Public International Law (November 21, 2012) Transcribed by: Ela Velarde We follow the first principle which

is the doctrine of incorporation (as against the doctrine of transformation) meaning the principles of international law are binding on the state even 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 means that it adheres to these principles. These obligations to comply with international law runs with its own existence as a state. Nonetheless, in our own constitution, we have such a provision making an express declaration of our intention to become binding on these principles under Article II Section 2 which provides that The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. If you can recall, in the creation of these ASEAN, of course, this organization is founded on similar concepts on the adherence of the member states in Southeast Asia in the observance of these norms. In fact, the basis for the success of the organization in the consensus. But, recently in the newspapers, the ASEAN has not reached a consensus precisely because 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 this portion 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 the principles of international law because the members of the international community adhere to these principles. In the case of Koroda vs. Jalandoni, we made mention that even if the Philippines was not a signatory to the Hague Convention and in fact the Philippines signed the Geneva convention only in 1947. Nevertheless, as part of the international community, just like 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 concepts of international law or are part of customary law. The presumption here is that the local law of such 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 over what is provided in the municipal law and this is consistent with the doctrine of pacta sunt servanda 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 is its paramount self interest. Thats why the president has disclaimed the statement maid by the head of Cambodia that the ASEAN was able to attain consensus because of the Philippine position 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 the observance of these rules of international law. In so many instances, in fact, the Philippines has promoted these self-interest over what is being provided in existing agreements. So for example what is provided in a treaty entered into by a state vis-a-vis the protection of the territorial integrity. If you recall, many years ago, in 1991the abrogation by the Philippine senate with the treaty regarding the VFA. So what provision in the constitution espouses the supremacy 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 the constitution Article 7, Section 21 which provides that No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. In other words, the constitution itself provides for this mechanism whereby the national law reigns supreme me over the treaty. There are so many ways by which a state may in fact promote this self-interest and may postulate that its law reigns supreme over that obligation coming from a treaty. One way here is under the constitution under article 7, section 21the authority of the senate to in fact modify what may be agreed upon or even supersede. you also have in the constitution the authority of the SC to declare as unconstitutional a treaty. There is such a provision in the

constitution whereby the SC en banc may declare a treaty as unconstitutional thereby holding that 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 the constitution of the state has in fact a provision prohibiting the establishment of bases, of holding 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 foreign troops. And so where the provision calls only for the temporary engagement and the type of governmental 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 of Inchong vs. Hernandes: what happened here was that the congress passed this retain trade nationalization law and it is contested by Chinese businessmen that this violated the treaty of amity between china and the phil and it also violated the UN convention. Here the SC held the supremacy of the law. In the passage of this retail trade liberalization law. In fact this was a valid exercise of police power. But nonetheless, take note that this decision was made long before the passage of the National Trade Liberalization Act of 2000 (RA 8762) which contains certain prohibition on foreigners to engage in retain trade. A question may arise with regards to a law wherein the state in confiscating the property of the aliens. This may be justified as an exercise of ppolice power. But, in the view point 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 international disemprobation(?) of there may be measures passed by the national community condemning this state. Under article 8, section 4, the authority of the SC to decide all cases including the constitutionality of the treaty international or executive agreement. In the case of Gonzales vs. Hechanova, in the matter of the issuance by the pres byan executive agreements authorizing the importation of rice. Nonetheless, take note that an action done here by the pres under i-law is bing on the basis of this agreement it had with the states of burma and Vietnam to import rice from these countries. But these was a law at that time providing that there must be issued a certification of shortage of this cereal but this was not complied with. And when this matter was submitted to the SC, it ruled that the executive branch may not circumvent what is provided in existing laws through the indirect act of entering into this agreement for the importation of rice. So again, a situation where this national 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 petition before the SC that he should be allowed to practice law in the Phil even without taking or passing the Phil Bar Exam. He contended that this is so provided in the treaty of academic relation between the Phil and Spain. The court declared that there is a provision in our constitution Article 10 section 5 declaring that the power to admit the practice of law in the Phil is vested in the SC. In fact this is an exercise of police power. There is no such provision in the said treaty authorizing a Spanish national to practice law simply because he was already allowed 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 the authority 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 general McArthur 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 all judicial 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 the adjustment does not have any political color of course that would still be true. The proclamation does not cover such situation. We have made mention that the international community of states observes these principle of i-law even if theres no adequate national machinery as can be seen/compared to what we see in national states. Under the laws of the state, like the Phil, we have our own political 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 it binding force? There are 3 schools on this. The first one is known as the law of nature and this refers to the discernment made by the individual using his own reason and conscience. You

