Public and Private International Law Version 5.0

PUBLIC AND PRIVATE INTERNATIONAL LAW
Compiled by: Clint M. Maratas based on the syllabus of Atty. Chezie K. Demegillo
Page 1 of 29
modes of settlement li(e negotiations and arbitration0 reprisals and even war Derived from suc% sources as international customs0 international conventions and general principles of law. :pplies to relations states inter se and ot%er international persons Infractions are usuall& collective in t%e sense t%at it attac%es directl& to t%e state and not to its nationals. administrative and 5udicial process.
PUBLIC INTERNATIONAL LAW

1. Introduction a. Nature of International Law and Private International Law b. Historical Development of International Law c. Basis of International Law d. Relation between International Law and unicipal Law e. !unctions of International Law "#$#" a. Nature of International Law and Pri ate International Law Definition of Pu!lic International Law It is t%e bod& of rules and principles t%at are recogni'ed as legall& binding and w%ic% govern t%e relations of states and ot%er entities invested wit% international legal personalit&. !ormerl& (nown as )law of nation"* coined b& +erem& Bent%am in ,-.9. Pu!lic International Law Di"tin#ui"$ed %ro& Pri ate International Law'Conflict of Law" It is t%at part of t%e law of eac% /tate w%ic% determines w%et%er0 in dealing wit% a factual situation0 an event or transaction between private individuals or entities involving a foreign element0 t%e law of some ot%er /tate will be recogni'ed. International Law 1 /et of rules and principles t%at governs t%e relations%ips between /tates and ot%er international actors w%ic% under odern International Law includes International 2rgani'ations0 3ransnational 4orporations and Individuals. ,. Nature Pu!lic Public is International in nature. It is a law of a sovereign over t%ose sub5ected to %is swa& 62pen%eim7 lauterpac%t0 8..9 Pri ate :s a rule0 Private is national or municipal in c%aracter. ;<cept w%en embodied in a treat& or convention0 becomes international in c%aracter. It is a law0 not above0 but between0 sovereign states and is t%erefore0 a wea(er law. 62pen%eim7 lauterpac%t0 8..9 Recourse is wit% municipal tribunals t%roug% local >. Responsibilit& for violation
8. /ource
4onsist mainl& from t%e lawma(ing aut%orit& of eac% state.
=. /ub5ect
Regulates t%e relations of individuals w%et%er of t%e same nationalit& or not ?enerall&0 entails onl& individual responsibilit&.
!. (i"torical De elo)&ent of International Law :ncient IL governed e<c%ange of diplomatic emissaries0 peace treaties0 etc. in world of ancient Romans and earlier. 3%e progressive rule of jus gentium0 seen as a law )common to all man0* became t%e law of t%e vast Roman ;mpire. odern IL began wit% t%e birt% of nation7states in t%e edieval :ge. ?overning principles were derived from Roman Law or 4anon Law w%ic% drew from natural law. Hugo ?rotius considered fat%er of modern IL. @%at %e called )law of t%e nations* was later given t%e name )IL* b& +erem& Bent%am. 3%e positivist approac% reinterpreted IL not on basis of concepts derived from reason but rat%er on basis of w%at actuall& %appened in t%e conflict between states. @it% emergence of notion of sovereignt& came t%e view of law as commands bac(ed up b& t%reats of sanction. In t%is view0 IL not law bec not from command of sovereign. Significant milestones in de elopment of !": ,.A Peace of @estp%alia Bending 8C &rs warA establis%ed a treat& based framewor( for peace cooperation. Bit was at t%is time t%at pacta sunt ser anda arose.A 2.A 4ongress of Dienna Bending Napoleonic warsA created a s&stem of multilateral pol and econ cooperation.
2. /ettlement of Dispute
Disputes are resolved t%roug% international

Page * of 29
Po"iti i"t -c$ool 1 agreement of sovereign states to be bound b& it Be<press in conventional law0 implied in customar& law0 and presumed in general principlesA. 8. *roatians or (clectics 1 :ccepts t%e doctrine of natural law0 but maintained t%at /tates were accountable onl& to t%eir own conscience for t%e observance of t%e duties imposed b& natural law0 unless t%e& %ad agreed to be bound to treat t%ose duties as part of positive law. 6;meric% von Dattel9 iddle ground Eclectic or .roatian -c$ool 1 a compromise between t%e first 2 sc%ools and submits t%at international law is binding partl& because it is good and rig%t and partl& because states agreed to be bound b& it. Di i"ion" of International Law ,. Laws of Peace 1 normal relations between states in t%e absence of war. 2. Laws of War 1 relations between %ostile or belligerent states during wartime. 8. Laws of Neutrality 1 relations between a non7 participant state and a participant state during wartime. 3%is also refers to t%e relations among non7 participating states.
d.
8.A 4ovenant of t%e League of Nations Bincl. 3reat& of Dersailles ending @@IA created t%e Permanent 4ourt of International +ustice. =.A !ounding of EN in aftermat% of @@II. /%ift of power awa& from ;urope and beginning of trul& universal institution. Eniversali'ation advanced b& decoloni'ation w%ic% resulted in e<pansion of members%ip of EN. New states0 carr&ing a legac& of bitterness against colonial powers0 became members. >.A 4old @ar period succeeded in maintaining peace t%roug% balancing of 2 super powers. F.A Dissolution of /oviet Enion resulting in end of 4old @ar wit% re7emergence of intGl relations based on multiple sources of power and not mainl& ideolog&. Pu!lic and Pri ate International Law Distinction s%ould be made between t%e twoH Pu!lic IL+ sometimes referred to onl& as IL0 governs relations%ips bet and among states and also t%eir relations wit% international orgs and individual persons. Pri ate IL+ more commonl& called conflict of laws0 is reall& domestic law. It deals wit% cases w%ere foreign law intrudes in t%e domestic sp%ere w%ere t%ere are Iuestions of applicabilit& of foreign law or t%e role of foreign courts. c. Ba"i" of International Law , -c$ool" of T$ou#$t" [#hy are
binding%]
rules of international la$
Relation Between Internation Law and /unici)al Law
,. Naturalist 1 PIL is a branc% of t%e great law of nature 1 t%e sum of t%ose principles w%ic% oug%t to control %uman conduct0 being founded on t%e ver& nature of man as a rational and social being. 6Hugo ?rotius9 PIL is binding upon /tates Law of Nature -c$ool 1 based on rules of conduct discoverable b& ever& individual in %is own conscience and t%roug% application of rig%t reasons. 2. &ositi ist 1 Basis is to be found in t%e consent and conduct of /tates. 'acit consent in t%e case of customar& international law. ()press in conventional law. &resumed in t%e general law of nations. 64ornelius van B&n(ers%oe(9
%ro& t$e View)oint of Doctrine ,. Dualists 1 International Law and unicipal Law are two completel& separate realms. See distinctions Nos. +,- ./. , International Law is a law of coordination0 being t%e result of agreement among t%e eIual states forming t%e famil& of nationsJ /unici)al law is a law of subordination0 being a command issued b& a political superior to t%ose sub5ect to its aut%orit&. International Law regulates t%e relation of states and ot%er international personsJ /unici)al law regulates t%e relations of individuals among t%emselves or wit% t%eir state. International Law is derived principall& from treaties0 international customs0 and general principles of lawJ /unici)al law consists mainl& of statutor& enactments0 and to a lesser e<tent orders and 5udicial pronouncements. International law is enforced0 generall&

Page , of 29
spea(ing0 b& t%e sub5ect t%emselves t%roug% met%ods of self7%elp Bthe use of one0s o$n efforts
and resources to achie e things $ithout relying on others.AJ /unici)al law is enforced b& a regular
-ecretar2 Of 3u"tice v. 3ud#e Lantion and

3i&ene4 5.R 1,6789: 1; 3an. *<<<= %ACT-+ : possible conflict between t%e E/7RP ;<tradition 3reat& and P%ilippine law I--UE+ @2N0 under t%e Doctrine of Incorporation0 International Law prevails over unicipal Law (ELD+ N2. Ender t%e doctrine of incorporation0 rules of international law form part of t%e law of t%e land and no furt%er legislative action is needed to ma(e suc% rules applicable in t%e domestic sp%ere. 3%e doctrine of incorporation is applied w%enever local courts are confronted wit% situations in w%ic% t%ere appears to be a conflict between a rule of international law and t%e provisions of t%e local stateGs constitutionLstatute. !irst0 efforts s%ould first be e<erted to %armoni'e t%em0 so as to give effect to bot%. 3%is is because it is presumed t%at municipal law was enacted wit% proper regard for t%e generall& accepted principles of international law in observance of t%e incorporation clause. However0 if t%e conflict is irreconcilable and a c%oice %as to be made between a rule of international law and municipal law0 5urisprudence dictates t%at t%e municipal courts s%ould up%old municipal law. 3%is is because suc% courts are organs of municipal law and are accordingl& bound b& it in all circumstances. 3%e fact t%at international law was made part of t%e law of t%e land does not pertain to or impl& t%e primac& of international law over nationalLmunicipal law in t%e municipal sp%ere. 3%e doctrine of incorporation0 as applied in most countries0 decrees t%at rules of international law are given eIual standing wit%0 but are not superior to0 national legislative enactments. In case of conflict0 t%e courts s%ould %armoni'e bot% laws first and if t%ere e<ists an unavoidable contradiction between t%em0 t%e principle of le" posterior derogat priori 7 a treat& ma& repeal a statute and a statute ma& repeal a treat& 7 will appl&. But if t%ese laws are found in conflict wit% t%e 4onstitution0 t%ese laws must be stric(en out as invalid. In states w%ere t%e constitution is t%e %ig%est law of t%e land0 suc% as in ours0 bot% statutes and treaties ma& be invalidated if t%e& are in conflict wit% t%e constitution. /upreme 4ourt %as t%e power to invalidate a treat& 1 /ec. >B2ABaA0 :rt. DIII0 ,9.- 4onstitution
>
and pre7e<isting mac%iner& for t%e administration of 5ustice. International Law usuall& entails collective responsibilit&J /unici)al law entails individual responsibilit&. unicipal Law are
2.
onists 1 Denies t%at PIL and essential different.
In bot% laws0 it is t%e individual persons w%o in t%e ultimate anal&sis are regulated b& t%e law. 3%at bot% laws are far from being essentiall& different and must be regarded as parts of t%e same 5uristic conception. !or t%em t%ere is oneness or unit& of all laws. PIL is superior to municipal lawK international law0 being t%e one w%ic% determines t%e 5urisdictional limits of t%e personal and territorial competence of /tates. %ro& t$e View)oint of Practice 1. International Tri!unal" PIL superior to unicipal Law :rt. 2-0 Dienna 4onvention in t%e law of 3reaties 1 : state )ma& not invo(e t%e provisions of its internal law as 5ustification for its failure to perform a treat&* /tate legall& bound to observe its treat& obligations0 once signed and ratified 2. unicipal /p%ere 1 depends on w%at doctrine is followedH Doctrine of Incor)oration 0 Rules of international law form part of t%e law of t%e land and no furt%er legislative action is needed to ma(e suc% rules applicable in t%e domestic sp%ere. 1Sec. of 2ustice . "antion *3N +-4/56, 2an. +7, 8999: 3%is is followed in t%e P%ilippinesH :rt. II0 /ec. 2 1 ) The Philippinesadopts the generally accepted principles of international law as part of the law of the land However, no pri acy is i plied! 1+ W$at are t$e"e #enerall2 acce)ted )rinci)le" A+ Pacta sunt servanda0 sovereign eIualit& among states0 principle of state immunit&J rig%t of states to self7defense

Page 7 of 29
ma(e in its legislations suc% modifications as ma& be necessar& to ensure t%e fulfillment of t%e obligations. B& t%eir in%erent nature0 treaties reall& limit or restrict t%e absoluteness of sovereignt&. B& t%eir voluntar& act0 nations ma& surrender some aspects of t%eir state power in e<c%ange for greater benefits granted b& or derived from a convention or pact. :fter all0 states0 li(e individuals0 live wit% coeIuals0 and in pursuit of mutuall& covenanted ob5ectives and benefits0 t%e& also commonl& agree to limit t%e e<ercise of t%eir ot%erwise absolute rig%ts. 3%us0 treaties %ave been used to record agreements between /tates concerning suc% widel& diverse matters as0 for e<ample0 t%e lease of naval bases0 t%e sale or cession of territor&0 t%e termination of war0 t%e regulation of conduct of %ostilities0 t%e formation of alliances0 t%e regulation of commercial relations0 t%e settling of claims0 t%e la&ing down of rules governing conduct in peace and t%e establis%ment of international organi'ations. 3%e sovereignt& of a state t%erefore cannot in fact and in realit& be considered absolute. 4ertain restrictions enter into t%e pictureH B,A limitations imposed b& t%e ver& nature of members%ip in t%e famil& of nations and B2A limitations imposed b& treat& stipulations. ;'anada . Angara, 8<8 SC3A +7, May 8, +44< 1&anganiban:= Doctrine of Tran"for&ation ?Legislative action is reIuired to ma(e t%e treat& enforceable in t%e municipal sp%ere. ?enerall& accepted rules of international law are not per se binding upon t%e state but must first be embodied in legislation enacted b& t%e lawma(ing bod& and so transformed into municipal law. 3%is doctrine runs counter :rt. II0 /ec. 20 of t%e ,9.- 4onstitution. : reading of t%e case of Muroda v +alandoni0 6?RN L7 2FF2 arc% 2F0 ,9=990 one ma& sa& t%at /upreme 4ourt e<pressl& ruled out t%e Doctrine of 3ransformation w%en t%e& declared t%at generall& accepted principles of international law form a part of t%e law of our nation even if t%e P%ilippines was not a signator& to t%e convention embod&ing t%em0 for our 4onstitution %as been deliberatel& general and e<tensive in its scope and is not confined to t%e recognition of rules and principles of international law as contained in treaties to w%ic% our government ma& %ave been or s%all be a signator&. Pacta -unt -er anda International agreements must be performed in ?ood !ait%. : treat& engagement is not a mere moral obligation but creates a legall& binding obligation on t%e parties. : state w%ic% %as contracted a valid international obligation is bound to ma(e in its legislation suc% modifications as ma& be necessar& to
1+ W$at i" t$e doctrine of incor)oration> (ow i" it a))lied !2 local court"> (eld+ Ender t%e doctrine of incorporation0 rules of international law form part of t%e law of t%e land and no furt%er legislative action is needed to ma(e suc% rules applicable in t%e domestic sp%ere. 3%e doctrine of incorporation is applied w%enever municipal tribunals Bor local courtsA are confronted wit% situations in w%ic% t%ere appears to be a conflict between a rule of international law and t%e provisions of t%e 4onstitution or statute of t%e local state. ;fforts s%ould first be e<erted to %armoni'e t%em0 so as to give effect to bot% since it is to be presumed t%at municipal law was enacted wit% proper regard for t%e generall& accepted principles of international law in observance of t%e Incorporation 4lause in /ection 20 :rticle II of t%e 4onstitution. In a situation %owever0 w%ere t%e conflict is irreconcilable and a c%oice %as to be made between a rule of international law and municipal law0 5urisprudence dictates t%at municipal law s%ould be up%eld b& t%e municipal courts for t%e reason t%at suc% courts are organs of municipal law and are accordingl& bound b& it in all circumstances. 3%e fact t%at international law %as been made part of t%e law of t%e land does not pertain to or impl& t%e primac& of international law over national or municipal law in t%e municipal sp%ere. 3%e doctrine of incorporation0 as applied in most countries0 decrees t%at rules of international law are given eIual standing wit%0 but are not superior to0 national legislative enactments. :ccordingl&0 t%e principle of le< posterior derogat priori ta(es effect 1 a treat& ma& repeal a statute and a statute ma& repeal a treat&. In states w%ere t%e 4onstitution is t%e %ig%est law of t%e land0 suc% as t%e Republic of t%e P%ilippines0 bot% statutes and treaties ma& be invalidated if t%e& are in conflict wit% t%e 4onstitution. B/ecretar& of +ustice v. Hon. Ralp% 4. Lantion0 ?.R. No. ,89=F>0 +an. ,.0 2CCC0 ;n Banc 6 elo9A 1+ I" "o erei#nt2 reall2 a!"olute and all0 enco&)a""in#> If not: w$at are it" re"triction" and li&itation"> (eld+ @%ile sovereignt& %as traditionall& been deemed absolute and all7encompassing on t%e domestic level0 it is %owever sub5ect to restrictions and limitations voluntaril& agreed to b& t%e P%ilippines0 e<pressl& or impliedl&0 as a member of t%e famil& of nations. B& t%e doctrine of incorporation0 t%e countr& is bound b& generall& accepted principles of international law0 w%ic% are considered to be automaticall& part of our own laws. 2ne of t%e oldest and most fundamental rules in international law is pacta sunt servanda 1 international agreements must be performed in good fait%. : state w%ic% %as contracted valid international obligations is bound to

