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PUBLIC INTERNATIONAL LAW
(CHAP 5-19)
No man is an island is not just a
flight of rhetoric but bespeaks the urgent need for joining of hands by all the
peoples of the world in the promotion of international peace and progress
-
Isagani A. Cruz
-
THE CONCEPT OF THE STATE
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Generally accepted
methods by which status is acquired:
Revolution
Unification
Secession
Assertionof independence
Agreement
and Attainment of civilization
Principle of State
Continuity
-
from
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the moment of its creation, state continues as a juristic being notwithstanding
changes in its circumstances, provided only that they do not result in loss of
any of its essential elements
-
continuity
of life of state is not impaired by changes in form of government, reduction of
its population as long as substantial number of people survive, loss of part of
its territory provided that remainder is still sizable
-
limitation
of sovereignty reduces it to a dependent state but does not deprive it of
international personality
Extinction of State
-
Example:
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Population may be
completely wiped out
Government overthrown
without being replaced
State may merge with
another state
Territory dismembered or
annexed by others
If federation, may be
broken up or dissolved
If independent, becomes
dependent
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-
Radical
impairment or actual loss of one or more of the essential elements of the state
that will result in its extinction
Succession of States
-
question
will arise in the event that a state is extinguished or is created as a result
of any of the methods previously discussed
-
takes
place when one state assumes the rights and some of the obligations of another
because of certain changes in the condition of the latter
-
may
be either universal or partial
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-
Universal:
state is annexed to another state or is totally dismembered or merges with
another state to form a new state; international personality of the former
state is completely absorbed by the successor
-
Partial:
a portion of the territory of a state secedes or is ceded to another or when an
independent state becomes a protectorate or a suzerainty or when a dependent
state acquires full sovereignty
Consequences of State
Succession
-
allegiance
of the inhabitants of the predecessor state in the territory affected is
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transferred to the successor state
usually, naturalized en
masse
-
political
laws of former sovereign are automatically abrogated and may be restored only
by positive act of new sovereign
non-political laws are continued unless changed
by sovereign or contrary to institutions of successor state
-
treaties
of political or commercial nature, including extradition, are discontinued
except those dealing with local rights and duties
-
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all
rights of predecessor state are inherited by successor state
does not apply to liabilities; successor state
has discretion which liabilities to assume and which to reject
Succession of Governments
-
one
government replaces another either peacefully or by violent methods
-
integrity
of state is not affected
-
rights
of predecessor government are inherited in toto by successor government
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-
where
the new government was organized by virtue of a constitutional reform duly
ratified in a plebiscite, the obligations of the replaced government are also
completely assumed by the former
-
where
the new government was established through violence, as by a revolution, it may
lawfully reject the purely personal or political obligations of the predecessor
government but no those contracted by it in the ordinary course of official
business
RECOGNITION
Recognition
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-
merely declaratory and only affirms the pre-existing fact
that the entity being recognized already possesses the status of an
international person
-
highly political and discretionary
-
minority view: recognition is constitutive, meaning that
it is the last indispensable element that converts or constitutes the entity
being recognized into an international person
-
may be extended by individual states or a number of them
together
-
Philippines: President determines question of recognition,
an act of state therefore not subject to judicial review
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Object of Recognition
-
may be extended to a state, a government or a belligerent
community
-
Recognition of state is generally irrevocable and imports
recognition of its government
-
Recognition of government may be withdrawn and does not
necessarily signify existence of state
-
Recognition of belligerent community does not produce same
effect as recognition of state and government because rebels are accorded
international personality only in connection with the hostilities they are
waging
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Kinds of Recognition
-
may be either express or implied
-
Express
o
May be verbal or in writing
o
May be extended through formal proclamation or
announcement, stipulation in a treaty, letter or telegram ,or on occasion of
official call or conference
-
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Implied
o
Recognizing state enters into official intercourse with
the new member by exchanging diplomatic representatives, concluding bipartite
treaty dealing comprehensively with relations in general, or acknowledging its
flag or entering into formal relations with it
o
In case of belligerent communities, recognition is implied
when legitimate government blockades a port held by the former or when other
states observe neutrality in the conflict
-
act of recognition must have clear indication of an
intention:
a. to treat with the
new state as such, or
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b. to accept the new
