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Public International Law Midterms Exam Keys 2015

DIRECT SOURCE OF PIL necessarily include the said temple under

its territory.
Territorial Dispute
The Court however ruled that the
CASE IN POINT: CASE CONCERNING THE Siam/Thai never questioned the map for
TEMPLE OF PREAH VIHEAR fifty years. Additionally, it derived
(Cambodia v. Thailand) continuous benefit from the Treaty by
which the frontiers were demarcated.
Case Brief: Hence, the Temple of Preah Vihear
belongs to the territory of CAMBODIA.
The subject of the dispute was
sovereignty over the region of the Temple
of Preah Vihear. This ancient sanctuary,
partially in ruins, stood on a promontory of CASE IN POINT: REPARATIONS FOR
the Dangrek range of mountains which INJURIES SUFFERED IN THE SERVICE OF
constituted the boundary between THE UN (1949 ICJ REPORTS)
Cambodia and Thailand. The dispute had Case Brief:
its fons et origo in the boundary
settlements made in the period 1904- On December 3rd, 1948, the
1908 between France, then conducting General Assembly of the United Nations
the foreign relations of Indo-China, and adopted the following Resolution:
Siam. The application of the Treaty of 13
February 1904 was, in particular, involved. ||'Whereas the series of tragic events
That Treaty established the general which have lately befallen agents of the
character of the frontier the exact United Nations engaged in the
boundary of which was to be delimited by performance of their duties raises, with
a Franco-Siamese Mixed greater urgency than ever, the question of
Commission.(emphasis supplied) the arrangements to be made by the
United Nations with a view to ensuring to
The Mixed Commission proceeded its agents the fullest measure of
to survey the Dangrek range. The Siamese protection in the future and ensuring that
Government asked the French to draw up reparation be made for the injuries
a map with the delimitations which the suffered; and Whereas it is highly
commission came up with after the desirable that the Secretary-General
survey. This MAP which is the main source should be able to act without question as
of title by Cambodia, placed the Temple of efficaciously as possible with a view to
Preah Vihear within the Cambodian obtaining any reparation due; therefore
territory. It is now being assailed that the The General Assembly Decides to submit
Thai (then Siam) never approved of the the following legal questions to the
said map. Furthermore, according to International Court of Justice for an
Thailand, the real delineation would advisory opinion: 'I. In the event of an
agent of the United Nations in the

Public International Law Midterms Exam Keys 2015

performance of his duties suffering injury This capacity certainly belongs to the
in circumstances involving the State;
responsibility of a State, has the United
Nations, as an Organization, the capacity A State can bring an international
to bring an international claim against the claim against another State. Such a claim
responsible de jure or de facto takes the form of a claim between two
government with a view to obtaining the political entities, equal in law, similar in
reparation due in respect of the damage form, and both the direct subjects of
caused (a) to the United Nations, (b) to the international law. It is dealt with by means
victim or to persons entitled through him? of negotiation, and cannot, in the present
II. In the event of an affirmative reply on state of the law as to international
point I (b), how is action by the United jurisdiction, be submitted to a tribunal,
Nations to be reconciled with such rights except with the consent of the States
as may be possessed by the State of concerned. (…)
which the victim is a national?'|| But, in the international sphere,
The first question asked of the has the Organization such a nature as
Court is as follows: 'In the event of an involves the capacity to bring an
agent of the United Nations in the international claim? In order to answer
performance of his duties suffering injury this question, the Court must first enquire
in circumstances involving the whether the Charter has given the
responsibility of a State, has the United Organization such a position that it
Nations, as an Organization, the capacity possesses, in regard to its Members,
to bring an international claim against the rights which it is entitled to ask them to
responsible de jure or de facto respect. In other words, does the
government with a view to obtaining the Organization possess international
reparation due in respect of the damage personality? (…)
caused (a) to the United Nations, (b) to the The subjects of law in any legal
victim or to persons entitled through him?' system are not necessarily identical in
(…) Competence to bring an their nature or in the extent of their rights,
international claim is, for those and their nature depends upon the needs
possessing it, the capacity to resort to the of the community. Throughout its history,
customary methods recognized by the development of international law has
international law for the establishment, been influenced by the requirements of
the presentation and the settlement of international life, and the progressive
claims. Among these methods may be increase in the collective activities of
mentioned protest, request for an enquiry, States has already given rise to instances
negotiation, and request for submission to of action upon the international plane by
an arbitral tribunal or to the Court in so far certain entities which are not States. This
as this may be authorized by the Statute. development culminated in the
establishment in June 1945 of an

