FOLKE BERNADOTTE CASE

Folke Bernadotte, Count of Wisborg (in Swedish: Greve af Wisborg; 2 January 1895 – 17 September 1948) was a Swedish diplomat and nobleman noted for his negotiation of the release of about 31,000 prisoners from German concentration camps during World War II, including 450 Danish Jews fromTheresienstadt released on 14 April 1945. In 1945, he received a German surrender offer from Heinrich Himmler, though the offer was ultimately rejected.

After the war, Bernadotte was unanimously chosen to be theUnited Nations Security Council mediator in the Arab–Israeli conflict of 1947–1948. He was assassinated in Jerusalem in 1948 by the militant Zionist group Lehi while pursuing his official duties. The decision to assassinate him had been taken byNatan Yellin-Mor, Yisrael Eldad and Yitzhak Shamir, who later became Prime Minister of Israel.In a letter dated 14 June 1950 from the Minister of foreign affairs of the government of Israel to the Secretary General concerning a claim for damage caused to the UN by the assassination of Count Folke Bernadotte, in the letter it was said:

“ It is noted that in bringing forward this claim you reserve all the rights of the United Nations

with respect to the death of Colonel André Sérot, United Nations Observer from France, who

was killed during the same assault. It is further noted that you are submitting this claim under

the authority conferred by resolution 365 (IV) adopted by the General Assembly of the

United Nations on 1 December 1949. That resolution, in its second operative paragraph, "

authorizes the Secretary-General to take the steps and to negotiate in each particular case the

agreements necessary to reconcile action by the United Nations with such rights as may be possessed

by the State of which victim is a national". Though you do not mention any steps which may have been

taken by you to reconcile action by the United Nations with such rights as may be possessed by Sweden,

it is assumed that the rule of law reaffirmed by the International Court of Justice in its Advisory Opinion

of 11 April 1949, to the effect that the defendant State can not be "compelled to pay the repatriation

due in respect of the damage twice over", was taken into account in the advancement of the United Nations

claim that the Government of Israel need not anticipate any further demands for reparation in respect of

the damage caused by the assassination of Count Folke Bernadotte. " 

After summarizing the facts of the murder, the letter indicates the legal grounds upon which, in view, the responsibility of the Government of Israel rests. These legal grounds fall into two distinct categories: those based upon general rules of international law, and those based upon specific obligations imposed by the Security Council.

In his Findings, the Swedish Chief Prosecutor lists a series of omissions which in his view contributed to the tragedy and to the failure to trace the perpetrators. Among these he stresses the neglect of the local Israel authorities in failing to provide an armed escort for Count Bernadotte during his last journey through the Israel-controlled sections of Jerusalem.

The Government of Israel accepts the conclusion reached by its Committee that, from a technical police paid of view, the Swedish Chief Prosecutor was correct in establishing the following gaps and omissions in the police inquiry:

1. Failure to take immediate steps for the apprehension of the criminals;

2. Failure immediately to cordon off the scene of the crime;

3. Delay in carrying out a thorough examination of the scene of the crime;

4. Failure to examine the leading vehicle of the Mediator's convoy; and delay in carrying out complete examination of the Mediator's own vehicle.

5. Failure to collect evidence from four members of Count Bernadotte's party;

6. Failure to take steps to examine the weapons taken from the "Stern Group" bases in Jerusalem, and ineffectual examination of the cartridge cases found;

7. Inactivity regarding the apprehension of the jeep used by the assailants, and failure to make any attempt (with the help of eye-witnesses) to identify it from among the vehicles taken in the "Stern Group" bases in Jerusalem;

8. Failure to hold an identification parade.ISSUES:

I. In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused

(a) to the United Nations(b) to the victim or to persons entitled

through him?

II. In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights

as may be possessed by the State of which the victim is a national?’ HELD:Yes. The Court advised that: (1) on Question I

(a) (unanimously) the United Nations had capacity to bring an international claim against a State which had caused it damage by a breach of its obligations towards the United Nations. The functions and rights with which the Member States had endowed the United Nations could 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: the members, by entrusting certain functions to the United Nations, with the attendant duties and responsibilities, had clothed it with the competence required to

enable those functions to be effectively discharged. The United Nations was an international person, i.e., was a subject of international law and capable of possessing international rights and duties, having the capacity to maintain its rights by bringing international claims;

(2) on Question I (b) (11 to 4) the United Nations had legal capacity to give functional protection to its agents. The powers which were essential to the performance of the duties of the Organization must be considered as resulting necessarily from the Charter, and the provisions of the Charter concerning the functions of the Organization implied for it the power to afford its agents a degree of protection related to the performance of their duties for the Organization; (3) since the members of the United Nations had created an entity endowed with an objective international capacity, the Court's conclusions on Questions I (a) and (b) applied whether or not the defendant State was a member of the United Nations: ‘fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims’ (at 185); (4) on Question II (10 to 5), there was no necessary order of priority between the rights of diplomatic protection by the victim's national State and those of functional protection by the United Nations, although in the case of Member States the duty of assistance laid down in art. 2 of the Charter must be stressed; and

(5) since the United Nations’ claim arising from injury to its agent was not based on the victim's nationality but on his functions as an agent, it was immaterial whether the defendant State was the national State of the victim.

Report on ITLOS International Tribunal for the Law of the Sea (ITLOS)

• is an independent judicial body established by the United Nations Convention on the Law of the Sea (UNCLOS) to adjudicate disputes arising out of the interpretation and application of the Convention. The Tribunal is composed 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 sea.

• The Tribunal has jurisdiction over any dispute concerning the interpretation or application of the Convention, and over all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal . The Tribunal is open to States Parties to the Convention (i.e. States and international organizations which are parties to the Convention). It is also open to entities other than States Parties, i.e., States or intergovernmental organizations which are not parties to the Convention, and to state enterprises and private entities (such as international organizations and natural or legal persons) "in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case“.

• Pursuant to the provisions of its Statute, the Tribunal has formed the following Chambers: the Chamber of Summary Procedure, the Chamber for Fisheries Disputes, the Chamber for Marine Environment Disputes and the Chamber for Maritime Delimitation Disputes. 

• At the request of Chile and the European Community, the Tribunal also formed a special chamber to deal with the Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community).

• Disputes relating to activities in the International Seabed Area are submitted to the Seabed Disputes Chamber of the Tribunal, consisting of 11 judges. Any party to a dispute over which the Seabed Disputes Chamber has jurisdiction

may request the Seabed Disputes Chamber to form an ad hoc chamber composed of three members of the Seabed Disputes Chamber. History of ITLOS

• It was established by the United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on December 10, 1982. The Convention entered into force on November 16, 1994, and established an international framework for law over "all ocean space, its uses and resources". 

• The Tribunal came into existence following the entry into force of the Convention on 16 November 1994. After the election of the first judges on 1 August 1996, the Tribunal took up its work in Hamburg on 1 October 1996. The official inauguration of the Tribunal was held on 18 October 1996.History of ITLOS

• The Convention lays down a comprehensive system for the settlement of disputes that might arise with respect to the interpretation and application of the Convention. It requires States Parties to settle their disputes concerning the interpretation or application of the Convention by peaceful means indicated in the Charter of the United Nations. However, if parties to a dispute fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to limitations and exceptions contained in the Convention.

• The mechanism established by the Convention provides for four alternative means for the settlement of disputes: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention. Members of ITLOS

• The Tribunal is composed of 21 independent members elected by secret ballot by the States Parties to the Convention. Each State Party may nominate up to two candidates from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.

• No two members may be nationals of the same State and in the Tribunal as a whole it is necessary to assure the representation of the principal legal systems of the world and equitable geographical distribution; there shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations (African States, Asian States, Eastern European States, Latin American and Caribbean States and Western European and Other States). Members are elected for nine years and may be re-elected; the terms of one third of the members expire every three years.Members of ITLOS President Shunji Yanai (Japan) Vice-PresidentAlbert J. Hoffmann (South Africa)Judges Vicente Marotta Rangel (Brazil)L. Dolliver M. Nelson (Grenada)P. Chandrasekhara Rao (India)                Joseph Akl (Lebanon)                         Rüdiger Wolfrum (Germany) Tafsir Malick Ndiaye (Senegal)        José Luis Jesus (Cape Verde)Jean-Pierre Cot (France)                                                           Anthony Amos Lucky (Trinidad and Tobago)Stanislaw Pawlak (Poland)        Helmut Türk (Austria)              James L. Kateka (United Republic of Tanzania)   Zhiguo Gao (China)Boualem Bouguetaia (Algeria)                                             

Vladimir Vladimirovich Golitsyn (Russian Federation)    Jin-Hyun Paik (Republic of Korea)Elsa Kelly (Argentina)David Joseph Attard (Malta)Markiyan Z. Kulyk (Ukraine)Members of ITLOS

• The President directs the work and supervises the administration of the Tribunal and represents the Tribunal in its relations with States and other entities. The President presides at all meetings of the Tribunal. In the event of an equality of votes, the President has a casting vote. The President is also an ex officio member of the Chamber of Summary Procedure. The President presides over any special chamber of which he is a member. 

