PIL - Chapter 11-19

124 InreanarionaL, Law the aerial domain ends is another matter, however, as suggested by the following remarks: i raventions ‘Under the terms of existing international cor and customary international law, States have complete and ex: Clusive sovereignty in the airspace above their territories and ittee on Peaceful Use of Outer Report of U.N. ad hoe C ‘Space, July 14, 1959. Chapter 11 JURISDICTION JURISDICTION is the authority exercised by a state over persons and things within or sometimes outside its territory, subject to certain exceptions. Generally speakin may be classified as either personal or territorial, More jurisdiction may be exercised by a state over: s nationals; (b) the terrestrial domain; (¢) the mari- domain; (d) the continental shelf (e) the open seas; (f) the aerial domain; (g) outer space; and (h) other territories. 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 protection of his state wherever he may be and is, therefore, bound to 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 renounce his own, nationality. At that, some states do not even this under the doctrine of indelible allegiance. The fact that personal jurisdiction is not easy to enforce does not, of course, detract from the legal power possessed by the state over its nationals abroad An example of the assertion of its personal tion by the Republic of the Philippines is found in 15 of the Civil Code, which provides that ‘laws to family rights and duties, or to the status, condition and 125126 Ivreanational, Law legal capacity of persons, are binding upon citizens of the Philippines, even though living abroad.” Another is Article 16, under which “intestate and testamentary successi both with respect to the orde1 1d to the of testamentary provisions, shall be regulated by the national law of the person whose succession is under consid whatever may be the nature of the property and intry wherein said property may be to tax our citizens, even if not residing sources.” In Joyce v. Director of Public Prosecuti he defen- rd Haw Haw,” challenged his for high treason, contending dant, better known as conviction in Great Bri that he was not a British subject. It appeared that he had lived in the country for eighteen years and had misrepre- sented 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 affirming the decision, held that although he ‘as admittedly not a British subject, he had ‘by his own act... maintained the bond e was within the realm bound him to his Sovereign.” Indeed, even without such 5 were established in that case, an to the laws of a state whose national interest he has violated, and notwithstanding that the offense was commit: ted outside its territory. Article 2 of our Revised Penal Code, for instance, punishes any person who, whether in circumstances as ien may be held subject ee. 21, fouse of Lords, Dec. 18, 1945; Am, Journal, Vol. 40 (1946), 663. SunispicTi0N 127 or outside our territory, should forge or counterfeit Philip- pine currency, utter such spurious securities or commit any crime against our national security or the law of nations. ‘Territorial Jurisdiction ‘The general rule is that a state has jurisdiction over all persons and property within its territory. As held in The Schooner Exchange v. McFaddon, “The jurisdiction of the nation within its own territory is necessary, exclusive and absolute. It is susceptible of no lis rather sweeping statement is, however, as aggested, subject to certain important excep- to be discussed shortly. Personal jurisdiction antedated territorial jurisdicti but the latter is more effective because it is asserted by the state over persons and property withi immediate control and subject to its coercive processes. Nevertheless, the state cannot exercise jurisdiction even within its own ter~ ritory 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 that a contrary rule would disturb the peace of nations. Diplo- mats and consuls enjoy the exemption in order that they may have full freedom in the discharge of their official functions. (2) Foreign state property, including embassies, consul tes, and public vessels engaged in non-commercial128 Ivragnxrionat, Law By fiction of law, public vessels are regarded as ex- tensions of the territory of the foreign state ‘The inviolability of embassies and consulates is discussed in Chaptors 12 and 13. (3) Acts of state. As explained in Underhill v. Hernandez," “Every sov- is bound to respect the independence of every ign state, and the courts of one country will sit in judgment on the acts of the government of other, 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 exercising the rights of, passage or arrival under stress. Tnnocent passage means navigation through the territorial sea of a state for the purpose of traversing that sea without entering internal waters, or of proceeding to internal waters, or making for the high seas from internal waters, as long as it is not prejudicial to the peace, good order or security of the coastal state.” Arrival under stress or involuntary entrance may be due to lack of provisions, unseaworthiness of the vessel, inclement weather, or other eases of force majeure, pursuit by pirates. reign armies passing through or stationed in its permission. Tt has been held that “. . . without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who would attempt (o exercise it would certainly be considered ‘th, By exercising it, the purpose for inn Tumspicnon 129 which the free passage was granted would be defeated, and a portion of the military forve 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.” (6) Such other persons or property, including or- ganizations like the United Nations, over which it may, by Examples of such agreements are the Conventi the Privileges and Immunities of the United Nations, the Convention on the Privileges and Immunities of Special ized Agencies, and the RP-US Bases Treaty, which modified the customary exemptions under (5), above. Land Jurisdiction Save in the foregoing cases, everything found the terrestrial domain of the state is under its jurisdicti Nationals and aliens, including non-residents, are bound by its laws, and no process from a foreign government can take effect for or against them within the territory of the local state without its permission. Also, as against all other states, the local state has exclusive title to all property within its territory,’ which it may own in its own cor- orate capacity or regulate when under private ownership through its police power or forcibly acquite through the power of eminent domain, Such property is also subject to its taxing power. {Tho Schooner Exchange v. MeFaddon, supra "Wilson and Tucker, 111 _130 IivreavionaL, Law Maritime and Fluvial Jurisdiction ‘Also as a general principle, the internal waters of a state are assimilated to the land mass and subjected to the same degree of jurisdiction exercised over the terrestrial domain. Covered by this rule are the so-called enclosed waters, sueb as the land-locked lakes, national rivers and man-made canals. criminal and administrative jurisdiction is exercised by the flag state over its public vessels wherever they may be, provided they are not engaged in commerce. ‘As observed in The Schooner Exchange v. McFaddor ional ships of war entering the port of a friendly power open for their reception are to be empted by the consont of that power from n merchant vessels docked in a local port or bay, jurisdiction is exercised over them by the coastal state in civil matters, but criminal jurisdict determined according to either the English rule French rule. Under the former, the coastal state shall have juri 1n over all offenses committed on board such vessels, except only where they do not compromise the peace of the port.” Under the latter, the flag state shall have jurisdiction over all offenses committed on board such vessels, except only where they compromise the peace of the port.” : It is evident that there is no substantial distinetion 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 disturbance of its peace and all other offenses shall be infra ‘ond the Newton. Fenwick, 914. * Gases of the Sal 131 under the jurisdiction of the state whose flag the vessel lies, The real problem is in the determination of the nature or effects of the offense by the coastal state for the purpose of ascertaining whether or not it shall assume Jurisdiction, In the Antoni Case," for example, the Su- preme Court of Mexico held that the murder of a French- man by another Frenchman on board a French merchant, vossel in a Mexican port did not disturb the peace of the port. In the Windenhus Case," however, the United States decided that the murder of a Belgian by another Belgian on board a Belgian merchant steamer in the port of Now Jersey 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 bo- tween the two rules, our own Supreme Court has held that the English rule ible 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,” smoking of the drug on board such vessel will produce pernicious effects w our territory and is, therefore, triable by our courts.” The jurisdiction of the state over its interior waters is more exclusive than that which it exercises over its territorial waters, as will appear later, Nevertheless, subject only toa fe ions, it is the right of the coastal state to enforce all its laws to the full extent in its territorial waters and in proper cases to bar both public and merchant foreign vessels from entering the same. It may even use force, if necessary, to prevent any encroachmenton its territorial integrity. In the famous U.S,S. Pueblo incident, jin " Hudson, Cases, 601. “People v, Wong Cheng, 46 Ph132 JneremnattonaL Law for instance, an American 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 miles from the low-water mark of the coast. der 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 ines, 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 Taid on these waters over which foreign ships will have the right of passage as if they were open seas. Thus, a foreign vessel need not go around our internal waters but may use these archipelagic sealanes in negotiating the distance from one point of the open sea to another. The Contiguous Zone Tt is noteworthy that, besides extending the limits of their territorial sea beyond the traditional three miles from the low-water mark, some states have claimed a “protective jurisdiction” over what is called the contiguous tone. This practice has been confirmed by the Convention ‘on the Territorial Sea and the Contiguous Zone, where it provided that “in a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea, and (b) punish infringement of the 133 above regulations within its territory or territorial se ‘The contiguous zone may not, however, extend more than twelve miles from the coast of the state.” 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. ‘The Continental Shelf ‘The continental shelf refers to: (a) the seabed and of the submarine areas adjacent to the coast but le 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 arees; and (b) to the seabed and subsoil of similar erens adjacent to the coasts of ia- s. The coastal state has the sovereign right to explore the continental shelf and to exploit its natural resources” and for this purpose it may erect. on it such installations equipment as may be necessary.” 