A. International Law Defined. |. GENERAL PRINCIPLES ‘Origins The neectalorgns of ‘incomcurently nth the development Inia, Mog Grotus and Albene Cnn, both of competent elope Sfnrecterzed international law a inne Beeakthrouah, the cacy 19h cetary, Tie Napeleont’ wars, tie frst major peace summa tonic place (Congress of Vienna I81413), lowed ty ti cxiy vetone of ered imperaittreatee teding those emabiahing res for the navgxton fi cvers (1815) those exabishing the ‘neatly ‘f Sniaeland (i831) and Belg {0899), the Bes Scited ion marine warn (Declaration of Pare, 185), ands mach inter the Kelogs Brian Past (928) shiek sought to limit o abolish war. Notably. these Jeary alg saw the creation ofan cay amework of ‘ice repuding the recognition of States, and’ State respon ‘Terminology. Te tm international tne was Set ‘Efile by Jeremy Bentham in 1870" fe 9 Bentham, Introduction tothe Pines of Moras and Tegan 1791 “Traditional Definition. Tt branch of pubic tw ‘Fhuh replates the eatons of States and of other Chute “which have been” pantediterntonal fersonaliy, [This defitionfctes on subject which re emtcs that pense toternationa personaly Sind have rite and obligations. recognized under International nw, as agains objets, which are persons ‘or things in respec of which Wghts are2 ome Be oe nie va mt ere he sei ee Seamer teat coi eee te ean cn, re ee an a eR oe ear win we se rata ames me: eo See poi tere eens ie 3. Basis of temational Lew, 1 ‘There is @ natural and mal mine of right and wrong, independent mal inform an allen arrested local of ‘ight under international law) Law. ae Sane law (etare decisis) omg ce iri ec es eee en ae from formal sources insofar Le i amo tee ht ae Sour aw he State Pt Bee ooo ean be considered as the mal Tange of possible sources i ‘ ‘the most authoritative eoumey cat 38, Statute of the Interne ‘ue en Js to decide in accordance with International Law such disputes as are submitted to, shall apply: ‘2 Brimary Sources: International Treaties and Conventions, whether {general or particular, establishing rules expressly ‘ecognized by the contesting States, 4. Treaties may codify, crystallize, of create obligations. CediBcaton is done where the {reaty merely complles existing obligations to facitate simplicity, asin the case of the 1982 UNCLOS. Crystallization is done to formalize as an obligation existing” State practice, a in the care of the 1958 Geneva Continental Shelf Convention. Creation it done where the tracy itself is the frst time ‘wherein such obligation was created between the parties, as is usually the case in bilateral ‘wade agreements, fi, Treaties, just like domestic law, are governed ty the rules om Ler Posterior aad Lex Specials. Lex posterior provides that later treaty overrides prior treaty in Case of ‘incompatibility, while ler speciale that a move specibe treaty sould be flowed ‘fin conflict with a more general treaty Treaties may be bilateral or multilateral, depending on how mary partes are involved, Multilateral’ treaties are’ sstally general ih ‘nature and establish common principles of law, while bilateral treaties are sully for the regulation of particular conduct such as trade. jv. Law between the parties, Regardless of how ‘many States are inwoived, it must alwaye be Femembered that a treaty becomes the law between the parties who gave their consent thereto. Although there’ are instances where States who do-not give their consent fre bound by treaties, such a situations ‘wherein a treaty is merely meant to codify tiRie stil stands that Statce are othe treaties they gave their consey ‘only t0 the extent by which th themselves to be bound. fas evidence of a gene ecepted as binding law thraup, "usage over a Jong period of time, eg, ‘of unarmed fishing ead secesuary, however, habe Peed onc consecrate pot In the Asylum Case (1950, ‘Rep 266, the ICJ held that custom is fs constant and uniform usage, ‘sli’, et Seay. Custom may be general of, <6 “neither case, the elements of cust and be proven. See: Asylit ‘where the Court ruled that al! stom can exst, he same ™g be proven; Fight of Passages oy Ted tep‘o|, where the the possiblity of a regions denied Portugal's claim since that such a custom existed ements. The two main elemento ‘ome ed sane eo | idence of Custom. According to Brownlie, custom can be proven using a wide range bf instruments Including diplomatic corre- Spondence, press releases, opinion of ofi- al legal advisers, executive decisions and Practices, judiial decisions, legislation, and Teaolitiont of the United Nations. General Assembly, among others. Although a large Inamber of States performing the same con fluct may create a presumption that there isin fact custom in existence, auch « pee Sumption isnot conclusive and may be re- Dated with @ wide range of evidence. (See: ‘3 Crawford, Brownli’s Principles of Public Intemational Low, 2012) 8) The Baster Prados: Under the Baxter Parador, named ater Profesor RR, Banter, tr tcved tha an more and toe Sate subvebe to a eng, te Understanding ofthe contemporary fan ofeusforsary internation I wel deeense beontse the tons of Stten ae ready express ged by areal obligation Under the Weay and form mere seine ons: Thum [ater pois tha ft teay Become fo popular anton havea hana of Gee cen oft ons tame States woul be the only one cape of Eenerating cto, tut simaanely {hetrineLappenr tobe Hecalan-ance cstocr regres wide and sch tre general application or observance Foot Sate Pace. State practice consiats not iy ehat Sats sy So bu ala of what thoy fat ny do. Aa mentioned carer ‘State pace has thre sub elements which fe meneralay, uoormiy, and” dorsi {See oh So Continental Shei Case 1909 Uniformity. According 0 the Nicaragua . Case 1986, although uniformity is— » a 4 ‘sre required, absolute uniformity by ay Sherk not As nich, mule sary fe rc SCominewet Shey Case 195 cay hiormiy not required proved