• The Vice-President exercises the functions of the presidency in the event of a vacancy in the presidency or of the inability of the President to exercise the functions of the presidency.

• The judges elect the President and Vice-President from among themselves by secret ballot for three years.Members of ITLOS

• There are 21 judges.• Statute of the Tribunal sets down that it "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 sea." 

• The judges of the Tribunal are elected by the States Parties. Elections for the position of one-third of the judges of the Tribunal are held at the Meeting of States Parties every three years in New York. Candidates must be nominated by States Parties and require a two-thirds majority of the votes of the States Parties present and voting in order to be elected.Members of ITLOS If the Tribunal or a chamber does not include a judge of the nationality of a party to the dispute, that party may choose a person to sit as a judge (Judge ad hoc). Should there be several parties in the same interest, they are considered for this purpose as one party only. The judge ad hoc participates in that case on an equal basis with the other judges.Members of ITLOS

• Pursuant to the provisions of its Statute, the Tribunal has formed the following Chambers: the Chamber of Summary Procedure, the Chamber for Fisheries Disputes, the Chamber for Marine Environment Disputes and the Chamber for Maritime Delimitation Disputes. 

• At the request of Chile and the European Community, the Tribunal also formed a special chamber to deal with the Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community).

• Disputes relating to activities in the International Seabed Area are submitted to the Seabed Disputes Chamber of the Tribunal, consisting of 11 judges. Any party to a dispute over which the Seabed Disputes Chamber has jurisdiction may request the Seabed Disputes Chamber to form an ad hoc chamber composed of three members of the Seabed Disputes Chamber. Jurisdiction of ITLOS Any case arising out of the application or interpretation of the United Nations Convention on the Law of the Sea may be brought to the Tribunal.The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with the Convention. It also includes all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal . The Tribunal has jurisdiction to deal with disputes (contentious jurisdiction) and legal questions (advisory jurisdiction) submitted to it.Jurisdiction of ITLOS

The Tribunal has jurisdiction over all disputes concerning the interpretation or application of the Convention, subject to the provisions of article 297 and to the declarations made in accordance with article 298 of the Convention.Article 297 and declarations made under article 298 of the Convention do not prevent parties from agreeing to submit to the Tribunal a dispute otherwise excluded from the Tribunal's jurisdiction under these provisions (Convention, article 299).The Tribunal also has jurisdiction over all disputes and all applications submitted to it pursuant to the provisions of any other agreement conferring jurisdiction on the Tribunal. A number of multilateral agreements conferring jurisdiction on the Tribunal have been concluded to date.Jurisdiction of ITLOS The Seabed Disputes Chamber is competent to give an advisory opinion on legal questions arising within the scope of the activities of the Assembly or Council of the International Seabed Authority (article 191 of the Convention).The Tribunal may also give an advisory opinion on a legal question if this is provided for by "an international agreement related to the purposes of the Convention" (Rules of the Tribunal, article 138).ProcedureProceedings before the Tribunal(a) Institution of proceedings and representation of parties(b) Written proceedings(c) Initial deliberations(d) Oral proceedings(e) Joinder of proceedings(f) Default(g) Deliberations(h) Judgment(i) CostsProcedure

• Advisory Proceedings before the Seabed Disputes Chamber under the Convention

• Advisory Proceedings before the Tribunal on the Basis of other International AgreementsITLOS and the Philippines

• According to the DFA, the Philippines exhausted all other means to resolve the issue in the South China Sea (West Philippine Sea) and decided to raise the row with the UN-sponsored International Tribunal on the Law of the Sea (ITLOS) to "challenge the unlawful claim of China under their 9-dash line [map.]“END OF REPORT

NORTH ATLANTIC TREATY ORGANIZATION A POLITICAL and MILITARY alliance; System of Collective defense; Maintenance of democratic peace; at present, 28 member countries from Europe and North

America; NORTH ATLANTIC TREATY April 4. 1949 HISTORY OF NATO Treaty of Brussels (March 17, 1948)

◦ Belgium◦ Netherlands◦ Luxembourg◦ France ◦ United Kingdom

NAT(North Atlantic Treaty)◦ Included the 5 Treaty of Brussels states (Belgium,

Netherlands, Luxemburg, France and UK)◦ United States◦ Canada◦ Portugal◦ Italy◦ Norway◦ Denmark

◦ Iceland “The members agreed that an armed attack against any one

of them in Europe or North America would be considered an attack against them all. Consequently they agreed that, if an armed attack occurred, each of them, in exercise of the right of individual or collective self-defence, would assist the member being attacked, taking such action as it deemed necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

-Article 5, NAT,

Washington, DC. COLD WAR period Korean War in June 1950 – forced NATO to develop

concrete military plans. 1951; SHAPE (Supreme Headquarters Allied Powers

Europe) –consolidated command structure, headed by Supreme Allied Commander, Dwight Eisenhower

1952; Lisbon Conference; post of Secretary General was created

◦ Lord Ismay – 1st Secretary General of NATO September 1952

◦ First major NATO Exercises began Exercise Mainbrace Exercise Grandslam Exercise Longstep Naval and Amphibious exercises in the

Mediterranean Sea 1954, Soviet Union tried to join NATO to preserve peace in

Europe May 1955, West Germany was incorporated to NATO. WARSAW PACT on May 14, 1955

◦ Soviet Union◦ Hungary◦ Czechoslovakia◦ Poland◦ Bulgaria◦ Romania◦ Albania◦ East Germany

February 1959 – France withdrew its Mediterranean fleet from NATO command.

Established its own independent defense force But remained a member of the alliance POST-COLD war Dissolution of the Warsaw Pact in 1991

◦ Removed the de facto main adversary of NATO◦ Caused the re-evaluation of its purpose, nature,

and tasks Treaty on Conventional Armed Forces in Europe – agreed

between NATO and SU in 1990◦ Called for the reduction of military forces and

installations in Europe. December 1991, the USSR was dissolved

◦ Cutting down of military spending by European countries from which made up 34% to 21% by 2012.

ORGANIZATION CORE TASKS ORGANIZATION

North atlantic council North Atlantic council Brussels, Belgium Principal political decision-making body

◦ Representation: Each ally has a permanent

representative with the rank of ambassador.

Supported by a national delegation consisting of dilomatic staff and defense adviser.

The NAC meets weekly at the level of allied ambassadors or more often as needed;

Regular meetings also take place on the level of defense or foreign ministers

North Atlantic council Secretary General – presides over meetings of the NAC and

other important NATO bodies◦ Principal spokesperson of the alliance ◦ Appointed for 4 years◦ Senior politician from one of the member

countries◦ Current Secretary General: Anders Rasmussen

(former PM of Denmark)◦ Military committee

Senior military authority Provides advice to the NAC and NPG Military guidance to the alliance’s two Strategic

Commanders◦ ACT(Allied Command Transformation)◦ ACO(Allied Command Operations)

Link between the political decision-making process and military structure.

Nuclear planning group Decisions on the Alliance’s nuclear policy Includes all NATO member countries, excluding France

◦ Military Representative (senior officer from each country’s armed forces)

Safety, security and survivability of nuclear weapons, communications and information systems

Nuclear arms control and nuclear proliferation NATO PArliamentARY ASSEMBLY Legislators from member countries Discuss security-related issues of common interest and

concern Meets every 2 years Political integration body that generates political policy

agenda setting: ◦ Committee on Civil Dimension of Security◦ Defence and Security Committee◦ Economics and Security Committee◦ Political Committee◦ Science and Technology Committee◦ Military structure

Integrated military, first established in 1950 1951, ALLIED COMMAND EUROPE (SHAPE) and its

headquarters was established◦ Four sub-headquarters (Northern and Central

Europe, Southern Region, and Mediterranean) At the peak of Cold War, 16 member nations maintained a

5,252,800 active military personnel and 435,000 forward deployed US forces.

