In partial fulfillment for the requirements in

PIL: Public International Law

2nd Semester, A.Y. 2021-2022

Assignment 2:
Notes and Cases on General Concepts in Public
International Law

Submitted to

ATTY. PEE JAY T. CUARTEROS, CPA

Faculty, College of Law
University of Cordilleras
Gov. Pack Rd., Baguio City, 2600

Submitted by

ALLAN B. CASTRO
JD 2

February 5, 2022
 TABLE OF CONTENTS

CONTENTS PAGE

A) GENERAL PRINCIPLES
1) Definition ………………………………………….. 1

2) Distinguished from …………………………………… 1

a) Private international law ……………………… 1
b) International morality or ethics ………………. 1
c) International comity …………………………….. 2
d) International diplomacy …………………………….. 2
e) International administrative law ……………………… 2

3) Sources
a) Article 38, Statute of International Court of Justice …. 2
b) Jus cogens …………………………………………… 3
c) Primary …………………………………………… 4
i) International treaties and conventions ………… 5
ii) International customs …………………………….. 6
 Elements …………………………………… 7
 Baxter paradox …………………………….. 8
 Opinion juris ……………………………………. 8
 Persistent objector …………………………….. 9
 International Court of Justice (ICJ) Judgment of
27 June 1986 in case concerning Military and
Paramilitary Activities in and against Nicaragua
(Nicaragua v. USA, Communique 86/8) ………… 9
iii) General principles of law ……………………… 12
 Res judicata …………………………………… 12
 Prescription …………………………………… 12
 Pancta sunt sevanda ……………………… 13
 Estoppel …………………………………… 13

d) Secondary ………………………………………….. 13
i) Judicial decisions …………………………………… 13
ii) Writings of publicists ……………………………. 13
CONTENTS PAGE
e) Others ………………………………………………… 14
i) Soft laws …………………………………………. 14
ii) Lex mercatoria ………………………………….. 14

4) Obligations erga omnes …………………………… 15

5) Concept of ex aequo et bono …………………………… 15

B) RELATIONSHIP BETWEEN INTERNATIONAL

AND NATIONAL LAW
1) Horizontal v. Vertical …………………………………. 15

2) Monist v. Dualist ………………………………………… 15

3) 1987 Constitution, Article II, Section 2 …………….. 16

a) Incorporation v. Transformation …………………… 17

b) Right to self-determination …………………… 17

4) 1987 Constitution, Article VII, Section 21 ……………. 18

5) Conflicts between international law and municipal law . 18

a) 1987 Constitution, Article VIII, Section 5(2)(a) ……... 18

6) Cases
a) Gonzales v. Hechanova, G.R. No. L-21897,
October 22, 1963 …………………………………. 19
b) Tanada v. Angara, G.R. No. 118295, May 2, 1997 ……. 21
c) Pimentel v. Office of the Executive Secretary,
G.R. No. 158088, July 6, 2005 …………………… 23
d) Pharmaceutical and Health Care Assn. of the
Philippines (PHAP) v. Health Secretary,
G.R. No. 173034, October 9, 2007 …………………… 25
CONTENTS PAGE
e) The Province of North Cotabato v. The Government
of the Republic of the Philippines Peace Panel,
G.R. No. 183591, 568, SCRA 402, 14 October 2008 … 26
f) Ang LADLAD LGBT Party v. COMELEC,
G.R. No. 190582, 618 SCRA 32, 8 April 2010 ……….. 32

C) SUBJECTS OF INTERNATIONAL LAW

1) States ………………………………………………… 34
a) Article 1, 1933 Montevideo Convention ……………… 34
b) Elements …………………………………………. 34
c) Creation ………………………………………………… 36
d) Classes ………………………………………………… 39

2) Vatican City ………………………………………………… 39

a) Holy See v. Rosario, G.R. No. 101949, 1 December 1994 40

3) Colonies and dependencies …………………………… 43

4) Territories under International Control or Supervision .. 43

5) The United Nations …………………………………. 43

a) The United Nations Charter …………………… 43
b) Membership ………………………………………… 43
c) Organs ……………………………………………….. 44

6) Belligerent communities ………………………….. 47

7) International administrative bodies …………………… 47

a) Reparation Suffered in the Service of the
United Nations (1949) ………………………….. 47

8) Individuals ………………………………………………. 48
A) GENERAL PRINCIPLES

1) Definition of Public International Law

The traditional definition of international law is that it is a body of rules

and principles of action which are binding upon civilized states in their
relations to one another. States are the sole actors in this definition and,
in the past, public international law dealt almost exclusively with
regulating the relations between states in diplomatic matters and in the
conduct of war.

Today, sovereign states remain as the principal subjects of international

law; but they are now joined by international organizations and even by
individuals.’ Thus, the Restatement (Third) of Foreign Relations Law of
the United States, which U.S. courts generally consider as the most
authoritative work on the subject, defines international law as the law
which deals “with the conduct of states and of international
organizations and with their relations inter se, as well as with some of
theirharactens with persons, whether natural or juridical.”

2) Public International Law Distinguished

a) Private international law: Private international law consists of

principles and rules for dealing with legal disputes that have a foreign
element: for example, a cross-border divorce case, or transnational
commercial dispute. The terms ‘private international law’ and ‘conflict
of laws’ are interchangeable, and the subject encompasses choice of
law, the court’s jurisdiction and the recognition and enforcement of
foreign judgments. The scope of private international law varies from
country to country, however, and each jurisdiction has its own rules.

b) International morality or ethics: International Morality consists of

moral principles which are endorsed by a number of nations. The rules
of customary International Law reflect International Morality. One of
the major sources and sanctions of International Law has been
International Morality.

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 c) International comity: Even when a state has basis for exercising
jurisdiction, it will refrain from doing so if its exercise will be
unreasonable. This is treated in Hartford Fire Insurance Co. v.
California, but the principle involved is summed up in Third
Restatement. Unreasonableness is determined by evaluating various
factors, such as the link of the activity to the territory of the
regulating state, the connection, such as nationality, residence, or
economic activity, between the regulating state and the person
principally responsible for the activity to be regulated, the character
of the activity to be regulated, the existence of justified expectations
that might be protected or hurt by the regulation, the likelihood of
conflict with regulation by another state.

d) International diplomacy: The art or practice of conducting

international relations, as in negotiating alliances, treaties, and
agreements.

e) International administrative law: The notion of ‘international

administrative law’ is frequently referred to by judges of international
administrative tribunals (IATS), as well as applicants and respondents
in the proceedings of those tribunals. Many seminars organized by
IATS use the term ‘international administrative law’.The notion,
however, is far from self-explanatory. It surely depicts an important
aspect of the legal relationship between international organizations
and their employees, but the use of the term by IATS has not been
entirely clear.

3) Sources of Public International Law

a) Article 38, Statute of International Court of Justice

Article 38 is primarily a directive to the Court on how it should resolve

conflicts brought before it. Article 38 says:

“The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply:

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 a. international conventions, whether general or particular,
establishing rules expressly recognized by contesting states;
b. international custom, as evidence of a general practice accepted
as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of
law.

This provision shall not prejudice the power of the Court to decide ex
aequo et bono, if the parties agree thereto.”

Article 38 is a declaration by states that these are the laws under

which they are willing to be bound. Thus, another statement of
sources is the Restatement (Third) of Foreign Relations Law of the
United States which says:

“ 1. A rule of international law is one that has been accepted as such by

the international community of states

a. in the form of customary law;

b. by international agreement; or
c. by derivation from general principles common to the major
legal systems of the world.

2. Customary international law results from a general and consistent

practice of states followed by them from a sense of legal obligation.

3. International agreements create law for the states parties thereto

and may lead to the creation of customary international law which such
agreements are intended for adherence by states generally and are in
fact widely accepted.

4. General principles common to the major legal systems, even if not

incorporated or reflected in customary law or international

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 agreements, may be invoked as supplementary rules of international
law where appropriate.”

b) Jus cogens
Jus cogens (or ius cogens) is a latin phrase that literally means
“compelling law.” It designates norms from which no derogation is
permitted by way of particular agreements. It stems from the idea
already known in Roman law that certain legal rules cannot be
contracted out, given the fundamental values they uphold.

Most states and authors agree that jus cogens exists in international
law. Opinions diverge however as to its exact content, sources,
means of identification, and application, as well as to its precise
effects and role within the international legal order. Despite
persistent debates on these matters, jus cogens is now referred to in
several legal instruments within and beyond the law of treaties.

The 1969 and 1986 Vienna Conventions on the Law of Treaties

stipulate that a treaty is void if it conflicts with jus cogens (Art. 53 and
64). The same is true for unilateral declarations, following the guiding
principles adopted by the International Law Commission in 2006
(Principle 8).