Public International Law Midterms Exam Keys 2015

international organization whose purposes and that it has capacity to maintain its
and principles are specified in the Charter rights by bringing international claims. (…)
of the United Nations. But to achieve
these ends the attribution of international Whereas a State possesses the
personality is indispensable. (…) totality of international rights and duties
recognized by international law, the rights
In the opinion of the Court, the and duties of an entity such as the
Organization was intended to exercise and Organization must depend upon its
enjoy, and is in fact exercising and purposes and functions as specified or
enjoying, functions and rights which can implied in its constituent documents and
only be explained on the basis of the developed in practice. The functions of the
possession of a large measure of Organization are of such a character that
international personality and the capacity they could not be effectively discharged if
to operate upon an international plane. It they involved the concurrent action, on the
is at present the supreme type of international plane, of fifty-eight or more
international organization, and it could not Foreign Offices, and the Court concludes
carry out the intentions of its founders if it that the Members have endowed the
was devoid of international personality. It Organization with capacity to bring
must be acknowledged that its Members, international claims when necessitated by
by entrusting certain functions to it, with the discharge of its functions.
the attendant duties and responsibilities,
have clothed it with the competence Question I (a) is as follows: 'In the
required to enable those functions to be event of an agent of the United Nations in
effectively discharged. Accordingly, the the performance of his duties suffering
Court has come to the conclusion that the injury in circumstances involving the
Organization is an international person. responsibility of a State, has the United
That is not the same thing as saying that it Nations, as an Organization, the capacity
is a State, which it certainly is not, or that to bring an international claim against the
its legal personality and rights and duties responsible de jure or de facto
are the same as those of a State. government with a view to obtaining the
reparation due in respect of the damage
Still less is it the same thing as caused (a) to the United Nations....?'
saying that it is 'a super-State', whatever
that expression may mean. It does not The question is concerned solely
even imply that all its rights and duties with the reparation of damage caused to
must be upon the international plane, any the Organization when one of its agents
more than all the rights and duties of a suffers injury at the same time. It cannot
State must be upon that plane. What it be doubted that the Organization has the
does mean is that it is a subject of capacity to bring an international claim
international law and capable of against one of its Members which has
possessing international rights and duties, caused injury to it by a breach of its
international obligations towards it. The

