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Public International Law (November 21, 2012)
Transcribed by: Ela Velarde
We follow the first principle which is the doctrine of incorporation (as against thedoctrine of transformation) meaning the principles of international law are binding on the stateeven without any express provision in our constitution or law transforming this precepts as
part of the law of the land. The mere membership of a state in the family of nations meansthat it adheres to these principles. These obligations to comply with international law runs withits own existence as a state.
Nonetheless, in our own constitution, we have such a provision making an expressdeclaration of our intention to become binding on these principles under Article II Section 2which provides that The Philippines renounces war as an instrument of national policy, adoptsthe generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
If you can recall, in the creation of these ASEAN, of course, this organization isfounded on similar concepts on the adherence of the member states in Southeast Asia in theobservance of these norms. In fact, the basis for the success of the organization in theconsensus. But, recently in the newspapers, the ASEAN has not reached a consensus preciselybecause of the opposition of the Philippines in relation to our own position vi-s-vis our conflict
with china regarding that part of our waters/territory which we call the Philippine Sea. But thisportion is also being contested to by other claimants in the ASEAN region.
There is this conflict between what is provided in our own law (constitution or statute)as against what is enshrined in international law. Which should prevail in case of such conflict?The general presumption is that the State always adopts its laws always in accord with theprinciples of international law because the members of the international community adhere tothese principles. In the case of Koroda vs. Jalandoni, we made mention that even if thePhilippines was not a signatory to the Hague Convention and in fact the Philippines signed theGeneva convention only in 1947. Nevertheless, as part of the international community, justlike the rest, the Philippines is duty bound to comply even when it was not such a signatory.More so when what is provided in these conventions are merely narrations of existing conceptsof international law or are part of customary law. The presumption here is that the local law ofsuch a state is simply consistent, it adheres to these principles embodied in international law.
But supposing the conflict is real, so which will prevail? We must consider from which
view point. From the view point of international law, certainly international law prevails overwhat is provided in the municipal law and this is consistent with the doctrine of pacta suntservanda which provides that there must be compliance with treaty obligations in good faith.On the other hand, from the view point of national or municipal law, of course what reigns isits paramount self interest. Thats why the president has disclaimed the statement maid by thehead of Cambodia that the ASEAN was able to attain consensus because of the Philippineposition wherein we promote our self or national interest over and above international law.
Really, it is dependent upon the state. Nonetheless, the rule is of course theobservance of these rules of international law. In so many instances, in fact, the Philippineshas promoted these self-interest over what is being provided in existing agreements. So forexample what is provided in a treaty entered into by a state vis-a-vis the protection of theterritorial integrity. If you recall, many years ago, in 1991the abrogation by the Philippinesenate with the treaty regarding the VFA. So what provision in the constitution espouses thesupremacy of our law over what may be declared in a treaty or convention. In 1991 the
senate rejected the extension of the military bases wit the US. The basis is under theconstitution Article 7, Section 21 which provides that No treaty or international agreementshall be valid and effective unless concurred in by at least two-thirds of all the Members of the
Senate. In other words, the constitution itself provides for this mechanism whereby thenational law reigns supreme me over the treaty.
There are so many ways by which a state may in fact promote this self-interest andmay postulate that its law reigns supreme over that obligation coming from a treaty. One wayhere is under the constitution under article 7, section 21the authority of the senate to in factmodify what may be agreed upon or even supersede. you also have in the constitution theauthority of the SC to declare as unconstitutional a treaty. There is such a provision in the
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constitution whereby the SC en banc may declare a treaty as unconstitutional thereby holdingthat the law of the state is supreme over what is prescribed in the treaty. Under article 8,section 5 pertaining to the power of the SC to nullify a treaty.
So what about a question(?) pertaining to a defense treaty. So the basis of the treaty,there is an agreements between states for the holding of a military exercise and theconstitution of the state has in fact a provision prohibiting the establishment of bases, ofholding foreign troops. Which will prevail? Is there such a provision in the Philippine
constitution? Of course, yes, but what is actually prohibited in the permanent basing of foreigntroops. And so where the provision calls only for the temporary engagement and the type ofgovernmental power being performed her is a governmental power or sovereign function.Therefore, it can be justified. There is in fact no violation of the contiution. In the case ofInchong vs. Hernandes: what happened here was that the congress passed this retain tradenationalization law and it is contested by Chinese businessmen that this violated the treaty ofamity between china and the phil and it also violated the UN convention. Here the SC held thesupremacy of the law. In the passage of this retail trade liberalization law. In fact this was avalid exercise of police power. But nonetheless, take note that this decision was made longbefore the passage of the National Trade Liberalization Act of 2000 (RA 8762) which containscertain prohibition on foreigners to engage in retain trade.
A question may arise with regards to a law wherein the state in confiscating theproperty of the aliens. This may be justified as an exercise of ppolice power. But, in the viewpoint of i-law, this is not allowed. This is in fact promotes anarchy. It allows the state to do
away with its international obligations. So that that state may be the subject of internationaldisemprobation(?) of there may be measures passed by the national community condemningthis state.
Under article 8, section 4, the authority of the SC to decide all cases including theconstitutionality of the treaty international or executive agreement.
In the case of Gonzales vs. Hechanova, in the matter of the issuance by the pres byanexecutive agreements authorizing the importation of rice. Nonetheless, take note that anaction done here by the pres under i-law is bing on the basis of this agreement it had with thestates of burma and Vietnam to import rice from these countries. But these was a law at thattime providing that there must be issued a certification of shortage of this cereal but this wasnot complied with. And when this matter was submitted to the SC, it ruled that the executivebranch may not circumvent what is provided in existing laws through the indirect act ofentering into this agreement for the importation of rice. So again, a situation where thisnational interest is held to prevail over an obligation declared in an existing agreement.
In the case of Arturo Efren Garcia, he was a Spanish Lawyer and he filed a petitionbefore the SC that he should be allowed to practice law in the Phil even without taking orpassing the Phil Bar Exam. He contended that this is so provided in the treaty of academicrelation between the Phil and Spain. The court declared that there is a provision in ourconstitution Article 10 section 5 declaring that the power to admit the practice of law in thePhil is vested in the SC. In fact this is an exercise of police power. There is no such provisionin the said treaty authorizing a Spanish national to practice law simply because he was alreadyallowed to practice law in Spain. Even if there was such a provision in the treaty, nonetheless,the constitution should reign supreme for there is a provision in the constitution vesting theauthority in the SC to allow or not a person to practice law in the Phil.
In Ku Kim Chan (?) vs. Valdez Tan Keh, after the Japanese occupation this generalMcArthur issued a proclamation declaring all laws issued by any government other than the______ be null and void. So, it is claimed here that through this proclamation it means that alljudicial proceeding are nullified. Is this claim correct? Of course not. What is being declared as
null and void applies only to judicial declaration of political complexion. So where theadjustment does not have any political color of course that would still be true. Theproclamation does not cover such situation.
We have made mention that the international community of states observes theseprinciple of i-law even if theres no adequate national machinery as can be seen/compared towhat we see in national states. Under the laws of the state, like the Phil, we have our ownpolitical machineries prescribing sanctions in case of violation. But not so in i-law.
What therefore is the basis of i-law. Why is i-law being observed? What gives itbinding force? There are 3 schools on this. The first one is known as the law of nature and thisrefers to the discernment made by the individual using his own reason and conscience. You
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know I have mentioned in our first meeting that a state is simply a composition of individualsand that state has this will because of this will these individuals. Under this law of nature, i-law cannot be said to be between states, but rather, above states. Meaning, it is superior inthat respect because individuals ____(nikarat) exercising their conscience and reason on whatis good and just. The second one, known as the positivist view, and which is consistent withthe doctrine of transformation because of the need for states to have their consent. That iswhy i-law is adhered to or the states are bound because the states themselves consented,
under this positivist theory. The third one is a combination of the first two schools of thought.The basis of i-law is not only because of the consent given but because of the awareness(?) ofthe peoples of the reasonableness of such principles of i-law.