know I have mentioned in our first meeting that a state is simply a composition of individuals and that state has this will because of this will these individuals. Under this law of nature, ilaw cannot be said to be between states, but rather, above states. Meaning, it is superior in that respect because individuals ____(nikarat) exercising their conscience and reason on what is good and just. The second one, known as the positivist view, and which is consistent with the doctrine of transformation because of the need for states to have their consent. That is why 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(?) of the 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 does not mean that states automatically observe these principles. So what therefore are the factors that would compel obedience to these principles of i-law? One here is the belief in the reasonableness of i-law and its observance will redound to the welfare of the international community. Another reason is the habit of obedience enshrined in the nature of man. 3rd one refer to the fear of retaliation coming from other states, more so the powerful states. If a state does not comply with its commitments in i-law, it may be the subject of censure or war. It may be the subject of condemnation or an object of possible reprisal or retortion(?) coming from the powerful states. And another reason which ought top be mentioned here is the need of the state to project a good image before the international community in order to promote good 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 an erring state. If a state refuses to comply, talagang the international community will be united because of this provision in the UN charter. Ive mentioned in our first meeting that i-law is the weaker law using as basis the Austinian definition. What is the Austinian definition? It simply refers to the fact that there must be a power that is able to compel submission, obedience and, of course, compliance through adequate administrative or judicial remedies. This is not so in the case of i-law. But nonetheless, 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 from having this established norm being observed by states. How do we enforce i-law? Unlike municipal law, i-law does not have an adequate mechanism. How then may we enforce i-law? Of course, one possible measure to enforce i-law is through these organizations we have now. For example is the ASEAN; the UN through Security Council because this organization was created precisely with the noble objective to establish and maintain international peace and order and, thus it could(?) make the employment of any force that is in fact one of the most important principle under Article 2 of the UN Charter. Or I-law may be enforced through self-help methods. The states themselves may enter into negotiation. Example, in our relations with China, of course we cannot declare war with China. So through self-help mechanisms and if negotiation is not successful, the disputing states may try to settle their conflict in a more forceful methods short of war. Or if they cannot agree despite the exhaustion of peaceful methods, they may go to war. Another methoid of enforcing law, recently the international community agreed to the creation of the International Criminal Court (ICC). Whenever there is a violation of the laws against mankind there 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 is by transforming these principles of i-law as part of their own laws. So that is one way of enforcing 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 to promote world friendship by leveling(?) the barriers such as barriers of trade(?) or races Even now in the modern age there is still times where there is this racial discrimination. So you have 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 problems confronting the international community. For example, karamihan sa mga diseases eh naggaling sa Asia, thats why we have the World Health Organization (WHO). The need to have common solutions, international community must be united in solving these problems confronting the international community. Another important function of i-law is this provides for the humus(?) the growth of i-law through the establishment of these organizations.

It is said that the i-law is a distinct class. Many principles of i-law has its sources in customary law, tradition. But because of the advent of modern technology, we have so many advances in so many fields, thats why the need for i-law to keep pace with these swift developments. 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 not envisioned when the UN was created. There is now a distinction between combatants and noncombatants. 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 to command self-determination of indigenous peoples asserting fundamental rights, asserting independence 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 primary sources and secondary sources. What are these principal sources of i-law? We have conventions consisting of treaties, international agreements etc, those agreements entered into between states. But, not all treaties are sources of i-law. For example, a treaty entered into by the Philippines with Japan, is it already a source of i-law? No, because that treaty is only binding between these two states who entered into such an agreement and it does not have any effect to other states who are not parties to such agreement. Generally, bilateral agreements are binding only upon signatory states, so it is not a source of i-law. How may it become a source of i-law? If the treaty contains uniform provisions and/or later on it is adopted by a sizeable number of states because of its uniform provisions. A good illustration of 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 are derived from the law of nature. When you say that an act is already a custom, it has already acquired an obligatory character. Custom refers to the long established way of doing things in the belief that it is right and obligatory. So if it lacks this conviction that it is right and obligatory, it is not a custom but rather simply a usage. One example of this customary law is this practice of granting immunity to the heads of states or members of the diplomatic service (like diplomats). On the basis of this granting of immunity is the Principle of Exterritoriality which is to be distinguished from the Principle of Extraterritoriality. The Principle of Exterritoriality refers to the exception of persons and things from local jurisdiction on the basis of customary law; whereas the Principle of Extraterritoriality refers to the exemption of persons only on the basis of agreement. What we accept is this principle of Principle of Exterritoriality rather than the 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 the Spratleys 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 the territory of a State beyond its own territory. Many of these concepts, whether you have general principle of law or customary law are already expressed in conventions, many of these concepts are now embodies in conventions. Even the rules of maritime warfare had basis in customary 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 general principles 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 emanates from 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 which are 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 of the 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 the bar, the question asked was what the examples of usage of International Law are. An

illustration is this language, words in International lawwe have apart from English we have French language but if this practice is being done for several times, it attains this customary law. In the case of general principles which really are based on the application of the law meaning the word here is not between states but rather above states. So this general principles are in many cases are likewise embodied in conventions. Examples of these principles of law : concepts of estoppel, prescription or pacta sunt servanda , rebus sic stantibus. Now what about these secondary sources of IL? Refer to the decisions of tribunals. So even a decision of local courts can be a secondary source of IL so long as it is in fact a correct interpretation of IL. Another source are the writings of publicists which means that this is impartial application of IL , persons of known probity. If you recall, one question raised earlier is that WON treaties entered into by the states are sources of IL? Of course not all treaties are direct or primary sources of IL. So when do we say that this treaty is a primary source of IL? If the treaty contains provisions which are applicable by reason of their uniformity and binding upon states, this may be primary sources of IL. So if a treaty or bipartrite treaty entered into by states certainly such treaty is binding only upon the conducting states: State A and B entered into such a treaty, this treaty is binding only upon such states and under states which are not party to the treaty are not bound unless the provisions of such treaty are known for their uniformity and in fact the creation of these concepts of IL, even if this state is not party to a treaty , this treaty may be binding to all by the principle of asession( dunno indistinct words) in other words even if the state 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 the territory of the ___ state. As a rule on the basis/existing convention, they are immune from these decisions of the local state so thats the rule. The origin of this was on the basis of this concept of exterritorialy, if we recall the principle of exterritorialy and the principle of extraterritoriality. DIFFERENCE Extraterritoriality refers to exemption of persons only on the basis of agreement whereas Exterritorialy is exemption of persons and things from local __ on the basis of customary law. So now what is the widely accepted? EXTERRIORALITY because of this sense of nationalism. 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 is binding 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, so under this doctrine of stare decisis. So this decision applies only in one particular case involving these parties but not be a basis to have such similar decision involving the different parties but the same facts. International community Cruz: the International Community may be described as the body of juridical entities which are governed by the law of nations. Under the modern concept, it is composed not only of states 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 of intl law. Sir Elman: International law not only involved states but also entities already granted international personality thats why we have this International Community which is affirmed by these principles. So IC is opposed not only by states but apart from states forming part of this IC so we have apart from states we have the United Nations, the concept of belligerent community but insurgency is domestic whereas at a higher level you have belligerency which is a recognized doctrine in IL and affords rights / such status is given wise under IL and may be considered as entity state. Its not a state but nonetheless granted the obligations of the state for the purpose of this conflict__. Now also, let me familiarize you with such terms: we have here the concepts of dependencies and colonies, one anomaly in IL where IL recognizes a situation of an entity possessed of the status of the state but strictly applying the diminition

