the states participating bind themselves legally to act in a particular way to set up particular
Distinguish between customary international law and relations between themselves
I. SOURCES OF INTERNATIONAL LAW Upon what is the obligatory nature of treaties founded upon?
- Upon the customary international law principle pacta sunt servanda
Professor Christopher Greenwood, Sources of International Law: An
Introduction; Law-making treaties vs. treaty-contracts
Malcolm Shaw, Chapter 3: Sources, in INTERNATIONAL LAW 6TH ED. (pp. 69-128);
PHIL. CONST. art. 7 § 20-21; art. 8 § 4; art. 18 § 25; What are law-making treaties?
Statute of the International Court of Justice, Article 38(1); - Intended to have universal or general relevance
North Sea Continental Shelf Case: Summary (I.C.J. Reports, 1969); and - Intended to have an effect generally, not restrictively
Mijares v. Ranada, G.R. No. 139325, April 12, 2005. - Agreements whereby states elaborate their perception of international law upon
any given topic or establish new rules which are to guide them for the future in
II. CUSTOMARY INTERNATIONAL LAW their international conduct
- Require the participation of a large number of states to emphasize this effect
International Law Commission, Identification of Customary International - May produce rules that will bind all
Law, UNITED NATIONS A/CN.4/659 (14 March 2013) - Constitute normative treaties
International Law Commission, Identification of Customary International o Agreements that prescribe rules of conduct to be followed
Law (The role of decisions of national courts in the case law of What are treaty-contracts?
international courts and tribunals of a universal character for the - They apply only as between two or a small number of states
purpose of the determination of customary international law); UNITED
NATIONS, A/CN.4/691 (30 March 2016) [GR] Parties that do not sign and ratify the particular treaty in question are not bound by its
terms
III. TREATIES [E] However, where treaties reflect customary law then non-parties are bound, not because
(12 February 2018) it is a treaty provision but because it reaffirms a rule or rules of customary international law
- non-parties may come to accept that provisions in a particular treaty can generate
Malcolm N. Shaw customary law, depending always upon the nature of the agreement, the number of
Article 38 – international conventions, whether general or particular, establishing rules participants and other relevant factors
expressly recognized by the contracting states
Treaties
I. Also known as: 1969 Vienna Convention on the Law of Treaties
- Conventions May 23, 1969
- International agreements
- Pacts Article 3: Agreements between states that are not in written form are not covered under the
- General acts convention, but the following are not affected:
- Charters - Legal force of the agreements
- Statutes - Application to the agreements of rules in the convention that are otherwise still
- Declarations applicable to them under international law
- Covenants - application of the Convention to the relations of States as between themselves
under international agreements to which other subjects of international law are
II. Treaties also parties.
- Express agreements
- Form of substitute legislation undertaken by states Who represents the States in terms of concluding treaties in their favor?
- Superior to custom (a form of tacit agreement) 1. A person who
- Essentially giving away a part of the sovereignty of the state - produces appropriate full powers
- by the practice or intention of the states, purports to have the powers to do such purpose
Preamble/preambulatory clauses – state why the treaty was entered into 2. OR a person who in virtue of their functions and even without full powers who is:
- (Article 7) heads of states, diplomatic organizations, representatives accredited by a state to When can a state choose from differing provisions of a treaty?
international organizations - When the party states which provisions it relates and accepts
What governs the power of the president to delegate the executive power to his or her alter A state is bound to refrain from acts which would defeat the purpose of the treaty when
ego’s? - It has signed the treaty, or exchanged the instruments, until it has made clear that
- Administrative Code it has no intention of being bound
Full powers – governed by the domestic laws of the state - It has expressed its intention to be bound, pending entry into force of the treaty
What if a person is not authorized as such concludes a treaty? Can a state formulate a reservation to a treaty?
- Such act produces no legal effect, unless thereafter confirmed by the state - Yes, upon signing, ratifying, or accepting a treaty
What are the exceptions to this? Or when can a state not formulate a reservation to a treaty?
How is the text of a treaty adopted? - When the treaty expressly prohibits reservation
- If it is among two parties, by the consent of all the State parties participating in the - When the treaty provides only for specific reservations, and the intended
drawing up of the treaty reservation does not fall under such
- If it is in an international conference, by vote of 2/3 of the States present and - When the reservation is contrary to the objectives and purposes of the treaty
voting, unless by the same majority they decide to apply a different rule
Does a reservation require acceptance by the other State party?