government as having authority to represent said state, or
c. to recognize in
the case of insurgents that they are entitled to exercise belligerent rights
Recognition of States
-
free act by which one or more states acknowledge the
existence on a definite territory of a human society politically organized,
independent of any existing state, and capable of observing the obligations of
international law, and by which they manifest therefore their intention to
consider it a member of the international community
Recognition of Governments
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-
free act by which one or several states acknowledge that a
person or a group of persons is capable of binding the state which they claim
to represent and witness their intention to enter into relations with them
-
usually decided on the basis of political considerations
-
3 kinds of de facto government:
a. established by
inhabitants who rise in revolt and depose legitimate regime
b. established in
the course of war by invading forces of one belligerent in the territory of
another belligerent whose government is also displaced
c. established by
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inhabitants of state who secede therefrom without overthrowing its government
-
practice of most states now is to extend recognition to a
new government only if it is shown that it has control of the administrative
machinery of the state with popular acquiescence and that it is willing to
comply with its international obligations
-
2 criterion:
a. objective test
the government must be able to maintain order within the state and to repel
external aggression
b. subjective test
employed for purpose of justifying the withholding of recognition from a
government that is politically unacceptable
-
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De jure: government that satisfies the criteria
-
De facto: not yet satisfied the criteria
-
if no indication of kind of recognition extended, it is
presumed de jure
De Jure
De Facto
Relatively permanent
Provisional
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Vests title in the government to its properties abroad
Does not vest title in the government to its properties
abroad
Brings about full diplomatic relations
Limited to certain juridical relations
Effects of Recognition of States and Governments
-
full diplomatic relations established, except de facto
government
-
recognized state or government acquires the right to sue
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in the courts of recognizing state
-
recognized state or government has right to the possession
of properties of its predecessor in the territory of the recognizing state
-
all acts of the recognized state or government are
validated retroactively, preventing the recognizing state from passing upon
their legality in its own court
Recognition of Belligerency
-
belligerency exists when inhabitants of state rise up in
arms for the purpose of overthrowing the legitimate government
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Insurgency
Belligerency
Initial state of belligerency
More serious and widespread
Directed by military authorities
Under civil government
Usually not recognized
There are settled rules regarding recognition of
belligerency
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-
conditions:
a. there must be an
organized civil government directing the rebel forces
b. rebels must
occupy a substantial portion of territory of state
c. conflict between
legitimate government and rebels must be serious, making the outcome uncertain
d. rebels must be
will and able to observe laws of war
Consequences of Recognition of Belligerency
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-
belligerent community is considered a separate state for purpose
of the conflict it is waging
-
relations with each other shall be governed by the laws of
war and their relations with other states shall be subject to the laws of
neutrality, for the duration of hostilities
-
where recognition is extended by third states,
consequences are effective only as to them and do not bind other state not
extending recognition
-
only where recognition is made by parent state that the
effects become general and legally applicable to all other states
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RIGHT OF EXISTENCE AND SELF DEFENSE
Forcible
Means must be taken only when there is an ARMED ATTACK.
The
attack must be instant, overwhelming and no time for deliberation.
The
danger must be grave and actual.
Regional
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arrangements and organizations are necessary for balance of power or an
arrangement of affairs so that no state shall be in a position to have absolute
mastery over another.
Aggression,
use of armed force against a sovereignty, its territorial integrity or
political independence of another state.
RIGHT OF INDEPENDENCE
Sovereignty,
the supreme and uncontrollable and inherent power of the state to command and
enforce obedience to which all interests are subject and all wills
subordinate..
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It is
not absolute freedom,only means freedom from control by any other state and not
freedom from the restrictions that are binding to all other states under the
family of nations.
Doctrine
of Non-Intervention- corollary to sovereignty, states must abstain in
intervening in the domestic or international affairs of other states.
Valid
intervention includes an act of self defense and when such intervention is
decreed by the security council.
Drago
Doctrine- contracting powers agree not to have recourse to armed force for recovery ofcontract debts
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claimed from one government to another being due to its nationals.
RIGHTS OF EQUALITY
All
rights of a state, regardless of its number must be observed and respected by
the international community in the same manner that the rights of other states
are observed and respected.
ACT OF STATE DOCTRINE
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TERRITORY
Territory is a fixed
portion of the earth inhabited by a population of a state.
