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OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

ANTONIO E. B. NACHURA and

JEMY GATDULA

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ACKNOWLEDGMENT For the performance of my role in the production of this work, I acknowledge the full support of the Arellano University School of Law (AUSL), the inspiration of my wife, Chit, the encouragement of my children, Annalou and John, Joy and Andree, Ryan and Aby, Andy and Luzette, and the indispensable participation of my godson and co-author, Atty. Jemy Gatdula, one of few very promising scholars in the field of Public International Law in this country. Without them, this book would never have been born.

A. E. B. Nachura To Karen and Cio, my parents Lito and Juliet, will always be grateful. Also, David Rosario and Cristina Montes, for their invaluable support. — Jemy Gatdula

CONTENTS CHAPTER I. GENERAL PRINCIPLES............................................. 1 CHAPTER II. SUBJECTS OF INTERNATIONAL LAW....

22

CHAPTER III. FUNDAMENTAL RIGHTS OF STATES ....

48

CHAPTER IV. TERRITORY OF STATES....................................... 61 CHAPTER V. JURISDICTION...................................................... 71 CHAPTER VI. RIGHT OF LEGATION........................................... 85 CHAPTER VII. TREATIES........................................................... 97 CHAPTER VIII. NATIONALITY AND STATELESSNESS....

119

CHAPTER IX. STATE RESPONSIBILITY.................................... 124 CHAPTER X. TREATMENT OF ALIENS.................................... 132 CHAPTER XI. 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)....

144

CHAPTER XII. HUMAN RIGHTS............................................... 170 CHAPTER XIII. INTERNATIONAL ENVIRONMENTAL LAW............................................................ 177 CHAPTER XIV. INTERNATIONAL ECONOMIC LAW................

187

CHAPTER XV. ASSOCIATION OF SOUTHEAST ASIAN NATIONS.......................................... 231 CHAPTER XVI. INTELLECTUAL PROPERTY............................. 244 CHAPTER XVII. SETTLEMENT OF DISPUTES......................... 248 CHAPTER XVIII. WAR AND NEUTRALITY................................ 262

ANNEXES CHARTER OF THE UNITED NATIONS............................. 277 STATUTE OF THE INTERNATIONAL COURT OF JUSTICE........................................................... 311

I. GENERAL PRINCIPLES

A. International Law Defined. 1.

Origins. The intellectual origins of international law run concurrently with the development of sovereignty. Initially, Hugo Grotius and Alberico Gentili (16th century), both of competent theological training, characterized international law as municipal law writ large.

2.

Breakthrough. By the early 19th century, following the Napoleonic wars, the first major peace summit took place (Congress of Vienna, 1814-15), followed by the early versions of several important treaties including those establishing rules for the navigation of rivers (1815), those establishing the neutrality of Switzerland (1831) and Belgium (1831), the first codified law on maritime warfare (Declaration of Paris, 1856), and, much later, the Kellogg-Briand Pact (1928) which sought to limit or abolish war. Notably, these years also saw the creation of an early framework of rules regarding the recognition of States, and State responsibility.

3.

Terminology. The term international law was first formally used by Jeremy Bentham in 1870. [See: J. Bentham, Introduction to the Principles of Morals and Legislation, 1789]

4.

Traditional Definition. 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 that possess international personality and have rights and obligations recognized under international law, as against objects, which are persons or things in respect of which rights are 1

OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

held and obligations assumed by the subjects of international law.] Another traditional definition is that of Oppenheim, who refers to international law as "a body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other.” This definition appears to exclude general principles of law and seems to make a subjective distinction between so-called civilized and non-civilized States. [See: L. Oppenheim, International Law: A Treatise, 1912] 5. Modem Definition. 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], In a sense, the broadening scope and breadth of international law means that in contemporary times, it affects almost every aspect of our lives. Basis of International Law. 1.

The Natural Law 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 natural law.

2.

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.

3.

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.

4.

Other suggested basis: Ubi Societas Ibi Jus. Under this concept, law is considered as the hallmark of any political community which intends to act together

I. GENERAL PRINCIPLES

3

for the common good. Law is therefore considered necessary for the society to function and, because it is necessary, it is ex hypothesi binding. 5.

C.

Belief of States. Another cogent argument for international law is simply that it exists because States believe it exists. This belief can be seen from the communications the States make to each other, communications which notably contain substantial references to law and other legal references.

Theories of International Relations. 1.

Realist Theoru. This theory provides that States are in a constant struggle for power; therefore, each State can be reasonably assumed to be acting only in pursuit of their individual interests.

2. Institutionalist Theoru. This theory is more interested with understanding international relations through the interplay of States in the different institutions. As such, the relations of States are a product of their interaction not only among themselves, but also with the various institutions and hierarchical structures in the global political sphere.

D.

3.

Afeo libera list Theoru. This theory proceeds from an assumption that States are geared towards gains and profit, therefore, relations are often dependent on whether the same would be profitable or not.

4.

Democratic Peace Theory. This theory provides that democratic States are generally hesitant to go to war with other democratic States. [See also: Golden Arches Theory of Conflict Prevention]

5.

Hegemonic Stability Theoru. This provides that the global system is likely to be stable when controlled by a single State which would be known as the Hegemon.

Public International Law Distinguished from: 1. Private International Law. As to nature, international not municipal; as to remedies, international modes vs. local tribunals; as to parties, international entities not private persons; as to enforcement, international

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4

sanctions not local sheriff/police. Furthermore, Private International Law (or Conilicts of Laws) is not really a branch of international law but is rather a part, of domestic law dealing with disputes that arise from private transactions between individuals or companies and corporations from one country vis-a-vis their counterparts in another country. 2.

E.

International Morality or Ethics. Principles which govern relations of States from the standpoint of conscience, morality, justice, and humanity.

3.

International Comitu. Rules of politeness/courtesy observed by States in their relations with other States.

4.

International Diplomacy. Objects policy and the conduct of foreign affairs.

5.

International Administrative Law. Body of laws which regulate the relations and activities of national and international agencies with respect to their material and intellectual interests which have received international recognition.

of

international

International Law as True Law. 1.

The Austinian Dilemma. John Austin (1 Qth century positivist) States that laws are commands of a sovereign which receive the habitual obedience of the members of an independent political society. International law, according to Austin, does not follow this precept. International law, furthermore, lacks an effective enforcement mechanism.

2.

Command Theoru. Similar to the Austinian Dilemma, the “command theory” States that laws are commands of the sovereign authority and are backed by sanction. Those who subscribe to this theory therefore see international law as merely a “code of rules of conduct of moral force” and is simply “positive international morality”.

