PUBLIC INTERNATIONAL LAW REVIEWER
I. GENERAL PRINCIPLES
A. Customary International Law
1. Definition
- General and consistent practice of States
INTERNATIONAL LAW
Definition
- a body of rules and principles of action which are binding
upon civilized states in their relations to one another.
- laws which deal with the conduct of states and of
international organizations and with relations inter se, as well as
with some of their relations with persons, whether natural or
juridical.
2. Requisites
a. Generality
b. Consistency
c. Uniformity
THEORIES ON INTERNATIONAL LAW
1. Command Theory
- law consists of commands originating from a sovereign
and backed up by threats of sanction if disobeyed
- in this view, international law is deemed not a law
- this theory, however, has been generally discredited as the
nations see see international law as a command, rather as
principles for free and orderly interaction
4. Effect on Dissenting States
- General Rule
~Dissenting States are bound by the custom
- Exception
~ Unless they had consistently objected to it while it
was merely in the process of formation
~ Dissent only affects the dissenter and does not
apply to other States
~ New States joining the International Law System for
the first time after practice has become custom is
bound by such
2. Consensual Theory
- law derives its binding force from the consent of states
- treaties are an expression of consent
- customs, as voluntary adherence to common practice is
another expression of consent
3. Natural Law Theory
- law is derived by reason from the nature of man
- international law is said to be an application of natural
reason to the nature of the state-person
- much of customary law and what are regarded as
generally accepted principles of international law are in fact
an expression of what is traditionally called as natural law
PUBLIC
INTERNATIONAL
LAW
AND
PRIVATE
INTERNATIONAL LAW (CONFLICT OF LAWS)
1. Public International Law governs the relationship between
and among states and also their relations with international
organization and private individuals.
2. Private International Law, also known as Conflict of Laws, is
domestic law which deals with cases where foreign laws intrude
in the domestic sphere, tackling questions of the applicability of
foreign law or the role of foreign courts.
SOURCES OF NATURAL LAW
*Sources are classified into two: formal sources and material
sources
1. Formal Sources
- refer to various processes by which rules come into
existence
e.g. legislation, treaty-making and judicial decision-making
2. Material Sources
- deals with the substance and content of the obligation
e.g. state practice, UN Resolutions, treaties, judicial
decisions, and writing of jurists
*Primary Sources
1. Treaties
2. Customary International Law derived from the practice of
states
3. General Principles of Law recognized by civilized nations
*Secondary Sources
4. Judicial Decisions
5.Writings of most highly qualified publicists
3. Material Factor and Subjective Factor
a. Material: generality, consistency, uniformity
b. Subjective: a sense of legal obligation (opinion juris)
5. Jus Cogens
- a peremptory norm accepted and recognized by the
international community of States, as a whole, as a norm from
which no derogation is permitted, and which can be modified
only by a subsequent norm of general international law having
the same character
- rooted from Natural Law and any laws conflicting with it are
null and void
- “A treaty is void, if at the time of its conclusion, it conflicts
with a peremptory norm of general international law accepted by
States as a whole from which no derogation is permitted and
which can be modified only by a subsequent norm having the
same status
e.g. prohibition on torture, genocide, slavery
6. Obligation Erga Omnes
- concerned with the enforceability of norms of international law.
the violation of which is deemed to be an offense not only
against the State directly affected or injured by the breach but
also against all members of the International Community
- an obligation by the State towards the International Community
to comply with its obligations under International Customary Law
B. Treaties
1. Definition
- Agreements which determine the rights and duties of
states just as individual rights are determined by contracts
- Its binding force comes from the voluntary decision of
sovereign states to obligate themselves to a mode of
behavior (consent)
2. Treaty v. Custom
- General Rules:
~ In the instance that a subsequent treaty conflicts
with a preceding custom, the treaty shall prevail as the
latter manifests the express choice of the parties and
the principle of pacta sundt servandta should be
followed.