Page 9 of 29
b. /econdar&
ensure t%e fulfillment of t%e obligations underta(en. Ta@ada ". An#ara .RN 11;*69 /a2 *: 166A
@%ile sovereignt& %as traditionall& been deemed absolute and all encompassing on t%e domestic level0 it is ho$e er subject to restrictions and limitations voluntaril& agreed to b& t%e P%ilippines0 e<pressl& or impliedl& as a member of t%e famil& of nations. 3%e 4onstitution does not envision a %ermit t&pe isolation of t%e countr& from t%e rest of t%e world. B& t%e doctrine of incorporation0 t%e countr& is bound b& generall& accepted principles of international law0 w%ic% are considered to be automaticall& part of our own laws. 3%e constitutional polic& of a Nself7reliant and independent national econom&N does not necessaril& rule out t%e entr& of foreign investments0 goods and services. It contemplates neit%er )economic seclusionN nor Nmendicanc& in t%e international communit&.N
#rticle $% of the &tatute of the 'nternational (ourt of )ustice *'()+ directs t%at t%e following be considered before deciding a caseH #! Pri ary I. 3reaties or International 4onventions II. International 4ustom III. ?eneral Principles of Law Recogni'ed b& 4ivili'ed Nations ,! &econdary ID. +udicial Decisions D. 3eac%ings of aut%oritative publicists a. a. Pri&ar2 Treat2'international con ention" 7 ?enerall&0 a treat& onl& binds t%e parties. However0 treaties ma& be considered a direct source of International law w%en concluded b& a si'able number of /tates0 and is reflective of t%e will of t%e famil& of nations Bin w%ic% case0 a treat& is evidence of customA. * BIND-+ ,. 4ontract 3reaties 6'raite>Contrat9 1 Bilateral arrangements concerning matters of particular or special interest to t%e contracting parties /ource of )Particular International Law* BE3H a& become primar& sources of international law w%en different contract treaties are of t%e same nature0 containing practicall& uniform provisions0 and are concluded b& a substantial number of /tates ;O.H ;<tradition 3reaties 2. Law7 a(ing 3reat& 6'raite>"oi9 1 4oncluded b& a large number of /tates for purposes ofH ,. Declaring0 confirming0 or defining t%eir understanding of w%at t%e law is on a particular sub5ectJ 2. /tipulating or la&ing down new general rules for future international conductJ 8. 4reating new international Institution b. Cu"to& 1 ?eneral and consistent practice of states followed b& t%em from a sense of legal obligation.
Conce)t of -o erei#nt2 a" Autoli&itation @%en t%e P%ilippines 5oined t%e Enited Nations as one of its >, c%arter members0 it consented to restrict its sovereign rig%ts under t%e Nconcept of sovereignt& as autolimitation. 1+ A treat2 wa" concurred !etween RP and C$ina. Later: a law wa" )a""ed w$ic$ $a" conflictin# )ro i"ion" wit$ t$e treat2. Rule. A+ : treat& is part of t%e law of t%e land. But as internal law0 it would not be superior to a legislative act0 rat%er it would be in t%e same class as t%e latter. 3%us0 t%e latter law would be considered as amendator& of t%e treat&0 being a subseIuent law under t%e principle le) posterior derogat priori. B:bbas vs. 42 ;L;4A
e.
%unction" of International Law ,. promote international peace and securit&J 2. foster friendl& relations among nations and discourage use of force in resolution of difference among t%emJ 8. provide for orderl& regulation of conduct of states in t%eir mutual dealingsJ and =. ensure international cooperation in pursuit of certain common purposes of economic0 social0 cultural0 or %umanitarian c%aracter.
*. -ource" of International Law a. Primar&

Page 8 of 29
Be.g.0 determining w%at rules of customar& International Law e<istA t%at is acceptable so long as t%e& correctl& interpret and appl& international law. 3%e doctrine of stare decisis is not applicable in international law per :rt.>9 of t%e I4+ w%ic% states t%at )3%e decision of t%e 4ourt %as no binding force e<cept between t%e parties and in respect to t%at particular case.* 3%is means t%at t%ese decisions are not a direct source0 but t%e& do e<ercise considerable influence as an impartial and well7considered statement of t%e law b& 5urists made in t%e lig%t of actual problems w%ic% arise before t%em0 and t%us0 accorded wit% great respect. 3%is includes decisions of national courts0 alt%oug% t%e& are not a source of law0 t%e cumulative effect of uniform decisions of t%e courts of t%e most important /tates is to afford evidence of international custom. NOTE+ ;ven decisions of national courts0 w%en appl&ing international law0 are acceptable. ()ample: Principles on diplomatic immunit& %ave been developed b& 5udgments of national courts. b. Teac$in#" of t$e /o"t (i#$l2 1ualified Pu!lici"t" 7 3%e word PPublicistP means Plearned writer.P Learned writings0 li(e 5udicial decisions0 can be evidence of customar& law0 and can also pla& a subsidiar& role in developing new rules of law. /uc% wor(s are resorted to b& 5udicial tribunals not for t%e speculation of t%eir aut%ors concerning w%at t%e law oug%t to be0 but for trustwort%& evidence of w%at t%e law reall& is. 6 r. +ustice ?ra& in PaIuete Habana case0 ,-> E./. F--.9 ReCui"ite" for (i#$l2 1ualified Pu!lici"t ,. !air and impartial representation of law. 2. B& an ac(nowledged aut%orit& in t%e field. 1+ -tate 2our #eneral under"tandin# of t$e )ri&ar2 "ource" and "u!"idiar2 "ource" of international law: #i in# an illu"tration of eac$. D*<<, BarE A+ Ender :rticle 8. of t%e /tatute of International 4ourt of +ustice0 t%e primar& sources of international law are t%e following+ ,. International conventions0 e.g. Dienna 4onvention on t%e Law of 3reaties. 2. International customs0 e.g. cabotage0 t%e pro%ibition against slaver&0 and t%e pro%ibition against torture. 8. ?eneral principles of law recogni'ed b& civili'ed nations0 e.g. prescription0 res 5udicata0 and due
* Ele&ent"+ i. -tate Practice 1 a consistent and uniform e<ternal conduct of /tates. ?enerall&0 bot% w%at states say and w%at t%e& do are considered state practice. ii. O)inio 3uri" 7 /tate practice must be accompanied wit% t%e conviction t%at t%e /tate is legally obligated to do so b& intPl law0 and not t%roug% mere courtes& or comit&0 or because of %umanitarian considerations. It e<ists w%en a clear and continuous %abit of doing certain t%ings develops under t%e 42NDI43I2N t%at it is obligator& and rig%t. 3%is conviction is called )O)inio 3uri"* @%en t%ereGs no conviction t%at it is obligator& and rig%t0 t%ereGs onl& a U"a#e. Esage is also a usual course of conduct0 a long7establis%ed wa& of doing t%ings b& /tates. 3o elevate a mere usage into one of a customar& rule of international law0 t%ere must be a degree of constant and uniform repetition over a period of time coupled wit% opinio juris. c. .eneral Princi)le" of Law 7 Principles common to most national s&stems of lawJ rules based on natural 5ustice. ()amplesH good fait%0 estoppel0 e<%austion of local remedies /alonga opines t%at resort is ta(en from general principles of law w%enever no custom or treat& provision is applicable. 3%e idea of )civili'ed nations* was intended to restrict t%e scope of t%e provision to ;uropean /tates0 %owever0 at present t%e term no longer %ave suc% connotation0 t%us t%e term s%ould include all nations. ;<amples of general principles areH estoppel, pacta sunt ser anda, consent, res judicata and prescription? including t%e principles of 5ustice0 eIuit& and peace. !. a. -econdar2 3udicial Deci"ion" 7 a subsidiar& means for t%e determination of rules of law

Page A of 29
,. Per"onalitie" under Law a. /tates b. International 2rgani'ations c. Individuals and 4orporations International
process. 3%e subsidiar& sources of international law are 5udicial decisions0 sub5ect to t%e provisions of :rticle >90 e.g.0 t%e decision in t%e :nglo7Norwegian !is%eries 4ase and Nicaragua v. E/0 and teac%ings of t%e most %ig%l& Iualified publicists of various nations0 e.g.0 Human Rig%ts in International Law b& Lauterpac%t and International Law b& 2ppen%eim7Lauterpac%t. Alternati e A+ Reflecting general international law0 :rticle 8.B,A of t%e /tatute of International 4ourt of +ustice is understood as providing for international convention0 international custom0 and general principles of law as primar& sources of international law0 w%ile indicating t%at 5udicial decisions and teac%ings of t%e most %ig%l& Iualified publicists as )subsidiar& means for t%e determination of t%e rules of law.* 3%e primar& sources ma& be considered as formal sources in t%at t%e& are considered met%ods b& w%ic% norms of international law are created and recogni'ed. : conventional or treat& norm and a customar& norm is t%e product of t%e formation of general practice accepted as law. B& wa& of illustrating international 4onvention as a source of law0 we ma& refer to t%e principle embodied in :rticle F of t%e Dienna 4onvention on t%e Law on 3reaties w%ic% readsH );ver& /tate possesses capacit& to conclude treaties.* It tells us w%at t%e law is and t%e process or met%od b& w%ic% it cam into being. International 4ustom ma& be concretel& illustrated b& pacta sunt ser anda0 a customar& or general norm w%ic% came about t%roug% e<tensive and consistent practice b& a great number of states recogni'ing it as obligator&. 3%e subsidiar& means serves as evidence of law. : decision of t%e International 4ourt of +ustice0 for e<ample0 ma& serve as material evidence confirming or s%owing t%at t%e pro%ibition against t%e use of force is a customar& norm0 as t%e decision of t%e 4ourt %as demonstrated in t%e Nicaragua 4ase. 3%e status of a principle as a norm of international law ma& find evidence in t%e wor(s of %ig%l& Iualified publicists in international law0 suc% as cNair0 Melsen or 2ppen%eim. -. What is /'N&T#NT/ (0&T123 AH 4ustomar& law ma& emerge even wit%in a relati el2 "$ort )eriod of ti&e0 if wit%in t%at period0 /tate Practice %as been uniform and e<tensive. It comes about as a ")ontaneou" acti it2 of a #reat nu&!er of "tate" "u))ortin# a ")ecific line of action.
7entit& t%at %as rig%ts and responsibilities under international law and %aving capacit& to maintain its rig%ts b& bringing international claims0 includesH ,. /tates0 independent and dependentJ 2. 4olonies and dependenciesJ 8. andates and trust territoriesJ =. 3%e DaticanJ >. 3%e Enited NationsJ F. Belligerent 4ommunitiesJ -. International administrative BodiesJ and .. Individuals0 to a certain e<tent. 1. W$o are t$e "u!Fect" of International Law> :. /ub5ects of international law are t%ose recogni'ed as capable of possessing rig%ts and duties and of bringing international claims. ?enerall&0 onl& /tates are recogni'ed to be sub5ects of international law because ofH B,A it possessing rig%ts anc%ored on /tate responsibilit&J and B2A its abilit& to bring fort% claims against ot%er /tates. However0 as will be s%own0 ot%er entities suc% as corporations0 international organi'ations0 and individuals now %ave certain mec%anisms b& w%ic% t%eir claims ma& be broug%t fort% international tribunals or courts. A. -TATE-
1+ W$at i" a "tate> (ow are "tate" cla""ified a" "u!Fect" of international law> A+ : state is a group of people0 more or less numerous0 permanentl& living in a definite territor&0 under an independent government organi'ed for political ends and capable of entering into legal relations wit% ot%er states. 1. W$at i" a -tate> :. :ccording to :rt. , of t%e ontevideo 4onvention0 a state is one wit% t%e following IualificationsH BaA a permanent populationJ BbA defined territor&J BcA governmentJ and BdA capacit& to enter into relations. 1. W$at are t$e "tandard" for eac$ reCui"ite of -tate$ood> BaA Population. no numerical reIuirementJ so long as t%e& are capable of maintaining and governing t%emselves0 a population ma& be %ad. BbA 4efined territory: t%ere is no minimum amount of territor& reIuiredJ so long as t%ere is a place w%ere t%e population could occup& and function in0 a defined territor& is present BcA 5overn ent: t%ere is no specified (ind or t&pe of government reIuiredJ so long as it e<ercises sovereignt& and supremac& wit%in0 a

