact to which international law attaches certain consequences, the fact 'war' mnst be ascert~ined by the competent authorities. As long as no objective authority is established, it is for the statP.s concerned to ascertain the existence of the fact 'war' in the international sense. "1 I

Kelsen,. 25-27.

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OutlRwry of War War was originally accepted as a legitimate means of compulsion, provided, according to some writers, that it was a reaction to an international delict, i.e., it was a just war or bellum justum. Nevertheless, abhorrence of the widespread suffering it has caused through the ages has inspired many attempts to suppress it, notably in recent times the Covenant .of the League of N ations, the KelloggBriand Pa c~ of 1928, otherwise known as the General Treaty for the Renunciation of War, and the Cha rter of the United Nations. However, the first two agreements were not very effective because they expressly provided for certain exceptions when war could be lawfully waged. By contrast, the Charter of the United Nations is categorically committed to t he outlawry of war. Its preamble begins with a declaration that the Organization is "determined to save succeeding generations from the scourge of war which twice in our lifetime has brought untold sorrow to mankind." Toward this end, a ll members are called upon to abstain from the use of force in the solu. tion of international differences and to see to it that even non-members comply with its declared principles "so far as may be necessary for the maintenance of international peace and security." In only two instances is the use of force a llowed, to wit, in the exercise of the inhe1·ent right of self-defense under conditions prescribed in Article 51 and in pursuance of the so-called enforcement action that m~y be decreed by thP: 8Acu"ri.tv Couri~H ,mdel'.' Art.icle 1~

Laws of War Despite the formal .rejection of war, it is a fact of international life that it has not yet been completely abolished as a m eans 0£,solving disputes among nations. It is, therefore, necessarY, to know the more important laws of

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war that are supposed to be observed in the conduct of armed hostilities . Among these are the following: (1) The Declaration of Paris of 1856, conceming wa:tfare at sea.

(2) The Hague Convention s of 1899, concerning the use of expanding bullets and asphyxiating gases. (3) The Hague Conventions of 1907, concerning the opening of hostilities; the laws and customs of warfare on land; conversion of merchant ships into warships; the laying of automatic submarine contact mines; naval bombardment in times of war; the exercise of the right of capture in naval warfare; the dischal'ge of projectiles from balloons; the adaptation to maritime watfare of the rules of the Geneva Convention of 1864 relative to the treatment of the wounded in land warfare; the rights and duties of neutrals in land warfare; and the rights and duties of neutrals in naval warfare. (4) The Geneva Convention of 1925, concerning the use of asphyxiating, poisonous and other gases and of bacteriological methods of warfare.

(5) The Geneva Convention of 1929, concerning the treatment of the sick and wounded and of prisoners of war. (6) The Declaration of London of 1936, concerning the use of submarines against merchant vessels. (7) The Geneva Convention of 1949, concerning the amelioration of the sick and wounded on land; the amelioration of the sick and wounded and of shipwrecked members of the armed forces at sea; the treatment of prisoners of war; ~.11.d the protection of civilian persons in war. 2 (8) 'J'hA Nncleiir Nonrroljfet:'ation Treaty, How are these agreements enforced? The commonly accepted sanctions are: (a) protest lodged by on~ belligerent, usually accompanied or followed by an ~appeal to 2

Kelsen, 65-66.

WAR

world opinion against the unlawful acts of warfare committed by the other belligerent; (b) reparation for damages caused by the defeated belligerent; and (c) punishment of war criminals. Reprisals are often mentioned as a fourth sanction, but it is doubtful if they can be justified at present in~smuch as they are ess~nti~lly unlawful acts taken by one belligerent. l'lg::linst the also illegal acts 0ft.b':.' 0Hu~r

Third states are governed by the laws of neutrality in their dealings with the belligerents. (2) Diplomatic and consular relations between the belligerents are terminated and their respective represen tatives are allowed to return to their own countries. (3) Treaties of a political nature, such as treaties of alliance, are automatically canceled, but those which are precisely intended to operate during war, such as one regulating the conduct of hostilities between the parties, are activated Multipartite treaties dealing with technical or administrative matters, like postal conventions, are deemed merely suspended as between the belligerents. ( 4) Individuals are impressed with enemy character: (a) under the nationality test, if they are nationals of the other belligerent, wherever they may be; (b) under the domiciliary test, if they are domiciled aliens in the territory of the other belligerent, on the assumption that they contribute to its economic resources; and (c) under the activities test, if, being foreigners, they nevertheless participate in the hostilities in favor of the other belligerent. Corporations and other juridical persons, on the other hand, are regarded as enemies if a majority or a substantial portion of their capital stock is in the hands of enemy nationals or if they have incorporated in the territory or under the laws of the other belligerent. (5) Enemy pu.hlic property found in the territory of the other belligerent at the outbreak of hostilities is, with certain exceptions, subject to confiscation. Enemy private property may be sequestered, subject to return, reimbursement or other disposition after the war in accordance with the treaty of peace.

Commen~Pme nt of War

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The Hague Conven\ions of 1907 provide that hostilities "must not commence without a previous and explicit warning, in the form either of a r easoned declaration of war or of an ultimatum with · conditional declaration.',;i War is supposed to commence on the date specified in the declaration or on the date it is communicated to the en~ emy. However, this formality is often not observed, as evidenced by the number of wars tha t have broken out without the "previous and explicit warning" required, e.g., the surprise attack on Pearl Harbor by the Japanese in 1941. In such cases, the rule is that war is supposed to commence from the moment of the first act of force committed by one state with mtent of making war or commit~ ted without such intent but considered by the other state as constituting war. Thus, war may start with a declaration of war, with the rejection of an ultin).atum, or with the commission of an act of force regarii.ed' by at least one of the belligerents as an a.ct of war.

