Pubic International Law Cus Notes

8/18/2019 Pubic International Law Cus Notes

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PUBIC INTERNATIONAL LAW

International law

• Body of legal rules which apply between sovereign states and such other

entities as have been granted international personality (Schwarzenberger)

•

Law of nations

Divisions of International Law

• Laws of peace

-govern normal relations of the states-govern states not involved in the war inter se-govern states when war ends and peace is restored

• Laws of war

-govern relations of warring states between hostilities

• Laws of neutrality

-govern relations of states with belligerents (hostile states) or those involved

with war

Distinctions with Municial Law

Private international law! also conict of laws, municipal law or private

law

• Pu"lic international law! relations of international persons inter se with in

the eld of international law- Monis#! a view that there is only one kind of ultimate substance- Dualis#! a theory that considers reality to consist of two irreducible elements or modes

!onism "uailsm

• #neness or unity of law • "ichotomy ( the process or practice

of making such a division) of law• $he main reason for the

essential identity of the %

spheres is that some

fundamental notions of

international law cannot be

comprehended w&o the

assumption of a superior legal

order from which the various

systems of municipal law are

derived by delegation

•

• Law is essentially a command

binding upon the sub'ects

independently of their will and

it is ultimately the conduct of

individuals which it regulates

•


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"L*S!

"ichotomy ( the process or practice of making such a division) of law!unicipal Law *nternational Law*ssued by a political superior for

observance by those under its authority

+ot imposed upon but simply adopted by

states as a common rule of action

among themselves law of sovereign over those sub'ected

to his sway

law not above but between sovereign

states and is therefore a weaer lawonsists mainly of enactments from the

lawmaing authority of each state

+ot derived from any particular

legislation but from such sources as

international customs, international

conventions and the general principles

of law.egulates the relations of individuals

among themselves or with their own

states

pplies to relations inter se of states and

other international persons

/iolations are redressed through local

administrative and 'udicial processes

0uestions are resolved thru state-to-

state transactions ranging from peaceful

methods lie negotiation and arbitration

to the hostile arbitrament ( judgment of an

arbiter or arbitrator ) of force lie reprisals

( the act or practice in international law of

resorting to force short of war in retaliation fordamage or loss suffered. b : an instance of

such action )or even warBreaches generally entail only individual

responsibility

.esponsibility for infractions is usually

collective in the sense that it attaches

directly to the state and not to its

nationals

Relation to Municial Law

• .ule1 without an e2press declaration to this e3ect, states admitted to the

family of nations are bound by the rules prescribed by it for the regulation ofinternational intercourse4

• $he law of nations, although not specially adopted by constitution or

municipal act, is essentially a part of the law of the land whose obligation

commences and runs with the e2istence of a nation

• Doctrine of Incororation1 a5rms the recognition of the principles of

international law in the constitutions6as in rt % of 789: onstitution


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Section 2. The Philippines renounces war as an instrument of national policy,

adopts the generally accepted principles of international law as part of the law of the

land and adheres to the policy of peace, equality, ustice, freedom, cooperation, and

amity with all nations.

• Doctrine of transfor#ation1 generally accepted rules of international law

are not per se binding upon the state by the lawmaing body and sotransformed into municipal law ; only when so transformed will they become

binding upon the state as part of its municipal law4

• Criteria alie$ in resolvin% con&icts "et #unicial an$ int'l laws!-basic rule1 attempt to reconcile the apparent contraindication and thereby

give e3ect, if possible to both systems of laweneral !acrthur in using the phrase ?processes

of any other government@ in said proclamation, to refer to 'udicial processes,

in violation of said principle of international law4


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invoe provisions in its constitution or its laws as a e2cuse for failure to

perform this duty644on the contrary

• !ost constitutions contain provisions empowering the 'udiciary to annul

treatises and the legislature to supersede them with statutes, establishing

the primacy of local law over the international agreement

•.F1 all cases involving the constitutionality of any treaty, e2ecutiveagreement or law shall be heard and decided by the S en banc, and no

treaty, e2ecutive agreement or law may be declared unconstitutional

without the concurrence of at least 7G members

• >onzales v heachnova1 whether an international agreement may be

invalidated by the courts, the onstitution authorizes the nullication of a

treaty not only when it the onstitution with the ongress but also when it

runs counter to an act of ongress

Basis of *nternational Law

• Law of +ature1 higher law or rule of human conduct independent of positive

enactment and even of special divine revelation and binding always and

everywhere in view of its intrinsic reasonableness- $here is a natural and universal principle of right and wrong,

independent of any mutual intercourse or compact , using reason or

conscience

• Law of oordination1 a more positive identication with acnowledgment of

the law is necessary to mae it binding on the states it purports to govern, so

that any state withholding its consent can disclaim any responsibility of

observance; implied in customary law and presumed in general principles oflaw

• Law of Dclectics or >roatians1 ather of international law; based on the dictate

