Codes and Notes on Public International Law

Public International Law – It is the body of rules and principles that are recognized as legally binding and which govern the relations of states and other entities invested with international legal personality. Formerly known as “law of nations” coined by Jeremy Bentham in 1789.

Three Major Parts of Public International Law1. Laws of Peace – normal relations between states in the absence of war. 2. Laws of War – relations between hostile or belligerent states during wartime.

3. Laws of Neutrality – relations between a non-participant state and a participant state during wartime. This also refers to the relations among non-participating states.

Sources of Public International Law1. International conventions 2. International custom 3. The general principles of law recognized by civilized nations. prescription, pacta sunt servanda, and estoppel).

(e.g.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

Distinction of Public International Law with Municipal LawMunicipal Law Public International Law

1. Issued by a political superior for 1. Not imposed upon but simply observance by those under its adopted by states as a common rule of authority; action among themselves; 2. Consists mainly of enactments from 2. derived not from any particular the law-making authority of each state; legislation but from such sources as international customs, international conventions and the general principles of law; 3. Regulates the relations of 3. Applies to the relations inter se of individuals among themselves or with states and other international persons; their own states; 4. Violations are redressed through

4. Questions are resolved through local administrative and judicial state-to-state transactions ranging from processes; and, peaceful methods like negotiation and arbitration to the hostile arbitrament of force like reprisals and even war; and, 5. breaches generally entail only 5. responsibility of infractions is usually individual responsibility. collective in the sense that it attaches directly to the state and not to its nationals.

Public International Law in Relation to Municipal LawIn the paquete Habana, Justice Gray said: “the law of nations, although not specially adopted by the Constitution or any municipal act, is essentially a part of the law of the land.” Doctrine of Incorporation – the rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. (Sec. of Justice v. Lantion GRN 139465, Jan. 18, 2000) This doctrine is followed in the Philippines as embodied in Art. II, Sec. 2 of the

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

1987 Constitution which provides that: “The Philippines…adopts the generally accepted principles of international law as part of the law of the land…” However, no primacy is implied. It should be presumed that municipal law is always enacted by each state with due regard for and never in defiance of the generally accepted principles of international law. (Co Kim Chan v. Valdez Tan Keh). It is a settled principle of international law that a sovereign cannot be permitted to set up his own municipal law as a bar to a claim by foreign sovereign for a wrong done to the latter’s subject. (US v Guatemala).

Constitution v. TreatyGenerally, the treaty is rejected in the local forum but is upheld byinternational tribunals as ademandable obligation of the signatories under the principle of pacta sunt servanda. 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. A state which has contracted a valid international obligation is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.

The Philippine Constitution however contains provisions empowering the judiciary to annul treaties thereby establishing the primacy of the local law over the international agreement. Art. X, Sec. 2(2) provides that “all cases involving the constitutionality of any treaty, executive agreement or law shall be heard and decided by the Supreme Court en banc, and no treaty, executive agreement or law may be declared unconstitutional without the concurence of ten justices.” The Constitution authorizes the nullification of a treaty not only when it conflicts with the Constitution but also when it runs counter to an act of Congress. (Gonzales v. Hechanova).

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

Basis of Public International LawThree theories on this matter: 1. The Naturalist – under this theory, there is a natural and universal principle of right and wrong, independent of any mutual intercource or compact, which is supposed to be discovered and recognized by every individual through the use of his reason and his conscience.

2. The Positivist – under this theory, the binding force of international law is derived from the agreement of sovereign states to be bound by it. It is not a law of subordination but of coordination. 3. The Eclectics or Groatians – this theory offers both the law of nature and the consent of states as the basis of international law. It contends that the system of international law is based on the “dictate of right reason” as well as “the practice of states.”