Effects of the Out.break of \Var The outbreak of war produces the following genernl effects: (1) The laws of peace cease to regulate the relations of the belligerents and are supersed,ed by the laws of war. s Hague Convi~tion III,

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l NTERf-Jp·imNAT. LAW

Technically, combatants are those who engage directly in the hostilities while non-combatants are those who do not. Unfortunately, this distinction has been blurred by the methods of modern warfare, owing largely to the increased destructive power of the new weapons, like the intercontinental ballistic missiles, and the activities of many persons who, while not attached to the armed forces, perform seryices essential to the war eff01-t. In clear cases, of course, and whenever p_ossible, non-combatants should not be subjected to attack as they are not supposed to participate in the actual fighting. Only the combatants may lawfully wage war and are thus subject to direct attack from the enemy. The following are regarded as combatants: (1) The members of the armed forces, whether per taining to the army, the navy or the air force, except those not actively engaged in combat, such as chaplains and medical personnel. (2) The irregular forces, such as the francs tireurs or the guerrillas, provided, that: (a) they are corrunanded by a person responsible for his subordinates; (b) they wear a fixed distinctive sign recognizable at a distance; (c) they can-y arms openly; and (d) they conduct their operations in accordance with the laws and customs of war. (3) The inhabitants of unoccupied territory who, on approach of the enemy, spontaneously take arms to resist the invading troops wi.th0ut having bad time to orgari.ize themselves, provided only th.8.t they can-y :\rms openly and observe the laws and customs of war. This is often i·eferred to as a levee en masse. (4) The officers and crew of merchant vessels who forcibly resist attack.

227

When captured, combatants are entitled to treatment as prisoners of war, which includes inter alia the rights to be accorded the proper respect commensurate with their rank, to adequate food and clothing, to safe and sanitary qua1-ters, to medical assistance," to refuse to give military information or render military service against their own state, and to communicate with their families. Noncombatants do not enjoy identical rights when captured but are nevertheless protected from inhumane treatment under the Geneva Convention of 1949 relative to the treatment of civilian persons in time of war. C:ondu~t of the Hostilities

Three basic principles underlie the rules of warfare: the principle of military necessity, the principle of humanity, and the principle of chivalry. Under the first p1inciple, the 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. It was this principle that was invoked to justify the atom bombing of Hiroshima and Nagasaki, the argument being that more lives would have been lost if this drastic measure had not been taken and an American invasion of the Japanese mainland had been attempted. Such other measures as sieges, blockades, bombardments~ and devastation of property, which may involve direct hardships on the non-combatants within the ar~a ~.ffected, are und?.rtaken under this principle. The second principle prohibit~ t.b':' USP. of any measu1·P. that is not absolutely necessary for the purposes of the war, such as the poisoning of wells and weapons, the em· ployment of dumdum 01· expanding bullets and asphyxiating gases, the desti1.1ction of works of art and property devoted to r~ij&J.ciu.s or humanitarian purposes, the born-

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lNTERNA1'IONAL LAW

barding of undefended places, and attack of hospital ships. When an enemy vessel is sunk, the other belligerent must see to the safety of the persons on board. Pillage is prohibited. The wounded and the sick must be humanely treated without distinction of nationality by the belligerent in whose power they are. The rule that a combatant who surrenders may not be killed and the agreements relating to the treatment of prisoners of war also fall under this principle. The principle of chivalry is the 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 the .hostilities. Ruses and stratagems of war are allowed provided they do not involve the employment of treacherous methods, such as the illegal use of Red Cross emblems to throw the enemy off-guard prior to an attack. In this connection, false flags are not allowed in land warlare, but war vessels may sail under a flag not their own, subject only to the requirement that they haul it down and hoist their own flag before attacking the other belligerent. Espionage also is prohibited under iptemational law notwithstanding that the practice involves deceit. An individual can only be considered a spy if: acting clandestinely or under false pretenses, he obtains, Ol' seeks to obtain, information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.4 Scouts, or soldiers in uniform who penetrate the zone of operations of a hostile army to obtain information, are not spies and, when captured, should be treated as prii;:oners ofwar.6 Spi.es are subjed t:o the municipal law of the other belligerent except that, as provided in the Hague Conventions of 1907, "a spy· taken in the act cannot be

W AH

punished without previous trial.',<; A spj· who succeeds in rejoining his a1my and is later captured i.ncurs no responsibility for his previous acts of esoiona~e and is entitled to hP. t.rP.::.t.P.rl

Ft~ A

pri~onP.r ofw::.T 1

Kinds of Warfare

•..

Warfare may be waged on land or sea or in the air, separately or simultaneously. The traditional methods of waging war have been modified considerably by the advent of modern developments in naval warfare and, particularly, in aerial warfare, which played a major role in the last two World Wars. Most of the rules on ae1;a1 warfare have become ob· solete and need to be revised to make them confonn to present realities. For instance, the Hague Conventions of 1899 prohibited "for a term of five years, the launching of projectiles and explosives from balloons or by other new methods of a similar nature.,,s AB for naval warfare, the most serious difficulties he in the disagreement among states as to whether armed merchant vessels are subject to direct attack and the gen eral violation of the rules against the laying of unanchored mines and the misuse of submarines and torpedoes. The rules on land warlare have remained substantially unal~ tered and deal generally with the treatment of combatants on the battlefield and the obligations incumbent on the troops making an attack, siege or bombardment. One important rule is that booty, or personal property found in the battlefield, is su~iect to confiscation hy the belligerent stRt":' i:-x~':'pt f:'T~ly the personal belonJrings of the individual

6

• Hague Convention No.JV, 1907, Regulation, Art. 29. b Ibid. ·l,'11· i - i

229

Ibid., Art. 30. Ibid., Art. 31. 8 Wilson and Tucker, 288.