According to the Articles on Responsibility finalized by the same

commission in 2001 and 2011, states as well as international
organizations shall cooperate to bring to an end any serious breach
of jus cogens, and shall not recognize as lawful a situation created by
such a breach, nor render aid or assistance in maintaining such
situation (Art. 41/2001 and 42/2011). Moreover, if states or
international organizations are to violate jus cogens, they cannot
invoke any circumstance precluding the wrongfulness of their
conduct, such as necessity or force majeure (Art. 26). Finally,
countermeasures shall not affect jus cogens obligations (Art. 50/2001
and 53/2011).

No exhaustive list of peremptory norms has been drawn officially, but

it is commonly accepted as including the prohibition of the use of

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 force between states, the prohibition of slavery, racial discrimination,
torture and genocide, as well as peoples’ right to self-determination.
Given the limited number of jus cogens rules and set of effects
attached to them, practice and case law are not abundant. In
contrast, much scholarly attention has been paid to this controversial
topic. Depending on the theoretical perspective adopted, the
content and function of jus cogens can be described in very different
terms.

Hence there are no univocal answers to the fundamental or technical

questions raised by the definition and application of jus cogens.
Authors provide various solutions in this respect, the appreciation of
which very much depends on whether they suit one’s very own
representations of what international legal order is and how it works.

c) Primary Sources of Public International Law

i) International treaties and conventions:

International conventions are generally referred to as treaties.
Treaties are written agreements between States that are governed
by international law. Treaties are referred to by different names,
including agreements, conventions, covenants, protocols and
exchanges of notes. If States want to enter into a written
agreement that is not intended to be a treaty, they often refer to it
as a Memorandum of Understanding and provide that it is not
governed by international law. Treaties can be bilateral,
multilateral, regional and global.

The law of treaties is now set out in the 1969 Vienna Convention on
the Law of Treaties which contains the basic principles of treaty
law, the procedures for how treaties becoming binding and enter
into force, the consequences of a breach of treaty, and principles
for interpreting treaties. The basic principle underlying the law of
treaties is pacta sunt servanda which means every treaty in force is
binding upon the parties to it and must be performed by them in
good faith. The other important principle is that treaties are
binding only on States parties. They are not binding on third States

5
 without their consent. However, it may be possible for some or
even most of the provisions of a multilateral, regional or global
treaty to become binding on all States as rules of customary
international law.

There are now global conventions covering most major topics of

international law. They are usually adopted at an international
conference and opened for signature. Treaties are sometimes
referred to by the place and year of adoption, e.g. the 1969 Vienna
Convention. If a State becomes a signatory to such a treaty, it is not
bound by the treaty, but it undertakes an obligation to refrain from
acts which would defeat the object and purpose of the treaty.

A State expresses its consent to be bound by the provisions of a

treaty when it deposits an instrument of accession or ratification to
the official depository of the treaty. If a State is a signatory to an
international convention it sends an instrument of ratification. If a
State is not a signatory to an international convention but decides
to become a party, it sends an instrument of accession. The legal
effect of the two documents is the same. A treaty usually enters
into force after a certain number of States have expressed their
consent to be bound through accession or ratification. Once a
State has expressed its consent to be bound and the treaty is in
force, it is referred to as a party to the treaty.

The general rule is that a treaty shall be interpreted in good faith in

accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in light of its object and purpose.
The preparatory work of the treaty and the circumstances of its
conclusion, often called the travaux preparatoires, are a
supplementary means of interpretation in the event of ambiguity.

ii) International customs

International custom – or customary law – is evidence of a general
practice accepted as law through a constant and virtually uniform
usage among States over a period of time. Rules of customary
international law bind all States. The State alleging the existence of
a rule of customary law has the burden of proving its existence by

6
showing a consistent and virtually uniform practice among States,
including those States specially affected by the rule or having the
greatest interest in the matter.

For example, to examine the practice of States on military uses of

outer space, one would look in particular at the practice of States
that have activities in space. Most ICJ cases also require that the
States who engage in the alleged customary practice do so out of a
sense of legal obligation or opinio juris rather than out of comity or
for political reasons. In theory, opinio juris is a serious obstacle to
establishing a rule as custom because it is extremely difficult to find
evidence of the reason why a State followed a particular practice.

In practice, however, if a particular practice or usage is widespread,

and there is no contrary State practice proven by the other side,
the Court often finds the existence of a rule of customary law. It
sometimes seems to assume that opinio juris was satisfied, and it
sometimes fails to mention it.

Therefore, it would appear that finding consistent State practice,

especially among the States with the most interest in the issue,
with minimal or no State practice to the contrary, is most
important. Undisputed examples of rules of customary law are (a)
giving foreign diplomats criminal immunity; (b) treating foreign
diplomatic premises as inviolable; (c) recognizing the right of
innocent passage of foreign ships in the territorial sea; (d)
recognizing the exclusive jurisdiction of the flag State on the high
seas; (5) ordering military authorities to respect the territorial
boundaries of neighboring States; and (6) protecting non-
combatants such as civilians and sick or wounded soldiers during
international armed conflict

Elements of International Customs

The initial factor for determining the existence of custom is the
actual behavior of states (usus). This includes several elements:
duration, consistency, and generality of the practice of states.

7
The required duration (diuturnitas) can be either short or long. An
example of customary law that is the result of long, almost
immemorial, practice is the rule affirmed in The Paquete Havana2
on the exemption of fishing vessels from capture as prize of war.
Duration therefore is not the most important element. More
important is the consistency and the generality of the practice

Uniformity and generality of practice need not be complete, but it

must be substantial. In Nicaragua v. United States (ICJ Reports
1986), the Court said that the practice need not be “in absolute
conformity” with the purported customary rule. It said:

“In order to deduce the existence of customary rules, the Court

deems it sufficient that the conduct of states should, in general, be
consistent with such rules, and that instances of state conduct
inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new
rule.”

Baxter paradox
Baxter's Paradox basically says that countries will seek to codify in
treaties international community expectations that are considered
common "customary law". However, the more countries that sign
on to the international treaties, the more difficult it becomes to
differentiate the customary law (that exists without treaty) from
the terms of the treaties themselves.

So if one were to study customary law, which practices would they

use as evidence? If they use the practices of countries adhering to
the treaty, are they really studying the customary law, or are they
just studying the requirements of the treaty? Once a treaty is
codified, does that entirely remove the country from any analysis
of the custom law upon which the treaty is based? And are treaty
adherents' practices relevant to a discussion of customs followed
by countries that are not parties to the treaty, but who
nonetheless follow the same customs?

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Opinion juris
Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way they
do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of behavior
is obligatory, is what makes practice an international rule. Without
it, practice is not law. ... Even humanitarian consideration by itself
does not constitute opinio juris. As the Nicaragua case again put it:

“... or a new customary rule to be formed, not only must the

acts concerned ‘amount to a settled practice,’ but they must
be accompanied by the opinio juris sive necessitatis. Either the
States taking such action or other States in a position to react
to it, must have behaved so that their conduct is “evidence of
a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it.” The need for such a
belief, i.e., the existence of a subjective element, is implicit in
the very notion of the opinio juris sive necessitatis.”

Persistent objector
In international law, a persistent objector is a sovereign state
which has consistently and clearly objected to a norm of customary
international law since the norm's emergence, and considers itself
not bound to observe the norm. The concept is an example of the
positivist doctrine that a state can only be bound by norms to
which it has consented.

International Court of Justice (ICJ) Judgment of 27 June 1986 in case

concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. USA, Communique 86/8)

In Nicaragua v. United States (ICJ Reports 1986), the Court said

that the practice need not be “in absolute conformity” with the
purported customary rule. It said:

9
“In order to deduce the existence of customary rules, the Court
deems it sufficient that the conduct of states should, in general, be
consistent with such rules, and that instances of state conduct
inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new
rule.”
Facts: On April 9,1984, Nicaragua initiated proceedings against the
United States of America in the International Court of Justice. The
action was based on the allegation that the US had supported, by
its policy and actions, a mercenary army, the “Contras”, in
launching attacks on the territory of Nicaragua, with the purpose
of overthrowing the “Sandinista” Government of Nicaragua.

By funding and assisting, covertly and overtly, the "Contra"

movement, the United States was using, according to Nicaragua,
armed force against Nicaragua in violation of the international
obligations of the United States under general international law as
well as under the United Nations Charter, the OAS Charter and the
bilateral United States-Nicaragua Treaty of Friendship and
Commerce.

It was also submitted that the US had breached customary

international law by: (1) violating the sovereignty of Nicaragua by
armed attacks against Nicaragua: (2) using force and the threat of
force against Nicaragua; (3) intervening in the internal affairs of
Nicaragua; (4) infringing upon the freedom of the high seas and
interrupting peaceful maritime commerce; (5) killing, wounding
and kidnapping citizens of Nicaragua.

Nicaragua demanded that all such actions cease and that the
United States had an obligation to pay reparations to the
government for damage to their people, property, and economy.

The United States argued that the ICJ should refrain from applying
the rules of customary international law because they have been
“subsumed” and “supervened” by those of international treaty
law, and especially those of the United Nations Charter.

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Issue: Whether the United States had breached customary
international law?

