PUBIC INTERNATIONAL LAW

International law
Body of legal rules which apply between sovereign states and such other
entities as have been granted international personality (Schwarzenberger)
Law of nations
Divisions of International Law
Laws of peace
-govern normal relations of the states
-govern states not involved in the war inter se
-govern states when war ends and peace is restored
Laws of war
-govern relations of warring states between hostilities
Laws of neutrality
-govern relations of states with belligerents (hostile states) or those involved
with war
Distinctions with Municipal Law
Private international law: also conflict of laws, municipal law or private
law
Public international law: relations of international persons inter se with in
the field of international law
- Monism: a view that there is only one kind of ultimate substance
- Dualism: a theory that considers reality to consist of two irreducible elements or modes
Monism
Duailsm
Oneness or unity of law
Dichotomy ( the process or practice
of making such a division) of law
The main reason for the

essential identity of the 2

spheres is that some
fundamental notions of
international law cannot be
comprehended w/o the
assumption of a superior legal
order from which the various
systems of municipal law are
derived by delegation
Law is essentially a command

binding upon the subjects

independently of their will and
it is ultimately the conduct of
individuals which it regulates

DUALISM
Dichotomy ( the process or practice of making such a division) of law
Municipal Law
International Law
Issued by a political superior for
Not imposed upon but simply adopted by
observance by those under its authority
states as a common rule of action
among themselves
A law of sovereign over those subjected
A law not above but between sovereign
to his sway
states and is therefore a weaker law
Consists mainly of enactments from the
Not derived from any particular
lawmaking authority of each state
legislation but from such sources as
international customs, international
conventions and the general principles
of law
Regulates the relations of individuals
Applies to relations inter se of states and
among themselves or with their own
other international persons
states
Violations are redressed through local
Questions are resolved thru state-toadministrative and judicial processes
state transactions ranging from peaceful
methods like negotiation and arbitration
to the hostile arbitrament (judgment of an
arbiter or arbitrator ) of force like reprisals
( the act or practice in international law of
resorting to force short of war in retaliation for
damage or loss suffered. b : an instance of
such action )or even war
Breaches generally entail only individual Responsibility for infractions is usually
responsibility
collective in the sense that it attaches
directly to the state and not to its
nationals
Relation to Municipal Law
Rule: without an express declaration to this effect, states admitted to the
family of nations are bound by the rules prescribed by it for the regulation of
international intercourse.
The law of nations, although not specially adopted by constitution or
municipal act, is essentially a part of the law of the land whose obligation
commences and runs with the existence of a nation
Doctrine of Incorporation: affirms the recognition of the principles of
international law in the constitutionsas in Art 2 of 1987 Constitution

Section 2. 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.

Doctrine of transformation: generally accepted rules of international law

are not per se binding upon the state by the lawmaking body and so
transformed into municipal law ; only when so transformed will they become
binding upon the state as part of its municipal law.
Criteria applied in resolving conflicts bet municipal and intl laws:
-basic rule: attempt to reconcile the apparent contraindication and thereby
give effect, if possible to both systems of law
*presumed that municipal law is always enacted by each state with
due regard for and never in defiance of the generally accepted principles of
international law
* all judgments and judicial proceedings which are not of a political
complexion of the de facto government during the Japanese military
remained so after the occupied territory had come again into the power of
the titular sovereign, it should be presumed that it was not and could have
not been the intention of General MacArthur in using the phrase processes
of any other government in said proclamation, to refer to judicial processes,
in violation of said principle of international law.
*where conflict is actual and not merely apparent, there is no question
that a categorical choice will have to be made
- From intl viewpoint: to sustain or uphold the supremacy of municipal
law over international law could lead to international anarchy and
lawlessness, each state discarding and repudiating such parts of
international laws are inconsistent with and inimical (unfavorable) to its
national interests, ambitions and policies
- National laws must yield to the law of nations, for conflicts
- A sovereign cannot be permitted to set up his own municipal law as a
bar to a claim by a foreign sovereign for a wrong done to a latters
subject
- RULE: international law is binding upon the state as a corporate
person and no provision of the national constitution or act of the
national legislature or decree of the executive or judicial agencies can
change the force of its provisions in so far as the legal relations of the
state toward other states are concerned .
Constitution vs Treaty
Treaty is rejected in the local forum but is upheld in the international tribunals
as a demandable obligation of the signatories under the maxim pacta sunt
servanda (agreements must be kept)
Declaration of THE Rights and Duties of States by International Law
Commision: every state has the duty to carry out in good faith its obligations
arising from treaties or other sources of international law and may not