Public International Law Midterms Exam Keys 2015

damage specified in Question I (a) means by its agents in these circumstances will
exclusively damage caused to the sometimes have occurred in such a
interests of the Organization itself, to its manner that their national State would not
administrative machine, to its property be justified in bringing a claim for
and assets, and to the interests of which it reparation on the ground of diplomatic
is the guardian. It is clear that the protection, or, at any rate, would not feel
Organization has the capacity to bring a disposed to do so. Both to ensure the
claim for this damage. (…) efficient and independent performance of
these missions and to afford effective
When the Organization has support to its agents, the Organization
sustained damage resulting from a breach must provide them with adequate
by a Member of its international protection.
obligations, it is impossible to see how it
can obtain reparation unless it possesses (…) In order that the agent may
capacity to bring an international claim. perform his duties satisfactorily, he must
feel that this protection is assured to him
(…) Question I (b) is as follows: by the Organization, and that he may
....'has the United Nations, as an count on it. To ensure the independence
Organization, the capacity to bring an of the agent, and, consequently, the
international claim .... in respect of the independent action of the Organization
damage caused .... (b) to the victim or to itself, it is essential that in performing his
persons entitled through him?' duties he need not have to rely on any
(…) The traditional rule that other protection than that of the
diplomatic protection is exercised by the Organization (save of course for the more
national State does not involve the giving direct and immediate protection due from
of a negative answer to Question I (b). In the State in whose territory he may be). In
the first place, this rule applies to claims particular, he should not have to rely on
brought by a State. But here we have the the protection of his own State. If he had
different and new case of a claim that to rely on that State, his independence
would be brought by the Organization. might well be compromised, contrary to
the principle applied by Article 100 of the
(…) Having regard to its purposes Charter.
and functions already referred to, the
Organization may find it necessary, and And lastly, it is essential that-
has in fact found it necessary, to entrust whether the agent belongs to a powerful
its agents with important missions to be or to a weak State; to one more affected
performed in disturbed parts of the world. or less affected by the complications of
Many missions, from their very nature, international life; to one in sympathy or
involve the agents in unusual dangers to not in sympathy with the mission of the
which ordinary persons are not exposed. agent-he should know that in the
For the same reason, the injuries suffered performance of his duties he is under the
protection of the Organization. This

Public International Law Midterms Exam Keys 2015

assurance is even more necessary when State, not being a member, is justified in
the agent is stateless. Upon examination raising the objection that the Organization
of the character of the functions entrusted lacks the capacity to bring an international
to the Organization and of the nature of claim.
the missions of its agents, it becomes
clear that the capacity of the Organization On this point, the Court's opinion is
to exercise a measure of functional that fifty States, representing the vast
protection of its agents arises by majority of the members of the
necessary intendment out of the Charter. international community, had the power,
in conformity with international law, to
(…) The question remains whether bring into being an entity possessing
the Organization has 'the capacity to bring objective international personality, and not
an international claim against the merely personality recognized by them
responsible de jure or de facto alone, together with capacity to bring
government with a view to obtaining the international claims. Accordingly, the Court
reparation due in respect of the damage arrives at the conclusion that an
caused (a) to the United Nations, (b) to the affirmative answer should be given to
victim or to persons entitled through him' Question I (a) and (b) whether or not the
when the defendant State is not a defendant State is a Member of the
member of the Organization. In United Nations.
considering this aspect of Question I (a)
and (b), it is necessary to keep in mind the
reasons which have led the Court to give Can there be OVERLAPPING of sources of
an affirmative answer to it when the PIL?
defendant State is a Member of the
Organization. It has now been established A: Sources of PIL are divided into two:
that the Organization has capacity to bring Primary and Secndary.
claims on the international plane, and that
According to research, the
it possesses a right of functional
secondary means, such as teachings of
protection in respect of its agents.
highly-qualified publicists or law cases are
Here again the Court is authorized treated as mere “subsidiaries”.
to assume that the damage suffered
Therefore, using several primary
involves the responsibility of a State, and
sources at the same time may be allowed,
it is not called upon to express an opinion
provided that none of them violate the
upon the various ways in which that
other, e.g. a treaty violating an
responsibility might be engaged.
international customary law. But as to
Accordingly the question is whether the
overlapping of primary and secondary
Organization has capacity to bring a claim
sources, or using them as basis
against the defendant State to recover
simultaneously, authors are of the opinion
reparation in respect of that damage or
whether, on the contrary, the defendant

Public International Law Midterms Exam Keys 2015

that it is more of a subsidiary relationship domestic political concerns. International

(supplemental) rather than overlapping. law does have hierarchy of sources with
varying degree of influence.

