Public International Law PDF

Public International Law General Principles Definition Traditional: That branch of public law which regulates the relations of States and of other entities which have been granted international personality. [This definition focuses on subjects, which are entities which possess international person...

Public International Law General Principles Definition Traditional: That branch of public law which regulates the relations of States and of other entities which have been granted international personality. [This definition focuses on subjects, which are entities which possess international personality and with rights and obligations recognized under international law, as against objects, which are persons or things in respect of which rights are held and obligations assumed by the subjects of international law.] Modern: The law that deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relations with persons, natural or juridical [American Third Restatement], Public International Law -> a body of principles, norms and processes which regulate the relations of States and other international persons, and governs their conduct affecting the interests of the international community of States as a whole [Magallona] PIL must be distinguished from: 1) International comity- “practices such as saluting the flags of foreign warships at sea, which are implemented solely through courtesy and are not regarded as legally binding” 2) International morality- a branch of ethics How does PIL operates without an authoritative body? - The International system has no legislature, judiciary, and executive - There is no unified system of sanctions in international law as compared to municipal law - Nevertheless, emphasis must be put on the unique attributes of the international system: - The international system is horizontal, consisting of over 190 independent states, all equal in legal theory (in that they all possess the characteristics of sovereignty) and recognizing no one in authority over them” ▪ In this system, the subject themselves which are the states can create the law ▪ The states may obey or disobey such laws - International law also serves as a common frame of reference among states (Shaw) Why do States still follow international law even without an authoritative body? 1) The element of reciprocity operates in international law 2) There are advantages, or rewards in faithfully observing international law ▪ “It may encourage friendly or neutral states to side with one country involved in a conflict rather than its opponent, and even take a more active role than might otherwise have been the case.” ▪ “It is an appeal to public opinion for support and all states employ this tactic.” 3) There is the “constant formulation of international business in characteristically legal terms Basis of International Law ◦ The Law of Nature School. There is a natural and universal principle of right and wrong, independent of mutual intercourse or compact, which can be discovered and recognized by every individual through the use of his reason and conscience. Since individuals compose the State whose will is but the collective will of the inhabitants, the State also becomes bound by the law of nature. ◦ The Positivist School. The binding force of international law is derived from the agreement of the States to be bound by it. In this context, international law is not a law of subordination but of coordination. ◦ The Eclectic or Grotian School. In so far as it conforms to the dictates of right reason, the voluntary law may be said to blend with the natural law and be, indeed, an expression of it. In case of conflict, the natural law prevails, being the more fundamental law. Sources of International Law Given the wide range of possible sources of international law, the most authoritative enumeration is found in Article 38, Statute of International Court of Justice STATUTE OF THE INTERNATIONAL COURT OF JUSTICE Article 38 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Sources of International Law I. Primary sources of international law* A. International Treaties and Conventions B. International Customs C. General Principles of Law II. Secondary sources/ subsidiary means A. Judicial Decisions B. Writings of publicists * Although the provision is silent on the question of whether the primary sources have the same hierarchic value, by practice Treaties > customs > general principles of law Except: The principle of jus cogens Jus cogens Jus cogens is defined as that part of customary international law which has the status of a peremptory (absolute, uncompromising, certain) norm of international law. A peremptory norm is a norm accepted and recognized by the international community of states as a rule, from which no derogation is permitted and which can be modified only by a subsequent norm having the same character. Examples are slave trade, piracy, and terrorism. See Human Rights Cases vs. Marcos, where it was held that official torture of prisoners/ dissenters was a violation of the principle of jus cogens. Possible examples: those pertaining to genocide, slavery and aggression Primary sources of law A. International Treaties and Conventions whether general or particular, establishing rules expressly recognized by the contesting states Treaties may codify, crystallize or create obligations. Codification- merely complies with existing obligations Crystallization – formalize as an obligation existing State practice Creation – create a treaty for the first time Treaties are governed by Lex posterior- later treaty overrides prior treaty in case of incompatibility Lex specialis- more specific treaty should be followed if in conflict with a more general treaty Treaties may be bilateral or multilateral Primary sources of law A. International Treaties and Conventions Law between parties Treaties are only legally binding upon those States that are parties to them Note that there are instances where States that did not give their consent appear to be bound to a treaty, such are situations wherein that treaty embodies a jus cogens or the provisions thereof achieved the status of customary international law Primary sources of law B. International Customs International Customs, as evidence of a general practice accepted as binding law through persistent usage over a long period of time, Custom is constant uniform usage, accepted as law (Asylum Case 1950) It is necessary, however, that the custom be [i] prevailing practice by a number of states; [ii] repeated over a considerable period of time; and [iii] attended by opinio juris or a sense of legal obligation.  Primary sources of law B. International Customs Two main elements of custom 1. State practice –how states behave in practice that forms basis of customary law. It consists not only of what States say or do but also of what they fail to say or do ◦ Sub-elements of state practice a. General – must be widespread among the States that are particularly involved in the relevant activity (universality is not required) b. Uniform – substantial uniformity of a given practice among States is enough, provided that the practices of the States are extensive and virtually uniform with one another ◦ Consistency and repetition c. Duration - long enough period of time to enable it to crystallize ◦ Instant custom - Some have said that customs could be developed spontaneously, instead of slowly and gradually, 9/11 case but rejected by ICJ no state practice 2. Opinio juris  Primary sources of law B. International Customs Two main elements of custom 1. State practice 2. Opinio juris – constitutes a State’s belief that it is acting due to a legal obligation ◦ This refers to the belief on the part of states that a particular practice is required by law, and not because of courtesy or political expediency ◦ Persistent Objector – one who objects to the practice form the early stages of the practice and maintains the said objection consistently ◦ Exception to the Persistent Objector – when the practice objected to has already attained the status of jus cogens Relationship between Treaty and Custom Generally, treaties and custom are of equal authority in international law and should be considered both binding even if they cover the same issue Treaties - custom In case of conflict between treaty and a custom, treaty would be said to prevail. The exception to this rule is if the custom involved is jus cogens In case of conflict Treaty > custom Except: jus cogens (custom) Treaty may create custom provided it was intended to be norm-creating and such treaty content is supported by widespread and uniform State practice. Primary sources of law C. General Principles of Law General Principles of Law. These are rules derived mainly from natural law, observed and recognized by civilized nations, e.g., res judicata, prescription, pacta sunt servanda and estoppel. See Agustin vs. Edu, where the doctrine of pacta sunt servanda was applied by the Court relative to the validity of the administrative rule requiring the use of early warning device, as part of the Vienna Convention on Road Signs and Signals. These are propositions of law that are so fundamental that they are found in almost all legal systems Purpose – combat the problem of non-liquet (or the absence of any source of law or obligation to point to in order to resolve a conflict) Non liquet (“it is not clear”) Scope – both private law and public law concepts Primary sources of law C. General Principles of Law Examples from ICJ cases Principle of res judicata Principle of estoppel Use of circumstantial evidence Jurisdiction Taking requires compensation General principle of trusts Principle of equity + principle of ex aequo et bono (what is good and just) Sources of International Law I. Primary sources of international law* A. International Treaties and Conventions B. International Customs C. General Principles of Law II. Secondary sources/ subsidiary means A. Judicial Decisions B. Writings of publicists Secondary sources of law A. Judicial Decisions Judicial Decisions, generally of international tribunals, the most authoritative being the International Court of Justice. They are not really sources, but “subsidiary means” for finding what the law is, and whether a norm has been accepted as a rule of international law. The decision of a national court may be used depending upon the prestige and perceived impartiality of the domestic court, not being in conflict with the decisions of international tribunals, and its admissibility in the forum where it is cited. Judicial decisions include judgments of the Permanent Court and the International Court of Justice; and international arbitral awards and rulings of national courts. Secondary sources of law A. Judicial Decisions Binding effect – The decisions of the ICJ have no binding effect except as to the State parties and only in respect of that particular case (Article 59 of the ICJ Statute) Judicial legislation – This should be read