Public International Law PDF

Chapter 1
PRELIMINARY
CONSIDERATIONS
DEFINITION OF INTERNATIONAL LAW

As used in'this treatise, the phrase "International Law" stands
only for "Public International Law," as distinguished from "Private
1
International Law."
. Public International Law (or tlje Law of Nations) may be
defined as the rules, based on the natural moral law and on coinmon
consent, which govern the relations of sovereign States and otHer
For that matter, the international legal system may be said

to consist of:
(1) natural moral law principles (premised on the doing of
what is good, and the avoidance of what is evil)
(2) a set of generally agreed-upon norms of conduct (whether
agreed upon by States expressly, as in a treaty, or implicitly, as in
the case of customs);
(3) and certain authoritative processes for enacting and
changing these aforementioned norms (e.g., the rule-making
3
processes of the United Nations Organization).
'"Private International Law" (or "Conflict of Laws") is that part or the

municipal law of a State, which directs its courts and administrative agencies,
when confronted with a legal problem involving a foreign element, whether or not
foreign law or foreign laws will be applied." (See E.L Paras, Philippines Conflict
of Laws, p. 2).
'See H.B- Jacobini, International Law (1962) p. 1; Oppenheim-Lauterpacht.
International Law, (1955), p. 4.
*3aul Mendlovitz, "Unrealistic Compliance Goals,* Proceedings of the Ameri-
can Society of International Law," Washington, D.C., April 23-25. 1964, p. 9.
2 INTERNATIONAL LAW A N D WORLD POLITICS
CHINESE AND RUSSIAN DEFINITIONS OF

INTERNATIONAL LAW
"International law is the aggregate of various principles, norms
and institutions adjusting the relations of B t r u g g l e and coopera-
tion among States, reflecting the adjusted will of the ruling class
of various States and enacted thru the agreements among StateB
and to be maintained by the individual or collective [effort] of
States."(Liu Fengming, Essentials of Modern International Law,
1982, p. 4).
This definition is very similar to that of the Soviet writers of
the 1960s. See, e.g., the following definition of international law in
a 1964 Soviet textbook:
T h e aggregate of norms which are established by the
agreement of States, including those with different social
-
orders, express the wills of these States; regulate their strug-
gle and collaboration on the basis, and in the interest, of the
effective maintenance of peace and peaceful coexistence; and
enforced when necessary, by collection or individual State
action." (Mezhdunarodnoe Pravo, International Law [1964]).
OTHER DEFINITIONS OF THE SUBJECT

(1) W I L S O N — Public International Law is the body of
generally accepted principles governing relations among States.*
(2) LAWRENCE — Public International Law may be defined
as the rules which determine the conduct of the general body of
1
civilized States in their mutual dealings.
(3) HACKWORTH — International Law consists of a body
of rules, evolving for the m o s t part out of experience and necessity,
8
which governs the relations between States.
(4) McDOUGAL — International Law is not a pre-existing
body of rules, but a comprehensive process of authoritative deci-
7
sion in which rules are continuously made and remade.
'Wilson, Handbook of International Law, p. I .

'Hachworth, Digest of International Law, Vol. 1 (1940), p. 1.
*Hackworth, Digest of International Law, Vol. 1 (1940), p. 1.
'McDougal and Associates, Studies in World Public Order (1960), p. 1.
PRELIMINARY CONSIDERATIONS { 3
(5) A B B A E B A N — International law is the law which the

wicked do not obey and which the righteous do not enforce.
COMMENT ON THE USE OF THE PHRASE

"INTERNATIONAL LAW"
It would seem from the phrase "international law" that na-
tions (not States) are involved; this is misleading for the subject
really deals with States.
Upon the other hand, the phrase "Law of Nations" is even
more deceptive, for one would think that internal or municipal
8
jurisprudence (not international affairs) is dealt with.
IMPORTANCE OF THE SUBJECT

With the advent of travel in outer space, the world has all of
a sudden emerged smaller, more compact, and pleasingly unified
(at least in scientific rivalry). How to preserve thi6 singular unity,
in the midst of nuclear advances albeit waning ideological conflicts,
is the all-important problem of our generation.
Thus, in one of the classic speeches of the great American
President, John Fitzgerald Kennedy, he stated quite truthfully
that before the world makes plans for a better future, it must first
make sure that there will be a future. To assure the existence of
that future in a universe of exploding megaton bombs, star wars,
and nuclear missiles is to our mind the primary purpose of Public
International Law. Legal anarchy inevitably ends in disaster; j e a c e
9
can come .only with the rule of law.
• ^ g n o f i c a U j , thfe Auctions of Public International L A W may
(I) the maintenance of international peace and order: a rule

10
of basic discipline among States in a war-weary world;
"The phrase "International Law" was first used by Jeremy Bentham in his
work Introduction to the Principles of Morals and Legislation (1870).
T h e "Rule or Law" was eipreosly recognised in the Declaration of Delhi
(January 10. 1969) of the International Congress of Jurist*. Journal of the In-
ternational Commission of Juruta, Vol. II, No. 1, Spring-Summer (1959).
'"See Preamble, UN Charter, 1st clause.
4 INTERNATIONAL LAW AND WORLD POLITICS
(2) the p r ^ f f * ' ™ of--State Hghtw and of fundamental hu-

11
man rights" — thru sanctions, both peaceful and coercive;
(3) the economic, social, cultural, and technological develop-
ment of States and such other entities as may be possessed of an
11
international personality. *
There are at least three (3) important schools of thought as

to the basis or foundation of Public International Law.
jtlf" The Natural Law School
This theory postulates the natural moral law as the basis of
Public International Law. The natural moral law is said to be the
voice of conscience, a rule of human conduct implanted by God in
the very nature of man. Thru this law, a man is supposed to do
whatever is right and to avoid whatever is evil. Thus, Pufendorf
has expressed the opinion that laws not in conformity with the
13
moral nature of man cannot be binding on sovereign States. On
his part, Austin, in his "Province of Jurisprudence Determined,"
pp. 147-148, posits that "international law is founded on the
opinions generally received among civilized nations, and its duties
are enforced only by moral sanctions,_by_£ear-on-the part of na-
tions, or by fear on the part of sovereigns, of provoking general
hostility and incurring its probable evils, in case they should violate
maxims generally received and respected."
$2$ The Positivist School

Advocates of the PositiviBt School insist that the only basis of
"See Lhe Universal Declaration of Human Rights (1948) which says in part
that "it is essential, if man is not to be compelled to have recourse, to rebellion
against tyranny and oppression that human rights should be protected by the rule
of law."
'^Hans Kelsen says that international law is a coercive order giving so-
cially recognized sanctions against international wrongs. (Kelsen, Principles of
International Law, pp. 401; 203-209).
1
President Kennedy once proposed the creation of a new world of law,
with competition in the scientific and economic fields instead of on the battle-
fields. (Inaugural Address, 1961).
"Samuel von Pufendorf. pie Classic of International Law, Vol. I, p. 266.
Jacobini suggest* that the,tenn "naturalism" refers to principles of justice
which may be ascertained by the use of REASON. ( H.B. Jacobini, International
Law, p. 22 ).
PHKLTMTNAKY CONSIDERATIONS 6
Public International Law is the common consent of Stat**. ThiB

common consent, according to the Italian Gentili, can be found in
14 16
acquiescence to customs. Savigny" and Kelsen, upon the other
hand, emphasize international legal customs. The latter belong to
what is termed the Historical School, a variant of the Positivists.
The Eclectic School (the Grotian School)
This third viewpoint, the Eclectic School, maintains that Public
International Law ie premised both on the natural moral l a w , and
17
on common consent (or rules of positive origin). The legal schol-
ars belonging to this school a r e _ s o m e t i m e B referred to as the
Grotians (derived from'sHugo Grotius^the "father of International
18
Law"). -"'
THE CORRECT THEORY

In common with most writers on the subject, we are inclined
19
to side with the Eclectic School. A State, after all, consists of
rational human beings; it must, therefore, be guided by rules of
moral conduct, e.g., the right of a State to defend itself exists,
independently of any treaty or custom. This right is implicit in the
natural moral law. Upon the other hand, it Bhould also be admit*
ted that a State is bound by its treaty commitments and by inter-
national legal customs. Thus also, in the absence of m u t u a l con-
sent, recognition by States of one another, and full diplomatic
intercourse among them, will n o t exist.
IS INTERNATIONAL LAW TRUE LAW?

To answer the question — is Public International Law true
law — it is needful for us to first define what is meant by l a w .
In its mostgfineraI_ sense/ law may b e l a i d to be "the_ in-
structions from God;" in a more specific sense, l a w j s a reasonable
"Alberico Gentili, Classics of International Law, p. 1.

l&
Friedrick K. von Savigny, Of the Vocation of Our Age for Legislation and
Jurisprudence, p. 7.
"Kelsen, op. cit., pp. 403-447.
"In case of a real conflict (this would, of course, be rare), the natural moral
law should prevail over the rules of positive origin.
"H.B. Jacobini, op. cit., p. 23.
"Note the definition of the subject which has been adopted by the authors.
e INTERNATIONAL LAW A N D WORLD POLITICS
rule of action promulgated by competent authority for the common

good.
What is meant by "competent authority is a ^superior State
whose commands have to be performed by so-called sovereign States;
in other words, if taw is to be construed as a superior will imposed
on inferior beingB, Public International Law, in our opinion, is law
only insofar as it is premised on the natural moral law, and is not law
10
insofar as its basis is the common consent of equal States.
If, however, "competent authority" refers to equal States,
which observe expressly (thru conventions) or implicitly (thru
customs) common standards of conduct in their mutual relations,
then we dare say that Public International Law is true law. This
conclusion is evident from the following facts:
(1) Firstly, international law is "discussed by the methods
appropriate to jurisprudence, and not by those of moral philosophy."
(2> Secondly, State officials, in arguing for their foreign
policies, appeal "not to the general feeling of moral rightness, but
31
to precedents, to treaties, and to the opinions of specialists."
(8) Thirdly, international law has judicial sanctions en-
forced both by international and municipal tribunals (Thus, in the
Nuremberg Judgment of 1946, German war criminals who had
21
defied international law, were severely punished.)
(4) Fourthly, at various times in history, international leg-
islation has been enacted (such legislation has been made, for
example, by the United Nations Organization, the International
Court of Justice, the Hague Conferences of 1899 and 1907, the
International Military Tribunal in Nuremberg).
This Military Tribunal, in defending the jurisdiction granted
to it by the Agreement and Charter of the Tribunal, said:
^Thus, it ia understandable why Austin who considers law to be a superior

will imposed on inferior beingB does not regard Conventional and Customary
Public International Law as true law. To him, ' .e so-called law of nations con-
V \J sists of opinions or sentiments current among nations Kencrally. It, therefore, is
not law properly so-called. (AuBtin, The Province of Jurisprudence Determined
11835], Lecture V ) .
"Pollock, Oxford Lecturers (1890), p. 18.
m
S e e the Nuremberg Judgment (1946), 41 American Journal of Interna-
tional Law (1947) p. 172.
P R E L I M I N A R Y CONSIDERATIONS 7
T h e making of the Charter waa the exercise of the

sovereign legislative power by the countries to which the
German Reich unconditionally surrendered, and the un-
doubted right of these countries to legislate for the occupied
territories has been recognized by the civilized world. The
Charter is not an arbitrary exercise of power on the part of
the victorious nations, but the expression of international
law existing at the time of its creation, and to that extent is
23
itself a contribution to international law."
TRANSNATIONAL LAW
As that body of municipal and international norms governing
public and private transactions that transcend national bounda-
ries or national jurisdiction, transnational law is an emerging body
of law based upon Ûniversally accepted general"p>Tncrples~of law
supplementedJ?y that portion of the municipal law of disputants
applicable in an attempt to rei aspb/e conflict. Proponents
nts of
transnational law, a term coined b] >y(Philip C. Jessup^n the 135
1950a, .
suggest that there are major gaps in traditional international law
and these needs can best be bridged at levels other than universal.
Such gaps are particularly evident in such areas as contracts and
concessions between governments and foreign nationals. (Bledsoe
& Boczek, The International Law Dictionary, 1987 ed., p. 32).
JUS CIVILE'
As the civil law of ancient Rome that applied to Roman
citizens^7uJ civile* formed part of the foundation for later national
legal systems of Europe and other parts of the world. It also con-
tributed many concepts and principles now embodied in interna-
tional law, governing, for example, acquisition of title to territory,
State liability for actions deleterious to other states, and freedom
of the high seas. (Bledsoe & Boczek, The International Law Dic-
tionary, 1987 ed., p. 15).
This is a peremptory norm of general international law from

wJiiclL States cannot escape. TTowever, for a norm to be considered
jus cogens, it must be accepted and recognized_bxthe international
a
lbid.
I N T E R N A T I O N A L L A W A N D WORLD POLITICS
community of States as a whole. The most eiplicit expression of

juscogens in the contemporary period is Article 53 of the 1969
Vienna Convention on the Law of Treaties, where it \B stated that
"[a] treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law." By this is meant
that a treaty cannot modify or evade a norm of jus cogens unless
it is done by the international community as a whole. THe rules
against aggression and genocide are the two peremptory rules of
international law enjoying general acceptance. (Bledsoe & Boczek,
The International Law Dictionary, 1987 ed., pp. 15-16).
'JUS GENTIUM'
This so-called "law of tribes" .refers. tp_ that body of Roman
(civil) law that applied to all non-Romans in the Empire as well as
dealings between Romans and non-Roman6. Since it governed the
relations with and among disparate non-Roman peoples, jus gen-
Hum has provided international law with many concepts that
border on private law, such as contracts, treaties, and property
rights and, in the classical legal literature on "the law of nations,"
acquired the meaning of present-day public international law.
(Bledsoe & Boczek, The International Law Dictionary, 1987 ed.,
p. 16)
'JUS NATURALE'
As the law of reason, jus naturale (believed to be of divine
origin), with its emphasis upon order and reason, was influential
in the early development of international law thru theorists such
as Francisco de Vitoria, FrancisoJSuarez, Alberico Gentili, and
Hugo Grotius. In their view, <natural law is based upon universal
or immutable laws to which alFlFe bound simply by the fact that
it is the natural order of things. While eventually displaced by
positivist concepts of treaties and customs in the 18th and 19th
centuries, natural law has left its imprint upon international law
with such concepts as justice, morality, rationality, and equality
under the law. (Bledsoe & Boczek, The International Law Dic-
tionary, 1987 ed., pp. 16-17).
LEX POSTERIOR DEROGAT PRIORI' ^

As the legal maxim that the subsequent law abrogates the
preceding law, lex posterior derogat priori (orîmpTy(fef 'posterior')
PRELIMINARY CONSIDERATIONS
suggests that if a law explicitly contravenes a prior treaty, or a

treaty contravenes prior law, or a treaty contravenes a prior treaty,
the courts will apply the moat recent ejpr»»mttn pf thu lnw (Bledsoe
& Boczek, The International Law Dictionary, 1987 ed., p. 17).
DOES THE UNITED NATIONS ORGANIZATION REALLY HAVE

THE POWER TO ENACT INTERNATIONAL LEGISLATION?
As has already been intimated, the United Nations Organi-
zation has at various times enacted international legislation (e.g.,
The Resolution on the Granting of Independence to Colonial
2
Countries and People). *
The question, however, arises: is the Organization really
25
empowered to do this? Professor SkubiszewBki answers this
categorically:
"We know both from the reading of the UN Charter and the
history of its drafting (the defeat of the Philippine proposal on this
20
right presented at the Conference in San Francisco) that / o power
to make law for States has been conferred on the General Assem-
bly or any other organ of the United Nations. For such power,
whether comprising legislation by virtue of a unanimous vote, or
by majority decision with the guarantees of the system of con-
tracting-out, or by majority decision binding for all, must always
be based on an E X P L I C I T A N D U N E Q U I V O C A L T R E A T Y A U -
27
THORIZATION."
This lack of full-fledged legislative powers on the part of the

General Assembly may perhaps be attributedJ,o_two (2) factors:
(1) Firstly, States are still somewhat reluctant to bestow
regulative competence on international organizations;
^Paragraphs 3 and 4, and part of paragraph 5 of said Resolution (No. 1514

(XV)) virtually formulate new provisions of international law. Moreover, the
Resolution unequivocally provides that all countries must "observe faithfully and
strictly . . . the present Declaration." It is to be regretted, however, that the UN
was unable to impose its will on recalcitrant members. f Kizysztof Skubiszewski,
The General Assembly of the United Nations and Its Power to Influence National
Action, A.J.I.L., April 23-25, 1964. pp. 153-154).
B
Docent, University of Pozman, Poland, and Visiting Scholar, Columbia
University.
" 9 UN CIO Does. 79 (1945).
"Skubiszewski, op. cit., p. 153.
10 I N T E R N A T I O N A L L A W A N D W O R L D POLITICS
(2) Secondly, to achieve its avowed objectives, the UN is

more in need, not of legislative powerB, but of executive prerogatives
— particularly rights which would enable the Organization to ini-
tiate and maintain peace-restoring and peacekeeping operations."
Be this as it may, the fact is that the General Assembly
would be able to legislate on international norms only if the
2
member-States will give fall backing and compliance thereto. *
Let it be noted, however, that in matters of internal proce-
dure (such as the structure and functioning of the U N ) , addressed
not to the member-States, but to UN organs and employees, the
General Assembly has undisputed competence. This is so because
30
the Assembly has been expressly conferred this right, and be-
cause, even without such express authorization, the right may be
31
considered implied. In many instances, this right to make internal
regulations, has influenced the policies of various States.
It should be noted, nonetheless, that according to the Advi-

sory Opinion of the International Court of Justice on the so-called
"Assessments Case," the General Assembly has the power to levy
assessment or contributions from the Members, not only for the
ordinary operational expenses in the "budget" (Art. 17, par. 2, UN
Charter), but also for the "peacekeeping" activities of the Assem-
bly as exemplified by the creation and maintenance of UN military
forces to put an end to the Suez and Congo crises. (Carlos P.
Romulo, "The United Nations Today," Philippine International Law
Journal, Oct.-Dec. 1962, p. 528).
CLASSIFICATION OF PUBLIC INTERNATIONAL LAW

Classified according to the manner in which the common
consent of StateB has been given (binding effect), Public Interna-
tibnai Law consists of:
™Ibid., p. 154.
T h e present day success of the General Assembly can be attributed more
to the "traditional techniques of conference diplomacy within the United Na-
tions." (Ibid., p. 163).
"Arts. 21, 22, 62, and 101, UN Charter.
''Advisory Opinion or the International Court of Justice on "Certain Ex-
penses or the U N , " and "Effects of Awards of Compensation Hade by the UN
Administrative Tribunal," (I.C.J. Rep. [1962). pp. 161, 168 (1954)).
(y{ Conventional International Law — if the con Bent has

31
been given E X P R E S S L Y (as in the case of multipartite covenants
and treaties)
(2) Customary International Law — if the consent has been
I M P L I C I T L Y or T A C I T L Y given (as by continuous acquiescence to
international customs)
(3J General International Law — if P R E S U M A B L Y consent
has been given to the fundamental natural principles governing
33
international,, intercourse. „
According to applicabjMy of subject matter, traditionalists led
by Grotius classify the Bubject into:
( i f the International Law of Peace;
(JVf the International Law of War;
the International Law of Neutrality.
According to content- o{L_subje£L matter, we have:
t l f International Constitutional Law (this is essentially
political in character, and may be beat exemplified by the UN
Charter, and the Treaty of Versailles which ended World War I ) ;
International Administrative Law [this is fundamentally
34
technical in scope, and may include ordinary treaties, customs,
and court decisions on: (y
(a) International Corporation Law;
(b) International Criminal Law;
(c) International Torts and Damages;
(d) International Commercial Law (including trade
agreements, and foreign investment legislations);
^Several States are involved.

"Conventional and Customary International Law together constitute PAR-
T I C U L A R or E X P L I C I T International Law (particular because only specific
agreements and specific customs are embraced within the law), as distinguished
from G E N E R A L or I M P L I C I T International Law (which consists of general
principles of l a w ) . Viewed from another angle, P A R T I C U L A R International Law
may refer to that followed by a particular country, while G E N E R A L Interna-
tional Law refers to that recognized by the family of nations, or the world at
large.
" S e e H.B. Jacobini, op. cit., pp. 29-30.
12 I N T E R N A T I O N A L L A W A N D WORLD POLITICS
(e) International Financial Law

(f) International Maritime Law.].
HOW PUBLIC INTERNATIONAL LAW CAN BE OBSERVED

States can, in general, guarantee the observance of Public
International Law by a firm adherence, to the principles of the
natural moral law (e.g., good faith) ana JO the spirit and intent of
treaty stipulations and International customs. In particular, this
guaranty can be made thru peaceful means means (e.g., diplomatic
negotiation, and arbitration); thrn-forabie^measurea short of war
(e.g., the breaking off of diplomatic relations, boycott, non-in-
tercourse); and finally thru collective enforcement measures (e.g.,
34
UN intervention in Korea, in the Suez Canat7'C6hgo Crises, Iraq-
Kuwait and the U.S.-led Allied Forces, Bosnia, Somalia, Cambo-
dia, Haiti, etc.)
Private individuals, upon the other hand, can do their share

by prompt and willing compliance with legislative, executive, and
judicial acts specifically affecting their persons, and their property
rights.
WHY PUBLIC INTERNATIONAL LAW IS OBSERVED

^ (1) States observe Public International J-aw because of their:
i (a) belief in the reasonableness of the Law of Nations;
y
V (b) fear of being unconventional;
^ (c) fear of reprisal from other States.
Lawrence says: "As a general rule, in their dealings with one
another, States as a matter of policy and at their own instance,
observe the rules of Public International Law:
(a) Partly because of the conscientious conviction that

they are good and right;
(b) Partly because of those subtle influences which

make it difficult for a man or a body of men to act in defiance
of the strongly held viewB of those with whom they habitually
associate;
s
See I Oppenheim, International Law, p. 6.
(c) Partly because of fear but a disregard of them would
in the long run bring evil to them. In certain cases, a State
is compelled to observe these rules thru the use of actual
force or thru threat of the use thereof by other States bent on
36
securing strict observance of said rules."
(2) Private individuals observe Public International Law
because they are afraid of legislative, executive, and judicial sanc-
tions within their respective countries and because they realize, as
rational beings, that after all, moBt of the ruleB of the Law of
Nations, founded as they are both on the natural moral law and
on common consent ( o n the part of the States), are for their o w n
good. As a matter of fact, the collective opinion of the private
individuals of the entire civilized world today plays "in an ever
increasing degree the part of sanctioning authority. With the growth
of international intercourse and international interdependence the
danger of isolation or of discredit or even of 'boycotting' becomes
a matter of increasing importance in the conduct of States. The
national press and periodical literature, with exceptions no doubt,
are among the chief factors in the development of this public opin-
ion, but it is by n o meanB dependent upon them. Personal inter-
course among citizens of the same country, and between states-
m e n , politicians, and citizens of different countries has a still greater
effect in the creation of the mental attitude of nations toward each
other.""
PUBLIC INTERNATIONAL LAW DISTINGUISHED FROM

MUNICIPAL LAW
^Public International Law'
>T) principal sanctions are:
(a) reprisal
(b) war
collective responsibility for failures and omissions
relatively decentralized
comparatively hgjxlzr to enforce (it being imposed by the
coll* ive will of equals, i.e., sovereign States)
M
Lawrence, Principle* of Intarnational Law, p. 8.
"See Encyclopedia Britannia, Vol. 12, p. 623
Municipal Law
(1) principal sanctions are:
(a) civil execution (in civil law)
(b) criminal punishment (in criminal law)
(2) individual responsibility generally prevails
(3) relatively a centralized coercive order (in the sense that
one central authority — the domestic government alone — generally
38
legislates for everybody within the State).
(4) comparatively easier to enforce, because the people who
are the subjects of the law invariably recognize the "superiority"
39
of the government.
The American Bar Association Special Committee on World
Peace Through Law has made the following remarkable observa-
tions:
T h e rule of law among nations meanB the reliance upon
law as opposed to arbitrary power in international relations.
The fact that the rule of law among nations has not been
effectively established on the basis laid in the UN Charter,
and that the institutions and procedures provided under the
terms of the Charter have not been fully utilized, appears to
be due to a large part to the practical construction that has
been given to the principle, also set forth in the Charter, of
the sovereign equality of all members of the United Nations.
The word 'sovereign' has been construed in practice as the
equivalent of 'above the law.'
T h e word 'sovereign' which means 'supreme' has in fact

NO PROPER P L A C E in the context of international relations.
The concept of sovereignty is applicable only within nations.
No State is sovereign outside its own borders, and even w i t h i n
those borders the supreme authority of the State is subject to
constitutional and other limitations. It is of the essence of the
rule of law among nations that no person is above the law.
International law, including that which is derived from cus-
tom and that which is set forth in treaties, is, in fact, the sum
" S e e Haas Kelsen, op. cit., pp. 401-403.

" S e e the Rule or Law Among Nations, Background Information, April, I960
pp. 4-5.
P R E L I M I N A R Y CONSIDERATIONS IS
of the binding commitments of States with respect to the

conduct toward one another.
T h e rule of law in a national community is backed by
readily available force as well as by the sentiment of t h e
good people' of the community. The rule of law in the in-
ternational community is not backed by readily available force.
The sanction of the use of force by aggrieved nations formerly
regarded as in the interest of the international community as
a whole, was deliberately relinquished in the Charter except
as to individual or collective self-defense against armed attack.
The provisions of the Charter under which sanctions might
have been applied by the Security Council have been frus-
trated, and the alternative procedure authorized in the Uniting
for Peace Resolution of 1950 is difficult to set in motion.
"In these circumstances the rule of law among nations,

for which the bases were laid in the Charter, would appear
to be without effective sanctions except for one central fact
the significance of which has not been fully realized. That
fact is the imminent possibility of the destruction of the
greater part of the population and the resources of the entire
world by nuclear weapons, ballistic missiles or by another
means as a result of the unwillingness of States to submit to
the rule of law in their international relations. Full realiza-
tion of the significance of the fact may lead, before it is too
late, to the submission of all States to the rule of law among
0
nations."*
RELATION BETWEEN PUBLIC INTERNATIONAL LAW

AND MUNICIPAL LAW (IN GENERAL)
Public International Law, although international in charac-
ter, is, in a sense, part and parcel of the municipal law of a State,
inasmuch as the State by being a member of the Family of Nations,
implicitly agrees to abide by its rule. Just as "no man is an island
sufficient unto itself," so is no State capable of living today in
41
dreadful isolation from the reBt of the world.
**Tba Rule of L A W Among Nations, Background Information, April, I960,

pp. 4-6.
" S e e T h e Paquate Unburn' (1900), 175 U S 677.
16 I N T E R N A T I O N A L LAW A N D W O R L D POLITICS
IB Public International Law independent of Municipal Law?

There are two viewpoints on this question: the theory of MoniBm
of which Hans Kelsen is the notable exponent; and the theory of
Dualism (or even Pluralism, as will subsequently be pointed out).
\Monistic View:'According to the Monists, both l a w s ^ e p e n d /
on each other; both are ultimately directed to the same individual
(for, after all, States are composed of individuals); indeed "the
behavior of a State is reducible to the behavior of the individuals
42
representing the State." While ostensibly public international law
deals with foreign affairs and national law concerns itself with
domestic affairs, "every so-called domestic affair of a State can be
made the subject matter of an international agreement and so be
transformed into a foreign affair."**
Dualistic or Pluralistic View: According to the Dualists —

Public International Law is completely distinct from Municipal
Law. Inasmuch as each State has its own Municipal Law, Public
International Law varies with as many Municipal Law, Public
International Law varies with as many Municipal Laws as there
are sovereign States — hence the term "Pluralism" or "Pluralistic
View." The Dualists and Pluralists hold that international law
andjiational law are mutually pidependent^pf each other, each
possessed of ^TdTsTihct subject matter^îBreign affairs" and "do-
mestic affairs," respectively). They also believe that international
law is "interstate law" law, whereas national law, so to speak is
"one-state" law. International Law to them is created by the co-
operation of two or more States; municipal law, upon the other
hand, is created by acts of one State alone, and even by actuations
44
which are not officially "Acts of State."
RELATION BETWEEN PUBLIC INTERNATIONAL LAW

AND "PHILIPPINE- MUNICIPAL LAW
Public International Law has been made an integral part of our
Constitution in light of a provision in the Declaration of Principles in
the 1935, the 1973, and the 1987 Philippine Constitutions:
Thus, Art. I I , Sec. 3 (1935 Constitution), reads:
"Kelsen, Principles of International Law, p. 404

"Ibid.
"Kelsen, op. eit., pp. 406-406.
PRELTMINART CONSIDERATIONS - 17
"The Philippines renounces war ae an instrument of

national policy, and adopts the generally accepted principles
of international law as a part of the law of the Nation."
Thus, also Art. I I , Sec. 3 (1973 and 1967 Constitutions),
ready- " f; eucTW** CV ^n^^rrn ^*.'0
y ^ T h e Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international
l a w as part of the law of the land, and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all
nations."
"War" as used in the Article refers clearly to "aggressive'' war,
inasmuch as Art. V I , Sec. 15 of the 1935 Constitution states T h e
Congress shall, with the concurrence of two-thirds of all the Mem-
bers of each House, have the sole power to declare war" (evidently
referring to a defensive war); correspondingly. Art. V I I I , Sec. 14(2)
of the 1973 Constitution says that T h e National Assembly, by a
vote of two-thirds of all its members, shall have the sole power to
declare the existence of a Btate of war." In the same manner, Art.
VI, Sec. 23(1) of the 1987 Constitution provides that T h e Congress,
by a vote of two-thirds of both houses in joint session assembled,
voting separately, shall have the sole power to declare the exist-
ence of a state of war."
T h e generally accepted principles of international law" in-

clude, inter alia:
(1) the acquisition of territory by prescription;
(2) the doctrine of res judicata;
(3) the rule that an accuser-State cannot at the same time
be the judge;
(4) the principle of "prior exhaustion of national remedies"
45
before resort can be had to international tribunals; and
„. (5) the rule that all persons (whether military or civilian),
guilty of waging aggressive w a r B , should be held accountable
46
therefor.
"The Interhandet Case, Decision of the Internationa] Court or Justice,

March 21, 1949.
y
s **Kuroda v. Jalandoni, 83 Phil. 171 (1949).
y
[NOTE: Regarding the incorporation of international law into

the municipal law of the Philippines, four theories may be cited:
(a) the T R A N S F O R M A T I O N doctrine (which provides
Lhat to become a part of municipal law, each individual rule
of international law must be consciously incorporated in it by
legislative act, promulgation of a treaty, etc.)
(b) the ADOPTION doctrine (which means that the
municipal laws of a country implicitly include principles of
international law — without need of express incorporation —
BUT only insofar as said principles are C O N S I S T E N T with
municipal law)
(c) the H A R M O N I Z A T I O N doctrine (where interna-
tional law is applied only when considered A P P R O P R I A T E
by local tribunals). (See D.P. O'Connell International Law, Vol.
I, pp. 50-51.)
(d) the RESTRICTED A U T O M A T I C doctrine (where
as long as there is constitutional authority , international
law is automatically considered part of our law, whether or
not there is inconsistency with municipal legislation, and
whether or not express reference to international law is made
in specific statutes, B U T restricted in the sense that only
GENERALLY ACCEPTED PRINCIPLES OF INTERNA-
T I O N A L L A W have been adopted as part of the law of the
nation. This would seem to be the Philippine position on the
matter.]
THE INTERHANDEL CASE

(Decision of the International Court of Justice of March 21,
1949)
FACTS: Prior to the Second World War, a Swiss corporation,

the Interhandel, was closely affiliated with the German firm, t h e
I.G. Farben Company. The Swiss corporation owned certain shares
in the General Aniline and Film Corporation, an American com-
pany registered in Delaware, U.S. When World Was II broke out,
the Interhandel assets ( t h e shares) in America were frozen by the
United States on the theory that they were the property of t h e
German firm "I.G. Farben," and were, therefore, to be regarded as
"enemy property" in view of the war between Germany and America.
In view of the refusal of the U.S. government to unblock the
$100,000 Interhandel assets, the Swiss government brought this
action before the International Court of Justice. Switzerland alleged
that in 1942, Interhandel had severed all connections with the
German company, and had, therefore, ceased to be under German
control. Upon the other hand, the United States objected to the
jurisdiction of the Court.
H E L D : The case should be dismissed because granting the
truth of the allegations of the Swiss government. _atillJ-h» Interna-
tional Court has NO jurisdiction over the case for the simple reason
that Switzerland has N O T Y E T exhausted the local remedies
available to it in the courts of the United States.
7y» Kuroda v. Jalandonl

T 83 Phil. 171
FACTS: Kuroda, formerly a Lieutenant-General of the
Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces, was charged before a Military
Commission set up by Executive Order No. 68 (of the President
of the Philippines). This Executive Order also established a
National War Crimes Office and prescribed r u l e s a n d regu-
lations governing the trial of accused w a r criminals.
Kuroda alleged:
(1) that Executive Order N o . 68 was illegal and uncon-
stitutional;
(2) that the Military Commission lacked jurisdiction
to try him for acts violative of the Hague and Geneva Con-
ventions (relating to war) as the Philippines was not a sig-
natory to the first, and that it had Bigned the second only in
1947 (long after the acts complained of had been committed);
and
(3) that the participation of two American attorneys in
the prosecution was violative of our national sovereignty.
Kuroda, thus, petitioned for a writ of prohibition from the
Supreme Court, directed against the Military Commission.
HELD:
(1) Executive Order N o . 68 is legal and constitutional
— because Art. 2 of our (1935) Constitutional provides in Sec.
3. that —
20 INTERNATIONAL L A W A N D W O R L D POLITICS
T h e Philippines renounces war as an instrument of

national policy, and adopts the generally accepted principles
of international law as part of the law of the nation."
In accordance with the generally accepted principles of
international law of the present day, including the Hague
Convention, the Geneva Convention, and the significant prec-
edents of international jurisprudence established by the United
Nations, all those persons, military or civilian, who have been
guilty of planning, preparing, or waging a war of aggression
and of the commission of crimes and offenses consequential
and incidental thereto, in violation of the laws and customs
of war, of humanity and civilization, are held accountable
therefor. Consequently, in the promulgation and enforcement
of Executive Order N o . 68, the President of the Philippines
had acted in conformity with the generally accepted principles
and policies of international law which are part of our Con-
stitution. Indeed, the promulgation of Baid executive order, is
an exercise by the President of his powers as Commander-in-
Chief of all our armed forces, as upheld by this Court in the
case of Yamashita v. Styer."
(2) With regard to the second contention, it cannot be

denied that the rules and regulations of the Hague and Geneva
Conventions form part of and are wholly based on the gen-
erally accepted principles of international law. In fact, these
rules and principles were accepted by the two belligerent
nations, the United States and Japan, who were signatories
to the two Conventions. Such rules and principles, therefore,
form part of the law of our nation even if the Philippines was
not a signatory to the conventions embodying them, for our
Constitution has been deliberately general and extensive in
its scope, and is not confined to the recognition of rules and
principles of international law as contained in treaties to which
our government may have been or shall be a signatory.
(3) With reference to the third allegation — be it noted

that when the crimes charged against petitioner were alleg-
edly committed, the Philippines was under the sovereignty of
the United States, and thus we were equally bound together
with the United States and with Japan, to the rights and
4,
L-129, 42 O.C. 664.
PRELDflNARY C O N S I D E R A T I O N S 21
obligations contained in the treaties between the belligerent

countries. These rights and obligations were not erased by
our assumption of full sovereignty. If, at all, our emergence
as a free State entitles us to enforce the right, on our own,
of trying and punishing those who committed crimes against
9
our people. Applying the rule we stated in Laurel v. Afisa,*
we hold that war crimes committed against our people and
our government while we were a Commonwealth are triable
and punishable by our present Republic. The petition for
prohibition is thus hereby denied.
Note: Elsewhere in the Constitution are provisions con-

cerning inter alia, the following topics of international law:
(1) the delimitations of Philippine territory (Art. 1,1935
Constitution), and the definition of Philippine territory (un-
der Art. 1, Sec. I, 1973 Constitution and Art. I, Sec. 1, 1987
Constitution).
(2) the making of treaties, and the appointment and
reception of diplomatic and consular officials. (Art. V I I , Sees.
21 and 16, 1987 Constitution).
(3) the original jurisdiction of the Supreme Court over
cases affecting ambassadors, other public ministers, and
consuls. (Art. V I I I , Sec. 5[1], 1987 Constitution).
(4) the power of the President to contract and guaran-
tee foreign loans on behalf of the Republic. (Art. V I I , Sec. 20,
1987 Constitution).
RULE WTTH RESPECT TO FILIPINOS WHO HAVE

ACQUIRED AMERICAN CITIZENSHIP
If a Filipino acquires lawfully a parcel of private land (i.e.,
any land of private ownership) and later becomes an American
citizen, what happens to his ownership over the land? The person's
ownership over the land continues but the land, except in the case
of hereditary succession may be transferred only to individuals.
**78 Phil. 372. The Laurel Case said: T h e change of our form of govern-
ment from Commonwealth to Republic does not affect the prosecution of those
charged with the crime of treason committed during the Commonwealth, because
it is an offense against the same government and the same sovereign people."
I N T E R N A T I O N A L L A W A N D W O R L D POLITICS
corporations or associations qualified to acquire or hold lands of

the public domain. (See Sec. 7, Art. X I I , 1967 Constitution). Sec.
8 provides, however: "Nothwithstanding the provisions of Sec. 7,
a natural-born citizen of the Philippines who has lost his Philip-
pine citizenship may be a transferee of private lands, Bubject to
limitations provided by law."
NOTEWORTHY FACT: The Philippines is a member of the

United Nations Organization and several of its organs and agen-
cies. Then, too, the Philippines is a signatory to the Universal
Declaration of Human Rights, to the A S E A N (Association of
Southeast Asian Nations) consisting of the Philippines, Malaysia,
Indonesia, Thailand, Singapore, and Brunei, and to various other
military and civil or commercial treaties. It has been suggested
that in arriving at decisions, the A S E A N should disregard una-
nimity and substitute the more flexible consensus method. (See
suggestion of then Singapore Prime Minister Lee Kuan Yew in his
keynote address at the ninth A S E A N C O N F E R E N C E of economic
49
ministers).
Be it remembered too that in our Civil Code, we have the

following provisions:
"Penal laws and those of public security and safety shall
be obligatory upon all who live or sojourn in Philippine ter-
ritory, subject to the principles of public international law
50
and to treaty stipulations."
Then a g a i n , under our Rules of Court, among the thingB con-
sidered to be of judicial notice are the following:
(1) the existence and territorial extent of States;
(2) their forms of government and symbols of nation-
ality;
(3) the law of nations; and

(4) admiralty and maritime courts of the world and their
seals."
"Bulletin Today, April 23. 1980.

" A r t . 14, Civil Code of the P h i l i p p i n e
•'Rule 129, Sec. 1. Rules of Court.
PRELIMINARY CONSIDERATIONS 23
CONFLICT BETWEEN PUBLIC INTERNATIONAL LAW

AND MUNICIPAL LAW
As a matter of almost universal acquiescence and practice,
we can postulate the following propositions in case of a clash or
conflict between the norms of international law and the norms of
municipal legislation:
(1) If the matter were to be decided by an internationally
created tribunal, there is no doubt that international law would be
held to prevail.
[Thus, in the Greco-Bulgarian "Communities" Case, the
Permanent Court of International Justice (1930) held: "It is a gen-
erally accepted principle of international law that in the relations
between Powers who are contracting Parties to a Treaty, the
provisions of municipal law cannot prevail over those of the
52
treaty." Similarly, in the Aroa Mines Case, the tribunal con-
cerned ruled: T h e r e could be no question that national laws muBt
53
yield to the law of nations if there was a conflict."]
(2) If the matter is decided by a municipal tribunal:

•(a) international law would prevail if it conflicts with
54
a /breignjmunicipal law ( N O T E : It has also been held that
International tribunals, BB organs of the law of nations, must
neglect even the Constitution of a State in favor of interna-
56
tional law.")
(b) municipal law prevails if the conflict is between
international law and the municipal law of the tribunal de-
ciding the case. ^
Scbxoeder v. Bissel Collector

5 F. (2d) 838
FACTS: Under Sec. 447 of the American Tariff Act of
1922, it is unlawful for any ship to unload any part of its
"Publication of the Permanent Court of Justice, Series B. No. 17. p. 32.

"Aroa Mines (Ltd.), Ra Is ton's Report (1914), p. 344.
"Schufeldt Claim, Decision of July 24, 1930.
George Pinson Case, Annual Digest 1927-1928, Case No. 4, French-Medi-
a n Mixed Claims Commission (1928).
"•See Mortenmn v. PeUru, Grant Britain, High Court of the Judiciary of
Scotland. 1906. 8 Sessions 93.
cargo of goods at a place other than a port of entry. Now

then, an English vessel unloaded part of its cargo at a place
19 miles away from the coast of the United States, where-
upon it was seized by the American coast guard. It was al-
leged that the seizure violated the tenets of international law
because it had been made beyond the territorial or maritime
zone of the United States.
HELD: The seizure is valid despite the alleged violation
of international law. What is important is that a statute of
the United States has been violated. In justifying its position,
the American court said that: "International law is law in so
far as we adopt it, and like all common or statute law, it
bends to the will of Congress. . . [even if] the act may contra-
9
vene recognized principles of international comity." *
CONFLICT BETWEEN A TREATY AND A CONSTITUTION

In case of irreconcilable conflict between a treaty and a
municipal constitution, which should prevail?
(1) From the viewpoint of the world, international law ought
to prevail to avoid international embarrassment and to prevent
charges of international delinquency. The State must accordingly
57
update its municipal constitution.
(2) From the viewpoint of the State itself, it would seem
that most constitutions (including our own) provide that a treaty
may be declared unconstitutional by a State's own national courts;
it is, thus, clear that, from this standpoint, municipal law prevails
— though of course it should also be evident that "the decision of
a national court, while binding on municipal authorities would
have NO international effect," for indeed it is a settled principle
of international law that a sovereign cannot be permitted to set up
its municipal law against a claim founded on international law.
58
(See Thomas v. Gray, where the Supreme Court of the United
States ruled that "a treaty may supersede a prior act of Congress;
and an act of Congress may supersede a prior treaty.")
**See also "Over the Top." 15 Fed. Reporter. 2nd Series 842.
"Decision of the Mexican-French Claims Commission of Oct. 19, 1928
M
1 6 9 U.S. 264.
PBSLDfDUBY C O N S I D E R A T I O N S
N O T E : In the Philippines, the Supreme Court, by way of an

obiter dictum, has also opined that a treaty may be nullified by a
89
subsequent act of the^Philippine Congress.
/ l c h o n g v. Hernandez
L-7996, M a y 31, 19S7
FACTS: Congress of the Philippines enacted the Nation-
^ alization of the Retail Trade Act, prohibiting aliens in general
to engage in retail trade in our country. It was contended
that the Act violated the U . N . Charter, the U . N . Declaration
of Human Rights, and the Philippine Chinese Treaty of Amity
of April 18, 1947.
HELD: The Retail Trade Act does not violate the Charter
of the U.N. or the U.N. Declaration of Human Rights. The U.N.
Charter imposes no strict or legal obligation on the States re-
garding the rights and freedom of their subjects. And the
Declaration of Human Rights contains nothing more than a
mere recommendation or a common standard of achievement
for all peoples and all nations. Members of the United Nations,
such as Norway and Denmark, prohibit foreigners from engag-
i n g in retail trade. Most nations enact laws against foreigners
engaged in domestic trade. Neither has the Treaty of Amity
between the Philippines and China on April 18, 1947 been
violated. The Treaty merely guarantees equality of treatment to
Chinese nationals in the Philippines — equality "upon the Bame
terms as the nationals of any country" (except, of course, the
Parity Amendment in favor of Americans). And even if the Retail
Trade Law infringes on the Treaty, it should be remembered
that a Treaty is always subject to qualification, or amendment by
a subsequent law. A Treaty may never curtail or restrict the
police power of the state.
Phil. Association of Free L a b o r Unions

( P A F L U ) et al. v. Secretary of L a b o r et al.
L-22228, Feb. 27, 1969
FACTS: Sec. 23 of Rep. Act No. 875 requires registra-
tion with the Office of the Secretary of Labor, before a labor
"lehong v. Hernandez, L-7996, May 31, 19S7.

organization can acquire legal personality. Said See. 23 reads

as follows:
"Any labor organization, association, or union of work-
ers duly organized for the material, intellectual, and moral
well-being of its members shall acquire legal personality and
be entitled to all the rights and privileges granted by law to
legitimate labor organizations within 30 days of filing with
the office of the Sec. of Labor notice of its due organization
and existence, and (certain specified) documents. . .
It is alleged that said requirement of registration —

(1) violates freedom of assembly and association, and
is inconsistent with the Universal Declaration of Human
Rights
(2) should be deemed repealed by the International
Labor Organization Convention ( I L O Convention) N o . 87.
HELD: (Thru Mr. Chief Justice Roberto Concepcion):
The theory to the effect that Sec. 23 of Rep. Act No. 875
unduly curtails the freedom of assembly guaranteed in the
Bill of Rights is devoid of factual basis. The registration
prescribed therein is not a limitation to the right of assembly
or association, which may be exercised with or without reg-
istration. (Exparte R.J. Thomas, 174 S.W. 2d 958-960) The
latter is merely a conditio sine qua non for the acquisition of
legal personality by labor organizations, etc., and the pos-
session of the "rights and privileges granted by law to le-
gitimate labor organizations." The Constitution does not
guarantee these rights and privileges, much less said per-
sonality, which are mere statutory creations, for the posses-
sion and exercise of which registration is required to protect
both labor and the public against abuses, fraud, and impostors
who pose as organizers. Although not truly accredited agents
of the union they purport to represent, such requirement is
a valid exercise of police power.
For the same reasons, said Sec. 23 does not impinge

upon the rights of organization guaranteed in the Declara-
tion of Human Rights, or run counter to Art. 8 of the ILO-
Convention No. 87, which provides that "workers and em-
pkiyees shall have the right to establish and join organizations
of their own choosing, without previous authorization," that
PRBUHTNARY CONBIDEBATIONS 27
"workers and employees' organizations shall not be liable to

be dissolved or suspended by administrative authority," that
"the acquisition of legal personality by workers and employ-
ees' organizations shall not be made subject to conditions of
such a character as to restrict the application of the provisions"
abovementioned, and that "the guarantee provided for in"
said Convention shall not be impaired by the taw of the land.
The cancellation of a labor union's registration certificate (for
failure to comply with important requirements) would not
entail a dissolution of said association or its suspension. The
EXISTENCE of the organization would not be affected by
said cancellations, although its juridical personality and its
statutory rights and privileges — as distinguished from those
conferred by the Constitution — would be suspended thereby.
(See also B.S.P. v. Araos, L-10091, Jan. 29, 1958).
DISTINCTIONS FROM RELATED SUBJECTS

(1) Public and Private International Law
The term "International L a w " may be divided into two
principles: Public International Law, which is the subject of this
treatise, and Private International Law (otherwise known as the
Conflict of Laws.)
(a) According to the Monist School of Thought, there is
no substantial difference between the two, for while Private
International Law deals primarily with private individuals,
and Public International Law concerns itself with the affairs
of States, still States are essentially made up of individuals.
Hence, it is claimed that both subjects deal with principles
that may equally apply to States and to private individuals.
(b) According to the Dualist School of Thought, at least

four (4) distinctions present themselves:
(1) Persons Involved — Private International Law
deals with private individuals; Public International Law
reckons with States and such other entities as are pos-
sessed of an international personality, e.g., the United
Nations Organization.
(2) Transactions Affected — Transactions be-
tween private citizens involving a foreign element con-
stitute the subject matter of Conflict of Laws; the Law
of Nations seeks to resolve the relationship among sov-

ereign States.
(3) The Nature of the Law — Private Interna-
tional Law, despite its name, is really municipal or
national in character inasmuch as each State has its
own conflict rules; Upon the other hand, there are gen-
erally accepted principles of Public International Law,
giving to the subject an "international" nature.
(4) Sanctions and Remedies — In Private Inter-
national Law, recourse is had before municipal tribu-
nals; in the case of Public International Law, sanctions
may take the form of peaceful remedies (e.g., diplomatic
negotiation, tender and exercise of good offices, media-
tion, conciliation, arbitration, settlement by the Interna-
tional Court of Justice) or forcible measures (e.g., repris-
als and war).
International Law Practice
R e n a t o L. Cayetano v. Christian Monsod

GJL N o . 100113, September 3, 1991
Justice Edgardo L. Paras:
Today, the study of law practice direly needs a "shot in
the arm," so to speak. No longer are we talking of the tra-
ditional law teaching method of including the subjects of in-
ternational corporations and securities but an incursion as
well into the intertwining modern international management
issues.
Such corporate legal management issues deal primarily

with three types (3) of learning: (1) acquisition of insights
into current advances which are of particular significance to
the corporate counsel; (2) an introduction to usable discipli-
nary skills applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and
management of the legal function itself.
These three subjects areas overlap and for this reason

they may be thought of as intersecting circles, with a shared
area linking them. Otherwise known as "intersecting mana-
gerial jurisprudence," it forma a unifying theme for the cor-
porate counsel's total learning.
Some current advances in behavior and policy sciences

are the following:
One. Framing the Changing World for Corporate Man-
agers — Its Relation to the Counsel's Role. This aspect re-
views globalization, the resulting strategic repositioning that
firms are required to make, and the need to think about a
corporation's strategy at multiple levels. The salience of the
nation-State is being reduced SB firms deal both with global
multinational entities and simultaneously with sub-national
governmental units. Firms increasingly collaborate not only
with public entities but with each other — often with those
who are competitors in other arenas.
Two. Human Resource Strategies and Corporate Deci-

sion-Making. The nature of employee participation in deci-
sion-making within the corporation is rapidly changing. Em-
ployees are gaining new roles as stakeholders — in some
cases participating in the organization and operations of gov-
ernance thru participation on boards and other decision-mak-
ing roles. Often, these new patterns develop alongside exist-
ing legal institutions, and laws, are perceived as barriers.
These trends are complicated as corporations organize for
global operations.
Three. Governmental Policies Toward the Promotion and

Management of Technology. New collaborative arrangements
for promoting specific technologies or competitiveness gener-
ally require approaches from industry that differ from older,
more adversarial relationships and traditional forms seeking
to influence government policies. And there are lessons to be
learned from other countries. In Europe, Esprit, Eureka and
Race are examples of collaborative efforts between govern-
mental and business, Japan's MITI is world famous.
Four. Boundary Spanning. The office of the Corporate

Counsel comprises a distinct group within the managerial
structure of all kinds of organization. Effectiveness of both
long-term and temporary groups within organizations has been
found to be related to îdentifiable factors in the group-con-
text interaction such as the groups actively revising their
knowledge of the environment, coordinating work with out-
siders, promoting team achievements within the organiza-
tion. In general, such external activities are better predictors
of team performance than internal group processes.
Five. Managerial Aspects of Crisis Management, Bhopal,

the Challenger, the Tylenol bottling incident, a n d similar
unexpected events test the managerial mettle of corporations.
Current research is seeking ways both to anticipate effective
managerial procedures and to understand relationships of
financial, liability, and insurance considerations.
Regarding the Bkills to apply by the corporate counsel,
three factors are apropos:
First. System Dynamics. The field of systems dynamics
has been found an effective tool for new managerial thinking
regarding both planning and pressing immediate problems.
An undestanding o f the role of feedback loops, inventory lev-
els, and rate of flow, enable users to simulate all sorts of
systematic problems — physical, economic, managerial, so-
cial, and psychological. New programming techniques now
make the sytems dynamics principles more accessible to
managers — including corporate counsels.
Second. Decision Analysis. This enables users to make

better decisions involving complexity and uncertainty. In the
context of a law department, it can be used to appraise the
settlement value of litigation, aid in negotiation settlement,
and minimize the cost and risk involved managing a portfolio
of cases.
Third. Modeling for Negotiation Management. Computer-
based models can be used directly by parties and mediators
in all kinds of negotiations. An integrated set of such tools
provide coherent and effective negotiation support, including
hands-on instruction in these techniques. A simulation c a s e
of an international joint venture may be used to illustrate the
point.
Finally, the organization and management of the legal

function, concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires
special skills that comprise a major part of the general coun-
sel's responsibilities. They differ from those of remedial law.
Preventive lawyering is concerned with minimizing the risks
of legal trouble and maximizing legal rights for such legal
entities at that time when transactional or similar facts are
being considered and made.
Managerial Jurisprudence. This is the framework within

which are undertaken those activities of the firm to which
legal consequences attach. It needs to be directly supportive
of this nation's evolving economic and organizational fabric
as firms change to stay competitive in a global, interdependent
environment. The practice and theory of "law" is not adequate
today to facilitate the relationships needed in trying to make
a global economy work.
Organization and Functioning of the Corporate Coun-

sel's Office. The general counsel has emerged in the last dec-
ade as one of the most vibrant subsets of the legal profession.
The corporate counsel bear responsibility for key aspects of
the firm's strategic issues, including structuring its global
operations, managing improved relationships with an in-
creasingly diversified body of employees, managing expanded
liability exposure, creating new and varied interactions with
public decision-makers, coping internally with more complex
decisions.
RP Conflict of Laws
If in a moment of deep infatuation, a Filipino lawyer

(member of the Integrated Bar of the Philippines) gets mar-
ried in Brunei to a lovely, midi-skirted female from strife-
torn Bosnia-Hercegovina, the following questions may right-
fully be asked: Which country's law will govern the validity
of the marriage? Which particular legal system will govern
their personal rights and obligations as husband and wife,
assuming the marriage to be valid? How about their matri-
monial property relations?
The responses to these legal interrogations will, insofar
as we are concerned, depend, to a very great extent on the
application of what we shall refer to as Philippine Conflict
of Laws (otherwise called Philippine Private International
Law).
As fittingly pointed out by Professor Robert A. Leflar,
former Justice of the Supreme Court of Arkansas, "any case
which involves facts occurring in more than one State or
nation, so that in deciding the case, it is necessary to make
a choice between the lawa of the different States or countries,
is a conflict of laws case."
For that matter, "conflict of laws" is that part of the

municipal law of a State which directs its courts and admin-
istrative agencies, when confronted with a legal problem
involving a foreign element, whether or not they should apply
a foreign law or foreign laws.
With the amazingly rapid growth of modern international
commerce, con Ret of laws has assumed increasing importance.
For instance, two individuals, nationals and domicilliaries of
two different States may in the space of a few hours, engage
in a mercantile transaction over chattels still to be manu-
factured in a third State, and to be delivered at a given port
of a fourth State. Should legal complications ensue, which of
the countries involved will have jurisdiction over the case,
and which State's laws will be applicable?
Stated otherwise, we may say that the subject is impor-

tant in order (a) to adjust conflicting rights in international,
mercantile and corporate transactions; and (b) to solve per-
sonal, family, property, and successional, contractual problems,
possessed of facts or elements operating in two or more States.
For instance, it would seem that the personal law of the
corporation (law of the place of incorporation) g o v e m B , inter
alia, the following matters: (1) the requisites for the forma-
tion of the corporation (but not the pre-corporation contracts
such as those entered into by promoters preliminary to the
incorporation of the company. Such preliminary contracts are
governed by the proper law of the contract; (2) the kinds of
stocks allowed; (3) the transfer of stocks in a way that would
be binding on the corporation; (4) the issuance, amount, and
legality of dividends; and (5) the powers and duties of
members, stockholders, and officers (in general).
Be this as it may, there are three (3) specific aims or

functions of conflict of laws, namely: (1) the determination of
which country has jurisdiction; (b) the applicability to a
particular case of either the local or the foreign law; and (c)
the determination of the force, validity, and effectiveness of
a foreign judgment.
Let us suppose that a Filipino moviestar goes to Reno,
Nevada, and obtains a decree of absolute divorce from his
Filipino wife. Let us further suppose that three years later
the Filipino wife sues in Manila for support from said hus-
P R E L I M I N A R Y CONSIDERATIONS
band. Three questions will confront the Filipino judge. Firstly,

does he have jurisdiction over the case? Secondly, what law
will he apply in determining whether or not a proper cause
of action exist — shall it be Nevada law or Philippine law?
Thirdly, should he recognize as valid and binding in the
Philippines the Reno divorce decree?
Now BB to a foreign divorce obtained by a foreigner

married to a Filipino, bear in mind that the purpose of the
second paragraph of Article 26 of the Family Code of the
Philipines is to avoid unfairness to a Filipino spouse.
What does said proviso say? "Where a marriage between
a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse
shall likewise have capacity to remarry under Philippine
law."(2nd par., Art. 26 of The Family Code.) Note that the
rule does not apply if both parties are Filipinos.
The case of Pilapil v. Hon, Ibay-Somera, G.R. No. 80116,
June 30, 1989, decided by the Philippine Supreme Court,
concerns an ill-starred marriage of a Filipina and a foreigner
which ended in a foreign absolute divorce, only to be followed
by a criminal infidelity suit of the husband against the wife.
In the concurring opinion of Justice Edgardo L. Paras,
he stated that regardless of whether the German absolute
divorce should be considered as valid also in the Philippines,
the fact is that the husband in the instant case, by the very
act of his obtaining an absolute divorce in Germany can no
longer be considered as the offended party in case his former
wife actually had carnal knowledge with another, because in
divorcing her, he already implicitly authorized the woman to
have sexual relations with others. A contrary ruling, Justice
Paras intoned, would be lesB than fair for a man, who, al-
though free to have sex will be allowed to deprive the woman
of the same privilege.
In the case of Recto V. Harden, 100 Phil. 427 [1966], the

Philippine Supreme Court considered the absolute divorce
between the American husband and his American wife aB
valid and binding in the Philippines on the theory that their
status and capacity are governed by their national law, i.e.,
American law. According to Justice Paras, there is no deci-
sion yet of the Supreme Court regarding the validity of such

a divorce if one of the parties, say an American, is married
to a Filipino wife, for then two different nationalities would
be involved.
In the book of former Philippine Senate President Jovito
Salonga entitled "Private International Law" and precisely
because of the national law doctrine, he considers the ab-
solute divorce as valid insofar as the American husband is
concerned but void insofar as the Filipino wife is involved.
This results in what he calls a "socially grotesque situation,"
where a Filipino woman is still married to a man who is no
longer her husband.
However, it is Justice Paras' opinion that very likely the

opposite expresses the correct view. While under the national
law of the husband the absolute divorce will be valid, still one
of the exceptions to the application of the proper foreign law
(one of the exceptions to comity) is when the foreign law will
work an injustice or injury to the people or residents of the
forum.
Continued Justice Paras: "Consequently since to recog-

nize the absolute divorce as valid on the part of the husband
would be injurious or prejudicial to the Filipino wife whose
marriage would be still valid under her national law, it would
seem that under our law existing before the new Family Code,
the divorce should be considered void both with respect to the
American husband and the Filipino wife."
The case of Van Corn u. Judge Romillo, Jr., G.R. No.

68470, Oct. 8, 1985, cannot apply despite the fact that the
husband was an American with a Filipino wife because in
said case the validity of the divorce insofar as the Filipino
wife is concerned was never put in issue.
(2) Public International Law and International Comity
While the Law of Nations presupposes precepts of law, in the
sense already defined, International comity (in connection with
Public International Law) relates to rules of international courtesy,
etiquette, or good-will which are in fact, or which ought to be,
60
observed by StateB in their mutual relatione. International
*°Hershey, Essentials of International Law, p. 3.

comity may manifest itself in various forms such ai the practice
of diplomatic protocol and extradition even in the absence of a
definitive treaty on the matter.
(3) Public International Law and International Morality of

International Ethics.
International morality or ethics is not premised on positive
law; rather it seeks to bind by appealing to the conscience, justice,
and humanity*
(4) Public International Law and International Diplomacy
This in the wider eense of the term) is simply the conduct of
international relations, based on intrigue, tact, and the upholding
1
of national prestige.* As a wit has cunningly put it (in a light
vein, naturally), "a diplomat is an honeBt man sent abroad to lie
for his country."
(5) Public International Law and International Adminis-
trative Law
International administrative law seeks to regulate the inter-
nal functionings of international bodies. These bodies in turn take
care of material and cultural affairs that have merited interna-
tional concern, e.g., international communication and transporta-
tion, sanitation, and copyrights.**
INTERNATIONAL CORPORATE COUNSEL

A corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of
the few opportunities available to corporate lawyers to enter the
international law field. After all, international law is practised in a
relatively small number of companies and law firms. Because working
in a foreign country is perceived by many as glamorous, this is an
area coveted by corporate lawyers. In most cases, however, the overseas
jobs go to experienced attorneys while the younger attorneys do their
"international practice" in law libraries. (Edgardo C. Paras, Jr.,
Economics for Lawyers [Manila; Rex Bookstore, 1993], p. 21, citing
Cayttano v. Monsod, G.R. No. 100113, Sept. 3, 1991).
"Ibid., » . 2 .
m
Ibia\, pp. 3-1.
ETHICAL HOLE OF AN INTERNATIONAL LAWYER

Ethics is the systematic study of the ultimate problems of
humlifTconduct.
The distinguishing factors between morals and ethics are
readily apparent: Law is formulated and imposed by the State;
morals by conscience, beliefs and the attitudes of society. Law has
fixed and powerful sanctions; morality is sanctioned, if at all, by
public opinion, disapproval, possibly ridicule and exclusion from a
particular society.
The distinction between law and morals in respect of object-

matter and application lies in such facts as that law as regard to
acts, morals to thought and feeling; legal rules are of general and
absolute application, whereas moral principles must be applied
with reference to individuals and circumstances.
Thus, the main principles of ethical conduct, inter alia, ex-
pected of an international lawyer are that, in relation to his client,
he will maintain confidentiality about everything revealed to him
during the professional relationship and will always use his ability
to secure the client's interests, but will not knowingly be a party
to any fraud, dishonesty or underhanded dealings.
In relation to other members of the profession, an international

lawyer must deal honestly with them and implement undertakings
to them.
In relation to the courts, the international lawyer should not
participate in any fraud in the courts as by putting forward false
evidence, should not put forward any misleading arguments or
misrepresent or conceal any authorities relevant to his case,
whether in favor or against hiB client.
SPECIALIZED AREAS OF INTERNATIONAL LAW

Today, more than other time in the history of the world,
international law, in all its multicolored aspects, tremendously
influences every single State and man existing.
The importance of international law has dramatically in-
creased in a world characterized by growing interrelationships
among nations. International peace and development, economic
and financial issues, protection of human rights and cultural and
scientific exchanges are essential subjects that require institutions,
norms and procedure to ensure order with justice. Indeed, the

significant areas of specialization of international law have not
diminished in their relative strength, and, therefore, cannot be
scoffed at.
These four specialized areas are:
International Trade — This area of concentration deals with
international commercial transactions and international finance
in which private banks participate; international trade law con-
ventions, such as the sale and carriage of goods, and commercial
arbitration conventions; export and import control; the ruleB of the
General Agreement on Tariffs and Trade, customs tariffs, the Trade
Act of 1974, and the tax and anti-trust laws as they bear on the
conduct of foreign trade; techniques of financing trade and large
scale international loans; venture capital transactions; the Trad-
ing with the Enemy Act; techniques for tracing and protecting
expropriated property in international commerce; and alternative
means of transnational dispute resolution.
International Organization — This includes the study of

internal processes, lawmaking functions and general activities of
selected regional and international organizations such as the United
Nations, the Organization of American States, the Organization of
African Unity, the North Atlantic Treaty Organization, the Asso-
ciation of South East Asian Nations, the Eurfipean Economic
Community, and the Council of Europe. It also includes an analy-
sis of the interrelationships of such organizations, the relationship
between the organizations and their member-nations, and the role
of individuals. Additional areas of analysis include the fundamen-
tal issues of contemporary international law and the handling of
such problems thru international organizations in the law of the
sea, human rights, cooperation for development, and peace and
security.
International Finance and Banking — This includes the study

of international financial institutions such as the World Bank, the
International Monetary Fund, the Inter-American Development
Bank, the Asian Development Bank, inter alia, and their impact
on international and private commercial and banking practices;
techniques for co-financing development projects between these
international institutions and private banks; the applicable pro-
curement rules and practices governing how businessmen can bid
for contracts under projects financed by these public institutions;
restraints on foreign banks imposed by domestic governments;
restrictions on the movement of money and assets across national

borders; the Bretton Woods Agreement; problems created by ex-
change control measures in the transfer of funds and securities,
and the extraterritorial effect of extraordinary measures; and the
regulation of foreign banks overseas.
International Protection of Human Rights — This area of
concentration includes the study of both the international law of
human rights and the international humanitarian law. Interna-
tional developments regarding human rights, include the ongoing
process of defining international rights — especially after the
Second World War — and the development of different forms of
international supervision. This area embraces developments both
at the universal (United Nations, International Labor Organiza-
tion, United Nations Educational Scientific and Cultural Organi-
zation) and the regional levels (Organization of American States,
Council of Europe). Humanitarian Law includes the study of inter-
national principles and rules regulating the conduct of interna-
tional and non-international armed conflicts, as well as traces the
historical development of restraints on armed conflict. Students in
thi6 area focus their study on the distinction between rules gov-
erning recourse to armed coercion and those governing the conduct
of armed hostilities.
PROOF OF INTERNATIONAL LAW OR OF

INTERNATIONAL FACTS
Even in the purely municipal State, some disputes or cases,

for their adjudication, need proof of international law or of in-
ternational facts (e.g., proof that a particular defendant is a dip-
lomatic official, proof that a certain State has been recognized by
the forum, proof that a State of war exists, proof that a certain
country is merely the protectorate of another). Some of these in-
ternational facts may be matters of judicial notice; others require
proof. In many countries, the Executive Department usually issues
an "executive certificate" attesting to certain relevant facts (e.g.,
that a particular vessel is owned by a foreign State), and sometimes
including even "conclusions of law" (e.g., that such ship is immune
from the judicial process). In some countries, as in the United
States, use is made of the so-called "suggestion." Inevitably con-
flicts may arise between the executive and the judicial departments,
causing embarrassment to all concerned. (See D.P. O'Connell,
International Law, Vol. I, pp. 123-133).
PRELIMINARY CONSIDERATIONS
STRUCTURE OF PUBLIC INTERNATIONAL LAW

The relations between sovereign politics are three-pronged,
according to a respected authority in public international law,
Associate Justice Florentino P. Feliciano of the Philippine Supreme
Court, to wit: (1) the law of treaties and other international
agreements; (2) the law on armed conflict; and (3) the rubrics of
international delinquencies or torts and the international respon-
sibility of States.
"The law of treaties and other international agreements ad-

dresses issues raised by relationships exhibiting in dominant de-
gree the element of consent freely given." (F.P. Feliciano, "Process
and Culture in Development Negotiations: The Management of
Consent," Foreign Relations Journal [A publication of the Philip-
pine Council for Foreign Relations], October, 1990, Vol. V, No. 3,
p. 84).
"The law on armed conflict, earlier called the law of war,

seeks to regulate and mitigate relationships characterized by the
mutual, systematic and relatively extensive and prolonged appli-
cations of military force, ordinarily regarded as the most intense
form of coercion." (Ibid.)
' | T ] h e rubrics of international delinquencies or torts and the
international responsibility of States deal with [disputes where
the parties invoke much less intense forms of coercion as instru-
ments of policy." (Ibid.)
WHY LDC'S ARE AT A DISADVANTAGE IN

NEGOTIATING MATTERS
Associate Justice Florentino P. Feliciano of the Philippine
Supreme Court, in his Process and Culture in Development Ne-
gotiations: The Management of Consent (1990), explained thus:
"Acquisition of basic skills in negotiations understood as
the generating, formulating and managing of consent is of
particular importance for the poor and developing countries,
which, commonly, are bereft of the means of exercising eco-
nomic and financial and ultimately of military pressures.
"At the same time, developing countries, many of which
are new or relatively new StateB, have had no long history of
negotiations with other countries or with foreign corporations.
They generally lack cadres of experienced negotiators in their
foreign offices, in their ministries of finance and of' trade and

industry, in their boards of investment , in their agencies
charged with the coordination and implementation of devel-
opment assistance, and in their private sectors.
"Impressionistic preparation for politically or financially
important negotiations could lead to failure to clarify and
take account of all the substantive interests at stake and to
failure to analyze, specify and 'operationalize' such interests
into concrete, sustainable negotiating positions or proposals.
[Negotiators] may sit down with their counterparts reiving,
more or less consciously, on confused, romantic notions of
'special' or 'historic relations' or shared 'fundamental inter-
ests,' and then fee] grievously disappointed when such coun-
terparts refuse to sacrifice their own interests and to defer to
the former's claims. The resulting agreement would, once
more, more probably than not he a fragile one and likely to
produce more issues in the implementation phase than were
resolved by the closing of the agreement itself.
"Frequently, Third World negotiators lack confidence in

their ability to deal effectively and successfully with devel-
oped-country negotiators across the table. If the projection of
policy and the resolution of disputes across as well as within
State boundaries by consensual rather than by coercive means
is important, if the erection of new wealth and the distribution
or redistribution of economic resources thru agreement-mak-
ing procedures rather than thru official impositions is impor-
tant, then raising the level of confidence of developing-country
negotiators in their own capabilities is important. That in-
crease of confidence should come when the negotiators learn
how to prepare themselves for serious and hard bargaining,
when they build up and accumulate experience and learn
from it.
"Confidence will take root and grow, above all, when

they come to understand that negotiating skills — intellec-
tual analysis, disciplined emotions and behavior, ability to
communicate lucidly and persuasively, willingness to listen
to and enter the skull of one's counterpart, high commitment
to plain hard work — can be acquired and developed and are
not the automatic function of level of technology or racial
endownment or cultural environment."
THE NEGOTIATION PROCESS

In the characteristic language of Dr. Florentino P. Feliciano,
a director of the International Development Law Institute:
'{Negotiation is most appropriately conceived of as a process
taking place over time and in space within the context of a par-
ticular economic, political, and cultural environment.
T h e negotiation process, so viewed, consists of a whole series
of related acts and operations running from preparation for ne-
gotiations, thru the actual conduct of negotiations and the ex-
ecution or closing of the agreement negotiated, to the imple-
mentation of that agreement.
"From this point of view, negotiation may be seen to refer,
not simply to the bargaining phase where concessions and coun-
ter-concessions are accepted or actively traded or rejected by the
parties, but to a whole agreement-making process, a process which,
most broadly considered, includes not only the implementation but
also the post-implementation phases.
T h e post-implementation phases include the evaluation of the
agreement as put into operation. Where evaluation shows that actual
performance falls significantly short of the goals originally projected,
revision and renegotiation of the agreement may be expected to en-
sure, or alternatively, the termination of the original agreement."
(NOTA BENE: In the view of Dr. Feliciano, the term "par-
ties" would embrace all entities and authorities whose cooperation
and approval is necessary for closing or concluding and imple-
menting the agreement reached, and those whose interest will in
fact be afTected and must be taken into account in hammering out
the actual shape of the agreement, in paper and in practice." (F.P.
Feliciano, "Process and Culture in Development Negotiations: The
Management of Consent [1990]).
(N.B.: Dr. Feliciano also of the Hague Academy of Interna-
tional Law avers that "negotiation is described in textbooks as a
mode of dispute resolution not involving the intervention of a third
party whether that third party be a mediator, a conciliator, an
arbitrator or a regular judge." (Ibid. )
THE ROLE PUBLIC INTERNATIONAL LAW HAS PLAYED

Three (3) vital questions may be asked concerning the role of
Public International Law in the world:
(1) Is it essential?
(2) Has it been successful?
(3) If success has not been overwhelmingly evident, what is
the remedy for international problems?
The First Question
Is Public International Law essential? The answer is indu-
bitably in the affirmative. Without a set of rules guiding their
behavior, States would inevitably clash with one another in the
pursuit of their own "sovereign rights." The lack of a coercive
international norm will mean the beginning of chaos. As well stated
by Brierly: "The existence of some kind of international law is
simply one of the inevitable consequences of the existence in the
world of a plurality of States necessarily brought into relations
with one another. . . . There need be no mystery about the primary
function of international law. Stated quite simply, what it tries to
do is to define or delimit the respective spheres within which each
of the States into which the world is divided for political purposes
is entitled to exercise its authority. Each of these States is inde-
pendent of the others, and each has its own governmental and
legal system; if there is not to be a clash between their respective
competences, there must clearly be some principles to determine
where the competence of one State ends and that of another be-
11
gins. These principles are given by international law."
The Second Question

Has Public International Law been successful? Our answer is
a distinction: in some affairs, the Law ofNations has been eminently
successful; in others, miserable failure has been \he r e f i l l
(e.g., the drawn out war between Iraq and Iran; between Israel
and the Palestine Liberation Forces under Arafat: the blood
murders and suicidal bomb attacks in Lebanon, India, Iraq. R i ; ^ i.
Georgia, Bosnia, Haiti, Angola, Somalia, Libya, and a hosl ofo' ;i ••
African States). Though cynics have been heard to remark thr;
"International Law is nothing but force and the rule of mi;:h.
over weakness," it cannot be denied that it has accomplished
many things, among the most important of which have been ihe
following:
•J.L. Brierly, The Outlook for International Law, pp. 1-11.

(a) The community of "sovereign" States still exists;

their continued survival would have been impossible had not
the rules of Public International Law put them in their proper
places;
(b) Communism, not only has been held in check, it
has, in fact, debilitated, as what transpired in Eastern Europe;
while crises have continually arisen, it is clear that many of
them have already subsided. Each international crisis could
have erupted into worldwide wars; so far history has witnessed
only two (some of these conflicts include the war between
North and South V i e t n a m , the continuing conflict in
Kampuchea between the Vietnamese invaders and Cambodia;
the internecine strife in Bosnia-Hercegovina.
(c) International trade, commerce, aviation, communi-

cation, and transportation continue to flourish; international
cooperation has tried to minimize the danger from disease;
international resources have been pooled together and have
resulted in tremendous technological advances.
Obviously, many problems remain unsolved. For instance,
international faith and trust exist merely on paper and in vocal
utterances; the United Nations Organization has not been able to
prevent many regional wars and sectional clashes of violence; racial
discrimination resulting in "apartheid" — (the setting apart of the
"whites" from the "non-whites") subsists (in some political commu-
nities, however, has waned;) economic underdevelopment contin-
ues to be a major irritant in many territories; it is doubtful whether
effective sanctions may be enforced against a delinquent major
State without risking another (and perhaps, the final) world war.
As has been well said, after the next world conflagration, the
question "will not be what is right, but what is left."
The Third Question

If success has not been overwhelmingly evident, what is the
remedy for international problems? We venture again to distin-
guish our answer:
(a) for the present — a peaceful co-existence between
the democratic and the communistic ways of life would seem
to be the solution (the joint American and Russian flights in
outer space, the projected summit conference between Presi-
dent Bill Clinton of the U.S. and President Boris Yeltsin of
Russia are classic examples of West-East cooperation);
(b) in the far, far, far future — a World State, with a

World Government (complete perhaps, with a President of
the World, a Congress of the World, and a Supreme Court of
the World), as distinguished from the present United Nations
Organization (where the member-States consider themselves
sovereign, and where there is offhandedly basal international
police power), would clearly be the inevitable imperative.
For the Present —

We are obviously in the midst of an enfeebling Cold War
albeit the posturings of many that we are now living in the post-
Cold War era (of ideological principles, as distinguished from the
"hot war" of flaming missiles and bloody violence): the situation,
while admittedly placing the world now and then in a state of
tension, is nonetheless, preferable to one of actual worldwide con-
flict. So long as the diplomats and sovereigns of the world continue
Lo talk (in "summit conferences" among heads of States, in in-
ternational congresses, in the halls of the International Court of
Justice, in the columns of newspapers, journals and magazines),
there is no danger of actual war. Faithful adherence to the prin-
ciples of International Law and of the United Nations Charter will
be adequate in the meantime: in this way, the running ideological
civil war between the equalitarian theory of Russia and the liber-
tarian theory of America and England will continue to remain a
battle of words. The repeal of the V E T O P O W E R in the Security
Council can serve no useful end: Russia has repeatedly expressed
her desire to get out of the United Nations Organization the moment
the "veto" is abolished; when this occurs, conversations on peace
will have lost an iniquitous forum. It is, therefore, believed that
"peaceful co-existence" would seem to be the solution. How then
can this status quo, this "peaceful co-existence," be maintained? In
his book "Containment or Liberation," James Burnham states thai
"For the United States, foreign policy means policy toward world
communism and the Soviet Union. The range of choice is restricted
to three possibilities: appeasement, containment, liberation." Ap-
peasement in effect means that the United States should be ready
to give in to whatever demands Russia might make; containment
means that America should see to it that Communism is "con-
fined" (or "contained") within the present borders of Russia and her
satellites (i.e., Russia, must not be allowed to expand her territo-
ries; liberation means that the United States should resolve to
liberate or free the nations that have fallen within the Soviet empire
— nations which "chafe under the oppression of their masters."
Appeasement cannot achieve a peaceful co-existence: it can-

not only mean the eventual superiority of Communism; for if our
efforts at appeasement be incessant, one day we Bhall wake up to
find that we no longer can appease, for we shall have ceased to
exist.
Containment was initiated by George Keenan in his article
5
T h e SourceB of Soviet Conduct"* and expanded in a second article
86
"American and the Russian Future." Under the policy of con-
tainment, Russia would not be allowed to expand beyond its (and
those of its present satellites') territorial boundaries. However, the
policy contains no offensive strategy; in fact, it deliberately excludes
all offensive plans. Instead, it insists on international economic
strength so that the "masters of the Kremlin may be persuaded to
desert the errors of their ways."
Liberation, upon the other hand, would necessarily involve

the use of force. According to Burnham, the policy of liberation
should be announced to the people behind the Iron Curtain and to
the rest of the world: in this way, the risks of a general war would
be minimized. He says: "Are we ready to declare that Western
civilization is superior — objectively superior — to Soviet totali-
tarianism? Do we as Americans proclaim that political freedom
and representative government are better than political tyranny
and the sovereignty of the secret police, better for all men, Poles
and Chinese and Russians as well as French and English and
Americans? Our ancestors did not doubt the universality of their
political ideal, nor did they hesitate to speak and act according to
its light. The Declaration of Independence did not confine its truths
67
to the three-mile limit."
In the far, far, far future

In the far, far, far future problems of international law will
cease to exist when we shall have a World State with a World
Government (complete perhaps, with a President of the World, a
Congress of the World, and a Supreme Court of the World). This
is not an impossible dream. Today we have independent, equal,
and "sovereign" States, but this has not always been so. A long
"*Jiily, 1947, issue of the magazine Foreign Affairs.

** April, 1951, ieaue of the same magazine.
"'Burnham, Containment or Liberation, pp. 248-249.
time ago, there merely existed independent families, each of which

did not concern itself with the affairs of the others; the families
grew into independent tribes, each with its own ceremonial rituals
and customs; the tribeB grew into small political communities —
towns, municipalities, cities; the cities w e r e jealous of each other's
independence and so there arose the city-States; today, we have
the modern national States — sometime in the future, entire races
may form federations; governments may be by Continents in the
6
far, far, far future the World State may emerge. "
No one seriously doubts the possibility of a World State and
a World Government; the debatable proposition is on how they
may be brought about. On the desire for them, Professor Frederick
H. Hartmann of the University of Florida has this to say:
"In the name of peace, men have fought many wars
designed to preserve or enhance national security. Until World
War I, the balance-of-power principle was the main reliance
of the great powers to preserve their security. Its failure to
avert war in 1914 led the Western World after the war to
attempt (although without the participation of the United
States) a new method — collective security. For this purpose,
they established the League of Nations. Despite the failure of
the League to avert war in 1939, the UN w a s established in
1945 as an improved version of the same principles; this time
with the United States playing a leading role. Since the UN
resembled the League, which had been a failure, and since
the balance of power was equally distrusted as a preserver of
peace, many, during and after World War I I , began to advo-
cate a new principle altogether — world government. In this
w a y , many believed that the prophecy of Isaiah eight centu-
ries before Christ might be fulfilled a n d war would disappear
69
from the [face of the] earth."
Various theories have been elaborated on how a World State

a n d a World Government may be formed:
(1) the respective national StateB must renounce their re-
spective "sovereignties," and m e e t in a constitutional convention
to draft t h e "Constitution of t h e World";
(2) since t h e concept of a World State is necessarily
predicated on t h e existence of a "world community" (as distin-
M
S e e Emery Reves. The Anatomy of Peace. (1945).
^Hartmann, Readings in International Relations, p. 213.
guished from a "national community" or a "local community"), the

basic "social tissues'* for such world community must first be
strengthened:
(a) the economic tissue — there ought to be greater
economic interdependence accompanied by a lessening dis-
parity in the economic strength of the various nations;
(b) the psychological tissue — the fear of a common foe
can act as the "cement of cohesion;"
(c) the moral tissue — "enlightened men in all nations
have some sense of obligation to their fellowmen, beyond the
70
limits of their nationality."
(3) to attain world unity, peaceful means must first be
availed of; in case of failure, war and conquest can unify the world
(example: if America with her aliens can conquer Russia and her
allies, world government can begin to exist).
As Emery Reves forcefully states:
"To put it bluntly, the meaning of the crisis of the
twentieth century is that this planet must to some degree be
brought under unified control. Our task, our duty, is to attempt
to institute this unified control in a democratic way by first
proclaiming its principles, and to achieve it by persuasion,
and with the least possible bloodshed. If we fail to accomplish
this, we can be certain that the iron law of history will compel
us to wage more and more wars, with more and more pow-
erful weapons, against more and more powerful groups, until
71
unified control is finally attained thru conquest."
On the proposition that a constitutional convention be called

for the purpose of drafting the "Constitution of the World," Reves
says:
"Nothing is more futile than to work out detailed plans
and prepare drafts for a constitutional document of a world
government. It would be a simple matter for a competent
individual or a group of people to sit down and work out
scores of plans in all detail and in all variety. Within a few
days one could produce twenty constitutional drafts, each
;o
S e e Reinhold Niebuhr, "The 111 uaion of World Government." Foreign
Affairs, Vol.. 27, No. 3. April. 1949, pp. 379-388.
7
'Emery Reves, open., pp. 253-270.
completely different from the others, each equally plausible.

Such a procedure would only hinder progress. Nothing is more
open to criticism than a constitution, unless it be the draft of
a constitution. If at the very inception of democracy, before
the democratic nation-States had been created in the eight-
eenth century, a specific draft of a democratic constitution
had been identified with democracy itself, and put forward
for general approval and acceptance, we should never have
had a democratic nation-State anywhere in the world. His-
tory does not work that way. The founders of democracy were
much wiser and more political. They first formulated a small
number of fundamental principles regarded as self-evident
and basic for a democratic society. These principles succeeded
in arousing the vision and flaming the enthusiasm of the
people who on the basis of these fundamental principles,
empowered their representatives to translate them into real-
ity and create the machinery necessary for a permanent legal
order, representing the triumph of these principles. The con-
stitution, the fundamental law of the new democratic order
[is] debated after, not before the acceptance of the elementary
principles and the mandate given by the people to their rep-
resentatives for the realization of those principles. So today
we see democracy expressed in systems of great variety in
detail but nonetheless, deriving from identical principles. . .
Regarding the creation of universal democratic order, we have
not yet reached the stage of conception. We have not yet
formulated the principles. We have not yet set the standards.
To put the problem before national governments would be a
hopeless enterprise, doomed to failure before even starting.
The representatives of the sovereign nation-States are inca-
pable or acting and thinking otherwise than according to their
nation-centric conceptions. As such a universal problem can-
not be solved along national lines, certainly and naturally
they would destroy any plan, any draft of a universal legal
72
order."
A POST-COLD WAR ERA

As earlier adverted to, most political analysts are of the opinion
that we are now living in a period popularly known as the post-
Ti
lbid
Cold War era. Why is this so? Indeed, how is "international law"
perceived today?
Tradition defines "international law" as the body of rules
governing the relations between and among States. Owing, how-
ever, to the advent of new doctrinal principles and legal concepts,
international law has reached a point where it now interlinks with
world politics. Director R.G. Feltham of Oxford University in his
"Diplomatic Handbook" (1988 ed.) put it in succinct terms: "[SJince
the rapid evolution of the concepts of social and interstate respon-
sibilities resulting from post-war factors and events (e.g., the
creation of new States and increased involvement of the individual)
and reflected in the development of the U N , [international law has
now reached a new zenith."]
According to R.G. Feltham, "although international law is

the subject of much debate and opposing viewpoints" [e.g., "Is
international law a true law?"] "there are certain areas of almost
complete agreement (e.g., piracy on the high seas and the
immunities of diplomatic agents), is just at the other end of the
spectrum [and where] there are areas of considerable disagree-
ment." It cannot be claimed, avers Feltham, that international law
is a subject merely for academic lawyers. International law, he
argues, is a "contradiction in terms," i.e., something of a paradox,
attracting both disciples and skeptics.
Internationa] law is a paradox for those who, with mission-

ary zeal, see it as the path to world peace and righteousness vis-
a-vis those who maintain that without international sanctions,
there can be no international law. Thus, in Feltham's analysis of
the situation, the aforementioned views are to some extent valid.
He intones that international law's relevance in diplomatic rela-
tions lies in the fact that "considerations of said law do influence
governments and provide standards of international behavior which
they acknowledge as being the ideal, even though they may not
always manage to live up to them." In Feltham's thinking, inter-
national law, like all good causes, "is liable to [be I the subject of
evil designs." He cites the fact that politicians the world over are
not slow to invoke and if necessary distort the principles of in-
ternational law in order to suit their (politicians'* purposes, or to
disclaim them if they should prove to be embarrassing. The
bottomline is: International law is a subject that diplomats must
be acquainted with, but must handle with care.
Inasmuch as the general picture currently prevailing in the

international law scenario encompasses a wide array of diplomatic,
consular, legal, and economic terms, e.g., rebus sic stantibus, pacta
sunt servanda, pari passu, volte face, tranche, conditionalities, etc.),
a wider definition of the term "international law," has become a
"felt need."
J.G. Starke's definition of the term as contained in his In-
troduction to International Law is apropos: "International law may
be defined as that body of law which is composed for its greater
part of the principles and rules of conduct which States feel them-
selves bound to observe, and therefore, do commonly observe in
their relations with each other, and which include also: (a) the
rules of law relating to the functioning of international institu-
tions or organization, their relations with each other, and their
relations with States and individuals; and (b) certain rules of law
relating to individuals and non-State entities so far as the rights
or duties of such individuals and non-States entities are the concern
of the international community."
Truly, this is a wonderful world of changes in ideas and ide-
ologies. In boycotts and other economic sanctions, and the rise of
"people power," successful or otherwise, in recent years and to the
surprise of many in the Western world, the Berlin Wall, symbol of
the continuing war of democracy against communism, was torn
apart, stone by stone, pillar upon pillar, the tolerated "rush" of
East Germans to West Germany, unrestrained by any superior
force, was soon followed by democratic uprisings in countries in-
side the Iron Curtain, namely: Czechoslovakia, Rumania, Hun-
gary, Bulgaria, Poland, Yugoslavia, and the Union of Soviet So-
cialist Republics itself.
"People power" found worldwide recognition in the Philip-
pines during the now famous EDSA revolution of 1986. Various
other countries soon followed but many mass demonstrations re-
sulted and ended in dismal failures, the last grand spectacle being
that on Tiananmen Square in Beijing. However, the failure in
Beijing alerted millions of Red Chinese to the inherent defects of
their way of life.
Today, therefore, the grumble of the masses in China and in

the former Soviet Union (now a loosely-held Commonwealth of
Independent States) flow with ever alarming intensity, alarming,
i.e., to the Marxist-Lennist and Maoist modes of existence.
On the grim side, silently, many have died — in dusty So-

malia. By early 1993, at least 400,000 have perished because of
starvation in this East African land. Invisibly, in blood-soaked
Bosnia's "cleansed" towns. The Republic of Bosnia-Hercegovina, a
patchwork of people, broke away from Yugoslavia, followed by
ferocious ethnic warfare. The armed Serbian minority drove
Bosnia's Muslim majority from countless towns, killing thousands.
They called it "Ethnic cleansing." Loyalist Muslims and Croats
were brutal as well. Appealing for U.S. help, the Muslim president
of Bosnia-Hercegovina, in battered Saravejo, pleaded. He still
waits.
In the blood feuds of a crumbled Soviet Union (take the case

of the beleaguered Boris Yeltsin versus the hardliners), many have
met death uselessly owing to ethnic crusades unreeling in kalei-
doscopic confusion. Armenians battle Azerbaijans, Georgians fight
South Ossetians and Abkhazians, North Ossetians Tight Ingush,
Moldovans stare down Russians, and Tajik clan takes on Tajik
clan, etc. In Germany, it is neo-Nazis who attack foreign refugees.
New hope remains. The Arabs and Israelis talked on and on

about peace, and whites and blacks aim toward multiracial de-
mocracy. Notwithstanding, the global populace was entertained by
way of diversions — both titillating and terrifying. The British
royal family experienced what Queen Elizabeth II dubbed an annus
horribilis — a harrowing period of marital woe that kept tabloid
readers interested albeit dismayed. A Russian, Chikatilo, labelled
the "worst murderer" of contemporary times, was sentenced to
death for the cannibalistic sex killings of 52 women and children.
Generally, the subject of international law confines itself to:

general principles, States as subjects of international law, jurisdic-
tion and jurisdictional immunities, treatment of aliens, territory
(land, air, outer space, and telecommunications), law of the sea,
treaties, settlement of disputes, laws of war and neutrality, and
the UN organization. Nonetheless, in the search for a "new world
order," expanded areas necessitate inclusion in the otherwise
traditional domain(s) of international law. These are individuals
and human rights, environmental law, a study of military alliances,
international economic, trade, and financial [monetary] laws, in-
cluding international taxation. Since the guiding philosophy behind
international trade is free flow of goods and services, it goes with-
out saying that the principal objective of international taxation is
to see thru this ideal by way of feasible taxation arrangements
which recognize each country's sovereignty in the matter of taxation,

the need for revenue, and the attainment of certain policy objec-
tives.
Public international law, as it should be viewed, is geared toward
the 21st century complex of economic and financial modalities against
the backdrop of aggressive State sovereignty, notwithstanding the
harrowing experience the civilized world suffered recently in the futile
Persian Gulf crisis of 1991. Thus, we have the international debt
problem as an instrinsic part of a State's foreign policy; debt reduction
has become the stabilizing factor in the continuing saga of the Third
World States; the onset of the New International Economic Order
(NIEO) has given impetus to n e w parameters in complex financial
transactions; the problem of international taxation vis-a-vis multi-
national enterprises; new dimensions in international trade law and
transborder relationships.
In fine, it will not be surprising for us to be confronted with

a one-world currency, replete with state mergers akin to the current
global thinking on regional trading blocs, economic diplomacy,
leveraged buyouts (LBO's), take-overs, and acquisitions, of the
world's corporate raiders.
STATE OF INTERNATIONAL LAW

Dr. Manfred Lachs, a former President of the International
Court of Justice, has this to say on the "present" state of inter-
national law, as published by the American Journal of Interna-
tional Law ("Views from the Bench," October 1992, Vol. 86, No. 4),
thus:
"During the last two decades, we have frequently heard
about a crisis in t h e kingdom of international law. Without
engaging in semantics, one can understand the word crisis in
its normal dictionary meaning as a turning point in the
progress of anything; more, a state of affairs in which a
decisive change for better or worse is imminent. However,
these connotations are not necessarily present in the minds
of those who apply the term to international law. They intend
rather to refer to t h e weakness to which it is condemned to
its subordinate role and fragile existence; even international
lawyers may speak or its ambiguity. In some instances, they
point to the prevalence of a Bense that resort to legal argu-
ments by policy-makers may be detrimental to world order
and thereby counter-productive for the State that uses such

arguments. Thus, a picture of gloom is painted and the world
almost consigned to lawlessness in international relations.
Similar, even stronger expressions of dubiety emanate from
politicians and statesmen. To recall the words of a distin-
guished representative of the field: 'Much of what is called
international law is a body of ethical distillation, and one
must take care not to confuse this distillation with law.' Many
scholars and practitioners underscore the point that interna-
tional law is violated with scandalous frequency and proves
ineffective whenever its operation is essential. The number of
such opinions itself is a significant phenomenon that calls for
serious reflection. Jurists have become wont to refer to our
days as a time of perplexity.
"But is it true that we are living thru the tragedy of

contemporary international law? According to Stanley
Hoffman, 'the tragedy of contemporary international law i[s]
that of a double divorce: first, between the old liberal dream
of a world rule of law, and the realities of an international
system of multiple mini-dramas that always threaten to be-
come major catastrophies; second, between the old dream and
the new requirements of moderation.'
"Yet, notwithstanding great [scientific and technologi-

cal] progress — one can say that at no state of history have
so many chapters of international law been codified and cus-
tomary law covered so much ground: since World War I I ,
33,947 agreements have been registered and deposited with
the United Nations ( U N ) , i.e., from December 1946 to May
30, 1989; international law has been unable to meet all the
challenges and accommodate the needs of the international
community. It has remained very much behind the times.
This is due to serious conflicts of interest and changes fre-
quently resulting from speedy technological developments.
Almost all chapters of the law are involved; some illustra-
tions of recent events may suffice. The five freedoms of the
air failed to be generally accepted; they have been adopted in
bilateral agreements. A new hypersonic vehicle travelling in
the air and space requires corresponding legal regulations.
Problems arise with regard to noisy aircraft. Armed attacks
against airplanes accidentally crossing frontiers and air hi-
jacking constitute a threat. Moreover, implementation of the
law of the sea encounters serious difficulties and the law of
outer space is highly inadequate. More specific rules are re-

quired on data transmission and implementation of the concept
of the common heritage of mankind. The commercialization
of outer space activities raises new legal issues. Space debris,
a by-product of space activities, seriously endangers all space
activities. Parts of space objects, such as payloads, controllable
fragments and boosters that continue to travel, may damage
newly launched satellites. Thus, not long ago, two missions of
the US. space shuttle had to alter their path to avoid collision
with derelict parts of space objects. A general agreement on
the duty to remove them and liability for damage is urgently
needed. Similarly current provisions on remote sensing do
not adequate protect the interests of the States concerned
and more precision is required. The provision on consultation
with a State whose territory is sensed in order to make
available opportunities for participation and enhance the
mutual benefits to be derived therefrom seems inadequate.
(GA Res. 41/65.)
"In addition, important progress is required in interna-

tional economic relations so as to bridge the gap between the
North and South created by the rapid [growth) in science and
technology [which] has created common interests and mul-
tiplied common action, and which has become imperative. It
has had a crucial impact on macroeconomic and geopolitical
factors such as shifts in interstate relations. It is reflected in
investment trends, the operation of the OECD and G A T T ,
and the development of the European Communities and ex-
Communist and developing countries."
NEW FORCES IN INTERNATIONAL RELATIONS
If, as has been aptly said, the dynamics of the human mind
are notoriously intricate, those of political States are even more
defiantly so. Sovereign leaders, both of the West and East, aided
by their subordinates in the diplomatic service, issue challenges
only to beat hasty retreats; heady with wine, they smile at one
another in summit conferences, yet, the moment they reach their
own backyards, the world of illusion dissolves into their own cruel
world of fact; intrigue begins to set in, and the air is rent with
cries of pernicious hypocrisy. Hence, we are indeed in the vortex
of a rapid deteriorating world caught in the grip of its own man-
made tension.
Keen articulation was made manifest by the late United

Nations Security Council President Carlos P. Romulo when he
assayed the grim realization that the evils of rampant protectionism
threaten the world economic order, threatening most of all the
developing countries whose developmental efforts are bound "un-
less arrested by wise global measures to slide precipitously into
the old morass of incurable poverty."
The symphonic symphony of warnings even has elaborate

seasonal variations. The alignments and antagonisms of the recent
past are shifting ground and structures premised on their stability
appear to be crumbling. Even the bedrock of the international
system, the sovereignty of nation-States, is subject to severe erosion.
In the 70's and 80's, simply to portray instabilities in world politics,
would be to recount the obvious. For the 90's, the logical attempt
is to seek the underlying causes, to speculate on their force and
how they could alter the political and institutional landscape, and,
to acupuncture how foreign policies could scale economies or
discombobulate the eventual emergence of alternative patterns of
world politics. A classic example of this kind of reasoning, i.e., the
U.S. move in boycotting the 1980 Moscow Olympics, only proved
that it was vengeful and jingoistic. The trend as it is becomes a
reduction of the idea of sports to the level of the ridiculous. With
every Olympiad, the Games seem to drift farther into their own
distorted wonderland. Look at what Hitler did in his Berlin 1936
Olympics: he legitimized a charade!
Given the mushiness of international life, new forces in in-

ternational relations are now being brought about by the post-
Cold War era — a period of unusually stable expectations regarding
the identity of friends and adversaries — expectations that pro-
foundly influenced the day-to-day diplomacy of military affairs,
trade and investment, development assistance, and international
institutions. Recall that the power conflict between the United
States and the former Soviet Union was implicit in the structure
or the post-Cold War world in that the only grave potential threat
to the security of one stemmed from the existence of the other.
Completely aside from the ideological issue, no other single nation
or even group of nations in the immediate Cold War years was in
a position to constitute a serious threat to either of them. In this
light, thus, foreign policy analysis could reasonably be concentrated
on precise evaluations of Bpecific policy options.
With the advent of post-Cold War attitudes, expectations

underlying inherited policies and institutions, seem to be dissolv-

ing. An attempt to discern emerging patterns in the current of
contemporary world politics is necessarily speculative, yet in-
formed speculation is perhaps most important — and most diffi-
cult — when traditional patterns appear to be breaking down.
WORLD POLITICS
With an impending third world war always lurking danger-

ously in our midst, it is best that we understand the real meaning
of world politics.
Michael Curtis, professor of political science at Rutgers Uni-
versity, in the introduction of his book The Nature of Politics,
wrote:
"Politics is organized conflict about the use of public

power — the conflict is between two classes of politicians, the
appointed and the disappointed. The political world, as much
as any other, is often sordid, full of chicanery and machination.
If politics is the story of the ambitious and the self-seeker, it
is also the story of convictions and of principles, and the
attempt to put them into practice. [For] [t|he essence of politics
is power, the struggle to obtain and to maintain it, and the
use made of it. Indeed, for some, politics becomes the study
of influence and the influential.
"Students of politics, therefore, necessarily examine the

goals proposed; power is always, as Laski argued, an essay in
the conditional mood. When activity is regarded as harmful
to the welfare of a community, as with Iceland's discovery
that foreign fishing reduces its own food supply, the previously
accepted rule about the territorial limits of nations is broken.
"Control over power is essential for civilized and humane

existence. There are no profound political axioms than that
only he who wears the shoe knows where it pinches, that it
is the diner, not the cook, who is the best judge of a feast.
This implies the responsibility of the ruler. Politics deals with
both the contingent and the unknown. Political solutions are
temporary at best, irrelevant at worst. All politics is, as de
Maistre called history, experimental politics. But, as the
experience of the highly educated Germans showed in the
Nazi era, education is not automatically synonymous with
political wisdom. Few today would argue that the diffusion of

knowledge automatically produces the progress of humanity,
or provides a guide to political action. Yet, even in the face
of ignorance and uncertainty, decisions must still be made.
Politics is drama, rather than tragedy moving toward an
inexorable fate. To argue that human actions are determined
means political acceptance or quiesence. The wisdom of the
past is still appropriate: 'He that considereth the wind shall
not sow/And he that looketh to the clouds shall not reap.'
Actions, decisions and the wielding of power are the stuff of
politics. But political action is necessarily discriminatory, since
people will be affected unequally by it. Even if there is no
felicific calculus by which the greatest happiness of the great-
est number can be mathematically obtained, some calcula-
tion is always made of the intended effect of action and de-
gree of satisfaction that it will bring. The attempt to produce
maximum satisfaction makes politics the art of compromise.
The conciliation of contending forces in society is a prime
requirement of political success.
"The nature of politics depends on a multitude of fac-

tors: not only on the political and social institutions, but on
the personalities involved, the arena or political interest, the
scope of political concern. It may have been George II's belief
that politics was a trade for a rascal, not for a gentleman,
that helped lose what was then and what might still have
been the mo6t promising of the British colonies. The interest
of the citizen body is another relevant political factor. The
French have a saying: 'Qui s' excuse, s' accuse.' Perhaps it is
worth considering whether those who refuse to take sides in
political contests should not be dishonored and disfranchised.
The subject matter of politics is both timeless and contem-
porary; the arena in which politics is staged is one that con-
tinually changes. Political struggles have always been waged
between the forces or order and movement, reformism and
conservatism, between those who stress rights and those who
stress duties.
"Political injury never quite catches up with contempo-

rary life. New problems abound — the greater pace of change,
the introduction of automation, the development of new forms
of energy, the expansion both of government activity and of
executive power, the increasing role of the military in both
economic and political life, continuing monetary inflation, the
expanding urbanization, the relative decline of industrial

productivity in the U.S. compared with other nations, the
growing social emancipation of women, the hungry demand
for higher education, the question of cultural standards —
these and many more problems have entered the political
field. Not only are there additional political problems — the
problems are also more complicated. The problem of loyalty
and of political obligation becomes confusing in a world of
atomic spies and international civil servants. The fundamen-
tal question about the essence of democracy becomes compli-
cated in an age when totalitarian and dictatorial regimes
have received .enthusiastic mass support and approval.
Moreover, the mood of politics today is basically interna-
tionalist or transnationalist, rather than isolationist. There
is increasing recognition that national purposes are also in-
ternational purposes, and that there is a close interrelationship
between internal and external policy. The welfare of the U.S.
chicken farmer is interrelated with the U.S. attitude toward
the European Common Market. Since the beginning of the
Cold War, the major battle, which has reacted in a variety of
ways on national affairs, has been an international one: be-
tween 'the forces of dialogue and those of terror,' as Albert
Camus put it.
"Politics has been extended in another way — geo-

graphically — due to the remarkable speed with which former
colonies in Africa and Asia have in the last [few] decade|s|
emerged to independence. With this rise of a host of peoples
to Statehood has come the 'revolution of rising expectations,'
probably the most compelling factor in politics today. Strong
controls may be expected for the initial accumulation of capi-
tal and for economic development. Socialist in economic at-
titude, neutral in foreign relations.and, often dictatorial in
political behavior, these countries have produced dilemnas as
well as fascination for the West. Over a hundred years ago,
de Tocqueville argued that 'a new science of politics is needed
for a new world.' The argument is still valid, but the new
world is now the whole world."
In line with this is the argument propounded by N.J. Spykman

in his book The Geography of the Peace, thus: "Although the spe-
cial objective in war is the incomplete destruction of a particular
enemy, in both peace muBt be world geography. In a period of
global welfare, military strategy muBt consider the whole world as
a unit and must think of all fronts in their relations with each
other. In the search for global peace and security, the unit area for
analysis must be co-extensive with the surface of the earth. In any
case, the objectives of peace and security for a State and for the
world as a whole must inspire the final choice of policy to the
exclusion of such aims as expansion and aggrandizement of power."
DEMOCRACY BANNED IN EASTERN

EUROPE FOR OVER 40 YEARS
From 1945 (the end of World War II) until the early 1990's,
democracy was banned in Eastern Europe, comprised of Bulgaria,
Czechoslovakia, Romania, Hungary and Poland. Ruled and domi-
nated by the Communist Party, largely under the Soviet Union's
control, 1989 marked the year Soviet control was lifted with the
collapse of the Communist regimes and the advent of democracy.
(See Simon Goodenough, 7500 Fascinating Facts [London: Dean,
1992], p. 46.)
THE COMMONWEALTH OF INDEPENDENT STATES

The collapse of the central Communist power in the Union of
Soviet Socialist Republics (USSR) in 1991 gave four of the repub-
lics no choice but to leave the Union and become independent,
namely: Estonia, Georgia, Latvia, and Lithuania. The remaining
11 republics then formed a loose confederation known as the Com-
monwealth of Independent States (CIS): They are Russia (the
largest), Ukraine, Belorussia, Armenia, Azerbaijan, Kazakhstan,
Kirghizia, Moldavia, Tadjikistan, Turkmenistan, and Uzbekistan.
Note, however, that these individual States are predominantly in
control of their own affairs and only cooperate on major issues.
iSee Goodenough, supra, p. 46.)
NEW INTERNATIONAL ECONOMIC ORDER

It has become evident that there is an urgent need to estab-
lish a new system of international economic relations based on the
common interest of all States, whether rich or poor.
The consensus is that it is clearly the task of the UN system
to provide the instrument for the realization of this goal. (Jorge R.
Coquia, "Significant Aspects of the New International Economic
Order in the New Law of the Sea," The Phil. Yearbook of Inter-
national Law, Vol. V I I I , 1981, p. 50).
The 7th Special Session of the UN General Assembly marked

the turning point in the history of international economic coopera-
tion and in the history of the UN itself.
On May 1, 1974, the General Assembly passed Resolution
3201 (S-VI) entitled "The Declaration on the Establishment of the
New International Economic Order" and"3202 (S-VI) on T h e Dec-
laration and the Program of Action of the New International
Economic Order."
Identifiable, thus, by an examination of the Declaration to-
gether with the Charter are the following broad areas:
1. Permanent Sovereignty over Natural Resources (NIEO
Declaration);
2. Regulation of Foreign Investment;
3. Regulation and Supervision of Transnational Corpora-
tions;
4. Nationalization of Foreign Property and Compensation;
5. International Trade;
6. Transfer of Technology;
7. International Financial and Monetary Institutions, in
particular their procedures on decision-making; and
6. International Sea-Bed — in particular, the exploration
and exploitation of the resources of the sea-bed and ocean floor
beyond the limits of national jurisdiction, on the basis that these
resources constitute the common heritage of mankind.
In fine, the establishment of a New International Economic

Order bristles with complex legal issues, call|ingj for analysis,
innovation, and ingenuity in devising legal instruments and legal
mechanism at international, regional and national levels. It re-
quires an imaginative application of legal techniques — al) of which
presents an exciting challenge to legal creativity. (Kamal Hossain,
"The Role of Law and Lawyers in the Building of the New Inter-
national Economic Order: A Challenge to Legal Creativity," Phil..
Yearbook of International Law, Vol. V I I , 1981, p. 107).
There are, in fact, a number of international efforts geared

toward alleviating the disequilibrium existing between developed
and developing countries.
Harvard-educated Dr. Augusts Caesar Espiritu (former Phil,

envoy to Germany) cites several emerging international obliga-
tions, namely:
1. the United Nations Code of Conduct on Transnational
Corporations. This is but one of the activities of the inter-govern-
mental organizations to reconcile the competing interests of capital
exporting and importing countries.
2. the United Nations Charter.
3. the Charter of Economic Rights and Duties of States.
Both nos. 2 and 3 contain influences already manifest in the eco-
nomic relations of nations, including that of international invest-
ments.
4. the proposed Code of Conduct on the Transfer of Tech-
nology. Ongoing discussions are being made anent this proposed
Code.
5. the Paris Convention for the Protection of Individual
Property. It is now undergoing a revision.
6. the emerging new frontiers in:
a. patenting oF property;
b. plant breeders' rights; and
c. bio-technology.
As correctly assessed by Dr. Espiritu, these influences "have
changed the conception under traditional international law that
Lhe degree of development reached by a given State is a matter
regarded as generally within its domestic jurisdiction." ( A . Caesar
Espiritu, "The New International Economic Order and the Emerg-
ing International Obligations in International Investments," The
Philippine Yearbook of International Law, Vol. X I , 1985, p. 46).
A NEW WORLD ORDER?

American President George Bush once said of the 1991 Per-
sian Gulf War: It was about: more than one small country; peaceful
settlement of disputes; solidarity against aggression; reduced and
controlled arsenals; just treatment of all peoples. More importantly.
Bush talked of the Gulf War as the inkling of a "new world order"
with new ways of working with other nations. However, not long
after, the flow of the White House words about a new world order
slowed to a trickle.
For all intents and purposes, the term "world order* is used
in conjunction with the emerging world politics. Thus, two (2)
modalities of looking at a "new world order" are thru the approaches
made by (1) Realists and (2) Liberals. "Realists," in the tradition
of Richard Nixon and Henry Kissinger, see international politics
occurring among sovereign States balancing each other's power.
World order is the product of a stable distribution of power among
the major States. "Liberals," in the mold of Woodrow Wilson
and Jimmy Carter, look at relations among people as well as
States. They see order arising from broad values like democracy
and human rights, as well as from international law and insti-
tutions as the United Nations. Bush, for his part, thought and
acted like Nixon, but borrowed the rhetoric of Wilson and Carter.
Both aspects of order are relevant to the world situation with the
then Bush administration failing to sort out the relations between
them.
Questions: Why not simply leave the task of maintaining world

order to the U.S.? Answer: This is quite a "mission impossible." If
the rest of the world is mired in chaos, and government are too
weak to deal with their parts of a transnational problem, the U.S.
government will not be able to solve such problems alone or in-
fluence them to reduce the damage done to Americans. No doubt,
the U.S., in realistic terms, will remain the world's largest power
well into the 21st century. Nonetheless, it wants to avoid the role
of a world policeman, and correctly at that. For Charles
Krauthammer, author of the The Unipolar Moment (1992), the Gulf
War marked the beginning of a Pax Americana in which the world
will acquiesce in a benign American hegemony. While the premise
is correct that the collapse of the Soviet Union left the world with
only one superpower, the hegemonic conclusion does not follow.
For one, the world economy is tripolar and had been since 30 years
ago. Europe, Japan, and the U.S. account for two-thirds of the
world's products, but here, in economics, at least, the U.S. cannot
exercise hegemony.
Because of the diffusion of power thru transnational interde-

pendence, hegemony is also unlikely. According to Harvard Center
for International Affairs Director Joseph S. Nye Jr. (also author or
Bound to Lead: The Changing Nature of American Power), at least
three (3) examples may be cited:
First, private actors in global markets constrain the way

interest rates can be used to manage the American economy.
Second, the transnational spread of technology increases the

destructive capacities of otherwise poor and weak States.
Third, a number of issues on the international agenda —
drug trade, A I D S , migration, global warming — have deep societal
roots in more than one country and flow across borders largely
outside of governmental control.
In Nye's opinion, since military means are not very effective
in coping with such problems, no great power, the U.S. included,
will be able to solve them alone. The world order, after the Cold
War, avers N y e (now U.S. President Clinton's intelligence adviser)
is sui generis, and in light of this, he says, "we overly constrain our
understanding by trying to force it into the procrustean bed of
traditional metaphors with their mechanical polarities." Adds he:
"Power is becoming more multi-dimensional, structures more com-
plex and States themselves more permeable. This added complex-
ity means that world order must rest on more than the traditional
military ba'.ince of power alone."
A ONE-WORLD CURRENCY?
To begin with, a question may be interposed about the present
currency system; IB it here to stay? — The answer to the first
question is that the present system, while it has become an inte-
gral part of international financial markets, its functions cannot
be expected to contribute to both private and public international
liquidity and to improve the level and the efficiency of its liquidity.
This becomes inevitable if the world moves toward financial au-
tarky.
Will the concept of a "one world currency" gain eventual
success?; is it practicable for all countries to have the new system?
The sole answer to the two questions must be distinguished. Gov-
ernments end businessmen are growing tired of floating exchange
rates. They may not be ready for a world currency, but that is the
way things are moving.
Under the present floating exchange system, international
business has become a game of musical chairs. While this does not
translate to a return to fixed exchange rates, there is need for
some mechanism that will give a clearer, more dependable picture
of the future value of money. There is talk that there is no alter-
native to the floating exchange rate system. Perhaps a range can
be set within which the yen, the D-mark, and the U.S. dollar can
be allowed to fluctuate. Something like that is now in effect in the

European Monetary System (EMS.)
The-feltr need to set up a communal body like the European
Community (EC) in Western Europe and in other economic spheres
is a short-term step toward a long-term aim of political unity Tor
its members. Should the long-term goal be reached, the estab-
lishment of a regional economic community or common market's
currency system (or of a central European or Asian bank, for in-
stance) would become entirely possible — eventually leading to a
Keynes-inspired world bank, and eliminating in the process, heavy
reliance on the U.S. dollar.
The European Community can hope to move towards a

common currency and single central bank by 1994. As the logical
last step in the EC's economic policy convergence, an international
treaty enshrining the two initiatives in law (i.e., a common currency
and a single central bank) must be worked out for its eventual
realization. Accordingly, the hold-up now, because of technical
problems, will probably be on the order of 8 months or so.
Although one may seriously doubt the emergence of a World

Currency, the debatable proposition, nonetheless, is on how such
probability may be brought about. On the desire for it, suffice it to
state that as the 21st century approaches, the natural forces that
are pushing the world towards economic integration will offer
governments a broad choice. They can go with the flow, or they
can build barricades. Preparing the way for the World Currency
will mean fewer pretended agreements on policy and more real
ones. It will mean allowing and then actively promoting the pri-
vate sector use of an international money alongside existing na-
tional monies. That would let people vote with their wallets for the
eventual move to full currency union.
The alternative — to preserve policy-making autonomy —

would involve a new proliferation of truly draconian controls on
trade and capital flows. This course offers governments a splendid
time. They could manage exchange movements, deploy monetary
and fiscal policy without inhibition, and tackle the resulting bursts
of inflation with prices and incomes policies. It is a growth-crip-
pling prospect. "Pencil in the World Currency for around 2018,
and welcome it when it comes," as the battlecry goes.
The World Currency would probably start as a cocktail of

national currencies, just as the Special Drawing Right (SDR) is
P R E L I M I N A R Y CONSIDERATIONS
today. A single, uniform world currency would, however, go be-

yond the SDR'e traditional role as an international monetary unit
(in fact, a form of international paper currency backed up by al-
most every free country in the world and acceptable as if it were
gold equal to fixed proportions limited to five major currencies
(i.e., U.S. dollar, British pound sterling, Swiss franc, German D-
mark, and Japanese yen.)
The ultimate question lies on how a World Currency may
materialize. Since the concept on the existence of a "world mon-
etary policy" (as distinguished from a "national monetary policy"),
the World Currency must not only be an international unit of
currency based on gold but also a World Currency zone imposing
Light constraints on national governments: (a) there would be no
such thing as a national monetary policy; (b) the World Currency
supply would be fixed by a new central bank, descended perhaps
from the IMF; (c) the world inflation rate — and hence, within
narrow margins, each national inflation rate — would be in its
charge; (d) each country could use taxes and public spending to
offset temporary falls in demand, but it would have to borrow
rather than print money to Finance its budget deficit; (e) with no
recourse to the inflation tax, governments and their creators would
be forced to judge their borrowing and lending plans more carefully
than they do today. These principles are governed by international
financial law, including the legal rules which regulate international
financial organizations and currency cooperation.
Finally, the respective national States must renounce their

respective "sovereignties," and meet in a monetary convention to
draft the "Currency of the World." Inasmuch as a universal eco-
nomic problem can be solved along national lines, certainly and
naturally, only with the presence of an international coordination
or economic policy would nation-States be able to build, nurture,
and muster any plan, any move towards the ultimate realization
of a truly one world currency.
— 0O0 —
Chapter 2
SOURCES OF PUBLIC
INTERNATIONAL LAW
INTRODUCTION
Different authorities give different sources of Public Interna-
tional Law. The most authoritative answer, however, seems to be
found in Art. 38 of the Statute of the International Court of Justice,
which enumerates the various rules applicable to the solution of
international disputes submitted to the Court.
Art. 38 of the Statute of the International Court of Justice

provides that:
"1. The Court, whose function is to decide in accordance
with International Law such disputes as are submitted to it, shall
apply:
(a) international conventions, whether general or par-
ticular, establishing rules expressly recognized by the con-
testing States;
Vb) international custom, as evidence of a general
practice accepted by law;
(c) the general principles of law recognized by civilized
nations;
(d) subject to the provisions of Art. 59 (which says:

'The decision of the Court has no binding force except between
the parties and in respect of thaL particular case'), judicial
decisions and teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the deter-
mination of rules of law.
66
SOURCES OF PUBLIC I N T E R N A T I O N A L LAW 67
"2. This provision shall not prejudice the power of the Court
to decide a case ex aequo et bono, if the parties agree thereto."
'Ex Aequo et Bono'

1
Z" This is the basis for a decision by an international tribunal
on the grounds of justice and fairness. Article 38 of the Statute of
the International Court of Justice cites ex'aequo et bono as an
alternate- means ofdecision-making in place of the normally em-
ployed legal ruleVof Treaties and custom. However, a case can be
decided ex aequo et bono only with the consent of both parties to
the dispute before the judicial body. (Bledsoe J^Boczek, The In-
ternational Law Dictionary, 1987 ed., p. 11.)
The International Court of Justice (ICJ) nor its predecessor,

the Permanent Court of International Justice (PCIJ), has not
been called upon to decide a case ex aequo et bono, although the
principle of equity has been applied, e.g., in the dispute between
the Netherlands and Belgium over the diversion of water from the
Meuse River, settled by the Permanent Court of International
Justice in 1937; also the North Sea Continental Shelf cases de-
cided by the ICJ in 1969. Ex aequo et bono has been resorted to
by international arbitral tribunals in the Cayuga Indians claim in
1926, the Guatemala-Honduras boundary issue in 1933, and the
Gram Chaco War between Bolivia and Paraguay in 1938. Its
relative lack of use reflects the reluctance of States to grant such
a sweeping authority to an international tribunal. (Ibid., p. 12).
It will be noticed that the Statute divides sources into two

Groups: the direct sources: and the indirect^secondary, or subsidi-
ary sources.
Direct Sources: .'

International conventions — (bipartite treaties as
such having binding force, and are considered law only insofar
as the parties thereto are concerned; e.g., the Philippine-
United States Tax Treaty has the force of international law
only between the Philippines and the United States).
• ( b ^ International customs (such as cabotage — the mo-
nopoly of a State in coastwise trade, shipping and navigation;
angary — the right of a belligerent State, in time of war, to
make use of the property of neutral States, located within the
territorial jurisdiction of the belligerent, upon payment of
reasonable and just compensation; the maritime zone — the

strip of water along the exterior coastline of a State within
which its jurisdiction may be exercised).
(NOTE:
International "practice" may be distinguished from interna-
tional "custom" in that the former suggests the formative process,
while the latter suggests that the process has beeircbmpteterf. In
other words, the former may be said to be the cause or evidence
of the act of creation, while the latter is the effect or result. In fact,
as Prof. D.P. O'Connell points out in hia "International Law" (Vol.
I, p. 9, 1965 Edition), "only when a tradition of acting is followed
under the conviction that it MUST be followed is it of significance^
a
^ ^ ^ ^ p ^ e ^ a ^ r n ^ ^ r ^ ^ c ^ b y a number of States in the
-
field of international relations
£b*T repetition of the practice over a considerable period
^ of time
conception that the practice is required by, or
consistent with, prevailing international law
^tdT^general acquiescence in the practice by other States.
(Hudson on Art. 24 of the Statute of the International Law
Commission). ].
*(3) The general principles ofjnw (e.g., prescription, resju-
djcata, resjnierjalios acta; pqctasiint servanda, lex specialis derogat
generali, conceptions of restitution, logical rules of proof, rules
against unjust enrichment, jurisdictional primacy of international
law over municipal law.). (See D.P. O'Vonnell, International Law,
Vol. I, p. 13).
Since these principles are universally adhered to, one may

logically conclude that they are deemed necessary for the mainte-
1
nance of justice. The principle of "prior exhaustion of national
_remedies" was applied by the international Court of Justice in the
Interhandel Case (between Switzerland and the United States!.'
'Brierly, The Law of Nations, p. 63.

SOURCES OP PUBLIC I N T E R N A T I O N A L L A W
Leovillo C. Atfustin v. Hon. Romeo F. Edu

L-49112, Feb. 2,1979
FACTS: Letter of Instruction No. 229 (1974), as amended
by Letter of Instruction No. 479 (1976), requires all motor
vehicles to have an early warning device (EWD). This was
issued by President Ferdinand E. Marcos to eliminate one of
the major causes of accidents — the presence of disabled,
stalled, or parked motor vehicles, without the proper signal
devices to warn motorists of their presence. The 1968 Vienna
Convention on Road Signs and Signals, ratified by the
Philippine Government under P.D. No. 207, recommended
the enactment of local legislation for the installation of road
safety signs and devices. Is the requirement valid?
HELD: (thru Mr. Justice, later to become Chief Jus-

tice, Enrique M. Fernando): The requirement is valid and
constitutional in the exercise of police power. Besides, the
aforesaid Vienna Convention is a generally accepted princi-
ple of international law which is part of the law of the land.
It is not for this country to repudiate a commitment to which
it has pledged its word. The concept of pacta sunt servanda
stands in the way of such an attitude, which is, moreover, at
war with the principle of international morality.
INDIRECT, SECONDARY, OR SUBSIDIARY SOURCES.

tff Decisions of international tribunals
(Generally, not those of municipal or national courts of jus-
tice; however, the decisions of these latter courts may be deemed
to be included under the general phrase "judicial decisions" because
although as such, they do not constitute a source of international
law, still, if various national tribunals throughout the world decide
identical or similar cases in invariably a more or less uniform
manlier, there is good ground to believe that there exists an "in-
3
ternational custom" on the matter. Moreover, be it noted that while
as such decisions of the Supreme Court of a particular country,
are not sources of international law, said decisions will, nonetheless,
3
be received with due respect (though of course, not as authority). "
'See Oppenheim-Laulerpacht, International Law, Vol. I, Sec. 19a.

'•Thirty Hogsheads of Sugar v. Boyle, Cranch. 141 (1916).
70 I N T E R N A T I O N A L LAW A N D WORLD POLITICS
fif Writings and teachings of the most highly qualified pub-

licists
(Insofar as these writers refer to Public International law as
it really is, and not how it ought to be, their writings may be said
to be secondary sources of the subject. )*
West Rand Central Gold M i n i n g

C o . L t d . v. T h e K i n g
2 R . B . 391 (195)
FACTS: Government officials or the Republic of South
Africa allegedly seized two parcels of gold owned by the West
Rand Central Gold Mining Company. Subsequently, the Re-
public was conquered by Great Britain and annexed to the
latter State. A suit was filed by the company against Great
Britain (actually against the King) to recover said parcels, on
the ground that Great Britain, as conqueror, had the duty
under international law to assume the obligations of the
conquered South African Republic (with respect to the par-
cels). Issue: Is there such a duty?
HELD: It is true that whichever has received the com-
mon consent of civilized nations must have received the as-
sent of Great Britain. But any doctrine so invoked, must be
one really accepted as binding among nations. Any interna-
tional law sought to be applied must, like anything else be
proved by satisfactory evidence, which must show either:
(1) tnat the particular proposition alleged has been

recognized and acted upon, by Great Britain; or
(2) that it is of such a nature, and has been so widely
and generally accepted, that it can hardly be supposed that
any civilized State would repudiate it.
The mere opinions of jurists, however, eminent or
learned, that it ought to be so recognized are not in them-
selves sufficient. They must have received the express sanction
of international agreement or gradually have grown to be
part of international law by their frequent practical recognition
in dealings between various nations. Inasmuch as in this
*See The Paquete Habana, 175 U.S. 687.

SOURCES OF PUBLIC I N T E R N A T I O N A L L A W 71
case the particular doctrine alleged has not been adequately

proved, judgment must be rendered in favor of the Crown,
i.e.. Great Britain is not bound by the obligations of the
Republic of South Africa.
T h e P a q u e t e Habana
175 U.S. 677 (1900)
FACTS: During the Spanish American War, two fishing
vessels (the Paquete Habana and the Lola), flying the
Spanish flag, and while regularly engaged in fishing on the
Cuban coast, were seized by the U.S. Navy. It was discovered
that until the moment of capture, the vessels did not know
that a war was being fought. It was also proved that the
vessels had neither arm6 nor ammunition; and that neither
ship attempted to run the blockade after its existence was
made known to them. In Florida, to which they had been
brought, they were considered by a U.S. District Court as
legitimate prizes of war. They then appealed to the U.S.,
Supreme Court alleging that under international law, and
considering the circumstances of their capture, they were
exempt (with their cargoes and crews) from capture as prizes
of war.
HELD: They are exempt from such capture because of

an international custom on the subject — a custom that began
in 1403 during the reign of King Henry IV of England, found
encouragement in a treaty entered into in 152L between fc
Emperor Charles V and Francis I of France, and approval in

American practices from the Declaration of American Inde-
pendence in 1776.
International law is part of our law, and must be ascer-

tained and administered by courts of justice of appropriate
jurisdiction. For this purpose, where there is no treaty and
no controlling executive or legislative act or judicial decision,
resort must be had to customs and usages of civilized nations;
and as evidence of these, to the works of jurists-, and com-
mentators who by years of labor, research, and experience
have made themselves peculiarly well acquainted with the
subjects of which they treat. Such works are resorted to by
judicial tribunals, N O T for the speculations of their authors
concerning what the law ought to be, but for trustworthy
evidence of what the law really is.
SOURCES FROM OTHER VIEWPOINTS

(1) According to to Hans Kelsen, Public International Law
has its source principally in the decision of an international tri-
bunal; this decision is a valid norm of international law only if the
tribunal has been properly constituted by an international treaty;
the treaty itself is valid as a source if the maxim of pacta sunt
servanda — C"treati£S_must be complied with in good faith") is
adhered to; and finally, the reason why we have the maxim is
because of international custom. In short Kelsen says that the
ultimate source is international custom which gives rise to pacta
sunt servanda, which in turn justifies the existence of international
conventions; the treaties then make possible the formation of in-
ternational courts, the precise purpose of which is to lay down
decisions on the matter. The decisions thus rendered constitute
5
the "sources" of international law.
(2) Oppenheim, upon the other hand, categorically says:

Customs and treaties are the two exclusive sources of the law
of nations. When writers on international law frequently enumerate
other sources besides customs and treaties, they confound the term
'source' with that of 'cause" by calling sources of international law
such factors as influence the gradual growth of new rules of in-
ternational law, without, however,'"bearing the historical facts out
of which these rules, receive their legal force. Important factors of
this kind are:
(a) opinions of famous writers on international law;

(b) decisions of prize courts;
(c) arbitral awards;
(d) instructions issued by the different States for the
guidance of their diplomatic and other organs;
(e) state papers concerning foreign politics;
(f) certain municipal laws;
(g) decisions of municipal courts.
"All these and other factors may influence the growth of in-
ternational law either by creating usages which gradually turn
'See Kelsen, Principles of International Law, pp. 417-418.