of right reason (natural law)and practice of the states 4 in the event of conict

between the %, law of nature prevails

(anctions of International Law

• ompulsive force of reciprocal advantage and fear of retaliation

• ppeal to public opinion, publication of correspondence, censure by

Farliamentary vote, demand for arbitration with the odium attendant on a

refusal to arbitrate, rupture of relations, reprisal74 *nherent reasonableness of intCl law and that its observance will redound

to the benet of the whole society of nations%4 +ormal habits of obedience ingrained in the nature of man as a social

beingH4 .espect for world opinion to pro'ect an agreeable imageI4 onstant and reasonable fear that violations of intCl law might visit upon

the culprit the retaliation of other states


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J4 !achinery of nited +ations because of its moral inuence and power to

employ physical force

Enforce#ent of Intl' Law

• #bservance- sub'ective and mainly dependent on the volition (will) of the

entity which is supposed to be governed by the law• Dnforcement K process by which such observance may be compelled, by force

or threat of force74 $hrough international organizations or regional groups lie + and

#rganization of merican States- here grievances are presented, discussed, adoption of measures

necessary to compel compliance;- "one by + Security ouncil and *=, special arbitral tribunals

%4 $hrough amicable methods lie diplomatic tals or hostile measures

(retorsion- retaliation and reprisal-force short of war)- *f these fail, war is last resort where laws governing conduct of

hostilities and laws of neutrality are used by physical force bybelligerents and neutral states where violations of these measures

result to prosecution of war criminals and collection of reparationsH4 By containment of aggressionI4 By each member state treating international as part of their municipal law

)unctions of International Law

• Frimary fun21 to establish peace and order in the community of nations and

to prevent employment of force (war) in all intCl relations

• Fromote friendship by leveling the barriers (color and creed) that have so far

obstructed the fostering of a closer understanding in the family of nations

• $o encourage and ensure greater intCl cooperation in the solution of certain

common problems of a political, economic, cultural or humanitarian character

• ims to provide for the orderly management of the relations of states on the

basis of the substantive rules they agreed to observe as members of intCl

community

Distinctions with Other Concets

• *nternational morality or ethics- embodies those principles which govern the

relations of states from the higher standpoint of conscience, morality, 'ustice

and humanity ; similar to law of nature and ?international comity@ (those

rules of courtesy observed by states in their mutual relations, in thatviolations of its precept are not constitutive of grounds for legal claims)

• *nternational diplomacy- the application of intelligence and tact to the

conduct of o5cial relations between independent states ; similar to jus

feciale (law of heralds) or law of negotiations and diplomacy- >ave e3ect to formal declarations of war, rendered advice on

Auestions respecting war and peace, acted as heralds and

ambassadors and received and entertained envoys of foreign states


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• *nternational administrative law- body of laws and regulations created by the

action of international conferences or commissions which regulate the

relations and activities of national and international agencies with respect to

those material and intellectual interests which have received and

authoritative universal recognition

- *nterest are international communications, protection of literary andartistic rights, prevention of crime and promotion of health and

education

Present (tate of Int'l Law (in a state of transition)

• .eceding conditions between combatants and non-combatants

• >rowing claims over maritime domain of states

• >eneral disapprobation of intervention

• #utlawry of war

• D2pansion of the horizons of man into the realm of outer space

(ources of International LawArt *+ IC,! sources of intCl law are classied as primary or secondary

Frimary or direct sources- treaties, conventions, customs and general principles of

law

Secondary or indirect sources- court decisions and writings of publicists

Treaties

(o#e are -articular international law. which is is limited in operation

because it applies only to certain states with participation on the treaty- Bilateral treaties

•

>eneral rule1 to be considered a direct source of international law, a treatymust be concluded by a sizable number of states and thus reect the will or

at least the consensus of the family of nations4

• Dven if only agreed upon by a few member, a treaty may become binding to

the whole world if it is intended to lay down rules for observance by all- Law-maing treaties (ongress of /ienna 797J, Feace of estphalia

7MI9, "eclaration of Faris 79JM, >eneva .ed ross onvention 79MI,

+ harter 78IJ)

Custo#

• practice which has grown up between states and has come to be accepted

as binding by mere fact of persistent usage over a long period of time- D21 the practice of granting immunities to foreign heads of states or

diplomats in the territory of the local state pursuant to principle of

e2traterritoriality

• defect of customary law is the di5culty of determining when a practice can

be considered to have hardened into custom and thus acAuired obligatory

character


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• nother defect is the inability to ad'ust swiftly to the moving developments

of the international society which it is supposed to regulate

• "istinguished from usage in that the latter while considered a long

established way of doing things is not coupled with conviction that it is

obligatory and right (maritime ceremonials in the open sea)