Sanctions of Public International LawSanctions – the compulsive force of reciprocal advantage and fear of retaliation. 1. The inherent reasonableness of international law that its observance will redound to the welfare of the whole society of nations; 2. The normal habits of obedience ingrained in the nature of man as a social being; 3. To project an agreeable public image in order to maintain the goodwill and favorable regard of the rest of the family of nations; 4. The constant and reasonable fear that violations of international law might visit upon the culprit the retaliation of other states; and, 5. The machinery of the United Nations which proves to be an effective deterrent to international disputes caused by disregard of the law of nations.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

Enforcement of Public International LawStates are able to enforce international law among each other through international organizations or regional groups such as the United Nations and the Organization of American States. These bodies may adopt measures as may be necessary to compel compliance with international obligations or vindicate the wrong committed.

Functions of Public International Law1. To establish peace and order in the community of nations and to prevent the employment of force, including war, in all international relations; 2. To promote world friendship by levelling the barriers, as of color or creed; 3. To encourage and ensure greater international cooperation in the solution of certain common problems of a political, economic, cultural or humanitarian character; and, 4. To provide for the orderly management of the relations of states on the basis of the substantive rules they have agreed to observe as members of the international community.

Distinctions with Other ConceptsInternational morality or ethics – embodies those principles which govern the relations of states from the higher standpoint of conscience, morality, justice and humanity. International diplomacy – relates to the objects of national or international policy and the conduct of foreign affairs or international relations. International administrative law – that body of laws and regulations created by the action of international conferences or commissions which regulate the relations and activities of national and international agencies with respect to those material and intellectual interests which have received an authoritative universal recognition.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

CHAPTER 2 THE INTERNATIONAL COMMUNITYInternational Community – the body of juridical entities which are governed by the law of nations. Composition of International community: 1. 2. 3. 4. 5. 6. 7. 8. State United Nations the Vatican City Colonies and dependencies Mandates and trust territories International administrative bodies Belligerent communities Individuals

1. StatesState – a group of people living together in a definite territory under an independent government organized for political ends and capable of entering into international relations. Some writers no loner recognized the distinction between state and nation, pointing out that these two terms are now used in an identical sense. Nevertheless, a respectable number of jurists still hold that the state is a legal concept, the nation is only a racial or ethnic concept. Elements of A State 1. 2. 3. 4. People Territory Government Sovereignty

A. People – the inhabitants of the State. People must be numerous enough to be self-sufficing and to defend themselves, and small enough to be easily administered and sustained. They are aggregate

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of individuals of both sexes who live together as a community despite racial or cultural differences. • Groups of people which cannot comprise a State: ◦Amazons – not of both sexes; cannot perpetuate themselves ◦ Pirates – considered as outside the pale of law, treated as an enemy of all mankind; “hostis humani generis” B. Territory – the fixed portion of the surface of the earth inhabited by the people of the State. The size is irrelevant. (San Marino v. China). But, practically, must not be too big as to be difficult to administer and defend; but must not be too small as to unable to provide for people’s needs.

C. Government – the agency or instrumentality through which the will of the State is formulated, expressed and realized. D. Sovereignty – the power to direct its own external affairs without interference or dictation from other states. Classification of States 1. Independent states – having full international personality. • Sovereignty – connotes freedom in the direction by the state in its own internal and external affairs. However international law is concerned only with this freedom in so far as it relates to external affairs; hence, a state which is not subject to dictation from others in this respect is known as an independent state.

2. Dependent states – exemplified by the suzerainty and the protectorate and are so called because they do not have full control of their external relations. • Dependent states fall into two general categories: the protectorate and the suzerainty. However, there is no unanimity as to their basic distinctions in terms of measure of control over its external affairs.

3. Neutralized states – an independent state, whether it be simple or composite, may be neutralized through agreement with other states by

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

virtue of which the latter will guarantee its integrity and independence provided it refrains from taking any act that will involve it in war or other hostile activity except for defensive purposes.