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comhatimts ,vhich have no mili.ta:r.y value, such as

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The theatre of war is the place where the hostilities are actually conducted, as distinguished from the region of war, which is th e greater area where the belligerents may lawfully engage each other. This would comprise their own territories and the open seas, excluding only neutral territories. Belligere nt O~cupation One of the usual incidents of war is the occupation of hostile territory by a belligerent that exercises a uthority over it until its forces voluntarily withdraw or are expelled by the enemy. Territory is deemed occupied when it 1s 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. Nevertheless, it is not necessary that every square foot of the territory in question be actually occupied, as it doubtless suffices that the occupying army can, wi thin a reasonable time, send detachment of troops to make its 10 authority felt within the occupied district. Belligerent occupation does not result in transfer or suspension of the sovereignty of the legitimate govern ment although it may at the moment be unable to exercise it." Hence, the belligP-rent occupant cannot perform such acts as declaring the in dependence of the occ1.1pied r.errito:ry or requirin !{ it::- -inh~hi.t.ants to renounce t.heir al1~giance to the lawful government. In the administration of occupied territory, the belHgerent is r~q?ir?~ to restore and ensure public order and ,: .; ··f ~ i:·i }- , r:-t :U- !'. .. #)'tc.

,1

9

Geneva Conv~ntion, 1949, Arts. 16-17. - ;w Hyde, Vol. 2, 364.

· ltLa~u:elt'v. Misa, 44 O.G. 1176. '

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231

safety while respecting, unless absolutely prevented, the laws in force in the country. This is particularly true with regard to family honor and rights, the lives of persons, private property, and religious convictions and practice.12 But whenever necessary, the belligerent occupant may promulgate new laws, non-political as well as political, provided they do not contravene the generally accepted principles of international law. The political laws are automatically abrogated upon the end of the occupation but the non-political laws may continue even beyond the occupation unless they are expressly repealed or modified by the legitimate government. 13 Thus, after the J apanese occupation of the Philippines, General Douglas Mac.Arthur issued a proclamation declaring null and void all laws, regulations and processes of the enemy occupant.

In addition, the occupant is permitted to exact from the populace contributions over a nd above the regular taxes for the needs of the army of occupation or for the administration of the territory. 14 lt may also, for valuable consideration, make requisitions of things or services (excluding military) for the needs of the occupying forces.15 No general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively respons1"ble.16

It is pennitted for the belligerent occupant to intTOduce military currency, provided the purpos8 ii; not to debase the country's economy. Thus, in Haw Pia v. China

12

Hague Convention No. IV, 1907, Regulations, Arts. 43, 46. Hilado v. De la Costa, G.R. No. L-150, April 30, 1949. 14 Hague Convention No. IV, 1907, Reg.;, A.t;ts. 49-51. 11 Ibid., Art. 52. I ~ . " Ibid., Art. 50. .

13

Banking Corporation/ our Supreme Court upheld the

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WAR

l Nll<~RNATlONAL 1,A \,\i

232

validity of the payments made by the plaintiff in J apanese military notes to settle a loan extended to her in Philippine currency before the outbreak of the Pacific war. Private property cannot be confiscated, but those susceptible of military use may be seized, subject t.o restora18 tion or compensation when peace is made. The property of municipalities and of institutions dedicated to religion, charity and education, and the arts and sciences, even when state-ovvned, shall be treated as private property, 19 and their des~ction is expressly forbidden. On the other hand, the army of occupation can only take possession of cash, funds and realizable securities which are strictly the property of the state, depots of arms, means of transport, stores and supplies, and generally movable property belonging t.o the state which may be 20 used for military operations. All appliances, whether on la nd, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of anns and generally all kinds of ammunition of war may be seized but must be 21 restored and compensation fixed when peace is made. Finally, the occupying state shall be regarded only as administrator a nd usufructua ry of public buildings, real estate, forests, agricultural estates belonging t.o the hostile state and situated in the occupied territory.22 This rule was applied by our Supreme Court in Banaag v. Singson Encarnacion,23 where a lease for five yi;!ars grante
18

2()

233

municipal fisheries was deemed automatically canceled upon the re-establishment ,:,f t.he C.alth govern mP.nt..

Postliminium The right of postliminy, or postliminium, says Vattel, "is that in which persons or thjngs taken by the enemy are restored to the former state on coming actually into the power of the nation to which they belong."24 In its present broadened concept, the jus postliminium now also imports the reinstatement of the authority of the displaced government once control of the enemy is lost over the territory affected. Thus, upon the end of a belligerent occupation , the laws of the re-established government are revived and all acts taken by the belligerent occupant which it could not legally do under the law of nations, as well as lawful acts of a political complexion, are invalidated. To illustrate, if private land belonging to X is confiscated by the enemy occupant and sold t.o Y, X can recover the property after the occupation without having to pay Y the purchase price. The reason is that Y never acquired valid title from. the enemy occupant as the confiscation was illegal. On the other hand, taxes collected by the occupation government cannot again be demanded by the legitimate fOVP,rnment upon its restoration, as it was within the lawful competence of the enemy to impose and collect 26 taxes while its occupation of the territory was effective. By the same token, non-political acts performed during the occupation, like a decree of divor~ or a judgment for recovery of a debt, remain valid even after the occupatioT1; but acts of a political character, ~·.1 r:h ~~ A mnvir.tion for a

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284

LAW

crime against the occupying forces, autom?.hi::ally 10s~ 26 t.hP.ir v~lirlit.y •.1pon the end of the oc{'npation.