Page ; of 29
ot%er nation %as not e<plicitl& or implicitl& protested certain c%arges. : person w%o %as been broug%t wit%in t%e 5urisdiction of t%e court b& virtue of proceedings under an e<tradition treat&0 can onl& be tried for one of t%e offences described in t%at treat&0 and for t%e offence wit% w%ic% %e is c%arged in t%e proceedings for %is e<tradition0 until a reasonable time and opportunit& %ave been given %im0 after %is release or trial upon suc% c%arge0 to return to t%e countr& from w%ose as&lum %e %ad been forcibl& ta(en under t%ose proceedings. 6Enited /tates v. Rausc%er0 ,,9 E./. =C- BE./. ,..FA9
government is present BdA (apacity to enter into relations: power and rig%t to enter into foreign relations wit%out restraint from anot%er entit&. B. INTERNATIONAL OR.ANIGATION-
1. (ow are International Or#ani4ation" "u!Fect" of international law> :. /ome international organi'ations %ave t%e abilit& to ma(e claims under international law. However0 suc% abilit& is limited b& t%e organi'ationGs c%arter. !or e<ample0 t%e E.N.0 in 3eparations for !njuries Suffered in the Ser ice of the @nited Nations 0 was able to sue for damages caused to an agent t%roug% an international claim. @%ile it does not %ave t%e same rig%ts and duties as /tates0 it %as t%e legal capacit& to do )w%at is necessar&* in t%e e<ercise of its functions and fulfilment of its purposes. B:rt. ,C=0 EN 4%arterA !nternational Arganization ;!A=: :n organi'ation t%at is set up b& treat& among 2 or more states. (stablishment: 3%e constituent document of I2s is a treat&. !or t%is reason0 onl& states are members of I2s. 3%e ob5ect of t%e treat& is to create new sub5ects of law endowed wit% a certain autonom&0 to w%ic% t%e parties entrust t%e tas( of reali'ing common goals. !nternational &ersonality: I2s are %eld to possess international personalit& 13eparations Case:. 3%e c%arter itself mig%t specificall& endow it wit% international personalit&. If it does not0 it ma& be implied b& t%e functions of t%e org. &o$ers and pri ileges: not t%e same as states. 3%e& are limited to t%e constituent instrument t%at created t%em. 3%e& do not li(e states possess a general competence. 3%e& are governed b& t%e 6principle of specialty: t%e& are invested b& t%e /tates w%ic% create t%em wit% powers0 t%e limits of w%ic% are a function of t%e common interests w%ose promotion t%ose /tates entrust to t%em. 3%e powers conferred ma& be b& an e<press statement in t%e constituent instrument or implied from t%at needed to ac%ieve t%eir ob5ectives 1Ad isory Apinion on the @se of Nuclear #eapons:.
Doctrine of /pecialt& is a principle of International law t%at is included in most e<tradition treaties0 w%ereb& a person w%o is e<tradited to a countr& to stand trial for certain criminal offenses ma& be tried onl& for t%ose offenses and not for an& ot%er pre7e<tradition offenses. 2nce t%e as&lum state e<tradites an individual to t%e reIuesting state under t%e terms of an e<tradition treat&0 t%at person can be prosecuted onl& for crimes specified in t%e e<tradition reIuest. 3%is doctrine allows a nation to reIuire t%e reIuesting nation to limit prosecution to declared offenses. E/ courts %ave been divided on allowing standing to assert t%e doctrine w%en t%e
C.
CORPORATION-
1. (ow are Cor)oration" "u!Fect" of international law> :. 4orporations0 in certain instances0 now %ave t%e abilit& to ma(e international claims before tribunals. 3%is is t%e case w%en w%at is entered into is an internationalized contract. @%en suc% contracts are entered into b& corporations0 it acIuires a limited capacit&0 b& invo(ing t%e rig%ts derived from t%e contract. Esuall&0 t%e medium b& w%ic% t%ese corporations ma& enforce t%eir rig%ts is arbitration. D. INDIVIDUAL-
1. (ow do indi idual" !eco&e "u!Fect" of international law> ,. @%ile t%e classical rule states t%at %umans are mere objects of international la$ Bbeneficiaries of rig%ts provided b& instruments suc% as international %uman rig%ts treatiesA0 t%e& are now considered as subjects0 alt%oug% in a limited wa&. :s a sub5ect0 not onl& ma& one bring claims0 %eLs%e also ma& be %eld accountable under international law. In t%e I440 for e<ample0 individuals ma& be tried for t%e commission of t%e core crimes0 w%ic% areH ;a= genocide? ;b= crimes against humanity? ;c= $ar crimes? and ;d= crimes of aggression. Belli#erent Co&&unit2 1 group of rebels under an organi'ed civil government w%o %ave ta(en up arms against legitimate government. @%en recogni'ed0 considered as a separate state for purposes of conflict and entitled to all rig%ts and sub5ected to all obligations of a full7pledged belligerent under laws of war. United Nation" 1 international organi'ation created at /an !rancisco 4onference %eld in t%e E/ from :pril 2> to +une 2F0 ,9=>. EN succeeded t%e League of Nations and is governed b& a c%arter t%at came into force on 2ctober 2=0 ,9=>. 7. -tate a" H"u!Fect"I of International Law a. 4%aracteristics of a /tate b. 4reation and ;<tinction of a /tate c. 4lassifications of /tates

Page 6 of 29
,. Rig%t to /overeignt& and IndependenceJ 2. Rig%t to Propert& and +urisdictionJ 8. Rig%t to ;<istence and /elf7Defense =. Rig%t to ;Iualit& >. Rig%t to Diplomatic Intercourse -u!Fect Defined : /ub5ect is an entit& t%at %as an international personalit&. :n entit& %as an international personalit& if it can directl& enforce its rig%ts and duties under international law. @%ere t%ere is no direct enforcement of accountabilit& and an intermediate agenc& is needed0 t%e entit& is merel& an ob5ect not a sub5ect of international law. 1+ W$en doe" an entit2 acCuire international )er"onalit2> A+ @%en it %as rig%t and duties under international lawJ can directl& enforce its rig%tsJ and ma& be %eld directl& accountable for its obligations. O!Fect" Defined :n 2b5ect is a person or t%ing in respect of w%ic% rig%ts are %eld and obligations assumed b& t%e /ub5ect. 3%us0 it is not directl& governed b& t%e rules of international law. 3%ere is no direct enforcement and accountabilit&. :n intermediate agenc&Kt%e /ub5ectK is reIuired for t%e en5o&ment of its rig%ts and for t%e disc%arge of its obligations. Di"tinction !etween a "u!Fect and o!Fect of international law ,. -u!Fect 0 :n entit& t%at %as rig%ts and responsibilities under international lawJ it can be a proper part& in transactions involving t%e application of international law among members of t%e international communit&. 2. O!Fect 7 : person or t%ing in respect of w%ic% rig%ts are %eld and obligations assumed b& t%e sub5ectJ it is not directl& governed b& t%e rules of international lawJ its rig%ts are received0 and its responsibilities imposed0 indirectl& t%roug% t%e instrumentalit& of an international agenc&.
NOTE+ ?iven t%e trend in International Law toda&0 wit% t%e birt% of t%e I44 and :rbitration 4ourts0 t%e line between a /ub5ect and 2b5ect of International Law is increasingl& being blurred.
d. Recognition of /tates e. !undamental Rig%ts of a /tate /ub5ect Defined 2b5ect Defined TwoD*E Conce)t" of -u!Fect" of International Law , 3raditional 4oncept 2 4ontemporar& 4oncept -tate a" -u!Fect" of International Law a. C$aracteri"tic"'Ele&ent" of a -tate +.&eople 8.'erritory -.*o ernment aE * Jind" B,ADe +ure B2ADe !acto 1 8 (inds !E * function" B,A4onstituent B2A inistrant cE Effect" of c$an#e in #o ern&ent /. So ereignty aA Minds bA 4%aracteristics cA ;ffects of c%ange in sovereignt& !. Creation and EKtinction of a -tate Principle of /tate 4ontinuit& c. Cla""ification of -tate" d. Reco#nition Level of Recognition A. Reco#nition of -tate 0 * -c$ool" of T$ou#$t a. 4onstitutive /c%ool b. Declarator& /c%ool B.Reco#nition of .o ern&ent a. 4riteria for Recognition ,. 2b5ective 3est 1 2./ub5ective 3est BaA3obarL@ilson Doctrine BbA;strada Doctrine b. Minds of Recognition ,.De +ure 2.De !acto c. 4onseIuences of Recognition of ?overnment C. Reco#nition of Belli#erenc2 a. Belligerenc& b. 2 /enses of Belligerenc& c. ReIuisites of Belligerenc& d. 4onseIuences of Recognition of Belligerents e. !orms of Recognition e. %unda&ental Ri#$t" of -tate"
-UB3ECT- O% INTERNATIONAL LAW Two D*E Conce)t"+ 1. Traditional conce)t 2nl& /tates are considered sub5ects of international law.

Page 1< of 29
government to ta(e up wit% t%e Hol& /ee t%e validit& of its claims. 2f course0 t%e !oreign 2ffice s%all first ma(e a determination of t%e impact of its espousal on t%e relations between t%e P%ilippine government and t%e Hol& /ee. 2nce t%e P%ilippine government decides to espouse t%e claim0 t%e latter ceases to be a private cause. :ccording to t%e Permanent 4ourt of International +ustice0 t%e forerunner of t%e International 4ourt of +usticeH )B& ta(ing up t%e case of one of its sub5ects and b& resorting to diplomatic action or international NotesH 5udicial proceedings on %is be%alf0 a /tate is in realit& asserting its own rig%ts 1 its rig%t to ensure0 in t%e person of its sub5ects0 respect for t%e rules of international law.* B3%e avrommatis Palestine 4oncessions0 , Hudson0 @orld 4ourt Reports 2980 8C2 6,92=9A BHol& /ee0 3%e v. Rosario0 +r.0 28. /4R: >2=0 >887>8=0 Dec. ,0 ,99=0 ;n Banc 6Quiason9A
*. Conte&)orar2 conce)t Individuals and international organi'ations are also sub5ects because t%e& %ave rig%ts and duties under international law. BLiang vs. People0 ?RN ,2>.F> 62F arc% 2CC,9A T$e -TATE a" "u!Fect of International Law /tate is a communit& of persons more or less numerous0 permanentl& occup&ing a definite portion of territor&0 independent of e<ternal control0 and possessing an organi'ed government to w%ic% t%e great bod& of in%abitants render %abitual obedience. 1+ 3%e +apanese government confirmed t%at during t%e /econd @orld @ar0 !ilipinas were among t%ose conscripted as )comfort women* BprostitutesA for +apanese troops in various parts of :sia. 3%e +apanese government %as accordingl& launc%ed a goodwill campaign and offered t%e P%ilippine government substantial assistance for a program t%at will promote t%roug% government and non7 governmental organi'ation womenGs rig%ts0 c%ild welfare0 nutrition and famil& %ealt% care. :n e<ecutive agreement is about to be signed for t%at purpose. 3%e agreement includes a clause w%ereb& t%e P%ilippine government ac(nowledges t%at an& liabilit& to t%e comfort women or t%eir descendants are deemed covered b& t%e reparations agreements signed and implemented immediatel& after t%e /econd @orld @ar. +ulian Iglesias0 descendant of now deceased comfort woman0 see(s &ou advise on t%e validit& of t%e agreement. :dvise %im. B,992 BarA A+ 3%e agreement is valid. 3%e comfort woman and t%eir descendant cannot assert individual claims against +apan. :s stated in Paris oore v. Reagan0 =>8 E/ F>=0 t%e sovereign aut%orit& of t%e state to settle claims of its nationals against foreign countries %as repeatedl& been recogni'ed. 3%is ma& be made wit%out t%e consent of t%e nationals or even wit%out consultation wit% t%em. /ince t%e continued amit& between t%e /tate and ot%er countries ma& reIuire a satisfactor& compromise of mutual claims0 t%e necessar& power to ma(e suc% compromise %as been recogni'ed. 3%e settlement of suc% claims ma& be made b& e<ecutive agreement. 1+ W$at &u"t a )er"on w$o feel" a##rie ed !2 t$e act" of a forei#n "o erei#n do to e")ou"e $i" cau"e>
HeldH Ender bot% Public International Law and 3ransnational Law0 a person w%o feels aggrieved b& t%e acts of a foreign sovereign can as( %is own government to espouse %is cause t%roug% diplomatic c%annels. Private respondent can as( t%e P%ilippine government0 t%roug% t%e !oreign 2ffice0 to espouse its claims against t%e Hol& /ee. Its first tas( is to persuade t%e P%ilippine
1+ W$at i" t$e "tatu" of an indi idual under )u!lic international law> D16;1 BarE A+ :ccording to Han(s Melson0 )w%ile as a general rule0 international law %as as its sub5ects states and obliges onl& immediatel&0 it e<ceptionall& applies to individuals because it is to man t%at t%e norms of international law appl&0 it is to man w%om t%e& restrain0 it is to man w%o0 international law t%rusts t%e responsibilities of law and order.* 1+ I" t$e Vatican Cit2 a "tate> A+ R;/S (ol2 -ee v. Ro"ario 5.R 1<1676: <1 Dec. 1667=
3%e Lateran 3reat& establis%ed t%e /3:3;H22D of t%e Datican 4it& )for t%e purpose of assuring to t%e Hol& /ee absolute and visible independence and of guaranteeing to it indisputable sovereignt& also in t%e field of international relations*. !rom t%e wordings of t%e Lateran 3reat&0 it is difficult to determine w%et%er t%e state%ood is vested in t%e Hol& /ee or in t%e Datican 4it&. 3%e Datican 4it& fits into none of t%e establis%ed categories of states0 and t%e attribution to it of )sovereignt&* must be made in a sense different from t%at in w%ic% it is applied to ot%er states. 3%e Datican 4it& represents an entit& organi'ed not for political but for ecclesiastical purposes and international ob5ects. Despite its si'e and ob5ect0 it %as an independent government of its own0 wit% t%e Pope0 w%o is also %ead of t%e Roman 4at%olic 4%urc%0 as t%e Hol& /ee or Head of /tate0 in conformit& wit% its traditions0 and t%e demands of its mission. Indeed0 its world7wide interests and activities are suc% as to

Page 11 of 29
ma(e it in a sense an )international state*. It was noted t%at t%e recognition of t%e Datican 4it& as a state %as significant implication 1 t%at it is possible for an& entit& pursuing ob5ects essentiall& different from t%ose pursued b& states to be invested wit% international personalit&. /ince t%e Pope prefers to conduct foreign relations and enter into transactions as t%e Hol& /ee and not in t%e name of t%e Datican 4it&0 one can conclude t%at in t%e PopePs own view0 it is t%e Hol& /ee t%at is t%e international person. 3%e P%ilippines %as accorded t%e Hol& /ee t%e status of a foreign sovereign. 3%e Hol& /ee0 t%roug% its :mbassador0 t%e Papal Nuncio0 %as %ad diplomatic representations wit% t%e P%ilippine government since ,9>-. 3%is appears to be 2ne aut%orit& wrote t%at t%e recognition of t%e Datican 4it& as a state %as significant implication 7 t%at it is possible for an& entit& pursuing ob5ects essentiall& different from t%ose pursued b& states to be invested wit% international personalit&. Inasmuc% as t%e Pope prefers to conduct foreign relations and enter into transactions as t%e Hol& /ee and not in t%e name of t%e Datican 4it&0 one can conclude t%at in t%e PopePs own view0 it is t%e Hol& /ee t%at is t%e international person. 3%e Republic of t%e P%ilippines %as accorded t%e Hol& /ee t%e status of a foreign sovereign. 3%e Hol& /ee0 t%roug% its :mbassador0 t%e Papal Nuncio0 %as %ad diplomatic representations wit% t%e P%ilippine government since ,9>-. 3%is appears to be t%e universal practice in international relations. BHol& /ee0 3%e v. Rosario0 +r.0 28. /4R: >2=0 >887>8=0 Dec. ,0 ,99=0 ;n Banc 6Quiason9A
t%e universal practice in international relations.