How is the text of the treaty authenticated? - No, unless the treaty so provides
- By the procedure provided in the text or as agreed upon by the parties who drew
up the treaty EXCEPT: A reservation requires the acceptance of the other party when:
- Or if at an international conference, by the signing, signing ad referendum or - When it appears from the limited number of the state parties and the objects and
initialing of the representatives or of the Final Act of a corporate incorporating the purposes of the treaty that its entirety be made applicable to all the parties, and is
text an essential condition for the consent to be bound
o Unless otherwise provided, the reservation is deemed accepted when no
What are the means of expressing consent to be bound by a treaty objections is raised by the end of 12 months from the notification of the
- Signature reservation or the date on which it expressed itself to be bound by the
o If the treaty provides that signing shall have that effect, or the parties treaty, whichever is later
intend for the signature to have that effect - When a treaty is a constituent instrument of an international organization (unless
- Exchange of instruments constituting a treaty otherwise provided), acceptance by the competent organ of that organization is
o If the instruments provide that their exchange shall have that effect or if required
otherwise it were the intention for the party to be such - Article 20 paragraph 4 ang haba
- Ratification, Acceptance, or Approval
o If the treaty provides for consent to be by way of ratification, acceptance, May a reservation be withdrawn?
or approval, or otherwise intended by the parties - Yes, and the consent of the other parties are no longer needed
o Why is there a need for ratification? o UNLESS THE TREATY OTHERWISE PROVIDES
Necessary for a state to cede some of their sovereignty - BUT IT becomes operative only upon notice to the other state
- Accession - Must be in writing
o Where there are open treaties that you can accede to any time
o Intention to be bound during the conference itself but even if the state May an objection to the reservation be withdrawn?
did not express such intention during the conference, the state may still - Yes, at any time
express its accession after the negotiation phase/conference o UNLESS THE TREATY OTHERWISE PROVIDES
- Exchange or deposit of instruments of ratification, acceptance, or approval - But it becomes operative only upon notice to the party who made the reservation
o Shows consent upon their exchange or deposit, or upon notification if - Must be in writing
agreed upon
- Or by any other means agreed upon How does a treaty enter into force?
- In such manner and upon such date as the treaty provides OR as the negotiating
When can a state opt to only be bound by a part of the treaty? parties may agree upon
- Only when the treaty allows - Otherwise, as soon as consent to be bound has been established
Can a treaty be provisionally applied?
- Yes, if it so provides or if the negotiating states have in some manner agreed as What are the grounds which invalidate the consent of a state to a treat?
such - Error
o But the provisional application ceases when a state expresses its o If the error is on a fact which the state relied upon when it consented to
intention not to be bound the treaty
- Fraud
What does “PACTA SUNT SERVANDA” mean? (Article 26) o Induced by fraudulent conduct of another state
- Every treaty in force is binding upon the parties to it and must be performed by - Corruption of the representative of a state
them in good faith. o By another state thru threats or acts directed against him
- It is a general principle of law o The consent of the representative is without legal effect
o It cant be breached technically, you can only act either consistently or - Threat or use of force by another state
inconsistently with it o The treaty is void
o It cannot impose any substantive obligations
- Similar principle in OBLICON – Article 1159 Can treaties derogate or overturn customary norms?
- Depends.
Can a state invoke the provisions of its internal law as justification for its failure to observe - Ergo omnes norms are non-derogable
the terms of the treaty? - If the norms are non-derogable, the treaty will become void
- No, a state cannot invoke its internal law as justification for failure to comply
- EXCEPT UNLESS, the violation of the internal law is manifest and the law is of When is a treaty void?
fundamental importance - If it is concluded thru threats or the use of force by another state
- If at the time of its conclusion, it conflicts with a peremptory norm of general
What is the scope of a treaty? international law
- The entirety of the territories of the state parties
o Unless a different intention is appears from the treaty, or is otherwise What is a peremptory norm of general international law?
established - norm accepted and recognized by the international community of States as a whole
as a norm from which no derogation is permitted and which can be modified only
Article 30, application and interpretation of treaties and previous and subsequent treaties by a subsequent norm of general international law having the same character.
How shall a treaty be interpreted? When may termination or withdrawal from a treaty take place?