within the context of res judicata being generally inapplicable with regard decisions by international tribunals, a rule which the tribunal adopts, when the same is not based on any existing rule at the time of the decision, results – by such decision of the tribunal – new, provisional rule being followed. Judicial consistency – rulings should not deviate from already settled matters except when necessary Judicial courtesy – when ICJ is requested for an opinion regarding a matter that is subject of pending case, if the result will materially affect the decision in the pendind case, it will decline the request for an opinion. Secondary sources of law A. Judicial Decisions Take note that: Stare Decisis does not apply to ICJ decisions; they are not bound by precedent to follow earlier rulings Secondary sources of law B. Writings of Publicists Writings of publicists, which must be fair and unbiased representation of international law by acknowledged authorities in the field. - Books are important as a way of arranging and putting into focus the structure and form of international law and of elucidating the nature, history, and practice of the rules of law. - Publicists bear a great responsibility because of the lack of supreme authorities and institutions in the legal order Other sources of Law a. Soft laws – are mere guidelines of conduct Encompasses a wide variety of non-binding instruments used in contemporary legal relations by states and international organizations. [Boyle] ‘Soft law’ is contrasted with ‘hard law’, which is binding. Examples : 1. Interstate conference declarations, 2. UN General Assembly instruments (UDHR, DPFRAS, etc), 3. Codes of conduct, guidelines and recommendations of international organizations b. Lex mercatoria – part of international commercial law Relationship of International Law and Municipal Law Horizontal v Vertical – International law is “horizontal” by nature whereas domestic or municipal law is “vertical”. ◦ In international law – all States are more or less on equal footing and are generally unable to compel each other to act ◦ Municipal law – exists hierarchically and of subordination ◦ Monist vs. Dualist. ◦ To monists, there is no substantial distinction between international law and municipal law. ◦ But to dualists, the distinctions lie in that ML is issued by a political superior for observance by those under its authority, while IL is not imposed but adopted by states as a common rule of action; ML consists of enactments of the law-making authority, while IL is derived from such sources as international customs, conventions or general principles of law; ML regulates relations of individuals among themselves, while IL applies to relations between states and international persons; violations of ML are redressed through local judicial and administrative processes, while in IL, they are resolved through state-to-state transactions; and breaches of ML entail individual responsibility, while in IL there is collective responsibility Incorporation v Transformation The 1987 Constitution provides two ways through which international law may be adopted in this jurisdiction: incorporation and transformation. Incorporation (Sec. 2, Art. II, CONST.) 1. By mere constitutional declaration, customary international law (or “generally accepted principles of international law”) is deemed incorporated into the national legal system. 2. The application of customary international law in this jurisdiction no longer requires a legislative act (Pharmaceuticals and Health Care Association of the Philippines v. Duque, G.R. No. 173034, Oct. 9, 2007). Incorporation v Transformation The doctrine of incorporation is expressed in Sec. 2, Art. II, Philippine Constitution, as follows: “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations”. See: Kuroda vs. Jalandoni, 83 Phil. 171 (although the Philippines was not a signatory to the Hague and Geneva Conventions, international jurisprudence is automatically incorporated in Philippine law, thus making war crimes punishable in the Philippines); Lo Ching vs. Archbishop of Manila, 81 Phil 601; Borovsky vs. Commissioner of Immigration, G.R. No. L-4362 (1951) (where prolonged detention of a stateless alien pending deportation was deemed illegal, citing the Universal Declaration of Human Rights which is incorporated in Philippine law). Incorporation v Transformation The 1987 Constitution provides two ways through which international law may be adopted in this jurisdiction: incorporation and transformation. Transformation (Sec. 21, Art. VII, CONST.) 1. Under the 1987 Constitution, a treaty’s validity and effectiveness require the concurrence of at least two-thirds of all members of the Senate (Sec. 21, Art. VII). 2. The ratification of the President alone is insufficient for a treaty to form part of the national legal system. 3. It must be noted that transformation is only required for treaties and international agreements. It does not apply to executive agreements (Saguisag v. Ochoa, G.R. No. 212426, Jan. 12, 2016) Incorporation v Transformation The doctrine of transformation requires the enactment by the legislative body of such international law principles as are sought to be part of municipal law. See: Laguna Lake Development Authority vs. Court of Appeals, 231SCRA 292 (where it was declared that Sec. 6, Art. II, Philippine Constitution, which reads: “The state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature”, was taken from the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978 recognizing health as a fundamental human right. Thus, the authority of LLDA to issue a cease and desist order to prevent the pollution of Marilao River was upheld on the basis of the principle of necessary implication^. Conflict between international law and municipal law a. On the domestic sphere, with a local court deciding: ◦ If the conflict is with the Constitution: uphold the Constitution. [See Sec. 5(2)(a), Art. VIII, Philippine Constitution, which provides that the Supreme Court has the power to declare a treaty or executive agreement unconstitutional.] ◦ In Secretary of Justice v. Judge Lantion, G.R. No. 139465, January 18, 2000, it was held that in states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the Constitution. ◦ If the conflict is with a statute: The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Conflict between international law and municipal law b. On the international sphere, with an international tribunal deciding: international law is superior to municipal law, because international law provides the standard by which to determine the legality of a State’s conduct. ◦ Superiority – International law is superior to municipal law, because international law provides the standard by which to determine the legality of a State’s conduct ◦ Application of the Vienna Convention on the Law of Treaties (VCLT) – “a party may not invoke the provision of its internal law as justification for its failure to perform a treaty (Article 27, VCLT) ◦ The mirror principle – pronouncements by national courts on human rights should match the rulings given by international tribunals. SUBJECTS OF INTERNATIONAL LAW Distinction between subject and object of international law. A subject is an entity that has rights and responsibilities under international law; it can be a proper party in transactions involving the application of the law of nations among members of the international community. ◦ The subjects of international law are: states, colonies and dependencies, mandates and trust territories, the Holy See (Vatican City), the United Nations, belligerent- communities, international administrative bodies, and, to a certain extent, individuals. An object is a person or thing in respect of which rights are held and obligations assumed by the subject; it is not directly governed by the rules of international law; its rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency Distinction between subject and object of international law. Purpose of distinction – to denote which entities are ultimately given legal personality in the international arena States ◦ Defined. A state is a group of people, living together in a fixed territory, organized for political ends under an independent government, and capable of entering into international relations with other states. States ◦ Elements: ◦ People. A group of individuals, of both sexes, living together as a community. They must be sufficient in number to maintain and perpetuate themselves. ◦ A casual gathering (stranded), or a society of pirates would not constitute a state. ◦ Territory. The fixed portion on the earth’s surface occupied by the inhabitants. It may be as large as China, or as small as Monaco (1/2 sq. mile) or San Marino (38 sq. miles). ◦ - substantial compliance, no size requirement ◦ Government. Must be organized, exercising control over and capable of maintaining law and order within the territory. It can be held internationally responsible for the acts of the inhabitants. The identity of the state is not affected by changes in government. ◦ Capacity to enter into Relations with Other States. This includes freedom from outside control in the conduct of its foreign (and internal) affairs. Non self-governing territories – these include protectorates, trusteeship territories, principalities, and various colonies which have a restricted amount of control over their relation with other states. - though possessed with international personality, they are not to be considered as States since their affairs to a certain but substantial extent are being controlled by another entity. Exception: through a valid exercise of external self-determination is able to seize control of its affairs and is now free to chart its own future, that territory, which was formerly non-self-governing, may possibly ne considered a State. Other suggested elements of a State ◦ Civilization. ◦ Recognition: The act by which a state acknowledges the existence of another state, a government or a belligerent community, and indicates its willingness to deal with the entity as such under international law. [Note: The importance of recognition has been substituted to a large extent by the act of admission to the United Nations. UN members must treat the new member as an equal partner in all matters relating to the application of the UN Charter. However, recall that the UN General Assembly refused recognition to Transkei (South Africa), and the UN Security Council called upon all states not to recognize Southern Rhodesia. ◦ OtheWillingness to Observe International Law ◦ r possible elements – permanence, willingness to observe international law, and existence of legal order within the State. (Crawford) Theories on Recognition: Constitutive (Minority view): Recognition is the act which constitutes the entity into an international person. Under this view, recognition is compulsory and legal; it may be compelled once the elements of a state are established. Declarative (Majority view): Under the majority view, recognition merely affirms an existing fact, like the possession by the state of the essential elements. It is discretionary and political. Basic Rules on Recognition: It is a political act and mainly a matter of policy on the part of each state; it is discretionary on the part of the recognizing authority; and it is exercised by the political (executive) department of the state. Thus, the legality and wisdom of recognition is not subject to judicial review.  