/eneral Princiles of Law

• !ostly derived from the law of nature and observed by most states due to

belief that it is good and 'ust

• +o international convention necessary to bring them into e2istence

• niversal in application because of the unilateral decision of a considerable

number of states to adopt and observe them in recognition of their intrinsic

merit (e2 .oman law)

• Frescription, pacta sunt servanda (Nagreements must be ept), estoppels,

consent and res 'udicata

• *dentied based on reason and conscience

(econ$ar0 (ources

• rt H9 *= does not distinguish between those rendered by intCl tribunals lie

*= and arbitration bodies and those promulgated only by the national courts

as long as they are a correct application and interpretation of the law of

nations

• $he decisions of the courts of other country will be received not with

authority but with respect

• ourt decisions of every country are reective of how provisions of the law of

nations are understood• S$.D "D*S*S1 not applicable so the decision of a court in 7 case will have

only the persuasive value in the decision of a subseAuent one

• ritings of publicists1 to Aualify must be fair and unbiased representation of

international law and by an acnowledged authority in the eld

International l Co##unit0

• $he body of 'uridical entities which are governed by the law of nations

• SB=D$S of *+$D.+$*#+L L1 omposed of states and other intCl

persons lie +, /atican ity, colonies and dependencies, mandates andtrust territories, *ntCl administrative bodies, belligerent communities and

individuals

• Sub'ect1 an entity that has rights and responsibilities under the law; has an

intCl personality that can assert rights and be held directly responsible under

the law of nations; faculty of motivation (it can be a proper party in

transactions involving the application of the law of nations among members

of the international community)


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• #b'ect1 person or thing in respect of which rights are held and obligations

assumed by the sub'ect; not directly governed by the rules of international

law; its rights received and its responsibilities imposed directly, thru the

instrumentality of an intermediate agency

Develo#ent of International Co##unit0• Feace of estphalia of 7MI9 signaled the start of modern intCl community

• harter members1 Dngland, Spain, Fortugal, the >erman onfederation,

Foland and *talian cities, Eolland and Switzerland, .ussia, merican

.epublic4

• $reaty of Faris of 79JM1 #ttoman Dmpire was admitted as the 7st non-

hristian member F $ED ?#+D.$ # Durope@ and soon 'oined by

Fersia, =apan, hina and Siam

• fter *, the Baltic States were also accepted44then came *ndia, Dgypt

and other rabian Stares

•

fter **, .F then other sian States

States

• group of people living together in a dened territory under an independent

government organized for political ends and capable of entering into

international relations

• s an intCl person, may have full or Aualied status depending upon the

degree of its control over its e2ternal a3airs

• Legal concept; while nation is only a racial or ethnic concept

• +ation1 indicates a relation of birth or origin and implies a common race,

usually characterized community of language and customs; may comprise

several states

• *t is possible for a state to be made of more than 7 nation

• nation need not be a state

• .eAuisites for a state&nation to e regarded as an international person1

74 Fermanent population%4 "ened territoryH4 >overnmentI4 Sovereignty or independenceJ4 .ecognition by other statesM4 Fossession of a su5cient degree of civilization

4 Feople

• .efers to human beings living within its territory• #f both se2es and su5cient number to maintain and perpetuate

themselves

• *ndividuals of di3erent races, languages and religions very often actually

form one people of one stateB4 $erritory

• i2ed portion of the surface of the earth in which the people of the state

reside


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• +omads and ?moving states@ do not posses this element

• dened territory is important for 'urisdictional reasons and in order to

provide for the needs of the inhabitants

• Fractically should be big enough to be self-su5cient and small enough to

be easily administered and defended

4 >overnment• gency thru which the will of the State is formulated , e2pressed and

realized

• *mportant because a state must have an entity to represent it in its

relations with other states

• orm of government does not matter as long as it is able to maintain

order within the realm and comply with its responsibilities under the law

of nations

• >roup of anarchists or society of pirates cannot Auality as a State

"4 Sovereignty

• *ndependence1 e2ternal aspect or manifestation of sovereignty, the power

of the state to direct its own e2ternal a3airs without interference or

dictation from other states4

• $he degree of its freedom determines the status of the state as an

international person

• D2cessive assertion of freedom may defeat the e3ective operation of the

law of nations

• ?Sovereignty is the Auicsand on which the foundations of international

law are built@

apacity of States

• $he possession of the elements above does not necessarily entitle a state tomembership admission because174 $he recognition of states is generally considered a political act which may

not be compelled%4 $he restricted capacity of the state to discharge international obligations,

owing either to treat commitments or to its limited resources

• Switzerland not admitted because of its permanent neutralization ,

preventing it from participating in enforcement or preventive action

• Liechstentein, ndorra, !onaco and San !arino application denied due to its

limited size, small population, lac of an army, geographical position and

deputation to other states

• + however wanted as many members to be involved accepted those whowere not admitted in the League of +ations lie ngola and >abon