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 dis- is allowed to establish on the e installations a safet zone with a radius of five hundred meters over which it iction for the protection of its proper- elf, Art. 1134 nrerwational. Law ‘The above rights are exclusive in the sense that if the || state does not explore the continental shelf or ex- natural resources, no one may undertake these activities or make a claim to the continental shelf without the consent of the coastal state.” ‘The Patrimonial Sea ‘The exclusive economic zone or the patrimonial sea, extends two hundred nautical miles from the coast or the baselines. All living and non-living resources found therein belong exclusively to the coastal state. ‘The concept of the patrimonial sea was adopted in the Declaration of Santo Domingo, by the Caribbean states, in 1972, the General Report of the African States Regional Seminar on the Law of the Sea, held in Yaounde in 1972, fand the Addis Ababa Declaration of 1973, adopted by the Council of Ministers of the Organization of African Unity, and has also been formally proposed by Kenya. ‘Phe patrimonial sea is now provided for in the re- cently ratified 1982 Convention on the Law of the Sea. ‘The Open Seas ‘The open seas or the high seas are res communes and available to the use of all states for purposes of navigation, flying over the ing 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 following instances: (1) Over its vessels. The flag state has jurisdiction over its public vessels at all times, whether they be in its Gwn territory, in the territory of other states or on the open seas. Merchant vessels, on the other hand, are under its © Ioid.. Ast. 2. 135 jurisdiction when they are within its territory, when diction is waived or cannot be exercised by the territorial sovereign, or when such vessels are on the open seas. THE LOTUS CASE PCJ. Ser. A., No. 10, 1927, Hudson, World Ct. Rep. 20 Facts; ‘The Lotus, a French steamer, and the Bozkourt, a Tarkish 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 natior 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. D 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 legal so much so that their separation r existent. Neither the exclusive jurisdietion of each to the ‘occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two States. It is only natural that each should be able to exer- i jction and to do so in respect of the incident as a , 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:136 Iyrexnistional. Law In the event ofa collision or of any other incident of navigation concerning a shi ‘high seas, involving the penal inary responsibility of the master or fhe service of the ship, no penal or disciplinary pro- ‘may be instituted against such persons except before the judicial or administrative authorities cither of the flag state or of the state of which such person 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 authorities of the coastal state.” Piracy is committed for private ends, not political mo- tives. Insurgents may, therefore, not be treated as pirates. (8) In the exercise of the right of visit and search. ‘Under the laws of neutrality, the public vessels or aircraft ‘a belligerent state may visit and search any neutral merchant vessel on the open seas and capture it if found or suspected to be engaged or to have engaged activities favorable to the other belligerent. (4) Under the doctrine of hot pursuit, Tf an offense js committed by a foreign merchant vessel within the ter- fitoriel 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 Tapful, the pursuit must be begun before the offending vyessel has left the territorial waters, or the contiguous one of the coastal state with respect to violation of rights cnforeiblo thereon. Moreover, the pursuit must be continu: ‘of London of 1909. Juisoicrion 137 ous or unabated; otherwise, it will “cooled” and ean no longer be resumed.” deemed to have Aerial Jurisdiction 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. None- theless, 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 aireraft, civil or military, may pass through the aerial domain of a state without its consent. The shooting d 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 s0- called “five air freedoms” have been the subject of varying degrees of recognition: (1). The freedom to fly across foreign territory with- ding. 2) ‘The freedom to land for non-traffie purposes, (3) The freedom to put down traffic originating in the state of the aircratt. (4) The freedom to embark traffic destined for the state of the aireraft, (5) The freedom to embark traffic destined for or to put down traffic originating in a third state. * Oppenheim-Lauterpacht, 554138 yrernational. LAW ‘Under the Convention on Offenses and Certain Other ‘Aets Committed on Board Aircraft, concluded on Septem ber 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 tho territory of any state. No other state may exercise jurisdiction over such aireraft except when: (a) The offer coffect on the territory of such state; ithe offense has been committed by or against a na: manent resident of such state; (@) The offense is against the security of such stats; (d) ‘The offense consists of a breach of any rules or regulations relating to the Might or maneuver of aircra io forve in such state; (5) The exorcise of jun the cbservance of any obligation « Yateral international agreement. is necessary to ensure hh state under a multi- Outer Space Like the open seas, outer space, or the region beyond the earth's atmosphere, is not subject to the jun n of tiny state. Outer space, including te moon and other co Tay al bodies, shall be free for exploration and use by al! testi without discrimination of any Kind, on @ basis of quality and in accordance with international law. It is ae not subject to national appropriation by claim of soy. iby means of use or oceapation or by any other ereignty, means. ‘Astronauts shall be regarded as envoys of m: kind. But a state launching an object into outer space shall retain jurisdiction and control over such object, and over 40 personnel thereof, while in outer spaco oF on 8 celestial pony The state shall also be internationally Table for any uisoicnion 189 damage that may be cai tased by . state or to any ens by such object to another Other Territories ___ Asstate may, by virtue of custon i intermatinal aw, extend ts orton bso ts ter tary and over tribary not fling under its soverignty. ismay be effected in the following ways: 1) Through assertion of jurisdicti over its nationals abroad the exerci ofits ght to punish certain offenses committed outside its tervtor tugains te national interests even ifthe offenders are none ) On the strength of its relatio ) 0 ins with other sta or territories, as when it establishes a colonial po the local state over s xr persons and things illustrated by the for rmy’ station remains under the ju of the sendit r 2 sending state or by the exceptions to the English and French rules on eriminal jurisdiction over foreign merchant vessels, _ @)_ Through acquisition of extraterritorial rights. In is connection exteritarialiy most be distinguished fom extrateriteraity in that the former refers to the exp mn. of person ‘ ton of persons ar property from the local jurisdietion on Pelee international custom whereas the latter ap- ne Aled persons and is based on treaty or convention. ixtraterritoriality has become discredited because of the But exterritoriality, as illustrated by the immunities of the * See Treaty on the Print States in the Exploration and Use140 Intanarionat. Law head of state in a foreign country, remains a respected principle of international law. (5) Through the enjoyment of easements or servi- tudes, such as the easement of innocent passage or the casement or arrival under stress. In the Portuguese En- claves Caso,” for example, the International Court of Jus- tice 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 sovereignty aver the Enclaves and subject to the regulation and control of India, in respect of private ificials and goods in general.” Chapter 12 THE RIGHT OF LEGATION ‘THE EXERCISE OF THE RIGHT OF LEGATION is one of the most effective ways of facilitating and promoting intercourse among states. Through the active right of sending diplomatic representatives and the passive right of receiv. ing them, states are able to deal more directly and closely with each other in the improvement of their mutual interests. Being purely consensual, the maintenance of diplomatic relations is not a demandable right on the part of either the sending or the receiving state. However, recog- nizing the many benefits available from contact with the family of nations, practically all states have availed themselves of and are now exercising the right of legation. Agents of Diplomatic Intercourse Diplomatic relations are normally conducted through the head of state, the foreign 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 to negotiate with a particular state or to participate in an international conference or congress. In the latter case, there is no need to accredit them to the state where the ses: held’ nor is it necessary that there be regu ¢ relations between that state and their own. * Oppenbeim-Lauterpacht, 775-776, ui.142 Inrennavionat, Law ‘The Head of State The 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 pres- ion of his honor or reputation as well. His quarters, ., property, and means of transportai violate under the principle of exterritori 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 resti Ceremonial amenities are also due him unless he eling incognito. In the case of Mighell v. Sultan of Johore,’ suit was r breach of a promise to marry allegedly made dant, who had represented himself as a pri- The action was dismissed when he re- vealed 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 as- sumed 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 in of diplomatic negotiations, but the practice has now largely fallen into disuse. Exeept on rare eccasions when the matter under consideration is of such *1bi *L.R (1894), 1 Q.B. Div. 149. * Oppenheim-Lauterpacht, 761 ‘Tae Ricur or Leaarion 143, significance or delicacy as to warrant no less than what is known as a “summit meeting,” the conduct of external affairs is now generally 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 behalf of his state on any matter falling within his authority, such as questions relating to recognition of states or governments and the settlement of international claims against the state.’ The foreign secretary is also the head of the foreign office and has direstion Sa eat and other diplomatic representatives of Diplomatic Envoys The regular or day-to-day conduct of international af: fairs is entrusted to the members of the foreign service who are accredited hy the sending state as its permanent envoys to represent it in the states with which it is maintaining diplomatic relations. The development of this serv ico was the offshoot of the praetoe of establishing permanent legatons which became general during the seven ‘The heads of these diplomatic missions are classified lows by the Convention on Diplomatic Relations, which was signed at Vienna in 1961: ¢ id Ambassadors or nuncios accredited to heads of (2) Envoys, ministers or internunei it ; minis ios a heads of state. Hea wcerning the Legal Status of Bastern Gres 333, by the Permanent Court of Internation Lauterpacht, 765-766.144 InrepnationaL Law (3) Chargés affaires accredited to ministers for foreign affairs.” ‘The classification lomatic 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 however, diplomatic matters are usually dis- with the head of state but with the foreign secretary regardless of the diplomat'’s rank. Moreover, become the practice now for even the smallest and weak- est states to send diplomatic representatives of the highest rank, even to the major powers. id, therefore, that the distinctions among the members of the di jn connection with matters of protocol or the grant of special honors. In other respects, the various diplomatic agents enjoy substantially the same prerogatives regard- Jess 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 receiving state. It is headed by a doyen du corps who, by tradition, 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 missions shall take precedence in their respective classes in the order of the date and time of taking up their func Being a loose organization without any corporate character, the diplomatic corps does not possess any legal ‘Tae Riour op Lecarion 145, powers or attributes. It is nonetheless im ir ti 7 important in watch ing over diplomatic privileges and honors and has at times a officially in the protection of the rights of its mem- 8, 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 concerned. Moreover, the sending state must make certain that the agrément of the receiving state has been given for the person it pro- Poses to accredit as head of lission to that state.” its is not mer of municipal law because the reeiving sate is sot sige) to accept any representative who persona non grata to it. Indeed, there have been cases when acet d representatives were rejected, resul in strained relations between the sending and rece! tates. 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 a civil ceremony to a Jewess, The United Stat ment considered these reasons inadequate but cold soe of course, insist on its appointment, : To avoid such awkward situations, most states now observe the practice of the agreation, by means ot informal inguities are addressed to the receiving state regarding a proposed diplomatic representative of the sending state. Ibis only when the receiving state manifests its agrément or consent, also informally, that the di matic representative is appointed and formally accredited “Art "Art 4.146 Irennxvionat. Law ‘Article 4 of the Diplomatic Convention provides that “the receiving state is not obliged to give reasons for a refusal of agrément.” Under our Constitution, it is the President who i powered to appoint ambassadors, other public ministers end consuls, subject to the consent of the Commission on ‘Appointments. His diseretion is exclusive when it comes to recciving ambassadors and other accredited to the government of the Phil em- Commencement of the Diplomatic Mission ‘The head of the mission is considered as having taken up his functions in the receiving state either when he has presented his eredential or when he bas notified his arrival and a true copy of his credentials has been presented tothe foreign ministry of the receiving state, ‘The eredentials of the diplomatic agent include chiefly the letter of credence, or lettre de eréance, by means of which he is accredited to the receiving state with the re- (quest that fall faith and credit be given to bis official acts on Dehalf of the sending state. In addition to this document, the envoy usually also carries his diplomatic passport, his nstructions 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 mere ceremony. Unless the receiving state had previously given its 1 to his appointment, the diplomatic representa ‘m the usual privileges and immunities of his office until he is formally accepted. Oppenheim cites the case of one Vitianu, who was convicted of cert crimes in Switzerland despite his assertion that he had agrém tive cannot cl ® art. VII, Sec. 36. ‘Tus Rick or Lecarion 147 been appointed economic counselor of the Romanian legation there, Tt was held that, since he had never been accepted as such by the Swiss government, he could not claim diplomati Diplomatic Functions ‘The functions of a diplomatic mi: oo ission. consist inter (1) Representi stag? Repreventing the sending state in the receiving (2) Protecting in the receiving state the fer the sending state and its nationals. ee (3) Negotiating with the oe ig 1e government of the receiv- (4) Ascertaining by all lawful means conditions and developments in the receiving state and reporting thereon to the government of the sending state, sng Oy rating fenly relation bebneen the end ing and receiving states and developing their cultural and scientific relations.” eae The diplomatic mission may also perform consular jons in the absence of a consular mission from the sending state. On request or by agreement, it may also represent friendly governments, as when’ the United States undertook the diplomatic representation of the Philippine Republic while we were still in the process of organizing our own foreign service." mabeim-Lauterpacht, 784. lomatic Convention, Art. 8. US Treaty on General Relatior148 InreRNATIONAL Law 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 1g 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 on- gaged 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 Japa- nese immigration was likely to produce “gray quences.” Sending states have on occasion, voluntarily or ‘on request, recalled their diplomatic representatives for improper discharge of their functions. Diplomatic Immunities 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 exterritori state he was representing. But this view has yielded to the modern justification that his privileges and immunities dire necessary to give the envoy the fullest freedom or lati- tude in the exercise of his official functions. ‘Tee Ricer oF Lecation 149 Based largely on international custom, most of the diplomatic privileges and immunities have been reaf- firmed and are now expressly provided for in the Di matic Convention of 1961. Some of the more important of these are briefly discussed hereunder. (a) Personal Inviolability Like the head of state, the envoy is regarded as sacrosanct and is entitled ta 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 se- vere penalties by the receiving state. appro- But these rules are not 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 as by mixing with a disorderly assemblage.” The local authorities may also, in exceptional eases, lay hands on it if he has committed an act of violence an is im it 4 act of lence andi is necssry to place him in pre In the Philippines, R.A. No. 75 punishes, on the basis of reciprocity, “any person who assaults, strikes, wounds imprisons or in any other manner offers e person of an ambassador or public minister the law nations” with imprisonment for not more than three years and a fine not exceeding two hundred peso * Art. 29, * Fenwick, 469.150 Twrerwational, Law addition to the penalties prescribed by the Revised Penal Code. It is to be noted, though, that the attack is confined to the person of the envoy and does not include his honor or reputation. (b) Immunity from Jurisdiction Tt 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 exce an violate the local laws with impunity; on the contrary, he is expected to observe them metieul as befits a person of his rank and prestige. It 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 Blizabeth I, he was simply given plomatie Convention provides: “A di ,joy immunity from the criminal j 1g state. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the ease of. (a) a real action relating to private immovable property situated in the territory of the receiving state, unless he sit on behalf of the sending state for the purposes of ‘Tue Ricur oF Lecarion 151, the mission; (b) an action relating to succession in which ir or legatee as a private person and not on hehall of the sending state; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent ng state outside his official funet yy from jurisdic mission, Waiver may also be made impliedly, as 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 civ administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shalll be necessary.” R.A, 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 minist trained, seized, or attached, shall be deemed void, and every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall, upon convietion, be punished by imprisonment for not more that three ye: and a fine of not152 vreenational, Law zure of certain goods alleged to have been brought into the country illegally by an official of the World Health Organi- zation. The WHO and the official moved to quash the (warrant on the ground of the latter’s diplomatic immunity under the Host Agreement concluded between the Philip- pines and the WHO. The Secretary of Foreign Affairs Pined them in this representation, as so too later did the the judge denied the mo- tion, holding that there were “strong and positive indiea- tions of violations of local laws.” In annulling the search warrant, the Supreme Court held as follows: 1. The executive branch of the Philippine Government thas expressly recognized that petitioner Verstuyft is entitled to Givlomatic immunity, pursuant to the provisions of the Host ‘Agresment. The Department of ‘ised rospondent, he Ph position that acco fhe search warrant, since his personal effects wwed free entry from all cus the quashal o and baggage, after having been branch of mnmunity is to accept the claim of ism law officer of the governmel 1g under his direction, Hence, not so exercise th jurisdiction by seizure and detention of vvrags the executive arm of the government ‘Tae Ricur oF Leca 153 in conducting foreign relatic it latter by as 1ing an antagoni: jurisdiction” ft ete emma rather than on the categorical assurance of | the, ficut eos immunity, which was based in turn on the official fleets eet ene eer United Nations for consul ‘he United Nations agency Jnstanco th fat of occurrence of the abuse a aay, that no repetition occurs at toelatee| ie ia 4 commitment voluntary aseumed by the Phi Goverment and a ach har th fe fit fine once even sasuming arguendo a agunet the categri cal ansurance of the executive branch of government hat re ‘pondent judge had some ground rs eupicion that there had been an abuse of dil inne saation of these wnt preg ore him was not tho proper ramedy. He should, Ioan dferonc othe exlosive competences juris In the case of The Holy Se ” ly See v. Rosario," the Supreme Court dismissed a civil complaint against the petitioner 238 SORA 524154 Tereawarional, LAW after the Department of Foreign Affairs had “offi entified that the Embassy of the Holy See is a duly credited diplomatic mission to the Republic of the