(???) and the elements of the state opt not to qualify as such but nonetheless IL we say as a state example Vatican City which is an anomaly in IL. But also concepts of Mandates and Trust Territtories. Example the territory of Palau (you know where this? Anybody who comes from Palau 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 proper party. Direct party in International Transactions. For example the state or anything that transacts international personality is a subject of IL. It can directly rights and assume obligations. OBJECT a person / entity in respect of which rights are shown as well as obligations. For example the individual is considered an object of IL. He cannot be a direct participant in international relations or transactions. He cannot pursue in his capacity as an individual before an international tribunal unless there is an existing convention and there are instances where it allows for this individual to file a suit even against the state but again there must be a provision of the municipal law of that state. It is important that the individual must have the status 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 the actions 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! Parang kinder! So it is really important for the person to be linked to his own state because what is contemplated in the IL is the injury caused not to the individual but to the state. It means that if a person is injured by reason of the action of a third state, the injury under the IL is the injury caused to the state of that injured national because it has the duty of perfection. The state must give protection to its own nationals wherever they may be . if you recall the case of Flor Contemplacion, that was the time that our Digong burned the Singaporean Flag. So the injury is not the injury to the person but rather the injury to the state itself because in return for this duty of protection, there is this corresponding obligation on the part of the state and what is that? The duty of allegiance and obedience given by the person to his state. I recall in 1975 if you were born? Tatanda din kayo. In 1975 there was this chess match between Korchnoi (Victor) versus Carpo and this was subject of the bar question. Supposing Korchnoi failed to be paid of his price money and at the time he was a citizen of Russia , so at the time of 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? He cannot have this remedy. He cannot file suit before the International tribunal . I mentioned to you 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 of Nations was the predecessor of United Nations. Now, there are many writers who said that there is no such distinction because two terms are similar but strictly speaking a state is a legal 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, normally there is no such a distinction between the concepts of state and nation. How do then we define a 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: PEOPLE TERRITORY GOVERNMENT SOVEREIGNTY Other authors argue that there are other elements such as recognition but again recognition is a matter of discussion it is a political decision of a state meaning there is no worldwide acceptance. Is it possible? For an entity to resist as such in the absence of this elements ? for example this case in SOMALIA , the intl community made a decision to send relief stopped at etc.. granting this is the situation, will this be considered SOMALIA as state? People, of course,

territory? Yes, sovereignty, government, is there such a govt? NO, so the possession of the status 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 gumagalaw kaya nomadic.. so what element if any is not present in nomadic tribe? Government. It does not have government. the element of government presupposes that there is this nationality that can compel obedience that you can ensure order- that is the objective test. The subjective test is its capability to comply with international law obligations. This is not existing in this case. DEPENDENT STATES Cruz: The term dependent state is a legal paradox because the status of statehood implies the idea of independence. To say than an entity is a state is to acknowledge, without more, that it is independent or that it is possessed of the indispensable attribute of sovereignty. In light of traditional doctrine, therefore, the institution of the dependent state presents a curious anomaly Neutralized States an independent state, whether it be simple or composite, may be neutralized through agreement with other states by virtue of which the latter will guarantee its integrity and independence provided it refrains from taking an act that will involve it in war or other hostile activity except for defensive purposes. This is obviously desirable from the viewpoint 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 state that is not independent. Dependent states is an anomaly in international law and good illustrations of a dependent state : Suzerainty and Protectorate. Also in the concept of neutralized states as distinguished from neutral states. There is distinction bet neutralization and neutrality. A state which is classified as neutralized state cannot comply with 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 the neutral state does not involve itself in conflict . The basis of neutrality is the attitude of the state in staying in a conflict whereas neutralization has a basis from this agreement it has with other states. So ang basis mo? Agreement with other states. So it is not only a state that really 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 important principle of the UN charter under Article 2 is comply, ensure that it complies the action be taken by the security council - taking of an enforcement or preventive action of a neutral state.. 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 civil government to take up arms against the legitimate government. So take note, the need for this group to show semblance of civil authority rather than purely an armed group. So what distinguishes a mere rebellion from this belligerent community is in the case of the latter, apart from this armed group there is this civil form of government directing the conduct of this resistance. Thats why in many armed resistance wherein it desires to overthrow the legitimate government, it must show semblance of this kind of government and this is in

"

"

"