Whether a treaty commitment “counts” as practice for customary

international law and whether a rule belongs to customary
international law even if the behavior of States frequently fails to
conform with the rule in question.

Ruling: The United States of America was in breach of its

obligation under customary international law not to intervene in
the affairs of another State, not to use force against another State,
not to violate the sovereignty of another State, not to intervene in
another State’s affairs, and not to interrupt peaceful maritime
commerce.

The ICJ confirmed that a custom is constituted by two elements:

(1) general practice (objective element); and
(2) opinio juris (subjective element).

Customary international law results from a general and consistent

practice of states followed by them from a sense of legal
obligation. This statement contains the two basic elements of
custom: the State practice and opinio juris.

The initial factor for determining the existence of custom is the

actual behavior of states (usus) or the State practice. It has sub-
elements: duration, consistency, and generality of the practice of
states. The required duration can be either short or long but
enough to enable it to crystallize. Uniformity and generality of
practice need not be complete, but it must be substantial.

Once the existence of state practice has been established, it

becomes necessary to determine why states behave the way they
do. Opinio juris, or the belief that a certain form of behavior is
obligatory, is what makes practice an international rule. Without it,
practice is not law.

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 The existence of opinio juris is a matter of proof. The burden of
proving its existence falls on the state claiming it.

In this case, the Court said that the practice need not be “in
absolute conformity” with the purported customary rule. In order
to deduce the existence of customary rules, the Court deems it
sufficient that the conduct of states should, in general, be
consistent with such rules, and that instances of state conduct
inconsistent with a given rule should generally have been treated
as breaches of that rule, not as indications of the recognition of a
new rule.

In this case, one of the issues was whether the prohibition of the
use of force was customary law, the Court said: It considers that
this opinio juris may be deduced from, inter alia, the attitude of the
Parties and of States towards certain General Assembly
resolutions, and particularly Resolution 2625 (XXV) entitled
“Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in Accordance with the
Charter of the United Nations.”

Consent to such resolutions is one of the forms of expression of an

opinio juris with regard to the principle of non-use of force,
regarded as a principle of customary international law,
independently of the provisions, especially those of an institutional
kind, to which it is subject on the treaty-law plane of the Charter.

iii) General principles of law

 Res judicata: Res judicata refers to the rule that a final judgment
or decree on the merits by a court of competent jurisdiction is
conclusive of the rights of the parties or their privies in all later
suits on all points and matters determined in the former suit.5

The elements of res judicata are as follows: (1) the former

judgment or order must be final; (2) the judgment or order must
be on the merits; (3) it must have been rendered by a court
having jurisdiction over the subject matter and the parties; (4)

12
 there must be, between the first and the second action, identity
of parties, of subject matter and cause of action.6

 Prescription: is the effect of the lapse of time in creating and

destroying rights. Prescription is either acquisitive, in that an
individual is allowed, after a specified period of time, to acquire
title, or extinctive—i.e., barring for a period of time certain court
actions

 Pacta sunt sevanda: The first fundamental rule on treaties is

pacta sunt servanda. Article 26 of the Convention says that
“every treaty in force is binding upon the parties to it and must be
performed by them in good faith.”

 Estoppel: is a rule of international law that bars a party from

going back on its previous representations when those
representations have induced reliance or some detriment on the
part of others.

d) Secondary Sources of International Law

i) Judicial decisions
Article 38 of the Statute directs the Court to apply judicial decisions
as subsidiary means for the determination of the rules of law. But
this is made subject to Article 59 which says that “the decisions of
the court have no binding force except between the parties and in
respect of that particular case.”

Hence, such decisions do not constitute stare decisis. However, the

decisions of the ICJ are not only regarded as highly persuasive in
international law circles; they have also contributed to the
formulation of principles that have become international law.

ii) Writings of publicists

In many cases of first impression, the only authorities that can be
cited are writers. The extent to which they are referred to depends
on the tradition of the court or of individual judges. In common law
jurisdictions, there is reluctance to use them, more so in the US

13
 than in Britain. In civil law jurisdictions, there is more ready
reference to writers. The ICJ is generally reluctant to refer to
writers but they are often taken into consideration.

“Publicists” are institutions which write on international law. They

also play a role. The more significant ones are: The International
Law Commission, an organ of the U.N.; the Institut de Droit
International, the International Law Association, a multinational
body; the (Revised) Restatement of Foreign Relations Law of the
United States; and the annual publication of the Hague Academy
of International Law. It should be noted, however, that these
institutions are generally government sponsored; hence, they bear
within themselves a potential for national bias.

e) Other Sources of Public International Law

i) Soft laws
Not included among the sources is what a growing literature refers
to as “soft law.” Others prefer to call this category “non-treaty
agreements.” They are international agreements not concluded as
treaties and therefore not covered by the Vienna Convention on
the Law of Treaties.

ii) Lex mercatoria

Used to designate the concept of a national body of legal rules and
principles, which are developed primarily by the international
business community itself based on custom, industry practice, and
general principles of law that are applied in commercial
arbitrations (Commercial Arbitration, International) in order to
govern transactions between private parties, as well as between
private parties and States, in transborder trade, commerce, and
finance.

4) Obligations erga omnes

An obligation erga omnes, in contrast, is one that is owed to the
international community as a whole. The legal effect of such a
characterisation is the generation of a procedural right of standing, on
the part of all states, to invoke the responsibility of a state that is in

14
 breach of this obligation. The erga omnes character of a given obligation
may indeed be dependent upon ‘the importance of the rights involved’.

Each of these rights may entail a number of different obligations, from

the obligation to respect that right to the obligation to promote or
protect it. Some of these obligations may be opposable erga omnes
some may not be. In any case, the concept of erga omnes attaches to
the obligation, not the right.

There is therefore an important distinction between and obligation erga

omnes and its corresponding right(s). By referring to the obligation erga
omnes to respect the right to self-determination, the Court in Chagos
provided a welcome clarification on this point.

5) Concept of ex aequo et bono

Often used in international law when a matter is to be decided according
to principles of equity rather than by points of law. Equity, when
accepted, is an instrument whereby conventional or customary law may
be supplemented or modified in order to achieve justice. It has both a
procedural and substantive aspect. Procedurally, it means a mandate
given to a judge to exercise discretion in order to achieve a
determination that is more equitable and fair. Different kinds of equity
are distinguished: intra legem (within the law), that is, the law is adapted
to the facts of the case; praeter legem (beyond the law), that is, it is
used to fill the gaps within the law; and contra legem (against the law),
that is, a refusal to apply the law which is seen as unjust. Obviously, this
can be an area of great controversy.

B) RELATIONSHIP BETWEEN INTERNATIONAL AND

NATIONAL LAW

1) Horizontal v. Vertical
Current discussions on the politics of international law draw an important
distinction between “vertical” enforcement mechanisms, where
international law is enforced by domestic courts, often in cooperation
with international tribunals, and “horizontal” enforcement mechanisms,

15
 where international law is enforced in an environment of threats of
retaliatory action by policy-makers in other states.

2) Monist v. Dualist
The conventional wisdom in international law is that a state can accept
and integrate international law into the domestic system in one of two
ways. In a monist legal system, international law is considered joined
with and part of the internal legal order of a state. In a dualist legal
system, on the other hand, international law stands apart from national
law, and to have any effect on rights and obligations at the national level,
international law must be domesticated through legislative process. The
tension between these competing views of international law reached its
height in Europe between World War I and World War II, when legal
scholars began to seriously question how and to what extent binding
international legal obligations and formal international institutions could
minimize the threat of war. At its core, however, the distinction between
a monist and dualist theory rests between two competing and important
goals. Specifically, monist theory prioritizes the desirability of a formal
international legal order to establish the rule of law among nations, while
dualist theory prioritizes the notions of individual self-determination and
sovereignty at the state level.

Under a monist model, international law serves not merely as a legal

framework to guide state-to-state relations in the international sphere,
but as a source of law integrated into and superior to domestic law. As
such, a properly ratified or accepted treaty forms part of the national
legal regime. An important consequence of this understanding of the
role of international law is that it may be applied and enforced directly in
domestic courts without the necessity of domestic implementation. This
framework thus creates a single and unitary legal system, with
international law at the top of the legal order and local, municipal law
subordinate. The monist view is attributed most often to the work of
Austrian legal scholar Hans Kelsen, who advocated in the 1920s for the
primacy of international law as a derivative of natural law, rather than as
merely an expression of the individual decisions of states to be bound by
certain norms through customary practice. Ultimately, Kelsen’s monist
theory was intended to promote international peace by creating binding

16
 obligations enforceable against state actors in formal international
justice institutions, as indicated in his famous work, Peace Through Law
(1944).

3) 1987 Constitution, Article II, Section 2

“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.”
a) Incorporation v. Transformation
Under the 1987 Constitution, international law can become part of the
sphere of domestic law either by transformation or incorporation. The
transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism
such as local legislation. The incorporation method applies when, by
mere constitutional declaration, international law is deemed to have
the force of domestic law.