invoke provisions in its constitution or its laws as a excuse for failure to

perform this duty..on the contrary
Most constitutions contain provisions empowering the judiciary to annul
treatises and the legislature to supersede them with statutes, establishing
the primacy of local law over the international agreement
RP: all cases involving the constitutionality of any treaty, executive
agreement or law shall be heard and decided by the SC en banc, and no
treaty, executive agreement or law may be declared unconstitutional
without the concurrence of at least 10 members
Gonzales v heachnova: whether an international agreement may be
invalidated by the courts, the Constitution authorizes the nullification of a
treaty not only when it the Constitution with the Congress but also when it
runs counter to an act of Congress

Basis of International Law

Law of Nature: higher law or rule of human conduct independent of positive
enactment and even of special divine revelation and binding always and
everywhere in view of its intrinsic reasonableness
- There is a natural and universal principle of right and wrong,
independent of any mutual intercourse or compact , using reason or
conscience
Law of Coordination: a more positive identification with acknowledgment of
the law is necessary to make it binding on the states it purports to govern, so
that any state withholding its consent can disclaim any responsibility of
observance; implied in customary law and presumed in general principles of
law
Law of Eclectics or Groatians: Father of international law; based on the dictate
of right reason (natural law)and practice of the states . in the event of conflict
between the 2, law of nature prevails
Sanctions of International Law
Compulsive force of reciprocal advantage and fear of retaliation
Appeal to public opinion, publication of correspondence, censure by
Parliamentary vote, demand for arbitration with the odium attendant on a
refusal to arbitrate, rupture of relations, reprisal
1. Inherent reasonableness of intl law and that its observance will redound
to the benefit of the whole society of nations
2. Normal habits of obedience ingrained in the nature of man as a social
being
3. Respect for world opinion to project an agreeable image
4. Constant and reasonable fear that violations of intl law might visit upon
the culprit the retaliation of other states

5. Machinery of United Nations because of its moral influence and power to

employ physical force
Enforcement of Intl Law
Observance- subjective and mainly dependent on the volition (will) of the
entity which is supposed to be governed by the law
Enforcement process by which such observance may be compelled, by force
or threat of force
1. Through international organizations or regional groups like UN and
Organization of American States
- Where grievances are presented, discussed, adoption of measures
necessary to compel compliance;
- Done by UN Security Council and ICJ, special arbitral tribunals
2. Through amicable methods like diplomatic talks or hostile measures
(retorsion- retaliation and reprisal-force short of war)
- If these fail, war is last resort where laws governing conduct of
hostilities and laws of neutrality are used by physical force by
belligerents and neutral states where violations of these measures
result to prosecution of war criminals and collection of reparations
3. By containment of aggression
4. By each member state treating international as part of their municipal law
Functions of International Law
Primary funx: to establish peace and order in the community of nations and
to prevent employment of force (war) in all intl relations
Promote friendship by leveling the barriers (color and creed) that have so far
obstructed the fostering of a closer understanding in the family of nations
To encourage and ensure greater intl cooperation in the solution of certain
common problems of a political, economic, cultural or humanitarian character
Aims to provide for the orderly management of the relations of states on the
basis of the substantive rules they agreed to observe as members of intl
community
Distinctions with Other Concepts
International morality or ethics- embodies those principles which govern the
relations of states from the higher standpoint of conscience, morality, justice
and humanity ; similar to law of nature and international comity (those
rules of courtesy observed by states in their mutual relations, in that
violations of its precept are not constitutive of grounds for legal claims)
International diplomacy- the application of intelligence and tact to the
conduct of official relations between independent states ; similar to jus
feciale (law of heralds) or law of negotiations and diplomacy
- Gave effect to formal declarations of war, rendered advice on
questions respecting war and peace, acted as heralds and
ambassadors and received and entertained envoys of foreign states

International administrative law- body of laws and regulations created by the

action of international conferences or commissions which regulate the
relations and activities of national and international agencies with respect to
those material and intellectual interests which have received and
authoritative universal recognition
- Interest are international communications, protection of literary and
artistic rights, prevention of crime and promotion of health and
education

Present State of Intl Law (in a state of transition)