1+ Di"cu"" t$e -tatu" of t$e Vatican and t$e (ol2 -ee in International Law. (eld+ Before t%e anne<ation of t%e Papal /tates b& Ital& in ,.-C0 t%e Pope was t%e monarc% and %e0 as t%e Hol& /ee0 was considered a sub5ect of International Law. @it% t%e loss of t%e Papal /tates and t%e limitation of t%e territor& under t%e Hol& /ee to an area of ,C..- acres0 t%e position of t%e Hol& /ee in International Law became controversial. In ,9290 Ital& and t%e Hol& /ee entered into t%e Lateran 3reat&0 w%ere Ital& recogni'ed t%e e<clusive dominion and sovereign 5urisdiction of t%e Hol& /ee over t%e Datican 4it&. It also recogni'ed t%e rig%t of t%e Hol& /ee to receive foreign diplomats0 to send its own diplomats to foreign countries0 and to enter into treaties according to International Law. 3%e Lateran 4it& )for t%e and visible indisputable relations.* 3reat& establis%ed t%e state%ood of t%e Datican purpose of assuring to t%e Hol& /ee absolute independence and of guaranteeing to it sovereignt& also in t%e field of international
1+ W$at i" a "tate> (ow are "tate" cla""ified a" "u!Fect" of international law> A+ : state is a group of people0 more or less numerous0 permanentl& living in a definite territor&0 under an independent government organi'ed for political ends and capable of entering into legal relations wit% ot%er states. "#$#" a. C$aracteri"tic of a -tate ,. Po)ulation ;a permanent population= people7refers to t%e %uman beings living wit% in its territor& 7s%ould be of bot% se<es and sufficient in number to maintain and perpetuate t%emselves 2. Territor2 ;a defined territory= territor&7fi<ed portion of t%e surface of t%e eart% in w%ic% t%e people of t%e state reside 7nomadic tribes and moving states do not possess t%is element 8. .o ern&ent 7 t%e agenc& t%roug% w%ic% t%e will of t%e state is formulated0 e<pressed and reali'ed necessar& in international law because t%e state must %ave an entit& to represent it in its relations wit% ot%er states 7t%e form of government does not matter provided it is able to maintain order wit%in t%e realm and compl& wit% its responsibilities under t%e law of nations. =. -o erei#nt2 7power of t%e state to direct its own e<ternal affairs wit%out interference or dictation from ot%er states
In view of t%e wordings of t%e Lateran 3reat&0 it is difficult to determine w%et%er t%e state%ood is vested in t%e Hol& /ee or in t%e Datican 4it&. /ome writers even suggested t%at t%e treat& created two international persons 7 t%e Hol& /ee and Datican 4it&. 3%e Datican 4it& fits into none of t%e establis%ed categories of states0 and t%e attribution to it of )sovereignt&* must be made in a sense different from t%at in w%ic% it is applied to ot%er states. In a communit& of national states0 t%e Datican 4it& represents an entit& organi'ed not for political but for ecclesiastical purposes and international ob5ects. Despite its si'e and ob5ect0 t%e Datican 4it& %as an independent government of its own0 wit% t%e Pope0 w%o is also %ead of t%e Roman 4at%olic 4%urc%0 as t%e Hol& /ee or Head of /tate0 in conformit& wit% its traditions0 and t%e demands of its mission in t%e world. Indeed0 t%e world7wide interests and activities of t%e Datican 4it& are suc% as to ma(e it in a sense an )international state.*

Page 1* of 29
a. protectorate7alwa&s retains a greater measure of control over its e<ternal affairs t%an su'eraint& b. -u4eraint27 a nation t%at controls
independence7 is onl& t%e e<ternal manifestation of sovereignt&0 w%ic% also embraces power over internal matters.
7t%e power of t%e state to administer its e<ternal affairs wit%out direction or interference from anot%er state. !. Creation and EKtinction of a -tate
anot%er nation in international affairs but allows it domestic sovereignt&

d. Reco#nition of -tate" 7 t%e free act b& w%ic% one or more states ac(nowledge t%e e<istence on a definite territor& of a %uman societ& politicall& organi'ed0 independent of an& e<isting state0 and capable of observing t%e obligations of international law0 and b& w%ic% t%e& manifest t%erefore t%eir intention to consider it a member of t%e international communit&. W$at are t$e t$eorie" of reco#nition of -tate"> B. 3%ere are twoH B,A constitutiveJ and B2A declarator&. 2n one %and0 t%e con"tituti e t$eor2 states that $hen a State is recognized by the international community as a state, then it is a State. 3%e declarator2 t$eor20 on t%e ot%er %and0 reBuires compliance $ith the four reBuisites of Statehood as laid do$n in the Monte ideo con ention for one to be recognized as a state.
Creation of a -tate 3%e generall& accepted met%ods b& w%ic% t%is status is acIuired areH ,. revolution7 e<. E./. 2. unification7 e<. Ital& 8. secession7 e<. Banglades% =. assertion of independence7 e<. P%ils. >. agreement7 e<. Mingdom of Net%erlands0 Poland F. attainment of civili'ation7 e<. +apan EKtinction of t$e -tate7 possible for it to be e<tinguis%ed or )die* in a legal sense e<ampleH a. Population ma& be completel& wiped out b& an epidemic or a t%ermonuclear e<plosion b. state ma& be merge wit% anot%er state c. territor& is lost because volcanic eruption or ot%er similar disaster. d. ore usual are t%e artificial means0 w%ic% includeH
i. ii. iii. :narc%& 7a state of disorder due to absence or non7 recognition of aut%orit& or ot%er controlling s&stems. ass immigration of t%e population :nne<ation7 If &ouPre a big powerful countr& and &ou want to ta(e over a smaller countr&0 or a piece of it0 &ou can simpl& occup& it wit% &our arm&0 a process (nown as anne)ation. erger or unification Dismemberment Dissolution of a federal union vii. Partial loss of independence0 as in t%e case of su'eraint& and t%e protectorate.
iv. v. vi.
e. %unda&ental Ri#$t" of a -tate" ,. Rig%t of Independence7capacit& of a state to provide for its own well7being and development free from t%e domination of ot%er states0 provided it does not violate t%eir legitimate rig%ts 2. Rig%t of ;Iualit&7refers to eIualit& of legal rig%ts irrespective of t%e si'e or power of t%e states 8. Rig%t of ;<istence and /elf7Defense7t%e most important rig%t and considered t%e most compre%ensive of t%e attributes of t%e state because all its ot%er rig%ts are supposed to flow or be derived from it.
c. Cla""ification of -tate" ,. Inde)endent "tate"7a state w%ic% is not sub5ect to dictation from ot%ers a. "i&)le "tate"7one w%ic% is placed under a single and centrali'ed govt. e<ercising power over bot% its internal and e<ternal affairs li(e P%ils. and Net%erlands b. co&)o"ite "tate"7 consist of 2 or more states0 eac% wit% its own separate govt. but bound under a central aut%orit& e<ercising0 to a greater or less degree0 control over t%eir e<ternal relations 2. De)endent "tate" 3wo B2A ?eneral 4ategoriesH
9. TREATIEa. ReIuisites of a valid treat& b. 4onclusion and ;ntr& into !orce of 3reaties c. Reservations d. 2bservance0 :pplication and Interpretation of 3reaties e. Invalidit&0 3ermination and /uspension of 3reaties

Page 1, of 29
created b& t%e treat& can %ave t%e effect of creating a universal law in muc% t%e same wa& t%at general practice suffices to create customar& law. a. ReCui"ite" of a alid treat2 ,. Be entered into b& parties wit% t%e treat& ma(ing capacit& 2. 3%roug% t%eir aut%ori'ed representatives 8. @it%out t%e attendance of fraud0 duress0 mista(e or ot%er vice of consent =. 2n an& lawful sub5ect matter >. In accordance wit% t%eir respective constitutional processes !. Conclu"ion and Entr2 into %orce of Treatie" ,. Negotiation 2. /ignature 8. Ratification =. ;<c%ange of t%e Instrument for Ratification :s a rule0 a treat& is onl& binding onl& on t%e contracting parties0 including not onl& t%e original signatories but also t%e ot%er states w%ic% alt%oug% t%e& ma& not %ave participated in t%e negotiation of t%e agreement 0 %ave been allowed b& its terms to sign it later b& a process (nown as accession. Non7parties are usuall& not bound under t%e ma<im pacta nec nocent prosunt. c. Re"er ation" ,. eans a unilateral statement0 %owever p%rased or named0 made b& a /tate0 w%en 2. signing0 ratif&ing0 accepting0 approving or acceding to a treat&0 w%ereb& it purports to e<clude or to modif& t%e legal effect of certain provisions of t%e treat& in t%eir application to t%at /tateJ 8. 3o avoid total re5ection of a treat& t%e ratification is Iualified or conditional =. In w%ic% event t%e same must be accepted b& t%e ot%er part& if t%ese would constitute a modification of t%e original agreement d. O!"er ance: A))lication and Inter)retation of Treatie" Pacta "unt "er anda 1 international agreements must be performed in good fait% : treat& is not a mere moral obligation but creates a legall& binding obligations on t%e parties Re!u" "ic "tanti!u" 1 t%e doctrine constitutes an attempt to formulate a legal principle w%ic% would 5ustif& non7performance of a treat& obligation if t%e condition wit% t%e relation to o
1. W$at are treatie"> :. :rticle 2B,ABaA of t%e ,9F9 Dienna 4onvention on t%e Law of 3reaties provides t%at a treat& is an international agreement conducted between states in written form and governed b& international law0 w%et%er embodied in a single instrument or in two or more related instruments and w%atever particular designation t%e& ma& be given. 1+ W$at are t$e function" of treatie"> :. 3%e& are sources of international law0 t%e& serve as t%e c%arter of international organi'ations0 t%e& are used to transfer territor&0 regulate commercial relations0 settle disputes0 protect %uman rig%ts0 guarantee investments0 etc. But a treat& is not t%e onl& means b& w%ic% a state can enter into a legal obligation. 1. W$at are t$e Jind" of treatie"> :. D1E /ultilateral treatie" are t%ose t%at are open to all states of t%e world. 3%e& create norms w%ic% are t%e basis for a general rule of law. 3%e& are eit%er codification treaties or )law7ma(ing treaties* or t%e& ma& %ave t%e c%aracter of bot%. B2A :not%er categor& includes treatie" t$at create a colla!orati e &ec$ani"&. 3%ese can be of universal scope or regional. 3%e& operate t%roug% t%e organs of different states. B8A 3%e largest categor& of treaties are !ilateral treatie". an& of t%ese are in t%e nature of contractual agreements w%ic% create s%ared e<pectations suc% as trade agreements of various forms. 3%e& are sometimes called )contract treaties*. 1. W$at are law0&aJin# treatie"> ,. Law7ma(ing treaties create legal obligations t%e observance of w%ic% does not dissolve t%e treat& obligation. :ccording to cNair0 suc% treaties are in principle binding onl& on parties0 but t%e number of parties0 t%e e<plicit acceptance of rules of law0 and in some cases0 t%e declarator& nature of t%e provisions produce a strong law7creating effect at least as great as t%e general practice considered sufficient to support a customar& rule. 1. W$at i" t$e funda&ental )rinci)le of treat2 law> :. 3reaties are binding upon t%e parties to t%em and must be performed in good fait% 1 pacta sunt ser anda. 3%is principle was reaffirmed in article 2F of t%e D4L3. 1. Do treatie" #i e ri"e to cu"to&ar2 international law> :. It can. @%ile treaties are generall& binding onl& on t%e parties0 t%e number of t%e contracting parties and t%e generalit& of t%e acceptance of specific rules

Page 17 of 29
4onvention0 a peremptor& norm of general international law is a norm accepted and recogni'ed b& t%e international communit& of /tates as a w%ole as a norm from w%ic% no derogation is permitted and w%ic% can be modified onl& b& a subseIuent norm of general international law %aving t%e same c%aracter. .round" for in alidation of treatie"+ ,.A error of factJ 2.A fraudJ 8.A corruptionJ =.A duressJ >.A violation of jus cogens Btreaties conflicting wit% a peremptor& norm of general international lawA : state can lose t%e rig%t to assert t%e invalidit& of t%e treat& t%ru estoppel0 i.e. if after becoming aware of t%e ground for invalidationH ,.A it e<pressl& agreed t%at t%e treat& is valid0 remains in force or continues in operationJ 2.A b& reason of its conduct0 it ma& be considered as %aving acIuiesced t%e validit& of t%e treat&. : state ma& not plead its municipal law as a ground for invalidating a treat& t%at %as been entered unless t%e violation is manifest Bob5ectivel& evident to an& /tate conducting itself in t%e matter in accordance wit% normal practice and in good fait%A and concerns a rule of its internal law of fundamental importance. TER/INATION 3%e termination of a treat& or t%e wit%drawal of a part& ma& ta(e placeH BaA in conformit& wit% t%e provisions of t%e treat&J or BbA at an& time b& consent of all t%e parties after consultation wit% t%e ot%er contracting /tates. N.B Enless t%e treat& ot%erwise provides0 a multilateral treat& does not terminate b& reason onl& of t%e fact t%at t%e number of t%e parties falls below t%e number necessar& for its entr& into force. : treat& w%ic% contains no provision regarding its termination and w%ic% does not provide for denunciation or wit%drawal is not sub5ect to denunciation or wit%drawal unlessH BaA it is establis%ed t%at t%e parties intended to admit t%e possibilit& of denunciation or wit%drawalJ or BbA a rig%t of denunciation or wit%drawal ma& be implied b& t%e nature of t%e treat&. : part& s%all give not less t%an twelve mont%Gs treat& or is ot%erwise establis%ed t%at suc% was t%e notice of its intention to denounce or wit%draw from a treat&. Ter&ination of Treatie"
w%ic% t%e parties contracted %ave c%anged so materiall& and so e<pectedl& as to create a situation in w%ic% t%e e<action of performance would be unreasonable

3%e basic rule in t%e interpretation of treaties is to give effect to t%e intention of t%e parties 3%e usual canons of statutor& construction are emplo&ed in t%e interpretation of treaties.
;<amplesH
/pecific provisions must be read in t%e lig%t of t%e w%ole instrument and especiall& t%e purposes of t%e treat& @ords are to be given t%eir natural meaning unless a tec%nical sense was intended 0 and0 w%en t%e& %ave different meanings in t%e contracting states0 s%ould be interpreted in accordance wit% t%e usage if t%e state w%ere t%e& are supposed to effect doubts s%ould be resolved against t%e imposition of obligations and in favor of t%e freedom and sovereignt& of t%e contracting parties travau< preparatories
e. In alidit2: Treatie"
Ter&ination
and -u")en"ion
of
INVALIDITL : /tate ma& invo(e an error in a treat& as invalidating its consent to be bound b& t%e treat& if t%e error relates to a fact or situation w%ic% was assumed b& t%at /tate to e<ist at t%e time w%en t%e treat& was concluded and formed an essential basis of its consent to be bound b& t%e treat& If a /tate %as been induced to conclude a treat& b& t%e fraudulent conduct of anot%er negotiating /tate0 t%e /tate ma& invo(e t%e fraud as invalidating its consent to be bound b& t%e treat&. If t%e e<pression of a /tateGs consent to be bound b& a treat& %as been procured t%roug% t%e corruption of its representative directl& or indirectl& b& anot%er negotiating /tate0 t%e /tate ma& invo(e suc% corruption as invalidating its consent to be bound b& t%e treat&. 3%e e<pression of a /tateGs consent to be bound b& a treat& w%ic% %as been procured b& t%e coercion of its representative t%roug% acts or t%reats directed against %im s%all be wit%out an& legal effect. : treat& is void if its conclusion %as been procured b& t%e t%reat or use of force in violation of t%e principles of international law embodied in t%e 4%arter of t%e Enited Nations. : treat& is void if0 at t%e time of its conclusion0 it conflicts wit% a peremptor& norm of general international law. !or t%e purposes of t%e present