- Exception:
~ If a later treaty is contrary to a customary law that
has the status of jus cogens, custom will prevail
C. General Principles of Law recognized by civilized nations
1. Definition
- in reference to principles of municipal law common to the legal
systems of the world
- they are supplementary rules of international law and includes,
judicial decisions and teachings of the most highly qualified
publicists.
D. Judicial Decisions
1. Article 38 of the Statute
- Directs the Court to apply judicial decisions as subsidiary
means for the determination of the rules of law
2. Article 59 of the Statute
- Judicial Decisions have no binding force except between
the parties in respect of that particular case
- Stare Decisis and Res Judicata not applicable
E. Writings of Publicists
1. Publicists
- Institutions which write on international law
- Generally government sponsored, and so bear with
themselves a potential for national bias
F. EQUITY
1. Ex aequo et bono
- what is just and fair according to equity and good conscience
- a principle which may be used by the international courts in
deciding cases
II. THE LAW OF TREATIES
*Treaties can assume various names, i.e. conventions, pacts,
covenants, charters, protocols, concordat, modus viviendi, note
verbale,, etc.
* The law on treaties is found on the 1969 Vienna Convention
on the Law of Treaties
TREATIES
A. Definiton
- an international agreement concluded between states
- in written form
- and governed by international law
- whether embodied in a single instrument or in two or more
related instruments
- whatever its particular designation
B. Oral Agreements (Oral Treaties)
- Binding upon its contracting states, however, only written
agreements that are new, come under the application of the
provisions of the Vienna Convention
C. Functions of Treaties
1. Sources of international law
2. Serves as charters for international organizations
3. Used to transfer territory
4. Regulates commercial relations
5. Settles disputes
6. Protects human rights
7. Guarantees investments
D. Kinds of Treaties
1. Multilateral Treaties
- Open to all states of the world
- They create norms which serve as basis for a general rule
of law
- Either codification treaties or law-making treaties
2. Bilateral Treaties
- In the nature of contractual agreements which create
shared expectations such as trade agreements of various
forms
- Sometimes called contractual treaties
E. Binding Force
- General Rule:
~ Binding only to the parties
- Exception:
~ The number of contracting parties and the generality
of the acceptance of specific rules can have the effect
of creating a universal law
F. Treaty-Making Process
1. Negotiation
- Agents/Negotiators are conferred full powers to negotiate
in foreign ministries or in diplomatic conferences
- Said agents/negotiators are considered as aleternat of the
state
~ Full Powers (Pleine Pouvoirs)
- A person is considered as representing a state in
negotiations if:
a) he produces appropriate full powers
b) it appears from practice of the state or from other
circumstances that their intention is to treat him as such
~ In virtue of their functions and without having to produce full
powers, the following are considered as representing the state:
- Heads of State, Heads of Government and Ministers of
Foreign Affairs, for purposes of performing all acts relating
to the conclusion of a treaty
- Heads of diplomatic missions, for purposes of adopting
the text of a treaty between the accrediting state and the
state to which they are accredited
- Representatives accredited by States to an international
conference to an international organization or on of its
organs, for purposes of adopting the text of treaty in that
conference, organization or organ
2. Open Signature/Authentication of Text
- Negotiations conclude with the signing of the document
- Their signature signifies good faith and authenticity of the
negotiation and the formulated stipulations of the document
3. Ratification
- Formal act by the state acknowledging its consent to the
treaty
- In the Philippines, the treaty is ratified by the President and
concurred by at least 2/3 of the members of the Senate (Article
VII, Section 21 of the 1987 Constitution)
4. Exchange of Instrument of Ratification
- This act signifies the effectivity of the treaty
5. Depositing the Instrument before the United Nations
- This act in effect binds third parties to the treaty
6. Entry into force of a Treaty
- enter into force on the date agreed upon by the parties or,
in the absence of which, once consent has been given
G. Accession to a treaty
- States which did not participate in the initial negotiation
may also express their consent to be bound by means of
accession.