Non-Hostile Intercourse Even in time of war, there are certain relations between the belligerents which are not strictly hostile. Among these are the following: Afiag of truce is a white flag carried by an individual authorized by pne belligerent to enter into communications with the other. The bearer, or parl.ementaire, is entitled to inviolability as long as he does not take advantage of his privileged positio11 to commit an act of treache:cy. However, the other belligerent is not obliged to receive a 27 flag of truce. Cartels are agreements to regulate intercourse during war on such matters as postal and telegraphic communication, the reception of flags of truce, and the exchange of prisoners. A cartel ship is a vessel sailing under a safe-conduct for the purpose of carrying exchanged prisoners of war. 28 A passport is a written permission given by the belligerent government or its authorized agent to the subjects of the enemy state to travel generally in belligerent tenitory. 29 A safe-conduct is a pass given to an enemy subject or to an enemy vessel allowing passage between defined points. This is given either by the belligerent government or by the commander of the area within whi~h it. i~ P.ffi:>r.~-i11P SO

26

Peralta vs. Director of Prisons, 75 Phil. 285. Hague Convention No. IV, 1907, Regulation, Arts. 32, 34; Fenwick, 578; Wilson and Tucker, 294. 28 Fenwick, 575; Wilson and Tucker, 295. ~ Wilson and Tucker, 295 . • ~ 3) Ibid. . 21

t

WAR

9.~F.

A safeguard is a protection granted by a commanding officer either to enemy persons or property within his command. When it is enforced by a detail of men, they must use extreme measures, if necessary to fulfill their trust, and are themselves exempt from attack or capture by the enemy. A lu:ense to tra,de is a permission given by the competent authority to individuals to can-yon trade even though there is a state or war. A general license grants to all the subjer,ts of th~ enemy stat,e or t() all its own snbjects the right to trade in specified places or in specified articles. A special license grants to a certain person the 1ight to trade in the manner specified in his license.3i

Suspension of Hostilities A suspension of arms is a temporary cessation of the hostilities by agreement of the local commanders for such purposes as the gathering of the wounded and the burial of the dead. 32 An armistice is the suspension of all hostilities within a certain area (local) or in the entire region of the war (general) agreed upon by the belligerent governments, usually for the purpose of arranging the terms of the peace. For example, a general armistice preceded the ternunation of World War I with the surrender of Germany and its allies. The distinctions between armistice and suspension of arms fil"e as follows: (a) the purposf' of armistice is political whilP. that of suspPnsion of ann.s is military; (h) the fonm~r may be concluded only by the commanders-in-chief of the beyigerent governments while the latter may be agreed

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236

upon by the local commanders; (c) the former is usually in 33 writing while the latter may be oral. A cease-fire is an unconditional stoppage of hostilities by order of an international body like the U.N. Security Council for the purpose of employing peaceful 34means of settling the differences between the belligerents. A truce is sometimes used interchangeably with armistice but is now generally regarded as a cease-fire with 85

conditions attached. A capitulation is the surrender of military forces, places or districts in accordfince with the rules of military 36

honor.

Termination of War War m~y be terminated by simple cessation of hostilities, by the conclusion of a negotiated treaty of peace, or by the defeat of one of the belligerents followed by a dictated treaty of peace or annexation of the conquered country. Among the wars that were terminated by simple cessation of hostilities are those between Sweden and Poland in 1716, between France and Spain in 1720, between Spain and its American colonies in 1825, and between France and Mexico in 1862-67-.. Under this method, property or territory in the possession of the respective belligerents upon the termination of the war is retained by them in accordance v,rith the principle of uti possidetis. This is to be ilistinguished from th~ u$ual stipul~tion for the .<:tatus quo ante, ,-.hie}, calls for the complete ref:.toration to their former owners of property or territory that may have

j ..~: Oppenheim-Lauterpaclit , 550. 3 • Salonga and Yap, 451,#p~. ss Fenwick, 579. · ,. ~ , St • d r'
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changed hands during the hostilities, with the exception only of prize and booty. At times, the belligerents may be unable to effect a decisive victory against each other and may decide finally to settle their disagreement in what is known as a negotiated treaty of peace. Such was the case with Great Britain and the United States when they terminated the Wru: of 1812 with the conclusion of the Treaty of Ghent. Finally, the war may be terminated by the defeat of one of the belligerents, which surrenders either condition· ally or unconditionally. In the former case, a treaty of peace is concluded embodying the conditions specified in the surrender; in the latter, the vict01ious belligerent usually issues a unilateral declaration announcing the end of the war, to be followed with a peace treaty dictated by it and specifying the rules on the settlement of the obligations of the vanquished state and the disposition of its territories. However, it is not possible always to conclude a peace treaty of this nature because the defeated belligerent may cease to have any legal standing or existence, as happened when the Southern Confederacy was simply absorbed by and again became a part of the United States after the American civil war. War is supposed to end with the re-establishment of peace but the precise date is not easily fixed in view of the different methods of terminating the state of hostilities. In the interest at least of the neutrals, it is certainly desirable that a formal proclamation or treaty of peace indkate the ex::ict d9t;e of the tennin~.tion of the wru-. Ewm !;O, con· fusion may still arise from the municipal viewpoint, as· illustrated by the apparently conflicting decisions ren- dered by our Supreme Court in connection with the interpretation of certain private contracts calling for the deof obligations after the. end of the war._:' l.:,, . : !r. -~.. .mandability ~

238

Th'TERNATIONAL

T,AW

Thus, it has been held that the last war ended with the signing of the treaty of surrender by the Japanese 37 Armed Forces at Tokyo Bay on September 2, 1945, with the official proclamation of peace terminating the Greater 38 East Asia War on December 31, 1946, with the signing of 39 the San Francisco Peace Treaty on September 8, 1951; and with the ratification of the Treaty of Peace conduding 40 the Greater East Asia War on April 28, 1952. In these cases, it mu~t. bP. st.rP.ssed, determination of the date 0f the end of the war was·'m ade in light of the intent of the parties as manifested in their contracts.