The fact that the states agreed in fact there is basis to have these principles, it doesnot mean that states automatically observe these principles. So what therefore are thefactors that would compel obedience to these principles of i-law? One here is the belief in thereasonableness of i-law and its observance will redound to the welfare of the internationalcommunity. Another reason is the habit of obedience enshrined in the nature of man. 3 rdonerefer to the fear of retaliation coming from other states, more so the powerful states. If a statedoes not comply with its commitments in i-law, it may be the subject of censure or war. Itmay be the subject of condemnation or an object of possible reprisal or retortion(?) comingfrom the powerful states. And another reason which ought top be mentioned here is the needof the state to project a good image before the international community in order to promotegood will. One other effective sanction is through the UN particularly through the Security
Council. This organization is empowered to take enforcement or preventive action against anerring state. If a state refuses to comply, talagang the international community will be unitedbecause of this provision in the UN charter.
Ive mentioned in our first meeting that i-law is the weaker law using as basis theAustinian definition. What is the Austinian definition? It simply refers to the fact that theremust be a power that is able to compel submission, obedience and, of course, compliancethrough adequate administrative or judicial remedies. This is not so in the case of i-law. Butnonetheless, international law we still use either a ___ not really ____ law (very inaudible,sorry) because all states for that matter comply for they too realize the benefits derived fromhaving this established norm being observed by states.
How do we enforce i-law? Unlike municipal law, i-law does not have an adequatemechanism. How then may we enforce i-law? Of course, one possible measure to enforce i-lawis through these organizations we have now. For example is the ASEAN; the UN throughSecurity Council because this organization was created precisely with the noble objective to
establish and maintain international peace and order and, thus it could(?) make theemployment of any force that is in fact one of the most important principle under Article 2 ofthe UN Charter. Or I-law may be enforced through self-help methods. The states themselvesmay enter into negotiation. Example, in our relations with China, of course we cannot declarewar with China. So through self-help mechanisms and if negotiation is not successful, thedisputing states may try to settle their conflict in a more forceful methods short of war. Or ifthey cannot agree despite the exhaustion of peaceful methods, they may go to war. Anothermethoid of enforcing law, recently the international community agreed to the creation of theInternational Criminal Court (ICC). Whenever there is a violation of the laws against mankindthere may be war crimes trials involving war criminals. You know after this Yugoslav conflict,there were so many military officers which were tried before the ICC. Another mechanism isby transforming these principles of i-law as part of their own laws. So that is one way ofenforcing i-law by a statethrough the adoption in its own law of this precept of i-law.
So we have mentioned the importance of i-law, the need to have peace and order
between and among states in relation inter se. and another important objective is the need topromote world friendship by leveling(?) the barriers such as barriers of trade(?) or races Evennow in the modern age there is still times where there is this racial discrimination. So youhave the need to promote world friendship by leveling the barriers with regards to religion,etc. Another important function is the need to achieve international cooperation on problemsconfronting the international community. For example, karamihan sa mga diseases ehnaggaling sa Asia, thats why we have the World Health Organization (WHO). The need tohave common solutions, international community must be united in solving these problemsconfronting the international community. Another important function of i-law is this providesfor the humus(?) the growth of i-law through the establishment of these organizations.
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It is said that the i-law is a distinct class. Many principles of i-law has its sources incustomary law, tradition. But because of the advent of modern technology, we have so manyadvances in so many fields, thats why the need for i-law to keep pace with these swiftdevelopments. And so i-law has not been able to keep up to these developments. Recently,weve been reading articles about the unmanned craft in mars sent by the US. This was notenvisioned when the UN was created. There is now a distinction between combatants and non-combatants. And in fact wars are wages not any more between and among states. Wars right
now are groups within the state, for example, these terrorist organizations or the need tocommand self-determination of indigenous peoples asserting fundamental rights, assertingindependence and one way is to rebel against the legitimate government.
What are the sources of i-law? Basically, there are 2 sources: the principal or primarysources and secondary sources. What are these principal sources of i-law? We haveconventions consisting of treaties, international agreements etc, those agreements enteredinto between states. But, not all treaties are sources of i-law. For example, a treaty enteredinto by the Philippines with Japan, is it already a source of i-law? No, because that treaty isonly binding between these two states who entered into such an agreement and it does nothave any effect to other states who are not parties to such agreement. Generally, bilateralagreements are binding only upon signatory states, so it is not a source of i-law. How may itbecome a source of i-law? If the treaty contains uniform provisions and/or later on it isadopted by a sizeable number of states because of its uniform provisions. A good illustrationof such a treaty which may be of source a primary source of i-law because of the uniformity of
its provisions is this extradition treaty. Because these concepts are based on customary law,even under the general principles of law. And you know that general principles of law arederived from the law of nature.
When you say that an act is already a custom, it has already acquired an obligatorycharacter. Custom refers to the long established way of doing things in the belief that it isright and obligatory. So if it lacks this conviction that it is right and obligatory, it is not acustom but rather simply a usage. One example of this customary law is this practice ofgranting immunity to the heads of states or members of the diplomatic service (likediplomats). On the basis of this granting of immunity is the Principle of Exterritoriality which isto be distinguished from the Principle of Extraterritoriality. The Principle of Exterritorialityrefers to the exception of persons and things from local jurisdiction on the basis of customarylaw; whereas the Principle of Extraterritoriality refers to the exemption of persons only on thebasis of agreement. What we accept is this principle of Principle of Exterritoriality rather thanthe Principle of Extraterritoriality. Or another good illustration of this customary law is in the
matter of our country because we assert jurisdiction over the Scarborough Shoal and theSpratleys on the basis of the United Nations Convention on the Laws of the Seas (UNCLOS).But before the adoption of the UNCLOS the basis was customary lawthe extension of theterritory of a State beyond its own territory. Many of these concepts, whether you havegeneral principle of law or customary law are already expressed in conventions, many of theseconcepts are now embodies in conventions. Even the rules of maritime warfare had basis incustomary law. The authority to inspect ships for contraband items is based customary law.We have seen concepts such as prescription and estoppel in our study of Civil Law as generalprinciples of law and they are derived from the laws of nature.
Public International Law
November 26, 2012 (MONDAY)
Trascribed by: Jade Canada
We mentioned last meeting that the sources of IL may be primary or secondary. PL emanatesfrom treaties, conventions as well as customary laws and more also a third source referring to, the general principles of international law. Now, take note that most of these precepts whichare embodied as part of customary law are already expressly provided in conventions.So, when do we say that a practice has attained custom or is already obligatory as part ofthe sources of IL? So in the case of customary law, because of non-usage this is obligatory___, so in the absence of this conviction that it is obligatory, it is simply a usage. Now in thebar, the question asked was what the examples of usage of International Law are. An
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illustration is this language, words in International lawwe have apart from English we haveFrench language but if this practice is being done for several times, it attains this customarylaw. In the case of general principles which really are based on the application of the lawmeaning the word here is not between states but rather above states. So this generalprinciples are in many cases are likewise embodied in conventions. Examples of theseprinciples of law : concepts of estoppel, prescription or pacta sunt servanda , rebus sicstantibus. Now what about these secondary sources of IL?