"

fact one of the conditions for the grant of this status as such belligerent community. Even in the case of the NPA, of course this refers to the armed group but nonetheless we have this NBF(?) supposedly directing the conduct of the ___ government. And so here before the grant of recognition to this rebel group, in event that the armed elements of this group cause death or injury to a third party/state or 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 the responsibility of the legitimate government in the absence of recognition. Why? Because this group of rebels is still subject to the municipal laws. In other words, if these rebels are captured, they shall be proceeded in accordance with the municipal laws including the criminal liability. And how is this done? The remedies available in the existing structures of this government that is the filing of the proper charges before the court and other remedies available, not on the basis of the provisions of i-law in the absence of this recognition. But there are instances where there may be a need to grant this status. For example where this group of rebels has seized a substantial portion of the territory or the conflict is such that it is uncertain which group is winning. Or this rebel group has exercised the prerogatives, for example, it imposes a blockade, 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 belligerent community. So if the recognition of the group as a belligerent community comes from the legitimate government, the recognition is general, it is binding. If, on the other hand, the recognition is made by a third state, that recognition extended by the third state extends only so far as its relations applies to the contending forces and so that third state which gave status shall be governed by the laws of war or neutrality. But those other states not giving such recognition do not have such similar status as one or like this third state granting recognition to this belligerent community. So what happens if there is such recognition as such belligerent community? It acquires an inchoative status as a state for the purpose of the conflict it is waging against the legitimate government. And so it is invested with certain rights 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 on the open sea. And so, once this recognition is extended to this group, it is directly responsible for any injuries it cause or even death to foreigners. So the state of the foreigners may hold directly responsible, not any more the legitimate government, but rather it is now these rebels who caused this damage or injury to its nationals.

We have mentioned this concept that in i-law it is really not the right of the individual or the national that has been violated but the right of its state. And what is the right of this state? To give protection to its nationals because the national in return has the duty of allegiance and obedience. And one related doctrine is the Doctrine of Indelible Allegiance whereby a national is not allowed to renounce his nationality. If you recall, during the campaign of the US in Afghanistan, there was this American national that was fighting sideby-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 prohibited to do so. We have already made mention about the case of the Vatican on the basis of the Lateran Treaty. There are only about less than 500 residents or nationals that are residing in Vatican, but many of them are there by reason of their positions. For example, they are there because they belong to the religious, many of them are priests, cardinals. We have also the ambassadors. In fact there was a report that there are only about 572 residents of Vatican and many of them are by reason of there position. And nearly 400 are permanent resident of this City or statea state within a state. Applying again the elements of the state, Vatican city

is considered an anomaly of i-law because it is granted the prerogatives of a State through its head which is the Papal Nuncio, considered a sovereign and in fact is able to pursue foreign relations 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 their administration. " One of the organs of the UN is the Trusteeship Council and which has the same status as the other organs of the UN such as the Security Council and the General Assembly. But, nonetheless, it no longer functions as such because precisely there are no more trust territories nowadays. But this concept is still relevant for those to prevent the outright annexation of those territories by the more powerful states. You know after the war, there may be states which may be the subject of subjugation and to prevent this from happening on the basis of the provision of the UN Charter by this mandate given to the Trusteeship Council. In the case of strategic areas, the need of approval from the Security Council and for the non-strategic areas is approval of the General Assembly.

For the Administrative Body to be considered as possessed of an international personality and treated as a subject of i-law, it is important that it be autonomous and that it should 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 growing view to treat or characterize the individual as a mere object of i-law. What is the significance of this individual as an object of i-law? In other words, the person is simply that it is only through the instrumentality of his own state that he may be a participant. The enjoyment of rights, and more so, the enforcement thereof, including the assertion of such rights, can only be done through the instrumentality of his state. Thus, even if the national is injured by reason of the action of a state, he on his own cannot have direct redress from the institutions of that state unless he is represented by his own state. And thus there is a need therefore for this person to be possessed of a nationality. Because it is only through his nationality that his rights 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 a subject of i-law. The state is composed of individuals whose collective will is the will of the state. But because there are now manifestations to give such more important treatment to the individual. For example, in the Charter of the UN, it starts with the preamble proclaiming the 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 old yearning of people to banish all forms of war use of force to settle conflict s between and among states and, of course, between people because the recent development at present is that wars are no longer wages by states but rather by peoples within the states. And even on the basis of this International Human Rights Convention and the need to conform and abide by the principles under the UN Charter. One of these more important principles is that all members 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 an erring state. Another manifestation is that there are a good number of treaties, more so, those emanating from the different countries which are focused on human rights violations and the protection of these basic human rights. So there are now states giving direct access to individuals to file suits against states in their courts on the basis of a law or on the basis of a treaty. Another manifestation, the concept of hostes humanis generis. What do you mean by this concept? Enemies of mankind; because they commit crimes in violation of i-law and therefore whenever these persons classified as such are captured by any state ,on the basis of