- Passive and Active
H. Reservations
- Reservations are meant only for multilateral treaties, as a
reservation in bilateral treaties mean a rejection of the treaty
and necessitates re-negotiation.
1. Rules
- General Rule:
~ States have the power to make reservations, in
deference to the sovereignty of States
- Exceptions:
a) Reservation is prohibited by the treaty
b) The treaty provides only for specific reservations
c) The reservation is incompatible with the object and
purpose of the treaty
2. Acceptance and Objection to Reservations
1) A reservation expressly authorized by a treaty does not
require subsequent acceptance by the other contracting
States unless the treaty so provides.
2) When it appears from the limited number of the
negotiating States and the object and purpose of a treaty
that the application of the treaty in its entirety between all
the parties is an essential condition of the consent of each
one to be bound by the treaty, a reservation requires
acceptance by all the parties.
3) When a treaty is a constituent instrument of an
international organization and unless it otherwise provides, a
reservation requires the acceptance of the organ of that
organization.
I. Application of treaties
1. Pacta Sundt Servanta
- principle laid down under Article 26 of the Vienna Convention,
every treaty (obligations) in force is binding upon the parties to it
and must be performed by them in good faith.
2. Against Internal Law
- embodied under Article 46, a party may not invoke the
provision of its internal law as justification for its failure to
perform a treaty.
J. Invalidity of Treaties
- The usual grounds for the invalidation of treaties are fraud,
error of fact, corruption or duress, violation of jus cogens
1. Fraud
- may be invoked if a State is induced to conclude a treaty by
the fraudulent acts of another negotiating State
2. Error
- may be invoked only under the following circumstances:
a. that the error relates to a fact or situation which was
assumed by that State to exist at the time of the treaty’s
conclusion
b. that it formed an essential basis for the State to give its
consent to the treaty
3. Corruption
- If the expression of a State’s consent had been procured
through the corruption of its representative directly or indirectly
by another negotiating State
4. Coercion/Duress
- Two Kinds:
a. Coercion against a representative of a State
- when acts or threats were directed against a
representative of a State by another negotiating State
b. Coercion against a State
- when consent has been procured by the use of
threat or force in violation of the principles of the
international law
- There are instances where a State may lose its right to assert
the invalidity of a treat, i.e. if after being aware of the facts:
1. The State expressly agreed that a treaty is valid or remained
in force or continues in operation
2. The State, by reason of its conduct, is considered to have
acquiesced in the validity of the treaty
K. Amendment and Modification of Treaties
1. Amendment
- refers to a formal revision done with the participation, at least
in its initial stage, by all the parties to the treaty
A. Procedures
1) A proposal to amend must be notified to all contracting States
and each shall have the right to take part in:
a. the decision to the action to be taken in regard to
such proposal
b. the negotiation and conclusion of any agreement for
the amendment of the treaty
2) Every State entitled to become a member of the Treaty is
also entitled to be a member of its amendment
3) The amending agreement does not bind any State already a
party to the treaty which does not become a party to the
amending agreement
4) A State which only becomes a party after the amendment
shall be considered
a. a party only to the amended treaty
b. considered as a party to the unamended treaty in
respect only to any party to the treaty not bound by the
amending agreement
2. Modification
- involves only some of the parties
A. Procedures
1)
L. Termination of Treaties
- Causes for termination of treaties
a. according to the stipulation of treaty
b. consent by the parties
c. definite period as stipulated
d. purpose already achieved
1. Material Breach
a. Material Breach in a Bilateral Treaty
- entitled the other to invoke the breach as ground for the
termination of the treaty
b. Material Breach in a Multilateral Treaty
i. Other parties by unanimous agreement
- may invoke the breach to suspend the operation of
the treaty, in part or whole, or to terminate it either:
a) in the relations between themselves and the
defaulting State
b) as between all the parties
ii. a Party specifically affected
- invoke it as aground for the suspension or
termination of the treaty as between itself and defaulting State
iii. any party other than the defaulting State
- invoke the breach as a ground for suspension or
termination with respect to itself
- PROVIDED the breach is of such character
radically changes the position of every party
with respect to the further performance of its
obligation to the treaty
2. Supervening Impossibility of performance
3. Rebus Sic Stantibus
A. Definition
- Constitutes an attempt to formulate a legal principle which
would justify non-performance of a treaty obligation if the
conditions with relation to which the parties contracted have
changed so materially unexpected as to create a situation in
which the exaction of performance would be unreasonable.