3.

International law as law. Although it may not comply with John Austin’s concept of law, i.e., enforced by sovereign political authority, nonetheless it is still true law. This is because despite the prevailing

1. CiENICRAl. PRINCIIMJSS

5

belief that international law does not comply with the requirements of sovereign issuance, compulsion, and penalty, it still has such mechanisms for enforcement such as self-help, force, collective action, and resort to the UN. 4.

Amendment and adjudication. Amendments (rules of change) are needed by legal systems. International law, unlike legislation, has rules based on consent (treaties and customs). Thus, the focus here is on self-interest rather than common good. Notably, adjudication is also with consent.

5.

Application, enforcement, and compliance. The absence of a central lawmaking authority and the debilitating jurisdictional defects weaken the expecta­ tion of compliance in comparison with the situation in the domestic plane. Enforcement is therefore decen­ tralized, unlike that of municipal law, and can be done either through peaceful measures or otherwise. These considerations are, however, balanced by the risk of political/economic retaliation and other sanctions, such as adverse public opinion, retorsions, reprisals, the UN machinery, and the conviction that obedience will redound to the public good.

6.

Enforcement v. Enforceabilitu. Actual enforcement is irrelevant to the binding quality of international law, as enforcement is not what is meant by the term law. What is material is that international law is “enforceable” even though it lacks a police force or compulsory court.

Relationship with Municipal Law. 1.

Horizontal v. Vertical. International Law is “horizontal” by nature whereas domestic or municipal law is “vertical”. This means that in international law, all States are more or less on equal footing and are generally unable to compel each other to act, whereas under municipal law, a hierarchy exists whereby those on top can give commands to those lower in the system.

2.

Monist v. Dualist. To monists, there is no substantial distinction between international law and municipal

OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

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 lawmaking 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. The Monist theory has been criticized due to the fact that States, in practice, do not follow this theory and instead follow international law only when it pleases them. 3.

Written in the Law. States that have written constitutions usually indicate the manner in which international law is treated in domestic courts: Federal Republic of Germany (Basic Law, Article 15 - “The general rules of international law shall form part of federal law. They shall take precedence over the law and create rights and duties directly for the inhabitants of the Federal territory”); Article 15 of the Russian Constitution makes reference to “generally recognized principles and norms of international law and international treaties”; The 1996 Constitution of the Republic of South Africa: “Customary international law is the law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.” (Note that this generally covers only customs and principles but not treaties, since the latter usually still needs transformation.]

4. The Prism of State Practice. The application of international law in the municipal system is better understood through the prism of State practice. For example, in the UK and the US, domestic legislation or judgments trump customary international law; while in Malaysia, customary law is already deemed incorporated in their jurisdiction.

I. cTWfcRAI. I'KiM 111

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The Theory of Coordination. This Dix lnnr States 'li.it .ilitu-ui'.h rimiirstit l.iw .mil ininimtioniil law me ■in two si-p,ir.itc plant's, they may nevertheless affect each other with regard to obligations. However, it is argued by Kitzmuurice that since the two systems lie on different fields, then interaction should not bring them into contliri with each other since they operate in two different spheres, with each being supreme in its mm field. |Also see: H. Thirlwuv. The Unv and f'-e. edun.- of the International Court of Justice. 2013)

Incorporation y. Transformation. i Incorporation. The doctrine of incorporation is expressed in Sec. 2. Art. II. Philippine Constitu­ tion. as follows: “The Philippines renounces war as an instrument of national policy, adopts the acnerallu accepted principles of international law os part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooper­

ation and amity with all nations”. (Underscoring supplied) See: Kuroda vs. Jalandoni, 83 Phil. 171 (although the Philippines was not a signatory to the Hague and Geneva Conventions, internation­ al jurisprudence is automatically incorporated in Philippine law, thus making war crimes punish­ able in the Philippines); Lo Ching vs. Archbishop of Manila, 81 Phil. 601; Borovsky vs. Commission­ er of Immigration, G.R. No. L-4362 (1951) (where

prolonged detention of a Stateless alien pending deportation was deemed illegal, citing the Univer­ sal Declaration of Human Rights which is incor­ porated in Philippine law). b. 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, 231 SCRA 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

OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL I .AW

8

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. c.

Caution. Internationally speaking, the fact that a country follows the incorporation doctrine for customary international law does not automatically mean that the same follows for conventional international law or treaties (e.g., United Kingdom). Likewise, some States make a distinction between treaties which they deem are self-executing from those they deem are not (e.g., United States). However, the Philippines does not seem to make such distinctions in employing the incorporation doctrine, the only qualification being that in the case of treaties the same must be in conformity with the Constitution. (Art. VIII, Sec. 5[2][a]; Secretary of Justice vs. Judge Lantion, G.R. No. 139465, January 18, 2000)

7. Conflict Between International Law and Municipal Law. a.

On the domestic sphere, with a local court deciding: i.

If the conflict is with the Constitution: uphold the Constitution. [See Sec. 5(2)(a), Art. VIII, Philippine Constitution, which pro­ vides that the Supreme Court has the power to declare a treaty or executive agreement unconstitutional.] In Secretary of Justice vs. 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.

ii.

If the conflict is with a statute: The doc­ trine of incorporation, as applied in most

I liKNKKAI. I'UINI'ICUtll

countries, decrees I tint i u|i:m of mlerri.-itionol law arc given c(|ual slmiding with, hut ore not, supci'ior to, nalional legislative enactment.::. A treaty may repeal a statute, and a stat­ ute may repeal a treuty; thus, the principle of lex posterior derogat priori, which favors that which comes last in time will usually be upheld by the municipal tribunal. |See also Ichong vs. Hernandez, 101 Phil. 115, where it was held that the Retail Trade National­ ization Law prevails over the Treaty of Amity with China and the Universal Declaration of Human Rights, because the law was passed in the exercise of the police power of the State, and police power cannot be bargained away through the medium of a treaty or a contract.] b.

On the international sphere, with an interna­ tional tribunal deciding: i.

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. (See: Alabama Claims Arbitration Case 1872 [John Bassett Moore, History and Digest of the International Arbitrations to which the United States Has Been a Party, 1898], where it was decided that the UK must take care that its municipal law conform with its international obligations; see Polish Nationals in Danzig Case 1932 [225 C.T.S. 188], where the PCIJ ruled that a State cannot adduce as against another State its own domestic laws with a view to evading obligations incumbent upon it under international law; UN Headquarters Case 1988 [I.C.J. Reports 1988, p. 12], where the ICJ affirmed that international law prevails over municipal law).

ii.