Aftermath of War One of the inevitable consequences of wai· is the implied judgment, right or wrong, that the vanquished belligerent is the guilty party in the dispute that caused the hostilities. The treaty of peace imposed by the victor upon the defeated state is regarded as a punishment and is sustamed on that ground although marked by the vice of duress that normally would invalidate other agreements. The "sentence" thus rendered, with the active if reluctant acquiescence of the vanquished state, will impute to it responsibility for the war and compel. it to acknowledge the obligation to pay reparations for injuri~s and. losses suffered by the victorious state. In addition, nationals of the vanquished state may be protected and punished as war criminals and for other violations of international law. In these actions, they may not escape responsibility on the ground that they were merely acting on orders of their state. The state itself is

1-

,

·a7 Arellano v. Domingo, G.R. No. L-8679, July 26, 1957. a~.~ avarro v. Barredo, G.R. No. 8660, May 21, 1956. ~3°' . . ~ "' M ercado v. Punzalan, G.R. No. L-8366, April 27, 1956. -~.~,is.rev. Imperial, G.R. No. L-7906, Oct. 22, 1957.

289

WAR

liable for issuing such orders and the individu<'ls for obeying them provided a moral choice was possible. Following are the Principles of the Nuremberg Char t.P.r Ano ,Jm)gT11fmt.: I.

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable fo1· punishment.

H. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under intemational law. III. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law. I\'.

The fact that a person acted pursuant to orders of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. V. Any person charged with a crime under international law Las ~he right to a fair trial on the facts and law. \'I. The crimes hereinafter set out are punishable as crimes under international law: a. Crimes against peace; (i) Pianning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplislunent of any of the acts mentioned under (i). b. War crimes; ViolRtioPs of the law or customs of war which include, but are not limited to, mu1der, ill-treatment or d~· portation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoner_s of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction O'fzciJies~ towns or v:illages, or devastation not justified by.~ r y necessity. • Jt •

•

•

240

li'iTERNATIONAl. LAW

WAH

c. Crimes agamst humanity; Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecution on political, racial or religious grounds, when such acts are done or in connection vvith any crime against peace or any war crime. VIL

Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

In Yamashita v. Styert the Commanding General of the Imperial Japanese Forces in the Philippines was convicted of war atrocities by a military commission and sentenced to death by hanging. He questioned his trial and COP.viction on the ground that the military co:rnmii:i.sion had no r uthority tJr jurisdicfrm to try him, but. thP. sentence was affirmed by the Philippine Supreme Court and later by the U.S. Supreme Court. The latter court declared inter

alia as follows: It is not denied that such acts directed against the civilian population of an occupied country and against prisoners of war are 1·ecognized in international law as violations of the law of war. Articles 4, 28, 46, and 74, Annex to Fourth Hague Convention, 1907, 36 Stat. 2277, 2296, 2306, 2307. But it is urged that the charge does not allege that petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged as against him. But this overlooks the fact that the gist of the charge is an unlawful b1·each of duty by petitioner as an army commander to control the operations of the members of his command by 'permitting them to commit' the extensive and wid~spread atrcdties specified. The question then is whetl1er the law flf w~r ;J:TII"'!:'':'e •:m any army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of tlie law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his ., 75 Phi}. 563.

~

241

failure to take such measures when violations result. That this was the precise issue to be tried was made clear by the statement of the pros()cutic,n at the opening of the trial. It is evident that the conduct of military operations by troops whose excess~s are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it i.s the purpose of the law of war to prevent. Its purpose to protect civilian population and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence, the law of wa1· presupposes that its violation is to be avoided through. tli.e control of the operations of war by commanders who :::irn t.o !';OmP. P.irt,;,111. r':'ep-:m~ibl-? for their subordinates.

NEl."J'IH,1. f'I'Y

Chanter 19

21a

wAr, this so-calJP.rl police ad;ion ha." drasti~Rlly rvised. the traditional understanding of neutrality.

NEUTRALITY

Ne utrality and Neutralization A STATE is said to be neutral if it does not take part, directly or indirectly, in a war between other states. If recognized by the belligerents, this condition gives rise to rights a nd obligations between them and the neutral state in their mutual relations . The meaning of neutrality, which is a relatively new development in international law, has undergone radical transformation during the recent past, particularly the last two World Wars. For instance, such concepts as imperfect neutrality and qualified neutrality, which were accepted before, have now become obsolete. The general policy at present is to recognize only perfect or absolute neutrality, which imports that the third state does not take sides in any way whatsoever when other states are at war. Strict adherence to this view has becom e hardly practicable, however, if not impossible. Regrettably, the techniques of modern warfare and advances in internation al commerce h ave inextricably involved third states in the hostilities, often against their will. Moreover, the compulsions of present-day international politics make it difficult for n ations to mfilntain a strictly impartiat attitude in the face of i::onflids t.hat, a !though they m~.v not be actually parties thereto, will unavoidably affect their own future and security. No less significant are the provisions of the ·U.N. Charter which obligate member-states to participate in enforcement action in cases of threat to or actual breach of the peace of the world. While technically not regarded as ~~

242

Neutrality must be distinguished from neutralization. While the former is dependent solely on the attitude of the neutral state, which is free to join any of the belligerents any time it sees fit, the latter is the result of a treaty wherein the duration and the other conditions of the neutralization are agreed upon by the neutralized state and other powers. This agreement governs the conduct of the signatories whereas neutrality is governed by the general law of nations. Neutrality, moreover, obtains only during war while neutralization is intended to operate in time of peace as well as in time of war. Finally, only states may become neutral but portions of states, like islands, rivers and canals, may be neutralized. L::n.v!.: of Ntmtrality