Refer to the decisions of tribunals. So even a decision of local courts can be a secondarysource of IL so long as it is in fact a correct interpretation of IL. Another source are thewritings of publicists which means that this is impartial application of IL , persons of knownprobity. If you recall, one question raised earlier is that WON treaties entered into by thestates are sources of IL? Of course not all treaties are direct or primary sources of IL. So whendo we say that this treaty is a primary source of IL? If the treaty contains provisions which areapplicable by reason of their uniformity and binding upon states, this may be primary sourcesof IL. So if a treaty or bipartrite treaty entered into by states certainly such treaty is bindingonly upon the conducting states: State A and B entered into such a treaty, this treaty isbinding only upon such states and under states which are not party to the treaty are notbound unless the provisions of such treaty are known for their uniformity and in fact thecreation of these concepts of IL, even if this state is not party to a treaty , this treaty may bebinding to all by the principle of asession( dunno indistinct words) in other words even if thestate is not a signatory, it may be allowed to adhere/to accept these provisions and become a
signatory thereto. A group of examples of such a treaty if you call/mention the __U__ treaty, .what is the basis of the grant of immunity to a diplomat while in the territory of a local state?Of course you have here the members of the diplomatic surge who are accredited while in theterritory of the ___ state. As a rule on the basis/existing convention, they are immune fromthese decisions of the local state so thats the rule. The origin of this was on the basis of thisconcept of exterritorialy, if we recall the principle of exterritorialy and the principle ofextraterritoriality.DIFFERENCEExtraterritoriality refers to exemption of persons only on the basis of agreement whereasExterritorialy is exemption of persons and things from local __ on the basis of customarylaw. So now what is the widely accepted? EXTERRIORALITY because of this sense ofnationalism.What is this principle of STARE DECISIS?As a source of IL, we mentioned a decision and it must be the core application of this concepts
of IL. The decision rendered by a tribunal in a case involving parties which are states isbinding only between them and even there is such a similar situation involving other parties,the decision obtaining in this particular case cannot be the same decision in the other case, sounder this doctrine of stare decisis. So this decision applies only in one particular caseinvolving these parties but not be a basis to have such similar decision involving the differentparties but the same facts.International community
Cruz: the International Community may be described as the body of juridical entities whichare governed by the law of nations. Under the modern concept, it is composed not only ofstates but also of such other international persons as the United Nations, the Vatican City,colonies and dependencies, mandates and trust territories, intl administrative bodies,belligerent communities and even individuals. These are the generally recognized subjects ofintl law.
Sir Elman: International law not only involved states but also entities already grantedinternational personality thats why we have this International Community which is affirmed bythese principles. So IC is opposed not only by states but apart from states forming part of thisIC so we have apart from states we have the United Nations, the concept of belligerentcommunity but insurgency is domestic whereas at a higher level you have belligerency whichis a recognized doctrine in IL and affords rights / such status is given wise under IL and maybe considered as entity state. Its not a state but nonetheless granted the obligations of thestate for the purpose of this conflict__. Now also, let me familiarize you with such terms: wehave here the concepts of dependencies and colonies, one anomaly in IL where IL recognizes asituation of an entity possessed of the status of the state but strictly applying the diminition
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(???) and the elements of the state opt not to qualify as such but nonetheless IL we say as astate example Vatican City which is an anomaly in IL. But also concepts of Mandates and TrustTerrittories. Example the territory of Palau (you know where this? Anybody who comes fromPalau or who looks like Paluan) it is a republic which attained the status
The concepts of subject and object of IL.
SUBJECT an entity that can directly assert rights and assume obligations. It is a properparty. Direct party in International Transactions. For example the state or anything thattransacts international personality is a subject of IL. It can directly rights and assumeobligations.
OBJECT a person / entity in respect of which rights are shown as well as obligations. Forexample the individual is considered an object of IL. He cannot be a direct participant ininternational relations or transactions. He cannot pursue in his capacity as an individual beforean international tribunal unless there is an existing convention and there are instances whereit allows for this individual to file a suit even against the state but again there must be aprovision of the municipal law of that state. It is important that the individual must have thestatus of being a national of a state. This tie that binds him to his state, so if this tie is broken,what is the status of that person? He becomes a stateless person and he is injured by theactions of a third state or a national of a third state. Is remedy available to him under the law?
So it would be a case of damnum absque injuria (loss without injury) very good! Parangkinder! So it is really important for the person to be linked to his own state because what iscontemplated in the IL is the injury caused not to the individual but to the state. It means thatif a person is injured by reason of the action of a third state, the injury under the IL is theinjury caused to the state of that injured national because it has the duty of perfection. Thestate must give protection to its own nationals wherever they may be . if you recall the case ofFlor Contemplacion, that was the time that our Digong burned the Singaporean Flag. So theinjury is not the injury to the person but rather the injury to the state itself because in returnfor this duty of protection, there is this corresponding obligation on the part of the state andwhat is that? The duty of allegiance and obedience given by the person to his state. I recall in1975 if you were born? Tatanda din kayo. In 1975 there was this chess match betweenKorchnoi (Victor) versus Carpo and this was subject of the bar question. Supposing Korchnoifailed to be paid of his price money and at the time he was a citizen of Russia , so at the timeof this chess match Korchnoi was already a stateless person because he renounced his
nationality and if he was not paid of by the Phil government, is there a remedy here? Hecannot have this remedy. He cannot file suit before the International tribunal . I mentioned toyou that even under the International Court of Justice , only states will be party under ICJ.
Is there a distinction here between the term state and nation? The League ofNations was the predecessor of United Nations. Now, there are many writers who said thatthere is no such distinction because two terms are similar but strictly speaking a state is alegal concept whereas a nation is an ethnic or racial concept. When you talk of Arab nation,on the basis of race, custom , characteristic nonetheless from the viewpoint of IL, normallythere is no such a distinction between the concepts of state and nation. How do then we definea state? A state is a ___ of people living in a definite territory under a government(independent) organized for freedom purposes and capable of ___ .4 Essential elements:
Other authors argue that there are other elements such as recognitionbut again recognitionis a matter of discussion it is a political decision of a state meaning there is no worldwideacceptance. Is it possible? For an entity to resist as such in the absence of this elements ? forexample this case in SOMALIA , the intl community made a decision to send relief stopped atetc.. granting this is the situation, will this be considered SOMALIA as state? People, of course,
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territory? Yes, sovereignty, government, is there such a govt? NO, so the possession of thestatus noh because of the lack of the essential elements constituting a state.In the case of NOMADIC tribe, (who is moving from one place to another) palaging gumagalawkaya nomadic.. so what element if any is not present in nomadic tribe? Government. It doesnot have government. the element of government presupposes that there is this nationalitythat can compel obedience that you can ensure order- that is the objective test. Thesubjective test is its capability to comply with international law obligations. This is not existing
in this case.
Cruz: The term dependent state is a legal paradox because the status of statehood implies theidea of independence. To say than an entity is a state is to acknowledge, without more, that itis independent or that it is possessed of the indispensable attribute of sovereignty. In light oftraditional doctrine, therefore, the institution of the dependent state presents a curiousanomaly
Neutralized States an independent state, whether it be simple or composite, maybe neutralized through agreement with other states by virtue of which the latter will guaranteeits integrity and independence provided it refrains from taking an act that will involve it in waror other hostile activity except for defensive purposes. This is obviously desirable from theviewpoint of the neutralized state because it will remove itself from the vicissitudes of intl
politics and all their attendant expense and anxiety.
Sir Elman: As we know states are independent but the law recognizes that there is a statethat is not independent. Dependent states is an anomaly in international law and goodillustrations of a dependent state : Suzerainty and Protectorate. Also in the concept ofneutralized states as distinguished from neutral states. There is distinction betneutralization and neutrality. A state which is classified as neutralized state cannot complywith international obligations as may be directed by it by international organizations.Neutralized as distinguished from Neutral states, can only be applied in times of war so theneutral state does not involve itself in conflict . The basis of neutrality is the attitude of thestate in staying in a conflict whereas neutralization has a basis from this agreement it has withother states. So ang basis mo? Agreement with other states. So it is not only a state thatreally neutralized , it may also be a territory. So under this concept of neutralization,independence, integrity are binding. Example of this neutralized state is Switzerland. So
because of the position of ____ state, they can be able to punish state. One of the importantprinciple of the UN charter under Article 2 is comply, ensure that it complies the action betaken by the security council - taking of an enforcement or preventive action of a neutralstate..
Well end here.. 10 minute break !next subject
Public International Law Transcription (December 3, 2012)
Transcribed by: Ela Velarde
How do we distinguish a protectorate from a suzerainty?" So in case of a protectorate, we have here one state subordinating itself to a
more powerful state. In case of a suzerainty, there is a concession of authority
granted by the suzerain to the vassal state. What do you mean by a belligerent community?