B. Elements
a. that the change be so fundamental and substantial
b. that the change must be unforeseen at the time of perfection
of the treaty
c. that the change must not have been caused by the party
invoking the doctrine
d. that the doc trine must be invoked within a reasonable time
e. that the duration must be definite
f. that it cannot operate retroactively
C. When Not Applicable
a. If the treaty establishes a boundary
b. If the fundamental change is the result of a breach by the
party invoking it either of an obligation under the treaty or any
other international obligation owed to any other party to the
treaty
III. INTERNATIONAL LAW AND MUNICIPAL LAW
1. Monism and Dualism
A. Monism
- international law and domestic law belong only to one
system of law
- 2 Theories
A. Municipal Law is superior to International Law
B. Kelsen – International Law is superior to Municipal
Law
B. Dualism
- international law and municipal law are essentially different
from each other
- Municipal Law is a product of local custom or of legislation
- Sources of International Law are treaties and custom
grown among states
2. International Law in Domestic Law
A. Doctrine of Incorporation
- Section 2, Article II
~ The Philippines adopts the generally accepted
principles of international law as part of the law of the
land and adheres to the policy of freedom, peace,
justice, equality, cooperation and amity with all nations
- There is no need to transform international law into a
domestic law as it is deemed to form part of the law of the
land
- This, however, applies only to International Customary Law
or Jus Cogens
B. Doctrine of Transformation
- For international law to form part of domestic law, it must
expressly and specifically be transformed into domestic law
through the constitutional machinery such as an act of
Congress of Parliament
2. Difference between International Law and Municipal Law
1. Municipal Law is imposed by one political authority,
whereby International Law is not imposed, rather adopted by
States
2. Municipal Law is derived from the enactment of the
Legislature through legislation, International Law on the other
hand, is derived from treaties, international custom (other
sources of international law)
3. Municipal Law regulate the relations of the citizens
with the State and its citizens outside the territory, while
International Law applies to the relations between and among
States, including International Organizations and other private
individuals
4. Violation of Municipal Law is resolved through local
administrative or judicial remedies, while violations of
International Law are resolved by State to State transactions
5. Res Judicata and Stare Decisis is applicable in the
application and interpretation of Municipal Law, while in
International Law, Res Judicata is binding only between the
parties to a specific case, while Stare Decisis completely does
not find application
3. Conflict between Municipal Law and International Law
A. In the Domestic Sphere
1. Domestic Courts are bound to apply local law
~ However, courts are generally able to give domestic
law a construction which does not conflict with
international law
2.In a conflict between the Constitution and a Treaty or other
International Law, the Constitution is upheld
~ This, however, is only applied in the domestic
sphere and the Treaty does not lose its character as
an International Law
3. As between a statute and a Treaty or any other
international law, the principle of lex posterior derogate priori
shall apply, i.e. a later law shall repeal an earlier law
B. In the International Sphere
1. International Law is superior
2. Before the international courts, it is an established
principle that a state may not plead its own law as an
excuse
IV. SUBJECTS OF INTERNATIONAL LAW
*Entities endowed with rights and obligations in the international
order and possessing the capacity to take certain kinds of action
on the international plane, i.e. those who have international
personality
STATES
A. Elements
1. People or Population
- A community of persons sufficient in number and capable
of maintaining the permanent existence of the community
and held together by a common bond of law.
