Public International Law.pdf

Chapter 1 PRELIMINARY CONSIDERATIONS DEFINITION OF INTERNATIONAL LAW As used in'this treatise, the phrase "International Law" stands only for "Public International Law," as distinguished from "Private International Law." 1

. Public International Law (or tlje Law of Nations) may be defined as the rules, based on the natural moral law and on coinmon consent, which govern the relations of sovereign States and otHer For that matter, the international legal system may be said to consist of: (1) natural moral law principles (premised on the doing of what is good, and the avoidance of what is evil) (2) a set of generally agreed-upon norms of conduct (whether agreed upon by States expressly, as in a treaty, or implicitly, as in the case of customs); (3) and certain authoritative processes for enacting and changing these aforementioned norms (e.g., the rule-making processes of the United Nations Organization). 3

'"Private International Law" (or "Conflict of Laws") is that part or the municipal law of a State, which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not foreign law or foreign laws will be applied." (See E.L Paras, Philippines Conflict of Laws, p. 2). 'See H.B- Jacobini, International Law (1962) p. 1; Oppenheim-Lauterpacht. International Law, (1955), p. 4. *3aul Mendlovitz, "Unrealistic Compliance Goals,* Proceedings of the American Society of International Law," Washington, D.C., April 23-25. 1964, p. 9.

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CHINESE AND RUSSIAN DEFINITIONS OF INTERNATIONAL LAW "International law is the aggregate of various principles, norms and institutions adjusting the relations of B t r u g g l e and cooperation among States, reflecting the adjusted will of the ruling class of various States and enacted thru the agreements among StateB and to be maintained by the individual or collective [effort] of States."(Liu Fengming, Essentials of Modern International Law, 1982, p. 4). This definition is very similar to that of the Soviet writers of the 1960s. See, e.g., the following definition of international law in a 1964 Soviet textbook: T h e aggregate of norms which are established by the agreement of States, including those with different social orders, express the wills of these States; regulate their struggle and collaboration on the basis, and in the interest, of the effective maintenance of peace and peaceful coexistence; and enforced when necessary, by collection or individual State action." (Mezhdunarodnoe Pravo, International Law [1964]). -

OTHER DEFINITIONS OF THE SUBJECT (1) W I L S O N — Public International Law is the body of generally accepted principles governing relations among States.* (2) LAWRENCE — Public International Law may be defined as the rules which determine the conduct of the general body of civilized States in their mutual dealings. 1

(3) HACKWORTH — International Law consists of a body of rules, evolving for the m o s t part out of experience and necessity, which governs the relations between States. 8

(4) McDOUGAL — International Law is not a pre-existing body of rules, but a comprehensive process of authoritative decision in which rules are continuously made and remade. 7

'Wilson, Handbook of International Law, p. I . 'Hachworth, Digest of International Law, Vol. 1 (1940), p. 1. *Hackworth, Digest of International Law, Vol. 1 (1940), p. 1. 'McDougal and Associates, Studies in World Public Order (1960), p. 1.

PRELIMINARY CONSIDERATIONS

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(5) A B B A E B A N — International law is the law which the wicked do not obey and which the righteous do not enforce. COMMENT ON THE USE OF THE PHRASE "INTERNATIONAL LAW" It would seem from the phrase "international law" that nations (not States) are involved; this is misleading for the subject really deals with States. Upon the other hand, the phrase "Law of Nations" is even more deceptive, for one would think that internal or municipal jurisprudence (not international affairs) is dealt with. 8

IMPORTANCE OF THE SUBJECT With the advent of travel in outer space, the world has all of a sudden emerged smaller, more compact, and pleasingly unified (at least in scientific rivalry). How to preserve thi6 singular unity, in the midst of nuclear advances albeit waning ideological conflicts, is the all-important problem of our generation. Thus, in one of the classic speeches of the great American President, John Fitzgerald Kennedy, he stated quite truthfully that before the world makes plans for a better future, it must first make sure that there will be a future. To assure the existence of that future in a universe of exploding megaton bombs, star wars, and nuclear missiles is to our mind the primary purpose of Public International Law. Legal anarchy inevitably ends in disaster; j e a c e can come .only with the rule of law. 9

• ^ g n o f i c a U j , thfe Auctions of Public International L A W may (I) the maintenance of international peace and order: a rule of basic discipline among States in a war-weary world; 10

"The phrase "International Law" was first used by Jeremy Bentham in his work Introduction to the Principles of Morals and Legislation (1870). T h e "Rule or Law" was eipreosly recognised in the Declaration of Delhi (January 10. 1969) of the International Congress of Jurist*. Journal of the International Commission of Juruta, Vol. II, No. 1, Spring-Summer (1959). '"See Preamble, UN Charter, 1st clause.

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(2) the p r ^ f f * ' ™ of--State Hghtw and of fundamental human rights" — thru sanctions, both peaceful and coercive; 11

(3) the economic, social, cultural, and technological development of States and such other entities as may be possessed of an international personality. * 11

There are at least three (3) important schools of thought as to the basis or foundation of Public International Law. jtlf" The Natural Law School This theory postulates the natural moral law as the basis of Public International Law. The natural moral law is said to be the voice of conscience, a rule of human conduct implanted by God in the very nature of man. Thru this law, a man is supposed to do whatever is right and to avoid whatever is evil. Thus, Pufendorf has expressed the opinion that laws not in conformity with the moral nature of man cannot be binding on sovereign States. On his part, Austin, in his "Province of Jurisprudence Determined," pp. 147-148, posits that "international law is founded on the opinions generally received among civilized nations, and its duties are enforced only by moral sanctions,_by_£ear-on-the part of nations, or by fear on the part of sovereigns, of provoking general hostility and incurring its probable evils, in case they should violate maxims generally received and respected." 13

$2$ The Positivist School Advocates of the PositiviBt School insist that the only basis of "See Lhe Universal Declaration of Human Rights (1948) which says in part that "it is essential, if man is not to be compelled to have recourse, to rebellion against tyranny and oppression that human rights should be protected by the rule of law." '^Hans Kelsen says that international law is a coercive order giving socially recognized sanctions against international wrongs. (Kelsen, Principles of International Law, pp. 401; 203-209). President Kennedy once proposed the creation of a new world of law, with competition in the scientific and economic fields instead of on the battlefields. (Inaugural Address, 1961). "Samuel von Pufendorf. pie Classic of International Law, Vol. I, p. 266. Jacobini suggest* that the,tenn "naturalism" refers to principles of justice which may be ascertained by the use of REASON. ( H.B. Jacobini, International Law, p. 22 ). 1

PHKLTMTNAKY CONSIDERATIONS

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Public International Law is the common consent of Stat**. ThiB common consent, according to the Italian Gentili, can be found in acquiescence to customs. Savigny" and Kelsen, upon the other hand, emphasize international legal customs. The latter belong to what is termed the Historical School, a variant of the Positivists. 14

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The Eclectic School (the Grotian School) This third viewpoint, the Eclectic School, maintains that Public International Law ie premised both on the natural moral l a w , and on common consent (or rules of positive origin). The legal scholars belonging to this school a r e _ s o m e t i m e B referred to as the Grotians (derived from'sHugo Grotius^the "father of International Law"). -"' 17

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THE CORRECT THEORY In common with most writers on the subject, we are inclined to side with the Eclectic School. A State, after all, consists of rational human beings; it must, therefore, be guided by rules of moral conduct, e.g., the right of a State to defend itself exists, independently of any treaty or custom. This right is implicit in the natural moral law. Upon the other hand, it Bhould also be admit* ted that a State is bound by its treaty commitments and by international legal customs. Thus also, in the absence of m u t u a l consent, recognition by States of one another, and full diplomatic intercourse among them, will n o t exist. 19

IS INTERNATIONAL LAW TRUE LAW? To answer the question — is Public International Law true law — it is needful for us to first define what is meant by l a w . In its mostgfineraI_ sense/ law may b e l a i d to be "the_ instructions from God;" in a more specific sense, l a w j s a reasonable

"Alberico Gentili, Classics of International Law, p. 1. Friedrick K. von Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence, p. 7. "Kelsen, op. cit., pp. 403-447. "In case of a real conflict (this would, of course, be rare), the natural moral law should prevail over the rules of positive origin. "H.B. Jacobini, op. cit., p. 23. "Note the definition of the subject which has been adopted by the authors. l&

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rule of action promulgated by competent authority for the common good. What is meant by "competent authority is a ^superior State whose commands have to be performed by so-called sovereign States; in other words, if taw is to be construed as a superior will imposed on inferior beingB, Public International Law, in our opinion, is law only insofar as it is premised on the natural moral law, and is not law insofar as its basis is the common consent of equal States. 10

If, however, "competent authority" refers to equal States, which observe expressly (thru conventions) or implicitly (thru customs) common standards of conduct in their mutual relations, then we dare say that Public International Law is true law. This conclusion is evident from the following facts: (1) Firstly, international law is "discussed by the methods appropriate to jurisprudence, and not by those of moral philosophy." (2> Secondly, State officials, in arguing for their foreign policies, appeal "not to the general feeling of moral rightness, but to precedents, to treaties, and to the opinions of specialists." 31

(8) Thirdly, international law has judicial sanctions enforced both by international and municipal tribunals (Thus, in the Nuremberg Judgment of 1946, German war criminals who had defied international law, were severely punished.) 21

(4) Fourthly, at various times in history, international legislation has been enacted (such legislation has been made, for example, by the United Nations Organization, the International Court of Justice, the Hague Conferences of 1899 and 1907, the International Military Tribunal in Nuremberg). This Military Tribunal, in defending the jurisdiction granted to it by the Agreement and Charter of the Tribunal, said:

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^Thus, it ia understandable why Austin who considers law to be a superior will imposed on inferior beingB does not regard Conventional and Customary Public International Law as true law. To him, ' .e so-called law of nations con\J sists of opinions or sentiments current among nations Kencrally. It, therefore, is not law properly so-called. (AuBtin, The Province of Jurisprudence Determined 11835], Lecture V ) . "Pollock, Oxford Lecturers (1890), p. 18. S e e the Nuremberg Judgment (1946), 41 American Journal of International Law (1947) p. 172. m

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T h e making of the Charter waa the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered, and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on the part of the victorious nations, but the expression of international law existing at the time of its creation, and to that extent is itself a contribution to international law." 23

TRANSNATIONAL LAW As that body of municipal and international norms governing public and private transactions that transcend national boundaries or national jurisdiction, transnational law is an emerging body of law based upon ^Universally accepted general"p>Tncrples~of law supplementedJ?y that portion of the municipal law of disputants applicable in an attempt to rei aspb/e conflict. Proponents nts of transnational law, a term coined b] >y(Philip C. Jessup^n the 135 1950a, . suggest that there are major gaps in traditional international law and these needs can best be bridged at levels other than universal. Such gaps are particularly evident in such areas as contracts and concessions between governments and foreign nationals. (Bledsoe & Boczek, The International Law Dictionary, 1987 ed., p. 32). JUS CIVILE' As the civil law of ancient Rome that applied to Roman citizens^7uJ civile* formed part of the foundation for later national legal systems of Europe and other parts of the world. It also contributed many concepts and principles now embodied in international law, governing, for example, acquisition of title to territory, State liability for actions deleterious to other states, and freedom of the high seas. (Bledsoe & Boczek, The International Law Dictionary, 1987 ed., p. 15).

This is a peremptory norm of general international law from wJiiclL States cannot escape. TTowever, for a norm to be considered jus cogens, it must be accepted and recognized_bxthe international

a

lbid.

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community of States as a whole. The most eiplicit expression of juscogens in the contemporary period is Article 53 of the 1969 Vienna Convention on the Law of Treaties, where it \B stated that "[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law." By this is meant that a treaty cannot modify or evade a norm of jus cogens unless it is done by the international community as a whole. THe rules against aggression and genocide are the two peremptory rules of international law enjoying general acceptance. (Bledsoe & Boczek, The International Law Dictionary, 1987 ed., pp. 15-16). 'JUS GENTIUM' This so-called "law of tribes" .refers. tp_ that body of Roman (civil) law that applied to all non-Romans in the Empire as well as dealings between Romans and non-Roman6. Since it governed the relations with and among disparate non-Roman peoples, jus genHum has provided international law with many concepts that border on private law, such as contracts, treaties, and property rights and, in the classical legal literature on "the law of nations," acquired the meaning of present-day public international law. (Bledsoe & Boczek, The International Law Dictionary, 1987 ed., p. 16) 'JUS NATURALE' As the law of reason, jus naturale (believed to be of divine origin), with its emphasis upon order and reason, was influential in the early development of international law thru theorists such as Francisco de Vitoria, FrancisoJSuarez, Alberico Gentili, and Hugo Grotius. In their view,
^

As the legal maxim that the subsequent law abrogates the preceding law, lex posterior derogat priori (or^impTy(fef 'posterior')

PRELIMINARY CONSIDERATIONS

suggests that if a law explicitly contravenes a prior treaty, or a treaty contravenes prior law, or a treaty contravenes a prior treaty, the courts will apply the moat recent ejpr»»mttn pf thu lnw (Bledsoe & Boczek, The International Law Dictionary, 1987 ed., p. 17). DOES THE UNITED NATIONS ORGANIZATION REALLY HAVE THE POWER TO ENACT INTERNATIONAL LEGISLATION? As has already been intimated, the United Nations Organization has at various times enacted international legislation (e.g., The Resolution on the Granting of Independence to Colonial Countries and People). * 2

The question, however, arises: is the Organization really empowered to do this? Professor SkubiszewBki answers this categorically: 25

"We know both from the reading of the UN Charter and the history of its drafting (the defeat of the Philippine proposal on this right presented at the Conference in San Francisco) that / o power to make law for States has been conferred on the General Assembly or any other organ of the United Nations. For such power, whether comprising legislation by virtue of a unanimous vote, or by majority decision with the guarantees of the system of contracting-out, or by majority decision binding for all, must always be based on an E X P L I C I T A N D U N E Q U I V O C A L T R E A T Y A U THORIZATION." 20

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This lack of full-fledged legislative powers on the part of the General Assembly may perhaps be attributedJ,o_two (2) factors: (1) Firstly, States are still somewhat reluctant to bestow regulative competence on international organizations;

^Paragraphs 3 and 4, and part of paragraph 5 of said Resolution (No. 1514 (XV)) virtually formulate new provisions of international law. Moreover, the Resolution unequivocally provides that all countries must "observe faithfully and strictly . . . the present Declaration." It is to be regretted, however, that the UN was unable to impose its will on recalcitrant members. f Kizysztof Skubiszewski, The General Assembly of the United Nations and Its Power to Influence National Action, A.J.I.L., April 23-25, 1964. pp. 153-154). Docent, University of Pozman, Poland, and Visiting Scholar, Columbia University. " 9 UN CIO Does. 79 (1945). "Skubiszewski, op. cit., p. 153. B

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(2) Secondly, to achieve its avowed objectives, the UN is more in need, not of legislative powerB, but of executive prerogatives — particularly rights which would enable the Organization to initiate and maintain peace-restoring and peacekeeping operations." Be this as it may, the fact is that the General Assembly would be able to legislate on international norms only if the member-States will give fall backing and compliance thereto. * 2

Let it be noted, however, that in matters of internal procedure (such as the structure and functioning of the U N ) , addressed not to the member-States, but to UN organs and employees, the General Assembly has undisputed competence. This is so because the Assembly has been expressly conferred this right, and because, even without such express authorization, the right may be considered implied. In many instances, this right to make internal regulations, has influenced the policies of various States. 30

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It should be noted, nonetheless, that according to the Advisory Opinion of the International Court of Justice on the so-called "Assessments Case," the General Assembly has the power to levy assessment or contributions from the Members, not only for the ordinary operational expenses in the "budget" (Art. 17, par. 2, UN Charter), but also for the "peacekeeping" activities of the Assembly as exemplified by the creation and maintenance of UN military forces to put an end to the Suez and Congo crises. (Carlos P. Romulo, "The United Nations Today," Philippine International Law Journal, Oct.-Dec. 1962, p. 528). CLASSIFICATION OF PUBLIC INTERNATIONAL LAW Classified according to the manner in which the common consent of StateB has been given (binding effect), Public Internatibnai Law consists of:

™Ibid., p. 154. T h e present day success of the General Assembly can be attributed more to the "traditional techniques of conference diplomacy within the United Nations." (Ibid., p. 163). "Arts. 21, 22, 62, and 101, UN Charter. ''Advisory Opinion or the International Court of Justice on "Certain Expenses or the U N , " and "Effects of Awards of Compensation Hade by the UN Administrative Tribunal," (I.C.J. Rep. [1962). pp. 161, 168 (1954)).

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(y{ Conventional International Law — if the con Bent has been given E X P R E S S L Y (as in the case of multipartite covenants and treaties) 31

(2) Customary International Law — if the consent has been I M P L I C I T L Y or T A C I T L Y given (as by continuous acquiescence to international customs) (3J General International Law — if P R E S U M A B L Y consent has been given to the fundamental natural principles governing international,, intercourse. „ 33

According to applicabjMy of subject matter, traditionalists led by Grotius classify the Bubject into: ( i f the International Law of Peace; (JVf the International Law of War; the International Law of Neutrality. According to content- o{L_subje£L matter, we have: t l f International Constitutional Law (this is essentially political in character, and may be beat exemplified by the UN Charter, and the Treaty of Versailles which ended World War I ) ; International Administrative Law [this is fundamentally technical in scope, and may include ordinary treaties, customs, and court decisions on: (y 34

(a)

International Corporation Law;

(b)

International Criminal Law;

(c)

International Torts and Damages;

(d) International Commercial Law (including trade agreements, and foreign investment legislations);

^Several States are involved. "Conventional and Customary International Law together constitute PART I C U L A R or E X P L I C I T International Law (particular because only specific agreements and specific customs are embraced within the law), as distinguished from G E N E R A L or I M P L I C I T International Law (which consists of general principles of l a w ) . Viewed from another angle, P A R T I C U L A R International Law may refer to that followed by a particular country, while G E N E R A L International Law refers to that recognized by the family of nations, or the world at large. " S e e H.B. Jacobini, op. cit., pp. 29-30.

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(e)

International Financial Law

(f)

International Maritime Law.].

HOW PUBLIC INTERNATIONAL LAW CAN BE OBSERVED States can, in general, guarantee the observance of Public International Law by a firm adherence, to the principles of the natural moral law (e.g., good faith) ana JO the spirit and intent of treaty stipulations and International customs. In particular, this guaranty can be made thru peaceful means means (e.g., diplomatic negotiation, and arbitration); thrn-forabie^measurea short of war (e.g., the breaking off of diplomatic relations, boycott, non-intercourse); and finally thru collective enforcement measures (e.g., UN intervention in Korea, in the Suez Canat7'C6hgo Crises, IraqKuwait and the U.S.-led Allied Forces, Bosnia, Somalia, Cambodia, Haiti, etc.) 34

Private individuals, upon the other hand, can do their share by prompt and willing compliance with legislative, executive, and judicial acts specifically affecting their persons, and their property rights. WHY PUBLIC INTERNATIONAL LAW IS OBSERVED ^ (1) i V

States observe Public International J-aw because of their: (a)

belief in the reasonableness of the Law of Nations;

y

(b)

fear of being unconventional;

^

(c)

fear of reprisal from other States.

Lawrence says: "As a general rule, in their dealings with one another, States as a matter of policy and at their own instance, observe the rules of Public International Law: (a) Partly because of the conscientious conviction that they are good and right; (b) Partly because of those subtle influences which make it difficult for a man or a body of men to act in defiance of the strongly held viewB of those with whom they habitually associate;

s

See I Oppenheim, International Law, p. 6.

(c) Partly because of fear but a disregard of them would in the long run bring evil to them. In certain cases, a State is compelled to observe these rules thru the use of actual force or thru threat of the use thereof by other States bent on securing strict observance of said rules." 36

(2) Private individuals observe Public International Law because they are afraid of legislative, executive, and judicial sanctions within their respective countries and because they realize, as rational beings, that after all, moBt of the ruleB of the Law of Nations, founded as they are both on the natural moral law and on common consent ( o n the part of the States), are for their o w n good. As a matter of fact, the collective opinion of the private individuals of the entire civilized world today plays "in an ever increasing degree the part of sanctioning authority. With the growth of international intercourse and international interdependence the danger of isolation or of discredit or even of 'boycotting' becomes a matter of increasing importance in the conduct of States. The national press and periodical literature, with exceptions no doubt, are among the chief factors in the development of this public opinion, but it is by n o meanB dependent upon them. Personal intercourse among citizens of the same country, and between statesm e n , politicians, and citizens of different countries has a still greater effect in the creation of the mental attitude of nations toward each other.""

PUBLIC INTERNATIONAL LAW DISTINGUISHED FROM MUNICIPAL LAW ^Public International Law' >T)

principal sanctions are: (a) (b)

reprisal war

collective responsibility for failures and omissions relatively decentralized coll*

ive

M

comparatively hgjxlzr to enforce (it being imposed by the will of equals, i.e., sovereign States)

Lawrence, Principle* of Intarnational Law, p. 8.

"See Encyclopedia Britannia, Vol. 12, p. 623

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Municipal Law (1)

principal sanctions are: (a) civil execution (in civil law) (b) criminal punishment (in criminal law)

(2)

individual responsibility generally prevails

(3) relatively a centralized coercive order (in the sense that one central authority — the domestic government alone — generally legislates for everybody within the State). 38

(4) comparatively easier to enforce, because the people who are the subjects of the law invariably recognize the "superiority" of the government. 39

The American Bar Association Special Committee on World Peace Through Law has made the following remarkable observations: T h e rule of law among nations meanB the reliance upon law as opposed to arbitrary power in international relations. The fact that the rule of law among nations has not been effectively established on the basis laid in the UN Charter, and that the institutions and procedures provided under the terms of the Charter have not been fully utilized, appears to be due to a large part to the practical construction that has been given to the principle, also set forth in the Charter, of the sovereign equality of all members of the United Nations. The word 'sovereign' has been construed in practice as the equivalent of 'above the law.' T h e word 'sovereign' which means 'supreme' has in fact NO PROPER P L A C E in the context of international relations. The concept of sovereignty is applicable only within nations. No State is sovereign outside its own borders, and even w i t h i n those borders the supreme authority of the State is subject to constitutional and other limitations. It is of the essence of the rule of law among nations that no person is above the law. International law, including that which is derived from custom and that which is set forth in treaties, is, in fact, the sum

" S e e Haas Kelsen, op. cit., pp. 401-403. " S e e the Rule or Law Among Nations, Background Information, April, I960 pp. 4-5.

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of the binding commitments of States with respect to the conduct toward one another. T h e rule of law in a national community is backed by readily available force as well as by the sentiment of t h e good people' of the community. The rule of law in the international community is not backed by readily available force. The sanction of the use of force by aggrieved nations formerly regarded as in the interest of the international community as a whole, was deliberately relinquished in the Charter except as to individual or collective self-defense against armed attack. The provisions of the Charter under which sanctions might have been applied by the Security Council have been frustrated, and the alternative procedure authorized in the Uniting for Peace Resolution of 1950 is difficult to set in motion. "In these circumstances the rule of law among nations, for which the bases were laid in the Charter, would appear to be without effective sanctions except for one central fact the significance of which has not been fully realized. That fact is the imminent possibility of the destruction of the greater part of the population and the resources of the entire world by nuclear weapons, ballistic missiles or by another means as a result of the unwillingness of States to submit to the rule of law in their international relations. Full realization of the significance of the fact may lead, before it is too late, to the submission of all States to the rule of law among nations."* 0

RELATION BETWEEN PUBLIC INTERNATIONAL LAW AND MUNICIPAL LAW (IN GENERAL) Public International Law, although international in character, is, in a sense, part and parcel of the municipal law of a State, inasmuch as the State by being a member of the Family of Nations, implicitly agrees to abide by its rule. Just as "no man is an island sufficient unto itself," so is no State capable of living today in dreadful isolation from the reBt of the world. 41

**Tba Rule of L A W Among Nations, Background Information, April, I960, pp. 4-6. " S e e T h e Paquate Unburn' (1900), 175 U S 677.

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IB Public International Law independent of Municipal Law? There are two viewpoints on this question: the theory of MoniBm of which Hans Kelsen is the notable exponent; and the theory of Dualism (or even Pluralism, as will subsequently be pointed out). \Monistic View:'According to the Monists, both l a w s ^ e p e n d / on each other; both are ultimately directed to the same individual (for, after all, States are composed of individuals); indeed "the behavior of a State is reducible to the behavior of the individuals representing the State." While ostensibly public international law deals with foreign affairs and national law concerns itself with domestic affairs, "every so-called domestic affair of a State can be made the subject matter of an international agreement and so be transformed into a foreign affair."** 42

Dualistic or Pluralistic View: According to the Dualists — Public International Law is completely distinct from Municipal Law. Inasmuch as each State has its own Municipal Law, Public International Law varies with as many Municipal Law, Public International Law varies with as many Municipal Laws as there are sovereign States — hence the term "Pluralism" or "Pluralistic View." The Dualists and Pluralists hold that international law andjiational law are mutually pidependent^pf each other, each possessed of ^TdTsTihct subject matter^^iBreign affairs" and "domestic affairs," respectively). They also believe that international law is "interstate law" law, whereas national law, so to speak is "one-state" law. International Law to them is created by the cooperation of two or more States; municipal law, upon the other hand, is created by acts of one State alone, and even by actuations which are not officially "Acts of State." 44

RELATION BETWEEN PUBLIC INTERNATIONAL LAW AND "PHILIPPINE- MUNICIPAL LAW Public International Law has been made an integral part of our Constitution in light of a provision in the Declaration of Principles in the 1935, the 1973, and the 1987 Philippine Constitutions: Thus, Art. I I , Sec. 3 (1935 Constitution), reads:

"Kelsen, Principles of International Law, p. 404 "Ibid. "Kelsen, op. eit., pp. 406-406.

PRELTMINART CONSIDERATIONS -

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"The Philippines renounces war ae an instrument of national policy, and adopts the generally accepted principles of international law as a part of the law of the Nation." Thus, also Art. I I , Sec. 3 (1973 and 1967 Constitutions), " f; eucTW** CV ^n^^rrn ^*.'0

ready-

y ^ T h e Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international l a w as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations." "War" as used in the Article refers clearly to "aggressive'' war, inasmuch as Art. V I , Sec. 15 of the 1935 Constitution states T h e Congress shall, with the concurrence of two-thirds of all the Members of each House, have the sole power to declare war" (evidently referring to a defensive war); correspondingly. Art. V I I I , Sec. 14(2) of the 1973 Constitution says that T h e National Assembly, by a vote of two-thirds of all its members, shall have the sole power to declare the existence of a Btate of war." In the same manner, Art. VI, Sec. 23(1) of the 1987 Constitution provides that T h e Congress, by a vote of two-thirds of both houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war." T h e generally accepted principles of international law" include, inter alia: (1)

the acquisition of territory by prescription;

(2) the doctrine of res judicata; (3) the rule that an accuser-State cannot at the same time be the judge; (4) the principle of "prior exhaustion of national remedies" before resort can be had to international tribunals; and 45

„. (5) the rule that all persons (whether military or civilian), guilty of waging aggressive w a r B , should be held accountable therefor. 46

"The Interhandet Case, Decision of the Internationa] Court or Justice, March 21, 1949. s **Kuroda v. Jalandoni, 83 Phil. 171 (1949). y

y

18

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[NOTE: Regarding the incorporation of international law into the municipal law of the Philippines, four theories may be cited: (a) the T R A N S F O R M A T I O N doctrine (which provides Lhat to become a part of municipal law, each individual rule of international law must be consciously incorporated in it by legislative act, promulgation of a treaty, etc.) (b) the ADOPTION doctrine (which means that the municipal laws of a country implicitly include principles of international law — without need of express incorporation — BUT only insofar as said principles are C O N S I S T E N T with municipal law) (c) the H A R M O N I Z A T I O N doctrine (where international law is applied only when considered A P P R O P R I A T E by local tribunals). (See D.P. O'Connell International Law, Vol. I, pp. 50-51.) (d) the RESTRICTED A U T O M A T I C doctrine (where as long as there is constitutional authority , international law is automatically considered part of our law, whether or not there is inconsistency with municipal legislation, and whether or not express reference to international law is made in specific statutes, B U T restricted in the sense that only GENERALLY ACCEPTED PRINCIPLES OF INTERNAT I O N A L L A W have been adopted as part of the law of the nation. This would seem to be the Philippine position on the matter.]

THE INTERHANDEL CASE (Decision of the International Court of Justice of March 21, 1949) FACTS: Prior to the Second World War, a Swiss corporation, the Interhandel, was closely affiliated with the German firm, t h e I.G. Farben Company. The Swiss corporation owned certain shares in the General Aniline and Film Corporation, an American company registered in Delaware, U.S. When World Was II broke out, the Interhandel assets ( t h e shares) in America were frozen by the United States on the theory that they were the property of t h e German firm "I.G. Farben," and were, therefore, to be regarded as "enemy property" in view of the war between Germany and America. In view of the refusal of the U.S. government to unblock the

$100,000 Interhandel assets, the Swiss government brought this action before the International Court of Justice. Switzerland alleged that in 1942, Interhandel had severed all connections with the German company, and had, therefore, ceased to be under German control. Upon the other hand, the United States objected to the jurisdiction of the Court. H E L D : The case should be dismissed because granting the truth of the allegations of the Swiss government. _atillJ-h» International Court has NO jurisdiction over the case for the simple reason that Switzerland has N O T Y E T exhausted the local remedies available to it in the courts of the United States. 7y» T

Kuroda v. Jalandonl 83 Phil. 171

FACTS: Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces, was charged before a Military Commission set up by Executive Order No. 68 (of the President of the Philippines). This Executive Order also established a National War Crimes Office and prescribed r u l e s a n d regulations governing the trial of accused w a r criminals. Kuroda alleged: (1) that Executive Order N o . 68 was illegal and unconstitutional; (2) that the Military Commission lacked jurisdiction to try him for acts violative of the Hague and Geneva Conventions (relating to war) as the Philippines was not a signatory to the first, and that it had Bigned the second only in 1947 (long after the acts complained of had been committed); and (3) that the participation of two American attorneys in the prosecution was violative of our national sovereignty. Kuroda, thus, petitioned for a writ of prohibition from the Supreme Court, directed against the Military Commission. HELD: (1) Executive Order N o . 68 is legal and constitutional — because Art. 2 of our (1935) Constitutional provides in Sec. 3. that —

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20

T h e Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation." In accordance with the generally accepted principles of international law of the present day, including the Hague Convention, the Geneva Convention, and the significant precedents of international jurisprudence established by the United Nations, all those persons, military or civilian, who have been guilty of planning, preparing, or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor. Consequently, in the promulgation and enforcement of Executive Order N o . 68, the President of the Philippines had acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution. Indeed, the promulgation of Baid executive order, is an exercise by the President of his powers as Commander-inChief of all our armed forces, as upheld by this Court in the case of Yamashita v. Styer." (2) With regard to the second contention, it cannot be denied that the rules and regulations of the Hague and Geneva Conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope, and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory. (3) With reference to the third allegation — be it noted that when the crimes charged against petitioner were allegedly committed, the Philippines was under the sovereignty of the United States, and thus we were equally bound together with the United States and with Japan, to the rights and

4,

L-129, 42 O.C. 664.

PRELDflNARY C O N S I D E R A T I O N S

21

obligations contained in the treaties between the belligerent countries. These rights and obligations were not erased by our assumption of full sovereignty. If, at all, our emergence as a free State entitles us to enforce the right, on our own, of trying and punishing those who committed crimes against our people. Applying the rule we stated in Laurel v. Afisa,* we hold that war crimes committed against our people and our government while we were a Commonwealth are triable and punishable by our present Republic. The petition for prohibition is thus hereby denied. 9

Note: Elsewhere in the Constitution are provisions concerning inter alia, the following topics of international law: (1) the delimitations of Philippine territory (Art. 1,1935 Constitution), and the definition of Philippine territory (under Art. 1, Sec. I, 1973 Constitution and Art. I, Sec. 1, 1987 Constitution). (2) the making of treaties, and the appointment and reception of diplomatic and consular officials. (Art. V I I , Sees. 21 and 16, 1987 Constitution). (3) the original jurisdiction of the Supreme Court over cases affecting ambassadors, other public ministers, and consuls. (Art. V I I I , Sec. 5[1], 1987 Constitution). (4) the power of the President to contract and guarantee foreign loans on behalf of the Republic. (Art. V I I , Sec. 20, 1987 Constitution). RULE WTTH RESPECT TO FILIPINOS WHO HAVE ACQUIRED AMERICAN CITIZENSHIP If a Filipino acquires lawfully a parcel of private land (i.e., any land of private ownership) and later becomes an American citizen, what happens to his ownership over the land? The person's ownership over the land continues but the land, except in the case of hereditary succession may be transferred only to individuals.

**78 Phil. 372. The Laurel Case said: T h e change of our form of government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during the Commonwealth, because it is an offense against the same government and the same sovereign people."

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corporations or associations qualified to acquire or hold lands of the public domain. (See Sec. 7, Art. X I I , 1967 Constitution). Sec. 8 provides, however: "Nothwithstanding the provisions of Sec. 7, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, Bubject to limitations provided by law." NOTEWORTHY FACT: The Philippines is a member of the United Nations Organization and several of its organs and agencies. Then, too, the Philippines is a signatory to the Universal Declaration of Human Rights, to the A S E A N (Association of Southeast Asian Nations) consisting of the Philippines, Malaysia, Indonesia, Thailand, Singapore, and Brunei, and to various other military and civil or commercial treaties. It has been suggested that in arriving at decisions, the A S E A N should disregard unanimity and substitute the more flexible consensus method. (See suggestion of then Singapore Prime Minister Lee Kuan Yew in his keynote address at the ninth A S E A N C O N F E R E N C E of economic ministers). 49

Be it remembered too that in our Civil Code, we have the following provisions: "Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations." 50

Then a g a i n , under our Rules of Court, among the thingB considered to be of judicial notice are the following: (1) (2) ality; (3) (4) seals."

the existence and territorial extent of States; their forms of government and symbols of nationthe law of nations; and admiralty and maritime courts of the world and their

"Bulletin Today, April 23. 1980. " A r t . 14, Civil Code of the P h i l i p p i n e •'Rule 129, Sec. 1. Rules of Court.

23

PRELIMINARY CONSIDERATIONS

CONFLICT BETWEEN PUBLIC INTERNATIONAL LAW AND MUNICIPAL LAW As a matter of almost universal acquiescence and practice, we can postulate the following propositions in case of a clash or conflict between the norms of international law and the norms of municipal legislation: (1) If the matter were to be decided by an internationally created tribunal, there is no doubt that international law would be held to prevail. [Thus, in the Greco-Bulgarian "Communities" Case, the Permanent Court of International Justice (1930) held: "It is a generally accepted principle of international law that in the relations between Powers who are contracting Parties to a Treaty, the provisions of municipal law cannot prevail over those of the treaty." Similarly, in the Aroa Mines Case, the tribunal concerned ruled: T h e r e could be no question that national laws muBt yield to the law of nations if there was a conflict."] 52

53

(2)

If the matter is decided by a municipal tribunal:

•(a) international law would prevail if it conflicts with a /breignjmunicipal law ( N O T E : It has also been held that International tribunals, BB organs of the law of nations, must neglect even the Constitution of a State in favor of international law.") 54

56

(b) municipal law prevails if the conflict is between international law and the municipal law of the tribunal deciding the case. ^ Scbxoeder v. Bissel Collector 5 F. (2d) 838 FACTS: Under Sec. 447 of the American Tariff Act of 1922, it is unlawful for any ship to unload any part of its

"Publication of the Permanent Court of Justice, Series B. No. 17. p. 32. "Aroa Mines (Ltd.), Ra Is ton's Report (1914), p. 344. "Schufeldt Claim, Decision of July 24, 1930. George Pinson Case, Annual Digest 1927-1928, Case No. 4, French-Media n Mixed Claims Commission (1928). "•See Mortenmn v. PeUru, Grant Britain, High Court of the Judiciary of Scotland. 1906. 8 Sessions 93.

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24

cargo of goods at a place other than a port of entry. Now then, an English vessel unloaded part of its cargo at a place 19 miles away from the coast of the United States, whereupon it was seized by the American coast guard. It was alleged that the seizure violated the tenets of international law because it had been made beyond the territorial or maritime zone of the United States. HELD: The seizure is valid despite the alleged violation of international law. What is important is that a statute of the United States has been violated. In justifying its position, the American court said that: "International law is law in so far as we adopt it, and like all common or statute law, it bends to the will of Congress. . . [even if] the act may contravene recognized principles of international comity." * 9

CONFLICT BETWEEN A TREATY AND A CONSTITUTION In case of irreconcilable conflict between a treaty and a municipal constitution, which should prevail? (1) From the viewpoint of the world, international law ought to prevail to avoid international embarrassment and to prevent charges of international delinquency. The State must accordingly update its municipal constitution. 57

(2) From the viewpoint of the State itself, it would seem that most constitutions (including our own) provide that a treaty may be declared unconstitutional by a State's own national courts; it is, thus, clear that, from this standpoint, municipal law prevails — though of course it should also be evident that "the decision of a national court, while binding on municipal authorities would have NO international effect," for indeed it is a settled principle of international law that a sovereign cannot be permitted to set up its municipal law against a claim founded on international law. (See Thomas v. Gray, where the Supreme Court of the United States ruled that "a treaty may supersede a prior act of Congress; and an act of Congress may supersede a prior treaty.") 58

**See also "Over the Top." 15 Fed. Reporter. 2nd Series 842. "Decision of the Mexican-French Claims Commission of Oct. 19, 1928 1 6 9 U.S. 264. M

PBSLDfDUBY C O N S I D E R A T I O N S

N O T E : In the Philippines, the Supreme Court, by way of an obiter dictum, has also opined that a treaty may be nullified by a subsequent act of the^Philippine Congress. 89

/ l c h o n g v. Hernandez L-7996, M a y 31, 19S7 FACTS: Congress of the Philippines enacted the Nation^ alization of the Retail Trade Act, prohibiting aliens in general to engage in retail trade in our country. It was contended that the Act violated the U . N . Charter, the U . N . Declaration of Human Rights, and the Philippine Chinese Treaty of Amity of April 18, 1947. HELD: The Retail Trade Act does not violate the Charter of the U.N. or the U.N. Declaration of Human Rights. The U.N. Charter imposes no strict or legal obligation on the States regarding the rights and freedom of their subjects. And the Declaration of Human Rights contains nothing more than a mere recommendation or a common standard of achievement for all peoples and all nations. Members of the United Nations, such as Norway and Denmark, prohibit foreigners from engagi n g in retail trade. Most nations enact laws against foreigners engaged in domestic trade. Neither has the Treaty of Amity between the Philippines and China on April 18, 1947 been violated. The Treaty merely guarantees equality of treatment to Chinese nationals in the Philippines — equality "upon the Bame terms as the nationals of any country" (except, of course, the Parity Amendment in favor of Americans). And even if the Retail Trade Law infringes on the Treaty, it should be remembered that a Treaty is always subject to qualification, or amendment by a subsequent law. A Treaty may never curtail or restrict the police power of the state.

Phil. Association of Free L a b o r Unions ( P A F L U ) et al. v. Secretary of L a b o r et al. L-22228, Feb. 27, 1969 FACTS: Sec. 23 of Rep. Act No. 875 requires registration with the Office of the Secretary of Labor, before a labor

"lehong v. Hernandez, L-7996, May 31, 19S7.

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organization can acquire legal personality. Said See. 23 reads as follows: "Any labor organization, association, or union of workers duly organized for the material, intellectual, and moral well-being of its members shall acquire legal personality and be entitled to all the rights and privileges granted by law to legitimate labor organizations within 30 days of filing with the office of the Sec. of Labor notice of its due organization and existence, and (certain specified) documents. . . It is alleged that said requirement of registration — (1) violates freedom of assembly and association, and is inconsistent with the Universal Declaration of Human Rights (2) should be deemed repealed by the International Labor Organization Convention ( I L O Convention) N o . 87. HELD: (Thru Mr. Chief Justice Roberto Concepcion): The theory to the effect that Sec. 23 of Rep. Act No. 875 unduly curtails the freedom of assembly guaranteed in the Bill of Rights is devoid of factual basis. The registration prescribed therein is not a limitation to the right of assembly or association, which may be exercised with or without registration. (Exparte R.J. Thomas, 174 S.W. 2d 958-960) The latter is merely a conditio sine qua non for the acquisition of legal personality by labor organizations, etc., and the possession of the "rights and privileges granted by law to legitimate labor organizations." The Constitution does not guarantee these rights and privileges, much less said personality, which are mere statutory creations, for the possession and exercise of which registration is required to protect both labor and the public against abuses, fraud, and impostors who pose as organizers. Although not truly accredited agents of the union they purport to represent, such requirement is a valid exercise of police power. For the same reasons, said Sec. 23 does not impinge upon the rights of organization guaranteed in the Declaration of Human Rights, or run counter to Art. 8 of the ILOConvention No. 87, which provides that "workers and empkiyees shall have the right to establish and join organizations of their own choosing, without previous authorization," that

PRBUHTNARY CONBIDEBATIONS

27

"workers and employees' organizations shall not be liable to be dissolved or suspended by administrative authority," that "the acquisition of legal personality by workers and employees' organizations shall not be made subject to conditions of such a character as to restrict the application of the provisions" abovementioned, and that "the guarantee provided for in" said Convention shall not be impaired by the taw of the land. The cancellation of a labor union's registration certificate (for failure to comply with important requirements) would not entail a dissolution of said association or its suspension. The EXISTENCE of the organization would not be affected by said cancellations, although its juridical personality and its statutory rights and privileges — as distinguished from those conferred by the Constitution — would be suspended thereby. (See also B.S.P. v. Araos, L-10091, Jan. 29, 1958).

DISTINCTIONS FROM RELATED SUBJECTS (1)

Public and Private International Law

The term "International L a w " may be divided into two principles: Public International Law, which is the subject of this treatise, and Private International Law (otherwise known as the Conflict of Laws.) (a) According to the Monist School of Thought, there is no substantial difference between the two, for while Private International Law deals primarily with private individuals, and Public International Law concerns itself with the affairs of States, still States are essentially made up of individuals. Hence, it is claimed that both subjects deal with principles that may equally apply to States and to private individuals. (b) According to the Dualist School of Thought, at least four (4) distinctions present themselves: (1) Persons Involved — Private International Law deals with private individuals; Public International Law reckons with States and such other entities as are possessed of an international personality, e.g., the United Nations Organization. (2) Transactions Affected — Transactions between private citizens involving a foreign element constitute the subject matter of Conflict of Laws; the Law

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of Nations seeks to resolve the relationship among sovereign States. (3) The Nature of the Law — Private International Law, despite its name, is really municipal or national in character inasmuch as each State has its own conflict rules; Upon the other hand, there are generally accepted principles of Public International Law, giving to the subject an "international" nature. (4) Sanctions and Remedies — In Private International Law, recourse is had before municipal tribunals; in the case of Public International Law, sanctions may take the form of peaceful remedies (e.g., diplomatic negotiation, tender and exercise of good offices, mediation, conciliation, arbitration, settlement by the International Court of Justice) or forcible measures (e.g., reprisals and war). International Law Practice R e n a t o L. Cayetano v. Christian Monsod GJL N o . 100113, September 3, 1991 Justice Edgardo L. Paras: Today, the study of law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law teaching method of including the subjects of international corporations and securities but an incursion as well into the intertwining modern international management issues. Such corporate legal management issues deal primarily with three types (3) of learning: (1) acquisition of insights into current advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skills applicable to a corporate counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function itself. These three subjects areas overlap and for this reason they may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "intersecting managerial jurisprudence," it forma a unifying theme for the corporate counsel's total learning.

P R E L I M I N A R Y CONSIDERATIONS

29

Some current advances in behavior and policy sciences are the following: One. Framing the Changing World for Corporate Managers — Its Relation to the Counsel's Role. This aspect reviews globalization, the resulting strategic repositioning that firms are required to make, and the need to think about a corporation's strategy at multiple levels. The salience of the nation-State is being reduced SB firms deal both with global multinational entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only with public entities but with each other — often with those who are competitors in other arenas. Two. Human Resource Strategies and Corporate Decision-Making. The nature of employee participation in decision-making within the corporation is rapidly changing. Employees are gaining new roles as stakeholders — in some cases participating in the organization and operations of governance thru participation on boards and other decision-making roles. Often, these new patterns develop alongside existing legal institutions, and laws, are perceived as barriers. These trends are complicated as corporations organize for global operations. Three. Governmental Policies Toward the Promotion and Management of Technology. New collaborative arrangements for promoting specific technologies or competitiveness generally require approaches from industry that differ from older, more adversarial relationships and traditional forms seeking to influence government policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business, Japan's MITI is world famous. Four. Boundary Spanning. The office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organization. Effectiveness of both long-term and temporary groups within organizations has been found to be related to ^identifiable factors in the group-context interaction such as the groups actively revising their knowledge of the environment, coordinating work with outsiders, promoting team achievements within the organization. In general, such external activities are better predictors of team performance than internal group processes.

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Five. Managerial Aspects of Crisis Management, Bhopal, the Challenger, the Tylenol bottling incident, a n d similar unexpected events test the managerial mettle of corporations. Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of financial, liability, and insurance considerations. Regarding the Bkills to apply by the corporate counsel, three factors are apropos: First. System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing immediate problems. An undestanding o f the role of feedback loops, inventory levels, and rate of flow, enable users to simulate all sorts of systematic problems — physical, economic, managerial, social, and psychological. New programming techniques now make the sytems dynamics principles more accessible to managers — including corporate counsels. Second. Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk involved managing a portfolio of cases. Third. Modeling for Negotiation Management. Computerbased models can be used directly by parties and mediators in all kinds of negotiations. An integrated set of such tools provide coherent and effective negotiation support, including hands-on instruction in these techniques. A simulation c a s e of an international joint venture may be used to illustrate the point. Finally, the organization and management of the legal function, concern three pointed areas of consideration, thus: Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made.

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Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work. Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel bear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex decisions. RP Conflict of Laws If in a moment of deep infatuation, a Filipino lawyer (member of the Integrated Bar of the Philippines) gets married in Brunei to a lovely, midi-skirted female from strifetorn Bosnia-Hercegovina, the following questions may rightfully be asked: Which country's law will govern the validity of the marriage? Which particular legal system will govern their personal rights and obligations as husband and wife, assuming the marriage to be valid? How about their matrimonial property relations? The responses to these legal interrogations will, insofar as we are concerned, depend, to a very great extent on the application of what we shall refer to as Philippine Conflict of Laws (otherwise called Philippine Private International Law). As fittingly pointed out by Professor Robert A. Leflar, former Justice of the Supreme Court of Arkansas, "any case which involves facts occurring in more than one State or nation, so that in deciding the case, it is necessary to make a choice between the lawa of the different States or countries, is a conflict of laws case."

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For that matter, "conflict of laws" is that part of the municipal law of a State which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not they should apply a foreign law or foreign laws. With the amazingly rapid growth of modern international commerce, con Ret of laws has assumed increasing importance. For instance, two individuals, nationals and domicilliaries of two different States may in the space of a few hours, engage in a mercantile transaction over chattels still to be manufactured in a third State, and to be delivered at a given port of a fourth State. Should legal complications ensue, which of the countries involved will have jurisdiction over the case, and which State's laws will be applicable? Stated otherwise, we may say that the subject is important in order (a) to adjust conflicting rights in international, mercantile and corporate transactions; and (b) to solve personal, family, property, and successional, contractual problems, possessed of facts or elements operating in two or more States. For instance, it would seem that the personal law of the corporation (law of the place of incorporation) g o v e m B , inter alia, the following matters: (1) the requisites for the formation of the corporation (but not the pre-corporation contracts such as those entered into by promoters preliminary to the incorporation of the company. Such preliminary contracts are governed by the proper law of the contract; (2) the kinds of stocks allowed; (3) the transfer of stocks in a way that would be binding on the corporation; (4) the issuance, amount, and legality of dividends; and (5) the powers and duties of members, stockholders, and officers (in general). Be this as it may, there are three (3) specific aims or functions of conflict of laws, namely: (1) the determination of which country has jurisdiction; (b) the applicability to a particular case of either the local or the foreign law; and (c) the determination of the force, validity, and effectiveness of a foreign judgment. Let us suppose that a Filipino moviestar goes to Reno, Nevada, and obtains a decree of absolute divorce from his Filipino wife. Let us further suppose that three years later the Filipino wife sues in Manila for support from said hus-

P R E L I M I N A R Y CONSIDERATIONS

band. Three questions will confront the Filipino judge. Firstly, does he have jurisdiction over the case? Secondly, what law will he apply in determining whether or not a proper cause of action exist — shall it be Nevada law or Philippine law? Thirdly, should he recognize as valid and binding in the Philippines the Reno divorce decree? Now BB to a foreign divorce obtained by a foreigner married to a Filipino, bear in mind that the purpose of the second paragraph of Article 26 of the Family Code of the Philipines is to avoid unfairness to a Filipino spouse. What does said proviso say? "Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law."(2nd par., Art. 26 of The Family Code.) Note that the rule does not apply if both parties are Filipinos. The case of Pilapil v. Hon, Ibay-Somera, G.R. No. 80116, June 30, 1989, decided by the Philippine Supreme Court, concerns an ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal infidelity suit of the husband against the wife. In the concurring opinion of Justice Edgardo L. Paras, he stated that regardless of whether the German absolute divorce should be considered as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany can no longer be considered as the offended party in case his former wife actually had carnal knowledge with another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A contrary ruling, Justice Paras intoned, would be lesB than fair for a man, who, although free to have sex will be allowed to deprive the woman of the same privilege. In the case of Recto V. Harden, 100 Phil. 427 [1966], the Philippine Supreme Court considered the absolute divorce between the American husband and his American wife aB valid and binding in the Philippines on the theory that their status and capacity are governed by their national law, i.e., American law. According to Justice Paras, there is no deci-

34

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sion yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two different nationalities would be involved. In the book of former Philippine Senate President Jovito Salonga entitled "Private International Law" and precisely because of the national law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no longer her husband. However, it is Justice Paras' opinion that very likely the opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. Continued Justice Paras: "Consequently since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing before the new Family Code, the divorce should be considered void both with respect to the American husband and the Filipino wife." The case of Van Corn u. Judge Romillo, Jr., G.R. No. 68470, Oct. 8, 1985, cannot apply despite the fact that the husband was an American with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned was never put in issue. (2) Public International Law and International Comity While the Law of Nations presupposes precepts of law, in the sense already defined, International comity (in connection with Public International Law) relates to rules of international courtesy, etiquette, or good-will which are in fact, or which ought to be, observed by StateB in their mutual relatione. International 60

*°Hershey, Essentials of International Law, p. 3.

comity may manifest itself in various forms such ai the practice of diplomatic protocol and extradition even in the absence of a definitive treaty on the matter. (3) Public International Law and International Morality of International Ethics. International morality or ethics is not premised on positive law; rather it seeks to bind by appealing to the conscience, justice, and humanity* (4) Public International Law and International Diplomacy This in the wider eense of the term) is simply the conduct of international relations, based on intrigue, tact, and the upholding of national prestige.* As a wit has cunningly put it (in a light vein, naturally), "a diplomat is an honeBt man sent abroad to lie for his country." 1

(5) Public International Law and International Administrative Law International administrative law seeks to regulate the internal functionings of international bodies. These bodies in turn take care of material and cultural affairs that have merited international concern, e.g., international communication and transportation, sanitation, and copyrights.** INTERNATIONAL CORPORATE COUNSEL A corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. After all, international law is practised in a relatively small number of companies and law firms. Because working in a foreign country is perceived by many as glamorous, this is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. (Edgardo C. Paras, Jr., Economics for Lawyers [Manila; Rex Bookstore, 1993], p. 21, citing Cayttano v. Monsod, G.R. No. 100113, Sept. 3, 1991).

"Ibid., » . 2 . Ibia\, pp. 3-1. m

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ETHICAL HOLE OF AN INTERNATIONAL LAWYER Ethics is the systematic study of the ultimate problems of humlifTconduct. The distinguishing factors between morals and ethics are readily apparent: Law is formulated and imposed by the State; morals by conscience, beliefs and the attitudes of society. Law has fixed and powerful sanctions; morality is sanctioned, if at all, by public opinion, disapproval, possibly ridicule and exclusion from a particular society. The distinction between law and morals in respect of objectmatter and application lies in such facts as that law as regard to acts, morals to thought and feeling; legal rules are of general and absolute application, whereas moral principles must be applied with reference to individuals and circumstances. Thus, the main principles of ethical conduct, inter alia, expected of an international lawyer are that, in relation to his client, he will maintain confidentiality about everything revealed to him during the professional relationship and will always use his ability to secure the client's interests, but will not knowingly be a party to any fraud, dishonesty or underhanded dealings. In relation to other members of the profession, an international lawyer must deal honestly with them and implement undertakings to them. In relation to the courts, the international lawyer should not participate in any fraud in the courts as by putting forward false evidence, should not put forward any misleading arguments or misrepresent or conceal any authorities relevant to his case, whether in favor or against hiB client. SPECIALIZED AREAS OF INTERNATIONAL LAW Today, more than other time in the history of the world, international law, in all its multicolored aspects, tremendously influences every single State and man existing. The importance of international law has dramatically increased in a world characterized by growing interrelationships among nations. International peace and development, economic and financial issues, protection of human rights and cultural and scientific exchanges are essential subjects that require institutions,

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norms and procedure to ensure order with justice. Indeed, the significant areas of specialization of international law have not diminished in their relative strength, and, therefore, cannot be scoffed at. These four specialized areas are: International Trade — This area of concentration deals with international commercial transactions and international finance in which private banks participate; international trade law conventions, such as the sale and carriage of goods, and commercial arbitration conventions; export and import control; the ruleB of the General Agreement on Tariffs and Trade, customs tariffs, the Trade Act of 1974, and the tax and anti-trust laws as they bear on the conduct of foreign trade; techniques of financing trade and large scale international loans; venture capital transactions; the Trading with the Enemy Act; techniques for tracing and protecting expropriated property in international commerce; and alternative means of transnational dispute resolution. International Organization — This includes the study of internal processes, lawmaking functions and general activities of selected regional and international organizations such as the United Nations, the Organization of American States, the Organization of African Unity, the North Atlantic Treaty Organization, the Association of South East Asian Nations, the Eurfipean Economic Community, and the Council of Europe. It also includes an analysis of the interrelationships of such organizations, the relationship between the organizations and their member-nations, and the role of individuals. Additional areas of analysis include the fundamental issues of contemporary international law and the handling of such problems thru international organizations in the law of the sea, human rights, cooperation for development, and peace and security. International Finance and Banking — This includes the study of international financial institutions such as the World Bank, the International Monetary Fund, the Inter-American Development Bank, the Asian Development Bank, inter alia, and their impact on international and private commercial and banking practices; techniques for co-financing development projects between these international institutions and private banks; the applicable procurement rules and practices governing how businessmen can bid for contracts under projects financed by these public institutions; restraints on foreign banks imposed by domestic governments;

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restrictions on the movement of money and assets across national borders; the Bretton Woods Agreement; problems created by exchange control measures in the transfer of funds and securities, and the extraterritorial effect of extraordinary measures; and the regulation of foreign banks overseas. International Protection of Human Rights — This area of concentration includes the study of both the international law of human rights and the international humanitarian law. International developments regarding human rights, include the ongoing process of defining international rights — especially after the Second World War — and the development of different forms of international supervision. This area embraces developments both at the universal (United Nations, International Labor Organization, United Nations Educational Scientific and Cultural Organization) and the regional levels (Organization of American States, Council of Europe). Humanitarian Law includes the study of international principles and rules regulating the conduct of international and non-international armed conflicts, as well as traces the historical development of restraints on armed conflict. Students in thi6 area focus their study on the distinction between rules governing recourse to armed coercion and those governing the conduct of armed hostilities.

PROOF OF INTERNATIONAL LAW OR OF INTERNATIONAL FACTS Even in the purely municipal State, some disputes or cases, for their adjudication, need proof of international law or of international facts (e.g., proof that a particular defendant is a diplomatic official, proof that a certain State has been recognized by the forum, proof that a State of war exists, proof that a certain country is merely the protectorate of another). Some of these international facts may be matters of judicial notice; others require proof. In many countries, the Executive Department usually issues an "executive certificate" attesting to certain relevant facts (e.g., that a particular vessel is owned by a foreign State), and sometimes including even "conclusions of law" (e.g., that such ship is immune from the judicial process). In some countries, as in the United States, use is made of the so-called "suggestion." Inevitably conflicts may arise between the executive and the judicial departments, causing embarrassment to all concerned. (See D.P. O'Connell, International Law, Vol. I, pp. 123-133).

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CONSIDERATIONS

STRUCTURE OF PUBLIC INTERNATIONAL LAW The relations between sovereign politics are three-pronged, according to a respected authority in public international law, Associate Justice Florentino P. Feliciano of the Philippine Supreme Court, to wit: (1) the law of treaties and other international agreements; (2) the law on armed conflict; and (3) the rubrics of international delinquencies or torts and the international responsibility of States. "The law of treaties and other international agreements addresses issues raised by relationships exhibiting in dominant degree the element of consent freely given." (F.P. Feliciano, "Process and Culture in Development Negotiations: The Management of Consent," Foreign Relations Journal [A publication of the Philippine Council for Foreign Relations], October, 1990, Vol. V, No. 3, p. 84). "The law on armed conflict, earlier called the law of war, seeks to regulate and mitigate relationships characterized by the mutual, systematic and relatively extensive and prolonged applications of military force, ordinarily regarded as the most intense form of coercion." (Ibid.) ' | T ] h e rubrics of international delinquencies or torts and the international responsibility of States deal with [disputes where the parties invoke much less intense forms of coercion as instruments of policy." (Ibid.) WHY LDC'S ARE AT A DISADVANTAGE IN NEGOTIATING MATTERS Associate Justice Florentino P. Feliciano of the Philippine Supreme Court, in his Process and Culture in Development Negotiations: The Management of Consent (1990), explained thus: "Acquisition of basic skills in negotiations understood as the generating, formulating and managing of consent is of particular importance for the poor and developing countries, which, commonly, are bereft of the means of exercising economic and financial and ultimately of military pressures. "At the same time, developing countries, many of which are new or relatively new StateB, have had no long history of negotiations with other countries or with foreign corporations. They generally lack cadres of experienced negotiators in their

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foreign offices, in their ministries of finance and of' trade and industry, in their boards of investment , in their agencies charged with the coordination and implementation of development assistance, and in their private sectors. "Impressionistic preparation for politically or financially important negotiations could lead to failure to clarify and take account of all the substantive interests at stake and to failure to analyze, specify and 'operationalize' such interests into concrete, sustainable negotiating positions or proposals. [Negotiators] may sit down with their counterparts reiving, more or less consciously, on confused, romantic notions of 'special' or 'historic relations' or shared 'fundamental interests,' and then fee] grievously disappointed when such counterparts refuse to sacrifice their own interests and to defer to the former's claims. The resulting agreement would, once more, more probably than not he a fragile one and likely to produce more issues in the implementation phase than were resolved by the closing of the agreement itself. "Frequently, Third World negotiators lack confidence in their ability to deal effectively and successfully with developed-country negotiators across the table. If the projection of policy and the resolution of disputes across as well as within State boundaries by consensual rather than by coercive means is important, if the erection of new wealth and the distribution or redistribution of economic resources thru agreement-making procedures rather than thru official impositions is important, then raising the level of confidence of developing-country negotiators in their own capabilities is important. That increase of confidence should come when the negotiators learn how to prepare themselves for serious and hard bargaining, when they build up and accumulate experience and learn from it. "Confidence will take root and grow, above all, when they come to understand that negotiating skills — intellectual analysis, disciplined emotions and behavior, ability to communicate lucidly and persuasively, willingness to listen to and enter the skull of one's counterpart, high commitment to plain hard work — can be acquired and developed and are not the automatic function of level of technology or racial endownment or cultural environment."

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THE NEGOTIATION PROCESS In the characteristic language of Dr. Florentino P. Feliciano, a director of the International Development Law Institute: '{Negotiation is most appropriately conceived of as a process taking place over time and in space within the context of a particular economic, political, and cultural environment. T h e negotiation process, so viewed, consists of a whole series of related acts and operations running from preparation for negotiations, thru the actual conduct of negotiations and the execution or closing of the agreement negotiated, to the implementation of that agreement. "From this point of view, negotiation may be seen to refer, not simply to the bargaining phase where concessions and counter-concessions are accepted or actively traded or rejected by the parties, but to a whole agreement-making process, a process which, most broadly considered, includes not only the implementation but also the post-implementation phases. T h e post-implementation phases include the evaluation of the agreement as put into operation. Where evaluation shows that actual performance falls significantly short of the goals originally projected, revision and renegotiation of the agreement may be expected to ensure, or alternatively, the termination of the original agreement." (NOTA BENE: In the view of Dr. Feliciano, the term "parties" would embrace all entities and authorities whose cooperation and approval is necessary for closing or concluding and implementing the agreement reached, and those whose interest will in fact be afTected and must be taken into account in hammering out the actual shape of the agreement, in paper and in practice." (F.P. Feliciano, "Process and Culture in Development Negotiations: The Management of Consent [1990]). (N.B.: Dr. Feliciano also of the Hague Academy of International Law avers that "negotiation is described in textbooks as a mode of dispute resolution not involving the intervention of a third party whether that third party be a mediator, a conciliator, an arbitrator or a regular judge." (Ibid. ) THE ROLE PUBLIC INTERNATIONAL LAW HAS PLAYED Three (3) vital questions may be asked concerning the role of Public International Law in the world:

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(1)

Is it essential?

(2)

Has it been successful?

(3) If success has not been overwhelmingly evident, what is the remedy for international problems? The First Question Is Public International Law essential? The answer is indubitably in the affirmative. Without a set of rules guiding their behavior, States would inevitably clash with one another in the pursuit of their own "sovereign rights." The lack of a coercive international norm will mean the beginning of chaos. As well stated by Brierly: "The existence of some kind of international law is simply one of the inevitable consequences of the existence in the world of a plurality of States necessarily brought into relations with one another. . . . There need be no mystery about the primary function of international law. Stated quite simply, what it tries to do is to define or delimit the respective spheres within which each of the States into which the world is divided for political purposes is entitled to exercise its authority. Each of these States is independent of the others, and each has its own governmental and legal system; if there is not to be a clash between their respective competences, there must clearly be some principles to determine where the competence of one State ends and that of another begins. These principles are given by international law." 11

The Second Question Has Public International Law been successful? Our answer is a distinction: in some affairs, the Law ofNations has been eminently successful; in others, miserable failure has been \he r e f i l l (e.g., the drawn out war between Iraq and Iran; between Israel and the Palestine Liberation Forces under Arafat: the blood murders and suicidal bomb attacks in Lebanon, India, Iraq. R i ; ^ i. Georgia, Bosnia, Haiti, Angola, Somalia, Libya, and a hosl ofo' ;i •• African States). Though cynics have been heard to remark thr; "International Law is nothing but force and the rule of mi;:h. over weakness," it cannot be denied that it has accomplished many things, among the most important of which have been ihe following:

•J.L. Brierly, The Outlook for International Law, pp. 1-11.

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(a) The community of "sovereign" States still exists; their continued survival would have been impossible had not the rules of Public International Law put them in their proper places; (b) Communism, not only has been held in check, it has, in fact, debilitated, as what transpired in Eastern Europe; while crises have continually arisen, it is clear that many of them have already subsided. Each international crisis could have erupted into worldwide wars; so far history has witnessed only two (some of these conflicts include the war between North and South V i e t n a m , the continuing conflict in Kampuchea between the Vietnamese invaders and Cambodia; the internecine strife in Bosnia-Hercegovina. (c) International trade, commerce, aviation, communication, and transportation continue to flourish; international cooperation has tried to minimize the danger from disease; international resources have been pooled together and have resulted in tremendous technological advances. Obviously, many problems remain unsolved. For instance, international faith and trust exist merely on paper and in vocal utterances; the United Nations Organization has not been able to prevent many regional wars and sectional clashes of violence; racial discrimination resulting in "apartheid" — (the setting apart of the "whites" from the "non-whites") subsists (in some political communities, however, has waned;) economic underdevelopment continues to be a major irritant in many territories; it is doubtful whether effective sanctions may be enforced against a delinquent major State without risking another (and perhaps, the final) world war. As has been well said, after the next world conflagration, the question "will not be what is right, but what is left." The Third Question If success has not been overwhelmingly evident, what is the remedy for international problems? We venture again to distinguish our answer: (a) for the present — a peaceful co-existence between the democratic and the communistic ways of life would seem to be the solution (the joint American and Russian flights in outer space, the projected summit conference between President Bill Clinton of the U.S. and President Boris Yeltsin of Russia are classic examples of West-East cooperation);

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(b) in the far, far, far future — a World State, with a World Government (complete perhaps, with a President of the World, a Congress of the World, and a Supreme Court of the World), as distinguished from the present United Nations Organization (where the member-States consider themselves sovereign, and where there is offhandedly basal international police power), would clearly be the inevitable imperative. For the Present — We are obviously in the midst of an enfeebling Cold War albeit the posturings of many that we are now living in the postCold War era (of ideological principles, as distinguished from the "hot war" of flaming missiles and bloody violence): the situation, while admittedly placing the world now and then in a state of tension, is nonetheless, preferable to one of actual worldwide conflict. So long as the diplomats and sovereigns of the world continue Lo talk (in "summit conferences" among heads of States, in international congresses, in the halls of the International Court of Justice, in the columns of newspapers, journals and magazines), there is no danger of actual war. Faithful adherence to the principles of International Law and of the United Nations Charter will be adequate in the meantime: in this way, the running ideological civil war between the equalitarian theory of Russia and the libertarian theory of America and England will continue to remain a battle of words. The repeal of the V E T O P O W E R in the Security Council can serve no useful end: Russia has repeatedly expressed her desire to get out of the United Nations Organization the moment the "veto" is abolished; when this occurs, conversations on peace will have lost an iniquitous forum. It is, therefore, believed that "peaceful co-existence" would seem to be the solution. How then can this status quo, this "peaceful co-existence," be maintained? In his book "Containment or Liberation," James Burnham states thai "For the United States, foreign policy means policy toward world communism and the Soviet Union. The range of choice is restricted to three possibilities: appeasement, containment, liberation." Appeasement in effect means that the United States should be ready to give in to whatever demands Russia might make; containment means that America should see to it that Communism is "confined" (or "contained") within the present borders of Russia and her satellites (i.e., Russia, must not be allowed to expand her territories; liberation means that the United States should resolve to liberate or free the nations that have fallen within the Soviet empire — nations which "chafe under the oppression of their masters."

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Appeasement cannot achieve a peaceful co-existence: it cannot only mean the eventual superiority of Communism; for if our efforts at appeasement be incessant, one day we Bhall wake up to find that we no longer can appease, for we shall have ceased to exist. Containment was initiated by George Keenan in his article T h e SourceB of Soviet Conduct"* and expanded in a second article "American and the Russian Future." Under the policy of containment, Russia would not be allowed to expand beyond its (and those of its present satellites') territorial boundaries. However, the policy contains no offensive strategy; in fact, it deliberately excludes all offensive plans. Instead, it insists on international economic strength so that the "masters of the Kremlin may be persuaded to desert the errors of their ways." 5

86

Liberation, upon the other hand, would necessarily involve the use of force. According to Burnham, the policy of liberation should be announced to the people behind the Iron Curtain and to the rest of the world: in this way, the risks of a general war would be minimized. He says: "Are we ready to declare that Western civilization is superior — objectively superior — to Soviet totalitarianism? Do we as Americans proclaim that political freedom and representative government are better than political tyranny and the sovereignty of the secret police, better for all men, Poles and Chinese and Russians as well as French and English and Americans? Our ancestors did not doubt the universality of their political ideal, nor did they hesitate to speak and act according to its light. The Declaration of Independence did not confine its truths to the three-mile limit." 67

In the far, far, far future In the far, far, far future problems of international law will cease to exist when we shall have a World State with a World Government (complete perhaps, with a President of the World, a Congress of the World, and a Supreme Court of the World). This is not an impossible dream. Today we have independent, equal, and "sovereign" States, but this has not always been so. A long

"*Jiily, 1947, issue of the magazine Foreign Affairs. ** April, 1951, ieaue of the same magazine. "'Burnham, Containment or Liberation, pp. 248-249.

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time ago, there merely existed independent families, each of which did not concern itself with the affairs of the others; the families grew into independent tribes, each with its own ceremonial rituals and customs; the tribeB grew into small political communities — towns, municipalities, cities; the cities w e r e jealous of each other's independence and so there arose the city-States; today, we have the modern national States — sometime in the future, entire races may form federations; governments may be by Continents in the far, far, far future the World State may emerge. " 6

No one seriously doubts the possibility of a World State and a World Government; the debatable proposition is on how they may be brought about. On the desire for them, Professor Frederick H. Hartmann of the University of Florida has this to say: "In the name of peace, men have fought many wars designed to preserve or enhance national security. Until World War I, the balance-of-power principle was the main reliance of the great powers to preserve their security. Its failure to avert war in 1914 led the Western World after the war to attempt (although without the participation of the United States) a new method — collective security. For this purpose, they established the League of Nations. Despite the failure of the League to avert war in 1939, the UN w a s established in 1945 as an improved version of the same principles; this time with the United States playing a leading role. Since the UN resembled the League, which had been a failure, and since the balance of power was equally distrusted as a preserver of peace, many, during and after World War I I , began to advocate a new principle altogether — world government. In this w a y , many believed that the prophecy of Isaiah eight centuries before Christ might be fulfilled a n d war would disappear from the [face of the] earth." 69

Various theories have been elaborated on how a World State a n d a World Government may be formed: (1) the respective national StateB must renounce their respective "sovereignties," and m e e t in a constitutional convention to draft t h e "Constitution of t h e World"; (2) since t h e concept of a World State is necessarily predicated on t h e existence of a "world community" (as distinM

S e e Emery Reves. The Anatomy of Peace. (1945). ^Hartmann, Readings in International Relations, p. 213.

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guished from a "national community" or a "local community"), the basic "social tissues'* for such world community must first be strengthened: (a) the economic tissue — there ought to be greater economic interdependence accompanied by a lessening disparity in the economic strength of the various nations; (b) the psychological tissue — the fear of a common foe can act as the "cement of cohesion;" (c) the moral tissue — "enlightened men in all nations have some sense of obligation to their fellowmen, beyond the limits of their nationality." 70

(3) to attain world unity, peaceful means must first be availed of; in case of failure, war and conquest can unify the world (example: if America with her aliens can conquer Russia and her allies, world government can begin to exist). As Emery Reves forcefully states: "To put it bluntly, the meaning of the crisis of the twentieth century is that this planet must to some degree be brought under unified control. Our task, our duty, is to attempt to institute this unified control in a democratic way by first proclaiming its principles, and to achieve it by persuasion, and with the least possible bloodshed. If we fail to accomplish this, we can be certain that the iron law of history will compel us to wage more and more wars, with more and more powerful weapons, against more and more powerful groups, until unified control is finally attained thru conquest." 71

On the proposition that a constitutional convention be called for the purpose of drafting the "Constitution of the World," Reves says: "Nothing is more futile than to work out detailed plans and prepare drafts for a constitutional document of a world government. It would be a simple matter for a competent individual or a group of people to sit down and work out scores of plans in all detail and in all variety. Within a few days one could produce twenty constitutional drafts, each ;o

S e e Reinhold Niebuhr, "The 111 uaion of World Government." Foreign Affairs, Vol.. 27, No. 3. April. 1949, pp. 379-388. 'Emery Reves, open., pp. 253-270. 7

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completely different from the others, each equally plausible. Such a procedure would only hinder progress. Nothing is more open to criticism than a constitution, unless it be the draft of a constitution. If at the very inception of democracy, before the democratic nation-States had been created in the eighteenth century, a specific draft of a democratic constitution had been identified with democracy itself, and put forward for general approval and acceptance, we should never have had a democratic nation-State anywhere in the world. History does not work that way. The founders of democracy were much wiser and more political. They first formulated a small number of fundamental principles regarded as self-evident and basic for a democratic society. These principles succeeded in arousing the vision and flaming the enthusiasm of the people who on the basis of these fundamental principles, empowered their representatives to translate them into reality and create the machinery necessary for a permanent legal order, representing the triumph of these principles. The constitution, the fundamental law of the new democratic order [is] debated after, not before the acceptance of the elementary principles and the mandate given by the people to their representatives for the realization of those principles. So today we see democracy expressed in systems of great variety in detail but nonetheless, deriving from identical principles. . . Regarding the creation of universal democratic order, we have not yet reached the stage of conception. We have not yet formulated the principles. We have not yet set the standards. To put the problem before national governments would be a hopeless enterprise, doomed to failure before even starting. The representatives of the sovereign nation-States are incapable or acting and thinking otherwise than according to their nation-centric conceptions. As such a universal problem cannot be solved along national lines, certainly and naturally they would destroy any plan, any draft of a universal legal order." 72

A POST-COLD WAR ERA As earlier adverted to, most political analysts are of the opinion that we are now living in a period popularly known as the postTi

lbid

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Cold War era. Why is this so? Indeed, how is "international law" perceived today? Tradition defines "international law" as the body of rules governing the relations between and among States. Owing, however, to the advent of new doctrinal principles and legal concepts, international law has reached a point where it now interlinks with world politics. Director R.G. Feltham of Oxford University in his "Diplomatic Handbook" (1988 ed.) put it in succinct terms: "[SJince the rapid evolution of the concepts of social and interstate responsibilities resulting from post-war factors and events (e.g., the creation of new States and increased involvement of the individual) and reflected in the development of the U N , [international law has now reached a new zenith."] According to R.G. Feltham, "although international law is the subject of much debate and opposing viewpoints" [e.g., "Is international law a true law?"] "there are certain areas of almost complete agreement (e.g., piracy on the high seas and the immunities of diplomatic agents), is just at the other end of the spectrum [and where] there are areas of considerable disagreement." It cannot be claimed, avers Feltham, that international law is a subject merely for academic lawyers. International law, he argues, is a "contradiction in terms," i.e., something of a paradox, attracting both disciples and skeptics. Internationa] law is a paradox for those who, with missionary zeal, see it as the path to world peace and righteousness visa-vis those who maintain that without international sanctions, there can be no international law. Thus, in Feltham's analysis of the situation, the aforementioned views are to some extent valid. He intones that international law's relevance in diplomatic relations lies in the fact that "considerations of said law do influence governments and provide standards of international behavior which they acknowledge as being the ideal, even though they may not always manage to live up to them." In Feltham's thinking, international law, like all good causes, "is liable to [be I the subject of evil designs." He cites the fact that politicians the world over are not slow to invoke and if necessary distort the principles of international law in order to suit their (politicians'* purposes, or to disclaim them if they should prove to be embarrassing. The bottomline is: International law is a subject that diplomats must be acquainted with, but must handle with care.

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Inasmuch as the general picture currently prevailing in the international law scenario encompasses a wide array of diplomatic, consular, legal, and economic terms, e.g., rebus sic stantibus, pacta sunt servanda, pari passu, volte face, tranche, conditionalities, etc.), a wider definition of the term "international law," has become a "felt need." J.G. Starke's definition of the term as contained in his Introduction to International Law is apropos: "International law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which include also: (a) the rules of law relating to the functioning of international institutions or organization, their relations with each other, and their relations with States and individuals; and (b) certain rules of law relating to individuals and non-State entities so far as the rights or duties of such individuals and non-States entities are the concern of the international community." Truly, this is a wonderful world of changes in ideas and ideologies. In boycotts and other economic sanctions, and the rise of "people power," successful or otherwise, in recent years and to the surprise of many in the Western world, the Berlin Wall, symbol of the continuing war of democracy against communism, was torn apart, stone by stone, pillar upon pillar, the tolerated "rush" of East Germans to West Germany, unrestrained by any superior force, was soon followed by democratic uprisings in countries inside the Iron Curtain, namely: Czechoslovakia, Rumania, Hungary, Bulgaria, Poland, Yugoslavia, and the Union of Soviet Socialist Republics itself. "People power" found worldwide recognition in the Philippines during the now famous EDSA revolution of 1986. Various other countries soon followed but many mass demonstrations resulted and ended in dismal failures, the last grand spectacle being that on Tiananmen Square in Beijing. However, the failure in Beijing alerted millions of Red Chinese to the inherent defects of their way of life. Today, therefore, the grumble of the masses in China and in the former Soviet Union (now a loosely-held Commonwealth of Independent States) flow with ever alarming intensity, alarming, i.e., to the Marxist-Lennist and Maoist modes of existence.

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On the grim side, silently, many have died — in dusty Somalia. By early 1993, at least 400,000 have perished because of starvation in this East African land. Invisibly, in blood-soaked Bosnia's "cleansed" towns. The Republic of Bosnia-Hercegovina, a patchwork of people, broke away from Yugoslavia, followed by ferocious ethnic warfare. The armed Serbian minority drove Bosnia's Muslim majority from countless towns, killing thousands. They called it "Ethnic cleansing." Loyalist Muslims and Croats were brutal as well. Appealing for U.S. help, the Muslim president of Bosnia-Hercegovina, in battered Saravejo, pleaded. He still waits. In the blood feuds of a crumbled Soviet Union (take the case of the beleaguered Boris Yeltsin versus the hardliners), many have met death uselessly owing to ethnic crusades unreeling in kaleidoscopic confusion. Armenians battle Azerbaijans, Georgians fight South Ossetians and Abkhazians, North Ossetians Tight Ingush, Moldovans stare down Russians, and Tajik clan takes on Tajik clan, etc. In Germany, it is neo-Nazis who attack foreign refugees. New hope remains. The Arabs and Israelis talked on and on about peace, and whites and blacks aim toward multiracial democracy. Notwithstanding, the global populace was entertained by way of diversions — both titillating and terrifying. The British royal family experienced what Queen Elizabeth II dubbed an annus horribilis — a harrowing period of marital woe that kept tabloid readers interested albeit dismayed. A Russian, Chikatilo, labelled the "worst murderer" of contemporary times, was sentenced to death for the cannibalistic sex killings of 52 women and children. Generally, the subject of international law confines itself to: general principles, States as subjects of international law, jurisdiction and jurisdictional immunities, treatment of aliens, territory (land, air, outer space, and telecommunications), law of the sea, treaties, settlement of disputes, laws of war and neutrality, and the UN organization. Nonetheless, in the search for a "new world order," expanded areas necessitate inclusion in the otherwise traditional domain(s) of international law. These are individuals and human rights, environmental law, a study of military alliances, international economic, trade, and financial [monetary] laws, including international taxation. Since the guiding philosophy behind international trade is free flow of goods and services, it goes without saying that the principal objective of international taxation is to see thru this ideal by way of feasible taxation arrangements

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which recognize each country's sovereignty in the matter of taxation, the need for revenue, and the attainment of certain policy objectives. Public international law, as it should be viewed, is geared toward the 21st century complex of economic and financial modalities against the backdrop of aggressive State sovereignty, notwithstanding the harrowing experience the civilized world suffered recently in the futile Persian Gulf crisis of 1991. Thus, we have the international debt problem as an instrinsic part of a State's foreign policy; debt reduction has become the stabilizing factor in the continuing saga of the Third World States; the onset of the New International Economic Order (NIEO) has given impetus to n e w parameters in complex financial transactions; the problem of international taxation vis-a-vis multinational enterprises; new dimensions in international trade law and transborder relationships. In fine, it will not be surprising for us to be confronted with a one-world currency, replete with state mergers akin to the current global thinking on regional trading blocs, economic diplomacy, leveraged buyouts (LBO's), take-overs, and acquisitions, of the world's corporate raiders. STATE OF INTERNATIONAL LAW Dr. Manfred Lachs, a former President of the International Court of Justice, has this to say on the "present" state of international law, as published by the American Journal of International Law ("Views from the Bench," October 1992, Vol. 86, No. 4), thus: "During the last two decades, we have frequently heard about a crisis in t h e kingdom of international law. Without engaging in semantics, one can understand the word crisis in its normal dictionary meaning as a turning point in the progress of anything; more, a state of affairs in which a decisive change for better or worse is imminent. However, these connotations are not necessarily present in the minds of those who apply the term to international law. They intend rather to refer to t h e weakness to which it is condemned to its subordinate role and fragile existence; even international lawyers may speak or its ambiguity. In some instances, they point to the prevalence of a Bense that resort to legal arguments by policy-makers may be detrimental to world order

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and thereby counter-productive for the State that uses such arguments. Thus, a picture of gloom is painted and the world almost consigned to lawlessness in international relations. Similar, even stronger expressions of dubiety emanate from politicians and statesmen. To recall the words of a distinguished representative of the field: 'Much of what is called international law is a body of ethical distillation, and one must take care not to confuse this distillation with law.' Many scholars and practitioners underscore the point that international law is violated with scandalous frequency and proves ineffective whenever its operation is essential. The number of such opinions itself is a significant phenomenon that calls for serious reflection. Jurists have become wont to refer to our days as a time of perplexity. "But is it true that we are living thru the tragedy of contemporary international law? According to Stanley Hoffman, 'the tragedy of contemporary international law i[s] that of a double divorce: first, between the old liberal dream of a world rule of law, and the realities of an international system of multiple mini-dramas that always threaten to become major catastrophies; second, between the old dream and the new requirements of moderation.' "Yet, notwithstanding great [scientific and technological] progress — one can say that at no state of history have so many chapters of international law been codified and customary law covered so much ground: since World War I I , 33,947 agreements have been registered and deposited with the United Nations ( U N ) , i.e., from December 1946 to May 30, 1989; international law has been unable to meet all the challenges and accommodate the needs of the international community. It has remained very much behind the times. This is due to serious conflicts of interest and changes frequently resulting from speedy technological developments. Almost all chapters of the law are involved; some illustrations of recent events may suffice. The five freedoms of the air failed to be generally accepted; they have been adopted in bilateral agreements. A new hypersonic vehicle travelling in the air and space requires corresponding legal regulations. Problems arise with regard to noisy aircraft. Armed attacks against airplanes accidentally crossing frontiers and air hijacking constitute a threat. Moreover, implementation of the law of the sea encounters serious difficulties and the law of

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outer space is highly inadequate. More specific rules are required on data transmission and implementation of the concept of the common heritage of mankind. The commercialization of outer space activities raises new legal issues. Space debris, a by-product of space activities, seriously endangers all space activities. Parts of space objects, such as payloads, controllable fragments and boosters that continue to travel, may damage newly launched satellites. Thus, not long ago, two missions of the US. space shuttle had to alter their path to avoid collision with derelict parts of space objects. A general agreement on the duty to remove them and liability for damage is urgently needed. Similarly current provisions on remote sensing do not adequate protect the interests of the States concerned and more precision is required. The provision on consultation with a State whose territory is sensed in order to make available opportunities for participation and enhance the mutual benefits to be derived therefrom seems inadequate. (GA Res. 41/65.) "In addition, important progress is required in international economic relations so as to bridge the gap between the North and South created by the rapid [growth) in science and technology [which] has created common interests and multiplied common action, and which has become imperative. It has had a crucial impact on macroeconomic and geopolitical factors such as shifts in interstate relations. It is reflected in investment trends, the operation of the OECD and G A T T , and the development of the European Communities and exCommunist and developing countries."

NEW FORCES IN INTERNATIONAL RELATIONS If, as has been aptly said, the dynamics of the human mind are notoriously intricate, those of political States are even more defiantly so. Sovereign leaders, both of the West and East, aided by their subordinates in the diplomatic service, issue challenges only to beat hasty retreats; heady with wine, they smile at one another in summit conferences, yet, the moment they reach their own backyards, the world of illusion dissolves into their own cruel world of fact; intrigue begins to set in, and the air is rent with cries of pernicious hypocrisy. Hence, we are indeed in the vortex of a rapid deteriorating world caught in the grip of its own manmade tension.

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Keen articulation was made manifest by the late United Nations Security Council President Carlos P. Romulo when he assayed the grim realization that the evils of rampant protectionism threaten the world economic order, threatening most of all the developing countries whose developmental efforts are bound "unless arrested by wise global measures to slide precipitously into the old morass of incurable poverty." The symphonic symphony of warnings even has elaborate seasonal variations. The alignments and antagonisms of the recent past are shifting ground and structures premised on their stability appear to be crumbling. Even the bedrock of the international system, the sovereignty of nation-States, is subject to severe erosion. In the 70's and 80's, simply to portray instabilities in world politics, would be to recount the obvious. For the 90's, the logical attempt is to seek the underlying causes, to speculate on their force and how they could alter the political and institutional landscape, and, to acupuncture how foreign policies could scale economies or discombobulate the eventual emergence of alternative patterns of world politics. A classic example of this kind of reasoning, i.e., the U.S. move in boycotting the 1980 Moscow Olympics, only proved that it was vengeful and jingoistic. The trend as it is becomes a reduction of the idea of sports to the level of the ridiculous. With every Olympiad, the Games seem to drift farther into their own distorted wonderland. Look at what Hitler did in his Berlin 1936 Olympics: he legitimized a charade! Given the mushiness of international life, new forces in international relations are now being brought about by the postCold War era — a period of unusually stable expectations regarding the identity of friends and adversaries — expectations that profoundly influenced the day-to-day diplomacy of military affairs, trade and investment, development assistance, and international institutions. Recall that the power conflict between the United States and the former Soviet Union was implicit in the structure or the post-Cold War world in that the only grave potential threat to the security of one stemmed from the existence of the other. Completely aside from the ideological issue, no other single nation or even group of nations in the immediate Cold War years was in a position to constitute a serious threat to either of them. In this light, thus, foreign policy analysis could reasonably be concentrated on precise evaluations of Bpecific policy options. With the advent of post-Cold War attitudes, expectations

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underlying inherited policies and institutions, seem to be dissolving. An attempt to discern emerging patterns in the current of contemporary world politics is necessarily speculative, yet informed speculation is perhaps most important — and most difficult — when traditional patterns appear to be breaking down. WORLD POLITICS With an impending third world war always lurking dangerously in our midst, it is best that we understand the real meaning of world politics. Michael Curtis, professor of political science at Rutgers University, in the introduction of his book The Nature of Politics, wrote: "Politics is organized conflict about the use of public power — the conflict is between two classes of politicians, the appointed and the disappointed. The political world, as much as any other, is often sordid, full of chicanery and machination. If politics is the story of the ambitious and the self-seeker, it is also the story of convictions and of principles, and the attempt to put them into practice. [For] [t|he essence of politics is power, the struggle to obtain and to maintain it, and the use made of it. Indeed, for some, politics becomes the study of influence and the influential. "Students of politics, therefore, necessarily examine the goals proposed; power is always, as Laski argued, an essay in the conditional mood. When activity is regarded as harmful to the welfare of a community, as with Iceland's discovery that foreign fishing reduces its own food supply, the previously accepted rule about the territorial limits of nations is broken. "Control over power is essential for civilized and humane existence. There are no profound political axioms than that only he who wears the shoe knows where it pinches, that it is the diner, not the cook, who is the best judge of a feast. This implies the responsibility of the ruler. Politics deals with both the contingent and the unknown. Political solutions are temporary at best, irrelevant at worst. All politics is, as de Maistre called history, experimental politics. But, as the experience of the highly educated Germans showed in the Nazi era, education is not automatically synonymous with

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political wisdom. Few today would argue that the diffusion of knowledge automatically produces the progress of humanity, or provides a guide to political action. Yet, even in the face of ignorance and uncertainty, decisions must still be made. Politics is drama, rather than tragedy moving toward an inexorable fate. To argue that human actions are determined means political acceptance or quiesence. The wisdom of the past is still appropriate: 'He that considereth the wind shall not sow/And he that looketh to the clouds shall not reap.' Actions, decisions and the wielding of power are the stuff of politics. But political action is necessarily discriminatory, since people will be affected unequally by it. Even if there is no felicific calculus by which the greatest happiness of the greatest number can be mathematically obtained, some calculation is always made of the intended effect of action and degree of satisfaction that it will bring. The attempt to produce maximum satisfaction makes politics the art of compromise. The conciliation of contending forces in society is a prime requirement of political success. "The nature of politics depends on a multitude of factors: not only on the political and social institutions, but on the personalities involved, the arena or political interest, the scope of political concern. It may have been George II's belief that politics was a trade for a rascal, not for a gentleman, that helped lose what was then and what might still have been the mo6t promising of the British colonies. The interest of the citizen body is another relevant political factor. The French have a saying: 'Qui s' excuse, s' accuse.' Perhaps it is worth considering whether those who refuse to take sides in political contests should not be dishonored and disfranchised. The subject matter of politics is both timeless and contemporary; the arena in which politics is staged is one that continually changes. Political struggles have always been waged between the forces or order and movement, reformism and conservatism, between those who stress rights and those who stress duties. "Political injury never quite catches up with contemporary life. New problems abound — the greater pace of change, the introduction of automation, the development of new forms of energy, the expansion both of government activity and of executive power, the increasing role of the military in both economic and political life, continuing monetary inflation, the

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expanding urbanization, the relative decline of industrial productivity in the U.S. compared with other nations, the growing social emancipation of women, the hungry demand for higher education, the question of cultural standards — these and many more problems have entered the political field. Not only are there additional political problems — the problems are also more complicated. The problem of loyalty and of political obligation becomes confusing in a world of atomic spies and international civil servants. The fundamental question about the essence of democracy becomes complicated in an age when totalitarian and dictatorial regimes have received .enthusiastic mass support and approval. Moreover, the mood of politics today is basically internationalist or transnationalist, rather than isolationist. There is increasing recognition that national purposes are also international purposes, and that there is a close interrelationship between internal and external policy. The welfare of the U.S. chicken farmer is interrelated with the U.S. attitude toward the European Common Market. Since the beginning of the Cold War, the major battle, which has reacted in a variety of ways on national affairs, has been an international one: between 'the forces of dialogue and those of terror,' as Albert Camus put it. "Politics has been extended in another way — geographically — due to the remarkable speed with which former colonies in Africa and Asia have in the last [few] decade|s| emerged to independence. With this rise of a host of peoples to Statehood has come the 'revolution of rising expectations,' probably the most compelling factor in politics today. Strong controls may be expected for the initial accumulation of capital and for economic development. Socialist in economic attitude, neutral in foreign relations.and, often dictatorial in political behavior, these countries have produced dilemnas as well as fascination for the West. Over a hundred years ago, de Tocqueville argued that 'a new science of politics is needed for a new world.' The argument is still valid, but the new world is now the whole world." In line with this is the argument propounded by N.J. Spykman in his book The Geography of the Peace, thus: "Although the special objective in war is the incomplete destruction of a particular enemy, in both peace muBt be world geography. In a period of global welfare, military strategy muBt consider the whole world as

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CONSIDERATIONS

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a unit and must think of all fronts in their relations with each other. In the search for global peace and security, the unit area for analysis must be co-extensive with the surface of the earth. In any case, the objectives of peace and security for a State and for the world as a whole must inspire the final choice of policy to the exclusion of such aims as expansion and aggrandizement of power." DEMOCRACY BANNED IN EASTERN EUROPE FOR OVER 40 YEARS From 1945 (the end of World War II) until the early 1990's, democracy was banned in Eastern Europe, comprised of Bulgaria, Czechoslovakia, Romania, Hungary and Poland. Ruled and dominated by the Communist Party, largely under the Soviet Union's control, 1989 marked the year Soviet control was lifted with the collapse of the Communist regimes and the advent of democracy. (See Simon Goodenough, 7500 Fascinating Facts [London: Dean, 1992], p. 46.) THE COMMONWEALTH OF INDEPENDENT STATES The collapse of the central Communist power in the Union of Soviet Socialist Republics (USSR) in 1991 gave four of the republics no choice but to leave the Union and become independent, namely: Estonia, Georgia, Latvia, and Lithuania. The remaining 11 republics then formed a loose confederation known as the Commonwealth of Independent States (CIS): They are Russia (the largest), Ukraine, Belorussia, Armenia, Azerbaijan, Kazakhstan, Kirghizia, Moldavia, Tadjikistan, Turkmenistan, and Uzbekistan. Note, however, that these individual States are predominantly in control of their own affairs and only cooperate on major issues. iSee Goodenough, supra, p. 46.) NEW INTERNATIONAL ECONOMIC ORDER It has become evident that there is an urgent need to establish a new system of international economic relations based on the common interest of all States, whether rich or poor. The consensus is that it is clearly the task of the UN system to provide the instrument for the realization of this goal. (Jorge R. Coquia, "Significant Aspects of the New International Economic Order in the New Law of the Sea," The Phil. Yearbook of International Law, Vol. V I I I , 1981, p. 50).

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The 7th Special Session of the UN General Assembly marked the turning point in the history of international economic cooperation and in the history of the UN itself. On May 1, 1974, the General Assembly passed Resolution 3201 (S-VI) entitled "The Declaration on the Establishment of the New International Economic Order" and"3202 (S-VI) on T h e Declaration and the Program of Action of the New International Economic Order." Identifiable, thus, by an examination of the Declaration together with the Charter are the following broad areas: 1. Permanent Sovereignty over Natural Resources (NIEO Declaration); 2.

Regulation of Foreign Investment;

3. tions;

Regulation and Supervision of Transnational Corpora-

4.

Nationalization of Foreign Property and Compensation;

5.

International Trade;

6.

Transfer of Technology;

7. International Financial and Monetary Institutions, in particular their procedures on decision-making; and 6. International Sea-Bed — in particular, the exploration and exploitation of the resources of the sea-bed and ocean floor beyond the limits of national jurisdiction, on the basis that these resources constitute the common heritage of mankind. In fine, the establishment of a New International Economic Order bristles with complex legal issues, call|ingj for analysis, innovation, and ingenuity in devising legal instruments and legal mechanism at international, regional and national levels. It requires an imaginative application of legal techniques — al) of which presents an exciting challenge to legal creativity. (Kamal Hossain, "The Role of Law and Lawyers in the Building of the New International Economic Order: A Challenge to Legal Creativity," Phil.. Yearbook of International Law, Vol. V I I , 1981, p. 107). There are, in fact, a number of international efforts geared toward alleviating the disequilibrium existing between developed and developing countries.

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Harvard-educated Dr. Augusts Caesar Espiritu (former Phil, envoy to Germany) cites several emerging international obligations, namely: 1. the United Nations Code of Conduct on Transnational Corporations. This is but one of the activities of the inter-governmental organizations to reconcile the competing interests of capital exporting and importing countries. 2.

the United Nations Charter.

3. the Charter of Economic Rights and Duties of States. Both nos. 2 and 3 contain influences already manifest in the economic relations of nations, including that of international investments. 4. the proposed Code of Conduct on the Transfer of Technology. Ongoing discussions are being made anent this proposed Code. 5. the Paris Convention for the Protection of Individual Property. It is now undergoing a revision. 6.

the emerging new frontiers in: a. b. c.

patenting oF property; plant breeders' rights; and bio-technology.

As correctly assessed by Dr. Espiritu, these influences "have changed the conception under traditional international law that Lhe degree of development reached by a given State is a matter regarded as generally within its domestic jurisdiction." ( A . Caesar Espiritu, "The New International Economic Order and the Emerging International Obligations in International Investments," The Philippine Yearbook of International Law, Vol. X I , 1985, p. 46). A NEW WORLD ORDER? American President George Bush once said of the 1991 Persian Gulf War: It was about: more than one small country; peaceful settlement of disputes; solidarity against aggression; reduced and controlled arsenals; just treatment of all peoples. More importantly. Bush talked of the Gulf War as the inkling of a "new world order" with new ways of working with other nations. However, not long after, the flow of the White House words about a new world order slowed to a trickle.

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For all intents and purposes, the term "world order* is used in conjunction with the emerging world politics. Thus, two (2) modalities of looking at a "new world order" are thru the approaches made by (1) Realists and (2) Liberals. "Realists," in the tradition of Richard Nixon and Henry Kissinger, see international politics occurring among sovereign States balancing each other's power. World order is the product of a stable distribution of power among the major States. "Liberals," in the mold of Woodrow Wilson and Jimmy Carter, look at relations among people as well as States. They see order arising from broad values like democracy and human rights, as well as from international law and institutions as the United Nations. Bush, for his part, thought and acted like Nixon, but borrowed the rhetoric of Wilson and Carter. Both aspects of order are relevant to the world situation with the then Bush administration failing to sort out the relations between them. Questions: Why not simply leave the task of maintaining world order to the U.S.? Answer: This is quite a "mission impossible." If the rest of the world is mired in chaos, and government are too weak to deal with their parts of a transnational problem, the U.S. government will not be able to solve such problems alone or influence them to reduce the damage done to Americans. No doubt, the U.S., in realistic terms, will remain the world's largest power well into the 21st century. Nonetheless, it wants to avoid the role of a world policeman, and correctly at that. For Charles Krauthammer, author of the The Unipolar Moment (1992), the Gulf War marked the beginning of a Pax Americana in which the world will acquiesce in a benign American hegemony. While the premise is correct that the collapse of the Soviet Union left the world with only one superpower, the hegemonic conclusion does not follow. For one, the world economy is tripolar and had been since 30 years ago. Europe, Japan, and the U.S. account for two-thirds of the world's products, but here, in economics, at least, the U.S. cannot exercise hegemony. Because of the diffusion of power thru transnational interdependence, hegemony is also unlikely. According to Harvard Center for International Affairs Director Joseph S. Nye Jr. (also author or Bound to Lead: The Changing Nature of American Power), at least three (3) examples may be cited: First, private actors in global markets constrain the way interest rates can be used to manage the American economy.

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Second, the transnational spread of technology increases the destructive capacities of otherwise poor and weak States. Third, a number of issues on the international agenda — drug trade, A I D S , migration, global warming — have deep societal roots in more than one country and flow across borders largely outside of governmental control. In Nye's opinion, since military means are not very effective in coping with such problems, no great power, the U.S. included, will be able to solve them alone. The world order, after the Cold War, avers N y e (now U.S. President Clinton's intelligence adviser) is sui generis, and in light of this, he says, "we overly constrain our understanding by trying to force it into the procrustean bed of traditional metaphors with their mechanical polarities." Adds he: "Power is becoming more multi-dimensional, structures more complex and States themselves more permeable. This added complexity means that world order must rest on more than the traditional military ba'.ince of power alone." A ONE-WORLD CURRENCY? To begin with, a question may be interposed about the present currency system; IB it here to stay? — The answer to the first question is that the present system, while it has become an integral part of international financial markets, its functions cannot be expected to contribute to both private and public international liquidity and to improve the level and the efficiency of its liquidity. This becomes inevitable if the world moves toward financial autarky. Will the concept of a "one world currency" gain eventual success?; is it practicable for all countries to have the new system? The sole answer to the two questions must be distinguished. Governments end businessmen are growing tired of floating exchange rates. They may not be ready for a world currency, but that is the way things are moving. Under the present floating exchange system, international business has become a game of musical chairs. While this does not translate to a return to fixed exchange rates, there is need for some mechanism that will give a clearer, more dependable picture of the future value of money. There is talk that there is no alternative to the floating exchange rate system. Perhaps a range can be set within which the yen, the D-mark, and the U.S. dollar can

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be allowed to fluctuate. Something like that is now in effect in the European Monetary System (EMS.) The-feltr need to set up a communal body like the European Community (EC) in Western Europe and in other economic spheres is a short-term step toward a long-term aim of political unity Tor its members. Should the long-term goal be reached, the establishment of a regional economic community or common market's currency system (or of a central European or Asian bank, for instance) would become entirely possible — eventually leading to a Keynes-inspired world bank, and eliminating in the process, heavy reliance on the U.S. dollar. The European Community can hope to move towards a common currency and single central bank by 1994. As the logical last step in the EC's economic policy convergence, an international treaty enshrining the two initiatives in law (i.e., a common currency and a single central bank) must be worked out for its eventual realization. Accordingly, the hold-up now, because of technical problems, will probably be on the order of 8 months or so. Although one may seriously doubt the emergence of a World Currency, the debatable proposition, nonetheless, is on how such probability may be brought about. On the desire for it, suffice it to state that as the 21st century approaches, the natural forces that are pushing the world towards economic integration will offer governments a broad choice. They can go with the flow, or they can build barricades. Preparing the way for the World Currency will mean fewer pretended agreements on policy and more real ones. It will mean allowing and then actively promoting the private sector use of an international money alongside existing national monies. That would let people vote with their wallets for the eventual move to full currency union. The alternative — to preserve policy-making autonomy — would involve a new proliferation of truly draconian controls on trade and capital flows. This course offers governments a splendid time. They could manage exchange movements, deploy monetary and fiscal policy without inhibition, and tackle the resulting bursts of inflation with prices and incomes policies. It is a growth-crippling prospect. "Pencil in the World Currency for around 2018, and welcome it when it comes," as the battlecry goes. The World Currency would probably start as a cocktail of national currencies, just as the Special Drawing Right (SDR) is

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today. A single, uniform world currency would, however, go beyond the SDR'e traditional role as an international monetary unit (in fact, a form of international paper currency backed up by almost every free country in the world and acceptable as if it were gold equal to fixed proportions limited to five major currencies (i.e., U.S. dollar, British pound sterling, Swiss franc, German Dmark, and Japanese yen.) The ultimate question lies on how a World Currency may materialize. Since the concept on the existence of a "world monetary policy" (as distinguished from a "national monetary policy"), the World Currency must not only be an international unit of currency based on gold but also a World Currency zone imposing Light constraints on national governments: (a) there would be no such thing as a national monetary policy; (b) the World Currency supply would be fixed by a new central bank, descended perhaps from the IMF; (c) the world inflation rate — and hence, within narrow margins, each national inflation rate — would be in its charge; (d) each country could use taxes and public spending to offset temporary falls in demand, but it would have to borrow rather than print money to Finance its budget deficit; (e) with no recourse to the inflation tax, governments and their creators would be forced to judge their borrowing and lending plans more carefully than they do today. These principles are governed by international financial law, including the legal rules which regulate international financial organizations and currency cooperation. Finally, the respective national States must renounce their respective "sovereignties," and meet in a monetary convention to draft the "Currency of the World." Inasmuch as a universal economic problem can be solved along national lines, certainly and naturally, only with the presence of an international coordination or economic policy would nation-States be able to build, nurture, and muster any plan, any move towards the ultimate realization of a truly one world currency. — 0O0 —

Chapter 2 SOURCES OF PUBLIC INTERNATIONAL LAW

INTRODUCTION Different authorities give different sources of Public International Law. The most authoritative answer, however, seems to be found in Art. 38 of the Statute of the International Court of Justice, which enumerates the various rules applicable to the solution of international disputes submitted to the Court.

Art. 38 of the Statute of the International Court of Justice provides that: "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; Vb) international custom, as evidence of a general practice accepted by law; (c) nations;

the general principles of law recognized by civilized

(d) subject to the provisions of Art. 59 (which says: 'The decision of the Court has no binding force except between the parties and in respect of thaL particular case'), judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 66

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67

"2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto." 'Ex Aequo et Bono' 1

Z" This is the basis for a decision by an international tribunal on the grounds of justice and fairness. Article 38 of the Statute of the International Court of Justice cites ex'aequo et bono as an alternate- means ofdecision-making in place of the normally employed legal ruleVof Treaties and custom. However, a case can be decided ex aequo et bono only with the consent of both parties to the dispute before the judicial body. (Bledsoe J^Boczek, The International Law Dictionary, 1987 ed., p. 11.) The International Court of Justice (ICJ) nor its predecessor, the Permanent Court of International Justice (PCIJ), has not been called upon to decide a case ex aequo et bono, although the principle of equity has been applied, e.g., in the dispute between the Netherlands and Belgium over the diversion of water from the Meuse River, settled by the Permanent Court of International Justice in 1937; also the North Sea Continental Shelf cases decided by the ICJ in 1969. Ex aequo et bono has been resorted to by international arbitral tribunals in the Cayuga Indians claim in 1926, the Guatemala-Honduras boundary issue in 1933, and the Gram Chaco War between Bolivia and Paraguay in 1938. Its relative lack of use reflects the reluctance of States to grant such a sweeping authority to an international tribunal. (Ibid., p. 12). It will be noticed that the Statute divides sources into two Groups: the direct sources: and the indirect^secondary, or subsidiary sources. Direct Sources: .' International conventions — (bipartite treaties as such having binding force, and are considered law only insofar as the parties thereto are concerned; e.g., the PhilippineUnited States Tax Treaty has the force of international law only between the Philippines and the United States). • ( b ^ International customs (such as cabotage — the monopoly of a State in coastwise trade, shipping and navigation; angary — the right of a belligerent State, in time of war, to make use of the property of neutral States, located within the territorial jurisdiction of the belligerent, upon payment of

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reasonable and just compensation; the maritime zone — the strip of water along the exterior coastline of a State within which its jurisdiction may be exercised). (NOTE: International "practice" may be distinguished from international "custom" in that the former suggests the formative process, while the latter suggests that the process has beeircbmpteterf. In other words, the former may be said to be the cause or evidence of the act of creation, while the latter is the effect or result. In fact, as Prof. D.P. O'Connell points out in hia "International Law" (Vol. I, p. 9, 1965 Edition), "only when a tradition of acting is followed under the conviction that it MUST be followed is it of significance^

a

^ ^ ^ ^ p ^ e ^ a ^ r n ^ ^ r ^ ^ c ^ b y a number of States in the field of international relations -

^

£b*T of time

repetition of the practice over a considerable period

conception that the practice is required by, or consistent with, prevailing international law ^tdT^general acquiescence in the practice by other States. (Hudson on Art. 24 of the Statute of the International Law Commission). ]. *(3) The general principles ofjnw (e.g., prescription, resjudjcata, resjnierjalios acta; pqctasiint servanda, lex specialis derogat generali, conceptions of restitution, logical rules of proof, rules against unjust enrichment, jurisdictional primacy of international law over municipal law.). (See D.P. O'Vonnell, International Law, Vol. I, p. 13). Since these principles are universally adhered to, one may logically conclude that they are deemed necessary for the maintenance of justice. The principle of "prior exhaustion of national _remedies" was applied by the international Court of Justice in the Interhandel Case (between Switzerland and the United States!.' 1

'Brierly, The Law of Nations, p. 63.

SOURCES OP PUBLIC I N T E R N A T I O N A L L A W

Leovillo C. Atfustin v. Hon. Romeo F. Edu L-49112, Feb. 2,1979 FACTS: Letter of Instruction No. 229 (1974), as amended by Letter of Instruction No. 479 (1976), requires all motor vehicles to have an early warning device (EWD). This was issued by President Ferdinand E. Marcos to eliminate one of the major causes of accidents — the presence of disabled, stalled, or parked motor vehicles, without the proper signal devices to warn motorists of their presence. The 1968 Vienna Convention on Road Signs and Signals, ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices. Is the requirement valid? HELD: (thru Mr. Justice, later to become Chief Justice, Enrique M. Fernando): The requirement is valid and constitutional in the exercise of police power. Besides, the aforesaid Vienna Convention is a generally accepted principle of international law which is part of the law of the land. It is not for this country to repudiate a commitment to which it has pledged its word. The concept of pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality. INDIRECT, SECONDARY, OR SUBSIDIARY SOURCES. tff Decisions of international tribunals (Generally, not those of municipal or national courts of justice; however, the decisions of these latter courts may be deemed to be included under the general phrase "judicial decisions" because although as such, they do not constitute a source of international law, still, if various national tribunals throughout the world decide identical or similar cases in invariably a more or less uniform manlier, there is good ground to believe that there exists an "international custom" on the matter. Moreover, be it noted that while as such decisions of the Supreme Court of a particular country, are not sources of international law, said decisions will, nonetheless, be received with due respect (though of course, not as authority). " 3

3

'See Oppenheim-Laulerpacht, International Law, Vol. I, Sec. 19a. '•Thirty Hogsheads of Sugar v. Boyle, Cranch. 141 (1916).

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fif Writings and teachings of the most highly qualified publicists (Insofar as these writers refer to Public International law as it really is, and not how it ought to be, their writings may be said to be secondary sources of the subject. )* West Rand Central Gold M i n i n g C o . L t d . v. T h e K i n g 2 R . B . 391 (195) FACTS: Government officials or the Republic of South Africa allegedly seized two parcels of gold owned by the West Rand Central Gold Mining Company. Subsequently, the Republic was conquered by Great Britain and annexed to the latter State. A suit was filed by the company against Great Britain (actually against the King) to recover said parcels, on the ground that Great Britain, as conqueror, had the duty under international law to assume the obligations of the conquered South African Republic (with respect to the parcels). Issue: Is there such a duty? HELD: It is true that whichever has received the common consent of civilized nations must have received the assent of Great Britain. But any doctrine so invoked, must be one really accepted as binding among nations. Any international law sought to be applied must, like anything else be proved by satisfactory evidence, which must show either: (1) tnat the particular proposition alleged has been recognized and acted upon, by Great Britain; or (2) that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it. The mere opinions of jurists, however, eminent or learned, that it ought to be so recognized are not in themselves sufficient. They must have received the express sanction of international agreement or gradually have grown to be part of international law by their frequent practical recognition in dealings between various nations. Inasmuch as in this

*See The Paquete Habana, 175 U.S. 687.

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case the particular doctrine alleged has not been adequately proved, judgment must be rendered in favor of the Crown, i.e.. Great Britain is not bound by the obligations of the Republic of South Africa. T h e P a q u e t e Habana 175 U.S. 677 (1900) FACTS: During the Spanish American War, two fishing vessels (the Paquete Habana and the Lola), flying the Spanish flag, and while regularly engaged in fishing on the Cuban coast, were seized by the U.S. Navy. It was discovered that until the moment of capture, the vessels did not know that a war was being fought. It was also proved that the vessels had neither arm6 nor ammunition; and that neither ship attempted to run the blockade after its existence was made known to them. In Florida, to which they had been brought, they were considered by a U.S. District Court as legitimate prizes of war. They then appealed to the U.S., Supreme Court alleging that under international law, and considering the circumstances of their capture, they were exempt (with their cargoes and crews) from capture as prizes of war. HELD: They are exempt from such capture because of an international custom on the subject — a custom that began in 1403 during the reign of King Henry IV of England, found encouragement in a treaty entered into in 152L between Emperor Charles V and Francis I of France, and approval in American practices from the Declaration of American Independence in 1776. fc

International law is part of our law, and must be ascertained and administered by courts of justice of appropriate jurisdiction. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to customs and usages of civilized nations; and as evidence of these, to the works of jurists-, and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, N O T for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

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SOURCES FROM OTHER VIEWPOINTS (1) According to to Hans Kelsen, Public International Law has its source principally in the decision of an international tribunal; this decision is a valid norm of international law only if the tribunal has been properly constituted by an international treaty; the treaty itself is valid as a source if the maxim of pacta sunt servanda — C"treati£S_must be complied with in good faith") is adhered to; and finally, the reason why we have the maxim is because of international custom. In short Kelsen says that the ultimate source is international custom which gives rise to pacta sunt servanda, which in turn justifies the existence of international conventions; the treaties then make possible the formation of international courts, the precise purpose of which is to lay down decisions on the matter. The decisions thus rendered constitute the "sources" of international law. 5

(2) Oppenheim, upon the other hand, categorically says: Customs and treaties are the two exclusive sources of the law of nations. When writers on international law frequently enumerate other sources besides customs and treaties, they confound the term 'source' with that of 'cause" by calling sources of international law such factors as influence the gradual growth of new rules of international law, without, however,'"bearing the historical facts out of which these rules, receive their legal force. Important factors of this kind are: (a)

opinions of famous writers on international law;

(b) decisions of prize courts; (c)

arbitral awards;

(d) instructions issued by the different States for the guidance of their diplomatic and other organs; (e)

state papers concerning foreign politics;

(f)

certain municipal laws;

(g) decisions of municipal courts. "All these and other factors may influence the growth of international law either by creating usages which gradually turn

'See Kelsen, Principles of International Law, pp. 417-418.

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into custom, or by inducing the members of the family of nations to conclude such treaties as stipulated legal ruleB for future international cortducL." 6

NOT&.Jnternational comity OT a source of international law. However, it influences its growth. On this point, Oppenheim comments: "In their intercourse with one another. States do observe not only legally binding rules and such rules as have the character of usages, but also rules of politeness, convenience, and goodwill. Such rules of international conduct are no rules of law, but of comity. The comity of nations is certainly not a source of international law, as it is distinctly the contrast to the law of nations. But there can be no doubt that many a rule which formerly was a rule of international comity only is nowadays a rule of international law. And it is certainly to be expected that this development will go on in the future also, and that thereby many a rule of present international comity will in the future become one of international law." 7

Allied B a n k International v. Banco Credito Agricola de Cartago 757 F.2d 516 (U.S. Court of Appeals, 2d Cir., M a r . 18, 1985) Appellant, Allied Bank International, brought an action on behalf of a syndicate of 39 banks to recover unpaid principal and accrued interest on a series of promissory notes issued by appellers, three Costa Rican banks wholly owned by the Government of Costa Rica. Appellees had ceased making payments on the notes in reliance on decrees issued by the Costa Rican Government prohibiting the repayment of foreign currency obligations in order to resolve a national economic crisiB. The district court dismissed the action on the basis of the Act of State doctrine. The U.S. Court of Appeals for the Second Circuit affirmed per curiam, holding that regardless of the application of the Act of State doctrine, the actions of the Costa Rican Government were consistent with

"Oppenheim, International Law (1905) B 19 — Note thai when this edition at Oppenheim was writ tail in 190ft, The Permanent Court of International Justice (under the League or Nations) and the International Court of Justice (under the United National were not yet in existence. 'Ibid.

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U.S. law and policy and were, therefore, entitled to recognition on the basis of C O M I T Y . CODIFICATION OF INTERNATIONAL LAW The Codification and progressive development of international law refers to a systematic organization and statement of the international legal norms pertinent to a specific topic. (Robert L. Beldsoe and Boleslaw A. Boczek, The International Law Dictionary, 1987 ed., p. 4). This can be: (1) "codification," i.e., a more precise formulation and systematization of rules in fields where there already has been extensive State practice, precedent, and criteria; or (2) "progressive development," meaning the preparation of draft conventions on subjects that have not yet been sufficiently developed in the practice of States. (Ibid.) [ N O T A BENE: In the post-World War II era, much of the codification of international law has been the result of the work of the International Law Commission (ILC) created by the UN General Assembly in 1974 in response to Article 13 of the UN Charter enjoining the Assembly to encourage the progressive development of international law and its codification. The four 1958 Geneva conventions dealing with various aspects of the ocean regime, the 1961 Vienna Convention on Diplomatic Relations, and the 1969 Vienna Convention on the Law of Treaties are only a few examples of codification efforts of the I L C . Other codification of international law has been undertaken by the UN itself—the UN Convention an the Law of the Sea (1982) is an outstanding example. Other international organizations, both public and private — nongovernmental organizations or N G O s , e.g., the International Committee of the Red Cross has been engaged in codification work in its particular sphere of interest. (Bledsoe & Boczek, supra, pp. 5-6).]. It may plausibly be said that the first conscious effort of various governments to codify international law began with the Congress of Vienna of 1815 (which, inter alia, gave the ranking of diplomatic agents, tried to abolish slave trade, and drafted rules on the free navigation of rivers). The task of codification continued with:

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75

(1) The Declaration of Aix-la-Chapelle (1818) (this added a new class of diplomatic agents) (2) The Declaration of Paris (1856) (thiB formulated four rules of maritime law) (3) The Congress of Paris (1865) (this drafted rules of war, both on land and on the sea) (4) The Brussels Conference (1874) (rules on land war — though never enforced) (5) The London Naval Conference (1908-1909) (rules on naval warfare — also never enforced) (6) Hague Peace Conferences (1899 and 1907) (these contributed to the evolution of conventional international law) (7)

Convention on the Regulation of Aerial Navigation (Paris,

1919) (8) London Load Line Convention (1930) (this dealt with the protection of life and property at sea)." (9) Convention on the Law of the Sea (signed at Jamaica, December 10, 1982, and where the Philippines is one of the signatories). With the establishment of the United Nations, the General Assembly decided to create the International Law Commission. This Commission has for its object the promotion of the progressive development of international law and its codification. While the Commission is supposed to concern itself primarily with public international law, it is not precluded from entering the field of private international law. The Commission, after receiving comments of various governments (on their prepared drafts) may, among other alternatives, recommend to the General Assembly that a Conference be convoked in order to prepare a convention or agreement. 9

10

11

— oOo — "See Historical Survey of Development of International Law and Its Codification by International Conferences, 4 American Journal of International Law, 29 Supp. (1947). Art- 1(1). Statute of the International Law Commission, 42 A.J.I.L. 1 Supp. 119481. "Art. 1(2), Statute of the International Law Commission. "Art. 23(d), Statute of the International Law Commission. 5

Chapter 3 SUBJECTS AND O B J E C T S OF PUBLIC INTERNATIONAL LAW

SUBJECTS AND OBJECTS DEFINED n F

p

h l

r

*\ ftuhj-"* " i International Law ia_an entity 'direUh possessed of rights and obligations in the intern ationjjnegal or3er" (e^gTTinjoVereign Stated such as the Philippines, is a subject: for instance, our government is endowed with certain rights which the law of nations cannot ignore; Lo enforce said rights, the Philippines may even sue in the International Court of Justice; by the same token, official actuations by the Philippine Republic may result in its being sued in an international tribunal). An-v>Aj^-QfPnhljc Tntp rpatjonal Law, upon the_other hand, is merely fndirectSKvested with rights and obligations in the inter nation alSjptrere (e.g., a Filipino private citizen is generally regarded not as a subject but as an object: while he is entitled to certain rights which other States ought to respect, he usually has no recourse except to course his grievances thru the Republic and its diplomatic officers). QUERY A treaty in force between the Philippines and State " A " provides that "the nationals of each State shall be free to come to the territory of the other." The Secretary of Foreign Affairs of the Philippines had refused to allow Z, national of State "A" to land in the Philippines. He says that it is his duty under the law of the Philippines to keep out persons whom he considers to be "undesirable aliens," and that the law has not yet been amended to give effect to the treaty. A court of the Philippines has upheld this view. Advise Z. Give reasons for your advice.

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ANS.: On the assumption that the question has already been finally decided by a "court of the Philippines," i.e., a national court, We will advise Z that being ordinarily only an object of international law, he cannot as an individual file any claim against the Philippines. However, he can turn to his own State, i.e.. State "A", and should the latter so decide, though it is not obliged to do so, it may espouse a claim against the Philippines for injury to herself suffered thru a national. Such claim may be pursued by means of diplomatic^ negotiations and should these fail, by other pacific means of settlement.(e.g., conciliation, mediation). If the question were to be raised in an international forum like the Permanent Court of Arbitration or the International Court of Justice, the treaty will be upheld over the municipal law of the Philippines. Of course, traditional international law also recognize recourse to hostile or non-amicable methods of settlement of international disputes like rupture of diplomatic relations, retorsions, reprisals, embargo, boycott, non-intercourse, pacific blockade, etc. t

-

PRIVATE INDIVIDUALS While traditional writers insist that private individuals are merely objects and not subjects of international law, some recognized writers in recent years have accorded to the individual a new status in internationajAajv: they say, and with good reason, tnatpnvate individuals should now be regarded as subjects in the international order, in view of the importance laid on them by the following: ^cY the Charter of the United Nations Organization, and the Universal Declaration of Human Rights; (The Universal Declaration of Human Rights adopted in 1948 by the General Assembly of the United Nations, provides in its preamble that: "It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the RULE OF LAW."); i£) the Nuremberg and Tokyo War Tribunals for War Crimes (the judgments of which stressed the principle of both command and individual responsibility); ffi the norm of general international law which prohibits piracy (this, of course, can be committed only by acts of private

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individuals; not by Acts of State.) Hence, piracy cannot be committed by the crew of a public vessel acting at the command or with the authorization of a government. "Governments (which officially thru public vessels, commit acts of depredation on the high seas) cannot properly be deemed pirates, but enemies"; 1

(£f espionage rules; conventions punishing acts of illegitimate warfare; rules of general international law punishing private individuals for breach of blockade and carriage of contraband;* <J3) the practice of certain courts of permitting foreigners to appear and prosecute claims; 3

(fir) the Genocide Convention of 1948 which directly holds liable not only States, but also private individuals, for the mass extermination of a racial group; the existence of rules safeguarding the rights of aliens a n d minorities; [£H punishment for the illegal use of the flag (Kelsen points out that "under general international law, every vessel mu6t Bail under the flag of a State; but international law leaves it to the national law of the State to determine the conditions under which a vessel is allowed to sail under the flag of that State. All States are authorized to seize thru their warships, ships which illegitimately sail under their flags and to confiscate said ships by way of a decision of their own courts, as a penalty for the abuse of the flag.") This means that the owner of the ship and the master of the ship are directly obliged under international law not to commit the delict, and that the owner and the master are made individually responsible for said act;* iff)

the procedure in admiralty a n d maritime matters;

the special Btatus accorded to refugees, and to displaced Demons, such a s those fleeing from Vietnam, from Cambodia, and more recently, the Kurds from Iraq. Refugees are sometimes issued "certificates of identity," which allow some of the advantages

'The Helena, Great Britain High Court of Admiralty. 1801. 4 C Robinson's Reports 3; Hans Kelsen, Principles of International Law. p. 124. "Kelsen, op. cit., pp. 128-120. *See Eagleton, International Government, pp. 123-126. 'Kelsen. op. cit., p. 126.

is^^td- SUBJECTS A N D OBJECTS OF PUBLIC INTERNATIONAL LAW 79

of a passport. These certificates were first issued in 1922 in favor of certain Russian refugees. Later, international agreements took care of the matter. , 5

INTERNATIONAL REFUGEE LAW

F

^

"Refugee Law" is a 40-year old development in public international law and which, in general, guarantees certain basis or minimum standards in the treatment of refugees, particularly the protection of persons fleeing from persecution on grounds of race, religion, ethnic origin, or political opinion. (See Ricardo C. Fuho, "The Basis and Rationale of International Refugee Law," The Phil. Yearbook of International Law, Vol. V I I , 1981, pp. 143-149). This general principle of international law termed as-mjnrvfnulpnwnt prpt-lnrlpn the return of a person already within the territory to a country in which he fears persecution; it does not necessarily imply recognition of a duty on the part of the State to admit persons seeking asylum. {Ibid., p. 149). The rationale of refugee law is the ciuitas. maxima or the community f StateB, and the provisions of refugee law constitute an international humajutarian duty_— if the welfare of the refugees is of concern to the international community. And because international protection is granted to refugees for reasojis_ofJuirQanity, [such) attitude culminated in the establishment of the Office of the UN High Commissioner for Refugees (UNHCR) on January 1, 1951 — an event which highlighted the growing general concern for the protection of human rights. This was followed by the Convention Relating to the Status of Refugees of July 28, 1951 — which is commonly viewed as the most comprehensive instrument relating to refugees. (Ibid., pp. 144-145). Q

[ N O T E : The Permanent Court of International Justice impliedly ruled in the Mavrommatis Case (PCIJ, Ser. A. No. S, p. 12) that an individual is only an object, not a subject, of international law, when it said that the complaint of a private citizen enters the field of international law only when his national State takes up the cudgels for him, i.e., when it sues in his behalf. This ruling is subject to criticism, for it cannot be denied that international law regulates the rights and properties of both individuals

'Hudson, Vol. I I , International Legislation, p. 873.

I N T E R N A T I O N A L L A W A N D W O R L D P O L I T I CS

and States. Generally however, it is the State, using its own discretion, which acts as the instrument in the protection of the individual's rights. Moreover, while the individual is a subject of international law, his capaciLy as such is different from that of his State, e.g., the individual cannot make treaties and cannot possess belligerent rights. But it is clear that he can commit war crimes and piracy, and crimes against humanity and foreign sovereigns; he can own property which international law protects, and he can have claims to compensation for acts arising ex contractu or ex delicto. He may not be able to pursue his claims and take action to protect his property without the intervention of his own State, but it is STILL HIS C L A I M and S T I L L HIS INTEREST which the machinery of enforcement is designed to facilitate. (D.P. O'Connell, International Law, Vol. 1, pp. 118-119).] ' T h e N u r e m b e r g Judgment 41 A.J.I.L. 172 (1947) FACTS: One of the defenses raised by the war criminals in Germany was that they themselves as mere individuals were not directly liable for their acts; that they were merely carrying out the orders of Adolf Hitler, the German dictator; and that individuals have no international duties. HELD. (1) International law punishes not only States but also individuals. This rule has long been recognized. In Ex-Parte Quirin (1942) (317 U.S. 1), persons were accused during the Second World War of landing on the United States for purposes of spying and sabotage. Chief Justice Stone, speaking for the U.S. Supreme Court held: "From the very beginning of its history, this Court has applied the law of war as including that part of the law of nations which prescribes the conduct of war, the status, rights, and duties of enemy nations as well as enemy individuals." Crimes against international law are committed by M E N , not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. The provisions of Art. 228 or the Treaty of Versailles illustrate and enforce this view or individual responsibility.

SUBJECTS A N D OBJECTS OP PUBLIC I N T E R N A T I O N A L 1JVW 81

(2) The Charter of the War Crimes Tribunal specifically provides in its Art. 8 that "the fact that the defendant acted pursuant to an order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment." The true test is not the existence of the alleged orders, but whether or not moral choice was. in fact, possible. (3) The very essence of the Charter of the Tribunal is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of State authority that moves outside its competence in international law. INTERNATIONAL ORGANIZATIONS ^ (AS SUBJECTS OF INTERNATIONAL LAW) "International Organizations" are associations of States, esInhliihrd by trrnfrie? between two or more States, whose functions trr n" * * T ^ nnti T?' ™ - " ^ « r i p q and which are for utinalri" purposes subjects of international law. Public international organizations las distinguished nam "private" or "non-governmental" organizations) include global, all-purpose organizations; specialized agencies of the United Nations; other global functional organizations; and regional organizations. n

k

NON-GOVERNMENTAL ORGANIZATIONS (NGOS) — NOT SUBJECTS OF INTERNATIONAL LAW NGOs are private, international organizations that serve as a mechanism for cooperation among private national groups in international affairB, particularly in economic, social, cultural, humanitarian, and technical fields. Under Art. 71 of the UN Charter, the Economic and Social Council is empowered to make suitable arrangements for consultation with NGOs on matters within its competence. Except for limited purposes under international humanitarian law, NGOs are not subjects of international law. Examples of NGOs include the International Committee of the Red Cross (ICRC); consumer and producer associations; religious groups; teacher organizations; professional, legal, civic (e.g., Rotary Club of Manila), and medical societies; and trade unions.

I N T E R N A T I O N A L L A W A N D WORLD POLITICS

UN-ESTABLISHED WAR CRIMES COURT In order to punish those responsible for atrocities in former Yugoslav states, the UN Security Council on February 18, 1993 moved to established an international war crimes court. While it could take months (or even years) to set up the court and no alleged war criminals are in custody, there was no prospect of any trials soon, although it is hoped the plan will deter atrocities by putting combatants on notice they could face trial. U.S. officials have named Serbian President Slobodav Milosevic and Bosnian Sert leader Radovan Karadzic as possible war criminals. RAPE OF WOMEN IN BOSNIA When International Women's Day was celebrated on March 8, 1993, women throughout the world protested about the commission of rape in the former Yugoslavia. For instance, in Geneva, more than 600 women demonstrated in front of the Palace of Nations, demanding that the systematic rape of women in Bosnia be made a "crime against humanity" and calling on the UN Human Rights Commission to name a woman to lead an investigation into rape in ex-Yugoslavia. In a message, UN Secretary General Boutros Boutros-Ghali said: "[W)hile there had been steady progress on women's rights in many countries, a reversion to barbarism has occurred in others. Some countries have seen the use of systematic sexual violence against women as a weapon of war to degrade and humiliate entire populations. "Rape is the most despicable crime against women. Mass rape is an abomination; it is a symptom of the unrestrained and vicious new form of warfare which is appearing in the wake of the Cold War." In France, women demanded that rape during war should be recognized as grounds for obtaining political asylum. In Stuttgart, Germany, Amnesty International demanded that rape be recognized as a war crime. Tliis^gimipalong with the Socialist International in Paris a eked-that womeit taped in war be allowed to automatically apply foroolilical asylum\

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/ -SUBJECTS OF PUBLIC INTERNATIONAL LAW AS VIEWED We have seen that subjects in international law are those to which the international order accord personality, and are, therefore, directly endowed with rights and obligations. There are two (2) kiilds of subjects: /(l)

trie complete or perfect international personality; and

J (2) th*5 incomplete or imperfect, or qualified or quasi-inter•natibnal personality 6

COMPLETE INTERNATIONAL PERSONALITIES

Stlde is

A a very good example of a perfect international personality. States may be divided into the following categories: (a) The sifigle or the simple State (such as the Philippines);

composite State

(b) The (which may be the federal union_or State, the confederation, the real union, the personal union, or the inrar^orate_jinion). (1) The Federal ion or Federal State (such as the United States of America and the United States of Switzerland); (2) TheConfederation (such as the original Confederation of the American States, which eventually became the nucleus of the present United States). (NOTE: The principal difference between a federal union and a confederation is 4he—£act_that federal union of States exists when thacentral or federal government executes authority over both the various States in the union and the citizens thereof; while the confederation has some sort of power over its individual States, but nofoDer the individual citizens of the member-States. The federal union, as such, is an International Person, thus, the United States is represented in the United Nations as one juridical or international entity; upon the other hand, the confederation as such is not an International Person, each of the member-States being represented by its own delegate. However, there is at present no confederation or confederated State).

"See Wilson and Tucker, International Law, pp. 62-63.

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64

(N.B.: A federal union or federated State may be defined as an independent central organism, having its own governmental machinery and absorbing, from the standpoint of international law, all the individual States associated together. Upon the other hand, a confederation is a loose union or alliance formed thru a treaty among various States, each of which is fully sovereign and independent, and each of which retains its full dignity, organization, and sovereignty though yielding to the central authority a controlling power for a few limited purposes such as external and diplomatic relations." Parenthetically, it may be mentioned that the "Articles of Confederation" was the name of the instrument embodying the compact entered into by the thirteen original States of America prior to the adoption of the present United States Constitution). 7

(3) The fteal Union [such as the former United Arab Republic (U.A.R.) which was formed by two sovereign States (Egypt and Syria) linked together by a common government in external affairs and by a common chief of State. The union then possessed a single international personality (the separate personalities of the States having been merged into a unified whole). In the United Nations Organization, the delegates of the Union were referred to as representing the U.A.R. As of today, however, the Union has been split into the two original States — Egypt and Syria. Egypt has however changed its name to U.A.R — or the United Arab Republic. Other historical examples of the real union were those of Sweden-Norway (from 1814 to 1905) and or Austria-Hungary (from 1723 to 1918.)" (4) The Personal Union (this is the merger of two separate sovereign States in the sense that both have the same individual as the accidental or temporary Head of state. However, the union as such has no separate international personality since each of the member-States has its own government and its own separate international personality. It would seem that today, there is no Personal Union in existence. Historical examples include:

See Molina v. Comm.,,, Regulation del Mervadu de Hcnrqucn. 91 N..I. L u » 382.

'Blacks Law Dittianary. p. 75y. 'See Oppenheim-LauUirpachl, International Law. Vol. I. Set. H7.

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(a) Belgium and the erstwhile Congo Free State (1885-1906); and (b)

Great Britain and Hanover (1815-1890).'°

N O T E : The distinctions between a Real Union and a Personal Union are as follows: the Former has one
'"Oppenheim-Lanterpacht, op cit., Seca. 67-89.

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the Commonwealth is the unswerving loyalty, devotion, and allegiance of all the people in the various component States to their reigning monarch. 11

ARE MULTINATIONAL CORPORATIONS SUBJECTS OF INTERNATIONAL LAW? ^ * M J t is well-known that among the entities participating in the daily life of the world community, multinational corporations (MNCs) stand out. Three (3) of the MNCs principal features are relevant: X 1. they are very powerful economically and politically (they are more powerful than many member-States of the U N ) ; 2. their activity is not confined to one single State, but extends over a great number of countries, in almost all areas of the world; 3. they make transactions not only with private companies but also with States and international organizations, and their disputes with States are often submitted to international arbitration. Inspite of these characteristics, States have not upgraded these entities to international subjects proper. Professor Antonio Cassese, in his International Law in a Divided World (1988), explained thus: "Socialist countries are politically opposed to them and the majority of developing States are suspicious of their power; both groups would never allow them to play an autonomous role in international affairs. Even Western countries are reluctant to grant them international standing; they prefer to keep them under their control — of course, to the extent that thi6 is possible. It follows that multinational corporations possess no international rights and duties; they are only subjects of municipal and transnational' law."

THE ASEAN The latest grouping in Southeast Asia is the A S E A N (Association of South East Asian Nations) the members of which include

"Oppenheim-Lauterpacht, International Law. pp. 175, 182-183.

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07

Singapore, Malaysia, Thailand, Indonesia, the Philippines, and Brunei. Its principal objective is to obtain economic, educational, cultural, technological, and defense cooperation in this region of the World. There are periodic summit conferences among the leaders. Just recently, this regional bloc established the ASEAN Free Trade Area ( A F T A ) . THE AFTA Let's face it! On the matter of economic cooperation, A S E A N has really no alternative but "to hammer out stronger forms of union within the region!" Not just the wretchedness of the earth talking, but the rest of the world is sold to the idea of regional trade blocs: Europe has unified itself into a single market faster than many realize; the U.S., Canada and Mexico have created the North America Free Trade Agreement ( N A F T A ) . Other trade blocs are emerging in this decade of the '90B, and they ell signify the adage "in union there is strength, as well as exclusion." As aptly put by one well-meaning critic: "ASEAN cannot afford to watch these developments with traditional eyes — as developing countries competing individually for a piece of the pie; they, too, need to unify, and the process being long, they must start now!" The A F T A , short for the ASEAN Free Trade Area, while it has not yet taken off officially, is not alone. "Look elsewhere at contemporary changes or sweeping significance. The European Common Market and the N A F T A represent such changes. They appear to be driven by economic considerations, yet the actions and reactions of the players and populations involved are political and anthropological. The British Parliament's hesitation about the Maastricht Treaty was motivated more by socio-cultural reasons than anything else. The U.S. Congress' doubts about N A F T A are based on special interests that are as much environmental as economic." (Crocker Snow Jr., "It Is Not Only the Economy, Stupid!," The World Paper, October 1993, p. 8). Intra-ASEAN diplomacy IB particularly important at this time because there are still many outstanding differences to sort out. One problem that must be hurdled is the myopic view within the member-countries that they are "more of competitors than part-

as

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ners." Each is still competing Tor its share of markets and investments. It takes a more enlightened view ol" the region to realize that each and all have much to gain from the growth of real community. (The Daily Globe, "Editorial: Why A S E A N First?," Dec. 20, 1992). It is said that if and when the Philippines makes good its promise to improve financial management and policy will the proposed urgent measures and long-term solutions — all for the betterment of its economy — be viable. (E.C. Paras Jr., "Emerging Issues in International Financial Law: Emergence of Regional Trading Blocs," Foreign Relations Journal, Vol. V I I I , No. 1, March 1993, p. 102). For instance, the A F T A , of which the Philippines is a member, has made Filipino businessmen wary, this, inspite of its aim to tackle barriers of growth. Much more with the coming into place of N A F T A and the EC. In the case of latter, a study made by the Michigan State University and East-West Center, revealed that about 12% of A S E A N trade with North America and Europe will be lost to other countries with the creation of the N A F T A and the European Single Market. The study estimated that 4% of A S E A N trade will be diverted to N A F T A , while 8% will be lost to the Single European Market as the two economic blocs offer preferential treatment to their members. Accordingly, the traded products that will be diverted include ASEAN'S best-sellers, namely: chemical compounds, veneer, textiles, clothing, leather, iron and steel, footwear, raw sugar, petroleum products, and certain machinery items. What is the policy implication for the Philippines, in particular, and Asean, in general? As Philippine Foreign Affairs Secretary Roberto R. Romulo warned, thus: "If some members of the blocs produce some of the export products you produce, they may displace you as a source of imports for their larger market. The trading blocs may also turn protectionist by setting up new barriers on imports from non-member countries, increasing the threat to Philippines exports. Also, investments meant for the A S E A N could be diverted as larger markets created by the trading blocs become more attractive. In 1992, a total of $21.29 billion in investment applications were approved for A S E A N . Of this amount, the Philippines received only 4%, the smallest share in A S E A N . Now, while the creation of the A F T A will mitigate the trade loss by increasing intra-ASEAN trade, the projected increase for Philippine exports worldwide is expected to be only 4%."

SUBJECTS A N D OBJECTS OF PUBLIC rNTEHNATIONAL LAW

In other words, economic factors inherent in sound growth are far too numerous, complex, and at times difficult to control and coordinate. These factors, include, inter alia: the choice of priority sectors, strict selection of capital investments, reduction in public spending (especially expenditures for armaments and showcases), more rigorous management of public enterprises, control over inflation, support of national currency, reforms of the tax system, sound agrarian reform, incentives for private enterprises, and the creation of job opportunities. (E.C. Paras Jr. Economics for Lawyers [Manila: Rex Book Store], pp. xii-xiii). Be this as it may, with the A F T A ' s implementation on Jan. 1, 1993, only Singapore and Malaysia had started on regional economic projects. Brunei, Indonesia, Thailand, and the Philippines — the four other Asean members — have been delayed in the implementation of the A F T A because of kinks on administrative, legal and other aspects of the program still needed to be ironed out. These countries, said Trade Assistant Secretary Edsel Custodio, will definitely implement the A F T A on Jan. 1, 1994, however. (See Jake Espino, "AFTA Seen to Make A S E A N a Homogeneous Market," Philippine Star, Oct. 13, 1993, p. 18). Technical details and specific programs of the tariffs reduction had been approved by the A F T A Council, including the putting into place of the Comprehensive Effective Preferential TariffA S E A N Free Trade Area ( C E P T - A F T A ) scheme which would create an enlarged and more integrated A S E A N regional market. Under the C E P T scheme, tariffs that are currently more than 20% and 5% can be brought down to 5%. All tariffs would be progressively slashed to between 0% to 5% over the subsequent seven years at a minimum rate of 5% per cut. Note here that the CEPT agreement allows members to stay out of tariff-lowering arrangements on certain products until they feel strong enough to open their markets — the so-called "six minus x" formula for participation. In addition to the A F T A , other trading blocs are expected to proliferate in the 1990s, extending to the year 2OO0. Aside from N A F T A , the world is "likely to 6ee a Central American and South American version, as well as more preferential arrangements in the European Community's expanding sphere of influence and efforts to build a preferential bloc encompassing the Pacific Rim and Southeast Asia, perhaps including Oceania. Such arrangements are politically attractive because they provide bargaining power in dealing with other blocs and because they allow trade

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liberalization on a selective, 'manageable' basis. By the same token, a world of trading blocs will limit the welfare gains from trade and greatly increase interbloc tensions. One incidental consequence may be a weakening of the hard-won western control over the Middle East." (Fred Sanderson, "The Next G A T T Hound," Choices, Third Quarter 1992, cited by Washington Economic Reports, Oct. 14, 1992, p. 7). For the year 2000, regional free trade agreement, like the A F T A , are expected to conform to a strict interpretation of the qualifying conditions of Article XXTV of the General Agreement on Tariffs and Trade ( G A T T ) . To serve as a guide and model for furthering worldwide economic integration is the EC's current completion plan of its internal market. THE NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA) The N A F T A ' s (North American Free Trade Agreement) coming into fruition signals the birth of the world's largest trading bloc, composed of the United States, Canada, and Mexico. The main goals of this proposed agreement are two-pronged: (lL-to restructure industries; and (2) to rationalize production. In the view of Canadian Minister for International Trade Michael H. Wilson: "A Canadian economy which relied only on its own market would produce goods al high cost resulting in high prices. People would buy elsewhere — in Europe, in Asia or in the United States, larger economies which have the economies of scale we lack. Canada would be condemned to an inferiority from which it could never recover." For Mexican President Carlos Salinas de Gortari: "What is truly at stake is that a decision is being made as to what will happen with North America by the end of this century, or the beginning of the coming century. We have to be competitive vis-a-vis Europe and the Pacific Basin and the only way of doing so is by being together. Otherwise, it is not a matter of losing jobs [to] Mexico but spending the rest of your life buying Japanese or European products. So, as you can see, this is an exceptional historic opportunity."

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And in the characteristic language of U.S. President George Bush: "A N A F T A offers a historic opportunity to bring together the energies and talents of three great nations, already bound by strong ties of family, business, and culture. Prime Minister Mulroney (Canada) and President Salinas (Mexico) are both leaders of great vision. They believe, as I do, that N A F T A would enhance the well-being of our peoples. They are ready to move forward with us on this unprecedented enterprise. In seeking to expand our economic growth, I am committed to achieving a balance that recognizes the need to preserve the environment, protect workers safety, and facilitate adjustment." THE EUROPEAN COMMUNITY Alice F. Cabotaje, in an article entitled "A Single European Market Aborning: An Overview," wrote: "At the stroke of midnight on Dec. 31, 1992, borders and barriers within the European Community (EC), much like the infamous Berlin Wall, tumble[d] down to give way to a single market. Unlike in Berlin, however, the breakdown of the walls were not forced on the builders. It was the 12 members of the EC themselves who decided on the integration of their economies. People, money goods and services zip[ped] in and out of Spain, Greece, France, Germany, Great Britain, Belgium, Italy, Denmark, Ireland, the Netherlands, Portugal and Luxembourg with hardly a check from border guards and immigration officers. "The ideal of a single European market formally took root in 1985 when the European Commission published the White Paper on Completing the Internal Market. There are three main blocks to economic integration, the paper said. These are physical barriers like customs ports and immigration controls; technical barriers like national product standards; and fiscal barriers like taxes that result in different prices for roughly the same goods. Work to bring down these barriers thus began and the deadline was set. By the end of 1992, all — if not most — of these barriers [were] nowhere in sight. But, then having a single market lies not only in having to do away with barriers, but also with having a single currency

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and a unified monetary policy. ThuB, in 1979, the Community started the process of monetary integration. It created the European Monetary System ( E M S ) and the European Currency Unit ( E C U ) . "Three stages were set to reach the goals of Economic and Monetary Union ( E M U ) . Stage one which started on July 1, 1990 set the stage for converging the economic performances of all the EC member-countries. Differences between exchange rates are to be reduced. Monetary policies are to be coordinated. During this stage, the currencies of each EC member will fluctuate within limited bands in a managed float system. Also, a European Reserve Fund ( E R F ) is to be set up to help manage exchange rates and serve as a training ground for coordinating monetary policies. These may still seem like a long way off. But the clock is ticking and the community's members are marching toward their avowed goal, maybe not all at clockwork pace but they appear bent on getting there." INCOMPLETE, IMPERFECT, QUALIFIED OR QUASI-INTERNATIONAL PERSONALITIES There are entities which possess what is commonly denominated as an incomplete, imperfect, qualified, or quasi-international personality: among them are the deoendent_States (protectorates and suzerainties)^belligerent communities/(and in a quite modified way^ insurgent,communities, subject to certain conditions); cojojues/dependencies, and possessions^ mandates and trust territories; certain public and political corporations or companies-, and international administrative bodies, /

DEPENDENT STATES

^

There are generally two--k_inds of dependent States: the_protectorate, and the suzerainty. Both are referred to as "dependent," because in a very reaTsense, they are subject to the control and sovereignty of some other "superior" State or States in the conduct of their external and foreign relations. To the extent that they may be allowed some control in foreign matters, they are considered as international persons; if they have no authority whatsoever on this point, their personality is restricted — they may not even be accorded any Btatus as international entities.

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The difference between the protectorate and the suzerainty is this: while the protectorate (the dependent State under the authority of the "protector" State) possesses all competence in international affairs which it has not expressly and specifically waived or renounced, the suzerainty (the dependent State under the control of the "suzerain" State) has only such competence as has been specifically conferred upon it by the suzerain. In other words, the ^suzerainty is MORE D E P E N D E N T than a protectorate, and for exactly this reason, the relationship between the suzerainty and the suzerain is much closer than that existing between the protectorate and its protector." As a matter of fact, authorities say that only the suzerain has been accorded international status: the suzerainty is generalryonly vassal or tributary in character; upon the other hand, the protectorate, to a certain degree, may be said to be possessed of an international personality. -

13

Examples of fonne£suze^ainties (at present, they have become sovereign States): ( B ' Bulgaria was made a vassal suzerainty under the Sultan of Turkey by virtue of the Treaty of Berlin of 1878; J2TRumania, which used to be under the suzerainty of the Sultan of Turkey, became a full-fledged State via a decision of the same Congress which made possible the Treaty above adverted to. * (Both Bulgaria and Rumania have never been satellite States of the former Soviet Union, now a loosely-held Commonwealth of Independent States). ^ —^ 1

Examples of present-day jy^otectorates are: ( I K The Republic of Panama (under the United States); i^T The Republic or Andorra (under Spain and France); {^T In a modified sense, the Principality of Monaco (under France); (4")

Tunis (under France);

15

'"'See Wilson and Tucker, International Law, 9th Edition (1935), pp. 62-63. "See Ibid., see also Oppenheim-Lauterpacht, International Law, Vol. I, Sees. "See Wilson and Tucker, op cit., p. 63. See Oppenheim-Lauterpacht, op. cit., p. 63. 15

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(5) Until recently also, the Federated Malay States (under Great Britain). " 1

H. C. van Hoostraten v. L o w L u m Seng Federated Malay States, Supreme Court, 1939 FACTS: In World War I I , Great Britain was at war with Germany. The Federated Malay States (a protectorate under England) was confronted with the problem as to whether or not German nationals in the protectorate were to be considered alien enemies. HELD: Yes, the German nationals, may be regarded as enemy aliens in the Federated Malay States, since the latter, being a protectorate of England, can also under certain conditions be deemed to be at war with Germany. The Suzerain or the Protecting Power has, and alone has, the power to place the Protectorate State at war or at peace; the Federated Malay States were placed at war by the official acts of the Resident High Commissioners. Definitions: Subject to the distinctions already pointed out, both the suzerainty and the protectorate are weak States that surrender themselves by treaty unto the protection of a strong State in such a way that they transfer the management of all their more important international affairs to the protecting State. It must be borne in mind, however, that the name given to the protected State — whether it be suzerainty or protectorate — really does not matter; sometimes the weaker State is not even accorded any special designation. What, therefore, really matters is the degree of dependence. Brierly says: "A relation of dependence sometimes exists between two States in fact, but for political reasons, is not avowed either as a protectorate or a suzerainty. Thus the United States has at times exercised far-reaching control over the nominally independent States of Central America."' 7

Is a protectorate or a suzerainty a State? Kelsen answers this query in the following manner: "The effect of a

,s

See H.C. van Hoostraten v. Low Lum Seng (Federated Malay Stales. Supreme Court, 1939). "Brierly, The Law of Nations, p. 119.

SUBJECTS AND OBJECTS OF PUBLIC INTERNATIONAL LAW

protectorate treaty is that a body politic under a protectorate is partly subjected to the national legal order of another State and not exclusively to the international legal order, and hence has lost that independence which is an essential element of a State in the sense of international law. It is a Statelike community, not a full State." " 1

LIGERENT AND INSURGENT C O M M U N I T I E S ^ Insurgents or rebels may be said to be organized groups who for public political purposes are in a state of armed hostility towards an established government. As such, they have no rights under international law, but if the civil strife threatens to interfere with the autonomy of foreign intercourse, and has assumed such proportions as to jeopardize the sovereignty of the State over the insurgent community, certain- insurgent rights may be tacitly admitted. The following principles would then govern the so-called insurgent rights: ie

v j ^ l ) If the acts partake of "piracy" they are obviously private in character: the ends are not political, and consequently no insurgent rights a r i s e ^ ~~ / (2) Even if a foreign State admits the existence of insurgent rights, the parent State would still be liable for acts committed by the insurgent community within the jurisdiction of said parent State. 21

Example: As a result of the Boxer uprising in China, the Chinese government had to pay $335 M as indemnity to various States for injuries suffered during the insurrection. 12

(3) In case of hostile acts committed by the insurgents against a foreign State, the latter may choose to punish them, or turn them over to the parent State. 23

(4) A foreign State ought in general to refrain from interfering in the hostilities between the parent State and the insurgent

"Kelaen, Principle* of International Law, p. 161. "Wilson and Tucker, International Law, p. 66. "U.S. v. Ambrose Light, 25 F. 408. "Br. Pari. Paper*. 1887, Peru. p. 18. "For. Rel. 1901, Appendix. U o o r e , A Digest of International Law, Vol. II, Bee. 31. s

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community. For instance, the rebels ordinarily should not be extended the hospitality of the porta of the foreign State. Neither should the foreign state extradite the insurgents to the parent State. Interning of the insurgents may, however, be allowed." At the discretion of the foreign State, it may, of course, grant temporary entry or asylum." QUERY In the State of X, revolt takes pace. Some three rebels from this State X come to the neighboring country Y, carrying passports issued before the revolt, by the government of X. Question: May these three rebels be permitted to land by the authorities of Y? Give reasons for your answer. 26

A N S W E R : In the case of Nishimura Ekiu, the United States Supreme Court held: "It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in its sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may seem fit to prescribe." Thus, it is completely discretionary on the part of State Y to permit or not to permit the three rebels from State X to land in State Y ji^-land this is true whether or not the passports were issued before v (• or after the commencement of the revolt; whether or not, if issued before, the passports had been subsequently revoked; as a matter ^of fact, whether they have passports at all or not. State Y is . supposed to be a sovereign-State; no other State can, therefore, y ^dictate who may or who may not enter the State of Y. States can . <>• refuse the kind of aliens; they can also impose conditions on their entry. States may, for example, specify the kind of aliens who cannot be admitted for reasons of local security and public welfare. Thus, at State Ys discretion, it may refuse entry, say on the ground that the aliens are undocumented or are subversives * — or it may grant temporary entry or asylum, * reserving to itself the right to t

1

21

2

2

u

See Ex Parte Toscano, 1913, 208 Fed. Rep. 938.