78 headquarters Military structure AFTER the Cold War, NATO downsized its command

structure to 20 headquarters and later to 11 headquarters in 2010.

NATO’S SIGNIFICANCE TODAY September 11, 2001 attack September 12, 2011 the Allies invoked Artricle 5 of the

North Atlantic Treaty, NATO’S collective defense provision

Rapid deployment of vessels and military forces in the East Mediterranean in support of the United States

Afghanistan War, individual Allies deployed forces to Afghanistan, crackdown against al Qaeda and the Taliban regime.

ISAF (international security assistance force) Allowed the establishment of Afghan Transitional

Administration NATO’s significance today Iraq training missions

◦ Assistance to Iraqi security forces To build their own sustainable and

effective military capability NATO’s significance today Libya intervention

◦ Libyan Civil War; Muammar Gaddaffi ◦ UN Authorized NATO forces to assist in the

protection of civilians and bombing of military camps under Gaddaffi

◦ The mission ended on the death of Gaddaffi in 2011

◦ 9500 strike sorties by NATO planesagainst pro-Gaddaffi targets

NATO and the Philippines Philippines; A major non-NATO ally  a designation given by the United States government to

close allies who have strategic working relationships with US Armed Forces but are not members of the North Atlantic Treaty Organization (NATO). While the MNNA status does not automatically include a mutual defense pact with the United States, it does confer a variety of military and financial advantages that otherwise are not obtainable by non-NATO countries.

Nations named as major non-NATO allies are eligible for the following benefits:

1. entry into cooperative research and development projects with the Department of Defense (DoD) on a shared-cost basis

2. participation in certain counter-terrorism initiatives3. purchase of depleted uranium anti-tank rounds4. priority delivery of military surplus (ranging

from rations to ships)5. possession of War Reserve Stocks of DoD-owned equipment

that are kept outside of American military bases6. loans of equipment and materials for cooperative research

and development projects and evaluations7. permission to use American financing for the purchase or

lease of certain defense equipment8. reciprocal training9. expedited export processing of space technology10. permission for the country's corporations to bid on certain

DoD contracts for the repair and maintenance of military equipment outside the United States

United Nations Convention on the Law of the Seas (UNCLOS)I. Historical Background Traditional Rule in Territory:o Cannon Shot Rule: 3-miles from baseline defines the territory or boundary of a stateo Not all states abide by this 3-mile rule; some use the 12-miles to define their sovereign territory 1st Convention (1956-1958):o Resulted in 4 treaties: Convention on the Territorial Sea and Contiguous Zone, Convention on the Continental Shelf, Convention on the High Seas, Convention on Fishing and Conservation of Living Resources of the High Seaso Did not define the breadth of the territorial seao Conventions were only ratified by only 40 stateso Philippines did not ratify the Conventions because of the provisions recognizing the archipelagic doctrine 2nd Convention (1960):o Did not result in any new agreements

o Did not resolve the question of the breadth of the sea 3rd Convention (1970-1982):o Became effective on November 16, 1994

o Salient Features: Uniform breadth: 12 nautical miles for territorial sea Contiguous Zone: 12 nautical miles from outer limits of territorial sea Economic Zone: 200 nautical miles from lowwater mark of coastal state

Archipelagic Doctrine Territorial Waterso It is the extension of the sovereignty of a coastal state that is beyond its land territory and internal waters; or specifically, it is a belt of coastal waters extending at most 12 nautical miles (22 km; 14 mi) from the baseline (usually the mean low-water mark) of a coastal state.o In case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea.o Sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.o The term "territorial waters" is also sometimes used informally to describe any area of water over which a state has jurisdiction, including internal, the contiguous zone, the exclusive economic zone and potentially the continental shelf. Right of Innocent Passage: passing through waters in an expeditious and continuous manner, which is not "prejudicial to the peace, good order or the security" of the coastal state; Fishing, polluting, weapons practice, and spying are not "innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security

Contiguous Zoneo It is a band of water extending from the outer edge of the territorial sea to up to 24 nautical miles (44 km; 28 mi) from the baselineo It is typically be 12 nautical miles (22 km; 14 mi) wide, but could be more (if a state has chosen to claim a territorial sea of less than 12 nautical miles), or less, if it would otherwise overlap another state's contiguous zone.o Within which, a state can exert limited control for the purpose of preventing or punishing "infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea".o There is no standard rule for resolving such conflicts, and the states in question must negotiate their own compromise.

Exclusive Economic Zoneo It is an area beyond and adjacent to the territorial sea o Extends from the outer limit of the territorial sea to a maximum of 200 nautical miles (370.4km) from the territorial sea baseline, thus it includes the contiguous zone. o In the exclusive economic zone, the coastal state has;o Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;o Jurisdiction as provided for in the relevant provisions of this convention with regard to; The establishment and use of artificial islands, installations and structures; Marine scientific research;

The protection and preservation of the marine environment;o Other rights and duties provided in this convention.o 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 provision of this code.o The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with the rules in continental shelf.

Continental Shelfo The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles from the coastal state’s baseline, whichever is greater. o May exceed 200 nautical miles until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometres; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles) beyond the 2,500 meter (the line connecting the depth of 2,500 meters). o Coastal states have the right to harvest mineral and nonliving material in the subsoil of its continental shelf, to the exclusion of others. o Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.

Archipelagic Doctrine: an archipelago shall be regarded as a single unit, so that the waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the state, subject to its exclusive sovereignty

III. Dispute Resolution Generally, disputes should be settled by peaceful means When disputes are not settled by peaceful means, parties may choose to settle disputes with:i. the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany;ii. the International Court of Justice in The Hague, The Netherlands;iii. ad hoc arbitration (in accordance with Annex VII of UNCLOS); oriv. a “special arbitral tribunal” constituted for certain categories of disputes (established under Annex VIII of UNCLOS).

ASSOCIATION OF SOUTHEAST ASIAN NATIONS (ASEAN) The Association of Southeast Asian Nations, or ASEAN, was

established on 8 August 1967 in Bangkok, Thailand, with the signing of the ASEAN Declaration (Bangkok Declaration) by the Founding Fathers of ASEAN, namely Indonesia, Malaysia, Philippines, Singapore and Thailand.

Since then, membership has expanded to include Brunei, Burma (Myanmar), Cambodia, Laos, and Vietnam.

It is a geo-political and economic organization of ten countries located in Southeast Asia

covers a land area of 4.46 million km², which is 3% of the total land area of Earth

population of approximately 600 million people, which is 8.8% of the world's population

sea area of ASEAN is about three times larger than its land counterpart

If ASEAN were a single entity, it would rank as the tenth largest economy in the world, behind the United States, China, Japan, India, Germany, Russia, France, Canada, Spain, Brazil, the United Kingdom, and Italy.

As set out in the ASEAN Declaration, the aims and purposes of ASEAN are:

To accelerate the economic growth, social progress and cultural development in the region through joint endeavours in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of Southeast Asian Nations;

To promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter;

To promote active collaboration and mutual assistance on matters of common interest in the economic, social, cultural, technical, scientific and administrative fields;

To provide assistance to each other in the form of training and research facilities in the educational, professional, technical and administrative spheres;

To collaborate more effectively for the greater utilization of their agriculture and industries, the expansion of their trade, including the study of the problems of international commodity trade, the improvement of their transportation and communications facilities and the raising of the living standards of their peoples;

To promote Southeast Asian studies; and To maintain close and beneficial cooperation with existing

international and regional organizations with similar aims and purposes

FUNDAMENTAL PRINCIPLESIn their relations with one another, the ASEAN Member States have adopted the following fundamental principles, as contained in the Treaty of Amity and Cooperation in Southeast Asia (TAC) of 1976:

1. Mutual respect for the independence, sovereignty, equality, territorial integrity, and national identity of all nations;

2. The right of every State to lead its national existence free from external interference, subversion or coercion;

3. Non-interference in the internal affairs of one another;4. Settlement of differences or disputes by peaceful manner;5. Renunciation of the threat or use of force; and6. Effective cooperation among themselves.