2. Territory
- The fixed portion of the surface of the earth inhabited by
the people of the State and over which an entity exercises
permanent sovereignty
- Includes the terrestrial, aerial, fluvial and XXX portions of
the territory
3. Government
- is the agency or instrumentality through which the will of
the State is formulated, expressed and realized
4. Sovereignty
- is the supreme and uncontrollable power inherent in a
State by which the State is governed
- includes independence from outside control
- sovereignty resides in the people and all government
authority emanates from them (1987 Constitution)
~ Internal Sovereignty
- refers to the power of the state to direct its domestic
affairs, as when it establishes its government, enacts
laws for observance within its territory, or adopts
economic policies
~ External Sovereignty
- signifies the freedom of the state to control its own
foreign affairs as when it concludes treaties, makes
war or peace, and maintains diplomatic and
commercial relations
5. Recognition of States
V. INTERNATIONAL HUMAN RIGHTS LAW
A. Definition
- those inalienable–and fundamental rights essential for life as
human beings
B. Three Generations
(1) First Generation of Human Rights
- civil and political fundamental rights
- right of suffrage, right against violation of due process
(2) Second Generation of Human Rights
- social and economic rights
- right to work, right to health
(3) Third Generation of Human Rights
- solidary and collective rights
- right to peace, clean environment, self-determination, common
heritage of mankind, development, and minority rights
(4) Fourth Generation of Human Rights
- digital rights
- right to free internet, right to information, right to control
information on oneself
C. Covenant and Declaration
(1) Covenant
- a meeting of minds of the contracting parties on the specific
duties and obligations they intend to assume
- leaves no doubt about the legal nature of the provision it
contains
(2) Declaration
- admits the presumption that something less than full
effectiveness in terms of law is intended
- deemed to enunciate moral rules only
D. International Criminal Court
- jurisdiction is limited only to the most serious international
crimes against humanity, i.e. genocide, war crimes, crime of
aggression
VI. RIGHT OF LEGATION
(2) Foreign Offices
- handles the actual day-to-day affairs wherever they are placed
- through its head makes binding declarations on behalf of his
government
D. Missions
(1) States carry on diplomatic intercourse through permanent
missions established in the capitals of other States
(2) Composition
a. Heads of Mission
- ambassadors or nuncios
- envoys, ministers, and internuncios
- charge d’affaires, accredited to the Ministers of
Foreign Affairs
b. Diplomatic Staff
- those engaged in the diplomatic activities and
accorded diplomatic rank
c. Administrative and Technical Staff
d. Service Staff
- those engaged in the domestic service of the mission
(3) Functions and Duties (PNR-AP)
a. Protect the interests of the Sending State in the Receiving
State
b. Negotiate on behalf of the Sending State with the Receiving
State
c. Represent the Sending State in the everyday affairs in the
Receiving State
d. Ascertain by all lawful means conditions and developments in
the Receiving State
e. Promote friendly relations between the Sending State and the
Receiving State
D. Diplomatic Representatives
(1) Selection Process
- The President shall nominate, and with the concurrence of the
Commission of Appointments, appoint ambassadors (Sec. 16,
Art. VII of the 1987 Constitution)
- The State is not entirely free in the choice of its diplomatic
representatives, especially heads of missions, as the receiving
State has the right to refuse to receive an envoy who it
considers unacceptable, i.e. person non grata
(2) Agreation
- to avoid embarrassment, States resort to an informal inquiry,
i.e. enquiry
- the Sending state sends an enquiry to the receiving State
- the Receiving State then respondents with an agreement, i.e.