" A belligerent community refers to a group of rebels under an organized civilgovernment to take up arms against the legitimate government. So take note,the need for this group to show semblance of civil authority rather than purelyan armed group. So what distinguishes a mere rebellion from this belligerentcommunity is in the case of the latter, apart from this armed group there isthis civil form of government directing the conduct of this resistance. Thatswhy in many armed resistance wherein it desires to overthrow the legitimategovernment, it must show semblance of this kind of government and this is in
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fact one of the conditions for the grant of this status as such belligerentcommunity. Even in the case of the NPA, of course this refers to the armedgroup but nonetheless we have this NBF(?) supposedly directing the conductof the ___ government.
" And so here before the grant of recognition to this rebel group, in event thatthe armed elements of this group cause death or injury to a third party/stateor its nationals, it is not still considered as directly responsible therefore. In
other words, this damage caused to the third state or its nationals is still theresponsibility of the legitimate government in the absence of recognition.Why? Because this group of rebels is still subject to the municipal laws. Inother words, if these rebels are captured, they shall be proceeded inaccordance with the municipal laws including the criminal liability. And how isthis done? The remedies available in the existing structures of this governmentthat is the filing of the proper charges before the court and other remediesavailable, not on the basis of the provisions of i-law in the absence of thisrecognition.
" But there are instances where there may be a need to grant this status. Forexample where this group of rebels has seized a substantial portion of theterritory or the conflict is such that it is uncertain which group is winning. Orthis rebel group has exercised the prerogatives, for example, it imposes ablockade, prerogatives usually granted to a large scale insurgent group that
there may be a need to perform or to grant it the status of a belligerentcommunity.
" So if the recognition of the group as a belligerent community comes from thelegitimate government, the recognition is general, it is binding. If, on the otherhand, the recognition is made by a third state, that recognition extended bythe third state extends only so far as its relations applies to the contendingforces and so that third state which gave status shall be governed by the lawsof war or neutrality. But those other states not giving such recognition do nothave such similar status as one or like this third state granting recognition tothis belligerent community.
" So what happens if there is such recognition as such belligerent community? Itacquires an inchoative status as a state for the purpose of the conflict it iswaging against the legitimate government. And so it is invested with certainrights or prerogatives such as the right to effect seizure of contraband items or
impose a blockade, the right to visit this foreign merchant neutral vessels onthe open sea. And so, once this recognition is extended to this group, it isdirectly responsible for any injuries it cause or even death to foreigners. Sothe state of the foreigners may hold directly responsible, not any more thelegitimate government, but rather it is now these rebels who caused thisdamage or injury to its nationals.
We have mentioned this concept that in i-law it is really not the right of the individualor the national that has been violated but the right of its state. And what is the right of thisstate? To give protection to its nationals because the national in return has the duty ofallegiance and obedience. And one related doctrine is the Doctrine of Indelible Allegiancewhereby a national is not allowed to renounce his nationality. If you recall, during thecampaign of the US in Afghanistan, there was this American national that was fighting side-by-side with the Afghan fighters and he was captured. And so he claimed that he already
renounced his American nationality. And so applying this indelible allegiance, he is prohibitedto do so.
We have already made mention about the case of the Vatican on the basis of theLateran Treaty. There are only about less than 500 residents or nationals that are residing inVatican, but many of them are there by reason of their positions. For example, they are therebecause they belong to the religious, many of them are priests, cardinals. We have also theambassadors. In fact there was a report that there are only about 572 residents of Vaticanand many of them are by reason of there position. And nearly 400 are permanent resident ofthis City or statea state within a state. Applying again the elements of the state, Vatican city
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is considered an anomaly of i-law because it is granted the prerogatives of a State through itshead which is the Papal Nuncio, considered a sovereign and in fact is able to pursue foreignrelations with other states. But, nonetheless, Vatican City does not exist for political reasons.
What are the 3 kinds of Trust territories?" These are (a) those held under mandate under the League of Nations; (b)
those territories detached from the defeated states after WWII; and (c) those
voluntarily placed under the system by the states responsible for theiradministration.
" One of the organs of the UN is the Trusteeship Council and which has thesame status as the other organs of the UN such as the Security Council andthe General Assembly. But, nonetheless, it no longer functions as suchbecause precisely there are no more trust territories nowadays. But thisconcept is still relevant for those to prevent the outright annexation of thoseterritories by the more powerful states. You know after the war, there may bestates which may be the subject of subjugation and to prevent this fromhappening on the basis of the provision of the UN Charter by this mandategiven to the Trusteeship Council. In the case of strategic areas, the need ofapproval from the Security Council and for the non-strategic areas is approvalof the General Assembly.
For the Administrative Body to be considered as possessed of an internationalpersonality and treated as a subject of i-law, it is important that it be autonomous and that itshould be non-political. In other words, it cannot be dictated by the other states.
We mentioned that traditionally and even up to now, although there is now a growingview to treat or characterize the individual as a mere object of i-law. What is the significanceof this individual as an object of i-law? In other words, the person is simply that it is onlythrough the instrumentality of his own state that he may be a participant. The enjoyment ofrights, and more so, the enforcement thereof, including the assertion of such rights, can onlybe done through the instrumentality of his state. Thus, even if the national is injured byreason of the action of a state, he on his own cannot have direct redress from the institutionsof that state unless he is represented by his own state. And thus there is a need therefore forthis person to be possessed of a nationality. Because it is only through his nationality that hisrights may be vindicatedthrough the intercession and instrumentality of his own state.Otherwise, it amounts to damnum absque injuria.
There is now a growing tendency to treat the individual not merely an object but as asubject of i-law. The state is composed of individuals whose collective will is the will of thestate. But because there are now manifestationsto give such more important treatment tothe individual. For example, in the Charter of the UN, it starts with the preamble proclaimingthe basic human rights. It starts with the concept that fundamental rights must be respected.There is a proclamation not only of equality but the dignity and worth of the human person.And, of course, why was the UN created. It was the result of these world wars and the age oldyearning of people to banish all forms of war use of force to settle conflict s between andamong states and, of course, between people because the recent development at present isthat wars are no longer wages by states but rather by peoples within the states. And even onthe basis of this International Human Rights Convention and the need to conform and abide bythe principles under the UN Charter. One of these more important principles is that allmembers shall ensure that the member shall comply with the principles and the need to assist
in any way the organization in the taking of enforcement or preventive action against anerring state.
Another manifestation is that there are a good number of treaties, more so, thoseemanating from the different countries which are focused on human rights violations and theprotection of these basic human rights. So there are now states giving direct access toindividuals to file suits against states in their courts on the basis of a law or on the basis of atreaty. Another manifestation, the concept of hostes humanis generis. What do you mean bythis concept? Enemies of mankind; because they commit crimes in violation of i-law andtherefore whenever these persons classified as such are captured by any state ,on the basis of
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i-law, shall be tried by the capturing state. In other words, the responsibility is directlyconferred/ imputed upon the responsible individualthe pirate or, at present, the terrorist. Oron the basis of these war crimes trials, there is now the International Criminal Court (ICC).And so more crimes may be tried by the international tribunal such as the ICC, in fact, it isone of the ways of enforcing i-law right after war. The war criminals may be tried orprosecuted for crimes committed against humanity or crimes under i-law. So in this case,clearly the responsibility is directed upon an individual.
States are also duty bound to observe the international standard of justice in thematter of the treatment of aliens while they are in its territory. As part of the internationalcommunity, states are obliged to observe this international standard of justice in thetreatment of aliens; in fact, there is a whole chapter on the treatment of aliens. What do wemean by this observance of this international standard of justice vis--vis aliens within thejurisdiction or territory of the local state? Aliens are given such respect in accordance withwhat should be observed in the international community. So if the standard of justice in acountry falls below the normal norm, for example, the simple offence of reading(?) a religiousarticle is already punishable by (let us say) cutting of fingers or pulling out the eyes, of coursethis falls below the international norm and this makes the state responsible thereto. So here,directly affected is the individual or the foreigner wherever he may be. He is given suchprotection in accordance with what is being observed by the international community. So incase, for example, a state does not have such observance of due process, it falls below the
standard and for which that state ought to be deemed directly responsible. The treatment ofpersons while in the territory of the other state.