tar practices of the States are ena SSofuruly form with one ane {hoo ber Anglo Nontepian Phe tase 19510081) 1) Rep 116, whee Sec) led that some dope d Xiormiy amongst State practices veal before a custom can ex CGeneralty. Given that a custom ex be either general or regional, te practice under consideration must be Tridespread among the States that a particularly involved in the relent Setity, Thus, universality of « EN practice is not a requirement, Be ‘Asylum Case 1950) Duration. Although the length of ting ‘aud fra racic Ste practic varies from to situation, the Ic) in the Roth Se Continental Shelf Case (1969 et Sha the time period ult ough show that other esate Intan Custom, arthouse ve been arping for the os an instant custom, especialy ig, aftermath of the 9/11 ter hs the ruin the IC am Eine St Case 19 controlling insofar 38 it hate engi of time, reeardes ‘short, within which the Othe? © po9 ‘of uniformity and generality 8° yf to exist, must still take PICT ‘go 5 prance can enstalle vette A Opinio Juris. Recording to the Lomus Case (1927) PCL Series A,'No. 10}, opinio juris Constitutes a States belie that Wt acting ‘due toa legal obligation, The fact that a Sta cting In accordance with epinio juris ‘ever presumed and must alway be proven, Legal Conundrum. Should opinio. juris precede State practice or should it already be present when the practice is performed? Although this question has not: yet been formally resolved, it must neverteess, be understood that custom can only arise once both elements concur. Persistent Objecor. The mere existence of a custom may not necessary be enough to Bind Sates, pariculrty those who quelly as persistent objectors: Following the Angle onweyan Fishes Case 1931 persistent objector tone whe ejects to the pret: fom the early stages ofthe practice and ‘alta the ba json consistent Exception to Persistent Objector. As an taxcepion, mere objection at the begin 4s not enough for a State to claim it is a Persistent objectors State caviot cli to Ber persistent objector when the practi ring objected to anata ated the stants of ja agen elaonship between Treaty and Custom General there He confit Benncee lwealy and a custom, a tealy is superon ‘The exception to ths rule ii the castooh involved in fs eagens Also, a treaty many create cnt provded was intended norn-creaing anda Stat may be based by both a tea and a custom at the see time insofar as they do oot cont with cock ‘ther. (See: Marth Seu Continental Sha Cae 1969, where the IC) examined wheter she uidistant principle contained tn the 1968,on the Continental me custom: Moun, where the ICJ ruled that ae fem claim seeking relief based oy fl custom: Fisheries Justin 974) IC) Rep 3, where the IC ruled was stil bound by a treaty it ‘signed despite the emergence ‘among States provided the in the treaty had not radical ‘These are rile sapped by the Cour eae fine alminitative ae requ (early warning device, as part of the ‘on Road Signs and Signals. General. principles of iw flaw tat ave ao fan they are found in almost iy. general principles {ea separate source of law from both He (© Pupose. General. principles of 1 88. @ source of law i” he’ problem of non-liguet mance of any source of law of bl Point to in order to resolve He auch, even absent a particulat Gaon, the Court may” not dy to decide a case since it 8 ‘Me onthe matter on the basis Although itis unclear what th feneral principles of 2% Of the 1CJ seem to leat general principles of aw encompassing both private law and public law concepts. See ‘dvisony Opinion on the Effect of Awards of Compensation Made by the United ations ‘Administrative Tribunal 1954) IC Rep 47), ‘where the ICJ acknowledged the principle (of res judicata; Temple of Preah Vihear Case [n962} 165 Rep 6) where the ICJ used the principle of estoppel in finding Thailand to Ihave recognised Cambodia's sovereignty lover disputed territory; Corfu Channel Case [(1945) 1c Rep 4], where circumstantial evidence, in the absence of direst evidence, twas used to ascertain whether or not Albania twas lable for the sinking of British ships: ‘Status of Easter Carela Case (1923) POU. Series B no. 5), where the PCLI ruled that It could not rule on the matter because it didnot have jurisdiction over Russia who ‘was the respondent; Chersow Factory Case {0927} PCW Series A, No. 9), where the PCI used the principle that taking requires compensation to be valid when it decided a taseinvelving damages: The Separate Opinion of Justice MeNatr inthe Advisory Opinion on the Intemational Status of the South West ‘Africa 1950 (1950) 103 Rep 128), where the ‘general principle of trusts was discussed in Felaton to the advisory opinion: LIAMCO v. {bya 1981 (20 ILM! 1) where the general Principle of equity was sed in determining, the amount of damages [mote: To these may be added the Principle of ex aoquo et bono (hat is good And jst), provided that the parties to the dispute agree thereto, as provided in Are '38(i), Statute of the Intemational Court of Sstice. This must not, however, be confused With the principle of equity since equity = 2 part of the judicial function and ean be fpplied at any time, whereas the panciple of ex aequo et bane, which considers only7 jon TO PUBLIC om TONAL mi and political considera eee appled hen soked Tor hy tg ares ps Ssoniac Sause ss a mal + tats Deen asthe being te teal Court of Justice. They ae not realy Wn -scbsidiry means” for finding what ‘ust and whether a norm has been accepted {tea af inernational la. The decision of ¢ 1 Lafautt may be used depending upon the ‘pean perceived impartiality ofthe domestic Pat beng in confit with the decisions of ‘Gernaonaltnbuna, and its admissibility fhe bru whee tis cited iL Aindng Effet. Following Article $9 of te ied Statute the decisions ofthe 1CJ have ne Tending effect except as to the State partie lndnly in respect ofthat particular