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PIL Nachura
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I. GENERAL PRINCIPLES
A. International Law defined.
2. Modem: The law that deals with the conduct of States and international
organizations, their relations with each other and, in certain circumstances, their
relations with persons, natural or juridical [American Third Restatement],
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D. International Law as true law. Although it may not comply with John Austin’s
concept of law, i.e., enforced by sovereign political authority, nonetheless it is still
true law.
2. Incorporation v. Transformation.
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freedom, cooperation and amity with all nations”. See: Kuroda vs. Jalandoni, 83
Phil. 171 (although the Philippines was not a signatory to the Hague and Geneva
Conventions, international jurisprudence is automatically incorporated in Philippine
law, thus making war crimes punishable in the Philippines); Lo Ching vs.
Archbishop of Manila, 81 Phil 601; Borovsky vs. Commissioner of Immigration,
G.R. No. L-4362 (1951) (where prolonged detention of a stateless alien pending
deportation was deemed illegal, citing the Universal Declaration of Human Rights
which is incorporated in Philippine law).
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As Primary Sources:
a) International Treaties and Conventions, whether general or
particular, establishing rules expressly recognized by the contesting states.
[Note: To these may be added the principle of ex aequo et bono (what is good and
just), provided that the parties to the dispute agree thereto, as provided in Art. 38
(1), Statute of the International Court of Justice.]
As Secondary Sources:
a) Judicial Decisions, generally of international tribunals, the most
authoritative being the International Court of Justice. They are not really sources,
but “subsidiary means” for finding what the law is, and whether a norm has been
accepted as a rule of international law. The decision of a national
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court may be used depending upon the prestige and perceived impartiality of the
domestic court, not being in conflict with the decisions of international tribunals,
and its admissibility in the forum where it is cited.
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B. States.
2. Elements:
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a) Civilization.
i) Theories on Recognition:
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through a political upheaval, a state may not issue a declaration giving recognition
to such government, but merely accept whatever government is in effective control
without raising the issue of recognition. Dealing or not dealing with the government
is not a judgment on the legitimacy of the said government. [Note: Recall the
recognition of the People’s Republic of China, based on the one China policyj
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shifted to the rebel government; the legitimate government recognizing the rebels
shall observe the laws of war in conducting hostilities; third states recognizing the
belligerency shall maintain neutrality; and recognition is only provisional (for the
duration of the armed struggle) and only for the purpose of the hostilities.
7. Classes of States.
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iia) Real Union: two or more states are merged under a unified
authority so that they form a single international person through which they act as
one entity. The states retain their separate identities, but their respective
international personalities are extinguished and blended in the new international
person. E.g., the former United Arab Republic, with Egypt and Syria.
1. The Holy See has all the constituent elements of statehood (people: less
than 1000 individuals; territory: 108.7 acres; government with the Pope as head;
and independence by virtue of the Lateran Treaty of February 11, 1929, which
constituted the Vatican as a territory under the sovereignty of the Holy See). It has
all the rights of a state, including diplomatic intercourse, immunity from foreign
jurisdiction, etc..
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2. See Holy See vs. del Rosario, 238 SCRA 524, where the Supreme Court
distinguished Vatican City from the Holy See. The Holy See is an international
person with which the Philippines had diplomatic ties since 1957.
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3. Membership.
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serving in the Secretariat and the International Court of Justice, although a membe
is still subject to discharge its obligations under the Charter. To lift the suspensio
a qualified majority vote of the Security Council is needed.
4. Organs.
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ii) Domestic jurisdiction clause. The Security Council may take such
steps as are necessary for the settlement of disputes, including preventive
enforcement action, as mentioned above. The only limitation is that the dispute mu
be international, not domestic, in character. Otherwise, such action would violat
the principle that the UN shall not intervene in any matter within the domest
jurisdiction of any State.
iii) Voting: The Yalta Formula. Each member of the Security Counc
shall have one vote, but distinction is made between the permanent members an
the non-permanent members in the resolution of substantive questions. Procedur
matters are to be decided by the affirmative vote of any nine or more member
Non-procedural matters are decided by the concurrence of at least nine member
including all the permanent members. The determination of whether a matter
procedural or substantive is nonprocedural. This allows for the so-called “doubl
veto” by a permanent member of the Council. However, the abstention or absence
of any permanent member is not considered a “veto”.