The mo1·e important rules on neutrality a re found in the customary law of nations and in such conventions as the Df'claration of Paris of 1856, the Hague Conventions of 1907, and tbe unrat.ified Declaration 0f London of 1909. 'l'hese rufoe define: taJ the relations of the belligerent states with the neutral state; and (b) the relations of the belligerent states with the nationals of the neutral state. Relat~ons of Belligerent States and Neutral States

Generally speaking, a neutral state has the right and duty to abstain from taking part in the hostilities and from giving assistance to_either belligerent; to prevent its territory and other resources from being used in the conduct of hostilities by the bE'µligerents, and to acquiesce in certain II

., f

restrictions and limitations that the belligerents may find necessary to impose, especially in connection with interna1

tional commerce. The belligerents, on the other hand, are bound to respect the status of the neutral state, avoiding any act that wm directly or indirectly involve it in their conflict, and to submit to any lawful measures it may take to maintain or protect its neutrality. These rights and duti~s a pply only between the belligerents and the neutral state and, as will appear later, do not extend to th e acts and omissions of the nationals of the neutral state. Use of Neutral Territories

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. Neutral territory is inviolable2 and cannot be used by the belligerents for the movement of their troops,3 the transport of war supplies/ the erection of wireless stations for exclusively military purposes,5 the recruiting of soldiers,6 and the undertaking of military operations in general._ All of these acts shC'uld be resisted by thP. neutral $tate, with anned force if necessary, and such resistance is not to be regarded as a hostile act. 7 Nevertheless, use of neutral territory is not completely barred to the belligerents. For example, the pas' Schwarzenberger, 208. Hague Convention V, 1907, Reg., Art. 1. 3 Ibid., Art. 2. • Ibid. 5 Ibid., Art. 3. ~ Ibid., Art. 4. 1 Ibid., Art. 10.

1 2

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ItITEP,.NA'l'!()NAI. T·"'w

244

245

sage of sick and wounded troops is allowed through a neutral state provided personnel and materials of war are not 8 also carried Persons bound for enlistment in the belligerent armies may cross the neutral frontiers if they do so individually or separate ly and not as a body. 9 The 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.10 Escaped prisoners of war need not be detained by the neutral state but must be assigned a place of residence if they are allowed to remain.11 The neutrality of a state is not affected by the mere passage through its territorial waters of warships or prizes 12 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. 13 The usual duration of the sojourn is 24 hours but this may be shortened or extended, depending on the reason for the entry. 14 Thus, the vessel must leave as soon as it has been re-provisioned; a nd in this connection, it must be stressed that it can take only so much fuel or supplies as it will need until it reaches the nearest of its own ports. 15 Improvement of the weather is also a cue for departure, and so too is the completion of the repairs that made the entry necessary. "While some states do not a1low reparrs in their territory of damage sustainetl by a warship in battle, the rnlP gP.J1e.ra lly observed is that the re_._,

_________

• : 8

Ibid., Art. 12.

: .. ~ Ibid., Art. 6. . ~- ; _.1° Ibid.,

Art. 11. £'Ibid., Art. 13. ~'Hague Convention XIII, 1907, Art. 10. 1 , 'Hague Convention Xlll, 1907. . Ibid., Art. 12. ilOIJoid,, Art. 19.

.. ,. •

.,. . ,

l...;!

NElTI'RALITY

h-rrRRhlAT!OHAL LAW

246

the cases mentioned, so too is it prohibited from giving them any form of direct assistance in connection with the conduct of the hostilitie&. Thus, the neutral state may not send military contingents, extend loans, or even sell, fol' valuable consideration, supplies of war to either or both of the belligerents.iz While the neutral state is not obliged to prevent the export from or transit through its ten-itory of war supplies purchased from private traders by the belligerents in the ordinary course of commerce,23 it is required to take reasonable diligence in preventing the delivery of vessels constructed and armed in its territOl'y for use by any of the belligerents.24 In the famous Alabama Claims Case, for example, Great Britain was held liable in damages to the 25 United States for violation of this duty. Of particular interest is the action taken by the United States in favor of the Allied Powers prior to its actual entry in 1941 into World War II. In 1940, it trans. ferred fifty "out-of-date" destroyers to Great Britain in exchange for the use of certain naval bases in B11tish ter ritory and, the following year, was able to extend more material aid to the same country by virtue of the "Lend · Lease Act," which authorized the President to lend, lease or otherwise make available American war supplies to any belligerent when in his opinion such measure was necessary to the security of the United States. Those acts were a violation of the traditional laws of nf'utrr1lity. Nonetheless, they were sought to be. justified on the ground that they wer(, ,,:tal t;0 the fotur':' defl:'11·':-':' of ~.hP. rlr,it.P.cl ~t.::it.f\~ in

pairs should be permitted so long as they are not intended to increase the fighting force of the vessel.·~ 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 depar ture of the second, the order being determined by their time of arrival. 11 Not more than three vessels from any belligerent shall be allowed simultaneously in the same ' 18 neutral port or waters. The· territorial waters of a neutral state must never be used as asylum for belligerent vessels under pursuit or attack by the enemy. Any man-of-war entering a neutral port for this reason should be asked to leave and, if it refuses, should be rendered incapable of puttmg out to sea for the duration of the war, its officers and crew being 19 interned by the neutral state. If a prize is captured in neutral waters, or brought thereto without justification, it is the duty of the neuti·al state to release it and to intern 20 the prize crew of the captor ship. Passage of military aircraft belonging to the belligerents is not allowed across the airspace of a neutral state. Where a belligerent aircraft is forced to lane! on nentral territory, the same should be det!'linecl. and its officers a11r:l 21

r.rnw intR.rned.