" S e e 1 Oppenheim-Lauterpacht, Sec. 316, p. 618. H 2 U.S. 659. See, e.g., Sec. 29 (a) of Commonwealth Act No. 613. "See I Oppenheim-Laulerpacht, Sec. 316, p. 618. S e e Wilson. Escaped Prisoners of War in Neutral Jurisdiction. 35 A.J I L. (1914), 519. 522. M

z7

a

w

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expel them should they turn out to be undesirable (in Tact, said reservation does not even have to be made) or it may, as in the case of escaped prisoners of war from a belligerent country, detain them for the duration in a place or residence without necessarily interning them in the ordinary manner should this solution prove the most feasible. 30

£5A^ Just because an insurgent community has been given certain insurgent rights, it does not necessarily follow that the community has acquired the status of a belligerent. Neither is there an official recognition of the insurgents as a belligerent community as distinguished from a mere insurgent community. THE CLEVELAND M E S S A G E As a consequence of the revolution in Colombia, South America, in 1865, the insurgents were able to seize certain Colombian ports,.and to fly insurgent vessels with the Colombian flag. The Colombian Chief of State issued a decree to the effect that said ports would be considered by Colombia as CLOSED to foreign commerce under penalties meted out by the laws of Colombia, and that insurgent vessels flying the national flag were beyond the pale of international law. The United States, thru President Cleveland, refused to recognize the validity of the decree.' The message of President Cleveland of Dec. 8, 1885 added, however, the remark that the denial by his government of the Colombian proposition did N O T imply the admission to belligerent status of the insurgents. 11

32

iLLIGERENTS AND BELLIGERENT COMMUNITIES When the insurgency reaches serious proportions, the rebels, instead of being merely insurgents, may properly be called "belligerents" and their community a "belli^erentj:ommunitv'' provided that the following conditions all concur: (1) The end must be political in characterjthus, a mere mob or a party of marauders could have no belligerent rights);

"'Hall, Treatise on International Law, p. 40. "See Wilson and Tucker, International Law, p. 63. "Wilson and Tucker, op. eit., p. 69.

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/ (2) The hostilities must be of the character of war, and must be carried on in accordance with the laws of w a r (3) The proportions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible; and / (4) The conduct of the hostilities and general government of the revolting community must be in the hands of a responsible organization. M

Wilson and Tucker aver that the question of belligerency is a question ofJjjcL-and never a question of theory. Insofar as a belligerent community has been recognized as such and accorded a certain status in the international order, insofar does it possess an international personality — but only for a limited period (the duration of the arms struggle ) . 14

M

COLONIES, DEPENDENCIES, AND POSSESSIONS

^

While colonies, dependencies, and possessions (such as the Philippines under the American regime) are from the viewpoint of international law part and parcel of the territory to which they may belong, and cannot, therefore, be a State, still the international legal order grants them in a very restricted degree some international personality. For instance, they may sign international conventions, and may even become members of the United Nations Organization (subject, of course, to the consent of the members therein). Thus, even before the Philippines became independent (July 4, 1946), she was already a signatory to the United Nations Declaration, and in fact, became a member of the UN in 1945. A colony/(s'a dependent political community, consisting of a number of citizens of the same country who have migrated therefrom to people another country, but remain subject to the mother S t a t e * A dependency upon the other hand, is a territory distinct from the country in which the supreme sovereign power resides, but belonging rightfully to it, and subject to the laws and regulations which the sovereign may think proper to prescribe. A 31

"Ibid. See The Three Friends, 166 U.S. 1. u

^See Schwartenberger, Manual of International Law, pp. 24-27. See U.S. v. The Nancy, 3 Waah. D C . 287. M

"Ibid.

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dependency, IB said to be distinguished from a colony in that the former is not necessarily settled by the citizens of the sovereign or mother State, and from/a possession in that it is held by a title other than that of mere_physical conquest. 38

MANDATES AND TRUST TERRITORIES The mandates were the former territorial possessions of the States defeated in the First World War; they were placed under the control of the League of Nations and the so-called Mandatories. After the Second World War, many of these mandates became trust territories under the supervision of the U N , the Trusteeship Council, and the so called Administering Authorities. The mandates were created to afford a chance for them to be developed economically and socially^By more advanced nations. Upon the other hand, the basic objectives of the trusteeship system are: 39

(a)

to further international peace and security;

(b) to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence; (c) to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and (d) to ensure equal treatment in social, economic, and commercial matters. 10

A trust territory is a qualified or quasi-international personality in the Bense that it has some rights and obligations in the international order; however, the Administering Authority exercises the power of sovereignty (the residual sovereignty is, of course, in the United Nations) over them, although they cannot be ceded to others without the approval of the UN inasmuch as they do not form part of the territory of the Administering Authority.

"Set Block's Law Dictionary, p. 557. "See Art. 22 of the Covenant of the League of Nations. " A r t . 76, U . N . Charter.

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The inhabitants of the trust territories do not become nationals or citizens of the Administering Authorities (though allegiance is required); moreover, they are not generally affected by treaties concluded by the Administering Authorities. It shall be the duty of the Administering Authority to ensure that the trust territory shall play its part in the maintenance of international peace and security. To this end, the Administering Authority may make use of volunteer forces, facilities, and assistance from the trust territory in carrying out the obligations towards the Security Council undertaken in this regard by the Administering Authority, as well as for local defense, and the maintenance of law and order within the trust territory." 41

Under Art. 77 of the UN Charter, the trusteeship system shall apply to the following: (1)

territories now held under a mandate;

(2) territories which may be detached from enemy States as a result of the Second World War; and (3) territories voluntarily placed under the system by States responsible for their administration. Examples of the third group includes: (a)

New Guinea — placed by Austria;

(b)

Western Samoa — placed by New Zealand;

(c)

Tanganyika — placed by Great Britain;

(d) The former Japanese Mandated Islands — placed by the United States. Outside or the Namibia (South-West Africa), only one U . N . trust territory remained, i.e., the U.S. Trust Territory of the Pacific Islands (east of the Philippines). Composed or 2,141 islands and atolls, with about 150,000 inhabitants on 100 of the islands, the latter were later grouped in four (4) districts, namely: 1. 2.

the Northern Mariana Islands; the Marshall Islands;

"See Oppenheim-Lauterpachl, International Law, Vol. 1. " A n 84, U.N. Charter.

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3. 4.

Micronesia; and Palau.

On November 3, 1986, the U.S. government announced, however, that only the Palau would remain under the Trusteeship Agreement. Be it noted that on May 1986, the UN Trusteeship Council concluded that the U.S. had satisfactorily discharged its obligations under the Strategic Trust Agreement and that the trusteeship system in the Northern Marianas, Micronesia, and Marshall Islands was to end. CERTAIN PUBLIC AND POLITICAL COMPANIES AND CORPORATIONS There are twojtinds of corporations: the private and the public. Private corporations usually fall under the domain of Private International Law, particularly, where their rights are involved; however, they are discussed also in Public International Law when in time of war, their property, and other rights are impaired, or when, whether in time of peace or of war, maritime law has been infringed. Public corporations, however, which have delegated political powers assupre a quasi-international status. Notable examples include the following: (1)

the British North Borneo Company;

(2)

the British South Africa Company; and

(3)

the English East Asia Company.

While usually restricted by the functions enumerated in their respective charters, these companies often performed acts not warranted by said charter. Their home governments, however, sanctioned their actuations, and so in time, they more or less were invested with certain powers of sovereigrity — like the power to govern, and the power to enter into anu conclude wars. With reference to the East India Company of England which received its first charter in 1600, the authority to govern — vested in the corporation — was finally taken away and transferred to the English crown by the Act of Aug. 2, 1858."

4

'See Wilson and Tucker, International Law, pp. 84-65.

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INTERNATIONAL ADMINISTRATIVE BODIES Oppenheim is authority for the opinion that international administrative bodies are vested with international personality insofar as they are beyond the control and authority of any particular State, including the region in which the seat of the organization may be situated. * International organizations such as the former League of Nations and the present United Nations are, of course, in their own way, International Persons* The main organs of the League of Nations were the Assembly Jwhich consisted of the representatives of all the member-States) and the Council (a more select group composed of delegates of the Principal Allied and Associated Powers — namely, the British Empire, France, Italy and Japan which were the permanent members of the Council — and the representatives of four other members picked by the Assembly). While the United States was supposed to be included in this select group it failed to ratify the peace treaties, and, therefore, did not actually become a member of the Council. -'' The present United Nations was established independently of the peace treaties ending World War II and its main purpose is the preservation of world peace. The Charter of the U N , establishing the Organization, was signed in San Francisco on June 26, 1945. 4

4

Aside from the U N , there are today three (3) groups of International Organizations: (1) Inter-governmental bodies, including the specialized agencies of the UN Examples: (a)

F A O — Food and Agricultural Organization

(b)

ILO — International Labor Organization

(c)

I M F — International Monetary Fund

(d) U N E S C O — United Nations Educational, Scientific and Cultural Organization ( e ) U N I C E F — United Nations International Children's Emergency Fund

"SEE OPPENHEIM-LAULERPACHL. VOL. I , International Lair. SEC. 289 " S E E ARTS. 2 AND 3 OR THE COVENANT OR THE LEAGUE OF NATIONS; THE COVENANT, IN TURN, FORMED THE FIRST PART OF THE PEACE TREATIES OF VERSAILLES.

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(2)

(0

W H O -- World Health Organization

g)

mo — International

(h)

UPU

(i)

TAB — Technical Assistance Board

Refugee Organization

-- Universal Postal Union

li>

ITU — International Telecommunications Union

(k)

G A T T - — General Agreement on Tariffs and Trade

'Other inter-governmental bodies

' Examples: (a)

Permanent Court of Arbitration ( P C A )

(b)

International Criminal Police Commission (ICPC)

- (c)

Bank of International Settlements (BIS)

(3)^,.Non-governmental international bodies Examples: (a)

ICJ — International Commission of Jurists

(b)

C F M — Christian Family Movement

(c)

M R A — Moral Re-Armament

(d)

ICC — International Chamber of Commerce

(e)

RI — Rotary International

The Constitutions of the International Monetary Fund and the International Bank for Reconstruction and Development (World Bank ) were embodied in the Articles of Agreement drawn up at the United Nations Monetary Fund and Financial Conference at Bretton Woods, N . H . , in July, 1944. The purpose is to facilitate the development of a multilateral world trading system by promoting exchange stability and making foreign exchange available to members in suitable circumstances and under adequate safeguards. ** 46

4

"•Encyclopedia Britannica, Vol. 12. pp. 526-527. "^Edgardo C. Paras, Jr., "The World Bank in the 90'H," The Business Star, July 19, 1991, p. 4.

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IMF (Exchange Controls) Mark Dallal v. The Islamic Republic of Iran A WD 53-149-1 (Iran-U.S. Claims Tribunal, The Hague, Jun. 10, 1963) Claimant, Mark Dallal, filed a claim in the Iran-United States Claims Tribunal against respondents, the Islamic Republic of Iran and Bank Mellat, seeking the face amount of two checks denominated in U.S. currency, which had been drawn by the International Bank of Iran (now Bank Mellat) on Chase Manhattan Bank of New York and which had been dishonored upon presentation for insufficient funds. Respondents sought to dismiss the claim, contending, first, that the checks were null and void because their issuance violated Iranian exchange control regulations, and, second, that the circumstances under which the checks were issued indicated that the checks formed part of a fraudulent act aimed at circumventing the Iranian regulations. In response, claimant challenged the validity of the exchange controls at issue and denied, in any event, that the issuance of the checks violated any valid currency regulations in Iran. Claimant further contended that New York law governed payment of the checks and that, as the holder of negotiable instruments, he was entitled under New York law to recover on them unless respondents carried the burden of proving a defense, which they had failed to do. In addition, claimant argued that if recovery were denied, respondents would be unjustly enriched,. In a decision written by Judge Lagergren, Chairman of Chamber One, the Tribunal held: that in light of relevant provisions of the Articles of Agreement of the International Monetary Fund ( I M F ) , the Tribunal would not enforce payment on the checks, since such payment would constitute a violation of valid exchange control regulations of Iran. N.B.: Notwithstanding the laudable objectives of the International Monetary Fund ( I M F ) in fostering international monetary cooperation and promoting a stable monetary order, said regulatory and financing institution is not bereft of legal problems involving its Articles of Agreement. The case of Estate of Stoich v. Kolovrat (220 Or. 448, 349 P. 2d 255 [19601, rev'd, 366 U.S. 187, Kolovrat v. Oregon [1961] gave due cognizance to the fact that the establishment of the IMF (as well as that of the World Bank) was motivated by the then prevailing international apprehension that the world economy would

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suffer seriously as an aftermath of World War II unlesa some devices to stabilize it were quickly undertaken by the world powers. This thought was clearly affirmed by Article I of the Bretton Woods (IMF) Agreement, wherein its controlling purposes and objectives are stated. In accordance with the promotion of international economic relations, already spelled out as one of the IMF's objectives, the United States Supreme Court enunciated the view that foreign exchange regulations are not against public policy if they are used as a defense for the enforcement of a contract which was entered into and was to be performed in a foreign country. (Banco de Brasil, S.A. v. A.C. Israel Commodity Co. <376 U.S. 906 [1964]). Clearly, the Bretton Woods Agreement prevents the courts from enforcing illegal transactions in the field of international currency exchange. But where true governmental interest of a friendly nation, such as that foreign nation's currency reserves, is involved, a national policy of cooperation with Bretton Woods signatories is furthered by providing a State forum for suit. As ruled in Banco Frances e Brasiliero, S.A. v. Doe (423 U.S. 867 119751), even assuming the continuing validity of conflicts of law rule that one State does not enforce revenue laws of another and correctness of characterization of currency exchange regulations as revenue laws, U.S. membership in the IMF made it inappropriate for New York courts to refuse to entertain the claim by a Brazilian bank for fraud, deceit and conspiracy to defraud and deceive in which the bank alleged that "John Doe" defendants violated Philippine currency regulations by submitting false applications, in reliance upon which the bank exchanged Brazilian cruzeiros into travelers' checks totalling more than $1 million. In other words, U.S. membership in the IMF makes it impossible to conclude that currency control laws of other member-States are offensive to New York public policy BO as to preclude suit in tort by a private party. Thus, conduct reasonably necessary to protect foreign exchange resources of a country does not offend against international law. The control of national currency and of foreign exchange iB an essential governmental function. The State which coins money possesses the power to prevent its outflow, and some reasoning is applicable to the imposition of restraints upon transactions involving foreign exchange.

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For that matter, the Act of State doctrine is not limited to situations in which the foreign act is committed in a manner colorably valid under foreign law. It makes no difference whether the foreign act is under local law, partially or wholly, technically or fundamentally, illegal, but so long as the act is the act of the foreign sovereign, it matters not how grossly the sovereign has transgressed its own laws. It is immaterial what form an Act of State takes — whether it be an expropriation or confiscation, a conversion or a breach of contract — as long as such act is committed by the foreign government within its own territory. As held thus in French v. Banco National de Cuba (295 N . Y . S 2d 433 119681), regardless of whether the "Decision" issued by the Currency Stabilization Fund of Cuba prohibiting the exchange of pesos for American dollars complied with the internal Cuban standards for regularity, since the Cuban bank, also an agency of the Cuban government, refused to exchange pesos for dollars as certificates had been required, the breach of contract of which the certificate holder complained of resulted from and constituted an Act of State. In J. Zeeri and Sons v. Grinlays Bank (Uganda), Ltd.(423 U.S. 866 [1975]), it was held that the Agreement (which covered only exchange contracts, i.e., not all contracts affecting exchange resources) was held inapplicable by an Ugandan bank in favor of Israeli partnership. In this case, defendants urge that enforcement of the letter of credit ( L C ) contract would violate the foreign exchange laws of Uganda in disregard of a treaty, on the ground that both Uganda and the United States, respectively, are signatories to the Agreement and which, in relevant part under Art. V I I I , Sec. 2(b) provides: "Exchange contracts which involve the currency of any member and which are contrary to the exchange contract regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member." Contrary to defendants' position, the Agreement, even when read in its broadest sense, fails to bring the LC within its scope, since an LC is not deemed an exchange contract. The multiple exchange rate system in effect in Uruguay, as ruled in Energetic Worsted Corp. v. U.S. (224 F. Supp. 606, Customs Court 11963]), did not encounter any objection from the I M F

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standpoint since the Agreement allowed a five-year period for unification of exchange rates and Uruguay had not yet fixed the parity of the currency. It was also noted in the aforecited case that a communication from the IMF established the parities between P151.90 and P190 per $100 and that the exchange rates envisaged by the Uruguay government's decree were not inconsistent therewith. It has been recognized internationally that multiple currency practices can, in certain circumstances, constitute a subsidy to exports which may be met by countervailing duties. As such, the Court was correct in holding that as per evidence disclosed, the multiple exchange rate system in effect in Uruguay at the time of exportation of wool tops conferred a bounty or grant on wool tops as to require the imposition of countervailing duties. As a point of clarification, multiple currency practices are arrangements by which different exchanges rates exist for a country's currency according to the type of transaction for which it is to be used. For example, the number of units of the member's currency which importers are required to pay per U.S. dollar may vary as to the kind of goods to be imported or services to be brought, or accorded to the currency in which payment is made. Frequently, multiple rates are used to offer more favorable terms to importers of necessities than to importers of luxuries. Multiple currency practices may be introduced only with I M F approval, however. As a member-country of the International Monetary Fund (IMF), one economic decision which the Philippine government may invariably plead as a treaty defense against a creditor's suit is the Bretton Woods Agreement (otherwise known as the Fund Agreement). Article VIII, Section 2(a) of the Fund Agreement provides that a member blessed with the seal of approval by the I M F may "imposed restrictions on the making of payments for current international transactions." "Payments for current transactions," as denned under Article XXX of the Fund Agreement, include payments which are not for the purpose of transferring capital and without any limitation at that: (1) all payments due in connection with foreign trade, other current business, including services, and normal Bhort-term banking and credit facilities; (2) payments due as interest on loans and as net income from other investments; (3) payments of moderate

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amount Tor amortization of loans or for depreciation of direct investments. The Fund may, after consultation with the members concerned, determine whether certain specified transactions are to be considered current transactions or capital transactions. In other words, while a member could adopt and impose restrictions on capital transactions without the IMF's approval, the former could not impose restrictions on current transactions without the the latter*s approval. Thus, a party invoking Article VIII, Section 2(b) or the "exchange contracts clause" (that may affect litigations that are now, or will in the future be, before courts in the United States) can hurdle the burden of showing that a currency restriction is maintained or imposed consistently with the Fund Agreement only by showing that: ( i ) the currency-restriction only affects capital transfers and, therefore, no I M F approval is required or; (ii) that a restriction on current payments is involved but that the I M F had approved the measure. Based on the foregoing, if no restriction on the making of payments or transfers for current international transactions is involved, then the party invoking an exchange control measure (e.g., exchange surrender requirement of a regulation that controls capital transfers) need not have to prove that these measures are maintained or posed consistently with the Fund Agreement. WHEN THE INTERNATIONAL' (STANDING BY ITSELF) IS USED The "International" (standing by itself) is used to designate international organizations devoted to the transformation of the "capitalist" world order into a "socialist" world order: hence, the terms "The First International" (1864-1872) (this was under the theoretical and organizational guidance of Marx and Engels); "The Second International" (1889-1920) (this was formed by a Congress in Paris in 1899 — and leading figures included Bebel, Guesde, Bernstein and Lenin); T h e Third International," commonly referred to as the Communist International or the Comintern (founded in Moscow in March, 1919 — among the leaders were Trotsky and Stalin)." 7

The Order of Malta has been held to be possessed of an international personality — by the Italian Court of Cassation in

" S e e Encyclopedia Britannica, Vol. 12, pp. 509-512.

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1935. This Order is reputedly the oldest order of chivalry, obtaining Malta (of the former Kingdom of Sicily) as early as 1530. Even when the Order eventually lost its sovereignty over Malta, it continued to accredit legations and exchange embassies with several countries (at least seventeen of them). Its Grand Master and his place in Rome may be said to have sovereign status. The Court of Cassation referred to, stated in its decision that "it is impossible to deny to other international collective units, a limited capacity of acting internationally within the ambit of the actual exercise of their own functions, with the resulting international juridical personality and capacity which is its necessary and natural corollary." (Nanni v. Pace and the Sovereign Order of Malta, Ann. Dig. 1935-37, Case No. 2). The International Commission of Jurists is not a regional agency of the United Nations. It is a non-governmental organization (NGO) which has a consultative Status, Category "B" with the United Nations Economic and Social Council. The Commission seeks to foster understanding of and respect for "The Rule of Law." Said Commission understands the "Rule of Law" in the following sense: "The principles, institutions, and procedures, not always identical, but broadly similar, which the experience and traditions of lawyers in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary government and to enable him to enjoy the dignity of man." The "Rule of Law" was expressly recognized in the Declaration of Delhi (January 10, 1959) of the International Congress of Jurists (assembled in New Delhi under the aegis of the International Commission of Jurists)." The X V I Law Conference of the World held in Manila (Oct. 25-29, 1993) had for its theme, "The Rule of Law in A Changing World," with emphasis on international economic and monetary laws, and health care.

INTERNATIONAL ECONOMIC AND MONETARY LAWS "International Economic Law" consists of a number of growing international economic doctrines, e.g., the promotion by international action of policies conducive to a balanced economic growth, and the obligation on a State, in technical economic terms, to keep

4

*See Journal of the ICJ. Vol. I I , No. 1, Spring-Summer, 1959.

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demand at an appropriate level and to graduate national expenditure in line with growth of production, that may yet be translated into ruling principles of international law. (See Series I of Article FV of the IMF Articles of Agreement, as amended; see also J.H. Jackson, Legal Problems of International Economic Relations: Cases, Materials and Text [1977] and D. Carreau, P. Juillard, and T. Flory, Droit International Economique [1978]). "International Monetary Law" consists of complex international rules and guidelines which have been created largely upon the basis of traditional banking and trading practices, in an effort to ensure fair and efficient methods of conducting international financial transactions, to promote international monetary cooperation, and to maintain an orderly exchange system. It includes, for example, the following: a. the rules and principles embodied in the Articles of Agreement of the International Monetary Fund ( I M F ) , referred to above, the principal object of which is to establish a system for stabilizing and regulating in an orderly manner international currency relationships; b. the provisions of the Articles of Agreement of the Fund and of the General Agreement of Tariffs and Trade (GATT), under which restrictions on trade and current payments are generally allowable only in situations of balanceof-payments difficulties and are subjected to international control; c. the provisions of the Articles of Agreement of the Fund, and related arrangements and practices, designed to mitigate the effect of exchange controls and restrictions, and so far as possible, without making this an absolute goal to foster the interconvertibility of currencies; and d. the de facto arrangement implenting the abovementioned rules, and serving to preserve monetary stability. (See Sir Joseph Gold, Legal and International Aspects of the International Monetary System: Selected Essays [1979]; see also K.W. Ryan, International Trade Law [1976]). 'SOFT L A W IN INTERNATIONAL LAW While gaining prominence for the past decade or two, the precise meaning of what is "soft law" in international law is still debated.

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In a aeries of lectures delivered by Professor Ignaz SeidlHohenveldern at the Hague Academy of International Law in 1979, he describes international economic "soft law" as a concept applied to economic affairs. In Seidl-Hohenveldem's discussion, the distinctive characteristic of soft law, at least in relation to economic matters, appears to be in the intended vagueness of the obligations that it imposes or the weakness of its commands. This kind of law can be contained in treaties or in other instruments, whether or not adopted under the authority of treaties that show the softness of their context by such titles as "guidelines" or "declaration of principles." The essential ingredient of soft law is an expectatioin that the States accepting these instruments will take their context seriously and will give them some measure of respect. Certain other elements are postulated. First, a common intent is implicit in the soft law as formulated, and it is this commont intent, when elucidated, that iB to be respected. Second, the legitimacy of the soft law as promulgated is not challenged. Third, soft law is not deprived of its quality as law because failure to observe it is not in itself a breach of obligation. Fourth, conduct that respects soft law cannot be deemed invalid. Notwithstanding the usefulness of soft law as a contribution to the growth of international law that the application of soft law can produce over time an accretion of firm law, it must be acknowledged that circumstances can force a retreat from firm law, and then soft law may be the only alternative to anarchy. The law relating to exchange arrangements iB an example of this development. What is particularly valuable is that a concept of soft law in economic matters can be helpful in understanding the present international monetary system. Seidl-Hohenveldern is aware that 6oft law governs at least some of the interstate relationships that constitute the international monetary system, but most of the material he cites relates to other international economic relationships. If one is predisposed to examine in more detail the soft law that applies to exchange arrangements and exchange rates in the international monetary Bystem and some of the consequences of the softness of that law, he will come to the inevitable conclusion that soft law cannot be defined Bimply as a genua of law. (N.B.:

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The exchange rate for a country's currency is o n e o f t h e moBt important prices in the economy of a country. At the same time, the exchange rate is a relationship with the economies of other countries). In lieu of this, Borne examples of soft law may be drawn, particulary from the Articles of Agreement of the International Monetary Fund ( I M F ) . Thus, Article IV of the Fund Agreement provides at least four cases of soft provisions: One. The Fund can make recommendations to its members but without the power to insist that the recommendations are binding. Two. The Fund is authorized to adopt "specific principles for the guidance of all members" with respect to their exchange rate policies. Three. The conduct required of a member is expressed not as an obligation to achieve a specified objective but as an obligation to make an effort to achieve an objective. Four. The character of an obligation may make it impossible to recognize by means of objective criteria that a breach of the obligation is occurring. By and large, therefore, the Fund has authority to develop the present substantive law of exchange arrangements in various ways, even though some of the developments would continue to be soft law. To illustrate, the Fund can adapt specific principles for the guidance of members' exchange rate policies and can recommend general exchange arrangements for the decisions of either kind would give greater precisiion to the Fund's functions of surveillance. Sir Joseph Gold, formerly the general counsel and director of the legal department, and now senior consultant of the IMF, held the view that "the Fund can decide to specify the conduct it expect6 of members under their obligation to collaborate with it and with other members; the experience of the past shows that decisions of this kind under general obligations of collaboration can have great weight. Even when the decisions are not formulated as obligations, members tend to consider themselves bound to comply with the decisions. In addition to these powers, the Fund can decide to call into existence the par value sytem that is codified in Schedule C."

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Incidentally, two relatively recent development have occurred thai are relevant to the discussion of soft law of exchange arrangements. The report of the working group on exchange market intervention commissioned at the Versailles summit became available and was the subject of a statement, issued on April 29, 1983, by the summit finance ministers, centra] bank governors, and representatives of the European Community. The final paragraph of the statement iB as folows: "Under present circumstances, the role of intervention can only be limited. Intervention can be useful to counter disorderly market conditions and to reduce shortterm volatility. Intervention may also on occasion express an attitude toward exchange markets. Intervention will normally be useful only when complementing and supporting other policies. We are agreed on the need for closer consultations on policies and market conditions and, while retaining our freedom to operate independently, are willing to undertake coordinated intervention in instances where it is agreed that such intervention would be helpful." The communique issued on May 30, 1983 at the Williamsburg summit contains the following paragraphs: (a) The consultation process initiated at Versailles will be enhanced to promote convergence of economic performance in our economies and greater stability of exchange rates, on the lines indicated in an annex to this statement. We agree to pursue closer consultations on policies affecting exchange markets and on markets conditions. While retaining our freedom to operate independently, we are willing to undertake coordinated intervention in exchange markets in an instance where it is agreed that such intervention would be helpful; (b) We have invited ministers of finance, in consultation with the managing director of the I M F , to define the conditions for improving the international monetary system and to consider the part which might in due course, be played in this process by a high-level international monetary conference; and (c) Exchange Rate Policy. We will improve consultations, policy convergence and international cooperation to help stabilize exchange markets." As we now approach the threshhold of 1994, we can readily conclude that while these eleven-year old statements do not change the law on exchange arrangements or the need to strengthen it, the communique, nonetheless, gives some hope that a strength-

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ening of t h e law or of practice under it may be undertaken in the future, e.g., liberalization of foreign exchange regulations in t h e Philippines. WHO AND AIDS In a report, entitled "International Travel Restrictions and the AIDS Epidemic," the American Journal of International Law (Vol. 81, 1987, pp. 230-235), Baid: "AIDS is truly an international phenomenon, with cases now reported on every continent. To combat the AIDS epidemic, the nations of the world may be reverting to a pattern of quarantine and restrictions on international travel. For example, on April 23, 1986, t h e Federal Register gave notice of a rule proposed by the Center for Disease Control of the United States Public Health Service that, if enacted, will add AIDS to the list of seven diseases that provide grounds for exclusion of aliens. This action would allow the U.S. Department of State to deny visas and the Immigration and Naturalization Service to deny admission to aliens subject to medical examination (generally immigrants and refugees) who are found to have AIDS. Although seemingly innocuous, the proposed regulation was initially seen by gay rights groups as an instrument that could potentially be used to harass homosexuals and other high-risk groups seeking entry to the United States. The proposed regulation also contrast with the U.S. Public Health Service's domestic strategy for coping with A I D S , which emphasizes education rather than quarantine as the principal means of controlling the disease. [N.B.: U.S. baskeball superstar Earvin "Magic" Johnson, who announced in November 1991 that he was infected with AIDS, has helped to heighten popular awarpnpss of the risks.]. "Claims to restrict travel in order to combat AIDS conflict with the policies of the World Health Organization (WHO). A number of member-States sought the advice of the W H O on requiring persons seeking to enter their countries to obtain certificates guaranteeing that they were free from AIDS, AIDS-related complex, or HIV (human immuno-deficiency virus) infection. The matter was considered at a meeting of Directors of W H O Collaborating Centers held in Geneva in December 1985. It was determined at this meeting that test-

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tag of international travelers and certification were not warranted. Inapite of the WHO'B efforts to maintain freedom of travel, these developments could provoke the passage of a new international norm respecting restrictions on international travel. y A 'RULE OF L A W STATE The following are the basic principles, all of which must exist together in a Rule of Law State: 1. The principle of the separation of powers applicable not only to the Legislative, the Executive, and the Judiciary, but also to all points where total power is concentrated in one place; IT The principle of the independence of judges, both from the Executive and from all other influences outside the law;3^The principle that all collective powers, particularly that of legislation and administration, must conform to the basic rights and freedoms which protect the individual citizen; principle of the legality of administrative action; ST Judicial review of legislation and administration by independent judges; and 6 ^ T h e existence of a body of lawyers independent of collective powers and pledged to the idea of the Rule of Law State. (Hans Klecatsky, Judge of the Administrative Code of Austria, "Legality of Administrative Action." Journal of the International Commission of Jurists, Vol. IV, No. 2, Summer 1963, p. 206). In the XVIth World Law Conference in Manila (Oct. 25-29, 1993), it was the consensus that "the Rule thru Law is a vital and functional system that can be applied to every international concern in search of a fair and reasonable solution. It is the very core of what should govern the changes prompted by modern day realities caused by rapid industrialization and advancements in science and technology." JURIDICAL PERSONALITY OF THE UNITED NATIONS The "United Nations" possesses juridical personality. It has the capacity: (1) Mi contract; (2) lib acquire and dispose of immovable and movable property; and

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(3)

to institute legal proceedings.

49

The International Court of Juetice has ruled in an Advisory Opinion (sought by the General Assembly) that the UN is an international person (but not a State — for it lacks certain constituents elements of a State such as territory and people — and certainly not possessed of identical rights and duties as those accorded generally to States; neither may the UN be referred to as a Super (or Mega) State, whatever said term may signify, but as an international person, it may bring an international claim (for damages caused a private person, serving as an agent of the U N ) against both UN members and non-members — on the theory that after all, the UN members represent the vast majority of the members of the international community.™

THE C O U N T BERNADOTTE CASE (Advisory Opinion of the International Court of Justice on "Reparation F o r Injuries Suffered in the Service of the United Nations") 43 A.J.I.L, 589 (1949) FACTS: While he was working as part of a United Nations Commission in Israel, Count Bernadotte was assassinated. The General Assembly requested the International Court of Justice to render an advisory opinion as to whether or not the UN can bring an international claim (for damages) against the government (whether de facto or de jure) responsible for the killing. HELD: Yes, the UN can bring such a claim. Competence to bring an international claim is the capacity to resort to the customary methods recognized by international law for the establishment, the presentation, and the settlement of claims. Among these methods may be mentioned: (1)

protest;

(2)

request for an inquiry;

" A r l . 1, Convention on the Privileges and Immunities of the United Nations. Approved by the General Assembly, Feb. 13, 1946, 1 United Nations Treatv Series. 15. ^Advisory Opinion of the International Court or Justice on Reparation Tor Injuries Suffered in the Service of the United Nations. A3 A.J.I.L. 589 (19-19).

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negotiation; and

(4) and request for submission to an arbitral tribunal or to the World Court insofar as this may be authorized by its Statute. The UN was clearly intended by the Charter to exercise and enjoy (and is, in fact, exercising and enjoying) functions, and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the necessary competence. Accordingly, the Court has come to the conclusion that the UN is an international person, and may bring an international claim even against a non-member, considering that the UN represents the vast majority of the members of the global society.

JURIDICAL PERSONALITY OF THE SPECIALIZED AGENCIES OF THE UN Just as the UN itself has juridical personality (with all its attendant rights), so also, have juridical personalities the various specialized agencies of the U N . 5 1

— oOo —

"Convention on the Privilege* and Immunities of Specialiied Agencies, Nov 21, 1947, 33 United Nations Treaty Series 261.

Chapter 4 A SOVEREIGN STATE: ITS ELEMENTS OR ATTRIBUTES AND ITS VARIOUS RIGHTS

STATE DEFINED The most important subject of Public International Law is the sovereign State. A definition, thereof, is thus imperative. A - ^ State is a group of people, more or less numerous, capable of procreation and of self-defense, living on a definite territory (which must be on land, and not the sea), possessed of a government to which the inhabitants render habitual obedience, and such independence from external control as would enable it to conduct its external and internal affairs without unreasonable intervention from other groups. Brierly speaks of a State as "an institution, i.e., of relations which men establish among themselves as a means of securing certain objects, of which the most fundamental is a system of order within which their activities can be carried on."' ELEMENTS OR ATTRIBUTES OF A STATE As will be gleaned from our definition of a State, a State must possess certain elements, requisites, or attributes. The majority viewpoint lists down four of them; the minority opinion enumerates at least six. Majority School of Thought: The elements, requisites, or attributes of a State are the following. (1)

a group of people;

'Brierly, The Law of Nations, p. 111. 118

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(2)

definite territory;

(3) government; (4) independence. Minority View: In addition to the four enumerated by the Majority, the Minority view insists on two more: (5)

possession of a sufficient degree of civilization;

(6)

recognition by the Family of Nations.

2

EXPLANATION OF THE ELEMENTS OR ATTRIBUTES (1) People — They are human beings, male and female, who live together for a common end, notwithstanding differences r,),^ in race, color, religion, or culture. They must be sufficiently numerous to assure continued existence as a collective body otherof the union may be frustrated. Pirates, even if banded together, are in danger of incessant attempts at extermination because they are international outlaws; hence their society cannot be deemed a State, in any sense of the term. 3

(2) Definite Territory — The space on earth occupied by the State must be more or less fixed to settle eventual disputes on jurisdiction: the territorial unity, however, need not be a geographical one; it is sufffcient that it be juristic (recognized by law) in character. Hence the territory may be: "integrated territory" (geographically united) or "dismembered territory" (geographically disunited — as in the case of a State with colonies beyond the seas). As ably stated by Han6 Kelsen: T h e territory of the States iB a space within which the acts of the State, and specially its coercive acts, are allowed by general international law to be carried out, a space within which the acts of the State may legally be performed. . . The territory of a State is legally nothing but the territorial sphere of validity of the national legal order called a State. . . As an exception, a State may legally perform acts, and specially coercive acts on the territory of another State. This is the case (a) if a State is authorized by particular international

'See Hyde, International Law, Vol. 1, Sec. 7. Sae OppcDheim-Lautcrpacht, Vol. I, International Law, Sec. 84. i

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law, i.e., by a treaty concluded with another State, to perform on this territory certain acts determined in the treaty; and (b) if a State in time of war occupies a part of the territory of the enemy." 4

The territory may be large or small: this is of no consequence; whaL is vital is that it be fixed or delimited — hence nomads or roaming tribes cannot constitute a State for lack of a definite territory. The territory must be land (with the sea) but certainly not on the sea alone — hence a State cannot have as its home a vessel or a group of vessels, whether public or private. Upon the other hand, changes in the original territory (as by an annexation of other places) cannot ordinarily affect its status as an international entity. ^ 5

(3) Government — is the mar-hir^ry nr thp instrument by which the power in a State expresses its will and exercises i,ts functions; it is the framework of political institutions, departments, ann^ofjices, by means of yhirh thfl PYPnitiyp_jiirliriaJ legislative and_a.dministrative business of the State_is carried on. Many sovereign States today have a republican government, i.e., one in which the powers of sovereignty are vested in the people, either directly, or thru representatives chosen by the people,! to whom those powers are specially delegated. r

6

(4) Independence — is freedom from external control i « the conduct of one's external and internal affairs: thus^. territory posjse^sejLaridj:ontrolled by a State cannot be deemed State by itself; thus also, the moment a State becomes legally subject to the national law of another State, the former ceases to be one. In view of their lack of "independence," the "component States'* of a Federal Union or State cease to be States in the sense of international law. 3

The Minority viewpoint, as has already been intimated, adds two (2) more requisites which are hereinbelow discussed: (1) Possession of a Sufficient Degree of Civilization

'Hans Kelsen, Principles of International Law, pp. 207-209. See Fen wick, International Law, p. 105. See Black. Constitutional Law (3rd Ed.), p. 309; In re Duncan, 139 U.S. 449; Art. I I . Sec. 1 of the 1987 Phil. Constitution provides: T h e Philippines is a democratic and republican state. Sovereignty resides in the people and all gov. ernment authority emanates from them." s

B

1

A SOVEREIGN STATE: ITS ELEMENTS OR ATTRIBUTES 121 A N D ITS VARIOUS RIGHTS

According to this requisite, unless a so-called "State" has attained a degree of civilization compatible with its expected duties in the international order, it cannot in the meantime be considered a State. Statehood is then postulated on the ability of a territory to respect universally accepted principles of international law. It has been pointed out, however, that the outstanding difficulty of considering this to be an essential element of a State is the question of characterization, namely, which are the States competent enough to judge the morality and the culture of another group of people? 7

(2) Recognition by the Family of Nations To be a member of a small social group, an individual, no matter how presentable, has to be accepted, or else he becomes an intruder. Thus, to be a member of the international community, it is argued, a "State" must be "recognized" by the "family of nations." Two serious objections to this "requisite" have been pointed out: firstly, recognition, as practised today, has become principally a matter of political convenience and diplomatic discretion; secondly, even if a "State" has not been recognized by say the United Nations Organization, this should not mean that it is devoid of social responsibilities in the international order; in other words, an unrecognized State still has international duties — and duties necessarily presuppose the existence of rights (for without rights there are numerous duties which cannot be performed) — resultantly, if an unrecognized State still has "international rights and international duties" it is for all legal and practical purposes still a "State," its non-recognition notwithstanding. Query: Is the Vatican or the Holy See a State? Answer: Yes, it would seem that the Vatican or the Holy See is a State, whether we consider the majority or the minority viewpoint on the essential elements of a State: (a) Firstly, there are around 1000 people, almost all of whom are individuals residing therein by virtue of their office; (b> Secondly, there is a definite territory — approximately 100 acres;

'See Hyde. International Law, Vol. 1, pp. 16-17.

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(c) himself;

Thirdly, there is a government — under the Pope

(d) Fourthly, there is independence (it should be noted that the State of the Vatican City was created by the Lateran Treaty of February 1, 1922 between Italy and the Holy See. Under the terms of the Treaty, Italy "recognizes the full ownership, exclusive dominion, and sovereign authority and jurisdiction of the Holy See over the Vatican"). Again, in 1929, the Lateran Treaty recognized the State of the City of the Vatican as a sovereign and independent State. More than 50 years later (July 1987), the independence of the Vatican was upheld when the Italian Court Cassation voided arrest warrants against the senior Vatican bank officials charged with being accessories to fraudulent bankruptcy in the Italian Banco Ambrosiano scandal. The Court held that the 1929 Lateran Treaty protected "central bodies" of the Roman Catholic Church from "every interference" by the Italian government. As of January 1, 1994, over 100 States maintain diplomatic relations with the Vatican (including the Philippines), an undeniable proof of its wide acceptance. (e) Fifthly, no one can question the possession by the Vatican of "a sufficient degree of civilization"; (0 Finally, the Vatican has been recognized by almost all the countries of the world, including Russia. The Vatican City, as a juristic entity, must, however, be distinguished from the Holy Roman Catholic Church. While the former is concerned with material things and occupies a definite territory, the latter is preoccupied with things of the soul and the spirit, and as such, is "tied to no limited territory." However both are subjects of International Law: both have some international rights, the violations of which can amount to international delicts; they enjoy, for instance, the right of legation — the right of diplomatic intercourse — the diplomatic envoy being called the "papal, nuncio." As head of the Catholic Church, the Holy Father may enter into: (1)

ordinary treaties — on behalf of the Vatican City;

(2) special treaties (called concordats) — which regulate ecclesiastical matters.* *See Hans Kelsen, Principles of International Law, pp. 159-161.

A SOVEREIGN STATE: ITS E L E M E N T S OR ATTRIBUTES A N D ITS VARIOUS RIGHTS

While the general purpose of the Vatican City differs from that of ordinary States, there is no question that in this extrabanausic sphere of ours today, there should always be room for the eternal and solid influence that is the Church. [NOTE: — Even before the Holy See became a State, it was already an I N T E R N A T I O N A L PERSON for a very simple reason: international law does not allow any single State to control the Pope in his capacity as head of the Roman Catholic Church, hence he has to be put in a position of international autarky. . . he has to be made an independent subject of international law. (See Hatschek-Manning, An Outline of International Law, 1930, p. 56). With the Lateran Treaty, the Pope became a Chief of State.] THE FUNDAMENTAL RIGHTS OF STATES Traditionalists say that a sovereign State is endowed with certain fundamental rights — rights imposed both by the very nature of international law itself and by the common consent of the States themselves. While there iB semantic disagreement on the exact number and the exact classification of these rights, still the authorities are fairly unanimous in enumerating the following, inter alia, as the fundamental rights of States, insofar as the international legal order is concerned: (1) the right of existence, integrity, and self-preservation (including the right to acquire territories and the right of individual or collective self-defense); (2)

the right of sovereignty and independence;

(3)

the right of equality;

(4)

the right of property and jurisdiction; and

(5)

the right of legation or of diplomatic intercourse.

THE FUNDAMENTAL DUTIES OF STATES (1) As a consequence of right No. 1 — the first duty of a State is to respect the right of other States to the letter's territorial existence and integrity; moreover, every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law; hence a State may not invoke

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provisions in its constitution or its IBWB aB an excuse for failure to perform this duty. (2) As a consequence of right No. 2 — every State has the following duties: (a) to refrain from intervention in the internal or external affairs or any other State; (b) to refrain from fomenting civil strife in the territory of another State, and to prevent the organization within its territory of activities calculated to foment such civil strife; (c) to ensure that conditions prevailing in its territory do not menace international peace and order; (d) to refrain from resorting to war as an instrument of national policy, and to refrain from the threat or use of force against the territorial integrity or political independence of another State, or in any other manner inconsistent with international law and order; ( e ) the duty of refrain from giving assistance to any State which is acting in violation of the duty referred to in (d), or against which the United Nations is taking preventive or enforcement action; (f) the duty to refrain from recognizing territorial acquisition by another State acting in violation of (d). J,3) As a consequence of right No. 3 — every State has the duty to treat all persons under its jurisdiction with respect to their human rights and fundamental freedoms, without distinction as to race, sex, language, or religion. (4) As a consequence of right No. 4 — every State has the d u t / t o respect the property rights (including the territorial, fluvial, and aerial domains) and jurisdictional processes of other States insofar as they do not infringe upon the former's own rights. (5)

As a consequence of right N o . 5 — every State has the

duty: (a) to settle its disputes with other States by peaceful means in such a manner that international peace and security, and justice, are not endangered; and (b) finally, to conduct its relatione with other States in accordance with international law and with the principle that

A SOVEREIGN STATE: ITS E L E M E N T S OR ATTRIBUTES A N D ITS VARIOUS RIGHTS

the sovereignty of each State is subject to the supremacy of international law. 9

CREATING A NEW STATE On May 22, 1992, the United Nations ( U N ) General Assembly admitted three new members — Slovenia, Bosnia and Herzegovina, and Croatia — all of them, in the past, constituent republics of Yugoslavia. Since June 1991, these three republics — as well as Macedonia — have seceded from the Yugoslav federation, which leaves only the two remaining republics to claim the name of Yugoslavia, as well as its rights and international status, including membership in the U N . After the General Assembly admitted the three new members, a question has been propounded relative to the break-up of the structures of a UN member-State as a result of the secession of one or more of its provinces and its ensuing loss of territory and population. Since its establishment, the UN has faced this problem on various occasions. The first occurred in 1947, when British India — an original member of the organization — became independent and was simultaneously partitioned into two States, India and Pakistan. In response to that situation, the UN General Assembly embraced this position: India continued its membership in the U N , unaffected by the loss of territory and population, while Pakistan was admitted as a new member of the UN on Sept. 30, 1947. Similarly, when Bangladesh seceded from Pakistan in 1971, the latter's UN membership remained unaffected by the loss of its eastern province, while Bangladesh applied for membership as a new State and was admitted in 1974. Likewise, in 1961 when Syria seceded from the United Arab Republic ( U A R ) , which had been formed three years before as a result of Syria's merger with Egypt, the UAR's membership in the UN remained unaffected by that secession. Syria, incidentally, resumed its seat without going thru the customary admission procedure, on the theory that, as an original member, it did not require readmission and was merely "resuming" its former status within the organization.

"See Draft Declaration on the Rights and Duties of States, 1949 Yearbook of the International Law Commission, p. 286.

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Most recently, this practice was followed on the disintegration of the Soviet Union: Russia took over the former Soviet seat (including the USSR's permanent seat on the Security Council), while most of the other newly-independent republics applied for membership in the UN and were admitted as new members. Until the summer of 1991, the Soviet Union consisted of 15 republics. On Sept. 6, 1991, the State Council of the Soviet Union released the three Baltic republics (Estonia, Latvia and Lithuania) from its ranks and recognized their independence. They were admitted to the UN on Sept. 17. Following the dissolution of the Soviet Union in December 1991, e i g h t republics ( A z e r b a i j a n , A r m e n i a , Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, and Uzbekistan) applied for UN membership and were admitted on March 2, 1992. Georgia was admitted on July 31, 1992. Belarus and Ukraine were original UN members and consequently did not require admission upon their accession to independence. According to Professor Yehuda Z. Blum of Hebrew University, from the legal point of view, the Yugoslav situation closely resembles the India-Pakistan and Pakistan-Bangladesh situations. If anything, there is greater justification to follow the India-Pakistan practice for Yugoslavia than there was for Russia. In the latter instance, 11 of the of the 12 republics that constituted the Soviet Union at the time of its dissolution met in Alma-Ata, the capital of Kazakhastan, On Dec. 21, 1991, for the purpose of establishing the Commonwealth of Independent States, they formally declared that, [w]ith the establishment of the Commonwealth, the Union of Soviet Socialist Republics ceases to exist," and thus extinguished the Soviet Union as a subject of international law. Consequently, while the takeover by Russia of the former Soviet seat was the only politically practical and viable solution under the circumstances, the correctness of this policy from the legal point of view may well be questioned. This, notwithstanding, that the Russian Republic's territory (17.075 million sq. kms.) constituted 76% of the total territory of 22.4 million sq. kms. or the Soviet Union, and its population (148 million) constituted 51% of the total Soviet population of 288.7 million. If one takes into account that five of the 15 pre-1991 republics of the Soviet Union (namely, Ukraine, Belarus, and the three Baltic republics), with a combined population of 70.1 million and a territory of 986,000 sq. kmB., were already UN members at the time of the Soviet Union's dissolution, Russia's share in the population and territory of the remaining 10 republics rises to almost 68% and almost 80%, reu

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spectively. For, as will be recalled, the Sixth Committee had ruled in 1947 that "the rights and obligations which [a} State possesses as a Member of the UN ceas[e] to exist with its extinction as a legal person internationaly recognized as such." Blum stressed that in contradistinction to the case of Russia, it cannot be reasonably maintained that, as a result of the events that unfolded in Yugoslavia after June 1991, that country ceased to exist as a subject of international law. Following the secession of four of the six constituent republics, the two remaining republics of the old federation have continued to assert the continuity of Yugoslavia, albeit in a shrunken form. On April 27, 1992, this truncated Yugoslavia adopted a new constitution preserving the name of Yugoslavia and its flag (without the red star of the Communist era). The territory of rump Yugoslavia (102,000 sq. kms.) comprises 40% of the territory of the old Yugoslavia and its population (10.5 million) is 45% of that of the old Yugoslavia. Thus, by any objective yardstick — whether factual or legal — it is difficult to deny "the Belgrade authorities" the right to occupy the seat of Yugoslavia at the U N , however reprehensible their policies may seem to some or even the overwhelming majority — of the organization's members. The facts, notwithstanding, UN Charter law and past UN practice, the Security Council, in its Resolution 757 of May 30, 1992, noted that "the claim of the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the UN has not been generally accepted." In its Resolution 777 of Sept. 19, 1992, the Council then "considered" that the State formerly known as the Socialist Federal Republic of Yugoslavia has "ceased to exist" and that the new Yugoslavia "cannot continue automatically the [ U N ] membership" of the old Yugoslavia. The Council, therefore, recommended to the General Assembly that it decide that the new Yugoslavia "should apply for membership in the UN and shall not participate in the work of the General Assembly." On Sept. 22, 1992, the General Assembly, in its Resolution 47/1, by a vote of 127 to 6 (Yugoslavia and five African nations), with 26 abstentions and 20 absences, endorsed the Council's recommendation. Observed Blum: Curiously — and inconsistently — the allegedly non-existent Yugoslavia continues to have its seat (with nameplate) in the General Assembly and the flag continues to fly in front of the UN compound, alongside those of other member-

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States. While Yugoslavia's delegation may not participate in the Assembly's deliberations and voting, it can still attend its meetings. Thus, in effect, Yugoslavia has been suspended from the General Assembly, pending reconsideration of the matter by the Council "before the end of the main part of the 47th session of the General Assembly" (Resolution 47/1, para. 2), in a manner not foreseen by the Charter and in disregard of its Article 5. (Art. 5 provides: 'A Member of the UN against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council.). The procedure resorted to in the instant case clearly plays havoc with the criteria laid down in the wake of the partitioning of India in 1947 and consistently applied ever since — criteria that by and large have served the UN and the international community well over the past decades.

The unification of divided nation-States is a perplexing process for being simply an act that ordinarily cannot be achieved overnight or done summarily. In this age of anxiety, at least four States, belonging to the same Asian region, have made the first step toward realizing unification, namely: China and Taiwan, on the one hand, and North and South Korea, upon the other. A model these States can look up too is that of Germany, a recent vintage. Authors Thomas Mayer and Gunther Thumann, in their treatise Paving the Way for German Unification (Finance and Development, December, 1990), wrote: "On Oct. 3, 1990, the German Democratic Republic (GDR) ceased to exist. [In light of] this unification between the GDR and the Federal Republic of Germany ( F R G ) , [brought into incumbencyl was (at least for a while), a stimulus to growth in Europe and in the rest of the world. Of course, thiB scenario is based on today's perspective provided the appropriate policy decisions are made." Ms. Angela Stent, an associate professor of government at Georgetown University in her The One Germany (Foreign Policy, No. 81, Winter 1990-91), puts its succintly: "The division of Ger-

A SOVEREIGN STATE: ITS ELEMENTS OR ATTRIBUTES A N D ITS VARIOUS RIGHTS

many has ended. But the unification of Germany has only just begun. [W]hat once seemed unattainable became a reality: the swift merger of the two Germanys wth active support from the United States and remarkably little resistance from the Soviet Union." Today, the new Federal Republic, according to Prof. Stent, must redefine its international role even as it tackles the domestic problems of unification. Questions about Germany's evolving world role abound: Will Germany be willing and able to accept the new political responsibilities that come with economic might? Should Germany's partners encourage Germany to assume a more assertive world role? What stake will the new Germany have in a viable Soviet Union? What direction will German foreign policy take now that Germany is united and sovereign? "Ultimately," explains Prof. Stent, "the way Germans view their new world role will depend on how they come to terms with the past. The West Germans have, to a large extent, acknowledged and condemned their Nazi past." The most basic question is how the new Germany will adapt to its future leadership role. As in the case of Japan, it is worth pondering whether it is wise to encourage Germany to become a world power again. No casual decision can be made on such an important subject. But realistically, a unified Germany will have to assume new responsibilities in a world with a considerably weakened Eastern Europe and Soviet Union. If this united Germany succeeds in forging this new identity, then Germany will indeed become a greater power with a major voice in shaping the 21st century. The issue of unification is inextricably linked to negotiation inasmuch as the former's realization is heavily dependent on the letter's success. By and large, therefore, negotiation, according to Associate Justice Florentino P. Feliciano of the Philippine Supreme Court, "implies] the contraposition of claims and interests which are to be adjusted each to the other by agreement." Justice Feliciano ratiocinates: "Negotiation is qualitatively different from unilateral grant of a benefit and from unconditional surrender of a claim. Moreover, negotiations when viewed and conducted as a zero sum game, for instance, involve notions of 'winning and 'losing,' where one sides 'loss,' and tend to stress adversarial competition rather than cooperation and consensus. The losing* side in such negotiations might well regard itself as signing a coerced contract to be eroded by interpretation and in 1

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implementation, and to be renegotiated at the earliest available opportunity." Allow us next to play this "zero-sum" game in the case of the two Chinas by underscoring Justice Felicieno's notion of finally realizing reunification thru the modality of negotiation as a "process )ead[ing] naturally to recognition of the need for an intellectual framework in terms of which the events which negotiators deal with and respond to may be considered and analyzed with some confidence that all factors of substantial significance would be taken into account." Apropos to the issue of China's future reunification, two builtin factors or points of agreement are in order between Taipeh and Beijing: (1) China must be unified; and (2) unification should preferably be achieved peacefully. Beijing's advocacy of peaceful reunification is qualified, however, by its insistence on reserving to itself the right to unify the country by force in the event of an invasion of Taiwan by a foreign power or a unilateral declaration of independence by Taipeh. Analysis will indicate, nonetheless, that Beijing has a very little chance to realize China's unification by military means. Four reasons are put forth by Chang Chen-pang, a research fellow at the Institute of International Relations, thus: One. A seaborne assault is an extremely dangerous military exercise, and something which even Hitler did not dare to undertake against Britain in World War I I . Considering the present State of mainland China's air power, would Beijing dare to attempt such a feat? Two. An attack on Taiwan would be opposed by Chinese the world over. Beijing would have no excuse for such an attack since Taipeh also advocates reunification. Three. It is questionable whether Beijing could assemble the massive resources needed for such a war. Four. If Beijing were to use force against Taiwan, it would definitely have to face Western sanctions. Surely, the lesson of the June 4, 1989 Tiananmen Square massacre certainly cannot be easily forgotten. Moreover, an armed invasion of Taiwan would turn the island into a wasteland and the invader would have to bear the political burden of dealing with the fierce resistance of the island's 21 million people and the economic burden of rebuilding its sabotaged industrial base. At this point in time, it is difficult to say how reunification can be brought about by peaceful means, although Chang Chen-

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pang's suggestion is clear enough: "Some guidance may be obtained by the experience of German unification. Although there were many reasons why Germany was able to achieve reunification in the short space of less than one year, one decisive factor was East Germany's rapid democratization. Currently, Taiwan is moving rapidly toward democracy. If the mainland were to do the same, the two sides could then get down to talks on reunification based on democratic means and the problems involved would be much easier to solve. By proposing the institution of democratic reforms on the mainland as a condition for government-to-govemment negotiations, . . . solving the reunification issue . . . [may be achieved]." THE TIANANMEN SQUARE MASSACRE AND THE QUESTION OF HONGKONG Minus the just-concluded Gulf war, there have been several significant events that rocked international relations. Among these include, inter alia: the Tiananmen Square massacre and the Hongkong model for reunification. On Sept. 26, 1984, the United Kingdom ( U K ) and the People's Republic of China ( P R O C ) initialed a "Joint Declaration on the Question of Hongkong." The joint declaration spelled out in detail the PROC's policy toward Hongkong (a longtime British colony), the post-1977 Hongkong regime and its international relations. Some highlights of the Declaration, include inter alia: One. After 1977, Hongkong will become a Special Administrative Region of the PROC under Article 31 of the PROC Constitution. It will enjoy a high degree of autonomy, except in foreign and defense affairs. Two. Hongkong will be vested with executive, legislative and independent judicial power, including that of final adjudication. Three. Hongkong's chief executive will be appointed by the PROC after elections or consultations in Hongkong. The government of Hongkong will be composed of local people. Four. Hongkong will maintain the capitalist economic and trade systems for 50 years after 1977.

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Five. The existing social and economic system will remain unchanged. Freedoms of speech, of movement, of the press, of assembly, to strike, of religion, and others will be protected by law. Similarly, private property rights will be protected by law. Six. Apart from displaying the national flag and national emblem of the PROC, Hongkong may use a regional flag and emblem of its own. Seven. Hongkong may participate in relevant international organizations and international trade agreements. It may establish official and semi-official economic and trade missions in foreign countries, using the name "Hongkong, China" to maintain and develop relations and to conclude and implement international organizations in appropriate fields. Eight. The PROC defense force stationed in Hongkong shall not interfere in the internal affairs of Hongkong, and the expenditures for these military forces shall be borne by the PROC's Central People's Government. Be it noted that from the PROC's point or view, this agreement is an example of successful implementation of the "one country, two systems" policy advocated by Deng Xiaoping to serve as the basis for incorporating Taiwan into the PROC. (See Hungdah Chiu, "Recent Chinese Communist Policy Toward Taiwan and the Prospect for Unification," Issues and Studies, Vol. 27, N o . 1, January 1991, pp. 15-16). On March 12, 1993, a bill was filed by Hongkong Governor Chris Patten aimed at widening the electoral franchise in the territory before China's takeover in 1997. The bill stipulates that all members of the district boards will be directly elected, abolishing the previous appointments to half of the seats on the boards. China, which has called off all talks with London since March. 12, has warned that if Patten submits his bill to the Legislative Council, then negotiations will be impossible, and it will be forced to ?et up a shadow government in the transition to 1997. Nearly half the members of the colony's local district boards (a total of 131 out of the 274 members on Hongkong's 19 local government bodies) petitioned Patten not to submit his bill. The petitioners said that only thru Sino-British negotiations could the political controversy be solved, calling cooperation "vital for prosperity and stability in Hongkong." But as Patten has always insisted, "my only concern is to do what is Hongkong's best interest." (Asiau-eek.

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"High Noon: Mr. Patten Is Risking Hongkong's Interests for BriUint. Oct. 20, 1993, pp. 19-21). Recall that on June 4, 1989, when Chinese students were exercising their constitutional rights of freedom of speech and assembly, demonstration was held at Tiananmen square in Beijing. Irked, the Chinese Communist government ordered its military forces to use tanks and machine guns to massacre the students, resulting in thousands of casualties. After this tragedy, the PROC engaged in a large-scale disinformation campaign to distort the facts, claiming at first that not a single student was killed and then saying only a few students were killed. This atrocity sent shock waves all over the world and further proving, from the Republic of China's (Taiwan) point of view, that the Chinese Communists are totally unreliable. Soon after the massacre, Chinese Communist Party General Secretary Shao Ziyang (Chao-Tzuyang) was removed from power and the Chinese mainland entered into a period of political and economic instability. PREVIEW OF THE SUCCEEDING CHAPTERS The succeeding chapters of this treatise will deal with: (1) the nature of the rights and duties enumerated hereinabove, insofar as they are capable of being ascertained; (2) duties;

the antecedents and the consequences of the rights and

(3) the remedies for the violation of the rights and the nonperformance of the duties; (4)

the entities called upon to prosecute said remedies; and

(5)

the history of Public International Law. — Oo — 0

0^

Chapter 5 THE FIRST FUNDAMENTAL RIGHT: THE RIGHT OF EXISTENCE, INTEGRITY AND SELF-PRESERVATION

BASIS OF THE RIGHT Once a State has fulfilled the necessary requisites for recognition as such, it exists; therefore, it becomes subject to righLs and obligations under the international legal order. These rights, it cannot exercise, and the responsibilities, it cannot fulfill, unless its continued existence is more or less guaranteed. Continued existence presupposes its right to survive: sometimes survival is predicated not alone on the physical maintenance of its territorial integrity; not infrequently survival demands physical expansion, hence, if need be, a State may validly acquire territories. In its fight for survival, a State ought to defend itself whether individually or in collective collaboration with other States, whenever its continued existence is placed in jeopardy; hence the right of selfpreservation.

THE RIGHT TO ACQUIRE TERRITORIES The territory of a country may be physically and materially inadequate for the needs of its people: a peckish race finds necessity a basic law; thus the State will seek to expand, sometimes by honorable and consequently justifiable means, oftentimes by the brutal might of irresistible force. The history of international experience records, inter alia, the following modalities of acquiring territories: --(1)

discovery and occupation;

siZ)

prescription; 134

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S (4)

conquest and subjugation; and

S (5tf

accretion.

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1

DISCOVERY AND OCCUPATION Almost every region on earth today has already been "discovered and occupied" so this legitimate form of acquiring territory can hardly be availed of by modern States. However, since this used to be a very important — perhaps, the most practical — modality of territorial expansion, it is worth our while to mention some of the principles governing this modality: (£r Firstly, only "terra nulliua" (Stateless territory) could be acquired by discovery and occupation. Thus, lands already belonging to the •civilized States" were declared off-limits; upon the other hand, those occupied by the "primitive savages" were regarded as fair prey. Fenwick saye that "international law has not recognized the title of wandering tribes or even of settled peoples whose civilization has been below the European standards." 2

. t2T Secondly, mere discovery, mere planting of the flag or proclamation of sovereignty over the area, was considered hopelessly insufficient. Aside from discovery, there had to be occupation, not a Temporary or transient occupation but an "effectrve-irccupation" — one that would effectively take real possession of the territory and establish there some kind of administration. Mere discovery gives an "inchoate title" (this means that the discoverer must be given full opportunity to effectively possess; therefore in the meantime, other States are legally excluded from the occupation of the territory involved.)* But if that "inchoate title" does not ripen into an "actual or real title" by effective possession and administration, some other country may possibly acquire the territory.* 3

'See Briggu. The Law of Nations, p. 250. 'Fenwick. International Law, p. 346. ^Kelsen, Principles of International Law, pp. 214-216. Kelaen, op. cit.. p. 215; Hall, Treatiee on International Law, p. 127. ^Island ofPalmas Arbitration, 22 American Journal of International Law U926), p. 867. 4

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Island of PalmaB Arbitration 22 American Journal of International L a w 867 FACTS: In the 16th century, Spain discovered the Island ofPalmas midway between Mindanao (Philippines) and the Dutch East Indies. However, Spain did not effectively possess the territory. It was Holland (now called The Netherlands), which exercised authority over the island. As the successor to the Spanish territories in the Pacific Ocean by virtue of the Treaty of Paris of Dec. 10, 1898, the United States asked that the island be awarded to it. HELD: The island cannot be given to the United States for the inchoate title possessed by Spain (as a result of its discovery) never ripened into a real title for failure within a reasonable period to effectively possess and administer the territory. Effectiveness is required not only for the initial act of acquisition but also for the maintenance of the right. Upon the other hand, Holland bases its claim to sovereignty on the title of peaceful and adequate display of State authority over the island. This title having been duly proved, the island should properly belong to Holland. (3-) Thirdly, the continental shelf of the territory discovered and effectively occupied should also belong to the acquiring State. The {^continental shelf^of a country is that part of the seabed and BubsoiTof the submarine areas contiguous to the coast, but outside the area of the maritime zone to a depth of 200 meters or even beyond these limits "to where the depth of the superjacent waters admits of the exploitation of the natural resources" of the sea-bed ard sub-soil of the submarine areas. (See definition of "continental shelf in the UN Convention on the Continental Shelf). The "continental shelf has been incorporated in Rep. Act N o . 387, otherwise ktiown as the Petroleum Act. (See also discussion in Chapter 8 — Property and Jurisdiction). (4)

Fourthly, the following doctrines have fallen into disfavor:

(a? the mouth-of-the-river doctrine — the State that occupies the land area at the mouth of a river is supposed to be in constructive possessiop of theentire territory thru which t h e j y e r runs; (hy/ the Hinterland Doctrine, — occupation of the coast means constructive occupation of the entire interior even if not yet explored; and i

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(c/ the right of contiguity — occupation of a particular territory gives a right to afTthe neighboring territories insofar as the latter regions are essential for the proper defense and protection of the former. 6

^PRESCRIPTION ^Prescription as a mode of acquiring territory necessitates two (2) ^m^gortant elements^ continuous, good faith or in bad that while discovery prescription demands

public, and adverse possession whether in faith of some other State's territory. (Note and occupation presupposes Stateless land, prior ownership or title in another State.).

(2) lapse of a reasonable period of time (what is reasonable is a question ol fact and can be ascertained" from the particular circumstances surrounding a case). N O T E : In the settling of the boundary dispute between British Guiana and Venezuela in 1697, fifty years' possession was considered sufficient to convey title. CESSION Cession is a mode of acquiring territory effected either voluntanTptagTh the case of a sale or a donation) or involuntarily (as_ a result^ of war), perfection or validity of the cession commences upon the meeting of the minds; delivery or tradition merely effectuates the actual exercise of sovereignty. A mere lease effectuated by the owner in favor of another State cannot transfer ownership for then the possession of the holder would not be adverse; nonetheless, should the lease be publicly repudiated, adverse possession can set in and the territory may be acquired by prescription. Should the State making the cession turn out to be a mere intruder or usurper, with no transferable right, the cession is practically purposeless, and ought to be deemed inefficacious. The courts have generally held that a treaty of cession is a deed or grant by one sovereign to another, which transfers nothing to which the grantor had no right of property. 7

8

'See Wilson, Handbook of International Law, pp. 78-79. See Art. 4 o( the Washington Treaty of 1897. "See Milehel u. U.S.. 9 Peters 711. 7

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Historic examples of cession are the following: (1)

cession of Louisiana by France to the U.S. (1803);

(2)

cession or Florida by Spain to the U.S. (1819);

(3) (4) (1899).

cession of Alaska by Russia to the U.S. (1867); and cession or the Caroline Islands by Spain to Germany

NOTE: All the abovementioned cessions were made by a treaty of sale. CONQUEST AND SUBJUGATION 9

In the case of Castillero v. The United States, conquest was defined as "the acquisition of the sovereignty of a country by force af-arma exercised "by-an independent-power, which reduces the vanquished to the submission of its empire." Mere physical conquest gives an inchoate title; for the title to ripen to real ownership, annexation or subjugation must follow. Such annexation or subjugation takes place lTthe formal cession is made in the treaty ofpeace (by legal fiction, the territory is terra nullius, in view of the extinction of the former sovereignty) or if the loser silently" arnSwTme transfer of authority (hprp the loser presumably is wilTifie tosleep on its rights)." Parenthetically, it should be stated that a treaty ol peace is essentially entered into thru the nsg_flf force j?nd intimidation: now then, would such a treaty be valid? |

10

(1) Under general international law, while duress usually vitiates the consent given to a treaty, one notable exception is the treaty of peace for such a treaty is precisely entered into as a result of fear. 12

(2) However, under the present Charter of the JJNH-he threat or the use of force i n j R t e m a t i o n a l relations ic i l l e g a l Thus, noday conquest can no longer be deemed a legitimate modality or acquiring territory. 13

•2 Black 109. '"Oppenheim-Lauterpacht, op. cit., 518. "See Fenwick. International Law, 359-360. "See Kelsen, Principles of International Law, p. 326. A r t . 2. No. 4. la

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The Philippines was acquired by Spain by virtue of discovery (i.e., from the European viewpoint) and effective occupation; subsequently, it became part of American territory as a result of physical conquest and eventual subjugation (embodied in the Treaty of Paris — a treaty of cession); the Japanese during the Pacific War never acquired the Philippines in the international sense, for while for a time we were on the verge of physical defeat (conquest), we were never annexed or subjugated for the simple reason that Japan lost the war. Among the treaties and documents which have denounced conquest as a means of acquiring territory are the following; (1) The Anti-War Treaty of Non-Aggression and Conciliation (signed at Rio de Janiero, Oct. 10, 1933 by certain South American States). (2) The Declaration by American States (signed at Washington, August 3, 1932). (3) The Charter of the OAS (Organization of American States), signed at Bogota, April 30, 1948. Art. 17 of the Charter states that: "The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatsoever. No territorial acquisitions or special advantages obtained by force or by other means of coercion shall be recognized." (4) The Draft Declaration of the Rights and Duties of States (signed by 11 out of 13 member-States of the International Law Commission). Under Art. II of the Declaration, every State has the duty to refrain from recognizing any territorial acquisition by another State thru war, or the threat of use of force. ACCRETION Accretion is the process of attaching or incitrpjarating something to what an owner of territory already has: the process may be a natural one (caused by such natural forces as the current of a river or frje*action of the sea) or an artificial one (such as by the Act of the State in reclaiming part of the sea in so-called "reclayihation projects")

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When the territory of a State abuts upon the sea or when it is bounded by a river, the action of the water may create new formations, the titles to which are determined by rules drawn in the main from Roman jurisprudence. Where islands are formed off the coast ofa State by alluvium, volcanic action, or other causes, they become a part of the State to which the coast belong. The coast line is thus moved out into the sea, and from the limits of the new formation, the extent of territorial waters must be estimated. This was the opinion of Lord Stockwell in the famous case of the A N N A . " 14

OR MODES OF LOSING TERRITORIES* / M O D lAUTIES , There are six (6) ordinary ways (modes or modalities) of losing territories: (fl) ) dereliction or abandonment (in a sense, this is the opposite o£-discovery and occupation: there must be a physical abandonment of the property and the intent never to return to the same — animus_np.a revertendiy^ U2) A prescription —just as there is acquisitive prescription, therevisvalso extinctive prescription; (7(3) | cession — since by cession one State can acquire additionai^territory, it necessarily follows that some other State has lost the same territory; 4

0 M subjugation — physical conquest alone of a territory cannot-result in loss; there must also be subjugation. The moment the right of occupation becomes permanent, absolute title is vested in the conqueror — resulting in loss to the vanquished; 17

(/(5) ybrces of nature (for instance, avulsion or the sudden breaking/off of part of the territory can result in loss unless steps are undertaken to force a return; volcanic eruption may completely destroy a city or even wrought tremendous damage to a province or several provinces (e.g., the great extent of damage caused by Mount Pinatubo in the Philippines); natural elements

,4

Taylor, International Public Law, p. 273. 5 C. Rob. Adm. 373. "See Hall, Treatise on International Law, Sec. 34. "See Johnson u. Mcintosh, 8 Wheat, 543. !i

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harnessed by science, e.g., nuclear bombs, may completely wipe out a State); and 18

1(6) Jsucce^fuLj^vohrtwms-ind inooisinnr^ (e.g., England lost the Uwred States in this manner; and a new State, a new power, soon emerged — the United States of America). (NOTE: The mere declaration of independence does not commence in a new State: success has to follow.) f) ©HUA/ MutuAOt CAutU/ *• \f()iCQfluc INTERNATIONAL ENVIRONMENTAL LAW

Vuxjfi^ "

"International environmental law" encompasses the study of the norms and institutions provided by the international legal system that regulates environmental change direct!y,_or_ indirectly attributable to human activity and perceived by the international community to have a.detrimental effect on valued human interests. (Allen L. Springer, The International Law of Pollution, 1983, p. 54). This definition excludes investigation of the international response to natural disasters such as floods, typhoons, hurricanes, earthquakes, and volcanic eruptions, except in situations of alleged links between some human action and the resulting weather patterns./Efforts to "improve" upon existing natural conditions, such as irrigation or forestation projects, are similarly excluded, unless they are undertaken to remedy past harmful human practices or could themselves result in detrimental environmental change. .According to Springer, two (2) dimensions of international environmental law are distinguishable from each other namely: (lj^the law of pollution and (2) the law of spoliation. These can be differentiated in conformity with the modality in which human activity produces its detrimental impact. Pollution is essentially an "additive" process, while spoliation involves the "extraction" of natural resources from their original setting. Springer avers admittedly that this distinction is often difficult to fr.aintain in practice. Dumping of toxic chemicals into a river could be considered "extractive" in that it limits the availabitlity of the river as a source of fresh drinking water. Adding the element of intent to its definition ("intentional extraction") might help, in

'"See Hyde, International Law, Vol. I, pp. 391-392.

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some cases, to clarify the distinction, but there will undoubtedly be instances where no simple line can be drawn. I For Springer, there are two justifications for making the distinction between pollution and spoliation. First, it reflects traditional international usage, since numerous international agreements explicitly refer to pollution as an additive process. Problems such as fishery management tend to be treated as a separate issue, since States appear more concerned in this area, with the distribution of resources than they are with preserving the integrity of ecological systems. Second, the distinction provides a pragmatic justification. Narrowing the scope of relevant "law" simplifies the research process in a broad and rapidly expanding field. Despite this distinction, however. Springer contends "that the framework created and the norms and process analyzed are applicable to the law of spoliation. Indeed, it is presumed that the interrelationship that makes it difficult, at times, to distinguish pollution and spoliation can be used to encourage the application of principles derived from one dimension of the field to the other. (See the following: J.L. Hargrove, "Post-Stockholm-Influencing National Environmental Law and Practice Through International Law and Policy," American Society of International Law, Proceedings 66 [1972J:9; Ludwik A. TeclafT, "The Impact of Environmental Concern on the Development of International Law," in International Environmental Law 119411; Myres McDougal, et al., "The World Constitutive Process of Authoritative Decision" [1969-19721; Philip C. Jessup, "Do New Problems Need New Courts?" in AS1L, Proceedings 65[1971|:261-268; and Trail Smelter Arbitration, March 11, 194113 U.N.R.I.A.A., 1965]).

INSURING AGAINST GLOBAL WARMING In 1992, the UN General Assembly convened a Conference on Environment and Development ( U N C E D ) held in Rio de Janeiro (June 1992), with the highest levels of participation. The resultant effect of said conference was a proposed treaty designed to cope with climate change. Brought about by widespread concern over global warming, the threats of climate change are potentially serious and demand the concerted attention of the world community.

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Roy P. Crocker, a professor of law at the University of Southern California, in his "Beyond Rio: Insuring Against Global Warming" {American Journal of International Law, July 1992, Vol. 86, No. 3, pp. 487-488), wrote: "In light of all the scientific and economic uncertainties, climate change might best be viewed as presenting a heroic problem in risk management. The conception reminds us that the aim is not to avoid all the perils that greenhousing may present, on a worst-case scenario, at any cost; the goal is to reduce the sum of the cost of avoiding, controlling and insuring the risks. As far as risk avoidance is concerned, no one has thus far documented a convincing case for going much beyond a no regrets policy (constraining emissions that can be eliminated at negative or relatively small cost). A good argument for further expenditures might be based on appeals to a collective aversion to the risks of global catalysms, one that warranted expenditures on measures such as increased R & D and climate modeling construed as a social risk premium. Some may conclude that more aggressive avoidance measures are called for. But even if a far-ranging cooperative solution that emphasized prevention should prove ideal from a theoretical perspective, negotiations to achieve it are likely to be defeated by diplomatic obstacles (including, preeminently, North-South conflicts). Collapse of the idea would necessitate a second-best solution characterized by more than optimal reliance on independent (non-cooperative) internal defensive adaptations, such as the building of dikes in some regions and the improvements of water management in others. And additional insurance, too. Indeed, in the face of the largescale scientific, socio-economic and diplomatic uncertainties, several commentators have begun to talk of insurance against greenhouse driven perills. Generally, those who have aired the idea are not using the concept in the most precise or useful manner. But there is value in taking the idea quite literally, and examining what private insurance markets could contribute by spreading the coBts of protecting against risks that cannot be cost-beneficially (or diplomatically) eliminated, and softening the losses of those who find themselves most hard hit. "Many of the anticipated perils of greenhousing, such as storms, floods and crop loss, are currently insurable by rivate markets, and the potential contribution of those markets

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cannot be ignored when nations gather to evaluate greenhouse policy options JSut in the long term, if wanning gradually increases, private coverage, imperfect at_best, is destined to recede. There are several ways in which the world community might usefully enter the field to support and supplement private coverage. Indeed, from the developed world's perspective, with the option of subsidizing or providing insurance the more attractive, the more dubious the developed nations are, about ( # * the real risks of climate change; and t2f*the ] likelihood that transferred resources or technology will be applied by LDCs to improving the global environment, rather than to internal development. Indeed, if we carry this line of thought one step further, and are prepared to seek out the benefits of insurance in a wide range of unconventional mechanisms, there are various other alternatives that the post-Rio negotiators could quite profitably consider — from global social insurance to underwriting a fund for global disaster relief. In the last analysis, however, worldwide efforts to cope with climate change are destined to embrace a wide variety of techniques. The definitive features will emerge only gradually, even experimentally, as an outgrowth of the momentuous diplomatic endeavor that is only now beginning." >

r e a

D E V E L O P M E N T S IN SPACE LAW Once upon a time, man only looked at the moon. One day, with a super-powered lens he saw the surface of the moon. He was delighted. He wondered: Could he reach the moon? Since then he has been unhappy. He has been disturbed by the consuming query. Thus, he has worked and labored, searching ceaselessly for the answer. Today, his mind refined by reason and rendered astute by science, he has worked out what seems to be the inevitable answer; and in fact the newly invented satellites and space rockets have already taken him to the moon." In his International Law and Activities in Space, W.C. Jenks comments: "The matter has passed far beyond the stage of imaginative fiction. . . We are soberly assured by leading rocket

'"Gloria C. Paras, "How About an International Space Law," Far Eastern Law Review, Vol. V I , No. A, p. 508.

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engineers, with every appearance of scientific authority, that we are on the verge of developments which will result in instrument-bearing missiles coasting in space in the orbit of the earth for a limited period, recording electronically scientific information to earth stations by radio and television. 20

Before the end of the year 1957 Russia had launched Sputniks I and II with a dog, Laika. Both man-made satellites were acclaimed successes. Soon after, four astronauts reached the fringes of outer space: the Russian Gagarin; and the Americans, Sheppard, Glenn and Carpenter. And then Neil Armstrong stepped on the moon. Many others followed. In this drama of roving, man-made satellites, intent on exploring and exploiting the earth's atmosphere, stratosphere, and ionosphere, several problems have arisen, namely: (1) (2) space?

What is the legal status of space? W h o has jurisdiction over activities conducted in

(3) How may national authorities protect themselves against interference from space with matters within their territorial jurisdiction; or how may they interfere, by electronics or other means, with activities in space for the purpose of making such protection effective? (4) What is the law applicable to transactions in space beyond the atmosphere? (5) What is the legal status of unoccupied territory in the moon or other planets and satellites, and the natural resources that may be discovered and exploited in such territory? (6) What is the relationship between the existing community of States and a legally organized community which may be found to exist in other planets or satellites? Space rivalry, nonetheless, has to a great extent diminished in today's post-Cold War era, and in effect, has reduced the danger of outer-space competition, although there is a four-cornered rivalry among the U.S., Germany, Japan, and to a lesser extent, Russia.

" W . C . Jeruu, International Law and Activities in Space, p. 1.

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egal status of space: On the question, Associate Justice Gloria Conti Paras of the Philippine Court of Appeals, in her How About An International Space Law?, enthused: "What is the legal status of space? It is submitted that the space beyond the atmosphere is res extra commerciuJn, incapable by its very nature, of appropriation on behalf of any particular sovereignty. Space is that beyond the atmosphere of the earth. The boundaries of space are bereft of precise definition. The rotation of the earth about its own axis, its revolution around the sun, the regular motions of the sun and the planets in the solar system, render impossible the adoption of the rule of sovereignty over territorial air space. In view of these Brobdingnagian facts, it is inconceivable that a missile, projected from a particular area of the earth's surface, would remain directly above the same surface area. The more practical theory to adopt in connection with this matter is the rule of freedom of the seas. 9pB0may be likened to the high s e a s M ^ H ^ B B W e by any particular government, and necessarily open fo free spatial navigation by all those who may, by accident or design, venture forth into its unknown confines. Also, like the open seas, space may be subjected only to the natural law limitations of right and justice." ,

21

(fisdiction over Activities Conducted in Space: Several suggestions have been made on the matter of jurisdiction: supervision must be vested in intemational bodies (e.g., the UN or agencies constituted by it). Effective authority is to be exercised either thru the General Assembly of the UN or thru any entity agreed upon in an international conference called precisely for the purpose of centralizing authority); (b^ Alternatively, jurisdiction may be exercised by the country: Or)

conducting the particular activity involved;

(2rY from which departure was physically made; or

" S e e Gloria C. Paraa. op. cit., pp. 509-510; Jenka. op. cit.. pp. 5-17

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of the citizens conducting the enterprise.

In view of the global fascination and advantage that may result therefrom, it has been suggested that an international body will best suit the purpose of effective jurisdiction." Protective measure: Flight into outer space may involve problems of military strategy and espionage. In time, analogies from present maritime and aviation laws may prove to be of immense value. Applicable Law on Outer-Space Transactions: It is imperative that future General Assemblies of the UN should formulate rules on the matter. Were the principles of Private International Law to apply by analogy to Private Inter-Spatial Law (e.g., lex loci contractus, lex nationalii, lex domicilii, law of the destination, lex loci solutionis, law of the flag or more appropriately law of the spaceship or rocket), we shall find ourselves beset again with problems of enforceability and jurisdiction. Indeed analogous principles "would bring us back to the practicability and legality of applying the theory of territorial sovereignty in space." 23

Ownership of the Moon and Other Outer-Space Bodies: Should the moon and other outer-space bodies be eventually reached and occupied, who would own them? The theory that the first State that is able to effectively possess them should be the owner (this follows the theory of the first mode of acquiring territory: discovery and occupation) appears to be rather naive: firstly, with the advent, of sophisticated weapons (armaments), the effectiveness of which apparently continues to increase with each passing day, effective possession of the "heavenly bodies" would primarily depend on technological success (with alternating periods of temporary defeat); &condly, the time factor and the distance-factor ought to be considered (by the time perhaps that the explorers can return to earth, the inhabitants who saw them off may no longer

" S e e W.C. Jenka, op. cit., p. 17. " S e e Gloria C. Paraa, op. eit., p. 511.

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be present to greet them on their arrival, what is worse is the possibility that there may be no returning at all). Declaration By the General Assembly on the Matter: On December 13, 1963, the UN General Assembly unanimously issued a Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space. The most important principles arrived at were (and still are) the following: (Jf The exploration and use of outer space shall be carried on for the benefit and in the interest of all mankind. ( 2 ^ Outer space and celestial bodies are free for exploration and use by all States on the basis of equality, and in accordance with international law. (3) Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. (4) The activities of States in the exploration and use of outer space shall be carried on in accordance with international law including the Charter of the United Nations, in the interest of maintaining international peace and security, and promoting international cooperation and understanding. (5) States bear international responsibility for national activities in outer space, whether carried on by governmental agencies or by non-govern mental entities, and for assuring that national activities are carried on in conformity with the principles set forth in this Declaration. The activities of non-governmental entities in outer space shall require authorization and continuing supervision by the State concerned. When activities are carried on in outer space by an international organization, responsibility for compliance with the principles 6et forth in this Declaration shall be borne by the international organization and by the States participating in it. (6) In the exploration and use of outer- space, States shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space with due regard for the corresponding interests of other States. If a State has reason to believe that an outer space activity or experiment planned by it or its nationals would cause potentially harmful interference with activities of other States in the peaceful exploration and use

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of outer space, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State which has reason to believe that an outer space activity or experiment planned by another State would cause potentially harmful interference with activities in the peaceful exploration and use of outer space may request consultation concerning the activity or experiment. .(7) The State on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and any personnel thereon, while in outer space. Ownership of objects launched into outer space, and of their component parts found beyond the limits of the State of registry shall be returned to that State, which shall furnish identifying data upon request prior to return. (8) Each State which launches or procures that launching of an object into outer space, and each State from whose territory or facility an object is launched, is internationally liable for damage done to a foreign State or to its natural or juridical persons by such object or its component parts on the earth, in air space, or in outer space. (9) States shall regard astronauts [with reference to Americans] [or cosmonauts apropos to Russians [as, envoys of mankind in outer space, and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of a foreign State or on the high seas. Astronauts [or Cosmonauts] who make such a landing shall be safely and promptly returned to the State of registry of their space vehicle. Treaty on Outer Space: On January 27, 1967 at Washington, D.C. U.S.A., 62 countries signed a treaty on the Exploration of Space (including the Moon and other Celestial Bodies). The Treaty reiterated the rules given in the Declaration by the General Assembly (discussed in the preceding topic) stressing particularly that: (a) outer space, the moon and other celestial bodies are subject to the principles of international law; (b) gation;

they are open to navigation and scientific investi-

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(e) they are not, however, subject to appropriation by any State; and (d) the signatory StateB agree not to station in outer space or to place in orbit around the earth, any object carrying nuclear weapons. The UN Outer Space Law: There have been two major conferences on outer space organized by the United Nations. The first UN Conference on the Exploration and Peaceful Uses of Outer Space, held in Vienna in 1968, examined the practical benefits to be derived from space research and exploration and the extent to which non-space powers, especially developing countries, might enjoy them. It also considered the opportunities available to non-space powers for international cooperation in space activities. The Second UN Conference on the Exploration and Peaceful Uses of Outer Space ( U N I S P A C E 82), also held in Vienna in 1982, reflected the growing involvement of all nations, developed and developing, in outer space activities; assessed the current and future state of space science and technology; considered the applications of space technology for economic and social development; and discussed international cooperative programs related to space and the role of the U N . U N I S P A C E 82 stressed that the prevention of an arms race and hostilities in outer space is an essential condition for the promotion and continuation of international cooperation in its exploration and use for peaceful purposes. It made recommendations on the use of space technology, remote sensing of the earth by satellites, the use of geostationary orbit, direct television broadcasting by satellites, and other matters relating to the peaceful uses of outer space. The General Assembly endorsed the recommendations set forth by U N I S P A C E 82, and called for their implementation. Parenthetically, in considering the military uses of outer space, the Assembly has expressed grave concern over the extension of an arms race into outer space and urged all States, in particular those with major space capabilities, to contribute actively to the goal of preventing such an arms race.

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This is amid reports that astronauts aboard the space shuttle Discovery successfully deployed a satellite on Dec. 2, 1992 for the U.S. Defense Department on the U.S. space agency's last secret mission for the military. Analysts have speculated the "spy satellite" will use sensitive radar or high-powered cameras to monitor troop movements in Eastern Europe, Asia, and the Middle EaBt. Space Law — A Second Look: With the launching of the first artificial satellite in 1957, space exploration has become a continuing development highlighted by the landing of man on the moon. A cursory reading at the number of launchings which have been registered with the United Nations ( U N ) will readily indicate the influence of space science and technology on human endeavors. Satellites, for one, can be used for communication, weather forecasting, education, and remote sensing of the resources of the earth. The focal point of international cooperation in space activities is the UN Committee on the Peaceful Uses of Outer Space; this Committee regulates these activities thru its legal sub-committee. And with space law emerging as a rapidly expanding branch of international law, typical examples of the extraterrestrial application of international treaty law to outer space and celestial bodies, include inter-alia: the Space Treaty, the Assistance and Return Agreement, and the Convention of International Liability for Space Damage. Nonetheless, the increase in outer space treaties brings about the need to have a "retook" on the contribution of space law to the development of international law, e.g., traditional modes of acquisition of territory; the capacity of international organizations; State jurisdiction; definition of outer space; the term res communes; military uses of outer space and celestial bodies; international legal implications of satellite communications; international legal aspects of the applications of space science and technology to national development; and the rules relating to the resources of the moon. In the course of the discussion of some of these areas, reference is made to activities relating to space applications in general, and in particular, to direct broadcast satellites and earth resources survey satellites. According to Dr. Ogunsola O. Ogunbanwo of Leyden University, "the Space Treaty is a treaty of principles" and, therefore,

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it did not solve all the legal problems relating to the exploration and use of outer space, e.g., liability for damage, definition of outer space, and question of the utilization of outer space and celestial bodies, etc. — topics earlier adverted to. For instance, on the matter of an effective "definition" of outer space, the continuing partnership of law and science is very important, for as it stands now. States are not anxious for a definition especially if such a definition will interfere in any way with the freedom of the exploration and exploitation of outer space. Anent the matter of the use of reconnaisance satellites," it is felt that as long as those observations from outer space do not interfere with activities on earth and in outer space, such are not prohibited by international law. As Dr. Ogunbanwo would simply put it: "[This is no] different from that of an aircraft or trawler plying outside the territorial waters of another State in order to see what is going on." Apropos to the exploitation of the resources of celestial sources of celestial bodies, this matter requires some kind of licensing, inspection, and control for such enterprises. With regard to property rights, however, jurisdictional purposes demand that a State Party to the Space Treaty on whose registry an object launched into outer space is carried, shall retain jurisdiction and control over such object and over any personnel thereof, while in outer space or on a celestial body. As to the registration of space objects, every attempt should be made to guard against the "flags of convenience" as known in air law. Thus, under the International Telecommunication Union ( I T U ) , a specialized organ of the U N , the International Frequency Registration Board (IFRB) applies the relevant provisions of the Radio Regulations annexed to the International Telecommunication Convention, in connection with frequency assignment notices for space communications received from "administrations." Likewise, the I T U publishes all particulars of the earth and space stations which are recorded in the Master International Frequency register, in application of the provisions of Article 9A of the Radio Regulations. In conformity with Article IX of the Space Treaty, provisions are made to assure protection against the possibility of contamination of the earth by alien organisms. For example, al) of the material collected from the moon's surface and brought to earth in

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sealed containers on July 25, 1960, was placed under quarantine in the Lunar Receiving Laboratory at the Manned Spacecraft Center near Houston, Texas, for 50 days. Fortunately, laboratory tests on animal and plant life showed no ill-effects. As is apparent, the experience gained in the evolving law of outer space has influenced, and will continue to influence the lawmaking process in other domains, e.g., the Law of the Sea and the Law of the Environment. In fine, it is quite appropriate to heed the following remarks of Professor Manfred Lachs, who enthused: "Looking at the body of law now existing, it could not be claimed that the rules adopted attained all the required objectives. Some of them demand further elaboration, while others are not free of imprecision, or leave room for improvement. Some others constitute a bare scaffolding for the law of tomorrow, indications or merely inklings of the trend to be followed." The Future of Space Law: In contemplating future developments in any discipline, there is a certain mystique, if not a measure of enthusiasm. This appears particularly true in the field of space law. During the short span of less than four decades, we have witnessed a spectacular growth in legal doctrines and practices related to man's activities in outer space. Few could have foreseen the host of international agreements, declarations, resolutions, recommendations, and other authoritative statements. The future of space law, thus, just like the present or the past, is the result of trends and developments. Among the legal issues likely to arise in the decade of the '90s will be those relating to: W space stations and human settlements in free space and on celestial bodies; (27 solar power satellites; and (3) the geostationary orbit, direct broadcast satellites, remote sensing, and other matters. These subjects will be briefly covered in that order. The establishment of a permanently manned space station is a desired goal of the United States for this decade. Accordingly, a space station could be manned or unmanned and could involve large astrophysical observatories or earth-looking imaging systems. It could also become a vehicle for the pursuit of a stable planetary program and could serve as a significant center for manufacturing and other commercial space endeavors. A working space station has now been a stepping stone for man's durable stay in geosynchronous orbit or on

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the moon and has thus paved the way for a mission to Mars, and the possible mining of precious metals from asteroids: While space stations may be builL to serve a single function, such as manufacturing or telecommunications, it is anticipated that they eventually will be developed as multipurpose infrastructures which could be utilized in common as well as in a distributed manner. They could be established and operated as governmental projects, as a joint enterprise between the government and private industry or as an entirely private endeavor. Moreover, they could be built or managed by a single State or by a group of countries on an international basis, conceivably within the framework of an international organization like the United Nations or the European Space Agency or in combination with them. While little is known in this respect about the plans and activities of the Russian-led socialist countries, studies of the space station concept have been undertaken in several West European countries, including France, Germany, and Italy and also in Canada and Japan, both independently and/or jointly with the United States. The envisaged scenarios are expected to raise a multitude of legal issues many of which will require appropriate disposition by contract or international agreement. The issues to be addressed may involve problems of inter-party and third-party liability, and rights and responsibilities with respect to the registration of a space station and its component parts. Questions of jurisdiction, supervision and control will also probably arise, especially in cases of divided or joint ownership — national and international, public and private — of platform and operational sub-systems. In devising laws governing human conduct in space, it would be prudent for any State attempting to establish a manned space station involving living and working in space, to make a thoroughgoing review of the possible applicability or inapplicability of its existing domestic laws, including constitutional law, labor law, taxation, torts, criminal law, copyright and patent law, and family law. In addition, the special effect of the space environment and the human physical and mental reaction to its rigors over a longer period of time may have to be taken into consideration. As shortages of conventional fuel recur, due to increases in demand and depletions of existing stock, there will be renewed efforts at harnessing solar energy both on Earth as well as in space. In the latter case, solar power could be used directly as needed on a satellite or space station, or such power could be collected by the satellite and transmitted to Earth thru the use of microwave beams

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or perhaps laser. While solar power satellites (SPS) could certainly constitute a part of a multi-purpose space station, some of the legal and policy issues which wilt have to be addressed are in some respects unique and are, therefore, worth noting. From a policy perspective, the most important issue to be addressed will be the question of the possible internationalization of solar power satellites. An international effort could help to pool resources for the assessment of the feasibility, benefits and impediments associated with the development of satellite power systems and eventually assist in the development itself. Participation by countries could include contributions to natural and human resources needed for the SPS program. Irrespective of whether a solar power satellite system is built with international cooperation, the most important legal issues, such as the permissability of the large-scale transmission of solar power by satellites to Earth, the impact on the environment and possible interference with other radio transmissions, and access to the geostationary orbit for power transfer will have to be addressed. Additionally, while currently the space powers freely utilize solar energy for their space missions, the problems associated with the transmission of such energy via satellites to Earth may require further consideration. The revolutionary advances in space telecommunications and the growing use of the geostationary orbit is expected to place increasing pressure on developed and developing nations alike to find an acceptable solution to the issue of equitable accesB to the geostationary orbit and the frequency bands allocated to space services. In the field of remote sensing, it will have to be decided whether prior consent for the transmission of acquired data to third States or free dissemination of information will be the guiding principle. Insofar as direct television broadcast by satellites (DIBS) is concerned, the unresolved issue of prior consent to such broadcast by a receiving State will require eventual disposition. It is worth noting that many other issues will require attention and subsequent regulation. For example, with regard to space transport, the expected routing movement of people and materials to and from space is also likely to necessitate the establishment of certain guidelines, close cooperation with both domestic a n d international aviation authorities, and clarification of the legal status of a spacecraft during its transit thru the air space of another injury. In this regard, significant attention will also have to be given by the international community to the problems associated

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with Bpace debris, the protection of the space environment and, possibly, the establishment of an International Space Agency. 'Space' University: In early February 1993, the International Space University (ISU) built its terrestrial home in Strasbourg, France. The university plans to launch a one-year master of space studies program in 1995, with permanent facilities to be opened by 1997, according to George Van Reeth, ISU president and former director of the European Space Agency. Strasbourg was chosen as the site for ISU's permanent campus over Kitakyushu, Japan, and Toronto, Canada. The school will also operate affiliate campuses in 24 cities in 14 countries and maintain a small permanent facility in Washington, D.C. The university was founded in 1987 to promote space research across national borders and academic disciplines. Summer programs have included courses in architecture, business, engineering, the life sciences, physics and satellites. Although classes are conducted in English, the 1992 summer's students came from 29 countries. Relationship with Outer-World Communities: Fantastic though may be the thought, still the possibility subsits that in the other worlds, there may be races. States, and organizations, either similar to or different from our Planet Earth. What the relation of this planet would be with them would provide us with hours of intriguing speculation. In the meantime let us turn our attention from "Focus: Infinity" to "Operation: SelfDefense." THE RIGHT TO SELF-DEFENSE The right of individual or collective self-defense is expressly recognized by the UN Charter. Art. 51 thereof reads: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken

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by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security." Comment ( I I To invoke the right of self-defense under this Article, there must be pfSSent the following requisites: J tell an armed attack; (bp the attack must be against a Member of the U N ; ang

(c)

the Security Council must not have acted yet.

(2) "Armed attack" is not defined in the Charter; thus, it would seem JJrat the particular State involved initially determines whether or not such an attack exists; ultimately, it is the Security Council that decides whether or not "the armed attack" has taken place. (37 The Security Council determines whether or not a particular State is responsible for "the armed attack"; it then takes the measures "necessary to maintain international peace and security" (this, of course, does not necessarily mean that "an armed counter-attack" has to be resorted to by the U N . ) (4L--If the "armed attack" is not against a UN member, does there still exist the right of self-defense? While this is not provided for in the Article mentioned, still it is believed that under genera) international law the right continues to exist; indeed the right of self-defense (which is really the doctrine of self-help) is nothing but an extension of the right of self-preservation. Otherwise stated, the right of self-defense is simply the right to repel the use of force with force. The necessity for self-defense must, however, be "instant, overwhelming, and leaving no choice of means, no moment for deliberation."" THE CUBAN QUARANTINE HT July, 1962, United States intelligence sources observed a massive increase in Soviet arms shipments to Cuba. On Septem-

u

The Caroline, see Moore, A Digett of International Law. Vol. I I . p. 412.

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ber 2, Cuban and Soviet officials acknowledged the sending of Russian military aid to Cuba. On September 4, President John F. Kennedy expressed American concern over the Soviet arms buildup. On September I 1, Russia justified the aid because of alleged "imperialist provocation" (on the part of the United States); moreover, Russia claimed, since the United States refused to buy Cuba's sugar, Cuba had no choice but to barter the sugar for Soviet "commodities." 15

On September 13, President Kennedy at a news conference said: "If at any time, the Communist build-up in Cuba were to endanger or interfere with our security in any way, including our base at Guantanamo, our passage to the Panama Canal, or missile and space activities at Cape Canaveral or the lives of American citizens in this country, or if Cuba should even attempt to export its aggressive purposes by force or the threat of force against any nation in this hemisphere, or become an offensive military base of significant capacity for the Soviet Union, then this country will do whatever must be done to protect its own security and that of its allies." 26

On September 25, Cuba's Fidel Castro announced plans to build a port in his country for the Atlantic fishing fleet of Russia. On September 26, the United States Congress expressed the nation's determination to oppose with force if necessary Communist aggression or subversion based in Cuba. Congress relied on: (a)

the Monroe Doctrine enunciated in 1823'"

(b) the Rio Treaty of 1947 (where it is provided that an armed attack against an American state shall be considered as an attack against all American states)

September 2, 1962, issue of the newspapers carrying a joint communique published by the Soviet News Agency Tass. " A f t e r Kennedy's assassination, Cape Canaveral was renamed Cape Kennedy. The Monroe Doctrine of 1823 laid down two important principles of American foreign policy: (a) Firstly, America was for the Americans; hence the European powers should no longer regard any part in America as subject to future colonization; and (b) Secondly, since the United States had no desire to intervene in European affairs, it would regard European intervention in American affairs as an unfriendly act of aggression against the United States itself. a

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(c) the Declaration of the Foreign Ministers of the Organization of American States ( O A S ) at Punta del Eate (January, 1962), stating that: "The present government of Cuba has identified itself with the principles of Marxist-Leninist ideology, has established a political, economic, and social system based on that doctrine, and accepts military assistance from extra-continental Communist powers, including even the threat of military intervention in America on the part of the Soviet Union." ( N O T E : The foreign ministers eventually approved a resolution allowing even the use of necessary arms for the prevention of Communist extension into the Western hemisphere). On October 22, Kennedy, in a radio-telecast revealed to the American public the existence of Soviet offensive weapons in Cuba, announced the intent of his government to effect a quarantine of Cuba. To quarantine a country is to prevent it from receiving certain goods or materials believed detrimental not only to it but to surrounding States. In point of actual application, it is akin to a blockade. Kennedy in making the dramatic announcement said: "Our policy has been one of patience and restraint, as befits a peaceful and powerful nation, which leads a worldwide alliance. We have been determined not to be diverted from our central concerns by mere irritants and fanatics. "But now, further action is required — and it is under way; and this action may only be the beginning. We will not prematurely or unnecessarily risk the course of a worldwide nuclear war in which even the fruits of victory would be ashes in our mouth — but neither will we shirk from that risk at any time it must be faced. "Our goal is not the victory of might, but the vindication of right — not peace at the expense of freedom, but both peace and freedom, here in this hemisphere, and we hope, around the world." Kennedy called upon the Council of the OAS to meet and act under Arts. 6 and 8 of the Rio Treaty." In the afternoon of " T h e Rio Treaty entered into by all the American Republics provides Tor reciprocal assistance in caae of a threat of external aggression Under Art. 6 of

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October 23, said Council met and unanimously approved a resolution: (a) calling for immediate dismantling and withdrawal from Cuba of all missiles and war weapons with offensive capabilities (b) recommending even the use of forcible measures in the attainment of said objective. Later, in the evening (7 p.m.) of October 23, 1962, Kennedy signed a proclamation imposing a quarantine on offensive weapons shipments to Cuba, and ordering American forces "to interdict the delivery of offensive weapons and associated materials to Cuba" effective at 2 p.m., Greenwich time, October 24, 1962. Noting that the U.S. Armed Forces readily obeyed the command of their President, Premier Khrushchev of Russia wrote Kennedy on October 26, a message agreeing to withdraw the offensive weapons. This was followed up in the subsequent message of October 28 where the Premier informed Kennedy that he (Khrushchev) had "instructed our officers to take appropriate measure to discontinue the constructions, to dismantle them, and to return them to the Soviet Union." 29

Was the Cuban quarantine a violation of international law? There are many who say that the quarantine violated no rule or principle of international law. They argue: (1) The quarantine was not a unilateral actuation on the part of the United States; it was based on the collective judgment and recommendation of the American Republics made under the Rio Treaty — a resolution recommending that member-States of the OAS take all measures, individually and collectively including the use of armed force, to ensure that Cuba cannot continue to receive from the Sino-Soviet powers military, material and related 30

the Treaty, in case of such a threat, the Organ of Consultation (composed iif the foreign ministers of all the member-Stales) is supposed to agree on the proper defensive measure to be undertaken. Under ArL. 8, the use or the "armed force" is listed down as one of the possible measures which could be adopted. "Secretary-General U Thant was inslrumenlal in Ihe rapprochement between the Premier and the U.S. President. Covey Oliver, "International Law and the Quarantine of Cuba." A . J . I . L . April 1963, p. 376. ao

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supplies which may threaten the peace and security of the Continent. 31

(2) The action authorized by the OAS was a defensive response to the gravest external threat the Western Hemisphere had ever faced. The measures authorized in the Rio Treaty for defense purposes do not contravene the UN Charter, for when the Charter was being framed, the existence of regional organizations and their provisions for defense were precisely discussed and implicitly allowed by the adoption of Art. 51(1) of the Charter. 31

33

(3) The quarantine was limited to a specific nuclear threat to the hemisphere, was to last only so long as the missile ships might continue, and operated under directives for diversion rather than more drastic action, except in case of resistance to diversion. 34

35

(4) Not being obligatory, it could not be regarded as an "enforcement action" requiring prior consent of the Security Council under Art. 53 of the UN Charter. 36

(5) It was initiated as a measure of individual and collective self-defense in response to a "threat of force" amounting, under present conditions to an "armed attack," and was, therefore, permissible under Art. 51 of the Charter, prior to submission to the United Nations as normally required by Art. 37 of the Charter. 37

(6) Considering history and experience, it is almost impossible to get an authorization for regional action from the Security Council (with Russia almost sure to exercise its veto power). 38

"See Leonard C. Meeker, "Defensive Quarantine and the Law," A.J.I.L.. July. 1963. p. 517. "Covey Oliver, toe. cit. "Leonard C. Meeker, op. cit., pp. 518-519. ""Diversion" here mean6 the turning away from their destination or the ships carrying the prohibited war materials. "•'"Covey Oliver, loc. cit. "Quincy Wright, "The Cuban Quarantine." A.J.I.L., p. 544. • Cons)der the possibilities of swift nuclear extinction. •"See Leonard C. Meeker, op. cit., pp. 519-520. Meeker writes: "The unfolding of history has shown a lack or agreement among the Security Council's permanent Members such that the Council has been disabled from performing its functions as originally intended. This has, of necessity, thrown an unexpected responsibility onto other mechanisms provided in the Charter. A dozen years ago, the General Assembly's adoption of the Uniting for Peace Resolution signalled a stage in the constitutional development of the United Nations. The Cuban quarantine of 1962 marked an assumption of increased responsibility by ;

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(7) Finally, under the declaration of principles in the Charter it would seem that the threat or use of force is prohibited only when such is inconsistent with the purposes of the United Nations. 39

Upon the other hand, several experts on the subject, among them Prof. Quincy Wright, have expressed grave doubts as to the legal feasibility of the quarantine. The arguments against the legality of the quarantine may be summed up as follows: (1) The quarantine was really unilateral on the part of the United States. While it is true that the resolution of the OAS Organ of Consultation was made a few hours BEFORE America thru President Kennedy formally proclaimed the quarantine on October 23, 1962, still the resolution was passed only A F T E R Kennedy had announced on October 22, 1962 the intent of the United States to effect such a quarantine. (Thus, Wright says that the OAS was hardly in a position to render free judgment, the quarantine having become practically a fait accompli).* 0

(2) The argument that the UN Charter inferentially allows regional organizations to act in accordance with their respective charters even when some provisions thereof militate against the Charter, would seem to be pointless when it is remembered that under Art. 51 (1) of the Charter said provisions are valid only if "consistent with the purposes and principles of the United Nations." (3) The "limited duration" of a violation of the UN Charter is no excuse for its deliberate disregard. Where the Charter fails to distinguish, individual States cannot distinguish. (4) Under Art. 53 of the U N Charter, in general, "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council." It will be noted that the phrase "enforcement action" is not qualified: hence, it may refer to actions which are obligatory as well as to actions which are merely recommendatory. The authorization granted by the OAS to the United States with respect to the Cuban quarantine falls under the second group. To say that the au-

a regional organization. Accompanying a decline in the affirmative authority of the Security Council, it should not be surprising to find also some contraction in the Council's negative authority to preclude action by other bodies." ™lbid., p. 623. *"Quincy Wright, op. cit.. p. 556.

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thorization of the Security Council is required only for the first group is to violate the principle of peaceful settlement of disputes. (5) The argument that resort to forcible means could be allowed under Art. 51 of the UN Charter which expressly recognizes the right of individual and collective self-defense is illusory for two reasons: Under Art. 51, there ought to be an "armed attack" (this was never present in the Cuban case.) If we were to broaden the scope of "armed attack" to the imminent threat of a nuclear or atomic first strike (the doctrine of "anticipatory, collective self-defense"), this would indubitably run counter to the express provision of Art. 51, and in addition, would go against Art. 2 (4) which requires UN members to refrain from threats to the peace, and Art. 33 which purposively requires "peaceful means" to settle disputes "the continuance of which is likely to endanger the maintenance of international peace and security." In point of law, therefore, mere threats cannot justify a unilateral right of military self-defense." 41

(6) The moral impossibility of compliance with an express provision in a treaty is ordinarily not a valid argument for disobedience thereto, particularly when no previous attempt at such a compliance has been made. (7) Even if the intent is consistent with the principles and purposes of the United Nations, the threat or the use of force should never be considered lawful, except when duly authorized under the Charter. To rule otherwise would be to contradict the very aims of the World Organization. The world is preeminently fortunate Russia was willing when it said "alt's well that ends well," but suppose the Soviets had insisted? The Cuban crisis was considered by the UN as officially closed when on January 7, 1963, UN Secretary-General U Thant received a letter jointly signed by the United States and the Soviet Union stating that their governments had effected a full settlement of the dispute. It is true that one month later there were reports of continuing Soviet military build-up in Cuba, but these reports were dismissed by both President Kennedy and Premier Khrushchev on 43

"Covey Oliver, op. eit.. p. 375. "Quincy Wright, op. eit.. p. 560. " T h e joint letter bore the signatures of Adlai E. Stevenson, chief US delegate to Ute UN and Vastly V. Kuznetson, Soviet Deputy Foreign Minister.

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February 7 and 9 respectively. The American President remarked: "It may be that there are hidden away certain missiles. But they are going to have to be erected, and we have continued complete surveillance." On his part, the Russian head of state asserted that Russia did not have to have arms of nuclear warfare in Cuba "for we can reach anyone we want with our own weapons from our own territory. " 4l

MILITARY PARAMETERS OF POWER Analysts of international affairs increasingly have recognized the importance of economic strength in determining a nation-State's power potential. (Daniel S. Papp, Contemporary International Relations, 1988, p. 365). Observe that during the 1970s, international actions increasingly recognized that economic capabilities were a major parameter of power in the international arena. During the 1980s, with the uncertainties brought about by the complete breakdown of the Bretton Woods system, this recognition occupied an even more central place in the consciousness of international decisionmakers. Given, however, the relational and contextual nature of power, one must remember that economic capabilities alone do not determine an actor's power potential. Therefore, despite the onceagain-acknowledged importance of the economic parameters of power, economic capabilities remain only one of a number of measures of power in the international arena. (Ibid., p. 392). Take the case of the military parameters of power. As observed thus by Karl von Clausewitz in his classic early 19th century analysis of political-military affairs, aptly-titled, On War: "|W|ar is a continuation of politics by other means." In short, "[djuring war or peace, the military capabilities of international actors make up a significant portion of an actor's power potential." (Papp, op.cit., p. 395). "Subjectively, the power that an actor derives from its military capabilities is determined by its own and others' perception of capabilities. No one knows for certain if the UN would have the command, control, and communication abilities to launch simultaneously a hundred or more of [its] ICBMs, but the perception exists that | i t | doles). At least in

*"Cf. The World Almanac, 1964, p. 92.

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part because of this, the U.S. [is) recognized as [a] superpower." (Ibid., p. 396). Of course, military capabilities do not translate directly into increased power potential. Powerful weapons used unintelligently add little to a State's power. (Ibid., p. 431). The case of the Soviet involvement in Afghanistan is a practical manifestation of this new political thinking, i.e., that whatever the causes of conflicts, they cannot be eliminated by military means. (See Alexander A. Bessmertnykh, "Foreign Policy — A New Course," Perestroika Annual: Two, Futura: London, 1989, p. 55). The classic case, of course, was the triumph of democracy during the mid-'80s in the Philippines. In Manila, Cory Aquino was chosen over Marcos after "people power" in the streets forced him to call free elections. Clearly in this situation, the might of Marcos' military was "no match" to the citizen's cry for his "blood." Recall too that late in 1989, President Bush ordered American jet aircraft to patrol the skies over Manila to keep anti-Aquino military rebels from victory in their coup attempt. Bush's action raised the interesting question of whether it was proper for the U.S. to intervene militarily in a foreign country in the "good" cause of defending democracy. (Tad Szuls, Then and Now: How the World Has Changed Since WW II [19901 p. 488).

COLLECTIVE SELF-DEFENSE In the not-so-distant past, regional blocs both on the part of the Western democracies and on the part of Russia and her "captive States" have been formed ostensibly for collective self-defense. On the part of the Democracies we have: (1)

The N A T O — North Atlantic Treaty Organization;

(2) The C E N T O — The Central Treaty Organization (formerly the Baghdad Pact or the METO — Middle East Treaty Organization); '3) The A N Z U S — That which was organized by Australia, New Zealand, and the United States in a Treaty signed at San Francisco on Sept. 1, 1951 (also known as the Pacific Security Treaty); of indefinite duration, each signatory agreed to 'act to meet the common danger' in the event of attack on either metropolitan or island territory of any one of them, or on their armed forces, public vessels or aircraft in the Pacific.

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In 1951, the U . S . - J A P A N E S E S E C U R I T Y T R E A T Y had somewhat alarmed Australia and revived wartime apprehensions about Japan. A N Z U Z reassured Australia and New Zealand, and was the first collective security treaty in the Pacific. In reality, ANZUS was aimed less at defense against a rearmed Japan than concerns over Communist expansionism in Southeast Asia. The fall of China in 1949, and the outbreak of the K O R E A N W A R in 1950, created considerable anxiety in Australia and New Zealand. The treaty has come under severe strain since New Zealand adopted a non-nuclear defense policy in 1986. (4) The organization created by the "Treaty of Economic, Social and Cultural Collaboration and Collective Self—Defense" signed at Brussels on March 17,1948; (5) The European Defense Community — the B E N E L U X (Belgium, Netherlands, Luxemburg); and (6) The SCEN — Society of Captive European Nations (a secret underground society formed by States suffering under Communist oppression — and designed to one day overthrow the Communists). THE WARSAW PACT (now TERMINATED) On the part of Russia and the Iron Curtain (Satellite Europe), we have the Warsaw Pact of May 14, 1955 designed for collective self defense of the Communist countries against the alleged aggression of Western Democracy. The following signed the Warsaw Pact: 1. 2. 3. 4. 5. 6. 7. 8

Bulgaria Albania Czechoslovakia East Germany Hungary Poland Rumania Russia (USSR)

It should be noted that Yugoslavia under Marshal Tito was not a signatory to the Warsaw Pact. Please bear in mind also that between Red China and Russia, a "Treaty of Friendship, Alliance and Mutual Assistance" (the

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Si no-Russian Alliance) exists. This treaty was entered into on February 14, 1950. Nevertheless, March 31, 1991 marked the date the Warsaw Pact was laid to reBt. Harry Schleichter of Stuttgarter Nachrichten, wrote: "Not a drum was heard, not a funeral note as its corpse to the ramparts was carried. At a subdued ceremony in Budapest, foreign and defense ministers of the Warsaw Pact States formally agreed to wind up the pact's military structures at the end of March. "Founded in 1955 as a counterpart to N A T O when the Federal Republic of Germany joined the North Atlantic pact, the Warsaw Pact, which was to be based on friendship, cooperation and mutual assistance, has passed away quietly at the age of 36. Next to no-one, other than a handful of Soviet generals, is likely to have shed a tear on its deathbed. Its heirs are likelier to rub their hands in satisfaction or glee — even though the pact's political structure is to be maintained until the beginnings of 1992. The signing of the military death certificate merely followed multilaterally what began at the end of 1989 in Central and Eastern Europe when communist systems in countries bordering on the Soviet Union colapsed. The evaporation of ideological and political points held in common and the demise of (East Germany) deprived the Warsaw Pact of any sense or reason for its survival. Its true role was that of a means of imposing Soviet discipline on unruly members, as was seen soon after it founded, during the Hungarian uprising. "Abolition of the Warsaw Pact is unlikely to be the last move in the process of security and military reorganization in Central and Eastern Europe. The political vacuum that has risen in Eastern Europe with the demise of the one pact seems sure to trigger further on the subject." THE NATO The North Atlantic Treaty Organization ( N A T O ) is the principal result of the North Atlantic Pact, a treaty signed at Washington on April 4, 1949 among the various nations of the North Atlantic Area, where the parties agreed in Art. 5 that an armed attack against one or more of them in Europe or in North

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America shall be considered an attack against all of them. Consequently, each signatory will assist the State or States attacked in restoring and maintaining peace and security in the North Atlantic Area — even thru the use of armed force. Art. 5 states further that "any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security." Note that this is in accordance with Art. 51 of the UN Charter. Interestingly, Art. 10 allows accession by any other European State — if unanimously invited by the parties. It should also be observed that under Art. 13 — "after the Treaty has been in force for 20 years, any Party may cease to be a party one year after its notice of denunciation has been given to the Government of the United States of America, which will inform the Government of the other Parties of the deposit of each notice of denunciation. However, France under President Charles de Gaulle decided to withdraw from the Treaty even before the end of said 20 year period." The N A T O , of late, has drafted a 30-page document which contains military guidance for implementing the new strategy agreed at a ( N A T O ) summit in Rome in December 1991. The new strategy allows the use of nuclear weapons first to end a war, although atomic weapons should be used selectively to hit military targets, preferably on enemy territory. Known as MC-400, the document recommends hitting high priority military targets, especially on an enemy's home territory, using either nuclear aircrafts bombs or missiles launched from submarines or ships. For one, conventional forces may not be enough to fend off an aggressor in the future and that nuclear arms make the risks incalculable for any attacker. Thereupon, nuclear arms should be used especially in an initial strike, in a way that is constrained, discriminate, and measured. The document, detailing NATO's military stratgey for conventional and nuclear forces in the post-Cold War era and approved by defense ministers, says the alliance now faces risks from instability in a variety of areas, including the former Soviet Union and the Middle East. Accordingly, the alliance's much-reduced nuclear arsenal is chiefly a political weapon, that the arms will remain under strict

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political control and that the likelihood of their use is now very remote with the end of East-West confrontation. And this could be considered in a selective way to end a conflict, by convincing an attacker that the cost of continuing the war would be too great. Thus, the deterrent value of nuclear weapons continues to underpin NATO's entire strategy, geared to the defense of its 16-member nations. N A T O has pledged to reshape its nuclear strategy after the Warsaw Pact collapse and some elements have been changed from the old policy of "flexible response" dating from the 1960s. In fact, the alliance has agreed to withdraw and destroy all U.S. short-range nuclear missiles and artillery shells in Europe, leaving just 700 nuclear aircraft bombs on the continent. NATO has also dropped rigid targetting plans for nuclear weapons. Moreover, the new strategy strengthens the concept of political power control over the arms and forbids their use to win on the frontline battlefield, which the old strategy allowed as a way of dealing with a massed attack from the Warsaw Pact (now defunct). That policy caused huge problems in Germany, the Cold War frontline, where a strong anti-nuclear movements has fluorished — partly because of the knowledge that German towns and cities would be devastated by short-range nuclear weapons. Question: How can a country be the first to use nuclear weapons as a last resort? Answer: The document says N A T O members must continue to share the political burden of basing the weapons and that all countries involved should take part in decisions to use them. Countries where bombs are based or which have the aircraft needed to deliver them include the U.S., Britain, Belgium, Italy, Germany, Greece, Netherlands, and Turkey. Truth to tell, some of the U.S. and British neclear bombs are almost obsolete, despite a modernization program. Thus, nuclear weapons should be kept up to date where necessary so they can hit a variety of targets at all ranges. France, along with the U.S. and Britain, is the third NATO member with nuclear arms, but it is independent on defense matters and not involved in alliance defense planning. Parenthetically, the N A T O and former Warsaw Pact foes, in a partnership known as the North Atlantic Cooperation Council (NACC), signed an agreement on June 5, 1992 setting limits on the amount of non-nuclear military weaponry that each country (on either side) may possess. As reported thus by William Drozdick of the Washington Post Service (cited in the International Herald Times Tribune, June 6-7, 1992, pp. 1,5): "The treaty was originally signed in Paris in November 1990 but languished because of the

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collapse of the Soviet Union. But the deadlock was broken in May 1992 when four former Soviet republics — Russia, Ukraine, Belarus and Kazakhstan — resolved a protracted dispute on how to divide up the vast arsenal left over from the days of the Communist empire. The conventional arms accord follows another pact between four former Soviet republics on how to apply the terms of the U.S.-Soviet strategic arms agreement to nuclear weapons still on their territory. They approved plans to destroy nearly 40% of long-range nuclear weapons and carried by missiles, bombers and submarines. In the case of the conventional arms deal, Russia will be allowed to keep about half the 13,150 tanks, 13,175 artillery pieces; and 20,000 armored vehicles under the accord."

MIDDLE EAST SCENARIO Like the bolt of summer lightning that suddenly illumines the evening landscape, the January 1993 Iraqi invasion of Kuwait again has revealed much about what may lie ahead. The Iraqi crisis had demonstrated that the Middle East will be of critical importance in the post-Cold War era. There are reasons beyond the threat of the oil fields that will ensure this. Five reasons are given by Steven L. Spiegel: First, the Middle East will continue to be a place where the most advanced non-nuclear weapons are deployed and at times employed. Chemical weapons, long-range ballistic missiles, and the most advanced jets and tanks have already been introduced into the region. Nuclear weapons may soon be added. Second, the spread of Islamic fundamentalism, the collapse of Soviet authority throughout its empire, and the prevalence of weak regimes from the region to South Asia will be sources of instability and international conflicts regardless of Iraq's future role in the region. The Soviet Union and the Indian-sub-continent [is now on its way to disintegrating] into a series of newly-independent States, from Georgia in the West to Kashmir in the east, adding 50 million Muslims and other peoples to the Middle East. In particular, if Armenia and Azerbaijan become independent, the conflict between them will have considerable ramification for the Middle East, especially for Iran and Turkey. Third, the U.S. is going to require a back-up area in the wake of the negotiated withdrawal of the bulk of its troops from the

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European theater. The lose of North Atlantic Treaty Organization ( N A T O ) baaes, because of agreements with the Soviet or domestic opposition in particular countries, will add to this pressure. The Southern Mediterranean littoral will thereby become critical as a contingency area in case of a reversal of Soviet policy, a deterioration in the evolution of a democratic-united Germany, or a crisis in Eastern Europe. Fourth, post-Cold War administrations will have to decide whether to continue and expand strategic cooperation with Israel, including collaboration in intelligence, anti-terrorism, and antidrug efforts; the utilization of Israeli port facilities at Haifa; the refinement and exercising of desert fighting skills; maintenance of American equipment, prepositioning of material, and upgrading of older equipment; joint Mediterranean exercises; food, R&R, and medical services for U.S. troops stationed in the area; and research and development conventional weapons — all these will likely continue. In fine, Israel is a democratic model for many of the governments in Eastern Europe and the Third World struggling to break loose from the shackles of communism and authoritarianism. This new attractiveness i6 confirmed by the country's sudden popularity in several Eastern European countries. A senior break between Washington and Jerusalem now would be strange indeed, running counter to the American commitment, implicit if not explicit after the Cold War ideological triumph, to support the evolution of democratic government wherever they exist or may arise. (See Yossi Melman, "Ha'aretz" (Some Sensitive Spots: The Israeli Question), acted in World Press Review, Dec. 1991, p. 14). THE SEATO (now TERMINATED) The Southeast Asia Treaty Organization (SEATO) was the regional bloc formed by the Manila Pact or the Southeast Asia Collective Defense Treaty of September, 1954. Under the terms of the treaty, particularly Art. IV thereof, an aggression against any of the signatories (or against any other State or territory that might thereafter be designated by common agreement among them) would be considered as endangering their peace and safety. In such an event, therefore, they obligated themselves to act to meet the common danger in accordance with their constitutional process. In case of threat other than by armed attack, or in case any

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fact of situation endangered the peace of the area, the Parties were supposed to consult with one another immediately to agree on the measures which should be taken for the common defense. It will be observed that the terms of the N A T O are more vigorous — an attack against one is an attack against all; under the SEATO the common danger will be met in accordance with "constitutional processes." The members of the SEATO while it existed were the following: (1)

Australia

(2)

France

(3)

Great Britain

(4)

New Zealand

(5)

Pakistan

(6)

Philippines

(7)

Thailand

(8)

United States

Under Art. V I I of the Treaty, any other State in a position to further the objectives of the Treaty and to contribute to the security of the area might, by unanimous agreement of the Parties be invited to accede to the Treaty. Any State so invited might become a Party to the Treaty by depositing its instruments of accession with the Government of the Republic of the Philippines. The latter should inform each of the Parties of the deposit of such instrument of accession. After some years, however, the S E A T O dissolved itself. THE CENTO (now TERMINATED) The C E N T O was the Central Treaty Organization formed in the Middle East for the purpose of collective self-defense against the threat of Communism. The members were: Turkey, Iran, Pakistan, and Great Britain. The U.S. later joined as an associate member. The original name was the Baghdad Pact of 1955 which organized the METO (Middle East Treaty Organization). The former Baghdad Pact had all the present members of the C E N T R O plus Iraq. The Treaty provided for mutual cooperation for security and defense but had no central command structure for forces allocated to it. The fall of the Shah in 1979 led to the withdrawal of Iran,

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followed by the other regional members, and CENTO became defunct. QUERY Do these alliances really protect? Please observe, for instance, that while the Warsaw Pact protects the Russian satellites from the United States, no such protection is offered against Russia itself. 45

WHY ALLIANCES EXIST In the opinion of then Philippine Foreign Affairs Secretary Felixberto Serrano, "the members of the UN have implicit faith in each other's desire for world peace. But at the same time they realize the force of human susceptibility to committing mistakes, some of which could be in the form of armed aggression inspired by a miscalculation of the strength of the would-be victim and its determination to resist. The danger posed by this possibility has made some members see the necessity of taking measures calculated to give maximum feeling of safety either thru mutual protection or by an outright combination of strength. Quite a number of nations have chosen to stay away from military alliances, firm in their conviction that whatever protection might be afforded them by such alliances cannot offset the risk of being involved in a war not essentially theirs. On the other side are those who believe that a nation's policy of non-entanglement in military alliances does not constitute an impenetrable wall on the path of a belligerent if such path is seen as the shortest and easiest way to a military objective. [For one,] the Philippines believes that there is strength in union and there is security in collective strength." 48

DISARMAMENTS Quite a number of significant agreements for the limitation and control of armaments have been concluded, namely: i.

the Antartic Treaty of 1959

2

the Limited Test Ban Treaty of 1963

4

''See Jacobini, International Law, p. 66. '"Secretary (then) of Foreign Affairs Felixberto Serrano, "Alliances and Why They Eaist," Far Eastern Law Review. Vol. V I , No. 4. January. 1959, PP 435-436.

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3.

the Outer Space Treaty of 1967

4.

the Treaty of Tlatelolco of 1967

5.

the Nuclear Non-Proliferation Treaty of 1968

6.

the Seabed Treaty of 1971

7.

the Biological Weapons Convention of 1972

8.

the Chemical Weapons Convention of 1993

NON-PROLIFERATION OF NUCLEAR WEAPONS The need to halt the spread of nuclear weapons has been evident to many people from the early days of the nuclear age. The very first UN General Assembly resolution in January 1946 envisaged the elimination of such weapons from national arsenals. (Joseph Goldblat, Non-Proliferation: The Why and the Wherefore, Stockholm International Peace Research Institute, 1985, p. 3). The realization within the international community that a wider proliferation of nuclear weapons would pose a threat to world security has led to the development of a non-proliferation regime, encompassing myriad rules and institutions both national and international. Among these, the International Atomic Energy Agency ( I A E A ) , with its two elaborate systems of nuclear safeguards, fulfills an essential practical role. The pivotal place, however, belongs to the Treaty on the Non-Proliferation of Nuclear Weapons ( N P T ) , concluded in 1968, with a view to preventing the addition of new nuclear weapons The essential non-proliferation undertakings are contained in the first two articles of the N P T . Article I places the nuclear weapons States under the obligation not to transfer "to any recipient whatsoever" nuclear weapons or other nuclear explosive devices or control over them, and not in any way to "assist, encourage, or induce" any non-nuclear weapon-State to manufacture or acquire such weapons or devices. Article II pledges the non-nuclear weapon States, not to receive nuclear weapons or other nuclear explosive devices or control over them, as well as not to manufacture them or receive assistance in their manufacture. According to Article I I I , safeguard agreements must be concluded within prescribed time-limits. However, for as many as 40 parties, such agreements had not come into force by the end of 1984. At any rate, sageguards should enable detection of diversion

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of "significant" quantities of nuclear material from peaceful activities to the manufacture of nuclear explosive devices, as well as deterrence of diversion by creating the risk of "timely" detection. Nonetheless, the N P T requires safeguards to be implemented in such manner as to avoid hampering the economic or technological development of the countries party to it or international cooperation in the field of peaceful nuclear activities. Article IV of the N P T reaffirms the right of parties to develop nuclear energy for peaceful purposes in conformity with Arts. I and II of the Treaty and obligates those parties in a position to do so to contribute to such efforts in non-nuclear weapon-States. Under Article V of the N P T , the "potential benefits" of peaceful applications of nuclear explotions are to be made available by the nuclear weapon-parties to non-nuclear weapon parties under "appropriate" international observation. This promise was made in exchange for the renunciation by the latter States of the right to conduct any nuclear explosions, because there is no way to assure that a nuclear explosion has no military function. Article VI represents a counterweight to the obligations assumed by the non-nuclear weapon States. Article V I I of the N P T affirms the right of States to conclude regional treaties in order to assure the "total" absence of nuclear weapons in their respective territories. Thus far, the only such treaty concluded to constitute a nuclear weapon-free zone in a populated area of the world is the 1967 Treaty of Tlatelolco prohibiting nuclear weapons in Latin America. However, the ultimate goal of this Tlatelolco Treaty, that of military denuclearization of the whole Latin American region, has not yet been achieved. In Article V I I I , the N P T provides for periodic conferences to review the operation of the Treaty in order to assure that its purposes and provisions are being realized. For this purpose, three conferences have already been made (1975, 1980, and 1985). The N P T is unique in the sense that is prohibits the acquisition by an overwhelming majority of States of the most destructive retention of the same weapons by a few. However, the position of the non-nuclear weapon parties has always been to consider the NPT not as end in itself, but as a transitional measure aimed at facilitating nuclear disarmament. (Goldblat, supra, p. 4). Unlike many other multilateral arms control agreements, the NPT is not of permanent duration. In 1995, 25 years after its

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entry into force, a conference is to be convened to determine its future. The parties will then decide whether the Treaty should continue in force indefinitely, or be extended for an additional period or periods of time. "But nuclear disarmament must extend beyond the old cold-war adversaries if the U.S. and its allies want to renogitate the N P T — or the founding statute of the IAEA — to include greater powers to search installations and real punishment for treaty breakers, they must secure multilateral agreements rather than impose their will unilaterally. For a world free from the threat of further spread of nuclear weapons, that has to be a concession worth making." (Tom Wilkie, "Nuclear Proliferation," The Independent of London, cited by World Press Review, December 1991, p. 10). — oOo —

Chapter 6 THE SECOND FUNDAMENTAL RIGHT: THE RIGHT OF SOVEREIGNTY AND INDEPENDENCE

DEFINITION OF TERMS AND DISTINCTIONS

Sovereignty

is the supreme power of the State to command and enforce obedience; it is the power to which, legally speaking, all interests are practically subject and all wills subordinate. Indeed Prom the point of view of national law, it is in a sense absolute control over a definite territory. 1

Independence, upon the other hand, is freedom from external control in the conduct of external and internal affairs. Sovereignty is viewed from within (internal) — independence is viewed from without (external). Otherwise stated, if the sovereignty of a country within its territory is more or less recognized by other States, said country is referred to as independent.' 1

The essential attributes of sovereignty are: I'f) perpetuity or permanence (so long as the Stale continues to exist); * ( 2 ) ' exclusiveness or impenetrability (this means that generally all inhabitants, residents, and transients within a StaLe are subject to the exclusive jurisdiction of said State; no other State may exercise jurisdiction. This rule is subject to certain exceptions);

'(iarner. Political Science, pp. 238-239. •'Hi'c Ki'nwick, International Law, p. 146. 177

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(3) inalienability (sovereignty as such cannot be bargained away; in other words, a State ceaBCB to be sovereign from the moment it alienates such sovereignty); (4) unity (authority is indivisible: try to divide authority and the result will be inevitable chaos); and (5) comprehensiveness — (sovereignty, subject to certain exceptions, deals with all persons — natural or juridical — and with all property — artificial or natural — within the territory). QUERY: IN THE INTERNATIONAL LEGAL ORDER, IS A STATE REALLY SOVEREIGN AND INDEPENDENT? If by "sovereign*" we mean an unrestricted power to do whatever the State pleases, whether it be right or wrong, the "sovereignty" of a State \* r»rt.»inly incompatible with international law. The latter by imposing obligations on States necessarily restricts the power of the former. Hence, sovereignty, as the term is understood in international law (as distinguished from the realm of national law), cannot be considered in its original sense of supreme authority. Kelsen aptly observes: "As subjects of international rights, the States are subjected to international law, even if international law is considered to be part of national law. Here, the States as subjects of rights, are 'sovereign' as the individual is 'sovereign' under national law."* 3

The sovereignty and independence, therefore, of a State can not be considered absolute: certain restrictions enter into the picture — (1) limitations imposed by the international scheme of things (the very nature of membership in the Family of Nations), and (2)

limitations imposed by treaty stipulations.

As aptly put by the famous American President, John F. Kennedy "Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of I N T E R D E P E N D E N C E is here."

3

4

Kelsen, Principle* of International Law, p. 113. Kel»en, op. cit., p. 156.

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IMPLICATIONS FROM SOVEREIGNTY AND INDEPENDENCE Subject to the restrictions mentioned in the next preceding paragraph, the sovereignty and independence of a State: (1) enable it to determine its own form of government, draft and approve its own constitution, enact and administer its own laws; (2) allow it to enter into treaties and foreign relations on its own accord (even foreign alliances may be entered into, unrestricted by the national law of some other State); (3) make possible its own determination of national policies with respect to national defense, natural resources, immigration, currency, and the like; and (4) should make it free from intervention on the part of other States.

INTERVENTION IN GENERAL ,0ne of the greatest dangers to continued sovereignty and independence is,intervention by other States. Intervention has been defined b y ^ j a w r e n ^ a s "the interference by one State or group of States wit.htfTe~prnceedings of another State, endeavoring to .compel the latter to do something which if left to itself it would not do, or to refrain from doing something which if left to itself it would do."* Upon the other hand, Hall defines it as that which "takes place when a State interferes in the relation of two other States, without the consent of either of them, or when it interferes with the domesiic_.affairs. of another State imspective of the will of the latter, for the purpose of either maintaining or altering the actual condition of things within." 6

KINDS OF INTERVENTION, W)

Internal and External Intervention.

(a) Internal intervention — is the interference by one State in the purely domestic affairs of another State.

s

Lawrence, Principle* of International Law, p. 120. "Hall, International Law, p. 297.

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(bK" External intervention — is the interference by one State in the foreign relations of another State. (2) Individual and Collective Intervention. (a) Individual intervention — exists when only one State interferes. (b) Collective intervention — exists when two or more States interfere as a group. (3)

Diplomatic and Armed Intervention.

(a) Diplomatic intervention (also called "intercession") — is interference thru diplomatic channels. (b) Armed (sometimes called "punitive") intervention — intervention thru the use of armed forces. It would seem that today armed intervention is unlawful under at least two (2) provisions of the UN Charter: (1) Art. 2, par. 3 — "All members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered." (2) Art. 2, par. 4 — "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations." In recent years, however, the principle of non-intervention has been undergoing reexamination. According to some observers of the international scene, if a State will not intervene in an unequal conilict, its "neutrality" in effect tends to favor the stronger belligerent. A QUESTION OF INTERVENTION The case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America, International Court of Justice, Registry of the ICJ Communique 86/8, June 27, 1986), tackles a very important issue of international law — intervention. The facts are as follows: The U.S. has acted against the Republic of Nicaragua, in breach of its obligation under customary

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international law not to intervene in the affairs of another State, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting, and aiding military and paralimitary activities in and against Nicaragua. Also, the U.S. in 1983 produced a manual entitled Operaciones sicologicas en guerra de guerillas, and disseminated it to contra forces, and in the process, encouraged the commission by them of acts contrary to general principles of humanitarian law. Because of the injury caused to Nicaragua by the breaches of obligations under customary international law, the U.S. is asked to make reparation by way of damages to the injured party. According to the International Court of Justice, the U.S. is guilty of intervention in the affairs of Nicaragua. Conversely, the principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference. Expressions of an opinio juris of States regarding the existence of this principle are numerous. This principle, stated in its own jurisprudence, is reflected in numerous declarations and resolutions adopted by international organizations and conferences in which the U.S. and Nicaragua have participated. As to the content of the principle in customary law, defined are the constitutive elements which appear relevant in this case: a prohibited intervention must be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely (e.g., the choice of a political, economic, social and cultural system, and formulation of foreign policy). Intervention is wrongful when it uses, in regard to such choices, methods of coercion, particularly force, either in the direct form of military action or in the indirect form of support for subversive activities in another State. On the question whether, if one State acts toward another in breach of the principle of non-intervention, a third State may lawfully take action by way of countermeasures which would amount to intervention in the first State's internal affairs, surely this would be analogous to the "right of self-defense" in the case of armed attack, but the act giving rise to the reaction would be lees grave, not amounting to armed attack. Under international law in force today, StateB do not have a right of "collective" armed response to acts which do not constitute an "armed attack." Whether

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self-defense be individual or collective, it can only be exercised in response to an "armed attack." This is to be understood as meaning not merely action by regular armed forces across an international border, but also the sending by a State of armed bands on to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces. The concept of "armed attack" does not include assistance to rebels in the form of the provision of weapons or logistical or other support. In customary international law whether of a general kind or that particular to the inter-American legal system, there is no rule permitting the exercise of collective self-defense in the absence of a request by the State which IB a victim of the alleged attack, this being additional to the requirement that the State in question should have declared itself to have been attacked. In short, the justification of collective self-defense maintained by the U.S. in connection with the military and paramilitary activities in and against Nicaragua iB rejected. While the U.S. is guilty of producing and disseminating via a manual encouraging acts contrary to law, there is, however, no basis for concluding that any such acts which have been committed are imputable to the USA as acts of the United States. Anent the matter of reparation, the International Court of Justice held that: "The Court is requested to adjudge and declare that compensation is due to Nicaragua, the quantum thereof to be fixed subsequently, and to award to Nicaragua the sum of $370.2 million as an interim award. After satisfying itself that it has jurisdiction to order repatriation, the Court considers appropriate the request of Nicaragua for the nature and amount of the repatriation to be determined in a subsequent phase of the proceedings. It also considers that there is no provision in the Statute of the Court either specifically empowering it or debarring it from making an interim award of the kind requested. In a case in which one Party is not appearing, the Court should refrain from any unnecessary act which might prove an obstacle to a negotiated settlement. The Court, therefore, does not consider that it can accede at this stage to thiB request by Nicaragua." As a final point, the Court recalls to both Parties their obligations to seek a solution to their disputes by peaceful means in accordance with international law.

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In the case at bar, the Court has already taken note of the Contadora process, and of the fact that it had been endorsed by the United Nations Security Council and General Assembly, as well as by Nicaragua and the U.S. It recalls to both Parties to the present case the need to cooperate with the Contadora efforts in seeking a definitive and lasting peace in Central America, in accordance with the principle of customary international law that prescribes the peaceful settlement of international disputes, also endorsed by Article 33 of the United Nations Charter. NATO-RUSSIAN UN INTERVENTION IN BOSNIA Many are of the belief that a NATO-Russian UN intervention may finally end the war in Bosnia. Considering the matter as one of urgent priority, Jane M.O. Sharp and Vladimir Baronousky said: "To end the war in Bosnia by effective military intervention has become a matter of urgent priority. The diplomatic effort has stalled for want of a credible enforcement plan, little humanitarian aid is getting thu, and UN peacekeeping forces with their open lines of communication and restrictive rules of engagement can do nothing to solve the underlying aggression. "U.S. President Bill Clinton halsl argued that N A T O is the only military organization capable of effective intervention in Bosnia. France, however, blocked any action by N A T O outside the immediate N A T O area, and Germany was unwilling to provide troops. Even if those three N A T O powers, who also 6erve a6 three of the five permanent members of the UN Security Council, agreed to intervene under UN auspices, without the Russians, the intervention could be seen by Serbs as directed against them. "In the worst case, this could provoke a strong reaction in Belgrade, galvanizing what are now undisciplined Serbian irregulars into a cohesive force that might perpetrate even greats horrors in Bosnia than Serbs have already committed. In other worda, the intervention might be closer to the Afghan than Gulf model, triggering a determined and protracted guerilla war. If this were (he result, not only would peace for the Bosnians be harder to achieve, but the repercussions could

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take a dramatic turn in Russia itself, both domestically and in terms of foreign policy. The conservative-nationalist faction of the political class could exploit the situation to make the official line in Moscow openly anti-Western, even actively supporting Serbs as new 'victims of agression' diplomatically, economically, and militarily. T h i s could take us back to the Cold War antagonisms that the Russian foreign minister Andrei Kozyrev warned against at the Conference on Security and Cooperation in Europe Meeting in Stockholm in December 1992. Thus, the sine quo non for a successful intervention, one that brings both peace and justice, that will be effective in the short run, appears to be the involvement of Russian forces with N A T O forces on the ground. This is the best chance to discipline the Serbian warlords — both by demonstrating Russian solidarity with the West in the interest of an orderly settlement that protects Muslim and other minority rights, and by reassuring Serbs that they would be treated fairly. 1P]ropose[d], therefore, not [as] an exclusively N A T O force, even though de facto, [where] the opera tjon[sl would be directed from N A T O headquarters, [would be] a UN force under joint Russian, U.S., British, and French command, with the kind of liaison between units that we had in World War II. "A first task of such an intervention force should be to close the external borders of Bosnia to the influx of additional Croatian and Serbian personnel. The intervention force should then relieve Saravejo and all other areas currently under siege by Serbian forces, disarm all warring factions, and restore order to reverse as far as posssible the effects of'ethnic cleansing.' Ideally, it should also release all prisoners, set up safe havens and deliver food, .fuel, and medical supplies. "How many troops would be required and precisely how they would operate is for military expertfs] to decide, but the political goal should be clear: to restore and maintain order in Bosnia until the different ethnic and religious groups there could rebuild enough trust and confidence in each other to work out their own modus vivendi. The best way to buy time for this confidence-building [measure] would be to make Bosnia a UN protectorate secured by multinational military forces."

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THE SWISS BANK SECRECY Lfi/tt With former Philippine President Ferdinand E. Marcos now dead, recovery of his "soncealed fortunes" in Swiss banks is viewed with caution. Reason: Swiss laws and judicial proceedings and the nature and complexity of the Swiss banking system have made virtually impossible to even ascertain the existence of an account; for a numbered account does not bear the name of the depositor As is now widely-accepted, Switzerland has formulated its banking privacy into the most stringent law on the subject in the world. Known as the 1934 Bank Secrecy Act, updated in 1971 (roughly equivalent to the Philippine Law on Secrecy of Bank Deposits, Republic Act No. 1405 [as amended]), this law and the practice of numbering accounts had made Switzerland both famous (and infamous) and wealthy, making several million persons more confident about their financial resources. ' Article 49 of the law reads: "Whoever divulges a secret entrusted to him in his capacity as officer, employee, authorized agent, liquidator or commissioner of a bank, as a representative of the Banking Commission, officer or employee of a recognized auditing company, or who has become aware of such a secret in this capacity, and whoever tries to induce others to violate professional secrecy, shall be punished by a prison term not to exceed six months or by a fine not exceeding 50,000 Swiss francs. If the act has been committed by negligence, the penalty shall be a fine not exceeding 30,000 SwisB francs. The violation of professional secrecy remains punishable even after termination of the official or employment relationship or the exercise of the profession." The Swiss bank and commercial secrecy laws are based upon the national policy that individuals and companies have the fundamental right to be free from invasion of privacy. Bank secrecy is protected by Art. 47 of the Swiss Federal Banking Law. Commercial secrecy, such as the obligation of a Swiss portfolio manager to keep information about its client confidential, is founded upon three (3) separate factors: (1) the right of the client to personal privacy under Art. 28 of the Swiss Civil Code; (2) the contractual relationship between the Swiss company and its client under Art. 398 of the Swiss Federal Code of Obligations; and (3) several provisions of the Swiss Penal Code, such as Arts. 162 and 273, which make it a criminal offense to divulge secret information or to intrude into the sphere of privacy without lawful authority. Under these separate principles, the Swiss entity may not

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divulge its client's business secrets, such as investment information, the identity of the principals of the Swiss company, and details of business arrangements with its client without the client's approval. A breach of this duty could result in civil and criminal sanctions being imposed upon the Swiss entity. However, the law provides for judicial I N T E R V E N T I O N under specific criteria in a criminal case or in order for a foreign government, such as the United States thru the agency of the Securities and Exchange Commission (SEC), to obtain otherwise secret information. Quite clearly, this privacy has attracted many persons of doubtful intentions who have made the system work to hide illegal gains. Thi6 had led to some highly-celebrated court cases, all of which served to focus the world's attention on Swiss banking secrecy. The most noteworthy case in recent memory involving Swiss bank secrecy laws was the (United States') SEC's action involving insider trading in Santa Fe International Corporation. (SEC v. Certain Unknown Purchasers of the Common Stock of and Call Options for the Common Stock of Santa Fe International Corp.,No. 81 Civ. 6553 [S.D.N.Y. 1981]). In the Santa Fe case, the SEC invoked the provisions of the U.S.-Swiss Mutual Assistance Treaty, which went into effect in January, 1977 to obtain information it needed regarding certain secret SwisB bank accounts. Although it took two years for the SEC to obtain the information, the case signifies that the SEC and Swiss authorities can cooperate in the enforcement of U.S. Securities laws. The SEC does not freeze the assets only of suspects whose identities it knows. In cases where nominee accounts are thought to be concealing insider dealers, it can petition U.S. courts to block the transfer of securities or cash until their beneficial owner stepB forward. Given the risk of having their gains frozen, insider traders in the U.S. now operate either in their own names, brazenly and on a grand scale, or thru nominees in small amounts, hoping that their deals will not attract SEC attention. Suffice it to say, there are other movements on the Swiss bank secrecy front, an important one within the country (Switzerland) itself. For instance, an amendment to the Swiss Federal Constitution calling for radical change in bank secrecy laws has been set in motion. Known as the "Banking Initiative," it requires for the first time that: (1) banks provide tax information on accounts upon request by Swiss authorities; (2) the authorities make such information available to foreign investors probing current export illegalities or tax evasion; and (3) banks give out more details on transactions, hidden reserves, and operations

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abroad. Perhaps the most that can be said about this range of recent developments in banking secrecy, for positive or negative reasons, out of legal or illegal motives, is a personal consideration which subdued uniqueness must be colored, considering all ramifications of the changes above. Thus, for more legal details, the following case citations regarding bank secrecy may be useful: U.S. v. FNCB, 396 F.2d 697 (2nd Cir. 1968); U.S. v. Field, 532 F.2d 404 (5th Cir. 1976); and Arthur Anderson & Co. v. Finesilver, 546 F.2d 338 (10th Cir., Dec. 1, 1976). In a deliberate move aimed at preventing abuses of the tight Swiss banking secrecy laws, the Swiss Bankers Association ("the Association") announced a series of measures. These include, inter alia; (1) to curb the right of bank clients to hide their identity behind lawyers; (2) to require banks to establish the identity of anyone making a cash transaction at the counter worth more than 100,000 francs, against the current thresh hold of 500,000 francs; and (3) to require banks to: (a) ascertain the identity of all clients not acting thru lawyers and (b) pledge to not actively help capital flight, or tax fraud. Thus, banks would face fines of up to 10 million francs in case of abuse. The steps follow renewed controversy over the use of secret Swiss bank accounts prompted by allegations that both Marcos and U.S. officials linked with the arms-for-Iran scandal had accounts here. (At any rate, the measures put forth by the Association have been incorporated in the Swiss Bank Secrecy Law, the latter having undergone its latest amendment on Oct. 1, 1987.) The bottomline is that secrecy definitely closes off one end of the transaction and an illegal act, the other — the pattern of almost every illegality involving Swiss (or, for that matter, any other country's) bank secrecy. If the illegal mind is creative enough, there is little that the various banks or brokers actually transferring funds can do to discover the illegality behind the transaction. TESTING SWISS' SINCERITY Since the Swiss courts, in light of recent developments, have decided to relax the rules on ex-President Marcos' reported Swiss accounts, the Swiss banks are obliged to release the money to the Ramos government. So what is keeping them? Is it still the same, old worn-out issue that the alleged offender (now deceased) was not given "due process" by MB own government? That is, whether the proceedings (on Marcos's ill-gotten wealth) in Manila are poli-

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tically motivated, in which case assistance by the Swiss government would be barred on whether the Ramos government guarantees the Marcos family's fundamental rights as established under the European Convention on Human Rights where Switzerland "was one of the signatories. Be it remembered that the Swiss Supreme Court, in its July 1, 1987 oral resolution, made it clear that Section 2 of the Swiss Federal Act on Assistance on Criminal Matters requires a minimal standard as required by the European Convention. Thus, even if criminal cases are indeed filed against the Marcoses, the Convention requires, inter alia, an independent and impartial judiciary; the presumption of innocence until proven guilty; the right to defend one's self or thru counsel of one's choice; the right to confront witnesses; and the right to enter the territory of one's own State. The Swiss Supreme Court ruled that all these matters will still have to be determined by the proper Swiss cantonal courts. In other words, unless the Swiss courts, cantonal as well as federal, are convinced that the fundamental and constitutional rights of Marcos are respected, no cooperation from Switzerland will be granted. In the Marcoses' case vis-a-vis alleged Swiss accounts, the Swiss banks may indeed have relaxed a little bit on their strict secrecy rules. Nonetheless, while a freeze order has been made on Marcos's Swiss bank assets since March 25, 1986 (based on Art. 102, par. 8 of the Swiss Constitution, which enabled the Federal Council "to act with discretionary powers in foreign policy matters in order to protect the interests of the Confederation"), it should not be forgotten that the Shah of Iran's case, while strikingly similar to that of Marcoses, had a different outcome. The Swiss authorities announced publicly in early 1979 that they could find no indication of the Iranian funds at any Swiss banks, but that the then Ayatollah Khomeni's government was "free" to pursue the matter in Swiss courts. That caustic remark notwithstanding, it is hoped the present Swiss government is not merely paying "lip service" to our noble cause when it declared to the whole world its intention to help the Philippine government in its efforts to recover Marcos' Swiss assets. To test the Swiss government's sincerity, it is well to apply a tactical move tested under the waters of international law. Until recently Legal Adviser of the Department of Foreign Affairs, Justice (ret.) Jorge R. Coquia, has proposed the idea of "jurisdictional

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cooperation and assistance among States." Coquia's thesis runs like this: "A strict interpretation of sovereignty and independence would allow a State to enforce its laws only within its territorial jurisdiction. However, with the development of the international community of nations, States seek mutual cooperation and assist* ance, not only in the maintenance and promotion of international peace and security, but also in the enforcement of their national laws in particular cases. Modern international law has developed at least four areas of jurisdictional assistance among states, namely: extradition, letters rogatory, prosecution of international offenses, and the enforcement of foreign claims." Regarding the last area mentioned, i.e., the enforcement of foreign claims, the Fidel V. Ramos government may as well adopt the procedure laid down in the "UN Convention on the Recovery Abroad of Maintenance Obligations." Under this convention, each state Party undertakes to establish an agency to transmit and receive claims. Under the Coquia proposal, both the Philippine and Swiss governments shall enter into a "mutual assistance agreement" wherein an "Arbitration Commission," or more specifically, as We would rather label it, an "Arbitral Awards ad hoc Group" will be formed, in order to determine exactly how much money the Marcoses and his associates really have in Swiss banks as well as in the other places like the Bahamas. The former will be afforded the opportunity to prove or disprove the existence or non-existence of the alleged ill-gotten bank accounts or laundered funds. If the Swiss government accedes to this mutual assistance agreement, the former's conditio sine qua non that the alleged money launderers be given "due process" will be subserved. Henceforth, there will be no more reason, real or imagined, for Switzerland to have any more qualms.