Classification or Types of An Independent State 1. Simple state – one which is placed under a single and centralized government exercising power over both its internal and external affairs (e.g. Philippines and Holland). 2. Composite state – one which consists two or more states, each with its own separate government but bound under central authority exercising, to a greater or less degree, control over their external relations. Kinds or Categories of Composite States: a) Real Union – created when two or more states are merged under a unified authority so that they form a single international person through which they act as one entity (e.g. Norway and Sweden from 18154 to 1905).

b) Federal Union (or a federation) – is a combination of two or more sovereign states which upon merger cease to be states, resulting in the creation of a new state with full international personality to represent them in their external relations as well as a certain degree of power over the domestic affairs and their inhabitants (e.g. German Empire under the Constitution of 1871). c) Confederation – an organization of states which retain their internal sovereignty and, to some degree, their external sovereignty, while delegating to the collective body power to represent them as a whole for certain limited and specified purposes (e.g. German states in 1866 until they eventually developed into a more closely-knit federation).

d) Personal Union – comes into being when two or more independent states are brought together under the rule of the same monarch, who nevertheless does not constitute one international person for the purpose of representing any or all of them. Strictly speaking therefore, the personal union is not a composite state because no new international person is created to represent it in international relations (e.g. Belgium and the Former Congo Free State from 1885 to 1905).

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

2. The United NationsAlthough the United Nations is not a state or a super-state but a mere organization of states, it is regarded as an international person for certain purposes. • It enjoys certain privileges and immunities, such as non-suability, inviolability of its premises and archives, and exemption from taxation. It can assert a diplomatic claim on behalf of its officials,and treaties may also be concluded by it through the General Assembly, the Security Council, and the Economic and Social Council. Trust territories are supposed to be under its residual sovereignty.

3. The Vatican CityIn 1928, Italy and the Vatican concluded the Lateran Treaty “for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it absolute and indisputable sovereignty in the field of international relations.”

4. Colonies and DependenciesFrom the viewpoint of international law, a colony or a depndency is part and parcel of the parent state, through which all its external relations are transacted with other states. Nevertheless, such entities have been allowed on occasion to participate in their own right in international undertakings and granted practically the status of a sovereign state. It is when acting in this capacity that colonies and dependencies are considered international persons.

5. Mandates and Trust TerritoriesThe system of mandates was established after the first World War in order to avoid outright annexation of the underdeveloped territories taken from the defeated powers and to place their administration under some form of international supervision.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

Three Kinds of Trust Territories: 1. Those held under mandate under the League of Nations; 2. Those territories detached from the defeated states after World War II; and, 3. Those voluntarily placed under the system of thestates responsible for their administration. These territories enjoy certain rights directly available to them under the United Nations Charter that vest them with a degree of international personality. They are not however sovereign.

6. Belligerent CommunitiesWhen a portion of the population rises up in arms against the legitimate government of the state, and such conflict widens and aggravates, it may become necessary to accord the rebels recognition of belligerency. For purposes of the conflict, and pending determination of whether or not the belligerent community should be fully recognized as a state, it is treated as an international person and becomes directly subject to the laws of war and neutrality.

7. International Administrative BodiesCertain administrative bodies created by agreement among states may be vested with international personality (e.g. International Labor Organization, World Health Organization). Two Requisites for International Administrative Bodies to be Vested with International Personality: 1. Their purposes are mainly non-political; and that 2. They are autonomous, i.e. not subject to the control of any state.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

8. IndividualsTraditional concept regards the individual only as an object of international law who can act only through the instrumentality of his own state in matters involving other states. Of late, however, the view has grown among many writers that the individual is not merely an object but a subject of international law. One argument is that the individual is the basic unit of society, national and international, and must therefore ultimately governed by the laws of this society.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFASALIDAGA

CHAPTER 3 THE UNITED NATIONSThe United Nations emerged out of the travail of World war II as symbol of man’s undismayed determination to establish for all nations a rule of law that would forever banish the terrible holocaust of war in the so9lution of international disputes. The first formal step toward the creation of the United Nations was the Moscow Declaration, signed by the representatives of China, the Soviet Union, the United Kingdom, and the United States.