pines exempt from local jurisdiction as entitled to rights, priv of a diplomatic mission or embassy in .? Tt was further affirmed that “the determination of the executive arm of the government that a state or instramentality is entitled to so omatic immunity al question th ‘sive upon the courts. Where the plea of immun} nized and affirmed by the executive branch, itis the duty Of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country’s foreign relations.” (@)_ 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 eansent of the head of mission.” It algo places on the receiving state "a special duty to take all appropriate steps (0 protect the premises of the mission against any intrusion or damage tnd to prevent any disturbance of the peace of the mission or impairment of its dignity.” Furthermore, “the premi Gfthe mission, their furnishings and other property thereon find the means of transport of the mission shall be immune from search, requisition, attachment or excution." fed from the principle of exterritorial- sty but now generally justified on more pragmatic grounds, the so- franchise de Vhotel extends immunity from the local law to tho diplomatic premises. These include the » art. 22. ‘Tue Ricur oF Lecanion 165 envoy’s offices, his residence and out-buildings, his means of transportation, and the compound where these aro found, which may not bo entered by the loeal authori without his permission, < But this rule is not absolute as it is allowed, i of clear and ungeat necessity, for the lca authorities ta take frie measures to arrest any person subject to their jurisition. The salle righ of diplomatic asylum. not received universal recognition except when it is extended for humanitarian reasons, as when the fugitive seoking sanctuary is in immediate danger of his life or safety. In other cases, asylum is granted only on the strength of local usage, particularly in favor of political refugees, or of treaty stipulations. defiance of a writ of habeas « corpus. When the British government trestened to use foree to carry out the order of court, the Chinese minister immedi the cour, the Ch immediately ordered the nto the official papers and records of afore Siplomatie mission. Accordingly, the Diplomatic Conven. tion simply provides that “the archives and dosumests of the mission shal einviabe at any time and wherever they may be" This is true even in case of armed conf luring which the archives must remain sealed and may not be confiscated by the local state. a * Art, 24,156 International, Law (e) Inviolability of Communication Being essential to the proper discharge by the envoy of his official functions, the right to free communicatio 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 appropriat cluding diplomatie couriers and messages in code or ci her.” ‘Such communications are “inviolable” and the diplo- ‘matic bag containing it “shall not be opened or detained.” ven 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 sball not be liable to any form of arrest or detention.”" () Exemption from Testimonial Duties ‘The Diplomatic Convention also provides that “a diplomatic agent is not obliged to give evidence as a wit- ness."* Nevertheless, he is not prohibited by international law from doing so and may waive this privilege when authorized by his government. For example, the Vene- ‘uclan envoy testified at the trial of the assassin of Presi- Gent Garfield in 1881, On the other hand, the Dutch envoy to Washington i n 1856 when he rejected a request to testify in connection with a homicide committed in his presence and for the prosecution of which his testimony was necessary, The American government later asked for his recall. ‘Tee Riau oF Lecarion 157 (g) Exemption from Taxation sonal baggage is also free from inspection unless there are serious grounds for presuming that it contains articles not, exempt from customs duties or not admissible into the receiving state” (h) Other Privileges Subject to its laws and re, % 0 ulations concerning zones entry into which is prohibited or regulated for reasons of national seourty, the receiving state shall ensure to all jembers_ of the mission freedom of ae a movement and travel ‘The receiving state shall also exempt agents from all personal services, from of any kind whatever, and from milita those connected with requisitioning, mi obligation such as wry contributions ‘The mission and its head sh the flag and emblem of the ser have the right to use state on the premises158 Terpanattonat, Law ‘The Diplomatic Suite or Retinue ‘The abovediscussed immunities and privileges are available not only to the head of mission and his family but also to the other members of the diplomatic retinue, albeit not in the same degree. The diplomatic retinue consists of the diplomatic staff, the administrative and techni- gal staff and the service staff. The administrative and technical 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 official members of if they are not nationals or permanent resi- Gents of the receiving state, enjoy only exemption from taxes on their income from the mission and such Other immunities and privileges as may be granted by the receiving state.” Duration 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 his appointment is notified to the foreign ministry." When his functions have to come to an end, bis privileges and immunities shall normally cease from the Moment he leaves the country or on expiry of a reasonable time in which to do so, but shall subsist until such time even in ease of armed conflict, However, wit respect to sets performed by him in the exercise of his oficial func- fiona, immunity shall continue indefinitely as it is sup- ‘Tue Ricur oF Lecanion 159 posed to have attached not to him personally but to the state he was representing.” iy ‘These privileges and immunities are available to him and to his family not only in situ but as well in transitu, that is, when traveling through a third state on the way to or from the receiving state, so far as may be necessary to transit or return.” Termination of Diplomatic Mission A diplomatic mission may come to an end y the usual methods of terminating offici saatona ike death, resignation, removal, abolition of the offi ‘These are governed by municipal law. Under internat Jaw, 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 USSR. in 1958 for the recall of U.S, Ambassador Kennan for making derogatory statements against the Soviet Gov- ernment. Where the demand is rejected by the receiving state, or even without making a request for recall, the receiving state may resort to the more drastie method of by means of which the offending diplomat is simply asked to leave the country. In October 1971, for instance, the British Govern- sent ordered no lesa than 105 Soviet diplomatic effcals to leave Great Britain—the largest diplomatic expulsion in peacetime history—for espionage. The USSR. retaliated by ousting 5 British diplomats and refi accept 13 others. In 1976, the North Korean ambassador and several members of his bid. * Art 40160 Iyrenwarionat, Law 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 peacefull but may be suspended where it is effected by means of violence and the new government has not yet been recognized by the receiving stale. In either case, according to Oppenheim, there is a necessity for the diplomatic agent to be provided with a new letter of credence. 1 Mananhaimn.Lauternacht. 818. Chapter 13 CONSULS CONSULS are state agents residing abroad for various purposes but mainly in the interest of commerce and navi- e 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 diplo- s leges, although they are to a certain extent entitled to special treatment under the law > institution of consul dates back to as far as six centuries before Christ, when the Egyptians allowed the Greeks at Naueratis to choose from among themselves a magistrate who would apply to them the laws of t country. Later, the Greeks began sending to foreign jurisdictions their own protectors or prostrates (pratenoi), a practice modified by the Romans with the appointment of the praetor peregri interpreted the law between Romans and foreigners. Follawing the conquest of Rome, the Visigoths established a speci foreigners their own national laws rather than the law of the territorial sovereign, Similar courts were created by the Chinese during the eighth century and by the Arabs in the ninth century. With the development of commerce in the Mediterra- nean cities and the Near East, numerous treaties of ca- pitulation, as they were called, exempted European nationals in the Near Bast from the local jurisdiction and 161162 Inrennational. Law made them triable by their own consuls according to their own national laws. Eventually, in view of their growing importanee, consuls acquired official character when they were commissioned directly by their own governments wither than merely by their own countrymen. The rise in hationalism and the concept of sovereignty, however, gradually decreased much of the power of consuls unt they beeame vested only with authority to act generally on commercial and related matters. Nevertheless, the gontinuing expansion of international commerce, coupled writh the improvement of transportation and communica tion in the seventeenth and eighteenth centuries, led to the further growth of consular services. Kinds and Grades ‘There are two kinds of consuls, to wit, the consules ‘The first are professional or \s of the appointing state nd are required to devote their full time to the discharge af their consular duties. ‘The second may or may not be nationals of the appointing state and perform their con- ular functions only in addition to their regular callings. “Although consuls enjoy a certain measure of interna tional character, their grades or ranks remain a matter of jnunicipal concer. Under the Consular Convention, how- qver, the heads of consular pasts are classified according to importance into consul-general, consul, vice-eonsul and consular agent.” Appointment Consuls derive their authority from two prineipal sources, viz., the letter patent or lettré de provision, which Consular Convention, Art. 1, See. 2 Consuts 168 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.’ Hence, consuls are publie 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 fro without explanation. - oe ‘The consent given to the establish i 1 ment of diplomati relations between two states in worse stated, consent to the establishment of consular relations.