Generally accepted principles of international law, by virtue of the

incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules accepted
as binding result from the combination of two elements: the
established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory
by the existence of a rule of law requiring it. (Mijares v. Ranada, G.R.
No. 139325, April 12, 2005, 455 SCRA 397).

Treaties become part of the law of the land through transformation

pursuant to Article VII, Section 21 of the Constitution which provides
that “no treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the members of the
Senate.” Thus, treaties or conventional international law must go
through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to domestic

17
 conflicts. (Pharmaceutical & Health Care Assn. of the Phil. v. Health
Secretary Duque, et al., G.R. No. 173034, October 19, 2007).

b) Right to self-determination
Self-determination denotes the legal right of people to decide their
own destiny in the international order. Self-determination is a core
principle of international law, arising from customary international
law, but also recognized as a general principle of law, and enshrined in
a number of international treaties.
4) 1987 Constitution, Article VII, Section 21
The manner of ratification differs from state to state. In the Philippines, it
is governed by Article VII, Section 21 of the Constitution. But between
signature and ratification a state is required by Article 18(a) not to
engage in acts which can defeat the purpose of the treaty.

“Section 21. No treaty or international agreement shall be valid and

effective unless concurred in by at least two-thirds of all the Members of
the Senate.”

5) Conflicts between international law and municipal law

a) 1987 Constitution, Article VIII, Section 5(2)(a)

Should a conflict arise between an international agreement and the
Constitution, the treaty would not be valid and operative as domestic
law. The Constitution, in Article VIII, Section 5, 2(a) explicitly
recognizes the power of the Supreme Court to declare a treaty
unconstitutional. This does not mean, however, that a treaty that has
been declared unconstitutional loses its character as international
law.

Under the “dualist” theory, which the Constitution accepts, the

unconstitutionality of a treaty is purely a domestic matter. As Article
27 of the Vienna Convention on the Law of Treaties says, “A party may
not invoke the provisions of its internal law as justification for its
failure to perform a treaty.” Of interest here is the manner in which

18
the Supreme Court handled the challenge to the Senate’s ratification
of the GATT Treaty in Tanada v. Angara.

The petitioners in the case argued that the “letter, spirit and intent”
of the Constitution mandating “economic nationalism” were violated
by the “parity provisions” and “national treatment clauses” scattered
in various parts not only of the WTO Agreement and its annexes but
also in the Ministerial Decisions and Declarations and in the
Understanding on Commitments in Financial Services. The petitioners
had relied on the nationalistic provisions of Articles II and XII of the
Constitution. In reply, the Court said:

“By its very title, Article II of the Constitution is a “declaration of

principles and state policies.” The counterpart of this article in the 1935
Constitution is called the “basic political creed of the nation” by Dean
Vicente Sinco. These principles in Article II are not intended to be self-
executing principles ready for enforcement through the courts. They
are used by the judiciary as aids or as guides in the exercise of its power
of judicial review, and by the legislature in its enactment of laws. As
held in the leading case of Kilosbayan, Incorporated vs. Morato, the
principles and state policies enumerated in Article II and some sections
of Article XII are not “self executing provisions, the disregard of which
can give rise to a cause of action in the courts. They do not embody
judicially enforceable constitutional rights but guidelines for
legislation.”

All told, while the Constitution indeed mandates a bias in favor of

Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the world on
the bases of equality and reciprocity and limits protection of Filipino
enterprises only against foreign competition and trade practices that
are unfair. In other words, the Constitution did not intend to pursue an
isolationist policy. It did not shut out foreign investments, goods and
services in the development of the Philippine economy. While the
Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them

19
 either. In fact, it allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that is unfair.”

6) Cases

a) Gonzales v. Hechanova, G.R. No. L-21897, October 22, 1963

Facts: Executive Secretary Hechenova authorizes the importation of

67,000 tons of imported rice from private sources. Ramon Gonzales, a
rice planter and the president of the Iloilo Rice and Corn Planters
Association, filed a petition contending that the act of the importation
of rice was conducted “without the jurisdiction of the respondents”
due to RA No. 3452 amends RA No. 220 that prohibits the importation
of foreign rice by the Rice and Corn Administration or any other
government agency.

The petitioners contend that the policy of the government is to

engage the purchase of these basic foods directly from those tenants,
farmers, growers, producers and landowners in the Philippines who
wish to dispose of their products at a price that will suffice the cost of
their labor and investment.

Respondent Hechenova countered the claim of the petitioners that

the importation was authorized by the President for military stock file
purposes. It is for the alleged authority of the President to be duty-
bound to prepare for the challenge of threats of war or emergency
without waiting for special authority. He also contends that although
RA No. 2207 and RA No. 4352 prohibits the importation of rice and
corn by “government agency”, the government itself has no
prohibition against importation.

Hechenova further contends that the government of the Philippines

entered into a contract with Vietnam and Burma. The said contracts
were valid under the international law and should be binding with
both parties.

Issue: Whether our courts can invalidate international agreements?

20
 Ruling: Yes, the Supreme Court of the Philippines has vested power to
invalidate such agreements through our Constitution.

Sec. 2 of Art. VIII of the Constitution states that, “ that the Supreme
Court may not be deprived "of its jurisdiction to review, revise,
reverse, modify, or affirm on appeal, certiorari, or writ of error as the
law or the rules of court may provide, final judgments and decrees of
inferior courts in — (1) All cases in which the constitutionality or
validity of any treaty, law, ordinance, or executive order or regulation
is in question".

Here, the Constitution authorizes the nullification of a treaty when it

has conflicts with the fundamental law and also if it is not in
accordance with an act of the Congress.

b) Tanada v. Angara, G.R. No. 118295, May 2, 1997

Facts: Petitioners prayed for the nullification, on constitutional

grounds, of the concurrence of the Philippine Senate in the
ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization (WTO Agreement, for
brevity) and for the prohibition of its implementation and
enforcement through the release and utilization of public funds, the
assignment of public officials and employees, as well as the use of
government properties and resources by respondent-heads of various
executive offices concerned therewith.

They contended that WTO agreement violates the mandate of the

1987 Constitution to “develop a self-reliant and independent national
economy effectively controlled by Filipinos x x x (to) give preference
to qualified Filipinos (and to) promote the preferential use of Filipino
labor, domestic materials and locally produced goods” as (1) the WTO
requires the Philippines “to place nationals and products of member-
countries on the same footing as Filipinos and local products” and (2)
that the WTO “intrudes, limits and/or impairs” the constitutional
powers of both Congress and the Supreme Court.

21
Issue:
Whether provisions of the Agreement Establishing the World Trade
Organization unduly limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is ‘vested in the Congress of the Philippines?

Held:
No, the WTO agreement does not unduly limit, restrict, and impair the
Philippine sovereignty, particularly the legislative power granted by
the Philippine Constitution. The Senate was acting in the proper
manner when it concurred with the President’s ratification of the
agreement.
While sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to
restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations.
Unquestionably, the Constitution did not envision a hermit-type
isolation of the country from the rest of the world. In its Declaration
of Principles and State Policies, the Constitution “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.” By the doctrine of
incorporation, the country is bound by generally accepted principles
of international law, which are considered to be automatically part of
our own laws. One of the oldest and most fundamental rules in
international law is pacta sunt servanda — international agreements
must be performed in good faith. “A treaty engagement is not a mere
moral obligation but creates a legally binding obligation on the parties
x x x. A state which has contracted valid international obligations is
bound to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken.”

By their inherent nature, treaties really limit or restrict the

absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact. After all,

22
 states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to
limit the exercise of their otherwise absolute rights. Thus, treaties
have been used to record agreements between States concerning
such widely diverse matters as, for example, the lease of naval bases,
the sale or cession of territory, the termination of war, the regulation
of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules
governing conduct in peace and the establishment of international
organizations. The sovereignty of a state therefore cannot in fact and
in reality be considered absolute. Certain restrictions enter into the
picture: (1) limitations imposed by the very nature of membership in
the family of nations and (2) limitations imposed by treaty
stipulations. As aptly put by John F. Kennedy, “Today, no nation can
build its destiny alone. The age of self-sufficient nationalism is over.
The age of interdependence is here.”

The WTO reliance on “most favored nation,” “national treatment,”

and “trade without discrimination” cannot be struck down as
unconstitutional as in fact they are rules of equality and reciprocity
that apply to all WTO members. Aside from envisioning a trade policy
based on “equality and reciprocity,” the fundamental law encourages
industries that are “competitive in both domestic and foreign
markets,” thereby demonstrating a clear policy against a sheltered
domestic trade environment, but one in favor of the gradual
development of robust industries that can compete with the best in
the foreign markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the
Filipino capacity to grow and to prosper against the best offered
under a policy of laissez faire.

c) Pimentel v. Office of the Executive Secretary, G.R. No. 158088,

July 6, 2005

23
Facts: The petitioners filed a petition for mandamus to compel the
Office of the Executive Secretary and the Department of Foreign
Affairs to transmit the signed copy of the Rome Statute of the
International Criminal Court to the Senate of the Philippines for its
concurrence pursuant to Sec. 21, Art VII of the 1987 Constitution.