ess. 4 deel Lagilation. Despite res jut ‘eg gency inapplicae with ees {ce by nternatonal tribunals, ne ‘hich the tbunal adopts, wher the se iSaused on any exiting reat the {Xe deenon, emu by auch decon th bun ~ a new, provisional ral De ‘wed (See Anglo nonvegian eter Nios ateines were based mH ‘ston and economic considerations than a femal source of international at Bearatns Cae 0940) TC Re TA ice the [C3 created the guidelines © sed by the United Nations in preses ttematonal cies conan both eat {nd non-members of the UN, i Oe ‘ec reparations for damages suai ‘Re UN or any oft agents ‘a eit and Custom. WE Sl legislation eocura, and is bast # a practice of States, does this mean that sch A practice is now custom? Likewise, cana Judicial decision which as al the elements Se ustom be conaldered customary? Al Though these questions appear to be purely ‘scademic, they could have an effect on the future understanding of the sources of inter ational law Judiiat Consistency. Ds Inapplicabiity of res jit ecisions of international tribunalsy these tribunals nevertheless follow the rule on [Midieal consistency, This rule provides that, fs much as. possible, ralings should not devise fom ae twen necessary. Local urisprudence Accordingtothe German Ingerests in Polish Upper Silesia Case (1926) PI Series Ano. Tl, the PCW remarked {hat fom the viewpoint of international law, ‘municipal law, Including legal decisions of domestic courts, are merely facts fom which abe inferred the wl ofthe Sate and Judicial Courtesy. in the Advisory Opinion ‘on the Interpretation of Peace Tveatice wth ‘Bugaria, Hungary, and Romania (1980) 10) Rep'221), the ICJ clarfed that when iti ‘requested for an opinion regarding « matter that is subject of a pending case, It the result will mater affect the decision the pening case, the ICJ wil ot hesitate to ‘decline the request for an opinion. 3. which must be fair and tana reper of ners i acknowledged authorities in the field, a Publicists are @ particular class of learned. scholars whose wetings are regarded. as being persuasive sources ‘of internatonel Jaw.although they are merely conalderedrepro TC oor esTION LAW ary seces of ner A, rman rae ho eo non practioner ee Ene actin voice cones ae oa iw. Exams ot ctr Caan, Vat OpPenig (othe ond aerate anon. Dai tir rl the nde a aedopment of ineroatin EEGs te no immune tom ‘olive ner tne Al uch wi ‘ens rt rest mporans oa RESIS Soe pate they cold he a Snes portant inte fcr “4 Inerretaion of Article 38. Although the provision is © Mere gusto of wheherthe thee pinay | Bike isa racic valu, by rece {clr ger cote and Conant Sram pice fw exept erp of Cpe cgens den weep of cntry iteratna a ta te to a peremptory see Somniing ea) Hama tern ‘ow. 4 peremptory norm is a norm accepted tr ae tetera STi a, tom whch no deen nied a wh cane ied subsequent norm having the same Examples are slave trade, piracy, and terrors See Hilo v. Estate of Marcos (25 F.3d 1467) ‘hes taal rere of dssenters was a violation of the principle OOM ome 1 Following antile 52 ofthe VCLT, a teal ‘widititcomes into confi with a perempten norm of international law. Fusthermry Ace 6 ofthe VELT provides that if. enn nom emerge all uti wih are rendered oid. AS Hg clear that States cannot evade | an en NN us cagens obligations by creating a treaty or Polating to one ready bs exatence 5. Other Sources of Law. Although not explicitly ‘mentioned under Article 38, other possibie sources of law are resolutions of international organizations, soft laws, and equity In the Nioaragua Case 1986, the IC), despite much crelsm, examined, and apprecited © ‘esalution by the UN General Assembly as possible cvidence of ebligation. Soft laws. Sof laws re mere guidelines for ‘conduct. With regard to the Philipines, these ae dot considered as binding, (See: Pharmaceutical land Heath Care Association of the Priippines ‘is, Health Secretary Francisco T. Duque [GR No. 173034), where the Supreme Covrt ruled that although sof laws can influence the behaviour of ‘States, they are sill considered as non binding hors, paneipes, and practices) b. Lex Mercatona. Although not strictly law which ‘i imposed by a sovereign, let mereatona, which hhas evolved through the practice af businessmen, til hugely @ part of international commercialIL SUBJECTS OF INTERNATIONAL LAW A. pitinton Between Subject and Object of International tes. 1 secs and Objects of Iterational Law A subd 2S tsay that bas rights and. responsible {et rapa lw; fcan be a proper pry tcins ming the appeation of the Taw fname amung members” ofthe internal Sramuny, Anes person or thing in respet ‘toch hae el eo obigatons assumed 9 Senet snot recy verned bythe Teh « awe ts nits are coved, ad { ropes pose, inrecny through Ue ‘eral fan interatonsl gen) 4% Rapse of Disincion. The separation betwee thre dthed wih personality, and tose ‘hata no meant to denote which ents fs inay ven Tegal personal Stata! ru Such w Confrment o ennai an acknowledgment ofthat €88 fet purty to several eights and duties that 3 be fund nthe international sphere (ie, a0 Seo teh etering int treaties ad sina arent) % dina ew. Tea we 2 Teationaly,. scholars ‘st he view that ony Sites, shoul {tiered the proper eubjct of itertioa eT radon ew haa is justifications Sue that when tomes tothe internal SSXQILSEtoaship between Sate ne ‘eo fundamental change in the als of whether that change is ost ‘= Furhemore sme sears she the traditional vew often polnt out that States are the ultimate representatives ofall ether entities incuding. individual, whole territories, and ttre communities, [See v. Craword, Browne's Prinepies of ternational La, 2012), ‘The subjects of international law include States, colo- nies, and dependencies, mandates and trust ternto- fies, the Holy See (Vatican City, the United Nations, Deligerearcommunites, international administra: te bodies, and, to certaln