Application of Vienna Convention on the Law of Treaties IVCLTI. International law does not entirely ignore municipal

OUTl.INK INTROinicri'HJN TO I'llllUi: INTISKNATIONAI, 1,AW

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law, (lie latter being used as evidence either of custom or general principle') of law. However, following Article 27 of the VCLT, which States that “a party may not invoke the provision of its internal law a-> justification for its failure to perform a treaty”, municipal law (or a gap within it) cannot be used by a State as an excuse for non-compliance with an obligation under international law. (See: Free Zones of Upper Savoy Case 1932 [PCIJ Series A/B No. 46], where the PCIJ ruled that France could not rely on its domestic law to override its treaty obligations; Alabama Claims Arbitration Case 1872; Polish Nationals in Danzig Case 1932; LaGrand Case 2001. [(2001) ICJ Rep 466, where the ICJ ruled that the US had violated its treaty obligations when it failed to inform an alien arrested locally of his rights under international law.] G. Sources of International Law. 1.

In the domestic sphere, the constitution, legislative enactments, and case law (stare decisis) constitute such sources. On the international plane, it is a bit complicated because there is no body likened to a national legislature, no fundamental law, and the doctrine of precedents is not applicable.

2.

Material and Formal Sources. Material sources are distinguished from formal sources insofar as it is the material sources from which the substance of the law is derived, while it is the formal sources that become the basis of the validity and force of law. An example of this can be seen in the case of custom: while custom itself is a formal source of law, the State practice that was taking place even before such practice crystallized into custom can be considered as the material source.

3.

Given the wide range of possible sources of interna­ tional law, the most authoritative enumeration is found in Article 38, Statute of the International Court of Justice, which provides that the Court, whose function

I. UKNKRAl. I'KINCIIM.KS

II

is to decide in accordance with International Law such disputes as are submitted to it, shall apply: As Primary Sources: a.

International Treaties and Conventions, whether general or particular, establishing rules expressly recognized by the contesting States. i.

Treaties may codify, crystallize, or create obligations. Codification is done where the treaty merely compiles existing obligations to facilitate simplicity, as in the case of the 1982 UNCLOS. Crystallization is done to formalize as an obligation existing State practice, as in the case of the 1958 Geneva Continental Shelf Convention. Creation is done where the treaty itself is the first time wherein such obligation was created between the parties, as is usually the case in bilateral trade agreements.

ii.

Treaties, just like domestic law, are governed by the rules on Lex Posterior and Lex Specialis. Lex posterior provides that a later treaty overrides a prior treaty in case of incompatibility, while lex specialis provides that a more specific treaty should be followed if in conflict with a more general treaty.

iii.

Treaties may be bilateral or multilateral, depending on how many parties are involved. Multilateral treaties are usually general in nature and establish common principles of law, while bilateral treaties are usually for the regulation of particular conduct such as trade.

iv.

Law between the parties. Regardless of how many States are involved, it must always be remembered that a treaty becomes the law between the parties who gave their consent thereto. Although there are instances where States who do not give their consent are bound by treaties, such as situations wherein a treaty is merely meant to codify

12

OU'I UNK INTKOOIJCTIOH JO HJJlUO INTliKNATIONAJ, IAW existing practices regarding /'as coverts, generaJ rule still stands that States are os!/ bound to the treaties they gave their censer.-; to, and only to the extent by which they allowed themselves to be bound. b. International Customs, as evidence of a genera: practice accepted as binding law through persistent usage over a long period of time, e//.p angary, exemption of unarmed fishing vessel from capture. 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.

/

i.

Definition. In the Asylum Case [(1950J, ICJ Rep 266], the ICJ held that custom is defined as “constant and uniform usage, accepted as law”.

ii.

Scope. Custom may be general or regional. In either case, the elements of custom must both exist and be proven. See: Asylum Case 1950, where the Court ruled that although a regional custom can exist, the same must still be proven; Right of Passages Case 1960 [(I960) ICJ Rep 6], where the ICJ again affirmed the possibility of a regional custom but denied Portugal’s claim since it failed to prove that such a custom existed.

iii.

Elements. The two main elements of custom which must concur are State practice and opinio juris. As sub-elements of State practice, the practice in question must be demonstrated to have been general, uniform, and over a long enough period of time to enable it to crystallize (duration). See: Nicaragua Case [(1986) ICJ Rep 14], where the ICJ discussed custom and its elements extensively; North Sea Continental Shelf Case 1969 [(1969) ICJ Rep 3], where the sub-elements of State practice were discussed extensively.]

1. I'.KNKK'Al, 1'KlNl’IPUCS

iv.

13

Evidence of Custom. According to Brownlie, custom can be proven using a wide range of instruments including diplomatic corre­ spondence, press releases, opinion of offi­ cial legal advisers, executive decisions and practices, judicial decisions, legislation, and resolutions of the United Nations General Assembly, among others. Although a large number of States performing the same con­ duct may create a presumption that there is in fact a custom in existence, such a pre­ sumption is not conclusive and may be re­ butted with a wide range of evidence. (See: J. Crawford, Brownlie’s Principles of Public International Law, 2012) a) The Baxter Paradox. Under the Baxter Paradox, named after Professor R.R. Baxter, it is believed that as more and more States subscribe to a treaty, the understanding of the contemporary status of customary international law will decrease because the actions of States are already expressly guided by a real obligation under the treaty and not a mere sense of opinio juris. Thus, Baxter posits that if a treaty becomes so popular as to only have a handful of States not party to it, those handful of States would be the only ones capable of generating custom, but simultaneously their task appears to be Herculean since custom requires a wider and much more general application or observance of conduct. v.

