UNITED NATIONS
ECONOMIC AND SOCIAL COUNCIL - organ charged with
1. GENERAL ASSEMBLY
Composition: All members of the UN (as of 1996: 185 member
States)
Function: The GA may discuss any question or matter within the
scope of the Charter or relating to the powers and functions of any
other organ. It is also vested with jurisdiction over matters
concerning internal machinery ands operations of the UN.
2. SECURITY COUNCIL
Composition: 15 members:
a) 5 Permanent Members (China, France, UK, US, Russia)
b) 10 non-permanent: elected for 2 year terms by the General
Assembly.
Function: the maintenance of international peace and
security.
Q: What is the "double veto"?
A: In all non-procedural matters, each permanent member is given
a 'veto' - a Security Council decision is ineffective if even one
permanent member votes against it. The veto does not ordinarily
apply to Procedural matters. However, a permanent member may
exercise a 'double veto' when it vetoes any attempt to treat a
question as procedural, and then proceed to veto any draft
resolution dealing with that question.
3. SECRETARIAT - CHIEF ADMINISTRATIVE ORGAN OF THE UN
4.
promoting social progress and better standards of life in larger
freedom
5. TRUSTEESHIP COUNCIL - organ charged with administration of
Int'l Trusteeship System.
6. INTERNATIONAL COURT OF JUSTICE - judicial organ of the UN.
USE OF FORCE
Under Article 2(4) of the UN Charter, all member States are bound
to refrain from the threat or use of force against the territorial
integrity or political independence of a State.
Recognized exceptions:
1) self-defense
2) military action taken or authorized by the UN or competent
Regional organizations (such as NATO).
A CALVO CLAUSE is a provision inserted in contracts, in which the
foreigner agrees in advance not to seek the diplomatic protection of
his national State.
In general, International Courts have disregarded such clauses, as
the right to diplomatic protection is a right which belongs to a State,
and waiver from an individual does not bind his State.
STATE IMMUNITY (JURE IMPERII and JURE GESTIONIS)
Originally, under customary international law the doctrine of
absolute state immunity applied, covering all areas of State activity
and recognizing only very narrow exceptions.
Nowadays, the rule is to adopt a doctrine of qualified immunity --
that is, immunity is granted to foreign States only in respect of their
governmental acts (acts jure imperii), not in respect of their
commercial acts (acts jure gestionis).
DIPLOMATIC IMMUNITY
Diplomatic Immunity is a principle of customary international law
that grants immunity to diplomatic representatives, in order to
uphold their dignity as representatives of their respective states and
to allow them free and unhampered exercise of their functions. In
the Philippines, immunity is claimed by request of the foreign state
for endorsement by the Department of Foreign Affairs. The
determination by the executive department is considered a political
question that is conclusive upon Philippine Courts (4blue95).
INTERNATIONAL CONTRACTS
Usually, agreements between States and foreign corporations
contain stipulations as to which national legal system governs the
contract. Occasionally, however, in case of powerful multinational
companies, such contracts are placed not under any single system
of municipal law, but under international law, general principles of
law, or the provisions of the contract itself.
The reason for concluding these so-called internationalized
contracts is to establish a balance between the parties and prevent
the State party from evading its obligations under the contract by
changing its own internal law. This is mostly secured by an
arbitration clause referring disputes under the agreement to an
international body.
What are the so-called Mandates and Trust Territories?
The Mandates were the overseas possessions of the defeated states
of Germany and Turkey which were placed by the League of Nations
under the administration of mandatories to promote their
development and ultimate independence. (Harris, Case and
Materials on International Las, 5th ed., p. 131.)
When the United Nations replaced the League of Nations, the
system of Mandates was replaced by the System of Trust Territories.
Does the United Nations exercise sovereignty over the territories?
In the affirmative, how is this jurisdiction exercised?
The United Nations exercised residuary sovereignty over the Trust
Territories through the Trustee Powers, who exercised the powers
of sovereignty subject to supervision and accountability to the
United Nations. (Oppenheim-Lauterpacht, International Law, Vol. 1,
7th ed., pp. 213-214.) (Since there are no more Trust Territories, this
is just a matter of historical interest.)
BAR :On October 13, 2001, members of Ali Baba, a political
extremist organization based in and under the protection of Country
X an espousing violence worldwide as a means of achieving its
objectives, planted high-powered explosive and bombs at the
International Trade Tower (ITT) in Jewel City in Country Y, a member
of the United Nations. As a result of the bombing and the collapse
of the 100-story twin towers, about 2000 people, including women
and children, were killed or injured, and billions of dollars in
property were lost.
Immediately after the incident, Ali Baba, speaking through its leader
Bin Derdandat, admitted and owned responsibility for the bombing
of ITT, saying that it was done to pressure Country Y to release
captured members of the terrorist group. Ali Baba threaded to
repeat its terrorist acts against Country Y if the latter and its allies
failed to accede to Ali Baba’s demands. In response, Country X
demanded to the government authorities of Country Y for the
purpose of trial and “in the name of justice.” Country X refused to
accede to the demand of Country Y.
What action or actions can Country Y legally take against Ali Baba
and Country X to stop the terrorist activities of Ali Baba and
dissuade Country X from harboring and giving protection to the
terrorist organization? Support your answer with reasons. (55%)
1. Country Y may exercise the right of self-defense, as provided
under Article 51 of the UN Charter “until the Security Council has
taken measure necessary to maintain international peace and
security”. Self-defense enables Country Y to use force against
Country X as well as against the Ali Baba organization.
2. It may bring the matter to the Security Council which may
authorize sections against Country X, including measure invoking
the use of force. Under Article 4 of the UN Charter, Country Y may
use force against Country X as well as against the Ali Baba
organization by authority of the UN Security Council.
Give the three multilateral conventions on Human Rights adopted
under the direct auspices of the United Nations? (2%)
The following are multilateral conventions on Human Rights
adopted under the direct auspices o the United Nations.
1. International Covenant on Civil and Political Rights;
2. Conventions on the Elimination of All Forms of
Discrimination against Women;
3. Convention on the Rights of the Child;
4. Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment;
5. International Convention on the Elimination of All Forms
of Racial Discrimination;
6. Convention on the Prevention and Punishment of the
Crime of Genocide; and
7. International Convention on Economic, Social, and
Cultural Rights
BAR: State Epsilon, during peace time, has allowed foreign ships
innocent passage through Mantranas Strait, a strait within Epsilon’s
territorial sea which has been used y foreign ships for international
navigation. Such passage enabled the said ships to traverse the
strait between one part of the high seas to another. On June 7,
1997, a warship of State Beta passed through the above-named
strait. Instead of passing through continuously and expeditiously,
the ship delayed its passage to render assistance to a ship of State
Gamma which was distressed with no one nearby to assist. When
confronted by Epsilon about the delay, eta explained that the delay
was due to force majeure in conformity with the provision of Article
18(2) of the 1982 Convention on the Law of the Sea (UNCLOS).
Seven months later, Epsilon suspended the right of innocent
passage of warships though Mantranas Strait without giving any
reason therefore. Subsequently, another warship of Beta passed
through the said strait, and was fired upon by Epsilon drawing
attention to the existing customary international law that the
regime of innocent passage (even of transit passage) is non-
suspendable. Epsilon countered that Mantranas Strait is not a
necessary route, there being another suitable alternative route.
Resolve the above-mentioned controversy, Explain your answer
(4%)
HELD:

Assuming that Epsilon and Beta are parties to the UNCLOS, the
controversy may be resolved as follows:
Under the UNCLOS, warships enjoy a right of innocent passage. It
appearing that the portion of Epsilon’s territorial sea in question is a
strait used for international navigation, Epsilon has no right under
international law to suspend the right of innocent passage. Article
45(2) of the UNCLOS is clear in providing that there shall be no
suspension of innocent passage through straits used for
international navigation.
On the assumption that the straits in question is not used for
international navigation, still the suspension of innocent passage by
Epsilon cannot be effective because suspension is required under
international law to be duly published before it can take effect.
There being no publication prior to the suspension of innocent
passage by Beta’s warship, Epsilon’s act acquires no validity.
Moreover, Epsilon’s suspension of innocent passage may not be
valid for the reason that there is no showing that it is essential for
the protection of its security. The actuation of Beta’s warship in
resorting to delayed passage is for cause recognized by the UNCLOS
as excusable, i.e., for the purpose of rendering assistance to persons
& ship in distress, as provided in Article 18(2) of the UNCLOS.
Hence, Beta’s warship complied with the international law norms on
right of innocent passage.
THE INTERNATIONAL COURT OF JUSTICE
1) "Optional Clause" of the ICJ:
As a rule, the ICJ can operate only on the basis of the consent of
States to its jurisdiction. Such may take the form of a special
agreement between States to submit an existing dispute before the
Court (i.e. compromis).
However, under the 'optional clause' (art. 36(2), ICJ Statute), a State
may declare in advance that they recognize the jurisdiction of the
Court as compulsory ipso facto and without need of special
agreement, in relation to any other State accepting the same
obligation, in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law
c. existence of any fact which, if established, would constitute
breach of international obligation; and
d. nature or extent of reparation to be made for breach of
international obligation.
2006 BAR: In 1980, the United States filed with the International
Court of Justice a complaint against Iran alleging that the latter is
detaining American diplomats in violation of International law.
Explain how the international court of justice can acquire
jurisdiction over these contending countries.
Held: Article 36 of the ICJ statutes states that both parties must
agree to submit themselves to the jurisdiction of the international
court of justice.
June 12, 2007 notes: the seat of international court of justice is at
the Hague or elsewhere as it may decide, except during the judicial
vacations the dates and duration of which it shall fix (ICJ Statute Art
22)-2006 Bar Question
June 12,2007 notes: the court is composed of 15 members who
must be of high moral character and possess the qualifications
required in their respective countries for appointment to the
highest judicial office or are jurisconsults of recognized competence
in international law (art 2, ICJ statute)-2006 Bar Question

2) STARE DECISIS

4blue95: it does not apply to the ICJ.

Under the statute of the ICJ, previous decisions have no binding

force; in practice, however, the Court always takes past decisions
into account.

Q: What does it mean to decide a case EX AEQUO ET BONO?

A: It is to rule in justice and fairness -- equity overrides all other
rules of law. The ICJ has no power to decide a case ex aequo et
bono, unless all parties agree thereto [art. 38(2), ICJ Statute].

Q: Who has standing before the ICJ?

A: Only States may be parties in contentious proceedings before
the ICJ (art 34, ICJ Statute).

Under its Statue, give two limitations on the jurisdiction of the

International Court of Justice (2%)

The following are the limitations on the jurisdiction of the

International Court of Justice under its Statute:

1. Only states may be parties in cases before it. (Article 34).

2. The consent of the parties is needed for the court to
acquire jurisdiction over a case. (Article 36)