Receding conditions between combatants and non-combatants
Growing claims over maritime domain of states
General disapprobation of intervention
Outlawry of war
Expansion of the horizons of man into the realm of outer space
Sources of International Law
Art 48 ICJ: sources of intl law are classified as primary or secondary
Primary or direct sources- treaties, conventions, customs and general principles of
law
Secondary or indirect sources- court decisions and writings of publicists
Treaties
Some are particular international law which is is limited in operation
because it applies only to certain states with participation on the treaty
- Bilateral treaties
General rule: to be considered a direct source of international law, a treaty
must be concluded by a sizable number of states and thus reflect the will or
at least the consensus of the family of nations.
Even if only agreed upon by a few member, a treaty may become binding to
the whole world if it is intended to lay down rules for observance by all
- Law-making treaties (Congress of Vienna 1815, Peace of Westphalia
1648, Declaration of Paris 1856, Geneva Red Cross Convention 1864,
UN Charter 1945)
Custom
A practice which has grown up between states and has come to be accepted
as binding by mere fact of persistent usage over a long period of time
- Ex: the practice of granting immunities to foreign heads of states or
diplomats in the territory of the local state pursuant to principle of
extraterritoriality
A defect of customary law is the difficulty of determining when a practice can
be considered to have hardened into custom and thus acquired obligatory
character

Another defect is the inability to adjust swiftly to the moving developments

of the international society which it is supposed to regulate
Distinguished from usage in that the latter while considered a long
established way of doing things is not coupled with conviction that it is
obligatory and right (maritime ceremonials in the open sea)

General Principles of Law

Mostly derived from the law of nature and observed by most states due to
belief that it is good and just
No international convention necessary to bring them into existence
Universal in application because of the unilateral decision of a considerable
number of states to adopt and observe them in recognition of their intrinsic
merit (ex Roman law)
Prescription, pacta sunt servanda ("agreements must be kept), estoppels,
consent and res judicata
Identified based on reason and conscience
Secondary Sources
Art 38 ICJ does not distinguish between those rendered by intl tribunals like
ICJ and arbitration bodies and those promulgated only by the national courts
as long as they are a correct application and interpretation of the law of
nations
The decisions of the courts of other country will be received not with
authority but with respect
Court decisions of every country are reflective of how provisions of the law of
nations are understood
STARE DECISIS: not applicable so the decision of a court in 1 case will have
only the persuasive value in the decision of a subsequent one
Writings of publicists: to qualify must be fair and unbiased representation of
international law and by an acknowledged authority in the field
International l Community

The body of juridical entities which are governed by the law of nations
SUBJECTS of INTERNATIONAL LAW: Composed of states and other intl
persons like UN, Vatican City, colonies and dependencies, mandates and
trust territories, Intl administrative bodies, belligerent communities and
individuals
Subject: an entity that has rights and responsibilities under the law; has an
intl personality that can assert rights and be held directly responsible under
the law of nations; faculty of motivation (it can be a proper party in
transactions involving the application of the law of nations among members
of the international community)

Object: person or thing in respect of which rights are held and obligations
assumed by the subject; not directly governed by the rules of international
law; its rights received and its responsibilities imposed directly, thru the
instrumentality of an intermediate agency

Development of International Community

Peace of Westphalia of 1648 signaled the start of modern intl community
Charter members: England, Spain, Portugal, the German Confederation,
Poland and Italian cities, Holland and Switzerland, Russia, American
Republic.
Treaty of Paris of 1856: Ottoman Empire was admitted as the 1 st nonChristian member PF THE CONCERT OF Europe and soon joined by
Persia, Japan, China and Siam
After WWI, the Baltic States were also accepted..then came India, Egypt
and other Arabian Stares
After WWII, RP then other Asian States
States
A group of people living together in a defined territory under an independent
government organized for political ends and capable of entering into
international relations
As an intl person, may have full or qualified status depending upon the
degree of its control over its external affairs
Legal concept; while nation is only a racial or ethnic concept
Nation: indicates a relation of birth or origin and implies a common race,
usually characterized community of language and customs; may comprise
several states
It is possible for a state to be made of more than 1 nation
A nation need not be a state
Requisites for a state/nation to e regarded as an international person:
1. Permanent population
2. Defined territory
3. Government
4. Sovereignty or independence
5. Recognition by other states
6. Possession of a sufficient degree of civilization
A. People
Refers to human beings living within its territory
Of both sexes and sufficient number to maintain and perpetuate
themselves
Individuals of different races, languages and religions very often actually
form one people of one state
B. Territory
Fixed portion of the surface of the earth in which the people of the state
reside