State Practice. State practice consists not only of what States say or do but also of what they fail to say or do. As mentioned earlier, State practice has three sub-elements which are generality, uniformity, and duration. (See: North Sea Continental Shelf Case 1969) a)

Uniformity. According to the Nicaragua Case 1986, although uniformity is

OUTLINU INTRODUCTION TO PUBLIC INTICRNATIONAL LAW

required, absolute uniformity by all States is not. As such, substantial uniformity of a given practice among States is enough. Following the North Sea Continental Shelf Case 1969, actual uniformity is not required provided that the practices of the States are extensive and virtually uniform with one another. (Also see: Anglo-Norwegian Fisheries Case 1951 [(1951) ICJ Rep 116], where the ICJ niled that some degree of uniformity amongst State practices is essential before a custom can exist). b)

Generality. Given that a custom can be either general or regional, the practice under consideration must be widespread among the States that are particularly involved in the relevant activity. Thus, universality of a given practice is not a requirement. (See: Asylum Case 1950)

c)

Duration. Although the length of time required for a practice to crystallize into State practice varies from situation to situation, the ICJ in the North Sea Continental Shelf Case (1969) stated that the time period must be long enough to show that other requirements are satisfied.

d)

Instant Custom. Although scholars have been arguing for the existence of an instant custom, especially in the aftermath of the 9/11 terrorist attacks, the ruling of the ICJ in North Sea Continental Shelf Case 1969 should still be controlling insofar as it prescribes that a length of time, regardless of how short, within which the other elements of uniformity and generality are shown to exist, must still take place before a practice can crystallize into State practice.

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vi.

Opinio Juris. According to the Lotus Case ([1927] PC1J Series A, No. 10), opinio juris constitutes a State’s belief that it is acting due to a legal obligation. The fact that a State is acting in accordance with opinio juris is never presumed and must always be proven.

vii.

Legal Conundrum. Should opinio juris precede State practice or should it already be present when the practice is performed? Although this question has not yet been formally resolved, it must nevertheless be understood that custom can only arise once both elements concur.

viii. Persistent Objector. The mere existence of a custom may not necessarily be enough to bind States, particularly those who qualify as persistent objectors. Following the AngloNorwegian Fisheries Case 1951, a persistent objector is one who objects to the practice from the early stages of the practice and maintains the said objection consistently. ix.

Exception to Persistent Objector. As an exception, mere objection at the beginning is not enough for a State to claim it is a persistent objector: a State cannot claim to be a persistent objector when the practice being objected to has already attained the status of jus cogens.

x.

Relationship between Treaty and Custom. Generally, if there is a conflict between a treaty and a custom, a treaty is superior. The exception to this rule is if the custom involved is jus cogens. Also, a treaty may create custom, provided, it was intended to be norm-creating, and a State may be bound by both a treaty and a custom at the same time insofar as they do not conflict with each other. (See: North Sea Continental Shelf Case 1969, where the ICJ examined whether the equidistant principle contained in the 1958

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Geneva Convention on the Continental Shelf had already become custom; Nicaragua Case 1986, where the ICJ ruled that the mere fact that a custom is enshrined in a treaty does not prohibit the Court from entertaining a claim seeking relief based on violation of custom; Fisheries Jurisdiction Case [(1974) ICJ Rep 3], where the ICJ ruled that Iceland was still bound by a treaty it had earlier signed despite the emergence of newer practices among States provided the obligation in the treaty had not radically changed.) c.

;

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. i.

Definition. General principles of law are propositions of law that are so fundamental that they are found in almost all legal systems. Notably, general principles of law are a separate source of law from both treaty and custom.

ii.

Purpose. General principles of law were introduced as a source of law in order to combat the problem of non-liquet (or the absence of any source of law or obligation to point to in order to resolve the conflict). As such, even absent a particular treaty or custom, the Court may not renege on its duty to decide a case since it is allowed to rule on the matter on the basis of general principles of law.

iii.

Scope. Although it is unclear what the formal scope of general principles of law is, the decisions of the ICJ seem to lean towards

1. CRN KRAI. PKINOiri.RS

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general principles of law encompassing both private law and public law concepts. See: Advisory Opinion on the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal [(1954) 1CJ Rep 47|, where the 1CJ acknowledged the principle of res judicata; Temple of Preah Vihear Case [(1962) 1CJ Rep 6], where the ICJ used the principle of estoppel in finding Thailand to have recognized Cambodia’s sovereignty over disputed territory; Corfu Channel Case [(1949) ICJ Rep 4], where circumstantial evidence, in the absence of direct evidence, was used to ascertain whether or not Albania was liable for the sinking of British ships; Status of Eastern Carelia Case [(1923) PCIJ Series B no. 5], where the PCIJ ruled that it could not rule on the matter because it did not have jurisdiction over Russia who was the respondent; Chorzow Factory Case [(1927) PCIJ Series A, No. 9], where the PCIJ used the principle that taking requires compensation to be valid when it decided a case involving damages; The Separate Opinion of Justice McNair in the Advisory Opinion on the International Status of the South West Africa 1950 [(1950) ICJ Rep 128], where the general principle of trusts was discussed in relation to the advisory opinion; LIAMCO v. Libya 1981 (20 ILM 1), where the general principle of equity was used in determining the amount of damages. [Note: To these may be added the principle of ex aequo et bono (what is good and just), provided that the parties to the dispute agree thereto, as provided in Art. 38(1), Statute of the International Court of Justice. This must not, however, be confused with the principle of equity since equity is a part of the judicial function and can be applied at any time, whereas the principle of ex aequo et bono, which considers only

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OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

socio-economic and political considerations, may only be applied when asked for by the parties.] As Secondary Sources: a.

Judicial Decisions, generally of international tribunals, the most authoritative being the International Court of Justice. They are not really sources, but “subsidiary means” for finding what the law is, and whether a norm has been accepted as a rule of international law. The decision of a national 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. i.

Binding Effect. Following Article 59 of the ICJ Statute, the decisions of the ICJ have no binding effect except as to the State parties and only in respect of that particular case.

ii.

Judicial Legislation. Despite res judicata being generally inapplicable with regard to 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 - a new, provisional rule being followed. (See: Anglo-Norwegian Fisheries Case 1951, where the ICJ decision fixing Norway’s baselines were based more on historic and economic considerations rather than a formal source of international law; Reparations Case [(1949) ICJ Rep 1740], where the ICJ created the guidelines to be used by the United Nations in presenting international claims against both members and non-members of the UN, in order to seek reparations for damages sustained by the UN or any of its agents.) iii. Judicial Legislation and Custom. When judi­ cial legislation occurs, and its basis is the

I. GENERAL PRINCIPLES

19

practice of States, does this mean that such a practice is now custom? Likewise, can a judicial decision which has all the elements of custom be considered customary? Al­ though these questions appear to be purely academic, they could have an effect on the future understanding of the sources of inter­ national law. iv.

Judicial Consistency. Despite the general inapplicability of res judicata with regard to decisions of international tribunals, these tribunals nevertheless follow the rule on judicial consistency. This rule provides that, as much as possible, rulings should not deviate from already settled matters except when necessary.

v.