Classi1cation of (tates

• "ependent 1 having full international personality; suzerainty (occurs where

a region or people is a tributary to a more powerful entity which controls its foreign affairs while

allowing the tributary vassal state some limited domestic autonomy.) and protectorate –no full

control of their external relations

http://en.wikipedia.org/wiki/Regionhttp://en.wikipedia.org/wiki/Regionhttp://en.wikipedia.org/wiki/Regionhttp://en.wikipedia.org/wiki/Nationhttp://en.wikipedia.org/wiki/Tributary_statehttp://en.wikipedia.org/wiki/Power_(philosophy)http://en.wikipedia.org/wiki/Foreign_affairshttp://en.wikipedia.org/wiki/Foreign_affairshttp://en.wikipedia.org/wiki/Vassal_statehttp://en.wikipedia.org/wiki/Vassal_statehttp://en.wikipedia.org/wiki/Vassal_statehttp://en.wiktionary.org/wiki/autonomyhttp://en.wikipedia.org/wiki/Nationhttp://en.wikipedia.org/wiki/Tributary_statehttp://en.wikipedia.org/wiki/Power_(philosophy)http://en.wikipedia.org/wiki/Foreign_affairshttp://en.wikipedia.org/wiki/Vassal_statehttp://en.wiktionary.org/wiki/autonomyhttp://en.wikipedia.org/wiki/Region


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• *ndependent1 simple or composite, either of which may be neutralized; not

sub'ect to dictation from others74 Simple states1 one which is placed under a single and centralized

government e2ercising power over both its internal and e2ternal a3airs

(Fhilippines and Eolland)

%4 omposite states1 consists of % or more states, each with its ownseparate government but bound under a central authority e2ercising , to a

greater or less degree , control over its e2ternal relations- .eal union and federal union1 full international personality as

distinguished from a confederation (imperfect intCl person)a4 .eal nion- created when % or more states are merged under a

unied authority so that thy from a single intCl person thru which

they act as 7 entity-they retain their separate identities-+orway and Sweden 797J to 78GJ-ustria and Eungary 79M: to 7879

-Dgypt and Syria b4 ederal nion- or federation is a combination of % or more

sovereign states which upon merger cease to be states, resulting in the creation of

a new state with full international personality to represent them in their e2ternal

relations as well as certain degree of power over their domestic a3airs and

inhabitants

- S

-some federations do not e2ercise full direction of e2ternal a3airs

(>erman Dmpire)

c4 onfederation- organization of states which retain internal

sovereignty and some degrees of e2ternal sovereignty, while delegating to the

collective body power to represent them as a whole for certain and specied

purposes (imperfect person) lie >erman sates in 79MM

d4 Fersonal nion- when % or more independent states are brought

together under the rule of the same monarch, who nevertheless does not become

one intCl person for the purpose of representing any or all of them; Belgium and

ongo; each member remains a state and an intCl person, although its e2ternal

policies are directed by the same ruler who dictates the foreign a3airs of the other

components of the union; not a composite state because no new intCl person is

created to represent it in the international relations

e4 *ncorporate nion K union of % or more states under a central

authority empowered to direct internal and e2ternal a3airs and possessed of aseparate international personality4 *t is di3erent from real union in that real union

involves control only of e2ternal a3airs (O , +orthern *reland)

Neutrali2e$ (tates

• state may be neutralized thru agreement with other states by virtue of

which the latter will guarantee its integrity and independence provided it


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refrains from taing any act that will involve it in war or other hostile activity

e2cept for defensive purposes4

• or a neutralized state1 it is desirable for it will remove itself from the

vicissitude of international politics and all their attendant e2pense and

an2iety

•or guaranteeing states1 humanitarian or political reason is compassion forthe wea and small state, balance of power considerations, the necessity for

a bu3er state to relieve international friction et al

• Switzerland, Belgium, Laos

Deen$ent (tates

• +aturally the idea of a state implies independence or of possessing the

indispensable attribute of sovereignty

• $hese are states sub'ect to the control of other states in the direction of their

e2ternal a3airs; semi-sovereign states74 Frotectorate- en'oys a degree of independence , a voluntary act of

subordination to the protecting state by contrast with the concession of

autonomy made by the suzerain sate to the vassal state%4 Suzerainty-

Unite$ Nations

• n organization of states , regarded as a intCl person for certain purposes4

• *t en'oys certain privileges and immunities lie non-suability, inviolability of

its premises and archives and e2emption from ta2ation

• .ight of legation1 it can send and receive diplomatic agents who possess the

same rights accorded regular envoys4

• ccording to *=1 the + can assert a diplomatic claim on behalf of its o5cials- lso treaties may also be concluded by it thru the >eneral ssembly,

the Security ouncil, and the Dconomic and Social ouncil- $rust territories ( colony or territor0 placed under the administration