SOURCES OF PUBLIC I N T E R N A T I O N A L L A W 73
into custom, or by inducing the members of the family of nations

to conclude such treaties as stipulated legal ruleB for future in-
6
ternational cortducL."
NOT&.Jnternational comity OT a source of international
law. However, it influences its growth. On this point, Oppenheim
comments: "In their intercourse with one another. States do ob-
serve not only legally binding rules and such rules as have the
character of usages, but also rules of politeness, convenience, and
goodwill. Such rules of international conduct are no rules of law,
but of comity. The comity of nations is certainly not a source of
international law, as it is distinctly the contrast to the law of
nations. But there can be no doubt that many a rule which formerly
was a rule of international comity only is nowadays a rule of
international law. And it is certainly to be expected that this de-
velopment will go on in the future also, and that thereby many a
rule of present international comity will in the future become one
7
of international law."
Allied B a n k International v. Banco Credito

Agricola de Cartago
757 F.2d 516 (U.S. Court of Appeals,
2d Cir., M a r . 18, 1985)
Appellant, Allied Bank International, brought an action
on behalf of a syndicate of 39 banks to recover unpaid prin-
cipal and accrued interest on a series of promissory notes
issued by appellers, three Costa Rican banks wholly owned
by the Government of Costa Rica. Appellees had ceased
making payments on the notes in reliance on decrees issued
by the Costa Rican Government prohibiting the repayment of
foreign currency obligations in order to resolve a national
economic crisiB. The district court dismissed the action on the
basis of the Act of State doctrine. The U.S. Court of Appeals
for the Second Circuit affirmed per curiam, holding that
regardless of the application of the Act of State doctrine, the
actions of the Costa Rican Government were consistent with
"Oppenheim, International Law (1905) B 19 — Note thai when this edition

at Oppenheim was writ tail in 190ft, The Permanent Court of International Jus-
tice (under the League or Nations) and the International Court of Justice (under
the United National were not yet in existence.
'Ibid.
U.S. law and policy and were, therefore, entitled to recognition

on the basis of C O M I T Y .
CODIFICATION OF INTERNATIONAL LAW

The Codification and progressive development of international
law refers to a systematic organization and statement of the in-
ternational legal norms pertinent to a specific topic. (Robert L.
Beldsoe and Boleslaw A. Boczek, The International Law Diction-
ary, 1987 ed., p. 4).
This can be:
(1) "codification," i.e., a more precise formulation and sys-
tematization of rules in fields where there already has been ex-
tensive State practice, precedent, and criteria; or
(2) "progressive development," meaning the preparation of
draft conventions on subjects that have not yet been sufficiently
developed in the practice of States. (Ibid.)
[ N O T A BENE: In the post-World War II era, much of the
codification of international law has been the result of the work of
the International Law Commission (ILC) created by the UN General
Assembly in 1974 in response to Article 13 of the UN Charter
enjoining the Assembly to encourage the progressive development
of international law and its codification. The four 1958 Geneva
conventions dealing with various aspects of the ocean regime, the
1961 Vienna Convention on Diplomatic Relations, and the 1969
Vienna Convention on the Law of Treaties are only a few exam-
ples of codification efforts of the I L C . Other codification of inter-
national law has been undertaken by the UN itself—the UN
Convention an the Law of the Sea (1982) is an outstanding example.
Other international organizations, both public and private — non-
governmental organizations or N G O s , e.g., the International
Committee of the Red Cross has been engaged in codification work
in its particular sphere of interest. (Bledsoe & Boczek, supra, pp.
5-6).].
It may plausibly be said that the first conscious effort of

various governments to codify international law began with the
Congress of Vienna of 1815 (which, inter alia, gave the ranking of
diplomatic agents, tried to abolish slave trade, and drafted rules
on the free navigation of rivers). The task of codification continued
with:
SOURCES OF PUBLIC INTERNATIONAL LAW 75
(1) The Declaration of Aix-la-Chapelle (1818) (this added a

new class of diplomatic agents)
(2) The Declaration of Paris (1856) (thiB formulated four
rules of maritime law)
(3) The Congress of Paris (1865) (this drafted rules of war,
both on land and on the sea)
(4) The Brussels Conference (1874) (rules on land war —
though never enforced)
(5) The London Naval Conference (1908-1909) (rules on
naval warfare — also never enforced)
(6) Hague Peace Conferences (1899 and 1907) (these con-
tributed to the evolution of conventional international law)
(7) Convention on the Regulation of Aerial Navigation (Paris,
1919)
(8) London Load Line Convention (1930) (this dealt with
the protection of life and property at sea)."
(9) Convention on the Law of the Sea (signed at Jamaica, De-
cember 10, 1982, and where the Philippines is one of the signatories).
With the establishment of the United Nations, the General
Assembly decided to create the International Law Commission.
This Commission has for its object the promotion of the progres-
9
sive development of international law and its codification. While
the Commission is supposed to concern itself primarily with public
international law, it is not precluded from entering the field of
10
private international law. The Commission, after receiving
comments of various governments (on their prepared drafts) may,
among other alternatives, recommend to the General Assembly
that a Conference be convoked in order to prepare a convention or
11
agreement.
— oOo —
"See Historical Survey of Development of International Law and Its Codi-

fication by International Conferences, 4 American Journal of International Law,
29 Supp. (1947).
5
Art- 1(1). Statute of the International Law Commission, 42 A.J.I.L. 1 Supp.
119481.
"Art. 1(2), Statute of the International Law Commission.
"Art. 23(d), Statute of the International Law Commission.
Chapter 3
SUBJECTS AND O B J E C T S OF PUBLIC

INTERNATIONAL LAW
SUBJECTS AND OBJECTS DEFINED

n F p h l r
*\ ftuhj-"* " i International Law ia_an entity 'direUh
possessed of rights and obligations in the intern ationjjnegal or3er"
(e^gTTinjoVereign Stated such as the Philippines, is a subject: for
instance, our government is endowed with certain rights which the
law of nations cannot ignore; Lo enforce said rights, the Philippines
may even sue in the International Court of Justice; by the same
token, official actuations by the Philippine Republic may result in
its being sued in an international tribunal).
An-v>Aj^-QfPnhljc Tntp rpatjonal Law, upon the_other hand,

is merely fndirectSKvested with rights and obligations in the in-
ter nation alSjptrere (e.g., a Filipino private citizen is generally re-
garded not as a subject but as an object: while he is entitled to
certain rights which other States ought to respect, he usually has
no recourse except to course his grievances thru the Republic and
its diplomatic officers).
QUERY
A treaty in force between the Philippines and State " A "
provides that "the nationals of each State shall be free to come to
the territory of the other." The Secretary of Foreign Affairs of the
Philippines had refused to allow Z, national of State "A" to land in
the Philippines. He says that it is his duty under the law of the
Philippines to keep out persons whom he considers to be "unde-
sirable aliens," and that the law has not yet been amended to give
effect to the treaty. A court of the Philippines has upheld this
view. Advise Z. Give reasons for your advice.
76
SUBJECTS A N D OBJECTS OF PUBLIC I N T E R N A T I O N A L L A W 77
ANS.: On the assumption that the question has already been

finally decided by a "court of the Philippines," i.e., a national court,
We will advise Z that being ordinarily only an object of interna-
tional law, he cannot as an individual file any claim against the
Philippines. However, he can turn to his own State, i.e.. State "A",
and should the latter so decide, though it is not obliged to do so,
it may espouse a claim against the Philippines for injury to herself
suffered thru a national. Such claim may be pursued by means of
diplomatic^ negotiations and should these fail, by other pacific
t
means of settlement.(e.g., conciliation, mediation). If the question

-
were to be raised in an international forum like the Permanent
Court of Arbitration or the International Court of Justice, the
treaty will be upheld over the municipal law of the Philippines. Of
course, traditional international law also recognize recourse to
hostile or non-amicable methods of settlement of international
disputes like rupture of diplomatic relations, retorsions, reprisals,
embargo, boycott, non-intercourse, pacific blockade, etc.
PRIVATE INDIVIDUALS
While traditional writers insist that private individuals are

merely objects and not subjects of international law, some recog-
nized writers in recent years have accorded to the individual a
new status in internationajAajv: they say, and with good reason,
tnatpnvate individuals should now be regarded as subjects in the
international order, in view of the importance laid on them by the
following:
^cY the Charter of the United Nations Organization, and

the Universal Declaration of Human Rights;
(The Universal Declaration of Human Rights adopted in 1948
by the General Assembly of the United Nations, provides in its
preamble that:
"It is essential, if man is not to be compelled to have recourse,
as a last resort, to rebellion against tyranny and oppression, that
human rights should be protected by the RULE OF LAW.");
i£) the Nuremberg and Tokyo War Tribunals for War Crimes
(the judgments of which stressed the principle of both command
and individual responsibility);
ffi the norm of general international law which prohibits
piracy (this, of course, can be committed only by acts of private
individuals; not by Acts of State.) Hence, piracy cannot be commit-

ted by the crew of a public vessel acting at the command or with
the authorization of a government. "Governments (which officially
thru public vessels, commit acts of depredation on the high seas)
1
cannot properly be deemed pirates, but enemies";
(£f espionage rules; conventions punishing acts of illegiti-
mate warfare; rules of general international law punishing private
individuals for breach of blockade and carriage of contraband;*
<J3) the practice of certain courts of permitting foreigners to
3
appear and prosecute claims;
(fir) the Genocide Convention of 1948 which directly holds
liable not only States, but also private individuals, for the mass
extermination of a racial group;
the existence of rules safeguarding the rights of aliens
a n d minorities;
[£H punishment for the illegal use of the flag (Kelsen points
out that "under general international law, every vessel mu6t Bail
under the flag of a State; but international law leaves it to the
national law of the State to determine the conditions under which
a vessel is allowed to sail under the flag of that State. All States
are authorized to seize thru their warships, ships which illegiti-
mately sail under their flags and to confiscate said ships by way
of a decision of their own courts, as a penalty for the abuse of the
flag.") This means that the owner of the ship and the master of the
ship are directly obliged under international law not to commit the
delict, and that the owner and the master are made individually
responsible for said act;*
iff) the procedure in admiralty a n d maritime matters;

the special Btatus accorded to refugees, and to displaced
Demons, such a s those fleeing from Vietnam, from Cambodia, and
more recently, the Kurds from Iraq. Refugees are sometimes is-
sued "certificates of identity," which allow some of the advantages
'The Helena, Great Britain High Court of Admiralty. 1801. 4 C Robinson's

Reports 3; Hans Kelsen, Principles of International Law. p. 124.
"Kelsen, op. cit., pp. 128-120.
*See Eagleton, International Government, pp. 123-126.
'Kelsen. op. cit., p. 126.
is^^td- SUBJECTS A N D OBJECTS OF PUBLIC INTERNATIONAL LAW 79
of a passport. These certificates were first issued in 1922 in favor

5
of certain Russian refugees. Later, international agreements took
care of the matter. ,
F
INTERNATIONAL REFUGEE LAW ^
"Refugee Law" is a 40-year old development in public inter-
national law and which, in general, guarantees certain basis or
minimum standards in the treatment of refugees, particularly the
protection of persons fleeing from persecution on grounds of race,
religion, ethnic origin, or political opinion. (See Ricardo C. Fuho,
"The Basis and Rationale of International Refugee Law," The Phil.
Yearbook of International Law, Vol. V I I , 1981, pp. 143-149).
This general principle of international law termed as-mjn-

rvfnulpnwnt prpt-lnrlpn the return of a person already within the
territory to a country in which he fears persecution; it does not
necessarily imply recognition of a duty on the part of the State to
admit persons seeking asylum. {Ibid., p. 149).
The rationale of refugee law is the ciuitas. maxima or the
Q
community f StateB, and the provisions of refugee law constitute
an international humajutarian duty_— if the welfare of the refugees
is of concern to the international community. And because inter-
national protection is granted to refugees for reasojis_ofJuirQanity,
[such) attitude culminated in the establishment of the Office of the
UN High Commissioner for Refugees (UNHCR) on January 1, 1951
— an event which highlighted the growing general concern for the
protection of human rights. This was followed by the Convention
Relating to the Status of Refugees of July 28, 1951 — which is
commonly viewed as the most comprehensive instrument relating
to refugees. (Ibid., pp. 144-145).
[ N O T E : The Permanent Court of International Justice

impliedly ruled in the Mavrommatis Case (PCIJ, Ser. A. No. S, p.
12) that an individual is only an object, not a subject, of interna-
tional law, when it said that the complaint of a private citizen
enters the field of international law only when his national State
takes up the cudgels for him, i.e., when it sues in his behalf. This
ruling is subject to criticism, for it cannot be denied that interna-
tional law regulates the rights and properties of both individuals
'Hudson, Vol. I I , International Legislation, p. 873.

I N T E R N A T I O N A L L A W A N D W O R L D P O L I T I CS
and States. Generally however, it is the State, using its own dis-
cretion, which acts as the instrument in the protection of the
individual's rights. Moreover, while the individual is a subject of
international law, his capaciLy as such is different from that of his
State, e.g., the individual cannot make treaties and cannot possess
belligerent rights. But it is clear that he can commit war crimes
and piracy, and crimes against humanity and foreign sovereigns;
he can own property which international law protects, and he can
have claims to compensation for acts arising ex contractu or ex
delicto. He may not be able to pursue his claims and take action
to protect his property without the intervention of his own State,
but it is STILL HIS C L A I M and S T I L L HIS INTEREST which the
machinery of enforcement is designed to facilitate. (D.P. O'Connell,
International Law, Vol. 1, pp. 118-119).]
' T h e N u r e m b e r g Judgment
41 A.J.I.L. 172 (1947)
FACTS: One of the defenses raised by the war criminals

in Germany was that they themselves as mere individuals
were not directly liable for their acts; that they were merely
carrying out the orders of Adolf Hitler, the German dictator;
and that individuals have no international duties.
HELD.
(1) International law punishes not only States but also
individuals. This rule has long been recognized. In Ex-Parte
Quirin (1942) (317 U.S. 1), persons were accused during the
Second World War of landing on the United States for pur-
poses of spying and sabotage. Chief Justice Stone, speaking
for the U.S. Supreme Court held:
"From the very beginning of its history, this Court has
applied the law of war as including that part of the law of
nations which prescribes the conduct of war, the status, rights,
and duties of enemy nations as well as enemy individuals."
Crimes against international law are committed by M E N ,
not by abstract entities, and only by punishing individuals
who commit such crimes can the provisions of international
law be enforced. The provisions of Art. 228 or the Treaty of
Versailles illustrate and enforce this view or individual
responsibility.
SUBJECTS A N D OBJECTS OP PUBLIC I N T E R N A T I O N A L 1JVW 81
(2) The Charter of the War Crimes Tribunal specifi-

cally provides in its Art. 8 that "the fact that the defendant
acted pursuant to an order of his Government or of a superior
shall not free him from responsibility, but may be considered
in mitigation of punishment." The true test is not the ex-
istence of the alleged orders, but whether or not moral choice
was. in fact, possible.
(3) The very essence of the Charter of the Tribunal is
that individuals have international duties which transcend the
national obligations of obedience imposed by the individual
State. He who violates the laws of war cannot obtain immu-
nity while acting in pursuance of State authority that moves
outside its competence in international law.
INTERNATIONAL ORGANIZATIONS ^
(AS SUBJECTS OF INTERNATIONAL LAW)
"International Organizations" are associations of States, es-
Inhliihrd by trrnfrie? between two or more States, whose functions
trr n" * * T ^ nnti T?' ™ - " ^ « r i p q and which are for utinalri" purposes
n k
subjects of international law. Public international organizations

las distinguished nam "private" or "non-governmental" organiza-
tions) include global, all-purpose organizations; specialized agen-
cies of the United Nations; other global functional organizations;
and regional organizations.
NON-GOVERNMENTAL ORGANIZATIONS (NGOS) —

NOT SUBJECTS OF INTERNATIONAL LAW
NGOs are private, international organizations that serve as

a mechanism for cooperation among private national groups in
international affairB, particularly in economic, social, cultural,
humanitarian, and technical fields. Under Art. 71 of the UN Char-
ter, the Economic and Social Council is empowered to make suit-
able arrangements for consultation with NGOs on matters within
its competence.
Except for limited purposes under international humanitar-
ian law, NGOs are not subjects of international law. Examples of
NGOs include the International Committee of the Red Cross (ICRC);
consumer and producer associations; religious groups; teacher or-
ganizations; professional, legal, civic (e.g., Rotary Club of Manila),
and medical societies; and trade unions.
UN-ESTABLISHED WAR CRIMES COURT

In order to punish those responsible for atrocities in former
Yugoslav states, the UN Security Council on February 18, 1993
moved to established an international war crimes court. While it
could take months (or even years) to set up the court and no
alleged war criminals are in custody, there was no prospect of any
trials soon, although it is hoped the plan will deter atrocities by
putting combatants on notice they could face trial.
U.S. officials have named Serbian President Slobodav
Milosevic and Bosnian Sert leader Radovan Karadzic as possible
war criminals.
RAPE OF WOMEN IN BOSNIA

When International Women's Day was celebrated on March
8, 1993, women throughout the world protested about the commis-
sion of rape in the former Yugoslavia. For instance, in Geneva,
more than 600 women demonstrated in front of the Palace of
Nations, demanding that the systematic rape of women in Bosnia
be made a "crime against humanity" and calling on the UN Hu-
man Rights Commission to name a woman to lead an investiga-
tion into rape in ex-Yugoslavia.
In a message, UN Secretary General Boutros Boutros-Ghali
said:
"[W)hile there had been steady progress on women's
rights in many countries, a reversion to barbarism has oc-
curred in others. Some countries have seen the use of system-
atic sexual violence against women as a weapon of war to
degrade and humiliate entire populations.
"Rape is the most despicable crime against women. Mass

rape is an abomination; it is a symptom of the unrestrained
and vicious new form of warfare which is appearing in the
wake of the Cold War."
In France, women demanded that rape during war should be
recognized as grounds for obtaining political asylum. In Stuttgart,
Germany, Amnesty International demanded that rape be recog-
nized as a war crime. Tliis^gimipalong with the Socialist Inter-
national in Paris a eked-that womeit taped in war be allowed to
automatically apply foroolilical asylum\
/
-SUBJECTS OF PUBLIC INTERNATIONAL LAW AS VIEWED
We have seen that subjects in international law are those to
which the international order accord personality, and are, there-
fore, directly endowed with rights and obligations. There are two
(2) kiilds of subjects:
/(l) trie complete or perfect international personality; and
J (2) th*5 incomplete or imperfect, or qualified or quasi-inter-
6
•natibnal personality
COMPLETE INTERNATIONAL PERSONALITIES

A Stlde is a very good example of a perfect international
personality. States may be divided into the following categories:
(a) The sifigle or the simple State (such as the Philippines);
(b) The composite State (which may be the federal union_or
State, the confederation, the real union, the personal union, or the
inrarôrate_jinion).
(1) The Federal ion or Federal State (such as the
United States of America and the United States of Switzer-
land);
(2) TheConfederation (such as the original Confedera-
tion of the American States, which eventually became the
nucleus of the present United States).
(NOTE: The principal difference between a federal un-
ion and a confederation is 4he—£act_that federal union of
States exists when thacentral or federal government executes
authority over both the various States in the union and the
citizens thereof; while the confederation has some sort of power
over its individual States, but nofoDer the individual citizens
of the member-States. The federal union, as such, is an In-
ternational Person, thus, the United States is represented in
the United Nations as one juridical or international entity;
upon the other hand, the confederation as such is not an
International Person, each of the member-States being rep-
resented by its own delegate. However, there is at present no
confederation or confederated State).
"See Wilson and Tucker, International Law, pp. 62-63.

64 INTERNATIONAL L A W A N D W O R L D POLITICB
(N.B.: A federal union or federated State may be defined

as an independent central organism, having its own gov-
ernmental machinery and absorbing, from the standpoint of
international law, all the individual States associated to-
7
gether. Upon the other hand, a confederation is a loose union
or alliance formed thru a treaty among various States, each
of which is fully sovereign and independent, and each of which
retains its full dignity, organization, and sovereignty though
yielding to the central authority a controlling power for a few
limited purposes such as external and diplomatic relations."
Parenthetically, it may be mentioned that the "Articles of
Confederation" was the name of the instrument embodying
the compact entered into by the thirteen original States of
America prior to the adoption of the present United States
Constitution).
(3) The fteal Union [such as the former United Arab

Republic (U.A.R.) which was formed by two sovereign States
(Egypt and Syria) linked together by a common government
in external affairs and by a common chief of State. The union
then possessed a single international personality (the separate
personalities of the States having been merged into a unified
whole). In the United Nations Organization, the delegates of
the Union were referred to as representing the U.A.R. As of
today, however, the Union has been split into the two original
States — Egypt and Syria. Egypt has however changed its
name to U.A.R — or the United Arab Republic. Other historical
examples of the real union were those of Sweden-Norway (from
1814 to 1905) and or Austria-Hungary (from 1723 to 1918.)"
(4) The Personal Union (this is the merger of two
separate sovereign States in the sense that both have the
same individual as the accidental or temporary Head of state.
However, the union as such has no separate international
personality since each of the member-States has its own
government and its own separate international personality.
It would seem that today, there is no Personal Union in
existence. Historical examples include:
See Molina v. Comm.,,, Regulation del Mervadu de Hcnrqucn. 91 N..I. L u »

382.
'Blacks Law Dittianary. p. 75y.
'See Oppenheim-LauUirpachl, International Law. Vol. I. Set. H7.
SUBJECTS A N D OBJECTS OF PUBLIC I N T E R N A T I O N A L L A W
(a) Belgium and the erstwhile Congo Free State

(1885-1906); and
(b) Great Britain and Hanover (1815-1890).'°
N O T E : The distinctions between a Real Union and a
Personal Union are as follows: the Former has one<government
for external or foreign affairs, while the latter has separate
governments for each member of the union; the former has
one distinct international personality, while the latter as such,
has no international personality; finally in the former, the
members are not international persons, while in the latter,
the members are distinct international persons.
(5) The Incorporate Union (one where the internal and

external organs of government of two States are merged into
one, resulting in a single international personality. An example
is the United Kingdom of Great Britain and Northern Ireland,
which incidentally is one of the permanent members of the
Security Council of the United Nations Organization. While
in a Real Union, there is a merger only of foreign affairs or
external relations, in the Incorporate Union, the merger is
actually complete and concerns internal as well as external
affairs and relations).
N O T E : The British Commonwealth of Nations — Eng-

land, Australia, New Zealand, India, etc. — apparently does
not fall under any of the preceding classifications; indeed it
occupies a unique position in the international scheme of
things. It cannot be a Federal Union or Federal State for no
central organ effectively exercises authority over the various
member-States; not a Confederation for the simple reason
that no treaty binds them together and no central authority
ever has any sort of power over the individual States; not a
Real Union, for each government is separate in the conduct
of itB external relations, and each may even sign and actu-
ally, has signed, separate treaties; not a Personal Union for
the fact that there is a common King or Queen is neither
accidental nor temporary; and certainly not an Incorporate
Union for there is no central governing authority on internal
and external matters. One outstanding feature, however, of
'"Oppenheim-Lanterpacht, op cit., Seca. 67-89.

the Commonwealth is the unswerving loyalty, devotion, and

allegiance of all the people in the various component States
11
to their reigning monarch.
ARE MULTINATIONAL CORPORATIONS

SUBJECTS OF INTERNATIONAL LAW?
^ * M J t is well-known that among the entities participating in the
daily life of the world community, multinational corporations
(MNCs) stand out.
Three (3) of the MNCs principal features are relevant:
X 1. they are very powerful economically and politically (they
are more powerful than many member-States of the U N ) ;
2. their activity is not confined to one single State, but
extends over a great number of countries, in almost all areas of
the world;
3. they make transactions not only with private companies
but also with States and international organizations, and their
disputes with States are often submitted to international arbi-
tration.
Inspite of these characteristics, States have not upgraded these
entities to international subjects proper. Professor Antonio Cassese,
in his International Law in a Divided World (1988), explained thus:
"Socialist countries are politically opposed to them and
the majority of developing States are suspicious of their power;
both groups would never allow them to play an autonomous
role in international affairs. Even Western countries are
reluctant to grant them international standing; they prefer to
keep them under their control — of course, to the extent that
thi6 is possible. It follows that multinational corporations
possess no international rights and duties; they are only
subjects of municipal and transnational' law."
THE ASEAN
The latest grouping in Southeast Asia is the A S E A N (Asso-
ciation of South East Asian Nations) the members of which include
"Oppenheim-Lauterpacht, International Law. pp. 175, 182-183.

SUBJECTS A N D OBJECTS OP PUBLIC I N T E R N A T I O N A L L A W 07
Singapore, Malaysia, Thailand, Indonesia, the Philippines, and

Brunei.
Its principal objective is to obtain economic, educational,
cultural, technological, and defense cooperation in this region of
the World. There are periodic summit conferences among the lead-
ers. Just recently, this regional bloc established the ASEAN Free
Trade Area ( A F T A ) .
THE AFTA
Let's face it! On the matter of economic cooperation, A S E A N
has really no alternative but "to hammer out stronger forms of
union within the region!"
Not just the wretchedness of the earth talking, but the rest
of the world is sold to the idea of regional trade blocs: Europe has
unified itself into a single market faster than many realize; the
U.S., Canada and Mexico have created the North America Free
Trade Agreement ( N A F T A ) . Other trade blocs are emerging in this
decade of the '90B, and they ell signify the adage "in union there
is strength, as well as exclusion." As aptly put by one well-mean-
ing critic: "ASEAN cannot afford to watch these developments with
traditional eyes — as developing countries competing individually
for a piece of the pie; they, too, need to unify, and the process
being long, they must start now!"
The A F T A , short for the ASEAN Free Trade Area, while it
has not yet taken off officially, is not alone. "Look elsewhere at
contemporary changes or sweeping significance. The European
Common Market and the N A F T A represent such changes. They
appear to be driven by economic considerations, yet the actions
and reactions of the players and populations involved are political
and anthropological. The British Parliament's hesitation about the
Maastricht Treaty was motivated more by socio-cultural reasons
than anything else. The U.S. Congress' doubts about N A F T A are
based on special interests that are as much environmental as
economic." (Crocker Snow Jr., "It Is Not Only the Economy, Stu-
pid!," The World Paper, October 1993, p. 8).
Intra-ASEAN diplomacy IB particularly important at this time
because there are still many outstanding differences to sort out.
One problem that must be hurdled is the myopic view within the
member-countries that they are "more of competitors than part-
as INTERNATIONAL LAW A N D WORLD POLITICS
ners." Each is still competing Tor its share of markets and invest-
ments. It takes a more enlightened view ol" the region to realize
that each and all have much to gain from the growth of real
community. (The Daily Globe, "Editorial: Why A S E A N First?," Dec.
20, 1992).
It is said that if and when the Philippines makes good its
promise to improve financial management and policy will the
proposed urgent measures and long-term solutions — all for the
betterment of its economy — be viable. (E.C. Paras Jr., "Emerging
Issues in International Financial Law: Emergence of Regional
Trading Blocs," Foreign Relations Journal, Vol. V I I I , No. 1, March
1993, p. 102). For instance, the A F T A , of which the Philippines is
a member, has made Filipino businessmen wary, this, inspite of
its aim to tackle barriers of growth. Much more with the coming
into place of N A F T A and the EC.
In the case of latter, a study made by the Michigan State

University and East-West Center, revealed that about 12% of
A S E A N trade with North America and Europe will be lost to other
countries with the creation of the N A F T A and the European Single
Market. The study estimated that 4% of A S E A N trade will be di-
verted to N A F T A , while 8% will be lost to the Single European
Market as the two economic blocs offer preferential treatment to
their members. Accordingly, the traded products that will be di-
verted include ASEAN'S best-sellers, namely: chemical compounds,
veneer, textiles, clothing, leather, iron and steel, footwear, raw
sugar, petroleum products, and certain machinery items.
What is the policy implication for the Philippines, in particular,

and Asean, in general? As Philippine Foreign Affairs Secretary
Roberto R. Romulo warned, thus: "If some members of the blocs
produce some of the export products you produce, they may displace
you as a source of imports for their larger market. The trading
blocs may also turn protectionist by setting up new barriers on
imports from non-member countries, increasing the threat to
Philippines exports. Also, investments meant for the A S E A N could
be diverted as larger markets created by the trading blocs become
more attractive. In 1992, a total of $21.29 billion in investment
applications were approved for A S E A N . Of this amount, the Phil-
ippines received only 4%, the smallest share in A S E A N . Now, while
the creation of the A F T A will mitigate the trade loss by increasing
intra-ASEAN trade, the projected increase for Philippine exports
worldwide is expected to be only 4%."
SUBJECTS A N D OBJECTS OF PUBLIC rNTEHNATIONAL LAW
In other words, economic factors inherent in sound growth

are far too numerous, complex, and at times difficult to control
and coordinate. These factors, include, inter alia: the choice of
priority sectors, strict selection of capital investments, reduction
in public spending (especially expenditures for armaments and
showcases), more rigorous management of public enterprises,
control over inflation, support of national currency, reforms of the
tax system, sound agrarian reform, incentives for private enter-
prises, and the creation of job opportunities. (E.C. Paras Jr.
Economics for Lawyers [Manila: Rex Book Store], pp. xii-xiii).
Be this as it may, with the A F T A ' s implementation on Jan.

1, 1993, only Singapore and Malaysia had started on regional eco-
nomic projects. Brunei, Indonesia, Thailand, and the Philippines
— the four other Asean members — have been delayed in the
implementation of the A F T A because of kinks on administrative,
legal and other aspects of the program still needed to be ironed
out. These countries, said Trade Assistant Secretary Edsel Custodio,
will definitely implement the A F T A on Jan. 1, 1994, however. (See
Jake Espino, "AFTA Seen to Make A S E A N a Homogeneous Mar-
ket," Philippine Star, Oct. 13, 1993, p. 18).
Technical details and specific programs of the tariffs reduc-

tion had been approved by the A F T A Council, including the putting
into place of the Comprehensive Effective Preferential Tariff-
A S E A N Free Trade Area ( C E P T - A F T A ) scheme which would create
an enlarged and more integrated A S E A N regional market. Under
the C E P T scheme, tariffs that are currently more than 20% and
5% can be brought down to 5%. All tariffs would be progressively
slashed to between 0% to 5% over the subsequent seven years at
a minimum rate of 5% per cut. Note here that the CEPT agree-
ment allows members to stay out of tariff-lowering arrangements
on certain products until they feel strong enough to open their
markets — the so-called "six minus x" formula for participation.
In addition to the A F T A , other trading blocs are expected to

proliferate in the 1990s, extending to the year 2OO0. Aside from
N A F T A , the world is "likely to 6ee a Central American and South
American version, as well as more preferential arrangements in
the European Community's expanding sphere of influence and
efforts to build a preferential bloc encompassing the Pacific Rim
and Southeast Asia, perhaps including Oceania. Such arrange-
ments are politically attractive because they provide bargaining
power in dealing with other blocs and because they allow trade
liberalization on a selective, 'manageable' basis. By the same to-

ken, a world of trading blocs will limit the welfare gains from
trade and greatly increase interbloc tensions. One incidental
consequence may be a weakening of the hard-won western control
over the Middle East." (Fred Sanderson, "The Next G A T T Hound,"
Choices, Third Quarter 1992, cited by Washington Economic Re-
ports, Oct. 14, 1992, p. 7).
For the year 2000, regional free trade agreement, like the
A F T A , are expected to conform to a strict interpretation of the
qualifying conditions of Article XXTV of the General Agreement on
Tariffs and Trade ( G A T T ) . To serve as a guide and model for
furthering worldwide economic integration is the EC's current
completion plan of its internal market.
THE NORTH AMERICAN FREE TRADE

AGREEMENT (NAFTA)
The N A F T A ' s (North American Free Trade Agreement) com-

ing into fruition signals the birth of the world's largest trading
bloc, composed of the United States, Canada, and Mexico.
The main goals of this proposed agreement are two-pronged:
(lL-to restructure industries; and (2) to rationalize production.
In the view of Canadian Minister for International Trade
Michael H. Wilson:
"A Canadian economy which relied only on its own
market would produce goods al high cost resulting in high
prices. People would buy elsewhere — in Europe, in Asia or
in the United States, larger economies which have the econo-
mies of scale we lack. Canada would be condemned to an
inferiority from which it could never recover."
For Mexican President Carlos Salinas de Gortari:
"What is truly at stake is that a decision is being made
as to what will happen with North America by the end of this
century, or the beginning of the coming century. We have to
be competitive vis-a-vis Europe and the Pacific Basin and the
only way of doing so is by being together. Otherwise, it is not
a matter of losing jobs [to] Mexico but spending the rest of
your life buying Japanese or European products. So, as you
can see, this is an exceptional historic opportunity."
And in the characteristic language of U.S. President George

Bush:
"A N A F T A offers a historic opportunity to bring together
the energies and talents of three great nations, already bound
by strong ties of family, business, and culture. Prime Minis-
ter Mulroney (Canada) and President Salinas (Mexico) are
both leaders of great vision. They believe, as I do, that N A F T A
would enhance the well-being of our peoples. They are ready
to move forward with us on this unprecedented enterprise. In
seeking to expand our economic growth, I am committed to
achieving a balance that recognizes the need to preserve the
environment, protect workers safety, and facilitate adjust-
ment."
THE EUROPEAN COMMUNITY

Alice F. Cabotaje, in an article entitled "A Single European
Market Aborning: An Overview," wrote:
"At the stroke of midnight on Dec. 31, 1992, borders and
barriers within the European Community (EC), much like
the infamous Berlin Wall, tumble[d] down to give way to a
single market. Unlike in Berlin, however, the breakdown of
the walls were not forced on the builders. It was the 12
members of the EC themselves who decided on the integra-
tion of their economies. People, money goods and services
zip[ped] in and out of Spain, Greece, France, Germany, Great
Britain, Belgium, Italy, Denmark, Ireland, the Netherlands,
Portugal and Luxembourg with hardly a check from border
guards and immigration officers.
"The ideal of a single European market formally took

root in 1985 when the European Commission published the
White Paper on Completing the Internal Market. There are
three main blocks to economic integration, the paper said.
These are physical barriers like customs ports and immigration
controls; technical barriers like national product standards;
and fiscal barriers like taxes that result in different prices for
roughly the same goods. Work to bring down these barriers
thus began and the deadline was set. By the end of 1992, all
— if not most — of these barriers [were] nowhere in sight.
But, then having a single market lies not only in having to
do away with barriers, but also with having a single currency
and a unified monetary policy. ThuB, in 1979, the Community

started the process of monetary integration. It created the
European Monetary System ( E M S ) and the European Cur-
rency Unit ( E C U ) .
"Three stages were set to reach the goals of Economic
and Monetary Union ( E M U ) . Stage one which started on July
1, 1990 set the stage for converging the economic perform-
ances of all the EC member-countries. Differences between
exchange rates are to be reduced. Monetary policies are to be
coordinated. During this stage, the currencies of each EC
member will fluctuate within limited bands in a managed
float system. Also, a European Reserve Fund ( E R F ) is to be
set up to help manage exchange rates and serve as a training
ground for coordinating monetary policies. These may still
seem like a long way off. But the clock is ticking and the
community's members are marching toward their avowed goal,
maybe not all at clockwork pace but they appear bent on
getting there."
INCOMPLETE, IMPERFECT, QUALIFIED OR

QUASI-INTERNATIONAL PERSONALITIES
There are entities which possess what is commonly denomi-
nated as an incomplete, imperfect, qualified, or quasi-international
personality: among them are the deoendent_States (protectorates
and suzerainties)^belligerent communities/(and in a quite modi-
fied way^ insurgent,communities, subject to certain conditions);
cojojues/dependencies, and possessions^ mandates and trust terri-
tories; certain public and political corporations or companies-, and
international administrative bodies, /
DEPENDENT STATES ^
There are generally two--k_inds of dependent States: the_pro-
tectorate, and the suzerainty. Both are referred to as "dependent,"
because in a very reaTsense, they are subject to the control and
sovereignty of some other "superior" State or States in the conduct
of their external and foreign relations. To the extent that they
may be allowed some control in foreign matters, they are considered
as international persons; if they have no authority whatsoever on
this point, their personality is restricted — they may not even be
accorded any Btatus as international entities.
The difference between the protectorate and the suzerainty is

this: while the protectorate (the dependent State under the au-
thority of the "protector" State) possesses all competence in in-
ternational affairs which it has not expressly and specifically waived
or renounced, the suzerainty (the dependent State under the control
of the "suzerain" State) has only such competence as has been
specifically conferred upon it by the suzerain. In other words, the
^suzerainty is MORE D E P E N D E N T than a protectorate, and for
exactly this reason, the relationship between the suzerainty and
the suzerain is much closer than that existing between the pro-
tectorate and its protector."
As a matter of fact, authorities say that only the suzerain has

been accorded international status: the suzerainty is generalryonly
-
vassal or tributary in character; upon the other hand, the pro-
tectorate, to a certain degree, may be said to be possessed of an
13
international personality.
Examples of fonne£suzeâinties (at present, they have become

sovereign States):
( B ' Bulgaria was made a vassal suzerainty under the Sul-
tan of Turkey by virtue of the Treaty of Berlin of 1878;
J2TRumania, which used to be under the suzerainty of the Sultan
of Turkey, became a full-fledged State via a decision of the same

1
Congress which made possible the Treaty above adverted to. *
(Both Bulgaria and Rumania have never been satellite States
of the former Soviet Union, now a loosely-held Commonwealth of
Independent States). ^ —^
Examples of present-day jyôtectorates are:
( I K The Republic of Panama (under the United States);
i^T The Republic or Andorra (under Spain and France);
{^T In a modified sense, the Principality of Monaco (under
France);
15
(4") Tunis (under France);
'"'See Wilson and Tucker, International Law, 9th Edition (1935), pp. 62-63.
"See Ibid., see also Oppenheim-Lauterpacht, International Law, Vol. I, Sees.
"See Wilson and Tucker, op cit., p. 63.

15
See Oppenheim-Lauterpacht, op. cit., p. 63.
(5) Until recently also, the Federated Malay States (under

1
Great Britain). "
H. C. van Hoostraten v. L o w L u m Seng

Federated Malay States, Supreme Court, 1939
FACTS: In World War I I , Great Britain was at war

with Germany. The Federated Malay States (a protectorate
under England) was confronted with the problem as to whether
or not German nationals in the protectorate were to be con-
sidered alien enemies.
HELD: Yes, the German nationals, may be regarded as
enemy aliens in the Federated Malay States, since the latter,
being a protectorate of England, can also under certain
conditions be deemed to be at war with Germany. The Su-
zerain or the Protecting Power has, and alone has, the power
to place the Protectorate State at war or at peace; the Fed-
erated Malay States were placed at war by the official acts of
the Resident High Commissioners.
Definitions: Subject to the distinctions already pointed

out, both the suzerainty and the protectorate are weak States
that surrender themselves by treaty unto the protection of a
strong State in such a way that they transfer the management
of all their more important international affairs to the pro-
tecting State. It must be borne in mind, however, that the
name given to the protected State — whether it be suzerainty
or protectorate — really does not matter; sometimes the
weaker State is not even accorded any special designation.
What, therefore, really matters is the degree of dependence.
Brierly says: "A relation of dependence sometimes exists

between two States in fact, but for political reasons, is not
avowed either as a protectorate or a suzerainty. Thus the
United States has at times exercised far-reaching control over
7
the nominally independent States of Central America."'
Is a protectorate or a suzerainty a State? Kelsen an-

swers this query in the following manner: "The effect of a
,s
See H.C. van Hoostraten v. Low Lum Seng (Federated Malay Stales.
Supreme Court, 1939).
"Brierly, The Law of Nations, p. 119.
SUBJECTS AND OBJECTS OF PUBLIC INTERNATIONAL LAW
protectorate treaty is that a body politic under a protectorate

is partly subjected to the national legal order of another State
and not exclusively to the international legal order, and hence
has lost that independence which is an essential element of
a State in the sense of international law. It is a Statelike
1
community, not a full State." "
LIGERENT AND INSURGENT C O M M U N I T I E S ^

Insurgents or rebels may be said to be organized groups who
for public political purposes are in a state of armed hostility towards
an established government. As such, they have no rights under
international law, but if the civil strife threatens to interfere with
the autonomy of foreign intercourse, and has assumed such pro-
portions as to jeopardize the sovereignty of the State over the
insurgent community, certain- insurgent rights may be tacitly
ie
admitted. The following principles would then govern the so-called
insurgent rights:
v j ^ l ) If the acts partake of "piracy" they are obviously private

in character: the ends are not political, and consequently no in-
surgent rights a r i s e ^ ~~
/ (2) Even if a foreign State admits the existence of insurgent
rights, the parent State would still be liable for acts committed by
the insurgent community within the jurisdiction of said parent
21
State.
Example: As a result of the Boxer uprising in China, the
Chinese government had to pay $335 M as indemnity to various
12
States for injuries suffered during the insurrection.
(3) In case of hostile acts committed by the insurgents
against a foreign State, the latter may choose to punish them, or
23
turn them over to the parent State.
(4) A foreign State ought in general to refrain from interfer-
ing in the hostilities between the parent State and the insurgent
"Kelaen, Principle* of International Law, p. 161.

"Wilson and Tucker, International Law, p. 66.
"U.S. v. Ambrose Light, 25 F. 408.
"Br. Pari. Paper*. 1887, Peru. p. 18.
"For. Rel. 1901, Appendix.
s
U o o r e , A Digest of International Law, Vol. II, Bee. 31.
community. For instance, the rebels ordinarily should not be ex-

tended the hospitality of the porta of the foreign State. Neither
should the foreign state extradite the insurgents to the parent
State. Interning of the insurgents may, however, be allowed." At
the discretion of the foreign State, it may, of course, grant tempo-
rary entry or asylum."
QUERY
In the State of X, revolt takes pace. Some three rebels from
this State X come to the neighboring country Y, carrying passports
issued before the revolt, by the government of X. Question: May
these three rebels be permitted to land by the authorities of Y?
Give reasons for your answer.
26
A N S W E R : In the case of Nishimura Ekiu, the United States
Supreme Court held: "It is an accepted maxim of international
law, that every sovereign nation has the power, as inherent in its
sovereignty and essential to self-preservation, to forbid the entrance
of foreigners within its dominions, or to admit them only in such
cases and upon such conditions as it may seem fit to prescribe."
Thus, it is completely discretionary on the part of State Y to permit
or not to permit the three rebels from State X to land in State Y
ji^-land this is true whether or not the passports were issued before
v (• or after the commencement of the revolt; whether or not, if issued
before, the passports had been subsequently revoked; as a matter
ôf fact, whether they have passports at all or not. State Y is
t
. supposed to be a sovereign-State; no other State can, therefore,

y ^dictate who may or who may not enter the State of Y. States can
. <>• refuse the kind of aliens; they can also impose conditions on their
1
entry. States may, for example, specify the kind of aliens who
21
cannot be admitted for reasons of local security and public welfare.
Thus, at State Ys discretion, it may refuse entry, say on the ground
2
that the aliens are undocumented or are subversives * — or it may
2
grant temporary entry or asylum, * reserving to itself the right to
u
See Ex Parte Toscano, 1913, 208 Fed. Rep. 938.
" S e e 1 Oppenheim-Lauterpacht, Sec. 316, p. 618.
M
H 2 U.S. 659.
z7
See, e.g., Sec. 29 (a) of Commonwealth Act No. 613.
a
"See I Oppenheim-Laulerpacht, Sec. 316, p. 618.
w
S e e Wilson. Escaped Prisoners of War in Neutral Jurisdiction. 35 A.J I L.
(1914), 519. 522.
expel them should they turn out to be undesirable (in Tact, said
reservation does not even have to be made) or it may, as in the
case of escaped prisoners of war from a belligerent country, detain
them for the duration in a place or residence without necessarily
interning them in the ordinary manner should this solution prove
30
the most feasible.
£5A^ Just because an insurgent community has been given
certain insurgent rights, it does not necessarily follow that the
community has acquired the status of a belligerent. Neither is
there an official recognition of the insurgents as a belligerent
community as distinguished from a mere insurgent community.
THE CLEVELAND M E S S A G E
As a consequence of the revolution in Colombia, South
America, in 1865, the insurgents were able to seize certain Colom-
bian ports,.and to fly insurgent vessels with the Colombian flag.
The Colombian Chief of State issued a decree to the effect that
said ports would be considered by Colombia as CLOSED to foreign
commerce under penalties meted out by the laws of Colombia, and
that insurgent vessels flying the national flag were beyond the
pale of international law. The United States, thru President
11
Cleveland, refused to recognize the validity of the decree.' The
message of President Cleveland of Dec. 8, 1885 added, however,
the remark that the denial by his government of the Colombian
proposition did N O T imply the admission to belligerent status of
32
the insurgents.
iLLIGERENTS AND BELLIGERENT COMMUNITIES

When the insurgency reaches serious proportions, the rebels,
instead of being merely insurgents, may properly be called
"belligerents" and their community a "belliêrentj:ommunitv''
provided that the following conditions all concur:
(1) The end must be political in characterjthus, a mere
mob or a party of marauders could have no belligerent rights);
"'Hall, Treatise on International Law, p. 40.

"See Wilson and Tucker, International Law, p. 63.
"Wilson and Tucker, op. eit., p. 69.
98 INTERNATIONAL L A W A N D WORLD P O U T I C S
/ (2) The hostilities must be of the character of war, and must

be carried on in accordance with the laws of w a r
(3) The proportions of the revolt must be such as to render
the issue uncertain and to make its continuance for a considerable
time possible; and
/ (4) The conduct of the hostilities and general government of
the revolting community must be in the hands of a responsible
M
organization.
Wilson and Tucker aver that the question of belligerency is
14
a question ofJjjcL-and never a question of theory. Insofar as a
belligerent community has been recognized as such and accorded
a certain status in the international order, insofar does it possess
an international personality — but only for a limited period (the
M
duration of the arms struggle ) .
COLONIES, DEPENDENCIES, AND POSSESSIONS ^
While colonies, dependencies, and possessions (such as the

Philippines under the American regime) are from the viewpoint of
international law part and parcel of the territory to which they
may belong, and cannot, therefore, be a State, still the interna-
tional legal order grants them in a very restricted degree some
international personality. For instance, they may sign international
conventions, and may even become members of the United Na-
tions Organization (subject, of course, to the consent of the members
therein). Thus, even before the Philippines became independent
(July 4, 1946), she was already a signatory to the United Nations
Declaration, and in fact, became a member of the UN in 1945.
A colony/(s'a dependent political community, consisting of a

number of citizens of the same country who have migrated
therefrom to people another country, but remain subject to the
mother S t a t e * A dependency upon the other hand, is a territory
distinct from the country in which the supreme sovereign power
resides, but belonging rightfully to it, and subject to the laws and
31
regulations which the sovereign may think proper to prescribe. A
"Ibid.
u
See The Three Friends, 166 U.S. 1.
^See Schwartenberger, Manual of International Law, pp. 24-27.
M
See U.S. v. The Nancy, 3 Waah. D C . 287.
"Ibid.
dependency, IB said to be distinguished from a colony in that the

former is not necessarily settled by the citizens of the sovereign or
mother State, and from/a possession in that it is held by a title
38
other than that of mere_physical conquest.
MANDATES AND TRUST TERRITORIES

The mandates were the former territorial possessions of the
States defeated in the First World War; they were placed under
the control of the League of Nations and the so-called Mandatories.
After the Second World War, many of these mandates became trust
territories under the supervision of the U N , the Trusteeship
Council, and the so called Administering Authorities.
The mandates were created to afford a chance for them to be
39
developed economically and socially^By more advanced nations.
Upon the other hand, the basic objectives of the trusteeship sys-
tem are:
(a) to further international peace and security;
(b) to promote the political, economic, social, and edu-
cational advancement of the inhabitants of the trust territories,
and their progressive development towards self-government
or independence;
(c) to encourage respect for human rights and for fun-
damental freedoms for all without distinction as to race, sex,
language, or religion, and to encourage recognition of the
interdependence of the peoples of the world; and
(d) to ensure equal treatment in social, economic, and
10
commercial matters.
A trust territory is a qualified or quasi-international person-
ality in the Bense that it has some rights and obligations in the
international order; however, the Administering Authority exercises
the power of sovereignty (the residual sovereignty is, of course, in
the United Nations) over them, although they cannot be ceded to
others without the approval of the UN inasmuch as they do not
form part of the territory of the Administering Authority.
"Set Block's Law Dictionary, p. 557.

"See Art. 22 of the Covenant of the League of Nations.
" A r t . 76, U . N . Charter.
The inhabitants of the trust territories do not become nation-

als or citizens of the Administering Authorities (though allegiance
is required); moreover, they are not generally affected by treaties
41
concluded by the Administering Authorities. It shall be the duty
of the Administering Authority to ensure that the trust territory
shall play its part in the maintenance of international peace and
security. To this end, the Administering Authority may make use
of volunteer forces, facilities, and assistance from the trust territory
in carrying out the obligations towards the Security Council un-
dertaken in this regard by the Administering Authority, as well as
for local defense, and the maintenance of law and order within the
trust territory."
Under Art. 77 of the UN Charter, the trusteeship system

shall apply to the following:
(1) territories now held under a mandate;
(2) territories which may be detached from enemy States as
a result of the Second World War; and
(3) territories voluntarily placed under the system by States
responsible for their administration.
Examples of the third group includes:
(a) New Guinea — placed by Austria;
(b) Western Samoa — placed by New Zealand;
(c) Tanganyika — placed by Great Britain;
(d) The former Japanese Mandated Islands — placed
by the United States.
Outside or the Namibia (South-West Africa), only one U . N .
trust territory remained, i.e., the U.S. Trust Territory of the Pa-
cific Islands (east of the Philippines).
Composed or 2,141 islands and atolls, with about 150,000
inhabitants on 100 of the islands, the latter were later grouped in
four (4) districts, namely:
1. the Northern Mariana Islands;

2. the Marshall Islands;
"See Oppenheim-Lauterpachl, International Law, Vol. 1.

" A n 84, U.N. Charter.
3. Micronesia; and
4. Palau.
On November 3, 1986, the U.S. government announced, how-
ever, that only the Palau would remain under the Trusteeship
Agreement. Be it noted that on May 1986, the UN Trusteeship
Council concluded that the U.S. had satisfactorily discharged its
obligations under the Strategic Trust Agreement and that the
trusteeship system in the Northern Marianas, Micronesia, and
Marshall Islands was to end.
CERTAIN PUBLIC AND POLITICAL COMPANIES

AND CORPORATIONS
There are twojtinds of corporations: the private and the public.

Private corporations usually fall under the domain of Private In-
ternational Law, particularly, where their rights are involved;
however, they are discussed also in Public International Law when
in time of war, their property, and other rights are impaired, or
when, whether in time of peace or of war, maritime law has been
infringed. Public corporations, however, which have delegated
political powers assupre a quasi-international status. Notable ex-
amples include the following:
(1) the British North Borneo Company;

(2) the British South Africa Company; and
(3) the English East Asia Company.
While usually restricted by the functions enumerated in their
respective charters, these companies often performed acts not
warranted by said charter. Their home governments, however,
sanctioned their actuations, and so in time, they more or less were
invested with certain powers of sovereigrity — like the power to
govern, and the power to enter into anu conclude wars. With ref-
erence to the East India Company of England which received its
first charter in 1600, the authority to govern — vested in the
corporation — was finally taken away and transferred to the Eng-
lish crown by the Act of Aug. 2, 1858."
4
'See Wilson and Tucker, International Law, pp. 84-65.
INTERNATIONAL ADMINISTRATIVE BODIES

Oppenheim is authority for the opinion that international
administrative bodies are vested with international personality
insofar as they are beyond the control and authority of any par-
ticular State, including the region in which the seat of the or-
4
ganization may be situated. * International organizations such as
the former League of Nations and the present United Nations are,
of course, in their own way, International Persons* The main or-
gans of the League of Nations were the Assembly Jwhich consisted
of the representatives of all the member-States) and the Council
(a more select group composed of delegates of the Principal Allied
and Associated Powers — namely, the British Empire, France,
Italy and Japan which were the permanent members of the Council
— and the representatives of four other members picked by the
Assembly). While the United States was supposed to be included
in this select group it failed to ratify the peace treaties, and,
4
therefore, did not actually become a member of the Council. -'' The
present United Nations was established independently of the peace
treaties ending World War II and its main purpose is the pres-
ervation of world peace. The Charter of the U N , establishing the
Organization, was signed in San Francisco on June 26, 1945.
Aside from the U N , there are today three (3) groups of Inter-
national Organizations:
(1) Inter-governmental bodies, including the specialized

agencies of the UN
Examples:
(a) F A O — Food and Agricultural Organization
(b) ILO — International Labor Organization
(c) I M F — International Monetary Fund

(d) U N E S C O — United Nations Educational, Scien-
tific and Cultural Organization
( e ) U N I C E F — United Nations International Children's

Emergency Fund
"SEE OPPENHEIM-LAULERPACHL. VOL. I , International Lair. SEC. 289

" S E E ARTS. 2 AND 3 OR THE COVENANT OR THE LEAGUE OF NATIONS; THE COVENANT,
IN TURN, FORMED THE FIRST PART OF THE PEACE TREATIES OF VERSAILLES.
(0 W H O -- World Health Organization
g) mo — International Refugee Organization

(h) UPU -- Universal Postal Union
(i) TAB — Technical Assistance Board
li> ITU — International Telecommunications Union

(k) G A T T - — General Agreement on Tariffs and Trade
(2) 'Other inter-governmental bodies
' Examples:
(a) Permanent Court of Arbitration ( P C A )
(b) International Criminal Police Commission (ICPC)
- (c) Bank of International Settlements (BIS)
(3)^,.Non-governmental international bodies
Examples:
(a) ICJ — International Commission of Jurists
(b) C F M — Christian Family Movement
(c) M R A — Moral Re-Armament
(d) ICC — International Chamber of Commerce
(e) RI — Rotary International
The Constitutions of the International Monetary Fund and
the International Bank for Reconstruction and Development (World
46
Bank ) were embodied in the Articles of Agreement drawn up at
the United Nations Monetary Fund and Financial Conference at
Bretton Woods, N . H . , in July, 1944. The purpose is to facilitate the
development of a multilateral world trading system by promoting
exchange stability and making foreign exchange available to
members in suitable circumstances and under adequate
4
safeguards. **
"•Encyclopedia Britannica, Vol. 12. pp. 526-527.

"Êdgardo C. Paras, Jr., "The World Bank in the 90'H," The Business Star,
July 19, 1991, p. 4.
IMF (Exchange Controls)

Mark Dallal v. The Islamic Republic of Iran
A WD 53-149-1 (Iran-U.S. Claims Tribunal,
The Hague, Jun. 10, 1963)
Claimant, Mark Dallal, filed a claim in the Iran-United States
Claims Tribunal against respondents, the Islamic Republic of Iran
and Bank Mellat, seeking the face amount of two checks denomi-
nated in U.S. currency, which had been drawn by the Interna-
tional Bank of Iran (now Bank Mellat) on Chase Manhattan Bank
of New York and which had been dishonored upon presentation for
insufficient funds. Respondents sought to dismiss the claim, con-
tending, first, that the checks were null and void because their
issuance violated Iranian exchange control regulations, and, sec-
ond, that the circumstances under which the checks were issued
indicated that the checks formed part of a fraudulent act aimed at
circumventing the Iranian regulations. In response, claimant chal-
lenged the validity of the exchange controls at issue and denied,
in any event, that the issuance of the checks violated any valid
currency regulations in Iran. Claimant further contended that New
York law governed payment of the checks and that, as the holder
of negotiable instruments, he was entitled under New York law to
recover on them unless respondents carried the burden of proving
a defense, which they had failed to do. In addition, claimant ar-
gued that if recovery were denied, respondents would be unjustly
enriched,. In a decision written by Judge Lagergren, Chairman of
Chamber One, the Tribunal held: that in light of relevant provi-
sions of the Articles of Agreement of the International Monetary
Fund ( I M F ) , the Tribunal would not enforce payment on the checks,
since such payment would constitute a violation of valid exchange
control regulations of Iran.
N.B.:
Notwithstanding the laudable objectives of the International
Monetary Fund ( I M F ) in fostering international monetary coop-
eration and promoting a stable monetary order, said regulatory
and financing institution is not bereft of legal problems involving
its Articles of Agreement.
The case of Estate of Stoich v. Kolovrat (220 Or. 448, 349 P.
2d 255 [19601, rev'd, 366 U.S. 187, Kolovrat v. Oregon [1961] gave
due cognizance to the fact that the establishment of the IMF (as
well as that of the World Bank) was motivated by the then pre-
vailing international apprehension that the world economy would
SUBJECTS A N D OBJECTS OF PUBLIC I N T E R N A T I O N A L LAW 105
suffer seriously as an aftermath of World War II unlesa some

devices to stabilize it were quickly undertaken by the world powers.
This thought was clearly affirmed by Article I of the Bretton Woods
(IMF) Agreement, wherein its controlling purposes and objectives
are stated.
In accordance with the promotion of international economic
relations, already spelled out as one of the IMF's objectives, the
United States Supreme Court enunciated the view that foreign
exchange regulations are not against public policy if they are used
as a defense for the enforcement of a contract which was entered
into and was to be performed in a foreign country. (Banco de Brasil,
S.A. v. A.C. Israel Commodity Co. <376 U.S. 906 [1964]). Clearly,
the Bretton Woods Agreement prevents the courts from enforcing
illegal transactions in the field of international currency exchange.
But where true governmental interest of a friendly nation,
such as that foreign nation's currency reserves, is involved, a
national policy of cooperation with Bretton Woods signatories is
furthered by providing a State forum for suit. As ruled in Banco
Frances e Brasiliero, S.A. v. Doe (423 U.S. 867 119751), even as-
suming the continuing validity of conflicts of law rule that one
State does not enforce revenue laws of another and correctness of
characterization of currency exchange regulations as revenue laws,
U.S. membership in the IMF made it inappropriate for New York
courts to refuse to entertain the claim by a Brazilian bank for
fraud, deceit and conspiracy to defraud and deceive in which the
bank alleged that "John Doe" defendants violated Philippine cur-
rency regulations by submitting false applications, in reliance upon
which the bank exchanged Brazilian cruzeiros into travelers' checks
totalling more than $1 million.
In other words, U.S. membership in the IMF makes it impos-
sible to conclude that currency control laws of other member-States
are offensive to New York public policy BO as to preclude suit in
tort by a private party. Thus, conduct reasonably necessary to
protect foreign exchange resources of a country does not offend
against international law.
The control of national currency and of foreign exchange iB
an essential governmental function. The State which coins money
possesses the power to prevent its outflow, and some reasoning is
applicable to the imposition of restraints upon transactions involv-
ing foreign exchange.
For that matter, the Act of State doctrine is not limited to

situations in which the foreign act is committed in a manner
colorably valid under foreign law. It makes no difference whether
the foreign act is under local law, partially or wholly, technically
or fundamentally, illegal, but so long as the act is the act of the
foreign sovereign, it matters not how grossly the sovereign has
transgressed its own laws.
It is immaterial what form an Act of State takes — whether
it be an expropriation or confiscation, a conversion or a breach of
contract — as long as such act is committed by the foreign gov-
ernment within its own territory. As held thus in French v. Banco
National de Cuba (295 N . Y . S 2d 433 119681), regardless of whether
the "Decision" issued by the Currency Stabilization Fund of Cuba
prohibiting the exchange of pesos for American dollars complied
with the internal Cuban standards for regularity, since the Cu-
ban bank, also an agency of the Cuban government, refused to
exchange pesos for dollars as certificates had been required, the
breach of contract of which the certificate holder complained of
resulted from and constituted an Act of State.
In J. Zeeri and Sons v. Grinlays Bank (Uganda), Ltd.(423 U.S.

866 [1975]), it was held that the Agreement (which covered only
exchange contracts, i.e., not all contracts affecting exchange re-
sources) was held inapplicable by an Ugandan bank in favor of
Israeli partnership.
In this case, defendants urge that enforcement of the letter
of credit ( L C ) contract would violate the foreign exchange laws of
Uganda in disregard of a treaty, on the ground that both Uganda
and the United States, respectively, are signatories to the
Agreement and which, in relevant part under Art. V I I I , Sec. 2(b)
provides: "Exchange contracts which involve the currency of any
member and which are contrary to the exchange contract regu-
lations of that member maintained or imposed consistently with
this Agreement shall be unenforceable in the territories of any
member."
Contrary to defendants' position, the Agreement, even when

read in its broadest sense, fails to bring the LC within its scope,
since an LC is not deemed an exchange contract.
The multiple exchange rate system in effect in Uruguay, as
ruled in Energetic Worsted Corp. v. U.S. (224 F. Supp. 606, Cus-
toms Court 11963]), did not encounter any objection from the I M F
SUBJECTS A N D OBJECTS OF PUBLIC I N T E R N A T I O N A L LAW 107
standpoint since the Agreement allowed a five-year period for

unification of exchange rates and Uruguay had not yet fixed the
parity of the currency. It was also noted in the aforecited case that
a communication from the IMF established the parities between
P151.90 and P190 per $100 and that the exchange rates envisaged
by the Uruguay government's decree were not inconsistent
therewith.
It has been recognized internationally that multiple currency
practices can, in certain circumstances, constitute a subsidy to
exports which may be met by countervailing duties. As such, the
Court was correct in holding that as per evidence disclosed, the
multiple exchange rate system in effect in Uruguay at the time of
exportation of wool tops conferred a bounty or grant on wool tops
as to require the imposition of countervailing duties.
As a point of clarification, multiple currency practices are
arrangements by which different exchanges rates exist for a
country's currency according to the type of transaction for which
it is to be used. For example, the number of units of the member's
currency which importers are required to pay per U.S. dollar may
vary as to the kind of goods to be imported or services to be brought,
or accorded to the currency in which payment is made. Frequently,
multiple rates are used to offer more favorable terms to importers
of necessities than to importers of luxuries. Multiple currency
practices may be introduced only with I M F approval, however.
As a member-country of the International Monetary Fund

(IMF), one economic decision which the Philippine government
may invariably plead as a treaty defense against a creditor's suit
is the Bretton Woods Agreement (otherwise known as the Fund
Agreement).
Article VIII, Section 2(a) of the Fund Agreement provides
that a member blessed with the seal of approval by the I M F may
"imposed restrictions on the making of payments for current in-
ternational transactions."
"Payments for current transactions," as denned under Article
XXX of the Fund Agreement, include payments which are not for
the purpose of transferring capital and without any limitation at
that: (1) all payments due in connection with foreign trade, other
current business, including services, and normal Bhort-term banking
and credit facilities; (2) payments due as interest on loans and as
net income from other investments; (3) payments of moderate
amount Tor amortization of loans or for depreciation of direct in-

vestments. The Fund may, after consultation with the members
concerned, determine whether certain specified transactions are to
be considered current transactions or capital transactions.
In other words, while a member could adopt and impose
restrictions on capital transactions without the IMF's approval,
the former could not impose restrictions on current transactions
without the the latter*s approval. Thus, a party invoking Article
VIII, Section 2(b) or the "exchange contracts clause" (that may
affect litigations that are now, or will in the future be, before
courts in the United States) can hurdle the burden of showing that
a currency restriction is maintained or imposed consistently with
the Fund Agreement only by showing that: ( i ) the currency-re-
striction only affects capital transfers and, therefore, no I M F ap-
proval is required or; (ii) that a restriction on current payments is
involved but that the I M F had approved the measure.
Based on the foregoing, if no restriction on the making of

payments or transfers for current international transactions is
involved, then the party invoking an exchange control measure
(e.g., exchange surrender requirement of a regulation that controls
capital transfers) need not have to prove that these measures are
maintained or posed consistently with the Fund Agreement.
WHEN THE INTERNATIONAL' (STANDING BY ITSELF) IS USED

The "International" (standing by itself) is used to designate
international organizations devoted to the transformation of the
"capitalist" world order into a "socialist" world order: hence, the
terms "The First International" (1864-1872) (this was under the
theoretical and organizational guidance of Marx and Engels); "The
Second International" (1889-1920) (this was formed by a Congress
in Paris in 1899 — and leading figures included Bebel, Guesde,
Bernstein and Lenin); T h e Third International," commonly referred
to as the Communist International or the Comintern (founded in
Moscow in March, 1919 — among the leaders were Trotsky and
7
Stalin)."
The Order of Malta has been held to be possessed of an in-

ternational personality — by the Italian Court of Cassation in
" S e e Encyclopedia Britannica, Vol. 12, pp. 509-512.

1935. This Order is reputedly the oldest order of chivalry, ob-

taining Malta (of the former Kingdom of Sicily) as early as 1530.
Even when the Order eventually lost its sovereignty over Malta,
it continued to accredit legations and exchange embassies with
several countries (at least seventeen of them). Its Grand Master
and his place in Rome may be said to have sovereign status. The
Court of Cassation referred to, stated in its decision that "it is
impossible to deny to other international collective units, a limited
capacity of acting internationally within the ambit of the actual
exercise of their own functions, with the resulting international
juridical personality and capacity which is its necessary and natural
corollary." (Nanni v. Pace and the Sovereign Order of Malta, Ann.
Dig. 1935-37, Case No. 2).
The International Commission of Jurists is not a regional

agency of the United Nations. It is a non-governmental organization
(NGO) which has a consultative Status, Category "B" with the
United Nations Economic and Social Council. The Commission seeks
to foster understanding of and respect for "The Rule of Law."
Said Commission understands the "Rule of Law" in the fol-

lowing sense: "The principles, institutions, and procedures, not
always identical, but broadly similar, which the experience and
traditions of lawyers in different countries of the world, often having
themselves varying political structures and economic backgrounds,
have shown to be important to protect the individual from arbi-
trary government and to enable him to enjoy the dignity of man."
The "Rule of Law" was expressly recognized in the Declaration of
Delhi (January 10, 1959) of the International Congress of Jurists
(assembled in New Delhi under the aegis of the International
Commission of Jurists)." The X V I Law Conference of the World
held in Manila (Oct. 25-29, 1993) had for its theme, "The Rule of
Law in A Changing World," with emphasis on international eco-
nomic and monetary laws, and health care.
INTERNATIONAL ECONOMIC AND MONETARY LAWS

"International Economic Law" consists of a number of grow-
ing international economic doctrines, e.g., the promotion by inter-
national action of policies conducive to a balanced economic growth,
and the obligation on a State, in technical economic terms, to keep
4
*See Journal of the ICJ. Vol. I I , No. 1, Spring-Summer, 1959.
demand at an appropriate level and to graduate national expendi-

ture in line with growth of production, that may yet be translated
into ruling principles of international law. (See Series I of Article
FV of the IMF Articles of Agreement, as amended; see also J.H.
Jackson, Legal Problems of International Economic Relations: Cases,
Materials and Text [1977] and D. Carreau, P. Juillard, and T. Flory,
Droit International Economique [1978]).
"International Monetary Law" consists of complex interna-
tional rules and guidelines which have been created largely upon
the basis of traditional banking and trading practices, in an effort
to ensure fair and efficient methods of conducting international
financial transactions, to promote international monetary coopera-
tion, and to maintain an orderly exchange system. It includes, for
example, the following:
a. the rules and principles embodied in the Articles of
Agreement of the International Monetary Fund ( I M F ) , re-
ferred to above, the principal object of which is to establish
a system for stabilizing and regulating in an orderly manner
international currency relationships;
b. the provisions of the Articles of Agreement of the
Fund and of the General Agreement of Tariffs and Trade
(GATT), under which restrictions on trade and current pay-
ments are generally allowable only in situations of balance-
of-payments difficulties and are subjected to international
control;
c. the provisions of the Articles of Agreement of the
Fund, and related arrangements and practices, designed to
mitigate the effect of exchange controls and restrictions, and
so far as possible, without making this an absolute goal to
foster the interconvertibility of currencies; and
d. the de facto arrangement implenting the above-
mentioned rules, and serving to preserve monetary stability.
(See Sir Joseph Gold, Legal and International Aspects of the
International Monetary System: Selected Essays [1979]; see
also K.W. Ryan, International Trade Law [1976]).
'SOFT L A W IN INTERNATIONAL LAW

While gaining prominence for the past decade or two, the
precise meaning of what is "soft law" in international law is still
debated.
In a aeries of lectures delivered by Professor Ignaz Seidl-

Hohenveldern at the Hague Academy of International Law in 1979,
he describes international economic "soft law" as a concept applied
to economic affairs.
In Seidl-Hohenveldem's discussion, the distinctive charac-
teristic of soft law, at least in relation to economic matters, appears
to be in the intended vagueness of the obligations that it imposes
or the weakness of its commands. This kind of law can be contained
in treaties or in other instruments, whether or not adopted under
the authority of treaties that show the softness of their context by
such titles as "guidelines" or "declaration of principles."
The essential ingredient of soft law is an expectatioin that

the States accepting these instruments will take their context
seriously and will give them some measure of respect. Certain
other elements are postulated. First, a common intent is implicit
in the soft law as formulated, and it is this commont intent, when
elucidated, that iB to be respected. Second, the legitimacy of the
soft law as promulgated is not challenged. Third, soft law is not
deprived of its quality as law because failure to observe it is not
in itself a breach of obligation. Fourth, conduct that respects soft
law cannot be deemed invalid.
Notwithstanding the usefulness of soft law as a contribution

to the growth of international law that the application of soft law
can produce over time an accretion of firm law, it must be ac-
knowledged that circumstances can force a retreat from firm law,
and then soft law may be the only alternative to anarchy. The law
relating to exchange arrangements iB an example of this devel-
opment.
What is particularly valuable is that a concept of soft law in

economic matters can be helpful in understanding the present
international monetary system. Seidl-Hohenveldern is aware that
6oft law governs at least some of the interstate relationships that
constitute the international monetary system, but most of the
material he cites relates to other international economic rela-
tionships.
If one is predisposed to examine in more detail the soft law
that applies to exchange arrangements and exchange rates in the
international monetary Bystem and some of the consequences of
the softness of that law, he will come to the inevitable conclusion
that soft law cannot be defined Bimply as a genua of law. (N.B.:
The exchange rate for a country's currency is o n e o f t h e moBt

important prices in the economy of a country. At the same time,
the exchange rate is a relationship with the economies of other
countries).
In lieu of this, Borne examples of soft law may be drawn,
particulary from the Articles of Agreement of the International
Monetary Fund ( I M F ) . Thus, Article IV of the Fund Agreement
provides at least four cases of soft provisions:
One. The Fund can make recommendations to its members
but without the power to insist that the recommendations are
binding.
Two. The Fund is authorized to adopt "specific principles for
the guidance of all members" with respect to their exchange rate
policies.
Three. The conduct required of a member is expressed not as
an obligation to achieve a specified objective but as an obligation
to make an effort to achieve an objective.
Four. The character of an obligation may make it impossible
to recognize by means of objective criteria that a breach of the
obligation is occurring.
By and large, therefore, the Fund has authority to develop
the present substantive law of exchange arrangements in various
ways, even though some of the developments would continue to
be soft law. To illustrate, the Fund can adapt specific principles
for the guidance of members' exchange rate policies and can rec-
ommend general exchange arrangements for the decisions of either
kind would give greater precisiion to the Fund's functions of sur-
veillance.
Sir Joseph Gold, formerly the general counsel and director of

the legal department, and now senior consultant of the IMF,
held the view that "the Fund can decide to specify the conduct it
expect6 of members under their obligation to collaborate with it
and with other members; the experience of the past shows that
decisions of this kind under general obligations of collaboration
can have great weight. Even when the decisions are not formulated
as obligations, members tend to consider themselves bound to
comply with the decisions. In addition to these powers, the Fund
can decide to call into existence the par value sytem that is codified
in Schedule C."
Incidentally, two relatively recent development have occurred

thai are relevant to the discussion of soft law of exchange arrange-
ments.
The report of the working group on exchange market inter-

vention commissioned at the Versailles summit became available
and was the subject of a statement, issued on April 29, 1983,
by the summit finance ministers, centra] bank governors, and
representatives of the European Community. The final paragraph
of the statement iB as folows: "Under present circumstances, the
role of intervention can only be limited. Intervention can be useful
to counter disorderly market conditions and to reduce short-
term volatility. Intervention may also on occasion express an atti-
tude toward exchange markets. Intervention will normally be use-
ful only when complementing and supporting other policies. We
are agreed on the need for closer consultations on policies and
market conditions and, while retaining our freedom to operate
independently, are willing to undertake coordinated intervention
in instances where it is agreed that such intervention would be
helpful."
The communique issued on May 30, 1983 at the Williamsburg

summit contains the following paragraphs: (a) The consultation
process initiated at Versailles will be enhanced to promote conver-
gence of economic performance in our economies and greater
stability of exchange rates, on the lines indicated in an annex to
this statement. We agree to pursue closer consultations on policies
affecting exchange markets and on markets conditions. While
retaining our freedom to operate independently, we are willing to
undertake coordinated intervention in exchange markets in an
instance where it is agreed that such intervention would be help-
ful; (b) We have invited ministers of finance, in consultation with
the managing director of the I M F , to define the conditions for
improving the international monetary system and to consider the
part which might in due course, be played in this process by a
high-level international monetary conference; and (c) Exchange
Rate Policy. We will improve consultations, policy convergence and
international cooperation to help stabilize exchange markets."
As we now approach the threshhold of 1994, we can readily

conclude that while these eleven-year old statements do not change
the law on exchange arrangements or the need to strengthen
it, the communique, nonetheless, gives some hope that a strength-
ening of t h e law or of practice under it may be undertaken in the

future, e.g., liberalization of foreign exchange regulations in t h e
Philippines.
WHO AND AIDS

In a report, entitled "International Travel Restrictions and
the AIDS Epidemic," the American Journal of International Law
(Vol. 81, 1987, pp. 230-235), Baid:
"AIDS is truly an international phenomenon, with cases
now reported on every continent. To combat the AIDS epi-
demic, the nations of the world may be reverting to a pattern
of quarantine and restrictions on international travel. For
example, on April 23, 1986, t h e Federal Register gave notice
of a rule proposed by the Center for Disease Control of the
United States Public Health Service that, if enacted, will add
AIDS to the list of seven diseases that provide grounds for
exclusion of aliens. This action would allow the U.S. Depart-
ment of State to deny visas and the Immigration and Natu-
ralization Service to deny admission to aliens subject to
medical examination (generally immigrants and refugees) who
are found to have AIDS. Although seemingly innocuous, the
proposed regulation was initially seen by gay rights groups
as an instrument that could potentially be used to harass
homosexuals and other high-risk groups seeking entry to the
United States. The proposed regulation also contrast with
the U.S. Public Health Service's domestic strategy for coping
with A I D S , which emphasizes education rather than quaran-
tine as the principal means of controlling the disease. [N.B.:
U.S. baskeball superstar Earvin "Magic" Johnson, who an-
nounced in November 1991 that he was infected with AIDS,
has helped to heighten popular awarpnpss of the risks.].
"Claims to restrict travel in order to combat AIDS con-

flict with the policies of the World Health Organization (WHO).
A number of member-States sought the advice of the W H O
on requiring persons seeking to enter their countries to ob-
tain certificates guaranteeing that they were free from AIDS,
AIDS-related complex, or HIV (human immuno-deficiency
virus) infection. The matter was considered at a meeting of
Directors of W H O Collaborating Centers held in Geneva in
December 1985. It was determined at this meeting that test-
SUBJECTS A N D OBJECTS OP PUBLIC INTERNATIONAL LAW 115
tag of international travelers and certification were not war-

ranted. Inapite of the WHO'B efforts to maintain freedom of
travel, these developments could provoke the passage of a
new international norm respecting restrictions on interna-
tional travel.
y
A 'RULE OF L A W STATE
The following are the basic principles, all of which must exist
together in a Rule of Law State:
1. The principle of the separation of powers applicable not
only to the Legislative, the Executive, and the Judiciary, but also
to all points where total power is concentrated in one place; IT The
principle of the independence of judges, both from the Executive
and from all other influences outside the law;3^The principle that
all collective powers, particularly that of legislation and adminis-
tration, must conform to the basic rights and freedoms which
protect the individual citizen; principle of the legality of
administrative action; ST Judicial review of legislation and admin-
istration by independent judges; and 6 ^ T h e existence of a body of
lawyers independent of collective powers and pledged to the idea
of the Rule of Law State. (Hans Klecatsky, Judge of the Adminis-
trative Code of Austria, "Legality of Administrative Action." Journal
of the International Commission of Jurists, Vol. IV, No. 2, Summer
1963, p. 206).
In the XVIth World Law Conference in Manila (Oct. 25-29,

1993), it was the consensus that "the Rule thru Law is a vital and
functional system that can be applied to every international concern
in search of a fair and reasonable solution. It is the very core of
what should govern the changes prompted by modern day realities
caused by rapid industrialization and advancements in science
and technology."
JURIDICAL PERSONALITY OF THE UNITED NATIONS
The "United Nations" possesses juridical personality. It has

the capacity:
(1) Mi contract;
(2) lib acquire and dispose of immovable and movable
property; and
116 I N T E R N A T I O N A L L A W A N D W O R L D P O L I T I CS
49
(3) to institute legal proceedings.
The International Court of Juetice has ruled in an Advisory
Opinion (sought by the General Assembly) that the UN is an in-
ternational person (but not a State — for it lacks certain constitu-
ents elements of a State such as territory and people — and cer-
tainly not possessed of identical rights and duties as those accorded
generally to States; neither may the UN be referred to as a Super
(or Mega) State, whatever said term may signify, but as an inter-
national person, it may bring an international claim (for damages
caused a private person, serving as an agent of the U N ) against
both UN members and non-members — on the theory that after
all, the UN members represent the vast majority of the members
of the international community.™
THE C O U N T BERNADOTTE CASE

(Advisory Opinion of the International Court
of Justice on "Reparation F o r Injuries Suffered
in the Service of the United Nations")
43 A.J.I.L, 589 (1949)
FACTS: While he was working as part of a United

Nations Commission in Israel, Count Bernadotte was as-
sassinated. The General Assembly requested the International
Court of Justice to render an advisory opinion as to whether
or not the UN can bring an international claim (for damages)
against the government (whether de facto or de jure) re-
sponsible for the killing.
HELD: Yes, the UN can bring such a claim. Competence

to bring an international claim is the capacity to resort to the
customary methods recognized by international law for the
establishment, the presentation, and the settlement of claims.
Among these methods may be mentioned:
(1) protest;
(2) request for an inquiry;
" A r l . 1, Convention on the Privileges and Immunities of the United Na-

tions. Approved by the General Assembly, Feb. 13, 1946, 1 United Nations Treatv
Series. 15.
Âdvisory Opinion of the International Court or Justice on Reparation Tor
Injuries Suffered in the Service of the United Nations. A3 A.J.I.L. 589 (19-19).
(3) negotiation; and

(4) and request for submission to an arbitral tribunal
or to the World Court insofar as this may be authorized by
its Statute.
The UN was clearly intended by the Charter to exercise
and enjoy (and is, in fact, exercising and enjoying) functions,
and rights which can only be explained on the basis of the
possession of a large measure of international personality
and the capacity to operate upon an international plane. It
must be acknowledged that its Members, by entrusting cer-
tain functions to it, with the attendant duties and responsi-
bilities, have clothed it with the necessary competence. Ac-
cordingly, the Court has come to the conclusion that the UN
is an international person, and may bring an international
claim even against a non-member, considering that the UN
represents the vast majority of the members of the global
society.
JURIDICAL PERSONALITY OF THE SPECIALIZED

AGENCIES OF THE UN
Just as the UN itself has juridical personality (with all its
attendant rights), so also, have juridical personalities the various
5 1
specialized agencies of the U N .
— oOo —
"Convention on the Privilege* and Immunities of Specialiied Agencies,

Nov 21, 1947, 33 United Nations Treaty Series 261.
Chapter 4
A SOVEREIGN STATE:
ITS ELEMENTS OR ATTRIBUTES
AND ITS VARIOUS RIGHTS
STATE DEFINED
The most important subject of Public International Law is
the sovereign State. A definition, thereof, is thus imperative. A - ^
State is a group of people, more or less numerous, capable of
procreation and of self-defense, living on a definite territory (which
must be on land, and not the sea), possessed of a government to
which the inhabitants render habitual obedience, and such inde-
pendence from external control as would enable it to conduct its
external and internal affairs without unreasonable intervention
from other groups.
Brierly speaks of a State as "an institution, i.e., of relations
which men establish among themselves as a means of securing
certain objects, of which the most fundamental is a system of
order within which their activities can be carried on."'
ELEMENTS OR ATTRIBUTES OF A STATE

As will be gleaned from our definition of a State, a State
must possess certain elements, requisites, or attributes. The ma-
jority viewpoint lists down four of them; the minority opinion
enumerates at least six.
Majority School of Thought: The elements, requisites, or at-
tributes of a State are the following.
(1) a group of people;
'Brierly, The Law of Nations, p. 111.
118
A SOVEREIGN STATE: ITS ELEMENTS OR ATTRIBUTES 119
A N D ITS VARIOUS RIGHTS
(2) definite territory;

(3) government;
(4) independence.
Minority View: In addition to the four enumerated by the
Majority, the Minority view insists on two more:
(5) possession of a sufficient degree of civilization;
2
(6) recognition by the Family of Nations.
EXPLANATION OF THE ELEMENTS OR ATTRIBUTES

(1) People — They are human beings, male and female,
who live together for a common end, notwithstanding differences
r,),^ in race, color, religion, or culture. They must be sufficiently
3
numerous to assure continued existence as a collective body other-

of the union may be frustrated. Pirates, even if
banded together, are in danger of incessant attempts at extermi-
nation because they are international outlaws; hence their society
cannot be deemed a State, in any sense of the term.
(2) Definite Territory — The space on earth occupied by the

State must be more or less fixed to settle eventual disputes on
jurisdiction: the territorial unity, however, need not be a geo-
graphical one; it is sufffcient that it be juristic (recognized by law)
in character. Hence the territory may be: "integrated territory"
(geographically united) or "dismembered territory" (geographically
disunited — as in the case of a State with colonies beyond the
seas). As ably stated by Han6 Kelsen:
T h e territory of the States iB a space within which the
acts of the State, and specially its coercive acts, are allowed
by general international law to be carried out, a space within
which the acts of the State may legally be performed. . . The
territory of a State is legally nothing but the territorial sphere
of validity of the national legal order called a State. . . As an
exception, a State may legally perform acts, and specially
coercive acts on the territory of another State. This is the
case (a) if a State is authorized by particular international
'See Hyde, International Law, Vol. 1, Sec. 7.

i
Sae OppcDheim-Lautcrpacht, Vol. I, International Law, Sec. 84.
law, i.e., by a treaty concluded with another State, to perform

on this territory certain acts determined in the treaty; and
(b) if a State in time of war occupies a part of the territory
4
of the enemy."
The territory may be large or small: this is of no consequence;
whaL is vital is that it be fixed or delimited — hence nomads or
roaming tribes cannot constitute a State for lack of a definite
territory. The territory must be land (with the sea) but certainly
not on the sea alone — hence a State cannot have as its home a
vessel or a group of vessels, whether public or private. Upon the
other hand, changes in the original territory (as by an annexation
of other places) cannot ordinarily affect its status as an interna-
5
tional entity. ^
(3) Government — is the mar-hir^ry nr thp instrument by
which the power in a State expresses its will and exercises i,ts
functions; it is the framework of political institutions, departments,
annôfjices, by means of yhirh thfl PYPnitiyp_jiirliriaJ legislative r
and_a.dministrative business of the State_is carried on. Many

sovereign States today have a republican government, i.e., one in
which the powers of sovereignty are vested in the people, either
directly, or thru representatives chosen by the people,! to whom
6
those powers are specially delegated.
(4) Independence — is freedom from external control i « the
conduct of one's external and internal affairs: thus^. territory
3
posjse^sejLaridj:ontrolled by a State cannot be deemed State by
itself; thus also, the moment a State becomes legally subject to
the national law of another State, the former ceases to be one. In
view of their lack of "independence," the "component States'* of a
Federal Union or State cease to be States in the sense of inter-
national law.
The Minority viewpoint, as has already been intimated, adds

two (2) more requisites which are hereinbelow discussed:
(1) Possession of a Sufficient Degree of Civilization
'Hans Kelsen, Principles of International Law, pp. 207-209.

s
See Fen wick, International Law, p. 105.
B
See Black. Constitutional Law (3rd Ed.), p. 309; In re Duncan, 139 U.S.
1
449; Art. I I . Sec. 1 of the 1987 Phil. Constitution provides: T h e Philippines is a
democratic and republican state. Sovereignty resides in the people and all gov.
ernment authority emanates from them."
According to this requisite, unless a so-called "State" has

attained a degree of civilization compatible with its expected
duties in the international order, it cannot in the meantime be
considered a State. Statehood is then postulated on the ability of
a territory to respect universally accepted principles of interna-
7
tional law. It has been pointed out, however, that the outstanding
difficulty of considering this to be an essential element of a State
is the question of characterization, namely, which are the States
competent enough to judge the morality and the culture of another
group of people?
(2) Recognition by the Family of Nations

To be a member of a small social group, an individual, no
matter how presentable, has to be accepted, or else he becomes an
intruder. Thus, to be a member of the international community, it
is argued, a "State" must be "recognized" by the "family of nations."
Two serious objections to this "requisite" have been pointed out:
firstly, recognition, as practised today, has become principally a
matter of political convenience and diplomatic discretion; sec-
ondly, even if a "State" has not been recognized by say the United
Nations Organization, this should not mean that it is devoid of
social responsibilities in the international order; in other words,
an unrecognized State still has international duties — and duties
necessarily presuppose the existence of rights (for without rights
there are numerous duties which cannot be performed) —
resultantly, if an unrecognized State still has "international rights
and international duties" it is for all legal and practical purposes
still a "State," its non-recognition notwithstanding.
Query: Is the Vatican or the Holy See a State?

Answer: Yes, it would seem that the Vatican or the Holy See
is a State, whether we consider the majority or the minority
viewpoint on the essential elements of a State:
(a) Firstly, there are around 1000 people, almost all of
whom are individuals residing therein by virtue of their of-
fice;
(b> Secondly, there is a definite territory — approxi-
mately 100 acres;
'See Hyde. International Law, Vol. 1, pp. 16-17.

(c) Thirdly, there is a government — under the Pope

himself;
(d) Fourthly, there is independence (it should be noted
that the State of the Vatican City was created by the Lateran
Treaty of February 1, 1922 between Italy and the Holy See.
Under the terms of the Treaty, Italy "recognizes the full
ownership, exclusive dominion, and sovereign authority and
jurisdiction of the Holy See over the Vatican"). Again, in 1929,
the Lateran Treaty recognized the State of the City of the
Vatican as a sovereign and independent State. More than 50
years later (July 1987), the independence of the Vatican was
upheld when the Italian Court Cassation voided arrest
warrants against the senior Vatican bank officials charged
with being accessories to fraudulent bankruptcy in the Ital-
ian Banco Ambrosiano scandal. The Court held that the 1929
Lateran Treaty protected "central bodies" of the Roman
Catholic Church from "every interference" by the Italian
government. As of January 1, 1994, over 100 States maintain
diplomatic relations with the Vatican (including the Philip-
pines), an undeniable proof of its wide acceptance.
(e) Fifthly, no one can question the possession by the

Vatican of "a sufficient degree of civilization";
(0 Finally, the Vatican has been recognized by almost
all the countries of the world, including Russia. The Vatican
City, as a juristic entity, must, however, be distinguished
from the Holy Roman Catholic Church. While the former is
concerned with material things and occupies a definite ter-
ritory, the latter is preoccupied with things of the soul and
the spirit, and as such, is "tied to no limited territory."
However both are subjects of International Law: both have
some international rights, the violations of which can amount
to international delicts; they enjoy, for instance, the right of
legation — the right of diplomatic intercourse — the diplomatic
envoy being called the "papal, nuncio." As head of the Catholic
Church, the Holy Father may enter into:
(1) ordinary treaties — on behalf of the Vatican City;

(2) special treaties (called concordats) — which regu-
late ecclesiastical matters.*
*See Hans Kelsen, Principles of International Law, pp. 159-161.

A SOVEREIGN STATE: ITS E L E M E N T S OR ATTRIBUTES
While the general purpose of the Vatican City differs

from that of ordinary States, there is no question that in this
extrabanausic sphere of ours today, there should always be
room for the eternal and solid influence that is the Church.
[NOTE: — Even before the Holy See became a State, it
was already an I N T E R N A T I O N A L PERSON for a very sim-
ple reason: international law does not allow any single State
to control the Pope in his capacity as head of the Roman
Catholic Church, hence he has to be put in a position of
international autarky. . . he has to be made an independent
subject of international law. (See Hatschek-Manning, An
Outline of International Law, 1930, p. 56). With the Lateran
Treaty, the Pope became a Chief of State.]
THE FUNDAMENTAL RIGHTS OF STATES

Traditionalists say that a sovereign State is endowed with
certain fundamental rights — rights imposed both by the very
nature of international law itself and by the common consent of the
States themselves. While there iB semantic disagreement on the
exact number and the exact classification of these rights, still the
authorities are fairly unanimous in enumerating the following,
inter alia, as the fundamental rights of States, insofar as the
international legal order is concerned:
(1) the right of existence, integrity, and self-preservation

(including the right to acquire territories and the right of individual
or collective self-defense);
(2) the right of sovereignty and independence;
(3) the right of equality;
(4) the right of property and jurisdiction; and
(5) the right of legation or of diplomatic intercourse.
THE FUNDAMENTAL DUTIES OF STATES
(1) As a consequence of right No. 1 — the first duty of a

State is to respect the right of other States to the letter's territorial
existence and integrity; moreover, every State has the duty to
carry out in good faith its obligations arising from treaties and
other sources of international law; hence a State may not invoke
124 INTERNATIONAL LAW A N D WORLD POLITTCa
provisions in its constitution or its IBWB aB an excuse for failure to

perform this duty.
(2) As a consequence of right No. 2 — every State has the
following duties:
(a) to refrain from intervention in the internal or ex-
ternal affairs or any other State;
(b) to refrain from fomenting civil strife in the terri-
tory of another State, and to prevent the organization within
its territory of activities calculated to foment such civil strife;
(c) to ensure that conditions prevailing in its territory
do not menace international peace and order;
(d) to refrain from resorting to war as an instrument
of national policy, and to refrain from the threat or use of
force against the territorial integrity or political independ-
ence of another State, or in any other manner inconsistent
with international law and order;
( e ) the duty of refrain from giving assistance to any
State which is acting in violation of the duty referred to in
(d), or against which the United Nations is taking preventive
or enforcement action;
(f) the duty to refrain from recognizing territorial ac-
quisition by another State acting in violation of (d).
J,3) As a consequence of right No. 3 — every State has the
duty to treat all persons under its jurisdiction with respect to their
human rights and fundamental freedoms, without distinction as to
race, sex, language, or religion.
(4) As a consequence of right No. 4 — every State has the
d u t / t o respect the property rights (including the territorial, flu-
vial, and aerial domains) and jurisdictional processes of other States
insofar as they do not infringe upon the former's own rights.
(5) As a consequence of right N o . 5 — every State has the
duty:
(a) to settle its disputes with other States by peaceful
means in such a manner that international peace and secu-
rity, and justice, are not endangered; and
(b) finally, to conduct its relatione with other States in
accordance with international law and with the principle that
A SOVEREIGN STATE: ITS E L E M E N T S OR ATTRIBUTES
the sovereignty of each State is subject to the supremacy of

9
international law.
CREATING A NEW STATE
On May 22, 1992, the United Nations ( U N ) General Assembly

admitted three new members — Slovenia, Bosnia and Herzegovina,
and Croatia — all of them, in the past, constituent republics of
Yugoslavia. Since June 1991, these three republics — as well as
Macedonia — have seceded from the Yugoslav federation, which
leaves only the two remaining republics to claim the name of
Yugoslavia, as well as its rights and international status, including
membership in the U N .
After the General Assembly admitted the three new members,

a question has been propounded relative to the break-up of the
structures of a UN member-State as a result of the secession of
one or more of its provinces and its ensuing loss of territory and
population. Since its establishment, the UN has faced this prob-
lem on various occasions. The first occurred in 1947, when British
India — an original member of the organization — became inde-
pendent and was simultaneously partitioned into two States, In-
dia and Pakistan. In response to that situation, the UN General
Assembly embraced this position: India continued its membership
in the U N , unaffected by the loss of territory and population, while
Pakistan was admitted as a new member of the UN on Sept. 30,
1947. Similarly, when Bangladesh seceded from Pakistan in 1971,
the latter's UN membership remained unaffected by the loss of its
eastern province, while Bangladesh applied for membership as a
new State and was admitted in 1974.
Likewise, in 1961 when Syria seceded from the United Arab

Republic ( U A R ) , which had been formed three years before as a
result of Syria's merger with Egypt, the UAR's membership in the
UN remained unaffected by that secession. Syria, incidentally,
resumed its seat without going thru the customary admission
procedure, on the theory that, as an original member, it did not
require readmission and was merely "resuming" its former status
within the organization.
"See Draft Declaration on the Rights and Duties of States, 1949 Yearbook
of the International Law Commission, p. 286.
Most recently, this practice was followed on the disintegra-

tion of the Soviet Union: Russia took over the former Soviet seat
(including the USSR's permanent seat on the Security Council),
while most of the other newly-independent republics applied for
membership in the UN and were admitted as new members. Until
the summer of 1991, the Soviet Union consisted of 15 republics.
On Sept. 6, 1991, the State Council of the Soviet Union released
the three Baltic republics (Estonia, Latvia and Lithuania) from its
ranks and recognized their independence. They were admitted to
the UN on Sept. 17. Following the dissolution of the Soviet Union
in December 1991, e i g h t republics ( A z e r b a i j a n , A r m e n i a ,
Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, and
Uzbekistan) applied for UN membership and were admitted on
March 2, 1992. Georgia was admitted on July 31, 1992. Belarus
and Ukraine were original UN members and consequently did not
require admission upon their accession to independence.
According to Professor Yehuda Z. Blum of Hebrew University,

from the legal point of view, the Yugoslav situation closely re-
sembles the India-Pakistan and Pakistan-Bangladesh situations.
If anything, there is greater justification to follow the India-Pa-
kistan practice for Yugoslavia than there was for Russia. In the
latter instance, 11 of the of the 12 republics that constituted the
Soviet Union at the time of its dissolution met in Alma-Ata, the
capital of Kazakhastan, On Dec. 21, 1991, for the purpose of es-
tablishing the Commonwealth of Independent States, they formally
u
declared that, [w]ith the establishment of the Commonwealth,
the Union of Soviet Socialist Republics ceases to exist," and thus
extinguished the Soviet Union as a subject of international law.
Consequently, while the takeover by Russia of the former Soviet
seat was the only politically practical and viable solution under
the circumstances, the correctness of this policy from the legal
point of view may well be questioned. This, notwithstanding, that
the Russian Republic's territory (17.075 million sq. kms.) consti-
tuted 76% of the total territory of 22.4 million sq. kms. or the
Soviet Union, and its population (148 million) constituted 51% of
the total Soviet population of 288.7 million. If one takes into ac-
count that five of the 15 pre-1991 republics of the Soviet Union
(namely, Ukraine, Belarus, and the three Baltic republics), with a
combined population of 70.1 million and a territory of 986,000 sq.
kmB., were already UN members at the time of the Soviet Union's
dissolution, Russia's share in the population and territory of the
remaining 10 republics rises to almost 68% and almost 80%, re-
spectively. For, as will be recalled, the Sixth Committee had ruled

in 1947 that "the rights and obligations which [a} State possesses
as a Member of the UN ceas[e] to exist with its extinction as a
legal person internationaly recognized as such."
Blum stressed that in contradistinction to the case of Russia,

it cannot be reasonably maintained that, as a result of the events
that unfolded in Yugoslavia after June 1991, that country ceased
to exist as a subject of international law. Following the secession
of four of the six constituent republics, the two remaining republics
of the old federation have continued to assert the continuity of
Yugoslavia, albeit in a shrunken form. On April 27, 1992, this
truncated Yugoslavia adopted a new constitution preserving the
name of Yugoslavia and its flag (without the red star of the
Communist era). The territory of rump Yugoslavia (102,000 sq.
kms.) comprises 40% of the territory of the old Yugoslavia and its
population (10.5 million) is 45% of that of the old Yugoslavia.
Thus, by any objective yardstick — whether factual or legal — it
is difficult to deny "the Belgrade authorities" the right to occupy
the seat of Yugoslavia at the U N , however reprehensible their
policies may seem to some or even the overwhelming majority —
of the organization's members.
The facts, notwithstanding, UN Charter law and past UN

practice, the Security Council, in its Resolution 757 of May 30,
1992, noted that "the claim of the Federal Republic of Yugoslavia
(Serbia and Montenegro) to continue automatically the membership
of the former Socialist Federal Republic of Yugoslavia in the UN
has not been generally accepted." In its Resolution 777 of Sept. 19,
1992, the Council then "considered" that the State formerly known
as the Socialist Federal Republic of Yugoslavia has "ceased to
exist" and that the new Yugoslavia "cannot continue automatically
the [ U N ] membership" of the old Yugoslavia. The Council, therefore,
recommended to the General Assembly that it decide that the new
Yugoslavia "should apply for membership in the UN and shall not
participate in the work of the General Assembly." On Sept. 22,
1992, the General Assembly, in its Resolution 47/1, by a vote of
127 to 6 (Yugoslavia and five African nations), with 26 abstentions
and 20 absences, endorsed the Council's recommendation.
Observed Blum: Curiously — and inconsistently — the al-

legedly non-existent Yugoslavia continues to have its seat (with
nameplate) in the General Assembly and the flag continues to fly
in front of the UN compound, alongside those of other member-
States. While Yugoslavia's delegation may not participate in the

Assembly's deliberations and voting, it can still attend its meetings.
Thus, in effect, Yugoslavia has been suspended from the General
Assembly, pending reconsideration of the matter by the Council
"before the end of the main part of the 47th session of the General
Assembly" (Resolution 47/1, para. 2), in a manner not foreseen by
the Charter and in disregard of its Article 5. (Art. 5 provides: 'A
Member of the UN against which preventive or enforcement action
has been taken by the Security Council may be suspended from the
exercise of the rights and privileges of membership by the General
Assembly upon the recommendation of the Security Council. The
exercise of these rights and privileges may be restored by the
Security Council.).
The procedure resorted to in the instant case clearly plays

havoc with the criteria laid down in the wake of the partitioning
of India in 1947 and consistently applied ever since — criteria that
by and large have served the UN and the international community
well over the past decades.
The unification of divided nation-States is a perplexing process

for being simply an act that ordinarily cannot be achieved overnight
or done summarily.
In this age of anxiety, at least four States, belonging to the
same Asian region, have made the first step toward realizing
unification, namely: China and Taiwan, on the one hand, and North
and South Korea, upon the other. A model these States can look
up too is that of Germany, a recent vintage.
Authors Thomas Mayer and Gunther Thumann, in their

treatise Paving the Way for German Unification (Finance and
Development, December, 1990), wrote: "On Oct. 3, 1990, the Ger-
man Democratic Republic (GDR) ceased to exist. [In light of] this
unification between the GDR and the Federal Republic of Germany
( F R G ) , [brought into incumbencyl was (at least for a while), a
stimulus to growth in Europe and in the rest of the world. Of
course, thiB scenario is based on today's perspective provided the
appropriate policy decisions are made."
Ms. Angela Stent, an associate professor of government at

Georgetown University in her The One Germany (Foreign Policy,
No. 81, Winter 1990-91), puts its succintly: "The division of Ger-
A SOVEREIGN STATE: ITS ELEMENTS OR ATTRIBUTES
many has ended. But the unification of Germany has only just
begun. [W]hat once seemed unattainable became a reality: the
swift merger of the two Germanys wth active support from the
United States and remarkably little resistance from the Soviet
Union."
Today, the new Federal Republic, according to Prof. Stent,
must redefine its international role even as it tackles the domestic
problems of unification. Questions about Germany's evolving world
role abound: Will Germany be willing and able to accept the new
political responsibilities that come with economic might? Should
Germany's partners encourage Germany to assume a more assertive
world role? What stake will the new Germany have in a viable
Soviet Union? What direction will German foreign policy take now
that Germany is united and sovereign? "Ultimately," explains Prof.
Stent, "the way Germans view their new world role will depend on
how they come to terms with the past. The West Germans have,
to a large extent, acknowledged and condemned their Nazi past."
The most basic question is how the new Germany will adapt to its
future leadership role. As in the case of Japan, it is worth pon-
dering whether it is wise to encourage Germany to become a world
power again. No casual decision can be made on such an impor-
tant subject. But realistically, a unified Germany will have to
assume new responsibilities in a world with a considerably
weakened Eastern Europe and Soviet Union. If this united Germany
succeeds in forging this new identity, then Germany will indeed
become a greater power with a major voice in shaping the 21st
century.
The issue of unification is inextricably linked to negotiation

inasmuch as the former's realization is heavily dependent on the
letter's success. By and large, therefore, negotiation, according to
Associate Justice Florentino P. Feliciano of the Philippine Supreme
Court, "implies] the contraposition of claims and interests which
are to be adjusted each to the other by agreement."
Justice Feliciano ratiocinates: "Negotiation is qualitatively
different from unilateral grant of a benefit and from unconditional
surrender of a claim. Moreover, negotiations when viewed and
conducted as a zero sum game, for instance, involve notions of
1
'winning and 'losing,' where one sides 'loss,' and tend to stress
adversarial competition rather than cooperation and consensus.
The losing* side in such negotiations might well regard itself as
signing a coerced contract to be eroded by interpretation and in
implementation, and to be renegotiated at the earliest available

opportunity." Allow us next to play this "zero-sum" game in the
case of the two Chinas by underscoring Justice Felicieno's notion
of finally realizing reunification thru the modality of negotiation
as a "process )ead[ing] naturally to recognition of the need for an
intellectual framework in terms of which the events which nego-
tiators deal with and respond to may be considered and analyzed
with some confidence that all factors of substantial significance
would be taken into account."
Apropos to the issue of China's future reunification, two built-

in factors or points of agreement are in order between Taipeh and
Beijing: (1) China must be unified; and (2) unification should prefer-
ably be achieved peacefully. Beijing's advocacy of peaceful reunification
is qualified, however, by its insistence on reserving to itself the right
to unify the country by force in the event of an invasion of Taiwan by
a foreign power or a unilateral declaration of independence by Taipeh.
Analysis will indicate, nonetheless, that Beijing has a very little chance
to realize China's unification by military means. Four reasons are put
forth by Chang Chen-pang, a research fellow at the Institute of In-
ternational Relations, thus:
One. A seaborne assault is an extremely dangerous military
exercise, and something which even Hitler did not dare to under-
take against Britain in World War I I . Considering the present
State of mainland China's air power, would Beijing dare to attempt
such a feat?
Two. An attack on Taiwan would be opposed by Chinese the
world over. Beijing would have no excuse for such an attack since
Taipeh also advocates reunification.
Three. It is questionable whether Beijing could assemble the
massive resources needed for such a war.
Four. If Beijing were to use force against Taiwan, it would
definitely have to face Western sanctions. Surely, the lesson of the
June 4, 1989 Tiananmen Square massacre certainly cannot be
easily forgotten. Moreover, an armed invasion of Taiwan would
turn the island into a wasteland and the invader would have to
bear the political burden of dealing with the fierce resistance of
the island's 21 million people and the economic burden of rebuild-
ing its sabotaged industrial base.
At this point in time, it is difficult to say how reunification
can be brought about by peaceful means, although Chang Chen-
pang's suggestion is clear enough: "Some guidance may be ob-

tained by the experience of German unification. Although there
were many reasons why Germany was able to achieve reunification
in the short space of less than one year, one decisive factor was
East Germany's rapid democratization. Currently, Taiwan is mov-
ing rapidly toward democracy. If the mainland were to do the
same, the two sides could then get down to talks on reunification
based on democratic means and the problems involved would be
much easier to solve. By proposing the institution of democratic
reforms on the mainland as a condition for government-to-govem-
ment negotiations, . . . solving the reunification issue . . . [may be
achieved]."
THE TIANANMEN SQUARE MASSACRE AND THE

QUESTION OF HONGKONG
Minus the just-concluded Gulf war, there have been several

significant events that rocked international relations. Among these
include, inter alia: the Tiananmen Square massacre and the
Hongkong model for reunification.
On Sept. 26, 1984, the United Kingdom ( U K ) and the Peo-

ple's Republic of China ( P R O C ) initialed a "Joint Declaration on
the Question of Hongkong."
The joint declaration spelled out in detail the PROC's policy
toward Hongkong (a longtime British colony), the post-1977
Hongkong regime and its international relations.
Some highlights of the Declaration, include inter alia:
One. After 1977, Hongkong will become a Special Adminis-
trative Region of the PROC under Article 31 of the PROC Consti-
tution. It will enjoy a high degree of autonomy, except in foreign
and defense affairs.
Two. Hongkong will be vested with executive, legislative and
independent judicial power, including that of final adjudication.
Three. Hongkong's chief executive will be appointed by the
PROC after elections or consultations in Hongkong. The govern-
ment of Hongkong will be composed of local people.
Four. Hongkong will maintain the capitalist economic and
trade systems for 50 years after 1977.
Five. The existing social and economic system will remain

unchanged. Freedoms of speech, of movement, of the press, of
assembly, to strike, of religion, and others will be protected by
law. Similarly, private property rights will be protected by law.
Six. Apart from displaying the national flag and national
emblem of the PROC, Hongkong may use a regional flag and
emblem of its own.
Seven. Hongkong may participate in relevant international
organizations and international trade agreements. It may estab-
lish official and semi-official economic and trade missions in for-
eign countries, using the name "Hongkong, China" to maintain
and develop relations and to conclude and implement international
organizations in appropriate fields.
Eight. The PROC defense force stationed in Hongkong shall
not interfere in the internal affairs of Hongkong, and the expen-
ditures for these military forces shall be borne by the PROC's
Central People's Government.
Be it noted that from the PROC's point or view, this agree-
ment is an example of successful implementation of the "one coun-
try, two systems" policy advocated by Deng Xiaoping to serve as
the basis for incorporating Taiwan into the PROC. (See Hungdah
Chiu, "Recent Chinese Communist Policy Toward Taiwan and the
Prospect for Unification," Issues and Studies, Vol. 27, N o . 1,
January 1991, pp. 15-16).
On March 12, 1993, a bill was filed by Hongkong Governor

Chris Patten aimed at widening the electoral franchise in the
territory before China's takeover in 1997. The bill stipulates that
all members of the district boards will be directly elected, abolish-
ing the previous appointments to half of the seats on the boards.
China, which has called off all talks with London since March.
12, has warned that if Patten submits his bill to the Legislative
Council, then negotiations will be impossible, and it will be forced
to ?et up a shadow government in the transition to 1997. Nearly
half the members of the colony's local district boards (a total of
131 out of the 274 members on Hongkong's 19 local government
bodies) petitioned Patten not to submit his bill. The petitioners
said that only thru Sino-British negotiations could the political
controversy be solved, calling cooperation "vital for prosperity and
stability in Hongkong." But as Patten has always insisted, "my
only concern is to do what is Hongkong's best interest." (Asiau-eek.
A SOVEREIGN STATE: ITS ELEMENTS OR ATTRIBUTES
"High Noon: Mr. Patten Is Risking Hongkong's Interests for

BriUint. Oct. 20, 1993, pp. 19-21).
Recall that on June 4, 1989, when Chinese students were
exercising their constitutional rights of freedom of speech and
assembly, demonstration was held at Tiananmen square in Beijing.
Irked, the Chinese Communist government ordered its military
forces to use tanks and machine guns to massacre the students,
resulting in thousands of casualties.
After this tragedy, the PROC engaged in a large-scale

disinformation campaign to distort the facts, claiming at first that
not a single student was killed and then saying only a few students
were killed.
This atrocity sent shock waves all over the world and further
proving, from the Republic of China's (Taiwan) point of view,
that the Chinese Communists are totally unreliable. Soon after
the massacre, Chinese Communist Party General Secretary
Shao Ziyang (Chao-Tzuyang) was removed from power and the
Chinese mainland entered into a period of political and economic
instability.
PREVIEW OF THE SUCCEEDING CHAPTERS

The succeeding chapters of this treatise will deal with:
(1) the nature of the rights and duties enumerated
hereinabove, insofar as they are capable of being ascertained;
(2) the antecedents and the consequences of the rights and
duties;
(3) the remedies for the violation of the rights and the non-
performance of the duties;
(4) the entities called upon to prosecute said remedies; and
(5) the history of Public International Law.
— Oo —
0
0^
Chapter 5
THE FIRST FUNDAMENTAL RIGHT:
THE RIGHT OF EXISTENCE, INTEGRITY
AND SELF-PRESERVATION
BASIS OF THE RIGHT

Once a State has fulfilled the necessary requisites for recog-
nition as such, it exists; therefore, it becomes subject to righLs and
obligations under the international legal order. These rights, it
cannot exercise, and the responsibilities, it cannot fulfill, unless
its continued existence is more or less guaranteed. Continued ex-
istence presupposes its right to survive: sometimes survival is
predicated not alone on the physical maintenance of its territorial
integrity; not infrequently survival demands physical expansion,
hence, if need be, a State may validly acquire territories. In its
fight for survival, a State ought to defend itself whether individually
or in collective collaboration with other States, whenever its con-
tinued existence is placed in jeopardy; hence the right of self-
preservation.
THE RIGHT TO ACQUIRE TERRITORIES

The territory of a country may be physically and materially
inadequate for the needs of its people: a peckish race finds necessity
a basic law; thus the State will seek to expand, sometimes by
honorable and consequently justifiable means, oftentimes by the
brutal might of irresistible force. The history of international ex-
perience records, inter alia, the following modalities of acquiring
territories:
--(1) discovery and occupation;
siZ) prescription;
134
THE FIRST FUNDAMENTAL RIGHT: THE RIGHT OF EXISTENCE 135
INTEGRITY AND SELF-PRESERVATION
S (4) conquest and subjugation; and

1
S (5tf accretion.
DISCOVERY AND OCCUPATION

Almost every region on earth today has already been "dis-
covered and occupied" so this legitimate form of acquiring territory
can hardly be availed of by modern States. However, since this
used to be a very important — perhaps, the most practical —
modality of territorial expansion, it is worth our while to mention
some of the principles governing this modality:
(£r Firstly, only "terra nulliua" (Stateless territory) could be
acquired by discovery and occupation. Thus, lands already belonging
to the •civilized States" were declared off-limits; upon the other
hand, those occupied by the "primitive savages" were regarded as
fair prey. Fenwick saye that "international law has not recognized
the title of wandering tribes or even of settled peoples whose
2
civilization has been below the European standards."
. t2T Secondly, mere discovery, mere planting of the flag or

proclamation of sovereignty over the area, was considered hopelessly
insufficient. Aside from discovery, there had to be occupation, not
a Temporary or transient occupation but an "effectrve-irccupation"
— one that would effectively take real possession of the territory
3
and establish there some kind of administration. Mere dis-
covery gives an "inchoate title" (this means that the discoverer
must be given full opportunity to effectively possess; therefore
in the meantime, other States are legally excluded from the occu-
pation of the territory involved.)* But if that "inchoate title" does
not ripen into an "actual or real title" by effective possession and
administration, some other country may possibly acquire the
territory.*
'See Briggu. The Law of Nations, p. 250.

'Fenwick. International Law, p. 346.
^Kelsen, Principles of International Law, pp. 214-216.
4
Kelaen, op. cit.. p. 215; Hall, Treatiee on International Law, p. 127.
Îsland ofPalmas Arbitration, 22 American Journal of International Law
U926), p. 867.
Island of PalmaB Arbitration

22 American Journal of International L a w 867
FACTS: In the 16th century, Spain discovered the Is-
land ofPalmas midway between Mindanao (Philippines) and
the Dutch East Indies. However, Spain did not effectively
possess the territory. It was Holland (now called The Neth-
erlands), which exercised authority over the island. As the
successor to the Spanish territories in the Pacific Ocean by
virtue of the Treaty of Paris of Dec. 10, 1898, the United
States asked that the island be awarded to it.
HELD: The island cannot be given to the United States

for the inchoate title possessed by Spain (as a result of its
discovery) never ripened into a real title for failure within a
reasonable period to effectively possess and administer the
territory. Effectiveness is required not only for the initial act
of acquisition but also for the maintenance of the right. Upon
the other hand, Holland bases its claim to sovereignty on the
title of peaceful and adequate display of State authority over
the island. This title having been duly proved, the island
should properly belong to Holland.
(3-) Thirdly, the continental shelf of the territory discovered

and effectively occupied should also belong to the acquiring State.
The {^continental shelfôf a country is that part of the seabed and
BubsoiTof the submarine areas contiguous to the coast, but outside
the area of the maritime zone to a depth of 200 meters or even
beyond these limits "to where the depth of the superjacent waters
admits of the exploitation of the natural resources" of the sea-bed
ard sub-soil of the submarine areas. (See definition of "continental
shelf in the UN Convention on the Continental Shelf). The "con-
tinental shelf has been incorporated in Rep. Act N o . 387, other-
wise ktiown as the Petroleum Act. (See also discussion in Chapter
8 — Property and Jurisdiction).
(4) Fourthly, the following doctrines have fallen into disfavor:

(a? the mouth-of-the-river doctrine — the State that
occupies the land area at the mouth of a river is supposed to
be in constructive possessiop of theentire territory thru which
t h e j y e r runs;
(hy/ the Hinterland Doctrine, — occupation of the coast
means constructive occupation of the entire interior even if
not yet explored; and i
THE FIRST F U N D A M E N T A L RIGHT: THE RIGHT OF EXISTENCE 137
INTEGRITY A N D SELF-PRESERVATION
(c/ the right of contiguity — occupation of a particular

territory gives a right to afTthe neighboring territories inso-
far as the latter regions are essential for the proper defense
6
and protection of the former.
^PRESCRIPTION
^Prescription as a mode of acquiring territory necessitates
two (2) ^m^gortant elements^
continuous, public, and adverse possession whether in
good faith or in bad faith of some other State's territory. (Note
that while discovery and occupation presupposes Stateless land,
prescription demands prior ownership or title in another State.).
(2) lapse of a reasonable period of time (what is reasonable
is a question ol fact and can be ascertained" from the particular
circumstances surrounding a case).
N O T E : In the settling of the boundary dispute between Brit-
ish Guiana and Venezuela in 1697, fifty years' possession was
considered sufficient to convey title.
CESSION
Cession is a mode of acquiring territory effected either vol-
untanTptagTh the case of a sale or a donation) or involuntarily (as_
a result^ of war), perfection or validity of the cession commences
upon the meeting of the minds; delivery or tradition merely ef-
7
fectuates the actual exercise of sovereignty. A mere lease effec-
tuated by the owner in favor of another State cannot transfer
ownership for then the possession of the holder would not be
adverse; nonetheless, should the lease be publicly repudiated,
adverse possession can set in and the territory may be acquired by
prescription. Should the State making the cession turn out to be
a mere intruder or usurper, with no transferable right, the cession
is practically purposeless, and ought to be deemed inefficacious.
The courts have generally held that a treaty of cession is a deed or
grant by one sovereign to another, which transfers nothing to which
8
the grantor had no right of property.
'See Wilson, Handbook of International Law, pp. 78-79.

7
See Art. 4 o( the Washington Treaty of 1897.
"See Milehel u. U.S.. 9 Peters 711.
Historic examples of cession are the following:

(1) cession of Louisiana by France to the U.S. (1803);
(2) cession or Florida by Spain to the U.S. (1819);
(3) cession of Alaska by Russia to the U.S. (1867); and
(4) cession or the Caroline Islands by Spain to Germany
(1899).
NOTE: All the abovementioned cessions were made by a treaty
of sale.
CONQUEST AND SUBJUGATION

9
In the case of Castillero v. The United States, conquest was
defined as "the acquisition of the sovereignty of a country by force
af-arma exercised "by-an independent-power, which reduces the
|
vanquished to the submission of its empire." Mere physical conquest

gives an inchoate title; for the title to ripen to real ownership,
10
annexation or subjugation must follow. Such annexation or
subjugation takes place lTthe formal cession is made in the treaty
ofpeace (by legal fiction, the territory is terra nullius, in view of
the extinction of the former sovereignty) or if the loser silently"
arnSwTme transfer of authority (hprp the loser presumably is wilTifie
tosleep on its rights)." Parenthetically, it should be stated that a
treaty ol peace is essentially entered into thru the nsg_flf force j?nd
intimidation: now then, would such a treaty be valid?
(1) Under general international law, while duress usually
vitiates the consent given to a treaty, one notable exception is the
treaty of peace for such a treaty is precisely entered into as a
12
result of fear.
(2) However, under the present Charter of the JJNH-he threat

13
or the use of force i n j R t e m a t i o n a l relations ic i l l e g a l Thus,
noday conquest can no longer be deemed a legitimate modality or
acquiring territory.
•2 Black 109.
'"Oppenheim-Lauterpacht, op. cit., 518.
"See Fenwick. International Law, 359-360.
"See Kelsen, Principles of International Law, p. 326.
la
A r t . 2. No. 4.
THE FIRST F U N D A M E N T A L RIGHT: T H E RIGHT OF EXISTENCE. 139
I N T E G R I T Y A N D SELF-PRESERVATION
The Philippines was acquired by Spain by virtue of discovery

(i.e., from the European viewpoint) and effective occupation; sub-
sequently, it became part of American territory as a result of
physical conquest and eventual subjugation (embodied in the Treaty
of Paris — a treaty of cession); the Japanese during the Pacific
War never acquired the Philippines in the international sense, for
while for a time we were on the verge of physical defeat (con-
quest), we were never annexed or subjugated for the simple reason
that Japan lost the war.
Among the treaties and documents which have denounced
conquest as a means of acquiring territory are the following;
(1) The Anti-War Treaty of Non-Aggression and Concilia-
tion (signed at Rio de Janiero, Oct. 10, 1933 by certain South
American States).
(2) The Declaration by American States (signed at Wash-
ington, August 3, 1932).
(3) The Charter of the OAS (Organization of American
States), signed at Bogota, April 30, 1948. Art. 17 of the Charter
states that:
"The territory of a State is inviolable; it may not be the
object, even temporarily, of military occupation or of other
measures of force taken by another State, directly or indi-
rectly, on any grounds whatsoever. No territorial acquisitions
or special advantages obtained by force or by other means of
coercion shall be recognized."
(4) The Draft Declaration of the Rights and Duties of States
(signed by 11 out of 13 member-States of the International Law
Commission). Under Art. II of the Declaration, every State has the
duty to refrain from recognizing any territorial acquisition by
another State thru war, or the threat of use of force.
ACCRETION
Accretion is the process of attaching or incitrpjarating some-
thing to what an owner of territory already has: the process may
be a natural one (caused by such natural forces as the current of
a river or frje*action of the sea) or an artificial one (such as by the
Act of the State in reclaiming part of the sea in so-called "recla-
yihation projects")
When the territory of a State abuts upon the sea or when it

is bounded by a river, the action of the water may create new
formations, the titles to which are determined by rules drawn in
14
the main from Roman jurisprudence. Where islands are formed
off the coast ofa State by alluvium, volcanic action, or other causes,
they become a part of the State to which the coast belong. The
coast line is thus moved out into the sea, and from the limits of
the new formation, the extent of territorial waters must be esti-
mated. This was the opinion of Lord Stockwell in the famous case
of the A N N A . "
/ M O D lAUTIES
, OR MODES OF LOSING TERRITORIES*
There are six (6) ordinary ways (modes or modalities) of losing
territories:
(fl) ) dereliction or abandonment (in a sense, this is the oppo-
site o£-discovery and occupation: there must be a physical aban-
donment of the property and the intent never to return to the
same — animus_np.a revertendiy^
U2) A prescription —just as there is acquisitive prescription,
therevisvalso extinctive prescription;
(7(3) | cession — since by cession one State can acquire addi-
tionai^territory, it necessarily follows that some other State has
lost the same territory;
4
0 M subjugation — physical conquest alone of a territory
cannot-result in loss; there must also be subjugation. The moment
the right of occupation becomes permanent, absolute title is vested
17
in the conqueror — resulting in loss to the vanquished;
(/(5) ybrces of nature (for instance, avulsion or the sudden
breaking/off of part of the territory can result in loss unless
steps are undertaken to force a return; volcanic eruption may com-
pletely destroy a city or even wrought tremendous damage to a
province or several provinces (e.g., the great extent of damage
caused by Mount Pinatubo in the Philippines); natural elements
,4
Taylor, International Public Law, p. 273.
!i
5 C. Rob. Adm. 373.
"See Hall, Treatise on International Law, Sec. 34.
"See Johnson u. Mcintosh, 8 Wheat, 543.
THE FIRST F U N D A M E N T A L RIGHT: THE RIGHT OF EXISTENCE, 141
harnessed by science, e.g., nuclear bombs, may completely wipe

18
out a State); and
1(6) Jsucce^fuLj^vohrtwms-ind inooisinnr^ (e.g., England lost
the Uwred States in this manner; and a new State, a new power,
soon emerged — the United States of America). (NOTE: The mere
declaration of independence does not commence in a new State:
success has to follow.)
f) ©HUA/ MutuAOt CAutU/ *• \f()iCQfluc Vuxjfi^
INTERNATIONAL ENVIRONMENTAL LAW "
"International environmental law" encompasses the study of
the norms and institutions provided by the international legal
system that regulates environmental change direct!y,_or_ indirectly
attributable to human activity and perceived by the international
community to have a.detrimental effect on valued human interests.
(Allen L. Springer, The International Law of Pollution, 1983, p. 54).
This definition excludes investigation of the international
response to natural disasters such as floods, typhoons, hurricanes,
earthquakes, and volcanic eruptions, except in situations of alleged
links between some human action and the resulting weather
patterns./Efforts to "improve" upon existing natural conditions,
such as irrigation or forestation projects, are similarly excluded,
unless they are undertaken to remedy past harmful human
practices or could themselves result in detrimental environmental
change.
.According to Springer, two (2) dimensions of international

environmental law are distinguishable from each other namely:
(lj^the law of pollution and (2) the law of spoliation. These can be
differentiated in conformity with the modality in which human
activity produces its detrimental impact. Pollution is essentially an
"additive" process, while spoliation involves the "extraction" of
natural resources from their original setting.
Springer avers admittedly that this distinction is often difficult

to fr.aintain in practice. Dumping of toxic chemicals into a river
could be considered "extractive" in that it limits the availabitlity
of the river as a source of fresh drinking water. Adding the element
of intent to its definition ("intentional extraction") might help, in
'"See Hyde, International Law, Vol. I, pp. 391-392.

some cases, to clarify the distinction, but there will undoubtedly

be instances where no simple line can be drawn.
I For Springer, there are two justifications for making the dis-
tinction between pollution and spoliation.
First, it reflects traditional international usage, since numer-
ous international agreements explicitly refer to pollution as an
additive process. Problems such as fishery management tend to be
treated as a separate issue, since States appear more concerned in
this area, with the distribution of resources than they are with
preserving the integrity of ecological systems.
Second, the distinction provides a pragmatic justification.
Narrowing the scope of relevant "law" simplifies the research proc-
ess in a broad and rapidly expanding field. Despite this distinc-
tion, however. Springer contends "that the framework created and
the norms and process analyzed are applicable to the law of spo-
liation. Indeed, it is presumed that the interrelationship that makes
it difficult, at times, to distinguish pollution and spoliation can be
used to encourage the application of principles derived from one
dimension of the field to the other. (See the following: J.L. Hargrove,
"Post-Stockholm-Influencing National Environmental Law and
Practice Through International Law and Policy," American Society
of International Law, Proceedings 66 [1972J:9; Ludwik A. TeclafT,
"The Impact of Environmental Concern on the Development of
International Law," in International Environmental Law 119411;
Myres McDougal, et al., "The World Constitutive Process of Au-
thoritative Decision" [1969-19721; Philip C. Jessup, "Do New Prob-
lems Need New Courts?" in AS1L, Proceedings 65[1971|:261-268;
and Trail Smelter Arbitration, March 11, 194113 U.N.R.I.A.A.,
1965]).
INSURING AGAINST GLOBAL WARMING
In 1992, the UN General Assembly convened a Conference on

Environment and Development ( U N C E D ) held in Rio de Janeiro
(June 1992), with the highest levels of participation. The resultant
effect of said conference was a proposed treaty designed to cope
with climate change.
Brought about by widespread concern over global warming,
the threats of climate change are potentially serious and demand
the concerted attention of the world community.
T H E FIRST F U N D A M E N T A L RIGHT: THE RIGHT OF EXISTENCE 143
Roy P. Crocker, a professor of law at the University of South-

ern California, in his "Beyond Rio: Insuring Against Global
Warming" {American Journal of International Law, July 1992, Vol.
86, No. 3, pp. 487-488), wrote:
"In light of all the scientific and economic uncertainties,
climate change might best be viewed as presenting a heroic
problem in risk management. The conception reminds us that
the aim is not to avoid all the perils that greenhousing may
present, on a worst-case scenario, at any cost; the goal is to
reduce the sum of the cost of avoiding, controlling and insur-
ing the risks. As far as risk avoidance is concerned, no one
has thus far documented a convincing case for going much
beyond a no regrets policy (constraining emissions that can
be eliminated at negative or relatively small cost). A good
argument for further expenditures might be based on appeals
to a collective aversion to the risks of global catalysms, one
that warranted expenditures on measures such as increased
R & D and climate modeling construed as a social risk pre-
mium. Some may conclude that more aggressive avoidance
measures are called for. But even if a far-ranging cooperative
solution that emphasized prevention should prove ideal from
a theoretical perspective, negotiations to achieve it are likely
to be defeated by diplomatic obstacles (including, preeminently,
North-South conflicts). Collapse of the idea would necessitate
a second-best solution characterized by more than optimal
reliance on independent (non-cooperative) internal defensive
adaptations, such as the building of dikes in some regions
and the improvements of water management in others. And
additional insurance, too. Indeed, in the face of the large-
scale scientific, socio-economic and diplomatic uncertainties,
several commentators have begun to talk of insurance against
greenhouse driven perills. Generally, those who have aired
the idea are not using the concept in the most precise or
useful manner. But there is value in taking the idea quite
literally, and examining what private insurance markets could
contribute by spreading the coBts of protecting against risks
that cannot be cost-beneficially (or diplomatically) eliminated,
and softening the losses of those who find themselves most
hard hit.
"Many of the anticipated perils of greenhousing, such as

storms, floods and crop loss, are currently insurable by rivate
markets, and the potential contribution of those markets
cannot be ignored when nations gather to evaluate green-

house policy options JSut in the long term, if wanning gradu-
>
ally increases, private coverage, imperfect at_best, is destined

to recede. There are several ways in which the world commu-
nity might usefully enter the field to support and supplement
private coverage. Indeed, from the developed world's perspec-
tive, with the option of subsidizing or providing insurance the
more attractive, the more dubious the developed nations are,
about ( # * the real risks of climate change; and t2f*the ] r e a
likelihood that transferred resources or technology will be

applied by LDCs to improving the global environment, rather
than to internal development. Indeed, if we carry this line of
thought one step further, and are prepared to seek out the
benefits of insurance in a wide range of unconventional
mechanisms, there are various other alternatives that the
post-Rio negotiators could quite profitably consider — from
global social insurance to underwriting a fund for global
disaster relief. In the last analysis, however, worldwide ef-
forts to cope with climate change are destined to embrace a
wide variety of techniques. The definitive features will emerge
only gradually, even experimentally, as an outgrowth of the
momentuous diplomatic endeavor that is only now beginning."
D E V E L O P M E N T S IN SPACE LAW
Once upon a time, man only looked at the moon. One day,
with a super-powered lens he saw the surface of the moon. He was
delighted. He wondered: Could he reach the moon? Since then he
has been unhappy. He has been disturbed by the consuming query.
Thus, he has worked and labored, searching ceaselessly for the
answer. Today, his mind refined by reason and rendered astute by
science, he has worked out what seems to be the inevitable an-
swer; and in fact the newly invented satellites and space rockets
have already taken him to the moon."
In his International Law and Activities in Space, W.C. Jenks

comments:
"The matter has passed far beyond the stage of imagi-
native fiction. . . We are soberly assured by leading rocket
'"Gloria C. Paras, "How About an International Space Law," Far Eastern

Law Review, Vol. V I , No. A, p. 508.
THE FIRST F U N D A M E N T A L RIGHT: T H E RIGHT OF EXISTENCE, 145
engineers, with every appearance of scientific authority, that

we are on the verge of developments which will result in
instrument-bearing missiles coasting in space in the orbit of
the earth for a limited period, recording electronically scientific
20
information to earth stations by radio and television.
Before the end of the year 1957 Russia had launched Sput-
niks I and II with a dog, Laika. Both man-made satellites were
acclaimed successes. Soon after, four astronauts reached the fringes
of outer space: the Russian Gagarin; and the Americans, Sheppard,
Glenn and Carpenter. And then Neil Armstrong stepped on the
moon. Many others followed.
In this drama of roving, man-made satellites, intent on ex-

ploring and exploiting the earth's atmosphere, stratosphere, and
ionosphere, several problems have arisen, namely:
(1) What is the legal status of space?
(2) W h o has jurisdiction over activities conducted in
space?
(3) How may national authorities protect themselves against
interference from space with matters within their territorial ju-
risdiction; or how may they interfere, by electronics or other means,
with activities in space for the purpose of making such protection
effective?
(4) What is the law applicable to transactions in space

beyond the atmosphere?
(5) What is the legal status of unoccupied territory in the
moon or other planets and satellites, and the natural resources
that may be discovered and exploited in such territory?
(6) What is the relationship between the existing community
of States and a legally organized community which may be found
to exist in other planets or satellites?
Space rivalry, nonetheless, has to a great extent diminished
in today's post-Cold War era, and in effect, has reduced the danger
of outer-space competition, although there is a four-cornered ri-
valry among the U.S., Germany, Japan, and to a lesser extent,
Russia.
" W . C . Jeruu, International Law and Activities in Space, p. 1.