Nomads and moving states do not posses this element

A defined territory is important for jurisdictional reasons and in order to
provide for the needs of the inhabitants
Practically should be big enough to be self-sufficient and small enough to
be easily administered and defended
C. Government
Agency thru which the will of the State is formulated , expressed and
realized
Important because a state must have an entity to represent it in its
relations with other states
Form of government does not matter as long as it is able to maintain
order within the realm and comply with its responsibilities under the law
of nations
Group of anarchists or society of pirates cannot quality as a State
D. Sovereignty
Independence: external aspect or manifestation of sovereignty, the power
of the state to direct its own external affairs without interference or
dictation from other states.
The degree of its freedom determines the status of the state as an
international person
Excessive assertion of freedom may defeat the effective operation of the
law of nations
Sovereignty is the quicksand on which the foundations of international
law are built
Capacity of States
The possession of the elements above does not necessarily entitle a state to
membership admission because:
1. The recognition of states is generally considered a political act which may
not be compelled
2. The restricted capacity of the state to discharge international obligations,
owing either to treat commitments or to its limited resources
Switzerland not admitted because of its permanent neutralization ,
preventing it from participating in enforcement or preventive action
Liechstentein, Andorra, Monaco and San Marino application denied due to its
limited size, small population, lack of an army, geographical position and
deputation to other states
UN however wanted as many members to be involved accepted those who
were not admitted in the League of Nations like Angola and Gabon
Classification of States
Dependent : having full international personality; suzerainty ( occurs where
a region or people is a tributary to a more powerful entity which controls its foreign affairs while
allowing the tributary vassal state some limited domestic autonomy.) and protectorate no full
control of their external relations

Independent: simple or composite, either of which may be neutralized; not

subject to dictation from others
1. Simple states: one which is placed under a single and centralized
government exercising power over both its internal and external affairs
(Philippines and Holland)
2. Composite states: consists of 2 or more states, each with its own
separate government but bound under a central authority exercising , to a
greater or less degree , control over its external relations
- Real union and federal union: full international personality as
distinguished from a confederation (imperfect intl person)
a. Real Union- created when 2 or more states are merged under a
unified authority so that thy from a single intl person thru which
they act as 1 entity
-they retain their separate identities
-Norway and Sweden 1815 to 1905
-Austria and Hungary 1867 to 1918
-Egypt and Syria
b. Federal Union- or federation is a combination of 2 or more
sovereign states which upon merger cease to be states, resulting in the creation of
a new state with full international personality to represent them in their external
relations as well as certain degree of power over their domestic affairs and
inhabitants
- US
-some federations do not exercise full direction of external affairs
(German Empire)
c. Confederation- organization of states which retain internal
sovereignty and some degrees of external sovereignty, while delegating to the
collective body power to represent them as a whole for certain and specified
purposes (imperfect person) like German sates in 1866
d. Personal Union- when 2 or more independent states are brought
together under the rule of the same monarch, who nevertheless does not become
one intl person for the purpose of representing any or all of them; Belgium and
Congo; each member remains a state and an intl person, although its external
policies are directed by the same ruler who dictates the foreign affairs of the other
components of the union; not a composite state because no new intl person is
created to represent it in the international relations
e. Incorporate Union union of 2 or more states under a central
authority empowered to direct internal and external affairs and possessed of a
separate international personality. It is different from real union in that real union
involves control only of external affairs (UK , Northern Ireland)
Neutralized States
A state may be neutralized thru agreement with other states by virtue of
which the latter will guarantee its integrity and independence provided it

refrains from taking any act that will involve it in war or other hostile activity
except for defensive purposes.
For a neutralized state: it is desirable for it will remove itself from the
vicissitude of international politics and all their attendant expense and
anxiety
For guaranteeing states: humanitarian or political reason is compassion for
the weak and small state, balance of power considerations, the necessity for
a buffer state to relieve international friction et al
Switzerland, Belgium, Laos