Throughout history, various States have interfered in the affairs of other countries. Among the grounds advanced for such intervention have been the following: (1)

payment of contractual obligations;

(2)

protectiori"of the rights of aliens; and

(3) justice, humanity, religion, the upholding of treaties, national prestige, legitimacy, economic interest, and balance of power.

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PAYMENT OF CONTRACTUAL OBLIGATIONS The practice of some creditor-States to forcibly intervene in r T ^ a f f a i r e ^ f the debtor-States resulted in the formulation of the ypraeo Doctritt* by Dr. Luis Drago, one-time Minister of Foreign Rehrtione-oTArgentina. According to Drago, the collection of public and private debts "cannot give rise to intervention, and much less to the occupation of the soil of any American nation by any European power." The conflict between the advocates of intervention and the J}ra_goiteS\led to the Porter Convention (Second Hague Convention of 1907), named after the U.S. delegate, General Porter: armed intervention for the purpose of collecting contractual debts cannot be allowed except: 7

(1) if there is a refusal or a neglect to reply to an offer of arbitration; or (2) if after accepting the offer at an arbitration, the debtorState prevents any compromise from being agreed upon; or (3) if after the arbitral verdict shall have been decreed, the debtor-State fails to abide by the award." The Drago Doctrine never had the force of international law because it was not looked upon with favor by many States, although of course, it was adopted, in a qualified sort of way, by the 1907 Hague Convention. At any rate, as has already been intimated, armed intervention today is, with few exceptions, disallowed under the U . N . Charter.

PROTECTION OF THE RIGHT OF ALIENS Carlos Calvo of Argentina enunciated the Q&lvo Doctrine — the doctrine to the effect that an alien againsV-whonrlT final judgment has been rendered should waive diplomatic~mtervention in his behall. The so-called Calvo Clause is a stipulation in_a_contract TpaTticularly, one of loan) which allows the application of the Uaivo doctrine. The doctrine has been received coldly because:

'Fenwick, International Law, p. 208.

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(1) there IB always the possibility that the tribunals of a State may fall short of the "international standard of justice" (due process of law as uniformly adhered to by civilized fora); and (2) it is a serious question whether a national can waive a right he does not theoretically possess, namely the right of his government to intercede for him (while the national may not be interested in his own claim, his country may, nevertheless, prosecute his claim in the interest of its other nationals). THE OTHER GROUNDS FOR INTERVENTION In 1815, the Congress of Vienna was called to settle the affairs in Europe after the downfall of Napoleon: one important matter was the punishment of France. To save France, the French diplomat Talleyrand, introduced the concept of "legitimacy" — the principle that the dynastic changes made by Napoleon were to be undone and the "legitimate" rulers and their descendants, restored to their respective thrones, from which they had been ousted by Napoleon. Under the theory of legitimacy, the monarchs of Spain, Holland (now called the Netherlands), the Italian States — and, of course, F R A N C E — were restored to their thrones. Two alliance systems were set up to enforce the Vienna settlement: the Holy Alliance and the Quadruple Alliance. The Holy Alliance was proposed by Tsar Alexander I of Russia and was at first composed of RusBia, Austria and Russia (later it was joined in by most European States); its purpose was the settlement of European affairs on the basis of Christian precepts: justice, charity, and peace. The Quadruple Alliance (Russia, AuBtria, Prussia, and Great Britain) under the directing genius of Prince Metternich (who had previously referred to the Holy Alliance as "verbiage") actually gave military teeth to the Vienna Settlement; it organized several international congresses (Aix-la-Chapelle, 1818; Troppau, 1820; Laibach, 1821; Verona, 1822); it took collective action to crush out liberalism, and even favored A R M E D intervention in the internal affairs of many States. To prevent the rise of another Napoleon, the alliance sought to maintain the B A L A N C E OF POWER — an aligning of States into groups such that the collective strength of one block would more or less be equal to the collective strength of another group: in this manner it was thought that international peace would be the order of the day.

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In the meantime, colonies in South America of the European powers had risen in revolt. To pursue the doctrine of "legitimacy" to its logical conclusion, the Quadruple Alliance desired to suppress these revolts so that the European rulers would be "restored" (for already the rebels in South America had set up their own governments.) The Alliance was now ready to invade South America. England, however, had by this time withdrawn from the Alliance because Great Britain felt that British economic interests could best be served by an independent South America. The invasion did not materialize for two (2) reasons: (1) Firstly, the Alliance needed the sea power of Britain, but England was unsympathetic; and (2) Secondly, on December 2, 1823, President James Monroe of the United States in a message to Congress proclaimed what is now known as the Monroe Doctrine. • ' T h e Monroe Doctrine laid down two (2) important principles of U.S foreign policy: (1) Firstly, America was for the Americans; hence the European powers should no longer regard any part in America as subject to future colonization; and (2) Secondly, since the United States had no desire to intervene in European affairs, it would regard European intervention in American affairs as an unfriendly act of aggression against the United States itself. In the words of Monroe himself: "In the wars of the European powers, in matters relating to themselves, jve have never taken any part, nor does it comport with our policy to do so. It is only when our rights are invaded or seriously menaced that we resent injuries or make preparation for our defense . . . We owe it, therefore, to candor and to the amicable relations existing between the United States and those powers to declare that we should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety. With the existing colonies or dependencies of any European power, we have not interfered, and shall not interfere. But with the governments who have declared their independence and maintained it, and whose independence we have, on great consideration and on juBt principles, acknowl-

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edged, we could not view any interposition for the purpose of oppressing them, . . . by any European power, in any other light than as the manifestation of an unfriendly disposition towards the United States." The Monroe Doctrine, supported as it was by the United States and by Great Britain, saved the new republics of South America; it also made quite hopeless the extension of Metternichism to the New World. Is the Monroe Doctrine a principle of international law? Although in the United Nations it is today regarded as a sort of regional safeguard for the maintenance of international peace and security, and although it seems to be the guiding maxim of PanAmericanism and the Organization of American States (OAS), still the Monroe Doctrine cannot be deemed a principle of International Law because of the following reasons: (1) States;

Firstly, it was enunciated by only one State — the United

(2) Secondly, it sanctions the intervention of the United States in the affairs of independent South American States; and 9

(3) Thirdly, under the doctrine a threat to peace is met by American unilateral action, not by the collective action envisioned by the Charter of the U N . In other words, it i6 merely a rule of "American International Law." 10

Corollary Principles: Certain corollary principles have been derived from the Monroe Doctrine: (1) The Polk Doctrine (1848) — President Polk interpreted the Monroe Doctrine as prohibiting even the voluntary merger of an American State with a non-American one. (2) The Cleveland Doctrine (1895) — President Cleveland was of the opinion that all boundary disputes in America (such as

s

See Hyde, International Law, p. 166. "'See Oppenheim, International Law, Vol. I, p. 263-264.

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that between British Guiana and Venezuela) ought to be settled by arbitration under the aegis of the United States. (3) The Theodore Roosevelt Doctrine (1904) — President Theodore Roosevelt said that the Doctrine of Monroe allowed the United States to exercise an international police power in the collection of debts. Brierly has been led to remark that "for a time it seemed likely that a doctrine which began as a claim to veto European intervention in Latin-American countries would be converted into a claim by the United States of an exclusive right to intervene in them itself. At times the development of something like an 'Economic Monroe Doctrine' has seemed probable and t h e United States has shown a tendency to resent the acquisition e v e n of economic influence in States on the American continent by any but her own nations. Recent administrations in the United States, however, have shown themselves desirous of removing the more extravagant of the corollaries which the doctrine has been supposed to involve for American foreign policy." 11

12

Recent Developments in Connection with the Doctrine: (1) The Japanese Monroe Doctrine — The Japanese following the example set by the United States announced the doctrine that s h e would resent the intervention of foreign powerB in her troubles with China (with particular reference to the Manchurian invasion by Japan) — even if the intervention should consist merely of technical or financial assistance, for then said aid could ultimately acquire political significance. Significantly, in a few years, Japan launched her attack against Pearl Harbor, opening the Pacific War phase of World War II. Japanese propaganda insisted that she had launched her attempt at a D A I T O A (Greater East Asia Co-Prosperity Sphere) because she believed that if America is for the Americans, Asia should be for the Asians. 13

(2) The British Monroe Doctrine — This was the doctrine stated in a British Note addressed to the United States Btating that there were certain regions of the world (including the territories around the Persian Gulf) the welfare and integrity of which constituted a vital interest for Britannic peace; that in view thereof,

"See Hart, The Monroe Doctrine, p. 241. Brierly, The Law of Nation*, pp. 289-290. "See Oppenheim, op. cit., p. 266. l3

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Great Britain could not conceivably allow any intervention in those regions by foreign powers. * 1

J2f The Four Freedoms of FDR — On January 6, 1941, President Franklin Delano Roosevelt of the United States announced to the world that if need be, the United States was ready to intervene in order to protect four essential freedoms: (a) jYU^tv (b)

the freedom of speech and expression; the freedom to worship God in one's own way;

(c)

the freedom from want; and

(d)

the freedom from fear.

(4) The Atlantic Charter — On Aug. 14, 1941, President Franklin D. Roosevelt of the United States and Prime Minister Winston Churchill of Great Britain issued aboard the U.S.S. Augusta a proclamation warning the world that their two countries were committed to the realization of the following principles: (a) there should be no territorial aggrandizement on the part of any State; (b) it is the sacred right of people all over the world to choose their own form of government (the right of national self-determination); (c) economic collaboration among the various States of the world should be the rule; (d) the freedom of the seas ought to be respected at all times; and (e)

the non-use of force in the settlement of disputes is

vital. (5) The Truman Doctrine — The Truman Doctrine was a proposal made by U.S. President Harry Truman in a message to the U.S. Congress on March 12, 1947 in which he pointed out the need of economic and military aid by the United States to Greece and Turkey. The region of aid waa later broadened to include the whole of Europe — "because it must be the policy of the United States to support free peoples who are resisting attempted subjugation by armed minorities or outside pressures." The doctrine

"Sea Oppenholiii, op. eh., p. 286

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may be said to be the first significant experiment in the United States policy of containment — to protect the Tree democracies against Communist guerrilla infiltration. The doctrine, however, is not a rule of international law, nor doeB it have the force of one. The doctrine has even been criticized in the United States itself as a plan to meet a threat to peace by unilateral action, rather than by collective action as contemplated under the Charter of the U N . The Truman Doctrine, nonetheless, would seem to be consistent with two corollary plans: (a) The Marshall Plan — the project to provide economic and financial assistance to countries of Western Europe for their rehabilitation: the ultimate end iB to prevent the further spread of Communism: ideas and ideals. (b) The U.S. Point Four Program — a scheme similar to the Marshall Flan, but here the area of concentration includes the less developed countries (LDCs) of Africa and the Far East. (The program includes the opening of markets and the improvement of roads and highways, inter alia. ) (6) The Eisenhower Doctrine — In January, 1957, President Dwight Eisenhower of the United States sent a message to the U.S Congress requesting economic and military aid for States against "Overt armed aggression from any nation controlled by international communism." The Duties-Eisenhower Doctrine (framed by President Eisenhower with the help of his Secretary of State John Foster Dulles) was an elaboration of the Eisenhower Doctrine in that it sought the aid not only for countries where there was overt armed Communist aggression, but also for those "in danger"o[ such aggression. It was precipitated by the crisis in the Middle East in 1958. The Arab countries in the Middle East while theoretically independent States, had long been under the economic vassalage of certain Western powers which had gained control of valuable oil concessions and other natural resources found in the region. The surge of Arab nationalism which naturally resented this foreign infiltration was soon felt, and throughout the territories, various revolts and counter-revolts became common occurrences. Russia surreptitiously encouraged the revolutions hoping perhaps that the Communist cause would be thereby aided: the State of Lebanon did not relish this indirect agression by the Communist; it, therefore, appealed to the United States for help. America accordingly sent U.S. troops to Lebanon, but subsequently proposed to

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the Security Council that help be sent to Lebanon in the form of UN troops so that the American forces could be withdrawn; the proposal, unfortunately, was vetoed twice by the Russian delegate. Soviet Premier Nikita Khrushchev accused America of intervention in the purely domestic affairs of Lebanon. Incensed by the charge, President Eisenhower answered the Russian charges of illegal intervention and aggression in the following letter: "On July 14, 1958, the lawful government of Iraq was violently overthrown. On the same day, a comparable plot against the Kingdom of Jordan was discovered and barely thwarted. The government of Lebanon, which had already for some months been subjected to indirect aggression from without, appealed to the United States for instant assistance in light of developments in neighboring Iraq and Jordan. It was felt that nothing less than immediate help would make it possible to preserve the independence and integrity of Lebanon. The United States responded to this appeal. Surely, it is not aggression to help a small nation preserve its independence. "The action of the U.S. in relation to Lebanon was fully in accord with the accepted principles of international law, and with the Charter of the U.N. The government of Lebanon was one which had been chosen by freely held, peaceful, nationwide elections only a little over a year ago. The appeal to the U.S. was made by the President of Lebanon with full approval of the Cabinet. When last week the Soviet Union introduced in the U . N . Security Council a resolution condemning our action in Lebanon — that resolution received only one vote — that of the Soviet Union itself. I also note that efforts were made within the Security Council to provide Lebanon with increased protection from the U . N . so as to preserve its integrity and independence, thus permitting U.S. forces to be promptly withdrawn. There were two such proposals, each defeated by the one vetoing vote of the Soviet Union. How does the Soviet Union reconcile its allegation that U.S. forces in Lebanon endanger world peace with the veto of those two proposals?" 1S

(7) The Khrushchev Doctrine — According to N i k i t a Khrushchev of Russia: 15

The Manila Chronicle, July 24. 1958.

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(a) continued occupation by the Allies of West Berlin, despite the Tact that the whole of Berlin (West and East Berlin) is found inside East Germany (a Communist State) is intervention, pure and simple, in domestic German affairs; (b) flight of foreign aircraft over Soviet territory without prior permission and clearance constitutes virtual espionage; (c)

there are three (3) kinds of conflicts:

(1) world war — which would for the present be suicidal in view of "nuclear horrors;" and (2) local wars — like the Suez and Cuban examples — these must likewise he avoided because "they could set off a world explosion;" (3) wars of "national liberation"— as in the case of Indonesia and Algeria — in such wars, Communism says Khrushchev, ought to intervene. NOTE: The Chinese Communists believe that Communism must intervene in all conflicts. While Russia and China — the two foremost exponents of Communism today — have a mutual defensive alliance (the Sino-Soviet Pact) binding each to help the other automatically in case of aggression, still it would seem that today in view of differences in dogma their relations seem to be "severely strained." As the German Iron Chancellor Otto von Bismarck had occasion to say in Berlin, 1872 — "No country has permanent friends — it has only permanent interests." 16

(8) The Kennedy Doctrine — According to President John F. Kennedy of the United States, any attempt on the part of Russia to interfere with the purely internal affairs of Cuba would be considered by the American people as an act of aggression against them and therefore a threat to the security of. the United States. Query X is a country where Parliament elects the President (Chief of State). Certain sectors of the country stage a revolt. Parliament holds an emergency session and approves a resolution of No

lc

See Arthur Gavson, "Long Lisl of Disagreements Clouds Sino-Sovn-L Alliance." The Manila Times, March 21. 1962.

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Confidence in the President. Members in Parliament voting for the resolution are evidently pro-rebel. The rebel sectors organize a government more or less complete in all its branches, that seek foreign aid. Questions: (a)

May the foreign aid be justified if given?

(b)

Is this foreign intervention? Reasons.

ANSWER: (a) In general, the foreign aid cannot be justified because this will be considered an attempt to prevent the people of a State from settling their own affairs and their own independence. Indeed the foreign aid would be incompatible with the right of sovereignty, independence, and jurisdiction of State X. According to Hall, the right of freedom from external interference is so fundamental a part of international law, and respect for said right is so essential that any action to place it in a subordinate position must be looked upon with disfavor." While it is true that prior to the UN Charter some States justified meddling "at the request of a party to a civil war or revolution," it would seem that today the foreign aid sought, if given in terms of force or the threat of force, is prohibited under Art. 2, pars. 4 and 7 because the case deals with "matters essentially within the domestic jurisdiction of any State." However, if the foreign aid sought is merely in the form of "mediation" by a foreign country, or even in the form of arms and food (so long as there is a threat to international peace and security) said aid could be justified under Chapter V I I of the UN Charter, provided that it be carried out under the supervision of the Security Council. (b) The giving of aid would be foreign intervention (indeed, an armed one, in case threat or the use of force accompanies it). (9) The Nixon Doctrine — This is the dictum enunciated in 1970-71 by President Richard Nixon of the United States to the effect that: (a) the U.S. will ordinarily no longer use land forces in affairs like the Vietnam War (note that sea and air forces are not discounted). "See Hall, International Law, pp. 337-338.

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(b) the U.S. will not participate in any ware except those brought about by nuclear powers using nuclear weapons. (c) the U.S. will continue to respect its existing treaty and alliance commitments. (10) The Carter Doctrine — This is the declaration by President Jimmy Carter in response to the Soviet invasion of Afghanistan in December 1979, i.e., he can commit the U.S. to use military force to protect its 'national interests' should the USSR threaten the oil-producing countries of the Persian Gulf region. (11) The Reagan Doctrine — This is the doctrine announced by U.S. President Ronald Reagan in 1984-1985 to the effect that the U.S. can best prevent a war with Russia if his country can build up a massive nuclear defense, complete with nuclear missiles and space satellites. Reagan, actor-turned politician, rode to the United States presidency in 1980 and left office in January 1989 with two-thirds of the American people approving his performance during his two terms. It was the highest rating for any retiring President since World War I I . His place in history rests on the short-and intermediate-range missile treaty consummated on a cordial visit to the Soviet Union that he had once reviled as an "evil empire." Its provisions, including a ground-breaking agreement on verification inspection, were formulated in four days of summit talks in Moscow in May 1988 with the Soviet leader, Mikhail S. Gorbachev. (Arthur P. Reed, Jr., "President of the U.S. — Ronald Reagan," The 1992 Almanac, p. 664). Internationally, Reagan confronted numerous critical problems in his first term. The successful invasion of Grenada accomplished much diplomatically. But the intervention in Lebanon and the withdrawal of Marines after a disastrous terrorist attack were regarded as military failures. Likewise, his foreign policy met stiffening opposition, with Congress increasingly reluctant to increase spending for the Nicaraguan "Contras" and the Pentagon and to expand the development of the MX missile. But even severe critics praised Reagan's restrained but decisive handling of the crisis following the hijacking of an American plane in Beirut by Moslem extremists. The attack on Libya in April 1986 galvanized the nation, although it drew scratching disapproval from the N A T O alliance. In a speech prepared for an address to Oxford University's debating society held on December 4,' 1992, Reagan (no longer the

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U.S. president) called for military intervention in former Yugoslavia, Somalia and Sudan. Said he: "Our multilateral organizations must declare ethnic cleansing and the slaughter of civilians by military forces totally unacceptable, and we must be prepared to put weapons behind our words. What I propose is nothing less than a humanitarian velvet glove backed by a steel fist of military force. Serbs must be given an ultimatum to cease the shelling of civilian populations and lift their deadly siege." Be it remembered that Reagan presided over a huge build-up of U.S. military forces during his presidency. (12) The Bush Doctrine George Herbert Walker Bush became U.S. President on January 20, 1989. In his first year, Bush, a World War II hero, had won plaudits at home and abroad for his confident, competent conduct at the N A T O 40th anniversary summit meeting at Brussels, the Paris economic conference, on his tour of Eastern Europe, and at the Malta conference with Gorbachev. Grave challenges in that year were the Lebanon hostage crisis and the ongoing war on the drug traffic. In 1991, the American President emerged as the leader of an international coalition of Western democracies, Japan, and even some Arab States that freed invaded Kuwait and vanquished at least for a time, Iraq'6 President Saddam Hussein and his armies. A nation grateful at feeling the end of the "Vietnam syndrome" gave the President an over-all rating of 89 percent in a Gallup poll in March after the end of the war. Nevertheless, there were nagging doubt6 about the Persian Gulf war, its motives and conduct, and about the ensuing refugee crisis. A major Bush accomplishment in 1991 was the Strategic Arms Reduction Treaty (START), signed in July with Soviet President Mikhail S. Gorbachev at their fourth summit conference, marking the end of the long weapons buildup. Succeeding events in the Soviet Union and the apparent disintegration of the Communist empire could only enhance his status. While it was Ronald Reagan who had spent the Evil Empire (the Soviet Union] into bankruptcy, its disintegration had happened on Bush's watch. It was he who got to negotiate an end to the 40vear balance of nuclear terror. And it was Bush who had inherited

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and fitfully UBed the resulting new opportunities open to America as the last real superpower on the planet; he had even got the Arabs and the Israelis into the same room, talking. (See W. Peter Goldman and Tom Mathews, "America Changes the Guard," Newsweek, November 16, 1992, p. 26). His apotheosis as world leader had mobilize[d] a global alliance against Saddam Hussein's invasion of Kuwait. It was a famous victory, and Bush had, for a season, become a[n] [international hero. (Ibid.) (13) The Gorbachev Doctrine — Credited for the collapse of communism in Eastern Europe as well as in the Soviet Union itself, he initiated, together with his American counterpart George Bush, the scaling down of nuclear armaments. He is most popular for his views ( a T I M E "Man of the Year") on Perestroika (restructuring) and Glasnost (openness) while earning the ire of Communist hardliners. NOTE: Russia successfully held a referendum on April 11, 1993 extricating itself from a constitutional crisis. The referendum called for Russians to decide who should rule the country, i.e., the government or Congress. Russia's Constitution currently severely restricts the authority of the government, forcing Russian leader Boris Yeltsin to rule largely by special powers since November 1991. Those powers expired on December 1, 1992. On this note, ex-President Gorbachev said Russia is in danger of breaking up, and he urged Boris Yeltsin not to move too quickly on reform despite his referendum victory. On Bosnia, Gorbachev blasted the West for hastening the breakup of Yugoslavia by quickly recognizing Slovenia and Croatia. He supported the Vance-Owen plan to set up ethnic zones in Bosnia and said UN troops should halt the fighting. The Soviet Union's last president agreed that the Russian Federation could split up as ethnic republics seek autonomy. "That danger exists," he said. Yeltsin "must advance prudently in the direction of a new federation." Commenting on the October 1993 coups in Moscow featuring Yeltsin vs. Communist hardliners, Gorbachev, said he did not believe Yeltsin had dictatorial tendencies. But he also said dictatorship "can happen if the president makes false conclusions from the results of the incident where the Army supported Yeltsin. The country is in transition. It must now make grave decisions, how to reform . . . privatization, what powers the regions should have.

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Are we going to put measures in effect in regions that voted against him?" Gorbachev said Yeltsin's allowing the Soviet Union to break up was his worst error. (14) The Clinton Doctrine — In the summer '92 issue of the Harvard International Review, Bill Clinton, then Arkansas Governor and now President of the United States, laid out his foreign policy in this wise: "The U.S. faces two (2) great foreign policy challenges today. First, we must define a new national security policy that builds on freedom's victory in the Cold War. The Communist idea has lost its power but the fate of the people who lived under it and the fate of the world will be in doubt until stable democracies rise from the debris of the Soviet empire. Second, we must forge a new economic policy to serve ordinary Americans by launching a new era of global growth. We must tear down the wall in our thinking between domestic and foreign policy. "[Thus.l we must pursue three (3) clear objectives: (1) We must restructure our military forces for a new era; (2) We must work with our allies to encourage the spread and consolidation of democracy abroad; and (3) We must reestablish America's economic leadership at home and in the world. u

[N]ow that the nuclear arms race has finally reversed its course, it is time for a prudent showdown in strategic modernization. We should stop production of the B-2 Bomber. That alone could save U.S. $15 to U.S. $20 billion (billion should be read as 1,000 million) by 1997. America needs to reach a new agreement with its allies for sharing the costs and risks of maintaining peace. We must take the lead now by expanding the Security Council and making Germany and Japan permanent members; by continuing to press for greater efficiency in UN administration; and by exploring ways to institutionalize the UN's success in mobilizing international participation in Desert Storm. One proposal worth exploring calls for a UN Rapid Development Force that could be UBed for purposes beyond traditional peacekeeping, such as standing guard at the borders of countries threatened by aggression; preventing attacks on civilians; providing humanitarian relief; and combating terrorism and drug trafficking. The U.S.

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needs to support evolving institutional structures favorable to countries struggling with the transition to democracy and markets, such as the new European Bank for Reconstruction and Development whose mission is to rebuild the societies of Central and Eastern Europe. We are right to encourage the European Community (EC) to open its doors to those societies by creating an affiliate status that carries some but not all of the privileges of memberships. "We must remember that even if the Arab-Israeli dispute were to be resolved tomorrow, there would be still ample causes of conflict in the Middle East; ancient ethnic and religious hatreds; control of oil and water; the bitterness of the have-nots towards those who have; the lack of democratic institutions to hold leaders accountable to their people and restrain their activities abroad; and the territorial ambitions of Iraq and Syria. No national security issue is more urgent than the questions of who will control the nuclear weapons and technology of the former Soviet empire. Those weapons pose a threat to the security of every American, to our allies, and to the republics themselves. "It may be bad politics to be for any aid program, but we owe it to the people who defeated Communism and the coup, and we owe it to ourselves. A small amount spent stabilizing the emerging democracies in the former Soviet empire today will reduce by much more the money we will have to commit to our defense in the future. And it will lead to the creation of lucrative new markets, which mean new American jobs. Having won the Cold War, we must not now lose the peace." THE CRISIS IN SOUTH VIETNAM — (AMERICAN AND PHILIPPINE "INTERVENTION"?) Many questions have been asked about Vietnam. Is the American participation in the affairs of South Vietnam intervention? Should the Philippines aid the South Vietnamese — and if so, what kind of aid ought to be given? If not, why not? Now then, for a brief look-see into the background of the Vietnam problem: (1) Before the war, Vietnam was a part of what was then known as French Indo-China; during the war, the Japanese con-

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quered the country; at the close of the war in 1945, the Japanese was driven out, and the region was restored to France.

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(2) However the surge of nationalism that had enflamed Vietnam during the war continued. The people rebelled against their French masters, finally defeating the mother country at Dienbienphu. 19

(3)

Both the last World War and the Resolution had in the

meantime divided the country into two hostile camps: the nationalists, and the communists. The first formed the majority in the south; the latter emerged the leaders in the north. (4)

Hence, the successful rebellion culminated in a divided

Vietnam. The solution to the conflict was reached at the Geneva Agreements of 1954: Vietnam was to be partitioned at the 17th parallel — North Vietnam was to be governed by Ho Chi Minh and his Communist subordinates; South Vietnam was to be ruled by Emperor Bao Dai, assisted by his Prime Minister, Ngo Dinh Diem. (Be it observed that in a subsequent national plebiscite, said Prime Minister was chosen by his countrymen to be President of T h e Republic of South Vietnam"). The two Vietnams, under the Geneva Agreements, were supposed to be under the supervision of the International Control Commission (this consisted of Canada, India, and Poland).

2 0

" T h e restoration was under the auspices of the British and the Nationalist Chinese Armies. " T w o big factors contributed to the French defeat: Firstly, France did not have the sympathy or its own people in France; secondly, Red Chinese Communists, relieved from the conflict in Korea, were able to give much needed support to the rebellion. T w o more reasons can be given: France never sent draftees to Vietnam; moreover then French Premier Pierre Mendes-France, even when the Geneva Conference was still pending, had already set a fined date for the withdrawal or French troops. This was a psychological error for conceivably this could give France no advantage in the settlement proceedings. It will be recalled that Mendes-France had previously declared that he would give himself four weeks to negotiate the peace settlement, and if it could not be achieved within that period, he would resign. (See Harvey Hudson, "U.S. May Lose War in Vietnam Just Like France Did in 1954,' The Evening News, March 18, 1966). '"See Sergio Osmena, Jr., "Vietnam and Common Sense, " The Manila Times, March 17. 1966, p 22-A. With reference to North Vietnam, it may be said that it has a Vietminh Constitution (adopted as of December 31, 1959). Their fundamental law is naturally premised on Communist principles and understandably, calls for the reunification of all Vietnam. A President elected by Parliament is the governing head. Assisting him is a Prime Minister appointed by the President (he was reelected on July 16, 1960). {The World Almanac, 1966. p. 419).

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(5) From the very start, the International Control Commission found it extremely difficult to perform its function of supervision in view of the non-cooperation of North Vietnam: for instance. North Vietnamese troops still in South Vietnam decided to go underground, instead of returning North; besides North Vietnam tried to prevent the exit from its own irgion of dissatisfied inhabitants. 21

(6) In 1956, both Vietnam* were supposed to undergo a nationwide election for the purpose of unifying. This did not go thru in South Vietnam because President Diem feared that unless international supervision could be effective, the elections would be a farce (the Communists being well known Tor their regimented voting). 22

(7) Angered, the North Vietnam Communists decided to force the issue in South Vietnam; first, they sent men, arms, and supplies to the south; secondly, their party formed a branch in South Vietnam (now popularly known in various names — People's Revolutionary Party, National Liberation Front, Viet Cong). 23

(8) The evident purpose of the Viet Cong is to seize control of the government: after "victory," it would set up the National Liberation Front as the "legitimate government" of South Vietnam. (9) Alarmed, the authorities of South Vietnam asked military assistance from the United States. This help was first given in 1960 by America in defense of the territorial integrity of the free people of South Vietnam. (10) While from 1960 to 1975 the United States was in South Vietnam, a serious political conflict arose in 1963 right in South Vietnam itself: the Buddhist groups charged the government with authoritarianism and brutality. This charge, coupled with the notorious delay in the grant of badly needed reforms paved the way for a military coup d'etat on November 2, 1963." The Ngo

"Despite the e(Torts o( the Communists, however, almost a million people were able to escape to South Vietnam. "Regimented Communist voting is common not only in Red China and Russia but also in all countries within the Iron Curtain — Satellite Europe Actually the Viet Cong had its nucleus during the Japanese occupation in much the same way as we in the Philippines saw the birth of the Huks during the dark days or the last war. I t is alleged by some observers that the coup was engineered with the help of the American C I A . ostensibly because President Ngo Dinh Diem was found unsatisfactory by the United States Government. M

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regime was overthrown, resulting in the death of President Ngo Dinh Diem, his brother and political adviser Ngo Dinh Nhu, and the execution for alleged criminal offenses of a third brother, Ngo Dinh Can, on May 9, 1964. 25

(11) A 23-man military junta, headed by Maj. Gen. Duong Van Minh, was then formed. This regime in turn was overthrown in a bloodless coup, the leader of which was Maj. Gen. Nguyen Khanh. This coup, which took place in early 1964, resulted in Gen. Khanh proclaiming himself Chief of State and later Premier. He also headed the military triumvirate that eventually evolved. However, on Sept. 8, 1964, the group elected Gen. Minh as its chairman.™ 2

(12) Communist aggression continued with unabated fury. ' In the meantime. Dr. Phan Huy Quat had succeeded as Prime Minister. Dr. Quat on April 14, 1965 addressed a letter to then Philippine President Diosdado Macapagal requesting economic and technical aid from the Philippines. The Philippines gallantly responded thru Rep. Act No. 4162, enabling it to send doctors, nurses and a military psychological warfare detachment (we appropriated one million pesos for the venture). 20

(13) Subsequently, additional aid was requested, this time South Vietnam specifically asked for an engineering battalion with security support. Thi6 unit was sought by the South Vietnam Minister of Rural Reconstruction, but the petition naturally had to come from the Prime Minister (this time, a new name had entered the scene. Nguyen Cao K y ) . The letter embodying the request was formally sent by the South Vietnam Ambassador to then President Ferdinand E. Marcos on February 2, 1966. M

(14) Later our Senators and Congressmen divided themselves into the "doves" and the "hawks" on the Vietnam aid bill (under 3 0

^ h e death or the President has up to this day remained a mystery: w.is it suicide, murder, or a plain case or homicide? ™The World Almanac, loc. at. " T w o U.S. destroyers were attacked allegedly by North Vietnamese P T. boats on Aug. 2-4 in the Gult or Tonkin. The United Slates retaliated with heavy air strikes against North Vietnamese torpedo bases, and oil storage depots ilbid.) S e e the Vietnam Memo or (then) Undersecretary Claudio Teehankee, The Manila Times. March 14, 1966, p. 18-A. " S e e Sergio Osmena, "Vietnam and Common Sense," loc. cit. " T h e "doves" were the * peaceful' lawmakers: they were against the sending of engineering battalions with security cover. The "hawks" were those who favored the bill. M

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the bill, we were supposed to send one or two engineering battalions with adequate security support; around 35 million pesos were involved in the appropriation measure). We heard of new demonstrations and a little "rebellion" in South Vietnam, more specifically in Da Nang, where the heart of the Buddhist rebellion was. Because this new strife threatened to topple the government, and because Premier Cao Ky had made a request, the United States for the first time openly took a hand in the Vietnam political crisis by furnishing air transport support. 32

Viewed from the facts hereinabove referred to, it does seem that the United States was N O T guilty of intervention in South Vietnam. Far from being a routinary civil war, the conflict in the country was really between the forces of Communism and the forces of Democracy, with Southeast Asia caught in the bloody cross-fire. Furthermore, America's participation was clearly upon the request of the then legitimate authorities themselves of South Vietnam. It is true that numerous regimes in the country had succeeded one another (much too rapidly for comfort), yet one significant thing stands out, namely, that all of said regimes had consistently asked for American help. ' x

Be that as it may, in the Jan. 23, 1971 issue of the EXAMINER, the late Vicente Vlllamin, brilliant Filipino writer, internationalist, commentator, and economist, and one time nominee and strong candidate for the Nobel Peace Prize, intoned: "By words and deeds. North Vietnam agrees with America 1% and disagrees 99%. The 1% is on the shape of the tables at which the members of the Paris peace conference sit. "North Vietnam has outsmarted America by being ruthlessly unreasonable, egoistic, and unreliable. This has been made possible with the aid of America's mistakes and omissions. Examples of these, being critiques and not criticisms, follow: 1America's purpose in Paris is peace. But North Vietnam's is not peace. It is to stop the American strategic

"Actually three bills of similar nature, had been proposed. The Daily Mirror, April 6. 1966. p. 1. R e d China has threatened to intervene forcibly should the United Suites bomb and/or invade North Vietnam. J3

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bombing of North Vietnam to prevent her troop infiltration into South Vietnam. America has underestimated that purpose. She took part in making the Paris talk last Tor two years, while the infiltration went on, and the enemy is still at it. 2. The U.S. CIA (Central Intelligence Agency as distinguished from K G B ) has endangered South Vietnam's security by telling the world, including the enemy especially, thru the N E W Y O R K TIMES, that her government is infiltrated by 30,000 enemy spies. That information should have been given exclusively to that government for remedial action. Its publication constitutes "aid and comfort to the enemy" in time of war. 3. The Vietnam question is difficult enough as it is to settle, but America would make it more so by proposing to include in the suggested agenda of peace the Cambodian and Laotian questions. In Cambodia, there is a civil war in which America is not involved. A takeover by the Communists in Laos is inevitable over any aid of America in its resistance. 4. America is fighting a "limited war" in Vietnam. Its basic idea is not to win the war, nor to bring it to North Vietnam territory, nor to destroy the enemy government. Rather, its object iB merely to defend South Vietnam on her territory from North Vietnam's attack to conquer her. 5. Before he became President of the U.S., Mr. Nixon, in two powerful articles in READER'S DIGEST, stated that the best solution af the war was to "win the war decisively." A practical economic solution is probable and should be officially considered. And still the war might just fade out by the weariness of the combatants. So far the military and political solutions have failed. (6) A t a coBt of more than 500,000 lives, North Vietnam killed 44,000 Americans. What good will it do her? Nothing. Will it make her win the war? No. Will it end the war? No. Will it make her prosperous? No. Will it make her great and happy? Never. It will only make her sorry for herself for sacrificing so much for the war for nothing whatsoever. Her best policy is to have peace. That is the path of progress and honor. The late President Ho Chi Minh would travel along that path. Hanoi should be with him now."

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NON-INTERVENTION BY U S. ARMED FORCES IN LOCAL RALLIES The Joint Chiefs of Staff of the United States Armed Forces once issued the following memorandum: "In applying policy in reference message to overseas areas, it must be recognized that a wellsettled principle of international law is that one nation may not interfere with the internal affairs of another. In all countries where our forces are stationed, we are guests of a host nation. In most countries, our rights and privileges are specifically delineated by Status of Forces Agreements. Our personnel do not have the right or privilege of participating in mass picketing, demonstrations, or any other group or individual action designed to alter the policies, practices, or activities of the local inhabitants, who are operating within the framework of their own laws. Accordingly, such actions by members of the U.S. Armed Forces in foreign countries are prohibited." * 3

CIVIL WARS AND UN INTERVENTION Can the United Nations do something to meet the challenge of breaking up civil wars? Or must the world continue to stand by and watch the carnage on television? Brian Urquhart, a former UN undersecretary-general, in a comment contributed to The New York Times and reprinted in the International Herald Tribune, Dec. 31, 1991-Jan. 1, 1992, p. 4, wrote: "Civil war with modern weapons is a brutal and destructive business that is often extraordinarily hard to stop. Until now such situations have generally been considered to be beyond the jurisdiction of international or regional organizations. Even the provision of international emergency humanitarian assistance has often proved difficult and controversial. In Yugoslavia, the pattern of non-intervention has been cautiously put aside. Both the European Community and the United Nations are involved in efforts to halt the

"Unclassified JCS Message 2190, Aug. 22, 1963, amplifying unclassified message DEF 344531, July 18, 1963. AJIL, Vol. 56. Jan. 1964, N o . 1. p. 167.

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fighting and foster the process of peaceful settlement. In Somalia, in an even more lethal civil war, there has been virtually no regional or international effort to stop the fighting, and it has become increasingly difficult to provide even minimum humanitarian relief. In other formerly proud States, sovereignty is also dissolving into anarchy, fueled by old feuds and grudges and an abundant supply of arms. In Yugoslavia, part of the problem is that without a ceasefire there can be no peacekeeping force, but without a peacekeeping force a ceasefire is unlikely. A similar impasse is likely in other places where there are international efforts to end civil wars. In this time of extraordinary change, would a new approach be justified and could it be agreed on? At the moment, the United Nations has basically two military options. The first is traditional peacekeeping — i.e., forces that can be deployed only after a ceasefire is in place, that are accepted by the parties to the conflict and that may only use force in self-defense. T h e second option is a large-scale collective enforcement action such as that in Korea in 1950 or, under Chapter V I I of the Charter, in Kuwait in 1991 — both under U.S. leadership. A third category of international military operation is needed, somewhere between peacekeeping and large-scale enforcement. It would be intended to put an end to random violence and to provide a reasonable degree of peace and order so that humanitarian relief work could go forward and a conciliation process could commence. The forces involved would be relatively small and representatively international; they would not have military objectives as such. But, unlike peacekeeping forces, such troops would be required to take, initially at least, certain combat risks in bringing the violence under control. These would essentially be armed police actions. This idea raises both political and practical questions. I N T E R N A T I O N A L I N T E R V E N T I O N in most forms is now extremely suspect in many parts of the world. New rules of engagement would have be devised. StafT, training, planning and command structures would have to be developed. A wide range of governments would have to be willing to provide highly trained and well-fed military contingents under UN command. In 1945, after six years of war, Article 43 of the Charter was considered to be an important practical innovation. It provided that UN members would 'make available to the Security Council.. . armed forces, assistance and facilities . . . necessary for the purpose of maintaining international

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peace and security.' Thus, the Security Council would have the means to enforce its decisions, and the UN members would participate in this process. Paralyzed by the Cold War, the Security Council never activated Article 43. Perhaps Article 43's lime has now come, although in a broader context than originally intended by the words 'international peace and security.' The aim would be to enable the Security Council to deploy an international force quickly in a situation where the cycle of violence could not be broken except by firm intervention. Such a situation now exists in Somalia and perhaps in Yugoslavia. It existed in Liberia until the military intervention in early 1991 by the Economic Community of West African States. Such situations exist or can be expected in a number of other places as well. "As with all innovations, there will be plenty of arguments against intervention by a new type of international force. But there iB one large argument in favor of it. The unraveling of national sovereignty seems to be a feature of the post-Cold War period. In more and more situations, only firm and evenhanded intervention from the outside is likely to put an end to self-perpetuating bloodshed and the progressive ruin of once peaceful human societies." DEFENSE CONVERSION It is said that the record of massive defense conversion is one unblemished by success. Two (2) notable exceptions lie, however: (1) the defense-dominated economies and mammoth military facilities of Japan and Germany, which were converted into civilian production after World War II; and (2) the two defeated powers (Japan and Germany) were militarily occupied, their defense industries were immediately destroyed and rebuilt with extensive foreign aid. Almost a century later, both countries enjoy economic prosperity. The same set of solutions are proposed today Tor the former Warsaw Pact nations, using Western bulldozers rather than Allied tanks, since true defense conversion is readily dismissed as impossible or at least impracticable. ThiB is most especially true in the former Soviet Union, where the need is greatest, the impediments are gravest, and the trends most pernicious. Throughout the excommunist States, defense conversion leads to a bundle of woes that

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accompany the unprecedented leap from communism to capitalism, from communes to companies. Accordingly, questions abound on: (1) ownership (Who owns the land building or company originally seized by the communist government?); (2) privatization (How is one to convert existing facilities from the government to private hands?); (3) personal allegations (How much in the millions of raw intelligence reports is to be believed?); (4) entrepreneurial talent (Where is one to find or train potential business leaders with a host of skills never needed under communism?); (5) conversion of currency (How do foreign firms repatriate their earnings?); (6) environmental liability (What happens if a newly purchased facility is later found to have a major environmental problem?); (7) political stability (With w h o m within a government does one negotiate?). The answers to these questions represent the greatest deterrent to foreign investment, although problems of defense conversion naturally e a s e as the economy improves. The critical step for conversion — privatization — is for privatization to come up w i t h greater incentives for workers and managers to engage in civilian projects rather than military programs. Fortunately, in 1990 some 25 governments worldwide sold State-owned enterprises — incidentally accruing some $30 billion in revenues. However, such actions are frequently controversial, sparking demonstrations from India to Argentina when government-owned a s s e t s were put up for sale. Thereupon, asking w h a t to do leads to the Rosetta Stone of defense conversion, i.e., defense conversion should not be viewed as "conversion" at all. Rather, it is decisive action that is needed. In this light, authors Kenneth L. Adelman and Norman R. Augustine in their "Defense Conversion: Bulldozing the Management," published by Foreign Affairs (1992), five (5) steps so as to accomplish such a transformation, to wit: One. There must be assurance of political stability. Two. A business-friendly infrastructure m u s t be constructed with clear laws of property ownership, assuring the sanctity of a contract, environmental accountability and an encouraging tax policy. Three. Privatization should be expedited with a generous stance toward foreign ownership, including Bpecial tax incentives to reward job creation.

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Four. Conversion must be need-driven, not capacity-driven, e.g., to launch the defense conversion effort, leaders should direct assets into the essentials of a society — medical care, food processing and distribution, housing and energy generation. Five. Ex-communist countries must develop sources of hard currency by doing what in the non-defense realm they do best, e.g., officials could jump-start tourism as a potentially major source of foreign exchange. In fine, defense conversion is simply the result of two (2) independent and parallel actions: shedding many elements of the defense sector, and absorbing those assets into a new entrepreneurial consumer sector. An excellent example of the latter is the "new" Subic port, as developed and envisioned by Subic Bay Metropolitan Authority head Richard Gordon, former Mayor of Olongapo City. NEW BASE CLOSINGS AT PENTAGON A new round of military base closings in the United States, one that could shut 30 bases and shrink as many as 150, is the latest sign of wrenching U.S. defense budget costs in the wake of the Cold War. An independent commission set up by U.S. Defense Secretary Les Aspin has been formed to review domestic closings. President Bill Clinton already has proposed cutting an additional $88 billion from defense spending over the next four years. Troop levels, currently at 1.8 million, would drop by at least 400,000 by 1997 under the administration plan. Edwark Luttwak, an analyst with the Center for Strategic and International Studies in Washington, cautioned that the White House must be careful not to cave in to congressional demands to shutter foreign bases ahead of domestic closings. T h e U.S. is the world's only superpower and, as such, has duties and obligations," said Luttwak, noting that the Pentagon has already ended or cut its presence at 638 large and small overseas facilities since January 1991. And unlike the hot potato of domestic bases, the Pentagon can close overseas facilities without congressional approval. START II THEATY In January 3, 1993, then U.S. President George Bush and Boris Yeltsin of the Commonwealth of Independent States (CIS)

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made a breakthrough in history with the signing of the Strategic Arms Reduction Treaty II (START I I ) in Moscow. (START I was signed in 1991). The terms of START II stipulate, inter alia, a reduction of the most deadly nuclear weapons, especially land-based missiles with multiple warheads. Accordingly, two-thirds of these weapons are to be decomissioned over the next ten years cutting down both countries' land-based warheads. By then, all land-based missiles will have been eliminated during the period. Earlier, under START I, partial reduction of the two countries' nuclear arsenal had begun implementation.

CHINA TODAY Under Deng Xiaoping's leadership, China's Communist ideology was almost totally reinterpreted and sweeping economic changes were set in motion in the early 1980s. The Chinese scrapped the personality cult that idolized Mao Zedong, muted Mao's old call for class struggle and exportation of the Communist revolution, and imported Western technology and management techniques to replace the Marxist tenets that retarded modernization. Also, under Deng's leadership, the Chinese Communists worked out an arrangement with Britain for the future of Hongkong after 1997. The flag of China will be raised but the territory will retain its present social, economic, and legal system. The removal of Hu Yaobang, a Deng protege, as party chairman in January 1987 was a sign of a hardliner resurgence. He was replaced by- former Premier Zhao Ziyang. Conflict between hardliners and moderates continued and reached a violent climax in 1989. In the infamous "Tiananmen Square Massacre," students demonstrators calling for accelerated liberalization were crushed by military force in June, resulting in several hundred deaths. This was followed by a purge of moderates, including party leader Zhao Ziyang. In Jan. 1991, a Chinese court convicted and sentenced eight, including the country's leading human rights advocate, to prison for terms of two to seven years for "counter-revolutionary propaganda and incitement." Two additional dissidents were sentenced to 13 years in prison in connection with the Tiananmen protests.

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In December 6, 1992, China accused Taiwan of trying to block unification with the mainland by buying jet fighters from the United States and France, one of Beijing's Bret direct attacks on Taipeh over the multi-billion dollars jet dealB. A commentary in the overseas edition of the official People's Daily said Taipeh was seeking to create "one China, one Taiwan" or "two Chinas," both options Beijing has firmly ruled out in its determination to recover the Nationalist-ruled island. Said the commentary: "(In 1992], the Taiwan authorities have spent close to U.S. $10 billion to buy F-16 and Mirage jets from the United States and France. In spending such a huge sum of the hardearned money of the Taiwan people, the Taiwan authorities are wasting both time and capital, acting against the people's will and harming the future development of relations. The scheme behind the purchase of such a lot of advanced weaponry is to create an independent political entity, such as 'one China, one Taiwan,' or 'two Chinas.' This will be opposed by compatriots on both sides of the straits as well as by overseas Chinese, and will not win the approval of any country or person who supports justice." The United States' decision in September 1992 to reverse a decade of policy and sell up to 150 F-16 fighter jets to Taiwan sparked furious denunciations from China, which regards Taipeh as an upstart regime with no international standing. In November 1992, Beijing cranked up its fury again when Taipeh agreed with France to buy 60 Mirage fighter jets. While warning both Washington and Paris of serious consequences, Beijing avoided direct attacks on Taiwan, which is a growing source of investment and trade for China. Already due to take control of the British colony of Hongkong in 1997, Beijing has adopted a conciliatory approach to Taiwan's Nationalists, who fled to the island in 1949 after losing the mainland to communist control. While civilian links have blossomed by January 1, 1994, Taipeh continues to rule out direct official contact with Beijing — reflecting growing impatience among China's leaders over Taiwan's policy of "flexible diplomacy," designed to win the island new friends overseas despite the international diplomatic ban insisted upon by China.

THE SECOND F U N D A M E N T A L RIGHT: THE RIGHT OF SOVEREIGNTY A N D INDEPENDENCE

JAPAN'S NEW MILITARY ROLE? According to Col. Harry G. Summers Jr., who taught East Asian affairs at the Army Command and General Staff College: "Like Mary Shelley's Dr. Victor Frankenstein who tried to build a new man from a dissecting room corpse and created a homicidal monster instead, some in the U.S. have been trying since the end of World War II to build a new a n d better Japan. "The U.S. is pushing Japan to play a military role in the world. [But is this] a good idea or a dumb one? Japan's maritime self-defense force now includes 42 detroyers, 16 frigates, 36 landing craft, and 16 submarines. Japan's defense build-up really got rolling in the 1980s. That's when the Reagan administration began to crumble that Japan was getting a free ride under the protection of America's nuclear umbrella. "Leaders such as Thailand's prime minister and Lee Kuan Yew of Singapore feel that America haB created a Frankenstein's monster out of Japan. Dr. Frankenstein's great crime, said his monster before it lumbered off into oblivion, was that he had created a man — a man without love or friend or soul. He deserved his punishment. And the U.S. will deserve its punishment as well if it forsakes its friendship with the Japanese Self-Defense Force it took such pains to create." (Harry G. Summers Jr., "The Reluctant Samurai," International Affairs, Feb. 1991, p. 7). Relative to this is the danger of the passage of a law in Japan that would legitimize the development of Japan's SelfDefense Forces for peacekeeping purposes. Observers perceive this as another smokescreen for the resurgence of Japan's military might in the Asia-Pacific. They add that the nightmare of Hiroshima and Nagasaki should be prevented at all costs, but that could only be achieved if Japan "will not walk the path of a military power." (See E.C. Paras, Jr., "The Miyazawa Doctrine," Business Star, Oct. 27, 1993, p. 4),

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CONCERN FOR GERMANY AND JAPAN International Relations Professor Harms W. Maull of the Catholic University of Eichstatt, in his Germany and Japan: The New Civilian Powers, wrote: 1

"As the post-war international order dissolves, some of the initial concerns that informed and shaped it are resurfacing. Some observers fear a return of Japan and Germany to traditional temptation of military power politics. [They] suspect that either State (or both) may revert to challenging the status quo, or perhaps even try to replace it, with a Pax Nipponica or Pax Teutonica. Others worry about the implications of a changing distribution of economic power as a result of Germany's and Japan's single-minded pursuit of economic gain abroad and tendencies toward parochial and closed societies and economies at home. "Both Germany and Japan thus face the need to develop international identities that explicitly recognize and accept the facts of interdependence. Solidarity with other societies, and a sense of responsibility for the future of the world and particularly the global environment — are values that will have to be inculcated. Those values must be developed domestically to make effective international interdependence policies possible. Paradoxically, the new challenges of international relations will require a much more active emphasis on the domestic political side of international relations — and particularly so in Germany and Japan." SOME U.S. MILITARY ACTIONS OTHER THAN DECLARED WARS Lebanon Fearful of the newly formed U A R . abetting the rebels of his politically and economically torn country, President Camille Chamoun appealed to the U.S. for military assistance. U.S. troops landed in Beirut in mid-July, 1982 and left before the end of said year, after internal and external quiet were restored. In September 1983, President Reagan ordered Marines to join an interna-

Affairt.

'Hannt W. Maull, "Germany and Japan: The N e w Civilian P o w e n , 'Foreign Winter 1990/91. pp. 91, 106.

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tional peacekeeping force in Beirut. On October 23, 241 were killed in the terrorist bombing of the Marine compound. On February 7, 1984, Reagan ordered the Marine contingent withdrawal. He ended the U.S. role in Beirut on March 30 by releasing the Sixth Fleet from the international force. Grenada A left-wing military coup resulted in the intervention of a 1,900-man United States contingent, supported by token forces from Caribbean allies, which engaged an 800-man Cuban Force and secured the island within a few days. The American combat force was brought home two months later although a small noncombat unit was left behind to assist in peacekeeping functions. Panama On Dec. 15, 1969, the Panamanian legislature proclaimed dictator Gen. Manuel Noriega the nation's "maximum leader," and declared a "State of war" with the United States. On Dec. 20th, following several attacks on Americans, Pres. George Bush ordered over 20,000 U.S. military forces into action in Panama to protect the lives of 35,000 American citizens he considered in "grave danger," to apprehend Gen. Noriega for trial in the U.S. on federal drug trafficking charges, to secure the safety of the Canal, and to defend democracy in Panama. Noriega surrendered to U.S. troops the first week in January 1990. NOTE: That of Haiti is discussed in Chapter 14. END OF 'STAR WARS' U.S. Defense Secretary Les Aspin declared the end of the Star Wars era, saying former President Ronald Reagan's vision of a space-based anti-miBsile shield is no longer needed. Restructuring the U.S. anti-missile research program will mean abandoning exotic projects such as using X-ray lasers for a space barrier against incoming missiles in favor of more mundane ground-based technology. The Strategic Defense Initiative will be renamed Ballistic Missile Defense Organization. — oOo —

Chapter 7 THE THIRD FUNDAMENTAL RIGHT: THE RIGHT OF EQUALITY

MEANING OF EQUALITY IN PUBLIC INTERNATIONAL LAW By the fundamental right of equality, we do not mean absolute equality: for certainly there are powerful and weak States; there are rich and poor States; there are republican and autocratic States. By "equality" we mean "legal equality," not "political equality." Legal equality as understood in this treatise, refers not to equality in the law (for some States have more rights than others, just as married men in general have more rights than married women. [This inspite of or despite of the Family Code, at least in the Philippines, a republican and democratic State I, and those of age have more rightsjhan minors under the national law) but to ^ q u a l i t y "before the law*> (this means the application of the law to the States in accordance with legality; this means also that whatever rights a particular State has must be respected and whatever obligations said State has must be complied with). Oppenheim says that by the right of legal equality, States are generally regarded as equals, as International Persons, notwithstanding patent inequality as to size, population, power, degree or civilization, wealth, and other attributes.' Thus, even a weak State possesses rights which ought not to be disregarded by stronger ones. 2

'See Oppenheim, International Law, p. 238. See Brierly.TVi* Law of Nations, p. 117.

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IMPORTANT CONSEQUENCES OF THE LEGAL EQUALITY OF STATES (1) Each State has a right to vote — but to one vote only — in all questions which can be settled only by consent. A contrary agreement is, of course, permissible. (2) The weights of the votes are ueually equal: this means that the vote of the weakest and smallest State has as much weight as the vote of the largest and the most powerful. (3) The rule of par in parent not habet imperium — no State can claim jurisdiction over another. (4) The courts of one State do not, as a rule, question the validity or legality of the official acts of another sovereign State, so long as those ruleB take effect within the sphere of the tatter's own jurisdiction. 3

(5) Equality can be retained only if there is dignity: thus, by virtue of legal equality, a State has the corollary right to its reputation, good name, and dignity. 4

VOTING RIGHTS Under the Charter of the United Nations, the UN is supposed to act in accordance with certain principles, the first of which is "sovereign equality." Thus Art. 2, Sec. 1 of the Charter provides: T h e Organization is based on the principle of the sovereign equality of all its members." This equality, however, has been impaired by at least two ((2) other provisions: (1) the presence of permanent and temporary members in the Security Council; and (2)

the "veto power" possessed by a permanent member.

THE SOVEREIGN DEBTOR AND INTERNATIONAL LAW State Immunity vs. Sovereign Borrowings The sad phenomenon of some heavily-strapped debtor-Stales opting for outright if not selective repudiation of their foreign loan 'See Oppenheim, op. cit., pp. 238-242. *Se* Oppenheim, op. eit., pp. 261-253.

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obligations have happened before. It is not strange, therefore, that there is a felt need for a certain objective, factual and universally applicable criteria for distinguishing between the public and private acts of a foreign State — a distinction crucial to the restrictive theory in order to solve one of the few remaining difficulties of the law of State immunity. Since external debt obligations are sovereign borrowings and, therefore, are akin to commercial activities, it is but a matter of elementary prudence to provide in the loan documents executed by both debtor-States and lenders, a contractual definition of the transaction possibly couched in the following terms: T h e borrowings hereunder shall be private and commercial acts and shall not be regarded as governmental or public acts." Or words to the same effect. Such a contractual characterization of the financial transaction might go a long way in winning the court's favor in the event that a sovereign debtor brings a case to it for adjudication invoking State immunity from suit. By going to the root of the matter, such a stipulation would make it difficult, or at least particularly awkward, for (i) the debtorStale to reopen at the time of the proceedings a basic issue of definition to which it agreed in the first place; and (ii) the court to substitute its own characterization for that adopted by the parties (debtor-State and lender) without exposing itself to the reproach of rewriting the contract for them. Suffice it to say, private claimants are now afforded by the Foreign Sovereign Immunities Act of 1976 (U.S.) the contractual means to curtail the adverse consequences of the remnants of immunity rules. For one, the Act provides new incentives to stipulating waivers of immunity in international loan contracts that give rise to a sovereign's external debt obligations. It is, therefore, clear that to avoid international embarrassments, contractual documents must contain provisions for the waiver of State immunity. Whether such waivers should continue to take the form of submission to the jurisdiction of courts of law or are to be framed in the context of an arbitration machinery is an open question. Traditional ways of thinking and finding additional support in the Act, may favor the first alternative. New developments, in the law of transactional arbitration may, however, provide new material for reconsideration of a perennial problem. Only the future can tell which of these two possible alternatives may ultimately emerge as

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the beat means of solving transactional loan disputes involving foreign borrowing sovereigns. Owing to the problems that beset the financially-strapped sovereign debtors, We would like to share a cogent proposed measure: The best remedy to obtain judicial redress in the satisfaction of international financial obligations is to have a proviso in the contract of foreign loan agreements providing that the debtor State automatically accepts the jurisdiction of the International Court of Justice (ICJ) in euits for the collection of the indebtedness, i.e., a permanent adjudicating world tribunal would resolve a dispute according to international law. "Writers have put forward the need to increase the use of the Court to settle disputes among States. Indeed, in order to build confidence in the Court, the States must withdraw their declarations which limit the jurisdiction of the Court. Thus, one government proposed that the jurisdiction of the Court be made compulsory. Canada suggested the possibility of groups of like-minded States to agree on coordinated declarations wherein they would list those instances in which they could accept the jurisdiction of the Court to adjudicate on problems arising from their mutual interrelations. It was also suggested that the General Assembly declare unequivocally that the recourse to the jurisdiction of the Court is not per se an unfriendly act, but prompted by the desire to advance the rules of law." (Jorge R. Coquia and Miriam Defensor Santiago, Public International Law [Q.C.: U.P. Phil. Jurisprudence), 1984). After all, a sovereign debtor while it may be allowed by a court to invoke the immunity doctrine as embodied in the former's national Constitution (notwithstanding the restrictive theory), still, this anachronistic abuse of monarchial privilege runs counter to democratic notions of the moral albeit legal responsibility of the State. (See dissenting opinion in Kennecott v. Copper Corp. v. State Tax Commission, 327 U.S. 573, 580 [1946]). For a State which assumes a contractual obligation and fails to perform the same on account of its inability to meet certain requirements, which inability it knew and was aware of when it entered into the contract, should be held liable in damages for breach of contract. (Arrieta v. National Rice & Corn Corp., 10 SCRA 79). Thus, under the law, obligations arising from contracts have the force of law between the parties (debtor and creditor) and

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must be complied with in good faith. (Ramos v. Cenral Bank, 41 SCRA 70). We shall attempt below to present a synopsis of a most complex area of international law in light of the problems facing the world economy today. Thus, factual investigation into issues of State immunity prompted by external debt obligations of sovereign debtors leads to several conclusions. Both the rules of State immunity and external debt obligations are undergoing a noteworthy evolution. Both have inspired an abundant literature. Yet, for the most part, the literature in point approaches each subject individually and makes no attempt to consider whether the rules obtaining in one discipline might affect those of the other. Public and Private Finances A State may borrow from public sources to finance economic development. When immunity issues are concerned, the distinction between public and private sources of finance has practical consequences. Public lending institutions solve the problems of immunity from jurisdiction by means of contractual stipulations providing for the submission of disputes to specific domestic courts or to arbitration, since such provisions are tantamount to a waiver of immunity from suit. In regard to immunity from execution, to the extent that the loan documents refer to this issue at all, which is rare, they leave the issue outstanding. In a typical example, the General Conditions of the World Bank acknowledge that if an award is not complied with by a borrowing member-country and the Bank seeks to enforce the award against the borrower, enforcement will be possible only to the extent permissible under the relevant domestic immunity rules. Upon the other hand, private lenders are wary. Even though the restrictive doctrine of immunity has gained markedly in acceptance, at least in those countries where lending financial markets are located and the borrower is likely to have assets, the rules obtaining in these countries are not uniform. Before lenders can avail themselves of the restrictive doctrine, they must overcome a threshhold issue of characterization, i.e., whether the foreign borrowings made by States should be regarded as commercial or sovereign acts. However, recent decisions hold that loans contracted by foreign States and public entities fall within the commercial

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category. (Allied Bank International v. Banco Creditor Agricola de Cartago, 556 F. Supp. 1440 [S.D.N.Y. 1983], afTd., 733 F.2d 23 [2d Cir. 1984]; Jackson v. Peoples Republic of China, 550 F. Supp. 869 IN.D. Ala. 1982], 22 I L M 75 [1983], set aside 23 ILM 402 [1984], dismissed, 596 F. Supp. 266 [1984|). These loans, notwithstanding their "purposes," remain by "nature" financial transactions. Thus, the (U.S.) Foreign Sovereign Immunities Act of 1976 (or "The Act") which took effect on January 19, 1976, is of direct interest to the financial community since it dispels vestigial fictions concerning the external debt of foreign sovereigns and extends to the borrowings of foreign debtor-States the restrictive doctrine of immunity generally applicable to contracts concluded by foreign States. What Is External Indebtedness? External indebtedness denotes the sum total of foreign borrowing of a given country, taking all sources into account and all maturities, public and private. Thus, the external debt of a country is a contractual obligation like other financial transactions requiring payment in foreign exchange. This obligation is not unique to credit operations. Countries can lose their international creditworthiness by failure to honor their obligations for payments on goods and non-bank services as well as bank credits and loans. Frequently, debtor countries appear to be in a strategically advantageous position. The lender seemingly has more to lose than the debtor with relatively small assets to seize by creditors. Debtors may be tempted to threaten repudiation or default. This view can obscure the fundamental need of sovereign debtors to borrow in the future. Only the rare country which will not require future borrowings is in a strong bargaining position. In the Philippine experience on the foreign debt issue, it cannot be denied that administrations may change but the government continues. Except maybe in short instances of total chaos, the government of a country has a continuing existence. But even in the case of disruption, a new government inherits the legitimacy, the assets and the liabilities of the old. For practical reasons, it has to be that way. All this is relevant to the issue of whether portions of the foreign debt should be repudiated by the Philippines, which is run by a new government under President Fidel Valdez Ramos. The National Economic Development Authority (NEDA) under the Office

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of the President has b e e n continuously studying the possibility of selective repudiation of foreign commercial loans made during the Marcos administration in order to reduce the debt burden.A foreign debt is like any other contract. Its basic elements are consent, consideration, and subject matter. Repudiation of what purports to be a valid contract can be justified if one or more of the elements are missing. It has been alleged that some contracts may be repudiated because the loan proceeds were misappropriated. Obviously, the creditor is not liable for the misappropriation of the loan proceeds; the appropriate remedy is to go after thoBe who misappropriated the money. The Question of Debt Repudiation Philippine government officials are only too careful in talking about debt repudiation and even the fact that repudiation is being studied should not be publicized because it can harm the creditworthiness of the government. At this time, the government can ill afford to unduly antagonize actual and potential creditors. Beyond difficulties with access to long-term and short-term credit, defaulting countries could face reprisals. Foreign creditors could attach any of the foreign assets of a defaulting country, as well as its exports abroad (commercial airlines, ships, bank accounts, shipments of commodities, and so forth). For example, in 1972, Kennecott Copper Corporation successfully obtained legal seizure of Chilean copper shipments at a French port, as well as Lhe freezing of Chilean bank accounts in New York, because Kennecott maintained that Salvador Allende had paid inadequate compensation for its expropriated copper mine. Parallel actions could certainly be expected against countries defaulting on external debt. Notably, the only three countries to repudiate debt in recent decades — Cuba in 1961, North Korea in 1974, and Peru in the early 1980s — did so under conditions that seriously impaired their access to Western (especially U.S.) financial markets. There iB, of course, a wide range of uncertainty about the nature of such international responses. Along the continuum of debt disruption, it is conceivable that if such important countries as Brazil and Mexico declared an indefinite moratorium for reasons of inability to pay, the U.S. government would make no attempt to take reprisals, because of the desire to avoid more permanent jeopardy to political ties. Even in thiB more benign version

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of moratorium, however, private parties would have legal access to the type of attachments and interdictions just described, and it would be unlikely that Western governments would actively block the private actors in these efforts. To be sure in this event, the private concerns with truly large interests (especially the major banks) would first seek to reestablish a payment schedule thru negotiation before attempting to attach assets, because any assets they could attach would be small relative to their claims on the country. But in the event of extended inability to reestablish negotiations, these private concerns might eventually join in the action of other private creditors to seize assets and shipments. Under more aggressive circumstances, moreover, such as a moratorium declaration coupled with internal government changes moving significantly to the left (or to the nationalist-right) and announced in terms laying the blame on Western nations, international official reaction might reinforce private reprisals. At the extreme. Western nations might impoee trade embargoes on the defaulting country. Such a step would complete the process of moving toward autarky that the country would risk when it first decided on an extended moratorium. The possibility of an international reprisal explains the superficial appeal of the idea of a debtors' cartel. It would be more difficult for industrialized countries to impose reprisals such as asset attachments and trade sanctions on a wide coalition of debtorcountries taking joint action. A debtor's cartel would be a political coalition to ward off reprisals rather than a traditional economic cartel regulating the supply of a product. The appeal of such a cartel is greatest to the smaller countries and to the leBS creditworthy countries. If they could enrol large debtors into a common front, small countries seeking to default could greatly reduce the likelihood of foreign reprisals against themselves. Not .surprisingly, however, such a cartel has held little appeal for the large debtorcountries, even after the sharp deteriorations in their credit positions. They have no desire to tarnish their long-term credit standings further by declaring a common front with smaller countries with even more severe debt problems. The very formation of a debtors' cartel would be equivalent to signaling creditors that they could expect aggressive behavior in the future, thereby cutting back even further the availability of new voluntarily lending now and in medium-term future.

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Immunity from Jurisdiction If a sovereign State can be sued in a foreign forum without its consent or waiver, it cannot be said to be an "equal" of the latter; hence we have the rule that in general, a State is "immune" from the jurisdiction of other States. Thus, a foreign sovereign cannot be sued before local courts without its consent in connection with acts performed by it pursuant to treaty provisions. (Boer v. Hon. Tito Tizon, L-24294, May 3, 1974). Under modern international law, it would seem that the immunity is only with respect to acts jure imperii — sovereign or public acts, not with respect to acts jure gestionis — (private actuations of the foreign State). However, when such a State sues in a foreign tribunal, it lays itself open to counterclaims and it cannot set up its immunity as a defense: this is a rule demanded by fairness. One case (Heaney v. Government of Spain ) decided in 1971 rejected the contention that the making of a contract whatever its purpose, is a commercial transaction. This would lead to the conclusion that a contract by a foreign government for the purchase of bullets for its army or for the erection of fortifications does not constitute sovereign acts. Thus, the plea of immunity was upheld. Several cases likewise upheld the plea of immunity involving the Bank of Japan's exercise of its exchange control function as an act of public power or at least an act performed in the interest of a public service. In the same vein, a Belgian case held what might be an actus jure imperii. Regulating external trade, decreeing measures for the protection of the currency, concluding trade or payments agreements with foreign countries, ordering or forbidding transfers of currericy — all these constitute acts of the executive power since in such cases the State, whether of itself or thru its agents, has a right of decision in the exercise of its prerogatives that cannot be called into questioning, and is exercising its governmental authority. A foreign State may consider it in principle an affront to its dignity to be subjected to the judicial processes of the forum State. The risk that diplomatic relations between the two States will be affected adversely is, however, considerably increased if the courts of the forum State not only assume jurisdiction over the subjectmatter of the dispute, but are also prepared to authorize forced

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execution against the property of the defendant-State situated in the forum State. Immunity from execution may always be invoked by the sovereign debtor where the assets sought to be attached are capable of being used partly for the public purposes of the State and partly for its commercial purposes. Herein, the rule of immunity will prevail. For public service assets are exempt from measures of execution in another country. Thus, under Section 1610 of the (United States) Foreign Sovereign Immunities Act of 1976, immunity from attachment or execution are: (1) the property of a foreign central bank or monetary authority "held for its own account;" and (2) property used, or intended to be used, in connection with a military activity if the property is of a military character or is under the control of military authority or defense agency. Moreover, measures of execution cannot be levied against a bank account in the name of a diplomatic mission of the Philippines, for instance, and to the extent that there is prima facie evidence that the account is used, at least in part, to finance the normal expenses of the mission, since otherwise the performance of the functions of the mission would be adversely affected. Suffice it to say, the current practice seems to indicate that immunities are accorded only in respect of activities which are public in character, official in purpose, or sovereign in nature. The Gagara Great Britain, Court of Appeals (1819) FACTS: A ship owned by the West Russian steamship company was requisitioned by the Russian Imperial Government. The Russian Bolshevist Government overthrew the Imperial Government, and among other acts, confiscated the ship. Later, Estonia (which had been recognized by the English government as a de facto independent State) was able to get hold of the ship and the Estonian National Council condemned the ship as a prize of war. The steamship company sued in England for the return of the "Gagara." HELD: England has no jurisdiction to entertain a suit against a foreign sovereign State. The independence and dignity of another sovereign State demand that no other State

rNTERNATIONAL LAW AND WORLD POLITICS

can have jurisdiction over the former's property although the same be within the territorial jurisdiction of the latter."* Raquiza v. Bradford 75 Phil. 50 (1945) FACTS: Petitioners were members of the military personnel of the U.S. Army stationed in the Philippines, with the permission of our government. When they were accused by the Army of treasonable collaboration with the Japanese (during the occupation), they were placed in confinement by the U.S. Army. They asked for the writ of habeas corpus. HELD: Petition should be dismissed because the U.S. Army, being an instrumentality of the United StateB, is exempt from the jurisdiction of our courts. T u b b v. Griess 78 Phil. 249 (1947) FACTS: Two civilian employees of the U.S. Army in the Philippines (with the status, however, of U.S. military personnel) were accused by the U.S. Army of violating the Articles of War for having allegedly misappropriated government funds. They asked for the writ of habeas corpus on the ground that the U.S. proceedings were illegal. HELD: The petition should be dismissed. It is a settled principle of International Law that a foreign country allowed to march thru a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place. Query A is the owner of an apartment in Manila leased to the United States about the middle of 1945 Tor the duration of the war and six months thereafter" to be used for billeting and quartering officers of the U.S. Army stationed in the Manila Area. Upon the termination of the lease, could an action be instituted in a Philippine court for the recovery of

s

See Parliament Beige (1880) 5 P.C. 197, 214; See a/so Mighetl v. Sultan of Johore 118941. ] Q.B. 149, 159.

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possession assuming that the army officers therein housed •efused to surrender the same? Explain. ANSWER: Upon the termination of the lease, an action can be instituted in a Philippine court for the recovery of possession against the army officers concerned — otherwise a private citizen would be helpless and without redress; nonetheless, there can be no judgment of financial liability (payable by a foreign State), for the simple reason that a foreign government without its consent cannot be made a defendant in our courts. Such exemption is one of the attributes of an equal and independent State.* While it is true that a State can be sued when as a consequence of a contract it descends to the level of a private citizen, still this principle applies only when the defendant is the State of the forum, not a foreign State. Equality and dignity demand that we cannot assume jurisdiction over a foreign State. The remedy cannot be judicial in nature; diplomatic means must be resorted to. 7

Lyons v. United States 55 O.G. 1364 (1958) FACTS: Lyons entered into a contract with the U.S. Government, for him to render Stevedoring Service at the U.S. Naval Base in Subic Bay, Philippines. He later sued the U.S. Government for alleged non-payment. However, he had not previously complied with the procedure (stated in the contract) required for filing a claim against the U.S. Government. Should the case be dismissed? HELD: Yes, for failure to exhaust the necessary administrative remedies against the U.S. Government. (NOTE — the statement made by the Court here that if the administrative remedies had been exhausted, suit could have been brought againBt the U.S. Government for it had entered into a contract, and thus descended to the level of a private citizen, is clearly an obiter — an obiter that incidentally is erroneous under traditional international law for here we are dealing

6

See Syquia. et al. u. Almeda Lopez, et al.. 47 O.G. No. 2, p. 665 (1949); Marvel Blag. Corp. u. Phil. War Damage Com. 47 O.G. No. 5. p. 2309. ' S « Santos v. San log. et al.. 48 O.G. 4616.

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with a foreign State, not our own. Of course, if the Act involved is only jure gestionis, private in character, there would be no immunity.). State Immunity Doctrine and Sovereign Debt Restructuring Beyond tactical considerations, to understand the implications of our foreign debt problem, particularly sovereign debt restructuring, almost always leads to an important component of whether the law involved is municipal law or international law. Legal implications, after all, are not merely matters of conjecture. Difficulties are encountered from the point of view of the international financial lawyer. Thus, heavily-indebted nations like the Philippines, Poland, and he A B M countries (Argentina, Brazil, and Mexico) make for different problems and approaches. By way of proposals, therefore, it is suggested that viable restructuring agreement for the Fidel V. Ramos government should: 1. Provide the creditors with an expectation of receiving payment as soon as possible,'given political necessities and need for imports; 2. Assure the Philippines of the freedom to trade and accumulate foreign exchange reserves; 3. Make careful definitions of "borrower," etc., so as to avoid hindering economic activity; 4. Precisely define external indebtedness, to include only borrowed money in a foreign currency and guarantee thereof; 5. Accurately provide the meaning of "lien" limiting the term, as it is, to the legal security interest; and 6. Define international monetary reserves and to maintain such in an unencumbered form. In addition, the Ramos government should: 1. Develop a negative pledge clause that responds to economic realities. To cite an example: The standard World Bank ( W B ) clause effectively has many developing countries, by cross-default provisions, in default. Also to be developed is a cross-default clause that protects both debtor and creditor from precipitate action; 2. Pay attention to tax indemnities (how broad should or need they be?) and limit set-off rights, e.g., the "black hole" concept is both unmanageable and unnecessary; 3. Establish a reasonable limit on expenses, e.g., unnecessary publications must be avoided; 4. Avoid the following results, thus: (a) an agreement that is or will be in default on the day of signature; (b) an agreement under which the recovery of the economy is impeded; and (c) an agreement that violates the debtor's domestic laws or is politically offensive; 5. Avoid a prejudg-

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men I attachment, which unnecessarily harasses central bank operations and does more harm than good; 6. Decide as to the appropriate percentage of holders required for a waiver or an amendment of the agreement; and 7. Pay attention to questions of the governing law, and waivers of State immunity from suit wherein the Philippines, as a sovereign debtor, should avoid being subjected to multitude foreign jurisdictions. Thereupon, consent to jurisdiction should be non-exclusive and limited to the essential fom. In these circumstances, it is of prime importance to know whether a defaulting foreign State can be sued before a court and, if so, whether the final judgment obtained can be enforced against the funds or property of the judgment debtor. Specific legal questions that must be answered, include the following, to wit: 1. What are the legal implications should the Philippines refuses or is unable to pay its external debt obligations? Can legal sanctions such as the confiscation of its property be imposed? Can the foreign creditor banks go after properties of Filipinos abroad on the pretext that the latter are held responsible for the acts of their government? 2. Is the Philippines, unlike a private entity, immune to actions of courts? If not, can it be subject to litigation? If so, in what forum should the action be filed? 3. Assuming that a court suit does ensue, can the Philippines as a sovereign debtor invoke the doctrine of State immunity? What are the reasons for or against said invocation? Whose concept of State immunity should be followed: the concept of the sovereign debtor, the foreign creditor, or the forum? Are there any exceptions to the rule:? What are the instances when the doctrine may be invoked? If a suit is brought under the Foreign Sovereign Immunities Act of 1976 in the U.S. on a loan contract specifying as governing law the law of a foreign jurisdiction which happens to provide absolute immunity, what is the reluctant effect? What substantive law governs determination of the validity of an express waiver? Is it the law of the foreign State, pursuant to which the allegedly waiving State entity may, for example, lack the requisite authority, or is it the law of the forum, which might uphold the waiver, at least on the grounds of apparent authority? Similarly, what law determines whether a "special arrangement'' for service of process made by a foreign State is binding on another entity of that State? What are the modes of procedure to

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be followed in court proceedings, be they arbitral and/or adjudicatory? Who will have the burden of proof? What kind of proof would be required to obtain an affirmative judgment? Will a motion for reconsideration be allowed? Is there any mode of appeal? What is the effect to a judgment rendered by the deciding authority or entity? How can a judgment be enforced? Can there be attachment at the commencement of the suit? If so, under what conditions, if not, why not? Can there also be a levy on execution on the properties of the Philippines as a debtor-State if said properties are located in the country of the forum? May the sovereign debtor in the course of the proceedings be held in contempt by the adjudicating tribunal? Necessarily, too, sanctions may be imposed on the Philippine government in the event of a default on obligations. Sanctions come in a variety of forms and, according to lawyers and financial analysts, who have studied the range of possible measures, the economic consequences can vary considerably. These include forcible measures generally resorted to under international law, thus: New Investments. A ban on all new investments of subsidiaries, is one example of a sanction affected by market forces. Rather than pump new money in the Philippine operations, parent companies in the U.S. have been selling off assets or letting branches use their profits to modernize. Results: a net flow of capital from the subsidiaries to their U.S. headquarters rather than the reverse. Less U.S. business activity in the Philippines not only crimps the country's economic growth, deprives it of technology, but hits employment hardest. Total Trade Bmbargo.Th.ia measure (just like banning U.S. loans to the Philippines) could clip the profits of businesses and apply marginal pressure on the government on a significant scale. A trade embargo will thus have much financial effect on Philippine export earnings. Disinvestment. Possibly, the most sweeping and controversial sanction is one that will allow American companies to get rid of their assets in the Philippines. A forced withdrawal will lead either to a dissolution of these private U.S. assets or their disposal at fire-sale prices to private buyers. The impact on the Philippines will probably be at least a temporary loss in skilled management and lower profits.

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To abate any deleterious upshot, the Philippine government, in anticipation of all possible sanctions, may develop a two-tier exchange rate for the peso, with lower rates on money from the sale of foreign assets, that will minimize its own capital loss in any foreign-business pullout. The U.S. Foreign Sovereign Immunities Act There is today the Foreign Sovereign Immunities Act of the U.S. or FSIA (28 U.S.C. 1330, 1602-1611) which provides a comprehensive scheme governing "when and how parties can maintain a lawsuit against a foreign State or its entities in the courts of the United States." This statute grants immunity to foreign States and their agencies or instrumentalities from the jurisdiction of the courts of the U.S., except, inter alia, where the action is based upon an act outside the territory of the foreign State elsewhere and that act causes a direct effect in the U.S. or where the foreign State has waived its immunity either expressly or impliedly. In one case, however, which involved violations of international law, the defense of immunity by a foreign sovereign under the FSIA was declared inapplicable. In Ameralda Hess Shipping Corporation vs. Argentina Republic (No. 86-7602, 86-7603, slip op. 2nd Cir., Sept. 11, 1987), where plaintiff sought damages by reaBon of the extensive damage on his shipment of oil on board the tanker Hercules, a neutral ship, which was hit by missiles fired by Argentina during the Falklands War between Great Britain and Argentina, the Court of Appeals for the Second Circuit reversed the dismissal of the case by the Southern District Federal Court in New York and .ruled that the FSIA does not apply to cases involving claims of international law violations.

Commercial Risk vs. Sovereign Risk It has been proven time and again that the multinational structure of modern banking exposes deposits accepted at banks' foreign branches to multiple schemes of regulations. Both the home country of the bank and the hoat country of the branch may attempt to impose restrictions on the use or withdrawal of deposited funds. The law concerning the impact of these restrictions is unsettled and, as a result, it is not clear whether or where a deposi-

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tor may look for repayment of a bank's obligation in the event the home or host country imposes such restrictions. As we shall soon see, the problem appears in many shapes. Can the depositor reasonably expect the law of the branch to apply if it favors him, and still look to the home office if the law applicable there favors him? Conversely, can the bank limit its exposure, so that if it follows the law applicable where the deposit is made it will be protected against double liability, and so that it is excused from application of conflicting law of the home country with respect to deposits made at foreign branches? Can the parties determine or allocate the risks by contract and rely on the effectiveness of such contracts? Looking at the problem from a third side, to what extent are governments limited in the controls they can effectively impose on transnational banking transactions? This brings us to the litigation case involving Wells Fargo Asia, Ltd. v. Citibank, N.A., No. 84-996 [S.D.N.Y., filed Feb. 10, 1984]. But first, a brief backgrounder of the case. Nineteen eightythree was a bad year for developing countries, and particularly for those countries with large external debts. For the Philippines, already burdened by external debts of more than $25 billion, the assassination of Benigno "Ninoy" S. Aquino Jr. on Aug. 21, 1963 exacerbated the Philippine's economic problems. New investments fell sharply; loans became even more scarce; capital flight increased. On Oct. 5, 1983, the Philippine peso was devalued for the second lime in four months, this time by 21.4%. On Oct. 14, foreign creditor banks agreed with the government that all payments of principal due on the nation's foreign debt could be postponed for 90 days, provided interest payments were continued. On the next day, Oct. 15, 1983, the Central Bank of the Philippines issued a Memorandum to Authorized Agent Banks (MAAB47) which read as follows: "Any remittance of foreign exchange for repayment of principal on all foreign obligations due to foreign banks and/or financial institutions, irrespective of maturity, shall be submitted to the Central Bank thru the Management of External Debt and Investment Accounts Department (MEDIAD) for prior approval. Accordingly, total obligations to foreign banks/ financial institutions as of the end of business hours in New York City on Oct. 14, 1983 shall not be reduced without prior Central Bank approval. These measures shall apply to payments value dated during the period Oct. 17, 1983 to Jan. 16, 1984. Appropriate sanctions shall be imposed on banks which fail to strictly comply with this directive."

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Four foreign-owned banks were subject to MAAB47. By far the largest in terms of deposits accepted was Citibank. Citibank's Manila branch had accepted deposits from foreign sources, i.e., foreign obligations subject to the freezing of some $630 million, in favor of some 50 non-Philippine financial institutions. Approximately half of these funds had been redeposited outside the Philippines in the interbank market, and the other half had been used as the basis for loans to various Philippine enterprises. Citibank announced that it would seek a license from the Central Bank to pay back deposits as they matured, but that in the absence of such a license it could not pay out of its Philippine assets and it would not pay from funds maintained at branches in other countries or at its headquarters in New York, Citibank would, however, continue to pay interest on the frozen deposits, at a higher rat^ than previously agreed. Note that MAAB47 does not purport to restrain the payment of interest. Both MAAB47 and Citibank's response provoked anxiety and anger in the international banking community. Citibank's position was that each of its overseas branches operates subject to the laws of the country where it is established, and that by placing funds in the interbank market in Manila, rather than in New York or London, the depositors had, in return for higher interest rates, assumed the risk of sovereign restraints in the country where the deposits were placed. One of the financial institutions that had placed funds with Citibank Manila challenged Citibank in court. Wells Fargo Asia Limited (WFAL), the Singapore merchant bank subsidiary of Wells Fargo Bank, N A , a national bank with its principal place of business in San Francisco, filed suit against Citibank, N.A., not against the branch in Manila, but against Citibank's home office in New York. Jurisdiction was asserted both under 26 U.S.C. Sec. 1332 (1982) (diversity of citizenship) and 12 U.S.C. Sec. 632 (1982) (federal jurisdiction over suits involving international or foreign banking in which national banks are parties). W F A L , the Singapore company, had placed two six-month time deposits with Citibank Manila in June 1983, each for $1 million. When the deposits matured in December 1983, W F A L had demanded payment of principal and interest on the deposits by a credit to a New York account, but payment, except for accrued interest, had been refused. Citibank admitted receiving the depos-

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its, but asserted that it was excused from performing the deposit arrangements by M A A B 47. At trial. Citibank elaborated its argument about the risk assumed by the parties: when a lender (depositor) deals with a multinational bank such as Citibank, the lender's (depositor's) risk breaks down into two, legally distinct elements. As to the credit or commercial risk, i.e., the risk of failure or illiquidity of the branch where the deposit is made, the entire multinational enterprise stands behind the obligations; as to sovereign risk, in contrast, the lender (depositor) assumes the risk of restraints imposed both by the government where the deposit is placed, here the Philippines, and by the government of the home office of the bank. In support of its contention concerning sovereign risk. Citibank introduced reports obtained in discovery that showed how the Wells Fargo Bank (WFAL's parent) monitored its investments monthly according to its estimate of the safety of host countries, by use of a color code that ranged from red-zone (investment prohibited) thru yellow, green, and blue, to white zone (no restraint) countries. (In June 1983, before the assassination of Aquino, the Philippines was in the yellow zone in Wells Fargo's monthly report). Citibank argued that this proved that W F A L , like other participants in the Eurodollar market, assumed the risk of sovereign interference with their investments; Wells Fargo, for its part, responded that prudent management of its various placements was not the same as agreeing to a legal allocation of risk, and that a deposit placement in Manila with Citibank was not the same as a loan to a Philippine commercial enterprise or even to say, the Bank of the Philippine Islands. In part, the dispute between Citibank and Wells Fargo was a matter of words. Wells Fargo and Judge Knapp said Philippine law did not prevent payment of the obligation from non-Philippine assets. Citibank contended that MAAB47 had suspended the obligation of repayment, and that there was no requirement under Philippine law for a foreign bank to remit funds to its Philippine branch to be used to repay the deposit. Both statements are probably correct, yet both could not be dipositive of the case. The Second Circuit, after argument, remanded the case to Judge Knapp for clarification of his findings. On remand, Judge Knapp set out hie thinking in full. Citibank is liable for the debt of its Manila branch and plaintiff is entitled

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to look to Citibank's worldwide assets for satisfaction of its deposits. Nevertheless, as to the policy concern focused on the principle that, in the absence of an agreement to the contrary, a U.S. bank should not bear the risk that a foreign government will impose restrictions on the deposits of its foreign branches, here the District Court had found that there had been just such an agreement. As these lines are written, a petition for certiorari is pending before the U.S. Supreme Court in thiB Wells Fargo case. But whatever is the outcome of the current or of future actions in court, the problem is not likely to fade away. The unforeseeable, as already pointed out, is in fact foreseeable, and in this area the time has come to deal with it. In the Matter of the Arbitration Between Maritime International Nominees Establishment v. The Bepublic of Guinea, Appellant, U.S.A., Intervenor U.S. Court of Appeals, D.C., Nov. 12, 1902 21 I L M 1365 (1982) Immunity from suit is implicitly waived when a State enters into an agreement to arbitrate a dispute. Victory Transport Inc. v. Comiaaria General de Abastecimientos y Tranaportea U.S. Court of Appeals, 2d Cir. (1964), 336 F.2d 354. Cert, denied 361 U.S. 394 (1965) A claim of sovereign (State) immunity is denied unless the activity in question falls within one of the categories of strictly political or public acts and in which sovereigns have traditionally been quite sensitive. Such acts are generally limited to the following categories: (1) internal administrative acts, such as expulsion of an alien (2)

legislative acts, such as nationalization

(3)

acts concerning the armed forces

(4)

acts concerning diplomatic activity

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(5)

public loans

The restrictive theory adopted by the U.S. State Department does not require sacrificing the interests of private litigants to international comity in other than these limited categories. Chudian v. Philippine National B a n k 912 F. 2d, 1095, U.S. Court of Appeals, 9th Cir., August 29, 1990 The dispute arose out of a 1985 settlement of litigation between Vicente Chuidian, a Philippine national, and the Philippine Export and Foreign Loan Guarantee Corporation (Guarantee Corporation). As part of the settlement, the Stateowned Philippine National Bank (Bank) issued a letter of credit to Chuidian on behalf of the Guarantee Corporation. After the Government ofPreBident Aquino took office in 1986, the Presidential Commission on Good Government (Commission) was formed and "charged with recovering 'ill-gotten wealth' accumulated by Marcos and his associates." The Commission was authorized to enjoin acts that might frustrate its efforts. Raul Daza, a member of the Commission, instructed the Bank not to pay on the letter of credit issued to Chuidian, claiming that the Commission suspected that the settlement had been fraudulently entered into to prevent the revelation of facts concerning Marcos's involvement in Chuidian's business enterprises. 1

Chuidian sued the Bank in state court for payment on the letter of credit. The Bank removed the case to federal court under the removal provisions of the Foreign Sovereign Immunities Act of 1976 ( F S I A ) . Daza was added as a defendant on the basis of his alleged interference with Chuidian's contractual relations with the Bank. The district court dismissed the case against Daza for lack of subject matter jurisdiction. On appeal, the Court of Appeals for the Ninth Circuit affirmed. 2

In holding that subject matter jurisdiction was lacking over the claims against Daza, the Ninth Circuit addressed '912 F.2d 1095. 1097. 26 U.S.C. Sec. 1603 (a)-(bi.

1

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the following important iBBues under the FSIA: (1) whether the FSIA applies to individuals acting in an official capacity; ( 2 ) whether a waiver by one "foreign State" may be attributed to another where the same foreign government is involved; (3) whether a national of a foreign State may bring a claim against his own State for a taking in violation of international law under the expropriation exception to immunity contained in the FSIA; and (4) whether a taking claim may be brought under the tort exception to immunity. However, before reaching those issues, the court found it necessary to consider, sua sponte, whether the district court had jurisdiction to hear the claims against Daza absent a finding of immunity, even though the parties had apparently agreed that jurisdiction would exist under those circumstances. On this latter issue, the court relied on 28 U.S.C. Sec. 1441 (d). Since the Bank clearly was a "foreign State" for purposes of the FSIA, it had the right to remove the case to federal court. Following the Fifth Circuit's decision in Arango v. Guzman Travel Advisors Corp.* the court held that removal of a case by a foreign State defendant removes the entire action against all defendants. Therefore, the Bank's removal of the case effectively "transferred the claims against Daza to federal court, without regard to whether the [FSIA] provides an independent basis for hearing those claims." 3

5

Turning to the issues under the FSIA, the court first analyzed whether the F S I A has any applicability to individuals. The statute applies to "foreign States," which are defined to include an "agency or instrumentality of a foreign State." Both the plaintiff and the U.S. Government, which filed a "Statement of Interest of the United States," argued that Daza was not covered by the FSIA. In the plaintiff's view, this meant that Daza was not entitled to any immunity. In the U.S. Government's view, this meant that the issue of Daza's immunity should be determined on the basis of the common law as it existed before the FSIA, under which foreign 6

J

26 U.S.C. Sec. 1441 (d) (1988). '621 F.2d 1371 (5th Cir. 1980). ^912 F.2d at 1099. *2fi U.S.C. Sec. 1603 l i M b ) .

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government officiate acting in an official' capacity were accorded immunity.

7

v

The Ninth Circuit disagreed with both those views, holding that the issue of Daza's immunity should be determined under the FSIA. While the court recognized that the definition of "agency or instrumentality of a foreign State" and the statute's legislative history appear to be addressed principally to organizations, rather than individuals, it refused so to limit the statute in the absence of a clear directive from Congress.

8

The court reasoned, on the one hand, that Con-

gress could not have intended to allow private litigants to circumvent the F S I A simply by bringing suit against foreign officials individually, and, upon the other hand, that Congress could not have intended immunity questions against such officials to be determined under a separate body of law predating the F S I A . In this regard, the court noted that the F S I A was intended to be a comprehensive codification of the

'See Restatement (Second) of the Foreign Relations Law of the United States, Sec. 66 (1965). The court pointed out that the American Law Institute issued the Restatement (Third) of Foreign Relations Law. which supersedes the second Restatement and entirely deletes the discussion of the U.S.common law of sovereign immunity in light of Lhe FSIA. 912 F.2d at 1103. All three elements of the definition or "agency or instrumentality of a foreign State" seem to contemplate legal persons, rather than natural persons. To qualify, the person must be one (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign State or political subdivision thereof, or a majority or whose shares or other ownership interest is owned by a foreign State or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in Section 1332(c) and (d) of this title, nor created under the laws of any third country. 26 U.S.C. Sec. 1603 (b). The legislative history contains the following paragraph, further indicating that Congress was focusing on legal persons in drafting Che definition: As a general matter, entities which meet the definition of an "agency or instrumentality of a foreign State" could assume a variety of forms, including a State trading corporation, a mining enterprise, a transport organization such as ,i shipping line or airline, a steel company, a central bank, an export association, a government procurement agency or a department or ministry which acts and is able in its own name. H.R. Rep. No. 1487. 94th Cong., 2d Seas. 15-16 (1976). reprinted in [1976] U.S. Code Congress and Administration News 6604, 6614 (hereinafter House 'teportl. 8

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law of sovereign immunity. Moreover, resort to the pre-1976 common law of sovereign immunity would resurrect the role of the State Department in the judicial process. A principal objective of Congress in enacting the FSIA had been to place the iesue of sovereign immunity exclusively in the hands of the courts. 9

Having held the FSIA applicable to the claims against Daza, the court analyzed the various exceptions to immunity contained in the FSIA to determine whether immunity should be denied. The three exceptions at issue on appeal were the waiver, expropriation and non-commercial tort exceptions. Plaintiff apparently did not pursue its argument under the commercial activity exception on appeal."

10

Under the waiver exception, a foreign State will be denied immunity if it has waived its immunity, either expressly or by implication. Plaintiff argued that both the Bank and the Guarantee Corporation had participated in the suit without raising the defense of immunity, and had thus waived their own immunity and that of Daza." However, since this argument depended entirely upon the attribution of the other foreign States' alleged waivers to Daza, it was rejected. Relying upon the Supreme Court's decision in First National City Bank v. Banco para el Comercio Exterior (Bancec), the court stressed that the acts of one foreign State entity cannot be attributed to another absent extraordinary circumstances not present in the case. Both Bancec and the legislative history of the FSIA indicate that the separate legal personalities of State entities generally must be respected; claims may not be freely asserted against one for the wrongs of another, "absent 13

*28 U.S.C. Sec. 1602. Prior to enactment of the FSIA, foreign governments had the option of petitioning the State Department for a "Suggestion or Immunity." The filing of such a "Suggestion" was considered binding upon the courts. Republic of Mexico u. Hoffman, 324 U.S. 30 (1945); Ex parte Peru, 318 U.S. 578 (1943). 28 U.S.C. Sec. 1605 (aHl), (3), (5). "28 U.S.C. Sec. 1605 (aM2). In general, the filing of a responsive pleading without raising the defense of immunity constitutes a waiver under 26 U.S.C. Sec. 1605 (aHl). House Report. supra note 8, al 18. "462 U.S. 611 (1963). See Foremost-McKesson. Inc. o. Islamic Republic of Iran. 905 F 2d 438 (1990). summarized in 04 AJIL 922 (1990). 10

l2

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allegations of fraudulent purposes."" Therefore, the court concluded, "any waiver of immunity by the Guarantee Corporation or the Bank should not operate against Daza." ls

With respect to the argument that the prevention of payment under the letter of credit constituted a "taking" of a property under the U.S. Constitution, the court pointed out that the FSIA's "taking" exception denies immunity only where "rights in property taken in violation of international law are in issue." In the court's view, since plaintiff was a Philippine national, the taking could not violate international law: "Expropriation by a sovereign State of the property of its own nationals does not implicate settled principles of international law." It was thus unnecessary for the court to determine whether a "taking" had occurred within the meaning of the FSIA. 16

17

The last immunity provision at issue was the noncommercial tort exception, which provides, subject to certain exceptions, that a foreign State will be denied immunity if the claim is for "personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortuous act or omission of that foreign State or of any official or employee of that foreign State while acting within the scope of his office or employment." Without addressing the various issues arising under this exception, the court declined to entertain plaintiffs argument on the ground that it was an attempt to recharacterize the same taking claim as was rejected under 28 U.S.C^Sec. i605 (a)(3). Taking claims against foreign States, the court held, must be analyzed under 18

u

9 1 2 F . 2 d al 1104. The House Report makes clear that the FSIA was not intended to affect the subs tan live law of liability... or the attribution of responsibility between or among entities of a foreign Slate; for example, whether ihe proper entity of a foreign State has been used, or whether the entity sued is liable in whole or in p a n for the claimed wrong. House Report, supra note 6, at 12. A later passage dealing with immunity from execution explains: "If U.S. law did not respect the separate juridical identities or different agencies or instrumentalities, it might encouraged foreign jurisdictions la disregard the juridical divisions between different U.S. corporations or between a U.S. corporation and ils independent subsidiary." Id. at 29-.10 912 F.2d at 1104. 28 U.S.C. Sec. 1605(aM3). "912 F.2d at 1105. 28 U.S.C. Sec. 1605(a)(5). 15

,fi

1 8

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the specific statutory exception to immunity addressed to takings; if the taking claim does not fall within the scope of 28 U.S.C. Sec. 1606 (aX3>, it cannot be entertained as a tort claim under 28 U.S.C. Sec. 1605(a)(5). Plaintiff had also argued in the alternative that Daza could not be granted sovereign immunity since he was not acting in an official capacity, but for personal considerations, and since he had exceeded the scope of his authority. While the court agreed with this principle, it disagreed with its application to the case. In the court's view, regardless of his • * • » * • . . motives in preventing payment on the letter of credit, Daza was clearly acting as a member of the Commission, not as a private citizen. Likewise, arguments based on motive were insufficient to demonstrate that Daza had exceeded his authority. Since Daza was held to have acted in his official capacity and within the scope of his authority, and since none of the exceptions to jurisdictional immunity contained in the FSIA were found applicable, the dismissal of the claims against Daza for lack of subject matter jurisdiction was affirmed.

LEGALITY AND VALIDITY OF OFFICIAL ACTS OF A FOREIGN STATE >i

A State must regard as legal and valid the official acts, decisions, and decrees of a foreign State insofar as they operate within the territorial jurisdiction of the latter; whether or not effect can be given within the forum of the former is a question resolved by Private International Law. Generally, however, such acts, decisions, decrees, and laws can be recognized in the forum if they are properly pleaded and proved, and if they do not come within the following (1) acts and decisions contrary to a sound and established public policy of the forum; (2)

acts and decisions contrary to principles of morality

(contra bonos mores); (3)

procedural matters;

(4)

penal laws and judgments;

(5)

fiscal and administrative matters;

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(6) acts which work injustice on the people or residents of the forum; (7) State;

acts and decisions contrary to the vital interests of the

(8) acts and decrees involving real property and also personal property, insofar as the Philippines is concerned.' 8

ACT OF STATE DOCTRINE

/

The "Act of State Doctrine" is the doctrine that a State should not inquire into the legal validityiof the public acts (legislative, executive, judicial) of another State (or foreign sovereign powers) done within the territory of the letter. The classic American statement of the doctrine may be found in Underkill v. Hernandez where Chief Justice Fuller said for a unanimous Court (U.S. Supreme Court): 30

"Every sovereign State is bound to respect the independence of every other sovereign 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 thru the means open to be availed of by sovereign powers as between themselves." Following this precept, the Court in that case refused to inquire into the acts of Hernandez (a revolutionary Venezuelan Military Commander whose government had later been recognized by the United States) which were made the basis of a damage action in the U.S. by Underhill, an American citizen, who claimed that he had been unlawfully assaulted, coerced, and detained in Venezuela by Hernandez. 21

In Bernstein v. Van Heyghen Fre res Societe Annonyme, suit was brought to recover from an assignee property allegedly taken, in effect by the Nazi Government (German) because plaintiff was a Jew. Recognizing the odious nature of this act of State, the Court,

"See ArU. 16 and 17, Civil Code, see also Paras, Philippine Conflict of Laws, see also Minor, Conflict of Laws, pp. 9-26; Goodrich. Conflict of Laws, pp. 21-24, 30. m

1 6 8 U.S. 250 p. 252; 42 L. Ed. 456. '"2 Cir., 163 F. 2d 246.

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through Judge Learned Hand, nonetheless, refused to consider it invalid on that ground. Rather, it looked to see if the Executive had acted in any manner that would indicate that United States courts should refuse to give effect to such a foreign decree. Finding no such evidence, the Court sustained dismissal of the complaint. NOTA BENE: Republic of the Phils, v. Marcos, et al. No. 1465 — August Term 1906, Second Circuit U.S. Court of Appeals Judges Oakes^ Before the Act of state doctrine is applied even to Ferdinand E. Marcos' public acts, the court must weigh in balance the foreign policy interests that favor or disfavor such application. Otherwise stated, the acts that the Republic of the Philippines challenge must necessarily be scrutinized. Defendants, upon the other hand, must present evidence that these acts were public (e.g., that Marcos' wealth was obtained thru official expropriation decrees or public monopolies). The court then must decide whether to examine these public acts in light of the considerations aforementioned. If it chooseB not to do so — and the determination whether the Marcoses (spouses Ferdinand and Imelda and children) obtained their wealth illegally, and hence the determination of ownership of the property at issue in this case, is impossible without such scrutiny — the court should consider deferring to a Philippine adjudication that comports with due process. But in any event, at this stage we agree with the position of the United States that the defendants have not discharged their burden of proving an Act of State. Only after that burden is met do other relevant factors need to be considered. NOTE: The Philippine government can profit much by watching the recent developments concerning the treatment of foreign defaults in domestic courts in the United States. In Allied Bank International v. Banco Credito Agricola de Cartago (757 F.2d 516, 2d Cir., 106 106 S. Ct. 30) decided

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in 1983, the United States District Court for the Southern District of New York has ruled that the Act of State doctrine prevents a United States court from adjudicating a claim based on a foreign borrower's default on a loan issued by U.S. banks, when the inability to pay back the loan stems from executive orders issued by the borrower's government. Herein, the Costa Rican government passed two directives which prohibited the export of foreign exchange for the purpose of repaying external debts. Specifically, the directives prohibited all institutions of the Republic from making payments on the external debt without the prior approval of the Central Bank in consultation with the Ministry of Finance. The defendant-banks were subsequently informed that payment in United States dollars of foreign debt is not authorized, and is deferred. Said directives were enacted in response to a serious economic crisis suffered by Costa Rica. Because of the default in loan payments, the creditor-banks brought suit in New York to invoke the acceleration clauses of the promissory notes and recover the balances due. The Court held that the Act of State doctrine may be invoked by the defendant grounded on the principle that the courts of one country will not sit in judgment on the acts of the government of another within its own territory. That factor is particularly significant where the act of the foreign government has a public character. The Court concluded that the crucial factor is that the conduct of the Costa Rican government which prevented the payment of the notes was public in nature, and its purpose is to serve a governmental function. The Act of State doctrine, therefore, barred adjudication of issues involving the non-payment of the money owed. Indeed, as a result of the growth of international financial markets and the sovereign debt crisis, the Act of State doctrine is now being applied to purely financial transactions. NOTE: In adjudicating cases arising from purely financial transactions, there is no doubt that both the foreign sovereign and the United States courts can often assert jurisdiction over the debtor. The foreign sovereign may claim jurisdiction because the debtor is present or domiciled in the foreign sovereign's territory. (See e.g.. Allied Bank International v. Banco Credito Agricola de Cartago, 757 F.2d 516 [2d Cir.] [loan from banking syndicate to sovereign-owned debtor],

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cert, dismissed, 106 S. (t.30 [1985]). The U.S. court asserts jurisdiction over the debtor on non-domicialiary factors (such as consent to jurisdiction of U.S. courts). (Ibid .; See Callejo v. Bancomer, S.A. 764 F.2d 110 [5th Cir. 1985] [investment by an American in a foreign certificate of deposit]; See also Perez v. Chase Manhattan Bank, N.A., 61 N . Y . 2d 460, 463 N.E. 2d 5, 474 N.Y.S. 2d 689 [expropriation or an individual's bank deposits], cert, denied, 105 5. (t. 366 [1984]). A7.B. :Cases involving the expropriation of foreign branch offices of American banks may expose the limits of the Harris v. Balk (98 U.S. 215 [1905]) approach of determining debt situs solely by jurisdiction over the debtor. To illustrate: In a typical foreign branch office case, let us say, the Bank of America, Phils, branch, a new government (e.g., the Fidel V. Ramos government) has come to power and expropriated either the Philippine branch of Bank of America, a U.S bank or an individual's account of the branch. Subsequently, a foreign depositor sues the bank's head office in the U.S. for the return of the deposits. The Bank may assert the Act of State doctrine as an affirmative defense, claiming the situs of the deposit was within the foreign sovereign's territory, i.e., in the instance in which the foreign branch office was open and operating when individual accounts were expropriated. (Edgardo C. Paras, Jr., International Law Aspects of the Philippine External Debts [a doctoral dissertion], University of Santo Tomas Graduate School, 1967, pp. xvii-xviii). IS THE "ACT OF STATE DOCTRINE'' A PRINCIPLE OF INTERNATIONAL LAW? In the celebrated Banco Nacional de Cuba u. Sabbatino Case," the Supreme Court of the United States thru Mr. Justice Harlan, held that the "Act of State" doctrine is not a principle of international law. Failure to apply the doctrine does not constitute a breach of international obligation, BUT neither does international law forbid the application of the rule. The usual remedy of a citizen aggrieved by an Act of State of a foreign country is not for him to go to the courts of his own country (for his country's courts may apply the "Act of State" doctrine), but for him to exhaust the local remedies in the foreign country (including resort to its courts), and

"376 U.S. 399; 84 S. Ct. 923 (1964).

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Tailing in this, to repair to the EXECUTIVE (not judicial) authorities of hiB own State to persuade them to champion hia claim in diplomacy or before an international tribunal.™ T H E S A B B A T I N O CASE Banco Nacional de C u b a v. Sabbatino 376 U.S. 398; 84 S. Ct. 923 (1964) FACTS: In 1960, an American broker entered into a contract with a Cuban Corporation (the principal stockholders of whom were residents of the United States) for the sale of Cuban sugar. BecauBe of antagonism between the U.S. Government and the Cuban Government under Fidel Castro (and because of the eventual reduction by the U.S. Government of the sugar that could be imported from Cuba — the Cuban sugar quota), the Cuban government "expropriated" (virtually, what took place was a "confiscation") the properties and rights of the corporation. To make sure that the sugar would be shipped to the United States, the broker entered into a new contract with a Cuban governmental instrumentality, promising to make payment to the latter. The government instrumentality then assigned its right to another Cuban governmental entity (the Banco Nacional de Cuba). The bank subsequently instructed its New York agent to deliver the necessary documents (e.g., the bills of lading, etc.) to the broker, who in turn was supposed to turn over the payment (money) to the New York agent. The agent turned over the documents to the broker, but the broker refused to give the money (though said broker had already received the needed payment from its buyer). The Bank then brought this action to recover the payment from the broker, as well as to prevent Sabbatino (the receiver who had been appointed to take care of the New York assets of the Cuban Corporation) from making use of said purchase price. The first court (the District Court) ruled against the Cuban bank — stating that inasmuch as there was a violation of international law, the Act of State doctrine could not be applied. On appeal, the Court of Appeals affirmed the decision of the trial court. Aside from refusing to apply the Act of State doctrine, the Court of

"See 1 Oppenheim, International Law. Sec. 115- ILaulerpacht. 8th ed. 1955); United States v. Diekelman, 92 U.S. 520.

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Appeals relied on two letters of the U.S. State Department which apparently expressed no objection to a judicial review of Cuba's act of "expropriation." The Cuban Bank finally appealed to the United States Supreme Court alleging that in view of the Act of State doctrine, the U.S. should N O T inquire into the legality or illegality of the Cuban action and that, therefore, payment in its favor should be ordered. HELD: The Act of State doctrine can be applied — for while this is not a recognized principle of international law, neither does international law prohibits its application. In this particular case — and even though it is claimed that the Act of State in question violates international law — we should apply the Act of State doctrine in view of the following reasons: (1) There is great divergence today on the issue as to what restrictions must be placed by international law on the power of a State to expropriate the property of aliens (in fact, Communist countries recognize no obligation on the part of the taking country to pay just compensation — although they have in fact provided a degree of compensation after diplomatic efforts); (2) Secondly, if this Court will pass on the legality or illegality of the Cuban expropriation, there may be a conflict between our own Executive Branch and the Judicial Branch. If the Executive Branch decides that the act is illegal and will take proper measures to counteract the international violation, the Judiciary may embarrass the Executive if the courts will rule that the foreign act is valid (in this way, the bargaining hand of the foreign country will be greatly strengthened, with consequent detriment to American interests). Upon the other hand, if the Executive does not desire to do anything about the foreign act, and the Judiciary finds a violation of international law, the Executive will be greatly embarrassed. When articulating principles of international law in its relations with other States, the Executive Branch speaks not only as an interpreter of generally accepted and traditional rules, as would the courts, but also as an advocate of standards it believes desirable for the community of nations and protector of national concerns. In short, whatever way the matter is cut, the possibility of conflict between the Judicial

252

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and Executive Branches can hardly be avoided. (Incidentally, the two letters of the State Department do not evidence willingness by the Executive branch to a judicial testing of the validity of the expropriation; they merely reflect the desire of that Department not to make any statement bearing on the litigation.); (3) Thirdly, to disregard the Act of State doctrine would be to render titles in foreign commerce uncertain with the possible consequence of altering the flow of international trade. If the attitude of the United States courts were unclear, one buying expropriated goods would not know if he could safely import them into this country. Even where takings known to be invalid one would have difficulty determining, after goods had changed hands several times, whether the particular articles in question were the product of an ineffective State act. (4) Fourthly, however offensive to the public policy of this country and its constituent States an expropriation of this kind may be, we conclude that both the national interest and progress toward the goal of establishing the rule of law among nations are best seen by maintaining intact the Act of State doctrine in this realm of its application. We also conclude that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government to the extent recognized by this country at the time of suit in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law. The judgment of the Court of Appeals is hereby REVERSED and the case is remanded to the District Court for proceedings consistent with this opinion.

AFTERMATH OF THE SABBATINO CASE The ruling of the Court was widely criticized. In particular, Professor Myres S. McDougal (Sterling Professor of Law at the Yale Law School) said, inter alia, that while the Court in one aspect applied international law, in another aspect, it disregarded international law, and in effect validating a "lawless" act; and making it effective in the U.S. Said he:

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253

T h e international law which it did apply — in honoring the Cuban confiscations — were the principles of jurisdiction which confer upon States the competence to act. The international law which it refused to apply were the principles imposing responsibility for acts even within jurisdictional competence — the "bill of rights" — which would have protected private rights. The consequence, of this ambivalent deference to principles which should have been regarded as complementary and equally deserving of deference, was that one set of principles was applied in a way to stultify the major goals of both sets of principles: the minimization of arbitrary coercion and the securing of stability in people's expectation in cooperative activity across State lines." THE SABBATINO AMENDMENT As a consequence of the Sabbatino Case, the U.S. Congress adopted the Sabbatino Amendment to the Foreign Assistance Act of 1961. In effect, said amendment requires American Courts to decide a case on the merits (and thus disregard the Act of State doctrine) if there is an alleged violation of the principles of international law in connection with expropriation or confiscation by a foreign State of private properties. An important exception is made in any case with respect to which the President determines that application of the Act of State doctrine is required in that particular case by the foreign policy interests of the United States, and a suggestion to this effect is ruled on his behalf in that case with the Court." In view of the Sabbatino Amendment, the District Court to which the U.S. Supreme Court had remanded the Sabbatino Case, ruled that the Sabbatino Amendment is constitutional and can be given (as expressly provided in the Amendment) retroactive effect. Ordinarily, therefore, the complaint of the petitioner (Banco Nacional de Cuba) should have been dismissed; however the Court decided to first give the President a chance to suggest whether or not the foreign policy interests of the United States required the application of the Act of State doctrine."

"See Lowenfeld, The Sabbatino Amendment, 59 A.J.I.L. 899 (1965). ™Banco Nacional de Cuba v. Farr, 243 F. Supp. 957 (1965).

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254

W.S. Kirkpatrick & Co., et al. v. Environmental Tectonic Corp., International 29 I L M 182 (1990) The Act of State doctrine only precludea examination of the validity or legality of foreign governmental acts performed in that government's territory. Other considerations, such as motivation, play no part in the application of the doctrine. DIGNITY, GOOD NAME, AND REPUTATION OF A STATE The equality of States carries with it the corollary right to dignity, good name, and reputation, the consequences of which follow: (1) The right to demand that their Heads of State shall not be the object of libel, slander, or defamation of whatever kind; (2) The right to certain exterritorial rights and diplomatic immunities; (3) The right to have their symbols of authority, such as flags and coat of arms, treated with due respect; and (4) States.

The right to punish acts derogatory to their dignity as

26

SYMBOLIC OR RITUALISTIC EQUALITY To symbolize the theoretical equality of sovereign States, the alternat has been devised: this is the procedure whereby the signatories to a treaty Bign in an alternate manner (the order may be a regular one or one determined by lot), the representative of each State signing first (the name of his State appears first) the copy which appertains to his own State." REALISTIC "INEQUALITY" The dominance and primacy of the United States in Western Affairs and of Japan in Pacific Affairs, have more or less restricted **See Oppenheim, op. cit.. pp. 251-253. " S e e Oppenheim, op. cit., p. 249.

MENTAL RIGHT: EQUALITY

266

equality."** So long as self-help neans of enforcing international ya be at a handicap. The hiaodern" contempt by Borne States medieval history is a history of y is a history of powers, forces, > other hand, the question has Les ask for as much representatowers? To grant them complete iman progress; the democratic ave this effect. M

31

Chapter 8 THE FOURTH FUNDAMENTAL RIGHT: THE RIGHT OF PROPERTY AND JURISDICTION

THE RIGHT TO PROPERTY

/

To exist, a Stale must.Tiave property, i.e., domain; there a r e three kinds of domain: the\jtefBSBcial domain, the maritime of fluvial domain'and the aerialdemain. Aside from "domain," the following properties also~6eTong'to~l;he state: public buildings, fortifications, palaces, arsenals, arms, ammunitions, official residences and public vessels. 1

2

BAR What do you understand by the phrase "the territorial possession of a State?" ANSWER: In one sense, territorial possessions include a colony, a dependency, a protectorate, a suzerainty, and a sphere of influence. In another sense, it includes the territorial, maritime, and aerial domain of a State. Wilson is authority for the statement that the domain of a State consists of the sphere over and within which State authority exists. It includes the land comprising the State together with colonies and dependencies to which the State has a valid title; the maritime or fluvial domain, which extends to the water area over which the State exercises acts of sovereignty; and the aerial domain which covers the space above the land of the State. 3

'See Wilson, Handbook of International Law. p. 45. Ibid. See Wilson, Handbook of International Law. p. 46.

2

3

256

THE FOURTH F U N D A M E N T A L RIGHT: THE RIGHT OF PROPERTY A N D JURISDICTION

257

THE NATIONAL TERRITORY In the 1987 Constitution of the Philippines, the national territory is defined as follows: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the sea-bed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the -islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Sec. 1, Art. I, 1987 Constitution). NOTE: Under the 1935 Constitution the national territory was delimited as follows: The Philippines comprises all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits of which are set forth in Article I I I of the treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on the seventh day of November, nineteen hundred, and in the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction. (Sec. 1, Art. I, 1935 Constitution).

TERRITORIAL DOMAIN

^

The tanitorial domai/ inrliiHPHjfrppprHi»s nf pnhlifl dominion as well as yroperjaea_ofjprivate •J ers|hi.p. Properties ofipublic dominion include those forjtublif one, tfjose tof'public service., and those for the development of the national wealth. Thev may be exemplmedTrespectively, byjoads, by ^government -km 11 du\ga and by forest ?nd mineral landBTProperties bLprivate ownership, upon the other hand, consist ofj>aJriraonJ^l_propertieB of the govern-. merit (such as Jflpda acjnjrPfl thru qwr"*** prnreedingHt and ul those, vested in individuals, whether owned singly or collectively. wn

7

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266

Even the private properties are subject to certain inherent restrictions by the State: eminent domain, police power, and taxation. MARITIME OR FLUVIAL DOMAIN The maritime' or fluvial domainfconsists of rivers, lakes, bays, gulfs, straits, and canals. Theoretically, there are two (2) kinds of waters: (1) the internal or inland national waters (these are completely within the territory); (2) the external or territorial or maritime waters (these are those found within the maritime or territorial zone, along the coastline). THE MARITIME OR TERRITORIAL ZONE (a) Definition — t . h p laritime or territorial wme'bf a , State consist" nf that, atrip ftf w g ( e r along its coastline and ^J- over which t ° ky intprnat.innal law to exercise ^ jurisdiction fhiRtorir-nHyrthi* width has been three nautical l miles, because at the end of the 18th century, the range of artillery was about three miles or one marine league.) The range was essentially for purposes of self-defense. The rule is sometimes adverted to as the Marine League Rule or the Three-Mile-Limit Rule/ ^ ~" t

ha g t Q >

; p

(b) From what place computed: From theiandward site, the maritime belt begins at the louhigQter mark (as distinguished from the high-water mark caused by high tides). This seems to be the prevailing weight of authority. Ordinarily this low-water mark is a "normal baseline"; (see opinion of the International Court of Justice in the Fisheries case between England and Norway); however, when the coast is deeply indented, a straight line joining the points of extremity must be drawn, resulting in the straight base line theory of the International Law Commission, an official UN agency.

'See Oppenheim, op. cit., p. 444.

T H E FOURTH FUNDEMANTAL RIGHT: THE RIGHT OF PROPERTY A N D JURISDICTION

2S9

Fisheries Case Between England and Norway I . C J . Reports (Dec. IB, 1951) FACTS: In 1935, Norway issued a decree reserving certain fishing grounds along its northern coast Tor the exclusive use of its fishermen. In the decree, Norway used the normal baseline as the starting point in the measurement of Norwegian territorial waters. Is this proper? HELD: The method is in accordance with international law. j'"*-.

(c)

The seaward limits:

While the three-mile limit has been the historical width of the territorial sea or maritime belt, still this distance has been traditionally regarded merely as the minimum,* and today the rule is practically obsolete. Thirty-six years ago, only 20 out of over 70 coastal States adhered to the 3-mile rule. Indeed, after World War II, the rule was better known for its violation than for its observance. Several countries extended the limits for the following reasons: 6

(1)

the safeguarding of fisheries;

(2) as a necessary act of self-preservation ("protective jurisdiction"); (3) for punitive action, when the pursuit is continued to the open seas; (4)

for the apprehension of pirates and smugglers;

and (5) for the operation of revenue, sanitation, and police rules. 7

For several years, starting in 1958 and 1960, there had been international conferences at Geneva, New York, or some other suitable venue, for the formulation of rules on the sea. While there was tentative agreement (a "convention") on the territorial sea and the contiguous zone, which recognize the

s

Hans Kelsen, Principles of International Law. p. 220. Tolentino, T h e Philippine Territorial Sea." a speech delivered bgfo Second UN Conference on the Law of the Sea at Geneva, in his capacity as or the Philippine Delegation. 'See Oppenheim, op. cit., pp. 448-454.

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sovereignty of the coastal State over the maritime belt, but allow the right of innocent passage of foreign merchant ships, still the most fundamental question was left unanswered: namely, what is the extent of the territorial sea or the maritime zone? Several distances were proposed: 3 miles, 6 miles, 9 miles, 12 miles, even farther limits; unfortunately, not one was agreed upon. White the International Law Commission recommended a distance of twelve miles," Senator Arturo Tolentino, speaking in behalf of the Philippines, proposed that although the twelve-mile rule may perhaps be justified, still the following points ought to be considered. 1

(1) the rule should not have a retroactive effect, in other words, existing vested rights must be respected, for instance: (a) the fishing rights of foreigners inside the contiguous zone of the coastal State; (b) territorial boundaries of archipelagoes (such as the Philippines). (NOTE: The territories of the Philippines have been set forth in the Treaty of Paris between the United States and Spain — December 10, 1898 — and in the Treaty of Washington between the United States and Great Britain — January 2, 1930. Over said territories, both on land and on the sea, the United States continuously exercised sovereignty till the independence of the Philippines in 1946; after independence, the Philippines continued said exercise of sovereignty. Throughout this period, "there was no protest from anyone against the exercise of such sovereignty. This title of the Philippines to a wider extent than twelve miles of territorial sea, therefore, has both a legal and a historic basis. Such title cannot and should not be affected adversely by any new rule on the breadth of the territorial sea that may be adopted in this conference. A historic title is a generally recognized basis of acquired or established right.""

'"These are 12 nautical miles measured from appropriate baselinos iwith the straight base lines method being allowed). Tolentino. op. cit.

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261

(2) the rule should not adversely affect archipelagoes (like the Indonesian Archipelago). Archipelagoes are groups of islands with various points of extremities. The baseline for their territorial sea must be computed by drawing a line connecting said extremities, otherwise there is a danger that waters inside the archipelago may be considered as part of the open seas. In the case of the Philippines, the rule must even go further — in view of the historic basis of the country's boundaries. NOTE: In 1961, Congress approved a bill which is now a law — Rep. Act No. 3046 — "An Act to Define the Baselines or the Territorial Sea of the Philippines." The purpose of the Act "is to clarify the baselines of the Philippine territorial sea by specific description (latitude, longitude, azimuth, distance in meters). This is important so that those concernedmay know which part of our waters is inland waters and which part is territorial sea in those areas where inland waters and territorial sea meet. Under accepted rules of international law, foreign merchant vessels have the right of innocent passage in the territorial sea, but they have no such right in the inland or internal waters of a coastal State. Furthermore, there may be different rules applicable to vessels for preventing collisions at sea when they are in inland waters." Under the Act itself, "the baselines from which the territorial sea of the Philippines is determined consist of straight lines joining appropriate points of the outermost islands of the Archipelago." Sec. 2 of the Act says that "all waters, within the baselines provided for in Section One hereof are considered inland, or internal waters of the Philippines." 9

10

THE NEED FOR AN ACCEPTED LAW OF THE SEA In the UN Conference of the Law of the Sea held in New York (May 23 to July 15, 1977), then UN Secretary-General Kurt Waldheim warned of the need for an accepted law of the sea. Said he:

"If a new and broadly accepted law of the sea does not emerge thru international agreement, we face a prospect of

'See Tolentino, op. cit. '"Explanatory Note to the Act.

INTERNATIONAL LAW AND WORLD POLITICS

each State determining its own view, with ever widening claims to ocean space and resources. The acceptance of such a situation will be at the expense of justice and would risk unforeseeable possibilities of conflict."" " 1

AT LONG, LONG LAST WE NOW HAVE THE CONVENTION ON THE LAW OF THE SEA (DECEMBER 10,1962 — AT JAMAICA) After many years, there was finally signed at Jamaica on December 10, 1982 a "Convention_of the Law of the Sea." There was, however, one dismal note: the United States refused to sign the Convention. Important features of the Convention, include the following: / (1) frgnl frmrnn nf the Tnrrfcrinl Irni^ifrho air ana/p n\wtt it, and of its bed and subsouf a) the sovereignty of a coastal State extends, beyond its land territory and internal waters, and in the case of an archipelagic State, its archipelagic waters to an adjacent belt of sea, described as the TEHBJTORIAL SEA. b) the sovereignty extends to the air space over the territorial sea, as well as to its bed and subsoil (Part I I , Art.II, Sections 1 and 2). (2) Breadth of the Territorial Sea* — Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding twelve (12) nautical^ihilef measured from normal baselines (low water baselines) (Art. 6), or in localities where the coastline is deeply indented or when there is a fringe of islands, straight baselines (connecting the outermost projections') may be formed. (Art. 7, No. I ) . v^O)

rrij'if i I'fiMiiiiini n i — g /

Simply put, there are two features of this right: a)

there is a "passage"

'"•Jorge R. Coquia (a retired Justice or the Court of Appeals and later to become Legal Adviser or the Department of Foreign Affairs*, "The Third UN Conference on the Law or the Sea: Its Achievement* in the 1977 Seaaions." The Philippine Yearbook of International Law, Vol. VI, 1977, p. I.

T H E FOURTH FUNDEMANTAL RIGHT: THE RIGHT OF PROPERTY A N D JURISDICTION

b)

263

the passage must be "innocent"

Definitions: a) ^Dassagt'' means navigation thru the territorial ^ea^ for the purpose of: ^ ( 1 ) traversing that sea without entering internal waterB or calling at a roadstead (used for loading, unloading, anchoring) or port facility outside; (2) proceeding to or from internal waters as a call at such roadstead or port facility. (Art. 18, 1, a and b). [NOTE: Passage shall be continuous and expeditious. However, passage includes stopping and anchoring but only insofar as the same are incidental to ordinary navigation or are rendered necessary hy fnrf^rmjrure or distress or for the purpose of rendering assistance to persons, ships, or aircraft in danger or distress. (Art. 18, No. 2)]. ^6) Innocent passage — not prejudicial to the peace, good order, or security of the coastal State (Art. 19, No. 1). There is prejudice if the foreign ship, while on the territorial sea, engages in any of the following activities: 1) any threat or use of force against the security, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law as embodied in the Charter of the United Nations; 2)

any exercise or practice with weapons of any

kind; 3) any act aimed, at collecting information to the prejudice of the defense or security of the coastal State; 4) any act of propaganda aimed at affecting the defense or security of the coastal State; 5) the launching, landing, or taking on board of any aircraft; 6) the launching, landing, or taking on board of any military device; 7) the loading or unloading of any commodity, currency, or person contrary to the customs, fiscal, im-

I N T E R N A T I O N A L L A W A N D WORLD POLITICS

migration or sanitary laws and regulations of the coastal State; 8) any act of willful and serious pollution contrary to the Convention on thel^aw of the Sea; 9)

any fishing activities;

10) the carrying out of research or survey activities; 11) any act aimed at interfering with any system of communication or any other facilities or installations of the coastal State; or 12) any other activity not having a direct bearing on passage (Art. 19, No. 2, a to i ) . (4) ^/Criminal Jurisdiction om^Board a Foreign Ship r— 1) The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing thru the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during the passage, save only in the following cases: ) / ( a ) if the consequences of the crime extend to the coastal State; ^ b ) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; JK) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or hl

^d)' ir*sucn 'measnres^re rfece^sary^or^'tne^suppression of illicit traffic in narcotic drugs or psychotropic substances. . 2) The above provisions ao not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing thru the territorial sea after leaving internal waters. 3) In the cases provided for in paragraphs 1 and 2. the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such

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agent or officer and the ship's crew. In cases of emergency, this notification may be communicated while the measures are being taken. 4) In considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation. . 5) Except as provided in Part XII or with respect to violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any steps on board a foreign ship passing thru the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing thru the territorial sea without entering internal waters. (5)

Civil Jurisdiction in Relation to Foreign Ships

1) The, coastal State should not stop or divert a foreign ship passing thru the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. 2) The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage thru the waters of the coastal State. 3) Paragraph 2 is without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing thru the territorial sea after leaving internal- waters. (6)

1

Contiguous Zone

1) In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: / a ) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; and punish infringement of the above laws and regulations committed within its territory or territorial sea.

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2) The contiguous zone may nabtfeal nriles feBLtbfJ ^ jge~uwritorai n a is (7) Archipelagic States Use of Terms For the purposes of this Convention: (a) "archjoelagic means a State constituted wholly by one or more archipelagoes and may Include other islands; and 1

(b) "arehipelag* " meanB a frrnnp nr islands, including parts of islands, interconnecting waters and 'other natural features which are so closely interrelated thai such islands, waters and other natural features form ani intrinsic geographical, economic and political entity, or which historically have been regarded as such. y Afchiffefagic Baselines f 1) An archipelagic _S_tatP may*nraw nrxaight archipelagic baselines joining the outermost points of thVoutennosriBranqs and drying reefs of the archipelago provided that within such baselines a r e included the main islands and an area in which _the r_aiiQ.o£lhe_area of^He~water "toTh"e^area_of theJancLaniJuding__atolls, is between 1 to 1 and 9 to 1. 2) The length of such baseline shall not exceed lQOjiaulicai^Tmles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3) The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. 4) Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island.

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5) The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State. 6) If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighboring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected. 7) For the purpose of computing the ratio of water to land under paragraph 1, land areas may include water lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau. 8) The baselines drawn in accordance with this article shall be shown on charts of a scale or scales adequate for ascertaining their position. Alternatively, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted. 9) The archipelagic State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations. Measurement of the Breadth of the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with Article 47. Legal Status of Archipelagic Waters, of the Air Space Over Archipelagic Waters and of their Bed and Subsoil 1) The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in

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accordance with Article 47, described as archipelagic waters, regardless ol" their depth or distance from the coast. 2) This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. 3)

This sovereignty is exercised subject to this

Part. 4) The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed .and subsoil, and the resources contained therein. (Sr Exclusive Economic Zone) This zone shall be beyond and adjacent to the territorial sea and shall not extend beyond 20ti'nautical mileaTrom the baselines from which the breadth of the territorial sea is measured. (Arts. 55 and 57). NOTE: RP LAW OF THE SEA BOUNDARIES AND LEGISLATIVE DELINEATION The Philippine Department of Environment and Natural Resources, in a position paper stated, inter alia, the need for legislative delineation of Philippines' Law of the Sea boundaries. Thus: "The Philippines needs to properly identify its territorial boundaries thru legislation in order to maximize use of its marine jurisdiction over its territorial limits. It is now, therefore, necessary for the Philippines to formulate a comprehensive national policy as a guide for all government officials and private individuals in the implementation of the Convention of the Law of the Sea." (Priscilla R. Arias, "RP Law of Sea Boundaries Need Legislative Delineation," Manila Bulletin, Feb. 19, 1992, p. B-4). With an estimated total maritime area of 652,000 square nautical miles up to the 200-mile exclusive economic zone (EEZ), the Philippines shall adopt the following national policy:

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1. To maintain and assert its title, ownership and sovereignty over its national territory which comprises all the Philippine archipelago, islands, and waters therein; 2. To define thru appropriate legislation itB archipelagic baselines, including the Kalayaan Island Group in accordance with the provisions of the Convention of the Law of the Sea; and 3. To make sure that legislations are immediately enacted on three areas: a definition of the territorial sea not to exceed 24 nautical miles, b. the contiguous miles; and c. the EEZ not to exceed 200 nautical miles drawn from the archipelagic baselines. According to Commodore Renato Feir of the Coast and Geodetic Survey Division of the National Mapping and Resource Information Authority, around 24 nautical miles from the archipelagic baselines of the Philippines form part of the jurisdiction of the country for enforcement of customs, fiscal, immigration, and sanitary laws and regulations. Be it noted that the Philippines has further gained an estimated 360,000 square nautical miles for its 200-mile EE2 and has the sovereign right over this vast area for the exploration, exploitation, conservation, and management of the natural resources whether living or non-living, including State seabed and subsoil thereof. Under Presidential Decree No. 1596, the Philippines declares sovereign power over a cluster of about 53 islands and islets including the waters, seabed and subsoil contingent margin called the Kalayaan Island Group (Spratly Islands). Incidentally, the international Law of the Sea now being discussed by countries staking their claims over the Spratlys (i.e., the Philippines, Malaysia, China, Taiwan, Vietnam, Cambodia, and Brunei) may yet provide a harmonious relationship among said claimant-States and their neighbors. '9) RfshM, Jurisdiction and Duties of the Coastal State in the Exclusive Economic Zone' 1)

In the exclusive economic zone, the coastal State

has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural

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resources, whether living or non-living, of the watera superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, euch as the production of energy from the water, currents and winds; (b) jurisdiction as provided f o r in the relevant provisions of this Convention with regard to: ( i ) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment: (c) other rights and duties provided for in this Convention. 2) In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention. 3) The rights set out in this Article with respect to the sea-bed and subsoil shall be exercised in accordance with Part V I . J^tf The Continental Shelf* 1) / T h e c j a f l n m t a l j h B t f o f a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond Its^territorialsea throughout the natural-prolongation of its land territory to the miter^Hj^ nfthp rfmtingnr.nl margin, ~or~to a_difltancp of 900 nautili rnjlefl fromjhe baselines from w E c ^ J j ^ h r p f t H t h of tiift-tgrHtnnal apo iq rru»agi|rpH w h g r e

the outer edge of the continental margin does not extend up to that distance. 2) The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6. 3) The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the

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rise. It does not include the deep ocean floor with its oceanic ridges or the Bubsoil thereof 4) (a) For the purposes of this Convention, the coastal State Bhall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either: ( i ) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope. (b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base. 5) The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a) ( i ) and ( i i ) , either shall not exceed 350 nautical miles from the baseline from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres. 6) Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs. 7) The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by co-ordinates of latitude and longitude.

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8) Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal Stabs on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding. 9) The coastal State shall deposit with the SecretaryGeneral of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto. 10) The provisions of this Article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) 1969, International Court of Justice Denmark and the Netherlands signed an agreement on March 31,1966, delimiting the continental shelf between them. As both States were bound by the Geneva Convention on the Continental Shelf, 1956, they applied the principle laid down in Article 6(2) of the convention. The dividing line between their respective portions of the continental shelf was to be at every point equidistant from the nearest points of the baselines from which the territorial sea of each State was measured. The Federal Republic of Germany rejected that method of delimiting the continental shelf because it would give it an unduly small portion or the continental shelf. Germany had not ratified the convention. The three States reached agreement only on a very limited section of the borderline in a treaty between Germany and the Netherlands, December 1, 1964, and between Germany and Denmark, June 9, 1965. Thereupon, on February 2, 1967, all three States signed agreements to submit their differences to the International Court of Justice and to delimit their respective portions of

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the continental shelf by an agreement in accordance with the court's decision. They also asked the court to join their two cases. Germany claimed that the equidistant rule had not become customary law. Instead, it claimed, the governing principle was that each coastal State was entitled "to a just and equitable share" of the continental shelf The other two States claimed that the principle of equidistance was applicable and that the boundary should be determined "on the basis of the exclusive rights of each Party over the continental shelf adjacent to its coast on the principle that the boundary is to leave to each Party every point of the continental shelf which lies nearer to its coast than to the coast of the other Party." The question they submitted to the court was: "What principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined" by their existing conventions of 1964 and 1965? The court decided that the equidistance method was not obligatory between the Parties and that there was no other single method obligatory in all circumstances. The principles and rules of international law applicable in the case were (1) equity, taking account of all relevant circumstances in such a way as to leave as much as possible to each party those parts of the continental shelf constituting a natural prolongation of its land, without encroachment on the same type of continental shelf of the other parties; (2) if, in application of the principle under (1) there resulted an overlap, the areas of overlap should be divided between the parties in agreed proportions or, failing agreement, equally, unless they agree upon joint jurisdiction or joint exploitation. The court also gave instructions that certain factors, mainly of a geographic and geological nature, ought to be taken into account during the negotiations. In its arguments, the court first elaborated on the geographic nature of the North Sea which, with one exception, is nowhere deeper than 200 meters. It elaborated on the nature of coastlines, and pointed out that the concave or recessing coastline of a State lying between two others might be very unfavorable to that State as giving it a very small portion of the continental shelf. But the court left open at that point whether this might represent a "special circumstance" in-

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validating the equidistance principle. In taking issue with the particular form of the German argument, the court established that it was called upon to define the principles applying to the delimitation and not the apportionment of areas already appertaining to States. It recalled that as a matter of law, the rights of a State in respect to its continental shelf exist ipso facto and ab initio by virtue of its sovereignty over the land territory of which the continental shelf is an extension under the sea. There could, therefore, be no question for the court allotting equitable shares of the continental shelf in view of the fact that there was no undivided whole to be shared out to begin with. As to the Danish-Dutch contention of a universal rule making the equidistance-special circumstance principle obligatory, the court agreed that the method was very practical and certain, but not a rule of law. Moreover, the principle could produce very unreasonable or unnatural results. The plea, therefore, cannot be accepted that because the principle is in itself equitable, its results cannot be equitable. The court then found that, contrary to the contention of Denmark and the Netherlands, Germany did not by its behavior indicate adherence to Article 6 of the Convention on the Continental Shelf, for "it is not lightly to be presumed" that a State has somehow bound itself to a convention which it easily could have signed and ratified but had in fact not. The possibility still had to be examined whether Germany was bound either by "what might be called the natural law of the continental shelf, in the sense that the equidistance principle is seen as a necessary expression in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby coastal State, and, therefore, as having an a priori character of so to speak juristic inevitability"; or was bound because the equidistance principle had become a rule of positive, universal law. After examining various aspects of the first part of that question, especially pointing out in some detail that the crucial element in the law of the continental shelf is the principle of prolongation of the land territory of a State and not adjacency or proximity, and, therefore, not equidistance of a particular line, the court concluded that equidistance is not a necessary or inherent part of the law of the continental shelf. The genesis and development of the equidistance method was cited as further supporting the court's view. Indeed, the court pointed out, there Has been consensus that no one single

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method of delimitation waB likely to prove satisfactory in all circumstances; and that agreement among the parties as the way to determine a method to be used should be based on equitable principles. In addressing itself to the second part of the question, whether the equidistance principle had become a part of customary international law binding Germany, the court also reached a negative conclusion. The principle entered the convention as Article 6 not as a crystallization of an emergent or preexisting customary rule but rather on an experimental basis and perhaps in the hope of the convention parties that it might become a legal norm. The court raised the question whether the equidistance principle had become universal customary rule after its introduction into the convention. The first requirement of such a transformation would be the "fundamentally norm-creating character" of the principle. The court found that in abstracto the principle lent itself to becoming such a norm, but that in the context in which it appeared, this was not possible. Secondly, an insufficient number of States had adopted the principle. Thirdly, very little time had elapsed since the convention was concluded, too short a time to form a custom. Upon the other hand, the number of States applying the principle was too small to make up for the brevity of time during which the principle was embodied in the covenant. Fourthly, the States that did adopt the equidistance principle did not do so because they held the belief that they had to do so, yet such belief is an essential element for a custom to become binding (opinio juris sive necessitatis). And in many of these cases, the geographic situation was not comparable to that in the present case. Because the court found that there was no legal obligation to adopt the equidistance principle, there was no need to investigate whether there were any "special circumstances" justifying Germany not to apply it. The negative findings of the court so far did not mean, however, that because the convention was inapplicable and the equidistance principle was not customary law, that there were no other norms which should apply. The court then turned to a discussion of these applicable rules. The first was that under the Charter of the United NationB (Article 33) and on general legal grounds, the parties must negotiate with a view to reaching agreement. They had not done so because one side thought that the

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application of the equidistance principle was prescribed by law and the other Bide thought its non-application was prescribed by law, making further negotiations superfluous. The second rule was that principles and methods muBt be applied to the delimitation safeguarding the fundamental rule of equity. In the choice of these principles and methods, the parties must take inLo consideration certain factors in order to achieve equity. These factors, the court proceeded to enumerate. They concerned mainly the geography, geology, and resources of the continental shelf. tghts of the Coastal State Over 'the Continental Shelf 1) The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2) The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. 3) The rights of the coastal State over the continental shelf do not depend on occupation, effective or optional, or on any express proclamation. 4) The natural resources referred to in this Part consist of consist of the mineral and other non-living resources of the seabed and subsoil together with living organism belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil. Case Concerning the Continental Shelf (Libyan A r a b Jamahiriya/Malta) 1985 ICJ Rep. 13 (International Court of Justice, Jan. 3, 1985) Pursuant to a Special Agreement, the Socialist People's Libyan Arab Jamahiriya (Libya) and the Republic of Malta submitted a dispute to the International Court of Justice concerning the delimitation of the continental shelf underlying the Mediterranean Sea between the two Stales. The Court

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held: that, in general, the location of a line of delimitation should take into account the distance between the two coasts and the disparity in the lengths of the relevant sections of those coasts, and that, here, an equitable result could be obtained by adjusting toward Malta a line equidistant between the two States, thus taking into account Libya's great coastal exposure and Malta's relatively small size. Malta comprises a group of inhabited islands and an uninhabited rock that together lie approximately 163 nautical miles (about 340 kilometers) north of Libya and about 43 nautical miles (80 kilometers) south of Sicily in the central Mediterranean. Malta claimed that a line of delimitation should be drawn at an equal distance between the States. Libya argued that a "rift zone," or deep canyon, in the seabed lying closer to Malta created the natural boundary between two separate continental shelves and thus served as an appropriate dividing line. At the outset, the Court recognized that its jurisdiction was limited by the terms of the Special Agreement, and it further limited the scope of its decision to avoid conflicting with competing claims of Italy, not a party to the dispute. The Court found that the applicable law governing the case was customary international law, which required that the delimitation be effected in accordance with equitable principles, taking into consideration all relevant circumstances. In applying such principles, the Court rejected Libya's contention that the natural prolongation of the land under the sea — including the physical properties of the land — was the primary basis of title to the continental shelf. The Court acknowledged that geological features might be relevant for ascribing title to two separate continental shelves that border States separated by more than 400 miles. Geological data are not relevant, however, in determining title to seabeds within 200 nautical miles of a State's coast. Instead, the Court adopted Malta's argument that the concept of the exclusive economic zone as embodied in customary international law required that natural prolongation be defined in part by diatance from the shore, irrespective of the physical nature of the intervening seabed. Accordingly, it began the process of delimitation by tracing a provisional median line between the two coasts. It next adjusted the

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median line, out of equitable considerations, by eliminating from the baseline formed by the Maltesec coast that portion that extended to Malta's uninhabited rock. Finally, the Court adjusted the line northward toward Malta to account for (1) the fact that Malta is only a minor feature of the central Mediterranean, and (2) the marked disparity between the respective lengths of the Libyan and Maltese coastlines. It did this by first determining that the line could be no closer to Malta than could a similar line delimiting the continental shelf rights between Libya and Italy. The Court ruled that the final line must fall between Libya and Malta — at about latitude 34" 12' north — and the median line between Libya and Sicily — at about latitude 34° 36' north — a range of approximately 24 minutes of latitude. Having satisfied itself that sufficient room existed between the two coasts — some 195 minutes of latitude — to permit some shifting of the median line about threatening the security of either State or moving away from the approximate middle, the Court held that adjusting the line three-quarters of the distance toward the northernmost limit — i.e., to approximately 34° 30' north latitude — would achieve an equitable result in all the circumstances. In this decision, the Court continues the development of a growing body of law concerned with each State's rights to the potential wealth of its adjacent continental shelf. It also demonstrates that the Convention of the Law of the Sea, is, nonetheless, of major importance in international jurisprudence concerning the law of the sea. (11) The High Seas Application of the Provisions of this Part The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with Article 58. Freedom of the High Seas 1) The jpigh seas are open to all States, whether nnaitril or land-locked. Freedom of the high seas is exercised under the

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conditions laid down by this Convention and by other ruleB of international law. It comprises, inter alia, both Tor coastal and landlocked States: (a*

freedom of navigation;

(W

freedom of overflight;

(cT freedom to lay submarine cables and pipelines, subject to Part V I ; (d> freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the condition laid down in Section 2; and (fK freedom of scientific research, subject to Parts VI and XIII. 2) These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. Reservation of the High Seas for Peaceful Purposes The high seas shall be reserved for peaceful purposes. ' Invalidity of Claims of Sovereignty Over the High Seas No State may validly purport to subject any part of the high seas to its sovereignty. Right of Navigation Every State, whether coastal or land-locked, has the right to sail ships flying on the high seas. Nationality of Ships 1) Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the

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State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. 2) Every State shall issue to ships to which it has granted the right to fly its flag, documents to that effect. Status of Ships L) Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. 2) A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. Ships Flying the Flag of the United Nations, Its Specialized Agencies and the International Atomic Energy Agency The preceding articles do not prejudice the question of ships employed on the official services of the United Nations, its specialized agencies or the International Atomic Energy Agency, flying the flag of the organization. Duties of the Flag State 1) Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2)

In particular every State shall:

(a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.