Requirements for Recognition of Government The government is stable and effective, with no substantial resistance to its authority; the government must show willingness and ability to discharge its international obligations; and the government must enjoy popular consent or approval of the people. 1. Tobar/Wilson Doctrine: precludes recognition of any government established by revolutionary means until constitutional reorganization by free election of representatives. 2. Stimson Doctrine: No recognition of a government established through external aggression. 3. Estrada Doctrine: Since recognition has been construed as approval (and non- recognition, disapproval) of a government established through a political upheaval, a state may not issue a declaration giving recognition to such government, but merely accept whatever government is in effective control without raising the issue of recognition. Dealing or not dealing with the government is not a judgment on the legitimacy of the said government. [Note: Recall the recognition of the People’s Republic of China, based on the one China policyj  Kinds of Recognition May be express or implied: may also be: 1. De facto: Extended by the recognizing state which believes that some of the requirements for recognition are absent. The recognition is generally provisional and limited to certain juridical relations; it does not bring about full diplomatic intercourse and does not give title to assets of the state held/situated abroad. 2. De jure: Extended to a government fulfilling the requirements for recognition. When there is no specific indication, recognition is generally considered as de jure. The recognition is relatively permanent; brings about full diplomatic intercourse and observance of diplomatic immunities; and confers title to assets abroad. See: Lawyers League for a Better Philippines vs. Corazon Aquino, G.R. No. 73748, May 22, 1986. Effects of Recognition: Diplomatic relations; right to sue in the courts of the recognizing state (see Banco Nacional de Cuba vs. Sabbatino, 376 U.S. 398, where unfriendly relations or the lack of reciprocity was held immateriaiy; immunity from jurisdiction; entitlement to property within the recognizing state; retroactive validation of the acts of the recognized state/ government, such as acts of state, and thus, sovereign immunity covers past, present and future acts Recognition of Belligerency; Conditions. The usual conditions for the recognition of the status of belligerency are: organized civil government having control and supervision over the armed struggle; serious and widespread struggle with the outcome uncertain; occupation of a substantial portion of the national territory; and willingness on the part of the rebels to observe the rules/ customs of war. [Note: (1) Absence of any of the foregoing conditions will result merely in insurgency which is rarely recognized. (2) Recognition may be either express or implied; the proclamation by the parent state of a blockade of a port held by the rebels is implied recognition of belligerency; so is the proclamation of neutrality by a third statej - Effects of Recognition of Belligerency. Responsibility for acts of rebels resulting in injury to nationals of the recognizing state shall be shifted to the rebel government; the legitimate government recognizing the rebels shall observe the laws of war in conducting hostilities; third states recognizing the belligerency shall maintain neutrality; and recognition is only provisional (for the duration of the armed struggle) and only for the purpose of the hostilities. Creation of States. By revolution, unification, secession, assertion of independence, agreement and attainment of civilization. Extinction of States. By extinction or emigration en masse of its population, loss of territory, overthrow of government resulting in anarchy. Principle of State Continuity. The state continues as a juristic being notwithstanding changes in its circumstances, provided only that such changes do not result in the loss of any of its essential elements. See Sapphire Case where, after Emperor Louis Napoleon filed a damage suit on behalf of France in an American court, he was deposed. Nonetheless, the action was not abated and could continue upon recognition of the duly authorized representative of the new government of France. ◦ Succession of States. May be universal or partial. Consequences are: political laws are abrogated [People vs. Perfecto, 43 Phil. 887] while municipal laws remain in force [Vilas vs. City of Manila, 229 U.S. 345]; treaties are discontinued, except those dealing with local rights and duties, such as those establishing easements and servitudes; all rights of the predecessor state are inherited, but successor state can assume and reject liabilities at its discretion. [Note: In Haile Selassie vs. Cable Wireless, it was ruled that a conquered state has no personality in international lawj ◦ Succession of Governments. The integrity of the State is not affected; the state continues as the same international person except that its lawful representative is changed. The consequences are; all rights of the predecessor government are inherited by the successor; and where the new government was organized by virtue of constitutional reform duly ratified in a plebiscite, all obligations of the predecessor are likewise assumed; however, where the new government is established through violence, the new government may lawfully reject purely personal or political obligations of the predecessor, but not those obligations contracted by it in the ordinary course of official business. Classes of States. Independent. Has freedom to direct and control foreign relations without restraint from other states. May be: ◦ Simple: Single central government, with power over internal and externa! affairs. ◦ Composite: Two or more sovereign states joined together to constitute one international person, which may be:. ◦ Real Union: two or more states are merged under a unified authority so that they form a single international person through which they act as one entity. The states retain their separate identities, but their respective international personalities are extinguished and blended in the new international person. E.g., the former United Arab Republic, with Egypt and Syria. ◦ Federal Union: combination of two or more states which, upon merger, cease to be states, resulting in the creation of a new state with full international personality to represent them in their external relations as well as a certain degree of power over their domestic affairs and their inhabitants. Authority over internal affairs: divided between federal authorities and the member-states; authority over external affairs: handled solely by federal authorities. ◦ Dependent: an entity which, although theoretically a state, does not have full freedom in the direction of its external affairs, such as a protectorate (which is established at the request of the weaker state for the protection by a strong power, e.g., Panama, Andorra, Monaco) or a suzerainty (which is the result of a concession from a state to a former colony that is allowed to be independent subject to the retention by the former sovereign of certain powers over the external affairs of the latter, e.g., Bulgaria and Rumania, both suzerainties of the Sultan of Turkey by virtue of the Treaty of Berlin of 1878). ◦ Neutralized: whose independence and integrity are guaranteed by an international treaty on the condition that such state obligates itself never to take up arms against any other state (except in self-defense), or to enter into an international obligation as would indirectly involved it in war, e.g., Switzerland, Austria. The Vatican City and the Holy See. ◦ The Holy See has all the constituent elements of statehood (people: less than 1000 individuals; territory: 108.7 acres; government with the Pope as head; and independence by virtue of the Lateran Treaty of February 11, 1929, which constituted the Vatican as a territory under the sovereignty of the Holy See). It has all the rights of a state, including diplomatic intercourse, immunity from foreign jurisdiction, etc.. ◦ See Holy See vs. del Rosario, 238 SCRA 524, where the Supreme Court distinguished Vatican City from the Holy See. The Holy See is an international person with which the Philippines had diplomatic ties since 1957. Non-state entities Colonies and Dependencies. Acolony is a dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit another country, but remain subject to the mother State. A dependency is a territory distinct from the country in which the supreme sovereign power resides, but belongs rightfully to it, and subject to the Igws and regulations which the sovereign may prescribe. [Note: Theoretically, they belong to the parent state and, thus, are without any personality in the international community. However, on occasions, colonies have been allowed to participate in their own right in certain international undertakings, e.g., the Philippines was admitted as a signatory to the UN CharterJ Territories under international control or supervision. These are non-self-governing territories which have been placed under international supervision or control to insure their political, economic, social and educational advancement. An example are mandates, which were former territorial possessions of the states defeated in World War I and placed under the control of the League of Nations. Many of these mandates became trust territories placed under the Trusteeship Council of the United Nations. ◦ A condominium is a territory jointly administered by two states. International Organizations Example United Nations - The principal objectives of the UN are the prevention of war, the maintenance of international peace and security, the development of friendly relations among the members of the international community, the attainment of international cooperation, and harmony in the actions of nations International Administrative bodies International Administrative Bodies. Certain administrative bodies, created by agreement among states, may be vested with international personality, provided that they are non-political and are autonomous and not subject to control by any state, e.g., ILO, FAO, WHO. ◦ International Law Commission. This was established by the UN General Assembly in 1947 to promote the codification and progressive development of international law. One of the functions of the Commission is to produce Draft