Page 19 of 29
was illegal. It as(ed t%e I4+ for an advisor& opinion on t%e legal conseIuences of t%is. (eld+ 2nl& a material breac% Beit%erH ,. a repudiation of t%e treat& not sanctioned b& t%e present 4onventionJ or 2. t%e violation of a provision essential to t%e accomplis%ment of t%e ob5ect and purpose of t%e treat&A 5ustifies termination. Here0 bot% forms of material breac% %ad occurred. 3%e& are e<ercising t%e rig%t to terminate a relations%ip in case of a deliberate and persistent violation of obligations w%ic% destro&s t%e ver& ob5ect and purpose of t%at relations%ip. 3%e silence of a treat& as to t%e e<istence of suc% rig%t cannot be interpreted as impl&ing t%e e<clusion t%ereof. 3o sa& t%at t%e power of revocation to t%e andate could not %ave been e<ercised unilaterall& but onl& in cooperation wit% /out% :frica would postulate an impossibilit&. !or obvious reasons0 t%e consent of t%e wrongdoers to suc% a form of termination cannot be reIuired.
: treat& ma& be terminated or suspended accdg to t%e terms of t%e treat& or wit% t%e consent of t%e parties. : treat& wit% a definite period ma& also e<pire. It ma& also end w%en t%e purpose of t%e treat& %as alread& been ac%ieved. But a mere c%ange of government or severance of diplomatic relations does not terminate or suspend a treat&. 3%ree ot%er impt modes of terminating a treat&H ,.A Material breachJ a.A a repudiation of t%e treat& not sanctioned b& t%e present 4onventionJ b.A violation of a provision essential to t%e accomplis%ment of t%e ob5ect or purpose of t%e treat&. 8.= Super ening impossibility of performance 1 if t%e impossibilit& results from t%e permanent disappearance or destruction of an ob5ect indispensable for t%e e<ecution of t%e treat& Bif merel& temporar&0 can onl& suspendA. 3%is canGt be invo(ed if t%e impossibilit& arises as a result of a breac% b& t%at part&. 8.A Change of fundamental conditions not foreseen ;rebus sic stantibus= ifH a.A 3%e e<istence of t%ose circumstances constituted an essential basis of t%e consent of t%e parties to be bound b& t%e treat&J and b.A 3%e effect of t%e c%ange if radicall& to transform t%e e<tent of obligations still to be performed under t%e treat&. 3%is canGt be invo(ed in boundar& treaties. Plus0 t%e c%anges must %ave increased t%e burden of t%e obligations to t%e e<tent of rendering performance somet%ing essentiall& diff from t%e orig intention 1Cisheries 2urisdiction Case.: 7isheries )urisdiction (ase *08 v! 'celand+
Iceland claims t%at its agreement wit% t%e EM not to e<tend its fis%eries 5urisdiction was no longer binding due to fundamental c%ange of circumstances. (eld+ !or t%is to be a ground for invo(ing t%e termination of a treat&0 it s%ould %ave resulted in a radical transformation of t%e e<tent of t%e obligations still to be performed. 'he change must ha e increased the burden of the obligations to be e)ecuted to the e)tent of rendering the performance something essentially different from that originally undertaDen. 3%is is not t%e case %ere0 Iceland cannot validl& invo(e rebus sic stantibus in claiming t%e termination of t%e treat&.
4anu9e 4a
(ase *Hungary v! &lova:ia+
Hungar& and 4'ec%oslova(ia entered into a treat& to facilitate t%e construction of dams on t%e Danube. Hungar& later suspended wor(s due to environmental concerns in response to w%ic% 4'ec%oslova(ia carried out unilateral measures. Hungar& claims t%e rig%t to terminate t%e treat& since 4'ec%oslova(ia violated t%e 3reat& b& underta(ing unilateral measures. (eld+ /tate of necessit& not a ground for termination. It can onl& be invo(ed to e<onerate. Impossibilit& of performance cannot be invo(ed eit%er since t%is was due to Hungar&Gs non7performance of certain responsibilities and impossibilit& cannot be invo(ed w%en it results from t%at part&Gs own breac% of an obligation flowing from t%at treat&.
!undamental c%ange of circumstances cannot be invo(ed eit%er because t%e& were not of suc% nature t%at t%eir effect would radicall& transform t%e e<tent of t%e obligations still to be performed. : fundamental c%ange in circumstances must %ave been unforeseenJ t%e e<istence of t%e circumstances must %ave constituted an essential basis of t%e consent of t%e parties to be bound b& t%e treat&. It is onl& a material breac% of t%e treat& itself0 and not of ot%er treat& rules or rules of general international law0 w%ic% is a ground for termination. 4'ec%oslova(ia did not act unlawfull&. 3%e notification of termination b& Hungar& was premature. &rocedure for the 'ermination of 'reaties ,.A Notif& ot%er parties Bin writing and signed b& one wit% full powersA of claim0 measure proposed and reasons t%erefor.
Na i9ia (ase *#dvisory 1pinion+

3%e /ecurit& 4ouncil %as resolved t%at /out% :fricaGs andate Bw%ic% is considered as an international agreementA over Namibia was terminated0 but t%is %ad been ignored b& /out% :frica. It t%en resolved t%at t%eir contGd presence t%ere

Page 18 of 29
treaty i plied 9y conclusion of a later treaty ,. : treat& s%all be considered as terminated if all t%e parties to it conclude a later treat& relating to t%e same sub5ect matter andH a. it appears from t%e later treat& or is ot%erwise establis%ed t%at t%e parties intended t%at t%e matter s%ould be governed b& t%at treat&J or b. t%e provisions of t%e later treat& are so far incompatible wit% t%ose of t%e earlier one t%at t%e two treaties are not capable of being applied at t%e same time. 2. 3%e earlier treat& s%all be considered as onl& suspended in operation if it appears from t%e later intention of t%e parties. Ter ination or suspension of the operation of a treaty as a conse;uence of its 9reach ,. : material breac% of a bilateral treat& b& one of t%e parties entitles t%e ot%er to invo(e t%e breac% as a ground for terminating t%e treat& or suspending its operation in w%ole or in part. 2. : material breac% of a multilateral treat& b& one of t%e parties entitlesH a. t%e ot%er parties b& unanimous agreement to suspend t%e operation of t%e treat& in w%ole or in part or to terminate it eit%erH i. in t%e relations between t%emselves and t%e defaulting /tateJ or ii. as between all t%e partiesJ b. a part& speciall& affected b& t%e breac% to invo(e it as a ground for suspending t%e operation of t%e treat& in w%ole or in part in t%e relations between itself and t%e defaulting /tateJ c. an& part& ot%er t%an t%e defaulting /tate to invo(e t%e breac% as a ground for suspending t%e operation of t%e treat& in w%ole or in part wit% respect to itself if t%e treat& is of suc% a c%aracter t%at a material breac% of its provisions b& one part& radicall& c%anges t%e position of ever& part& wit% respect to t%e furt%er performance of its obligations under t%e treat&. 8. : material breac% of a treat&0 for t%e purposes of t%is article0 consists inH BaA a repudiation of t%e treat& not sanctioned b& t%e present 4onventionJ or BbA t%e violation of a provision essential to t%e accomplis%ment of t%e ob5ect or purpose of t%e treat&. =. 3%e foregoing paragrap%s are wit%out pre5udice to an& provision in t%e treat& applicable in t%e event of a breac%. >. Paragrap%s , to 8 do not appl& to provisions relating to t%e protection of t%e %uman person contained in treaties of a %umanitarian c%aracter0 in
2.A If no ob5ection %ad been raised wit%in t%e period Bnot less t%an 8 mont%sA0 t%e& ma& carr& out t%e measures proposed. 8.A If ob5ection %as been raised0 t%e& s%all see( a solution. =.A If no solution %as been reac%ed wit%in ,2 mont%sH a.A submit to I4+0 b.A submit to arbitration0 or c.A reIuest /ec ?en of t%e EN for procedure specified in :nne< of 4onvention. T notification can be revo(ed an& time before it ta(es effect. #uthority to Ter inate Logicall&0 aut%orit& to terminate s%ould also belong to t%e one w%o %as t%e aut%orit& to enter into t%e treat&. However0 in t%e P%ils.0 t%e aut%orit& to conclude treaties is s%ared between t%e /enate and t%e President. -ucce""ion to Treatie" @%en one state ceases to e<ist and is succeeded b& anot%er on t%e same territor&0 t%e Eclean slateF rule applies and t%e new state is not bound b& t%e commitments of t%e predecessor unless t%e& agree to be bound t%ereto. 3%e clean slate rule does not appl& to treaties affecting boundar& regimes or ot%er territor& regimes. -U-PEN-ION 3%e operation of a treat& in regard to all t%e parties or to a particular part& ma& be suspendedH BaA in conformit& wit% t%e provisions of t%e treat&J or BbA at an& time b& consent of all t%e parties after consultation wit% t%e ot%er contracting /tates. Two or ore parties to a ultilateral treaty ay conclude an agree ent to suspend the operation of provisions of the treaty, te porarily and as 9etween the selves alone, if. BaA t%e possibilit& of suc% a suspension is provided for b& t%e treat&J or BbA t%e suspension in Iuestion is not pro%ibited b& t%e treat& andH BiA does not affect t%e en5o&ment b& t%e ot%er parties of t%eir rig%ts under t%e treat& or t%e performance of t%eir obligationsJ BiiA is not incompatible wit% t%e ob5ect and purpose of t%e treat& Enless in a case falling under BaA0 t%e treat& ot%erwise provides0 t%e parties in Iuestion s%all notif& t%e ot%er parties of t%eir intention to conclude t%e agreement and of t%ose provisions of t%e treat& t%e operation of w%ic% t%e& intend to suspend. Ter ination or suspension of the operation of a

Page 1A of 29
:n act relating to t%e conclusion of a treat& b& one w%o %as no proper aut%ori'ation %as no legal effect unless confirmed b& %is state. Negotiation is usually done by someone already in the foreign country ;in the &hil. (mbassy= due to lacD of funds to send. 'he DCA designates $ho the rep. is going to be. : person is considered to be representing t%e /tate w%enH ,.A He produces appropriate full powersJ or 2.A It appears from t%e practice of t%e /tates concerned or from ot%er circumstances t%at t%eir intention was to consider t%at person as representing t%e /tate for suc% purposes and to dispense wit% full powers. 3%ese ma& be t%e followingH ,.A Heads of /tate0 Heads of ?ovt and inisters for !oreign :ffairsJ 2.A Heads of diplomatic missionsJ 8.A Representatives accredited b& /tates. Authentication of 'e)t Negotiations conclude wit% t%e signing of t%e document. 3%e signatures serve as aut%entication of t%e document. :doption of t%e te<t ta(es place wit% t%e consent of all t%e /tates or0 in t%e case of international conferences0 b& t%e vote of 2L8 of t%e /tates present and voting0 unless b& 2L8 vote0 t%e& decide on anot%er rule. Consent to be Hound 2nce t%e document %as been signed0 t%ere are stages w%ic% follow w%ic% culminate in ma(ing t%e document binding. 3%e most important step is t%e consent to be bound. 3%e manner of ratification differs from state to state. Between signature and ratification a state is reIuired not to engage in acts w%ic% can defeat t%e purpose of t%e treat&. Ratification is ne<t followed b& eit%er e<c%ange of ratification0 in bilateral treaties0 or in multilateral treaties0 deposit of ratification. !f there is no deposit $ith the Affice of the @N Sec*en, it cannot be in oDed in case of contro ersy bet$een the parties. Accession to a 'reaty /tates w%ic% did not participate in t%e initial negotiation ma& also e<press t%eir consent to be bound b& )accession.*
particular to provisions pro%ibiting an& form of reprisals against persons protected b& suc% treaties. CONTINUATION O% TREATIE- %RO/ REVIEWERI :n international agreement concluded between states in written form and governed b& international law w%et%er embodied in a single instrument or in two or more related instruments BGienna Con ention on the "a$ of 'reaties, ,9F9A ReCui"ite"+ B-CRADE ,. ;ntered into b& parties %aving treat&7ma(ing capacit&J 2. 3%roug% t%eir aut%ori'ed organs or representativesJ 8. @it%out attendance of duress0 fraud0 mista(e or ot%er vices of consentJ =. Lawful "ub5ect matter and ob5ectJ and >. Ratification in accordance wit% t%eir respective constitutional processes. Effect of Unwritten Treat2 ,. %as legal forceJ 2. convention rules on matters governed b& international law independentl& of convention s%all appl&J and 8. convention rules appl& to t%e relations of states as between t%emselves under international agreement wit% ot%er sub5ects as parties. -te)" in Treat20&aJin# Proce"". ,. NegotiationJ 2. /ignatureJ 8. RatificationJ =. ;<c%ange of instruments of ratificationJ and >. Registration wit% EN. T$e /aJin# of Treatie" Steps: ,.A NegotiationJ 2.A :doption of te<t BconsentL2L8 voteAJ 8.A :ut%entication of te<t BsigningAJ =.A 4onsent to be bound Be.g. ratificationAJ >.A ;<c%ange or depositJ F.A ;ntr& into force of treaties. Negotiation +.= Hilateral I Multilateral among small J: originate from t%e foreign ministries 8.= "arge Multilateral: negotiated in diplomatic conferences w%ic% are run li(e a legislative bod&. &o$er to Negotiate

Page 1; of 29
: treat& is binding upon eac% part& in respect of its entire territor& unless a different intention appears. !nterpretation of 'reaties 3%e interpretation of treaties combines several approac%esH ,.A 2b5ective approac%H interpretation accdg to t%e ordinar& meaning of t%e wordsJ 2.A 3eleological approac%H interpretation accdg to t%e purpose of t%e treat&J and 8.A /ub5ective approac%H %onors special meaning given b& t%e parties. @%ere t%ere are ambiguities in t%e meaning of a treat&0 resort ma& be made as to supplementar& sources0 e.g.H ,.A preparator& wor(J 2.A circumstances of its conclusion. @%en t%e interpretation of treaties is in 2 or more languages and t%ere is a conflict among official te<tsH ,.A t%e language t%at is agreed upon b& t%e parties s%all prevailJ if none 2.A eac% is eIuall& aut%oritative and w%en compared to eac% ot%er0 t%e meaning w%ic% best reconciles t%e te<ts in lig%t of t%e ob5ect or purpose of t%e treat& s%all be adopted. Doctrine of UneCual Treatie" 1 treaties w%ic% %ave been imposed in an uneIual c%aracter0 are void. )us (ogens 1 customar& international law t%at %as attained t%e status of a peremptor& norm0 accepted and recogni'ed b& t%e international communit& of states as a rule from w%ic% no derogation is permitted and can be modified onl& b& a subseIuent norm %aving t%e same c%aracter. e.g customs out7lawing slave trade0 genocide0 terrorism0 etc. Concordat 1 a treat& or agreement between ecclesiastical and civil powers to regulate t%e relations between t%e c%urc% and t%e state in t%ose matters w%ic%0 in some respect are under t%e 5urisdiction of bot%. Pacta &unt &ervanda 1 );ver& treat& in force is binding upon t%e parties to it and must be performed b& t%em in good fait%.* B Art. 85, Gienna Con ention on the "a$ of 'reaties=. <e9us &ic &tanti9us 1 legal principle w%ic% would 5ustif& non7performance of treat& obligations w%ere an unforeseen or substantial c%anges occur w%ic% would render one of t%e parties t%ereto unable to underta(e treat& obligations as stipulated t%erein. /o"t %a ored Nation Clau"e 1 pledge made b& a contracting part& to a treat& to grant to ot%er part&
3eser ations: )a unilateral statement0 %owever p%rased or named0 made b& a /tate0 w%en signing0 ratif&ing0 accepting0 approving or acceding to a treat&0 w%ereb& it purports to e)clude or modify t%e legal effect of certain provisions of t%e treat& in t%eir application to t%at /tate.* 3%e& are different from )interpretative declarations* w%ic% are not meant to be a derogation from t%e treat& but an e<pression of %ow a state understands its adoption of a treat&. 3%ese are allowed in deference to t%e sovereignt& of states e<cept in t%e ff casesH ,.A 3reat& pro%ibits itJ 2.A 3reat& provides onl& for certain specified reservations to w%ic% it is not includedJ 8.A Reservation is incompatible wit% t%e ob5ect and purpose of t%e treat&. : proliferation of reservations in multilateral treaties can defeat t%e purpose of a treat&. In bilateral treaties0 a reservation b& one part& means a re5ection of t%e treat& and necessitates renegotiation. 3eser ations, therefore, are meant only for multilateral treaties. : reservation need not be consented b& all parties for it to be effective. : state can be regarded as a part& if t%e reservation is not incompatible wit% t%e ob5ect and purpose of t%e 4onvention and t%e I4+ %as %eld t%at compatibilit& could be decided b& states individuall& since if a part& ob5ects0 t%e& can consider t%e state as not a part& to t%e 4onvention. 3%us0 it is possible for different legal relations%ips to arise among parties to t%e same treat&. (ntry into Corce of 'reaties 3reaties enter into force on t%e date agreed upon b& t%e parties. @%ere no date is indicated0 t%e treat& enters into force once consent %as been given. ultilateral treaties generall& contain a provision w%ic% sa&s %ow man& states %ave to accept t%e treat& before it can come into force. 3reaties can also be put into effect provisionall&.
Application of 'reaties ;ver& treat& in force is binding upon t%e parties to it and must be performed b& t%em in good fait% under t%e fundamental rule of pacta sunt ser anda. : part& ma& not invo(e a provision of its internal law as 5ustification for its failure to perform a treat&.