extent, individual. This ‘much broader view is based on contemporary deine D. States, 1 Defined. A State is a group of people, living together in feed territory, organized fo paideal ends wnder an independent government and capable a entering into International lations with other Staten, Elements. As Stated in Arce | ofthe 1933 Montevideo Convention on the Rights and Duties of States, the Permanent Population. A group of individuals, of both sexes, ving together ax n communi ‘They must be sufitent In number to maintais and perpetuate themselves. A casual gathering (stranded), or a society of pirates would not constiite a. State Note that. a degree of permanence is required before this element can be found present >. Defined Territory The xed portion on the earth's surface occupied by the inhabitant. Ht may be as large as China, or sculls Monaco (1/2 1 sale or San Marino (38 2, miles 1. Substantial Compliance. In the Deutsche Continental Gas-Gesellacha Case "1929 [5 AD Il} it was provided that in order to . satisfy the requirement of teritory, it is enough that the State possesses the land TP Wrelaite as us tervitory: even if the formalorganized, exercisingconta, ‘of maintaining Taw and onde, ‘ean be held internat “he ects of the inhabitants, The re snot affected by changes in 21. This inludes freedom the conduct of its foreign land in (Generally, ony independent State fre relations with other indepen Trteship terre, and varios colonics eed amount of control over eT fu oer States, By tecnica 3, though possessed of internalaal, personality, they are not be considered Sunt since their affairs to acetal Stl ent are being come tote ey. 1 Hr, a good example of 2 seligerning territory purport 4 be a State is. Manchukuo. Now Pat of modern day' China, Manche feeneriy Manchuria ~ was, 9 bythe dopancse in 1931 an SS prone n 1992. Beng new independent State of MOE ut the League of Nations sent io ae ae the new tate, The Lytton REPO ot ef the State of Manche puppet ofthe Japanese, an this x why the League of atoms never recognized Manchukuo asa. State. (See: VN hanna, Intemational Relations, 5th aktion, 20164, 1b) Exception 4 non self-governing ters Itsown futte,that territory which as formerly oa sellgoverning, ay poash Diy be considered a State Likewise, Ifa colony is granted real independence by its colonizer, it may possibly be consid- ‘rea State [Contrast the case of the Philippines, whic is now a State, being granted independence by the USA, with the case of Manchuleue, which in not a State, being granted independence by Sepaa.) “Achieving Statzhood. Although the elements of ‘Statehood as found in Article |e the 1033 Montevideo Convention ‘on the Rights and. Duties cf States thas already ‘been widely accepted as. customary International law, « question worth pondering om i Whether Statehood is achieved automaticaly poo ‘oquisiion and’ concurrence of the. slemente of Statehood. of whether a further act sill needs to be done after concurrence af the elements, For those who fare of the School of Thought that a farther act needs to be done before Statehood ix achieved, « farther {question would be what that act is, and who would be in charge of deciding whether such act has been tisfactriy completed Characteristics of Statehood. Although the legal consequences of Statehood are til being explored fand developed even in current times, there are fevertheless characteriatice of Statchood which ‘can na longer be denied. Among these are the ‘bility to enter into treaties and other agroemments wrth other State, exclusive Competence with7 annua te piy domenica, room fe sere ef ternational buna ug tgve their consent, ang 0 ay eae! tan cae iar where he POU State at 9 he iceratioal ere, ll acts not expremly ineraational law are alowed Tegardless of how many tines a ges, such changes generally ae pod, (See: Tinoco Aritaton (269), where there was a dacussot interplay between changes in goveramest Republic vs. Sandiganbaye. M3) [GR No, 104768), where the Suprese dacureed the continuity of the State ant 4 commitments under internetional law = luring times where the constitution was nat 4. Oe Supe Bement of State Are: * Sriaton © Recmiton: The act by which a State sekae, ‘i the existence of anather Sta, Bento eligerent community, and indi ‘ilies del withthe entity 8 92 4 imerstonal tow. ote: The i {razsten hasbeen substituted tow br he ac of admiasion to the UN. UN ‘suet the new member as an equ Pay aa nana chance fmt rs, alls fused recognition 10 Tt fd the UN Security Council "Po to recognize Southern a oe Twee eal hat he UN CO called Rhodes Theories on Recognition: 9) ConatitutiedMnacy ews: Recognition ihe act wfuch constitutes the eniy Into an international person. Under this view, recognition {compulsory fan log t may be compelled ance the ‘ements ofa Stat are established. 1) Declaratise (Majority view! Under the ‘majority view, recognition merely firms fn ensting fet, Ike the possession by the State of the essential element I is ‘iseretioary and pola ‘asic Rules on Recognition Ite «political act ‘and mainly a matter of pie on the part of ach State; itis discretionary on the part of {the recognizing authority: an ii exercised by the political executive) department of the State. Thus, the legality and wisdom of ecogition in not subject to judicial review, Requirements for Recognition of Government ‘The government ix stable and effective, with ro substantial reistance to ite author, the" government must. show wilingress and Ability to. discharge its international ‘bligations: and the government must enjoy Popular consent or approval of the people 9) Tobar/titson Doctrine; rectudes rec- ogniion of any government established by revolutionary means until constitu tional reorganization by fee election of 1) Simsan_Doctin: No recognition of a fvernmcntestablahed through exe rl arresion ©) Bstada_Dectine: Since recognition haben nid apr an ron tection, disapproval of a rnment established through a pelt al upheaval, a State may hot isu &ov To RUBLIC omar sing recognition to such rebut merely accept what semepmerent isin fective contre cating te ie Of recognition, Petr or not dealing with the Bower: ents ot a jcdgment on the egitim geod goverment. [Note: Recall otxonivon ofthe People's Repub UFetina based on the one China pa a in ins of Recognition. May be express or ‘ema lo be 4) Dead Ercnded by the recognising Shes which believes thet some of fe requirements for recognition are Shen The recognition is generally and limited to" cera fiat relations; it does. not bring ‘imi hl diplomatic intercourse and Ase ot geil to assets ofthe Sate ‘hal stated abroad 1) Defuse Extended toa government fae «filing the euirements for recognition Wen thre is'no specific indication, ‘eroon is generally considered 9 te je. The recognition is. relative ‘manent brings abot fl diplomat Feinerourse and observance of dip ‘atic immuniies; and confers te 1 fect crond (See: Layers Leaie ‘Bieter Piipines vs. Corazon GR ho. 73748, May 22, 1986) ‘fects f Recognition: Diplomatic relations St sei the cours of the 1 ‘Sue ‘See: Banco Nacional de Sabian, 276 U.S. 396, where ‘Rts othe ack of repro uaa mmanity from men toproperty within the once validation of the the recognized State/government, such as facts of State, and thus, sovereign immunity overs pas, present and fature acts (Oejen to Central Leather Co. 246 US. 2971), ‘i Recognition of Beligereney: Conditions, The {ieua! conditions for the recognition of the Statue of beligerency are: organized civil government having. control and. superv: Sion over the armed struggle; serious and ‘widespread struggle with the outcome un- ‘Certain; ccupation of substantial portion ‘ofthe national territory: and willingness on the part ofthe rebels to observe the rulee/ unos of war. [Note 1) Absence of any of the foregoing conditions wil result merely in insurgency which Is rarely recognized. {2) Recognition may be either express or im: pled; the proclamation by the parent State (ha blockade ofa port held by the rebels is impli reengnition of belligerency soi the proclamation of neutrality by a third State] vi, Efets of Recognition of Beligerency. Res pomsitilty for acts of rebels resulting in jury 10 nationale of the recognizing State ube shied tothe rebel government; the Tegitimate government recognising the reb- tls shall observe the laws of war in conduet- Ing hostlities: third States Fecognizing the Deligerency shall maintain aeutraliy, and Fecognition is only provisional or the dura- tion ofthe armed struggle} and only for the purpose ofthe hostites. Willingness to Observe International Law. This sugested clement exists due tothe point of view tf eertain witers like John Dugard who aze of the opinion thatthe international community empowered to refain fom recognizing the legal personality of States and other entities purporting {o be States ulin the same have achieved their ‘Statehood through means that would bein confict70 PUBLIC OTN ERNATIONAL LAW EES. a Pee aco smn ee een ee ae ee ee ee ee ae ee eae ee ee eae Saget pes aes rae epee eae ee ee ee ee age tos eee ae eee fet of Uniateral Declaration of Staton, Ia te cae of the Apartheid. Regine Souther Rhodesia, they attempted sche Sttchood by unilaterally hestobeanew andindepenaertSte ithe 1960, This unilateral wu condemned by the UN Security CO st Resolution which impose? on States not t0 legal regine, Thus, it appears that a SM 5) fw crcumvent. he require Siichaed by unilaterally declaring iy State. [See: D. Raic, Statehood and *M# ‘fSelfDetermination, 2002) QE Poste Elements, Crawford, iz or sii tae ( Ststehood and the ereation of Sy oath list by inctuding the elem rad tse willingness to obeerve ine It sence egal onder with Se hay qat®¥ in some cases, degree of CUE of Steep®, Deen thought of as an cM hood. (See: J ‘Crawford, The crest 'n eratinal Lens, 2006] Creation of States. By evolution, unification, secession, ‘assertion of independence, agreement, and attainment of etilization Extinction of States. By extinction or emigration en masse ofits population, loss of territory, overthrow of government resulting in anarchy. Principle of State Continuity. The State continues as a juristic being notwithstanding changes in its Circumstances, provided only that sueh changes do not result in the loss of any of ts essential elements, See Sapphire Case where, ater Emperor Louis Napoleon Sled a damage suit on behalf of France in an American court, he was deposed. Nonetheless, the action was ‘not abated and could continue upon recognition ofthe uly authorized representative ofthe new government of France, 8. Succession of States, May be universal or parti Consequences are: political Iaws are abrogated [Peopte vs. Perfecto, 43 Phi. 887] while municipal laws remain in force (Milas vs, City of Manila, 229 US. 345); treaties are discontinued, except those dealing with local rights and duties, auch as ‘those establishing easements and servitudes; all Fights ofthe predecessor State are inherited, but successor State can asstime and reject abilities fat its discretion. [Notes In Maile Selassie w. Cable Wireless, it was ruled that a conquered State has ‘no personality in international law >, Succession of Governments, The integrity of the State is not affected; the State continues as the same international person except that its lawful representative is. changed. The consequences are: all rights of the predecessor government are inherited by the successor; and where the new government was organized by virtue of constitutional reform duly ratified in a plebiscite all obligations of the predecessor are. likewise ‘assumed. However, where the new government ‘established through violence, the new governiment may lawfully reject purely