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and the nature or extent of the reparation to be made for the breach of an .
international obligation. Advisory opinions may be given upon request of the
General Assembly, or the Security Council, or the other organs of the UN when
authorized by the General Assembly.
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Rights provision on “the inherent dignity and the equal and inalienable rights of a
members of the human family”; [c] Some treaties, e.g., the Treaty of Versailles
which confer on individuals the right to bring suit against States before national o
international tribunals; [d] The need for States to maintain an international standar
of justice in the treatment of aliens; [e] The Genocide Convention, which condemn
the mass extermination of national, ethnic, racial or religious groups; [f] The 193
Hague Convention with its rules to prevent the anomalous condition o
statelessness, and the 1954 Covenant Relating to the Status of Stateless Persons
which grants stateless individuals certain basic rights; and [g] The 1950 Europea
Convention on Human Rights and Fundamental Freedoms, which grants private
associations and individuals the right to file complaints before the European Cou
on Human Rights.
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1. By far the most basic and important right. Art. 51 of the UN Charte
recognizes the right of the state to individual and collective self-defense (throug
regional arrangements) if an armed attack occurs against such state, until th
Security Council has taken measures necessary to maintain international peac
and security. However, the right may be resorted to only upon a clear showing o
grave and actual danger, and must be limited by necessity. It is eventually th
Security Council which determines whether or not an “armed attack” has take
place.
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Nicaragua for sending troops to Nicaragua to aid the contras, inasmuch as ther
was no armed attack against the latter. Note that protest or demand for rectificatio
or reparation does not comprise intervention. Thus, the act of President Clinton
discouraging Americans from investing in Burma was not considered a
intervention.
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a) A state should not inquire into the legal validity of the public acts o
another state done within the territory of the latter. For this purpose, consideration
such as motive are immaterial. Thus, in Underhill vs. Hernandez, the US cour
refused to inquire into the acts of Hernandez (a Venezuelan Military Commande
whose government was.later recognized by the US) in a damage suit brought in th
US by an American who claimed that he had been unlawfully assaulted, coerce
and detained by Hernandez in Venezuela. However, in the Sabbatino case the U.S
court said that no court in the US should decline because the act of state doctrin
seems to make a determination on the validity of the confiscation of property by
foreign state a violation of the principle of international law.
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A. Territory.
1. Defined: The fixed portion on the surface of the earth on which the Stat
settles and over which it has supreme authority. The components of the territory o
the State are the terrestrial, fluvial, maritime and aerial domains.
a) Organic acts and issuances affecting the National Territory, (i) Treat
of Paris of December 10,1898 [cession of the Philippine islands by Spain to th
United States; (ii) Treaty between Spain and the U.S., at Washington, on Novembe
7, 1900 [Cagayan, Sulu and Sibuto]; (iii) Treaty between the U.S. and Great Britain
January 2, 1930 [Turtle Islands and Mangsee Islands];
(iv) 1935 Constitution [Batanes]; (v) 1973 Constitution [territory belonging to the
Philippines by historic right or legal title]; and (vi) PD 1596, June 11, 197
[Philippines officially laid claim to the Kalayaan Islands by virtue of occupation an
exercise of jurisdiction],
1. Modes of acquisition.
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However, in the Clipperton Island case, very infrequent administration was upheld
because the territory was a small, desolate island. Likewise, in the Easter
Greenland case, it was held that in thinly populated and uninhabited areas, ver
little actual exercise of sovereignty was needed in the absence of competition.
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e) Accretion. The increase in the land area of the State, either throug
natural means, or artificially, through human labor. Read on the Sector Principle
applied in the Polar regions of the Arctic and Antarctica.
1. Internal (National) Waters. Bodies of water within the land mass, such a
rivers, lakes, canals, gulfs, bays and straits. The UN Convention on the Law of Se
defines internal waters as all waters on the landward side of the baselines of th
territorial sea.
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geographical, economic and political entity, or which historically has been regarde
as such.