The statutes of the International

IS THERE A HIERARCHY IN CONSIDERING Court of Justice dictate what sources of
THE SOURCES OF PIL? PIL the judiciary may refer to when
A: t is often stated that there is no determining advisory opinion or judgment.
hierarchy of sources in international law. Article 38 paragraph 1 of the statute of
Principles of soft law can thus be as the ICJ says "the court, whose function is
influential as treaty rules or custom. How to decide in accordance with international
far is this statement an accurate one of law such disputes as are cemented to it
the sources of international law? shall apply: international conventions,
whether general or particular, establishing
A pertinent example is, the General rules expressly recognised by the
Assembly resolutions, are not legally contesting States; international custom,
binding on themember states of the as evidence of a general practice
United Nations. The Rio de Janeiro UN accepted as law; general principles of law
Earth Summit in 1991, the Helsinki Final recognised by civilised nations; subject to
Act, also the Universal Declaration of the provisions of article 59, judicial
Human Rights, 1987 Montréal Protocol to decisions and the teachings of the most
the Ozone Convention these are highly qualified publicists of the various
considered soft law, which does not nations, as subsidiary means for
impose upon High Contracting Parties determination of rules of law."Article 38
legal obligation. originates from Permanent Court of
International Justice therefore is
Legal scholars argue that soft law
legitimate to question perceived hierarchy
is a contested concept within the
of sources in aforementioned article
international legal arena, the concept of
relevant to contemporary society.
soft law does carry sway in some nation-
states for example the German Foreign
Ministry would seem to endorse the notion
of soft law, illustrated by the CASE IN POINT: NORTH COTABATO v. GRP
Andorno paper on ' The Invaluable Role of PEACE PANEL
Soft Law in The Development of Universal ASSOCIATION
Norms in Bioethics'. Though considered a
soft element of Public International Law Case Brief:
(PIL), pursuing a soft legal outcome from
an international summit, may actually be On August 5, 2008, the
advantageous. States do not wish to be Government of the Republic of the
bound by commitments they are not able Philippines and the Moro Islamic
to fully implement, due to Liberation Front (MILF) were scheduled to

Public International Law Midterms Exam Keys 2015

sign a Memorandum of Agreement of the does it provide for a transitory status that
Ancestral Domain Aspect of the GRP - aims to prepare any part of Philippine
MILF Tripoli Agreement on Peace of 2001 territory for independence.
in Kuala Lumpur, Malaysia.

Invoking the right to information on

matters of public concern, the petitioners The BJE is a far more powerful
seek to compel respondents to disclose entity than the autonomous region
and furnish them the complete and official recognized in the Constitution. It is not
copies of the MA-AD and to prohibit the merely an expanded version of the ARMM,
slated signing of the MOA-AD and the the status of its relationship with the
holding of public consultation thereon. national government being fundamentally
They also pray that the MOA-AD be different from that of the ARMM. Indeed,
declared unconstitutional. The Court BJE is a state in all but name as it meets
issued a TRO enjoining the GRP from the criteria of a state laid down in the
signing the same. Montevideo Convention, namely, a
permanent population, a defined territory,
On the issue of ASSOCIATION, the a government, and a capacity to enter into
Supreme Court ruled: relations with other states.

The provisions of the MOA indicate,

among other things, that the Parties
aimed to vest in the BJE the status of an Even assuming arguendo that the
associated state or, at any rate, a status MOA-AD would not necessarily sever any
closely approximating it. portion of Philippine territory, the spirit
animating it – which has betrayed itself by
The concept of association is not its use of the concept of association –
recognized under the present runs counter to the national sovereignty
and territorial integrity of the Republic.
No province, city, or municipality,
not even the ARMM, is recognized under The defining concept underlying
our laws as having an “associative” the relationship between the national
relationship with the national government. government and the BJE being itself
Indeed, the concept implies powers that contrary to the present Constitution, it is
go beyond anything ever granted by the not surprising that many of the specific
Constitution to any local or regional provisions of the MOA-AD on the formation
government. It also implies the recognition and powers of the BJE are in conflict with
of the associated entity as a state. The the Constitution and the laws. The BJE is
Constitution, however, does not more of a state than an autonomous
contemplate any state in this jurisdiction region. But even assuming that it is
other than the Philippine State, much less covered by the term “autonomous region”