agreement
B. Foundation
- 1961 Vienna Convention on Diplomatic Relations
- 1961 Vienna Convention on Consular Affairs
(3) Formalities after Agreation
- with the informal process concluded, the diplomatic mission
then commences when the envou presents himself at the
Receiving State generally armed with the following documets:
a. Lettre de Creance
b. Diplomatic Passport
c. Instructions, which may include a letter of full
powers, i.e. pleine pouvoir)
d. Cipher, or code, or secret key, for communication
with the Sending Country
C. Agents of Diplomatic Intercourse
(1) Heads of State
- embodiment of, and represents the sovereignty of the State
- in the Philippines, the President is deemed to be the sole
architect of international affairs
E. Immunities and Privileges
(1) Personal inviolability
-the person of the diplomatic representative and people of the
mission is inviolable
- they cannot be held liable to any form of arrest or detention
A. Definition
- The right of diplomatic intercourse
- The right of the State to send and receive diplomatic mission,
which enables States to carry on friendly relations
(2) Inviolability of Premises and Archives
- the agents of the Receiving State may not enter the premises
without express consent of the envoys
- EXCEPTION: extreme cases of state necessity
- the premises, its furnishings and other properties thereon,
including the means of transportation of the mission shall be
immune from search, requisition, attachment, or execution
(3) The receiving State has the special duty of protecting the
diplomatic premises
(4) Right of Official Communication
- right to fully and freely communicate with his government
(5) Immunity from Local Jursidiction
- cannot be arrested, prosecuted, and punished for any offense
he may commit, unless his immunity is waived
- includes immunity from civil and administrative jurisdiction of
the Receiving State
(6) Exemption from taxed and custom dues
F. Duration of Immunities and Privileges
- the privileges are enjoyed from the moment the diplomatic
representative enters the territory of the Receiving State, and
shall cease only the moment he leaves the country
- these privileges are available even in transit, i.e. when
travelling through a third state on the way to the Receiving State
G. Waiver of Immunities
- Immunities may be waived, but as a rule, by the Sending State
and not by the Diplomatic Representatives themselves
- Must be express
- Implied Waiver
~ when the proceedings are initiates by the Diplomatic
Representative, he opens himself up to suit
- Waiver of Immunity in respect of execution of judgment
~ a separate waiver shall be necessary as regards the
execution of the judgment against the Diplomatic
Representative
H. Termination of Mission
(1) Death
(2) Resignation
(3) Removal or abolition of office
(4) Recall by the Sending State
(5) Dismissal by the Receiving State
(6) War between the Sending State and the Receiving State
(7) Extinction of a State
***CONSUL AND CONSULAR AFFAIRS***
VII. OUTER SPACE
A. 1967 Treaty on the Exploration and Use of Outer Space
(1) The assertion under air space law used to be that air
sovereignty extended to am unlimited extent, usque ad coelom
(2) Outer space, including the moon and other celestial bodies,
is not subject to national appropriation by claim of sovereignty,
by means of use or occupation, or by any other means.
(3) Outer space, or the region beyond the earth’s atmosphere, is
not subject of the jurisdiction of any state and national
exploration
(4) Outer space shall be free for exploration and use by all
states without discrimination of any kind
(5) The space beyond the airspace surrounding the earth or
beyond the national airspace, which is completely beyond the
sovereignty of the State.
(6) Celestial bodies shall be used exclusively for peaceful
purposes
(7) Nuclear weapons or any other kinds of weapons of mass
destruction shall not be placed in orbit around the earth
VIII. NATIONAL TERRITORY AND EXTRATERRITORIALITY
A. 1987 Constitution
- The national territory comprises of the Philippine archipelago
- with all the islands and waters embraced therein
- and all other territories over which the Philippine has
sovereignty or jurisdiction
- consisting of its terrestrial, fluvial, or aerial domains,
- including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas.