Dependent States
Naturally the idea of a state implies independence or of possessing the
indispensable attribute of sovereignty
These are states subject to the control of other states in the direction of their
external affairs; semi-sovereign states
1. Protectorate- enjoys a degree of independence , a voluntary act of
subordination to the protecting state by contrast with the concession of
autonomy made by the suzerain sate to the vassal state
2. SuzeraintyUnited Nations
An organization of states , regarded as a intl person for certain purposes.
It enjoys certain privileges and immunities like non-suability, inviolability of
its premises and archives and exemption from taxation
Right of legation: it can send and receive diplomatic agents who possess the
same rights accorded regular envoys.
According to ICJ: the UN can assert a diplomatic claim on behalf of its officials
- Also treaties may also be concluded by it thru the General Assembly,
the Security Council, and the Economic and Social Council
- Trust territories (A colony or territory placed under the administration
of one or more countries by commission of the United Nation) are
supposed to be under the residual sovereignty of the UN
- It can even wage war thru the exercise of its power to undertake
enforcement action on case of threat to or breach of intl peace
Vatican City
Italy and Vatican concluded Lateran Treaty for the purpose of assuring to the
Holy See absolute and visible independence and of guaranteeing to it
absolute and indisputable sovereignty in the field of international relations.
Kelsey: in the Lateran treaty, Italy recognizes the full ownership, exclusive
dominion and sovereign authority and jurisdiction of the Holy See over the
Vatican ie a certain territory within Rome. That means that Italy gave up a
part of its territory for the purpose of a new state being established on it. This
territory does not exceed 100 hectares, nevertheless it is the territory of a

state. Its population does not reach seven hundred and is composed almost
exclusively of individuals residing therein by virtue of their office.
Nevertheless, it is the population of a state. Since the Pope is the
government, all the elements of a state in the sense of international law are
present.
Colonies and Dependencies
Part and parcel of a parent state thru which all its external relations are
transacted with other states
No legal standing in the family of nations
Have been allowed to participate on their own right in international
undertakings granted practically the status of a sovereign state; in this
capacity they are acting as international persons
Why did the colonies decline in number? Due to nationalism and selfdetermination
Mandates and Trust Territories
System of mandates established after WW1 to avoid outright annexation of
the underdeveloped territories taken from the defeated powers and to place
their administration under some from of international supervision
3 kinds of trust territories:
1. Those held under the mandate under the League of Nations
2. Those territories detached from the defeated states after WWII
3. Those voluntarily placed under the system by the states responsible for
their administration
Trusteeship in strategic areas: Security Council as administering authority
Trusteeship in non-strategic areas: General Assembly as administering
authority
With a degree of international personality but not sovereign
Belligerent Communities
when a portion of the population rises up in arms against a legitimate
government of the state, the upheaval is ordinarily regarded as a merely
internal affair
State is held internationally responsible for all the injuries caused upon third
states by reason of the disorder and members of the uprising accountable for
their acts under the laws of the legitimate government
Belligerency- when a conflict widens and is aggravated by rebels
Subject to laws of war neutrality
inchoative state vested with full rights of visitation, search and seizure of
contraband articles on the high seas, blockade and the like and is held
directly responsible for its unlawful acts
International Administrative Bodies

May be vested with international personality upon @ requisites:

1. Their purposes are mainly political
2. They are autonomous ( not subject to the control of any state)
International Labor Organization, Food and Agricultural Organization, World
Health Organization and International Monetary Fund: may enter into
agreements with UN thru Economic and Social Council, subject to approval of
General Assembly
European Commission of Danube and the Central Commission for Navigation
of Rhine: both exercise legislative, administrative and judicial powers directly
applicable to individuals

Individuals
The state of the individual and not the individual himself can be a proper
party in the assertion of a claim for damages
Individuals can be an object of international law thru his own state in matters
involving other states
The individual is the basic unit of his society, national and international and
must therefore be governed by the laws of this society including those
binding on states as agent of the individual
1. UN charter reaffirms in fundamental human rights, in the dignity and
worth of the human person and in the equal rights of men women
2. The Universal Declaration of Human Rights, in recognition of the inherent
dignity and of the equal and inalienable right of all members of the human
familyproclaims the basic individual rights which are nations are called
upon to foster
3.

UNITED NATIONS
Symbol of mans undismayed determination to establish for all nations a rule
of law that would forever banish the terrible arbitrament of war in the
solution of international disputes
Envisioned as the answer to the universal yearning for peace and friendship
among people regardless of color or creed
Started after WW1 when League of Nations was founded but was weak add to
fact that US was not a member thereof..shattered in 1939

1946: LON was dissolved

Moscow Declaration: 1st formal step toward the creation of UN , signed by
China, Soviet Union, UK and US on Oct 30, 1943
These states recognized the necessity of establishing at the earliest
practicable date a general international organization based on the principle:
sovereign equality of all peace-loving states and open to membership by all
such states for the maintenance of international peace and security
Same year was Teheran Conference where Rooosevelt, Churchill and Stalin
acknowledge the supreme responsibility resting upon them and all the UN to
make a peace which will command the goodwill of the overwhelming mass of
people of the world and banish the scourge and terror of war for many
generations
Dumbarton Oaks Proposal: initial blueprint, prepared at a conference in
Washington buy UK, USSR and US, China representatives
Security Council was conceived as the key body of the UN with conferees and
France as permanent members
Charter of UN: 50 delegates of nations met and prepared and unanimously
approved; charter came to force on Oct 24, 1945 with the filing of the
instruments of ratification by the members of the Big five and a majority of
the other signatories
Resulted to creation of not only juridical but international personality
UN is not a state or a super state but was granted such powers as sending
and receiving diplomatic agents, conclude treaties and govern territories