3. Territorial Sea. The belt of the sea located between the coast and intern
waters of the coastal state on the one hand, and the high seas on the othe
extending up to 12 nautical miles from the low-water mark, or in the case o
archipelagic states, from the baselines.
a) The general rule is that ships (not aircraft) of all states enjoy the righ
of innocent passage through the territorial sea (not through internal waters). It i
understood, however, that the passage must be continuous and expeditious, excep
in cases of force majeure. Submarines and other underwater craft are required t
navigate on the surface and to show their flag.
5. Exclusive Economic Zone. Extends up to 200 nautical miles from the low
water mark or the baselines, as the case may be. Technically, the area beyond th
territorial sea is not part of the territory of the State, but the coastal State ma
exercise sovereign rights over economic resources of the sea, seabed, subsoi
although other States shall have freedom of navigation
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and over-flight, to lay submarine cables and pipelines, and other lawful uses. State
with overlapping exclusive economic zones are enjoined to enter into th
appropriate treaty for the joint exploitation and utilization of the resources in th
area. Included in the Philippines’ exclusive economic zone is the Scarborough
Shoal, a rock formation about 135 kilometers from Iba, Zambales.
7. High Seas. The high seas are treated as res communes or res nulius, and
thus, are not territory of any particular State. The traditional view is freedom of th
high seas, - i.e., they are open and available, without restriction, to the use of a
States for the purpose of navigation, flight over them, laying submarine cables an
pipes, fishing, research, mining, etc.. At present, however, this rule is subject
regulation arising from treaty stipulations, e.g., regulations to keep the sea from
pollution or prohibiting nuclear testing.
a) Freedom of navigation refers to the right to sail ships on the high sea
subject only to international law and the laws of the flag state. See discussion o
Jurisdiction, infra..
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D. Air territory [Aerial Domain], This refers to the air space above the land an
waters of the State.
2. Outer Space. The rules governing the high seas apply also to outer space
which is considered as res communes. Under customary international law, State
have the right to launch satellites in orbit over the territorial air space of other State
Pursuant to the Outer Space Treaty of 1967, outer space is free for exploration an
use by all States; it cannot be annexed by any State; and it may be used exclusive
for peaceful purposes. Thus, nuclear weapons of mass destruction may not be
placed in orbit around the earth. In the 1972 Convention on International Liability fo
Damage Caused by Space Objects, States which launch objects into space may be
held liable for the harmful contamination caused by such objects, or for the damag
which may be caused by falling objects, e.g., Skylab.
a) Theories on where outer space begins: (i) Lowest altitude for artificia
earth satellites to orbit without being destroyed by friction (90 kms above earth); (
theoretical limits of air flights (84 kms); and (iii) the functional approach, i.e., that th
rules shall not depend on the boundaries set, but on the nature of the activit
undertaken.
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1. Bases of Jurisdiction.
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e.g., piracy jure gentium, genocide, white slave trade, hi-jacking, terrorism, wa
crimes. See Attorney General v. Eichmann.
b) Act of State Doctrine. A State should not inquire into the legal validit
of the public acts of another State done within the territory of the latter. See Underh
v. Hernandez, 168 U.S. 250, where the US court refused to inquire into the acts o
Hernandez (a Venezuelan military commander whose government was late
recognized by the US) in a damage suit brought in the US by Underhill, a
American, who claimed that he had been unlawfully assaulted, coerced an
detained by Hernandez in Venezuela. In l/KS. Kirkpatrick v. Environmental Tectoni
Corporation, 29 ILM 182, it was held that other considerations, like motive, are no
material in the application of the doctrine.
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g) Warships and other public vessels of another State operated for non
commercial purposes. They are generally immune from local jurisdiction under th
fiction that they are “floating territory” of the flag State [Schooner Exchange v
MacFaddon, 7 Cranch 116], Their crew members are immune from local jurisdictio
when on shore duty, but this immunity will not apply if the crew members violat
local laws while on furlough or off-duty.