Page 16 of 29
provisions of t%e 4onvention ma& be regarded as reflective of customar& international law0 suc% as t%e rules on interpretation0 material breac% and fundamental c%ange of circumstances. 2t%ers ma& not be so regarded0 and constitute principles binding onl& upon state parties. 1. W$at are t$e "te)" in t$e creation of treatie"> :. Negotiation0 aut%entication of te<t0 consent to be bound0 entr& into force. 1. W$at do ne#otiation" in ol e> :. Negotiation is done t%roug% foreign ministries. Larger multilateral treaties are negotiated in diplomatic conferences. Negotiators must possess powers to negotiate. :n act relating to t%e conclusion of a treat& b& one w%o %as no proper aut%ori'ation %as no legal effect unless confirmed b& %is state. 1. W$o $a" )ower" to ne#otiate> :. : person is considered as a representative of a /tate if %e BaA produces appropriate full powers or BbA it appears from t%e practice of t%e /tates concerned or from ot%er circumstances t%at t%eir intention was to consider t%at person as representing t%e /tate. B:rticle -A. 1. W$o are con"idered a" re)re"entati e" of a -tate> :. 3%e following are considered as representing t%eir /tate0 wit%out %aving to produce full powersH BaA Heads of /tate0 Heads of ?overnment and inisters for !oreign :ffairs0 for t%e purpose of performing all acts relating to t%e conclusion of a treat&J BbA %eads of diplomatic missions0 for t%e purpose of adopting t%e te<t of a treat& between t%e accrediting /tate and t%e /tate to w%ic% t%e& are accreditedJ BcA representatives accredited b& /tate to an international conference or to an international organi'ation or one of its organs0 for t%e purpose of adopting t%e te<t of a treat& in t%at conference0 organi'ation or organ. 1. W$en do ne#otiation" end> :. It concludes wit% t%e signing of t%e document. :rticle 9 provides t%at t%e adoption of t%e te<t of a treat& at an international conference ta(es place b& t%e vote of two7t%irds of t%e /tates present and voting0 unless b& t%e same ma5orit& t%e& s%all decided to appl& a different rule. 3%e signatures can serve as aut%entication of t%e document. 1. (ow doe" a -tate eK)re"" it" con"ent to !e !ound> :. :rticle ,, provides t%e various wa&s b& w%ic% consent to be bound is e<pressed. 3%ese areH b& signature0 e<c%ange of instruments constituting a treat&0 ratification0 acceptance0 approval or accession0 or b& an& ot%er means if so agreed.
treatment not less favorable t%an t%at w%ic% %ad been given or ma& be granted to t%e most favored among parties. Inter)retation of Treatie" ,. !ounding !at%er 3estJ 2. Literal or te<tualJ 8. )3eleological aims and ob5ects* sc%ool .round" for Ter&ination of Treat2 DNEW DEVIL BmadeA VITALE ACCO/PLI-(/ENT ,. e<piration of termJ 2. accomplis%ment of purposeJ 8. impossibilit& of performanceJ =. loss of sub5ect matterJ >. novationJ F. desistance of partiesJ -. e<tinction of one of parties0 if treat& is bipartiteJ .. occurrence of ital c%ange of circumstanceJ 9. outbrea( of warJ and ,C. oidance of treat&. Protocol de cloture ? an instrument w%ic% records t%e winding up of t%e proceedings of a diplomatic conference and usuall& includes a reproduction of t%e te<ts of treaties0 conventions0 recommendations and ot%er acts agreed upon and signed b& t%e plenipotentiaries attending t%e conference. It is not t%e treat& itself and does not reIuire t%e concurrence of t%e /enate. B'aKada . Angara, 2-2 /4R: ,.A. A. VIENNA LAW O% TREATIECONVENTION ON T(E
W$at i" t$e "co)e of t$e VCLT> It covers treaties between and among states. It e<cludes agreements involving international organi'ations. It also does not cover agreements between states w%ic% are to be governed b& municipal law. 1. Do oral treatie" co&e under t$e )ro i"ion" of t$e Vienna Con ention on t$e Law of treatie"> :. No. @%ile no particular form is prescribed0 t%e definition found in :rticle 2 of t%e 4onvention e<plicitl& states t%at a treat& is an agreement in written from. 3%ere are no specific reIuirements of form in international law for t%e e<istence of a treat&0 alt%oug% it is essential t%at t%e parties intend to create legal relations as between t%emselves b& means of t%eir agreement. 1. Doe" t$e 1686 VCLT con"titute cu"to&ar2 law> :. 3%e ,9F9 Dienna 4onvention on t%e Law of 3reaties partl& reflects customar& law. 4ertain

Page *< of 29
treat&.
1. (ow doe" t$e P$ili))ine" ratif2 a treat2> :. :rticle DII0 /ection 2, of t%e 4onstitution provides t%at no treat& or international agreement s%all be valid and effective unless concurred in b& at least 2L8 of all t%e embers of t%e /enate. 1. W$at are re"er ation"> :. :rticle 2 defines reservations as a unilateral statement0 %owever p%rased or named0 made b& a /tate0 w%en signing0 ratif&ing0 accepting0 approving or acceding to a treat&0 w%ereb& it purports to e<clude or to modif& t%e legal effect of certain provisions of t%e treat& in t%eir application to t%at /tate. 1. /u"t a re"er ation !e con"ented to !2 all )artie" for it to !e effecti e> :. Reservations to t%e ?enocide 4onvention BI4+ Reports ,9>,A states t%at a state w%ic% %as made and maintained a reservation w%ic% %as been ob5ected to b& one or more parties to t%e 4onvention but not b& ot%ers0 can be regarded as a part& to t%e 4onvention if t%e reservation is compatible wit% t%e ob5ect and purpose of t%e 4onvention. 3%e 4ourt added t%at compatibilit& could be decided b& states individuall& since if a part& to t%e 4onvention ob5ects to a reservation w%ic% it considers incompatible wit% t%e ob5ect and purpose of t%e 4onvention0 it can consider t%at t%e reserving state is not a part& to t%e 4onvention. Ender t%is view0 it is possible for different legal relations%ips to arise among parties to t%e same treat&. 1. W$en do treatie" enter into force> :. 3reaties enter into force on t%e date agreed upon b& t%e parties. @%ere no date is indicated0 t%e treat& enters into force once consent %as been given. ultilteral treaties generall& contain a provision w%ic% sa&s %ow man& states %ave to accept t%e treat& before it can come into force. 1. (ow are treatie" inter)reted> Q. 3reaties are interpreted according to t%e ordinar& meaning of t%e words. @%ere t%ere are ambiguities in t%e meaning of a treat&0 resort ma& be made to supplementar& sources. B:rt 8,A 3%us0 t%e purpose of t%e treat&0 and t%e special meaning given b& t%e parties ma& be appreciated. In case t%ere is conflict among )official te<ts*0 t%e language t%at is agreed b& t%e parties as aut%oritative is followed. 1. W$at are t$e #round" t$at would &aJe a treat2 in alid> :. ;rror of fact0 fraud0 corruption of a representative of a /tate0 coercion of a /tate b& t%e t%reat or use of force. oreover0 a violation of jus cogens invalidates a
1. W$at i" t$e difference !etween a&end&ent and &odification of treatie"> :. :mendment is a formal revision done wit% t%e participation0 at least in its initial stage0 b& all t%e parties to t%e treat&. odification involves onl& some of t%e parties. 1. (ow are treatie" ter&inated> :. 3%e following are wa&s in w%ic% a treat& ma& be terminatedH B,A e<piration of a period B2A consent of all parties B8A accomplis%ment of t%e purpose B=A material breac% Brepudiation not sancioned b& t%e present 4onventionA B>A impossibilit& of performance Brebus sic stantibusA. 1. W$en one "tate cea"e" to eKi"t and i" "ucceeded !2 anot$er on t$e "a&e territor2: i" t$e new "tate !ound !2 t$e co&&it&ent" &ade !2 it" )redece""or> :. :rticle ,F of t%e ,9-. Dienna 4onvention on t%e /uccession of /tates wit% Respect to 3reaties 1 : newl& independent /tate is not bound to maintain in force0 or to become a part& to0 an& treat& b& reason onl& of t%e fact t%at at t%e date of t%e succession of /tates t%e treat& was in force in respect of t%e of t%e territor& to w%ic% t%e succession of /tates relates. Validit2 of t$e BaliJatan EKerci"e"
7 3%e D!: permits Enited /tates personnel to engage0 on an impermanent basis0 in Nactivities0N t%e e<act meaning of w%ic% was left undefined. 3%e e<pression is ambiguous0 permitting a wide scope of underta(ings sub5ect onl& to t%e approval of t%e P%ilippine government. :fter studied reflection0 it appeared farfetc%ed t%at t%e ambiguit& surrounding t%e meaning of t%e word NactivitiesN arose from accident. In our view0 it was deliberatel& made t%at wa& to give bot% parties a certain leewa& in negotiation. In t%is manner0 visiting E/ forces ma& so5ourn in P%ilippine territor& for purposes ot%er t%an militar&. :s conceived0 t%e 5oint e<ercises ma& include training on new tec%niIues of patrol and surveillance to protect t%e nationPs marine resources0 sea searc%7and7 rescue operations to assist vessels in distress0 disaster relief operations0 civic action pro5ects suc% as t%e building of sc%ool%ouses0 medical and %umanitarian missions0 and t%e li(e BLim vs. Honorable ;<ecutive /ecretar&0 ?.R. No. ,>,==>0 :pril ,,0 2CC2A. TREATL Basic political issuesJ c%anges of national policies 2. Permanent International :greements ,. A.REE/ENT ,. :d5ustment of details carr&ing out establis%ed national policies 2. 3emporar& :rrangements
8. T(E UNITED NATIONa. Historical Bac(ground b. Purpose and Principles :dvocated c. embers%ip d. Principal 2rgans

Page *1 of 29
e. Privileges and Immunities f. Role of EN in International Peace and /ecurit& "#$#" a. (i"torical BacJ#round It is an international organi'ation created at t%e /an !rancisco 4onference w%ic% was %eld in t%e Enited /tates from :pril 2> to +une 2F0 ,9=>. 3%e E.N.0 as it is commonl& called0 succeeded t%e League of Nations and is governed b& a 4%arter w%ic% came into force on 2ctober 2=0 ,9=>. composed originall& of onl& >, members0 t%e EN %as grown rapidl& to include most of t%e states in t%e world. W$o wa" t$e ad ocate of for&in# t$e UN> In %is famous !ourteen Points for t%e peace settlement0 @oodrow @ilson called for t%e establis%ment of a )general association of nations for world peace under specific covenants for mutual guarantees of political independence and territorial integrit& to large and small /tates ali(e.* :nd so0 t%e League of Nations was formed. W$o coined t$e na&e UN> It was President Roosevelt w%o suggested earl& in ,9=2 t%e name EN for t%e group of countries w%ic% were fig%ting t%e :<is powers. !. Pur)o"e and Princi)le" Ad ocated W$at are t$e )rinci)al )ur)o"e" of t$e UN> ,. 3o maintain international peace and securit& 2. 3o develop friendl& relations among nations 8. 3o ac%ieve international cooperation in solving international economic0 social0 cultural and %umanitarian problems =. 3o promote respect for %uman rig%ts >. 3o be a center of %armoni'ing t%e actions of nations towards t%ose common goals. W$at are t$e )rinci)le" of t$e UN> ,. :ll its members are eIual and all are committed to fulfill in good fait% t%eir obligations under t%e 4%arter 2. 3o settle t%eir disputes wit% eac% ot%er b& peaceful means 8. 3o refrain form t%e t%reat or use of force in t%eir international relations =. 3o refrain from assisting an& /tate against w%ic% t%e EN is ta(ing preventive or enforcement action. c. /e&!er"$i) * Bind" of /e&!er"$i) a. 2riginal b. ;lective 1 t%ose subseIuentl& admitted upon t%e recommendation of t%e EN /ecurit& 4ouncil.
1ualification" for /e&!er"$i) a. ust be /tate b. ust be Peace7loving c. ust accept t%e obligations as member d. In t%e 5udgment of t%e 2rgani'ation0 be able and willing to carr& out suc% obligation. (ow i" Ad&i""ion conducted> ,. Recommendation of a Iualified ma5orit& in t%e /ecurit& 4ouncil 7 3%e affirmative vote of at least 9 members including t%e Big >. 2. :pproval of t%e ?eneral :ssembl& B?:A b& a vote of at least 2L8 of t%ose present and voting. NoteH Bot% /4 and ?: votes must be complied wit%. -u")en"ion of /e&!er"$i) /uspension ma& occur w%en a preventive or enforcement action %as been ta(en b& t%e /4. 3%e /4 ma&0 b& a Iualified ma5orit&0 recommend suspension to t%e ?: w%o s%all in turn concur wit% a 2L8 vote of t%ose present and voting. Discipline does not suspend t%e memberGs obligations but onl& t%e e<ercise of its rig%ts and privileges as a member. 2nl& t%e /4 ma& lift t%e suspension b& a Iualified ma5orit&. EK)ul"ion of a /e&!er 3%e penalt& of e<pulsion ma& be imposed upon a member w%ic% %as persistentl& violated t%e principles in t%e EN 4%arter. /ame voting reIuirement as to suspension. @it%drawal of embers%ip 1 Indonesia 4ase
3%e 4%arter is silent regarding wit%drawal of members%ip. In ,9.>0 Indonesia wit%drew its members%ip from t%e EN and it was not compelled to remain. /ubseIuentl&0 upon President /u(arnoGs overt%row0 Indonesia resumed its members%ip0 w%ic% was accepted b& t%e EN. d. T$e Princi)al Or#an" ,. ?eneral :ssembl& B?:A 2. /ecurit& 4ouncil B/4A 8. ;conomic and /ocial 4ouncil B;/4A =. 3rustees%ip 4ouncil B34A >. International 4ourt of +ustice BI4+A F. /ecretariat