of one or more countries by commission of the nited +ation) are

supposed to be under the residual sovereignty of the +- *t can even wage war thru the e2ercise of its power to undertae

enforcement action on case of threat to or breach of intCl peace

3atican Cit0

• *taly and /atican concluded Lateran $reaty for the purpose of assuring to the

Eoly See absolute and visible independence and of guaranteeing to it

absolute and indisputable sovereignty in the eld of international relations4

• Oelsey1 in the Lateran treaty, *taly recognizes the full ownership, e2clusive

dominion and sovereign authority and 'urisdiction of the Eoly See over the

/atican ie a certain territory within .ome4 $hat means that *taly gave up a

part of its territory for the purpose of a new state being established on it4 $his

territory does not e2ceed 7GG hectares, nevertheless it is the territory of a


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state4 *ts population does not reach seven hundred and is composed almost

e2clusively of individuals residing therein by virtue of their o5ce4

+evertheless, it is the population of a state4 Since the Fope is the

government, all the elements of a state in the sense of international law are

present4

Colonies an$ Deen$encies

• Fart and parcel of a parent state thru which all its e2ternal relations are

transacted with other states

• +o legal standing in the family of nations

• Eave been allowed to participate on their own right in international

undertaings granted practically the status of a sovereign state; in this

capacity they are acting as international persons

• hy did the colonies decline in numberP "ue to nationalism and self-

determination

Man$ates an$ Trust Territories

• System of mandates established after 7 to avoid outright anne2ation of

the underdeveloped territories taen from the defeated powers and to place

their administration under some from of international supervision

• H inds of trust territories1

74 $hose held under the mandate under the League of +ations%4 $hose territories detached from the defeated states after **H4 $hose voluntarily placed under the system by the states responsible for

their administration

• $rusteeship in strategic areas1 Security ouncil as administering authority

•

$rusteeship in non-strategic areas1 >eneral ssembly as administeringauthority

• ith a degree of international personality but not sovereign

Belli%erent Co##unities

when a portion of the population rises up in arms against a legitimate

government of the state, the upheaval is ordinarily regarded as a merely

internal a3air

State is held internationally responsible for all the in'uries caused upon third

states by reason of the disorder and members of the uprising accountable for

their acts under the laws of the legitimate government

Belligerency- when a conict widens and is aggravated by rebels

Sub'ect to laws of war neutrality

?inchoative state@ vested with full rights of visitation, search and seizure of

contraband articles on the high seas, blocade and the lie and is held

directly responsible for its unlawful acts

International A$#inistrative Bo$ies


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• !ay be vested with international personality upon Q reAuisites1

74 $heir purposes are mainly political%4 $hey are autonomous ( not sub'ect to the control of any state)

• *nternational Labor #rganization, ood and gricultural #rganization, orld

Eealth #rganization and *nternational !onetary und1 may enter into

agreements with + thru Dconomic and Social ouncil, sub'ect to approval of>eneral ssembly

• Duropean ommission of "anube and the entral ommission for +avigation

of .hine1 both e2ercise legislative, administrative and 'udicial powers directly

applicable to individuals

In$ivi$uals

$he state of the individual and not the individual himself can be a proper

party in the assertion of a claim for damages

*ndividuals can be an ob'ect of international law thru his own state in matters

involving other states

$he individual is the basic unit of his society, national and international and

must therefore be governed by the laws of this society including those

binding on states as agent of the individual45 + charter rea5rms in fundamental human rights, in the dignity and

worth of the human person and in the eAual rights of men women65 $he niversal "eclaration of Euman .ights, in recognition of the inherent

dignity and of the eAual and inalienable right of all members of the human

familyRproclaims the basic individual rights which are nations are called

upon to foster75

UNITED NATION(

• Symbol of manCs undismayed determination to establish for all nations a rule

of law that would forever banish the terrible arbitrament of war in the

solution of international disputes

• Dnvisioned as the answer to the universal yearning for peace and friendship

among people regardless of color or creed

• Started after 7 when League of +ations was founded but was wea add to

fact that S was not a member thereof44shattered in 78H8


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• 78IM1 L#+ was dissolved

• !oscow "eclaration1 7st formal step toward the creation of + , signed by

hina, Soviet nion, O and S on #ct HG, 78IH

• $hese states recognized the necessity of establishing at the earliest

practicable date a general international organization based on the principle1

sovereign eAuality of all peace-loving states and open to membership by allsuch states for the maintenance of international peace and security