- In good faith, in accordance with the ordinary meaning to be given to the terms of - In conformity with the treaty (treaty itself provides for the modes, the grounds and
the treaty in their context and in light of its object and purpose the manner) (pay attention to what the treaty itself allows)
- Or any time, with the consent of all the parties after consultation with the other
Does a treaty affect third party states? parties
- No, a treaty does not create obligations nor rights for a third State without its
consent Does a multilateral treaty terminate by the fact of the reduction of state parties required to
- EXCEPT enter the treaty into force?
o If the provisions of the treaty provide for the obligation of the third party - No, reduction of the number of parties required does not terminate the treaty
state and the third state expressly accepts the obligation in writing o unless otherwise provided.
- Obligation
o May be revoked or modified with the consent of the parties to the Is a treaty without a provision regarding termination or denunciation subject to termination
treaties and the third state, unless it is established that they have agreed or denunciation
otherwise - NO, EXCEPT:
- Rights o It is established that the parties intend to admit the possibility of such
o May not be revoked or modified if it is shown that it shall not be so withdrawal or denunciation
without the consent of the parties With AT LEAST 12 months prior notice. (a party shall not give
- Nevertheless, nothing precludes a rule from binding a state as customary rule of less than 12 month notice)
international law o A right of denunciation or withdrawal may be implied from the treaty
other states.
Montevideo Convention on the Rights and Duties of States (1933)
- notion of equality accepted in the sense of equality of legal personality and Asked in class:
capacity but it is not strictly accurate to talk in terms of equality of states in Qualifications of states:
creating law 1. Permanent population
o major states will always have an influence commensurate with their 2. Permanent and defined territory
statues, if only because their concerns are much wider, their interests 3. Government
much deeper and their power more effective 4. Capacity to enter into relations with other states
- Within GA of UN – doctrine of equality is maintained by the rule of ONE STATE,
ONE VOTE How do you recognize a state?
o But don’t forget the existence of the veto power possessed by the 1. Express (thru formal declarations etc)
USA, Russia, China, France, and UK in the Security Council 2. Tacit (thru entering into treaties/contracts with the emerging state)
3. Peaceful co-existence - But the recognition is irrevocable and unconditional
- Mutual respect for each other’s territorial integrity and sovereignty, mutual
non-aggression, non-interference in each other’s affairs and the principle of Is the Montivideo Convention considered as customary international law? (asked in class)
equality
ARTICLE 1
Protectorates and protected states The state as a person of international law should possess the following qualifications: (a) a
- Protectorate: entity concerned enters into an arrangement with a state under permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into
which, while separate legal personality may be involved, separate statehood is relations with the other states.
not
- Protected state: entity concerned retains its status as a separate state but
ARTICLE 2
enters into a valid treaty relationship with another state affording the latter
The federal state shall constitute a sole person in the eyes of international law.
certain extensive functions possibly internally and externally
o The extent of powers delegated to the protecting state may vary, as
ARTICLE 3
may the manner of the termination of the arrangement
The political existence of the state is independent of recognition by the other states. Even
o Formal sovereignty remains unaffected and the entity in question
before recognition the state has the right to defend its integrity and independence, to provide
retains its status as a state, and may act as such in the various
for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate
international for a, regard being had of course to the terms of the
upon its interests, administer its services, and to define the jurisdiction and competence of its
agreement
courts.
- BUT! The question of which type of arrangement is made and the nature of the
The exercise of these rights has no other limitation than the exercise of the rights of other
status, rights and duties in question – will depend upon the circumstances and
states according to international law.
the terms of the relevant agreement and third-party attitudes
ARTICLE 4
Federal states
States are juridically equal, enjoy the same rights, and have equal capacity in their exercise.
- union of previously autonomous entities.
The rights of each one do not depend upon the power which it possesses to assure its exercise,
- There are various forms of federation or confederation, according to the but upon the simple fact of its existence as a person under international law.
relative distribution of power between the central and local organs
- In some states, power lies with the central government, in others with the local
ARTICLE 5
or provincial bodies
The fundamental rights of states are not susceptible of being affected in any manner
- Confederation – implies a more flexible arrangement, leaving a considerable
whatsoever.
degree of authority and competence with the component units to the
ARTICLE 6
detriment of the central organ
The recognition of a state merely signifies that the state which recognizes it accepts the
- The federal state will itself, have personality, but the question of the personality
personality of the other with all the rights and duties determined by international law.
and capability of the component units of the federation on the international
Recognition is unconditional and irrevocable.
ARTICLE 7
The recognition of a state may be express or tacit. The latter results from any act which implies The present Convention shall be open for the adherence and accession of the States which are
the intention of recognizing the new state. not signatories. The corresponding instruments shall be deposited in the archives of the Pan
American Union which shall communicate them to the other High Contracting Parties.