AQCUISITION OF A
TERRITORY
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Discovery and
Occupation
-
territory discovered
must be TERRA NULLiUS or one which is not owned by any entity.
-
There must be
possession and administration
-
Possesion creates an
INCHOATE TITLE which bars any other state from entering said territory within a
reasonable time until the discovering territory is able to establish
administration.
-
Upon administration,
the inchoate title ripens into a full title.
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Dereliction
-
A state physically
withdraws from the territory with the intention of abandoning it altogether.
-
Said land becomes
terra nullius once again and open to be discovered.
Prescription
-
The exercise of
sovereign rights over a territory for a reasonable period of time
-
No rule fixing the
exact period yet.
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Cession
-
transfer of territory
is by agreement between states.
-
Either by donation,
sale, barter, exchange etc.
Subjugation
-
Having been
previously conquered through war , territory is formally annexed to the
victors territory at the end of war
Accretion
-
Natural or artificial
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archipelago shall be encompassed as one
territotry.
JURISDICTION
Jurisdiction is the authority of the state over
its person and things within or outside its territory
Personal Jurisdiction- over persons bound by their duty of obedience
and allegiance.
-
Such duty follows him even when he is outside
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the territory and he may not be excused from it unless he renounces
allegiance. Examples are
laws on family code, family rights and duties, status, condition and legal
capacities of
persons.
-
An alien may be subject to the laws of the
state in whose national interest he has violated be it in its territory or
outside.
Territorial Jurisdiction- over person and
property within its territory.
-
Jurisdiction in our own territory is necessary,
exclusive and absolute.
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When
states cannot exercise jurisdiction within own territory:
-
Foreign states (by vitue of sovereign
equality), heads of states,diplomatic representatives and consuls to a certain
degree ( by virtue of exterritoriality.
-
Foreign state properties including embassies,
public vessels engaged in non-commercial activities, consulates.
-
Acts of State (by virtue of sovereignty and
independence0
-
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Foreign merchant vessels in innocent passage or
arrival under stress.
-
Foreign armies passing thru or stationed in
territory.
-
UN and others by treaty.
Land Jurisdiction- everything found within the
terrestrial domain.
Maritime and Fluvial Jurisdiction
-
Criminal, administrative and vivil jurisdiction
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is excercised by the flag state wherever it may be, provided it is not engaged
in commerce.
-
English rule is applied in the Philippines.
Coastal state has jurisdiction over all offenses.
-
French rule- Coastal state has jurisdiction
only when the offense constitute a disturbance of peace to its territory.
-
Important is the determination of disturbance
of peace.
Open Seas
A state a
jurisdiction in the open seas:
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-
Over its vessels. Flag state has jurisdiction
at all times. Merchant vessels however are under jurisdiction when within
territory,in open seas and when waived by the other territorial sovereign.
-
Over pirates. Pirates can be tried anywhere.
Enemies of mankind.
-
In exercise of right to visit and search, under
rules of neutrality.
-
Under the doctrine of hot pursuit. The pursuit
must begin before the vessel leaves the territory of the state.
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Aerial
jurisdiction
-
Freedom to fly across territories without
landing
-
Freedom to land for non-traffic purpose (refer
page. 137)
THE RIGHT OF LEGATION
Diplomatic relations are normally conducted by
the head of state or their foreign representatives.
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Diplomatic Envoys
-
Ambassadors, envoys, ministers,charges de
affaires
Diplomatic Corps
-
Body of the different diplomatic
representatives who have been accredited to the same state.
-
Appointment of envoys shall be agreed upon by
the states as to the class to which heads of missions are to be assigned.
-
President is empowered to appoint ambassadors
with approval of CA. But acceptance of other states representatives is upon his
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exclusive discretion.
Diplomatic
Functions commence upon presentation of credentials upon notification of
arrival and presentation credentials to the foreign minister.
Diplomatic
functions
-
Represent the sending state
-
Protect theinterest of its nationals
-
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Negotiate
-
Ascertaining conditions and developments and
report them
-
Promote friendly relations
Diplomatic
Immunities and Privileges
-
Personal inviolability. Cannot be arrested
unless for instances that he laid his hands to our citizens or caused violence,
he can be preventively restrained.
-
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Immunity from civil, criminal or administrative
jurisdiction. Remedy of receiving state is to ask for recall.