The Rome Statute established the Int'l Criminal Court which will have
jurisdiction over the most serious crimes as genocide, crimes against
humanity, war crimes and crimes of aggression as defined by the
Statute. The Philippines through the Chargie du Affairs in UN. The
provisions of the Statute however require that it be subject to
ratification, acceptance or approval of the signatory state.

Petitioners contend that ratification of a treaty, under both domestic

and international law, is a function of the Senate, hence it is the duty
of the Executive Department to transmit the signed copy to the
senate to allow it to exercise its discretion.

Issue: Whether or not the Exec. Secretary and the DFA have the
ministerial duty to transmit to the Senate the copy of the Rome
Statute signed by a member of the Philippine mission to the U.N. even
without the signature of the President?

Ruling: No. The President as the head of state is the sole organ and
authorized in the external relations and he is also the country's sole
representative with foreign nations, He is the mouthpiece with
respect to the country's foreign affairs.

In treaty-making, the President has the sole authority to negotiate

with other states and enter into treaties but this power is limited by
the Constitution with the 2/3 required vote of all the members of the
Senate for the treaty to be valid. (Sec. 21, Art VII).

The legislative branch part is essential to provide a check on the

executive in the field of foreign relations, to ensure the nation's
pursuit of political maturity and growth.

24
 It should be emphasized that under our Constitution, the power to
ratify is vested in the President, subject to the concurrence of the
Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification. Hence, it is
within the authority of the President to refuse to submit a treaty to
the Senate or, having secured its consent for its ratification, refuse to
ratify it. Although the refusal of a state to ratify a treaty which has
been signed in its behalf is a serious step that should not be taken
lightly, such decision is within the competence of the President alone,
which cannot be encroached by this Court via a writ of mandamus.
This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties. The Court,
therefore, cannot issue the writ of mandamus prayed for by the
petitioners as it is beyond its jurisdiction to compel the executive
branch of the government to transmit the signed text of Rome
Statute to the Senate.
d) Pharmaceutical and Health Care Assn. of the Philippines (PHAP) v.
Health Secretary, G.R. No. 173034, October 9, 2007

Facts: Named as respondents are the Health Secretary,

Undersecretaries, and Assistant Secretaries of the Department of
Health (DOH). For purposes of herein petition, the DOH is deemed
impleaded as a co-respondent since respondents issued the
questioned RIRR in their capacity as officials of said executive
agency.1Executive Order No. 51 (Milk Code) was issued by President
Corazon Aquino on October 28, 1986 by virtue of the legislative
powers granted to the president under the Freedom Constitution.
One of the preambular clauses of the Milk Code states that the law
seeks to give effect to Article 112 of the International Code of
Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the
World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA
adopted several Resolutions to the effect that breastfeeding should
be supported, promoted and protected, hence, it should be ensured
that nutrition and health claims are not permitted for breastmilk
substitutes.In 1990, the Philippines ratified the International
Convention on the Rights of the Child. Article 24 of said instrument
provides that State Parties should take appropriate measures to

25
diminish infant and child mortality, and ensure that all segments of
society, specially parents and children, are informed of the
advantages of breastfeeding. On May 15, 2006, the DOH issued herein
assailed RIRR which was to take effect on July 7, 2006.

Issue: Whether Administrative Order or the Revised Implementing

Rules and Regulations (RIRR) issued by the Department of Health
(DOH) is not constitutional?

Ruling: Yes, under Article 23, recommendations of the WHA do not

come into force for members,in the same way that conventions or
agreements under Article 19 and regulations under Article 21 come
into force.

Article 23 of the WHO Constitution reads:

Article 23. The Health Assembly shall have authority to make

recommendations to Members with respect to any matter within the
competence of the Organization

for an international rule to be considered as customary law, it must be

established that such rule is being followed by states because they
consider it obligatory to comply with such rules

Under the 1987 Constitution, international law can become part of the
sphere of domestic law either

By transformation or incorporation. The transformation method

requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic
law.

Consequently, legislation is necessary to transform the provisions of

the WHA Resolutions into domestic law. The provisions of the WHA
Resolutions cannot be considered as part of the law of the land that

26
 can be implemented by executive agencies without the need of a law
enacted by the legislature

e) The Province of North Cotabato v. The Government of the Republic

of the Philippines Peace Panel, G.R. No. 183591, 568, SCRA 402, 14
October 2008

Facts: This is a consolidated cases surrounding this controversy center

on the armed conflict in Mindanao between the government and the
Moro Islamic Liberation Front

On August 5, 2008, the Government of the Republic of the Philippines

(GRP) and the Moro Islamic Liberation Front (MILF), through the
Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral
Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001 in Kuala Lumpur, Malaysia.

The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically
those who filed their cases before the scheduled signing of the MOA-
AD, this Court issued a Temporary Restraining Order enjoining the
GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the

concluding of several prior agreements between the two parties
beginning in 1996, when the GRP-MILF peace negotiations began. On
July 18, 1997, the GRP and MILF Peace Panels signed the Agreement
on General Cessation of Hostilities. The following year, they signed the
General Framework of Agreement of Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the

MOA-AD by stating that the same contained, among others, the
commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and
pacific settlement of the conflict, and refrain from the use of threat or

27
force to attain undue advantage while the peace negotiations on the
substantive agenda are on-going.

The MOA-AD also identifies as Terms Of Reference two local statutes -

the organic act for the Autonomous Region in Muslim Mindanao
(ARMM) and the Indigenous Peoples Rights Act (IPRA), and several
international law instruments - the International Labour
Oorganization (The International Labour Organisation is a specialised
UN agency that aims to improve living and working conditions.)
Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries in relation to the UN Declaration on the Rights
of the Indigenous Peoples, and the UN Charter, among others.

The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.

In the concept and principles part, they defined what “Bangsamoro

People” means, Bangsamoro homeland, and acknowledged
Bangsamoro people as having the right to self-governance.

Next strand is territory which basically describes the land mass as well
as the maritime, terrestrial, fluvial and alluvial domains including the
aerial domain and the atmospheric space above it, embracing the
mindanao-sulu-palawan geographic region.

The third strand is Resources stated that they can enter into any
economic cooperation and trade relations with foreign countries and
also have the option to establish trade missions in those countries. It
includes the rights for exploring the natural resources. But does not
include aggression against the Government of the Philippines.

And last strand, Governance which discussed the associative

relationship between the Central government and the Bangsamoro
Juridical entity. The BJE is granted the power to build, develop and
maintain its own institutions inclusive of civil service, electoral,
financial and banking, education, legislation, legal, economic, police

28
and internal security force, judicial system and correctional
institutions.

Issue: Whether the contents of the MOA-AD violate the Constitution

and the laws?

Ruling: In general, the objections against the MOA-AD center on the

extent of the powers conceded therein to the BJE. Petitioners assert
that the powers granted to the BJE exceed those granted to any local
government under present laws, and even go beyond those of the
present ARMM.

Before assessing some of the specific powers that would have been
vested in the BJE, however, it would be useful to turn first to a
general idea that serves as a unifying link to the different provisions of
the MOA-AD, namely, the international law concept of association.
Significantly, the MOA-AD explicitly alludes to this concept, indicating
that the Parties actually framed its provisions with it in mind.

The nature of the "associative" relationship may have been intended

to be defined more precisely in the still to be forged Comprehensive
Compact. Nonetheless, given that there is a concept of "association"
in international law, and the MOA-AD - by its inclusion of international
law instruments in its TOR- placed itself in an international legal
context, that concept of association may be brought to bear in
understanding the use of the term "associative" in the MOA-AD.

Keitner and Reisman state that an association is formed when two

states of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its
international status as a state. Free associations represent a middle
ground between integration and independence.

These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or, at
any rate, a status closely approximating it. But the problem is that the

29
concept of association is not recognized under the present
Constitution

No province, city, or municipality, not even the ARMM, is recognized

under our laws as having an "associative" relationship with the
national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not contemplate
any state in this jurisdiction other than the Philippine State, much less
does it provide for a transitory status that aims to prepare any part of
Philippine territory for independence.

Regarding Article II, Section 2 of the Constitution states that the

Philippines "adopts the generally accepted principles of international
law as part of the law of the land, the Supreme Court then cited
different international law. International law has long recognized the
right to self-determination of "peoples," understood not merely as
the entire population of a State but also a portion thereof. It. had
occasion to acknowledge that "the right of a people to self-
determination is now so widely recognized in international
conventions that the principle has acquired a status beyond
‘convention' and is considered a general principle of international
law."

Among the conventions referred to are the International Covenant on

Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights which state, in Article 1 of both covenants,
that all peoples, by virtue of the right of self-determination, "freely
determine their political status and freely pursue their economic,
social, and cultural development."

The people's right to self-determination should not, however, be

understood as extending to a unilateral right of secession. A
distinction should be made between the right of internal and external
self-determination.