- The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimension, form
part of the internal waters of the Philippines (Art. I)
B. Archipelago Doctrine
- 2 Kinds
1. Coastal Archipelago
- situated close to a mainland and considered as part
of the mainland
2. Mid-ocean Archipelago
- groups of islands situated in the ocean at such
distance from the coast of firm (mainland)
e.g. the Philippines
~ it emphasizes the unity of lands and
waters by defining the archipelago either as a group of
island surrounded by waters or body of water studded
by islands
B. Principle of Extraterritoriality
- used to denote the status of persons or things physically
present on a State’s territory, but wholly or partly, withdrawn
from the State’s jurisdiction by a rule of international law
C. English and French Rule
(1) English Rule
- The coastal state shall have jurisdiction over all offenses
committed on board such vessels, except only where they do
not compromise the peace of the port
- Crimes perpetrated under such circumstances are in general
triable in the courts of the country within whose territory they
were committed
(2) French Rule
- Flag states shall have jurisdiction over all offenses committed
on board such vessels, except only where they compromise the
peace of the port
- Crimes committed aboard a foreign merchant vessel should
mot be prosecuted in the courts of the country within whose
territorial jurisdiction they were committed unless their
commission affects the peace and security of the territory
D. Article 2 of the Revised Penal Code
- Except as provided in the treaties and laws of preferential
application, the provisions of this Code shall be enforced not
only within the Philippine archipelago, including its atmosphere,
its interior waters and maritime zone, but also outside its
jurisdiction, against those who:
1. Should commit an offense while on a Philippine
ship or airship
2. Should forge or counterfeit any coin or currency
note of the Philippine Islands or obligations and
securities issued by the Government of the Philippine
Islands
3. Should be liable for acts connected with the
introduction into these islands of the obligations and
securities mentioned in the preceding paragraph
4. While being public officers or employees, should
commit an offense in the exercise of their functions; or
5. Should commit any of the crimes against national
security and the law of nations, defined in Title One of
Book Two of this Code
- The Philippines court has no jurisdiction on the crime of theft
committed on high seas on board a vessel not registered or
licensed in the Philippines
- In the Philippines, we observe the English Rule
- Crimes not involving breach of public order committed on
board a foreign merchant vessel in transit not triable in
Philippine courts
E. Exclusive Economic Zone
- The exclusive economic zone or the patrimonial sea extends
200 nautical miles from the coast or baselines
(1) Rights of the Coastal State
a. Right to explore, exploit, conserve, and manage the living and
non-living resources
b. Right to protect and preserve the marine environment
c. Right to marine scientific research
d. Right to establish and use artificial island
(2) Rights of Other States
a. Freedom of navigation and overflight
b. Freedom to lay submarine cables and pipelines
c. Freedom to engage in other internationally lawful uses
(3) Limits
- The State shall protect the nation’s marine wealth in its
archipelagic waters, territorial seas, and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino
citizens (Art. XII, Section 2 par. 2, 1987 Constitution)
IX. USE OF FORCE
A. General Rule
- All Members shall refrain from in their international relations
from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the Purpose of the United Nations.
B. Threat of Force
- The United Nations Charter does not only prohibit the use of
force, it as well prohibits the threat of force
- The most typical form is the ultimatum in which the State to
which it is addressed is given a time-limit within which to accept
the demands made upon it and is told that, if it rejects the
demands, war will be declared or certain coercive measures
C. Exceptions
(1) When such action is agreed upon in a treaty
(2) When requested from sister states from the United Nations
(3) Exercise of the inherent right of self-defense
- The use of force against the territorial integrity or political
independence of another State or in any other manner
inconsistent with the purpose of the United Nations is prohibited.
The entitlement to resort to self-defense is subject to the
conditions of necessity and proportionality.
- Under proportionality principle, the use of force to be lawful
must meet the requirements of the law applicable in armed
conflict which comprise in particular the principles and rules of
humanitarian law
(4) Enforcement action
(5) Humanitarian Intervention
- Prohibition on violations of Human Rights is now considered as
jus cogens. The prevailing opinion, however, is that intervention
without the authorization of the Security Council violates
international law
D. Nicaragua Case
- “The principles of international law, in particular the principle
that States should refrain in their international relations from the
threat or use of force against the territorial integrity or the
political independence of any State, and the principle
concerning the duty not to intervene in matters within the
domestic jurisdiction of a State, principles embodied in the
United Nations Charter.”