i-law, shall be tried by the capturing state. In other words, the responsibility is directly conferred/ imputed upon the responsible individualthe pirate or, at present, the terrorist. Or on 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 is one of the ways of enforcing i-law right after war. The war criminals may be tried or prosecuted 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 the matter of the treatment of aliens while they are in its territory. As part of the international community, states are obliged to observe this international standard of justice in the treatment of aliens; in fact, there is a whole chapter on the treatment of aliens. What do we mean by this observance of this international standard of justice vis--vis aliens within the jurisdiction or territory of the local state? Aliens are given such respect in accordance with what should be observed in the international community. So if the standard of justice in a country falls below the normal norm, for example, the simple offence of reading(?) a religious article is already punishable by (let us say) cutting of fingers or pulling out the eyes, of course this 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 such protection in accordance with what is being observed by the international community. So in case, 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 of persons while in the territory of the other state. Or under the Genocide Convention. Under this convention, it prohibits the mass extermination of nation, religious or racial groups. There is such intention to destroy in whole or in part. One practice that is abhorred or prohibited in the Genocide Convention is the segregation of the infant from their parents; or causing physical or mental harm to members of a community. When the former Yugoslav state collapsed, there was this ethnic cleansing so the responsible officials were tried and made liable by the international tribunal. So here, the convention meets directly the status of persons or individuals. Under the Hague Convention of 1930, it provides fro the rules of engagement to prevent or minimize the state of statelessness; the condition of a person being stateless. One such 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 where he or she was born on the premise that the parents are unknown. Ive made mention to you already about this infant placed on the doorsteps of this man in Japan, the mother was japayuki, so presumably, the father is a Japanese national. Or under this Convention Relating to the Status of Stateless Persons. Stateless persons are already bestowed or given certain rights. Such as the right to education. So these are conventions made directly applicable to individuals. Even under the Doctrine of Incorporation, which is to be distinguished from the Doctrine of Transformation, wherein without the need of transforming these principles of international law as part of our own laws. The big fact that we are already part of the international 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 distinguishes the UN from its predecessorthe League of Nations, was that the latter did not provide for the clear outlawry of war and thats why this organization failed. Not anymore, under the present charter of the UN, there is such provision as already embodies in Article 2 pertaining to the principles of the UN. This organization became a symbol of the condition(?) and selfdetermination of peoples to punish forever this terrible predicament(?) of war and other more drastic use of force in the dangerous(?) states inter se.

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 and subsequently adhered to by 21 other states. They agreed that they shall utilize al their forces against the Axis powers(Germany and Japan) and that they would not enter into separate agreements with the Axis powers. The blue print of the UN was the Dumbarton Oaks Proposals. 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 certificates of 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 of the agreement of the states. How many states are now members of the UN? They started from an original membership of 51, including the Philippines, subsequently so many states became members (known as elective members). Currently, there are about 193 member in the UN. It is also considered as a constitution because the Charter provides for the mechanism in 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 between the obligations of a member under the charter and its obligations under a separate and different 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 international law is for the same purpose why we have this UN. Basically, the primary reason for this UN organization is to establish international peace and security and to take collective measures for the removal or elimination of hindrance to peace. Another important reason is to promote cooperation among nations in the solution of common problems confronting the international community which may be of humanitarian or cultural character or even economic. How did the international community justify its actions in Somalia? Because of this Article 1 provision on the enshrined purposes of the UN organization to come up with a solution whenever there is an international problem confronting the international community. Because of the suppression employed by the powers causing extreme hunger, of course, the international community may utilize its forces in taking enforcement or preventive action and as a mean to transport the needed 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. 12/05/12 PIL DISCUSSION Now very important in Article 2 of the UN Chapter is that it speaks of the 7 principles which form the basis for the operations of the UN organization. 1. The Organization is based on the principle of the sovereign equality of all its Members.

First off, the Organization is based on the principle of equality and self-determination of people. Thus, the clear manifestation of this principle is in the General Assembly itself which is one of the important organs. There are 6 of them in the United Nations but the general of the 6 organs is the General Assembly and each member of the UN can cast 1 vote on the basis of this principle of sovereign equality among the states. Despite the differences whether were talking here of a powerful state or a weak state, it is nonetheless entitled to 1 vote. But there is much to be desired in the Security Council in that there is a difference among the members and because the in the Security Council, there is a qualification of membership whether belonging to this permanent membership or to the non-permanent. Nonetheless, the organization is premised on this concept of sovereign equality. And it follows therefore that there must be this of non-intervention on what may be purely domestic matters of the state and again this is filled with another principle that we will discuss later on.

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 have emphasized repeatedly on the concept of Pacta Sunt Servanda and we have mentioned that even under Art. 103 of the UN Organization Charter, whenever there is a conflict of the members of the UN vis-a-vis his obligations under a separate agreement and what applies would be the obligations of the members under the UN charter because precisely the need to ensure compliance with whatever obligations they may have in this organization under this principle of Pacta Sunt Servanda. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

Another principle is that all members shall settle their conflict in a peaceful manner or by peaceful means. If you recall the important purpose here is the maintenance of international 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 of aggression that threatens international peace and security. If you recall what distinguishes this organization from its predecessor and in fact which makes it successful unlike its predecessor, the League of Nations, is that the latter did not have this clear operate of war in all its form. So we have this principle embodied in Art. 2 of the 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 of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations.

The most important of the 7 principles is found in Principle #4 and this refers to fact that 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 would threaten sovereignty and integrity of the state and is consistent with what is embodied in the UN charter. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