Articles which may codify certain customary international law or aid in its development. Among these, of great significance, is the Draft Articles on State Responsibility, which are often considered as embodying generally customary international law on the matter. Individuals Individuals. Although traditionally, individuals have been considered merely as objects, not subjects, of international law, they have also been granted a certain degree of international personality under a number of international agreements, some of which are: [a] UN Charter provision on “faith in fundamental human rights, dignity and worth of the human person, and in the equal rights of men and women”; [b] Universal Declaration of Human Rights provision on “the inherent dignity and the equal and inalienable rights of all members of the human family”; [c] Some treaties, e.g., the Treaty of Versailles, which confer on individuals the right to bring suit against States before national or international tribunals; [d] The need for States to maintain an international standard of justice in the treatment of aliens; [e] The Genocide Convention, which condemns the mass extermination of national, ethnic, racial or religious groups; [f] The 1930 Hague Convention with its rules to prevent the anomalous condition of statelessness, and the 1954 Covenant Relating to the Status of Stateless Persons, which grants stateless individuals certain basic rights; and [g] The 1950 European Convention on Human Rights and Fundamental Freedoms, which grants private associations and individuals the right to file complaints before the European Court on Human Rights. FUNDAMENTAL RIGHTS OF STATES FUNDAMENTAL RIGHTS OF STATES ⦁ Existence and Self-Preservation. ⦁ Right to Sovereignty and Independence. ⦁ The Right of Equality ⦁ State Immunity Existence and Self-Preservation By far the most basic and important right. Art. 51 of the UN Charter recognizes the right of the state to individual and collective self- defense (through regional arrangements) if an armed attack occurs against such state, until the Security Council has taken measures necessary to maintain international peace and security. However, the right may be resorted to only upon a clear showing of grave and actual danger, and must be limited by necessity. It is eventually the Security Council which determines whether or not an “armed attack” has taken place. Self-defense Criteria for self-defense (part 3, Chapter II of the 2001 Draft Articles of State Responsibility) 1. Proportionality – The force used in self-defense must be proportional to the seriousness of the attack and danger being defended against 2. Necessity – This permits no scope for discretion (Oil Platforms Case) ◦ Note that: Self-defense can only be undertaken in response to an “armed attack,” which can be committed only by the armed forces if the latter achieved a “threshold scale.” Aggression The use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in other any manner inconsistent with the UN Charter. The first use of armed force by a State in contravention of the UN Charter is prima facie evidence of an act of aggression. List of acts of considered as aggression according to Article 3, UN General Assembly Resolution 3314 Article 3. Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; List of acts of considered as aggression (cont’d) (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its temtory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. Other principles: No consideration of whatever nature, political, economic or military, can justify aggression; a war of aggression is a crime against international peace which will give rise to international responsibility; no territorial acquisition or special advantage resulting from aggression shall be recognized as lawful. But all these are without prejudice to the right of self-determination. freedom and independence of peoples deprived of such rights, nor the right of these peoples to struggle to that end and to seek and receive support. Right to Sovereignty and Independence. Sovereignty is the totality of the powers, legal competence and privileges of a state arising from customary international law, and not dependent on the consent of another state. Independence is the freedom to conduct foreign relations without outside control. The right to independence is a natural aspiration of peoples, but it is not an absolute freedom. Valid restraints may consist in the obligation to observe the rights of others; treaty stipulations; and obligations arising from membership in international organizations. Intervention. Act by which a states interferes in the domestic or foreign affairs of another state through the use of force or threat of force (whether physical, political or economic). See Nicaragua vs. US, Communique 86/8, June 27, 1986, where the US was found guilty of intervention in the affairs of Nicaragua for sending troops to Nicaragua to aid the contras, inasmuch as there was no armed attack against the latter. Note that protest or demand for rectification or reparation does not comprise intervention. Thus, the act of President Clinton in discouraging Americans from investing in Burma was not considered as intervention. Intervention used to be justified by various reasons, from preservation of the balance of power, pre-emptive self-defense, enforcement of treaty obligations, collection of debts (later prohibited by the Drago Doctrine embodied in the Hague Convention of 1907, which provided that the contracting powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due its nationals). This was weakened by the Porter Resolution.... But Under contemporary international law, as a rule, intervention is not allowed. International disputes have to be settled by peaceful means. Under Art. 2, UN Charter, even the UN is precluded from intervening in matters essentially within the domestic jurisdiction of a state, unless necessary to remove and prevent threats to the peace, breaches or acts of aggression. A 1965 UN General Assembly resolution states that no state has the right to intervene, directly or indirectly, in the affairs of another. At present, intervention is allowed only as an act of individual or collective self-defense in response to an armed attack; pursuant to treaty stipulations; or with prior UN authorization. The Right of Equality Art. 2, UN Charter, states that the organization is based on the principle of sovereign equality of all its members. But what is really guaranteed is legal — or sovereign — equality: “equal in law, rights of sovereignty, personality, territorial integrity and political independence respected by others”. This is exemplified in the General Assembly where each member is entitled to one vote; but there may be no equality in fact, e.g., voting in the UN Security Council. Act of State doctrine Every sovereign state is bound to respect the independence of every other state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves [Underhill v. Hernandez, 168 U.S. 250]. Act of State doctrine A state should not inquire into the legal validity of the public acts of another state done within the territory of the latter. For this purpose, considerations such as motive are immaterial. Thus, in Underhill vs. Hernandez, the US court refused to inquire into the acts of Hernandez (a Venezuelan Military Commander whose government was.later recognized by the US) in a damage suit brought in the US by an American who claimed that he had been unlawfully assaulted, coerced and detained by Hernandez in Venezuela. However, in the Sabbatino case the U.S. court said that no court in the US should decline because the act of state doctrine seems to make a determination on the validity of the confiscation of property by a foreign state a violation of the principle of international law. Doctrine of State Immunity. As a consequence of independence, territorial supremacy and equality, a state enjoys immunity from the exercise of jurisdiction (legislative, executive or judicial) by another state, unless it has given consent, waived its immunity, or voluntarily submitted to the jurisdiction of the court concerned. Neither may its public property be attached or taxed, nor its public vessels be boarded, arrested or sued. This is based on the principle of par in parem non habet imperium. The state’s immunity extends to the Head of State who is the personification of the state [See Mighell vs. Sultan ofJohore, 1 QB 149, where the Sultan, who was certified by the British Minister of the Crown as having the status of a head of state, was held to be immune from the jurisdiction of English courts]. Ships foreign merchant vessels and other foreign ships operated for commercial purpose “immunity” from molestation while within another State’s territorial waters which stems from the right of innocent passage Not immune from suit if they commit a criminal act while in that jurisdiction Warships and other government ships operated for non-commercial purposes Covered by State immunity State Organs and Other state entities The legislative, executive and judicial branches of a State enjoy immunity  Immunity from jurisdiction of municipal courts 1. State immunity ◦ Extends to heads of states ◦ Limitations: immunity may not apply where the Head of State has been arrested or detained pursuant to a case before an international tribunal ◦ Former heads of states are said to possess only functional immunity ◦ Immunity rationae materiae is immunity for public acts done while still in office ◦ Immunity rationae personae is immunity for private acts while still in office 2. Diplomatic immunity ◦ Applies to diplomatic agents Status under International law The principle of State immunity is a recognized principle of international law Should a State fail to apply the principle of immunity when appropriate, it will be held responsible under international law. Application of the principle of immunity 1. Restrictive Application 2. Absolute immunity 1. Restrictive application of the doctrine. This immunity, however, is recognized only with respect to sovereign or public acts of the state, and cannot be invoked with respect to private or proprietary acts. [See U.S. vs. Ruiz, 136 SCRA 487, where the Supreme Court classified contracts entered into by the state into those in jure imperii and those in jure gestionis. 