® Homerer, th aceranoe of dplmatic relatos shall ot ipso facto involve the severance ° infact of consular relations,” and Functions _ Generally speaking, the functions of consuls may be divided into duties pertaining to commerce and navigation, duties respecting the issuance of passports and _vi+ sas, and duties of protection of nationals. ‘The principal duty of consuls mercial interests of their country in the reeei 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 the consular district, exercising a measure of supervision over ‘such vessels, adjusting matters pertaining to their internal order and discipline, as well as visit-164 Ierennavional, Law nd 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 entry into and travel within the ory of the sending state, and to visa invoices and certificates of origin of goods destined for the territory of that state. Tis likewise the responsibility of consuls to look after the interests of fellow nationals and to extend them official fssistance whenever needed, Thos, they may authenticate documents, solomnize marriages, register births and deaths, temporarily administer the estates of deceased “rationals within the consular distriet, advise and adjust Yifferences between their fellow nationals, visit them ‘shen they are arrested or detained by the receiving state, assist them in proceedings before or in relation with the Ioeal authorities, and inquire into any incidents which the consular district. affecting the Immunities and Privileges Te bad already been noted that consuls, not being diplomatic officials, do not ordinarily enjoy the traditions) ‘mmunities and privileges. However, interna- ‘and conventions have invested them with certain privileges and ‘ies which are generally recognized and observed by civilized states By almost universal acceptance, consuls have a right to official communication and may correspond with their home government or other official bodies by any means, including cipher or code, without being subjected to cen: corship or unreasonable restraint. However, this right tional Consus 165 may be curtailed or restricted whenever it is exercised to the prejudice of the receiving state." Consuls also enjoy inviolability of their archives,’ which may not be examined or scized by the receiving state under any circumstance, nor may their produetion or testimony concerning them be compelled in official proceedings.” 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 performed.” In the famous case of Mrs. Kasenkina, for example, the United States rejected a protest made by Russia against the service of a writ of habeas corpus upon the latter's consul at his official residence in New York for the production of a Russian schoolteacher alleged to be dotained in the premises. In fact, the consular offices may ‘even be expropriated for purposes of national defense or public uti Respecting criminal offenses, the rule is that consuls, are exempt from the local jurisdiction for erimes commit~ ted by them in the discharge of their official functions. But ith regard to other offenses, they are fully subject to the local law and may be arrested, 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.” Civil suits may be instituted against consuls in their personal or private capacity but not in matters connected * Ibid., Art. 35.166 IrennartonaL Law with their official duties." In Walthier v. Thomson, example, where a consul was sued for damages resulting from certain statements alleg held that the “consular official the acts complained of were performed in the course of his “ficial duties. . , Thus, if the statements allegedly made to ‘Walthier by ‘Thomson were uttered in pursuance of Thom- son's official funetions as a consular officer, then the sug- gestion of the ambassador of Canada should be adopted and the defendant held immune.” Consuls are also generally exempted from taxation, ce in the militia, and social security are privileged to display their national flag and ignia in the consulate although these concessions aro sential” to the proper discharge of their munities and privileges are available not ‘but also to the members of the consular post, their respective families, and the private sta . Waiver may in general be made by the sending state.” With respect to acts performed by the consul or a consular officer or employee in the exercise of his fumetions, immu nity from jurisdiction will subsist without limitation of ‘Termination of Consular Mission ‘The consul’s office may end in accordance with the ual modes of terminating official relations, such as re leath, expiration of the term, and the Art, 43, 'F. Supp. 319 (1960). 52, 48, 29. ie 167 like. The exequatur maj 2 xy also be withdrawn by the recsiv- ing state, iter ofthe appointing o reiving state ig be extinguishes, or war may bres out hebween them. In event of war, the consulate is closed and the archives are sealed and left in the custody of a caretaker, usually a consul from 1 neural state. The consul from the belliger is allowed to depart for his own countxy as soon sbi and withoot onecseary molestation it should be noted that severance | of consalar relations dees not necssari terminate cipkomatie relations ‘Thus, a an offtct ofthe Kasenkina ens, Rossa and the United States disconinned consular relations for more mn fifteen years. During that period, hi maintained diplomatic relations. ceaChapter 14 ‘TREATIES A‘TREATY may be defined as a formal agreement, usually ut not necessarily in writing, which is entered into by states or entities possessing the treaty-making capacity, for the purpose of regulating their mutual relations under the law of nations. Tn its generic sense, the term treaty may embrace such other compacts as conventions, declara- fions, covenants, acts, concordats, ete., although recognized variations in their extent or purposes. All such agreements, when intended to create Tegal as distin~ guished from moral obligations, are binding on the parties. ‘An executive agreement is not @ treaty insofar as the concurrence thereto of the Senate is not required under viewpoint of agreements are alike in that both constitute equally binding obligations upon the nation.” Functions of Treaties ‘According to Schwarzenberger, treaties are supposed to perform four important functions. In the first place, tronties enable parties to settle finally actual and potential Conflicts, Secondly, they make it possible for the parties to modify tine rules of international customary law by means Greptional principles or standards. Thirdly, they may lead toe transformation of unorganized international society BB. Sayre, 39 Columbia Law Review, p. 75, 1989 168 ‘Taranss 169 into one which may be organized on any chosen level of social integration, Finally, they frequently provide the humus for the growth of international customary law." Essential Requisites of a Valid Treaty To be valid, a treaty must: (a) be entered 0 , 2 into by parties with the treaty-making ca through their authorized representatives; (c) ness, fraud, mistake, jawful subject-matter, (e) in accordance ; ith th - tive constitutional processes. Eeeeeeeeeeaeae (a) Treaty-making Capacity Al states have fall treaty-making eapacity unless limited by reason of their status or by previous self imposed inhibitions. Thus, the protectorate is restricted in the control ofits external affairs by the protector-staie; a alized state may not agree to a defensive or offensive alliance. On the other hand, there are instances, as already pointed out, when even mere 1s have been allowed to sign treaties or join internati tion, may also enter into treaties. (b) Authorized Representatives It is for municipal law to determine 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 make treaties, subject to the arzenberger, 141170 IvreRnationaL, LAW of two-thirds of all the members of the Sen- ‘s in consonance with the general practice of 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 ‘cluded by an organ of the state without constitu: tional 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 Taw to con- Glade the treaty; however, a state may be responsible for fan injaty 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. MeNair writes that if a party negotiating a treaty produces an vathorization which appears to be complete and regular fithough in fact constitutionally defective, “the other purty, if tis ignorant and reasonably ignorant of the de- Fret, Ys entitled to assume that the instrument is in order tect te hold the former to the obligation of the latter.” (c) Freedom of Consent tis uniformly recognized that fraud or mistake will javalidate a treaty as it would an ordinary contract. How- aor there is still sharp difference of opinion on the legal effect of duress upon the treaty. "A treaty forced upon the person of the negotiator is unquestionably null and void ab initio, as was the treaty signed at Bayonne in 1807 by Ferdinand VIT under threat See OM, ‘Trearies i by Napoleon that the Sp: mnarch would be tried for treason if he did not abdicate within twelve hours. A different question will arse, however, ifthe pressure is applied not upon the negotiator but upon the state itself, ax 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 of peace exacted 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.” The flaw in this explanation is that it automatically convicts the defeated state as the aggressor and would, in effect, sanction the acts of the victorious 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 permite by law. Aconngs ress in such cases must, it is Ss aon in uh submitted, be regarded as (a) Lawful Subject-Matter The Treaty of Tordesillas in 1494 is an i‘ 1S example of an invalid treaty because of the illegality of its subject-matter insofar as it sought to divide between Spain and Portugal parts of the Atlantic, Pacific and Indian Oceans, which are Fenwick, 442 ‘Oppenheim-Lauterpacht, Sec. 499.iz TwrennarionaL Law open seas under the law of nations. By the same token, 2 treaty with such unlawful purposes as trafic in white slavery or narcotics, which is contrary to international conventions and public morality, or the operation of the activities of pirates, who are hostes humanis generis, would be null and void. (e) Compliance with Constitutional Processes y-making process is governed by interna ional ln except with Teepect to the mothod of ratification as required by the mu 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 Process he usual steps in the treaty-making process are: ne- 7 signature, ratifeation, and exchange of the in- ratification, ‘The treaty may then be submit- mn and publication under the U.N. Char- step is not essential to the validity of the ter, although 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 known as full powers, which they exhibit to the other negotiators at the start of the s. Iti standard practice for one of the ties to submit a draft of the proposed treaty which, tovether with the counter-proposals, becomes the basis of quent negotiations, The negotiations may protracted, depending on the issues involved, and may even “collapse” in case the parties are unable to come to an agreement on the points under consideration. ‘Tazxnies 173 If and when the negotiators finally terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating istrument and for the purpose of symbolizing the ‘g00d faith of the parties; but, significantly, it does nat indi- cate the final consent of the state in cases where rati tion of the treaty is required. The document is ordinarily signed in accordance with the alternat, 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 hound 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 tional processes of the negotiating states, the weight of authority is that the requirement. woul hold true even without a provi fect in the instrument. Hence, in the absence to the contrary, and 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 violation of