Public International Law Midterms Exam Keys 2015

in the constitutional provision just quoted, essential and accessory reservations

the MOA-AD would still be in conflict with when ratifying multilateral agreements.
it. Like the other states, they would face
significant transaction costs if forced to
consider reratification after being ejected
WHAT IS THE EFFECT OF RESERVATIONS from the treaty. A determination whether
IN MULTILATERAL TREATIES? to sever an invalid reservation should
therefore try to gauge the overriding goals
A: YES. However under a new principle, of state consent in relation to the
invalid reservations (unfair or violative of reservation in question
the Consitution of other states or
international customary law) may be REBUS SIC STANTIBUS
severed.1 In various multilateral The concept of rebus sic
agreements, especially those without a stantibus (Latin: “things standing thus”)
juridical supervisory organ, states may stipulates that, where there has been a
incur little cost for submitting accessory fundamental change of circumstances, a
reservations. Under the Vienna party may withdraw from or terminate the
Convention, state R generally suffers only treaty in question. An obvious example
bilateral costs if another state objects to would be one in which a relevant island
its reservation. That is, the effect of state has become submerged. A fundamental
O’s objection to state R’s reservation is change of circumstances, however, is not.
either (1) that the treaty terms to which
the reservation relates do not apply REQUISITES:
between the two states, or (2) that the
treaty as a whole does not enter into force 1. A fundamental change.
between the two states.31 Primarily owing 2. The fundamental change must not
to diplomatic sensitivities, states avoid have been forseen by the party
choosing the second option, if they are invoking the doctrine.
politically willing to enter an objection at 3. The doctrine must have been
all. As for the first option, because the rule invoked within a reasonable time
of reciprocity produces the exact same (case to case basis).
result as the reservation,32 state R loses 4. It cannot be applied retroactively.
nothing if state O selects this alternative.
States consequently have little incentive
to avoid submitting accessory

The intermediate states, like all

states, have an incentive to enter both

P. 531, R. Goodman, Human Rights Treaties, Invalid
Reservations and State Consent

Public International Law Midterms Exam Keys 2015

STATEHOOD: CONTINUITY AND atl.) because they

SUCCESSION belong to ALL of
mankind and cannot
State Continuity be subjected to the
The legal existence of a state appropriation of a
continues notwithstanding the changes in single state.
population, territory, or the form of Elements of Discovery:
government provided that the four
elements of statehood remain. i. Possession
ii. Administered – once a property is
State Succession discovered and occupied, a
The substitution of one state by government should be established
another, with the latter taking over the therein within a reasonable time.
rights and obligations of the former. 2. CESSION
*as differentiated with Succession of A derivative mode of acquisition by
Government which is the change in the which a territory belonging to one state is
form of government by another which transferred to the sovereignty of another,
takes over it. in accordance with the agreement
between them.


1. DISCOVERY AND OCCUPATION A derivative mode of acquisition by

Rules: which the territory of a state, in the course
i. The territory must not of war, is transferred or annexed to the
belong to any state (terra territory of the conquering state.
nullius) 4. ACCRETION
ii. The territory need not be
uninhabited but the Acquisition by natural process such
inhabitants must not as the gradual deposit of soil on the coast
possess a sufficient degree through the action of water or even by
of civilization as tested by human labor.
contemporary standards
(the existence of
government in any form). REMINDER: THIS LIST IS EXCLUSIVE; ANY
iii. There can be no claim or CLAIM BASED ON ACQUISITION BY A
 Res communes
(moon, sun, stars,