personal or politicalforthe protection bya strong power e.g, Panasma, ‘Andorra, Monaco) of a suzerainay (which ithe ‘eoull of @ concession fom a State fo-a former Colony that i allowed to be sndependent subject tothe retention bythe former sovereign oferta | foal busines, See: Tinoco Arbitration 1923 ‘Sandiganbayan (2003) (GR. i Sultan of Turkey by virtue ofthe Treaty of Berlin oris7s) ‘without restraint from oe ©. euttatized: whose independence and integrity fre guaranteed by an international ay on the Condition that such State obligates see never to take up arms against any other Bate except in scltdefense) orto enter into an international ‘obligation as would indirectly tnolved stim wes, fog, Swiveriand, Austria, a—. Tera and chal aa Two or mare sovereign Salt 1S conse ont ite on, whch may be alsin: wo or more Sines a Fey, me ot et sy CMe Yalan ly andthe Hoty See ‘that they form a single internati 1, The Holy See ostensibly has all the constituent ele- ‘person through which they act 08 ‘ments of Statehood (people: less than 1,000 individu- ‘at The Sen nein Becer1on7 hc pcm nthe Pope ‘Sie ba hei especie, Sa Inport ye fhe ase fan net el ee Het Rtas is 19, whch cone sed bended inthe new int ay Ero fae te ote Ste, cing pe tag bevel See}. It has its of @ State, incluc > Fence. Eg, che former Unie akc hacreure,lnenuniy fon frig ureticton, Republic, with Egypt, and Syria. i ete, eal Union: combination of 2. Sex, however, Hay See. del Rosario, 238 SCRA S24, | a | iihienainnae™! 1 mere tates which, upon ITB" were the Supreme Court distinguished Vatican City 10 be States, resulting in the tra Irom the Holy See. The Holy See is an international ofa new State with full interna person with which the Philippines had diplomatic tes Personality to represent them #9 ince 1957. segenelelations as well ** inet, Colonten and Dependencies colny ta dependent po Sf Power over thet ior {ical coramunity constting ofa ruber of citizens of the a Netw ‘same country who have migrated therefrom to inhabit an- amternal affairs: divides ibe ‘other country, but remain subject to the mother State. A Senaal authorities and the dependency i a teritory distinct from the country in which 's; authority over external the supreme sovereign power resides, but belongs rightfully to ie and subject to the laws and regulations which the Sovereign may prescribe. (Nate: Theoretically, they belong, ded soy by federal au a SPY which, although then 2 Mt have fall feed i th mata enero teto he pret Ste and, thus, are without any person 1h aration! community. HOWeVer, on occasion, Aare ber allowed to participate in their own rg (olen Nscnatal undertakings, eg. the Philippines in ted x signatory the UN Chatter.) ‘erties ner International Control or Superson Rotor sckgreringterrories which have bet ‘Roc undeinentona supervision or control tinue ‘ioral, comm scial and educational advance Ser ce are mandotes, which were former teri ‘penne the Snes defeated in World War Tend clan contl tthe League of Nations, Maay {se mundies cane tas terores placed under tt ‘resp Curl he United Nations 1. Andi a eritory jointly administered ost ‘The ned Nats 1 Ht Dertgment of the United Nations. 1 Thre mas he League of Nations, formed in atermath of WWI by the will of the victorint Sut embeded inthe 1919 Treaty of Verse ‘vas widely considered a failure in attaining any ie of maintaining nea nde the out ‘Wor Werf specially after the ‘The Lindon Declaration, June 12, 194 Te hae Charter, August 14, 1943+ — by United Nations, January 119% ‘04 Declaration, October 30, 1943- au Dubaron Oaks 7 Setar aug, OPO Washine i ‘ta Contrence, Crimea, February 11+ 1 ‘San Pr - sansco Conference, April 25, "00% RUM which deegates trom 5° Chanee't*!¥ approved the United Der 2% er ach er IER Shc ne ato force 2 4. On April &, 1999, the UN General Assembly welcomed Macedonia, the ith member, nto ‘he community of nations. ‘The UN Charter. This isthe closest to a constitution that basically governs the relations of international persons. Technically, it is a treaty. a contract which the partes mist respect under the doctrine of paca sunt servanda, although it actually applies even to fon-member States, atleast in 50 far_as “may be Iecessary for the maintenance of international peace find security I consists of a Preamble, 19 chapters, 11 articles, and the concluding provisions. Annexed toitis the Statute ofthe international Court of Justice. ‘4. Amendment. i] By a wot of2/3 ofthe members of the General Assembly and ratified in accordance with ‘their respective constitutional. processes by 2/2 of the members of the United Nations, inchiding_all the permanent members of the Security Council ji] A general conference, called. by a majority vote of the General Assembly and fany nine members of the Security Counc, Inay propote amendments by a 2/3 vote of the ‘conference, and shall take eflect when rated by 2/3 of the members ofthe UN, including the permanent members ofthe Security Counc 1. Purposes. The principal objectives of the UN fre the prevention of war, the maintenance of international peace and security, the development ‘of friendly relations among the members of the ternational ‘community, the attainment of {international cooperation, and harmony in the ‘ction of nations Membership. 