146 INTERNATIONAL L A W AND WORLD POLITICS
egal status of space:

On the question, Associate Justice Gloria Conti Paras of the
Philippine Court of Appeals, in her How About An International
Space Law?, enthused: "What is the legal status of space? It is
submitted that the space beyond the atmosphere is res extra
commerciuJn, incapable by its very nature, of appropriation on
behalf of any particular sovereignty. Space is that beyond the
atmosphere of the earth. The boundaries of space are bereft of
precise definition. The rotation of the earth about its own axis, its
revolution around the sun, the regular motions of the sun and the
planets in the solar system, render impossible the adoption of the
rule of sovereignty over territorial air space. In view of these
Brobdingnagian facts, it is inconceivable that a missile, projected
from a particular area of the earth's surface, would remain di-
rectly above the same surface area. The more practical theory to
adopt in connection with this matter is the rule of freedom of the
,
seas. 9pB0may be likened to the high s e a s M ^ H ^ B B W e by any
particular government, and necessarily open fo free spatial navi-
gation by all those who may, by accident or design, venture forth
into its unknown confines. Also, like the open seas, space may be
subjected only to the natural law limitations of right and jus-
21
tice."
(fisdiction over Activities Conducted in Space:

Several suggestions have been made on the matter of juris-
diction:
supervision must be vested in in-
temational bodies (e.g., the UN or agencies constituted by it).
Effective authority is to be exercised either thru the General
Assembly of the UN or thru any entity agreed upon in an inter-
national conference called precisely for the purpose of centralizing
authority);
(b^ Alternatively, jurisdiction may be exercised by the

country:
Or) conducting the particular activity involved;
(2rY from which departure was physically made; or
" S e e Gloria C. Paraa. op. cit., pp. 509-510; Jenka. op. cit.. pp. 5-17
THE FIRST F U N D A M E N T A L RJOHT: THE RIGHT OF EXISTENCE 147
(3? of the citizens conducting the enterprise.

In view of the global fascination and advantage that may
result therefrom, it has been suggested that an international body
will best suit the purpose of effective jurisdiction."
Protective measure:
Flight into outer space may involve problems of military
strategy and espionage. In time, analogies from present maritime
and aviation laws may prove to be of immense value.
Applicable Law on Outer-Space Transactions:

It is imperative that future General Assemblies of the UN
should formulate rules on the matter. Were the principles of Pri-
vate International Law to apply by analogy to Private Inter-Spatial
Law (e.g., lex loci contractus, lex nationalii, lex domicilii, law of the
destination, lex loci solutionis, law of the flag or more appro-
priately law of the spaceship or rocket), we shall find ourselves
beset again with problems of enforceability and jurisdiction.
Indeed analogous principles "would bring us back to the practica-
bility and legality of applying the theory of territorial sovereignty
23
in space."
Ownership of the Moon and Other Outer-Space Bodies:

Should the moon and other outer-space bodies be eventually
reached and occupied, who would own them? The theory that the
first State that is able to effectively possess them should be the
owner (this follows the theory of the first mode of acquiring terri-
tory: discovery and occupation) appears to be rather naive: firstly,
with the advent, of sophisticated weapons (armaments), the effec-
tiveness of which apparently continues to increase with each passing
day, effective possession of the "heavenly bodies" would primarily
depend on technological success (with alternating periods of
temporary defeat); &condly, the time factor and the distance-factor
ought to be considered (by the time perhaps that the explorers can
return to earth, the inhabitants who saw them off may no longer
" S e e W.C. Jenka, op. cit., p. 17.

" S e e Gloria C. Paraa, op. eit., p. 511.
be present to greet them on their arrival, what is worse is the

possibility that there may be no returning at all).
Declaration By the General Assembly on the Matter:

On December 13, 1963, the UN General Assembly unani-
mously issued a Declaration of Legal Principles Governing Activi-
ties of States in the Exploration and Use of Outer Space. The most
important principles arrived at were (and still are) the following:
(Jf The exploration and use of outer space shall be carried
on for the benefit and in the interest of all mankind.
( 2 ^ Outer space and celestial bodies are free for exploration
and use by all States on the basis of equality, and in accordance
with international law.
(3) Outer space and celestial bodies are not subject to na-
tional appropriation by claim of sovereignty, by means of use or
occupation, or by any other means.
(4) The activities of States in the exploration and use of
outer space shall be carried on in accordance with international
law including the Charter of the United Nations, in the interest of
maintaining international peace and security, and promoting in-
ternational cooperation and understanding.
(5) States bear international responsibility for national ac-

tivities in outer space, whether carried on by governmental agen-
cies or by non-govern mental entities, and for assuring that national
activities are carried on in conformity with the principles set forth
in this Declaration. The activities of non-governmental entities in
outer space shall require authorization and continuing supervision
by the State concerned. When activities are carried on in outer
space by an international organization, responsibility for compli-
ance with the principles 6et forth in this Declaration shall be borne
by the international organization and by the States participating
in it.
(6) In the exploration and use of outer- space, States shall

be guided by the principle of cooperation and mutual assistance
and shall conduct all their activities in outer space with due re-
gard for the corresponding interests of other States. If a State has
reason to believe that an outer space activity or experiment planned
by it or its nationals would cause potentially harmful interference
with activities of other States in the peaceful exploration and use
THE FIRST F U N D A M E N T A L RIGHT: T H E RIGHT OF EXISTENCE, 149
of outer space, it shall undertake appropriate international con-

sultations before proceeding with any such activity or experiment.
A State which has reason to believe that an outer space activity
or experiment planned by another State would cause potentially
harmful interference with activities in the peaceful exploration
and use of outer space may request consultation concerning the
activity or experiment.
.(7) The State on whose registry an object launched into

outer space is carried shall retain jurisdiction and control over
such object, and any personnel thereon, while in outer space.
Ownership of objects launched into outer space, and of their
component parts found beyond the limits of the State of registry
shall be returned to that State, which shall furnish identifying data
upon request prior to return.
(8) Each State which launches or procures that launching of

an object into outer space, and each State from whose territory or
facility an object is launched, is internationally liable for damage
done to a foreign State or to its natural or juridical persons by such
object or its component parts on the earth, in air space, or in outer
space.
(9) States shall regard astronauts [with reference to
Americans] [or cosmonauts apropos to Russians [as, envoys
of mankind in outer space, and shall render to them all pos-
sible assistance in the event of accident, distress, or emergency
landing on the territory of a foreign State or on the high seas.
Astronauts [or Cosmonauts] who make such a landing shall be
safely and promptly returned to the State of registry of their space
vehicle.
Treaty on Outer Space:

On January 27, 1967 at Washington, D.C. U.S.A., 62 countries
signed a treaty on the Exploration of Space (including the Moon
and other Celestial Bodies). The Treaty reiterated the rules given
in the Declaration by the General Assembly (discussed in the
preceding topic) stressing particularly that:
(a) outer space, the moon and other celestial bodies
are subject to the principles of international law;
(b) they are open to navigation and scientific investi-
gation;
160 INTERNATIONAL LAW A N D WORLD POUTICB
(e) they are not, however, subject to appropriation by

any State; and
(d) the signatory StateB agree not to station in outer
space or to place in orbit around the earth, any object carry-
ing nuclear weapons.
The UN Outer Space Law:

There have been two major conferences on outer space organ-
ized by the United Nations.
The first UN Conference on the Exploration and Peaceful Uses
of Outer Space, held in Vienna in 1968, examined the practical benefits
to be derived from space research and exploration and the extent to
which non-space powers, especially developing countries, might enjoy
them. It also considered the opportunities available to non-space
powers for international cooperation in space activities.
The Second UN Conference on the Exploration and Peaceful
Uses of Outer Space ( U N I S P A C E 82), also held in Vienna in 1982,
reflected the growing involvement of all nations, developed and
developing, in outer space activities; assessed the current and future
state of space science and technology; considered the applications
of space technology for economic and social development; and dis-
cussed international cooperative programs related to space and
the role of the U N .
U N I S P A C E 82 stressed that the prevention of an arms race
and hostilities in outer space is an essential condition for the
promotion and continuation of international cooperation in its
exploration and use for peaceful purposes. It made recommenda-
tions on the use of space technology, remote sensing of the earth
by satellites, the use of geostationary orbit, direct television broad-
casting by satellites, and other matters relating to the peaceful
uses of outer space.
The General Assembly endorsed the recommendations set

forth by U N I S P A C E 82, and called for their implementation.
Parenthetically, in considering the military uses of outer space,
the Assembly has expressed grave concern over the extension of
an arms race into outer space and urged all States, in particular
those with major space capabilities, to contribute actively to the
goal of preventing such an arms race.
THE FIRST F U N D A M E N T A L RIGHT: T H E RIGHT OF EXISTENCE 151
This is amid reports that astronauts aboard the space shuttle

Discovery successfully deployed a satellite on Dec. 2, 1992 for the
U.S. Defense Department on the U.S. space agency's last secret
mission for the military. Analysts have speculated the "spy satel-
lite" will use sensitive radar or high-powered cameras to monitor
troop movements in Eastern Europe, Asia, and the Middle EaBt.
Space Law — A Second Look:

With the launching of the first artificial satellite in 1957,
space exploration has become a continuing development highlighted
by the landing of man on the moon.
A cursory reading at the number of launchings which have
been registered with the United Nations ( U N ) will readily indicate
the influence of space science and technology on human endeavors.
Satellites, for one, can be used for communication, weather fore-
casting, education, and remote sensing of the resources of the earth.
The focal point of international cooperation in space activi-
ties is the UN Committee on the Peaceful Uses of Outer Space;
this Committee regulates these activities thru its legal sub-com-
mittee. And with space law emerging as a rapidly expanding branch
of international law, typical examples of the extraterrestrial ap-
plication of international treaty law to outer space and celestial
bodies, include inter-alia: the Space Treaty, the Assistance and
Return Agreement, and the Convention of International Liability
for Space Damage.
Nonetheless, the increase in outer space treaties brings about

the need to have a "retook" on the contribution of space law to the
development of international law, e.g., traditional modes of acqui-
sition of territory; the capacity of international organizations; State
jurisdiction; definition of outer space; the term res communes;
military uses of outer space and celestial bodies; international
legal implications of satellite communications; international legal
aspects of the applications of space science and technology to
national development; and the rules relating to the resources of
the moon. In the course of the discussion of some of these areas,
reference is made to activities relating to space applications in
general, and in particular, to direct broadcast satellites and earth
resources survey satellites.
According to Dr. Ogunsola O. Ogunbanwo of Leyden Uni-

versity, "the Space Treaty is a treaty of principles" and, therefore,
it did not solve all the legal problems relating to the exploration
and use of outer space, e.g., liability for damage, definition of outer
space, and question of the utilization of outer space and celestial
bodies, etc. — topics earlier adverted to.
For instance, on the matter of an effective "definition" of outer
space, the continuing partnership of law and science is very im-
portant, for as it stands now. States are not anxious for a definition
especially if such a definition will interfere in any way with the
freedom of the exploration and exploitation of outer space.
Anent the matter of the use of reconnaisance satellites," it is
felt that as long as those observations from outer space do not
interfere with activities on earth and in outer space, such are not
prohibited by international law. As Dr. Ogunbanwo would simply
put it: "[This is no] different from that of an aircraft or trawler
plying outside the territorial waters of another State in order to
see what is going on."
Apropos to the exploitation of the resources of celestial sources
of celestial bodies, this matter requires some kind of licensing,
inspection, and control for such enterprises. With regard to prop-
erty rights, however, jurisdictional purposes demand that a State
Party to the Space Treaty on whose registry an object launched
into outer space is carried, shall retain jurisdiction and control
over such object and over any personnel thereof, while in outer
space or on a celestial body.
As to the registration of space objects, every attempt should
be made to guard against the "flags of convenience" as known in
air law. Thus, under the International Telecommunication Union
( I T U ) , a specialized organ of the U N , the International Frequency
Registration Board (IFRB) applies the relevant provisions of the
Radio Regulations annexed to the International Telecommunication
Convention, in connection with frequency assignment notices for
space communications received from "administrations." Likewise,
the I T U publishes all particulars of the earth and space stations
which are recorded in the Master International Frequency regis-
ter, in application of the provisions of Article 9A of the Radio
Regulations.
In conformity with Article IX of the Space Treaty, provisions

are made to assure protection against the possibility of contami-
nation of the earth by alien organisms. For example, al) of the
material collected from the moon's surface and brought to earth in
sealed containers on July 25, 1960, was placed under quarantine

in the Lunar Receiving Laboratory at the Manned Spacecraft Center
near Houston, Texas, for 50 days. Fortunately, laboratory tests on
animal and plant life showed no ill-effects.
As is apparent, the experience gained in the evolving law of
outer space has influenced, and will continue to influence the
lawmaking process in other domains, e.g., the Law of the Sea and
the Law of the Environment.
In fine, it is quite appropriate to heed the following remarks
of Professor Manfred Lachs, who enthused: "Looking at the body
of law now existing, it could not be claimed that the rules adopted
attained all the required objectives. Some of them demand further
elaboration, while others are not free of imprecision, or leave room
for improvement. Some others constitute a bare scaffolding for the
law of tomorrow, indications or merely inklings of the trend to be
followed."
The Future of Space Law:

In contemplating future developments in any discipline, there is
a certain mystique, if not a measure of enthusiasm. This appears
particularly true in the field of space law. During the short span of
less than four decades, we have witnessed a spectacular growth in
legal doctrines and practices related to man's activities in outer space.
Few could have foreseen the host of international agreements, dec-
larations, resolutions, recommendations, and other authoritative
statements. The future of space law, thus, just like the present or the
past, is the result of trends and developments. Among the legal issues
likely to arise in the decade of the '90s will be those relating to: W
space stations and human settlements in free space and on celestial
bodies; (27 solar power satellites; and (3) the geostationary orbit, direct
broadcast satellites, remote sensing, and other matters. These subjects
will be briefly covered in that order.
The establishment of a permanently manned space station is a

desired goal of the United States for this decade. Accordingly, a space
station could be manned or unmanned and could involve large
astrophysical observatories or earth-looking imaging systems. It could
also become a vehicle for the pursuit of a stable planetary program
and could serve as a significant center for manufacturing and other
commercial space endeavors. A working space station has now been
a stepping stone for man's durable stay in geosynchronous orbit or on
194 INTERNATIONAL L A W A N D WORLD POLITICS
the moon and has thus paved the way for a mission to Mars, and the
possible mining of precious metals from asteroids:
While space stations may be builL to serve a single function,
such as manufacturing or telecommunications, it is anticipated
that they eventually will be developed as multipurpose infrastruc-
tures which could be utilized in common as well as in a distributed
manner. They could be established and operated as governmental
projects, as a joint enterprise between the government and private
industry or as an entirely private endeavor. Moreover, they could
be built or managed by a single State or by a group of countries
on an international basis, conceivably within the framework of an
international organization like the United Nations or the European
Space Agency or in combination with them. While little is known
in this respect about the plans and activities of the Russian-led
socialist countries, studies of the space station concept have been
undertaken in several West European countries, including France,
Germany, and Italy and also in Canada and Japan, both inde-
pendently and/or jointly with the United States. The envisaged
scenarios are expected to raise a multitude of legal issues many of
which will require appropriate disposition by contract or inter-
national agreement. The issues to be addressed may involve
problems of inter-party and third-party liability, and rights and
responsibilities with respect to the registration of a space station
and its component parts. Questions of jurisdiction, supervision and
control will also probably arise, especially in cases of divided or
joint ownership — national and international, public and private
— of platform and operational sub-systems.
In devising laws governing human conduct in space, it would

be prudent for any State attempting to establish a manned space
station involving living and working in space, to make a thorough-
going review of the possible applicability or inapplicability of its
existing domestic laws, including constitutional law, labor law,
taxation, torts, criminal law, copyright and patent law, and family
law. In addition, the special effect of the space environment and
the human physical and mental reaction to its rigors over a longer
period of time may have to be taken into consideration. As short-
ages of conventional fuel recur, due to increases in demand and
depletions of existing stock, there will be renewed efforts at har-
nessing solar energy both on Earth as well as in space. In the
latter case, solar power could be used directly as needed on a
satellite or space station, or such power could be collected by the
satellite and transmitted to Earth thru the use of microwave beams
THE FIRST F U N D A M E N T A L RIGHT: T H E RIGHT OP EXISTENCE 156
or perhaps laser. While solar power satellites (SPS) could certainly

constitute a part of a multi-purpose space station, some of the
legal and policy issues which wilt have to be addressed are in some
respects unique and are, therefore, worth noting. From a policy
perspective, the most important issue to be addressed will be the
question of the possible internationalization of solar power satel-
lites. An international effort could help to pool resources for the
assessment of the feasibility, benefits and impediments associated
with the development of satellite power systems and eventually
assist in the development itself. Participation by countries could
include contributions to natural and human resources needed for
the SPS program.
Irrespective of whether a solar power satellite system is built

with international cooperation, the most important legal issues,
such as the permissability of the large-scale transmission of solar
power by satellites to Earth, the impact on the environment and
possible interference with other radio transmissions, and access to
the geostationary orbit for power transfer will have to be addressed.
Additionally, while currently the space powers freely utilize solar
energy for their space missions, the problems associated with the
transmission of such energy via satellites to Earth may require
further consideration. The revolutionary advances in space tel-
ecommunications and the growing use of the geostationary orbit is
expected to place increasing pressure on developed and developing
nations alike to find an acceptable solution to the issue of equita-
ble accesB to the geostationary orbit and the frequency bands al-
located to space services. In the field of remote sensing, it will
have to be decided whether prior consent for the transmission of
acquired data to third States or free dissemination of information
will be the guiding principle. Insofar as direct television broadcast
by satellites (DIBS) is concerned, the unresolved issue of prior
consent to such broadcast by a receiving State will require eventual
disposition.
It is worth noting that many other issues will require atten-

tion and subsequent regulation. For example, with regard to space
transport, the expected routing movement of people and materials
to and from space is also likely to necessitate the establishment of
certain guidelines, close cooperation with both domestic a n d inter-
national aviation authorities, and clarification of the legal status
of a spacecraft during its transit thru the air space of another
injury. In this regard, significant attention will also have to be
given by the international community to the problems associated
with Bpace debris, the protection of the space environment and,

possibly, the establishment of an International Space Agency.
'Space' University:
In early February 1993, the International Space University
(ISU) built its terrestrial home in Strasbourg, France.
The university plans to launch a one-year master of space
studies program in 1995, with permanent facilities to be opened by
1997, according to George Van Reeth, ISU president and former
director of the European Space Agency. Strasbourg was chosen as
the site for ISU's permanent campus over Kitakyushu, Japan,
and Toronto, Canada. The school will also operate affiliate campuses
in 24 cities in 14 countries and maintain a small permanent facility
in Washington, D.C.
The university was founded in 1987 to promote space re-
search across national borders and academic disciplines. Summer
programs have included courses in architecture, business, engi-
neering, the life sciences, physics and satellites. Although classes
are conducted in English, the 1992 summer's students came from
29 countries.
Relationship with Outer-World Communities:

Fantastic though may be the thought, still the possibility
subsits that in the other worlds, there may be races. States, and
organizations, either similar to or different from our Planet Earth.
What the relation of this planet would be with them would provide
us with hours of intriguing speculation. In the meantime let us
turn our attention from "Focus: Infinity" to "Operation: Self-
Defense."
THE RIGHT TO SELF-DEFENSE

The right of individual or collective self-defense is expressly
recognized by the UN Charter. Art. 51 thereof reads:
"Nothing in the present Charter shall impair the inherent
right of individual or collective self-defense if an armed at-
tack occurs against a Member of the United Nations, until
the Security Council has taken the measures necessary to
maintain international peace and security. Measures taken
T H E FIRST F U N D A M E N T A L RIGHT: THE RIGHT OF EXISTENCE 157
by Members in the exercise of this right of self-defense shall

be immediately reported to the Security Council and shall
not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any
time such action as it deems necessary in order to maintain
or restore international peace and security."
Comment
( I I To invoke the right of self-defense under this Article,
there must be pfSSent the following requisites:
J tell an armed attack;
(bp the attack must be against a Member of the U N ;
ang
(c) the Security Council must not have acted yet.
(2) "Armed attack" is not defined in the Charter; thus, it would
seem JJrat the particular State involved initially determines whether
or not such an attack exists; ultimately, it is the Security Council that
decides whether or not "the armed attack" has taken place.
(37 The Security Council determines whether or not a par-
ticular State is responsible for "the armed attack"; it then takes
the measures "necessary to maintain international peace and se-
curity" (this, of course, does not necessarily mean that "an armed
counter-attack" has to be resorted to by the U N . )
(4L--If the "armed attack" is not against a UN member, does
there still exist the right of self-defense? While this is not provided
for in the Article mentioned, still it is believed that under genera)
international law the right continues to exist; indeed the right of
self-defense (which is really the doctrine of self-help) is nothing
but an extension of the right of self-preservation. Otherwise stated,
the right of self-defense is simply the right to repel the use of force
with force. The necessity for self-defense must, however, be "in-
stant, overwhelming, and leaving no choice of means, no moment
for deliberation.""
THE CUBAN QUARANTINE

HT July, 1962, United States intelligence sources observed a
massive increase in Soviet arms shipments to Cuba. On Septem-
u
The Caroline, see Moore, A Digett of International Law. Vol. I I . p. 412.
ber 2, Cuban and Soviet officials acknowledged the sending of

15
Russian military aid to Cuba. On September 4, President John
F. Kennedy expressed American concern over the Soviet arms build-
up. On September I 1, Russia justified the aid because of alleged
"imperialist provocation" (on the part of the United States);
moreover, Russia claimed, since the United States refused to buy
Cuba's sugar, Cuba had no choice but to barter the sugar for
Soviet "commodities."
On September 13, President Kennedy at a news conference
said:
"If at any time, the Communist build-up in Cuba were
to endanger or interfere with our security in any way, in-
cluding our base at Guantanamo, our passage to the Panama
26
Canal, or missile and space activities at Cape Canaveral or
the lives of American citizens in this country, or if Cuba
should even attempt to export its aggressive purposes by force
or the threat of force against any nation in this hemisphere,
or become an offensive military base of significant capacity
for the Soviet Union, then this country will do whatever must
be done to protect its own security and that of its allies."
On September 25, Cuba's Fidel Castro announced plans to
build a port in his country for the Atlantic fishing fleet of Russia.
On September 26, the United States Congress expressed the
nation's determination to oppose with force if necessary Commu-
nist aggression or subversion based in Cuba. Congress relied on:
(a) the Monroe Doctrine enunciated in 1823'"
(b) the Rio Treaty of 1947 (where it is provided that an
armed attack against an American state shall be considered
as an attack against all American states)
September 2, 1962, issue of the newspapers carrying a joint communique

published by the Soviet News Agency Tass.
" A f t e r Kennedy's assassination, Cape Canaveral was renamed Cape
Kennedy.
a
The Monroe Doctrine of 1823 laid down two important principles of
American foreign policy:
(a) Firstly, America was for the Americans; hence the European powers
should no longer regard any part in America as subject to future colonization;
and
(b) Secondly, since the United States had no desire to intervene in Eu-
ropean affairs, it would regard European intervention in American affairs as an
unfriendly act of aggression against the United States itself.
INTEGRrTY A N D SELF-PRESERVATION
(c) the Declaration of the Foreign Ministers of the Or-

ganization of American States ( O A S ) at Punta del Eate
(January, 1962), stating that:
"The present government of Cuba has identified itself
with the principles of Marxist-Leninist ideology, has estab-
lished a political, economic, and social system based on that
doctrine, and accepts military assistance from extra-conti-
nental Communist powers, including even the threat of
military intervention in America on the part of the Soviet
Union."
( N O T E : The foreign ministers eventually approved a resolu-
tion allowing even the use of necessary arms for the prevention of
Communist extension into the Western hemisphere).
On October 22, Kennedy, in a radio-telecast revealed to the
American public the existence of Soviet offensive weapons in Cuba,
announced the intent of his government to effect a quarantine of
Cuba. To quarantine a country is to prevent it from receiving
certain goods or materials believed detrimental not only to it but
to surrounding States. In point of actual application, it is akin to
a blockade. Kennedy in making the dramatic announcement said:
"Our policy has been one of patience and restraint, as
befits a peaceful and powerful nation, which leads a world-
wide alliance. We have been determined not to be diverted
from our central concerns by mere irritants and fanatics.
"But now, further action is required — and it is under
way; and this action may only be the beginning. We will not
prematurely or unnecessarily risk the course of a worldwide
nuclear war in which even the fruits of victory would be
ashes in our mouth — but neither will we shirk from that
risk at any time it must be faced.
"Our goal is not the victory of might, but the vindication

of right — not peace at the expense of freedom, but both
peace and freedom, here in this hemisphere, and we hope,
around the world."
Kennedy called upon the Council of the OAS to meet and
act under Arts. 6 and 8 of the Rio Treaty." In the afternoon of
" T h e Rio Treaty entered into by all the American Republics provides Tor
reciprocal assistance in caae of a threat of external aggression Under Art. 6 of
October 23, said Council met and unanimously approved a resolu-

tion:
(a) calling for immediate dismantling and withdrawal
from Cuba of all missiles and war weapons with offensive
capabilities
(b) recommending even the use of forcible measures in
the attainment of said objective.
Later, in the evening (7 p.m.) of October 23, 1962, Kennedy
signed a proclamation imposing a quarantine on offensive weap-
ons shipments to Cuba, and ordering American forces "to interdict
the delivery of offensive weapons and associated materials to Cuba"
effective at 2 p.m., Greenwich time, October 24, 1962.
Noting that the U.S. Armed Forces readily obeyed the com-
mand of their President, Premier Khrushchev of Russia wrote
Kennedy on October 26, a message agreeing to withdraw the of-
fensive weapons. This was followed up in the subsequent message
of October 28 where the Premier informed Kennedy that he
(Khrushchev) had "instructed our officers to take appropriate
measure to discontinue the constructions, to dismantle them, and
29
to return them to the Soviet Union."
Was the Cuban quarantine a violation of international law?

There are many who say that the quarantine violated no rule
or principle of international law. They argue:
(1) The quarantine was not a unilateral actuation on the
30
part of the United States; it was based on the collective judgment
and recommendation of the American Republics made under the
Rio Treaty — a resolution recommending that member-States of
the OAS take all measures, individually and collectively including
the use of armed force, to ensure that Cuba cannot continue to
receive from the Sino-Soviet powers military, material and related
the Treaty, in case of such a threat, the Organ of Consultation (composed iif the
foreign ministers of all the member-Stales) is supposed to agree on the proper
defensive measure to be undertaken. Under ArL. 8, the use or the "armed force"
is listed down as one of the possible measures which could be adopted.
"Secretary-General U Thant was inslrumenlal in Ihe rapprochement be-
tween the Premier and the U.S. President.
ao
Covey Oliver, "International Law and the Quarantine of Cuba." A . J . I . L .
April 1963, p. 376.
THE FIRST F U N D A M E N T A L RIGHT: T H E RIOHT OF EXISTENCE 161
supplies which may threaten the peace and security of the Conti-
31
nent.
(2) The action authorized by the OAS was a defensive re-

sponse to the gravest external threat the Western Hemisphere
31
had ever faced. The measures authorized in the Rio Treaty for
defense purposes do not contravene the UN Charter, for when the
Charter was being framed, the existence of regional organizations
and their provisions for defense were precisely discussed and
33
implicitly allowed by the adoption of Art. 51(1) of the Charter.
(3) The quarantine was limited to a specific nuclear threat

to the hemisphere, was to last only so long as the missile ships
34
might continue, and operated under directives for diversion rather
35
than more drastic action, except in case of resistance to diversion.
(4) Not being obligatory, it could not be regarded as an
"enforcement action" requiring prior consent of the Security Council
36
under Art. 53 of the UN Charter.
(5) It was initiated as a measure of individual and collec-
tive self-defense in response to a "threat of force" amounting, under
37
present conditions to an "armed attack," and was, therefore,
permissible under Art. 51 of the Charter, prior to submission to
the United Nations as normally required by Art. 37 of the Charter.
(6) Considering history and experience, it is almost im-
possible to get an authorization for regional action from the Security
38
Council (with Russia almost sure to exercise its veto power).
"See Leonard C. Meeker, "Defensive Quarantine and the Law," A.J.I.L..

July. 1963. p. 517.
"Covey Oliver, toe. cit.
"Leonard C. Meeker, op. cit., pp. 518-519.
""Diversion" here mean6 the turning away from their destination or the
ships carrying the prohibited war materials.
"•'"Covey Oliver, loc. cit.
"Quincy Wright, "The Cuban Quarantine." A.J.I.L., p. 544.
;
• Cons)der the possibilities of swift nuclear extinction.
•"See Leonard C. Meeker, op. cit., pp. 519-520. Meeker writes:
"The unfolding of history has shown a lack or agreement among the Secu-
rity Council's permanent Members such that the Council has been disabled from
performing its functions as originally intended. This has, of necessity, thrown an
unexpected responsibility onto other mechanisms provided in the Charter. A dozen
years ago, the General Assembly's adoption of the Uniting for Peace Resolution
signalled a stage in the constitutional development of the United Nations. The
Cuban quarantine of 1962 marked an assumption of increased responsibility by
(7) Finally, under the declaration of principles in the Char-

ter it would seem that the threat or use of force is prohibited only
when such is inconsistent with the purposes of the United
39
Nations.
Upon the other hand, several experts on the subject, among
them Prof. Quincy Wright, have expressed grave doubts as to the
legal feasibility of the quarantine. The arguments against the
legality of the quarantine may be summed up as follows:
(1) The quarantine was really unilateral on the part of the
United States. While it is true that the resolution of the OAS
Organ of Consultation was made a few hours BEFORE America
thru President Kennedy formally proclaimed the quarantine on
October 23, 1962, still the resolution was passed only A F T E R
Kennedy had announced on October 22, 1962 the intent of the
United States to effect such a quarantine. (Thus, Wright says that
the OAS was hardly in a position to render free judgment, the
0
quarantine having become practically a fait accompli).*
(2) The argument that the UN Charter inferentially allows
regional organizations to act in accordance with their respective
charters even when some provisions thereof militate against the
Charter, would seem to be pointless when it is remembered that
under Art. 51 (1) of the Charter said provisions are valid only if
"consistent with the purposes and principles of the United Nations."
(3) The "limited duration" of a violation of the UN Charter
is no excuse for its deliberate disregard. Where the Charter fails
to distinguish, individual States cannot distinguish.
(4) Under Art. 53 of the U N Charter, in general, "no en-
forcement action shall be taken under regional arrangements or by
regional agencies without the authorization of the Security Council."
It will be noted that the phrase "enforcement action" is not qualified:
hence, it may refer to actions which are obligatory as well as to
actions which are merely recommendatory. The authorization
granted by the OAS to the United States with respect to the Cuban
quarantine falls under the second group. To say that the au-
a regional organization. Accompanying a decline in the affirmative authority of

the Security Council, it should not be surprising to find also some contraction in
the Council's negative authority to preclude action by other bodies."
™lbid., p. 623.
*"Quincy Wright, op. cit.. p. 556.
thorization of the Security Council is required only for the first

group is to violate the principle of peaceful settlement of disputes.
(5) The argument that resort to forcible means could be
allowed under Art. 51 of the UN Charter which expressly recog-
nizes the right of individual and collective self-defense is illusory
for two reasons: Under Art. 51, there ought to be an "armed at-
tack" (this was never present in the Cuban case.) If we were to
broaden the scope of "armed attack" to the imminent threat of a
nuclear or atomic first strike (the doctrine of "anticipatory, col-
41
lective self-defense"), this would indubitably run counter to the
express provision of Art. 51, and in addition, would go against Art.
2 (4) which requires UN members to refrain from threats to the
peace, and Art. 33 which purposively requires "peaceful means" to
settle disputes "the continuance of which is likely to endanger the
maintenance of international peace and security." In point of law,
therefore, mere threats cannot justify a unilateral right of military
self-defense."
(6) The moral impossibility of compliance with an express

provision in a treaty is ordinarily not a valid argument for diso-
bedience thereto, particularly when no previous attempt at such a
compliance has been made.
(7) Even if the intent is consistent with the principles and
purposes of the United Nations, the threat or the use of force
should never be considered lawful, except when duly authorized
under the Charter. To rule otherwise would be to contradict the
very aims of the World Organization. The world is preeminently
fortunate Russia was willing when it said "alt's well that ends
well," but suppose the Soviets had insisted?
The Cuban crisis was considered by the UN as officially closed

when on January 7, 1963, UN Secretary-General U Thant received
a letter jointly signed by the United States and the Soviet Union
stating that their governments had effected a full settlement of
43
the dispute. It is true that one month later there were reports of
continuing Soviet military build-up in Cuba, but these reports were
dismissed by both President Kennedy and Premier Khrushchev on
"Covey Oliver, op. eit.. p. 375.

"Quincy Wright, op. eit.. p. 560.
" T h e joint letter bore the signatures of Adlai E. Stevenson, chief US del-
egate to Ute UN and Vastly V. Kuznetson, Soviet Deputy Foreign Minister.
February 7 and 9 respectively. The American President remarked:

"It may be that there are hidden away certain missiles. But they
are going to have to be erected, and we have continued complete
surveillance." On his part, the Russian head of state asserted that
Russia did not have to have arms of nuclear warfare in Cuba "for
we can reach anyone we want with our own weapons from our own
4l
territory. "
MILITARY PARAMETERS OF POWER

Analysts of international affairs increasingly have recognized
the importance of economic strength in determining a nation-State's
power potential. (Daniel S. Papp, Contemporary International
Relations, 1988, p. 365).
Observe that during the 1970s, international actions in-
creasingly recognized that economic capabilities were a major
parameter of power in the international arena. During the 1980s,
with the uncertainties brought about by the complete breakdown
of the Bretton Woods system, this recognition occupied an even
more central place in the consciousness of international decision-
makers. Given, however, the relational and contextual nature of
power, one must remember that economic capabilities alone do not
determine an actor's power potential. Therefore, despite the once-
again-acknowledged importance of the economic parameters of
power, economic capabilities remain only one of a number of
measures of power in the international arena. (Ibid., p. 392).
Take the case of the military parameters of power. As ob-
served thus by Karl von Clausewitz in his classic early 19th century
analysis of political-military affairs, aptly-titled, On War: "|W|ar
is a continuation of politics by other means."
In short, "[djuring war or peace, the military capabilities of
international actors make up a significant portion of an actor's
power potential." (Papp, op.cit., p. 395). "Subjectively, the power
that an actor derives from its military capabilities is determined
by its own and others' perception of capabilities. No one knows for
certain if the UN would have the command, control, and commu-
nication abilities to launch simultaneously a hundred or more of
[its] ICBMs, but the perception exists that | i t | doles). At least in
*"Cf. The World Almanac, 1964, p. 92.

part because of this, the U.S. [is) recognized as [a] superpower."

(Ibid., p. 396).
Of course, military capabilities do not translate directly into
increased power potential. Powerful weapons used unintelligently
add little to a State's power. (Ibid., p. 431). The case of the Soviet
involvement in Afghanistan is a practical manifestation of this
new political thinking, i.e., that whatever the causes of conflicts,
they cannot be eliminated by military means. (See Alexander A.
Bessmertnykh, "Foreign Policy — A New Course," Perestroika
Annual: Two, Futura: London, 1989, p. 55).
The classic case, of course, was the triumph of democracy

during the mid-'80s in the Philippines. In Manila, Cory Aquino
was chosen over Marcos after "people power" in the streets forced
him to call free elections. Clearly in this situation, the might of
Marcos' military was "no match" to the citizen's cry for his "blood."
Recall too that late in 1989, President Bush ordered American jet
aircraft to patrol the skies over Manila to keep anti-Aquino military
rebels from victory in their coup attempt. Bush's action raised the
interesting question of whether it was proper for the U.S. to inter-
vene militarily in a foreign country in the "good" cause of defending
democracy. (Tad Szuls, Then and Now: How the World Has Changed
Since WW II [19901 p. 488).
COLLECTIVE SELF-DEFENSE
In the not-so-distant past, regional blocs both on the part of
the Western democracies and on the part of Russia and her "cap-
tive States" have been formed ostensibly for collective self-defense.
On the part of the Democracies we have:
(1) The N A T O — North Atlantic Treaty Organization;
(2) The C E N T O — The Central Treaty Organization (for-
merly the Baghdad Pact or the METO — Middle East Treaty
Organization);
'3) The A N Z U S — That which was organized by Australia,
New Zealand, and the United States in a Treaty signed at San
Francisco on Sept. 1, 1951 (also known as the Pacific Security
Treaty); of indefinite duration, each signatory agreed to 'act to
meet the common danger' in the event of attack on either metro-
politan or island territory of any one of them, or on their armed
forces, public vessels or aircraft in the Pacific.
INTERNATIONAL LAW AND WORLD POLITICS
In 1951, the U . S . - J A P A N E S E S E C U R I T Y T R E A T Y had

somewhat alarmed Australia and revived wartime apprehensions
about Japan. A N Z U Z reassured Australia and New Zealand, and
was the first collective security treaty in the Pacific. In reality,
ANZUS was aimed less at defense against a rearmed Japan than
concerns over Communist expansionism in Southeast Asia. The
fall of China in 1949, and the outbreak of the K O R E A N W A R in
1950, created considerable anxiety in Australia and New Zealand.
The treaty has come under severe strain since New Zealand adopted
a non-nuclear defense policy in 1986.
(4) The organization created by the "Treaty of Economic,
Social and Cultural Collaboration and Collective Self—Defense"
signed at Brussels on March 17,1948;
(5) The European Defense Community — the B E N E L U X
(Belgium, Netherlands, Luxemburg); and
(6) The SCEN — Society of Captive European Nations (a
secret underground society formed by States suffering under Com-
munist oppression — and designed to one day overthrow the
Communists).
THE WARSAW PACT (now TERMINATED)

On the part of Russia and the Iron Curtain (Satellite Europe),
we have the Warsaw Pact of May 14, 1955 designed for collective
self defense of the Communist countries against the alleged ag-
gression of Western Democracy. The following signed the Warsaw
Pact:
1. Bulgaria
2. Albania
3. Czechoslovakia
4. East Germany
5. Hungary
6. Poland
7. Rumania
8 Russia (USSR)
It should be noted that Yugoslavia under Marshal Tito was
not a signatory to the Warsaw Pact.
Please bear in mind also that between Red China and Rus-
sia, a "Treaty of Friendship, Alliance and Mutual Assistance" (the
Si no-Russian Alliance) exists. This treaty was entered into on

February 14, 1950.
Nevertheless, March 31, 1991 marked the date the Warsaw
Pact was laid to reBt. Harry Schleichter of Stuttgarter Nachrichten,
wrote:
"Not a drum was heard, not a funeral note as its corpse
to the ramparts was carried. At a subdued ceremony in Bu-
dapest, foreign and defense ministers of the Warsaw Pact
States formally agreed to wind up the pact's military struc-
tures at the end of March.
"Founded in 1955 as a counterpart to N A T O when the
Federal Republic of Germany joined the North Atlantic pact,
the Warsaw Pact, which was to be based on friendship, coop-
eration and mutual assistance, has passed away quietly at
the age of 36. Next to no-one, other than a handful of Soviet
generals, is likely to have shed a tear on its deathbed. Its
heirs are likelier to rub their hands in satisfaction or glee —
even though the pact's political structure is to be maintained
until the beginnings of 1992. The signing of the military death
certificate merely followed multilaterally what began at the
end of 1989 in Central and Eastern Europe when communist
systems in countries bordering on the Soviet Union colapsed.
The evaporation of ideological and political points held in
common and the demise of (East Germany) deprived the
Warsaw Pact of any sense or reason for its survival. Its true
role was that of a means of imposing Soviet discipline on
unruly members, as was seen soon after it founded, during
the Hungarian uprising.
"Abolition of the Warsaw Pact is unlikely to be the last

move in the process of security and military reorganization in
Central and Eastern Europe. The political vacuum that has
risen in Eastern Europe with the demise of the one pact
seems sure to trigger further on the subject."
THE NATO
The North Atlantic Treaty Organization ( N A T O ) is the
principal result of the North Atlantic Pact, a treaty signed at
Washington on April 4, 1949 among the various nations of the
North Atlantic Area, where the parties agreed in Art. 5 that an
armed attack against one or more of them in Europe or in North
America shall be considered an attack against all of them. Con-

sequently, each signatory will assist the State or States attacked
in restoring and maintaining peace and security in the North
Atlantic Area — even thru the use of armed force.
Art. 5 states further that "any such armed attack and all
measures taken as a result thereof shall immediately be reported
to the Security Council. Such measures shall be terminated when
the Security Council has taken the measures necessary to restore
and maintain international peace and security."
Note that this is in accordance with Art. 51 of the UN Charter.
Interestingly, Art. 10 allows accession by any other European
State — if unanimously invited by the parties. It should also be
observed that under Art. 13 — "after the Treaty has been in force
for 20 years, any Party may cease to be a party one year after its
notice of denunciation has been given to the Government of the
United States of America, which will inform the Government of
the other Parties of the deposit of each notice of denunciation.
However, France under President Charles de Gaulle decided to
withdraw from the Treaty even before the end of said 20 year
period."
The N A T O , of late, has drafted a 30-page document which

contains military guidance for implementing the new strategy
agreed at a ( N A T O ) summit in Rome in December 1991. The new
strategy allows the use of nuclear weapons first to end a war,
although atomic weapons should be used selectively to hit military
targets, preferably on enemy territory. Known as MC-400, the
document recommends hitting high priority military targets, espe-
cially on an enemy's home territory, using either nuclear aircrafts
bombs or missiles launched from submarines or ships. For one,
conventional forces may not be enough to fend off an aggressor in
the future and that nuclear arms make the risks incalculable for
any attacker. Thereupon, nuclear arms should be used especially
in an initial strike, in a way that is constrained, discriminate, and
measured. The document, detailing NATO's military stratgey for
conventional and nuclear forces in the post-Cold War era and
approved by defense ministers, says the alliance now faces risks
from instability in a variety of areas, including the former Soviet
Union and the Middle East.
Accordingly, the alliance's much-reduced nuclear arsenal is

chiefly a political weapon, that the arms will remain under strict
political control and that the likelihood of their use is now very
remote with the end of East-West confrontation. And this could be
considered in a selective way to end a conflict, by convincing an
attacker that the cost of continuing the war would be too great.
Thus, the deterrent value of nuclear weapons continues to under-
pin NATO's entire strategy, geared to the defense of its 16-member
nations. N A T O has pledged to reshape its nuclear strategy after
the Warsaw Pact collapse and some elements have been changed
from the old policy of "flexible response" dating from the 1960s. In
fact, the alliance has agreed to withdraw and destroy all U.S.
short-range nuclear missiles and artillery shells in Europe, leav-
ing just 700 nuclear aircraft bombs on the continent. NATO has
also dropped rigid targetting plans for nuclear weapons. Moreover,
the new strategy strengthens the concept of political power control
over the arms and forbids their use to win on the frontline battle-
field, which the old strategy allowed as a way of dealing with a
massed attack from the Warsaw Pact (now defunct). That policy
caused huge problems in Germany, the Cold War frontline, where
a strong anti-nuclear movements has fluorished — partly because
of the knowledge that German towns and cities would be devas-
tated by short-range nuclear weapons.
Question: How can a country be the first to use nuclear weap-

ons as a last resort? Answer: The document says N A T O members
must continue to share the political burden of basing the weapons
and that all countries involved should take part in decisions to use
them. Countries where bombs are based or which have the aircraft
needed to deliver them include the U.S., Britain, Belgium, Italy,
Germany, Greece, Netherlands, and Turkey. Truth to tell, some of
the U.S. and British neclear bombs are almost obsolete, despite a
modernization program. Thus, nuclear weapons should be kept up to
date where necessary so they can hit a variety of targets at all ranges.
France, along with the U.S. and Britain, is the third NATO member
with nuclear arms, but it is independent on defense matters and not
involved in alliance defense planning.
Parenthetically, the N A T O and former Warsaw Pact foes, in

a partnership known as the North Atlantic Cooperation Council
(NACC), signed an agreement on June 5, 1992 setting limits on
the amount of non-nuclear military weaponry that each country
(on either side) may possess. As reported thus by William Drozdick
of the Washington Post Service (cited in the International Herald
Times Tribune, June 6-7, 1992, pp. 1,5): "The treaty was originally
signed in Paris in November 1990 but languished because of the
collapse of the Soviet Union. But the deadlock was broken in May
1992 when four former Soviet republics — Russia, Ukraine, Belarus
and Kazakhstan — resolved a protracted dispute on how to divide
up the vast arsenal left over from the days of the Communist
empire. The conventional arms accord follows another pact be-
tween four former Soviet republics on how to apply the terms of
the U.S.-Soviet strategic arms agreement to nuclear weapons still
on their territory. They approved plans to destroy nearly 40% of
long-range nuclear weapons and carried by missiles, bombers and
submarines. In the case of the conventional arms deal, Russia will
be allowed to keep about half the 13,150 tanks, 13,175 artillery
pieces; and 20,000 armored vehicles under the accord."
MIDDLE EAST SCENARIO
Like the bolt of summer lightning that suddenly illumines

the evening landscape, the January 1993 Iraqi invasion of Kuwait
again has revealed much about what may lie ahead. The Iraqi
crisis had demonstrated that the Middle East will be of critical
importance in the post-Cold War era. There are reasons beyond
the threat of the oil fields that will ensure this.
Five reasons are given by Steven L. Spiegel:
First, the Middle East will continue to be a place where the
most advanced non-nuclear weapons are deployed and at times
employed. Chemical weapons, long-range ballistic missiles, and
the most advanced jets and tanks have already been introduced
into the region. Nuclear weapons may soon be added.
Second, the spread of Islamic fundamentalism, the collapse of
Soviet authority throughout its empire, and the prevalence of weak
regimes from the region to South Asia will be sources of instability
and international conflicts regardless of Iraq's future role in the
region. The Soviet Union and the Indian-sub-continent [is now on
its way to disintegrating] into a series of newly-independent States,
from Georgia in the West to Kashmir in the east, adding 50 mil-
lion Muslims and other peoples to the Middle East. In particular,
if Armenia and Azerbaijan become independent, the conflict between
them will have considerable ramification for the Middle East, es-
pecially for Iran and Turkey.
Third, the U.S. is going to require a back-up area in the wake

of the negotiated withdrawal of the bulk of its troops from the
THE FIRST F U N D A M E N T A L RIGHT: T H E RIGHT OF EXISTENCE. 171
European theater. The lose of North Atlantic Treaty Organization

( N A T O ) baaes, because of agreements with the Soviet or domestic
opposition in particular countries, will add to this pressure. The
Southern Mediterranean littoral will thereby become critical as a
contingency area in case of a reversal of Soviet policy, a deterio-
ration in the evolution of a democratic-united Germany, or a crisis
in Eastern Europe.
Fourth, post-Cold War administrations will have to decide
whether to continue and expand strategic cooperation with Israel,
including collaboration in intelligence, anti-terrorism, and anti-
drug efforts; the utilization of Israeli port facilities at Haifa; the
refinement and exercising of desert fighting skills; maintenance of
American equipment, prepositioning of material, and upgrading
of older equipment; joint Mediterranean exercises; food, R&R, and
medical services for U.S. troops stationed in the area; and research
and development conventional weapons — all these will likely
continue.
In fine, Israel is a democratic model for many of the govern-

ments in Eastern Europe and the Third World struggling to break
loose from the shackles of communism and authoritarianism. This
new attractiveness i6 confirmed by the country's sudden popular-
ity in several Eastern European countries. A senior break between
Washington and Jerusalem now would be strange indeed, running
counter to the American commitment, implicit if not explicit after
the Cold War ideological triumph, to support the evolution of
democratic government wherever they exist or may arise. (See
Yossi Melman, "Ha'aretz" (Some Sensitive Spots: The Israeli
Question), acted in World Press Review, Dec. 1991, p. 14).
THE SEATO (now TERMINATED)
The Southeast Asia Treaty Organization (SEATO) was the

regional bloc formed by the Manila Pact or the Southeast Asia
Collective Defense Treaty of September, 1954. Under the terms of
the treaty, particularly Art. IV thereof, an aggression against any
of the signatories (or against any other State or territory that
might thereafter be designated by common agreement among them)
would be considered as endangering their peace and safety. In
such an event, therefore, they obligated themselves to act to meet
the common danger in accordance with their constitutional proc-
ess. In case of threat other than by armed attack, or in case any
fact of situation endangered the peace of the area, the Parties

were supposed to consult with one another immediately to agree
on the measures which should be taken for the common defense.
It will be observed that the terms of the N A T O are more
vigorous — an attack against one is an attack against all; under
the SEATO the common danger will be met in accordance with
"constitutional processes."
The members of the SEATO while it existed were the following:
(1) Australia
(2) France
(3) Great Britain
(4) New Zealand
(5) Pakistan
(6) Philippines
(7) Thailand
(8) United States
Under Art. V I I of the Treaty, any other State in a position to
further the objectives of the Treaty and to contribute to the security
of the area might, by unanimous agreement of the Parties be in-
vited to accede to the Treaty. Any State so invited might become
a Party to the Treaty by depositing its instruments of accession
with the Government of the Republic of the Philippines. The latter
should inform each of the Parties of the deposit of such instrument
of accession.
After some years, however, the S E A T O dissolved itself.
THE CENTO (now TERMINATED)

The C E N T O was the Central Treaty Organization formed in
the Middle East for the purpose of collective self-defense against
the threat of Communism. The members were: Turkey, Iran, Pa-
kistan, and Great Britain. The U.S. later joined as an associate
member. The original name was the Baghdad Pact of 1955 which
organized the METO (Middle East Treaty Organization). The former
Baghdad Pact had all the present members of the C E N T R O plus
Iraq. The Treaty provided for mutual cooperation for security and
defense but had no central command structure for forces allocated
to it. The fall of the Shah in 1979 led to the withdrawal of Iran,
THE FIRST F U N D A M E N T A L RIGHT: THE RIGHT OF EXISTENCE 173
followed by the other regional members, and CENTO became de-

funct.
QUERY
Do these alliances really protect? Please observe, for instance, that
while the Warsaw Pact protects the Russian satellites from the
45
United States, no such protection is offered against Russia itself.
WHY ALLIANCES EXIST

In the opinion of then Philippine Foreign Affairs Secretary
Felixberto Serrano, "the members of the UN have implicit faith in
each other's desire for world peace. But at the same time they
realize the force of human susceptibility to committing mistakes,
some of which could be in the form of armed aggression inspired
by a miscalculation of the strength of the would-be victim and its
determination to resist. The danger posed by this possibility has
made some members see the necessity of taking measures calcu-
lated to give maximum feeling of safety either thru mutual protec-
tion or by an outright combination of strength. Quite a number of
nations have chosen to stay away from military alliances, firm in
their conviction that whatever protection might be afforded them
by such alliances cannot offset the risk of being involved in a war
not essentially theirs. On the other side are those who believe that
a nation's policy of non-entanglement in military alliances does
not constitute an impenetrable wall on the path of a belligerent if
such path is seen as the shortest and easiest way to a military
objective. [For one,] the Philippines believes that there is strength
48
in union and there is security in collective strength."
DISARMAMENTS
Quite a number of significant agreements for the limitation
and control of armaments have been concluded, namely:
i. the Antartic Treaty of 1959
2 the Limited Test Ban Treaty of 1963
4
''See Jacobini, International Law, p. 66.
'"Secretary (then) of Foreign Affairs Felixberto Serrano, "Alliances and
Why They Eaist," Far Eastern Law Review. Vol. V I , No. 4. January. 1959,
PP 435-436.
3. the Outer Space Treaty of 1967

4. the Treaty of Tlatelolco of 1967
5. the Nuclear Non-Proliferation Treaty of 1968
6. the Seabed Treaty of 1971
7. the Biological Weapons Convention of 1972
8. the Chemical Weapons Convention of 1993
NON-PROLIFERATION OF NUCLEAR WEAPONS

The need to halt the spread of nuclear weapons has been
evident to many people from the early days of the nuclear age. The
very first UN General Assembly resolution in January 1946 envis-
aged the elimination of such weapons from national arsenals.
(Joseph Goldblat, Non-Proliferation: The Why and the Wherefore,
Stockholm International Peace Research Institute, 1985, p. 3).
The realization within the international community that a
wider proliferation of nuclear weapons would pose a threat to world
security has led to the development of a non-proliferation regime,
encompassing myriad rules and institutions both national and
international. Among these, the International Atomic Energy
Agency ( I A E A ) , with its two elaborate systems of nuclear safe-
guards, fulfills an essential practical role. The pivotal place, how-
ever, belongs to the Treaty on the Non-Proliferation of Nuclear
Weapons ( N P T ) , concluded in 1968, with a view to preventing the
addition of new nuclear weapons
The essential non-proliferation undertakings are contained

in the first two articles of the N P T . Article I places the nuclear
weapons States under the obligation not to transfer "to any recipi-
ent whatsoever" nuclear weapons or other nuclear explosive de-
vices or control over them, and not in any way to "assist, encour-
age, or induce" any non-nuclear weapon-State to manufacture or
acquire such weapons or devices. Article II pledges the non-nu-
clear weapon States, not to receive nuclear weapons or other nu-
clear explosive devices or control over them, as well as not to
manufacture them or receive assistance in their manufacture.
According to Article I I I , safeguard agreements must be con-
cluded within prescribed time-limits. However, for as many as 40
parties, such agreements had not come into force by the end of
1984. At any rate, sageguards should enable detection of diversion
of "significant" quantities of nuclear material from peaceful activi-

ties to the manufacture of nuclear explosive devices, as well as
deterrence of diversion by creating the risk of "timely" detection.
Nonetheless, the N P T requires safeguards to be implemented in
such manner as to avoid hampering the economic or technological
development of the countries party to it or international cooperation
in the field of peaceful nuclear activities.
Article IV of the N P T reaffirms the right of parties to develop
nuclear energy for peaceful purposes in conformity with Arts. I
and II of the Treaty and obligates those parties in a position to do
so to contribute to such efforts in non-nuclear weapon-States. Under
Article V of the N P T , the "potential benefits" of peaceful applications
of nuclear explotions are to be made available by the nuclear
weapon-parties to non-nuclear weapon parties under "appropriate"
international observation. This promise was made in exchange for
the renunciation by the latter States of the right to conduct any
nuclear explosions, because there is no way to assure that a nu-
clear explosion has no military function.
Article VI represents a counterweight to the obligations as-

sumed by the non-nuclear weapon States. Article V I I of the N P T
affirms the right of States to conclude regional treaties in order to
assure the "total" absence of nuclear weapons in their respective
territories. Thus far, the only such treaty concluded to constitute
a nuclear weapon-free zone in a populated area of the world is the
1967 Treaty of Tlatelolco prohibiting nuclear weapons in Latin
America. However, the ultimate goal of this Tlatelolco Treaty, that
of military denuclearization of the whole Latin American region,
has not yet been achieved.
In Article V I I I , the N P T provides for periodic conferences to

review the operation of the Treaty in order to assure that its
purposes and provisions are being realized. For this purpose, three
conferences have already been made (1975, 1980, and 1985).
The N P T is unique in the sense that is prohibits the acqui-
sition by an overwhelming majority of States of the most destructive
retention of the same weapons by a few. However, the position of
the non-nuclear weapon parties has always been to consider the
NPT not as end in itself, but as a transitional measure aimed at
facilitating nuclear disarmament. (Goldblat, supra, p. 4).
Unlike many other multilateral arms control agreements, the
NPT is not of permanent duration. In 1995, 25 years after its
entry into force, a conference is to be convened to determine its

future. The parties will then decide whether the Treaty should
continue in force indefinitely, or be extended for an additional
period or periods of time. "But nuclear disarmament must extend
beyond the old cold-war adversaries if the U.S. and its allies want
to renogitate the N P T — or the founding statute of the IAEA —
to include greater powers to search installations and real pun-
ishment for treaty breakers, they must secure multilateral agree-
ments rather than impose their will unilaterally. For a world free
from the threat of further spread of nuclear weapons, that has to
be a concession worth making." (Tom Wilkie, "Nuclear Prolifera-
tion," The Independent of London, cited by World Press Review,
December 1991, p. 10).
— oOo —
Chapter 6
THE SECOND FUNDAMENTAL RIGHT:
THE RIGHT OF SOVEREIGNTY
AND INDEPENDENCE
DEFINITION OF TERMS AND DISTINCTIONS

Sovereignty is the supreme power of the State to command
and enforce obedience; it is the power to which, legally speaking,
1
all interests are practically subject and all wills subordinate. Indeed
Prom the point of view of national law, it is in a sense absolute
control over a definite territory.
Independence, upon the other hand, is freedom from external
control in the conduct of external and internal affairs.
Sovereignty is viewed from within (internal) — independence
is viewed from without (external). Otherwise stated, if the sov-
ereignty of a country within its territory is more or less recognized
1
by other States, said country is referred to as independent.'
The essential attributes of sovereignty are:
I'f) perpetuity or permanence (so long as the Stale continues
to exist); *
( 2 ) ' exclusiveness or impenetrability (this means that gen-
erally all inhabitants, residents, and transients within a StaLe
are subject to the exclusive jurisdiction of said State; no other
State may exercise jurisdiction. This rule is subject to certain ex-
ceptions);
'(iarner. Political Science, pp. 238-239.

•'Hi'c Ki'nwick, International Law, p. 146.
177
(3) inalienability (sovereignty as such cannot be bargained

away; in other words, a State ceaBCB to be sovereign from the
moment it alienates such sovereignty);
(4) unity (authority is indivisible: try to divide authority
and the result will be inevitable chaos); and
(5) comprehensiveness — (sovereignty, subject to certain
exceptions, deals with all persons — natural or juridical — and
with all property — artificial or natural — within the territory).
QUERY: IN THE INTERNATIONAL LEGAL ORDER, IS A STATE

REALLY SOVEREIGN AND INDEPENDENT?
If by "sovereign*" we mean an unrestricted power to do what-
ever the State pleases, whether it be right or wrong, the "sover-
eignty" of a State \* r»rt.»inly incompatible with international law.
The latter by imposing obligations on States necessarily restricts
3
the power of the former. Hence, sovereignty, as the term is un-
derstood in international law (as distinguished from the realm of
national law), cannot be considered in its original sense of su-
preme authority. Kelsen aptly observes: "As subjects of interna-
tional rights, the States are subjected to international law, even if
international law is considered to be part of national law. Here,
the States as subjects of rights, are 'sovereign' as the individual is
'sovereign' under national law."*
The sovereignty and independence, therefore, of a State

can not be considered absolute: certain restrictions enter into the
picture —
(1) limitations imposed by the international scheme of things
(the very nature of membership in the Family of Nations), and
(2) limitations imposed by treaty stipulations.
As aptly put by the famous American President, John F.
Kennedy
"Today, no nation can build its destiny alone. The age of
self-sufficient nationalism is over. The age of I N T E R D E -
P E N D E N C E is here."
3
Kelsen, Principle* of International Law, p. 113.
4
Kel»en, op. cit., p. 156.
THE SECOND FUNDAMENTAL RIGHT: 179
THE RIGHT OF SOVEREIGNTY A N D INDEPENDENCE
IMPLICATIONS FROM SOVEREIGNTY AND

INDEPENDENCE
Subject to the restrictions mentioned in the next preceding
paragraph, the sovereignty and independence of a State:
(1) enable it to determine its own form of government, draft
and approve its own constitution, enact and administer its own
laws;
(2) allow it to enter into treaties and foreign relations on its
own accord (even foreign alliances may be entered into, unrestricted
by the national law of some other State);
(3) make possible its own determination of national policies
with respect to national defense, natural resources, immigration,
currency, and the like; and
(4) should make it free from intervention on the part of
other States.
INTERVENTION IN GENERAL
,0ne of the greatest dangers to continued sovereignty and
independence is,intervention by other States. Intervention has been
defined b y ^ j a w r e n ^ a s "the interference by one State or group of
States wit.htfTe~prnceedings of another State, endeavoring to .com-
pel the latter to do something which if left to itself it would not do,
or to refrain from doing something which if left to itself it would
do."* Upon the other hand, Hall defines it as that which "takes
place when a State interferes in the relation of two other States,
without the consent of either of them, or when it interferes with
the domesiic_.affairs. of another State imspective of the will of the
latter, for the purpose of either maintaining or altering the actual
6
condition of things within."
KINDS OF INTERVENTION,
W) Internal and External Intervention.
(a) Internal intervention — is the interference by one
State in the purely domestic affairs of another State.
s
Lawrence, Principle* of International Law, p. 120.
"Hall, International Law, p. 297.
(bK" External intervention — is the interference by one

State in the foreign relations of another State.
(2) Individual and Collective Intervention.
(a) Individual intervention — exists when only one
State interferes.
(b) Collective intervention — exists when two or more
States interfere as a group.
(3) Diplomatic and Armed Intervention.
(a) Diplomatic intervention (also called "intercession")
— is interference thru diplomatic channels.
(b) Armed (sometimes called "punitive") intervention
— intervention thru the use of armed forces. It would seem
that today armed intervention is unlawful under at least two
(2) provisions of the UN Charter:
(1) Art. 2, par. 3 — "All members shall settle their
international disputes by peaceful means in such a
manner that international peace and security and jus-
tice are not endangered."
(2) Art. 2, par. 4 — "All members shall refrain in
their international relations from the threat or use of force
against the territorial integrity or political independ-
ence of any State, or in any other manner inconsistent
with the purposes of the United Nations."
In recent years, however, the principle of non-intervention
has been undergoing reexamination. According to some observers
of the international scene, if a State will not intervene in an
unequal conilict, its "neutrality" in effect tends to favor the stronger
belligerent.
A QUESTION OF INTERVENTION
The case concerning military and paramilitary activities in
and against Nicaragua (Nicaragua v. United States of America,
International Court of Justice, Registry of the ICJ Communique
86/8, June 27, 1986), tackles a very important issue of interna-
tional law — intervention.
The facts are as follows: The U.S. has acted against the
Republic of Nicaragua, in breach of its obligation under customary
THE SECOND F U N D A M E N T A L RIGHT:
international law not to intervene in the affairs of another State,

by training, arming, equipping, financing and supplying the con-
tra forces or otherwise encouraging, supporting, and aiding mili-
tary and paralimitary activities in and against Nicaragua.
Also, the U.S. in 1983 produced a manual entitled Opera-
ciones sicologicas en guerra de guerillas, and disseminated it to
contra forces, and in the process, encouraged the commission
by them of acts contrary to general principles of humanitarian
law.
Because of the injury caused to Nicaragua by the breaches of
obligations under customary international law, the U.S. is asked
to make reparation by way of damages to the injured party.
According to the International Court of Justice, the U.S. is
guilty of intervention in the affairs of Nicaragua. Conversely, the
principle of non-intervention involves the right of every sovereign
State to conduct its affairs without outside interference. Expres-
sions of an opinio juris of States regarding the existence of this
principle are numerous. This principle, stated in its own juris-
prudence, is reflected in numerous declarations and resolutions
adopted by international organizations and conferences in which
the U.S. and Nicaragua have participated.
As to the content of the principle in customary law, defined

are the constitutive elements which appear relevant in this case:
a prohibited intervention must be one bearing on matters in which
each State is permitted, by the principle of State sovereignty, to
decide freely (e.g., the choice of a political, economic, social and
cultural system, and formulation of foreign policy). Intervention is
wrongful when it uses, in regard to such choices, methods of coer-
cion, particularly force, either in the direct form of military action
or in the indirect form of support for subversive activities in an-
other State.
On the question whether, if one State acts toward another in

breach of the principle of non-intervention, a third State may
lawfully take action by way of countermeasures which would
amount to intervention in the first State's internal affairs, surely
this would be analogous to the "right of self-defense" in the case
of armed attack, but the act giving rise to the reaction would be
lees grave, not amounting to armed attack. Under international
law in force today, StateB do not have a right of "collective" armed
response to acts which do not constitute an "armed attack." Whether
self-defense be individual or collective, it can only be exercised in

response to an "armed attack." This is to be understood as meaning
not merely action by regular armed forces across an international
border, but also the sending by a State of armed bands on to the
territory of another State, if such an operation, because of its scale
and effects, would have been classified as an armed attack had it
been carried out by regular armed forces.
The concept of "armed attack" does not include assistance to
rebels in the form of the provision of weapons or logistical or other
support. In customary international law whether of a general kind
or that particular to the inter-American legal system, there is no
rule permitting the exercise of collective self-defense in the absence
of a request by the State which IB a victim of the alleged attack,
this being additional to the requirement that the State in question
should have declared itself to have been attacked.
In short, the justification of collective self-defense maintained

by the U.S. in connection with the military and paramilitary ac-
tivities in and against Nicaragua iB rejected.
While the U.S. is guilty of producing and disseminating via
a manual encouraging acts contrary to law, there is, however, no
basis for concluding that any such acts which have been committed
are imputable to the USA as acts of the United States.
Anent the matter of reparation, the International Court of
Justice held that: "The Court is requested to adjudge and declare
that compensation is due to Nicaragua, the quantum thereof to be
fixed subsequently, and to award to Nicaragua the sum of $370.2
million as an interim award. After satisfying itself that it has
jurisdiction to order repatriation, the Court considers appropriate
the request of Nicaragua for the nature and amount of the re-
patriation to be determined in a subsequent phase of the pro-
ceedings. It also considers that there is no provision in the Statute
of the Court either specifically empowering it or debarring it from
making an interim award of the kind requested. In a case in which
one Party is not appearing, the Court should refrain from any
unnecessary act which might prove an obstacle to a negotiated
settlement. The Court, therefore, does not consider that it can
accede at this stage to thiB request by Nicaragua."
As a final point, the Court recalls to both Parties their ob-

ligations to seek a solution to their disputes by peaceful means in
accordance with international law.
T H E SECOND F U N D A M E N T A L RIGHT: 183
In the case at bar, the Court has already taken note of the
Contadora process, and of the fact that it had been endorsed by
the United Nations Security Council and General Assembly, as
well as by Nicaragua and the U.S. It recalls to both Parties to the
present case the need to cooperate with the Contadora efforts in
seeking a definitive and lasting peace in Central America, in ac-
cordance with the principle of customary international law that
prescribes the peaceful settlement of international disputes, also
endorsed by Article 33 of the United Nations Charter.
NATO-RUSSIAN UN INTERVENTION
IN BOSNIA
Many are of the belief that a NATO-Russian UN intervention

may finally end the war in Bosnia.
Considering the matter as one of urgent priority, Jane M.O.
Sharp and Vladimir Baronousky said:
"To end the war in Bosnia by effective military inter-
vention has become a matter of urgent priority. The diplomatic
effort has stalled for want of a credible enforcement plan,
little humanitarian aid is getting thu, and UN peacekeeping
forces with their open lines of communication and restrictive
rules of engagement can do nothing to solve the underlying
aggression.
"U.S. President Bill Clinton halsl argued that N A T O is

the only military organization capable of effective interven-
tion in Bosnia. France, however, blocked any action by N A T O
outside the immediate N A T O area, and Germany was un-
willing to provide troops. Even if those three N A T O powers,
who also 6erve a6 three of the five permanent members of the
UN Security Council, agreed to intervene under UN auspices,
without the Russians, the intervention could be seen by Serbs
as directed against them.
"In the worst case, this could provoke a strong reaction

in Belgrade, galvanizing what are now undisciplined Serbian
irregulars into a cohesive force that might perpetrate even
greats horrors in Bosnia than Serbs have already committed.
In other worda, the intervention might be closer to the Afghan
than Gulf model, triggering a determined and protracted
guerilla war. If this were (he result, not only would peace for
the Bosnians be harder to achieve, but the repercussions could
I N T E R N A T I O N A L LAW A N D WORLD POLITICS
take a dramatic turn in Russia itself, both domestically and

in terms of foreign policy. The conservative-nationalist fac-
tion of the political class could exploit the situation to make
the official line in Moscow openly anti-Western, even actively
supporting Serbs as new 'victims of agression' diplomatically,
economically, and militarily.
T h i s could take us back to the Cold War antagonisms
that the Russian foreign minister Andrei Kozyrev warned
against at the Conference on Security and Cooperation in
Europe Meeting in Stockholm in December 1992. Thus, the
sine quo non for a successful intervention, one that brings
both peace and justice, that will be effective in the short run,
appears to be the involvement of Russian forces with N A T O
forces on the ground. This is the best chance to discipline the
Serbian warlords — both by demonstrating Russian solidar-
ity with the West in the interest of an orderly settlement that
protects Muslim and other minority rights, and by reassuring
Serbs that they would be treated fairly.
1P]ropose[d], therefore, not [as] an exclusively N A T O force,

even though de facto, [where] the opera tjon[sl would be directed
from N A T O headquarters, [would be] a UN force under joint
Russian, U.S., British, and French command, with the kind of
liaison between units that we had in World War II.
"A first task of such an intervention force should be to
close the external borders of Bosnia to the influx of additional
Croatian and Serbian personnel. The intervention force should
then relieve Saravejo and all other areas currently under
siege by Serbian forces, disarm all warring factions, and re-
store order to reverse as far as posssible the effects of'ethnic
cleansing.' Ideally, it should also release all prisoners, set up
safe havens and deliver food, .fuel, and medical supplies.
"How many troops would be required and precisely how
they would operate is for military expertfs] to decide, but the
political goal should be clear: to restore and maintain order
in Bosnia until the different ethnic and religious groups there
could rebuild enough trust and confidence in each other to
work out their own modus vivendi. The best way to buy time
for this confidence-building [measure] would be to make
Bosnia a UN protectorate secured by multinational military
forces."
THE SECOND F U N D A M E N T A L RIGHT: 195
THE RIGHT OF SOVEREIGNTY AND INDEPENDENCE
THE SWISS BANK SECRECY Lfi/tt

With former Philippine President Ferdinand E. Marcos now
dead, recovery of his "soncealed fortunes" in Swiss banks is viewed
with caution. Reason: Swiss laws and judicial proceedings and the
nature and complexity of the Swiss banking system have made
virtually impossible to even ascertain the existence of an account;
for a numbered account does not bear the name of the depositor
As is now widely-accepted, Switzerland has formulated its

banking privacy into the most stringent law on the subject in the
world. Known as the 1934 Bank Secrecy Act, updated in 1971
(roughly equivalent to the Philippine Law on Secrecy of Bank
Deposits, Republic Act No. 1405 [as amended]), this law and the
practice of numbering accounts had made Switzerland both fa-
mous (and infamous) and wealthy, making several million persons
more confident about their financial resources.
' Article 49 of the law reads: "Whoever divulges a secret en-
trusted to him in his capacity as officer, employee, authorized
agent, liquidator or commissioner of a bank, as a representative of
the Banking Commission, officer or employee of a recognized au-
diting company, or who has become aware of such a secret in this
capacity, and whoever tries to induce others to violate professional
secrecy, shall be punished by a prison term not to exceed six months
or by a fine not exceeding 50,000 Swiss francs. If the act has been
committed by negligence, the penalty shall be a fine not exceeding
30,000 SwisB francs. The violation of professional secrecy remains
punishable even after termination of the official or employment
relationship or the exercise of the profession." -
The Swiss bank and commercial secrecy laws are based upon
the national policy that individuals and companies have the fun-
damental right to be free from invasion of privacy. Bank secrecy
is protected by Art. 47 of the Swiss Federal Banking Law. Com-
mercial secrecy, such as the obligation of a Swiss portfolio man-
ager to keep information about its client confidential, is founded
upon three (3) separate factors: (1) the right of the client to per-
sonal privacy under Art. 28 of the Swiss Civil Code; (2) the con-
tractual relationship between the Swiss company and its client
under Art. 398 of the Swiss Federal Code of Obligations; and (3)
several provisions of the Swiss Penal Code, such as Arts. 162 and
273, which make it a criminal offense to divulge secret informa-
tion or to intrude into the sphere of privacy without lawful au-
thority. Under these separate principles, the Swiss entity may not
divulge its client's business secrets, such as investment informa-

tion, the identity of the principals of the Swiss company, and details
of business arrangements with its client without the client's ap-
proval. A breach of this duty could result in civil and criminal
sanctions being imposed upon the Swiss entity. However, the law
provides for judicial I N T E R V E N T I O N under specific criteria in a
criminal case or in order for a foreign government, such as the
United States thru the agency of the Securities and Exchange
Commission (SEC), to obtain otherwise secret information. Quite
clearly, this privacy has attracted many persons of doubtful in-
tentions who have made the system work to hide illegal gains.
Thi6 had led to some highly-celebrated court cases, all of which
served to focus the world's attention on Swiss banking secrecy.
The most noteworthy case in recent memory involving Swiss

bank secrecy laws was the (United States') SEC's action involving
insider trading in Santa Fe International Corporation. (SEC v.
Certain Unknown Purchasers of the Common Stock of and Call
Options for the Common Stock of Santa Fe International Corp.,No.
81 Civ. 6553 [S.D.N.Y. 1981]). In the Santa Fe case, the SEC in-
voked the provisions of the U.S.-Swiss Mutual Assistance Treaty,
which went into effect in January, 1977 to obtain information it
needed regarding certain secret SwisB bank accounts. Although it
took two years for the SEC to obtain the information, the case
signifies that the SEC and Swiss authorities can cooperate in the
enforcement of U.S. Securities laws. The SEC does not freeze the
assets only of suspects whose identities it knows. In cases where
nominee accounts are thought to be concealing insider dealers, it
can petition U.S. courts to block the transfer of securities or cash
until their beneficial owner stepB forward. Given the risk of having
their gains frozen, insider traders in the U.S. now operate either
in their own names, brazenly and on a grand scale, or thru nominees
in small amounts, hoping that their deals will not attract SEC
attention. Suffice it to say, there are other movements on the
Swiss bank secrecy front, an important one within the country
(Switzerland) itself. For instance, an amendment to the Swiss
Federal Constitution calling for radical change in bank secrecy
laws has been set in motion. Known as the "Banking Initiative,"
it requires for the first time that: (1) banks provide tax information
on accounts upon request by Swiss authorities; (2) the authorities
make such information available to foreign investors probing
current export illegalities or tax evasion; and (3) banks give out
more details on transactions, hidden reserves, and operations
T H E SECOND F U N D A M E N T A L R I G H T 187
abroad. Perhaps the most that can be said about this range of
recent developments in banking secrecy, for positive or negative
reasons, out of legal or illegal motives, is a personal consideration
which subdued uniqueness must be colored, considering all rami-
fications of the changes above. Thus, for more legal details, the
following case citations regarding bank secrecy may be useful:
U.S. v. FNCB, 396 F.2d 697 (2nd Cir. 1968); U.S. v. Field, 532 F.2d
404 (5th Cir. 1976); and Arthur Anderson & Co. v. Finesilver, 546
F.2d 338 (10th Cir., Dec. 1, 1976).
In a deliberate move aimed at preventing abuses of the tight
Swiss banking secrecy laws, the Swiss Bankers Association ("the
Association") announced a series of measures. These include, inter
alia; (1) to curb the right of bank clients to hide their identity
behind lawyers; (2) to require banks to establish the identity of
anyone making a cash transaction at the counter worth more than
100,000 francs, against the current thresh hold of 500,000 francs;
and (3) to require banks to: (a) ascertain the identity of all clients
not acting thru lawyers and (b) pledge to not actively help capital
flight, or tax fraud. Thus, banks would face fines of up to 10
million francs in case of abuse. The steps follow renewed contro-
versy over the use of secret Swiss bank accounts prompted by
allegations that both Marcos and U.S. officials linked with the
arms-for-Iran scandal had accounts here. (At any rate, the meas-
ures put forth by the Association have been incorporated in the
Swiss Bank Secrecy Law, the latter having undergone its latest
amendment on Oct. 1, 1987.)
The bottomline is that secrecy definitely closes off one end of

the transaction and an illegal act, the other — the pattern of
almost every illegality involving Swiss (or, for that matter, any
other country's) bank secrecy. If the illegal mind is creative enough,
there is little that the various banks or brokers actually transfer-
ring funds can do to discover the illegality behind the transaction.
TESTING SWISS' SINCERITY

Since the Swiss courts, in light of recent developments, have
decided to relax the rules on ex-President Marcos' reported Swiss
accounts, the Swiss banks are obliged to release the money to the
Ramos government. So what is keeping them? Is it still the same,
old worn-out issue that the alleged offender (now deceased) was
not given "due process" by MB own government? That is, whether
the proceedings (on Marcos's ill-gotten wealth) in Manila are poli-
tically motivated, in which case assistance by the Swiss govern-

ment would be barred on whether the Ramos government guaran-
tees the Marcos family's fundamental rights as established under
the European Convention on Human Rights where Switzerland
"was one of the signatories.
Be it remembered that the Swiss Supreme Court, in its July
1, 1987 oral resolution, made it clear that Section 2 of the Swiss
Federal Act on Assistance on Criminal Matters requires a minimal
standard as required by the European Convention. Thus, even if
criminal cases are indeed filed against the Marcoses, the Conven-
tion requires, inter alia, an independent and impartial judiciary;
the presumption of innocence until proven guilty; the right to defend
one's self or thru counsel of one's choice; the right to confront
witnesses; and the right to enter the territory of one's own State.
The Swiss Supreme Court ruled that all these matters will still
have to be determined by the proper Swiss cantonal courts. In
other words, unless the Swiss courts, cantonal as well as federal,
are convinced that the fundamental and constitutional rights of
Marcos are respected, no cooperation from Switzerland will be
granted.
In the Marcoses' case vis-a-vis alleged Swiss accounts, the

Swiss banks may indeed have relaxed a little bit on their strict
secrecy rules. Nonetheless, while a freeze order has been made on
Marcos's Swiss bank assets since March 25, 1986 (based on Art.
102, par. 8 of the Swiss Constitution, which enabled the Federal
Council "to act with discretionary powers in foreign policy matters
in order to protect the interests of the Confederation"), it should
not be forgotten that the Shah of Iran's case, while strikingly
similar to that of Marcoses, had a different outcome. The Swiss
authorities announced publicly in early 1979 that they could find
no indication of the Iranian funds at any Swiss banks, but that the
then Ayatollah Khomeni's government was "free" to pursue the
matter in Swiss courts. That caustic remark notwithstanding, it is
hoped the present Swiss government is not merely paying "lip
service" to our noble cause when it declared to the whole world its
intention to help the Philippine government in its efforts to re-
cover Marcos' Swiss assets.
To test the Swiss government's sincerity, it is well to apply

a tactical move tested under the waters of international law. Until
recently Legal Adviser of the Department of Foreign Affairs, Justice
(ret.) Jorge R. Coquia, has proposed the idea of "jurisdictional
cooperation and assistance among States." Coquia's thesis runs

like this: "A strict interpretation of sovereignty and independence
would allow a State to enforce its laws only within its territorial
jurisdiction. However, with the development of the international
community of nations, States seek mutual cooperation and assist*
ance, not only in the maintenance and promotion of international
peace and security, but also in the enforcement of their national
laws in particular cases. Modern international law has developed
at least four areas of jurisdictional assistance among states, namely:
extradition, letters rogatory, prosecution of international offenses,
and the enforcement of foreign claims." Regarding the last area
mentioned, i.e., the enforcement of foreign claims, the Fidel V.
Ramos government may as well adopt the procedure laid down in
the "UN Convention on the Recovery Abroad of Maintenance
Obligations." Under this convention, each state Party undertakes
to establish an agency to transmit and receive claims.
Under the Coquia proposal, both the Philippine and Swiss

governments shall enter into a "mutual assistance agreement"
wherein an "Arbitration Commission," or more specifically, as We
would rather label it, an "Arbitral Awards ad hoc Group" will be
formed, in order to determine exactly how much money the
Marcoses and his associates really have in Swiss banks as well as
in the other places like the Bahamas. The former will be afforded
the opportunity to prove or disprove the existence or non-existence
of the alleged ill-gotten bank accounts or laundered funds. If the
Swiss government accedes to this mutual assistance agreement,
the former's conditio sine qua non that the alleged money laun-
derers be given "due process" will be subserved. Henceforth, there
will be no more reason, real or imagined, for Switzerland to have
any more qualms.
Throughout history, various States have interfered in the

affairs of other countries. Among the grounds advanced for such
intervention have been the following:
(1) payment of contractual obligations;
(2) protectiori"of the rights of aliens; and
(3) justice, humanity, religion, the upholding of treaties,
national prestige, legitimacy, economic interest, and balance of
power.
PAYMENT OF CONTRACTUAL OBLIGATIONS

The practice of some creditor-States to forcibly intervene in
r T ^ a f f a i r e ^ f the debtor-States resulted in the formulation of the
ypraeo Doctritt* by Dr. Luis Drago, one-time Minister of Foreign
Rehrtione-oTArgentina. According to Drago, the collection of public
and private debts "cannot give rise to intervention, and much less
to the occupation of the soil of any American nation by any Eu-
ropean power."
The conflict between the advocates of intervention and the

J}ra_goiteS\led to the Porter Convention (Second Hague Convention
of 1907), named after the U.S. delegate, General Porter: armed
intervention for the purpose of collecting contractual debts cannot
7
be allowed except:
(1) if there is a refusal or a neglect to reply to an offer of
arbitration; or
(2) if after accepting the offer at an arbitration, the debtor-
State prevents any compromise from being agreed upon; or
(3) if after the arbitral verdict shall have been decreed, the
debtor-State fails to abide by the award."
The Drago Doctrine never had the force of international law
because it was not looked upon with favor by many States, al-
though of course, it was adopted, in a qualified sort of way, by the
1907 Hague Convention. At any rate, as has already been intimated,
armed intervention today is, with few exceptions, disallowed un-
der the U . N . Charter.
PROTECTION OF THE RIGHT OF ALIENS

Carlos Calvo of Argentina enunciated the Q&lvo Doctrine —
the doctrine to the effect that an alien againsV-whonrlT final
judgment has been rendered should waive diplomatic~mterven-
tion in his behall. The so-called Calvo Clause is a stipulation
in_a_contract TpaTticularly, one of loan) which allows the applica-
tion of the Uaivo doctrine. The doctrine has been received coldly
because:
'Fenwick, International Law, p. 208.

(1) there IB always the possibility that the tribunals of a

State may fall short of the "international standard of justice" (due
process of law as uniformly adhered to by civilized fora); and
(2) it is a serious question whether a national can waive a
right he does not theoretically possess, namely the right of his
government to intercede for him (while the national may not be
interested in his own claim, his country may, nevertheless, pros-
ecute his claim in the interest of its other nationals).
THE OTHER GROUNDS FOR INTERVENTION

In 1815, the Congress of Vienna was called to settle the affairs
in Europe after the downfall of Napoleon: one important matter
was the punishment of France. To save France, the French diplomat
Talleyrand, introduced the concept of "legitimacy" — the principle
that the dynastic changes made by Napoleon were to be undone
and the "legitimate" rulers and their descendants, restored to their
respective thrones, from which they had been ousted by Napoleon.
Under the theory of legitimacy, the monarchs of Spain, Holland
(now called the Netherlands), the Italian States — and, of course,
F R A N C E — were restored to their thrones. Two alliance systems
were set up to enforce the Vienna settlement: the Holy Alliance
and the Quadruple Alliance.
The Holy Alliance was proposed by Tsar Alexander I of Rus-

sia and was at first composed of RusBia, Austria and Russia (later
it was joined in by most European States); its purpose was the
settlement of European affairs on the basis of Christian precepts:
justice, charity, and peace.
The Quadruple Alliance (Russia, AuBtria, Prussia, and Great
Britain) under the directing genius of Prince Metternich (who had
previously referred to the Holy Alliance as "verbiage") actually
gave military teeth to the Vienna Settlement; it organized several
international congresses (Aix-la-Chapelle, 1818; Troppau, 1820;
Laibach, 1821; Verona, 1822); it took collective action to crush out
liberalism, and even favored A R M E D intervention in the internal
affairs of many States. To prevent the rise of another Napoleon,
the alliance sought to maintain the B A L A N C E OF POWER — an
aligning of States into groups such that the collective strength of
one block would more or less be equal to the collective strength of
another group: in this manner it was thought that international
peace would be the order of the day.
In the meantime, colonies in South America of the European

powers had risen in revolt. To pursue the doctrine of "legitimacy"
to its logical conclusion, the Quadruple Alliance desired to suppress
these revolts so that the European rulers would be "restored" (for
already the rebels in South America had set up their own gov-
ernments.) The Alliance was now ready to invade South America.
England, however, had by this time withdrawn from the Alliance
because Great Britain felt that British economic interests could
best be served by an independent South America. The invasion did
not materialize for two (2) reasons:
(1) Firstly, the Alliance needed the sea power of Britain,

but England was unsympathetic; and
(2) Secondly, on December 2, 1823, President James Monroe
of the United States in a message to Congress proclaimed what is
now known as the Monroe Doctrine.
• ' T h e Monroe Doctrine laid down two (2) important principles
of U.S foreign policy:
(1) Firstly, America was for the Americans; hence the Eu-
ropean powers should no longer regard any part in America as
subject to future colonization; and
(2) Secondly, since the United States had no desire to inter-
vene in European affairs, it would regard European intervention
in American affairs as an unfriendly act of aggression against the
United States itself.
In the words of Monroe himself:

"In the wars of the European powers, in matters relating
to themselves, jve have never taken any part, nor does it
comport with our policy to do so. It is only when our rights
are invaded or seriously menaced that we resent injuries or
make preparation for our defense . . . We owe it, therefore, to
candor and to the amicable relations existing between the
United States and those powers to declare that we should
consider any attempt on their part to extend their system to
any portion of this hemisphere as dangerous to our peace and
safety. With the existing colonies or dependencies of any
European power, we have not interfered, and shall not inter-
fere. But with the governments who have declared their in-
dependence and maintained it, and whose independence we
have, on great consideration and on juBt principles, acknowl-
edged, we could not view any interposition for the purpose of

oppressing them, . . . by any European power, in any other
light than as the manifestation of an unfriendly disposition
towards the United States."
The Monroe Doctrine, supported as it was by the United States
and by Great Britain, saved the new republics of South America;
it also made quite hopeless the extension of Metternichism to the
New World.
Is the Monroe Doctrine a principle of international law? Al-
though in the United Nations it is today regarded as a sort of
regional safeguard for the maintenance of international peace and
security, and although it seems to be the guiding maxim of Pan-
Americanism and the Organization of American States (OAS), still
the Monroe Doctrine cannot be deemed a principle of International
Law because of the following reasons:
(1) Firstly, it was enunciated by only one State — the United
States;
(2) Secondly, it sanctions the intervention of the United
9
States in the affairs of independent South American States; and
(3) Thirdly, under the doctrine a threat to peace is met by
American unilateral action, not by the collective action envisioned
by the Charter of the U N .
In other words, it i6 merely a rule of "American International
10
Law."
Corollary Principles:
Certain corollary principles have been derived from the Monroe
Doctrine:
(1) The Polk Doctrine (1848) — President Polk interpreted
the Monroe Doctrine as prohibiting even the voluntary merger of
an American State with a non-American one.
(2) The Cleveland Doctrine (1895) — President Cleveland
was of the opinion that all boundary disputes in America (such as
s
See Hyde, International Law, p. 166.
"'See Oppenheim, International Law, Vol. I, p. 263-264.
that between British Guiana and Venezuela) ought to be settled

by arbitration under the aegis of the United States.
(3) The Theodore Roosevelt Doctrine (1904) — President
Theodore Roosevelt said that the Doctrine of Monroe allowed the
United States to exercise an international police power in the
11
collection of debts. Brierly has been led to remark that "for a
time it seemed likely that a doctrine which began as a claim to
veto European intervention in Latin-American countries would be
converted into a claim by the United States of an exclusive right
to intervene in them itself. At times the development of something
like an 'Economic Monroe Doctrine' has seemed probable and t h e
United States has shown a tendency to resent the acquisition e v e n
of economic influence in States on the American continent by any
but her own nations. Recent administrations in the United States,
however, have shown themselves desirous of removing the more
extravagant of the corollaries which the doctrine has been sup-
12
posed to involve for American foreign policy."
Recent Developments in Connection with the Doctrine:

(1) The Japanese Monroe Doctrine — The Japanese follow-
ing the example set by the United States announced the doctrine
that s h e would resent the intervention of foreign powerB in her
troubles with China (with particular reference to the Manchurian
invasion by Japan) — even if the intervention should consist merely
of technical or financial assistance, for then said aid could ultimately
13
acquire political significance. Significantly, in a few years, Japan
launched her attack against Pearl Harbor, opening the Pacific War
phase of World War II. Japanese propaganda insisted that she had
launched her attempt at a D A I T O A (Greater East Asia Co-Pros-
perity Sphere) because she believed that if America is for the
Americans, Asia should be for the Asians.
(2) The British Monroe Doctrine — This was the doctrine

stated in a British Note addressed to the United States Btating
that there were certain regions of the world (including the terri-
tories around the Persian Gulf) the welfare and integrity of which
constituted a vital interest for Britannic peace; that in view thereof,
"See Hart, The Monroe Doctrine, p. 241.

l3
Brierly, The Law of Nation*, pp. 289-290.
"See Oppenheim, op. cit., p. 266.
Great Britain could not conceivably allow any intervention in those

1
regions by foreign powers. *
J2f The Four Freedoms of FDR — On January 6, 1941,
President Franklin Delano Roosevelt of the United States an-
nounced to the world that if need be, the United States was ready
to intervene in order to protect four essential freedoms:
(a) the freedom of speech and expression;
jYU^tv (b) the freedom to worship God in one's own way;
(c) the freedom from want; and
(d) the freedom from fear.
(4) The Atlantic Charter — On Aug. 14, 1941, President
Franklin D. Roosevelt of the United States and Prime Minister
Winston Churchill of Great Britain issued aboard the U.S.S.
Augusta a proclamation warning the world that their two countries
were committed to the realization of the following principles:
(a) there should be no territorial aggrandizement on
the part of any State;
(b) it is the sacred right of people all over the world to
choose their own form of government (the right of national
self-determination);
(c) economic collaboration among the various States of
the world should be the rule;
(d) the freedom of the seas ought to be respected at all
times; and
(e) the non-use of force in the settlement of disputes is
vital.
(5) The Truman Doctrine — The Truman Doctrine was a
proposal made by U.S. President Harry Truman in a message to
the U.S. Congress on March 12, 1947 in which he pointed out the
need of economic and military aid by the United States to Greece
and Turkey. The region of aid waa later broadened to include the
whole of Europe — "because it must be the policy of the United
States to support free peoples who are resisting attempted sub-
jugation by armed minorities or outside pressures." The doctrine
"Sea Oppenholiii, op. eh., p. 286

may be said to be the first significant experiment in the United

States policy of containment — to protect the Tree democracies
against Communist guerrilla infiltration. The doctrine, however,
is not a rule of international law, nor doeB it have the force of one.
The doctrine has even been criticized in the United States itself as
a plan to meet a threat to peace by unilateral action, rather than
by collective action as contemplated under the Charter of the U N .
The Truman Doctrine, nonetheless, would seem to be consistent
with two corollary plans:
(a) The Marshall Plan — the project to provide eco-

nomic and financial assistance to countries of Western Eu-
rope for their rehabilitation: the ultimate end iB to prevent
the further spread of Communism: ideas and ideals.
(b) The U.S. Point Four Program — a scheme similar
to the Marshall Flan, but here the area of concentration in-
cludes the less developed countries (LDCs) of Africa and the
Far East. (The program includes the opening of markets and
the improvement of roads and highways, inter alia. )
(6) The Eisenhower Doctrine — In January, 1957, President
Dwight Eisenhower of the United States sent a message to the
U.S Congress requesting economic and military aid for States
against "Overt armed aggression from any nation controlled by
international communism."
The Duties-Eisenhower Doctrine (framed by President
Eisenhower with the help of his Secretary of State John Foster
Dulles) was an elaboration of the Eisenhower Doctrine in that it
sought the aid not only for countries where there was overt armed
Communist aggression, but also for those "in danger"o[ such ag-
gression. It was precipitated by the crisis in the Middle East in
1958. The Arab countries in the Middle East while theoretically
independent States, had long been under the economic vassalage
of certain Western powers which had gained control of valuable oil
concessions and other natural resources found in the region. The
surge of Arab nationalism which naturally resented this foreign
infiltration was soon felt, and throughout the territories, various
revolts and counter-revolts became common occurrences. Russia
surreptitiously encouraged the revolutions hoping perhaps that
the Communist cause would be thereby aided: the State of Leba-
non did not relish this indirect agression by the Communist; it,
therefore, appealed to the United States for help. America accord-
ingly sent U.S. troops to Lebanon, but subsequently proposed to
the Security Council that help be sent to Lebanon in the form of

UN troops so that the American forces could be withdrawn; the
proposal, unfortunately, was vetoed twice by the Russian delegate.
Soviet Premier Nikita Khrushchev accused America of intervention
in the purely domestic affairs of Lebanon. Incensed by the charge,
President Eisenhower answered the Russian charges of illegal
intervention and aggression in the following letter:
"On July 14, 1958, the lawful government of Iraq was
violently overthrown. On the same day, a comparable plot
against the Kingdom of Jordan was discovered and barely
thwarted. The government of Lebanon, which had already for
some months been subjected to indirect aggression from
without, appealed to the United States for instant assistance
in light of developments in neighboring Iraq and Jordan. It
was felt that nothing less than immediate help would make
it possible to preserve the independence and integrity of
Lebanon. The United States responded to this appeal. Surely,
it is not aggression to help a small nation preserve its in-
dependence.
"The action of the U.S. in relation to Lebanon was fully

in accord with the accepted principles of international law,
and with the Charter of the U.N. The government of Lebanon
was one which had been chosen by freely held, peaceful,
nationwide elections only a little over a year ago. The appeal
to the U.S. was made by the President of Lebanon with full
approval of the Cabinet. When last week the Soviet Union
introduced in the U . N . Security Council a resolution con-
demning our action in Lebanon — that resolution received
only one vote — that of the Soviet Union itself. I also note
that efforts were made within the Security Council to provide
Lebanon with increased protection from the U . N . so as to
preserve its integrity and independence, thus permitting U.S.
forces to be promptly withdrawn. There were two such pro-
posals, each defeated by the one vetoing vote of the Soviet
Union. How does the Soviet Union reconcile its allegation
that U.S. forces in Lebanon endanger world peace with the
1S
veto of those two proposals?"
(7) The Khrushchev Doctrine — According to N i k i t a

Khrushchev of Russia:
15
The Manila Chronicle, July 24. 1958.
(a) continued occupation by the Allies of West Berlin,

despite the Tact that the whole of Berlin (West and East Berlin)
is found inside East Germany (a Communist State) is inter-
vention, pure and simple, in domestic German affairs;
(b) flight of foreign aircraft over Soviet territory without
prior permission and clearance constitutes virtual espionage;
(c) there are three (3) kinds of conflicts:
(1) world war — which would for the present be
suicidal in view of "nuclear horrors;" and
(2) local wars — like the Suez and Cuban ex-
amples — these must likewise he avoided because "they
could set off a world explosion;"
(3) wars of "national liberation"— as in the case
of Indonesia and Algeria — in such wars, Communism
says Khrushchev, ought to intervene.
NOTE: The Chinese Communists believe that Communism
must intervene in all conflicts. While Russia and China — the two
foremost exponents of Communism today — have a mutual de-
fensive alliance (the Sino-Soviet Pact) binding each to help the
other automatically in case of aggression, still it would seem that
today in view of differences in dogma their relations seem to be
"severely strained." As the German Iron Chancellor Otto von
Bismarck had occasion to say in Berlin, 1872 — "No country has
16
permanent friends — it has only permanent interests."
(8) The Kennedy Doctrine — According to President John

F. Kennedy of the United States, any attempt on the part of Russia
to interfere with the purely internal affairs of Cuba would be
considered by the American people as an act of aggression against
them and therefore a threat to the security of. the United States.
Query
X is a country where Parliament elects the President (Chief
of State). Certain sectors of the country stage a revolt. Parliament
holds an emergency session and approves a resolution of No
lc
See Arthur Gavson, "Long Lisl of Disagreements Clouds Sino-Sovn-L Al-
liance." The Manila Times, March 21. 1962.
THE RIGHT OP SOVEREIGNTY A N D INDEPENDENCE
Confidence in the President. Members in Parliament voting for the

resolution are evidently pro-rebel. The rebel sectors organize a
government more or less complete in all its branches, that seek
foreign aid. Questions:
(a) May the foreign aid be justified if given?
(b) Is this foreign intervention? Reasons.
ANSWER:
(a) In general, the foreign aid cannot be justified because
this will be considered an attempt to prevent the people of a
State from settling their own affairs and their own inde-
pendence. Indeed the foreign aid would be incompatible with
the right of sovereignty, independence, and jurisdiction of
State X. According to Hall, the right of freedom from external
interference is so fundamental a part of international law,
and respect for said right is so essential that any action to
place it in a subordinate position must be looked upon with
disfavor." While it is true that prior to the UN Charter some
States justified meddling "at the request of a party to a civil
war or revolution," it would seem that today the foreign aid
sought, if given in terms of force or the threat of force, is
prohibited under Art. 2, pars. 4 and 7 because the case deals
with "matters essentially within the domestic jurisdiction of
any State." However, if the foreign aid sought is merely in
the form of "mediation" by a foreign country, or even in the
form of arms and food (so long as there is a threat to in-
ternational peace and security) said aid could be justified
under Chapter V I I of the UN Charter, provided that it be
carried out under the supervision of the Security Council.
(b) The giving of aid would be foreign intervention

(indeed, an armed one, in case threat or the use of force
accompanies it).
(9) The Nixon Doctrine — This is the dictum enunciated in
1970-71 by President Richard Nixon of the United States to the
effect that:
(a) the U.S. will ordinarily no longer use land forces in
affairs like the Vietnam War (note that sea and air forces are
not discounted).
"See Hall, International Law, pp. 337-338.

(b) the U.S. will not participate in any ware except those
brought about by nuclear powers using nuclear weapons.
(c) the U.S. will continue to respect its existing treaty
and alliance commitments.
(10) The Carter Doctrine — This is the declaration by Presi-
dent Jimmy Carter in response to the Soviet invasion of Afghanistan
in December 1979, i.e., he can commit the U.S. to use military
force to protect its 'national interests' should the USSR threaten
the oil-producing countries of the Persian Gulf region.
(11) The Reagan Doctrine — This is the doctrine announced
by U.S. President Ronald Reagan in 1984-1985 to the effect that
the U.S. can best prevent a war with Russia if his country can
build up a massive nuclear defense, complete with nuclear missiles
and space satellites. Reagan, actor-turned politician, rode to the
United States presidency in 1980 and left office in January 1989
with two-thirds of the American people approving his performance
during his two terms. It was the highest rating for any retiring
President since World War I I . His place in history rests on the
short-and intermediate-range missile treaty consummated on a
cordial visit to the Soviet Union that he had once reviled as an
"evil empire." Its provisions, including a ground-breaking agreement
on verification inspection, were formulated in four days of summit
talks in Moscow in May 1988 with the Soviet leader, Mikhail S.
Gorbachev. (Arthur P. Reed, Jr., "President of the U.S. — Ronald
Reagan," The 1992 Almanac, p. 664).
Internationally, Reagan confronted numerous critical prob-

lems in his first term. The successful invasion of Grenada ac-
complished much diplomatically. But the intervention in Lebanon
and the withdrawal of Marines after a disastrous terrorist attack
were regarded as military failures. Likewise, his foreign policy
met stiffening opposition, with Congress increasingly reluctant to
increase spending for the Nicaraguan "Contras" and the Pentagon
and to expand the development of the MX missile. But even severe
critics praised Reagan's restrained but decisive handling of the
crisis following the hijacking of an American plane in Beirut by
Moslem extremists. The attack on Libya in April 1986 galvanized
the nation, although it drew scratching disapproval from the N A T O
alliance.
In a speech prepared for an address to Oxford University's

debating society held on December 4,' 1992, Reagan (no longer the
U.S. president) called for military intervention in former Yugosla-

via, Somalia and Sudan.
Said he:
"Our multilateral organizations must declare ethnic
cleansing and the slaughter of civilians by military forces
totally unacceptable, and we must be prepared to put weapons
behind our words. What I propose is nothing less than a
humanitarian velvet glove backed by a steel fist of military
force. Serbs must be given an ultimatum to cease the shelling
of civilian populations and lift their deadly siege."
Be it remembered that Reagan presided over a huge build-up
of U.S. military forces during his presidency.
(12) The Bush Doctrine George Herbert Walker Bush be-
came U.S. President on January 20, 1989. In his first year, Bush,
a World War II hero, had won plaudits at home and abroad for his
confident, competent conduct at the N A T O 40th anniversary
summit meeting at Brussels, the Paris economic conference, on his
tour of Eastern Europe, and at the Malta conference with
Gorbachev. Grave challenges in that year were the Lebanon hostage
crisis and the ongoing war on the drug traffic.
In 1991, the American President emerged as the leader of an
international coalition of Western democracies, Japan, and even
some Arab States that freed invaded Kuwait and vanquished at
least for a time, Iraq'6 President Saddam Hussein and his armies.
A nation grateful at feeling the end of the "Vietnam syndrome"
gave the President an over-all rating of 89 percent in a Gallup poll
in March after the end of the war. Nevertheless, there were nagging
doubt6 about the Persian Gulf war, its motives and conduct, and
about the ensuing refugee crisis.
A major Bush accomplishment in 1991 was the Strategic Arms

Reduction Treaty (START), signed in July with Soviet President
Mikhail S. Gorbachev at their fourth summit conference, marking
the end of the long weapons buildup. Succeeding events in the
Soviet Union and the apparent disintegration of the Communist
empire could only enhance his status.
While it was Ronald Reagan who had spent the Evil Empire
(the Soviet Union] into bankruptcy, its disintegration had happened
on Bush's watch. It was he who got to negotiate an end to the 40-
vear balance of nuclear terror. And it was Bush who had inherited
and fitfully UBed the resulting new opportunities open to America

as the last real superpower on the planet; he had even got the
Arabs and the Israelis into the same room, talking. (See W. Peter
Goldman and Tom Mathews, "America Changes the Guard,"
Newsweek, November 16, 1992, p. 26).
His apotheosis as world leader had mobilize[d] a global alliance
against Saddam Hussein's invasion of Kuwait. It was a famous
victory, and Bush had, for a season, become a[n] [international
hero. (Ibid.)
(13) The Gorbachev Doctrine — Credited for the collapse of
communism in Eastern Europe as well as in the Soviet Union
itself, he initiated, together with his American counterpart George
Bush, the scaling down of nuclear armaments. He is most popular
for his views ( a T I M E "Man of the Year") on Perestroika (re-
structuring) and Glasnost (openness) while earning the ire of
Communist hardliners.
NOTE: Russia successfully held a referendum on April 11,

1993 extricating itself from a constitutional crisis. The referendum
called for Russians to decide who should rule the country, i.e., the
government or Congress. Russia's Constitution currently severely
restricts the authority of the government, forcing Russian leader
Boris Yeltsin to rule largely by special powers since November
1991. Those powers expired on December 1, 1992.
On this note, ex-President Gorbachev said Russia is in dan-

ger of breaking up, and he urged Boris Yeltsin not to move too
quickly on reform despite his referendum victory. On Bosnia,
Gorbachev blasted the West for hastening the breakup of Yugosla-
via by quickly recognizing Slovenia and Croatia. He supported the
Vance-Owen plan to set up ethnic zones in Bosnia and said UN
troops should halt the fighting. The Soviet Union's last president
agreed that the Russian Federation could split up as ethnic re-
publics seek autonomy. "That danger exists," he said. Yeltsin "must
advance prudently in the direction of a new federation."
Commenting on the October 1993 coups in Moscow featuring

Yeltsin vs. Communist hardliners, Gorbachev, said he did not be-
lieve Yeltsin had dictatorial tendencies. But he also said dictator-
ship "can happen if the president makes false conclusions from the
results of the incident where the Army supported Yeltsin. The
country is in transition. It must now make grave decisions, how to
reform . . . privatization, what powers the regions should have.
Are we going to put measures in effect in regions that voted against

him?" Gorbachev said Yeltsin's allowing the Soviet Union to break
up was his worst error.
(14) The Clinton Doctrine — In the summer '92 issue of the
Harvard International Review, Bill Clinton, then Arkansas Gov-
ernor and now President of the United States, laid out his foreign
policy in this wise:
"The U.S. faces two (2) great foreign policy challenges

today. First, we must define a new national security policy
that builds on freedom's victory in the Cold War. The Com-
munist idea has lost its power but the fate of the people who
lived under it and the fate of the world will be in doubt until
stable democracies rise from the debris of the Soviet empire.
Second, we must forge a new economic policy to serve ordi-
nary Americans by launching a new era of global growth. We
must tear down the wall in our thinking between domestic
and foreign policy.
"[Thus.l we must pursue three (3) clear objectives: (1)
We must restructure our military forces for a new era; (2) We
must work with our allies to encourage the spread and con-
solidation of democracy abroad; and (3) We must reestablish
America's economic leadership at home and in the world.
u
[N]ow that the nuclear arms race has finally reversed
its course, it is time for a prudent showdown in strategic
modernization. We should stop production of the B-2 Bomber.
That alone could save U.S. $15 to U.S. $20 billion (billion
should be read as 1,000 million) by 1997. America needs to
reach a new agreement with its allies for sharing the costs
and risks of maintaining peace. We must take the lead now
by expanding the Security Council and making Germany and
Japan permanent members; by continuing to press for greater
efficiency in UN administration; and by exploring ways to
institutionalize the UN's success in mobilizing international
participation in Desert Storm. One proposal worth exploring
calls for a UN Rapid Development Force that could be UBed
for purposes beyond traditional peacekeeping, such as stand-
ing guard at the borders of countries threatened by aggres-
sion; preventing attacks on civilians; providing humanitarian
relief; and combating terrorism and drug trafficking. The U.S.
204 I N T E R N A T I O N A L 1-AW A N D W O R L D POLITICS
needs to support evolving institutional structures favorable

to countries struggling with the transition to democracy and
markets, such as the new European Bank for Reconstruction
and Development whose mission is to rebuild the societies of
Central and Eastern Europe. We are right to encourage the
European Community (EC) to open its doors to those socie-
ties by creating an affiliate status that carries some but not
all of the privileges of memberships.
"We must remember that even if the Arab-Israeli dispute

were to be resolved tomorrow, there would be still ample
causes of conflict in the Middle East; ancient ethnic and
religious hatreds; control of oil and water; the bitterness of
the have-nots towards those who have; the lack of democratic
institutions to hold leaders accountable to their people and
restrain their activities abroad; and the territorial ambitions
of Iraq and Syria. No national security issue is more urgent
than the questions of who will control the nuclear weapons
and technology of the former Soviet empire. Those weapons
pose a threat to the security of every American, to our allies,
and to the republics themselves.
"It may be bad politics to be for any aid program, but we

owe it to the people who defeated Communism and the coup,
and we owe it to ourselves. A small amount spent stabilizing
the emerging democracies in the former Soviet empire
today will reduce by much more the money we will have to
commit to our defense in the future. And it will lead to the
creation of lucrative new markets, which mean new Ameri-
can jobs. Having won the Cold War, we must not now lose the
peace."
THE CRISIS IN SOUTH VIETNAM —

(AMERICAN AND PHILIPPINE "INTERVENTION"?)
Many questions have been asked about Vietnam. Is the

American participation in the affairs of South Vietnam interven-
tion? Should the Philippines aid the South Vietnamese — and if
so, what kind of aid ought to be given? If not, why not?
Now then, for a brief look-see into the background of the
Vietnam problem:
(1) Before the war, Vietnam was a part of what was then
known as French Indo-China; during the war, the Japanese con-
T H E RIGHT OF SOVEREIGNTY A N D INDEPENDENCE
quered the country; at the close of the war in 1945, the Japanese
18
was driven out, and the region was restored to France.
(2) However the surge of nationalism that had enflamed

Vietnam during the war continued. The people rebelled against
their French masters, finally defeating the mother country at
19
Dienbienphu.
(3) Both the last World War and the Resolution had in the
meantime divided the country into two hostile camps: the na-
tionalists, and the communists. The first formed the majority in
the south; the latter emerged the leaders in the north.
(4) Hence, the successful rebellion culminated in a divided

Vietnam. The solution to the conflict was reached at the Geneva
Agreements of 1954: Vietnam was to be partitioned at the 17th
parallel — North Vietnam was to be governed by Ho Chi Minh and
his Communist subordinates; South Vietnam was to be ruled by
Emperor Bao Dai, assisted by his Prime Minister, Ngo Dinh Diem.
(Be it observed that in a subsequent national plebiscite, said Prime
Minister was chosen by his countrymen to be President of T h e
Republic of South Vietnam"). The two Vietnams, under the Geneva
Agreements, were supposed to be under the supervision of the
International Control Commission (this consisted of Canada, India,
2 0
and Poland).
" T h e restoration was under the auspices of the British and the Nationalist
Chinese Armies.
" T w o big factors contributed to the French defeat: Firstly, France did not
have the sympathy or its own people in France; secondly, Red Chinese Commu-
nists, relieved from the conflict in Korea, were able to give much needed support
to the rebellion. T w o more reasons can be given: France never sent draftees to
Vietnam; moreover then French Premier Pierre Mendes-France, even when the
Geneva Conference was still pending, had already set a fined date for the
withdrawal or French troops. This was a psychological error for conceivably this
could give France no advantage in the settlement proceedings. It will be recalled
that Mendes-France had previously declared that he would give himself four
weeks to negotiate the peace settlement, and if it could not be achieved within
that period, he would resign. (See Harvey Hudson, "U.S. May Lose War in Vietnam
Just Like France Did in 1954,' The Evening News, March 18, 1966).
'"See Sergio Osmena, Jr., "Vietnam and Common Sense, " The Manila Times,
March 17. 1966, p 22-A. With reference to North Vietnam, it may be said that
it has a Vietminh Constitution (adopted as of December 31, 1959). Their funda-
mental law is naturally premised on Communist principles and understandably,
calls for the reunification of all Vietnam. A President elected by Parliament is
the governing head. Assisting him is a Prime Minister appointed by the Presi-
dent (he was reelected on July 16, 1960). {The World Almanac, 1966. p. 419).
(5) From the very start, the International Control Commis-

sion found it extremely difficult to perform its function of super-
vision in view of the non-cooperation of North Vietnam: for instance.
North Vietnamese troops still in South Vietnam decided to go
underground, instead of returning North; besides North Vietnam
tried to prevent the exit from its own irgion of dissatisfied
21
inhabitants.
(6) In 1956, both Vietnam* were supposed to undergo a na-
tionwide election for the purpose of unifying. This did not go thru in
South Vietnam because President Diem feared that unless interna-
tional supervision could be effective, the elections would be a farce
22
(the Communists being well known Tor their regimented voting).
(7) Angered, the North Vietnam Communists decided to force
the issue in South Vietnam; first, they sent men, arms, and supplies
to the south; secondly, their party formed a branch in South Vi-
etnam (now popularly known in various names — People's Revo-
23
lutionary Party, National Liberation Front, Viet Cong).
(8) The evident purpose of the Viet Cong is to seize control
of the government: after "victory," it would set up the National
Liberation Front as the "legitimate government" of South Vietnam.
(9) Alarmed, the authorities of South Vietnam asked mili-
tary assistance from the United States. This help was first given
in 1960 by America in defense of the territorial integrity of the
free people of South Vietnam.
(10) While from 1960 to 1975 the United States was in South
Vietnam, a serious political conflict arose in 1963 right in South
Vietnam itself: the Buddhist groups charged the government with
authoritarianism and brutality. This charge, coupled with the
notorious delay in the grant of badly needed reforms paved the
way for a military coup d'etat on November 2, 1963." The Ngo
"Despite the e(Torts o( the Communists, however, almost a million people

were able to escape to South Vietnam.
"Regimented Communist voting is common not only in Red China and
Russia but also in all countries within the Iron Curtain — Satellite Europe
M
Actually the Viet Cong had its nucleus during the Japanese occupation in
much the same way as we in the Philippines saw the birth of the Huks during
the dark days or the last war.
M
I t is alleged by some observers that the coup was engineered with the
help of the American C I A . ostensibly because President Ngo Dinh Diem was
found unsatisfactory by the United States Government.
regime was overthrown, resulting in the death of President Ngo

Dinh Diem, his brother and political adviser Ngo Dinh Nhu, and
the execution for alleged criminal offenses of a third brother, Ngo
25
Dinh Can, on May 9, 1964.
(11) A 23-man military junta, headed by Maj. Gen. Duong Van

Minh, was then formed. This regime in turn was overthrown in a
bloodless coup, the leader of which was Maj. Gen. Nguyen Khanh.
This coup, which took place in early 1964, resulted in Gen. Khanh
proclaiming himself Chief of State and later Premier. He also headed
the military triumvirate that eventually evolved. However, on Sept.
8, 1964, the group elected Gen. Minh as its chairman.™
2
(12) Communist aggression continued with unabated fury. '
In the meantime. Dr. Phan Huy Quat had succeeded as Prime
Minister. Dr. Quat on April 14, 1965 addressed a letter to then
Philippine President Diosdado Macapagal requesting economic and
technical aid from the Philippines. The Philippines gallantly re-
sponded thru Rep. Act No. 4162, enabling it to send doctors, nurses
and a military psychological warfare detachment (we appropriated
20
one million pesos for the venture).
(13) Subsequently, additional aid was requested, this time

South Vietnam specifically asked for an engineering battalion with
security support. Thi6 unit was sought by the South Vietnam
Minister of Rural Reconstruction, but the petition naturally had to
come from the Prime Minister (this time, a new name had entered
the scene. Nguyen Cao K y ) . The letter embodying the request was
formally sent by the South Vietnam Ambassador to then President
M
Ferdinand E. Marcos on February 2, 1966.
(14) Later our Senators and Congressmen divided themselves

3 0
into the "doves" and the "hawks" on the Vietnam aid bill (under
^ h e death or the President has up to this day remained a mystery: w.is

it suicide, murder, or a plain case or homicide?
™The World Almanac, loc. at.
" T w o U.S. destroyers were attacked allegedly by North Vietnamese P T.
boats on Aug. 2-4 in the Gult or Tonkin. The United Slates retaliated with heavy
air strikes against North Vietnamese torpedo bases, and oil storage depots ilbid.)
M
S e e the Vietnam Memo or (then) Undersecretary Claudio Teehankee, The
Manila Times. March 14, 1966, p. 18-A.
" S e e Sergio Osmena, "Vietnam and Common Sense," loc. cit.
" T h e "doves" were the * peaceful' lawmakers: they were against the send-
ing of engineering battalions with security cover. The "hawks" were those who
favored the bill.
31
the bill, we were supposed to send one or two engineering battal-
ions with adequate security support; around 35 million pesos were
involved in the appropriation measure). We heard of new demon-
strations and a little "rebellion" in South Vietnam, more specifi-
cally in Da Nang, where the heart of the Buddhist rebellion was.
Because this new strife threatened to topple the government, and
because Premier Cao Ky had made a request, the United States
for the first time openly took a hand in the Vietnam political crisis
32
by furnishing air transport support.
Viewed from the facts hereinabove referred to, it does seem

that the United States was N O T guilty of intervention in South
Vietnam. Far from being a routinary civil war, the conflict in the
country was really between the forces of Communism and the
forces of Democracy, with Southeast Asia caught in the bloody
cross-fire. Furthermore, America's participation was clearly upon
the request of the then legitimate authorities themselves of South
Vietnam. It is true that numerous regimes in the country had
succeeded one another (much too rapidly for comfort), yet one
significant thing stands out, namely, that all of said regimes had
x
consistently asked for American help. '
Be that as it may, in the Jan. 23, 1971 issue of the EXAM-

INER, the late Vicente Vlllamin, brilliant Filipino writer, inter-
nationalist, commentator, and economist, and one time nominee
and strong candidate for the Nobel Peace Prize, intoned:
"By words and deeds. North Vietnam agrees with
America 1% and disagrees 99%. The 1% is on the shape of the
tables at which the members of the Paris peace conference
sit.
"North Vietnam has outsmarted America by being ruth-
lessly unreasonable, egoistic, and unreliable. This has been
made possible with the aid of America's mistakes and
omissions. Examples of these, being critiques and not criti-
cisms, follow:
1- America's purpose in Paris is peace. But North Vi-
etnam's is not peace. It is to stop the American strategic
"Actually three bills of similar nature, had been proposed.