ARTICLE 8 IN WITNESS WHEREOF, the following Plenipotentiaries have signed this Convention in Spanish,
No state has the right to intervene in the internal or external affairs of another. English, Portuguese and French and hereunto affix their respective seals in the city of
Montevideo, Republic of Uruguay, this 26th day of December, 1933.
ARTICLE 9
The jurisdiction of states within the limits of national territory applies to all the inhabitants.
Nationals and foreigners are under the same protection of the law and the national authorities Island of Palmas Case, 2 RIAA, pp. 829, 838 (1928)
and the foreigners may not claim rights other or more extensive than those of the nationals. Whether the Island of Palmas is part of the sovereignty of the US or Netherlands
Between discovery and indirect control, the arbitrator decided that the Netherlands had more
ARTICLE 10 control and had sovereignty over the island.
The primary interest of states is the conservation of peace. Differences of any nature which
arise between them should be settled by recognized pacific methods. From Yori reviewer digest:
Island of Palmas Case
ARTICLE 11 Facts:
Palmas (or Miangas), is an island having a population of about 750 and was of little
The contracting states definitely establish as the rule of their conduct the precise obligation
strategic or economic value. It lies between Mindanao and Nanusa in the Netherlands
not to recognize territorial acquisitions or special advantages which have been obtained by
Indies. It is within the boundaries of the Philippines as defined by Spain and thus ceded
force whether this consists in the employment of arms, in threatening diplomatic
representations, or in any other effective coercive measure. The territory of a state is inviolable to the US.
Later, Leonard Wood, an American General, visited Palmas and discovered
and may not be the object of military occupation nor of other measures of force imposed by that Netherlands also claimed sovereignty over the island.
The US and Netherlands
another state directly or indirectly or for any motive whatever even temporarily.
submitted the dispute to arbitration before Max Huber, a Swiss Jurist.
US claim:
ARTICLE 12 US bases their title on cession by Spain, who obtained title through discovery. they claim that
The present Convention shall not affect obligations previously entered into by the High the existence of their sovereignty over the island is confirmed by the Treaty of Munster
Contracting Parties by virtue of international agreements. and Treaty of Versailles. They also claim that, by virtue of the principle of contiguity, since
Palmas forms a geographical part of the Philippines, whoever has sovereignty over the
ARTICLE 13 Philippines has sovereignty over Palmas.
The present Convention shall be ratified by the High Contracting Parties in conformity with Netherlands claim:
Palmas formed part of the Native States of the Island of Sangi which were
their respective constitutional procedures. The Minister of Foreign Affairs of the Republic of connected with the Netherlands by contracts of suzerainty which conferred upon the
Uruguay shall transmit authentic certified copies to the governments for the aforementioned suzerain such powers as would justify considering the vassal state as part of its
purpose of ratification. The instrument of ratification shall be deposited in the archives of the territory.
Netherlands, by virtue of such suzerain power, exercised acts characteristic of
Pan American Union in Washington, which shall notify the signatory governments of said
state authority over Palmas in different period of time starting from 1700s.
deposit. Such notification shall be considered as an exchange of ratifications.
Issue:
W/N Palmas belonged to US territory or to Netherlands territory - Netherlands
ARTICLE 14 Held:
Netherlands
The present Convention will enter into force between the High Contracting Parties in the order First, sovereignty, in relation between states, signifies independence over a territory which
in which they deposit their respective ratifications. is the right to exercise therein, to the exclusion of other States, the functions of a State.
The continuous and peaceful display (peaceful in relation to other states) of territorial
ARTICLE 15 sovereignty is as good as title. Territorial sovereignty involves the exclusive right to
The present Convention shall remain in force indefinitely but may be denounced by means of display activities of a state. This right has a corollary duty:
one year's notice given to the Pan American Union, which shall transmit it to the other obligation to protect within the territory the rights of other states together with the rights
signatory governments. After the expiration of this period the Convention shall cease in its which each state may claim for its nationals in foreign territory
effects as regards the party which denounces but shall remain in effect for the remaining High Territorial sovereignty cannot be limited to simply excluding
Contracting Parties.