30
The recognized sources of international law establish that the right to
self-determination of a people is normally fulfilled through internal
self-determination - a people's pursuit of its political, economic, social
and cultural development within the framework of an existing state. A
right to external self-determination (which in this case potentially
takes the form of the assertion of a right to unilateral secession)
arises in only the most extreme of cases and, even then, under
carefully defined circumstances.

As with the broader category of "peoples," indigenous peoples

situated within states do not have a general right to independence or
secession from those states under international law, but they do have
rights amounting to what was discussed above as the right to internal
self-determination.

UN General Assembly adopted the United Nations Declaration on the

Rights of Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295. The vote was 143 to 4, the Philippines being
included among those in favor, and the four voting against being
Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination,
encompassing the right to autonomy or self-government,

Regardless of the different international law that was discussed, the

Supreme Court held that
Even if the United Nations Declaration on the Rights of Indigenous
Peoples were considered as part of the law of the land pursuant to
Article II, Section 2 of the Constitution, it would not suffice to uphold
the validity of the MOA-AD so as to render its compliance with other
laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions

that cannot be reconciled with the Constitution and the laws as
presently worded.

Concerns have been raised that the MOA-AD would have given rise to
a binding international law obligation on the part of the Philippines to

31
change its Constitution in conformity thereto, on the ground that it
may be considered either as a binding agreement under international
law, or a unilateral declaration of the Philippine government to the
international community that it would grant to the Bangsamoro
people all the concessions therein stated. Neither ground finds
sufficient support in international law.

While the MOA-AD would not amount to an international agreement

or unilateral declaration binding on the Philippines under international
law, respondents' act of guaranteeing amendments is, by itself,
already a constitutional violation that renders the MOA-AD fatally
defective.

The MOA-AD cannot be reconciled with the present Constitution and

laws. Not only its specific provisions but the very concept underlying
them, namely, the associative relationship envisioned between the
GRP and the BJE, are unconstitutional, for the concept presupposes
that the associated entity is a state and implies that the same is on its
way to independence.

While there is a clause in the MOA-AD stating that the provisions

thereof inconsistent with the present legal framework will not be
effective until that framework is amended, the same does not cure its
defect. The inclusion of provisions in the MOA-AD establishing an
associative relationship between the BJE and the Central Government
is, itself, a violation of the Memorandum of Instructions From The
President dated March 1, 2001, addressed to the government peace
panel. Moreover, as the clause is worded, it virtually guarantees that
the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the
President herself is authorized to make such a guarantee. Upholding
such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of
initiative, for the only way that the Executive can ensure the outcome
of the amendment process is through an undue influence or
interference with that process.

32
 While the MOA-AD would not amount to an international agreement
or unilateral declaration binding on the Philippines under international
law, respondents' act of guaranteeing amendments is, by itself,
already a constitutional violation that renders the MOA-AD fatally
defective.

f) Ang LADLAD LGBT Party v. COMELEC, G.R. No. 190582, 618 SCRA 32, 8
April 2010

Facts: The case has its roots in the COMELEC’s refusal to accredit Ang
Ladlad as a party-list organization under Republic Act (RA) No. 7941,
otherwise known as the Party-List System Act.

Ang Ladlad is an organization composed of men and women who

identify themselves as lesbians, gays, bisexuals, or trans-gendered
individuals. Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for
accreditation was denied on the ground that the organization had no
substantial membership base. On August 17, 2009, Ang Ladlad again
filed a Petition for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and
violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation.

Issue: Whether the Commission on Elections’ refusal to register Ang

Ladlad violated the right of the organisation and its members to
freedom of association, freedom of expression, and political
participation?

Ruling: Yes. The Court ruled that international law required the
Commission on Elections to recognise Ang Ladlad. According to the
Human Rights Committee’s decision in Toonen v. Australia, Article 26
of the ICCPR prohibited discrimination based on sex, including sexual

33
 orientation. Reading the right to participate in government under
Article 21 of the UDHR in light of Toonen, the Court held that
international law protected the right of LGBT organisations to
participate in the political process and that the Commission on
Elections’ decision contravened that right.

In an age that has seen international law evolve geometrically in

scope and promise, international human rights law, in particular, has
grown dynamically in its attempt to bring about a more just and
humane world order. For individuals and groups struggling with
inadequate structural and governmental support, international
human rights norms are particularly significant, and should be
effectively enforced in domestic legal systems so that such norms may
become actual, rather than ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations

to protect and promote human rights. In particular, we explicitly
recognize the principle of non-discrimination as it relates to the right
to electoral participation, enunciated in the UDHR and the ICCPR.

C) SUBJECTS OF INTERNATIONAL LAW

1) States
There are various situations when the question of statehood arises.
Examples are when a portion of a territory has seceded, or when there is
foreign control over the affairs of an entity which claims to be a state, or
when states have formed a union but continue to retain some autonomy,
and when individual members of a federation claim statehood.

a) Article 1, 1933 Montevideo Convention

The traditional statement of the characteristics which make an entity
a state is found in the Montevideo Convention of 1933 on Rights and
Duties of States: “The state as a person of international law should
possess the following qualifications: (a) a permanent population; (b) a
defined territory; (c) government; (d) the capacity to enter into
relations with other States.”

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 Hence, the definition of the concept “state” which has found currency
among Philippine writers is this: it is a community of persons more or
less numerous, permanently occupying a definite portion of territory,
independent of external control, and possessing an organized
government to which the great body of inhabitants render habitual
obedience.

b) Elements
Commentators, following the Montevideo Convention, break down
the concept into four elements: people, territory, government, and
sovereignty.

People or Population
As an element of a state, “people” simply means 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. It is of no legal consequence if they possess
diverse racial, cultural, or economic interests. Nor is a minimum
population required.

Territory
A definite territory over which an entity exercises permanent
sovereignty is another element of a state. But as the Restatement
(Third) on the Foreign Relations Law of the United States explains:
“An entity may satisfy the territorial requirement for statehood even
if its boundaries have not been finally settled, if one or more of its
boundaries are disputed, or if some of its territory is claimed by
another state. An entity does not necessarily cease to be a state even
if all its territory has been occupied by a foreign power or if it has
otherwise lost control of its territory temporarily.”

Government
Government, as an element of a state, is defined as “that institution
or
aggregate of institutions by which an independent society makes and
carries out those rules of action which are necessary to enable men to

35
live in a social state, or which are imposed upon the people forming
that society by those who possess the power or authority of
prescribing them.” International law does not specify what form a
government should have. Moreover, for purposes of international
law, it is the national government that has legal personality and it is
the national government that is internationally responsible for the
actions of other agencies and instrumentalities of the state. Finally, a
temporary absence of government, for instance during an occupation
by a foreign power, does not terminate the existence of a state.

Sovereignty
Sovereignty means independence from outside control. The
Montevideo Convention expresses this in positive terms as including
“the capacity to enter into relations with other States.” This latter
element of sovereignty, however, is dependent on recognition. An
entity may in fact possess all the elements of a state but if one or
more states do not extend recognition to it, the entity would not be
able to establish relations with those states. Incidentally, although the
Philippines was not yet an independent state in 1945, it was accepted
as one of the original signatories of the United Nations Charter.

Sovereignty as an element of a state is related to but not identical

with the broader concept of the right of self-determination. In the
post- World War II era, there have arisen numerous new states. The
impetus behind the birth of new states is the principle of self-
determination of peoples. Both the International Covenant on Civil
and Political Rights and the International Covenant on Economic,
Social, and Cultural Rights assert the principle of self determination of
people in identical
language: “All peoples have the right of self-determination.

By virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.” This
principle has been affirmed and reaffirmed by various documents of
the United Nations, notably the Declaration on the Granting of
Independence to Colonial Countries and Peoples (1960) and the
Declaration on Principles of International Law concerning Friendly

36
 Relations and Cooperation among States in accordance with the
Charter of the United Nations. (1970).

c) Creation

Creation of States
The process of creating new states is a mixture of fact and law,
involving the establishment of particular factual conditions and
compliance with relevant rules. The accepted criteria of statehood
were laid down in the Montevideo Convention (1933), which provided
that a state must possess a permanent population, a defined territory,
a government, and the capacity to conduct international relations.

The need for a permanent population and a defined territory is clear,

though boundary disputes—e.g., those concerning Albania after
World War I and Israel in 1948—do not preclude statehood. The
international community (including the UN) has recognized some
states while they were embroiled in a civil war (e.g., the Congo in 1960
and Angola in 1975), thus eroding the effective-government criterion.
Croatia and Bosnia and Herzegovina were also recognized as new
states by much of the international community in 1992, though at the
time neither was able to exercise any effective control over significant
parts of its territory. Although independence is required, it need not
be more than formal constitutional independence.