Or under the Genocide Convention. Under this convention, it prohibits the massextermination of nation, religious or racial groups. There is such intention to destroy in wholeor in part. One practice that is abhorred or prohibited in the Genocide Convention is thesegregation of the infant from their parents; or causing physical or mental harm to membersof a community. When the former Yugoslav state collapsed, there was this ethnic cleansing sothe responsible officials were tried and made liable by the international tribunal. So here, theconvention meets directly the status of persons or individuals.
Under the Hague Convention of 1930, it provides fro the rules of engagement toprevent or minimize the state of statelessness; the condition of a person being stateless. Onesuch example or measure under the Hague Convention is if an infant is born and its parents
are unknown, what is the nationality of that infant? His or her nationality is of the place wherehe or she was born on the premise that the parents are unknown. Ive made mention to youalready about this infant placed on the doorsteps of this man in Japan, the mother wasjapayuki, so presumably, the father is a Japanese national.
Or under this Convention Relating to the Status of Stateless Persons. Statelesspersons are already bestowed or given certain rights. Such as the right to education. So theseare conventions made directly applicable to individuals.
Even under the Doctrine of Incorporation, which is to be distinguished from theDoctrine of Transformation, wherein without the need of transforming these principles ofinternational law as part of our own laws. The big fact that we are already part of theinternational community, we observe these principle or these principles of customary law.Without the express provision stating out adherence to this concepts, but through the doctrine
of incorporation, we are duty bound to observe these concepts.
The United Nations arose because of the travails of mankind from the WWI and WWII.In the WWI, what we had was the League of Nations, now we have the UN. What distinguishesthe UN from its predecessorthe League of Nations, was that the latter did not provide for theclear outlawry of war and thats why this organization failed. Not anymore, under the presentcharter of the UN, there is such provision as already embodies in Article 2 pertaining to theprinciples of the UN. This organization became a symbol of the condition(?) and self-determination of peoples to punish forever this terrible predicament(?) of war and other moredrastic use of force in the dangerous(?) states inter se.
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How did this organization evolve? Even when this war was still being wages, there was
this Declaration by United Nations sometime in January 1, 1942 conducted by 26 states andsubsequently adhered to by 21 other states. They agreed that they shall utilize al their forcesagainst the Axis powers(Germany and Japan) and that they would not enter into separateagreements with the Axis powers. The blue print of the UN was the Dumbarton OaksProposals. There was this San Francisco conference from April to June 1945 and here 50
countries plus Poland making it 51, although Poland was not an original sinatory.Nevertheless, they signed this Charter and it became effective by the filling of the certificatesof ratification by the permanent members and the rest of the original signatories.
The Charter of the UN is considered not only a treaty. Why a treaty? It is because ofthe agreement of the states. How many states are now members of the UN? They startedfrom an original membership of 51, including the Philippines, subsequently so many statesbecame members (known as elective members). Currently, there are about 193 member inthe UN. It is also considered as a constitution because the Charter provides for the mechanismin affecting changes such as the amendments of the provision of the Charter.
Take note of Article 103 of the UN Charter, it declares that in case of conflict betweenthe obligations of a member under the charter and its obligations under a separate anddifferent agreement, what prevails is its obligations in the UN under the UN Charter. In fact, it
is very clear that it is one of the principles embodies in Article 2 of the UN Charter.
Just like what we have mentioned, for the purpose of why we have this internationallaw is for the same purpose why we have this UN. Basically, the primary reason for this UNorganization is to establish international peace and security and to take collective measuresfor the removal or elimination of hindrance to peace. Another important reason is to promotecooperation among nations in the solution of common problems confronting the internationalcommunity which may be of humanitarian or cultural character or even economic. How did theinternational community justify its actions in Somalia? Because of this Article 1 provision onthe enshrined purposes of the UN organization to come up with a solution whenever there isan international problem confronting the international community. Because of the suppressionemployed by the powers causing extreme hunger, of course, the international community mayutilize its forces in taking enforcement or preventive action and as a mean to transport theneeded goods, medicines, etc to the peoples. The UN is also an instrument or humus for
growth of international law because of these actions of the UN organizations.
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Now very important in Article 2 of the UN Chapter is that it speaks of the 7 principleswhich form the basis for the operations of the UN organization.
1. The Organization is based on the principle of the sovereign equality of all itsMembers.
First off, the Organization is based on the principle of equality and self-determinationof people. Thus, the clear manifestation of this principle is in the General Assembly itself whichis one of the important organs. There are 6 of them in the United Nations but the general ofthe 6 organs is the General Assembly and each member of the UN can cast 1 vote on the basisof this principle of sovereign equality among the states. Despite the differences whether weretalking here of a powerful state or a weak state, it is nonetheless entitled to 1 vote. But thereis much to be desired in the Security Council in that there is a difference among the membersand because the in the Security Council, there is a qualification of membership whetherbelonging to this permanent membership or to the non-permanent. Nonetheless, theorganization is premised on this concept of sovereign equality. And it follows therefore thatthere must be this of non-intervention on what may be purely domestic matters of the stateand again this is filled with another principle that we will discuss later on.
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2. All Members, in order to ensure to all of them the rights and benefits resulting
from membership, shall fulfill in good faith the obligations assumed by them in
accordance with the present Charter.
Also, we have this important principle that all members shall ensure that they shall
comply or fulfill with their obligations in good faith. And this is consistent on what we haveemphasized repeatedly on the concept of Pacta Sunt Servandaand we have mentioned thateven under Art. 103 of the UN Organization Charter, whenever there is a conflict of themembers of the UN vis-a-vis his obligations under a separate agreement and what applieswould be the obligations of the members under the UN charter because precisely the need toensure compliance with whatever obligations they may have in this organization under thisprinciple of Pacta Sunt Servanda.
3. All Members shall settle their international disputes by peaceful means in such amanner that international peace and security, and justice, are not endangered.
Another principle is that all members shall settle their conflict in a peaceful manner orby peaceful means. If you recall the important purpose here is the maintenance ofinternational peace and order and that in order to achieve this goal must enforce measure for
the prevention or elimination of threats and of course as well as the suppression of acts ofaggression that threatens international peace and security.
If you recall what distinguishes this organization from its predecessor and in fact whichmakes it successful unlike its predecessor, the League of Nations, is that the latter did nothave this clear operate of war in all its form. So we have this principle embodied in Art. 2 ofthe organization. And in relation to this principle, the need to settle conflict.
4. All Members shall refrain in their international relations from the threat or use offorce against the territorial integrity or political independence of any state or in
any other manner inconsistent with the Purposes of the United Nations.
The most important of the 7 principles is found in Principle #4 and this refers to factthat all members shall refrain from any threats or use of force in the settlement of their
conflict. So the principle enshrined in Art. 2 which is refraining from use of force which wouldthreaten sovereignty and integrity of the state and is consistent with what is embodied in theUN charter.
5. All Members shall give the United Nations every assistance in any action it takes inaccordance with the present Charter, and shall refrain from giving assistance to
any state against which the United Nations is taking preventive or enforcement
Now another important principle is the need for the members to assist theorganization in the taking of whatever measure that they have adopted. So the need toparticipate in the enforcement and preventive action that the Security Council will decree. Forexample, whenever the Security Council adopts a resolution for the taking of a preventiveaction or even whenever it calls for an enforcement action and thus the states are obliged toeither send contingents, humanitarian or it may be not military. In so many instances in thepast, the Philippines had sent contingents, not military but rather humanitarian because themission is composed of doctors, nurses, and other non-military personnel. Recently, thePhilippines also sent when the UN Organization recognized this former of Indonesia which isTimor. But you know that Timor used to be a colony of Portugal and the state of Indonesiaannexed Timor as part of it. This move of Indonesia was not accepted by the internationalcommunity and of course later on Indonesia ceded to the demands of international communityand of course, we know, that Timor is already a state. In fact, the United Nations in order toachieve this recently state participated in so many undertakings that form the immediate
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establishment of this territory act. In the BAR, the question asked was lets say if the SecurityCouncil decrees the taking of an enforcement action and demands contingent and thePhilippines what we sent was not military but simply a mission of doctors from the ArmedForces as well as nurses and . a commitment of the Philippines as member of theinternational community so it did not send military contingents.