the activities of other states
Second, although the Treaty of Paris was communicated to the
ARTICLE 16 Netherlands who made no reservation thereto, any sovereignty that Netherlands had
over the island cannot be affected by their mere silence
Third, discovery alone by Spain,
i.e., the mere act of seeing the land without any act of taking possession thereof does A. Jurisdiction (Whether the ICJ has jurisdiction to give the advisory opinion requested by the
not give the effect of acquiring sovereignty over the land. General Assembly[GA])
Assuming arguendo that Spain obtained an inchoate title thereto, such inchoate title cannot - Power to give an advisory opinion from ICJ Statute, provides that it may give an
prevail over the continuous and peaceful display of authority by another state. advisory opinion on any legal question at the request of whatever body may be
Lastly, there is no positive law providing that islands outside territorial water should belong to authorized by or in accordance with the Charter of the UN to make such request
a state by virtue that it form the terra firma (nearest island of considerable size) - The GA is authorized to request an advisory
- The question put by the General Assembly asks whether the declaration of
Form Darvin Utopia digest (hehe hi Jas) independence to which it refers is “in accordance with international law”.
“discovery / mere inchoate right / actual & peaceful display of sovereignty” B. Discretion
The US and the Netherlands dispute over title to the Island of Palmas – the US alleging that it - The Court then notes that “[t]he fact that [it] has jurisdiction does not mean,
was ceded to it by Spain by virtue of the Treaty of Paris. The US argues that it was Spain however, that it is obliged to exercise it”
that “discovered” the Island, and also invokes the principle of contiguity – that islands - Court has a discretionary power to decline to give an advisory opinion even if the
situated outside territorial waters should be considered part of the nearest continent or conditions of jurisdiction are met.
island of considerable size. These contentions cannot be sustained. Spain can only - It notes that the advisory jurisdiction is not a form of judicial recourse for States but
transfer such rights that it had in the first place. Assuming that Spain “discovered” the the means by which the General Assembly and the Security Council, as well as other
island, discovery only confers an inchoate title w/c must be perfected by effective organs of the United Nations and bodies specifically empowered to do so by the
occupation. It cannot prevail over the peaceful and continuous display of state authority General Assembly Charter, may obtain the Court’s opinion in order to assist them in
by another state over the said Island. The principle of contiguity, on the other hand, has their activities. The Court’s opinion is given not to States but to the organ which has
no basis in IL. requested it.
Netherlands, on the other hand, has been in continuous display of authority since the 1700’s - The Court recalls that it has consistently made clear that it is for the organ which
through progressive evolution and intensification of control; and Spain never contested requests the opinion, and not for the Court, to determine whether it needs the
it. The conditions for the acquisition of sovereignty on the part of the Netherlands are opinion for the proper performance of its functions.
therefore satisfied. - Nor does the Court consider that it should refuse to respond to the General
The forms of acquisition of title are: Assembly’s request on the basis of suggestions that its opinion might lead to adverse
. occupation coupled w/ effectiveness
political consequences.
- On whether it is ok/proper for the GA to request for the advisory opinion
. conquest (allowed before)
o The Court finds that, while the request put to it concerns one aspect of a
. cession
situation which the Security Council has characterized as a threat to
international peace and security and which continues to feature on the
. accretion
agenda of the Council in that capacity, that does not mean that the General
Mere title is insufficient; there must be the element of actual display of state functions. Assembly has no legitimate interest in the question. Articles 10 and 11 of
the Charter confer upon the General Assembly a very broad power to
Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo, ICJ (22 discuss matters within the scope of the activities of the United Nations,
July 2010) International court of Justice including questions relating to international peace and security. That
Main issue: Is the unilateral declaration of independence by the Provisional Institutions of Self- power is not limited by the responsibility for the maintenance of
Government of Kosovo in accordance with international law? international peace and security which is conferred upon the Security
Council
o The fact that the situation in Kosovo is before the Security Council and the
Factual background: Council has exercised its Chapter VII powers in respect of that situation
- The Court observes that the situation in Kosovo had been the subject of action by does not preclude the General Assembly from discussing any aspect of that
the Security Council, in the exercise of its responsibility for the maintenance of situation, including the declaration of independence.
international peace and security, for more than ten years prior to the present o The Court considers that the fact that a matter falls within the primary
request for an advisory opinion. responsibility of the Security Council for situations which may affect the
- General Assembly has also adopted resolutions relating to the situation in Kosovo. maintenance of international peace and security and that the Council has
Prior to the adoption by the Security Council of resolution 1244 (1999), the General been exercising its powers in that respect does not preclude the General
Assembly adopted five resolutions on the situation of human rights in Kosovo. Assembly from discussing that situation or, within the limits set by Article
12, making recommendations with regard thereto.