J3
The Daily Mirror, April 6. 1966. p. 1.
M
R e d China has threatened to intervene forcibly should the United Suites
bomb and/or invade North Vietnam.
T H E RIGHT OF SOVEREIGNTY A N D INDEPENDENCE
bombing of North Vietnam to prevent her troop infiltration

into South Vietnam. America has underestimated that pur-
pose. She took part in making the Paris talk last Tor two
years, while the infiltration went on, and the enemy is still
at it.
2. The U.S. CIA (Central Intelligence Agency as dis-

tinguished from K G B ) has endangered South Vietnam's se-
curity by telling the world, including the enemy especially,
thru the N E W Y O R K TIMES, that her government is infil-
trated by 30,000 enemy spies. That information should have
been given exclusively to that government for remedial action.
Its publication constitutes "aid and comfort to the enemy" in
time of war.
3. The Vietnam question is difficult enough as it is to

settle, but America would make it more so by proposing to
include in the suggested agenda of peace the Cambodian and
Laotian questions. In Cambodia, there is a civil war in which
America is not involved. A takeover by the Communists in
Laos is inevitable over any aid of America in its resistance.
4. America is fighting a "limited war" in Vietnam. Its

basic idea is not to win the war, nor to bring it to North
Vietnam territory, nor to destroy the enemy government.
Rather, its object iB merely to defend South Vietnam on her
territory from North Vietnam's attack to conquer her.
5. Before he became President of the U.S., Mr. Nixon,
in two powerful articles in READER'S DIGEST, stated that
the best solution af the war was to "win the war decisively."
A practical economic solution is probable and should be of-
ficially considered. And still the war might just fade out by
the weariness of the combatants. So far the military and
political solutions have failed.
(6) A t a coBt of more than 500,000 lives, North Vietnam
killed 44,000 Americans. What good will it do her? Nothing.
Will it make her win the war? No. Will it end the war? No.
Will it make her prosperous? No. Will it make her great and
happy? Never. It will only make her sorry for herself for
sacrificing so much for the war for nothing whatsoever. Her
best policy is to have peace. That is the path of progress and
honor. The late President Ho Chi Minh would travel along
that path. Hanoi should be with him now."
210 I N T E R N A T I O N A L LAW AND WORLD POLITICS
NON-INTERVENTION BY U S. ARMED FORCES

IN LOCAL RALLIES
The Joint Chiefs of Staff of the United States Armed Forces
once issued the following memorandum:
"In applying policy in reference message to overseas
areas, it must be recognized that a wellsettled principle of
international law is that one nation may not interfere with
the internal affairs of another. In all countries where our
forces are stationed, we are guests of a host nation. In most
countries, our rights and privileges are specifically delineated
by Status of Forces Agreements. Our personnel do not have
the right or privilege of participating in mass picketing,
demonstrations, or any other group or individual action de-
signed to alter the policies, practices, or activities of the local
inhabitants, who are operating within the framework of their
own laws. Accordingly, such actions by members of the U.S.
3
Armed Forces in foreign countries are prohibited." *
CIVIL WARS AND UN INTERVENTION

Can the United Nations do something to meet the challenge
of breaking up civil wars? Or must the world continue to stand by
and watch the carnage on television?
Brian Urquhart, a former UN undersecretary-general, in a
comment contributed to The New York Times and reprinted in the
International Herald Tribune, Dec. 31, 1991-Jan. 1, 1992, p. 4,
wrote:
"Civil war with modern weapons is a brutal and de-

structive business that is often extraordinarily hard to stop.
Until now such situations have generally been considered to
be beyond the jurisdiction of international or regional or-
ganizations. Even the provision of international emergency
humanitarian assistance has often proved difficult and con-
troversial. In Yugoslavia, the pattern of non-intervention has
been cautiously put aside. Both the European Community
and the United Nations are involved in efforts to halt the
"Unclassified JCS Message 2190, Aug. 22, 1963, amplifying unclassified

message DEF 344531, July 18, 1963. AJIL, Vol. 56. Jan. 1964, N o . 1. p. 167.
fighting and foster the process of peaceful settlement. In

Somalia, in an even more lethal civil war, there has been
virtually no regional or international effort to stop the fight-
ing, and it has become increasingly difficult to provide even
minimum humanitarian relief. In other formerly proud States,
sovereignty is also dissolving into anarchy, fueled by old feuds
and grudges and an abundant supply of arms. In Yugoslavia,
part of the problem is that without a ceasefire there can be
no peacekeeping force, but without a peacekeeping force a
ceasefire is unlikely. A similar impasse is likely in other places
where there are international efforts to end civil wars. In this
time of extraordinary change, would a new approach be jus-
tified and could it be agreed on? At the moment, the United
Nations has basically two military options. The first is tra-
ditional peacekeeping — i.e., forces that can be deployed only
after a ceasefire is in place, that are accepted by the parties
to the conflict and that may only use force in self-defense.
T h e second option is a large-scale collective enforcement
action such as that in Korea in 1950 or, under Chapter V I I
of the Charter, in Kuwait in 1991 — both under U.S. leader-
ship. A third category of international military operation is
needed, somewhere between peacekeeping and large-scale
enforcement. It would be intended to put an end to random
violence and to provide a reasonable degree of peace and
order so that humanitarian relief work could go forward and
a conciliation process could commence. The forces involved
would be relatively small and representatively international;
they would not have military objectives as such. But, unlike
peacekeeping forces, such troops would be required to take,
initially at least, certain combat risks in bringing the vio-
lence under control. These would essentially be armed police
actions. This idea raises both political and practical questions.
I N T E R N A T I O N A L I N T E R V E N T I O N in most forms is now
extremely suspect in many parts of the world. New rules of
engagement would have be devised. StafT, training, planning
and command structures would have to be developed. A wide
range of governments would have to be willing to provide
highly trained and well-fed military contingents under UN
command. In 1945, after six years of war, Article 43 of the
Charter was considered to be an important practical innova-
tion. It provided that UN members would 'make available to
the Security Council.. . armed forces, assistance and facilities
. . . necessary for the purpose of maintaining international
peace and security.' Thus, the Security Council would have

the means to enforce its decisions, and the UN members would
participate in this process. Paralyzed by the Cold War, the
Security Council never activated Article 43. Perhaps Article
43's lime has now come, although in a broader context than
originally intended by the words 'international peace and
security.' The aim would be to enable the Security Council to
deploy an international force quickly in a situation where the
cycle of violence could not be broken except by firm inter-
vention. Such a situation now exists in Somalia and perhaps
in Yugoslavia. It existed in Liberia until the military inter-
vention in early 1991 by the Economic Community of West
African States. Such situations exist or can be expected in a
number of other places as well.
"As with all innovations, there will be plenty of argu-

ments against intervention by a new type of international
force. But there iB one large argument in favor of it. The
unraveling of national sovereignty seems to be a feature of
the post-Cold War period. In more and more situations, only
firm and evenhanded intervention from the outside is likely
to put an end to self-perpetuating bloodshed and the progres-
sive ruin of once peaceful human societies."
DEFENSE CONVERSION
It is said that the record of massive defense conversion is one
unblemished by success. Two (2) notable exceptions lie, however:
(1) the defense-dominated economies and mammoth military
facilities of Japan and Germany, which were converted into civil-
ian production after World War II; and (2) the two defeated pow-
ers (Japan and Germany) were militarily occupied, their defense
industries were immediately destroyed and rebuilt with extensive
foreign aid. Almost a century later, both countries enjoy economic
prosperity.
The same set of solutions are proposed today Tor the former
Warsaw Pact nations, using Western bulldozers rather than Allied
tanks, since true defense conversion is readily dismissed as impos-
sible or at least impracticable. ThiB is most especially true in the
former Soviet Union, where the need is greatest, the impediments
are gravest, and the trends most pernicious. Throughout the ex-
communist States, defense conversion leads to a bundle of woes that
T H E SECOND F U N D A M E N T A L R I G H T 213
accompany the unprecedented leap from communism to capitalism,

from communes to companies.
Accordingly, questions abound on: (1) ownership (Who owns
the land building or company originally seized by the communist
government?); (2) privatization (How is one to convert existing
facilities from the government to private hands?); (3) personal
allegations (How much in the millions of raw intelligence reports
is to be believed?); (4) entrepreneurial talent (Where is one to find
or train potential business leaders with a host of skills never needed
under communism?); (5) conversion of currency (How do foreign
firms repatriate their earnings?); (6) environmental liability (What
happens if a newly purchased facility is later found to have a
major environmental problem?); (7) political stability (With w h o m
within a government does one negotiate?). The answers to these
questions represent the greatest deterrent to foreign investment,
although problems of defense conversion naturally e a s e as the
economy improves. The critical step for conversion — privatization
— is for privatization to come up w i t h greater incentives for
workers and managers to engage in civilian projects rather than
military programs. Fortunately, in 1990 some 25 governments
worldwide sold State-owned enterprises — incidentally accruing
some $30 billion in revenues. However, such actions are frequently
controversial, sparking demonstrations from India to Argentina
when government-owned a s s e t s were put up for sale.
Thereupon, asking w h a t to do leads to the Rosetta Stone of
defense conversion, i.e., defense conversion should not be viewed
as "conversion" at all. Rather, it is decisive action that is needed.
In this light, authors Kenneth L. Adelman and Norman R. Augus-
tine in their "Defense Conversion: Bulldozing the Management,"
published by Foreign Affairs (1992), five (5) steps so as to accom-
plish such a transformation, to wit:
One. There must be assurance of political stability.
Two. A business-friendly infrastructure m u s t be constructed
with clear laws of property ownership, assuring the sanctity of a
contract, environmental accountability and an encouraging tax
policy.
Three. Privatization should be expedited with a generous
stance toward foreign ownership, including Bpecial tax incentives
to reward job creation.
Four. Conversion must be need-driven, not capacity-driven,

e.g., to launch the defense conversion effort, leaders should direct
assets into the essentials of a society — medical care, food process-
ing and distribution, housing and energy generation.
Five. Ex-communist countries must develop sources of hard
currency by doing what in the non-defense realm they do best,
e.g., officials could jump-start tourism as a potentially major source
of foreign exchange.
In fine, defense conversion is simply the result of two (2)
independent and parallel actions: shedding many elements of the
defense sector, and absorbing those assets into a new entrepre-
neurial consumer sector. An excellent example of the latter is the
"new" Subic port, as developed and envisioned by Subic Bay
Metropolitan Authority head Richard Gordon, former Mayor of
Olongapo City.
NEW BASE CLOSINGS AT PENTAGON
A new round of military base closings in the United States,

one that could shut 30 bases and shrink as many as 150, is the
latest sign of wrenching U.S. defense budget costs in the wake of
the Cold War. An independent commission set up by U.S. Defense
Secretary Les Aspin has been formed to review domestic closings.
President Bill Clinton already has proposed cutting an additional
$88 billion from defense spending over the next four years. Troop
levels, currently at 1.8 million, would drop by at least 400,000 by
1997 under the administration plan.
Edwark Luttwak, an analyst with the Center for Strategic and

International Studies in Washington, cautioned that the White House
must be careful not to cave in to congressional demands to shutter
foreign bases ahead of domestic closings. T h e U.S. is the world's only
superpower and, as such, has duties and obligations," said Luttwak,
noting that the Pentagon has already ended or cut its presence at 638
large and small overseas facilities since January 1991.
And unlike the hot potato of domestic bases, the Pentagon
can close overseas facilities without congressional approval.
START II THEATY
In January 3, 1993, then U.S. President George Bush and

Boris Yeltsin of the Commonwealth of Independent States (CIS)
made a breakthrough in history with the signing of the Strategic

Arms Reduction Treaty II (START I I ) in Moscow. (START I was
signed in 1991).
The terms of START II stipulate, inter alia, a reduction of
the most deadly nuclear weapons, especially land-based missiles
with multiple warheads. Accordingly, two-thirds of these weapons
are to be decomissioned over the next ten years cutting down both
countries' land-based warheads. By then, all land-based missiles
will have been eliminated during the period.
Earlier, under START I, partial reduction of the two coun-
tries' nuclear arsenal had begun implementation.
CHINA TODAY
Under Deng Xiaoping's leadership, China's Communist ideol-

ogy was almost totally reinterpreted and sweeping economic
changes were set in motion in the early 1980s. The Chinese
scrapped the personality cult that idolized Mao Zedong, muted
Mao's old call for class struggle and exportation of the Communist
revolution, and imported Western technology and management
techniques to replace the Marxist tenets that retarded moderniza-
tion. Also, under Deng's leadership, the Chinese Communists
worked out an arrangement with Britain for the future of Hongkong
after 1997. The flag of China will be raised but the territory will
retain its present social, economic, and legal system.
The removal of Hu Yaobang, a Deng protege, as party chair-

man in January 1987 was a sign of a hardliner resurgence. He
was replaced by- former Premier Zhao Ziyang. Conflict between
hardliners and moderates continued and reached a violent climax
in 1989. In the infamous "Tiananmen Square Massacre," students
demonstrators calling for accelerated liberalization were crushed
by military force in June, resulting in several hundred deaths.
This was followed by a purge of moderates, including party leader
Zhao Ziyang. In Jan. 1991, a Chinese court convicted and sen-
tenced eight, including the country's leading human rights advo-
cate, to prison for terms of two to seven years for "counter-revo-
lutionary propaganda and incitement." Two additional dissidents
were sentenced to 13 years in prison in connection with the
Tiananmen protests.
In December 6, 1992, China accused Taiwan of trying to block

unification with the mainland by buying jet fighters from the United
States and France, one of Beijing's Bret direct attacks on Taipeh
over the multi-billion dollars jet dealB. A commentary in the over-
seas edition of the official People's Daily said Taipeh was seeking
to create "one China, one Taiwan" or "two Chinas," both options
Beijing has firmly ruled out in its determination to recover the
Nationalist-ruled island. Said the commentary:
"(In 1992], the Taiwan authorities have spent close to

U.S. $10 billion to buy F-16 and Mirage jets from the United
States and France. In spending such a huge sum of the hard-
earned money of the Taiwan people, the Taiwan authorities
are wasting both time and capital, acting against the people's
will and harming the future development of relations. The
scheme behind the purchase of such a lot of advanced weap-
onry is to create an independent political entity, such as 'one
China, one Taiwan,' or 'two Chinas.' This will be opposed by
compatriots on both sides of the straits as well as by over-
seas Chinese, and will not win the approval of any country or
person who supports justice."
The United States' decision in September 1992 to reverse a

decade of policy and sell up to 150 F-16 fighter jets to Taiwan
sparked furious denunciations from China, which regards Taipeh
as an upstart regime with no international standing.
In November 1992, Beijing cranked up its fury again when

Taipeh agreed with France to buy 60 Mirage fighter jets. While
warning both Washington and Paris of serious consequences, Beijing
avoided direct attacks on Taiwan, which is a growing source of
investment and trade for China. Already due to take control of the
British colony of Hongkong in 1997, Beijing has adopted a concili-
atory approach to Taiwan's Nationalists, who fled to the island in
1949 after losing the mainland to communist control.
While civilian links have blossomed by January 1, 1994,

Taipeh continues to rule out direct official contact with Beijing —
reflecting growing impatience among China's leaders over Taiwan's
policy of "flexible diplomacy," designed to win the island new friends
overseas despite the international diplomatic ban insisted upon by
China.
JAPAN'S NEW MILITARY ROLE?
According to Col. Harry G. Summers Jr., who taught

East Asian affairs at the Army Command and General Staff Col-
lege:
"Like Mary Shelley's Dr. Victor Frankenstein who tried

to build a new man from a dissecting room corpse and cre-
ated a homicidal monster instead, some in the U.S. have been
trying since the end of World War II to build a new a n d
better Japan.
"The U.S. is pushing Japan to play a military role in the

world. [But is this] a good idea or a dumb one? Japan's
maritime self-defense force now includes 42 detroyers, 16
frigates, 36 landing craft, and 16 submarines. Japan's defense
build-up really got rolling in the 1980s. That's when the
Reagan administration began to crumble that Japan was
getting a free ride under the protection of America's nuclear
umbrella.
"Leaders such as Thailand's prime minister and Lee

Kuan Yew of Singapore feel that America haB created a
Frankenstein's monster out of Japan. Dr. Frankenstein's great
crime, said his monster before it lumbered off into oblivion,
was that he had created a man — a man without love or
friend or soul. He deserved his punishment. And the U.S. will
deserve its punishment as well if it forsakes its friendship
with the Japanese Self-Defense Force it took such pains to
create." (Harry G. Summers Jr., "The Reluctant Samurai,"
International Affairs, Feb. 1991, p. 7).
Relative to this is the danger of the passage of a law in

Japan that would legitimize the development of Japan's Self-
Defense Forces for peacekeeping purposes. Observers perceive
this as another smokescreen for the resurgence of Japan's
military might in the Asia-Pacific.
They add that the nightmare of Hiroshima and Naga-
saki should be prevented at all costs, but that could only be
achieved if Japan "will not walk the path of a military power."
(See E.C. Paras, Jr., "The Miyazawa Doctrine," Business Star,
Oct. 27, 1993, p. 4),
CONCERN FOR GERMANY AND JAPAN

International Relations Professor Harms W. Maull of the
Catholic University of Eichstatt, in his Germany and Japan: The
1
New Civilian Powers, wrote:
"As the post-war international order dissolves, some of
the initial concerns that informed and shaped it are resur-
facing. Some observers fear a return of Japan and Germany
to traditional temptation of military power politics. [They]
suspect that either State (or both) may revert to challenging
the status quo, or perhaps even try to replace it, with a Pax
Nipponica or Pax Teutonica. Others worry about the im-
plications of a changing distribution of economic power as a
result of Germany's and Japan's single-minded pursuit of
economic gain abroad and tendencies toward parochial and
closed societies and economies at home.
"Both Germany and Japan thus face the need to develop

international identities that explicitly recognize and accept
the facts of interdependence. Solidarity with other societies,
and a sense of responsibility for the future of the world and
particularly the global environment — are values that will
have to be inculcated. Those values must be developed do-
mestically to make effective international interdependence
policies possible. Paradoxically, the new challenges of inter-
national relations will require a much more active emphasis
on the domestic political side of international relations —
and particularly so in Germany and Japan."
SOME U.S. MILITARY ACTIONS

OTHER THAN DECLARED WARS
Lebanon
Fearful of the newly formed U A R . abetting the rebels of his
politically and economically torn country, President Camille
Chamoun appealed to the U.S. for military assistance. U.S. troops
landed in Beirut in mid-July, 1982 and left before the end of said
year, after internal and external quiet were restored. In Septem-
ber 1983, President Reagan ordered Marines to join an interna-
'Hannt W. Maull, "Germany and Japan: The N e w Civilian P o w e n , 'Foreign

Affairt. Winter 1990/91. pp. 91, 106.
tional peacekeeping force in Beirut. On October 23, 241 were killed

in the terrorist bombing of the Marine compound. On February 7,
1984, Reagan ordered the Marine contingent withdrawal. He ended
the U.S. role in Beirut on March 30 by releasing the Sixth Fleet
from the international force.
Grenada
A left-wing military coup resulted in the intervention of a
1,900-man United States contingent, supported by token forces
from Caribbean allies, which engaged an 800-man Cuban Force
and secured the island within a few days. The American combat
force was brought home two months later although a small non-
combat unit was left behind to assist in peacekeeping functions.
Panama
On Dec. 15, 1969, the Panamanian legislature proclaimed
dictator Gen. Manuel Noriega the nation's "maximum leader," and
declared a "State of war" with the United States. On Dec. 20th,
following several attacks on Americans, Pres. George Bush or-
dered over 20,000 U.S. military forces into action in Panama to
protect the lives of 35,000 American citizens he considered in "grave
danger," to apprehend Gen. Noriega for trial in the U.S. on federal
drug trafficking charges, to secure the safety of the Canal, and to
defend democracy in Panama. Noriega surrendered to U.S. troops
the first week in January 1990.
NOTE: That of Haiti is discussed in Chapter 14.
END OF 'STAR WARS'

U.S. Defense Secretary Les Aspin declared the end of the
Star Wars era, saying former President Ronald Reagan's vision of
a space-based anti-miBsile shield is no longer needed. Restructur-
ing the U.S. anti-missile research program will mean abandoning
exotic projects such as using X-ray lasers for a space barrier against
incoming missiles in favor of more mundane ground-based tech-
nology. The Strategic Defense Initiative will be renamed Ballistic
Missile Defense Organization.
— oOo —
Chapter 7
THE THIRD FUNDAMENTAL RIGHT:

THE RIGHT OF EQUALITY
MEANING OF EQUALITY IN PUBLIC

INTERNATIONAL LAW
By the fundamental right of equality, we do not mean abso-
lute equality: for certainly there are powerful and weak States;
there are rich and poor States; there are republican and autocratic
States. By "equality" we mean "legal equality," not "political
equality."
Legal equality as understood in this treatise, refers not to
equality in the law (for some States have more rights than others,
just as married men in general have more rights than married
women. [This inspite of or despite of the Family Code, at least in
the Philippines, a republican and democratic State I, and those of
age have more rightsjhan minors under the national law) but to
^ q u a l i t y "before the law*> (this means the application of the law to
the States in accordance with legality; this means also that whatever
rights a particular State has must be respected and whatever
obligations said State has must be complied with). Oppenheim
says that by the right of legal equality, States are generally re-
garded as equals, as International Persons, notwithstanding pat-
ent inequality as to size, population, power, degree or civilization,
wealth, and other attributes.' Thus, even a weak State possesses
2
rights which ought not to be disregarded by stronger ones.
'See Oppenheim, International Law, p. 238.

2
See Brierly.TVi* Law of Nations, p. 117.
THE THIRD FUNDAMENTAL RIGHT; 221
T H E RIGHT OF EQUALITY
IMPORTANT CONSEQUENCES OF THE LEGAL

EQUALITY OF STATES
(1) Each State has a right to vote — but to one vote only —
in all questions which can be settled only by consent. A contrary
agreement is, of course, permissible.
(2) The weights of the votes are ueually equal: this means
that the vote of the weakest and smallest State has as much weight
as the vote of the largest and the most powerful.
(3) The rule of par in parent not habet imperium — no State
can claim jurisdiction over another.
(4) The courts of one State do not, as a rule, question the
validity or legality of the official acts of another sovereign State,
so long as those ruleB take effect within the sphere of the tatter's
3
own jurisdiction.
(5) Equality can be retained only if there is dignity: thus,
by virtue of legal equality, a State has the corollary right to its
4
reputation, good name, and dignity.
VOTING RIGHTS
Under the Charter of the United Nations, the UN is supposed
to act in accordance with certain principles, the first of which is
"sovereign equality." Thus Art. 2, Sec. 1 of the Charter provides:
T h e Organization is based on the principle of the sovereign equal-
ity of all its members." This equality, however, has been impaired
by at least two ((2) other provisions:
(1) the presence of permanent and temporary members in the
Security Council; and
(2) the "veto power" possessed by a permanent member.
THE SOVEREIGN DEBTOR AND INTERNATIONAL LAW
State Immunity vs. Sovereign Borrowings

The sad phenomenon of some heavily-strapped debtor-Stales
opting for outright if not selective repudiation of their foreign loan
'See Oppenheim, op. cit., pp. 238-242.

*Se* Oppenheim, op. eit., pp. 261-253.
obligations have happened before. It is not strange, therefore, that

there is a felt need for a certain objective, factual and universally
applicable criteria for distinguishing between the public and pri-
vate acts of a foreign State — a distinction crucial to the restrictive
theory in order to solve one of the few remaining difficulties of the
law of State immunity.
Since external debt obligations are sovereign borrowings and,
therefore, are akin to commercial activities, it is but a matter of
elementary prudence to provide in the loan documents executed by
both debtor-States and lenders, a contractual definition of the
transaction possibly couched in the following terms: T h e borrow-
ings hereunder shall be private and commercial acts and shall not
be regarded as governmental or public acts." Or words to the same
effect. Such a contractual characterization of the financial trans-
action might go a long way in winning the court's favor in the
event that a sovereign debtor brings a case to it for adjudication
invoking State immunity from suit.
By going to the root of the matter, such a stipulation would

make it difficult, or at least particularly awkward, for (i) the debtor-
Stale to reopen at the time of the proceedings a basic issue of
definition to which it agreed in the first place; and (ii) the court
to substitute its own characterization for that adopted by the parties
(debtor-State and lender) without exposing itself to the reproach of
rewriting the contract for them.
Suffice it to say, private claimants are now afforded by the
Foreign Sovereign Immunities Act of 1976 (U.S.) the contractual
means to curtail the adverse consequences of the remnants of
immunity rules. For one, the Act provides new incentives to stipu-
lating waivers of immunity in international loan contracts that
give rise to a sovereign's external debt obligations. It is, therefore,
clear that to avoid international embarrassments, contractual
documents must contain provisions for the waiver of State im-
munity.
Whether such waivers should continue to take the form of

submission to the jurisdiction of courts of law or are to be framed
in the context of an arbitration machinery is an open question.
Traditional ways of thinking and finding additional support in the
Act, may favor the first alternative. New developments, in the law
of transactional arbitration may, however, provide new material
for reconsideration of a perennial problem. Only the future can tell
which of these two possible alternatives may ultimately emerge as
THE T H I R D F U N D A M E N T A L RIGHT: 223
the beat means of solving transactional loan disputes involving

foreign borrowing sovereigns.
Owing to the problems that beset the financially-strapped
sovereign debtors, We would like to share a cogent proposed
measure: The best remedy to obtain judicial redress in the satis-
faction of international financial obligations is to have a proviso in
the contract of foreign loan agreements providing that the debtor
State automatically accepts the jurisdiction of the International
Court of Justice (ICJ) in euits for the collection of the indebtedness,
i.e., a permanent adjudicating world tribunal would resolve a
dispute according to international law.
"Writers have put forward the need to increase the use of the
Court to settle disputes among States. Indeed, in order to build
confidence in the Court, the States must withdraw their declara-
tions which limit the jurisdiction of the Court. Thus, one govern-
ment proposed that the jurisdiction of the Court be made compul-
sory. Canada suggested the possibility of groups of like-minded
States to agree on coordinated declarations wherein they would
list those instances in which they could accept the jurisdiction of
the Court to adjudicate on problems arising from their mutual
interrelations. It was also suggested that the General Assembly
declare unequivocally that the recourse to the jurisdiction of the
Court is not per se an unfriendly act, but prompted by the desire
to advance the rules of law." (Jorge R. Coquia and Miriam Defen-
sor Santiago, Public International Law [Q.C.: U.P. Phil. Juris-
prudence), 1984).
After all, a sovereign debtor while it may be allowed by a
court to invoke the immunity doctrine as embodied in the former's
national Constitution (notwithstanding the restrictive theory), still,
this anachronistic abuse of monarchial privilege runs counter to
democratic notions of the moral albeit legal responsibility of the
State. (See dissenting opinion in Kennecott v. Copper Corp. v. State
Tax Commission, 327 U.S. 573, 580 [1946]).
For a State which assumes a contractual obligation and fails
to perform the same on account of its inability to meet certain
requirements, which inability it knew and was aware of when it
entered into the contract, should be held liable in damages for
breach of contract. (Arrieta v. National Rice & Corn Corp., 10 SCRA
79). Thus, under the law, obligations arising from contracts have
the force of law between the parties (debtor and creditor) and
must be complied with in good faith. (Ramos v. Cenral Bank, 41

SCRA 70).
We shall attempt below to present a synopsis of a most com-
plex area of international law in light of the problems facing the
world economy today. Thus, factual investigation into issues of
State immunity prompted by external debt obligations of sovereign
debtors leads to several conclusions.
Both the rules of State immunity and external debt obliga-
tions are undergoing a noteworthy evolution. Both have inspired
an abundant literature. Yet, for the most part, the literature in
point approaches each subject individually and makes no attempt
to consider whether the rules obtaining in one discipline might
affect those of the other.
Public and Private Finances

A State may borrow from public sources to finance economic
development. When immunity issues are concerned, the distinction
between public and private sources of finance has practical con-
sequences. Public lending institutions solve the problems of im-
munity from jurisdiction by means of contractual stipulations
providing for the submission of disputes to specific domestic courts
or to arbitration, since such provisions are tantamount to a waiver
of immunity from suit. In regard to immunity from execution, to
the extent that the loan documents refer to this issue at all, which
is rare, they leave the issue outstanding. In a typical example, the
General Conditions of the World Bank acknowledge that if an
award is not complied with by a borrowing member-country and
the Bank seeks to enforce the award against the borrower, en-
forcement will be possible only to the extent permissible under the
relevant domestic immunity rules.
Upon the other hand, private lenders are wary. Even though
the restrictive doctrine of immunity has gained markedly in ac-
ceptance, at least in those countries where lending financial mar-
kets are located and the borrower is likely to have assets, the rules
obtaining in these countries are not uniform. Before lenders can
avail themselves of the restrictive doctrine, they must overcome a
threshhold issue of characterization, i.e., whether the foreign bor-
rowings made by States should be regarded as commercial or
sovereign acts. However, recent decisions hold that loans contracted
by foreign States and public entities fall within the commercial
THE T H I R D F U N D A M E N T A L RIGHT: 225
category. (Allied Bank International v. Banco Creditor Agricola de

Cartago, 556 F. Supp. 1440 [S.D.N.Y. 1983], afTd., 733 F.2d 23 [2d
Cir. 1984]; Jackson v. Peoples Republic of China, 550 F. Supp. 869
IN.D. Ala. 1982], 22 I L M 75 [1983], set aside 23 ILM 402 [1984],
dismissed, 596 F. Supp. 266 [1984|). These loans, notwithstanding
their "purposes," remain by "nature" financial transactions. Thus,
the (U.S.) Foreign Sovereign Immunities Act of 1976 (or "The Act")
which took effect on January 19, 1976, is of direct interest to the
financial community since it dispels vestigial fictions concerning
the external debt of foreign sovereigns and extends to the borrow-
ings of foreign debtor-States the restrictive doctrine of immunity
generally applicable to contracts concluded by foreign States.
What Is External Indebtedness?

External indebtedness denotes the sum total of foreign bor-
rowing of a given country, taking all sources into account and all
maturities, public and private. Thus, the external debt of a country
is a contractual obligation like other financial transactions requiring
payment in foreign exchange. This obligation is not unique to credit
operations. Countries can lose their international creditworthiness
by failure to honor their obligations for payments on goods and
non-bank services as well as bank credits and loans.
Frequently, debtor countries appear to be in a strategically
advantageous position. The lender seemingly has more to lose than
the debtor with relatively small assets to seize by creditors. Debtors
may be tempted to threaten repudiation or default. This view can
obscure the fundamental need of sovereign debtors to borrow in
the future. Only the rare country which will not require future
borrowings is in a strong bargaining position.
In the Philippine experience on the foreign debt issue, it cannot
be denied that administrations may change but the government
continues. Except maybe in short instances of total chaos, the
government of a country has a continuing existence. But even in
the case of disruption, a new government inherits the legitimacy,
the assets and the liabilities of the old. For practical reasons, it
has to be that way.
All this is relevant to the issue of whether portions of the
foreign debt should be repudiated by the Philippines, which is run
by a new government under President Fidel Valdez Ramos. The
National Economic Development Authority (NEDA) under the Office
of the President has b e e n continuously studying the possibility of

selective repudiation of foreign commercial loans made during the
Marcos administration in order to reduce the debt burden.A for-
eign debt is like any other contract. Its basic elements are consent,
consideration, and subject matter. Repudiation of what purports
to be a valid contract can be justified if one or more of the ele-
ments are missing. It has been alleged that some contracts may be
repudiated because the loan proceeds were misappropriated. Ob-
viously, the creditor is not liable for the misappropriation of the
loan proceeds; the appropriate remedy is to go after thoBe who
misappropriated the money.
The Question of Debt Repudiation
Philippine government officials are only too careful in talking

about debt repudiation and even the fact that repudiation is being
studied should not be publicized because it can harm the credit-
worthiness of the government. At this time, the government can ill
afford to unduly antagonize actual and potential creditors.
Beyond difficulties with access to long-term and short-term
credit, defaulting countries could face reprisals. Foreign creditors
could attach any of the foreign assets of a defaulting country, as
well as its exports abroad (commercial airlines, ships, bank ac-
counts, shipments of commodities, and so forth). For example, in
1972, Kennecott Copper Corporation successfully obtained legal
seizure of Chilean copper shipments at a French port, as well as
Lhe freezing of Chilean bank accounts in New York, because
Kennecott maintained that Salvador Allende had paid inadequate
compensation for its expropriated copper mine. Parallel actions
could certainly be expected against countries defaulting on exter-
nal debt. Notably, the only three countries to repudiate debt in
recent decades — Cuba in 1961, North Korea in 1974, and Peru
in the early 1980s — did so under conditions that seriously impaired
their access to Western (especially U.S.) financial markets.
There iB, of course, a wide range of uncertainty about the

nature of such international responses. Along the continuum of
debt disruption, it is conceivable that if such important countries
as Brazil and Mexico declared an indefinite moratorium for rea-
sons of inability to pay, the U.S. government would make no at-
tempt to take reprisals, because of the desire to avoid more per-
manent jeopardy to political ties. Even in thiB more benign version
THE THIRD FUNDAMENTAL RIGHT: 227
of moratorium, however, private parties would have legal access to

the type of attachments and interdictions just described, and it
would be unlikely that Western governments would actively block
the private actors in these efforts. To be sure in this event, the
private concerns with truly large interests (especially the major
banks) would first seek to reestablish a payment schedule thru
negotiation before attempting to attach assets, because any assets
they could attach would be small relative to their claims on the
country. But in the event of extended inability to reestablish ne-
gotiations, these private concerns might eventually join in the action
of other private creditors to seize assets and shipments.
Under more aggressive circumstances, moreover, such as a

moratorium declaration coupled with internal government changes
moving significantly to the left (or to the nationalist-right) and
announced in terms laying the blame on Western nations, interna-
tional official reaction might reinforce private reprisals. At the
extreme. Western nations might impoee trade embargoes on the
defaulting country. Such a step would complete the process of
moving toward autarky that the country would risk when it first
decided on an extended moratorium.
The possibility of an international reprisal explains the su-

perficial appeal of the idea of a debtors' cartel. It would be more
difficult for industrialized countries to impose reprisals such as
asset attachments and trade sanctions on a wide coalition of debtor-
countries taking joint action. A debtor's cartel would be a political
coalition to ward off reprisals rather than a traditional economic
cartel regulating the supply of a product. The appeal of such a
cartel is greatest to the smaller countries and to the leBS credit-
worthy countries. If they could enrol large debtors into a common
front, small countries seeking to default could greatly reduce the
likelihood of foreign reprisals against themselves. Not .surprisingly,
however, such a cartel has held little appeal for the large debtor-
countries, even after the sharp deteriorations in their credit posi-
tions. They have no desire to tarnish their long-term credit
standings further by declaring a common front with smaller coun-
tries with even more severe debt problems. The very formation of
a debtors' cartel would be equivalent to signaling creditors that
they could expect aggressive behavior in the future, thereby cut-
ting back even further the availability of new voluntarily lending
now and in medium-term future.
Immunity from Jurisdiction

If a sovereign State can be sued in a foreign forum without
its consent or waiver, it cannot be said to be an "equal" of the
latter; hence we have the rule that in general, a State is "immune"
from the jurisdiction of other States. Thus, a foreign sovereign
cannot be sued before local courts without its consent in connec-
tion with acts performed by it pursuant to treaty provisions. (Boer
v. Hon. Tito Tizon, L-24294, May 3, 1974).
Under modern international law, it would seem that the im-
munity is only with respect to acts jure imperii — sovereign or
public acts, not with respect to acts jure gestionis — (private
actuations of the foreign State). However, when such a State sues
in a foreign tribunal, it lays itself open to counterclaims and it
cannot set up its immunity as a defense: this is a rule demanded
by fairness.
One case (Heaney v. Government of Spain ) decided in 1971

rejected the contention that the making of a contract whatever its
purpose, is a commercial transaction. This would lead to the
conclusion that a contract by a foreign government for the pur-
chase of bullets for its army or for the erection of fortifications
does not constitute sovereign acts. Thus, the plea of immunity was
upheld.
Several cases likewise upheld the plea of immunity involving

the Bank of Japan's exercise of its exchange control function as an
act of public power or at least an act performed in the interest of
a public service. In the same vein, a Belgian case held what might
be an actus jure imperii. Regulating external trade, decreeing
measures for the protection of the currency, concluding trade or
payments agreements with foreign countries, ordering or forbid-
ding transfers of currericy — all these constitute acts of the execu-
tive power since in such cases the State, whether of itself or thru
its agents, has a right of decision in the exercise of its prerogatives
that cannot be called into questioning, and is exercising its gov-
ernmental authority.
A foreign State may consider it in principle an affront to its

dignity to be subjected to the judicial processes of the forum State.
The risk that diplomatic relations between the two States will be
affected adversely is, however, considerably increased if the courts
of the forum State not only assume jurisdiction over the subject-
matter of the dispute, but are also prepared to authorize forced
execution against the property of the defendant-State situated in

the forum State.
Immunity from execution may always be invoked by the sov-
ereign debtor where the assets sought to be attached are capable
of being used partly for the public purposes of the State and partly
for its commercial purposes. Herein, the rule of immunity
will prevail. For public service assets are exempt from measures
of execution in another country. Thus, under Section 1610 of the
(United States) Foreign Sovereign Immunities Act of 1976,
immunity from attachment or execution are: (1) the property
of a foreign central bank or monetary authority "held for its own
account;" and (2) property used, or intended to be used, in con-
nection with a military activity if the property is of a military
character or is under the control of military authority or defense
agency.
Moreover, measures of execution cannot be levied against a

bank account in the name of a diplomatic mission of the Philip-
pines, for instance, and to the extent that there is prima facie
evidence that the account is used, at least in part, to finance the
normal expenses of the mission, since otherwise the performance
of the functions of the mission would be adversely affected. Suffice
it to say, the current practice seems to indicate that immunities
are accorded only in respect of activities which are public in char-
acter, official in purpose, or sovereign in nature.
The Gagara
Great Britain, Court of Appeals (1819)
FACTS: A ship owned by the West Russian steamship

company was requisitioned by the Russian Imperial Govern-
ment. The Russian Bolshevist Government overthrew the
Imperial Government, and among other acts, confiscated the
ship. Later, Estonia (which had been recognized by the Eng-
lish government as a de facto independent State) was able to
get hold of the ship and the Estonian National Council con-
demned the ship as a prize of war. The steamship company
sued in England for the return of the "Gagara."
HELD: England has no jurisdiction to entertain a suit

against a foreign sovereign State. The independence and dig-
nity of another sovereign State demand that no other State
rNTERNATIONAL LAW AND WORLD POLITICS
can have jurisdiction over the former's property although the

same be within the territorial jurisdiction of the latter."*
Raquiza v. Bradford
75 Phil. 50 (1945)
FACTS: Petitioners were members of the military per-
sonnel of the U.S. Army stationed in the Philippines, with
the permission of our government. When they were accused
by the Army of treasonable collaboration with the Japanese
(during the occupation), they were placed in confinement by
the U.S. Army. They asked for the writ of habeas corpus.
HELD: Petition should be dismissed because the U.S.

Army, being an instrumentality of the United StateB, is ex-
empt from the jurisdiction of our courts.
T u b b v. Griess
78 Phil. 249 (1947)
FACTS: Two civilian employees of the U.S. Army in the
Philippines (with the status, however, of U.S. military per-
sonnel) were accused by the U.S. Army of violating the Ar-
ticles of War for having allegedly misappropriated government
funds. They asked for the writ of habeas corpus on the ground
that the U.S. proceedings were illegal.
HELD: The petition should be dismissed. It is a settled
principle of International Law that a foreign country allowed
to march thru a friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt from the
civil and criminal jurisdiction of the place.
Query
A is the owner of an apartment in Manila leased to the
United States about the middle of 1945 Tor the duration of
the war and six months thereafter" to be used for billeting
and quartering officers of the U.S. Army stationed in the
Manila Area. Upon the termination of the lease, could an
action be instituted in a Philippine court for the recovery of
s
See Parliament Beige (1880) 5 P.C. 197, 214; See a/so Mighetl v. Sultan of
Johore 118941. ] Q.B. 149, 159.
THE RIGHT OF E Q U A L I T Y
possession assuming that the army officers therein housed

•efused to surrender the same? Explain.
ANSWER: Upon the termination of the lease, an action
can be instituted in a Philippine court for the recovery of
possession against the army officers concerned — otherwise
a private citizen would be helpless and without redress;
nonetheless, there can be no judgment of financial liability
(payable by a foreign State), for the simple reason that a
foreign government without its consent cannot be made a
defendant in our courts. Such exemption is one of the at-
tributes of an equal and independent State.* While it is true
that a State can be sued when as a consequence of a contract
7
it descends to the level of a private citizen, still this principle
applies only when the defendant is the State of the forum,
not a foreign State. Equality and dignity demand that we
cannot assume jurisdiction over a foreign State. The remedy
cannot be judicial in nature; diplomatic means must be re-
sorted to.
Lyons v. United States

55 O.G. 1364 (1958)
FACTS: Lyons entered into a contract with the U.S.
Government, for him to render Stevedoring Service at the
U.S. Naval Base in Subic Bay, Philippines. He later sued the
U.S. Government for alleged non-payment. However, he had
not previously complied with the procedure (stated in the
contract) required for filing a claim against the U.S. Gov-
ernment. Should the case be dismissed?
HELD: Yes, for failure to exhaust the necessary admin-
istrative remedies against the U.S. Government. (NOTE —
the statement made by the Court here that if the adminis-
trative remedies had been exhausted, suit could have been
brought againBt the U.S. Government for it had entered into
a contract, and thus descended to the level of a private citizen,
is clearly an obiter — an obiter that incidentally is erroneous
under traditional international law for here we are dealing
6
See Syquia. et al. u. Almeda Lopez, et al.. 47 O.G. No. 2, p. 665 (1949);
Marvel Blag. Corp. u. Phil. War Damage Com. 47 O.G. No. 5. p. 2309.
' S « Santos v. San log. et al.. 48 O.G. 4616.
with a foreign State, not our own. Of course, if the Act in-
volved is only jure gestionis, private in character, there would
be no immunity.).
State Immunity Doctrine and Sovereign

Debt Restructuring
Beyond tactical considerations, to understand the implica-
tions of our foreign debt problem, particularly sovereign debt re-
structuring, almost always leads to an important component of
whether the law involved is municipal law or international law.
Legal implications, after all, are not merely matters of conjecture.
Difficulties are encountered from the point of view of the
international financial lawyer. Thus, heavily-indebted nations like
the Philippines, Poland, and he A B M countries (Argentina, Brazil,
and Mexico) make for different problems and approaches.
By way of proposals, therefore, it is suggested that viable
restructuring agreement for the Fidel V. Ramos government should:
1. Provide the creditors with an expectation of receiving payment
as soon as possible,'given political necessities and need for im-
ports; 2. Assure the Philippines of the freedom to trade and ac-
cumulate foreign exchange reserves; 3. Make careful definitions of
"borrower," etc., so as to avoid hindering economic activity; 4. Pre-
cisely define external indebtedness, to include only borrowed
money in a foreign currency and guarantee thereof; 5. Accurately
provide the meaning of "lien" limiting the term, as it is, to the
legal security interest; and 6. Define international monetary re-
serves and to maintain such in an unencumbered form.
In addition, the Ramos government should: 1. Develop a

negative pledge clause that responds to economic realities. To cite
an example: The standard World Bank ( W B ) clause effectively has
many developing countries, by cross-default provisions, in default.
Also to be developed is a cross-default clause that protects both
debtor and creditor from precipitate action; 2. Pay attention to tax
indemnities (how broad should or need they be?) and limit set-off
rights, e.g., the "black hole" concept is both unmanageable and
unnecessary; 3. Establish a reasonable limit on expenses, e.g.,
unnecessary publications must be avoided; 4. Avoid the following
results, thus: (a) an agreement that is or will be in default on the
day of signature; (b) an agreement under which the recovery of the
economy is impeded; and (c) an agreement that violates the debt-
or's domestic laws or is politically offensive; 5. Avoid a prejudg-
THE THIRD FUNDAMENTAL RICHT: 233
men I attachment, which unnecessarily harasses central bank

operations and does more harm than good; 6. Decide as to the appro-
priate percentage of holders required for a waiver or an amendment
of the agreement; and 7. Pay attention to questions of the governing
law, and waivers of State immunity from suit wherein the Philip-
pines, as a sovereign debtor, should avoid being subjected to multi-
tude foreign jurisdictions. Thereupon, consent to jurisdiction should
be non-exclusive and limited to the essential fom.
In these circumstances, it is of prime importance to know
whether a defaulting foreign State can be sued before a court and,
if so, whether the final judgment obtained can be enforced against
the funds or property of the judgment debtor.
Specific legal questions that must be answered, include the
following, to wit: 1. What are the legal implications should the
Philippines refuses or is unable to pay its external debt obliga-
tions? Can legal sanctions such as the confiscation of its property
be imposed? Can the foreign creditor banks go after properties of
Filipinos abroad on the pretext that the latter are held responsible
for the acts of their government? 2. Is the Philippines, unlike a
private entity, immune to actions of courts? If not, can it be sub-
ject to litigation? If so, in what forum should the action be filed?
3. Assuming that a court suit does ensue, can the Philippines as
a sovereign debtor invoke the doctrine of State immunity? What
are the reasons for or against said invocation? Whose concept of
State immunity should be followed: the concept of the sovereign
debtor, the foreign creditor, or the forum? Are there any excep-
tions to the rule:? What are the instances when the doctrine may
be invoked?
If a suit is brought under the Foreign Sovereign Immunities

Act of 1976 in the U.S. on a loan contract specifying as governing
law the law of a foreign jurisdiction which happens to provide
absolute immunity, what is the reluctant effect? What substantive
law governs determination of the validity of an express waiver? Is
it the law of the foreign State, pursuant to which the allegedly
waiving State entity may, for example, lack the requisite author-
ity, or is it the law of the forum, which might uphold the waiver,
at least on the grounds of apparent authority?
Similarly, what law determines whether a "special arrange-

ment'' for service of process made by a foreign State is binding on
another entity of that State? What are the modes of procedure to
be followed in court proceedings, be they arbitral and/or adjudica-

tory? Who will have the burden of proof? What kind of proof would
be required to obtain an affirmative judgment? Will a motion for
reconsideration be allowed? Is there any mode of appeal? What is
the effect to a judgment rendered by the deciding authority or
entity? How can a judgment be enforced? Can there be attachment
at the commencement of the suit? If so, under what conditions, if
not, why not? Can there also be a levy on execution on the properties
of the Philippines as a debtor-State if said properties are located
in the country of the forum? May the sovereign debtor in the
course of the proceedings be held in contempt by the adjudicating
tribunal?
Necessarily, too, sanctions may be imposed on the Philippine

government in the event of a default on obligations.
Sanctions come in a variety of forms and, according to law-
yers and financial analysts, who have studied the range of possible
measures, the economic consequences can vary considerably. These
include forcible measures generally resorted to under international
law, thus:
New Investments. A ban on all new investments of subsidi-
aries, is one example of a sanction affected by market forces. Rather
than pump new money in the Philippine operations, parent com-
panies in the U.S. have been selling off assets or letting branches
use their profits to modernize. Results: a net flow of capital from
the subsidiaries to their U.S. headquarters rather than the reverse.
Less U.S. business activity in the Philippines not only crimps the
country's economic growth, deprives it of technology, but hits
employment hardest.
Total Trade Bmbargo.Th.ia measure (just like banning U.S.

loans to the Philippines) could clip the profits of businesses and
apply marginal pressure on the government on a significant scale.
A trade embargo will thus have much financial effect on Philippine
export earnings.
Disinvestment. Possibly, the most sweeping and controversial
sanction is one that will allow American companies to get rid of
their assets in the Philippines. A forced withdrawal will lead ei-
ther to a dissolution of these private U.S. assets or their disposal
at fire-sale prices to private buyers. The impact on the Philippines
will probably be at least a temporary loss in skilled management
and lower profits.
THE T H I R D FUNDAMENTAL RIGHT: 235
To abate any deleterious upshot, the Philippine government,

in anticipation of all possible sanctions, may develop a two-tier
exchange rate for the peso, with lower rates on money from the
sale of foreign assets, that will minimize its own capital loss in
any foreign-business pullout.
The U.S. Foreign Sovereign Immunities Act

There is today the Foreign Sovereign Immunities Act of the
U.S. or FSIA (28 U.S.C. 1330, 1602-1611) which provides a com-
prehensive scheme governing "when and how parties can maintain
a lawsuit against a foreign State or its entities in the courts of the
United States."
This statute grants immunity to foreign States and their
agencies or instrumentalities from the jurisdiction of the courts of
the U.S., except, inter alia, where the action is based upon an act
outside the territory of the foreign State elsewhere and that act
causes a direct effect in the U.S. or where the foreign State has
waived its immunity either expressly or impliedly.
In one case, however, which involved violations of interna-

tional law, the defense of immunity by a foreign sovereign under
the FSIA was declared inapplicable. In Ameralda Hess Shipping
Corporation vs. Argentina Republic (No. 86-7602, 86-7603, slip op.
2nd Cir., Sept. 11, 1987), where plaintiff sought damages by rea-
Bon of the extensive damage on his shipment of oil on board the
tanker Hercules, a neutral ship, which was hit by missiles fired by
Argentina during the Falklands War between Great Britain and
Argentina, the Court of Appeals for the Second Circuit reversed
the dismissal of the case by the Southern District Federal Court
in New York and .ruled that the FSIA does not apply to cases
involving claims of international law violations.
Commercial Risk vs. Sovereign Risk
It has been proven time and again that the multinational

structure of modern banking exposes deposits accepted at banks'
foreign branches to multiple schemes of regulations. Both the home
country of the bank and the hoat country of the branch may at-
tempt to impose restrictions on the use or withdrawal of deposited
funds. The law concerning the impact of these restrictions is un-
settled and, as a result, it is not clear whether or where a deposi-
tor may look for repayment of a bank's obligation in the event the
home or host country imposes such restrictions.
As we shall soon see, the problem appears in many shapes.
Can the depositor reasonably expect the law of the branch to
apply if it favors him, and still look to the home office if the law
applicable there favors him? Conversely, can the bank limit its
exposure, so that if it follows the law applicable where the deposit
is made it will be protected against double liability, and so that it
is excused from application of conflicting law of the home country
with respect to deposits made at foreign branches? Can the parties
determine or allocate the risks by contract and rely on the effec-
tiveness of such contracts? Looking at the problem from a third
side, to what extent are governments limited in the controls they
can effectively impose on transnational banking transactions?
This brings us to the litigation case involving Wells Fargo

Asia, Ltd. v. Citibank, N.A., No. 84-996 [S.D.N.Y., filed Feb. 10,
1984]. But first, a brief backgrounder of the case. Nineteen eighty-
three was a bad year for developing countries, and particularly for
those countries with large external debts. For the Philippines,
already burdened by external debts of more than $25 billion, the
assassination of Benigno "Ninoy" S. Aquino Jr. on Aug. 21, 1963
exacerbated the Philippine's economic problems. New investments
fell sharply; loans became even more scarce; capital flight increased.
On Oct. 5, 1983, the Philippine peso was devalued for the second
lime in four months, this time by 21.4%. On Oct. 14, foreign credi-
tor banks agreed with the government that all payments of prin-
cipal due on the nation's foreign debt could be postponed for 90
days, provided interest payments were continued.
On the next day, Oct. 15, 1983, the Central Bank of the
Philippines issued a Memorandum to Authorized Agent Banks
(MAAB47) which read as follows: "Any remittance of foreign ex-
change for repayment of principal on all foreign obligations due to
foreign banks and/or financial institutions, irrespective of matu-
rity, shall be submitted to the Central Bank thru the Management
of External Debt and Investment Accounts Department (MEDIAD)
for prior approval. Accordingly, total obligations to foreign banks/
financial institutions as of the end of business hours in New York
City on Oct. 14, 1983 shall not be reduced without prior Central
Bank approval. These measures shall apply to payments value
dated during the period Oct. 17, 1983 to Jan. 16, 1984. Appropri-
ate sanctions shall be imposed on banks which fail to strictly com-
ply with this directive."
Four foreign-owned banks were subject to MAAB47. By far

the largest in terms of deposits accepted was Citibank. Citibank's
Manila branch had accepted deposits from foreign sources, i.e.,
foreign obligations subject to the freezing of some $630 million, in
favor of some 50 non-Philippine financial institutions. Approxi-
mately half of these funds had been redeposited outside the Phil-
ippines in the interbank market, and the other half had been used
as the basis for loans to various Philippine enterprises. Citibank
announced that it would seek a license from the Central Bank to
pay back deposits as they matured, but that in the absence of
such a license it could not pay out of its Philippine assets and it
would not pay from funds maintained at branches in other coun-
tries or at its headquarters in New York, Citibank would, how-
ever, continue to pay interest on the frozen deposits, at a higher
rat^ than previously agreed. Note that MAAB47 does not purport
to restrain the payment of interest.
Both MAAB47 and Citibank's response provoked anxiety and
anger in the international banking community. Citibank's position
was that each of its overseas branches operates subject to the laws
of the country where it is established, and that by placing funds
in the interbank market in Manila, rather than in New York or
London, the depositors had, in return for higher interest rates,
assumed the risk of sovereign restraints in the country where the
deposits were placed.
One of the financial institutions that had placed funds with
Citibank Manila challenged Citibank in court. Wells Fargo Asia Lim-
ited (WFAL), the Singapore merchant bank subsidiary of Wells Fargo
Bank, N A , a national bank with its principal place of business in
San Francisco, filed suit against Citibank, N.A., not against the branch
in Manila, but against Citibank's home office in New York. Jurisdic-
tion was asserted both under 26 U.S.C. Sec. 1332 (1982) (diversity of
citizenship) and 12 U.S.C. Sec. 632 (1982) (federal jurisdiction over
suits involving international or foreign banking in which national
banks are parties).
W F A L , the Singapore company, had placed two six-month
time deposits with Citibank Manila in June 1983, each for $1
million. When the deposits matured in December 1983, W F A L had
demanded payment of principal and interest on the deposits by a
credit to a New York account, but payment, except for accrued
interest, had been refused. Citibank admitted receiving the depos-
its, but asserted that it was excused from performing the deposit
arrangements by M A A B 47.
At trial. Citibank elaborated its argument about the risk
assumed by the parties: when a lender (depositor) deals with a
multinational bank such as Citibank, the lender's (depositor's) risk
breaks down into two, legally distinct elements. As to the credit or
commercial risk, i.e., the risk of failure or illiquidity of the branch
where the deposit is made, the entire multinational enterprise
stands behind the obligations; as to sovereign risk, in contrast, the
lender (depositor) assumes the risk of restraints imposed both by
the government where the deposit is placed, here the Philippines,
and by the government of the home office of the bank.
In support of its contention concerning sovereign risk. Citibank

introduced reports obtained in discovery that showed how the Wells
Fargo Bank (WFAL's parent) monitored its investments monthly
according to its estimate of the safety of host countries, by use of
a color code that ranged from red-zone (investment prohibited)
thru yellow, green, and blue, to white zone (no restraint) countries.
(In June 1983, before the assassination of Aquino, the Philippines
was in the yellow zone in Wells Fargo's monthly report).
Citibank argued that this proved that W F A L , like other

participants in the Eurodollar market, assumed the risk of sovereign
interference with their investments; Wells Fargo, for its part,
responded that prudent management of its various placements
was not the same as agreeing to a legal allocation of risk, and that
a deposit placement in Manila with Citibank was not the same as
a loan to a Philippine commercial enterprise or even to say, the
Bank of the Philippine Islands.
In part, the dispute between Citibank and Wells Fargo was

a matter of words. Wells Fargo and Judge Knapp said Philippine
law did not prevent payment of the obligation from non-Philippine
assets. Citibank contended that MAAB47 had suspended the ob-
ligation of repayment, and that there was no requirement under
Philippine law for a foreign bank to remit funds to its Philippine
branch to be used to repay the deposit. Both statements are
probably correct, yet both could not be dipositive of the case. The
Second Circuit, after argument, remanded the case to Judge Knapp
for clarification of his findings.
On remand, Judge Knapp set out hie thinking in full. Citibank
is liable for the debt of its Manila branch and plaintiff is entitled
to look to Citibank's worldwide assets for satisfaction of its depos-

its. Nevertheless, as to the policy concern focused on the principle
that, in the absence of an agreement to the contrary, a U.S. bank
should not bear the risk that a foreign government will impose
restrictions on the deposits of its foreign branches, here the Dis-
trict Court had found that there had been just such an agreement.
As these lines are written, a petition for certiorari is pending
before the U.S. Supreme Court in thiB Wells Fargo case. But
whatever is the outcome of the current or of future actions in
court, the problem is not likely to fade away. The unforeseeable,
as already pointed out, is in fact foreseeable, and in this area the
time has come to deal with it.
In the Matter of the Arbitration Between

Maritime International Nominees Establishment
v. The Bepublic of Guinea, Appellant, U.S.A.,
Intervenor U.S. Court of Appeals, D.C., Nov. 12, 1902
21 I L M 1365 (1982)
Immunity from suit is implicitly waived when a State

enters into an agreement to arbitrate a dispute.
Victory Transport Inc. v. Comiaaria

General de Abastecimientos y Tranaportea
U.S. Court of Appeals, 2d Cir. (1964),
336 F.2d 354. Cert, denied 361
U.S. 394 (1965)
A claim of sovereign (State) immunity is denied unless

the activity in question falls within one of the categories of
strictly political or public acts and in which sovereigns have
traditionally been quite sensitive.
Such acts are generally limited to the following catego-
ries:
(1) internal administrative acts, such as expulsion of
an alien
(2) legislative acts, such as nationalization
(3) acts concerning the armed forces
(4) acts concerning diplomatic activity
(5) public loans

The restrictive theory adopted by the U.S. State Depart-
ment does not require sacrificing the interests of private liti-
gants to international comity in other than these limited
categories.
Chudian v. Philippine National B a n k

912 F. 2d, 1095, U.S. Court of Appeals, 9th
Cir., August 29, 1990
The dispute arose out of a 1985 settlement of litigation
between Vicente Chuidian, a Philippine national, and the
Philippine Export and Foreign Loan Guarantee Corporation
(Guarantee Corporation). As part of the settlement, the State-
owned Philippine National Bank (Bank) issued a letter of
credit to Chuidian on behalf of the Guarantee Corporation.
After the Government ofPreBident Aquino took office in 1986,
the Presidential Commission on Good Government (Com-
mission) was formed and "charged with recovering 'ill-gotten
1
wealth' accumulated by Marcos and his associates." The
Commission was authorized to enjoin acts that might frus-
trate its efforts. Raul Daza, a member of the Commission,
instructed the Bank not to pay on the letter of credit issued
to Chuidian, claiming that the Commission suspected that
the settlement had been fraudulently entered into to prevent
the revelation of facts concerning Marcos's involvement in
Chuidian's business enterprises.
Chuidian sued the Bank in state court for payment on

the letter of credit. The Bank removed the case to federal
court under the removal provisions of the Foreign Sovereign
2
Immunities Act of 1976 ( F S I A ) . Daza was added as a de-
fendant on the basis of his alleged interference with Chuidian's
contractual relations with the Bank. The district court dis-
missed the case against Daza for lack of subject matter ju-
risdiction. On appeal, the Court of Appeals for the Ninth
Circuit affirmed.
In holding that subject matter jurisdiction was lacking

over the claims against Daza, the Ninth Circuit addressed
'912 F.2d 1095. 1097.

1
26 U.S.C. Sec. 1603 (a)-(bi.
the following important iBBues under the FSIA: (1) whether

the FSIA applies to individuals acting in an official capacity;
( 2 ) whether a waiver by one "foreign State" may be attributed
to another where the same foreign government is involved;
(3) whether a national of a foreign State may bring a claim
against his own State for a taking in violation of international
law under the expropriation exception to immunity contained
in the FSIA; and (4) whether a taking claim may be brought
under the tort exception to immunity. However, before
reaching those issues, the court found it necessary to consider,
sua sponte, whether the district court had jurisdiction to hear
the claims against Daza absent a finding of immunity, even
though the parties had apparently agreed that jurisdiction
would exist under those circumstances.
On this latter issue, the court relied on 28 U.S.C. Sec.

1441 (d). Since the Bank clearly was a "foreign State" for
3
purposes of the FSIA, it had the right to remove the case to
federal court. Following the Fifth Circuit's decision in Arango
v. Guzman Travel Advisors Corp.* the court held that re-
moval of a case by a foreign State defendant removes the
entire action against all defendants. Therefore, the Bank's
removal of the case effectively "transferred the claims against
Daza to federal court, without regard to whether the [FSIA]
5
provides an independent basis for hearing those claims."
Turning to the issues under the FSIA, the court first

analyzed whether the F S I A has any applicability to indi-
viduals. The statute applies to "foreign States," which are
defined to include an "agency or instrumentality of a foreign
6
State." Both the plaintiff and the U.S. Government, which
filed a "Statement of Interest of the United States," argued
that Daza was not covered by the FSIA. In the plaintiff's
view, this meant that Daza was not entitled to any immunity.
In the U.S. Government's view, this meant that the issue of
Daza's immunity should be determined on the basis of the
common law as it existed before the FSIA, under which foreign
J
26 U.S.C. Sec. 1441 (d) (1988).
'621 F.2d 1371 (5th Cir. 1980).
^912 F.2d at 1099.
*2fi U.S.C. Sec. 1603 l i M b ) .
government officiate acting in an official' capacity were ac-

7 v
corded immunity.
The Ninth Circuit disagreed with both those views,

holding that the issue of Daza's immunity should be deter-
mined under the FSIA. While the court recognized that the
definition of "agency or instrumentality of a foreign State"
and the statute's legislative history appear to be addressed
principally to organizations, rather than individuals, it refused
so to limit the statute in the absence of a clear directive from
8
Congress. The court reasoned, on the one hand, that Con-
gress could not have intended to allow private litigants to
circumvent the F S I A simply by bringing suit against foreign
officials individually, and, upon the other hand, that Congress
could not have intended immunity questions against such
officials to be determined under a separate body of law
predating the F S I A . In this regard, the court noted that the
F S I A was intended to be a comprehensive codification of the
'See Restatement (Second) of the Foreign Relations Law of the United

States, Sec. 66 (1965). The court pointed out that the American Law Institute
issued the Restatement (Third) of Foreign Relations Law. which supersedes the
second Restatement and entirely deletes the discussion of the U.S.common law of
sovereign immunity in light of Lhe FSIA. 912 F.2d at 1103.
8
All three elements of the definition or "agency or instrumentality of a
foreign State" seem to contemplate legal persons, rather than natural persons. To
qualify, the person must be one
(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign State or political subdivision thereof,
or a majority or whose shares or other ownership interest is owned by a foreign
State or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States as defined
in Section 1332(c) and (d) of this title, nor created under the laws of any third
country.
26 U.S.C. Sec. 1603 (b). The legislative history contains the following para-
graph, further indicating that Congress was focusing on legal persons in drafting
Che definition:
As a general matter, entities which meet the definition of an "agency or
instrumentality of a foreign State" could assume a variety of forms, including a
State trading corporation, a mining enterprise, a transport organization such as
,i shipping line or airline, a steel company, a central bank, an export association,
a government procurement agency or a department or ministry which acts and
is able in its own name.
H.R. Rep. No. 1487. 94th Cong., 2d Seas. 15-16 (1976). reprinted in [1976]
U.S. Code Congress and Administration News 6604, 6614 (hereinafter House
'teportl.
law of sovereign immunity. Moreover, resort to the pre-1976

common law of sovereign immunity would resurrect the role
of the State Department in the judicial process. A principal
objective of Congress in enacting the FSIA had been to place
the iesue of sovereign immunity exclusively in the hands of
9
the courts.
Having held the FSIA applicable to the claims against
Daza, the court analyzed the various exceptions to immunity
contained in the FSIA to determine whether immunity should
be denied. The three exceptions at issue on appeal were the
10
waiver, expropriation and non-commercial tort exceptions.
Plaintiff apparently did not pursue its argument under the
commercial activity exception on appeal."
Under the waiver exception, a foreign State will be de-
nied immunity if it has waived its immunity, either expressly
or by implication. Plaintiff argued that both the Bank and
the Guarantee Corporation had participated in the suit
without raising the defense of immunity, and had thus waived
their own immunity and that of Daza." However, since this
argument depended entirely upon the attribution of the other
foreign States' alleged waivers to Daza, it was rejected. Re-
lying upon the Supreme Court's decision in First National City
13
Bank v. Banco para el Comercio Exterior (Bancec), the court
stressed that the acts of one foreign State entity cannot be
attributed to another absent extraordinary circumstances not
present in the case. Both Bancec and the legislative history
of the FSIA indicate that the separate legal personalities of
State entities generally must be respected; claims may not be
freely asserted against one for the wrongs of another, "absent
*28 U.S.C. Sec. 1602. Prior to enactment of the FSIA, foreign governments
had the option of petitioning the State Department for a "Suggestion or Immu-
nity." The filing of such a "Suggestion" was considered binding upon the courts.
Republic of Mexico u. Hoffman, 324 U.S. 30 (1945); Ex parte Peru, 318 U.S. 578
(1943).
10
28 U.S.C. Sec. 1605 (aHl), (3), (5).
"28 U.S.C. Sec. 1605 (aM2).
l2
In general, the filing of a responsive pleading without raising the defense
of immunity constitutes a waiver under 26 U.S.C. Sec. 1605 (aHl). House Report.
supra note 8, al 18.
"462 U.S. 611 (1963). See Foremost-McKesson. Inc. o. Islamic Republic of
Iran. 905 F 2d 438 (1990). summarized in 04 AJIL 922 (1990).
allegations of fraudulent purposes."" Therefore, the court

concluded, "any waiver of immunity by the Guarantee Corpo-
ls
ration or the Bank should not operate against Daza."
With respect to the argument that the prevention of
payment under the letter of credit constituted a "taking" of a
property under the U.S. Constitution, the court pointed out
that the FSIA's "taking" exception denies immunity only where
"rights in property taken in violation of international law are
16
in issue." In the court's view, since plaintiff was a Philippine
national, the taking could not violate international law:
"Expropriation by a sovereign State of the property of its own
nationals does not implicate settled principles of international
17
law." It was thus unnecessary for the court to determine
whether a "taking" had occurred within the meaning of the
FSIA.
The last immunity provision at issue was the non-

commercial tort exception, which provides, subject to certain
exceptions, that a foreign State will be denied immunity if
the claim is for "personal injury or death, or damage to or
loss of property, occurring in the United States and caused by
the tortuous act or omission of that foreign State or of any
official or employee of that foreign State while acting within
18
the scope of his office or employment." Without addressing
the various issues arising under this exception, the court
declined to entertain plaintiffs argument on the ground that
it was an attempt to recharacterize the same taking claim as
was rejected under 28 U.S.C^Sec. i605 (a)(3). Taking claims
against foreign States, the court held, must be analyzed under
u
9 1 2 F . 2 d al 1104. The House Report makes clear that the FSIA was not
intended to affect the subs tan live law of liability... or the attribution of respon-
sibility between or among entities of a foreign Slate; for example, whether ihe
proper entity of a foreign State has been used, or whether the entity sued is
liable in whole or in p a n for the claimed wrong.
House Report, supra note 6, at 12. A later passage dealing with immunity
from execution explains: "If U.S. law did not respect the separate juridical iden-
tities or different agencies or instrumentalities, it might encouraged foreign ju-
risdictions la disregard the juridical divisions between different U.S. corporations
or between a U.S. corporation and ils independent subsidiary." Id. at 29-.10
15
912 F.2d at 1104.
,fi
28 U.S.C. Sec. 1605(aM3).
"912 F.2d at 1105.
1 8
28 U.S.C. Sec. 1605(a)(5).
THE T H I R D FUNDAMENTAL RIGHT: 245
the specific statutory exception to immunity addressed to

takings; if the taking claim does not fall within the scope of
28 U.S.C. Sec. 1606 (aX3>, it cannot be entertained as a tort
claim under 28 U.S.C. Sec. 1605(a)(5).
Plaintiff had also argued in the alternative that Daza
could not be granted sovereign immunity since he was not
acting in an official capacity, but for personal considerations,
and since he had exceeded the scope of his authority. While
the court agreed with this principle, it disagreed with its
application to the case. In the court's view, regardless of his
• * • » * • . . motives in preventing payment on the letter of credit, Daza
was clearly acting as a member of the Commission, not as a
private citizen. Likewise, arguments based on motive were
insufficient to demonstrate that Daza had exceeded his
authority. Since Daza was held to have acted in his official
capacity and within the scope of his authority, and since
none of the exceptions to jurisdictional immunity contained
in the FSIA were found applicable, the dismissal of the claims
against Daza for lack of subject matter jurisdiction was af-
firmed.
LEGALITY AND VALIDITY OF OFFICIAL

ACTS OF A FOREIGN STATE
>i
A State must regard as legal and valid the official acts, de-
cisions, and decrees of a foreign State insofar as they operate
within the territorial jurisdiction of the latter; whether or not
effect can be given within the forum of the former is a question
resolved by Private International Law. Generally, however, such
acts, decisions, decrees, and laws can be recognized in the forum
if they are properly pleaded and proved, and if they do not come
within the following
(1) acts and decisions contrary to a sound and established
public policy of the forum;
(2) acts and decisions contrary to principles of morality
(contra bonos mores);
(3) procedural matters;
(4) penal laws and judgments;
(5) fiscal and administrative matters;
(6) acts which work injustice on the people or residents of

the forum;
(7) acts and decisions contrary to the vital interests of the
State;
(8) acts and decrees involving real property and also per-
8
sonal property, insofar as the Philippines is concerned.'
ACT OF STATE DOCTRINE /

The "Act of State Doctrine" is the doctrine that a State should
not inquire into the legal validityiof the public acts (legislative,
executive, judicial) of another State (or foreign sovereign powers)
done within the territory of the letter.
The classic American statement of the doctrine may be found
30
in Underkill v. Hernandez where Chief Justice Fuller said for a
unanimous Court (U.S. Supreme Court):
"Every sovereign State is bound to respect the inde-
pendence of every other sovereign State, and the courts of one
country will not sit in judgment on the acts of the government
of another, done within its territory. Redress of grievances by
reason of such acts must be obtained thru the means open to
be availed of by sovereign powers as between themselves."
Following this precept, the Court in that case refused to in-
quire into the acts of Hernandez (a revolutionary Venezuelan
Military Commander whose government had later been recognized
by the United States) which were made the basis of a damage
action in the U.S. by Underhill, an American citizen, who claimed
that he had been unlawfully assaulted, coerced, and detained in
Venezuela by Hernandez.
21
In Bernstein v. Van Heyghen Fre res Societe Annonyme, suit
was brought to recover from an assignee property allegedly taken,
in effect by the Nazi Government (German) because plaintiff was
a Jew. Recognizing the odious nature of this act of State, the Court,
"See ArU. 16 and 17, Civil Code, see also Paras, Philippine Conflict of Laws,
see also Minor, Conflict of Laws, pp. 9-26; Goodrich. Conflict of Laws, pp. 21-24,
30.
m
1 6 8 U.S. 250 p. 252; 42 L. Ed. 456.
'"2 Cir., 163 F. 2d 246.
through Judge Learned Hand, nonetheless, refused to consider it

invalid on that ground. Rather, it looked to see if the Executive
had acted in any manner that would indicate that United States
courts should refuse to give effect to such a foreign decree. Finding
no such evidence, the Court sustained dismissal of the complaint.
NOTA BENE:
Republic of the Phils, v. Marcos, et al.

No. 1465 — August Term 1906, Second Circuit
U.S. Court of Appeals
Judges Oakes^
Before the Act of state doctrine is applied even to
Ferdinand E. Marcos' public acts, the court must weigh in
balance the foreign policy interests that favor or disfavor such
application.
Otherwise stated, the acts that the Republic of the Phil-
ippines challenge must necessarily be scrutinized. Defend-
ants, upon the other hand, must present evidence that these
acts were public (e.g., that Marcos' wealth was obtained thru
official expropriation decrees or public monopolies). The court
then must decide whether to examine these public acts in
light of the considerations aforementioned. If it chooseB not
to do so — and the determination whether the Marcoses
(spouses Ferdinand and Imelda and children) obtained their
wealth illegally, and hence the determination of ownership of
the property at issue in this case, is impossible without such
scrutiny — the court should consider deferring to a Philip-
pine adjudication that comports with due process.
But in any event, at this stage we agree with the position
of the United States that the defendants have not discharged
their burden of proving an Act of State. Only after that burden
is met do other relevant factors need to be considered.
NOTE:
The Philippine government can profit much by watching
the recent developments concerning the treatment of foreign
defaults in domestic courts in the United States.
In Allied Bank International v. Banco Credito Agricola
de Cartago (757 F.2d 516, 2d Cir., 106 106 S. Ct. 30) decided
I N T E R N A T I O N A L LAW A N D W O R L D POLITICS
in 1983, the United States District Court for the Southern

District of New York has ruled that the Act of State doctrine
prevents a United States court from adjudicating a claim
based on a foreign borrower's default on a loan issued by U.S.
banks, when the inability to pay back the loan stems from
executive orders issued by the borrower's government.
Herein, the Costa Rican government passed two direc-
tives which prohibited the export of foreign exchange for the
purpose of repaying external debts. Specifically, the direc-
tives prohibited all institutions of the Republic from making
payments on the external debt without the prior approval of
the Central Bank in consultation with the Ministry of Finance.
The defendant-banks were subsequently informed that pay-
ment in United States dollars of foreign debt is not author-
ized, and is deferred. Said directives were enacted in re-
sponse to a serious economic crisis suffered by Costa Rica.
Because of the default in loan payments, the creditor-banks
brought suit in New York to invoke the acceleration clauses
of the promissory notes and recover the balances due.
The Court held that the Act of State doctrine may be

invoked by the defendant grounded on the principle that the
courts of one country will not sit in judgment on the acts of
the government of another within its own territory. That factor
is particularly significant where the act of the foreign govern-
ment has a public character. The Court concluded that the
crucial factor is that the conduct of the Costa Rican govern-
ment which prevented the payment of the notes was public in
nature, and its purpose is to serve a governmental function.
The Act of State doctrine, therefore, barred adjudication of
issues involving the non-payment of the money owed.
Indeed, as a result of the growth of international finan-
cial markets and the sovereign debt crisis, the Act of State
doctrine is now being applied to purely financial transactions.
NOTE: In adjudicating cases arising from purely
financial transactions, there is no doubt that both the foreign
sovereign and the United States courts can often assert juris-
diction over the debtor. The foreign sovereign may claim
jurisdiction because the debtor is present or domiciled in the
foreign sovereign's territory. (See e.g.. Allied Bank Interna-
tional v. Banco Credito Agricola de Cartago, 757 F.2d 516 [2d
Cir.] [loan from banking syndicate to sovereign-owned debtor],
T H E T H I R D F U N D A M E N T A L RIGHT: 249
cert, dismissed, 106 S. (t.30 [1985]). The U.S. court asserts

jurisdiction over the debtor on non-domicialiary factors (such
as consent to jurisdiction of U.S. courts). (Ibid .; See Callejo
v. Bancomer, S.A. 764 F.2d 110 [5th Cir. 1985] [investment
by an American in a foreign certificate of deposit]; See also
Perez v. Chase Manhattan Bank, N.A., 61 N . Y . 2d 460, 463
N.E. 2d 5, 474 N.Y.S. 2d 689 [expropriation or an individual's
bank deposits], cert, denied, 105 5. (t. 366 [1984]).
A7.B. :Cases involving the expropriation of foreign branch
offices of American banks may expose the limits of the Harris
v. Balk (98 U.S. 215 [1905]) approach of determining debt
situs solely by jurisdiction over the debtor. To illustrate: In a
typical foreign branch office case, let us say, the Bank of
America, Phils, branch, a new government (e.g., the Fidel V.
Ramos government) has come to power and expropriated ei-
ther the Philippine branch of Bank of America, a U.S bank
or an individual's account of the branch. Subsequently, a
foreign depositor sues the bank's head office in the U.S. for
the return of the deposits. The Bank may assert the Act of
State doctrine as an affirmative defense, claiming the situs of
the deposit was within the foreign sovereign's territory, i.e.,
in the instance in which the foreign branch office was open
and operating when individual accounts were expropriated.
(Edgardo C. Paras, Jr., International Law Aspects of the
Philippine External Debts [a doctoral dissertion], University
of Santo Tomas Graduate School, 1967, pp. xvii-xviii).
IS THE "ACT OF STATE DOCTRINE'' A PRINCIPLE

OF INTERNATIONAL LAW?
In the celebrated Banco Nacional de Cuba u. Sabbatino Case,"
the Supreme Court of the United States thru Mr. Justice Harlan,
held that the "Act of State" doctrine is not a principle of interna-
tional law. Failure to apply the doctrine does not constitute a
breach of international obligation, BUT neither does international
law forbid the application of the rule. The usual remedy of a citi-
zen aggrieved by an Act of State of a foreign country is not for him
to go to the courts of his own country (for his country's courts may
apply the "Act of State" doctrine), but for him to exhaust the local
remedies in the foreign country (including resort to its courts), and
"376 U.S. 399; 84 S. Ct. 923 (1964).

Tailing in this, to repair to the EXECUTIVE (not judicial) authori-

ties of hiB own State to persuade them to champion hia claim in
diplomacy or before an international tribunal.™
T H E S A B B A T I N O CASE
Banco Nacional de C u b a v. Sabbatino
376 U.S. 398; 84 S. Ct. 923 (1964)
FACTS: In 1960, an American broker entered into a

contract with a Cuban Corporation (the principal stockholders
of whom were residents of the United States) for the sale of
Cuban sugar. BecauBe of antagonism between the U.S.
Government and the Cuban Government under Fidel Castro
(and because of the eventual reduction by the U.S. Govern-
ment of the sugar that could be imported from Cuba — the
Cuban sugar quota), the Cuban government "expropriated"
(virtually, what took place was a "confiscation") the proper-
ties and rights of the corporation. To make sure that the
sugar would be shipped to the United States, the broker
entered into a new contract with a Cuban governmental in-
strumentality, promising to make payment to the latter. The
government instrumentality then assigned its right to another
Cuban governmental entity (the Banco Nacional de Cuba).
The bank subsequently instructed its New York agent to
deliver the necessary documents (e.g., the bills of lading, etc.)
to the broker, who in turn was supposed to turn over the
payment (money) to the New York agent. The agent turned
over the documents to the broker, but the broker refused to
give the money (though said broker had already received the
needed payment from its buyer). The Bank then brought this
action to recover the payment from the broker, as well as to
prevent Sabbatino (the receiver who had been appointed to
take care of the New York assets of the Cuban Corporation)
from making use of said purchase price. The first court (the
District Court) ruled against the Cuban bank — stating that
inasmuch as there was a violation of international law, the
Act of State doctrine could not be applied. On appeal, the
Court of Appeals affirmed the decision of the trial court. Aside
from refusing to apply the Act of State doctrine, the Court of
"See 1 Oppenheim, International Law. Sec. 115- ILaulerpacht. 8th ed.

1955); United States v. Diekelman, 92 U.S. 520.
THE THIRD F U N D A M E N T A L RIGHT: 251
Appeals relied on two letters of the U.S. State Department

which apparently expressed no objection to a judicial review
of Cuba's act of "expropriation." The Cuban Bank finally
appealed to the United States Supreme Court alleging that
in view of the Act of State doctrine, the U.S. should N O T
inquire into the legality or illegality of the Cuban action and
that, therefore, payment in its favor should be ordered.
HELD: The Act of State doctrine can be applied — for
while this is not a recognized principle of international law,
neither does international law prohibits its application.
In this particular case — and even though it is claimed
that the Act of State in question violates international law —
we should apply the Act of State doctrine in view of the
following reasons:
(1) There is great divergence today on the issue as to
what restrictions must be placed by international law on the
power of a State to expropriate the property of aliens (in fact,
Communist countries recognize no obligation on the part of
the taking country to pay just compensation — although they
have in fact provided a degree of compensation after diplo-
matic efforts);
(2) Secondly, if this Court will pass on the legality or

illegality of the Cuban expropriation, there may be a conflict
between our own Executive Branch and the Judicial Branch.
If the Executive Branch decides that the act is illegal and
will take proper measures to counteract the international
violation, the Judiciary may embarrass the Executive if the
courts will rule that the foreign act is valid (in this way, the
bargaining hand of the foreign country will be greatly
strengthened, with consequent detriment to American inter-
ests). Upon the other hand, if the Executive does not desire
to do anything about the foreign act, and the Judiciary finds
a violation of international law, the Executive will be greatly
embarrassed. When articulating principles of international
law in its relations with other States, the Executive Branch
speaks not only as an interpreter of generally accepted and
traditional rules, as would the courts, but also as an advocate
of standards it believes desirable for the community of nations
and protector of national concerns. In short, whatever way
the matter is cut, the possibility of conflict between the Judicial
and Executive Branches can hardly be avoided. (Incidentally,

the two letters of the State Department do not evidence
willingness by the Executive branch to a judicial testing of
the validity of the expropriation; they merely reflect the desire
of that Department not to make any statement bearing on
the litigation.);
(3) Thirdly, to disregard the Act of State doctrine would

be to render titles in foreign commerce uncertain with the
possible consequence of altering the flow of international trade.
If the attitude of the United States courts were unclear, one
buying expropriated goods would not know if he could safely
import them into this country. Even where takings known to
be invalid one would have difficulty determining, after goods
had changed hands several times, whether the particular
articles in question were the product of an ineffective State
act.
(4) Fourthly, however offensive to the public policy of

this country and its constituent States an expropriation of
this kind may be, we conclude that both the national interest
and progress toward the goal of establishing the rule of law
among nations are best seen by maintaining intact the Act of
State doctrine in this realm of its application. We also con-
clude that the Judicial Branch will not examine the validity
of a taking of property within its own territory by a foreign
sovereign government to the extent recognized by this country
at the time of suit in the absence of a treaty or other unam-
biguous agreement regarding controlling legal principles, even
if the complaint alleges that the taking violates customary
international law.
The judgment of the Court of Appeals is hereby RE-

VERSED and the case is remanded to the District Court for
proceedings consistent with this opinion.
AFTERMATH OF THE SABBATINO CASE

The ruling of the Court was widely criticized. In particular,
Professor Myres S. McDougal (Sterling Professor of Law at the
Yale Law School) said, inter alia, that while the Court in one aspect
applied international law, in another aspect, it disregarded in-
ternational law, and in effect validating a "lawless" act; and making
it effective in the U.S. Said he:
THE THIRD F U N D A M E N T A L RIGHT: 253
T h e international law which it did apply — in honoring

the Cuban confiscations — were the principles of jurisdiction
which confer upon States the competence to act. The inter-
national law which it refused to apply were the principles
imposing responsibility for acts even within jurisdictional
competence — the "bill of rights" — which would have pro-
tected private rights. The consequence, of this ambivalent
deference to principles which should have been regarded as
complementary and equally deserving of deference, was that
one set of principles was applied in a way to stultify the
major goals of both sets of principles: the minimization of
arbitrary coercion and the securing of stability in people's
expectation in cooperative activity across State lines."
THE SABBATINO AMENDMENT

As a consequence of the Sabbatino Case, the U.S. Congress
adopted the Sabbatino Amendment to the Foreign Assistance Act
of 1961. In effect, said amendment requires American Courts to
decide a case on the merits (and thus disregard the Act of State
doctrine) if there is an alleged violation of the principles of in-
ternational law in connection with expropriation or confiscation by
a foreign State of private properties. An important exception is made
in any case with respect to which the President determines that
application of the Act of State doctrine is required in that particular
case by the foreign policy interests of the United States, and a
suggestion to this effect is ruled on his behalf in that case with the
Court."
In view of the Sabbatino Amendment, the District Court to

which the U.S. Supreme Court had remanded the Sabbatino Case,
ruled that the Sabbatino Amendment is constitutional and can be
given (as expressly provided in the Amendment) retroactive effect.
Ordinarily, therefore, the complaint of the petitioner (Banco
Nacional de Cuba) should have been dismissed; however the Court
decided to first give the President a chance to suggest whether or
not the foreign policy interests of the United States required the
application of the Act of State doctrine."
"See Lowenfeld, The Sabbatino Amendment, 59 A.J.I.L. 899 (1965).

™Banco Nacional de Cuba v. Farr, 243 F. Supp. 957 (1965).
W.S. Kirkpatrick & Co., et al. v.

Environmental Tectonic Corp., International
29 I L M 182 (1990)
The Act of State doctrine only precludea examination of

the validity or legality of foreign governmental acts performed
in that government's territory.
Other considerations, such as motivation, play no part
in the application of the doctrine.
DIGNITY, GOOD NAME, AND REPUTATION

OF A STATE
The equality of States carries with it the corollary right to dignity,
good name, and reputation, the consequences of which follow:
(1) The right to demand that their Heads of State shall not
be the object of libel, slander, or defamation of whatever kind;
(2) The right to certain exterritorial rights and diplomatic
immunities;
(3) The right to have their symbols of authority, such as
flags and coat of arms, treated with due respect; and
(4) The right to punish acts derogatory to their dignity as
26
States.
SYMBOLIC OR RITUALISTIC EQUALITY

To symbolize the theoretical equality of sovereign States, the
alternat has been devised: this is the procedure whereby the sig-
natories to a treaty Bign in an alternate manner (the order may be
a regular one or one determined by lot), the representative of each
State signing first (the name of his State appears first) the copy
which appertains to his own State."
REALISTIC "INEQUALITY"
The dominance and primacy of the United States in Western
Affairs and of Japan in Pacific Affairs, have more or less restricted
**See Oppenheim, op. cit.. pp. 251-253.

" S e e Oppenheim, op. cit., p. 249.
MENTAL RIGHT: 266
EQUALITY
equality."** So long as self-help

neans of enforcing international
M
ya be at a handicap. The hia-
odern" contempt by Borne States
medieval history is a history of
y is a history of powers, forces,
> other hand, the question has
Les ask for as much representa-
towers? To grant them complete
iman progress; the democratic
31
ave this effect.
Chapter 8
THE FOURTH FUNDAMENTAL RIGHT:

THE RIGHT OF PROPERTY
AND JURISDICTION
THE RIGHT TO PROPERTY /

To exist, a Stale must.Tiave property, i.e., domain; there a r e
three kinds of domain: the\jtefBSBcial domain, the maritime of
1
fluvial domain'and the aerialdemain. Aside from "domain," the
following properties also~6eTong'to~l;he state: public buildings, for-
tifications, palaces, arsenals, arms, ammunitions, official residences
2
and public vessels.
BAR
What do you understand by the phrase "the territorial pos-
session of a State?"
ANSWER: In one sense, territorial possessions include a
colony, a dependency, a protectorate, a suzerainty, and a sphere of
influence. In another sense, it includes the territorial, maritime,
and aerial domain of a State. Wilson is authority for the statement
that the domain of a State consists of the sphere over and within
which State authority exists. It includes the land comprising the
State together with colonies and dependencies to which the State
has a valid title; the maritime or fluvial domain, which extends to
the water area over which the State exercises acts of sovereignty;
and the aerial domain which covers the space above the land of
3
the State.
'See Wilson, Handbook of International Law. p. 45.

2
Ibid.
3
See Wilson, Handbook of International Law. p. 46.
256
THE FOURTH F U N D A M E N T A L RIGHT: 257
THE RIGHT OF PROPERTY A N D JURISDICTION
THE NATIONAL TERRITORY

In the 1987 Constitution of the Philippines, the national
territory is defined as follows:
The national territory comprises the Philippine archi-
pelago, with all the islands and waters embraced therein,
and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial
and aerial domains, including its territorial sea, the sea-bed,
the subsoil, the insular shelves, and other submarine areas.
The waters around, between, and connecting the -islands of
the archipelago, regardless of their breadth and dimensions,
form part of the internal waters of the Philippines. (Sec. 1,
Art. I, 1987 Constitution).
NOTE: Under the 1935 Constitution the national territory
was delimited as follows:
The Philippines comprises all the territory ceded to the
United States by the Treaty of Paris concluded between the
United States and Spain on the tenth day of December,
eighteen hundred and ninety-eight, the limits of which are
set forth in Article I I I of the treaty, together with all the
islands embraced in the treaty concluded at Washington,
between the United States and Spain on the seventh day of
November, nineteen hundred, and in the treaty concluded
between the United States and Great Britain on the second
day of January, nineteen hundred and thirty, and all terri-
tory over which the present Government of the Philippine
Islands exercises jurisdiction. (Sec. 1, Art. I, 1935 Constitu-
tion).
TERRITORIAL DOMAIN ^
The tanitorial domai/ inrliiHPHjfrppprHi»s nf pnhlifl dominion
wn
as well as yroperjaea_ofjprivate •J ers|hi.p. Properties ofipublic
dominion include those forjtublif one, tfjose tof'public service., and
those for the development of the national wealth. Thev may be
exemplmedTrespectively, byjoads, by ^government -km 11 du\ga and
by forest ?nd mineral landBTProperties bLprivate ownership, upon
the other hand, consist ofj>aJriraonJ^l_propertieB of the govern-.
7
merit (such as Jflpda acjnjrPfl thru qwr"*** prnreedingHt and ul
those, vested in individuals, whether owned singly or collectively.
Even the private properties are subject to certain inherent restric-

tions by the State: eminent domain, police power, and taxation.
MARITIME OR FLUVIAL DOMAIN

The maritime' or fluvial domainfconsists of rivers, lakes, bays,
gulfs, straits, and canals. Theoretically, there are two (2) kinds of
waters:
(1) the internal or inland national waters (these are com-
pletely within the territory);
(2) the external or territorial or maritime waters (these are
those found within the maritime or territorial zone, along the
coastline).
THE MARITIME OR TERRITORIAL ZONE

(a) Definition — t . h p laritime or territorial wme'bf a
, State consist" nf that, atrip ftf w g ( e r along its coastline and
t
ha g t Q > ; p
^J- over which t ° ky intprnat.innal law to exercise
^ jurisdiction fhiRtorir-nHyrthi* width has been three nautical
l miles, because at the end of the 18th century, the range of
artillery was about three miles or one marine league.) The
range was essentially for purposes of self-defense. The rule is
sometimes adverted to as the Marine League Rule or the
Three-Mile-Limit Rule/ ^ ~"
(b) From what place computed:
From theiandward site, the maritime belt begins at the
louhigQter mark (as distinguished from the high-water mark
caused by high tides). This seems to be the prevailing weight
of authority. Ordinarily this low-water mark is a "normal base-
line"; (see opinion of the International Court of Justice in the
Fisheries case between England and Norway); however, when
the coast is deeply indented, a straight line joining the points
of extremity must be drawn, resulting in the straight base line
theory of the International Law Commission, an official UN
agency.
'See Oppenheim, op. cit., p. 444.

T H E FOURTH FUNDEMANTAL RIGHT: 2S9
Fisheries Case Between England and Norway

I . C J . Reports (Dec. IB, 1951)
FACTS: In 1935, Norway issued a decree reserving cer-
tain fishing grounds along its northern coast Tor the exclusive
use of its fishermen. In the decree, Norway used the normal
baseline as the starting point in the measurement of Norwe-
gian territorial waters. Is this proper?
HELD: The method is in accordance with international
law.
j'"*-. (c) The seaward limits:
While the three-mile limit has been the historical width
of the territorial sea or maritime belt, still this distance has
been traditionally regarded merely as the minimum,* and
today the rule is practically obsolete. Thirty-six years ago, only
20 out of over 70 coastal States adhered to the 3-mile rule.
Indeed, after World War II, the rule was better known for its
6
violation than for its observance. Several countries extended
the limits for the following reasons:
(1) the safeguarding of fisheries;
(2) as a necessary act of self-preservation ("pro-
tective jurisdiction");
(3) for punitive action, when the pursuit is con-
tinued to the open seas;
(4) for the apprehension of pirates and smugglers;
and
(5) for the operation of revenue, sanitation, and
7
police rules.
For several years, starting in 1958 and 1960, there had
been international conferences at Geneva, New York, or some
other suitable venue, for the formulation of rules on the sea.
While there was tentative agreement (a "convention") on the
territorial sea and the contiguous zone, which recognize the
s
Hans Kelsen, Principles of International Law. p. 220.
Tolentino, T h e Philippine Territorial Sea." a speech delivered bgfo
Second UN Conference on the Law of the Sea at Geneva, in his capacity as
or the Philippine Delegation.
'See Oppenheim, op. cit., pp. 448-454.
260 I N T E R N A T I O N A L L A W AND WORLD POLITICS
sovereignty of the coastal State over the maritime belt, but

allow the right of innocent passage of foreign merchant ships,
still the most fundamental question was left unanswered:
namely, what is the extent of the territorial sea or the mari-
time zone? Several distances were proposed: 3 miles, 6 miles,
9 miles, 12 miles, even farther limits; unfortunately, not one
was agreed upon. White the International Law Commission
1
recommended a distance of twelve miles," Senator Arturo
Tolentino, speaking in behalf of the Philippines, proposed
that although the twelve-mile rule may perhaps be justified,
still the following points ought to be considered.
(1) the rule should not have a retroactive effect, in

other words, existing vested rights must be respected, for
instance:
(a) the fishing rights of foreigners inside the con-
tiguous zone of the coastal State;
(b) territorial boundaries of archipelagoes (such as
the Philippines). (NOTE: The territories of the Philip-
pines have been set forth in the Treaty of Paris between
the United States and Spain — December 10, 1898 —
and in the Treaty of Washington between the United
States and Great Britain — January 2, 1930. Over said
territories, both on land and on the sea, the United States
continuously exercised sovereignty till the independence
of the Philippines in 1946; after independence, the
Philippines continued said exercise of sovereignty.
Throughout this period, "there was no protest from
anyone against the exercise of such sovereignty. This
title of the Philippines to a wider extent than twelve
miles of territorial sea, therefore, has both a legal and
a historic basis. Such title cannot and should not be
affected adversely by any new rule on the breadth of the
territorial sea that may be adopted in this conference. A
historic title is a generally recognized basis of acquired
or established right.""
'"These are 12 nautical miles measured from appropriate baselinos iwith

the straight base lines method being allowed).
Tolentino. op. cit.
THE FOURTH FUNDAMENTAL RIGHT: 261
THE RIGHT OF PROPERTY AND JURISDICTION
(2) the rule should not adversely affect archipelagoes

(like the Indonesian Archipelago). Archipelagoes are groups
of islands with various points of extremities. The baseline for
their territorial sea must be computed by drawing a line
connecting said extremities, otherwise there is a danger that
waters inside the archipelago may be considered as part of
the open seas. In the case of the Philippines, the rule must
even go further — in view of the historic basis of the coun-
9
try's boundaries. NOTE: In 1961, Congress approved a bill
which is now a law — Rep. Act No. 3046 — "An Act to Define
the Baselines or the Territorial Sea of the Philippines." The
purpose of the Act "is to clarify the baselines of the Philip-
pine territorial sea by specific description (latitude, longi-
tude, azimuth, distance in meters). This is important so that
those concernedmay know which part of our waters is inland
waters and which part is territorial sea in those areas where
inland waters and territorial sea meet. Under accepted rules
of international law, foreign merchant vessels have the right
of innocent passage in the territorial sea, but they have no
such right in the inland or internal waters of a coastal State.
Furthermore, there may be different rules applicable to ves-
sels for preventing collisions at sea when they are in inland
10
waters." Under the Act itself, "the baselines from which the
territorial sea of the Philippines is determined consist of
straight lines joining appropriate points of the outermost is-
lands of the Archipelago." Sec. 2 of the Act says that "all
waters, within the baselines provided for in Section One hereof
are considered inland, or internal waters of the Philippines."
THE NEED FOR AN ACCEPTED

LAW OF THE SEA
In the UN Conference of the Law of the Sea held in New
York (May 23 to July 15, 1977), then UN Secretary-General Kurt
Waldheim warned of the need for an accepted law of the sea. Said
he:
"If a new and broadly accepted law of the sea does not
emerge thru international agreement, we face a prospect of
'See Tolentino, op. cit.

'"Explanatory Note to the Act.
each State determining its own view, with ever widening

claims to ocean space and resources. The acceptance of such
a situation will be at the expense of justice and would risk
1
unforeseeable possibilities of conflict."" "
AT LONG, LONG LAST WE NOW HAVE THE

CONVENTION ON THE LAW OF THE SEA
(DECEMBER 10,1962 — AT JAMAICA)
After many years, there was finally signed at Jamaica on
December 10, 1982 a "Convention_of the Law of the Sea." There
was, however, one dismal note: the United States refused to sign
the Convention. Important features of the Convention, include the
following:
/ (1) frgnl frmrnn nf the Tnrrfcrinl Irniîfrho air ana/p n\wtt
it, and of its bed and subsouf
a) the sovereignty of a coastal State extends, beyond
its land territory and internal waters, and in the case of an
archipelagic State, its archipelagic waters to an adjacent belt
of sea, described as the TEHBJTORIAL SEA.
b) the sovereignty extends to the air space over the
territorial sea, as well as to its bed and subsoil (Part I I ,
Art.II, Sections 1 and 2).
(2) Breadth of the Territorial Sea* — Every State has the
right to establish the breadth of its territorial sea up to a limit not
exceeding twelve (12) nauticalîhilef measured from normal
baselines (low water baselines) (Art. 6), or in localities where the
coastline is deeply indented or when there is a fringe of islands,
straight baselines (connecting the outermost projections') may be
formed. (Art. 7, No. I ) .
vÔ) rrij'if i I'fiMiiiiini n i — g /
Simply put, there are two features of this right:
a) there is a "passage"
'"•Jorge R. Coquia (a retired Justice or the Court of Appeals and later to

become Legal Adviser or the Department of Foreign Affairs*, "The Third UN
Conference on the Law or the Sea: Its Achievement* in the 1977 Seaaions." The
Philippine Yearbook of International Law, Vol. VI, 1977, p. I.
T H E FOURTH FUNDEMANTAL RIGHT: 263
b) the passage must be "innocent"

Definitions:
a) ^Dassagt'' means navigation thru the territorial êa^
for the purpose of:
^ ( 1 ) traversing that sea without entering internal
waterB or calling at a roadstead (used for loading, un-
loading, anchoring) or port facility outside;
(2) proceeding to or from internal waters as a call
at such roadstead or port facility. (Art. 18, 1, a and b).
[NOTE: Passage shall be continuous and expeditious.
However, passage includes stopping and anchoring but only
insofar as the same are incidental to ordinary navigation or
are rendered necessary hy fnrf^rmjrure or distress or for the
purpose of rendering assistance to persons, ships, or aircraft
in danger or distress. (Art. 18, No. 2)].
^6) Innocent passage — not prejudicial to the peace,
good order, or security of the coastal State (Art. 19, No. 1).
There is prejudice if the foreign ship, while on the territorial
sea, engages in any of the following activities:
1) any threat or use of force against the security,
territorial integrity or political independence of the
coastal State, or in any other manner in violation of the
principles of international law as embodied in the Charter
of the United Nations;
2) any exercise or practice with weapons of any
kind;
3) any act aimed, at collecting information to the
prejudice of the defense or security of the coastal State;
4) any act of propaganda aimed at affecting the
defense or security of the coastal State;
5) the launching, landing, or taking on board of
any aircraft;
6) the launching, landing, or taking on board of
any military device;
7) the loading or unloading of any commodity,
currency, or person contrary to the customs, fiscal, im-
migration or sanitary laws and regulations of the coastal

State;
8) any act of willful and serious pollution con-
trary to the Convention on thelâw of the Sea;
9) any fishing activities;
10) the carrying out of research or survey activi-
ties;
11) any act aimed at interfering with any system
of communication or any other facilities or installations
of the coastal State; or
12) any other activity not having a direct bearing
on passage (Art. 19, No. 2, a to i ) .
(4) ^/Criminal Jurisdiction om^Board a Foreign Ship r—
1) The criminal jurisdiction of the coastal State should
not be exercised on board a foreign ship passing thru the
territorial sea to arrest any person or to conduct any inves-
tigation in connection with any crime committed on board the
ship during the passage, save only in the following cases:
) / ( a ) if the consequences of the crime extend to the
coastal State;
^ b ) if the crime is of a kind to disturb the peace
of the country or the good order of the territorial sea;
JK) if the assistance of the local authorities has
been requested by the master of the ship or by a dip-
lomatic agent or consular officer of the flag State; or
hl
^d)' ir*sucn 'measnres^re rfece^saryôr^'tne^sup-
pression of illicit traffic in narcotic drugs or psychotropic
substances. .
2) The above provisions ao not affect the right of the
coastal State to take any steps authorized by its laws for the
purpose of an arrest or investigation on board a foreign ship
passing thru the territorial sea after leaving internal waters.
3) In the cases provided for in paragraphs 1 and 2.
the coastal State shall, if the master so requests, notify a
diplomatic agent or consular officer of the flag State before
taking any steps, and shall facilitate contact between such
THE FOURTH FUNDAMENTAL RIGHT; 265
agent or officer and the ship's crew. In cases of emergency,

this notification may be communicated while the measures
are being taken.
4) In considering whether or in what manner an ar-
rest should be made, the local authorities shall have due
regard to the interests of navigation.
. 5) Except as provided in Part XII or with respect to
violations of laws and regulations adopted in accordance with
Part V, the coastal State may not take any steps on board a
foreign ship passing thru the territorial sea to arrest any
person or to conduct any investigation in connection with any
crime committed before the ship entered the territorial sea,
if the ship, proceeding from a foreign port, is only passing
thru the territorial sea without entering internal waters.
(5) Civil Jurisdiction in Relation to Foreign Ships
1) The, coastal State should not stop or divert a for-
eign ship passing thru the territorial sea for the purpose of
exercising civil jurisdiction in relation to a person on board
the ship.
2) The coastal State may not levy execution against
or arrest the ship for the purpose of any civil proceedings,
save only in respect of obligations or liabilities assumed or
incurred by the ship itself in the course or for the purpose of
its voyage thru the waters of the coastal State.
3) Paragraph 2 is without prejudice to the right of the
coastal State, in accordance with its laws, to levy execution
against or to arrest, for the purpose of any civil proceedings,
a foreign ship lying in the territorial sea, or passing thru the
territorial sea after leaving internal- waters.
1
(6) Contiguous Zone
1) In a zone contiguous to its territorial sea, described
as the contiguous zone, the coastal State may exercise the
control necessary to:
/ a ) prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations within its
territory or territorial sea; and
punish infringement of the above laws and
regulations committed within its territory or territorial sea.
2) The contiguous zone may

nabtfeal nriles feBLtbfJ ^
jge~uwritorai n a is
(7) Archipelagic States
Use of Terms
For the purposes of this Convention:
(a) "archjoelagic means a State constituted
wholly by one or more archipelagoes and may Include other
islands; and
1
(b) "arehipelag* " meanB a frrnnp nr islands, including
parts of islands, interconnecting waters and 'other natural
features which are so closely interrelated thai such islands,
waters and other natural features form ani intrinsic geo-
graphical, economic and political entity, or which historically
have been regarded as such. y
Afchiffefagic Baselines f
1) An archipelagic _S_tatP may*nraw nrxaight
archipelagic baselines joining the outermost points of
thVoutennosriBranqs and drying reefs of the archipelago
provided that within such baselines a r e included the
main islands and an area in which _the r_aiiQ.o£lhe_area
of^He~water "toTh"eârea_of theJancLaniJuding__atolls, is
between 1 to 1 and 9 to 1.
2) The length of such baseline shall not exceed

lQOjiaulicai^Tmles, except that up to 3 per cent of the
total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125
nautical miles.
3) The drawing of such baselines shall not de-
part to any appreciable extent from the general con-
figuration of the archipelago.
4) Such baselines shall not be drawn to and from
low-tide elevations, unless lighthouses or similar instal-
lations which are permanently above sea level have been
built on them or where a low-tide elevation is situated
wholly or partly at a distance not exceeding the breadth
of the territorial sea from the nearest island.
THE FOURTH FUNDEMANTAL RIGHT: 267
5) The system of such baselines shall not be

applied by an archipelagic State in such a manner as to
cut off from the high seas or the exclusive economic zone
the territorial sea of another State.
6) If a part of the archipelagic waters of an
archipelagic State lies between two parts of an immedi-
ately adjacent neighboring State, existing rights and all
other legitimate interests which the latter State has
traditionally exercised in such waters and all rights
stipulated by agreement between those States shall con-
tinue and be respected.
7) For the purpose of computing the ratio of water
to land under paragraph 1, land areas may include water
lying within the fringing reefs of islands and atolls,
including that part of a steep-sided oceanic plateau which
is enclosed or nearly enclosed by a chain of limestone
islands and drying reefs lying on the perimeter of the
plateau.
8) The baselines drawn in accordance with this
article shall be shown on charts of a scale or scales
adequate for ascertaining their position. Alternatively,
lists of geographical coordinates of points, specifying the
geodetic datum, may be substituted.
9) The archipelagic State shall give due public-
ity to such charts or lists of geographical coordinates
and shall deposit a copy of each such chart or list with
the Secretary-General of the United Nations.
Measurement of the Breadth of the Territorial Sea,

the Contiguous Zone, the Exclusive Economic Zone
and the Continental Shelf
The breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall
be measured from archipelagic baselines drawn in accord-
ance with Article 47.
Legal Status of Archipelagic Waters, of the Air Space

Over Archipelagic Waters and of their Bed and Subsoil
1) The sovereignty of an archipelagic State extends to
the waters enclosed by the archipelagic baselines drawn in
accordance with Article 47, described as archipelagic waters,

regardless ol" their depth or distance from the coast.
2) This sovereignty extends to the air space over
the archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
3) This sovereignty is exercised subject to this
Part.
4) The regime of archipelagic sea lanes passage
established in this Part shall not in other respects affect
the status of the archipelagic waters, including the sea
lanes, or the exercise by the archipelagic State of its
sovereignty over such waters and their air space, bed
.and subsoil, and the resources contained therein.
(Sr Exclusive Economic Zone)

This zone shall be beyond and adjacent to the territorial sea
and shall not extend beyond 20ti'nautical mileaTrom the baselines
from which the breadth of the territorial sea is measured. (Arts.
55 and 57).
NOTE:
RP LAW OF THE SEA BOUNDARIES
AND LEGISLATIVE DELINEATION
The Philippine Department of Environment and Natural
Resources, in a position paper stated, inter alia, the need for
legislative delineation of Philippines' Law of the Sea boundaries.
Thus:
"The Philippines needs to properly identify its territo-
rial boundaries thru legislation in order to maximize use of
its marine jurisdiction over its territorial limits. It is now,
therefore, necessary for the Philippines to formulate a com-
prehensive national policy as a guide for all government of-
ficials and private individuals in the implementation of the
Convention of the Law of the Sea." (Priscilla R. Arias, "RP
Law of Sea Boundaries Need Legislative Delineation," Manila
Bulletin, Feb. 19, 1992, p. B-4).
With an estimated total maritime area of 652,000 square
nautical miles up to the 200-mile exclusive economic zone
(EEZ), the Philippines shall adopt the following national policy:
T H E FOURTH FUNDAMENTAL RIGHT: 269
1. To maintain and assert its title, ownership and

sovereignty over its national territory which comprises all
the Philippine archipelago, islands, and waters therein;
2. To define thru appropriate legislation itB
archipelagic baselines, including the Kalayaan Island Group
in accordance with the provisions of the Convention of the
Law of the Sea; and
3. To make sure that legislations are immediately
enacted on three areas: a definition of the territorial sea not
to exceed 24 nautical miles, b. the contiguous miles; and c.
the EEZ not to exceed 200 nautical miles drawn from the
archipelagic baselines.
According to Commodore Renato Feir of the Coast and Geo-
detic Survey Division of the National Mapping and Resource Infor-
mation Authority, around 24 nautical miles from the archipelagic
baselines of the Philippines form part of the jurisdiction of the
country for enforcement of customs, fiscal, immigration, and
sanitary laws and regulations.
Be it noted that the Philippines has further gained an esti-
mated 360,000 square nautical miles for its 200-mile EE2 and has
the sovereign right over this vast area for the exploration, exploi-
tation, conservation, and management of the natural resources
whether living or non-living, including State seabed and subsoil
thereof.
Under Presidential Decree No. 1596, the Philippines declares
sovereign power over a cluster of about 53 islands and islets in-
cluding the waters, seabed and subsoil contingent margin called
the Kalayaan Island Group (Spratly Islands). Incidentally, the
international Law of the Sea now being discussed by countries
staking their claims over the Spratlys (i.e., the Philippines, Malay-
sia, China, Taiwan, Vietnam, Cambodia, and Brunei) may yet
provide a harmonious relationship among said claimant-States and
their neighbors.
'9) RfshM, Jurisdiction and Duties of the Coastal State in
the Exclusive Economic Zone'
1) In the exclusive economic zone, the coastal State
has:
(a) sovereign rights for the purpose of exploring
and exploiting, conserving and managing the natural
resources, whether living or non-living, of the watera

superjacent to the sea-bed and of the sea-bed and its
subsoil, and with regard to other activities for the eco-
nomic exploitation and exploration of the zone, euch as
the production of energy from the water, currents and
winds;
(b) jurisdiction as provided f o r in the relevant
provisions of this Convention with regard to:
( i ) the establishment and use of artificial is-
lands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the
marine environment:
(c) other rights and duties provided for in this
Convention.
2) In exercising its rights and performing its duties
under this Convention in the exclusive economic zone, the
coastal State shall have due regard to the rights and duties
of other States and shall act in a manner compatible with the
provisions of this Convention.
3) The rights set out in this Article with respect to

the sea-bed and subsoil shall be exercised in accordance with
Part V I .
J^tf The Continental Shelf*

1) / T h e c j a f l n m t a l j h B t f o f a coastal State comprises
the sea-bed and subsoil of the submarine areas that extend
beyond Its^territorialsea throughout the natural-prolongation
of its land territory to the miter^Hj^ nfthp rfmtingnr.nl margin,
~or~to a_difltancp of 900 nautili rnjlefl fromjhe baselines from
w E c ^ J j ^ h r p f t H t h of tiift-tgrHtnnal apo iq rru»agi|rpH w h g r e
the outer edge of the continental margin does not extend up
to that distance.
2) The continental shelf of a coastal State shall not
extend beyond the limits provided for in paragraphs 4 to 6.
3) The continental margin comprises the submerged
prolongation of the land mass of the coastal State, and con-
sists of the sea-bed and subsoil of the shelf, the slope and the
THE FOURTH F U N D E M A N T A L RIGHT: 271
rise. It does not include the deep ocean floor with its oceanic
ridges or the Bubsoil thereof
4) (a) For the purposes of this Convention, the coastal

State Bhall establish the outer edge of the continental margin
wherever the margin extends beyond 200 nautical miles from
the baselines from which the breadth of the territorial sea is
measured, by either:
( i ) a line delineated in accordance with
paragraph 7 by reference to the outermost fixed
points at each of which the thickness of sedimen-
tary rocks is at least 1 per cent of the shortest
distance from such point to the foot of the conti-
nental slope; or
(ii) a line delineated in accordance with

paragraph 7 by reference to fixed points not more
than 60 nautical miles from the foot of the conti-
nental slope.
(b) In the absence of evidence to the contrary, the
foot of the continental slope shall be determined as the
point of maximum change in the gradient at its base.
5) The fixed points comprising the line of the outer
limits of the continental shelf on the seabed, drawn in accord-
ance with paragraph 4 (a) ( i ) and ( i i ) , either shall not exceed
350 nautical miles from the baseline from which the breadth
of the territorial sea is measured or shall not exceed 100
nautical miles from the 2,500 metre isobath, which is a line
connecting the depth of 2,500 metres.
6) Notwithstanding the provisions of paragraph 5, on

submarine ridges, the outer limit of the continental shelf shall
not exceed 350 nautical miles from the baselines from which
the breadth of the territorial sea is measured. This para-
graph does not apply to submarine elevations that are natural
components of the continental margin, such as its plateaux,
rises, caps, banks and spurs.
7) The coastal State shall delineate the outer limits of

its continental shelf, where that shelf extends beyond 200
nautical miles from the baselines from which the breadth of
the territorial sea is measured, by straight lines not exceed-
ing 60 nautical miles in length, connecting fixed points, de-
fined by co-ordinates of latitude and longitude.
8) Information on the limits of the continental shelf

beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured shall be submitted
by the coastal State to the Commission on the Limits of the
Continental Shelf set up under Annex II on the basis of
equitable geographical representation. The Commission shall
make recommendations to coastal Stabs on matters related
to the establishment of the outer limits of their continental
shelf. The limits of the shelf established by a coastal State on
the basis of these recommendations shall be final and binding.
9) The coastal State shall deposit with the Secretary-

General of the United Nations charts and relevant informa-
tion, including geodetic data, permanently describing the outer
limits of its continental shelf. The Secretary-General shall
give due publicity thereto.
10) The provisions of this Article are without prejudice
to the question of delimitation of the continental shelf be-
tween States with opposite or adjacent coasts.
North Sea Continental Shelf Cases

(Federal Republic of Germany/Denmark;
Federal Republic of Germany/Netherlands)
1969, International Court of Justice
Denmark and the Netherlands signed an agreement on
March 31,1966, delimiting the continental shelf between them.
As both States were bound by the Geneva Convention on the
Continental Shelf, 1956, they applied the principle laid down
in Article 6(2) of the convention. The dividing line between
their respective portions of the continental shelf was to be at
every point equidistant from the nearest points of the baselines
from which the territorial sea of each State was measured.
The Federal Republic of Germany rejected that method of
delimiting the continental shelf because it would give it an
unduly small portion or the continental shelf. Germany had
not ratified the convention. The three States reached agree-
ment only on a very limited section of the borderline in a
treaty between Germany and the Netherlands, December 1,
1964, and between Germany and Denmark, June 9, 1965.
Thereupon, on February 2, 1967, all three States signed
agreements to submit their differences to the International
Court of Justice and to delimit their respective portions of
THE FOURTH FUNDAMENTAL RIGHT 273
the continental shelf by an agreement in accordance with the

court's decision. They also asked the court to join their two
cases. Germany claimed that the equidistant rule had not
become customary law. Instead, it claimed, the governing
principle was that each coastal State was entitled "to a just
and equitable share" of the continental shelf The other two
States claimed that the principle of equidistance was appli-
cable and that the boundary should be determined "on the
basis of the exclusive rights of each Party over the continental
shelf adjacent to its coast on the principle that the boundary
is to leave to each Party every point of the continental shelf
which lies nearer to its coast than to the coast of the other
Party."
The question they submitted to the court was: "What
principles and rules of international law are applicable to the
delimitation as between the Parties of the areas of the con-
tinental shelf in the North Sea which appertain to each of
them beyond the partial boundary determined" by their exist-
ing conventions of 1964 and 1965? The court decided that the
equidistance method was not obligatory between the Parties
and that there was no other single method obligatory in all
circumstances. The principles and rules of international law
applicable in the case were (1) equity, taking account of all
relevant circumstances in such a way as to leave as much as
possible to each party those parts of the continental shelf
constituting a natural prolongation of its land, without en-
croachment on the same type of continental shelf of the other
parties; (2) if, in application of the principle under (1) there
resulted an overlap, the areas of overlap should be divided
between the parties in agreed proportions or, failing agree-
ment, equally, unless they agree upon joint jurisdiction or
joint exploitation. The court also gave instructions that cer-
tain factors, mainly of a geographic and geological nature,
ought to be taken into account during the negotiations.
In its arguments, the court first elaborated on the

geographic nature of the North Sea which, with one exception,
is nowhere deeper than 200 meters. It elaborated on the nature
of coastlines, and pointed out that the concave or recessing
coastline of a State lying between two others might be very
unfavorable to that State as giving it a very small portion of
the continental shelf. But the court left open at that point
whether this might represent a "special circumstance" in-
validating the equidistance principle. In taking issue with

the particular form of the German argument, the court estab-
lished that it was called upon to define the principles apply-
ing to the delimitation and not the apportionment of areas
already appertaining to States. It recalled that as a matter of
law, the rights of a State in respect to its continental shelf
exist ipso facto and ab initio by virtue of its sovereignty over
the land territory of which the continental shelf is an exten-
sion under the sea. There could, therefore, be no question for
the court allotting equitable shares of the continental shelf in
view of the fact that there was no undivided whole to be
shared out to begin with. As to the Danish-Dutch contention
of a universal rule making the equidistance-special circum-
stance principle obligatory, the court agreed that the method
was very practical and certain, but not a rule of law. Moreo-
ver, the principle could produce very unreasonable or un-
natural results. The plea, therefore, cannot be accepted that
because the principle is in itself equitable, its results cannot
be equitable. The court then found that, contrary to the con-
tention of Denmark and the Netherlands, Germany did not
by its behavior indicate adherence to Article 6 of the Con-
vention on the Continental Shelf, for "it is not lightly to be
presumed" that a State has somehow bound itself to a con-
vention which it easily could have signed and ratified but
had in fact not. The possibility still had to be examined
whether Germany was bound either by "what might be called
the natural law of the continental shelf, in the sense that the
equidistance principle is seen as a necessary expression in
the field of delimitation of the accepted doctrine of the exclu-
sive appurtenance of the continental shelf to the nearby coastal
State, and, therefore, as having an a priori character of so to
speak juristic inevitability"; or was bound because the equi-
distance principle had become a rule of positive, universal
law. After examining various aspects of the first part of that
question, especially pointing out in some detail that the cru-
cial element in the law of the continental shelf is the principle
of prolongation of the land territory of a State and not adja-
cency or proximity, and, therefore, not equidistance of a
particular line, the court concluded that equidistance is not
a necessary or inherent part of the law of the continental
shelf. The genesis and development of the equidistance method
was cited as further supporting the court's view. Indeed, the
court pointed out, there Has been consensus that no one single
THE FOURTH F U N D E H A N T A L Riqfffi: 275
method of delimitation waB likely to prove satisfactory in all

circumstances; and that agreement among the parties as the
way to determine a method to be used should be based on
equitable principles.
In addressing itself to the second part of the question,
whether the equidistance principle had become a part of
customary international law binding Germany, the court also
reached a negative conclusion. The principle entered the con-
vention as Article 6 not as a crystallization of an emergent or
preexisting customary rule but rather on an experimental
basis and perhaps in the hope of the convention parties that
it might become a legal norm. The court raised the question
whether the equidistance principle had become universal
customary rule after its introduction into the convention. The
first requirement of such a transformation would be the "fun-
damentally norm-creating character" of the principle. The
court found that in abstracto the principle lent itself to be-
coming such a norm, but that in the context in which it
appeared, this was not possible. Secondly, an insufficient
number of States had adopted the principle. Thirdly, very
little time had elapsed since the convention was concluded,
too short a time to form a custom. Upon the other hand, the
number of States applying the principle was too small to
make up for the brevity of time during which the principle
was embodied in the covenant. Fourthly, the States that did
adopt the equidistance principle did not do so because they
held the belief that they had to do so, yet such belief is an
essential element for a custom to become binding (opinio juris
sive necessitatis). And in many of these cases, the geographic
situation was not comparable to that in the present case.
Because the court found that there was no legal obligation to
adopt the equidistance principle, there was no need to inves-
tigate whether there were any "special circumstances" justi-
fying Germany not to apply it. The negative findings of the
court so far did not mean, however, that because the con-
vention was inapplicable and the equidistance principle was
not customary law, that there were no other norms which
should apply. The court then turned to a discussion of these
applicable rules. The first was that under the Charter of the
United NationB (Article 33) and on general legal grounds, the
parties must negotiate with a view to reaching agreement.
They had not done so because one side thought that the
application of the equidistance principle was prescribed by

law and the other Bide thought its non-application was pre-
scribed by law, making further negotiations superfluous. The
second rule was that principles and methods muBt be applied
to the delimitation safeguarding the fundamental rule of
equity. In the choice of these principles and methods, the
parties must take inLo consideration certain factors in order
to achieve equity. These factors, the court proceeded to enu-
merate. They concerned mainly the geography, geology, and
resources of the continental shelf.
tghts of the Coastal State Over

'the Continental Shelf
1) The coastal State exercises over the continental shelf
sovereign rights for the purpose of exploring it and exploiting its
natural resources.
2) The rights referred to in paragraph 1 are exclusive in
the sense that if the coastal State does not explore the continental
shelf or exploit its natural resources, no one may undertake these
activities without the express consent of the coastal State.
3) The rights of the coastal State over the continental shelf
do not depend on occupation, effective or optional, or on any ex-
press proclamation.
4) The natural resources referred to in this Part consist of
consist of the mineral and other non-living resources of the sea-
bed and subsoil together with living organism belonging to seden-
tary species, that is to say, organisms which, at the harvestable
stage, either are immobile or under the sea-bed or are unable to
move except in constant physical contact with the sea-bed or the
subsoil.
Case Concerning the Continental Shelf

(Libyan A r a b Jamahiriya/Malta)
1985 ICJ Rep. 13 (International Court of
Justice, Jan. 3, 1985)
Pursuant to a Special Agreement, the Socialist People's
Libyan Arab Jamahiriya (Libya) and the Republic of Malta
submitted a dispute to the International Court of Justice
concerning the delimitation of the continental shelf underly-
ing the Mediterranean Sea between the two Stales. The Court
T H E FOURTH FUNDAMENTAL RIGHT: 277
held: that, in general, the location of a line of delimitation

should take into account the distance between the two coasts
and the disparity in the lengths of the relevant sections of
those coasts, and that, here, an equitable result could be
obtained by adjusting toward Malta a line equidistant be-
tween the two States, thus taking into account Libya's great
coastal exposure and Malta's relatively small size.
Malta comprises a group of inhabited islands and an
uninhabited rock that together lie approximately 163 nauti-
cal miles (about 340 kilometers) north of Libya and about 43
nautical miles (80 kilometers) south of Sicily in the central
Mediterranean. Malta claimed that a line of delimitation
should be drawn at an equal distance between the States.
Libya argued that a "rift zone," or deep canyon, in the seabed
lying closer to Malta created the natural boundary between
two separate continental shelves and thus served as an ap-
propriate dividing line.
At the outset, the Court recognized that its jurisdiction

was limited by the terms of the Special Agreement, and it
further limited the scope of its decision to avoid conflicting
with competing claims of Italy, not a party to the dispute.
The Court found that the applicable law governing the case
was customary international law, which required that the
delimitation be effected in accordance with equitable princi-
ples, taking into consideration all relevant circumstances.
In applying such principles, the Court rejected Libya's
contention that the natural prolongation of the land under
the sea — including the physical properties of the land —
was the primary basis of title to the continental shelf. The
Court acknowledged that geological features might be rel-
evant for ascribing title to two separate continental shelves
that border States separated by more than 400 miles. Geo-
logical data are not relevant, however, in determining title to
seabeds within 200 nautical miles of a State's coast.
Instead, the Court adopted Malta's argument that the
concept of the exclusive economic zone as embodied in cus-
tomary international law required that natural prolongation
be defined in part by diatance from the shore, irrespective of
the physical nature of the intervening seabed. Accordingly, it
began the process of delimitation by tracing a provisional
median line between the two coasts. It next adjusted the
median line, out of equitable considerations, by eliminating

from the baseline formed by the Maltesec coast that portion
that extended to Malta's uninhabited rock.
Finally, the Court adjusted the line northward toward
Malta to account for (1) the fact that Malta is only a minor
feature of the central Mediterranean, and (2) the marked
disparity between the respective lengths of the Libyan and
Maltese coastlines. It did this by first determining that the
line could be no closer to Malta than could a similar line
delimiting the continental shelf rights between Libya and
Italy. The Court ruled that the final line must fall between
Libya and Malta — at about latitude 34" 12' north — and the
median line between Libya and Sicily — at about latitude 34°
36' north — a range of approximately 24 minutes of latitude.
Having satisfied itself that sufficient room existed between
the two coasts — some 195 minutes of latitude — to permit
some shifting of the median line about threatening the security
of either State or moving away from the approximate middle,
the Court held that adjusting the line three-quarters of the
distance toward the northernmost limit — i.e., to approxi-
mately 34° 30' north latitude — would achieve an equitable
result in all the circumstances.
In this decision, the Court continues the development of

a growing body of law concerned with each State's rights to
the potential wealth of its adjacent continental shelf. It also
demonstrates that the Convention of the Law of the Sea, is,
nonetheless, of major importance in international jurispru-
dence concerning the law of the sea.
(11) The High Seas
Application of the Provisions of this Part
The provisions of this Part apply to all parts of the sea that
are not included in the exclusive economic zone, in the territorial
sea or in the internal waters of a State, or in the archipelagic
waters of an archipelagic State. This article does not entail any
abridgement of the freedoms enjoyed by all States in the exclusive
economic zone in accordance with Article 58.
Freedom of the High Seas
1) The jpigh seas are open to all States, whether nnaitril or
land-locked. Freedom of the high seas is exercised under the
conditions laid down by this Convention and by other ruleB of

international law. It comprises, inter alia, both Tor coastal and land-
locked States:
(a* freedom of navigation;
(W freedom of overflight;
(cT freedom to lay submarine cables and pipelines,
subject to Part V I ;
(d> freedom to construct artificial islands and other in-
stallations permitted under international law, subject to Part
VI;
(e) freedom of fishing, subject to the condition laid down
in Section 2; and
(fK freedom of scientific research, subject to Parts VI
and XIII.
2) These freedoms shall be exercised by all States with due
regard for the interests of other States in their exercise of the
freedom of the high seas, and also with due regard for the rights
under this Convention with respect to activities in the Area.
Reservation of the High Seas

for Peaceful Purposes
The high seas shall be reserved for peaceful purposes. '
Invalidity of Claims of Sovereignty

Over the High Seas
No State may validly purport to subject any part of the high
seas to its sovereignty.
Right of Navigation
Every State, whether coastal or land-locked, has the right to
sail ships flying on the high seas.
Nationality of Ships
1) Every State shall fix the conditions for the grant of its
nationality to ships, for the registration of ships in its territory,
and for the right to fly its flag. Ships have the nationality of the
State whose flag they are entitled to fly. There must exist a genu-
ine link between the State and the ship.
2) Every State shall issue to ships to which it has granted
the right to fly its flag, documents to that effect.
Status of Ships
L) Ships shall sail under the flag of one State only and,
save in exceptional cases expressly provided for in international
treaties or in this Convention, shall be subject to its exclusive
jurisdiction on the high seas. A ship may not change its flag during
a voyage or while in a port of call, save in the case of a real
transfer of ownership or change of registry.
2) A ship which sails under the flags of two or more States,
using them according to convenience, may not claim any of the
nationalities in question with respect to any other State, and may
be assimilated to a ship without nationality.
Ships Flying the Flag of the United Nations,

Its Specialized Agencies and the
International Atomic Energy Agency
The preceding articles do not prejudice the question of ships
employed on the official services of the United Nations, its special-
ized agencies or the International Atomic Energy Agency, flying
the flag of the organization.
Duties of the Flag State

1) Every State shall effectively exercise its jurisdiction and
control in administrative, technical and social matters over ships
flying its flag.
2) In particular every State shall:
(a) maintain a register of ships containing the names
and particulars of ships flying its flag, except those which are
excluded from generally accepted international regulations
on account of their small size; and
(b) assume jurisdiction under its internal law over each
ship flying its flag and its master, officers and crew in respect
of administrative, technical and social matters concerning the
ship.
3) Every State shall take such measures for ships flying its
flag as are necessary to ensure safety at sea with regard, inter alia,
to: i
(a) the construction, equipment and seaworthiness of
ships;
(b) the manning of ships, labor conditions and the
training of crews, taking into account the applicable interna-
tional instruments; and
(c) the use of signals, the maintenance of communica-
tions and the prevention of collisions.
4) Such measures shall include those necessary to ensure:
(a) that each ship, before registration and thereafter
at appropriate intervals, is surveyed by a qualified surveyor
of ships, and has on board such charts, nautical publications
and navigations equipment and instruments as are appropri-
ate for the safe navigation of the ship;
(b) that each ship is in the charge of a master and offic-
ers who possess appropriate qualifications, in particular in sea-
manship, navigation, communications and marine engineering,
and that the crew is appropriate in qualification and numbers
for the type, size, machinery and equipment of the ship; and
(c) that the master, officers and, to the extent appro-
priate, the crew are fully conversant with and required to
observe the applicable international regulations concerning
the safety of life at sea, the prevention of collisions, the pre-
vention, reduction and control of marine pollution, and the
maintenance of communications by radio.
5) In taking the measures called for in paragraphs 3 and
4, each State is required to conform to generally accepted interna-
tional regulations, procedure and practices and to take any steps
which may be necessary to secure their observance.
6) A State which has clear grounds to believe that proper
jurisdiction and control with respect to a ship have not been exer-
cised, may report the facts to the flag State. Upon receiving such
a report, the flag State shall investigate the matter and, if appro-
priate, take any action necessary to remedy the situation.
7) Each State shall cause an inquiry to be held by or before
a suitably qualified person or persons into every marine casualty
or incident of navigation on the high seas involving a ship flying its

flag and causing loss of life or serious injury to nationals of another
Slate or serious damage to ships or installations of another State or
to the marine environment. The flag State and the other State shall
cooperate in the conduct of any inquiry held by that other State into
any such marine casualty or incident of navigation.
Immunity of Warships on the High Seas

Warships on the high seas have complete immunity from the
jurisdiction of any State other than the flag State.
Immunity of Ships Used Only on

Government Non-Commercial Service
Ships owned or operated by a State and used only an govern-
ment non-commercial service shall on the high seas, have complete
immunity from the jurisdiction of any State other than the flag State.
Penal Jurisdiction in Matters of Collision

or Any Other Incident of Navigation
1) In the event of a collision or any other incident of navi-
gation concerning a ship on the high seas, involving the penal or
disciplinary responsibility of the master or of any other person in
the service of the ship, no penal or disciplinary proceedings may
be instituted against such person except before the judicial or
administrative authorities either of the flag State or of the State
of which such person is a national.
2) In disciplinary matters, the State which has issued a
master's certificate or a certificate of competence or license shall
alone be competent, after due legal process, to pronounce the with-
drawal of such certificates, even if the holder is not a national of
the State which issued them.
3) No arrest or detention of the ship, even as a measure
or investigation, shall be ordered by any authorities other than
those of the flag State.
Duty to Render Assistance

1) Every State shall require the master of a ship flying its
flag, insofar as he can do so without serious danger to the ship,
the crew or the passengers:
(a) to render assistance to any person found at sea in

danger of being lost;
(b) to proceed with all possible speed to the rescue of
persons in distress, if informed of their need of assistance,
insofar as such action may reasonably be expected of him;
(c) after a collision, to render assistance to the other
ship, its crew and its passengers and, where possible, to inform
the other ship of the name of his own ship, its port of registry
and the nearest port at which it will call.
2) Every coastal State shall promote the establishment,
operation and maintenance of an adequate and effective search
and rescue service regarding Bafety on and over the sea and, where
circumstances so require, by way of mutual regional arrangements
cooperate with neighboring States for this purpose.
Prohibition of the Transport of Slaues

Every State shall take effective measures to prevent and
punish the transport of Blaves in ships authorized to fly its flag
and to prevent the unlawful u s e of its flag for that purpose. Any
slave taking refuge on board any ship, whatever its flag, shall ipso
facto be free.
•^Duty to Cooperate in the Repression of Piracy

All States shall cooperate to the fullest possible extent in the
repression of piracy on the high seas or in any other place outside
the jurisdiction of any State.
^Definition of Piracy
V^Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of
depredation, committed for jriv'ate ends by the crew or the pas-
sengers of a private ship or a private aircraft, and directed:
( i ) on the high seas, against another ship or aircraft,
or against persons or property on board Buch ship or aircraft;
and
(ii) against a ship, aircraft, persons or property in a
place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship

or of an aircraft with knowledge of facts making it a pirate ship or
aircrafts;
(c) any act of inciting or of intentionally facilitating an act
described in sub-paragraph (a) or (b).
Piracy by a Warship, Government Ship or Government

Aircraft Whose Crew Has Mutinied
The acts of piracy, as defined in Article 101, committed by a
warship, governmental ship or government aircraft whose crew
has mutinied and taken control of the ship or aircraft are assimi-
lated to acts committed by n private ship or aircraft.
Definition of a Private Skip or Aircraft

A ship or aircraft is considered a pirate ship or aircraft if it
is intended by the persons in dominant control to be used for the
purpose of committing one of the acts referred to in Article 101.
The same applies if the ship or aircraft has been used to commit
any such act, so long as it remains under the control of the persons
guilty of that act.
Retention or Loss of the Nationality of a

Private Ship or Aircraft
A ship or aircraft may retain its nationality although it has
become a pirate ship or aircraft. The retention or loss of national-
ity is determined by the law of the State from which such nation-
ality was derived.
Seizure of a Pirate Ship or Aircraft

On the high seas, or in any other place outside the jurisdic-
tion of any State, every State may seize a pirate ship or aircraft,
or a ship or aircraft taken by pirates and under the control of
pirates, and arrest the persons and seize the property on board.
The courts of the State which carried out the seizure may decide
upon the penalties to be imposed, and may also determine the
action to be taken with regard to the ships, aircraft or property,
subject to the rights of third parties acting in good faith.
Liability for Seizure Without Adequate Grounds

Where the seizure of a ship or aircraft on suspicion of piracy
has been effected without adequate grounds, the State making the
seizure shall be liable to the State the nationality of which is
possessed by the ship or aircraft for any loss or damage caused by
the seizure.
Ships and Aircraft Which are Entitled to

Seizure on Account of Piracy
A seizure on account of piracy may be carried out only by

warships or military aircraft, or other ships or aircraft clearly
marked and identifiable as being on government service and au-
thorized to that effect.
Illicit Traffic in Narcotic Drugs or

Psychotropic Substances
1) All States shall cooperate in the suppression of illicit

traffic in narcotic drugB and psychotropic substances engaged in
by ships on the high seas contrary to international conventions.
2) Any State which has reasonable grounds for believing
that a ship flying its flag is engaged in illicit traffic in narcotic
drugs or psychotropic substances may request the cooperation of
other States to suppress such traffic.
Authorized Broadcasting from the High Seas

1) All States shall cooperate in the suppression of unau-
thorized broadcasting from the high Beas.
2) For the purposes of this Convention, "unauthorized
broadcasting" means the transmission of sound radio or television
broadcasts from a ship or installation on the high seas intended
for reception by the general public contrary to international regu-
lations, but excluding the transmission of distress calls.
3) Any person engaged in unauthorized broadcasting may
be prosecuted before the court of:
(a) the flag State of the ship;
(b) the State of registry of the installation;
(c) the State of which the person is a national;
(d) any State where the transmissions can be received:
or
( e ) any State where authorized radio communication

is suffering interference.
4) On the high seas, a State having jurisdiction in accord-
ance with paragraph 3 may, in conformity with Article 110, arrest
any person or ship engaged in unauthorized broadcasting and seize
the broadcasting apparatus.
J f e f t j of Visit
( 1) Except where acts of interference derive from powers
conferred by treaty, a warship which encounters on the high seas
a foreign ship, other than a ship entitled to complete immunity in
accordance with Articles 95 and 96, is not justified in boarding it
unless there is reasonable ground for suspecting that:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting
and the flag State of the warship has jurisdiction under Ar-
ticle 109;
(d) the ship is without nationality; or
( e ) though flying a foreign flag or refusing to show its
flag, the ship is, in reality, of the same nationality as the
warship.
2) In the cases provided for in paragraph 1, the warship
may proceed to verify the ship's right to fly its flag. To this end,
it may send a boat under the command of an officer to the suspected
ship. If suspicion remains after the documents have been checked,
it may proceed to a further examination on board the ship, which
must be carried out with all possible considerations.
3) If the suspicions prove to be unfounded, and provided
that the ship boarded has not committed any act justifying them,
it shall be compensated for any loss or damage that may have
been sustained.
4) The provisions apply mutatis mutandis to military
aircraft.
5) These provisions also apply to any other duly authorized
ships or aircraft clearly marked and identifiable as being on gov-
ernment service.
• ^ 1 2 ) Right of Hot Pursuit
1) The hot pursuit of a foreign ship may be under-

taken when the competent authorities of the coastal State
have good reason to believe that the ship has violated the
laws and regulations of that State. Such pursuit must be
commenced when the foreign ship or one of its boats is within
the internal waters, the archipelagic waters, the territorial
sea or the contiguous zone of the pursuing State, and may
only be continued outside the territorial sea or the contiguous
zone if the pursuit has not been interrupted. It is not necessary
that, at the time when the foreign ship within the territorial
sea or the contiguous zone receives the order to stop, the ship
giving the order should likewise be within the territorial sea
or the contiguous zone, as defined in Article 33, the pursuit
may only be undertaken if there has been a violation of the
rights for the protection of which the zone was established.
2) The right of hot pursuit apply mutatis mutandis to

violations in the exclusive economic zone or on the continental
shelf, including safety zones around continental shelf instal-
lations, of the laws and regulations of the coastal State ap-
plicable in accordance with this Convention to the exclusive
economic zone or the continental shelf, including such safety
zones.
3) The right of hot pursuit ceases as soon as the ship
pursued enters the territorial sea of its own State or of a
third Stale.
4) Hot pursuit is not deemed to have begun unless
the pursuing ship has satisfied itself by such practicable means
as may be available that the ship pursued or one of its boats
or other craft working as a team and using the Bhip pursued
ae a mother ship is within the limits of the territorial sea, or,
as the case may be, within the contiguous zone or the exclusive
economic zone or above the continental after a visual or
auditory signal to stop has been given at a distance which
enables it to be Been or heard by the foreign ship.
5) The right of hot pursuit may be exercised only by

warships or military aircraft, or other ships or aircraft clearly
marked and identifiable as being on government service and
authorized to that effect.
6) Where hot pursuit is effected by an aircraft:
(a) the provisions of paragraphs 1 to 4 shall ap-

ply mutatis mutandis;
(b) the aircraft giving the order to stop must it-
selF actively pursue the ship until a ship or another
aircraft of the coastal State, summoned by the aircraft,
arrives to take over the pursuit, unless the aircraft is
itself able to arrest the ship. It does not suffice to justify
an arrest outside the territorial sea that the ship was
merely sighted by the aircraft as an offender or sus-
pected offender, if it was not both ordered to stop and
pursued by the aircraft itself or other aircraft or ships
which continue the pursuit without interruption.
NOTE: The "right of hot pursuit," generally confined to
the hot pursuit of ships, cannot be said to embrace the hot
pursuit of aircraft as well, if hot pursuit is understood as the
right to intercept foreign aircraft above the high seas.
While there have been occasional instances of hot pur-
suit of aircraft in the airspace above the high seas, such a
right has rarely been claimed officially. Usually, the use of
force has been justified by invoking the right of self-defense
against imminent attack or the sovereign rights of a State
within its own airspace.
7) The release of a ship arrested within the jurisdic-
tion of a State and escorted to a port of that State for the
purposes of an inquiry before the competent authorities may
not be claimed solely on the ground that the ship, in the
course of its voyage, was escorted across a portion of the
exclusive economic zone or the high seas, if the circumstances
rendered this necessary.
8) Where a ship has been stopped or arrested outside
the territorial sea in circumstances which do not justify the
exercise of the right of hot pursuit, it shall be compensated
for any loss or damage that may have been thereby sus-
tained.
(13) Entry into Force (Effectivity)

1) This Convention shall enter into force 12 months
after the date of deposit of the sixtieth instrument of ratifi-
cation or accession.
2) For each State ratifying or acceding to this Con-

vention after the deposit of the sixtieth instrument of rati-
fication or accession, the Convention shall enter into force on
the thirtieth day following the deposit of its instrument of
ratification or accession, subject to paragraph 1.
3) The Assembly of the Authority shall meet on the
date of entry into force of this Convention and shall elect the
Council of the Authority. The 11 rat Council shall be constituted
in a manner consistent with the purpose of Article 161 if the
provisions of that Article cannot be strictly applied.
4) The rules, regulations and procedures drafted by
the Preparatory Commission shall apply provisionally pending
their formal adoption by the Authority in accordance with
Part X I .
5) The Authority and its organs shall act in accord-
ance with resolution II of the Third United Nations Confer-
ence on the Law of the Sea relating to preparatory investment
and with decisions of the Preparatory Commission taken pur-
suant to that resolution.
(14) Amendment
1) After the expiry of a period of 10 years from the

date of entry into force of this Convention, a State Party may,
by written communication addressed to the Secretary-General
of the United Nations, propose specific amendments to this
Convention, other than those relating to activities in the Area,
and request the convening of a conference to consider such
proposed amendments. The Secretary-General shall circulate
such communication to all States Parties. If, within 12 months
from the date of the circulation of the communication, not
less than one half of the States Parties reply favorably to the
request, the Secretary-General shall convene the conference.
2) The decision-making procedure applicable at the
amendment conference shall be the same as that applicable
at the Third United Nations Conference on the Law of the
Sea unless otherwise decided by the conference. The confer-
ence should make every effort to reach agreement on any
amendments by way of consensus and there should be no
voting on them until all efforts at consensus have been ex-
hausted.
(15) Amendment by Simplified Procedure

1) A State Party may, by written communication ad-
dressed to the Secretary-GeneraI of the United Nations,
propose an amendment to this Convention, other than an
amendment relating to activities in the Area, to be adopted
by the simplified procedure set forth in thia article without
convening a conference. The Secretary-General shall circulate
the communication to all States Parties.
2) If, within a period of 12 months from the date of

the circulation of the communication, a State Party objects to
the proposed amendment or to the proposal for its adoption
by the simplified procedure, the amendment shall be con-
sidered rejected. The Secretary-Genera I shall immediately
notify all States Parties accordingly.
3) If, 12 months from the date of the circulation of the

communication, no State Party has objected to the proposed
amendment or to the proposal for its adoption by the simpli-
fied procedure, the proposed amendment shall be considered
adopted. The Secretary-General shall notify all States Par-
ties that the proposed amendment has been adopted.
(16) The International Tribunal of the Law of the Sea
General Provisions
1) The International Tribunal for the Law of the Sea
is constituted and shall function in accordance with the pro-
visions of this Convention and this Statute.
2) The seat of the Tribunal shall be in the Free and
Hanseatic City of Hamburg in the Federal Republic of Ger-
many [now known simply as Germany].
3) The Tribunal may sit and exercise its functions
elsewhere whenever it considers this desirable.
4) A reference of a dispute to the Tribunal shall be
governed by the provisions of Parts XI and XV.
Composition
1) The Tribunal shall be composed of a body of 21
independent members, elected from among persons enjoying
the highest reputation for fairness and integrity and of rec-
ognized competence in the field of the law of the Bea.
2) In the Tribunal as a whole, the representation of

the principal legal system of the world and equitable geo-
graphical distribution Bhall be assured.
Membership
1) No two members of the Tribunal may be nationals
of the same State. A person who for the purposes of member-
ship in the Tribunal could be regarded as a national of more
than one State shall be deemed to be a national of the one in
which he ordinarily exercises civil and political rightB.
2) There shall be no fewer than three members from
each geographical group as established by the General As-
sembly of the United Nations.
Nominations and Elections

1) Each State Party m a y nominate not more than two
persons having the qualifications prescribed in Article 2 of
this Annex. The members of the Tribunal shall be elected
from the list of persons thus nominated.
2) A t least three months before the date of the Sec-
retary-General of the United Nations in the case of the first
election a n d the Registrar of the Tribunal in the case of sub-
sequent elections shall address a written invitation to the
States Parties to submit their nominations for members of
the Tribunal within t w o months. He shall prepare a list in
alphabetical order of all the persons thus nominated, with an
indication of the States Parties which have nominated them,
and shall submit it to the States Parties before the seventh
d a y of the last month before the date of each election.
3) The first election shall be held within aix months of
the date of entry into force of this Convention.
4) The members of the Tribunal shall be elected by
secret ballot. Elections shall be held at a meeting of the States
Parties convened by the Secretary-General of the United
Nations in the case of the first election a n d by a procedure
agreed to by the States Parties in the case of subsequent
elections. Two thirds of the StateB PartieB shall constitute a
quorum at t h a t meeting. The persons elected to the Tribunal
shall be those nominees w h o obtain the largest number of
votes and a two-thirds majority of the States Parties present
INTERNATIONAL LAW A N D WORLD POLITICS
and voting, provided that such majority includes a majority

of the States Parties.
Term of Office
1) The members of the Tribunal shall be elected for
nine years and may be reelected; provided, however, that of
the members elected at the Bret election, the terms of seven
members shall expire at the end of three years and the
terms of seven more members shall expire at the end of six
years.
2) The members of the Tribunal whose terms are to
expire at the end of the abovementioned initial periods of
three and six years shall be chosen by lot to be drawn by the
Secretary-General of the United Nations immediately after
the first election.
3) The members of the Tribunal shall continue to dis-
charge their duties until their places have been filled. Though
replaced, they shall finish any proceedings which they may
have begun before the date of their replacement.
4) In the case of the resignation of a member of the
Tribunal, the letter of resignation shall be addressed to the
President of the Tribunal. The place becomes vacant upon
receipt of that letter.
THE OPEN SEAS AND THE PRINCIPLE OF

FREEDOM OF THE SEAS
The open&eaa>are those not included in the maritime zone of
any State; the sea by its very nature cannot be the property of any
11
State." Freedom of the seas fheans that no part of the sea as such
can be subjected to the sovereignty of any State and hence cannot
12
be incorporated into the territory of any State. Thus, Justice Story
has said:
"Upon the ocean then, in time of peace, all possess an
entire equality. It is the common highway of all, appropriated
"Hugo Grolius. Mare Liberum, "The Freedom of the Seaa." Chapter V.