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3) Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: i (a) ships;

the construction, equipment and seaworthiness of

(b) the manning of ships, labor conditions and the training of crews, taking into account the applicable international instruments; and (c) the use of signals, the maintenance of communications and the prevention of collisions. 4)

Such measures shall include those necessary to ensure:

(a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigations equipment and instruments as are appropriate for the safe navigation of the ship; (b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship; and (c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio. 5) In taking the measures called for in paragraphs 3 and 4, each State is required to conform to generally accepted international regulations, procedure and practices and to take any steps which may be necessary to secure their observance. 6) A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised, may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation. 7) Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty

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or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another Slate or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation. Immunity of Warships on the High Seas Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. Immunity of Ships Used Only on Government Non-Commercial Service Ships owned or operated by a State and used only an government non-commercial service shall on the high seas, have complete immunity from the jurisdiction of any State other than the flag State. Penal Jurisdiction in Matters of Collision or Any Other Incident of Navigation 1) In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2) In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or license shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3) No arrest or detention of the ship, even as a measure or investigation, shall be ordered by any authorities other than those of the flag State. Duty to Render Assistance 1) Every State shall require the master of a ship flying its flag, insofar as he can do so without serious danger to the ship, the crew or the passengers:

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(a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, insofar as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. 2) Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding Bafety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighboring States for this purpose. Prohibition of the Transport of Slaues Every State shall take effective measures to prevent and punish the transport of Blaves in ships authorized to fly its flag and to prevent the unlawful u s e of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free. •^Duty to Cooperate in the Repression of Piracy All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State. ^Definition of Piracy V^Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for jriv'ate ends by the crew or the passengers of a private ship or a private aircraft, and directed: ( i ) on the high seas, against another ship or aircraft, or against persons or property on board Buch ship or aircraft; and (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

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(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircrafts; (c) any act of inciting or of intentionally facilitating an act described in sub-paragraph (a) or (b). Piracy by a Warship, Government Ship or Government Aircraft Whose Crew Has Mutinied The acts of piracy, as defined in Article 101, committed by a warship, governmental ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by n private ship or aircraft. Definition of a Private Skip or Aircraft A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 101. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act. Retention or Loss of the Nationality of a Private Ship or Aircraft A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived. Seizure of a Pirate Ship or Aircraft On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by pirates and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. Liability for Seizure Without Adequate Grounds Where the seizure of a ship or aircraft on suspicion of piracy

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has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure. Ships and Aircraft Which are Entitled to Seizure on Account of Piracy A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. Illicit Traffic in Narcotic Drugs or Psychotropic Substances 1) All States shall cooperate in the suppression of illicit traffic in narcotic drugB and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2) Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic. Authorized Broadcasting from the High Seas 1) All States shall cooperate in the suppression of unauthorized broadcasting from the high Beas. 2) For the purposes of this Convention, "unauthorized broadcasting" means the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls. 3) Any person engaged in unauthorized broadcasting may be prosecuted before the court of: (a)

the flag State of the ship;

(b)

the State of registry of the installation;

(c)

the State of which the person is a national;

(d) any State where the transmissions can be received: or

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( e ) any State where authorized radio communication is suffering interference. 4) On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with Article 110, arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus. J f e f t j of Visit ( 1) Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with Articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a)

the ship is engaged in piracy;

(b)

the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under Article 109; (d)

the ship is without nationality; or

( e ) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 2) In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible considerations. 3) If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. 4) aircraft.

The

provisions apply mutatis mutandis to military

5) These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.

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• ^ 1 2 ) Right of Hot Pursuit 1) The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone, as defined in Article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. 2) The right of hot pursuit apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable in accordance with this Convention to the exclusive economic zone or the continental shelf, including such safety zones. 3) The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third Stale. 4) Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the Bhip pursued ae a mother ship is within the limits of the territorial sea, or, as the case may be, within the contiguous zone or the exclusive economic zone or above the continental after a visual or auditory signal to stop has been given at a distance which enables it to be Been or heard by the foreign ship. 5) The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. 6)

Where hot pursuit is effected by an aircraft:

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(a) the provisions of paragraphs 1 to 4 shall apply mutatis mutandis; (b) the aircraft giving the order to stop must itselF actively pursue the ship until a ship or another aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest outside the territorial sea that the ship was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit without interruption. NOTE: The "right of hot pursuit," generally confined to the hot pursuit of ships, cannot be said to embrace the hot pursuit of aircraft as well, if hot pursuit is understood as the right to intercept foreign aircraft above the high seas. While there have been occasional instances of hot pursuit of aircraft in the airspace above the high seas, such a right has rarely been claimed officially. Usually, the use of force has been justified by invoking the right of self-defense against imminent attack or the sovereign rights of a State within its own airspace. 7) The release of a ship arrested within the jurisdiction of a State and escorted to a port of that State for the purposes of an inquiry before the competent authorities may not be claimed solely on the ground that the ship, in the course of its voyage, was escorted across a portion of the exclusive economic zone or the high seas, if the circumstances rendered this necessary. 8) Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained. (13) Entry into Force (Effectivity) 1) This Convention shall enter into force 12 months after the date of deposit of the sixtieth instrument of ratification or accession.

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2) For each State ratifying or acceding to this Convention after the deposit of the sixtieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day following the deposit of its instrument of ratification or accession, subject to paragraph 1. 3) The Assembly of the Authority shall meet on the date of entry into force of this Convention and shall elect the Council of the Authority. The 11 rat Council shall be constituted in a manner consistent with the purpose of Article 161 if the provisions of that Article cannot be strictly applied. 4) The rules, regulations and procedures drafted by the Preparatory Commission shall apply provisionally pending their formal adoption by the Authority in accordance with Part X I . 5) The Authority and its organs shall act in accordance with resolution II of the Third United Nations Conference on the Law of the Sea relating to preparatory investment and with decisions of the Preparatory Commission taken pursuant to that resolution. (14) Amendment 1) After the expiry of a period of 10 years from the date of entry into force of this Convention, a State Party may, by written communication addressed to the Secretary-General of the United Nations, propose specific amendments to this Convention, other than those relating to activities in the Area, and request the convening of a conference to consider such proposed amendments. The Secretary-General shall circulate such communication to all States Parties. If, within 12 months from the date of the circulation of the communication, not less than one half of the States Parties reply favorably to the request, the Secretary-General shall convene the conference. 2) The decision-making procedure applicable at the amendment conference shall be the same as that applicable at the Third United Nations Conference on the Law of the Sea unless otherwise decided by the conference. The conference should make every effort to reach agreement on any amendments by way of consensus and there should be no voting on them until all efforts at consensus have been exhausted.

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(15) Amendment by Simplified Procedure 1) A State Party may, by written communication addressed to the Secretary-GeneraI of the United Nations, propose an amendment to this Convention, other than an amendment relating to activities in the Area, to be adopted by the simplified procedure set forth in thia article without convening a conference. The Secretary-General shall circulate the communication to all States Parties. 2) If, within a period of 12 months from the date of the circulation of the communication, a State Party objects to the proposed amendment or to the proposal for its adoption by the simplified procedure, the amendment shall be considered rejected. The Secretary-Genera I shall immediately notify all States Parties accordingly. 3) If, 12 months from the date of the circulation of the communication, no State Party has objected to the proposed amendment or to the proposal for its adoption by the simplified procedure, the proposed amendment shall be considered adopted. The Secretary-General shall notify all States Parties that the proposed amendment has been adopted. (16) The International Tribunal of the Law of the Sea General Provisions 1) The International Tribunal for the Law of the Sea is constituted and shall function in accordance with the provisions of this Convention and this Statute. 2) The seat of the Tribunal shall be in the Free and Hanseatic City of Hamburg in the Federal Republic of Germany [now known simply as Germany]. 3) The Tribunal may sit and exercise its functions elsewhere whenever it considers this desirable. 4) A reference of a dispute to the Tribunal shall be governed by the provisions of Parts XI and XV. Composition 1) The Tribunal shall be composed of a body of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the Bea.

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2) In the Tribunal as a whole, the representation of the principal legal system of the world and equitable geographical distribution Bhall be assured. Membership 1) No two members of the Tribunal may be nationals of the same State. A person who for the purposes of membership in the Tribunal could be regarded as a national of more than one State shall be deemed to be a national of the one in which he ordinarily exercises civil and political rightB. 2) There shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations. Nominations and Elections 1) Each State Party m a y nominate not more than two persons having the qualifications prescribed in Article 2 of this Annex. The members of the Tribunal shall be elected from the list of persons thus nominated. 2) A t least three months before the date of the Secretary-General of the United Nations in the case of the first election a n d the Registrar of the Tribunal in the case of subsequent elections shall address a written invitation to the States Parties to submit their nominations for members of the Tribunal within t w o months. He shall prepare a list in alphabetical order of all the persons thus nominated, with an indication of the States Parties which have nominated them, and shall submit it to the States Parties before the seventh d a y of the last month before the date of each election. 3) The first election shall be held within aix months of the date of entry into force of this Convention. 4) The members of the Tribunal shall be elected by secret ballot. Elections shall be held at a meeting of the States Parties convened by the Secretary-General of the United Nations in the case of the first election a n d by a procedure agreed to by the States Parties in the case of subsequent elections. Two thirds of the StateB PartieB shall constitute a quorum at t h a t meeting. The persons elected to the Tribunal shall be those nominees w h o obtain the largest number of votes and a two-thirds majority of the States Parties present

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and voting, provided that such majority includes a majority of the States Parties. Term of Office 1) The members of the Tribunal shall be elected for nine years and may be reelected; provided, however, that of the members elected at the Bret election, the terms of seven members shall expire at the end of three years and the terms of seven more members shall expire at the end of six years. 2) The members of the Tribunal whose terms are to expire at the end of the abovementioned initial periods of three and six years shall be chosen by lot to be drawn by the Secretary-General of the United Nations immediately after the first election. 3) The members of the Tribunal shall continue to discharge their duties until their places have been filled. Though replaced, they shall finish any proceedings which they may have begun before the date of their replacement. 4) In the case of the resignation of a member of the Tribunal, the letter of resignation shall be addressed to the President of the Tribunal. The place becomes vacant upon receipt of that letter. THE OPEN SEAS AND THE PRINCIPLE OF FREEDOM OF THE SEAS The open&eaa>are those not included in the maritime zone of any State; the sea by its very nature cannot be the property of any State." Freedom of the seas fheans that no part of the sea as such can be subjected to the sovereignty of any State and hence cannot be incorporated into the territory of any State. Thus, Justice Story has said: 11

12

"Upon the ocean then, in time of peace, all possess an entire equality. It is the common highway of all, appropriated "Hugo Grolius. Mare Liberum, "The Freedom of the Seaa." Chapter V. Convention on the High Seaa — signed at Geneva. April 29, 1958; 52 A.J.I.L 842 (1958). '*Hans Kelsen, Principles of International Law, pp. 224-225. See also Art. 2 of the Convention on the High Seas.

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to the use of all; and no one can arrogate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful business without interruption; and whatever may be that business, she is bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is sic utere tuo non alienum laedas." 13

• Be it noted, however, that the former testing grounds of open sea — more than 400,000 sq. miles — for hydrogen bombs could hardly be reconciled with the international law principle of freedom of the seas, unless the meaning of self-defense and reasonable measures therefor be unduly strained. It is fortunate that today, with the Nuclear Test Ban Treaty, testing in the open sea among other places, has been prohibited. 14

,s

N.B.: In the New Vision, an Uganda government-owned publication, concern has been made to this nuclear proliferation resulting in its call to the UN for relief: T h e proliferation and use of nuclear, tactical, and hightechnoloy weapons have wrought havoc in the last 40 or so years. This is a deplorable State of affairs. The nuclear countries — The U.S., the [former] Soviet Union, Britain, France, and China — should all come forward and push very strongly to reduce the weapons of mass destruction. But these members of the United Nations Security Council should also reduce the manufacture of less-deadly weapons. In the major conflicts that have taken place after the Second World War, conventional weapons were used. The proliferation of arms traffic encouraged by the big players has made it very easy for small States to indulge in wars that have brought untold hardships to their peoples. It is time that the UN came in and monitored the reduction of these arsenals. To deter bellicose States, members of the UN should Beriously consider having the UN act as the "The Mariana Flora. II Wheaton 1. Margo))§, The Hydrogen Bomb Teat and International Law. 64 Yale L.J. N

629. li

MacDougal. The Hydrogen Bomb Teal and International Law on the Sea. 49 A.J.I.L., p. 361.

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only repository of the remaining weapons of masB destruction. The UN would then extend its role in peacekeeping and arms-monitoring to all nations." (Cited in World Press Review, Dec. 1991, p. 10). Because the shadow of the BOMB still looms, can peace be still achieved? President Rajendra K. Saboo of Rotary International in his message "Who Has Seen the Face of Peace?" [The Rotarian, February 1992, p. 5), said in part: "When the world's great leaders invoke the rhetoric of peace, they explain its complexities. To them, peace is something difficult to achieve. [F]or peace begins with you — by reaching out to your neighbor, by opening your heart, by bridging the differences between people and communities. "[SJervice must be the first step to peace, because peace grows within the heart. Peace thrives with service and understanding, according dignity to our fellowmen. Peace is nourished by truth and principles, and it is strengthened when we overcome our differences to work together, finding common ground for a noble cause. "Not merely is service the essence, but the likeness of peace. This is a vision we can share, based on trust and affection. 'Look Beyond Yourself to see the true face of peace. [Thus it is,] for a world at peace is not a dream, nor a wishful fantasy. [This is realizable by]working in tandem with the United Nations and its agencies [toward the culmination of] the flowering of peace in joint initiatives for the health and welfare of others [in] our special quest for peace. Director Leonard Hausman of the Institute for Social and Economic Policy in the Middle East, at Harvard University, in his "Peace Will Pay in a New Middle East" (The World Paper, March 1992, p. 7), opined: "Peace may allow political leaders to divert their energy to dealing with the tensions generated by the process of economic reform [anent the] growing consensus that no matter which way the political winds blow, Israel's Occupied Territories, the West Bank and Gaza, will achieve economic autonomy, and that a viable Palestinian economy could increase trade between Arab countries and Israel and thus help secure peace." "The groundwork for transition to economic autonomy WBB realized [when] Israeli leaders liberalized economic poli-

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cies in the West Bank and Gaza. At the same time, Palestinian leaders recognized that they needed to develop an economic base for their political future. There is still no formal agreement to coordinate the principal steps taken by Israeli authorities, such as: licensing of existing and new firms; allowing the operation of new and previously unlicensed credit institutions; seeking a new chartered Palestinian bank; and reducing Israel's barriers to Palestinian exports. But a small group of U.S., Arab and Israeli economists and othere hope that buried in those decisions may lie the seeds of an IsraeliJordan-Palestinian economic union similar to Jordanian Crown Prince Hassan's dream of a Middle East Benelux. "Until the leaders are free to do so, economic growth — and with it the Peace dividend — could take a long time since it may be contingent upon reduced tensions. And in even the most optimistic scenarios, resolution of the Arab-Israeli conflict would eliminate only one of the sources of tension in the region. The Gulf War was a good example of the types of intra-Arab tensions that can explode into regional conflict.'' And in another part of the world, the March 14, 1992 issue of the Economist said: "The end of Soviet communism was applauded everywhere except in China, Vietnam and Cuba. The replacement of the Soviet Union by the Commonwealth of Independent States has scared the world. A disintegrating nuclear-armed superpower is a nightmare. Concern has focused on the exSoviet Union's nuclear weapons — about 27,000 of them, from artillerly shells to warheads on missiles. Military officials claim that tactical nuclear weapons have been withdrawn from all former Soviet republics, except Ukraine and Belorussia. The remainder [is expected) to be back in Russia by July [1992]." Take the case of Russia, which has taken the place of the former Soviet Union as a permanent member of the United Nations Security Council. Said Time (March 16, 1992, pp. 11-15): "Hundreds of millions, tens of billions of dollars could all be spend vainly trying to prevent Russia from falling prey to its own darkest tendencies. Now the cold war is over and [the] communist system has been defeated, but that is no guarantee that Russia will become a lot more liberal and a

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lot more democractic than it haB ever been in its thousand years of history. Which is where the West muat come in, adding to the $5.2 billion aid package [U.S. President George] has already offered Russia, the argument iB compelling that the West must see beyond the moment and do more to assist Russia thru its metamorphosis. "[Because] more than food and financial aid needed, the reformers must feel that the world backs their struggle for democracy. For if Russia's struggle for democracy as well. It is one of the century's great turning points, and if the U.S. is to prove itself a superpower in more than military terms, it must meet the challenge with the full commitment it deserves." One reform plan, in fact, calls for the West to build faith in the Russian ruble, Moscow wants the seven industrial powers to put up $5 billion. This fund would, in theory, stabilize the currency by being available to suport it at a single, reasonable exchange rate. With a stable, convertible currency, foreign investors would then come in, because they could calculate their profits and losses accurately and, more important, take earnings out of the country. Another calls for the West to postpone or cancel much of Russia's $61.5 billion debt to foreign banks and governments until the reforms are working. Now an associate member of the International Monetary Fund (IMF), Russia, thru its president, Boris Yeltsin, is expected to enforce a stiff regime of deficit reduction, tax collections, and credit restrictions. Once in place, this austerity program will give Russia the IMF seal of approval, allowing the country to approach other governments and private leaders for new money in addition to what it can draw from the Fund itself. Of course, the attainment of world peace is easier said than done, any agreement addressed toward the assurance of a just, lasting and stable peace is as remote as an agreement on what causes war and violence. For that matter. Professor Daniel S. Papp, in his "Contemporary International Relations: Frameworks for Understanding" (1988 ed.), has proposed prescriptions on how best to achieve peace, namely: (1) predicting peace thru purchase of more arms; (2) advocating arms limitations and disarmaments measures; (3) main-

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Laining a balance of power thai should exist between potentially hostile forces; (4) achieving world order thru a world State; (6) realizing world peace through law; (6) prescribing religion in one form or another as an antidote to the problem of war and violence; (7) lessening man's tendency toward war and violence by way of equitable distribution of wealth; and (8) particularizing a type of social structure within States that would lessen man's willingness to visit death and destruction on his fellowmen. The search, nevertheless, for reliable methods to assure peace continues. Peace and stability remain elusive goals. World order, whatever its form, is no nearer reality now than it was at the beginning. But as long as the search for peace continues, there is reason for optimism that man may successfully meet the challenges raised by war, peace, and violence. THE SUBSOIL AND THE AERIAL DOMAIN The space below a State's territory belongs to the State: in principle, this ownership may even extend to the center of the earth. This rule is delimited only by the analogous space below the territories of the neighboring States, and in the case of a littoral or coastal State, by the Bpace below the open sea. 16

On the matter of aerial jurisdiction, there are at least four (4) different points of view: (1) The air space above the territory of the State is as completely subject to the State sovereignty as are the land and the fluvial domains themselves (this theory is^followed by most Stales.) 17

(2) Free aerial navigation, subject to security measures: the air, like the high and open seas, is open to free navigation by all aircraft, domestic and foreign, subject to the right of the states to provide for the security of the territory. (3) Two zone theory: there is a lower zone of territorial air space, and a higher unlimited zone of free air space. 18

(4) Sovereignty Bubject to an easement: while the sovereignty over the air space remains with the subjacent State, it is "See Kelsen, op. cit., p. 225. "See Oppenheim, op. cit., p. 475. "Ibid., pp. 469-470.

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subject to the servitude or easement of innocent passage for foreign civil aircraft.* 9

Present Rules on International Aviation: Certain rules have already been formulated with respect to international aviation, which incidentally consists of two kinds — (a) regular airline services with scheduled landings and departures; and (b) all other forms of international aviation. With reference to regular airline services, it may be said that they are possible today only because of bilateral agreements or conventions on the matter. Upon the other hand, in the case of all other forms of international aviation, accord has been reached on the following points: (1) Without prior permission but subject to the rights of the subjacent State to require landing, flight in transit (i.e., without landing or stopping) may be made. (2) Without prior permission of the subjacent State, stops may be made for non-traffic purposes (e.g., refuelling, repair). (3) Every State has the right of cabotage (the monopolistic right to transport goodB and persons between points in the same State) in the matter of aerial navigation. (Note: Traditionally, cabotage had been confined to coastwise or shipping matters). (4) Aircraft carry the nationality of the State of registration (registration cannot be effected in more than one State). These principles have been agreed upon in the 1944 Convention of International Civil Aviation in Chicago, USA. The first two are often"referred to as the "Two Freedoms Agreement.'' Of the so-called "Five Air Freedoms," only these two met with common consent. The three "freedoms" which remain disputed are the following: * (1) the freedom to unload in a foreign State traffic coming from the State of registration of the aircraft; (2) the freedom to load in a foreign State traffic destined for the State of registration;

"Lawrence. Principles of International Law. pp.

143-144.

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(3) the freedom to load and unload in the foreign State traffic to and from a third State. 30

Note: While the aforementioned principles have not changed for almost half a century, airlines, particularly, Asian, are "being buffeted by turbulence: worldwide recession, fare wars, and cutbacks in corporate travel. Many airlines are forecasting a rough landing. (See Michael Westlake, "Asian Airlines, Rough Skies Ahead." lAviation-Fasten Seat Belts], Far Eastern Economic Review, Aug. 26, 1993, pp. 44-50). THE RIGHT OF JURISDICTION As understood in the Law of Nations, the right of jurisdiction accorded a sovereign State consists of: *^tl) its territorial jurisdiction (which is its authority over persons and properties within the territorial boundaries); and ,(21 its personal jurisdiction (which in this sense is its authority over its nationals who are now in foreign territory). 21

Under international law, a State may exercise jurisdiction under such principles as the protective principle, the universality principle, and the passive personality principle. The Draft Convention on Jurisdiction drawn up thru the Harvard Research in International Law (29 Am. J.l.L. Supplement PT. II [1935]), defined "protective principle" as follows: "A State may exercise jurisdiction with respect to certain types of acts wherever, and by whomever committed where the conduct substantially affects certain vital State interests, such as security, its property, or the integrity of its governmental processes." Under customary international law, the "universality principle" is applicable to universally condemned crimes like piracy. It iB believed that future developments of the rule of law applicable to outer space and celestial bodies Bhould work out the basis under which the universality principle could be extended to these areas. With regard to the "passive personality principle," the Harvard Research in International Law has defined it as when "a State " S e e Brierly, The Law of Nations, pp. 185-186. " S M Feowick. International Law, p. 176; Wilson, Handbook of Interr lional Law, p. 88.

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may exercise jurisdiction with respect to any act committed outside its territory by a foreigner which substantially affects the person or property of a citizen." Nevertheless, the Lotus case (Lotus, PCIJ, Ser. A, 10 [1927]) has rejected the validity or the "passive personality principle." DETERMINING THE NATIONALITY OF BUSINESS ENTERPRISES In the book, Law Among Nations: An Introduction to Public International Law (1992), author Gerhard von Glahn, in his characteristic language, briefly discussed how the nationality of business enterprises like corporations or partnerships is determined, thus: "Corporations enjoy the status of legal or juristic persons and, therefore, can be said to be endowed with nationality similar to the manner in which a natural (human) person possesses nationality. The traditional Anglo-American determinant of a corporation's nationality was domicile or more specifically, the place of incorporation. In the case of unincorporated associations, nationality was determined on the basis of the State in which they were constituted or in which their governing body normally met or was located. Among most European States, upon the other hand, for a long time the concept was preferred that a corporation's nationality was determined either by the location of its home office (siege social) or a minority vein — by the place in which the principal business operations were carried on. "In the case of business enterprises without legal personality, such as partnerships, no nationality as such can be assigned to the firm. The interests involved are those of the partners, and the nationality of the latter determines which State is entitled to represent the firm's interests. It does not matter, for purposes of determining the 'nationality' in question, where the operating establishment of the partnership is located: the nationality of the partners is the decisive factor." RESTRICTIONS ON TERRITORIAL JURISDICTION While the sovereignty of a State within its territorial confines iB generally absolute and unlimited (subject only to the demands of the natural moral law), still there are certain recognized re-

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sthctiooB thereon — limitations imposed by the international legal order, of which the State is necessarily an important part. Among these restrictions are the following: (1)

the State of being a condominium;

(2)

the existence of spheres of influence;

(3) the State of being a colonial dependency or a colonial protectorate or a trust territory; (4)

the existence of easements and servitudes;

(5)

the principle of exterritoriality;

(6)

the principle of extra-territoriality;

(7) the rules on the jurisdiction over crimes committed on board foreign ships inside territorial waters; and (8) the presence of a leasehold or the existence of treaty stipu lations.

A condorruriium (literally, a co-ownership) is a territory under the joint authority or sovereignty of two or more States; it is also used to signify the actual exercise of such joint rule." This may rise by virtue of an agreement between the governing powers, the State subjected to such joint jurisdiction may or may not be a party to said agreement. Examples of condominia are the following: (1) The Condominium over Samoa by the United States, Great Britain, and Germany; and (2) The condominium over Sudan by England and Egypt. Exercise of authority may be effectuated thru a single representative jointly agreed upon. SPHERES OF INFLUENCE A sphere of influence is a country or region, usually backward politically or economically underdeveloped, in which a State or States claim and are allowed exclusive rights to colonize, exploit natural and " S e e Hans Kelsen. Principles of International Law. p. 218.

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economic resources, or eventually annex.** The State or States so asserting their rights insist on preventing other States from taking over the territory, although they themselves (the former) do not assume the responsibility of formally governing the region. The right is often stipulated in treaties with States likely to be prejudiced. * It has been said before that Communist Cuba is eyeing Central American States (such as Nicaragua, El Salvador, Jamaica, Guatemala Guyana) as possible modern centers of influence. 8

25

COLONIAL DEPENDENCIES, COLONIAL PROTECTORATES, AND TRUST TERRITORIES A colonial dependency is a region occupied by settlers from a "mother State"; a colonial protectorate is a backward region under the protection of a State. (Note: This is not the "protectorate" discussed in the preceding chapters; a "protectorate" is a dependent State, while a "colonial protectorate" is not a State.) A trust territory has been previously denned. It is clear that whatever "sovereignty" may be exercised by these regions cannot in any sense be regarded as "absolute." EASEMENTS AMR tFRVITUDFfi As understood in the international legal order, easements or servitudes have the same meaning they possess in the field of civil or national law. Hence Oppenheim says that they are exceptional restrictions, generally perpetual in nature, made by treaty or resulting from tacit agreement, on the territorial supremacy of a State, by which a part or the whole or its territory is, in a limited way, made to serve a certain purpose or interest of another State.* As distinguished, however, from civil law concepts, the easements or servitudes in Public International Law are generally considered merely as rights in personam, not rights in rem. 6

Classification of international servitudes: (1) From the standpoint of the source of the right, international servitudes may be: a

Funk and Wagnall's Dictionary. **See Brierly, The Law of Nations, pp. 151-152. "See Bulletin Today, April 23, 1980. "See Oppenheim, op. eit., 429-431.

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(a) natural servitudes — if imposed either by the moral law (e.g., easement of involuntary entrance or of arrival under stress) or by international customs (e.g., easement of innocent passage or the free passage of foreign ships, whether merchant or public, thru the maritime belt of a State's territory). (Note:. In the Convention on the Territorial Sea and the Contiguous Zone, 1958 Geneva Conference on the Laws of the Sea, the right of innocent passage of merchant Bhips was recognized). 77

(b) State servitudes — ifimpoBed by a treaty (e.g., the passage of troops of another State). (2) From the standpoint of the nature of the right, international easements may be: (a) positive servitudes — if the servient State is required to allow the performance of certain acts on its territory (e.g., fishing rights); and (b) negative servitudes — if the servient State i6 required to abstain from certain acts which it ordinarily could properly do (e.g., the duty not to construct fortifications in certain designated places). 28

The Easement of Involuntary Entrance or Arrival Under Stress: Whenever there is a. grave moral or physical necessity therefor, a foreign ship is allowed to enter the ports of a State, even without prior permission, in order to make the proper repairs. This is the easement of involuntary entrance or of arrival under stress. Fines for the entrance should not be imposed; neither are the goods on the vessel made to pay duties. Of course, should the vessel in distress enter into contracts in the port, it has to be responsible for its obligation thereon. Important crimes aboard the ship may also come under the jurisdiction of the territory. 29

30

31

The Easement of Innocent Passage: The easement of innocent passage allows a foreign merchant or public vessel to pass thru the maritime zone of the littoral State provided: " S e e Corfu Channel Case, 1949, I.C.J. Report*, p. 4. " S e e Oppenheim, op cit., p. 434. "See II Moore, A Digest of International Law, pp. 340-341. " 3 Wheat 59. "See People v. Wong Cheng, 49 Phil. 729.

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(1) that the passage is really "innocent," i.e., there must be no ulterior motive Tor the paeeage, and all the regulations of the State concerned muBt have been complied With; and (2) that there ia only a "passage" (a passing thru, with generally no loading or unloading of any person or goods). In the Convention on the Territorial Sea and the Contiguous Zone, all ships of all States, whether coastal or not, shall enjoy the right of innocent passage thru the territorial sea. Passage may include stopping or anchoring, but only insofar as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress. With respect to submarines, the Convention requires them to navigate on the surface and to show their flag. May the easement of innocent passage be suspended? Generally, yes. Thus, Art. 16 of the Convention specifically provides that the coastal State may without discrimination amongst foreign ships, suspend temporarily in specified areas of its territorial sea, the innocent passage of foreign ships, if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. However, there shall be no such suspension in straits which are used for international navigation. 32

The Corfu Channel Case, International Court of Justice Judgment of M a r c h 25, 1949, April 9, 1949, December 15, 1949. FACTS: While passing thru the Corfu Channel in Albanian territorial waters, some British warships suffered damage, and the members of the crews were killed. The injuries were caused by mine explosions in the Channel. While Albania herself did not lay the mines, circumstantial evidence showed that the mines could not have been laid without the knowledge of the Albanian Government. After the accident, Britain sent several warships into Albanian waters to carry out mine-sweeping operations. This was done without the consent of Albania. The case was brought to the attention of the United Nations, and as a consequence of the recommendation of the Security Council, the matter was referred to the International Court of Justice. Britain sought damages for

^'Signed at Geneva, April 29, 1958.

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the injuries and deaths; upon the other hand, Albania, in a counterclaim, accused England of having violated Albanian sovereignty by the entrance of warship, prior to the explosions, into Albanian waters, and by the subsequent unauthorized mine-sweeping operations. HELD: (a) By the judgment or March 25, 1949, the Court upheld its jurisdiction (which incidentally had previously been challenged by Albania). (b) By the judgment or April 9, 1949, the Court decrees that Albania was liable Tor the explosions and Tor the resultant damages, in view of the fact that the mines could not have been laid without the knowledge or Albania; hence Albania could be held as ultimately responsible. By the same judgment, the Court decided that the original entrance of British warship was a case of "innocent passage" because of the generally admitted principle that States are entitled, in time of peace, to send even their warships thru international straits without first obtaining the leave of the coastal State. The Court also said that "unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage thru straits in time of peace." Upon the other hand, the mine-clearance operations of Nov. 12 and 13, 1946 were considered an inadmissible intervention in the affairs of Albania, and therefore, a violation of Albanian sovereignty. (c) In the third and last judgment of December 15, 1949, the Court declared that Albania should pay the United Kingdom a total Bum of 644,000 pounds sterling for the damage caused to the ship and as compensation for the deaths or personal injuries suffered by the members of the crew. (NOTE: Albania has NOT yet paid this amount). Portuguese Enchlaves Case Portugal v. India (International Court of Justice) FACTS: To go to the Portuguese Enclaves in India, Portugal wanted to obtain a right of passage over Indian territory. India, however, did not want to permit this passage.

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Portugal sued India in the International Court of Justice alleging that India's prevention of the right of passage formed part of a campaign which India had been carrying on since 1950 "for the annexation of Portuguese territories." The Portuguese authorities, thus, wanted the Court to rule that India should put an immediate end to the tense situation by permitting the Portuguese right of passage. HELD: (a) Portugal has a right of passage over the intervening Indian territory "to the extent necessary for the exercise of Portuguese sovereignty over the Enclaves and subject to the regulation and control of India, in respect of private persons, civil officials and goods in general." (b) However, Portugal does "not have such a right of passage in respect of armed forces, and ammunition." ( N O T E : Sometime later, India finally seized Portugueseheld territories in India, stating that its act was not aggression, but merely a recovering of "its own territory"). THE PRINCIPLE OF EXTERRITORIALITY • Exterritoriality is the fiction in international law by virtue of which certain foreign persons and their things are exempted from the jurisdiction of a State on the theory that they form an extension of the .territor^oX_0ieiJ^-OiKri_State. Traditionally, mplomatic immunities have been premisedorTThis "exterritoriality" but in recent years the thought has grown that if ever diplomatic immunities continue to exist, it is because they are given as concessions of the national law of a State to assure full freedom in the exercise of diplomatic functions. 33

THE PRINCIPLE OF EXTRATERRITORIALITY \/ExtroJemtoriaiity fs the exemption of foreign persons from the laws and jurisdiction of the State in which they presently reside, an exemption which can exist only by virtue of a treaty/stipulation to this effect. ^

3

See Fen wick, International Law, p. 648.

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/ While extra territoriality deals with the exemption of persons only, exterritoriality exempts persons and things; ejctra-territorv ality can exist only because of a treaty, while exterritoriality is generally premised on an international custom. * 3

A provision on ^Mii*l*irritoi-ifi|fty* allows the foreigners to be governed by their own diplomatic or consular tribunals. The privilege had its historical origin in the Middle Ages. In recent years, China and Japan have been notable examples of countries with whom stronger StateB have had "extraterritorial rights." Recall that in 1869, Japan did away with the provision; China did the same much, much later. Allied Bank International v. Banco Credito Agricola de Cartago 757 F. 2d 516 ( U . S . Court of Appeals, 2d Cir., Mar. 18, 1985 Acts of foreign governments purporting to have an extraterritorial effect should be recognized by U.S. courts only if they are consistent with the law and policy of the United States. Since the Costa Rican Government's unilateral attempt to repudiate private commercial obligations was inconsistent with U.S. law and policy, the court refused to recognized the extraterritorial effect of the Costa Rican government's decrees.

In several treaties, whether or not extraterritorial rights have been granted, there usually is a mrtst-fayorPiLnatinn (MFNXcLiuse — a clause which in effect provides that a State pledges to give to the other State-signatory whatever privileges or concessions the first State may give to third States.! Thus, if we (in the Philippines) have such a clause in a treaty with Japan, whatever rights we may accord to other countries we should also give to Japan. If the clause is reciprocal, Japan would also give us the same treatment. If all the StateB with which the Philippines will have treaties will have such a clause, the resultant consequence will be that all States will be equally favored; hence, none will be the

"Ibid.

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"most-favored." Clauses on this matter may either be conditional (subject to certain other stipulations) or unconditional; they may also be unilateral or reciprocal. In early-1993, the U.S. almost cancelled an M F N status it earlier accorded to China owing to the la Iter's notorious human rights record. On May 17, 1993, the United States said it hoped to restore momentum in its ties with China and would consider the view of the U.S. business community in any move to attach conditions on trade privileges. Winston Lord, U.S. Assistant Secretary of State Tor East Asian and Pacific Affairs, said Washington was, however, adamant, it wanted to see more progress in China's human rights record, and curtailment of alleged arms sales. "There has been some progress but just not enough progress," Lord said. "We do not want to isolate China. It is an important country," Lord said at the end of two days of talks in the Bruneian capital on security and political issues with officials of the Association of Southeast Asian Nations ( A S E A N ) . Washington offers most-favored-nation ( M F N ) status to most of its trading partners, making them eligible for the lowest available tariffs on their exports. China's inclusion must be renewed each June by the U.S. president. (Philippine Star, the U.S. Wants to See More Progress on China Human Rights," May 18, 1993, p. 12). Evidence of a widening trade gap between the U.S. and China has emerged at a time when Beijing seeks a revewal of its M F N . The Commerce Department reported that the U.S. trade deficit took an alarming 29% j u m p in March 1993 — partly because of the gap between what China sells to America and what America exports to China. There was also new evidence that China had already achieved economical superpower status, perhaps even replacing Germany as the third largest economy behind the U.S. and Japan. The Pacific Economic Cooperation Council, a private group, agreed, saying China was running neck and neck with Germany, and doing much better than earlier estimates have suggested. New York Federal Reserve President Gerald Corrigan, speaking of the Foreign Policy Association, said that "unless something very unfortunate... happens in the near future, China in economic and financial terms is going to be a very very major player." Part of this powerful growth, which stands in stark contrast to economic activity among the traditional economic giants of the Group of Seven (G-7) industrial countries, reflects vast and unbalanced trade with the U.S., analysts said.

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The Commerce Department, in reporting U.S. trade problems for March 1993, said the gap with China widened to $1.46 billion from $1.17 billion in the previous month. For the first three months of 1993, the deficit with China is running at $4.2 billion compared with $3.4 billion in the same period a year earlier. The deficit was $18.3 billion in 1992, a substantial jump from the $12.7 billion in 1991. Surging imports from Japan helped drive the overall U.S. trade gap to $10.21 billion in March, the highest level in nearly four years. The deficit with Japan jumped to $5.26 billion from $4.13 billion, accounting for 52% of the total gap. Legislation has been introduced and is under discussion with the Clinton administration that would allow M F N status to go into effect but would require China to meet certain requirements or face substantially higher tariffs. These include progress on human rights, prevention of exports of good6 made by forced labor, ending unfair trade practices and adhering to guidelines on transfer of missiles. [Business Star, "U.S. Considers M F N As China Becomes Trade Superpower," May 25, 1993, p. 9). On June 4, 1993, President Bill Clinton decided to extend MFN status to China. While the fight over renewing China's lowtariff trade status has finished — for 1993, now American companies with interests in China can start worrying about whether President Clinton will renew it this year (1994). Alone among the major U.S. trading partners, China's "mostfavored-nation," or M F N , trade status must be approved every year. Congress has tried to use that Bince the Tiananmen Square repression in 1989 to tie human rights demands to China's $25 billion-a-year trade with the United States. The annual uncertainty that trade conditions could be imposed — and that Beijing might retaliate with a trade war — presents one more problem in trying to do business with one of the world's biggest and most promising economies. "Anyone who's contemplating direct investment in China has to be worried," said Peter Mangione, president of the Footwear Distributors and Retailers of America, whose members rely on supplies of ChineBe-made shoes. That uncertainty has not disappeared. Unlike President Bush, who routinely vetoed efforts by Congress to tie MFN to human rights gains, Clinton promised to pressure Beijing. And wheo he formally gave China a one-year extension of M F N , he said, it would be the last time unless China improves its human rights record. "I don't want to isolate China.

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I want to do what's good for the Chinese people. But I think standing up for American values, and values in China, is the w a y to go," the U.S. president said. China's Foreign Ministry, in a s t a t e m e n t issued in Beijing, attacked Clinton's move as a violation of trade agreements and interference in its internal affairs. "If the U.S. side should insist on its way, it can only seriously impair Sino-U.S. relations and their economic and trade cooperation," said the statement carried by the official Xinhua newB agency. U.S. Congres has shown it wants to go further. A bill submitted with support from House and Senate leaders would have given China low tariffs but set strict conditions before the M F N could be renewed in 1994. Among other thingB, Beijing would have to accept human rights monitors, end its repression in the annexed Himalayan kingdom of Tibet, and stop selling missiles abroad. The bill's sponsor. Rep. Nancy Pelosi, the Chinese government's sternest critic in Congress, Bays Beijing would not respond to anything except the threat of trade sanctions. Business leadere say that could provoke a trade war, cost thousands of American jobs and hurt Hong Kong, the thriving capitalist enclave that re-exports many Chinese goods to America. "If you impose sanctions that you know they can't or won't meet, what are you going to do next year?," said Roger Sullivan, a business consultant and former head of the U.S.-China Business Council in Washington. He said it is equivalent to "postponing the date you revoke M F N . " If Beijing decided to retaliate, Sullivan said, "People might be surprised it's a lot more painful than they thought it w a s . " China has quietly risen to the top ranks of U.S.-trade partners in t h e past five years. In 1992, Americans bought $25 billion worth of goods "Made in China" — everything from tennis rackets to television sets. More important to Americans, China bought $7.5 billion in U.S. goods — mostly jetliners, machine tools and other high-value manufactured items. Industry groups say that paid for 150,000 American factory jobs. (See Manila Bulletin, " M F N Debate Centers on 'Made in China,' " June 2, 1993, p. B-8). Just a little over two month after, China was at it again. And this time, the Clinton administration took its first step to punish Ch ina for peddling dangerous weapons — without immediately jeopardizing Ameican business plans to cash in on the Asian giant's economic figure. In announcing limited sanctions in response to China's sale of missile technology to Pakistan, the U.S. State Department al-

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layed the American business community's worst fears, but also stirred worries that booming U.S.-Chinese business dealingB may occasionally be interrupted or even derailed by Washington's various quarrels with Beijing. U.S. officials stressed that the sanctions, which will cost U.S. companies about $500 million annually in lost sales, are required under U.S. law and are the minimum that the administration could have imposed. .The sanctions package mostly covers U.S.-made equipment used in satellites that the U.S. either sells or sends to China for launches. Included are rocket systems and rocket sub systems, including such things as reentry vehicles and systems related to warheads. Other items on the list include flight control s y s t e m s , avionics equipment, launch-support equipment, software and certain computres. The sanctions would only block new sales; items for which U.S. companies have already received export licenses may be shipped. Although both China and Pakistan are being penalized, nearly all the sale6 are to China, U.S. officials said. Some business leaders acknowledged that the penalties were the minimum the U.S. could impose once it was determined that the illegal transfer had occurred. Don Anderson, president of the U.S.-China Business Council and a former China specialist in the State Department, called the decision "unfortunate" b u t said "it's not going to derail" economic relations between the t w o countries. But Mr. Anderson and others worry that their competitors in other nations may rush to fill the void created by the U.S. sanctions. Because this action is required by U.S. law and not by terms of an international agreement, America's allies and business competitors — such as Britain, France and Japan — have no legal obligation to impose Bimilar restrictions on their companies, he noted. Of course, China, which is a major seller of weapons, could be in for more penalties from the Clinton administration, which has made blocking sales of dangerous weapons a major foreign policy priority. For one, U.S. officials suspect that a ship that was headed for Iran contained chemical weapons components; Beijing, for its part, has agreed to an inspection of the vessel at a port in Saudi Arabia. And Gary Milhollin, director of the Wisconsin Project on Nuclear Arms Control, says that China also may be violating or skirting U.S. law by supplying missile technology and manufacturing capability to Iran and Syria, two nations that the U.S. hats 36 supporters of international terrorism.

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The U.S. aerospace industry, which these days views China as a crucial customer, is trembling over the potential impact of the sanctions and their fallout. Industry officials are particularly fretful that Beijing will retaliate by boycotting a slew of items that are not on the State Department's hit list. If that happens, "welll have fired a few Americans to show that we're indignant," said Joel Johnson, a vice president with the Aerospace Industries Association. Other high-tech concerns are worried as well. Edward Schmidt, president and chief executive of Alpha Solarco Inc., which derives 75% of its total sales from exports to China, has grave concerns about the sanctions. His worry: how China will retaliate. Alpha Solarco, based in Cincinnati, makes solar energy manufacturing equipment. An Alpha Solarco-Chinese joint venture is building a plant in China to make huge solar energy systems for use by Chinese utilities as an alternative to coal. "The problem is, what happens when the Chinese reciprocate? And they will. They're going to come back and say: 'We're going to impose a duty on your American goods.' These things are never friendly," Mr. Schmidt says. Many companies expressed cautious relief that the announced sanctions were limited. Hughes Aircraft Co. has launched a major reorganization of international divisions, mainly to accelerate its China expansion. The General Motors Corp. unit is hurriedly examining their impact on its efforts to sell satellites and related wireless telephone systems (an area of major potential technology transfer), and myriad other products that could be seen as having dual defense and commercial applications. "Obviously, Hughes has a great deal of commercial expectation in China and U.S. government actions are of concern to us," says Gareth C.C. Chang, corporate senior vice president of marketing for Hughes Aircraft. U.S. exports to China totaled $7.3 billion in 1992, a 19% increase over the previous year, according to the U.S. Commerce Department. But China would have far more to lose if it gets into a tit-for-tat with America over the sanctions. China's sales to the U.S. — consisting mostly of low-techs, inexpensive items — totaled about $25 billion (in 1992, as already mentioned), leaving the U.S. with an $18 billion trade deficit. Direct investment by U.S. companies in China in 1992 was $269 milllion according to the Commerce Department, a figure that may be dramatically understated because it reflects the first port which U.S. money hits. So the $8.5 billion that U.S. companies had directly invested in Hong Kong in

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1992 may include substantial investment in China. (Robert S. Greenberger, "U.S. Sanctions China for Sales of Weapons," Asian Wall Street Journal, Aug. 26, 1993, pp. 1-2). U.S. -JAPAN TRADE WAR "[TJhe trade war between [the United States and Japan] goes on with increasing fury, with America suffering irreversible reverses as grimly reflected in her chronic trade deficit with Japan. It is significant that the consensus among the major trading partners of Japan is that her actual policy with regard to imports is woefully bereft of any element of reciprocity. Japan is free to trade in America and Western Europe, but the latter are not free to trade in Japan." (M.P. Aquino, "U.S.Asia-Pacific Policy," Manila Bulletin, April 7, 1993, p. 8). Consider, for instance U.S. concerns about barriers to foreign companies bidding on Japanese Government construction contracts. (The Foreign Post, "Hosokawa Welcomes U.S. Sanctions Postponements,'* Vol. 1, No. 41, Oct. 28-Nov. 3, 1993, p. 1). TRADE RELATIONS AND THE GATT A complex, ongoing process, is the formulation of a comprehensive policy for a nation's international trade relations. Trade policy is a product of attitudes, laws, regulations, and objectives which determine the rules for international trade relations. Shortly after World War I I , the free world trading partners engaged in global planning to reduce trade barriers in order to encourage freer trade. In 1948, they met in Havana to complete a draft of the Charter of the International Trade Organization (ITO). However, when the U.S. Congress failed to ratify the ITO treaty, the organization failed. Thereupon, the U.S. turned to the General Agreement on Tariffs and Trade (GATT) that had been drafted in Geneva in 1947. The U.S. was able to join the Contracting Parties to G A T T by executive agreement under authority delegated to President Harry Truman under the Reciprocal Trade Agreement Act of 1934. The basic concept of G A T T is to liberalize international trade. Its main activities fall into three (3) categories: (1) tariff bargaining; (2) quantitative restrictions; and (3) settlement of disputes.

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In reality, G A T T is not an international organization, per ae, but a trade agreement. Despite this, it haB evolved into an international organization .which sponsors tariff negotiations, settles disputes, and generally administers the G A T T agreement. The basic document mentions only "Contracting Parties" and an "Executive Secretary." However, there are a number of committees that have been activated over the years. The most important of these is the Council, composed of representatives of G A T T members, who deal with matters between working sessions. The Council meets, as needed, and exercises advisory powers and makes up an agenda for each session. In addition, there is a Trade and Development (TDC); the Balance of Payments Committee; Committee I I , an agricultural committee; and the Trade Negotiations Committee. After setting down a basic set of rules under which international trade bargaining can take place, the idea of G A T T is for this eventuality to result in the drafting of a master agreement that will encompass the results of tariff negotiations and will include protective clauses which will prevent evasion of tariff concessions. There are three basic methods of which G A T T deals with the abatement and elimination of tariffs and other disruptive trade practices, namely: One. Common rules of trade that give a "most favored nation treatment." Two. Commitments to observe negotiated tariff concessions and not to initiate other restrictive devices. Three. Special divisions to promote the trade of developing countries. GATT operates thru annual meetings, where the Contracting Parties carry on separate negotiations with each of the other Contracting Parties on a bilateral basis. When a Contracting Party has completed a series of negotiations, its concessions to each of the other Contracting Parties are merged into a master agreement. The master agreement represents a Contracting Party's combined commitments to all other Contracting Parties. This means that if a country gives a tariff concession to another country, it gives the same concession to all countries that adhere to GATT. Allowable exceptions are: (1) Manufactured products from developing countries may be given preferential treatment over those products from industrial nations; (2) Concessions given to other members of a

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regional trading bloc, do not have to be given to other nations; and (3) Nations that discriminate againBt products from a given nation may not necessarily be given the moat favored treatment by the nation whose products are discriminated against. G A T T sets forth a general rule prohibiting the use of quantitative import restrictions, Buch as, import quotas. There are, however, four (4) exceptions to this rule: (1) protection of domestic agricultural support programs; (2) to redress a balance of payment problem; (3) for economic development; and (4) national security. A number of disputes are resolved by bilateral consultations between the members. However, when a dispute is not settled bilaterally, it may be taken to the collective membership. Referred to a "panel" on complaints appointed by the Contracting Parties, Baid panel hears the dispute and makes a recommendation to the Contracting Parties. Now should the recommendation not be observed, the complaining party may be authorized to suspend the implementation of its trade obligations to the other party. THE URUGUAY ROUND Currently, the 7-year old Uruguay Round of trade talks involving the 108-nation negotiations, which aim to liberalize hundreds of billions of dollars of trade in order to stimulate economic growth and create jobs, has been paralyzed. The talkB should have finished four years ago (1990) but got bogged down in disputes between the European Community and major farm exporters, especially the United States, over cutting agricultural BubBidies. The dispute had paralyzed all other work, including negotiations that were hardly related, on bringing services under free-trade rules for the first time and on cutting import tariffs. G A T T Director-General Peter Sutherland set an April 1994 date for the signing of a trade liberalizing accord and issued h i s sternest warning yet about the costs of failure. Challenging governments to show political leadership and resist protectionist pressure, Sutherland warned: "Let no one be under any illusion, failure to reach agreement ... would undermine the multilateral trading system with unpredictable economic, political, and even security consequences." (Remarks made during the August 31, 1993 meeting of G A T T s top level Trade Negotiations Committee). Fears are growing that French demands to renegotiate a farm agreement between the European Community (EC) and the U.S.

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may dash chances of wrapping up the Uruguay Round trade accord as it would undermine one of its central planks. Germany, traditionally one of Europe's main free trade proponents, thru Chancellor Helmut Kohl, has voiced its sympathy for the French objections to cuts in farm subsidies. After meeting French Prime Minister Edouard Balladur, Belgian Foreign Minister Willy Claes also spoke in favor of limited renegotiation of the EC-U.S. deal. Belgium currently holds the EC's rotating presidency. QUERY: Article 4 of the Charter of the Economic Rights and Duties of States provides: "Every State has the right to engage in international trade and other forms of economic cooperation irrespective of any differences in political, economic, and social systems. No State shall be subject to discrimination of any kind based solely on such differences." Unfortunately, there is bound to be controversy as to what constitutes a "discrimination." Thus, if under a trade treaty between State A and State B, the parties agree to grant to each other special reciprocal State privileges, e.g., by way of reduced customs duties, is State X entitled to complain of discrimination if goods exported from its territory to these States continue to be subject to the former amount of duty?Ansu>er: If State X were a party to a treaty with these States, providing for most-favored-nation treatment, the inequality of customs privileges would clearly amount to discrimination. (See the Case Concerning Rights of Nationals of the United States of America in Morocco [1952] ICJ 176 at 192 et seq.). Nonetheless, in the absence of any such treaty with a most-favored-nation clause or obligation, it is difficult to accept the view that the grant of reciprocal trade privileges between two States, inter partes, can represent a discrimination as against a third State. (See the Case of Oscar Chinn, Pub [1934] PCIJ Series A/B, No. 63). Case: The Barcelona Traction, Light and P o w e r Co., L T d . (Second Phase) 1970, I C J 3 One overriding general principle is that an investmentreceiving State, while bound to extend some protection in law

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to the investments concerned, does not thereby become an insurer of that part of the investing State's wealth corresponding to such investments. Certain risks must remain.

THE RULES ON THE JURISDICTION OVER CRIMES COMMITTED ON BOARD FOREIGN SHIPS Whether a crime committed aboard a pUbhc vessel (such as a battleship) took place on the high seas or within our territorial waters (or maritime zone), the country whose flag the vessel carries has jurisdiction on the theory that the vessel is an extension of the territory of the said State. When the crimes have been committed aboard private or merchant vessels, the following rules apply: (1) If the crime occurred on the high seas, the country of the flag of the vessel has jurisdiction. Thus, if the vessel carries the French flag, Philippine courts have no jurisdiction except, of course, in the instances enumerated under Art. 2 of the Revised Penal Code, thus: "Art. 2. Except as provided in the treaties and laws of preferential application, the provisions of [the Revised Penal Code of the Philippines] shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who — a) should commit an offense while on a Philippine ship or airship; b) should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; c) should be liable for acts connected with the introduction into these Islands of the obligations and securities mentioned in the preceding number; d) while being public officers or employees, should commit an offense in the exercise of their functions; or e) should commit any of the crimes against security and the law of nations." 51

" A r t . 2, Revised Penal Code.

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(2) If the crime took place inaide Philippine territorial waters — two theories have generally been used to determine the question of jurisdiction: the English rule (which emphasizes the territoriality principle) and the French rule (which stresses the nationality theory). y/

(a) The English Rule — Here the territory where the crime "was committed (Philippines) will have jurisdiction except: 1) in matters relating to the order and discipline in the vessel; and 2) those which affect solely the shipB and its occupants such as minor or petty criminal offenses committed by members of the crew. 36

J&onch Ruler — Under this rule founded on the opinion of the French Council of State in 1806, the State whose flag is flown by the vessel, would have jurisdiction except if the crime affects the peace, order, security, and safety of the territory 37

In the case of People v. Wong Cheng,™ the Philippine Supreme Court expressly stated that the English Rule obtains in the Philippines, and as authority therefor, it cited the case of U.S. v. Look Chaw,™ which it had previously decided, but which on the contrary had applied the French, not the English Rule. Be that as it may, the difference between the two rules is largely academic and theoretical, the two rules being essentially the same. Thus, if aboard a German ship anchored in Manila Bay, the crime of murder is committed, under the English Rule, the Philippines would have jurisdiction in view of the general rule; under the French theory, the Philippines also have jurisdiction under the exception for the e indeed affects the peace and security of the territory. Whether follow therefore the English or the French rule on the matter is not significant:, the effect is the same. Mention, however, must be made of two (2) pertinent rulings by our Supreme Court:

r

" S e e Hyde, International Law, Vol. I, p. 739. " S e e Brierly, The Law of Nation*, p. 180. 4 6 Phi). 729. 1 8 Phil. 573. M

a

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(1) The mere possession of opium aboard a foreign vessel in transit iB not triable by our Courts because mere possession thereof, without actual use within the territory, is not regarded as a disturbance of the public order.* 0

(2) Upon the other hand, "to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of the public order here established, because it causes such drug to produce its pernicious effects within our territory. It seriously contravenes the purpose that our Legislature had in mind in enacting the aforesaid repressive statute (the Opium Law), and is, therefore, triable in our Courts." *' BAR A French vessel in transit is anchored along a pier at the Port Area, Manila. There was found in a cabin of one of the members of the crew, who is a Frenchman, a package of opium. The French sailor admitted possession of the same. May he be criminally prosecuted for illegal possession of opium in our courts? Why? Suppose the package of opium was lowered from the boat and placed on a banca alongside the vessel ready to be brought ashore, may a criminal prosecution be filed in the Philippine Courts? Why? ANSWER: (a) No, he cannot be successfully prosecuted for illegal possession of opium aboard a foreign vessel in transit is not triable by Philippine Courts. The act is not an offense against our public security or safety.* 2

(b) Upon the other hand, if the opium has already been lowered from the boat to the banca, the offender may be prosecuted because the act would be an open, pernicious violation of our law on the matter. Clearly, in this case, the intent is to bring the prohibited drug to our shores, for the possible use of the inhabitants in our territory. 43

*°U.S. v. Look Chaw, 18 Phil. 673. "People v. Wong Cheng, 46 Phil. 729. "U.S. v. Look Chaw. 18 Phil. 573. "See People v. Wong Cheng, 46 Phil. 729.

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niuh Asaali, el al v. Commissioner of Customs L-24170, Dec. 16, I960 FACTS: On Sept. 10, 1950 at about noon time, a Philippine customs patrol team on board Patrol Boat St-23 intercepted five (5) sailing vessels on the high seas between British North Borneo and Sulu, while they were heading towards Tawi-tawi, Sulu. The vessels are all of Philippine registry, owned and manned by Filipino residents of Sulu. The cargo consisted of cigarettes without the required import license (hence, smuggled). They were seized by the patrol boat. Issue: May the seizure be made although the vessel was on the high seaB? HELD: (Thru then Mr. Justice Enrique M. Fernando, later to become Chief Justice): Yes, for the following reasons: (a) The vessels are of Philippine registry, hence under the Revised Penal Code, our penal laws may be enforced even outside our territorial jurisdiction. (b) It is well-settled in International Law that a state has the right to protect itself and its revenues, a right not limited to its own territory, but extending to the high seas. {Church v. Hubbart, 2 Cranch 187, 234). THE PRESENCE OF A LEASEHOLD OR THE EXISTENCE OF TREATY STIPULATIONS A leasehold in international law generally allows the lessee full powers of possession for a period of time over the territory of the lessor. The agreement naturally impairs the exercise of sovereignty of the lessor-State. Some forms of leases are the following: (1) A leasehold that would make the lessor-State retain only N O M I N A L sovereignty, actual jurisdiction and control being transferred to the lessee-State. Examples: (a) (1898). (b)

Lease by Kwang-Chau-Wan by China to France Lease of Port Arthur by China to Russia (1898).

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NOTE: In turn. Port Arthur was leased by Russia to Japan in 1905 (end of the Russo-Japanese War). (2) A leasehold for certain construction purposes, the lessee-State agreeing to pay "rent." Example: Lease of a certain part of Panama to the United States for the construction of the Panama Canal (an inter-ocean canal). (3) A leasehold for a stipulated number of years for the installation and maintenance of military bases. Example: The now abrogated Philippine-United States Military Bases Agreement (entered into on March 14, 1947) for the mutual protection of the two countries. American bases were established in the Philippines by virtue thereof. THE PHILIPPINE-UNITED STATES MILITARY BASES AGREEMENT (NOW TERMINATED ) As amended, the rules on criminal jurisdiction as provided for in the Bases Agreement are as follows: (1) Exclusive Jurisdiction (a) The Philippines has exclusive jurisdiction over members of the U.S. Armed Forces or civilian component and their dependents with respect to offenses punishable by Philippine law, but not by U.S. law. (Art. XIII 2a). (b) The military authorities of the United States have exclusive jurisdiction over persons subject to the military law of the United States with respect to offenses punishable by U.S. law, but not by Philippine law. (Art. XIII 2b). (2) Concurrent Jurisdiction With respect to offenses punishable both by Philippine and by U.S. law, the Philippines shall have the primary right to exercise jurisdiction in all offenses, except in the following cases (in the following cases, be it noted the U.S. has primary jurisdiction): (a) OffenBeB committed by persons subject to U.S. military law against the property or security of the United States. [NOTE — A "security" offense against a State shall include:

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1)

treason against the State

2) sabotage, espionage, or violation of any law relating to official secrets of that State, or secrets to the national defense of that State] b) Offenses committed by persons subject to U.S. military law — against the property or person of: 1)

a member of the U.S. armed forces;

2)

a member of the civilian component; or

3)

a dependent.

(c) Offenses committed by persons subject to U.S. military law — arising out of any act or omission done in the performance of official duty. (Art. XIII 3 a,b). Example: Inside Subic Naval Base, an American lieutenant raped a Filipino girl, who was innocently visiting the base. What court will have jurisdiction over the offense committed? ANS.: The Philippine court will have primary jurisdiction under the amended Bases Agreement. The fact that crime was committed inside an American Military Base is immaterial — for while indeed the crime was committed by an American lieutenant (a person subject to U.S. military law), the fact remains that the victim is not a member of the United States Armed Forces nor a member of its civilian component nor a dependent. The other exceptions can have no application for the crime was not committed against the property or security of the United States; neither is the crime of rape one done in the performance of official duty. (3) Waiver of Jurisdiction The Agreement allows a waiver by the State having the primary jurisdiction — provided that notification is made as soon as practicable. Thus, under Art. XIII 3c, "if the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where the other State considers such waiver to be of particular importance."

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(4)

323

Persona Over Whom There Is No Jurisdiction

It should be noted that the military authorities of the United States have no right to exercise jurisdiction over persons who are nationals of, or ordinarily merely residents in the Philippines unless they are members of the United States Armed Forces. (Art. XIII, 3, last par.). (5) Carrying-Out of Death Sentence May the United States military authorities carry out a death sentence under the Bases Agreement? The Agreement expressly states that "a death sentence shall not be carried out in the Philippines by the authorities of the United States if the Legislation of the Republic of the Philippines does not provide for such punishment in a similar case." (Art. Ill, 7a). (6) Prohibition Against Double Jeopardy If trial has been conducted for a particular offense by one State, may the other State conduct trial for the same offense? In other words, does the prohibition against "double jeopardy" (ordinarily understood) apply? Yes, by express provision of the Agreement. Thus, Art. XIII (8) provides: "Where an accused has been tried in accordance with the provisions of this Article by the authorities of the Republic of the Philippines or by the authorities of the United States, and has been acquitted, or has been convicted, and is serving, or has served, his sentence, or has been pardoned he may not be tried again for the same offense within the same territory by the authorities of the other State. However, nothing in this paragraph shall prevent the military authorities of the U.S. from trying a member of its forces for any violation of rules or discipline arising from an act or omission which constituted an offense for which he was tried by the authorities of the Republic of the Philippines." (7) Effectivity of Amended Rules on Criminal Jurisdiction The amended rules on criminal jurisdiction are already in fact being enforced by both governments. They became effective on August 10, 1965 according to "A Revised List of and An Index to Philippine Treaties and Other International Agreement," (compiled and prepared by the Division of Treaties, Office of Legal Affairs, Department of Foreign Affaire).

824

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QUERY: MAY A U.S. BASE COMMANDER IN THE PHILIPPINES BE HELD IN CONTEMPT BY OUR COURTS OF JUSTICE? Sergeant Ronald E. McDaniel, a member of the U.S. Air Force stationed at Clark Air Base, Philippines was one of the accused in a forcible abduction with attempted rape case filed at Angeles City. One of the witnesses summoned to appear was Sergeant Bernard Williams, also of Clark Air Base. On Jan. 16, 1970, Sgt. Williams was not able to appear at the court hearing, having already departed from the Philippines. The Court later asked the Base Commander, Col. Averill F. Holman to show cause why he should not be held in contempt for failure to bring Sgt. Williams to Court. The U.S. Government ordered Col. Holman N O T TO A P P E A R , and for this purpose, the Colonel's commanding officer issued a certificate stating that the non-appearance by Holman was a D U T Y imposed by superior authorities. In view of this development, the Angeles Court of First Instance (CFI) (thru Judge Ceferino Gaddi) ruled that the Colonel was guilty of contempt of Court. In the motion for reconsideration, Col. Holman alleged that Sgt. Williams, who was now in the United States, had been able to obtain an injunction from the U.S. District Court for the District of North Dakota prohibiting the U.S. Air Force from transferring him to the Philippines, on the theory that the transfer would amount to extradition despite the absence of an extradition treaty between the U.S. and the Philippines, citing Valentine v. U.S., 229 U.S. 5 (1936). Judge Gaddi denied the motion for reconsideration, and ordered the arrest of Col. Holman. The order was not served, and Col. Holman was eventually able to depart from the Philippines, on a new assignment, because of the reluctance of the Philippine Department of Foreign Affairs to prevent such departure. The Department reasoned out that the question of whether or not Holman should be held guilty of contempt was not a judicial matter but one to be resolved "in the corridors of diplomacy." Incidentally, one of the authors of this humble book was one of the amicus curiae invited by the Court to help it in the disposition of the contempt case. (See Order of March 11,1970, CFI of Pampanga and Angeles City). His position was that the question ought to be threshed out thru diplomatic channels. As will be noted, the good Judge differed from the co-author's opinion. For whatever it may be worth, the co-author's memorandum to the Court, dated March 20, 1970, follows in full:

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The undersigned counsel (invited by this Honorable Court to act as amicus curiae in its order dated March 11, 1970, the invitation being accepted in a telegram dated March 14, 1970), respectfully submits the following memorandum: I

THIS HONORABLE TRIBUNAL HAS, IN THE OPINION OF UNDERSIGNED AMICUS CURIAE, N E I T H E R THE P O W E R T O C I T E FOR C O N T E M P T T H E BASE A U THORITIES INVOLVED, NOR THE POWER TO ENFORCE A N Y J U D G M E N T FOR C O N T E M P T W H I C H I T M A Y PROMULGATE ON THE MATTER.

While the power to cite for contempt is said to be inherent in a court of justice, still this power may be exercised only over persons and entities over which the tribunal can acquire and effectively enforce its jurisdiction. Now then, it is submitted that this Honorable Court can neither acquire nor effectively enforce jurisdiction over the base officers involved, in view of the following consideration: 44

(a) A suit against said base officers, in their capacity as such, is virtually a suit against not only the Armed Forces of the United States in the Philippines, but also against the United States itself. It is well known in Public International Law that unless there is consent thereto, a suit against a foreign state of government, militates against the sovereign equality of states. * 44

(b) Hypothetically assume that for reasons of its own, the United States Government (thru for example, the U.S. President or the superior officers at the Pentagon) had ORDERED the base officers involved NOT TO APPEAR PERS O N A L L Y NOR TO PRODUCE THE ACCUSED, it is evident that despite a clear violation of the Base Agreement, the base officers would only be following the orders of superior authorities. Even were we to assume the orders to be illegal.

" A Court cannot punish for contempt if it has no jurisdiction I In Re Hall 10 Mich. 210; hi Re Morton, 10 Mich. 208) or where it has no jurisdiction to inquire as to the particular matter. (Holman v. Austin, 34 Tex 668) . (See 13 CJ 29). "•See Max Wulfsohn, et al. v. Russian Socialist Federated Soviet Republic, 234 N Y . 372-1923.

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still the same would be an A C T OF S T A T E , and virtually, we would be suing the foreign State itself. (c) With the exception of the crimes referred to in the Bases Agreement (both in the original and the amended versions) (incidentally, contempt by the base authorities is not referred to therein), the Philippine Government has NO JURISDICTION over the U.S. Armed Forces in the Philippines (the commanders and the members). (See Raquiza v. Bradford, 75 Phil. 50; Tubb v. Griess, 78 Phil. 249). As aptly stated by Oppenheim-Lauterpacht: "Whenever armed forces are on foreign territory in the service of their home State, they are considered E X T E R R I T O R I A L and remain under its jurisdiction. A crime Committed on foreign territory by a member of these forces cannot be punished by the local civil or military authorities but only by the commanding officer of the forces or by other authorities of their home State." (Lauterpacht: Oppenheim's International Law, Vol. I, p. 759). Ub

(d) A s s u m i n g that a V I O L A T I O N of the Bases Agreement has been made, a domestic tribunal certainly has no jurisdiction to punish said violation thru civil or criminal proceedings, much less via summary contempt proceedings. Violations of treaties or executive agreements can only be threshed out at a conference table by the duly accredited representatives of the States involved.

Mb

U p o n the other hand, the U.S. Military Forces abroad have been instructed by the Joint Chiefs of Staff not to interfere in P U R E L Y I N T E R N A L AFFAIRS: "In applying policy in reference message to overseas areas, it must be recognized that a well.settled principle of international law is that one nation may not interfere with the internal afTairs or another. In all countries where our forces are stationed, we are guests of a host nation. In most countries, our rights and privileges are specifically delineated by status of Forces Agreements (in the Philippines, by the Bases Agreement). Our personnel do not have the right or privilege of participating in mass picketing, demonstrations, or any other group or individual action designed to alter the policies, practices, or activities of the local inhabitants who are operating within the framework of their own laws. Accordingly, such actions by members of the U.S. Armed Forces in foreign countries are prohibited.' (Unclassified JCS Message 2190, August 22, 1963. amplifying unclassified message DEF 344531, July 18, 1963, A.J.I.L. — Vol. 58. January, 1964. No. 1, p. 167).

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In this connection, an interesting case involving the Panama Canal Zone may perhaps be cited; In Dayle v. Fleming, 219 F. Supp. 277, U.S. District Court Canal Zone, July 8, 1963 (referred to in the American Journal of International Law, Vol. 58, Jan. 1964, No. 1, pp. 191-192), the salient facts were as follows: Plaintiff sought an injunction restraining the Governor of the Panama Canal Zone from among other acts; flying the Panamanian flag alongside, and at an equal height with the United States flag on the ground that such acts would violate U.S. sovereignty and laws. The Canal Zone District Court denied the injunction on the ground that the issue of impairment of sovereignty in the Canal Zone was a matter, not for the Courts, but for the executive and legislative branches of the Government in their conduct of foreign relations.**' While the court felt that the acts complained of were confusing and reflected a position of weakness that would lead to further misunderstanding and discord, it concluded: "What nation is sovereign is only between the treatymaking powers of the nations involved, and is not a question that is up to the courts. A decision by the Courts that the U.S. is or is not sovereign in the Canal Zone would be unilateral in effect. It would be binding on the people of the U.S. but would have no force on the people of other nations." (e) One way of formulating a conclusion on any given proposition is to view the matter from the side of the other party involved. What, for instance, would be our position if for a violation (imagine or otherwise) of the Bases Agreement, an official of the Philippine Government (say an Army General or a cabinet secretary, or a member of the judiciary) would be required by the U.S. Military courts (inside the Bases or otherwise) to explain why he should not be cited for contempt? It is believed by the undersigned that the answer is clear; we will question the jurisdiction of said military tribunals; more, we will claim that the matter should be threshed

"'In Max Wulfsohn el. al. v. Russian Socialist Federated Soviet Republic 234 NY 372 (1923), among the remedies suggested were negotiation and reprisal. Indeed, interpretation by the national courts of one Slate cannot bind the other, that made by an international tribunal ought to have a conclusive effect. (See Times-Maroon Nationality Dacran Cam, P.C.l.J. Pub. Serv. B., No. 4. pp. 29-30).

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out over diplomatic conference tables by the two governments concerned. The undersigned counsel is, of course, aware of the zeal- OUB position taken by our own Supreme Court on matters where foreign States have intentionally or otherwise chosen to disregard our judicial processes. Thus in the case of Tes-tale Estate of Idonah Slade Perkins: Renato Tayag v. Benguet Consolidated, Inc., L-23145, Nov. 29, 1968, the Court held, thru Mr. Justice Enrique M. Fernando [later to become Chief Justice] that the refusal of the New York administrator to obey an order of the Philippine Court is derogatory to the dignity of the Philippine judiciary; nonetheless, be it observed that in said case, no contempt proceedings were ever instituted. II

EVEN ASSUMING T H A T THIS T R I B U N A L HAS THE POWER TO CITE FOR C O N T E M P T THE BASE A U T H O R I T I E S I N V O L V E D ( A N D T O E F F E C T I V E L Y ENFORCE ITS JUDGMENT T H E R E O N ) , S T I L L IT W O U L D SEEM FROM THE RECORDS T H A T A C T U A L L Y OR CONSTRUCTIVELY NO C O N T E M P T HAS BEEN COMMITTED.

It would seem from the records of Lhe case available to the undersigned that, even assuming that this Honorable Court has the power to cite for contempt the base authorities involved, still no contempt, whether actual or constructive, and whether direct or indirect, has been committed. Firstly, it would seem that the Base authorities have been trying to cooperate: a conference in chambers was made, with Lt. Col. Hodges in attendance (according to the communication and certifications of General McNickle) on certain occasions, the accused in the criminal case were represented by counsel; even in the last proceeding held, American lawyers (presumably connected with the case) were present in court. Secondly, the non-appearance of the accused has been explained (perhaps not satisfactorily, but nonetheless explained) by references to a shift in assignments and to an alleged loss of the certificates [certifications] re: the custody. Thirdly, while the Base Commander did not personally appear, it may be assumed that he was represented in Court by Major Whisenant. When a person has been ordered to explain why

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he should not be cited for contempt, said person need not appear in person to make the explanation; he may properly be represented by another. 44
CONCLUSION It is respectfully suggested that in view of what has been said in this memorandum, the motion to cite the base officers for contempt be denied, and instead, an imperative request be made with the Secretary of Foreign Affairs and the Secretary of Justice to settle the issues involved with the U.S. Embassy and the Base Authorities. Done in Mandaluyong (for Angeles City) this 20th day of March, 1970. Respectfully submitted, EDGARDO L. PARAS REDUCED DURATION PERIOD OF THE BASES AGREEMENT In the original 1947 document, the duration for the Bases Agreement was set for a period of 99 years. However, by virtue of the Ramos-Rusk Exchange of Notes of September 16,1966, the term has been decreased to a period of twenty-five (25) years, counted from Sept. 16, 1966. Article XXLX of the Agreement, as amended, read: "Term of Agreement — Unless terminated earlier by mutual agreement of the two governments, this agreement and agreed revisions thereof shall remain in force for a period of 25 years from Sept. 16, 1966, after which, unless extended for a longer period by mutual agreement, it shall become subject to termination upon one year's notice to either government." The foregoing was agreed upon in Washington, D.C., U.S.A. between Narciso Ramos, Philippine Secretary of Foreign Affairs, and Dean Rusk, U.S Secretary of State. Be it noted that while in the Agreement as amended, the period is stated to be 25 years, actually the same is for at least

'See Bake o. Uoren. L-20108, Dec. 28, 1964.

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twenty six (26), years, because the termination will be upon one year's notice. AMENDMENTS TO THE BASES AGREEMENT In view of the numerous irritants between the Philippine and the United States Governments in connection with the implementation of the Bases Agreement, a new agreement was signed at Malacanang on January 7, 1979. In his "Foreign Policy Report" during the opening of the Batasang Pambansa (National Assembly) on January 15, 1979, then President Ferdinand E. Marcos summarized the substance of the new amendments. He said the two governments agreed that: "1. First, the bases which are of the subject of the agreement are Philippine Military Bases over which Philippine Sovereignty extends, and that only the Philippine flag shall be flown singly at the bases; 2. Second, that each base shall be under the command of a Philippine base commander; 3. Third, that the United States shall have the use of certain facilities and areas within the bases, and shall be assured unhampered military operations involving its forces in the Philippines; 4. Fourth, that the base areas shall be reduced from their erstwhile dimensions, portions of the base areas will be developed by the Philippine government for non-military purposes; 5. Fifth, that the Philippine government will provide for perimeter security over the bases; and 6. Sixth, that every fifth year from the date of signing of the amendment, there shall be a thorough and complete review and reassessment of the government to ensure that it continues to serve the mutual interest of both parties. In connection with the first and second amendments, turnover ceremonies were held on February 16, 1979 both at Clark Air Base (Pampanga) and Subic Naval Base (Zambales), the latter being the biggest naval facility outside America. At the grandstand erected in front of the Clark gates, Marcos said: "If today we raise the Filipino flag and return to the Filipino the fullest of his pride and dignity, today, too, we

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redeem the pledge of the American people to the Filipino race and recognize the sovereignty of the Philippines over this territory." U.S. Ambassador Richard Murphy (who had signed the agreement in behalf of the U.S. Government) and General David C. Jones, Chairman of the joint chiefs of staff, U.S. Department of Defense, were also present. * 44

THE REJECTED TREATY OF FRIENDSHIP, COOPERATION , AND SECURITY (This is the text of the agreement signed by the Philippine and U.S. governments concerning the continued operation of American military bases in the country but was later on rejected by the Philippine Senate. PREAMBLE The Government of the Republic of the Philippines and the Government of the United States of America; REITERATING their firm commitment to the aims and principles of the Charter of the United Nations and their steadfast desire to live in peace with all peoples and all nations; SHARING a deep and abiding concern for the maintenance of international peace and security; RECOGNIZING their mutual interest in advancing the social and economic development of their respective countries and creating a stable basiB for peace in the region; DESIRING to recast their historic ties of friendship in the light of present and emerging realities in the domestic, regional and global situation, and in the context of full recognition of and respect for each other's independence, sovereignty and territorial integrity; and RECOGNIZING that this agreement, which constitutes a treaty under international law, shall provide a framework for their continuing relationship and cooperation: Agree as follows: •See Bulletin Today, Feb. 17, 1979. p. 1

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Article 1 Areas of Cooperation Seizing the historic opportunity to strengthen relations between their countries in ways that will advance peace and economic development, the two Governments shall maintain and develop cooperation between their countries on matters of common concern or interest. This cooperation shall be maintained and developed on the basis of sovereign equality and shall encompass economic, scientific, technological, cultural, educational, health, defense and security matters upon which they may mutually agree. Article II Economic Cooperation Give the importance of economic relations between the two countries, the two Governments shall advance cooperation designed to promote sustainable growth and development in accordance with markets forces and to facilitate the expansion of economic opportunities. This cooperation shall include a6 objectives the expansion of trade, the enhancement of investment opportunities, including as appropriate the concept of build, operate and transfer, the improved flow of economic assistance, the improvement of cooperative and management procedures related to external assistance, and other measures which facilitate economic growth and development. In this context, the two Governments take note of the positive contribution of coordinated international efforts, and in particular the Multilateral Assistance Initiative, toward the achievement of these objectives. Article III Scientific and Technological Cooperation Recognizing that the advancement of science and technology is important to the social and economic development of both countries, the two Governments shall seek to further develop and carry out programs of scientific and technological cooperation for peaceful purposes. Toward this end, the two Governments shall undertake to negotiate and conclude an agreement on scientific and technological cooperation. As provided by such framework agreement, they shall provide opportunities to exchange experts, ideas, information, skills and techniques, and to collaborate on problems of mutual interest, including intellectual property rights protection.

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Article TV Cultural and Educational Cooperation 1. Desiring to strenghlen the friendship and understanding between their peoples and to enhance the familiarity of their peoples with the history, institutions, and cultural achievements of the other country, the two Governments shall seek to maintain, improve and further develop their cooperation in the cultural and educational fields. 2. To this end, the two Governments shall promote a wide exchange of knowledge, professional talents and contacts in various disciplines and fields of culture and learning, in accordance with Supplementary Agreement Number One: Agreement on Cultural and Educational Cooperation. Article V Health Cooperation The two Governments also take note of the major contributions to the welfare of both their peoples as a result of cooperative programs and exchanges in the areas of health sciences and provision of health care. Accordingly, within the framework of scientific and technological cooperation, the two Governments shall give particular attention to the possibilities for enhanced cooperation and exchange activities in these areas. The two Governments shall also continue to develop and support, within the context of assistance programs, appropriate programs and initiatives to improve the provisions of health care and to advance health sciences' knowledge and expertise. Article VI Veterans Issues Cooperation 1. In recognition of the contribution of Philippine nationals who fought under the American flag during the Second World War, there is hereby established a Philippine-American Joint Committee on Veterans Affairs as a means of continuing consultation between the two Governments on any matter relating to Filipino veterans of World War II which either side wishes to bring before the Committee. The Philippine-American Joint Committee on Veterans Affair shall be responsible for making appropriate recommendations on matters before it to the Executive Branch of the Government of the United States.

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2. The Philippine-American Joint Committee on Veterans Affairs shall be composed of an equal number of representatives of the Government of the Philippines and the Government of the United States. The Committee shall meet annually, or otherwise as mutually agreed at the request of either Government. Article VII Defense Cooperation and Use of Philippine Installations 1. Recognizing that cooperation in the areaB of defense and security serves their mutual interest and contributes to the maintenance of peace, and reaffirming their existing defense relationship, the two Governments shall pursue their common concerns in defense and security. 2. The two Governments recognize the need to readjust their defense and security relationship to respond to existing realities in the national, regional and global environments. To this end, the Government of the Republic of the Philippines allows the Government of the United States to use installations in Subic Naval Base for a specified period, under specific conditions set forth in Supplementary Agreement Number Two: Agreement on Installations and Military Operating Procedures and Supplementary Agreement Number Three: Agreement on the Status of Forces. 3. Both Governments shall also cooperate in the maintenance, upgrading, and modernization of the defense and security capabilities of the armed forces of both countries, particularly those of the Republic of the Philippines. In accordance with the common desire of the Parties to improve their defense relationship thru balanced, mutual contributions to their common defense, the Government of the United States shall, subject to its constitutional procedures and to United States Congressional action, provide security assistance to the Government of the Philippines to assist in the modernization and enhancement of the capabilities of the Armed Forces of the Philippines and to support appropriate economic programs. Article VIII Administration of the Areas of Cooperation Each Government shall designate an executive agency which shall be responsible for the overall coordination of its participation in the areas of cooperation; for the Government of the RepubUc of the Philippines, this agency will be the Department of Foreign

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Affairs, and for the Government of the United States, this agency will be the Department of State. These executive agencies will work together closely with the appropriate national agencies in carrying out the various programs of cooperation. Article IX Program Review Group The Government of the Republic of the Philippines and the Government of the United StateB of America will form a high-level Philippine-American Program Review Group to review and discuss matters of concern to either party with respect to security assistance and economic assistance provided by the United States to the Philippines, including Public Law 480 assistance, or to the provision of excess defense articles and excess medical equipment. Such matters may include the structuring of such assistance, within the relevant legal and programmatic framework, in order to complement Philippine Government objectives with respect to economic growth and development and armed forces modernization and its efforts to undertake voluntary, market-oriented debt reduction programs. Further, such matters may also include economic, trade, and other issues, it being understood that other fora exist for the discussion and resolution of certain specific economic and trade issues. The Program Review Group may establish such rules and procedures as it deems appropriate and will meet on an annual basis, as mutually agreed. Article X Other Arrangements Nothing in this Treaty shall be construed to prejudice existing arrangements between the two countries for economic, scientific, technological, cultural, educational, health, Filipino veterans' issues, and defense and security cooperation. Specific provisions for the continued effectivity of certain arrangements are made in Articles V and V I I of Supplementary Agreement Number One, Article XI of Supplementary Agreement Number Two, and Article XVII of Supplementary Agreement Number Three. Article XI Entry Into Force and Duration 1. This Agreement shall be ratified by the Government of the Philippines and otherwise accepted by the Government of the

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United States in accordance with their respective constitutional processes and shall enter into force on the date on which the instruments of ratification or acceptance have been exchanged by them in Manila. This agreement shall remain in force for ten (10) years. 2. The Supplementary Agreements shall enter into force, remain in force and be terminable in accordance with their respective terms. IN W I T N E S S WHEREOF the undersigned, being duly authorized by their respective Governments, have signed this Treaty. DONE in Manila, this twenty-seventh day of August, 1991, in duplicate, in the English language. The Parties shall subsequently exchange diplomatic notes establishing the text in the Filipino language. The Filipino and English texts shall be equally authenticated. Raul Manglapus For the Government of the

Republic of the Philippines

Frank Wisner II For the Government of the United States of America MUTUAL DEFENSE TREATY On March 14, 1947, the Republic of the Philippines and the United States entered into the Military Bases Agreement, wherein the former granted to the U.S. the 'right to retain the use, free of rent, of 23 military bases within its territory' for their 'mutual protection' and the 'maintenance of peace in the Pacific' The treaty was to be in force for a period of 99 years, subject to extension thereafter as agreed [upon] by the two governments. (1 D.F.A. Treaty Series 144; 43 UN Treaty Series, 271). On March 21, 1947, the Military Assistance Agreement was signed. The principal considerations taken in concluding the said agreement were to promote the mutual interest in common defense of the two countries and the eventual grant by the U.S. of defense equipment, supplies, services, and training to Philippine defense forces in response to the Philippine request for military assistance. On Aug. 30, 1951, the Mutual Defense Treaty ( M D T ) was signed to strengthen the Philippines' and the United States' ef-

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forts for collective defense against external armed attack, pending the development of a more comprehensive system of regional security in the Pacific area. Recall that the Philippine Senate rejected on Sept. 21, 1991, the proposed RP-US Treaty of Friendship, Cooperation, and Security — as a replacement of the 1947 RP-US Military Bases Agreement. What are the legal bases for this rejection? At least three (3) provisions of the Philippine Constitution of 1987 provide the answer: First, Art. I I , Sec. 8 emphasizes for the Philippines an independent foreign policy, national sovereignty, territorial integrity, national interest, and the right of self-determination. Second, Art. I I , Sec. 7 provides that the Philippines may pursue a policy of freedom from nuclear weapons in its territory. (Please note that a military base maintained by a superpower without weapons is practically useless.) Third, Art. VIII, Sec. 25 states that after 1991, the establishment of foreign military bases, troops or facilities on Philippine territories will be allowed only under a treaty duly concurred in by the same Senate and a ratification by the people in a referendum should Congress require it. Under the MDT, what is the extent of commitment in case of external aggression against the Philippines? Answer: The retaliation is not automatic. Accordingly, the U.S. is to "act to meet the common dangers in accordance with its constitutional processes," and which "can be interpreted to mean any military action that might involve the U.S. Congress, the body that can declare war." To be more specific, however, the question runs this way: In case of an attack on a claimed Philippine territory in the South China Sea, like the disputed Spratly Islands, will the U.S. come to the defense of the Philippines? According to Philippine Foreign Affairs Secretary Roberto Romulo, "the U.S. will come to the aid of the Philippines if its soldiers or ships in the Spratly islands in the South China Sea come under attack." (Manila Bulletin, "U.S. to Defend R.P. — Romulo," Nov. 17, 1992, p. 1). Testifying before the Foreign AITairs Committee of the Commission on Appointments, Sec. Romulo based his view on a 1979 memorandum of then U.S. Secretary of State

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Cyrus Vance. ThuB, in the Jan. 6, 1979 letter of Vance to then Philippine Foreign Affairs Secretary Carlos P. Romulo (father of the incumbent foreign affairs secretary), stated inter alia was Vance's reaffirmation of the U.S. government's obligation under Article IV of the MDT. The proviso reads: "Each party recognizes that an armed attack in the Pacific Area on either of the parties would be dangerouB to its own peace and safety and declares that it would act to meet the common danger in accordance with its own constitutional processes." ( I I Phil. T.S., p. 729). Under Art. V of the MDT, an "armed attack" is denned as "an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific." In his letter of 1979, Sec. Vance elaborated on the meaning of "metropolitan territory" as all of the land areas and all adjacent waters subject to the sovereignty of the Republic of the Philippines, lying within the area delineated by Spain and the U.S. in the 1898 Treaty of Paris and in the 1898 Treaty of Washington which was amended in the U.S.-U.K. Treaty of 1930. Significantly, this definition delimits the scope of responsibility of the U.S. in case of an armed attack on Philippine territory. Apropos to the "constitutional processes" adverted to it in the MDT, Sec. Vance's letter stressed that "it serves to make clear that the Treaty could not, and was not intended to, alter those processes for either party. Neither is the War Powers Resolution, that expanded the U.S. President's powers to assist other countries at war, intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties." For one, the U.S. Constitution requires that the Senate approves any declaration of war. In light of the Philippine claim to Spratlys, it is incumbent for the two government's "to arrive at a joint declaration presenting in unmistakable terms their definitions of mutual defense." (See Manila Bulletin, 'Editorial' re "U.S.-R.P. Mutual Defense Treaty Requires Clarification," Nov. 17, 1992, p. 10). Be this at it may, the turnover rites of the Subic Naval Base, the last of the military bases to be pulled out of Philippine shores, produced remarks that dramatized the new R.P.-U.S. relationship: From Subic Bay Metropolitan Authority head Richard J. Gordon: "[MJovfing] from [a] military base to a regime of free port.

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[the Philippine has] a vision in Subic. [There is] the legal infrastructure: Republic Act 7227, which provides for a free port, tax incentives, [and] export processing zone." From then U.S. Ambassador to the Philippine Richard M. Solomon: "Since 1951, the U.S.-R.P. Mutual Defense Treaty ( M D T ) has contributed to stability in [the Asia Pacific) region. The MDT remains in force, and it continues to provide an appropriate framework for future defense cooperation between our countries, as the Mutual Defense Board meeting reaffirmed [in November 1992]. The joint statement issued at the end of that meeting foresees sustaining various forms of cooperation between the armed forces of the Philippines and the U.S." From Philippine President Fidel V. Ramos: "Our two countries must now fashion a new framework for their relationship in keeping with the geopolitical realities prevailing in their common areas of concern and interest. As one contemplates the picture of Philippine-American affairs, two massive and compelling facts instantly obtrude in one's mind: first, the U.S. market remains our biggest and most profitable. And second, the U.S. remains the undisputed leader of the free world, at a time when the Philippines' export trade uninterruptedly enjoyed a whopping trade surplus with the U.S., which registered at $1.2 billion in 1992. Upon the other hand, it should be pointed out that the Mutual Defense Treaty, which lies at the core of the security arrangements between the Philippines and the U.S., cries for a new, bracing breath of life. Framed and adopted at the height of the Cold War, when American and Free World strategy was based on the idea of surrounding the Soviet empire with bases of military and economic strength, the Mutual Defense Treaty has now to be reexamined in the context of the post-Cold War era. Its concept, its thrust, and its scope have to be attuned to the realities of a world tormented by new conflicts and rivalries and faced with new trials and challenges." THE MUTUAL DEFENSE BOARD The Mutual Defense Board is an agency that has been created because of the Philippine-United States Mutual Defense Treaty. It is, thus, an agency of B O T H the Philippine and United States Governments. Its findings would be CONCLUSIVE in our courts of justice. (Donald Boer, Commander of the U.S. Naval Base,

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Subic Bay v. Hon. Tito V. Tizon and Edgardo Gener, L-24294, July IS, 1974). In an opening speech made at the 35th meeting of the R.P.U.S. Mutual Defense Board, the firBt since the departure of the Americans from Subic and Clark, a new note for the future was struck by a statement made by Admiral Charles Larson, commander-in-chief of the U.S. Pacific Forces: "We are on the threshhold of a new era here... that is going to be characterized by economic opportunity more than military concerns." While both sides stressed the need to forge a new security alliance in light of the contemporary situation in the Pacific, their motivation was once directed towards enhancing world trade and protecting the investments of the United States in this part of the world. Hence, while the game-plan calls for a comprehensive system of regional security in the Pacific area, the objective is really economic, since "the well-being and security of our people will be closely tied to the progress of our economies." Without being naive or simplistic, we must stress the reality that the Philippines at present is not so much in danger from an external enemy but from its internal divisions and its failure thus far to provide a modicum of comfort and well-being for its numerous citizens by failure to enhance the quality of life. Priority, therefore, should be on security not built on arms but on economic prosperity; the consequence of this is that in budgetary allocation, infrastructure and rural development are more important than military build-up, even the modernization of our armed forces. Inevitably, the latter has to take second priority to economic modernization. For any talk of external security will be useless as long as the internal security of the country in the long run is not stabilized by guns and military material but by contended and prosperous human beings who see the futility of war and the threat it poses to their economic wellbeing. In this task of security build-up both internal and external, Filipinos value the long-standing friendly relations between the two countries. Although the bases have been phased out, R.P.-U.S. Mutual Defense Board meetings will continue on this new arrangement. In the same way that in the past, the United States of America has always been a friend to the Philippines especially in times of need, she will continue to cooperate with the Philippines on the basis of a continuing partnership among equals. (See Manila Bulletin, "Editorial: Butter, Not Guns — RP-USA Mutual Defense Board Talks Stress Economic Opportunity More than Military Concerns," June 5, 1993, p. 10).

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Indeed, the Philippine-American Mutual Defense Board (MDB) led ofT on the right foot for the most part at its first post-bases meeting here in Manila on June 3, 1993. The announced new objective is to help preserve democracy and protect the booming economies of Asia. Fully endorsed, this iB the aim so as to strengthen democracy all over the world. But we suggest that the new security scheme be geared to promote global economy, instead of just Asiatic, particularly of the less developed nations. None* theless, there was an unfortunate detail in the wire-service account of the first MDB session. The story says the alliance, among others, would protect "an estimated $310 billion in U.S. trade and $62 billion in U.S. investments in the region. We are inclined to believe the U.S. panel had not publicly espoused that particular objective although it is taken for granted that any panel has the primary duty to promote its own national interest. From what we know of America's post-Cold-War policy, Washington now seeks a level playing field for all countries. Competition is the game in a desirable free market of the world. We submit that this same global vision should guide the MDB in its future deliberations. (Philippine Star, "Editorial: Promote Global Economy," June 5, 1993, p. 8). Be it remembered that the R.P-U.S. relations plummeted after the rejection by the Philippine Senate of the proposed R.P-U.S. Treaty of Friendship, Cooperation, and Security in 1991. According to President Fidel V. Ramos, "We continue to have a mutual defense treaty of 1951, the R.P-U.S.. defense board continues, and the military exercises between the two countries are being planned; the council of ministers under the Mutual Defense Treaty continues to operate." (See Ely Amoroso, "FVR Wants to Re-Define FilAmerican Relations," Philippine Times Journal, May 28, 1993, p. 1). In the post-Cold War era, Ramos said, it is no longer military build-ups or MILITARY ALLIANCES that are important but economic cooperation. Said he: "It is for this reason that there is momentum for economic cooperative understanding in all ASEAN and Pacific regional countries." But this is not to say that military alliance have diminished in importance. History tells us of the importance of an "alliance" as a practice of statecraft. An alliance represents a primitive form of community in which States band together for a limited period to jointly pursue objectives they feel they cannot successfully obtain acting alone.

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The term "alliance'' iB invariably interchanged with the words "coalition," "pact," and "bloc." Coalitions mainly have diplomatic and economic characteristics. Alliances, however, have military characteristics, i.e., signifying a promise of mutual military assistance between two or more sovereign States especially on national security issues. One country, for instance, may give the other permission to deploy forces on its territory. Thus, when a country promises military assistance without receiving a similar promise in return, it is customary to speak of a guarantee pact. Here, the guarantor may enter into such a pact when an enemy takeover of another, usually a weak country, would strike a blow at the guarantor's security. Owing to the fact that the decision to participate in an alliance is made by sovereign and independent nations, two (2) closelyrelated questions about the motives of decision makers as they contemplate alliance policies are in the offing: (1) Why do nations choose to undertake or shun alliance commitments?; and (2) When faced with alternatives, why do nations elect to join a particular coalition in preference to others? The answer to these questions date back to the so-called "balance of power" or "equilibrium" theories, in which the emphasis is almost exclusively on the international system. The motives for alignment and for the particular coalition of States derive largely from the structure, distribution of power, and the State of relations among nations in the international system. Alliances, therefore, are formed as a matter of expediency. Nations join forces in order to aggregate sufficient capabilities to achieve certain foreign policy goals or to create a geographically advantageous position. One of the most important motives for alliance formation is to prevent any nation or combination of countries from achieving a dominant position. Accordingly, perceived imbalances in the distribution of international power will give rise to alliance formation. Be it noted that external threat, rather than national strength or weakeness, is the primary source of alliances. For example. Quadruple Alliance — Great Britain, Austria, Prussia and Russia — which defeated Napoleon in 1814-1815, ending French hegemony over Europe and the World War II alliance led by the U.S., the Soviet Union, and Great Britain which defeated German and Japanese attempts to establish domination over Europe and Asia, respectively. Balance of power approaches thus locate the motivations for alliance formation primarily in the attributes of the international system and the situation — the distribution of power, threats

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to the balance of power, and the like. Conversely, they tend to deny that alliance policies are significantly affected by national characteristics; democratic arid autocratic nations use alliances as instruments of statecraft, as do large and small ones, rich and poor ones. Alliance partners, moreover, are said to be chosen on the basis of common need, not for reasons of shared values, institutions, or a sense of community. Thus, aside from those provided by the coalition of the Napoleonic War and World War I I , the Nazi-Soviet Pact of 1939 is often cited to illustrate the point that the well-spring of any given alliance is the calculus of interest rather than sentiments of community. Of course, nations often avoide alliances by resorting to "neutralism" or being "neutral" or "non-aligned," although not necessarily with respect to contemporary "cold war" conflicts. Following the Berlin crisis in 1946, the Cold War between the U.S., representing the capitalist camp, and the then Soviet Union (now a loose Commonwealth of Independent States [CIS], representing the socialist camp, affected every country in the world. It is said that present-day reality makes the CIS doubly dangerous with each Soviet republic in possession of nuclear armaments. Soviet moves in Eastern Europe, Iran, and Turkey; Soviet assistance to the communist partisans in the Greek civil war; the 1948 communist coup in Czechoslovakia; the fall of China into communist hands in 1949; and the North Korean invasion of South Korea in June 1950, all served to convince the West that there was a communist monolith headquartered in Moscow. The West, primarily the U.S., energetically responded to these developments. U.S. economic aid was poured into Greece and Turkey and thru the Marshall Plan, into Western Europe to rebuild said States as bulwarks against communism. Later, the U.S. took the lead in creating a collection of military alliances designed to "contain" Soviet expansionist tendencies; the North Atlantic Treaty Organization ( N A T O ) , the then Southeast Asia Treaty Organizaton ( S E A T O ) , the Central Treaty Organization (CENTRO). Bilateral defensive pacts between the U.S. and numerous other noncommunist States were also signed during the 1950s. Upon the other hand, Soviet Union and Eastern Europe made their communist bloc thru the now-defunct Warsaw Pact in order to respond to the non-communist bloc. Communist superpowers, Soviet Union and China, and communist States also signed bilateral defensive pacts in order to respond to the non-communist States. At any rate, political stability is sometimes associated with

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a prosperity to join an alliance, and instability has been an impetus to go beyond non-alignment and pursue a policy of militant neutralism. Alliances have been variously praised and condemned for their effects on the community of nations and on the world. While an important goal of balance of power systems is to prevent the rise of a dominant nation or group of nations, it iB (unfortunate that the United States of America has emerged as the only superpower in its quest for a "new world order." (E.C. Paras, Jr., "Military Alliances," Business Star, Feb. 21, 1992, p. 4). ^ /

PERSONAL JURISDICTION Personal jurisdiction is the jurisdiction of a State over its nationals in a foreign country. In the broader sense of the term, it includes jurisdiction over the resident citizens. The term "nationals" is almost synonymous to the term "alien" but from a different viewpoint. Thus, Filipino "nationals" in China are considered "aliens" there; upon the other hand, Chinese "nationals" in the Philippines are invariably referred to as "aliens" in our country. Hence, a discussion of jurisdiction over "nationals" necessarily includes a discussion of jurisdiction over "aliens." We shall divide our discussion of "aliens" into three phases: (a) (b) (c) pines.

their status BEFORE they came to the Philippines; their status W H I L E HERE in the Philippines; their exit (voluntary or by force) from the Philip-

STATUS BEFORE ENTRY INTO THE PHILIPPINES Theoretically, every sovereign nation such as the Philippines has the right, in the absence of any treaty, to exclude any foreigner from entry into our country. But just as "no man is an island, sufficient unto himself," so also is no State a solitary archipelago that can afford to exist by itself bereft of the social intercourse and commercial amenities that are given by an "opendoor policy." Hence, Philippine laws allow the entry of aliens, subject to certain unavoidable restrictions. Generally, aliens who cannot become naturalized Filipino citizens are refused entry." The Secretary of Foreign Affairs is not authorized to admit into the

" S e e Commonwealth Act No. 613. Sec. 29 (a).

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Philippines aliens, or to extend the period authorized by the Commissioner of Immigration and Deportation, for their stay in the Philippines. This is because under Sec. 3 of Com. Act No. 613, which governs the entry of aliens into this country, it is the Commissioner of Immigration and Deportation who is in charge of all laws relating to the immigration of aliens — and it is only when public interest so warrants that the President of the Philippines may admit as non-immigrants, aliens, not otherwise provided for by said Act, who desire to come for a temporary stay, and under such limitations and conditions which he may deem proper to prescribe. 46

STATUS OF THE ALIEN WHILE IN THE PHILIPPINES While in the Philippines, an alien is entitled to certain civil rights, such as protection of their life, liberty, and property (People v. Chan Fook, 42 Phil. 230), and free access to the courts (Chinese Flour Importers Association v. Price Stabilization Board, 89 Phil. 439), but not political rights. Hence, he cannot vote in elections; he cannot run for public office; he cannot even intervene in the conduct of elections, otherwise he may be held criminally liable therefor. He is excluded from the practice of certain professions: thus, without special permission from the Supreme Court, he may not practice law in the country, he cannot practice medicine," nor engage in coastwise shipping. 47

49

Under a 1967 law, no person shall be allowed to practice any profession in the Philippines unless he has complied with the existing laws and regulations, is a permanent resident therein for at least three years, and if he is an alien, the country of which he is a subject or citizen permits Filipinos to practice their respective professions within its territories. This Act shall not apply, however, to a profession which is limited by law to Filipino citizens. The Act also provides that Filipinos who became United States nationals by reason of service in the Armed Forces of the United StateB during the Second World War, and aliens who had been admitted into the practice of their profession before July 4, 1946 shall be exempt from the restrictions provided for in the law.

"Ang Liong u. Com. of Immigration, L-12231, Dec. 29, 1959. " S e e Rule 138, Sec. 2, RUUB of Court.

"Sec. 767, Reu. Adm Coda. "Sec. 1172, Rev. Adm. Code.

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The alien owes a measure of allegiance to the Philippines and our Constitution, in return for the protection granted him by our laws; this allegiance, while he stays in the country, is referred to as a temporary or qualified allegiance. Under Art. 114 of the Revised Penal Code, he may even be liable for treason against the Philippines. Generally, he ought to be able to exhibit his certificate of registration. If he fails to do so, however, the fiscal (now called a "prosecutor," under the Administrative Code) cannot initiate his prosecution. In the caBe. of Yao Lit v. Geraldez, et al., L-13428, Nov. 27, 1959, the Supreme Court had occasion to rule that under Sec. 3 of Rep. Act No. 751, amending Sec. 7 of Rep. Act No. 562, the prosecuting fiscal may not initiate the prosecution of an alien who fails to exhibit his certificate of registration when demanded by any immigration official or member of the then Philippine Constabulary, or police or other peace officer [collectively known today as the Philippine National Police] U N T I L A N D U N L E S S the Commissioner of Immigration and Deportation has elected or decided upon said prosecution instead of resorting to an administrative charge and fine. M

A domiciled alien, as distinguished from a transient alien, may be held accountable for taxes; may be asked to serve in the militia forces (i.e., a part of the organized armed forces of a country liable to call only in an emergency); may lease but not acquire lands except thru hereditary succession. 51

An alien is entitled to the so-called "rrationaLtreatment" (equal rights given to nationals and aliens in certain matters); but if the "national treatment" iB below the "international standard of justice" (in some countries, even nationals are not given due process of law), he is entitled to receive the latter. The "international standard of justice" is that which reasonable men in civilized States would ordinarily accord an individual to the end that he will not be deprived of life, liberty, or property without due process of law." Indeed it has been said that "the treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to willful neglect or duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily

*°See Fen wick, International Lnw, p. 271. "Kriuenko v. Register of Deed*. 44 O.G. 471. S e e Brierly, 7"Ae Law of Nations, p. 207. M

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63

recognize its insufficiency." Be it observed, however, that an alien who illegally stayB in the Philippines, has no right to be granted asylum. And this is true even if he is Stateless. (Mejoff v. Director of Prisons, 90 Phil 70). Upon the other hand, however, an alien may question the constitutionality of a law or even of a court order if the same is prejudicial to him. (Dee C. Chuan v. CIR, 85 Phil. 431). Palting v. San Jose Petroleum, Inc. L-14441, Dec 17, 1966 FACTS: A Panamanian Corporation, alleged to be owned and controlled by American citizen's, sought permission to help. Finance a Philippine Mining Corporation. American control was not proved. Issue: May the Corporation help in the exploitation of our natural resources? HELD: No. Firstly, no proof was presented that the Panamanian Corporation was really American owned and controlled. Secondly, assuming that indeed, it was American owned and controlled, still it is necessary to establish that the different states (in the U.S.) of which the stockholders are citizens, allow Filipino citizens or corporations or associations owned or controlled by Filipino citizens, to engage in the exploitation, etc. of the natural resources of those states. In other words, to avail of "parity rights," there must be RECIPROCAL P A R I T Y . Philippine Banking; Corporation, representing the Estate of Justina Santos y Canon Faustino v. Lui She, administratrix of the Intestate Estate of W o n g Hong L-17587, Sept. 12, 1967 FACTS: Justina Santos, an aged Filipino woman leased to Wong, a Chinese citizen, a parcel of land on Rizal Avenue, Manila for a period of fifty (50) years, and also provided the latter an option to purchase the same (within said period of 50 years), payable in 10 years, on the condition that Wong would become a Filipino. Justina died. Wong also died without becoming a Filipino. Justine's administrator, the Philippine

"Opinion of the Commissioner in the Neers Case, American-MeKican Claim CommisBiDn, p. 73.

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Banking Corporation, now sues Wong's estate and the surviving spouse (administratrix of her husband's estate) for the recovery of the land. It was alleged that no recovery should be allowed — firstly, because the contract was validly entered into, and secondly, assuming the nullity of the same, Justina's administrator should not be allowed to recover on the theory that Justina herself was a party to the transaction. ISSUES: (a)

Is the contract valid? Reasons.

(b) May justina's administrator recover the land? Reasons. HELD: (a) While generally the contract should have been valid, still there appears to be a deliberate plan to circumvent the Constitution. The lease of land for 50 years in favor of an alien is rather long (virtually depriving the lessorowner of jits utendi,jus possedendi, jus abutendi for 50 years); the option to buy within the same period of 50 yeare likewise deprives the lessor-owner of jus disponendi for a like period. Since all together these rights constitute the very essence of ownership, the contract practically made the lessee the OWNER, contrary to the intent of the Constitution. Parenthetically, the statement in the Smith Bell case, that a lease of land for 99 years in favor of an alien was a mere obiter dictum, premised on the provision in the Civil Code that a lease for 99 years is valid. It is obiter because in said Smith Ben case, the lease contract was only for 25 years, renewable for another period of 25 years. Thus, the Court did not then squarely determine the effect of a long lease of land in favor of an alien. (b) Justina's administrator will be allowed to recover the land, notwithstanding the fact that Justina was herself a party to the illegal transaction. The pari-delicto (mutual guilt) rule to the effect that a party to an illegal transaction cannot get back what had previously been given, should in the present case be relaxed or modified because of the following reasons: 1) firstly, Justina, the guilty party is already dead, and it is doubtful as to whether her heirs or the administrator of the estate can also be put under a cloud of guilt;

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2) secondly, under Art. 1417 of the Civil Code, the pari delicto rule cannot apply, if the law is for the protection of the person seeking recovery and if, by allowing recovery, public policy will be enhanced; and 3) thirdly, because if recovery will not be allowed, the alien will continue having the property (in view of the government's failure in very many cases to file the necessary escheat proceedings so that the land concerned can become government property). This continued ownership by a disqualified alien can only result in a continuing violation of the Constitution. A n t o n i o J. V i l l e g a s v. C l a u d i o T e e h a n k e e L-27928, Jan. 18, 1967 FACTS: Because of a decision (Civil Case No. 57417, of the Manila CFI — "Philippine Packing Corporation v. Hon. Teofilo Reyes, et al") rendered by Judge Jarencio of the Manila Court of First Instance, Mayor Villegas of Manila decided to deny permits for American citizens and Americanowned (wholly owned) corporations to engage in retail trade. Whereupon, a presidential directive (Directive issued by Jose J. Leido, Jr., as Assistant Executive Secretary, by authority of the President), dated Dec. 31, 1966, was issued to the effect thai until, the issues raised by the Jarencio decision shall have been resolved by the Supreme Court, "all departments, offices, and instrumentalities under the Executive Department, both national and local," shall act in conformity with the opinion, held by the Department of Justice, that American citizens and juridical entities wholly owned by them are exempt from the operation of Republic Act No. 1180, commonly known as the Nationalization (or Filipinization) of the Retail Trade Act. This opinion of the Department of Justice was principally based on Art. V I I , paragraph (1) of the LaurelLangley Agreement (the Philippine Trade Agreement of 1955) (the entering into this Agreement was authorized under R.A. No. 1355), which apparently exempts said American citizens and entities from the prohibition under the Retail Trade Act (Rep. Act No. 1130). Said Article V I I of the Trade Agreement provides: "The Republic of the Philippines and the United States of America each agrees not to discriminate in any

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manner, with respect to their engaging in business activities, against the citizens or any form of business enterprise owned or controlled by citizens of the other, and that new limitations imposed by either Party upon the extent to which aliens are accorded national treatment. (National treatment is the treatment given to the nationals themselves of a country; hence when aliens are accorded national treatment, they, in effect, are treated in the same way as the country's own nationals are treated.). This is with respect to carrying on business activities within its territories and which shall not be applied as against enterprises owned or controlled by citizens of the other Party engaged in such activities therein at the time such new limitations are adopted, nor shall such new limitations be applied to American citizens or corporations or associations owned or controlled by American citizens whose States do not impose like limitations on citizens or corporations or associations owned or controlled by the citizens of the Republic of the Philippines. Mayor Villegas then filed an original suit (Antonio J. Villegas v. Claudio Teehankee, L-27928, Jan. 18, 1967) in the Supreme Court, questioning the validity of the Presidential directive. RULING: The Court refused to rule on the question as to whether or not American citizens and corporations are allowed to engage in retail trade in the Philippines. (The refusal was proper because to do so would amount to a declaratory judgment, which is admittedly beyond the original exclusive jurisdiction of the Court, and would in effect foreclose a similar adjudication of said issue in about twenty cases then pending in courts of first instance Inow regional trial courts]. Moreover, Mayor Villegas failed to show, even prima facie, that the view of the Department of Justice as an alter ego of the Executive Branch of the Government, is contrary to law, much less nullhnd void.) However, on the issue as to whether or not Mayor Villegas has to comply in the meantime with the directive, the Court categorically answered in the affirmative, stating that Republic Act Nos. 1180 (the Retail Trade L a w ) and 1355 (the Law authorizing the President to enter into the Laurel-Langley Agreement) and said Trade Agreement itself "involve national policies, the en-

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force-merit of which is one of the main duties imposed by the Constitution upon the President, whose decisions, views, or opinions thereon — unless and until voided or modified by final judgment of a competent court in appropriate cases — should prevail over those of local executive officials, such as the petitioner herein, as Mayor of the City of Manila, and are binding upon the latter." THE FOREIGN INVESTOR AND THE PETROCHEM CASE A recent controversial case decided by the Philippine Supreme Court is Rep. Garcia v. BOl, DTI, Luzon Petrochemical Corp., & Pilipinas Shell Corp. (G.R. No. 92024, Nov. 9, 1990; M.R. denied, Dec. 11, 1990). The debates center on whatever or not the Highest Tribunal was justified in disregarding the alleged express desire of the Taiwanese investors to establish the Luzon Petrochemical Plant in Batangae and not in Bataan. Associate Justice Hugo E. Gutierez, Jr., speaking for the Supreme Court, en banc, held: "We rule that the Court has a constitutional duty duty to step into this controversy and determine the paramount issue. We grant the petition. "First, Bataan was the original choice as the plant site of the BOI to which the BPC agreed. That is why it organized itself into a corporation bearing the name Bataan. The respondents have not shown nor reiterated that the alleged peace and order situation in Bataan or unstable labor situation warrant a transfer of the plant site to Batangas. Certainly, these were taken into account when the firm named itself Bataan Petrochemical Corporation. Moreover, the evidence proves the contrary. "Second, the BRC, a government-owned Filipino corporation located in Bataan, produces 60% of the national output of naphtha which can be used as feedstock for the plant in Bataan. Upon the other hand, the country is short of L P G and there is need to import the same for use of the plant in Batangas. The local production thereof by Shell can hardly supply the needs of the consumers for cooking purposes. Scarce dollars will be diverted, unnecessarily, from vitally essential projects in order to feed the furnaces of the transferred petrochemical plant. "Third, naphtha as feedstock has been exempted by law from the ad valorem tax by the approval of Republic Act No. 6767 by

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President Corazon C. Aquino but excluding LPG from exemption from ad valorem tax. The law was enacted specifically for the petrochemical industry. Neither BOI nor a foreign investor should disregard or contravene expressed policy by shifting the feedstock from naphtha to LPG. "Fourth, under Sec. 10, Art. X I I of the 1987 Philippine Constitution, it is the duty of the State to regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. The development of a self-reliant and independent national economy effectively controlled by Filipinos is mandated in Sec. 19, Art. II of the Constitution. In Art. 2 of the Omnibus Investments Code of 1987, 'the sound development of the national economy in consonance with the principles and objectives of economic nationalism,' is the set goal of government. "Fifth, with the admitted fact that the investor is raising the greater portion of the capital for the project from local sources by way of a loan which led to the so-called 'petroscam scandal,' the capital requirements would be greatly minimized if L P G does not have to buy the land for the project and its feedstock shall be limited to naphtha which is certainly more economical, more readily available than LPG, and does not have to be imported. "Sixth, if the plant site is maintained in Bataan, the PNOC shall be a partner in the venture to the great benefit and advantage of the government which shall have a participation in the management of the project instead of a firm which is a huge multinational corporation. "In light of all the clear advantages manifest in the plant's remaining in Bataan, practically nothing is shown to justify the transfer to Bataan except a near-absolute discretion given by BOI to investors not only to freely choose the site but to transfer it from their own first choice for reasons which remain murky to say the least. "In this particular BPC venture, not only has the Government given unprecedented favors, among them: (1) for an initial authorized capital of only P20 million, the Central Bank gave an eligible relending credit or relending facility worth U.S.$50 million and a debt to swap arrangement for U.S.$30 million or a total accommodation of U.S.$80 million which at current exchange rates iB around P2080 million; (2) tax ex-

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emptions and privileges were given as part of its 'preferred pioneer status'; (3) loan applications of other Philippine firms will be crowded out of the Asian Development Bank portfolio because of the petrochemical firm's massive loan request; and (4) a major part of the company's capitalization shall not come from foreign sources but from loans, initially a P I billion syndicated loan, to be given by both government banks and a consortium of Philippine .private banks or in common parlance, a case of guiniguisa sa sariling manteca. (fried in our own lard) — but thru its regulatory agency, the BOI, it surrenders even the power to make a company abide by its initial choice, a choice free from any suspicion of unscrupulous machination and a choice which is undoubtedly in the best interests of the Filipino people." NOTE: Just a word or two about item no. 4 above. Obviously, many so-called "investors" do not really bring in money; the money they earn are brought out of the host country in the guise of "transfer pricing." To borrow the lucid words of Rep. Enrique T. Garcia: "To maximize foreign investments, there should be a provision (of the law stating) that the funding of the total requirement of the business, and not only of the equity, should be covered primarily and mainly by the foreign exchange brought in by the foreign investor. Unregulated foreign investments have merely exploited cheap Filipino labor, feasted on Filipino natural resources, used and abused domestic credit, extracted super-profits to the 'homeland' thru various ways, including transfer pricing. Surely, this is almost outright plunder. In the net exchange, the Philippines and the Filipinos are the losers." Transfer pricing is a phenomenon peculiar to multinational corporations, i.e., the means by which the latter transcend the restrictions of political boundaries in order to maximize profit not in terms of per country transactions, but of total global operation. It is effected when MNCs buy from and sell to their own subsidiaries at prices that may have little connection with the market. These prices are called "transfer prices" and the practice of setting prices on intra-company transfer to maximize profits, transfer pricing. By analogy, it can be said truly that a foreign corporation "doing business" in our country has no property assets (in the Philippines), probably, not even a bank account.

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DOCTRINE OF STATE IMPUTABtLTTY A State may be held liable for a denial of justice to an alien if the following requisites are present: (1)

an act or omission in violation of international law;

(2) said act or omission must be imputable to the State itself as a consequence of the direct acts of its responsible officials; (3) there must be a direct or indirect injury to the offended State; and (4) the alien must first have exhausted all the remedies available in the State, whether said remedies be administrative or judicial. A State may be held responsible for: (a) Acts of State — such as acts by the Chief Executive and by the national legislature and even by the judicial organs." 54

(b) Acts of high officials, within the scope of their authority — for here the official is concerned with acts as an organ of the State. 66

(c) Unauthorized acts of government officials if there was subsequent ratification thereof." (d) Even unauthorized acts of subordinates if said men were at the time of commission under the supervision of superiors, and the government fails to redress the wrong done. 58

Buron v. Denman Great Britain, Court of Exchequer 1848, 2 Exchequer Div. 167 FACTS: A British naval commander without previous government authority seized some slaves and certain goods belonging to foreigners. Later, the act of seizure was ratified **Fenwick, International Law, p. 280. "Keleen, Principles of International Law, p. 119. *See Brierly, The Law of Nations, p. 112. "Buron v. Denman, Great Britain, Court of Exchequer. 1846, 2 Exchequer Div. 167. "Thomas Y. Youmans Case. Annual Digest, 1926-26, No. 162.

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by the Secretaries of State or the Lords of the Admiralty. Is the commander personally liable? HELD: No, he iB not responsible in view of the ratification, which makes his individual act "an Act of State" by authority of the crown. A subsequent ratification of an act done as agent is equal to a prior authority. Thomas Y. Youmans Case Annual Digest 1925-26, Case No. 162 FACTS: Because of a dispute over wages, a Mexican mob waged an attack against three Americans in Michoacan, Mexico. Unable to end the riot himself, the town mayor ordered a lieutenant of the State forces to quell the mob. Instead of dispersing the mob, the troops attacked the Americans, who were then killed by both the soldiers and the mob. Mexico did not take steps to apprehend and punish the guilty persons involved. Is the Mexican government responsible for the wrongful acts of the soldiers? HELD: Yes, the Mexican government is liable even if the soldiers acted in disobedience of rules laid down by the superior authority, because they were then under the immediate presence and supervision of a commanding superior. Even if a State organ acts outside its competence, the State itself may sometimes be held responsible. This is one of those instances. Moreover, Mexico did not take proper Bteps to go after the criminals. L a u r a M. B. James Case General Claims Commission, 1926 Case No. 158 FACTS: Eight years after an American citizen had been killed in Mexico, the Mexican government had not yet apprehended the killer, on account of its inefficient and dilatory authorities. Is Mexico liable? HELD: Yes, Mexico iB liable for damages, not because it condoned the criminal act by executive inaction, but because the State failed in its international duty to punish the culprit resulting in the instant "denial of justice."

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EXIT OF THE ALIENS FROM THE COUNTRY The right to admit aliens carries with it the right to expel or deport them. Sec. 37 (a) of Commonwealth Act No. 613 enumerates the aliens subject to arrest and deportation. Thus an overstaying alien may be ordered arrested. The arrest will, of course, be regarded as constitutional. (Morano v. Vivo, 20 SCRA 562). Generally aliens are considered undesirable if they pose a menace to the peace and order of the community: deportation, however, must fulfill the requisites of "due process of law" otherwise their home-States as well as international commissions may consider the expulsion of the aliens as unwarranted.'' As long as due process is observed, there is no violation of the bill of rights. (Chuoco v. Forbes, 228 U.S. 549, affirming.16 Phil. 534). Deportation as an Act of State must comply with the recognized principles of public international law. (On re McCullock Dick, 38 Phil. 41). 9

If the alien has already been criminally convicted, there is no necessity of any administrative hearing; in case there has been no criminal proceedings instituted, due process requires a hearing by the administrative authorities. This task is usually assigned to the Deportation Board (a body created to assist the President in deportation matters). If before the Deportation Board, the alien claims to be a Filipino, and therefore, not subject to deportation, the Board may, nevertheless, proceed with the case, if the proof presented in support of Philippine citizenship is flimsy. Be it noted that if the alleged alien fails to established Philippine citizenship, he may, on proper grounds be excluded or deported from the country. (Commissioner of Immigration v. Garcia, L-28082, 57 SCRA 603) (1974); if upon the other hand, the prima facie proof on such citizenship is clear, the Deportation Board must suspend the hearing, and await the judicial determination of nationality, otherwise, a writ of habeas corpus or a writ of prohibition may be issued against the Board. 60

Seng Pao v. Commissioner of Immigration L-14246, April 27, 1960 FACTS: An alien was ordered deported. However, pending diplomatic negotiations with his country of origin, he

S9

S e e Fenwick, International Law. p. 269. *°CAua Wong v. Deportation Board. L-6038, March 19. 1955.

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was detained by Philippine authorities. The detention has already lasted Tor eight years. May said alien now be released in a petition for the writ of habeas corpus? HELD: No. Our government and our officers are not to be blamed for the delay. Since we a r e not at fault (in view of the refusal of his own home government to receive him), t h e delay should not be considered as proper ground for declaring the deportation as a functus officio (an order that has already fulfilled the purpose of its creation and which, therefore, should be considered no longer effective). Indeed, it should not be left to the foreign country to render ineffective our warrants of deportation simply by refusing or rejecting the diplomatic efforts of our government to have the deporteeB sent back to their country of origin.

QUERY A Japanese woman came to the Philippines and was admitted as a transient. It was found a few days later that her passport was forged. Deportation proceeding were then started against her. Ten days later, she married a Filipino. Could she still be subject to deportation? Why? ANSWER: Yes, the Japanese woman could still be the subject of deportation proceedings, because mere marriage to the Filipino did not automatically or necessarily make her a Filipino. It is essential that she must possess all the qualifications and none of the disqualifications for naturalization. It is clear that entry into the Philippines on a forged passport disqualifies her for naturalization. Having entered the Philippines as an alien transient, it was incumbent for her to prove that she is not one of those disqualified from being naturalized as a citizen under Sec. 4 of the Revised Naturalization Law. Inasmuch therefore, as she is still a Japanese, Bhe can be deported. 61

82

N O T E : In the Philippines, the right to deport or expel aliens is vested in the President of the Philippines.

6 1

Sec Sec. 15, Com. Act No. 473. *"Ly Giok Ha, el al. v. Galang. L-10760, May 17, 1957; Gua v. Republic, L-1947, May 22, 1957.

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Reconduction or Relocation Reconduction or relocation is similar to deportation; it is the process of conveying, by force if necessary, undesirable aliens to the boundaries of a State. This is usually practised in Continental Europe if the aliens concerned are not possessed of the proper papers or if they have become destitute. The home-State to which the aliens have been reconducted or relocated are duty-bound to accept them. 63

JURISDICTION OF A STATE OVER ITS NATIONALS ABROAD The jurisdiction of a State over its nationals in other countries is part of the "personal jurisdiction" of a State: this is premised on the fact that these nationals despite their stay abroad owe allegiance to their home-State. This allegiance entitles them to PROTECTION by the home-State. It would be unfair to impose upon the home-State this responsibility for protection unless the home-State is given A U T H O R I T Y over them. - " Thus, Filipinos abroad are still subject to our tax laws, and insofar as their personal status, capacity, and legal condition are concerned, they are still governed by Philippine laws." 6

1

With reference to income earned abroad by nationals, a State may impose lawful tax. To avoid the so-called "double taxation" of an individual or corporation, the Philippines as well as their governments like the United States have concluded numerous agreements. Double taxation means taxing twice for the same purpose in the same year some of the property in the territory in which the tax is laid without taxing all of it. Double taxation likewise refers to the taxing of the item or piece of property twice to the same person, or taxing it as the property of another. But this doe6 not include the imposition of different taxes concurrently on the same property, nor the taxation of the same piece of property to different persons when they hold different interests in it or when it represents different values to their lands, as when the mortgagor and

s

S e e Oppenheim-Lauterpacht, International Law, Vol. 1, p. 634. "•See Moore, A Digest of International Law, Vol I I , p. 255. " A r t . 15. Civil Code.

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mortgagee of property are taxed in respect to their interests in it, or when a tax is laid upon the capital or property of a corporation and also upon the value of its shares of stock in the hands of the separate stockholders. (See Edgardo C. Paras, Jr., Economics for Lawyers [1993], pp. 578-579; See also Artemio V. Panganiban, "Legal Problems in International Trade Spawned by the A F T A . " Paper read during the XVTth World Law Conference in Manila, Oct. 27, 1993). QUERY May the Secretary of Foreign Affairs order the cancellation of a passport where its holder is facing a criminal charge to compel his return to the country without prior hearing? ANSWER: Yes, the Secretary of Foreign Affairs may order without prior hearing the cancellation of a passport where its holder is facing a criminal charge to compel his return to the country. In the case of Suntay y Aguinaldo v. People of the Philippines,* the Supreme Court held that the Secretary of Foreign Affairs, in the exercise of his discretion to revoke a passport already issued, cannot be held to have acted whimsically or capriciously in withdrawing and cancelling such passport. Due process does not necessarily mean or require a hearing. When discretion is exercised by an officer vested with it upon an undisputed fact (such as the filing of a serious criminal charge against the passport holder), hearing may be dispensed with by such officer as a prerequisite to the cancellation of his passport. It should be noted that hearing would have been proper and necessary if the reason for the withdrawal or cancellation had not been clear but doubtful. On the matter of whether the right to travel or to stay abroad is "personal liberty" within the meaning and protection of the Constitution, of which a person cannot be deprived without due process, the Court said that there is Sec. 25, Exec. Order No. 1, series of 1946 prescribing rules and regulations for the grant and issuance of passports, slating that "The Secretary of Foreign Affairs as well as any diplomatic or consular officer duly authorized by him, is authorized in his dicretion to refuse to issue a passport, to restrict a passport for use only in certain countries, to withdraw or cancel a 5

66

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* L-9430, June 29, 1967. 4 2 O.G. 1400. M

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passport for the purpose of restricting its validity or use in certain countries." Blackmer v. The United States 284 U.S. 421 FACTS: An American staying in Paris was served in France with a subpoena requiring him to appear in a U.S. Court as a witness in a certain litigation. The American did not heed the subpoena. Issue: May he be adjudged guilty of contempt of Court? HELD: Yes, for U.S. processes properly served may bind U.S. citizens abroad. They may be required to return to the U.S. and failure to do so may result in punishment. DIPLOMATIC PROTECTION OF NATIONALS AND THE BARCELONA TRACTION CASE The case concerning The Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, decided by the International Court of Justice (1970), I.C.J. 3, discussed, inter alia, the theory of diplomatic protection. Diplomatic protection deals with a very sensitive area of international relations, since the interest of a foreign State in the protection of its nationals confronts the rights of the territorial sovereign, a fact of which the general law on the subject has had to take cognizance of in order to prevent abuses and friction. From its origins closely linked with international commerce, diplomatic protection has sustained a particular impact from the growth of international economic relations. The claim is presented on behalf of natural and juristic persons, alleged to be Belgian nationals and shareholders in the Barcelona Traction, Light and Power Company, Limited. The submissions of the Belgian Government make it clear that the object of its Application is reparation for damage allegedly caused to these persons by the conduct, said to be contrary to international law, of various organs of the Spanish State toward that company and various other companies in the same group. The States principally concerned are Belgium, the national State of the alleged shareholders, Spain, the State whose organs are alleged to have committed the unlawful acts complain of, and Canada, the State

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under whose laws Barcelona Traction was incorporated and on whose territory it has its registered office. When a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them. In seeking to determine the law applicable, the Court has to bear in mind the continuous evolution of international law. In allocating corporate entities to States for purposes of diplomatic protection, international law is based, but only to a limited extent, on an analogy with the rules governing the nationality of individuals. The traditional rule attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and on whose territory it has its registered office. Only then, it has been held, does there exist between the corporation and the State in question a genuine connection of the kind familiar from other branches of international law. However, in the particular field of the diplomatic protection of corporate entities, no absolute test of the "genuine connection" has found general acceptance. Such tests as have been applied are of a relative nature and sometimes links with one State have had to be weighed against those with another. In the present case, the company was incorporated in Canada and has its registered office in that country. The incorporation of the company under the law of Canada was an act of free choice. Not only did the founders of the company seek its incorporation under Canadian law but it has remained under that law for a period of over 50 years. It has maintained in Canada its registered office, its accounts and its share registers. Board meetings were held there for many years; it has been listed in the records of the Canadian tax authorities. Thus, a close and permanent connection has been established, fortified by the passage of over a half a century. The Court considers that the adoption of the theory of diplomatic protection of shareholders as such, by opening the door to competing diplomatic claims, could create an atmosphere of confusion and insecurity in international economic relations. The danger would be all the greater inasmuch as the shares of a company whose activity is international are widely scattered and frequently change hands. It is quite true that international law recognizes parallel rights of protection in the case of a person in the service of an international organization. Nor is the possibility excluded of concurrent claims

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being made on behalf of pereons having dual nationality, although in that caee lack of a genuine link with one of the two States may be set up against the exercise by that State of the right of protection. It must be observed, however, that in these two types of situations the number of possible protectors is necessarily very small, and their identity normally not difficult to determine. It should also be observed the promoters of a company whose operations will be international must take into account the fact that States have, with regard to their nationals, a discretionary power to grant diplomatic protection or to refuse it. It is clear that Barcelona Traction was never reduced to a position of impotence such that it could not have approached its national State, Canada, to ask for its diplomatic protection, and that, as far as appeared to the Court, there was nothing to prevent Canada from continuing to grant its diplomatic protection to Barcelona Traction if it had considered that it should do so. For the above reasons, the Court is NOT of the opinion that, in the particular circumstances of the present case, jus standi, is conferred on the Belgian Government by consideration of equity. Accordingly, the Court rejects the Belgian government's claim by 15 votes to one, 12 votes of the majority being based on the reasons set out in the present judgment.

THE NATIONALS OF A STATE The nationals of a State are those who owe allegiance to and are entitled to the protection of, a given State. Whether they are by domestic law referred to as citizens or as subjects is of no importance in International Law. Technically, of course, the difference between nationality and citizenship is this: while nationality deals with membership in an ethnic or racial community, citizenship is membership in a political community. It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States insofar as it is consistent with international conventions, international customs, and the principles of law generally recognized with regard to nationality. Since each State determines who are its own nationals, "any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State." * 67

68

6

^See Wilaon, Handbook of International Law, p. 130. "Oppenheim-Lauterpacht, op. eit., Sec. 293. " A r t s . 1 and 2, Hague Convention of 1930 on Conflict of Nationality Laws.

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STATELESSNESS A person may become Stateless thru any of the following means: (1) He may have been deprived of his citizenship for any cause, such as the commission of a crime; (2) He may have renounced his nationality, by certain acts, express or implied; (NOTE: Sec. 1, par. 2, of Com. Act No. 63, as amended by Rep. Act No. 103, requires "express renunciation"). (3) He may have voluntarily asked for a release from his original status; or (4) He may have been born in a country which recognizes only the principle of jus sanguinis (citizenship by blood) of parents, whose law recognizes only the principle of jus soli (citizenship by birth in a certain place). (NOTE: He is, thus, neither a citizen of the country, where he was born, nor a citizen of the country of his parents.) Writers who insist that only States, not individuals, are the subjects of Public International Law, say that individuals who are Stateless have no rights in international law. 70

DUAL AND MULTIPLE CITIZENSHIP Does dual or multiple citizenship exist? Let us distinguish: (a) From the viewpoint of the countries directly involved, dual or multiple citizenship doeB N O T exist; (b) From the viewpoint of Third States, however, it does exist. Example: If a child is bom in the U.S. of Filipino parents, under Philippine law the child will be only a Filipino (not an American) for we recognize the doctrine of jus sanguinis; under the U.S. law, the child will be only an American (not a Filipino) for the U.S. recognizes jus soli. Thus, dual citizenship does not really exiBt, insofar as the Philippines and the U.S. are concerned. However, in

'"See Oppenheim-LauterpMht, op. eit., Sec 191.

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the contemplation of a Third State, say, Japan, the child will be both a Filipino and an American, presenting a clear case of dual citizenship. Strictly speaking, therefore, the problem of dual or multiple citizenship or nationality can hardly arise because citizenship or nationality is a matter to be exclusively determined by a country's own law. Thus, the determination by our tribunals of a person's particular foreign citizenship cannot be regarded as binding by other courts. From the viewpoint of Third States (as already adverted to), dual or multiple citizenship may arise thru the following ways: (1)

Thru marriage;

(2) Thru the naturalized citizen's failure to comply with certain legal requirements in the country of origin; 71

Example: A Chinese who has all the qualifications may become a Filipino by naturalization, though China may still regard him as a Chinese for his failure to get permission from the Chinese Ministry of the Interior to renounce Chinese citizenship. (3) guinis;

From a combined application of jus soli and jus san-

Example: While a married Filipino couple was in the United States, a child was born to the wife. The child is an American citizen under American law, by virtue of the principle of jus soli. At the same time, under Philippine law, he is a Filipino citizen because of jus sanguinis. (4)

By the legislative Act of State;

Example: A Filipino citizen may by the legislative act of a foreign State be considered by such State as also its citizen. The reasons for the award may vary. (5)

By the voluntary act of the individual concerned.

Example: A citizen of State X may become a naturalized citizen of State Y, but at the same time, he may have received permission from State X to remain a citizen of State X. 12

"Supra. "See WolfT, Private International Law, p.

128.

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DUAL ALLEGIANCE OF CITIZENS y

A z n a r v Comelec and Emilio Osmena G.R. N o . 83820, M a y 25, 1990 Justice E.L. Paras: The statement in the 1987 Philippine Constitution that "dual allegiance of citizens is inimical to the national interest and shall be dealt with by law" (Art. IV, Sec. 5) has no retroactive effect. And while it is true that even before the 1987 Constitution, our country had already frowned upon the concept of dual citizenship or allegiance, the fact is it actually existed. Be it noted further that under the aforecited proviso, the effect of such dual citizenship or allegiance shall be dealt with by a future law. Said law has not yet been enacted.

/ FILIPINO CITIZENS UNDER THE 1987 CONSTITUTION ( I K Those who are citizens of the Philippines at the time of the adoption of this Constitution. (2H Those whose fathers or mothers are citizens of the Philippines. OY- Those bom before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and (4V~ Those who are naturalized in accordance with law.'

3

CHILDREN OF FILIPINO FATHERS OR MOTHERS (1987 CONSTITUTION) (ah This paragraph enunciates the principle of JUS SANGUINIS. ( b H The rule applies whether the father or mother is a Filipino or not; and whether the child is bom in the Philippines or outside.

7:l

Sec. 1, Art. IV. 1967 Constitution.

INTERNATIONAL LAW A N D WORLD POLITICS

(c) The rule certainly ie applicable if the father or mother ie a natural-born Filipino citizen; does it also apply if the father or mother is a naturalized Filipino? To answer this question, let us first examine the pertinent provisions of the Naturalization Law on the matter. Sec. 15 of the law says: 1. Minor children of persons naturalized under this law who have been born in the Philippines shall be considered citizens thereof. 2. A foreign-born minor child, if dwelling in the Philippines al the time of the naturalization of the parent, shall automatically become a Philippine citizen, and a foreign-born minor child who is not in the Philippines at the time the parent is naturalized, shall be deemed a Philippine citizen only during his minority, unless he resides permanently in the Philippines when still a minor, in which case he will continue to be a Philippine citizen even after becoming of age. 3. A child born outside the Philippines, after the naturalization of his parents shall be considered a Philippine citizen, unless within one year after reaching the age of majority, he fails to register himself as a Philippine citizen at the Philippine consulate of the country where he resides and to take the necessary oath of allegiance. Tli.' question may now be properly answered in the following manner: (a)

a minor child born BEFORE naturalization 1)

if born in the Philippines — is a Filipino

2)

if bom outside the Philippines

a) if dwelling in the Philippines at the time of parent's naturalization — is a Filipino; b) dwelling outside the Philippines at the time of parent's naturalization — is a Filipino only during his minority unless he resides permanently in the Philippines when still a minor, in which case he will continue to be a Philippine citizen even after becoming of age. (b) a minor child born A F T E R naturalisation

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if born in the Philippines — is a Filipino

2) if bom outside the Philippines — shall be considered a Philippine citizen, unless within one year after reaching the age of majority he fails to register himself as a Philippine citizen at the Philippine consulate of the country where he resides and to take the necessary oath of allegiance. It will be observed that: (a) in the case of children already of age at the time of the parent's naturalization, they do not become Filipino citizens unless they themselves be naturalized; (b) in the case of minors, who were bom IN the Philippines before or after the parent's naturalization, and in the case of a minor, born OUTSIDE the Philippines but already dwelling IN the Philippines at the time of the parent's naturalization — no condition is imposed by the law: they are F I L I P I N O CITIZENS; (c) in the case of minors bom OUTSIDE the Philippines, the law is more strict on the child bom BEFORE naturalization because he is compelled to reside here, whereas in the case of the child born A F T E R naturalization, all that the law requires is registration. Both of these requisites appear to be unconstitutional, since the fundamental law makes no distinction; nonetheless it would seem that these requirements are proper, and unless complied with could result in loss of Philippine citizenship, a loss which under the Constitution itsel f can properly be provided for by law. (Art. TV, Sec. 2, 1987 Const.). CHILDREN BORN BEFORE JAN. 17,1973 OF FILIPINO MOTHERS (1987 CONSTITUTION) (a) Provision — "Those born before Jan. 17, 1973 of Filipino mothers who elect Philippine citizenship upon reaching the age of majority.'' [Art. TV, Sec. 3, 1987 Const.] (b) Requisites: 1) The father here must not be a Filipino citizen, otherwise, another provision (already discussed) applies; 2)

The mother must be a Filipino citizen;

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3) Upon reaching the age of majority, the child, to be a Filipino, must elect Philippine citizenship. [NOTE — The requirement as to the "electing" is for legitimate children. Illegitimate children follow the Filipino mother's nationality, and, therefore, do not have to elect Philippine citizenship. (See Chin Seng v. Galang, L-11931, Oct. 27, 1958).] (c) Query: As of what moment must the mother be a citizen of the Philippines? Theories: 1) The first theory is that the mother must be a citizen of the Philippines at the time of the birth of the child. 2) The second theory is that the mother must be a Filipino citizen at the time the child elects Philippine citizenship. 3) The third theory is that it is sufficient for the mother to have been a Filipino citizen at the time of her marriage to a foreigner. The Correct Theory: It would seem that the third theory — that the mother is a Filipino at the time of her marriage to an alien — is the CORRECT theory. (See Matter of Robert Cu, L-3018, July 18, 1951. for two [ 2 | cogent reasons: 1) If the first or the second theory is to be applied very few children can avail themselves of the option, for in many instances, the mother would follow the husband's nationality and, thus, lose Philippine citizenship; 2) Also, unless we apply the third theory, the right to elect Philippine citizenship will depend in many cases on the husband's national law — a law which may vary from time to time, even to the extent of denationalizing its own citizen.) (See Hudson, Cases on International Law, p. 201). (NOTE: In the case of Villahermosa v. Commissioner of Immigration, L1663, March 31, 1948, however, the Supreme Court seemed to imply that the second should be adhered to. In said case the Court made the observation that the child can elect Philippine citizenship only if at the time of such election, the mother has already reacquired Philippine citizenship.)

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(d) Query: Within what period after attaining the age of majority must the child elect Philippine citizenship? Answer: The option must be exercised within a REASONABLE period after having attained the age of majority. (Opinion of the Secretary of Justice. Aug. 12, 1945, June 26, 1947). What is reasonable is a question of fact, depending upon the peculiar circumstances of each case. In one instance, three years was still considered a reasonable period. (Opinion of the Secretary of Justice, No. 20, s. 1948). But generally five years would be unreasonable. (Lim Teco v. Commissioner of Customs, 24 Phil. 84). So also would the period of over seven years after attaining majority age. (Dy Cueco v. Secretary of Justice, L-18069, May 26, 1962). (e) Query: Before the child elects Philippine nationality, what is his nationality? Answer: Generally, this would be the nationality of the father, if the child is a legitimate child. But.of course this would depend on the father's national law. (0 Query: Suppose a Filipino mother is not married to a Chinese but is merely cohabiting with him, is the child still a Filipino? Answer: Yes, a child bom outside a lawful marriage of an alien father and a Filipino mother, being illegitimate, follows the mother's citizenship. (NOTE — this doctrine although followed in many cases had no legislative sanction under the 1987 Constitution: it was merely a clear example of lawmaking by the Supreme Court — see Pitallano v. Republic, L-5111, June 28, 1954). However, if the parents should marry each other later, the legitimated child should generally follow the father's citizenship. iKok Hua v. Republic, L-5047, May 8, 1952; Zamboanga Transportation Co. v. Lim, L-10975, May 27, 1959). ( g ) Law on the Option to Elect Philippine Citizenship. COMMONWEALTH ACT NO. 625 AN ACT PROVIDING THE M A N N E R IN WHICH THE OPTION TO ELECT P H I L I P P I N E CITIZENSHIP SHALL BE DECLARED BY A PERSON WHOSE MOTHER IS A F I L I P I N O CITIZEN Section I. The option to elect Philippine citizenship in accordance with Subsection 4 (now 3), Sec. 1, Art. IV of the 1935

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rNTERNATIONAL LAW AND WORLD POLITICS

(now 1967) Constitution shall be expressed in a statement to be signed and sworn by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest Civil Registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and Government of the Philippines. Sec. 2. If the party concerned is absent from the Philippines, he may make the statement herein authorized before any officer of the Government of the United States (now before embassy and consular officials of the Philippines abroad save in those cases were there are no officials yet, in which case the party concerned has to do so before the embassy or consular officials of the United States in the country where he may be), and shall forward such statement together with his oath of allegiance, before the Civil Registry of Manila. Sec. 3. The Civil Registrar shall collect a filing fee for the statement in the amount of ten pesos. Sec. 4. The penalty of prision correctional, or a fine not exceeding ten thousand pesos or both shall be imposed on anyone found guilty of fraud or falsehood in making the statement herein prescribed. Sec. 5. This act shall take effect upon its approval. Approved, June 7, 1941. (h) Query: If a Filipino woman marries a foreigner, she gets her husband's nationality or citizenship, if the laws of her husband's country so provide. In such a case, she loses Philippine citizenship. Now then, upon the husband's death, does she immediately reacquire Philippine citizenship? Answer: It depends: 1) If she became a widow before the effectivity of Com. Act No. 63 (Oct. 21, 1936), she immediately reacquired Philippine citizenship without any need of repatriating herself, since it would be unfair to require repatriation (reacquisition of citizenship by a formal act) before there existed any Act requiring her to do so. There is one exception, however, and this would be if she, by outward or external acts, decided to continue being a citizen of her husband's country. (Talaroc v. Uy, L5397, Sept. 26, 1952). 2) If she became a widow on or after Oct. 21, 1936, i.e., before Com. Act No. 63*s effectivity, she has to repatri-

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ate herself, otherwise, she remains a foreigner. (Talaroc v. Uy, supra; Villakermosa v. Commissioner of Immigration, L-1663, March 31, 1948). However, the 1973 Constitutional provision has repealed this statutory rule and the 1987 Constitution made it applicable not just to female citizens. (See Joaquin G. Bernas, S.J., The 1987 Phil. Const: A Reviewer-Primer, 1992 ed., p. 175). NOTE: If the woman repatriates herself, does her repatriation carry with it the repatriation of her minor child? Answer: No, for repatriation means reacquisition. Since the child never was a Filipino previously, it is obvious that he cannot reacquire that which he never had. (See Villahermosa v. Com. of Immigration, L-1663, March 31, 1948). It should be observed, however, that if instead of repatriation (for repatriation, there must be a FORMAL A C T ) the widow had automatically regained Philippine citizenship, the nationality of her minor child would follow hers. (Talaroc v. Uy, L-5397, Sept. 26, 1952; Republic v. Hon. Judge Tandayag, G.R. No. 32999 Oct. 15, 1982). Laureto Talaroc v. Alejandro D. Uy L-5397, Sept. 26, 1952 FACTS: Uy was elected municipal mayor. Talaroc, a defeated candidate for said office, brought quo warranto proceedings against Uy, alleging the latter's citizenship, and consequent disability. Uy was born in Lanao in 1912 of a Chinese father and a Filipino mother. While Uy was still a minor, his father died in 1917. The mother died in 1949, without expressly repatriating herself. Uy had voted in previous Philippine elections, and on some occasions he had even been allowed to hold public offices. HELD: When Ursula Diabo, Uy's mother became a widow, Com. Act No. 63 had not yet been enacted; therefore, without need of repatriation, he automatically followed the nationality of the mother. Hence, Uy became a Filipino. Uy is, therefore, eligible. QUERY (a) A was born in the Philippines of a Chinese father and a Filipino mother at the time of her marriage. As A iB still a minor, what can he later do to become a Filipino citizen?

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(b) Are children bom of a Filipino father and a Filipino mother (whether theee are native-bom or are simply naturalized Filipino citizens) Filipino citizens? What about those bom of Filipino fathers but outside the Philippines and of mothers who are not Filipino citizens? ANSWERS: (a) A may elect Philippine citizenship upon reaching the age of majority or within a reasonable lime thereafter. The election shall be effected by signing a sworn statement declaring such election, taking the oath of allegiance to the Constitution and the laws of the Philippines, and filing said oath and affidavit with the nearest Civil Registry. (b) The constitutional provision does not distinguish between persons whose fathers are Filipinos by birth and those whose fathers are such by naturalization. It follows consequently that so long as the father is a Filipino citizen, the child is a Filipino, even if the mother is an alien, and even if the child is bom outside the Philippines. Of course, a child already of major age at the time of the naturalization of the father as a Filipino is not a Filipino unless he himself is naturalized. The Naturalization Law, moreover, says: 71

1. A foreign-bom minor child, if dwelling in the Philippines al the time of the naturalization of the parent, shall automatically become a Philippine citizen, and a foreign-bom minor child who is not in the Philippines at the time the parent is naturalized, shall be deemed a Philippine citizen only during his minority, unless he resides permanently in the Philippines when still a minor in which case he will continue to be a Philippine citizen even after becoming of age. 2. A child born outside the Philippines after the naturalization of his parent shall be considered a Philippine citizen, unless within one year after reaching the age of majority, he fails to register himself as a Philippine citizen at the Philippine consulate of the country where he resides and to take the necessary oath of allegiance. 55

u

Cu v. Rep., L-7685, Sepl. 23, 1955; Opinion o n h c Sec. or Justice. No 284, Series of 1948. '^Sec. 15. Naturalization Law, Com. Act No. 473, as amended by Rep. Act No. 530.

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DISCUSSION OF WHO ARE THE FILIPINO CITIZENS UNDER THE NEW CONSTITUTION (1) First Group —Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution. Explanation This group includes, inter alia, even those who elected Philippine citizenship by virtue of the 1935 Constitution, and those who had become naturalized Filipinos by January 17, noon, 1973 and February 2, 1987, respectively. (2) Second Group — Those whose fathers or mothers are citizens of the Philippines. Explanation Re "Fathers" This will have the same explanation as that for this group under the 1987 Constitution. Explanation Re "Mothers" Be it noted that under the 1987 Constitution, as long as the mother i6 a Filipino, there is no need for the child to elect Philippine citizenship. BUT of course, this rule applies only to children born after January 17, noon, 1973. If the child had been born of the Filipino mother, say, in 1994, the child would still have to elect Philippine citizenship within a reasonable time after reaching majority (this would be in 2015) (See Art. TV Sec. l,No. 3. 1987 Constitution). If upon the other hand, the child had been born of a Filipino mother, say in 1979, by 2000, or within a reasonable time thereafter the child must have already elected Philippine citizenship, and would therefore now be a Filipino under the first group in Art. rV, Sec. 1 of the 1987 Constitution. Explanation — See the discussion on "those born of Filipino mothers, etc." under the 1987 Constitution. Let it be remembered further that this "election" shall not apply to those born of Filipino mothers after the effectivity of the 1987 Constitution. (3) Third Group — Those who are N A T U R A L I Z E D in accordance with law. Willie Yu v. Miriam Defensor-Santiago G.R. N o . 83882, Jan. 24, 1989 By declaring himself as a Portuguese citizen in commer-

INTERNATIONAL L A W A N D WORLD POLITICS

rial documents, in addition to securing a Portuguese passport, petitioner has clearly renounced his Philippine citizenship. While normally the question of whether or not a person has renounced his Philippine citizenship should be heard before a trial court of law in adversary proceedings, this has become unnecessary as this Court, no less, upon insistence of petitioner, had to look into the facts and satisfy itself on whether or not petitioner's claim to continued Philippine citizenship is meritorious. Frivaldo v. Comelec 174 S C R A 245 Claiming his naturalization as an American citizen as involuntary (stating that it was the only way he could stay in the U.S. and thereby protect himself from Marcos), he avers that the filing of his certificate of candidacy in the Philippine elections is an act of renouncing his U.S. citizenship and concomitantly his reacquiring of Philippine citizenship. His claim that he is a Filipino is absurd. Similarly situated Filipinos stayed on in the U.S. but never found it necessary to abandon Philippine citizenship nor pledged allegiance to the U.S. His participation in the Philippine elections would have rendered him Stateless, at best. If he really wanted to require Philippine citizenship, he could have easily done so via the process of repatriation. But the truth is, he never did. Jose B. A z n a r v. Comelec and Emilio M a r i o Renner Osmena G.R. N o . 83820, May 25, 1990 J. Edgardo L. Paras: In the case of Osmena, the Certication that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is NO express renunciation here of Philippine citizenship, truth to tell, there iB even NO implied renunciation of said citizenship. When we consider that the renunciation needed to lose

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Philippine citizenship must be "express," it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied. ' 1

QUERY Under our existing laws, can a Filipino citizen renounce bis citizenship in time of war? Reasons. ANSWER: If the Philippines is involved in the war, a Filipino citizen cannot renounce his citizenship because the "the government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law" to render personal military or civil service. This constitutional provision is applicable both in peacetime and during war; but it is more immediately and peremptorily brought into play when the Philippines is involved in war. If a citizen were free to cast off his loyalty during war, he can very well exempt himself from the consequences of treasonable acts. It follows without saying that if the Philippines is not involved in war, renunciation of Philippine citizenship may properly be made. 78

77

CITIZENSHIP OF A FILIPINO WOMAN WHO MARRIES AN ALIEN Under Commonwealth Act No. 63 (Sec. 1(7]), as amended by R.A. Nos. 106, 2639, and 3834, a Filipino woman loses her Philippine citizenship "upon her marriage to a foreigner if, by virtue of the laws in force in her husband's country, she acquires his nationality." This statutory rule has been repealed by the 1973 Constitution, while the 1987 Constitution made it applicable not just to female citizens. Thus, under the 1987 Constitution "citizens of the Philippines who marry aliens shall R E T A I N their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it." (Art. TV, Sec. 4, 1987 Constitution).