-
Exceptions are real actions relating to private
properties situated in the receiving state; action realting to succession where
the diplomat is the executor or administrator, heir, legatee, action to any
professional or commercial activity unrelated to his mission or functions.
-
Inviolability of diplomatic premises. Premises
may not be entered without consent.
-
Inviolability of archives.
-
Inviolability of communication.
-
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Exemption from testimonial duties- not onliged
to give evidence as a witness.
-
Exemption fromtaxation.
Diplomatic
suite or retinue
-
Above immunities are available as well
todiplomatic, technical, administrative staff and service staff.
-
Not extend to unofficial acts.
-
Private servants if they are not nationals of
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the receiving state,enjoy only exemption from dues and taxes in their income
from the mission.
CONSULS
-
state agents residing abroad for purposes of
commerce and navigation.
-
Do not represent state in political matters
Appointmert
-
Letter patent- commission issued by sending
state
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-
Exequatur- authority given by receiving state.
Immunities and Privileges- official
communication but may be curtailed when prejudicial to receiving state.
Inviolability of
archives.
TREATIES
-
Defined as formal agreement between states
regulating mutual relations under the law of nations.
Requisites
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-
Treaty-making capacity-
all states are with full capacity except except by reason of their status such
as a protectorate.
-
Authorised representatives-
o
(phil0 president is authorized to make treaties
with concurrence of 2/3 of the senate.
o
A state is not bound by a treaty made by an
unauthorized representative, it is void and unenforceable in the municipal laws
of the state but nonetheless is binding in international laws and creates
responsibility and liability to injuries caused by such agreement.
-
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Freedom of vice of consent.
A
treaty forced upon a negotiator is void ab initio. Forced upon the state,
creates vice as well.
-
Lawful subject matter
Example of unlawful matter is dividing the pacific ocean between
states.
-
Compliance with constitutional process.
Treaty making process
-
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Negotiation- when such is finally decided, it
shall be open for SIGNATURE which signifies authentication and good faith but
not the final consent.
-
Ratification- is the final consent. Only the
President of RP has the right to ratify, not the senate. Senate can only
withhold or grant its consent to ratification. If the senate concurs with the
treaty, the president may or may not ratify the treaty.
-
Exchange of instrument of ratification- which
usually signifies effectivity unless a date is therefore provided.
Binding
Effects
-
Only to the contracting parties. But may be
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binding to third parties by accession, those who were not in the negotiation
but were later allowed to sign it.
-
Third parties involved when treaty is only a
formal expression of customary IL or GAPIL.
-
Treaty may expressly extend its benefits to
non-signatories. (most-favored nation clause pg.176)
Pacta-sunt
servanda- treaties must be complied and performed in good faith.
Rebus sic stantibus- justification for
non-performance when the conditions with relation to the parties chamged
overtime and such change is unforeseeable and unexpected not caused by the
party as to create a situation where the exaction of performance becomes
unreasonable.
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-
Applies only to treaties with indefinite
duration.
-
Cannot operate retroactively
-
Must be invoked within a reasonable time
NATIONALITY
AND STATELESSNESS
-
Nationality is the tie that binds an individual
to his stae. Interchangeably used with citizenship, but he latter has a more
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exclusive scope.
-
Acquisition is by jus soli (by place of birth)
or jus sangguinis (by blood), or by naturalization (direct or derivative)
Multiple nationality
-
Occurs with the concurrent application of two
or more municipal laws which may follow jus sanguinis or jus soli.
-
Doctrine of indelible allegiance- two
nationalities by operation of the different laws of the different states..
Loss of nationality- by forfeiture,
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renunciation.
Conflict of nationality laws- the laws of the
country applies for all purposes not minding or in exclusion of the laws of the
other
countries.
-when a person is both American and Filipino, as to the
Philippines, our laws determine his
citizenship, as to America their laws determine her citizenship
When determination is by a third country, the
effective or active nationality rule is applied or the nationality nof the state he is most
closely connected
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Statelessness- a person without any
nationality- renounce to be naturalized and yet naturalization is cancelled and
repatriation was not granted or when jus soli ans jus sangguinis
are not applicable.
-
A wrong suffered by him through an act of the
stae is damnum absque injuria, he has no state hence in theory no other state
is injured
.
TREATMENT OF ALIENS
States may or may not accept aliens (exclusion)
but when they do such aliens have the right of protection by the accepting
state and to be treated fairly.