- The Court recalls that the purpose of the advisory jurisdiction is to enable organs of
I. JURISDICTION AND DISCRETION the United Nations and other authorized bodies to obtain opinions from the Court
which will assist them in the future exercise of their functions. The Court cannot - x First, resolution1244(1999) establishes an international civil and security presence
determine what steps the General Assembly may wish to take after receiving the in Kosovo with full civil and political authority and sole responsibility for the
Court’s opinion or what effect that opinion may have in relation to those steps. As governance of Kosovo.
has been demonstrated, the General Assembly is entitled to discuss the declaration - x Secondly, the solution embodied in resolution 1244 (1999), namely, the
of independence and, within the limits considered above, to make recommendations implementation of an interim international territorial administration, was designed
in respect of that or other aspects of the situation in Kosovo without trespassing on for humanitarian purposes: to provide a means for the stabilization of Kosovo and
the powers of the Security Council. for the re-establishment of a basic public order in an area beset by crisis.
- The Court concludes from the foregoing that “there are no compelling reasons for it o x By placing an emphasis on these “four pillars”, namely, interim civil
to decline to exercise its jurisdiction in respect of the . . . request” before it. administration, humanitarian affairs, institution building and
reconstruction, and by assigning responsibility for these core components
II. SCOPE AND MEANING OF THE QUESTION to different international organizations and agencies,
- The GA asks for the Court’s opinion on whether or not the declaration of resolution1244(1999) was clearly intended to bring about stabilization and
independence is in accordance with international law and that the answer to that reconstruction. The interim administration in Kosovo was designed to
question turns on whether or not the applicable international law prohibited the suspend temporarily Serbia’s exercise of its authority flowing from its
declaration of independence. continuing sovereignty over the territory of Kosovo.
- x Thirdly, resolution 1244 (1999) clearly establishes an interim régime; it cannot be
III. FACTUAL BACKGROUND understood as putting in place a permanent institutional framework in the territory
- The court indicated that the declaration of independence of [Kosovo adopted on] 17 of Kosovo.
February 2008 must be considered within the factual context which led to its - x The Court thus concludes that the object and purpose of resolution 1244 (1999)
adoption”. It briefly describes the relevant characteristics of the framework put in was to establish a temporary, exceptional legal régime which, save to the extent that
place by the Security Council to ensure the interim administration of Kosovo, namely, it expressly preserved it, superseded the Serbian legal order and which aimed at the
Security Council resolution 1244 (1999) and the regulations promulgated thereunder stabilization of Kosovo. The Court notes that it was designed to do so on an interim
by the United Nations Mission in Kosovo (UNMIK). basis.
IV. THE QUESTION: WHETHER THE DECLARATION IS IN ACCORDANCE WITH INTERNATIONAL V. GENERAL CONCLUSION
LAW The Court recalls its conclusions reached earlier, namely, “that the adoption of the declaration
A. General International Law of independence of 17 February 2008 did not violate general international law, Security Council
- State practice during this period points clearly to the conclusion that international resolution 1244 (1999) or the Constitutional Framework”. Finally, it concludes that
law contained no prohibition of declarations of independence “[c]onsequently the adoption of that declaration did not violate any applicable rule of
- The ICJ observes that while the Security Council previously has condemned particular international law.”
declarations of independence, those were connected with violations of jus cogens
law. But in the context of Kosovo, the Security Council has never taken this position. Province of North Cotabato v. GRP Peace Panel, G.R. No. 183591, October 14, 2008
- No general prohibition against unilateral declarations of independence may be
inferred from the practice of the Security Council. G.R. No. 183591 October 14 2008
- Accordingly, it concludes that the declaration of independence of 17 February 2008 Province of North Cotabato vs Government of the Republic of the Philippines
did not violate general international law.
B. Security Council resolution 1244 (1999) and the UNMIK Constitutional Framework created FACTS:
thereunder On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic
- Security Council resolution 1244 (1999) and the Constitutional Framework form part Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement of the
of the international law which is to be considered in replying to the question posed Ancestral Domain Aspect of the GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala
by the General Assembly in its request for the advisory opinion. Lumpur, Malaysia.