2. Absolute immunity There is an evolving school of thought which claims that the distinction between jure imperii acts and jure gestionis acts should be abolished. Resulting consequence: all acts of the State would now be considered immune. Immunity extends to diplomatic personnel to the United Nations its organs and specialized agencies, and to international organizations. The accepted justification for this is that the functions they perform are of a level of importance so as to merit the organization and their staff privileges and immunities that would ultimately enable them to perform their tasks more efficiently. Waiver of immunity The state is deemed to have waived its immunity when it gives consent at the time the proceeding is instituted; when it takes steps relating to the merits of the case before invoking immunity; when, by treaty or contract, it had previously given consent; or when, by law or regulation in force at the time the complaint arose, it has indicated that it will consent to the institution of the proceedings. Under Philippine jurisprudence, the doctrine of State Immunity can only be validly invoked where it is ultimately the State, and not the official being charged, who has to bear the consequences. Jurisdiction JURISDICTION The power or authority exercised by a State over land, persons, property, transactions and events. The basic question of jurisdiction centers upon which State has sovereignty or legal control over land, persons, ships at sea, airships in flight, property, transactions or events, in various situations. Bases of Jurisdiction Territorial Principle The State may exercise jurisdiction only within its territory. Exceptionally, it may have jurisdiction over persons and acts done outside its territory depending on the kind of jurisdiction it invokes. While there is no territorial limit on the exercise of jurisdiction over civil matters, a State, as a general rule, has criminal jurisdiction only over offenses committed within its territory, except over; (i) continuing offenses; (ii)acts prejudicial to the national security or vital interests of the State; (iii)universal crimes; and (iv)offenses covered by special agreement (although this is now obsolete). Nationality Principle The State has jurisdiction over its nationals anywhere in the world, based on the theory that a national is entitled to the protection of the State wherever he may be, and thus, is bound to it by duty of obedience and allegiance, unless he is prepared to renounce his nationality. This applies to civil matters, e.g., Art. 15, Civil Code, which provides: “Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad”; and also in taxation. The principle does not, however, apply to criminal offenses; but see Biackmer v. U.S., 284 U.S. 421, where the US Supreme Court upheld a judgment for contempt against an American who refused to return from France to testify in the U.S. Protective Principle State has jurisdiction over acts committed abroad (by nationals or foreigners) which are prejudicial to its national security or vital interests. See Art. 2, Revised Penal Code, which speaks of Philippine criminal jurisdiction over; (i) offenses committed on board a Philippine ship or airship; (ii) forgery/counterfeiting of Philippine coins or currency notes; (iii)introduction into the Philippines of such forged or counterfeit coins or notes; (iv)offenses committed by public officers or employees in the exercise of official functions; and (v) crimes against national security and the law of nations. Principle of Universality State has jurisdiction over offenses considered as universal crimes regardless of where committed and who committed them. Universal crimes are those which threaten the international community as a whole and are considered criminal offenses in all countries e.g., piracy jure gentium, genocide, white slave trade, hi-jacking, terrorism, war crimes. Jurisdiction under the universality principle can be applied through treaties Ex. UN Convention on the Prohibition Against Torture, 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aircraft Principle of Passive Personality State exercises jurisdiction over crimes against its own nationals even if committed outside its territory. This principle may be resorted to if the others are not applicable. Deemed as the most controversial among the principles of jurisdiction.  Exemptions from Jurisdiction 1. Doctrine of State Immunity 2. Act of State Doctrine 3. Diplomatic Immunity 4. Immunity of the United Nations 5. Foreign an merchant vessels exercising the right of innocent passage or arrival under distress 6. Foreign armies passing through or stationed in the territory with the permission of the State 7. Warships and other public vessels of another State operated for non- commercial purposes Doctrine of State Immunity As a consequence of independence, territorial supremacy and equality, a state enjoys immunity from the exercise of jurisdiction (legislative, executive or judicial) by another state, unless it has given consent, waived its immunity, or voluntarily submitted to the jurisdiction of the court concerned. Neither may its public property be attached or taxed, nor its public vessels be boarded, arrested or sued. This is based on the principle of par in parem non habet imperium. The state’s immunity extends to the Head of State who is the personification of the state Act of State Doctrine A State should not inquire into the legal validity of the public acts of another State done within the territory of the latter. This doctrine is more of a choice of law rule, and may be raised by private parties. But note Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, where it was stated that “no court in the US should decline because the act of state doctrine seems to make a determination on the validity of the confiscation of property by a foreign State in violation of the principles of international law”. Diplomatic Immunity Part of customary international law which grants immunity to diplomatic representatives, in order to uphold their dignity as representatives of their respective States and to allow them free and unhampered exercise of their functions. There are varying rules for different diplomats. The procedure for claiming this immunity starts with a request by the foreign State for an executive endorsement by the Department of Foreign Affairs, and the determination made by the Executive Department is a political question which is conclusive on Philippine courts. The head of State enjoys personal immunity from the jurisdiction of another State [Mighell v. Sultan ofJohore, 1 QB 149]. Read the 1961 Vienna Convention on Diplomatic Relations, which provides, among others, the right of the foreign State to acquire property in the receiving State for its diplomatic mission (Art. 20 & 22), as well as the immunity of the diplomatic envoy from civil jurisdiction of the receiving State over any real action relating to immovable property which the envoy holds on behalf of the sending State for purposes of the mission. See also Holy See v. Rosario, 238 SCRA 524, where it was held that the sale of the parcel of land was not commercial in nature as it was not for profit, but that the transaction was clothed with governmental character. Immunity of the United Nations, its Organs. Specialized Agencies, Other International Organizations, and its Officers. See Art. 105, UN Charter, which provides that the “organization, officers, representatives of members, (who) shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions”. The reason for the grant of privileges and immunities to international organizations, its officials and functionaries, is to secure them legal and practical independence in fulfilling their duties Immunity of the United Nations, its Organs. Specialized Agencies, Other International Organizations, and its Officers. Under the Convention on the Privileges and Immunities of the United Nations, the immunities enjoyed are with respect to: legal process relative to words spoken or written and acts in their official capacity; taxation on salaries and emoluments; national service obligations; immigration, restriction and alien registration (family members enjoy this immunity); and generally, the same immunities as are enjoyed by diplomats of comparable rank. Immunity of the United Nations, its Organs. Specialized Agencies, Other International Organizations, and its Officers In World Health Organization v. Aquino, 48 SCRA 242, the search warrant issued for alleged violation of customs laws was ordered quashed, as the WHO official was entitled to the privileges and immunities of diplomatic envoys. In SEAFDEC v. NLRC, 241 SCRA 580, it was held that SEAFDEC, as an international agency, enjoys immunity from the legal writs and processes of the Philippines, because subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially in behalf of its member States. In Callado v. IRRI, 244 SCRA 211, it was declared that IRRI is immune from suit, because Art. 3, P.D. 1620, grants to IRRI the status, prerogatives, privileges and immunities of an international organization. Foreign merchant vessels exercising the right of innocent passage or arrival under stress Innocent passage is 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 case of force majeure, such as pursuit by pirates. Foreign armies passing through or stationed in the territory with the permission of the State. Warships and other public vessels of another State operated for non- commercial purposes. They are generally immune from local jurisdiction under the fiction that they are “floating territory” of the flag State [Schooner Exchange v. MacFaddon, 7 Cranch 116], Their crew members are immune from local jurisdiction when on shore duty, but this immunity will not apply if the crew members violate local laws while on furlough or off-duty. Jurisdiction over land territory. Save for the exemptions mentioned above, the State exercises jurisdiction over everything found within its terrestrial domain. Jurisdiction over maritime territory Over internal waters. The same jurisdiction as over the land area, since the internal waters are deemed assimilated in the land mass. In the case of foreign merchant vessels docked in a local port or bay, the coastal State exercises jurisdiction in civil matters, but criminal jurisdiction is determined according to the ⦁ English Rule: The coastal State shall have jurisdiction over all offenses committed on board the vessel except those which do not compromise the peace of the port [applicable in the Philippines; see U.S. v. Look Chaw, 18 Phil 573; People v. Wong Cheng, 46 Phil 729]; or ⦁ French Rule: flag State shall have jurisdiction over all offenses committed on board the vessel except those which compromise the peace of the port. Over archipelagic waters. Same rule as in internal waters, save for innocent passage of merchant vessels through archipelagic sea lanes. Over the territorial sea. Criminal jurisdiction over foreign merchant vessels shall be determined by the application of either the English Rule or the French Rule. Innocent passage and involuntary entrance are recognized exceptions, provided that in case of involuntary entrance, the distress on the vessel must be real. Over the contiguous zone. As indicated above, under the UN Convention on the Law of the Sea, the coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration and sanitary regulations, and punish the said infringement Over the exclusive economic zone. Under the UN Convention on the Law of the Sea, the coastal State has sovereign rights over the exclusive economic zone for purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the sea-bed, the sub-soil and the superjacent waters, as well as the production of energy from the water, currents and winds. Other States shall have the freedom of navigation and over-flight, to lay submarine cables and pipes, and other lawful uses. Over the continental shelf. The coastal State enjoys the right of exploitation of oil deposits and other resources in the continental shelf. In case the continental shelf extends to the shores of another State, or is shared with another State, the boundary shall be determined in accordance with equitable principles. Over the high seas. Jurisdiction may be exercised by the State on the high seas over the following: Its vessels. The flag State has jurisdiction over its public vessels wherever they are, and over its merchant vessels on the high seas. Pirates. Pirates are enemies of all mankind; they may be captured on the open seas by the vessels of any State, to whose territory they may be brought for trial and punishment. Those engaged in illicit traffic in drugs and slave trade. All States shall cooperate in the suppression of illicit traffic in narcotics and slave trade. Of late, the same rule should apply with respect to terrorists. Likewise, all States shall cooperate in the suppression of unauthorized broadcasting from the high seas, except in case of distress calls. In the exercise of the right to visit and search. Under the laws of neutrality, the public vessels or aircraft of a belligerent State may visit and search any neutral merchant vessel on the open seas and capture it if found to be engaged in activities favorable to the other belligerent. Jurisdiction over maritime territory Over the high seas. Jurisdiction may be exercised by the State on the high seas over the following: Under the doctrine of hot pursuit. If an offense is committed by a foreign merchant vessel within the territorial waters of the coastal State (or if the coastal State has good reason to believe that such an offense had been committed), the said State’s vessels (warships, military aircraft, other ships cleared and identifiable as being in government service and authorized to that effect) may pursue the offending vessel into the open seas and, upon capture, bring it back to its territory for punishment. However, to be lawful, the pursuit must have begun before the offending vessel has left the territorial waters or the contiguous zone of the coastal State; the pursuit must be continuous and unabated; and it ceases as soon as the ship being pursued enters the territorial sea of its own, or of a third, State. This right may be exercised with respect to violations committed in the exclusive economic zone or on the continental shelf installations. Jurisdiction over other territories (extra-territorial jurisdiction) A State may, by virtue of customary or conventional law, extend its jurisdiction to territory not within its sovereignty in the following cases; Assertion of personal jurisdiction over its national abroad. By virtue of its relations with other States, as when it establishes a protectorate, or a condominium, or administers trust territory, or occupies enemy territory in the course of war. As a consequence of waiver of jurisdiction by the local State over persons and things within the latter’s territory, e.g., foreign army stationed in the local State. Through the principle of exterritoriality, exemption of persons and things from the local jurisdiction on the basis of international custom. Distinguish this from the principle of extra-territorialitv. wherein exemption from jurisdiction is based on treaty or convention. The latter principle is discredited. Through the enjoyment of easements and servitudes. See the Portuguese Enclave Case, where it was held that Portugal had the right of passage through Indian territory. The Rome Statute of the International Criminal Court (ICC) Individual liability – Note that in the ICC, it is the individual and not the State that is on trial. As such, the individual becomes a subject of international law during such situations. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with the ICC Statute with respect to the following crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. The Rome Statute of the International Criminal Court (ICC) The Philippines signed the ICC statute on December 28, 2000 and ratified it in 2011. However, on March 17, 2018, it then notified the ICC of its withdrawal from the Rome Statute, which became effective on March 17, 2019. Nevertheless, at least according to the ICC, pursuant to Article 127.2 of the Statute and based on a prior ICC ruling in the situation in Burundi, the ICC claims to retain its jurisdiction over crimes committed during the time in which the Philippines was a party to the Statute and may exercise this jurisidiction even after the withdrawal became effective. UNITED NATIONS UN as a Subject of International Law General rule: International organizations have special personality. The status and powers of an international organization are determined by agreement and not by general or customary international law. Exception: the United Nations has objective international personality. Its personality is binding on the whole international community, including States who are not UN members. UN has 6 principal organs 1. Security Council 2. General Assembly 3. Economic and Social Council 4. Trusteeship Council 5. Secretariat 6. International Court of Justice UN Specialized Agencies 1. International Labour Organization – established in 1919 to protect and extend the rights of workers 2. UNESCO – the UN Educational and Scientific and Cultural Organization (world heritage sites) 3. World Health Organization – established in 1946 with the aim of unifying the standards of healthcare 4. World Bank – emerged from the Bretton Woods Conference of 1944 to encourage financial investments 5. International Monetary Fund – works closely with the World Bank to assist monetary cooperation and increase world trade. A state can only be a member of World Bank if it is an IMF member The UN Charter This is the closest to a constitution that basically governs the relations of international persons. Technically, it is a treaty, a contract which the parties must respect under the doctrine of pacta sunt servanda, although it actually applies even to non- member States, at least in so far as “may be necessary for the maintenance of international peace and security”. It consists of 111 articles, besides the Preamble and the concluding provisions. Annexed to it is the Statute of the International Court of Justice. Purposes The principal objectives of the UN are the prevention of war, the maintenance of international peace and security, the development of friendly relations among the members of the international community, the attainment of international cooperation, and harmony in the actions of nations. Membership Classes: Based on the manner of admission, members may be original or elective. Qualifications: member must be a State, peace loving, accept the obligations under the Charter, and be able and willing to carry out these obligations. Admission: decision of 2/3 of those present and voting in the General Assembly upon recommendation of at least nine (including all the permanent) members of the Security Council.  Suspension: the same vote required as in admission. When suspended, a member cannot participate in meetings of the General Assembly; cannot be elected to or continue to serve in the Security Council, the Economic and Social Council, the Trusteeship Council; but nationals may continue serving in the Secretariat and the International Court of Justice, although a member is still subject to discharge its obligations under the Charter. To lift the suspension, a qualified majority vote of the Security Council is needed. Expulsion: 2/3 vote of those present and voting in the General Assembly, upon recommendation of a qualified majority of the Security Council, on grounds of persistently violating the principles contained in the Charter. Withdrawal. It was intended that no provision on withdrawal be included in the Charter, although there is actually no compulsion for continued membership if the member feels constrained to withdraw due to exceptional circumstances. On March 1, 1965, Indonesia tried to withdraw in protest over Malaysia’s election as member of the Security Council, but it appeared later that it was merely a cessation of cooperation, not withdrawal — and the UN allowed resumption of full membership of Indonesia on September 28, 1966. UN General Assembly Parliamentary body of the UN and consists of representatives of the member States. Except for internal matters such as the budget, the GA cannot bind its members. It is not a legislature in that sense and its resolutions are purely recommendatory. Such resolutions, however, may be binding if they reflect customary international law and they are significant as state practice that may lead to the formation of a new customary rule. The GA is the debating chamber of the UN and can make recommendations with respect to questions relating to international peace, provided that Security Council is not dealing with that particular matter. UN General Assembly Consists of all the members of the organization, each of which is entitled to send not more than 5 representatives and 5 alternates. Each member has only one vote. Its functions may be classified into [i] Deliberative, like initiating studies and making recommendations for the development of international law, etc.; [ii] Supervisory, such as receiving and considering annual and special reports from other organs of the UN; [iii] Financial, as the consideration and approval of the budget of the organization, the apportionment of expenses, etc.; [iv] Elective, as in the election of the nonpermanent members of the Security Council, all members of the EcoSoc, etc.; and [v] Constituent, such as the admission of members and the amendment of the Charter. Its regular session is held once a year, and it may hold special sessions called by the Secretary General at the request of the Security Council or a majority of the members. On important questions, e.g., peace, security, membership, elections, trusteeship system, budget, the vote of 2/3 of the, members present and voting is required; on other questions, a simple majority is sufficient. To classify a question as important, the vote required is a simple majority. Article 10, UN Charter The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters. Article 11, UN Charter 1. The General Assembly may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both. 2. The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion. 3. The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security. 