3. Jurisdiction over land territory. Save for the exemptions mentioned above
the State exercises jurisdiction over everything found within its terrestrial domain
a) Over internal waters. The same jurisdiction as over the land area, sinc
the internal waters are deemed assimilated in the land mass. In the case of foreig
merchant vessels docked in a local port or bay, the coastal State exercise
jurisdiction in civil matters, but criminal jurisdiction is determined according to th
— <
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ii) French Rule: flag State shall have jurisdiction over all offense
committed on board the vessel except those which compromise the peace of th
port.
f) Over the continental shelf. The coastal State enjoys the right o
exploitation of oil deposits and other resources in the continental shelf. In case th
continental shelf extends to the shores of another State, or is shared with anoth
State, the boundary shall be determined in accordance with equitable principles.
i) Its vessels. The flag State has jurisdiction over its public vessel
wherever they are, and over its merchant vessels on the high seas. See The Lotu
Case, World Ct. Rep. 20. However, because of the “flags of convenience
controversy, the UN Convention on the Law of the Sea concedes that a vessel sha
have the nationality of the flag it flies, provided there is a genuine link between th
State (whose flag is flown) and the vessel, i.e., the State must effectively exercis
jurisdiction and control in administrative, technical and social matters over the ship
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ii) Pirates. Pirates are enemies of all mankind; they may be capture
on the open seas by the vessels of any State, to whose territory they may be broug
for trial and punishment.
iii) Those engaged in illicit traffic in drugs and slave trade. All States
shall cooperate in the suppression of illicit traffic in narcotics and slave trade. O
late, the same rule should apply with respect to terrorists. Likewise, all States sha
cooperate in the suppression of unauthorized broadcasting from the high seas
except in case of distress calls.
iv) In the exercise of the right to visit and search. Under the laws o
neutrality, the public vessels or aircraft of a belligerent State may visit and searc
any neutral merchant vessel on the open seas and capture it if found to be engage
in activities favorable to the other belligerent.
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6. The Rome Statute of the International Criminal Court (ICC). The Statute
was adopted in July, 1998 by a Conference of States in Rome. The Court will com
into existence once 60 States have ratified the Statute. The Philippines signed th
ICC Statute on 28 December 2000. As of 04 January 2000,124 countries have
signed the Statute, although only 25 have ratified the same.
a) The jurisdiction of the Court shall be limited to the most serious crime
of concern to the international community as a whole. The Court has jurisdiction
accordance with the ICC Statute with respect to the following crimes: genocide
crimes against humanity, war crimes, and crimes of aggression. .
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V. RIGHT OF LEGATION
A. The right of legation. Also known as the right of diplomatic intercourse, this refers
to the right of the State to send and receive diplomatic missions, which enable
States to carry on friendly intercourse. It is not a natural or inherent right, but exis
only by common consent. No legal liability is incurred by the State for refusing t
send or receive diplomatic representatives. Governed by the Vienna Convention o
Diplomatic Relations (1961).
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a) The sending State is not absolutely free in the choice of its diplomat
representatives, especially heads of mission, because the receiving State has th
right to refuse to receive as envoy of another State a person whom it consider
unacceptable. To avoid embarrassment, States resort to an informal inquir
[enquiry] as to the acceptability of a particular envoy, to which the receiving Stat
responds with an informal conformity [agrement]. This informal process is known a
agreation.
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and the members of the diplomatic retinue, i.e., the administrative and technical staf
ii) The Vienna Convention provides that the receiving State has th
special duty to protect diplomatic premises against invasion, damage, or any ac
tending to disrupt the peace and dignity of the mission. However, in Reyes
Bagatsing, 125 SCRA 553, the Supreme Court held as invalid the denial by the
Mayor.of the application for a permit to hold a public assembly in front of the U.S
Embassy, there being no showing of a clear and present danger that might arise a
a result of such a rally.
iii) The premises of the mission, their furnishings and other proper
thereon, and the means of transport of the mission shall be immune
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ii) This immunity also means that the diplomatic agent cannot b
compelled to testify, not even by deposition, without the consent of his governmen
before any judicial or administrative tribunal in the receiving State.
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for the personal use of the envoy or members of the family forming part of h
household, including articles intended for his establishment. Baggage and effect
are entitled to free entry and, normally, exempt from inspection; articles addresse
to ambassadors, ministers, charge d’affaires are also exempt from customs
inspection. ,
B. Consular Relations. Consuls are State agents residing abroad for various
purposes but mainly in the interest of commerce and navigation.