The U.N. CharterThe United Nations Charter – a lengthy document consisting of 111 articles besides the preamble and the concluding provisions. It also includes the Statute of the International Court of Justice which is annexed to and made an integral part of it. In one sense, the Charter maybe considered a treaty because it derives its binding force from the agreement of the parties to it. In another sense, it may be regarded as a constitution in so far as it provides for the organization and operations of the different organs of the United Nations and for the adoption of any change in its provisions through formal process of amendment.

The Charter is intended to apply not only to the members of the Organization but also to non-member states so far as may be necessary for the maintenance of international peace and security. Amendments to the Charter shall come into force by a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two-thirds of the Members of the United Nations.

The Preamble to the CharterThe preamble introduces the Charter and sets the common intentions that moved the original members to unite their will and efforts to achieve their common purposes.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

PurposesThe purposes of the Charter are expressed in Article 1 as follows: 1. Maintain international peace and security; 2. Develop friendly relations among nations; 3. Achieve international cooperation in solving international problems; 4. Be a center for harmonizing the actions of nations in the attainment of these common ends.

PrinciplesThe Seven Cardinal Principles ( as enumerated in Article 2): 1. The Organization is based on the principle of the sovereign equality of all its members; 2. All Members shall fulfill in good faith the obligations assumed by them in accordance with the present Charter; 3. All Members shall settle their international disputes by peaceful means; 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state; 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter; 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles; and, 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

MembershipTwo Kinds of members in the United Nations 1. Original – those which, having participated in the United Nations Conference on International Organization at San Francisco or having previously signed the Declaration by the United Nations of January 1, 1942, signed and ratified the Charter of the United Nations. • Interestingly, the Philippines was included as original member although it was not yet a state at the time.

2. Elective In addition to the original members, other members may be admitted to the United Nations by decision of the General Assembly upon the favorable recommendation of the Security Council. Membership Qualifications to the United Nations 1. 2. 3. 4. 5. It must be a state; It must be peace-loving; It must accept the obligations of the Charter; It must be able to carry out these obligations; and, It must be willing to carry out these obligations;

Suspension of MembersAs in the case of admission, suspension is effected by two-thirds of those present and voting in General Assembly upon the favorable recommendation of at least nine members of the Security Council, including all its permanent members. The suspension may be lifted alone by the Security Council, also by a qualified majority vote. Nationals of the suspended member may, however, continue serving in the Secretariat and the International Court of Justice as they are regarded as international officials or civil servants acting for the Organization itself.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

Since suspension affects only its rights and privileges, the member is still subject to the discharge of its obligations under the Charter.

Expulsion of MembersA member which has persistently violated the principles contained in the Charter may be expelled by two-0thirds of those present and voting in the General Assembly upon the recommendation of the Security Council by a qualified majority vote.

Withdrawal of MembersNo provision on withdrawal of membership was included in the Charter because of the fear that it might encourage successive withdrawals that would weaken the Organization.

Organs of the United Nations1. 2. 3. 4. 5. 6. The General Assembly The Security Council The Economic andSocial Council The Trusteeship Council The International Court of Justice The Secretariat

A. The General Assembly It consists of all the members of the Organization, each of which is entitled to send not more than five representatives and five alternates as well as such technical staff as it may need. • Functions of the General Assembly ◦ Deliberative recommendations; such as initiating studies and making

◦ Supervisory – such as receiving and considering annual and special

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reports from the other organs; ◦ Financial – such as consideration and approval of budget of the Organization; ◦ Elective – such as the election of non-permanent members of the Security Council; ◦ Constituent – such as the admission of members and the amendment of the Charter. B. The Security Council The key organ of the United Nations of international peace and security is the Security Council. It consists of five permanent members and ten elective members. The elective members are elected for two-year terms.