Now another important principle is the need for the members to assist the organization in the taking of whatever measure that they have adopted. So the need to participate in the enforcement and preventive action that the Security Council will decree. For example, whenever the Security Council adopts a resolution for the taking of a preventive action or even whenever it calls for an enforcement action and thus the states are obliged to either send contingents, humanitarian or it may be not military. In so many instances in the past, the Philippines had sent contingents, not military but rather humanitarian because the mission is composed of doctors, nurses, and other non-military personnel. Recently, the Philippines also sent when the UN Organization recognized this former of Indonesia which is Timor. But you know that Timor used to be a colony of Portugal and the state of Indonesia annexed Timor as part of it. This move of Indonesia was not accepted by the international community and of course later on Indonesia ceded to the demands of international community and of course, we know, that Timor is already a state. In fact, the United Nations in order to achieve this recently state participated in so many undertakings that form the immediate

establishment of this territory act. In the BAR, the question asked was lets say if the Security Council decrees the taking of an enforcement action and demands contingent and the Philippines what we sent was not military but simply a mission of doctors from the Armed Forces as well as nurses and . a commitment of the Philippines as member of the international community so it did not send military contingents. 6. The Organization shall ensure that states which are not Members of the United nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. Another important principle is of course the fact that the members shall ensure that even 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 UN must ensure that the non-members also adhere to this concept. If youve been reading the papers recently, the General Assembly in fact unanimously recognizes Palestine as nonmember observer state. So you know, it used to be mere authority not even a state but it has already attained such status but is nonetheless not yet a member or a formal member of the 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, the Palestinian Liberation Authority and in fact is now made a non-member but nonetheless entitled to an observer status but recently it had acquired a status of a non-member observer state. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

Another important doctrine or principle under Art. 2 is what is known as the domestic jurisdiction clause. And this is simply consistent with the settled doctrine of non-intervention. Generally, the international community can only intervene in the matter classified as international. Whenever a conflict threatens international peace or security that would be a justification for the international community through the Security Council to adopt measures for the prevention of any form of conflict that threatens the international peace. So a purely domestic affair will not justify the international community through the Security Council of the UN to intervene unless of course it breaches the international peace. But the general rule is that we apply the domestic jurisdiction clause. Whatever happens in a state should be classified as internal. So if there is a group of people or a group of rebels trying to overthrow the legitimate government, that itself will not justify the UN through the Security Council to participate or intervene because the principle we follow that is embodied in Art. 2 is the principle of domestic jurisdiction clause. Of course the exception would apply in the event that this conflict or rebellion taking place in the territory state aggravates and poses a threat to international peace. And there being so many instances when the international community justifies its action on the basis of the fact that people existed survival of people with the state. Example is the case of Somalia or in the case of the former Yugoslavia Republic because of and so the Security Council is justified 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 and even up to the time of Estrada administration. Now this conflict cannot be said to be international in nature. Thats why whenever there are peace talks and agreements have to be made, it is not the President who is the signatory because to do so would be giving this group a recognition as international belligerent and so in order to put into the minds of people and of course the members of international community that this is purely an internal matter although there may be some assistance coming from other states. For example the state of Indonesia and Malaysia not really intervening but playing the role of peace maker. And so clearly in order to prevent that acquisition of a status of belligerent community, only lower-ranking officials of

the state can enter into whatever agreements. In the case of the Philippines, it recently had this MOA with the MILF and of course the declaration of the BANGSAMORO where there are numerous petitions filed before the Supreme Court. It is well taken that nowhere in the Constitution does it provide for the entity, BANGSAMORO. What is mentioned in the Constitution is an Autonomous Region, right? Thats why we have this ARMM and the present administration has in fact admitted that its only the concept of Autonomous Region but nonetheless 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 this agreement in 1976, that time when the beautiful first lady Imelda Marcos, so he was asked by his husband to seduce (not really seduce. LOL.) the of Libya. So the signatories of that MOA, they that the agreement was signed by a lower functionary of the Philippine government 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. Have you been there? (Joke!) Less than 3 weeks after the twin towers were destroyed, the UN through the Security Council passed this UN Resolution ordering the members of the United Nations to prevent and suppress the , to support the Organization. So those states which did not comply with the obligation embodied in the resolution shall be a subject of economic and diplomatic sanctions and there may be use of military states against those which do not observe this resolution and which continue to support the terrorist organization. In fact, this resolution also obliges the members to share the information of funds of these terrorists organization. In the BAR, the question asked was about a situation the UN about the Arab League proposing a resolution to include in the agenda of the General Assembly a discussion about the desire of the Muslim population in Mindanao to form a separate state. Now how would you attack this problem from the viewpoint of international law adopting what we have discussed in Art. 2. What principle would apply here? This is a purely domestic affair in the Philippines and thus there is no basis in international law for this Arab league to intervene in such domestic jurisdiction. So from the viewpoint of international law, we apply here the principle of non-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 of international peace and security ; and (2) when the parties to the dispute themselves request the assistance of the international community. For example: the state in conflict desire the intervention of the UN more particularly the Security Council. Of course that would be an exception to the principle. Another would be of course on the basis of another principle that we 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 so there is an important provision there that an act against a member is an attack against all of them and that it may in fact assist the attacked member in the NATO. MEMBERSHIP (1) Original or charter members; and (2) Elective members Basically there are 2 kinds of membership in the UN. the first one wherein the Philippines is also a part of it is the original members. If you recall there were originally 51 members including Poland but Poland is not an active participant but is nonetheless allowed as a signatory and all the other members and now there are 193 members in the UN who are considered 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 favorable recommendation of the Security Council, a state cannot be a member of the UN. So there is really no distinction as to the rights between original and elective members. It is simply manner of admission. It does not have any relevance as to the rights and obligations of members. So what are the qualifications for an entity to be qualified for membership? (1) Of course it must be a state.