Convention on the High Seaa — signed at Geneva. April 29, 1958; 52 A.J.I.L 842
(1958).
'*Hans Kelsen, Principles of International Law, pp. 224-225. See also Art.
2 of the Convention on the High Seas.
to the use of all; and no one can arrogate to himself a supe-

rior or exclusive prerogative there. Every ship sails there
with the unquestionable right of pursuing her own lawful
business without interruption; and whatever may be that
business, she is bound to pursue it in such a manner as not
to violate the rights of others. The general maxim in such
13
cases is sic utere tuo non alienum laedas."
• Be it noted, however, that the former testing grounds of open

sea — more than 400,000 sq. miles — for hydrogen bombs could
hardly be reconciled with the international law principle of free-
14
dom of the seas, unless the meaning of self-defense and rea-
,s
sonable measures therefor be unduly strained. It is fortunate that
today, with the Nuclear Test Ban Treaty, testing in the open sea
among other places, has been prohibited.
N.B.:
In the New Vision, an Uganda government-owned publica-
tion, concern has been made to this nuclear proliferation resulting
in its call to the UN for relief:
T h e proliferation and use of nuclear, tactical, and high-
technoloy weapons have wrought havoc in the last 40 or so
years. This is a deplorable State of affairs. The nuclear coun-
tries — The U.S., the [former] Soviet Union, Britain, France,
and China — should all come forward and push very strongly
to reduce the weapons of mass destruction.
But these members of the United Nations Security
Council should also reduce the manufacture of less-deadly
weapons. In the major conflicts that have taken place after
the Second World War, conventional weapons were used. The
proliferation of arms traffic encouraged by the big players
has made it very easy for small States to indulge in wars that
have brought untold hardships to their peoples.
It is time that the UN came in and monitored the reduc-

tion of these arsenals. To deter bellicose States, members of
the UN should Beriously consider having the UN act as the
"The Mariana Flora. II Wheaton 1.

N
Margo))§, The Hydrogen Bomb Teat and International Law. 64 Yale L.J.
629.
li
MacDougal. The Hydrogen Bomb Teal and International Law on the Sea.
49 A.J.I.L., p. 361.
only repository of the remaining weapons of masB destruc-

tion. The UN would then extend its role in peacekeeping and
arms-monitoring to all nations." (Cited in World Press Re-
view, Dec. 1991, p. 10).
Because the shadow of the BOMB still looms, can peace
be still achieved? President Rajendra K. Saboo of Rotary
International in his message "Who Has Seen the Face of
Peace?" [The Rotarian, February 1992, p. 5), said in part:
"When the world's great leaders invoke the rhetoric of peace,
they explain its complexities. To them, peace is something
difficult to achieve. [F]or peace begins with you — by reaching
out to your neighbor, by opening your heart, by bridging the
differences between people and communities.
"[SJervice must be the first step to peace, because peace

grows within the heart. Peace thrives with service and un-
derstanding, according dignity to our fellowmen. Peace is
nourished by truth and principles, and it is strengthened
when we overcome our differences to work together, finding
common ground for a noble cause.
"Not merely is service the essence, but the likeness of

peace. This is a vision we can share, based on trust and
affection. 'Look Beyond Yourself to see the true face of peace.
[Thus it is,] for a world at peace is not a dream, nor a wishful
fantasy. [This is realizable by]working in tandem with the
United Nations and its agencies [toward the culmination of]
the flowering of peace in joint initiatives for the health and
welfare of others [in] our special quest for peace.
Director Leonard Hausman of the Institute for Social

and Economic Policy in the Middle East, at Harvard Univer-
sity, in his "Peace Will Pay in a New Middle East" (The World
Paper, March 1992, p. 7), opined: "Peace may allow political
leaders to divert their energy to dealing with the tensions
generated by the process of economic reform [anent the]
growing consensus that no matter which way the political
winds blow, Israel's Occupied Territories, the West Bank and
Gaza, will achieve economic autonomy, and that a viable
Palestinian economy could increase trade between Arab
countries and Israel and thus help secure peace."
"The groundwork for transition to economic autonomy

WBB realized [when] Israeli leaders liberalized economic poli-
cies in the West Bank and Gaza. At the same time, Palestin-
ian leaders recognized that they needed to develop an economic
base for their political future. There is still no formal
agreement to coordinate the principal steps taken by Israeli
authorities, such as: licensing of existing and new firms;
allowing the operation of new and previously unlicensed credit
institutions; seeking a new chartered Palestinian bank; and
reducing Israel's barriers to Palestinian exports. But a small
group of U.S., Arab and Israeli economists and othere hope
that buried in those decisions may lie the seeds of an Israeli-
Jordan-Palestinian economic union similar to Jordanian
Crown Prince Hassan's dream of a Middle East Benelux.
"Until the leaders are free to do so, economic growth —
and with it the Peace dividend — could take a long time since
it may be contingent upon reduced tensions. And in even the
most optimistic scenarios, resolution of the Arab-Israeli conflict
would eliminate only one of the sources of tension in the
region. The Gulf War was a good example of the types of
intra-Arab tensions that can explode into regional conflict.''
And in another part of the world, the March 14, 1992 issue
of the Economist said:
"The end of Soviet communism was applauded every-
where except in China, Vietnam and Cuba. The replacement
of the Soviet Union by the Commonwealth of Independent
States has scared the world. A disintegrating nuclear-armed
superpower is a nightmare. Concern has focused on the ex-
Soviet Union's nuclear weapons — about 27,000 of them, from
artillerly shells to warheads on missiles. Military officials
claim that tactical nuclear weapons have been withdrawn
from all former Soviet republics, except Ukraine and
Belorussia. The remainder [is expected) to be back in Russia
by July [1992]."
Take the case of Russia, which has taken the place of the
former Soviet Union as a permanent member of the United Na-
tions Security Council. Said Time (March 16, 1992, pp. 11-15):
"Hundreds of millions, tens of billions of dollars could
all be spend vainly trying to prevent Russia from falling prey
to its own darkest tendencies. Now the cold war is over and
[the] communist system has been defeated, but that is no
guarantee that Russia will become a lot more liberal and a
lot more democractic than it haB ever been in its thousand

years of history. Which is where the West muat come in,
adding to the $5.2 billion aid package [U.S. President George]
has already offered Russia, the argument iB compelling that
the West must see beyond the moment and do more to assist
Russia thru its metamorphosis.
"[Because] more than food and financial aid needed, the
reformers must feel that the world backs their struggle for
democracy. For if Russia's struggle for democracy as well. It
is one of the century's great turning points, and if the U.S. is
to prove itself a superpower in more than military terms, it
must meet the challenge with the full commitment it de-
serves."
One reform plan, in fact, calls for the West to build faith in
the Russian ruble, Moscow wants the seven industrial powers to
put up $5 billion. This fund would, in theory, stabilize the cur-
rency by being available to suport it at a single, reasonable ex-
change rate. With a stable, convertible currency, foreign investors
would then come in, because they could calculate their profits and
losses accurately and, more important, take earnings out of the
country.
Another calls for the West to postpone or cancel much of

Russia's $61.5 billion debt to foreign banks and governments until
the reforms are working.
Now an associate member of the International Monetary Fund
(IMF), Russia, thru its president, Boris Yeltsin, is expected to
enforce a stiff regime of deficit reduction, tax collections, and credit
restrictions. Once in place, this austerity program will give Russia
the IMF seal of approval, allowing the country to approach other
governments and private leaders for new money in addition to
what it can draw from the Fund itself.
Of course, the attainment of world peace is easier said than
done, any agreement addressed toward the assurance of a just,
lasting and stable peace is as remote as an agreement on what
causes war and violence.
For that matter. Professor Daniel S. Papp, in his "Contempo-
rary International Relations: Frameworks for Understanding" (1988
ed.), has proposed prescriptions on how best to achieve peace,
namely: (1) predicting peace thru purchase of more arms; (2) ad-
vocating arms limitations and disarmaments measures; (3) main-
THE FOURTH FUNDAMENTAL RIGHT 297
Laining a balance of power thai should exist between potentially

hostile forces; (4) achieving world order thru a world State; (6)
realizing world peace through law; (6) prescribing religion in one
form or another as an antidote to the problem of war and violence;
(7) lessening man's tendency toward war and violence by way of
equitable distribution of wealth; and (8) particularizing a type of
social structure within States that would lessen man's willingness
to visit death and destruction on his fellowmen.
The search, nevertheless, for reliable methods to assure peace
continues. Peace and stability remain elusive goals. World order,
whatever its form, is no nearer reality now than it was at the
beginning. But as long as the search for peace continues, there is
reason for optimism that man may successfully meet the chal-
lenges raised by war, peace, and violence.
THE SUBSOIL AND THE AERIAL DOMAIN

The space below a State's territory belongs to the State: in
principle, this ownership may even extend to the center of the
earth. This rule is delimited only by the analogous space below the
territories of the neighboring States, and in the case of a littoral
16
or coastal State, by the Bpace below the open sea.
On the matter of aerial jurisdiction, there are at least four (4)
different points of view:
(1) The air space above the territory of the State is as com-
pletely subject to the State sovereignty as are the land and the
17
fluvial domains themselves (this theory is^followed by most Stales.)
(2) Free aerial navigation, subject to security measures: the
air, like the high and open seas, is open to free navigation by all
aircraft, domestic and foreign, subject to the right of the states to
provide for the security of the territory.
(3) Two zone theory: there is a lower zone of territorial air
18
space, and a higher unlimited zone of free air space.
(4) Sovereignty Bubject to an easement: while the sover-
eignty over the air space remains with the subjacent State, it is
"See Kelsen, op. cit., p. 225.

"See Oppenheim, op. cit., p. 475.
"Ibid., pp. 469-470.
subject to the servitude or easement of innocent passage for for-

9
eign civil aircraft.*
Present Rules on International Aviation: Certain rules have
already been formulated with respect to international aviation,
which incidentally consists of two kinds — (a) regular airline serv-
ices with scheduled landings and departures; and (b) all other
forms of international aviation.
With reference to regular airline services, it may be said that
they are possible today only because of bilateral agreements or
conventions on the matter.
Upon the other hand, in the case of all other forms of in-
ternational aviation, accord has been reached on the following
points:
(1) Without prior permission but subject to the rights of the
subjacent State to require landing, flight in transit (i.e., without
landing or stopping) may be made.
(2) Without prior permission of the subjacent State, stops
may be made for non-traffic purposes (e.g., refuelling, repair).
(3) Every State has the right of cabotage (the monopolistic
right to transport goodB and persons between points in the same
State) in the matter of aerial navigation. (Note: Traditionally,
cabotage had been confined to coastwise or shipping matters).
(4) Aircraft carry the nationality of the State of registration
(registration cannot be effected in more than one State).
These principles have been agreed upon in the 1944 Con-
vention of International Civil Aviation in Chicago, USA. The first
two are often"referred to as the "Two Freedoms Agreement.'' Of
the so-called "Five Air Freedoms," only these two met with com-
mon consent. The three "freedoms" which remain disputed are the
following: *
(1) the freedom to unload in a foreign State traffic coming
from the State of registration of the aircraft;
(2) the freedom to load in a foreign State traffic destined
for the State of registration;
"Lawrence. Principles of International Law. pp. 143-144.

THE FOURTH FUNDBMANTAL RIGHT:
(3) the freedom to load and unload in the foreign State traffic
30
to and from a third State.
Note: While the aforementioned principles have not changed
for almost half a century, airlines, particularly, Asian, are "being
buffeted by turbulence: worldwide recession, fare wars, and cut-
backs in corporate travel. Many airlines are forecasting a rough
landing. (See Michael Westlake, "Asian Airlines, Rough Skies
Ahead." lAviation-Fasten Seat Belts], Far Eastern Economic
Review, Aug. 26, 1993, pp. 44-50).
THE RIGHT OF JURISDICTION

As understood in the Law of Nations, the right of jurisdiction
accorded a sovereign State consists of:
*^tl) its territorial jurisdiction (which is its authority over
persons and properties within the territorial boundaries); and
,(21 its personal jurisdiction (which in this sense is its au-
21
thority over its nationals who are now in foreign territory).
Under international law, a State may exercise jurisdiction
under such principles as the protective principle, the universality
principle, and the passive personality principle.
The Draft Convention on Jurisdiction drawn up thru the
Harvard Research in International Law (29 Am. J.l.L. Supplement
PT. II [1935]), defined "protective principle" as follows: "A State
may exercise jurisdiction with respect to certain types of acts
wherever, and by whomever committed where the conduct sub-
stantially affects certain vital State interests, such as security, its
property, or the integrity of its governmental processes."
Under customary international law, the "universality prin-
ciple" is applicable to universally condemned crimes like piracy. It
iB believed that future developments of the rule of law applicable
to outer space and celestial bodies Bhould work out the basis under
which the universality principle could be extended to these areas.
With regard to the "passive personality principle," the Harvard
Research in International Law has defined it as when "a State
" S e e Brierly, The Law of Nations, pp. 185-186.

" S M Feowick. International Law, p. 176; Wilson, Handbook of Interr
lional Law, p. 88.
may exercise jurisdiction with respect to any act committed out-

side its territory by a foreigner which substantially affects the
person or property of a citizen." Nevertheless, the Lotus case
(Lotus, PCIJ, Ser. A, 10 [1927]) has rejected the validity or the
"passive personality principle."
DETERMINING THE NATIONALITY OF BUSINESS ENTERPRISES

In the book, Law Among Nations: An Introduction to Public
International Law (1992), author Gerhard von Glahn, in his
characteristic language, briefly discussed how the nationality of
business enterprises like corporations or partnerships is deter-
mined, thus:
"Corporations enjoy the status of legal or juristic per-

sons and, therefore, can be said to be endowed with nationality
similar to the manner in which a natural (human) person
possesses nationality. The traditional Anglo-American deter-
minant of a corporation's nationality was domicile or more
specifically, the place of incorporation. In the case of unincor-
porated associations, nationality was determined on the basis
of the State in which they were constituted or in which their
governing body normally met or was located. Among most
European States, upon the other hand, for a long time the
concept was preferred that a corporation's nationality was
determined either by the location of its home office (siege
social) or a minority vein — by the place in which the prin-
cipal business operations were carried on.
"In the case of business enterprises without legal per-

sonality, such as partnerships, no nationality as such can be
assigned to the firm. The interests involved are those of the
partners, and the nationality of the latter determines
which State is entitled to represent the firm's interests. It
does not matter, for purposes of determining the 'nationality'
in question, where the operating establishment of the part-
nership is located: the nationality of the partners is the de-
cisive factor."
RESTRICTIONS ON TERRITORIAL JURISDICTION

While the sovereignty of a State within its territorial confines
iB generally absolute and unlimited (subject only to the demands
of the natural moral law), still there are certain recognized re-
sthctiooB thereon — limitations imposed by the international le-

gal order, of which the State is necessarily an important part.
Among these restrictions are the following:
(1) the State of being a condominium;
(2) the existence of spheres of influence;
(3) the State of being a colonial dependency or a colonial
protectorate or a trust territory;
(4) the existence of easements and servitudes;
(5) the principle of exterritoriality;
(6) the principle of extra-territoriality;
(7) the rules on the jurisdiction over crimes committed on
board foreign ships inside territorial waters; and
(8) the presence of a leasehold or the existence of treaty
stipu lations.
A condorruriium (literally, a co-ownership) is a territory un-

der the joint authority or sovereignty of two or more States; it is
also used to signify the actual exercise of such joint rule." This may
rise by virtue of an agreement between the governing powers, the
State subjected to such joint jurisdiction may or may not be a
party to said agreement.
Examples of condominia are the following:
(1) The Condominium over Samoa by the United States,
Great Britain, and Germany; and
(2) The condominium over Sudan by England and Egypt.
Exercise of authority may be effectuated thru a single representa-
tive jointly agreed upon.
SPHERES OF INFLUENCE
A sphere of influence is a country or region, usually backward
politically or economically underdeveloped, in which a State or States
claim and are allowed exclusive rights to colonize, exploit natural and
" S e e Hans Kelsen. Principles of International Law. p. 218.

economic resources, or eventually annex.** The State or States so

asserting their rights insist on preventing other States from taking
over the territory, although they themselves (the former) do not as-
sume the responsibility of formally governing the region. The right is
8
often stipulated in treaties with States likely to be prejudiced. * It has
been said before that Communist Cuba is eyeing Central American
States (such as Nicaragua, El Salvador, Jamaica, Guatemala Guyana)
25
as possible modern centers of influence.
COLONIAL DEPENDENCIES, COLONIAL PROTECTORATES,

AND TRUST TERRITORIES
A colonial dependency is a region occupied by settlers from a
"mother State"; a colonial protectorate is a backward region under
the protection of a State. (Note: This is not the "protectorate" dis-
cussed in the preceding chapters; a "protectorate" is a dependent
State, while a "colonial protectorate" is not a State.) A trust ter-
ritory has been previously denned. It is clear that whatever "sov-
ereignty" may be exercised by these regions cannot in any sense
be regarded as "absolute."
EASEMENTS AMR tFRVITUDFfi

As understood in the international legal order, easements or
servitudes have the same meaning they possess in the field of civil
or national law. Hence Oppenheim says that they are exceptional
restrictions, generally perpetual in nature, made by treaty or re-
sulting from tacit agreement, on the territorial supremacy of a
State, by which a part or the whole or its territory is, in a limited
6
way, made to serve a certain purpose or interest of another State.*
As distinguished, however, from civil law concepts, the easements
or servitudes in Public International Law are generally considered
merely as rights in personam, not rights in rem.
Classification of international servitudes:

(1) From the standpoint of the source of the right, interna-
tional servitudes may be:
a
Funk and Wagnall's Dictionary.
**See Brierly, The Law of Nations, pp. 151-152.
"See Bulletin Today, April 23, 1980.
"See Oppenheim, op. eit., 429-431.
(a) natural servitudes — if imposed either by the moral

law (e.g., easement of involuntary entrance or of arrival un-
der stress) or by international customs (e.g., easement of in-
nocent passage or the free passage of foreign ships, whether
merchant or public, thru the maritime belt of a State's terri-
77
tory). (Note:. In the Convention on the Territorial Sea and
the Contiguous Zone, 1958 Geneva Conference on the Laws
of the Sea, the right of innocent passage of merchant Bhips was
recognized).
(b) State servitudes — ifimpoBed by a treaty (e.g., the
passage of troops of another State).
(2) From the standpoint of the nature of the right, inter-
national easements may be:
(a) positive servitudes — if the servient State is re-
quired to allow the performance of certain acts on its terri-
tory (e.g., fishing rights); and
(b) negative servitudes — if the servient State i6 re-
quired to abstain from certain acts which it ordinarily could
properly do (e.g., the duty not to construct fortifications in
28
certain designated places).
The Easement of Involuntary Entrance or Arrival Under Stress:

Whenever there is a. grave moral or physical necessity therefor,
a foreign ship is allowed to enter the ports of a State, even without
prior permission, in order to make the proper repairs. This is the
29
easement of involuntary entrance or of arrival under stress. Fines
for the entrance should not be imposed; neither are the goods on
30
the vessel made to pay duties. Of course, should the vessel in
distress enter into contracts in the port, it has to be responsible for
its obligation thereon. Important crimes aboard the ship may also
31
come under the jurisdiction of the territory.
The Easement of Innocent Passage:

The easement of innocent passage allows a foreign merchant
or public vessel to pass thru the maritime zone of the littoral State
provided:
" S e e Corfu Channel Case, 1949, I.C.J. Report*, p. 4.

" S e e Oppenheim, op cit., p. 434.
"See II Moore, A Digest of International Law, pp. 340-341.
" 3 Wheat 59.
"See People v. Wong Cheng, 49 Phil. 729.
(1) that the passage is really "innocent," i.e., there must be

no ulterior motive Tor the paeeage, and all the regulations of the
State concerned muBt have been complied With; and
(2) that there ia only a "passage" (a passing thru, with
generally no loading or unloading of any person or goods).
In the Convention on the Territorial Sea and the Contiguous
32
Zone, all ships of all States, whether coastal or not, shall enjoy
the right of innocent passage thru the territorial sea. Passage may
include stopping or anchoring, but only insofar as the same are
incidental to ordinary navigation or are rendered necessary by
force majeure or by distress. With respect to submarines, the
Convention requires them to navigate on the surface and to show
their flag. May the easement of innocent passage be suspended?
Generally, yes. Thus, Art. 16 of the Convention specifically pro-
vides that the coastal State may without discrimination amongst
foreign ships, suspend temporarily in specified areas of its terri-
torial sea, the innocent passage of foreign ships, if such suspension
is essential for the protection of its security. Such suspension shall
take effect only after having been duly published. However, there
shall be no such suspension in straits which are used for inter-
national navigation.
The Corfu Channel Case, International

Court of Justice Judgment of M a r c h 25, 1949,
April 9, 1949, December 15, 1949.
FACTS: While passing thru the Corfu Channel in Alba-
nian territorial waters, some British warships suffered
damage, and the members of the crews were killed. The in-
juries were caused by mine explosions in the Channel. While
Albania herself did not lay the mines, circumstantial evidence
showed that the mines could not have been laid without the
knowledge of the Albanian Government. After the accident,
Britain sent several warships into Albanian waters to carry
out mine-sweeping operations. This was done without the
consent of Albania. The case was brought to the attention of
the United Nations, and as a consequence of the recommen-
dation of the Security Council, the matter was referred to the
International Court of Justice. Britain sought damages for
^'Signed at Geneva, April 29, 1958.

the injuries and deaths; upon the other hand, Albania, in a

counterclaim, accused England of having violated Albanian
sovereignty by the entrance of warship, prior to the explosions,
into Albanian waters, and by the subsequent unauthorized
mine-sweeping operations.
HELD:
(a) By the judgment or March 25, 1949, the Court
upheld its jurisdiction (which incidentally had previously been
challenged by Albania).
(b) By the judgment or April 9, 1949, the Court de-
crees that Albania was liable Tor the explosions and Tor the
resultant damages, in view of the fact that the mines could
not have been laid without the knowledge or Albania; hence
Albania could be held as ultimately responsible. By the same
judgment, the Court decided that the original entrance of
British warship was a case of "innocent passage" because of
the generally admitted principle that States are entitled, in
time of peace, to send even their warships thru international
straits without first obtaining the leave of the coastal State.
The Court also said that "unless otherwise prescribed in an
international convention, there is no right for a coastal State
to prohibit such passage thru straits in time of peace." Upon
the other hand, the mine-clearance operations of Nov. 12 and
13, 1946 were considered an inadmissible intervention in the
affairs of Albania, and therefore, a violation of Albanian
sovereignty.
(c) In the third and last judgment of December 15,
1949, the Court declared that Albania should pay the United
Kingdom a total Bum of 644,000 pounds sterling for the
damage caused to the ship and as compensation for the deaths
or personal injuries suffered by the members of the crew.
(NOTE: Albania has NOT yet paid this amount).
Portuguese Enchlaves Case

Portugal v. India
(International Court of Justice)
FACTS: To go to the Portuguese Enclaves in India,

Portugal wanted to obtain a right of passage over Indian
territory. India, however, did not want to permit this passage.
Portugal sued India in the International Court of Justice

alleging that India's prevention of the right of passage formed
part of a campaign which India had been carrying on since
1950 "for the annexation of Portuguese territories." The
Portuguese authorities, thus, wanted the Court to rule that
India should put an immediate end to the tense situation by
permitting the Portuguese right of passage.
HELD:
(a) Portugal has a right of passage over the interven-
ing Indian territory "to the extent necessary for the exercise
of Portuguese sovereignty over the Enclaves and subject to
the regulation and control of India, in respect of private
persons, civil officials and goods in general."
(b) However, Portugal does "not have such a right of
passage in respect of armed forces, and ammunition."
( N O T E : Sometime later, India finally seized Portuguese-
held territories in India, stating that its act was not aggres-
sion, but merely a recovering of "its own territory").
THE PRINCIPLE OF EXTERRITORIALITY •

Exterritoriality is the fiction in international law by virtue of
which certain foreign persons and their things are exempted from
the jurisdiction of a State on the theory that they form an extension
of the .territorôX_0ieiJ^-OiKri_State. Traditionally, mplomatic
immunities have been premisedorTThis "exterritoriality" but in
recent years the thought has grown that if ever diplomatic
immunities continue to exist, it is because they are given as con-
cessions of the national law of a State to assure full freedom in
33
the exercise of diplomatic functions.
THE PRINCIPLE OF EXTRATERRITORIALITY

\/ExtroJemtoriaiity fs the exemption of foreign persons from the
laws and jurisdiction of the State in which they presently reside,
an exemption which can exist only by virtue of a treaty/stipulation
to this effect. ^
3
See Fen wick, International Law, p. 648.
THE FOURTH F U N D E M A N T A L R I G H T 307
/ While extra territoriality deals with the exemption of persons

only, exterritoriality exempts persons and things; ejctra-territorv
ality can exist only because of a treaty, while exterritoriality is
/ generally premised on an international custom. * 3
A provision on ^Mii*l*irritoi-ifi|fty* allows the foreigners to be

governed by their own diplomatic or consular tribunals. The privi-
lege had its historical origin in the Middle Ages. In recent years,
China and Japan have been notable examples of countries with
whom stronger StateB have had "extraterritorial rights." Recall
that in 1869, Japan did away with the provision; China did the
same much, much later.
Allied Bank International v. Banco Credito

Agricola de Cartago
757 F. 2d 516 ( U . S . Court of Appeals,
2d Cir., Mar. 18, 1985
Acts of foreign governments purporting to have an ex-
traterritorial effect should be recognized by U.S. courts only
if they are consistent with the law and policy of the United
States. Since the Costa Rican Government's unilateral at-
tempt to repudiate private commercial obligations was in-
consistent with U.S. law and policy, the court refused to
recognized the extraterritorial effect of the Costa Rican gov-
ernment's decrees.
In several treaties, whether or not extraterritorial rights have

been granted, there usually is a mrtst-fayorPiLnatinn (MFNXcLiuse
— a clause which in effect provides that a State pledges to give to
the other State-signatory whatever privileges or concessions the
first State may give to third States.! Thus, if we (in the Philip-
pines) have such a clause in a treaty with Japan, whatever rights
we may accord to other countries we should also give to Japan. If
the clause is reciprocal, Japan would also give us the same
treatment. If all the StateB with which the Philippines will have
treaties will have such a clause, the resultant consequence will be
that all States will be equally favored; hence, none will be the
"Ibid.
"most-favored." Clauses on this matter may either be conditional

(subject to certain other stipulations) or unconditional; they may
also be unilateral or reciprocal.
In early-1993, the U.S. almost cancelled an M F N status it
earlier accorded to China owing to the la Iter's notorious human
rights record.
On May 17, 1993, the United States said it hoped to restore
momentum in its ties with China and would consider the view of
the U.S. business community in any move to attach conditions on
trade privileges. Winston Lord, U.S. Assistant Secretary of State
Tor East Asian and Pacific Affairs, said Washington was, however,
adamant, it wanted to see more progress in China's human rights
record, and curtailment of alleged arms sales. "There has been
some progress but just not enough progress," Lord said. "We do
not want to isolate China. It is an important country," Lord said
at the end of two days of talks in the Bruneian capital on security
and political issues with officials of the Association of Southeast
Asian Nations ( A S E A N ) . Washington offers most-favored-nation
( M F N ) status to most of its trading partners, making them eligible
for the lowest available tariffs on their exports. China's inclusion
must be renewed each June by the U.S. president. (Philippine Star,
the U.S. Wants to See More Progress on China Human Rights,"
May 18, 1993, p. 12).
Evidence of a widening trade gap between the U.S. and China
has emerged at a time when Beijing seeks a revewal of its M F N .
The Commerce Department reported that the U.S. trade deficit
took an alarming 29% j u m p in March 1993 — partly because of
the gap between what China sells to America and what America
exports to China. There was also new evidence that China had
already achieved economical superpower status, perhaps even re-
placing Germany as the third largest economy behind the U.S. and
Japan. The Pacific Economic Cooperation Council, a private group,
agreed, saying China was running neck and neck with Germany,
and doing much better than earlier estimates have suggested. New
York Federal Reserve President Gerald Corrigan, speaking of the
Foreign Policy Association, said that "unless something very un-
fortunate... happens in the near future, China in economic and
financial terms is going to be a very very major player." Part of
this powerful growth, which stands in stark contrast to economic
activity among the traditional economic giants of the Group of
Seven (G-7) industrial countries, reflects vast and unbalanced trade
with the U.S., analysts said.
The Commerce Department, in reporting U.S. trade problems

for March 1993, said the gap with China widened to $1.46 billion
from $1.17 billion in the previous month. For the first three months
of 1993, the deficit with China is running at $4.2 billion compared
with $3.4 billion in the same period a year earlier. The deficit was
$18.3 billion in 1992, a substantial jump from the $12.7 billion in
1991. Surging imports from Japan helped drive the overall U.S.
trade gap to $10.21 billion in March, the highest level in nearly
four years. The deficit with Japan jumped to $5.26 billion from
$4.13 billion, accounting for 52% of the total gap. Legislation has
been introduced and is under discussion with the Clinton admin-
istration that would allow M F N status to go into effect but would
require China to meet certain requirements or face substantially
higher tariffs. These include progress on human rights, prevention
of exports of good6 made by forced labor, ending unfair trade prac-
tices and adhering to guidelines on transfer of missiles. [Business
Star, "U.S. Considers M F N As China Becomes Trade Superpower,"
May 25, 1993, p. 9).
On June 4, 1993, President Bill Clinton decided to extend

MFN status to China. While the fight over renewing China's low-
tariff trade status has finished — for 1993, now American com-
panies with interests in China can start worrying about whether
President Clinton will renew it this year (1994).
Alone among the major U.S. trading partners, China's "most-
favored-nation," or M F N , trade status must be approved every
year. Congress has tried to use that Bince the Tiananmen Square
repression in 1989 to tie human rights demands to China's $25
billion-a-year trade with the United States. The annual uncertainty
that trade conditions could be imposed — and that Beijing might
retaliate with a trade war — presents one more problem in trying
to do business with one of the world's biggest and most promising
economies. "Anyone who's contemplating direct investment in China
has to be worried," said Peter Mangione, president of the Footwear
Distributors and Retailers of America, whose members rely on
supplies of ChineBe-made shoes. That uncertainty has not disap-
peared.
Unlike President Bush, who routinely vetoed efforts by
Congress to tie MFN to human rights gains, Clinton promised to
pressure Beijing. And wheo he formally gave China a one-year
extension of M F N , he said, it would be the last time unless China
improves its human rights record. "I don't want to isolate China.
I want to do what's good for the Chinese people. But I think stand-
ing up for American values, and values in China, is the w a y to go,"
the U.S. president said.
China's Foreign Ministry, in a s t a t e m e n t issued in Beijing, at-
tacked Clinton's move as a violation of trade agreements and inter-
ference in its internal affairs. "If the U.S. side should insist on its
way, it can only seriously impair Sino-U.S. relations and their eco-
nomic and trade cooperation," said the statement carried by the of-
ficial Xinhua newB agency. U.S. Congres has shown it wants to go
further. A bill submitted with support from House and Senate leaders
would have given China low tariffs but set strict conditions before the
M F N could be renewed in 1994. Among other thingB, Beijing would
have to accept human rights monitors, end its repression in the
annexed Himalayan kingdom of Tibet, and stop selling missiles abroad.
The bill's sponsor. Rep. Nancy Pelosi, the Chinese government's
sternest critic in Congress, Bays Beijing would not respond to anything
except the threat of trade sanctions. Business leadere say that could
provoke a trade war, cost thousands of American jobs and hurt Hong
Kong, the thriving capitalist enclave that re-exports many Chinese
goods to America. "If you impose sanctions that you know they can't
or won't meet, what are you going to do next year?," said Roger
Sullivan, a business consultant and former head of the U.S.-China
Business Council in Washington. He said it is equivalent to "postponing
the date you revoke M F N . " If Beijing decided to retaliate, Sullivan
said, "People might be surprised it's a lot more painful than they
thought it w a s . "
China has quietly risen to the top ranks of U.S.-trade part-

ners in t h e past five years. In 1992, Americans bought $25 billion
worth of goods "Made in China" — everything from tennis rackets
to television sets. More important to Americans, China bought
$7.5 billion in U.S. goods — mostly jetliners, machine tools and
other high-value manufactured items. Industry groups say that
paid for 150,000 American factory jobs. (See Manila Bulletin, " M F N
Debate Centers on 'Made in China,' " June 2, 1993, p. B-8).
Just a little over two month after, China was at it again. And
this time, the Clinton administration took its first step to punish
Ch ina for peddling dangerous weapons — without immediately
jeopardizing Ameican business plans to cash in on the Asian gi-
ant's economic figure.
In announcing limited sanctions in response to China's sale

of missile technology to Pakistan, the U.S. State Department al-
THE FOURTH FUNDEMANTAL RIGHT an
layed the American business community's worst fears, but also

stirred worries that booming U.S.-Chinese business dealingB may
occasionally be interrupted or even derailed by Washington's vari-
ous quarrels with Beijing. U.S. officials stressed that the sanctions,
which will cost U.S. companies about $500 million annually in lost
sales, are required under U.S. law and are the minimum that the
administration could have imposed.
.The sanctions package mostly covers U.S.-made equipment
used in satellites that the U.S. either sells or sends to China for
launches. Included are rocket systems and rocket sub systems,
including such things as reentry vehicles and systems related to
warheads. Other items on the list include flight control s y s t e m s ,
avionics equipment, launch-support equipment, software and
certain computres. The sanctions would only block new sales; items
for which U.S. companies have already received export licenses
may be shipped. Although both China and Pakistan are being
penalized, nearly all the sale6 are to China, U.S. officials said.
Some business leaders acknowledged that the penalties were
the minimum the U.S. could impose once it was determined that
the illegal transfer had occurred. Don Anderson, president of the
U.S.-China Business Council and a former China specialist in the
State Department, called the decision "unfortunate" b u t said "it's
not going to derail" economic relations between the t w o countries.
But Mr. Anderson and others worry that their competitors in other
nations may rush to fill the void created by the U.S. sanctions.
Because this action is required by U.S. law and not by terms of
an international agreement, America's allies and business com-
petitors — such as Britain, France and Japan — have no legal
obligation to impose Bimilar restrictions on their companies, he
noted.
Of course, China, which is a major seller of weapons, could be
in for more penalties from the Clinton administration, which has
made blocking sales of dangerous weapons a major foreign policy
priority. For one, U.S. officials suspect that a ship that was headed
for Iran contained chemical weapons components; Beijing, for its
part, has agreed to an inspection of the vessel at a port in Saudi
Arabia. And Gary Milhollin, director of the Wisconsin Project on
Nuclear Arms Control, says that China also may be violating or
skirting U.S. law by supplying missile technology and manufac-
turing capability to Iran and Syria, two nations that the U.S. hats
36 supporters of international terrorism.
The U.S. aerospace industry, which these days views China

as a crucial customer, is trembling over the potential impact of the
sanctions and their fallout. Industry officials are particularly fret-
ful that Beijing will retaliate by boycotting a slew of items that are
not on the State Department's hit list. If that happens, "welll
have fired a few Americans to show that we're indignant," said
Joel Johnson, a vice president with the Aerospace Industries As-
sociation. Other high-tech concerns are worried as well. Edward
Schmidt, president and chief executive of Alpha Solarco Inc., which
derives 75% of its total sales from exports to China, has grave
concerns about the sanctions. His worry: how China will retaliate.
Alpha Solarco, based in Cincinnati, makes solar energy manufac-
turing equipment. An Alpha Solarco-Chinese joint venture is
building a plant in China to make huge solar energy systems for
use by Chinese utilities as an alternative to coal. "The problem is,
what happens when the Chinese reciprocate? And they will. They're
going to come back and say: 'We're going to impose a duty on your
American goods.' These things are never friendly," Mr. Schmidt
says.
Many companies expressed cautious relief that the announced

sanctions were limited. Hughes Aircraft Co. has launched a major
reorganization of international divisions, mainly to accelerate its
China expansion. The General Motors Corp. unit is hurriedly ex-
amining their impact on its efforts to sell satellites and related
wireless telephone systems (an area of major potential technology
transfer), and myriad other products that could be seen as having
dual defense and commercial applications. "Obviously, Hughes
has a great deal of commercial expectation in China and
U.S. government actions are of concern to us," says Gareth C.C.
Chang, corporate senior vice president of marketing for Hughes
Aircraft.
U.S. exports to China totaled $7.3 billion in 1992, a 19%

increase over the previous year, according to the U.S. Commerce
Department. But China would have far more to lose if it gets into
a tit-for-tat with America over the sanctions. China's sales to the
U.S. — consisting mostly of low-techs, inexpensive items — totaled
about $25 billion (in 1992, as already mentioned), leaving the U.S.
with an $18 billion trade deficit. Direct investment by U.S. com-
panies in China in 1992 was $269 milllion according to the Com-
merce Department, a figure that may be dramatically understated
because it reflects the first port which U.S. money hits. So the $8.5
billion that U.S. companies had directly invested in Hong Kong in
1992 may include substantial investment in China. (Robert S.

Greenberger, "U.S. Sanctions China for Sales of Weapons," Asian
Wall Street Journal, Aug. 26, 1993, pp. 1-2).
U.S. -JAPAN TRADE WAR

"[TJhe trade war between [the United States and Japan] goes
on with increasing fury, with America suffering irreversible re-
verses as grimly reflected in her chronic trade deficit with Japan.
It is significant that the consensus among the major trading
partners of Japan is that her actual policy with regard to imports
is woefully bereft of any element of reciprocity. Japan is free to
trade in America and Western Europe, but the latter are not free
to trade in Japan." (M.P. Aquino, "U.S.Asia-Pacific Policy," Manila
Bulletin, April 7, 1993, p. 8).
Consider, for instance U.S. concerns about barriers to foreign
companies bidding on Japanese Government construction contracts.
(The Foreign Post, "Hosokawa Welcomes U.S. Sanctions Postpone-
ments,'* Vol. 1, No. 41, Oct. 28-Nov. 3, 1993, p. 1).
TRADE RELATIONS AND THE GATT
A complex, ongoing process, is the formulation of a compre-

hensive policy for a nation's international trade relations. Trade
policy is a product of attitudes, laws, regulations, and objectives
which determine the rules for international trade relations.
Shortly after World War I I , the free world trading partners
engaged in global planning to reduce trade barriers in order to
encourage freer trade. In 1948, they met in Havana to complete a
draft of the Charter of the International Trade Organization (ITO).
However, when the U.S. Congress failed to ratify the ITO treaty,
the organization failed. Thereupon, the U.S. turned to the General
Agreement on Tariffs and Trade (GATT) that had been drafted in
Geneva in 1947. The U.S. was able to join the Contracting Parties
to G A T T by executive agreement under authority delegated to
President Harry Truman under the Reciprocal Trade Agreement
Act of 1934.
The basic concept of G A T T is to liberalize international trade.
Its main activities fall into three (3) categories: (1) tariff bar-
gaining; (2) quantitative restrictions; and (3) settlement of dis-
putes.
In reality, G A T T is not an international organization, per ae,

but a trade agreement. Despite this, it haB evolved into an inter-
national organization .which sponsors tariff negotiations, settles
disputes, and generally administers the G A T T agreement. The
basic document mentions only "Contracting Parties" and an "Ex-
ecutive Secretary." However, there are a number of committees
that have been activated over the years. The most important of
these is the Council, composed of representatives of G A T T mem-
bers, who deal with matters between working sessions. The Council
meets, as needed, and exercises advisory powers and makes up an
agenda for each session. In addition, there is a Trade and De-
velopment (TDC); the Balance of Payments Committee; Commit-
tee I I , an agricultural committee; and the Trade Negotiations
Committee. After setting down a basic set of rules under which
international trade bargaining can take place, the idea of G A T T is
for this eventuality to result in the drafting of a master agreement
that will encompass the results of tariff negotiations and will
include protective clauses which will prevent evasion of tariff
concessions.
There are three basic methods of which G A T T deals with the

abatement and elimination of tariffs and other disruptive trade
practices, namely:
One. Common rules of trade that give a "most favored nation
treatment."
Two. Commitments to observe negotiated tariff concessions
and not to initiate other restrictive devices.
Three. Special divisions to promote the trade of developing
countries.
GATT operates thru annual meetings, where the Contracting

Parties carry on separate negotiations with each of the other
Contracting Parties on a bilateral basis. When a Contracting Party
has completed a series of negotiations, its concessions to each of
the other Contracting Parties are merged into a master agreement.
The master agreement represents a Contracting Party's combined
commitments to all other Contracting Parties. This means that if
a country gives a tariff concession to another country, it gives the
same concession to all countries that adhere to GATT. Allowable
exceptions are: (1) Manufactured products from developing coun-
tries may be given preferential treatment over those products from
industrial nations; (2) Concessions given to other members of a
regional trading bloc, do not have to be given to other nations; and

(3) Nations that discriminate againBt products from a given nation
may not necessarily be given the moat favored treatment by the
nation whose products are discriminated against.
G A T T sets forth a general rule prohibiting the use of quan-
titative import restrictions, Buch as, import quotas. There are,
however, four (4) exceptions to this rule: (1) protection of domestic
agricultural support programs; (2) to redress a balance of payment
problem; (3) for economic development; and (4) national security.
A number of disputes are resolved by bilateral consultations
between the members. However, when a dispute is not settled
bilaterally, it may be taken to the collective membership. Referred
to a "panel" on complaints appointed by the Contracting Parties,
Baid panel hears the dispute and makes a recommendation to the
Contracting Parties. Now should the recommendation not be ob-
served, the complaining party may be authorized to suspend the
implementation of its trade obligations to the other party.
THE URUGUAY ROUND

Currently, the 7-year old Uruguay Round of trade talks in-
volving the 108-nation negotiations, which aim to liberalize hun-
dreds of billions of dollars of trade in order to stimulate economic
growth and create jobs, has been paralyzed. The talkB should have
finished four years ago (1990) but got bogged down in disputes
between the European Community and major farm exporters, es-
pecially the United States, over cutting agricultural BubBidies. The
dispute had paralyzed all other work, including negotiations that
were hardly related, on bringing services under free-trade rules
for the first time and on cutting import tariffs.
G A T T Director-General Peter Sutherland set an April 1994

date for the signing of a trade liberalizing accord and issued h i s
sternest warning yet about the costs of failure. Challenging gov-
ernments to show political leadership and resist protectionist
pressure, Sutherland warned: "Let no one be under any illusion,
failure to reach agreement ... would undermine the multilateral
trading system with unpredictable economic, political, and even
security consequences." (Remarks made during the August 31, 1993
meeting of G A T T s top level Trade Negotiations Committee).
Fears are growing that French demands to renegotiate a farm

agreement between the European Community (EC) and the U.S.
may dash chances of wrapping up the Uruguay Round trade ac-

cord as it would undermine one of its central planks. Germany,
traditionally one of Europe's main free trade proponents, thru
Chancellor Helmut Kohl, has voiced its sympathy for the French
objections to cuts in farm subsidies. After meeting French Prime
Minister Edouard Balladur, Belgian Foreign Minister Willy Claes
also spoke in favor of limited renegotiation of the EC-U.S. deal.
Belgium currently holds the EC's rotating presidency.
QUERY:
Article 4 of the Charter of the Economic Rights and Duties of
States provides: "Every State has the right to engage in interna-
tional trade and other forms of economic cooperation irrespective
of any differences in political, economic, and social systems. No
State shall be subject to discrimination of any kind based solely on
such differences."
Unfortunately, there is bound to be controversy as to what
constitutes a "discrimination." Thus, if under a trade treaty be-
tween State A and State B, the parties agree to grant to each other
special reciprocal State privileges, e.g., by way of reduced customs
duties, is State X entitled to complain of discrimination if goods
exported from its territory to these States continue to be subject
to the former amount of duty?Ansu>er: If State X were a party to
a treaty with these States, providing for most-favored-nation
treatment, the inequality of customs privileges would clearly
amount to discrimination. (See the Case Concerning Rights of
Nationals of the United States of America in Morocco [1952] ICJ
176 at 192 et seq.). Nonetheless, in the absence of any such treaty
with a most-favored-nation clause or obligation, it is difficult to
accept the view that the grant of reciprocal trade privileges be-
tween two States, inter partes, can represent a discrimination as
against a third State. (See the Case of Oscar Chinn, Pub [1934] PCIJ
Series A/B, No. 63).
Case:
The Barcelona Traction, Light and

P o w e r Co., L T d . (Second Phase)
1970, I C J 3
One overriding general principle is that an investment-
receiving State, while bound to extend some protection in law
THE HIGHT OF PROPERTY AND JURISDICTION
to the investments concerned, does not thereby become an

insurer of that part of the investing State's wealth corre-
sponding to such investments. Certain risks must remain.
THE RULES ON THE JURISDICTION OVER CRIMES

COMMITTED ON BOARD FOREIGN SHIPS
Whether a crime committed aboard a pUbhc vessel (such as
a battleship) took place on the high seas or within our territorial
waters (or maritime zone), the country whose flag the vessel carries
has jurisdiction on the theory that the vessel is an extension of the
territory of the said State.
When the crimes have been committed aboard private or
merchant vessels, the following rules apply:
(1) If the crime occurred on the high seas, the country of the
flag of the vessel has jurisdiction. Thus, if the vessel carries the
French flag, Philippine courts have no jurisdiction except, of course,
in the instances enumerated under Art. 2 of the Revised Penal
Code, thus:
"Art. 2. Except as provided in the treaties and laws of
preferential application, the provisions of [the Revised Penal
Code of the Philippines] shall be enforced not only within the
Philippine Archipelago, including its atmosphere, its interior
waters and maritime zone, but also outside of its jurisdiction,
against those who —
a) should commit an offense while on a Philippine
ship or airship;
b) should forge or counterfeit any coin or currency
note of the Philippine Islands or obligations and securities
issued by the Government of the Philippine Islands;
c) should be liable for acts connected with the intro-
duction into these Islands of the obligations and securities
mentioned in the preceding number;
d) while being public officers or employees, should
commit an offense in the exercise of their functions; or
e) should commit any of the crimes against security
51
and the law of nations."
" A r t . 2, Revised Penal Code.

(2) If the crime took place inaide Philippine territorial wa-

ters — two theories have generally been used to determine the
question of jurisdiction: the English rule (which emphasizes the
territoriality principle) and the French rule (which stresses the
nationality theory).
y/
(a) The English Rule — Here the territory where the
crime "was committed (Philippines) will have jurisdiction ex-
cept:
1) in matters relating to the order and discipline
in the vessel; and
2) those which affect solely the shipB and its oc-
cupants such as minor or petty criminal offenses com-
36
mitted by members of the crew.
J&onch Ruler — Under this rule founded on
the opinion of the French Council of State in 1806, the State
whose flag is flown by the vessel, would have jurisdiction
except if the crime affects the peace, order, security, and safety
37
of the territory
In the case of People v. Wong Cheng,™ the Philippine Su-
preme Court expressly stated that the English Rule obtains in the
Philippines, and as authority therefor, it cited the case of U.S. v.
Look Chaw,™ which it had previously decided, but which on the
contrary had applied the French, not the English Rule. Be that as
it may, the difference between the two rules is largely academic
and theoretical, the two rules being essentially the same. Thus, if
aboard a German ship anchored in Manila Bay, the crime of murder
is committed, under the English Rule, the Philippines would have
jurisdiction in view of the general rule; under the French theory,
the Philippines also have jurisdiction under the exception for the
r e indeed affects the peace and security of the territory. Whether

follow therefore the English or the French rule on the matter
is not significant:, the effect is the same. Mention, however, must
be made of two (2) pertinent rulings by our Supreme Court:
" S e e Hyde, International Law, Vol. I, p. 739.

" S e e Brierly, The Law of Nation*, p. 180.
M
4 6 Phi). 729.
a
1 8 Phil. 573.
THE RIGHT OP PROPERTY A N D JURISDICTION
(1) The mere possession of opium aboard a foreign vessel in

transit iB not triable by our Courts because mere possession
thereof, without actual use within the territory, is not regarded as
0
a disturbance of the public order.*
(2) Upon the other hand, "to smoke opium within our ter-
ritorial limits, even though aboard a foreign merchant ship, is
certainly a breach of the public order here established, because it
causes such drug to produce its pernicious effects within our ter-
ritory. It seriously contravenes the purpose that our Legislature
had in mind in enacting the aforesaid repressive statute (the Opium
Law), and is, therefore, triable in our Courts." *'
BAR
A French vessel in transit is anchored along a pier at
the Port Area, Manila. There was found in a cabin of one of
the members of the crew, who is a Frenchman, a package of
opium. The French sailor admitted possession of the same.
May he be criminally prosecuted for illegal possession of opium
in our courts? Why? Suppose the package of opium was
lowered from the boat and placed on a banca alongside the
vessel ready to be brought ashore, may a criminal prosecu-
tion be filed in the Philippine Courts? Why?
ANSWER:
(a) No, he cannot be successfully prosecuted for illegal
possession of opium aboard a foreign vessel in transit is not
triable by Philippine Courts. The act is not an offense against
2
our public security or safety.*
(b) Upon the other hand, if the opium has already been
lowered from the boat to the banca, the offender may be
prosecuted because the act would be an open, pernicious vio-
lation of our law on the matter. Clearly, in this case, the
intent is to bring the prohibited drug to our shores, for the
43
possible use of the inhabitants in our territory.
*°U.S. v. Look Chaw, 18 Phil. 673.

"People v. Wong Cheng, 46 Phil. 729.
"U.S. v. Look Chaw. 18 Phil. 573.
"See People v. Wong Cheng, 46 Phil. 729.
320 INTERNATIONAL L A W AND WORLD P O U T I C S
niuh Asaali, el al v. Commissioner of Customs

L-24170, Dec. 16, I960
FACTS: On Sept. 10, 1950 at about noon time, a Phil-

ippine customs patrol team on board Patrol Boat St-23 in-
tercepted five (5) sailing vessels on the high seas between
British North Borneo and Sulu, while they were heading
towards Tawi-tawi, Sulu. The vessels are all of Philippine
registry, owned and manned by Filipino residents of Sulu.
The cargo consisted of cigarettes without the required import
license (hence, smuggled). They were seized by the patrol
boat. Issue: May the seizure be made although the vessel was
on the high seaB?
HELD: (Thru then Mr. Justice Enrique M. Fernando,

later to become Chief Justice):
Yes, for the following reasons: (a) The vessels are of
Philippine registry, hence under the Revised Penal Code, our
penal laws may be enforced even outside our territorial juris-
diction.
(b) It is well-settled in International Law that a state
has the right to protect itself and its revenues, a right not
limited to its own territory, but extending to the high seas.
{Church v. Hubbart, 2 Cranch 187, 234).
THE PRESENCE OF A LEASEHOLD OR THE

EXISTENCE OF TREATY STIPULATIONS
A leasehold in international law generally allows the lessee

full powers of possession for a period of time over the territory
of the lessor. The agreement naturally impairs the exercise of
sovereignty of the lessor-State. Some forms of leases are the fol-
lowing:
(1) A leasehold that would make the lessor-State retain only

N O M I N A L sovereignty, actual jurisdiction and control being
transferred to the lessee-State.
Examples:
(a) Lease by Kwang-Chau-Wan by China to France
(1898).
(b) Lease of Port Arthur by China to Russia (1898).
NOTE: In turn. Port Arthur was leased by Russia to Japan

in 1905 (end of the Russo-Japanese War).
(2) A leasehold for certain construction purposes, the les-
see-State agreeing to pay "rent."
Example:
Lease of a certain part of Panama to the United States for
the construction of the Panama Canal (an inter-ocean canal).
(3) A leasehold for a stipulated number of years for the
installation and maintenance of military bases.
Example: The now abrogated Philippine-United States Mili-
tary Bases Agreement (entered into on March 14, 1947) for the
mutual protection of the two countries. American bases were es-
tablished in the Philippines by virtue thereof.
THE PHILIPPINE-UNITED STATES MILITARY

BASES AGREEMENT (NOW TERMINATED )
As amended, the rules on criminal jurisdiction as provided
for in the Bases Agreement are as follows:
(1) Exclusive Jurisdiction
(a) The Philippines has exclusive jurisdiction over
members of the U.S. Armed Forces or civilian component and
their dependents with respect to offenses punishable by
Philippine law, but not by U.S. law. (Art. XIII 2a).
(b) The military authorities of the United States have
exclusive jurisdiction over persons subject to the military law
of the United States with respect to offenses punishable by
U.S. law, but not by Philippine law. (Art. XIII 2b).
(2) Concurrent Jurisdiction
With respect to offenses punishable both by Philippine and
by U.S. law, the Philippines shall have the primary right to ex-
ercise jurisdiction in all offenses, except in the following cases (in
the following cases, be it noted the U.S. has primary jurisdiction):
(a) OffenBeB committed by persons subject to U.S. mili-
tary law against the property or security of the United States.
[NOTE — A "security" offense against a State shall
include:
322 rNTERNATlONAL L A W A N D WORLD POLITICS
1) treason against the State

2) sabotage, espionage, or violation of any law
relating to official secrets of that State, or secrets to the
national defense of that State]
b) Offenses committed by persons subject to U.S.
military law — against the property or person of:
1) a member of the U.S. armed forces;
2) a member of the civilian component; or
3) a dependent.
(c) Offenses committed by persons subject to U.S.
military law — arising out of any act or omission done in the
performance of official duty. (Art. XIII 3 a,b).
Example:
Inside Subic Naval Base, an American lieutenant raped
a Filipino girl, who was innocently visiting the base. What
court will have jurisdiction over the offense committed?
ANS.: The Philippine court will have primary jurisdic-
tion under the amended Bases Agreement. The fact that crime
was committed inside an American Military Base is immaterial
— for while indeed the crime was committed by an American
lieutenant (a person subject to U.S. military law), the fact
remains that the victim is not a member of the United States
Armed Forces nor a member of its civilian component nor a
dependent. The other exceptions can have no application for
the crime was not committed against the property or security
of the United States; neither is the crime of rape one done in
the performance of official duty.
(3) Waiver of Jurisdiction

The Agreement allows a waiver by the State having the
primary jurisdiction — provided that notification is made as soon
as practicable. Thus, under Art. XIII 3c, "if the State having the
primary right decides not to exercise jurisdiction, it shall notify
the authorities of the other State as soon as practicable. The
authorities of the State having the primary right shall give
sympathetic consideration to a request from the authorities of the
other State for a waiver of its right in cases where the other State
considers such waiver to be of particular importance."
(4) Persona Over Whom There Is No Jurisdiction

It should be noted that the military authorities of the United
States have no right to exercise jurisdiction over persons who are
nationals of, or ordinarily merely residents in the Philippines un-
less they are members of the United States Armed Forces. (Art. XIII,
3, last par.).
(5) Carrying-Out of Death Sentence

May the United States military authorities carry out a death
sentence under the Bases Agreement? The Agreement expressly
states that "a death sentence shall not be carried out in the Phil-
ippines by the authorities of the United States if the Legislation
of the Republic of the Philippines does not provide for such pun-
ishment in a similar case." (Art. Ill, 7a).
(6) Prohibition Against Double Jeopardy
If trial has been conducted for a particular offense by one
State, may the other State conduct trial for the same offense? In
other words, does the prohibition against "double jeopardy" (ordi-
narily understood) apply? Yes, by express provision of the Agree-
ment. Thus, Art. XIII (8) provides:
"Where an accused has been tried in accordance with
the provisions of this Article by the authorities of the Repub-
lic of the Philippines or by the authorities of the United States,
and has been acquitted, or has been convicted, and is serving,
or has served, his sentence, or has been pardoned he may not
be tried again for the same offense within the same territory
by the authorities of the other State. However, nothing in
this paragraph shall prevent the military authorities of the
U.S. from trying a member of its forces for any violation of
rules or discipline arising from an act or omission which
constituted an offense for which he was tried by the authori-
ties of the Republic of the Philippines."
(7) Effectivity of Amended Rules on Criminal Jurisdiction

The amended rules on criminal jurisdiction are already in fact
being enforced by both governments. They became effective on
August 10, 1965 according to "A Revised List of and An Index to
Philippine Treaties and Other International Agreement," (compiled
and prepared by the Division of Treaties, Office of Legal Affairs,
Department of Foreign Affaire).
QUERY: MAY A U.S. BASE COMMANDER IN THE PHILIPPINES

BE HELD IN CONTEMPT BY OUR COURTS OF JUSTICE?
Sergeant Ronald E. McDaniel, a member of the U.S. Air Force

stationed at Clark Air Base, Philippines was one of the accused in
a forcible abduction with attempted rape case filed at Angeles
City. One of the witnesses summoned to appear was Sergeant
Bernard Williams, also of Clark Air Base. On Jan. 16, 1970, Sgt.
Williams was not able to appear at the court hearing, having al-
ready departed from the Philippines. The Court later asked the
Base Commander, Col. Averill F. Holman to show cause why he
should not be held in contempt for failure to bring Sgt. Williams
to Court. The U.S. Government ordered Col. Holman N O T TO
A P P E A R , and for this purpose, the Colonel's commanding officer
issued a certificate stating that the non-appearance by Holman
was a D U T Y imposed by superior authorities. In view of this
development, the Angeles Court of First Instance (CFI) (thru Judge
Ceferino Gaddi) ruled that the Colonel was guilty of contempt
of Court. In the motion for reconsideration, Col. Holman alleged
that Sgt. Williams, who was now in the United States, had been
able to obtain an injunction from the U.S. District Court for the
District of North Dakota prohibiting the U.S. Air Force from
transferring him to the Philippines, on the theory that the transfer
would amount to extradition despite the absence of an extradition
treaty between the U.S. and the Philippines, citing Valentine v.
U.S., 229 U.S. 5 (1936). Judge Gaddi denied the motion for recon-
sideration, and ordered the arrest of Col. Holman. The order was
not served, and Col. Holman was eventually able to depart from
the Philippines, on a new assignment, because of the reluctance of
the Philippine Department of Foreign Affairs to prevent such
departure. The Department reasoned out that the question of
whether or not Holman should be held guilty of contempt was not
a judicial matter but one to be resolved "in the corridors of diplo-
macy."
Incidentally, one of the authors of this humble book was one
of the amicus curiae invited by the Court to help it in the dispo-
sition of the contempt case. (See Order of March 11,1970, CFI of
Pampanga and Angeles City). His position was that the question
ought to be threshed out thru diplomatic channels. As will be noted,
the good Judge differed from the co-author's opinion. For whatever
it may be worth, the co-author's memorandum to the Court, dated
March 20, 1970, follows in full:
The undersigned counsel (invited by this Honorable Court to

act as amicus curiae in its order dated March 11, 1970, the invi-
tation being accepted in a telegram dated March 14, 1970), re-
spectfully submits the following memorandum:
I THIS HONORABLE TRIBUNAL HAS, IN THE OPINION

OF UNDERSIGNED AMICUS CURIAE, N E I T H E R THE
P O W E R T O C I T E FOR C O N T E M P T T H E BASE A U -
THORITIES INVOLVED, NOR THE POWER TO ENFORCE
A N Y J U D G M E N T FOR C O N T E M P T W H I C H I T M A Y
PROMULGATE ON THE MATTER.
While the power to cite for contempt is said to be inherent in

a court of justice, still this power may be exercised only over per-
sons and entities over which the tribunal can acquire and effec-
44
tively enforce its jurisdiction. Now then, it is submitted that this
Honorable Court can neither acquire nor effectively enforce juris-
diction over the base officers involved, in view of the following
consideration:
(a) A suit against said base officers, in their capacity
as such, is virtually a suit against not only the Armed Forces
of the United States in the Philippines, but also against the
United States itself. It is well known in Public International
Law that unless there is consent thereto, a suit against a
foreign state of government, militates against the sovereign
44
equality of states. *
(b) Hypothetically assume that for reasons of its own,
the United States Government (thru for example, the U.S.
President or the superior officers at the Pentagon) had OR-
DERED the base officers involved NOT TO APPEAR PER-
S O N A L L Y NOR TO PRODUCE THE ACCUSED, it is evident
that despite a clear violation of the Base Agreement, the base
officers would only be following the orders of superior au-
thorities. Even were we to assume the orders to be illegal.
" A Court cannot punish for contempt if it has no jurisdiction I In Re Hall

10 Mich. 210; hi Re Morton, 10 Mich. 208) or where it has no jurisdiction to
inquire as to the particular matter. (Holman v. Austin, 34 Tex 668) . (See 13 CJ
29).
"•See Max Wulfsohn, et al. v. Russian Socialist Federated Soviet Republic,
234 N Y . 372-1923.
still the same would be an A C T OF S T A T E , and virtually, we

would be suing the foreign State itself.
(c) With the exception of the crimes referred to in the
Bases Agreement (both in the original and the amended
versions) (incidentally, contempt by the base authorities is
not referred to therein), the Philippine Government has NO
JURISDICTION over the U.S. Armed Forces in the Philippines
(the commanders and the members). (See Raquiza v. Brad-
ford, 75 Phil. 50; Tubb v. Griess, 78 Phil. 249).
As aptly stated by Oppenheim-Lauterpacht: "Whenever

armed forces are on foreign territory in the service of their
home State, they are considered E X T E R R I T O R I A L and re-
main under its jurisdiction. A crime Committed on foreign
territory by a member of these forces cannot be punished by
the local civil or military authorities but only by the com-
manding officer of the forces or by other authorities of their
home State." (Lauterpacht: Oppenheim's International Law,
Ub
Vol. I, p. 759).
(d) A s s u m i n g that a V I O L A T I O N of the Bases

Agreement has been made, a domestic tribunal certainly has
no jurisdiction to punish said violation thru civil or criminal
proceedings, much less via summary contempt proceedings.
Violations of treaties or executive agreements can only
be threshed out at a conference table by the duly accredited
representatives of the States involved.
Mb
U p o n the other hand, the U.S. Military Forces abroad have been in-
structed by the Joint Chiefs of Staff not to interfere in P U R E L Y I N T E R N A L
AFFAIRS:
"In applying policy in reference message to overseas areas, it must be
recognized that a well.settled principle of international law is that one nation
may not interfere with the internal afTairs or another. In all countries where our
forces are stationed, we are guests of a host nation. In most countries, our rights
and privileges are specifically delineated by status of Forces Agreements (in the
Philippines, by the Bases Agreement). Our personnel do not have the right or
privilege of participating in mass picketing, demonstrations, or any other group
or individual action designed to alter the policies, practices, or activities of the
local inhabitants who are operating within the framework of their own laws.
Accordingly, such actions by members of the U.S. Armed Forces in foreign coun-
tries are prohibited.' (Unclassified JCS Message 2190, August 22, 1963. ampli-
fying unclassified message DEF 344531, July 18, 1963, A.J.I.L. — Vol. 58.
January, 1964. No. 1, p. 167).
THE FOURTH FUNDBMANTAL RIGHT: 327
In this connection, an interesting case involving the

Panama Canal Zone may perhaps be cited; In Dayle v.
Fleming, 219 F. Supp. 277, U.S. District Court Canal Zone,
July 8, 1963 (referred to in the American Journal of Inter-
national Law, Vol. 58, Jan. 1964, No. 1, pp. 191-192), the
salient facts were as follows: Plaintiff sought an injunction
restraining the Governor of the Panama Canal Zone from
among other acts; flying the Panamanian flag alongside, and
at an equal height with the United States flag on the ground
that such acts would violate U.S. sovereignty and laws. The
Canal Zone District Court denied the injunction on the ground
that the issue of impairment of sovereignty in the Canal Zone
was a matter, not for the Courts, but for the executive and
legislative branches of the Government in their conduct of
foreign relations.**' While the court felt that the acts com-
plained of were confusing and reflected a position of weakness
that would lead to further misunderstanding and discord, it
concluded:
"What nation is sovereign is only between the treaty-

making powers of the nations involved, and is not a question
that is up to the courts. A decision by the Courts that the
U.S. is or is not sovereign in the Canal Zone would be uni-
lateral in effect. It would be binding on the people of the U.S.
but would have no force on the people of other nations."
(e) One way of formulating a conclusion on any given
proposition is to view the matter from the side of the other
party involved. What, for instance, would be our position if
for a violation (imagine or otherwise) of the Bases Agreement,
an official of the Philippine Government (say an Army General
or a cabinet secretary, or a member of the judiciary) would be
required by the U.S. Military courts (inside the Bases or
otherwise) to explain why he should not be cited for con-
tempt? It is believed by the undersigned that the answer is
clear; we will question the jurisdiction of said military tri-
bunals; more, we will claim that the matter should be threshed
"'In Max Wulfsohn el. al. v. Russian Socialist Federated Soviet Republic
234 NY 372 (1923), among the remedies suggested were negotiation and reprisal.
Indeed, interpretation by the national courts of one Slate cannot bind the other,
that made by an international tribunal ought to have a conclusive effect. (See
Times-Maroon Nationality Dacran Cam, P.C.l.J. Pub. Serv. B., No. 4. pp. 29-30).
out over diplomatic conference tables by the two governments

concerned.
The undersigned counsel is, of course, aware of the zeal- -
OUB position taken by our own Supreme Court on matters
where foreign States have intentionally or otherwise chosen
to disregard our judicial processes. Thus in the case of Tes--
tale Estate of Idonah Slade Perkins: Renato Tayag v. Benguet
Consolidated, Inc., L-23145, Nov. 29, 1968, the Court held,
thru Mr. Justice Enrique M. Fernando [later to become Chief
Justice] that the refusal of the New York administrator to
obey an order of the Philippine Court is derogatory to the
dignity of the Philippine judiciary; nonetheless, be it observed
that in said case, no contempt proceedings were ever insti-
tuted.
II EVEN ASSUMING T H A T THIS T R I B U N A L HAS THE

POWER TO CITE FOR C O N T E M P T THE BASE A U -
T H O R I T I E S I N V O L V E D ( A N D T O E F F E C T I V E L Y EN-
FORCE ITS JUDGMENT T H E R E O N ) , S T I L L IT W O U L D
SEEM FROM THE RECORDS T H A T A C T U A L L Y OR CON-
STRUCTIVELY NO C O N T E M P T HAS BEEN COMMITTED.
It would seem from the records of Lhe case available to the

undersigned that, even assuming that this Honorable Court has
the power to cite for contempt the base authorities involved, still
no contempt, whether actual or constructive, and whether direct or
indirect, has been committed.
Firstly, it would seem that the Base authorities have been
trying to cooperate: a conference in chambers was made, with Lt.
Col. Hodges in attendance (according to the communication and
certifications of General McNickle) on certain occasions, the accused
in the criminal case were represented by counsel; even in the last
proceeding held, American lawyers (presumably connected with
the case) were present in court.
Secondly, the non-appearance of the accused has been ex-
plained (perhaps not satisfactorily, but nonetheless explained) by
references to a shift in assignments and to an alleged loss of the
certificates [certifications] re: the custody.
Thirdly, while the Base Commander did not personally ap-

pear, it may be assumed that he was represented in Court by
Major Whisenant. When a person has been ordered to explain why
he should not be cited for contempt, said person need not appear
in person to make the explanation; he may properly be represented
44<l
by another.
CONCLUSION
It is respectfully suggested that in view of what has been
said in this memorandum, the motion to cite the base officers for
contempt be denied, and instead, an imperative request be made
with the Secretary of Foreign Affairs and the Secretary of Justice
to settle the issues involved with the U.S. Embassy and the Base
Authorities.
Done in Mandaluyong (for Angeles City) this 20th day of
March, 1970.
Respectfully submitted,
EDGARDO L. PARAS
REDUCED DURATION PERIOD OF THE BASES AGREEMENT

In the original 1947 document, the duration for the Bases
Agreement was set for a period of 99 years. However, by virtue of
the Ramos-Rusk Exchange of Notes of September 16,1966, the
term has been decreased to a period of twenty-five (25) years,
counted from Sept. 16, 1966. Article XXLX of the Agreement, as
amended, read:
"Term of Agreement — Unless terminated earlier by
mutual agreement of the two governments, this agreement
and agreed revisions thereof shall remain in force for a pe-
riod of 25 years from Sept. 16, 1966, after which, unless
extended for a longer period by mutual agreement, it shall
become subject to termination upon one year's notice to either
government."
The foregoing was agreed upon in Washington, D.C., U.S.A.
between Narciso Ramos, Philippine Secretary of Foreign Affairs,
and Dean Rusk, U.S Secretary of State.
Be it noted that while in the Agreement as amended, the
period is stated to be 25 years, actually the same is for at least
'See Bake o. Uoren. L-20108, Dec. 28, 1964.

twenty six (26), years, because the termination will be upon one
year's notice.
AMENDMENTS TO THE BASES AGREEMENT

In view of the numerous irritants between the Philippine and
the United States Governments in connection with the implemen-
tation of the Bases Agreement, a new agreement was signed at
Malacanang on January 7, 1979. In his "Foreign Policy Report"
during the opening of the Batasang Pambansa (National Assem-
bly) on January 15, 1979, then President Ferdinand E. Marcos
summarized the substance of the new amendments. He said the
two governments agreed that:
"1. First, the bases which are of the subject of the
agreement are Philippine Military Bases over which Philip-
pine Sovereignty extends, and that only the Philippine flag
shall be flown singly at the bases;
2. Second, that each base shall be under the com-
mand of a Philippine base commander;
3. Third, that the United States shall have the use of
certain facilities and areas within the bases, and shall be
assured unhampered military operations involving its forces
in the Philippines;
4. Fourth, that the base areas shall be reduced from
their erstwhile dimensions, portions of the base areas will be
developed by the Philippine government for non-military
purposes;
5. Fifth, that the Philippine government will provide
for perimeter security over the bases; and
6. Sixth, that every fifth year from the date of signing
of the amendment, there shall be a thorough and complete
review and reassessment of the government to ensure that it
continues to serve the mutual interest of both parties.
In connection with the first and second amendments, turno-
ver ceremonies were held on February 16, 1979 both at Clark Air
Base (Pampanga) and Subic Naval Base (Zambales), the latter
being the biggest naval facility outside America. At the grand-
stand erected in front of the Clark gates, Marcos said:
"If today we raise the Filipino flag and return to the
Filipino the fullest of his pride and dignity, today, too, we
T H E RIGHT OF PROPERTY A N D JURISDICTION
redeem the pledge of the American people to the Filipino race

and recognize the sovereignty of the Philippines over this
territory."
U.S. Ambassador Richard Murphy (who had signed the
agreement in behalf of the U.S. Government) and General David
C. Jones, Chairman of the joint chiefs of staff, U.S. Department of
44
Defense, were also present. *
THE REJECTED TREATY OF FRIENDSHIP, COOPERATION ,

AND SECURITY
(This is the text of the agreement signed by the Philippine
and U.S. governments concerning the continued operation of
American military bases in the country but was later on rejected
by the Philippine Senate.
PREAMBLE
The Government of the Republic of the Philippines and the
Government of the United States of America;
REITERATING their firm commitment to the aims and
principles of the Charter of the United Nations and their steadfast
desire to live in peace with all peoples and all nations;
SHARING a deep and abiding concern for the maintenance of
international peace and security;
RECOGNIZING their mutual interest in advancing the so-
cial and economic development of their respective countries and
creating a stable basiB for peace in the region;
DESIRING to recast their historic ties of friendship in the
light of present and emerging realities in the domestic, regional
and global situation, and in the context of full recognition of and
respect for each other's independence, sovereignty and territorial
integrity; and
RECOGNIZING that this agreement, which constitutes a
treaty under international law, shall provide a framework for their
continuing relationship and cooperation:
Agree as follows:
•See Bulletin Today, Feb. 17, 1979. p. 1

Article 1
Areas of Cooperation
Seizing the historic opportunity to strengthen relations be-
tween their countries in ways that will advance peace and eco-
nomic development, the two Governments shall maintain and
develop cooperation between their countries on matters of common
concern or interest. This cooperation shall be maintained and
developed on the basis of sovereign equality and shall encompass
economic, scientific, technological, cultural, educational, health,
defense and security matters upon which they may mutually agree.
Article II
Economic Cooperation
Give the importance of economic relations between the two
countries, the two Governments shall advance cooperation designed
to promote sustainable growth and development in accordance with
markets forces and to facilitate the expansion of economic oppor-
tunities. This cooperation shall include a6 objectives the expansion
of trade, the enhancement of investment opportunities, including
as appropriate the concept of build, operate and transfer, the
improved flow of economic assistance, the improvement of coop-
erative and management procedures related to external assist-
ance, and other measures which facilitate economic growth and
development. In this context, the two Governments take note of
the positive contribution of coordinated international efforts, and
in particular the Multilateral Assistance Initiative, toward the
achievement of these objectives.
Article III
Scientific and Technological Cooperation
Recognizing that the advancement of science and technology
is important to the social and economic development of both coun-
tries, the two Governments shall seek to further develop and carry
out programs of scientific and technological cooperation for peaceful
purposes. Toward this end, the two Governments shall undertake
to negotiate and conclude an agreement on scientific and techno-
logical cooperation. As provided by such framework agreement,
they shall provide opportunities to exchange experts, ideas,
information, skills and techniques, and to collaborate on prob-
lems of mutual interest, including intellectual property rights pro-
tection.
T H E FOURTH F U N D A M E N T A L RIGHT: 333
Article TV
Cultural and Educational Cooperation
1. Desiring to strenghlen the friendship and understand-
ing between their peoples and to enhance the familiarity of their
peoples with the history, institutions, and cultural achievements
of the other country, the two Governments shall seek to maintain,
improve and further develop their cooperation in the cultural and
educational fields.
2. To this end, the two Governments shall promote a wide

exchange of knowledge, professional talents and contacts in vari-
ous disciplines and fields of culture and learning, in accordance
with Supplementary Agreement Number One: Agreement on Cul-
tural and Educational Cooperation.
Article V
Health Cooperation
The two Governments also take note of the major contribu-
tions to the welfare of both their peoples as a result of cooperative
programs and exchanges in the areas of health sciences and pro-
vision of health care. Accordingly, within the framework of scien-
tific and technological cooperation, the two Governments shall give
particular attention to the possibilities for enhanced cooperation
and exchange activities in these areas. The two Governments shall
also continue to develop and support, within the context of assist-
ance programs, appropriate programs and initiatives to improve
the provisions of health care and to advance health sciences'
knowledge and expertise.
Article VI
Veterans Issues Cooperation
1. In recognition of the contribution of Philippine nationals
who fought under the American flag during the Second World
War, there is hereby established a Philippine-American Joint
Committee on Veterans Affairs as a means of continuing consul-
tation between the two Governments on any matter relating to
Filipino veterans of World War II which either side wishes to
bring before the Committee. The Philippine-American Joint
Committee on Veterans Affair shall be responsible for making
appropriate recommendations on matters before it to the Executive
Branch of the Government of the United States.
934 I N T E R N A T I O N A L L A W A N D WORLD POLTTICB
2. The Philippine-American Joint Committee on Veterans

Affairs shall be composed of an equal number of representatives of
the Government of the Philippines and the Government of the
United States. The Committee shall meet annually, or otherwise
as mutually agreed at the request of either Government.
Article VII
Defense Cooperation and Use of Philippine Installations
1. Recognizing that cooperation in the areaB of defense and
security serves their mutual interest and contributes to the main-
tenance of peace, and reaffirming their existing defense relation-
ship, the two Governments shall pursue their common concerns in
defense and security.
2. The two Governments recognize the need to readjust
their defense and security relationship to respond to existing re-
alities in the national, regional and global environments. To this
end, the Government of the Republic of the Philippines allows the
Government of the United States to use installations in Subic
Naval Base for a specified period, under specific conditions set
forth in Supplementary Agreement Number Two: Agreement on
Installations and Military Operating Procedures and Supplemen-
tary Agreement Number Three: Agreement on the Status of Forces.
3. Both Governments shall also cooperate in the mainte-

nance, upgrading, and modernization of the defense and security
capabilities of the armed forces of both countries, particularly those
of the Republic of the Philippines. In accordance with the common
desire of the Parties to improve their defense relationship thru
balanced, mutual contributions to their common defense, the Gov-
ernment of the United States shall, subject to its constitutional
procedures and to United States Congressional action, provide
security assistance to the Government of the Philippines to assist
in the modernization and enhancement of the capabilities of the
Armed Forces of the Philippines and to support appropriate eco-
nomic programs.
Article VIII
Administration of the Areas of Cooperation
Each Government shall designate an executive agency which
shall be responsible for the overall coordination of its participation
in the areas of cooperation; for the Government of the RepubUc of
the Philippines, this agency will be the Department of Foreign
T H E F O U R T H F U N D E M A N T A L RIOHT: 336
THE RIOHT OF PROPERTY A N D JURISDICTION
Affairs, and for the Government of the United States, this agency
will be the Department of State. These executive agencies will
work together closely with the appropriate national agencies in
carrying out the various programs of cooperation.
Article IX
Program Review Group
The Government of the Republic of the Philippines and the
Government of the United StateB of America will form a high-level
Philippine-American Program Review Group to review and discuss
matters of concern to either party with respect to security assist-
ance and economic assistance provided by the United States to the
Philippines, including Public Law 480 assistance, or to the provision
of excess defense articles and excess medical equipment. Such
matters may include the structuring of such assistance, within the
relevant legal and programmatic framework, in order to comple-
ment Philippine Government objectives with respect to economic
growth and development and armed forces modernization and its
efforts to undertake voluntary, market-oriented debt reduction
programs. Further, such matters may also include economic, trade,
and other issues, it being understood that other fora exist for the
discussion and resolution of certain specific economic and trade
issues. The Program Review Group may establish such rules and
procedures as it deems appropriate and will meet on an annual
basis, as mutually agreed.
Article X
Other Arrangements
Nothing in this Treaty shall be construed to prejudice exist-
ing arrangements between the two countries for economic, scien-
tific, technological, cultural, educational, health, Filipino veterans'
issues, and defense and security cooperation. Specific provisions
for the continued effectivity of certain arrangements are made in
Articles V and V I I of Supplementary Agreement Number One,
Article XI of Supplementary Agreement Number Two, and Article
XVII of Supplementary Agreement Number Three.
Article XI
Entry Into Force and Duration
1. This Agreement shall be ratified by the Government of

the Philippines and otherwise accepted by the Government of the
United States in accordance with their respective constitutional

processes and shall enter into force on the date on which the
instruments of ratification or acceptance have been exchanged by
them in Manila. This agreement shall remain in force for ten (10)
years.
2. The Supplementary Agreements shall enter into force,
remain in force and be terminable in accordance with their re-
spective terms.
IN W I T N E S S WHEREOF the undersigned, being duly au-
thorized by their respective Governments, have signed this Treaty.
DONE in Manila, this twenty-seventh day of August, 1991,
in duplicate, in the English language. The Parties shall subse-
quently exchange diplomatic notes establishing the text in the
Filipino language. The Filipino and English texts shall be equally
authenticated.
Raul Manglapus
For the Government of the Republic of the Philippines
Frank Wisner II
For the Government of the United States of America
MUTUAL DEFENSE TREATY
On March 14, 1947, the Republic of the Philippines and the

United States entered into the Military Bases Agreement, wherein
the former granted to the U.S. the 'right to retain the use, free of
rent, of 23 military bases within its territory' for their 'mutual
protection' and the 'maintenance of peace in the Pacific' The treaty
was to be in force for a period of 99 years, subject to extension
thereafter as agreed [upon] by the two governments. (1 D.F.A.
Treaty Series 144; 43 UN Treaty Series, 271).
On March 21, 1947, the Military Assistance Agreement was

signed. The principal considerations taken in concluding the said
agreement were to promote the mutual interest in common defense
of the two countries and the eventual grant by the U.S. of defense
equipment, supplies, services, and training to Philippine defense forces
in response to the Philippine request for military assistance.
On Aug. 30, 1951, the Mutual Defense Treaty ( M D T ) was
signed to strengthen the Philippines' and the United States' ef-
forts for collective defense against external armed attack, pending

the development of a more comprehensive system of regional se-
curity in the Pacific area.
Recall that the Philippine Senate rejected on Sept. 21, 1991,
the proposed RP-US Treaty of Friendship, Cooperation, and Se-
curity — as a replacement of the 1947 RP-US Military Bases
Agreement.
What are the legal bases for this rejection? At least three (3)
provisions of the Philippine Constitution of 1987 provide the an-
swer:
First, Art. I I , Sec. 8 emphasizes for the Philippines an inde-
pendent foreign policy, national sovereignty, territorial integrity,
national interest, and the right of self-determination.
Second, Art. I I , Sec. 7 provides that the Philippines may
pursue a policy of freedom from nuclear weapons in its territory.
(Please note that a military base maintained by a superpower
without weapons is practically useless.)
Third, Art. VIII, Sec. 25 states that after 1991, the establish-
ment of foreign military bases, troops or facilities on Philippine
territories will be allowed only under a treaty duly concurred in by
the same Senate and a ratification by the people in a referendum
should Congress require it.
Under the MDT, what is the extent of commitment in case of
external aggression against the Philippines? Answer: The retali-
ation is not automatic. Accordingly, the U.S. is to "act to meet the
common dangers in accordance with its constitutional processes,"
and which "can be interpreted to mean any military action that
might involve the U.S. Congress, the body that can declare war."
To be more specific, however, the question runs this way: In case
of an attack on a claimed Philippine territory in the South China
Sea, like the disputed Spratly Islands, will the U.S. come to the
defense of the Philippines?
According to Philippine Foreign Affairs Secretary Roberto

Romulo, "the U.S. will come to the aid of the Philippines if its
soldiers or ships in the Spratly islands in the South China Sea
come under attack." (Manila Bulletin, "U.S. to Defend R.P. —
Romulo," Nov. 17, 1992, p. 1). Testifying before the Foreign AITairs
Committee of the Commission on Appointments, Sec. Romulo based
his view on a 1979 memorandum of then U.S. Secretary of State
INTERNATIONAL LAW A N D WORLD P O U T I C S
Cyrus Vance. ThuB, in the Jan. 6, 1979 letter of Vance to then

Philippine Foreign Affairs Secretary Carlos P. Romulo (father of
the incumbent foreign affairs secretary), stated inter alia was
Vance's reaffirmation of the U.S. government's obligation under
Article IV of the MDT. The proviso reads: "Each party recognizes
that an armed attack in the Pacific Area on either of the parties
would be dangerouB to its own peace and safety and declares that
it would act to meet the common danger in accordance with its
own constitutional processes." ( I I Phil. T.S., p. 729).
Under Art. V of the MDT, an "armed attack" is denned as "an

armed attack on the metropolitan territory of either of the Parties,
or on the island territories under its jurisdiction in the Pacific
Ocean, its armed forces, public vessels or aircraft in the Pacific."
In his letter of 1979, Sec. Vance elaborated on the meaning
of "metropolitan territory" as all of the land areas and all adjacent
waters subject to the sovereignty of the Republic of the Philip-
pines, lying within the area delineated by Spain and the U.S. in
the 1898 Treaty of Paris and in the 1898 Treaty of Washington
which was amended in the U.S.-U.K. Treaty of 1930. Significantly,
this definition delimits the scope of responsibility of the U.S. in
case of an armed attack on Philippine territory.
Apropos to the "constitutional processes" adverted to it in the
MDT, Sec. Vance's letter stressed that "it serves to make clear
that the Treaty could not, and was not intended to, alter those
processes for either party. Neither is the War Powers Resolution,
that expanded the U.S. President's powers to assist other coun-
tries at war, intended to alter the constitutional authority of the
Congress or of the President, or the provisions of existing treaties."
For one, the U.S. Constitution requires that the Senate approves
any declaration of war.
In light of the Philippine claim to Spratlys, it is incumbent
for the two government's "to arrive at a joint declaration present-
ing in unmistakable terms their definitions of mutual defense."
(See Manila Bulletin, 'Editorial' re "U.S.-R.P. Mutual Defense
Treaty Requires Clarification," Nov. 17, 1992, p. 10).
Be this at it may, the turnover rites of the Subic Naval Base,
the last of the military bases to be pulled out of Philippine shores,
produced remarks that dramatized the new R.P.-U.S. relationship:
From Subic Bay Metropolitan Authority head Richard J.
Gordon: "[MJovfing] from [a] military base to a regime of free port.
T H E FOURTH F U N D E M A N T A L RIGHT: 330
[the Philippine has] a vision in Subic. [There is] the legal infra-
structure: Republic Act 7227, which provides for a free port, tax
incentives, [and] export processing zone."
From then U.S. Ambassador to the Philippine Richard M.
Solomon: "Since 1951, the U.S.-R.P. Mutual Defense Treaty ( M D T )
has contributed to stability in [the Asia Pacific) region. The MDT
remains in force, and it continues to provide an appropriate frame-
work for future defense cooperation between our countries, as the
Mutual Defense Board meeting reaffirmed [in November 1992].
The joint statement issued at the end of that meeting foresees
sustaining various forms of cooperation between the armed forces
of the Philippines and the U.S."
From Philippine President Fidel V. Ramos: "Our two coun-

tries must now fashion a new framework for their relationship in
keeping with the geopolitical realities prevailing in their common
areas of concern and interest. As one contemplates the picture of
Philippine-American affairs, two massive and compelling facts
instantly obtrude in one's mind: first, the U.S. market remains our
biggest and most profitable. And second, the U.S. remains the
undisputed leader of the free world, at a time when the Philip-
pines' export trade uninterruptedly enjoyed a whopping trade
surplus with the U.S., which registered at $1.2 billion in 1992.
Upon the other hand, it should be pointed out that the Mutual
Defense Treaty, which lies at the core of the security arrange-
ments between the Philippines and the U.S., cries for a new, bracing
breath of life. Framed and adopted at the height of the Cold War,
when American and Free World strategy was based on the idea of
surrounding the Soviet empire with bases of military and eco-
nomic strength, the Mutual Defense Treaty has now to be
reexamined in the context of the post-Cold War era. Its concept,
its thrust, and its scope have to be attuned to the realities of a
world tormented by new conflicts and rivalries and faced with new
trials and challenges."
THE MUTUAL DEFENSE BOARD

The Mutual Defense Board is an agency that has been cre-
ated because of the Philippine-United States Mutual Defense
Treaty. It is, thus, an agency of B O T H the Philippine and United
States Governments. Its findings would be CONCLUSIVE in our
courts of justice. (Donald Boer, Commander of the U.S. Naval Base,
Subic Bay v. Hon. Tito V. Tizon and Edgardo Gener, L-24294, July
IS, 1974).
In an opening speech made at the 35th meeting of the R.P.-
U.S. Mutual Defense Board, the firBt since the departure of the
Americans from Subic and Clark, a new note for the future was
struck by a statement made by Admiral Charles Larson, com-
mander-in-chief of the U.S. Pacific Forces: "We are on the
threshhold of a new era here... that is going to be characterized by
economic opportunity more than military concerns."
While both sides stressed the need to forge a new security

alliance in light of the contemporary situation in the Pacific, their
motivation was once directed towards enhancing world trade and
protecting the investments of the United States in this part of the
world. Hence, while the game-plan calls for a comprehensive sys-
tem of regional security in the Pacific area, the objective is really
economic, since "the well-being and security of our people will be
closely tied to the progress of our economies." Without being naive
or simplistic, we must stress the reality that the Philippines at
present is not so much in danger from an external enemy but from
its internal divisions and its failure thus far to provide a modicum
of comfort and well-being for its numerous citizens by failure to
enhance the quality of life. Priority, therefore, should be on secu-
rity not built on arms but on economic prosperity; the consequence
of this is that in budgetary allocation, infrastructure and rural
development are more important than military build-up, even the
modernization of our armed forces. Inevitably, the latter has to
take second priority to economic modernization. For any talk of
external security will be useless as long as the internal security of
the country in the long run is not stabilized by guns and military
material but by contended and prosperous human beings who see
the futility of war and the threat it poses to their economic well-
being. In this task of security build-up both internal and external,
Filipinos value the long-standing friendly relations between the
two countries. Although the bases have been phased out, R.P.-U.S.
Mutual Defense Board meetings will continue on this new ar-
rangement. In the same way that in the past, the United States
of America has always been a friend to the Philippines especially
in times of need, she will continue to cooperate with the Philip-
pines on the basis of a continuing partnership among equals. (See
Manila Bulletin, "Editorial: Butter, Not Guns — RP-USA Mutual
Defense Board Talks Stress Economic Opportunity More than
Military Concerns," June 5, 1993, p. 10).
Indeed, the Philippine-American Mutual Defense Board (MDB)

led ofT on the right foot for the most part at its first post-bases
meeting here in Manila on June 3, 1993. The announced new
objective is to help preserve democracy and protect the booming
economies of Asia. Fully endorsed, this iB the aim so as to
strengthen democracy all over the world. But we suggest that the
new security scheme be geared to promote global economy, instead
of just Asiatic, particularly of the less developed nations. None*
theless, there was an unfortunate detail in the wire-service account
of the first MDB session. The story says the alliance, among others,
would protect "an estimated $310 billion in U.S. trade and $62
billion in U.S. investments in the region. We are inclined to believe
the U.S. panel had not publicly espoused that particular objective
although it is taken for granted that any panel has the primary
duty to promote its own national interest. From what we know of
America's post-Cold-War policy, Washington now seeks a level
playing field for all countries. Competition is the game in a desirable
free market of the world. We submit that this same global vision
should guide the MDB in its future deliberations. (Philippine Star,
"Editorial: Promote Global Economy," June 5, 1993, p. 8).
Be it remembered that the R.P-U.S. relations plummeted after

the rejection by the Philippine Senate of the proposed R.P-U.S.
Treaty of Friendship, Cooperation, and Security in 1991. Accord-
ing to President Fidel V. Ramos, "We continue to have a mutual
defense treaty of 1951, the R.P-U.S.. defense board continues, and
the military exercises between the two countries are being planned;
the council of ministers under the Mutual Defense Treaty continues
to operate." (See Ely Amoroso, "FVR Wants to Re-Define Fil-
American Relations," Philippine Times Journal, May 28, 1993, p.
1).
In the post-Cold War era, Ramos said, it is no longer military
build-ups or MILITARY ALLIANCES that are important but
economic cooperation. Said he: "It is for this reason that there is
momentum for economic cooperative understanding in all ASEAN
and Pacific regional countries."
But this is not to say that military alliance have diminished
in importance. History tells us of the importance of an "alliance"
as a practice of statecraft. An alliance represents a primitive form
of community in which States band together for a limited period
to jointly pursue objectives they feel they cannot successfully obtain
acting alone.
The term "alliance'' iB invariably interchanged with the words

"coalition," "pact," and "bloc." Coalitions mainly have diplomatic
and economic characteristics. Alliances, however, have military
characteristics, i.e., signifying a promise of mutual military assist-
ance between two or more sovereign States especially on national
security issues. One country, for instance, may give the other
permission to deploy forces on its territory. Thus, when a country
promises military assistance without receiving a similar promise
in return, it is customary to speak of a guarantee pact. Here, the
guarantor may enter into such a pact when an enemy takeover of
another, usually a weak country, would strike a blow at the
guarantor's security.
Owing to the fact that the decision to participate in an alli-

ance is made by sovereign and independent nations, two (2) closely-
related questions about the motives of decision makers as they
contemplate alliance policies are in the offing: (1) Why do nations
choose to undertake or shun alliance commitments?; and (2) When
faced with alternatives, why do nations elect to join a particular
coalition in preference to others? The answer to these questions
date back to the so-called "balance of power" or "equilibrium" theo-
ries, in which the emphasis is almost exclusively on the interna-
tional system. The motives for alignment and for the particular
coalition of States derive largely from the structure, distribution of
power, and the State of relations among nations in the interna-
tional system. Alliances, therefore, are formed as a matter of ex-
pediency. Nations join forces in order to aggregate sufficient ca-
pabilities to achieve certain foreign policy goals or to create a
geographically advantageous position. One of the most important
motives for alliance formation is to prevent any nation or combi-
nation of countries from achieving a dominant position.
Accordingly, perceived imbalances in the distribution of in-

ternational power will give rise to alliance formation. Be it noted
that external threat, rather than national strength or weakeness,
is the primary source of alliances. For example. Quadruple Alli-
ance — Great Britain, Austria, Prussia and Russia — which de-
feated Napoleon in 1814-1815, ending French hegemony over
Europe and the World War II alliance led by the U.S., the Soviet
Union, and Great Britain which defeated German and Japanese
attempts to establish domination over Europe and Asia, respec-
tively. Balance of power approaches thus locate the motivations
for alliance formation primarily in the attributes of the interna-
tional system and the situation — the distribution of power, threats
T H E RIGHT O F P R O P E R T Y A N D JURISDICTION
to the balance of power, and the like. Conversely, they tend to

deny that alliance policies are significantly affected by national
characteristics; democratic arid autocratic nations use alliances as
instruments of statecraft, as do large and small ones, rich and
poor ones. Alliance partners, moreover, are said to be chosen on
the basis of common need, not for reasons of shared values, insti-
tutions, or a sense of community. Thus, aside from those provided
by the coalition of the Napoleonic War and World War I I , the
Nazi-Soviet Pact of 1939 is often cited to illustrate the point that
the well-spring of any given alliance is the calculus of interest
rather than sentiments of community. Of course, nations often
avoide alliances by resorting to "neutralism" or being "neutral" or
"non-aligned," although not necessarily with respect to contempo-
rary "cold war" conflicts. Following the Berlin crisis in 1946, the
Cold War between the U.S., representing the capitalist camp, and
the then Soviet Union (now a loose Commonwealth of Independent
States [CIS], representing the socialist camp, affected every coun-
try in the world. It is said that present-day reality makes the CIS
doubly dangerous with each Soviet republic in possession of nu-
clear armaments.
Soviet moves in Eastern Europe, Iran, and Turkey; Soviet

assistance to the communist partisans in the Greek civil war; the
1948 communist coup in Czechoslovakia; the fall of China into
communist hands in 1949; and the North Korean invasion of South
Korea in June 1950, all served to convince the West that there
was a communist monolith headquartered in Moscow. The West,
primarily the U.S., energetically responded to these developments.
U.S. economic aid was poured into Greece and Turkey and thru
the Marshall Plan, into Western Europe to rebuild said States as
bulwarks against communism. Later, the U.S. took the lead in
creating a collection of military alliances designed to "contain"
Soviet expansionist tendencies; the North Atlantic Treaty Organi-
zation ( N A T O ) , the then Southeast Asia Treaty Organizaton
( S E A T O ) , the Central Treaty Organization (CENTRO). Bilateral
defensive pacts between the U.S. and numerous other noncom-
munist States were also signed during the 1950s.
Upon the other hand, Soviet Union and Eastern Europe made
their communist bloc thru the now-defunct Warsaw Pact in order
to respond to the non-communist bloc. Communist superpowers,
Soviet Union and China, and communist States also signed bilat-
eral defensive pacts in order to respond to the non-communist
States. At any rate, political stability is sometimes associated with
a prosperity to join an alliance, and instability has been an im-

petus to go beyond non-alignment and pursue a policy of militant
neutralism. Alliances have been variously praised and condemned
for their effects on the community of nations and on the world.
While an important goal of balance of power systems is to prevent
the rise of a dominant nation or group of nations, it iB (unfortunate
that the United States of America has emerged as the only super-
power in its quest for a "new world order." (E.C. Paras, Jr., "Military
Alliances," Business Star, Feb. 21, 1992, p. 4).
^ / PERSONAL JURISDICTION
Personal jurisdiction is the jurisdiction of a State over its
nationals in a foreign country. In the broader sense of the term,
it includes jurisdiction over the resident citizens. The term "na-
tionals" is almost synonymous to the term "alien" but from a
different viewpoint. Thus, Filipino "nationals" in China are con-
sidered "aliens" there; upon the other hand, Chinese "nationals" in
the Philippines are invariably referred to as "aliens" in our country.
Hence, a discussion of jurisdiction over "nationals" necessarily
includes a discussion of jurisdiction over "aliens." We shall divide
our discussion of "aliens" into three phases:
(a) their status BEFORE they came to the Philippines;

(b) their status W H I L E HERE in the Philippines;
(c) their exit (voluntary or by force) from the Philip-
pines.
STATUS BEFORE ENTRY INTO THE PHILIPPINES

Theoretically, every sovereign nation such as the Philippines
has the right, in the absence of any treaty, to exclude any for-
eigner from entry into our country. But just as "no man is an
island, sufficient unto himself," so also is no State a solitary ar-
chipelago that can afford to exist by itself bereft of the social
intercourse and commercial amenities that are given by an "open-
door policy." Hence, Philippine laws allow the entry of aliens, subject
to certain unavoidable restrictions. Generally, aliens who cannot
become naturalized Filipino citizens are refused entry." The
Secretary of Foreign Affairs is not authorized to admit into the
" S e e Commonwealth Act No. 613. Sec. 29 (a).

Philippines aliens, or to extend the period authorized by the Com-

missioner of Immigration and Deportation, for their stay in the
Philippines. This is because under Sec. 3 of Com. Act No. 613,
which governs the entry of aliens into this country, it is the
Commissioner of Immigration and Deportation who is in charge
of all laws relating to the immigration of aliens — and it is only
when public interest so warrants that the President of the Phil-
ippines may admit as non-immigrants, aliens, not otherwise pro-
vided for by said Act, who desire to come for a temporary stay, and
under such limitations and conditions which he may deem proper
46
to prescribe.
STATUS OF THE ALIEN WHILE IN THE PHILIPPINES

While in the Philippines, an alien is entitled to certain civil
rights, such as protection of their life, liberty, and property (People
v. Chan Fook, 42 Phil. 230), and free access to the courts (Chinese
Flour Importers Association v. Price Stabilization Board, 89 Phil.
439), but not political rights. Hence, he cannot vote in elections; he
cannot run for public office; he cannot even intervene in the conduct
of elections, otherwise he may be held criminally liable therefor.
He is excluded from the practice of certain professions: thus, without
special permission from the Supreme Court, he may not practice
47
law in the country, he cannot practice medicine," nor engage in
49
coastwise shipping.
Under a 1967 law, no person shall be allowed to practice any

profession in the Philippines unless he has complied with the
existing laws and regulations, is a permanent resident therein for
at least three years, and if he is an alien, the country of which he
is a subject or citizen permits Filipinos to practice their respective
professions within its territories. This Act shall not apply, how-
ever, to a profession which is limited by law to Filipino citizens.
The Act also provides that Filipinos who became United States
nationals by reason of service in the Armed Forces of the United
StateB during the Second World War, and aliens who had been
admitted into the practice of their profession before July 4, 1946
shall be exempt from the restrictions provided for in the law.
"Ang Liong u. Com. of Immigration, L-12231, Dec. 29, 1959.

" S e e Rule 138, Sec. 2, RUUB of Court.
"Sec. 767, Reu. Adm Coda.
"Sec. 1172, Rev. Adm. Code.
INTRANATIONAL L A W A N D WORLD POLITICS
The alien owes a measure of allegiance to the Philippines and

our Constitution, in return for the protection granted him by our
laws; this allegiance, while he stays in the country, is referred to
M
as a temporary or qualified allegiance. Under Art. 114 of the
Revised Penal Code, he may even be liable for treason against the
Philippines. Generally, he ought to be able to exhibit his certifi-
cate of registration. If he fails to do so, however, the fiscal (now
called a "prosecutor," under the Administrative Code) cannot initiate
his prosecution. In the caBe. of Yao Lit v. Geraldez, et al., L-13428,
Nov. 27, 1959, the Supreme Court had occasion to rule that under
Sec. 3 of Rep. Act No. 751, amending Sec. 7 of Rep. Act No. 562,
the prosecuting fiscal may not initiate the prosecution of an alien
who fails to exhibit his certificate of registration when demanded
by any immigration official or member of the then Philippine
Constabulary, or police or other peace officer [collectively known
today as the Philippine National Police] U N T I L A N D U N L E S S
the Commissioner of Immigration and Deportation has elected or
decided upon said prosecution instead of resorting to an admin-
istrative charge and fine.
A domiciled alien, as distinguished from a transient alien,

may be held accountable for taxes; may be asked to serve in the
militia forces (i.e., a part of the organized armed forces of a coun-
try liable to call only in an emergency); may lease but not acquire
51
lands except thru hereditary succession.
An alien is entitled to the so-called "rrationaLtreatment" (equal
rights given to nationals and aliens in certain matters); but if the
"national treatment" iB below the "international standard of jus-
tice" (in some countries, even nationals are not given due process
of law), he is entitled to receive the latter. The "international
standard of justice" is that which reasonable men in civilized States
would ordinarily accord an individual to the end that he will not
be deprived of life, liberty, or property without due process of
law." Indeed it has been said that "the treatment of an alien,
in order to constitute an international delinquency, should amount
to an outrage, to bad faith, to willful neglect or duty, or to an
insufficiency of governmental action so far short of international
standards that every reasonable and impartial man would readily
*°See Fen wick, International Lnw, p. 271.

"Kriuenko v. Register of Deed*. 44 O.G. 471.
M
S e e Brierly, 7"Ae Law of Nations, p. 207.
THE FOURTH FUNDEHANTAL RIGHT: 347
63
recognize its insufficiency." Be it observed, however, that an al-
ien who illegally stayB in the Philippines, has no right to be granted
asylum. And this is true even if he is Stateless. (Mejoff v. Director
of Prisons, 90 Phil 70). Upon the other hand, however, an alien
may question the constitutionality of a law or even of a court order
if the same is prejudicial to him. (Dee C. Chuan v. CIR, 85 Phil.
431).
Palting v. San Jose Petroleum, Inc.

L-14441, Dec 17, 1966
FACTS: A Panamanian Corporation, alleged to be owned
and controlled by American citizen's, sought permission to
help. Finance a Philippine Mining Corporation. American
control was not proved. Issue: May the Corporation help in
the exploitation of our natural resources?
HELD: No. Firstly, no proof was presented that the
Panamanian Corporation was really American owned and
controlled. Secondly, assuming that indeed, it was American
owned and controlled, still it is necessary to establish that the
different states (in the U.S.) of which the stockholders are
citizens, allow Filipino citizens or corporations or associa-
tions owned or controlled by Filipino citizens, to engage in
the exploitation, etc. of the natural resources of those states.
In other words, to avail of "parity rights," there must be
RECIPROCAL P A R I T Y .
Philippine Banking; Corporation, representing

the Estate of Justina Santos y Canon Faustino v.
Lui She, administratrix of the Intestate
Estate of W o n g Hong L-17587, Sept. 12, 1967
FACTS: Justina Santos, an aged Filipino woman leased

to Wong, a Chinese citizen, a parcel of land on Rizal Avenue,
Manila for a period of fifty (50) years, and also provided the
latter an option to purchase the same (within said period of
50 years), payable in 10 years, on the condition that Wong
would become a Filipino. Justina died. Wong also died without
becoming a Filipino. Justine's administrator, the Philippine
"Opinion of the Commissioner in the Neers Case, American-MeKican Claim

CommisBiDn, p. 73.
Banking Corporation, now sues Wong's estate and the surviving

spouse (administratrix of her husband's estate) for the recovery
of the land. It was alleged that no recovery should be allowed —
firstly, because the contract was validly entered into, and sec-
ondly, assuming the nullity of the same, Justina's administrator
should not be allowed to recover on the theory that Justina
herself was a party to the transaction.
ISSUES:
(a) Is the contract valid? Reasons.
(b) May justina's administrator recover the land?
Reasons.
HELD: (a) While generally the contract should have
been valid, still there appears to be a deliberate plan to cir-
cumvent the Constitution. The lease of land for 50 years in
favor of an alien is rather long (virtually depriving the lessor-
owner of jits utendi,jus possedendi, jus abutendi for 50 years);
the option to buy within the same period of 50 yeare likewise
deprives the lessor-owner of jus disponendi for a like period.
Since all together these rights constitute the very essence of
ownership, the contract practically made the lessee the
OWNER, contrary to the intent of the Constitution. Paren-
thetically, the statement in the Smith Bell case, that a lease
of land for 99 years in favor of an alien was a mere obiter
dictum, premised on the provision in the Civil Code that a
lease for 99 years is valid. It is obiter because in said Smith
Ben case, the lease contract was only for 25 years, renewable
for another period of 25 years. Thus, the Court did not then
squarely determine the effect of a long lease of land in favor
of an alien.
(b) Justina's administrator will be allowed to recover

the land, notwithstanding the fact that Justina was herself a
party to the illegal transaction. The pari-delicto (mutual guilt)
rule to the effect that a party to an illegal transaction cannot
get back what had previously been given, should in the present
case be relaxed or modified because of the following reasons:
1) firstly, Justina, the guilty party is already
dead, and it is doubtful as to whether her heirs or the
administrator of the estate can also be put under a cloud
of guilt;
2) secondly, under Art. 1417 of the Civil Code,

the pari delicto rule cannot apply, if the law is for the
protection of the person seeking recovery and if, by al-
lowing recovery, public policy will be enhanced; and
3) thirdly, because if recovery will not be al-
lowed, the alien will continue having the property (in
view of the government's failure in very many cases to
file the necessary escheat proceedings so that the land
concerned can become government property). This con-
tinued ownership by a disqualified alien can only result
in a continuing violation of the Constitution.
A n t o n i o J. V i l l e g a s v. C l a u d i o T e e h a n k e e
L-27928, Jan. 18, 1967
FACTS: Because of a decision (Civil Case No. 57417, of
the Manila CFI — "Philippine Packing Corporation v. Hon.
Teofilo Reyes, et al") rendered by Judge Jarencio of the Ma-
nila Court of First Instance, Mayor Villegas of Manila de-
cided to deny permits for American citizens and American-
owned (wholly owned) corporations to engage in retail trade.
Whereupon, a presidential directive (Directive issued by Jose
J. Leido, Jr., as Assistant Executive Secretary, by authority of
the President), dated Dec. 31, 1966, was issued to the effect
thai until, the issues raised by the Jarencio decision shall
have been resolved by the Supreme Court, "all departments,
offices, and instrumentalities under the Executive Depart-
ment, both national and local," shall act in conformity with
the opinion, held by the Department of Justice, that American
citizens and juridical entities wholly owned by them are ex-
empt from the operation of Republic Act No. 1180, commonly
known as the Nationalization (or Filipinization) of the Retail
Trade Act. This opinion of the Department of Justice was
principally based on Art. V I I , paragraph (1) of the Laurel-
Langley Agreement (the Philippine Trade Agreement of 1955)
(the entering into this Agreement was authorized under R.A.
No. 1355), which apparently exempts said American citizens
and entities from the prohibition under the Retail Trade Act
(Rep. Act No. 1130). Said Article V I I of the Trade Agreement
provides:
"The Republic of the Philippines and the United

States of America each agrees not to discriminate in any
INTERNATIONAL L A W A N D WOXLD POLITICS
manner, with respect to their engaging in business ac-

tivities, against the citizens or any form of business
enterprise owned or controlled by citizens of the other,
and that new limitations imposed by either Party upon
the extent to which aliens are accorded national treat-
ment. (National treatment is the treatment given to the
nationals themselves of a country; hence when aliens are
accorded national treatment, they, in effect, are treated
in the same way as the country's own nationals are
treated.). This is with respect to carrying on business
activities within its territories and which shall not be
applied as against enterprises owned or controlled by
citizens of the other Party engaged in such activities
therein at the time such new limitations are adopted,
nor shall such new limitations be applied to American
citizens or corporations or associations owned or control-
led by American citizens whose States do not impose
like limitations on citizens or corporations or associa-
tions owned or controlled by the citizens of the Republic
of the Philippines.
Mayor Villegas then filed an original suit (Antonio

J. Villegas v. Claudio Teehankee, L-27928, Jan. 18, 1967)
in the Supreme Court, questioning the validity of the
Presidential directive.
RULING: The Court refused to rule on the question as
to whether or not American citizens and corporations are
allowed to engage in retail trade in the Philippines. (The
refusal was proper because to do so would amount to a de-
claratory judgment, which is admittedly beyond the original
exclusive jurisdiction of the Court, and would in effect fore-
close a similar adjudication of said issue in about twenty
cases then pending in courts of first instance Inow regional
trial courts]. Moreover, Mayor Villegas failed to show, even
prima facie, that the view of the Department of Justice as an
alter ego of the Executive Branch of the Government, is con-
trary to law, much less nullhnd void.) However, on the issue
as to whether or not Mayor Villegas has to comply in the
meantime with the directive, the Court categorically answered
in the affirmative, stating that Republic Act Nos. 1180 (the
Retail Trade L a w ) and 1355 (the Law authorizing the Presi-
dent to enter into the Laurel-Langley Agreement) and said
Trade Agreement itself "involve national policies, the en-
force-merit of which is one of the main duties imposed by the

Constitution upon the President, whose decisions, views, or
opinions thereon — unless and until voided or modified by
final judgment of a competent court in appropriate cases —
should prevail over those of local executive officials, such as
the petitioner herein, as Mayor of the City of Manila, and are
binding upon the latter."
THE FOREIGN INVESTOR AND THE PETROCHEM CASE

A recent controversial case decided by the Philippine Supreme
Court is Rep. Garcia v. BOl, DTI, Luzon Petrochemical Corp., &
Pilipinas Shell Corp. (G.R. No. 92024, Nov. 9, 1990; M.R. denied,
Dec. 11, 1990).
The debates center on whatever or not the Highest Tribunal
was justified in disregarding the alleged express desire of the
Taiwanese investors to establish the Luzon Petrochemical Plant in
Batangae and not in Bataan.
Associate Justice Hugo E. Gutierez, Jr., speaking for the
Supreme Court, en banc, held: "We rule that the Court has a con-
stitutional duty duty to step into this controversy and determine
the paramount issue. We grant the petition.
"First, Bataan was the original choice as the plant site of the
BOI to which the BPC agreed. That is why it organized itself into
a corporation bearing the name Bataan. The respondents have not
shown nor reiterated that the alleged peace and order situation in
Bataan or unstable labor situation warrant a transfer of the plant
site to Batangas. Certainly, these were taken into account when
the firm named itself Bataan Petrochemical Corporation. Moreo-
ver, the evidence proves the contrary.
"Second, the BRC, a government-owned Filipino corporation
located in Bataan, produces 60% of the national output of naphtha
which can be used as feedstock for the plant in Bataan. Upon the
other hand, the country is short of L P G and there is need to
import the same for use of the plant in Batangas. The local pro-
duction thereof by Shell can hardly supply the needs of the con-
sumers for cooking purposes. Scarce dollars will be diverted, un-
necessarily, from vitally essential projects in order to feed the
furnaces of the transferred petrochemical plant.
"Third, naphtha as feedstock has been exempted by law from
the ad valorem tax by the approval of Republic Act No. 6767 by
President Corazon C. Aquino but excluding LPG from exemption

from ad valorem tax. The law was enacted specifically for the
petrochemical industry. Neither BOI nor a foreign investor should
disregard or contravene expressed policy by shifting the feedstock
from naphtha to LPG.
"Fourth, under Sec. 10, Art. X I I of the 1987 Philippine
Constitution, it is the duty of the State to regulate and exercise
authority over foreign investments within its national jurisdiction
and in accordance with its national goals and priorities. The devel-
opment of a self-reliant and independent national economy effec-
tively controlled by Filipinos is mandated in Sec. 19, Art. II of the
Constitution. In Art. 2 of the Omnibus Investments Code of 1987,
'the sound development of the national economy in consonance
with the principles and objectives of economic nationalism,' is the
set goal of government.
"Fifth, with the admitted fact that the investor is raising the
greater portion of the capital for the project from local sources by
way of a loan which led to the so-called 'petroscam scandal,' the
capital requirements would be greatly minimized if L P G does not
have to buy the land for the project and its feedstock shall be
limited to naphtha which is certainly more economical, more read-
ily available than LPG, and does not have to be imported.
"Sixth, if the plant site is maintained in Bataan, the PNOC
shall be a partner in the venture to the great benefit and advan-
tage of the government which shall have a participation in the
management of the project instead of a firm which is a huge mul-
tinational corporation.
"In light of all the clear advantages manifest in the
plant's remaining in Bataan, practically nothing is shown to
justify the transfer to Bataan except a near-absolute discretion
given by BOI to investors not only to freely choose the site
but to transfer it from their own first choice for reasons which
remain murky to say the least.
"In this particular BPC venture, not only has the Gov-
ernment given unprecedented favors, among them: (1) for an
initial authorized capital of only P20 million, the Central Bank
gave an eligible relending credit or relending facility worth
U.S.$50 million and a debt to swap arrangement for U.S.$30
million or a total accommodation of U.S.$80 million which at
current exchange rates iB around P2080 million; (2) tax ex-
THE FOURTH F U N D A M E N T A L RIOHT 353
emptions and privileges were given as part of its 'preferred

pioneer status'; (3) loan applications of other Philippine firms
will be crowded out of the Asian Development Bank portfolio
because of the petrochemical firm's massive loan request; and
(4) a major part of the company's capitalization shall not
come from foreign sources but from loans, initially a P I bil-
lion syndicated loan, to be given by both government banks
and a consortium of Philippine .private banks or in common
parlance, a case of guiniguisa sa sariling manteca. (fried in
our own lard) — but thru its regulatory agency, the BOI, it
surrenders even the power to make a company abide by its
initial choice, a choice free from any suspicion of unscrupu-
lous machination and a choice which is undoubtedly in the
best interests of the Filipino people."
NOTE:
Just a word or two about item no. 4 above. Obviously, many
so-called "investors" do not really bring in money; the money they
earn are brought out of the host country in the guise of "transfer
pricing." To borrow the lucid words of Rep. Enrique T. Garcia: "To
maximize foreign investments, there should be a provision (of the
law stating) that the funding of the total requirement of the busi-
ness, and not only of the equity, should be covered primarily and
mainly by the foreign exchange brought in by the foreign investor.
Unregulated foreign investments have merely exploited cheap
Filipino labor, feasted on Filipino natural resources, used and
abused domestic credit, extracted super-profits to the 'homeland'
thru various ways, including transfer pricing. Surely, this is almost
outright plunder. In the net exchange, the Philippines and the
Filipinos are the losers." Transfer pricing is a phenomenon pe-
culiar to multinational corporations, i.e., the means by which the
latter transcend the restrictions of political boundaries in order to
maximize profit not in terms of per country transactions, but of
total global operation. It is effected when MNCs buy from and sell
to their own subsidiaries at prices that may have little connection
with the market. These prices are called "transfer prices" and the
practice of setting prices on intra-company transfer to maximize
profits, transfer pricing.
By analogy, it can be said truly that a foreign corporation
"doing business" in our country has no property assets (in the
Philippines), probably, not even a bank account.
DOCTRINE OF STATE IMPUTABtLTTY

A State may be held liable for a denial of justice to an alien
if the following requisites are present:
(1) an act or omission in violation of international law;
(2) said act or omission must be imputable to the State
itself as a consequence of the direct acts of its responsible officials;
(3) there must be a direct or indirect injury to the offended
State; and
(4) the alien must first have exhausted all the remedies
available in the State, whether said remedies be administrative or
judicial.
A State may be held responsible for:
(a) Acts of State — such as acts by the Chief Execu-
54
tive and by the national legislature and even by the judicial
organs."
(b) Acts of high officials, within the scope of their au-
thority — for here the official is concerned with acts as an
66
organ of the State.
(c) Unauthorized acts of government officials if there
was subsequent ratification thereof."
(d) Even unauthorized acts of subordinates if said men
were at the time of commission under the supervision of supe-
58
riors, and the government fails to redress the wrong done.
Buron v. Denman
Great Britain, Court of Exchequer
1848, 2 Exchequer Div. 167
FACTS: A British naval commander without previous

government authority seized some slaves and certain goods
belonging to foreigners. Later, the act of seizure was ratified
**Fenwick, International Law, p. 280.