Page ** of 29
concerningH i. 3%e interpretation of a treat&J ii. :n& Iuestion of international law iii. ;<istence of an& fact w%ic%0 if establis%ed0 would constitute breac% of international obligationJ and iv. Nature or e<tent of reparation to be made for breac% of international obligation. b. 3%e I4+ ma& give ad i"or2 o)inion on an& legal Iuestion at t%e reIuest of w%atever bod& ma& be aut%ori'ed b& or in accordance wit% t%e 4%arter of t%e Enited Nations to ma(e suc% a reIuest. c. -tare Deci"i" does not appl& to t%e I4+. Ender t%e statute of t%e 4ourt0 previous decisions %ave no binding forceJ in practice0 %owever0 t%e 4ourt alwa&s ta(es past decisions into account. -. What does it ean to decide a case >? #>-01 >T ,1N13 :H It is to rule in 5ustice and fairness0 eIuit& overrides all ot%er rules of law. 3%e I4+ %as no power to decide a case e) aeBuo et bono0 unless all parties agree t%ereto 6art. 8.B2A0 I4+ /tatute9. -. Who has standing 9efore the '()3 #H 2nl& /tates ma& be parties in contentious proceedings before t%e I4+ Bart 8=0 I4+ /tatuteA. I&&unit2 of t$e United Nation" is spelled out b& :rt. ,C> of t%e EN 4%arter and supplemented b& t%e ?eneral 4onvention on t%e Privileges and Immunities of t%e Enited Nations and t%e 4onvention and Privileges of /peciali'ed :gencies. I&&unit2 of international or#ani4ation" comes from t%e conventional instrument creating t%em a clear e<ample of t%e grant of immunit& creating t%em. 3%eir immunit& is not based on sovereignt& but on t%e need for t%e effective e<ercise of t%eir functions. -u!"idiar2 Or#an" 1 t%ose w%ic% was created b& t%e 4%arter itself or w%ic% it allows to be created w%enever necessar& b& t%e /4 or ?:. ,. Little :ssembl& 1 Interim 4ommittee0 created in ,9=- for a term of one e&ar and re7establis%ed in ,9=9 for an indefinite term. 4omposed of one delegate for eac% member7state0 it meets w%en t%e ?eneral :ssembl& is in recess and assists t%is bod& in t%e performance of its functions. 2. ilitar& /taff 4ommittee 8. Human Rig%ts 4ommission
a.
.eneral A""e&!l2 i. Composition: :ll members of t%e EN Bas of ,99FH ,.> member /tatesA ii. Cunction. 3%e ?: ma& discuss an& Iuestion or matter wit%in t%e scope of t%e 4%arter or relating to t%e powers and functions of an& ot%er organ. It is also vested wit% 5urisdiction over matters concerning internal mac%iner& and operations of t%e EN. -ecurit2 Council i. Composition: ,> membersH > Permanent embers B4%ina0 !rance0 EM0 E/0 RussiaA ,C non7permanentH elected for 2 &ear terms b& t%e ?eneral :ssembl& ii. Cunction. t%e maintenance of international peace and securit&.
!.
-. What is the =dou9le veto=3 #. In all non>procedural matters0 eac% permanent member is given a P etoP 7 a /ecurit& 4ouncil decision is ineffective if even one permanent member votes against it. 3%e veto does not ordinaril& appl& to procedural matters. However0 a permanent member ma& e<ercise a Pdouble etoP w%en it vetoes an& attempt to treat a Iuestion as procedural0 and t%en proceed to veto an& draft resolution dealing wit% t%at Iuestion. c. -ecretariat 1 4%ief :dministrative 2rgan of t%e Enited Nations. d. Econo&ic and -ocial Council 7 organ c%arged wit% promoting social progress and better standards of life in larger freedom. e. Tru"tee"$i) Council 7 organ c%arged wit% administration of International 3rustees%ip /&stem. f. International Court of 3u"tice 7 5udicial organ of t%e EN. T(E INTERNATIONAL COURT O% 3U-TICE a. MO)tional Clau"eM and Contentiou" 3uri"diction :s a rule0 t%e I4+ can operate onl& on t%e basis of t%e consent of /tates to its 5urisdiction. /uc% ma& ta(e t%e form of a special agree ent between /tates to submit an e"isting dispute before t%e 4ourt Bi.e.0 compromisA. However0 under t%e No)tional clau"eN Bart. 8FB2A0 I4+ /tatuteA0 a /tate ma& declare in advance t%at t%e& recogni'e t%e 5urisdiction of t%e 4ourt as compulsor& ipso facto and wit%out need of special agreement0 in relation to an& ot%er /tate accepting t%e same obligation0 in all legal disputes

Page *, of 29
,. Deli!erati e 1 discuss principles regarding maintenance of international peace and securit& and ma& ta(e appropriate measures toward t%is end. 2. -u)er i"or2 1 receives and considers reports from t%e ot%er organs of t%e EN. 8. Electi e 1 important voting functions are also vested in t%e ?:0 suc% as t%e election of t%e non7 permanent members of t%e /40 some members of t%e 34 and all t%e members of t%e ;/40 and wit% t%e /4 selects t%e 5udges of t%e I4+J also participates in t%e amendment of t%e 4%arter. =. Budgetar& 1 controls t%e finances of t%e EN >. 4onstituent 1 amendment of t%e c%arter. .A Votin# Rule" ;ac% member or delegation %as , vote in t%e ?:. Important Questions are decided b& 2L8 ma5orit& of t%ose present and voting. :ll ot%er matters0 including t%e determination of w%et%er a Iuestion is important or not0 are decided b& simple ma5orit&. I&)ortant 1ue"tion" include+ aA peace and securit& bA members%ip cA election dA trustees%ip s&stem eA budget .A /ain Co&&ittee" ost Iuestions are t%en discussed in its si< main committeesH U ,st 4ommittee 7Disarmament V International /ecurit& U 2nd 7 ;conomic V !inancial U 8rd 7 /ocial0 Humanitarian V 4ultural U =t% 7 /pecial Political V Decoloni'ation U >t% 7 :dministrative V Budgetar& U Ft% 7 Legal /ome issues are considered onl& in plenar& meetings0 w%ile ot%ers are allocated to one of t%e si< main committees. :ll issues are voted on t%roug% resolutions passed in plenar& meetings0 usuall& towards t%e end of t%e regular session0after t%e committees %ave completed t%eir consideration of t%em and submitted draft resolutions to t%e plenar& :ssembl&. Doting in 4ommittees is b& a simple ma5orit&. In plenar& meetings0 resolutions ma& be adopted b& acclamation0 wit%out ob5ection or wit%out a vote0 or t%e vote ma& be recorded or ta(en b& roll7call.
-)eciali4ed A#encie" 1 not part of t%e EN0 but %ave been broug%t into close contact wit% it because of t%eir purposes and functions0 suc% asH ,. @orld Healt% 2rgani'ation 2. International onetar& !und 8. 3ec%nical :ssistance Board Pro)o"al" for A&end&ent" to t$e UN C$arter and Ratification * wa2" of ado)tin# )ro)o"al"+ a. directl&0 b& 2L8 votes of all ?: members b. b& 2L8 of a general conference called for t%is purpose b& 2L8 of t%e ?: and an& 9 members of t%e /4. :n& amendment t%us proposed s%all be sub5ect to ratification b& at least 2L8 of t%e ?:0 including t%e permanent members of t%e /4. "#$#" UN .eneral A""e&!l2 3%is is t%e central organ of t%e EN. 3%e principal deliberative bod& of t%e organi'ation and is vested wit% 5urisdiction over matters concerning t%e internal mac%iner& and operations of t%e EN. .A Co&)o"ition 4onsists of all t%e members of t%e EN. ;ac% member is entitled to send no more t%an > delegates and > alternates and as man& tec%nical and ot%er personnel as it ma& need. 3%e reason for t%is s&stem of multiple delegates is to enable t%e members to attend of several meetings t%at ma& be ta(ing place at t%e same time in t%e different organs or committees of t%e 2rgani'ation. However0 eac% delegation is entitled onl& to one vote in t%e decisions to be made b& t%e ?:.
.A -e""ion" ,. Re#ular "e""ion" 1 ever& &ear beginning t%e t%ird 3uesda& of /eptember. 2. -)ecial "e""ion" 1 ma& be called at t%e reIuest of t%e /40 a ma5orit& of t%e member states0 or one member wit% t%e concurrence of t%e ma5orit&. 8. E&er#enc2 ")ecial "e""ion 1 ma& be called wit%in 2= %ours at t%e reIuest of t%e /4 b& vote of an& 9 members or b& a ma5orit& of t%e members of t%e EN. -o&e I&)ortant %unction" of t$e .A

Page *7 of 29
4omposed of ,> members0 > of w%ic% are permanent. 3%e so7 called Big !ive are 4%ina0 !rance0 t%e ;uropean Enion0 t%e Enited Mingdom0 and t%e Enited /tates. 3%e ot%er ten members are elected for 27&ear terms b& t%e ?:0 > from t%e :frican and :sian states0 , from ;astern ;uropean states0 2 from Latin :merican states0 and 2 from @estern ;uropean and ot%er states. 3%eir terms %ave been so staggered as to provide for t%e retirement of W of t%em ever& &ear. 3%ese members are not eligible for immediate re7 election. 4%airmans%ip of t%e /4 is rotated mont%l& on t%e basis of t%e ;nglis% alp%abetical order of t%e names of t%e members. -C -e""ion" 3%e /4 is reIuired to function continuousl& and to %old itself in readiness in case of t%reat to or actual breac% of international peace. !or t%is purpose0 all members s%ould be represented at all times at t%e seat of t%e 2rgani'ation. -C Votin# Rule" ;ac% member of t%e /4 %as , vote0 but distinction is made between t%e permanent and t%e non7 permanent members in t%e decision of substantive Iuestions. Lalta Votin# %or&ula a. Procedural matters 1 9 votes of an& of /4 members b. /ubstantive matters 1 9 votes including > permanent votes. No member0 permanent or not0 is allowed to vote on Iuestions concerning t%e pacific settlement of a dispute to w%ic% it is a part&. <ule of 5reat@Power 0nani ityH a negative vote b& an& permanent member on a non7procedural matter0 often referred to as )veto*0 means re5ection of t%e draft resolution or proposal0 even if it %as received 9 affirmative votes. 7 :bstention or absence of a member is not regarded as veto Procedural and Di"tin#ui"$ed -u!"tanti e /atter"
@%ile t%e decisions of t%e :ssembl& %ave no legall& binding force for governments0 t%e& carr& t%e weig%t of world opinion0 as well as t%e moral aut%orit& of t%e world communit&. 3%e wor( of t%e EN &ear7round derives largel& from t%e decisions of t%e ?eneral :ssembl& 7 t%at is to sa&0 t%e will of t%e ma5orit& of t%e members as e<pressed in resolutions adopted b& t%e :ssembl&. 3%at wor( is carried outH a. b& committees and ot%er bodies establis%ed b& t%e :ssembl& to stud& and report on specific issues0 suc% as disarmament0 peace(eeping0 development and %uman rig%tsJ b. in international conferences called for b& t%e :ssembl&J and c. b& t%e /ecretariat of t%e EN 7 t%e /ecretar&7 ?eneral and %is staff of international civil servants. "#$#" UN -ecurit2 Council :n organ of t%e EN primaril& responsible for t%e maintenance of international peace and securit&. 3%eir responsibilit& ma(es t%e /4 a (e& influence in t%e direction of t%e affairs not onl& of t%e 2rgani'ation but of t%e entire international communit& as well. -C %unction" and Power"+ a. to maintain international peace and securit& in accordance wit% t%e principles and purposes of t%e ENJ b. to investigate an& dispute or situation w%ic% mig%t lead to international frictionJ c. to recommend met%ods of ad5usting suc% disputes or t%e terms of settlementJ d. to formulate plans for t%e establis%ment of a s&stem to regulate armamentsJ e. to determine t%e e<istence of a t%reat to t%e peace or act of aggression and to recommend w%at action s%ould be ta(enJ f. to call on embers to appl& economic sanctions and ot%er measures not involving t%e use of force to prevent or stop aggressionJ g. to ta(e militar& action against an aggressorJ %. to recommend t%e admission of new embersJ i. to e<ercise t%e trustees%ip functions of t%e EN in Nstrategic areasNJ and ,C. to recommend to t%e ?eneral :ssembl& t%e appointment of t%e /ecretar&7?eneral and0 toget%er wit% t%e :ssembl&0 to elect t%e +udges of t%e International 4ourt of +ustice. -C Co&)o"ition
Procedural &atter" include+

Page *9 of 29
e. Role of UN in International Peace and -ecurit2 /aving succeeding generations from t%e scourge of war was t%e main motivation for creating t%e Enited Nations0 w%ose founders lived t%roug% t%e devastation of two world wars. /ince its creation0 t%e EN %as often been called upon to prevent disputes from escalating into war0 or to %elp restore peace w%en armed conflict does brea( out0 and to promote lasting peace in societies emerging from wars. 3%e /ecurit& 4ouncil0 t%e ?eneral :ssembl& and t%e /ecretar&7?eneral all pla& ma5or0 complementar& roles in fostering peace and securit&. 2ver t%e decades0 t%e EN %as %elped to end numerous conflicts0 often t%roug% actions of t%e /ecurit& 4ouncil 7 t%e organ wit% primar& responsibilit&0 under t%e Enited Nations 4%arter0 for t%e maintenance of international peace and securit&. 3%reats to peace are discussed in t%e /ecurit& 4ouncil and it can issue ceasefire directives to prevent wider %ostilities. It ma& appoint special representatives or reIuest t%e /ecretar&7 ?eneral to do so or to use %is good offices. 3%e /ecurit& 4ouncil also deplo&s Enited Nations peace(eeping operations to %elp reduce tensions in troubled areas0 (eep opposing forces apart and create conditions for sustainable peace after settlements %ave been reac%ed. 3%e 4ouncil ma& decide on enforcement measures0 economic sanctions Bsuc% as trade embargoesA or collective militar& action. Conflict Pre ention 4onflict prevention remains one of t%e %ig%est ob5ectives of t%e Enited Nations. In toda&Ps world0 preventive action e<tends well be&ond traditional preventive diplomac& to involve a broad constellation of EN entities wor(ing across a wide range of disciplines 7 povert& eradication and development0 %uman rig%ts and t%e rule of law0 elections and t%e building of democratic institutions and t%e control of small arms0 to name 5ust a few. PeaceJee)in# 3%e first EN peace(eeping mission was establis%ed in ,9=.0 w%en t%e /ecurit& 4ouncil aut%ori'ed t%e deplo&ment of t%e Enited Nations 3ruce /upervision 2rgani'ation BEN3/2A to t%e iddle ;ast to monitor t%e :rmistice :greement between Israel and its :rab neig%bours. /ince t%en0 t%ere %ave been a total of F= EN peace(eeping operations around t%e world. 2ver t%e &ears EN peace(eeping %as evolved to meet t%e demands of different conflicts and a c%anging political landscape. Born at t%e time w%en t%e 4old
a. Iuestions relating to t%e organi'ation and meetings of t%e 4ouncilJ b. t%e establis%ment of subsidiar& organsJ and c. t%e participation of states parties to a dispute in t%e discussion of t%e /4. /ubstantial matters include t%ose t%at ma& reIuire t%e /4 under its responsibilit& of maintaining or restoring world peace to invo(e measures of enforcement. W$at i" t$e role of a /e&!er of t$e UN !ut not a &e&!er of t$e -ecurit2 Council> :lt%oug% not a member of t%e /40 it ma& participate Bwit%out voteA in t%e discussion of an& Iuestion before t%e 4ouncil w%enever t%e latter feels t%at t%e interests of t%at member are speciall& affected. /uc% member is li(ewise tobe invited b& t%e 4ouncil to participate Bwit%out voteAin t%e discussion of an& dispute to w%ic% t%e ember is a part&. 1+ Loola)aloo4a conducted ille#al in a"ion and conCue"t a#ain"t /oooKaKa. T$e UN -ecurit2 Council called for enforce&ent action a#ain"t Loola)aloo4a. Doe" enforce&ent action include "endin# of fi#$tin# troo)"> :H N2. 4ompliance wit% t%e resolution calling for enforcement action does not necessaril& call for t%e sending of fig%ting troops. 3%ere must be a special agreement wit% t%e /4 before sending of fig%ting troops ma& be %ad and suc% agreement s%all govern t%e numbers and t&pes of forces0 t%eir degree of readiness and general locations0 and t%e nature of t%e facilities and assistance to be supplied b& EN members. d. Pri ile#e" and I&&unitie" I&&unitie" Because t%e& en5o& international personalit&0 t%e& can also be given t%e immunities and privileges of international persons. Hasis for immunity: Not sovereignt& but t%e need for t%e effective e<ercise of t%eir functions. 3%ere is no common law doctrine recogni'ing t%e immunit& of I2s. 3%eir immunities come from t%e conventional instrument creating t%em. 3%e P%il. 4ourt0 in several cases0 %as affirmed t%is immunit&. However0 it was %eld t%at t%eir immunit& is not absolute. It is limited to acts performed in an official capacit&.