UN Charter
Lengthy consisting of 111 articles besides the preamble and the concluding
provisions also includes the Statute of the International Court of Justice
annexed to and made an integral part of it
Charter may be considered a treaty because it derives its binding force from
the agreement of the parties to it
It may also be regarded as a constitution as it provides for the organization
and operations of the different organs of the UN and for the adoption of any
change in its provisions through a formal process of amendment
Charter intended to apply not only to members of the organization but also to
non-member states for the maintenance of peace and security
Art 103: in the event of conflict between the obligations of the members of
the UN under the present charter and their obligations under any
international agreement , their obligations under the present charter shall
prevail
Amendment is done by 2/3 of the members of the General Assembly and
ratified in accordance with their respective constitutional processes by 2/3 of
the members of the UN, including all the members of the Security Council

A general conference may be called by majority vote of the General

Assembly and any 9 members of the Security Council for the purpose of
reviewing the charter
Amendments may be proposed by 2/3 vote of the conference and shall take
effect when ratified by 2/3 of the members of UN, including the permanent
members of the Security Council

Preamble
Introduces the Charter and sets the common intentions that moved the
original members to unite their will and efforts to achieve their common
purposes
Purposes
Constitute the raison detre of the UN and are the aggregation of the
common ends
Principles
Art 2 deals with the methods and the regulating norms according to which
the UN and its members shall discharge their obligations and endeavor to
achieve their common ends
- Rule 1 is based on one of the fundamental rights of states: right to
equality. All members of the organization regardless of size or influence
have the same vote in the General Assembly . Certain special rights
over and above those other members are reserved to the Big
Five(United States, Britain, France, Russia and China); smaller states are not
subjected to the same financial responsibilities as the affluent members
- Rule 2 is based on pacta sunt servanda which calls for the observance
of treaties in good faith. The charter partakes of the nature of a treaty
and as such, its success depends on the willingness of the memberstates to comply with the obligations they have assumed under the
Charter
- Rule 3 itself is a generally accepted principle of international law. More
common amicable settlement of disputes are active participation in the
ICJ and Security Council and sometimes even if the General Assembly
- Rule 4 is the MOST IMPT UN principle. This rule prohibits threat or force
upon the territorial integrity or political independence of any member
of the UN
- In Rule 5, the efficacy of the UN will depend on the cooperation
extended to it by the member states . Otherwise, resolutions will be
like paper decisions and lip service . to ensure their full implementation
active involvement is necessary
- Rule 6. Even if treaties are binding only between signatory states, nonmember states are also covered by the obligations imposed by the
Charter for the maintenance of peace and security

Rule 7 is known as Domestic Jurisdiction Clause : as long as the

matter remains internal, it cannot be the subject of intervention by the
UN. Rebellion cannot come under the jurisdiction of the UN except
where the internal conflict aggravates into a threat to or an actual
breach of intl peace and security or where the parties voluntarily
invoke and submit to the jurisdiction of the UN for the settlement of
their dispute.

Membership
There are 2 kinds of member: original and elective depending on the
manner of their admission and does not involve any difference in the
enjoyment of rights or the discharge of obligations.
Original or charter members: those states who signed and ratified the
Charter of the UN by participation in UN Conference on International
Organization at San Francisco or at the Declaration of the UN; 51 original
members
Elective members: admitted by the decision of the General Assembly upon
favorable recommendation of the Security Council; qualifications:
1. It must be a stateeven mini states like Bahrain, Bhutan, Qatar and
Oman
2. It must be peace-loving--- subjective standard that can lead to political
rather than legal decisions
3. It must accept the obligations of the Charter ---although requiring formal
declaration form applicant, it is subject to the 4 th and 5th reqts as
determined by the organization itself
4. It must be able to carry out these obligations--5. It must be willing to carry out these obligations
Can the General Assembly admit an applicant for membership without a
favorable recommendation of the Security Council?
-Admission requires
a. recommendation from the Security Council
b. decision of the General Assembly
Suspension of Members
Suspension in terms of the exercise of rights and privileges only
Effected by 2/3 of those present and voting in the General Assembly upon
the favorable recommendation of at least 9 members of the Security Council,
qualified by a majority vote
Effects of suspension:
- Prevention from participating in the meetings of the General Assembly
- Prevention form being elected
- Prevention form continuing to serve in the Security Council or
Trusteeship Council
- Nationals of the suspended may however continue to serve in the
secretariat and ICJ as they are regarded as international officials or
civil servants acting for the organization