1. Interpretation of Security Council resolution 1244 (1999) Invoking the right to information on matters of public concern, the petitioners seek to compel
- Security Council resolutions are issued by a single, collective body and are drafted respondents to disclose and furnish them the complete and official copies of the MA-AD
through a very different process than that used for the conclusion of a treaty; they and to prohibit the slated signing of the MOA-AD and the holding of public consultation
are the product of a voting process as provided for in Article 27 of the Charter, and thereon. They also pray that the MOA-AD be declared unconstitutional. The Court issued
the final text of such resolutions represents the view of the Security Council as a a TRO enjoining the GRP from signing the same.
body. Moreover, Security Council resolutions can be binding on all Member States
ISSUES:
3Whether or not the signing of the MOA, the Government of the Republic of the Philippines
would be binding itself The MOA-AD provides that “any provisions of the MOA-AD requiring amendments to the
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a existing legal framework shall come into force upon the signing of a Comprehensive
juridical, territorial or political subdivision not recognized by law; Compact and upon effecting the necessary changes to the legal framework,” implying an
b) to revise or amend the Constitution and existing laws to conform to the MOA; amendment of the Constitution to accommodate the MOA-AD. This stipulation, in
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral effect, guaranteed to the MILF the amendment of the Constitution .
domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF
1997), particularly Section 3(g) & Chapter VII (DELINEATION, It will be observed that the President has authority, as stated in her oath of office, only to
RECOGNITION OF ANCESTRAL DOMAINS) preserve and defend the Constitution. Such presidential power does not, however, extend
to allowing her to change the Constitution, but simply to recommend proposed
RULINGS: amendments or revision. As long as she limits herself to recommending these changes
3. and submits to the proper procedure for constitutional amendments and revision, her
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a mere recommendation need not be construed as an unconstitutional act.
juridical, territorial or political subdivision not recognized by law;
The “suspensive clause” in the MOA-AD viewed in light of the above-discussed standards.
Yes. The provisions of the MOA indicate, among other things, that the Parties aimed to vest
in the BJE the status of an associated state or, at any rate, a status closely approximating Given the limited nature of the President’s authority to propose constitutional amendments,
it. she cannot guarantee to any third party that the required amendments will eventually
The concept of association is not recognized under the present Constitution. be put in place, nor even be submitted to a plebiscite. The most she could do is submit
these proposals as recommendations either to Congress or the people, in whom
No province, city, or municipality, not even the ARMM, is recognized under our laws as having constituent powers are vested.
an “associative” relationship with the national government. Indeed, the concept implies
powers that go beyond anything ever granted by the Constitution to any local or regional
government. It also implies the recognition of the associated entity as a state. The CONCLUSION:
Constitution, however, does not contemplate any state in this jurisdiction other than the In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion
Philippine State, much less does it provide for a transitory status that aims to prepare any when he failed to carry out the pertinent consultation process, as mandated by E.O. No.
part of Philippine territory for independence. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess of the legal authority,
The BJE is a far more powerful entity than the autonomous region recognized in the and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise
Constitution. It is not merely an expanded version of the ARMM, the status of its thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the
relationship with the national government being fundamentally different from that of the duty enjoined.
ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down
in the Montevideo Convention, namely, a permanent population, a defined territory, a The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
government, and a capacity to enter into relations with other states. provisions but the very concept underlying them, namely, the associative relationship
envisioned between the GRP and the BJE, are unconstitutional, for the concept
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of presupposes that the associated entity is a state and implies that the same is on its way
Philippine territory, the spirit animating it – which has betrayed itself by its use of to independence.
the concept of association – runs counter to the national sovereignty and territorial
integrity of the Republic. ADDITIONAL NOTES FROM YORI REVIEWER:
MOA-AD between GRP and MILF is not a treaty
While there were States and international
The defining concept underlying the relationship between the national government and the
organizations involved, in the negotiation and projected signing of the MOA-AD, they
BJE being itself contrary to the present Constitution, it is not surprising that many of the
participated merely as witnesses or, in the case of Malaysia, as facilitator. Mere fact that
specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict
the peace settlement is signed by representatives of states and international
with the Constitution and the laws. The BJE is more of a state than an autonomous region.
organisations does not mean that the agreement is internationalized so as to create
But even assuming that it is covered by the term “autonomous region” in the
constitutional provision just quoted, the MOA-AD would still be in conflict with it. obligations in international law.
Since the commitments in the MOA-AD were not
addressed to States, not to give legal effect to such commitments would not be
detrimental to the security of international intercourse - to the trust and confidence
b) to revise or amend the Constitution and existing laws to conform to the MOA:
essential in the relations among States.
BUT while the MOA-AD would not amount to Subjects of international law are entities endowed with rights and obligations in the
international order and possessing the capacity to take certain kinds of action on the
an international agreement, respondents’ act of guaranteeing amendments is, by itself,
already a constitutional violation that renders the MOA-AD fatally defective. international plane. They are those who have international personality.