3 PILLARS OF THE ASEAN COMMUNITY (Community Councils)

1. ASEAN Political-Security CommunityThe APSC shall aim to ensure that countries in the region live at peace with one another and with the world in a just, democratic and harmonious environment.

The members of the Community pledge to rely exclusively on peaceful processes in the settlement of intra-regional differences and regard their security as fundamentally linked to one another and bound by geographic location, common vision and objectives. It has the following components: political development; shaping and sharing of norms; conflict prevention; conflict resolution; post-conflict peace building; and implementing mechanisms.The APSC Blueprint envisages ASEAN to be a rules-based Community of shared values and norms; a cohesive, peaceful, stable and resilient region with shared responsibility for comprehensive security; as well as a dynamic and outward-looking region in an increasingly integrated and interdependent world.The APSC Blueprint is guided by the ASEAN Charter and the principles and purposes contained therein. It provides a roadmap and timetable to establish the APSC by 2015. The APSC Blueprint was adopted by the ASEAN Leaders at the 14th ASEAN Summit on 1 March 2009 in Cha-am/Hua Hin, Thailand.

2. ASEAN Economic CommunityThe ASEAN Leaders adopted the ASEAN Economic Blueprint at the 13th ASEAN Summit on 20 November 2007 in Singapore to serve as a coherent master plan guiding the establishment of the ASEAN Economic Community 2015.

The ASEAN Economic Community (AEC) shall be the goal of regional economic integration by 2015. AEC envisages the following key characteristics: (a) a single market and production base, (b) a highly competitive economic region, (c) a region of equitable economic development, and (d) a region fully integrated into the global economy.The AEC areas of cooperation include human resources development and capacity building; recognition of professional qualifications; closer consultation on macroeconomic and financial policies; trade financing measures; enhanced infrastructure and communications connectivity; development of electronic transactions through e-ASEAN; integrating industries across the region to promote regional sourcing; and enhancing private sector involvement for the building of the AEC. In short, the AEC will transform ASEAN into a region with free movement of goods, services, investment, skilled labour, and freer flow of capital.

3. ASEAN Socio-Cultural Community

The ASCC Blueprint was adopted by the ASEAN Leaders at the 14th ASEAN Summit on 1 March 2009 in Cha-am/Hua Hin, Thailand.The ASEAN Socio-Cultural Community aims to contribute to realising an ASEAN Community that is people-oriented and socially responsible with a view to achieving enduring solidarity and unity among the peoples and Member States of ASEAN. It seeks to forge a common identity and build a caring and sharing society which is inclusive and where the well-being, livelihood, and welfare of the peoples are enhanced.ASCC is focused on nurturing the human, cultural and natural resources for sustained development in a harmonious and people-oriented ASEAN.

The ASCC Blueprint represents the human dimension of ASEAN cooperation and upholds ASEAN commitment to address the region's aspiration to lift the quality of life of its peoples.

ASEAN CHARTERThe ASEAN Charter serves as a firm foundation in achieving the ASEAN Community by providing legal status and institutional framework for ASEAN. It also codifies ASEAN norms, rules and values; sets clear targets for ASEAN; and presents accountability and compliance.The ASEAN Charter entered into force on 15 December 2008. A gathering of the ASEAN Foreign Ministers was held at the ASEAN Secretariat in Jakarta to mark this very historic occasion for ASEAN.

In effect, the ASEAN Charter has become a legally binding agreement among the 10 ASEAN Member States.The Charter would give ASEAN a legal personality under international law and help to turn it into more of a rules based organization, thus assisting with the implementation of its commitments to reform. It would clarify the functions and areas of competence of key ASEAN bodies and their relationship with one another in the overall ASEAN structureFurthermore, a Charter would enable ASEAN to assert itself more effectively in the pursuit of its agenda outside of the region, for instance easing the legal process in the making of free trade agreements and enabling ASEAN to acquire the appropriate status for participation in international intergovernmental meetings.Principles set out in the charter include:

Emphasizing the centrality of ASEAN in regional cooperation.

Respect for the principles of territorial integrity, sovereignty, non-interference and national identities of ASEAN members.

Promoting regional peace and identity, peaceful settlements of disputes through dialogue and consultation, and the renunciation of aggression.

Upholding international law with respect to human rights, social justice and multilateral trade.

Encouraging regional integration of trade.

Appointment of a Secretary-General and Permanent Representatives of ASEAN.

Establishment of a human rights body and an unresolved dispute mechanism, to be decided at ASEAN Summits.

Development of friendly external relations and a position with the UN (like the EU)

Increasing the number of ASEAN summits to twice a year and the ability to convene for emergency situations.

Reiterating the use of the ASEAN flag, anthem, emblem and national ASEAN day on August 8.

MEMBER STATES OF THE ASEAN

NON-MEMBER STATES OF THE ASEAN

The Enlargement of the Association of Southeast Asian Nations is the process of expanding the Association of Southeast Asian Nations (ASEAN) through the accession of new member states. This process began with ASEAN's five original members, who founded the association through the signing of Bangkok Declaration in 1967. Since then, the ASEAN's membership has grown to ten with the most recent expansion to Cambodia in 1999.Currently, two states are seeking accession to ASEAN, Papua New Guinea and East Timor

Criteria for MembershipOne of the criteria is that a prospective member must agree to subscribe or accede to all the treaties, declarations and agreements in ASEAN, starting with those outlined in the Bangkok Declaration of August 8, 1967 and those elaborated and developed in various subsequent treaties, declarations and agreements of ASEAN. One common concern that must be addressed through negotiations is the ability of a prospective member to participate in ASEAN Free Trade Area and all other economic cooperation arrangements. One important means of orientation for a prospective member is its attendance at ASEAN meetings and participation in cooperation projects.Bangkok Declaration lays down no conditions for membership other than location in Southeast Asia and the usual principles of inter-state relations. ASEAN has no membership criteria related to the character of government, ideological system and orientation, economic policy, or level of development. If there were such criteria for membership, a regional association would not be possible in Southeast Asia, given its diversity. To be admitted as ASEAN member state, a state must maintain embassies in all current member countries of the bloc.

CANDIDATE STATESPapua New Guinea Has been an observer of the regional bloc since 1976, earlier than any other non-original members of ASEAN. Papua New Guinea, a country usually considered to be outside Southeast Asia, was granted observer status because their admission was carried out before the

enactment of a 1983 decision limiting membership to only Southeast Asian countries.Geographical location somewhat hinders PNG's admission to ASEAN. Although located no farther away from Jakarta, headquarter of ASEAN, than northern Myanmar, PNG isn't geographically part of Southeast Asia, nor the continent of Asia. It was granted observer status in 1976 and since then, it has languished in a 35-year-long purgatory awaiting permission to become a full member.

East Timor

In March 2011 East Timor submitted a membership application to the ASEAN. The lack of consensus on the question of its membership has prevented ASEAN from arriving at decisions on ASEAN observer status for East Timor and its accession to the Treaty of Amity and Cooperation. The treaty makes clear distinctions between the rights of regional and non-regional signatories, but whether East Timor a part of the region is debatable.Singaporean Prime Minister Loong objected in late 2011 to East Timor's membership, due to his desire to achieve economic integration by 2015, which the relatively less developed East Timor would make difficult.Some member states are concerned that, having experienced the entry of four relatively underdeveloped members, ASEAN would be admitting an even poorer one.

THE ASEAN PLUS THREEThe ASEAN Plus Three is a meeting between ASEAN, China, Japan, and South Korea, and is primarily held during each ASEAN Summit. It is a forum that functions as a coordinator of cooperation between the ASEAN and the three East Asia nations of China, Japan, and South Korea. Government leaders, ministers, and senior officials from the 10 members of the ASEAN and the three Northeast Asian states consult on an increasing range of issues. The group's significance and importance was strengthened by the Asian Financial Crisis. In response to the crisis, ASEAN closely cooperated with China, Japan, and ROK. Since the implementation of the Joint Statement on East Asia Cooperation in 1999 at the Manila Summit, APT finance ministers have been holding periodic consultations.Since the process began in 1997, ASEAN Plus Three (APT) cooperation has broadened and deepened to also focus on subjects other than finance too in the discussion such as the areas of food and energy security, financial cooperation, trade facilitation, disaster management, people-to-people contacts, narrowing the development gap, rural development and poverty alleviation, human trafficking, labour movement, communicable diseases, environment and sustainable development, and transnational crime, including counter-terrorism.