48 Classes: Based on the manner of admission, ‘members may be onginal or elective b. Qualifications: member must be a State, peace Toying, accept the obligations under the Charter, fand be able and wing to carry out these ‘obligations,aL Be a wee ot Sol are ermaneat menbers of the Security Cour. ee. ee a Saree =e SS ee ae See Saeeeeh e | issilsubject to discharge its obligations unde the Charer. To lit the suspension, a qualied ofthe Security Couneil is needed. © Eamubon: 2/3 vote of those present and voting Inthe General Assembly, upon recommenda laqualiied majority ofthe Security Councl. ad fperenyviating te pale ‘omtined in the Charter. ‘Mila: was intended that no provisions Yihdral e incuded in the Charter, cathowgs aly 0 compulsion or cote ‘ener ifthe member fees consti aiden die to exceptional circumstance March 1,165, Indonesia ted to wih let er Malyia's election a me te Sect Cour, but appeared Itt is ney a cexstion_ af cooperation Furia! — and the UN allowed resumPtg {al menirsipo Indonesia on Seple m= ons * Geamatscotiy, consats ofall the Me ae ect, ech of which ne thn repesenave Eat member as only one wee 2 oie HB ‘der seat - ‘rte devcopment of eternaonal i Supervisory, such as receiving and considering fnnual and special reports from other organs of the UN; [i] Branca as the consideration and approval of the budget of the organization, the ‘pportionment of expenses, ef [iv] Elective, as inthe election ofthe non permanent members of the Security Council all members of the BeuSoe, ‘tc; and [o] Constituent, such as the admission fof members and the amendment of the Char fer Its regular session is held once a year and ‘may hold special sessions cae by the Secretary General atthe eequest ofthe Security Council OF ‘2 mmajority of the members. On important ques. tions, eg, peace, security, membership, lee tons, rusieeahip ater, budget, the vote of 2/9 ff the members present and voting ia required on fther questions a simple majority is sufficient. ‘To elasiy a question as important, the vote te. dulred Isa simple major. |. Note dha the General Assembly isnot eg fslative bods, for It can only make recom mendations nd no Binding rules Sccunty Counc. It is the Key organ inthe ‘intenance of international peace and secur. Te is compoted of five. permanent “members namely: China, rance, Russia, the United Kingdom and the United States; and 10 elective members, ected for a two-year term by the General Assembly, five from Afiean and Asian States, two fom Latin American Stats, two fom Western European and other States, and one fiom Eastern Buropean States, For the elective Inembers, no iminediate reelection is alowed ‘The Seaunty Council is expected to function Continuously, and sessions may be called at any time, thus, the representative of the member States should always be avaiable. ‘unctions, The Security Counel has prima fy responsibilty to maintain international peace and sect: investigate daputes and ail isputanta to sete their diferences‘means; recommend meth: nt of disputes: determing Enforcement actions in the past had threats to peace, breachar ‘been usually stymied by the veto power fof the permanent members of the | ‘Security Council. 1) Domestic jurisdiction clause. The Security Council may take such Steps as are necessary for the Settement of disputes, inchuding preventive or enforcement action, fas mentioned above. ‘The only n-character. Otherwise, such faction would violate the principle that the UN shall not intervene lany matter within the domestic jirisdiction of any State. 12) Recommendatory Actions. The Se- fuity Counc, through Its reso- m Tutons, “may ‘make recommen- affairs of the host county. ee ea oieetal ‘may also be undertak- ‘Couned Resoltion 777, where the ‘erring members, such a8 i Security Council recommend com fed that the Federal Republic of ‘Yugoslavia apply for UN member hip because fe could not automat- ically inherit the UN membership ‘of the former Socialist Federal Re public of Yugoslavia Binding Effect. Following Aricle 48 1) Note that these peacekecping mit sions are to take place only Pew a my fine UN Charter the decisions eet te ay an cone Of the Security Council for the Gouna and sey wi ei fnaintenance of international to a penceand security is required tobe these misions are mead" {hen by those States determined “neutral and defensive rather May tyrithe Security Counc. Such Sapa, and the Peer ee sents tat with ear to such missions {o much decisions, they appear to ally go on's voluntary besi®- the a binding elect onthe States ¥ required to act Earement action may consist 0, ‘deployment of air, sea, and land force ‘®t im the institution of @ piocked®‘f economic and social progress and ‘development, solutions of international ‘economic, social, health “and. related problems, universal respect for and Sbservance of human rights and fundamental freedoms. Decisions ate reached by a simple majority ote. ‘Tausteeship Counc. Charged with the duty of assisting the Securty Counell find the General Assembly in the a Iministraion ofthe international Trust- feship Siatem. It is composed of i) ‘members of the UN administering trust temtories: [il permanent members of the Security Counell not administer lng trust territories: and [i] many bother members elected by the General ‘Assembly as may be necessary to en ‘fe that the tla number of members ‘qual divided between those mer- ‘ers ofthe UN which administer ust tertories and those which donot. Note that the lst trust tertory, Micronesia, hha since then become an independent Seccetariat. The chief administrative brpaof tie UN: headedby the Secretary General who is chosen by the General Assembly pon recommendation of fhe Secunty” Coupel. The Secretary General ts the highest representative fof the UN, apd is authored to actin Ite benallHe also acts as Secretary in fll meetings of the General Assembly, the Secanty Counel, the Economic and ‘Social Counel, and. the Trusteeship ‘Council, The Secretary General and his Saif are international civil servants find they cannot receive instructions from any government or souree outside the UN. The Secretary General enjoysanata the night of politcal initiative, ang nay bring 10 the attention of the Uy "Security Council any matter which, jg ‘nsopinion, may threaten international | pees and security. )Insrnational Court of Justice ti the pricial tical organ ofthe UN; com josed of 15 members who are eeced [raterm of nine years by absohateme- jjniy vote fn