(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 any preventive or enforcement action that will be adopted by the Security Council and if one entity already classified as such but nonetheless because of self-imposed limitations or because of some 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 or expulsion of the member of the United Nations. When may a member of the UN be suspended? If that member is a subject of a preventive action as decreed by the Security Council, it may be suspended. Now suspension here refers only to the rights but not the obligations. For example, the obligation of a member to financially contribute depending upon the capability. So the fact that a member of the UN is suspended does not mean that it is free from its obligations under international law. So the right here may refer to the membership or entitlement to be a member of any principal organs of the United Nations and so if it is suspended, it cannot participate in any meetings. But nonetheless, it is still duty bound to observe the principles and of course pay financial obligations 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 the qualified majority in the Security Council, at least 9 members including the permanent members. If you talk of a simple majority in the Security Council, any 9 votes regardless of the 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 the Security 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

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 resolution shall 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 elective What 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 and GA 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 though not 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 is represented 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 be preferably 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

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 that there 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 by 2/3 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 the Yalta Voting Formula. And this is being asked a number of times in the bar exam. 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

unity of these 5 permanent members and because of their influence in the physical power. There is also this important concept known as the Uniting for Peace Resolution. 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 the international 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 parties before 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 or issues 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 asked number 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 be sued 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

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 before the 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 be made 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 The Secretariat is 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 these characteristics, it is considered as an international person. But the question now is whether or not this entity already possessed of these characteristics is already a member of international community? 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 you have states members of the international organization such as the United Nations still not recognizing each other outside the UN. For example, the case of the Philippines, it was already an original member like China and Russia. So these states are already members but nonetheless outside the UN they do not recognize each other. It is only when there is former establishment of diplomatic ties and that was in 1975 that recognition was extended, the status 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 these characteristics nonetheless, it is not automatic that it is already a state member of the international community because as Ive mentioned earlier, the need for such status to be acknowledged, recognition must be extended. The fact that these elements are existing does not make it mandatory. Thus, it is still a political decision that must be made and of course recognition as a political decision is not subject to judicial review. It is actually within the ambit of act of state.

On the other hand, the other theory which is the minority view or the constitutive theory states that whenever these elements are present in an entity, it can demand as a matter of right such recognition. It solely follows. It is legal and obligatory for recognition to be extended to this entity possessed of these elements. But again, what is is the declaratory theory the need for the member states to still recognize 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 the executive branch. You have the President as the Chief Executive. And what is the basis for this? Because of the Presidents treaty making power. Not only this, but also the right obligation which simply means the right to receive as well as to send diplomatic representatives or the fact that the President or the Chief Executive of the Republic is the foreign spokesperson. Of course this task may be delegated, and is delegated in fact to the Secretary of Foreign Affairs. This power being executive is not within the ambit of judicial review. It is a political decision. It cannot be raised before the Courts. So for example whenever the Department of Foreign Affairs through the Secretary, in fact, make a declaration that the Philippines recognizes the Palestine Liberation Organization as a state. It is a political decision. 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 to treat the other as such and if it is a state given recognition, it is willing to enter into diplomatic relations with that entity. In the case of the government, it is a declaration that there is this individual or group of 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 observe the 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 because recognition of belligerent community simply means that for the purpose of conflict that this group is waging against the legitimate government, there arises rights on the part of this group or the exercise of belligerent rights such as the right to visit and search, the right to impose blockades and establish prize courts. All of these under the rules of war and rules neutrality. 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. We mentioned so many times earlier that sovereignty is perpetual. It is continuous. There may be a change in government, but it does not affect the state itself. There may a change from democratic 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 way around. 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. So meaning, not really with full independent status. So it does not follow that when there is this recognition of government is already recognition of the state. Now it does not also follow that whenever there is the sending of fact finding commission to the territory of an entity it is already recognition, it is not so. Neither is the sending of consular officers can be considered as a recognition. You know in subsequent discussions, we will be able to distinguish why distinction between diplomatic agents and consular agents. Consular agents are not diplomats under international law. In fact, they do not have the same rights and privileges.

Now there are 3 kinds of de facto government: (1)A government de facto which is established because of the action taken by the inhabitants in overthrowing a legitimate government; or (2) it may happen that the inhabitants seceding without overthrowing the legitimate government. For example the aspirations of the Bangsamoro people. So now we have the recognition of the Bangsamoro. Nonetheless, you cant say that these people assert independence. In fact it is a recognition of such right in the UN chapter. You have here a situation wherein the inhabitants asserting independence, seceding from the government without overthrowing the government. In the first one, the people themselves rise in arms against the legitimate government. For example during the time of Corazon Aquino in 1986 and in subsequent years thereafter, there were so many coup attempts. And for the purposes of discussion, lets say if Honassan at that time succeeded in overthrowing the legitimate government, what would be the status of such government? De facto government! That is of course under international law but if within our own laws, our constitutional law, it cannot be classified as such. It is simply a usurper, beyond constitutional methods. (3) On the 3rd situation: a de facto government established at the course of war because of the occupation by the invading troops of the territory of the other states and that other state established a government. Example: during the time of the Japanese military occupation. Of course, international law rules upon the establishment of a government by violent method thats why you know, there will be an international misunderstandings should these states recognize this de facto government as de jure. And of course this will bring about conflict. Thats why to prevent this international misunderstanding, there is a need therefore to show satisfaction of these essential requirements. For example, if you recall what I have mentioned 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 able to have control with the popular acquiescence of the people. Thats the objective test. The subjective test here is that this group representing itself as the government and making it a group binding it to the people of the state is really able to comply with the obligations of international law that it is able in fact to observe international law. And the existence of this test, both subjective and objective, means that recognition here is de jure. Of course, in the absence of the satisfaction of any of these tests, the recognition is simply de facto.So thats why this question arises whenever a new government is formed not in according to the usual constitutional peaceful methods but rather would resort to violence. Whenever a government assumes power by violent means, there is now an issue on whether to recognize this government as such de jure so thats why there are these tests to prevent misunderstanding. Now, international law in fact provides for these rules that the international community or family of nations would not recognize a government established by violent methods. Lets say revolution, civil war, coup d etat, or other forms of internal violence and this is known under Tobar or Wilson Principle. So there is no recognition extended to a government when that government is established through violent means or internal violence. You also have another doctrine which is the Stimson Doctrine which prevents recognition to a government established by external aggression. So this now precludes recognition of the government as a result of an external. Again, going back to this important basic concept, we mentioned in the principles under Article 2 to refrain from the use of violent force. So under the Estrada Doctrine, this is not named after your President although he was responsible for making war and he was successful at that. (nagjoke si Sir. $) so under the Estrada Doctrine, the government will continue or not continue its dealings or relations with a state in which there is under a political upheaval. And whatever actions it chooses to take should not be construed as a judgment on the right of its people whether to retain or replace its government. So it is not a judgment on the legitimacy of the government. This has been asked for a number of times not only in 2004 (BAR). What do you think is the rationale for this doctrine? This relates to