EAST ASIA SUMMIT 2012 ASEAN Members

Indonesia Malaysia Philippines Singapore Thailand Brunei Burma (Myanmar) Cambodia Laos Vietnam

The plus three: China Japan South Korea

Australia India New Zealand

Russia United States

After the EAS was established the issue arose of whether any future East Asia Community would arise from the EAS or ASEAN Plus Three. Prior to the creation of the EAS it appeared that ASEAN Plus Three would take the role of community building in East Asia.The Ministers welcomed the convening of the East Asia Summit as a forum for dialogue on broad strategic, political and economic issues of common interest with the aim of promoting peace, stability and economic prosperity in East Asia. In this respect, they recognized that the East Asia Summit could make a significant contribution to the achievement of the long-term goal of establishing an East Asian community.It appeared that over time following the first EAS the focus was less on whether the EAS has a role in community building to what the role and whether it was secondary to ASEAN Plus Three.The relationship between the EAS on the one hand and ASEAN Plus Three on the other is still not clear. Some countries are more supportive of the narrower ASEAN Plus Three grouping whereas others support the broader, more inclusive EAS. ASEAN Plus Three, which has been meeting since December 1997 has a history, including the Chiang Mai initiative which appears to have led to the development of the Asian Currency Unit. This may be significant for those advocating a broader role for EAS in the future.

ASEAN REGIONAL FORUMThe ASEAN Regional Forum is an informal multilateral dialogue of 27 members that seeks to address security issues in the Asia-Pacific region.The list includes the members of the East Asia Summit plus:

Bangladesh Canada Mongolia North Korea Pakistan

DECISION-MAKING PROCESS The ASEAN Secretariat , chaired by the Secretary-General of

ASEAN, is mandated to “initiate, advise, coordinate, and implement ASEAN activities.”  The operational budget of the ASEAN Secretariat is prepared annually and funded through equal contribution of all ASEAN Member Countries. 

ASEAN has 11 Dialogue Partners, mainly Australia, Canada, China, European Union, India, Japan, New Zealand, Republic of Korea, the Russian Federation, the United States and the United Nations Development Programme. In fact, ASEAN makes decisions based on consensus and consultations.   Other innovative ways of carrying out decisions are also employed as and when necessary and agreed upon.

ASEAN’s decision making process features its own hierarchy, divided into Tracks.Track I encompasses all official decisions made by diplomatic representatives of the member states. Track II deals with hypothetical policies proposed mainly by think tanks and academic institutions, essentially serving as a forum for potential ideas. Track III is also a forum, one that consists of civil society groups and special-interest lobbies.Though this structure implies the possibility of citizens‘ ideas trickling up to the inter-governmental level, the reality is that most of ASEAN’s decisions are made by senior officials, independently of the represented masses‘ knowledge.ICHONG VS. HERNANDEZFACTS:Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main provisions of the Act are:(1) a prohibition against persons, not citizens of the Philippines, and against associations, partnerships, or corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade;(2) an exception from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engage therein, unless their licenses are forfeited in

accordance with the law, until their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the expiration of term in case of juridical persons;(3) an exception therefrom in favor of citizens and juridical entities of the United States;(4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization, economic control weights and measures and labor and other laws relating to trade, commerce and industry;(5) a prohibition against the establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business,(6) a provision requiring aliens actually engaged in the retail business to present for registration with the proper authorities a verified statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities and their offices and principal offices of juridical entities; and(7) a provision allowing the heirs of aliens now engaged in the retail business who die, to continue such business for a period of six months for purposes of liquidation.ISSUE:1. WON the Act deprives the aliens of the equal protection of the laws?2. WON there was a violated international treaties and obligations?HELD:1. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exists for making a distinction between those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.)2. The law does not violate international treaties and obligations. The United Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Jans Kelsen, The Law of the United Nations, 1951 ed., pp. 29-32), 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. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 guarantees equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other country". But the nationals of China are not discriminated against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all Prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law (U.S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the scope of the police power of the State (Palston vs. Pennsylvania 58 L. ed., 539).Underhill vs. Hernandez168 US 250Facts:In the early part of 1892 a revolution was initiated in Venezuela, against the administration thereof, which the revolutionists claimed had ceased to be the legitimate government. The principal parties to this conflict were those who recognized Palacio as their head, and those who followed the leadership of Crespo. Gen. Hernandez belonged to the antiadministration party, and commanded its forces in the vicinity of Ciudad Bolivar. On the 8th of August, 1892, an engagement took place between the arimes of the two parties at Buena Vista, some seven miles from Bolivar, in which the troops under Hernandez prevailed; and, on the 13th of August, Hernandez entered Bolivar, and assumed command of the city. All of the local officials had in the meantime left, and the vacant positions were filled by Gen. Hernandez, who from that date, and during the period of the

transactions complained of, was the civil and military chief of the city and district. In October the party in revolt had achieved success generally, taking possession of the capital of Venezuela, October 6th; and on October 23, 1892, the 'Crespo government,' so called, was formally recognized as the legitimate government of Venezuela by the United States.George F. Underhill was a citizen of the United States, who had constructed a waterworks system for the city of Bolivar, under a contract with the government, and was engaged in supplying the place with water; and he also carried on a machiney repair business. Some time after the entry of Gen. Hernandez, Underhill applied to him, as the officer in command, for a passport to leave the city. Hernandez refused this request, and requests made by others in Underhill's behalf, until October 18th, when a passport was given, and Underhill left the country. This action was brought to recover damages for the detention caused by reason of the refusal to grant the passport, for the alleged confinement of Underhill to his own house, and for certain alleged assaults and affronts by the soldiers of Hernandez's army.Issue:1. WON Gen. Hernandez can be held liable?2. If the case can be tried in the US?Held:1. No, Underhill is not entitled to recover, and directed a verdict for defendant, on the ground that the acts of defendant were those of a military commander, representing a de facto government in the prosecution of a war, he was not civilly responsible.2. 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 own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.Nor can the principle be confined to lawful or recognized governments, or to cases where redress can manifestly be had through public channels. The immunity of individuals from suits brought in foreign tribunals for acts done within their own states, in the exercise of governmental authority, whether as civil officers or as military commanders, must necessarily extend to the agents of governments ruling by paramount force as matter of fact. Where a civil war prevails (that is, where the people of a country are divided into two hostile parties, who take up arms and oppose one another by military, generally speaking, foreign nations do not assume to judge of the merits of the quarrel. If the party seeking to dislodge the existing government succeeds, and the independence of the government it has set up is recognized, then the acts of such government, from the commencement of its existence, are regarded as those of an independent nation. If the political revolt fails of success, still, if actual war has been waged, acts of legitimate warfare cannot be made the basis of individual liability.We entertain no doubt, upon the evidence, that Hernandez [168 U.S. 250, 254] was carrying on military operations in support of the revolutionary party. It may be that adherents of that side of the controversy in the particular locality where Hernandez was the leader of the movement entertained a preference for him as the future executive head of the nation, but that is beside the question. The acts complained of were the acts of a military commander representing the authority of the revolutionary party as a government, which afterwards succeeded, and was recognized by the United States. We think the circuit court of appeals was justified in concluding 'that the acts of the defendant were the acts of the government of Venezuela, and as such are not properly the subject of adjudication in the courts of another government.'There are a number of ways of looking at the World Trade Organization. It is an organization for trade opening. It is a forum for governments to negotiate trade agreements. It is a place for them to settle trade disputes. It operates a system of trade rules. Essentially, the WTO is a place where member governments try to sort out the trade problems they face with each other.Who we are?The WTO was born out of negotiations, and everything the WTO does is the result of negotiations. The bulk of the WTO’s current work