6. The Organization shall ensure that states which are not Members of the Unitednations act in accordance with these Principles so far as may be necessary for the
maintenance of international peace and security.
Another important principle is of course the fact that the members shall ensure thateven non-members shall comply with the obligations enshrined in the charter. So take note,even non-members are duty-bound to observe these obligations and the members of the UNmust ensure that the non-members also adhere to this concept. If youve been reading thepapers recently, the General Assembly in fact unanimously recognizes Palestine as non-member observer state. So you know, it used to be mere authority not even a state but ithas already attained such status but is nonetheless not yet a member or a formal member ofthe UN. It is given an observer state status. So the Palestinian Liberation, used to be PLO,which was considered a terrorist group and thereafter it graduated to a higher status, thePalestinian Liberation Authority and in fact is now made a non-member but nonethelessentitled to an observer status but recently it had acquired a status of a non-member observer
7. Nothing contained in the present Charter shall authorize the United Nations tointervene in matters which are essentially within the domestic jurisdiction of any
state or shall require the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the application of
enforcement measures under Chapter VII.
Another important doctrine or principle under Art. 2 is what is known as thedomestic jurisdiction clause. And this is simply consistent with the settled doctrine ofnon-intervention. Generally, the international community can only intervene in the matterclassified as international. Whenever a conflict threatens international peace or security thatwould be a justification for the international community through the Security Council to adoptmeasures for the prevention of any form of conflict that threatens the international peace. Soa purely domestic affair will not justify the international community through the SecurityCouncil of the UN to intervene unless of course it breaches the international peace. But thegeneral rule is that we apply the domestic jurisdiction clause. Whatever happens in a stateshould be classified as internal. So if there is a group of people or a group of rebels trying tooverthrow the legitimate government, that itself will not justify the UN through the SecurityCouncil to participate or intervene because the principle we follow that is embodied in Art. 2 isthe principle of domestic jurisdiction clause.
Of course the exception would apply in the event that this conflict or rebellion takingplace in the territory state aggravates and poses a threat to international peace. And therebeing so many instances when the international community justifies its action on the basis ofthe fact that people existed survival of people with the state. Example is the case of Somaliaor in the case of the former Yugoslavia Republic because of and so the Security Council isjustified in taking actions. Or this may be asked in the BAR that theres a conflict in Southern
Philippines. A conflict is waged by the MNLF during the time of the Marcos administration andeven up to the time of Estrada administration. Now this conflict cannot be said to beinternational in nature.
Thats why whenever there are peace talks and agreements have to be made, it is notthe President who is the signatory because to do so would be giving this group a recognitionas international belligerent and so in order to put into the minds of people and of course themembers of international community that this is purely an internal matter although there maybe some assistance coming from other states. For example the state of Indonesia andMalaysia not really intervening but playing the role of peace maker. And so clearly in order toprevent that acquisition of a status of belligerent community, only lower-ranking officials of
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the state can enter into whatever agreements. In the case of the Philippines, it recently hadthis MOA with the MILF and of course the declaration of the BANGSAMORO where there arenumerous petitions filed before the Supreme Court. It is well taken that nowhere in theConstitution does it provide for the entity, BANGSAMORO. What is mentioned in theConstitution is an Autonomous Region, right? Thats why we have this ARMM and the presentadministration has in fact admitted that its only the concept of Autonomous Region butnonetheless we have this petition. Why? In the MOA the present administration entered into
with the MILF of course with confirmation of the MNLF because they have earlier signed thisagreement in 1976, that time when the beautiful first lady Imelda Marcos, so he was asked byhis husband to seduce (not really seduce. LOL.) the of Libya. So the signatories of thatMOA, they that the agreement was signed by a lower functionary of the Philippinegovernment and not the head of state. Thus, the domestic jurisdiction clause.
We know what happened during the 9/11/01 when twin towers were destroyed. Haveyou been there? (Joke!) Less than 3 weeks after the twin towers were destroyed, the UNthrough the Security Council passed this UN Resolution ordering the members of the UnitedNations to prevent and suppress the , to support the Organization. So those states which didnot comply with the obligation embodied in the resolution shall be a subject of economic anddiplomatic sanctions and there may be use of military states against those which do notobserve this resolution and which continue to support the terrorist organization. In fact, thisresolution also obliges the members to share the information of funds of these terroristsorganization.
In the BAR, the question asked was about a situation the UN about the Arab Leagueproposing a resolution to include in the agenda of the General Assembly a discussion aboutthe desire of the Muslim population in Mindanao to form a separate state. Now how would youattack this problem from the viewpoint of international law adopting what we have discussedin Art. 2. What principle would apply here? This is a purely domestic affair in the Philippinesand thus there is no basis in international law for this Arab league to intervene in suchdomestic jurisdiction. So from the viewpoint of international law, we apply here the principle ofnon-intervention and in relation to that the domestic jurisdiction doctrine.
Now what are the exceptions to this non-domestic clause: (1) in case of breach ofinternational peace and security ; and (2) when the parties to the dispute themselves requestthe assistance of the international community. For example: the state in conflict desire theintervention of the UN more particularly the Security Council. Of course that would be anexception to the principle. Another would be of course on the basis of another principle thatwe would discuss later under Art. 51 on the basis of the doctrine of self-defense which may be
individual or collective. If you recall I mentioned to you under the NATO agreement and sothere is an important provision there that an act against a member is an attack against all ofthem and that it may in fact assist the attacked member in the NATO.
(1)Original or charter members; and(2)Elective members
Basically there are 2 kinds of membership in the UN. the first one wherein thePhilippines is also a part of it is the original members. If you recall there were originally 51members including Poland but Poland is not an active participant but is nonetheless allowed asa signatory and all the other members and now there are 193 members in the UN who areconsidered as elective members.
Now, of course important concept here is the manner of admission of the member.There must be a favorable recommendation of the Security Council. So without the favorablerecommendation of the Security Council, a state cannot be a member of the UN. So there isreally no distinction as to the rights between original and elective members. It is simplymanner of admission. It does not have any relevance as to the rights and obligations ofmembers.
So what are the qualifications for an entity to be qualified for membership?
(1) Of course it must be a state.
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(2) It must be peace-loving.It is subjective! When do you say that a state is peace loving? It depends upon the
judgment of the other member states.
(3) It must accept the obligations of the charter. More so Art. 2 of the UN Charter.(4) And it must be able to carry out the obligations.Because there are states that even though they are qualified as such are unable to
comply. For example a neutralized state. If you recall is not able to participate in anypreventive or enforcement action that will be adopted by the Security Council and if one entityalready classified as such but nonetheless because of self-imposed limitations or because ofsome other limitations, certainly it may not qualify as member of the UN organization.
(5) It must be willing to carry out these obligations.
SUSPENSION OF MEMBERS
The charter of the UN provides likewise for the mechanism for the suspension orexpulsion of the member of the United Nations.
When may a member of the UN be suspended? If that member is a subject of apreventive action as decreed by the Security Council, it may be suspended. Now suspensionhere refers only to the rights but not the obligations. For example, the obligation of a memberto financially contribute depending upon the capability. So the fact that a member of the UN issuspended does not mean that it is free from its obligations under international law. So theright here may refer to the membership or entitlement to be a member of any principal organsof the United Nations and so if it is suspended, it cannot participate in any meetings. Butnonetheless, it is still duty bound to observe the principles and of course pay financialobligations it may have.
Suspension may only be lifted by the Security Council alone.The members may be suspended by 2/3 of those present and voting in the
General Assembly and upon a favorable recommendation of at least 9 members of
the Security Council including the permanent members. This is also known as thequalified majority in the Security Council, at least 9 members including the permanentmembers. If you talk of a simple majority in the Security Council, any 9 votes regardless ofthe vote of the permanent members.