Members are still subject to discharge its obligations under the Charter
like payment of its financial contribution to the Organization

Expulsion of Members
For persistent violation of the principles contained in the Charter
Expulsion done by 2/3 of those present and voting in the General Assembly
upon the recommendation of the Security Council by a qualified majority
vote
Aim: to provide for a stronger penalty than suspension against a member
who wouldve demonstrated not satisfying the basic reqts of membership
Withdrawal of Members
No provision for withdrawal in the Charter so as not to encourage successive
withdrawals and hence weaken the organization
Reasons for withdrawal:
1. The organization was revealed to be unable to maintain peace or could do
so only at the expense of law and justice
2. The members rights and obligations as such were changed by a Charter
amendment in which it had not concurred or which it finds itself unable to
accept
3. An amendment duly accepted by the necessary majority wither in the
General Assembly or in a general conference is not ratified
Organs of the UN
6 Principal organs:
1. General Assembly
2. Security Council
3. Economic and Social Council
4. Trusteeship Council
5. ICJ
6. Secretariat
Subsidiary organs:
1. Military Staff Committee
2. International Law Commission
3. Commission on Human Rights
The General Assembly
The most representative of the organs of the UN
Consists of all the members of the organization, each entitled to send not
more than 5 reps and 5 alternates as well as technical staff it may need
G.A. meet in regular annual session on 3rd Tuesday of September or in a
special session at the call of the majority of it member or request of the
Security Council
Each member has 1 vote ; decisions are taken up by 2/3 present and voting

Functions of the General Assembly:

1. Deliberative
2. Supervisory
3. Financial
4. Elective
5. Constituent

The Security Council

The key organ of the UN in the maintenance of peace and security
Consists of 5 permanent (Big Five) and 10 elective members (elected by 2-yr
terms by the GA: 5 African-Asian, 2 Western European and 1 Easter European)
Non-permanent states are not eligible for immediate election
Permanent members are given preferred position because of the feeling that
they would be called upon to provide the leadership and physical force that
might be needed to preserve world peace
SC is supposed to be organized and all its members need to be represented
at all timesready in case any crisis should arise
Chairmanship is rotated every month on basis of the English alphabetical
order
Voting is governed by Yalta formula devised at the Crimea Conference and
incorporated in Art 27 of the Charter
- Each member shall have 1 vote
- Distinction made between Big Five and the non-permanent members in the
resolution of substantive questions
- Procedural matters to be decided by the affirmative vote of any 9 or more
members
- Decision on non-procedural questions requires concurrence of at least 9 but
including all members
- No member is allowed to vote on questions concerning the pacific
settlement of a dispute to which it is a party
Procedural matters:
1. Questions relating to the organization and meetings of the SC
2. Establishment of subsidiary organs
3. Participation of state parties to a dispute in the discussions of the organ
Non- Procedural matters
Those that may require the SC under its responsibility of maintaining
or restoring world peace to invoke measure s of enforcement
- characterization of a question
Above rules enable a permanent member to cast a veto and thereby
prevent agreement on a non-procedural question even if supported by other
members of the SC
May also double veto by means of which it can disapprove any proposal to
consider a question merely procedural and thereafter vote against the
question itself on the merits

Absence in voting non-procedural matter is not considered a veto; proposal

deemed adopted if approved by at least 9 members of the SC including the
rest of the permanent members
Purpose of Yalta formula: to ensure the unity of the permanent members in
the measure s to be taken in the pursuit of its primary function of maintaining
international peace and security
Limitation: dispute must be international, not an internal dissension (civil war)
, unless the parties submit the matter to the UN
Principle: UN SC shall not intervene in any matter within the domestic
jurisdiction of any state
Voting and Constituent Functions of the SC:
1. Admission and discipline of the members of the UN
2. Election of the judges of ICJ and the Secretary General
3. Amendment of the Charter