Local Jurisprudence. Accordingto the German Interests in Polish Upper Silesia Case [(1926) PCIJ Series A no. 7], the PCIJ remarked that from the viewpoint of international law, municipal law, including legal decisions of domestic courts, are merely facts from which can be inferred the will of the State and its activities.

vi.

Judicial Courtesy. In the Advisory Opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania [(1950) ICJ Rep 221], the ICJ clarified that when it is requested for an opinion regarding a matter that is subject of a pending case, if the result will materially affect the decision in the pending case, the ICJ will not hesitate to decline the request for an opinion.

Writings of Publicists, which must be fair and unbiased representation of international law by acknowledged authorities in the field. i. Publicists are a particular class of learned scholars whose writings are regarded as being persuasive sources of international law. Although they are merely considered

OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

20

as subsidiary sources of international law, they play a primary role in helping practitioners and non-practitioners alike in better understanding various concepts of international law. Examples of these publicists are Grotius, Vattel, Oppenheim, Rousseau, and Lauterpacht. ii.

4.

Caution. Despite their role in the under­ standing and development of international law, such writings are not immune from losing their value over time. As such, while some writings are of great importance today, unless they are updated, they could be sig­ nificantly less important in the future.

Interpretation of Article 38. Although the provision is silent on the question of whether the three primary sources have the same hierarchic value, by practice, treaties take precedence over customs, and customs over general principles of law, except: a.

The Principle of 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 Hilao v. Estate of Marcos (25 F.3d 1467), where it was held that official torture of prisoners / dissenters was a violation of the principle of jus cogens. i.

Following Article 53 of the VCLT, a treaty is void if it comes into conflict with a peremptory norm of international law. Furthermore, Article 64 of the VCLT provides that if a new peremptory norm emerges, all treaties in conflict with it are rendered void. As such, it becomes clear that States cannot evade their

I OKNKK.M. I'KINl'll'l KS

1

jus cx);/t'iis obligations bv (.Touting a tmily or pointing to one already in existence. 5.

Other Sources of Lute. Although not explicitly mentioned under Article 38, other possible sources of law are resolutions of international organizations, soft laws, and equity. In the Nicaragua Case 1986, the 1CJ, despite much criticism, examined, and appreciated a resolution by the UN General Assembly as a possible evidence of obligation. a.

Soft laws. Soft laws are mere guidelines for conduct. With regard to the Philippines, these are not considered as binding. (See: Pharmaceutical and Health Care Association of the Philippines vs. Health Secretary Francisco T. Duque [G.R. No. 173034], where the Supreme Court ruled that although soft laws can influence the behaviour of States, they are still considered as non-binding norms, principles, and practices)

b.

Lex Mercatoria. Although not strictly a law which is imposed by a sovereign, lex mercatoria, which has evolved through the practice of businessmen, is still hugely a part of international commercial law.

II. SUBJECTS OF INTERNATIONAL LAW

A. Distinction between Subject and Object of International Law. 1. Subjects and Objects 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. 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. a.

Purpose of Distinction. The separation between those clothed with personality, and those that are not, is meant to denote which entities are ultimately given legal personality in the international arena. Such a conferment of legal personality is an acknowledgment of that entity being party to several rights and duties that may be found in the international sphere (i.e., suing before the ICJ, entering into treaties and other similar instruments).

b.

Traditional View. Traditionally, scholars have taken the view that only States should be considered as the proper subjects of international law. This traditional view has its justifications in the belief that when it comes to the international sphere, it is relationship between States alone that can create a fundamental change in the system, regardless of whether that change is positive or negative. Furthermore, some scholars adhering to 22

/

II. SUBJECTS OF INTERNATIONAL LAW

23

the traditional view often point out that States are the ultimate representatives of all other entities including individuals, whole territories, and entire communities. [See: J. Crawford, Brownlie’s Principles of International Law, 2012] 2.

The subjects of international law include States, colo­ nies, and dependencies, mandates and trust territo­ ries, the Holy See (Vatican City), the United Nations, belligerent-communities, international administra­ tive bodies, and, to a certain extent, individuals. This much broader view is based on contemporary defini­ tions.

B. States. 1.

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.

2.

Elements. As Stated in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, the elements of Statehood are: a.

Permanent Population. 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. Note that a degree of permanence is required before this element can be found present.

b.

Defined 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). i.

Substantial Compliance. In the Deutsche Continental Gas-Gesellschaft Case 1929 [5 AD 11], it was provided that in order to satisfy the requirement of territory, it is enough that the State possesses the land it claims as its territory, even if the formal

OUTLINE INTRODUCTION TO PUIJLIC INTERNATIONAL LAW

24

boundaries of such territory have yet to be settled. c.

Government. Must be organized, exercising control over and capable of maintaining law and order with 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.

d.

Capacity to Enter into Relations with Other States (wrongly attributed bv others as “independence” or “sovereignty”!. This includes freedom from out­ side control in the conduct of its foreign (and in­ ternal) affairs. Generally, only independent States can enter into free relations with other indepen­ dent States. There are, however, exceptions; see the Philippines becoming a party to the UN Char­ ter in 1945, and Hong Kong, Macau, and Taiwan being members of the WTO. i.

Non Self-Governing Territories. These include protectorates, trusteeship territories, prin­ cipalities, and various colonies which have a restricted amount of control over their re­ lation with other States. By technical defi­ nition, though possessed of international personality, they are not be considered as States since their affairs to a certain but substantial extent are being controlled by another entity. a)

Historically, a good example of a non self-governing territory purporting to be a State is Manchukuo. Now part of modern day China, Manchukuo formerly Manchuria - was conquered by the Japanese in 1931 and recognized as a province in 1932. Being called the new independent State of Manchukuo, the League of Nations sent the Lytton Commission to observe proceedings in the new State. The Lytton Report spoke of the State of Manchukuo being a mere

II. SUBJECTS OF INTERNATIONAL LAW

25

puppet of the Japanese, and this is why the League of Nations never recognized Manchukuo as a State. [See: V.N. Khanna, International Relations, 5th Edition, 2016.] b)

Exception. If a non self-governing terri­ tory, through a valid exercise of external self-determination, is able to seize con­ trol of its affairs and is now free to chart its own future, that territory, which was formerly non self-governing, may possi­ bly be considered a State. Likewise, if a colony is granted real independence by its colonizer, it may possibly be consid­ ered a State. [Contrast: the case of the Philippines, which is now a State, being granted independence by the USA, with the case of Manchukuo, which is not a State, being granted independence by Japan.]