States may become extinct through merger (North and South Yemen
in 1990), absorption (the accession of the Länder [states] of the
German Democratic Republic into the Federal Republic of Germany in
1990), dissolution and reestablishment as new and separate states
(the creation of separate Czech and Slovak republics from
Czechoslovakia in 1993), limited dismemberment with a territorially
smaller state continuing the identity of the larger state coupled with
the emergence of new states from part of the territory of the latter
(the Soviet Union in 1991), or, historically, annexation (Nazi Germany’s
Anschluss of Austria in 1938).

Recognition of States

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Recognition is a process whereby certain facts are accepted and
endowed with a certain legal status, such as statehood, sovereignty
over newly acquired territory, or the international effects of the grant
of nationality. The process of recognizing as a state a new entity that
conforms with the criteria of statehood is a political one, each country
deciding for itself whether to extend such acknowledgment. Normal
sovereign and diplomatic immunities are generally extended only
after a state’s executive authority has formally recognized another
state (see diplomatic immunity). International recognition is
important evidence that the factual criteria of statehood actually have
been fulfilled. A large number of recognitions may buttress a claim to
statehood even in circumstances where the conditions for statehood
have been fulfilled imperfectly (e.g., Bosnia and Herzegovina in 1992).
According to the “declaratory” theory of recognition, which is
supported by international practice, the act of recognition signifies no
more than the acceptance of an already-existing factual situation—
i.e., conformity with the criteria of statehood. The “constitutive”
theory, in contrast, contends that the act of recognition itself actually
creates the state.

Before granting recognition, states may require the fulfillment of

additional conditions. The European Community (ultimately
succeeded by the EU), for example, issued declarations in 1991 on the
new states that were then forming in eastern Europe, the former
Soviet Union, and Yugoslavia that required, inter alia, respect for
minority rights, the inviolability of frontiers, and commitments to
disarmament and nuclear nonproliferation.

The timing of any recognition is crucial—particularly when a new state

has been formed partly from an existing one. Premature recognition
in a case of secession can amount to intervention in a state’s internal
affairs, a violation of one of the fundamental principles of
international law. Recognition of governments is distinguished from
the recognition of a state. The contemporary trend is in fact no longer
to recognize governments formally but to focus instead upon the
continuation (or discontinuation) of diplomatic relations. By this
change, states seek to avoid the political difficulties involved in

38
 deciding whether or not to “recognize” new regimes taking power by
nonconstitutional means.

Although states are not obliged to recognize new claimants to

statehood, circumstances sometimes arise that make it a positive duty
not to recognize a state. During the 1930s, U.S. Secretary of State
Henry Stimson propounded the doctrine of the nonrecognition of
situations created as a result of aggression, an approach that has
been reinforced since the end of World War II. In the 1960s, the UN
Security Council “called upon” all states not to recognize the
Rhodesian white-minority regime’s declaration of independence and
imposed economic sanctions. Similar international action was taken in
the 1970s and ’80s in response to South Africa’s creation of
Bantustans, or homelands, which were territories that the white-
minority government designated as “independent states” as part of
its policy of apartheid. The Security Council also pronounced the
purported independence of Turkish-occupied northern Cyprus as
“legally invalid” (1983) and declared “null and void” Iraq’s annexation
of Kuwait (1990). The UN also has declared that Israel’s purported
annexation of the Golan Heights (conquered from Syria in 1967) is
invalid and has ruled similarly with regard to Israel’s extension of its
jurisdiction to formerly Jordanian-controlled East Jerusalem.

d) Classes

Sovereign States
A sovereign state, also known as sovereign country, is a political entity
represented by one centralized government that has sovereignty over
a geographic area. International law defines sovereign states as
having a permanent population, defined territory, one government,
and the capacity to enter into relations with other sovereign states. It
is also normally understood that a sovereign state is independent.
According to the declarative theory of statehood, a sovereign state
can exist without being recognized by other sovereign states.
Unrecognized states will often find it difficult to exercise full treaty-
making powers or engage in diplomatic relations with other sovereign
states.

39
 Non-sovereign States
This includes:
a) A previously independent state, representing those nations which
were independent and are subsumed into transnational states like
the United Kingdom with constituent countries.
b) Active autonomist and secessionist movement, representing those
nations which are currently part of a transnational state but would
like to secede from the state.
c) A dependent territory, a territory which often has a high degree of
self-governance, but which is governed by another "parent" state.
It often has cultural and historical ties to, and relies on, the parent
state for defense.

Non-Typical States
A few states which are though sovereign, are not like sovereign states
is consider as Non typical states. Holy see- The term Holy see is used
the supreme organ of the Catholic Church, i.e Bishop of Rome. Vatican
city is example of Vatican city.

2) Vatican City
In 1929, the Lateran Treaty was signed with Italy which recognized the
state of the Vatican City and “the sovereignty of the Holy See in the
field of international relations as an attribute that pertains to the very
nature of the Holy See, in conformity with its traditions and the
demands of its mission in the world.” It has no permanent population.

a) Holy See v. Rosario, G.R. No. 101949, 1 December 1994

Facts: Petitioner is the Holy See who exercises sovereignty over the
Vatican City in Rome, Italy, and is represented in the Philippines by the
Papal Nuncio; Private respondent, Starbright Sales Enterprises, Inc., is
a domestic corporation engaged in the real estate business. This
petition arose from a controversy over a parcel of land consisting of
6,000 square meters located in the Municipality of Paranaque
registered in the name of petitioner. Said lot was contiguous with two

40
other lots registered in the name of the Philippine Realty Corporation
(PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A.
Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned his
rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to

private respondent, a dispute arose as to who of the parties has the
responsibility of evicting and clearing the land of squatters.
Complicating the relations of the parties was the sale by petitioner of
Lot 5-A to Tropicana Properties and Development Corporation
(Tropicana).

private respondent filed a complaint with the Regional Trial Court,

Branch 61, Makati, Metro Manila for annulment of the sale of the
three parcels of land, and specific performance and damages against
petitioner, represented by the Papal Nuncio, and three other
defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and
Tropicana

petitioner and Msgr. Cirilos separately moved to dismiss the

complaint — petitioner for lack of jurisdiction based on sovereign
immunity from suit, and Msgr. Cirilos for being an improper party. An
opposition to the motion was filed by private respondent.

the trial court issued an order denying, among others, petitioner’s

motion to dismiss after finding that petitioner “shed off [its]
sovereign immunity by entering into the business contract in
question” Petitioner forthwith elevated the matter to us. In its
petition, petitioner invokes the privilege of sovereign immunity only
on its own behalf and on behalf of its official representative, the Papal
Nuncio.

Issue: Whether the Holy See is immune from suit insofar as its
business relations regarding selling a lot to a private entity?

Ruling: The Republic of the Philippines has accorded the Holy See the
status of a foreign sovereign. The Holy See, through its Ambassador,

41
the Papal Nuncio, has had diplomatic representations with the
Philippine government since 1957. This appears to be the universal
practice in international relations.

There are two conflicting concepts of sovereign immunity, each

widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure gestionis
If the act is in pursuit of a sovereign activity, or an incident thereof,
then it is an act jure imperii, especially when it is not undertaken for
gain or profit.

In the case at bench, if petitioner has bought and sold lands in the
ordinary course of a real estate business, surely the said transaction
can be categorized as an act jure gestionis. However, petitioner has
denied that the acquisition and subsequent disposal of Lot 5-A were
made for profit but claimed that it acquired said property for the site
of its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese

of Manila. The donation was made not for commercial purpose, but
for the use of petitioner to construct thereon the official place of
residence of the Papal Nuncio. The right of a foreign sovereign to
acquire property, real or personal, in a receiving state, necessary for
the creation and maintenance of its diplomatic mission, is recognized
in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22).
This treaty was concurred in by the Philippine Senate and entered into
force in the Philippines on November 15, 1965.

The decision to transfer the property and the subsequent disposal

thereof are likewise clothed with a governmental character. Petitioner
did not sell Lot 5-A for profit or gain. It merely wanted to dispose off
the same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the donation.

42
 The fact that squatters have occupied and are still occupying the lot,
and that they stubbornly refuse to leave the premises, has been
admitted by private respondent in its complaint, Private respondent is
not left without any legal remedy for the redress of its grievances.
Under both Public International Law and Transnational Law, a person
who feels aggrieved by the acts of a foreign sovereign can ask his own
government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the

Foreign Office, to espouse its claims against the Holy See. Its first task
is to persuade the Philippine government to take up with the Holy See
the validity of its claims. Of course, the Foreign Office shall first make
a determination of the impact of its espousal on the relations
between the Philippine government and the Holy See (Young,
Remedies of Private Claimants Against Foreign States, Selected
Readings on Protection by Law of Private Foreign Investments 905,
919 [1964]). Once the Philippine government decides to espouse the
claim, the latter ceases to be a private cause.

3) Colonies and dependencies

A dependent territory, dependent area, or dependency (sometimes
referred as an external territory) is a territory that does not possess full
political independence or sovereignty as a sovereign state yet remains
politically outside the controlling state's integral area.

4) Territories under International Control or Supervision

The trusteeship system, like the mandate system, was established on the
premise that colonial territories taken from countries defeated in war
should not be annexed by the victorious powers but should be
administered by a trust country under international supervision until
their future status was determined.