• Same year was $eheran onference where .ooosevelt, hurchill and Stalin

acnowledge the supreme responsibility resting upon them and all the + to

mae a peace which will command the goodwill of the overwhelming mass of

people of the world and banish the scourge and terror of war for many

generations

• "umbarton #as Froposal1 initial blueprint, prepared at a conference in

ashington buy O, SS. and S, hina representatives

• Security ouncil was conceived as the ey body of the + with conferees and

rance as permanent members

• harter of +1 JG delegates of nations met and prepared and unanimously

approved; charter came to force on #ct %I, 78IJ with the ling of the

instruments of ratication by the members of the Big ve and a ma'ority of

the other signatories

• .esulted to creation of not only 'uridical but international personality

• + is not a state or a super state but was granted such powers as sending

and receiving diplomatic agents, conclude treaties and govern territories

UN Charter

• Lengthy consisting of 777 articles besides the preamble and the concluding

provisions also includes the Statute of the *nternational ourt of =usticeanne2ed to and made an integral part of it

• harter may be considered a treaty because it derives its binding force from

the agreement of the parties to it

• *t may also be regarded as a constitution as it provides for the organization

and operations of the di3erent organs of the + and for the adoption of any

change in its provisions through a formal process of amendment

• harter intended to apply not only to members of the organization but also to

non-member states for the maintenance of peace and security

• rt 7GH1 in the event of conict between the obligations of the members of

the + under the present charter and their obligations under anyinternational agreement , their obligations under the present charter shall

prevail

• mendment is done by %&H of the members of the >eneral ssembly and

ratied in accordance with their respective constitutional processes by %&H of

the members of the +, including all the members of the Security ouncil


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• general conference may be called by ma'ority vote of the >eneral

ssembly and any 8 members of the Security ouncil for the purpose of

reviewing the charter

• mendments may be proposed by %&H vote of the conference and shall tae

e3ect when ratied by %&H of the members of +, including the permanent

members of the Security ouncil

Prea#"le

• *ntroduces the harter and sets the common intentions that moved the

original members to unite their will and e3orts to achieve their common

purposes

Puroses

• onstitute the raison dCetre of the + and are the aggregation of the

common ends

Princiles

• rt % deals with the methods and the regulating norms according to which

the + and its members shall discharge their obligations and endeavor to

achieve their common ends- .ule 7 is based on one of the fundamental rights of states1 right to

eAuality4 ll members of the organization regardless of size or inuence

have the same vote in the >eneral ssembly 4 ertain special rights

over and above those other members are reserved to the Big

ive(United States, ritain, !rance, "ussia and #hina)$ smaller states are not

subjected to the same financial responsibilities as the affluent members- .ule % is based on pacta sunt servanda which calls for the observance

of treaties in good faith4 $he charter partaes of the nature of a treaty

and as such, its success depends on the willingness of the member-

states to comply with the obligations they have assumed under the

harter- .ule H itself is a generally accepted principle of international law4 !ore

common amicable settlement of disputes are active participation in the

*= and Security ouncil and sometimes even if the >eneral ssembly- .ule I is the !#S$ *!F$ + principle4 $his rule prohibits threat or force

upon the territorial integrity or political independence of any member

of the +- *n .ule J, the e5cacy of the + will depend on the cooperation

e2tended to it by the member states 4 #therwise, resolutions will be

lie paper decisions and lip service 4 to ensure their full implementation

active involvement is necessary- .ule M4 Dven if treaties are binding only between signatory states, non-

member states are also covered by the obligations imposed by the

harter for the maintenance of peace and security


16/22

- .ule : is nown as ?"omestic =urisdiction lause@ 1 as long as the

matter remains internal, it cannot be the sub'ect of intervention by the

+4 .ebellion cannot come under the 'urisdiction of the + e2cept

where the internal conict aggravates into a threat to or an actual

breach of intCl peace and security or where the parties voluntarily

invoe and submit to the 'urisdiction of the + for the settlement oftheir dispute4

Me#"ershi

• $here are % inds of member1 original and elective depending on the

manner of their admission and does not involve any di3erence in the

en'oyment of rights or the discharge of obligations4

• #riginal or charter members1 those states who signed and ratied the

harter of the + by participation in + onference on *nternational

#rganization at San rancisco or at the "eclaration of the +; J7 original

members• Dlective members1 admitted by the decision of the >eneral ssembly upon

favorable recommendation of the Security ouncil; Aualications174 *t must be a stateReven mini states lie Bahrain, Bhutan, 0atar and

#man%4 *t must be peace-loving--- sub'ective standard that can lead to political

rather than legal decisionsH4 *t must accept the obligations of the harter ---although reAuiring formal

declaration form applicant, it is sub'ect to the Ith and Jth reAtCs as

determined by the organization itself I4 *t must be able to carry out these obligations---J4 *t must be willing to carry out these obligations

• an the >eneral ssembly admit an applicant for membership without a

favorable recommendation of the Security ouncilP-dmission reAuires a4 recommendation from the Security ouncil

b4 decision of the >eneral ssembly

(usension of Me#"ers

Suspension in terms of the e2ercise of rights and privileges only

D3ected by %&H of those present and voting in the >eneral ssembly upon

the favorable recommendation of at least 8 members of the Security ouncil,

Aualied by a ma'ority vote

D3ects of suspension18 Frevention from participating in the meetings of the >eneral ssembly8 Frevention form being elected8 Frevention form continuing to serve in the Security ouncil or