Achieving Statehood. Although the elements of Statehood as found in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States has already been widely accepted as customary international law, a question worth pondering on is whether Statehood is achieved automatically upon acquisition and concurrence of the elements of Statehood, or whether a further act still needs to be done after concurrence of the elements. For those who are of the School of Thought that a further act needs to be done before Statehood is achieved, a further question would be what that act is, and who would be in charge of deciding whether such act has been satisfactorily completed. a. Characteristics of Statehood. Although the legal consequences of Statehood are still being explored and developed even in current times, there are nevertheless characteristics of Statehood which can no longer be denied. Among these are the ability to enter into treaties and other agreements with other States, exclusive competence with

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icipcci to purely domestic affairs, freedom from the jurisdiction ol inlernationaJ tribunaJs such as llio IC.J unless they give their consent, and I hour eiical equality, among others. Furthermore, insofar as the international sphere is concerned, there appears to be a presumption in favor of Stales that unless a certain matter is outlawed, the same is allowed. [See: J. Crawford, The Creation of States in International Law, 2006; Lotus Case 1 027, where the PCIJ Stated that in the international sphere, all acts not expressly forbidden under international law are allowed.) b. Statehood and Governments. Under international law, a government is merely an element of a State. As such, regardless of how many times a government changes, such changes generally have no effect on Statehood. [See: Tinoco Arbitration ([1923] 1 RIAA 269), where there was a discussion on the interplay between changes in government and Statehood; Republic vs. Sandiganbayan (2003) [G.R. No. 104768], where the Supreme Court discussed the continuity of the State and its commitments under international law even during times where the constitution was not in effect.) 4. Other Suggested Elements of a State Are: a.

Civilization.

b.

Recognition: The act by which a State acknowl­ edges the existence of another State, a govern­ ment or a belligerent community, and indicates its willingness to deal with the entity as such un­ der international law. [Note: The importance of recognition has been substituted to a large extent by the act of admission to the UN. 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.]

It. SUBJECTS OF INTERNATIONAL LAW

27

Theories on Recognition: a)

Constitutive (Minority viewl: 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.

b)

Declarative (Majority viewl: 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.

ii.

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.

iii.

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. a)

Tobar/ Wilson Doctrine: precludes rec­ ognition of any government established by revolutionary means until constitu­ tional reorganization by free election of representatives.

b)

Stimson Doctrine: No recognition of a government established through exter­ nal aggression.

c)

Estrada Doctrine: Since recognition has been construed as approval (and non-recognition, disapproval) of a gov­ ernment established through a politi­ cal upheaval, a State may not issue a

28

OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

declaration giving recognition to such government, but merely accept what­ ever government is in effective control without raising the issue of recognition. Dealing or not dealing with the govern­ ment is not a judgment on the legitima­ cy of the said government. [Note: Recall the recognition of the People’s Republic of China, based on the one China poli­ cy.] iv.

v.

Kinds of Recognition. May be express or implied: may also be: a)

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.

b)

De jure: Extended to a government ful­ filling the requirements for recognition. y When there is no specific indication, recognition is generally considered as de jure. The recognition is relatively permanent; brings about full diplomat­ ic intercourse and observance of diplo­ matic 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 National de Cuba v. Sabbatino, 376 U.S. 398, where unfriendly relations or the lack of reciprocity was held immaterial!; immunity from jurisdiction; entitlement to property within the recognizing State; retroactive validation of the acts of

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the recognized State/goverrirnem, v-ch acts of State, arid thus, w/ereign imm ^r ity covers past, present and future acts YOet/en vs. Centrul Leather Co.. 24 L rj.S. 297j.\ vi.

vii.

Recognition of Belligerency; CrjnrJitwns. The usual conditions for the recognition of the status of belligerency are: organized civil government having control and super/ision over the armed struggle; serious and widespread struggle with the outcome un­ certain; 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 im­ plied; 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 State.] Effects of Recognition of Belligerency. Res­ ponsibility 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 reb­ els shall observe the laws of war in conduct­ ing hostilities; third States recognizing the belligerency shall maintain neutrality; and recognition is only provisional (for the dura­ tion of the armed struggle) and only for the purpose of the hostilities.

Willingness to Observe International Law. This suggested element exists due to the point of view of certain writers like John Dugard who are of the opinion that the international community is empowered to refrain from recognizing the legal personality of States and other entities purporting to be States when the same have achieved their Statehood through means that would be in conflict UNIVERSITY of the cordilleras ____ LIBRARIES ___________

OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

with jus cogens. [See: J. Dugard, International Law, 1994] i.

ii.

An example of this can be seen in the case of Transkei, Ciskei, Bophuthatswana, and Venda. These South African homelands claimed they were States in the late 70’s and were recognized only by each other and by South Africa despite having all the elements Stated under Article 1 of the 1933 Montevideo Convention. The reason for this non-recognition can be strongly linked to the UN Security Council, which essentially called upon States to refrain from recognizing the said homelands and effectively acted to deny these entities personality under international law on account of their extensive violation of human rights. [See: David Raic, Statehood and the Law of Self-Determination, 2002] Effect of Unilateral Declaration of Statehood. In the case of the Apartheid Regime of Southern Rhodesia, they attempted to achieve Statehood by unilaterally declaring themselves to be a new and independent State in the 1960’s. This unilateral declaration was condemned by the UN Security Council through a Resolution which imposed a legal duty on States not to recognize the illegal regime. Thus, it appears that a State may not circumvent the requirements of Statehood by unilaterally declaring itself a State. [See: D. Raic, Statehood and the Law of Self-Determination, 2002]

Others Possible Elements. Crawford, a leading expert on Statehood and the creation of States, adds to the list by including the elements of permanence, willingness to observe international law, and existence of legal order within the State. Interestingly, in some cases, degree of civilization has also been thought of as an element of Statehood. (See: J. Crawford, The Creation of States in International Law, 2006]

II. SllKIWI'S ()!• IN’IKkNATIONAI. I.AW

!l

CreationoJStates. Hy revolution, unification, :k-ies'iion, assertion of independence, agreement, mill ailninmenl of civilization. Extinction of States. Uy extinction or emigration an 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. a.

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 v. Cable Wireless, it was ruled that a conquered State has no personality in international law].

b.

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

OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

obligations of the predecessor but not those obligations contracted by it in the ordinary course of official business. [See: Tinoco Arbitration 1923; Republic vs. Sandiganbayan (2003) (G.R. No. 104768)\ Classes of States. a.

b.

Independent. Has freedom to direct and control foreign relations without restraint from other States. May be: i.

Simple. Single central government, with power over internal and external affairs.

ii.