5) The United Nations

The principal international organization is the United Nations. It came
into being on October 24,1945, when the UN Charter came into force.
The membership now includes almost all the world’s independent
nations.

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a) The United Nations Charter
The Charter of the United Nations is the founding document of the
United Nations. The UN Charter codifies the major principles of
international relations, from sovereign equality of States to the
prohibition of the use of force in international relations.

b) Membership

Rule 134. Application

Any State which desires to become a Member of the United Nations
shall submit an application to the Secretary-General. Such application
shall contain a declaration, made in a formal instrument, that the
State in question accepts the obligations contained in the Charter.

Rule 135. Notification of applications

The Secretary-General shall, for information, send a copy of the
application to the General Assembly, or to the Members of the
United Nations if the Assembly is not in session.

Rule 136. Consideration of applications and decision thereon

If the Security Council recommends the applicant State for
membership, the General Assembly shall consider whether the
applicant is a peace-loving State and is able and willing to carry out
the obligations contained in the Charter and shall decide, by a two-
thirds majority of the members present and voting, upon its
application for membership.

Rule 137. Consideration of applications and decision thereon

If the Security Council does not recommend the applicant State for
membership or postpones the consideration of the application, the
General Assembly may, after full consideration of the special report
of the Security Council, send the application back to the Council,
together with a full record of the discussion in the Assembly, for
further consideration and recommendation or report.

Rule 138. Notification of decision and effective date of membership

44
 The Secretary-General shall inform the applicant State of the decision
of the General Assembly. If the application is approved, membership
shall become effective on the date on which the General Assembly
takes its decision on the application.

c) Organs
The United Nations has six principal organs: the General Assembly,
the Security Council, the Economic and Social Council, the Trusteeship
Council, the International Court of Justice, and the Secretariat.

General Assembly
The only body in which all UN members are represented, the General
Assembly exercises deliberative, supervisory, financial, and elective
functions relating to any matter within the scope of the UN Charter.
Its primary role, however, is to discuss issues and make
recommendations, though it has no power to enforce its resolutions
or to compel state action. Other functions include admitting new
members; selecting members of the Economic and Social Council, the
nonpermanent members of the Security Council, and the Trusteeship
Council; supervising the activities of the other UN organs, from which
the Assembly receives reports; and participating in the election of
judges to the International Court of Justice and the selection of the
secretary-general. Decisions usually are reached by a simple majority
vote. On important questions, however—such as the admission of
new members, budgetary matters, and peace and security issues—a
two-thirds majority is required.

Security Council
The UN Charter assigns to the Security Council primary responsibility
for the maintenance of international peace and security. The Security
Council originally consisted of 11 members—five permanent and six
nonpermanent—elected by the General Assembly for two-year
terms. From the beginning, nonpermanent members of the Security
Council were elected to give representation to certain regions or
groups of states. As membership increased, however, this practice
ran into difficulty. An amendment to the UN Charter in 1965 increased
the council’s membership to 15, including the original five permanent

45
members plus 10 nonpermanent members. Among the permanent
members, the People’s Republic of China replaced the Republic of
China (Taiwan) in 1971, and the Russian Federation succeeded the
Soviet Union in 1991. After the unification of Germany, debate over
the council’s composition again arose, and Germany, India, and Japan
each applied for permanent council seats.

Economic and Social Council

Designed to be the UN’s main venue for the discussion of
international economic and social issues, the Economic and Social
Council (ECOSOC) directs and coordinates the economic, social,
humanitarian, and cultural activities of the UN and its specialized
agencies. Established by the UN Charter, ECOSOC is empowered to
recommend international action on economic and social issues;
promote universal respect for human rights; and work for global
cooperation on health, education, and cultural and related areas.
ECOSOC conducts studies; formulates resolutions, recommendations,
and conventions for consideration by the General Assembly; and
coordinates the activities of various UN programs and specialized
agencies. Most of ECOSOC’s work is performed in functional
commissions on topics such as human rights, narcotics, population,
social development, statistics, the status of women, and science and
technology; the council also oversees regional commissions for
Europe, Asia and the Pacific, Western Asia, Latin America, and Africa.

Trusteeship Council
The Trusteeship Council was designed to supervise the government
of trust territories and to lead them to self-government or
independence. The trusteeship system, like the mandate system
under the League of Nations, was established on the premise that
colonial territories taken from countries defeated in war should not
be annexed by the victorious powers but should be administered by a
trust country under international supervision until their future status
was determined. Unlike the mandate system, the trusteeship system
invited petitions from trust territories on their independence and
required periodic international missions to the territories. In 1945 only
12 League of Nations mandates remained: Nauru, New Guinea,

46
 Ruanda-Urundi, Togoland and Cameroon (French administered),
Togoland and Cameroon (British administered), the Pacific Islands
(Carolines, Marshalls, and Marianas), Western Samoa, South West
Africa, Tanganyika, and Palestine. All these mandates became trust
territories except South West Africa (now Namibia), which South
Africa refused to enter into the trusteeship system.

International Court of Justice

The International Court of Justice, commonly known as the World
Court, is the principal judicial organ of the United Nations, though the
court’s origins predate the League of Nations. The idea for the
creation of an international court to arbitrate international disputes
arose during an international conference held at The Hague in 1899.
This institution was subsumed under the League of Nations in 1919 as
the Permanent Court of International Justice (PCIJ) and adopted its
present name with the founding of the UN in 1945.

Secretariat
The secretary-general, the principal administrative officer of the
United Nations, is elected for a five-year renewable term by a two-
thirds vote of the General Assembly and by the recommendation of
the Security Council and the approval of its permanent members.
Secretaries-general usually have come from small, neutral countries.
The secretary-general serves as the chief administrative officer at all
meetings and carries out any functions that those organs entrust to
the Secretariat; he also oversees the preparation of the UN’s budget.
The secretary-general has important political functions, being
charged with bringing before the organization any matter that
threatens international peace and security.

6) Belligerent communities
Insurgent groups which satisfy the material field of application of
Protocol II may be regarded as “para-statal entities possessing definite if
limited form of international personality.” State practice indicates two
specific attributes of such “personality.” First, they are recognized as
having belligerent status against the de jure government. Other states

47
 are therefore required to maintain neutrality regarding them. Second,
they are seen as having treaty making capacity.

7) International administrative bodies

Aside from the main organs of the UN, there are also specialized
agencies. Some of these are: the United Nations Educational, Scientific
and Cultural Organization (UNESCO). The International Civil Aviation
Organization (ICAO), the World Health Organization (WHO), the Food
and Agricultural Organization (FAO), the World Bank and the
International Monetary Fund (IMF).

a) Reparation Suffered in the Service of the United Nations (1949)

Because of the assassination in September 1948, in Jerusalem, of

Count Folke Bernadotte, the United Nations Mediator in Palestine,
and other members of the United Nations Mission to Palestine, the
General Assembly asked the Court whether the United Nations had
the capacity to bring an international claim against the State
responsible with a view to obtaining reparation for damage caused to
the Organization and to the victim. If this question were answered in
the affirmative, it was further asked in what manner the action taken
by the United Nations could be reconciled with such rights as might
be possessed by the State of which the victim was a national. In its
Advisory Opinion of 11 April 1949, the Court held that the Organization
was intended to exercise functions and rights which could only be
explained on the basis of the possession of a large measure of
international personality and the capacity to operate upon the
international plane. It followed that the Organization had the capacity
to bring a claim and to give it the character of an international action
for reparation for the damage that had been caused to it. The Court
further declared that the Organization can claim reparation not only in
respect of damage caused to itself, but also in respect of damage
suffered by the victim or persons entitled through him. Although,
according to the traditional rule, diplomatic protection had to be
exercised by the national State, the Organization should be regarded
in international law as possessing the powers which, even if they are
not expressly stated in the Charter, are conferred upon the

48
 Organization as being essential to the discharge of its functions. The
Organization may require to entrust its agents with important
missions in disturbed parts of the world. In such cases, it is necessary
that the agents should receive suitable support and protection. The
Court therefore found that the Organization has the capacity to claim
appropriate reparation, including also reparation for damage suffered
by the victim or by persons entitled through him. The risk of possible
competition between the Organization and the victim’s national State
could be eliminated either by means of a general convention or by a
particular agreement in any individual case.

8) Individuals
In the early development of international law human beings were
exclusively under the control of states. In international law they were
objects or at best “beneficiaries” of international law. With the greater
global awareness of human rights individuals have now come to be
recognized as possessing albeit limited rights and obligations in
international law.

Among the obligations of individuals are those arising from the

regulation of armed conflicts. Violation of these rules can place
individuals under criminal responsibility. There are also rules on
international crimes to which individuals are subject such as crimes
against humanity, genocide, aggression, and terrorism.
When individual rights are violated, however, individuals still have to rely
on the enforcement power of states. But some treaties have provided
for the right of individuals to petition international bodies alleging that a
contracting state has violated some of their human rights.

49