what principle? Again, going to what principle we mentioned for so many times whenever there is such conflict? The principle of domestic jurisdiction. The Estrada doctrine is simply an affirmation of the domestic jurisdiction clause. Again, it is not subject to judicial scrutiny. So we mentioned here the 2 kinds of recognition de jure and de facto. Of course we know that the de jure recognition is permanent while the other one is provisional. And in the case of de jure recognition, this brings about full diplomatic relations, not so in the case of de facto recognition. And another distinction here is in the case of de jure, it means that there is a right to the properties of the predecessor. So the right given to the recognized government which is not so in the case of a de facto recognition.

So what are the consequences of this recognition of state and government? (1) first you mentioned already full diplomatic relations. And this simply means whenever there is recognition one state is able to send and receive diplomatic representatives. It is able to maintain diplomatic premises or mission in the territory of a recognizing state. It also gives rise to establishment of so many treaties, etc. between the recognized and recognizing state. (2) The second effect of course is the right to sue in the courts of the recognizing state. So when there is recognition given by a recognizing state to another it means that there is a right to sue in the courts of a recognizing state. But again, take note, this is not a matter of right. The power to sue in the courts of another state is not a matter of right, it is a feature of comity. And there can be no comity without such recognition. And so in the case of Russian Socialist Federated Republic vs. Cibrario, you have here an action filed by the petitioner Russian Soviet Republic in the US Court for fraud and breach of contract but at that time there was no recognition extended by the US to Russia. So, it is not a matter of right. The right to sue by the petitioner in the US courts is not one of right because in the absence of such recognition, it does not have such. But the fact that there is here a termination of diplomatic relations a breach. Nagkasiraan sila. For example at present, you have the United States and Cuba such that the relations on animosity. There is here unfriendliness. But does that situation mean that the right to sue is withdrawn? NO, it does not follow. The fact that there is breach short of war itself, that is the only situation where the right can be withdrawn but not mere breach of diplomatic relations which does not mean that the right to sue will no longer be exercised such as in the case of Cuba. It is an erroneous premise to state that the non-suability of a foreign state is an effect of recognition. It is not so. Because this attribute, the right not to be sued in the other states is inherent once the entity possesses as such status of a state. It is not an attribute of recognition, but rather the principle attributable here is the doctrine of state immunity. Of course we know this doctrine of state immunity which had its origin in the customary law. You know the concept to bring the sovereign before the courts of the local state would be to vex the peace of nations if you bring animosity, international disorder, or anarchy. There is here a conflict. So the applicable principle is state immunity.

Recognition of Belligerency If you recall we have mentioned the concept of belligerent community. And of course the initial stage of this is insurgency, rebellion. And if rebellion becomes widespread and serious, it may be given a status of a belligerent community. But in the absence yet of recognition, again, what applies? DOMESTIC JURISDICTION CLAUSE internal matter. Thus it is an internal matter if forces of these rebels inflict casualies on the nationals of a 3rd state, foreigners. Who is responsible? In the absence of recognition, they are still liable under the or the rebels who caused damage, injury or death to the other nationals cannot be made directly

responsible for they are still under domestic laws or municipal laws. So they should be made responsible under the criminal laws of the land short of this recognition as a belligerent community. So what distinguishes belligerency and insurgency, among others? One is that insurgency is under the control of military courts, not so in the case of belligerency. There is a shadow government (?). That is why there is a need to show semblance of a civil form of government in order for recognition of this group as a belligerent community will succeed. So when is such status given? It may extended by the parent state or the other states. If the recognition is extended by the parent state or the legitimate government, that recognition is general and binding upon the rest. But where recognition is given by other states, this recognition applies and is effective only to them the relations to this belligerents. But as to those states not giving such recognition shall not be governed by the laws of neutrality. It shall be governed by the laws of peace to the legitimate government. It follows that there is such recognition, the rebel forces shall be responsible because of this grant of belligerent status for the purpose of war or conflict it is waging against the legitimate government. So since it is given such rights and privileges under the laws of war and laws of neutrality, what are some of these rights that may be exercised by the belligerent community? I mentioned already this right of visit and search. And of course it follows the right to confiscate contraband items and whenever these are seized, these are seized as contrabands. Usually, recognition is extended whenever the rebel forces substantially controlled a good portion of the territory such that it makes the outcome uncertain. The war or the conflict being waged is already widespread and serious and that makes the outcome uncertain. And so it is possible to grant such status.