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UNITED NATIONS

1. GENERAL ASSEMBLY

Composition: All members of the UN (as of 1996: 185 member States)


Function: The GA may discuss any question or matter within the scope of the Charter or relating to
the powers and functions of any other organ. It is also vested with jurisdiction over matters
concerning internal machinery ands operations of the UN.

2. SECURITY COUNCIL

Composition: 15 members:
a) 5 Permanent Members (China, France, UK, US, Russia)
b) 10 non-permanent: elected for 2 year terms by the General Assembly.

Function: the maintenance of international peace and


security.

Q: What is the "double veto"?


A: In all non-procedural matters, each permanent member is given a 'veto' - a Security Council
decision is ineffective if even one permanent member votes against it. The veto does not ordinarily
apply to Procedural matters. However, a permanent member may exercise a 'double veto' when it
vetoes any attempt to treat a question as procedural, and then proceed to veto any draft resolution
dealing with that question.

3. SECRETARIAT - CHIEF ADMINISTRATIVE ORGAN OF THE UN

4. ECONOMIC AND SOCIAL COUNCIL - organ charged with promoting social progress and better
standards of life in larger freedom

5. TRUSTEESHIP COUNCIL - organ charged with administration of Int'l Trusteeship System.

6. INTERNATIONAL COURT OF JUSTICE - judicial organ of the UN.

USE OF FORCE

Under Article 2(4) of the UN Charter, all member States are bound to refrain from the threat or use
of force against the territorial integrity or political independence of a State.

Recognized exceptions:
1) self-defense
2) military action taken or authorized by the UN or competent Regional organizations (such as
NATO).

A CALVO CLAUSE is a provision inserted in contracts, in which the foreigner agrees in advance not to
seek the diplomatic protection of his national State.

In general, International Courts have disregarded such clauses, as the right to diplomatic protection
is a right which belongs to a State, and waiver from an individual does not bind his State.
STATE IMMUNITY (JURE IMPERII and JURE GESTIONIS)

Originally, under customary international law the doctrine of absolute state immunity applied,
covering all areas of State activity and recognizing only very narrow exceptions.
Nowadays, the rule is to adopt a doctrine of qualified immunity -- that is, immunity is granted to
foreign States only in respect of their governmental acts (acts jure imperii), not in respect of their
commercial acts (acts jure gestionis).

DIPLOMATIC IMMUNITY

Diplomatic Immunity is a principle of customary international law that grants immunity to diplomatic
representatives, in order to uphold their dignity as representatives of their respective states and to
allow them free and unhampered exercise of their functions. In the Philippines, immunity is claimed
by request of the foreign state for endorsement by the Department of Foreign Affairs. The
determination by the executive department is considered a political question that is conclusive upon
Philippine Courts (4blue95).

INTERNATIONAL CONTRACTS

Usually, agreements between States and foreign corporations contain stipulations as to which
national legal system governs the contract. Occasionally, however, in case of powerful multinational
companies, such contracts are placed not under any single system of municipal law, but under
international law, general principles of law, or the provisions of the contract itself.

The reason for concluding these so-called internationalized contracts is to establish a balance
between the parties and prevent the State party from evading its obligations under the contract by
changing its own internal law. This is mostly secured by an arbitration clause referring disputes
under the agreement to an international body.

What are the so-called Mandates and Trust Territories?


The Mandates were the overseas possessions of the defeated states of Germany and Turkey which
were placed by the League of Nations under the administration of mandatories to promote their
development and ultimate independence. (Harris, Case and Materials on International Las, 5th ed.,
p. 131.)
When the United Nations replaced the League of Nations, the system of Mandates was replaced by
the System of Trust Territories.

Does the United Nations exercise sovereignty over the territories? In the affirmative, how is this
jurisdiction exercised?
The United Nations exercised residuary sovereignty over the Trust Territories through the Trustee
Powers, who exercised the powers of sovereignty subject to supervision and accountability to the
United Nations. (Oppenheim-Lauterpacht, International Law, Vol. 1, 7th ed., pp. 213-214.) (Since
there are no more Trust Territories, this is just a matter of historical interest.)
BAR :On October 13, 2001, members of Ali Baba, a political extremist organization based in and
under the protection of Country X an espousing violence worldwide as a means of achieving its
objectives, planted high-powered explosive and bombs at the International Trade Tower (ITT) in
Jewel City in Country Y, a member of the United Nations. As a result of the bombing and the collapse
of the 100-story twin towers, about 2000 people, including women and children, were killed or
injured, and billions of dollars in property were lost.

Immediately after the incident, Ali Baba, speaking through its leader Bin Derdandat, admitted and
owned responsibility for the bombing of ITT, saying that it was done to pressure Country Y to release
captured members of the terrorist group. Ali Baba threaded to repeat its terrorist acts against
Country Y if the latter and its allies failed to accede to Ali Baba’s demands. In response, Country X
demanded to the government authorities of Country Y for the purpose of trial and “in the name of
justice.” Country X refused to accede to the demand of Country Y.

What action or actions can Country Y legally take against Ali Baba and Country X to stop the terrorist
activities of Ali Baba and dissuade Country X from harboring and giving protection to the terrorist
organization? Support your answer with reasons. (55%)

1. Country Y may exercise the right of self-defense, as provided under Article 51 of the UN Charter
“until the Security Council has taken measure necessary to maintain international peace and
security”. Self-defense enables Country Y to use force against Country X as well as against the Ali
Baba organization.