December 10, 2012 (Monday)
By: Jade Canada
Question: Of these 7 principles we have studied which is the most important?- Threat or use of force. Why this is considered most important? Clearly the reason
for this is the fact the success of the organization is premised on this principle and
in fact we mention that what distinguishes this organization from its predecessor
and in fact the cause of its failure is precisely being absence of such provision in
the League of Nations, the predecessor of the UN so clearly the principle there is
clear authoring of war in all its forms.
- Now we have mentioned of these principles /the resolutions passed by theSecurity Council of the UN, 1373 less than minutes of what happened in this
bombing of twin towers and so the UN SC passed this resolution unanimously 150.
In fact among those who passed this measure is Syria (you know whats
happening in Syria right? The president of Syria Bashar al-Assad right now is
ongoing civil strike. You have in fact several states already recognizing this
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national alliance composed of different united forces. You know the problem here
is peacefully the non-unity of these so many rebels fighting for this present
government of __ and so the related development of that state is national alliance
and in fact is recognized by some states already including France Tukey and
several Arab nations, . and so this Resolution 1373 is a ___ upon members to
refrain from giving any kind of assistance or support or seek payment to __ these
organizations and those states has refused to observe / comply with this resolutionshall face possible threats of economic as well as diplomatic sanctions or worst or
there will me used of military force against the states which refused to comply
with this resolution 1373.
What are the 2 kinds of membership of the UN organization?
# Original and electiveWhat is the difference bet those two kinds of membership? Manner of admission
- We mentioned likewise in the UN it has 6 principal organs, apart from the SC andGA we have mentioned the others like trusteeships, social council, secretariat. We
also have subsidiary organs of the UN. It is still part of the UN but nonetheless it
served as the subordinate bodies in the organization you have the CHR, Military
Commission as well as IL Commission. There are also Intl organizations thoughnot part of the UN but because of their important functions they come close
contact in the UN organization and of course we are referring to agencies like the
IMF, World Bank- these are organizations independent of the UN but of course are
given international personalities. They are ___ with the UN organization.
- In the General Assembly which is the state body of the UN and its state isrepresented in this GA. You have here each state is entitled to one vote. Again if
you recall the first principle mentioned is the principle of sovereign equality. Thus
this sovereign equality principle is clearly manifested in the voting in the GA and
that is in fact it made a distinction between important question or non-important
which well discuss later. So a state if it we wishes to be a member of UN must
have the recommendation of the Security Council . the principal body that acts for
this application is the GA but it is the state that wishes to be a member must bepreferably endorsed by the Security Council by at least 9 including the affirmative
vote of these permanent members. The GA will not admit any applicant member
without this favorable recommendation of the SC. The same manner that for a
state to be suspended or worst expelled as a member of the UN, the same
requirement, 2/3 vote of those present and of course the favorable
recommendation fo the SC with the qualified majority vote. What do you mean by
the qualified majority vote in the SC? Simply means 9 members including the vote
of the permanent members. So remember there is this measure to suspend/expel
a member it will require 2/3 of votes upon the favorable recommendation of 9
members including the 5 permanent members. Of course we all know
Now when did a state be suspended from membership?- Now remember suspension here refers only to the enjoyment of rights such as
being elected as members of the principal organs but of course it does not prevent
this member s state even if it is suspended from becoming a member of the ICJ
because really the rational here of that suspended state is that considered as
international person representing the __ UN organization in the ICJ but the
suspension here refers to the membership in the bodies such as the voting in the
GA as well as in the SC. The reason for this suspension is, remember, the state is
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the subject of enforcement or preventive action or remember a state has the oath
for some violation/__ violations of principles embodied in the UN org charter, and
then it may be a basis for the expulsion of the UN member. Now whenever is such
member suspended, the suspension can only be lifted by the SC. There is no
provision in the UN charter providing for a withdrawal of a UN member. What is
the reason for this? Not to encourage withdrawal of members although there is
this draft in court by this intl law commission providing for this withdrawal thatthere is no such provision in the UN charter itself whether encouraging or
prohibiting such withdrawal. The reason for this is to ensure that there is unity to
strengthen the org. although there was one such instance where a state withdrew
that was in the case of Indonesia during the time of Sukarno but was again
admitted to the UN. So we made such distinction in the voting in the GA.
- So decisions or issues classified as substantive or important should be made by2/3 present in the voting and all other issues that are not important are
to be decided by the majority of those present in voting in the GA.
- Now, for the SC it is governed by a differed formula and this is known as theYalta Voting Formula. And this is being asked a number of times in the barexam. What is the YVF in the SC? And so again if you recall we made such
distinction bet. Permanent and non-permanent members. There are 5 permanent
members and 10 non-permanent members because we have 15 members in the
SC. Of course, of the 10 non- permanent members 5 from the Asia and 3 from
European States and 2 others from Latin American States. And so under the YVF,
again distinction has to be made between a mere procedural matter and which
ought to be decided by any 9 members procedural matter shall be decided by 9
members in the SC whereas a non-procedural or a substantive issue ought to be
decided by qualified majority vote meaning at least 9 members including the 5
permanent members approve such resolution and so under the YVF, any of the 5
permanent members is entitled to a veto power. What is this veto power? Right of
the permanent members. When a the permanent member resourced to this veto,it will defeat a measure and even if it is passed by the other members so long as
there is one member exercising veto power , it will defeat a proposal. Now what is
the effect if any of the permanent members abstain or in fact is absent during this
deliberation, does it mean the measure can no longer be pass and does it mean
that it is already construed as an exercise of his veto right? NO. and so the
abstention made by a permanent member is not to be regarded as an exercise of
its veto power. So there is a distinction clearly under the YVF between a
procedural matter and a non-procedural or substantive matters.
-Now, the question of whether a matter is procedural or non-procedural in the SC is
regarded as substantive and so therefore the required vote is qualified majority
and as there is also this concept as DOUBLE VETO wherein a matter will be
construed as merely procedural or on its merits the council itself will vote
negatively against such measure so double veto .
So what is the reason for the YVF? Again you have to connect this to the reason
itself for having this permanent membership in the SC. You know these 5
permanent members that they have this right precisely because the International
Community recognizes the power and force that such permanent member may
utilize. So in order to have success/ unity in the org, these 5 members were given
up to now a veto power under the YVF. The org can only succeed because of the
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unity of these 5 permanent members and because of their influence in the physical
- There is also this important concept known as the Uniting for PeaceResolution. What is this UPR? Take note again we go back to the earlier
important concept of SC and that is to ensure international peace and security.
What if the SC is unable this principle task or obligation to preserve theinternational peace and security? What is the remedy in such situation? The
remedy here is this Uniting for Peace Resolution. Under this UPR, the UN thru the
GA meets within 24 hours. So an emergency session will be hold for 24 hours at
the instance of any 9 members of the SC or by majority of the members of the
UN. And so if theres such call under UPR, the GA will meet within 24 hours in such
important emergency measure basically relating to the need to ensure /preserve
international peace and security. Another important organ in the UN is of course
the world court or the International Court of Justice (ICJ) at the Hague,
Netherlands. And so on the basis of this jurisdiction of the ICJ under Article 36 of
the Statute (Of course this statute is the International law of the ICJ which is
annexed to the UN org). Now the rule of course is that all states are ipso facto
made parties to the statute of the ICJ. Again, only states can be made partiesbefore a case on the ICJ on the basis of consent. So without the consent of the
state, the issue cannot be submitted.
-So what cases are within the authority of the ICJ?