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Doctrine of state responsibility
-
International delinquency when treatment of the
alien falls below international standards of justice.
-
Failure to make reasonable efforts to prevent
injury to the alien or fails to repair such injury.
Aliens
before charging the state for delinquency and before resorting to diplomatic
protection must first exhaust all available local remedies for his protection.
International
claim for damages may be resolved thru negotiation, or good offices
9conciliation and mediation), arbitration and judicial settlement.
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CALVO
CLAUSE- stipulation by the alie where he waives or restricts his right to
appeal to his own state and limit his remedies to the laws of the local state (contract).
Extradition
-
surrender of a person by one state to another
where he is wanted for prosecution or punishment.
-
Basis is an extradition treaty
-
Principle specialty- person must be tried only
for the crime he was extradited otherwise the extraditing STATE (not the
person) may object to the prosecution.
-
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Political and religious offenders are generally
not subject to extradition.
-
Attentat clause, murder of a royal blood is not
a political offense for purposes of extradition.
-
In the absence of special agreement, the
offense must be done in the territoty or against the demanding state.
-
The act or offense must be punishable in both
states.
SETTLEMENT
OF INTERNATIONAL DISPUTES
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METHODS SHOULD BE PEACEFUL.
Amicable methods
-
Negotiation, inquiry,good offices (conciliation
/ mediation), arbitration,
Hostile methods
-
Retorsions( non-illegal), reprisals (self-help)
WAR
OUTLAWRY OF WAR
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Commencement of War
-must have previous and explicit warning ,
reasoned declaration of war or an ultimatum with conditional declaration.
Effects of outbreak of war
-
Laws of war substitutes laws of peace between
parties
-
Laws of neutrality applies to third party
states
-
Diplomatic relations are terminated
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-
Treaties of politica nature are cancelled
-
Individuals are impressed with enemy character
( nationality test, domiciliary test, activities test)
-
Properties of the enemy within territory are
subject to confiscation.
Conduct
of hostilities
-
Military necessity
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o
Employ any amount and kind of force to compel
submission of the enemy with the least possible loss of lives and destruction
of property.
-
Humanity
o
Should not employ force or any measure not
absolutely necessary for the purpose
-
Chivalry
o
Should not involve treacherous methods, no
spies.
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Belligerent
occupation
-
No transfer or suspension of sovereignty,
although may not be able to exercise at the moment
-
Political laws are abrogated, municipal laws
continue in operation. (the contrary may occur upon an express or direct act by
the belligerent government)
Postliminium
-
Persons and things taken by the enemy are
restored to the original state upon cessation of the occupation
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-
Reinstatement of the authority of the displaced
government.
-
Laws of established government are revived and
all acts by the belligerent contrary to laws are voided.
Non-hostile
intercourse- flag of truce, cartels,passport,safe-conduct,safeguard, license to
trade
Suspension
of hostilities
-
Suspension of arms
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o
Purpose of gathering of the wounded and burial
of the dead
-
Armistice
o
Political purpose, arranging times of peace.
-
Ceasefire, truce, capitulation
The
victor punishes the loser by imposing to it a treaty of peace and obligation to
pay reparations for injuries and losses suffered by the victor.
NEUTRALITY
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A state
is neutral if it does not take part in a war between other states.
Neutrality-
based solely on the attitude of the state.
Neutralization-
agreed upon by states.
Relations
of belligerent states and neutral states
-
Duty to abstain in taking part in the
hostilities
-
Prevent its territory anresources from being
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used
-
Acquiesce
in certain restrictions or limitations that belligerent may find
necessary to impose especially with commerce.
-
War may not be undertaken in neutral
territories without compromising its being neutral.
-
Neutrality is not negated by passage of
warships to territories but may not enter in neutral ports except of stress,
fuel, unseaworthiness and which sojourning is only for 24 hours which may be
extended or shortened depending on circumstance.
-
Prohibited from giving assistance of any form
to belligerent.
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-
Private nationals decision to take part in the
hostilities does not affect neutrality of the state.
-
Belligerent may visit and search neutral
merchant vessels to determine connection with hostilities, if found as such,
they are captured as PRIZE.
ANGARY- a
belligerent may upon payment of just compensation, seize, use or destroy, in
case of urgent necessity for defense or offense, a neutral property found in
its territory, in enemy territory or in the high seas.