2. It may bring the matter to the Security Council which may authorize sections against Country X,
including measure invoking the use of force. Under Article 4 of the UN Charter, Country Y may use
force against Country X as well as against the Ali Baba organization by authority of the UN Security
Council.

Give the three multilateral conventions on Human Rights adopted under the direct auspices of the
United Nations? (2%)

The following are multilateral conventions on Human Rights adopted under the direct auspices o the
United Nations.
1. International Covenant on Civil and Political Rights;

2. Conventions on the Elimination of All Forms of Discrimination against Women;

3. Convention on the Rights of the Child;

4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or


Punishment;

5. International Convention on the Elimination of All Forms of Racial Discrimination;

6. Convention on the Prevention and Punishment of the Crime of Genocide; and

7. International Convention on Economic, Social, and Cultural Rights

BAR: State Epsilon, during peace time, has allowed foreign ships innocent passage through
Mantranas Strait, a strait within Epsilon’s territorial sea which has been used y foreign ships for
international navigation. Such passage enabled the said ships to traverse the strait between one part
of the high seas to another. On June 7, 1997, a warship of State Beta passed through the above-
named strait. Instead of passing through continuously and expeditiously, the ship delayed its
passage to render assistance to a ship of State Gamma which was distressed with no one nearby to
assist. When confronted by Epsilon about the delay, eta explained that the delay was due to force
majeure in conformity with the provision of Article 18(2) of the 1982 Convention on the Law of the
Sea (UNCLOS). Seven months later, Epsilon suspended the right of innocent passage of warships
though Mantranas Strait without giving any reason therefore. Subsequently, another warship of
Beta passed through the said strait, and was fired upon by Epsilon drawing attention to the existing
customary international law that the regime of innocent passage (even of transit passage) is non-
suspendable. Epsilon countered that Mantranas Strait is not a necessary route, there being another
suitable alternative route. Resolve the above-mentioned controversy, Explain your answer (4%)

HELD:

Assuming that Epsilon and Beta are parties to the UNCLOS, the controversy may be resolved as
follows:

Under the UNCLOS, warships enjoy a right of innocent passage. It appearing that the portion of
Epsilon’s territorial sea in question is a strait used for international navigation, Epsilon has no right
under international law to suspend the right of innocent passage. Article 45(2) of the UNCLOS is
clear in providing that there shall be no suspension of innocent passage through straits used for
international navigation.

On the assumption that the straits in question is not used for international navigation, still the
suspension of innocent passage by Epsilon cannot be effective because suspension is required under
international law to be duly published before it can take effect. There being no publication prior to
the suspension of innocent passage by Beta’s warship, Epsilon’s act acquires no validity.

Moreover, Epsilon’s suspension of innocent passage may not be valid for the reason that there is no
showing that it is essential for the protection of its security. The actuation of Beta’s warship in
resorting to delayed passage is for cause recognized by the UNCLOS as excusable, i.e., for the
purpose of rendering assistance to persons & ship in distress, as provided in Article 18(2) of the
UNCLOS. Hence, Beta’s warship complied with the international law norms on right of innocent
passage.

THE INTERNATIONAL COURT OF JUSTICE

1) "Optional Clause" of the ICJ:

As a rule, the ICJ can operate only on the basis of the consent of States to its jurisdiction. Such may
take the form of a special agreement between States to submit an existing dispute before the Court
(i.e. compromis).

However, under the 'optional clause' (art. 36(2), ICJ Statute), a State may declare in advance that
they recognize the jurisdiction of the Court as compulsory ipso facto and without need of special
agreement, in relation to any other State accepting the same obligation, in all legal disputes
concerning:
a. the interpretation of a treaty;
b. any question of international law
c. existence of any fact which, if established, would constitute breach of international obligation; and
d. nature or extent of reparation to be made for breach of international obligation.

2006 BAR: In 1980, the United States filed with the International Court of Justice a complaint against
Iran alleging that the latter is detaining American diplomats in violation of International law. Explain
how the international court of justice can acquire jurisdiction over these contending countries.

Held: Article 36 of the ICJ statutes states that both parties must agree to submit themselves to the
jurisdiction of the international court of justice.

June 12, 2007 notes: the seat of international court of justice is at the Hague or elsewhere as it may
decide, except during the judicial vacations the dates and duration of which it shall fix (ICJ Statute
Art 22)-2006 Bar Question

June 12,2007 notes: the court is composed of 15 members who must be of high moral character and
possess the qualifications required in their respective countries for appointment to the highest
judicial office or are jurisconsults of recognized competence in international law (art 2, ICJ statute)-
2006 Bar Question

2) STARE DECISIS

4blue95: it does not apply to the ICJ.

Under the statute of the ICJ, previous decisions have no binding force; in practice, however, the
Court always takes past decisions into account.

Q: What does it mean to decide a case EX AEQUO ET BONO?


A: It is to rule in justice and fairness -- equity overrides all other rules of law. The ICJ has no power to
decide a case ex aequo et bono, unless all parties agree thereto [art. 38(2), ICJ Statute].

Q: Who has standing before the ICJ?


A: Only States may be parties in contentious proceedings before the ICJ (art 34, ICJ Statute).

Under its Statue, give two limitations on the jurisdiction of the International Court of Justice (2%)

The following are the limitations on the jurisdiction of the International Court of Justice under its
Statute:

1. Only states may be parties in cases before it. (Article 34).


2. The consent of the parties is needed for the court to acquire jurisdiction over a case.
(Article 36)

PUBLIC INTERNATIONAL LAW