Composite. Two or more sovereign States joined together to constitute one interna­ tional person, which may be: a)

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 interna­ tional personalities are extinguished and blended in the new international person. E.g., the former United Arab Republic, with Egypt, and Syria.

b)

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 memberStates; 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

II. SUBJECTS OF INTERNATIONAL LAW

33

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). c.

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. 1.

2.

The Holy See ostensibly has all the constituent ele­ ments of Statehood (people: less than 1,000 individu­ als; 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 diplo­ matic intercourse, immunity from foreign jurisdiction, etc. See, however, 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.

Colonies and Dependencies. A colony is a dependent po­ litical community consisting of a number of citizens of the same country who have migrated therefrom to inhabit an­ other 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 laws and regulations which the sovereign may prescribe. [Note: Theoretically, they belong

orn ink ini'kopuoi'ion ro I’um 10 INI'KKNAI'H'NAI I AW

A4

to the parent State and, thus, an- without any pcinonnl ity in the international eotnmunily. However, on oeea:iioan, colonies have been allowed to participate in their own riglil in certain international undertakings, t\p., the Philippines was admitted as a signatory to the UN (.’hnrlcr.| E.

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 advance­ ment. An example are mandates, which were former territo­ rial 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. 1. A condominium is a territory jointly administered by two States.

F.

The United Nations. 1.

Historical Development of the United Nations. a.

There was the League of Nations, formed in the aftermath of WWI by the will of the victorious States, embodied in the 1919 Treaty of Versailles. It was widely considered a failure in attaining its primary objective of maintaining international peace and order, especially after the outbreak of World War II.

b.

The London Declaration, June 12, 1941.

c.

The Atlantic Charter, August 14, 1941.

d.

Declaration by United Nations, January 1, 1942.

e.

Moscow Declaration, October 30, 1943.

f.

Dumbarton Oaks Proposal, Washington, August to October 1944.

g.

Yalta Conference, Crimea, February 11, 1945.

h.

San Francisco Conference, April 25 to June 28, 1945, at which delegates from 50 nations unanimously approved the United Nations Charter which came into force on October 24, 1945.

11. KUIUKCTK OK IIMTItKNATIONAI, i,AW

i.

35

On April 8, 1993, the UN General Assembly welcomed Macedonia, the 184th member, into the community of nations.

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 a Preamble, 19 chapters, 111 articles, and the concluding provisions. Annexed to it is the Statute of the International Court of Justice.

3.

a.

Amendment, [i] By a vote of 2/3 of the members of the General Assembly and ratified in accordance with their respective constitutional processes by 2/3 of the members of the United Nations, including all the permanent members of the Security Council; [ii] A general conference, called by a majority vote of the General Assembly and any nine members of the Security Council, may propose amendments by a 2/3 vote of the conference, and shall take effect when ratified by 2/3 of the members of the UN, including the permanent members of the Security Council.

b.

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. a.

Classes: Based on the manner of admission, members may be original or elective.

b.

Qualifications: member must be a State, peace loving, accept the obligations under the Charter, and be able and willing to carry out these obligations.

Oim.INK IN I'lv'ODIICTION l < > I'Ulil.K. INTKK'NATU JNAI. I.AW

o. Admission: decision of 2/3 of thov; pre/'v and voting in the General Av-,ernhily y:/*:. recommendation of at least nine (including at. permanent) members of the Security Council.

4.

d.

Suspension: the same vote required a-- :r. admission. When suspended, a member cannot participate in meetings of the General Assembly; cannot be elected to or continue to serve ir. 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.

e.

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.

f.

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.

Organs. a. General Assembly. Consists of all the members of the organization, each of which is entitled to send not more than 5 representatives and 5 alter­ nates. Each member has only one vote. Its func­ tions may be classified into: [i] Deliberative, like initiating studies and making recommendations for the development of international law, etc.; [ii]

II Sl'Ull-VI'S OKINI'IK'IMAI'IONAl LAW

XI

Si./vm'isom/, suoli us i viviviii)', mid considering .innu.il and special reports from oilier organs of the UN; |iu| Mmimeiu/, ns the consideration mid approval of the budget of the organization, the apportionment of expenses, etc.; |iv| lilective, as in the election of the non permanent 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 Char­ ter. 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 ques­ tions, e.g., peace, security, membership, elec­ tions, 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 re­ quired is a simple majority. i. Note that the General Assembly is not a leg­ islative body, for it can only make recom­ mendations and not binding rules. b. Security Council. It is the key organ in the maintenance of international peace and security. It is composed of five permanent members, namely: China, France, Russia, the United Kingdom and the United States; and 10 elective members, elected for a two-year term 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 re-election 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. i. Functions. The Security Council has prima­ ry responsibility to maintain international peace and security; investigate disputes and call disputants to settle their differences

OLTIINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

through peaceful means; recommend inethods of adjustment of disputes; determine the existence of threats to peace, breach of peace, acts of aggression, and make appro­ priate recommendations; and to undertake preventive and enforcement actions. a)

Preventive action shall consist of pro­ visional measures to prevent a conflict from worsening and may involve the deployment of peacekeeping and/ or ob­ server missions. These missions shall be established by the Security Council, directed by the Secretary General, with the consent of the host government; provided that the military observers shall be unarmed, while peace keeping forces may be armed with light weap­ ons although they are not authorized to use force except in self-defense, and the operations must not interfere with the internal affairs of the host country. Other measures may also be undertak­ en against erring members, such as in­ terruption of economic relations, com­ munications or diplomatic relations, e.g., the ban, except for humanitarian reasons, on airflights for Libya because of the bombing of PanAm Flight 103. 1)

Note that these peacekeeping mis­ sions are to take place only upon authorization by the Security Council, and strictly with consent of the host government. Likewise, these missions are meant to be neutral and defensive rather than aggressive, and the personnel deployed to such missions gener­ ally go on a voluntary basis.

b) Enforcement action may consist in the deployment of air, sea, and land forces, or in the institution of a blockade.

Kiifoimiicnl mlions in the post hud been usually stymied by the veto power of the permanent members of the Security Council. 1)

Domestic jurisdiction clause. The Security Council muy take such steps ns are necessary for the settlement of disputes, including preventive or enforcement action, as mentioned above. 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.

2)

Recommendatory Actions. The Se­ curity Council, through its reso­ lutions, may make recommen­ dations. An example is Security Council Resolution 777, where the Security Council recommend­ ed that the Federal Republic of Yugoslavia apply for UN member­ ship because it could not automat­ ically inherit the UN membership of the former Socialist Federal Re­ public of Yugoslavia.