4. The powers of the General Assembly set forth in this Article shall not limit the general scope of Article 10. Article 13, UN Charter 1. The General Assembly shall initiate studies and make recommendations for the purpose of: a. promoting international co-operation in the political field and encouraging the progressive development of international law and its codification; b. promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. c. The further responsibilities, functions and powers of the General Assembly with respect to matters mentioned in paragraph 1 (b) above are set forth in Chapters IX and X. Article 14, UN Charter Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations. UN Security Council It is the key organ in the maintenance of international peace and security. It is composed of five (5) permanent members, namely: China, France, Russia, the United Kingdom and the United States; and ten (10) elective members, elected for two-year terms by the General Assembly, five from African and Asian states, two from Latin American states, two from Western European and other states, and one from Eastern European states. For the elective members, no immediate reelection is allowed. The Security Council is expected to function continuously, and sessions may be called at any time; thus, the representative of the member states should always be available.  The SC may investigate any dispute that endangers international peace and security. It can offer its offices for diplomatic negotiations and can recommend resolution of dispute to the ICJ. It can authorize peace-keeping missions and can create ad hoc tribunals (e.g. ICTR and ICTY). It can impose economic sanctions, arms embargo and naval blockades. It can authorize military action (e.g. Iraq) and the use of force. Its decisions, if made under Chapter VII of the UN Charter with respect to threats to or breaches of the peace, or acts of aggression, are binding on, and must be carried out by all members of the UN (Article 48, UN Charter).  Functions. The Security Council has primary responsibility to maintain international peace and security; investigate disputes and call disputants to settle their differences through peaceful means; recommend methods of adjustment of disputes; determine the existence of threats to peace, breach of peace, acts of aggression, and make appropriate recommendations; and to undertake preventive and enforcement actions, [i] Preventive action shall consist of provisional measures to prevent a conflict from worsening, and may involve the deployment of peacekeeping and/or observer missions. Other measures may also be undertaken against erring members, such as interruption of economic relations, communications or diplomatic relations [ii] Enforcement action may consist in the deployment of air, sea and land forces, or in the institution of a blockade. Enforcement actions in the past had been usually stymied by the veto power of the permanent members of the Security Council. Domestic jurisdiction clause. The only limitation is that the dispute must be international, not domestic, in character. Otherwise, such action would violate the principle that the UN shall not intervene in any matter within the domestic jurisdiction of any State. Article 12, UN Charter 1. While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests. 2. The Secretary-General, with the consent of the Security Council, shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters. Article 25, UN Charter The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. Article 33, UN Charter 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. Article 34, UN Charter The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security Article 35, UN Charter 1. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly. 2. A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter. 3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12. Article 36, UN Charter 1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. 2. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties. 3. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court. Article 37, UN Charter 1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. 2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate. Article 38, UN Charter Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute. Article 48, UN Charter 1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. 2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members. Article 49, UN Charter The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council. Article 50, UN Charter If preventive or enforcement measures against any state are taken by the Security Council, any other state, whether a Member of the United Nations or not, which finds itself confronted with special economic problems arising from the carrying out of those measures shall have the right to consult the Security Council with regard to a solution of those problems. UN Economic and Social Council Composed of fifty-four (54) members elected by the General Assembly for a three-year term. It shall exert efforts towards higher standards of living, conditions of economic and social progress and development, solutions of international economic, social, health and related problems, universal respect for and observance of human rights and fundamental freedoms. Decisions are reached by a simple majority vote. UN Trusteeship Council Charged with the duty of assisting the Security Council and the General Assembly in the administration of the International Trusteeship System. It is composed of [i] members of the UN administering trust territories; [ii] permanent members of the Security Council not administering trust territories; and [iii] as many other members elected by the General Assembly as may be necessary to ensure that the total number of members is equally divided between those members of the UN which administer trust territories and those which do not. Note that the last trust territory, Micronesia, has since then become an independent state. UN Secretariat The chief administrative organ of the UN; headed by the Secretary General who is chosen by the General Assembly upon recommendation of the Security Council. The Secretary General is the highest representative of the UN, and is authorized to act in its behalf. He also acts as Secretary in all meetings of the General Assembly, the Security Council, the Economic and Social Council, and the Trusteeship Council. UN Secretariat The Secretary General and his staff are international civil servants, and they cannot receive instructions from any government or source outside the UN. The Secretary General enjoys the right of political initiative, and may bring to the attention of the UN Security Council any matter which, in his opinion, may threaten international peace and security. Current UN Secretary-General: Antonio Guterres International Court of Justice Composed of 15 member-judges sitting for 9 years subject to re-election, who enjoy diplomatic privileges when on official business. Is a judicial institution that decides cases on the basis of international law as it exists on the date of decision. Article 92, UN Charter – The ICJ is the principal judicial organ of the UN. It has both contentious jurisdiction and the capacity to give advisory opinions requested by the GA, the SC or UN specialized agencies. Article 93, UN Charter - All UN Members are ipso facto parties to the statute of the ICJ. The jurisdiction of the ICJ is founded on the consent of the parties, and it cannot decide upon legal rights of third states not parties to the proceedings. The ICJ may decide a case on the basis of equity (ex aequo et bono). President: Nawaf Salam International Court of Justice It is the principal judicial organ of the UN; composed of 15 members who are elected for a term of nine years by absolute majority vote in the General Assembly and the Security Council, in separate elections, no two of whom must be nationals of the same state. They must be of high moral character and possess the qualifications required in their respective countries for appointment to their highest judicial offices. The Court decides contentious cases, and renders advisory opinions. Only states, including non-members of the UN, may be parties in contentious cases. The jurisdiction of the Court is based on the consent of the parties in accordance with the “optional jurisdiction clause”, and the Court may decide on interpretation of treaties, any question of international law, the existence of facts constituting breach of international obligations, and the nature or extent of the reparation to be made for the breach of an international obligation. Advisory opinions may be given upon request of the General Assembly, or the Security Council, or the other organs of the UN when authorized by the General Assembly. International Administrative Bodies Certain administrative bodies, created by agreement among states, may be vested with international personality, provided that they are non-political and are autonomous and not subject to control by any state, e.g., ILO, FAO, WHO.  Unlike States which possess general competence, international organizations are governed by the principle of specialty, that is, they are invested by the States which create them with powers, the limits of which are a function of the common interest whose promotion those States entrust to them. International Law Commission This was established by the UN General Assembly in 1947 to promote the codification and progressive development of international law. One of the functions of the Commission is to produce Draft Articles which may codify certain customary international law or aid in its development. Among these, of great significance, is the Draft Articles on State Responsibility, which are often considered as embodying generally customary international law on the matter. Association of Southeast Asian Nations International organization established by the governments of Indonesia, Malaysia, the Philippines, Singapore, and Thailand in 1967 to accelerate economic growth, social progress, and cultural development and to promote peace and security in Southeast Asia. Brunei joined in 1984, followed by Vietnam in 1995, Laos and Myanmar in 1997, and Cambodia in 1999. World Trade Organization It is the only global international organization dealing with the rules of trade between nations. It has 164 members representing 98 per cent of world trade. At the heart of the system – known as the multilateral trading system – are the WTO’s agreements, negotiated and signed by a large majority of the world’s trading economies, and ratified in their parliaments. It was preceded by the General Agreement on Tariffs and Trade (GATT), signed on Oct. 30, 1947, by 23 countries. The Philippines is a party to the GATT since 1979 and a member of the WTO since 1995. It has been a complainant in at least 5 cases lodged before the WTO’s dispute mechanism. Former Supreme Court Justice Florentino Feliciano served on the appellate body of the WTO from 1995 to 2001. European Union International organization comprising 27 European countries and governing common