Public International Law Midterms Exam Keys 2015



Sabbah Zones of the Sea

- Cession; by virture of a gift by i. Internal waters (12 nautical miles

Brunei to the Sultan of Sulu, due to from the baseline)
our aid in quenching the unrest in Breadth: 12 nm
Brunei. This was later on Jurisdiction: ABSOLUTE
transferred to the sovereignty of ii. Contiguous Zone (12 nm after the
the Philippine Government. Hence, IW or 24 nm from the baseline)
our claim stands (and it is a valid Jurisdiction: LIMITED; by the fact
mode of acquisition under PIL ) that control over the area is only to
prevent infringement on customs,
Spratly’s or The Kalayaan Group of Islands fiscal, immigration, and sanitary
- Discovery & Occupation; the island laws.
is part of Palawan. iii. Exclusive Economic Zone (200 nm
from the CZ)
Jurisdiction: Sovereign rights are
limited to economic resources of
the sea, seabed and subsoil.
(Island of Palmas case: Territorial dispute iv. Continental Shelf (200 nm from the
between the US and Netherlands; Spain EEZ)
as third party) v. High seas (after CS)

- An incomplete or “just began” *The rules of the Zones of the Sea

mode of discovery. including the jurisdiction determination is
To illustrate: The Island of Palmas was
allegedly discovered by Spain. Since the RIGHT OF INNOCENT PASSAGE
island was part of Palawan, when the
The right of continuous and
Treaty of Paris came to effect, Spain
expeditious navigation of a foreign ship
“ceded” the Philippines along with the
through the territorial seas of a state for
Palmas to the US. The Court ruled that the
the purpose of traversing the sea without
island cannot be part of the cession since
entering its internal waters; Applicable to
Spain never occupied the island and
all kinds of ships.
hence, it had inchoate title to it.

It presupposes that a law was

violated by the foreign ship within the
internal waters/territorial waters/ the
contiguous zone. A pursuit or chase then

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Public International Law Midterms Exam Keys 2015

may be commenced by the coastal or

archipelagic state.
a. The law did not abandon the Sabah
CASE IN POINT: MAGALONA v. EXECUTIVE claim. This is evident on the provision of
SECRETARY Section 2 of RA 9522:

Regime of Islands Section 2. The definition of the baselines

of the territorial sea of the Philippine
The Supreme Court emphasized Archipelago as provided in this Act is
that RA 9522, or UNCLOS, itself is not a without prejudice to the delineation of the
means to acquire, or lose, territory. The baselines of the territorial sea around the
treaty and the baseline law has nothing to territory of Sabah, situated in North
do with the acquisition, enlargement, or Borneo, over which the Republic of the
diminution of the Philippine territory. What Philippines has acquired dominion and
controls when it comes to acquisition or sovereignty.
loss of territory is the international law
principle on occupation, accretion, cession b. UNCLOS may term our waters as
and prescription and NOT the execution of “archipelagic waters” and that we may
multilateral treaties on the regulations of term it as our “internal waters”, but the
sea-use rights or enacting statutes to bottom line is that our country exercises
comply with the treaty’s terms to delimit sovereignty over these waters and
maritime zones and continental shelves. UNCLOS itself recognizes that. However,
due to our observance of international
The law did not decrease the law, we allow the exercise of others of
demarcation of our territory. In fact it their right of innocent passage. No
increased it. Under the old law amended modern State can validly invoke its
by RA 9522 (RA 3046), we adhered with sovereignty to absolutely forbid innocent
the rectangular lines enclosing the passage that is exercised in accordance
Philippines. The area that it covered was with customary international law without
440,994 square nautical miles (sq. na. risking retaliatory measures from the
mi.). But under 9522, and with the international community.
inclusion of the exclusive economic zone,
the extent of our maritime are increased c. The classification of the KIG (or the
to 586,210 sq. na. mi. (See image below Spratly’s), as well as the Scarborough
for comparison) Shoal, as a regime of islands did not
diminish our maritime area. Under
If any, the baselines law is a notice to the UNCLOS and under the baselines law,
international community of the scope of since they are regimes of islands, they
the maritime space and submarine areas generate their own maritime zones – in
within which States parties exercise treaty- short, they are not to be enclosed within
based rights. the baselines of the main archipelago
Anent their particular contentions: (which is the Philippine Island group). This