The Economic and Social Council

Before was only 18 members but now already 27, by the amendments to the
Charter in 1965
Became 54 members in 1971
All members are elected by the General Assembly for 3-yr terms and may be
re-elected immediately
The ESC shall meet in regular session as required and at special sessions at
the request of the majority
Each member has 1 vote and decisions are reached by a majority of those
present and voting
Members of the UN and reps of the specialized agencies may be allowed to
participate , without vote, in the deliberations of the council
General Assembly is vested with the responsibility for the promotion of the
international and social cooperation
In the performance of its duty, ESC is assisted by certain subsidiary organs
like the Commission of the Status of Women and the regional economic
commissions for Europe, Asia, Far East and Latin America
The Trusteeship Council
The organ charged with the duty of assisting the SC and the GA in the
administration of the International Trusteeship system
Composed of :
1. The members of the UN administering trust territories
2. The permanent members of the SC not administering the trust territories
3. Other members elected for 3-year terms by the GA as may be necessary
to ensure the total number of members of the Trusteeship Council is
equally divided between those members of the UN which administer trust
territories and those which do not

TC shall meet in regular sessions as required and at special sessions at the

request of the majority
Each member has 1 vote and decisions are reached by a majority of those
present and voting
Functions of TC:
1. Consider reports submitted by the administering authorities
2. Accept petitions and examine them in consultation
3. Provide periodic visits to the trust territories
4. Take such other actions in conformity with the terms of the questionnaire
on the political, economic, social and educational advancement of
inhabitants of the trust territories
TC has become largely obsolete because of the conversion of many trust
territories into mini-states

International Court of Justice

Judicial organ of the UN which functions in accordance with the Statute
All members are ipso facto parties to the Statute
A non-member may become a party on conditions to be determined in each
case by the GA upon recommendation of the SC
15 members elected by absolute majority in the GA and the SC
Judges must be of high moral character and posses qualifications required in
their respective countries for appointment to their highest judicial offices or
are jurisconsults of recognized competence in international law
No 2 of them may be nationals of the same state, if there are >1, the one
eldest will be considered elected

The election of judges should assure the representation in the court of the
main form s of civilization and the principal legal systems of the world
Members have a term of 9 years and may be re-elected
No 1 judge can be removed unless he has ceased to fulfill the required
conditions by unanimous opinion of the other members
President and VP shall be elected for a term of 3 years and may be re-elected
It shall remain permanently in session at Hague or elsewhere, except during
judicial vacations and may meet either en banc in issues such as labor,
transit and communications
All questions are decided by a majority of the judges present, the quorum
being nine when the full court is sitting
Functions of the Court:
1. To decide contentious cases
2. To render advisory opinions
Only States (including non-members of UN) may be parties in cases
Jurisdiction of the Court: based on the consent of the parties as manifested in
the optional jurisdiction clause in Art 36 of the Statute
Comprises of all cases referred to and all matters provided in the Charter,
treaties or conventions in force

Advisory opinions may be given by the court upon request of the GA or SC as

well as other organs of the UN, when authorized by the GA, on legal
questions arising within the scope of their activities

The Secretariat
The chief administrative organ of the UN headed by the Secretary-General
The SecGen is chosen by the GA upon recommendation of the SC
SecGen term is fixed at 5 years by resolution of the GA and may be re-elected
SecGen is the highest representative of the UN and is authorized to act in its
behalf
When acting on behalf of the UN, he is entitled to full diplomatic immunities
and privileges which only the SC may waive
The immunities and privileges of other key officials may be waived by the
SecGen
Significant is the SecGens duty to bring attention of the SC any matter which
in his opinion may threaten international peace and security; personally
mediated by him upon authorization of the SC
Sec gen also acts as secretary in all meetings of the GA< SC, ESC and TC and
perform such other functions as may be assigned to him by theses organs
He prepares the budget of the UN for submission to the GA, provides
technical facilities to the different organs and in general coordinates its vast
administrative machinery
SecGen and his staff members are international officers solely responsible to
the Organization and are prohibited from seeking or receiving instruction
from any government or any other authority external to the UN

THE CONCEPT OF THE STATE

State is the basic unit of the international community and is also the principal
subject of international law

Creation of the State

Elements of the State: people, government, territory and sovereigntywhen
complete is treated as an international person
Methods to acquire the State status are: revolution, unification, secession,
assertion of independence , agreement and attainment of civilization
US-revolution, Italy-unification (Principle of nationalities), Bangladeshsecession (withdrawal from Pakistan), Philippines- assertion, Netherlandscreation, Poland- agreement, Japan- attainment of civilization
Principle of State Continuity
As long as the State retains all its essential elements, it can withstand
changes in circumstances and still remain the same corporate person
Extinction of a State