Page *8 of 29
participation at all levels of decision7ma(ing on conflict resolution and peacebuilding. Di"ar&a&ent In 2C,C0 world militar& e<penditures e<ceeded some ,.> trillion E/ dollars. 3%e need for a culture of peace and for significant arms reduction worldwide %as never been greater. :nd t%is applies to all classes of weapons from nuclear weapons to conventional firearms and landmines. /ince t%e birt% of t%e Enited Nations0 t%e goals of multilateral disarmament and arms limitation %ave been deemed central to t%e maintenance of international peace and securit&. 3%ese goals range from reducing and eventuall& eliminating nuclear weapons0 destro&ing c%emical weapons and strengt%ening t%e pro%ibition against biological weapons0 to %alting t%e proliferation of landmines0 small arms and lig%t weapons. 3%ese efforts are supported b& a number of (e& EN instruments. 3%e 3reat& on t%e Non7Proliferation of Nuclear @eapons BNP3A0 t%e most universal of all multilateral disarmament treaties0 came into force in ,9-C. 3%e 4%emical @eapons 4onvention entered into force in ,99-0 t%e Biological @eapons 4onvention in ,9->. 3%e 4ompre%ensive Nuclear73est7Ban 3reat& was adopted in ,99F0 %owever it %as not &et entered into force. 3%e ,99- ine7Ban 4onvention came into force in ,999. UN Action to Counter Terrori"& 4ountering t%e scourge of terrorism is in t%e interest of all nations and t%e issue %as been on t%e agenda of t%e Enited Nations for decades. :lmost no wee( goes b& wit%out an act of terrorism ta(ing place somew%ere in t%e world0 indiscriminatel& affecting innocent people w%o 5ust %appened to be in t%e wrong place at t%e wrong time. ;ig%teen universal instruments Bfourteen instruments and four amendmentsA against international terrorism %ave been elaborated wit%in t%e framewor( of t%e Enited Nations s&stem relating to specific terrorist activities. : global strateg& to counter terrorism was agreed in /eptember 2CCF w%ic% mar(s t%e first time t%at all ember /tates of t%e Enited Nations %ave agreed to a common strategic and operational framewor( to fig%t terrorism. 3%e /trateg& forms a basis for a concrete plan of actionH to address t%e conditions conducive to t%e spread of terrorismJ to prevent and combat terrorismJ to ta(e measures to build state capacit& to fig%t terrorismJ to strengt%en t%e role of t%e Enited Nations in combating terrorismJ and to ensure t%e respect of %uman rig%ts w%ile countering terrorism. Or#ani4ed Cri&e
@ar rivalries freIuentl& paral&'ed t%e /ecurit& 4ouncil0 EN peace(eeping goals were primaril& limited to maintaining ceasefires and stabili'ing situations on t%e ground0 so t%at efforts could be made at t%e political level to resolve t%e conflict b& peaceful means. EN peacema(ing e<panded in t%e ,99Cs0 as t%e end of t%e 4old @ar created new opportunities to end civil wars t%roug% negotiated peace settlements. : large number of conflicts were broug%t to an end0 eit%er t%roug% direct EN mediation or b& t%e efforts of ot%ers acting wit% EN support. 4ountries assisted included ;l /alvador0 ?uatemala0 Namibia0 4ambodia0 o'ambiIue0 3a5i(istan0 /ierra Leone0 and Burundi. :s t%e decade drew to a close0 continuing crises led to new operations in t%e Democratic Republic of t%e 4ongo0 t%e 4entral :frican Republic0 3imor Leste0 /ierra Leone and Mosovo. 3%e nature of conflict %as also c%anged over t%e &ears. 2riginall& developed as a means of dealing wit% inter7 /tate conflict0 EN peace(eeping %as been increasingl& applied to intra7/tate conflicts and civil wars. :lt%oug% t%e militar& remain t%e bac(bone of most peace(eeping operations0 toda&Ps peace(eepers underta(e a wide variet& of comple< tas(s0 from %elping to build sustainable institutions of governance0 t%roug% %uman rig%ts monitoring and securit& sector reform0 to t%e disarmament0 demobili'ation and reintegration of former combatants0 and demining. Peace!uildin# 3%e e<perience of recent &ears %as also led t%e Enited Nations to focus as never before on peacebuilding 7 efforts to reduce a countr&Ps ris( of lapsing or relapsing into conflict b& strengt%ening national capacities for conflict management0 and to la& t%e foundations for sustainable peace and development. Building lasting peace in war7torn societies is among t%e most daunting of c%allenges for global peace and securit&. 3%e Enited Nations establis%ed t%e Peacebuilding 4ommission in 2CC> to better anticipate and respond to t%e c%allenges of peacebuilding. Wo&en: )eace and "ecurit2 @%ile women remain a minorit& of combatants and perpetrators of war0 t%e& increasingl& suffer t%e greatest %arm. 3%e EN /ecurit& 4ouncil recogni'ed t%at including women and gender perspectives in decision7ma(ing can strengt%en prospects for sustainable peace wit% t%e unanimous adoption of resolution ,82> on women0 peace and securit&. 3%e landmar( resolution specificall& addresses t%e situation of women in armed conflict and calls for t%eir

Page *A of 29
2rgani'ed crime t%reatens peace and %uman securit&0 violates %uman rig%ts and undermines economic0 social0 cultural0 political and civil development of societies around t%e world. 3ransnational organi'ed crime manifests in man& forms0 including as traffic(ing in drugs0 firearms and even people. :t t%e same time0 organi'ed crime groups e<ploit %uman mobilit& to smuggle migrants and undermine financial s&stems t%roug% mone& laundering. 3%e vast sums of mone& involved can compromise legitimate economies and directl& impact public processes b& Pbu&ingP elections t%roug% corruption. 2rgani'ed crime %as diversified0 gone global and reac%ed macro7economic proportionsH illicit goods ma& be sourced from one continent0 traffic(ed across anot%er0 and mar(eted in a t%ird. 3ransnational organi'ed crime can permeate government agencies and institutions0 fuelling corruption0 infiltrating business and politics0 and %indering economic and social development. :nd it is undermining governance and democrac& b& empowering t%ose w%o operate outside t%e law. 3%e transnational nature of organi'ed crime means t%at criminal networ(s forge bonds across borders and adapt as new crimes emerge. In s%ort0 transnational organi'ed crime transcends cultural0 social0 linguistic and geograp%ical borders and must be met wit% a concerted response. 3%e Enited Nations 2ffice on Drugs and 4rime BEN2D4A wor(s to combat transnational organi'ed crime and is t%e guardian of t%e Enited Nations 4onvention against 3ransnational 2rgani'ed 4rime B2rgani'ed 4rime 4onventionA and t%e t%ree supplementar& Protocols 7on 3raffic(ing in Persons0 /muggling of igrants and 3raffic(ing of !irearms.
A. DIPLO/ATIC AND CON-ULAR LAW a. Diplomatic Law b. 4onsular Law c. /pecial issions d. Prevention and Punis%ment of 4rimes against Diplomatic :gents "#$#" a. Di)lo&atic Law ,. Rig%t of diplomatic intercourse 2. Rig%t of t%e state to send and receive

Page *; of 29
,. Deat%. 2.A Resignation. 8.A Removal. =.A ;<tinction of t%e state. >.A @ar. F.A :bolition of office. -.A Recall. ..A Dismissal. b. c. d. 4onsular Law /pecial issions Prevention and Punis%ment of 4rimes against Diplomatic :gents
diplomatic missions wLc enables state to carr& on friendl& intercourse 8. ?overned b& t%e Dienna 4onvention on Diplomatic Relations B,9F,A a. :ctive rig%t of legation 1 send diplomatic representatives b. Passive rig%t of legation 1 receive diplomatic representatives %unction" of Di)lo&atic /i""ion"+ ,. representing sending state in receiving stateJ 2. protecting in receiving state interests of sending state and its nationalsJ 8. negotiating wit% government of receiving stateJ =. promoting friendl& relations between sending and receiving states and developing t%eir economic0 cultural and scientific relationsJ >. ascertaining b& all lawful means conditions and developments in receiving state and reporting t%ereon to government of sending stateJ and F. in some cases0 representing friendl& governments at t%eir reIuest. a. A#reation 1 process in appointment of diplomatic envo&. @%ere states resort to an informal inIuir& BenIuir&A as to t%e acceptabilit& of a particular envo&0 to w%ic% t%e receiving state responds wit% an informal conformit& BagrementA. b. Letre de CreanceDLetter of CredenceA 1 wit% t%e name0 ran( and general c%aracter of %is mission0 and a reIuest for favorable reception and full credence. A#ent" of Di)lo&atic intercour"e ,. Head of state 2. !oreign secretar& or ministr& 8. embers of t%e diplomatic service =. /pecial diplomatic agents appointed b& t%e %eads of state >. ;nvo& ceremonial
Minds of 4onsuls ,. consules missi 1 professional or career consuls w%o are nationals of sending state and are reIuired to devote t%eir full7 time to disc%arge t%eir dutiesJ and 2. consules electi 1 ma& or not be nationals of sending state and perform consular functions onl& in addition to t%eir regular callings. 1. RanJ"+ 2. consul7general 1 %eads several consular districts0 or one e<ceptionall& large consular districtJ 8. consul 1 ta(es c%arge of a small district or town =. or portJ >. vice7consul 1 assists t%e consulJ and F. consular agent 1 usuall& entrusted wit% t%e performance of cerain functions b& t%e consul. -. DutiesH .. Protection of t%e interest of t%e sending state 9. Promotion of t%e commercial economic0 cultural V scientific relations of t%e sending V receiving state. ,C. 2bservations of condition V developments in t%e receiving state V report t%ereof to t%e sending state. ,,. Issuance of passport V ot%er travel to nationals of t%e sending state V visas or appropriate documents to persons wis%ing to travel to t%e sending state. ,2. /upervision V inspection of vessels and aircraft to t%e sending state. A))oint&ent ? * or &ore docu&ent" are nece""ar2 !efore t$e a""u&)tion of con"ular function+ ,. Letters patent7 letter of appointment or commission wLc is transmitted b& t%e sending state to t%e secretar& of foreign affairs of t%e countr& w%ere t%e consul is to serve. 2. ;<eIuator7 t%e aut%ori'ation given to t%e consul b& t%e sovereign of t%e receiving state0 allowing %im to e<ercise %is function wit%in t%e territor&.
Diplomatic 4orps 7: bod& consisting of all diplomatic envo&s accredited to t%e same local or receiving state :ppointment of :mbassador ,. In t%e P%ilippines it is t%e president w%o appoints B/ec.,F0 :rt.- of t%e constitutionA send V instructs t%e diplomatic consular representatives V %is prerogative to determine t%e assignments of t%e countr&Gs diplomatic representatives caanot be Iuestioned. B?R no. 9=C-CA Ter&ination of t$e di)lo&atic &i""ion+

Page *6 of 29
Bpersonal0 real0 national0 regional0 municipalA e<cept aA indirect ta<es bA duesLta<es on private real propert& in receiving state unless being %eld on be%alf of sending state for t%e purpose of t%e mission cA estate0 in%eritance0 succession dA ta<es on private income and source from receiving state and capital ta<es on investments in commercial ventures in receiving state eA c%arges levied for specific services fA registration0 court or record fees0 mortgage dues0 stamp dut& wit% respect to immovable -.A ;<emption from customs dutiesLta<es aA articles for use of mission bA personal use of envo& or famil& B%ouse%oldA cA baggage and effects entitled to free entr& and normall& wit%out e<amination dA :rticles addressed to ambassadors0 ministers0 c%arges de affairs0 e<empt from customs inspection eA :rticles addressed to representatives ot%er t%an c%iefs of mission 7 usual customs treatment
Ter&ination of con"ular &i""ion+ ,. @it%drawal of t%e e<eIuaturJ 2.A e<tinction of t%e stateJ 8.A @arJ =.A usual wa&s of terminating an official relations%ip. Pri ile#e" and i&&unitie"+ ,. Inviolabilit& of t%eir correspondence0 arc%ives0 V ot%er documents. 2. !reedom of movement V travel 8. Immunit& from 5urisdiction for acts performed in official capacit& =. ;<emption from certain ta<es V duties. >. /pecial ission 1 Bnot foundA F. Prevention and punis%ment of crime against t%e diplomatic agents
1.
Per"onal In iola!ilit2 0 not lia!le to an2 for& of arre"t or detention.
R.:. -> penali'es a person w%o assaults0 stri(es0 wounds0 offers violence to t%e person of an ambassador Bin addition to RP4 penalties and sub5ect to t%e rules of reciprocit&A - e<cept self7defense - reasonable p%&sical restraint In iola!ilit2 of )re&i"e" and arc$i e" - premises occupied b& t%e mission receiving state ma& not enter wLo - private residence of diplomatic agent t%e consent of t%e envo& e<cept e<treme necessit& 8. Rig%t of official communication 7 no interference wit% t%e rig%t to communicate to sending state or ot%er envo&s in receiving state b& an& means =.A Immunit& from local 5urisdiction 7 BcriminalA w%et%er for official or private acts. Remed& is to as( for recall. Immunit& from civilLadministrative 5urisdictions not absolute. ;<ceptions areH BaA real action relating to private immovable found in receiving state BbA action relating to succession 7 diplomat is e<ecutor0 administrator0 %eirLlegatee BcA action relating to professionalLcommercial activit& in t%e receiving state outside of official functions. easures of e<ecution ma& be ta(en against envo& provided t%at it will be done wit%out infringing t%e inviolabilit& of %is person or residence. >.A ;<emption from subpoena 7 Diplomats cannot be compelled to testif& B5udicial or administrativeA wit%out t%e consent of t%eir governments. Not even b& deposition. F.A ;<emption from 3a<ation 7 :ll duesLta<es *.

Page ,< of 29

Public and Private International Law Version 5.0

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Public and Private International Law Version 5.0

Transféré par

Droits d'auteur :

Formats disponibles

PUBLIC AND PRIVATE INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW

4onsist mainl& from t%e lawma(ing aut%orit& of eac% state.

Disputes are resolved t%roug% international