"Keleen, Principles of International Law, p. 119.
*See Brierly, The Law of Nations, p. 112.
"Buron v. Denman, Great Britain, Court of Exchequer. 1846, 2 Exchequer
Div. 167.
"Thomas Y. Youmans Case. Annual Digest, 1926-26, No. 162.
by the Secretaries of State or the Lords of the Admiralty. Is

the commander personally liable?
HELD: No, he iB not responsible in view of the ratifica-
tion, which makes his individual act "an Act of State" by
authority of the crown. A subsequent ratification of an act
done as agent is equal to a prior authority.
Thomas Y. Youmans Case

Annual Digest 1925-26, Case No. 162
FACTS: Because of a dispute over wages, a Mexican

mob waged an attack against three Americans in Michoacan,
Mexico. Unable to end the riot himself, the town mayor or-
dered a lieutenant of the State forces to quell the mob. In-
stead of dispersing the mob, the troops attacked the Ameri-
cans, who were then killed by both the soldiers and the mob.
Mexico did not take steps to apprehend and punish the guilty
persons involved. Is the Mexican government responsible for
the wrongful acts of the soldiers?
HELD: Yes, the Mexican government is liable even if
the soldiers acted in disobedience of rules laid down by the
superior authority, because they were then under the imme-
diate presence and supervision of a commanding superior.
Even if a State organ acts outside its competence, the State
itself may sometimes be held responsible. This is one of those
instances. Moreover, Mexico did not take proper Bteps to go
after the criminals.
L a u r a M. B. James Case
General Claims Commission, 1926
Case No. 158
FACTS: Eight years after an American citizen had been

killed in Mexico, the Mexican government had not yet appre-
hended the killer, on account of its inefficient and dilatory
authorities. Is Mexico liable?
HELD: Yes, Mexico iB liable for damages, not because
it condoned the criminal act by executive inaction, but be-
cause the State failed in its international duty to punish the
culprit resulting in the instant "denial of justice."
EXIT OF THE ALIENS FROM THE COUNTRY

The right to admit aliens carries with it the right to expel or
deport them. Sec. 37 (a) of Commonwealth Act No. 613 enumer-
ates the aliens subject to arrest and deportation. Thus an over-
staying alien may be ordered arrested. The arrest will, of course,
be regarded as constitutional. (Morano v. Vivo, 20 SCRA 562).
Generally aliens are considered undesirable if they pose a menace
to the peace and order of the community: deportation, however,
must fulfill the requisites of "due process of law" otherwise their
home-States as well as international commissions may consider
9
the expulsion of the aliens as unwarranted.'' As long as due
process is observed, there is no violation of the bill of rights. (Chuoco
v. Forbes, 228 U.S. 549, affirming.16 Phil. 534). Deportation as an
Act of State must comply with the recognized principles of public
international law. (On re McCullock Dick, 38 Phil. 41).
If the alien has already been criminally convicted, there is no

necessity of any administrative hearing; in case there has been no
criminal proceedings instituted, due process requires a hearing by
the administrative authorities. This task is usually assigned to
the Deportation Board (a body created to assist the President in
deportation matters).
If before the Deportation Board, the alien claims to be a

Filipino, and therefore, not subject to deportation, the Board may,
nevertheless, proceed with the case, if the proof presented in sup-
port of Philippine citizenship is flimsy. Be it noted that if the alleged
alien fails to established Philippine citizenship, he may, on proper
grounds be excluded or deported from the country. (Commissioner
of Immigration v. Garcia, L-28082, 57 SCRA 603) (1974); if upon
the other hand, the prima facie proof on such citizenship is clear,
the Deportation Board must suspend the hearing, and await the
judicial determination of nationality, otherwise, a writ of habeas
60
corpus or a writ of prohibition may be issued against the Board.
Seng Pao v. Commissioner of Immigration

L-14246, April 27, 1960
FACTS: An alien was ordered deported. However,
pending diplomatic negotiations with his country of origin, he
S9
S e e Fenwick, International Law. p. 269.
*°CAua Wong v. Deportation Board. L-6038, March 19. 1955.
was detained by Philippine authorities. The detention has

already lasted Tor eight years. May said alien now be re-
leased in a petition for the writ of habeas corpus?
HELD: No. Our government and our officers are not to
be blamed for the delay. Since we a r e not at fault (in view of
the refusal of his own home government to receive him), t h e
delay should not be considered as proper ground for declaring
the deportation as a functus officio (an order that has already
fulfilled the purpose of its creation and which, therefore, should
be considered no longer effective). Indeed, it should not be
left to the foreign country to render ineffective our warrants
of deportation simply by refusing or rejecting the diplomatic
efforts of our government to have the deporteeB sent back to
their country of origin.
QUERY
A Japanese woman came to the Philippines and was admit-
ted as a transient. It was found a few days later that her passport
was forged. Deportation proceeding were then started against her.
Ten days later, she married a Filipino. Could she still be subject
to deportation? Why?
ANSWER: Yes, the Japanese woman could still be the subject
of deportation proceedings, because mere marriage to the Filipino
did not automatically or necessarily make her a Filipino. It is
essential that she must possess all the qualifications and none of
the disqualifications for naturalization. It is clear that entry into
the Philippines on a forged passport disqualifies her for naturali-
61
zation. Having entered the Philippines as an alien transient, it
was incumbent for her to prove that she is not one of those dis-
qualified from being naturalized as a citizen under Sec. 4 of the
Revised Naturalization Law. Inasmuch therefore, as she is still a
82
Japanese, Bhe can be deported.
N O T E : In the Philippines, the right to deport or expel aliens
is vested in the President of the Philippines.
6 1
Sec Sec. 15, Com. Act No. 473.
*"Ly Giok Ha, el al. v. Galang. L-10760, May 17, 1957; Gua v. Republic,
L-1947, May 22, 1957.
Reconduction or Relocation
Reconduction or relocation is similar to deportation; it is the
process of conveying, by force if necessary, undesirable aliens to
the boundaries of a State. This is usually practised in Continental
Europe if the aliens concerned are not possessed of the proper
papers or if they have become destitute. The home-State to which
the aliens have been reconducted or relocated are duty-bound to
63
accept them.
JURISDICTION OF A STATE OVER ITS

NATIONALS ABROAD
The jurisdiction of a State over its nationals in other coun-
tries is part of the "personal jurisdiction" of a State: this is premised
on the fact that these nationals despite their stay abroad owe
allegiance to their home-State. This allegiance entitles them to
PROTECTION by the home-State. It would be unfair to impose
upon the home-State this responsibility for protection unless the
6 1
home-State is given A U T H O R I T Y over them. - " Thus, Filipinos
abroad are still subject to our tax laws, and insofar as their personal
status, capacity, and legal condition are concerned, they are still
governed by Philippine laws."
With reference to income earned abroad by nationals, a State

may impose lawful tax. To avoid the so-called "double taxation" of
an individual or corporation, the Philippines as well as their
governments like the United States have concluded numerous
agreements.
Double taxation means taxing twice for the same purpose in
the same year some of the property in the territory in which the
tax is laid without taxing all of it. Double taxation likewise refers
to the taxing of the item or piece of property twice to the same
person, or taxing it as the property of another. But this doe6 not
include the imposition of different taxes concurrently on the same
property, nor the taxation of the same piece of property to different
persons when they hold different interests in it or when it repre-
sents different values to their lands, as when the mortgagor and
s
S e e Oppenheim-Lauterpacht, International Law, Vol. 1, p. 634.
"•See Moore, A Digest of International Law, Vol I I , p. 255.
" A r t . 15. Civil Code.
mortgagee of property are taxed in respect to their interests in it,

or when a tax is laid upon the capital or property of a corporation
and also upon the value of its shares of stock in the hands of the
separate stockholders. (See Edgardo C. Paras, Jr., Economics for
Lawyers [1993], pp. 578-579; See also Artemio V. Panganiban,
"Legal Problems in International Trade Spawned by the A F T A . "
Paper read during the XVTth World Law Conference in Manila,
Oct. 27, 1993).
QUERY
May the Secretary of Foreign Affairs order the cancellation of
a passport where its holder is facing a criminal charge to compel
his return to the country without prior hearing?
ANSWER: Yes, the Secretary of Foreign Affairs may order
without prior hearing the cancellation of a passport where its holder
is facing a criminal charge to compel his return to the country. In
5
the case of Suntay y Aguinaldo v. People of the Philippines,* the
Supreme Court held that the Secretary of Foreign Affairs, in the
exercise of his discretion to revoke a passport already issued, can-
not be held to have acted whimsically or capriciously in withdrawing
and cancelling such passport. Due process does not necessarily
mean or require a hearing. When discretion is exercised by an
officer vested with it upon an undisputed fact (such as the filing
of a serious criminal charge against the passport holder), hearing
may be dispensed with by such officer as a prerequisite to the
cancellation of his passport. It should be noted that hearing would
have been proper and necessary if the reason for the withdrawal
or cancellation had not been clear but doubtful. On the matter of
whether the right to travel or to stay abroad is "personal liberty"
within the meaning and protection of the Constitution, of which a
person cannot be deprived without due process, the Court said
66
that there is Sec. 25, Exec. Order No. 1, series of 1946 prescribing
rules and regulations for the grant and issuance of passports,
slating that "The Secretary of Foreign Affairs as well as any
diplomatic or consular officer duly authorized by him, is author-
ized in his dicretion to refuse to issue a passport, to restrict a
passport for use only in certain countries, to withdraw or cancel a
5
* L-9430, June 29, 1967.
M
4 2 O.G. 1400.
passport for the purpose of restricting its validity or use in certain

countries."
Blackmer v. The United States

284 U.S. 421
FACTS: An American staying in Paris was served in
France with a subpoena requiring him to appear in a U.S.
Court as a witness in a certain litigation. The American did
not heed the subpoena. Issue: May he be adjudged guilty of
contempt of Court?
HELD: Yes, for U.S. processes properly served may bind
U.S. citizens abroad. They may be required to return to the
U.S. and failure to do so may result in punishment.
DIPLOMATIC PROTECTION OF NATIONALS AND

THE BARCELONA TRACTION CASE
The case concerning The Barcelona Traction, Light and Power

Company, Limited (Belgium v. Spain), Second Phase, decided by
the International Court of Justice (1970), I.C.J. 3, discussed, inter
alia, the theory of diplomatic protection.
Diplomatic protection deals with a very sensitive area of
international relations, since the interest of a foreign State in the
protection of its nationals confronts the rights of the territorial
sovereign, a fact of which the general law on the subject has had
to take cognizance of in order to prevent abuses and friction. From
its origins closely linked with international commerce, diplomatic
protection has sustained a particular impact from the growth of
international economic relations.
The claim is presented on behalf of natural and juristic

persons, alleged to be Belgian nationals and shareholders in the
Barcelona Traction, Light and Power Company, Limited. The
submissions of the Belgian Government make it clear that the
object of its Application is reparation for damage allegedly caused
to these persons by the conduct, said to be contrary to international
law, of various organs of the Spanish State toward that company
and various other companies in the same group. The States
principally concerned are Belgium, the national State of the alleged
shareholders, Spain, the State whose organs are alleged to have
committed the unlawful acts complain of, and Canada, the State
under whose laws Barcelona Traction was incorporated and on

whose territory it has its registered office.
When a State admits into its territory foreign investments or
foreign nationals, whether natural or juristic persons, it is bound
to extend to them the protection of the law and assumes obliga-
tions concerning the treatment to be afforded them. In seeking to
determine the law applicable, the Court has to bear in mind the
continuous evolution of international law. In allocating corporate
entities to States for purposes of diplomatic protection, interna-
tional law is based, but only to a limited extent, on an analogy
with the rules governing the nationality of individuals. The tradi-
tional rule attributes the right of diplomatic protection of a corpo-
rate entity to the State under the laws of which it is incorporated
and on whose territory it has its registered office. Only then, it has
been held, does there exist between the corporation and the State
in question a genuine connection of the kind familiar from other
branches of international law. However, in the particular field of
the diplomatic protection of corporate entities, no absolute test of
the "genuine connection" has found general acceptance. Such tests
as have been applied are of a relative nature and sometimes links
with one State have had to be weighed against those with another.
In the present case, the company was incorporated in Canada

and has its registered office in that country. The incorporation of
the company under the law of Canada was an act of free choice.
Not only did the founders of the company seek its incorporation
under Canadian law but it has remained under that law for a
period of over 50 years. It has maintained in Canada its registered
office, its accounts and its share registers. Board meetings were
held there for many years; it has been listed in the records of the
Canadian tax authorities. Thus, a close and permanent connection
has been established, fortified by the passage of over a half a
century. The Court considers that the adoption of the theory of
diplomatic protection of shareholders as such, by opening the door
to competing diplomatic claims, could create an atmosphere of
confusion and insecurity in international economic relations. The
danger would be all the greater inasmuch as the shares of a
company whose activity is international are widely scattered and
frequently change hands.
It is quite true that international law recognizes parallel rights

of protection in the case of a person in the service of an international
organization. Nor is the possibility excluded of concurrent claims
being made on behalf of pereons having dual nationality, although

in that caee lack of a genuine link with one of the two States may
be set up against the exercise by that State of the right of protec-
tion. It must be observed, however, that in these two types of
situations the number of possible protectors is necessarily very
small, and their identity normally not difficult to determine. It
should also be observed the promoters of a company whose op-
erations will be international must take into account the fact that
States have, with regard to their nationals, a discretionary power
to grant diplomatic protection or to refuse it. It is clear that Bar-
celona Traction was never reduced to a position of impotence such
that it could not have approached its national State, Canada, to
ask for its diplomatic protection, and that, as far as appeared to
the Court, there was nothing to prevent Canada from continuing
to grant its diplomatic protection to Barcelona Traction if it had
considered that it should do so. For the above reasons, the Court
is NOT of the opinion that, in the particular circumstances of the
present case, jus standi, is conferred on the Belgian Government
by consideration of equity. Accordingly, the Court rejects the Belgian
government's claim by 15 votes to one, 12 votes of the majority
being based on the reasons set out in the present judgment.
THE NATIONALS OF A STATE

The nationals of a State are those who owe allegiance to and are
67
entitled to the protection of, a given State. Whether they are by
domestic law referred to as citizens or as subjects is of no importance
68
in International Law. Technically, of course, the difference between
nationality and citizenship is this: while nationality deals with
membership in an ethnic or racial community, citizenship is mem-
bership in a political community. It is for each State to determine
under its own law who are its nationals. This law shall be recognized
by other States insofar as it is consistent with international con-
ventions, international customs, and the principles of law generally
recognized with regard to nationality. Since each State determines
who are its own nationals, "any question as to whether a person
possesses the nationality of a particular State shall be determined in
6
accordance with the law of that State." *
^See Wilaon, Handbook of International Law, p. 130.

"Oppenheim-Lauterpacht, op. eit., Sec. 293.
" A r t s . 1 and 2, Hague Convention of 1930 on Conflict of Nationality Laws.
STATELESSNESS
A person may become Stateless thru any of the following
means:
(1) He may have been deprived of his citizenship for any
cause, such as the commission of a crime;
(2) He may have renounced his nationality, by certain acts,
express or implied;
(NOTE: Sec. 1, par. 2, of Com. Act No. 63, as amended by
Rep. Act No. 103, requires "express renunciation").
(3) He may have voluntarily asked for a release from his
original status; or
(4) He may have been born in a country which recognizes
only the principle of jus sanguinis (citizenship by blood) of par-
ents, whose law recognizes only the principle of jus soli (citizen-
ship by birth in a certain place).
(NOTE: He is, thus, neither a citizen of the country, where he
was born, nor a citizen of the country of his parents.)
Writers who insist that only States, not individuals, are the
subjects of Public International Law, say that individuals who are
70
Stateless have no rights in international law.
DUAL AND MULTIPLE CITIZENSHIP

Does dual or multiple citizenship exist? Let us distinguish:
(a) From the viewpoint of the countries directly in-
volved, dual or multiple citizenship doeB N O T exist;
(b) From the viewpoint of Third States, however, it
does exist.
Example: If a child is bom in the U.S. of Filipino parents,
under Philippine law the child will be only a Filipino (not an
American) for we recognize the doctrine of jus sanguinis; under the
U.S. law, the child will be only an American (not a Filipino) for the
U.S. recognizes jus soli. Thus, dual citizenship does not really exiBt,
insofar as the Philippines and the U.S. are concerned. However, in
'"See Oppenheim-LauterpMht, op. eit., Sec 191.

the contemplation of a Third State, say, Japan, the child will be

both a Filipino and an American, presenting a clear case of dual
citizenship.
Strictly speaking, therefore, the problem of dual or multiple
citizenship or nationality can hardly arise because citizenship or
nationality is a matter to be exclusively determined by a country's
own law. Thus, the determination by our tribunals of a person's
particular foreign citizenship cannot be regarded as binding by
other courts.
From the viewpoint of Third States (as already adverted to),
dual or multiple citizenship may arise thru the following ways:
(1) Thru marriage;
(2) Thru the naturalized citizen's failure to comply with
71
certain legal requirements in the country of origin;
Example: A Chinese who has all the qualifications may become
a Filipino by naturalization, though China may still regard him as
a Chinese for his failure to get permission from the Chinese
Ministry of the Interior to renounce Chinese citizenship.
(3) From a combined application of jus soli and jus san-
guinis;
Example: While a married Filipino couple was in the United
States, a child was born to the wife. The child is an American
citizen under American law, by virtue of the principle of jus soli.
At the same time, under Philippine law, he is a Filipino citizen
because of jus sanguinis.
(4) By the legislative Act of State;
Example: A Filipino citizen may by the legislative act of a
foreign State be considered by such State as also its citizen. The
reasons for the award may vary.
(5) By the voluntary act of the individual concerned.
Example: A citizen of State X may become a naturalized citi-
zen of State Y, but at the same time, he may have received per-
12
mission from State X to remain a citizen of State X.
"Supra.
"See WolfT, Private International Law, p. 128.
DUAL ALLEGIANCE OF CITIZENS

y
A z n a r v Comelec and Emilio Osmena
G.R. N o . 83820, M a y 25, 1990
Justice E.L. Paras:

The statement in the 1987 Philippine Constitution that
"dual allegiance of citizens is inimical to the national interest
and shall be dealt with by law" (Art. IV, Sec. 5) has no
retroactive effect.
And while it is true that even before the 1987 Constitu-
tion, our country had already frowned upon the concept of
dual citizenship or allegiance, the fact is it actually existed.
Be it noted further that under the aforecited proviso, the
effect of such dual citizenship or allegiance shall be dealt
with by a future law. Said law has not yet been enacted.
/
FILIPINO CITIZENS UNDER THE 1987 CONSTITUTION
( I K Those who are citizens of the Philippines at the time of
the adoption of this Constitution.
(2H Those whose fathers or mothers are citizens of the Phil-
ippines.
OY- Those bom before January 17, 1973, of Filipino mothers,
who elect Philippine citizenship upon reaching the age of majority;
and
3
(4V~ Those who are naturalized in accordance with law.'
CHILDREN OF FILIPINO FATHERS OR MOTHERS

(1987 CONSTITUTION)
(ah This paragraph enunciates the principle of JUS
SANGUINIS.
( b H The rule applies whether the father or mother is a
Filipino or not; and whether the child is bom in the Philippines
or outside.
7:l
Sec. 1, Art. IV. 1967 Constitution.
(c) The rule certainly ie applicable if the father or

mother ie a natural-born Filipino citizen; does it also apply if
the father or mother is a naturalized Filipino?
To answer this question, let us first examine the pertinent
provisions of the Naturalization Law on the matter. Sec. 15 of the
law says:
1. Minor children of persons naturalized under this law
who have been born in the Philippines shall be considered citizens
thereof.
2. A foreign-born minor child, if dwelling in the Philip-
pines al the time of the naturalization of the parent, shall auto-
matically become a Philippine citizen, and a foreign-born minor
child who is not in the Philippines at the time the parent is
naturalized, shall be deemed a Philippine citizen only during his
minority, unless he resides permanently in the Philippines when
still a minor, in which case he will continue to be a Philippine
citizen even after becoming of age.
3. A child born outside the Philippines, after the natu-

ralization of his parents shall be considered a Philippine citizen,
unless within one year after reaching the age of majority, he fails
to register himself as a Philippine citizen at the Philippine consulate
of the country where he resides and to take the necessary oath of
allegiance.
Tli.' question may now be properly answered in the following
manner:
(a) a minor child born BEFORE naturalization
1) if born in the Philippines — is a Filipino
2) if bom outside the Philippines
a) if dwelling in the Philippines at the time
of parent's naturalization — is a Filipino;
b) dwelling outside the Philippines at the
time of parent's naturalization — is a Filipino only
during his minority unless he resides permanently
in the Philippines when still a minor, in which case
he will continue to be a Philippine citizen even after
becoming of age.
(b) a minor child born A F T E R naturalisation
1) if born in the Philippines — is a Filipino

2) if bom outside the Philippines — shall be
considered a Philippine citizen, unless within one year
after reaching the age of majority he fails to register
himself as a Philippine citizen at the Philippine consulate
of the country where he resides and to take the neces-
sary oath of allegiance.
It will be observed that:
(a) in the case of children already of age at the time
of the parent's naturalization, they do not become Filipino
citizens unless they themselves be naturalized;
(b) in the case of minors, who were bom IN the Phil-
ippines before or after the parent's naturalization, and in the
case of a minor, born OUTSIDE the Philippines but already
dwelling IN the Philippines at the time of the parent's
naturalization — no condition is imposed by the law: they are
F I L I P I N O CITIZENS;
(c) in the case of minors bom OUTSIDE the Philip-
pines, the law is more strict on the child bom BEFORE natu-
ralization because he is compelled to reside here, whereas in
the case of the child born A F T E R naturalization, all that the
law requires is registration. Both of these requisites appear
to be unconstitutional, since the fundamental law makes no
distinction; nonetheless it would seem that these requirements
are proper, and unless complied with could result in loss of
Philippine citizenship, a loss which under the Constitution
itsel f can properly be provided for by law. (Art. TV, Sec. 2, 1987
Const.).
CHILDREN BORN BEFORE JAN. 17,1973 OF FILIPINO MOTHERS

(1987 CONSTITUTION)
(a) Provision — "Those born before Jan. 17, 1973 of Fili-
pino mothers who elect Philippine citizenship upon reaching the
age of majority.'' [Art. TV, Sec. 3, 1987 Const.]
(b) Requisites:
1) The father here must not be a Filipino citizen,
otherwise, another provision (already discussed) applies;
2) The mother must be a Filipino citizen;
3) Upon reaching the age of majority, the child, to be

a Filipino, must elect Philippine citizenship.
[NOTE — The requirement as to the "electing" is for legiti-
mate children. Illegitimate children follow the Filipino mother's
nationality, and, therefore, do not have to elect Philippine citi-
zenship. (See Chin Seng v. Galang, L-11931, Oct. 27, 1958).]
(c) Query: As of what moment must the mother be a citizen
of the Philippines?
Theories:
1) The first theory is that the mother must be a citizen
of the Philippines at the time of the birth of the child.
2) The second theory is that the mother must be a
Filipino citizen at the time the child elects Philippine citi-
zenship.
3) The third theory is that it is sufficient for the mother
to have been a Filipino citizen at the time of her marriage to
a foreigner.
The Correct Theory:

It would seem that the third theory — that the mother is a
Filipino at the time of her marriage to an alien — is the COR-
RECT theory. (See Matter of Robert Cu, L-3018, July 18, 1951. for
two [ 2 | cogent reasons:
1) If the first or the second theory is to be applied
very few children can avail themselves of the option, for in
many instances, the mother would follow the husband's na-
tionality and, thus, lose Philippine citizenship;
2) Also, unless we apply the third theory, the right to
elect Philippine citizenship will depend in many cases on the
husband's national law — a law which may vary from time
to time, even to the extent of denationalizing its own citizen.)
(See Hudson, Cases on International Law, p. 201). (NOTE: In
the case of Villahermosa v. Commissioner of Immigration, L-
1663, March 31, 1948, however, the Supreme Court seemed
to imply that the second should be adhered to. In said case
the Court made the observation that the child can elect Phil-
ippine citizenship only if at the time of such election, the
mother has already reacquired Philippine citizenship.)
(d) Query: Within what period after attaining the age of

majority must the child elect Philippine citizenship?
Answer: The option must be exercised within a REASON-
ABLE period after having attained the age of majority. (Opinion
of the Secretary of Justice. Aug. 12, 1945, June 26, 1947). What is
reasonable is a question of fact, depending upon the peculiar cir-
cumstances of each case. In one instance, three years was still
considered a reasonable period. (Opinion of the Secretary of Jus-
tice, No. 20, s. 1948). But generally five years would be unrea-
sonable. (Lim Teco v. Commissioner of Customs, 24 Phil. 84). So
also would the period of over seven years after attaining majority
age. (Dy Cueco v. Secretary of Justice, L-18069, May 26, 1962).
(e) Query: Before the child elects Philippine nationality, what

is his nationality?
Answer: Generally, this would be the nationality of the father,
if the child is a legitimate child. But.of course this would depend
on the father's national law.
(0 Query: Suppose a Filipino mother is not married to a
Chinese but is merely cohabiting with him, is the child still a
Filipino?
Answer: Yes, a child bom outside a lawful marriage of an alien
father and a Filipino mother, being illegitimate, follows the
mother's citizenship. (NOTE — this doctrine although followed in
many cases had no legislative sanction under the 1987 Constitu-
tion: it was merely a clear example of lawmaking by the Supreme
Court — see Pitallano v. Republic, L-5111, June 28, 1954).
However, if the parents should marry each other later, the le-
gitimated child should generally follow the father's citizenship.
iKok Hua v. Republic, L-5047, May 8, 1952; Zamboanga Transpor-
tation Co. v. Lim, L-10975, May 27, 1959).
( g ) Law on the Option to Elect Philippine Citizenship.
COMMONWEALTH ACT NO. 625

AN ACT PROVIDING THE M A N N E R IN WHICH THE OPTION
TO ELECT P H I L I P P I N E CITIZENSHIP SHALL BE DECLARED
BY A PERSON WHOSE MOTHER IS A F I L I P I N O CITIZEN
Section I. The option to elect Philippine citizenship in ac-
cordance with Subsection 4 (now 3), Sec. 1, Art. IV of the 1935
370 rNTERNATIONAL LAW AND WORLD POLITICS
(now 1967) Constitution shall be expressed in a statement to be

signed and sworn by the party concerned before any officer au-
thorized to administer oaths, and shall be filed with the nearest
Civil Registry. The said party shall accompany the aforesaid
statement with the oath of allegiance to the Constitution and
Government of the Philippines.
Sec. 2. If the party concerned is absent from the Philippines,
he may make the statement herein authorized before any officer
of the Government of the United States (now before embassy and
consular officials of the Philippines abroad save in those cases
were there are no officials yet, in which case the party concerned
has to do so before the embassy or consular officials of the United
States in the country where he may be), and shall forward such
statement together with his oath of allegiance, before the Civil
Registry of Manila.
Sec. 3. The Civil Registrar shall collect a filing fee for the
statement in the amount of ten pesos.
Sec. 4. The penalty of prision correctional, or a fine not exceed-
ing ten thousand pesos or both shall be imposed on anyone found
guilty of fraud or falsehood in making the statement herein prescribed.
Sec. 5. This act shall take effect upon its approval. Approved,
June 7, 1941.
(h) Query: If a Filipino woman marries a foreigner, she gets
her husband's nationality or citizenship, if the laws of her hus-
band's country so provide. In such a case, she loses Philippine
citizenship. Now then, upon the husband's death, does she im-
mediately reacquire Philippine citizenship?
Answer: It depends:
1) If she became a widow before the effectivity of Com.
Act No. 63 (Oct. 21, 1936), she immediately reacquired Phil-
ippine citizenship without any need of repatriating herself,
since it would be unfair to require repatriation (reacquisition
of citizenship by a formal act) before there existed any Act
requiring her to do so. There is one exception, however, and
this would be if she, by outward or external acts, decided to
continue being a citizen of her husband's country. (Talaroc v.
Uy, L5397, Sept. 26, 1952).
2) If she became a widow on or after Oct. 21, 1936,

i.e., before Com. Act No. 63*s effectivity, she has to repatri-
ate herself, otherwise, she remains a foreigner. (Talaroc v. Uy,

supra; Villakermosa v. Commissioner of Immigration, L-1663,
March 31, 1948). However, the 1973 Constitutional provision
has repealed this statutory rule and the 1987 Constitution
made it applicable not just to female citizens. (See Joaquin G.
Bernas, S.J., The 1987 Phil. Const: A Reviewer-Primer, 1992
ed., p. 175).
NOTE: If the woman repatriates herself, does her repatria-
tion carry with it the repatriation of her minor child?
Answer: No, for repatriation means reacquisition. Since the
child never was a Filipino previously, it is obvious that he cannot
reacquire that which he never had. (See Villahermosa v. Com. of
Immigration, L-1663, March 31, 1948). It should be observed,
however, that if instead of repatriation (for repatriation, there
must be a FORMAL A C T ) the widow had automatically regained
Philippine citizenship, the nationality of her minor child would
follow hers. (Talaroc v. Uy, L-5397, Sept. 26, 1952; Republic v.
Hon. Judge Tandayag, G.R. No. 32999 Oct. 15, 1982).
Laureto Talaroc v. Alejandro D. Uy

L-5397, Sept. 26, 1952
FACTS: Uy was elected municipal mayor. Talaroc, a de-
feated candidate for said office, brought quo warranto pro-
ceedings against Uy, alleging the latter's citizenship, and
consequent disability. Uy was born in Lanao in 1912 of a
Chinese father and a Filipino mother. While Uy was still a
minor, his father died in 1917. The mother died in 1949,
without expressly repatriating herself. Uy had voted in pre-
vious Philippine elections, and on some occasions he had even
been allowed to hold public offices.
HELD: When Ursula Diabo, Uy's mother became a
widow, Com. Act No. 63 had not yet been enacted; therefore,
without need of repatriation, he automatically followed the
nationality of the mother. Hence, Uy became a Filipino. Uy
is, therefore, eligible.
QUERY
(a) A was born in the Philippines of a Chinese father and
a Filipino mother at the time of her marriage. As A iB still a minor,
what can he later do to become a Filipino citizen?
(b) Are children bom of a Filipino father and a Filipino

mother (whether theee are native-bom or are simply naturalized
Filipino citizens) Filipino citizens? What about those bom of Filipino
fathers but outside the Philippines and of mothers who are not
Filipino citizens?
ANSWERS:
(a) A may elect Philippine citizenship upon reaching the
age of majority or within a reasonable lime thereafter. The elec-
tion shall be effected by signing a sworn statement declaring such
election, taking the oath of allegiance to the Constitution and the
laws of the Philippines, and filing said oath and affidavit with the
nearest Civil Registry.
(b) The constitutional provision does not distinguish between
persons whose fathers are Filipinos by birth and those whose fathers
are such by naturalization. It follows consequently that so long as
the father is a Filipino citizen, the child is a Filipino, even if the
mother is an alien, and even if the child is bom outside the
71
Philippines. Of course, a child already of major age at the time
of the naturalization of the father as a Filipino is not a Filipino
unless he himself is naturalized. The Naturalization Law, moreover,
says:
1. A foreign-bom minor child, if dwelling in the Philip-

pines al the time of the naturalization of the parent, shall
automatically become a Philippine citizen, and a foreign-bom
minor child who is not in the Philippines at the time the parent
is naturalized, shall be deemed a Philippine citizen only during
his minority, unless he resides permanently in the Philippines
when still a minor in which case he will continue to be a
Philippine citizen even after becoming of age.
2. A child born outside the Philippines after the natu-
ralization of his parent shall be considered a Philippine citi-
zen, unless within one year after reaching the age of major-
ity, he fails to register himself as a Philippine citizen at the
Philippine consulate of the country where he resides and to
55
take the necessary oath of allegiance.
u
Cu v. Rep., L-7685, Sepl. 23, 1955; Opinion o n h c Sec. or Justice. No 284,
Series of 1948.
'^Sec. 15. Naturalization Law, Com. Act No. 473, as amended by Rep. Act
No. 530.
DISCUSSION OF WHO ARE THE FILIPINO

CITIZENS UNDER THE NEW CONSTITUTION
(1) First Group —Those who are citizens of the Philippines
at the time of the adoption of the 1987 Constitution.
Explanation
This group includes, inter alia, even those who elected Phil-
ippine citizenship by virtue of the 1935 Constitution, and those
who had become naturalized Filipinos by January 17, noon, 1973
and February 2, 1987, respectively.
(2) Second Group — Those whose fathers or mothers are
citizens of the Philippines.
Explanation Re "Fathers"
This will have the same explanation as that for this group
under the 1987 Constitution.
Explanation Re "Mothers"
Be it noted that under the 1987 Constitution, as long as the
mother i6 a Filipino, there is no need for the child to elect Philip-
pine citizenship. BUT of course, this rule applies only to children
born after January 17, noon, 1973. If the child had been born of
the Filipino mother, say, in 1994, the child would still have to
elect Philippine citizenship within a reasonable time after reach-
ing majority (this would be in 2015) (See Art. TV Sec. l,No. 3. 1987
Constitution). If upon the other hand, the child had been born of
a Filipino mother, say in 1979, by 2000, or within a reasonable
time thereafter the child must have already elected Philippine
citizenship, and would therefore now be a Filipino under the first
group in Art. rV, Sec. 1 of the 1987 Constitution.
Explanation — See the discussion on "those born of Filipino
mothers, etc." under the 1987 Constitution. Let it be remembered
further that this "election" shall not apply to those born of Filipino
mothers after the effectivity of the 1987 Constitution.
(3) Third Group — Those who are N A T U R A L I Z E D in ac-
cordance with law.
Willie Yu v. Miriam Defensor-Santiago

G.R. N o . 83882, Jan. 24, 1989
By declaring himself as a Portuguese citizen in commer-
INTERNATIONAL L A W A N D WORLD POLITICS
rial documents, in addition to securing a Portuguese pass-

port, petitioner has clearly renounced his Philippine citizen-
ship.
While normally the question of whether or not a person
has renounced his Philippine citizenship should be heard
before a trial court of law in adversary proceedings, this has
become unnecessary as this Court, no less, upon insistence of
petitioner, had to look into the facts and satisfy itself on
whether or not petitioner's claim to continued Philippine citi-
zenship is meritorious.
Frivaldo v. Comelec
174 S C R A 245
Claiming his naturalization as an American citizen as
involuntary (stating that it was the only way he could stay in
the U.S. and thereby protect himself from Marcos), he avers
that the filing of his certificate of candidacy in the Philippine
elections is an act of renouncing his U.S. citizenship and
concomitantly his reacquiring of Philippine citizenship.
His claim that he is a Filipino is absurd. Similarly
situated Filipinos stayed on in the U.S. but never found it nec-
essary to abandon Philippine citizenship nor pledged
allegiance to the U.S. His participation in the Philippine elec-
tions would have rendered him Stateless, at best. If he really
wanted to require Philippine citizenship, he could have easily
done so via the process of repatriation. But the truth is, he
never did.
Jose B. A z n a r v. Comelec
and Emilio M a r i o Renner Osmena
G.R. N o . 83820, May 25, 1990
J. Edgardo L. Paras:
In the case of Osmena, the Certication that he is an

American does not mean that he is not still a Filipino, pos-
sessed as he is, of both nationalities or citizenships. Indeed,
there is NO express renunciation here of Philippine citi-
zenship, truth to tell, there iB even NO implied renunciation
of said citizenship.
When we consider that the renunciation needed to lose
THE FOURTH FUNDEMANTAL RIGHT: 37ft
Philippine citizenship must be "express," it stands to reason

that there can be no such loss of Philippine citizenship when
1
there is no renunciation, either "express" or "implied. '
QUERY
Under our existing laws, can a Filipino citizen renounce bis

citizenship in time of war? Reasons.
ANSWER: If the Philippines is involved in the war, a Filipino
citizen cannot renounce his citizenship because the "the govern-
ment may call upon the people to defend the State and, in the
fulfillment thereof, all citizens may be required, under conditions
78
provided by law" to render personal military or civil service. This
constitutional provision is applicable both in peacetime and during
war; but it is more immediately and peremptorily brought into
play when the Philippines is involved in war. If a citizen were free
to cast off his loyalty during war, he can very well exempt himself
77
from the consequences of treasonable acts. It follows without
saying that if the Philippines is not involved in war, renunciation
of Philippine citizenship may properly be made.
CITIZENSHIP OF A FILIPINO WOMAN WHO

MARRIES AN ALIEN
Under Commonwealth Act No. 63 (Sec. 1(7]), as amended by

R.A. Nos. 106, 2639, and 3834, a Filipino woman loses her Philip-
pine citizenship "upon her marriage to a foreigner if, by virtue of
the laws in force in her husband's country, she acquires his na-
tionality." This statutory rule has been repealed by the 1973
Constitution, while the 1987 Constitution made it applicable not
just to female citizens.
Thus, under the 1987 Constitution "citizens of the Philip-
pines who marry aliens shall R E T A I N their citizenship, unless by
their act or omission they are deemed, under the law, to have
renounced it." (Art. TV, Sec. 4, 1987 Constitution).
"Sac 4, Art. U, 1987 Constitution.

n
Sm PmaaU v. Manayoo, 78 Phil. 721.
&T1ZENSHIP OF AN ALIEN WOMAN WHO

MARRIES A FILIPINO
Under Sec. 15 of the Naturalization Law, an alien woman
who marries a Filipino citizen becomes a Filipino provided that
she herself may be lawfully naturalized. In the Burca Case (be-
low), the Supreme Court, thru Mr. Justice Conrado Sanchez, held
that the proper proceeding by means of which such a wife can be
declared a Filipino is a petition for naturalization (or for citizen-
ship).
In Re Petition to Declare Zita N g o B u r c a to

Possess All the Qualifications and None of the
Disqualifications for Naturalization
L-24252, Jan. 30, 1967
FACTS: This was a petition to declare Zita Ngo Burca,
a Chinese citizen and wife of Francisco Burca, a Filipino citi-
zen, as possessing "all the qualifications and none of the
disqualifications'' for naturalization under Commonwealth Act
No. 473 — the Naturalization Law — for the purpose of can-
celling her alien registry with the Bureau of Immigration and
Deportation. In other words, she wanted to be declared a
Filipino citizen.
Notice of hearing was sent to the Solicitor-General, and

duly published. The Solicitor-General opposed, and moved to
dismiss the petition on two (2) grounds:
(1) firstly, that "there is no proceeding established by
law or the rules for the judicial declaration of the citizenship
of an individual"; and
(2) secondly, that as an application for Philippine citi-
zenship, Burca's petition "is fatally defective for failure to
contain or mention the essential allegations under Sec. 7 of
the Naturalization Law," such as inter alia, the petitioner's
former places of residence. Moreover, there was the absence
of the affidavits of at least two supporting witnesses.
When the trial court granted the petition, the Solicitor-

General appealed the case to the Supreme Court.
HELD.
(1) "By constitutional and legal precepts, an alien
woman, who marries a Filipino citizen, does not — by the mere
fact of marriage — automatically become a Filipino citizen."

Reason: she must possess all the qualifications and none of
the disqualifications for naturalization. (NOTE: The Court
observed on this point that if it is enough to have none of the
disqualification — without requiring the presence of qualifi-
cations — there is a danger that a person, such as the
maintainer of a bawdy house, who has not been previously
convicted by a competent court could become a Filipino —
since it is the conviction that could disqualify.)
(2) T h e rule heretofore adverted to is to be observed

whether the husband be:
(a) a natural-born Filipino;
(b) a naturalized Filipino; or
(c) a Filipino by election.
(3) "If an alien woman married to a Filipino does not
ipso facto become a Filipino citizen, she has to file a 'petition
for citizenship' (petition for naturalization)." This petition
must:
(a) recite that she possesses all the qualifications

set forth in Sec. 2, and none of the disqualifications
under Sec. 4 of the Revised Naturalization Law;
(b) be filed in the Court of First Instance (now
Regional Trial Court) where the petitioner has resided
at least one year immediately preceding the filing of the
petition.
(4) "Any action by any other office, agency, board, or
official, administrative or otherwise — other than judgment
of a competent court of justice — certifying or declaring that
an alien wife of a Filipino citizen is also a Filipino citizen, is
hereby declared null and void."
The Court, after treating Burca's petition as one for

naturalization, then went to the merits of the petition, and
denied the same on the ground that not all of her former
places of residence had been stated therein, and on the fur-
ther ground that the petition was not supported by the affi-
davit of at least two credible persons.
/REVERSAL OF THE BURCA DOCTRINE

In the Moy Ya case, the Supreme Court reversed its position
in the Burca case, and stated that upon the foreigner's marriage
to a Filipino male citizen, she becomes a Filipino, provided she has
none of the disqualifications for Philippine citizenship.
Ching Leng v. Galang

L-11931. Oct. 27, 1958
FACTS: Ching Leng, a Chinese was granted Philippine
citizenship on May 2, 1950 by the Court of First Instance
(now Regional Trial Court) of Rizal. Later, his wife filed a
petition for the adoption of his five illegitimate minor children.
The adoption was allowed. Ching Leng then requested the
Commissioner of Immigration and Deportation for the can-
cellation of the alien certificate of registration of said minors
on the theory that they were now Filipino citizens. Commis-
sioner of Immigration Galang denied the request citing Opin-
ion No. 269 of the Secretary of Justice dated Oct. 9, 1954,
which ruled that adoption does not effect a change of nation-
ality of the adopted. Ching Leng then filed this action to
compel Galang to cancel said alien certificates.
HELD: The alien certificate of registration will not be

cancelled because the adopted children have not become Fili-
pinos, in view of the following reasons:
(a) While generally an adopted child has the rights of
a legitimate child (See Art. 189, Family Code) still citizenship
is not a right but a mere privilege;
(b) Granting that citizenship is a right, it is not enu-
merated as such in the Civil Code (now Art. 174 of the Fam-
ily Code] which enumerates the rights of legitimate children,
and, therefore, is not one of those alluded to in the Civil Code
[now Art. 189 of the Family Code];
(c) Acquisition of citizenship partakes of the character
of naturalization and this matter is regulated not by the Civil
Code [now Family Code] but by special laws, (Art. 49, Civil
Code);
(d) Under Sec. 15 of the Revised Naturalization Law,
the words "minor children" refer generally to legitimate
children of the mother for in the latter caee, they follow her
nationality, not that of the illegitimate father;
(e) If adoption by a natural-born Filipino doea not vest
Philippine nationality in the adopted child, there is no
plausible reason why adoption by a naturalized Filipino should
have a more far-reaching effect;
(f) If adoption can confer Philippine nationality on the
adopted, many people will resort to this method rather than
to the more difficult process of formal naturalization proceed-
ings.
(NOTE: Whether or not the illegitimate Chinese chil-
dren in this case continued to be regarded as Chinese by
China is a matter that depends on Chinese law. What is clear
is that under our law, they are not Filipino citizens.)
WHERE A DECLARATION OF PHILIPPINE

CITIZENSHIP MAY BE MADE
A judicial declaration that a person is a Filipino citizen can-
not be made in a petition for naturalization for the reason that in
this jurisdiction, there can be no independent action for the judi-
cial declaration of the citizenship of an individual. Courts of jus-
tice exist for the settlement of justifiable controversies, which imply
a given right, legally demandable and enforceable, an act or
omission violative of said right, and a remedy, granted by law for
said breach of right. As an I N C I D E N T only of the adjudication of
the rights of the parties to a controversy, the court may pass upon,
and make a pronouncement relative to their status. Otherwise
such pronouncement is beyond judicial power. This holding OVER-
RULES the holding in Pablo y Sen, et al. v. Republic, L-6868,
April 30, 1955 and other previous cases to the effect that the court
can make a declaration that an applicant for naturalization is
already a Filipino citizen in the same naturalization proceedings
if the evidence so warrants. (Tan Yu Chin v. Republic, L-15775,
April 29, 1961; Tan v. Republic, L-16108, Oct. 31, 1961; Dionisio
Palaran v. Republic, L-15047, Jan. 30, 1962; Reyes et al v Repub-
lic, L-17642, Nov. 27, 1964; Lao Yap Han Diok v. Republic, L-
19107-19109, Sept. 30, 1964). Indeed a declaration of Philippine
citizenship C A N N O T be validly made in an action for declaratory
relief (In Re Villa Abrille v. Republic, L-7096, May 31, 1956) or in
a summary action for a change or correction in the Civil Registry
under Art. 412 of the Civil Code.fTin v. Republic, L-5609, Feb. 5,

1964). One instance when a declaration of Philippine citizenship
may be made is a petition for injunction to restrain, for instance,
the Alien Control Officer, acting under orders from an Associate
Commissioner of Immigration and Deportation, from compelling
certain people, allegedly Filipinos, to register as aliens. (Lorenzo
Lim, et al. v. De la Rosa, L-17790, March 31, 1964).
Lorenzo Lim & Juana Alvarez Lim

v. De La Rosa, Et Al.
L-17790, M a r c h 31, 1964
FACTS: Lorenzo Lim alleges that he is a citizen of the

Philippines, but the Department of Justice, in three separate
opinions rendered in 1955, 1956, and 1958, respectively,
denied said claim. Pursuant to said opinions, respondent Alien
Control Officer, upon orders from respondent Associate
Commissioner of Immigration and Deportation, required said
petitioner to register as. an alien within ten (10) days upon
receipt of the notice in accordance with the provisions of the
Alien Registration Act under which all aliens residing in the
Philippines must register with the Bureau of Immigration
and Deportation. Petitioner Lorenzo Lim and his wife, the
other petitioner, thereupon, filed an injunction suit with the
Court of First Instance (now Regional Trial Court) of Manila
to enjoin respondents from requiring or compelling them (the
spouses) to register as aliens. The CFI ( R T C ) , after hearing,
rendered judgment holding that the said spouses are Filipino
citizens, and enjoining respondents from requiring their
registration as aliens. Respondents brought this appeal on
the principal ground that petitioners' citizenship cannot be
determined under the petition.
HELD: What would be the remedy of a citizen or an

inhabitant of the country claiming to be a citizen thereof,
who is being required or compelled to register as an alien by
administrative officers of the Government, who, relying upon
rulings or opinions of superior administrative officers, are in
turn complying with their duty? If the person claiming to be
a citizen of the country who is being required or compelled to
register as alien can show, establish or prove that he is such
citizen, the remedy of injunction to prevent the officers from
requiring or compelling him to register as alien is certainly
the proper and adequate remedy to protect his right. The

finding of the trial court that petitioner Lorenzo Lim ie such
a citizen being supported by the evidence presented, the
judgment appealed from is affirmed. In the case at bar, the
following were proved:
(a) After the passage of Commonwealth Act No. 625,

Lim elected Philippine citizenship;
(b) In 1955, he was a registered voter;
(c) In 1957, he was issued a Filipino passport;
(d) In 1957, also, the Court of First Instance (now
Regional Trial Court) of Zamboanga City, in granting a peti-
tion for a change of name stated that Lim is a Filipino citizen;
(e) Lim has never been registered as an alien; and
(0 The Certificate of registration of his business name
recites that Lim is a Filipino citizen.
In Re: Petition for correction of entry of

certificate of birth of the minor Chua Tan Chuan
L-25439, March 28, 1969
FACTS: An illegitimate child of a Chinese father and a
Filipino mother was registered in the Civil Registry as a
Chinese. She filed a petition for the correction of the entry to
make her citizenship read as "Filipino" in view of the absence
of a marriage between her parents. Will the petition prosper?
HELD: (Thru then Mr. Justice Enrique M. Fernando,
No, the petition will not prosper, because although osten-
sibly this is a mere petition for a clerical correction, still in
substance, what is sought is a judicial declaration of Philippine
citizenship. (See Reyes v. Republic, L-17642, Nov. 27, 1964).
Republic v. Hon. Manolo L. Maddela

L-21664, March 26, 1969
FACTS: Miguela Tan Suat, a Chinese woman married
to a Filipino, went to court to seek a declaration of Philippine
citizenship and to compel the Commissioner of Immigration
and Deportation to cancel her alien certificate of registration
in view of her marriage. Will the petition prosper?
HELD: (Thru then Mr. Justice Querube Makalintal,

No, because generally, no person claiming to be a citizen
can get a judicial declaration of citizenship.
U.S. NATURALIZATION LAW

VIS-A-VIS FILIPINO WAR VETERANS
The Immigration and Nationality Act of 1990 provides the
naturalization of Filipino war veterans who served in an active
duty status under the command of the United States Armed Forces
in the Far East (USAFFE), or within the Army, the Philippine
Scouts, or recognized guerilla units.
Under Section 113 of the United States Naturalization Law,
veterans need not go to the United States after their US naturali-
zation in Manila in order to petition members of their families.
Petitions for spouse and minor children may be filed with the
embassy and process in four to six months from the time of filing,
if there are no problems with their petitions and applications for
visa. Adult sons and daughters must wait at least 10 to 20 years
before depending on the rate of movement of the immigration visa
priority dates. Even illegitimate children who are unmarried and
below 21 years old may be petitioned by veterans as long as they
can substantiate their relationship with their fathers. "Unmar-
ried" includes single, divorced or widowed.
In the case of naturalized veterans who may wish to go the
the U.S., their relatives may apply for a tourist visa in order to
accompany them in their travel provided they can convince the
consular officer that they have strong family ties and financial
reasons to compel them to return to the Philippines, the embassy
said.
Benefits provided to veterans by the different States are in-

dependent of federal benefits and differ from State to State. Most
of the time, eligibility is dependent on the State being the place of
residency or home of record at the time of enlistment or induction.
Dugcoy Jao v. Republic

G.R. N o . 29397, M a r h . 29, 1983
FACTS: An illegitimate daughter of a Filipino mother
was erroneously registered as an alien. She further claimed
that she lost her citizenship upon marriage to an alien. Her
T H E FOURTH F U N D E M A N T A L RIOHT: 388
T H E RIOHT OP PROPERTY A N D JURISDICTION
alien husband died later. She petitioned the Regional Trial

Court for "judicial repatriation" and which the court did de-
claring her Buch.
ISSUE: Wae there proper repatriation?
HELD: No, for the simple fact that there is no law
authorizing "judicial repatriation.'' The woman in thiB instance
only has to take the necessary oath of allegiance and to reg-
ister Baid oath in the civil registry.
Regarding the petitioner's claim of Philippine citizen-
ship prior to the marriage, such may not be established in an
action where the mother or his heirs are not partners thereto.
Clearly, in a non-adversarial suit where affected persons are
not made parties, Philippine citizenship may not be declared.
JURISDICTIONAL ASSISTANCE BETWEEN STATES INSOFAR

AS PERSONAL JURISDICTION IS CONCERNED
In civil matters, States attempt to assist one another thru
the use of letters rogatory. A letter rogatory is an instrument
whereby a foreign court is informed of the pendency of a case and
the names of the foreign witnesses, and is requested to cause their
depositions to be taken in due course of law, for the furtherance
of justice, with an offer on the part of the court making the request,
78
to do the same for the other, in a similar case. Sec. 11, Rule 24
of the RuleB of Court says: "Persons before whom appositions may
be taken in foreign countries — In a foreign State or country,
deposition shall be taken (a) on notice before a secretary of embassy
or legation, consul-general, consul, vice consul, or consular agent
of the Philippines, or (b) before such person or officer BB may be
appointed by commission or under letters rogatory." Sec. 12 of the
same rule provides: "Commission or letters rogatory — A com-
mission or letters rogatory shall be issued only when necessary or
convenient, on application and notice, and on such terms and with
such directions as are just and appropriate. Officers may be des-
ignated in notices or commissions either by name or descriptive
title and letters rogatory may be addressed To the Appropriate
Judicial Authority in (here name of the country).' "
In the sphere of crimes, States assist one another in consid-

ering the following as crimes in the international legal order: piracy,
n
BalurnXin£'a Law Dictionary, 2nd Edition, p. 744.
genocide, the preparation of and participation in ware of aggres-

sion or in violation of international agreements. Moreover, either
by virtue of a treaty or because of international comity, extradition
has often been resorted to.
TRANSNATIONAL CRIMES
The U.S. government under President Bill Clinton has iden-
tified criminal activity as its "main concern" today, in fact, a mat-
ter of national policy and even going further by labelling it a
"transnational crime" which knows no borders. From the U.S.
government's perspective, the most serious a c t i v i t i e s of
transnational crimes, include inter alia: drug transhipments from
third countries to the U.S. thru Manila, counterfeiting U.S. treasury
checks, theft and fraudulent use of credit cards and negotiable
instruments, piracy of intellectual property, and money launder-
ing. Also mentioned by Pentagon was visa and passport fraud as
an alarming problem with the legitimate claimant ultimately
suffering the most because of delays on the matter of investigative
inquiry.
Recognizing the importance of closer cooperation between the

U.S. and R.P. law enforcement agencies, the Bill Clinton Govern-
ment has invited the Fidel V. Ramos Administration to negotiate
a bilateral mutual legal assistance treaty. This proposed treaty aims
to establish a regular channel for obtaining law enforcement as-
sistance in: (a) taking testimony or statements of witnesses; (b)
providing documents and other physical evidence in a form admis-
sible in U.S. and Philippine Courts; (c) executing searches and
seizures; (d) freezing assets; and (e) locating or identifying persons
or items, and other areas of mutual benefit. Added items for the
Ramos administration's agenda include the following: (1) ratifica-
tion of the 1988 Vienna Convention on Drug Trafficking. (This
treaty can provide teeth via increased funding to drug enforce-
ment efforts with appropriate implementing legislation on money
laundering as assets forfeiture); (2) reform of Philippine banking
laws to permit law enforcement agencies greater investigative
access to bank records. (In the U.S., this has been found to be a
crucial prerequisite to investigation and prosecution of white col-
lar crimes). To this, however, the Ramos administration should
examine its funding for law enforcement, i.e., higher salaries for
the personnel to increase their motivation and reduce the inci-
dence of graft and corruption.
PIRACY
Piracy is an act of violence committed on the open sea against
persons and things, without lawful authority, done with animo
furandi (intent to plunder) in the spirit and intention of universal
79
hostility. It may also take the form of a forcible depredation by
80
a mutinous crew or by the passengers against their own vessel.
81
The offense is a crime against the law of nations. Accordingly, any
State in whose jurisdiction the pirates may come, may try and
82
punish them. The pirate is denied the protection of the flag which
he may carry; he is treated as an outlaw, as an enemy of all
3
mankind — hostis humani generis.*
Many States have their own definitions of piracy. Unless these
definitions are in accord with that hereinabove given, they are not
universally accepted. Such acts of "piracy" are, therefore, cognizable
M
only before the municipal tribunals of the State concerned.
A "pirate" is one who acts solely on his own authority, without
any commission or authority from a sovereign State and he acts
both in peace and during war, appropriating to himself without
any discrimination every vessel he fancies. Upon the other hand, a
"privateer" (who commits the act of "privateering") makes the act
of violence v/\th the authority of a State but for his own private
gain; the object seized belongs to an enemy State; and the act takes
place only during war. "Privateering" is used to receive sanction
85
from international custom; today, it has been completely outlawed.
AIR HIJACKING AND TERRORISM

Any businessman worth a grain of salt knows that terrorism
impacts his bottom line. Terrorism, which pictures an atmosphere
of threat or violence, has made international travel a crap shoot
'•"United States v. Palmer. 4 L. Ed. 471.

""See Oppenheim-Lauterpachl, op. eit., pp. 558-559.
"'1 Kent, Comm. 183.
M
S « Dole V. Insurance Co., 2 Cli(T, 394.
^The Lotus Case. 2 Hudson World Reporla, p. 69.
"See Dole v. Insurance Co., supra; See Art. 122 or the Revised Penal Code
and the case of People v. Lolo. 43 Phil. 19. Tor our own interpretation of the term
•piracy." See also the Convention of the Law of the Sea's definition of 'piracy'.
ISee Chapter 8 of this book.l
"See Davison v. Sealkins. 2 Paine 324.
with loaded dice. Every now and then, acts of terrorism dominate
the news with alarming regularity. In the characteristic language
of Geoffrey Metcalf, author of the bestseller The Terrorist Killers
(1988): "It is clearly the terrorists' intention to cause chaos and
strike deadly fear among innocent bystanders in a misguided ef-
fort to make their point. Terrorist activity may be directed at
governments, but it attacks individuals — defenseless individu-
als." One not uncommon act of terrorism is that of air hijacking,
described simply as the unlawful seizure of aircraft in flight car-
ried out by private individuals for personal reasons or out of po-
litical motives. Professors Robert L. Bledsoe and Boleslaw A. Boczek
of the University of Central Florida and Kent University, respec-
tively, have provided a summation of the history of air hijacking
in this wise:
T h e first attempt to deal with aircraft offenses was the

Tokyo Convention of 1963 on Offenses and Certain Other
Acts Committed on Board Aircraft (1963). It deals with air
hijackers only incidentally, treating them as any other of-
fender. It was not until 1970 that the Hague Air Hijacking
Convention made unlawful seizure of aircraft a separate crime.
A year later the Montreal Convention against Aircraft
Sabotage covered aircraft offenses other than hijacking, such
as placing explosives in aircraft and similar acts of sabotage,
destruction of aircraft in service, damage to air navigation
facilities, acts of violence against persons on board, and ex-
tortion hoaxes aboard an aircraft. Air hijacking became a
serious problem in the 1960s when a series of aircraft seizures,
initiated with a 1961 hijacking of a U.S.-registered airliner to
Cuba made the international public and governments cog-
nizant of the need to take appropriate measures. Governments
also increasingly recognized the dangers posed by hijacking
and similar offenses should not be overriden by real or alleged
political considerations motivating the offenders. This point
of view was endorsed not only by Western countries but also
by the then Soviet Union and other communist States after
they realized that their own aircraft were not immune to the
menace of hijacking. Yet it soon became evident that inter-
national agreements alone could not be an effective weapon
in combatting the menace of hijacking in the absence of full
cooperation of all States, particularly if certain governments
afforded shelter to hijackers or were otherwise in breach of
international obligations.
"Proposals designed to strengthen the enforcement of

anti-hijacking regulations, discussed within the framework of
the International Civil Aviation Organization (ICAO) and
other global international agencies, have not so far resulted
in more stringent and comprehensive enforcement rules to
deal with aircraft offenseB. Upon the other hand, this failure
has prompted national, bilateral, and regional action aimed
at combatting air hijacking. On the national level, stringent
anti-hijacking legislation and security measures contributed
to a marked decline of air hijacking incidents by the late
1970s. There h a v e also been cases of unilateral self-help ac-
tion against hijackers, such as the Entebbe raid in 1976 by
Israeli commandos who rescued passengers of an Air France
airliner in Uganda against that country's protests, and the
Mogadishu raid in 1977 in which a hijacked Lufthansa plane
was recaptured by West German troops with the Somali gov-
ernment's approval. On the other bilateral level. States have
signed agreements providing for the return of hijackers to
the State of registration or trial in the country of shelter. The
U.S.-Cuban Memorandum of Understanding of 1973, subse-
quently denounced by Cuba in retaliation for an alleged U.S.-
organized sabotage of a Cuban airliner, is an example of such
an agreement. On the regional level, the major Western in-
dustrialized countries agreed in 1978 to act in concert in
suspending air traffic to and from States that failed to sur-
render hijackers and hijacked aircraft promptly to the State
of the aircraft's registration. Beyond all these explicit agree-
ments, customary international law does not seem to have
developed a rule obligating States to take action against hi-
jackers. Return of the hijacked plane and passengers appears
to be enjoined by customary international law, however.'
This development has surely been the grave menace to the

safety and reliability of international civil aviation due LO the
multiplication of hijacking incidents, and of terrorists acts against
aircraft about to take off or land, and against airline passengers.
For this reason, one consequence of the increase in the volume,
range, and frequency of the international air traffic, coupled witl.
the growing number of countries in which the aircraft of reguhu
airlines are registered, has been the emergence of difficult pr o-
lems of jurisdiction in respect to offenses committed on board air-
craft in flight.
As already adverted to, major attempts to deal with these

problems were made by the Tokyo Convention of Sept. 14, 1963
(on Offenses and Certain Other Acts Committed on Board Aircraft),
the Hague Convention for the Suppression of Unlawful Seizure of
Aircraft (opened for signature on Dec. 16, 1970), and by the Con-
vention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation (concluded at Montreal on Sept. 23, 1971). In the
period 1968-1971 there had not only been hijackings, but the re-
lated aircraft crimes of armed attacks, sabotage, and other forms
of violence and intimidation directed against civil aviation, including
the appearance of bomb-hoax extortion as a new kind of menace
undermining public confidence in the security of international air
transport and prejudicing the administrative and financial conduct
of air services.
It is evident, says Dr. J.G. Starke, an international law pro-

fessor, that the law of aviation crimes cannot under these Conven-
tion of Tokyo, the Hague, and Montreal be "efficacious in the
absence of full cooperation between all States (for) certain govern-
ments favor the provision of sanctions, or if not sanctions, means
for bringing pressure to bear, where countries afford shelter to
hijacked aircraft or are otherwise considered to be in breach of
their obligations in that connection." Moves and proposals to this
effect have since 1972 been made or mooted at meetings within
the framework of the International Civil Aviation Organization
and elsewhere. Says Dr. Starke: "There are some almost insuper-
able obstacles to such moves and proposals bearing fruit in the
shape of an international convention which will come into force
with the necessary participation of a wide spread of countries.
Alternatives to a multilateral convention or multilateral conven-
tions are bilateral treaties, or domestic legislation enabling the
suspension of flights to or from countries sheltering hijackers, or
not cooperating in the prevention of aircraft crimes. Such treaties
and such domestic legislation are not prohibited by international
law."
GENOCIDE
Genocide (literally, the killing of the genus or group) is the
mass extermination of a racial, national, ethnic, or religious group.
According to the 1950 Convention on Genocide, any of the following
acts constitutes the international crime of genocide:
(1) the killing of the group members;
(2) the infliction on them of eerious mental or bodily harm;

(3) the deliberate infliction on the group of life conditions
designed to cause its total or partial destruction;
(4) the prevention of births within the group; or
(5) the forcible conveyance of children of one group to an-
other group.
Under Art. 4 of the Convention, offenders are punished
. whether they are rulers, public officials or private individuals.
\Even mere conspiracy or attempt to commit genocide is punish-
able. The Convention, signed by more than a score of States, took
effect on January 12, 1951.
/EXTRADITION
sÊrtradUionf is the surrender of one State to another of an
individual accused or conY' d of a crime committer! w i t h i n thp
plia
/ ^territory of the latter State in order that he may be dealt with

86
according to the law of said latter State. Extradition may be
accorded as a mere matter of comity, or may take place under
87
treaty stipulations between two States.
Among the most important common features in treaties of

extradition are the following:
(1) In the absence of a treaty, extradition cannot be de-
manded as a matter of right. If at all it is granted despite the
absence of a treaty stipulation, it is only because of comity and
88
mutual convenience.
( 2 ) Trial of the extradited person can be had only for the
offense stated BOTH in the request for extradition and in the
treaty of extradition. This is often referred to as the "principle of
specialty."^(Hence, if the offense charge is "murder" and the crime
proved is "cruel and unjust punishment," the person is entitled to
90
be released). If the extradited person after his surrender to the
"*Sw Terlington u. Ames, 184 U.S. 270.

"'See Fong Yue Ting u. U.S., 149 U.S. 698.
""See Charles H. Stockton. Outline of International Law, p. 189.
"See Fen wick, International Law, p. 332.
'"LAS. v. Rauacher. 119 U.S. 235.
demanding State should commit another crime, he may properly

be charged with this latter offense.'"
(3) There can be NO extradition for P O L I T I C A L or RELI-
GIOUS offenses.
NOTE: Genocide is not considered a political offense; hence,
9
the offender may properly be extradited. "'' The mere killing of a
Chief of State or ofHhe members of his family is not considered a
political act or crime; the provision on this point is called the
93
"attentat clause."
NOTE: The "attentat clause " was first thought of by Belgium
in 1856; the U.S.-Belgium Treaty of 1882 and the 1933 Montevideo
94
Extradition Convention also contain similar clauses. Complex
crimes (delits oomplexes) which combine political crimes with or-
dinary offenses are extraditable only insofar as they are non-po-
litical. In order to constitute an offense of a political character,
there ought to be two or more parties in a State, each seeking to
impose the government of its choice upon the other; if the offense
is committed in pursuance of this objective, it is a political offense,
9
otherwise, it is not. ''
(4) The crime must have been committed within the terri-
tory or jurisdiction of the demanding State; a contrary stipulation
is, of course, valid.
(5) There ought to be prima facie proof of guilt.
(6) If the person extradited be acquitted, he cannot be tried
for a criminal act committed previous to the extradition until after
he has been afforded reasonable opportunity to return to his home
State or to the State of asylum (or refuge).
(7) Extradition should not be refused simply because the of-
fender is a national of the State of asylum, unless the latter State (if
it follows the nationality theory in criminal law — "any national of
ours who commits any crime punished by our criminal laws can be
tried by us, regardless of the place where he committed the offense")
agrees to prosecute said offender according to its own laws.
"'Collins v. Johnson. 237 U.S. 502.

'"Art. 7, (950 Contention on Genocide.
"'Kelsen. Principles of International Law. pp. 249-250.
!
"See Fen wick. International Law. p. 336.
-'In re Caxtinrn. 1 Q.D. Div. 149. Hudnon Cascn. p. 1029.
(8) Usually, the offense charged muet be considered a crime

both in the demanding State and in the State of asylum."
ABDUCTION
If a citizen of State A, accused of war crimes and the mass
extermination of citizens of State B, seeks refuge in State C, but
is kidnapped from State C by nationals of State B, may the tri-
bunal of State B validly try said citizen for his alleged crimes?
It is submitted that:
(1) insofar as jurisdiction over the offense is concerned, State
B has jurisdiction;
(2) insofar as jurisdiction over the person of the defendant is
concerned. State B has no jurisdiction because it has violated the
territorial sovereignty and integrity of State C. (NOTE: State C may
properly object before the United Nations: if it does not make the
objection, or if having made it, it decides for reasons of its own to
withdraw such objection, State B may properly try the defendant).
United States v. Alvarez Machain

112 S. Ct. 2188, U.S. Supreme Court, June 15, 1992
In 1985, Special Agent Enrique Camarena-Salazar of

the U.S. Drug Enforcement Administration ( D E A ) was ab-
ducted, tortured and murdered by drug dealers in Mexico.
The DEA has gone to great lengths to bring the murderers to
justice, and has resorted to kidnapping, from Mexico, some of
those believed to be responsible for Camarena's death so that
they may be prosecuted in United States courts. Mexico has
officially protested the kidnappings. The Supreme Court has
not ruled that those abductions did not violate the Extradi-
tion Treaty between the United States and Mexico, and that
the Treaty, therefore, provides no basis for a U.S. court to
divest itself of jurisdiction over the abductees. On April 2,
1990, Dr. Humberto Alvarez Machain, a physician and
Mexican citizen, was abducted from his office in Guadalajara,
Mexico, by several armed men, and flown by private plane to
the United States, where he was arrested by the DEA. Alvarez
" S e e Kelsen, op. eit., p. 249.

392 INTERNATIONAL 1.AW A N D WORLD POLITICS
was accused of having participated in Special Agent

Camarena's murder in a particularly grisly fashion: he alleg-
edly used his medical skills to prolong Camarena's life under
torture so that other members of the drug ring could continue
to interrogate him in an effort to learn what he knew about
their operation.
Following Alvarez's abduction, the Government of Mexico
presented a series of diplomatic notes to the Department of
State. The notes accused the United States of having had
knowledge of the abduction, contended that the abduction
violated the Treaty, and demanded that Alvarez be returned
to Mexico. Alvarez was arraigned in the U.S. district court in
Los Angeles, and moved to dismiss his indictment. He ar-
gued, inter alia, that the court lacked personal jurisdiction
over him because his abduction had been orchestrated by the
DEA without the consent of the Mexican Government and,
therefore, violated the Treaty.
Had Alvarez been correct—that his abduction violated

the Treaty—his situation would arguably have fallen within
the scope of certain recognized exceptions to the longstanding
Ker-Frisbie doctrine. That doctrine, named for Ker v. Illinois
(119 U.S. 436 |1886|) and Fnsbie v. Collins (342 U.S 519
11952]), stands for the general proposition that jurisdiction
over a defendant in a criminal case is not affected by the
manner in which he or she has been brought before the court
— including kidnapping by government agents. [In the case
at bar (U.S. u. Alvarez-Machain ), the Supreme Court sus-
tained the jurisdiction of a U.S. court to try a Mexican na-
tional, charged with various counts of conspiracy, kidnapping
and the murder of a U.S. drug enforcement agent in Mexico,
even though his presence in the United States was the result
of abduction rather than extradition pursuant to the Extra-
dition Treaty between the United States and Mexico. The
Court did not hold, as widely reported in the media, that the
Treaty permits abduction, that abduction is legal, or that the
United States had a right to kidnap criminal suspects abroad
On the contrary, the Court acknowledged that the abduction
may have been a violation of international law. It stated.
"Respondent and his amici may be correct that respondent's
abduction was shocking' and thai it may be in violation ,>(
general international law principles" Not all abduction are
violations of international law, however. Abduction tif torrm-
ists may be justified self-defense under Article 51 of the United

Nations Charter and may thus not be in violation of interna-
tional law. That terrorist acts are not simply crimes commit-
tedxby individuals against individuals, but are acts planned
by States and aimed at other States, is clear from recently
opened KGB files. A KGB memorandum states that in 1968
the Soviet Union agreed with the Popular Front for the
Liberation of Palestine ( P F L P ) on a "long term program of
sabotage and terrorism,'' including "actions against U.S. and
Israeli personnel in third countries aimed at obtaining reli-
able information about the plans and intentions of the U.S.
and Israel." (Farts on File, New Republic, June 29, 1992, pp.
16-17)].
The Court did reject the reasoning of the U.S. Court of

Appeals for the Ninth Circuit that the abduction violated the
Extradition Treaty, and that, the Supreme Court reaffirmed
the long-established Ker-Frisbie (supra) doctrine that "the
power of a country to try a person for a crime is not impaired
by the fact that he has beeil brought within the court's juris-
diction by reason of a forcible abduction." The Court's hold-
ing is consistent with existing international law, with its ap-
plication of the Fourth Amendment to illegal arrests domes-
tically, and with the broad powers and deference that it has
historically accorded to the Executive in the conduct of for-
eign affairs.
INTERNATIONAL DRUG TRAFFICKING

Owing to the widespread illicit trafficking of drugs, it is for-
tuitous that an international conference has been convened precisely
to address this global malaise.
In 1987 (June 17-26), the International Conference on Drug
Abuse and Illicit Trafficking convened in Vienna, where it adopted
two ( 2 ) independent documents: (l).the Comprehensive
Multidisciplinary Outline; and (2) the Declaration on Drug Abuse
and Illicit Trafficking. The Conference addressed the long-stand-
ing issues of the supply of and illicit trafficking in drugs, but it
also emphasized the need to reduce demand for drugs and to in-
crease the number and quality of rehabilitative and treatment
alternatives available to drug abusers. Though the Conference
delineated future goals in the battle against drugs and the means
to their attainment, the success of its initiatives will ultimately
depend on the efforts and cooperation of individual States, as well

as on the reorganization of economies that are financially d e p e n d -
ent on the production of drugB.
The first major document, the Comprehensive Multi-discipli-
nary Outline of Future Activities in Drug Abuse Control (Outline),
specifically highlights the need to reduce illicit demand and to
rehabilitate drug abusers. Specific targets are indicated and ac-
tions to be taken at each level — national, regional, and inter-
national — are defined.
In connection with the prevention and reduction of demand,
for example, seven (7) targets are presented: (1) assessment of the
extent of drug misuse and abuse; (2) organization of comprehen-
sive systems for the collection and evaluation of data; (3) preven-
tion of drug abuse thru education (4) prevention of drug abuse in
the workplace; (5) prevention programs by civic, community, and
special interest groups; (6) leisure-time activities in the service of
the continuing campaign against drug abuse; and (7) programs
undertaken thru public information media.
Suggested courses of action at the national level to meet the

first target, assessing the extent of drug abuse, include: reviewing
current methodologies for epidemiological studies of drug abuse;
reviewing present methods of data collection; and establishing
central records for storing and evaluating data. At the regional
and international level, the possibilities include: comparative
studies by regional organization:; of drug abuse patterns; the es-
tablishment of formal agreements for international collaboration
in the measurement of international drug abuse patterns; and
technical assistance to States by international organizations, such
as the World Health Organization ( W H O ) , in the planning and
carrying aut of epidemiological surveys.
The second major document of the Conference, the Declara-

tion of the International Conference on Drug Abuse and Illicit
Trafficking (Declaration), announces priorities for future responses
against drug abuse and drug trafficking. The Declaration also calls
for the early finalization and adoption of the draft UN Convention
Against Illicit Trafficking in Narcotic Drugs and Psychotropic
Substances. Begun in February 1985, the Convention grew out of
concern over the increasing difficulties that widespread and inten-
sified drug trafficking presented to law enforcement and govern-
ment agencies. Its objective is to strengthen international coopera-
tion and coordination among customs, police, and judicial bodies
by providing them with guidelines for the interception of illegal

drugs at all stages of trafficking operations, including the launder-
ing of profits from illegal sales. Among the major innovations con-
tained in the draft are provisions to facilitate the identification,
tracing, freezing, seizure, and forfeiture of illegal drug profits. The
draft also obligates individuals signatory countries to extradite
drug traffickers and to enforce adequate sanctions against traf-
ficking, as well as to provide mutual legal and judicial assistance
in prosecuting drug offenders.
The high level of governmental participation in the Conference
illustrates a growing commitment on the part of the international
community to cooperate in the elimination of the global narcotics
problem. However, the Conference does not signal the acceptance of
formal obligations, but merely a declaration of intent. Though
agreement on the path to be followed is a necessary step toward the
eradication of the drug threat, the prospects for success hinge on
States' willingness to carry their cooperation beyond declarations of
intent and skeletal agreements. It goes without saying that the
economic realities underlying the supply of narcotics are also a major
obstacle in the fight against illegal drugs. Moreover, in areas outside
of research and statistics, particularly in law enforcement and ex-
tradition, concerns about the threat of terrorism and insurgency may
impede effective cooperation.
AIDS AND INTERNATIONAL CRIMINAL LAW
Recent examples of crimes associated with AIDS warrant a

discussion of the ramifications of the disease for international
criminal law.
Dr. Sue Titus Reid, author of the book Criminal Law (1989
ed.) has written a succinct perspective on the AIDS phenomenon,
thus:
"AIDS has become a household word in the world.
AIDS is the abbreviation for acquired immune deficiency
syndrome, a deadly disease that affects the immune system,
leaving the body unable to fight infections. The virus that
causes it iB acquired thru exchanges of bodily fluids with a
person w h o carries the virus. Although initially the groups at
highest risk for acquiring the disease were identified a s ho-
mosexual males a n d intravenous d r u g users, it is n o w clear
that the virus that causes AIDS m a y also be transmitted
thru heterosexual relations, thru blood transfusions, and from

mother to unborn child. Not clear is whether the disease may
be transmitted to health care personnel by their AIDS pa-
tients; but unless adequate precautions are taken, the pos-
sibility exists.
"What effect will the AIDS epidemic have on law? Al-
ready, civil cases have been filed by victims who argue that
an AIDS patient know or should have known about the
presence of the virus and, therefore, should have refrained
from sexual relations. Likewise, AIDS victims who acquired
the virus thru blood transfusions may bring civil suits; organ
transplant patients will also seek redress in the courts. Other
civil actions have been brought by people who claim they
have lost their jobs because of the disease; civil rights have
been allegedly violated, and slander and libel have been al-
leged.
"A most significant question, however, is how AIDS will

affect the criminal law. Prosecutions under existing U.S.
criminal statutes have already been brought against carriers
of the virus that causes AIDS. In December 1987, a soldier
charged with aggravated assault pleaded guilty before a gen-
eral court martial in Fort Sill, Oklahoma, to a lesser charge
of willfully exposing a female to the virus. The soldier was
accused of having sexual intercourse with the woman with-
out using a condom or other form of barrier protection know-
ing that he had tested positive for the AIDS virus. ("AIDS-
Infected Soldier Admits to Sex Charge," Tulsa World, Dec.
16, 1987, p. 10 A, col. 1). Also in 1987, a federal district court
in Minnesota refused to overturn an assault with a deadly or
dangerous weapon conviction in the case of a federal prisoner
who, after testing positive for the virus that causes AIDS, bit
two correctional officers. The court upheld the lower court's
ruling that the inmate's mouth and teeth constituted the
deadly or dangerous weapon in this case. (t/.S. v. Moore, 669
F. Supp. 289, Dist. Ct. Minn, 4th Div. 1987, affd. 846 F.2d
1163 8th Cir. 1988).
T h e problem of AIDs will continue to plague the global

society. As attempts are made to find a vaccine, a cure, even
a treatment, people must, learn to deal with the social, emo-
tional and moBt especially legal, problems that already ac-
company the disease."
INTERNATIONAL TRAFFICKING FOR CHILDREN
According to Nigel Cantwell, program officer on inter-country

adoption of the Geneva-based Defense for Children International
(DCI), children, regardless of sex and race, are being sold at $5,000
to $40,000 each in some countries.
In a 1992 regional conference held in Manila on "Protecting
Children's Rights in Inter-Country Adoptions and Preventing
Trafficking and Sale of Children," Cantwell, founder of DCI, said
the organization is "working on the rights of children in order that
illegal practice under guise of inter-country adoption could be
stopped."
Considering that some 20,000 children are being given up for
adoption each year or about 180,000 in 10 years and with 90% of
the children coming from Latin America and Asia, any country or
source of adoption is vulnerable to trafficking because of severe
economic problems. Countries vulnerable to these kinds of prob-
lem are Latin America, particularly Brazil, Africa and the Asia
Pacific region, China, the Philippines, Sri Lanka, Bangladesh,
Nepal, America, and Europe.
According to the United Nations International Children's Fund
( U N I C E F ) , a worldwide movement is expected in the mid-1990s
(1995 onwards) to drum up support to promote survival, protec-
tion, development, and participation to resolve this common con-
cern.
KIDNAPPING
Council of Europe: Committee of
Ministers of Recommendation 6n Measures
to be Taken in Cases of Kidnaping
Followed by a Ransom Demand
Introduction
1. The European Committee on Crime Problems (CDPC) at
its 26th Plenary Session in 1977 set up a Select Committee on
Violence in Present-day Society and gave it the task of studying,
with a view to drafting recommendations, the general and specific
problems raised by crimes of violence (e.g., hold-ups and
kidnappings) in present-day European society. Politically motivated
crimes were excluded. However, in view of the scope and nature of
the subject, the CPDC considered that it should he dealt with in

stages each defined by ad hoc terniB of reference. The work of the
Select Committee, in compliance with its first ad hoc terms of
reference, led to the adoption of Recommendation No. R (80) 10 on
measures against the transfer and the safekeeping of funds of
criminal origin.
The present Recommendation is the result of the work of the
Committee pursuant to its second ad hoc terms of reference which
read as follows:
"Study of the particular problems relating to kidnapping
followed by ransom demands particularly:
a. The role of the authorities after a hostage has been
taken and the ransom demanded;
b. the question of freezing the victim's assets;
c. the criminalization of the activities of intermedi-
aries;
d. the question of professional secrecy; and
e. evaluation of the role of the mass media."
2. The Committee met under the chairmanship of Mr. V.
Esposito (Italy). It consulted with a psychiatrist specialized in the
questions under consideration and heard the opinions of prosecu-
tors, police officers and journalists. The ICPO-Interpol and UNSDRI
were represented on the Committee by observers.
General Observations
1. Kidnappings followed by a ransom demand are among
the most serious acts of violence. Their incidence is not uniformly
spread throughout Europe: according to studies carried out as its
request by UNSDRI and by Mr. Palmeri (Italy), the Committee
found that the phenomenon is rife in certain European countries
and more particularly in one of them. This situation entails a risk
to the other European States, and it is, therefore, important that
they should all coordinate and step up their efforts to prevent any
extension of this particular form of crime.
Because of the very uneven incidence of the phenomenon in
the various member-States, no international comparison can be
made on the basis of statistics alone. Moreover, there are marked
THE FOURTH F U N D E H A N T A L RIGHT: 399
differences in the ways in which countries tackle problems related

to kidnappingB. It has, nonetheless, been possible to identify a
number of practical measures common to all, which form a part of
the global strategy needed to combat kidnaping effectively. The
fundamental elements in that strategy are as follows:
a. preparedness to deal with kidnappings;
b. coordination of action and information;
c. a correct assessment of the various interests in-
volved, and especially the paramount concern to safeguard
the victim's life; and
d. consultation of all the persons involved, particularly
the family and the media.
The gravity and complexity of kidnapping cases lie in the fact
that they are an assault on a person's liberty and threaten that
person's life for the purpose of extorting money. Their principal
characteristic is the diversity of interest at stake, particularly
concern for the victim's life, on the one hand, and respect for the
fight against criminality upon the other.
The victim fights for survival and an early release. He also
strives to preserve his family privacy and to defend his assets,
though in most cases he is unable to express his will or defend his
interests; they are defended by his family, which is then faced
with the dilemma of either capitulating to the kidnappers' demands
and finding some ways of paying the ransom or placing itself in
the hands of the authorities.
The latter have a twofold responsibility: to the victim and to
society.
These interests are legitimate and must be respected. Con-
sequently, everyone involved in a kidnapping has an obligation to
adopt attitudes and take decisions having regard not only to his
own interest but also to those of others, even if they are contra-
dictory and likely to lead to great difficulties, particularly for the
authorities.
In the concern to prevent this form of crime, one approach is
to give precedence to the general interest, possibly to the detriment
of private interests, notably those of the victim. However, moral
and humanitarian considerations have led the Committee to dis-
card that approach and, in most cases, to consider that the inter-
est of the kidnapped person should take precedence over consid-

erations of crime prevention and punishment.
This concern should not be seen as an invitation to the au-
thorities to favor payment of the ransom on a systematic basis; it
would run counter to the multiple objective that it pursues, the
victim's release being only one aspect of it. It would, furthermore,
be regarded by criminals as an inducement to crime.
The underlying idea of this recommendation is to achieve
increased efficiency and not more bureaucracy. The machinery
referred to can be set up within existing frameworks. It may in-
clude human and/or technical resources, notably data banks.
2. This recommendation calls for the establishment or
improvement of a system whereby the different national
machineries referred to in paragraph 1 can liaise directly with
each other. Indeed, an easy, expedient and direct exchange or
information relating to past cases and to stored data is particularly
useful. The ways and means of implementing this recommendation
depend very much on the kind of machinery that each State sets
up.
Such a recommendation should not lead to duplication with

Interpol's existing network, which operates very effectively.
However, it only enable ties to be forged between the domestic
authorities responsible for combating kidnappings followed by
ransom demands, after contracts have been made with the Or-
ganization or its National Central Bureaux. We are thinking, inter
alia, of cases in which the hostage's life is in imminent danger and
where his/her safety does not depend solely on the police and judicial
authorities normally responsible for prosecuting crime.
In cases where the machineries referred to would directly

exchange police information, the Interpol National Central Bureaux
concerned should be kept informed.
3. This recommendation provides for various measures to
be taken in order that, whenever a kidnapping case arises, the
authorities are prepared to deal with it in the best way.
a. The first point to make is that, once a person has
been kidnapped, the authorities are faced with an emergency.
This means, firstly, that decisions of a sometimes exceptional
character have to be taken urgently and, secondly, that ihe
most disparate departments and authorities have to work
together. For example, banking authorities may be called upon

to supply large sums of money, while the customs or exchange
control authorities may be aBked to authorize the transfer of
funds outside the country, and transport authorities will be
asked to provide certain types of transport. The armed forces,
the postal administration, prison governors, federal and local
authorities, etc. may also be called upon.
It was thought that, in order to preserve unity of deci-
sion-making and avoid dispersal of effort which might detract
from effective action, a global assessment of the situation
should be made in each case, with the participation of all
those actually or potentially involved in the various lines of
action. It might be envisaged in this context to set up a crisis
management team.
b. Police officers, prosecutors and judges responsible for
combating kidnappings should be acquainted with the technical
problems posed by such crimes and, more specifically, with the
psychological questions which arise from their contact with both
the kidnappers and the families of the victims.
c. When a kidnapping occurs, detailed plans of action
must be worked out for immediate implementation by a hier-
archical centralizing body commonly called a crisis manage-
ment team — which will be empowered to take exceptional
measures. In particular, these plans must contain guidelines
for the various police services, prosecutors, the people called
upon to maintain public order or provide medical, social and
psychological assistance both to the victim and to the family,
and finally the people responsible for liaison or coordination
with the media.
d. The successful conclusion of a kidnapping case
depends very much upon the reaction of the family and rela-
tives of the victim. Indeed, in typical caseB the kidnappers
address themselves directly to the family who, therefore, has
the burden of contacting the kidnappers. However, as was
Baid above, the family is confronted with a painstaking and
dilemmical situation which normally prevents it from having
a sound judgment of all the circumstances of the case. Moreo-
ver, it is crucial that the authorities in charge may have
constant contactB and cooperation from the family. It is,
therefore, very important that the family, to the extent that
they agree to it, be advised and assisted by qualified persons
402 I N T E R N A T I O N A L L A W A N D W O R L D POLITICA
(e.g., doctors, psychiatrists, social workers, etc.) in order to

help them overcome the stress of the situation. Furthermore,
such advice and assistance should be made available both to
the victim and his relatives after the conclusion of the case
because of the psychological and social consequences that often
show up several years after the incident.
4. A considerable degree of organization may be required
in order to kidnap a person, and consequently a group is frequently
involved. One way of thwarting a kidnapping, therefore, is to break
the solidarity of the criminal group. Information obtained in several
Council of Europe member-States reveals that this result can be
achieved by allowing the criminal authorities in charge of a kid-
napping case to give preferential treatment to a member of a group
who, of his own volition, has prevented or helped to prevent the
success of the kidnapping or has enabled the victim to be rescued
or led to the arrest of the kidnappers.
5. This recommendation is in conformity with Article 10 of

the Convention for the Protection of Human Rights and Funda-
mental Freedoms where the right to information is concerned.
The Committee preferred not to recommend cooperation be-
tween the media and the authorities, it being observed that press
representatives appear willing to assist the criminal authorities
only in the matter of saving the victim's life and not of finding the
kidnappers, their right to conduct their own investigations being
recognized.
The Committee also decided not to recommend the practice of

holding press conferences or issuing communiques.
It took the view that it could not propose any measures at
variance with the underlying imperative of its work on this matter,
namely the concern not to recommend anything which might
undermine the climate of confidence that must be created between
the authorities and the media.
However, the Committee considered that journalists and other
media professionals, being subject to the same obligations as any
other citizen, must not do anything to harm the interest of any
person, above all those of the victims.
6. It is pointed out that the Committee did not propose any
recommendation relating to certain specific issues mentioned in
its terms or reference, vis:
a. The freezing of the victim's assets or those of his

family is one method that h a s been applied by certain
prosecutors in Italy in order to prevent the ransom from being
paid a n d thus leave t h e authorities a free hand. The Commit-
tee was convinced that this kind of measure was likely:
i. to aggravate the situation of the victim and
hiB family unnecessarily. The family would then be faced
with a fresh dilemma — whether to comply with the
decision of t h e authorities or to disregard it and collect
the m e a n s to pay the ransom;
ii. to encourage a kidnapped person's family not
to inform the authorities at once that a kidnapping had
occurred; or
iii. to make the authorities morally responsible
for the victim's death.
b. The Committee took the view that, in most cases,
the intervention of an intermediary could not be ruled out, in
the interests of the victim himself. Consequently, it did not
see fit to recommend the specific criminalization of such acts.
Upon the other hand, it is inadmissible that a mediator should
act, not in the interests of the victim or his relatives but in
his own interests, and especially for gain. His action would
then appear to come within the scope of the law as possibly
making him an accessory to the crime; for this reason a further
criminal provision would not be justified either.
c. The Committee admitted the great value of profes-
sional or official secrecy. The claiming of such secrecy, by a
person bound to it by the law or a code of professional ethics,
might seem to place an obstacle in the way of the criminal
authorities dealing with a case of kidnapping followed by a
ransom demand. However, experience in various countries
shows that this is not a real problem: professional or official
secrecy can only be invoked to the extent that it is designed
to protect legitimate interests, within the limits of the pro-
fession or office in question.
Comments on the Recommendation*

One of the difficulties encountered in dealing with kidnap-
ping cases Btems from the fact that different police authorities
plus, in some cases, judicial authorities are called upon to inter-

vene. Moreover, as there may be uncertainty as to the place where
the kidnapping took place or where the victim is being held, infor-
mation from different material or geographical sources must be
collected and processed. The consequence iB that (a) the action of
the various police forces must be coordinated, and (b) they must
liaise with the judicial authorities, themselves acting in close
concert.
Recommendation No. R (82) 14 of the Committee of Ministers

to Member-States on Measures to be Taken in Cases of Kidnapping
Followed by A Ransom Demand (Adopted by the Committee of
Ministers on 24 September 1982 at the 350th meeting of the
Ministers' Deputies):
— The Committee of Ministers, under the terms or Article 15.b

of the Statute of the Council of Europe;
— Considering that the most serious acts of criminal violence
include a large number of kidnappings, followed by a ransom
demand, which are committed in several European countries;
— Aware of the effects on the public of such acts of criminal
violence and the public concern aroused by them;
— Emphasizing the conflicts which may arise between the le-
gitimate interests concerned, in particular between the life of
the victims of kidnappings, on the one hand, and the inter-
ests of the State in combating these manifestations of crime
and upholding the rule of law, upon the other;
— Noting the dilemna and the feeling of being torn between
different duties experienced by those called on to pay the
ransom, as well as the pressure exerted on them;
— Having regard to the difficulties encountered by the police
and judicial authorities in the exercise of their duties during
negotiations over the payment of a ransom and the liberation
of hostages;
— Anxious to coordinate and consolidate the measures taken by
the member-States to combat this phenomenon and wishing
to define a comprehensive policy which has become necessary;
— Convinced of the delicate position of the media which may, as
a result of the information they provide during such cases.
endanger the life or safety of the victim, harm members of

latter's family; relatives or third parties or hinder the au-
thorities' investigations;
Recommends that the government of member-States:
1. set up or reinforce the internal machinery needed to
coordinate the action of the various police authorities and to pro-
vide information for the judicial authorities to which cases of kid-
napping followed by ransom demands are referred;
2. examine the possibility of establishing or improving di-
rect communication between the machineries referred to in
paragraph 1 bearing in mind the organizational structures and
resources of Interpol for the purpose of rapid and efficient exchange
of information in this sphere;
3. be prepared to deal with kidnappings followed by ran-
som demands, in particular:
a. by ensuring that, in the event of a kidnapping, the
emergency arrangements necessary to safeguard the life of
the victim and bring the case to a successful conclusion can
be made by a permanent or ad hoc group comprising repre-
sentatives of the various authorities concerned;
b. by providing suitable professional and technical
training for the police officers responsible for combating such
crimes and the prosecutors and judges to whom such cases
are referred.
c. by drawing up operational plans to ensure that
the authorities are not caught off their guard by such kidnap-
pings.
d. by ensuring that the family and relatives of the
victim can be advised and assisted by qualified persons;
4. ensure that their legislation allows the competent judi-
cial authorities before which a case of kidnapping is brought to
take account in their decisions of the repentance of a kidnapper
and, in particular, of any action by that person having caused the
crime to miscarry, the victim to be freed or the kidnappers to be
arrested; and
5. ensure that an atmosphere of trust and cooperation
develops between the criminal authorities and the media so as to
promote the successful performance of their respective tasks in a
I N T E R N A T I O N A L L A W A N D WOULD POLITICS
kidnapping case involving a ransom demand while, on the one

hand, respecting both the secrecy of investigations and the
public's right to information and, upon the other hand, not under-
mining any legitimate interests involved, particularly those of the
victim.
_ oOo —
Chapter 9
THE FIFTH FUNDAMENTAL RIGHT:

THE RIGHT OF LEGATION OR
OF DIPLOMATIC INTERCOURSE
NECESSITY FOR THE RIGHT

To enable States to carry on friendly intercourse with one
another, they must possess what is commonly known as the right
of legation or the right of diplomatic intercourse. This__is not a
u B
'I'MHIAI rfTli r TH fight; H PHI pis nn lyZby_ common consent As
aptly pointed out in the Convention on Diplomatic Relations (signed
at Vienna on April 18,1961 and subsequently ratified by the Phil-
ippine Government), "the establishment of diplomatic relations
between States, and of permanent diplomatic missions, take place
by mutual consent." (Art. 2). For instance, as of today, the Repub-
lic of the Philippines has formal diplomatic intercourse with Russia
and China. The right to send envoys or establish diplomatic mission
is called the active, right of legation; the right to receive such
envoys or missions is the passive right of legation.'
United States Diplomatic and

Consular Staff In Tehran
ICJ [1960]
The rules of diplomatic law |are best described] gis "a
self-contained regime which, on the one hand, lavs <JR>wn the
receiving State^ffooTieaTjoîsreearding the facilities privileges,.
BHl
tne~~nriBWon and specifies the means at. the rlJFPP of thp.
receiving Estate to counter any such abuse."
'See Oppenhs^B, op. cit.. p. 691.
407
Note: In the case of the United States Diplomatic and

Consular Staff in Tehran (I960, ICJ 3), the International Court
of Justice upheld the principle of the inviolability of the
premises of a diplomatic mission and the correlative duty of
the receiving State's obligation to protect the personnel of the
mission. The circumstances were that in November 1979 a
strong group of militant Iranians overran the compound of
the Embassy of the United States at Teheran, seized build-
ings there, entered the Chancery and gained control of the
main vault, and also detained diplomatic and consular staff
and other persons as hostages. Embassy documents and ar-
chives were destroyed and ransacked or taken away.
On the facts, the Court held that it was satisfied that
the Iranian Government had failed to take appropriate steps
within the meaning of Article 22 of the Vienna Convention on
Diplomatic Relations to protect the premises, staff and ar-
chives of the mission against attack by the militants, or to
take appropriate steps to protect American consulates at
Tabriz and Shiraz. Other provisions of the Vienna Conven-
tion were relied upon, namely Article 25 imposing a duty on
a receiving State to accord full facilities for a mission to
perform its functions. Article 26 providing the freedom of
movement and travel of mission personnel, and Article 27
imposing a duty to permit and protect free communication on
the part of the mission for all official purposes. The analo-
gous or corresponding provisions of the Vienna Convention of
1963 on Consular Relations were relied upon so far as con-
cerned the consular staff held as hostages, and the American
consulates at Tabriz and Shiraz. The Iranian Government, so
it was ruled, had also failed in its duty to restore the status
quo and to bring the infringements by the militants to an
end.
The agents of diplomatic intercourse may he:

(1) Chiefs af States; or
(2) Subordinate Officials
(a) ceremonial officers — who represent their States in
such things as the inauguration of a new republic, coronation
THE FIFTH F U N D A M E N T A L RIGHT:
THE RIGHT OF LEGATION OR OF DIPLOMATIC INTERCOURSE
of a king, queen, and the like. E.g., Norodom Sihanouk of

Cambodia was proclaimed king on Sept. 25, 1993.
(b) political officers — they may either be:
1. delegates to international bodies or conferences
(example: the Philippine delegates to the U N )
2. chiefs of missions (example: ambassadors)
Generally, it is the Chief of a Stat* who îs th* finlo o r g a n nf

the nation in its externa) iflqf'Ifmc, and jte-eole representative
.with foreign nations?^ Thus, it is the President of a Republic (for
example) who shapes and formulates the foreign policy of the State.
In our country, the President appoints, sends, and instructs our
diplomatic and consular representatives on matters affecting in-
ternational diplomacy. In the formulation of foreign policy, it is
usual for consideration of expediency and national interest to
sometimes override those of courtesy and humanity.
Thru his diplomatic powers, the President may recognize a
new State or a new foreign government. It is only when the rec-
ognition is effected thru a treaty that the Philippine Senate shares
with him this power, thru its authority to concur in the treaty.
It iB) thus, universally recognized that the conduct of foreign
relations is essentially an executive function. In this vast external
realm, the President speaks and listens as the representative of
1
the nation.'
For the nature of diplomacy requires centralization of au-
thority and expedition of decisions which are inherent in executive
tradition. An essential characteristic of diplomacy is its confidential
nature. (People's Movement for Press Freedom v. Raul Manglapus,
et al., G.R. No. 84642, Sept. 13, 1988, En Banc Minute Resolution).
A complicated negotiation cannot be carried thru without many
private talks and discussions, man to man, many tentative sugges-
tions and proposals. Delegates from other countries come and tell
you in confidence of their troubles at home and of their differences
'Chief Justice Marshall, quoted in Writings of Thomas Jefferson, IX p. 256,

Mem. Ed.
'U.S. v. Curtiss-Wright Export Corporation, 299 U.S. 304.
with other countries and with other delegates; they tell you of
what they would do under certain circumstances and would not do
under other circumstances. If these reports should become public
who would ever trust the delegations in another conference?
Moreover, the President, not Congress, has the better opportunity
of knowing the conditions which prevail in foreign countries, and
specially this is true in time of war. He has his confidential sources
of information. He has his agents in the form of diplomatic, consular
and other officials. Secrecy in respect of information gathered by
them may be highly necessary and a premature disclosure of it is
productive of harmful results.
However, the execution of foreign policy cannot naturally be

entirely done personally by the President. Therefore, in our
Republic, it is the Secretary of Foreign Affairs, as head of the
Foreign Service of our government, who executes said policy thru
the various diplomatic and consular official In fact, according to
former Secretary of Foreign Affairs (now Senator) Arturo Tolentino,
while it is the President who appoints diplomatic officials like
ambassadors, it is the Secretary who can designate the countries
or places of assignment of said officials.
Diplomatic Relations
Rosalinda de Perio Santos v. Executive Secretary

Catali no Macaraig and Secretary Raul Manglapus
G.R. N o . 94070, April 10, 1992
(En Banc, Philippine Supreme Court)
Justice Carolina Grino-Aquino:

Petitioner Rosalinda de Perio-Santos, a career service
officer with the rank of Chief of Mission II and Ambassador
Extraordinary and Plenipotentiary was found guilty of dis-
honesty under Administrative Order No. 122 of the Office of
the President. Meted upon her, after appreciating certain
mitigating circumstances in her favor, was the penalty of
reprimand with a warning that a repetition of the same or
similar offense will be dealt with more severely. Then
President Corazon C. Aquino affirmed Assignment Order No.
58/88 dated April 27, 1988 of the Secretary of Foreign Affairs
recalling the petitioner to the home office from her post as
permanent representative to the Philippine Mission to the
THE FIFTH FUN DEMANTAL RIGHT: 411
T H E RIGHT OF LEGATION OR OF DIPLOMATIC INTERCOURSE
United Nations and other International Organizations in

Geneva, Switzerland.
The Supreme Court of the Philippines, while finding
petitioner innocent of the charges of dishonesty or misconduct
and thereupon opining that the reprimand meted upon her
person was unmerited, nevertheless, held that it (Court) is
not disposed to disturb the order of the Department of For-
eign Affairs ( D F A ) and the Office of the President recalling
the petitioner to the home office.
Considering that the conduct of foreign relations is pri-
marily an executive prerogative, courts may not inquire into
the wisdom or unwisdom in the exercise thereof. This is a
principle laid down by the courts from time immemorial. The
power to conduct foreign policy and its necessary element of
assigning the country's representatives abroad is best ad-
dressed to the wisdom of the executive branch and not to be
unduly interfered with by the judiciary. (U.S. v. Curtiss Wright
Export Corp. 299 U.S. 304).
Stated otherwise, the presidential prerogative to deter-
mine the assignment of the country's diplomatic personnel is
unquestionable. The conduct of the country's affairs is vested
on the President thru the head of the DFA, and who is
mandated by law to maintain the country's representation
with foreign governments, the United Nations ( U N ) , Asso-
ciation of Southeast Asian Nations ( A S E A N ) , and other in-
ternational and regional organizations. The foreign service
officers and employees abroad are under the supervision and
control of the Chief Executive thru respondent Secretary. Thus,
the assignment to and recall from posts of ambassadors are
prerogatives of the President, for he to exercise as the exi-
gencies of the foreign service and the interests of the nation
may from time to time dictate.
In the same vein, the recall order issued by the Secre-
tary of Foreign Affairs (Assignment Order No. 58/88) was a
valid exercise of his authority as an alter ego of the Presi-
dent. (Villena vs. Secretary of Interior, 67 Phil. 451). His order
recalling the petitioner to the home office, having been af-
firmed by the President, any doubts as to its validity and
propriety are thereby been laid to rest.
On two (2) occasions (at least), the President or the Chief
of State of any country may conduct diplomatic intercourse

personally:
(1) when he attends and participates in S U M M I T
CONFERENCES — (those entered into by the Chief of State
in an attempt to solve international problems)
(2) when he visits foreign Stales officially.
NOTE: When the visit is official, the Chief of State is
entitled to full diplomatic honors and privileges. Theoretically,
he is not supposed to discuss important State matters in the
course of the social visit. However, in practice the opportunity
to discuss such problems is tempting.
NOTE: Sometimes, he may decide to make his visit
incognito. If this is done without the knowledge of the au-
thorities of the State visited, he cannot claim diplomatic
immunity, unless he decides to reveal and prove his identity.
If the incognito visit is with the knowledge of the State
concerned, he gels diplomatic privileges; however, to preserve
the "unofficial" character of the mission, he does not get
ceremonial honors.
(NOTE: An important member of the family of the Chief

of State, e.g., ihe Crown Prince of Japan, heir-apparent to
the throne, may also be accorded diplomatic privileges in case
of a visit to the Philippines; protocol may even be temporarily
set aside to enable the President himself to welcome the
distinguished visitor. This, of course, presupposes the visit to
be "officiar and not "incognito.")
The principal assistant of the Chief of State in diplo-
matic intercourse is generally referred to as the Secretary or
the Minister of Foreign Affairs. In the United Slates, he is
known as the Secretary of State. It has been held that oc-
casionally, an official written statement of the Secretary of
4
Foreign Affairs may be binding on his government. The
statements of then Vice-President Salvador B. Laurel, in his
capacity as Secretary of Foreign Affairs in the A S E A N (As-
sociation of Southeast Asian Nations: Philippines, Malaysia,
Singapore, Indonesia, Brunei, and Thailand — formed for
'See Legal Status of Eastern Greenland, Permanent Court of Intern;iLnm;il

Justice, 1923, Series A/B, No. 53, p. 22.
THE FIFTH FUNDAMENTAL RIGHT; 413
economic, cultural, and educational purposes) conference re-

flected the official stand of the Philippine Government. Press
comments however, of foreign office officials, such as those
made by then Acting Secretary of Foreign Affairs Salvador
Lopez, on the Philippines' claim to North Borneo (Sabah),
reflected merely his [Lopez'] private opinion on the matter,
5
according to then President Diosdado Macapagal. This is so
because the official stand of the Philippine Government was
then still in the process of formulation.
At the Congress of Vienna of 1815 and the Congress of Aix-

la-Chapelle of 1818, four (4) classes of diplomatic officers were
designated as chiefs of diplomatic missions. The classification is
generally still followed today:
(4) ambassadors — (they are the political, cultural, eco-
nomic, and social representatives of their country to a foreign State;
their offices are referred to as embassies);
f2) ministers plenipotentiary or envoys extraordinary (min-
isters with a special function usually, the signing of a treaty);
(3) ministers resident (they are the political, cultural, eco-
nomic, and social representatives of their country to a foreign
principal city; their offices are known as legation)
(NOTE: The Philippines has an ambassador to the United
States; it has also ministers to certain U.S. cities, e.g., New York
and San Francisco. While the ambassador is the personal repre-
sentative of the Chief of State, the minister plenipotentiary and
the minister resident generally are not personal representatives).
(44 the charges d'affaires (literally, in charge of affairs) are
those officially below the rank of the ministers resident; in the
absence of the latter they take their place. In common practice,
the term charges d'affaires haB been used to designate the people
temporarily in charge, no matter what their official rank or des-
ignation may be.
NOTE: While the first three officials are accredited from Chief
of State to Chief of State, the charges d'affaires are accredited from
'Manila Times, April 2, 1962.

Foreign Office to Foreign Office. They are all, however, entitled to

gun (cannon) salutes: ambassadors (19 guns); ministers plenipo-
tentiary and ministers resident (15 guns); and charges d'affaires
6
(11 guns).
The chief functions of diplomatic officials are:
(1) to represent their State in negotiations with the State to
which they are accredited;
(2) to observe and report on occurrences, conditions, and
developments in the receiving State which may vitally affect their
home-States;
7
(3) to protect the nationals of their State, within the limits
permitted by international law;
(4) to promote friendly relations between the sending State
and the receiving State, and develop their economic, cultural, and
scientific relations;
(5) to perform ordinary consular functions, if so desired by
the sending State. (See Art. 3, Vienna Convention on Diplomatic
Relations).
The personnel of the diplomatic representatives may consist
of two (2) groups:
(1) the personal entourage — consisting of the members of
his family as well as the members of his household;
(2) the official entourage — which may include a counselor,
various secretaries, attaches, clerks, interpreters, chaplains, and
doctors.
THE FOREIGN DIPLOMATIC CORPS

(y> in a country — consists of all the foreign diplomats
accredited to a particular country (the head of this group is called
the DOYEN or DEAN who is usually the papal nuncio or legate -
with the rank of ambassador; if there is none, the oldest ambas-
sador is chosen as the Doyen).
'See Wilson and Tucker. International Law, p. 169.

'Ibid., p. 170.
T H E FIFTH F U N D E H A N T A L RIGHT: 415
NOTE; Parenthetically, it must be stated that the equivalent

of ministers plenipotentiary in the representatives from the Vati-
6
can City are called papal internuncios).
(21 of a country — this refers to the entirety of our diplo-
matic officials abroad.
DIPLOMATIC PROTOCOL
The term "diplomatic protocol" is defined as "the totality of
norms and rules which determine the external forms of relations
between States, of diplomatic intercourse; it is a political instru-
ment of diplomacy and creates a framework within which diplomatic
activities are realized." (David Dreimann, Das Diplomatiscke
Protokotl (1983]).
According to Dreimann: To diplomatic protocol, which by its
nature is universal, there applies the inalienable principle that
the same rules of protocol...apply to all States, independently of
their socio-economic character and their political, economic, and
military strength. This rule results from the democratic principle
of international law of equality and equal rights of all States."
Dreimann mentions three "specifically socialist" points in
the realm of diplomatic protocol.
First, the protocolar position taken by the general secretar-
ies, first secretaries, and members and candidates of the political
bureaus of "the Marxist-Leninist parties in the socialist States."
Second, the use of the term "comrade" in the Communist
States in correspondence with "personalities" from socialist States.
Consequently, the title "Excellency" does not have any meaning in
the practice of diplomatic intercourse between socialist countries.
Third, one is informed that the. cutaway is not used in socialist
countries. In capitalist countries, tails and dinner jackets are still
frequently worn, and "for this reason these garments also belong,
there, to the basic equipment of diplomats from socialist countries."
These, then, are all differences. No "new socialist principles"
are established. Common sense statements are made such as: "Only
big and rich States are economically able to keep their pwn em-
bassies in all States with which they have diplomatic relations."
"See Fen wick. op. eit.. pp. 264-265.

All the rules of diplomatic protocol, w r i t t e n or u n w r i t t e n , are

accorded with the strictest reBpect for r a n k , title, proper dress,
etc., including the sampling of visiting cards a n d the wearing of
decorations. Or the giving of such good advice as, "First one should
serve the ladies," "Do not talk with your m o u t h full," do not go out
with your shoes uncleaned" or "Do not pull your hat over your eyes
and do not tilt it back," as well as the routine, day-to-day situa-
tions relating to diplomatic protocol such as diplomatic parties
and "flag protocol."
In some institutions of diplomatic law, one example: while

dealing with the agrement, its refusal does not represent an un-
friendly act vis-a*-vis the sending State. Be it noted that this al-
legation is too categorical because under certain circumstances a
refusal may be seen as such.
Recall that in 1983, after Kuwait "rejected" a n e w U.S. am-

bassador because he had served in Israel, a State Department
spokesman said "the rejection means the po6t of ambassador to
Kuwait will be vacant indefinitely." Kuwait apologized, saying it
did not wish to harm relations with the U.S. (Cf. Christian Science
Monitor, Aug. 18, 1983, p. 2).
kPPOINTMENT OF DIPLOMATIC OFFICIALS

Appointment to the diplomatic service is a delicate thing for
if an ambassador or minister-designate is considered persona non
grata by the receiving State, he may be refused recognition as
such. To avoid embarrassment, States under the 1961 Vienna
Convention have to resort to ansiirfbrmal inquiry (enquiry) as to
the acceptability of a proposed envoy and to an informal conformity
(agrement) the receiving State is not obliged to give reasons to the
9
sending State for a refusal of agrement. (Art. 4. No. 2, 1961 Vi-
enna Diplomatic Convention).*The entire informal process is called
•$greatiol£$ A formal appointment is then made. To announce
publicly the appointment of ambassadors or ministers without the

preliminary steps indicated hereinabove would be to commit a
diplomatic faux pas for embarrassment may be invited. The envoy
is generally armed with the following papers:
(Jr) a letter of credence flettre de creance) (this gives the name
of the representativeTTus rank, the character and general object of
*See Oppenheim, op. cit., p. 702.

THE FIFTH FUNDAMENTAL RIGHT: 417
his mission; it also contains a request for favorable reception and

full credence; it iB sealed, but the ambassador is furnished several
carbon copies [or photocopies] thereof);
(2) a diplomatic passport (this authorizes his travel and
describes both his person and his office);
(3) hitrfM*frilc44oiM'[special diplomatic agents receive a
document of general full powers (pleins pouvoirs) with authority to
negotiate on extraordinary or special business];
(4) the cipher or code or secret key (for communication with
his country).
( N O T E : In diplomatic semantics, the phrase "diplomatic
pouch" does not technically exist. However, the term is used col-
loquially to mean "diplomatic carrier," which really refers to dip-
lomatic correspondence which is being carried, and which is,
thereforei,,exempt from inspection and censorship. In a popular
sense, ji includes the pfflion,"^bjjpBraCT of diplomatic representa-
tives which shall be immune from* seizure,>
When the envoy arrives at the place of destination, he sends
a copy of the letter of credence to the Minister (or Secretary ) of
Foreign Affairs of the foreign State, and requests, if he be an
ambassador or a minister, for a formal audience with the Chief of
State. In the reception, he formally hands over to the Head of
10
State the sealed letter of credence.
ACCREDITING MISSION TO TWO OR MORE

STATES OR TO INTERNATIONAL ORGANIZATION
The sending State may, after it has given due notification to
the receiving States concerned, accredit a head of mission or as-
sign any member of the diplomatic staff, as the case may be, to
more than one State, unless there is express objection by any of
the receiving States. If the sending State accredits a head of mis-
sion to one or more other States, it may establish a diplomatic
mission headed by a charge'd'affaires ad interim in each State where
the head of mission does not have his permanent seat. A head of
mission or any member of the diplomatic staff of the mission may
act as representative of the sending State to any international
"See Wilson and Tucker, op. cit., p. 174.

416 rNTERNATl O N A L L A W A N D W O R L D POLIT1C8
organization. (Art. 5, Nos. 1, 2, and 3, Vienna Diplomatic Conven-

tion of 1961).
ACCREDITATION OF SAME PERSON

BY TWO OR MORE STATES
Two or more States may accredit the same person as head of
mission to another State, unless objection is offered by the receiv-
ing State. (Art. 6, Vienna Diplomatic Convention of 1961).
APPOINTMENT OF STAFF MEMBERS

Subject to certain restrictions, the sending State may freely
appoint the "members of the staff of the mission" (the members of
the diplomatic staff, of the administrative and technical staff, and
of the service or domestic staff of the mission). In the case of
military, naval, or air attache's, the receiving State may require
their names to be submitted beforehand, for its approval. (Art. 7,
Vienna Diplomatic Convention of 2961).
In the absence of specific agreement as to size of the mission,

the receiving State may require that the size of a mission be kept
within limits considered by it to be reasonable and normal, having
regard to circumstances and conditions in the receiving State, and
to the needs of the particular mission. (Art. II, Vienna Diplomatic
Convention of 1961).
DIPLOMATIC IMMUNITIES AND PRIVILEGES
While traditionalists insist that diplomats are accorded cer-

tain diplomatic immunities and privileges because of exterritoriality,
and while modernists say that diplomatic functions necessitate such
rights, an American delegate to an international conference on the
proposed codification of diplomatic immunities was heard to say:
"There is no right in international law to diplomatic immunities.
The United States accords diplomatic immunities and privileges
only insofar as these are deemed expedient by the municipal laws
of our country." Indeed it would seem that despite continued ad-
herence to the custom of the international community of granting
diplomatic privileges ^this matter is generally governed by a State's
own national law. In the Philippines, Rep. Act No. 75 in addition
to the 1961 and 1963 Vienna Conventions on Diplomatic and
Consular Relations, respectively, is one of our controlling laws on
THE FIFTH FUNDEMANTAL RIGHT: 419
the matter. Traditional usage accords the following diplomatic

immunities and privileges:
Or) personal dignity and inviolability of the diplomatic en-
voy: (Under Rep. Act No. 75, any person who inflicts physical
harm on him is penalized by imprisonment of not more than three
years A N D a fine not exceeding two hundred pesos, in addition to
the proper penalties under the Revised Penal Code. This is,
however, conditioned on reciprocal provisions in the State of the
11
envoy.
(2-} inviolability of the official residence, archives, and let-
ters: (Thus, service of official processes is prohibited, without prior
consent.).
(3) freedom to communicate on official matters with the
home State and with the envoy's nationals.
(44 exemption from local criminal and civil jurisdiction for
official and private acts.
( N O T E : They may not be sued, but if they commit an irre-
sponsible act, they may be dismissed or recalled. Diplomatic
privilege does not import immunity from legal liability but only
2
exemption from local jurisdiction.' A suit for legal separation may
11
be dismissed on the ground of diplomatic immunity.)
( N O T E : On this point Rep. Act No. 75, approved Oct. 21,
1946. says:
"J8ec. 4. Any writ or process sued out of or prosecuted by
any person in any court of the Republic of the Philippines, or
by any judge or justice, whereby the person of any ambassador
or public minister of any foreign State, authorized and received
as such by the President, or any domestic servant of any such
ambassador or minister is arrested or imprisoned, or his goods
or chattels are distrained, seized, or attached, shall be deemed
void, and every person by whom the same is obtained, or
prosecuted, whether as party or as attorney, and every officer
concerned in executing it, shall upon conviction be punished
by imprisonment for not more than three years and a fine not
exceeding two hundred pesOB in the discretion of the court.
"Sees. 6 and 7.
"Dickinson v. Del Solar, 1 K.B. 376.
" T t i a i v v. Twang. 86 N . Y . S . 2nd p. G66.
"Sec. 7. The provisions of this Act shall be applicable

only in cases where the country of diplomatic or consular
representatives adversely affected has provided for similar
protection to duly accredited diplomatic or consular repre-
sentatives of the Republic of the Philippines by prescribing
like or similar offenses herein contained.")
[NOTE: Under the Vienna Convention on Diplomatic

Relations — signed at Vienna, April 18, 1961 — and already
ratified by the Philippine Government — we have Art. 31
which says:
"1. A diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving State. He shall also enjoy
immunity from its civil and administrative jurisdiction, ex-
cept in the case of:
(a) a real action relating to private immovable
property situated in the territory of the receiving State,
unless he holds it on behalf of the sending State for the
purposes of the mission;
(b) an action relating to succession in which the
diplomatic agent is involved as executor, administrator,
heir, or legatee as a private person, and not on behalf of
the sending State;
(c) an action relating to any professional or
commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions.
"2. A diplomatic agent is not obliged to give evidence
as a witness.
"3. No measures of execution may be taken in respect
of a diplomatic agent except in the cases coming under sub-
paragraphs (a), (b), (c) of paragraph I of this article, and
provided that the measures concerned can be taken without
infringing the inviolability of his person or of his residence."]
(5) exemption from being subpoenaed as a witness or
from being forced to give testimony thru a deposition;
(6) exemption from taxation and customs duties;
(NOTE: This is granted because of international cour-
tesy).
(7) right to display the national flag and coat of arms

in the proper buildings;
(8) .freedom of movement within the territory;
(9) right of transit thru third States;
jjftfPTTE: A diplomat in transitu would be entitled to the
u
same immunity as a diplomat in situ.)
410) freedom of religion:
(11) right to exercise jurisdiction within hi8 residential
and official domicile (thus, he may, for instance, arrest a
member of his suite);
(12) right to precedence and to certain ceremonial
15
honors, according to rank;
16
(13) right to grant asylum (in certain instances).
INVIOLABILITY OF DIPLOMATIC PREMISES
Fatemi v. United States

192 A L 2nd 52S
DC .Ct. A . , July 12, 1963
(AJTJ- — Vol. 58, Jan. 1964, N o . 1, p. 192)
FACTS: Fourteen Iranian students entered the Iranian
Embassy in the United States to protest against the Iranian
land reform referendum. The Iranian Minister ordered the
students to leave the premises. When they refused to do so,
the Minister requested that the local authorities arrest them.
The U.S. Police thus arrested the students for unlawful en-
try.
ISSUE: Was the arrest lawful?
HELD: Yes, the arrest was lawful. In the first place, a
foreign embassy is not to be considered the territory of the
sending State. Secondly, the local police hastile authority and
responsibility to enter a foreign embassy, if the privilege of
"Bergman* v'. de Sieyet, 170 F. 2nd 360.

"Oppenbdm, op. cit.. pp. 627-631.
"Ibid.
diplomatic inviolability is N O T I N V O K E D when an offense is

committed therein in violation of local law.
NOTE: Anent the inviolability of the premises, the fol-
lowing rules are apropos:
(1) the premises of the mission shall be inviolable. The
agents of the receiving State may not enter them, except with
the consent of the head of the mission.
(2) the receiving State is under a special duty to take
all appropriate steps to protect the premises of the mission
against any intrusion or damage and to prevent any distur-
bance of the peace of the mission, or impairment of its dig-
nity.
(3) the premises of the mission, their furnishings and
other property thereon, and the means of transport of the
mission shall be immune from search, requisition, attach-
ment, or execution. (Art. 22, N.os. 1, 2, and 3, Vienna Dip-
lomatic Convention of 1961).
WAIVER OF IMMUNITIES
Waiver of diplomatic immunities and privileges is allowed. If*
purely personal, the individual concerned may make the waiver; if
the right isTfot personal but official, the home government must
make the waiver in behalf of the chief of mission. In the case of
subordinates, the waiver of a non-personal right is done either by
the home government or by the chief of mission himself.
Waiver may be effected in the following ways:
(1) express waiver — as already discussed;
(2) implied waiver — failure to assert immunity at the time
of suit;
(NOTE: Waiver of immunity from suit does not necessarily
carry with it waiver from execution).
(3) presumed waiver — when the envoy himself sues, he
necessarily should allow a counterclaim against himself if it should
arise from the same transaction; and sometimes even if the
17
countersuit comes from an unrelated claim.
''•See National City Bank of New York v. Rep. of China, 348 U.S. 356.
THE FIFTH F U N D E M A N T A L RIGHT: 423
The Asian Development Bank ( A D B ) , an international finan-

cial institution (second only to the World Bank as a Bource of
cheap funds for infrastructure and productive enterprises in Asia),
has in its Charter a provision enabling the bank to effectively
fulfill its purpose and to carry out the functions entrusted to it.
Henceforth, its status, immunities, exemptions and privileges shall
be accorded to the Bank in the territory of each member. Art. 49
of the Charter reads: T h e Bank shall possess full juridical person-
ality, and, in particular, full capacity: ( i ) to contract; (ii) to acquire,
and dispose of immovable and movable property; and (iii) to in-
stitute legal provisions. Arts. 50-58 of the Charter allows for a
waiver of immunities, exemptions, and privileges.
DIPLOMATIC NOTE
Khosrow Minucher v. Court of Appeals and Arthur

W. Scalzo, Jr.
G.R. N o . 97765, September 1992
Philippine Supreme Court
Justice Hilario G. Davide, Jr.:

FACTS: Khosrow Minucher, a labor attache of the Ira-
nian embassy in Manila, met Arthur W. Scalzo, Jr., a member
of the United States diplomatic mission in the Philippines
and agent of the Drug Enforcement Agency (DEA), in 1966
thru a Filipino go-between.
Scalzo was interested in Persian carpets and caviar
supplied by Minucher, who, upon the other hand, wanted the
American's intervention in the U.S. visa problem of his Iranian
friend and countryman. The former got two sets of Persian
carpets from Minucher w h o was paid $24,000 for the goods.
Minucher, upon the other hand, gave $2,000 to Scalzo for the
visa of his Iranian friend.
With the help of U.S. and Filipino drug enforcement
agents, Scalzo led the raid on Minucher's residence for alleged
drug trafficking. The $24,000 paid by Scalzo for the carpets
was seized during the raid. Minucher and his friend stayed
at the military stockade for three days. When the case was
filed with the Regional Trial Court (RTC), however, said court
dismissed the charges againBt the two Iranians.
Minucher, after acquittal in 1986, filed a civil case against

Scalzo and wanted to recover the $24,000 for the carpets, the
$2,000 for the visa, on top of P5.3 million in damages.
Scalzo twice asked the trial court to give him more time
to file his answer, claiming that his case was under study by
the U.S. State Department and the Department of Justice.
Meanwhile, Scalzo asked the RTC to dismiss the case, claiming
immunity from suit as contained in a "diplomatic note" issued
by the U.S. embassy in Manila on May 29, 1990. The dip-
lomatic note attested that the acts of Scalzo in raiding the
house of Minucher were in line with his official duties and
functions and asserted the immunity from suit of its agent.
The trial court denied the dismissal of the case. Henceforth,
Scalzo took the case to the Court of Appeals which granted
his plea. Minucher thus filed a petition before the Supreme
Court.
HELD: A mere diplomatic note from a foreign govern-

ment attesting to the immunity from suit of its agent in the
Philippines cannot extinguish the civil or criminal liability of
such agent when sued in his personal capacity.
While Scalzo claimed that the acts imputed to him were
done in his official capacity, "nothing supports this self-serving
claim other than the so-called 'diplomatic note."* Thus, while
the American stated before the trial court that he would
present documentary evidence consisting of records on inves-
tigation and surveillance to prove the charges he filed against
the two Iranians, he failed to do as he said.
[Nota Bene: With this ruling, the Supreme Court directed
the Manila RTC to proceed with the civil case filed against
Scalzo.]
ABUSE OF DIPLOMATIC PRIVILEGES AND IMMUNITIES:

THE UK EXPERIENCE
There is generally good compliance with the law of diplo-
matic immunity because here, almost as in no other area of inter-
national law, the reciprocal benefits of compliance are visible and
manifest. Virtually every State that is host to a foreign diplomatic
mission will have its own embassy in the territory of the sending
State. Every State wants its own diplomats operating abroad, and
its own diplomatic bags, embassies and archives, to receive those
protections that are provided by international law. Honoring those

same obligations vis-a-vis the diplomatic community in one's own
country is widely perceived as a major factor in ensuring that
there is no erosion of the international law requirements on dip-
lomatic privileges and immunities. (Rosalyn Higgins, "The Abuse
of Diplomatic Privileges and Immunities: Recent United Kingdom
Experience," 79 AJIL 641).
Sometimes abuses do arise. Thus, on April 17, 1984, an or-

derly demonstration was held by Libyan opponents of Colonel
Qaddafi's Government, on the pavement in St. Jame's Square,
London, opposite the People's Bureau. Both the Foreign Office in
London and the British Ambassador in Tripoli had been warned
the day before t h a t if the demonstration were to be allowed to go
ahead, Libya "would not be responsible for its consequences." Shots
were fired from the windows of the Bureau, killing Woman Police
Constable Fletcher, who was on duty in the square. There was, as
might be expected, general outrage at these events. The public
and many legislators were clearly deeply disturbed that the inter-
national law of diplomatic immunity apparently prevented the
Bureau from being entered, and those responsible from being ar-
rested. More specifically, it was widely felt that diplomats acting
in a way incompatible with their diplomatic status should not
benefit from an immunity granted to assist the orderly conduct of
diplomatic relations. It w a 6 suggested that some way should be
found of searching diplomatic bags that were suspected of contain-
ing either drugs or weapons. And there was a widespread senti-
ment that premises which were a base for unlawful acts should
not be accorded inviolability. It was argued variously that a proper
interpretation of the Vienna Convention would support the view
that immunity and inviolability fell away when diplomats and
missions abused their position; but that if the Vienna Convention
made these desirable outcomes impossible, then the Convention
should be amended or denounced. (Ibid., pp. 643-645).
More difficult was the issue whether security in the Btreets

of London could and should be facilitated by changing the practice
regarding demonstrations outside embassies. Unlike the United
States and certain other States, the United Kingdom has no statu-
tory requirement prohibiting demonstrations within a specified
distance of diplomatic premises. The matter is simply dealt with
by local acts allowing for the direction of routes of processions and
demonstrations, the maintenance of order and prevention of ob-
struetions, and the control of public order generally. There is no

special power given to police commissioners in respect of offenses
at or near diplomatic premises. Article 22 of the Vienna Conven-
tion on Diplomatic Relations, placeB on the receiving state "a spe-
cial duty to prevent any disturbance of the peace of the mission an
impairment of its dignity." Art. 22 (together with other articles) is
given the force of law in the United Kingdom by the Diplomatic
Privileges Act of 1964. Is the peace of the mission or the impair-
ment of its dignity prevented by peaceful demonstrations in the
immediate vicinity? Or is the better view that Article 22 is not
meant to insulate the foreign mission from expressions of public
opinion within the receiving State (provided always that there is
free and safe access and egresB for the members of the mission,
and no real fear of danger to mission staff or damage to the
premises?) At the end of the day, terroristic abuse of diplomatic
status can be controlled neither by moving demonstrations away
from embassies nor by trying to amend the Vienna Convention.
What is needed is close coordination between the various parts of
government, and international security cooperation. Governments
must keep themselves more fully informed than they have some-
times appeared to be in the past, and should not, for the sake of
promoting trade or other reasons, seek to accommodate those who
are reluctant to conform to the requirements of the Vienna Con-
vention. Above all, those remedies available for abuse in the
Convention — especially the power to limit the size of the mission,
to declare a diplomat persona nnn-grata—should be used with
firmness and vigor, and not just reserved for matters related to
espionage. As is so often the case, legal means are at hand; but
they need to be matched by political will. (Ibid., pp. 650-651).
Dickenson v. Del Solar

1 ( L B . 376
FACTS: As a result of a vehicular accident, the First

Secretary of the Peruvian legation in London was sued. His
diplomatic immunity was waived, but he asked that in case
he would be ordered to pay t h e plaintiff, his insurer, the
Mobile and General Insurance Co. Ltd. should be made to
indemnify him. The Company claimed, among other defense,
that the First Secretary was not legally liable to the plaintiff
because of his diplomatic status, hence in no case should the
Insurance Co. be held liable for indemnification.
THE FIFTH FUNDEMANTAL RIGHT: 427
HELD: It is wrong to say that diplomats are legally

immune from liability for wrongful acts: the accurate state-
ment is that they are immune from suit (not liability). Now
then, since the immunity from suit has been waived, the
privilege can no longer be invoked. The Insurance Co. is,
therefore, liable for the needed indemnification.
•ASYLUM
The bright Of aaymmf is the authority of a State to allow an
alien who has sought refuge from prosecution or persecution to
18
remain within the territory and under its protection.
There are two (2) species of asylum:
X
VW 'tetntarial asylum? (refuge within the territory of the
sheltering Stale; the protUfllbn which a refugee obtains by escaping
to, or remaining upon, the territory of a State other than the State
that "wants" him, until the protection is terminated by his ex-
19
tradition.
(2) exterritorial amylmp (asylum in what are considered the

"extensions*~of-a GlaUs's LeTiitory). This type includes:
(a) asylum in foreign public ships;
(b) diplomatic asylum - the protection afforded by a
State to a refugee by granting him an asylum in or upon its
diplomatic buildings within the territory of the State that
30
wants him.
Brief Historical Sketch of Asylum

In ancient times, certain places gave sanctuary to those flee-
ing from persecution: these places in time began to embrace the
21
whole of a city or a State. When these places were abolished,
asylum seekers came to residences of diplomats, trusting in the
inviolability of their domiciles. Sometimes, the entire quarter or
district where the residence of the diplomat was located became
"See OppeDheim-Lauterpacht, Public International Law, Vol. I, p. 618.