E. Traditional Allowable Coercive Measures
(1) Retorsion
- any form of counter-measure in response to an unfriendly act,
i.e. shutting of ports to vessels of an unfriendly state, revocation
of tariff concessions not guaranteed by a treaty, display of naval
forces near the waters of an unfriendly state
(2) Reprisal
- a forcible or coercive measure whereby a State seeks to
exercise a deterrent effect or obtain redress as a consequence
of the illegal act of another State
(3) Embargo
- consists of seizing vessels of the unfriendly state even in the
high seas
(4) Boycott
- suspension of trade or business relations with the unfriendly
State
(5) Non-intercourse
- suspension of all commercial intercourse with a State
(6) Pacific Blockade
- naval operation carried out in a time of peace whereby a State
prevents access to or exit from particular ports for the purpose
of compelling the latter to yield to the demand by the blockading
State
X. INTERNATIONAL DISPUTE SETTLEMENT
A. Basic Principles
- Well established in International Law that no State can, without
its consent, be compelled to submit disputes within other States
B. Dispute
- Exists when one state claims that another state should have
behaved in a certain manner and that claim is rejected by the
latter
- The following are deemed constitutive of legal dispute:
a. Interpretation of a treaty
b. Question of international law
c. Existence of law, if established would constitute a
breach of international law
d. Extent of reparation
(1) Legal Dispute
- involves justiciable rights based on law or fact susceptible of
adjudication by a judicial or arbitral tribunal
human rights, and fostering world cooperation to fight poverty,
and under-development
(2) Political Dispute
- cannot be decided by legal processes because the differences
of the parties spring from animosities in their mutual attitudes
rather than from antagonism of legal rights
D. Trusteeship Council
- Organ tasked to supervise the administration of TrustTerritories or former colonies or dependent territories placed
under the International Trusteeship System
E. International Court of Justice
- is the United Nation’s main judicial organ
- It settles legal disputes between States comprising of
Contentious Cases
- It also issues Advisory Opinions upon the request of a range of
United Nations organizations
C. Methods
(1) If a bilateral settlement fails, it is requires the submission of
the dispute for compulsory settlement
(2) Negotiation
- discussion undertaken by the State-parties themselves.
Wherein the government conduct their relations with one
another and discuss, adjust, and settle their differences
(3) Inquiry
- investigation of the points of question on the theory that their
education will contribute to the solution of the differences
(4) Good Offices
- method by which a third party attempts to bring the disputing
State-parties together in order to enable them to discuss the
issues in contention and arrive at an agreement
- done either by:
a. Third Stated
b. International organs
c. Individual or eminent citizens of Third States
(5) Mediation
- Third party does not merely provide the opportunity for the
State-parties to negotiate but also actively participates in their
discussions in order to reconcile their conflicting claims
(6) Conciliation
- Process of disputes by referring them to the commissions or
other international bodies
(7) Judicial Settlement
- The nature of the proceedings and the decision are binding in
character
- Settlement done by the Permanent International Court of
Justice
XI. ORGANS OF THE UNITED NATIONS
A. General Assembly
- The main deliberative, policy-making, and representative organ
of the United Nations comprised of all Member States
- It discusses any matter arising from under the United Nations
Charter
- General Assembly Resolutions are only recommendations to
the Member States, but as they represent the majority of the
world’s view, they carry heavy moral weight
B. Security Council
- Key organ of the United Nations whose primary responsibility
is the maintenance of the internal peace and security council
- The Security Council takes the lead in determining the
existence of a threat to the peace or act of aggression
C. Economic and Social Council (ECOSOC)
- The central body for coordinating the economic and social
work of the United Nations and the UN System
- The Council recommend and directs activities aimed at
promoting economic growth of developing countries, supporting
F. Secretariat
- Carries out the day-to-day work of the United Nations as
mandated by the General Assembly and the other principal
organs
- Its duty comprises of administering peacekeeping operations,
mediating international disputes, surveying social and economic
threats, to name a few
- It is also responsible for servicing the other organs of the
United Nations and administering the programmed and policies
laid down by them