Use of Neutral Facilities and Services Even as the neutral territory is not allowed to make its territory available for the use of the belligerents save in 16

Ibid., Art. 17. Ibid., Art.. 16. 18 Ibid., Art. Jl5. 19 Ibid., ALt. .24~ 20 Ibid., ~- ~ ; 21 Schwarzl.dbih;gert 215. t . ~-- ... . I. t 11

.1 ,,.~,.i °' t

,.ti-

·~,;:;.~

217

Wilson and Tucker, 328. Hague Convention XIII, 1907, Art. 7. 2 • Ibid., Art. 8. 26 7 Moore, Sec. 1330.

2'Z

13

'

ll\\' I ;I

I

248

IN'I'ER~14'1•[()11.1AI.

LAW

N EUTRALITY

249

" ~\ 11

view of the expected adverse reoercussions upon it of a possible A~is victory.

Relat ions of Belligerent States with Nationals of Neutral States It is common practice for neutral states to enact legislation designed to avoid their involvement in foreign wars as a result oftbe acts of their nationals. This is not a duty imposed by international law, how ever, for neutral states' are free to a1low their nationals to deal, in their privat.e capacity, with any of the bellige1·ents. If, for instance, these n ationals enlist in a belligerent army or engage in commerce with any of the belligerents, the neutrality of their state is not thereby compromised in the absence of special rules imposing upon the neutral state the duty of intervening in the transaction. Except for these, international law considers the relationship as strictly between the individual and the belligerent states and whatever hardships may be suffered by its nationals as a result thereof must, as a rule, be acquiesced in by the neutral state.

Visit and Search Belligerent warships and airc1·aft have the right to visit and search neutral merchant vessels on the high seas for t.h e purpose of determining whether they are in any way connected with the hostilities, e.g., performing unneut.ral service, carrying cont.rabal'ld, or attempting to breach a blockade. These vessels may be captured as prize if they are engaged in hostile activities, if they resist visit and search, or if there is reasonable suspicion that they are liable to confiscation. The cargo of these vessels may also be captured under certain conditions, as when they are. contraband.

..

•'

Prize is not confiscated summarily but must be brought to a prize court for adjudication. A prize court is a tribunal established by a belligerent under its own laws, in its territory or the territory of its allies, and applies n.tles of international law in the absence of special municipal legislation. Title to the prize vests in the captor upon confirmation by the prize court of the validity of the capture, except when the vessels or goods are public enemy property, in which case title vests immediately upon capture. In the Declaration of Paris of 1856, the following rules on the treatment of sea-borne goods in time of war were agreed upon: (1) Enemy goods w1der a neutral flag are not subject to capture, except contraband of war. (2) Neutral goods under an enemy flag are not subject to capture, except contraband of war. Contraban.<1 Contraband is the term applied to goods which, although neutral property, may be seized by a belligerent because they are useful for war and are bound for a hostile destination. Absolute contraband are necessarily useful for 26 war 'under all circumstances, like rifles and ammunition, whereas conditional contraband, like food and clothes, have both civilian and military purposes.m A t.h ird category is usually added under what is known as a ''free lis~," which includes goods useful for war and bound for the belligerents but exempted from the law on contraband for humanitarian reasons. Among these are medicines and 28 medical supplies for the use of the sick and the wounded.

26

Declaration of London, Arls:. 22, 24. Ibid. • u Ibid., Art. .29.

21

lNfER.NAT[ONAL LAW

NF.HH1AI.TTY

Absolute contraband are subject to seizure so long as 29 they are bound for enemy or enemy-held territory, but conditional contraband may be seized only when it can be shown that they are destined for the armed forces or the 30 authorities of the belligerent government. But this distinction has lost much of its practical value, because most wartime importations are now government-controlled due to currency restricpons. Moreover, under the 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 t.o seizure on the way. It is noteworthy that the classification between contraband and free goods is continuously changing, largely as a result of advances in mode1n science which has devised new military uses for articles which were before regarded as innocuous or innocent. On this development, Schwarzenberger remarks:

carrying the contraband, some states consider it confiscable if the contraband are more than one-half of the total cargo by weight, value, freight or vo1ume. 34 Contraband are liable to capture from the time they leave the port in which they are loaded and until they reach their final hostile destination. In vjew of this, merchant vessels have resorted to the pretense of stopping at an intermediate neutral port, where the goods are unloaded so as to give the appearance that they were actually destined for this port, although they are subsequently loaded again, either on the same vessel or on another vehicle, for final shipment to their real belligerent destination. The vessel is thus able to acquire immunity during its voyage from the port of origin to the intermediate neutral port and becomes liable to capture only from the time of its departure from the latter port and until its arrival at the belligerent port. To counteract this subterfuge, belligerents have applied the doctrine of ultimate destination, under which the liability of contraband to capture is determined not by their ostensible but by their real destination. Even if the vessel intends to st.op at an intermediate neutral port, it will still be considered as in one continuous voyage provided it can be shown that its cargo will ultimately be dehvered to a hostile destir•a.tion. Thu~. in the case of the Springbok, where the cargo of a British vessel en route to a neutral port was held liable to condemnation on the ground that its real destination was a blockaded port, the court said:

250

.. . with the possible exception of ostrich feathers, practically everything is , useful for purposes of war and is, therefore, conditional contraband. Raw cotton, treated in the Declaration of London as non-contraband and subsequently one of the most important ingredients in .the manufacture of explosives, illustrates this proposition. Even plumstones, left nver i:if:ter rnc> "!r.ing jR.m, s~ ui-ed in th<> rpak:ing of j1;>t e-ngi11el'l.~· 32

Contraband are subject to condemnation. If they are shipped together with innocent goods belonging to the same owner, the latter may also be confiscated under the doctrine of infection.33 As for the disposition of the vessel 29

lbid., Art. 30. Declaration of London, Art. 33. 31 P. 221. 32 Hague Convention XIII, 1907, Art. 3!:l, lJ Declaration of London, Art. 42. 30

2!'>1

We cannot doubt that the cargo was originally shipped with intent to violate the blockade; that the owners of the cargo inte!).ded that it should be tra nshipped at Na ssau to a smaller v~ssel more likely to succeed in reaching safely a

blockaded port than the Springbok: that t he voyage from London to the blockaded port was, as to cargo, both in law a nd in the intent of the parties, one voyage; and that th.fl liability to condemnation, if captured during any part ,:,f H,A voya1te, attached t o tho ""~rgo from th<> t.i me of sailing ."