"Sac 4, Art. U, 1987 Constitution. n

Sm PmaaU v. Manayoo, 78 Phil. 721.

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&T1ZENSHIP OF AN ALIEN WOMAN WHO MARRIES A FILIPINO Under Sec. 15 of the Naturalization Law, an alien woman who marries a Filipino citizen becomes a Filipino provided that she herself may be lawfully naturalized. In the Burca Case (below), the Supreme Court, thru Mr. Justice Conrado Sanchez, held that the proper proceeding by means of which such a wife can be declared a Filipino is a petition for naturalization (or for citizenship). In Re Petition to Declare Zita N g o B u r c a to Possess All the Qualifications and None of the Disqualifications for Naturalization L-24252, Jan. 30, 1967 FACTS: This was a petition to declare Zita Ngo Burca, a Chinese citizen and wife of Francisco Burca, a Filipino citizen, as possessing "all the qualifications and none of the disqualifications'' for naturalization under Commonwealth Act No. 473 — the Naturalization Law — for the purpose of cancelling her alien registry with the Bureau of Immigration and Deportation. In other words, she wanted to be declared a Filipino citizen. Notice of hearing was sent to the Solicitor-General, and duly published. The Solicitor-General opposed, and moved to dismiss the petition on two (2) grounds: (1) firstly, that "there is no proceeding established by law or the rules for the judicial declaration of the citizenship of an individual"; and (2) secondly, that as an application for Philippine citizenship, Burca's petition "is fatally defective for failure to contain or mention the essential allegations under Sec. 7 of the Naturalization Law," such as inter alia, the petitioner's former places of residence. Moreover, there was the absence of the affidavits of at least two supporting witnesses. When the trial court granted the petition, the SolicitorGeneral appealed the case to the Supreme Court. HELD. (1) "By constitutional and legal precepts, an alien woman, who marries a Filipino citizen, does not — by the mere

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fact of marriage — automatically become a Filipino citizen." Reason: she must possess all the qualifications and none of the disqualifications for naturalization. (NOTE: The Court observed on this point that if it is enough to have none of the disqualification — without requiring the presence of qualifications — there is a danger that a person, such as the maintainer of a bawdy house, who has not been previously convicted by a competent court could become a Filipino — since it is the conviction that could disqualify.) (2) T h e rule heretofore adverted to is to be observed whether the husband be: (a)

a natural-born Filipino;

(b)

a naturalized Filipino; or

(c)

a Filipino by election.

(3) "If an alien woman married to a Filipino does not ipso facto become a Filipino citizen, she has to file a 'petition for citizenship' (petition for naturalization)." This petition must: (a) recite that she possesses all the qualifications set forth in Sec. 2, and none of the disqualifications under Sec. 4 of the Revised Naturalization Law; (b) be filed in the Court of First Instance (now Regional Trial Court) where the petitioner has resided at least one year immediately preceding the filing of the petition. (4) "Any action by any other office, agency, board, or official, administrative or otherwise — other than judgment of a competent court of justice — certifying or declaring that an alien wife of a Filipino citizen is also a Filipino citizen, is hereby declared null and void." The Court, after treating Burca's petition as one for naturalization, then went to the merits of the petition, and denied the same on the ground that not all of her former places of residence had been stated therein, and on the further ground that the petition was not supported by the affidavit of at least two credible persons.

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/REVERSAL OF THE BURCA DOCTRINE In the Moy Ya case, the Supreme Court reversed its position in the Burca case, and stated that upon the foreigner's marriage to a Filipino male citizen, she becomes a Filipino, provided she has none of the disqualifications for Philippine citizenship. Ching Leng v. Galang L-11931. Oct. 27, 1958 FACTS: Ching Leng, a Chinese was granted Philippine citizenship on May 2, 1950 by the Court of First Instance (now Regional Trial Court) of Rizal. Later, his wife filed a petition for the adoption of his five illegitimate minor children. The adoption was allowed. Ching Leng then requested the Commissioner of Immigration and Deportation for the cancellation of the alien certificate of registration of said minors on the theory that they were now Filipino citizens. Commissioner of Immigration Galang denied the request citing Opinion No. 269 of the Secretary of Justice dated Oct. 9, 1954, which ruled that adoption does not effect a change of nationality of the adopted. Ching Leng then filed this action to compel Galang to cancel said alien certificates. HELD: The alien certificate of registration will not be cancelled because the adopted children have not become Filipinos, in view of the following reasons: (a) While generally an adopted child has the rights of a legitimate child (See Art. 189, Family Code) still citizenship is not a right but a mere privilege; (b) Granting that citizenship is a right, it is not enumerated as such in the Civil Code (now Art. 174 of the Family Code] which enumerates the rights of legitimate children, and, therefore, is not one of those alluded to in the Civil Code [now Art. 189 of the Family Code]; (c) Acquisition of citizenship partakes of the character of naturalization and this matter is regulated not by the Civil Code [now Family Code] but by special laws, (Art. 49, Civil Code); (d) Under Sec. 15 of the Revised Naturalization Law, the words "minor children" refer generally to legitimate

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children of the mother for in the latter caee, they follow her nationality, not that of the illegitimate father; (e) If adoption by a natural-born Filipino doea not vest Philippine nationality in the adopted child, there is no plausible reason why adoption by a naturalized Filipino should have a more far-reaching effect; (f) If adoption can confer Philippine nationality on the adopted, many people will resort to this method rather than to the more difficult process of formal naturalization proceedings. (NOTE: Whether or not the illegitimate Chinese children in this case continued to be regarded as Chinese by China is a matter that depends on Chinese law. What is clear is that under our law, they are not Filipino citizens.) WHERE A DECLARATION OF PHILIPPINE CITIZENSHIP MAY BE MADE A judicial declaration that a person is a Filipino citizen cannot be made in a petition for naturalization for the reason that in this jurisdiction, there can be no independent action for the judicial declaration of the citizenship of an individual. Courts of justice exist for the settlement of justifiable controversies, which imply a given right, legally demandable and enforceable, an act or omission violative of said right, and a remedy, granted by law for said breach of right. As an I N C I D E N T only of the adjudication of the rights of the parties to a controversy, the court may pass upon, and make a pronouncement relative to their status. Otherwise such pronouncement is beyond judicial power. This holding OVERRULES the holding in Pablo y Sen, et al. v. Republic, L-6868, April 30, 1955 and other previous cases to the effect that the court can make a declaration that an applicant for naturalization is already a Filipino citizen in the same naturalization proceedings if the evidence so warrants. (Tan Yu Chin v. Republic, L-15775, April 29, 1961; Tan v. Republic, L-16108, Oct. 31, 1961; Dionisio Palaran v. Republic, L-15047, Jan. 30, 1962; Reyes et al v Republic, L-17642, Nov. 27, 1964; Lao Yap Han Diok v. Republic, L19107-19109, Sept. 30, 1964). Indeed a declaration of Philippine citizenship C A N N O T be validly made in an action for declaratory relief (In Re Villa Abrille v. Republic, L-7096, May 31, 1956) or in a summary action for a change or correction in the Civil Registry

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under Art. 412 of the Civil Code.fTin v. Republic, L-5609, Feb. 5, 1964). One instance when a declaration of Philippine citizenship may be made is a petition for injunction to restrain, for instance, the Alien Control Officer, acting under orders from an Associate Commissioner of Immigration and Deportation, from compelling certain people, allegedly Filipinos, to register as aliens. (Lorenzo Lim, et al. v. De la Rosa, L-17790, March 31, 1964). Lorenzo Lim & Juana Alvarez Lim v. De La Rosa, Et Al. L-17790, M a r c h 31, 1964 FACTS: Lorenzo Lim alleges that he is a citizen of the Philippines, but the Department of Justice, in three separate opinions rendered in 1955, 1956, and 1958, respectively, denied said claim. Pursuant to said opinions, respondent Alien Control Officer, upon orders from respondent Associate Commissioner of Immigration and Deportation, required said petitioner to register as. an alien within ten (10) days upon receipt of the notice in accordance with the provisions of the Alien Registration Act under which all aliens residing in the Philippines must register with the Bureau of Immigration and Deportation. Petitioner Lorenzo Lim and his wife, the other petitioner, thereupon, filed an injunction suit with the Court of First Instance (now Regional Trial Court) of Manila to enjoin respondents from requiring or compelling them (the spouses) to register as aliens. The CFI ( R T C ) , after hearing, rendered judgment holding that the said spouses are Filipino citizens, and enjoining respondents from requiring their registration as aliens. Respondents brought this appeal on the principal ground that petitioners' citizenship cannot be determined under the petition. HELD: What would be the remedy of a citizen or an inhabitant of the country claiming to be a citizen thereof, who is being required or compelled to register as an alien by administrative officers of the Government, who, relying upon rulings or opinions of superior administrative officers, are in turn complying with their duty? If the person claiming to be a citizen of the country who is being required or compelled to register as alien can show, establish or prove that he is such citizen, the remedy of injunction to prevent the officers from requiring or compelling him to register as alien is certainly

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the proper and adequate remedy to protect his right. The finding of the trial court that petitioner Lorenzo Lim ie such a citizen being supported by the evidence presented, the judgment appealed from is affirmed. In the case at bar, the following were proved: (a) After the passage of Commonwealth Act No. 625, Lim elected Philippine citizenship; (b)

In 1955, he was a registered voter;

(c)

In 1957, he was issued a Filipino passport;

(d) In 1957, also, the Court of First Instance (now Regional Trial Court) of Zamboanga City, in granting a petition for a change of name stated that Lim is a Filipino citizen; (e)

Lim has never been registered as an alien; and

(0 The Certificate of registration of his business name recites that Lim is a Filipino citizen. In Re: Petition for correction of entry of certificate of birth of the minor Chua Tan Chuan L-25439, March 28, 1969 FACTS: An illegitimate child of a Chinese father and a Filipino mother was registered in the Civil Registry as a Chinese. She filed a petition for the correction of the entry to make her citizenship read as "Filipino" in view of the absence of a marriage between her parents. Will the petition prosper? HELD: (Thru then Mr. Justice Enrique M. Fernando, later to become Chief Justice): No, the petition will not prosper, because although ostensibly this is a mere petition for a clerical correction, still in substance, what is sought is a judicial declaration of Philippine citizenship. (See Reyes v. Republic, L-17642, Nov. 27, 1964). Republic v. Hon. Manolo L. Maddela L-21664, March 26, 1969 FACTS: Miguela Tan Suat, a Chinese woman married to a Filipino, went to court to seek a declaration of Philippine citizenship and to compel the Commissioner of Immigration and Deportation to cancel her alien certificate of registration in view of her marriage. Will the petition prosper?

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HELD: (Thru then Mr. Justice Querube Makalintal, later to become Chief Justice): No, because generally, no person claiming to be a citizen can get a judicial declaration of citizenship. U.S. NATURALIZATION LAW VIS-A-VIS FILIPINO WAR VETERANS The Immigration and Nationality Act of 1990 provides the naturalization of Filipino war veterans who served in an active duty status under the command of the United States Armed Forces in the Far East (USAFFE), or within the Army, the Philippine Scouts, or recognized guerilla units. Under Section 113 of the United States Naturalization Law, veterans need not go to the United States after their US naturalization in Manila in order to petition members of their families. Petitions for spouse and minor children may be filed with the embassy and process in four to six months from the time of filing, if there are no problems with their petitions and applications for visa. Adult sons and daughters must wait at least 10 to 20 years before depending on the rate of movement of the immigration visa priority dates. Even illegitimate children who are unmarried and below 21 years old may be petitioned by veterans as long as they can substantiate their relationship with their fathers. "Unmarried" includes single, divorced or widowed. In the case of naturalized veterans who may wish to go the the U.S., their relatives may apply for a tourist visa in order to accompany them in their travel provided they can convince the consular officer that they have strong family ties and financial reasons to compel them to return to the Philippines, the embassy said. Benefits provided to veterans by the different States are independent of federal benefits and differ from State to State. Most of the time, eligibility is dependent on the State being the place of residency or home of record at the time of enlistment or induction. Dugcoy Jao v. Republic G.R. N o . 29397, M a r h . 29, 1983 FACTS: An illegitimate daughter of a Filipino mother was erroneously registered as an alien. She further claimed that she lost her citizenship upon marriage to an alien. Her

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alien husband died later. She petitioned the Regional Trial Court for "judicial repatriation" and which the court did declaring her Buch. ISSUE: Wae there proper repatriation? HELD: No, for the simple fact that there is no law authorizing "judicial repatriation.'' The woman in thiB instance only has to take the necessary oath of allegiance and to register Baid oath in the civil registry. Regarding the petitioner's claim of Philippine citizenship prior to the marriage, such may not be established in an action where the mother or his heirs are not partners thereto. Clearly, in a non-adversarial suit where affected persons are not made parties, Philippine citizenship may not be declared. JURISDICTIONAL ASSISTANCE BETWEEN STATES INSOFAR AS PERSONAL JURISDICTION IS CONCERNED In civil matters, States attempt to assist one another thru the use of letters rogatory. A letter rogatory is an instrument whereby a foreign court is informed of the pendency of a case and the names of the foreign witnesses, and is requested to cause their depositions to be taken in due course of law, for the furtherance of justice, with an offer on the part of the court making the request, to do the same for the other, in a similar case. Sec. 11, Rule 24 of the RuleB of Court says: "Persons before whom appositions may be taken in foreign countries — In a foreign State or country, deposition shall be taken (a) on notice before a secretary of embassy or legation, consul-general, consul, vice consul, or consular agent of the Philippines, or (b) before such person or officer BB may be appointed by commission or under letters rogatory." Sec. 12 of the same rule provides: "Commission or letters rogatory — A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such directions as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed To the Appropriate Judicial Authority in (here name of the country).' " 78

In the sphere of crimes, States assist one another in considering the following as crimes in the international legal order: piracy, n

BalurnXin£'a Law Dictionary, 2nd Edition, p. 744.

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genocide, the preparation of and participation in ware of aggression or in violation of international agreements. Moreover, either by virtue of a treaty or because of international comity, extradition has often been resorted to. TRANSNATIONAL CRIMES The U.S. government under President Bill Clinton has identified criminal activity as its "main concern" today, in fact, a matter of national policy and even going further by labelling it a "transnational crime" which knows no borders. From the U.S. government's perspective, the most serious a c t i v i t i e s of transnational crimes, include inter alia: drug transhipments from third countries to the U.S. thru Manila, counterfeiting U.S. treasury checks, theft and fraudulent use of credit cards and negotiable instruments, piracy of intellectual property, and money laundering. Also mentioned by Pentagon was visa and passport fraud as an alarming problem with the legitimate claimant ultimately suffering the most because of delays on the matter of investigative inquiry. Recognizing the importance of closer cooperation between the U.S. and R.P. law enforcement agencies, the Bill Clinton Government has invited the Fidel V. Ramos Administration to negotiate a bilateral mutual legal assistance treaty. This proposed treaty aims to establish a regular channel for obtaining law enforcement assistance in: (a) taking testimony or statements of witnesses; (b) providing documents and other physical evidence in a form admissible in U.S. and Philippine Courts; (c) executing searches and seizures; (d) freezing assets; and (e) locating or identifying persons or items, and other areas of mutual benefit. Added items for the Ramos administration's agenda include the following: (1) ratification of the 1988 Vienna Convention on Drug Trafficking. (This treaty can provide teeth via increased funding to drug enforcement efforts with appropriate implementing legislation on money laundering as assets forfeiture); (2) reform of Philippine banking laws to permit law enforcement agencies greater investigative access to bank records. (In the U.S., this has been found to be a crucial prerequisite to investigation and prosecution of white collar crimes). To this, however, the Ramos administration should examine its funding for law enforcement, i.e., higher salaries for the personnel to increase their motivation and reduce the incidence of graft and corruption.

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PIRACY Piracy is an act of violence committed on the open sea against persons and things, without lawful authority, done with animo furandi (intent to plunder) in the spirit and intention of universal hostility. It may also take the form of a forcible depredation by a mutinous crew or by the passengers against their own vessel. The offense is a crime against the law of nations. Accordingly, any State in whose jurisdiction the pirates may come, may try and punish them. The pirate is denied the protection of the flag which he may carry; he is treated as an outlaw, as an enemy of all mankind — hostis humani generis.* 79

80

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Many States have their own definitions of piracy. Unless these definitions are in accord with that hereinabove given, they are not universally accepted. Such acts of "piracy" are, therefore, cognizable only before the municipal tribunals of the State concerned. M

A "pirate" is one who acts solely on his own authority, without any commission or authority from a sovereign State and he acts both in peace and during war, appropriating to himself without any discrimination every vessel he fancies. Upon the other hand, a "privateer" (who commits the act of "privateering") makes the act of violence v/\th the authority of a State but for his own private gain; the object seized belongs to an enemy State; and the act takes place only during war. "Privateering" is used to receive sanction from international custom; today, it has been completely outlawed. 85

AIR HIJACKING AND TERRORISM Any businessman worth a grain of salt knows that terrorism impacts his bottom line. Terrorism, which pictures an atmosphere of threat or violence, has made international travel a crap shoot

'•"United States v. Palmer. 4 L. Ed. 471. ""See Oppenheim-Lauterpachl, op. eit., pp. 558-559. "'1 Kent, Comm. 183. S « Dole V. Insurance Co., 2 Cli(T, 394. ^The Lotus Case. 2 Hudson World Reporla, p. 69. "See Dole v. Insurance Co., supra; See Art. 122 or the Revised Penal Code and the case of People v. Lolo. 43 Phil. 19. Tor our own interpretation of the term •piracy." See also the Convention of the Law of the Sea's definition of 'piracy'. ISee Chapter 8 of this book.l "See Davison v. Sealkins. 2 Paine 324. M

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with loaded dice. Every now and then, acts of terrorism dominate the news with alarming regularity. In the characteristic language of Geoffrey Metcalf, author of the bestseller The Terrorist Killers (1988): "It is clearly the terrorists' intention to cause chaos and strike deadly fear among innocent bystanders in a misguided effort to make their point. Terrorist activity may be directed at governments, but it attacks individuals — defenseless individuals." One not uncommon act of terrorism is that of air hijacking, described simply as the unlawful seizure of aircraft in flight carried out by private individuals for personal reasons or out of political motives. Professors Robert L. Bledsoe and Boleslaw A. Boczek of the University of Central Florida and Kent University, respectively, have provided a summation of the history of air hijacking in this wise: T h e first attempt to deal with aircraft offenses was the Tokyo Convention of 1963 on Offenses and Certain Other Acts Committed on Board Aircraft (1963). It deals with air hijackers only incidentally, treating them as any other offender. It was not until 1970 that the Hague Air Hijacking Convention made unlawful seizure of aircraft a separate crime. A year later the Montreal Convention against Aircraft Sabotage covered aircraft offenses other than hijacking, such as placing explosives in aircraft and similar acts of sabotage, destruction of aircraft in service, damage to air navigation facilities, acts of violence against persons on board, and extortion hoaxes aboard an aircraft. Air hijacking became a serious problem in the 1960s when a series of aircraft seizures, initiated with a 1961 hijacking of a U.S.-registered airliner to Cuba made the international public and governments cognizant of the need to take appropriate measures. Governments also increasingly recognized the dangers posed by hijacking and similar offenses should not be overriden by real or alleged political considerations motivating the offenders. This point of view was endorsed not only by Western countries but also by the then Soviet Union and other communist States after they realized that their own aircraft were not immune to the menace of hijacking. Yet it soon became evident that international agreements alone could not be an effective weapon in combatting the menace of hijacking in the absence of full cooperation of all States, particularly if certain governments afforded shelter to hijackers or were otherwise in breach of international obligations.

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"Proposals designed to strengthen the enforcement of anti-hijacking regulations, discussed within the framework of the International Civil Aviation Organization (ICAO) and other global international agencies, have not so far resulted in more stringent and comprehensive enforcement rules to deal with aircraft offenseB. Upon the other hand, this failure has prompted national, bilateral, and regional action aimed at combatting air hijacking. On the national level, stringent anti-hijacking legislation and security measures contributed to a marked decline of air hijacking incidents by the late 1970s. There h a v e also been cases of unilateral self-help action against hijackers, such as the Entebbe raid in 1976 by Israeli commandos who rescued passengers of an Air France airliner in Uganda against that country's protests, and the Mogadishu raid in 1977 in which a hijacked Lufthansa plane was recaptured by West German troops with the Somali government's approval. On the other bilateral level. States have signed agreements providing for the return of hijackers to the State of registration or trial in the country of shelter. The U.S.-Cuban Memorandum of Understanding of 1973, subsequently denounced by Cuba in retaliation for an alleged U.S.organized sabotage of a Cuban airliner, is an example of such an agreement. On the regional level, the major Western industrialized countries agreed in 1978 to act in concert in suspending air traffic to and from States that failed to surrender hijackers and hijacked aircraft promptly to the State of the aircraft's registration. Beyond all these explicit agreements, customary international law does not seem to have developed a rule obligating States to take action against hijackers. Return of the hijacked plane and passengers appears to be enjoined by customary international law, however.' This development has surely been the grave menace to the safety and reliability of international civil aviation due LO the multiplication of hijacking incidents, and of terrorists acts against aircraft about to take off or land, and against airline passengers. For this reason, one consequence of the increase in the volume, range, and frequency of the international air traffic, coupled witl. the growing number of countries in which the aircraft of reguhu airlines are registered, has been the emergence of difficult pr olems of jurisdiction in respect to offenses committed on board aircraft in flight.

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As already adverted to, major attempts to deal with these problems were made by the Tokyo Convention of Sept. 14, 1963 (on Offenses and Certain Other Acts Committed on Board Aircraft), the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (opened for signature on Dec. 16, 1970), and by the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (concluded at Montreal on Sept. 23, 1971). In the period 1968-1971 there had not only been hijackings, but the related aircraft crimes of armed attacks, sabotage, and other forms of violence and intimidation directed against civil aviation, including the appearance of bomb-hoax extortion as a new kind of menace undermining public confidence in the security of international air transport and prejudicing the administrative and financial conduct of air services. It is evident, says Dr. J.G. Starke, an international law professor, that the law of aviation crimes cannot under these Convention of Tokyo, the Hague, and Montreal be "efficacious in the absence of full cooperation between all States (for) certain governments favor the provision of sanctions, or if not sanctions, means for bringing pressure to bear, where countries afford shelter to hijacked aircraft or are otherwise considered to be in breach of their obligations in that connection." Moves and proposals to this effect have since 1972 been made or mooted at meetings within the framework of the International Civil Aviation Organization and elsewhere. Says Dr. Starke: "There are some almost insuperable obstacles to such moves and proposals bearing fruit in the shape of an international convention which will come into force with the necessary participation of a wide spread of countries. Alternatives to a multilateral convention or multilateral conventions are bilateral treaties, or domestic legislation enabling the suspension of flights to or from countries sheltering hijackers, or not cooperating in the prevention of aircraft crimes. Such treaties and such domestic legislation are not prohibited by international law." GENOCIDE Genocide (literally, the killing of the genus or group) is the mass extermination of a racial, national, ethnic, or religious group. According to the 1950 Convention on Genocide, any of the following acts constitutes the international crime of genocide: (1)

the killing of the group members;

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the infliction on them of eerious mental or bodily harm;

(3) the deliberate infliction on the group of life conditions designed to cause its total or partial destruction; (4)

the prevention of births within the group; or

(5) the forcible conveyance of children of one group to another group. Under Art. 4 of the Convention, offenders are punished . whether they are rulers, public officials or private individuals. \Even mere conspiracy or attempt to commit genocide is punishable. The Convention, signed by more than a score of States, took effect on January 12, 1951. /EXTRADITION s^ErtradUionf is the surrender of one State to another of an individual accused or conY' d of a crime committer! w i t h i n thp / ^territory of the latter State in order that he may be dealt with according to the law of said latter State. Extradition may be accorded as a mere matter of comity, or may take place under treaty stipulations between two States. plia

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Among the most important common features in treaties of extradition are the following: (1) In the absence of a treaty, extradition cannot be demanded as a matter of right. If at all it is granted despite the absence of a treaty stipulation, it is only because of comity and mutual convenience. 88

( 2 ) Trial of the extradited person can be had only for the offense stated BOTH in the request for extradition and in the treaty of extradition. This is often referred to as the "principle of specialty."^(Hence, if the offense charge is "murder" and the crime proved is "cruel and unjust punishment," the person is entitled to be released). If the extradited person after his surrender to the 90

"*Sw Terlington u. Ames, 184 U.S. 270. "'See Fong Yue Ting u. U.S., 149 U.S. 698. ""See Charles H. Stockton. Outline of International Law, p. 189. "See Fen wick, International Law, p. 332. '"LAS. v. Rauacher. 119 U.S. 235.

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demanding State should commit another crime, he may properly be charged with this latter offense.'" (3) There can be NO extradition for P O L I T I C A L or RELIGIOUS offenses. NOTE: Genocide is not considered a political offense; hence, the offender may properly be extradited. "'' The mere killing of a Chief of State or ofHhe members of his family is not considered a political act or crime; the provision on this point is called the "attentat clause." 9

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NOTE: The "attentat clause " was first thought of by Belgium in 1856; the U.S.-Belgium Treaty of 1882 and the 1933 Montevideo Extradition Convention also contain similar clauses. Complex crimes (delits oomplexes) which combine political crimes with ordinary offenses are extraditable only insofar as they are non-political. In order to constitute an offense of a political character, there ought to be two or more parties in a State, each seeking to impose the government of its choice upon the other; if the offense is committed in pursuance of this objective, it is a political offense, otherwise, it is not. '' 94

9

(4) The crime must have been committed within the territory or jurisdiction of the demanding State; a contrary stipulation is, of course, valid. (5)

There ought to be prima facie proof of guilt.

(6) If the person extradited be acquitted, he cannot be tried for a criminal act committed previous to the extradition until after he has been afforded reasonable opportunity to return to his home State or to the State of asylum (or refuge). (7) Extradition should not be refused simply because the offender is a national of the State of asylum, unless the latter State (if it follows the nationality theory in criminal law — "any national of ours who commits any crime punished by our criminal laws can be tried by us, regardless of the place where he committed the offense") agrees to prosecute said offender according to its own laws.

"'Collins v. Johnson. 237 U.S. 502. '"Art. 7, (950 Contention on Genocide. "'Kelsen. Principles of International Law. pp. 249-250. "See Fen wick. International Law. p. 336. -'In re Caxtinrn. 1 Q.D. Div. 149. Hudnon Cascn. p. 1029. !

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(8) Usually, the offense charged muet be considered a crime both in the demanding State and in the State of asylum." ABDUCTION If a citizen of State A, accused of war crimes and the mass extermination of citizens of State B, seeks refuge in State C, but is kidnapped from State C by nationals of State B, may the tribunal of State B validly try said citizen for his alleged crimes? It is submitted that: (1) insofar as jurisdiction over the offense is concerned, State B has jurisdiction; (2) insofar as jurisdiction over the person of the defendant is concerned. State B has no jurisdiction because it has violated the territorial sovereignty and integrity of State C. (NOTE: State C may properly object before the United Nations: if it does not make the objection, or if having made it, it decides for reasons of its own to withdraw such objection, State B may properly try the defendant). United States v. Alvarez Machain 112 S. Ct. 2188, U.S. Supreme Court, June 15, 1992 In 1985, Special Agent Enrique Camarena-Salazar of the U.S. Drug Enforcement Administration ( D E A ) was abducted, tortured and murdered by drug dealers in Mexico. The DEA has gone to great lengths to bring the murderers to justice, and has resorted to kidnapping, from Mexico, some of those believed to be responsible for Camarena's death so that they may be prosecuted in United States courts. Mexico has officially protested the kidnappings. The Supreme Court has not ruled that those abductions did not violate the Extradition Treaty between the United States and Mexico, and that the Treaty, therefore, provides no basis for a U.S. court to divest itself of jurisdiction over the abductees. On April 2, 1990, Dr. Humberto Alvarez Machain, a physician and Mexican citizen, was abducted from his office in Guadalajara, Mexico, by several armed men, and flown by private plane to the United States, where he was arrested by the DEA. Alvarez

" S e e Kelsen, op. eit., p. 249.

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was accused of having participated in Special Agent Camarena's murder in a particularly grisly fashion: he allegedly used his medical skills to prolong Camarena's life under torture so that other members of the drug ring could continue to interrogate him in an effort to learn what he knew about their operation. Following Alvarez's abduction, the Government of Mexico presented a series of diplomatic notes to the Department of State. The notes accused the United States of having had knowledge of the abduction, contended that the abduction violated the Treaty, and demanded that Alvarez be returned to Mexico. Alvarez was arraigned in the U.S. district court in Los Angeles, and moved to dismiss his indictment. He argued, inter alia, that the court lacked personal jurisdiction over him because his abduction had been orchestrated by the DEA without the consent of the Mexican Government and, therefore, violated the Treaty. Had Alvarez been correct—that his abduction violated the Treaty—his situation would arguably have fallen within the scope of certain recognized exceptions to the longstanding Ker-Frisbie doctrine. That doctrine, named for Ker v. Illinois (119 U.S. 436 |1886|) and Fnsbie v. Collins (342 U.S 519 11952]), stands for the general proposition that jurisdiction over a defendant in a criminal case is not affected by the manner in which he or she has been brought before the court — including kidnapping by government agents. [In the case at bar (U.S. u. Alvarez-Machain ), the Supreme Court sustained the jurisdiction of a U.S. court to try a Mexican national, charged with various counts of conspiracy, kidnapping and the murder of a U.S. drug enforcement agent in Mexico, even though his presence in the United States was the result of abduction rather than extradition pursuant to the Extradition Treaty between the United States and Mexico. The Court did not hold, as widely reported in the media, that the Treaty permits abduction, that abduction is legal, or that the United States had a right to kidnap criminal suspects abroad On the contrary, the Court acknowledged that the abduction may have been a violation of international law. It stated. "Respondent and his amici may be correct that respondent's abduction was shocking' and thai it may be in violation ,>( general international law principles" Not all abduction are violations of international law, however. Abduction tif torrm-

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ists may be justified self-defense under Article 51 of the United Nations Charter and may thus not be in violation of international law. That terrorist acts are not simply crimes committedxby individuals against individuals, but are acts planned by States and aimed at other States, is clear from recently opened KGB files. A KGB memorandum states that in 1968 the Soviet Union agreed with the Popular Front for the Liberation of Palestine ( P F L P ) on a "long term program of sabotage and terrorism,'' including "actions against U.S. and Israeli personnel in third countries aimed at obtaining reliable information about the plans and intentions of the U.S. and Israel." (Farts on File, New Republic, June 29, 1992, pp. 16-17)]. The Court did reject the reasoning of the U.S. Court of Appeals for the Ninth Circuit that the abduction violated the Extradition Treaty, and that, the Supreme Court reaffirmed the long-established Ker-Frisbie (supra) doctrine that "the power of a country to try a person for a crime is not impaired by the fact that he has beeil brought within the court's jurisdiction by reason of a forcible abduction." The Court's holding is consistent with existing international law, with its application of the Fourth Amendment to illegal arrests domestically, and with the broad powers and deference that it has historically accorded to the Executive in the conduct of foreign affairs. INTERNATIONAL DRUG TRAFFICKING Owing to the widespread illicit trafficking of drugs, it is fortuitous that an international conference has been convened precisely to address this global malaise. In 1987 (June 17-26), the International Conference on Drug Abuse and Illicit Trafficking convened in Vienna, where it adopted two ( 2 ) independent documents: (l).the Comprehensive Multidisciplinary Outline; and (2) the Declaration on Drug Abuse and Illicit Trafficking. The Conference addressed the long-standing issues of the supply of and illicit trafficking in drugs, but it also emphasized the need to reduce demand for drugs and to increase the number and quality of rehabilitative and treatment alternatives available to drug abusers. Though the Conference delineated future goals in the battle against drugs and the means to their attainment, the success of its initiatives will ultimately

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depend on the efforts and cooperation of individual States, as well as on the reorganization of economies that are financially d e p e n d ent on the production of drugB. The first major document, the Comprehensive Multi-disciplinary Outline of Future Activities in Drug Abuse Control (Outline), specifically highlights the need to reduce illicit demand and to rehabilitate drug abusers. Specific targets are indicated and actions to be taken at each level — national, regional, and international — are defined. In connection with the prevention and reduction of demand, for example, seven (7) targets are presented: (1) assessment of the extent of drug misuse and abuse; (2) organization of comprehensive systems for the collection and evaluation of data; (3) prevention of drug abuse thru education (4) prevention of drug abuse in the workplace; (5) prevention programs by civic, community, and special interest groups; (6) leisure-time activities in the service of the continuing campaign against drug abuse; and (7) programs undertaken thru public information media. Suggested courses of action at the national level to meet the first target, assessing the extent of drug abuse, include: reviewing current methodologies for epidemiological studies of drug abuse; reviewing present methods of data collection; and establishing central records for storing and evaluating data. At the regional and international level, the possibilities include: comparative studies by regional organization:; of drug abuse patterns; the establishment of formal agreements for international collaboration in the measurement of international drug abuse patterns; and technical assistance to States by international organizations, such as the World Health Organization ( W H O ) , in the planning and carrying aut of epidemiological surveys. The second major document of the Conference, the Declaration of the International Conference on Drug Abuse and Illicit Trafficking (Declaration), announces priorities for future responses against drug abuse and drug trafficking. The Declaration also calls for the early finalization and adoption of the draft UN Convention Against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances. Begun in February 1985, the Convention grew out of concern over the increasing difficulties that widespread and intensified drug trafficking presented to law enforcement and government agencies. Its objective is to strengthen international cooperation and coordination among customs, police, and judicial bodies

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by providing them with guidelines for the interception of illegal drugs at all stages of trafficking operations, including the laundering of profits from illegal sales. Among the major innovations contained in the draft are provisions to facilitate the identification, tracing, freezing, seizure, and forfeiture of illegal drug profits. The draft also obligates individuals signatory countries to extradite drug traffickers and to enforce adequate sanctions against trafficking, as well as to provide mutual legal and judicial assistance in prosecuting drug offenders. The high level of governmental participation in the Conference illustrates a growing commitment on the part of the international community to cooperate in the elimination of the global narcotics problem. However, the Conference does not signal the acceptance of formal obligations, but merely a declaration of intent. Though agreement on the path to be followed is a necessary step toward the eradication of the drug threat, the prospects for success hinge on States' willingness to carry their cooperation beyond declarations of intent and skeletal agreements. It goes without saying that the economic realities underlying the supply of narcotics are also a major obstacle in the fight against illegal drugs. Moreover, in areas outside of research and statistics, particularly in law enforcement and extradition, concerns about the threat of terrorism and insurgency may impede effective cooperation. AIDS AND INTERNATIONAL CRIMINAL LAW Recent examples of crimes associated with AIDS warrant a discussion of the ramifications of the disease for international criminal law. Dr. Sue Titus Reid, author of the book Criminal Law (1989 ed.) has written a succinct perspective on the AIDS phenomenon, thus: "AIDS has become a household word in the world. AIDS is the abbreviation for acquired immune deficiency syndrome, a deadly disease that affects the immune system, leaving the body unable to fight infections. The virus that causes it iB acquired thru exchanges of bodily fluids with a person w h o carries the virus. Although initially the groups at highest risk for acquiring the disease were identified a s homosexual males a n d intravenous d r u g users, it is n o w clear that the virus that causes AIDS m a y also be transmitted

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thru heterosexual relations, thru blood transfusions, and from mother to unborn child. Not clear is whether the disease may be transmitted to health care personnel by their AIDS patients; but unless adequate precautions are taken, the possibility exists. "What effect will the AIDS epidemic have on law? Already, civil cases have been filed by victims who argue that an AIDS patient know or should have known about the presence of the virus and, therefore, should have refrained from sexual relations. Likewise, AIDS victims who acquired the virus thru blood transfusions may bring civil suits; organ transplant patients will also seek redress in the courts. Other civil actions have been brought by people who claim they have lost their jobs because of the disease; civil rights have been allegedly violated, and slander and libel have been alleged. "A most significant question, however, is how AIDS will affect the criminal law. Prosecutions under existing U.S. criminal statutes have already been brought against carriers of the virus that causes AIDS. In December 1987, a soldier charged with aggravated assault pleaded guilty before a general court martial in Fort Sill, Oklahoma, to a lesser charge of willfully exposing a female to the virus. The soldier was accused of having sexual intercourse with the woman without using a condom or other form of barrier protection knowing that he had tested positive for the AIDS virus. ("AIDSInfected Soldier Admits to Sex Charge," Tulsa World, Dec. 16, 1987, p. 10 A, col. 1). Also in 1987, a federal district court in Minnesota refused to overturn an assault with a deadly or dangerous weapon conviction in the case of a federal prisoner who, after testing positive for the virus that causes AIDS, bit two correctional officers. The court upheld the lower court's ruling that the inmate's mouth and teeth constituted the deadly or dangerous weapon in this case. (t/.S. v. Moore, 669 F. Supp. 289, Dist. Ct. Minn, 4th Div. 1987, affd. 846 F.2d 1163 8th Cir. 1988). T h e problem of AIDs will continue to plague the global society. As attempts are made to find a vaccine, a cure, even a treatment, people must, learn to deal with the social, emotional and moBt especially legal, problems that already accompany the disease."

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INTERNATIONAL TRAFFICKING FOR CHILDREN According to Nigel Cantwell, program officer on inter-country adoption of the Geneva-based Defense for Children International (DCI), children, regardless of sex and race, are being sold at $5,000 to $40,000 each in some countries. In a 1992 regional conference held in Manila on "Protecting Children's Rights in Inter-Country Adoptions and Preventing Trafficking and Sale of Children," Cantwell, founder of DCI, said the organization is "working on the rights of children in order that illegal practice under guise of inter-country adoption could be stopped." Considering that some 20,000 children are being given up for adoption each year or about 180,000 in 10 years and with 90% of the children coming from Latin America and Asia, any country or source of adoption is vulnerable to trafficking because of severe economic problems. Countries vulnerable to these kinds of problem are Latin America, particularly Brazil, Africa and the Asia Pacific region, China, the Philippines, Sri Lanka, Bangladesh, Nepal, America, and Europe. According to the United Nations International Children's Fund ( U N I C E F ) , a worldwide movement is expected in the mid-1990s (1995 onwards) to drum up support to promote survival, protection, development, and participation to resolve this common concern. KIDNAPPING Council of Europe: Committee of Ministers of Recommendation 6n Measures to be Taken in Cases of Kidnaping Followed by a Ransom Demand Introduction 1. The European Committee on Crime Problems (CDPC) at its 26th Plenary Session in 1977 set up a Select Committee on Violence in Present-day Society and gave it the task of studying, with a view to drafting recommendations, the general and specific problems raised by crimes of violence (e.g., hold-ups and kidnappings) in present-day European society. Politically motivated crimes were excluded. However, in view of the scope and nature of

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the subject, the CPDC considered that it should he dealt with in stages each defined by ad hoc terniB of reference. The work of the Select Committee, in compliance with its first ad hoc terms of reference, led to the adoption of Recommendation No. R (80) 10 on measures against the transfer and the safekeeping of funds of criminal origin. The present Recommendation is the result of the work of the Committee pursuant to its second ad hoc terms of reference which read as follows: "Study of the particular problems relating to kidnapping followed by ransom demands particularly: a. The role of the authorities after a hostage has been taken and the ransom demanded; b. c. aries;

the question of freezing the victim's assets; the criminalization of the activities of intermedi-

d.

the question of professional secrecy; and

e.

evaluation of the role of the mass media."

2. The Committee met under the chairmanship of Mr. V. Esposito (Italy). It consulted with a psychiatrist specialized in the questions under consideration and heard the opinions of prosecutors, police officers and journalists. The ICPO-Interpol and UNSDRI were represented on the Committee by observers. General Observations 1. Kidnappings followed by a ransom demand are among the most serious acts of violence. Their incidence is not uniformly spread throughout Europe: according to studies carried out as its request by UNSDRI and by Mr. Palmeri (Italy), the Committee found that the phenomenon is rife in certain European countries and more particularly in one of them. This situation entails a risk to the other European States, and it is, therefore, important that they should all coordinate and step up their efforts to prevent any extension of this particular form of crime. Because of the very uneven incidence of the phenomenon in the various member-States, no international comparison can be made on the basis of statistics alone. Moreover, there are marked

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differences in the ways in which countries tackle problems related to kidnappingB. It has, nonetheless, been possible to identify a number of practical measures common to all, which form a part of the global strategy needed to combat kidnaping effectively. The fundamental elements in that strategy are as follows: a.

preparedness to deal with kidnappings;

b.

coordination of action and information;

c. a correct assessment of the various interests involved, and especially the paramount concern to safeguard the victim's life; and d. consultation of all the persons involved, particularly the family and the media. The gravity and complexity of kidnapping cases lie in the fact that they are an assault on a person's liberty and threaten that person's life for the purpose of extorting money. Their principal characteristic is the diversity of interest at stake, particularly concern for the victim's life, on the one hand, and respect for the fight against criminality upon the other. The victim fights for survival and an early release. He also strives to preserve his family privacy and to defend his assets, though in most cases he is unable to express his will or defend his interests; they are defended by his family, which is then faced with the dilemma of either capitulating to the kidnappers' demands and finding some ways of paying the ransom or placing itself in the hands of the authorities. The latter have a twofold responsibility: to the victim and to society. These interests are legitimate and must be respected. Consequently, everyone involved in a kidnapping has an obligation to adopt attitudes and take decisions having regard not only to his own interest but also to those of others, even if they are contradictory and likely to lead to great difficulties, particularly for the authorities. In the concern to prevent this form of crime, one approach is to give precedence to the general interest, possibly to the detriment of private interests, notably those of the victim. However, moral and humanitarian considerations have led the Committee to discard that approach and, in most cases, to consider that the inter-

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est of the kidnapped person should take precedence over considerations of crime prevention and punishment. This concern should not be seen as an invitation to the authorities to favor payment of the ransom on a systematic basis; it would run counter to the multiple objective that it pursues, the victim's release being only one aspect of it. It would, furthermore, be regarded by criminals as an inducement to crime. The underlying idea of this recommendation is increased efficiency and not more bureaucracy. The referred to can be set up within existing frameworks. clude human and/or technical resources, notably data

to achieve machinery It may inbanks.

2. This recommendation calls for the establishment or improvement of a system whereby the different national machineries referred to in paragraph 1 can liaise directly with each other. Indeed, an easy, expedient and direct exchange or information relating to past cases and to stored data is particularly useful. The ways and means of implementing this recommendation depend very much on the kind of machinery that each State sets up. Such a recommendation should not lead to duplication with Interpol's existing network, which operates very effectively. However, it only enable ties to be forged between the domestic authorities responsible for combating kidnappings followed by ransom demands, after contracts have been made with the Organization or its National Central Bureaux. We are thinking, inter alia, of cases in which the hostage's life is in imminent danger and where his/her safety does not depend solely on the police and judicial authorities normally responsible for prosecuting crime. In cases where the machineries referred to would directly exchange police information, the Interpol National Central Bureaux concerned should be kept informed. 3. This recommendation provides for various measures to be taken in order that, whenever a kidnapping case arises, the authorities are prepared to deal with it in the best way. a. The first point to make is that, once a person has been kidnapped, the authorities are faced with an emergency. This means, firstly, that decisions of a sometimes exceptional character have to be taken urgently and, secondly, that ihe most disparate departments and authorities have to work

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together. For example, banking authorities may be called upon to supply large sums of money, while the customs or exchange control authorities may be aBked to authorize the transfer of funds outside the country, and transport authorities will be asked to provide certain types of transport. The armed forces, the postal administration, prison governors, federal and local authorities, etc. may also be called upon. It was thought that, in order to preserve unity of decision-making and avoid dispersal of effort which might detract from effective action, a global assessment of the situation should be made in each case, with the participation of all those actually or potentially involved in the various lines of action. It might be envisaged in this context to set up a crisis management team. b. Police officers, prosecutors and judges responsible for combating kidnappings should be acquainted with the technical problems posed by such crimes and, more specifically, with the psychological questions which arise from their contact with both the kidnappers and the families of the victims. c. When a kidnapping occurs, detailed plans of action must be worked out for immediate implementation by a hierarchical centralizing body commonly called a crisis management team — which will be empowered to take exceptional measures. In particular, these plans must contain guidelines for the various police services, prosecutors, the people called upon to maintain public order or provide medical, social and psychological assistance both to the victim and to the family, and finally the people responsible for liaison or coordination with the media. d. The successful conclusion of a kidnapping case depends very much upon the reaction of the family and relatives of the victim. Indeed, in typical caseB the kidnappers address themselves directly to the family who, therefore, has the burden of contacting the kidnappers. However, as was Baid above, the family is confronted with a painstaking and dilemmical situation which normally prevents it from having a sound judgment of all the circumstances of the case. Moreover, it is crucial that the authorities in charge may have constant contactB and cooperation from the family. It is, therefore, very important that the family, to the extent that they agree to it, be advised and assisted by qualified persons

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(e.g., doctors, psychiatrists, social workers, etc.) in order to help them overcome the stress of the situation. Furthermore, such advice and assistance should be made available both to the victim and his relatives after the conclusion of the case because of the psychological and social consequences that often show up several years after the incident. 4. A considerable degree of organization may be required in order to kidnap a person, and consequently a group is frequently involved. One way of thwarting a kidnapping, therefore, is to break the solidarity of the criminal group. Information obtained in several Council of Europe member-States reveals that this result can be achieved by allowing the criminal authorities in charge of a kidnapping case to give preferential treatment to a member of a group who, of his own volition, has prevented or helped to prevent the success of the kidnapping or has enabled the victim to be rescued or led to the arrest of the kidnappers. 5. This recommendation is in conformity with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms where the right to information is concerned. The Committee preferred not to recommend cooperation between the media and the authorities, it being observed that press representatives appear willing to assist the criminal authorities only in the matter of saving the victim's life and not of finding the kidnappers, their right to conduct their own investigations being recognized. The Committee also decided not to recommend the practice of holding press conferences or issuing communiques. It took the view that it could not propose any measures at variance with the underlying imperative of its work on this matter, namely the concern not to recommend anything which might undermine the climate of confidence that must be created between the authorities and the media. However, the Committee considered that journalists and other media professionals, being subject to the same obligations as any other citizen, must not do anything to harm the interest of any person, above all those of the victims. 6. It is pointed out that the Committee did not propose any recommendation relating to certain specific issues mentioned in its terms or reference, vis:

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a. The freezing of the victim's assets or those of his family is one method that h a s been applied by certain prosecutors in Italy in order to prevent the ransom from being paid a n d thus leave t h e authorities a free hand. The Committee was convinced that this kind of measure was likely: i. to aggravate the situation of the victim and hiB family unnecessarily. The family would then be faced with a fresh dilemma — whether to comply with the decision of t h e authorities or to disregard it and collect the m e a n s to pay the ransom; ii. to encourage a kidnapped person's family not to inform the authorities at once that a kidnapping had occurred; or iii. to make the authorities morally responsible for the victim's death. b. The Committee took the view that, in most cases, the intervention of an intermediary could not be ruled out, in the interests of the victim himself. Consequently, it did not see fit to recommend the specific criminalization of such acts. Upon the other hand, it is inadmissible that a mediator should act, not in the interests of the victim or his relatives but in his own interests, and especially for gain. His action would then appear to come within the scope of the law as possibly making him an accessory to the crime; for this reason a further criminal provision would not be justified either. c. The Committee admitted the great value of professional or official secrecy. The claiming of such secrecy, by a person bound to it by the law or a code of professional ethics, might seem to place an obstacle in the way of the criminal authorities dealing with a case of kidnapping followed by a ransom demand. However, experience in various countries shows that this is not a real problem: professional or official secrecy can only be invoked to the extent that it is designed to protect legitimate interests, within the limits of the profession or office in question. Comments on the Recommendation* One of the difficulties encountered in dealing with kidnapping cases Btems from the fact that different police authorities

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plus, in some cases, judicial authorities are called upon to intervene. Moreover, as there may be uncertainty as to the place where the kidnapping took place or where the victim is being held, information from different material or geographical sources must be collected and processed. The consequence iB that (a) the action of the various police forces must be coordinated, and (b) they must liaise with the judicial authorities, themselves acting in close concert. Recommendation No. R (82) 14 of the Committee of Ministers to Member-States on Measures to be Taken in Cases of Kidnapping Followed by A Ransom Demand (Adopted by the Committee of Ministers on 24 September 1982 at the 350th meeting of the Ministers' Deputies): —

The Committee of Ministers, under the terms or Article 15.b of the Statute of the Council of Europe;

—

Considering that the most serious acts of criminal violence include a large number of kidnappings, followed by a ransom demand, which are committed in several European countries;

—

Aware of the effects on the public of such acts of criminal violence and the public concern aroused by them;

—

Emphasizing the conflicts which may arise between the legitimate interests concerned, in particular between the life of the victims of kidnappings, on the one hand, and the interests of the State in combating these manifestations of crime and upholding the rule of law, upon the other;

—

Noting the dilemna and the feeling of being torn between different duties experienced by those called on to pay the ransom, as well as the pressure exerted on them;

—

Having regard to the difficulties encountered by the police and judicial authorities in the exercise of their duties during negotiations over the payment of a ransom and the liberation of hostages;

—

Anxious to coordinate and consolidate the measures taken by the member-States to combat this phenomenon and wishing to define a comprehensive policy which has become necessary;

—

Convinced of the delicate position of the media which may, as a result of the information they provide during such cases.

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endanger the life or safety of the victim, harm members of latter's family; relatives or third parties or hinder the authorities' investigations; Recommends that the government of member-States: 1. set up or reinforce the internal machinery needed to coordinate the action of the various police authorities and to provide information for the judicial authorities to which cases of kidnapping followed by ransom demands are referred; 2. examine the possibility of establishing or improving direct communication between the machineries referred to in paragraph 1 bearing in mind the organizational structures and resources of Interpol for the purpose of rapid and efficient exchange of information in this sphere; 3. be prepared to deal with kidnappings followed by ransom demands, in particular: a. by ensuring that, in the event of a kidnapping, the emergency arrangements necessary to safeguard the life of the victim and bring the case to a successful conclusion can be made by a permanent or ad hoc group comprising representatives of the various authorities concerned; b. by providing suitable professional and technical training for the police officers responsible for combating such crimes and the prosecutors and judges to whom such cases are referred. c. by drawing up operational plans to ensure that the authorities are not caught off their guard by such kidnappings. d. by ensuring that the family and relatives of the victim can be advised and assisted by qualified persons; 4. ensure that their legislation allows the competent judicial authorities before which a case of kidnapping is brought to take account in their decisions of the repentance of a kidnapper and, in particular, of any action by that person having caused the crime to miscarry, the victim to be freed or the kidnappers to be arrested; and 5. ensure that an atmosphere of trust and cooperation develops between the criminal authorities and the media so as to promote the successful performance of their respective tasks in a

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kidnapping case involving a ransom demand while, on the one hand, respecting both the secrecy of investigations and the public's right to information and, upon the other hand, not undermining any legitimate interests involved, particularly those of the victim. _ oOo —

Chapter 9 THE FIFTH FUNDAMENTAL RIGHT: THE RIGHT OF LEGATION OR OF DIPLOMATIC INTERCOURSE

NECESSITY FOR THE RIGHT To enable States to carry on friendly intercourse with one another, they must possess what is commonly known as the right of legation or the right of diplomatic intercourse. This__is not a 'I'MHIAI rfTli r TH fight; H PHI pis nn lyZby_ common consent As aptly pointed out in the Convention on Diplomatic Relations (signed at Vienna on April 18,1961 and subsequently ratified by the Philippine Government), "the establishment of diplomatic relations between States, and of permanent diplomatic missions, take place by mutual consent." (Art. 2). For instance, as of today, the Republic of the Philippines has formal diplomatic intercourse with Russia and China. The right to send envoys or establish diplomatic mission is called the active, right of legation; the right to receive such envoys or missions is the passive right of legation.' u

B

United States Diplomatic and Consular Staff In Tehran ICJ [1960] The rules of diplomatic law |are best described] gis "a self-contained regime which, on the one hand, lavs <JR>wn the receiving State^ffooTieaTjo^isreearding the facilities privileges,.

BHl

tne~~nriBWon and specifies the means at. the rlJFPP receiving Estate to counter any such abuse." 'See Oppenhs^B, op. cit.. p. 691.

407

of thp.

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Note: In the case of the United States Diplomatic and Consular Staff in Tehran (I960, ICJ 3), the International Court of Justice upheld the principle of the inviolability of the premises of a diplomatic mission and the correlative duty of the receiving State's obligation to protect the personnel of the mission. The circumstances were that in November 1979 a strong group of militant Iranians overran the compound of the Embassy of the United States at Teheran, seized buildings there, entered the Chancery and gained control of the main vault, and also detained diplomatic and consular staff and other persons as hostages. Embassy documents and archives were destroyed and ransacked or taken away. On the facts, the Court held that it was satisfied that the Iranian Government had failed to take appropriate steps within the meaning of Article 22 of the Vienna Convention on Diplomatic Relations to protect the premises, staff and archives of the mission against attack by the militants, or to take appropriate steps to protect American consulates at Tabriz and Shiraz. Other provisions of the Vienna Convention were relied upon, namely Article 25 imposing a duty on a receiving State to accord full facilities for a mission to perform its functions. Article 26 providing the freedom of movement and travel of mission personnel, and Article 27 imposing a duty to permit and protect free communication on the part of the mission for all official purposes. The analogous or corresponding provisions of the Vienna Convention of 1963 on Consular Relations were relied upon so far as concerned the consular staff held as hostages, and the American consulates at Tabriz and Shiraz. The Iranian Government, so it was ruled, had also failed in its duty to restore the status quo and to bring the infringements by the militants to an end.

The agents of diplomatic intercourse may he: (1)

Chiefs af States; or

(2)

Subordinate Officials

(a) ceremonial officers — who represent their States in such things as the inauguration of a new republic, coronation

THE FIFTH F U N D A M E N T A L RIGHT: THE RIGHT OF LEGATION OR OF DIPLOMATIC INTERCOURSE

of a king, queen, and the like. E.g., Norodom Sihanouk of Cambodia was proclaimed king on Sept. 25, 1993. (b)

political officers — they may either be:

1. delegates to international bodies or conferences (example: the Philippine delegates to the U N ) 2.

chiefs of missions (example: ambassadors)

Generally, it is the Chief of a Stat* who ^is th* finlo o r g a n nf the nation in its externa) iflqf'Ifmc, and jte-eole representative .with foreign nations?^ Thus, it is the President of a Republic (for example) who shapes and formulates the foreign policy of the State. In our country, the President appoints, sends, and instructs our diplomatic and consular representatives on matters affecting international diplomacy. In the formulation of foreign policy, it is usual for consideration of expediency and national interest to sometimes override those of courtesy and humanity. Thru his diplomatic powers, the President may recognize a new State or a new foreign government. It is only when the recognition is effected thru a treaty that the Philippine Senate shares with him this power, thru its authority to concur in the treaty. It iB) thus, universally recognized that the conduct of foreign relations is essentially an executive function. In this vast external realm, the President speaks and listens as the representative of the nation.' 1

For the nature of diplomacy requires centralization of authority and expedition of decisions which are inherent in executive tradition. An essential characteristic of diplomacy is its confidential nature. (People's Movement for Press Freedom v. Raul Manglapus, et al., G.R. No. 84642, Sept. 13, 1988, En Banc Minute Resolution). A complicated negotiation cannot be carried thru without many private talks and discussions, man to man, many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences

'Chief Justice Marshall, quoted in Writings of Thomas Jefferson, IX p. 256, Mem. Ed. 'U.S. v. Curtiss-Wright Export Corporation, 299 U.S. 304.

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with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances. If these reports should become public who would ever trust the delegations in another conference? Moreover, the President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and specially this is true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary and a premature disclosure of it is productive of harmful results. However, the execution of foreign policy cannot naturally be entirely done personally by the President. Therefore, in our Republic, it is the Secretary of Foreign Affairs, as head of the Foreign Service of our government, who executes said policy thru the various diplomatic and consular official In fact, according to former Secretary of Foreign Affairs (now Senator) Arturo Tolentino, while it is the President who appoints diplomatic officials like ambassadors, it is the Secretary who can designate the countries or places of assignment of said officials. Diplomatic Relations Rosalinda de Perio Santos v. Executive Secretary Catali no Macaraig and Secretary Raul Manglapus G.R. N o . 94070, April 10, 1992 (En Banc, Philippine Supreme Court) Justice Carolina Grino-Aquino: Petitioner Rosalinda de Perio-Santos, a career service officer with the rank of Chief of Mission II and Ambassador Extraordinary and Plenipotentiary was found guilty of dishonesty under Administrative Order No. 122 of the Office of the President. Meted upon her, after appreciating certain mitigating circumstances in her favor, was the penalty of reprimand with a warning that a repetition of the same or similar offense will be dealt with more severely. Then President Corazon C. Aquino affirmed Assignment Order No. 58/88 dated April 27, 1988 of the Secretary of Foreign Affairs recalling the petitioner to the home office from her post as permanent representative to the Philippine Mission to the

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United Nations and other International Organizations in Geneva, Switzerland. The Supreme Court of the Philippines, while finding petitioner innocent of the charges of dishonesty or misconduct and thereupon opining that the reprimand meted upon her person was unmerited, nevertheless, held that it (Court) is not disposed to disturb the order of the Department of Foreign Affairs ( D F A ) and the Office of the President recalling the petitioner to the home office. Considering that the conduct of foreign relations is primarily an executive prerogative, courts may not inquire into the wisdom or unwisdom in the exercise thereof. This is a principle laid down by the courts from time immemorial. The power to conduct foreign policy and its necessary element of assigning the country's representatives abroad is best addressed to the wisdom of the executive branch and not to be unduly interfered with by the judiciary. (U.S. v. Curtiss Wright Export Corp. 299 U.S. 304). Stated otherwise, the presidential prerogative to determine the assignment of the country's diplomatic personnel is unquestionable. The conduct of the country's affairs is vested on the President thru the head of the DFA, and who is mandated by law to maintain the country's representation with foreign governments, the United Nations ( U N ) , Association of Southeast Asian Nations ( A S E A N ) , and other international and regional organizations. The foreign service officers and employees abroad are under the supervision and control of the Chief Executive thru respondent Secretary. Thus, the assignment to and recall from posts of ambassadors are prerogatives of the President, for he to exercise as the exigencies of the foreign service and the interests of the nation may from time to time dictate. In the same vein, the recall order issued by the Secretary of Foreign Affairs (Assignment Order No. 58/88) was a valid exercise of his authority as an alter ego of the President. (Villena vs. Secretary of Interior, 67 Phil. 451). His order recalling the petitioner to the home office, having been affirmed by the President, any doubts as to its validity and propriety are thereby been laid to rest. On two (2) occasions (at least), the President or the Chief

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412

of State of any country may conduct diplomatic intercourse personally: (1) when he attends and participates in S U M M I T CONFERENCES — (those entered into by the Chief of State in an attempt to solve international problems) (2)

when he visits foreign Stales officially.

NOTE: When the visit is official, the Chief of State is entitled to full diplomatic honors and privileges. Theoretically, he is not supposed to discuss important State matters in the course of the social visit. However, in practice the opportunity to discuss such problems is tempting. NOTE: Sometimes, he may decide to make his visit incognito. If this is done without the knowledge of the authorities of the State visited, he cannot claim diplomatic immunity, unless he decides to reveal and prove his identity. If the incognito visit is with the knowledge of the State concerned, he gels diplomatic privileges; however, to preserve the "unofficial" character of the mission, he does not get ceremonial honors. (NOTE: An important member of the family of the Chief of State, e.g., ihe Crown Prince of Japan, heir-apparent to the throne, may also be accorded diplomatic privileges in case of a visit to the Philippines; protocol may even be temporarily set aside to enable the President himself to welcome the distinguished visitor. This, of course, presupposes the visit to be "officiar and not "incognito.") The principal assistant of the Chief of State in diplomatic intercourse is generally referred to as the Secretary or the Minister of Foreign Affairs. In the United Slates, he is known as the Secretary of State. It has been held that occasionally, an official written statement of the Secretary of Foreign Affairs may be binding on his government. The statements of then Vice-President Salvador B. Laurel, in his capacity as Secretary of Foreign Affairs in the A S E A N (Association of Southeast Asian Nations: Philippines, Malaysia, Singapore, Indonesia, Brunei, and Thailand — formed for 4

'See Legal Status of Eastern Greenland, Permanent Court of Intern;iLnm;il Justice, 1923, Series A/B, No. 53, p. 22.

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economic, cultural, and educational purposes) conference reflected the official stand of the Philippine Government. Press comments however, of foreign office officials, such as those made by then Acting Secretary of Foreign Affairs Salvador Lopez, on the Philippines' claim to North Borneo (Sabah), reflected merely his [Lopez'] private opinion on the matter, according to then President Diosdado Macapagal. This is so because the official stand of the Philippine Government was then still in the process of formulation. 5

At the Congress of Vienna of 1815 and the Congress of Aixla-Chapelle of 1818, four (4) classes of diplomatic officers were designated as chiefs of diplomatic missions. The classification is generally still followed today: (4) ambassadors — (they are the political, cultural, economic, and social representatives of their country to a foreign State; their offices are referred to as embassies); f2) ministers plenipotentiary or envoys extraordinary (ministers with a special function usually, the signing of a treaty); (3) ministers resident (they are the political, cultural, economic, and social representatives of their country to a foreign principal city; their offices are known as legation) (NOTE: The Philippines has an ambassador to the United States; it has also ministers to certain U.S. cities, e.g., New York and San Francisco. While the ambassador is the personal representative of the Chief of State, the minister plenipotentiary and the minister resident generally are not personal representatives). (44 the charges d'affaires (literally, in charge of affairs) are those officially below the rank of the ministers resident; in the absence of the latter they take their place. In common practice, the term charges d'affaires haB been used to designate the people temporarily in charge, no matter what their official rank or designation may be. NOTE: While the first three officials are accredited from Chief of State to Chief of State, the charges d'affaires are accredited from

'Manila Times, April 2, 1962.

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Foreign Office to Foreign Office. They are all, however, entitled to gun (cannon) salutes: ambassadors (19 guns); ministers plenipotentiary and ministers resident (15 guns); and charges d'affaires (11 guns). 6

The chief functions of diplomatic officials are: (1) to represent their State in negotiations with the State to which they are accredited; (2) to observe and report on occurrences, conditions, and developments in the receiving State which may vitally affect their home-States; 7

(3) to protect the nationals of their State, within the limits permitted by international law; (4) to promote friendly relations between the sending State and the receiving State, and develop their economic, cultural, and scientific relations; (5) to perform ordinary consular functions, if so desired by the sending State. (See Art. 3, Vienna Convention on Diplomatic Relations). The personnel of the diplomatic representatives may consist of two (2) groups: (1) the personal entourage — consisting of the members of his family as well as the members of his household; (2) the official entourage — which may include a counselor, various secretaries, attaches, clerks, interpreters, chaplains, and doctors. THE FOREIGN DIPLOMATIC CORPS (y> in a country — consists of all the foreign diplomats accredited to a particular country (the head of this group is called the DOYEN or DEAN who is usually the papal nuncio or legate with the rank of ambassador; if there is none, the oldest ambassador is chosen as the Doyen).

'See Wilson and Tucker. International Law, p. 169. 'Ibid., p. 170.

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NOTE; Parenthetically, it must be stated that the equivalent of ministers plenipotentiary in the representatives from the Vatican City are called papal internuncios). 6

(21 of a country — this refers to the entirety of our diplomatic officials abroad. DIPLOMATIC PROTOCOL The term "diplomatic protocol" is defined as "the totality of norms and rules which determine the external forms of relations between States, of diplomatic intercourse; it is a political instrument of diplomacy and creates a framework within which diplomatic activities are realized." (David Dreimann, Das Diplomatiscke Protokotl (1983]). According to Dreimann: To diplomatic protocol, which by its nature is universal, there applies the inalienable principle that the same rules of protocol...apply to all States, independently of their socio-economic character and their political, economic, and military strength. This rule results from the democratic principle of international law of equality and equal rights of all States." Dreimann mentions three "specifically socialist" points in the realm of diplomatic protocol. First, the protocolar position taken by the general secretaries, first secretaries, and members and candidates of the political bureaus of "the Marxist-Leninist parties in the socialist States." Second, the use of the term "comrade" in the Communist States in correspondence with "personalities" from socialist States. Consequently, the title "Excellency" does not have any meaning in the practice of diplomatic intercourse between socialist countries. Third, one is informed that the. cutaway is not used in socialist countries. In capitalist countries, tails and dinner jackets are still frequently worn, and "for this reason these garments also belong, there, to the basic equipment of diplomats from socialist countries." These, then, are all differences. No "new socialist principles" are established. Common sense statements are made such as: "Only big and rich States are economically able to keep their pwn embassies in all States with which they have diplomatic relations." "See Fen wick. op. eit.. pp. 264-265.

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All the rules of diplomatic protocol, w r i t t e n or u n w r i t t e n , are accorded with the strictest reBpect for r a n k , title, proper dress, etc., including the sampling of visiting cards a n d the wearing of decorations. Or the giving of such good advice as, "First one should serve the ladies," "Do not talk with your m o u t h full," do not go out with your shoes uncleaned" or "Do not pull your hat over your eyes and do not tilt it back," as well as the routine, day-to-day situations relating to diplomatic protocol such as diplomatic parties and "flag protocol." In some institutions of diplomatic law, one example: while dealing with the agrement, its refusal does not represent an unfriendly act vis-a*-vis the sending State. Be it noted that this allegation is too categorical because under certain circumstances a refusal may be seen as such. Recall that in 1983, after Kuwait "rejected" a n e w U.S. ambassador because he had served in Israel, a State Department spokesman said "the rejection means the po6t of ambassador to Kuwait will be vacant indefinitely." Kuwait apologized, saying it did not wish to harm relations with the U.S. (Cf. Christian Science Monitor, Aug. 18, 1983, p. 2). kPPOINTMENT OF DIPLOMATIC OFFICIALS Appointment to the diplomatic service is a delicate thing for if an ambassador or minister-designate is considered persona non grata by the receiving State, he may be refused recognition as such. To avoid embarrassment, States under the 1961 Vienna Convention have to resort to ansiirfbrmal inquiry (enquiry) as to the acceptability of a proposed envoy and to an informal conformity (agrement) the receiving State is not obliged to give reasons to the sending State for a refusal of agrement. (Art. 4. No. 2, 1961 Vienna Diplomatic Convention).*The entire informal process is called •$greatiol£$ A formal appointment is then made. To announce 9

publicly the appointment of ambassadors or ministers without the preliminary steps indicated hereinabove would be to commit a diplomatic faux pas for embarrassment may be invited. The envoy is generally armed with the following papers: (Jr) a letter of credence flettre de creance) (this gives the name of the representativeTTus rank, the character and general object of *See Oppenheim, op. cit., p. 702.

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417

his mission; it also contains a request for favorable reception and full credence; it iB sealed, but the ambassador is furnished several carbon copies [or photocopies] thereof); (2) a diplomatic passport (this authorizes his travel and describes both his person and his office); (3) hitrfM*frilc44oiM'[special diplomatic agents receive a document of general full powers (pleins pouvoirs) with authority to negotiate on extraordinary or special business]; (4) the cipher or code or secret key (for communication with his country). ( N O T E : In diplomatic semantics, the phrase "diplomatic pouch" does not technically exist. However, the term is used colloquially to mean "diplomatic carrier," which really refers to diplomatic correspondence which is being carried, and which is, thereforei,,exempt from inspection and censorship. In a popular sense, ji includes the pfflion,"^bjjpBraCT of diplomatic representatives which shall be immune from* seizure,> When the envoy arrives at the place of destination, he sends a copy of the letter of credence to the Minister (or Secretary ) of Foreign Affairs of the foreign State, and requests, if he be an ambassador or a minister, for a formal audience with the Chief of State. In the reception, he formally hands over to the Head of State the sealed letter of credence. 10

ACCREDITING MISSION TO TWO OR MORE STATES OR TO INTERNATIONAL ORGANIZATION The sending State may, after it has given due notification to the receiving States concerned, accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more than one State, unless there is express objection by any of the receiving States. If the sending State accredits a head of mission to one or more other States, it may establish a diplomatic mission headed by a charge'd'affaires ad interim in each State where the head of mission does not have his permanent seat. A head of mission or any member of the diplomatic staff of the mission may act as representative of the sending State to any international

"See Wilson and Tucker, op. cit., p. 174.

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organization. (Art. 5, Nos. 1, 2, and 3, Vienna Diplomatic Convention of 1961). ACCREDITATION OF SAME PERSON BY TWO OR MORE STATES Two or more States may accredit the same person as head of mission to another State, unless objection is offered by the receiving State. (Art. 6, Vienna Diplomatic Convention of 1961). APPOINTMENT OF STAFF MEMBERS Subject to certain restrictions, the sending State may freely appoint the "members of the staff of the mission" (the members of the diplomatic staff, of the administrative and technical staff, and of the service or domestic staff of the mission). In the case of military, naval, or air attache's, the receiving State may require their names to be submitted beforehand, for its approval. (Art. 7, Vienna Diplomatic Convention of 2961). In the absence of specific agreement as to size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State, and to the needs of the particular mission. (Art. II, Vienna Diplomatic Convention of 1961). DIPLOMATIC IMMUNITIES AND PRIVILEGES While traditionalists insist that diplomats are accorded certain diplomatic immunities and privileges because of exterritoriality, and while modernists say that diplomatic functions necessitate such rights, an American delegate to an international conference on the proposed codification of diplomatic immunities was heard to say: "There is no right in international law to diplomatic immunities. The United States accords diplomatic immunities and privileges only insofar as these are deemed expedient by the municipal laws of our country." Indeed it would seem that despite continued adherence to the custom of the international community of granting diplomatic privileges ^this matter is generally governed by a State's own national law. In the Philippines, Rep. Act No. 75 in addition to the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations, respectively, is one of our controlling laws on

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the matter. Traditional usage accords the following diplomatic immunities and privileges: Or) personal dignity and inviolability of the diplomatic envoy: (Under Rep. Act No. 75, any person who inflicts physical harm on him is penalized by imprisonment of not more than three years A N D a fine not exceeding two hundred pesos, in addition to the proper penalties under the Revised Penal Code. This is, however, conditioned on reciprocal provisions in the State of the envoy. 11

(2-} inviolability of the official residence, archives, and letters: (Thus, service of official processes is prohibited, without prior consent.). (3) freedom to communicate on official matters with the home State and with the envoy's nationals. (44 exemption from local criminal and civil jurisdiction for official and private acts. ( N O T E : They may not be sued, but if they commit an irresponsible act, they may be dismissed or recalled. Diplomatic privilege does not import immunity from legal liability but only exemption from local jurisdiction.' A suit for legal separation may be dismissed on the ground of diplomatic immunity.) 2

11

( N O T E : On this point Rep. Act No. 75, approved Oct. 21, 1946. says: "J8ec. 4. Any writ or process sued out of or prosecuted by any person in any court of the Republic of the Philippines, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign State, authorized and received as such by the President, or any domestic servant of any such ambassador or minister is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, shall be deemed void, and every person by whom the same is obtained, or prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall upon conviction be punished by imprisonment for not more than three years and a fine not exceeding two hundred pesOB in the discretion of the court. "Sees. 6 and 7. "Dickinson v. Del Solar, 1 K.B. 376. " T t i a i v v. Twang. 86 N . Y . S . 2nd p. G66.

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"Sec. 7. The provisions of this Act shall be applicable only in cases where the country of diplomatic or consular representatives adversely affected has provided for similar protection to duly accredited diplomatic or consular representatives of the Republic of the Philippines by prescribing like or similar offenses herein contained.") [NOTE: Under the Vienna Convention on Diplomatic Relations — signed at Vienna, April 18, 1961 — and already ratified by the Philippine Government — we have Art. 31 which says: "1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir, or legatee as a private person, and not on behalf of the sending State; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. "2. A diplomatic agent is not obliged to give evidence as a witness. "3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b), (c) of paragraph I of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence."] (5) exemption from being subpoenaed as a witness or from being forced to give testimony thru a deposition; (6)

exemption from taxation and customs duties;

(NOTE: This is granted because of international courtesy).

THE FIFTH FUNDAMENTAL RIGHT: THE RIGHT OF LEGATION OR OF DIPLOMATIC INTERCOURSE

(7) right to display the national flag and coat of arms in the proper buildings; (8) .freedom of movement within the territory; (9)

right

of transit thru third States;

jjftfPTTE: A diplomat in transitu would be entitled to the same immunity as a diplomat in situ.) u

410) freedom of religion: (11) right to exercise jurisdiction within hi8 residential and official domicile (thus, he may, for instance, arrest a member of his suite); (12) right to precedence and to certain ceremonial honors, according to rank; 15

(13) right to grant asylum (in certain instances).

16

INVIOLABILITY OF DIPLOMATIC PREMISES Fatemi v. United States 192 A L 2nd 52S DC .Ct. A . , July 12, 1963 (AJTJ- — Vol. 58, Jan. 1964, N o . 1, p. 192) FACTS: Fourteen Iranian students entered the Iranian Embassy in the United States to protest against the Iranian land reform referendum. The Iranian Minister ordered the students to leave the premises. When they refused to do so, the Minister requested that the local authorities arrest them. The U.S. Police thus arrested the students for unlawful entry. ISSUE: Was the arrest lawful? HELD: Yes, the arrest was lawful. In the first place, a foreign embassy is not to be considered the territory of the sending State. Secondly, the local police hastile authority and responsibility to enter a foreign embassy, if the privilege of

"Bergman* v'. de Sieyet, 170 F. 2nd 360. "Oppenbdm, op. cit.. pp. 627-631.

"Ibid.

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diplomatic inviolability is N O T I N V O K E D when an offense is committed therein in violation of local law. NOTE: Anent the inviolability of the premises, the following rules are apropos: (1) the premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. (2) the receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission, or impairment of its dignity. (3) 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. (Art. 22, N.os. 1, 2, and 3, Vienna Diplomatic Convention of 1961). WAIVER OF IMMUNITIES Waiver of diplomatic immunities and privileges is allowed. If* purely personal, the individual concerned may make the waiver; if the right isTfot personal but official, the home government must make the waiver in behalf of the chief of mission. In the case of subordinates, the waiver of a non-personal right is done either by the home government or by the chief of mission himself. Waiver may be effected in the following ways: (1) (2) of suit;

express waiver — as already discussed; implied waiver — failure to assert immunity at the time

(NOTE: Waiver of immunity from suit does not necessarily carry with it waiver from execution). (3) presumed waiver — when the envoy himself sues, he necessarily should allow a counterclaim against himself if it should arise from the same transaction; and sometimes even if the countersuit comes from an unrelated claim. 17

''•See National City Bank of New York v. Rep. of China, 348 U.S. 356.

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423

The Asian Development Bank ( A D B ) , an international financial institution (second only to the World Bank as a Bource of cheap funds for infrastructure and productive enterprises in Asia), has in its Charter a provision enabling the bank to effectively fulfill its purpose and to carry out the functions entrusted to it. Henceforth, its status, immunities, exemptions and privileges shall be accorded to the Bank in the territory of each member. Art. 49 of the Charter reads: T h e Bank shall possess full juridical personality, and, in particular, full capacity: ( i ) to contract; (ii) to acquire, and dispose of immovable and movable property; and (iii) to institute legal provisions. Arts. 50-58 of the Charter allows for a waiver of immunities, exemptions, and privileges. DIPLOMATIC NOTE Khosrow Minucher v. Court of Appeals and Arthur W. Scalzo, Jr. G.R. N o . 97765, September 1992 Philippine Supreme Court Justice Hilario G. Davide, Jr.: FACTS: Khosrow Minucher, a labor attache of the Iranian embassy in Manila, met Arthur W. Scalzo, Jr., a member of the United States diplomatic mission in the Philippines and agent of the Drug Enforcement Agency (DEA), in 1966 thru a Filipino go-between. Scalzo was interested in Persian carpets and caviar supplied by Minucher, who, upon the other hand, wanted the American's intervention in the U.S. visa problem of his Iranian friend and countryman. The former got two sets of Persian carpets from Minucher w h o was paid $24,000 for the goods. Minucher, upon the other hand, gave $2,000 to Scalzo for the visa of his Iranian friend. With the help of U.S. and Filipino drug enforcement agents, Scalzo led the raid on Minucher's residence for alleged drug trafficking. The $24,000 paid by Scalzo for the carpets was seized during the raid. Minucher and his friend stayed at the military stockade for three days. When the case was filed with the Regional Trial Court (RTC), however, said court dismissed the charges againBt the two Iranians.

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Minucher, after acquittal in 1986, filed a civil case against Scalzo and wanted to recover the $24,000 for the carpets, the $2,000 for the visa, on top of P5.3 million in damages. Scalzo twice asked the trial court to give him more time to file his answer, claiming that his case was under study by the U.S. State Department and the Department of Justice. Meanwhile, Scalzo asked the RTC to dismiss the case, claiming immunity from suit as contained in a "diplomatic note" issued by the U.S. embassy in Manila on May 29, 1990. The diplomatic note attested that the acts of Scalzo in raiding the house of Minucher were in line with his official duties and functions and asserted the immunity from suit of its agent. The trial court denied the dismissal of the case. Henceforth, Scalzo took the case to the Court of Appeals which granted his plea. Minucher thus filed a petition before the Supreme Court. HELD: A mere diplomatic note from a foreign government attesting to the immunity from suit of its agent in the Philippines cannot extinguish the civil or criminal liability of such agent when sued in his personal capacity. While Scalzo claimed that the acts imputed to him were done in his official capacity, "nothing supports this self-serving claim other than the so-called 'diplomatic note."* Thus, while the American stated before the trial court that he would present documentary evidence consisting of records on investigation and surveillance to prove the charges he filed against the two Iranians, he failed to do as he said. [Nota Bene: With this ruling, the Supreme Court directed the Manila RTC to proceed with the civil case filed against Scalzo.] ABUSE OF DIPLOMATIC PRIVILEGES AND IMMUNITIES: THE UK EXPERIENCE There is generally good compliance with the law of diplomatic immunity because here, almost as in no other area of international law, the reciprocal benefits of compliance are visible and manifest. Virtually every State that is host to a foreign diplomatic mission will have its own embassy in the territory of the sending State. Every State wants its own diplomats operating abroad, and its own diplomatic bags, embassies and archives, to receive those

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425

protections that are provided by international law. Honoring those same obligations vis-a-vis the diplomatic community in one's own country is widely perceived as a major factor in ensuring that there is no erosion of the international law requirements on diplomatic privileges and immunities. (Rosalyn Higgins, "The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience," 79 AJIL 641). Sometimes abuses do arise. Thus, on April 17, 1984, an orderly demonstration was held by Libyan opponents of Colonel Qaddafi's Government, on the pavement in St. Jame's Square, London, opposite the People's Bureau. Both the Foreign Office in London and the British Ambassador in Tripoli had been warned the day before t h a t if the demonstration were to be allowed to go ahead, Libya "would not be responsible for its consequences." Shots were fired from the windows of the Bureau, killing Woman Police Constable Fletcher, who was on duty in the square. There was, as might be expected, general outrage at these events. The public and many legislators were clearly deeply disturbed that the international law of diplomatic immunity apparently prevented the Bureau from being entered, and those responsible from being arrested. More specifically, it was widely felt that diplomats acting in a way incompatible with their diplomatic status should not benefit from an immunity granted to assist the orderly conduct of diplomatic relations. It w a 6 suggested that some way should be found of searching diplomatic bags that were suspected of containing either drugs or weapons. And there was a widespread sentiment that premises which were a base for unlawful acts should not be accorded inviolability. It was argued variously that a proper interpretation of the Vienna Convention would support the view that immunity and inviolability fell away when diplomats and missions abused their position; but that if the Vienna Convention made these desirable outcomes impossible, then the Convention should be amended or denounced. (Ibid., pp. 643-645). More difficult was the issue whether security in the Btreets of London could and should be facilitated by changing the practice regarding demonstrations outside embassies. Unlike the United States and certain other States, the United Kingdom has no statutory requirement prohibiting demonstrations within a specified distance of diplomatic premises. The matter is simply dealt with by local acts allowing for the direction of routes of processions and demonstrations, the maintenance of order and prevention of ob-

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struetions, and the control of public order generally. There is no special power given to police commissioners in respect of offenses at or near diplomatic premises. Article 22 of the Vienna Convention on Diplomatic Relations, placeB on the receiving state "a special duty to prevent any disturbance of the peace of the mission an impairment of its dignity." Art. 22 (together with other articles) is given the force of law in the United Kingdom by the Diplomatic Privileges Act of 1964. Is the peace of the mission or the impairment of its dignity prevented by peaceful demonstrations in the immediate vicinity? Or is the better view that Article 22 is not meant to insulate the foreign mission from expressions of public opinion within the receiving State (provided always that there is free and safe access and egresB for the members of the mission, and no real fear of danger to mission staff or damage to the premises?) At the end of the day, terroristic abuse of diplomatic status can be controlled neither by moving demonstrations away from embassies nor by trying to amend the Vienna Convention. What is needed is close coordination between the various parts of government, and international security cooperation. Governments must keep themselves more fully informed than they have sometimes appeared to be in the past, and should not, for the sake of promoting trade or other reasons, seek to accommodate those who are reluctant to conform to the requirements of the Vienna Convention. Above all, those remedies available for abuse in the Convention — especially the power to limit the size of the mission, to declare a diplomat persona nnn-grata—should be used with firmness and vigor, and not just reserved for matters related to espionage. As is so often the case, legal means are at hand; but they need to be matched by political will. (Ibid., pp. 650-651).

Dickenson v. Del Solar 1 ( L B . 376 FACTS: As a result of a vehicular accident, the First Secretary of the Peruvian legation in London was sued. His diplomatic immunity was waived, but he asked that in case he would be ordered to pay t h e plaintiff, his insurer, the Mobile and General Insurance Co. Ltd. should be made to indemnify him. The Company claimed, among other defense, that the First Secretary was not legally liable to the plaintiff because of his diplomatic status, hence in no case should the Insurance Co. be held liable for indemnification.

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427

HELD: It is wrong to say that diplomats are legally immune from liability for wrongful acts: the accurate statement is that they are immune from suit (not liability). Now then, since the immunity from suit has been waived, the privilege can no longer be invoked. The Insurance Co. is, therefore, liable for the needed indemnification.

•ASYLUM The bright Of aaymmf is the authority of a State to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection. 18

There are two (2) species of asylum: X

W 'tetntarial asylum? (refuge within the territory of the sheltering Stale; the protUfllbn which a refugee obtains by escaping to, or remaining upon, the territory of a State other than the State that "wants" him, until the protection is terminated by his extradition. V

19

(2) exterritorial amylmp (asylum in what are considered the "extensions*~of-a GlaUs's LeTiitory). This type includes: (a)

asylum in foreign public ships;

(b) diplomatic asylum - the protection afforded by a State to a refugee by granting him an asylum in or upon its diplomatic buildings within the territory of the State that wants him. 30

Brief Historical Sketch of Asylum In ancient times, certain places gave sanctuary to those fleeing from persecution: these places in time began to embrace the whole of a city or a State. When these places were abolished, asylum seekers came to residences of diplomats, trusting in the inviolability of their domiciles. Sometimes, the entire quarter or district where the residence of the diplomat was located became 21

"See OppeDheim-Lauterpacht, Public International Law, Vol. I, p. 618. "McNair, Law on Treaties, Vol. I I , p. 67. "Ibid. " S e e Moore, A Digest of International Law, Vol. II, p 756.

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428

the place of immunity (franchise d'quartier). These quarters in the 18th century ceased to be places of refuge, but diplomatic a s y l u m ^ continued to exist." Traditionally, the right to grant asylum in any form has never been recognized as part of international law." This was also the stand of the United States in signing the Convention on Asylum in 1928; the country stated that it "does not recognize or subscribe to, as part of international law, the socalled doctrine of asylum.*'* Such "right" is not yet a "general principle of law" in the international legal order. 25

The Doctrine on Asylum Today The doctrine on asylum may be summarized in the following manner: (1) With reference to territorial asylum — the right of a State to grant asylum within its territory exists o n l y ^ l M l i il in us stipulated i a i ^ W B t f or when it is justified hytmWBaWtod usagm Of course, should a state rely on its "territorial supremacy" it can always justify the grant. 1

(2) With reference to diplomatic asylum - asylum may be granted only if: (a)

there is a treaty granting this right;

(b) established usage allows it but this should be confined "within its narrowest limits'; 26

(c) when the life, person, or liberty of the individual seeking is threatened by imminent violence. (In other words? there must be a compelling urgency for the grant; it is understood that the asylum should be temporary and should exist only for the duration of the emergency.) Philippine Rules on Asylum In the Philippines, diplomatic and consular officials have been instructed NOT to grant diplomatic asylum to persons other than M

S e e 2 Oppenheim, op. cit., p. 711. "Moore, op. cit., p. 764. "Hackworth, Digest of International Law. Vol. I I . p. 622. ^Oppenheim, op. cit., p. 677. "Satow, A Guide to Diplomatic Practice, p. 205.

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the members of the official or personal household. With reference to these non-members "the extension of refuge to persons outside the official or personal household of diplomatic or consular officers can only be justified (in the absence of a treaty) on H U M A N I T A R I A N GROUNDS. Diplomatic and consular officers may afford refuge to uninvited fugitives whose lives are in imminent danger from mob violence but only during the period when active danger continues. Refuge must be REFUSED to persons fleeing from the pursuit of the legitimate agent of the local government. In case such persons have been admitted, they must be either surrendered or dismissed from the mission or the consulate." 27

The Case of Alfredo B. Saulo Alfredo B. Saulo, former editor of the Star Reporter and alleged propaganda chief of the Huks in the Philippines sought on November 12, 1958 diplomatic asylum inside the Indonesian Chancery in Manila on the ground that under the Declaration of Human Rights — T. Every person has the right to seek and enjoy in other countries asylum from persecution; "2. The right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or for acts contrary to the purposes and principles of the United Nations." 28

Saulo incidentally had been accused in Philippine courts of the crime of rebellion, murder, arson, and robbery. He had gone into hiding in the mountain jungles sometime in 1950 and the government had been looking for him for about eight years. In his interview with reporters, Saulo made it clear that he was merely seeking political asylum under the Universal Declaration of Human Rights; and that, therefore, he was not surrendering to the Philippine authorities. Saulo also disclosed that some six months before (May, 1958) he had tried to seek asylum in the same chancery but Ambassador Nazir Datuk Pamontjak had rejected his offer; his presence, therefore, in the same place on Nov. 12, 1958 was the second time he sought asylum. The presence of Saulo at the 29

" N o t * 1, Foreign Service Regulations of the Philippines. "•Art, X I V , Declaration of Human Right. See the Daily Mirror. Nov. 12. 1958. m

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embassy was communicated to Secretary of Foreign Affairo (for the Philippines) Felixberto Serrano by the Indonesian Ambassador; the latter also informed the Secretary that he was awaiting appropriate instructions from his home government. The Secretary impressed upon the Ambassador that Saulo was a "fugitive from justice." While waiting for the decision of the Indonesian government on the request of Saulo, the Philippine authorities threw a cordon of policemen around the chancery to prevent any possible escape of the refugee. For security reasons, Saulo was later kept incommunicado in the embassy; after the car of the Times-Mirror Publications had driven out of the embassy grounds, the gates were closed by the guards, and no one was allowed to enter the premises. 30

31

On November 13, despite Philippine hopes that Saulo would be surrendered by the Indonesians in view of the information given by the Foreign Office, the Embassy continued to keep Saulo under its protective custody. Thereupon, Secretary Serrano formally demanded from the Ambassador either "the immediate delivery of the person of Saulo to the appropriate authorities of this (Philippine) Government or . . . to aBk Saulo to leave forthwith the premises of the chancery of your (Indonesian) Embassy." The Secretary assured the public that the dignity and inviolability of the embassy and of the Ambassador would be fully respected in accordance with international diplomatic procedure. Meanwhile, the Senate thru its committee on national defense and security commented that neither Saulo had the right to be given, nor the Indonesian Embassy the right to give, diplomatic asylum because (1) there was no persecution, (2) there was no imminent danger to Saulo's life, and (3) there was lacking that sense of urgency and gravity which may in very exceptional cases accord jurisdiction for the right of aBylum. Justice Secretary Jesus Barrera endorsed the view of the Department of Foreign Affairs that the Indonesian Embassy could not legally extend Saulo political asylum but must turn him over to the Philippine government as a "wanted fugitive from justice." Barrera said that for a person to properly claim diplomatic asylum, three conditions must co-exist: 32

"Trivado Jimenez, Journal, Vol. V I , No. 4, The Daily Mirror, "The Daily Mirror. il

T h e Right of Diplomatic Asylum," Far Eastern Law January, 1S69, p. 441. Nov. 12, 1956. Nov. 13, 1966.

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431

that he is being prosecuted for a political offense; that he is in danger of losing life or limb if released; and that the courts of the land are corrupt. Not one of these requisites is present, he said.

33

Press dispatches from Djakarta quoted Indonesian Deputy Prime Minister Hardi, who was then acting as the Foreign Minister, as saying that the "Saulo Issue is to our (Indonesian) government an incentive towards the significance of having an extradition treaty between the Philippines and Indonesia." Sensing an undertone of pressure for the formulation of a treaty of extradition before Indonesia would release Saulo, the Secretary told the Indonesian ambassador on November 14, 1958 that "any consideration of an extradition treaty can by no means be connected with the resolution of the Saulo case." The problem, the Secretary stressed, Bhould be settled in light of accepted usages of nations. The Secretary continued that Saulo could not be entitled to diplomatic asylum because of the absence of a treaty on asylum between the Philippines and Indonesia. Even assuming the existence of such treaty, he pointed out, there were still certain requirements to be fulfilled before the right could be validly granted, namely, that the offense for which the asylum was sought be political and that there was a great urgency for the grant. Saulo was accused of non-political crimes and his life was never in imminent danger. Evidently, the Secretary was basing his stand on the court opinion in the Haya de la Torre Case on Asylum by the International Court of Justice. * 34

3

The Indonesian Embassy, however, did not immediately release Saulo. R. Hardajo, Indonesian press attache, stated that his government was standing firm on its terms (as submitted to our Foreign Office): The international prestige of Indonesia was at stake; therefore, any settlement should be in keeping with the Bandung Conference of 1954 (the Conference or several Afro-Asian Nations held at Bandung for mutual assistance and for the amicable settlement of any dispute); therefore, also, any such settlement must take into account the prompt determination of similar cases in the future. 36

" T n « Manila Times, Nov. 16, 1958. Jimenez, op. cit., p. 442. "Judgment oT Nov. 20, 1950. "See the Daily Mirror, Nov. 17. 1958. u

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Several days later (November 18, 1968), the Embassy turned Saulo over to Philippine authorities: it must have been convinced of the logic of the Philippine position on the matter; moreover it was intensely desirable for friendship between the two countries to continue. Was the stand of the Philippines internationally justifiable? It is submitted that it was. (1)

On the part of the refugee — (Saulo)

It is clear that Saulo had no right to ask for asylum firstly because the Declaration of Human Rights speaks of a "persecution" which is absent in the instant case; secondly, because he was being prosecuted principally for ordinary crimes; thirdly because even if he had been embraced by such Declaration (prosecution for rebellion, inter alia, being really political) still the Declaration does NOT automatically grant "legal rights": at most the Universal Declaration of Human Rights contains nothing more than a mere recommendation or a common standard of achievement for all peoples and all nations. Indeed the logical question is not whether Saulo had the right to ask for asylum but whether the Indonesian Embassy had the right to grant it. 37

38

(2) On the part of the place of refuge (Indonesian Embassy). The Embassy could not grant diplomatic asylum to Saulo because: (a) no treaty on the matter exists between the Philippines and Indonesia; (b) there is no custom on this point sanctioned by "established usage between the two countries involved"; (c) there was no urgency for all because the life of Saulo was never in imminent danger; (d) this "right" has never been considered a general principle of law in the international legal order. Indeed, the father of International Law: Hugo Grotius has said: "Whether the ambassador's house was to be an asylum for all who took refuge there, depended upon the convenience of the sovereign near where he resided, since it was not a part of the law of 38

3,

Sec. par. 2, Art. X I V . Universal Declaration of Human Rights. '"See lehong v. Hernandez, L-7995. May 31. 1957. See Oppenheim, op. cit., p. 677.

Jfl

THE FIFTH F U N D A M E N T A L RIGHT: THE RIGHT OF LEGATION OR OP DIPLOMATIC INTERCOURSE

nations."*" The following modern authors, inter alia, agree with Grotius: Wheaton, Hall, Fenwick, Hyde, Kelsen, PradiereFodere, McNair, Satow, et al. The envoy, however, may on humanitarian grounds grant temporary asylum to persons in imminent peril of their lives such as those fleeing from mob violence* or "against the violent and disorderly action of irresponsible sections of the population."* While it may be conceded that an envoy need not deny entrance to criminals or accused persons desiring to take refuge in an embassy or legation, apart from any treaty or established usage to the contrary, he must surrender them to the government of the receiving State at its request. If he refuses, any measure may be taken to induce him to do so, short of such would involve an attack on his person. The embassy or legation may be surrounded by police authorities, and eventually the criminal may even be forcibly taken out of the embassy or legation. However, such measures of force are justifiable only if the case is an urgent one, and after the envoy has been in vain requested to surrender the criminal.* Principles of international law "do not recognize any right of unilateral and definitive qualification by the State granting diplomatic asylum."** 1

2

3

Haya de la Torre Case International Court of Justice Reports, 1950, p. 274 FACTS: A Peruvian national, Haya de la Torre, a political leader accused of having instigated a military rebellion in Peru sought, and was granted, diplomatic asylum in the Colombian Embassy at Lima on January 3, 1949. The refuge was sought and granted three months after the suppression of the military rebellion. The 192B Pan-American Havana Convention on Asylum (to which both States, Peru and Columbia, were signatories) had laid down the rule that subject

*"Quoled in Moore, A Digest of International Law. Vol. II, p. 711. "Ibid. '"Jimenez, op. cit., p. 439. "Oppenheim, op. cit., p. 797. "Haya de la Torre Case, International Court of Juatice Re porta, 1950. p.

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434

to certain conditions, asylum could be granted in a foreign embassy to a political offender, a national of the territorial State. Peru and Colombia agreed to submit to the International Court of Juetice their dispute on the following reasons: (1) Was Colombia, as the State granting the asylum, entitled unilaterally to "qualify" the offense committed by the refugee in a manner binding on Peru? (2) Was Peru required to afford guarantees to enable the refugee to leave the country in safety? (3)

Was the grant of diplomatic asylum proper?

HELD: In its judgment of November 20, 1950, the Court held that: (1) Colombia cannot unilaterally make the qualification: both countries must concur on whether or not the offense involved allowed asylum. (NOTE: The Court, however, said on this point that Peru was not able to prove that Haya de la Torre was a common criminal.) (2) Peru is not required to afford guarantees to enable the refugee to leave the country safely. (3) The grant of diplomatic asylum is I M P R O P E R because the "urgency" prescribed by the Havana Convention did not exist: the rebellion had been suppressed three months previously. The essential justification of asylum lies in the imminence or persistence of a danger to the person of the refugee. Second P a r t of the Case FACTS: On the same day the abovementioned judgment was rendered, Colombia filed a request for an interpretation: does the judgment mean that the Colombian authorities ought to surrender the refugee to Peruvian officials? HELD: In its judgment of Nov. 27, 1950, the Court said that the question raised by Colombia was a new question; and it had not been previously presented in the preceding case; and that, therefore, the Court could not decide upon it by way of a mere interpretation. The Court further pointed

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435

out that a request for interpretation could only be founded on a dispute between the parties concerning the meaning of the judgment, which dispute could not possibly have arisen as yet because the request for interpretation had been submitted on the very same day as the delivery of the previous judgment.The Court, thereupon, dismissed the Colombian request for interpretation. The Third Part of the Case FACTS: Because of the seemingly favorable judgment in its favor, Peru called upon Colombia to surrender Haya de la Torre. Colombia refused, maintaining that neither the applicable legal provisions nor the Court's judgment placed her under an obligation to surrender the refugee to the authorities of Peru. HELD: In its judgment of June 13, 1951, the Court upheld the refusal of Colombia. It declared that the question was a new one, and that although the Havana Convention expressly prescribed the surrender of common criminals to the local authorities, NO O B L I G A T I O N of this kind existed in regard to political offenders. While this judgment confirmed the earlier ruling that asylum had been irregularly granted, and that on this ground Peru was entitled to demand its termination, the Court, nevertheless, said that Colombia was not bound to surrender the refugee. The Court also said that there are ways other than surrender of the refugee with which to effect the termination of the asylum. Other Important Instances of Asylum: (1) General Juan Domingo Peron, stormy Dictator-President of Argentina for ten years was forced by an insurrection to ask for diplomatic asylum in the Paraguayan Embassy in Argentina on Sept. 16, 1955. He was in mortal fear of his life. He was allowed to stay in the Embassy; from there, he was conveyed to a Paraguayan gunboat in the harbor of Buenos Aires. He was eventually flown to Paraguay, after Bucceesful negotiations for a safe-conduct pass. While enjoying "territorial political asylum" in Asuncion, Paraguay, Peron issued a statement to the effect that he was still "constitutional president" of Argentina, since he had never resigned from such office. The Argentine Foreign Ministry then accused

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436

Paraguay of not living up to its responsibilities under the Asylum Convention: the Ministry said that Paraguay should have prevented Peron from making the statement. The President of Paraguay denied the accusation.** Peron to avoid further trouble enplaned for Nicaragua whose President, Senor Anastacio Somoza, later commented: "Peron is perfectly free to come to Nicaragua. As a matter of fact the doors of Nicaragua are open to all citizens of the Americas provided they are not criminals or communists."** Peron then stayed for eight months in Panama with a residence permit as a "political refugee; from there he went to Venezuela, and thence to the Dominican Republic, where he was given permission to remain indefinitely. Argentina accused the Dominican Republic of allowing Peron to continue his political broadsides against Argentina; when the Dominican Republic countered by expelling the Argentine envoy (he, the envoy, was ordered to leave in 24 hours), Argentina suspended diplomatic relations with the country of asylum.* Aside from Person, several other Argentines have left their homeland. Among them was Sehor Miguel Revestido, First Minister and former Central Bank President. Revestido was granted diplomatic asylum in the Chilean Embassy in Buenos Aires, and later, was given a safe-conduct pass by the new Argentine government to go to Chile." 7

(2) Jozsef Cardinal Mindszenty, Prince Primate of Hungary, was a strong spiritual leader of his country who was tried by the Hungarian Communist Government for allegedly plotting to overthrow the Government. Found guilty in a trumped-up trial (February 2-8, 1949) wherein British and American observers were refused permission to witness, he was fortunately freed by Hungarian Freedom Fighters during the Hungarian uprising of 1956. Because the revolt was short-lived, the Cardinal, to avoid death, sought and was granted diplomatic asylum in the American Legation in Budapest on November 4,1956." (NOTE: In its 8th resolution or February 12, 1946 the General Assembly expressed the view that except in the case of war criminals and traitors, political refugees cannot be compelled to "See The Daily Mirror, Oct. 4 and 7, 1955. "Daily Mirror, Nov. 3, 1955. "See The Manila Times, April 12, 1956. " S e e Estrada, "The Right of Asylum in International Law," I.E. Law Journal, Vol. I I , No. 2. April, 1960, p. 183. *'Se* The Daily Mirror, Nov. 5, 1957.

THE FIFTH FUNDAMENTAL RIGHT: THE RIGHT OF LEGATION OR OF DIPLOMATIC INTERCOURSE

return to their countries of origin. International agreements govern the case of war criminals and traitors.) O WHOM DIPLOMATIC IMMUNITY IS GRANTED . Diplomatic immunity is generally given not only to the diplomatic official concerned but also to> (1) his personal retinue —.members of his family, including dependpnt relatives who live with him; (2) his official retinue —/this includes the counsellors, secretaries, attaches, clerical and administrative personnel; (3) hiB household retinue — like domestic servants provided that the names of the servants have been transmitted to the Office of the Chief of Police of Manila (thru the Department of Foreign Affairs). The transmittal must be before service of judicial process.

50

(NOTE: Filipino citizens and inhabitants who are in the service of foreign diplomatic missions are also granted diplomatic immunity provided the registration hereinabove referred to has been complied with, EXCEPT in the case of civil debts contracted P R I O R to entry into the service)"" CAUSES FOR THE TERMINATION OF A diplomatic mission may come to an end thru any of the following causes: ^ r f * death of the envoy; , ;Wf~ recall — (by his own home government which sends a "letter of recall" (lettre de recreance); (3L- dismissal — by the receiving foreign State (here, the envey may have become persona non grata). Examples: i&r dismissal of the British minister in 1888 for alleged interference in Presidential elections. 606

" S e e Sec. 5. Rep. Act No. •"•Ibid "••Hershey, p. 203.

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438

(b) dismissal of the Spanish ambassador by Cuban Premier Fidel Castro Tor allegedly insulting the latter in Havana (I960). (c) dismissal (here, there was also a recall) of the Cuban ambassador from the Philippines for alleged subversive activities (1961). [NOTE:: "The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the Bending State shall, as appropriate, either recall the person concerned, or terminate his functions with the mission. A person may be declared non grata or not acceptable, before arriving in the territory of the receiving State. If the Bending State refuses or fails to carry out the aforesaid obligation, the receiving State may refuse to recognize the person concerned as a member of the mission." (Art. 9, Nos. I and 2, Vienna Diplomatic Convention of 1961).] (4) rupture or disruption of diplomatic relations (this may be brought about by diplomatic differences, e.g., disruption in 1960 of Cuban-U.S. and in 1961 of Cuban Philippine diplomatic relations; rupture of diplomatic relations in March, 1980, between the U.S. and Iran because of the illegal detention of American hostages by militant Iranian students at the American Embassy at Iran; cancellation of diplomatic relations in April, 1980 between Egypt, and other Arabian countries which held a summit conference against the peace treaty concluded between Egypt and Israel, with the help of President Jimmy Carter of the U.S. (5) outbreak of war between the two States involved; (6) revolutionary change of government in the sending or in the receiving State; (7) constitutional changes in the leadership of the sending or receiving State, as in the case of the death, abdication, or dethronement of the Head of State by whom or to whom the diplomatic representatives has been accredited; (8)

extinction of the sending or receiving State;

(9) accomplishment or non-accomplishment of the mission in instances where it has a SPECIAL or temporary nature;

THE FIFTH F U N D E M A N T A L RIGHT: THE RIGHT OF LEGATION OR OF DIPLOMATIC INTERCOURSE

(10) expiration of the letter of credence (if only a limited duration had therein been specified); (11) change in rank or class such as a promotion to a higher class of the envoy concerned. 51

HMMUNmES OF OFFICIALS OF INTERNATIONAL ORGANIZATIONS AND OF DELEGATES TO INTERNATIONAL CONFERENCES Art. 105, par. 2 of the UN CHARTER says: "Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their function in connection with the Organization." The Organization itself is referred to in Art. 105, par. 2 of the same Charter: "The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes." Mendaro v. World Bank 717 F.2d 610 (U.S. Court of Appeals, D.C. Cir., Sept. 27, 1983) Appellant, SuBana Mendaro, brought, suit against her former employer, the International Bank for Reconstruction and Development (also known as the World Bank) in federal court under Title V I I of the Civil Rights Act of 1964, alleging various employment-related grievances. The district court dismissed her action on the ground that the Bank's Articles of Agreement did not, as appellant had argued, waive the Bank immunity from suit as granted by the International Organizations Immunities Act ("the Act"). The U.S. Court of Appeals for the District of Columbia Circuit affirmed, holding: that the waiver clause in the Bank's Articles of Agreement extended only to the Bank's external activities and contracts and not to the internal administration of its employees.

6 1

See Oppenhnm. op. eit, pp. 728-733.

440

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The Act confers juridical status on and grants immunity to those international organizations in which the United States participates as entitled to enjoy the provisions of the Act. The Bank satisfies both of these prerequisites. Section 2(b) of the Act sets forth the privileges enjoyed by qualified organizations. "International organizations shall enjoy the same immunity from suit and every form of judicial process as may expressly waive their immunity for the purpose of any proceedings or in the terms of any contract." Appellant maintained that the Bank had waived its immunity with respect to appellant's suit by adopting Article V I I I , section 3 of the Bank's Articles of Agreement, which states in pertinent part: Actions may be brought against the Bank only in a court of competent jurisdiction. No action shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank. In appellant's view, the only instances in which the Bank was immune were the two set forth in Article V I I I , section 3: (1) in suits by members, and (2) in actions seeking prejudgment attachments of Bank assets. If the Bank had wished to preserve other immunities, appellant contended, it could have done so expressly. The court, however, disagreed and declined to construe the provision broadly. Given the "somewhat clumsy and inartfully drafted language" of the waiver provision, the court found it necessary to examine "the interrelationship between the functions of the Bank set forth in the Articles of Agreement and the underlying purposes of international immunities." The fundamental rationale for any international organization's waiver of immunity, the court observed, is that it might better achieve its chartered objectives. This principle was expressly recognized in the Bank's Articles: the purpose of the waiver provision is "[t)o enable the Bank's to fulfill the functions with which it is entrusted." Thus, the question for the court was whether a waiver of immunity from suits by employees alleging labor grievances under the local laws of the many States in which the Bank does business would better enable the Bank to achieve its basic purposes.

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441

The Articles of Agreement establish that the Bank's goals are to assist its member nations to develop their territories, promote and supplement foreign investment, and promote long-range, balance growth in international trade. The court observed that while amenability to suits by debtors, creditors, bondholders and others similarly situated might be necessary to ensure the marketability of the Bank's securities, employee actions premised on internal administrative grievances would expose the Bank to disruptive interference in its employment practices in each of the 140 countries where it does business. Noting that international treaty and customary law are in accord, the court adopted the reasoning it had employed in in one case involving similar employee action alleging breach of employment contract against another international organization. In that case, the court had held that immunity from employee actions is necessary to protect international organizations from unilateral control by a member nation over the activities of the organization within its territories. The United States has accepted without qualification the principles that international organizations must be free to perform their functions and that no member-State may take action to hinder the organization. The unique nature of the international civil service is relevant. An attempt by the courts of one nation to adjudicate the personnel claims of international civil servants would entangle those courts in the internal administration of those organizations. Denial of immunity opens the door to divided decisions of the courts of different member-States passing judgment on the rules, regulations and decisions of the international bodies. Undercutting uniformity in the application of staff rules or regulations would undermine the ability of the organization to function effectively. Thus, the court held, although the Bank has waived its immunity with respect to actions arising out of its external relations with debts and creditors, it has not waived immunity with respect to suits arising out of its internal operations. Officials of International Organizations: As earlier indicated, officials of international organizations like the U N , enjoy diplomatic privileges and immunities so that they may have a free and independent exercise of their functions.

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442

The judges of the International Court of Justice are given the same rights." These officials do not act in the interest of their particular State; they represent all the States included in the organization; consequently, they enjoy the following privileges and immunities: (1) personal immunity from legal process with reference to official acts; (2) the U N ;

income tax exemption with reference to salaries paid by

(3) right to import, free from customs duties, their furniture and effects; (4) immunity from immigration restrictions and alien registration (this is also given their families and dependent relatives); (5)

immunity from national service obligations;

(6)

right of repatriation facilities during international crises;

(7)

right of exchange and currency facilities.

and

NOTE: These immunities and rights may be waived and should be waived by the Secretary-General of the UN provided that the waiver: (a)

would facilitate justice A N D

(b)

UN interests would not be jeopardized.

NOTE: As will be observed, these officials may be arrested should they commit crimes. The only persons exempted in this matter are the UN Secretary-General, the UN Assistant SecretaryGeneral, their wives, and minor children — all of whom are accorded all the privileges and immunities also given to diplomatic envoys. It is the Security Council itself that may waive their immunities. M

In World Health Organization and Dr. Leonce Verstuyft v. Hon. Benjamin H Aquino, et al., L-35131, Nov. 29,1972 (48 SCRA 251), the Supreme Court, thru Mr. Justice Claudio Teehankee

"Art. 19, Statute of the International Court of Justice. S t e the General Convention on the Privileges and Immunities of the United Nations. u

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443

(later to become Chief Justice and Permanent Philippine Representative to the U N ) ruled that pursuant to the Host Agreement executed on July 22, 1951 between the Philippine Government and the World Health Organization, an officer of such Organization assigned in Manila as Acting Assistant Director of Health Service is entitled to diplomatic immunity, and as such a search warrant for the search and seizure of his personal effects cannot be lawfully issued. In the same case, it was also ruled that: (1) It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity iB essentially a P O L I T I C A L QUESTION, and courts should refuse to look beyond a determination by the executive branch of the government. (See Trost v. Tompkins, 44 A.2b 226); and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government (the Department or Ministry of Foreign Affairs, for instance), it is the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law office of the Government, the Solicitor-General in this case, or some other officer acting under his direction. (See Ins. Co. 24 N.E. 2d 81, 281 N.Y. 362). (2) It is settled principle that courts may not exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations. (3) Assuming that the official concerned really abused diplomatic immunity by bringing into our country 120 bottles of wine, the proper remedy is to conduct consultations between our government (thru the Department of Foreign Affairs) and the United Nations Agency (the WHO). What the judge in this case should have done was to quash the Bearch warrant previously issued, and to forward his findings to the Department of Foreign Affairs. Representatives of UN members and UN delegates to International Conferences During their journey to international conferences, while the conferences are going on, and during the journey home, representatives of UN members and UN delegates to said conferences enjoy the following privileges and immunities: (1)

i m m u n i t y from personal arrest and detention;

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(2)

immunity from seizure of personal baggage;

(3) immunity from legal process of every kind in respect of words spoken or written, and all acts by them in their capacity as representatives; (4)

inviolability for all papers and documents;

(5) the right to use codes and to receive papers and correspondence by courier or in sealed bags; (6) exemption of themselves and their spouses from immigration restrictions, alien registration, or national service obligations in the State' they are visiting or thru which they in the exercise of their functions, pass; (7) the same immunities and facilities with respect to their personal baggage as are given to diplomatic envoys; (8) the same facilities in connection with exchange or currency restrictions as are allowed representatives of foreign governments on temporary official missions; (9) other privileges and immunities of diplomatic envoys, not inconsistent with the foregoing, except: (a)

exemption from excise duties;

(b)

exemption from sales taxes; and

(c) exemption from customs duties on imported goods (otherwise than as part of their personal baggage)."

^/CONSULAR OFFICIALS In a broad sense, a consul is a commercial agent appointed by his Government to reside in a foreign city, and permitted by the foreign State to do so in order that he may watch over the commercial rights and privileges of his own country therein, and thus protect the rights of his country's nationals. 55

As to character, consuls are of two (2) kinds: the consules missi (consuls de carriere) (consuls of ca-

" A r t . IV, Sec. 11, Convention on the Privileges and Immunities of the United Nations, February 13, 1946. (Note: The Philippine* ia a signatory hereto.) S e e Wilson and Tucker, International Law, p. 198. M

THE FIFTH FUNDAMENTAL RIGHT: THE RIGHT OF LEGATION OR OF DIPLOMATIC INTERCOURSE

reer) — theBe a r e professional consuls; as such, they are not allowed to engage in any other profession or business; and (2> the consules electi (honorary or commercial consuls) — these are those selected by the appointing Government either from its own citizens engaged in business in the country in which they will be allowed to exercise consular functions, or from among the nationals of the foreign State involved. Regarding appointment, rank, and qualifications, it may be said that these are matters of municipal law (consequently, not properly a part of international law); traditionally, however, States rank their consular officials in the following manner: y ( ) consul-general-— he heads several consular districts, or one exceptionally large consular district; (2) port;' I)

consul — he takes charge of a small district or town or vice-consul — he assists the consul; and

JA) consular agent — he usually is entrusted with the performance of certain functions of the consul. (NJ0TE: A pro consul is not really a conBul but one who takes the place of a consul in the hitter's absence or temporary incapacity; in short, he is a locum tenens. x

Two (2) important documents are necessary before the assumption of consular functions can be undertaken: ^ • t l ) the letters patent (lettre de provision) — this is the letter of appointment or commission which is transmitted by the sending State to the Secretary of Foreign Affairs of the country in which the consul is to serve. 51

y0t the exequator — this is the authorization given by the sovereign of the receiving Slate to the consul, allowing him to exercise his functions within the territory. The exequator may be granted conditionally; the grant may even be refused for any or no reason; once granted, the exequator may be unilaterally withdrawn. 58

" S e e Feowick, International Law, p. 363. " S e e Oppenheim, op. cit., 659. "See Lawrence, Principle* of International Law, p. 297.

I N T E R N A T I O N A L L A W A N D W O R L D POLITICS

(NOTE: The exequator should not be confused with the letter of credence; the firBt is given to a consul by the receiving State; the second is issued to a diplomat by the sending or accrediting State; the grant of an exequator is an ordinary or routine affair, while the presentation of a letter of credence is usually accompanied by pompous ceremonies.) 59

FUNCTIONS OF CONSULAR OFFICERS A consul has such functions as may be stated in a pertinent treaty, allowed by international usage, and provided by hiB national law: generally, they are commercial, routinary, and administrative in character. For instance, he issues visas (permits to visit his country) as contradistinguished from passports (permits to leave the country, and which are usually issued by the Department of Foreign Affairs). Art. 75 of the Family Code of the Philippines provides that any consul-general, consul or vice-consul of the Philippines may act as solemnizing officer in the case of marriages between Filipino citizens abroad. As spelled out under the 1963 Vienna Convention on Consular Relations, the consular functions are described in general terms: (1) Protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law. (2) Furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving relations between them in accordance with the provisions of the Convention. (3) Ascertaining, by all lawful means, conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested. (4) Issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State.

w

S e e Penwick, International Law, p. 384.

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447

(5) Helping and assisting nationals, both individuals and bodies corporate, of the sending State. (6) Acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State. (7) Safeguarding the interests of nationals, both individuals and bodies corporate of the Bending State in cases of succession mortis causa in the territory of the receiving State, in accordance w i t h the laws and regulations of the receiving State. (8) Safeguarding within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons. (9) Subject to the practices and procedures in force in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defense of their rights and interests. (10) Transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such agreements, in any other manner compatible with the laws and regulations of the receiving State. (11) Exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in reBpect of their crews. (12) Extending assistance to vessels and aircraft mentioned in (11) above and to their crewB, taking statements regarding the voyage of a vessel, examining and stamping the ship's papers, and without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred

448

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during the voyage, and settling disputes of any kind between the master, the officers and the seamen insofar as this may be authorized by the U W B and regulations of the sending State. (13) Performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State. By way of a comment. Director R.G. Feltham of the Foreign Service Programme of Oxford University, says: T h e s e (consular] functions I listed hereinabove] may, with the consent of all governments concerned, be exercised by a consular officer on behalf of a third State. It will be noted that in a substantial number of cases the right to act is not absolute, but dependent on the law of the receiving State. Also, despite the quasi-legal nature of many of his functions, a consul is not a substitute for a lawyer or other specialist. "A consular officer whose government has no diplomatic representative in the State in which he is serving and is not represented diplomatically by a third State may, with the authority of his host State, and without affecting his consular status, be authori[z]ed to perform certain diplomatic acts, including the representation of his State at intergovernmental organisations." (Feltham, Diplomatic Handbook [London: Longman, 1986, p. 51]). (NOTA BENE: More detailed provisions are included in many bilateral conventions, and a comprehensive outline of consular functions may be found in the Council of Europe, European Convention on Consular Functions.). CONSULAR PRIVILEGES AND IMMUNITIES Generally, unless £ney~are* a1sd*giVen some diplomatic functions, consuls are not entitled to diplomatic immunity. However, they are granted such privileges and immunities as may be essential for the proper performance of their consular duties. For instance: 60

" U . S . v. Wong Kim Ark., 167 U.S. 649.

THE FIFTH FUNDAMENTAL RIGHT: THE RIGHT OF LEGATION OR OF DIPLOMATIC INTERCOURSE

449

(1) they are allowed freedom of communication in cipher or otherwise; (2) they are exempted from testifying on official communications or on matters pertaining to consular functions; (3) they are exempt from military service or from jury and militia service; (4) they are permitted to place above the outside entrance of the consulate the arms of their country and to display their national flag; 61

(5) they are entitled to "special protection and consideration" but not immunity in police and penal law except in M I N O R offenses. 62

63

NOTE: For grave legal infractions, like the commission of the crime of concubinage, consuls are NOT exempt from criminal and civil prosecution. Similarly, an honorary consul of Uruguay at Manila may properly be charged in the Manila Court of First Instance (now Regional Trial Court) with the crime of falsification of a private document. It should be borne in mind, however, that in the absence of a treaty stipulation: 64

65

(1) consulates are required to accept service of legal processes provided due consideration i6 given to the official position of the consular officials. 66

(2) the rules for the grant of consular asylum are identical with those for diplomatic asylum. ' 6

[NOTE: Under the Vienna Convention on Consular Relations — signed at Vienna, April 24, 1963, and already ratified by the Philippine Government —

6

'See Hershey. pp. 303-305. Mexico, v. U.S. — United States — Mexican Claims Commission. 1927, p 254. "See Wilson and Tucker, op. cit., pp. 180-181. "People v. Schneckenburger, 73 Phil. 413. ^Schneckenburger v. Judge Moran, 63 Phil. 249. "See Hackworth, Digest of International Law, Vol. IV. p. 714. * See Note No. 1, Foreign Service Regulations of the Philippines. f2

;

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450

(1) Consular officers shall not be liable to arrest or detention pending trial, except in the case of a g r a f e crime and pursuant to a decision of the competent judicial authority. 48

(2) Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. This immunity shall not, however, apply in respect of a civil action either: (a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or (b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel, or aircraft. 89

(3) However, members of a consular post (consulate-general, consulate, or consular agency) may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or member of the service staff shall not decline to give evidence except in the following: matters connected with the exercise of their functions, or the production of official correspondence and documents relating thereto, or as expert witnesses with regard to the law of the sending State. Even in matters where he is required to give evidence, no coercive measure or penalty may be applied to him, should he decline to give evidence. The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing. (Art. 44, Nos. 1, 2, 3, Vienna Convention on Consular Relations of April 24, 1963). (4) Waiver of privileges and immunities may be waived, but must generally be express, and communicated to the receiving State in writing. (Art. 45, see Nos. 1, 2, and 3, op. cit). (5) Waiver of immunity from jurisdiction shall not imply waiver from execution, for which a separate waiver shall be necessary. (Art. 45, No. 4, op. cit.)].

" A r t . 41. No. 1. Art 43, Nos. 1 and 2. 651

THE FIFTH F U N D E H A N T A L RIGHT: THE RIGHT OF LEGATION OR OF DIPLOMATIC INTERCOURSE

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U.S. v. Iran I.C.J. Reports 1980, p. 3 FACTS: On November 4, 1979, several hundred Iranian students and other demonstrators took possession of the United States Embassy in Tehran by force. They did so in protest at the admission of the deposed Shah of Iran into the United States for medical treatment. The demonstrators were not opposed by the Iranian security forces who "simply disappeared from the scene." United States consulates elsewhere in Iran were similarly occupied. The demonstrators were still in occupation' when the present judgment was given. They had seized archives and documents and continued to hold 52 United States nationals. (Women and black people had been released.) Fifty were diplomatic or consular staff; two were private citizens. In an earlier judgment, the Court had indicated interim measures at the request of the United States. In the present judgment, the Court ruled on the United States request for a declaration that Iran had infringed a number of treaties, including the 1961 and 1963 Vienna Conventions of Diplomatic and Consular Relations, respectively. It also asked for a declaration calling for the release of the hostages, the evacuation of the Embassy and consulates, the punishment of the persons responsible, and the payment of reparation. In April 1980, while the case was pending, United States military forces entered Iran by air and landed in a remote desert area in the course of an attempt to rescue the hostages. The attempt was abandoned because of equipment failure. United States military personnel were killed in an air collision as the units withdrew. No injury was done to Iranian nationals or property. HELD: The Islamic Republic of Iran has violated obligations owed by it to the United States of America under international conventions in force between the two countries, as well as under long-established rules of general international law. The Court also decided that Iran "must immediately take all steps to redress the situation resulting from the events of November 4, 1979," including the release of the hostages and the return of the premises, documents, etc., to the United States and that Iran was "under an obligation to make reparation" to the United States. Iran, which had declined to participate in the proceedings, did not comply with the Court's

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judgment in any respect. The hostages were ultimately released in January 1981 as a result of a negotiated settlement with the United States. ^ r f t f l N A T I O N OF CONSULAR FUNCTIONS The following causes, inter alia, tions: (L)

terminate consular func-

death of the consular official;

(2f recall or dismissal of the consul; £3)

withdrawal of the exequator;

(4)

outbreak of war between the two States involved;

( W " expiration of the period of appointment (if such period had been specified); and j.fff

disruption of consular relations. — oOo —

Chapter 10 ANTECEDENTS TO RIGHTS: RECOGNITION, STATE CONTINUITY AND STATE SUCCESSION

INTRODUCTION We have just discussed the most fundamental of the rights of States: before said rights are recognized, however, in the international legal order, the following would seem lo be the requisite antecedents: (1)

recognition of the States and governments concerned;

(2)

recognition of the principle of state continuity; and

(3)

recognition of the principle of State succession.

R E C O G N m O N OF STATES AND GOVERNMENTS Schools of Thought: There are two (2) schools of thought on the recognition of States: (1) the legal or constitutive school — according to this school, as long as a political unit possesses all the elements needed for a State, other States are duty bound to recognize the former. Otherwise stated, the unit concerned has a "legal right" to be recognized as a State. (2) the political or declaratory school of thought — adherents of this view aver that even if a political unit seemingly possesses the ordinary constituent elements of a State, still foreign countries are al liberty to either grant or withhold such recognition. In short, the act of recognition, being political in color, ought 453

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1

to be discretionary Tor the other StateB concerned. It seems that today the latter school of thought has the upper hand; Tor instance, alter all these yeara, China has refused to recognize Taiwan as a State and instead treats it as one of its provinces. (See Manila Bulletin, Sept. 28, 1993, p. 3).

RECOGNITION DEFINED AND DISTINGUISHED FROM COGNITION AND COGNIZANCE Prof. D. P. O'Connell in his massive treatise (International Law, Vol. 1, 1965, p. 179), states that: "Recognition is a political act of the executive branch of government, wherein acknowledgement of the claims to governmental authority of foreign entities is made, A N D the legal consequences flowing from such acknowledgment is admitted. It is to be distinguished from cognition, which is a mere noting of the facts on which the relevant claims are based, and cognizance, which is an acknowledgment of those facts by the legislative or judicial branches of governments not involving executive admission of the legal consequences." ( N O T E : — The three — cognition, cognizance, and recognition — are not necessarily in the order given, e.g., recognition by the executive may come ahead of cognizance by the courts).

KINDS OF RECOGNITION From the viewpoint of whether or not strings have been attached to the recognition, it may be unconditional or conditional. Example of condition recognition: that given to Bulgaria and Rumania at the Congress of Berlin (1878). The condition was for them to grant religious freedom to their people. From the number of States recognizing, it may be individual or collective recognition. Example of collective recognition: that given to Austria by the Allied and Associated Powers.

'See Wilson. Handbook of International Law. Sec. 10: Brierly. The Law of Nations, p. 124.

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(1) forms of express recognition (a bipartite treaty between the two States involved; a public announcement; telegrams, cablegrams, facsimile [fax messages]) (2) forms of implied recognition (formal diplomatic relations; grant of an exequator to a consul).* NOTE: The following do not constitute recognition, whether express or implied: debates in the UN conferences between Philippine and Russian delegates; participation in a multipartite as distinguished from a bipartite treaty; a request for a grant of extradition. 3

4

QUERY In the Philippines, in whom is the power of recognizing a foreign State or government vested? ANSWER: The power of recognizing a foreign State or government is, by constitutional implication, vested in the President of the Philippines. Reasons: (1) The President is empowered to appoint and receive ambassadors and public ministers of a foreign State. This, he will N O T do, if the foreign State or government concerned is NOT recognized by him. 5

(2) The President can enter into treaties, or international agreements, with the concurrence of at least two-thirds of all the member of the Senate. If a foreign State or government is recognized in a treaty, it is clear that he has exercised a Presidential power, of course, with the cooperation of the Senate. 8

From the viewpoint of what political unit or agency has been recognized, recognition may be that of a State, or of a government, or of a belligerent community.

'See Oppenheim-Lauterpacht, Vol. I, International Law, Sec. 75. 'See Hack worth. Digest of International Law. *See Hall, Trwatim on International Law, p. 93. "See Art. V H . Sac. 16, 1967 Constitution. *8ee Art VII. Sec. 21, 1987 Constitution.

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456

R E C O G N m O N OF STATES Ae has already been pointed out, it is a practical rule of International Law that no new State has a right as against other States to be recognized by them; that no State h a s a duty to recognize a new State. Indeed, recognition is within the discretion of States. 7

Requisites Before a State has Even a Chance to be Recognized: (1) According to the majority school of thought: (a) a group of people more or less numerous capable of procreation and self-defense; (b)

definite territory;

(c) a government, more or less stable, capable of representing the collective will; and (d)

independence.

(2) According to the minority Bchool of thought — all the requisites mentioned hereinabove are essential, P L U S one more requisite: the possession of a sufficient degree of civilization. How States Come Into Existence: (1) By a voluntary federation of previously existing States (Example: the German Empire of 1866). (2) By a revolution within the territory of an existing State (Example: the United States, when it declared its independence on July 4, 1776 — a revolution it continued to a successful conclusion). (3) By a peaceful declaration of independence, coupled with the permission of the governing power (Example: the Republic of t h e Philippines when it declared its independence from America on July 4, 1946). (Declaration of independence from Spain WBB on June 12, 1898). (4) By intervention of the Great Powers after a eerious struggle for independence [Example: Poland (1919)] (5) By concession of the governing power of a colonial protectorate [Example: Transvaal (1842)].

'See 1 Oppenheim, op. cit., p. 122.

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467

(6) By the formation of new States in hitherto unoccupied regions, and the subsequent grant to them of independence [Example. Congo Free State (1885)] (7) By the division of a State into two or more States. (Example: Norway and Sweden from the former State of NorwaySweden). (8)

By attainment of a full civilization (Example: Japan).

8

Consequences of the Recognition of a New State: (1) The recognized State can enter into diplomatic relations and treaties with the recognizing State. (2) The recognized State acquires the right to sue in the courts of the recognizing State. (3) The recognized State (as well as its properties) acquires immunity from the jurisdiction of the courts of the recognizing State. (4) The recognized State can demand and possess property that it owns within the territory of the recognizing State. (5) In case the new state has come into existence by virtue of a successful revolution, all its acts and decrees PRIOR to the recognition are given RETROACTIVE effect (future acts can never be questioned in the courts of the recognizing State). 9

RECOGNITION OF GOVERNMENTS Requisites for the Recognition of Governments: Before a government has a chance to be recognized, it must possess the following minimal requisites: (1)

the government muBt be more or less effective and sta-

(2)

there must be no substantial resistance to authority;

ble;

"See Fenwick, International Law, pp. 106-109. 'See Oefjen v. Central Leather Co., 246 U.S. 297; Under hill u. Hernandez, 166 U.S. 260:1 Oppenheim. International Law. p. 133.

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(3) desire and capacity to discharge international obligations must be present. In connection with the requisites for the recognition of a government, the following doctrines have arisen: (1) >fhe Stimson Doctrine — (according to this doctrine, the United States will not recognize any government created by an external aggressive force); (2) the Wilson or Tobar Doctrine — a policy laid down in 1913 by President Woodrow Wilson of the United States, and concurred in by England, that unless a successful revolutionary government met with popular approval, it would be refused recognition by the United States and by Great Britain. The doctrine applied particularly to five republics in Central America. The two Great Powers decreed that they would not "recognize any other government which may come into power in any of the five Republics as a consequence of a coup d'etat or a revolution against a recognized government as long as the freely-elected representatives of the people thereof have not constitutionally reorganized the country." 10

(3) the Estrada Doctrine — enunciated by Estrada, Foreign Minister of Mexico in 1930, to the effect that Mexico would recognize any successful revolutionary government, whether legitimate or not — because an inquiry into legitimacy would be an intervention in the internal or domestic affairs of another State. 11

NOTE: "Precipitate" or "premature" recognition exists when the rebels are accorded recognition P R I O R to the defeat of the mother-State. Such recognition is unlawful and amounts to an "intervention" particularly when it appears that the mother-State is capable of suppressing the belligerent community. 12

NOTE: Applied to "recognition of government," the "principle of effectiveness" states that the new government, to be entitled to recognition, ought to be supported by the "will of the nation, substantially declared"; moreover, there must be evidence of popular approval, adequately expressed, of the revolutionary change. 13

'"See Treaties of the Five Central American Republics. "See I Oppenheim, p. 128. Footnote No. 3. "See I Oppenheim, op. cit., p. 124. Oppenheim, op. cit., p. 127. 13

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459

Consequences of the Recognition of Governments: When governments are recognized, the consequences of said recognition are identical to those in the recognition of States. * 13

(1) A duly recognized revolutionary government has capacity to sue in the courts of the recognizing State. Republic of China v. Merchants Five Assurance Corporation of N e w York 30F (2nd) 278 FACTS: The Republic of China had a fire insurance policy against the Merchant's Fire Assurance Corporation of New York and the Great American Insurance Company. After a fire loss occurred, the revolutionary government of China got hold of the policy, and sued in the United States for the amount of the indemnity. During the pendency of the case, said revolutionary government was recognized by the United States. Issue: Does the plaintifT have capacity to sue? HELD: Yes, in view of its recognition by the Government of the United States. Guaranty Trust Co. v. United States 304 U.S. 126 58 S. Ct. 765 FACTS: Shortly after the Russian Imperial Government was overthrown, the United States recognized on March 22, 1917 its successor, the Provincial Government of Russia. Said recognition lasted for 16 years, when the Provincial government was itself overthrown by the Soviet Government. The latter (Soviet Government) was recognized by the United States on November 16, 1933. Thru an agreement, the Soviet Government made the U.S. government an assignee of all amounts which might be due it (the Soviet Government) as successor of prior Russian governments — amounts which may be owed by American corporations. As assignee, the U.S. government Bued to recover from the Guaranty Trust Co. (a bank) an amount deposited as a credit of the Russian Provisional Government. The Bank set up in defense the New

>im

Supra.

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York Statute on Limitations (prescription of six years). The assignee U.S. government, however, claims: (1) that the Statute of Limitations does not apply to a foreign state or government; (2) that there is a New York rule that the Statute of Limitations does not run against a plaintiff who has no forum within which to assert his rights; (3) that at any rate, it is now the US. government suing, not the Soviet Government; (4) that with the subsequent recognition of the Soviet government, all acts or transactions entered into with the Russian Provisional Government were rendered nugatory. (5) that there is a New York rule that prescription in the case of a bank deposit does not begin to run until there is a definite repudiation conveyed to the creditor, and not until recognition of the Soviet government, was there any person or entity to whom notice of the repudiation could be given. HELD: (1) Anent the contention that prescription does not apply against a foreign State or government, it can be said that the allegation is baseless. It is true that the Statute of Limitations cannot adversely affect the Sovereign State. "Quod nullum tempus occurrit regi" (The sovereign is exempt from the consequences of its laches and from the operation of Statutes of Limitations). The reason is "to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers." (Justice Story in United States u. Hoar, 26 Fed. Cas. pp. 329, 330, No. 15373). But no such reason applies in the case of foreign States or governments. By voluntarily appearing in the role of suitor, it abandons its immunity from suit and subjects itself to the procedure and rules of decision governing the forum which it has sought. Thus, in the absence of definitive rules, prescription should run against a foreign government seeking a remedy afforded by the forum, in the same way that prescription runs against private litigants. (2) The assignor had a forum in which to assert its rights prior to its recognition by the United States, namely,

ANTECEDENTS TO RIGHTS RECOGNITION, STATE CONTINUITY AND STATE SUCCESSION

461

the forum presented by the United States Courts, where the Provisional Government of Russia, could have sued. The right was vested in the State, as represented by the government currently recognized. ThuB, it is wrong to say that there had been no prior opportunity to sue. Whether or not said prior Provisional Government possessed "actual" authority in Russia is of no significance: the important thing is that it was the government recognized by the United States government. Such recognition is political in character, and will not be inquired into by the courts. Suffice it to say that U.S. courts have been long open to suits on behalf of the Russian State. (3) It does not matter that it is the U.S. which has instituted the suit, for it has done so as mere assignee or successor to the rights of the Soviet Government. If the claim of the latter is barred by prescription, the United States as its assignee can be in no better position. (4) The subsequent recognition of the Soviet Government by the United States did not render nugatory all acts and transactions entered into with the Russian Provisional Government. This is tantamount to saying that the judgments in suits maintained in the U.S. by the diplomatic representatives of the Provisional Government, valid when rendered, became invalid upon the recognition of the Soviet Government. The very purpose of recognition is that American nationals may be conclusively advised with what government they may safely carry on business transactions and who its representatives are. If those transactions, valid when entered into, were to be disregarded after the later recognition of a successor government, recognition would be an idle ceremony, yielding none of the advantages of established diplomatic relations in enabling business transactions to proceed, and affording no protection to American nationals in carrying them on. (5) As already said, notice of the repudiation could have been given to the Russian State, thru the Provisional Russian Government, but proof of this NOTICE OF REPUDIAT I O N must be definite. So the case should be remanded to the lower court for further proceedings in conformity with this opinion. (2) A foreign State or government may sue only when it is recognized; but whether recognized or not, it cannot be sued.

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Max Wulfsohn et al. v. Russian Socialist Federated Soviet Republic 234 N . Y . 372 (1923) FACTS: Max Wulfsohn, et al.. •jwned several furs stored in Russia. The furs were later confiscated by the Russian Socialist Federated Soviet Republic, a government N O T Y E T (at that time) recognized by the United States. Max Wulfsohn, et al., sued in the United States said unrecognized foreign government. Issue: May an unrecognized foreign government be sued in a State N O T recognizing the same? HELD: No. The rules to be borne in mind are the following: (a) A recognized government may sue in the courts of the State recognizing it; an unrecognized government may not sue. * 1

(b) A recognized government may N O T be sued in a State recognizing it; an unrecognized government may NOT also be sued. "Whether recognized or not, the evil of such an attempt (to sue the foreign government) would be the same. To cite a foreign potentate into a criminal court for any complaint against him in his public capacity is contrary to the law of nations and an insult which he is entitled to resent . . . In either case, to do so would vex the peace of nations. In either case, the hands of the Stale department would be tied. Unwillingly, it would find itself involved in disputes it may think unwise." If a citizen of the United States thinks himself wronged, the proper method of redress is not a political one. The proper remedy is one of negotiation or of reprisal or of war.

Banco Nacional de Cuba v. Sabbatino 376 U.S. 398; 64 S. Ct. 923 (1964) FACTS: (The other pertinent facts in this case have already been set forth under the heading of Act of State Doctrine — supra) It was alleged that the Banco Nacional de Cuba, an instrumentality of the Cuban government, could

u

See Russian Socialist Federated Rep. t>. Cebrbrio, 235 N . U . 255.

ANTECEDENTS TO RIGHTS: RECOGNITION, STATE C O N T I N U I T Y A N D STATE SUCCESSION

463

not sue in the United StateB because "Cuba ie an unfriendly power and does not permit nationals of this country (U.S.) to obtain relief in its courts." The Bank, however, countered that Cuba and its government had received U.S. recognition, and that, therefore, the existence of unfriendly relations is immaterial. Issue: Should the Bank be allowed to sue? HELD: Yes, the Bank can sue for the following reasons: (1) Under the principle of comity, sovereign Stales are allowed to sue in the courts of the United States. (2) The unfriendly relations between the two countries — as evidence by the severance of diplomatic relations, commercial embargo, and the freezing of Cuban assets in the U.S. — are immaterial, for after all, Cuba and the United States are not at war. Recognition of Cuba implies the willingness of the U.S. to acknowledge that the Cuban government speaks as the sovereign authority for the territory it purports to control. (3) The lack of reciprocity is also of no moment because as pointed out previously by Judge Learned Hand, the doctrine of reciprocity is confined only to foreign judgments, not to capacity to sue. (3) The recognition of a successful revolutionary government has a retroactive effect and validates prior acts of the same government. Oetgen v. Central Leather Co. 246 U.S. 297 FACTS: During the Mexican Revolution of 1913, General Pancho Villa confiscated as "war contribution" certain hides belonging to Martinez. Villa sold the hides to a Texan Corporation which in turn sold them to the Central Leather Co. It was alleged later that the confiscation violated an existing treaty between the United States and Mexico, and that, therefore, the sale was illegal. Oetgen, as assignee of Martinez, thus demanded in U.S. courts the recovery of the hides. Incidentally, during the pendency of the case, the government of Mexico under General Carranza (chief of General Villa) was recognized in 1917 by the United States

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as the de jure government of Mexico. Issue: Was the sale by Pancho Villa valid? HELD: The sale was valid. The recognition of Carranza's de jure government by the United Stales was retroactive in effect, and validated all prior actuations of Carranza's government, from the very commencement of its existence. The United States courts cannot reexamine and condemn the acts of another legitimate government without jeopardizing friendly State relations. Underbill v. Hernandez 168 U.S. 250 FACTS: A revolutionary government in Venezuela detained thru General Hernandez an American citizen named Underhill, a contractor of waterworks. The detention lasted for sometime, but eventually, the prisoner was finally allowed to leave for the United States. On October 23, 1692, said revolutionary government was recognized by the United Slates as the legitimate government of Venezuela. Underhill sued in the United States General Hernandez for recovery of damages caused both by the detention and by certain alleged assaults by the soldiers of General Hernandez. Issue: Is General Hernandez liable? HELD: General Hernandez is N O T liable and Underhill will not be allowed to recover. This is because the acts complained of were those of a foreign revolutionary government, which eventually succeeded, and was RECOGNIZED by the United States. U.S. courts will not sit in judgment on the acts of a foreign government done within the territory of the latter. The acts of the recognized revolutionary government, from the commencement of its existence, are those of an independent foreign nation. Redress indeed cannot be judicial; it must be political — an affair to be settled between sovereigns. Kinds of Recognition of Government: The recognition of a government may be either de jure or de facto: (1) de jure — when no condition is attached and the minimum requisites for recognition are present;

ANTECEDENTS TO RIGHTS: RECOGNITION. STATE CONTINUITY AND STATE SUCCESSION

466

(2) de facto — when the recognition is temporary because of insufficient stability or reluctance or inability to comply with international obligations. 15

NOTE: While recognition de jure is comparatively permanent, brings about full diplomatic intercourse, and gives title to the properties of the government recognized that are situated abroad, recognition de facto is temporary and limited, does not bring about full diplomatic intercourse, and does not grant title to the properties hereinabove adverted to. 16

NOTE: The question of de jure or de facto recognition comes up only if the change in government has been brought about by a coup d'etat or by a revolution; if changes have been effected thru constitutional processes such as peaceful elections, recognition is automatically presumed. 17

Kinds of Government Recognized: The government that may be recognized is either de jure or de facto: (1) de jure government — a government truly and lawfully established by the constitution of a State, but which having been in the meantime displaced is actually cut off from power or control."' (2) de facto government — a government of fact; one actually exercising power and control in the State as opposed to the true and lawful government. Generally, there are at least three (3) kinds of de facto governments: 19

(a) a government set up by a dependency which riBes in revolt (Example: that originally set up by the United States in the course of its revolution against England); (b) a government set up by secessionists within a State for the purpose of governing the territory they hold (Exam-

1-1

1 Oppenheim, op. cit., 130. '"Sec Oppenheim Lauterpacht, Vol. I, pp. 343-344: see also Hade Selassie i Cable and Wireless Ltd. (No. 2) 1939 Ch. 182. See Kelsen. Principles of International Law. p. 279. "Auet. Jur, p. 324. "Auat. Jur., p. 234. i:

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pie: that which was established by the Confederate States of America during the American Civil War); (c) a government of "paramount force"— one whose existence is maintained by an active military power, usually an invading army, and which in the meantime must necessarily be obeyed in civil matters by private citizens. These citizens ought not to be considered responsible as wrongdoers for these acts of obedience even though unwarranted by the laws of the rightful government. (Examples: the government of Castine, Maine during the War of 1812 between the United States and England while Castine was under the occupation of the British forces, the government of the Philippines under the "Philippine Executive Commission" and under the "Philippine Republic" during the Japanese occupation.P 20

21

QUERY What was the status in International Law of the Government of the Philippines under the: (a) Philippine Executive Commission during the Japanese occupation? (b) Philippine Republic, also during the Japanese occupation? ANSWER: Both were considered — de facto governments (of paramount force) by the Philippine Supreme Court; thus, all their acts which did not partake of a political complexion were considered valid.'' Their existence was maintained by an active Japanese Military power within the territory, and against the rightful authority of an established and lawful government (the Commonwealth Government which was then "a government in exile" in the United States). 1

NOTE: The question has been asked — was the Philippine Republic during the Japanese occupation a State? It should be noted that most of the Axis powers recognized the Republic — Japan and her allies, therefore, considered our Republic a State. But, of course, to the U.S. and her allies.

™See Thorington v. Smith, 8 Wallace 8, 9; L. Ed. 361. ' [ / . S . v. Rise, 4 Whcaton 253. "Co Kim Chan v. Valdet Tan Keh and Diion. 75 Phil. 113. C o Kim Chan v. Tan Keh. 75 Phil. 113. a

w

ANTECEDENTS TO RIGHTS: RECOGNITION, STATE CONTINUrrY A N D STATE SUCCESSION

467

the Philippines all the time was still a part of the United States under the belligerent occupation of the enemy. Besides, the Philippines was NEVER annexed to or merged with Japan during the war. Indeed, while the Philippines was "conquered," it never was "subjugated." FIVE PHILIPPINE REPUBLICS (1) The 1st was in 1899. This was a de facto government. [(U.S. v. Pagaduar, 37 Phil. 90 (1917)]. (2) The 2nd was in 1943 to 1945 consisting of the Philippine Executive Commission and the Republic during the Japanese Occupation. The two were de facto . [Co Kim Cham v. Valdez Tan Keh, 75 Phil. 113 (1945)]. (3) The 3rd (from our independence in 1946 to 1981. [(Kuroda v. Jalandoni, 83 Phil. 171 (1949)]. (4) The 4th Republic (from 1981 to February 1986). This is essentially a presidential government with certain aspects of the parliamentary system. [(Free Telephone Workers' Union v. Minister of Labor, GR-58184, October 30, 1981)]. (5) The 5th or present Republic from post EDSA "People Power of Feb. 26, 1986 to the present — a purely presidential form of government. Thorington v. Smith 8 Wallace 8, 9; 19 L. Ed. 361 FACTS: A parcel of land in Alabama was sold by a citizen of Alabama to another citizen of the same state during the American Civil War. Alabama was then in the hands of the Confederate rebel government, so some part of the purchase price was paid in Confederate money. The Civil War ended in 1865 and the Confederate notes became worthless. The seller, however, sued for the recovery of the balance. It was pleaded in defense that the promissory note for the balance was illegal, in view of the stipulation to pay in Confederate notes (which at that time had already become unlawful), Issue: Can the buyer be made to pay the balance of the price? HELD: Yes, not in illegal Confederate money, but in lawful U.S. money, computed at an equivalent rate. The con-

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tract, being a transaction in the ordinary course of civil society, must be respected and enforced even after the restoration of peace to the extent of its just obligation. It would have been different had the contract been entered into with actual intent to deliberately further the rebellion. [NOTE: Observe that acts in aid of the rebellion or civil war perpetrated by the rebel Confederate government were NOT recognized. (Horn v. Lockhart, 17 Wall I (1868).] U.S. on Behalf of George W. Hopkins v. United Mexican States General Claims Commission (1927) p. 42 FACTS: A revolutionary and de facto government (the Huerta Administration of Mexico) issued several postal money orders in 1914, but subsequently, said government was overthrown by the de jure one. May the purchaser of the money orders recover payment from the de jure government of Mexico? HELD: Yes, because the issuance of money orders is a routinary function of all government regardless of how said government has come into power. The issuance does not partake of a political complexion, and does not directly aid the furtherance of revolutionary process. (NOTE: — Act of a political character which may result in State obligations may or may not be recognized by the restored government). QUERY During the last days of the Japanese occupation of Manila, A had purchased a money order payable to B in Iloilo. This was accordingly transmitted from Manila to Iloilo but was lost on the way when the liberation forces under General Douglas MacArthur came and clashed with the Japanese Forces. Upon the advent of peace, was the restored Philippine Government justified in refusing to refund the amount of the lost money order on the ground that the government during the occupation was a usurpation? Why? ANSWER: The restored Philippine Government is not justified in refusing to refund the amount because, this being a routinary act of administration by any kind of government regardless of its form or character, the view has been that the new

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government as a general practice assumes responsibility of such transactions. 14

Recognition of States and Recognition of Governments Distinguished: (1>

From the viewpoint of meaning.

When a State is recognized, the recognizing State admits the possession by the former of all the essential requisites for a State and the former is thuB regarded by the latter as an International Person. When a government is recognized, it does not necessarily follow that its being a State is also recognized because that government, may for instance, be that of a mere dependency. 25

Case: Lawyer's League for Better Philippines, et al. v. President Corazon C. Aquino G.R. N o . 73748, May 22, 1986 En Banc, Minute Resolution The Aquino Government is not merely a de facto but is, in fact and law, a de jure government. The people have made the judgment and have accepted the Aquino Government which effectively controls the entire country. The community of nations has recognized its legitimacy. All the [original] eleven members of the Supreme Court, as reorganized [namely: Chief Justice Claudio Teehankee and Justices Vicente Abad Santos, Jose Y. Feria, Pedro Yap, Marcelo B. Fernan, Andres R. Narvasa, Ameurfina MelencioHerrera, Nestor Alampay, Hugo E. Gutierez, Jr., Isagani Cruz, and Edgardo L. Paras] have sworn to uphold the fundamental law of the Republic under the government. (2) From the viewpoint of revocability: Once recognition is accorded a State, it generally cannot be revoked (as long as the State continues to exist as such); upon the

"See U.S. on Behalf of George W. Hopkins v. United Mexican States. General Claims Commission, 1927, p. 42. "See Hackworth, Digest of International Law. Vol. I p. 166.

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other hand, the recognition of a government is revocable at will. However, even if this is done, the State the government of which is no longer recognized — remains an international person, despite lack of official diplomatic intercourse between the two States. 28

NOTE: It is unfortunate that in many cases the terms "government" and "State" have been used interchangeably, as if they mean one and the same thing; similarly, "recognition of a government" has been confused with "recognition of a State." For example: (a) In the case of Dougherty v. Equitable Life Assurance, the Court held that "On Nov. 16, 1933, the United States extended formal recognition to the Soviet Republic." This is misleading: literally, it is as if Russia was being recognized as a State only at that time, when in truth, it had begun to exist as a State long before that moment, and what the court really meant was that on said date, the new Russian government was recognized. 21

2

(b) In Jones v. Garcia del Rio, " the Court confused the new State of Peru (after a revolutionary separation from Spain) with the Peruvian government. In effect, the Court stated that since the new Peruvian government had not yet been recognized by England, it was doubtful whether the State of Peru already existed. It is gratifying to observe that in 1939, England in two cases, clearly set forth the distinction between "State" and "Government." It held, inter alia, that governments may act illegally and ultra vires under the laws of one State; that, therefore, a State may sue in a foreign forum and allege the illegality of the acts of its government at a given time; and that this allegation cannot be made by the government itself, despite a change of form, for then it would be impugning its own actuations. (a) First Case —The Government of Spain v. The Chancery Lane Safe Deposit, Ltd. FACTS: The British Government recognized in February, 1939 the Spanish government of General Franco as the

" S e e Oppenheim-Lauterpacht, International Law, Vol. I, Sec. 73. "Court of Appeals. New York, 1934. 266 N . Y . 17. "Great Britain High Court of Chancery 1S23, Turner and Russell 297

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dejure Spanish government. This government — in the name of the Spanish government — brought an action in an English court. The purpose was to impugn an act of the previous Spanish government (the Republican government) made at a time when said previous government was still the de jure one. Issue: May the action prosper? HELD: The action will not prosper. Both the Republican and the Franco governments form the same legal enlity — the same Spanish government — even if composed of different persons. Therefore, said Spanish government cannot legally impugn one of its own acts; otherwise stated, it cannot premise a claim on the illegality of its own actuations. (b) The Second Case — The State of Spain v. The Chancery Lane Safe Deposit, Ltd. 29

FACTS: This had the same facts as the preceding case with one notable divergence: here, the suit was instituted not in the name of the Spanish Government BUT in behalf of the STATE of Spain. Issue: May the action prosper? HELD: Yes, this time, the claim may prosper. While the government is indeed the principal organ of the State, still "government" and "State" are from the viewpoint oflaw, NOT identical things. While the "government" regardless of change of form C A N N O T impugn its own act, a "State" may properly allege that one of the actuations of its government at a GIVEN T I M E (namely, the act of the Republican government) was ultra vires and, therefore, illegal. 30

Effect on Non-Recognition Insofar as the UN is Concerned: Let us consider a hypothetical problem. X is a State-Member of the U N . A revolution takes place in X and the revolutionary government takes effective control of the country. Assume that some of the UN members for one reason or another refuse to extend recognition to the new government; assume further that delegates of BOTH the old and the new governments present themselves in the U N . Two important questions will naturally

"England, High Court, 1939; Annua/ Digest 1941 1942, Case No. 7. " S e e Kelaen, Principles of International Law, pp. 290-261.