"McNair, Law on Treaties, Vol. I I , p. 67.
"Ibid.
" S e e Moore, A Digest of International Law, Vol. II, p 756.
the place of immunity (franchise d'quartier). These quarters in the

18th century ceased to be places of refuge, but diplomatic a s y l u m ^
continued to exist." Traditionally, the right to grant asylum in
any form has never been recognized as part of international law."
This was also the stand of the United States in signing the
Convention on Asylum in 1928; the country stated that it "does
not recognize or subscribe to, as part of international law, the so-
called doctrine of asylum.*'* Such "right" is not yet a "general
25
principle of law" in the international legal order.
The Doctrine on Asylum Today

The doctrine on asylum may be summarized in the following
manner:
(1) With reference to territorial asylum — the right of a State
to grant asylum within its territory exists o n l y ^ l M l i il in us
1
stipulated i a i ^ W B t f or when it is justified hytmWBaWtod usagm
Of course, should a state rely on its "territorial supremacy" it can
always justify the grant.
(2) With reference to diplomatic asylum - asylum may be
granted only if:
(a) there is a treaty granting this right;
(b) established usage allows it but this should be con-
26
fined "within its narrowest limits';
(c) when the life, person, or liberty of the individual
seeking is threatened by imminent violence. (In other words?
there must be a compelling urgency for the grant; it is under-
stood that the asylum should be temporary and should exist
only for the duration of the emergency.)
Philippine Rules on Asylum

In the Philippines, diplomatic and consular officials have been
instructed NOT to grant diplomatic asylum to persons other than
M
S e e 2 Oppenheim, op. cit., p. 711.
"Moore, op. cit., p. 764.
"Hackworth, Digest of International Law. Vol. I I . p. 622.
Ôppenheim, op. cit., p. 677.
"Satow, A Guide to Diplomatic Practice, p. 205.
THE FIFTH FUNDAMENTAL RIGHT; 429
the members of the official or personal household. With reference

to these non-members "the extension of refuge to persons outside
the official or personal household of diplomatic or consular officers
can only be justified (in the absence of a treaty) on H U M A N I T A R -
I A N GROUNDS. Diplomatic and consular officers may afford refuge
to uninvited fugitives whose lives are in imminent danger from mob
violence but only during the period when active danger continues.
Refuge must be REFUSED to persons fleeing from the pursuit of
the legitimate agent of the local government. In case such persons
have been admitted, they must be either surrendered or dismissed
27
from the mission or the consulate."
The Case of Alfredo B. Saulo

Alfredo B. Saulo, former editor of the Star Reporter and al-
leged propaganda chief of the Huks in the Philippines sought on
November 12, 1958 diplomatic asylum inside the Indonesian
Chancery in Manila on the ground that under the Declaration of
Human Rights —
T. Every person has the right to seek and enjoy in
other countries asylum from persecution;
"2. The right may not be invoked in the case of pros-
ecutions genuinely arising from non-political crimes or for
acts contrary to the purposes and principles of the United
28
Nations."
Saulo incidentally had been accused in Philippine courts of
the crime of rebellion, murder, arson, and robbery. He had gone
into hiding in the mountain jungles sometime in 1950 and the
government had been looking for him for about eight years. In his
interview with reporters, Saulo made it clear that he was merely
seeking political asylum under the Universal Declaration of Hu-
man Rights; and that, therefore, he was not surrendering to the
Philippine authorities. Saulo also disclosed that some six months
before (May, 1958) he had tried to seek asylum in the same chancery
but Ambassador Nazir Datuk Pamontjak had rejected his offer;
his presence, therefore, in the same place on Nov. 12, 1958 was
29
the second time he sought asylum. The presence of Saulo at the
" N o t * 1, Foreign Service Regulations of the Philippines.

"•Art, X I V , Declaration of Human Right.
m
See the Daily Mirror. Nov. 12. 1958.
430 INTERNATIONAL L A W AND WORLD POUTICS
embassy was communicated to Secretary of Foreign Affairo (for

the Philippines) Felixberto Serrano by the Indonesian Ambassa-
dor; the latter also informed the Secretary that he was awaiting
appropriate instructions from his home government. The Secretary
impressed upon the Ambassador that Saulo was a "fugitive from
justice." While waiting for the decision of the Indonesian govern-
ment on the request of Saulo, the Philippine authorities threw a
cordon of policemen around the chancery to prevent any possible
30
escape of the refugee. For security reasons, Saulo was later kept
incommunicado in the embassy; after the car of the Times-Mirror
Publications had driven out of the embassy grounds, the gates
were closed by the guards, and no one was allowed to enter the
31
premises.
On November 13, despite Philippine hopes that Saulo would

be surrendered by the Indonesians in view of the information given
by the Foreign Office, the Embassy continued to keep Saulo under
its protective custody. Thereupon, Secretary Serrano formally
demanded from the Ambassador either "the immediate delivery of
the person of Saulo to the appropriate authorities of this (Philippine)
Government or . . . to aBk Saulo to leave forthwith the premises
of the chancery of your (Indonesian) Embassy." The Secretary
assured the public that the dignity and inviolability of the embassy
and of the Ambassador would be fully respected in accordance
with international diplomatic procedure.
Meanwhile, the Senate thru its committee on national defense

and security commented that neither Saulo had the right to be
given, nor the Indonesian Embassy the right to give, diplomatic
asylum because (1) there was no persecution, (2) there was no
imminent danger to Saulo's life, and (3) there was lacking that
sense of urgency and gravity which may in very exceptional cases
32
accord jurisdiction for the right of aBylum. Justice Secretary Jesus
Barrera endorsed the view of the Department of Foreign Affairs
that the Indonesian Embassy could not legally extend Saulo political
asylum but must turn him over to the Philippine government as
a "wanted fugitive from justice." Barrera said that for a person to
properly claim diplomatic asylum, three conditions must co-exist:
"Trivado Jimenez, T h e Right of Diplomatic Asylum," Far Eastern Law

Journal, Vol. V I , No. 4, January, 1S69, p. 441.
il
The Daily Mirror, Nov. 12, 1956.
"The Daily Mirror. Nov. 13, 1966.
THE FIFTH FUN DEMANTAL RIGHT 431
T H E RIGHT OF LEOATION OR OF DIPLOMATIC INTERCOURSE
that he is being prosecuted for a political offense; that he is in

danger of losing life or limb if released; and that the courts of the
33
land are corrupt. Not one of these requisites is present, he said.
Press dispatches from Djakarta quoted Indonesian Deputy
Prime Minister Hardi, who was then acting as the Foreign Min-
ister, as saying that the "Saulo Issue is to our (Indonesian) gov-
ernment an incentive towards the significance of having an ex-
tradition treaty between the Philippines and Indonesia." Sensing
an undertone of pressure for the formulation of a treaty of ex-
tradition before Indonesia would release Saulo, the Secretary told
the Indonesian ambassador on November 14, 1958 that "any
consideration of an extradition treaty can by no means be connected
with the resolution of the Saulo case." The problem, the Secretary
stressed, Bhould be settled in light of accepted usages of nations.
The Secretary continued that Saulo could not be entitled to dip-
lomatic asylum because of the absence of a treaty on asylum be-
tween the Philippines and Indonesia. Even assuming the existence
of such treaty, he pointed out, there were still certain requirements
to be fulfilled before the right could be validly granted, namely,
that the offense for which the asylum was sought be political and
that there was a great urgency for the grant. Saulo was accused
of non-political crimes and his life was never in imminent dan-
34
ger. Evidently, the Secretary was basing his stand on the court
opinion in the Haya de la Torre Case on Asylum by the Interna-
3
tional Court of Justice. *
The Indonesian Embassy, however, did not immediately re-

lease Saulo. R. Hardajo, Indonesian press attache, stated that his
government was standing firm on its terms (as submitted to our
Foreign Office): The international prestige of Indonesia was at
stake; therefore, any settlement should be in keeping with the
Bandung Conference of 1954 (the Conference or several Afro-Asian
Nations held at Bandung for mutual assistance and for the ami-
cable settlement of any dispute); therefore, also, any such settle-
ment must take into account the prompt determination of similar
36
cases in the future.
" T n « Manila Times, Nov. 16, 1958.

u
Jimenez, op. cit., p. 442.
"Judgment oT Nov. 20, 1950.
"See the Daily Mirror, Nov. 17. 1958.
Several days later (November 18, 1968), the Embassy turned

Saulo over to Philippine authorities: it must have been convinced
of the logic of the Philippine position on the matter; moreover it
was intensely desirable for friendship between the two countries
to continue.
Was the stand of the Philippines internationally justifiable?
It is submitted that it was.
(1) On the part of the refugee — (Saulo)
It is clear that Saulo had no right to ask for asylum firstly
because the Declaration of Human Rights speaks of a "persecution"
which is absent in the instant case; secondly, because he was
37
being prosecuted principally for ordinary crimes; thirdly because
even if he had been embraced by such Declaration (prosecution for
rebellion, inter alia, being really political) still the Declaration does
NOT automatically grant "legal rights": at most the Universal
Declaration of Human Rights contains nothing more than a mere
recommendation or a common standard of achievement for all
38
peoples and all nations. Indeed the logical question is not
whether Saulo had the right to ask for asylum but whether the
Indonesian Embassy had the right to grant it.
(2) On the part of the place of refuge (Indonesian Embassy).

The Embassy could not grant diplomatic asylum to Saulo because:
(a) no treaty on the matter exists between the Phil-
ippines and Indonesia;
(b) there is no custom on this point sanctioned by "es-
tablished usage between the two countries involved";
(c) there was no urgency for all because the life of
Saulo was never in imminent danger;
(d) this "right" has never been considered a general
38
principle of law in the international legal order. Indeed, the
father of International Law: Hugo Grotius has said: "Whether
the ambassador's house was to be an asylum for all who took
refuge there, depended upon the convenience of the sovereign
near where he resided, since it was not a part of the law of
3,
Sec. par. 2, Art. X I V . Universal Declaration of Human Rights.
'"See lehong v. Hernandez, L-7995. May 31. 1957.
Jfl
See Oppenheim, op. cit., p. 677.
THE FIFTH F U N D A M E N T A L RIGHT:
THE RIGHT OF LEGATION OR OP DIPLOMATIC INTERCOURSE
nations."*" The following modern authors, inter alia, agree with

Grotius: Wheaton, Hall, Fenwick, Hyde, Kelsen, Pradiere-
Fodere, McNair, Satow, et al. The envoy, however, may on
humanitarian grounds grant temporary asylum to persons in
imminent peril of their lives such as those fleeing from mob
1
violence* or "against the violent and disorderly action of ir-
2
responsible sections of the population."* While it may be
conceded that an envoy need not deny entrance to criminals
or accused persons desiring to take refuge in an embassy or
legation, apart from any treaty or established usage to the
contrary, he must surrender them to the government of the
receiving State at its request. If he refuses, any measure may
be taken to induce him to do so, short of such would involve
an attack on his person. The embassy or legation may be
surrounded by police authorities, and eventually the criminal
may even be forcibly taken out of the embassy or legation.
However, such measures of force are justifiable only if the
case is an urgent one, and after the envoy has been in vain
3
requested to surrender the criminal.* Principles of interna-
tional law "do not recognize any right of unilateral and de-
finitive qualification by the State granting diplomatic asy-
lum."**
Haya de la Torre Case

International Court of Justice
Reports, 1950, p. 274
FACTS: A Peruvian national, Haya de la Torre, a politi-
cal leader accused of having instigated a military rebellion in
Peru sought, and was granted, diplomatic asylum in the
Colombian Embassy at Lima on January 3, 1949. The refuge
was sought and granted three months after the suppression
of the military rebellion. The 192B Pan-American Havana
Convention on Asylum (to which both States, Peru and Co-
lumbia, were signatories) had laid down the rule that subject
*"Quoled in Moore, A Digest of International Law. Vol. II, p. 711.

"Ibid.
'"Jimenez, op. cit., p. 439.
"Oppenheim, op. cit., p. 797.
"Haya de la Torre Case, International Court of Juatice Re porta, 1950. p.
to certain conditions, asylum could be granted in a foreign

embassy to a political offender, a national of the territorial
State. Peru and Colombia agreed to submit to the Interna-
tional Court of Juetice their dispute on the following reasons:
(1) Was Colombia, as the State granting the asylum,
entitled unilaterally to "qualify" the offense committed by the
refugee in a manner binding on Peru?
(2) Was Peru required to afford guarantees to enable
the refugee to leave the country in safety?
(3) Was the grant of diplomatic asylum proper?
HELD: In its judgment of November 20, 1950, the Court
held that:
(1) Colombia cannot unilaterally make the qualifica-
tion: both countries must concur on whether or not the offense
involved allowed asylum.
(NOTE: The Court, however, said on this point that Peru
was not able to prove that Haya de la Torre was a common
criminal.)
(2) Peru is not required to afford guarantees to enable
the refugee to leave the country safely.
(3) The grant of diplomatic asylum is I M P R O P E R be-
cause the "urgency" prescribed by the Havana Convention
did not exist: the rebellion had been suppressed three months
previously. The essential justification of asylum lies in the
imminence or persistence of a danger to the person of the
refugee.
Second P a r t of the Case

FACTS: On the same day the abovementioned judgment
was rendered, Colombia filed a request for an interpretation:
does the judgment mean that the Colombian authorities ought
to surrender the refugee to Peruvian officials?
HELD: In its judgment of Nov. 27, 1950, the Court said
that the question raised by Colombia was a new question;
and it had not been previously presented in the preceding
case; and that, therefore, the Court could not decide upon it
by way of a mere interpretation. The Court further pointed
T H E FIFTH F U N D E M A N T A L RIGHT: 435
out that a request for interpretation could only be founded on

a dispute between the parties concerning the meaning of the
judgment, which dispute could not possibly have arisen as
yet because the request for interpretation had been submit-
ted on the very same day as the delivery of the previous
judgment.The Court, thereupon, dismissed the Colombian
request for interpretation.
The Third Part of the Case

FACTS: Because of the seemingly favorable judgment in
its favor, Peru called upon Colombia to surrender Haya de la
Torre. Colombia refused, maintaining that neither the ap-
plicable legal provisions nor the Court's judgment placed
her under an obligation to surrender the refugee to the au-
thorities of Peru.
HELD: In its judgment of June 13, 1951, the Court
upheld the refusal of Colombia. It declared that the question
was a new one, and that although the Havana Convention
expressly prescribed the surrender of common criminals to
the local authorities, NO O B L I G A T I O N of this kind existed
in regard to political offenders. While this judgment confirmed
the earlier ruling that asylum had been irregularly granted,
and that on this ground Peru was entitled to demand its
termination, the Court, nevertheless, said that Colombia was
not bound to surrender the refugee. The Court also said that
there are ways other than surrender of the refugee with which
to effect the termination of the asylum.
Other Important Instances of Asylum:

(1) General Juan Domingo Peron, stormy Dictator-President
of Argentina for ten years was forced by an insurrection to ask for
diplomatic asylum in the Paraguayan Embassy in Argentina on
Sept. 16, 1955. He was in mortal fear of his life. He was allowed
to stay in the Embassy; from there, he was conveyed to a Para-
guayan gunboat in the harbor of Buenos Aires. He was eventually
flown to Paraguay, after Bucceesful negotiations for a safe-conduct
pass. While enjoying "territorial political asylum" in Asuncion,
Paraguay, Peron issued a statement to the effect that he was still
"constitutional president" of Argentina, since he had never resigned
from such office. The Argentine Foreign Ministry then accused
Paraguay of not living up to its responsibilities under the Asylum

Convention: the Ministry said that Paraguay should have prevented
Peron from making the statement. The President of Paraguay
denied the accusation.** Peron to avoid further trouble enplaned
for Nicaragua whose President, Senor Anastacio Somoza, later
commented: "Peron is perfectly free to come to Nicaragua. As a
matter of fact the doors of Nicaragua are open to all citizens of the
Americas provided they are not criminals or communists."** Peron
then stayed for eight months in Panama with a residence permit
as a "political refugee; from there he went to Venezuela, and thence
to the Dominican Republic, where he was given permission to
remain indefinitely. Argentina accused the Dominican Republic of
allowing Peron to continue his political broadsides against Ar-
gentina; when the Dominican Republic countered by expelling the
Argentine envoy (he, the envoy, was ordered to leave in 24 hours),
Argentina suspended diplomatic relations with the country of
7
asylum.* Aside from Person, several other Argentines have left
their homeland. Among them was Sehor Miguel Revestido, First
Minister and former Central Bank President. Revestido was granted
diplomatic asylum in the Chilean Embassy in Buenos Aires, and
later, was given a safe-conduct pass by the new Argentine gov-
ernment to go to Chile."
(2) Jozsef Cardinal Mindszenty, Prince Primate of Hungary,

was a strong spiritual leader of his country who was tried by the
Hungarian Communist Government for allegedly plotting to
overthrow the Government. Found guilty in a trumped-up trial
(February 2-8, 1949) wherein British and American observers were
refused permission to witness, he was fortunately freed by Hun-
garian Freedom Fighters during the Hungarian uprising of 1956.
Because the revolt was short-lived, the Cardinal, to avoid death,
sought and was granted diplomatic asylum in the American Le-
gation in Budapest on November 4,1956."
(NOTE: In its 8th resolution or February 12, 1946 the Gen-

eral Assembly expressed the view that except in the case of war
criminals and traitors, political refugees cannot be compelled to
"See The Daily Mirror, Oct. 4 and 7, 1955.

"Daily Mirror, Nov. 3, 1955.
"See The Manila Times, April 12, 1956.
" S e e Estrada, "The Right of Asylum in International Law," I.E. Law
Journal, Vol. I I , No. 2. April, 1960, p. 183.
*'Se* The Daily Mirror, Nov. 5, 1957.
return to their countries of origin. International agreements gov-

ern the case of war criminals and traitors.)
O WHOM DIPLOMATIC IMMUNITY IS GRANTED

. Diplomatic immunity is generally given not only to the dip-
lomatic official concerned but also to>
(1) his personal retinue —.members of his family, including
dependpnt relatives who live with him;
(2) his official retinue —/this includes the counsellors,
secretaries, attaches, clerical and administrative personnel;
(3) hiB household retinue — like domestic servants provided
that the names of the servants have been transmitted to the Office
of the Chief of Police of Manila (thru the Department of Foreign
50
Affairs). The transmittal must be before service of judicial process.
(NOTE: Filipino citizens and inhabitants who are in the
service of foreign diplomatic missions are also granted diplomatic
immunity provided the registration hereinabove referred to has
been complied with, EXCEPT in the case of civil debts contracted
P R I O R to entry into the service)""
CAUSES FOR THE TERMINATION OF
A diplomatic mission may come to an end thru any of the

following causes:
^ r f * death of the envoy;
, ;Wf~ recall — (by his own home government which sends a
"letter of recall" (lettre de recreance);
(3L- dismissal — by the receiving foreign State (here, the
envey may have become persona non grata).
Examples:
i&r dismissal of the British minister in 1888 for alleged
606
interference in Presidential elections.
" S e e Sec. 5. Rep. Act No. 75

•"•Ibid
"••Hershey, p. 203.
438 INTERNATIONAL LAW AND WORLD P O L T T I C 8
(b) dismissal of the Spanish ambassador by Cuban

Premier Fidel Castro Tor allegedly insulting the latter in
Havana (I960).
(c) dismissal (here, there was also a recall) of the Cuban
ambassador from the Philippines for alleged subversive ac-
tivities (1961).
[NOTE:: "The receiving State may at any time and without
having to explain its decision, notify the sending State that the
head of the mission or any member of the diplomatic staff of the
mission is persona non grata or that any other member of the staff
of the mission is not acceptable. In any such case, the Bending State
shall, as appropriate, either recall the person concerned, or termi-
nate his functions with the mission. A person may be declared non
grata or not acceptable, before arriving in the territory of the
receiving State. If the Bending State refuses or fails to carry out
the aforesaid obligation, the receiving State may refuse to recog-
nize the person concerned as a member of the mission." (Art. 9, Nos.
I and 2, Vienna Diplomatic Convention of 1961).]
(4) rupture or disruption of diplomatic relations (this may
be brought about by diplomatic differences, e.g., disruption in 1960
of Cuban-U.S. and in 1961 of Cuban Philippine diplomatic rela-
tions; rupture of diplomatic relations in March, 1980, between the
U.S. and Iran because of the illegal detention of American hostages
by militant Iranian students at the American Embassy at Iran;
cancellation of diplomatic relations in April, 1980 between Egypt,
and other Arabian countries which held a summit conference
against the peace treaty concluded between Egypt and Israel, with
the help of President Jimmy Carter of the U.S.
(5) outbreak of war between the two States involved;
(6) revolutionary change of government in the sending or in
the receiving State;
(7) constitutional changes in the leadership of the sending
or receiving State, as in the case of the death, abdication, or de-
thronement of the Head of State by whom or to whom the diplo-
matic representatives has been accredited;
(8) extinction of the sending or receiving State;
(9) accomplishment or non-accomplishment of the mission
in instances where it has a SPECIAL or temporary nature;
THE FIFTH F U N D E M A N T A L RIGHT:
(10) expiration of the letter of credence (if only a limited

duration had therein been specified);
(11) change in rank or class such as a promotion to a higher
51
class of the envoy concerned.
HMMUNmES OF OFFICIALS OF INTERNATIONAL

ORGANIZATIONS AND OF DELEGATES TO
INTERNATIONAL CONFERENCES
Art. 105, par. 2 of the UN CHARTER says:
"Representatives of the Members of the United Nations
and officials of the Organization shall similarly enjoy such
privileges and immunities as are necessary for the independent
exercise of their function in connection with the Organization."
The Organization itself is referred to in Art. 105, par. 2 of the
same Charter:
"The Organization shall enjoy in the territory of each of
its Members such privileges and immunities as are necessary
for the fulfillment of its purposes."
Mendaro v. World Bank

717 F.2d 610 (U.S. Court of Appeals,
D.C. Cir., Sept. 27, 1983)
Appellant, SuBana Mendaro, brought, suit against her
former employer, the International Bank for Reconstruction
and Development (also known as the World Bank) in federal
court under Title V I I of the Civil Rights Act of 1964, alleging
various employment-related grievances. The district court
dismissed her action on the ground that the Bank's Articles
of Agreement did not, as appellant had argued, waive the
Bank immunity from suit as granted by the International
Organizations Immunities Act ("the Act"). The U.S. Court of
Appeals for the District of Columbia Circuit affirmed, hold-
ing: that the waiver clause in the Bank's Articles of Agree-
ment extended only to the Bank's external activities and
contracts and not to the internal administration of its em-
ployees.
6 1
See Oppenhnm. op. eit, pp. 728-733.
The Act confers juridical status on and grants immunity

to those international organizations in which the United States
participates as entitled to enjoy the provisions of the Act. The
Bank satisfies both of these prerequisites. Section 2(b) of the
Act sets forth the privileges enjoyed by qualified organizations.
"International organizations shall enjoy the same immunity
from suit and every form of judicial process as may expressly
waive their immunity for the purpose of any proceedings or
in the terms of any contract."
Appellant maintained that the Bank had waived its im-

munity with respect to appellant's suit by adopting Article
V I I I , section 3 of the Bank's Articles of Agreement, which
states in pertinent part: Actions may be brought against the
Bank only in a court of competent jurisdiction. No action
shall, however, be brought by members or persons acting for
or deriving claims from members. The property and assets of
the Bank shall, wheresoever located and by whomsoever held,
be immune from all forms of seizure, attachment or execution
before the delivery of final judgment against the Bank.
In appellant's view, the only instances in which the Bank

was immune were the two set forth in Article V I I I , section 3:
(1) in suits by members, and (2) in actions seeking prejudg-
ment attachments of Bank assets. If the Bank had wished to
preserve other immunities, appellant contended, it could have
done so expressly. The court, however, disagreed and declined
to construe the provision broadly.
Given the "somewhat clumsy and inartfully drafted lan-

guage" of the waiver provision, the court found it necessary
to examine "the interrelationship between the functions of
the Bank set forth in the Articles of Agreement and the
underlying purposes of international immunities." The fun-
damental rationale for any international organization's waiver
of immunity, the court observed, is that it might better achieve
its chartered objectives. This principle was expressly recog-
nized in the Bank's Articles: the purpose of the waiver pro-
vision is "[t)o enable the Bank's to fulfill the functions with
which it is entrusted." Thus, the question for the court was
whether a waiver of immunity from suits by employees al-
leging labor grievances under the local laws of the many States
in which the Bank does business would better enable the
Bank to achieve its basic purposes.
THE FIFTH F U N D A M E N T A L RIGHT: 441
The Articles of Agreement establish that the Bank's goals

are to assist its member nations to develop their territories,
promote and supplement foreign investment, and promote
long-range, balance growth in international trade. The court
observed that while amenability to suits by debtors, creditors,
bondholders and others similarly situated might be necessary
to ensure the marketability of the Bank's securities, employee
actions premised on internal administrative grievances would
expose the Bank to disruptive interference in its employment
practices in each of the 140 countries where it does business.
Noting that international treaty and customary law are in
accord, the court adopted the reasoning it had employed in in
one case involving similar employee action alleging breach of
employment contract against another international organi-
zation. In that case, the court had held that immunity from
employee actions is necessary to protect international or-
ganizations from unilateral control by a member nation over
the activities of the organization within its territories.
The United States has accepted without qualification

the principles that international organizations must be free
to perform their functions and that no member-State may
take action to hinder the organization. The unique nature of
the international civil service is relevant. An attempt by the
courts of one nation to adjudicate the personnel claims of
international civil servants would entangle those courts in
the internal administration of those organizations. Denial of
immunity opens the door to divided decisions of the courts of
different member-States passing judgment on the rules,
regulations and decisions of the international bodies. Under-
cutting uniformity in the application of staff rules or regula-
tions would undermine the ability of the organization to func-
tion effectively. Thus, the court held, although the Bank has
waived its immunity with respect to actions arising out of its
external relations with debts and creditors, it has not waived
immunity with respect to suits arising out of its internal
operations.
Officials of International Organizations:

As earlier indicated, officials of international organizations
like the U N , enjoy diplomatic privileges and immunities so that
they may have a free and independent exercise of their functions.
The judges of the International Court of Justice are given the

same rights." These officials do not act in the interest of their
particular State; they represent all the States included in the
organization; consequently, they enjoy the following privileges and
immunities:
(1) personal immunity from legal process with reference to
official acts;
(2) income tax exemption with reference to salaries paid by
the U N ;
(3) right to import, free from customs duties, their furniture
and effects;
(4) immunity from immigration restrictions and alien reg-
istration (this is also given their families and dependent relatives);
(5) immunity from national service obligations;
(6) right of repatriation facilities during international crises;
and
(7) right of exchange and currency facilities.
NOTE: These immunities and rights may be waived and
should be waived by the Secretary-General of the UN provided
that the waiver:
(a) would facilitate justice A N D
(b) UN interests would not be jeopardized.
NOTE: As will be observed, these officials may be arrested
should they commit crimes. The only persons exempted in this
matter are the UN Secretary-General, the UN Assistant Secretary-
General, their wives, and minor children — all of whom are ac-
corded all the privileges and immunities also given to diplomatic
envoys. It is the Security Council itself that may waive their
M
immunities.
In World Health Organization and Dr. Leonce Verstuyft v.
Hon. Benjamin H Aquino, et al., L-35131, Nov. 29,1972 (48 SCRA
251), the Supreme Court, thru Mr. Justice Claudio Teehankee
"Art. 19, Statute of the International Court of Justice.

u
S t e the General Convention on the Privileges and Immunities of the United
Nations.
THE FIFTH F U N D E M A N T A L RIGHT 443
(later to become Chief Justice and Permanent Philippine Repre-

sentative to the U N ) ruled that pursuant to the Host Agreement
executed on July 22, 1951 between the Philippine Government
and the World Health Organization, an officer of such Organiza-
tion assigned in Manila as Acting Assistant Director of Health
Service is entitled to diplomatic immunity, and as such a search
warrant for the search and seizure of his personal effects cannot
be lawfully issued.
In the same case, it was also ruled that:
(1) It is a recognized principle of international law and under
our system of separation of powers that diplomatic immunity iB
essentially a P O L I T I C A L QUESTION, and courts should refuse to
look beyond a determination by the executive branch of the gov-
ernment. (See Trost v. Tompkins, 44 A.2b 226); and where the plea
of diplomatic immunity is recognized and affirmed by the execu-
tive branch of the government (the Department or Ministry of
Foreign Affairs, for instance), it is the duty of the courts to accept
the claim of immunity upon appropriate suggestion by the principal
law office of the Government, the Solicitor-General in this case, or
some other officer acting under his direction. (See Ins. Co. 24 N.E.
2d 81, 281 N.Y. 362).
(2) It is settled principle that courts may not exercise their
jurisdiction by seizure and detention of property, as to embarrass the
executive arm of the government in conducting foreign relations.
(3) Assuming that the official concerned really abused dip-
lomatic immunity by bringing into our country 120 bottles of wine,
the proper remedy is to conduct consultations between our govern-
ment (thru the Department of Foreign Affairs) and the United
Nations Agency (the WHO). What the judge in this case should
have done was to quash the Bearch warrant previously issued, and
to forward his findings to the Department of Foreign Affairs.
Representatives of UN members and UN delegates to

International Conferences
During their journey to international conferences, while the

conferences are going on, and during the journey home, repre-
sentatives of UN members and UN delegates to said conferences
enjoy the following privileges and immunities:
(1) i m m u n i t y from personal arrest and detention;
(2) immunity from seizure of personal baggage;

(3) immunity from legal process of every kind in respect of
words spoken or written, and all acts by them in their capacity as
representatives;
(4) inviolability for all papers and documents;
(5) the right to use codes and to receive papers and corre-
spondence by courier or in sealed bags;
(6) exemption of themselves and their spouses from immi-
gration restrictions, alien registration, or national service obliga-
tions in the State' they are visiting or thru which they in the
exercise of their functions, pass;
(7) the same immunities and facilities with respect to their
personal baggage as are given to diplomatic envoys;
(8) the same facilities in connection with exchange or cur-
rency restrictions as are allowed representatives of foreign gov-
ernments on temporary official missions;
(9) other privileges and immunities of diplomatic envoys,
not inconsistent with the foregoing, except:
(a) exemption from excise duties;
(b) exemption from sales taxes; and
(c) exemption from customs duties on imported goods (oth-
erwise than as part of their personal baggage)."
^/CONSULAR OFFICIALS
In a broad sense, a consul is a commercial agent appointed by
his Government to reside in a foreign city, and permitted by the
foreign State to do so in order that he may watch over the com-
mercial rights and privileges of his own country therein, and thus
55
protect the rights of his country's nationals.
As to character, consuls are of two (2) kinds:
the consules missi (consuls de carriere) (consuls of ca-
" A r t . IV, Sec. 11, Convention on the Privileges and Immunities of the United
Nations, February 13, 1946. (Note: The Philippine* ia a signatory hereto.)
M
S e e Wilson and Tucker, International Law, p. 198.
reer) — theBe a r e professional consuls; as such, they are not al-

lowed to engage in any other profession or business; and
(2> the consules electi (honorary or commercial consuls) —
these are those selected by the appointing Government either from
its own citizens engaged in business in the country in which they
will be allowed to exercise consular functions, or from among the
nationals of the foreign State involved.
Regarding appointment, rank, and qualifications, it may be

said that these are matters of municipal law (consequently, not
properly a part of international law); traditionally, however, States
rank their consular officials in the following manner:
y ( ) consul-general-— he heads several consular districts, or
one exceptionally large consular district;
(2) consul — he takes charge of a small district or town or
port;'
I) vice-consul — he assists the consul; and
JA) consular agent — he usually is entrusted with the per-
formance of certain functions of the consul.
(NJ0TE: A pro consul is not really a conBul but one who takes
the place of a consul in the hitter's absence or temporary incapacity;
x
in short, he is a locum tenens.
Two (2) important documents are necessary before the as-
sumption of consular functions can be undertaken:
^ • t l ) the letters patent (lettre de provision) — this is the letter
of appointment or commission which is transmitted by the sending
State to the Secretary of Foreign Affairs of the country in which
51
the consul is to serve.
y0t the exequator — this is the authorization given by the
sovereign of the receiving Slate to the consul, allowing him to
58
exercise his functions within the territory. The exequator may be
granted conditionally; the grant may even be refused for any or no
reason; once granted, the exequator may be unilaterally withdrawn.
" S e e Feowick, International Law, p. 363.

" S e e Oppenheim, op. cit., 659.
"See Lawrence, Principle* of International Law, p. 297.
(NOTE: The exequator should not be confused with the letter

of credence; the firBt is given to a consul by the receiving State; the
second is issued to a diplomat by the sending or accrediting State;
the grant of an exequator is an ordinary or routine affair, while
the presentation of a letter of credence is usually accompanied by
59
pompous ceremonies.)
FUNCTIONS OF CONSULAR OFFICERS

A consul has such functions as may be stated in a pertinent
treaty, allowed by international usage, and provided by hiB national
law: generally, they are commercial, routinary, and administrative
in character. For instance, he issues visas (permits to visit his
country) as contradistinguished from passports (permits to leave
the country, and which are usually issued by the Department of
Foreign Affairs).
Art. 75 of the Family Code of the Philippines provides that

any consul-general, consul or vice-consul of the Philippines may
act as solemnizing officer in the case of marriages between Filipino
citizens abroad.
As spelled out under the 1963 Vienna Convention on Consu-
lar Relations, the consular functions are described in general terms:
(1) Protecting in the receiving State the interests of the
sending State and of its nationals, both individuals and bodies
corporate, within the limits permitted by international law.
(2) Furthering the development of commercial, economic,
cultural and scientific relations between the sending State and the
receiving relations between them in accordance with the provisions
of the Convention.
(3) Ascertaining, by all lawful means, conditions and de-
velopments in the commercial, economic, cultural and scientific
life of the receiving State, reporting thereon to the Government of
the sending State and giving information to persons interested.
(4) Issuing passports and travel documents to nationals of
the sending State, and visas or appropriate documents to persons
wishing to travel to the sending State.
w
S e e Penwick, International Law, p. 384.
THE F I F T H F U N D E M A N T A L RIGHT: 447
(5) Helping and assisting nationals, both individuals and

bodies corporate, of the sending State.
(6) Acting as notary and civil registrar and in capacities of
a similar kind, and performing certain functions of an adminis-
trative nature, provided that there is nothing contrary thereto in
the laws and regulations of the receiving State.
(7) Safeguarding the interests of nationals, both individuals
and bodies corporate of the Bending State in cases of succession
mortis causa in the territory of the receiving State, in accordance
w i t h the laws and regulations of the receiving State.
(8) Safeguarding within the limits imposed by the laws and
regulations of the receiving State, the interests of minors and other
persons lacking full capacity who are nationals of the sending
State, particularly where any guardianship or trusteeship is re-
quired with respect to such persons.
(9) Subject to the practices and procedures in force in the
receiving State, representing or arranging appropriate represen-
tation for nationals of the sending State before the tribunals and
other authorities of the receiving State, for the purpose of obtaining,
in accordance with the laws and regulations of the receiving State,
provisional measures for the preservation of the rights and in-
terests of these nationals, where, because of absence or any other
reason, such nationals are unable at the proper time to assume
the defense of their rights and interests.
(10) Transmitting judicial and extrajudicial documents or
executing letters rogatory or commissions to take evidence for the
courts of the sending State in accordance with international
agreements in force or, in the absence of such agreements, in any
other manner compatible with the laws and regulations of the
receiving State.
(11) Exercising rights of supervision and inspection provided
for in the laws and regulations of the sending State in respect of
vessels having the nationality of the sending State, and of aircraft
registered in that State, and in reBpect of their crews.
(12) Extending assistance to vessels and aircraft mentioned

in (11) above and to their crewB, taking statements regarding the
voyage of a vessel, examining and stamping the ship's papers, and
without prejudice to the powers of the authorities of the receiving
State, conducting investigations into any incidents which occurred
448 I N T E R N A T I O N A L L A W A N D WORLD P O L I T I CS
during the voyage, and settling disputes of any kind between the
master, the officers and the seamen insofar as this may be au-
thorized by the U W B and regulations of the sending State.
(13) Performing any other functions entrusted to a consular
post by the sending State which are not prohibited by the laws
and regulations of the receiving State or to which no objection is
taken by the receiving State or which are referred to in the in-
ternational agreements in force between the sending State and the
receiving State.
By way of a comment. Director R.G. Feltham of the Foreign

Service Programme of Oxford University, says:
T h e s e (consular] functions I listed hereinabove] may, with
the consent of all governments concerned, be exercised by a
consular officer on behalf of a third State. It will be noted
that in a substantial number of cases the right to act is not
absolute, but dependent on the law of the receiving State.
Also, despite the quasi-legal nature of many of his functions,
a consul is not a substitute for a lawyer or other specialist.
"A consular officer whose government has no diplomatic

representative in the State in which he is serving and is not
represented diplomatically by a third State may, with the
authority of his host State, and without affecting his consular
status, be authori[z]ed to perform certain diplomatic acts,
including the representation of his State at intergovernmental
organisations." (Feltham, Diplomatic Handbook [London:
Longman, 1986, p. 51]).
(NOTA BENE: More detailed provisions are included in many

bilateral conventions, and a comprehensive outline of consular
functions may be found in the Council of Europe, European Con-
vention on Consular Functions.).
CONSULAR PRIVILEGES AND IMMUNITIES

Generally, unless £ney~are* a1sd*giVen some diplomatic func-
60
tions, consuls are not entitled to diplomatic immunity. However,
they are granted such privileges and immunities as may be essential
for the proper performance of their consular duties. For instance:
" U . S . v. Wong Kim Ark., 167 U.S. 649.

(1) they are allowed freedom of communication in cipher or

otherwise;
(2) they are exempted from testifying on official commu-
nications or on matters pertaining to consular functions;
(3) they are exempt from military service or from jury and
militia service;
(4) they are permitted to place above the outside entrance
of the consulate the arms of their country and to display their
61
national flag;
(5) they are entitled to "special protection and considera-
62
tion" but not immunity in police and penal law except in M I N O R
63
offenses.
NOTE: For grave legal infractions, like the commission of the
crime of concubinage, consuls are NOT exempt from criminal and
64
civil prosecution. Similarly, an honorary consul of Uruguay at
Manila may properly be charged in the Manila Court of First
Instance (now Regional Trial Court) with the crime of falsification
65
of a private document. It should be borne in mind, however, that
in the absence of a treaty stipulation:
(1) consulates are required to accept service of legal proc-
esses provided due consideration i6 given to the official position of
66
the consular officials.
(2) the rules for the grant of consular asylum are identical
6
with those for diplomatic asylum. '
[NOTE: Under the Vienna Convention on Consular Relations
— signed at Vienna, April 24, 1963, and already ratified by the
Philippine Government —
6
'See Hershey. pp. 303-305.
f2
Mexico, v. U.S. — United States — Mexican Claims Commission. 1927,
p 254.
"See Wilson and Tucker, op. cit., pp. 180-181.
"People v. Schneckenburger, 73 Phil. 413.
^Schneckenburger v. Judge Moran, 63 Phil. 249.
"See Hackworth, Digest of International Law, Vol. IV. p. 714.
;
* See Note No. 1, Foreign Service Regulations of the Philippines.
(1) Consular officers shall not be liable to arrest or deten-

tion pending trial, except in the case of a g r a f e crime and pursuant
48
to a decision of the competent judicial authority.
(2) Consular officers and consular employees shall not be
amenable to the jurisdiction of the judicial or administrative au-
thorities of the receiving State in respect of acts performed in the
exercise of consular functions. This immunity shall not, however,
apply in respect of a civil action either:
(a) arising out of a contract concluded by a consular
officer or a consular employee in which he did not contract
expressly or impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an acci-
dent in the receiving State caused by a vehicle, vessel, or
89
aircraft.
(3) However, members of a consular post (consulate-gen-
eral, consulate, or consular agency) may be called upon to attend
as witnesses in the course of judicial or administrative proceedings.
A consular employee or member of the service staff shall not de-
cline to give evidence except in the following: matters connected
with the exercise of their functions, or the production of official
correspondence and documents relating thereto, or as expert
witnesses with regard to the law of the sending State. Even in
matters where he is required to give evidence, no coercive measure
or penalty may be applied to him, should he decline to give evi-
dence. The authority requiring the evidence of a consular officer
shall avoid interference with the performance of his functions. It
may, when possible, take such evidence at his residence or at the
consular post or accept a statement from him in writing. (Art. 44,
Nos. 1, 2, 3, Vienna Convention on Consular Relations of April 24,
1963).
(4) Waiver of privileges and immunities may be waived, but

must generally be express, and communicated to the receiving State
in writing. (Art. 45, see Nos. 1, 2, and 3, op. cit).
(5) Waiver of immunity from jurisdiction shall not imply
waiver from execution, for which a separate waiver shall be nec-
essary. (Art. 45, No. 4, op. cit.)].
" A r t . 41. No. 1.

651
Art 43, Nos. 1 and 2.
THE FIFTH F U N D E H A N T A L RIGHT: 451
U.S. v. Iran
I.C.J. Reports 1980, p. 3
FACTS: On November 4, 1979, several hundred Iranian
students and other demonstrators took possession of the
United States Embassy in Tehran by force. They did so in
protest at the admission of the deposed Shah of Iran into the
United States for medical treatment. The demonstrators were
not opposed by the Iranian security forces who "simply dis-
appeared from the scene." United States consulates elsewhere
in Iran were similarly occupied. The demonstrators were still
in occupation' when the present judgment was given. They
had seized archives and documents and continued to hold 52
United States nationals. (Women and black people had been
released.) Fifty were diplomatic or consular staff; two were
private citizens. In an earlier judgment, the Court had in-
dicated interim measures at the request of the United States.
In the present judgment, the Court ruled on the United States
request for a declaration that Iran had infringed a number of
treaties, including the 1961 and 1963 Vienna Conventions of
Diplomatic and Consular Relations, respectively. It also asked
for a declaration calling for the release of the hostages, the
evacuation of the Embassy and consulates, the punishment
of the persons responsible, and the payment of reparation.
In April 1980, while the case was pending, United States

military forces entered Iran by air and landed in a remote
desert area in the course of an attempt to rescue the hos-
tages. The attempt was abandoned because of equipment
failure. United States military personnel were killed in an
air collision as the units withdrew. No injury was done to
Iranian nationals or property.
HELD: The Islamic Republic of Iran has violated obliga-

tions owed by it to the United States of America under inter-
national conventions in force between the two countries, as
well as under long-established rules of general international
law. The Court also decided that Iran "must immediately
take all steps to redress the situation resulting from the events
of November 4, 1979," including the release of the hostages
and the return of the premises, documents, etc., to the United
States and that Iran was "under an obligation to make repa-
ration" to the United States. Iran, which had declined to
participate in the proceedings, did not comply with the Court's
judgment in any respect. The hostages were ultimately re-

leased in January 1981 as a result of a negotiated settlement
with the United States.
^ r f t f l N A T I O N OF CONSULAR FUNCTIONS
The following causes, inter alia, terminate consular func-
tions:
(L) death of the consular official;
(2f recall or dismissal of the consul;
£3) withdrawal of the exequator;
(4) outbreak of war between the two States involved;
( W " expiration of the period of appointment (if such period
had been specified); and
j.fff disruption of consular relations.
— oOo —
Chapter 10
ANTECEDENTS TO RIGHTS:
RECOGNITION, STATE CONTINUITY
AND STATE SUCCESSION
INTRODUCTION
We have just discussed the most fundamental of the rights of
States: before said rights are recognized, however, in the interna-
tional legal order, the following would seem lo be the requisite
antecedents:
(1) recognition of the States and governments concerned;
(2) recognition of the principle of state continuity; and
(3) recognition of the principle of State succession.
R E C O G N m O N OF STATES AND GOVERNMENTS

Schools of Thought:
There are two (2) schools of thought on the recognition of
States:
(1) the legal or constitutive school — according to this school,
as long as a political unit possesses all the elements needed for a
State, other States are duty bound to recognize the former. Oth-
erwise stated, the unit concerned has a "legal right" to be recog-
nized as a State.
(2) the political or declaratory school of thought — adher-
ents of this view aver that even if a political unit seemingly pos-
sesses the ordinary constituent elements of a State, still foreign
countries are al liberty to either grant or withhold such recogni-
tion. In short, the act of recognition, being political in color, ought
453
1
to be discretionary Tor the other StateB concerned. It seems that
today the latter school of thought has the upper hand; Tor in-
stance, alter all these yeara, China has refused to recognize Tai-
wan as a State and instead treats it as one of its provinces. (See
Manila Bulletin, Sept. 28, 1993, p. 3).
RECOGNITION DEFINED AND DISTINGUISHED

FROM COGNITION AND COGNIZANCE
Prof. D. P. O'Connell in his massive treatise (International
Law, Vol. 1, 1965, p. 179), states that:
"Recognition is a political act of the executive branch of
government, wherein acknowledgement of the claims to gov-
ernmental authority of foreign entities is made, A N D the
legal consequences flowing from such acknowledgment is
admitted. It is to be distinguished from cognition, which is a
mere noting of the facts on which the relevant claims are
based, and cognizance, which is an acknowledgment of those
facts by the legislative or judicial branches of governments
not involving executive admission of the legal consequences."
( N O T E : — The three — cognition, cognizance, and recogni-

tion — are not necessarily in the order given, e.g., recognition by
the executive may come ahead of cognizance by the courts).
KINDS OF RECOGNITION
From the viewpoint of whether or not strings have been
attached to the recognition, it may be unconditional or condi-
tional.
Example of condition recognition: that given to Bulgaria and
Rumania at the Congress of Berlin (1878). The condition was for
them to grant religious freedom to their people.
From the number of States recognizing, it may be individual
or collective recognition.
Example of collective recognition: that given to Austria by the
Allied and Associated Powers.
'See Wilson. Handbook of International Law. Sec. 10: Brierly. The Law of
Nations, p. 124.
ANTECEDENTS TO RIGHTS: RECOGNITION, 466
STATE CONTINUITY AND STATE SUCCESSION
(1) forms of express recognition (a bipartite treaty between

the two States involved; a public announcement; telegrams, cable-
grams, facsimile [fax messages])
(2) forms of implied recognition (formal diplomatic relations;
grant of an exequator to a consul).*
NOTE: The following do not constitute recognition, whether
express or implied: debates in the UN conferences between Phil-
ippine and Russian delegates; participation in a multipartite as
3
distinguished from a bipartite treaty; a request for a grant of
4
extradition.
QUERY
In the Philippines, in whom is the power of recognizing a
foreign State or government vested?
ANSWER: The power of recognizing a foreign State or gov-
ernment is, by constitutional implication, vested in the President
of the Philippines.
Reasons:
(1) The President is empowered to appoint and receive am-
bassadors and public ministers of a foreign State. This, he will
N O T do, if the foreign State or government concerned is NOT
5
recognized by him.
(2) The President can enter into treaties, or international
agreements, with the concurrence of at least two-thirds of all the
member of the Senate. If a foreign State or government is recog-
nized in a treaty, it is clear that he has exercised a Presidential
8
power, of course, with the cooperation of the Senate.
From the viewpoint of what political unit or agency has been
recognized, recognition may be that of a State, or of a government,
or of a belligerent community.
'See Oppenheim-Lauterpacht, Vol. I, International Law, Sec. 75.

'See Hack worth. Digest of International Law.
*See Hall, Trwatim on International Law, p. 93.
"See Art. V H . Sac. 16, 1967 Constitution.
*8ee Art VII. Sec. 21, 1987 Constitution.
R E C O G N m O N OF STATES
Ae has already been pointed out, it is a practical rule of
International Law that no new State has a right as against other
States to be recognized by them; that no State h a s a duty to
recognize a new State. Indeed, recognition is within the discretion
7
of States.
Requisites Before a State has Even a Chance to be Recognized:
(1) According to the majority school of thought:
(a) a group of people more or less numerous capable of
procreation and self-defense;
(b) definite territory;
(c) a government, more or less stable, capable of rep-
resenting the collective will; and
(d) independence.
(2) According to the minority Bchool of thought — all the
requisites mentioned hereinabove are essential, P L U S one more
requisite: the possession of a sufficient degree of civilization.
How States Come Into Existence:

(1) By a voluntary federation of previously existing States
(Example: the German Empire of 1866).
(2) By a revolution within the territory of an existing State
(Example: the United States, when it declared its independence on
July 4, 1776 — a revolution it continued to a successful conclusion).
(3) By a peaceful declaration of independence, coupled with
the permission of the governing power (Example: the Republic of
t h e Philippines when it declared its independence from America
on July 4, 1946). (Declaration of independence from Spain WBB on
June 12, 1898).
(4) By intervention of the Great Powers after a eerious
struggle for independence [Example: Poland (1919)]
(5) By concession of the governing power of a colonial pro-
tectorate [Example: Transvaal (1842)].
'See 1 Oppenheim, op. cit., p. 122.

STATE CONTINUrrY AND STATE SUCCESSION
(6) By the formation of new States in hitherto unoccupied

regions, and the subsequent grant to them of independence [Ex-
ample. Congo Free State (1885)]
(7) By the division of a State into two or more States.
(Example: Norway and Sweden from the former State of Norway-
Sweden).
8
(8) By attainment of a full civilization (Example: Japan).
Consequences of the Recognition of a New State:

(1) The recognized State can enter into diplomatic relations
and treaties with the recognizing State.
(2) The recognized State acquires the right to sue in the
courts of the recognizing State.
(3) The recognized State (as well as its properties) acquires
immunity from the jurisdiction of the courts of the recognizing
State.
(4) The recognized State can demand and possess property
that it owns within the territory of the recognizing State.
(5) In case the new state has come into existence by virtue
of a successful revolution, all its acts and decrees PRIOR to the
recognition are given RETROACTIVE effect (future acts can never
9
be questioned in the courts of the recognizing State).
RECOGNITION OF GOVERNMENTS
Requisites for the Recognition of Governments:

Before a government has a chance to be recognized, it must
possess the following minimal requisites:
(1) the government muBt be more or less effective and sta-
ble;
(2) there must be no substantial resistance to authority;
"See Fenwick, International Law, pp. 106-109.

'See Oefjen v. Central Leather Co., 246 U.S. 297; Under hill u. Hernandez,
166 U.S. 260:1 Oppenheim. International Law. p. 133.
456 POLITICS
(3) desire and capacity to discharge international obliga-

tions must be present.
In connection with the requisites for the recognition of a
government, the following doctrines have arisen:
(1) >fhe Stimson Doctrine — (according to this doctrine, the
United States will not recognize any government created by an
external aggressive force);
(2) the Wilson or Tobar Doctrine — a policy laid down in
1913 by President Woodrow Wilson of the United States, and
concurred in by England, that unless a successful revolutionary
government met with popular approval, it would be refused rec-
ognition by the United States and by Great Britain. The doctrine
applied particularly to five republics in Central America. The two
Great Powers decreed that they would not "recognize any other
government which may come into power in any of the five Republics
as a consequence of a coup d'etat or a revolution against a rec-
ognized government as long as the freely-elected representatives
of the people thereof have not constitutionally reorganized the
10
country."
(3) the Estrada Doctrine — enunciated by Estrada, Foreign

Minister of Mexico in 1930, to the effect that Mexico would recognize
any successful revolutionary government, whether legitimate or
not — because an inquiry into legitimacy would be an intervention
11
in the internal or domestic affairs of another State.
NOTE: "Precipitate" or "premature" recognition exists when
the rebels are accorded recognition P R I O R to the defeat of the
mother-State. Such recognition is unlawful and amounts to an
"intervention" particularly when it appears that the mother-State
12
is capable of suppressing the belligerent community.
NOTE: Applied to "recognition of government," the "principle
of effectiveness" states that the new government, to be entitled to
recognition, ought to be supported by the "will of the nation, sub-
stantially declared"; moreover, there must be evidence of popular
13
approval, adequately expressed, of the revolutionary change.
'"See Treaties of the Five Central American Republics.

"See I Oppenheim, p. 128. Footnote No. 3.
"See I Oppenheim, op. cit., p. 124.
13
Oppenheim, op. cit., p. 127.
STATE CONTINUrrV A N D STATE SUCCESSION
Consequences of the Recognition of Governments:

When governments are recognized, the consequences of said
13
recognition are identical to those in the recognition of States. *
(1) A duly recognized revolutionary government has capac-
ity to sue in the courts of the recognizing State.
Republic of China v. Merchants Five

Assurance Corporation of N e w York
30F (2nd) 278
FACTS: The Republic of China had a fire insurance policy
against the Merchant's Fire Assurance Corporation of New
York and the Great American Insurance Company. After a
fire loss occurred, the revolutionary government of China got
hold of the policy, and sued in the United States for the
amount of the indemnity. During the pendency of the case,
said revolutionary government was recognized by the United
States. Issue: Does the plaintifT have capacity to sue?
HELD: Yes, in view of its recognition by the Govern-
ment of the United States.
Guaranty Trust Co. v. United States

304 U.S. 126
58 S. Ct. 765
FACTS: Shortly after the Russian Imperial Govern-
ment was overthrown, the United States recognized on March
22, 1917 its successor, the Provincial Government of Russia.
Said recognition lasted for 16 years, when the Provincial gov-
ernment was itself overthrown by the Soviet Government.
The latter (Soviet Government) was recognized by the United
States on November 16, 1933. Thru an agreement, the Soviet
Government made the U.S. government an assignee of all
amounts which might be due it (the Soviet Government) as
successor of prior Russian governments — amounts which
may be owed by American corporations. As assignee, the U.S.
government Bued to recover from the Guaranty Trust Co. (a
bank) an amount deposited as a credit of the Russian Provi-
sional Government. The Bank set up in defense the New
>im
Supra.
York Statute on Limitations (prescription of six years). The

assignee U.S. government, however, claims:
(1) that the Statute of Limitations does not apply to a
foreign state or government;
(2) that there is a New York rule that the Statute of
Limitations does not run against a plaintiff who has no fo-
rum within which to assert his rights;
(3) that at any rate, it is now the US. government
suing, not the Soviet Government;
(4) that with the subsequent recognition of the Soviet
government, all acts or transactions entered into with the
Russian Provisional Government were rendered nugatory.
(5) that there is a New York rule that prescription in
the case of a bank deposit does not begin to run until there
is a definite repudiation conveyed to the creditor, and not
until recognition of the Soviet government, was there any
person or entity to whom notice of the repudiation could be
given.
HELD:
(1) Anent the contention that prescription does not
apply against a foreign State or government, it can be said
that the allegation is baseless. It is true that the Statute of
Limitations cannot adversely affect the Sovereign State. "Quod
nullum tempus occurrit regi" (The sovereign is exempt from
the consequences of its laches and from the operation of
Statutes of Limitations). The reason is "to be found in the
great public policy of preserving the public rights, revenues,
and property from injury and loss, by the negligence of public
officers." (Justice Story in United States u. Hoar, 26 Fed. Cas.
pp. 329, 330, No. 15373). But no such reason applies in the
case of foreign States or governments. By voluntarily appear-
ing in the role of suitor, it abandons its immunity from suit
and subjects itself to the procedure and rules of decision
governing the forum which it has sought. Thus, in the absence
of definitive rules, prescription should run against a foreign
government seeking a remedy afforded by the forum, in the
same way that prescription runs against private litigants.
(2) The assignor had a forum in which to assert its

rights prior to its recognition by the United States, namely,
ANTECEDENTS TO RIGHTS RECOGNITION, 461
the forum presented by the United States Courts, where the

Provisional Government of Russia, could have sued. The right
was vested in the State, as represented by the government
currently recognized. ThuB, it is wrong to say that there had
been no prior opportunity to sue. Whether or not said prior
Provisional Government possessed "actual" authority in Rus-
sia is of no significance: the important thing is that it was the
government recognized by the United States government. Such
recognition is political in character, and will not be inquired
into by the courts. Suffice it to say that U.S. courts have been
long open to suits on behalf of the Russian State.
(3) It does not matter that it is the U.S. which has

instituted the suit, for it has done so as mere assignee or
successor to the rights of the Soviet Government. If the claim
of the latter is barred by prescription, the United States as
its assignee can be in no better position.
(4) The subsequent recognition of the Soviet Govern-
ment by the United States did not render nugatory all acts
and transactions entered into with the Russian Provisional
Government. This is tantamount to saying that the judgments
in suits maintained in the U.S. by the diplomatic repre-
sentatives of the Provisional Government, valid when ren-
dered, became invalid upon the recognition of the Soviet
Government. The very purpose of recognition is that American
nationals may be conclusively advised with what government
they may safely carry on business transactions and who its
representatives are. If those transactions, valid when entered
into, were to be disregarded after the later recognition of a
successor government, recognition would be an idle ceremony,
yielding none of the advantages of established diplomatic
relations in enabling business transactions to proceed, and
affording no protection to American nationals in carrying them
on.
(5) As already said, notice of the repudiation could have

been given to the Russian State, thru the Provisional Rus-
sian Government, but proof of this NOTICE OF REPUDIA-
T I O N must be definite. So the case should be remanded to
the lower court for further proceedings in conformity with
this opinion.
(2) A foreign State or government may sue only when it is
recognized; but whether recognized or not, it cannot be sued.
Max Wulfsohn et al. v. Russian Socialist

Federated Soviet Republic
234 N . Y . 372 (1923)
FACTS: Max Wulfsohn, et al.. •jwned several furs stored
in Russia. The furs were later confiscated by the Russian
Socialist Federated Soviet Republic, a government N O T Y E T
(at that time) recognized by the United States. Max Wulfsohn,
et al., sued in the United States said unrecognized foreign
government. Issue: May an unrecognized foreign government
be sued in a State N O T recognizing the same?
HELD: No. The rules to be borne in mind are the fol-
lowing:
(a) A recognized government may sue in the courts of
the State recognizing it; an unrecognized government may
1
not sue. *
(b) A recognized government may N O T be sued in a
State recognizing it; an unrecognized government may NOT
also be sued. "Whether recognized or not, the evil of such an
attempt (to sue the foreign government) would be the same.
To cite a foreign potentate into a criminal court for any com-
plaint against him in his public capacity is contrary to the
law of nations and an insult which he is entitled to resent .
. . In either case, to do so would vex the peace of nations. In
either case, the hands of the Stale department would be tied.
Unwillingly, it would find itself involved in disputes it may
think unwise." If a citizen of the United States thinks himself
wronged, the proper method of redress is not a political one.
The proper remedy is one of negotiation or of reprisal or of
war.
Banco Nacional de Cuba v. Sabbatino

376 U.S. 398; 64 S. Ct. 923 (1964)
FACTS: (The other pertinent facts in this case have
already been set forth under the heading of Act of State
Doctrine — supra) It was alleged that the Banco Nacional de
Cuba, an instrumentality of the Cuban government, could
u
See Russian Socialist Federated Rep. t>. Cebrbrio, 235 N . U . 255.
STATE C O N T I N U I T Y A N D STATE SUCCESSION
not sue in the United StateB because "Cuba ie an unfriendly

power and does not permit nationals of this country (U.S.) to
obtain relief in its courts." The Bank, however, countered
that Cuba and its government had received U.S. recognition,
and that, therefore, the existence of unfriendly relations is
immaterial. Issue: Should the Bank be allowed to sue?
HELD: Yes, the Bank can sue for the following rea-
sons:
(1) Under the principle of comity, sovereign Stales are
allowed to sue in the courts of the United States.
(2) The unfriendly relations between the two countries
— as evidence by the severance of diplomatic relations, com-
mercial embargo, and the freezing of Cuban assets in the
U.S. — are immaterial, for after all, Cuba and the United
States are not at war. Recognition of Cuba implies the will-
ingness of the U.S. to acknowledge that the Cuban govern-
ment speaks as the sovereign authority for the territory it
purports to control.
(3) The lack of reciprocity is also of no moment be-
cause as pointed out previously by Judge Learned Hand, the
doctrine of reciprocity is confined only to foreign judgments,
not to capacity to sue.
(3) The recognition of a successful revolutionary government
has a retroactive effect and validates prior acts of the same gov-
ernment.
Oetgen v. Central Leather Co.

246 U.S. 297
FACTS: During the Mexican Revolution of 1913, Gen-

eral Pancho Villa confiscated as "war contribution" certain
hides belonging to Martinez. Villa sold the hides to a Texan
Corporation which in turn sold them to the Central Leather
Co. It was alleged later that the confiscation violated an
existing treaty between the United States and Mexico, and
that, therefore, the sale was illegal. Oetgen, as assignee of
Martinez, thus demanded in U.S. courts the recovery of the
hides. Incidentally, during the pendency of the case, the
government of Mexico under General Carranza (chief of
General Villa) was recognized in 1917 by the United States
as the de jure government of Mexico. Issue: Was the sale by

Pancho Villa valid?
HELD: The sale was valid. The recognition of Carranza's
de jure government by the United Stales was retroactive in
effect, and validated all prior actuations of Carranza's gov-
ernment, from the very commencement of its existence. The
United States courts cannot reexamine and condemn the acts
of another legitimate government without jeopardizing friendly
State relations.
Underbill v. Hernandez
168 U.S. 250
FACTS: A revolutionary government in Venezuela de-
tained thru General Hernandez an American citizen named
Underhill, a contractor of waterworks. The detention lasted
for sometime, but eventually, the prisoner was finally allowed
to leave for the United States. On October 23, 1692, said
revolutionary government was recognized by the United Slates
as the legitimate government of Venezuela. Underhill sued in
the United States General Hernandez for recovery of dam-
ages caused both by the detention and by certain alleged
assaults by the soldiers of General Hernandez. Issue: Is
General Hernandez liable?
HELD: General Hernandez is N O T liable and Underhill
will not be allowed to recover. This is because the acts com-
plained of were those of a foreign revolutionary government,
which eventually succeeded, and was RECOGNIZED by the
United States. U.S. courts will not sit in judgment on the
acts of a foreign government done within the territory of the
latter. The acts of the recognized revolutionary government,
from the commencement of its existence, are those of an
independent foreign nation. Redress indeed cannot be judi-
cial; it must be political — an affair to be settled between
sovereigns.
Kinds of Recognition of Government:

The recognition of a government may be either de jure or de
facto:
(1) de jure — when no condition is attached and the mini-
mum requisites for recognition are present;
ANTECEDENTS TO RIGHTS: RECOGNITION. 466
(2) de facto — when the recognition is temporary because of

insufficient stability or reluctance or inability to comply with in-
15
ternational obligations.
NOTE: While recognition de jure is comparatively perma-
nent, brings about full diplomatic intercourse, and gives title to
the properties of the government recognized that are situated
abroad, recognition de facto is temporary and limited, does not bring
about full diplomatic intercourse, and does not grant title to the
16
properties hereinabove adverted to.
NOTE: The question of de jure or de facto recognition comes
up only if the change in government has been brought about by a
coup d'etat or by a revolution; if changes have been effected thru
constitutional processes such as peaceful elections, recognition is
17
automatically presumed.
Kinds of Government Recognized:

The government that may be recognized is either de jure or
de facto:
(1) de jure government — a government truly and lawfully
established by the constitution of a State, but which having been
in the meantime displaced is actually cut off from power or con-
trol."'
(2) de facto government — a government of fact; one actu-
ally exercising power and control in the State as opposed to the
19
true and lawful government. Generally, there are at least three
(3) kinds of de facto governments:
(a) a government set up by a dependency which riBes
in revolt (Example: that originally set up by the United States
in the course of its revolution against England);
(b) a government set up by secessionists within a State
for the purpose of governing the territory they hold (Exam-
1-1
1 Oppenheim, op. cit., 130.
'"Sec Oppenheim Lauterpacht, Vol. I, pp. 343-344: see also Hade Selassie
i Cable and Wireless Ltd. (No. 2) 1939 Ch. 182.
i:
See Kelsen. Principles of International Law. p. 279.
"Auet. Jur, p. 324.
"Auat. Jur., p. 234.
pie: that which was established by the Confederate States of

America during the American Civil War);
(c) a government of "paramount force"— one whose
existence is maintained by an active military power, usually
an invading army, and which in the meantime must neces-
sarily be obeyed in civil matters by private citizens. These
citizens ought not to be considered responsible as wrongdoers
for these acts of obedience even though unwarranted by the
20
laws of the rightful government. (Examples: the government
of Castine, Maine during the War of 1812 between the United
States and England while Castine was under the occupation
21
of the British forces, the government of the Philippines under
the "Philippine Executive Commission" and under the "Phil-
ippine Republic" during the Japanese occupation.P
QUERY
What was the status in International Law of the Government
of the Philippines under the:
(a) Philippine Executive Commission during the
Japanese occupation? (b) Philippine Republic, also during the
Japanese occupation?
ANSWER: Both were considered — de facto govern-
ments (of paramount force) by the Philippine Supreme Court;
thus, all their acts which did not partake of a political
1
complexion were considered valid.'' Their existence was
maintained by an active Japanese Military power within the
territory, and against the rightful authority of an established
and lawful government (the Commonwealth Government
which was then "a government in exile" in the United States).
NOTE: The question has been asked — was the Philip-

pine Republic during the Japanese occupation a State? It
should be noted that most of the Axis powers recognized the
Republic — Japan and her allies, therefore, considered our
Republic a State. But, of course, to the U.S. and her allies.
™See Thorington v. Smith, 8 Wallace 8, 9; L. Ed. 361.

a
' [ / . S . v. Rise, 4 Whcaton 253.
"Co Kim Chan v. Valdet Tan Keh and Diion. 75 Phil. 113.
w
C o Kim Chan v. Tan Keh. 75 Phil. 113.
STATE CONTINUrrY A N D STATE SUCCESSION
the Philippines all the time was still a part of the United
States under the belligerent occupation of the enemy. Be-
sides, the Philippines was NEVER annexed to or merged with
Japan during the war. Indeed, while the Philippines was
"conquered," it never was "subjugated."
FIVE PHILIPPINE REPUBLICS

(1) The 1st was in 1899. This was a de facto government.
[(U.S. v. Pagaduar, 37 Phil. 90 (1917)].
(2) The 2nd was in 1943 to 1945 consisting of the Philip-
pine Executive Commission and the Republic during the Japanese
Occupation. The two were de facto . [Co Kim Cham v. Valdez Tan
Keh, 75 Phil. 113 (1945)].
(3) The 3rd (from our independence in 1946 to 1981. [(Kuroda
v. Jalandoni, 83 Phil. 171 (1949)].
(4) The 4th Republic (from 1981 to February 1986). This is
essentially a presidential government with certain aspects of the
parliamentary system. [(Free Telephone Workers' Union v. Minis-
ter of Labor, GR-58184, October 30, 1981)].
(5) The 5th or present Republic from post EDSA "People
Power of Feb. 26, 1986 to the present — a purely presidential
form of government.
Thorington v. Smith
8 Wallace 8, 9; 19 L. Ed. 361
FACTS: A parcel of land in Alabama was sold by a citi-
zen of Alabama to another citizen of the same state during
the American Civil War. Alabama was then in the hands of
the Confederate rebel government, so some part of the pur-
chase price was paid in Confederate money. The Civil War
ended in 1865 and the Confederate notes became worthless.
The seller, however, sued for the recovery of the balance. It
was pleaded in defense that the promissory note for the bal-
ance was illegal, in view of the stipulation to pay in Confed-
erate notes (which at that time had already become unlaw-
ful), Issue: Can the buyer be made to pay the balance of the
price?
HELD: Yes, not in illegal Confederate money, but in
lawful U.S. money, computed at an equivalent rate. The con-
tract, being a transaction in the ordinary course of civil soci-

ety, must be respected and enforced even after the restora-
tion of peace to the extent of its just obligation. It would have
been different had the contract been entered into with actual
intent to deliberately further the rebellion.
[NOTE: Observe that acts in aid of the rebellion or civil
war perpetrated by the rebel Confederate government were
NOT recognized. (Horn v. Lockhart, 17 Wall I (1868).]
U.S. on Behalf of George W. Hopkins v.

United Mexican States
General Claims Commission (1927) p. 42
FACTS: A revolutionary and de facto government (the

Huerta Administration of Mexico) issued several postal money
orders in 1914, but subsequently, said government was
overthrown by the de jure one. May the purchaser of the money
orders recover payment from the de jure government of
Mexico?
HELD: Yes, because the issuance of money orders is a
routinary function of all government regardless of how said
government has come into power. The issuance does not
partake of a political complexion, and does not directly aid
the furtherance of revolutionary process. (NOTE: — Act of a
political character which may result in State obligations may
or may not be recognized by the restored government).
QUERY
During the last days of the Japanese occupation of Manila, A

had purchased a money order payable to B in Iloilo. This was
accordingly transmitted from Manila to Iloilo but was lost on the
way when the liberation forces under General Douglas MacArthur
came and clashed with the Japanese Forces. Upon the advent of
peace, was the restored Philippine Government justified in refusing
to refund the amount of the lost money order on the ground that
the government during the occupation was a usurpation? Why?
ANSWER: The restored Philippine Government is not jus-
tified in refusing to refund the amount because, this being a
routinary act of administration by any kind of government regard-
less of its form or character, the view has been that the new
ANTECEDENTS TO RIGHTS; RECOGNITION, 469
government as a general practice assumes responsibility of such

14
transactions.
Recognition of States and Recognition of Governments

Distinguished:
(1> From the viewpoint of meaning.
When a State is recognized, the recognizing State admits the
possession by the former of all the essential requisites for a State
and the former is thuB regarded by the latter as an International
Person. When a government is recognized, it does not necessarily
follow that its being a State is also recognized because that gov-
25
ernment, may for instance, be that of a mere dependency.
Case:
Lawyer's League for Better Philippines,

et al. v. President Corazon C. Aquino
G.R. N o . 73748, May 22, 1986
En Banc, Minute Resolution
The Aquino Government is not merely a de facto but is,

in fact and law, a de jure government. The people have made
the judgment and have accepted the Aquino Government
which effectively controls the entire country. The community
of nations has recognized its legitimacy.
All the [original] eleven members of the Supreme Court,
as reorganized [namely: Chief Justice Claudio Teehankee and
Justices Vicente Abad Santos, Jose Y. Feria, Pedro Yap,
Marcelo B. Fernan, Andres R. Narvasa, Ameurfina Melencio-
Herrera, Nestor Alampay, Hugo E. Gutierez, Jr., Isagani Cruz,
and Edgardo L. Paras] have sworn to uphold the fundamen-
tal law of the Republic under the government.
(2) From the viewpoint of revocability:

Once recognition is accorded a State, it generally cannot be
revoked (as long as the State continues to exist as such); upon the
"See U.S. on Behalf of George W. Hopkins v. United Mexican States.

General Claims Commission, 1927, p. 42.
"See Hackworth, Digest of International Law. Vol. I p. 166.
other hand, the recognition of a government is revocable at will.

However, even if this is done, the State the government of which
is no longer recognized — remains an international person, despite
28
lack of official diplomatic intercourse between the two States.
NOTE: It is unfortunate that in many cases the terms
"government" and "State" have been used interchangeably, as if
they mean one and the same thing; similarly, "recognition of a
government" has been confused with "recognition of a State." For
example:
(a) In the case of Dougherty v. Equitable Life Assur-
21
ance, the Court held that "On Nov. 16, 1933, the United
States extended formal recognition to the Soviet Republic."
This is misleading: literally, it is as if Russia was being
recognized as a State only at that time, when in truth, it had
begun to exist as a State long before that moment, and what
the court really meant was that on said date, the new Rus-
sian government was recognized.
2
(b) In Jones v. Garcia del Rio, " the Court confused the
new State of Peru (after a revolutionary separation from
Spain) with the Peruvian government. In effect, the Court
stated that since the new Peruvian government had not yet
been recognized by England, it was doubtful whether the
State of Peru already existed.
It is gratifying to observe that in 1939, England in two cases,
clearly set forth the distinction between "State" and "Government."
It held, inter alia, that governments may act illegally and ultra vires
under the laws of one State; that, therefore, a State may sue in a
foreign forum and allege the illegality of the acts of its government
at a given time; and that this allegation cannot be made by the
government itself, despite a change of form, for then it would be
impugning its own actuations.
(a) First Case —The Government of Spain v. The

Chancery Lane Safe Deposit, Ltd.
FACTS: The British Government recognized in Febru-
ary, 1939 the Spanish government of General Franco as the
" S e e Oppenheim-Lauterpacht, International Law, Vol. I, Sec. 73.

"Court of Appeals. New York, 1934. 266 N . Y . 17.
"Great Britain High Court of Chancery 1S23, Turner and Russell 297
STATE C O N T I N U I T Y AND STATE SUCCESSION
dejure Spanish government. This government — in the name

of the Spanish government — brought an action in an English
court. The purpose was to impugn an act of the previous
Spanish government (the Republican government) made at a
time when said previous government was still the de jure one.
Issue: May the action prosper?
HELD: The action will not prosper. Both the Republican

and the Franco governments form the same legal enlity —
the same Spanish government — even if composed of differ-
ent persons. Therefore, said Spanish government cannot le-
gally impugn one of its own acts; otherwise stated, it cannot
premise a claim on the illegality of its own actuations.
(b) The Second Case — The State of Spain v. The
29
Chancery Lane Safe Deposit, Ltd.
FACTS: This had the same facts as the preceding case
with one notable divergence: here, the suit was instituted not
in the name of the Spanish Government BUT in behalf of the
STATE of Spain. Issue: May the action prosper?
HELD: Yes, this time, the claim may prosper. While the
government is indeed the principal organ of the State, still
"government" and "State" are from the viewpoint oflaw, NOT
identical things. While the "government" regardless of change
of form C A N N O T impugn its own act, a "State" may properly
allege that one of the actuations of its government at a GIVEN
T I M E (namely, the act of the Republican government) was
30
ultra vires and, therefore, illegal.
Effect on Non-Recognition Insofar as the UN is Concerned:

Let us consider a hypothetical problem. X is a State-Member
of the U N . A revolution takes place in X and the revolutionary
government takes effective control of the country. Assume that
some of the UN members for one reason or another refuse to
extend recognition to the new government; assume further that
delegates of BOTH the old and the new governments present
themselves in the U N . Two important questions will naturally
"England, High Court, 1939; Annua/ Digest 1941 1942, Case No. 7.
" S e e Kelaen, Principles of International Law, pp. 290-261.
arise. Firstly, what is the effect insofar as the UN is concerned of

this non-recognition by some UN members? Secondly, who will
represent State X? In answer to the first query, it ia submitted
that insofar as the UN is concerned, there is hardly any effect of
this non-recognition: State X continues to be a member-State, and
relations between X and the non-recognizing States (with the ex-
ception of diplomatic intercourse, which will, of course, be dis-
rupted) will continue to be governed by the UN Charter. In refer-
ence to the second question, the problem of delegate-representation
will have to be decided by the UN itself: ff the UN is convinced of
the independence and effective control established by the new gov-
ernment, it would seem to have no alternative except to admit the
new debates and to cancel the credentials of the representatives of
the old government. After all, under the Chatter, membership is
conferred not on any particular government but on the State con-
cerned; hence the UN cannot refuse to resolve the question of
31
representation.
THE MIDDLE FORCES AS PEACE ADVOCATES

Not generally known in the current peace process initiated by
the Fidel V. Ramos government is the emerging but quiet in-
volvement of the private business and professional sectors.
In the past, peace and amnesty initiatives dating back to
June, 1986 when former President Corazon Aquino started talks
with the National Democratic Front ( N D F ) , thru a panel headed
by the late Sen. Jose W. Diokno, have been generally bilateral —
the government upon the one hand and the rebels upon the other.
It is true that a number of Peace Advocacy Groups, NGOs and
Church elements have always maintained a residual interest in
the peace talks, but the middle forces represented by business and
professioinal elements have remained largely aloof.
What provides true hope in the current peace gab is the deep
concern and interest that industry and business, both big and
small, have started to demonstrate. After all, the EDSA Revolu-
tion and the triumph of People Power saw the indispensable
convergence of the peasant street marchers with the middle forces
3l
S e e Resolution of December 14. 1950 of the General Assembly; see also
kelsen. Principles of International Law. pp. 2S4-285.
and the boardroom movers of Makati and Ortigaa (two elite sub-
urbs of Metro Manila].
The peace and consciousness of the middle forces was pried
open during the Multi-Sectoral Conference convened by the Phil-
ippine Chamber of Commerce and Industry on June 13, 1992.
Attended by over 500 representatives, the conference was called lo
propose a comprehensive program for the first 100 days of Pres.
Ramos. The meeting was attended by the then 'President-apparent'
himself together with members of the then Aquino Cabinet, business
and industry leaders, NGOs, the academe, peasant and labor
sectors as welt as media. One of this book's authors was invited as
workshop rapporteur.
Under the chairmanship of prominent practising lawyer
Artemio Panganiban, the Workshop on Administration of Justice
(one of the 10 sub-groups of the conference) discussed the basic
elements of the peace process. It was pointed out that the armed
confict cannot be solved by military means. Neither is a unilaterial
amnesty program by itself sufficient to remove the violence that
has wracked our country over the past 45 years. For the armed
conflict is merely the consequence of social, political and economic
imbalances. Hence, the insurgency can only be resolved with finality
if these underlying problems are themselves solved.
The conference enthusiastically approved the peace initiatives
of the Panganiban Workshop. Later, the PCCI Board led by its
chairman Aurelio Periquet and its president Jose Pardo institu-
tionalized the commitment of PCCI to the peace process by the
appointment of Panganiban as PCCI's chief peace advocate, in
addition to his duties as PCCI general counsel and director.
The old-time Multi-Sectoral Peace Advocates (MSPA) led by
Sen. Wigberto Tanada, Rep. Bonifacio Gillego, Dr. Maris Diokno,
Prof. Ed Garica, former Rep. Butch Abad and Ms. Teresita Deles
noticed this thawing of PCCI and saw in it a major breakthrough.
They met with the PCCI Board and encouraged PCCI to spread
the intiatives to the other middle forces in the business and
professional sectors. To date, PCCI counsel Panganiban continues
to liaise with the M S P A .
Now, the peace virus is slowly infecting the entire business

community as the other organizations gobble up information on
the subject. Such elite groups like the Management Association of
the Philippines, headed by Antonio Henson, Makati Business Club
chaired by corporate lawyer Ricardo Romulo, BankerB Association

of the Philippines presided by Far East Bank's Octavio Espiritu
and the Financial Executives Institute [then] headed by Edwin
Fernandez are all re-educating their leaders and members on the
elements of peace as not merely a cessation of hostilities but the
implementation of solutions to the problems and causeB that
spawned the rebellion.
To be sure, the road to peace will not be totally smooth for
these middle forces. Sacrifies and concessions will be asked
from them for no peace will be possible without sacrifices and
solidarity.
The Joint Declaration signed on Sept. 1, 1992 by the Govern-
ment of the Republic of the Philippines represented by Rep. Jose
Yap and the National Democratic Front led by ex-priest Luis
Jalandoni recommended that the substantive agenda of the formal
peace negotiations shall include:
* Human rights and international humanitarian law

* Socio-economic reforms
* Political and constitutional reforms, and
* End of hostilities and disposition of forces
Among the socio-economic reforms the N D F is asking for, has

reference to the foreign debt payment cap, an issue that is very
sensitive in the business community. Another critical issue is N D F s
insistence on enlarging the scope and benefits of land reform.
Aside from the Marxist-led insurgency, there are also three
major groups of armed rightist military rebels: (1) T h e R A M ,
originally the Reform the A r m e d Forces M o v e m e n t now,
Rebolusyonaryong Alyansang Makabayan (Revolutionary Nation-
alist Alliance); (2) The SFP or the Soldiers of the Filipino People;
and (3) The Y O U or Young Offices Union.
Recently, cashiered Lt. Col. "Gringo" Honasan submitted

possible talking points, some of which the business and middle
forces must address like:
* Implementation of nationalist economic policies and

* Actualization of social justice programs to solve poverty,
unemployment and criminality.
In the South, there are still sporadic clashes between the

A F P and the Muslim rebels. But the Moro National Liberation
Front is heavily fragmented into three (3) groups: (1) the main-
stream M N L F chaired by Nur Misuari; (2) the breakaway M N L F
Reformist Group chaired by Dimas Pundato who has joined gov-
ernment as Muslim Affairs chief; and (3) Moro Islamic Liberation
Front (MILF).
At present, the Ramos government has embarked on several

"confidence building measures." These are steps unilaterally un-
dertaken by government to create a favorable climate for peace
negotiations and to show sincerity in the resolve to end the in-
surrection. Some of these measures are:
1) Mr. Ramos' release of ranking rebels from military
custody;
2) Repeal of the Anti-Subversion Law (RA 1700);
3) The sending of government emissaries led by Rep. Jose
Yap to meet with the NDF in The Netherlands;
4) The setting-up of the National Unification Commission
(NUC).
Al) Filipinos have a stake in peace. In particular, business-
men are increasingly becoming aware that without peace, business
cannot prosper. And without business, economic development
cannot take place. As former rebel Horacio "Boy" Morales points
out "peace is too precious to be left to the whims and designs of the
armed protagonist only. Society must be involved because society
needs peace and needs it now."
With the emergence of the middle forces of business, industry
and the professions as peace advocates, the process of con-
sensus-building for a non-violent society is now entering a new
phase.
/ RECOGNITION OF BELLIGERENT COMMUNITIES

Used in connection with a civil war, the "belligerents" are the
contending forces; more specifically, the term refers to rebels who
have successfully occupied a substantial portion of the territory,
have organized their own form of civil government, and who to all
appearances are bound to win in the civil strife. Prior to recogni-
tion by other States, they are referred to as mere "insurgent";
after recognition, they become "belligerent" and their community

32
is called a "belligerent community."
DOES THE MNLF HAVE INTERNATIONAL

LEGAL PERSONALITY?
Prominent Filipino international lawyer, A r t e m i o V.
Panganiban, in his article at the Manila Bulletin, (Jan. 14, 1987,
p. 7), has this to say on the status of the Moro National Liberation
Front ( M N L F ) , an insurgent group, thus: "A few days after [then]
Minister Aquilino Pimental, head of the Philippine panel negoti-
ating with the M N L F , announced that "the government prefers
that all talks be held in the Philippines not in the Middle East"
(Manila Bulletin, Dec. 25, 1986), he unceremoniously left for
Jeddah, Saudi Arabia on Dec. 30, 1986 precisely to meet there
with his M N L F counterparts. He was accompanied by panel
members Agapito 'Butz' Aquino [now a Senator) and Norberto
Gonzales, and [then] Deputy Minister of Local Government
Saidamen Pangarungan. This meeting in Jeddah *is in accordance
with a ceasefire agreement signed in a Jolo, Sulu convent a few
months ago." (Manila Bulletin, Dec. 31, 1986). Continued he:
"On January 5, 1987, the newspapers reported that an

agreement between the government and the M N L F was signed
on Jan. 3, 1987 in Jeddah, 'under the auspices of the 46-
member Organization of Islamic Conference, (OIC),' whereby
'the Moslem group dropped its demand for full independence
and agreed to negotiate autonomy,' which according to M N L F
chairman Nur Misuari would mean a 'State within a State.'
Both sides agreed to continue discussion on whether to grant
full autonomy to five groupB of islands in the Philippines,
namely, Mindanao, Sulu, Basilan, Tawi-Tawi and Palawan.
"Our legal opinion has been sought by Bulletin columnist,

former Ambassador Melchor Aquino on this question: What
are the effects, in international law, of the agreement by the
Philippine government to meet with representatives of the
M N L F in a third country (Saudi Arabia) under the auspices
of an association of 46 governments/States of which the
Philippines is not a member (Organization of the Islamic
Conference)?
^See Wilson and Tucker, International Law, p. 69.

"In answer to an earlier query posed by Ambassador

Aquino, (see Manila Bulletin, Dec. 17, 1986), we opined that
on the basis of generally-accepted principles of international
law, the M N L F (and the NDF, for that matter) did not have
a status of'belligerency.' This opinion is subject to the caveat
that 'since there is no purely legal right to be recognized, the
question as to whether belligerency may be accorded recog-
nition is a matter of policy on the part of the recognizing
State or government.' (Salonga and Yap, Public International
Law, 1966 ed., p. 102). In other words, Buch recognition may
be given at the discretion of a sovereign third State, and
being political in character, recognition can hardly be ques-
tioned in an international legal tribunal.
"It is in this light that the query assumes relevance.
Otherwise stated, by its acquiescence to confer with the M N L F
in Saudi Arabia under the auspices of the organization of the
Islamic Conference, is the Philippine government giving other
States some grounds to accord recognition to the M N L F as a
belligerent community or as some other 'subject' of interna-
tional law?
"To be sure, this is not the first time that the Philip-
pines as a sovereign State has agreed to negotiate with the
M N L F in a foreign country under the auspices, if not spon-
sorship of the OIC. The Tripoli Agreement of 1977 was con-
cluded in Libya by the Marcos government under such cir-
cumstances. In other words, a refusal by the [then Aquino J
government to negotiate in Jeddah under the auspices of OIC
would not have prevented third States from using these ex-
cuses as political justifications for recognition. However, by
its agreement to meet in a third country, the present govern-
ment is estopped from denouncing such acts of the previous
regime.
"It is difficult to think that Great Britain would agree to

negotiate with the Irish Republican Army in Italy or Spain
under the auspices of an association of Catholic States, as it
is equally difficult to imagine India consenting to meet with
Sikh separatists in Nepal or another third State, under the
sponsorship of an association of States of which it is not a
member. Be that as it may, the Philippines, both under
the old and new regime, has made this thought rather aca-
demic.
"Traditionally, 'only sovereign States c a n be regarded as

the subjects of international l a w . ' (Salonga a n d Yap, Op.Cit.,
p. 66). Hence, in the d a y s of Grotius who is generally re-
garded as the father of international law, only States had
'international personality,' i.e., only States had rights and
duties under international l a w . In the course of time, this
concept has changed and other entities have been vested with
or have come to possess international personality even if
"incomplete, imperfect, qualified or quasi,' (See Paras, Inter-
national Law, 1975 ed., p. 69). The International Court of
Justice recognized this in an advisory opinion in Reparations
for Injuries Suffered in the Service of the United States. (I.C.J.
Rep., 1949, 174) that, Throughout its history, the development
of international law has been influenced by the requirements
of international life, and the progressive increase on the
collective activities of States has already given rise to instances
of action upon the international plane by certain entities which
are not States.'
"Currently, international law is fast evolving to meet

fast-changing events. International law is not imposed by a
political superior upon its subjects. It is derived not from any
particular legislation (Cf. Isagani A. Cruz, International
Law, 1964 ed., p. 3) but its source is largely the collective
acts or agreements of States.
"During the last 50 years, more than 100 new States

have emerged and have challenged traditional international
law doctrines which run counter to their interest. New
principles have thus evolved. Whereas before, intervention in
purely domestic affairs was absolutely illegal, now custom-
ary international law has allowed exceptions for instance,
*when a State renders itself guilty of cruelties or persecutions
of its own materials to the extent of denying them fundamental
human rights, intervention in the interest of humanity is
permissible. In 1971, India used large-scale military forces in
Pakistan, on the allegation that said State was violating
minimal standards of human rights in East Bengal by killing
and imprisoning a large number of the population, causing
mass flights of refugees to India.' (Coquia and Santiago, Public
International Law, 1984 ed., pp. 222 & 223).
"In s u m m a r y , we B u b m i t t h a t t h e agreement b y t h e gov-

ernment to m e e t a n d , thereafter to s i g n a n a c c o r d w i t h the
STATE CONTINUITY A N D STATE SUCCESSION
M N L F in Saudi Arabia under theauspicee of the OIC did not

substantially alter our earlier opinion that, under traditional
international law, a status of belligerency has not been
accorded to the Muslim insurgents.
"However, in light of fast developments in international
law ,we frown upon these acts of acquiescing to meet in a
place outside the territory of the Philippines, especially un-
der the auspices, if not sponsorship of the Organization of
Islamic Conference. They could provide excuses, if not justi-
fications, to vest 'quasi' international personality to the
MNLF, not necessarily belligerency status, but enough to grant
it international rights and warrant intervention by the mem-
bers of the Islamic Conference in what otherwise would have
been clearly a domestic affair. By their sheer number — an
awesome 46 States — the Islamic Conference members could
indeed by agreement spawn new principles of international
law and thus justify their recognition of th MNLF and even-
tual direct intervention in the problem. Let it be remembered
that recognition is a political act not subject to judicial review
by international legal tribunals.
"We are not privy to the reasons behind our govern-

ment's consenting to meet in Jeddah. And the fact that the
M N L F has agreed to abandon its demand for independence
and to negotiate merely for 'full autonomy' or for a 'State
within a State' does not minimize, much less excuse the role
of third States (Saudi Arabia) and organizations (OIC) in the
problem. On the contrary, it gives them a more permanent,
if not more important, role in finding a solution to our Mus-
lim insurgency problem in the future.
"This is not to say that we blame the [then Aquino)

government for its quest for peace. For indeed, if it
[has]succeed [ed] in its attempt to settle this very difficult
and delicate problem, then all this brinkmanship would have
been worth the exercise. [At any rate, if it has had] then it
will have the satisfaction [of] exhaust [ing] all avenues to
peace, even to the extent of endagering its international law
posture. Indeed, peace must be pursued regardless of legal
and political niceties that, anyway, its opponents would in-
voke whether they are used or not."
NOTE: Mindanao peace talks have been initiated by the

FVR government with the M N L F , meeting in Jakarta since

the last week of Oct. 1993 continuing to early 1994.
QUERY
Distinguish insurrection from rebellion?
ANSWER: An insurrection becomes a rebellion when the
civil strife becomes serious and covers a substantial portion of the
territory.
ANOTHER QUERY
These are days of revolts and rebellions. What is meant by
the recognition of belligerency, and what is the effect of this
recognition?
ANSWER:
(a) Recognition of belligerency simply means that rebels
in one State who occupy a substantial portion of the territory,
with an organized government, and with reasonable chances
for success, have collectively been endorsed with an inter-
33
national personality.
(b) The consequences of recognition of a belligerent
community are the following:
(1) responsibility for the acts of the belligerents
shift from the legitimate government to the recognized
belligerent community;
(2) if the legitimate government recognizes the
belligerents as such, it must regard them not as crimi-
nals or traitors but as belligerents and enemy combat-
ants under the rules of war;
(3) third States that accord the recognition must
34
be N E U T R A L in the struggle.
( N O T E : Even if the rebels are not recognized as
belligerents, they are entitled to certain minimal rights,
"'Ibid.
"Wilson and Tucker, op. cit., p. 69.
" S e e Wilaon and Tucker, op. eit., p. 73.
* * S « the Geneva Convention of 1949.
STATE CONTINUITY A N D STATE SUCCESSION
The Ambrose Light

25 F. 408
FACTS: In the course of a revolution in Colombia (a
civil war that finally resulted in the creation of the State of
Panama), an American gunboat captured a vessel named the
"Ambrose Light," belonging to the rebels. The vessel was then
engaged in attacking the vessels of the central government of
Colombia, and was, therefore, engaged not in an act of piracy
but in an act of legitimate warfare. It was proved that the
U.S. had accorded recognition of belligerent rights to said
rebels. Issue: Should the vessel be released?
HELD: Yes, in view of the recognition of belligerent
rights. Such recognition may be express (as in the case of a
declaration of neutrality) or implied (as in long acquiescence
to belligerent acts exemplified by a blockade of ports).
The Three Friends

166 US 1 (1897)
FACTS: In the course of a rebellion in Cuba against
Spain (1696), at a time when the U.S. and Spain were still
maintaining peaceful relations, the collector of customs in
Florida, U.S., captured a vessel named T h r e e Friends," owned
by the rebels. At that time, a U.S. statute allowed the cap-
ture of a vessel engaged in hostile operations against a coun-
try with which the U.S. was at peace. The rebels at that time
had nol been accorded belligerent recognition by the U.S. Issue:
Should the vessel be released?
HELD: No, in view of the lack of belligerent recogni-
tion. Had there been such recognition, the answer would have
been different. The reason is clear: the recognition of bellig-
erency, while not conferring all the rights of an independent
State, concedes to the belligerent government recognized —
certain rights — such as the right of blockade, visitation,
search and seizure of contraband articles on the high seas.
In the instant case, there was never such a recognition
of belligerent rights — what was recognized was merely a
condition of political revolt.
It is the political department of the government that
should recognize this state of belligerency. So far, no such
recognition has been made.
THE PRINCIPLE OF STATE CONTINUITY

Despite changes in the form, n a m e , or leadership in the gov-
ernment, the State continues to be an International Person: this
3
iB the doctrine of State continuity. * If, however, the area is so
diminished or the population so decreased that maintenance of the
State becomes a moral impossibility, the State would ceaBe to exist
as such for lack of the essential requisites for recognition in the
international legal order. The change of government, upon the
other hand, does not change the "sovereignty" considered as a
concept: the metamorphosis is limited merely to the persons exer-
37
cising such sovereignty.
The Sapphire
11 Wallace 164
FACTS: The French vessel "Euryale' collided with the
vessel "The Sapphire." Emperor Napoleon III of France as
owner of the former sued in a California court for the resultant
damages. While the litigation was pending. Napoleon III lost
his throne, and the defendant asked for the dismissal of the
suit. Issue: May the successor of Napoleon I I I continue the
action?
HELD: Yes. The real plaintiff was not Napoleon in his

capacity as a private individual but Napoleon as the French
ruler. The change in government was immaterial for French
sovereignty remained the same.This sovereignty is "continu-
ous and perpetual, residing in the proper successors of the
sovereign for the time being." But the case can be continued
by the new government only if it has been duly recognized.
Effect of change of government:

(1) If the change has been P E A C E F U L (e.g., thru national
elections) the rule is simple: t h e new government assumes the
3
responsibilities and rights of t h e old government. "
(2) If the change was effected thru V I O L E N C E (e.g. revo-
lution), a distinction must be made:
"Lawrence, Principles of International Law. p. 88.

"Sec the Sapphire, 11 Wallace 164.
M
See the Republic of Peru i- Dreyfus Brother*. 38 Ch. D 348.
(a) acta of a political complexion may be denounced;

(b) routinary acts of mere governmental administra-
tion continue to be effective (e.g., sale of railroad tickets,
39
registration of births, sending of postal money order).
(QUERY: If a de facto government replaces the existing gov-
ernment, will Baid de facto government have capacity to bind the
State — insofar as third countries are involved? The answer in the
Tinoco Arbitration Award [Aguilar-Amory and Royal Bank of
Canada Claims, G.B. v. Costa Rica, U N . Rep. Vol. 1, p. 369 (1923)1
was YES, provided that such de facto government has "really
established itself in such a way that all within its influence rec-
ognize its control, and there is no opposing force assuming to be
a government in its place." Otherwise stated, it must be discharg-
ing its functions as a government usually does, respected within
its own jurisdiction. This does not necessarily mean that the rival
government must have been completely ousted; it is sufficient that
it be in control of a major portion of the State. [See the case of George
W. Hopkins v. The United Mexican States, General Claims Com-
mission (1927), p. 42].
EXTINCTION OF STATES
Whenever any of the essential requisites of a State ceases to
exist, the State itself may be said to have met its end.
(1) Involuntary extinction (against the will of the State) may
be caused by:
(a) conquest by and annexation into another State (e.g.,
Poland — 1795; South African Republic — annexed in 1901
by England);
(b) forced dissolution of a federal union (e g., dissolution
of Austria-Hungary).
(2) Voluntary extinction may occur if:
(a) a real union voluntarily dissolves itself (e.g.,
breakup of Norway-Sweden into the separate Stales of Norway
A N D Sweden in 1905);
"United States on Behalf of George Hopkins v. United Mexican States

General Claims Commission, 1927, p. 42.
(b) a real union or a federal State is formed (e.g., the

United StateB of America was formed by the cessation of the
separate international personalities of the component States);
(c) merger of one State with another (e.g., in 1908, the
Congo Free State was merged with Belgium).
(3) Natural extinction may be caused by volcanic eruption
(e.g., Mount Pinatubo eruption in the Philippines ejecting lahar,
resulting in many areas in the vicinity being almost totally de-
stroyed including the Clark Air Base in Angeles, Pampanga), sub-
mersion under the Bea, total emigration (these do not usually take
place)
THE PRINCIPLE OF STATE SUCCESSION

State sut of one State i n the control
40
of the territory possessed by another State resulting in a con-
41
BequehT transmittion generally J>f_rights and obligations and a
m a
change in International personality." State succession y ^
JAX—Universal succession — takes place when one State

completely absorbs the international personality of another State,
and thereby becomes the sole representative in the international
legal order of the rights and obligations of the latter State. This
may be caused:
(1) by the annexation of an existing State thru sub-
jugation or other forcible means;
(2) by the incorporation of one State into a federal
union; and
(3) by the division of a State into a number of smaller,
separate Slates.
Qi^Partial succession — occurB when only a portion of the
temtoryoTone State is taken over by another State, as in the case
of:
" H y d e . International Law, Vol. I. Sec. 120.

"Fenwick, International Law, p. 122.
" S e e Oppenheim, International Law, Vol. 1, p. 151.
" S e e Fenwick. loe. eit.
(1) a grant of independence (thru revolution or thru

peaceful means) to a portion of the territory (e.g., the formation
of the United States after rebelling against England);
(2) a grant of independence to a protectorate;
(3) the separation of a member-State from a federal
union; and
(4) the acquisition thru cession of part of the territory
of one State (e.g., acquisition of the Philippines by the United
44
StateB from Spain).
EFFECTS OF STATE SUCCESSION

Among the effects of State succession are the following:
(1) There is NO succession with respect to political rights
and duties, political treaties (alliance, neutrality, arbitration),
treaties of commerce and extradition, tort, liability, and private
properties.
(2) There is succession insofar as public properties and or-
45
dinary public debts are concerned.
U.S. v. Percheman
7 U.S. Reports
FACTS: Percheman owned a parcel of land in Florida,
under a grant of title to him by Florida while said State was
still under Spain. When Florida was ceded to the United
States, did Percheman's ownership over the land continue?
HELD: Yes, for a cession of territory is never under-
stood to be a cession of private property belonging to indi-
viduals. Only the sovereignty over the state of Florida had
been transferred to the American government. Indeed where
private properties are concerned, there can be no State suc-
cession.
"See Fenwick, International Law, Vol. I, Sees. 80-82.

"See Fenwick, International Law, pp. 124-125; Oppenheim-Lauterpacht.
International Law. Vol. I, Sees. 80-82.
The Eastern Extension;

Australasia and China
Tel. Co. v. U.S. 231 U.S. 326
FACTS: The Spanish Government in the Philippines

entered into a contract with the Eastern Extension Australa-
sia and China Telegraph Company whereby the latter would
constitute at its own expense private submarine cables and
telegraph land lines, which the former would use and for
which it would pay an annual subsidy of 4,500 pounds pay-
able in Manila. After some time, the United States assumed
sovereignty over the Philippines. The question that came up
was whether or not in the absence of a provision in the Treaty
of Paris of 1898, the U.S. was required to assume said con-
tractual obligation of the Spanish government.
HELD: No, the United States was N O T so required. The

cables and lines were not public property; they were privately
owned — and, therefore, did not become U.S. property. The
U.S. was not under compulsion to continue with the said
private contract, just as it had no duty to continue with the
services of Spanish-appointed officials.
Haile Selassie v. Cable and

Wireless Co., Ltd.
1 Chancery 182
FACTS: When Haile Selassie was still Emperor of

Ethiopia, he sued on behalf of his government the defendant
company for a sum of money* The suit was brought before the
British Chancery Division, which eventually rendered a judg-
ment in favor of Ethiopia. The case was, however, appealed
to the British Court of Appeal. In the meantime, Italy in-
vaded Ethiopia, and in due time, the King of Italy was rec-
ognized by the British Government as the ruler of Ethiopia.
The issue, therefore, became this: was Ethiopia still entitled
to the judgment?
HELD: Ethiopia was no longer entitled to the judg-

ment. Firstly, it had been annexed by Italy; secondly, the
Italian Government was recognized as the successor lo the
State of Ethiopia. The right, therefore, to the credit — public
property — became vested in the King of Italy.
ANTECEDENTS T O RIGHTS: RECOGNITION, «7
The Austrian Empire Succession Case

Case No. 39, Annual Digest
(1919-1922)
FACTS: An Austrian gymnastics teacher sued the Minis-
try of Education for certain bonuses due him (from October 1,
1917 to September 30,1918). Unfortunately, however, the Aus-
trian Empire had been broken up after World War I into several
national States, and a Liquidation Commission had been set up
to determine the assets and obligations of the old Empire. The
agreement to prorate among the new States the obligations of
the Empire could not yet be implemented because the inventory
of assets and liabilities was not yet complete. Issue: Pending the
inventory, will the suit of the teacher prosper?
HELD: Since the inventory was not yet complete, the
claim of the plaintiff should in the meantime be dismissed,
inasmuch as it has not yet been determined exactly how much
is the proportionate liability of the Ministry of Education of
the German Austrian Republic (one of the new States formed).
The Court stated furthermore that "it is true that according
to the principles of international law, in cases in which a
territory is ceded by one State to another, or when several
States arise out of one State, the State acquiring the terri-
tory, or the new States, are bound to take over an appropri-
ate part of the obligations of the formed State in proportion
to the assets which it or they have taken over and which
have been created as a result of the activity or under the
protection of the former State. However, in individual cases,
both the taking over of the liability and the extent to which
it has been taken over, must be determined by international
agreement — in this case between the national States in the
former Austrian territory. For this purpose, there had been
set up a Liquidations Commission composed of representa-
tives of those States and entrusted with the function of deter-
mining the status of the assets and liabilities. Only after the
share of liability of the German Austrian Republic has been
determined, will the plaintiff be entitled to bring the action.
EFFECT ON MUNICIPAL LAWS WHEN

SOVEREIGNTY IS CHANGED
What iB the effect of the transfer of sovereignty on the mu-
nicipal laws of a country? This queation was squarely answered in
the caBe of Vilas v. City of Manila, 229 US. 345. It was held in
that case that:
(1) Laws partaking of a political complexion are abrogated
automatically;
(2) Laws regulating private and domestic rights continue in
force until changed or abrogated by the new ruler.
In stating these conclusions, the Court opined as follows: T h a t
there is a total abrogation of the former political relations of the
inhabitants of the ceded region is obvious. That all laws, therefore,
-
in force which are in conflict with the political character, consti-
tution, or institutions of the substituted sovereign lost their force,
46
is also plain. BUT it is equally settled in the same public law
that the great body of municipal law which regulates private and
domestic rights continues in force until abrogated or changed by
the new ruler." In Philippine Sugar Estate Development Company,
Ltd. v. United States, 39 Court of Claims 225, it was said that
municipal laws promulgated during the time the ceding authority
existed and which are generally recognized as necessary to the
peace and good order of the community remain in full force and
effect. Any other rule could hold in abeyance civil functions with
respect to the use, enjoyment, and transfer of private property,
and would lead to results harmful to the inhabitants of the ceded
territory and injurious to the best interest and authority of the
new sovereign as well. This is something that has not been tolerated
in modern times.
QUERY: Is it a rule of international law that generally non-

political laws continue in case of a change in State sovereignty?
ANSWER: According to the United States Court of Claims in
6
the case of Philippine Sugar Estates Development Company, Ltd.,* *
the answer is in the affirmative. Kelsen, however, disputes this
claim: He says:
T h e r e is NO such rule of international law. If the old
law continues, it is only because the successor-State by virtue
of its legislative power — tacitly or expressly allows the old
law to continue as its own law, i.e., the law of the succeeding
"Alvarez v. U.S., 216 U.S. 167.

***39 Court of Claims 225.
State. Although the content of the law may remain the same,
its reason for validity has changed. It is now valid on the
basis of the constitution of the successor State, whereas it
was valid previously on the basis of the constitution of the
47
predecessor State."
It would Beem that Kelsen in this instance appears to
disregard the customs of nations as well as the principles of
the natural moral law as sources of international law: as
adverted to by the Court of Claims in the case cited, it is
customary for successor-states to continue non-political laws;
moreover, the natural moral law decrees that there will be
harmful and injurious results (even to the successor-States)
if a contrary rule would be adopted.
QUERY: If a State ceases to exist as such, are not its
rights and obligations automatically extinguished? If so, what
rights and obligations are inherited by the successor-State?
ANSWER: It is conceded that once a State becomes
extinct as such, its rights and obligations ought to cease; but
justice and fairness demand that international law should
impose upon the successor-State itself certain rights and
obligations I D E N T I C A L of those previously possessed by the
48
extinct State.
— 0O0 —
"Kelsen, Principles of International Law, Footnote, p 292.

"See Kelsen, Principles of International Law, p. 296.
Chapter 11
CONSEQUENCES OF RIGHTS:
ENTRANCE INTO TREATIES
CONSEQUENCES OF RIGHTS OF STATES

There are two (2) very important consequences of the rights
or States:
(1) Firstly, States may enter into treaties and other inter-
state agreements;
(2) Secondly, once the rights and the treaties are violated,
sanctions may be found both in peaceful and forcible remedies.
This chapter deals with treaties; the following chapter (Chap-
ter XII) will deal with the peaceful and forcible sanctions in public
international law.
DEFINITION AND SYNONYMS FOR TREATIES

r Definition — A treaty simply defined is an agreement be-
tween or among States which generally governs their mutual
conduct with one another. More accurately, it is an international
agreement embodied in a single, formal instrument or two or more
related instruments (whatever be their particular name, title, or
designation, whether the name given be treaty, convention, cov-
enant, charter, statute, act, declaration, concordat, exchange of
notes, agreed minutes, memorandum of agreement, modus rir-
endi, executive agreement, or any other appellation) made between
entities both or all of which are subjects of international law-
possessed of international personality and treaty-making capacity.
490
CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES 491
and intended to create rights and obligations, or to establish rela-

1
tionships, governed by international law. Treaties are entered into
only by signatory States or by international organizations which
are generally recognized by one another.
Synonyms — Various appellations have been given to "trea-
ties." (see Draft Articles on the Law of Treaties, International Law
Commission, 57 A.J.I.L. 197). For instance:
(1) "pact" — a special treaty which is formally sentimental;
(Example: Treaties of Guaranty where the signatories agree
to ensure certain rights, such as the perpetual neutralization of
Switzerland — November 20, 1815.)
(2) "convention* — this is more or less an informal treaty
dealing with specific subjects: sometimes it does not even require
2
ratification;
(3) "agreement," "arrangement," "accord" — conventions on
administrative or technical matters;
(4) "concordats" — agreement entered into by the Pope (as
head of the Church) with various Chiefs of States (NOTE: since
they deal generally with religious matters, many writers do not
refer to them as treaties);
(5) "declarations" — these are formal reciprocal agreements
which may deal with:
(a) the rights and privileges of the national of a State;
or
(b) principles in accordance with which States propose
to act; or
1
(c) grounds for mutual action on the part of States/
Note: Two special kinds of declarations are the following:
(a) "rawsEsoJas"— declarations that an error in eti-
quette or in the draftsmanship of a treaty should not be
considered as a precedent;
'Fitzmaurice, Report on the Law of Treaties to the International Law Com-

mission. 1956.
% ''See Wilaon and Tucker, International Law, p. 206.
^Wilson and Tucker, op. eit., p. 209.
(b) lettres reuersales — declarations that an alteration

in ceremonial practices is being made only as an exception to
the general rule.
(6) "protocol" — this may refer either to a supplemental
treaty or to an amendment to a treaty.
NOrE.(^Reîâ_tionjmeans a unilateral statement made by
a State, when sjgning. ratifying, acceding to, accepting or approving
a treaty, whereby it purports to exclude or vary the legal effect of
some provisions of the treaty in its application to that State. (See
Draft Articles on the Law of Treaties, op. cit.).
Several TEMPORARYâjrree meats may be resorted to before
a final treaty is made. Among the names given to such temporary
stipulations are the following:
JrD "Memoire" or "memorandum" — a diplomatic note either
signed or merely initialed by the negotiators containing thejaalient
points or facts of an affair;
0
(2) "proposal — a diplomatic document containing an offer
made by one State to another to settle a controversy;
(3) "note verbal" — an unsigned document which contains
a resume of _a diplomatic conversation;
(4) "exchange of notes" — the exchange of diplomatic cor-
4
respondence prior to arriving at an agreement;
(5) "gentlemen's agreement" — a temporary agreement on
the conduct or course of action to be followed, and arrived at thru
an exchange of diplomatic correspondence. (Note: generally no
5
ratification is required);
(6) "modus vivendi" — a temporary arrangement made in
order to bridge over some difficulty pending a more detailed and
permanent settlement;
(7) "compromis d'arbitrage" — preliminary agreement that
sets forth the controverted issues and arranges for the settlement
6
of the case by a board of arbitrators;
'See Fenwick, International Law, p. 191.

'Wilson, Handbook of International Law, p. 186.
'Lawrence. Principle* of International Law, p. 568.
CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES
(8) "punctationeB" -
pnspH t.fftaty;
(9) "pactum de contrahendo" —<£greemeiit<>n the itejns_pr
=
a proposedjreaty. ^
During international conferences, there are several incidental
stipulations. Among the most popular forms are the following:
( 1 ) "process verbal'' — this is the official record of the daily
proceedings of the conference, and of the provisional conclusions
that have been arrived at; it is usually signed by the duly accredited
delegates or representatives of the States present at the conference;'
( 2 ) "recez" — the act of an international conference or
congress in reducing to writing the conclusions of its deliberations
on a particular subject; this is done prior to final adjournment;
(3) "final act" tor "protocol de cloture") — this records the
winding-up proceedings in the conference: usually recommendations
are herein set forth;
( 4 ) "general act" — the document enumerating the treaties
agreed upon in an international conference: this document becomes
8
itself a treaty, and all the other treaties are annexed to i t .
Misrellq.nj>njis terms included:

(1) "cartels" — agreements made between belligepelits*
regulating intercourse during war. (Example: an agreement con-
9
cerning the mutual exchange of prisoners of war);
( 2 ) "sponsions" or "agreements sub sperati"—agreements
entered into by unauthorized representatives or by delegates in
0
excess of their authority;'
(NOTE: Upon the other hand, the phrase "full powers" has
reference to a formajjngtrurnent issued by the competent authority
o£_a_S±ale, authorizing a given person tcTrepreient the State, e i -
ther for the purpose of carrying out ail the acts necessary for
concluding a treaty, or for the particular purpose of negotiating or
'See Oppenheim. International Law, Vol. I, p. 792.

"See SaU>w, A Guide to Diplomatic Practice, Sec. 618.
"See Wilson and Tucker, International Law, p. 210.
'"Wilson, Handbook of International Law. p. 286.
signing a treaty, or of executing en instrument relating to a treaty.

(Draft Articles on the Law of Treaties, op. cit., Art. 1 (21).
(3) "Btajute," "charier," "covenant," "constitution" — terms
used in connection with the organic rules or constitutions of in-
ternational bodies (e.g.. Statute of the International Court of
Justice; Charter of the UN).
NOTE: Generally, the specific name given to an interstate
agreement is of no significance; sometimes the appellations depend
on the custom of the chancery concerned; carelessness in
draftsmanship may even be the root cause of a specific terminology.
If at all any importance is attached to the name given, it is so not
because of international law but because of municipal legislation.
For instance, it has been said that in relation to "treaties," there
are two (2) kinds of "executive agreements";
(1) the executive agreement which is purely an executive

act affecting external relations and independent of or without
legislative authority (this may also be termed "Presidential Ex-
ecutive Agreement");
(2) the executive agreement entered into by the President
in pursuance of Acts of Congress (this is called "Congressional-
Executive Agreement").
While the first type needs no congressional sanction, the
second kind obviously does."
U S A F F E Veterans, Inc. v. Treasurer of the Phil.

L-10500, June 30, 1959
FACTS: President Franklin Delano Roosevelt of the
United States, foreseeing a Pacific War, called into the service
of the U.S. Armed Forces, the organized military groups in
the Philippines. For incidental expenses, the U.S. Congress
appropriated and transferred to the Philippine Armed Forces
over P570,000,000. Of this amount, P35,000,000 remained
unexpended by December, 1949. Because the Philippines
needed the funds, President Elpidio Quirino thru Ambassa-
dor Carlos P. Romulo proposed to the U.S. Government the
retention of the funds by the Philippine Government as a
loan repayable in ten yearly installments. An agreement was
"See Hyde. International Law. Vol. I I . p. 1406.

entered into on November 6,1950 to this effect — the Romulo-

Snyder Agreement signed in Washington. Since then. Congress
without formally ratifying the Agreement, appropriated funds
for the yearly installments but in 1954, the USAFFE Veterans
Association, Inc., in behalf of Filipino war veterans, sued for
the annulment of the Agreement on the ground inter alia, that
under the Constitution a treaty ought to be ratified by the
Senate.
Issue: Is the Agreement binding on the Philippine Gov-
ernment?
HELD: Yes, the Agreement is binding on the Philippine
Government. Firstly, it is possibly not a treaty, but merely an
executive agreement of the first kind (Presidential Agree-
ment) requiring no Congressional approval; secondly, grant-
2
ing that it is a treaty, still the Act of Congress' appropriating
the needed funds for the yearly installments, constitutes a
ratification of the Agreement — a ratification which places
the question of validity out of the Court's reach, inasmuch as
in the instant case no constitutional principle was invoked to
restrict the plenary power of Congress to appropriate funds
— whether in payment or not of a loan. (Incidental Note: It
may be said that on the part of the U.S. Government, the
Agreement was NEVER submitted to the U.S. Senate for
ratification.)
Central Bank v. Calnag

L-12361, Sept. 28,1957
QUESTION: If as a result of informal negotiations be-
tween a representative of the Central Bank on the one hand
and the American Ambassador and other U.S. representa-
tives upon the other hand, an agreement is arrived at — one
that would simply provide for housing accommodations of
American citizens in the Philippines, will said accord be
considered a treaty or a formal agreement?
HELD: No. In view of its informel character and pur-
pose, this accord cannot be considered, a formal agreement
between the two governments. Certainly, not all agreements
can be considered treaties requiring Senate approval.
"Senate Resolution No. 15 (3).

IN f E R N A T I O N A L L A W A N D WORLD POLITICS
People v. Koh
M a y 29,1959
OUESTION: In a prosecution for an alleged violation of

a Central Bank Circular, does the prosecuting officer have to
prove that the Circular has complied with all pertinent inter-
national agreements binding upon our Government?
HELD: No. The reason is obvious, in view of the usual
certification by the President and by the Central Bank to the
effect that the Circular accords with said international agree-
ment. It is presumed that the officials concerned know whereof
they speak, and that they have performed their duties
properly. Indeed it is incumbent upon the defendant to prove
the existence of any alleged conflict.
y Ichong v. Hernandez
L-7995, M a y 31, 1957
QUESTION: Does the Nationalization of the Retail Trade

Act violate the U.N. Charter or the Declaration of Human
Rights or the Philippine-Chinese Treaty of Amity of April 18,
1947? May a subsequent municipal law amend or qualify a
prior treaty?
HELD: The Nationalization or the Retail Trade Act

(generally granting exclusive rights to Filipinos in the retail
trade) does N O T violate the Charter of the U . N . or the
.Universal Declaration of Human Rights. The U N . Charter
imposes no strict or legal c'dligation on the States regarding
the rights and freedoms of their subjects. And the Declara-
tion of Human Rights contains nothing more than a mere
recommendation or a common standard of achievement for
all peoples and all nations. Members of the U.N. such as
Norway and Denmark prohibit foreigners from engaging in
retail trade. Most nations enact laws against foreigners en-
gaged in domestic trade. The Treaty of Amity between the
Philippines and China of April 18, 1947 has also N O T been
violated. The Treaty merely guarantees equality of treatment
to Chinese nationals in the Philippines — equality "upon the
same terms as the nationals of any country" (except the Parity
Amendment in favor of Americans). And even if the Trade
Law really infringes on the Treaty, it should be remembered
that a Treaty is always subject to qualification or amendment
by subsequent law. A Treaty may never curtail or restrict the

police powers of the State.
The disputed law is not the product of racial hostility,
prejudice or discrimination. Rather it is the expression of a
legitimate desire to remedy a real actual threat and danger
to the national economy posed by alien dominance and con-
trol of the retail business. Freedom and liberty are not real
and positive if the people are subject to the economic control
and domination of aliens.
Kensett, et al. v. Chambers

14 H o w a r d 38
FACTS: At a time when Texas had declared its inde-

pendence from Mexico, and was at war with the latter, a
contract was entered into in Ohio, whereby General Cham-
bers of the Texan Army sold a parcel of land in Texas to
seven citizens of Ohio. The buyers bought the land deliber-
ately to financially aid Texas in its fight against Mexico. At
the time of sale, there was an existing treaty of friendship
between the United States and Mexico. The U.S. then had
not yet recognized Texas as a State. Long afterwards, when
Texas was already recognized and reincorporated as a State
in the United States, the buyers sought specific performance
of the contract of sale: Issue: Was the sale valid?
HELD: The sale was null and void because at the time
of perfection there was still a treaty of friendship between
Mexico and the United States. The neutrality of the U.S.
would certainly be violated by allowing a contract that was
intended to aid the Texans. The subsequent admission of Texas
into the U.S. is immaterial since a void and illegal contract
cannot be ratified by subsequent events. What is vital is the
principle that a contract inimical to a treaty cannot be con-
sidered legal.
In Re Garcia
August 15,1961
FACTS: Arturo Garcia, a Filipino citizen born in Bacolod

City, studied law in Madrid, Spain and thereafter was allowed
by the Spanish government to practice law in Spain. He now
applies in the Philippines for permission to practice law in

the Philippines, without taking the bar examinations, relying
on the provisions of the "Treaty on Academic Degrees and the
Exercise of Professions" between the Republic of the Philip-
pines and the State of Spain (signed at Manila on March 4,
1949 and effective on January 5, 1951 upon the exchange of
ratification by the contracting parties). Under such a treaty,
"the nationals of both countries who shall have obtained
degrees or diplomas to practice the liberal professions in either
of the Contracting States, issued by the competent national
authorities shall be deemed competent to exercise said pro-
fessions in the territory of the other, subject to the laws and
regulations of the latter." (Art. 1 of said Treaty i.Issue: can he
practice law here without taking and passing the Philippine
bar exams?
HELD: No, he has to first take and pass the Philippine

bar exams because:
(1) it is clear that the treaty refers to Filipinos desir-
ing to practice in Spain, and to Spaniards desiring to practice
in the Philippines, not to Filipinos in the Philippines;
(2) the exercise of the profession is subject to the laws
and regulations of the country where the profession is to be
practiced (hence, passing of the bar under the Rules of Court
would be required); and
(3) the Executive department could not have intended
to encroach on the prerogative of our Supreme Court to
promulgate rules for the admission to the practice of law in
the Philippines.
TAX TREATIES
As of January 1, 1994, tax treaties with 20 countries are in

effect, the latest of which includes that with Sweden (renegotiated)
and Italy. In 1990, the tax treaty with India was signed in Manila.
This, along with seven other tax treaties, await ratification in the
Senate. The RP-Israel Tax Treaty which is still under negotiations
held its second session in Manila early in 1990. Upon the other
hand, the first round of re-negotiation of the RP-Indonesia Tax
Treaty was held in Jakarta in August of the same year.
The following is the status of tax treaties as of Jan. 1. 1994:
Status of Philippine Tax Treaties

As of January 1, 1994
Effectivity
1. RP-Denmark 01 January
1974
2. RP-Singapore 01 January
1974
3 RP-Canada 01 January
1977
4. RP-France 01 January
1978
5 RP United Kingdom 01 January 1978
6 RP-Pakistan 01 January 1979
7. RP-Australia 01 January 1980
8. RP-Japan 01 January 1981
9 RP-Belgium 01 January 1981
10. RP-New Zeland 01 January 1982
11. RP-Finland 01 January 1982
12. RP-Indonesia 01 January 1983
13. RP-Austria 01 January 1983
14. RP-United States of America 01 January 1983
15. RP-Thailand 01 January 1983
16. RP-West Germany 01 January 1985
17. RP-Malaysia 01 January 1985
18. RP-Korea 01 January 1987
19. RP-Sweden 01 January 1990
20- RP-Italy 01 January 1990
Pending Ratification Signed on
RP-Brazil (RP ratified 29 on 29 September 1983

November 28, 1983)
RP-East Germany 17 February 1984
RP-Norway (Norway proposed 09 July 1987
Protocol signed on May 22, 1989;

Norway ratified June 19891
RP-Chile (limited to int'l shipping; 18 July 1988
Chile ratified July 19, 1989)
KP Netherlands (Netherlands ratified 09 March 1989
on November 13, 1989)
RP-Spain 14 March 1989

RP-Yugoslavia 21 July 1989
RP-India (India ratified March 1990) 12 February 1990
C. Penaing Signature Concluded on
RP-Romania 01 January 1983
RP-Sri Lanka 10 June 1983
RP-Nigeria 27 September 1985
D. Under Negotiations Last Session
1. RP-Switzerland November 509, 1979 in Berne (4th ses-
sion)
2. RP-Mexico September 28 — October 2, 1981in
Mexico (1st session)
3. RP-Saudi Arabia February 24-28, 1989 in Riyadh (2nd
session limited to international air
transport)
4. RP-Israel January 29 — February 1, 1990 in Ma-
nila (2nd session) July 24-27, 1989 in Je-
rusalem (1st session)
E. Re-negotiation Last Session
1. RP-Indonesia August 21-23, 1990 in Jakarta (1st ses-
sion)
THE DISPUTED KURIL ISLANDS
Russian President Boris Yeltsin, in a December 1992 decree,

proposed that foreigners be allowed to lease land on the disputed
Kuril Islands, an idea likely to create renewed friction between
Russia and Japan.
The two countries both claim the Kuril Isands located off the
northern tip of Japan and seized by the Soviet Union at the end
of World War II. The 50-year old jurisdictional dispute has pre-
vented the two countries from signing a peace treaty formally
ending the war, and has kept Japan from giving large-scale eco-
nomic aid to Russia. Yeltsin's decree would allow regional authori-
ties on the Kuril Islands to lease land to foreign invetors for up to
99 years.
CONSEQUENCES OF RIGHTS: ENTRANCE I N T O TREATIES 501
Meant to encourage economic development on the disputed

Tour eastern Kuril Islands, the decree would set up a special eco-
nomic zone on the entire Kurils chain including the four southern
islands claimed by Japan. One resultant effect: the companies
investing in the islands woud be offered significant tax breaks and
other advantages.
Tokyo has refused to grant Moscow significant economic aid
until it hands back the four southernmost islands, known in Ja-
pan as the Northern Territories, which Soviet soldiers seized in
the final days of World War I I .
In a recent move, Russian Pres. Yeltsin, in a visit to Japan
during the first week of October 1993 indicated Russia might re-
turn two of the four islands disputed.
ANTARTIC TREATY SYSTEM
This refers to an international legal system based on the

Antartica Treaty of 1959, which holds in abeyance the territorial
claims by States to portions of the Antartic continent and consigns
the continent to be used only for peaceful purposes. (Bledsoe &
Boczek, The International Law Dictionary, 1987 ed., p. 140).
ARCTIC REGION
As the north polar region contiguous to the U.S., the then

Soviet Union, Canada, Norway, Denmark (Greenland), and Ice-
land — claims to portions of the Arctic — are based upon discov-
ery, the sector theory (which draws meridian lines from the pole
of the farthest extremity of the contiguous State's land mass), and
such concepts as continuity of the continental cablehand and
contiguity (proximity of the aforementioned States to portions of
the foreign wastes). (Blesoe & Boczek, The International Law
Dictionary, 1987 ed., pp. 141-142, 152).
THE DOWNING OF KAL FLIGHT

007 ON SEPTEMBER 1,1983
The K A L flight number 007 services a route from New York

to Seoul with a stop in Anchorage/Alaska. From there to its final
destination in Korea it follows a path just outside Soviet territory,
for the entry of which it therefore does not hold a permission
under an international treaty. After its start from Anchorage Air-

port, the Boeing 747 flying this route on September 1, 1983 strayed
off its projected path to the north and drifted into Soviet air Bpace.
It overflew the tip of Kamchatka peninsula as well as the Kurile
Islands and returned into international air space over the Sea of
Okhotsk; the aircraft entered Soviet territory anew over the island
of Sakhalin, which is a Soviet "Non-Free-Flying Territory" closed
to all international air traffic and as such marked on the maps
employed by pilots. Soviet fighter jets had been tracking the plane
from its first intrusion into Soviet airspace for two and a half
hours when the aircraft was downed by an anti-aircraft missile
filed by one of the Soviet interceptors. At this point, the Korean
airliner was about to definitely leave the Soviet airspace; it had
veered off the projected route by about 700 kilometers. (Ingrid L.
Jahn, "Applying International Law to the Downing of Korean Air
Lines Flight 007 on September 1, 1983," German Yearbook of In-
ternational Law, Vol. 27, 1984, pp. 444-445).
Between the parties concerned (i.e., the Soviet Union, South

Korea, as well as the various intelligence services listening in on
the radio communication between the planes involved and ground
installations), it remained in dispute if and in what m a n n e r the
Soviet authorities had undertaken sufficient efforts to make the
Korean plane aware of its intrusion in ordr to effect its landing at
a Soviet airport as a means of avoiding its destruction and the
resulting death of all its passengers. It seems certain, however,
that should such Soviet attempts have been made, the plane's
crew remained totally obvious to them continuing in a straight
tine on the route which led to their end. More important perhaps
is the lack of any certain insight into the causes for the plane's
digression, which took it deep inside Soviet territory. Western
sources have mainly raised three possibilities: a (highly improb-
able) failure of the aircraft's navigation systems; human error in
programming the navigation computer; and intentional intrusion
on a fuel-saving short-cut. The Soviet Union on the other hand to
this day charges that theKorean airliner was on an intelligence
gathering mission over highly sensitive Soviet strategic facilities
giving the Soviet Union the right to stop the plane by whatever
means after it had ignored repeated orders to land. Moreover.
Soviet authorities insist, that they had mistaken the Boeing for an
American military reconnaisance plane of the type RC-135 which.
as confirmed by United States officials, operate in the same geneal

area. The ICAO's investigation did not unearth any conclusive
evidence permitting to definitely rule out a possible confusion on
the plane's non-military charater, even though American sources
insist, that the Soviet fighters could not have had any reasonable
doubts about the plane's true identity because the Soviet pilots
were too close to downed Boeing. On the other hand, there is also
"no evidence that complete visual identification procedures were
employed."
Given that the Soviet Union violated international law, that

country is liable to pay damages in applicaton of the "principle of
international law, and that any breach of an engagement involves
an obligation to make reparations." It is disputed, however, whether
that breach per se consitutes a case of state responsibility, or
whether, additionally, it must have been the result of either an
intentional or a negligent action on thepart of the violator of in-
ternational law. This distincition is of importance here, since the
Russians claim to have the jet liner was Ilying without the inter-
nationally required lights. Neither State practice nor the litera-
ture or case law present a unanimous answer on thispoint. The
International Law Commission during its deliberations on a draft
for a Convention on State Responsibility after much debate de-
cided not to incude intention or negligence as prerequisite for State
responsibility. This, as well as other signs, indicate a tendency in
international law away from the older view which did insist on
either intention or negligence. However, independent of how one
resolves this dispute, the Soviet Union remains liable, since, as
the ICAO-Report confirms any error of the Soviet pilots regarding
the nature of the plane could have been avoided by employing
proper visual identification procedures. There can be no doubt
that in view of the very grave consequences any mistake on the
part of the pilots to assure certain identification, for which there
was ample opportunity given the very long period of tracking
prior to the attack. Thus, even if Soviet authorities acted bona
fide when deciding the destruction of the plane, they still acted
negligently for failing to properly identify the plane. (Jahn, supra,
pp. 457-548).
As a result of the KAL-incident, the ICAO member-States, on

May 11, 1984, approved an amendment to prohibit the use of
weapons against civilian aircraft (i.e., Bulletin of Legal Develop-
ments, Vol. 19 [1984], 112, and LAS Vol. 23 [19841, 705 sea).
TREATY VIOLATIONS IN INTERNATIONAL T R A D E

Structures and organizations such as the General Agreement
on Tariffs and Trade ( G A T T ) and the United Nations Conference
on Trade and Development ( U N C T A D ) should govern more effec-
tively in respect of the reciprocal rights and obligations of their
member-countries. In this connection, member-countries should be
made to observe their obligations more dutifully as such observ-
ance redounds to the common good of all member-countries. Sanc-
tions or penalties should be imposed unreservedly on any erring
member-country. In this way, the tendency to disregard existing
agreements or arrangements is thwarted. Structures and organi-
zations should pursue their goals without preference or partiality
towards any bloc or pressure group or country. Otherwise, their
effectiveness as instruments for the promotion of trade on a free
and multilateral basis becomes suspect.
y ^ C l J I f i S I F K J A T r O N O F TREATIES
JJJ— From the viewpoint of parties thereto

(a) bipartite (two signatories);
(b>— tripartite (three signatories); and
13
(c) multipartite (more than three signatories).
(2) From the viewpoint of who should shoulder the obliga-
tions-^^' ' "
(a)_ unilateral (only one signatory is bound);

(b]_ bilateral (the two signatories are responsible);
(c) trilateral (three signatories are bound); and
IdJ^ multilateral (four or more or all of the signatories
are given certain obligations).
^J3TV"- From the^viewpoin,t r,C prp«jprirp nr Jim in i nf rrrfiHitifrns
_ia) conditional (either suspensive or resolutory); and
(b) unconditional.
l3
See Kelsen, Principles of International Law. p. 317.
CONSEQUENCES OF RIGHTS: ENTRANCE INTO TREATIES-' 506
ESSENTIAL REQOtSfTES FOR A V t t J D TREATY

The following are the essential requisites for a valid treaty:
^(1) the parties must have the capacity to contract (fully
sovereign States and international organizations have such capac-
ity);
S(2) the agents must be fully empowered or competent to act

onjjehalf of the States represented;
(3) the parties must freely give their consent (in a treaty of
peace, there is always undue influence or intimidation: thiB is only
natural, hence duress on this occasion should not invalidate the
14
consent-that has been given);
(4) the object and subject matter must be in conformity with

the principles of international law, and thus, be within the com-
merce of nations; and
'^(5) the treaty must be properly ratified in accordance with
11
the constitutional processes in the various States concerned.
STEPS IN TREATY-MAKING
The following are the salient steps in the process of treaty-
making:
(1) diplomatic negotiations;
signing of the treaty by the representatives (the signa-
tories are sometimes referred to as "ambassadors extra-ordinary
19
and envoys plenipotentiaries" and are given "full powers");
(3) ratification of the treaty by the constitutional organs of
the respective States (this is really more important than the signing:
when ratified, the treaty, unless otherwise provided for, generally
retroacts to the time of the signing insofar as States are concerned;
it becomes effective upon the respective nationals upon proclamation
17
or as prescribed by municipal legislation. Informal ratification is
sometimes referred to as "acceptance." Ratification may be made
"Kelsen, op. cit., p. 326.