Objects of
international law are those who indirectly have rights under or are beneficiaries of
international law through subjects of international law.
The subjects of law are not
Class discussion:
necessarily identical in their nature or in the extent of their rights, and their nature depends
What about nomadic people? (i.e. an island which is inhabited only half the year, can this island
upon the needs of the community.
constitute itself as a state?)
States: Commencement of their existence
Defined and permanent territory: Can you make a state out of manmade(plastic) structures?
Under the Montevideo Convention of 1933, a state as a person of international law should
Must it be natural? What form of territory is needed to satisfy this category?
possess:
o Technically yes you can create your own territory but if creating the
territory will violate international law, this will not satisfy the requirement. 1. a permanent population
2. defined territory
3. government
4. capacity to enter into
What about island nations that are about to be submerged due to rising waters, that will lose relations with other States
their territory imminently? Characteristics of Statehood
- Still an emerging topic, no definite answer yet, but is a problem area Article 1 of the Convention on Rights and Duties of States (1933 Montevideo) provides for
What about the requirement of government and capacity to enter into relations with other the qualifications of a State:
states? . permanent population - community of persons sufficient in number and capable of
What is it important to discuss about states, what they are and what are not states? maintaining the permanent existence of the community and held together by a
- Because the basic person in IL is the state; IL is created by States common bond of law
- Rights and obligations adhere to the state . defined territory - even if boundaries of the state have not yet been settled, if one
- The creation of customs is very state centric or more of its boundaries are disputed, or if some its territories are claimed by
- Violation of international norms is dependent on this factor
another state, the entity does not cease to be a state
- *North C/Sentinal Island – has a primitive community never had contact with the
outside world ever . government - that institution or aggregate of institutions by which an independent
o insofar as India is concerned, it has international jurisdiction over the society makes and carries out those rules of action which are necessary to enable
island but it does not control or administer or enforce its laws in the island men to live in a social state, or which are imposed upon the people forming that
Two theories on the recognition of statehood society by those who possess power or authority of prescribing them
1. declaratory theory . capacity to enter into relations with other states - means sovereignty which is
a. recognition of a new State is a political act, which is, in principle, dependent on recognition.
independent of the existence of the new State
as a subject of . Self-determination — the right to freely determine their political status and freely
international law. pursue their economic, social and cultural development.
Self-determination has 2
b. statehood is a legal status independent of recognition
c. Europe etc adhere to this theory levels:
2. constitutive theory 1. Establishment of new states
claim by a group within an established state to break away
a. theory that the rights and duties pertaining
to statehood derive from and form a new entity
recognition by other States
b. recognition by other states bestows the state with statehood 2. Does not establish a new state
claims to be free from external coercion, claim to
c. US adheres to this theory overthrow effective rulers and establish a new government (assertion of the right of
It’s the CAPACITY only to enter, not actually relations with other states – so does this mean revolution), or claim of people within an entity to be give autonomy.
you have to be recognized by other states? – to enter into relations yes, BUT
- You can still be a state in isolation, therefore, no longer requiring recognition Recognition of states
- SO WHAT THEORY IS THE MORE SOUND THEORY, CONSTITUTIVE OR DECLARATORY? - when State A recognises State B, it means that both recognize the capacity of each
(MT QUESTION) other to exercise all the rights belonging to statehood. It is an acknowledgment of
the capacity of an entity to exercise rights belonging to statehood.
ADDITIONAL STATEHOOD NOTES FROM YORI REVIEWER Can an entity claim to be a state before it is recognized by other states? 2 theories:
Subjects of international law
1. Declaratory theory
recognition is merely declaratory of the existence of the
state and that its being a state depends upon its possession of the required elements and not
upon recognition
2. Constitutive theory
recognition constitutes a state. it is what makes a state a
state and confers legal personality on the entity. This recognizes that States may decide to
recognize an entity as a state even if it does not have all the elements of state as defined
under the Montevideo Convention
Recognition of governments
- It means that the act of acknowledging the capacity of an entity to exercise powers
of government of a state.
- If a change in government is brought about through ordinary constitutional
procedure, recognition by others comes as a matter of course.
- The problem is acute when a new government within a state comes into existence
through extra-constitutional means.
-
Consequences of Recognition or Non-recognition
- A government, once recognized, gains increased prestige and stability. The doors of
funding agencies are opened, loans are facilitated, access to foreign court and
immunity from suit are gained.
- Non-recognition bars an entity from all these benefits. Recognition is terminated
when another regime is recognized.