economic, social, and security policies. The EU was created by the Maastricht Treaty, which entered into force on November 1, 1993. The treaty was designed to enhance European political and economic integration by creating a single currency (the euro), a unified foreign and security policy, and common citizenship rights and by advancing cooperation in the areas of immigration, asylum, and judicial affairs. World Intellectual Property Organization WIPO is the global forum for intellectual property services, policy, information and cooperation. It is an agency of the United Nations. It leads the development of a balanced and effective international IP system that enables innovation and creativity for the benefit of all. Its mandate, governing bodies and procedures are set out in the WIPO Convention, which established WIPO in 1967  DIPLOMATIC AND CONSULAR RELATIONS Right of Legation right of diplomatic intercourse Refers to the right of the State to send and receive diplomatic missions, which enables States to carry on friendly intercourse. It exists only by common consent. No legal liability is incurred by the State for refusing to send or receive diplomatic representatives. Governed by the Vienna Convention on Diplomatic Relations (1961). VCCR, Special Missions Agents of Diplomatic Intercourse. Head of State. He is the embodiment of, and represents, the sovereignty of the State, and enjoys the right to special protection for his physical safety and the preservation of his honor and reputation. His quarters, archives, property and means of transportation are inviolate under the principle of exterritoriality. He is immune from criminal and civil jurisdiction, except when he himself is the plaintiff, and is not subject to tax or exchange or currency restrictions. The Foreign Office. The actual day-to-day conduct of foreign affairs is usually entrusted to a Foreign Office, headed by a Secretary or a Minister, who, in proper cases, may make binding declarations on behalf of his government [Legal Status of Eastern Greenland]. Agents of Diplomatic Intercourse. Resident Missions. States carry on diplomatic intercourse through permanent missions established in the capitals of other States. The mission is composed of: a. Head of Mission. The Vienna Convention classifies the heads of mission into: Ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank; Envoys, ministers and internuncios, accredited to Heads of State; and Charges d’affaires, accredited to Ministers of Foreign Affairs. b. Diplomatic Staff, composed of those engaged in diplomatic activities and are accorded diplomatic rank. c. Administrative and Technical Staff, consisting of those employed in the administrative and technical service of the mission. d. Service Staff, i.e., those engaged in the domestic service The Diplomatic Corps According to custom, all diplomatic envoys accredited to the same State form a body known as the “Diplomatic Corps”. The doyen or head of this body is usually the Papal Nuncio, if there is one, or the oldest ambassador, or, in the absence of ambassadors, the oldest minister plenipotentiary. Appointment of Envoys. It is the President who appoints [Sec. 16, Art. VII, Philippine Constitution], sends and instructs the diplomatic and consular representatives, and his prerogative to determine the assignment of the country’s diplomatic representatives cannot be questioned [De Perio-Santos v. Macaraig, G.R. No. 94070, April 10, 1992] the receiving State has the right to refuse to receive as envoy of another State a person whom it considers unacceptable. To avoid embarrassment, States resort to an informal inquiry [enquiry] as to the acceptability of a particular envoy, to which the receiving State responds with an informal conformity [agrement]. This informal process is known as agreation. Commencement of diplomatic mission The diplomatic mission then commences when the envoy presents himself at the receiving State, generally armed with the following papers: (i) Lettre de creance (letter of credence), with the name, rank and general character of the mission, and a request for favorable reception and full credence; (ii) diplomatic passport authorizing his travel; (iii) instructions, which may include a document of full powers (pleins pouvoirs] authorizing him to negotiate on extraordinary or special business; and (iv) cipher, or code or secret key, for communications with his country. Functions and duties of diplomatic mission a) representing the sending State in the receiving State; b) Protecting in the receiving State the interests of the sending State and its nationals, within the limits allowed by international law; c) negotiating with the government of the receiving State; d) ascertaining, by all lawful means, the conditions and developments in the receiving State and reporting these to the sending State; and e) promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.  Demarche – petition or protest seeking to persuade, inform or gather information from a foreign government; protest or object to actions of a foreign government Aide-memoire – a diplomatic note, an informal summary of a diplomatic interview or conversation Diplomatic correspondence – correspondence between the agents of the states First-person note – used for the most important correspondence, between chief of mission, head of foreign ministry or a foreign diplomatic mission Note verbal – informal third-person note but more formal than aide- memoire Pro memoria – formal note embodying the written record of a diplomatic discussion Voeu- official expression by an international conference of a wish or hope, often in the form of a resolution Diplomatic immunities and privileges Except as provided below, the following diplomatic immunities and privileges shall be enjoyed by the envoy and the members of the diplomatic retinue, i.e., the administrative and technical staff. Personal Inviolability The person of the diplomatic representative is inviolable; he shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and take all steps to prevent any attack on his person, freedom or dignity. In the Philippines, R.A. 75 punishes, on the basis of reciprocity, any person who assaults, strikes, wounds, offers violence to the person of the ambassador or minister (except if done in selfdefense). The UN Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons considers crimes against diplomatic agents as international, not political, in nature. However, the diplomatic envoy may be arrested temporarily in case of urgent danger, such as when he commits an act of violence which makes it necessary to put him under restraint for the purpose of preventing similar acts; but he must be released and sent home in due time.  Persona non grata – the receiving State can, without need of an explanation, have a diplomatic agent declared persona non grata, even before arriving in the receiving State’s territory Sending State must recall the agent, otherwise, the Receiving State may refuse to recognize Official acts – enjoy permanent immunity in relation to official acts he has performed. Such continues even when he is no longer a diplomatic agent Administrative and Technical Staff- For criminal offenses – absolute immunity For civil or administrative – immunity only with regard to official acts  Service staff – entitled to immunity arising from acts performed in the course of duties PROVIDED that they are not nationals or permanent residents of the Receiving State Papers, letters, and property – inviolable (Article 30, VCDR) Immunity during war – no justification for suspending immunities enjoyed by diplomatic agents during war Inviolability of premises and archives. The premises occupied by a diplomatic mission, as well as the private residence of the diplomatic agent and all conduct therein, are still considered as falling within the territory of the receiving State. Nevertheless, they are inviolable. The agents of the receiving State may not enter without the consent of the envoy, except in extreme cases of necessity, e.g., when the premises are on fire, or where there is imminent danger that a crime of violence is to be perpetrated in the premises.  Such premises cannot be entered or searched, and neither can the goods, records and archives be detained by local authorities even under process of law. The service of writs, summons, orders or processes within the premises of the mission or residence of the envoy is prohibited. Even if a criminal takes refuge within the premises, the peace officers cannot break into such premises for the purpose of apprehending him. The fugitive should, however, be surrendered upon demand by local authorities, except when the exists. But if it is the ambassador himself who requests local police assistance, this privilege cannot be invoked [Fatemi v. U.S.]._  The Vienna Convention provides that the receiving State has the special duty to protect diplomatic premises against invasion, damage, or any act tending to disrupt the peace and dignity of the mission.  The premises of the mission, their furnishings and other property thereon, and the means of transport of the mission shall be immune from search, requisition, attachment or execution. Inviolability also extends to the archives, documents, papers and correspondence of the mission at all times and wherever they may be, and the receiving State has the duty to respect and protect their confidential character. Unless the right is recognized by treaty or by local usage, an envoy should not permit the premises of his mission or his residence to be used as a place of asylum for fugitives from justice. An envoy may, however, in the interests of humanity, afford temporary shelter to persons in imminent peril of their lives, such as those fleeing from mob violence Right of official communication The right of an envoy to communicate with his government fully and freely is universally recognized. Article 27, VCDR The mission may employ all appropriate means to send and receive messages, whether ordinary or in cipher, by any of the usual modes of communication or by means of diplomatic couriers. Because of this right, the diplomatic pouch and diplomatic couriers shall also enjoy inviolability. Immunity from local jurisdiction. Under the 1961 Vienna Convention on Diplomatic Relations, a diplomatic agent shall enjoy immunity from criminal jurisdiction of the receiving State. Thus, he cannot be arrested, prosecuted and punished for any offense he may commit, unless his immunity is waived expressly by the State. But immunity from jurisdiction does not mean exemption from local law; it does not presuppose a right to violate the laws of the receiving State. Diplomatic privilege does not import immunity from legal liability but only exemption from local jurisdiction [Dickinson v. Del Solar, 1 K.B. 376],  The diplomatic agent also enjoys immunity from the civil and administrative jurisdiction of the receiving State, and thus, no civil action of any kind may be brought against him, ev