comes from the 1986–94 negotiations called the Uruguay Round and earlier negotiations under the General Agreement on Tariffs and Trade (GATT). The WTO is currently the host to new negotiations, under the ‘Doha Development Agenda’ launched in 2001.Where countries have faced trade barriers and wanted them lowered, the negotiations have helped to open markets for trade. But the WTO is not just about opening markets, and in some circumstances its rules support maintaining trade barriers for example, to protect consumers or prevent the spread of disease.At its heart are the WTO agreements, negotiated and signed by the bulk of the world’s trading nations. These documents provide the legal ground rules for international commerce. They are essentially contracts, binding governments to keep their trade policies within agreed limits. Although negotiated and signed by governments, the goal is to help producers of goods and services, exporters, and importers conduct their business, while allowing governments to meet social and environmental objectives.The system’s overriding purpose is to help trade flow as freely as possible so long as there are no undesirable side effects because this is important for economic development and well-being. That partly means removing obstacles. It also means ensuring that individuals, companies and governments know what the trade rules are around the world, and giving them the confidence that there will be no sudden changes of policy. In other words, the rules have to be ‘transparent’ and predictable.Trade relations often involve conflicting interests. Agreements, including those painstakingly negotiated in the WTO system, often need interpreting. The most harmonious way to settle these differences is through some neutral procedure based on an agreed legal foundation. That is the purpose behind the dispute settlement process written into the WTO agreements.What we do?The WTO is run by its member governments. All major decisions are made by the membership as a whole, either by ministers (who usually meet at least once every two years) or by their ambassadors or delegates (who meet regularly in Geneva).While the WTO is driven by its member states, it could not function without its Secretariat to coordinate the activities. The Secretariat employs over 600 staff, and its experts — lawyers, economists, statisticians and communications experts — assist WTO members on a daily basis to ensure, amongother things, that negotiations progress smoothly, and that the rules of international trade are correctly applied and enforced.1 Trade negotiationsThe WTO agreements cover goods, services and intellectual property. They spell out the principles of liberalization, and the permitted exceptions. They include individual countries’ commitments to lower customs tariffs and other trade barriers, and to open and keep open services markets. They set procedures for settling disputes. These agreements are not static; they are renegotiated from time to time and new agreements can be added to the package. Many are now being negotiated under the Doha Development Agenda, launched by WTO trade ministers in Doha, Qatar, in November 2001.2 Implementation and monitoringWTO agreements require governments to make their trade policies transparent by notifying the WTO about laws in force and measures adopted. Various WTO councils and committees seek to ensure that these requirements are being followed and that WTO agreements are being properly implemented. All WTO members must undergo periodic scrutiny of their trade policies and practices, each review containing reports by the country concerned and the WTO Secretariat.3 Dispute settlementThe WTO’s procedure for resolving trade quarrels under the Dispute Settlement Understanding is vital for enforcing the rules and therefore for ensuring that trade flows smoothly. Countries bring disputes to the WTO if they think their rights under the agreements are being infringed. Judgements by specially appointed independent experts are based on interpretations of the agreements and individual countries’ commitments.4 Building trade capacity

WTO agreements contain special provision for developing countries, including longer time periods to implement agreements and commitments, measures to increase their trading opportunities, and support to help them build their trade capacity, to handle disputes and to implement technical standards. The WTO organizes hundreds of technical cooperation missions to developing countries annually. It also holds numerous courses each year in Geneva for government officials. Aid for Trade aims to help developing countries develop the skills and infrastructure needed to expand their trade.5 OutreachThe WTO maintains regular dialogue with non-governmental organizations, parliamentarians, other international organizations, the media and the general public on variousaspects of the WTO and the ongoing Doha negotiations, with the aim of enhancing cooperation and increasing awareness of WTO activities.What we stand for?The WTO agreements are lengthy and complex because they are legal texts covering a wide range of activities. But a number of simple, fundamental principles run throughout all of these documents. These principles are the foundation of the multilateral trading system.1 Non-discriminationA country should not discriminate between its trading partners and it should not discriminate between its own and foreign products, services or nationals.2 More openLowering trade barriers is one of the most obvious ways of encouraging trade; these barriers include customs duties (or tariffs) and measures such as import bans or quotas that restrict quantities selectively.3 Predictable and transparentForeign companies, investors and governments should be confident that trade barriers should not be raised arbitrarily. With stability and predictability, investment is encouraged, jobs are created and consumers can fully enjoy the benefits of competition — choice and lower prices.4 More competitiveDiscouraging ‘unfair’ practices, such as export subsidies and dumping products at below cost to gain market share; the issues are complex, and the rules try to establish what is fair or unfair, and how governments can respond, in particular by charging additional import duties calculated to compensate for damage caused by unfair trade.5 More beneficial for less developed countriesGiving them more time to adjust, greater flexibility and special privileges; over three-quarters of WTO members are developing countries and countries in transition to market economies. The WTO agreements give them transition periods to adjust to the more unfamiliar and, perhaps, difficult WTO provisions.6 Protect the environmentThe WTO’s agreements permit members to take measures to protect not only the environment but also public health, animal health and plant health. However, these measures must be applied in the same way to both national and foreign businesses. In other words,members must not use environmental protection measures as a means of disguising protectionist policies.Mission StatementThe World Trade Organization — the WTO — is the international organization whose primary purpose is "to open trade for the benefit of all."The WTO provides a forum for negotiating agreements aimed at reducing obstacles to international trade and ensuring a level playing field for all, thus contributing to economic growth and development. The WTO also provides a legal and institutional framework for the implementation and monitoring of these agreements, as well as for settling disputes arising from their interpretation and application. The current body of trade agreements comprising the WTO consists of 16 different multilateral agreements (to which all WTO members are parties) and two different plurilateral agreements (to which only some WTO members are parties).Over the past 60 years, the WTO, which was established in 1995, and its predecessor organization the GATT have helped to create a strong

and prosperous international trading system, thereby contributing to unprecedented global economic growth. The WTO currently has 158 members, of which 117 are developing countries or separate customs territories. WTO activities are supported by a Secretariat of some 700 staff, led by the WTO Director-General. The Secretariat is located in Geneva, Switzerland, and has an annual budget of approximately CHF 200 million ($180 million, €130 million). The three official languages of the WTO are English, French and Spanish.Decisions in the WTO are generally taken by consensus of the entire membership. The highest institutional body is the Ministerial Conference, which meets roughly every two years. A General Council conducts the organization's business in the intervals between Ministerial Conferences. Both of these bodies comprise all members. Specialised subsidiary bodies (Councils, Committees, Sub-committees), also comprising all members, administer and monitor the implementation by members of the various WTO agreements.More specifically, the WTO's main activities are:* negotiating the reduction or elimination of obstacles to trade (import tariffs, other barriers to trade) and agreeing on rules governing the conduct of international trade (e.g. antidumping, subsidies, product standards, etc.);* administering and monitoring the application of the WTO's agreed rules for trade in goods, trade in services, and trade-related intellectual property rights;* monitoring and reviewing the trade policies of our members, as well as ensuring transparency of regional and bilateral trade agreements;* settling disputes among our members regarding the interpretation and application of the agreements;* building capacity of developing country government officials in international trade matters;* assisting the process of accession of some 30 countries who are not yet members of the organization;* conducting economic research and collecting and disseminating trade data in support of the WTO's other main activities;* explaining to and educating the public about the WTO, its mission and its activities;The WTO's founding and guiding principles remain the pursuit of open borders, the guarantee of most-favoured-nation principle and non-discriminatory treatment by and among members, and a commitment to transparency in the conduct of its activities. The opening of national markets to international trade, with justifiable exceptions or with adequate flexibilities, will encourage and contribute to sustainable development, raise people's welfare, reduce poverty, and foster peace and stability. At the same time, such market opening must be accompanied by sound domestic and international policies that contribute to economic growth and development according to each member's needs and aspirations.UNDERSTANDING OF THE WTO AS AN ORGANIZATION(In reference with the organizational chart, see WTO Structure above page)The WTO is ‘member-driven’, with decisions taken by consensus among all member governments.The WTO is run by its member governments. All major decisions are made by the membership as a whole, either by ministers (who meet at least once every two years) or by their ambassadors or delegates (who meet regularly in Geneva). Decisions are normally taken by consensus.In this respect, the WTO is different from some other international organizations such as the World Bank and International Monetary Fund. In the WTO, power is not delegated to a board of directors or the organization’s head.When WTO rules impose disciplines on countries’ policies, that is the outcome of negotiations among WTO members. The rules are enforced by the members themselves under agreed procedures that they negotiated, including the possibility of trade sanctions. But those sanctions are imposed by member countries, and authorized by the membership as a whole. This is quite different from other agencies whose bureaucracies can, for example, influence a country’s policy by threatening to withhold credit.Reaching decisions by consensus among some 150 members can be difficult. Its main advantage is that decisions made this way are more