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Public International Law Midterms Exam Keys 2015

is because if we do that, then we will be RECOGNITION

enclosing a larger area which would
already depart from the provisions of It is the act by which a state
UNCLOS – that the demarcation should acknowledges the existence of another
follow the natural contour of the state, a government or a belligerent
archipelago. community, and its willingness to deal
with the state, government or belligerent
Nevertheless, we still continue to as such under the rules of PIL.
lay claim over the KIG and the
Scarborough Shoal through effective NATURE OF RECOGNITION
occupation. Declarative Theory

Recognition is deemed
AERIAL DOMAIN: FIVE AIR FREEDOMS discretionary and political; Recognition
merely affirms an existing fact i.e. that a
1. Overflight without landing state possesses all the four elements of
2. Landing for non-traffic statehood. It may be granted or withheld
(commercial) purposes. at the pleasure of the recognizing state.
3. To put down traffic from state to (This is the majority view)
4. To embark traffic destined for the Constitutive Theory
state of the aircraft. Recognition is compulsory and
5. To embark traffic to or from a third legal; Once a state possesses all the
state. elements of statehood, it is mandatory for
the recognizing state to do so. It is
however said to be violative of Voluntary
CABOTAGE Consent. You cannot force another state
to recognize the existence of another.
Under this principle:

i. International airlines are not

allowed to conduct domestic flights JUSTIFICATIONS FOR RECOGNITION
in the territory of another state.
ii. There can be refusal to permit 1. THE TOBAR OR WILSON DOCTRINE
international aircrafts to take in It precludes recognition of a
passengers, mail and cargo within government established by
the territory of the host state. revolution, civil war , coup d’état, or
other forms of internal government
conflict UNTIL the freely elected
representative of the people have
organized a constitutional

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Public International Law Midterms Exam Keys 2015


It precludes the recognition of any
government established as a result 1. Sovereignty and Independence (not
of external aggression. absolute)
3. ESTRADA DOCTRINE 2. Property and Jurisdiction
It presupposes that there is a 3. Existence and Self-Dependence
political upheaval in a country. To (MOST IMPORTANT RIGHT)
deal or not to deal with the
government or anyone who has the
control of the state cannot be PRE-EMPTIVE STRIKE
construed as an expressed or
Pre-emptive strikes by individual
implied act of recognition.
nations or groups of nations without the
authorization of the Security Council are
It precludes diplomatic recognition
prohibited by the United Nations. In its
to any regime which came to power
preamble, the UN Charter states that the
by military force.
UN was established “to save succeeding
generations from the scourge of war,” and
It states that a state violates PIL
its substantive provisions obligate its
and infringes upon the rights of
members to “settle their international
other states if it recognizes a
disputes by peaceful means” (Article 2[3])
community which does not fulfill
and to “refrain in their international
the requirements of statehood.
relations from the threat or use of force
against the territorial integrity or political
The recognition of an entity which
independence of any State, or in any
is not legally a state is WRONG. It
manner inconsistent with the purposes of
constitutes an abuse of power of
the United Nations” (Article 2[4]).
recognition by the recognizing
state. Grotius says: a pre-emptive strike is NOT
justified. There must be am actual ground
to go to war.
1. Insurgency is the INITIAL STAGE of
Elihu Root says: a pre-emptive strike is
belligerency; belligerency is a
JUSTIFIED. A state cannot be expected to
serious and widespread conflict.
wait for the actual attack before it
2. Insurgency is initiated by military
launches its own.
authorities or other organized
armed group; belligerency is by an
organized civil government.

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