Constitution of the ratifying state, as when 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 of the constitu. ‘onal prerequisites for ratification in each country with which they are dealing and that » ex: ia4 Inrennational. Law tified without proper observance of these require ipso facto invalid, whatever the proclamation of the head of the state may assert in that respect. ‘There is no legal obligation to ratify a treaty, but it ‘ying that refusal to ratify must be based on 1 superficial or whimsical the other state would be justified in .. At times, to avoid total rejection of a. treaty, ‘on is qualified or made conditional, ie., with reser Snwhich event the same must be accepted by the other party if these would constitute « modification of the original agreement. ; Finally, it should be stressed that under the Consti- tution of the Philippines, the power to ratify treaties i= tietad in the President and not, as is commonly believed, rhe logislature. The role ofthe Senate is confined simply fa giving or withholding its consent (@ “veto power’ as Corwin calls it) to the ratification. For that matter, it is tempetent for the President to refuse to subrait « treaty (0 the Senate or, having secured its consent for its ratificas tion, to refuse to ratify it. But as a rule, of course, he ean sor atify a treaty without the concurrence of two-thirds of all members of the Senate. "The last step in the treaty-making process is the er change of the instruments of ratification, which asually cre eemifies the effectivity of the treaty unloss a diffevent Gate has been agreed upon by the parties. Where rates: cae dispensed with and no effectivity clause is embod. ad in the treaty, the instrument is deemed effective upon its signature ‘Theder Article 102 of the U.N. Charter, a treaty not registered with the Secretariat, by whieh it shal) be pub Sioa, cannot be invoked before any organ of the Unites ‘Trenries 175 Nations, such as the International Court of Justice. Never- theless, 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 registered and published shall be null and void. Binding Effect of Treaties As a rule, a treaty i parties, including not other states which, although they may not have parti pated in the negotiation of the agreement, have been al lowed by its terms to sign it later by a process known as accession. Non-parties are usually not bound under the maxim pacta fertiis nec nocent nec 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 alll civilized states because of their membership in the family of nations. An example would be the Hague Conventions of 1899 and 1907, Sec- ondly, 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 international peace and security,” and under Article 103 that the obligations of member-states shall prevail in case of conflict with “any other international agreement,” including those concluded with non-members. Thirdly, the treaty itself may expressly extend its benefits to non-signatory states, such as the Hay-Pauncefate Treaty of 1901, which, although concluded only by the United States and Great176 IbereawarionaL, Law Britain, opened the Panama Canal “to the vessels af 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 treat- ‘ment 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 ¥ and thereafter grants tariff preferences to Z under another treaty, Y will be entitled, by virtue of its 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 hard- Ships such as conflicts with the municipal law or prejudice to the national interest, the parties must comply with eir commitments under a treaty and cannot ignore or modify its provisions without the consent of the other sig- patories. Willfal 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 voke the influence of world opinion as a means of en- cing compliance. Violations of treaties ean lead to more drastic consequences, including war. In Tafada v. Angara,” the Supreme Court observed: One of the oldest and fundamental rules 1 servanda—international agreements rent ig not a mere law is pocta 8 performed in good faith, jation but eres ‘Taearies 117 moda fr maybe meen enor the i the obligations undertaken.” ; erent naire, teats overign'y. By may surrender sme anys thal stata power for rater bone rand by or Brive om a convention or puck alter stats ko Fa purel of tally coenanied siscnmanl ape lithe ses or re Scluce righ This trates have boon sed rene agree. ments between States concerning oy ae tof engl the eae of al ies, the formation of all volations, the set rales governing conduct in peace ‘cannot in fact and in real restrictions enter into the the very nature of member imitations imposed by 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 unen- forceable under municipal law. The reason, according to Willoughby, is that “peculiarities of constitutional struc- ture are without international 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 relations with other states. Whatever undertakings are entered into by such organs are internationally binding upon the states which they represent.”" Under these circumstances, the state called upon to perform its obligations may ask for a revision of the treaty, * Willoughby, Fundamental Concepts of Public Law, 316178 InrennarionaL Law ‘amend its constitution to make it conform 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 unreason- ‘Thus, to use his own illustration, if states A and B ‘agree upon the reciprocal use of their respective port facil ties 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 perform its obligation. ‘The Draft Law of Treaties prepared by the Interna- tional Law Commission recognizes the doctrine as a mode of terminating treaties in the following provision: Where a fundamental change has oceurred with regard to ‘a fact or situation existing at the time when the treaty was en- toned into, it may be invoked as a ground for terminating or withdrawing from the treaty if. ‘a. The existence of that fact or situation constituted an essential basis of the consent of the parties to the treaty; and b. The effect of the change is to transform in an essential respect the character of the obligations undertaken in the treaty. Jessup, 150. ‘Treanies 1719 ee eeting a robe sestantibus was invoked by the tates ‘would no longer the loading of eargo vessels. In ju: med that the agreement contem- ten of the thirty-six signatories were at war and the other twenty-six were maintaining a “precarious neutrality,” the situation intended to be regulated had become “a wh different one.” Accordingly, President Roosevelt deslared that “under approved principles of internati has become, by reason of such changed conditions, the right of the United States of America to declare the Con. vention suspended and inoperative.” fe Ib is to be noted, however, sic sant subject to the Ellowing, Knitting, yi applies only to treaties of indefinite duration; (b) the vital \ge must have been unforeseen or unforeseeable and should not have been caused by the party invoking. th doctrine; (c) the doctrine must be invoked within a rea sonable tie; and) i anno aerate retntvely apn rovisions of the the provisions ofthe treaty aed exerted prior othe ‘Treaty Interpretation As in the case of contracts, the bs : , the basic rule in the interpretation of treaties is to give effect to the intention ofthe should be discoverable in the terms of the n official text or texts to Vol ¥, 9.988 354-985, Wilson cor, 222;380 Inrernanional, Law also contain a “protocol” or “agreed minutes” in which certain terms used in the body are defined and clarified. ‘The usual canons of statutory construction are em- ayed 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 technical sense was intended, and, when they have differ- eat meanings in the contracting states, should be interpreted in accordance with the usage of the state where they are supposed to take effect. Doubts should be re- ‘against the imposition of obligations and in favor of the freedom and sovereignty of the contracting parties. At all events, an interpretation that will lead to an absurdity {sto 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 preliminary materials used, ie, the travaux 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 unilaterally hy the na- nil courts of the contracting parties. Decisions of such courts are received with respect but not as authority. ‘Termination of Treaties ‘A treaty may be terminated in any of the following By expiration of the term, which may be fixed or subject to a ‘resolutary condition. (2) By accomplishment of the purpose. ) By impossibility of performance. ject-matter, ‘Tazars 181 (5) By desistance of the parties, through express of the right of lowed. (6) By novation, (D_ By extincti i ae of one of the parties if the treaty is (8) By vital change of circumst: ected eemamea tenet (9) By outbreak of war betwoon the parti : parties cases, save specifically when the treaty was intended to regulate the conduct of the signatories during the hosti- ies, or to cede territory, or to fix boundaries. As held in Techt v. Hudges," provisions of a treaty compatible with state of hostiliti enforced, and those incompatible rejected. (40) By voidance of the treats C ry because of defects its conclusion, violation of ts provisions by one of the par. ties, or inc i i i fs, ori compatibility with international law or the U.N. © 128 NE, 185 (1920).Chapter 15 NATIONALITY AND STATELESSNESS If HAS ALREADY BEEN STRESSED that, save in certain cases, the i al is merely an object and not a subject of international law and is thus not directly gov- crned by its rules, both in the enjayment 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. ‘This remedy is generally not available to him if he is stateless for there would then be no entity with intemational personality to intercede for him for the protection or vindication of his rights under the law of nations. Viewed jn this light, nationality acquires not only municipal but international significance. ‘Nationality is the tie that binds an individual to his state, from which he can claim 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 inter- changeably with citizenship, whieh however, has a more exclusive scope in that it applies only to certain members of the state accorded more privileges than the rest of the ‘ie who also owe it allegiance. Thus, during the Ameri- can regime in this country, jos and Americans were both considered nationals of the United States vis-a-vis tates but Filipinos were nevertheless not entitled to ‘American citizenship rights for purposes of the admini- ‘tration of the internal affairs of the parent state, such as 182 Namionauiry ano Srarenesswess 183, the right to vote for its publie officers like the Presi the United States, The term subject, on the other handy has particular reference to the nationals of monarchial regimes, eg., a British subject, who may be a citizen of the ed Kingdom or of one of iis colonies. Acquisition of Nationality Nationality may be acquired by birth or by naturalization. An individual acquires the nationality ofthe te 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 in proceedings, under general naturalization ) by special aet of the legislature, often in favor of distinguished foreigners who have rendered some notable service to the local state; (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 if of the naturalized husband; (b) on the minor chil- the naturalized parent; and (o) on the alien woman upon marriage to a national.’ Derivative naturalization does not always follow as a matter of course, for it is usually made subject to stringent restrictions and con Our own laws, for instance, provide that. an jen we she herself might be lawfully naturalized * "Hackworth, 1-3 * See the ease of Yao v. Com et: 4, 1971.184 Tivrernationat, Law Multiple Nationality ‘An individual may sometimes find himself possessed. of more than one nationality because of the coneurrent application to him of the municipal laws of the states Glaiming im as their national. For example, a child born in yen of that country under ‘American law and at the same time a citizen of the Philip- pines under our Constitution, which recognizes only the vis sanguinis, Again, under the doctrine of indelible alle- idiance, as observed by some states, an individual may be compelled to retain his original nationality notwithstanding that he has already renounced or forfeited it under the Jaws of a second state whose nationality he has acquired. ‘An illustration would be the case of a woman who inues to be a nations state" Also in point is the William’s Case,’ where an ‘American eitizen who had accepted a commission in the French navy was convicted of violating the Neutrality Act of 1874 notwithstanding his defense that he had been "aturalized in France; the court held that he had no power te renounce his allegiance without the consent of the United States and was, therefore, still subject to its laws. By contrast, a state may allow any ofits nationals to as such even if he may have acquired another ‘as where he is conferred an honorary citizenship than one nation: Navionatsry ano Stare 185 ‘Loss of Nationality Nationality may be lost voluntarily or involuntarily. The voluntary methods include renunciation, express or implied, and request for release, both of which usually precede the acquisition of a new nationality. The involuntary methods are forfeiture as a result of some disqualifi- cation or prohibited act like enlistment in a foreign army or long continued residence in a foreign state, and substi- ution of one nationality for another following a change of sovereignty or any act conferring derivative naturalization.‘ Conflict of Nationality Laws the Hague Conv. y Laws: of National ‘Art 1. Tt efor each State to determine under its icrming und is law who anit nationals Ths law shal be Teenie States insofar as it is consistent va ae tions, international customs, and the pr ognized with sogard to nationality. ue Zit, 2, Any quenion ot fo whether a person pease ‘the natio fa particular State shall be determined in ac- ‘cordanee with the law of the State. stn, 282, Sabot tothe provision ofthe pretot Conven- ton, persn having two oF mere entionalition may be garded a ts atonal by each of the States whose nationality Ar. 4. A State may not afford d may aot afford diplomatic protection to one of ta nationale against a State whose nationality sich por ‘son also possesses, ; ‘Art 5. Within a third State, @ person having moze be treated as he ad only one 657-659.yonat, Law 186 Inren alison of ts law in matters of me force, a third State person posers, Without prejudice to personal status and of any cor shall, of the n whi recognize excl avonality of the ountry with wi “ losely connected. om with th authorza Saeport may renounce one of them wi She Suse whe mately be dese ty sender thkhorization may aet be rinsed inthe case ofa person fat bi habtusl and principal residonce abroad, tthe cond Tee ha down in tho lew ofthe State wiose nationality be de- sires tp sunvender ere ated. tionality, his claim to Philippine nation all be decided on the bess alone of Philippine law, to ‘the sion of all other laws. If, on the other hand, he claims ‘American nationality, the matter shall be resolved on the basis alone of American lav, to the exclusion of all other Sater the issue of his real nationality is raised in a third state, say Spain, the laws of that country will obvi- ously be inapplicable se does not elaim Spanish nation. ality. In this situation, Spain shall apply the principle of effective or active nationality, under which the dual national shall be considered the national exclusively of the state with which he is most closely connected. Nationausry AND SraTELEssNess 187 UNITED STATES (ALEXANDER TELLECH) v. AUSTRIA AND HUNGARY ‘Tripartite Claims Commission, 1928; Decisions and Opinions (1929), p. 71 Question: Could the Austrian government subject Alexander Tellech, who was born of Austrian parent: the United States, to compulsory military service? Held: “The action taken by the Austrian civil authorities in the exercise of their police powers and by the Au: tro-Hungarian military authorities, of wiich complaint , was taken in Austria, where claimant is voluntarily ing, against claimant as an Austrian citizen. Citizen- ship is determined by rules prescribed by municipal law. Under the law of Austria, to which claimant hed voluntarily 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 in Austrian territory and subjecting himself to the duties an tions of an Austrian eitizen 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 Italy file a diplomatic claim against Peru on behalf of Rafwel Canevaro, who is a national of both states under their respective municipal laws? Held: “Whereas, according to Peruvian legislation (84 of the Constitution), Rafael Canevaro is a Peruvian by birth because born on Peruvian territory, and, whereas, on the other hand, according to It of the Civil Code) he is of Italian nationality because bornLaw 188 ‘wrennatio# 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, ‘whore none are admitted except Peruvian citizens and Where he suecoeded in defending his election, and, particularly, by aceepting the office of Consul-General for the Netherlands, after having secured the authorization of both the Peruvian Government and the Peruvian Con- gress; . . . under these circumstances, whatever Rafael Canevaro’s status as a national may be in Italy, the Gov- ernment of Peru has a right to consider him @ Peruvian itizen and to deny his status as an Italian claimant. ..” THE NOTTEBOHM CASE 1.C.J. Reports, 1955, p. 4 (Judg. April 6; 1958) Facts: Nottebohm, 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 I. Many mem ters 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’s naturalization in Liech- ding on Guatemala? “The courts of third States, when they have individual whom two other States hold to nal, seck to resolve the conflict by having international criteria and their prevailing ten- recourse dency is to prefer the real and effective nationality. - ‘actual connections with Liechtenstein were (Notteb: = No settled abode, no prolonged resi- Navionaury ano Srare.essness 189 denee in that country at the time of his application for naturalization No intention of settling there was shown at that time or realized y naturalization and every intention of remaining there... Natur asked not so much for the purpose of obtai recognition of Nottebohm’s membership in fact population of Liechtenstein, as it was to enable him to substitute for his status as a national ofa belligerent State that of a national of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its wa of ie or of assuming the obligations oer ‘han fecal igations—an ates aye exercising the rights pertaining to the “Guatemala is under no obligation to reeogn : tionality: granted in. such cireamstances Licehtonstin consequently is not entitled to extend its protection to Nottebohm vis-a-vis Guatemala and its elaim must, for this reason, be held to be inadmissil ; Statelessness Statelessness is the condition or status of an individ. ual who is born without any nationality or who loses nationality without. retai example of the first case state where only the jus sanguinis is recognized to ps whose state observes only the jus soli. The second case may be illustrated by an individual who after renouncing his original nationality in order to be naturalized in an: other state is subsequently denaturalized and is thereafter denied repatriation by his former country. __ In such cases, the individual is, from the traditional viewpoint, powerless to assert any right that otherwise190 Iyreuavional. Law sould be available to him under international law were he vt 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 of- fended and no international delinquency committed as a of the damage caused upon him. This is s0 because any injury to the individual by a foreign jurisdiction is, legally spealsing, not a violation of his own right but of the right of his state to the protection ofits nationals; the right to complain belongs not to him but to the state of which he is a national. As explained in one case: tn aad cligntion erated tween tion by ene of tm of an actin See onal Law argc only among States subect. oa juridical system. There does not exist in conn between the rns te ce and the injured sodivigsal for the reason that gressng Site Am pjoet to International Law. Te inky it ‘iedual, © nations ofthe clamant State Son imposed by Tatra. juridieal relation, therefore, perform: yal Law with respect ia the link exist- by bond of nation: 1s a State to exact fror lance of conduct preseribed by Internal to individuals is the bond of nationality dividuals an J the protection of a ough it alone are ‘ate and the quency in infl 7 and consequently on his bebalf ir i Hague Con- Tt was in view of this difficulty that the vention of 1930 adopted certain rules calculated to avoid ess and all its attendant incon- the condition of statelessn Allis attendant incon: not also naturalized and, moreover, the wife her husband’s if permitted, only with ber own consent. The adopted child’s existing nationality is also not lost if he does not acquire the adopter’s national ity. 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 (¢) a father who is stateless or of unknown nationality and a mother who is 2 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 instruc- tion, access to courts, elementary education, public relief and assistance and rationing of products in short supply, as well as treatment: no less 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.Chapter 16 ‘TREATMENT OF ALIENS If IS WELL SETTLED that every state has the right, as inherent in sovereignty and essential to its own security ‘and existence, to determine in what cases and under what, ners 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 as territorial sovereign is limited by the requirement that they be treated justly, in accordance with the law of nations. If ‘not observed, the alien and his state would cause for complaint This is not to suggest that the alien is entitled to special treatment over and above that accorded the nationel 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 busi- nesses regarded as vital to the interests of the local state. Denial of such prerogatives is a sovereign act of the local estate to which the foreigner must be prepared to submit. Its, in fact, a cardinal rule of international law that the foreigner must accept the institutions of the local state ‘as he finds them.’ This rule is better stated in the saying, “When in Rome, do as the Romans do.” Considering his less privileged position, he cannot demand that the ways of his host country be altered to suit his own conv. or adjusted to gratify his own interests. This would mil * Jessup, 103. 192 ‘Trexmyent oF ALIENS 193 tate against the independence of the state and subordinate Ito the welfare of the Itis also en accepted principle that the stat insurer of the life or property of the alien snten he i withi ’ Like all individuals exposed to the intercourse, he is expected to take the ins for the protection of his own rights n imself of the usual remedies rights are violated. Accord be held responsible if the 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 Responsibility Notwithstanding the above observations, there are instances when the alien ean claim a more favored position than the national of the local state and, in proper cases, hold the state liable for injuries committed against. him while within its territory. Such instances are governed by what is known as the doct cr this doctrine, a state may le for: (a) an h causes injury to the national of another yy will 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 warranted by the circumstances. The doctrine of state responsibility has been frequently invoked in recent times because of the expanding Bid.194 Tyrennavionat. Law 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 International Standard of Justice ‘The international 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 envi- sioned, the international standard of justice is deemed 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, eg., when a minor erime like petty theft is punished with death. The laws wil below this standard if they authorize the summary de ithout 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 wi its own nationals are purely municipal; international law js involved in its relations with the nationals of other ‘states. Hence, while the national may not demand, say, the right of confrontation if this is not granted by the local Jaw, the foreigner can. This is the view more generally favored as against the so-called doctrine of equality of treatment. ‘Trearenr oF AtieNs 195 ‘The test of the international standard of e Justice was. applied in the Chattin Case,’ where the United Stal aclaim on behalf of a ee tried and sentences a d ce government. and subjected to inhuman treatment in jl In upholding most of the charges filed by the claim it ee ant, the arbitrators ‘Toe whole ofthe procedings dittoses a most as ing lack of serouaneason the part of the Cour.» Nether during the investigation or during th hearings tn open court was any sch thing aon ofl examination tr rss om of any importance atenpte. It sooms highly im- abla tha the aetsed ave been ven weal pean the hearings in open court, freely to speak for th erin procedure ofa blowin Soa eatdare af ciation aot prosenone Bringing the procedings of Mexican anthorities test of nvernatioalstananis.". there can be no Sob of heir being highly inflict. Taquiing whether there is con vincing evidence of these unjust proceedings the answer must bein the iirativn, Since this a cae of alleged ro Spit of Mex for inst commited ys uy IU ncemary to ingure whwther the treatment of Chain oon to an outrage, to bad faith, to wil neglect of dso a haar grr’ acm mal be in the affirmative. eee Failure of Protection or Redress Even if its laws conform to the intern: _ By ational standard of justice, the state may still be held liable if it does not make reasonable efforts to prevent injury to the alien or, *U8.C Mexico, General Claims Commission, 1927.196 Inrernamional. Law having done so unsuccessfull to repair such injury. ‘Thus, the state will be held liable if a foreigner is killed and is shown that its authorities were informed in ad- vance of the plot to Kill him but did not act to forestall it. Furthermore, even if it did take reasonable precautions, state would still be held liable if it thereafter does not employ the necessary diligence to arrest and punish the malefactors or otherwise redress the wrong committed. ‘The degree of diligence required must, of course, vary es of every case. It is not as easy to control a riot as it is to prevent an individual crime, nor lems invariably the same in the apprehension Case,‘ for example, the Re- public 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 forve of three members was reinforeed 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 United States in the Youmans Case,’ where it was shown xrse a Mexican mob joined it in killing a number of Americans, In the Galvan Case, the reason for holding the United States liable for the killing of a Mexican in Texas was not the yhend the criminal but the unreasonable delay in his prose- cation, which dragged inconclusively for six years. For its part, Mexico was ordered to pay damages to the United ns Commission, 1933. of the Commissioners, ‘Treanuenr oF ALIENS 197 States in the Janes Case,’ where it appeared that eight years had already elapsed and the known murderer ‘American national had not yet been arrested and pun It is important to remember in this connection that: responsibility does not immediately 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 interna- ‘was committed by superior government ¢ the chief of state or the national leg- will attach immediately as their acts may not be effectively prevented or reversed under the constitution and laws of the state. However, where the offense is committed by inferior governmont officials ox, more 80, by private individuals, the state will be held Ii reason of its indifference in preventing or can be considered to have connived in effect in its commission. Exhaustion of Local Remedies But even assuming 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 rights.* 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 and without unwarranted interference with its sovereignty by other states. As has been aptly abserved, ‘It is a sound principle that where there is a judicial rem- 1 Lars B, Janes), Mexico, Opinions of th Casionas, 1927. _ Pee ° * Schwarzenberger, 166.198 Ivrimational Law diplomatic interposition become proper.” irement 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 administration of justice. There would also be no remedy available ‘the so-called “acts of state” which are not subject to review. ed foreigner has exhausted all local reme- sucess, he may then avail himself of the fssistance of his state—but only if he has a state. Other- ‘tise, he will have no party to represent him, and he by melt, being a mere individual, cannot institute his dlaim 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 pro- tectod whenever they are in a foreign country. It follows that where the injured alien is stateless, bis case will be one of damnum absque injuria and cannot be the subject natic protection. So important is the tie of nationality, in fact, that itis required to exist from the time of the injury until the time ‘onal claim is finally settled.” Once this tie is im itself is deemed automatically abated. If ‘ured national dies while the claim is an- eration and it should happen that his heirs are he claimant state, the claim will lapse. © Harvard Research Draft on the Resp ty of States, 23 ALL, Sp. Supp. 133. ‘Trearwenr oF ALIENS 199 ‘This requirement may yet yield to the growing view be allowed te against a foreign state ition of his own personal rights. As it is now, it is elready sub- exception that the United Nations may file a laim on behalf of its officials, as affirmed in thy also that under the European Convention on Human Rights, the European Commission on Human Right also contracting states other than the state of the injure individual may bring alleged infractions of the convention before the Kuropean Court of Human Rights. Enforcement of Claim An international claim for damages may be resolved through ne: any of the other meth- of fices, arbitration, and Judicial settlement. ‘There have been cases also where hostile and forcible measures have been employed and when war itself has been resorted to as a means of com- pelling compliance with the demands of the injured state. In the event that the responsi tablished or acknowledged, the duty to make reparation will arise. Such reparation may take the form of restitution or, where le, satisfaction or compensation,” or all may consist of the restoration or replacement of the object of the offense, a formal apoloy in and payment of damages as well. oe 1949 L.CJ, Rep. 147, 43 Am. J. Intl. L-689 (1949). Schwarzenberger, 169.200 Inrernationat, Law Avoidance of State Responsibility ‘The doctrine of state responsibility is a frequently to tortious rather than contractual Tal because of the unwillingness of most states to act as “col- ection agencies” for their nationals entering into private agreements with or in foreign countries. Nevertheless, to ‘on 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 @ 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 limit himself to the remedies available 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 he engaged execution of the work under this contract either directly or indirectly, shall be Considered as Mexicans in all matters within the Republic of the execution of such work anc ‘They shall not claim, nor shall they hav Mexico, cont ment of this under no € ‘ie agents be permitied, in any matter related to this contract. 5 it requires the alien to exhaust the remedies available in the local state, the Calvo clause may be enforced as a lawful condition of the contract. However, it may nol 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 jnade not hy him but by his own state. Thas, as held in ‘TResrwene oF ALIENS 201 United States (North American Dredging Co.) v. Mexico: Under the rules of international law, may an al make such a promise (as is embodied in the Calvo cannot deprive the government of his nation ofits undoubted sigh of applying international remedies to violations of intemational law ‘committed to his damage. Such government freq Inns in mala de pres of nema recovering damage for one ofits citizens in a particular cso, ‘manifestly such citizen cannot by contract. tie in this respect hands of his government. Gt eerste Exclusion of Aliens _ Tho state may also avoid liability to aliens by refusing their admission, but this is not regarded as sound pl sinco it would provoke retaliation in kind and ultimately isolate its nationals from the rest of the international eom- munity. 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 country. 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 Deportation is defined as “the removal of an alien out of the. is presence is deemed ineonsistent 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 to which he is taken.”™ It differs from “exclusion” which is the denial of entry to an alien. Jims Commission, 1926,

PIL - Chapter 11-19

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

PIL - Chapter 11-19

Uploaded by

Copyright:

Available Formats

You might also like