acceptable to all members. And despite the difficulty, some remarkable agreements have been reached. Nevertheless, proposals for the creation of a smaller executive body — perhaps like a board of directors each representing different groups of countries are heard periodically. But for now, the WTO is a member-driven, consensus-based organization.* Highest authority: The Ministerial Conference> It has to meet at least once (1) every two (2) years. The Ministerial Conference can take decisions on all matters under any of the multilateral trade agreements.* Second level: General Council> Day to day work in between the ministerial conferences is handled by 3 bodies:* The General Council; The Dispute Settlement Body; and The Trade Policy Review Policy* All three are in fact the same — the Agreement Establishing the WTO states they are all the General Council, although they meet under different terms of reference. Again, all three consist of all WTO members. They report to the Ministerial Conference.* The General Council acts on behalf of the Ministerial Conference on all WTO affairs. It meets as the Dispute Settlement Body and the Trade Policy Review Body to oversee procedures for settling disputes between membersand to analyse members’ trade policies.* Third level: Councils for each broad area of trade, services and related aspects of IPR> Three more councils, each handling a different broad area of trade, report to the General Council:* The Council for Trade in Goods (Goods Council)* The Council for Trade in Services (Services Council)* The Council for Trade - Related Aspects of Intellectual Property Rights (TRIPS Council)* As their names indicate, the three are responsible for the workings of the WTO agreements dealing with their respective areas of trade. Again they consist of all WTO members. The three also have subsidiary bodies.* Six other bodies report to the General Council. The scope of their coverage is smaller, so they are “committees”. But they still consist of all WTO members. They cover issues such as trade and development, the environment, regional trading arrangements, and administrative issues. The Singapore Ministerial Conference in December 1996 decided to create new working groups to look at investment and competition policy, transparency in government procurement, and trade facilitation.* Two more subsidiary bodies dealing with the plurilateral agreements (which are not signed by all WTO members) keep the General Council informed of their activities regularly.** Fourth Level: Down to nitty-gritty> Each of the higher level councils has subsidiary bodies. The Goods Councilhas 11 committees dealing with specific subjects (such as agriculture, market access, subsidies, anti-dumping measures and so on). Again, these consist of all member countries. Also reporting to the Goods Council is the Textiles Monitoring Body, which consists of a chairman and 10 members acting in their personal capacities, and groups dealing with notifications (governments informing the WTO about current and new policies or measures) and state trading enterprises.> The Services Council’s subsidiary bodies deal with financial services, domestic regulations, GATS rules and specific commitments.> At the General Council level, the Dispute Settlement Body also has two subsidiaries: the dispute settlement “panels” of experts appointed to adjudicate on unresolved disputes, and the Appellate Body that deals with appeals.Observer governments Afghanistan Algeria Andorra Azerbaijan Bahamas Belarus Bhutan Bosnia and Herzegovina Comoros Equatorial Guinea Ethiopia Holy See (Vatican) Iran Iraq Kazakhstan Lebanese Republic Liberia, Republic of Libya Sao Tomé and Principe Serbia Seychelles Sudan Syrian Arab Republic Uzbekistan YemenAccessionsAny state or customs territory having full autonomy in the conduct of its trade policies may become a member (“accede to”) the WTO, but all WTO members must agree on the terms. This is done through the

establishment of a working party of WTO members and through a process of negotiations.Basis: Legal Provisions on becoming a member of the WTOArticle XII of the Marrakesh agreement establishing the world trade organization deals with accession. The full text of this provision reads as follows:“1. Any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement, on terms to beagreed between it and the WTO. Such accession shall apply to this Agreement and the Multilateral Trade Agreements annexed thereto.2. Decisions on accession shall be taken by the Ministerial Conference. The Ministerial Conference shall approve the agreement on the terms of accession by a two-thirds majority of the Members of the WTO.3. Accession to a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement.”Perhaps the most striking thing about WTO Article XII is its brevity. It gives no guidance on the “terms to be agreed”, these being left to negotiations between the WTO Members and the applicant. Nor does it lay down any procedures to be used for negotiating these terms, these being left to individual Working Parties to agree. These have evolved separately as will be seen in the next section of this paper. In this, it follows closely the corresponding Article XXXIII of GATT 1947.A number of other WTO provisions are relevant to accession — for instance:Article XVI.1, lays down that “Except as otherwise provided under this Agreement or the Multilateral Trade Agreements, the WTO shall be guided by the decisions, procedures and customary practices followed by the CONTRACTING PARTIES to GATT 1947 and the bodies established in the framework of GATT 1947”;Article XII:2 states that “Decisions on accession shall be taken by the Ministerial Conference”, Article IV:2 makes it clear that “In the intervals between meetings of the Ministerial Conference, its functions shall be conducted by the General Council”;Article IX deals with decision-making. On 15 November 1995 the General Council agreed to procedures regarding decision-making under Articles IX and XII of the WTO Agreement which clarified the relation between these two provisions (WT/GC/M/8, page 6);Article XIII provides that:“1. This Agreement and the Multilateral Trade Agreements in Annexes 1 and 2 shall not apply as between any Member and any other Member if either of the Members, at the time either becomes a Member, does not consent to such application.....

2. Paragraph 1 shall apply between a Member and another Member which has acceded under Article XII only if the Member not consenting to the application has so notified the Ministerial Conference before the approval of the agreement on the terms of accession by the Ministerial Conference.”

HOLY SEE v. ROSARIOFACTS:This petition arose from a controversy over a parcel of land consisting of 6,000 square meters located in the Municipality of Paranaque.  Said lot was contiguous with two other lots.  These lots were sold to Ramon Licup.  In view of the refusal of the squatters to vacate the lots sold, a dispute arose as to who of the parties has the responsibility of evicting and clearing the land of squatters.  Complicating the relations of the parties was the sale by petitioner of the lot of concern to Tropicana.

ISSUE:Whether the Holy See is immune from suit insofar as its business relations regarding selling a lot to a private entity

RULING:As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted principles of International Law.  Even without this affirmation, such principles of International Law are deemed incorporated as part of the law of the land as a condition

and consequence of our admission in the society of nations.  In the present case, if petitioner has bought and sold lands in the ordinary course of real estate business, surely the said transaction can be categorized as an act jure gestionis.  However, petitioner has denied that the acquisition and subsequent disposal of the lot were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. 

The Holy See is immune from suit for the act of selling the lot of concern is non-proprietary in nature.  The lot was acquired by petitioner as a donation from the Archdiocese of Manila.  The donation was made not for commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio.  The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character.  Petitioner did not sell the lot for profit or gain.  It merely wanted to dispose of the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation.

• Spratly IslandsConflict over territory

• Location • Background Information• Consists of more than 750 reefs, islets, atolls, cays and

islands, over 600 coral reefs• Total < 4km of land• Spread over 425000 sq km of sea• Important in establishing international boundaries• Rich fishing areas• Rich in natural resources such as oil and gas• History • 600BC to 3 BC - Chinese maps recorded the Spratly islands,

and considered it within their national boundaries.• 1834 - Vietnam included the Spratly Islands within their

maps.• China and Vietnam laid claim to the Spratly Islands

simultaneously, but neither side knew that each other had charted and claimed the Spratly Islands

• In 1968, the Philippines started to take their claims a bit more seriously and stationed troops on three islands.

• In 1973 Vietnamese troops were stationed on five islands. • History • Claiming storm damage, 7 Chinese naval vessels entered the

area to repair "fishing shelters" in Panganiban Reef.• Malaysia erected a structure on Investigator Shoal and

landed at Rizal Reef.• In response the Philippines lodged formal protests,

demanded the removal of the structures, increased naval patrols in Kalayaan and issued invitations to American politicians to inspect the PRC bases by plane.

• Early 21st century• 5th March 2002• Proposal for a free trade area• Resolve the problem of sovereignty "without further use of

force“• Parties may also explore or undertake cooperative activities

such as marine environmental protection; marine scientific research; safety of navigation and communication at sea; search and rescue operation; and combating transnational crime.

• Agreements• ASEAN and PRC agreement where one country would

inform the other of any military movement within the disputed territory and that there would be no further construction.

• The agreement was violated soon by China and Malaysia. • UNCLOS • The United Nations Convention on the Law of the Sea

(UNCLOS) procedure for countries with coastlines to submit claims for their continental shelf to be extended beyond 200 nautical miles of their shores brought the spotlight back to the South China Sea and Spratly Islands in May 2009.