This doctrine is called the doctrine of continuous voy-

age when the goods are reloaded at the intermediate port on the same vessel and. the doctrine of continuous transport when they .are reloaded on another vessel or other form of transportation.

Blockade

1t::

, \}

NEtmlAl.. tTY

INTERNATIONAL LAW

252

Blockade is a 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. It differs from a pacific blockade, in that the latter applies only to the vessels of the blockaded state and does not affect the vessels of other states. To be valid, a blockade must be: (a) binding, i.e., duly communicated to the neutral states; (b) effective, meaning that it is maintained by adequate force so as t o m ake in36 gress to or egress from the port dangerous; (c) established by the proper authorities of the belligerent government, generaJly the head of state; 37 (d) limited only to the territory of the enemy and not extended to neutral place~ or internationa l rivers; a nd (e) impartially applied to all states alike.38 · 35

5 Wall, 1 (1867). :so Higgins, The Hague Pea ce.Confere,nce, p. 1. s, Declaration of London, Arts.1. '2, 5'; 8 . · ~" Ibid., Art. 14. . ,.

?.fi:~

The liability of a neutral vessel to capture for breach of blockade is contingent on its knowledge, actual or presumptive, of the blockade39 and continues as long as it is pursued by the ships of the blockading force after it has left or tried to enter the blockaded port. If the pursuit is abandoned or the blockade is lifted, capture of the ship can no longer be effected. 40 A vessel foun d gui lty of breach of blockade is liable to condemnation, and so is the cargo unless it is proved that at the time it was shipped the owner neither knew nor could have known of the intention to violate the blockade.41 Practice durin g the last two World Wars radically revised the operational concept of blockade and has reduced the traditional rules to relatively minor importance today. Instead of confining themselves to the ports and coasts of the enemy, the belligerents established the so-called "long distance blockades" over t heir respective "war zones" and "defense areas" which they heavily laid with mines and within which neutral shipping was made subject to their permission. Great Britain, for example, developed the system of "navicerts," by means of which neutral shippers might :cl.void . the delars incident. to visit and search in British control ports by applying for a clearance regardin~ th'3 chal'.'::i.rJ.p,r of their ">liiptn.Bnts and thP.ir de!'5tination.42 Unneutral Servic':'

Unneutral service consists of acts, of a more hostile character than carriage of contraband or breach of block ade, which are undertaken by merchant vessels of a neutral state in aid of a ny of the belligerents. According to the Art. 20. Ibid., Art. 21. 41 Ibid. ~enwick, 641.

- a~ Ibid,
l.~:

; t_t i.. ;j:,,,.

• f .f ...:

1·

r I

251

Ti,'TERN!\Tl0!141 . L AW

N r:1 n·RAL1TY

Declaration of London, and as generally accepted, a neutral vessel is liable to condemnation for unneutral service: (a) if it is making a voyage special with a view to the transport of individual passengers who are embodied in the armed forces of the enemy or with a view to the transmission of information in the interest of the enemy; or (b) if with the knowledge of the owner, or the one who charters the entire vessel, or of the master, it is transporting a rniHtary detachment of the enemy or one or more persons who, during the voyage, lend direct assistance to the operations of the enemy. The cargo, if belongin g to the 43 owner of the vessels, is likewise confiscable. A neutral vessel is also liable to condemnation and to be treated as a merchant vessel of the enemy: (a) ifit takes a direct part in the hostilities; (b) if it is under the orders or control of an agent placed on board by the enemy government; (c) if it is chartered entirely by the enemy government; or (d) if it is at the time a nd exclusively either devoted to the transport of enemy troops or the transmission of information in the interest of the enemy. The goods belonging to the owner of the vessel are likewise liable to 44 i:ondemnation.

diction of the belligerent; (b) that there is urgent necessity for the taking; and (c) that just compensation is paid to the owner. While some autho?ities are of the opinion that the same purpose can be achieved through the exercise of the right of eminent domain, it is claimed on the other hand that expropriation cannot be exercised over property that is only temporarily, and usually over the owner's objection, under the control of the belligerent.'6 Moreover, the expropriated property is never taken for t.b':' pnrpn.c::P. of de stroying it.

'fennination of Neutrality Neutrality is terminated: (a) when the neutral stat.e itselfjoins the war; or (b) upon the conclusion of peace. In the first case~ the hitherto neutral state will be governed by the laws of war in its relations with the other belligerents and by the laws of neutrality in its relations with all other states; and in the second, all states will RgRin he governed by the laws 0f pf:':;:irP.

Angary

I

I II

111:

By the right of angary, a belligerent may, upon payment of just compensation, seize, use or destroy, in case of urgen t necessity for purposes of offenses or defense, neutral property found fa its territory, in enemy territory, or on the high seas.45 As wi.11 be noted, the exercise of the right js conditioned upon three requisit~, to wit: (a) that the property is in the territory under the control or juris48

-«

Declaration of London, Art. 45. [bid., Art. 46.

' ';Oppenheim-Lnuterpacht, Vol. 2, 28.

2155

•• Schwarz..enberger, 216.