1. Kinds of Consuls:
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2. Ranks:
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VI. TREATIES
A. Treaty. A treaty is defined as “an international agreement concluded between
States in written form and governed by international law, whether embodied in
single instrument or in two or more instruments and whatever its particula
designation” [Vienna Convention on the Law of Treaties, 1969]. It is an agreemen
between States, including international organizations of States, intended to creat
legal rights and obligations of the parties thereto. It is the ubiquitous instrumen
through which all kinds of international transactions are conducted. It is the closes
analogy to legislation that international law has to offer. Other names used t
designate international agreements besides “treaty”, are “convention”, “pact”,
“protocol”, “agreement”, “arrangement”, “accord”, “final act”, general act” and
“exchange of notes”. An executive agreement may, within the context of municipa
law, not be considered as a treaty [Commissioner of Customs v. Eastern Sea
Trading, 3 SCRA 351], but from the standpoint of international law, they are equall
binding as treaties. In the case concerning maritime delimitation and territori
questions between Qatar and Bahrain [Qatar v. Bahrain, Jurisdiction, First Phase
ICJ Rep. 1994 112], the ICJ ruled that Minutes to a meeting and exchange of letter
constitute an international agreement creating rights and obligations for the partie
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d) Entry into force. A treaty enters into force in such manner and on suc
date as it may provide, or as the negotiating parties may agree. In the absence o
such a provision, the treaty enters into force as soon as the consent of all the partie
to be bound by the treaty is established.
ii) Registration with and publication by the United Nations. Art. 102
of the Charter of the United Nations requires that every treaty and internation
agreement entered into by any member of the UN should be registered as soon a
possible with the Secretariat and published by it. Failure to register would no
however, affect the validity of the treaty; however, the unregistered instrume
cannot be invoked by any party thereto before any organ of the United Nations.
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i) In Tanada v. Angara, 272 SCRA 18, the Supreme Court ruled tha
treaties do indeed limit or restrict the sovereignty of a State. By their voluntary ac
States may surrender some aspects of their power in exchange for greater benefi
granted by or derived from a convention or pact. Under the rule of pacta sun
servanda, a State is bound to make such modifications in its laws as may b
necessary to ensure the fulfillment of the obligations undertaken under the treaty
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a) It is for each State to determine under its own law who are its nationals
This law shall be recognized by other States insofar as it is consistent wi
international conventions, international customs, and the principles of law genera
recognized with regard to nationality.
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d) Subjugation.
e) Cession.
b) If a person has more than one nationality, he shall, within a third Stat
be treated as if he had only one; the third State shall recognize exclusively eith
the nationality of the State in which he is habitually and principally resident, or th
nationality of the State with which he appears in fact to be most closely connecte
This is known as the principle of effective nationality.
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1. This right includes the power to regulate the entry and stay of aliens, an
the State has the right to expel aliens from its territory through deportation o
reconduction.
2. The alien must accept the institutions of the State as he finds them
Accordingly, the alien may be deprived of certain rights, e.g., political right
acquisition of lands, etc. However, local laws may grant him certain rights an
privileges based on [a] reciprocity; [b] most-favored-nation treatment; or [c] nationa
treatment, i.e., equality between nationals and aliens in certain matters, such as
entitlements to due process of law, etc. But these privileges conferred may b
revoked, subject to treaty stipulations.
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accepted in modern civilization. Execution of an alien without trial is considered a
falling below the international standard of justice.
i) Where the laws of the State fall below the international standard,
is no defense that such laws are applicable not only to aliens but to nationals, a
well. In such a case, the doctrine of equality of treatment does not apply.
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must be given an opportunity to do justice in its won regular way and withou
unwarranted interference with its sovereignty by other states.
2. Resort to diplomatic protection± After the alien has exhausted all availabl
local remedies without success, he must avail himself of the assistance of his stat
a) The tie of nationality must exist from the time of the injury until the tim
the international claim is finally settled.
b) The UN may file a diplomatic claim on behalf of its officials [Count Foik
Bernadotte, 1949 I.C.J. Rep. 147]; and the European Commission on Human Right
and also contracting states other than the state of the injured individual may brin
alleged infractions of the European Convention on Human Rights before th
European Court of Human Rights.