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arise. Firstly, what is the effect insofar as the UN is concerned of this non-recognition by some UN members? Secondly, who will represent State X? In answer to the first query, it ia submitted that insofar as the UN is concerned, there is hardly any effect of this non-recognition: State X continues to be a member-State, and relations between X and the non-recognizing States (with the exception of diplomatic intercourse, which will, of course, be disrupted) will continue to be governed by the UN Charter. In reference to the second question, the problem of delegate-representation will have to be decided by the UN itself: ff the UN is convinced of the independence and effective control established by the new government, it would seem to have no alternative except to admit the new debates and to cancel the credentials of the representatives of the old government. After all, under the Chatter, membership is conferred not on any particular government but on the State concerned; hence the UN cannot refuse to resolve the question of representation. 31

THE MIDDLE FORCES AS PEACE ADVOCATES Not generally known in the current peace process initiated by the Fidel V. Ramos government is the emerging but quiet involvement of the private business and professional sectors. In the past, peace and amnesty initiatives dating back to June, 1986 when former President Corazon Aquino started talks with the National Democratic Front ( N D F ) , thru a panel headed by the late Sen. Jose W. Diokno, have been generally bilateral — the government upon the one hand and the rebels upon the other. It is true that a number of Peace Advocacy Groups, NGOs and Church elements have always maintained a residual interest in the peace talks, but the middle forces represented by business and professioinal elements have remained largely aloof. What provides true hope in the current peace gab is the deep concern and interest that industry and business, both big and small, have started to demonstrate. After all, the EDSA Revolution and the triumph of People Power saw the indispensable convergence of the peasant street marchers with the middle forces

3l

S e e Resolution of December 14. 1950 of the General Assembly; see also kelsen. Principles of International Law. pp. 2S4-285.

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and the boardroom movers of Makati and Ortigaa (two elite suburbs of Metro Manila]. The peace and consciousness of the middle forces was pried open during the Multi-Sectoral Conference convened by the Philippine Chamber of Commerce and Industry on June 13, 1992. Attended by over 500 representatives, the conference was called lo propose a comprehensive program for the first 100 days of Pres. Ramos. The meeting was attended by the then 'President-apparent' himself together with members of the then Aquino Cabinet, business and industry leaders, NGOs, the academe, peasant and labor sectors as welt as media. One of this book's authors was invited as workshop rapporteur. Under the chairmanship of prominent practising lawyer Artemio Panganiban, the Workshop on Administration of Justice (one of the 10 sub-groups of the conference) discussed the basic elements of the peace process. It was pointed out that the armed confict cannot be solved by military means. Neither is a unilaterial amnesty program by itself sufficient to remove the violence that has wracked our country over the past 45 years. For the armed conflict is merely the consequence of social, political and economic imbalances. Hence, the insurgency can only be resolved with finality if these underlying problems are themselves solved. The conference enthusiastically approved the peace initiatives of the Panganiban Workshop. Later, the PCCI Board led by its chairman Aurelio Periquet and its president Jose Pardo institutionalized the commitment of PCCI to the peace process by the appointment of Panganiban as PCCI's chief peace advocate, in addition to his duties as PCCI general counsel and director. The old-time Multi-Sectoral Peace Advocates (MSPA) led by Sen. Wigberto Tanada, Rep. Bonifacio Gillego, Dr. Maris Diokno, Prof. Ed Garica, former Rep. Butch Abad and Ms. Teresita Deles noticed this thawing of PCCI and saw in it a major breakthrough. They met with the PCCI Board and encouraged PCCI to spread the intiatives to the other middle forces in the business and professional sectors. To date, PCCI counsel Panganiban continues to liaise with the M S P A . Now, the peace virus is slowly infecting the entire business community as the other organizations gobble up information on the subject. Such elite groups like the Management Association of the Philippines, headed by Antonio Henson, Makati Business Club

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chaired by corporate lawyer Ricardo Romulo, BankerB Association of the Philippines presided by Far East Bank's Octavio Espiritu and the Financial Executives Institute [then] headed by Edwin Fernandez are all re-educating their leaders and members on the elements of peace as not merely a cessation of hostilities but the implementation of solutions to the problems and causeB that spawned the rebellion. To be sure, the road to peace will not be totally smooth for these middle forces. Sacrifies and concessions will be asked from them for no peace will be possible without sacrifices and solidarity. The Joint Declaration signed on Sept. 1, 1992 by the Government of the Republic of the Philippines represented by Rep. Jose Yap and the National Democratic Front led by ex-priest Luis Jalandoni recommended that the substantive agenda of the formal peace negotiations shall include: *

Human rights and international humanitarian law

*

Socio-economic reforms

*

Political and constitutional reforms, and

*

End of hostilities and disposition of forces

Among the socio-economic reforms the N D F is asking for, has reference to the foreign debt payment cap, an issue that is very sensitive in the business community. Another critical issue is N D F s insistence on enlarging the scope and benefits of land reform. Aside from the Marxist-led insurgency, there are also three major groups of armed rightist military rebels: (1) T h e R A M , originally the Reform the A r m e d Forces M o v e m e n t now, Rebolusyonaryong Alyansang Makabayan (Revolutionary Nationalist Alliance); (2) The SFP or the Soldiers of the Filipino People; and (3) The Y O U or Young Offices Union. Recently, cashiered Lt. Col. "Gringo" Honasan submitted possible talking points, some of which the business and middle forces must address like: *

Implementation of nationalist economic policies and

*

Actualization of social justice programs to solve poverty, unemployment and criminality.

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In the South, there are still sporadic clashes between the A F P and the Muslim rebels. But the Moro National Liberation Front is heavily fragmented into three (3) groups: (1) the mainstream M N L F chaired by Nur Misuari; (2) the breakaway M N L F Reformist Group chaired by Dimas Pundato who has joined government as Muslim Affairs chief; and (3) Moro Islamic Liberation Front (MILF). At present, the Ramos government has embarked on several "confidence building measures." These are steps unilaterally undertaken by government to create a favorable climate for peace negotiations and to show sincerity in the resolve to end the insurrection. Some of these measures are: 1) custody; 2)

Mr. Ramos' release of ranking rebels from military Repeal of the Anti-Subversion Law (RA 1700);

3) The sending of government emissaries led by Rep. Jose Yap to meet with the NDF in The Netherlands; 4) (NUC).

The setting-up of the National Unification Commission

Al) Filipinos have a stake in peace. In particular, businessmen are increasingly becoming aware that without peace, business cannot prosper. And without business, economic development cannot take place. As former rebel Horacio "Boy" Morales points out "peace is too precious to be left to the whims and designs of the armed protagonist only. Society must be involved because society needs peace and needs it now." With the emergence of the middle forces of business, industry and the professions as peace advocates, the process of consensus-building for a non-violent society is now entering a new phase. /

RECOGNITION OF BELLIGERENT COMMUNITIES Used in connection with a civil war, the "belligerents" are the contending forces; more specifically, the term refers to rebels who have successfully occupied a substantial portion of the territory, have organized their own form of civil government, and who to all appearances are bound to win in the civil strife. Prior to recognition by other States, they are referred to as mere "insurgent";

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after recognition, they become "belligerent" and their community is called a "belligerent community." 32

DOES THE MNLF HAVE INTERNATIONAL LEGAL PERSONALITY? Prominent Filipino international lawyer, A r t e m i o V. Panganiban, in his article at the Manila Bulletin, (Jan. 14, 1987, p. 7), has this to say on the status of the Moro National Liberation Front ( M N L F ) , an insurgent group, thus: "A few days after [then] Minister Aquilino Pimental, head of the Philippine panel negotiating with the M N L F , announced that "the government prefers that all talks be held in the Philippines not in the Middle East" (Manila Bulletin, Dec. 25, 1986), he unceremoniously left for Jeddah, Saudi Arabia on Dec. 30, 1986 precisely to meet there with his M N L F counterparts. He was accompanied by panel members Agapito 'Butz' Aquino [now a Senator) and Norberto Gonzales, and [then] Deputy Minister of Local Government Saidamen Pangarungan. This meeting in Jeddah *is in accordance with a ceasefire agreement signed in a Jolo, Sulu convent a few months ago." (Manila Bulletin, Dec. 31, 1986). Continued he: "On January 5, 1987, the newspapers reported that an agreement between the government and the M N L F was signed on Jan. 3, 1987 in Jeddah, 'under the auspices of the 46member Organization of Islamic Conference, (OIC),' whereby 'the Moslem group dropped its demand for full independence and agreed to negotiate autonomy,' which according to M N L F chairman Nur Misuari would mean a 'State within a State.' Both sides agreed to continue discussion on whether to grant full autonomy to five groupB of islands in the Philippines, namely, Mindanao, Sulu, Basilan, Tawi-Tawi and Palawan. "Our legal opinion has been sought by Bulletin columnist, former Ambassador Melchor Aquino on this question: What are the effects, in international law, of the agreement by the Philippine government to meet with representatives of the M N L F in a third country (Saudi Arabia) under the auspices of an association of 46 governments/States of which the Philippines is not a member (Organization of the Islamic Conference)? ^See Wilson and Tucker, International Law, p. 69.

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"In answer to an earlier query posed by Ambassador Aquino, (see Manila Bulletin, Dec. 17, 1986), we opined that on the basis of generally-accepted principles of international law, the M N L F (and the NDF, for that matter) did not have a status of'belligerency.' This opinion is subject to the caveat that 'since there is no purely legal right to be recognized, the question as to whether belligerency may be accorded recognition is a matter of policy on the part of the recognizing State or government.' (Salonga and Yap, Public International Law, 1966 ed., p. 102). In other words, Buch recognition may be given at the discretion of a sovereign third State, and being political in character, recognition can hardly be questioned in an international legal tribunal. "It is in this light that the query assumes relevance. Otherwise stated, by its acquiescence to confer with the M N L F in Saudi Arabia under the auspices of the organization of the Islamic Conference, is the Philippine government giving other States some grounds to accord recognition to the M N L F as a belligerent community or as some other 'subject' of international law? "To be sure, this is not the first time that the Philippines as a sovereign State has agreed to negotiate with the M N L F in a foreign country under the auspices, if not sponsorship of the OIC. The Tripoli Agreement of 1977 was concluded in Libya by the Marcos government under such circumstances. In other words, a refusal by the [then Aquino J government to negotiate in Jeddah under the auspices of OIC would not have prevented third States from using these excuses as political justifications for recognition. However, by its agreement to meet in a third country, the present government is estopped from denouncing such acts of the previous regime. "It is difficult to think that Great Britain would agree to negotiate with the Irish Republican Army in Italy or Spain under the auspices of an association of Catholic States, as it is equally difficult to imagine India consenting to meet with Sikh separatists in Nepal or another third State, under the sponsorship of an association of States of which it is not a member. Be that as it may, the Philippines, both under the old and new regime, has made this thought rather academic.

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"Traditionally, 'only sovereign States c a n be regarded as the subjects of international l a w . ' (Salonga a n d Yap, Op.Cit., p. 66). Hence, in the d a y s of Grotius who is generally regarded as the father of international law, only States had 'international personality,' i.e., only States had rights and duties under international l a w . In the course of time, this concept has changed and other entities have been vested with or have come to possess international personality even if "incomplete, imperfect, qualified or quasi,' (See Paras, International Law, 1975 ed., p. 69). The International Court of Justice recognized this in an advisory opinion in Reparations for Injuries Suffered in the Service of the United States. (I.C.J. Rep., 1949, 174) that, Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase on the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States.' "Currently, international law is fast evolving to meet fast-changing events. International law is not imposed by a political superior upon its subjects. It is derived not from any particular legislation (Cf. Isagani A. Cruz, International Law, 1964 ed., p. 3) but its source is largely the collective acts or agreements of States. "During the last 50 years, more than 100 new States have emerged and have challenged traditional international law doctrines which run counter to their interest. New principles have thus evolved. Whereas before, intervention in purely domestic affairs was absolutely illegal, now customary international law has allowed exceptions for instance, *when a State renders itself guilty of cruelties or persecutions of its own materials to the extent of denying them fundamental human rights, intervention in the interest of humanity is permissible. In 1971, India used large-scale military forces in Pakistan, on the allegation that said State was violating minimal standards of human rights in East Bengal by killing and imprisoning a large number of the population, causing mass flights of refugees to India.' (Coquia and Santiago, Public International Law, 1984 ed., pp. 222 & 223). "In s u m m a r y , we B u b m i t t h a t t h e agreement b y t h e government to m e e t a n d , thereafter to s i g n a n a c c o r d w i t h the

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M N L F in Saudi Arabia under theauspicee of the OIC did not substantially alter our earlier opinion that, under traditional international law, a status of belligerency has not been accorded to the Muslim insurgents. "However, in light of fast developments in international law ,we frown upon these acts of acquiescing to meet in a place outside the territory of the Philippines, especially under the auspices, if not sponsorship of the Organization of Islamic Conference. They could provide excuses, if not justifications, to vest 'quasi' international personality to the MNLF, not necessarily belligerency status, but enough to grant it international rights and warrant intervention by the members of the Islamic Conference in what otherwise would have been clearly a domestic affair. By their sheer number — an awesome 46 States — the Islamic Conference members could indeed by agreement spawn new principles of international law and thus justify their recognition of th MNLF and eventual direct intervention in the problem. Let it be remembered that recognition is a political act not subject to judicial review by international legal tribunals. "We are not privy to the reasons behind our government's consenting to meet in Jeddah. And the fact that the M N L F has agreed to abandon its demand for independence and to negotiate merely for 'full autonomy' or for a 'State within a State' does not minimize, much less excuse the role of third States (Saudi Arabia) and organizations (OIC) in the problem. On the contrary, it gives them a more permanent, if not more important, role in finding a solution to our Muslim insurgency problem in the future. "This is not to say that we blame the [then Aquino) government for its quest for peace. For indeed, if it [has]succeed [ed] in its attempt to settle this very difficult and delicate problem, then all this brinkmanship would have been worth the exercise. [At any rate, if it has had] then it will have the satisfaction [of] exhaust [ing] all avenues to peace, even to the extent of endagering its international law posture. Indeed, peace must be pursued regardless of legal and political niceties that, anyway, its opponents would invoke whether they are used or not." NOTE: Mindanao peace talks have been initiated by the

INTERNATIONAL LAW A N D WORLD POLITICS

FVR government with the M N L F , meeting in Jakarta since the last week of Oct. 1993 continuing to early 1994. QUERY Distinguish insurrection from rebellion? ANSWER: An insurrection becomes a rebellion when the civil strife becomes serious and covers a substantial portion of the territory. ANOTHER QUERY These are days of revolts and rebellions. What is meant by the recognition of belligerency, and what is the effect of this recognition? ANSWER: (a) Recognition of belligerency simply means that rebels in one State who occupy a substantial portion of the territory, with an organized government, and with reasonable chances for success, have collectively been endorsed with an international personality. 33

(b) The consequences of recognition of a belligerent community are the following: (1) responsibility for the acts of the belligerents shift from the legitimate government to the recognized belligerent community; (2) if the legitimate government recognizes the belligerents as such, it must regard them not as criminals or traitors but as belligerents and enemy combatants under the rules of war; (3) third States that accord the recognition must be N E U T R A L in the struggle. 34

( N O T E : Even if the rebels are not recognized as belligerents, they are entitled to certain minimal rights, "'Ibid. "Wilson and Tucker, op. cit., p. 69. " S e e Wilaon and Tucker, op. eit., p. 73. * * S « the Geneva Convention of 1949.

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The Ambrose Light 25 F. 408 FACTS: In the course of a revolution in Colombia (a civil war that finally resulted in the creation of the State of Panama), an American gunboat captured a vessel named the "Ambrose Light," belonging to the rebels. The vessel was then engaged in attacking the vessels of the central government of Colombia, and was, therefore, engaged not in an act of piracy but in an act of legitimate warfare. It was proved that the U.S. had accorded recognition of belligerent rights to said rebels. Issue: Should the vessel be released? HELD: Yes, in view of the recognition of belligerent rights. Such recognition may be express (as in the case of a declaration of neutrality) or implied (as in long acquiescence to belligerent acts exemplified by a blockade of ports). The Three Friends 166 US 1 (1897) FACTS: In the course of a rebellion in Cuba against Spain (1696), at a time when the U.S. and Spain were still maintaining peaceful relations, the collector of customs in Florida, U.S., captured a vessel named T h r e e Friends," owned by the rebels. At that time, a U.S. statute allowed the capture of a vessel engaged in hostile operations against a country with which the U.S. was at peace. The rebels at that time had nol been accorded belligerent recognition by the U.S. Issue: Should the vessel be released? HELD: No, in view of the lack of belligerent recognition. Had there been such recognition, the answer would have been different. The reason is clear: the recognition of belligerency, while not conferring all the rights of an independent State, concedes to the belligerent government recognized — certain rights — such as the right of blockade, visitation, search and seizure of contraband articles on the high seas. In the instant case, there was never such a recognition of belligerent rights — what was recognized was merely a condition of political revolt. It is the political department of the government that should recognize this state of belligerency. So far, no such recognition has been made.

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THE PRINCIPLE OF STATE CONTINUITY Despite changes in the form, n a m e , or leadership in the government, the State continues to be an International Person: this iB the doctrine of State continuity. * If, however, the area is so diminished or the population so decreased that maintenance of the State becomes a moral impossibility, the State would ceaBe to exist as such for lack of the essential requisites for recognition in the international legal order. The change of government, upon the other hand, does not change the "sovereignty" considered as a concept: the metamorphosis is limited merely to the persons exercising such sovereignty. 3

37

The Sapphire 11 Wallace 164 FACTS: The French vessel "Euryale' collided with the vessel "The Sapphire." Emperor Napoleon III of France as owner of the former sued in a California court for the resultant damages. While the litigation was pending. Napoleon III lost his throne, and the defendant asked for the dismissal of the suit. Issue: May the successor of Napoleon I I I continue the action? HELD: Yes. The real plaintiff was not Napoleon in his capacity as a private individual but Napoleon as the French ruler. The change in government was immaterial for French sovereignty remained the same.This sovereignty is "continuous and perpetual, residing in the proper successors of the sovereign for the time being." But the case can be continued by the new government only if it has been duly recognized. Effect of change of government: (1) If the change has been P E A C E F U L (e.g., thru national elections) the rule is simple: t h e new government assumes the responsibilities and rights of t h e old government. " 3

(2) If the change was effected thru V I O L E N C E (e.g. revolution), a distinction must be made: "Lawrence, Principles of International Law. p. 88. "Sec the Sapphire, 11 Wallace 164. See the Republic of Peru i- Dreyfus Brother*. 38 Ch. D 348. M

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(a)

483

acta of a political complexion may be denounced;

(b) routinary acts of mere governmental administration continue to be effective (e.g., sale of railroad tickets, registration of births, sending of postal money order). 39

(QUERY: If a de facto government replaces the existing government, will Baid de facto government have capacity to bind the State — insofar as third countries are involved? The answer in the Tinoco Arbitration Award [Aguilar-Amory and Royal Bank of Canada Claims, G.B. v. Costa Rica, U N . Rep. Vol. 1, p. 369 (1923)1 was YES, provided that such de facto government has "really established itself in such a way that all within its influence recognize its control, and there is no opposing force assuming to be a government in its place." Otherwise stated, it must be discharging its functions as a government usually does, respected within its own jurisdiction. This does not necessarily mean that the rival government must have been completely ousted; it is sufficient that it be in control of a major portion of the State. [See the case of George W. Hopkins v. The United Mexican States, General Claims Commission (1927), p. 42]. EXTINCTION OF STATES Whenever any of the essential requisites of a State ceases to exist, the State itself may be said to have met its end. (1) Involuntary extinction (against the will of the State) may be caused by: (a) conquest by and annexation into another State (e.g., Poland — 1795; South African Republic — annexed in 1901 by England); (b) forced dissolution of a federal union (e g., dissolution of Austria-Hungary). (2) Voluntary extinction may occur if: (a) a real union voluntarily dissolves itself (e.g., breakup of Norway-Sweden into the separate Stales of Norway A N D Sweden in 1905);

"United States on Behalf of George Hopkins v. United Mexican States General Claims Commission, 1927, p. 42.

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(b) a real union or a federal State is formed (e.g., the United StateB of America was formed by the cessation of the separate international personalities of the component States); (c) merger of one State with another (e.g., in 1908, the Congo Free State was merged with Belgium). (3) Natural extinction may be caused by volcanic eruption (e.g., Mount Pinatubo eruption in the Philippines ejecting lahar, resulting in many areas in the vicinity being almost totally destroyed including the Clark Air Base in Angeles, Pampanga), submersion under the Bea, total emigration (these do not usually take place) THE PRINCIPLE OF STATE SUCCESSION of one State i n the control State sut of the territory possessed by another State resulting in a conBequehT transmittion generally J>f_rights and obligations and a change in International personality." State succession y ^ 40

41

m a

JAX—Universal succession — takes place when one State completely absorbs the international personality of another State, and thereby becomes the sole representative in the international legal order of the rights and obligations of the latter State. This may be caused: (1) by the annexation of an existing State thru subjugation or other forcible means; (2) by the incorporation of one State into a federal union; and (3) by the division of a State into a number of smaller, separate Slates. Qi^Partial succession — occurB when only a portion of the temtoryoTone State is taken over by another State, as in the case of:

" H y d e . International Law, Vol. I. Sec. 120. "Fenwick, International Law, p. 122. " S e e Oppenheim, International Law, Vol. 1, p. 151. " S e e Fenwick. loe. eit.

ANTECEDENTS TO RIGHTS: RECOGNITION, STATE CONTINUITY AND STATE SUCCESSION

485

(1) a grant of independence (thru revolution or thru peaceful means) to a portion of the territory (e.g., the formation of the United States after rebelling against England); (2) a grant of independence to a protectorate; (3) the separation of a member-State from a federal union; and (4) the acquisition thru cession of part of the territory of one State (e.g., acquisition of the Philippines by the United StateB from Spain). 44

EFFECTS OF STATE SUCCESSION Among the effects of State succession are the following: (1) There is NO succession with respect to political rights and duties, political treaties (alliance, neutrality, arbitration), treaties of commerce and extradition, tort, liability, and private properties. (2) There is succession insofar as public properties and ordinary public debts are concerned. 45

U.S. v. Percheman 7 U.S. Reports FACTS: Percheman owned a parcel of land in Florida, under a grant of title to him by Florida while said State was still under Spain. When Florida was ceded to the United States, did Percheman's ownership over the land continue? HELD: Yes, for a cession of territory is never understood to be a cession of private property belonging to individuals. Only the sovereignty over the state of Florida had been transferred to the American government. Indeed where private properties are concerned, there can be no State succession.

"See Fenwick, International Law, Vol. I, Sees. 80-82. "See Fenwick, International Law, pp. 124-125; Oppenheim-Lauterpacht. International Law. Vol. I, Sees. 80-82.

I N T E R N A T I O N A L L A W A N D W O R L D POLITICS

The Eastern Extension; Australasia and China Tel. Co. v. U.S. 231 U.S. 326 FACTS: The Spanish Government in the Philippines entered into a contract with the Eastern Extension Australasia and China Telegraph Company whereby the latter would constitute at its own expense private submarine cables and telegraph land lines, which the former would use and for which it would pay an annual subsidy of 4,500 pounds payable in Manila. After some time, the United States assumed sovereignty over the Philippines. The question that came up was whether or not in the absence of a provision in the Treaty of Paris of 1898, the U.S. was required to assume said contractual obligation of the Spanish government. HELD: No, the United States was N O T so required. The cables and lines were not public property; they were privately owned — and, therefore, did not become U.S. property. The U.S. was not under compulsion to continue with the said private contract, just as it had no duty to continue with the services of Spanish-appointed officials. Haile Selassie v. Cable and Wireless Co., Ltd. 1 Chancery 182 FACTS: When Haile Selassie was still Emperor of Ethiopia, he sued on behalf of his government the defendant company for a sum of money* The suit was brought before the British Chancery Division, which eventually rendered a judgment in favor of Ethiopia. The case was, however, appealed to the British Court of Appeal. In the meantime, Italy invaded Ethiopia, and in due time, the King of Italy was recognized by the British Government as the ruler of Ethiopia. The issue, therefore, became this: was Ethiopia still entitled to the judgment? HELD: Ethiopia was no longer entitled to the judgment. Firstly, it had been annexed by Italy; secondly, the Italian Government was recognized as the successor lo the State of Ethiopia. The right, therefore, to the credit — public property — became vested in the King of Italy.

ANTECEDENTS T O RIGHTS: RECOGNITION, STATE C O N T I N U I T Y AND STATE SUCCESSION

«7

The Austrian Empire Succession Case Case No. 39, Annual Digest (1919-1922) FACTS: An Austrian gymnastics teacher sued the Ministry of Education for certain bonuses due him (from October 1, 1917 to September 30,1918). Unfortunately, however, the Austrian Empire had been broken up after World War I into several national States, and a Liquidation Commission had been set up to determine the assets and obligations of the old Empire. The agreement to prorate among the new States the obligations of the Empire could not yet be implemented because the inventory of assets and liabilities was not yet complete. Issue: Pending the inventory, will the suit of the teacher prosper? HELD: Since the inventory was not yet complete, the claim of the plaintiff should in the meantime be dismissed, inasmuch as it has not yet been determined exactly how much is the proportionate liability of the Ministry of Education of the German Austrian Republic (one of the new States formed). The Court stated furthermore that "it is true that according to the principles of international law, in cases in which a territory is ceded by one State to another, or when several States arise out of one State, the State acquiring the territory, or the new States, are bound to take over an appropriate part of the obligations of the formed State in proportion to the assets which it or they have taken over and which have been created as a result of the activity or under the protection of the former State. However, in individual cases, both the taking over of the liability and the extent to which it has been taken over, must be determined by international agreement — in this case between the national States in the former Austrian territory. For this purpose, there had been set up a Liquidations Commission composed of representatives of those States and entrusted with the function of determining the status of the assets and liabilities. Only after the share of liability of the German Austrian Republic has been determined, will the plaintiff be entitled to bring the action. EFFECT ON MUNICIPAL LAWS WHEN SOVEREIGNTY IS CHANGED What iB the effect of the transfer of sovereignty on the municipal laws of a country? This queation was squarely answered in

I N T E R N A T I O N A L LAW A N D WORLD POLITICS

the caBe of Vilas v. City of Manila, 229 US. 345. It was held in that case that: (1) Laws partaking of a political complexion are abrogated automatically; (2) Laws regulating private and domestic rights continue in force until changed or abrogated by the new ruler. In stating these conclusions, the Court opined as follows: T h a t there is a total abrogation of the former political relations of the inhabitants of the ceded region is obvious. That all laws, therefore, in force which are in conflict with the political character, constitution, or institutions of the substituted sovereign lost their force, is also plain. BUT it is equally settled in the same public law that the great body of municipal law which regulates private and domestic rights continues in force until abrogated or changed by the new ruler." In Philippine Sugar Estate Development Company, Ltd. v. United States, 39 Court of Claims 225, it was said that municipal laws promulgated during the time the ceding authority existed and which are generally recognized as necessary to the peace and good order of the community remain in full force and effect. Any other rule could hold in abeyance civil functions with respect to the use, enjoyment, and transfer of private property, and would lead to results harmful to the inhabitants of the ceded territory and injurious to the best interest and authority of the new sovereign as well. This is something that has not been tolerated in modern times. -

46

QUERY: Is it a rule of international law that generally nonpolitical laws continue in case of a change in State sovereignty? ANSWER: According to the United States Court of Claims in the case of Philippine Sugar Estates Development Company, Ltd.,* * the answer is in the affirmative. Kelsen, however, disputes this claim: He says: 6

T h e r e is NO such rule of international law. If the old law continues, it is only because the successor-State by virtue of its legislative power — tacitly or expressly allows the old law to continue as its own law, i.e., the law of the succeeding

"Alvarez v. U.S., 216 U.S. 167. ***39 Court of Claims 225.

ANTECEDENTS TO RIGHTS: RECOGNITION. STATE CONTINUITY AND STATE SUCCESSION

489

State. Although the content of the law may remain the same, its reason for validity has changed. It is now valid on the basis of the constitution of the successor State, whereas it was valid previously on the basis of the constitution of the predecessor State." 47

It would Beem that Kelsen in this instance appears to disregard the customs of nations as well as the principles of the natural moral law as sources of international law: as adverted to by the Court of Claims in the case cited, it is customary for successor-states to continue non-political laws; moreover, the natural moral law decrees that there will be harmful and injurious results (even to the successor-States) if a contrary rule would be adopted. QUERY: If a State ceases to exist as such, are not its rights and obligations automatically extinguished? If so, what rights and obligations are inherited by the successor-State? ANSWER: It is conceded that once a State becomes extinct as such, its rights and obligations ought to cease; but justice and fairness demand that international law should impose upon the successor-State itself certain rights and obligations I D E N T I C A L of those previously possessed by the extinct State. 48

— 0O0 —

"Kelsen, Principles of International Law, Footnote, p 292. "See Kelsen, Principles of International Law, p. 296.

Chapter 11 CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

CONSEQUENCES OF RIGHTS OF STATES There are two (2) very important consequences of the rights or States: (1) Firstly, States may enter into treaties and other interstate agreements; (2) Secondly, once the rights and the treaties are violated, sanctions may be found both in peaceful and forcible remedies. This chapter deals with treaties; the following chapter (Chapter XII) will deal with the peaceful and forcible sanctions in public international law. DEFINITION AND SYNONYMS FOR TREATIES r

Definition — A treaty simply defined is an agreement between or among States which generally governs their mutual conduct with one another. More accurately, it is an international agreement embodied in a single, formal instrument or two or more related instruments (whatever be their particular name, title, or designation, whether the name given be treaty, convention, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minutes, memorandum of agreement, modus rirendi, executive agreement, or any other appellation) made between entities both or all of which are subjects of international lawpossessed of international personality and treaty-making capacity. 490

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES 491

and intended to create rights and obligations, or to establish relationships, governed by international law. Treaties are entered into only by signatory States or by international organizations which are generally recognized by one another. 1

Synonyms — Various appellations have been given to "treaties." (see Draft Articles on the Law of Treaties, International Law Commission, 57 A.J.I.L. 197). For instance: (1)

"pact" — a special treaty which is formally sentimental;

(Example: Treaties of Guaranty where the signatories agree to ensure certain rights, such as the perpetual neutralization of Switzerland — November 20, 1815.) (2) "convention* — this is more or less an informal treaty dealing with specific subjects: sometimes it does not even require ratification; 2

(3) "agreement," "arrangement," "accord" — conventions on administrative or technical matters; (4) "concordats" — agreement entered into by the Pope (as head of the Church) with various Chiefs of States (NOTE: since they deal generally with religious matters, many writers do not refer to them as treaties); (5) "declarations" — these are formal reciprocal agreements which may deal with: (a)

the rights and privileges of the national of a State;

or (b) principles in accordance with which States propose to act; or (c)

grounds for mutual action on the part of States/

1

Note: Two special kinds of declarations are the following: (a) "rawsEsoJas"— declarations that an error in etiquette or in the draftsmanship of a treaty should not be considered as a precedent;

'Fitzmaurice, Report on the Law of Treaties to the International Law Commission. 1956. % ''See Wilaon and Tucker, International Law, p. 206. ^Wilson and Tucker, op. eit., p. 209.

492

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(b) lettres reuersales — declarations that an alteration in ceremonial practices is being made only as an exception to the general rule. (6) "protocol" — this may refer either to a supplemental treaty or to an amendment to a treaty. NOrE.(^Re^i^a_tionjmeans a unilateral statement made by a State, when sjgning. ratifying, acceding to, accepting or approving a treaty, whereby it purports to exclude or vary the legal effect of some provisions of the treaty in its application to that State. (See Draft Articles on the Law of Treaties, op. cit.). Several TEMPORARY^ajrree meats may be resorted to before a final treaty is made. Among the names given to such temporary stipulations are the following: JrD "Memoire" or "memorandum" — a diplomatic note either signed or merely initialed by the negotiators containing thejaalient points or facts of an affair; 0

(2) "proposal — a diplomatic document containing an offer made by one State to another to settle a controversy; (3) "note verbal" — an unsigned document which contains a resume of _a diplomatic conversation; (4) "exchange of notes" — the exchange of diplomatic correspondence prior to arriving at an agreement; 4

(5) "gentlemen's agreement" — a temporary agreement on the conduct or course of action to be followed, and arrived at thru an exchange of diplomatic correspondence. (Note: generally no ratification is required); 5

(6) "modus vivendi" — a temporary arrangement made in order to bridge over some difficulty pending a more detailed and permanent settlement; (7) "compromis d'arbitrage" — preliminary agreement that sets forth the controverted issues and arranges for the settlement of the case by a board of arbitrators; 6

'See Fenwick, International Law, p. 191. 'Wilson, Handbook of International Law, p. 186. 'Lawrence. Principle* of International Law, p. 568.

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

(8) "punctationeB" pnspH t.fftaty; (9) "pactum de contrahendo" —<£greemeiit<>n the itejns_pr a proposedjreaty. ^ =

During international conferences, there are several incidental stipulations. Among the most popular forms are the following: ( 1 ) "process verbal'' — this is the official record of the daily proceedings of the conference, and of the provisional conclusions that have been arrived at; it is usually signed by the duly accredited delegates or representatives of the States present at the conference;' ( 2 ) "recez" — the act of an international conference or congress in reducing to writing the conclusions of its deliberations on a particular subject; this is done prior to final adjournment; (3) "final act" tor "protocol de cloture") — this records the winding-up proceedings in the conference: usually recommendations are herein set forth; ( 4 ) "general act" — the document enumerating the treaties agreed upon in an international conference: this document becomes itself a treaty, and all the other treaties are annexed to i t . 8

Misrellq.nj>njis

terms

included:

(1) "cartels" — agreements made between belligepelits* regulating intercourse during war. (Example: an agreement concerning the mutual exchange of prisoners of war); 9

( 2 ) "sponsions" or "agreements sub sperati"—agreements entered into by unauthorized representatives or by delegates in excess of their authority;' 0

(NOTE: Upon the other hand, the phrase "full powers" has reference to a formajjngtrurnent issued by the competent authority o£_a_S±ale, authorizing a given person tcTrepreient the State, e i ther for the purpose of carrying out ail the acts necessary for concluding a treaty, or for the particular purpose of negotiating or

'See Oppenheim. International Law, Vol. I, p. 792. "See SaU>w, A Guide to Diplomatic Practice, Sec. 618. "See Wilson and Tucker, International Law, p. 210. '"Wilson, Handbook of International Law. p. 286.

404

I N T E R N A T I O N A L L A W A N D WORLD POLITICS

signing a treaty, or of executing en instrument relating to a treaty. (Draft Articles on the Law of Treaties, op. cit., Art. 1 (21). (3) "Btajute," "charier," "covenant," "constitution" — terms used in connection with the organic rules or constitutions of international bodies (e.g.. Statute of the International Court of Justice; Charter of the UN). NOTE: Generally, the specific name given to an interstate agreement is of no significance; sometimes the appellations depend on the custom of the chancery concerned; carelessness in draftsmanship may even be the root cause of a specific terminology. If at all any importance is attached to the name given, it is so not because of international law but because of municipal legislation. For instance, it has been said that in relation to "treaties," there are two (2) kinds of "executive agreements"; (1) the executive agreement which is purely an executive act affecting external relations and independent of or without legislative authority (this may also be termed "Presidential Executive Agreement"); (2) the executive agreement entered into by the President in pursuance of Acts of Congress (this is called "CongressionalExecutive Agreement"). While the first type needs no congressional sanction, the second kind obviously does." U S A F F E Veterans, Inc. v. Treasurer of the Phil. L-10500, June 30, 1959 FACTS: President Franklin Delano Roosevelt of the United States, foreseeing a Pacific War, called into the service of the U.S. Armed Forces, the organized military groups in the Philippines. For incidental expenses, the U.S. Congress appropriated and transferred to the Philippine Armed Forces over P570,000,000. Of this amount, P35,000,000 remained unexpended by December, 1949. Because the Philippines needed the funds, President Elpidio Quirino thru Ambassador Carlos P. Romulo proposed to the U.S. Government the retention of the funds by the Philippine Government as a loan repayable in ten yearly installments. An agreement was

"See Hyde. International Law. Vol. I I . p. 1406.

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

496

entered into on November 6,1950 to this effect — the RomuloSnyder Agreement signed in Washington. Since then. Congress without formally ratifying the Agreement, appropriated funds for the yearly installments but in 1954, the USAFFE Veterans Association, Inc., in behalf of Filipino war veterans, sued for the annulment of the Agreement on the ground inter alia, that under the Constitution a treaty ought to be ratified by the Senate. Issue: Is the Agreement binding on the Philippine Government? HELD: Yes, the Agreement is binding on the Philippine Government. Firstly, it is possibly not a treaty, but merely an executive agreement of the first kind (Presidential Agreement) requiring no Congressional approval; secondly, granting that it is a treaty, still the Act of Congress' appropriating the needed funds for the yearly installments, constitutes a ratification of the Agreement — a ratification which places the question of validity out of the Court's reach, inasmuch as in the instant case no constitutional principle was invoked to restrict the plenary power of Congress to appropriate funds — whether in payment or not of a loan. (Incidental Note: It may be said that on the part of the U.S. Government, the Agreement was NEVER submitted to the U.S. Senate for ratification.) 2

Central Bank v. Calnag L-12361, Sept. 28,1957 QUESTION: If as a result of informal negotiations between a representative of the Central Bank on the one hand and the American Ambassador and other U.S. representatives upon the other hand, an agreement is arrived at — one that would simply provide for housing accommodations of American citizens in the Philippines, will said accord be considered a treaty or a formal agreement? HELD: No. In view of its informel character and purpose, this accord cannot be considered, a formal agreement between the two governments. Certainly, not all agreements can be considered treaties requiring Senate approval.

"Senate Resolution No. 15 (3).

IN f E R N A T I O N A L L A W A N D WORLD POLITICS

People v. Koh M a y 29,1959 OUESTION: In a prosecution for an alleged violation of a Central Bank Circular, does the prosecuting officer have to prove that the Circular has complied with all pertinent international agreements binding upon our Government? HELD: No. The reason is obvious, in view of the usual certification by the President and by the Central Bank to the effect that the Circular accords with said international agreement. It is presumed that the officials concerned know whereof they speak, and that they have performed their duties properly. Indeed it is incumbent upon the defendant to prove the existence of any alleged conflict. y Ichong v. Hernandez L-7995, M a y 31, 1957 QUESTION: Does the Nationalization of the Retail Trade Act violate the U.N. Charter or the Declaration of Human Rights or the Philippine-Chinese Treaty of Amity of April 18, 1947? May a subsequent municipal law amend or qualify a prior treaty? HELD: The Nationalization or the Retail Trade Act (generally granting exclusive rights to Filipinos in the retail trade) does N O T violate the Charter of the U . N . or the .Universal Declaration of Human Rights. The U N . Charter imposes no strict or legal c'dligation on the States regarding the rights and freedoms of their subjects. And the Declaration of Human Rights contains nothing more than a mere recommendation or a common standard of achievement for all peoples and all nations. Members of the U.N. such as Norway and Denmark prohibit foreigners from engaging in retail trade. Most nations enact laws against foreigners engaged in domestic trade. The Treaty of Amity between the Philippines and China of April 18, 1947 has also N O T been violated. The Treaty merely guarantees equality of treatment to Chinese nationals in the Philippines — equality "upon the same terms as the nationals of any country" (except the Parity Amendment in favor of Americans). And even if the Trade Law really infringes on the Treaty, it should be remembered that a Treaty is always subject to qualification or amendment

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

497

by subsequent law. A Treaty may never curtail or restrict the police powers of the State. The disputed law is not the product of racial hostility, prejudice or discrimination. Rather it is the expression of a legitimate desire to remedy a real actual threat and danger to the national economy posed by alien dominance and control of the retail business. Freedom and liberty are not real and positive if the people are subject to the economic control and domination of aliens.

Kensett, et al. v. Chambers 14 H o w a r d 38 FACTS: At a time when Texas had declared its independence from Mexico, and was at war with the latter, a contract was entered into in Ohio, whereby General Chambers of the Texan Army sold a parcel of land in Texas to seven citizens of Ohio. The buyers bought the land deliberately to financially aid Texas in its fight against Mexico. At the time of sale, there was an existing treaty of friendship between the United States and Mexico. The U.S. then had not yet recognized Texas as a State. Long afterwards, when Texas was already recognized and reincorporated as a State in the United States, the buyers sought specific performance of the contract of sale: Issue: Was the sale valid? HELD: The sale was null and void because at the time of perfection there was still a treaty of friendship between Mexico and the United States. The neutrality of the U.S. would certainly be violated by allowing a contract that was intended to aid the Texans. The subsequent admission of Texas into the U.S. is immaterial since a void and illegal contract cannot be ratified by subsequent events. What is vital is the principle that a contract inimical to a treaty cannot be considered legal. In Re Garcia August 15,1961 FACTS: Arturo Garcia, a Filipino citizen born in Bacolod City, studied law in Madrid, Spain and thereafter was allowed by the Spanish government to practice law in Spain. He now

I N T E R N A T I O N A L L A W A N D WORLD POLITICS

applies in the Philippines for permission to practice law in the Philippines, without taking the bar examinations, relying on the provisions of the "Treaty on Academic Degrees and the Exercise of Professions" between the Republic of the Philippines and the State of Spain (signed at Manila on March 4, 1949 and effective on January 5, 1951 upon the exchange of ratification by the contracting parties). Under such a treaty, "the nationals of both countries who shall have obtained degrees or diplomas to practice the liberal professions in either of the Contracting States, issued by the competent national authorities shall be deemed competent to exercise said professions in the territory of the other, subject to the laws and regulations of the latter." (Art. 1 of said Treaty i.Issue: can he practice law here without taking and passing the Philippine bar exams? HELD: No, he has to first take and pass the Philippine bar exams because: (1) it is clear that the treaty refers to Filipinos desiring to practice in Spain, and to Spaniards desiring to practice in the Philippines, not to Filipinos in the Philippines; (2) the exercise of the profession is subject to the laws and regulations of the country where the profession is to be practiced (hence, passing of the bar under the Rules of Court would be required); and (3) the Executive department could not have intended to encroach on the prerogative of our Supreme Court to promulgate rules for the admission to the practice of law in the Philippines. TAX TREATIES As of January 1, 1994, tax treaties with 20 countries are in effect, the latest of which includes that with Sweden (renegotiated) and Italy. In 1990, the tax treaty with India was signed in Manila. This, along with seven other tax treaties, await ratification in the Senate. The RP-Israel Tax Treaty which is still under negotiations held its second session in Manila early in 1990. Upon the other hand, the first round of re-negotiation of the RP-Indonesia Tax Treaty was held in Jakarta in August of the same year. The following is the status of tax treaties as of Jan. 1. 1994:

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

499

Status of Philippine Tax Treaties As of January 1, 1994 Effectivity 1. 2. 3 4. 5 6 7. 8. 9 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20-

RP-Denmark RP-Singapore RP-Canada RP-France RP United Kingdom RP-Pakistan RP-Australia RP-Japan RP-Belgium RP-New Zeland RP-Finland RP-Indonesia RP-Austria RP-United States of America RP-Thailand RP-West Germany RP-Malaysia RP-Korea RP-Sweden RP-Italy

01 01 01 01

January January January January

1974 1974 1977 1978 01 January 1978 01 January 1979 01 January 1980 01 January 1981 01 January 1981 01 January 1982 01 January 1982 01 January 1983 01 January 1983 01 January 1983 01 January 1983 01 January 1985 01 January 1985 01 January 1987 01 January 1990 01 January 1990

Pending Ratification RP-Brazil (RP ratified 29 on

Signed on 29 September 1983

November 28, 1983) RP-East Germany RP-Norway (Norway proposed

17 February 1984 09 July 1987

Protocol signed on May 22, 1989; Norway ratified June 19891 RP-Chile (limited to int'l shipping;

18 July 1988

Chile ratified July 19, 1989) KP Netherlands (Netherlands ratified on November 13, 1989)

09 March 1989

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RP-Spain

14 March 1989

RP-Yugoslavia

21 July 1989

RP-India (India ratified March 1990) C.

Penaing Signature

Concluded on

RP-Romania

01 January 1983

RP-Sri Lanka

10 June 1983

RP-Nigeria D.

12 February 1990

27 September 1985

Under Negotiations

Last Session

1.

RP-Switzerland

November 509, 1979 in Berne (4th session)

2.

RP-Mexico

September 28 — October 2, 1981in Mexico (1st session)

3.

RP-Saudi Arabia

February 24-28, 1989 in Riyadh (2nd session limited to international air transport)

4.

RP-Israel

January 29 — February 1, 1990 in Manila (2nd session) July 24-27, 1989 in Jerusalem (1st session)

E. 1.

Re-negotiation RP-Indonesia

Last Session August 21-23, 1990 in Jakarta (1st session)

THE DISPUTED KURIL ISLANDS Russian President Boris Yeltsin, in a December 1992 decree, proposed that foreigners be allowed to lease land on the disputed Kuril Islands, an idea likely to create renewed friction between Russia and Japan. The two countries both claim the Kuril Isands located off the northern tip of Japan and seized by the Soviet Union at the end of World War II. The 50-year old jurisdictional dispute has prevented the two countries from signing a peace treaty formally ending the war, and has kept Japan from giving large-scale economic aid to Russia. Yeltsin's decree would allow regional authorities on the Kuril Islands to lease land to foreign invetors for up to 99 years.

CONSEQUENCES OF RIGHTS: ENTRANCE I N T O TREATIES

501

Meant to encourage economic development on the disputed Tour eastern Kuril Islands, the decree would set up a special economic zone on the entire Kurils chain including the four southern islands claimed by Japan. One resultant effect: the companies investing in the islands woud be offered significant tax breaks and other advantages. Tokyo has refused to grant Moscow significant economic aid until it hands back the four southernmost islands, known in Japan as the Northern Territories, which Soviet soldiers seized in the final days of World War I I . In a recent move, Russian Pres. Yeltsin, in a visit to Japan during the first week of October 1993 indicated Russia might return two of the four islands disputed. ANTARTIC TREATY SYSTEM This refers to an international legal system based on the Antartica Treaty of 1959, which holds in abeyance the territorial claims by States to portions of the Antartic continent and consigns the continent to be used only for peaceful purposes. (Bledsoe & Boczek, The International Law Dictionary, 1987 ed., p. 140). ARCTIC REGION As the north polar region contiguous to the U.S., the then Soviet Union, Canada, Norway, Denmark (Greenland), and Iceland — claims to portions of the Arctic — are based upon discovery, the sector theory (which draws meridian lines from the pole of the farthest extremity of the contiguous State's land mass), and such concepts as continuity of the continental cablehand and contiguity (proximity of the aforementioned States to portions of the foreign wastes). (Blesoe & Boczek, The International Law Dictionary, 1987 ed., pp. 141-142, 152). THE DOWNING OF KAL FLIGHT 007 ON SEPTEMBER 1,1983 The K A L flight number 007 services a route from New York to Seoul with a stop in Anchorage/Alaska. From there to its final destination in Korea it follows a path just outside Soviet territory, for the entry of which it therefore does not hold a permission

INTERNATIONAL LAW AND WORLD POLITICS

under an international treaty. After its start from Anchorage Airport, the Boeing 747 flying this route on September 1, 1983 strayed off its projected path to the north and drifted into Soviet air Bpace. It overflew the tip of Kamchatka peninsula as well as the Kurile Islands and returned into international air space over the Sea of Okhotsk; the aircraft entered Soviet territory anew over the island of Sakhalin, which is a Soviet "Non-Free-Flying Territory" closed to all international air traffic and as such marked on the maps employed by pilots. Soviet fighter jets had been tracking the plane from its first intrusion into Soviet airspace for two and a half hours when the aircraft was downed by an anti-aircraft missile filed by one of the Soviet interceptors. At this point, the Korean airliner was about to definitely leave the Soviet airspace; it had veered off the projected route by about 700 kilometers. (Ingrid L. Jahn, "Applying International Law to the Downing of Korean Air Lines Flight 007 on September 1, 1983," German Yearbook of International Law, Vol. 27, 1984, pp. 444-445). Between the parties concerned (i.e., the Soviet Union, South Korea, as well as the various intelligence services listening in on the radio communication between the planes involved and ground installations), it remained in dispute if and in what m a n n e r the Soviet authorities had undertaken sufficient efforts to make the Korean plane aware of its intrusion in ordr to effect its landing at a Soviet airport as a means of avoiding its destruction and the resulting death of all its passengers. It seems certain, however, that should such Soviet attempts have been made, the plane's crew remained totally obvious to them continuing in a straight tine on the route which led to their end. More important perhaps is the lack of any certain insight into the causes for the plane's digression, which took it deep inside Soviet territory. Western sources have mainly raised three possibilities: a (highly improbable) failure of the aircraft's navigation systems; human error in programming the navigation computer; and intentional intrusion on a fuel-saving short-cut. The Soviet Union on the other hand to this day charges that theKorean airliner was on an intelligence gathering mission over highly sensitive Soviet strategic facilities giving the Soviet Union the right to stop the plane by whatever means after it had ignored repeated orders to land. Moreover. Soviet authorities insist, that they had mistaken the Boeing for an American military reconnaisance plane of the type RC-135 which.

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

as confirmed by United States officials, operate in the same geneal area. The ICAO's investigation did not unearth any conclusive evidence permitting to definitely rule out a possible confusion on the plane's non-military charater, even though American sources insist, that the Soviet fighters could not have had any reasonable doubts about the plane's true identity because the Soviet pilots were too close to downed Boeing. On the other hand, there is also "no evidence that complete visual identification procedures were employed." Given that the Soviet Union violated international law, that country is liable to pay damages in applicaton of the "principle of international law, and that any breach of an engagement involves an obligation to make reparations." It is disputed, however, whether that breach per se consitutes a case of state responsibility, or whether, additionally, it must have been the result of either an intentional or a negligent action on thepart of the violator of international law. This distincition is of importance here, since the Russians claim to have the jet liner was Ilying without the internationally required lights. Neither State practice nor the literature or case law present a unanimous answer on thispoint. The International Law Commission during its deliberations on a draft for a Convention on State Responsibility after much debate decided not to incude intention or negligence as prerequisite for State responsibility. This, as well as other signs, indicate a tendency in international law away from the older view which did insist on either intention or negligence. However, independent of how one resolves this dispute, the Soviet Union remains liable, since, as the ICAO-Report confirms any error of the Soviet pilots regarding the nature of the plane could have been avoided by employing proper visual identification procedures. There can be no doubt that in view of the very grave consequences any mistake on the part of the pilots to assure certain identification, for which there was ample opportunity given the very long period of tracking prior to the attack. Thus, even if Soviet authorities acted bona fide when deciding the destruction of the plane, they still acted negligently for failing to properly identify the plane. (Jahn, supra, pp. 457-548). As a result of the KAL-incident, the ICAO member-States, on May 11, 1984, approved an amendment to prohibit the use of weapons against civilian aircraft (i.e., Bulletin of Legal Developments, Vol. 19 [1984], 112, and LAS Vol. 23 [19841, 705 sea).

INTERNATIONAL LAW AND WORLD POLITICS

504

TREATY VIOLATIONS IN INTERNATIONAL T R A D E Structures and organizations such as the General Agreement on Tariffs and Trade ( G A T T ) and the United Nations Conference on Trade and Development ( U N C T A D ) should govern more effectively in respect of the reciprocal rights and obligations of their member-countries. In this connection, member-countries should be made to observe their obligations more dutifully as such observance redounds to the common good of all member-countries. Sanctions or penalties should be imposed unreservedly on any erring member-country. In this way, the tendency to disregard existing agreements or arrangements is thwarted. Structures and organizations should pursue their goals without preference or partiality towards any bloc or pressure group or country. Otherwise, their effectiveness as instruments for the promotion of trade on a free and multilateral basis becomes suspect.

y ^ C l J I f i S I F K J A T r O N O F TREATIES JJJ— From the viewpoint of parties thereto (a)

bipartite (two signatories);

(b>— tripartite (three signatories); and (c)

multipartite (more than three signatories).

13

(2) From the viewpoint of who should shoulder the obligations-^^' ' " (a)_ unilateral (only one signatory is bound); (b]_ bilateral (the two signatories are responsible); (c)

trilateral (three signatories are bound); and

IdJ^ multilateral (four or more or all of the signatories are given certain obligations). ^J3TV"- From the^viewpoin,t r,C prp«jprirp nr Jim in i nf rrrfiHitifrns _ia) (b)

l3

conditional (either suspensive or resolutory); and unconditional.

See Kelsen, Principles of International Law. p. 317.

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES-' 506

ESSENTIAL REQOtSfTES FOR A V t t J D TREATY The following are the essential requisites for a valid treaty: ^(1) the parties must have the capacity to contract (fully sovereign States and international organizations have such capacity); S(2) the agents must be fully empowered or competent to act onjjehalf of the States represented; (3) the parties must freely give their consent (in a treaty of peace, there is always undue influence or intimidation: thiB is only natural, hence duress on this occasion should not invalidate the consent-that has been given); 14

(4) the object and subject matter must be in conformity with the principles of international law, and thus, be within the commerce of nations; and '^(5) the treaty must be properly ratified in accordance with the constitutional processes in the various States concerned. 11

STEPS IN TREATY-MAKING The following are the salient steps in the process of treatymaking: (1)

diplomatic negotiations;

signing of the treaty by the representatives (the signatories are sometimes referred to as "ambassadors extra-ordinary and envoys plenipotentiaries" and are given "full powers"); 19

(3) ratification of the treaty by the constitutional organs of the respective States (this is really more important than the signing: when ratified, the treaty, unless otherwise provided for, generally retroacts to the time of the signing insofar as States are concerned; it becomes effective upon the respective nationals upon proclamation or as prescribed by municipal legislation. Informal ratification is sometimes referred to as "acceptance." Ratification may be made 17

"Kelsen, op. cit., p. 326. "See Wilson and Tucker, International Law, p. 219; Fenwick, Interna-

tional Law. p. 331. '•See Kelsen. op. cit., p. 327. "See Fenwick, International Law, p. 334.

INTERNATIONAL L A W A N D WORLD POLITICS

506

with or without reservations: the reservations, however, must be compatible with the object and purpose of the treaty or convention; " 1

(4J—-exchange of the ratification instruments or deposit with the government of one of the contracting parties or with an organ of an international organization (the depositary is then obliged to notify the other contracting parties); and 19

(§1— Registration with, and publication by, the Secretariat of the United Nations. This requirement under the Charter applies to treaties concluded by members with members or with nonmembers. But the Charter does not declare an unregistered treaty to be invalid; it provides only that an unregistered treaty shall not be considered as valid by the organs of the United Nations, such as the General Assembly, the Security Council, and specially the International Court of justice. Otherwise stated, an unregistered treaty may not be invoked before such organs. If a member persistently violates this obligation to register, it may possibly be expelled under Art. 6 of the Charter. 10

21

72

ACCESSION TO TREATIES Accession is the process whereby a non-signatory Stale later beeomea u party to a treaty: (1) in all its provisions (in which case the process is termed "accession proper"); (2) or in some of the provisions (in which case the process is called either "adhesion" or "adherence"). Accession and adherence can be possible only if the treaty expressly allows the same." Example: The N A T O Treaty or April 4, 1949 states in its Art. 10: "The Parties may, by unanimous agreement, invite any other European State in a position to further the principles of this Treaty

'"Advisory Opinion, International Court of Justice. Reservations to the Convention on Genocide, May 28. 1951. Kelsen, Principles of International Law. p. 334. '•"Art. 102. UN Charter. " A r t . 102, No. 2, UN Charter. Kelsen, Principles of International Law, p. 340. "Kelsen, Principles of International Law, p . 340. 19

23

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

and to contribute to the security of the North Atlantic area to accede to this Treaty." The conclusion of a treaty may be differentiated from accession or adherence to it in the following ways: (1) In the conclusion of a treaty, there is an opportunity to influence the contents of the treaty by negotiation; this is absent in the case of accession where the only alternatives are submission or refusal. (2) In the conclusion of a treaty, all the contracting parties must signify concurrence; in accession, even if one of the parties does not like the treaty any more, the acceding State may still join, so long as the clause on the accession IB valid. 24

Approbation of a treaty simply means the act by which a nonsignatory State, without becoming in any way a party to a treaty, assumes a favorable attitude toward its provision." FUNDAMENTAL PRINCIPLES CONCERNING TREATIES There are at least two (2) fundamental principles governing the application and enforcement of treaties: ^ \ ) llL^^^acta sjmj^ewanda" (treaties muBt be observed in good Faith) (In other words, treaties have a binding effect, for by means of them rights and obligations are established.) " If a treaty is contrary to a signatory's national constitution, the international legal order demands faithful compliance with the treaty, to avoid international embarrassment." If necessary, the State concerned must even modify its national legislation and constitution to make it conform to the treaty. * It is rather regrettable that in an obiter dictum in the Ichong v. Hernandez Case, L-7995, May 31, 1967, the Philippine Supreme Court had to remark that a treaty is always subject to qualification or amendment by a subsequent law 2

2

"See Kelsen. op. cit., pp. 340-341. '''See Wilson and Tucker, International Law, p. 218. "Kelson. Principles of International Law. pp. 96, 314. See Polish Nationals in Danzig. Decision of the Permanent Court of International Justice, Pub. Ser. A/B, No. 44, p. 24. "Exchange of Greek and Turkish Population Case, Decision of the Permanent Court of International Justice. Publ. Ser. B, No. 10, p. 20. 17

INTERNATIONAL LAW A N D WORLD POLITICS

on the ground that a treaty may never curtail or restrict the police powers of a State. ^ ( 2 ) "rebus sic stantibus" (a vital change of circumstances ows a State to unilaterally withdraw from a treaty). N O T E : The rationale of the principle eeeme to be this: if the change in circumstances so affects a signatory-State that for it to continue to comply with the treaty provisions would seriously jeopardize its own existence, a withdrawal is allowed because its fundamental right to existence is S T R O N G E R than its duty to comply with the treaty. It is alleged further that if such a principle is recognized in the national order, it should also be allowed in the international sphere. For instance. Art. 1257 of the Civil Code of the Philippines states that "When the service has become so difficult as to be manifestly beyond the contemplation of the parties, the obligor may also be released therefrom, in whole or in part." Opponents of the principle, upon

the other hand, argue:

(a) that the analogy with the principle in national law is wrong because in the national order, an impartial authority (a court of justice) is established to decide the question of whether or not there has been a vital change in circumstances; whereas in international law, the parties feel themselves competent to answer the question, (b) that the precise function of a treaty is to stabilize legal relations* between States in the "stream of changing circumstances"; therefore, to consider a treaty abrogated simply because of "changing circumstances" is to render superflous the need for i t . H

QUERY: Is the principle of rebus sic stantibus a rule of international law? ANSWER: Although the doctrine was rejected by the parties to the Treaty of Paris in the London Conference of 1871, and although up to the present, "no international tribunal has unreservedly confirmed the existence of this rule," still by I M P L I C A T I O N the decision of the Permanent Court of International Justice in the Case of the Free Zones of Upper Savoy and the District of Gex affirmed the existence of the rule, but denied its applicability in the suit before it because

"Kelsen, Principle* of International Law, p. 369.

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

509

France failed to prove "an essential change of circumstances." If at all the principle can be admitted, it is understood that: (a) the change must be so substantial that the foundation for the treaty must have altogether disappeared; (b) the change must have been unforeseen or unforeseeable at the time of the perfection of the treaty; (c) the change must not have been precipitated by the State invoking the principle; (d) the doctrine has to be availed of within a reasonable period after the taking place of the change; (e) the duration of the treaty must have been indefinite; and (0 the doctrine must not have any retroactive effect, i.e., it must not adversely affect treaty provisions that had already been complied with prior to the essential change in the situation. 30

REVISION OF TREATIES By the revision of a treaty is understood the mode of changing its contents to adapt it to changing circumstances. Art. 19 of the Covenant of the League of Nations provided that "The Assembly may from time to time advise the reconsideration by Members of the League of treaties which have become inapplicable, and the consideration of international conditions whose continuance might endanger the peace of the world." It should be noted, however, that while this provision authorized the League to give advice on what treaties ought to be reconsidered, it had no power by itself to revise treaties. Parenthetically it may be mentioned that this Article 19 was never applied. 31

32

The Charter of the UN has no express provision on the matter, but by implication from Art. 14 thereof, the General Assembly may make recommendations on the revision of treaties. 33

"See Kelsen, Principles of International Law, pp. 358-360: Fenwick, International Law, pp. 354-355; Wilson and Tucker, International Law, p. 222, Brierly. The Law of Nations, p. 245. "KelBen. op. cit.. p. 360. "Kelsen, op. cit., p. 361. "Ibid.

INTERNATIONAL LAW A N D WORLD POLITICB

510

The renewal of a treaty means the prolonging of its life as such; *itB reintegration means its incorporation in a new or other treaty; and its reconfirmation simply refers to' an express statement in a new treaty that a previous treaty whose validity might have become doubtful still remains valid and binding. 3

M

INTERPRETATION OF TREATIES Generally, the rules for the interpretation of contracts are followed in the interpretation of treaties. Thus, specific provisions prevail over general ones; unequal provisions may be interpreted strictly by the party suffering the greater burden; intention and spirit should outweigh the literal wording" and its intention may possibly be obtained by an inquiry into the negotiations prior to the treaty. Interpretation by the national courts of one State cannot bind the other, but that made by an international tribunal ought to have a conclusive effect. Ifi

37

1

39

40

^CAUSES FOR THE TERMINATION OF TREATIES Treaties may: ^1) v

•

expire — (a)

because the term may have ended

(b) because a resolutory condition has occurred (c)

because the purpose has been achieved

(d) because the objective has become an impossible thing to accomplish (2)

be dissolved —

(a) extinct

because a party to a bipartite treaty has become

"Oppenheim, International Law. Vol. 1, pp. 358-359. "Ibid. Kelseii. op. cit., p. 321. "Wilson, Handbook of International Law, p. 193. Fenwick, International Law. pp. 342-345. ^Kelsen, op. cit.. p. 321. See Tunis-Morocco Nationality Decrees Cane, P.C.I.J. Pub. Ser. B. No 4. pp. 29-30. M

M

4U

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

511

(b) because of mutual withdrawal or cancellation (c) because of a unilateral denunciation (but only if such a right to unilaterally denounce is given in the treaty) (d) because of a unilateral act of termination if the other party has violated the terms of the treaty (e) because of "rebus sic stantibus" (f) because of a subsequent change in status of one of the parties ( g ) because war has broken out (however, in some cases the treaties may only be suspended; in still other instances, the treaties may be specially applicable only DURING the war) (h) because of the conclusion of a subsequent inconsistent treaty (Be it noted, however, that in case of conflict between the UN Charter and subsequent treaties between or among States, the former prevails. 41

(3) be annulled or voided (a) because one of the signatories to the treaty was at the time of perfection incapacitated (b) because error or fraud (but not force, pressure, or undue influence) may have vitiated the consent of the contracting parties (c) because the object of the treaty is contrary to the principles of international law (d) because the subject matter of the contract is outside the commerce of nations. 42

QUERY: May a UN Member unilaterally withdraw from the UN? 43

ANSWER: While a UN Member may be suspended or expelled by the General Assembly upon the recommendations of 44

"Art. 103, UN Charter. "See Wilson and Tucker, International Law, pp. 223-225; Fenwick. International Law, p. 350; Kelsen, Principles of International Law, pp. 354-358. "Art. 6, UN Charter. "Art. 6, UN Charter.

512

I N T E R N A T I O N A L L A W A N D WORLD POLITICS

the Security Council, it cannot legally unilaterally withdraw from the Organization: in this sense, it would always be bound by the UN Charter (which by itself, is a multipartite and multilateral treaty). Be it noted however that Indonesia withdrew on Jan. 20, 1965, but on Sept. 19, 1966 (after Sukarno had been deposed), the country notified the UN Secretary-General of her decision to resume participation in its activities. On Sept. 26, 1966, the General Assembly took note of the decision, and invited the representatives of Indonesia to take their seat in the Assembly. The representatives entered the Hall amid thunderous applause — a prodigal son had just returned. 45

BAR Give the effect of W A R on treaties between belligerents. ANSWER: In the absence of a specification on the treaty of peace at the conclusion of the war, the following rules prevail: (1) ABROGATED are political, alliance, and commercial treaties. (2) C O N T I N U I N G are treaties designed specifically for wartime (like rules for the treatment of war prisoners and the conduct of the war) and pacta transitaria. (3) S U S P E N D E D are non-political treaties (like the Postal Convention). BAR Give the effect of STATE SUCCESSION on treaties or the extinguished State. ANSWER: If the succession is T O T A L (and the predecessor is completely extinguished) all treaties, political or not, entered into by the predecessor are abrogated, with the exception naturally of transitional provisions (pacta transitoria). If the succession is P A R T I A L , the treaties generally continue to be effective except in case they are inconsistent with the rights of the new sovereignty.

" S e e Kelaen, op. cit.. p 357.

CONSEQUENCES OF RIGHTS: ENTRANCE I N T O TREATIES

513

BAR For a newly-independent State, one which has recently freed or is attempting to free itself from the fetters of colonialism, which maxim, pacta sunt servanda or rebus sic stantibus is more meaningful? Explain. ANSWER: For such a State, the two maxims "pacta sunt servanda" and "rebus sic stantibus" are equally meaningful. The first simply means that the provisions of a treaty or agreement must be complied with in good faith and complete honesty; the second means that a treaty ceases to be binding when an essential or substantial change of the circumstances in which it was concluded has occurred in such a manner that the rationale for the treaty itself has disappeared. It is patently obvious that one maxim complements (and does not contradict) the other, for if the reason for the treaty has indeed ceased to exist, good faith and justice demand an interpretation of its provisions in light of subsequent happenings. Be it remembered, however, that while the first maxim enjoys universal recognition, the other is still regarded as of doubtful international validity.

BAR Name some treaties to which the Philippines is a signatory. ANSWER: (1) The Treaty or General Relations between the Philippines and the United States (July 4, 1946). This Treaty provided, inter alia, for the following: (a) the recognition of the independence of the Philippine Republic by the United States; (b) the grant of diplomatic immunity to the diplomatic officials of both countries; (c) the assumption by the Philippines of all valid and subsisting governmental debts; and (d) the continuation by the U.S. Supreme Court of all cases of Philippine origin that were already pending before that body on July 4, 1946.

I N T E R N A T I O N A L L A W A N D WORLD POLITICS

(2) The Philippine-United States M i l i t a r y Bases Agreement. (March 14, 1947) (See the Chapter on Jurisdiction in this book). (3) The Philippine-United StateB Mutual Defense Treaty. (August 13, 1951, signed at Washington, D.C.) This Treaty provided inter alia, for the following: (a) the "settlement of disputes between the two countries thru peaceful means; (b) the development of their capacity to resist armed aggression; (c) each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes. (4) The Treaty of Peace with Japan (September 8. 1951). (This concluded the last Pacific War). (5) The Southeast Asia Collective Defense Treaty. (The Manila Pact or the SEATO Treaty) (1954, Manila). (See the Chapter on Existence and Self-Preservation in this book). (6) The Convention on the Prevention and Punishment of the Crime of Genocide. (The Philippines ratified the Convention with reservations on June 23, 1950). (7) The UN Charter. (This was signed by the original members of the UN in San Francisco, California on June 26, 1945). (8) The Universal Declaration of Human Rights. (This was adopted by the General Assembly of the UN without a dissenting vote on December 10, 1948). (This, however, is not exactly a treaty.) Some of its provisions follow: (a) All human beings ore born free and equal in dignity and rights. They are endowed with reason and cons-cience and should act towards one another in a spirit of brotherhood. (b) Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinc-

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

515

tion of any kind, such as race, color, sex, language, religion, political or other opinion, national or social gijgin, property, birth, or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional, or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self governing or under any other limitation of sovereignty. (c) Everyone has the right to life, liberty, and the security of person. (d) No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their formB. (e) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (0 Everyone has the right to recognition everywhere as a person before the law. (g) All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to any such discrimination. (h) Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. ( i ) No one shall be subjected to arbitrary arrest, detention, or exile. (j) Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. 46

QUERY Are any of the following acts violative of the Universal Declaration of Human Rights: "Art*. 1-10.

516

I N T E R N A T I O N A L L A W A N D WORLD POLITICS

(a) The Filipino First Policy? (b) The refusal to grant a visa to a Time correspmideni? (c) The refusal of Australia to admit the Filipino husband of one of her citizens? (d) The mass deportation of 600,000 Koreans who have since 1945 been residents of Japan, a great number of whom emigrated there much earlier, to North Korea? ANSWERS: (a) The Filipino First Policy, correctly understood as the grant of preferences to Filipino citizens so long as no vested rights of foreigners are jeopardized, is certainly NOT violative of the Universal Declaration of Human Rights. After all, this is nationalism of the highest degree. While it is true that under Art. 7 of the Declaration, [j|ajl are equal before the law and are entitled without any discrimination to equal protection of the l a w j ^ t i l l a policy granting preference to one's own nationals cannot be said to be arbitrary and discriminatory, if all aliens are classed in the same category. The right of a nation to seek its rightful place in this world, without in the process being unfair to other nations, is implicitly recognized in the Declaration. It ought to be noted, however, that even more important than a "Filipino First Policy" would be a "Philippines First Policy" for in the latter case, it is the country itself, as distinguished from the citizen, that would be given preeminence. (b) The refusal to grant a visa to a Time correspondent would not violate the Declaration if the correspondent in question, in the opinion of our Government, has broken timehonored principles of journalistic ethics — a breach that would result in an unjustified loss of prestige both on the part — of the Government in general and on the part of certain Philippine officials in particular/As a matter of fact, Art. I of the Declaration says that JAyl human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhoodj If a journalist should attempt to subvert the dignity not only of his fellowmen but also of a country, he cannot claim any privilege to enjoy the hospitality of said State.

CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES

517

(c) The refusal of Australia to admit the Filipino husband of one of her citizens, if based purely on racial grounds, is a gross violation of Art. 2 of the Declaration. Decency prohibits discrimination due to differences in color op^race. Moreover, under Art. 16 (No. 3) of the Declaration,/She family is the natural and fundamental group unit of society and is entitled to protection by society and by the State/] To separate a husband from his wife without justifiable ground would be to destroy the family. (d) The mass-deportation of bono fide resident aliens indubitably goes against Art. 13 (No. 1) of the Declaration: ^Everyone has the right to freedom of movement and residence within the borders of each StateJjBesides, these aliens will have to leave their houses and lands behind. Under Art. 17 (No. 2) of the Declaration: "No one shall be arbitrarily deprived of his property." We may, therefore, consider this mass deportation as plain inhumanity of the highest order resulting as it does in unfair inconvenience and financial waste. Sei Fuji v. State of California Advance California Appellate Reports May 5, 1950, p. 154 FACTS: The California Alien Property Initiative Act of 1920 limits ownership and use of property by aliens not qualified for naturalization only to such rights as they may have by virtue of treaties existing between their countries and the United States. Is this Act still valid in light of the UN Charter and the Universal Declaration of Human Rights? HELD: The Act is I N V A L I D because it is in direct conflict with the terms and purposes of the UN Charter and is incompatible with Art. 17 of the Universal Declaration of Human Rights: "(1) Everyone haB the right to own property atone as welt as in association with others. (2) No one shalt be arbitrarily deprived of hiB property." It cannot be denied that the Charter of the UN has become the Supreme Law of the Land in accordance with the United States Constitution, Art. VI, Clause 2.

518

INTERNATIONAL LAW A N D WORLD POLITICS

[OBSERVATION: It would seem that the "rights" enumerated in the Declaration of Human Rights are not really rights that may be enforced before an international or national tribunal, for the Declaration (in itself a mere recommendation) establishes no such tribunal. ' However, several international tribunals have been set up precisely for the enforcement of these rights.) 4

FOREIGN DEBT AND MORALITY Political scientist Joseph S. Nye Jr. (also intelligence adviser to President Bill Clinton) once remarked that many international issues — global debt, for example, resist solution by classical means. He added that international debt put new pressures on governments. It cannot be said that the burden of accumulated debt continues to weigh heavily on lenders and borrowers alike. In this sense, it was hoped that they could grow their way out of the problem. London School of Economics-trained George Soros, author of The Alchemy of Finance, wrote: "International lending knows no equivalent procedure for settling bad debt. There have been many precedents where debts have not been paid in full. Usually, nonpayment has resulted in total default and the situation was normalized only several decades later when the lenders were happy to settle for a few cents on the dollar." In the case of the Philippines, many concerned quarters are batting for a moratorium of the debt payment, a selective repudiation, or even an outright repudiation of the debt. Even our own Jaime Cardinal Sin, Archbishop of Manila, has joined the clamor for "a just and humane solution" to our problem of debt. In the lucid words of His Eminence: "Even as international creditors, especially foreign commercial banks, driven by the hard logic of capital, resist the idea of a debt moratorium in this hour of our national need, we draw hope in the fact that such international bodies as the United Nations are now giving serious

*'See Kelsen. Principle of International Law, pp. 144-145: nee also Ichong v. Hernandez, L-7995, May 31, 1957.

CONSEQUENCES OP R I G H T S ENTRANCE INTO TREATIES

519

attention to t h e problem of Third World indebtedness, and that such countries as Poland a n d Venezuela have both received substantial debt condonations- We are hopeful that many more citizens' groups from the farmers, laborers, urban poor, professional and academic sectors; are taking cognizance of the disproportionate amounts of our budget appropriated for debt servicing and the harrowing effects on our poor. We have hope, therefore, that legislative measures to regulate our debt payments, to distinguish between just and fraudulent debts, and to place the service of our poor above the service of our debtB — may finally be passed." Common sense dictates that our country can only achieve economic growth thru debt condonation by our foreign creditors. Hut should this question of economic growth of the country be always equated with the recurring debt issue? In the opinion of Nobel prize-winning economist James Tobin: "To meet aspirations of an increasing standard of living, we need continuing growth in productivity. That's what people wants, so we need to have government policies that produce it." Contrast this with the notion of Milton Friedman, another Nobel prize-winner for economics: "When the government undertakes to make the rate of economic growth a governmental issue, it ends up doing harm rather than good because it ends up interfering with the choices individuals make. Whatever rate of growth comes out of individual decisions is the right rate of growth." But again, this brings us back to square one. What moral stand should we have apropos to the foreign debt issue? Of course, our (Philippine) foreign creditors would say outright that "a debt non-payment or a moratorium or even selective repudiation" is unacceptable — a violation of international responsibility vis-a-vis international law and .therefore, an immorality on our government's part, a breach of international commitment. Patrick Devlin, author of Morals and the Criminal Law put it succinctly when he defined "punishable immorality" in this light: "Immorality then, for the purpose of the law, is what every right-minded person is presumed to consider immoral." A general principle of law is t h a t a debt Bhould only be paid if it is a 'just' debt. Conversely, if the debt is tainted with fraud, then by all means, said debt should not be repaid. A just debt, we are all cognizant of, is similar to a valid contract — no fraud, no deceit, no involuntariness in t h e entering of t h e contract or agreement, etc.

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Space limitation does not permit an enlargement on the analysis of this special form of responsibility, so that in this connection we shall confine ourselves- to the formulation of a few statements indispensable to the classification of the different types of responsibility: One. The basis of the liability is permissible activity; for the supervention of responsibility no wrong or unlawful conduct is needed. It is sufficient to establish an effective damage and the causal relation between the damage and the activity; Two. Responsibility has to be accepted owing to the increased hazards involved in debt repayment activities. Consequently, liability is extremely strict, i.e., it is absolute of which even the demonstration of force majeure will not relieve. Three. Responsibility is always of a material nature implying reparation, i.e., it entails the reparation of the damage caused only. Four. Responsibility exists only between the State causing the damage and the State suffering it. There are certain deficiencies implied in the classifications. More than anything else, moral responsibility cannot become part of legal responsibility. Morality is a category distinct for the violation of the moral norms and entailing moral sanctions, a phenomenon, therefore, outside the sphere of law. Neither is the term political responsibility fortunate. World politics and law constitute two different social phenomena and although the law brings under regulation also relations of a political nature between the States, there are legally irrelevant relations of a pure political nature. Political responsibility has to be kept apart from legal responsibility in the same way as politics has to be separated from the law. To borrow the words of Professor Karoly Nagy, "it is inappropriate to apply the epithet 'political' to a legal institution, as this would frustrate attempts to distinguish political responsibility from legal responsibility." Neither is the differentiation recognizing material and nonmaterial (so-called political) types of responsibility a safe criterion for segregation. Material responsibility mainly is itself twofold. It may derive from an international delict even from a permitted act, if contractual obligations bind the State to the assumption of such a liability. This is the case, e.g., with damage originating from the

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non-payment of debt. Upon the other hand, material liability often manifests itself not not independently and solely, but as accessory to other forms of responsibility. If, therefore, a line is drawn between material and non-material responsibility there will infallibly be a third, mixed category of responsibility. Thus, the distinction between responsibility, of a material and non-material nature may be maintained, and only the latter should properly be given the designation "delictual" rather than political. According to Prof. Nagy, we may distinguish: (1) Responsibility of an exclusively material nature which may be: a. of delictual origin and b. originating from permissible activities accompanied by ultra-hazards (liability of a contractual nature); (2) Delictual responsibility which may be: a. such as has no material effects; and b. of a mixed character, i.e., the violation of rights is accompanied by damage. In both jurisprudence and moral law, therefore, three (3) interrogatories must be addressed: (1) Has international law the right to pass moral judgment on all matters of debt payments?; (2) If international law ha6 the right of pass judgment, has it also the right to use the weapon of sanctions to enforce debt payments?; and (3) If so, should it use that weapon in all cases or only in some; and (4) If only in some, on what principles should it distinguish? These are questions best left to our government policy-makers. 'PEOPLE POWER' AND HUMAN RIGHTS In the viewpoint of George Segal, "there is a sense in the new pragmatism of the 1990s, that all that needs to be done is to get the people out on the streets, and any tyrant can be disposed." Enthused he: "Was not President Marcos of the Philippines toppled like that in 1986? Did not the dictators of Eastern Europe, including the barbaric Ceausescu clan in Romania, succumb to the power of unarmed, peaceful demonstrators in 1989? Yes, but the counter-examples are also powerful? In 1989, Communist China used its troops to massacre demonstrators right before the eyes of Western television cameras. And even some of those countries who UBed people power to clear out old dictators, soon chose replacements that looked nearly, as incompetent BB their predecessors." (G. Segal, The World Affairs Companion, 1991, p. 52).

INTERNATIONAL LAW A N D WORLD POLITICS

MARCOS AND THE STRASBOURG DECLARATION ON THE RIGHT TO LEAVE AND RETURN This is in response to growing international concern over impediments placed by many countries on the Tree exercise of the right to leave and return, which is guaranteed under Art. 13 of the "Universal Declaration of Human Rights" and Art. 12 of the "Covenant on Civil and Political Rights." While it is submitted that the then Aquino government is opposed to Marcos returning to the Philippines mainly by reason of national security, it is felt that a brief perusal of the Strasbourg Declaration is necessary to find out whether Marcos can avail himself of this declaration's avowed purpose. The declaration's preamble recognizes the fundamental principle, based on general international law, that "everyone has the right to enter one's own country which is indispensible for the employment of all civil, political, economic, social, and cultural rights." The declaration, in its Art. 6 provides that "no person shall be deprived from exercising the right to enter his country" and that "no entry visa may be required to enter one's country." So far, all indications point to the fact that Marcos can invoke the Strasbourg Declaration. But wait, does the declaration admit of any exceptions? A restriction tantamount to an exception to this rule may be had if a question of "necessity" arises. According to Art. 4 (c) of the declaration, "a restriction shall be considered 'necessary' only if it responds to a pressing public and social need, pursues a legitimate aim, and is proportionate to that aim." Art. 4 (d) provides that "a restriction based on 'national security' may be invoked only int. situations where the exercise of the right poses a clear, imminent and serious danger to the State." (This apparently has been the raison d'etre for Marcos's non-entry to the Philippines.) To the same effect, Art. 4(e) provides that "a restriction based on 'public order' shall be directly related to the specific interest which is sought to be protected." As underscored, however, by Art. 4(h), "the burden of justifying any such restriction lies with the State." [N.B.: The body of Pres. MarcoB Was finally laid to rest in his native Batac, Ilocos Norte on mid-Sept. 1993. This WBB realized after the ban on Marcos' return to the Philippines was lifted by the Fidel V. Ramos government.]

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HUMAN RIGHTS AND THE UN The extent of the power of the United Nations Organization to intervene in the affairs of its member-States pertaining to disputes on human rights is awesome. Today, it is generally recognized that a member-State of the UN which engages in practices amounting to a consistent pattern of gross violations of international guaranteed human rights, is not in compliance with its obligations to "promote universal respect for, and observance" of these rights and that, consequently, it violates the UN Charter. For that matter, the UN has sought to enforce this obligation with resolutions calling on specific States to stop such violations and by empowering the UN Commission on Human Rights and its subsidiary bodies to establish procedures to review allegations or violations. Apropos to this is the operation of the machinery created to address complaints of violations of human rights under the auspices of the United Nations. The UN Commission on Human Rights ( U N C H R ) — a subsidiary organ of the Economic and Social Council, and established in 1946 pursuant to Art. 68 of the UN Charter, is charged with the responsibility of developing proposals to implement the human rights ideak advanced in Arts. 55 and 56 of the Charter. At its inception, many member-States of the UN assumed that the U N C H R would be the sounding board for human rights violations. Such did not prove to be the case, as the UNCHR invariably forwarded such complaints to other UN organs. Since the early 1970s, however, the U N C H R has cautiously expanded its activity to include the examination of violations and making recommendations. Nonetheless, the absence of sanction or enforcement powers limits the effectiveness of the U N C H R in this area. INTERNATIONAL HUMAN RIGHTS LAW More than any other branch of international law, international human rights law has evolved in the institutional context of international organizations (these bodies are its principal actors and lawmakers). For one cannot consequently hope to understand the emerging human rights law without studying its relation to and interaction with these organizations. For all intents

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and purposes, the international law of human rights is defined as the law which deals with the protection of individuals and groups against violations by governments of their internationally guaranteed rights, and with the promotion of these rights. More often than not, this branch of the law is referred to as the international protection of human rights or international human rights law. 1

A well-established principle of international law provides that a State may limit its sovereignty by treaty and thus internationalize a subject that would otherwise not be regulated by international law. To cite an example, if one State concludes a treaty with another State in which they agree to treat their nationals in a humane manner and to accord them certain human rights, they have to that extent internationalized that particular subject matter. But as between these two States, neither can henceforth lawfully assert that the treatment of its own nationals to which the treaty applies is a matter that falls exclusively within its domestic jurisdictions. (Advisory Opinion on Nationality Decrees Issued in Tunis and Morocco, P.C.I.J., Ser. B, No. 4 [1923]). Now one branch of international law that can today be defined as the human rights component of the law of war is international humanitarian law. Although modern humanitarian law predates the development of international human rights law and had some influence on it (e.g., Art. 3 of the Geneva Convention of 1949), various provisions of recent protocols mirror the principles underlying modern international human rights instruments. Worth noting is the fact that the derogation clauses of the principal international human rights treaties incorporate by reference the humanitarian law treaties and obligations of the State parties thereto. (Art. 4 of the International Covenant on Civil and Political Rights). Modern international law of human rights thus embraces humanitarian law, attempting to provide at least some protection in peacetime as in war. Meanwhile, guerrilla warfare continues to expose the lacunae in the international humanitarian law of conflicts. It has now become the common currency of contemporary conflicts. The U.S. in Vietnam and the Soviet Union in Afghanistan [have been] examples of how even wealthy, technologically advanced nations cannot defeat well-organized, highly motivated guerrilla groups operating in a territory they know well. (Keth Suter, An

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International Law of Guerrilla Warfare: The Global Politics of LawMaking, 1964, p. 1). To illustrate the point, hereunder quoted is a letter-request written on Aug. 5, 1862 by General Henry W. Halleck (then commander of the Union forces in the West during the American Civil War) to international lawyer Francis Lieber — which, in effect, could easily have been written by an American troop commander in Vietnam a century later, and in the process, iB indicative of the lack of progress in drafting ruleB for the regulation of guerrilla warfare, thus: "The rebel authorities claim the right to send men, in the garb of peaceful citizens, to waylay and attack our troops, to burn bridges and houses, and to destroy property and persons within our lines. They demand that such persons be treated as ordinary belligerents, and that when captured they have extended to them the same rights as other prisoners of war; they also threaten that if such persons be punished as marauders and spies, they will retaliate by executing our prisoners of war in their possession. I particularly request your view on these questions." (Quoted in Telford Taylor, "Foreword" in Leon Friedman, ed., The Law of War: A Documentary History, Vol. 1, 1972, p. xvi). In fine, international humanitarian law is not effectively extended to cover guerrilla warfare because there is insufficient political commitment by the governments, by the NGOs (non-governmental organizations), by the UN Secretariat or by the International Committee of the Red Cross (ICRC). INFORMATION AND HUMAN RIGHTS Until recently, it has been possible to make a clear distinction between the exercise of human rights with respect to freedom and expression and means of communication of ideas, and technology transfer and commercial transactions. (See Jake V . T Knoppers, "Transborder Data Flow Issues and Technology Transfer," Journal of Technology Transfer, Sept. 1, 1984, p. 10). The information age presents the secenario where the exchange of information, research findings, correspondings, books, articles, data films, voice communications, artistic expression, etc., will soon cms national frontiers (be transferred) in the same form

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or format, i.e., digitized pulses. Such exchanges of information will thus be physically undistinguishable from the technology transfers; commercial transactions or transfer economic values, i.e., trade in products and services, (Ibid., p. 11). There is no question that. States have a right to protect the disclosure of security sensitive information to other States and their agents. Similarly, there is no customary international legal obligation on States to trade with each other and a concomitant right is that StateB can refuse to trade with each other. There are also no legal impediments, in the absence of conventional law to control the export and import of data especially of the transborder Data Flor or TBDF to the extent that TBDF is considered a form of trade-in-services. (Ibid.). Provisions, however, in domestic law of a number of countries and in international law that are framed in rather wide terms exist, and that could be considered to govern the transfer of information between States. (Ibid.). For example, Article 19 of the Universal Declaration of Human Rights states "Everyone has a right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and import information through any media and regardless of frontiers." Thus, the Treaty of Rome, the Canadian Charter of Human Rights and Liberties (Art. 2) and the constitutions of a number of countries contain similar provisions. Although principles of human rights, questions of national security, and issues underlying commercial transactions are vastly different if transferred via TBDF, they all take on a similar appearance or form. As the number of individuals with computers is growing geometrically, the exercise of human rights will become inextricably intertwined with TBDF issues and questions of technology transfer. (Kroppers, supra, p. 11). TECHNOLOGY TRANSFER Technologically progress has been made in all spheres of economic activities in the last decades, thus providing a solid potential for improving the well-being of all people. However, the remaining vestiges of alien and colonial domination, foreign occupation, racial discrimination, apartheid and neo-colonialism in

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all its forms continue to be among the greatest obstacles to the full emancipation and progress of the developing countries and all the peoples involved. The benefits of technological progress are not shared equitably by all members of the international community. ( U N General Assembly, 6th Special Session, Doc. A/9556). The application of science and technology in the interests of the economic and social progress of the less developed countries [LDCs] cannot produce the best results unless it forms part of a coherent program of development in the economic, industrial, social and cultural fields." (Decisions of the UN General Assembly, 1967, Resolution 2318 [XXII]. Luckily for us, high technology serves as a buffer to the economic malaise much of the world find themselves entrapped in. Just as microelectronics propelled telecommunications for the last 20 years, the technology of photonics, or lightwave, will spur the telecommunications revolution of the 1990s. In addition to photonics, we will also need increasingly sophisticated software, that technology so vital to tailoring hardware to meet user needs. (John S. Mayo, T h e Telecommunications Revolution of the 1990s," a lecture delivered at the Informationa Communication Institute of Singapore, Sept. 13, 1990). The goal of the telecommunications revolution of the 1990s is determined by the needs of the marketplace. That goal is the ability to have voice, data and images, in any combination, anywhere, at anytime — with convenience and economy. The driving forces of the telecommunications revolution are the marketplace need for greatly enhanced information productivity, and the human desire for telepresence. Information productivity can be achieved by using information efficiently and effectively. And telepresence is a multi-media substitute for travel. These needs embrace such information services as multi-media teleconferencing, distributed computing, remote interactive education programs, high-definition TV and two-way switched video on demand. The enabling technological forces behind the telecommunications revolution are photonics, electronics, software, wireless communications and quality. Photonic processing and photonic switching — combined with photonic transmission — are the central forces of the telecommunications revolution of the 1990s. The other major force is software. And there will also be a software revolution. Software is currently electronicB-based, having evolved with today's computers and computer-based systems. All these "impacts" are geared toward qne goal, the Universal Information Services.''

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High-tech also brings us to the realm of modem armaments. In recent times, Americans have felt proud of their country's technological prowess when Patriot missiles started shooting down deadly Iraqi Scuds. They may not be so pleased to know that, if these Patriots were built today, defense contractors would likely rely on computer parts made in Japan. PROVISIONS IN THE 1967 CONSTTTUTION RE TREATIES The 1987 Philippine Constitution cites two (2) provisions touching on treaties: (1)

Concurrence by the Senate:

"No treaty or international agreement shall be valid and effective unless concurred in by at least TWO-THIRDS of all the Members of the Senate." [Art. V I I , Sec. 21J. (2) Power of the Supreme Court to Declare Treaties Unconstitutional: "All cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard by the Supreme Court en banc, and ... shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations " on the issues in the case and voted thereon." [Art. V I I I , Sec. 4(2)1 4

— oOo —

Chapter 12 CONSEQUENCES OF RIGHTS: PEACEFUL AND FORCIBLE SANCTIONS

PEACEFUL SANCTIONS IN PUBLIC INTERNATIONAL LAW Traditionalists list down.the following as the peaceful sanctions in public international law:

y iiy

diplomatic negotiations

(2)

tender and exercise of good offices

(3)

mediation

(4^

enquiry and conciliation

(6)

arbitration

(6) reference to the Security Council of the UN (7) reference to regional organizations for the peaceful settlement of disputes (8> reference to the International Court of Justice. The UN Charter itseir in its Art. 3 provides: 1

"The parties to any dispute, the continuance or which is likely to endanger the maintenance of international peace and security, shall, fir&ljiLalL seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial setilement, resorTto regional agencies or arrangements, or other peaceful means of their own choice. The Security Council

'See Wilaon and Tucker. International Law. pp. 228-242: Fenwick, International Law. pp. 405-440. 529

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ehell, when it deems necessary, call upon the parties to settle their disputes by such means." 'DIPLOMATIC NEGOTIATIONS Diplomatic negotiations rn.natit.iife foe nmr-PHH hv which States settle their differences via an exchange of views betw-pn Hiplnmatic agencies. Discussions may be oral or written, brief or prolonged'? / T E N D E R AND EXERCISE OF GOOD OFFICES Tender of good offices exists when third party, either alone or in collaboration with others, offers to help in the settlement of__a dispute. When the offer is accepted, there is supposed to be an "exercise of good offices." Example: the tender of good offices by the Security Council in 1947 to settle the dispute between Indonesia and the Netherlands (formerly Holland). MEDIATION In mediation, a third party offers to help with a solution, usually based on compromise (as contradistinguished from good offices," mediation Offers a solution; "good offices" merely brings the parties together). Example. When the UN planned to divide Palestine into two States (one Jewish-Israel; and the other Arab) after the end of the British mandate over the country in 1948, Count Folke Bernadotte, President of the Swedish Red Cross, was appointed Mediator. When he was assassinated in the Jewish sector of Jerusalem, he was replaced by an America^, fJr. Ralph Bunche. who was eventually awarded the Nobel Peace Prize for his task in Palestine. 1

ENQUIRY

\

An enquiry is simply*an ascertainment of the pertinent facts and, issues jn^a dispute. Example: the Security Council appointed

I

'

l

)

See Mavromamatis Palestine Concessions Case. P.C.I.J. Pub. Ser A/2, p.

11. 3

See Coyle, The United Nations, pp, 9^-94.

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a committee to determine the exact facts connected with the Corfu Channel dispute in 1947. CONCILIATION AND ARBITRATION Conciliation is the reference of the dispute to a commission or international body, whoBe decision, however, ia N O T BINDING on the parties; when the decision is final and conclusive on the. parties, the process ig rpfprrpH fe as Arbitration* While there is admittedly no international court for litigation such as commercial disputes governed by private law, arbitration proceedings are not necessarily to be preferred to legal action before the state courts (despite all their advantages). In arbitration, the following considerations are important. Firstly, in many cases, the general conditions of the trade concerned automatically provide for arbitration (e.g., the London Corn Trade Association and other similar organizations). Secondly, if the dispute relates to a standard export transaction, where the sums in dispute are not very substantial and there is no need for confidentiality of the proceedings, court proceedings will not necessarily be more lengthy or costly than arbitration proceedings. But it is essential to check whether a judgment rendered by a foreign court will be recognized and enforced in the plaintiffs home country or in any other third country in which the defendant haa assets that can be seized. AjfeuMfttsavnonetheless, is preferable to_court proceedings in complicated and technical matters jyhere it is essential to have a neutral jurisdiction with arbitrators who are experienced not only in the specific field of business giving rise to the dispute, but who also have a thorough knowledge of international trade practices in general and who may have language skills. Moreover, international conventions generally confer greater international effectiveness upon arbitral awards than upon decisions given by national courts oflaw. But in the matter of settling loan disputes, lenders strongly dislike arbitration. The reason is clear enough. Lenders want to be able to get their money back as soon as possible and for them, arbitration offers the risk of substantial delay if the borrower wants

'See Kcl>en. Principle* of International Law, pp. 360-377.

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to cause delay. Most lawyers for lenders would not want to take that risk. Regrettably, many nations adhere to the rule that an agreement to arbitrate future disputes is not binding and irrevocable. There are certain problems with regard to enforcement which are common both to arbitration and court judgments. For instance, defects in the foreign judgment such as extrinsic fraud or lack of jurisdiction over the person will preclude enforcement in foreign courts, as will lack of due notice and failure to provide an opportunity to be heard. Judgments which are not final will be denied enforcement. In addition, those judgments which do not accord with the public policy of the enforcing State or which are deemed contrary to "natural justice" will be denied enforcement. THE PHILIPPINE CASE AGAINST U.S. WESTINGHOUSE RE BRIBERY CASE INVOLVING THE BATAAN NUCLEAR POWER PLANT In Mid-May 1993, the Philippine government lost a case against the U.S. firm Westinghouse Corp. for alleged bribery regarding the Bataan Nuclear Power Plant^The issue was whether Westinghouse bribed the late President Mareos to get the contract for the construction of the nuclear plant. Thg-jurv. composed of seven men and five women, apparently did not believe the Philippine government's claims. The Philippines has also sued Westinghouse and Burns & Roe before the International Arbitration Court in Geneva for its alleged non-compliance with the contract and fraud because it included the $24 million it allegedly paid as bribe to Marcos in the cost of the contract. 5

Examples: (1) A conciliation committee was set up by the UN in 1946 to solve the Palestine question. (2) Arbitration was effected by the Italian monarch in 1931 to settle the dispute between Mexico and France regarding an island.

''The Philippine Star, "Panel Recommends Filing of Motion Tor Relnai nf Rape Versus Wesunghouee," June 1. 1993, p. 4.

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( N O T E : The arbitral tribunal may consist of one person or may be a collegiate body. Sometimes, by agreement, the arbitrator may be the head of a third State, its Minister (Secretary) of Foreign Affairs, or its Chief Justice. The agreement to submit the matter to arbitration is called a compromis d'arbitrage or a treaty of arbitration. ') 5

"REFERENCE TO THE SECURITY COUNCIL OF THE UN When NO danger to international peace is foreseen, the Security Council may step in only if A L L T H E P A R T I E S to the dispute request its intervention. When there is D A N G E R to international peace, the Security Council intervenes: 6

7

fl)

on its own motion;

(2)

on motion of the General Assembly;

(3)

on motion of the UN Secretary-General;

(4)

on motion by a UN Member; or

8

9

10

on motion by a Non-Member of the U N .

1

( N O T E : In case the Security Council discovers a threat to international peace, it shall make the proper recommendations on the dispute. If the recommendations are not heeded, the Council may take "enforcement actions" under Art. 41 of the Charter). 12

[NOTE: The Security Council actually sets UN policy, although many other legislative bodies ol the United Nations Organizations are involved. By-and-large, however, the UN (consisting of 184 member-States, as of January 1, 1994), decide on the shape and direction of the UN as an institution. Over the last five decades, governments have created a system of UN agencies to deal with the world's most pressing and complicated problems, such as nuclear weapons, disease, malnutrition, environmental degredation and the plight of refugees. The whole UN system employs over

'•'See Kelsen, op. cit.. p. 378.

'Art. 52, UN Charter. "Art. 34, UN Charter. "Art 1 1, UN Charter. "Art. 99, UN Charter. '"Art. 35, No. 1, UN Charter.

"Arl. 35, No. 2. UN Charter. "Art. 39. UN Charter.

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50,000 people who work in New York and Geneva, but also in difficult places such as Angola, Somalia, Cambodia, Afghanistan, the Sudan, and the former Yugoslavia. Over the last year and a half alone, 26 UN staff membere have lost their lives while serving the U N , and some 90 staff members are being illegally detained against their wills by governments and other authorities. (Luis V. Torres, "UN Welcomes Reform Call," Manila Chronicle, Oct. 7, 1993, p. 5). In 1967, there were 9,600 UN peacekeepers? deployed around the globe; today, there are about 90,000 in 17 parts of the world. {The Business Star, "Clinton's U N Speech Will Seek More Caution in Peacekeeping," Sept. 28, 1993, p. 9). By mid-October of 1993, UN peacekeeping has expanded to include more than 1,500 troops, police and civilians to retrain Haiti's army and police; 500 military observers to monitor a ceasfire in Liberia; and a force that coud eventually include 2,500 troops, observers and civilians, to monitor an accord in the central African nation of Rwanda. This is, in addition, to major operations of more than 2,500 each in Somalia and the former Yugoslavia, although a similar-size force in Cambodia is now being withdrawn after completing its mission. (Business Star, "U.S. Pays U N $533M But Still Owes More," Oct. 8, 1993, p. 24). In a speech delivered during the first week of Oct. 1993 to the UN General Assembly, U.S. President Bill Clinton pledged to work with Congress to ensure prompt payment of peacekeeping bills. But he said he was also committed to get the U.S. share reduced "to reflect the rise of other nations that now can bear more of the financial burden [e.g., Japan and Germany). The United States has paid the UN more than half a billion dollars in budget arrears and peacekeeping costs but still owes another $472 million. The cash-starved world body is still owed a total of more than $1.7 billion, including $536 million in regular dues and $1.2 billion for its expanded peacekeeping operatives. The U.S. payments, totaling $533 million, represented $233 million in regular dues and $300 million for the UN's ever-growing field operations. The outstanding U.S. debt consist of $284 million in regular dues and $188 million for peacekeeping. Washington needs 25% of the annual UN budget of more than $1 billion but — as one of the five permanent members of the Security Council — is assessed just over 30% of peacekeeping costs. (Ibid.).} -REFERENCE TO REGIONAL ORGANIZATIONS Under Art. 52 of the UN Charter, regional arrangements or agencies may be established to maintain international peace (thru

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regional action) and to peacefully settle local disputes before referring them to the Security Council. Their activities ought to be reported to the Council. Parenthetically, it should be noted that the existence of these agencies will N O T prevent the Security Council from itself investigating and settling these disputes. Example of such an agency is the OAS — the Organization of American States,, established principally by the Bogota Charter (April 30, 1946). Another example is the O A U — the Organization of African Unity — with the Charter of Addis Ababba. 13

14

SETTLEMENT BY THE INTERNATIONAL COURT OF JUSTICE The International Court of Justice, tentatively proposed in Dumbarton Oaks, was created in San Francisco to replace the Permanent Court of International Justice (which had functioned previously together with the League of Nations). It is governed by the "Statute of the International Court. nf.I11at.ir*>" y?hich has been" incorporated as an integral part of the ITN Charter. Under Art. I of the Statute, "The International Court of Justice established by the United Nations as the principal judicial organ of the United Nations shall be constituted and shall function in accordance with the provisions of the present Statute." Composition The Court consists of 15 members, no two of whom may be nationals of the same State. A person who for purposes of membership in the Court could be regarded as a national of more than one State shall be deemed a national of the one which he ordinarily exercises civil and political rights. If the Court includes a judge of the nationality of one ot th? parties, any other party may choose a person to sit as judge. If the Court does not include a judge of the nationality of the parties, each party may select a person to sit as judge. These extra-judges are known as "ad hoc judges." 15

16

The Court sits at The Hague, the Netherlands. Its 15-judge bench was established to hear disputes among states, which must

"Art. "Art. "Art. "See

54, UN Charter. 52, No. 4, UN Charter. 3, Statute. Art. 31. Statute.

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agree to accept its verdicts. Its judges, charged with administering justice under international lew, deal with cases ranging from disputes over territory to those concerning rights of passage. Term and Tenure of Office The members of the Court shall be elected for nineyears_and may be reelected; provided, however, that of the judgeselected at the first election, the term of five judges shall expire at the end of three years, and the term of five more judges shall expire at the end of six years. The members of the Court shall continue to discharge their duties until their places have been filled. Though replaced, they shall finish any cases which they may have begun. In case of the resignation of a member of the Court, the resignation shall be addressed to the President of the Court (elected together with the Vice-President by the Court itself for three years subject to re-election) for transmission to the Secretary-General of the U N . This last notification makes the place vacant.' A member of the Court elected to replace a member whose term of office has N O T expired shall hold office for the remainder of his predecessor's term. No member of the Court may be dismissed unless, in the U N A N I M O U S opinion of the other members, he has ceased to fulfill the required conditions. Formal notification thereof shall be made to the UN Secretary-General by the Court Registrar (appointed by the Court itself). This notification makes the place vacant. 7

18

19

Following are the members of the Court and the year in which their terms expire: President: Sir Robert Yewdall Jennings, United Kingdom (1994 as president; 2000 term) Vice President: Shigeru Oda, Japan (1994) Taslim Olawale Elias, Nigeria (1994) Jens Evensen, Norway (1994) Manfred Lachs, Poland (1994) Roberto Ago, Italy (1997) Mohammed Shahabuddeen, Guyana (1997)

" A r t . 13, Statute. '"Art. 15, Statute. " A r t . 18, Statute.

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Stephen Schwebel, United States (1997) Mohammed Bedjaoui, Algeria (1997) Nikolai Tarassov, U.S.S.R (now Russia) (1997) Gilbert Guillaume, Prance (2000) Andres Aguilar, Venezuela (2000) Raymond Ranjeva, Madagascar (2000) Christopher Gregory Weeramantry, Sri Lanka (2000) HouTCh osen The members of the Court Bhall be elected by the General Assembly and by the Security Council voting separately and independently." They shall be chosen from candidates nominated by national groups. Those candidates who obtain an absolute majority of votes in the General Assembly and in the Security Council shall be considered as elected. For the purpose of voting for the judges, no distinction is made between the permanent and nonmembers of the Security Council. In the event of more than one national of the same State obtaining an absolute majority of the. votes both of the General Assembly and of the Security Council, the eldest of these only shall be considered as elected. 21

22

Qualifications The judges must possess high moral character, and must "possess the qualifications required in their respective countries for appointment to the highest judicial offices'' OR be "jurisconsults of recognized competence in international law." 23

(NOTE: Art. 9 of the Statute counsels the UN that "at every election, the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the re presentation of the main forms of civilization and of the principal legal systems of the world should be assured.") But as an aside, manuevers in the World Court are regarded as legitimate. Shabtai Rosenne in his book, The World Court, not

"'Arts. 4 and 8, Statute. " A r t 4, Statute. "Art. 10, Statute. " A r t . 2. Statute.

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only rationalizes but also justifies them. He says in part: "It is difficult to see why such bargains shoud be deprecated (except out of an exaggerated regard for legal purism) because both the General Assembly and the Security Council are purely political bodies and it is not expected of them to exclude political considerations when they come to perform the very important function of electing the judges. These diplomatic contacts are also valuable in maintaining the desired professional standards of the Court. Thru them, influential governments are able to discreetly indicate their view that a given candidate is or is not qualified for the duties and there is reason to believe that this, too, is a factor which influences the final outcome of the elections." (Rosalinda L. OroBa, "World Court Manuevering Are Regarded Legitimate," Philippine Star, Oct. 19, 1993, p. 7). Jurisdiction Over States Is Obtained by the Court In contentious litigations and disputes, the Court may obtain jurisdiction in either of two (2) ways: (1) firstly, by "prior_jauififint" given by the States in signing the so-called 'ffiKonal clausef (this is done by making a declaration that "they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court"; the "declaration may be made unconditionally or on condition of reciprocity on the part of several or certain States, or for a certain time"; the declaration shall then "be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court;" * 2

(2) secondly, by "simultaneous consent." Art. 36, No. 1 of the Statute says: "The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force." [•'jurisdiction of the Court The Court has jurisdiction in the following cases:

" A r t . 36, N M . 2 . 3 . 4 , Statute.

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(1) the giving of advisory opinions on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the UN to make such a request. M

(2) contentious cases (legal disputes) (a) clause:

if the consent was made by signing the optional 1)

the interpretation of any treaty;

2)

any question of international law;

3) the existence of any fact which, if established, Would constitute a breach of an international obligation; 4) the nature or extent of reparation to be made for the breach of an international obligation. 26

(b) in the case of "simultaneous consent": "all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force."' 27

SForum Prorogatum' The doctrine of forum prorogatum (or "prorogated jurisdiction") is a principle relied upon in some cases by the International Court of Justice (ICJ), whereby the Court exercises jurisdiction over a case when consent to submit to its jurisdiction is given after the initiation of proceedings in an implied or informal way or by a succession of acts. (Bledsoe & Boczek, The International Law Dictionary, 1987 ed., pp. 289-290). This doctrine was relied upon by the ICJ in the Corfu Channel case (Preliminary Objection, 1948), where it pointed out that although Albania could have objected to the Court's jurisdiction by virtue of the unilateral initiation of proceedings by the United Kingdom, it was precluded from objecting to the jurisdiction after having accepted it in an official letter, following the initiation of the proceedings.

" A r t . 65, No. 1, Statute. " A r t . 36, N o . 2. Statute A r t . 36. No. 1. Statute. 37

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Nevertheless, assent to jurisdiction by subsequent conduct can scarcely be inferred when the respondent State consistently denies the Court's jurisdiction. For unless there is a real and not merely apparent consent, the Court will not accept jurisdiction and the case must be removed from its list — something that has happened at least eight times in the ICJ's history. (Bledsoe & Boczek, supra, p. 290). The ICJ has its seat at the Hague, Netherlands (Holland) in the Peace Palace funded by Andrew Carnegie before World War I, but it may sit elsewhere whenever it considers it desirable. Generally, decisions are made by the full Court, with a quorum of nine being sufficient to constitute the Court. A possibility exists, however, that the parties may ask that their dispute be decided not by the full Court but by a chamber composed or certain judges elected by ballot by the Court and applying a simplified procedure. Accordingly, there are three (3) kinds of chambers, to wit: 1. the Chamber of Summary Procedure, comprising five judges and constituted annually; 2. any chamber of three judges that the Court may form to deal with a given category of cases; and 3. any chamber that the Court may form to deal with a particular case, after consulting the parties regarding the number and names of its members. The case of Delimitation of the Maritime Boundary in the Gulf of Marine Area (Canada/United States of America, 1984) was the first time that use was made of the possibility of referring a dispute to a special chamber. Although the ICJ represents the most progressive institution in securing the rule of law in the settlement of international disputes, its value and achievements remain a matter of controversy. Some 60 cases were filed before the Court in the year 1946-1985. The Court handed down 18 judgments on the merits, ten on preliminary objections, and delivered seventeen advisory opinions. Still, given the condition of the international society within which it operates, the ICJ must be considered mankind's highest effort to date in upholding the rule of international law in world affairs. (Bledsoe & Boczek, The International Law Dictionary, 1987 ed., pp. 299-300).

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ICJ and New Challenges One of the more viable international institutions undoubtedly in toda/s world is the International Court of Justice (ICJ). This status has been buttressed by the fact that striking new areas of law have been introduced. Thus: 1. The case of Aerial Incident of July 31, 1988 [Iran v. United States] (Application filed on May 17, 1989). This involves the international responsibility of the United States for the shooting down of Iran Air Flight 655 by the USS Vincennes in the Persian Gulf during the Iran-Iraq War, when the U.S. was taking an active containment rule in patrolling gulf waters. The legal texts at issue are the Chicago and Montreal Conventions and an undenounced Treaty of Friendship, Commerce and Navigation between the U.S. and Iran. The substance at issue is Article 51 of the UN Charter, the customary international law of self-defense, and the rights of third States to defend their nationals in international waters during hostilities. Found herein is the first superpower as the unwilling defendant. The facts in this case — the conflict in the Persian Gulf in 1988, the use of force, the right of self-defense, the exercise of case, the rights of non-combatants in relation to an armed conflicts, and the laws of armed conflict applicable to civil aviation — are of importance and relevance to matters currently on the world stage. Parenthetically, the law and logic of the UN Charter and customary international law provide refinement of appreciating the rules on the use of force and self-defense under Article 2, paragraph 4, and Article 51 of the Charter. One can only hope that the Court will do justice by a reasoned and careful judgment in this case and that, if that judgment is in fact unfavorable to the United States, the U.S. Government will continue its new and positive attitude and will not then start bashing the Court. It is to be hoped that the U.S. would not then bash the Court indirectly by vetoing any enforcement action in the Security Council, an action which, although technically legal, is obviously of dubious propriety. [See, for example, the reasoning of the Permanent Court in Interpretation of Article 3, Paragraph 2, or the Treaty of Lausanne (Frontier Between Iraq and Turkey), 1925 PCIJ (ser B.) No. 12, at 32 (Advisory Opinion of Nov. 21), concerning the principle of nemo judex in re sua.]

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2. The case of Maritime Delimitation in the Area Between Greenland and Jan Mayen [Denmark v, Norway] (Application filed on Aug. 16, 1988). This case for the first time places squarely before the Court the issue of the relative "entitlements" of landmasees to maritime spaces under the contemporary international law of the sea, when both are island dependencies of relatively distant mainlands and there is an acknowledged disparity in coastal lengths (Greenland and Jan Mayen Island). 3. The case of Certain Phosphate Lands in Nauru [Nauru v. Australia] (Application filed on May 19, 1989). The case raises interesting questions of international accountability for operations and conduct in a trust territory. Nauru is also a "first" as regards redreas sought of a former trusteeship authority for its administration of the economic assets of a trust territory. The elements that pertained to international fiduciary accountability may at last be applied, in a new and wholly unexpected context. 4. The case of East Timor [Portugal v. Australia) (Application filed on February 22, 1991). This raiseB novel, but fundamental, issues of the representation and recognition of States in the context of occupation, and the duty of third States in relation to conquering power. The principal question raised appears to be that Australia should not have agreed to a delimitation w i t h Indonesia with respect to East Timor, since the latter was taken by force and should not be bound by important maritime arrangements entered into with its conqueror. The case bears a curious resemblance to the facts at i s s u e in the arbitral award involved in Arbitral Awards of July 31, 1989, i.e., the elemental fairness of agreements reached by colonial powers and inherited by their successor independent States in the context, inter alia, of the 1982 Convention on the Law of the Sea. In the Arbitral Award case, the principal question presented to the Court concerns the respect due an arbitral award that may have failed to answer all the questions put by the parties to the arbitration. With the current difficult experience of the International Centre for Settlement of Investment Disputes relating to appeals of arbitral decisions, thiB matter bears considerable importance beyond the relatively narrow confines of the arbitration in question. 5. The case of Territorial Dispute [Libya [Chad] (1990 ICJ Reg. 149 [Order of October 26]). This iB a classic post-colonial

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dispute about territorial boundaries. Yet, the case also represents a further refinement of the rule of uti possidetis juris — the vexing and often misunderstood doctrine of State succession to colonial territorial boundaries — which was presented in the arbitration underlying the Arbitral Award case, and with which the Chamber will have to deal in extenso. 6. The case brought by Qatar against Bahrain concerning sovereignty over islands, shoals, and maritime areas. (Application fded on July 8, 1991. [See ICJ Communique No. 91/21 (July 8, 1991). This case brought by Qatar against Bahrain represents fascinating questions of territorial claims, including a maritime boundary purportedly established by the British Government (under a special treaty friendship). In addition, Qatar v. Bahrain appears to involve the scope of the Court's ability to effect a delimitation of maritime areas without specific direction to that effect on the parties. 7. The case of Maritime Boundary [Guinea-Bissau v. Senegal} (Application filed on March 12, 1991). This may be the first delimitation case presented to the Court that concerns the exclusive economic zone alone, independent of the continental shelf or territorial sea. 8. The case of the Passage through the Great Belt [Finland v. Denmark] (Application fded on May 17, 1991). Herein, Finland has objected to the proposed construction by Denmark of a bridge that would not permit Finnish-built offshore rigs to be transported thru the straits from the Baltic to the North Sea. Obviously, brandnew threshhold issues of international law are raised here: not the least of which is the status of straits and littoral states under the 1982 Law of the Sea Convention, the reasonableness of impending structures, the duties of States regarding their own territorial waters, the nature and identity of entities, rigs, and platforms protected under international law, and the propriety of a restraining order in such a case. The Court is, therefore, now continuing full speed ahead on its productive and convincing path toward mastery of the law of the sea. It has already produced, from 1969 to the present day, the only single body of jurisprudence in the area, it will continue to do so and thus redouble and affirm its position. The International Court of Justice, dominant in the field, will clearly remain so.

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Observes Keith Highet, in his editorial commentary at the American Journal of International Law (Vol. 85, 1991 issue): "All this activity is inspite of the impending arrival of the International Tribunal for the Law of the Sea (the 'Hamburg Court*), referred to in Article 287 ( l X a ) of the 1982 Convention and to be established under Annex VI to the Convention, but which obviously must await the entry into effect of the Convention, which could be next year, or the year after, or five years later, or perhaps never. Yet if the Hamburg Court comes into being, what then? Does the extraordinary broad caseload now confronting the International Court of Justice not have strong implications for the other tribunal? Obviously, the Law of the Sea Tribunal will hardly be competing on an even playing field with its older sister, which will have decided a dozen cases over twenty-five years and have solidified its broad and general authority in the interpretation and application of the international law of the sea." The conclusions that can be drawn is the observation that the Court is effectively operating in far more widely spread areas of the world than ever before. For the real work of the Court over the next decade will be the reconciliation of the interests of developing countries with those of the developed countries, and its real constituents a wide range of middle-level powers seeking to resolve or defuse critically important legal problems, usually — although, of course, not always — concerning a boundary. Highet poses the question, thus: "Will we learn by the experience — guaranteed to take us through 1995 — that this constituency of States is perhaps the one that will most frequently use, and be directed by the Court?" Stated differently, "Is this all that bad a result?" Answers he: "Perhaps the correct one for the next decade (is that) [tjhe greater power could not be expected to abide by decisions of the Court in every instance; it is the lesser powers that by definition require the additional strength and protection of the Court, and it is by their participation and willingness to use the Court that new ground is broken, and past prejudices and fears set aside and allayed. The Court, like a phoenix, appears to have emerged from the ashes. It has become a hot court — perhaps even a 'hot bench.' It is positioned, for the first time in its collective seventy-year history, to become the great international judicial institution that its friends and supporters always knew that it could be."

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Advisory Opinion of the International Court of Justice on its Right to Interpret the UN Charter 1950 I.C.J. 4 ISSUE: Can the World Court interpret, upon request of a General Assembly resolution, provisions of the U.N. Charter? HELD: Yes. According to Art. 96 (UN Charter) and Art. 65 (Statute of the International Court of Justice), the World Court may give an Opinion on any legal question, and there is no provision which prohibits it from exercising, in regard to articles of the UN Charter (by itself a multilateral treaty), an interpretative function falling within the normal exercise of its judicial powers. (See also I.C.J. Reports, 1947-1948, p. 61). [Be it noted that in the same opinion, on the contention that the Court could not interpret the specific question asked (namely, whether in the absence of a favorable recommendation by the Security Council, the General Assembly can still admit a candidate State to UN membership), because of its political- nature, the Court said that the question as framed did not possess a political character, rather, it involved an essentially judicial task — interpretation of a treaty proviso. Incidentally, on the main question, the answer was in the negative in view of the explicit provisions of the Charter. (See Chapter on the U.N.).] ffihat the Court Applies in Deciding Cases The Court applies: (1)

Direct Sources of International Law —

(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international customs, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations (e.g., estoppel, prescription, res judicata). 16

(2)

Indirect Sources of International Law —

" A r t . 38. No. 1. a. b, c. Statute.

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(a) judicial decisions (of international tribunals); (b) teachings of the moat highly qualified publicists of the various nations. n

(3) Equitable principles (ex aequo et bono), "if the parties agree thereto." 30

low Decisions of the Court are Enforced The UN Charter says: (1) Each member of the United Nations undertakes to comply with the decisions of the International Court of Justice in any case to which it is a party. 31

(2) If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. 32

Some Decisions of the Court Some of the decisions of the International Court of Justice have been detailed elsewhere in this treatise. A few more landmark ones are discussed hereunder: The Ambatielos Case Decisions of July 1, 1962 and May 19, 1953 FACTS: A Greek shipowner named Ambatielos entered into a contract with the English Government for the purchase of certain ships. Because of alleged failure on the part of England to carry out certain terms of the contract, and because of alleged English court decisions (against him) which violated international law, Ambatielos claimed he had been damaged. The Greek Government sued England and claimed that the

"See Art. " A r t . 36, ' ' A r t . 94, A r t . 94, M

36. NOB. 1, d. Statute. No. 2. Statute. No. 1, UN Charter. No. 2, UN Charter.

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latter was under a duty to submit the matter to arbitration in accordance with the 1886 and the 1926 treaties between the two countries. England upon the other hand, demurred to the jurisdiction of the International Court. HELD: (1) The International Court had jurisdiction to decide whether or not England was under a duty to submit the dispute to arbitration, but had no jurisdiction to deal with the merits of the Ambatielos claim. 33

(2) In a further judgment, the Court decided that England has a duty to submit the matter to arbitration in accordance with the treaties of 1886 and 1926. 34

THE RIGHTS OF U.S. NATIONALS IN THE FRENCH MOROCCO CASE FACTS: Under the provisions of certain treaties, the United States had a most-favored nation clause in connection with its affairs in French Morocco (Treaty between the United States and Morocco of 1836; General Act of AlgecirasoF 1906). Among other things, the treaties provided for consular jurisdiction by the United States in French Morocco. By a decree of December 30, 1948, the French authorities in the Moroccan Protectorate imposed a system of license control in the matter of imports of a number of products indispensable to the Moroccan economy. The United States alleged that the decree affected its rights under the above mentioned treaties with Morocco, and alleged further that no Moroccan law or reaction could be applied to U.S. nationals in Morocco without its previous consent. HELD: (1) French Morocco could impose such a decree without the prior consent of the U.S. Government A N D this is so even if U.S. nationals therein would be adversely affected. HOWEVER, in matters within their jurisdiction, the consular courts of the United States were entitled to refuse to U.S.

"Judgment of July I . 1S62. "Judgment or May 10, 1963.

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nationals the application of the decree (precisely because or the lack of prior consent). (2) The jurisdiction by the U.S. consular courts in French Morocco extended to: (a) civil and criminal suits between U.S. citizens (or persons under U.S. protection); (b) cases brought against such U.S. citizens (or protected persons) insofar as this was allowed by the General Act of Algeciras. (3) U.S. nationals in French Morocco were not entitled to immunity from taxation. (NOTE: On October 1, 1952, French Morocco removed the above-disputed licensing controls on imports). The Nottebohn Case Judgments of November 18, 1953 and April 6, 1955 (I.C.J. Reports, 1955, p. 4) FACTS: Mr. Nottebohn, a German national, settled in Guatemala for 34 years, and became successful in business. In October, 1939, a month after the opening of World War I I , he went to Europe, and in the State of Liechtenstein, he applied for, and was granted, naturalization. He then returned to Guatemala. He retained, however, his family and business connections in Germany. The object of the change of nationality was for him to acquire the status of a neutral national in time of war. As a result of war measures in 1943, Guatemala seized his properties on the theory of the Guatemalan authorities that he really was still a German, despise the naturalization. Nottebohn had to leave the country. In his behalf, Liechtenstein sued Guatemala before the International Court of justice on the ground that the defendant State had treated its naturalized citizen in a manner contrary to international law. The plaintiff State asked for restitution compensation. Guatemala objected to the jurisdiction of the court, and also claimed that it could not recognize the naturalization because there was no genuine connection between Nottebohn and the State of Liechtenstein. HELD: (1) On the question of jurisdiction:

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The Court has jurisdiction (Judgment of Nov. 18, 1953). (2) On the intrinsic merits of the claim: Liechtenstein cannot put up an international claim on behalf of Nottebohn. It is the bond of nationality between the State and an individual that can enable a State to sue on behalf of the latter: that bond does not exist here because of the lack of genuine connection between Liechtenstein and the naturalized citizen Nottebohn, the latter having sought a change of citizenship only in order to possess the status of a neutral national. At heart, he remained a German, since he retained his family and business connections in Germany. The change of nationality was, therefore, not entitled to recognition by Guatemala. The S.S. "Lotus" (France v. Turkey) 1927, Permanent Court of International Justice The case was brought before the court by agreement between France and Turkey. It involved a collision on the high seas between the French steamer Lotus and the Turkish collier Boz-Kourt. The Turkish vessel sank, and several lives were lost as a result. The Lotus proceeded to Constantinople, where Lieutenant Demons, a Frenchman, officer of the watch on the Lotus at the time of the collision, and the Turkish captain Hassan Bey, were tried and convicted of manslaughter. The court had to decide first whether Turkey acted in conflict with the principles of international law by instituting criminal proceedings against Demons, and second, in case of an affirmative answer, what pecuniary reparation was due to Demons. The decision was that Turkey did not act in conflict with the principles of international law so that, consequently, no reparation was due to Demons. Turkey acted on the basis of its criminal code which entitled the government to punish "any foreigner who...commits an offense abroad to the prejudice of Turkey or of a Turkish subject...provided he is arrested in Turkey." The French government argued that (1) for the Turkish courts to have jurisdiction, they should point to some title giving them jurisdiction according to international law; (2) international

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law does not allow a State to take proceedings with regard to offenses committed by foreigners abroad simply because the victim had the State's nationality; because the offense was committed on board the French veBBel, it was committed "abroad" from the Turkish viewpoint; (3) international law recognizes the exclusive jurisdiction of the flag State for everything occurring on board a ship; (4) the previously mentioned principle is especially applicable in collision cases. On the first point, the court agreed with Turkey that the question was not which principle of international law entitle Turkey to act. It was which principle Turkey violated by acting. International law, the court argued, rested on the free will of States. Restrictions upon their independence, therefore, may not be presumed. While a most important restriction is that a State may not exercise its power on the territory of another, it does not follow that a State is prohibited from exercising its jurisdiction in its own territory in respect to any case that relates to acts that have taken place abroad. International law does not prohibit States from extending the application of their laws and the jurisdiction of their courts to persons, property, and acts outside their territory. All that could be required of Turkey was that it should not overstep the limits placed upon its jurisdiction by international law. This would be the case if there were a special rule of international law prohibiting Turkey from extending its criminal jurisdiction under the conditions of the present case. This situation the court proceeded to examine by answering each of the French government's remaining arguments. On the second point, the court found it to be general practice of States and an accepted rule of international law that offenses are to be considered as commited in a State's territory if one of the constituent elements of the offense, and especially its effects, have taken place in the territory of the State. As the effects have taken place on the Turkish vessel, the French argument does not hold. The court rejected France's third point by arguing that a ship on the high seas is "assimilated" to the territory of the State whose flag it flies. The ship is, therefore, placed in the same position as national territory and the flag State has no special or greater jurisdiction than it has over its territory. What occurs on board a vessel must be regarded as it it had occurred on the territory of the flag State. If an offense has been committed on one ship whose effects have taken place on another ship, the flag State of

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this second ship may consider the offense to have been committed on its territory, and prosecute the delinquent. France's fourth point also was rejected by the court. It did not find any rule in international law that in collision cases criminal proceedings can take place only in the State whose flag is flown. The court found, on the contrary, that France and Turkey had concurrent jurisdiction because the offense, inseparable in its component elements, took place within both jurisdictions. (Under the Convention on the High Seas, 1958, Article 11, the principle of jurisdiction in cases of collision maintained by the court has been rejected.) Land, Island Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene 1990 ICJ Rep. 82, 29 DLM 1345 (1990) International Court of Justice, September 13, 1990 In this case before a Chamber of the International Court of Justice, El Salvador and Honduras, by a Special Agreement dated May 24, 1986, requested that the Chamber delimit the land frontier and determine the legal status of certain islands and waters in the general area of the Gulf of Fonseca. The gulf, located on the Pacific coast of Central America, is bordered by El Salvador, Honduras and Nicaragua. For that matter, Nicaragua filed an application for permission to intervene in the case on November 17, 1989, pursuant to Article 62 of the Statute of the Court, which permits a State to request intervention if the State considers "that it has an interest of a legal nature which may affected by the decision in the case." Nicaragua asserted a variety of interests in the outcome of the case with regard to the maritime and island disputes, although not concerning the land frontier delimitation. El Salvador opposed the Nicaraguan Application; Honduras had no objection to it. The Chamber held, unanimously: (1) that Nicaragua had an interest of a legal nature that might be affected by the Chamber's judgment on the merits with respect to the legal regime of the waters of the gulf, but not with respect to any other decisions that the Chamber might make; and (2) that Nicaragua could intervene in the case with respect to that issue. ThiB is the first time in the history of the Court that a State has been permitted to intervene under Article 62 of the Statute.

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The Chamber began its analysis by briefly relating the historical background of the dispute regarding the gulf. It noted that the parties themselves were not agreed upon the precise scope of the issues that the Chamber should decide, and it then reviewed the submissions of Nicaragua with regard to the three requirements set out in Article 81, paragraph 2 of the Rules of Court for all applications to intervene. First, Nicaragua had listed various bases for its legal interest in the case, emphasizing the trilateral nature of the dispute over the gulf. Second, its stated purposes were to protect its legal rights in and around the gulf and to inform the Chamber of the nature of those rights; Nicaragua affirmed that it would subject itself to the decision of the Chamber. Third, Nicaragua argued that the Statute of the Court provided a sufficient jurisdictional basis. After quickly disposing of a series of procedural objections by El Salvador, the Chamber turned to the merits of the Application. The first section of the Chamber's opinion examined whether Nicaragua had demonstrated "an interest of a legal nature which may be affected by the decision." The Chamber reviewed this issue from the perspective of the assertion by Nicaragua that it not only had such an interest, but that this interest was also part of the subject matter of the case and that the Chamber could only rule of the case with Nicaragua's participation. In determining the existence of the legal interest, the Chamber set forth a standard of proof for applicants: first, that the burden of proof is upon the applicant to "demonstrate convincingly what it asserts," adding that a "general apprehension is not enough"; and second, as stated in Article 62, that the applicant need only show that the interest "may" be affected by the Court's decision. The Chamber noted that, in the current case, Nicaragua needed to demonstrate this interest regardless of the Chamber's ultimate holding on the parties' conflicting assertions of the scope of the dispute. The Chamber then examined Nicaragua's stated interest with respect to each of the five issues on which it believed it might have to rule during the merits stage: the status of the islands, the status of the internal waters, any delimitation of those waters, the status of the waters outside the gulf, and any delimitation of those waters. First, the Chamber quickly found that Nicaragua had failed to show that any

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interest it had in the legal status of the islands would "be directly affected" by the Chamber's decision, and that, at best, Nicaragua had an indirect interest related to the delimitation of the watera of the gulf. In considering Nicaragua's interest in the Chamber's decision on the status .of the waters of the gulf, the Chamber reasoned out that, if it accepted El Salvador's view that a 1917 decision by the Central American Court of Justice in a case between El Salvador and Nicaragua had created a condominium status for the gulf that Honduras had to accept, Nicaragua would have an interest in the res judicata effect of that caBe and an interest as a fellow riparian State. If, upon the other hand, the Chamber ruled for Honduras, and found only a community of interest in the gulf, Nicaragua would still have an interest as a coastal State. The Chamber, however, rejected the contention by Nicaragua that its interests formed the "very subject-matter of the decision," as the Chamber would not be adjudicating Nicaragua's rights in its judgment on the merits. Thus, the Chamber did not need to consider whether it could rule on the merits without Nicaragua's participation. Regarding any delimitation of the waters of the gulf that it might undertake, the Chamber found that Nicaragua's interest in "general legal rules and principles" that the Chamber would employ in a delimitation could not justify intervention. Absent a showing of more definite interests, Nicaragua had failed to meet the burden of proof required by the Chamber. The Chamber found no direct Nicaraguan interest in a decision on the status of the waters outside the gulf that would justify intervention. Finally, it held that Nicaragua had failed to demonstrate that, if the Chamber had to delimit those water, thi6 delimitation might affect Nicaragua. It rejected the Nicaraguan Agent's claim that a glance at a map of the gulf and the ocean outside it made this interest "plain," noting instead that Nicaragua had not shown how any possible delimitation "would affect an actual Nicaraguan interest." The second section of the opinion considered the purpose of Nicaragua's intervention, and whether this purpose "corresponds to what is envisaged by the Statute." The

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Chamber first reiterated that, for intervention to be granted, the applicant need not show more regarding ita interests in the case than is set forth in Article 62. The applicant is not required to go further by Bhowing "that it has rights which need to be protected." The Chamber also rejected El Salvador's contention that Nicaragua should have protected interests by making them clear in the Application. It held that Nicaragua's stated purpose for the intervention, i.e., advising the Chamber of its rights, "is perfectly proper, and indeed the purpose of intervention." Moreover, it found it important that Nicaragua was not trying to introduce a new dispute, which would be permissible under Article 62. Nicaragua did not seek a decision on its own claims in the gulf but merely wished to advise the Chamber of its rights and protect them in the ongoing case. In the third section of the Judgment, the Chamber considered El Salvador's argument that Nicaragua must show a valid jurisdictional link with the parties to the dispute. Proceeding from the premise that the Court's jurisdiction over any two parties to a case is consensual, the Chamber reasoned that, because procedures for intervention formed part of the Statute of the Court, the parties to a case before the Court, as parties to the Statute as well, had consented to permit the Court to allow intervention by any State that met the criterion of Article 62. The opposition of both parties could not prevent the Court from granting a proper application. The Chamber emphasized, however, than an application under Article 62 had to be limited to intervention in the same case."It is not intended to enable a third State to tack on a new case, to become a new party," which "would be a new case." A State could not rely upon the incidental jurisdiction provided by Article 62 to circumvent the requirement of consensual jurisdiction. Without a separate jurisdictional basis, the State could intervene, but only as a non-party. The Chamber underscored that the Rules of the Court did not require that the Article 62 applicant show any separate basis of jurisdiction. The Chamber concluded its opinion by clarifying the procedural rights to be accorded to Nicaragua as intervenor. While not a party to the case, Nicaragua was entitled to present oral argument. Its intervention would be limited to the only area in which Nicaragua h a d demonstrated a legal interest, i.e., the status of t h e waters of t h e gulf.

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Secretary-General's Trust Fund and the ICJ In response to the need of developing countries, the Secretary-General of the United Nations established in 1989 a Trust Fund. The purpose of the Fund is to provide financial assistance in order to encourage States to seek a solution to their legal disputes thru the International Court of JuBtice. Legal disputes exist in various parts of the world. The high costs incurred in proceedings often constitute a financial obstacle to the seeking of a judicial settlement thru the court. This is particularly true in many developing countries where multiple needs compete for every limited funds. There are known cases where the parties are prepared to resort to judicial settlement but are in need of funds or legal expertise or both. There have also been cases where the parties were willing but unable to implement an ICJ Judgment. The availability of external resources in such cases can be extremely helpful in their search for peaceful means thru the Court for the settlement of disputes. The Trust Fund offers limited financial assistance for the purpose of defraying expenditures incurred in Court proceedings. If thus encourages States to make better use of the International Court of Justice and also actively foster the peaceful settlement of disputes. The Fund has received worldwide support and some 30 States from all regions of the world have made financial contributions. It received its first application in March 1993 and an award waB subsequently made in May to a developing country which is seeking a solution to a dispute with its neighbor thru the International Court of Justice. A second application, also from a developing country, is now pending. The present assets of the Fund are, however, very limited. Relations in many regions of the world will indeed be greatly improved if more legal disputes can be settled thru the International Court of Justice, the legal arm of the United Nations. The Fund relies on voluntary contributions and is open to all entities. It welcomes from States, individuals, institutions, corporations, and non-governmental organizations. Contributions may be made in monetary terms (to the Secretary-General's Trust Fund to assist States in the Judicial Settlement of Disputes, Chemical Bank, UN Branch Account No. 016-004473). Further information may be obtained from the Office of th Legal AffairB, Office of the Legal Counsel, United Nations Secretariat, New York N Y . 10017.

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The ICJ on Serbia On April 9, 1993, the International Court of Justice (ICJ) ordered Serbia to stop any acts of genocide against Bosnian Muslims. The Court stressed that it was not ruling on the issue of whether genocide is in fact being committed in Bosnian civil war. However, the ICJ refused to exempt Bosnia from the UN weapons embargo against the former Yugoslav states. While the emergency measures carry enormous moral force, the ICJ has no enforcement powers. Its rulings can be enforced by the UN Security Council, although none has ever been. Libyan A r a b Jamahiriya v. U S A April 14, 1992 (Indication of Provisional Measures U n d e r Article 41 of ICJ Statute) On April 14, 1992, the International Court of Justice made an Order in the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), which it found, by 11 votes to 5, that the circumstances of the case are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures (Art. 41 provides: "1. The Court shall have the power to indicate if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending final decision notice of the measures suggested shall forthwith be given to the Parties and to the Security Council.") In its Order, the Court recalls that on March 3, 1992 the Libyan Arab Jamahiriya instituted proceedings against the United States over the interpretation or application of the Montreal Convention of September 23, 1971, a dispute arising from the aerial incident that occurred over Lockerbie, Scotland, on December 21, 1988 and that lead to a Grand Jury of the United States District Court for the District of Columbia, indicting, on November 14, 1991, two Libyan nationals, charging, inter alia, that they had "caused a bomb to be placed abroad [Pan Am Flight 103], which bomb had exploded causing the aeroplanes to crash." The Court then recites the history of the case. It refers to the allegations and

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submissions made by Libya in its Application in which it asks the Court to adjudge and declare: "(a) that Libya has fully complied with all its obligations under the Montreal Convention; (b) that the United States has breached, and is continuing to breach, its legal obligations to Libya under Articles 5, paragraphs 2, 5, paragraphs 3, 7, 8, paragraphs 2 and 11 of the Montreal Convention; and (c) that the United States is under a legal obligation immediately to cease and desist from such breaches and from the use of any and all force of threats against Libya, including the threat of force against Libya, and from all violations of the sovereignty, territorial integrity, and the political independence of Libya." The Court also refers to Libya's request (filed, like the Application, on March 3, 1992, but later in the day) for the indication of the following provisional measures: "(a) to enjoin the United Slates from taking any action against Libya calculated to coerce or to compel Libya to surrender the accused individuals to any jurisdiction outside of Libya; and (b) to ensure that no steps are taken that would prejudice in any way the rights of Libya with respect to the legal proceedings that are the subject of Libya's Application." The Court further refers to the observations and submissions presented by both Libya and the United States at the public hearings on the request for the indication of provisional measures held on March 26, 27 and 28, 1992. The Court then takes note of the joint declaration issued on November 27, 1991 by the United States of America and the United Kingdom following on the charges brought by a Grand Jury of the United States District Court for the District of Columbia against the two Libyan nationals in connection with the destruction of Pan Am Flight 103, and which reads: T h e British and American Governments today declare that the Government of Libya must: surrender fo trial all those charged with the crime; and accept responsbility for the actions of Libyan officials; disclosure all it knows of this crime, including the names of all those responsible, and allow full access to all witnesses, documents and other material evidence, including all the remaining timers: pay appropriate compensation. We expect Libya to comply promptly and in full." The Court also takes note of the fact that the subject of that declaration was subsequently considered by the United Nations Security Council, which on January 21, 1992 adopted

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Resolution 731 (1992), of which the Court quotes, inter alia, the following passages: "Deeply concerned over the results of investigations, which implicate officials of the Libyan Government and which are contained in Security Council documents that include the requests addressed to the Libyan authorities by France, the United Kingdom of Great Britain and Northern Ireland and the United States of America [S/ 23308], in connection with the legal procedures related to the attacks carried out against Pan American flight 103 and Union de transport aeriens flight 772; 2. Strongly deplores the fact that the Libyan Government has not yet responded effectively to the above request to cooperate fully in establishing responsiblity for the terrorist acts referred to above against Pan American flight 103 and Union de transports aeriens flight 772; 3. Urges the Libyan Government immediately to provide a full and effective response to those requests so as to contribute to the elimination of international terrorism;" The Court further notes that on March 31, 1992 (three days after the close of the hearings) the Security Council adopted resolution 748 (1992) stating, inter alia, that the Security Council: Deeply concerned that the Libyan Government has still not provided a full and effective response to the requests in its Resolution 731 of January 21, 1992. Convinced that the suppression of acts of international terrorism, including those in which States are directly or indirectly involved, is essential for the maintenance of international peace and security. Determining in this context, that the failure by the Libyan Government to demonstrate in concrete actions its renunciation of terrorism and in particular its continued failure to respond fully and effectively to the requests in resolution 731 (1992) constitute a threat to international peace and security. Acting under Chapter VII of the Charter, the Court: 1. Decides that the Libyan Government must now comply without any further delay with paragraph 3 of Resolution 731 (1992) regarding the requests contained in documents S/23306, S/23308 and S/23309; 2. Decides also that the Libyan Government must commit itself definitely to cease all forms of terrorist action and all assistance to terrorist groups and that it must promptly, by concrete actions, demonstrate its renunciation or terrorism; 3. Decides that, on April 15, 1992 all States shall adopt the measures Bet out below, which shall apply until the Security

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Council decides that the Libyan Government has complied with paragraphs 1 and 2 above; 4. Calls upon all States, including States not members of the United Nations, and all international organizations, to act strictly in accordance with provisions of the present resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into any license or permit granted prior to April 15, 1992. The Court observes that Document S/23308, to which reference was made in Resolution 748 (1992), included the demands made by the United States of Ameica and the United Kingdom in their joint declaration of November 27, 1991, as set out above. After having referred to the observations on Security Council Resolution 748 (1992) presented by both Parties in response to the Court's invitation (as well as by the Agent of the United States in an earlier communication), the Court goes on to consider as follows: "Whereas, the Court, in the context of the present proceedings on a request for provisional measures, has, in accordance with Article 41 of the Statute, to consider the circumstances drawn to its attention as requiring the indication of such measures, but cannot make definitive findings either of fact or of law on the issues relating to the merits, and the right of the Parties to contest such issues at the stage of the merits must remain unaffected by the Court's decision; Whereas both Libya and the United States, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter, whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in Resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention; Whereas the Court, while not at this stage called upon to determine definitively the legal effect of Security Council Resolution 748 (1992), considers that, whatever the situation previous to the adoption of that resolution, the rights claimed by Libya under the Montreal Convention cannot now be regarded as appropriate for protection by the indication of provisional measures; Whereas, furthermore, an indication of the measures requested by Libya would be likely to impair

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the rights which appear prima facie to be enjoyed by the United States by virtue or Security Council Resolution 748 (1992); Whereas, in order to pronounce on the present request for provisional measures, the Court is not called upon to determine any of the other questions which have been raised before it in the present proceedings, including the question or its jurisdiction to entertain the merits of the case; and whereas the decision given in these proceedings in no way prejudges any such question, and leaves unaffected the rights of the Government of Libya and the government of the United States to submit arguments in respect of any these questions: For these reasons, T H E COURT, By eleven votes to five, finds that the circumstances of the case are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. The Weakness in Enforcing a Judgment The question of enforcing both arbitral awards and judicial decisions, has beduffled the world court. Thus, whenever a State finds objection to carrying out an award or a decision, it tends to advance the doctrines of nullity or impossiblity of performance. Three (3) main reasons for such nullity are given, to wit: One. Excess of power, i.e., the charge that the arbitral tribunal or the court in question exceeded the powers granted to it. Two. Corruption of a member of the Tribunal. Three. A serious deviation from the rules of procedure in making the award or decision. In the event that the "losing" party refuses to comply with an arbitral award or a judicial decision, the "winning" stale may resort to self-help measures short of war. States That Have Signed the Optional Clause At least thirty-nine (39) States and nations had become subject in varying degrees, in relation to one another, to the COMPULSORY jurisdiction of the International Court in legal disputes enumerated in Art. 36, No. 2 of the Statute. These nations include the United States and ten of the Latin-American republics (Colom-

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bia, Dominican Republic, El Salvador, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay and Uruguay); the United Kingdom and six other members of the British Commonwealth (Australia, Canada, India, Pakistan, New Zealand, and Union of South Africa); France and ten other nations of the European continent (Belgium, Denmark, Finland, Liechtenstein, Luxembourg, Netherlands, Norway, Portugal, Sweden, and Switzerland); seven Asian nations (Cambodia, Japan, Taiwan, Israel, Philippines, Thailand, and Turkey); and three African , nations (Liberia, United Arab Republic, and Sudan). Notable absences from the list are Peru, Greece, Guatemala, Argentina, Brazil, Chile, Italy, West Germany, Spain and A L L the Communist nations. * 3

By April 1993, a UN draft resolution tightening sanctions against Yugoslavia has been readied. The resolution would tighten the international embargo imposed on the rump Republic of Yugoslavia — Serbia and Montenegro — since May 30, 1992, with the aim of promoting peace in neighboring Bosnia-Hercegovina. The new measures would ban the transshipment of goods across Yugoslavia, on the Danube River and on Yugoslavia's territorial waters in the Adriatic, and they would put a freeze on all financial dealings with the republics. Guinea-Bissau v. Senegal 1991 ICJ Rep. 53 (Nov. 12) 31 I L M 32 (1992) On August 23, 1989, Guinea-Bissau Filed a unilateral application instituting preceding against Senegal in the International Court of Justice based on the optional clause declarations of both States. Guinea-Bissau was seeking a declaration that the award of an arbitration between the parties, rendered on July 31, 1989, was "inexistent" for lack of a real majority. Subsidiarily, Guinea-Bissau contended that the award was null and void because the Tribunal had failed to answer the second of two questions put to it, had not decided on the delimitation of the maritime area concerned as a whole by a single line on a map, and had not given the reason for so failing to exercise its jurisdiction. The Court

y,

The Rule of Law Among Nations. American Bar Association, April 15. 19fiO. p 7

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rejected all of Guinea-Bissau's submissions and held that the award was valid and binding on both parties. Recall that on April 26. 1960, Portugal and France concluded an Agreement for the purpose of defining the maritime boundary between the Republic of Senegal (then an autonomous State within the French Community) and the Portuguese province of Portuguese Guinea. After GuineaBissau and Senegal gained independence, a dispute arose between them concerning the delimitation of their maritime areas. This dispute was the subject of negotiation from 1977 onward, in the course of which Senegal asserted that the line defined in the 1960 Agreement had been validly established. Guinea-Bissau disputed the validity of that Agreement and its "opposability" to Guinea-BiBsau, insisting that the maritime areas in question be delimited without reference to the Agreement. On March 12, 1985, the parties concluded an Arbitration Agreement, which set forth in Article 2 two questions presented to the three members of the arbitration panel: 1. Does the Agreement concluded by an exchange of letters on April 26, 1960, and which relates to the maritime boundary have the force of law in the relations between the Republic of Guinea-Bissau and the Republic of Senegal? 2. In the event of a negative answer to the first question, what is the course of the line delimiting the maritime territories appertaining to the Republic of Guinea-Bissau and the Republic of Senegal, respectively? The Arbitration Agreement went on to state that the decision "shall" include the drawing of the boundary line on a map, and that the award would be binding on the two parties. The arbitral tribunal, composed of Mohammed Bedjaoui and Andre Gros, arbitrators, and Julio A. Barberis, President, pronounced the award on July 31, 1989. The Court summarized the findings of the tribunal in its Judgment: the 1960 Agreement was valid and could be opposed to Senegal and Guinea-Bissau; it had to be interpreted in light of the law in force at the date of its conclusion; and it did not delimit the maritime areas that did not yet exist when it was concluded (including the EEZ and fishery zones), but did delimit the

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territorial sea, the contiguous zone and the continental shelf, as they were expressly mentioned in the Agreement. Because the definition of the continental shelf in 1960 included the "dynamic" criterion of exploitability, the tribunal concluded that the Agreement delimited the continental shelf over the whole extent of that maritime space as denned at present. The tribunal declined to answer the second question presented and considered that there was no need to append a map showing the course of the boundary line. In the operative clause of the award, the tribunal answered the first question in the affirmative, deciding that the 1960 Agreement had the force of law between Guinea-Bissau and Senegal with regard solely to the areas mentioned in the Agreement. President Barberis appended a declaration to the award essentially that he would have answered the first question not simply by finding the Agreement to have the force of law, but by explicity indicating to which maritime areas the line of the Agreement pertained, i.e., the territorial sea, the contiguous zone and the continental shelf, but not the exclusive economic zone or the fishery zone. Such a "partially affirmative and partially negative reply" would have enabled the tribunal to answer the second question and append a map. Mr. Bedjaoui, who had voted against the award, appended a dissenting opinion. He stated that the failure to answer the second question meant the award as "incomplete and inconsistent with the letter and spirit of the Arbitration Agreement with regard to the single line desired by the Parties." Before reaching the merits, the Court addressed the matters of jurisdiction and admissibility. Senegal had made a replacement optional clause declaration that essentially would have barred resort to the Court for matters arising out of the underlying maritime delimitation dispute. The parties agreed, however, that the case involved not the maritime dispute but, rather, the rendering of the arbitral award, which occurred after Senegal had made the new optional clause declaration. This supports the Court's emphasis that the proceedings were not an appeal from the arbitration: that, i.e., the Court was not going to inquire into the internal proceedings of the arbitration so as to decide whether the arbitrators' decision was right or wrong; rather, the Court's function WBB to decide whether the tribunal's award was a nullity. The Court then considered and rejected Senegal's

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contention that Guinea-Bissau's Application was inadmissible, inter alia, because President Barberi's declaration was not part of the award, and hence any attempt by Guinea-Bissau to use it was an abuse of the process. Although Guinea-Bissau contended that the absence of Mr. Gros when the award was pronounced amounted to recognition that the tribunal had failed to resolved the dispute, the Court concluded that his absence could not affect the validity of the award, which had already been adopted. The Court next examined the submissions of Guinea-Bissau. The latter supported its main submission that the award was inexistent for lack of a real majority by contending that President Barberis's declaration contradicted and invalidated his vote. The Court found that his statement that the tribunal's answer to the first question "could have been more precise" merely indicated a preference and disclosed no contradiction with the award. It added that, even if there had been a contradiction, the declaration of President Barberis could not prevail over his vote on the decision. Subsidiarily, Guinea-Bissau contended that the award was null and void on the grounds of exces de pnuvoir and insufficiency of reasoning: the failure to answer the second question constituted an exces de pouvoir, and the tribunal had not explained why it had declined to proceed to the second question, to provide a single maritime delimitation line, and to draw that line on a map. Guinea-Bissau made three arguments to support its contention that the tribunal had not answered the second question: the tribunal never really made a decision not to give an answer; that even if there was such a decision, there was insufficient reasoning to support it; and that any such decision would be invalid. The Court rejected the argument that the second question was not answered. Allowing that "it would have been normal to include in the operative part of the Award, i.e., in a final paragraph, both the answer given to the first question and the decision not to answer the second," the Court concluded that the tribunal had decided not to answer the second question; the award was not flawed by a failure to decide. The Court found support for its conclusion in paragraph 87 of the award, as well as, ironically, the declaration of President Barberis. The contention that the tribunal had given insufficient reasoning for failing to answer the second question was also rejected. The references in paragraph 87 to the

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tribunal's previous conclusions made it possible Tor the Court to determine, "without difficulty," the tribunal's rationale for not answering the second question: "Having given an affirmative answer to the first question, and basing itself on the actual text or the Arbitration Agreement, the Tribunal found as a consequence that it did not have to reply to the second question. That statement of reason, while succinct is clear and precise." The Court also dismissed Guinea-Bissau's contention that the reasoning thus adopted by the tribunal on whether it was required to answer the second question was invalid. Guinea-Bissau argued, first, that the proper construction of the Arbitration Agreement required an answer to the second question, regardless of the answer to the first; and second, that an answer to the second question was required in any event because the answer to the first was in fact partially negative. The Court answered the first argument by pointing out that Guinea-Bissau was criticizing the interpretation of the Arbitration Agreement in the award and proposing a new interpretation, although the tribunal, under the terms of the Arbitration Agreement, had the power to determine its own jurisdiction and to interpret the Agreement for that purpose. The Court pointed out that its task was not to decide whether a particular interpretation was preferable — that would be to treat the request as an appeal and not a recours en nullite. Rather, the Court's task was to ascertain whether, by rendering the disputed award, the tribunal had acted in "manifest breach" of the jurisdiction conferred on it by the Arbitration Agreement. The Court declared that it must interpret the Arbitration Agreement according to international law, i.e., by first examining the natural and ordinary meaning of the provisions, unless the natural and ordinary meaning of the provisions results in a meaning that is incompatible with the spirit, purpose and context of the clause or instrument. Furthermore, the Court declared that an arbitral must conform to the terms of its task as defined by the parties. In this case, the Court explained, the tribunal was required by the Arbitration Agreement to reply to the second question "in the event of a negative answer to the first question." In dicta, it declared that the parties could have directed the tribunal otherwise

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(perhaps by directing it to answer the Becond question "taking into account" the answer to the first), but they had not. The Court compared this Arbitration Agreement to an earlier one concluded in 1983 by Guinea-Bissau and Guinea, in which the parties had asked another arbitral tribunal to answer subsequent questions to a Beries of initial questions "according to the answers given." The implication was that Guinea-Bissau had the benefit of prior experience and should have drafted the Arbitration Agreement in this case accordingly. With regard to the ordinary meaning of the Arbitration Agreement, Guinea-Bissau stressed that the object of the arbitration, based on the preamble to the Arbitration Agreement, was to settle the dispute that had arisen between the two countries. Therefore, the tribunal had been required to delimit by a single line the whole of the maritime areas appertaining to each State. Notwithstanding the prefatory words to the second question, then, the tribunal had been required to answer that question and effect the overall delimitation desired by the parties. The Court also rejected this contextual argument. It recalled the circumstances surrounding the drawing up of the Arbitration Agreement, and pointed out that Senegal had always maintained the legal validity of the 1960 Agreement between France and Portugal in the relations between the two States by virtue of the rules of State succession. Guinea-Bissau, upon the other hand, had considered the Agreement "inexistent, null and void, and in any case not opposable to it." Although both parties had intended to delimit the whole of the maritime area with a single border, Senegal had hoped to achieve this result by an affirmative answer to the first question and a confirmation of the 1960 line as the single maritime boundary; whereas Guinea-Bissau had hoped to achieve it by a negative answer to the first question and, consequently, an ex novo delimitation without reference to the 1960 Agreement. The Court found that the parties had reached no agreement as to what should happen in the event of an affirmative answer leading only to a partial delimitation. A c c o r d i n g l y , it found that the travaux preparatoires confirmed the ordinary meaning of Article 2 of the Arbitration Agreement. Thus, while the mandate of the tribunal had included the delimitation of all maritime areas of the parties, it was to do so only under the second question and "in the event of a negative answer to the first question."