- Contentious issues, provisions of the UN or treaties or conventions, agreements orissues arising from the treaties, etc. even the organs of the UN may seek advisory
opinions. Take note the GA and the SC may seek ADVISORY OPINIONS. Now
what about the other organs of the UN? Can they resort (trusteeship, etc) can
they do that? Yes! Provided there is authority given by the GA on legal matters
within the scope of their assigned activities. So, only within the scope of their
respective activities. I mean there is this advisory given by the ICJ thru these
other organs /principal organ of the UN. On the basis of consent (this being askednumber of times in the bar exams) consent of the states as manifested by the
___ jurisdiction clause in Article 36 of the Statue of the law of ICJ which is made
annex to the UN charter. Now, the ICJ is composed of 15 members elected for a
term of 9 years and may be subject for re-election. Of course the term here is
staggered such that there will be expiration of an interval of 3 years (1/3 of the
members of the ICJ will end its term in 3-year interval) . under Article 36, ICJ,
remember issue involves in the interpretation and application of the treaty must
submitted to the ICJ or any issue related to relating to international law are also
within the ambit of the ICJ or the existence of any situational fact which would
constitute a violation of an international obligation or whenever the issue refers to
the payment of reparation / the extent of the reparation because of the violation
of IL- these are the matters falling within the ambit of the jurisdiction of the ICJ.
2 limitations of the jurisdiction of the ICJ
1.) Consent (state must give their consent)2.) Only States can be parties before the ICJ
- In the bar there was a question, the issue here was may the United States besued in the ICJ for the value of the private properties requisitioned by its army
during the World War as well as fund for the Mickey Mouse man ( why mickey
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mouse? Of course we all know mickey mouse) in payment of private properties
which have not ___ up to now . .(yawyaw) again the answer lies here in the
existence of the limitations in the jurisdiction of the ICJ.
- Now what about a non-member of the UN, may it be made a party beforethe ICJ? Or does it mean that the authority of the ICJ applies only to the
members? Meaning the statute of ICJ recognizes only members of the UN as
parties to a dispute before the ICJ? Now even non-members of the UN may bemade parties again there must be consent, in the case of a non-member subject
to conditions as so determined by the General Assembly (GA). Can the ICJ give
advisory opinions? Yes on the legal questions at the request of the GA or the SC.
Secretariat- TheSecretariatis headed by the Secretary General and the SG has a term of 5
years and may be elected for another 5 years. of course he is entitled to full
diplomatic immunities and privileges but all of these can be made by the SC while
the other official of the Secretariat and of course the SG, can only be made by the
SG. The case of Bernadette ( not sure / dli clear was the UN official was ask to
settle the Palestinian conflict . of course he was entitled to this diplomatic
immunity.. we will continue next meeting 5 minute break
RECOGNITION DEC 19
Let us now discuss the concept of recognition.
We mentioned earlier the essential elements or characteristics of a state people,territory, government and sovereignty. And once an entity is able to acquire thesecharacteristics, it is considered as an international person. But the question now is whether ornot this entity already possessed of these characteristics is already a member of internationalcommunity? It does not follow. Because its vision to the family of nations is dependent upon
the acknowledgment of status by those already within the so its possible actually that youhave states members of the international organization such as the United Nations still notrecognizing each other outside the UN. For example, the case of the Philippines, it was alreadyan original member like China and Russia. So these states are already members butnonetheless outside the UN they do not recognize each other. It is only when there is formerestablishment of diplomatic ties and that was in 1975 that recognition was extended, thestatus of such entity as a state is recognized.
There are 2 theories on this recognition:
(1) Majority Theory; and(2) Minority Theory.
First is declaratory and the minority view is constitutive.
Under this declaratory theory, once a state is able to show that it has thesecharacteristics nonetheless, it is not automatic that it is already a state member of theinternational community because as Ive mentioned earlier, the need for such status to beacknowledged, recognition must be extended. The fact that these elements are existing doesnot make it mandatory. Thus, it is still a political decision that must be made and of courserecognition as a political decision is not subject to judicial review. It is actually within theambit of act of state.
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On the other hand, the other theory which is the minority view or the constitutivetheory states that whenever these elements are present in an entity, it can demand as amatter of right such recognition. It solely follows. It is legal and obligatory for recognition tobe extended to this entity possessed of these elements.
But again, what is is the declaratory theory the need for the member states to stillrecognize the status of these other entity although they may have these characteristics. The
decision to extend recognition to another state, in the case of the Philippines, belongs to theexecutive branch. You have the President as the Chief Executive. And what is the basis forthis? Because of the Presidents treaty making power. Not only this, but also the rightobligation which simply means the right to receive as well as to send diplomaticrepresentatives or the fact that the President or the Chief Executive of the Republic is theforeign spokesperson. Of course this task may be delegated, and is delegated in fact to theSecretary of Foreign Affairs. This power being executive is not within the ambit of judicialreview. It is a political decision. It cannot be raised before the Courts. So for examplewhenever the Department of Foreign Affairs through the Secretary, in fact, make a declarationthat the Philippines recognizes the Palestine Liberation Organization as a state. It is a politicaldecision.
Objects of Recognition
So what are the objects of recognition? Recognition here may be extended to a: (1)state; (2) government; and (3) belligerent community.
Now in all these cases of recognition, there must be a clear indication or intention totreat the other as such and if it is a state given recognition, it is willing to enter into diplomaticrelations with that entity.
In the case of the government, it is a declaration that there is this individual or groupof individuals binding the state. That it is the of the state and that it has control of the machinery and of course it is a recognition likewise that the government is willing to observethe rules of international law.
Or this may be a recognition of the belligerent community. Such recognition is not
similar to the recognition of the state nor with the recognition of government becauserecognition of belligerent community simply means that for the purpose of conflict that thisgroup is waging against the legitimate government, there arises rights on the part of thisgroup or the exercise of belligerent rights such as the right to visit and search, the right toimpose blockades and establish prize courts. All of these under the rules of war and rulesneutrality.
Now, let me mention here the important rule: the recognition of a state is irrevocable!So once a state exercised that that entity is already a state, it is already irrevocable. Wementioned so many times earlier that sovereignty is perpetual. It is continuous. There may bea change in government, but it does not affect the state itself. There may a change fromdemocratic to authoritarian rule. Nonetheless, it does not affect the sovereignty of such state.Now, recognition of the state includes the recognition of government, but not the other wayaround.
So recognition of the government does not mean the recognition of the state. Why?Because the recognition of the government may be that of a colony or a protectorate. Someaning, not really with full independent status. So it does not follow that when there is thisrecognition of government is already recognition of the state. Now it does not also follow thatwhenever there is the sending of fact finding commission to the territory of an entity it isalready recognition, it is not so. Neither is the sending of consular officers can be consideredas a recognition. You know in subsequent discussions, we will be able to distinguish whydistinction between diplomatic agents and consular agents. Consular agents are not diplomatsunder international law. In fact, they do not have the same rights and privileges.
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Now there are 3 kinds of de facto government:
(1)A government de facto which is established because of the action taken by theinhabitants in overthrowing a legitimate government; or
(2) it may happen that the inhabitants seceding without overthrowing the legitimategovernment. For example the aspirations of the Bangsamoro people. So now we have the
recognition of the Bangsamoro. Nonetheless, you cant say that these people assertindependence. In fact it is a recognition of such right in the UN chapter. You have here asituation wherein the inhabitants asserting independence, seceding from the governmentwithout overthrowing the government. In the first one, the people themselves rise in armsagainst the legitimate government. For example during the time of Corazon Aquino in 1986and in subsequent years thereafter, there were so many coup attempts. And for the purposesof discussion, lets say if Honassan at that time succeeded in overthrowing the legitimategovernment, what would be the status of such government? De facto government! That is ofcourse under international law but if within our own laws, our constitutional law, it cannot beclassified as such. It is simply a usurper, beyond constitutional methods.
(3) On the 3rd situation: a de facto government established at the course of warbecause of the occupation by the invading troops of the territory of the other states and thatother state established a government. Example: during the time of the Japanese militaryoccupation.
Of course, international law rules upon the establishment of a government by violentmethod thats why you know, there will be an international misunderstandings should thesestates recognize this de facto government as de jure. And of course this will bring aboutconflict. Thats why to prevent this international misunderstanding, there is a need thereforeto show satisfaction of these essential requirements. For example, if you recall what I havementioned to you, the subjective as well as the objective test.
So what is the objective test? The objective test here is that the government is ableto have control with the popular acquiescence of the people. Thats the objective test. The
subjective testhere is that this group representing itself as the government and making it agroup binding it to the people of the state is really able to comply with the obligations of
international law that it is abl