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3. Fundamental principles:
ii) Under the attentat clause, the murder of the head of state or an
member of his family is not to be regarded as a political offense. Neither
genocide.
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f) The act for which the extradition is sought must be punishable in bot
the requesting and requested states. This is known as the rule of double criminalit
fNote: Abduction of the fugitive in the state of refuge is not allowed, as it constitute
a violation of the territorial integrity of the state of refuge. But if the abduction
effected with the help of the nationals of the state of refuge itself, then the state
refuge cannot later demand the return of the fugitive. See: Savarkar Case.]
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1. Sec. 12, Rule 24 of the Rules of Court of the Philippines, provides for this
The power to issue “letters rogatory” is inherent in the courts of justice.
F. Asylum. The power of the state to allow an alien who has sought refuge from
prosecution or persecution to remain within the territory and under its protectio
This has never been recognized as a principle of international law.
1. Principles on Asylum.
G. Refugees. A refugee is any person who is outside the country of his nationality
or if he has no nationality, the country of his former habitual residence, because h
has or had well-founded fear of prosecution by reason of his race, religion
nationality or political opinion and is unable or, because of such fear, is unwilling t
avail himself of the protection of the government of the country of his nationality,
if he has no nationality, to return to the country of his former habitual residence.
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3. The Refugee Convention of 1951 does not deal with admission, but wit
non-refoulement, i.e., that no contracting state shall expel or return a refugee in an
manner whatsoever, to the frontiers of territories where his life or freedom
threatened. The state is under obligation to grant temporary asylum to refugees.
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B. Pacific or amicable modes. Article 3 of the UN Charter provides that the parties
to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own choice.
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rejection, usually by the Head of State, with the statement of the reasons wh
compliance with the treaty is no longer required. Thus, the contention that th
Warsaw Convention (of 1933, to which the Philippines acceded in 1950 an
became bound thereby on February 9, 1951) should not apply because of th
change in present circumstances as compared with the 1933 situation, is n
tenable. The requisites for valid invocation of this principle are:
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OUTLINE / REVIEWER IN POLITICAL LAW
689
a) It is for each State to determine under its own law who are its nationals
This law shall be recognized by other States insofar as it is consistent wi
international conventions, international customs, and the principles of law genera
recognized with regard to nationality.
d) Subjugation.
e) Cession.
b) If a person has more than one nationality, he shall, within a third Stat
be treated as if he had only one; the third State shall recognize exclusively eith
the nationality of the State in which he is habitually and principally resident, or th
nationality of the State with which he appears in fact to be most closely connecte
This is known as the principle of effective nationality.
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1. This right includes the power to regulate the entry and stay of aliens, a
the State has the right to expel aliens from its territory through deportation
reconduction.
2. The alien must accept the institutions of the State as he finds the
Accordingly, the alien may be deprived of certain rights, e.g., political righ
acquisition of lands, etc. However, local laws may grant him certain rights an
privileges based on [a] reciprocity; [b] most-favored-nation treatment; or [c] nation
treatment, i.e., equality between nationals and aliens in certain matters, such as
entitlements to due process of law, etc. But these privileges conferred may b
revoked, subject to treaty stipulations.
i) Where the laws of the State fall below the international standard,
is no defense that such laws are applicable not only to aliens but to nationals, a
well. In such a case, the doctrine of equality of treatment does not apply.
must be given an opportunity to do justice in its won regular way and witho
unwarranted interference with its sovereignty by other states.
2. Resort to diplomatic protection± After the alien has exhausted all availab
local remedies without success, he must avail himself of the assistance of his stat
a) The tie of nationality must exist from the time of the injury until the tim
the international claim is finally settled.
b) The UN may file a diplomatic claim on behalf of its officials [Count Foik
Bernadotte, 1949 I.C.J. Rep. 147]; and the European Commission on Human Right
and also contracting states other than the state of the injured individual may brin
alleged infractions of the European Convention on Human Rights before th
European Court of Human Rights.
3. Fundamental principles:
ii) Under the attentat clause, the murder of the head of state or an
member of his family is not to be regarded as a political offense. Neither
genocide.
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