$rusteeship ouncil8 +ationals of the suspended may however continue to serve in the

secretariat and *= as they are regarded as international o5cials or

civil servants acting for the organization


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8 !embers are still sub'ect to discharge its obligations under the harter

lie payment of its nancial contribution to the #rganization

E9ulsion of Me#"ers

or persistent violation of the principles contained in the harterD2pulsion done by %&H of those present and voting in the >eneral ssembly

upon the recommendation of the Security ouncil by a Aualied ma'ority

vote

im1 to provide for a stronger penalty than suspension against a member

who wouldCve demonstrated not satisfying the basic reAtCs of membership

With$rawal of Me#"ers

• +o provision for withdrawal in the harter so as not to encourage successive

withdrawals and hence weaen the organization

•

.easons for withdrawal174 $he organization was revealed to be unable to maintain peace or could do

so only at the e2pense of law and 'ustice%4 $he memberCs rights and obligations as such were changed by a harter

amendment in which it had not concurred or which it nds itself unable to

acceptH4 n amendment duly accepted by the necessary ma'ority wither in the

>eneral ssembly or in a general conference is not ratied

Or%ans of the UN

• M Frincipal organs1

74 >eneral ssembly%4 Security ouncilH4 Dconomic and Social ouncilI4 $rusteeship ouncilJ4 *=M4 Secretariat

• Subsidiary organs1

74 !ilitary Sta3 ommittee%4 *nternational Law ommissionH4 ommission on Euman .ights

The /eneral Asse#"l0

• $he most representative of the organs of the +

• onsists of all the members of the organization, each entitled to send not

more than J reps and J alternates as well as technical sta3 it may need

• >44 meet in regular annual session on H rd $uesday of September or in a

special session at the call of the ma'ority of it member or reAuest of the

Security ouncil

• Dach member has 7 vote ; decisions are taen up by %&H present and voting


18/22

• unctions of the >eneral ssembly1

74 "eliberative%4 SupervisoryH4 inancialI4 DlectiveJ4 onstituent

The (ecurit0 Council

• $he ey organ of the + in the maintenance of peace and security

• onsists of J permanent (Big ive) and 7G elective members (elected by %-yr

terms by the >1 J frican-sian, % estern Duropean and 7 Daster Duropean)

• +on-permanent states are not eligible for immediate election

• Fermanent members are given preferred position because of the feeling that

they would be called upon to provide the leadership and physical force that

might be needed to preserve world peace

• S is supposed to be organized and all its members need to be represented

at all timesRready in case any crisis should arise• hairmanship is rotated every month on basis of the Dnglish alphabetical

order

• /oting is governed by alta formula devised at the rimea onference and

incorporated in rt %: of the harter- Dach member shall have 7 vote- "istinction made between Big ive and the non-permanent members in the

resolution of substantive Auestions- Frocedural matters to be decided by the a5rmative vote of any 8 or more

members- "ecision on non-procedural Auestions reAuires concurrence of at least 8 but

including all members- +o member is allowed to vote on Auestions concerning the pacic

settlement of a dispute to which it is a party

• Frocedural matters1

74 0uestions relating to the organization and meetings of the S%4 Dstablishment of subsidiary organsH4 Farticipation of state parties to a dispute in the discussions of the organ

• +on- Frocedural matters- $hose that may reAuire the S under its responsibility of maintaining

or restoring world peace to invoe measure s of enforcement- ?characterization@ of a Auestion

•

bove rules enable a permanent member to cast a ?veto@ and therebyprevent agreement on a non-procedural Auestion even if supported by other

members of the S

• !ay also ?double veto@ by means of which it can disapprove any proposal to

consider a Auestion merely procedural and thereafter vote against the

Auestion itself on the merits


19/22

• bsence in voting non-procedural matter is not considered a veto; proposal

deemed adopted if approved by at least 8 members of the S including the

rest of the permanent members

• Furpose of alta formula1 to ensure the unity of the permanent members in

the measure s to be taen in the pursuit of its primary function of maintaining

international peace and security• Limitation1 dispute must be international, not an internal dissension (civil war)

, unless the parties submit the matter to the +

• Frinciple1 + S shall not intervene in any matter within the domestic

'urisdiction of any state

• /oting and onstituent unctions of the S1

74 dmission and discipline of the members of the +%4 Dlection of the 'udges of *= and the Secretary >eneralH4 mendment of the harter