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Although the parties had expressed their desire to reach a settlement in general terms in the preamble to the Arbitration Agreement, their consent had only been given in the terms expressed in Article 2. The Court next turned to Guinea-Bissau's second argument: that the answer given to the first question was in fact partially negative and sufficed to satisfy the prescribed condition for answering the second question. It noted that the tribunal had not adopted the wording that President Barberis would have preferred. The parties had asked the tribunal whether the 1960 Agreement had the force of law and, in its affirmative answer, the tribunal defined the substantive scope of the Agreement. That this answer to the first question did not settle the dispute and achieve a delimitation of all the maritime areas concerned did not affect its completeness. In this respect, then, the Court rejected Guinea-Bissau's contention of nullity, concluding that the tribunal did not manifestly breach its competence in its answer to the first question. Finally, the Court dealt with Guinea-Bissau's contention that the award should be considered wholly null and void because the tribunal had failed both to include the drawing of the boundary line on a map as directed and to give sufficient reasons for its decisions on that point. The Court decided that the reasoning given by the tribunal in describing the boundary line fixed by the 1960 Agreement and referencing the sketch in the preparatory work for the 1960 Agreement was sufficient to indicate the boundary line. In any case, the Court concluded, the mere absence of a map did not constitute such an irregularity as would render the award invalid. FORCIBLE SANCTIONS Among the forcible measures generally resorted to 88 sanctions in international law are the following: severance or rupture of diplomatic relations (this is a serious matter" usually the diplomatic agents of the country against which the grievance lies are handed their passports, or are ordered to leave); ™

" W i b o n , Handbook of International Law. p. 226.

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Examples: In 1961 the Philippines broke off diplomatic relations with Cuba upon the discovery by the (Philippine) National Bureau of Investigation that the Cuban embassy had allegedly become a front for subversive elements; the United States has already severed diplomatic ties with Cuba on account of the Communist-influenced fanaticism of Castro's Cuban Government). (2) retorsions (unfriendly but lawiul coercive acts done in retaliation for unfair treatment and acts of discrimination); 17

Example: (levy of high discriminatory tariffs) (3) reprisals (nnfrirndlT m d unlawful acts in retaliation for reciprocal illegal actuations); 38

(Example: freezing of the assets of the nationals of the State which is the subject of retaliation.) (4)

special forms of reprisals:

(a) embargo — this is a special form of reprisal which, in general, consists in the forcible detention or sequestration of the vessels and other property of the offending State or even of its own; 39

[NOTE: If a State prevents exit from its ports of its own vessels or properties, this is known as civil or pacific embargo; if foreign properties and vessels (of the offending State) are the object of the prohibition, the embargo is called a hostile embargo.) 40

N.B.: The United Nations ( U N ) , moved by its humanitarian nightmare and the test that poses for global security after the Cold War, imposed mandatory economic sanctions on Slobodan Milosevic's outlaw Serbian regime. To illustrate the Serbian aggression and atrocities: On May 27, 1992, Serbian troops lobbed mortar shells into a bread line in saravejo. killing at least 17 civilians and wounding more than 100.

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While the aforecited incident began to get at the causes of this nightmare, also urgently needed to be addressed were the effects, e.g., the 700,000 people already displaced by the Serbian carnage. The first thing done was to encourage an armed UN escort for international relief efforts to ease their suffering. On almost the same point, two questions cropped up re: an urgent short-term responsibility that fell to the UN and one it failed to shoulder, i.e., to deal with the plight of desperate people driven from their homes by Serbia's appaling "ethnic cleansing" in Bosnia. What did the UN High Commissioner for Refugees do after a dozen UN trucks loaded with food and medicine were hijacked at gunpoint? Did he send in armed guards? No. He suspended the aid convoys, despite the Bosnian's urgent needs. The Red Cross also suspended operations after one of its relief workers was killed. What then were the mandatory step-by-steps sanctions under Chapter 7 of the UN Charter (which permits UN members to use force, as what was employed against Iraq's Saddam Hussein) directed against the forces of Milosevic? They were, to wit: One. The U.S., upon UN's gesture, recalled its ambassador and suspended all flights by the Yugoslav national airline. Two. A UN arms embargo was affected. Along this line, the U.S. helped tighten the arms embargo by putting pressure on neighboring States that were engaged in gun-running. Three. The European Community, also in compliance with the UN's call for measures, imposed partial sanctions. Unfortunately, no real leverage was made because of the absence of an international cutoff of oil. If this eventually had materialized, it would have required Greece, Romania, and all of Serbia's neighbors to go along; the U.S. and others could have offered to buy the oil bound for Serbia, and threaten sanctions against those who violate the embargo. (b) pacific blockade — a special kind of reprisal which prevents entry to or exit from the ports of the offending State

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570

of means of communication and transportation. Formerly, UUB kind of naval operation in time of peace was allowed; today, however, it would seem that international law prohibits the same without the sanction or the U N ; 41

(c) non^iateccottrse — suspension of all intercourse with the offending State, particularly in matters of trade and commerce;'' 2

(d) ArtyjWL— rnncerted suspension of commercial relations with* the offending State, with particular reference to a refusal to purchase goods. The ban by the European Economic Community (European Common Market) on oil imports from Iran as a consequence or the holding of hostages by militant Iranian students iB a clear example of a modernday boycott. 43

44

(5) Charter:

compulsive or enforcement measures under the UN '—

Art. 41 of the UN Charter provides: T h e Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations." Art. 42 of the Charter says: "Should the Security Council consider that measures provided for in Art. 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operation by air, sea, or land forces of Members of the United Nations." Art 43 of the Charter says:

" S e e Fenwick, op. eit., p. 437. "ibid p. 436. "Ibid., p. 437. **See Bulletin Today, April 23, 1980.

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571

"1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security forces, assistance, and facilities including rights of passage, necessary for the purpose of maintaining international peace and security. "2. Such agreement or agreements shall govern the number and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. "3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members, or between the Security Council and groups of Members and shall be subject to ratification by the signatory States in accordance with their respective constitutional processes." ECONOMIC SANCTIONS At any rate, sanctions come in a variety of forms and, according to lawyers and financial analysts, who have studied the range of possible measures, the economic consequences can vary considerably. With specific reference to sanctions that may be imposed on, let us say, the Philippine government in the event of a default on external obligations, these include forcible measures generally resorted to under international law, thus: Landing Rights. A proposal to rescind the country's landing rights in the United States will not only inconvenience Filipino travelers and transients, but also affect the Philippine Air Lines ( P A L ) , the country's official air carrier, of its economic sustenance. Consulates. A proposal to end visa services at U.S. consulates in the Philippines will mean a stop to Filipino migration, the socalled "brain-drain syndrome." This spells the end of overseas opportunities for a lot of qualified professionals and highly skilled workers. Private Loans. Another option is to ban U.S. bank loans to the Philippines. Lack of foreign capital sharply limits the growth

572

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of Philippine economy. Eventually the effect could be lower profitability for businesses, and e v e n t u a l l y increased unemployment. New Investments. A ban on all new investments in subsidiaries, is another example of a sanction affected by market forces. Rather than pump new money in Philippine operation, parent companies in the U.S. have been selling ofT assets or letting branches use their profits to modernize. Results: a net flow of capital from the subsidiaries to their U.S. headquarters rather than the reverse. Less U.S. business activity in the Philippines not only crimps the country's economic growth, deprives it of technology, but hits employment hardest. Total Trade Embargo. This measure could clip the profits of businesses and apply marginal pressure on the government on a significant scale. A trade embargo will have much financial effect on Philippine export earnings. Disinvestment. Possibly, the most sweeping and controversial sanction is one that will give all American companies to get rid of all their assets in the Philippines. A forced withdrawal will lead either to a dissolution of these private U.S. assets or their disposal at fire-sale prices to private buyers. The impact on the Philippines will probably be at least at temporary loss in skilled management and lower profits. To abate any deterious upshot, the Philippine government, in anticipation of all possible sanctions, may develop a two-tier exchange rate for the peso, with lower rates on money from the sale of foreign assets, that will minimize its own capital loss in any foreign-business pullout. 'No-Fly Zone' in Iraq A 'no-fly' zone in Iraq has been imposed in accordance with UN Security Council Resolution 688, which calls for protecting Iraq's population against Saddam Hussein's minority Sunni Muslim-dominated government. There is also a no fly zone in southern Iraq to protect the Kurdish minority there. Saddam unleashed a wave of terror against the Shiite population in the South to crush the anti-government rebellion that errupted in March 1991 following the Iraqi defeat by a U.S.-led allied force in the war. The U.S., Britain, and France said Iraq was attacking Shiites hiding in the marshes w i t h fighter-bombers and helicopter gunshipB in defiance of UN resolutions. Thus, when t h e U.S. Bhot down an Iraqi

CONSEQUENCES OP RIGHTS: PEACEFUL AND FORCIBLE SANCTIONS

573

fighter aircraft on late December 1992, i.e., two Iraqi warplanes "turned to confront" U.S. F-16 jets in UN-restricted airspace over southern Iraq, it was the first Iraqi aircraft destroyed since the allies from the Gulf War decreed a "no fly" zone on August 27, 1992 for Iraqi warplanes south of the 32nd parallel. The first months of the no-fly zone enforcement were without confrontation. The American pilots and their British and French allies flew at least 7,500 unchallenged flights. Statistics available up to November 23, 1992 listed a total of 7,331 flights. However, two days after U.S. President Bill Clinton took over, on January 22, 1993, a U.S. F4-G fired at a missile site in northern Iraq, after its pilot reported that he was being attacked by ground radar. Later, on February 3, two French F-l Mirage reconnaissance aircraft were fired upon. On April 10, U.S. warplanes dropped cluster bombs on an Iraqi military position after they were attacked by ground artillery while patrolling the no-fly zone in Northern Iraq. The U.S. fighter planes — three F-16s and an F-46 — were being tracked by Iraqi radar before they were fired on. In response, the three F-16s dropped four cluster bombs on the artillery site. The U.S. planes then returned to Incirlik Air Base in Turkey. Under Clinton, the U.S. has tried to depersonalize its dispute with Iraq by no longer insisting in Saddam's removal from power as a condition for lifting international sanctions. But U.S. State Secretary Warren Christopher has insisted that this view represents no softening of Washington's line. Trade Embargo on Vietnam by the U.S. The United States, on September 1993, continued its trade embargo on Vietnam, notwithstanding Vietnamese Foreign Minister's Manh Cam's optimism that said embargo "does not mean it (embargo) will be lasting another year, but it could be ended anytime soon." Cam said moves such as U.S. President Clinton's decision to clear aid to Vietnam from the International Monetary Fund had been slow but "will definitely lead to the normalization of relations." Clinton, for his part, has already relaxed aspects of the embargo, but he tied further improvements to results in the search for more than 1,600 U.S. servicemen still listed as missing in action from America's long war with Hanoi. {Manila Bulletin, "Vietnam Optimistic on U.S.," Oct. 9, 1993, p. 4).

574

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U.S. Sanctions Russia On July 1993, the United States imposed new trade sanctions against Russia to protest Moscow's sale of ballistic missile technology to India. The sanctions were in addition to those imposed in May 1992 against the Russian company Glav Cosmos. The U.S. State Department said new evidence had been uncovered prompting the imposition of sanctions "targeted to additional enterprises." The U.S. protested Russia's sale of rocket engines to India for an estimated $350 million, of which so far $80M has been paid. Washington had wanted Russia to desist from selling believing the material could be used for military ends. (See The Foreign Post, "U.S. Imposes New Trade Sanctions Against Russia," Vol. I, No. 24, July 1-7, 1993, p. 5). UN Sanctions Vs. South Africa Lifted The General Assembly lifted economic sanctions against South Africa on Oct. 8, 1993 and urged all nations to repeal boycott legislation, saying the transition toward democracy is well under way. In a consensus resolution, without a vote or speeches, the 184-nation General Assembly also agreed to lift an oil embargo once a multiracial transitional council is in place in South Africa. "We are sending a very strong signal to the people of South Africa that the international community is ready to assist in economic reconstruction and ensure that a new South Africa begins without the economic constraints imposed on the old South Africa," Nigerian Ambasador Ibrahim A. Gambari said in introducing the repeal resolution. We cannot but recognize this reality of progress toward democracy and act in consonance with the wishes of the people." A N C President Nelson Mandela responded enthusiastically to the expected move, which he had requested to help rally South Africa's ailing economy. "That is what we asked for," the African National Congress leader told reportes. "We are happy indeed that the world body is going to help and lift sanctions." The action had more symbolic than real value, since the United States, the European Community, the Organization of African Unity and the Commonwealth, among others, already have agreed to lift sanctions. A mandatory armB embargo, imposed by the Security Council in 1977, will remain in place, however.

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576

The lifting of sanctions was widely expected after Mandela apppealed to the General Assembly on Sept. 27, 1983 to end all economic embargoes, saying, "the countdown to democracy haB begun." Mandela, whose group is expected to win South Africa's first multiracial elections on April 27, called for extensive foreign investment to bolster the transition to democracy and repair the damage caused by years of sanctions. Since 1961, the General Assembly has issued a stream of denunciations of apartheid and numerous calling for voluntary restrictions on trade, oil, finance, investment, travel and trasportation in South Africa. The purpose of sanctions was to isolate South Africa and to generate painful conditions at home and presure so that while government would dismantle the apartheid system. General Assembly resolutions, unlike Security Council resolutions, are not legally binding but they carry considerable moral weight as the expression of will of the international community. Since 1991, the General Assembly has acknowledged progress in South Africa and has called for resumption of academic, scientific, cultural and Bporting links. Example of collective UN action: the Korean Intervention Shortly after the end of World War II Korea, formerly belonging to Japan, was taken over by the Soviet and the U.S. forces: the north zone (north of the 38th parallel) was occupied by Russia; the south zone by the U.S. The two countries were supposed to cooperate in setting up a "provisional Korean Democratic government" but in view of disagreements on the nature of a "democracy," trouble began to flare up, till the UN was forced to send a "Temporary Commission on Korea." In South Korea, free elections were held, and the General Assembly on December 12,1948 declared the existence of a lawful government in that region. The Communist Government in North Korea, supposedly aided by Russia and China crossed the 38th parallel and began the invasion of South Korea, which was then possessed of a weak and small army. The Security Council was faced with a threat to international peace. On June 25, 1950, the Security Council passed a resolution naming the invasion a breach of the peace, demanded the withdrawal of the Northern forces to the 38th parallel, and asked all the UN members to support South Korea. Incidentally, Russia could not exercise its veto power because its delegate had previosly walked out on January 1, 1950 in protest of the Council's action in refusing to seat

576

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China in the Security Council. It was only on August 1, 1950 that the Sonet representative resumed. The Council, in recommending assistance to Korea, called for a unified UN force, under the command of the United States. Be it noted that the UN did not directly decide to take action under Art. 42 of the Charter: it merely made a recommendation. President H a r r y Truman appointed General Douglas MacArthur to command the expeditionary forces. (MacArthur was later succeeded by General Matthew B. Ridgway, who, in turn, was replaced by General Mark W. Clark). By summer of 1950, 16 nations including the Philippines, had come to the rescue of South Korea. On February 1, 1951, by a vote of 44 to 7, the General Assembly passed a resolution declaring the Communist Chinese Government guilty of aggression in South Korea. In May of the same year, the Assembly made a recommendation that all countries put an embargo on the shipment of war materials to North Korea and to China. By the end of April, 1952, the two sides had agreed on a ceasefire except on the question of prisoners of war. By the end of another year, fighting really stopped, the North Koreans having been driven back close to the original line of the 38th parallel." More than 40 years later (May 31, 1993), moves have been initiated by both Koreas to discuss the first inter-Korea summit and nuclear issues, indeed a bold move possibly leading to unification of the two nation-States. Seoul officials have said a top priority is to resolve the North's nuclear issue. North Korea, a hard-line Marxist State, announced on Mar. 12, 1993 that it was withdrawing from the 154-member Nuclear Non-Proliferation Treaty ( N P T ) , designed to check the spread of nuclear weapons technology — reinforcing suspicion that it is developing nuclear weapons despite its denials. 46

(6) war — this is the last forcible means of redress in international law. The next chapter will be devoted to a discussion of war, neutrality, and the principle of postlimini. — Oo — 0

" S e e David Coyle. The United Nations, pp. 106-110. "See The Philippine Star, "Nokor Proposes N e w Dale (or Contact With South," June 1, 1993, p. 2.

Chapter 13 WAR, NEUTRALITY, AND POSTLIMINIUM

\oss\ 4 '

V-dLrXs

^ W A R DEFINED Hugo Grotius posits that war is an armed contest between States. However, even without an armed conflict, war can also exist when there is an interruption of the pacific relations between y States, and there is a general contention by forc(j< authorized b ^ / the sovereign. The purpose of war is "to overpower the opponent and to impose upon him the conditions of peace." 1

2

3

Otherwise put, "war" is the conflict among the States carried to the extreme point by their armed forces. (Quincy Wright, "War," Encyclopedia of the Social Sciences). War is a means for achieving goals in the same way as diplomacy is. However, when diplomacy fails, a State turns to war, perhaps as the last recourse. (See David W. Ziegler, War, Peace, and International Politics, 1990).

INTERNATIONAL ATTEMPTS TO OUTLAW WAR For many centuries, wars have been waged in various parts of the world, but it is only in recent years that war has been condemned on an international scale: (1) The Covenant of the League of Nations* restricted the right to wage war by laying down procedural checks;

'Grotius, De Jure Belli, 1, p. 1. ''See Commercial Cable Co. v. Burleson (D.C.I, 255 F. 99. 'Kelsen, Principles of International Law, p. 31. 'Arts 10-16. 577

578

I N T E R N A T I O N A L LAW A N D W O R L D POLITICS

(2) The Kellogg-Briand Pact (known also as the Pact of Paris or the General Treaty for the Renunciation of War, August 27, 1928 — ratified by 62 States) forbade war as "an instrument of national policy," but did not abolish it as such. War was, thuB, implicitly allowed for the following purposes: (a^se*lf-defense; ( t r f ' t h e enforcement of international (not natioMal) obligations; (pK^settlement of conflict between non-members of the Pact; and between members on the one hand and non-members of the Pact^upon the other hand; ( d r the castigation of a Member of the Pact which violates its provisions. 5

(3) The Charter of the UN prohibits war under Art. 2, par. 4 without, however, using the word "war": "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purpose of the United Nations." While "enforcement measures" under the Charter involving the use of armed forces have technically the character of war," it is unfair to consider them in exactly the same category of war. For while war'is generally availed of to secure the interests of an individual State, "enforcement measures" seek international peace. The object of the latter is "comparable, in the municipal sphere, to the enforcement of law against the lawbreakers." The rules of war are applicable to "enforcement measures," otherwise, the ideals of the UN would be gravely imperilled 7

^ S T A T E OF WAR DISTINGUISHED FROM A C T OF WAR A^S£a^ej3£war^^i sts_when war has been declared, £4Dressly (such as by a declaration of war) or implicitly (as by the commission of forcible acts with animo belligerendi).* The mere employment of i

''See Oppenheim-Lauterpacht, International Law, Vol. 11. pp. 182-183. 'Kelsen, op. cit., p. 47. 'Oppenheim-Lauterpacht, op. cit., p. 224. "See Stone. Legal Controls of International Conflict, p. 310.

WAR, NEUTRALrTY. AND POSTLTMrNTUM

579

force, however, for the purpose of reprisal, without the intent to create a war, may be deemed an "act of war." Of course, an "act of war" may generally cause a "State of war." 9

In the 1987 Philippine Constitution, there is the proviso: "The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a State of war." [Art. VI, Sec. 23(1)]. 1

NOTE that instead of using the phrase to "declare war," another phrase is used. This is to emphasize the fact that what the country will enter into is a DEFENSIVE war, not one of aggression. CLASSIFICATION OF WARS are the contending forces or fa) jnternational war (between States of the same civilization); (b) imperial war (between States of different civilizations); (c)

civf.1 war (between factions in the same State).

(2) According to object: -4a)—absolute war (the purpose is the extermination or the unconditional surrender of the enemy); -* (b) limited war (fought to gain reparation of a particular injury; to gain recognition of a particular claim; or to acquire a particular territory or advantage). (NOTE: Clausewitz points out that there is a tendency — for all wars, however, limited their original aim, to become absolute if the belligerents have equal power and equal tenacity.) [NOTE: Wars of long duration may be divided into campaigns (in one area under one command for one season) which in turn may be composed of different battles (two or three days) and sieges (longer than battles)).* 0

"See Moore, A Digest of International Law, Vol. V I I , p. 153.

'"See Encyclopedia Britannica. Vol. 23, p. 322.

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560

[NOTE: In a figurative sense, wars have been divided into "hot wars" (where there is actual fighting) and "cold ware" (where the dispute iB usually confined merely to words and arguments on ideologies but an atmosphere of deadly tension is created: e.g., the former "cold war" between the Democratic and the Communist ways of life;) it is said that there is today the existence of a postCold War with the fall of communism in Eastern Europe.)! (3) According to where the initiative began: (a) war of aggression; (b) war of self-defense (or counter-war). (4) volved:

According to the number of combatants or nations in-

(a) (b) (c) on either

individual war (between two States); regional war (confined to a geographical region); world war (where almost all countries are ranged of two sides: e.g., World War I and World War I I ) .

(5) According to the nature and composition of the combatants: (a) guerrilla war, otherwise called unconventional war (irregular armed forces); (b) regular war (regular armed forces); and (c) total war (embraces everybody, including women and children, in the sense that since they help in economic development and furnish material and moral support to the soldiers, some States may regard them as "combatants" and may find justification for their killings or being the object of bombings and bombardments). (6)

According to the area of operations: (a) land warfare; (b) maritime or fluvial warfare; and (c) aerial warfare.

PROVISIONS OF THE 1987 CONSTITUTION ON WAR (AND RELATED PROVISIONS) (1) 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

WAR, N E U T R A L I T Y , A N D POSTLIMINIUM

policy of peace, equality, justice, freedom, cooperation, and amity with all nations." (NOTE: What is renounced is generally a "war of aggression," not a "war of self-defense," although even the latter is subject to the UN Charter.) (2) The Congress, by a vote of two-thirds of both Houses, in joint session assembled, voting separately, shall with the concurrence of two-thirds of all the members of each House, have the sole power to declare the existence of a State of war. 12

(3) The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required under conditions provided by law, to render personal, military or civil service. 13

(4) In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy." (5) The President shall be commander-in-chief of all the armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, or rebellion, when the public Bafety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law. 15

(6) The privilege, of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. 16

COMl / Writ of Habeas Corpus Defined — It is a writ directed to the person detaining another, commanding him to produce the body of "Art. ''Art. "Art. "Art. "Art. "Art.

II. Sec. 2. V I . Sec. 23(1). II, Sec- 4. V I , Sec. 23(2). V I I , Sec. 18. H I . Sec. 15.

I N T E R N A T I O N A L L A W A N D WORLD POLITICS

682

the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, to submit to, and receive whatever the court or judge awarding the writ Bhall consider in that behalf. It is a high prerogative, common law writ of ancient origin, the great object of which is the liberation of those who may be imprisoned without sufficient cause. In the case of Nava v. Gatmaitan,™ then Chief Justice Ricardo Paras said that the writ was devised as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of persona] freedom, for it secures to a prisoner, the right to have the cause of hit detention examined and determined by a court of justice, and to have ascertained ifhe is held under lawful authority. 11

(NOTE: While a person illegally arrested may be denied the writ when it is suspended, the officer effecting such illegal arrest may be held liable.) 19

Query: What is the "war power" of Congress? ANSWER: The 1987 Philippine Constitution provides that "The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the exjstejice-of-e statu of war."'" This power carries with it the power to use all means calculated to weaken the enemy and to bring the struggle to a successful conclusioTr-However, constitutional limitations, such as due process and just compensation for expropriation of private property, remain, fn case of doubt, the same must be resolved in favor of constitutionality for after all the waging of war is essentially an exercise of police power. The power does not end with the mere declaration of the existence of a state of war: it continues until final victory, and necessarily includes the protection of war and human material from consequent injuries. 21

i2

^SANCTIONS OF WAR RULES Violations of the rules of war have the following sanctions:

"Moron. Rules of Court, Vol. I I , p. 449. '"L-4855, Oct. I I , 1951. "Griffin u. Wilcox, 21 Ind. 372. A r t . V I , Sec. 23 (1).

w

" S e e 3 Willoughby. Sec. 1033. 1568-1569. Hirabayashi r. U.S.. supra. 3i

WAR, N E U T R A L I T Y , AND POSTLIMINIUM

(1) protests lodged by commanders of belligerent forces with the enemy or with States that have remained neutral; (2) if the protest are unheeded, war reprisals are often resorted to, usually but not always, in kind (these are usually illegitimate means of warfare); 2

(3)

1

compensation and reparation for damages;

34

(4) punishment for war crimes (crimes against one's own criminal laws; against the enemy by violating the rules of war; against humanity and peace.™ In the case of In Re Yamashita, 327, p. I, a commander was held responsible for the illegal acts of his subordinates during the war, if they had been committed in pursuant to his orders, or if he had not been able to take the proper steps to suppress such illegal actions. This is the essence of the theory of "command responsibility." QUERY FACTS: X, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces was charged before a Military Commission set up in virtue of an Executive Order establishing a National War Crimes Office and prescribing rules and regulations governing the trial of accused war criminals. X contended that the Military Commission lacked jurisdiction to try him for acts violative of the Hague and Geneva Conventions as the Philippines was NOT a signatory of the first, and aigned the second only in 1947. Moreover, X challenged the participation of two American attorneys in the prosecution as violative of our national sovereignty. How would you rule on such a contention and meet such a challenge? ANSWER: The Military Commission has jurisdiction despite the fact that the Philippines was not a signatory to the Hague Convention, and signed the Geneva Convention only in 1947. Our Constitution states in its Declaration of Principles that "The Philippines renounces war as an instrument of national policy, 18

%a

Oppenheim-Lauterpacht, International Law, Vol. I I , p. 561. "Ibid., p. 696. "See Chapter of the Nuremberg Tribunal, and the Genocide Convention of 1946. " A r t . 2. Sac. 3.

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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;" and indubitably, among such accepted principles of international law, are the rules and regulations of the Hague and Geneva Conventions. Our Constitution has been deliberately general and extensive in scope, and is not confined to the recognition of rules as contained in treaties to which the government may have been or shall be a signatory. The participation of the two American attorneys is N O T violative of our national sovereignty. When the crimes charged against the Lieutenant-General were committed, the Philippines was under the sovereignty of the United States, and, thus, we were equally bound together with the United States and with Japan, to the rights and obligations contained in the treaties between the two belligerent countries. These rights and obligations were not erased by our assumption of full sovereignty. Our emergence as a free State entitles us to enforce the right of trying and punishing the guilty. This we can do with the active collaboration of our allies and friends in the last war.' 27

ANOTHER QUERY Ito Kono was born in Davao in 1913 of a Japanese father and a Filipino mother. In 1938, he was granted Philippine citizenship by the CFI (now RTC) of Davao. In February, 1946, he was indicted for war crimes before a military tribunal duly constituted by the Commander-in-Chief of the U.S. Armed Forces in the Philippines. The charges are that during the war Kono associated himself with Japan against the United States in the Philippines; that he committed atrocities against civilians; and that he looted Filipino property. Kono questioned the jurisdiction of the United States military tribunal on the ground that he w a B a Filipino citizen and civilian when he committed the crimes charged, and, therefore, his case falls within the exclusive jurisdiction of Philippine courts. Decide. ANSWER: The United States military tribunal had jurisdiction DESPITE Kono's Philippine citizenship and civilian status because:

^Kuroda v. Maj. Gen. Jalandoni. et al.. L-2662, March 28. 1949: Yamashita v. Gen. Styer. G.R. No. L-129, Ex Parte Quirin, 317 U.S. 1. 63 Sup. Cl.. Executive Order No. 68, establishing a National War Crimes Office, issued by the President of the Philippines. July 19. 1947.

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(a) at the time of the indictment we were still under American rule and sovereignty (so his Filipino citizenship is immaterial); (b) even civilians can be held liable for war crimes by a military tribunal. 2

In the case of Kuroda v. Maj. Gen. Jalandoni, * our Supreme Court held that "in accordance with the generally accepted principles of International Law of the present day, including the Hague Convention, the Geneva Convention, and significant precedents of international jurisprudence established by the United Nations, all those persons, M I L I T A R Y or C I V I L I A N , who have been guilty or planning, preparing, or waging a war of aggression and of the commission of crimes and ofTenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor." •-COMFORT WOMEN At the time that Japan's push for a seat on the UN Security Council has stalled, anti-Japan bashers are hell-bent on pursuing to the hilt an investigation by the world body of Japan's war crimes. At least four Asian Governments (South Korea, the Philippines, Malaysia, and Indonesia) "cannot fully trust Japan" until it, too, apologizes to its victims. These victims have included the many "comfort women" — Japan's euphemism for the women it forced into prostitution for its troops — that have been holding news conferences throughout the [Asian] region. (The Asian Wall Street Journal, "Ghost of War Cloud Japan's Global Status," May 12, 1993, p. 6.) Take the case of Maria Cora Henson, a Filipina who filed a lawsuit against Japan together with 17 others demanding compensation: "For 50 years I have been keeping this a secret. 1 decided today to come out in the open and inform you of the abuses committed against me by the Japanese." The sensitive issue elicited from the Japanese government a defensive, if not inept, response. Wrote the The Asian Wall Street Journal: "At first, [Japanese] government officials said that though brothels may have existed, private entrepreneurs were in "L-2662, March 28, 1949.

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charge. Then government said it had found documents proving army involvement. Officials apologized and promised to explore compensation. But government still says there lis! no evidence the women were actually forced to provide sex for soldiers, hinting that many of them may have been entrepreneurs themselves. T h a t has [not] satisfied Japan's Asian neighbors. South Korea is demanding a more thorough investigation. 'What we want,' South Korean President Kim Young-Sam Baid, Is for the Japanese government to investigate honestly and reveal the truth to both peoples' about the Imperial Army's brothels. That,' he said, 'will enhance the bilateral relationship between the two countries.' Philippine President Fidel V. Ramos raised the issue with officials during a trip to Tokyo in March [1993]. "The Japanese government does not want to face the war issue,' says Yoshiaki Yoshimi, a history professor, who has kept the matter alive by digging up new evidence." BAR The Japanese government confirmed that during the Second World War, Filipinas were among those conscripted as "comfort women" (or prostitutes) for Japanese troops in various parts of Asia. The Japanese government has accordingly launched a goodwill campaign and has offered the Philippine government substantial assistance for a program that will promote thru government and non-government organizations (NGOs) women's rights, child welfare, nutrition and family health care. An executive agreement is about to be signed for that purpose. The agreement includes a clause whereby the Philippine government acknowledges that any liability to the "comfort women" or their descendants are deemed covered by the reparations agreements signed and implemented immediately after the Second World War. Juliano Iglesias, a descendant of a now deceased comfort woman, seeks your legal advice on the validity of the agreement. Answer: The agreement is valid. The comfort women and their descendants cannot assert individual claims against Japan. As stated in Davis and Moore v. Reagan (453 U.S. 654), the sovereign authority of a State to settle claims of its nationals against foreign countries has repeatedly been recognized. This may be made without the consent of the nationals

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or even without consultation with them. Since the continued amity between a State and other countries may require a satisfactory compromise of mutual claims, the necessary power to make such compromises has been recognized. The settlement of such claimB may be made by executive agreement. THE BEGINNING OF THE WAR Theoretically, wars are begun with a previous and explicit warning, in the form either (1) of a reasoned declaration of war; or (2) of an ultimatum with a conditional declaration of war. A declaration of war ends peaceful relations between the States concerned. Upon the other hand, an ultimatum is a final demand for a clear and categorical reply on proposed concession a negative answer to which would result in the use of force. The UN Charter prohibits war, so it would seem that this need for a declaration or an ultimatum is today inapplicable. 19

30

31

Actually, wars are begun by (1) an act of belligerent force without a previous declaration of war; or by (2) a declaration of war, which must be communicated. 31

The outbreak of war has the following immediate effects: (1) Diplomatic, consular, and other non-hostile relations between the two countries involved are disrupted. The officials involved are permitted to return to their home State. Treaties on the rules of warfare become immediately effective. Generally, all intercourse, particularly commercial intercourse between citizens of the belligerents, is prohibited, with some exceptions. 33

34

(2) Enemy corporations (those where the controlling stockholders are citizens of the enemy State, regardless of the place of incorporation) are not allowed to continue their operations. 36

" A r t . I, Hague Convention of 1907, re: Opening of Hostilities. Oppenheim-Lauterpacht, International Law, Vol. II, p. 293. See Lawrence, Principles of International Law, p. 454. "Stone, Legal Controls of International Conflict, p. 310. "See Wilson, Handbook of International Law, p. 243. See Second Russian Co. v. Miller, Alien Property Custodian, 268 U.S. 552; See also the British — 1939 — and the U.S. —1941 Trading with the Enemy Acts. ^Filipinos Compania de Seguros v. Christian Huenefeld and Co., Inc., L-2294, Hay 2S, 1961 and David Winship v. Philippine Trust Co., L-3869, Jan. 31. 1952. M

31

u

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(3) Enemy persons are usually allowed to leave (unless their leaving would prejudice the State of residence). If they decide to remain, they may be interned and be provided with food, clothing, shelter, medical attendance, religious facilities, and be allowed, though in a restricted way, to communicate with foreign States. 38

37

(4) Enemy property on land, may be confiscated if owned by the government; may be requisitioned if owned by private persons. Enemy private property on the sea may be confiscated, generally, and the rule extends to enemy merchant ships, subject to certain exceptions. 38

39

PARTICIPANTS IN THE WAR -V Traditionally, there are two (2) participants in a war: the non-combatants (like civilian women and children) and the combatants (those who fight). The combatants may be the: (1) non-privileged combatants (like spies — those who under false pretenses try to obtain vital information from the enemy ranks, and who, therefore, when caught do not get the privilege of being considered as "prisoners of war") ; 40

(2) privileged combatants (they are privileged in the sense that if captured they are not supposed to be executed or convicted, but are entitled to become "prisoners of war"): (a)

the regular armed forces (army, navy, marine, air);

(b)

ancillary services (like doctors or chaplains);

(c) those who accompany the armed forces (like war correspondents); (d) levees en masse (spontaneous uprising of the populace); and (e)

guerrillas (or francs tireurs) provided that they: 1)

are under a responsible commander;

^ S e e Oppenheim-LauterpachL, op. cit., p. 306. "1949 Geneva Convention. S e e Oppeoheim-LauLerpacht, op. cit., pp. 278-279. ^Hague Convention of 1907. *°See Art. 29, Hague Convention of 1907. M

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2) wear a fixed, distinctive emblem; recognizable at a distance; 3)

carry their arms openly; and

4) conduct their operations in accordance with the laws and customs of war. 41

NOTE: Among the rights and privileges of prisoners of war are the following: (1) They must be treated humanely, shall not be subjected to physical or mental torture, shall be allowed to communicate with their families, and may receive food, clothing, educational and religious articles. (2) They may not be forced to reveal military data except the name, rank, serial number, army and regimental number, and date of birth; they may not be compelled to work for military services. (3) All their personal belongings except arms, horses, and military papers, remain their property; they are entitled in certain cases to be compensated for work done. (4) They may be interned in a town, fortress, camp, or any other locality (as long as the place is healthful and hygienic; they are bound not to go beyond certain limits.) (5) After the conclusion of peace, their 6peedy repatriation must be accomplished as soon as is practicable. 42

SOME RULES ON WARFARE While in general ruses and stratagems of any kind are permitted, it is prohibited: (1) to employ poison or poisoned arms; to pillage a town or plare, even when taken by assault; to wound or kill with treachery; (2)

to make improper use of a flag of truce;

(3) to "loot" (articles not having a direct military use: cash, jewelry, etc.) (to obtain "booty" or articles which can be law-

"Art. 1, Hague Convention of 1907, (respecting, the laws and customs of war on land): Arte. 4 and 8, Geneva Convention of 1949. "See the 1949 Geneva Convention on the Treatment of Relatives of War.

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fully seized because of their military value, e.g., vehicles, are allowed). 43

(4) to bombard undefended places; to attack by ship or submarine enemy merchant ships unless a "visitation" has been refused; to attack ships of a special character or mission, e.g., hospital, religious ships; to plant "anchored mine" (unless they become harmless after they break loose) or "unanchored mine" (unless they can do harm only within one hour after being released)." (5) to bomb undefended or "open cities'"(those declared as such — open to the free entry to the invaders or the enemy — and, therefore, U N D E F E N D E D from any front) to deliberately bomb civilians. * s

/

WAR CRIME' DEFINED A war crime "is any act for which soldiers or other individuals may be punished by the enemy on capture of the offender." (Gerhard von Glahn, Law Among Nations: An Introduction to Public International Law [1992 ed.], p. 870). The category is two-pronged so as to include: First, acts committed in violation of international law and the laws of the criminal's own country; and Second, acts in violation of the laws of war and undertaken by order and in the interest of the criminal's own State. WHO IS DEEMED A 'WAR CRIMINAL'? According to Prof, von Glahn, "any person, whether a civilian or a member of a State's armed forces, who commits an act that violates a rule of the international law governing armed conflicts is responsible for his act and is liable to punishment as a war criminal. ' 7

" A r t s . 16-17, Geneva Convention of 1949. "See the London Naoal Treaty of 1930; Hague Convention-of 1907. " S e e Art. 25, Hague Convention of 1907.

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MAJOR KINDS OF WAR CRIMES There at least four (4) kinds of war crimes, to wit: 1.

violations of the rules governing warfare

2. hostile armed acts committed by persons who are not members of recognized armed forces 3.

espionage, sabotage, and war treason

4. all marauding acts (G. von Glahn, Law Among Nations: An Introduction to Public International Law [1992 ed.], p. 871). SOME ACTS CONSTITUTING WAR CRIMES 1.

using poisoned or otherwise forbidden arms or munitions

2. treachery in asking for quarter or simulating sickness or wounds 3.

maltreating corpses

4. firing on localities that are undefended and without military significance 5.

abusing or firing on a flag of truce

6.

misusing the Red Cross or similar emblems

7. troops wearing civilian clothes to conceal their identity during the commission of combat acts 8. improperly using privileged (exempt, immune) buildings for military purposes 9.

poisoning streams or wells

10.

pillaging (i.e., plundering or booting spoils found in a

11.

committing purposeless destruction

war)

12. compelling prisoners of war to engage in prohibited types of labor 13. violating surrender terms 14. killing or wounding military personnel who have laid down arms, surrendered, or are disabled by wounds or sickness 15.

assassinating and hiring assassins

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16. ill-treating prisoners of war or the wounded and sick, including despoiling them of possessions not classificable as public property 17.

killing or attacking harmless civilians

18. compelling the inhabitants of occupied enemy territory to furnish information about the armed forces of the enemy or his means of defense 19. appropriating or destroying the contents of privileged buildings 20. bombarding from the air for the exclusive purpose of terrorizing or attacking civilian populations. 21. attacking enemy vessels that have indicated their surrender by lowering their flag 22. attacking or seizing hospitals and all other violations of the Hague Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention 23.

committing unjustified destruction of enemy prizes

24. using of enemy uniforms during combat and using the enemy flag during attack by a belligerent vessel 25. attacking individuals supplied with safe-conducts, and other violations of special safeguards provided 26.

breaking parole

27. destroying civilian cultural objects and places of warships (unless true military necessity demands it) 28. conspiring, directly inciting, and attempting to commit, as well as complicity in the commission of crimes against laws of war 29.

taking hostages

30.

killing hostages

31. grave breaches of Article 50 of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field and of Article 51 or the 1949 Geneva Convention Applicable to Armed Forces at Sea: "willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property

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not justified by military necessity and carried out unlawfully and want only" 32. grave breaches of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, as listed in Article 130: "willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the focus of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed" in the convention 33. grave breaches of the Fourth Geneva Convention of 1949, as detailed in Article 147: "willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and want only" 34. forcing civilians to perform prohibited labor [e.g., the use of so-called "comfort women" by the Japanese forces in WW IIIQUERY In time of war, what is the act of the enemy termed as FORAGING? ANSWER: Foraging, in wartime, is the actual taking of provisions Tor men and animals by the occupation troops themselves in cases where lack of time makes it inconvenient to obtain supplies by the usual or ordinary methods. Compensation must, of course, be made at the end of the war. 46

IRAQ'S INVASION OF KUWAIT The war that should not have happened actually happened. From the very beginning, it was bound to end with great loss to

'"Sec Wilson end Tucker, International Law, p. 265.

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the aggressor. Nevertheless, it was a senselesB, futile, a n d bloody holocaust. Actually, t h e w a r h a d a simple beginning. Iraq invaded Kuwait with the precise intent of annexing it on the theory that a long, long time ago the latter wae part of Iraq (formerly known as Babylon, later Mesopotamia). Even his Holiness Pope John Paul II showed his displeasure by condemning Iraq's invasion of Kuwait as a gross violation of international law. The only megapower, the United States of America, entered the scenario together with many members of the United Nations to make effective the purposes and principles of the United Nations to make effective the purposes and principles of the United Nations Organization. For that matter, a principal UN organ, the Security Council, has the "primary responsibility for the maintenance of international peace and security." Concomitantly, the Council's discharge of this responsibility that includes resort to other authorized measures may refer to "such action by air, sea, and land forces as may be necessary to maintain peace and security." Philippine Supreme Court Associate Justice Florentino P. Feliciano, a lecturer of the Hague Academy of International Law, in his article, Process and Culture in Development Negotiations: The Management of Consent, writes: "Modern international relations are carried on by a large variety of strategies and specific measures. Upon examination, all these measures or courses of action, from the most comprehensive and strategic to the most detailed and tactical, will be seen to embody elements of consent and coercion, in varying degrees and different combinations. For purposes of historical inquiry and analysis, it may be useful to think in terms of a pole of pure consent at one end of a pole of pure coercion or naked exercise of force at the other end, and of a continuum in between. Most specific historical acts or measures or transactions may be located somewhere in that continuum: some will be closer to the one rather than to the other pole. Only infrequently, if at all, will particular acts tend to exemplify consent or coercion with proto-typical purity." Dr. Feliciano, also a director of the International Development Law Institute, avers further: "As might be suspected, the consent-coercion continuum in the relations between sovereign politics finds some recognition in the structure of public international law. The law of treaties and other international agreements addresses issues raised by relationships exhibiting in dominant degree the element of consent freely given. The law on armed

WAR, NEUTRALTrY, AND POSTLIMINIUM

conflict, earlier called the law of war, seeks to regulate and mitigate relationships characterized by the mutual, systematic and relatively extensive and prolonged applications of military force, ordinarily regarded as the most intense form of coercion. Disputes where the parties invoke much less intense forms of coercion as intruments of policy are dealt with under the rubrics of international delinquencies or torts and the international responsibility of States." The use of force by the U.S.-led Allied Forces was justified as the principal collective enforcement action stipulated in the UN Charter. Thus, the use of force here is akin to the force used by a policeman not to perpetrate a crime but precisely to put an end to it. Disputes, conflicts, and the like inevitably lead to "war," a classic term defined by Karl Von Clausewitz as "the extension of politics by other means." The politics and economics of oil made the Gulf War inevitable. Intones Philippines Free Press editor-inchief Teodoro M. Locsin: "It was $16 per barrel before Saddam Hussein's Iraq seized Kuwait's oil wells. He had gone to war against a fellow-Muslim State, Iran, for eight years — shelling, bombing, gassing Iranian men, women, and children. Bankrupted by the unsuccessful war, he invaded Kuwait [another Muslim neighbor] to bail himself out of his foreign debts — by increasing Iraq's supply and price of oil." Indignant (i.e., justified anger), the U.S. and its allies in representation of the UN forces declared war on Saddam's Iraq. "The Mother of all battles," Saddam dubbed the final showdown between his forces and the U.S.-Allies. "Bombardment, speed and surprise. Air attacks, having severed communications," opined Louise Molina, contributed immensely to the Operation Desert Storm victory. For one has to take into account here the strategy of combining air power and ground operations under a single command, indeed a decisive factor in the rout of the Iraqi army. The strategy applied is the so-called "Air Land Battle Doctrine." This doctrine relies on engaging enemy forces deep behind the front line and combines conventional and electronic warfare, making use of high technology weapons and air mobility. As a historical footnote, the AirLand battle scene originally was designed to deal with the Soviet Union's superior number of troops and hardware and was a perfect vehicle for the Gulf War. Iraq's millionman army outnumbered the allied forces 3-2, and its 4,700 tanks compared with 3,500 for the allies. As a necessary consequence, the only thing that needs to be done is to bring Saddam Hussein to trial for his crimes, all violative

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of the Nuremberg rules as well as other customary and conventional crimes. With crimes committed ranging from waging a war of aggression, bombing and murdering innocent civilians, maltreating prisoners of war, supporting terrorism, and creating environmental havoc, there is, fortuitously, an existing mechanism for a Nuremberg-type tribunal. Alan Derhowitz, writing for the United Feature Syndicate, said: T h e Nuremberg Court was established by the victorious allies in World War I I . It disbanded after it sentenced the convinced war criminals. Its decisions serve as a substantive precedent, but without an enforcement mechanism. [Moreover,] the rules established by the Nuremberg Court have never been applied to any war criminal since the immediate postWorld War II period. Nor has that been because of the absence of war crimes and crimes against humanity." Since international law, Dershowitz enthuses, is as much a matter of customs as it is of statutes, there is a need to build a stronger, deeper, and more neutral foundation for international law before it can be selectively invoked against defeated enemies. Saddam Hussein, adds Dershowitz, will probably be caught and brought to "justice" by his own people, and in this respect, it becomes poetic. One nagging question: Why was the Iraqi-Kuwait confict called a "Gulf" war? The dictionary defines a gulf as a part of an ocean or sea extending into the land, i.e., a partially landlocked sea that is usually larger than a bay. In the 1991 battle royale, the protagonists bordered the Gulf. But actually, the "war" on the sea was very minimal. Now that the elusive peace has at long last come, we can paraphrase the characteristic language of Shakespeare: "Oil's well that ends well." l^r+NTENSfTYCONI*^ According to U.S. General Carl Stiner, head of the American Special Operations Command: "In a world marked by conflicting political, social, and economic systems, there will always be those who consider their interests at odds with the United States." And LIC (Low-Intensity Conflict) is one way to deal with those whose "interest are at odds" with the U.S. How is LIC denned? The United States military defines LIC as a "political-military confrontation between contending States or groups below conventional war and above the routine, peaceful competition among States . . . waged by a combination of means

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employing political, economic, informational and military instruments. Low intensity conflicts are often localized, generally in the Third World, but contain regional and global security implications." Some of the LIC tactics employed in specific special operations, include inter alia: (1) dropping high-tech parachutes to drift thru the night sky and report on enemy positions. (2)

disabling communications towers and water wellB.

(3) using lasers to target Scud missile launchers and tank emplacements for air attack. (4) placing explosive charges on bridges to cut off the enemy's avenues of retreat. Acording to David Isenberg, a senior research analyst at the Centre for Defense Information in Washington, D.C. specializing in U.S.-Third World military affairs, "Policy-makers who hesitate to deploy regular military forces see special forces as the ideal response to insurgencies, terrorist actons, and hostage taking." Thus, in his Shoe* Troops Meet Post-Cold War Threats (cited in Manila Bulletin, Dec. 14, 1992, pp. 11, S - l l ) , Isenberg wrote: "Long before the term special operations existed, U.S. military forces were intervening in "low-intensity conflicts" and were carrying them out as well. U.S. Marines did so during 1801-07 in the war against the Barbary pirates. As U.S. economic interests expanded worldwide in the late 19th and early 20th centuries, so did the interventionary use of the Marines. "Since 1985, the Marine Corps have had what they call the marine Expeditionary Unit/Special Operations Capable, or M E U (SOC). Six of these units, two of which are special operations capable, rotate on routine deployments to the Mediterranean and the Pacific Rim. In 1988 they saw combat in the Persian Gulf, attacking Iranian oil rigs and landing on suspected mine-laying ships. A typical M E U contains about 2,500 Marines and sailors trained to carry out some 18 specific missions, from non-combatant evacuations operations (such as Liberia in 1990) to training foreign military forces. The war against Iraq was hardly the first time for U.S. special forces in the Middle East or the Persian Gulf. When T W A

INTERNATIONAL LAW AND WORLD POIJTIC8

flight 647 w a s hijacked in 1966, the Army's Delta Force w a s flown to Europe to await an opportunity to launch a rescue attempt. Three months later, when the Achille Laura w a s taken over by renegade Palestinian fighters, Delta Force and the SEAL team prepared for a rescue attempt, and SEALS participated in the subsequent capture of some hijackers when their plane waB intercepted. In 1987 the Army's special operations helicopter unit, Task Force 160, deployed secretly from Fort Campbell, Kentucky, to the Persian Gulf as part of the reflagging operations of the Kuwaiti oil tankers. They played a key role in attacking the Iranian oil platforms being used as launch sites for attacks on the tankers. SOF personnel conducted many missions in the 1989 U.S. invasion of Panama. That turned out to be only a warm-up for what was to come. The U.S. military buildup in the Middle East after Iraq'B invasion of Kuwait included nearly 10,000 special operations forces — the largest deployment of special forces in history. Among the first units to deploy to Saudi Arabia in August 1991, they carried out missions before, during and after the war, and included special forces from the Army, Air Force and Navy, and Psychological Operations ( P S Y O P S ) and Civil Affairs units. "A Navy SEAL team secretly boarded a freighter intercepted by the U.S. Navy in mid-August and infiltrated Kuwait to protect the U.S. embassy. One unconfirmed report asserts that coalition special forces tried but failed to capture a Soviet adviser to the Iraqi Army during the war. Members of the Air Force's 1st Special Operations Wing dropped the massive Vietnam-era 15,000 pound BLU-82 bombs, killing large numbers of Iraqi soldiers and inducing others to desert or surrender. The use of BLU-82 bombs was considered a psychological as well as an offensive operation, and was followed by drops of 29 million safe-passage leaflets and broadcast from an 18-hour-a-day Voice of the Gulf radio station. In one case, an entire Iraqi battalion surrendered to a U.S. helicopter patrol after the PSYOPS team braodcast that 'death from above' was imminent. On the final day of the war, the Iraqis had moved 26 Scud missiles near their western border for a saturation attack on Israel. Members of the USA Delta Force, along with British SAS commandos and regular U.S. Air Force personnel, destroyed them. Military planners expect special forces to play a role in literally all possible

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future conflicts. They no doubt will play a greater role in the Middle East, especially in intelligence gathering aB [the U.S.] Congress moves to reshape the intelligence establishement. Covert operations traditionally conducted by the CIA may be assigned to special forces. British air station RAF Alconbury will be a command and operations center for U.S. airborn special forces." As the "golden boys" of the United States national security establishment, special operations budgets of these U.S special forces have not taken cuts along with the rest of the military services. In Fiscal Year 1991, the Special Operations Command received nearly $2.5 billion. In FY 1992, it rose to over $3.1 billion, and the FY 1993 request, was nearly $3 billion. RESTRICTING THE USE OF CONVENTIONAL WEAPONS Meeting under the auspices of the United Nations ( U N ) in Geneva on Oct. 10, 1980, 76 nation-States formally approved a treaty restricting the use of certain conventional weapons. Armed with the intention of protecting civilian populations and, to a certain extent, combatants, against conventional weapons perceived to be particularly inhumane or perfidious, the "Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects," has embodied three protocols that restrict certain exploding fragment weapons, mines, booby traps and other remotely-controlled devices, and incendiary weapons. The Protocol on Non-Detectable Fragments (Protocol I) prohibits the use of any weapon the primary effect of which iB to injure by fragments which in the human body escape detection by x-rayB.

The Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps, and other Devices (Protocol I I ) applies to weapons used in land-warfare only, which includes within that category beaches, water-way crossings, and the river crossings. It prohibits the use of mines, booby traps, and certain other devices against civilians, a n d any "indiscriminate use." (Indiscriminate use is defined by the treaty as "any use not specifically directed against military objectives, or when directed against military ob-

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jectives, use which predictably may cause injuries to civilians and civilian objects excessive in relation to any military advantage anticipated). The treaty protects civilians and anyone involved in humanitarian efforts by prohibiting the use of any booby-traps manufactured to look like harmless portable objects, and by specifying certain objects to which booby-traps may not be attached and locatioins which may not be implanted with booby-traps. (Among the objects to which attaching booby-traps is strictly prohibited are medical supplies and equipment, children's toys, food and drink, etc.; booby-traps may not be interred at gravesites, places of worship, or historic monuments). It also generally bans any booby-trap which is designed to cause superfluous injury or unnecessary suffering. The Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol I I I ) consist of two articles. Among the definitions in Art. 1 is one of "incendiary weapons" which is notable for what it excludes, i.e., any reference to napalm or the particular for what it excludes, i.e., any reference to napalm or the particular class to which napalm belongs, "flame weapons." Art. 2 prohibits making civilians the target of any attack by incendiary weapons. Be it noted that the Convention should not be interpreted as detracting from other obligations imposed by the international humanitarian law applicable in armed conflict. For that matter, there are essentially two (2) bodies of law applicable to armed conflict, to wit: (1) the law of the Hague; and (2) the law of Geneva. The law of the Hague restricts the means and methods of warfare. It includes: (a) the St. Petersburg Declaration of 1868, prohibiting the use of exploding bullets; (b) the Hague Convention of 1899, revised in 1907, prohibiting, inter alia, the use of "dumdum" bullets; and (c) the Geneva Protocol of 1925, banning noxious gas, and bacteriological warfare. Moreover, the law of the Hague protects combatants against inhuman methods which were characterized at an early date as those causing unnecessary suffering at having indiscriminate effects and has been negotiated from a primarily military point of view. Upon the other hand, the law of Geneva is intended to protect non-combatants, including military personnel who have been removed from the theater of war either thru captivity or injury. It

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establishes broad humanitarian principles to limit harm to noncombatants. Going back to the 1980 Convention, suffice it to say that its effort in combining the approaches of the laws of the Hague and Geneva to restricting the use of specific weapons against civilians, might lead to a military assumption that the use of other weapons against civilians iB acceptable, despite the law of Geneva. LAW OF WAR REVISITED It is a sad reality that the law (or laws) of war is always unfair to the civilian population. To correct this inequity, a Protocol (i.e., Protocol I) dealing with international armed conflicts has been put in place aimed to improve the protection available to the victims of armed conflicts. (Note that this is a Protocol to the four Geneva Conventions of 1949 in the Prevention of War Victims). Two (2) subject areas of this Protocol are: (1) bombardment; and (2) emergence of the mercenaries (to be discussed in the next sub-topic). Anyone familiar with the strategic bombing campaigns of World War II and a recent vintage, the Gulf war of 1991, should take cognizance of Article 51 of the Protocol prohibiting target area bombardment in cities. Article 51 prohibits indiscriminate attacks and defines them as: (a) those which are not directed at a specific military objective, i.e., where the attacker does not take aim, but fires wildly; (b) those which employ a method or means of conduct which cannot be directed at a specific military objective, i.e., an unguidable or uncontrollable weapon, a weapon that may not exist; or (c) those which employ a method or means of combat, the effects of which cannot be limited as required by this Protocol. Said article in question goes on to add an example of attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. The term "bombardment," while clearly understood to mean bombardment by artillery as well as by air, the meaning of'clearly separated and distinct' is far less certain. There is aome negotiating history to indicate that a significant distance between objectives

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should be required. ThiB means that if the objectives are sufficiently separated so that they can feasibly be attacked separately with the weapons IB evident to the attacker, then they must be attacked separately in order to reduce the risks to the civilian population. It is believed that a bombardment could violate this rule while not violating the rule of proportionality, although in practice, there might be few instances in which the rule of proportionality was not also violated. Perhaps the most significant contribution made by the target area bombardment provision of Art. 51 is its greater objectivity, i.e., that it may be easier for a commander to determine whether he can feasibly attack several objectives separately than to determine whether an attack would violate the proportionality rule. George H. Aldrich, an ambassador of the U.S. Department of State, has made an observation on the issue of bombardment in this wise: "In the context of strategic nuclear warfare, targets would have to be very widely spaced indeed to permit their being attacked separately. Since the military objective in such cases is likely to be a broad manufacturing, transportation, and communication complex, the application of this rule to nuclear warfare would probably offer little guidance. In this connection, it should be noted that, when signing Protocol I, the United States made its signature subject to the understanding that the rules established by this protocol were not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons. "In fact, the statement of understanding was not prompted by the rule on target area bombardment, but rather by the rule on the protection of the natural environment; but the understanding would also serve to rebut any allegations that the former rule, to the extent that it expands the preexisting restrictions on bombardment, would affect the targeting and the use of nuclear weapons by the United States. While it might seem hypocritical to suggest that Protocol I restricts target area bombardment in cities by means of conventional weapons but not means of nuclear weapons, the fact is that the (Geneva) conference, from its beginning in 1974 thru the final adoption of the Protocol, operated on the understanding that the new rules it was developing would not deal with nuclear weapons and their effects.

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"It was widely thought that the rules designed to be compatible with the use of nuclear weapons would have little restraining effect on conventional warfare, and with it was accepted that efforts to restrict warfare with conventional weapons for the purpose of improving protection of civilians should move forward even if restrictions on the use of nuclear weapons could not be adopted. It is difficult to quarrel with that judgment, particularly as wars continue to be fought .with conventional weapons, while the use of nuclear weapons happily has been avoided since 1945." MERCENARIES Relative to the law of war is the topic on mercenarJes^Article 47 of Protocol I dealing with international armed coruTicts, provides that "a mercenary shall not have the right to be a combatant or a prisoner of war." However, this exception is more apparent than real because the definition of "mercenary" is carefully designed to ensure that only true mercenaries are covered and that the provision cannot be misused to deny combatant and POW (Prisonerof-War) status to any other persons. Three factors are considered vital: First, the provision requires that, to be a mercenary, a person must be specially recruited in order to fight in an armed conflict, i.e., as a combatant, not merely as an adviser, and for a particular armed confict, not simply to be available for any conflicts that may come along. Second, it provides that a person cannot be a mercenary unless and until he "does, in fact, take a direct part in the hostilities," so even a mercenary is not a mercenary until he goes into combat. Third, it is specified that to be a mercenary, a person must be motivated "essentially by the desire for private gain and, in fact, is promised material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party." This standard requires proof both of motive and of the fact of promised compensation that is significantly higher than that of others who have similar responsibility and perform similar functions. Thus, fighter pilots, for example, can be paid much more than infantry, provided all pilots of equal rank receive roughly the same pay and that much higher pay is not given to certain "specially recruited" pilot. To ensure that even these strict standards cannot be misused to label a legitimate soldier a mercenary, Article 47 goes on to say

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that certain additional categories of persons cannot be considered mercenaries, i.e., nationals of any party to the conflict, a member of the armed forces of any State not involved in the conflict who has been sent on official duty by that State. Certainly, there have been persons in recent conflicts, who might qualify as mercenaries under the text, but it would not seem difficult in the future for any party to a conflict to avoid its impact, most easily by making the persons involved members of its armed forces. While the negotiators of this provision were definitely aware of the possibilities for evasion, they were more concerned about the risks of abuse, i.e., the denial of P O W status thru charges that prisoners were mercenaries. BELLIGERENT OCCUPATION AS DISTINGUISHED FROM MILITARY OCCUPATION "Belligerent occupation" is the temporary military occupation of the enemy's territory D U R I N G the war; the rights and obligations of the "belligerent occupants" are governed by the principles of international law. Upon the other hand, "military occupation" takes place, when the victor takes aver enemy territory AFTER the conclusion of the war; the rights and obligations of the "military occupants" are generally premised on the provisions of an agreement or treaty on the matter. The Japanese occupation of the Philippines during the last Pacific War is an example of "belligerent occupation;" upon the other hand, the occupation of Germany and Japan by the Allied Powers at the end of World War II exemplifies "military occupation." T a n Se Chiong v. Director of Posts L-5920, June 25, 1955 FACTS: Quiuan, Samar, Philippines was occupied by the Japanese forces, which later fell in July, 1942. In their absence, guerrilla Filipino forces assumed control until 1944, when the invaders returned. During the intervening period, should we consider the place as one under effective belligerent occupation by the enemy? HELD: Yes. Like possession in civil law, belligerent occupation does not require that the occupant should have its feet continuously planted on every square foot of territory — provided it maintains effective control and military superior-

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ity therein, being able to send in case of attack, sufficient forces to assert its authority within a reasonable time. As a matter of fact, the guerilla forces in the region were not able to prevent the return of the Japanese Forces. Let it be borne in mind that enemy occupation of a particular territory is a question of fact. Mere temporary withdrawal does not, make the place "unoccupied territory." OBJECTIVES OF BELLIGERENT OCCUPATION The Law of Nations acknowledges that the belligerent occupant has for its principal object the security, support, efficiency, and success of its own forces in a hostile land inhabited by the nationals of the enemy. To attend to the unhindered prosecution of the war, he has to weaken the enemy. He has to provide for peace and order in the rear of his armies; he has provide for peace and order in the rear of his armies; he has to systematize the development of the resources of the occupied land so that he may utilize said resources. American courts hold that during the occupation, the sovereignty of the de jure government or the government in exile in suspended.™ The theory of suspended sovereignty stated in the case of U.S. v. Rice (4 U.S. 246) is a reiteration of the doctrine in U.S. v. Hayward, also penned by Justice Story; the theory was maintained in the case8, inter alia, of Fleming f. Page, Shanks v. Dupont, Thirty Hogsheads of Sugar v. Boyle, U.S. v. Reiter,* the theory was embodied in the Hague Regulations of 1907, and has been adopted by Hyde (1945), Hackworth (1940), Colby (1926), Oppenheim (1944), McNair (1944), and Wheaton (1945). However in the Philippine case of Anastacio Laurel v. Eriberto Aiisa, L-409, 44 O.G. 1176, the Philippine Supreme Court held that it was not the sovereignty of the legitimate government that was suspended but merely the ability to exercise that sovereignty. 47

48

49

50

61

3

"Hyde, International Law. Vol. Ill, Sec. 690. "Peralta u. Director of Prison*. L-49. Nov. 12. 1945. "New Orleans v. Steamship Co., 20 Wall, 187. "Colby, Col. Law Review, Vol. XXVI, p. 162. 'Mr. Justice Story, a peaking of the British control or the port of Castine, Maine in the caae of U.S. v. Rice, 4 U.S. 246. "26 Fed. Caan 240. "27 Fed. Cases 773. s

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U.S. v. Rice 4 U.S. 246 FACTS: During the U.S.-English War of 1812, the port of Caetine, Maine was occupied by the English belligerent forces, till the ratification of the peace treaty in 1815. During that period of occupation, civil and military government was established, and taxes were collected, by the British Government. Now then, certain imported goods had been introduced to the port, without paying taxes to the U.S. Government. At the close of the war, the place was by treaty restored to the United States, and after that had been done, the U.S. Government sought to recover from the importers (who had made the introduction thereof during the British occupation) duties thereon allegedly due the U.S. Government. The U.S. claim was predicated on the premise that its law had always been in force in Castine, although the place was at the time held by British forces in hostility to the United States, and U.S. laws could not then be enforced. ISSUE:

Should the duties be paid?

HELD: The claim for duties cannot be sustained. The sovereignty of the United States over the territory was SUSPENDED and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants were under T E M P O R A R Y allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them for where there is no protection or allegiance or sovereignty, there can be no claim to obedience. [NOTE: In the case of U.S. v. Reiter, 27 Fed. Cas. p. 773, Judge Peabody judicially commented on the Rice decision in the following words: "It (the Rice decision) was asserted by the Supreme Court of the United States with entire unanimity, the great and venerated Marshall presiding, and the erudite and accomplished Story delivering the opinion of the Court that such is the law, and it is so adjudged that no other laws could be obligatory."]

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Anaatacio Laurel v. Eriberto Miaa L-409, 44 O.G. 1176 FACTS: Anastacio Laurel, a detainee for alleged collaboration with the enemy during the Japanese occupation, petitioned for a writ of habeas corpus, alleging that Art. 114 of the Revised Penal Code (re treason) could not be applied to him for MB actuations during the occupation because at that time the sovereignty of the legitimate government of the Philippines had been suspended, and consequently, the correlative allegiance of Filipino citizens thereto was also suspended. HELD: The sovereignty of the legitimate government of the Philippines was NEVER SUSPENDED; what was only suspended was the exercise of that sovereignty. Therefore, throughout the period of belligerent occupation, the allegiance of the Filipinos to the legitimate government was NEVER S U S P E N D E D . There is no such thing as SUSPENDED ALLEGIANCE. A citizen or subject owes, not a qualified and temporary, but an absolute and permanent allegiance which consists in the obligation of fidelity and obedience to his government or sovereign. This absolute and permanent allegiance should not be confused with the qualified and temporary allegiance which a foreigner owes to the government or sovereign of the territory where he resides, so long as he remains there, in return for the protection he receives, and which consists in the obedience to the laws of the government or sovereignty. RIGHTS OF THE BELLIGERENT OCCUPANT The belligerent occupant has the right: (1) to reestablish or continue the processes of orderly government: to enact necessary legislation, and even penal laws, provided they are not ex post facto in character." The commander of the occupying forces may be regarded as the supreme legislative, executive, and judicial authority, with powers limited only by laws and customs of war, and directives from higher authority. He may supervise distribution of food and other supplies, control prices,

" A r u . 64 and 66, Geneva Convention of 1949.

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and prevent both hoarding and the existence of black markets. (Tan Tuan u. Lucena Food Control Board, 84 Phil. 687). The imposition of the death penalty is, however, restricted to certain offense, e.g., espionage and deliberate homicide. * 5

(2) to take measures for the protection of the inhabitants, to shield them from torture and brutal treatment, to minimize unemployment. (In no case should hostages be taken). * 5

(3) to requisition goods (with proper cash or future payment) and services in non-military projects (in no instance is conscription allowed.) 57

(4) to demand taxes and contributions (over and above the taxes) to finance military and local administration needs. " 5

(5) to issue legal currency, both for the preservation of peace and order, and for military needs (but the currency ought not to be debased.) 59

60

(6) to use enemy property (whether public or private), but with respect to private property, a returning or indemnification must be made. While seizure may be allowed, confiscation (i.e., without indemnification at the end of the war) is prohibited. (See Republic v. Lara, 96 Phil. 170). Religious or properties for charitable use are in the category here of private properties. (Banaag v. Encarnacion, 83 Phil. 325). ANGARY This refers to the right of a belligerent State — in cases of urgent necessity — to destroy or use neutral property on its own or enemy's territory or on the high Bees. The right of angary, which is a kind of wartime embargo, extends in particular to neutral vessels and other means of transportation.

^See Arts. 67-70. Geneva Convention of 1949. A r t e . 27-34; 52-59. Geneva Convention of 1949. "Arts. 51, 55, 57. Geneva Convention of 1949. "Arts. 46, 49, 51, Hague Regulations. '"Art. 43, Hague Regulations; Haw Pia v. China Banking Corporation. 80 Phil. 604. ^Villaruel v. Manila Motor Co., L-10394. Dec. 31, 1958; Arts. 53 and 55, Hague Regulations. M

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Del Rosario v. Sandico 85 Phil. 170 An act of a belligerant occupant, iB valid at the beginning, continues to be valid and will not be regarded as retroactively void simply because the action later becomes confiscatory and illegal. Only the latter acts will be unlawful. H a w P i a v. China Banking Corporation 80 Phil. 604 FACTS: Haw Pia owed defendant a sum of money (Philippine pesos), secured by a mortgage. During the Japanese occupation, the Bank of Taiwan was given the right of the Japanese Military Administration to liquidate the assets of enemy banks (one of which was the defendant China Banking Corporation). Haw Pia then paid off the mortgage, not to the defendant, but to the Bank of Taiwan. Liberation came. Haw Pia then asked the defendant for the cancellation of the mortgage on the ground that the debt had been paid. The defendant refused on the theory that the Bank of Taiwan was not authorized to collect the credit; it, therefore, insisted on the payment of the debt. ISSUES: (a) Did the Japanese Military Administration have the right o liquidate and freeze the assets of enemy banks? (b) Did the payment of Haw Pia to the Bank of Taiwan extinguish the debt? (c) Was the Japanese currency at the time to be considered legal tender? HELD: (a) Yes, the Japanese Military Administration, being the belligerent occupant, had under the principles of international law, the right to liquidate, sequester or freeze the assets of enemy banks. (b) YeB, payment by Haw Pia to the Bank of Taiwan extinguished the mortgage indebtedness, inasmuch as under the law then prevailing, the Bank of Taiwan was clearly authorized to receive payment. Hence, the mortgage should be cancelled.

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(c) Yes, the Japanese military notes were legal tender because under international law, the invading power has the right to issue currency for circulation here in the occupied territory. NOTE: Sequestration is also meant, not only to preserve enemy property, but also to prevent said property from being used against the belligerent occupant. (Haw Pia, supra; People's Bank and Trust Co. v. Philippine National Bank, 88 Phil. 625). QUERY In Haw Pia v. China Banking Corporation, 80 Phil. 604, it was held that the Japanese Military Forces had power to sequestrate and impound the assets or funds of the China Bank and for that purpose to liquidate it by collecting the debts due to said bank from its debtors and paying its creditors, the Bank of Taiwan having been appointed as liquidator with authority to collect. Professor Hyde characterized such a ruling permitting a local debtor "fully to satisfy her pre-war peso indebtedness to the local office of a foreign creditor bank by payment in a greatly depreciated [the term "depreciated" is akin to the word "devaluated"l. ' Japanese military currency" as violative of international law. Is such a comment of Prof. Hyde well founded? Explain. 6

ANSWER: It would seem that the comment of Prof. Hyde is NOT well founded. Firstly, the power of a belligerent occupant to issue military currency is based,, not only on the belligerent occupant's general power to maintain law and order recognized in Art. 43 of the Hague Regulations, but also on military necessity. Secondly, the practice was also resorted to by the Allies in Sicily, Germany, and Austria. Thirdly, when the Japanese military occupants issued the proclamation of January 3, 1942 (declaring the Japanese Military Notes of small denominations up to P10.00 as legal tender at par with the Philippine peso, the purchasing power of said notes was then the SAME as that of the Philippine peso. "'" Fourthly, there was no confiscation nor even an intent to confis1

"'Edgardo C. Paras. Jr., Economics for Lawyers (Manila: Hex Book Store. 1993), pp. 257-282. ^''Allison J. Gibbn, el al. v. Eulogio Rodriguez. . I u! I 1 191. Dec. 21. 1950

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cate the assets of the China Banking Corporation, it appearing that at the same time, the Japanese Army also paid the obligations of the Bank. Fifthly, to hold, a contrary doctrine would greatly disturb so many financial and property transactions entered into during the Japanese occupation. 62

Villaruel v. Manila Motor Co. L-10394, December 31, 1958 FACTS: During the last war, the Japanese Army occupied property which had been leased by a Filipino to another Filipino. The occupation was essential for military needs. Issue: Should the lessee pay rent to the lessor for the period during which the property was occupied by the Japanese Forces? HELD: No. For under International Law, the belligerent occupant has the right to billet or quarter its troop in private lands and buildings for the duration of its military operations or as military necessity should demand. The trespass was not an act of mere trespass, but a trespass in law; not a "perturbation de mero hecho" but "perturbacion de derecho." Since, therefore, the trespass was under color of title, the same must be chargeable to the lessor for it is he who warrants the peaceful and adequate enjoyment of the premises. The lessee's obligation to pay ceased during the deprivation of the possession. In a contract of lease, as distinguished from a contract of sale, the cause or consideration must exist A L L THROUGHOUT the duration of the contract; in a contract of sale, it is enough that the cause should exist at the time of perfection or meeting of the minds. NOTE: The belligerent occupant is allowed to punish acts of espionage and war treason. (a) Espionage (or spying) — is an act of a person who under false pretenses or clandestinely tries to obtain information within the zone of belligerent operations for the use of his side in the war. '" Regularly uniformed soldiers who without any attempt at a disguise enter enemy territory are not considered spies. Spying is not prohibited under inter6

H

fiJ

S w Haw Pia v. China Banking Corporation, 80 Phil. 604. -Art- 29. Hague Regulations.

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national law; it iB a legitimate strategy; however, spies may be executed when captured, but only after a court-martial. 0

NOTE: George Segal, editor of The Pacific Review, enthused that — "Spying, glibly known as the second oldest profession, is as old as politics. From Joshua's biblical spies to KGB defectors, the rationale for spying remains the same. It is in the interest of adversaries to know as much about their opponent and his thinking as possible. In the edgy atmosphere of the Cold War, spy scandals were the equivalent of gunfire. In the confused mood of the new detente, spies are hastily running for new cover and revealing long-cherished secrets. "The need for, and fascination with, spies will continue as long as there is political conflict. But the methods of intelligence gathering have clearly moved away from humint (human intelligence) and towards sigint (signal intelligence) and elint (electronic intelligence). As new technologies revolutionize information-gathering, this trend is likely to continue; a pity, because somehow it is difficult to see a publisher taking an interest in the treacherous tendencies of a computer or satellite." (b) War Treason — consists of all such acts (except hostilities in arms on the part of the civilian population, spreading of seditious propaganda by aircraft, and espionage) committed within the lines of a belligerent as are harmful to him and are intended to favor the enemy. It is distinguished from real treason which can only be committed by owing allegiance, although temporarily, to the injured State. Examples: bribing soldiers in the interest of the enemy; aiding prisoners of war to escape; fouling up sources of water supply; intentional misleading of troops while acting as guide. 64

65

NOTE: Upon the other hand, war rebels are those within the region of belligerent occupation who rise in arms

"'Set' Art. 30 Hague Regulations. "'Opptnheim. International Law. pp. 331-332

"'•S.w U.S. War Deuartnunt Basic Field Manual: Rules of Land Warfare.

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against the belligerent occupants or against the authorities established by the same. 88

NON-HOSTILE RELATIONS OR INTERCOURSE BETWEEN BELLIGERENTS * Non-hostile relations or intercourse ("commercial belli") between belligerents may be conducted by the following means, inter alia: ^. (1) passport (or pass) — a general permission by the competent authorities which enables a person to travel within belligerent territory; 8 1

(2) safeconduct (or permit) — a special passport indicating the conditions of travel, e g., time, region, with a guarantee of noninjury to the persons or goods concerned; 68

(3) safeguard — a kind of protection afforded to travelling persons or to property (such as buildings) by the commander of a place, within the region of his command. NOTE: Usually, an escort or convoy of soldiers provide the needed protection. 69

(4)

permits or licenses to trade;

(5) cartels — agreements between belligerents for the purpose of regulating intercourse not otherwise permitted in time of war; usually, the subject matter deals with the exchange or repatriation of prisoners of war. {Note: Carte) ships are those which transport prisoners of war who are to be exchanged. ) TU

(6) white flags of truce and the parlementaire — the flag of truce, white in color, indicates a desire to communicate with the enemy; the agent is called "parlementaire," and is entrusted with the duty of negotiating. If the "receiving" belligerent does not desire to receive the parlementaire, a warning, with an opportunity to withdraw, must be given."

"Ihid, 349. Wilson. Handbook of International Law, p. 411. ""See Fenwick, International Law, p. 492. ""See Wilson, Handbook of International Law, p. 412: Fenwick, loc. cit. "See Wilson, op. cit., p. 413. .See Rules of Land Warfare. U.S. War Department. Sec. 220. 6T

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SUSPENSION OF HOSTTUT1ES Hostilities between the belligerents may be suspended in the following instances: (1) suspension of arms — agreement between local commanders for a brief suspension of hostilities for Buch purposes as the removal of the wounded or the burial of the dead. 72

(2) armistice — a suspension of military operations in all regions; a local armistice applies only to certain fractions of the army and is confined to a definite zone of operations. ' While an armistice binds the belligerents from the time of the agreed commencement, the officers themselves are held responsible only from the time they receive official information of the existence of the armistice. An armistice effects nothing but a cessation of hostilities; the war continues to exist.' An armistice involves an act of government, and is generally political in nature; a suspension of arms is chiefly negotiated between local commanders and is of a military character. 7 1

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78

(3) ceasefire — this refers to a stoppage of all military firing and advances, usually ordered by an international organization, so that peaceful means may be availed of in the settlement of the dispute. Examples: the ceasefire ordered by the Security Council in the 1948 dispute between the Jews and the Arabs in Palestine; also, the ceasefire ordered in mid-year, 1967 by the Security Council to end the Middle East conflict between Israel and the Arab States. 77

7

(4) truce — a conditional ceasefire for political purposes. " Example: the 1948 Palestine Truce." (5) capitulation — an agreement whereby a body of troops or a fortress or a town is surrendered, done in accordance with military rules and honor." 0

"'Fenwick, International Law, p. 493. A r l . 37, Hague Regulations. Art. 254, U.S. War Department. Basic Field Manual. •The Protector. 12 Wall. 700: Hijo v. U.S. 194 U.S. 315. 'Fenwick. International Law, pp. 492-493. 'See P. Muhn. Problems of Truce Supervision. Int. Cone. No. 478. pp. 51 et. seq. "Sec Lawrence. Principles of International Law, p. 424. "*Si-e Stone, Legal Controls of International Conflict, p. 654. ""Art 35. Hague Regulations; See Fenwick. no. cit.. 492. ;l

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(6) unconditional surrender — one effected with no conditions attached. THE END OF THE WAR War may end thru any of the following modalities: (1) cessation of hostilities without any formal treaty (e.g., the French-Spanish War of 1720; the French-Mexican War of 1867.)™ Because there is no treaty, the doctrine orUTI POSSIDETIS is generally followed, the doctrine by which the property and territory in the actual possession of each of the belligerents at the conclusion of the war vest in the State having possession at the time of cessation of hostilities; 8 !

(2) By a formal treaty of peace (e g., The Treaty of Versailles ending World War I); (3) By the complete submission and subjugation of one of the belligerents (e g., conquest of Hanover, Hesse, Nassau by Prussia in 1866) followed almost immediately by annexation; 8 3

(4) By unilateral declaration or proclamation (particularly, if the victory has been overwhelming). TERMINATION OF THE LAST WAR WITH PARTICULAR REFERENCE TO THE PHILIPPINES When did the last World War end, insofar as the Philippines is concerned? Apparently conflicting dates have been designated by the Philippine Supreme Court on the matter. The following is a resume of the dates that have been given: (1) Sept. 2, 1945 — the factual termination of the last war; formal signing of the treaty of surrender of the Japanese Armed Forces to the Allied Forces at Tokyo Bay; M

(2) December 31, 1946 — termination of the Greater East Asian War in the Philippines, because on this date, there was an official proclamation of peace;** Bl

Wilson and Tucker, International Law, pp. 300-303. ""Hall, Treatise on International Law. p. 672. S e e Wilson and Tucker, loc. cit. "Arellano v. Domingo, L-8679, July 26, 1957. "Navarro v. Barredo, L-8660. May 21. 1956; Kare v. Imperial. L-7906, Ocl. 22, 1957. m

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(3) Sept. 8, 1951 — According to the Court, when the phrase "termination of war" is used in private contracts — this refers to the formal proclamation of peace — and this formal or official declaration of peace occurred when the San Francisco Peace Treaty was signed on Sept. 6, 1951. To ordinary citizens "uninitiated in technicalities and fine points of international law, war terminates in the common and practical sense, i.e., — upon the signing of the Treaty of Peace. In the Mereado case, the pertinent provision in the contract read "after the complete termination of the present Greater East Asian War" and "after the end of the war in the Philippines"; M

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(4) April 28, 1952 — "ratification or the Treaty of Peace concluding the Greater EasfrAsia War." The Court said: T h e word 'ratification' being used in a general sense without reference to any specific country, and the Greater East Asia War having been construed to mean the general war between Japan and the Allied Powers, not the hostilities between the Philippines and Japan in particular, the ratification should be only by a majority of the signatory powers. This should, therefore, refer. . . to the deposit of the instruments of ratification on April 28, 1952 by ,the majority (in fact, A L L ) of those concerned with the Greater East Asia.""* SOME EFFECTS OF THE TERMINATION OF WAR BY MEANS OF A TREATY INSOFAR AS INTERNATIONAL LAW IS CONCERNED Insofar as international law is concerned, some of the effects of the termination of war by means of a treaty are the following: (1) the restoration of friendly relations between the former belligerents; (2)

the renewal of diplomatic intercourse;

(3) the revival of such treaties as had been merely suspended during the existence of the war; (4) (5) lations;

the removal of wartime disabilities on enemy aliens; the grant of damages, in accordance with treaty stipu-

*Fabie v. Court of Appeals, March 29, 1955. "Mereado u. Punealan, L-8366. April 27, 1956. **Kare v. Imperial, L-7906, Oct. 22, 1967.

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(6) the termination of the wartime rights and obligations of the neutral States; (7) the restoration to the status quo ante bellum (the state of things before the war) or properties and possessions (except lawful prize and booty) (NOTE: ir there is NO treaty, the general rule is the uti possidetis instead of status quo ante bellum); (6) the grant of amnesty (immunity from prosecution for violations of warfare rules, and/or political offenses). (NOTE: Under the 1949 Geneva Convention, the release or repatriation of war prisoners should ordinarily be made after cessation of hostilities without waiting for the formal treaty of peace). 88

NEUTRALITY rrir

Neutrality is the non,-"" ipation directly or indirectly, in a "hot" war between contending belligerents. Traditionally, there has been a distinction between the so-called neutral states, and neutralized State. Neutral States are so because of their inaction or indifferences, and their rights and obligations are governed by" the rules of international law; upon the other hand, neutralized States are the result of treaties which guarantee their neutrality, the treaties themselves governing their consequent rights and obligations. Moreover, while neutral States and neutrality exist only during war, neutralized States and neutralization continue to exist as such both in time of peace and in time of war. L

90

In a "cold" war (war of ideas and ideals), a State that sides with neither the Democracies nor the Communists StateB is referred to SB a "neutralist " State (non-aligned). NOTE: It is argued that there no longer exists today a "cold war" but that the world is in a post-Cold War era.

" S e e Fenwick. op. cit., 581; Wilson, op. cit., p. 429.: United States v. Dunning ton, 146 U.S. 338. " S e e Wilson and Tucker, International Law, pp. 307-308.

I N T E R N A T I O N A L LAW A N D WORLD POLITICS

KINDS OF NEUTRALITY There are various forms of neutrality: (1) permanent or perpetual neutrality — (in the case of a neutralized State, e.g., Switzerland); ( N O T E : Switzerland became a neutralized State in the treaty or declaration of March 20, 1815 signed by Great Britain, France, Austria, Prussia, Russia, Portugal, Spain and Sweden. The declaration was acceded to by Switzerland on May 27,1815). 41

(2) perfect or absolute neutrality (in the case of a neutral State that does not participate in the conflict directly or indirectly); (3) armed neutrality (where military measures are taken by a neutral State buTuTily for defensive purposes against possible violations of neutrality by the belligerents); (4) qualified neutrality (where the ordinarily neutral State has to give*soTh~e~Torm of assistance to one of the belligerents as a result of a treaty P R E V I O U S L Y entered into with one of them." 2

NEUTRALITY UNDER THE UN CHARTER In view of the enforcement actions provided for in the UN Charter, it is believed that generally, insofar as UN members are concerned, absolute neutrality cannot possibly exist. Members not involved in a particular war are permitted by the Charter to assist the belligerent who is the victim of an "armed attack," but not the guilty belligerent. 93

Theoretically, neutralized States cannot become members of the UN because of collective "enforcement measures" except if the neutrality is renounced or the UN Charter is amended, U N L E S S we accept the theory that the UN Charter requiring "participation" implicitly abrogates the traditional doctrine of international law which demands non-participation on the part of neutrals. Be that as it may, the rules of neutrality insist on a norm of conduct to be followed by neutrals:

"Kelsen, Principles of International Law. p. 85. S e e Oppenheim-Lauterpacht, International Law. Vol. I I . p. 663. "Kelsen. op. cit.. p. 87. M

WAR, NEUTRALITY, AND POSTLIMINIUM

(1)

619

Neutrals ought to abstain from assisting the belligerents

by: (a)

the sending of troops;



the official grant of loans;

(c)

the carriage of contraband;

(d) the engaging in unneutral service. (2) Neutrals must prevent: (a) their territory from becoming the base of operations on the part of the belligerents (thus, belligerent vessels within the ports of the neutral State ought to leave within twentyfour hours after the commencement of the war — the 24-hour rule; if the vessels are those of both belligerents, those of one must have at least 24 hours prior to the departure of the vessels of the other belligerent — the 24 hour interval rule). 94

(b) the setting up of wireless stations in the territory, as well as the establishment of recruitment centers therein. 95

(3) Neutrals must acquiesce: (a) to the inconveniences of an effective blockade (not a paper blockade, which is good only in theory, but which cannot actually be set up in actual maneuvers; nor a longdistance blockade the enforcement of which is impracticable). NOTE: For a blockade to be valid, it must be maintained by a force sufficient to prevent access to the coastline of the enemy; it must be duly communicated to neutral States and their vessels; it must have been declared by properly constituted authorities. 86

(b) to visitations and searches, and in some cases to the authority of prize courts (national courts of a State generally applying rules of international law in deciding the legality or illegality of the seizure of a vessel. 97

"Wilson and Tucker, International Law. p. 324; See also Art. 16, Hague Conventions X I I I , II Oppenheim, p. 706. **lbid.. pp. 663-656. " S e e Fenwick, op. cit., pp. 549-650. "See The Maria, 1799, 1 C. ob. 340.

I N T E R N A T I O N A L L A W A N D W O R L D P O L I T I CS

(c) the exercise of the right of angary (the right of a belligerent state to make use of properties of neutral states located within the territory of the former, provided there is urgent need for said properties, and provided further that adequate compensation be paid therefor). INTERNAL CONFLICT AND NON-ALIGNMENT The Persian Gulf War has ended, but the killings continue. As humanity watches massacres in Iraq, the world community ponders — When is there a duty to 'interfere? The issue of what is "internal conflict" and what merits international actions is aflame because of the massacres. This is a priority if there is to be even a start on a "new world order." For one, France has proposed an amendment to the UN Charter to include a "duty of interference" in cases of particularly outrageous abuses of human and minority rights. Avers French Foreign Minister Roland Dumas: "The law can evolve: When there are new types of crimes, why not new legal rules to address them?" In other words, a clearer sense of when and how international responsibility should be engaged is needed. The UN has come to function as a legitimating body for intervention, but its fundamental doctrine of national sovereignty is no longer inadequate. For this precise purpose, participating States must recognize that human rights are an appropriate international concern; how countries treat their own people can no longer be shrugged off as nobody else's business, at least among signatories. While the UN could do better, it feels blocked by the rule of non-interference in internal affairs; it is high time, thus, for the world body to seriously review this principle. The reason is manifest: Why does the UN feel obliged to send food and medical supplies to refugees from war-torn areas on humanitarian grounds but does not venture to assist in resolving the war itself? Accordingly, there ar two (2) grounds for redefining the line when internal affairs are superseded by responsibility for maintaining international peace and security: (1) 'Realpolitik' the conflicts do spill over and upset the region; and (2) Moral, ethical, and in today's world, politicalhuman rights cannot be bounded by frontiers, and countries that flagrantly abuse their citizens are a menace to all. Corollary to the rule of non-interference is a fast decimating international group known a the non-aligned movement. In 1961

WAR. NEUTRALITY, AND POSTLIMINIUM

621

at Belgrade, a number of non-aligned countries came together to form a Non-aligned Movement to make clear their dissatisfaction at the paralysis produced by superpower deadlock and to ensure that alternative perspectives on international issues were pushed to the fore. It was formed by leaders of newly-independent countries (such as Nehru of India and Nkrumah of Ghana) or those asserting their independence from one of the blocs (such as Tito of Yugoslavia) to provide an alternative to a polarized international system. In the late 1970B it began to be asked exactly how non-aligned the movement actually was, as Fidel Castro's Cuba moved into a leadership position and began to argue that the then Soviet Union was really quite sympathetic to the views of the non-aligned and supportive of their interests. This argument was opposed vigorously at the time and did not in practice survive the Soviet invasion of Afghanistan. The lasting effect of the movement has been to emphasize the unwillingneBB of the majority of countries to tie themselves too closely to one particular bloc. As a basis for a positive diplomacy, it has now been superseded by smaller groupings which can address local problems of real substance. Examples of these major regional groupings a r e : the Arab League, the Organization of American StateB, the Organization of African Unity, the Gulf Cooperation Council, and the Association of South East Asian Nations (ASEAN). THE CARRIAGE OF CONTRABAND Contraband is anything that enables a belligerent to carry on the struggle w i t h greater vigor: " 9

(a) it is absolute contraband — when it consists of articles of war (arms, munitions) destined for belligerent territory; (b) it is conditional or relative contraband — when it consists of materials useful both in war and in peace (e.g., food and clothing) A N D is destined for the military authorities of the belligerent territory. (NOTE: If the food or clothing is destined for the civilians of belligerent territory; it is NOT regarded as contraband. Of course. 99

w

M

l l Oppenheim 799. 3 e e Fenwick, International Law. p. 663; Oppenheim, op. cit.. 803.

INTERNATIONAL LAW A N D WORLD POLITICS

622

under the doctrine of usus anticipitis, articles of ambiguous use may sometimes be regarded as contraband if used Tor war purposes.) 100

'Neutrals are not supposed to carry contraband; if contraband is found, the same may be seized, without payment; even innocent goods may be seized in some cases as a result of the doctrine of infection. To avoid detection, neutral vessels sometimes pretend to be destined merely for neutral, not belligerent, ports (so that the cargo may not be deemed contraband); however, if it be proved that the ultimate destination be really belligerent territory, the entire voyage is considered as one continuous one, and the contraband may be seized even if at the exact moment of capture the goods were apparently destined for a neutral port (doctrine of continuous voyage). Where the vessel itself has a bona fide neutral destination; but its cargo, after being deposited in a neutral port, is to be Lranshipped to a smaller and swifter vessel to be used ae a blockade-runner, the cargo may, likewise, be seized as contraband. The same rule applies when after shipment thru the sea to a neutral port, the goods are to be transported by land to a belligerent destination. This is referred to as the doctrine of continuous transport or the doctrine of ultimate destination. 101

UNNEUTRAL SERVICE While the carriage of war goods and materials is referred to as the carriage of contraband, the "Carriage of belligerent persons and of enemy dispatches is denominated as "unneutral service." Unneutral service is necessarily hostile in character, gives more assistance to the enemy than contraband carriage, and places a neutral in the DIRECT service of a belligerent. Contraband carriage is not necessarily hostile, and merely serves the enemy indirectly. 102

POSTLIMINIUM OR POSTLIMINI Postliminium or postlimini is the reversion* to the old laws and sovereignty of territory that has been under belligerent occu-

10

°See Wilson and Tucker, op. cit., p. 345. ""See Fenwick, op. cit., p. 551. ""See Wilson and Tucker, op. cit.. p. 346; II Oppenheim, op. cot.. 832.

WAR, NEUTRALITY, AND POSTLIMINIUM

pation. It differs from status quo ante bellum in that while the former respects certain changes that had occurred during the belligerent occupation, the latter doctrine usually presupposes a COMPETE REVERSION to the original state of things. Upon the other hand, postlimini must not be confused with uti possidetis which as has already been intimated allows retention of property and territory in a belligerent's actual possession at the time of cessation of hostilities. Postlimini recognizes such vested private rights as had been legitimately created by the temporary occupant. Postliminium is principally a matter of municipal law, not international law. 103

104

SOME DOCTRINES CONCERNING POSTLIMINI AS APPLIED BY OUR SUPREME COURT Our Supreme Court has enunciated certain principles directly connected with the doctrine of postlimini; (1) Judicial acts and proceedings during the Japanese occupation which did NOT partake of a political question remain good and valid, even after the liberation of the Philippines. After all, the Courts of the Philippine Commonwealth did not necessarily become courts of Japan. Thus, their acts are entitled to recognition after the restoration of the de jure government. A contrary rule would paralyze the whole social life of a community in the event of an invasion. " Note that the courts had been legally constituted. (Ognir v. Director of Prisons, 80 Phil. 401). 1

5

Thus — (a) final decrees of absolute divorce granted during the Japanese occupation even on grounds newly provided for under the Japanese Occupation's Executive Order on the subject are considered still valid and subsisting. 10 6

NOTE: If, however, the divorce suits were still pending in our courts at the time General Douglas MacArthur issued a proclamation of peace, the suits would have to be dismissed — on account of the lack of transitional provisions in

""See Fenwick, International Iaxw, p. 582. ,ul

Ibid.

'"'•Co Kim Cham v. Eusebio Vatdez Tan Keh, L-5, Sept. 17, 1945. '••Havmundu v. Penan. L-6705, Dec. 23, 1954.

INTERNATIONAL L A W A N D W O R L D POLITICS

MacArthur's proclamation — E X C E P T those where the grounds Tor the divorce were those recognized under Act No. 2710 — the OLD Absolute Divorce Law — which gave as grounds adultery on the part of the wife or concubinage on the part of the husband. 107

(b) Taxes paid during a hostile occupation or penalties imposed for ordinary crimes imposed by the invader are properly recognized. 108

(c) fective.

An adultery proceeding likewise continues to be ef-

109

(d) Payment of debts (pre-war and Japanese occupation) was valid because the Japanese notes were legal tender. 110

(e) Bank deposits during the Japanese occupation were not valid, but withdrawals were valid and deductible, except insofar as said withdrawals could be deducted from prior deposits of Japanese money. (Hilado v. De la Costa, 46 O.G. 5472, says that the technical reason is that a bank deposit is NOT a payment of any obligation, whereas a bank withdrawal is a payment of the loan contracted by the bank). 111

(2) Judicial acts and proceedings of a political complexion rendered during the Occupation are, however, invalidated or rendered null and void. Thus, a naturalization certificate granted during the Occupation may now be properly cancelled. ' 111

1 3

NOTE: A criminal proceeding in a court of justice is said to be of a political complexion when the offense charge is a new act not defined or penalized by the latter as a crime against the legitimate government, but taken out of the territorial law and penalized as a new offense against the belligerent occupant, incident to a State of war and necessary for the control of the occupied territory and the protection of the army of the occupier. They are acts that tend directly or indirectly to aid or favor the enemy, and

""/fcirf., See also Pena de Luz v. CFI, 43 O.G. p. 4102. '""See Wilson and Tucker, International Law, p. 290. ""fferrero and Criaostomo v. Diaz. L-28. Nov. 27. 1945. ""Orden de P.P. Benedictios i: Phil. Trust Co., 47 O f . . 2894 "'Exec. Order No. 49. The Lowest Minimum Balance or Credit Lint '"Co Kirr: Chan v. Vatdez Tan Keh. L-5. Sepl. 17. 1945. "'SVc Palanca i. Rep.. 45 O.G Supp 204.

WAR, NEUTRALITY, A N D POSTLIMINIUM

625

are directed against the welfare, safety, and security of the belligerent occupant. Examples are the crimes of treason, rebellion, etc. against the Commonwealth or the U.S. Government under the Revised Penal Code, which were made crimes against the belligerent occupant. They are punished for public rather than private reasons." 4

QUERY On the reestablishment of the Commonwealth in 1945: (a) Could a Court of First Instance (now Regional Trial Court) continue proceedings in a civil case started before courts organized during the period of the Japanese Military Occupation? (b) Was a sentence promulgated by the Occupation Court of Special and Exclusive Criminal Jurisdiction considered valid? (c) Was a decision of the Occupation Court of Appeals rendered in 1944 affirming a lower court pre-war decision binding and effective? ANSWERS: (a) Ordinarily, a Court of First Instance (now Regional Trial Court) could continue proceeding in a civil case started before courts organized during the period of the Japanese Military Occupation. This is because the government during the occupation was a de facto government, and the judicial acts of the invader, done under the sanction of municipal law, should remain good. 115

There are, however, at least two (2) exceptions to the doctrine enunciated hereinabove: (1) proceedings of a political complexion could certainly not continue. ,lh

(2) divorce proceedings still pending at the time the Philippines was liberated could not be continued

'".SIT Peratla v. Director of Prisons, L-49, Nov. 12. 1945.

"'<",. Kim Chan v. Valdci Tan Keh, supra, •th.d.

INTERNATIONAL LAW A N D WORLD POLITICS

unless based on grounds recognized under the old Absolute Divorce L a w . " 7

(b) A sentence promulgated by the Occupation Court of Special and Exclusive Criminal Jurisdiction was considered valid only if it did not partake of a political complexion (for a fuller discussion, see supra)."* Because of the non-political character of certain cases, judgments thereon are to be regarded as valid. This is so even if a summary procedure of prosecution had been adopted. (Peralta v. Director of Prisons, 75 Phil. 285). (c) A non-political decision of the Occupation Court of Appeals rendered in 1944 affirming a lower court pre-war decision is binding and effective, the government at that time being a de facto one. " 1

BAR X was the owner of a motor vessel which the Japanese Army confiscated during the occupation of the Philippines. After liberation, the U.S. Armed Forces found that said vessel, and sold it as enemy property to Y. An action is now filed by X against Y for the recovery of the vessel, plus damages. Will the action prosper? Give reasons for your answer. ANSWER: The action will prosper. While the Japanese Army had the right to make uBe of the vessel, still it was under obligation to R E S T O R E it at the conclusion of peace and to pay indemnities therefor. (Art. 53, "Regulations Respecting the Laws, and Customs of War on Land," Appended to the Hague Convention or 1907). The title to the vessel did N O T , therefore, pass to the Japanese Army, but remained with X. The vessel cannot consequently be considered as enemy property, and was not.such when it was found by the U.S. Armed Forces and sold to Y. The sale cannot, thus, be considered valid as against X. Vi0

— oOo —

ul

Raymundo v. Pehas, L-6705, Dec. 23, 195-1. ""Peralta v. Director of Prisons, L-49, Nov. 12. 1945; People of the Philippines v. Benedicto Jose, L-22, Dec. 20. 1945. C o Kim Chan v. Valdcz Tan Keh. L-5, Sept. 15, 1945. Placido Noveda v. Marcos Escobar, L-2939. Aug. 29. 1950. ,l9 ,3U

Chapter 14 THE UNITED NATIONS ORGANIZATION

INTRODUCTION "In the spring of 1945, World War II was plainly drawing to a close. Millions of people had died in that war; millions more were homeless, hungry, and cold. The people of the whole world longed for a lasting peace. The victims of war devastation, and hundreds of millions who suffered grinding poverty even in peacetime, longed also for an escape from poverty, hunger, and disease. All over the world, too, wherever people lived under foreign domination or homegrown oppression, there was a growing demand for freedom and justice. "These deep desires for peace and for better conditions of life were joined in the great conference at San Francisco in the spring of 1945, when the nations combined their efforts in the organization of the United Nations."' THE TIME AND THE P L A C E The Charter of the United Nations was signed on June 26, 1945 at San Francisco, California. It took effect October 24, 1945 upon ratification by the Great Powers and a majority of the other signatory States. THE BACKGROUND At the close of World War I, the League of Nations was formed (1919) to achieve international peace and encourage international

'From the Foreword to the "United Nations", by David Cushmnn Coyle.

627

I N T E R N A T I O N A L L A W A N D W O R L D POLITICS

cooperation. Unfortunately, the United States did not become a member despite the fact that it was President Woodrow Wilson of the United States who had proposed in his "Fourteen Points" its establishment. The League eventually collapsed, its official dissolution being on April 19. 194fi— On August 14, 1941, President Franklin Delano Roosevelt and Prime Minister Winston Churchill had issued a joint Declaration — the Atlantic Charter— (after a meeting "somewhere on the Atlantic"). Among the principles declared were: the right of self-determination, freedom of the seas, abandonment of the use of force, full economic collaboration, and "the establishment of a wider and permanent system of general security." The last principle evidently had an international organization in mind. In November, 1943, the Moscow Declaration (of the United States, Great Britain, Russia, and China) specifically recommended an international assembly. The plan was implemented by these four States in the Dumbarton Oaks (State of Washington) Proposal; was followed up in the Yalta .Agxeamgnt (February 1945) in which the U.S., Russia, and England decided to call a conference for the precise purpose of drawing up the needed charter of the organization. This Charter was finally signed as already stated, on June 26,1945. In terms of the Charter, the official languages used Chinese, French, Russian, and Spanish.

are:

As an official language of the General Assembly, the Security Council and the Economic and Social Council, Arabic has been added as an official language. NOTE: Aptly described by Oxford University Foreign Service Programme Director R.G. Feltham as a "striking diplomatic conference," the United Nations is a worldwide association of States which, upon signing of the Charter of the United Nations, subscribe to its purposes and agree to act in accordance with its principles. PURPOSES OF THE UNITED NATJONS f Briefly there are four (4) salient purposes: (1)

the attainment of international peace and security:

(2)

the development of friendly relations;

T H E UNITED NATIONS ORGANIZATION

(3)

629

the^achieviiig of intei national cooperation; and

(4) the use of the UN as the center for the harmonizing of actions to attain these three aims! In the words of the UN Charter itself: (1) "to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of thrp«t«_tn the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment, or settlement of international disputes or situation? which might lead to a breach of the peace; (2) "to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; (3) "to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and (4) "to be a center for harmonizing the actions of nations in the attainment of these common ends." 2

PflWGIPI *BJ O r T H E AillfJED NATIONS The organization is supposed to act in accordance with the following principles: j\)

sovereign equality;

(2)

good faith;

L8)

peaceful settlement o f disputes;

14)

avoidance of threat or use of force;

J15)

members to assist U N ; UN to ensure that non-members will act property; and

'Art

1. UN Charter.

630

I N T E R N A T I O N A L L A W A N D WORLD POLITICS

(7) non-intervention. The UN Charter refers to these principles in the following terms: (1) "The Organization iB based on the principle of the sovereign equality of all its Members. (2) "All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. (3) "All Members shall settle their international disputes by peaceful means in such a manner thai international peace and security, and justice, are not endangered. (4) "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations. (5) "All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action. (6) T h e Organization shall ensure that States which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. (7) "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter V I I . " 5

UN MEMBER-STATES AND PAYMENT OF DUES The UN Charter mandates that all member-States of the

'Arl. 2. UN Charter.

THE UNITED NATIONS ORGANIZATION

631

organization must pay their dues, considering in the words of then UN Sec-Gen. Javier Perez de Cuellar, that — "[t]he time seems to have come to examine afresh the conditions in which increasingly varied and complex mandates are entrusted to the Secretariat." Cuellar's thesis follows: "In the fu-Bt place, it is hardly comprehensible that Governments impose far-reaching and costly responsibilities on the Organization, as they judge they must, but are themselves unwilling to fulfill corresponding financial obligations. Voluntary contributions, however welcome and generous they may be, cannot reliably fill the gap. This places the Secretary-General in an often intolerable situation. Under the Charter, it is a legal duty of Member-States to pay their assessed contributions. By improved mechanisms, payments must be made on time and in full if the Secretariat is to retain the capability of responding, on behalf of the membership as a whole, to the pressing tasks required of it. At the time of writing this report, the level of outstanding contributions to the regular budget was $809,445,015, and only 49 Member-States had fully paid their annual contributions. Peacekeeping assessments unpaid by Governments amounted to $488, 994, 618. It can thus be seen that the financial crisis of the Organization is still not over. I trust that, along with enlarging the Organization's role by their own decisions, Governments will revise their approach to funding the vital and far-reaching tasks they request the Secretariat to perform. "Furthermore, constrained as the Secretariat is by zerogrowth budgetB, it would at first sight appear necessary that Governments prioritize the mandates conferred upon the organizations. Since, however, this is difficult in practice, some flexibility has to be left within its budgets for redeployment, in light of demands of changing situations, of existing resources on a discretionary basis. At present, there is virtually no such flexibility. Difficulties are aggravated by divergent decisions coming from the different legislative bodies, as [has already] happened. "All this becomes stranger if it is borne in mind that the proportion of national budgets that Governments devote to

I N T E R N A T I O N A L L A W A N D W O R L D POLITICS

the United Nations is minuscule compared with their military outlays; indeed, by any reckoning, resources devoted to the Organization constitute an extremely economical investment Tor Governments. "There is an urgency to replenish, increase and maintain the Working Capital Fund and the Special Account, both of which are gravely depleted. Member-States may also wish to consider the establishment of a strategic reserve fund specifically designed to meet the costs arising from unanticipated pressures upon scarce resources. Had such a fund been available, the Organization might not have become a mendicant as it did in order to secure, at very short notice, sizeable resources so as to undertake urgent and unexpected tasks. Alternatively, p e r h a p 6 the time has come again to consider permitting the Organization to borrow, since such a facility could help to provide the necessary flexibility in unanticipated contingencies." (Report of the Secretary-General on the Work of the UN, October, 1991).

MACEDONIA IS NEWEST UN MEMBER On April 8, 1993, the UN General Assembly welcomed Macedonia into the community of nations. But its admission as the UN's 184th member was qualified in ways that no other country has had to accept. This republic of two million citizens may not fly its flag outside UN headquarters, and had to forego the customary flag-raising ceremony — even if its name is temporary. For at least 15 months, Greece had blocked Macedonia's admission to the U N , claiming the use of the name "Macedonia" implies territorial designs on the northern Greek province of the same name. In addition, Greece had refused to let Macedonia be admitted while its flag contained the 16-pointed Star of Virginia, symbol of the Macedonia dynasty of the 4th century B.C. warriorking Alexander the Great. Macedonia was only admitted after the two countries agreed to temporarily call the new State "The Former Yugoslav Republic of Macedonia." Macedonia was placed in the General Assembly's alphabetical seating plan between Thailand and Togo — for "The Former. . ." Macedonia seceded from Yugoslav in 1991.

THE UNITED N A T I O N S ORGANIZATION

ORGANS OF THE UN The principal organs of the UN are the following: (1)

General Assembly;

(2)

Security Council;

(3)

Economic and Social Council;

(4)

Trusteeship Council;

(5)

International Court of Justice; and

(6)

Secretariat.*-'

The Specialized Agencies affiliated with the U N are the following: (1)

International Labor Organization (ILO)

(2) United Nations Educational, Scientific and Cultural Organization (UNESCO) (3) International Bank for Reconstruction and Development (World Bank) (4)

International Monetary Fund ( I M F or Fund)

(5)

Universal Postal Union ( U P U )

(6)

World Meteorological Organization ( W M O )

(7) (FAO)

Food and Agriculture Organization of the United Nations

(8)

International Civil Aviation Organization (ICAO)

(9)

International Finance Corporation (IFC)

(10) World Health Organization ( W H O ) (11) International Telecommunications Union (ITU) (12) International Atomic Energy Agency (IAEA) NOTE. 'Specialized Agencies' "Specialized Agencies" are international organizations having functions in particular fields. The term appears in Articles 57 and 63 of the UN Charter. (International Catholic Migration Com'Art. 7. No. 1. UN Charter.

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I N T E R N A T I O N A L L A W A N D W O R L D POLITICS

mission v. Calleja, G.R. No. 85750, Sept. 28, 1990, J. MelencioHerrera, ponente). The Charter, while it invests the UN with the general task of promoting progress and international cooperation in economic, social, health, cultural, educational and related matters, contemplates that these tasks will be mainly fulfilled not by the organs of the UN itself but by autonomous international organizations established by inter-governmental agreements outside the United Nations. There are now many such international agencies having functions in many different fields, e.g., in posts, telecommunications, railways, canals, rivers, sea transport, civil aviation, metereology, atomic energy, finance, trade, education, and culture, health, and refugees. Some are virtually worldwide in their membership; some are regional or otherwise limited in their membership. The Charter provides that those agencies which have "wide international responsibilities" are to be brought into relationship with the UN by agreements entered into between them and the Economic and Social Council, are then to be known as "specialized agencies." In the International Catholic Migration Commission v. Calleja case (supra), the Philippine the Supreme Court, speaking thru Justice Ameurfina Melencio-Herrera, said: Article II of the Memorandum of Agreement between the Philippine Government and the International Catholic Migrating Commission provides that ICMC shall have a status "similar to that of a specialized agency." Thus, Art. I I I . Sees. 4 and 5 of the Convention on the Privileges and Immunities of Specialized Agencies adopted by the United Nations General Assembly on Nov. 21, 1947 and concurred in by the Philippine Senate thru Resolution No. 17 on May 17, 1949, provides: "Sec. 4. The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process insofar as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution." "Sec. 5. The premises of the specialized agencies shall be inviolable. The property and assets of the specialized agencies, wherever located and whomsoever held shall be immune from search, requisition, confiscation, exporpriation and any other form of interference, whether by executive, administrative, judicial or legislative action." . The Department of Foreign Affairs, thru its legal adviser, sustained ICMC's invocation of immunity when in a Memorandum,

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dated Oct. 17, 1988, it expressed the view that "the Order or the Director of the Bureau of Labor Relations dated September 21, 1988 for the conduct or certification election within ICMC violates he diplomatic immunity or the organization." The foregoing opinions constitute a categorial recognition, which determination has been held to be a political question conclusive upon the Courts in order not to embarass a political department of the Government. The grant of immunity from local jurisdiction to ICMC iB necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country to their internal workings. The exercise of jurisdiction by the Department or Labor in these instances would defeat the very purpose of immunity which is to shield the affairs of international organizations in accordance with international practice, from political pressure or control by the host country to the prejudice of member-States of the organization, and to ensure the unhampered performance of their functions. According to the Supreme Court, ICMCs immunity from local jurisdiction by no means deprives labor of its rights which are guaranteed by Art. II (Sec. 18), Art. I l l (Sec. 8) and Art. XIII (Sec. 3) of the 1987 Philippine Constitution; and implemented by Arts. 243 and 246 of the Philippine Labor Code. For one, ICMC employees are not without recourse whenever there are disputes to be settled. Sec. 31 of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations provides that "each specialized agency shall make provision for appropriate modes or settlement of disputes arising out of contracts or other disputes or private character to which the specialized agency is a party." Moreover, Baid the Court, pursuant to Article IV of the Memorandum of Agreement between ICMC and the Philippine Government, whenever there is any abuse of privilege by ICMC, the Government is free to withdraw the privileges and immunities accorded. According to the Supreme Court, the immunity granted being "from every form of legal process except insofar as in any particular case they have expressly waived their immunity," it is inaccurate to state that a certification election is beyond the scope of that immunity for the reason that it is not a suit against ICMC. A certification election cannot be viewed aa an independent or isolated process. It could trigger off a series of events in the collective bargaining procesB together with related incedents and/or concerted

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activities, which could inevitably i n v o l v e ICMC in the "legal process,'' which include any penal, civil, and administrative proceedings." Concluded the Court: T h e eventuality of court litigation is never remote and from which international organizations are precisely shielded to safeguard them from the disruption of their functions. Clauses on jurisdictional immunity are said to be standard provisions in the constitutions of international organizations. The immunity covers that organization concerned, its property, and its assets. It is equally applicable to proceedings in personam and proceedings in rem." Some Subsidiary Organs: (1)

United Nations Administration Tribunal;

(2)

International Law Commission;

(3)

Commission on Human Rights;

(4)

Commission on the Status of Women; and

(5) United Nations International Children's Emergency Fund (UNICEF) THE GENERAL ASSEMBLY Composition: The General Assembly shall consist of all the Members of the United Nations. Each Member shall have not more than five repxeaentatiyes to the General Assembly. 5

Comment: There are two kinds of members: the original members, and those subsequently admitted. The original members are the States which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by the United Nations of jAnuasy--L-1342, signed the present Charter and ratified it in accordance with Art. 110. The additional members are those admitted under Art. 4, of the Charter which says: "Membership in the United Nations is 6

s

6

A r t . 9, UN Charter. A r t . 3, UN Charter.

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open to all other peace-loving States, which accept the obligations contained in the'present C h a x t e r T and in the judgment of the Organization, are able and willing to carry out these obligations. The admission of any such State to membership in the United Nations w i l l be effected by a decision of the General Assembly upon the recommendation of the Security Council." Query: The Philippines and India are considered original Members of the U N . How is this possible considering that at the time the UN Charter was signed on June 26, 1945, the Philippines was still a Commonwealth under the United States (the Philippines became independent only on July 4, 1946) and India became a self-governing dominion within the British Commonwealth only on Aug. 15,1947? «* ANS: According to Dr. Rosalyn Higgins, author of "The Development o f International L a w Through the Political Organs o f the United Nations," (1963), the reasons for their inclusion may be summed up as follows: "India had long been a participant in world affairs. It held a portion of importance in the British Commonwealth, had an exemplary war record and had played an active role in the League (League of Nations). The part played by the Philippines in the war needs no emphasis. To have denied them membership would have been both undesirable and embarrassing." It will be noted that there had to be decisions made on whether or not territorial communities not yet regarded States — because they then fell Bhort of meeting traditional legal criteria — could become original members. It is fortunate that a decision was made in favor of both the Philippines and India. Query: May the General Assembly admit a State to the United Nations without a favorable recommendation from the Security Council? In an advisory opinion rendered by the International Court of Justice (1950 I.CJ. 4, 44 A.J.I.L. p. 562), the Court answered the query in the negative. Thus, if_the S*"*"riry rmmril has made no recommendation for admission by reason of the candidate-State failing to oT>^iTthVrequisite majority or by reason of the negative vote of a Permanent Member upon a resolution so to recommend, the General Assembly cannot admit the candidate State. Art. 4, par. 2 of the Charter reads as follows: "The admission of any such

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State to membership in the United Nations will be effected by a decision of the General Assembly, upon the recommendation of the Security Council." A "recommendation" must first be made, otherwise, a decision cannot be reached by the General Assembly. "Upon the recommendation. . ." can only mean that the recommendation ought to be the basic premise or foundation of the decision. Such recommendation must be a F A V O R A B L E one. For the Assembly to admit the State without said recommendation would be for the General Assembly to reverse the Security Council, contrary to the basic structure of the Charter making both entities principal organs of the U . N . ^Voting: (1) On ordinary questions — a simple^majority of the members present and voting is needed; (2) On important questions — decisions shall be made by a two thirds majority of the members present and voting; (3) The determination of whether the question is ordinary or important is itself an ordinary question and is decided by a simple^ majority; (4) Important questions include: (a) recommendations with respect to the maintenance of international peace and security; (b) the election of the non-permanent members of the Security Council; (c) the election of the members of the Economic and Social Council; (d) the election of members of the Trusteeship Council (in the case provided for in par. I-c; Art. 86 of the Charter — the additional members); (e) the admission of new Members to the United Nations; (f) bership;

the suspension of the rights and privileges of mem-

(g) the expulsion of members; (h) question relating to the operation of the trusteeship system; "

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(i)

budgetary questions; and

a) such other questions as may be characterized as important by the simple majority, of the members present and voting. 7

NOTE: While it is the Security Council that has primary responsibility for the maintenance of international peace and se^ curity, and the General Assembly merely makes recommendations on disputes or situations N O T pending before the Council, still there have been instances when the Council could not act, principally because of the exercise of the VETO POWER. This state of affairs led to the "Uniting for Peace Resolution" (adopted Nov. 3, 1950) allowing the General Assembly to make recommendations (even on matters pending before the Security Council), and such recommendations may even include the use of ARMED FORCE. 8

"If the Security Council because of lack of unanimity of the permanent members fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the USE OF ARMED FORCE when necessary to maintain international peace and security .(The General Assembly) recommends to the States — Members of the United Nations that each Member maintain within its national armed forces elements so trained, organized, and equipped that they could promptly be made available, in accordance with its constitutional processes, for service as a United Nations unit or units, upon recommendation by the Security Council OR the General Assembly, without prejudice to the use of such elements in exercise of the right of individual or collective self-defense recognized in Art. 51 of the Charter." The So-Called 'Mechanical Majorities' Certain quarters have referred to voting in the General Assembly as being controlled by "mechanical majorities" (majorities :

A r l 18, UN Charier. "Art*. 10 and 12. UN Charier.

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who would vote. Tor instance, against any i s s u e e s p o u s e d by the United States or by other western nations regardleBB of the merits or demerits of the question, hence the term "mechanical majorities" or "tyrannical majorities," led by the so-called Third World (consisting principally of Afro-Asian and Arab nations). The mechanical majorities controlled by the Third World countries include the Bmall Caribbean islands and India, the latter with more than a half-billion population). The majority is usually supported by China and the former Soviet countries. How the Third World nations vote on UN issues, has been explained by one African ambassador. He says that instructions from his home government are as follows: "Vote with the Afro-Asians. If there iB no agreed AfroAsian position, vote with the Arabs. If there is no agreed Arab position, vote with the Arab majority." (Time Magazine, "The U.N.: Forum or Kangaroo Court? "December 23, 1974, p. W. Examples of v o t i n g by the "mechanical majorities" include the following: (1) inviting the Palestine Liberation Organization ( P L O ) , thru its chairman, Yasser Arafat, to address within the U . N . halls the General Assembly, and thus, in a sense, virtually participate in the U . N . debate on the deBire of the Palestinians to h a v e a Palestinian State; (This desire is now a reality owing to the IsraelP L O peace pact of Sept. 1993.) (2) the expulsion of South Africa (on account of its "apartheid" or discriminatory policies against the blacks) from the 1974 General Assembly; (3) the exclusion by the United Nations Educational, Scientific, and Cultural Organization ( U N E S C O ) of Israel from certain forms of aid; (4) the passage of the "Charter of Economic Rights and Duties of States," some portions of w h i c h constitute indictments against the industrial States. (Be it noted, however, that there have been some exceptions to the mechanical tyranny, as w h e n because of a divided Third World opinion, two Communist-backed resolutions failed to pass:

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the resolution proposing the throwing out of the U . N . command in Korea; and the resolution allowing the bringing in to the General Assembly of the delegation of ousted Premier a n d Prince Norodom Sihanouk of Cambodia.] Note the Norodom Sihanouk has b e e n restored to his t h r o n e a f t e r the Constitution of Cambodia has been ratified; he is n o w k n o w n for the Becond time as King Norodom Sihanouk. In defense, ambassadors from Third World countries enthused that: " tyrannical' majorities are nothing new at the U . N . , nor is stretching the U N . Charter unprecedented. In November 1950, early in the Korean War, the US. had such a captive following that it could get Assembly sanction for UN military intervention in a "Uniting for Peace" resolution that neatly circumvented Soviet veto rights in the Security Council. Year after year until 1961, the U.S. blocked the U N . from even putting membership for mainland China on the Assembly agenda." Questions on Which Conventions and Other Legal Instruments Have Been Adopted by-the General Assembly Some of the legal questions on which conventions and other legal instruments have been adopted by the General Assembly, or are in preparation, are: the prevention and removal of disputes; the use of mercenaries; the non-use of force in international relations; the protection of persons under detention; and the peaceful settlement of disputes between States. In 1980, the Assembly established an ad hoc committee to draft an international convention against the recruitment, use, financing and training of mercenaries. After eight sessions, the committee reached agreement on a number of provisions. The Assembly's Special Committee on Enhancing the Effectiveness of the Principle of Non-Use of Force in International Relations, established in 1977, completed its work in 1987 on a draft Declaration. At its regular 1987 session, the General Assembly adopted the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations. Replacing an Ad Hoc Committee on the Charter of the United Nations, set up in 1974, the Assembly's

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Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization has met annually since 1976 to consider suggestions and proposals regarding the Charter and the role of the Organization. At its 1986 session, the Special Committee completed the draft Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field. On December 5, 1988, the General Assembly approved the Declaration. The Assembly also adopted, on December 9, 1988, a Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. At itB 1989 session, the Special Committee concluded consideration of a proposal on the resort to a commission of good offices, mediation or conciliation. At the same session, the Committee also considered proposals concerning fact-finding by the United Nations within the context of the question of maintenance of international peace and security. As at previous sessions, the Special Committee reviewed the question of the rationalization of United Nations procedures. Other legal questions are being worked out by a working group on the NIEO (New International Economic Order) whose work is directed to issues involving developing countries, and is now preparing a model law on international procurement. Still other legal questions as of January 1,1994 include work on a model law for international credit transfer, work on guarantees and standby letters of credit, and a legal guide on countertrade. The International Civil Service Commission (ICSC) This is the body responsible for making recommendation to the General Assembly of the United Nations for the regulation and coordination of-conditions of service within the U N , the specialized agencies, and other international organizations which participate in the UN common system and accept the Commission's statute. Also, the ICSC has certain decision-making functions with respect to salaries, allowances, and job classification standards. Incidentally, Filipino lawyer Mario D. Yango, who garnered a total of 126 votes from UN member-States, won one of the two seats for the Asian region in the ICSC. This triumph is most rewarding, considering the presence of over 600 Filipinos currently serving in

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the UN Secretariat in New York. (See Connie Constantino Santos, "An RP Triumph in the UN," Philippine Panorama, April 11, 1993, p. 121.

THE

secwtrv

CUUNLIL

. Composition: Under the original provisions of the UN Charter, the Security Council had 11 members: 5 permanent ones, and 6 non-perm;miT>i mprnbfr The 5 permanent ones are: s

< 1) The United States 12)

Russia

i3»

United Kingdom of Great Britain and Northern Ireland

• 4i

France

<5>

China.

The non-permanent members under the original provision wen- to be elected by the General Assembly, due regard being specially paid, in the first instance to the contribution of Members i>f the United Nations to the maintenance of international peace and security, and to the other purposes of the Organization, and also to provide equitable geographical distribution. 9

To provide "more equitable geographical representation," an amendment to the UN Charier changes the membership of the Security Council from eleven i l l ) to fifteen (15). There are still five (5) permanent members, but the non-permanent group has been increased to 10. The ten 110) non-permanent members shall be elected according to the following pattern: 111

five from African and Asian States

(21

one from Eastern European Slates

(3)

two from Latin American Stales

(4)

two from Western Europe and other States.

This amendment and others discussed in subsequent headings, were approved by way of a resolution in the General Assembly 18th Session, Agenda item 82, Dec. 17, 1963. They were concurred in by Philippine Senate Resolution 47, May 21, 1964; signed and

"Art. 23. UN Charter.

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ratified by the Philippine President on Oct. 2, 1964. The Philippine instrument of ratification was deposited with the UN on Nov. 9, 1964. The amendments (in accordance with the UN Charter provisions) entered into force August 31,1965. By June 15, 1966 — 106 members States has already ratified the amendment.** While China was originally represented by Nationalist China (Taiwan), the U N , after many years, decided that the true representative of China should be the People's Republic of China (Red China). Taiwan was thus o u B i e d from the Security Council, on October 25, 1971. NOTE: Shirley Lai, reporting for the Associated Prp"s on Taiwan's military arm6 build-up as its rivalry with Chim. ' tgers, wrote: "After years of political isolation, Taiwan's Nationalist Chinese government is pursuing a flurry of major arms deals despite the easing of tensions in one of the last flashpoints left from the Cold War. Archrival China accuses Taiwan of promoting an arms race, but Taiwan says its purchases a r e for self-defense and pose no strategic threat to the Communists on the mainland. "This affluent island of 20 million people has been acting swiftly because of its bulging bank account from booming trade, its aging weaponry and its persistent rivalry with the mainland, even though their relations have been improving. Taiwan notched its first major deal in September, 1992, when President Bush lifted a decade-old ban to approve the s a l e of 150 F-16 fighter jets to Taiwan. The deal with general contractor General Dynamics Corp., valued at about $6 billion, was signed in November, 1992. "In mid-November, 1992, Taiwan signed contracts with French companies to buy 60 Mirage 2000-5 warplanes worth about $2.6 billion and at least 1,5000 air-to-air missiles. "Nationalist forces fled to Taiwan in 1949 after losing a long civil war with the Communists on the mainland. Since then, both have claimed to be the legitimate ruler of all China.

^See Annual Report of the Secretary-General on Work Organization, June 16, 1965-June 15, 1966, p. 153.

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"China opposes any sale of military equipment to Taiwan or any relations with Taipei that appear to give the Nationalist government official recognition. In a possible sign of thingB to come, China on Dec. 23, 1992 ordered France to close its consulate in the southern city of Canton. It was China's first formal act of retaliation after repeated warnings that France would pay a heavy price for the sale, but Chinese companies also have been stalling on planned deals with French businesses. The moves are intended as a warning to other European countries that have been considering weapons sales to Taiwan. China also vehemently protested to the United States over the F-16 deal, threatening a strong, but unspecified response. But so far, Beijing has not acted against the United States, which is China's biggest export market and a major source of high-technology and investment money. Chinese leaders also threatened to use force against Taiwan if it declared independence. "Yet the weapons purchases apparently were not prompted by new political fears on Taiwan. To the contrary, relations between Taiwan and China have improved. Since the Nationalist government eased restrictions in 1987, Taiwan's indirect trade with China via Hongkong has boomed. The two Chinas traded $5.78 billion of goods in the first nine months of 1992, a 31 percent rise from the same period in 1991, and Taiwanese investments in China now exceed $4 billion. In 1992, Taiwan repealed 43-year-old wartime provisions against China, and in July 1992 abolished an outpost on the island of Kinmen, 1 1/2 miles (2.4 kilometers) off the mainland, that had monitored Chinese movements for 34 years. "Taiwan ranks as the world's 14th biggest economy and, according to its Central Bank, holds about $83.9 billion in foreign reserves. The market is potentially a big one for weapons suppliers, who face dwindling demand worldwide because of the end of the Cold War and global recession. Weapon suppliers from the United States and Europe reportedly are competing for the sale of submarines to Taiwan. "Defense Ministry officials say Taiwan needs to buy advanced fighters jets to replace the backbone of Taiwan's air force, 30-year-old F-5Ea and 40-year old F-104 Sabre jets dubbed by some as 'widow makers.' At least 13 pilots have

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been killed Bince 1987 in crashes involving 23 jets of Taiwan's 400-plane fleet. "Taiwanese officials say the island needs a minimal air force of 400 to 500 jet fighters for self-protection. China has more than 1,000 fighters patrolling its coast across from Taiwan, which is within range of all Chinese missiles." N.B.: It comes as a surprise therefore that while the 21 million-strong qualified, highly, to say the least, for membership in the UN — possessed of the strong desire and sufficient resources to contribute to the international community — yet, it is still barred from the UN and many international conventions. These include, to name a few: The Montreal Protocol on the Substances that Deplete the Ozone Layer, the UN Framework Convention on Climate Change, and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. This runs counter to the UN principle of universality of membership, considering its being a participant in the drafting of the UN Charter, a founder of said organization, and a permanent member of the Security Council in 1945. As a consequence of the civil war in 1949 resulting in China's division into two: Taiwan and Mainland China (Beijing), the UN was confronted with the thorny problem of how to seat the two adversary political entities of China, since both possessed certain territories (i.e., Taiwan, as the Republic of China, exercises control over the Taiwan, Penghu, Kinmen, and Matsu areas), people, and political powers. While the U N adopted Resolution 2758 (XXVI) on Oct. 25, 1971 at the 26th regular session of the General Assembly — determined that China's seat in the UN should be occupied by the mainland Chinese regime — this move (of the U N ) apparently did not completely resolve the issue resulting from China's division. As already explained, both the Taiwanese government and Mainland Chinese authorities have been exercising jurisdiction over separate territories of China since 1949, a situation unique in the history of international politics. It must be borne in mind that conventional international law does not provide for any such scenario, and contemporary international law lacks the appropriate rules for regulating affairs concerning the present divided condition of China. Hence even ettperls in international law have virtually NO L E G A L PRECEDENT by which to deal with the issue.

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Upon the other hand, Beijing (China) haB flexed its muscle even while the U.S. frowned on the former's move of detonating its first nuclear blast in 1993. Rejecting the pleaB of more than 20 nations, including the United States, China on Oct. 4, 1993, conducted a small underground nuclear test at the Lop Nortest site in northwest China. The blast, nevertheless, does increase the chances of renewed detonations by France and Russia and has caused the U.S. to set in motion its own process for possibly unleashing new tests in the early part of 1994. One factor that could compel France to test is that, unlike the U.S., France does not have the capacity to simulate nuclear weapons test with computers. In Russia, as in all the nuclear powers, there are strong constituencies in favor of continued testing for safety reason and for continued weapon development. Pres. Yeltsin depended heavily on the military to emerge victorious in the early October 1993 showdown against hardline opponents in Parliament and it is yet unclear if he might be forced to resume testing as a debt to his military supporters. (Carol Giacomo, "Will China Test Open Door to Other Nuke Blasts?," Phil. Star. Oct. 10, 1993, p. 12). Despite some fears China may have unleashed the nuclear genie with its test, the testing moratorium is not that fragile that one test would break it apart. At any rate, all the leaders of the major nuclear powers have committed themselves to negotiating a comprehensive test ban by 1996, a commitment arms experts say is unique and bodes well for progress on containing nuclear weapons expansion. {Ibid.). Parenthetically, an alarming scenario is the reported existence of secret doomsday machines by a former superpower (Russia) and the only superpower today (the United States). According to American military expert, Bruce Blair, of the Brooking Institution in Washington, in an editorial he wrote for The New York Times (Oct. 8, 1993), to wit: "Russia has a computerized system that can automatically fire its nuclear arsenal in wartime if military commanders are dead or unable to direct the battle. "[In fact,) the doomsday machine still exists, [with thel Russians first teBtJing] the 'dead hand' in 1984. The Russians' lavish resources on its modernization to keep it on combat alert at all times. The risk of its launching weapons by accident IB impossible to know, but clearly it increases in a nu-

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clear crisis. If such a system exists — and U.S. intelligence analysts believe it is unlikely but possible — it would mark the first time in the nuclear era that a machine has been readied to press the button. (Thus,] the Russian system allows the general military staff to activate a special radio station that enables the systems to function autonomously in firing nuclear missiles under conditions of enemy nuclear attack." Blair, who based his information on scores of interviews he conducted with Russian and U.S. nuclear weapons experts, said the United States has its own version of the doomsday machine with less technical gadgetry and a wider distribution of launching authority. Meanwhile, owing to their status today as super-economic powers, Japan and Germany are now claiming seats as permanent members of the Security Council. UN Secretary-General Boutros Boutros Ghali, in his recent visit to Tokyo told Japan Prime Minister Miyazawa Kiichi that if Japan went along (i.e., for Japanese troops to continue wearing the UN agency's blue beret and patrolling the world's hot spots), there was a real chance of a permanent seat and veto power for Tokyo on the Security Council. The problem is that Article 9 of Japan's Constitution prohibits the country from maintaining armed forces. Tokyo has, nevertheless, built a quarter million-strong army, navy, and air force — simply by calling it a "Self-Defense Force." Under pressure from abroad, Japan has already relented and contributed 6000 soldiers to the UN's Cambodia peacekeeping force, but they are prohibited from combat. (Asiaweek, March 3, 1993, p. 26). As the second-largest contributor to the UN treasury, Japan, thus, has a strong case for becoming a permanent member of the Security Council. Now in that select group are the victors of the Second World War: Britain, France, Russia, China, and the U.S. It remains to be seen, however, whether the Japanese people or the rest of Asia, think trading the Peace Constitution for a place in the Security Council iB a good idea. (Ibid.) The 'Miyazawa Doctrine' A proposal that calls for a wider security arrangement in Asia, including China, Southeast Asia and perhaps Russia and the United States, is the so-called "Miyazawa" Doctrine. Currently, Japan and Southeast Asia depend on the U.S. military presence.

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The proponent of the doctrine, ertswhile Japan's Prime Minister Kiichi Miyazawa, posits that Japan "will not walk the path of a military power." Said he: "If an emergency requiring a military response arose in the region, the U.S. military role is irreplaceable and this will not change in the forseeable future." Expectedly, several Asian countries that suffered from Japanese atrocities during World War II (including the Philippines) do not want an aggressive Japanese role in the region. The Japanse government has called for new legislation to expand the role of the Japanese military to allow participation in UN peacekeeping activities likely to involve use of force. Crocker Snow, Jr., in his T h e Phoenix Spreads Its Wings" [The World Paper, January 1993, p. 11), wrote: that ever since the Gulf War two years ago, when Japan became one of the biggest money lenders to the UN military effort, the Japanese have been tortured by efforts to pass a bill allowing their Self Defense Force to operate outside Japanese borders and territorial waters (which under their U.S.-imposed Constitution of 1946 is prohibited). After painful parliamentary wrangling, the first 675-person Japanese expeditionary force has landed in Kampuchea as part of an international peacekeeping contingent. This is a step of both symbol and substance. It is the first time that Japanese ground forces have operated openly and officially outside their borders since the Imperial Army and Navy dissolved in the final cataclysmic days of World War II. In fact, very shortly after the end of the official U.S. occupation of Japan in November 1951, the Japanese Maritime Self Defense Force played a significant and deliberately unheralded role in one of the most important military events of the post-World War II era. A small squadron of minesweepers was pressed into the service of the U.S. Navy to lead it into Korea's heavily-mined waters off of Inchon. This was part of General Douglas MacArthur's brilliant surprise attack on September 15, 1950, that turned the tide of the then near disastrous UN effort in the Korean war. Japanese sailors were a significant (if title-known) part of this historic avent. (Curiously, it was Japanese minesweepers again that were put to use in the aftermath of the Gulf War). Snow Jr. continued: T h e Germans, by contrast, have long been a key component of N A T O , with the Bundeswehr participating fully in N A T O exercises since 1955. Technically, the Bundeswehr can

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participate anywhere in N A T O exercises. But as a legacy of their postwar Constitution barring troop action beyond their borders, the Germans have been sensitive to their neighbors' fears and rarely allowed German uniforms to be seen outside the fatherland. German anti-terrorist forces, however, have operated beyond German borders as well. Germany's role in N A T O has also had its own little-known historical curiosity as unknown as Japan's role in the Korean War. At the time of France's defeat at the hands of Ho Chi Minh's Viet Minh army at Dien Bien Phu in May 1954, the U.S. was preoccupied with the Soviet threat in Western Europe and eager for full German military participation in A T O . The French were understandably unenthusiastic. But they wanted desperately to salvage something from their defeat in Indochina. A diplomatic deal was struck. The U.S. would publicly support the Catholic and French-oriented leader of the southern half of Vietnam, Ngo Dinh Diem, in return for the French swallowing their fears about Germany being allowed into the N A T O club. In January 1955, Germany joined N A T O . "Japan and Germany, the two nations separated by 7,000 miles that shared a martial destiny as the Axis Powers 50 years ago, are, coincidentally, sharing a more than material destiny today. Yes, they are the second-and third-ranked economies of the world in total G N P , and have been for almost 20 years. Yes, they are powerful nations that, despite their muscle and because of their martial history, aspire [for] proper international respect as measured for example, by a seat [i|n the United Nations Security Council. And yes, each nation is suffering today something more than a hiccup in its record of unimpeded growth and prosperity. Japan is burdened with an overripe stock and real estate market and the vagaries of a political scandal that at last may undermine the country's stolid, and stable controlling political force, the Liberal Democratic Party. Germany, in the aftermath of digesting poor East Germany, is struggling economically and socially with eruptions of violence prompted by radical skinheads and neo-Nazis and directed equally at Aryan and non-Aryan immigrants from the east. But there is something just as important as any of this in the coincidence of the two militarily neutraled nations each taking steps now to extend their military presence regionally, if not internationally.

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"Today, as Japan is carefully planting its mat construction unit of 600 engineers in Southeast Asia (where the Japanese Imperial Army did its dirty work 50 years ago), Germany's Christian Democrats and Social Democrats are deadlocked over the issue of allowing Bundeswehr troops to get involved in trying to quell the Serbian actins in the once and future Yugoslavia. The governing Christian Democrats would like to amend the Constitution to allow for both peacekeeping missions and peacemaking missions (such as Operation Desert Storm). The Social Democrats would like to keep the Bundeswehr's actions restricted to the UN blue-helmeted peacekeeping sort. It was hot-war history that caused the defanging of these two major powers. It is post-Cold War realpolitik that i6 turning things around."

Term of the^Na'nttrmahent Members. The non-permanent members of the Security Council shall be elected for a term of two years. In the first election of the nonpermanent members, however, three (half of the original 6 temporary members) were chosen for a term of one year. A retiring member shall not be eligible for immediate reelection." 10

Number of Representatives: "Each member of the Security Council shall have one representative." 11

Principal Function: "In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council P R I M A R Y RESPONSIBILITY for the maintenance, of international peace and security and agree that in carrying out its duties under thiB responsibility, the Security Council acts on their behalf." 11

'"Art. 23, No. 2. UN Charter. " A r t . 23, No. 3, UN Charier. " A r t . 24. No. 1, UN Charter.

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Voting: (1) procedural (not very important matters) — as amended, nine affirmative votes (any nine) (2) non-procedural (substantive or very important matters) — nine affirmative votes including the concurring votes of the five permanent members (qualified nine affirmative votes) N O T E : Here, any of the permanent members may exercise the so-called V E T O power. An abstention or an absence is NOT considered a veto. 13

(3) the determination or characterization of whether a question is procedural or non-procedural is by itself a N O N PROCEDURAL question (substantive question) and consequently, this makes possible also the exercise of the V E T O POWER. NOTE: Because of this, the so-called DOUBLE V E T O may be exercised: (a) a permanent member may cast a first veto on the question of characterization. Hence while all the rest may say the matter is procedural, a permanent member may say N O . (Hence the matter will be regarded as substantive or non-procedural). (b) Having declared the matter non-procedural, the question may now be submitted to another voting (this time, on the M E R I T S ) . Here again, the permanent member in No. ( a ) may V E T O any proposed action. (Hence, the name "DOUBLE V E T O " — a first veto on characterization and a second veto on the merits). * 1

NOTE: The following are generally regarded as among the "procedural" questions: ''i^t (1)

establishment of subsidiary organs;

(2)

rules of participation and procedure in discussions; and

(3) organization of meetings.

"See Repertoire of the Practice of the Security Council, 1946-1951. pp. 170176.

"See Ibid., pp. 154-155.

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Upon the other hand, decisions involving ENFORCEMENT measures are non-procedural and, therefore, very important. Dependent Bodies of the Security Council These include, inter alia: 1. the United Nations Disengagement Observer Force (UNDOF); 2. the United Nations Peacekeeping Force in Cyprus (UNFICYP); 3.

the United Nations Interim Force in Lebanon ( U N I F I L ) :

4. the United Nations Military Observer Group in India and Pakistan ( U N M O G I P ) ; and the 5. the United Nations Truce Supervision Organization (UNTSO). Added to this list are the United Nations Observer Forces in Iraq, Yugoslavia, and in many other areas of the world. THE ECONOMIC AND SOCIAL COUNCIL (ECOSOC) Composition: "Art. 61, UN Charter: "(1) The Economic and Social Council shall consist of 18 (now, 54, under the Amendment) members of the United Nations elected by the General Assembly. "(2) Subject to the provisions of paragraph 3, six (now, nine) members of the Economic and Social Council shall be elected each year for a term of three years. A retiring member shall be eligible for immediate reelection. "(3) At the first election, eighteen members of the Economic and Social Council shall be chosen: The term of office of six members so chosen shall expire at the end of one year, and of six other members at the end of two years, in accordance with arrangements made by the General Assembly. (Under the amendment, there now consist groups of 9.) "(4) Each member of the Economic and Social Council shall have one representative."

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Some Important Functions: (1) To make or initiate studies and reports with respect to international, economic, social, cultural, educational, health and related matters to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned; (2) To make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedom for all; and (3) To call international conferences on matters falling within its competence. 15

Voting: (1) Each member of the Economic and Social Council shall have one vote. (2) Decisions of the Economic and Social Council shall be made by a majority of the members present and voting. 16

THE TRUSTEESHIP COUNCIL UN Trusteeship Council This Council supervises territories administered by various nations and placed under an international trusteeship system by the United Nations. Each nation is charged with developing the self-government of the territory and preserving and advancing the cultural, political, economic, and other forms of welfare of the people. Composition The Trusteeship Council is currently composed of 5 members: 1 member — the United States — that administers a trust territory, and 4 members — China, France, Russia and the United Kingdom — that are permanent members of the Security Council but do not administer trust territories. 17

,s

A r t . 62, UN Charter. " A r t . 67. UN Charter. " T h e membership ie akin to the UN Security Council's Permanent Mem-

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The following countries ceased to be administering members because of the independence of territories they had administered: Italy and France in 1960, Belgium in 1962, New Zealand and the United Kingdom in 1968, and Australia in 1975. France and the U.K. became non-administering members. As of January 1, 1994, there was only one trust territory: the Trust Territory of the Pacific Islands (administered by the United States). Voting (1)

Each member of the Trusteeship Council shall have one

vote. (2) Decisions of the Trusteeship Council shall be made by a majority of the members present and voting. " 1

Functional Commissions 1.

Statistical Commission (SC)

2.

Population Commission (POPCOM)

3.

Commission for Social Development (CSD)

4.

Commission on Human Rights (CHR)

5.

Commission on the Status of Women (CSW)

6.

Commission on Narcotic Drugs ( C N D )

Regional Commissions 1.

Economic Commission for Europe (ECE)

2. Economic and Social Commission for Asia and the Pacific (ESCAP) 3. Economic Commission for Latin America and the Caribbean (ECLAC) 4.

Economic Commission for Atrica (ECA)

5. Economic and Social Commission for Western Asia (ESCWA)

'•Art. 89. UN Charter.

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Functions: (1) In the so-called strategic areas (designated in trusteeship agreements), the Trusteeship Council assists the Security Council in political, economic, social and educational matters. " 1

(2) In general, however, the Trusteeship Council helps the General Assembly in: (a) considering reports submitted by the Administering Authorities; (b) accepting petitions and examining them in consultation with the Administering Authorities; (c) providing for periodic visits to the respective trust .territories at times agreed upon with the Administering Authority; and (d) taking these and other actions in conformity with the terms of the trusteeship agreements. 20

(3) The Trusteeship Council shall formulate a questionnaire on the political, economic, social, and educational advancement or the inhabitants of each trust territory; and the Administering Authority for each trust territory within the competence of the General Assembly shall make an annual report to the General Assembly upon the basis of such questionnaire. 21

(4) To insure that there is no overlapping and to set up commissions to deal with economic conditions and collect facts and figures on conditions over the world. (5) To issue studies and reports and make recommendation to the Assembly and specialized agencies. INTERNATIONAL COURT OF JUSTICE N O T E : This matter is discussed under the Chapter on Remedies and Sanctions.