the General Assembly and the Secunty Council, in separate ele- tons, no (Wo of whom must be nation. aso the same State. They must be of high moral character and possess the ‘qualifcatons required in their respec tie countries for appointment to ther ical ofces. Under Artie St ofthe ICJ Statute, judges are not isqaliied from hearing a case simply ‘crus they are nationals of any party spied |. Background. The ICJ was crested in 1945 and replaced the Perm nent Court of International Jus tice Article 92 of the UN Chater describes the ICJ as principal ‘an of the UN. Parties. Under Article 34 ofthe 1) Statute, only States may De ties toa case before the IC i, Provisional Measures. Under ‘ide 31 of the 1CJ Statute, the an gant provisional No Stare Decisis. Under Article 59 ff the TC Statute, the decision ‘ot the Court has no binding force except between the paris and in Feapect of that particular case Wi. Jaradition, The Court decides Contentious cases, and renders fvisory opinions. Only States, Including ‘pon-members of the LUN, may be parties in conten- ous eases. The jurisdiction ofthe ‘Court fe based on the consent of the parties in accordance with the “optional jurisdiction clause’, and the Cour may decide on interpre: tation of treaties, any question of International law, the existence of feta constituting breach of Inter- ‘ational obligations, and the na fue or extent ofthe eparation to be made for the breach ofan inter: ‘ational obligation. Adwsory opin fons may'be given upon request of the General Atsemily, or the Se- unity Councilor the other organs ff the UN when authorised by the General Assembiy 8) Challenging | Jurisdiction ‘There i nothing prohibiting partes from challenging the Jurisdiction of the ICJ over any dispute Beltigerent Communities. Liberation movements, oF insurgent communities, which have attained « belligerent ‘satus under inteational law, particularly international Ihumanitaran law, may validly enter into legal relatons fwth States and conchae valid internationally recognized International Administrative Bodles. Certain admin ‘tative bode, created by agreement among States, may be ‘eated with international personality, provided that heyResponsibility, which are "generally customary organizations was armed, limited. In discussing wy have legal personality, the ‘were ereated by States nations by the States ‘may only be used 1 fr which they were created OF Dette, Is the tegal personality of the ronan esata by Sie tha extn ony to the eyes of ORE ‘seated organizations have fonal malty under interns Loe wth s necessary for them to cart) OU heer ae tot recat ela Steps State wishes, it may refs se becraly ofan organization rng Rules of Engagement. Given the uncertainty that lice in the relationship between States and International organiations, the best source of the rules of uch a relationship are the various ‘reaties which have been created by States onthe stuject. In general, the Vienna Convention on the Law of Treaties between States and international ‘Organizations ts one of the most fundamental {renties that tres to pt order tothe eelationship bbemeen States and international organizations. A fore speific weaty would be those which created the onpanizaions ‘Uhemeclves Because” these teats would normally include guidelines which Could help understand the relationship Beeween, the creating States and the created organization, Domestic Applicaton. With regard to the person- fy of international organizations in the domes- tie sphere, the rile for such are often aleady ‘contained inthe teaty which created them. For ‘ample, Articles 1D4 and 105 of the UN Charter Specifically provides forthe legal eapacicy of the Un in the territory of ts members, and for the ‘enjoyment af the UN of prvleges and immunities fnevesnry forthe flllment of is purpose while Ihe terntary of ts members Distinguishing Factors In order to distinguish an international organization wis legal personality {inthe infernational-sphere. rom an ordinary ‘organization without such personality. look Atte powers granted tothe organization in it ‘harter instructive. For example, ithe charter ‘tan international organisation allows (to being aime before an international tribunal, this 1s {aterial because only chose with legal personality Inthe international sphere may being clamas efore an international tibunal fon the other hand, the organiaation may only’ bring lame before domestic court, this isa good at pethape, that organization does not have legal personality i the international spherea oon EAN TOL LAN a. 2 brianna et Ne Se ee Sere et can winter Sot Crem Se ete seen con rn See eee act Saran m peh tine = a (SS Seepage aoe amaeis ey ae eee ie tees omen Ese res caret ee ian Oo legality of the use of nuclear eo of specialty, for such competence =a eos eee 1nd gh tional, invidats have ten Fe (Saitaed mary objects, not subjects, of international Sneed nas eet ot uct, of a s been a growing tendency to admit that Ime may hare ‘some’ degree a internation ‘Fetal eke The cant sen especial ite human ite an wth epard 0 cs in al stent ope, wise Indi F i ‘or! Dean arnt gn ht mente, Some weates, eg, the Treaty of Veraiies, which anfer of individuals the right 0 bring sult against ‘States before national or international tuna ‘The need for States to maintain an intemational Standard of sce in the treatment of aes ‘The Genocide Convention, which condemns the mass extermination of national, enc, racial or religious ‘The 1990 Hague Convention with its rules to prevent the anomaloas condion of Statelesenesa, aod Uhe 1954 Covenant Relating to the Status. of Stateless Persons, which grants Stateless individuals certain baste rights: ‘The 1950 European Convention on Human Rights ‘tnd Fundamental Freedoms, which ants private stvociattone and individuals the night tole complaints ‘efor the European Court on Human Right.