C. The Economic and Social Council The responsibility for the promotion of international economic and social cooperation is vested in the General Assembly, and under its authority, the Economic and Social Council. Specifically these organs should exert efforts toward: • • • higher standards of living, full employment, and conditions of economic and social progress and development; solutions of international economic, social, health and related problems, and international, cultural and educational cooperation; and, universal respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

D. The Trusteeship Council It is the organ charged with the duty of assisting the Security Council and the General Assembly in the administration of the international trusteeship system. E. The International Court of Justice It functions in accordance with the Statute. All members of the Organization are ipso facto parties to the Statute. A non-member may become a party on conditions to be determined in each case by the General Assembly upon the

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recommendation of the security Council. The principal functions of the Court are: • • to decide contentious cases; and, render advisory opinions.

The jurisdiction of the Court is based on the consent of the parties as manifested under the “optional jurisdiction clause” in Article 36 of the Statute. Advisory opinions may be given by the Court upon request of the General Assembly or the Security Council, as well as other organs of the United Nations, when authorized by the General Assembly, on legal questions arising within the scope of their activities.

F. The Secretariat It is the chief administrative organ of the United Nations which is headed by the Secretary-General. The Secretary-General is chosen by the General Assembly upon the recommendation of the Security Council. His term is fixed at five years by resolution of the general Assembly, and he may be re-elected. The Secretary-General is the highest representative of the United Nations and is authorized to act in its behalf. When acting in this capacity, he is entitled to full diplomatic immunities and privileges which only the Security Council may waive.

The Secretary-General also acts as secretary in all meetings of the General Assembly, the Security Council, the Economic and Social Council and the Trusteeship Council and performs such other functions as may be assigned to him by these organs. In addition, he prepares the budget of the United Nations for submission to the General Assembly, provides technical facilities to the different organs of the Organization, and in general coordinates its vast administrative machinery.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

CHAPTER 4 THE CONCEPT OF THE STATEAs the basic unit of the international community, the state is the principalsubject of international law.

Creation of the StateFour Essential Elements of the State 1. 2. 3. 4. People Territory Government Sovereignty

Methods by which Status of A State is Acquired 1. 2. 3. 4. 5. Revolution Unification Secession Assertion of independence AgreementsAttainment of civilization

The Principle of State ContinuityFrom the moment of its creation, the state cointinues as a juristic being notwithstanding changes in its circumstances, provided only that they do not result in loss of any of its essential elements.

Extinction of the StateNevertheless, it is error to suppose that a state is immortal. There are instances when a radical impairment or actual loss of one or more of the essential elements of the state will result in its extinction.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

Succession of StatesState succession takes place when one state assumes the rights and some of the obligations of another because of certain changes in the condition of the latter. Universal Succession – when a state is annexed to another state or is totally dismembered or merges with another state to form a new state. Partial Succession – when a portion of the territory of a state secedes or is ceded to another or when an independent state becomes a protectorate or a suzerainty or when a dependent state acquires full sovereignty.

Consequences of State Succession• The allegiance of the inhabitants of the predecessor state in the territory affected is transferred to the successor state. The political laws of the former sovereign are automatically abrogated and may be restored only by a positive act on the part of the new sovereign. Treaties of a political and even commercial nature are also discontinued, but the successor state is bound by treaties dealing with local rights and duties. All rights of the predecessor state are inherited by the successor state but this is not so where the liabilities are concerned.

Succession of GovernmentsOne government replaces another either peacefully or by violent methods. In both instances, the integrity of the state is not affected; the state continues as the same international person except only that its lawful representative is changed. The rule is that where the new government was organized by virtue of a constitutional reform, the obligations of the replaced government are also completely assumed by the former. Conversely, where the new government was established through violence, it may lawfully reject the purely personal or political obligations of the predecessor

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

government but not those contracted by it in the ordinary course of official business.

CODES AND NOTES ON PUBLIC INTERNATIONAL LAW by PORFERIO JR. and MELFA SALIDAGA

CHAPTER 5 RECOGNITIONEven if an entity has already acquired the elements of international personality, it is not for this reason alone automatically entitled to membership in the family of nations. Its admission thereto is dependent on: • as reflective of the majority theory, the acknowledgment of its status by those already wit