" A r t . 83. No. 3. UN Charter. A r t . 87, UN Charter. A r t . 88. UN Charter.

w

a,

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THE SECRETARIAT Com position: The Secretariat shall consist of a Secretary-General and such staff as the Organization ( U N ) may require. The Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council. He shalt be the chief administrative officer of the Organization. 22

NOTE: (1) The first Secretary-General was Mr. Trygvie Lie of Oslo, Norway. The official nomination of Mr. Lie by the Security Council " was approved by the General Assembly on February 1, 1946, by a vote of 46 to 3. He resigned on Nov 10, 1952. On March 31, 1953, his successor Mr. Dag Hammarskjold of Sweden was nominated by the Security Council, a nomination approved by the General Assembly one week later. * On Sept. 18,1961, Hammarskjold died in a mysterious airplane crash. He was then on his way to attend a conference with President Moise Tshombe of Katanga, in an effort to help solve the Belgian Congo Crisis. The next SecretaryGeneral was Mr. U Thant followed by Kurt Waldheim, an Austrian. 23

ra

2

(2) Apparently irritated and annoyed by Mr. Hammarskjold's way of settling international crises (Russia erroneously thought that the Secretary-General leaned in favor of the Western Democracies), Russia proposed the Troika Plan of having THREE Secretaries-General (one to represent the Western Democracies, the second, to represent the Communist countries, and the third to represent the N E U T R A L I S T countries), each of whom could V E T O the actuations or proposals of either of the other two (the T R O I K A VETO). The proposal, however, was received coldly, and since then has not been insisted upon by Russia. (3) The incumbent secretary-general of the United Nations is Boutros Boutros Ghali, the former deputy prime minister of Egypt. Ghali, who assumed his new UN position on January 1, 1992, is a specialist in international law and is best remembered as " A r t 97, UN Charier. "•Schwebel. The Secretary General of the United Nations, p. 53. " M i l l e r , Dag Hammarskjold and Crisis Diplomacy, p. 12. "Ibid., p. 22

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among the key players in the talks that led to the Egypt-Israel peace treaty otherwise known as the 1978 Camp David accords. As the UN's sixth secretary-general, he receives a $195,000 salary per annum. He succeeds Javier Perez de Cuellar, a Peruvian, who served two five-year terms. Principal Functions (1) The Secretary-General is the Chief Administrative Officer of the UN Organization. * 2

(2) The Secretary-General shall act in that capacity in all meetings of the General Assembly, of the Security Council, of the Economic and Social Council, and of the Trusteeship Council, and shall perform such other functions as are entrusted to him by these organs. The Secretary-General shall make an annual report to the General Assembly on the work of the Organization. 26

(3) The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. 21

NOTE: The practice of sending a special memorandum to the Security Council on matters before it— and of taking a position (siding or agreeing with one country or group)—was introduced by Mr. Trygvie Lie in connection with the Iranian Case (1946). Since then this "intervention" has been more or less tolerated.-" Restrictions In the performance of their duties, the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization. w

NOTE: To precisely avoid the use of undue influence, the UN generally has no inclination to select a Secretary-General lhat

•''Art. 97, UN Charier. AH. 98, UN Charter. " A r t . 99, UN Charter. S e e Miller, op eit.. p. 17. " A r t . 100, No. 1. UN Charter. X

M

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would come from the five Permanent Powers, or from the N A T O countries (since the candidate would no doubt be vetoed by Russia) or from Communist regions or from Latin-American nations (since these are sufficiently numerous in the Assembly). The choice is, therefore, usually confined to Scandinavian, Asian, and Arab countries.• 1U

HOW THE UN CHARTER MAY BE AMENDED Amendments to the UN Charter may be made thru the steps indicated in Arts. 108 and 109 ( 1 , 2, and 3) of the Charter: Art. 108. Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two-thirds of the Members of the United Nations, including all the permanent members of the Security Council. Art. 109. 1. A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a twothirds vote of the members of the General Assembly and by a vote of any nine members of the Security Council. Each Member of the United Nations shall have one vote in the conference. 2. Any alteration of the present Charter recommended by a two-thirds vote of the conference shall take effect when ratified in accordance with their respective constitutional processes by two-thirds of the Members of the United Nations, including all the permanent members of the Security Council. 3. If such a conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that session of the General Assembly, and the conference shall be held if so decided by a majority vote of the members of the General

"'See Miller, op. cit., p. 21.

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Assembly and by a vote of any seven members of the Security Council. NOTE: For amendments to the Statute of the International Court of Justice, we have Arts. 69 ant 70 of B a i d Statute: Art. 69. Amendments to the present Statute shall be effected by the same procedure as is provided by the Charter of the United Nations for amendments to that Charter, subject, however, to any provision which the General Assembly upon recommendation of the Security Council may adopt concerning the participation of States which are parties to the present Statute but are not Members of the United Nations. Art. 70. The Court shall have power to propose such amendments to the present Statute as it may deem necessary, thru written communications to the Secretary-General, for consideration in conformity with the provisions of Article 69. UNITED NATIONS UNIVERSITY (UNU) Established in 1973, with the approval of its Charter by the UN General Assembly, the United Nations University or U N U began operations in September 1975 as an autonomous institution within the framework of the U N . The aims and activities of U N U are two-fold: One. To promote scholarly international and scientific cooperation to help solve urgent global problems. Two. To strengthen research and training capabilities in developing countries in order to address global problems via its academic institutions, individual scholars, and research and training centres. (Already, U N U has established three research and training centres: one for development economics research [Finland]; one for natural resources [Africa, in Coted d'lvoire]; and one for new technologies [The Netherlands]). The University's priority areas of concern under its Second Medium-Term Perspective for 1990-1995 are: (a)

universal human values and global responsibilities;

(b)

new directions in the world economy;

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(c)

sustaining global life-support systems;

(d)

advances in science and technology; and

(e)

population dynamics and human welfare.

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U N U is headquartered in Tokyo, Japan. HAGUE ACADEMY OF INTERNATIONAL LAW The Hague Academy of International Law (Academic de droit international de La Haye) is widely acknowledged by academicians and diplomats all over the world as the foremost school of international law today. Founded in 1923 with the financial support of the Carnegie Endowment, this prestigious academy of learning is an institution designed for the study and teaching of Public and Private (Conflict of Laws) International Law and related subjects. Its purpose is to encourage a general overview and impartial examination of the problems arising from international relations in the field of law. Along this line is the Academy's Centre for Studies and Research in International Law and International Relations, the distinguishing features of which lie in the personal and effective participation of members in scientific work. This is open to those possessed of advanced academic degrees, the Academy's Diploma, or proof of at least three years' actual practice in international affairs. No doubt about it, the Hague Academy is, in truly continental fashion, for in its areas of specialization, the alumni are among the best in dealing with complex issues of international law. These specialized areas, including: International Trade, International Organizations, International Finance and Banking, and International Protection of Human Rights — are conducted (lectures and workshops) at the Peace Palace (Palais de la Paix) at the Hague, Netherlands (Holland). This historic edifice houses the International Court of Justice, the Permanent Court of Arbitration, and the extensive Andrew Carnegie Library. The Peace Palace, because of the central geographical location, is also the situs of various international congresses and treaty conventions. Levity aside, the enormous problems of international law affect one and all. First and foremost, they concern those whose function

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has an international aspect, whether it is as participants in political life, as diplomats or political scientists, as teachers or as spokesmen for international peace and understanding. We have been witness on how international law today expands to every conceivable field and becomes a frame around continuing international cooperation. But we have also seen how much remains before nations can live in security and justice protected by a modem, effective network of international local rules. If one should, therefore, ask how the Hague Academy of International Law, apart from its principal function of providing lectures in its hallowed halls, has contributed to the spread of the knowledge and to the development of international law, the resounding answer would be: first, by its completely international structure and composition, which are in themselves unique for such a school of learning, and second, by the publication in a series of volumes, known as the Recueil des Cours, or Collected Courses of the Academy, of the texts of the course offerings since the inception of these lectures in 1923. The published lectures, needless to say, constitute a valuable record of the development of international law and are available for reference and study in libraries and government departments worldwide. The Academy has, during its half a century and a decade of history, tried to contribute to a better understanding of international law and its function to universities in far-flung countries, via what has been referred to as a sort of "missionary zeal" in the Held of international law. It is worthwhile to stress at this juncture that the Academy is an institution which is independent from any government and is primarily financed by private foundations in various countries. It is also worth recording that the so-called "cold war" has never hindered the close collaboration of lawyers, both from the East and the West, who continued to be called to the Academy on the sole basis of their scientific competence. The Academy has every reason to be proud of its heritage, that in these many years, international lawyers from communist (socialist) and non-communist (democratic) countries alike, never hesitated to lecture and participate side by side here on the same programme. It is without reservation, therefore, that the Academy has rightly earned a scientific and academic reputation nonpareil; it has responded to a felt need; and in its achievements, has been preeminently successful.

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For world peace and security are not possible in the long run until and unless the nations and their leaders are imbued with consuming interest for, knowledge of, and respect for, right and justice in the community of nations. The Academie de droit international de La Haye forms as you have realized by now, part of the history of the development of international law and so, also of the growth however hesitant, however slow, of a global legal order. For that matter, one of this book's authors is extremely proud to be a product of this first-ofits-kind world institution of learning. SOME RECENT CRISES THE UN HAS TRIED TO SOLVE (1)

Berlin Crisis

After the defeat of Germany in World War I I , it was for purposes of military occupation divided into four Zones, each occupying power being allocated one Zone (the American Zone, the English Zone, the French Zone, and the Russian Zone). Berlin, the capital was, however, to be administered jointly by the four Powers. Berlin, although divided into four Sectors, each under a Commander, was smoothly functioning under the Inter-Allied Control Council, when surprisingly, on June 24, 1947, the Russian Commander of the Russian Sector decided not to recognize the actuations of the Control Council. By July 1, 1948, cooperation had ceased between the three Western Sectors (West Berlin) and the Eastern Sector (East Berlin) and the Temporary Constitution of Berlin (which had beeh previously approved by the Four Powers in 1946) was no longer followed in the East Berlin (controlled by the Russians). In the meantime; the Western Zones of Germany, (American, English, and French) formed the Federal Republic of Germany (this included West Berlin, by virtue of the Third Transitional Law passed by the German Bundestag on January 4, 1952); Upon the other hand, the Eastern Zone held by Russia became the German Democratic Republic (East Germany). Although East Berlin was not formally incorporated into East Germany, all important legislative enactments of the latter was extended into the former, usually by East Berlin legislation. As a result of 31

32

^'Protocol of Sept. 12. 1994 among the U.S.. Russia, and England; Agreement of May 1, 1945 among the U.S., Russia, England, and France. Tke Berlin Wall: A Defiance of Human Rights, International Commission of Jurists. Geneva, March 7, 1962, p. 26. yi

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growing differences between the Western Powers and Russia, the latter had cut off land communications between the Zones of the Western Powers and West Berlin (The Berlin Blockade of Sept., 1948). The blockade was, however, broken by air-lift operations by the Western Democracies which were able to drop from the air supplies for West Berlin. Russia was thus forced to lift the blockade. To prevent East German residents from going to West Germany, an 859-mile long "closed area" was decreed by the Russian authorities all along the border of the two Germanies; however, it was still comparatively easy for residents in East Berlin to go to West Berlin, particularly for "short visits." Berlin, thus, became a "Freedom Gate" thru which disgruntled East German citizens could pass to the free world. Annoyed by the migration and "escape" of East Germans thru Berlin, the Russian authorities decided to erect the "Berlin Wall" on August 13, 1961 (26 miles of border between East and West Berlin; height varied from 7 to 13 feet; in addition to the Wall, there were wire fencing and barbed wire entanglements), and passage was prohibited except on a "special permit" (which was, however, been very rarely granted). 33

This "Wall" clearly defies human rights, more particularly, an individual's "right to leave any country, including his own." Incidentally, it should be stated that in 1960, Nikita Khrushchev of Russia had already alleged that geographical logic dictated that the entire Berlin (East and West Berlin) ought to belong to East Germany (because practically the whole of Berlin is inside the geographical limits of East Germany); he, therefore, gave an "ultimatum" to the Western Democracies to leave West Berlin within six months. At the end of the period, however, nothing happened. The N A T O , as a matter of fact, warned Russia that any attempt to take over West Berlin would invite an armed conflict with the Powers of the N A T O . 34

In connection with the erection of the "Berlin Wall," the Declaration of the Congress for Cultural Freedom, read: 35

"It is one thing for a social order to force its citizens, by the millions, to seek asylum elsewhere. It is still more reprehensible to cut off their escape by means of walls and barbed

^Coyle, The United Nations, p. 93. S e e Clause 13, par. 2, Universal Declaration of Human Rights. ^August 29. 1961. M

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wire across city streets, to threaten them at the point of bayonets, to shoot at them in flight as if they were runaway slaves. This is not a matter of politics or ideology or of social philosophy. It is a matter of the most elementary respect for human rights — and one which all the nationals of the civilized world are in accord as having recognized. The Universal Declaration of Human Rights, which was adopted by the General Assembly of the United Nations, states this right unequivocally. "Everyone has the right to leave any country, including his own . . . " 36

Indeed, as the International Commission of Jurists puts its "The Wall that prevents the citizens of the German Democratic Republic and East Berlin from choosing freedom cannot conceal the injustice perpetrated behind it. Its construction thru the heart of the city has neither legal nor moral justification." ' 3

But on November 9, 1969, several weeks after the resignation of East Germany's longtime Communist leader, Erich Honecker, the wall's designer and chief defender, the East German government opened its borders to the West and allowed thousands of its citizens to pass freely thru the Berlin Wall. The fall of the Communist government in East Germany left only Soviet objections to German reunification to be dealt with. Soviet objections to a reunified Germany belonging to N A T O were dropped in return for German promises to reduce their military economic cooperation with the Soviet Union. On February 13, 1990, the four major World War II allies agreed on a framework for negotiating the reunification of German after a 45-year division. The swift pace of agreement on the framework indicates that reunification could be a much nearerterm goal than anyone anticipated Reunification will have profound effects on the heretofore separate West and East German governments, Europe, and international politics generally. Already, Bonn is picking up a considerable tab for the economic costs associated with reunification. (Joan Johnson-Freese, "Can Germany Afford Reunification and a Space Program too?," Technology in Society, Vol. 12, No. 4, 1990, pp. 355-356).

"Clause 13, par. 2. "The Berlin Wall, supra. 1962, p. 46.

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The day after the wartime allies announced reunification plans in Ottawa, Bonn approved a supplementary budget of $4.1 billion in aid to East Germany until reunification can be achieved. There was also another $1.2 billion earmarked for specific uses, ranging from business credits to currency exchanges. (Ibid., p. 361). More critically, it indicates the kind of near-term financial commitment that will be necessary for reunification to be achieved. As much as $300 billion will be necessary in order to overhaul the East German economy. (See R. Knight, "The Arithmetic of Unifying Germany," U.S. News & World Report, Mar. 5, 1990, p. 42). Other European countries such as France and Britain are already worrying that in the long term, reunification could make the already economically dominant West Germany rich and powerful enough to comprehensively dominate European affairs. (Joan Johnson-Freese, op.cit., p. 361). In the opinion of Dr. Joan Johnson-Freese, an associate professor of political science at the University of Central Florida, "|m]ost Germans seem to feel that reunification is culturally and politically desirable, and with as many as 1,800 East Germans relocating in West Germany every day, it is now apparently inevitable. [AndI [ulntil complete integration occurs, Bonn will clearly be responsible for all German citizens, [although] [i)n the long term, a reunited Germany can be an even greater economic giant than it is now." (Ibid., pp. 362, 367). In ceremonies beginning on the evening of Tuesday, Oct. 2, 1990, and continuing throughout the next day, the German Democratic Republic acceded to the Federal Republic and Germany became a united and sovereign State for the first time since 1945. Some 1 million people gathered at midnight Oct. 2 at the Reichstag in Berlin. At midnight, a replica of the Liberty Bell, a gift from the U.S., rang, and unity was officially proclaimed. Following unification, the Federal Republic became the second largest country in Europe, after the Soviet Union. The new Parliament convened on Jan. 1991, with Helmut Kohl elected as chancellor. (He has occupied the position since 1982). On June 20, the German Parliament officially voted in favor of moving the seat of the federal government to Berlin, although given the huge expense of such a move, it would be done slowly and require 12 years before Berlin would be a fully functional federal capital.

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(2) South Africa and Apartheid As a State-imposed system of institutionalized racial discrimination and segregation, apartheid, has been practised by South Africa as an official policy since 1948. Under apartheid, black South Africans — the overwhelming majority of the people of the country — are denied fundamental rights and liberties; they are not allowed to participate in the political life of the country and are subject to hundreds of repressive laws and regulations. Both the General Assembly and the Security Council, respectively, have declared apartheid incompatible with the UN Charter. The Assembly has condemned apartheid as a crime against humanity, and the Security Council, which has considered the question since 1960, has termed apartheid a crime against the conscience and dignity of mankind. For instance, in December 1988, the General Assembly criticized some States for continuing their economic relations with South Africa, and others who exploited the opportunities created by sanctions imposed by other States. It called on those States which had increased their trade with South Africa to sever all trade relations. On April 1989, the Inter-Governmental Group to Monitor the Supply and Shipping of Oil and Petroleum Products to South Africa and the Special Committee Against Apartheid, recommended that the Security oil embargo and that all oil-producing, shipping and handling States should enact legislation to stop the flow of oil to South Africa. By mid-December 1992, South Africa President F.W. de Klerk has called for elections for a non-racial interim government and constituent assembly by April 1994. The African National Congress ( A N C ) said it hoped democracy negotiations could be speeded up to allow South Africa to hold its first all-race elections. Communist Party leader and close A N C ally Joe Slovo said: "In general, there seemed to be a serious recognition on all sides on the need to begin walking the last mile." Thus, "for the first time since the signing of the UN Charter (in 19451. a head of State from South Africa has appeared at the United Nations. PreB. De Klerk Bpoke at the U N after his parliament approved a law giving blacks an official Bay in the gov-

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eminent. [By mid-October 1993], South Africa has thrown off the vckt of racial discrimination and has rejoined the community of ; a inns. White separatists have thankfully shrunk to a political minority, although they are vociferously protesting the new law in parliament and called De Klerk 'a despicable traitor.' [E]xpected[]y] sanctions will be lifted against South Africa and a South African delegation will soon be allowed to return to the General Assembly." (Beth Day Romulo, T h e Death of Apartheid," Manila Bulletin, Oct. 14, 1993, p. 10). Along this line, Nelson Mandela and F.W. de Klerk won the Nobel Peace Prize on October 15, 1993 for working "to peacefully end apartheid" and for pushing South Africa toward democracy. "By looking ahead to South African reconciliation, instead of balk at the deep wounds of the past, they have shown personal integrity and great political courage," the Norwegian Nobel Committee said in awarding the $625,000 prize to be shared by the two men. De Klerk, who descended from generations of white conservative Afrikaners, changed the course of history when he became president in August 1969. He immediately began dismantling the apartheid lawB of race division and white privilege and offered the majority blacks a role in governing their country. Upon the other hand, Mandela, leader of the African National Congress, emerged without bittemes from 27 "long, lonely, wasted years" in prison in 1990, saying his goal was the same as it had been when he launched the ANC guerilla wing in 1960: "A democratic, non-racial South Africa." Both Mandela and De Klerk said that their winning the Nobel Peace Prize is "an acknowledgment of the role of the government and the A N C to pull South Africa from apartheid to democracy." Manila Bulletin, "Mandela, Klerk Win Nobel Prize," Oct. 156, 1993, pp. 1, 8). Meanwhile, a democractic South Africa led by Mandela would act as a bridge between industrialized and underdeveloped countries, according to a blueprint of his party. A foreign policy document being drawn up by Mandela's A N C sees South Africa ridding itself of pretensions to being a Western power. Instead, it would take its full place in the underdeveloped South, where it could use its First World ties to act as an interlocutor on development with the industrialized North. Thereupon, A N C foreign policy would stand on six (6) basic principles: (1) the pursuit of human rights; (2) promotion of democracy worldwide; (3) adherence to justice and international law; (4) the peaceful solution of conflict; (5) the reflection

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of African interests; and (6) the growth of regional and international economic cooperation. (See Business World, "ANC's South Africa: Pariah to Good Neighbor, Oct. 15, 1993, p. 9). (3) Cambodian Crisis A bloodless coup toppled Prince Norodom Sihanouk in 1970. It was led by Lon Nol and Prince Sisowath Sink Matak, Sihanouk's cousin. Sihanouk moved to Peking to head a government-in-exile. On October 9, 1970, Lon Nol proclaimed himself President. The Lon Nol regime was overthrown in April 1975 by Pol Pot, a leader of the Communist Khmer Rouge forces, who instituted a xenophobic reign of terror. Pol Pot was in turn ousted on Jan. 8, 1979, by Vietnamese forces. A new government led by Heng Samrin was installed. At a meeting in Kuala Lumpur, Malaysia, on June 22, 1982, Sihanouk formed an alliance with Son Sann, his former prime minister, and Khieu Samphan, Pol Pot's representative, to oppose the Heng Samrin regime installed by Vietnam. While Sihanouk remained in exile, about 9,000 non-communist troops loyal to him and another 15,000 under Son Sann joined about 35,000 communist Pol Pot forces fighting the 170,000 Vietnamese troops supporting the Heng Samrin government. The Cambodian insurgents suffered a major defeat in Mar. 1985 when Vietnamese forces overran their camps in Cambodia and forced them into Thailand. The Vietnamese Plan originally called for them to withdraw by early 1990 and negotiate a political settlement. The main issues were the level of inclusion of the Khmer Rouge, with their record of atrocities, in any new government, the organization and powers of the United Nations in the transition. The talks, however, stalled thru 1990 on into 1991 with no clear resolution in sight. A continuation of the mid-1991 ceasefire appeared shaky as the warring parties alleged violations by their opponents. (See The 1992 Almanac, pp. 161-162). On October 23, 1991, however, the Cambodian government and leaders of 3 rebel factions signed a peace treaty in Paris, that gave promise of ending the long aimed struggle for control of the Southeast Asian country. Representatives of 18 other nations, including the U.S., the then Soviet Union, and China, also signed the treaty. During an interim period, United Nations personnel, both military and civilian, would overeee a transition during which the factions would largely disarm. Prince Norodom Sihanouk, a

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former ruler of the country, would serve as provisional leader of Cambodia during the transition. Under the Treaty, 350,000 refugees would be repatriated. The Far Eastern Economic Review, in its editorial "New World Disorder" (December 3, 1992 issue, p. 3), said it all: "Little more than a year after diplomats in Paris toasted a new peace plan for Cambodia, that agreement is coming apart at the seams. By any definition, including its own, the UN-organized effort has been a flop, and there is little prospect for better things tomorrow. To the contrary, in its short stay the UN Transitional Authority in Cambodia (UNTAC) has managed to partially disarm everyone but the Khmer Rouge, the net result of which is to leave them relatively strengthened against the other three Cambodian factions. Indeed, in the time since the Khmer Rouge affixed its signature to the peace document it has actually expanded the territory under its control. "That the Khmer Rouge would instantly set about sabotaging an agreement designed to discredit them comes as no surprise. What is surprising is that anyone ever believed for one moment that a few thousand harmless UN supervisors and the promise of a vote would have the Khmer Rouge lying down with the lambs. As a new world order dawns, the breakdown of the Cambodian peace plan ought to occasion grave second thoughts not only about that long-suffering nation but about...the h a r d interests of countries in the line of fire. In Cambodia, the existing Hun Sen government in Phnom Penh has been deemed illegitimate because of its Vietnamese sponsors. Even more important is the obstacle presented by neighboring Thailand. As w i t h all the other actorB in this drama, the Thais h a v e long-standing grievances and interests that explain, though not excuse, their connivance w i t h the Khmer Rouge. Lasting peace cannot be had by papering over these competing interests. "The UN secretary-general has decided against the imposition of sanctions against the Khmer Rouge, which controls a booming business in gems and logging along the Thai border. But even if the UN eventually agrees on sanctions, they will not work without a genuine and concerted effort from Bangkok. This is highly unlikely to be forthcoming, and not just because the Thai firms making a fortune enjoy close ties with gov-

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ernment and military figures. Historically, Thais have fought the Vietnamese for control of Cambodia, and, operating on the old principle that the-enemy-of-my-enemy-is-my-friend, their cold-blooded assessment of the Khmer Rouge is that it serves as a check on Vietnamese ambitions. They also know that the Thai army is probably not up to the task of defending Thais should they upset the Khmer Rouge into action. Better to wink than take them on. "In the short term this has some brutal logic, but Thailand's longer-term interest lie in the opposite direction. For one thing, Pol Pot and his ageing cohort will not be around forever, and when Cambodia ultimately does come back to normal, Cambodians are not going to look kindly on a neighbor that aided and abetted those responsible for the murder of more than a million of their countrymen. For another, should the Khmer Rouge return to Phnom Penh, there is the guarantee of thousands of fresh refugees pouring into Thailand and the potential for a re-run of the 1970 'ethnic cleansing' of Vietnamese living in Cambodia. Should that happen, there is no ruling out another invasion from Vietnam. "In short, Thailand has to start thinking about the Frankenstein it is creating next door. As Thai commentator Kavi Chongkittavong has argued, angering the Khmer Rouge is not without its costs but it is preferable to a Cambodia in turmoil and the long-term ill-will bound to result from current policy. As for the U N , if it cannot persuade the Thais to accept a peace within its own interests, what Cambodian will believe it capable of forcing the Khmer Rouge to accept terms that would mean its own demise?" In early December 1992, Khmer Rouge, the genocidal Communist faction arrested six unarmed United Nations peacekeepers, accusing them of being spies for the Phnom Penh government. The evident Khmer Rouge purpose was to see whether they can get away with busting the UN-sponsored peace plan. The Security Council has been taking a cautious incremental approach to Khmer Rouge violations. So the Khmer Rouge refuse to open up areas they control for preparations for the May elections? The United Nations will go ahead in other areas with the other three factions. Meanwhile it will try to cut off oil imports to and lumber exports from Khmer Rouge territory. For the latter mission it will need the cooperation, so far unavailing, of the Thai generals who profit

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from the lucrative lumber, gem and drug trades. Perhaps the United Nations, by calling the bluff of the Khmer Rouge and credibly threating to isolate them, will persuade them to back off. In these circumstances it might help if the Khmer Rouge knew that the United Nations was mulling other choices. The ruling Cambodian People's Party ( C P P ) . nevertheless, continued to threaten to reject the results of the election designed to end a quarter century of political brutality and bring the country to democracy. The CPP claimed there were voting irregularities in the election. It made the claim after the royalist F U N C I N P E C party emerged as the leader in the count. With nearly 90 percent of votes counted, F U N C I N P E C had 1,530,755 votes, or 45.7 percent; the CPP, 1,277,759, or 38.1 percent, and the Buddhist Liberal Democratic Party ( B L D P ) , 125,803, or 3.7 percent. According to unofficial computations of the proportional representation system, this result will given around 57 National Assembly seats to F U N C I N P E C and 52 to the CPP. The computations give the B L D P of former premier Son Sann as many as 10 seats and the rightwing Molinaka Party, one. The National Assembly recently adopted a constitution, with a two-thirds majority, and then formed a government. On June 2, 1993, the UN Security Council passed a resolution calling on all parties to honor the results of the election. With 22,000 UN peacekeepers and more than $2 billion in operational costs, the UN peace plan for Cambodia has indeed moved forward with a general election in 1993 as warring Cambodian faction leaders have compromised in the face of international pressure. To a gradual extent, the peacekeepers have left a void. Altogether with traditional Khmer factionalism, conflict-oriented Kilmer's socio-psychological-cultural traits, a history of foreign patronage, the existence of the Khmer Rouge, and a historical Vietnamese involvement in Khmer affairs, the road to peace, democracy, and human rights have demanded almost two years of UN presence, a new Constitution signed on Sept. 24, 1993, a single election, and a new king, Norodom Sihanouk. Surely, the road to liberal democracy in Cambodia will be long and difficult. Arguably, an extended UN trusteeship over Cambodia has allowed time for change, and for the emergence of new faces and new ideas for nation-building and with the UN peace plan necessarily a bridge to arrive at this goal; peace, of course, i6 the prerequisite, particularly to those who have at last

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presented Cambodia with an opportunity for change. (See Abdulgaflar Peang-Meth, T h e United Nations Peace Plan, the Cambodian Conflict, and the Future of Cambodia," Contemporary Southeast Asia, Vol. 14, No. 1, June 1992, p. 33). To hold otherwise, the war of ballots, may prove as deadly as the war of bullets, has surely been. On Oct. 1, 1993, the Khmer Rouge offered to stop fighting and start talking about peace as the guerrillas' nominal leader Khieu Samphan declared his suppport for the new King Sihanouk. Said he: "We the DK (Democratic Kampuchea Party (Khmer Rouge), as well as the whole Cambodian nation and people, wish the new Constitution be respected and implemented by everyone in its spirit and in its letter, especially its Article 1, and Article 52." (Manila Bulletin, "Khmer Rouge Offers Ceasefire," Oct. 2, 1993, p. 3). Article 1 of the (Cambodian) Constitution defines Cambodia as a sovereign, independent, peaceful, permanently neutral and non-aligned kingdom. And Art. 52 provides that the State should protect these tenants, adopt a national reconciliation policy, and ensure public order and security to improve living standards for Cambodians. (4) Lebanon Crisis Tension along the Israel-Lebanon border increased in 1972. Israel, which stated that it was acting in reprisal for raids carried out on its territory by Palestinian commandos, attacked Palestinian camps in Lebanon. In April 1972, at Lebanon's request and in accordance with a Security Council decision, a ceasefire observation operation was set up by U N T S O ( U N Truce Supervision Organization) in the Israel-Lebanon sector. Another UN peacekeeping force was set up in March 1976 after Israeli forces invaded southern Lebanon following a Palestinian commando raid into Israel. The Security Council called on Israel to cease immediately its military action against Lebanon's territorial integrity, and it established the UN Interim Force in Lebanon ( U N I F I L ) to confirm the withdrawal of Israeli's forces, restore international peace and security, and help the Lebanese government to reestablish its effective authority in the area. In July 1981, a de facto ceasefire came into effect and which lasted until mid-1982. On June 6, 1982, Israeli forces reached and surrounded Beirut. While hostilities continued, the Security Council called for a halt to military activities, and demanded that Israel

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withdraw all its military forces to the internationally-recognized boundaries of Lebanon and immediately lift the blockade of Beirut. A ceasefire went into effect on Aug. 12. However, tension greatly increased on Sept. 14 when President-elect Bashir Gemaycl and several others were killed in a bomb explosion. The following day, the Israeli Defense Forces ( I D F ) took new positions in the area. The situation in the Beirut area remained unstable, with continuing loss of life and destruction of property throughout the remainder of 1983 and 1984. Commencing in Feb. 1985, however. Israel carried out its own three-phase plan for unilateral redeployment and withdrawal of its forces, completed by mid-1985. After the withdrawal, both the number and intensity of attacks by Lebanese resistance groups against Israeli forces and Lebanese irregulars armed and controlled by them increased sharply. 1965 to mid-1989 saw shelling and bitter fighting, continuing into August, when it reached an unprecedented level. For the first time during his tenure, the Secretary-General felt compelled to invoke Article 99 of the UN Charter, and conveyed to the Security Council his growing anxiety about the escalation of violence in and around Beirut. Meanwhile, U N I F I L continued to cooperate with the Lebanese authorities, UN agencies, and other organizations — in extending humanitarian assistance to the local population — distributing food and medicines, treating Lebanese at medical centres, helping the families of prisoners, and detonating mines and roadside bombs in the area of operation to prevent civilian casualties. The Secretary-General, convinced that the complexities of the Lebanese problem were such that they could best be resolved thru Arab efforts, with the backing of the international community, has remained in close contact with the Tripartite High Arab Committee (comprised of the Heads of State of Algeria, Morocco, and Saudi Arabia), aimed at establishing an effective and definitive ceasefire and putting into effect a plan for the settlement of the Lebanese crisis. (5) Afghanistan Crisis On January 3, 1980, fifty-two member-States of the UN requested an urgent meeting of the Security Council to consider the situation in Afghanistan and its implications for international peace and security. They stated that Soviet military intervention in Afghanistan, which had taken place late in 1979, had destabilized the area and threatened international peace and security.

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In November 1988, the Secretary-General was given a new mandate by the General Aasembly. Resolution 43/20 represents an unprecedented decision by a UN organ, since it mandates the Secretary-General to operate in a reality clearly falling within the framework of domestic affairs, i.e., the dialogue among the various segments of the Afghan population for the purpose of achieving a broad-based government. (6) Iran versus Iraq UN efforts to secure a peaceful settlement in the conflict between Iran and Iraq began at the very onset of hostilities in September 1980. Meeting on Sept. 28, the Security Council called on Iran and Iraq to refrain from further use of force and urged them to accept mediation or conciliation. Between 1980 and 1986, the Security Council adopted seven resolutions and issued numerous statements calling at various times for: (1) a withdrawal of forces to internationally recognized boundaries; (2) the cessation of military operations against civilian targets; (3) respect for the right of free navigation and commerce in international waters; (4) restraint from actions which would endanger peace and security as well as marine life in the Gulf region; and (5) an exchange of prisoners of war. On July 20, 1967, the Security Council unanimously adopted Resolution 598 (1987) which, a year later, was to become the framework for reaching a ceasefire agreement. The Resolution has an eight-pronged objective, thus: 1. An immediate ceasefire and withdrawal of forces to internationally recognized boundaries without delay. 2. A request for the Secretary-General to dispatch a team of observers to verify, confirm and supervise the ceasefire and withdrawal. 3. To urge the release and repatriation of the prisoners of war (POWS) without delay. 4. To call upon Iran and Iraq to cooperate with the Secretary-General in implementing the resolution and in mediation efforts to achieve a comprehensive, just and honorable and settlement of all outstanding issues. 5. straint.

To call upon all States to exercise the utmost re-

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6. To request the Secretary-General to explore the question of entrusting an impartial body with inquiring power to look into responsibility for the conflict. 7.

To recognize the need for reconstruction efforts.

6. To request an examination of measures to enhance security and stability in the region. On July 23, 1987, Iraq officially accepted the Council's Resolution. Upon the other hand, the government of Iran informed the Secretary-General of its acceptance of Resolution 598 (1987). Several years after, and still no implementation, Tehran on Oct. 18, 1993, has sought for the "full implementation of Resolution 598 that ended 8 years of war with Iraq in 1988. As mentioned in no. 2 objective above, the release and the repatriation of Prisoners of wars, has been the most important issue on the agenda. Iraq says it has released all Iranian POWs but that 20,000 Iraqi soldiers are still held in Iran. Tehran says that 5,000 Iranian POWs are still imprisoned in Iraq. (Abante Tonite, "Iraqi-Iranian Start Reconciliation Talks," Oct. 19, 1993, p. 3; Manila Bulletin, "Iran Wants UN Resolution Enforced," Oct. 19, 1993, p. 4). (7) The Middle East Crisis The recent Middle East talks, with the initiative of then U.S. President George Bush and followed up by President Bill Clinton have tried to find common ground settlement of a long-standing dispute that has spawned three great wars and destructive confrontations. In a series of bilateral and multilateral meetings — Arab, Israeli, and Palestinian leaders — negotiated for the first time since the Palestinian partition in 1948. The ongoing conference hopes to lead to the end of anguish of a troubled land and that in accordance with pertinent United Nations resolutions, lands that are now under occupation will be given in favor of lasting and just peace in the region. The U.S. has repeatedly stated that peace is only possible if Israel gives up at least some of the territories. And few analysts believe the peace negotiations can make any progress unless Israel accepts this point. According to the Nov. 20, 1991 survey made of major U.S. Jewish fund-raisers and activities, 205 of the 339 Council of Jewish Federation board members and local presidents found that 88 percent favored a "territorial compromise" under which Israel traded

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occupied land for peace. Arguably, for Israel to split the occupied West Bank with Palestinians would be a recipe for perpetual conflict. Israel also occupies the Golan Heights on its border with Syria and the Gaza Strip on the Egyptian border. The Economist (Nov. 2-8, 1991) has provided a background on the Palestinian issues, thus: T h e biggest Arab-Israeli bother is the absence of agreed borders for Israel. The United Nations resolution setting Israel up in 1947 split Palestine into one Arab and one Jewish State. Israel accepted, the Arabs did not. In the ensuing war Israel grew bigger. The 1949 armistice lines came to be seen as Israel's borders by most of the world, but not by the Arabs. Israel grew again in the six-day war of 1967, when it captured the Sinai peninsula and Gaza Strip (from Egypt), the West Bank (from Jordan) and the Golan Heights (from Syria). The Security Council passed Resolution 242 calling for peace based on Israeli withdrawal from territories (not, deliberately, the territories] occupied in the recent conflict" and the right of every State in the area to live in peace within secure and recognized boundaries. A UN mediator set out to implement this but failed. Later in 1967 the Arab League enunciated a policy of'no peace with Israel, no recognition of Israel and no negotiations with Israel.' "Syria and Egypt launched another war in 1973. Six years later came an Israeli-Egyptian peace and Israel's evacuation of the Sinai peninsula (but not the Gaza Strip). An Israeli promise of self-government for Palestinians in the West Bank and Gaza came to nothing. In 1987 a Palestinian uprising, the intifada, erupted. A year later the Palestine Liberation Organization agreed to a two-State (Israel and Palestine) solution. T h e wars produced refugees . About 700,000 Palestinians fled or were driven from their homes in 1948. Today there are more than 5m Palestinians. Of these, just under 2m live under Israeli occupation. More than lm are in Jordan. Some 300,000 Palestinians live as refugees in Lebanon, 260,000 in Syria. Many of the 400,000 Palestinians who lived in Kuwait have left since the Gulf War. Arabs who in 1948 remained in the areas that became Israel have Israeli citizenship; they now number 800,000. "Under Israeli law, any Jew has a right of return and can become an Israeli citizen; 10,000 Soviet Jews a month now do so. The Palestinian

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refugees also demand t h e

right

to

r e t u r n t o t h e i r former

homeB. "The Palestinians insist that theirs is a problem of Statehood denied, not merely a refugee problem. That is why for many years the P L O rejected Resolution 242, which makes no mention of Statehood. The P L O says Jerusalem must be the capital of its State, but Israel annexed east Jerusalem and its suburbs (from Jordan) in 1967 and has ringed the town with Jewish buildings. King Hussein renounced Jordan's claim to Jerusalem and the West Bank in favor of the Palestinians in 1988. Jerusalem now has 350,000 Jews and 130,000 Arabs. T h e United States has said many times in the past that it is not in favor of an independent Palestinian State in the occupied territories, or of permanent Israeli occupation, or of chopping Jerusalem in half again." But as the adage goe6: T h e r e are no impossible dreams; there only are dreams waiting to be fulfilled." With this aphorism, the inevitable has become a reality. As a Carole King original, "I heard the earth move under your spell," goes, an earth-shaking cum historic agreement between two ertswhile mortal enemies, Israel and Palestine — a veritable recognition of the right of each other to exist as separate nation-States — was formally signed on Sept. 14, 1993 at the White House in Washington, D.C. Leading actors were Israeli Prime Minister Yitzhak Rabin and Yasser Arafat, chair of the Palestine Liberation Organization ( P L O ) . Broker of the universally-hailed agreement was U.S. Pres. Bill Clinton, who witnessed t h e signing ceremony, and which was sealed by a historic handshake between Arafat and Rabin. Political scientist Manuel F. Almario, in his "A Historic Handshake," Philippine Graphic (Oct. 8, 1993, p. 10), summed up the "event" in this wise: "Unable to exterminate each other, the Arabs and Jews take the first big step toward peace by resolving the Palestinian issue. The argument is expected to pave the way for Israel's reconciliation with the Arab States in the Middle East with which Israel had been in conflict [with] since the onset of the Palestinian question. Under the pact, the P L O , representing the Palestinian people, agrees to renounce terrorism, recognize the right of Israel to exist, and declare that sections of the P L O covenant that call for Israel's destruction are 'no longer valid.'

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"For its part, Israel agrees to recognize the P L O 'as the representative of the Palestinian people' and pledge to start negotiations with the P L O on broader Mideast issues. Israel will also withdraw from the Gaza Strip and the Jericho area in the West Bank, allowing the Palestinian full autonomy in the region. [Further,] Israel will allow Palestinians who had been displaced by the 1967 war, in which Israel seized big slices of Arab territory, to return to their former homes. Israel claims that 200,000 people were displaced in the war, while the P L O places the number at 800,000." A visibly elated Pres. Clinton remarked (after the "historic handshake"), thus: "The children of Abraham, the descendants of Isaaac and Ishmael, have embarked together on a bold journey. We bid them shalom, salaam, peace." Undaunted, Henry Kissinger argues that America's leadership — not its money or might — is needed to complete the making of peace. Asks he: "Will the euphoria prove an obstacle if it leads to disillusionment after the deadlocks appear? But the ultimate challenge remains the follow-on negotiations. Fitting two States into a territory 50 miles wide — the distance from the Mediterranean to the Jordan River — would be difficult even if irredentism were not built into the situation. This remains above all a psychological problem. After all, most wars start between countries that are legally at peace; recognition has never precluded war or even conquest. (H.A. Kissinger, "Twining a Fairy Tale Into Reality," Newsweek, Sept. 27, 1993, p. 26). After breaking a psychological barrier with their historic handshake on the White House lawn, already Palestinian radicals are distressed by what Arafat told Rabin at Egyptian President Hosni Mubarak's Cairo Palace — that he hoped they would talk "like cousins." (U.S. News & World Report, "The Perils of Coming Together," Oct. 18, 1993, p. 16). But, of course, unless independence is accompanied by economic growth, the peace process cannot succeed. (See Philippine Star, "Independence for All Is Final Aim in Middle East," Oct. 8, 1993, p. 3). (8) El Salvadoran Conflict Since 1979, increasingly violent clashes occurred between leftist and rightist forces. In the national legislative and municipal elections held in March 1985, the Christian Democratic Party of Jose Napoleon Duarte, a moderate civilian, scored an unexpected

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electoral triumph by winning the majority seat in the new National Assembly. The rightist parties that had been dominant in the previous Constituent Assembly demanded that the vote be nullified, but the army high command rejected their assertion the voting had been fraudulent. At the same time, U.S. officials said that while the rebels still were far from being defeated, there had been marked improvement in the effectiveness of government troops in the civil war against anti-government guerillas that has been waged mainly in the countryside. Talks with the rebels broke down in September 1986. Duarte's inability to find solutions led to the rightwing A R E N A party controlling half the seats in the National Assembly, in the elections of March 1988. The decisive victory of Alfredo Christiani, the A R E N A candidate for president, gives the right-wing party effective control of the country, given their political control of most of the municipalities. (See The 1992 Almanac, p. 182). In June 1991, UN-mediated ceasefire talks held in Mexico between the government and rebel forces ended without an agreement, although progress was reportedly made. And in December 14, 1992, the last of the leftist rebels to disarm turned over their weapons to UN peacekeepers for destruction, many firing final burst into the air. The Dec. 14 display was a prelude to Dec. 15's proclamation of a formal end to a 12-year old civil war bred of economic inequity that left more than 75,000 people dead in this small, Central American land. Beginning Dec. 15, the Farabundo Marti National Liberation Front, whose five armies fought the government, becomes a legal political party. A ceasefire went into effect on Februaryl, 1992, two weeks after a UN-brokered peace accord was signed in Mexico City, but the series have wrangled over complex timetables for completing the terms of the agreement. UN Secretary-General Boutros Boutros Ghali, who pushed thru the last stage of negotiations begun in 1984 under the late President Duarte, arrived on Dec. 14, 1992, proclaiming a moment of peace. "At last," Boutros Ghali said, "El Salvador was celebrating the formal end to the conflict." He praised both leftist rebels and current President Cristiani for cementing the peace. (9) Falkland Islands Dispute An Argentine invasion of the 1982, involved Great Britain in a Britain). Although Argentina had known as the Malvinas in Spanish,

Falkland Islands on April 2, war 8,000 miles away (from long claimed the Falklands, negotiations were in progress

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until a month before the invasion. The Margaret Thatcher government responded to the invasion with a 40-ship task force, which sailed from Portsmouth on April 5. U.S. efforts to settle the dispute failed and United Nations efforts collapsed as the Argentine military government ignored Security Council resolutions calling for a withdrawal of its forces. When more than 11,000 Argentine troops on the Falklands surrendered on June 14, 1982, Mrs. Thatcher declared her intention to garrison the islands indefinitely, together with a naval presence. (10) The Persian Gulf Crisis "Operation Desert Shield" became operation "Desert Storm" on January 16, 1991 when a devastating air attack was launched against Iraq. In a remarkably swift campaign, allied forces soon liberated Kuwait and occupied 15% of southern Iraq. With an air war that had already devastated Iraq's nuclear and chemical weapons capability, not to mention the majority of its ground forces, the ground war was more a rout than the "mother of all battles" threatened by Saddam Hussein. After a mere one hundred hours of ground combat, Iraq accepted a ceasefire. Iraqi casualties were estimated at 100,000, as opposed to less than 400 Americans, 60 British, 35 French and 300 in the forces of the Arab coalition. But Iraqi forces had torched hundreds of oil wells before departing, leaving a legacy of pollution that would endure for years to come. On April 3, 1991, the UN Security Council passed resolution 687 arranging for a permanent ceasefire, Iraq acceptance of the 1963 frontier, a full inspection of Iraqi demilitarization, compensation for war damages, and the placement of a peacekeeping force on both sides of the Iraq-Kuwait border. The essential allied objectives of demonstrating that aggression would not succeed and the humiliation of Iraq was achieved. But Saddam Hussein remained in power, and with sufficient military punch to subdue uprisings in the south and in the Kurdish areas of the north. As Western troops went home, Iraq was left mostly to its own murderous devices and Iraq's neighbors were left with a humbled and badly wounded enemy. This latest war in a volatile region was [apparently] over, but it was unlikely to be the last we would hear of conflict in the Gulf. (George Segal, The World Affairs Companion, 1991, p. 267). Meanwhile, the UN Security Council affirmed an embargo against military supplies to that country and a trade embargo was

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still in place, pending claims of compensation for damage to Kuwait. In a decisive move aimed to lead to the lifting of the UN embargo imposed on Iraq after the August 1990 invasion of Kuwait, Iraq, on October 8, 1993, handed the UN a list of its foreign supppliers of nuclear and chemical weapons technology in a bid to end a crippling three-year embargo. (See Manila Bulletin, "IraqDivulges Arms Suppliers," Oct. 9, 1993, p. 2). The head of the UN Special Commission ( U N S C O M ) on Iraq, Rolf Ekeus, said the Commission had received the answers to its questions on the suppliers, although he did not know if the list was complete. He described the move as an important step and said it constituted programs. Iraq also gave, according to EkeuB, "new substantial data" on the productivity of prohibited items which he did not identify. Baghdad said it submitted the list after UNSCOM and the IAEA (the International Atomic Energy Agency) signed a letter promising to use the information about the suppliers for technical ends and to keep it a secret. Iraq has said it hoped Ekeus' talks on setting up longterm monitoring of its weapons programs, particularly that of the unconventional weapons issue, had been settled. As this developed, monitoring cameras at two Iraqi missile test sites have been turned on after negotiations with Baghdad. "My understanding is they were activated since Sept. 25, 1993, but were not immediately turned on pending further UN-Iraqi talks," said Tim Trevan, a senior UN weapons expert. The cameras are part of the program to make sure Iraq does not restart weapons programs banned since the end of the Gulf War in 1991, they have, as of mid-October 1993, been installed. {NOTE: In the Philippines, the Overseas Workers Welfare Administration ( O W W A ) is considering its hiring of a foreign law firm to represent itself before the United Nations Compensation Commission against Iraq. This was disclosed by O W W A Administrator David Corpin who cited the need for a law firm "with clout" and "prestige" to handle the war claims pending before the UNCC. On the corporate claim, it was learned that O W W A is asking for some P412 million. Upon the other hand, a total of 24,000 individuals have also submitted their war claims to O W W A , 8,000 of which were already sent to the U N C C . The O W W A used P100 million during the war for the repatriation of workers affected by the conflict.

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Some 17 countries are asking Iraq for war reparations although the Philippines has the beBt chances of getting its claims approved since it has adopted a very orderly scheme for going about the matter. Admittedly, however, the war claims against Iraq may take a number of years since there is still no clear indication from the Arab state that it will pay those affected by the 1990 Gulf crisis. | (11) Liberian Crisis The Security Council has approved the use of force to stop arms shipments from reaching rebel fighters in the war-ravaged West African nation of Liberia, a country already bristling with weapons. In mid-November 1992, the 15-member council approved an embargo under the same UN provisions used to punish Yugoslavia and Iraq. The measure is intended to support a sevennation West African force trying to defeat guerrilla leader Charles Taylor by cutting off Taylor's access to military supplies. But two of t h e West African nations — Burkina Faso and Ivory Coast — have been accused of allowing arms and ammunition to reach Taylor's forces in the past. They deny aiding the rebels now. Ambassadors acknowledged the country is awash in weapons, and several privately expressed skepticism that an embargo would have any real effect is slowing the fighting. "Weapons remain plentiful throughout the country, and almost one million Liberians displaced in surrounding countries and in Monrovia do not feel they can safely return to their homes," U.S. Ambassador Edward J. Perkins noted in his speech to the Security Council. "The problems which plague Liberia — proliferation of weapons, insecurity and banditry, ethnic tensions, huge numbers of refugees, a shattered economy — will not yield to military solutions," he said. In calling for disarmament, Perkins said "Our experience in Angola, Cambodia, and elsewhere amply demonstrates that peace without disarmament is tenuous at best. This is especially true in Liberia, where proliferation of guns is accompanied by indiscipline, drugB, and widespread human rights abuse." The resolution calls for all belligerents in Liberia to observe a ceasefire and honor a peace process, leading to disarmament and free elections for a new government. The resolution is the first major UN effort to promote peacekeeping by a regional organization. Only the W e s t African peacekeeping force will b e allowed to receive weapons and other military supplies under the council reso-

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lution, said Andre Erdoe, the Hungarian ambassador and current president of the Security Council. (12) The Yugoslavian Crisis Indeed, the world is too dangerous a place to overlook military aggression because it bears the label "domestic." The "civil war" confronting Croatia and Serbia, two ertswhile Yugoslavian republics, meets more than the eye. For military aggression cannot be the right answer. To take Croatian land and incorporate it in a Greater Serbia can only breed more hatred than there already is. The solution must be political guarantees for ethnic minorities — guarantees that the Economic Community (formerly known as European Economic Community) has now made a condition of recognition. On January 15, 1991, the Community agreed to recognize the Yugoslav republics claiming independence. Anthony Lewis of the New York Times wrote: "Anyone who deal[tl with the Yugoslav problem learn[t] the de[pth] of Ithe] conflict between [the] Serbs and [the] Croats. A Serbian-American writes to tell how her grandfather was mistreated by Croats. Bitter feelings are understandable. But shelling hospitals cannot make things better." About 6,000 people have been killed since Croatia declared its independence from the Yugoslav federation, sparkling a rebellion by Croatia's Serb minority and military action by the federal army. The United Nations, upon recommendation of the Security Council, has proposed a 10,000-strong "Blue Helmet" peacekeeping force to be deployed in war-torn Croatia to defuse the warring republics. Necessarily, the UN forces would only be deployed if there is showing that there will be a genuine end to the fighting. Be this as it may, the New York Times has commented, thus: "There are two minimum requirements for any republic that wants to be welcomed into the community of nations: that it comply fully with the United Nations-sponsored ceasefire, and that it begin to take practical steps to protect ethnic minorities within its borders. "Recognition, along with providing aid and trade, as well as military intervention, is one of the few levers outsiders have for ending the internal strife. It ought not to be squandered unconditionally. "With

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the vision of a workable confederation gone, reality requires the de-recognition of Yugoslavia. Full recognition of individual States can willingness demonstration of their willingness to live with each other, separately. "De-recognition of Yugoslavia sends the proper message. It assures Croatia and Slovenia that the world will not accept the reimposition of unwanted Yugoslav control over their territory or tolerate forced changes of republics' borders. And it isolates the government of Serbia, which must bear the major burden of blame for the violence." In an editorial, "Silence Over Yugoslavia," The New York Times (and reprinted in the International Herald Tribune, Nov. 23-24, 1991, p. 8), wrote: "To Guernica, Coventry, Stalingard and Dresden the world may now add Vukovar and Dubrovnik. Europe thought it had finally banished the horrors of total warfare in 1945. A photograph of the war's victims portrays a crueler truth. But it need not be an inevitable truth. To stare at this picture of unburied bodies from the siege of Vukovar in bleeding Croatia is to see the need for the world to act. For now, the fighting is limited to Croatia, in what used to be Yugoslavia. But unless civilized powers bestir themselves, there is no certainty it will stop there. The former communist world encompasses a vast ethnic archipelago of enclaves, nationalities and vitural tribes stretching from Germany to Siberia. With communism no longer imposing a forced peace across its empire, nationalities have begun to challenge old political and territorial arrangements. "Is there nothing the rest of the world can do besides look on in horror? The answer must be yes, if the vaunted New World Order is to be anything but a rationalization for protecting the oil lifeline in the Gulf. Western countries have mechanisms thru which to act —the North Atlantic Treaty Organization, the Conference on Security and Cooperation in Europe, the European Community and, ultimately, the United Nations Security Council. As it demonstrated in Kuwait, the West also knows how to recognize new definitions of sovereignty and how to act againBt barbarism and tyranny. The world obviously cannot intervene in every local conflict. But when, as in the former Yugoslavia, organized armies brutalize civilians in sustained battles over boundaries, the interna-

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tional community has a duty to become involved. That involvement can be based on two principles: that unilateral changes of existing boundaries by force cannot be tolerated, and that the basic human rights of threatened minorities need to be protected. The enforcement mechanisms range from economic embargoes to the internationally authorized use of military force. All were used in the Iraq crisis. The immediate need is to apply them in what used to be Yugoslavia. The European Community and the Security Council have shown more concern than effectiveness. The greatest barrier to more active measures is the absurd fiction that a legitimate and sovereign Yugoslav federation still exists. Yugoslavia's constitution has become like many of its cities, a smoking hulk. "The rest of the world should break off formal relations with the federal non-government, and insist that the governments of the component republics, the only effective authorities remaining, take responsibility." Meanwhile, the Security Council on May 25,1993, established a war crimes court at The Hague to try people accused of murder, rape, torture, and other atrocities in the former Yugoslavia. It will be the first international tribunal of its kind since the main allied powers set up courts at Nuremberg and Tokyo after World War II to try leading Axis war criminals. The vote on the resolution was a unanimous 15-0. The court, not expected to be in operation before September, would include 11 Security Council endorsed law (a 34-article statute) governing the functioning of the court, which will try cases involving grave breaches of the Geneva Conventions, violations of the 1948 convention against genocide, and other serious crimes against humanity and the laws of war. By September 1993, Saravejo and much of the rest of Bosnia had been comparatively quiet as the warring sides haggled over a proposal to divide Bosnia into Serb, Croat, and mostly — Muslim mini-States. But the plan fell apart by the first week of October, when the Serbs and Croats withdrew territorial concessions upon offer to the Bosnian government because the latter demanded more land. Nonetheless, Bosnian President Alija Iztbgovic and Croatian President Franco Tudjman met on Oct. 8 in Vienna where they issued a joint appeal for the introduction of N A T O troops in disputed territories, followed by arbitration to divide said lands. (13) Somalian Crisis A U.S. announcement on January 9, 1980, that bases for

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America ships and planes in the Indian Ocean would be sought in Somalia, Oman, and Kenya, brought a request from Somalia for $1 billion worth of modern arms and an equal amount of economic aid. In August 1980, an agreement was signed giving the U.S. use of military bases in Somalia in return for $25 million in military aid in 1981 and more in subsequent year. In 1988, guerrillas in the north went on the offensive and threatened the northern regional capital. President Siad Barre, who took power on October 21,1969, in a coup that established a Supreme Revolutionary Council as the governing body and the later to be replaced by the People's Assembly, fled the country in late January 1991. His departure left Somalia in the hands of a number of clan-based guerilla groups, none of which trust each other. The installation of Ali Mahdi Mohammed in the capital by the United Somali Congress, based on the Ha wye clan, as interim president, won the disapproval of other groups. Most of the south is controlled by the Somali Patriotic Movement. In December 3, 1992, the United Nations launched the world's biggest armed humanitarian rescue, sending a force led by 28,000 Americans to silence the guns of Somali bandits and help feed hundred of thousands of starving people. The 15-member UN Security Council, outraged by the plundering of relief aid destined for refugee camps filled with the dying, voted unanimously for the huge operation. For all the boldness of the move, it came more than a year after severe food shortages and civil unrest were first reported in Somalia. And the Security Council mandate was vague: to use "all necessary means" to create "a secure environment" for relief operations. The resolution did not say if that might mean creating some kind of UN-controlled civil government in chaotic Somalia, or whether the troops would try to disarm bandits and militiamen. It said nothing about who would pay for the operation, or how long it would last. "No longer than is necessary," U.S. Ambassador to Somalia Edward Perkins said, adding that troops would steer away from political interference: "It is, for the Somali people to decide their own future." The clans have been battling in Somalia, a country with no functioning government today, since the collapse of President Siad Barre's rule in Jan. 1991, worsening a famine that has killed 300,000 people and put 2 million at risk of starvation. Well-armed militias, mostly untrained young men and boys, have stolen at

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least half of the food and medicine shipped to Somalia and paralyzed a 500-member UN peacekeeping force in place since September 1992. In mid-February 1993, a UN-sanctioned international force replaced the U.S. troops who went to Somalia in December 1992 to assist in humanitarian relief efforts. Be it remembered that relief organizations had appealed for assistance after local warlords and roving gangs prevented food from reaching the starving population. Thus far, 21 U.S. soldiers have died since the UN took control of the multinational operation in Somalia in May 1993. Five months after, U.S. President Clinton ordered two AC-130 gunships to Somalia to bolster UN forces there. The aircraft arrived along with 1,700 extra U.S. troops who disembarked in Mogadishu. The Clinton decision was prompted by a fierce battle at the military airport on Oct. 3, 1993 between U.S. forces and the militia of fugitive warlord Mohamed Farah Aidid. (The Philippine Star, "U.S. Tries to Negotiate Somali Ceasefire," Oct. 10, 1993, p. 2). Owing to the increasing death toll of U.S. soldiers, the U.S. has started to weigh the cost of involvement in such missions as in Somalia. In his speech to the General Assembly, Clinton has already alluded to a new policy on U.S. involvement in multinational peacekeeping missions, saying Washington would require clear goals, time limits, and a better definition of command and financing. The cost and duration of UN peacekeeping missions around the globe has already evoked considerable criticism in the United States, and the five permanent Security Council members are working on developing new guidelines for intervention. As already adverted to, the attacks on U.S. soldiers, even though they have been organized by a small group of militiamen supporting warlords, e.g., Aidid, have forced the world's last remaining superpower to question its involvement. Be it remembered that UN forces have never been subjected to such systematic and concerted attacks since the 1960s in Katanga, in what was then the Belgian Congo. Thus, the solution in Somalia is by-and-large political, not military, and the U.S. decision to place the Mar. 31, 1994 deadline on withdrawing its troops will force the UN and the others to find a political solution. Otherwise, the famine and chaos that existed prior to the intervention will return. (See Philippine Star. "Somalia Mission Represents Critical Test for U N , Oct. 10, 1993. p. 12; See also John King, "Somalia Operation Exposes Problems

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With Clinton's UN Strategy," Phil. Star, Oct. 10, 1993, p. 12 and Reid G. Miller, "U.S. Pullout Could Bring Down UN Operation in Somalia," Phil. Star, Oct. 10, 1993, p. 10). At any rate, a pivotal question arises at this point: Does the UN have the right to intervene? The spectacle of tens of thousands of UN troops (led by the U.S.) piling into Somalia not to wage war, but to save hundreds of thousands of liveB from famine and political anarchy — could prove a milestone in establishing the international community's "right to interfere" in conflicts around the globe where the toll of human nursery becomes too great to contemplate from a distance. According to France's Minister for Humanitarian Action Bernard Kouchner, "taking action in Somalia is only the beginning. People are also dying elsewhere in southern Sudan, in Liberia, in Mozambique, in Angola, in Burma, and in Bosnia."Arguing that humanitarian action and the right to interfere are the great modern political ideas, that States do not belong to governments, i.e., they belong to the people, Kouchner hopes UN Security Council Resolution 794, which authorized Operation Restore Hope to Somalia, will prove a turning point in history by enshrining the principle of humanitarian intervention in the affairs of sovereign States. Nevertheless, Kouchner's ideas are far from universally welcome and raise searching questions about humanitarian versus political interests, the distinction between altruism and neocolonialism. The International Red Cross fears the "right of inteference" could jeopardize its role as a neutral broker in conflicts and shatter a fragile international respect for the Geneva Conventions which delineate the limits of acceptable behavior in wartime. Arguably, human interference, while laudable for non-governmental organizations (NGOs), is potentially harmful when undertaken by governments with interest to defend. Said one of Kouchner's most vocal critics, Rony Brauman (head of the medical charity Medecins sans Fronticres (MSF), "this action in Somalia introduces real confusion between what is humanitarian and what is military." (14) Libyan Crisis Whenever a State faces a disaster which thretens the lives of its nationals, iB said State (in such a situation) under an obligation to allow international organizations into its territory to assist

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those in need of help? In other words, does the issue pit the notion of State sovereignty against the sanctity of human life? The State, upon which the well-being of its people depend, must accept that aid, and in situations where it cannot or will not distribute the relief to the people, must allow legitimate, qualified organizations to do so. (See Chan Leng Sun, "Humanitarian Assistance by International Organizations: A Question of Compulsory Access to Victims," Singapore Journal of Legal Studies, December 1991, pp. 320-347). In recent timeB, a most concrete ground for action was invoked by the UN Security Council on the basis of threatened international peace and security. Thus, on April 5, 1991, the Council passed Resolution 688 (in connection with the plight of the Kurdish population in Iraq) and, thereby, gave international law a prod in the right direction. By ordering Iraq to "allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq," the Council made a crucial contribution to the individual human being's struggle for protection under international law. The same isue of State sovereignty versus the human life's sanctity may be deemed, by analogy, applicable to two (2) historical events, namely: (1) the U.S. Bombing of Libya in 1986; and (2) the UN Sanctions on Libya in 1992. On April 15, 1986, U.S. bombers targeted certain specific areas in Libya. These were: (1) the Sidi Bilal Naval Base; (2) the Bab-el Azizia Barracks; (3) the Tripoli Military Airfield; and (4) the Benghazi Port. The air assault left 37 dead (including Muammar Qadhafi's 15-month old daughter) and 93 injured (including Qadhafi's two young sons). Then American President Ronald Reagan declared the assault on Libya an act of "anticipatory reprisal" (otherwise called a "preventive raid," "preventive self-defense," or "anticipatory counter-attack") aimed against future terrorist atttacks. Cited as an act of anticipatory reprisal was the plastic bomb blast at La Belle Discotheque in West Berlin, which killed two Americans and injured 230 others. Reagan blamed Libya for the bombing. According to authors Emerenciana Y. Arcellana and Herman Joseph Kraft, in their "The Use of U.S. Force" {National Midweek, April 29, 1992, p. 16), "anticipatory reprisal" is an extension of the concept of reprisal based on a broad interpretation of self-defense

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and designed to inhibit future attacks. "Reprisal," opined Arcellana and Kraft, is basically unlawful, for by this means as the State takes the law into its own hands to effect its own brand of justice, is one of several forcible measures short of war. Arcellana and Kraft provide some illustrations of reprisals, to wit: (1) The action taken by Holland when it seized Venezuelan public vessels as an act of reprisal against Venezuela for the dismissal of the Dutch Minister to Venezuela (1908); (2) The bombardment and occupation of the Greek Island of Corfu by Italy to secure redress from the Greek government for the assassination of an Italian general within Greek territory (1923); (3) The South African's army'B raid into Angola in retaliation for attacks of the Southwest African People's Organization (SWAPO) based in Angola; and (4) The U.S. embargo against the USSR after the shooting down of a Korean Airlines 747 jet plane (1983). Condemning the U.S. bombing of Libya, Arcellana and Kraft opined: "As for the argument that the U.S. air raids were intended to prevent or discourage 'future terrorist outrages,' no pre-emptive short-term action has really stopped or could stop any terrorist group from proceeding with its activities. It will not deter fanatics, nor intimidate the oppressed determined to seek redress. A war of attrition against terrorism can only end with no victor. Two wrongs do not make a right. The answer to violence is not more violence but reason, understanding, an earnest discussion of differences, mutual accomodation, and goodwill." For failure to surrender two Libyan suspects in the bombing of Pan American Airlines 103 on Dec. 21, 1988 over the Scottish village of Lockerbie killing 270 people, the United Nations effective April 15, 1992, enforced three (3) sanctions approved by the Security Council Resolution of March 31, 1992: One. Barring all nations from allowing their aircraft to use their teritory or airspace for travel to or from Libya, unless the planes carry humanitarian supplies approved by a UN committee; Two. Prohibiting all States to supply aircraft or aircraft components and weapons, ammunitions, and military component to Libya; and Three. Expulsion or recall of (most) Libyan diplomats. The UN Security Council Resolution also demanded Libya's cooperation in a probe into the 1989 bombing of a French airline

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over the West African State of Nigeria in which 171 people were killed. In addition, it wanted Libya to prove by "concrete actions" that it had renounced tenrorism. Colonel Muammar Qadhafi's Libya earlier sought the intervention of the International Court of Justice (ICJ), a bid geared toward frustrating U.S. and British-backed economic sanctions. The World Court in the Netherlands, however, refused to intercede against the two countries in Tripoli's confrontation over the Libyans charged with bombing a Pan Am jumbo jet, ruling the matter had not properly been put before the Security Council. The Council refused to accept a compromise offer by Morocco to hand over Libyan suspects in Malta, Libya's island neighbor. The proposal fell short of UN demands that they be handed over unconditionally for trial in the West. The U.S. and Britain, which issued warrrants for the arrest of the suspects, rejected the proposal. Libya's position in the World Court was supported by judges from Algeria, Sri Lanka, Madagascar, Nigeria, and Egypt. Those opposing, aside from the U.S. and Britain, included judges from France, Italy, Russia, Japan, Poland, China, Norway, Guyana, and Venezuela. The U.S., for its part, expressing delight over a decision against Libya by the ICJ, hinted it may: (1) try to cripple the country's oil industry via an oil embargo or boycott of Libyan oil sales; and/or (2) take military action. As of Jan. 1, 1994, the Security Council has continued the sanctions imposed on Libya in 1992 for failing to hand over for trial two men accused of blowing up a PanAm airline over Scotland in 1988, as already adverted to. For its part, the United States said it would consider moves to add an oil embargo if this proved necessary*to obtain Libyan compliance. (15) Armenia versus Azerbaijan Owing to Armenia's launching of a new attack in its war with Azerbaijan over disputed Nagorno-Karabackh, the UN Security Council demanded the former Soviet republic cease its offensive. The Council on April 7, 1993, also demanded that Armenia give up its captured territory. Armenia forces have overrun 10^ of Azerbaijan trying to secure land routes to Nagorno-Karabackh, an Armenian territory within Azerbaijan. The strategic advantage

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appeared to shift to Azerbaijan, which said its troops stopped an attack on the town of Fizuli near Nagorno-Karabackh. It was Azerbaijan's first claim of victory in a week of fighting. Armenia suffered another setback when its only natural gas pipeline was blown-up. Christian-dominated Armenia has been at war with Muslim Azerbaijan for five years for control of Nagorno-Karabackh. More than 3,000 people have been killed since 1988, the bloodiest conflicts in the former Soviet Union. (16) The Angolan Crisis In an attempt to force a negotiated end to Angola's bloody civil war, the UN banned the sale of fuel and weapons to the U N I T A (National Union's for the Total Independence of Angola) rebel movement. The UN sanctions, levied in a manner so as to slow down Jonas Savimbi's rebel army which has captured almost three quarters of this vast southern African nation, went into effect on Sept. 27, 1993. In the words of a UN official in Luanda, "We certainly hope no stronger measures will be necessary to convince U N I T A that the time has come for negotiations." The UN Security Council has threatened to expel U N I T A representatives from foreign capitals and freeze rebel assets if progress toward peace is not made by Nov. 1, 1993. In retaliation, three UN officials were trapped on Oct. 18, 1993 in the rebelbesieged central Angolan towns of Kuito, where the UN hoped to fly out foreign nationals and distribute food. (Abante Tonite, "UN Officials Detained in Angola," Oct. 19, 1993, p. 3). (17) The Haitian Crisis The UN Security Council voted on October 13, 1993 to impose an oil and arms embargo and freeze the assets of Haiti's military leaders for failure of the latter to adhere to an accord to return exiled President Jean-Bertrand Aristide. Lt. Gen. Raoul Cedras, the chief of Haiti's military, responded that the U N , not his army, violated the accord. The key issue, said Cedras, who helped topple Aristide in Sept., 1991, was an amnesty for those people who might be charged with political crimes committed after the coup against Aristide and before the UNbrokered pact was signed in July, 1993. Aristide decreed an am-

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neety, but Cedras countered parliament has yet to turn it into law. He also said the plan guaranteed that any troops arriving here as part of the UN force must carry only handguns, not the M-16 assault rifles that U.S. medics, engineers, and civil affairs specialists were equipped with. For that matter, a senior UN official said Cedras was making an issue of the M-16s to seek a way out of the international agreement. Whoever is to blame, the 6.5 million residents of this deeply impoverished nation will suffer most from the embargo, and many expected it to come down to that. Note that sanctions were first imposed weeks after the coup. In June 1993, an oil embargo was imposed to increase pressure on military leaders. But it was lifted in late August after Cedras agreed to the UN plan. The U.S. led the call for reimposing sanctions against Haiti since armed toughs backed by the military blocked the landing of UN forces in midOctober or 1993. U.S. Pres. Bill Clinton, for his part, said the Haitian military broke the terms of the agreement by resisting the deployment of 194 American and Canadian troops (who were to train Haiti's police and soldiers after these two groups were split up and the former put under civilian control) who had come to Haiti aboard the USS Harlon Country. (Manila Bulletin, "UN Puts Pressure on Haitian Leaders," Oct. 15, 1993, p. 4; Business Star, "Haiti Army Chief Makes Conditional OfTer to Resign," Oct. 15, 1993, p. 18; Business Star, "Security Council OKs New Sanctions vs. Haiti," Oct. 15, 1993, p. 18). The Security Council, meeting in an emergency session on Oct. 16, 1993, unanimously endorsed the deployment of the U.S. warships and called on other nations to help enforce the sanctions if they go into effect. That same day. Canadian Prime Minister Kim Campbell ordered two Canadian destroyers and a supply ship to international waters off Haiti to join U.S. warships in enforcing the UN sanctions. He said the move reflects Canada's "determination to see democratic government restored in Haiti." (Manila Standard, "Last UN Peace Monitors Abandon Haiti," Oct. 18, 1993, p. 16). — oOo —

Chapter 15 A BRIEF HISTORY OF PUBLIC INTERNATIONAL LAW

INTRODUCTION The history of Public International Law may be divided into three periods: Ancient, Medieval, and Modern. The Modern Era may, in turn, be subdivided into several stages. ANCIENT INTERNATIONAL LAW Ancient political communities developed certain usages in their mutual intercourse; treaty-making and treaty-breaking; the pursuit of commerce; and the rules of war. The Jews were brutal and ruthless in the battlefield. In contrast the Hindus, in the Indian Code of Manu, urged humaneness in the conduct of war (the use of poisoned weapons was, in fact, prohibited). The ancient Greek city-States developed the "Customs of the Hellenes" based on natural law principles and interstate agreements. Resident aliens (particularly the "Metokoi") were accorded not only hospitality but also full civil protection. They had a "proxenus" or consul to represent their interests. Diplomatic immunities were recognized. Even the right of sanctuary or asylum came to be presumed. In ancient Rome, the "jus gentium" regulated the conduct of all who were not Roman citizens; the "prealor peregrinus" settled legal disputes where aliens were involved; the College of Fetials negotiated treaties and decided questions of war.'

'See Wilson and Tucker, International Law, pp. 15-16; Fenwick, International Law, pp. 3-33.

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MEDIEVAL INTERNATIONAL LAW Four (4) interesting developments took place: (1) the strengthening of the Church [settlement of disputes b y the Pope; growth of arbitration; appointment of church envoyB ("legati") and papal ambassadors ("apocrisiari" or "nuncios"); emergence of full diplomatic practices] (2) humanization of war and elimination of brutalities insofar as was practicable (3)

formulation of certain Codes:

(a) Amalfitan Tables — contained the laws of the sea in the 11th century (b) the Law Merchant — maritime rules administered by mercantile courts (c) the Laws of Oleron — which later formed the basis of the "Black Book of the Admiralty" (d) the Laws of Wisby — contained the maritime law of the Baltic States ( e ) the Consolato del Mare — the recognized maritime law of Southern Europe and the Mediterranean (4) the growing influence of St. Thomas Aquinas, who laid down the requisites for a just war: (a) the authority of the prince to wage the war (auctoritas principis) (b) the existence of a just cause (justa causa) (c)

the intent to do good (recta intentio)

( N O T E : The Crusades were considered just and legitimate wars). 2

MODERN INTERNATIONAL LAW Modern International Law has had the following stages: (1) from the discovery of America (1492) to the Peace of Westphalia (1648) 'See Wilson and Tucker, op. cil., pp. 19-20.

A BRIEF HISTORY OF PUBLIC I N T E R N A T I O N A L LAW

42) from the Peace of Westphalia (1648) to the Peace of Utrecht (1713) (3) from the Peace of Utrecht (1713) Lo the Congress of Vienna (1815) (4) from the Congress of Vienna (1815) to the start of World War 1(1914) (5) from the start of World War 1(1914) to the start of World War II (1938) (6)

from the start of World War II (1938) to the present.

THE FIRST STAGE (1492-1648) With the discovery of America in 1492, Spain, Portugal, England and France rose to international prominence. Church influence was diminished. More ambassadors were appointed. Privateering (the taking of an enemy ship not for the privateer's country but for his own profit, under the authority of his State given in the form of "letters of marque") became the fashion of the day. Writers in International Law and the related principles emerged. Among the most notable were: (1) Nicolo Macchiaveli (Italian) — he surveyed the ruthless tricks of sovereigns in preserving powers in the books "The Prince" and the "Art of War") (2) Jean Bodin (French) — (he stressed the fact that within the territorial boundaries of a State, the sovereignty of the State is absolute, perpetual, unqualified, and indivisible). (3) Francisco de Vitoria (Spanish) — often referred to by Spaniards as the "Father of International Law," he advocated freedom of maritime commerce) (4) Baltazar Ayala (Spanish) — (he said that even between the belligerents in a war, there ought to be good faith) (5) Alberico Gentili (Italian) — (he gave the opinion that a peace treaty cannot be annulled on the ground of fear or duress; he also formulated the doctrine of "rebus sic stantibus") (6) Hugo Grotius (Dutch) — [to most publicists, he is the true "Father or Founder of International Law." His outstanding contribution is his "De Jure Belli ac Paris" (The Law of War and

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Peace) where he etreBBed moderation in war (the "tern per a men La" of warfare); freedom of the eeaB and the theory and nature of diplomatic privileges and immunities). THE SECOND STAGE (1648-1713) The Thirty Years War (1616-1648) culminated in the Treaty of Westphalia of 1648. The treaty recognized the independence of certain States, allowed them to enter into treaties, and saw the need for an international organization to prevent war. French became the language in diplomatic affairs. Among the effective writers of the period were: (1) Samuel Pufendorf (German) — (who maintained that international law was essentially based on the natural moral law) (2) Leibnitz (German) — (who rebelled against the theoretical approach of Pufendorf and insisted on the scientific study instead of treaties and diplomatic documents. He wrote "Codex Juris Gentium Diplomaticus"). 1

THE THIRD STAGE (1713-1615) The Peace of Utrecht of 1713 ended the War of the Spanish Succession. In the treaty the signatories realized the need for a "Balance of Power." The French Revolution and the American Revolution stressed the dignity of man. Treaties were held in higher respect; arbitration gained new prominence because of the Jay Treaty which catted for a continuing Board of Arbitration to settle Anglo-American disputes; the concepts of contraband and angary were redefined. Among the publicists of the period were: (1) Cornelius Van Brynkershoek (Dutch lawyer and jurist) — (who brought forth the doctrine of territorial waters and emphasized the importance of public maritime law) (2) Christian de Wolffe — (a German philosopher who wrote on the fundamental rights of States) (3) Emmerich de Vattel (Swiss) — (who discussed the equality of States).*

s

See Encyclopedia Britannica. Vol. 12, p. 525. *See Encyclopedia Britannica. Vol. 12, p. 524.

A BRIEF HISTORY OF PUBLIC INTERNATIONAL LAW

THE FOURTH STAGE (1815-1014) ThiB period began with the Congress of Vienna in 1815, with its doctrine of "legitimacy" and the formation of the Holy and Quadruple Alliances. The Monroe Doctrine was formulated. Switzerland was neutralized. The Protocol of Aachen (1818) ranked diplomatic officers. The Declaration of Paris of 1856 (also known as the Declaration of Maritime Law) gave new rules on neutrals and blockades. China was beset with "most-favored-nation" clauses in favor of foreign States. Japan was again "opened" to the world. Among the authors were: (1) John Austin — who believed that international law is law only insofar as it has been incorporated into the municipal law of a State; (2)

Henry Wheaton — who dealt with diplomatic suits;

(3) F. L. Oppenheim — who wrote a spectacular treatise on international law. This period also witnessed two (2) Conferences at the Hague: (1) The First Conference (1899) — dealt principally with disarmament, arbitration, and rules of warfare. (2) The Second Conference (1907) — agreed on the requirements before war would begin, and, inter alia, the Porter Convention. THE FIFTH STAGE (1914-1938) This period starts with the first World War, its culmination under the Treaty of Versailles (June 28, 1919) and the establishment of the ill-fated League of Nations which eventually failed to slop another World War. The Locarno Pact (1925) agreed on the preservation of the status quo (of peace) and the inviolability of the German-French and the German-Belgian frontiers. The BriandKellogg Pact (1927) renounced for France and America war as an instrument of national policy. Eventually 61 countries adhered to the principle. The Permanent Court of International Justice was established. Meantime, Italy became enmeshed in Fascism, Germany in Nazism, and Russia, in Communism. The time was ripe for World War I I .

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THE SIXTH STAGE (1938 — to the present) During World War I I , countless rules of war were violated. This last period has witnessed the formulation of the Atlantic Charter (1941); the use of the atom bomb (1944); the establishment of the United Nations Organization and the International Court of Justice (1945); the use of the UN international forces to solve crises (the U N E F and the O N U C ) ; the explosion of hydrogen,, uranium, nuclear bombs (including megaton bombs); the experiment with "summit conferences"; Conventions on the Laws of the Sea; disarmament talks; and flight into outer space. From the end of the last war there have been several crises each of which could have started World War I I I (The Palestine Question between the Jews and the Arabs; the Indonesian Revolt against the Dutch; the conflict between India and Pakistan; the Korean Intervention; the Rape of Hungary; the Crisis in the Middle East; the Belgian Congo — where "apartheid" or racial discrimination and unpreparedness for self-government have been vital factors; the dispute over the Suez Canal). In the last decade, we had the crisis over Iran and the American hostages and the threatened rupture of diplomatic relations between the two countries; the Russian intervention in Afghanistan, the long drawn-out war between Iran and Iraq, the clashes between Russian and Chinese troops on the border and Cambodia; the never-ending energy crunch; the communist boycott of the 1984 Olympic Games at Los Angeles; the wars between Israel and the Palestine Liberation Organization, between the Christians and the Muslims in Lebanon, the rebellions in Chile, Nicaragua, Sudan, and the "hot domestic situation" in Brazil. In this age of the 90s, we have had the catastrophic Iraq versus the Allies (led by the U.S.) the civil strife in Yugoslavia, BosniaHercegovina), the famine conflict in Somalia, the North Korean intransigence on the non-nuclear proliferation treaty or N P T issue, flashpoints in the South China Sea, the Russian struggle to imbibe democracy: Boris Yeltsin against the Communist hardliners, etc. In the meantime, the Philippines has joined the SEATO (Southeast Asia Treaty Organization), the A S A (Association of Southeast Asia), and the A S E A N (Association of Southeast Asian Nations — Philippines, Malaysia, Thailand, Indonesia, Singapore, and Brunei — formed in 1967 for cultural, social and economic collaboration.) For many years, we tried to pursue our Sabah (North Borneo) claim, but it would seem that we have already abandoned or

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renounced the claim (except insofar as the proprietary shares of certain Muslim heirs are concerned). We will now have a detailed backgrounder on the matter. THE PHILIPPINE CLAIM TO A PART OF NORTH BORNEO (SABAH) The pertinent facts of our claim to a part of North Borneo would seem to be the following: (1)

5

The Sultan of Brunei, owner of North Borneo, ceded a

portion thereof to the Sultan of Sulu, as a gesture of gratitude for the letter's help in suppressing a revolt in the territories of the former. This was in 1704. (2)

Said portion was in turn leased (according to our gov6

ernment's interpretation) in 1878 by the Sulu Sultan to Baron de Overbeck,

an Austrian, for a stipulated annual rent of 5,000 7

Malayan dollars (later increased to 5,300 Malayan dollars under the confirmatory deed of April 22, 1903). Britain, however, consid-

s

North Borneo used to be called "Sabah." *Il is said thai the Sulu SulLan was then preoccupied with a struggle against the Spanish forces in the Sulu Archipelago. The lease contract describes the territory in terms of natural boundaries; ". . . all the territories and lands being tributary to us on the mainland of the island of North Borneo commencing from the Pandaasan River on the NW coast and extending along the whole east coast as far as the Sibuco River in the South and comprising among others the States of Paitan, Sugut, Bangaya, Labuk, Sandakan, Kinabatangan, Muniang and all the other territories and States to the southward thereof bordering on Darvel Bay and as far as the Sibuco River with all the islands within 3 marine leagues of the coast." It is evident that this 187S contract covered only portions of British North Borneo, not all of it. Host of the portions not included had been previously ceded by the Sultan of Brunei by the contract of December 29. 1677 to Baron de Overbeck and to Alfred Dent. As a matter of fact, if we believe a report made by then acting British Consul General Treacher on January 22, 1679 (the same day the Sultan or Sulu signed the lease contract with Baron de Overbeck), even the lands leased by the Sultan of Sulu to Overbeck had already been previously ceded by the Sultan of Brunei to Overbeck and Dent, and the only reason Overbeck had to negotiate with the Sulu Sultan was because the latter was in actual possession of said lands or at least some of the territories involved. (See tetter of Treacher of January 22, 1878, pp. 20-23, compilation of documents, Department of Foreign Affairs, Philippine Government; Senator Loreiuo Sumulong, "Rejoinder on North Borneo," Manila Chronicle. April 18, 1963). "This amount ia the approximate equivalent of 1,600 U.S. dollars.

INTERNATIONAL L A W A N D WORLD P O U T K S

ere the agreement a "cession in perpetuity," and the yearly payment as "cession monies." (3)

Baron de Overbeck sold all his rights to the lease con-

tract to an English merchant named Alfred Dent, who later established a company known as the British North Borneo Company. This Company assumed Dent's rights and obligations over the 8

contract. Subsequently, despite vigorous protests on the part of the Dutch and Spanish governments, the British government 9

awarded the Company a Royal Charter in 1881. (4)

10

Although in a sense. North Borneo had been since 1888

a British protectorate," and although after liberation (from the Japanese) in 1946, a British military administration unit ran the government,

13

it was not until July 10, 1946 the the British North

Borneo Chartered Company transferred all its nights and obligations under the lease to the British Crown.

13

When the British

T h e protests, caused by an apparent usurpation of sovereignty by Britain, were answered by the British government's recognition of continuing sovereignty over the territories by the Sultan of Sulu and avowal that the British North Borneo Company was merely an administering authority. (See Salonga.TAe British North Borneo Question: a Rejoinder, The Sunday Chronicle. March 31, 1963). ^Corporations possessed of delegated political powers assume a quasi-international status. Certain powers or sovereignty, including the power to govern, are generally given by their home governments. (See Wilson and Tucker, International Law., pp. 64-65). Salonga, op. cit. "Lorenzo Sumulong, op. cit. A "protectorate" is a dependent State under the authority of the "protector" State. It possesses all competence in international affairs which it has nol expressly and specifically waived or renounced. (See Wilson and Tucker, op. cit.. pp. 62-63). "Gordon Wells, Jesselton Comes of Age. The Asia Magazine, April 28. 1963, p. 14. "While Gordon Wells, supra, gives July 15, 1946 as the date, both Senator Lorenzo Sumulong and Congressman Jovito Snlonga agree that the correct date is July 10, 1946. Senator Sumulong adds that although "the United Nations Charter was signed in San Francisco in 1945, it was only in 1947 that the Committee on Information from Non-Self-Governing Territories met and prescribed the standard form to be followed by the administering powers in the preparation of their annual report of conditions in the territories administered by them: consequently, it was only in 1948 that the administering powers actually began to send in annual reports of their administration; . . . from that year onwards Britain has been sending annual reports declaring herself to be the colonial power administering North Borneo as a British colony without any protest from the Philippine delegation until December of 1982 when the latter far the first time entered a reservation contesting British sovereignty o w North Borneo." (Lorenzo Sumulong, op. cit.) l0

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Colonial Office accepted the responsibility of running the small war-scarred country, the Company was dissolved and the youngest British "colony" was born." (5) Shortly after British assertion of sovereignty over North Borneo, our Government acted on two fronts: firstly, the cession order was denounced by Harrisons as a "unilateral act in violation of legal rights," secondly, three Congressmen" sponsored a resolution "urging the formal institution" of our claim to a part of North Borneo. After a serious Btudy, the House of Representatives passed in 1962 a unanimous resolution urging the Philippine President to recover the territories "consistent with international law and procedure." 15

16

18

19

(6) Sometime in September, 1962, a deed of cession was reportedly entered into between the new Sultan of Sulu (Jamalul Kiram) and the Philippine President. The deed transferred sovereignty (or the claim of sovereignty) over the disputed portions in North Borneo from the Sultanate of Sulu to the Philippine Government. Having thus acquired alt the rights a n d interests of the Sulu Sultan, and acting on the unanimous Congressional resolution hereinabove adverted to, "the Republic of the Philippines, 20

21

"Cordon Wella, loc. eit. Be il noted that the July 10, 1946 transfer took place 6 days after our Philippine Independence in 1946. Congressman Salongn calls the "transfer as one "rather opportunely Tiled." (Salonga, op. cit.) """Francis Burton Harrison, former American Governor-General or the Philippines, was acting as special adviser to the Philippine Government on foreign affairs at the time he made the denunciation. 'Movito R. Salonga, loc. cit. Congressmen Diosdado Macapagal, Arscnio Lac son. and Arturo Tolentino. '"Salonga, loc. cit. "ibid. ™Lorenw> Sumulong, toe. cit. ''Senator Sumulong vigorously questions this deed or cession to the Philippine government on two vital points: firstly, he claims that the heir of the original Sulu Sultan have thru the years lost whatever original rights of sovereignty they previously had: secondly, he considers the deed of cessions a treaty which should he subject to Senate approval or ratification. On the first point, he says: "By its very nature, sovereignty can be claimed only by sovereign and independent States, nol by individuals. An individual may own property in • foreign State, but his private ownership over that property is subject to the sovereignty of the foreign State over the same property. l7

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thru the President, filed the claim" to the disputed North Borneo portions. "It follows that heirs of Sultan Jamalul Kiram, as private individuals and as Filipino citizens owing allegiance and subject to the sovereignty of the Republic of the Philippines, cannot claim sovereignty over North Borneo. They must show that after the death of Sultan Jamalul Kiram in 1936, the Sultanate of Sulu continued to exist as a sovereign and independent State managing the internal and external affairs of North Borneo until September of 1962 when the said Sultanate ceded such sovereignty over North Borneo to the Republic of the Philippines. "Let us see how the heirs of Sultan Jamalul Kiram comported themselves after the letter's death in 1936. "On September 20, 1936, President Quezon issued a memorandum regarding the administration of affairs in Mindanao. President Quezon served notice that he would not allow any sultan or datu to exercise powers of sovereignty or government in Mindanao and in the Sulu Archipelago. Princess Dayangdayang, Princess Tarhata Kiram, Esmail Kiram, and the other heirs of Jamalul Kiram decided to abide by the directive of Quezon. They did not contend that the Sultanate or Sulu continued to exist. They did not invoke the so-called royal families in Sulu to elect and proclaim a new Sultan of Sulu. What they did instead was to file a civil suit in the High Court of the State of North Borneo, then presided over by Chief Justice Macaakie, in order to obtain a declaration from that Court that as the private heirs of Sultan Jamalul Kiram, they were entitled to receive the yearly payment or 5000 Malayan dollars stipulated in the 1876 contract of the Sultan of Sulu and increased to 5,300 Malayan dollars under a confirmatory deed executed on April 22, 1903. "After due hearing, Chief Justice Macaskie on December 18, 1939 rendered the decision of the Court holding that the 1878 contract of the Sultan of Sulu was a cession in perpetuity; that the only right to the yearly payment; that the Philippine Government was the successor in sovereignty to the Sultanate or Sulu which had passed out of existence; that as such successor in sovereignty, the Philippine court having declared the plaintiffs to be the private heirs of the said Sultan entitled to the yearly payment, the Philippine Government must be deemed to have waived its right to the yearly payments in favor of the private heirs of the late Sultan Jamalul Kiram. "Having accepted the said decision which declared the 1878 contract to be a cession in perpetuity, and having issued receipts in writing acknowledging the yearly payments to be cession monies, how can they now say that the said contract was a mere lease? "Having accepted the said decision which declared that the only right reserved to the Sultan of Sulu, his heirs or successors was the right to receive the yearly payment, how can they now contend that they had the right to terminate the 187S contract which they now alleged to be a mere lease and demand for the restoration of North Borneo? "Esmail Kiram having accepted the said decision which declared him to be a mere private heir of Sultan Jamalul Kiram entitled Ut 1/24 of the yearly payment, how could he in September of 1962 claim to be the new Sultan of Sulu and as such empowered to represent the Sultanate of Sulu in ceding North Borneo to the Republic of the Philippines?"

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(7) After Borne time, the British Government agreed to talk with Philippine representatives in London regarding our claim to sovereignty over the controverted North Borneo territories. The London talks then took place with the Philippine panel headed by 22

On the second point, Senator Sumulong says: "It wae the heirs of Sultan Jamalul Kiram who thru their lawyer wrote in February or 1962 to the Department of Foreign AfTairs offering to transfer their claim of sovereignty over North Borneo U> the Republic of the Philippines, reserving to themselves their proprietary claims. This offer was agreed to by President Macapagal and so, to give semblance of legality to the transfer of sovereignty, sometime in September of 1962, it was proclaimed that the Sultanate of Sulu still existed with Esmail Kiram as the new Sultan of Sulu and as such he signed the deed of cession transferring the claim of sovereignty to North Borneo to the Republic of the Philippines. "In other words, it was made to appear that the Sultanate or Sulu, as an existing sovereign state transferred its sovereignty to North Borneo to another sovereign State, the Republic of the Philippines. It was designed to produce the effect of a treaty of cession, just like the Treaty of Paris or December 10. 1896. whereby Spain ceded the Philippines to the United States. "Can the President or the Philippines enter into such treaty or cession without submitting it for ratification by the Philippine Senate? It is clear that under our Constitution such a treaty cannot take elTect until ratified by the necessary 2/3 vote in the Senate . . . If the Treaty of Paris whereby Spain ceded the Philippines to the United Stales had to be ratified by the U.S. Senate, how can President Macapagal dispense with the constitutional requirement of Senate ratification for this cession or North Borneo by the Sultanate or Sulu to the Republic or the Philippines.' (Sumulong, loc. cit.). Congressman Salonga answers Senator Sumulong as follows: "Sovereignly as such was nol in issue in the case referred lo 4a civil suit in the High Court of the State of Borneo); . . . even if it had been put in issue that the Court, under Internationa] Law, did not have the competence to rule on the question or sovereignty; ... whatever decision that British court may have promulgated does not bind the Republic of the Philippines . . . "Finally, the Senator, . . . argues that the transfer of rights between the Sultanate of Sulu and the Republic of the Philippines should have been in the form of a treaty and submitted to Senate ratification. The British, it may be well lo say, have not yet come up with this argument of the distinguished Senator. Let them put it forward; we shall deal with it. In the meanwhile, a reading by the Senator of various transfers in International Law would be helpful, indeed." (Salonga, More on North Borneo, The Sunday Chronicle, April 21, 1963.) S e n a Lor Sumulong in this connection says: =

"When the British agreed to talk with us in London, il was hailed as a diplomatic victory of the administration, when in truth and in Tact, it was due to U.S. mediation and intercession — as President Macapagal himselT admitted — that the British agreed. (Sumulong, loc. cit.)

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then Vice-President Emmanuel Pelaez (concurrent, Secretary of Foreign Affairs). The controversy remained unsolved. (8) With the establishment of the Federation of Malaysia (or simply, Malaysia), and our recognition of the country, it would seem that today, the best solution may be for the World Court to take cognizance of the case (but for this to take place, Malaysia must first agree). SOME LEGAL QUESTIONS ON OUR SABAH CLAIM Introduction An "INTER-UNIVERSITY Committee on the Sabah Claim," composed of professors of international law and political science in various colleges and universities, and of expert political scientists, has quietly studied the academic and practical aspects of our claim to a part of North Borneo popularly called Sabah. Several subcommittees have been formed, and one of them is the sub-committee on legal questions that must be sufficiently answered if our claim to Sabah is to stand scrutiny before a court of law. These questions are divided into four (4) general categories, to wit: (1) The legal interpretation and effects of the several deeds, documents and contracts involving Sabah [The question presented under this category are: a) What is the legal proof that the Sultan of Sulu obtained Sabah from the Sultan of Brunei thru cession? If indeed there was a cession, what was ceded — dominion or sovereignty or both? Was Sulu a State at the time? On what date did the cession occur — in 1650, 1704, 1836, 1842, 1878, or some other date? — and what were the jurisdiction and circumstances of this acquisition by the Sultan of Sulu — rebellion in the territories of Brunei, a war of succession, an act of capitulation? (Questions raised by Ghazzali, head of the Malaysian Panel in the Bangkok Talks); b) What is the legal nature of the agreement in 1878 between the Sulu Sultan and Overbeck and Dent? Was this a lease or a cession, and in either case, what was involved — dominion, sovereignty, or both? What is the legal effect of the alleged cession of Sabah by the Sultan of Brunei to Overbeck and Dent even before the Sulu Sultan of Sulu despite the fact that allegedly, Overbeck and Dent had already previously negotiated with the Sultan of Brunei?; c) Did the Sulu Sultan really have any sovereignty over the territory in 1878? If so, what were his acts of sovereignty? Considering the fact that according to certain documents, sovereignty at that time was instead in the Sultan of Brunei (a Sov-

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ereignty that said Brunei Sultan conveyed to Overbeck and Dent prior to 1878), what,is the Philippine proof that the Sultan of Brunei did not have any sovereignty over the particular territory on or before that date? (Questions raised by Ghazzali); d) What were the legal effects of the transfer of rights, if any, from Overbeck to Dent; from Dent to the British North Borneo Company, from the Company to the British Crown; and from the British Crown to Malaysia? What is the legal effect of the British Government's recognition of the Sultan of Sulu's sovereignty over Sabah — despite the formation of the British North Borneo? Upon the other hand, what are the effects of certain British Acts indicative of the repudiation of the lease and indicative of Britain's exercise of sovereignty — and the effects of virtual acquiescence thereto by Spain, the United States, and perhaps even by the Philippines itself?; e) What are the significant differences between the Sulu and the Spanish versions of the Treaty of 1878 (Treaty of Capitulation by Sulu with Spain in 1878) considering the fact that the Sulu version did not transfer any of the dependencies of Sulu to Spain (assuming that the Sulu Sultan really had authority over Sabah)? What is the significance of the Carpenter Agreement of 1915 and the "Interpretative Letter" thereto? Did the U.S., by said "letter" legally recognize the continuing existence of Sabah as belonging to the Sultan of Sulu? (Questions raised by Ghazzali). In this connection, what is the significance of the Spanish Protocol of 1885, removing Borneo from her possession? What are the legal implications of the Protectorate Agreement of 1888 by the British Crown?; f) Assuming the authenticity of the documents — 1. of April 24, 1962, 2. of Sept. 11, 1962, and 3. of Sept. 12, 1962 which of them, in the face of certain contradictions, are basic documents and which are not? (Questions raised by Ghazzali); g) What are the legal implications of said documents? What were transferred by the Sultan of Sulu to the Philippine Government in 1962 — sovereignty, dominion, both or neither? h) What are the legal effects of the Instruments of January 1, 1968, executed by the heirs of Sultan Jamalul Kiram II regarding their proprietary rights in North Borneo?); (2) The problem of sovereignty viewed in light of our Constitution, our history of liberation, and the commitments of the present Philippine Government and its predecessors. [The questions propounded in this regard are: a) What is the effect of the Article on National Territory (in our Constitution) on our right to acquire territories? What was the intent of the delegates to the Constitutional Convention (later to be called the Constitutional Commission) on the matter?; b) Can the Executive Department of our

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Government by itself, without Senate concurrence, enlarge our national territory?; c) Assuming that the Senate concurs in the actuations of the Executive Department — would a constitutional amendment or plebiscite still be required? Otherwise stated, in the Philippines, what is the official authority or organ that iB empowered (whether expressly or implicitly) by the Constitution to acquire territory? May a private individual or a group of individuals lawfully annex territory in favor of the Philippines? Is the act of acquiring territory executive, legislative, or judicial in character?; d) Was the Sultanate of Sulu still a State in 1962 (assuming that it was once a State) such that it could transfer sovereignty? If it was a State, how could it exist as such within the purview of our Constitution? If it was not a State, may a private citizen or some private citizens of one State be regarded as the sovereign of some other place or State — either inside or outside the State of citizenship? Legally assuming the existence of the Sulu Sultanate, was the Sultan of Sulu also the Sultan of Sabah? If so, why was not the cession in favor of the Philippine Government made in the name of the Sultan of Sabah? What is the effect of Spanish, American, and the Philippine Republic's sovereignty over Sulu?; e) Legally who is the present Sultan of Sulu: Whom did he succeed? What acts of sovereignty has he carried out? What complaints or protests has he made to the British authorities on their sovereign possession and occupation of North Borneo? How did any Sultan come to occupy a Sultanate which had been officially ended by the then Philippine President, as an institution upon the Sultan death in 1936? How can the Philippine claim be founded on documents of apparent inherent invalidity? (Questions raised by Ghazzali); ft Why is it that from 1915, the date of the Carpenter Agreement, to 1936, 21 years later when he died, not one of the Sultan's acts in relation to Sabah can be regarded as consistent with his being a sovereign ruler of the territory? What are the implications of the many successive occasions when he directly or thru attorneys asked again and again for increase of his compensation money? Are such acts consistent with the claim to sovereignty? (Questions raised by Ghazzali); g) What is the legal effect of the repudiation by the Sultanate of Sulu of the cession order, and the termination of the lease contract (November 25, 1957)?; h) In view of the proclamation of November 25,1957 by which the Sultan for himself and as representative of the heirs purported to terminate the "lease" of 1878, what is the effect of his and the other heirs continuing lo receive annual compensation until the end of 1960? With regard to the purported reestablish men t of sovereignty in himself by thai

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proclamation for the reason that the British annexation of 1946 was a breach of the 1878 agreement, how could there be a legal breach when all that the 1878 agreement prohibited was any transfer by the Company of its rights without the consent of England, and not a transfer without the Sultan's consent — that iB to say — how could there be a breach when a right to give or to deny consent was not reserved to the Sultan? (Questions raised by Ghazzali); i) What is the legal effect of our not making a reservation about Sabah (since 1946 when Britain first began giving annual reports regarding Sabah, a territory it was administering) — not until December, 1962 (16 years later)? How can was explain the silence of the Sulu Sultan and the Philippine Government thru our Secretary of Foreign Affairs? (Questions raised by Ghazzali); jf What is the legal effect of our not tiling the case before the International Court of Justice at the time when Britain still had control over Sabah (before the Federation of Malaysia was established) — as soon as the Anglo-Philippine talks broke down in February, 1963: (Britain at that time could not validly resist the jurisdiction of the World Court). (Questions raised by Ghazzali); k) Assuming that our claim was valid once upon a time, has its validity in any way been affected by laches, abandonment, or prescription? What is the significance of Republic Act 3046's original and nonreservation about Sabah? What is the effect of the present reservation as to Sabah — as stated in the same Act as amended recently?; I) What is the legal effect of our Government's desire to sue Malaysia without also suing Indonesia when the portion of the territory involved are now respectively in the possession of Malaysia and Indonesia? (Questions raised by Ghazzali]]; (3) The problem of sovereignty viewed from the angles of modern Political Science, International Law, and the United Nations Charter [The question under this category are: a) Is our claim to Sabah consistent with the UN Charter, any international agreement we may have enabled into, the Manila Accord and the Manila Declaration of 1963?; b) In international and political law and science, which principle is of more significance — the upholding of a State's sovereignty or the principle of self determination? How can each be realized: In whom does sovereignty lie?; c) Has there been national self-determination in Sabah?; d) What is the effect of our Government's promise to abide by the findings of U Thant? (Questions raised by Ghazzali); e) Was our recognition of Malaysia a recognition or a State or of a government? With our recognition of Malaysia, may the Philippines be said to be in estoppel?; f) What is the effect of the existence today within the Malaysian Federation of the Sultan

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of Sabah? What iB the extent of autonomy of Sabah within the Federation?; the extent of Malaysian protection there? If other members can easily secede (like Singapore), can Sabah likewise secede? What are the rights of the Sabahans relative to Sabah and Malaysia?; g) What is the legal effect or significance of Malaysia's refusal to have the matter brought before the World Court?); and (4) The legal problems that may arise should the Philippine claim be recognized. [The problems presented hereunder follow: a) Assuming a World Court decision in our favor, how do we enforce it?; b) What would be the status of Sabah and the Sabahans as part of the Republic of the Philippines? What would be the citizenship of the Sabahans, especially those of the Chinese (blood) community?; c) What would be the vested rights of the Sabahans as against the proprietary rights of the Kiram heirs?; d) Can the Constitutional Convention of 1971 include Sabah as part of the Philippines and provide for the status of the Sabahans? Should Sabah, thru the Kiram heirs, be represented by delegates to the Convention?; e) What are the legal implications of the Sabah claim relative to any future federation or confederation among Malaysia, Indonesia and the Philippines?; f) What would be the legal effects of outright Philippine annexation of Sabah either by statute or'by overt acts?; and g) What are the possible legal rights of other countries (such as Indonesia or China) to Sabah?| Among the documents involving Sabah, the legal interpretation and study of which are sought under category (1), are the following three deeds or contracts. Document No. 1 RECOGNITION A N D A U T H O R I T Y I N FAVOR OF T H E REPUBLIC OF T H E P H I L I P P I N E S K N O W A L L M E N BY THESE PRESENTS: That we, the living heirs of Sultan Jamalul Kiram, the Sultan of Sulu, hereby declare and make manifest the following: 1. That without prejudice to such proprietary rights as we have, the disposition of which will be subject to a later agreement, we irrevocably recognize, admit, and accept the ultimate sovereignty, title and dominion of the Republic of the Philippines over the following described territory:

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All territories and lands tributary to us on the mainland of the Uland of Borneo, commencing from the Pandassan River on the west, and thence along the whole east coast as far as the Sibuku River on the south, and including all territories, on the Pandassan River and in the coastal area, known as Paitan, Sugut, Banggal, Labuk, Sandakan, Chinabatangan, Mumiang, and all other territories and coastal lands to the south, bordering on Dravel Bay, and as far as the Sibuku River together with all the islands which lie within nine miles from the coast. 2. That we hereby renounce, repudiate, set aside and revoke any instrument, contract, document, or authority that any or all of us may have given in favor of any individual, entity, or association which contravenes or purports to contravene this manifestation of recognition; and 3. That we hereby accept and recognized the absolute, exclusive and unconditional right of the Government of the Republic of the Philippines to initiate, initiate, and prosecute the claim, to the abovedescribed property thru any and by an peaceful and amicable modes of international settlement, including diplomatic negotiations, conciliation, mediation, arbitration. Commission of Inquiry, report to the International Court of Justice or to the United Nations, as the circumstances may warrant, hereby adopting all that said Government may do in accordance with this document of recognition and authority. W I T N E S S OUR HANDS A N D SEAL this 24th day of April, 1962, in the City of Manila, Philippines. (Sgd.) S U L T A N M U H A M M A D ESMAIL K I R A M (Sgd.) DATU RASAMUDA P U N Y U N G A N KIRAM (Sgd.) SITTI RADA K I R A M (Sgd.) PUTLI T A R H A T A K I R A M (Sgd.) P U T L I S A K I N U L I N K I R A M IN THE PRESENCE: (Sgd) (Sgd)

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SUBSCRIBED A N D SWORN to before me this 24th day of April, 1962 at Manila, Philippines, by the following with their respective Residence C e r t i f i c a t e s : S U L T A N M U H A M M A D E S M A I L K I R A M , No. A-0553278, issued at Jolo, Sulu, Jan. 31, 1962; D A T U RASAMUDA P U N Y U N G A N K I R A M , No. A-0553279, issued at Jolo, Sulu, Jan. 30, 1962, SITTI RADA K I R A M , No. A-0553277, issued at Jolo, Sulu, Jan. 30, 1962; P U T L I T A R H A T A K I R A M , No. A ; P U T L I S A K I N U L I N K I R A M , No. A-0586942, issued at Jolo, Sulu, Jan. 13, 1962. (Sgd.) I. B. PAREJA Secretary, House of Representatives Document No. 2 MALACANANG Manila BY T H E PRESIDENT OF T H E P H I L I P P I N E S T O A L L T O W H O M THESE PRESENTS S H A L L COME, GREETINGS: K N O W , Y E , that reposing special trust and confidence in the integrity, prudence and ability of: The Honorable E M M A N U E L PELAEZ Vice President of the Philippines and concurrently Secretary of Foreign Affairs I, DIOSDADO M A C A P A G A L , President of the Philippines, have invested him with full and all manner of power and authority, for and in the name of the Republic of the Philippines, to formally accept for the Republic of the Philippines the cession or transfer of sovereignty over the Territory of North Borneo by His Highness Sultan Muhammad Esmail Kiram, Sultan of Sulu, acting with the advice and authority given by Resolution of August 29,1962, of the Ruma Bechara, in Council assembled. Such Instrument of Cession as may be accepted by the Honorable E M M A N U E L P E L A E Z under the present authority iB to be transmitted to the Philippines for further action in accordance with the Constitution and laws of the Republic of the Philippines.

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IN T E S T I M O N Y WHEREOF, I have hereunto set my hand and caused the Seal of the Republic of the Philippines lo be affixed. Done in the City of Manila, Philippines, this 11th day of September, in the year of Our Lord, nineteen hundred and sixty-two, and of the Independence of the Philippines, the seventeenth. (Sgd.) DIOSDADO MACAPAGAL By the President: (Sgd.) SALVADOR MARINO Executive Secretary Document No.3 I N S T R U M E N T OF CESSION OF THE TERRITORY OF NORTH BORNEO BY HIS HIGHNESS S U L T A N M U H A M M A D ESMAIL KIRAM, SULTAN OF SULU, ACTING WITH THE ADVICE A N D AUTHORITY OF THE RUMA BECHARA, TO THE REPUBLIC OF THE PHILD?PINES WHEREAS, His Highness Sultan Muhammad Esmail Kiram, is lawfully the head of the Sultanate of Sulu; WHEREAS, for the last two hundred and more years the sovereignty, title and dominion over the Territory of North Borneo have been been vested in the Sultanate of Sulu; WHEREAS, on January 22,1878 Sultan Mohamet Jama! A l Alam (or Sultan Jamalul Agham), then the head of the Sultanate of Sulu, signed a deed leasing the Territory of North Borneo to Gustavus Baron de Overbeck, and Alfred Dent, representatives of a British company, for a consideration of Five Thousand Dollars payable annually to him or to his heirs and successors; WHEREAS, on June 7, 1936, Sultan Jamalul Kiram, who had succeeded lo the Sultanate in the year 1894, died without any children but survived by certain heirs; WHEREAS, in the year 1939, Dayang Dayang Hadji Piandao, Putli Tarhata Kiram, Putli Sakinur in Kiram, Esmail Kiram, Datu Punjungan Kiram, Sitti Marian Kiram, Sitti

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Rada Kiram, Sitti Putli Jahara Kiram, and Mora Napaa, claiming to be the heirs of the late Sultan Jamalul Kiram entitled to receive the annual rental aforementioned, brought a suit before the High Court of the State of North Borneo (Civil Suit No. 16/39, entitled "Dayang Dayang Hadji Piandao Kiram (0 of Jolo, Philippines and 8 others vs. The Government of North Borneo and Others") for the purpose of having them declared the heirs and successors of the Sultan entitled to receive said annual rental; W H E R E A S , on December 19, 1939. the High Court of North Borneo rendered a decision declaring Dayang Dayang Hadji Piandao Putli Tarhata Kiram, Putli Sakinur in Kiram, Esmail Kiram, Datu Punjungan Kiram, Sitti Mariam Kiram, Sitti Rada Kiram, Sitti Putli Jahara Kiram and Mora Napsa as the "private heirs" entitled to receive what the said court called "cession money" but which the heirs called "rental"; W H E R E A S , in the same decision of December 19, 1939, the High Court of North Borneo stated that "the successor in Sovereignty of the Sultan are the Government of the Philippine Islands"; WHEREAS, on June 20, 1946, the British company in whose representation Gustavus Baron de Overbeck and Alfred Dent obtained the lease aforementioned, transferred to the British Government its rights and interests over the Territory of North Borneo; W H E R E A S , on July 10, 1946, the Territory or North Borneo was annexed as a Crown Colony but inspite of the fact that the British Government was aware of the decision of the High Court of North Borneo of December 19. 1939. declaring that the Government of the Philippines was the successor in sovereignty of the Sultan and that there were private heirs entitled to receive the rental or "cession money," neither the Philippine Government nor the private heirs were notified of the annexation. W H E R E A S , on November 25, 1957, His Highness Sultan Muhammad Esmail Kiram, Sultan of Sulu, issued a Proclamation declaring the lease of January 22, 1878 terminated as of January 22, 1958, and declaring further that after said date all the leased were deemed restituted to the Sultan of Sulu;

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WHEREAS, in a communication dated November 25, 1957, addressed to "The Successors in Interest of GustavuB de Overbeck; Alfred Dent; and the British North Borneo Company," notice was given of the decision of the Sultanate of Sulu to terminate the lease effective January 22, 1958, copies of the Proclamation and Notice of Termination having been sent to the: British North Borneo Company, Jesselton, North Borneo; the British North Borneo Company, London, England; the British Embassy, Manila; the Minister of Foreign Affairs, London, England; the Secretary of Foreign Affairs, Manila; and the Secretary-General, United Nations, New York City; WHEREAS, on April 24, 1962, the living heirs of the late Sultan Jamalul Kiram signed an instrument whereby they irrevocably recognized, admitted and accepted the ultimate sovereignty, title and dominion of the Republic of the Philippines over the Territory of North Borneo, without prejudice to such proprietary rights as the heirs of the Sultan Jamalul Kiram may have; WHEREAS, on August 29, 1962, the Ruma Bechara, in Council assembled, gave its advice and authority to His Highness Sultan Muhammad Email Kiram, Sultan of Sulu, to ratify and confirm the cession and transfer of sovereignty, title and dominion over the Territory of North Borneo to the Republic of the Philippines as stipulated in the Instrument of April 24, 1962; WHEREAS, His Highness Sultan Muhammad Esmail Kiram, Sultan of Sulu, has determined, that, in the interests of the inhabitants of the Territory of North Borneo, the sovereignty, title to the Republic of the Philippines; W H E R E A S , the Honorable Emmanuel Pelaez, Vice President of the Philippines and concurrently Secretary of Foreign Affairs, has been authorized by His Excellency, the President of the Philippines to accept the said cession on behalf of the Republic of the Philippines. N O W THESE PRESENTS WITNESS — 1. The Territory of North Borneo, and the full sovereignty, title and dominion over the territory, are hereby ceded by Hin Highness, Sultan Muhammad Esmail Kiram, Sultan

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of Sulu, acting with the advice and authority of the Ruma Bechara, to the Republic of the Philippines, fully confirming and ratifying the stipulations in the Instrument of April 24, 1962. 2. The cession is hereby formally accepted on behalf of the Republic of the Philippines by the Honorable Emmanuel Pelaez, Vice President of the Philippines and concurrently Secretary of Foreign Affairs. I N W I T N E S S W H E R E O F , His Highness, Sultan Muhammad Esmail Kiram, Sultan of Sulu, on his own behalf, and Emmanuel Pelaez, Vice President of the Philippines and concurrent Secretary of Foreign Affairs, on behalf of the Republic of the Philippines, have signed the present Instrument and have annexed respectively the seal of the Sultanate of Sulu and the seal of the Republic of the Philippines. Done at Manila, this 12th day of September, in the year of Our Lord. 1962. (Sgd.) S U L T A N M U H A M M A D ESMAIL K I R A M Sultan of Sulu (Sgd.)

EMMANUEL PELAEZ Vice President and concurrently Secretary of Foreign Affairs of the Republic of the Philippines

The aim of this article is to suggest answers to the following legal questions concerning these documents: ( A ) Assuming the authenticity of the documents a) b) c)

of April 24, 1962 or Sept. 11, 1962 or Sept. 12,1962

Which of them, in the face of certain contradictions, are basic documents, and which are not ? ( B ) What are the legal implications of said documents? What are transferred by the Sultan of Sulu to the Philippine Government in 1962 — sovereignty, dominion, both, or neither? ( C ) What are the legal effects of the Instrument or

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February 1, 1966, executed by the heirs of Sultan Jamalul Kiram II regarding their proprietary righto in North Borneo? Suggested Answer to Question A The instrument of April 24, 1962 is the instrument whereby the living heirs of the late Sultan Jamaliel Kiram "irrevocably recognized, admitted, and accepted the ultimate sovereignty, title, and dominion of the Republic of the Philippines over the Territory of North Borneo, without prejudice to such rights as the heirs of the said Sultan Jamaliel Kiram may have." [Instrument of Cession of the Territory of North Borneo by His Highness Sultan Muhammad Esmail Kiram, Sultan of Sulu, Acting with the Advice and Authority of the Ruma Bechara to the Republic of the Philippines (12th Paragraph), Sept. 12, 1962; Paragraph 2 or the Instruments or April 24, 1962.1. The instrument of Sept. 11, 1962, is the instrument executed by President Diosdado Macapagal on said date investing Vice-President Emmanuel Pelaez full power and authority to formally accept for and in behalf of the Republic of the Philippines, "the cession or transfer of sovereignty over the Territory of North Borneo by His Highness Sultan Muhammad Esmail Kiram, Sultan of Sulu, acting on the advice and authority given by Resolution of August 29, 1962 of the Ruma Bechara in Council assembled." This instrument further provides that "such Instrument of Cession as may be accepted by the Honorable Emmanuel Pelaez under the present authority is to be transmitted to the President of the Philippines for further action in accordance with the Constitution and laws of the Republic or the Philippines." The instrument or September 12, 1962 (this was executed the very day after the instrument of authority granted VicePresident Pelaez), is the instrument of cession itself entered into between the Sultan in his own behalf and Vice-President Pelaez in behalf of the Republic of the Philippines. The most important paragraphs of this instrument provide that "the Territory of North Borneo, and the full sovereignty, title, and dominion over the territory, are hereby ceded by His Highness Sultan Muhammad Esmail Kiram, Sultan of Sulu, acting with the advice and authority of the Ruma Bechara, to the Republic of the Philippines, fully confirming and ratifying the stipulations in the Instrument of April 24, 1962," and that "the cession is hereby formally accepted on behalf of the Republic

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of the Philippines by the Honorable Emmanuel Pelaez, VicePresident of the Philippines, and concurrently Secretary of Foreign Affairs." It is obvious that all the three instruments are "basic documents" relative to our Sabah claim, the first being the preliminary agreement on the cession, the second being the authority granted the negotiating official, and the third being the confirmation or ratification of the first, and the resultant product of the second. Without these instruments, the Republic's posture in making the claim may, rightly or wrongly be criticized by both the heirs of the late Sultan and the Malaysian Government. With the execution of the instruments, there can be NO DOUBT that the Republic of the Philippines is really the proper party in interest in prosecuting the claim. The alleged (but unspecified) contradictions in the instruments do not exist. Suggested Answer to Question B The next questions that require answers are, to repeat, as follows: What are the legal implications of the documents? What were transferred by the Sultan of Sulu to the Philippine Government in 1962 — sovereignty, dominion, both, or neither? Perhaps, it is advisable to answer the second question first. There is no doubt that the instrument of April 24, 1962 expressly transfers "ultimate sovereignty, title, and dominion." (Paragraph 12 of the Instrument of Sept. 12, 1962; Paragraph 2 of the Instrument or April 24, 1962.). The instrument of Sept. 12, 1962 also expressly transfers to the Republic of the Philippines "the full sovereignty, title, and dominion over the territory." (Paragraph 16 of the Instrument of Sept. 12, 1962). Please note, however, that in both instruments, there was a reservation made as to the proprietary rights of the Sultan's heirs. (Paragraph 2 of the Instrument of April 24, 1962; Paragraph 16 of the Instrument or Sept. 12, 1962). Some legal implications or the documents which apparently are adhered to by our Philippine Government, would seem to be the following: firstly, that prior to the execution of the instruments, the Philippine Government had recognized

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sovereignty rights of the Sultan of Sulu over Sabah, otherwise there would have been no necessity for accepting the cession; secondly, that while the Sultan of Sulu was a citizen of the Philippines, and while Sulu itself was part and parcel of the Philippines, the Sultan was still a person exercising sovereign powers over certain territory, not ordinarily covered by Philippine jurisdiction; thirdly, assuming the validity of the instruments, the Philippine Government, thru the President, can acquire sovereignty and dominion over additional territories thru cession effected by the former sovereign; and finally, that the Philippine claim to Sabah is not as successor to the United States and Spain, but as successor to the Sultanate of Sulu. (From these implications, 't is cle?r that we are not bound by any adverse renunciation of Sabah that may have been at one time or another been made by either or both the United States and Spain. As well-stated by Senator Arturo M. Tolentino — "while it is true that the Philippines is a successor to the United States in the territory of the Philippine Archipelago, that relationship does not apply to Sabah or North Borneo, which passed to the Republic of the Philippines by cession from the Sultan of Sulu. As regards Sabah, we are bound by the acts of the Sultan, but not by acts of the United States." (Manila Times, Friday Dec. 27, 1968). In fact, the document hereinabove mentioned brings into focus the joinder of issues in the Sabah dispute. As aptly said by Senator Arturo M. Tolentino on October 25, 1968 before the United Nations General Assembly, the following is the ISSUE: "The Philippines asserts sovereignty by virtue of a deed of cession from the Sultan of Sulu and disputes the title of Malaysia on the grounds that the original right given by the Sultan of Sulu to Overbeck and Dent, which successfully passed to the British North Borneo Company, the British government, and now Malaysia, was not a cession but of lease. "Upon the other hand, Malaysia assails the sufficiency and legality of the basis of the Philippine claim. Having assumed all the rights and obligations of the United Kingdom in respect of the State of Sabah as from September 16, 1963, Malaysia justifies the title of

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its predecessor-in-interegt, the United Kingdom, by the fact of continuous occupation, administration, and exercise of soverignty. T h e issue thus joined iB clearly a legal issue. The method of judicial settlement is one of the means provided in the Charter of the United Nations and contemplated in paragraph 12 of the Manila Accord, signed by both the Philippines and Malaysia and quoted repeatedly. That is why we have invited Malaysia to agree to the submission of this legal dispute to the International Court of Justice, which obviously is the most appropriate body to pa6S the legal issues, between States." Suggested Answer to Question C Finally, the question has been asked: What are the legal effects of the instruments of February 1, 1968, executed by the heirs of Sultan Jamalul Kiram II regarding their proprietary rights in North Borneo? On February 1, 1968, the heirs of said Sultan unilaterally executed an instrument entitled "RECOGNITION OF THE A U T H O R I T Y OF T H E P R E S I D E N T OF THE P H I L I P P I N E S TO ACT ON B E H A L F OF THE HEIRS OF THE SULTAN OF S U L U REGARDING T H E I R P R O P R I E T A R Y RIGHTS IN N O R T H B O R N E O ( S A B A H ) . " The Instrument expressly provides that said heirs of the Sultan "recognize the rights and authority of His Excellency, President Ferdinand E. Marcos, to act for and on their behalf at any opportune time with a view to effecting a settlement of whatever proprietary rights and benefits the heirs may be entitled to; to take up, discuss, negotiate, and settle this matter with any person or persons concerned, and to empower any persons or officials of the Philippine Government to exercise the rights and authority herein recognized." A few observations may perhaps be made respecting this instrument of February 1, 1968. (a) Firstly, the instrument is not a "power of attorney" granted to the President of the Philippines. The reason is obvious: authority was not being given to the President: it was merely being recognized. (To recognize authority in someone is different from granting him authority. For instance.

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students recognize (not grant) the authority of the professor. It is the school administration, and the very essence of teachi n g itself, that grant such authority.). As a matter of fact, the very first word of the title of the instrument is "Recognition." Besides, to grant or give such authority would be to make the President an agent (an extension of the personality of the heirs), subject to the control and order of the principal, namely, the heirs. Obviously, under our governmental set up, this would be void and unconstitutional. (b) Secondly, the authority of the President of a country (as the representative of MB State) to act in behalf of private persons or citizens against a foreign State, is granted by the principles of Public International Law. A citizen of one nation wronged by the conduct of another nation, must seek redress thru his own government. (U.S. v. Dickelrnan, 92 U.S. 520, 23 L. Ed. 742. In this case, the United States Supreme Court further held that the citizens' own "sovereign must assume the responsibility of presenting his claim, or it need not be considered. If this responsibility is assumed, the claim may be prosecuted as one nation proceeds a g a i n B t another, not by suit in the courts, as of right, but by diplomacy. . . " ) ; the citizen cannot directly by himself enforce his right against the foreign State. (The reason is clear: the citizen cannot, in the courts of his own State sue the foreign State, for no jurisdiction can be obtained by said courts, in accordance with the principle of the equality of sovereign States; neither can he sue in the courts of the foreign State, for a State cannot, in its own courts be sued without its consent.) (c) Thirdly, this right of a State to pursue a claim in behalf of its own citizens applies, whether, the injury be committed in its own territory or in the territory of the foreign State. (See Abad Santos, Cases on International Law, pp. 470, 472, 475), and whether the injury be physical or the result of a contractual breach. Hence, in one case, the Illinois Central Railroad Co., thru the United States Government, sued the Government, Railway Administration of Mexico for damages ($1,807,531.36 with interest), as a result of a breach of contract, i.e., Mexico's failure to pay the unpaid balance due on 91 locomotive engines sold and delivered by said Illinois railroad company (a private corporation) to the Government Railway Corporation of Mexico.). This right, however.

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can only be exercised if the State is REQUESTED to do so, by the citizen or citizens affected. (See Bishop, International Law Cases and Materials, 2nd ed., p. 631). (d) Fourthly, the instrument of "recognition" cannot be deemed superfluous because, as has already been intimated, the "recognition" virtually is a request for the Philippine Government to take up, in the international level, the cudgels for the heirs' proprietary rights over Sabah (a request that is necessary before the State can officially act); and because, if it had not been made, Malaysia would have a justifiable cause to refuse to settle or to delay the settlement of our Sabah claim (be it remembered that in an official communication of then Vice-President Pelaez, concurrently Secretary of Foreign Affairs to the British Ambassador under the date of September 12, 1962 — Mr. Pelaez had stated — "The Philippine Government wishes to discuss at the conference table the status of North Borneo in all its aspects, in particular, the question of (1) sovereignty and (2) the proprietary rights of the heirs of the Sultan of Sulu." Now then, considering the fact that in the instruments of cession of sovereignty of April 24, 1962 and Sept. 12, 1962. the heirs have expressly made reservations as to their proprietary rights, it would not be proper for the Philippine Government to have expressly made reservations as to their proprietary rights — unless this instrument of February 1, 1968 were first executed. ( e ) Fifthly, the taking up by our Government of the heirs' proprietary claims would not really be the advocacy of mere private rights, but of N A T I O N A L or P U B L I C RIGHTS. (Claims of this nature "are not private claims but government claims arising out of injuries to private citizens or their property, inflicted by the government against which they are presented." As between the State and the citizens, the claim may be in some sense regarded as private; but when the claim is taken up and passed diplomatically, it is as against the foreign government, a national claim. (See VI Moore Int. Law Digest, p. 616). When on the request of the persons nffecled, a claim is espoused, the nation's absolute right to control it is governed not only by the interest of the particular claimant but by the larger-interests of the whole people of the nation. (Bishop, International Law Cases and Materials, 2nd ed..

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p. 631). It is clear that in presenting such a claim, the Government acts in its sovereign capacity and N O T as an agent or trustee Tor the claimant or claimants. (See U.S. v. La Abra Silver Mining Co., 29 Court of Claims 432). (0 Sixthly, the citation of President Ferdinan E. Marcos by name in the instrument does not imply any recognition of his authority as the President of the Philippines. (In many official communications. President Marcos is referred to as such, in his capacity as President of the Republic, and not as a private person.) (g) Seventhly, the recognition of authority is with respect to the right of the President to negotiate with any "person or persons." In view of the lack of qualification, the "persons" indicated may be natural or juridical, and the latter clearly would include foreign governments or States. (h) Finally, premises considered, it is submitted that the instrument of February 1, 1966 is legal, constitutional, and necessary. PRESENT STATUS OF THE RP CLAIM TO SABAH In an attempt, two and a half decades later, to broker an agreement among the heirs of the Sultan of Sulu on their proprietary claim to Sabah as part of the ongoing process to firm up the Philippine position on the issue, Philippine President Fidel V. Ramos met with Jamalul Kiram I I , his immediate family members and advisers on January 20, 1993 at Malacanang Palace, in the hope of unifying the clan's claim to the Sabah territory. Kiram, who claimed to be the third legitimate Sultan of Sulu, had threatened to wage war against Malaysia, unless it returns control of the oil-rich State to the family. He also claimed that the Philippines has no right over Sulu and Sabah since these were not part of Lhe Philippine territory ceded to the United States by Spain in the Treaty of Paris. (See Bobby Capco, "Ramos to Broker Agreement Among Sultan of Sulu's Heirs on Sabah Claim,'' The Philippine Star, January 23, 1993, p. 6). The Philippine claim to Sabah, as previously mentioned, which was first established by former President Diosdado Macapagal in 1962, had been hampered by a conflict among the heirs of the Sultan of Sulu. 'Hindi sila magkasundo kung sino ang magsasalita para sa pamilya ("They cannot agree on who among them will

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speak for the family"), said a Palace official. All of the Sultan's nine children have died, leaving the hereditary rights to Sabah to about 1,000 children, grandchildren, and great-grandchildren. Kiram told the President that he represents six of the legitimate heirs of the Sultan of Sulu, or a majority of the nine legitimate heirs. With Kiram at the meeting were Datu Fuad Kiram, the son of the late Datu Esmail Kiram who asked Macapagal to stake the Philippine claim to Sabah, Datu Firdaussi Abbas and Raja Mula. Foreign Affairs Undersecretary Rodolfo Severino said the Malaysian government is willing to settle the heirs' proprietary rights to Sabah, but it is confused on who to deal with. (Ibid.) President Ramos told Kiram and relatives that the heirs will be regularly consulted by the joint council on the Sabah issue, which had created a Proprietary Claims Committee. The bipartisan Executive-Legislative Council on the Sabah issue is now trying to reconcile the various positions on the Philippine claim. Nonetheless, Ramos told Kiram that there is need for a united stand between the heirs and the government, i.e., to speak with one voice. The Sabah issue heated up again in the wake of the President's early February 1993 State Visit to Malaysia, whose relations with the Philippines cooled because of the country's claim to Sabah. The State Visit is the first step in the relations between Manila and Kuala Lumpur. Be it noted that although both countries are members of the Association of Southeast Asian Nations ( A S E A N ) , there had been no exchange of official visits (until the February State Visit) between their Heads of State owing to the Sabah conflict. Philippine Senator, Dr. Gloria Macapagal-Arroyo (daughter of former Pres. Macapagal), mused that "responsible governments do not drop territorial claims; many claims have been pending for centuries until settled by international law." ASEAN REGIONAL SECURITY IN THE POST-COLD WAR ERA 23

With tension-filled conflicts renting the air in many parts of the world, the Association of Southeast Nations or A S E A N has '"See Dr. Ranhilio Callangan Aquino, O.P.. "The Legal Aspects of Iniornational Conflict Resolution," The Lawyers Review. Vol. V I I . No. 7, July 31, 1993. P 4

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frown wmrj. For one, it has changed its notion of "security," veering away from iti traditional meaning in the military sense. "Economic security* has been installed in its place, occupying a veritable nerve center. In the realpolitik interpretation of world politics, "the existence of an anarchical international law system itself is one in which a State must fend for its own survival." This explains why member-countries of the ASEAN have banded together via "multilateral cooperation in the security environment." 21

25

26

The key to mutual peace is cooperation, knowing fully well that "wars begin in the minds of men." Did not Sun Tzu say that "to win one hundred victories in one hundred battles is not the acme or skill?" * 27

2

9

Like wars, regional conflicts provoke defense spending among the concerned actors conjecturing images of insecurity, for "when arms take precedence over needs basic to human development, people are not secure. But the debate is in flux: the essence or security, the threats to it, and the means to achieve and preserve it needs to be appraised." 50

After a decade of runaway military spending, the mid-nineties may provide an opportunity for redirecting security policies so as to allow governments to free the resources needed to address 31

-'See Edgar do C. Paras, Jr., "Recent Trends in International Law," UST Journal of Graduate Research, Vol. 15, No. 1, Oct. 1985, p. 42. ^See Daniel S, Papp, Contemporary International Relations: Framework for Understanding (1986). '"•James D. Lewis, "Southeast Asia: Preparing for a New World Order," The Washington Quarterly, Winter 1993, p. 187. • B.F. Skinner. Beyond Freedom and Dignity, 1972, p. 7. "See Rcnato de Castro, "Ways or War: A Comparative Study of the Politico-Strategic Theories of Sun Tzu and Carl von Clausewiu," Praris. Vol. V. 19911993, p. 89 "See Chuen-mei Pan and Liang-Shing Fan, "Economics Tor Military Expenditure in the Asian Setting." The Philippine Economic Journal, Number Sixly-Nine, Vol. XIX. Nos. 3 and 4, 1990, pp. 50-64. "Michael Renner, "Enhancing Global Security," State of the World, 1989, p. 132. "See Theodore H. Moran, "International Economics and National Security," Foreign Affairs, Winter 1990-91, p. 84. 7

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32

pressing social, economic, and environmental problems across the globe. 35

Whatever arguments are made, pro or con, the end of the War has Asian countries racing to stock up their arsenals." is contrasted with the worldwide military spending, which, proportion of economic output, has declined 25% between and 1992, and should drop another 30% by 1998.

Cold This as a 1986

:,i

As earlier pointed out, no longer is the concept of "security" confined to its traditional meaning in the military dimension. Dr. Paul Kennedy, in his Preparing for the Twenty-First Century (1993), placed it in proper perspective when he enthused that "there now exist vast non-military threats to the safety and well-being of the peoples of this planet which deserve attention." These "non-military threats" can only be gauged in economic terms, considering that the new focus of foreign policy ' is the establishment of economic diplomacy.™ (The object of economic diplomacy is to help secure the external resources required for the survival and development of the economy. ). The cause celebre is buttressed by a remark of the President of the United States, Bill Clinton (born William Jefferson Blythe I V ) who envisions a "world in which nations compete more in economic and less in military terms." 36

1

39

40

32

S e e FlorenLino P. Feliciano, The External Debt, Hague Academy or International Law's Centre Tor Studies and Research in International Law and Internationa] Relations (1992). "See Edgardo C. Paras, Jr., "International Law and Regional Security." Business Star, Nov. 17, 1993, p. 4. S e e Ranjan Roy of New Delhi comment, and cited by the Sunday Chronicle, March 7, 1993. ^The International Monetary Fund, "Study on Worldwide Military Spending," September 22, 1993. S e e Miriam Defensor Santiago, International Relations, 1975, p. 3. S e e Edgardo C. Paras, Jr., "RP Foreign Policy," Business Star, January fi, 1993. p. 4. S e e Secretary of Foreign Affairs Roberto R Romulo's speech delivered at the Rotary Club of Manila on September 2, 1993. *The legal mandate for economic diplomacy in the Philippines is established by Executive Order 74, signed by President Fidel V. Ramos on March 29. 1993. *"See United States Information Agency, November 1992 on "Bill Clinton 42nd President of the United States of America." 34

M

37

M

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1

Foreign policy, as "another name for a nation's security,"* to borrow the characteristic language of Philippine Senator Bias Ople (Chairman of the Senate Committee on Foreign Relations), has been "ramified into a whole maze of derivative issues such as trade, investment and other exchanges, and the endless amenities of international relations." ThiB posture accounts for the emergence of regional trading blocs (the A S E A N Free Trade Area [ A F T A ] , the North American Free Trade Agreement [ N A F T A ] , and the European Community [Common Market], as well as the fifteen-member APEC (the Asia Pacific Economic Conference) and the growth triangles in Asia, the most economically vibrant but geopolitically perilous region in the world. 41

As the megastar continent of economic growth and producer of a larger fraction of world output than any other, such as North America or Europe, it comes as no surprise that foreign traders and investors wish to cash in on new opportunities.* With that status. Asia, indeed, has "more to gain from international trade liberalization than probably any other region."" 1

Adapting iLself to the evolving scene," the ASEAN in its historic Fourth Summit in Singapore, agreed to: (1) Establish an ASEAN Free Trade Area ;AFTA) within 15 years, and in the interregnum to implement a Common Effective Preferential Tariff (CEPT); (2) Intensify economic cooperation within ASEAN and between ASEAN and other countries; and (3) Endorse the formation of growth triangles, and other cooperative arrangements not needing participation by all six ASEAN member countries (Singapore, Malaysia, Indonesia, Thailand, Brunei, and the Philippines). As matters stand now, "trade liberalization is the wave of the future, [although] no free trade agreement anywhere in the world can succeed without the accompanying legal system to support it." 46

"See Loren Legarda, "Media and Security." Manila Bulletin, November 10. 1993, p. 10 "Shunji Tuoka, "A Shrinking Tiger," Newsweek. November 15, p. 19. "See Roy J. RulTin, "The Role ofForegn Investment in the Economic Growth of the Asia and Pacific Region," Asian Development Bank Review, Vol. II, No. 1, 1993. p. 1. "The Asian Wall Street Journal, May 12, 1992. "See Edgardo C. Paras, Jr.. "Asia-Pacific Century," Business Star, Nov. 19, 1993, p. 4 **Artemio V. Panganiban, Legal Problems in International Trade Spawned by the ASEAN Free Trade Area (AFTA). A 16-page paper read during the XVlth World Law Conference (Manila) on October 27. 1993.

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Undeniably, regional economic blocs" like AFTA,*" NAFTA,'* and the European Community are compatible with the multilateral trading system of the General Agreement on Tariffs and Trade ( G A T T ) . However, questions on whether regional free trade arrangements will ultimately converge toward multilateral free trade, and in what form, cannot yet be answered and will depend on future political as well as economic relationships. 50

One such economic relationship is the advent of growth triangles,™ which are predicted to become "more successful than A F T A because A S E A N economies are more or less in the same level of development, with Singapore the only one above the rest." 52

5 1

Economic growth triangles are the result of the changing nature of the nation-State. Opined Lee Poh Ping, economics professor of the University of Malaya: T h e State is too small to accomodate the problems of the macroeconomy, like harmonizing economic policies, trade and exchange rates. At the same time, it is too big to cope with microeconomic problems like creating economic opportunities. Because of this, people are no longer worried about the sacrosanct nature of State sovereignty. Certain things that the nation-State cannot handle, they leave to the sub-regional area or to the supra-regional area." For the "nurturing and harnessing of East ASEAN's potentials can only mean the rise of sub-

41

See Ramon V. del Rosario. "The Philippines and the New Global Environment." A speech delivered before the Rotary Club or Manila, May 28, 1992. "See Lori Eduardo, "Philippine Industry: Before and AFTA," Manila Inc., October 1992, p. 33. *See Washington Economic Reports, " N A F T A Would Help Mexico Most,' July 28, 1993. pp. 1, 4 and A Budgetary and Economic Analysis of the North American Free Trade Agreement, July 1993. See also Howard Fireman and Bob Cohn, "Big Brawl About N A F T A , " Neuisweeh, November 15, 1993, p. 42. "Ernest H. Preeg, "The Compatibility of Regional Economic Blocs and the GATT," The Annals of the American Academy AAPSS, 526, March 1993. "See R. del Rosario, supra, note 47 and Bobby Capco, "ASEAN Endorses Ramos' Proposal for Creation of East ASEAN Growth Area," Philippine Star, October 13, 1993, p. 6. "Manila Bulletin, "ASEAN Sheds Economic Borders With Growth Triangles," October 18, 1993, p B-10. Ibid. Economic tiger Singapore took the lead role, building an industrial park in Batam island in the Riaus, where more than 150 transnational operate Jobor is currently experiencing a boom as Singaporean investors, attracted by its cheap labor, flood in. (See Manila Chronicle, "Editorial: Of Growth and Tnan glea," September 23, 1993, p. 41. 4

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regional dragon economies whose complementation with mother countries are important and delicate aspects of amelioration." u

Rightly or wrongly, the consensus is that a policy of making competitiveness for A S E A N the name of the game, would only hurt the region now, this, despite the increasing organic economic integration that will soon make the area independent of outside markets. For that matter, Asian governments appear to be opting to join forces with the U.S. to lobby for global free trade under the auspices of A P E C . For Winston Lord, U.S. Assistant Secretary of State for East Asian and Pacific Affairs, APEC "is not a regional trading bloc but a building bloc for global, freer trade." Potentially, A P E C could be transformed into the world's most powerful trade group, including as it does the fastest growing economies with a combined market of 2 billion people and a combined Gross National Product ( G N P ) of $13 trillion. Nevertheless, the possibility of APEC evolving into another trade bloc, has repeatedly been rejected * by the 6-member A S E A N , which is considered the core of APEC. 55

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For his part, President Clinton knows which part of the world holds the butter, repeatedly stressing the importance of APEC as a means to keep the U.S. as the world's most powerful nation. But while he has called for "a new Pacific community" sharing in the region's prosperity and commitment to democratic values, America's defense responsibilities seem to be lacking. Following the United States reduction of its armed forces and concentration on economic revival, countries in Southeast Asia and the South Pacific fear they are sinking in American strategic priorities, despite U.S. denials. The United States pulled its re-

^Buddy del Rosario, "Building the Blocs of the East ASEAN Bloc." Philippine Graphic, November 12, 1993, p. 38. Edgardo C. Paras, Jr., "Asia's Growth." Business Star, June 2. 1993, p 4 and E C . Paras, Jr. "Asia-Pacific Century, "Business Star, Nov. 19, 1993, p. 4. ''Laurence Zuckerman, "Asia's Strang Growth Offsets West's Protectionist Moves Breaking Blocs." The Asian Wall Street Journal, May 12, 1993, p. 1. "Manila Bulletin, "APEC No Trade Bloc, U.S. Vows.' November 6, 1993. p. B-5. "See Roberto Coloma, "ASEAN Wary of New Trade Bloc in APEC," Manila Bulletin, November 10, 1993, p. B-l. "See Monicca B. Egoy, "AFEC Members to Forge Trade, Investment Agreement in Seattle," Business Star, November 10, 1993. pp. 1. 5. 5S

INTERNATIONAL LAW AND WOBLD POLITICS

m a i i i i n g foTOM out of the Pmhppinea in 1992; American troops stationed in Japan, South Korea, and U.S. territories in the Western Pacific have been cut in recent years to 100,000, from 135,000. Concerned with such grim realization, Philippine President Ramos in his one-on-one meeting with Clinton in Washington, D.C., on November 23, 1993, called for the U.S. to continue its military involvement in Asia. Singapore Senior Minister Lee Kuan Yew has earlier warned that Asia would shift its forces from economies to defense as old suspicions and animosities would resurface if the U.S. withdrew from the region. Said he: I f the United States packs up, then all the ancient suspicions and animosities between Japan and China, Japan and Korea, and Korea and China and the fears of A S E A N for China and Japan would shift the focus from the positive which we have achieved to defense and security."" So deep do the fault lines of suspicion and mistrust run between Tokyo, Beijing, and their neighbors that an American disappearing act would almost certainly be destabilizing.*' China is nuclear-armed * and Japan, no longer ruling out the possibility of producing its own nuclear weapons." While Japan spends only 1% of its G N P on defense and prides itself on being a peaceful nation, neighbors regard it as a potential threat to regional security. The worry is due to Japan's mighty economy. In fact, Japan's current account surplus has grown to a record $63.71 billion for the six months thru September 1993.'* 6

64

As to China's incursions and insistence to bully its way to the Spratly Islands, despite the former's doublespeak, only a matter of time will determine how far China's adventurism is.

""Manila Bulletin. "U.S. Pledges Stronger Tics With ASEAN Nations." May 18. 1993, p. 2. B i l l Powell, "Asia's Power Struggle," Newsweek, November 15. 1993. p. 14. S e e Ramon Isberto, "Battle of the Giants: Geo-Political Rivals. Geo-Economic Foes," Manila Bulletin. June 10, 1993. p. 11. "Selig Harrison, "The 3-Comered Nuke Suspense in Asia," Washington AMI.. cited by Manila Bulletin, November 5, 1993, p. 11. "See Leocadio de Asis, Japan: Bodv and Soul I Manila: Ren Book Store. 1993). "See International Herald Tribune. November 6-7. 1993. cited by Sii.sinf.ss Star, "Business Memo: Japan." November 9. 1993. p. 2. 6l

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Quite expectantly, the A S E A N members are worrried over the Spratlys unanimously declared by all and sundry as the next possible flashpoint in the region. 6 6

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The Spratly Islands (known to the Chinese as the Nansha Islands, to the Vietnamese as the Truong Sa and to the Philippines as Kalayaan) are a group of islets, coral reefs and sandbars in the South China Sea dispersed over 600 miles (965 km), which are claimed by the People's Republic of China, the Republic of China (Taiwan), Vietnam, Malaysia, Brunei, Indonesia, and the Philippines. The Spratly Islands lie nearly 300 miles (480 km) west or the Philippines island of Palawan, slightly over 300 miles east of Vietnam and about 650 miles south of Hainan, the nearest Chinese territory. All the islands are very small; the largest, Itu Aba (known to the Chinese as Taiping), has an area of only 90 acres (36 hectares). They occupy a position of strategic importance, however, as they command the sea passage from Japan to Singapore. Oil was discovered in 1976 at Reed Bank, midway between Palawan and the Spratlys, and has been developed by the Philipines since 1979. The Philippines bases its claim on proximity and administrative control, but has laid no claim to Spratly Island itself which lies over 200 miles (320 km) south-west of the main group of islands. In May 1956, after a private Philippine expedition had surveyed and occupied a number of the islands, the Philippine Government laid claim to them for the first time. This claim was disputed by China, Taiwan and South Vietnam, and a South Vietnamese garrison occupied Spratly Island in August 1956. After the Taiwan garrison on Itu Aba had fired on a Philippine fishing boat, the Philippine Government sent a note in July 1971 demanding their withdrawal. At a press conference on July 10, 1971, President Ferdinand E. Marcos of the Philippines maintained that

"'Lee Lai To, "Security Issues or the South China Sea in the Post-Cambodian Era," Foreign Relations Journal (FRJ), Vol. VIII, No. 1. March 1993; Julius Caesar ParreAas, "Geopolitical Dimensions or the Spratly Islands Dispute," FRJ, id. and Gil S. Fernandez. "Proposed Solution to the South China Sea Conflict." FRJ, id See Edgardo C. Paras, Jr., "The Spratly Islands Dispute," Business Star, Oct 13, 1993. p. 4 ""See Choon-ho Park, East Asia and the Law of the Sea (1993). See also Claude A. Buss (ed.), National Security Interests in the Pacific Basin (1985). H7

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after Japan renounced its sovereignty over the islands they had become a de facto trusteeship of the allied powers, and that this trusteeship precluded the setting up of garrisons on any of them without the allies' consent. He stated that the Philippines were in effective control of three of the larger islands, however, and accordingly, Philippine troops were landed on these islands. The Philippine Government set up a military command on Palawan in March 1976, and by March 1978 had established garrisons on seven of the islands. It reached an agreement with Vietnam in January 1978 to solve the dispute "in spirit of conciliation and friendship," and concluded a similar agreement wiLh China in the following March. At a press conference on Sept. 14, 1979, President Marcos made it clear that the Philippines confined its claim to the seven islands under its occupation. These islands, he declared, were "unoccupied, unowned and unpossessed islands" which had not even been shown on maps before the Second World War, and the Philippines had therefore occupied them as "new territory or res nullius." In August 1980, the Vietnamese Foreign Ministry made a protest to the Philippines over what it described as the latter's occupation "of the Comodor Reef in "the Vietnamese archipelago of Truong Sa." After a decade and two, and a "standoff," Philippine Senator Leticia Ramos Shahani (sister of PreB. Fidel V. Ramos) believes that, with the impending implementation of the UN Law of the Sea, ( U N C L O S ) , there is an urgent need to promulgate a definite national policy on the territorial disagreement over the Spratly. ' 65

In a 1992 resolution she filed at the Senate, Shahani said: "Pursuant to the principles set in the U N C L O S and the genera) principles of international law, the Philippines has to define thru appropriate legislation its archipelagic baselines. [This necessitates] the amendment of the Baselines Law™ to redraw the archipelagic baselines to include the Kalayaan island group. The enforcement of the U N C L O S would automatically mean a gain for the Philippines as an archipelago of 652,800 square miles for its maritime area; this includes the territorial sea drawn 12 nautical miles from the archipelagic baselines, the contiguous zone of another 12

^ S e e Manuel F. Almario. "Flash Point," Philippine Graphic, June 7, 19»3, p. 10.

"Republic Act 3406, as amended by RA 5446.

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nautical miles, and a 200-mile exclusive economic zone. The Philippines has sovereign rights over the vast area for exploring and exploiting, conserving and managing natural resources whether living or non-living, including State sea-bed and subsoil thereof." 71

Under the 1987 Philippine Constitution, the State is mandated "to protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zoneVatid reserve its use and enjoyment exclusively for Filipino citizens.' '* But as "the •weakest' militarily among the six countries seeking-4*r-"exercise sovereignty- ovm the~Tfisputed7J3Jaiids -the Philippines cannot afford to engage in a war over T h e Spratlys or Kalayaan. The Philippines has no option but to pursue its claim on the diplomatic front, backed [up] by steps on the domestic front that would strengthen its claim, as suggested "by Sen. Shahani. As a last resort, there is always the United Nations to appeal to."" Nonetheless "talk talk is better than shoot shoot," as one Indonesian diplomat quipped. 1

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In order to attain regional security in the A S E A N , therefore, it is imperative that economic growth be in the forefront. The U.S. is looked upon as the main protector "but for this to happen, its leadership must have a foreign policy vision that is more farsighted and that looks beyond interest group politics and overcome old Cold War mindsets." 77

Pointedly, averred Philippine Senate President Edgardo J. Angara, "the future development " of the ASEAN legal order, if that loose arrangement of declarations can be called such, should 7

''Almario, op.cit., p. 11. '^Article XII, Sec. 2, par. 2. "Almario, op.cit. '•This is, according to S. Wiryono, the Indonesian Foreign Ministry's Director-General or Political Affairs. '''See Frank Ching, "Scientific Meetings Being Held to Reduce Spratlys Tension, Far Eastern Economic Review, May 27, 1993. p. 30. ' See Jose T. Almonte, "Tomorrow's Security Issues and Today's Necessary Responses." Address before Asia-Pacific Dialogue on Cooperative Peace Security. Kuala Lumpur. June 9, 1993. "Julius Caeaar Parrenas, Restructuring for Stability: Economic. Political, and Security Dimensions of Japanese-Philippine-U.S. Relations in the 1990s, 1992, p. 102. See Asiaweek. "United We Stand: The Community of Nations Must Be Established Now," April 21. 1993. pp. 22-25. B

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perhaps, proceed on the present basis of continuing interaction, * change being the law of international relations. For the chief aim of A S E A N should be the maintenance of the balance of power in the region., with the end in view that balanced power has traditionally sought, i.e., the independence of nations and the prevention of hegemony on the part of any one of the ASEAN membercountries. BB0

The Clinton Administration has endorsed Asia-Pacific regional fora for political and security matters, and said multilateral security meets are viewed as "necessary to manage and prevent" such things as arms race, or the efforts of a single power to dominate a strategic region." 1

In fine, said Angara, "the instruments of balance include conflict when all else fails, important not to lose sight of this so that none are taken unawares and no impossible hopes of permanent peace are raised. The balance of power has never been intended to guarantee peace — only national freedom."" In any case, "strengthening A S E A N is a job not only for the A S E A N countries themselves, but for the U.S. and Japan, as well. For the sake ol regional security and prosperity,*' it is well worth the effort."* 2

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" S e e The Economist," A Survey of Asia." October 30th-November 5lh, 1993 ™Edgardo J. Angara, "ASEAN Legal Order and Framework for Diplomacy "ASEAN Law Journal, Vol. 2, 1986, pp. 27-28. 'Beth Day Romulo, "Asians Are Coming Together," Manila Bulletin. Maj 20, 1993. p. 10. "Angara, op.ci(. " S e e G.M. Taber, "Southeast Asia's Super Seven," Readers Digest, Junt 1993, p. 35. Parrenas, supra, note 77 at 104. Anenl the road In prnsperity. Presidenl Fidel V. Ramos or the Philippines in a Time interview (Nov. IS, 1993* enthused that American Presidenl Bill Clinton should view the Philippines with a "fresh outlook." Ramos said: T h e Philippines is back in business in the center of A sin and boasts of a representative, democratic society that has been built on th» principle of the rule of law," in line with Philippines 2000. 8

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