The Econo#ic an$ (ocial Council

• Before was only 79 members but now already %:, by the amendments to the

harter in 78MJ

• Became JI members in 78:7

• ll members are elected by the >eneral ssembly for H-yr terms and may be

re-elected immediately

• $he DS shall meet in regular session as reAuired and at special sessions at

the reAuest of the ma'ority

• Dach member has 7 vote and decisions are reached by a ma'ority of those

present and voting

• !embers of the + and reps of the specialized agencies may be allowed to

participate , without vote, in the deliberations of the council• >eneral ssembly is vested with the responsibility for the promotion of the

international and social cooperation

• *n the performance of its duty, DS is assisted by certain subsidiary organs

lie the ommission of the Status of omen and the regional economic

commissions for Durope, sia, ar Dast and Latin merica

The Trusteeshi Council

$he organ charged with the duty of assisting the S and the > in the

administration of the *nternational $rusteeship system

omposed of 1

45 $he members of the + administering trust territories65 $he permanent members of the S not administering the trust territories75 #ther members elected for H-year terms by the > as may be necessary

to ensure the total number of members of the $rusteeship ouncil is

eAually divided between those members of the + which administer trust

territories and those which do not


20/22

• $ shall meet in regular sessions as reAuired and at special sessions at the

reAuest of the ma'ority

• Dach member has 7 vote and decisions are reached by a ma'ority of those

present and voting

• unctions of $1

74 onsider reports submitted by the administering authorities%4 ccept petitions and e2amine them in consultationH4 Frovide periodic visits to the trust territoriesI4 $ae such other actions in conformity with the terms of the Auestionnaire

on the political, economic, social and educational advancement of

inhabitants of the trust territories

• $ has become largely obsolete because of the conversion of many trust

territories into mini-states

International Court of ,ustice

=udicial organ of the + which functions in accordance with the Statute

ll members are ipso facto parties to the Statute non-member may become a party on conditions to be determined in each

case by the > upon recommendation of the S

7J members elected by absolute ma'ority in the > and the S

=udges must be of high moral character and posses Aualications reAuired in

their respective countries for appointment to their highest 'udicial o5ces or

are 'urisconsults of recognized competence in international law

+o % of them may be nationals of the same state, if there are T7, the one

eldest will be considered elected

$he election of 'udges should assure the representation in the court of the

main form s of civilization and the principal legal systems of the world

!embers have a term of 8 years and may be re-elected

+o 7 'udge can be removed unless he has ceased to fulll the reAuired

conditions by unanimous opinion of the other members

Fresident and /F shall be elected for a term of H years and may be re-elected

*t shall remain permanently in session at Eague or elsewhere, e2cept during

'udicial vacations and may meet either en banc in issues such as labor,

transit and communications

ll Auestions are decided by a ma'ority of the 'udges present, the Auorum

being nine when the full court is sitting

unctions of the ourt1

45 $o decide contentious cases65 $o render advisory opinions

#nly States (including non-members of +) may be parties in cases

=urisdiction of the ourt1 based on the consent of the parties as manifested in

the ?optional 'urisdiction clause@ in rt HM of the Statute

omprises of all cases referred to and all matters provided in the harter,

treaties or conventions in force


21/22

dvisory opinions may be given by the court upon reAuest of the > or S as

well as other organs of the +, when authorized by the >, on legal

Auestions arising within the scope of their activities

The (ecretariat

$he chief administrative organ of the + headed by the Secretary->eneral $he Sec>en is chosen by the > upon recommendation of the S

Sec>en term is 2ed at J years by resolution of the > and may be re-elected

Sec>en is the highest representative of the + and is authorized to act in its

behalf

hen acting on behalf of the +, he is entitled to full diplomatic immunities

and privileges which only the S may waive

$he immunities and privileges of other ey o5cials may be waived by the

Sec>en

Signicant is the Sec>enCs duty to bring attention of the S any matter which

in his opinion may threaten international peace and security; personallymediated by him upon authorization of the S

Sec gen also acts as secretary in all meetings of the >U S, DS and $ and

perform such other functions as may be assigned to him by theses organs

Ee prepares the budget of the + for submission to the >, provides

technical facilities to the di3erent organs and in general coordinates its vast

administrative machinery

Sec>en and his sta3 members are international o5cers solely responsible to

the #rganization and are prohibited from seeing or receiving instruction

from any government or any other authority e2ternal to the +


22/22

T:E CONCEPT O) T:E (TATE

• State is the basic unit of the international community and is also the principal

sub'ect of international law

Creation of the (tate

• Dlements of the State1 people, government, territory and sovereignty6when

complete is treated as an international person

• !ethods to acAuire the State status are1 revolution, unication, secession,

assertion of independence , agreement and attainment of civilization• S-revolution, *taly-unication (Frinciple of nationalities), Bangladesh-

secession (withdrawal from Faistan), Fhilippines- assertion, +etherlands-

creation, Foland- agreement, =apan- attainment of civilization

Princile of (tate Continuit0

• s long as the State retains all its essential elements, it can withstand

changes in circumstances and still remain the same corporate person

E9tinction of a (tate

•

Documents

Pubic International Law Cus Notes