• UNCLOS • Two such submissions were by Vietnam, and another jointly

by Vietnam and Malaysia for a joint claim. • Brunei has not submitted such a claim but notified the UN

it’s intention to claim a continental shelf beyond 200 nautical miles from its shores.

• China immediately issued protests over the two submissions and called on the United Nations not to consider them. It also issued a stern warning to countries not to claim the islands which it said were its sovereign territory.

• 5 Countries involved in the conflicts (Main-Players) • China • China claimed possession of all of the islands in the Spratly

region. • China entered the dispute in three phases.• The first phase encompassed China's claim to the Paracel

Islands (North of the Spratly Islands) in the 1950s. • The second phase took place in 1974, when China seized the

Paracel Islands from Vietnam. • The third phase began on 14 March 1988, with China's

military engagement with Vietnamese forces over the removal of China's flag from a newly claimed shoal. The military clash resulted in China gaining possession of 6 islands in the Spratly region.

• China • China's claim to all islands in the Spratly archipelago stems

from its historical presence in the region, dating as far back as the Han dynasty of the 2nd century, BC.

• According to Marcus Hall's evaluation, China's historical claim is dubious and neglects similar historical claims by Taiwan, Vietnam and Malaysia. Moreover, China's historical interpretation of its sovereignty rights ignores current international law.

• The Philippines • The Philippines claim approximately 60 of islands in the

Spratly region. • Joint exploration with Royal Dutch/Shell Group and Alcorn

International near the Palawan Island will raise the Philippines annual oil production from the 3,000 b/d produced in 1991 from 7 wells in the South China Sea.

• Vietnam • Vietnam claims part of the islands in the Spratly region.• Vietnam's only oil well in production as of 1991 is the

White Tiger field, 400 km west of the Crestone block. • In 1992, however, Vietnam hastened leasing to foreign

exploration. • Taiwan • Like China, Taiwan claims all of the islands in the Spratly

region. • The Spratly Islands are strategically important to Taiwan

for two reasons:1) Important shipping lanes pass through waters surrounding the Spratly Islands2) The South China Sea which has an abundant supply of fish. Thus, Taiwan feels compelled to protect its interests.

• Malaysia • Malaysia is the earliest oil operator in the sea and claims 3

islands and 4 rock groups in the Spratly region. • As of 1992, Malaysia was running 90 oil- producing wells,

with $210 million planned for further development between 1992 and 1995.

• Brunei • Brunei claims the Louisa Reef in the Spratly region, located

adjacent to its coastline. • Brunei became an active player in the Spratly disputes only

during the recent years. Production of its 9 oil fields in the South China Sea hovers around 143,000 b/d.

• Other countries that had played a part in the conflicts indirectly (Side-Players)

• United States

• The United States could become involved on two fronts -- commercial and military.

• U.S. businesses participating in off-shore exploration in the disputed islands have a commercial stake in how inter-state tension and disputed claims are resolved.

• On the military side, the United States has a mutual defense pact with the Philippines, yet analysts indicate the Spratly disputes are unlikely to invoke the pact.

• The United States would, however, likely take action if maritime activity was restricted in a manner inconsistent with international law.

• Japan • Japan ,like the United States, has a vested interest in the

resolution of the Spratly disputes. • The disputed region is located near Japan's principal oil

imports' shipping lanes. • Moreover, Japanese companies are involved in some of the

exploration endeavors in the disputed territory. • ASEAN • ASEAN members are concerned that the U.S. withdrawal of

military troops from the region and the Soviet Union's disintegration will leave the region without a counterbalance to China.

• Although many western analysts view China's military capabilities as obsolete, China's military power in the ASEAN region is still superior, both quantitatively and qualitatively.

International Criminal Court A Presentation by Gio Limjoco WHAT IS IT? International Criminal Court (ICC), governed by the Rome

Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.

It is an independent international organization, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands.

The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial systm unless the national proceedings are not genuine.

History In the 20th century, the international community reached

consensus on definitions of genocide, crimes against humanity and war crimes. The Nuremberg and Tokyo trials addressed war crimes, crimes against peace, and crimes against humanity committed during the Second World War.

In the 1990s, tribunals like the International Criminal Tribunal for the former Yugoslavia and for Rwanda were the result of consensus that impunity is unacceptable. However, they were established to try crimes committed only within a specific time-frame and during a specific conflict, there was general agreement that an independent, permanent criminal court was needed.

Legal basis On 17 July 1998, the international community reached an

historic milestone when 120 States adopted the Rome Statute, which is the legal basis for the creation of the International Criminal Court.

The Rome Statute entered into force on 1 July 2002 after ratification by 60 countries.

As of 1, July 2012, 121 countries are States Parties to the Rome Statute. Of these, 33 are from Africa, 18 from Asia-Pacific, 18 from Eastern Europe, 26 from Latin America and the Caribbean and 25 from Western European and North America.

4 ORGANS OF THE international criminal court The Court is composed of four organs. These are the

Presidency, the judicial Divisions, the Office of the Prosecutor and the Registry.

Presidency

It is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute.

Composed of three judges of the Court, elected to the Presidency by their fellow judges, for a term of three years.

Judicial divisions The Judicial Divisions consist of eighteen judges organized

into the Pre-Trial Division, the Trial Division and the Appeals Division. The judges of each Division sit in Chambers which are responsible for conducting the proceedings of the Court at different stages.

Assignment of judges to Divisions is made on the basis of the nature of the functions each Division performs and the qualifications and experience of the judge. This is done in a manner ensuring that each Division benefits from an appropriate combination of expertise in criminal law and procedure and international law.

Office of the prosecutor This branch is responsible for receiving referrals and any

substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court.

registry This is responsible for the non-judicial aspects of the

administration and servicing of the Court. The Registry is headed by the Registrar who is the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court.

Which crimes fall within it’s jurisdiction? The mandate of the Court is to try individuals rather than

States, and to hold such persons accountable for the most serious crimes of concern to the international community as a whole, namely, the crime of genocide, war crimes, crimes against humanity, and the crime of aggression, when the conditions for the exercise of the Court’s jurisdiction over the latter are fulfilled.

Jurisdiction does not apply retroactively. It can only prosecute crimes committed on or after 1 July 2012 (Rome Statute entered into force)

genocide Genocide” means any of the following acts committed with

the intent to destroy, in whole or in part, a national, ethnical, racial or religious group:

1. killing members of the group; 2. causing serious bodily or mental harm to members of the

group; 3. deliberately inflicting on the group conditions of life

calculated to bring about its physical destruction in whole or in part;

4. imposing measures intended to prevent births within the group;

5. forcibly transferring children of the group to another group.

Crimes against humanity Include any of the following acts committed as part of a

widespread or systematic attack directed against any civilian population, with knowledge of the attack:

Murder, extermination enslavement; deportation or forcible transfer of population; imprisonment; torture; rape, sexual slavery, enforced prostitution, forced

pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;

enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally

causing great suffering or serious bodily or mental injury.

War crimes Include grave breaches of the Geneva Conventions and

other serious violations of the laws and customs applicable in international armed conflict and in conflicts "not of an international character" listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:

murder; mutilation, cruel treatment and torture; taking of hostages; intentionally directing attacks against the civilian

population; intentionally directing attacks against buildings dedicated

to religion, education, art, science or charitable purposes, historical monuments or hospitals;

pillaging; rape, sexual slavery, forced pregnancy or any other form of

sexual violence; conscripting or enlisting children under the age of 15 years

into armed forces or groups or using them to participate actively in hostilities.

Crimes of aggression The planning, preparation, initiation or execution of an act

of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.

The act of aggression includes, among other things, invasion, military occupation, and annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its character, gravity and scale, a manifest violation of the Charter of the United Nations.

The perpetrator of the act of aggression is a person who is in a position effectively to exercise control over or to direct the political or military action of a State.

Requisites for valid exercise of jurisdiction The court exercises jurisdiction only under the following

circumstances. 1. Where the person accused of committing a crime is a national of a state party. (or where the person’s state has accepted the jurisdiction of the court) 2. Where the alleged crime as committed on the territory of a state party. 3. Where a situation is referred to the court by the UN Security Council.

How do cases come before the court? Any State Party to the Rome Statute can request the

Prosecutor to carry out an investigation. A State not party to the Statute can also accept the jurisdiction of the ICC with respect to crimes committed in its territory or by one of its nationals, and request the Prosecutor to carry out an investigation. The United Nations Security Council may also refer a situation to the Court.