3)

Binding Effect. Following Article 48 of the UN Charter, the decisions of the Security Council for the maintenance of international peace and security is required to be taken by those States determined by the Security Council. Such rhetoric suggests that with regard to such decisions, they appear to have a binding effect on the States required to act.

40

OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL U\W

4)

Voting. a)

5)

c)

The Yalta Formula. Each member of the Security Council shall have one vote, but distinction is made be­ tween the permanent mem­ bers and the non-permanent members in the resolution of substantive questions. Pro­ cedural matters are to be de­ cided by the affirmative vote of any nine or more members. Non-procedural matters are decided by the concurrence of at least nine members, including all the permanent members. The determina­ tion of whether a matter is procedural or substantive is non-procedural. This allows for the so-called “double veto” by a permanent member of the Council. However, the abstention or absence of any permanent member is not considered a “veto”.

Review by the ICJ. Article 34 of the ICJ Statute provides that only States may be parties before the ICJ. As such, it appears that the decisions of the Security Council, which is an entity separate and distinct from the States them­ selves, cannot be brought before the ICJ on account of their resolu­ tions.

Economic and Social Council. Com posed of 54 members elected by t General Assembly for a three-ye term. It shall exert efforts towar higher standards of living, conditio

U SUtGl'VrS OK INl'KKNATlONAl, l AW

41

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. d)

e)

Trusteeship Council. Charged with the duty of assisting the Security Council and the General Assembly in the ad­ ministration of the International Trust­ eeship System. It is composed of: [i] members of the UN administering trust territories; [ii] permanent members of the Security Council not administer­ ing trust territories; and [iii] as many other members elected by the General Assembly as may be necessary to en­ sure that the total number of members is equally divided between those mem­ bers 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. 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 atrd Social Council, and the Trusteeship Council. The Secretary General and Iris staff are international civil servants, and they cannot receive instructions from any government or source outside the UN. The Secretary General enjoys

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OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

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. f)

International Court of Justice. It is the principal judicial organ of the UN; com­ posed of 15 members who are elected for a term of nine years by absolute ma­ jority vote in the General Assembly and the Security Council, in separate elec­ tions, no two of whom must be nation­ als of the same State. They must be of high moral character and possess the qualifications required in their respec­ tive countries for appointment to their highest judicial offices. Under Article 31 of the ICJ Statute, judges are not disqualified from hearing a case simply because they are nationals of any party involved. i.

Background. The ICJ was created in 1945 and replaced the Perma­ nent Court of International Jus­ tice. Article 92 of the UN Charter describes the ICJ as principal or­ gan of the UN.

ii.

Parties. Under Article 34 of the ICJ Statute, only States may be par­ ties to a case before the ICJ.

iii.

Provisional Measures. Under Ar­ ticle 31 of the ICJ Statute, the ICJ can grant provisional measures.

iv.

Third Party Intervention. Under Article 62 of the ICJ Statute, the ICJ, upon a request from an interested State, may allow such a State to intervene in a case before it.

II. SUBJECTS OF INTERNATIONAL LAW

43

v.

No Stare Decisis. Under Article 59 of the ICJ Statute, the decision of the Court has no binding force except between the parties and in respect of that particular case.

vi.

Jurisdiction. The Court decides contentious cases, and renders advisory opinions. Only States, including non-members of the UN, may be parties in conten­ tious 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 interpre­ tation of treaties, any question of international law, the existence of facts constituting breach of inter­ national obligations, and the na­ ture or extent of the reparation to be made for the breach of an inter­ national obligation. Advisory opin­ ions may be given upon request of the General Assembly, or the Se­ curity Council, or the other organs of the UN when authorized by the General Assembly. a)

Challenging Jurisdiction. There is nothing prohibiting parties from challenging the jurisdiction of the ICJ over any dispute.

Belligerent Communities. Liberation movements, or insurgent communities, which have attained a belligerent status under international law, particularly international humanitarian law, may validly enter into legal relations with States and conclude valid internationally recognized agreements. International Administrative Bodies. Certain adminis­ trative bodies, created by agreement among States, may be vested with international personality, provided that they

44

OUTLINE INTRODUCTION TO PUBLIC INTERNATIONAL LAW

are non-political and are autonomous and not subject to control by any State, e.g., ILO, FAO, WHO. 1.

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.

2.

Reparations Case [1949]. In this case, the legal personality of international organizations was affirmed, but it was qualified as being limited. In discussing why international organizations have legal personality, the fact that these organizations were created by States themselves was seen as a material fact. This is because when States create an international organization, it follows that they would have given such a created entity the power to act in the international sphere. However, this legal personality that has been delegated to the international organizations by the States that created them is limited and may only be used to achieve the purposes for which they were created or for acts inherent thereto. a. Ongoing Debate. Is the legal personality of the international organizations created by States a personality that exists only to the eyes of those States that took part in its creation? Or does the existence of these created organizations make them unavoidably and necessarily recognized by the rest of the international community as well? Although the Reparations Case 1949 makes it clear that these created organizations have their own legal personality under international law to the extent which is necessary for them to carry out their objectives, the general rule that recognition is an executive function of a State gives life to the viewpoint that if a State wishes, it may refuse to recognize the personality of an organization that it played no part in creating.

II. SUBJECTS OF INTERNATIONAL LAW

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Rules of Engagement. Given the uncertainty that lies in the relationship between States and international organizations, the best source of the rules of such a relationship are the various treaties which have been created by States on the subject. In general, the Vienna Convention on the Law of T reaties between States and International Organizations is one of the most fundamental treaties that tries to put order to the relationship between States and international organizations. A more specific treaty would be those which created the organizations themselves because these treaties would normally include guidelines which could help understand the relationship between the creating States and the created organization. Domestic Application. With regard to the person­ ality of international organizations in the domes­ tic sphere, the rules for such are often already contained in the treaty which created them. For example, Articles 104 and 105 of the UN Charter specifically provides for the legal capacity of the UN in the territory of its members, and for the enjoyment of the UN of privileges and immunities necessary for the fulfillment of its purpose while in the territory of its members. Distinguishing Factors. In order to distinguish an international organization with legal personality in the international sphere from an ordinary organization without such personality, a look at the powers granted to the organization in its charter is instructive. For example, if the charter of an international organization allows it to bring claims before an international tribunal, this is material because only those with legal personality in the international sphere may bring claims before an international tribunal. If, on the other hand, the organization may only bring claims before a domestic court, this is a good indicator that perhaps that organization does not have legal personality in the international sphere.