"See Wilson and Tucker, International Law, p. 219; Fenwick, Interna-
tional Law. p. 331.
'•See Kelsen. op. cit., p. 327.
"See Fenwick, International Law, p. 334.
with or without reservations: the reservations, however, must be

1
compatible with the object and purpose of the treaty or convention; "
(4J—-exchange of the ratification instruments or deposit with
the government of one of the contracting parties or with an organ
of an international organization (the depositary is then obliged to
19
notify the other contracting parties); and
(§1— Registration with, and publication by, the Secretariat of

10
the United Nations. This requirement under the Charter applies
to treaties concluded by members with members or with non-
members. But the Charter does not declare an unregistered treaty
to be invalid; it provides only that an unregistered treaty shall not
be considered as valid by the organs of the United Nations, such
as the General Assembly, the Security Council, and specially the
International Court of justice. Otherwise stated, an unregistered
21
treaty may not be invoked before such organs. If a member per-
sistently violates this obligation to register, it may possibly be
72
expelled under Art. 6 of the Charter.
ACCESSION TO TREATIES
Accession is the process whereby a non-signatory Stale later

beeomea u party to a treaty: -
(1) in all its provisions (in which case the process is termed
"accession proper");
(2) or in some of the provisions (in which case the process

is called either "adhesion" or "adherence").
Accession and adherence can be possible only if the treaty

expressly allows the same."
Example: The N A T O Treaty or April 4, 1949 states in its Art.

10: "The Parties may, by unanimous agreement, invite any other
European State in a position to further the principles of this Treaty
'"Advisory Opinion, International Court of Justice. Reservations to the

Convention on Genocide, May 28. 1951.
19
Kelsen, Principles of International Law. p. 334.
'•"Art. 102. UN Charter.
" A r t . 102, No. 2, UN Charter.
23
Kelsen, Principles of International Law, p. 340.
"Kelsen, Principles of International Law, p . 340.
and to contribute to the security of the North Atlantic area to

accede to this Treaty."
The conclusion of a treaty may be differentiated from ac-
cession or adherence to it in the following ways:
(1) In the conclusion of a treaty, there is an opportunity to
influence the contents of the treaty by negotiation; this is absent
in the case of accession where the only alternatives are submission
or refusal.
(2) In the conclusion of a treaty, all the contracting parties
must signify concurrence; in accession, even if one of the parties
does not like the treaty any more, the acceding State may still
24
join, so long as the clause on the accession IB valid.
Approbation of a treaty simply means the act by which a non-
signatory State, without becoming in any way a party to a treaty,
assumes a favorable attitude toward its provision."
FUNDAMENTAL PRINCIPLES CONCERNING TREATIES

There are at least two (2) fundamental principles governing
the application and enforcement of treaties:
^ \ ) llL^^âcta sjmjêwanda" (treaties muBt be observed in good
Faith) (In other words, treaties have a binding effect, for by means
2
of them rights and obligations are established.) " If a treaty is
contrary to a signatory's national constitution, the international
legal order demands faithful compliance with the treaty, to avoid
international embarrassment." If necessary, the State concerned
must even modify its national legislation and constitution to make
2
it conform to the treaty. * It is rather regrettable that in an obiter
dictum in the Ichong v. Hernandez Case, L-7995, May 31, 1967,
the Philippine Supreme Court had to remark that a treaty is al-
ways subject to qualification or amendment by a subsequent law
"See Kelsen. op. cit., pp. 340-341.

'''See Wilson and Tucker, International Law, p. 218.
"Kelson. Principles of International Law. pp. 96, 314.
17
See Polish Nationals in Danzig. Decision of the Permanent Court of In-
ternational Justice, Pub. Ser. A/B, No. 44, p. 24.
"Exchange of Greek and Turkish Population Case, Decision of the Per-
manent Court of International Justice. Publ. Ser. B, No. 10, p. 20.
on the ground that a treaty may never curtail or restrict the police
powers of a State.
^ ( 2 ) "rebus sic stantibus" (a vital change of circumstances
ows a State to unilaterally withdraw from a treaty). N O T E : The
rationale of the principle eeeme to be this: if the change in cir-
cumstances so affects a signatory-State that for it to continue to
comply with the treaty provisions would seriously jeopardize its
own existence, a withdrawal is allowed because its fundamental
right to existence is S T R O N G E R than its duty to comply with the
treaty. It is alleged further that if such a principle is recognized
in the national order, it should also be allowed in the international
sphere. For instance. Art. 1257 of the Civil Code of the Philippines
states that "When the service has become so difficult as to be
manifestly beyond the contemplation of the parties, the obligor
may also be released therefrom, in whole or in part."
Opponents of the principle, upon the other hand, argue:

(a) that the analogy with the principle in national law
is wrong because in the national order, an impartial authority
(a court of justice) is established to decide the question of
whether or not there has been a vital change in circumstances;
whereas in international law, the parties feel themselves
competent to answer the question,
(b) that the precise function of a treaty is to stabilize

legal relations* between States in the "stream of changing
circumstances"; therefore, to consider a treaty abrogated
simply because of "changing circumstances" is to render
H
superflous the need for i t .
QUERY: Is the principle of rebus sic stantibus a rule of
international law?
ANSWER: Although the doctrine was rejected by the
parties to the Treaty of Paris in the London Conference of
1871, and although up to the present, "no international tribu-
nal has unreservedly confirmed the existence of this rule,"
still by I M P L I C A T I O N the decision of the Permanent Court
of International Justice in the Case of the Free Zones of Upper
Savoy and the District of Gex affirmed the existence of the
rule, but denied its applicability in the suit before it because
"Kelsen, Principle* of International Law, p. 369.

France failed to prove "an essential change of circumstances."

If at all the principle can be admitted, it is understood that:
(a) the change must be so substantial that the founda-
tion for the treaty must have altogether disappeared;
(b) the change must have been unforeseen or unfore-
seeable at the time of the perfection of the treaty;
(c) the change must not have been precipitated by the
State invoking the principle;
(d) the doctrine has to be availed of within a reason-
able period after the taking place of the change;
(e) the duration of the treaty must have been indefi-
nite; and
(0 the doctrine must not have any retroactive effect,
i.e., it must not adversely affect treaty provisions that had
already been complied with prior to the essential change in
30
the situation.
REVISION OF TREATIES
By the revision of a treaty is understood the mode of changing
31
its contents to adapt it to changing circumstances. Art. 19 of the
Covenant of the League of Nations provided that "The Assembly
may from time to time advise the reconsideration by Members of
the League of treaties which have become inapplicable, and the
consideration of international conditions whose continuance might
endanger the peace of the world." It should be noted, however,
that while this provision authorized the League to give advice on
what treaties ought to be reconsidered, it had no power by itself
to revise treaties. Parenthetically it may be mentioned that this
32
Article 19 was never applied.
The Charter of the UN has no express provision on the matter,
but by implication from Art. 14 thereof, the General Assembly
33
may make recommendations on the revision of treaties.
"See Kelsen, Principles of International Law, pp. 358-360: Fenwick, In-

ternational Law, pp. 354-355; Wilson and Tucker, International Law, p. 222,
Brierly. The Law of Nations, p. 245.
"KelBen. op. cit.. p. 360.
"Kelsen, op. cit., p. 361.
"Ibid.
510 INTERNATIONAL LAW A N D WORLD POLITICB
The renewal of a treaty means the prolonging of its life as

3
such; *itB reintegration means its incorporation in a new or other
treaty; and its reconfirmation simply refers to' an express state-
ment in a new treaty that a previous treaty whose validity might
M
have become doubtful still remains valid and binding.
INTERPRETATION OF TREATIES
Generally, the rules for the interpretation of contracts are
Ifi
followed in the interpretation of treaties. Thus, specific provi-
sions prevail over general ones; unequal provisions may be inter-
37
preted strictly by the party suffering the greater burden; intention
1
and spirit should outweigh the literal wording" and its intention
may possibly be obtained by an inquiry into the negotiations prior
39
to the treaty. Interpretation by the national courts of one State
cannot bind the other, but that made by an international tribunal
40
ought to have a conclusive effect.
^CAUSES FOR THE TERMINATION OF TREATIES

Treaties may:
^1) expire —
v • (a) because the term may have ended
(b) because a resolutory condition has occurred
(c) because the purpose has been achieved
(d) because the objective has become an impossible
thing to accomplish
(2) be dissolved —
(a) because a party to a bipartite treaty has become
extinct
"Oppenheim, International Law. Vol. 1, pp. 358-359.

"Ibid.
M
Kelseii. op. cit., p. 321.
"Wilson, Handbook of International Law, p. 193.
M
Fenwick, International Law. pp. 342-345.
^Kelsen, op. cit.. p. 321.
4U
See Tunis-Morocco Nationality Decrees Cane, P.C.I.J. Pub. Ser. B. No 4.
pp. 29-30.
(b) because of mutual withdrawal or cancellation

(c) because of a unilateral denunciation (but only if
such a right to unilaterally denounce is given in the treaty)
(d) because of a unilateral act of termination if the
other party has violated the terms of the treaty
(e) because of "rebus sic stantibus"
(f) because of a subsequent change in status of one of
the parties
( g ) because war has broken out (however, in some cases
the treaties may only be suspended; in still other instances,
the treaties may be specially applicable only DURING the
war)
(h) because of the conclusion of a subsequent incon-
sistent treaty (Be it noted, however, that in case of conflict
between the UN Charter and subsequent treaties between or
41
among States, the former prevails.
(3) be annulled or voided
(a) because one of the signatories to the treaty was at
the time of perfection incapacitated
(b) because error or fraud (but not force, pressure, or
undue influence) may have vitiated the consent of the con-
tracting parties
(c) because the object of the treaty is contrary to the
principles of international law
(d) because the subject matter of the contract is outside
42
the commerce of nations.
QUERY: May a UN Member unilaterally withdraw from the
UN?
43
ANSWER: While a UN Member may be suspended or ex-
44
pelled by the General Assembly upon the recommendations of
"Art. 103, UN Charter.

"See Wilson and Tucker, International Law, pp. 223-225; Fenwick. In-
ternational Law, p. 350; Kelsen, Principles of International Law, pp. 354-358.
the Security Council, it cannot legally unilaterally withdraw from

the Organization: in this sense, it would always be bound by the
UN Charter (which by itself, is a multipartite and multilateral
45
treaty). Be it noted however that Indonesia withdrew on Jan. 20,
1965, but on Sept. 19, 1966 (after Sukarno had been deposed), the
country notified the UN Secretary-General of her decision to resume
participation in its activities. On Sept. 26, 1966, the General As-
sembly took note of the decision, and invited the representatives
of Indonesia to take their seat in the Assembly. The representa-
tives entered the Hall amid thunderous applause — a prodigal son
had just returned.
BAR
Give the effect of W A R on treaties between belligerents.
ANSWER: In the absence of a specification on the treaty
of peace at the conclusion of the war, the following rules
prevail:
(1) ABROGATED are political, alliance, and commer-
cial treaties.
(2) C O N T I N U I N G are treaties designed specifically for
wartime (like rules for the treatment of war prisoners and
the conduct of the war) and pacta transitaria.
(3) S U S P E N D E D are non-political treaties (like the
Postal Convention).
BAR
Give the effect of STATE SUCCESSION on treaties or
the extinguished State.
ANSWER: If the succession is T O T A L (and the pred-
ecessor is completely extinguished) all treaties, political or
not, entered into by the predecessor are abrogated, with the
exception naturally of transitional provisions (pacta
transitoria). If the succession is P A R T I A L , the treaties gen-
erally continue to be effective except in case they are in-
consistent with the rights of the new sovereignty.
" S e e Kelaen, op. cit.. p 357.

CONSEQUENCES OF RIGHTS: ENTRANCE I N T O TREATIES 513
BAR
For a newly-independent State, one which has recently
freed or is attempting to free itself from the fetters of coloni-
alism, which maxim, pacta sunt servanda or rebus sic stan-
tibus is more meaningful? Explain.
ANSWER: For such a State, the two maxims "pacta sunt
servanda" and "rebus sic stantibus" are equally meaningful.
The first simply means that the provisions of a treaty or
agreement must be complied with in good faith and complete
honesty; the second means that a treaty ceases to be binding
when an essential or substantial change of the circumstances
in which it was concluded has occurred in such a manner
that the rationale for the treaty itself has disappeared. It is
patently obvious that one maxim complements (and does not
contradict) the other, for if the reason for the treaty has in-
deed ceased to exist, good faith and justice demand an inter-
pretation of its provisions in light of subsequent happenings.
Be it remembered, however, that while the first maxim en-
joys universal recognition, the other is still regarded as of
doubtful international validity.
BAR
Name some treaties to which the Philippines is a signa-
tory.
ANSWER:
(1) The Treaty or General Relations between the Phil-
ippines and the United States (July 4, 1946). This Treaty
provided, inter alia, for the following:
(a) the recognition of the independence of the
Philippine Republic by the United States;
(b) the grant of diplomatic immunity to the dip-
lomatic officials of both countries;
(c) the assumption by the Philippines of all valid
and subsisting governmental debts; and
(d) the continuation by the U.S. Supreme Court
of all cases of Philippine origin that were already pend-
ing before that body on July 4, 1946.
(2) The Philippine-United States M i l i t a r y Bases

Agreement. (March 14, 1947) (See the Chapter on Jurisdic-
tion in this book).
(3) The Philippine-United StateB Mutual Defense
Treaty. (August 13, 1951, signed at Washington, D.C.) This
Treaty provided inter alia, for the following:
(a) the "settlement of disputes between the two
countries thru peaceful means;
(b) the development of their capacity to resist
armed aggression;
(c) each Party recognizes that an armed attack in
the Pacific Area on either of the Parties would be
dangerous to its own peace and safety and declares that
it would act to meet the common danger in accordance
with its constitutional processes.
(4) The Treaty of Peace with Japan (September 8.
1951). (This concluded the last Pacific War).
(5) The Southeast Asia Collective Defense Treaty. (The
Manila Pact or the SEATO Treaty) (1954, Manila). (See the
Chapter on Existence and Self-Preservation in this book).
(6) The Convention on the Prevention and Punishment
of the Crime of Genocide. (The Philippines ratified the Con-
vention with reservations on June 23, 1950).
(7) The UN Charter. (This was signed by the original
members of the UN in San Francisco, California on June 26,
1945).
(8) The Universal Declaration of Human Rights. (This
was adopted by the General Assembly of the UN without a
dissenting vote on December 10, 1948). (This, however, is not
exactly a treaty.)
Some of its provisions follow:
(a) All human beings ore born free and equal in
dignity and rights. They are endowed with reason and
cons-cience and should act towards one another in a
spirit of brotherhood.
(b) Everyone is entitled to all the rights and
freedoms set forth in this Declaration, without distinc-
tion of any kind, such as race, color, sex, language, re-

ligion, political or other opinion, national or social gij-
gin, property, birth, or other status. Furthermore, no
distinction shall be made on the basis of the political,
jurisdictional, or international status of the country or
territory to which a person belongs, whether it be inde-
pendent, trust, non-self governing or under any other
limitation of sovereignty.
(c) Everyone has the right to life, liberty, and the
security of person.
(d) No one shall be held in slavery or servitude;
slavery and the slave trade shall be prohibited in all
their formB.
(e) No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.
(0 Everyone has the right to recognition every-
where as a person before the law.
(g) All are equal before the law and are entitled
without any discrimination to equal protection of the
law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against
any incitement to any such discrimination.
(h) Everyone has the right to an effective remedy
by the competent national tribunals for acts violating
the fundamental rights granted him by the constitution
or by law.
( i ) No one shall be subjected to arbitrary arrest,
detention, or exile.
(j) Everyone is entitled in full equality to a fair
and public hearing by an independent and impartial
tribunal, in the determination of his rights and obliga-
46
tions and of any criminal charge against him.
QUERY
Are any of the following acts violative of the Universal
Declaration of Human Rights:
"Art*. 1-10.
(a) The Filipino First Policy?

(b) The refusal to grant a visa to a Time correspmideni?
(c) The refusal of Australia to admit the Filipino hus-
band of one of her citizens?
(d) The mass deportation of 600,000 Koreans who have
since 1945 been residents of Japan, a great number of whom
emigrated there much earlier, to North Korea?
ANSWERS:
(a) The Filipino First Policy, correctly understood as
the grant of preferences to Filipino citizens so long as no
vested rights of foreigners are jeopardized, is certainly NOT
violative of the Universal Declaration of Human Rights. Af-
ter all, this is nationalism of the highest degree. While it is
true that under Art. 7 of the Declaration, [j|ajl are equal be-
fore the law and are entitled without any discrimination to
equal protection of the l a w j ^ t i l l a policy granting preference
to one's own nationals cannot be said to be arbitrary and
discriminatory, if all aliens are classed in the same category.
The right of a nation to seek its rightful place in this world,
without in the process being unfair to other nations, is im-
plicitly recognized in the Declaration. It ought to be noted,
however, that even more important than a "Filipino First
Policy" would be a "Philippines First Policy" for in the latter
case, it is the country itself, as distinguished from the citizen,
that would be given preeminence.
(b) The refusal to grant a visa to a Time correspondent
would not violate the Declaration if the correspondent in
question, in the opinion of our Government, has broken time-
honored principles of journalistic ethics — a breach that would
result in an unjustified loss of prestige both on the part — of
the Government in general and on the part of certain Philip-
pine officials in particular/As a matter of fact, Art. I of the
Declaration says that JAyl human beings are born free and
equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit
of brotherhoodj If a journalist should attempt to subvert the
dignity not only of his fellowmen but also of a country, he
cannot claim any privilege to enjoy the hospitality of said
State.
(c) The refusal of Australia to admit the Filipino hus-

band of one of her citizens, if based purely on racial grounds,
is a gross violation of Art. 2 of the Declaration. Decency pro-
hibits discrimination due to differences in color op^race.
Moreover, under Art. 16 (No. 3) of the Declaration,/She fam-
ily is the natural and fundamental group unit of society and
is entitled to protection by society and by the State/] To sepa-
rate a husband from his wife without justifiable ground would
be to destroy the family.
(d) The mass-deportation of bono fide resident aliens

indubitably goes against Art. 13 (No. 1) of the Declaration:
Êveryone has the right to freedom of movement and resi-
dence within the borders of each StateJjBesides, these aliens
will have to leave their houses and lands behind. Under Art.
17 (No. 2) of the Declaration: "No one shall be arbitrarily
deprived of his property." We may, therefore, consider this
mass deportation as plain inhumanity of the highest order
resulting as it does in unfair inconvenience and financial
waste.
Sei Fuji v. State of California

Advance California Appellate Reports
May 5, 1950, p. 154
FACTS: The California Alien Property Initiative Act of

1920 limits ownership and use of property by aliens not
qualified for naturalization only to such rights as they may
have by virtue of treaties existing between their countries
and the United States. Is this Act still valid in light of
the UN Charter and the Universal Declaration of Human
Rights?
HELD: The Act is I N V A L I D because it is in direct con-

flict with the terms and purposes of the UN Charter and is
incompatible with Art. 17 of the Universal Declaration of
Human Rights: "(1) Everyone haB the right to own property
atone as welt as in association with others. (2) No one shalt
be arbitrarily deprived of hiB property." It cannot be denied
that the Charter of the UN has become the Supreme Law of
the Land in accordance with the United States Constitution,
Art. VI, Clause 2.
[OBSERVATION:
It would seem that the "rights" enumerated in the Dec-
laration of Human Rights are not really rights that may be
enforced before an international or national tribunal, for the
Declaration (in itself a mere recommendation) establishes no
4
such tribunal. ' However, several international tribunals have
been set up precisely for the enforcement of these rights.)
FOREIGN DEBT AND MORALITY

Political scientist Joseph S. Nye Jr. (also intelligence adviser
to President Bill Clinton) once remarked that many international
issues — global debt, for example, resist solution by classical means.
He added that international debt put new pressures on govern-
ments.
It cannot be said that the burden of accumulated debt con-
tinues to weigh heavily on lenders and borrowers alike. In this
sense, it was hoped that they could grow their way out of the
problem.
London School of Economics-trained George Soros, author of
The Alchemy of Finance, wrote: "International lending knows no
equivalent procedure for settling bad debt. There have been many
precedents where debts have not been paid in full. Usually, non-
payment has resulted in total default and the situation was nor-
malized only several decades later when the lenders were happy
to settle for a few cents on the dollar."
In the case of the Philippines, many concerned quarters are

batting for a moratorium of the debt payment, a selective repu-
diation, or even an outright repudiation of the debt. Even our own
Jaime Cardinal Sin, Archbishop of Manila, has joined the clamor
for "a just and humane solution" to our problem of debt.
In the lucid words of His Eminence: "Even as international
creditors, especially foreign commercial banks, driven by the hard
logic of capital, resist the idea of a debt moratorium in this hour
of our national need, we draw hope in the fact that such inter-
national bodies as the United Nations are now giving serious
*'See Kelsen. Principle of International Law, pp. 144-145: nee also Ichong
v. Hernandez, L-7995, May 31, 1957.
CONSEQUENCES OP R I G H T S ENTRANCE INTO TREATIES 519
attention to t h e problem of Third World indebtedness, and that

such countries as Poland a n d Venezuela have both received sub-
stantial debt condonations- We are hopeful that many more citi-
zens' groups from the farmers, laborers, urban poor, professional
and academic sectors; are taking cognizance of the disproportion-
ate amounts of our budget appropriated for debt servicing and the
harrowing effects on our poor. We have hope, therefore, that leg-
islative measures to regulate our debt payments, to distinguish
between just and fraudulent debts, and to place the service of our
poor above the service of our debtB — may finally be passed."
Common sense dictates that our country can only achieve

economic growth thru debt condonation by our foreign creditors.
Hut should this question of economic growth of the country be
always equated with the recurring debt issue? In the opinion of
Nobel prize-winning economist James Tobin: "To meet aspirations
of an increasing standard of living, we need continuing growth in
productivity. That's what people wants, so we need to have gov-
ernment policies that produce it."
Contrast this with the notion of Milton Friedman, another
Nobel prize-winner for economics: "When the government under-
takes to make the rate of economic growth a governmental issue,
it ends up doing harm rather than good because it ends up inter-
fering with the choices individuals make. Whatever rate of growth
comes out of individual decisions is the right rate of growth."
But again, this brings us back to square one. What moral
stand should we have apropos to the foreign debt issue? Of course,
our (Philippine) foreign creditors would say outright that "a debt
non-payment or a moratorium or even selective repudiation" is
unacceptable — a violation of international responsibility vis-a-vis
international law and .therefore, an immorality on our government's
part, a breach of international commitment.
Patrick Devlin, author of Morals and the Criminal Law
put it succinctly when he defined "punishable immorality" in this
light: "Immorality then, for the purpose of the law, is what every
right-minded person is presumed to consider immoral." A general
principle of law is t h a t a debt Bhould only be paid if it is a 'just'
debt. Conversely, if the debt is tainted with fraud, then by all
means, said debt should not be repaid. A just debt, we are all
cognizant of, is similar to a valid contract — no fraud, no deceit,
no involuntariness in t h e entering of t h e contract or agreement,
etc.
Space limitation does not permit an enlargement on the

analysis of this special form of responsibility, so that in this con-
nection we shall confine ourselves- to the formulation of a few
statements indispensable to the classification of the different types
of responsibility:
One. The basis of the liability is permissible activity; for the
supervention of responsibility no wrong or unlawful conduct is
needed. It is sufficient to establish an effective damage and the
causal relation between the damage and the activity;
Two. Responsibility has to be accepted owing to the increased
hazards involved in debt repayment activities. Consequently, li-
ability is extremely strict, i.e., it is absolute of which even the
demonstration of force majeure will not relieve.
Three. Responsibility is always of a material nature implying
reparation, i.e., it entails the reparation of the damage caused
only.
Four. Responsibility exists only between the State causing
the damage and the State suffering it.
There are certain deficiencies implied in the classifications.
More than anything else, moral responsibility cannot become part
of legal responsibility. Morality is a category distinct for the vio-
lation of the moral norms and entailing moral sanctions, a phe-
nomenon, therefore, outside the sphere of law. Neither is the term
political responsibility fortunate.
World politics and law constitute two different social phe-
nomena and although the law brings under regulation also rela-
tions of a political nature between the States, there are legally
irrelevant relations of a pure political nature. Political responsibil-
ity has to be kept apart from legal responsibility in the same way
as politics has to be separated from the law. To borrow the words
of Professor Karoly Nagy, "it is inappropriate to apply the epithet
'political' to a legal institution, as this would frustrate attempts to
distinguish political responsibility from legal responsibility."
Neither is the differentiation recognizing material and non-

material (so-called political) types of responsibility a safe criterion
for segregation. Material responsibility mainly is itself twofold. It
may derive from an international delict even from a permitted act,
if contractual obligations bind the State to the assumption of such
a liability. This is the case, e.g., with damage originating from the
non-payment of debt. Upon the other hand, material liability often

manifests itself not not independently and solely, but as accessory
to other forms of responsibility. If, therefore, a line is drawn be-
tween material and non-material responsibility there will infalli-
bly be a third, mixed category of responsibility. Thus, the distinction
between responsibility, of a material and non-material nature may
be maintained, and only the latter should properly be given the
designation "delictual" rather than political.
According to Prof. Nagy, we may distinguish: (1) Responsibility

of an exclusively material nature which may be: a. of delictual
origin and b. originating from permissible activities accompanied
by ultra-hazards (liability of a contractual nature); (2) Delictual
responsibility which may be: a. such as has no material effects;
and b. of a mixed character, i.e., the violation of rights is accom-
panied by damage.
In both jurisprudence and moral law, therefore, three (3) in-
terrogatories must be addressed: (1) Has international law the right
to pass moral judgment on all matters of debt payments?; (2) If in-
ternational law ha6 the right of pass judgment, has it also the right
to use the weapon of sanctions to enforce debt payments?; and (3) If
so, should it use that weapon in all cases or only in some; and (4) If
only in some, on what principles should it distinguish? These are
questions best left to our government policy-makers.
'PEOPLE POWER' AND HUMAN RIGHTS

In the viewpoint of George Segal, "there is a sense in the new
pragmatism of the 1990s, that all that needs to be done is to get
the people out on the streets, and any tyrant can be disposed."
Enthused he:
"Was not President Marcos of the Philippines toppled
like that in 1986? Did not the dictators of Eastern Europe,
including the barbaric Ceausescu clan in Romania, succumb
to the power of unarmed, peaceful demonstrators in 1989?
Yes, but the counter-examples are also powerful? In 1989,
Communist China used its troops to massacre demonstrators
right before the eyes of Western television cameras. And even
some of those countries who UBed people power to clear out
old dictators, soon chose replacements that looked nearly, as
incompetent BB their predecessors." (G. Segal, The World
Affairs Companion, 1991, p. 52).
MARCOS AND THE STRASBOURG DECLARATION ON

THE RIGHT TO LEAVE AND RETURN
This is in response to growing international concern over

impediments placed by many countries on the Tree exercise of the
right to leave and return, which is guaranteed under Art. 13 of the
"Universal Declaration of Human Rights" and Art. 12 of the "Cov-
enant on Civil and Political Rights." While it is submitted that the
then Aquino government is opposed to Marcos returning to the
Philippines mainly by reason of national security, it is felt that a
brief perusal of the Strasbourg Declaration is necessary to find out
whether Marcos can avail himself of this declaration's avowed
purpose.
The declaration's preamble recognizes the fundamental

principle, based on general international law, that "everyone
has the right to enter one's own country which is indispensible
for the employment of all civil, political, economic, social, and
cultural rights." The declaration, in its Art. 6 provides that "no
person shall be deprived from exercising the right to enter his
country" and that "no entry visa may be required to enter one's
country."
So far, all indications point to the fact that Marcos can invoke
the Strasbourg Declaration. But wait, does the declaration admit of
any exceptions? A restriction tantamount to an exception to this rule
may be had if a question of "necessity" arises. According to Art. 4 (c)
of the declaration, "a restriction shall be considered 'necessary' only
if it responds to a pressing public and social need, pursues a legiti-
mate aim, and is proportionate to that aim." Art. 4 (d) provides that
"a restriction based on 'national security' may be invoked only int.
situations where the exercise of the right poses a clear, imminent and
serious danger to the State." (This apparently has been the raison d'etre
for Marcos's non-entry to the Philippines.)
To the same effect, Art. 4(e) provides that "a restriction based
on 'public order' shall be directly related to the specific interest
which is sought to be protected." As underscored, however, by Art.
4(h), "the burden of justifying any such restriction lies with the
State."
[N.B.: The body of Pres. MarcoB Was finally laid to rest in his
native Batac, Ilocos Norte on mid-Sept. 1993. This WBB realized
after the ban on Marcos' return to the Philippines was lifted by
the Fidel V. Ramos government.]
HUMAN RIGHTS AND THE UN
The extent of the power of the United Nations Organization

to intervene in the affairs of its member-States pertaining to
disputes on human rights is awesome.
Today, it is generally recognized that a member-State of the
UN which engages in practices amounting to a consistent pattern
of gross violations of international guaranteed human rights, is
not in compliance with its obligations to "promote universal respect
for, and observance" of these rights and that, consequently, it
violates the UN Charter.
For that matter, the UN has sought to enforce this obligation
with resolutions calling on specific States to stop such violations
and by empowering the UN Commission on Human Rights and its
subsidiary bodies to establish procedures to review allegations or
violations.
Apropos to this is the operation of the machinery created to
address complaints of violations of human rights under the aus-
pices of the United Nations.
The UN Commission on Human Rights ( U N C H R ) — a sub-
sidiary organ of the Economic and Social Council, and established
in 1946 pursuant to Art. 68 of the UN Charter, is charged with the
responsibility of developing proposals to implement the human
rights ideak advanced in Arts. 55 and 56 of the Charter. At its
inception, many member-States of the UN assumed that the
U N C H R would be the sounding board for human rights violations.
Such did not prove to be the case, as the UNCHR invariably for-
warded such complaints to other UN organs. Since the early 1970s,
however, the U N C H R has cautiously expanded its activity to in-
clude the examination of violations and making recommendations.
Nonetheless, the absence of sanction or enforcement powers limits
the effectiveness of the U N C H R in this area.
INTERNATIONAL HUMAN RIGHTS LAW

More than any other branch of international law, international
human rights law has evolved in the institutional context of in-
ternational organizations (these bodies are its principal actors
and lawmakers). For one cannot consequently hope to under-
stand the emerging human rights law without studying its rela-
tion to and interaction with these organizations. For all intents
and purposes, the international law of human rights is defined as

the law which deals with the protection of individuals and groups
against violations by governments of their internationally
guaranteed rights, and with the promotion of these rights. More
1
often than not, this branch of the law is referred to as the in-
ternational protection of human rights or international human rights
law.
A well-established principle of international law provides that
a State may limit its sovereignty by treaty and thus internation-
alize a subject that would otherwise not be regulated by inter-
national law. To cite an example, if one State concludes a treaty
with another State in which they agree to treat their nationals in
a humane manner and to accord them certain human rights, they
have to that extent internationalized that particular subject matter.
But as between these two States, neither can henceforth lawfully
assert that the treatment of its own nationals to which the treaty
applies is a matter that falls exclusively within its domestic ju-
risdictions. (Advisory Opinion on Nationality Decrees Issued in
Tunis and Morocco, P.C.I.J., Ser. B, No. 4 [1923]).
Now one branch of international law that can today be defined

as the human rights component of the law of war is international
humanitarian law. Although modern humanitarian law predates
the development of international human rights law and had some
influence on it (e.g., Art. 3 of the Geneva Convention of 1949),
various provisions of recent protocols mirror the principles un-
derlying modern international human rights instruments.
Worth noting is the fact that the derogation clauses of the

principal international human rights treaties incorporate by refer-
ence the humanitarian law treaties and obligations of the State
parties thereto. (Art. 4 of the International Covenant on Civil and
Political Rights). Modern international law of human rights thus
embraces humanitarian law, attempting to provide at least some
protection in peacetime as in war.
Meanwhile, guerrilla warfare continues to expose the lacunae

in the international humanitarian law of conflicts. It has now
become the common currency of contemporary conflicts.
The U.S. in Vietnam and the Soviet Union in Afghanistan
[have been] examples of how even wealthy, technologically advanced
nations cannot defeat well-organized, highly motivated guerrilla
groups operating in a territory they know well. (Keth Suter, An
International Law of Guerrilla Warfare: The Global Politics of Law-

Making, 1964, p. 1).
To illustrate the point, hereunder quoted is a letter-request
written on Aug. 5, 1862 by General Henry W. Halleck (then com-
mander of the Union forces in the West during the American Civil
War) to international lawyer Francis Lieber — which, in effect,
could easily have been written by an American troop commander
in Vietnam a century later, and in the process, iB indicative of the
lack of progress in drafting ruleB for the regulation of guerrilla
warfare, thus:
"The rebel authorities claim the right to send men, in
the garb of peaceful citizens, to waylay and attack our troops,
to burn bridges and houses, and to destroy property and
persons within our lines. They demand that such persons be
treated as ordinary belligerents, and that when captured they
have extended to them the same rights as other prisoners of
war; they also threaten that if such persons be punished as
marauders and spies, they will retaliate by executing our
prisoners of war in their possession. I particularly request
your view on these questions." (Quoted in Telford Taylor,
"Foreword" in Leon Friedman, ed., The Law of War: A Docu-
mentary History, Vol. 1, 1972, p. xvi).
In fine, international humanitarian law is not effectively

extended to cover guerrilla warfare because there is insufficient
political commitment by the governments, by the NGOs (non-gov-
ernmental organizations), by the UN Secretariat or by the Inter-
national Committee of the Red Cross (ICRC).
INFORMATION AND HUMAN RIGHTS

Until recently, it has been possible to make a clear distinc-
tion between the exercise of human rights with respect to freedom
and expression and means of communication of ideas, and technol-
ogy transfer and commercial transactions. (See Jake V . T Knoppers,
"Transborder Data Flow Issues and Technology Transfer," Journal
of Technology Transfer, Sept. 1, 1984, p. 10).
The information age presents the secenario where the ex-
change of information, research findings, correspondings, books,
articles, data films, voice communications, artistic expression, etc.,
will soon cms national frontiers (be transferred) in the same form
or format, i.e., digitized pulses. Such exchanges of information will

thus be physically undistinguishable from the technology trans-
fers; commercial transactions or transfer economic values, i.e., trade
in products and services, (Ibid., p. 11).
There is no question that. States have a right to protect the
disclosure of security sensitive information to other States and
their agents. Similarly, there is no customary international legal
obligation on States to trade with each other and a concomitant
right is that StateB can refuse to trade with each other. There are
also no legal impediments, in the absence of conventional law to
control the export and import of data especially of the transborder
Data Flor or TBDF to the extent that TBDF is considered a form
of trade-in-services. (Ibid.).
Provisions, however, in domestic law of a number of countries

and in international law that are framed in rather wide terms
exist, and that could be considered to govern the transfer of in-
formation between States. (Ibid.).
For example, Article 19 of the Universal Declaration of Human
Rights states "Everyone has a right to freedom of opinion and
expression; this right includes freedom to hold opinions without
interference and to seek, receive, and import information through
any media and regardless of frontiers."
Thus, the Treaty of Rome, the Canadian Charter of Human
Rights and Liberties (Art. 2) and the constitutions of a number of
countries contain similar provisions.
Although principles of human rights, questions of national
security, and issues underlying commercial transactions are vastly
different if transferred via TBDF, they all take on a similar ap-
pearance or form. As the number of individuals with computers is
growing geometrically, the exercise of human rights will become
inextricably intertwined with TBDF issues and questions of tech-
nology transfer. (Kroppers, supra, p. 11).
TECHNOLOGY TRANSFER
Technologically progress has been made in all spheres of
economic activities in the last decades, thus providing a solid
potential for improving the well-being of all people. However, the
remaining vestiges of alien and colonial domination, foreign oc-
cupation, racial discrimination, apartheid and neo-colonialism in
all its forms continue to be among the greatest obstacles to the full
emancipation and progress of the developing countries and all the
peoples involved. The benefits of technological progress are not
shared equitably by all members of the international community.
( U N General Assembly, 6th Special Session, Doc. A/9556). The
application of science and technology in the interests of the eco-
nomic and social progress of the less developed countries [LDCs]
cannot produce the best results unless it forms part of a coherent
program of development in the economic, industrial, social and
cultural fields." (Decisions of the UN General Assembly, 1967,
Resolution 2318 [XXII].
Luckily for us, high technology serves as a buffer to the

economic malaise much of the world find themselves entrapped in.
Just as microelectronics propelled telecommunications for the last
20 years, the technology of photonics, or lightwave, will spur the
telecommunications revolution of the 1990s. In addition to
photonics, we will also need increasingly sophisticated software,
that technology so vital to tailoring hardware to meet user needs.
(John S. Mayo, T h e Telecommunications Revolution of the 1990s,"
a lecture delivered at the Informationa Communication Institute
of Singapore, Sept. 13, 1990). The goal of the telecommunications
revolution of the 1990s is determined by the needs of the mar-
ketplace. That goal is the ability to have voice, data and images,
in any combination, anywhere, at anytime — with convenience
and economy. The driving forces of the telecommunications revo-
lution are the marketplace need for greatly enhanced information
productivity, and the human desire for telepresence. Information
productivity can be achieved by using information efficiently and
effectively. And telepresence is a multi-media substitute for travel.
These needs embrace such information services as multi-media
teleconferencing, distributed computing, remote interactive edu-
cation programs, high-definition TV and two-way switched video
on demand. The enabling technological forces behind the tel-
ecommunications revolution are photonics, electronics, software,
wireless communications and quality. Photonic processing and
photonic switching — combined with photonic transmission — are
the central forces of the telecommunications revolution of the 1990s.
The other major force is software. And there will also be a software
revolution. Software is currently electronicB-based, having evolved
with today's computers and computer-based systems. All these
"impacts" are geared toward qne goal, the Universal Information
Services.''
High-tech also brings us to the realm of modem armaments.

In recent times, Americans have felt proud of their country's tech-
nological prowess when Patriot missiles started shooting down
deadly Iraqi Scuds. They may not be so pleased to know that, if
these Patriots were built today, defense contractors would likely
rely on computer parts made in Japan.
PROVISIONS IN THE 1967 CONSTTTUTION RE TREATIES

The 1987 Philippine Constitution cites two (2) provisions
touching on treaties:
(1) Concurrence by the Senate:
"No treaty or international agreement shall be valid and
effective unless concurred in by at least TWO-THIRDS of all
the Members of the Senate." [Art. V I I , Sec. 21J.
(2) Power of the Supreme Court to Declare Treaties Un-
constitutional:
"All cases involving the constitutionality of a treaty, in-
ternational or executive agreement, or law shall be heard by
the Supreme Court en banc, and ... shall be decided with the
concurrence of a majority of the Members who actually took
4
part in the deliberations " on the issues in the case and voted
thereon." [Art. V I I I , Sec. 4(2)1
— oOo —
Chapter 12
CONSEQUENCES OF RIGHTS:
PEACEFUL AND FORCIBLE SANCTIONS
PEACEFUL SANCTIONS IN PUBLIC

INTERNATIONAL LAW
Traditionalists list down.the following as the peaceful sanc-
tions in public international law:
y
iiy diplomatic negotiations
(2) tender and exercise of good offices
(3) mediation
(4^ enquiry and conciliation
(6) arbitration
(6) reference to the Security Council of the UN
(7) reference to regional organizations for the peaceful
settlement of disputes
1
(8> reference to the International Court of Justice.
The UN Charter itseir in its Art. 3 provides:
"The parties to any dispute, the continuance or which is
likely to endanger the maintenance of international peace
and security, shall, fir&ljiLalL seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial setile-
ment, resorTto regional agencies or arrangements, or other
peaceful means of their own choice. The Security Council
'See Wilaon and Tucker. International Law. pp. 228-242: Fenwick, Inter-
national Law. pp. 405-440.
529
ehell, when it deems necessary, call upon the parties to settle

their disputes by such means."
'DIPLOMATIC NEGOTIATIONS
Diplomatic negotiations rn.natit.iife foe nmr-PHH hv which States
settle their differences via an exchange of views betw-pn Hipln-
matic agencies. Discussions may be oral or written, brief or pro-
longed'?
/ T E N D E R AND EXERCISE OF GOOD OFFICES

Tender of good offices exists when third party, either alone or
in collaboration with others, offers to help in the settlement of__a
dispute. When the offer is accepted, there is supposed to be an
"exercise of good offices." Example: the tender of good offices by
the Security Council in 1947 to settle the dispute between Indone-
sia and the Netherlands (formerly Holland).
MEDIATION
In mediation, a third party offers to help with a solution,
usually based on compromise (as contradistinguished from good
offices," mediation Offers a solution; "good offices" merely brings
the parties together).
Example. When the UN planned to divide Palestine into two
States (one Jewish-Israel; and the other Arab) after the end of the
British mandate over the country in 1948, Count Folke Bernadotte,
President of the Swedish Red Cross, was appointed Mediator. When
he was assassinated in the Jewish sector of Jerusalem, he was
replaced by an America^, fJr. Ralph Bunche. who was eventually
1
awarded the Nobel Peace Prize for his task in Palestine.
ENQUIRY \
An enquiry is simply*an ascertainment of the pertinent facts
and, issues jnâ dispute. Example: the Security Council appointed
I ' )
l
See Mavromamatis Palestine Concessions Case. P.C.I.J. Pub. Ser A/2, p.
11.
3
See Coyle, The United Nations, pp, 9^-94.
CONSEQUENCES OF RIGHTS: 531
a committee to determine the exact facts connected with the Corfu

Channel dispute in 1947.
CONCILIATION AND ARBITRATION

Conciliation is the reference of the dispute to a commission
or international body, whoBe decision, however, ia N O T BINDING
on the parties; when the decision is final and conclusive on the.
parties, the process ig rpfprrpH fe as Arbitration*
While there is admittedly no international court for litigation
such as commercial disputes governed by private law, arbitration
proceedings are not necessarily to be preferred to legal action before
the state courts (despite all their advantages).
In arbitration, the following considerations are important.
Firstly, in many cases, the general conditions of the trade
concerned automatically provide for arbitration (e.g., the London
Corn Trade Association and other similar organizations).
Secondly, if the dispute relates to a standard export trans-
action, where the sums in dispute are not very substantial and
there is no need for confidentiality of the proceedings, court pro-
ceedings will not necessarily be more lengthy or costly than ar-
bitration proceedings. But it is essential to check whether a
judgment rendered by a foreign court will be recognized and en-
forced in the plaintiffs home country or in any other third country
in which the defendant haa assets that can be seized.
AjfeuMfttsavnonetheless, is preferable to_court proceedings in

complicated and technical matters jyhere it is essential to have a
neutral jurisdiction with arbitrators who are experienced not only
in the specific field of business giving rise to the dispute, but who
also have a thorough knowledge of international trade practices in
general and who may have language skills. Moreover, international
conventions generally confer greater international effectiveness
upon arbitral awards than upon decisions given by national courts
oflaw. But in the matter of settling loan disputes, lenders strongly
dislike arbitration. The reason is clear enough. Lenders want to be
able to get their money back as soon as possible and for them,
arbitration offers the risk of substantial delay if the borrower wants
'See Kcl>en. Principle* of International Law, pp. 360-377.

to cause delay. Most lawyers for lenders would not want to take
that risk.
Regrettably, many nations adhere to the rule that an agree-
ment to arbitrate future disputes is not binding and irrevocable.
There are certain problems with regard to enforcement which are
common both to arbitration and court judgments. For instance,
defects in the foreign judgment such as extrinsic fraud or lack of
jurisdiction over the person will preclude enforcement in foreign
courts, as will lack of due notice and failure to provide an oppor-
tunity to be heard. Judgments which are not final will be denied
enforcement. In addition, those judgments which do not accord
with the public policy of the enforcing State or which are deemed
contrary to "natural justice" will be denied enforcement.
THE PHILIPPINE CASE AGAINST U.S. WESTINGHOUSE

RE BRIBERY CASE INVOLVING THE BATAAN
NUCLEAR POWER PLANT
In Mid-May 1993, the Philippine government lost a case
against the U.S. firm Westinghouse Corp. for alleged bribery re-
garding the Bataan Nuclear Power Plant^The issue was whether
Westinghouse bribed the late President Mareos to get the contract
for the construction of the nuclear plant. Thg-jurv. composed of
seven men and five women, apparently did not believe the Phil-
ippine government's claims.
The Philippines has also sued Westinghouse and Burns &

Roe before the International Arbitration Court in Geneva for its
alleged non-compliance with the contract and fraud because it
included the $24 million it allegedly paid as bribe to Marcos in the
5
cost of the contract.
Examples:
(1) A conciliation committee was set up by the UN in 1946
to solve the Palestine question.
(2) Arbitration was effected by the Italian monarch in 1931
to settle the dispute between Mexico and France regarding an
island.
''The Philippine Star, "Panel Recommends Filing of Motion Tor Relnai nf

Rape Versus Wesunghouee," June 1. 1993, p. 4.
PEACEFUL A N D FORCIBLE SANCTIONS
( N O T E : The arbitral tribunal may consist of one person or

may be a collegiate body. Sometimes, by agreement, the arbitrator
may be the head of a third State, its Minister (Secretary) of For-
eign Affairs, or its Chief Justice. The agreement to submit the
matter to arbitration is called a compromis d'arbitrage or a treaty
5
of arbitration. ')
"REFERENCE TO THE SECURITY COUNCIL OF THE UN
When NO danger to international peace is foreseen, the Se-

curity Council may step in only if A L L T H E P A R T I E S to the
6
dispute request its intervention. When there is D A N G E R to in-
ternational peace, the Security Council intervenes:
7
fl) on its own motion;
8
(2) on motion of the General Assembly;
9
(3) on motion of the UN Secretary-General;
10
(4) on motion by a UN Member; or
1
on motion by a Non-Member of the U N .
( N O T E : In case the Security Council discovers a threat to
international peace, it shall make the proper recommendations on
12
the dispute. If the recommendations are not heeded, the Council
may take "enforcement actions" under Art. 41 of the Charter).
[NOTE: The Security Council actually sets UN policy, al-

though many other legislative bodies ol the United Nations Or-
ganizations are involved. By-and-large, however, the UN (consisting
of 184 member-States, as of January 1, 1994), decide on the shape
and direction of the UN as an institution. Over the last five dec-
ades, governments have created a system of UN agencies to deal
with the world's most pressing and complicated problems, such as
nuclear weapons, disease, malnutrition, environmental degredation
and the plight of refugees. The whole UN system employs over
'•'See Kelsen, op. cit.. p. 378.

'Art. 52, UN Charter.
"Art 1 1, UN Charter.
'"Art. 35, No. 1, UN Charter.
"Arl. 35, No. 2. UN Charter.
"Art. 39. UN Charter.
50,000 people who work in New York and Geneva, but also in
difficult places such as Angola, Somalia, Cambodia, Afghanistan,
the Sudan, and the former Yugoslavia. Over the last year and a
half alone, 26 UN staff membere have lost their lives while serving
the U N , and some 90 staff members are being illegally detained
against their wills by governments and other authorities. (Luis V.
Torres, "UN Welcomes Reform Call," Manila Chronicle, Oct. 7, 1993,
p. 5). In 1967, there were 9,600 UN peacekeepers? deployed around
the globe; today, there are about 90,000 in 17 parts of the world.
{The Business Star, "Clinton's U N Speech Will Seek More Caution
in Peacekeeping," Sept. 28, 1993, p. 9). By mid-October of 1993,
UN peacekeeping has expanded to include more than 1,500 troops,
police and civilians to retrain Haiti's army and police; 500 military
observers to monitor a ceasfire in Liberia; and a force that coud
eventually include 2,500 troops, observers and civilians, to moni-
tor an accord in the central African nation of Rwanda. This is, in
addition, to major operations of more than 2,500 each in Somalia
and the former Yugoslavia, although a similar-size force in
Cambodia is now being withdrawn after completing its mission.
(Business Star, "U.S. Pays U N $533M But Still Owes More," Oct.
8, 1993, p. 24). In a speech delivered during the first week of Oct.
1993 to the UN General Assembly, U.S. President Bill Clinton
pledged to work with Congress to ensure prompt payment of
peacekeeping bills. But he said he was also committed to get the
U.S. share reduced "to reflect the rise of other nations that now
can bear more of the financial burden [e.g., Japan and Germany).
The United States has paid the UN more than half a billion dol-
lars in budget arrears and peacekeeping costs but still owes an-
other $472 million. The cash-starved world body is still owed a
total of more than $1.7 billion, including $536 million in regular
dues and $1.2 billion for its expanded peacekeeping operatives.
The U.S. payments, totaling $533 million, represented $233 mil-
lion in regular dues and $300 million for the UN's ever-growing
field operations. The outstanding U.S. debt consist of $284 million
in regular dues and $188 million for peacekeeping. Washington
needs 25% of the annual UN budget of more than $1 billion but
— as one of the five permanent members of the Security Council
— is assessed just over 30% of peacekeeping costs. (Ibid.).}
-REFERENCE TO REGIONAL ORGANIZATIONS

Under Art. 52 of the UN Charter, regional arrangements or
agencies may be established to maintain international peace (thru
PEACEFUL A N D FORCLBLE SANCTIONS
regional action) and to peacefully settle local disputes before refer-

ring them to the Security Council. Their activities ought to be
13
reported to the Council. Parenthetically, it should be noted that
the existence of these agencies will N O T prevent the Security
14
Council from itself investigating and settling these disputes.
Example of such an agency is the OAS — the Organization of
American States,, established principally by the Bogota Charter
(April 30, 1946). Another example is the O A U — the Organization
of African Unity — with the Charter of Addis Ababba.
SETTLEMENT BY THE INTERNATIONAL

COURT OF JUSTICE
The International Court of Justice, tentatively proposed in
Dumbarton Oaks, was created in San Francisco to replace the
Permanent Court of International Justice (which had functioned
previously together with the League of Nations). It is governed by
the "Statute of the International Court. nf.I11at.ir*>" y?hich has been"
incorporated as an integral part of the ITN Charter. Under Art. I
of the Statute, "The International Court of Justice established by
the United Nations as the principal judicial organ of the United
Nations shall be constituted and shall function in accordance with
the provisions of the present Statute."
Composition
The Court consists of 15 members, no two of whom may be
nationals of the same State. A person who for purposes of mem-
bership in the Court could be regarded as a national of more than
one State shall be deemed a national of the one which he ordinarily
15
exercises civil and political rights. If the Court includes a judge
of the nationality of one ot th? parties, any other party may choose
a person to sit as judge. If the Court does not include a judge of
the nationality of the parties, each party may select a person to sit
16
as judge. These extra-judges are known as "ad hoc judges."
The Court sits at The Hague, the Netherlands. Its 15-judge
bench was established to hear disputes among states, which must

"Art. 52, No. 4, UN Charter.
"Art. 3, Statute.
"See Art. 31. Statute.
agree to accept its verdicts. Its judges, charged with administering

justice under international lew, deal with cases ranging from dis-
putes over territory to those concerning rights of passage.
Term and Tenure of Office

The members of the Court shall be elected for nineyears_and
may be reelected; provided, however, that of the judgeselected at
the first election, the term of five judges shall expire at the end of
three years, and the term of five more judges shall expire at the
end of six years. The members of the Court shall continue to
discharge their duties until their places have been filled. Though
replaced, they shall finish any cases which they may have begun.
In case of the resignation of a member of the Court, the resignation
shall be addressed to the President of the Court (elected together
with the Vice-President by the Court itself for three years subject
to re-election) for transmission to the Secretary-General of the
7
U N . This last notification makes the place vacant.' A member of
the Court elected to replace a member whose term of office has
N O T expired shall hold office for the remainder of his predecessor's
18
term. No member of the Court may be dismissed unless, in the
U N A N I M O U S opinion of the other members, he has ceased to
fulfill the required conditions. Formal notification thereof shall be
made to the UN Secretary-General by the Court Registrar (ap-
pointed by the Court itself). This notification makes the place
19
vacant.
Following are the members of the Court and the year in

which their terms expire:
President: Sir Robert Yewdall Jennings, United Kingdom
(1994 as president; 2000 term)
Vice President: Shigeru Oda, Japan (1994)
Taslim Olawale Elias, Nigeria (1994)
Jens Evensen, Norway (1994)
Manfred Lachs, Poland (1994)
Roberto Ago, Italy (1997)
Mohammed Shahabuddeen, Guyana (1997)
" A r t . 13, Statute.

'"Art. 15, Statute.
" A r t . 18, Statute.
Stephen Schwebel, United States (1997)

Mohammed Bedjaoui, Algeria (1997)
Nikolai Tarassov, U.S.S.R (now Russia) (1997)
Gilbert Guillaume, Prance (2000)
Andres Aguilar, Venezuela (2000)
Raymond Ranjeva, Madagascar (2000)
Christopher Gregory Weeramantry, Sri Lanka (2000)
HouTCh osen
The members of the Court Bhall be elected by the General
Assembly and by the Security Council voting separately and inde-
pendently." They shall be chosen from candidates nominated by
21
national groups. Those candidates who obtain an absolute ma-
jority of votes in the General Assembly and in the Security Council
shall be considered as elected. For the purpose of voting for the
judges, no distinction is made between the permanent and non-
members of the Security Council. In the event of more than one
national of the same State obtaining an absolute majority of the.
votes both of the General Assembly and of the Security Council,
22
the eldest of these only shall be considered as elected.
Qualifications
The judges must possess high moral character, and must
"possess the qualifications required in their respective countries
for appointment to the highest judicial offices'' OR be "jurisconsults
23
of recognized competence in international law."
(NOTE: Art. 9 of the Statute counsels the UN that "at every
election, the electors shall bear in mind not only that the persons
to be elected should individually possess the qualifications required,
but also that in the body as a whole the re presentation of the main forms of
civilization and of the principal legal systems of the world should
be assured.")
But as an aside, manuevers in the World Court are regarded
as legitimate. Shabtai Rosenne in his book, The World Court, not
"'Arts. 4 and 8, Statute.

" A r t 4, Statute.
"Art. 10, Statute.
" A r t . 2. Statute.
only rationalizes but also justifies them. He says in part: "It is

difficult to see why such bargains shoud be deprecated (except out
of an exaggerated regard for legal purism) because both the Gen-
eral Assembly and the Security Council are purely political bodies
and it is not expected of them to exclude political considerations
when they come to perform the very important function of electing
the judges. These diplomatic contacts are also valuable in main-
taining the desired professional standards of the Court. Thru them,
influential governments are able to discreetly indicate their view
that a given candidate is or is not qualified for the duties and
there is reason to believe that this, too, is a factor which influences
the final outcome of the elections." (Rosalinda L. OroBa, "World
Court Manuevering Are Regarded Legitimate," Philippine Star, Oct.
19, 1993, p. 7).
Jurisdiction Over States Is Obtained by the Court

In contentious litigations and disputes, the Court may obtain
jurisdiction in either of two (2) ways:
(1) firstly, by "prior_jauififint" given by the States in
signing the so-called 'ffiKonal clausef (this is done by making
a declaration that "they recognize as compulsory ipso facto and
without special agreement, in relation to any other State
accepting the same obligation, the jurisdiction of the Court";
the "declaration may be made unconditionally or on condition
of reciprocity on the part of several or certain States, or for
a certain time"; the declaration shall then "be deposited with
the Secretary-General of the United Nations, who shall
transmit copies thereof to the parties to the Statute and to
2
the Registrar of the Court;" *
(2) secondly, by "simultaneous consent." Art. 36, No. 1

of the Statute says: "The jurisdiction of the Court comprises
all cases which the parties refer to it and all matters specially
provided for in the Charter of the United Nations or in trea-
ties and conventions in force."
[•'jurisdiction of the Court

The Court has jurisdiction in the following cases:
" A r t . 36, N M . 2 . 3 . 4 , Statute.

CONSEQUENCES OP RIGHTS: 539
(1) the giving of advisory opinions on any legal question at

the request of whatever body may be authorized by or in accordance
M
with the Charter of the UN to make such a request.
(2) contentious cases (legal disputes)

(a) if the consent was made by signing the optional
clause:
1) the interpretation of any treaty;
2) any question of international law;
3) the existence of any fact which, if established,
Would constitute a breach of an international obligation;
4) the nature or extent of reparation to be made
26
for the breach of an international obligation.
(b) in the case of "simultaneous consent": "all cases
which the parties refer to it and all matters specially pro-
vided for in the Charter of the United Nations or in treaties
27
and conventions in force."'
SForum Prorogatum'
The doctrine of forum prorogatum (or "prorogated jurisdic-
tion") is a principle relied upon in some cases by the International
Court of Justice (ICJ), whereby the Court exercises jurisdiction
over a case when consent to submit to its jurisdiction is given after
the initiation of proceedings in an implied or informal way or by
a succession of acts. (Bledsoe & Boczek, The International Law
Dictionary, 1987 ed., pp. 289-290).
This doctrine was relied upon by the ICJ in the Corfu
Channel case (Preliminary Objection, 1948), where it pointed out
that although Albania could have objected to the Court's jurisdiction
by virtue of the unilateral initiation of proceedings by the United
Kingdom, it was precluded from objecting to the jurisdiction after
having accepted it in an official letter, following the initiation of
the proceedings.
" A r t . 65, No. 1, Statute.

" A r t . 36, N o . 2. Statute
37
A r t . 36. No. 1. Statute.
Nevertheless, assent to jurisdiction by subsequent conduct

can scarcely be inferred when the respondent State consistently
denies the Court's jurisdiction. For unless there is a real and not
merely apparent consent, the Court will not accept jurisdiction
and the case must be removed from its list — something that has
happened at least eight times in the ICJ's history. (Bledsoe &
Boczek, supra, p. 290).
The ICJ has its seat at the Hague, Netherlands (Holland) in
the Peace Palace funded by Andrew Carnegie before World War I,
but it may sit elsewhere whenever it considers it desirable.
Generally, decisions are made by the full Court, with a
quorum of nine being sufficient to constitute the Court. A possibil-
ity exists, however, that the parties may ask that their dispute be
decided not by the full Court but by a chamber composed or
certain judges elected by ballot by the Court and applying a sim-
plified procedure.
Accordingly, there are three (3) kinds of chambers, to wit:
1. the Chamber of Summary Procedure, comprising five
judges and constituted annually;
2. any chamber of three judges that the Court may form to
deal with a given category of cases; and
3. any chamber that the Court may form to deal with a
particular case, after consulting the parties regarding the number
and names of its members.
The case of Delimitation of the Maritime Boundary in the Gulf
of Marine Area (Canada/United States of America, 1984) was the
first time that use was made of the possibility of referring a dis-
pute to a special chamber.
Although the ICJ represents the most progressive institution
in securing the rule of law in the settlement of international dis-
putes, its value and achievements remain a matter of controversy.
Some 60 cases were filed before the Court in the year 1946-1985.
The Court handed down 18 judgments on the merits, ten on pre-
liminary objections, and delivered seventeen advisory opinions. Still,
given the condition of the international society within which it
operates, the ICJ must be considered mankind's highest effort to
date in upholding the rule of international law in world affairs.
(Bledsoe & Boczek, The International Law Dictionary, 1987 ed.,
pp. 299-300).
ICJ and New Challenges
One of the more viable international institutions undoubt-

edly in toda/s world is the International Court of Justice (ICJ).
This status has been buttressed by the fact that striking new
areas of law have been introduced. Thus:
1. The case of Aerial Incident of July 31, 1988 [Iran v.
United States] (Application filed on May 17, 1989). This involves
the international responsibility of the United States for the shoot-
ing down of Iran Air Flight 655 by the USS Vincennes in the
Persian Gulf during the Iran-Iraq War, when the U.S. was taking
an active containment rule in patrolling gulf waters. The legal
texts at issue are the Chicago and Montreal Conventions and an
undenounced Treaty of Friendship, Commerce and Navigation
between the U.S. and Iran. The substance at issue is Article 51 of
the UN Charter, the customary international law of self-defense,
and the rights of third States to defend their nationals in inter-
national waters during hostilities.
Found herein is the first superpower as the unwilling de-

fendant. The facts in this case — the conflict in the Persian Gulf
in 1988, the use of force, the right of self-defense, the exercise of
case, the rights of non-combatants in relation to an armed con-
flicts, and the laws of armed conflict applicable to civil aviation —
are of importance and relevance to matters currently on the world
stage.
Parenthetically, the law and logic of the UN Charter and

customary international law provide refinement of appreciating
the rules on the use of force and self-defense under Article 2,
paragraph 4, and Article 51 of the Charter. One can only hope that
the Court will do justice by a reasoned and careful judgment in
this case and that, if that judgment is in fact unfavorable to the
United States, the U.S. Government will continue its new and
positive attitude and will not then start bashing the Court. It is
to be hoped that the U.S. would not then bash the Court indirectly
by vetoing any enforcement action in the Security Council, an
action which, although technically legal, is obviously of dubious
propriety. [See, for example, the reasoning of the Permanent Court
in Interpretation of Article 3, Paragraph 2, or the Treaty of
Lausanne (Frontier Between Iraq and Turkey), 1925 PCIJ (ser B.)
No. 12, at 32 (Advisory Opinion of Nov. 21), concerning the prin-
ciple of nemo judex in re sua.]
2. The case of Maritime Delimitation in the Area Between

Greenland and Jan Mayen [Denmark v, Norway] (Application filed
on Aug. 16, 1988). This case for the first time places squarely before
the Court the issue of the relative "entitlements" of landmasees to
maritime spaces under the contemporary international law of the
sea, when both are island dependencies of relatively distant
mainlands and there is an acknowledged disparity in coastal lengths
(Greenland and Jan Mayen Island).
3. The case of Certain Phosphate Lands in Nauru [Nauru
v. Australia] (Application filed on May 19, 1989). The case raises
interesting questions of international accountability for operations
and conduct in a trust territory. Nauru is also a "first" as regards
redreas sought of a former trusteeship authority for its adminis-
tration of the economic assets of a trust territory. The elements
that pertained to international fiduciary accountability may at last
be applied, in a new and wholly unexpected context.
4. The case of East Timor [Portugal v. Australia) (Appli-

cation filed on February 22, 1991). This raiseB novel, but funda-
mental, issues of the representation and recognition of States in
the context of occupation, and the duty of third States in relation
to conquering power. The principal question raised appears to be
that Australia should not have agreed to a delimitation w i t h In-
donesia with respect to East Timor, since the latter was taken by
force and should not be bound by important maritime arrangements
entered into with its conqueror.
The case bears a curious resemblance to the facts at i s s u e in

the arbitral award involved in Arbitral Awards of July 31, 1989,
i.e., the elemental fairness of agreements reached by colonial powers
and inherited by their successor independent States in the context,
inter alia, of the 1982 Convention on the Law of the Sea.
In the Arbitral Award case, the principal question presented
to the Court concerns the respect due an arbitral award that may
have failed to answer all the questions put by the parties to the
arbitration. With the current difficult experience of the Interna-
tional Centre for Settlement of Investment Disputes relating to
appeals of arbitral decisions, thiB matter bears considerable im-
portance beyond the relatively narrow confines of the arbitration
in question.
5. The case of Territorial Dispute [Libya [Chad] (1990 ICJ
Reg. 149 [Order of October 26]). This iB a classic post-colonial
dispute about territorial boundaries. Yet, the case also represents

a further refinement of the rule of uti possidetis juris — the vexing
and often misunderstood doctrine of State succession to colonial
territorial boundaries — which was presented in the arbitration
underlying the Arbitral Award case, and with which the Chamber
will have to deal in extenso.
6. The case brought by Qatar against Bahrain concerning
sovereignty over islands, shoals, and maritime areas. (Application
fded on July 8, 1991. [See ICJ Communique No. 91/21 (July 8,
1991). This case brought by Qatar against Bahrain represents
fascinating questions of territorial claims, including a maritime
boundary purportedly established by the British Government (un-
der a special treaty friendship).
In addition, Qatar v. Bahrain appears to involve the scope of
the Court's ability to effect a delimitation of maritime areas with-
out specific direction to that effect on the parties.
7. The case of Maritime Boundary [Guinea-Bissau v. Sen-
egal} (Application filed on March 12, 1991). This may be the first
delimitation case presented to the Court that concerns the exclu-
sive economic zone alone, independent of the continental shelf or
territorial sea.
8. The case of the Passage through the Great Belt [Finland
v. Denmark] (Application fded on May 17, 1991). Herein, Finland
has objected to the proposed construction by Denmark of a bridge
that would not permit Finnish-built offshore rigs to be transported
thru the straits from the Baltic to the North Sea. Obviously, brand-
new threshhold issues of international law are raised here: not the
least of which is the status of straits and littoral states under the
1982 Law of the Sea Convention, the reasonableness of impending
structures, the duties of States regarding their own territorial
waters, the nature and identity of entities, rigs, and platforms
protected under international law, and the propriety of a restrain-
ing order in such a case.
The Court is, therefore, now continuing full speed ahead on

its productive and convincing path toward mastery of the law of
the sea. It has already produced, from 1969 to the present day, the
only single body of jurisprudence in the area, it will continue to do
so and thus redouble and affirm its position. The International
Court of Justice, dominant in the field, will clearly remain so.
Observes Keith Highet, in his editorial commentary at the

American Journal of International Law (Vol. 85, 1991 issue): "All
this activity is inspite of the impending arrival of the International
Tribunal for the Law of the Sea (the 'Hamburg Court*), referred to
in Article 287 ( l X a ) of the 1982 Convention and to be established
under Annex VI to the Convention, but which obviously must await
the entry into effect of the Convention, which could be next year,
or the year after, or five years later, or perhaps never. Yet if the
Hamburg Court comes into being, what then? Does the extraor-
dinary broad caseload now confronting the International Court of
Justice not have strong implications for the other tribunal? Ob-
viously, the Law of the Sea Tribunal will hardly be competing on
an even playing field with its older sister, which will have decided
a dozen cases over twenty-five years and have solidified its broad
and general authority in the interpretation and application of the
international law of the sea."
The conclusions that can be drawn is the observation that the

Court is effectively operating in far more widely spread areas of
the world than ever before. For the real work of the Court over the
next decade will be the reconciliation of the interests of developing
countries with those of the developed countries, and its real con-
stituents a wide range of middle-level powers seeking to resolve or
defuse critically important legal problems, usually — although, of
course, not always — concerning a boundary.
Highet poses the question, thus: "Will we learn by the ex-

perience — guaranteed to take us through 1995 — that this
constituency of States is perhaps the one that will most frequently
use, and be directed by the Court?" Stated differently, "Is this all
that bad a result?"
Answers he: "Perhaps the correct one for the next decade (is
that) [tjhe greater power could not be expected to abide by deci-
sions of the Court in every instance; it is the lesser powers that by
definition require the additional strength and protection of the
Court, and it is by their participation and willingness to use the
Court that new ground is broken, and past prejudices and fears
set aside and allayed. The Court, like a phoenix, appears to have
emerged from the ashes. It has become a hot court — perhaps
even a 'hot bench.' It is positioned, for the first time in its collec-
tive seventy-year history, to become the great international judi-
cial institution that its friends and supporters always knew that
it could be."
Advisory Opinion of the International

Court of Justice on its Right to Interpret
the UN Charter 1950 I.C.J. 4
ISSUE: Can the World Court interpret, upon request of
a General Assembly resolution, provisions of the U.N. Charter?
HELD: Yes. According to Art. 96 (UN Charter) and Art.
65 (Statute of the International Court of Justice), the World
Court may give an Opinion on any legal question, and there
is no provision which prohibits it from exercising, in regard
to articles of the UN Charter (by itself a multilateral treaty),
an interpretative function falling within the normal exercise
of its judicial powers. (See also I.C.J. Reports, 1947-1948, p.
61). [Be it noted that in the same opinion, on the contention
that the Court could not interpret the specific question asked
(namely, whether in the absence of a favorable recommenda-
tion by the Security Council, the General Assembly can still
admit a candidate State to UN membership), because of its
political- nature, the Court said that the question as framed
did not possess a political character, rather, it involved an
essentially judicial task — interpretation of a treaty proviso.
Incidentally, on the main question, the answer was in the
negative in view of the explicit provisions of the Charter. (See
Chapter on the U.N.).]
ffihat the Court Applies in Deciding Cases

The Court applies:
(1) Direct Sources of International Law —
(a) international conventions, whether general or par-
ticular, establishing rules expressly recognized by the con-
testing States;
(b) international customs, as evidence of a general
practice accepted as law;
(c) the general principles of law recognized by civilized
16
nations (e.g., estoppel, prescription, res judicata).
(2) Indirect Sources of International Law —
" A r t . 38. No. 1. a. b, c. Statute.

(a) judicial decisions (of international tribunals);

(b) teachings of the moat highly qualified publicists of
n
the various nations.
(3) Equitable principles (ex aequo et bono), "if the parties
30
agree thereto."
low Decisions of the Court are Enforced

The UN Charter says:
(1) Each member of the United Nations undertakes to com-
ply with the decisions of the International Court of Justice in any
31
case to which it is a party.
(2) If any party to a case fails to perform the obligations
incumbent upon it under a judgment rendered by the Court, the
other party may have recourse to the Security Council, which may,
if it deems necessary, make recommendations or decide upon
32
measures to be taken to give effect to the judgment.
Some Decisions of the Court

Some of the decisions of the International Court of Justice
have been detailed elsewhere in this treatise. A few more land-
mark ones are discussed hereunder:
The Ambatielos Case

Decisions of July 1, 1962 and
May 19, 1953
FACTS: A Greek shipowner named Ambatielos entered
into a contract with the English Government for the purchase
of certain ships. Because of alleged failure on the part of
England to carry out certain terms of the contract, and because
of alleged English court decisions (against him) which violated
international law, Ambatielos claimed he had been damaged.
The Greek Government sued England and claimed that the
"See Art. 36. NOB. 1, d. Statute.

" A r t . 36, No. 2. Statute.
' ' A r t . 94, No. 1, UN Charter.
M
A r t . 94, No. 2, UN Charter.
latter was under a duty to submit the matter to arbitration

in accordance with the 1886 and the 1926 treaties between
the two countries. England upon the other hand, demurred to
the jurisdiction of the International Court.
HELD:
(1) The International Court had jurisdiction to decide
whether or not England was under a duty to submit the
dispute to arbitration, but had no jurisdiction to deal with
33
the merits of the Ambatielos claim.
(2) In a further judgment, the Court decided that
England has a duty to submit the matter to arbitration in
34
accordance with the treaties of 1886 and 1926.
THE RIGHTS OF U.S. NATIONALS IN THE

FRENCH MOROCCO CASE
FACTS: Under the provisions of certain treaties, the
United States had a most-favored nation clause in connection
with its affairs in French Morocco (Treaty between the United
States and Morocco of 1836; General Act of AlgecirasoF 1906).
Among other things, the treaties provided for consular ju-
risdiction by the United States in French Morocco. By a decree
of December 30, 1948, the French authorities in the Moroc-
can Protectorate imposed a system of license control in the
matter of imports of a number of products indispensable to
the Moroccan economy. The United States alleged that the
decree affected its rights under the above mentioned treaties
with Morocco, and alleged further that no Moroccan law or
reaction could be applied to U.S. nationals in Morocco without
its previous consent.
HELD:
(1) French Morocco could impose such a decree with-
out the prior consent of the U.S. Government A N D this is so
even if U.S. nationals therein would be adversely affected.
HOWEVER, in matters within their jurisdiction, the consu-
lar courts of the United States were entitled to refuse to U.S.
"Judgment of July I . 1S62.

"Judgment or May 10, 1963.
nationals the application of the decree (precisely because or

the lack of prior consent).
(2) The jurisdiction by the U.S. consular courts in
French Morocco extended to:
(a) civil and criminal suits between U.S. citizens
(or persons under U.S. protection);
(b) cases brought against such U.S. citizens (or
protected persons) insofar as this was allowed by the
General Act of Algeciras.
(3) U.S. nationals in French Morocco were not
entitled to immunity from taxation.
(NOTE: On October 1, 1952, French Morocco removed
the above-disputed licensing controls on imports).
The Nottebohn Case

Judgments of November 18, 1953 and April 6, 1955
(I.C.J. Reports, 1955, p. 4)
FACTS: Mr. Nottebohn, a German national, settled in

Guatemala for 34 years, and became successful in business.
In October, 1939, a month after the opening of World War I I ,
he went to Europe, and in the State of Liechtenstein, he
applied for, and was granted, naturalization. He then returned
to Guatemala. He retained, however, his family and business
connections in Germany. The object of the change of nation-
ality was for him to acquire the status of a neutral national
in time of war. As a result of war measures in 1943, Guatemala
seized his properties on the theory of the Guatemalan au-
thorities that he really was still a German, despise the
naturalization. Nottebohn had to leave the country. In his
behalf, Liechtenstein sued Guatemala before the International
Court of justice on the ground that the defendant State had
treated its naturalized citizen in a manner contrary to in-
ternational law. The plaintiff State asked for restitution
compensation. Guatemala objected to the jurisdiction of the
court, and also claimed that it could not recognize the natu-
ralization because there was no genuine connection between
Nottebohn and the State of Liechtenstein.
HELD:
(1) On the question of jurisdiction:
CONSEQUENCES OF RIGHTS; 549
The Court has jurisdiction (Judgment of Nov. 18, 1953).

(2) On the intrinsic merits of the claim:
Liechtenstein cannot put up an international claim on
behalf of Nottebohn. It is the bond of nationality between the
State and an individual that can enable a State to sue on
behalf of the latter: that bond does not exist here because of
the lack of genuine connection between Liechtenstein and the
naturalized citizen Nottebohn, the latter having sought a
change of citizenship only in order to possess the status of a
neutral national. At heart, he remained a German, since he
retained his family and business connections in Germany.
The change of nationality was, therefore, not entitled to rec-
ognition by Guatemala.
The S.S. "Lotus"

(France v. Turkey)
1927, Permanent Court of International Justice
The case was brought before the court by agreement
between France and Turkey. It involved a collision on the
high seas between the French steamer Lotus and the Turkish
collier Boz-Kourt. The Turkish vessel sank, and several lives
were lost as a result. The Lotus proceeded to Constantinople,
where Lieutenant Demons, a Frenchman, officer of the watch
on the Lotus at the time of the collision, and the Turkish
captain Hassan Bey, were tried and convicted of manslaughter.
The court had to decide first whether Turkey acted in conflict
with the principles of international law by instituting criminal
proceedings against Demons, and second, in case of an af-
firmative answer, what pecuniary reparation was due to
Demons.
The decision was that Turkey did not act in conflict with
the principles of international law so that, consequently, no
reparation was due to Demons.
Turkey acted on the basis of its criminal code which
entitled the government to punish "any foreigner
who...commits an offense abroad to the prejudice of Turkey or
of a Turkish subject...provided he is arrested in Turkey." The
French government argued that (1) for the Turkish courts to
have jurisdiction, they should point to some title giving them
jurisdiction according to international law; (2) international
law does not allow a State to take proceedings with regard to

offenses committed by foreigners abroad simply because the
victim had the State's nationality; because the offense was
committed on board the French veBBel, it was committed
"abroad" from the Turkish viewpoint; (3) international law
recognizes the exclusive jurisdiction of the flag State for eve-
rything occurring on board a ship; (4) the previously men-
tioned principle is especially applicable in collision cases. On
the first point, the court agreed with Turkey that the ques-
tion was not which principle of international law entitle
Turkey to act. It was which principle Turkey violated by
acting. International law, the court argued, rested on the free
will of States. Restrictions upon their independence, there-
fore, may not be presumed. While a most important restriction
is that a State may not exercise its power on the territory of
another, it does not follow that a State is prohibited from
exercising its jurisdiction in its own territory in respect to
any case that relates to acts that have taken place abroad.
International law does not prohibit States from extending the
application of their laws and the jurisdiction of their courts
to persons, property, and acts outside their territory. All that
could be required of Turkey was that it should not overstep
the limits placed upon its jurisdiction by international law.
This would be the case if there were a special rule of inter-
national law prohibiting Turkey from extending its criminal
jurisdiction under the conditions of the present case. This
situation the court proceeded to examine by answering each
of the French government's remaining arguments. On the
second point, the court found it to be general practice of States
and an accepted rule of international law that offenses are to
be considered as commited in a State's territory if one of the
constituent elements of the offense, and especially its effects,
have taken place in the territory of the State. As the effects
have taken place on the Turkish vessel, the French argument
does not hold. The court rejected France's third point by ar-
guing that a ship on the high seas is "assimilated" to the
territory of the State whose flag it flies. The ship is, there-
fore, placed in the same position as national territory and the
flag State has no special or greater jurisdiction than it has
over its territory. What occurs on board a vessel must be
regarded as it it had occurred on the territory of the flag
State. If an offense has been committed on one ship whose
effects have taken place on another ship, the flag State of
this second ship may consider the offense to have been com-
mitted on its territory, and prosecute the delinquent. France's
fourth point also was rejected by the court. It did not find any
rule in international law that in collision cases criminal pro-
ceedings can take place only in the State whose flag is flown.
The court found, on the contrary, that France and Turkey
had concurrent jurisdiction because the offense, inseparable
in its component elements, took place within both jurisdictions.
(Under the Convention on the High Seas, 1958, Article 11,
the principle of jurisdiction in cases of collision maintained
by the court has been rejected.)
Land, Island Maritime Frontier Dispute

(El Salvador/Honduras), Application to Intervene
1990 ICJ Rep. 82, 29 DLM 1345 (1990)
International Court of Justice, September 13, 1990
In this case before a Chamber of the International Court

of Justice, El Salvador and Honduras, by a Special Agree-
ment dated May 24, 1986, requested that the Chamber delimit
the land frontier and determine the legal status of certain
islands and waters in the general area of the Gulf of Fonseca.
The gulf, located on the Pacific coast of Central America, is
bordered by El Salvador, Honduras and Nicaragua. For that
matter, Nicaragua filed an application for permission to in-
tervene in the case on November 17, 1989, pursuant to Arti-
cle 62 of the Statute of the Court, which permits a State to
request intervention if the State considers "that it has an
interest of a legal nature which may affected by the decision
in the case."
Nicaragua asserted a variety of interests in the outcome
of the case with regard to the maritime and island disputes,
although not concerning the land frontier delimitation. El
Salvador opposed the Nicaraguan Application; Honduras had
no objection to it. The Chamber held, unanimously: (1) that
Nicaragua had an interest of a legal nature that might be
affected by the Chamber's judgment on the merits with re-
spect to the legal regime of the waters of the gulf, but not
with respect to any other decisions that the Chamber might
make; and (2) that Nicaragua could intervene in the case
with respect to that issue. ThiB is the first time in the history
of the Court that a State has been permitted to intervene
under Article 62 of the Statute.
The Chamber began its analysis by briefly relating the

historical background of the dispute regarding the gulf. It
noted that the parties themselves were not agreed upon the
precise scope of the issues that the Chamber should decide,
and it then reviewed the submissions of Nicaragua with re-
gard to the three requirements set out in Article 81, para-
graph 2 of the Rules of Court for all applications to intervene.
First, Nicaragua had listed various bases for its legal interest
in the case, emphasizing the trilateral nature of the dispute
over the gulf. Second, its stated purposes were to protect its
legal rights in and around the gulf and to inform the Cham-
ber of the nature of those rights; Nicaragua affirmed that it
would subject itself to the decision of the Chamber. Third,
Nicaragua argued that the Statute of the Court provided a
sufficient jurisdictional basis.
After quickly disposing of a series of procedural objec-

tions by El Salvador, the Chamber turned to the merits of the
Application. The first section of the Chamber's opinion exam-
ined whether Nicaragua had demonstrated "an interest of a
legal nature which may be affected by the decision." The
Chamber reviewed this issue from the perspective of the
assertion by Nicaragua that it not only had such an interest,
but that this interest was also part of the subject matter of
the case and that the Chamber could only rule of the case
with Nicaragua's participation. In determining the existence
of the legal interest, the Chamber set forth a standard of
proof for applicants: first, that the burden of proof is upon the
applicant to "demonstrate convincingly what it asserts," add-
ing that a "general apprehension is not enough"; and second,
as stated in Article 62, that the applicant need only show
that the interest "may" be affected by the Court's decision.
The Chamber noted that, in the current case, Nicaragua
needed to demonstrate this interest regardless of the
Chamber's ultimate holding on the parties' conflicting as-
sertions of the scope of the dispute.
The Chamber then examined Nicaragua's stated inter-

est with respect to each of the five issues on which it believed
it might have to rule during the merits stage: the status of
the islands, the status of the internal waters, any delimita-
tion of those waters, the status of the waters outside the gulf,
and any delimitation of those waters. First, the Chamber
quickly found that Nicaragua had failed to show that any
interest it had in the legal status of the islands would "be

directly affected" by the Chamber's decision, and that, at best,
Nicaragua had an indirect interest related to the delimita-
tion of the watera of the gulf.
In considering Nicaragua's interest in the Chamber's
decision on the status .of the waters of the gulf, the Chamber
reasoned out that, if it accepted El Salvador's view that a
1917 decision by the Central American Court of Justice in a
case between El Salvador and Nicaragua had created a con-
dominium status for the gulf that Honduras had to accept,
Nicaragua would have an interest in the res judicata effect of
that caBe and an interest as a fellow riparian State. If, upon
the other hand, the Chamber ruled for Honduras, and found
only a community of interest in the gulf, Nicaragua would
still have an interest as a coastal State. The Chamber, how-
ever, rejected the contention by Nicaragua that its interests
formed the "very subject-matter of the decision," as the
Chamber would not be adjudicating Nicaragua's rights in its
judgment on the merits. Thus, the Chamber did not need to
consider whether it could rule on the merits without Nicara-
gua's participation.
Regarding any delimitation of the waters of the gulf

that it might undertake, the Chamber found that Nicara-
gua's interest in "general legal rules and principles" that the
Chamber would employ in a delimitation could not justify
intervention. Absent a showing of more definite interests,
Nicaragua had failed to meet the burden of proof required by
the Chamber. The Chamber found no direct Nicaraguan in-
terest in a decision on the status of the waters outside the
gulf that would justify intervention. Finally, it held that
Nicaragua had failed to demonstrate that, if the Chamber
had to delimit those water, thi6 delimitation might affect
Nicaragua. It rejected the Nicaraguan Agent's claim that a
glance at a map of the gulf and the ocean outside it made this
interest "plain," noting instead that Nicaragua had not shown
how any possible delimitation "would affect an actual Nicara-
guan interest."
The second section of the opinion considered the pur-

pose of Nicaragua's intervention, and whether this purpose
"corresponds to what is envisaged by the Statute." The
Chamber first reiterated that, for intervention to be granted,

the applicant need not show more regarding ita interests in
the case than is set forth in Article 62. The applicant is not
required to go further by Bhowing "that it has rights which
need to be protected." The Chamber also rejected El Salva-
dor's contention that Nicaragua should have protected inter-
ests by making them clear in the Application. It held that
Nicaragua's stated purpose for the intervention, i.e., advising
the Chamber of its rights, "is perfectly proper, and indeed the
purpose of intervention." Moreover, it found it important that
Nicaragua was not trying to introduce a new dispute, which
would be permissible under Article 62. Nicaragua did not
seek a decision on its own claims in the gulf but merely
wished to advise the Chamber of its rights and protect them
in the ongoing case.
In the third section of the Judgment, the Chamber con-

sidered El Salvador's argument that Nicaragua must show a
valid jurisdictional link with the parties to the dispute. Pro-
ceeding from the premise that the Court's jurisdiction over
any two parties to a case is consensual, the Chamber rea-
soned that, because procedures for intervention formed part
of the Statute of the Court, the parties to a case before the
Court, as parties to the Statute as well, had consented to
permit the Court to allow intervention by any State that met
the criterion of Article 62. The opposition of both parties could
not prevent the Court from granting a proper application.
The Chamber emphasized, however, than an application under
Article 62 had to be limited to intervention in the same case."It
is not intended to enable a third State to tack on a new case,
to become a new party," which "would be a new case." A State
could not rely upon the incidental jurisdiction provided by
Article 62 to circumvent the requirement of consensual juris-
diction. Without a separate jurisdictional basis, the State could
intervene, but only as a non-party. The Chamber underscored
that the Rules of the Court did not require that the Article
62 applicant show any separate basis of jurisdiction.
The Chamber concluded its opinion by clarifying the

procedural rights to be accorded to Nicaragua as intervenor.
While not a party to the case, Nicaragua was entitled to
present oral argument. Its intervention would be limited to
the only area in which Nicaragua h a d demonstrated a legal
interest, i.e., the status of t h e waters of t h e gulf.
CONBEQUENCES OP RIGHTS:
Secretary-General's Trust Fund and the ICJ
In response to the need of developing countries, the Secre-

tary-General of the United Nations established in 1989 a Trust
Fund. The purpose of the Fund is to provide financial assistance
in order to encourage States to seek a solution to their legal dis-
putes thru the International Court of JuBtice. Legal disputes exist
in various parts of the world. The high costs incurred in proceed-
ings often constitute a financial obstacle to the seeking of a judicial
settlement thru the court. This is particularly true in many devel-
oping countries where multiple needs compete for every limited
funds. There are known cases where the parties are prepared to
resort to judicial settlement but are in need of funds or legal ex-
pertise or both. There have also been cases where the parties were
willing but unable to implement an ICJ Judgment. The availabil-
ity of external resources in such cases can be extremely helpful in
their search for peaceful means thru the Court for the settlement
of disputes. The Trust Fund offers limited financial assistance for
the purpose of defraying expenditures incurred in Court proceed-
ings. If thus encourages States to make better use of the Interna-
tional Court of Justice and also actively foster the peaceful set-
tlement of disputes.
The Fund has received worldwide support and some 30 States

from all regions of the world have made financial contributions. It
received its first application in March 1993 and an award waB
subsequently made in May to a developing country which is seek-
ing a solution to a dispute with its neighbor thru the International
Court of Justice. A second application, also from a developing
country, is now pending. The present assets of the Fund are, how-
ever, very limited. Relations in many regions of the world will
indeed be greatly improved if more legal disputes can be settled
thru the International Court of Justice, the legal arm of the United
Nations. The Fund relies on voluntary contributions and is open
to all entities. It welcomes from States, individuals, institutions,
corporations, and non-governmental organizations. Contributions
may be made in monetary terms (to the Secretary-General's Trust
Fund to assist States in the Judicial Settlement of Disputes,
Chemical Bank, UN Branch Account No. 016-004473). Further
information may be obtained from the Office of th Legal AffairB,
Office of the Legal Counsel, United Nations Secretariat, New York
N Y . 10017.
The ICJ on Serbia

On April 9, 1993, the International Court of Justice (ICJ)
ordered Serbia to stop any acts of genocide against Bosnian
Muslims. The Court stressed that it was not ruling on the issue of
whether genocide is in fact being committed in Bosnian civil war.
However, the ICJ refused to exempt Bosnia from the UN weapons
embargo against the former Yugoslav states.
While the emergency measures carry enormous moral force,

the ICJ has no enforcement powers. Its rulings can be enforced by
the UN Security Council, although none has ever been.
Libyan A r a b Jamahiriya v. U S A
April 14, 1992 (Indication of Provisional
Measures U n d e r Article 41 of ICJ Statute)
On April 14, 1992, the International Court of Justice

made an Order in the case concerning Questions of Inter-
pretation and Application of the 1971 Montreal Convention
Arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United States of America), which it found, by
11 votes to 5, that the circumstances of the case are not such
as to require the exercise of its power under Article 41 of the
Statute to indicate provisional measures (Art. 41 provides: "1.
The Court shall have the power to indicate if it considers that
circumstances so require, any provisional measures which
ought to be taken to preserve the respective rights of either
party. 2. Pending final decision notice of the measures sug-
gested shall forthwith be given to the Parties and to the
Security Council.")
In its Order, the Court recalls that on March 3, 1992

the Libyan Arab Jamahiriya instituted proceedings against
the United States over the interpretation or application of
the Montreal Convention of September 23, 1971, a dispute
arising from the aerial incident that occurred over Lockerbie,
Scotland, on December 21, 1988 and that lead to a Grand
Jury of the United States District Court for the District of
Columbia, indicting, on November 14, 1991, two Libyan na-
tionals, charging, inter alia, that they had "caused a bomb to
be placed abroad [Pan Am Flight 103], which bomb had ex-
ploded causing the aeroplanes to crash." The Court then re-
cites the history of the case. It refers to the allegations and
submissions made by Libya in its Application in which it

asks the Court to adjudge and declare: "(a) that Libya has
fully complied with all its obligations under the Montreal
Convention; (b) that the United States has breached, and is
continuing to breach, its legal obligations to Libya under
Articles 5, paragraphs 2, 5, paragraphs 3, 7, 8, paragraphs 2
and 11 of the Montreal Convention; and (c) that the United
States is under a legal obligation immediately to cease and
desist from such breaches and from the use of any and all
force of threats against Libya, including the threat of force
against Libya, and from all violations of the sovereignty,
territorial integrity, and the political independence of Libya."
The Court also refers to Libya's request (filed, like the Appli-
cation, on March 3, 1992, but later in the day) for the indi-
cation of the following provisional measures: "(a) to enjoin
the United Slates from taking any action against Libya cal-
culated to coerce or to compel Libya to surrender the accused
individuals to any jurisdiction outside of Libya; and (b) to
ensure that no steps are taken that would prejudice in any
way the rights of Libya with respect to the legal proceedings
that are the subject of Libya's Application." The Court fur-
ther refers to the observations and submissions presented by
both Libya and the United States at the public hearings on
the request for the indication of provisional measures held on
March 26, 27 and 28, 1992.
The Court then takes note of the joint declaration issued

on November 27, 1991 by the United States of America and the
United Kingdom following on the charges brought by a Grand
Jury of the United States District Court for the District of
Columbia against the two Libyan nationals in connection with
the destruction of Pan Am Flight 103, and which reads: T h e
British and American Governments today declare that the
Government of Libya must: surrender fo trial all those charged
with the crime; and accept responsbility for the actions of Libyan
officials; disclosure all it knows of this crime, including the names
of all those responsible, and allow full access to all witnesses,
documents and other material evidence, including all the re-
maining timers: pay appropriate compensation. We expect Libya
to comply promptly and in full."
The Court also takes note of the fact that the subject of
that declaration was subsequently considered by the United
Nations Security Council, which on January 21, 1992 adopted
Resolution 731 (1992), of which the Court quotes, inter alia,

the following passages: "Deeply concerned over the results of
investigations, which implicate officials of the Libyan Gov-
ernment and which are contained in Security Council docu-
ments that include the requests addressed to the Libyan
authorities by France, the United Kingdom of Great Britain
and Northern Ireland and the United States of America [S/
23308], in connection with the legal procedures related to the
attacks carried out against Pan American flight 103 and Union
de transport aeriens flight 772; 2. Strongly deplores the fact
that the Libyan Government has not yet responded effectively
to the above request to cooperate fully in establishing
responsiblity for the terrorist acts referred to above against
Pan American flight 103 and Union de transports aeriens
flight 772; 3. Urges the Libyan Government immediately to
provide a full and effective response to those requests so as
to contribute to the elimination of international terrorism;"
The Court further notes that on March 31, 1992 (three

days after the close of the hearings) the Security Council
adopted resolution 748 (1992) stating, inter alia, that the
Security Council: Deeply concerned that the Libyan Govern-
ment has still not provided a full and effective response to
the requests in its Resolution 731 of January 21, 1992.
Convinced that the suppression of acts of international
terrorism, including those in which States are directly or in-
directly involved, is essential for the maintenance of interna-
tional peace and security. Determining in this context, that
the failure by the Libyan Government to demonstrate in
concrete actions its renunciation of terrorism and in particular
its continued failure to respond fully and effectively to the
requests in resolution 731 (1992) constitute a threat to in-
ternational peace and security. Acting under Chapter VII of
the Charter, the Court: 1. Decides that the Libyan Govern-
ment must now comply without any further delay with
paragraph 3 of Resolution 731 (1992) regarding the requests
contained in documents S/23306, S/23308 and S/23309; 2.
Decides also that the Libyan Government must commit itself
definitely to cease all forms of terrorist action and all as-
sistance to terrorist groups and that it must promptly, by
concrete actions, demonstrate its renunciation or terrorism;
3. Decides that, on April 15, 1992 all States shall adopt the
measures Bet out below, which shall apply until the Security
Council decides that the Libyan Government has complied

with paragraphs 1 and 2 above; 4. Calls upon all States,
including States not members of the United Nations, and all
international organizations, to act strictly in accordance with
provisions of the present resolution, notwithstanding the
existence of any rights or obligations conferred or imposed by
any international agreement or any contract entered into any
license or permit granted prior to April 15, 1992.
The Court observes that Document S/23308, to which
reference was made in Resolution 748 (1992), included the
demands made by the United States of Ameica and the United
Kingdom in their joint declaration of November 27, 1991, as
set out above. After having referred to the observations on
Security Council Resolution 748 (1992) presented by both
Parties in response to the Court's invitation (as well as by
the Agent of the United States in an earlier communication),
the Court goes on to consider as follows: "Whereas, the Court,
in the context of the present proceedings on a request for
provisional measures, has, in accordance with Article 41 of
the Statute, to consider the circumstances drawn to its atten-
tion as requiring the indication of such measures, but cannot
make definitive findings either of fact or of law on the issues
relating to the merits, and the right of the Parties to contest
such issues at the stage of the merits must remain unaffected
by the Court's decision; Whereas both Libya and the United
States, as Members of the United Nations, are obliged to
accept and carry out the decisions of the Security Council in
accordance with Article 25 of the Charter, whereas the Court,
which is at the stage of proceedings on provisional measures,
considers that prima facie this obligation extends to the de-
cision contained in Resolution 748 (1992); and whereas, in
accordance with Article 103 of the Charter, the obligations of
the Parties in that respect prevail over their obligations under
any other international agreement, including the Montreal
Convention; Whereas the Court, while not at this stage called
upon to determine definitively the legal effect of Security
Council Resolution 748 (1992), considers that, whatever the
situation previous to the adoption of that resolution, the rights
claimed by Libya under the Montreal Convention cannot now
be regarded as appropriate for protection by the indication of
provisional measures; Whereas, furthermore, an indication of
the measures requested by Libya would be likely to impair
560 [NTERNATIONAL LAW A N D WORLD POLITICS
the rights which appear prima facie to be enjoyed by the United

States by virtue or Security Council Resolution 748 (1992);
Whereas, in order to pronounce on the present request for
provisional measures, the Court is not called upon to determine
any of the other questions which have been raised before it in
the present proceedings, including the question or its jurisdiction
to entertain the merits of the case; and whereas the decision
given in these proceedings in no way prejudges any such question,
and leaves unaffected the rights of the Government of Libya and
the government of the United States to submit arguments in
respect of any these questions:
For these reasons, T H E COURT, By eleven votes to five,
finds that the circumstances of the case are not such as to
require the exercise of its power under Article 41 of the Stat-
ute to indicate provisional measures.
The Weakness in Enforcing a Judgment
The question of enforcing both arbitral awards and judicial

decisions, has beduffled the world court. Thus, whenever a State
finds objection to carrying out an award or a decision, it tends to
advance the doctrines of nullity or impossiblity of performance.
Three (3) main reasons for such nullity are given, to wit:
One. Excess of power, i.e., the charge that the arbitral tribunal
or the court in question exceeded the powers granted to it.
Two. Corruption of a member of the Tribunal.
Three. A serious deviation from the rules of procedure in
making the award or decision.
In the event that the "losing" party refuses to comply with an
arbitral award or a judicial decision, the "winning" stale may re-
sort to self-help measures short of war.
States That Have Signed the Optional Clause

At least thirty-nine (39) States and nations had become subject
in varying degrees, in relation to one another, to the COMPUL-
SORY jurisdiction of the International Court in legal disputes
enumerated in Art. 36, No. 2 of the Statute. These nations include
the United States and ten of the Latin-American republics (Colom-
bia, Dominican Republic, El Salvador, Haiti, Honduras, Mexico,

Nicaragua, Panama, Paraguay and Uruguay); the United Kingdom
and six other members of the British Commonwealth (Australia,
Canada, India, Pakistan, New Zealand, and Union of South Africa);
France and ten other nations of the European continent (Belgium,
Denmark, Finland, Liechtenstein, Luxembourg, Netherlands,
Norway, Portugal, Sweden, and Switzerland); seven Asian nations
(Cambodia, Japan, Taiwan, Israel, Philippines, Thailand, and
Turkey); and three African , nations (Liberia, United Arab Republic,
and Sudan). Notable absences from the list are Peru, Greece,
Guatemala, Argentina, Brazil, Chile, Italy, West Germany, Spain
3
and A L L the Communist nations. *
By April 1993, a UN draft resolution tightening sanctions

against Yugoslavia has been readied. The resolution would tighten
the international embargo imposed on the rump Republic of Yu-
goslavia — Serbia and Montenegro — since May 30, 1992, with
the aim of promoting peace in neighboring Bosnia-Hercegovina.
The new measures would ban the transshipment of goods

across Yugoslavia, on the Danube River and on Yugoslavia's ter-
ritorial waters in the Adriatic, and they would put a freeze on all
financial dealings with the republics.
Guinea-Bissau v. Senegal
1991 ICJ Rep. 53 (Nov. 12)
31 I L M 32 (1992)
On August 23, 1989, Guinea-Bissau Filed a unilateral

application instituting preceding against Senegal in the In-
ternational Court of Justice based on the optional clause
declarations of both States. Guinea-Bissau was seeking a
declaration that the award of an arbitration between the
parties, rendered on July 31, 1989, was "inexistent" for lack
of a real majority. Subsidiarily, Guinea-Bissau contended that
the award was null and void because the Tribunal had failed
to answer the second of two questions put to it, had not
decided on the delimitation of the maritime area concerned
as a whole by a single line on a map, and had not given the
reason for so failing to exercise its jurisdiction. The Court
y,
The Rule of Law Among Nations. American Bar Association, April 15.
19fiO. p 7
INTERNATIONAL L A W A N D W O R L D POLITICS
rejected all of Guinea-Bissau's submissions and held that the

award was valid and binding on both parties.
Recall that on April 26. 1960, Portugal and France
concluded an Agreement for the purpose of defining the
maritime boundary between the Republic of Senegal (then an
autonomous State within the French Community) and the
Portuguese province of Portuguese Guinea. After Guinea-
Bissau and Senegal gained independence, a dispute arose
between them concerning the delimitation of their maritime
areas. This dispute was the subject of negotiation from 1977
onward, in the course of which Senegal asserted that the line
defined in the 1960 Agreement had been validly established.
Guinea-Bissau disputed the validity of that Agreement and
its "opposability" to Guinea-BiBsau, insisting that the mari-
time areas in question be delimited without reference to the
Agreement. On March 12, 1985, the parties concluded an
Arbitration Agreement, which set forth in Article 2 two
questions presented to the three members of the arbitration
panel:
1. Does the Agreement concluded by an exchange of

letters on April 26, 1960, and which relates to the maritime
boundary have the force of law in the relations between the
Republic of Guinea-Bissau and the Republic of Senegal?
2. In the event of a negative answer to the first
question, what is the course of the line delimiting the maritime
territories appertaining to the Republic of Guinea-Bissau and
the Republic of Senegal, respectively?
The Arbitration Agreement went on to state that the
decision "shall" include the drawing of the boundary line on
a map, and that the award would be binding on the two
parties.
The arbitral tribunal, composed of Mohammed Bedjaoui
and Andre Gros, arbitrators, and Julio A. Barberis, President,
pronounced the award on July 31, 1989. The Court summa-
rized the findings of the tribunal in its Judgment: the 1960
Agreement was valid and could be opposed to Senegal and
Guinea-Bissau; it had to be interpreted in light of the law in
force at the date of its conclusion; and it did not delimit the
maritime areas that did not yet exist when it was concluded
(including the EEZ and fishery zones), but did delimit the
territorial sea, the contiguous zone and the continental shelf,

as they were expressly mentioned in the Agreement. Because
the definition of the continental shelf in 1960 included the
"dynamic" criterion of exploitability, the tribunal concluded
that the Agreement delimited the continental shelf over the
whole extent of that maritime space as denned at present.
The tribunal declined to answer the second question presented
and considered that there was no need to append a map
showing the course of the boundary line. In the operative
clause of the award, the tribunal answered the first question
in the affirmative, deciding that the 1960 Agreement had the
force of law between Guinea-Bissau and Senegal with regard
solely to the areas mentioned in the Agreement. President
Barberis appended a declaration to the award essentially that
he would have answered the first question not simply by
finding the Agreement to have the force of law, but by explicity
indicating to which maritime areas the line of the Agreement
pertained, i.e., the territorial sea, the contiguous zone and
the continental shelf, but not the exclusive economic zone or
the fishery zone. Such a "partially affirmative and partially
negative reply" would have enabled the tribunal to answer
the second question and append a map. Mr. Bedjaoui, who
had voted against the award, appended a dissenting opinion.
He stated that the failure to answer the second question meant
the award as "incomplete and inconsistent with the letter
and spirit of the Arbitration Agreement with regard to the
single line desired by the Parties."
Before reaching the merits, the Court addressed the

matters of jurisdiction and admissibility. Senegal had made
a replacement optional clause declaration that essentially
would have barred resort to the Court for matters arising out
of the underlying maritime delimitation dispute. The parties
agreed, however, that the case involved not the maritime
dispute but, rather, the rendering of the arbitral award, which
occurred after Senegal had made the new optional clause
declaration. This supports the Court's emphasis that the
proceedings were not an appeal from the arbitration: that,
i.e., the Court was not going to inquire into the internal pro-
ceedings of the arbitration so as to decide whether the ar-
bitrators' decision was right or wrong; rather, the Court's
function WBB to decide whether the tribunal's award was a
nullity. The Court then considered and rejected Senegal's
contention that Guinea-Bissau's Application was inadmissible,

inter alia, because President Barberi's declaration was not
part of the award, and hence any attempt by Guinea-Bissau
to use it was an abuse of the process. Although Guinea-Bissau
contended that the absence of Mr. Gros when the award was
pronounced amounted to recognition that the tribunal had
failed to resolved the dispute, the Court concluded that his
absence could not affect the validity of the award, which had
already been adopted. The Court next examined the sub-
missions of Guinea-Bissau. The latter supported its main
submission that the award was inexistent for lack of a real
majority by contending that President Barberis's declaration
contradicted and invalidated his vote. The Court found that
his statement that the tribunal's answer to the first question
"could have been more precise" merely indicated a preference
and disclosed no contradiction with the award. It added that,
even if there had been a contradiction, the declaration of
President Barberis could not prevail over his vote on the
decision. Subsidiarily, Guinea-Bissau contended that the
award was null and void on the grounds of exces de pnuvoir
and insufficiency of reasoning: the failure to answer the second
question constituted an exces de pouvoir, and the tribunal
had not explained why it had declined to proceed to the second
question, to provide a single maritime delimitation line, and
to draw that line on a map. Guinea-Bissau made three ar-
guments to support its contention that the tribunal had not
answered the second question: the tribunal never really made
a decision not to give an answer; that even if there was such
a decision, there was insufficient reasoning to support it; and
that any such decision would be invalid.
The Court rejected the argument that the second question

was not answered. Allowing that "it would have been normal
to include in the operative part of the Award, i.e., in a final
paragraph, both the answer given to the first question and
the decision not to answer the second," the Court concluded
that the tribunal had decided not to answer the second
question; the award was not flawed by a failure to decide.
The Court found support for its conclusion in paragraph 87
of the award, as well as, ironically, the declaration of President
Barberis. The contention that the tribunal had given insuf-
ficient reasoning for failing to answer the second question
was also rejected. The references in paragraph 87 to the
tribunal's previous conclusions made it possible Tor the Court

to determine, "without difficulty," the tribunal's rationale for
not answering the second question: "Having given an af-
firmative answer to the first question, and basing itself on
the actual text or the Arbitration Agreement, the Tribunal
found as a consequence that it did not have to reply to the
second question. That statement of reason, while succinct is
clear and precise." The Court also dismissed Guinea-Bissau's
contention that the reasoning thus adopted by the tribunal
on whether it was required to answer the second question
was invalid. Guinea-Bissau argued, first, that the proper
construction of the Arbitration Agreement required an an-
swer to the second question, regardless of the answer to the
first; and second, that an answer to the second question was
required in any event because the answer to the first was in
fact partially negative.
The Court answered the first argument by pointing out

that Guinea-Bissau was criticizing the interpretation of the
Arbitration Agreement in the award and proposing a new
interpretation, although the tribunal, under the terms of the
Arbitration Agreement, had the power to determine its own
jurisdiction and to interpret the Agreement for that purpose.
The Court pointed out that its task was not to decide whether
a particular interpretation was preferable — that would be to
treat the request as an appeal and not a recours en nullite.
Rather, the Court's task was to ascertain whether, by render-
ing the disputed award, the tribunal had acted in "manifest
breach" of the jurisdiction conferred on it by the Arbitration
Agreement.
The Court declared that it must interpret the Arbitra-

tion Agreement according to international law, i.e., by first
examining the natural and ordinary meaning of the provisions,
unless the natural and ordinary meaning of the provisions
results in a meaning that is incompatible with the spirit,
purpose and context of the clause or instrument. Furthermore,
the Court declared that an arbitral must conform to the terms
of its task as defined by the parties. In this case, the Court
explained, the tribunal was required by the Arbitration
Agreement to reply to the second question "in the event of a
negative answer to the first question." In dicta, it declared
that the parties could have directed the tribunal otherwise
(perhaps by directing it to answer the Becond question "tak-

ing into account" the answer to the first), but they had not.
The Court compared this Arbitration Agreement to an earlier
one concluded in 1983 by Guinea-Bissau and Guinea, in which
the parties had asked another arbitral tribunal to answer
subsequent questions to a Beries of initial questions "according
to the answers given." The implication was that Guinea-Bissau
had the benefit of prior experience and should have drafted
the Arbitration Agreement in this case accordingly.
With regard to the ordinary meaning of the Arbitration

Agreement, Guinea-Bissau stressed that the object of the ar-
bitration, based on the preamble to the Arbitration Agreement,
was to settle the dispute that had arisen between the two
countries. Therefore, the tribunal had been required to delimit
by a single line the whole of the maritime areas appertaining
to each State. Notwithstanding the prefatory words to the
second question, then, the tribunal had been required to
answer that question and effect the overall delimitation de-
sired by the parties. The Court also rejected this contextual
argument. It recalled the circumstances surrounding the
drawing up of the Arbitration Agreement, and pointed out
that Senegal had always maintained the legal validity of the
1960 Agreement between France and Portugal in the rela-
tions between the two States by virtue of the rules of State
succession. Guinea-Bissau, upon the other hand, had con-
sidered the Agreement "inexistent, null and void, and in any
case not opposable to it." Although both parties had intended
to delimit the whole of the maritime area with a single border,
Senegal had hoped to achieve this result by an affirmative
answer to the first question and a confirmation of the 1960
line as the single maritime boundary; whereas Guinea-Bissau
had hoped to achieve it by a negative answer to the first
question and, consequently, an ex novo delimitation without
reference to the 1960 Agreement. The Court found that the
parties had reached no agreement as to what should happen
in the event of an affirmative answer leading only to a partial
delimitation. A c c o r d i n g l y , it found that the travaux
preparatoires confirmed the ordinary meaning of Article 2 of
the Arbitration Agreement. Thus, while the mandate of the
tribunal had included the delimitation of all maritime areas
of the parties, it was to do so only under the second question
and "in the event of a negative answer to the first question."
Although the parties had expressed their desire to reach a

settlement in general terms in the preamble to the Arbitration
Agreement, their consent had only been given in the terms
expressed in Article 2.
The Court next turned to Guinea-Bissau's second argu-
ment: that the answer given to the first question was in fact
partially negative and sufficed to satisfy the prescribed
condition for answering the second question. It noted that the
tribunal had not adopted the wording that President Barberis
would have preferred. The parties had asked the tribunal
whether the 1960 Agreement had the force of law and, in its
affirmative answer, the tribunal defined the substantive scope
of the Agreement. That this answer to the first question did
not settle the dispute and achieve a delimitation of all the
maritime areas concerned did not affect its completeness. In
this respect, then, the Court rejected Guinea-Bissau's conten-
tion of nullity, concluding that the tribunal did not mani-
festly breach its competence in its answer to the first ques-
tion. Finally, the Court dealt with Guinea-Bissau's conten-
tion that the award should be considered wholly null and
void because the tribunal had failed both to include the draw-
ing of the boundary line on a map as directed and to give
sufficient reasons for its decisions on that point. The Court
decided that the reasoning given by the tribunal in describing
the boundary line fixed by the 1960 Agreement and referencing
the sketch in the preparatory work for the 1960 Agreement
was sufficient to indicate the boundary line. In any case, the
Court concluded, the mere absence of a map did not consti-
tute such an irregularity as would render the award invalid.
FORCIBLE SANCTIONS
Among the forcible measures generally resorted to 88 sanctions
in international law are the following:
severance or rupture of diplomatic relations (this is a
serious matter" usually the diplomatic agents of the country against
which the grievance lies are handed their passports, or are ordered
to leave); ™
" W i b o n , Handbook of International Law. p. 226.

Examples: In 1961 the Philippines broke off diplomatic rela-

tions with Cuba upon the discovery by the (Philippine) National
Bureau of Investigation that the Cuban embassy had allegedly
become a front for subversive elements; the United States has
already severed diplomatic ties with Cuba on account of the
Communist-influenced fanaticism of Castro's Cuban Government).
(2) retorsions (unfriendly but lawiul coercive acts done in
17
retaliation for unfair treatment and acts of discrimination);
Example: (levy of high discriminatory tariffs)
(3) reprisals (nnfrirndlT m d unlawful acts in retaliation for
38
reciprocal illegal actuations);
(Example: freezing of the assets of the nationals of the State
which is the subject of retaliation.)
(4) special forms of reprisals:
(a) embargo — this is a special form of reprisal which,
in general, consists in the forcible detention or sequestration
of the vessels and other property of the offending State or
39
even of its own;
[NOTE: If a State prevents exit from its ports of its own
vessels or properties, this is known as civil or pacific embargo;
if foreign properties and vessels (of the offending State) are
the object of the prohibition, the embargo is called a hostile
40
embargo.)
N.B.:
The United Nations ( U N ) , moved by its humanitarian
nightmare and the test that poses for global security after
the Cold War, imposed mandatory economic sanctions on
Slobodan Milosevic's outlaw Serbian regime. To illustrate the
Serbian aggression and atrocities: On May 27, 1992, Serbian
troops lobbed mortar shells into a bread line in saravejo.
killing at least 17 civilians and wounding more than 100.
While the aforecited incident began to get at the causes

of this nightmare, also urgently needed to be addressed were
the effects, e.g., the 700,000 people already displaced by the
Serbian carnage. The first thing done was to encourage an
armed UN escort for international relief efforts to ease their
suffering.
On almost the same point, two questions cropped up re:

an urgent short-term responsibility that fell to the UN and
one it failed to shoulder, i.e., to deal with the plight of des-
perate people driven from their homes by Serbia's appaling
"ethnic cleansing" in Bosnia.
What did the UN High Commissioner for Refugees do
after a dozen UN trucks loaded with food and medicine were
hijacked at gunpoint? Did he send in armed guards? No. He
suspended the aid convoys, despite the Bosnian's urgent needs.
The Red Cross also suspended operations after one of its
relief workers was killed.
What then were the mandatory step-by-steps sanctions
under Chapter 7 of the UN Charter (which permits UN
members to use force, as what was employed against Iraq's
Saddam Hussein) directed against the forces of Milosevic?
They were, to wit:
One. The U.S., upon UN's gesture, recalled its ambas-

sador and suspended all flights by the Yugoslav national air-
line.
Two. A UN arms embargo was affected. Along this line,
the U.S. helped tighten the arms embargo by putting pres-
sure on neighboring States that were engaged in gun-running.
Three. The European Community, also in compliance
with the UN's call for measures, imposed partial sanctions.
Unfortunately, no real leverage was made because of
the absence of an international cutoff of oil. If this eventually
had materialized, it would have required Greece, Romania,
and all of Serbia's neighbors to go along; the U.S. and others
could have offered to buy the oil bound for Serbia, and threaten
sanctions against those who violate the embargo.
(b) pacific blockade — a special kind of reprisal which

prevents entry to or exit from the ports of the offending State
of means of communication and transportation. Formerly, UUB

kind of naval operation in time of peace was allowed; today,
however, it would seem that international law prohibits the
41
same without the sanction or the U N ;
(c) nonîateccottrse — suspension of all intercourse with
the offending State, particularly in matters of trade and
2
commerce;''
(d) ArtyjWL— rnncerted suspension of commercial re-
lations with* the offending State, with particular reference to
43
a refusal to purchase goods. The ban by the European
Economic Community (European Common Market) on oil
imports from Iran as a consequence or the holding of hostages
by militant Iranian students iB a clear example of a modern-
44
day boycott.
(5) compulsive or enforcement measures under the UN

Charter: '—
Art. 41 of the UN Charter provides:
T h e Security Council may decide what measures not
involving the use of armed force are to be employed to give
effect to its decisions, and it may call upon the members of
the United Nations to apply such measures. These may include
complete or partial interruption of economic relations and of
rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations."
Art. 42 of the Charter says:

"Should the Security Council consider that measures
provided for in Art. 41 would be inadequate or have proved
to be inadequate, it may take such action by air, sea, or land
forces as may be necessary to maintain or restore international
peace and security. Such action may include demonstrations,
blockade, and other operation by air, sea, or land forces of
Members of the United Nations."
Art 43 of the Charter says:
" S e e Fenwick, op. eit., p. 437.

"ibid p. 436.
"Ibid., p. 437.
**See Bulletin Today, April 23, 1980.
CONSEQUENCES OF M O O T S : 571
"1. All Members of the United Nations, in order to

contribute to the maintenance of international peace and
security, undertake to make available to the Security forces,
assistance, and facilities including rights of passage, necessary
for the purpose of maintaining international peace and se-
curity.
"2. Such agreement or agreements shall govern the

number and types of forces, their degree of readiness and
general location, and the nature of the facilities and assist-
ance to be provided.
"3. The agreement or agreements shall be negotiated
as soon as possible on the initiative of the Security Council.
They shall be concluded between the Security Council and
Members, or between the Security Council and groups of
Members and shall be subject to ratification by the signatory
States in accordance with their respective constitutional
processes."
ECONOMIC SANCTIONS
At any rate, sanctions come in a variety of forms and, accord-

ing to lawyers and financial analysts, who have studied the range
of possible measures, the economic consequences can vary con-
siderably.
With specific reference to sanctions that may be imposed on,
let us say, the Philippine government in the event of a default on
external obligations, these include forcible measures generally
resorted to under international law, thus:
Landing Rights. A proposal to rescind the country's landing

rights in the United States will not only inconvenience Filipino
travelers and transients, but also affect the Philippine Air Lines
( P A L ) , the country's official air carrier, of its economic sustenance.
Consulates. A proposal to end visa services at U.S. consulates
in the Philippines will mean a stop to Filipino migration, the so-
called "brain-drain syndrome." This spells the end of overseas
opportunities for a lot of qualified professionals and highly skilled
workers.
Private Loans. Another option is to ban U.S. bank loans to
the Philippines. Lack of foreign capital sharply limits the growth
of Philippine economy. Eventually the effect could be lower prof-

itability for businesses, and e v e n t u a l l y increased unemployment.
New Investments. A ban on all new investments in subsidiar-
ies, is another example of a sanction affected by market forces.
Rather than pump new money in Philippine operation, parent
companies in the U.S. have been selling ofT assets or letting
branches use their profits to modernize. Results: a net flow of
capital from the subsidiaries to their U.S. headquarters rather
than the reverse. Less U.S. business activity in the Philippines not
only crimps the country's economic growth, deprives it of technol-
ogy, but hits employment hardest.
Total Trade Embargo. This measure could clip the profits of
businesses and apply marginal pressure on the government on a
significant scale. A trade embargo will have much financial effect
on Philippine export earnings.
Disinvestment. Possibly, the most sweeping and controversial
sanction is one that will give all American companies to get rid of
all their assets in the Philippines. A forced withdrawal will lead
either to a dissolution of these private U.S. assets or their disposal
at fire-sale prices to private buyers. The impact on the Philippines
will probably be at least at temporary loss in skilled management
and lower profits.
To abate any deterious upshot, the Philippine government, in
anticipation of all possible sanctions, may develop a two-tier ex-
change rate for the peso, with lower rates on money from the sale
of foreign assets, that will minimize its own capital loss in any
foreign-business pullout.
'No-Fly Zone' in Iraq

A 'no-fly' zone in Iraq has been imposed in accordance with
UN Security Council Resolution 688, which calls for protecting
Iraq's population against Saddam Hussein's minority Sunni Mus-
lim-dominated government. There is also a no fly zone in southern
Iraq to protect the Kurdish minority there. Saddam unleashed a
wave of terror against the Shiite population in the South to crush
the anti-government rebellion that errupted in March 1991 fol-
lowing the Iraqi defeat by a U.S.-led allied force in the war. The
U.S., Britain, and France said Iraq was attacking Shiites hiding in
the marshes w i t h fighter-bombers and helicopter gunshipB in de-
fiance of UN resolutions. Thus, when t h e U.S. Bhot down an Iraqi
fighter aircraft on late December 1992, i.e., two Iraqi warplanes

"turned to confront" U.S. F-16 jets in UN-restricted airspace over
southern Iraq, it was the first Iraqi aircraft destroyed since the
allies from the Gulf War decreed a "no fly" zone on August 27,
1992 for Iraqi warplanes south of the 32nd parallel.
The first months of the no-fly zone enforcement were without
confrontation. The American pilots and their British and French
allies flew at least 7,500 unchallenged flights. Statistics available
up to November 23, 1992 listed a total of 7,331 flights. However,
two days after U.S. President Bill Clinton took over, on January
22, 1993, a U.S. F4-G fired at a missile site in northern Iraq, after
its pilot reported that he was being attacked by ground radar.
Later, on February 3, two French F-l Mirage reconnaissance
aircraft were fired upon. On April 10, U.S. warplanes dropped
cluster bombs on an Iraqi military position after they were attacked
by ground artillery while patrolling the no-fly zone in Northern
Iraq. The U.S. fighter planes — three F-16s and an F-46 — were
being tracked by Iraqi radar before they were fired on. In response,
the three F-16s dropped four cluster bombs on the artillery site.
The U.S. planes then returned to Incirlik Air Base in Turkey.
Under Clinton, the U.S. has tried to depersonalize its dispute

with Iraq by no longer insisting in Saddam's removal from power
as a condition for lifting international sanctions. But U.S. State
Secretary Warren Christopher has insisted that this view repre-
sents no softening of Washington's line.
Trade Embargo on Vietnam by the U.S.
The United States, on September 1993, continued its trade

embargo on Vietnam, notwithstanding Vietnamese Foreign Min-
ister's Manh Cam's optimism that said embargo "does not mean it
(embargo) will be lasting another year, but it could be ended
anytime soon."
Cam said moves such as U.S. President Clinton's decision to
clear aid to Vietnam from the International Monetary Fund had
been slow but "will definitely lead to the normalization of relations."
Clinton, for his part, has already relaxed aspects of the embargo,
but he tied further improvements to results in the search for more
than 1,600 U.S. servicemen still listed as missing in action from
America's long war with Hanoi. {Manila Bulletin, "Vietnam Op-
timistic on U.S.," Oct. 9, 1993, p. 4).
U.S. Sanctions Russia

On July 1993, the United States imposed new trade sanc-
tions against Russia to protest Moscow's sale of ballistic missile
technology to India. The sanctions were in addition to those im-
posed in May 1992 against the Russian company Glav Cosmos.
The U.S. State Department said new evidence had been uncovered
prompting the imposition of sanctions "targeted to additional en-
terprises." The U.S. protested Russia's sale of rocket engines to
India for an estimated $350 million, of which so far $80M has been
paid. Washington had wanted Russia to desist from selling believ-
ing the material could be used for military ends. (See The Foreign
Post, "U.S. Imposes New Trade Sanctions Against Russia," Vol. I,
No. 24, July 1-7, 1993, p. 5).
UN Sanctions Vs. South Africa Lifted

The General Assembly lifted economic sanctions against South
Africa on Oct. 8, 1993 and urged all nations to repeal boycott
legislation, saying the transition toward democracy is well under
way.
In a consensus resolution, without a vote or speeches, the
184-nation General Assembly also agreed to lift an oil embargo
once a multiracial transitional council is in place in South Africa.
"We are sending a very strong signal to the people of South Africa
that the international community is ready to assist in economic
reconstruction and ensure that a new South Africa begins without
the economic constraints imposed on the old South Africa," Nige-
rian Ambasador Ibrahim A. Gambari said in introducing the re-
peal resolution. We cannot but recognize this reality of progress
toward democracy and act in consonance with the wishes of the
people."
A N C President Nelson Mandela responded enthusiastically
to the expected move, which he had requested to help rally South
Africa's ailing economy. "That is what we asked for," the African
National Congress leader told reportes. "We are happy indeed that
the world body is going to help and lift sanctions." The action had
more symbolic than real value, since the United States, the Euro-
pean Community, the Organization of African Unity and the Com-
monwealth, among others, already have agreed to lift sanctions. A
mandatory armB embargo, imposed by the Security Council in 1977,
will remain in place, however.
The lifting of sanctions was widely expected after Mandela

apppealed to the General Assembly on Sept. 27, 1983 to end all
economic embargoes, saying, "the countdown to democracy haB
begun." Mandela, whose group is expected to win South Africa's
first multiracial elections on April 27, called for extensive foreign
investment to bolster the transition to democracy and repair the
damage caused by years of sanctions. Since 1961, the General
Assembly has issued a stream of denunciations of apartheid and
numerous calling for voluntary restrictions on trade, oil, finance,
investment, travel and trasportation in South Africa. The purpose
of sanctions was to isolate South Africa and to generate painful
conditions at home and presure so that while government would
dismantle the apartheid system.
General Assembly resolutions, unlike Security Council reso-
lutions, are not legally binding but they carry considerable moral
weight as the expression of will of the international community.
Since 1991, the General Assembly has acknowledged progress in
South Africa and has called for resumption of academic, scientific,
cultural and Bporting links.
Example of collective UN action: the Korean Intervention
Shortly after the end of World War II Korea, formerly be-

longing to Japan, was taken over by the Soviet and the U.S. forces:
the north zone (north of the 38th parallel) was occupied by Russia;
the south zone by the U.S. The two countries were supposed to
cooperate in setting up a "provisional Korean Democratic gov-
ernment" but in view of disagreements on the nature of a "de-
mocracy," trouble began to flare up, till the UN was forced to send
a "Temporary Commission on Korea." In South Korea, free elections
were held, and the General Assembly on December 12,1948 declared
the existence of a lawful government in that region. The Communist
Government in North Korea, supposedly aided by Russia and China
crossed the 38th parallel and began the invasion of South Korea,
which was then possessed of a weak and small army. The Security
Council was faced with a threat to international peace. On June
25, 1950, the Security Council passed a resolution naming the
invasion a breach of the peace, demanded the withdrawal of the
Northern forces to the 38th parallel, and asked all the UN members
to support South Korea. Incidentally, Russia could not exercise its
veto power because its delegate had previosly walked out on Janu-
ary 1, 1950 in protest of the Council's action in refusing to seat
China in the Security Council. It was only on August 1, 1950 that

the Sonet representative resumed. The Council, in recommending
assistance to Korea, called for a unified UN force, under the
command of the United States. Be it noted that the UN did not
directly decide to take action under Art. 42 of the Charter: it
merely made a recommendation.
President H a r r y Truman appointed General Douglas
MacArthur to command the expeditionary forces. (MacArthur was
later succeeded by General Matthew B. Ridgway, who, in turn,
was replaced by General Mark W. Clark). By summer of 1950, 16
nations including the Philippines, had come to the rescue of South
Korea. On February 1, 1951, by a vote of 44 to 7, the General
Assembly passed a resolution declaring the Communist Chinese
Government guilty of aggression in South Korea. In May of the
same year, the Assembly made a recommendation that all coun-
tries put an embargo on the shipment of war materials to North
Korea and to China. By the end of April, 1952, the two sides had
agreed on a ceasefire except on the question of prisoners of war.
By the end of another year, fighting really stopped, the North
Koreans having been driven back close to the original line of the
38th parallel."
More than 40 years later (May 31, 1993), moves have been
initiated by both Koreas to discuss the first inter-Korea summit
and nuclear issues, indeed a bold move possibly leading to unifi-
cation of the two nation-States. Seoul officials have said a top
priority is to resolve the North's nuclear issue. North Korea, a
hard-line Marxist State, announced on Mar. 12, 1993 that it was
withdrawing from the 154-member Nuclear Non-Proliferation
Treaty ( N P T ) , designed to check the spread of nuclear weapons
technology — reinforcing suspicion that it is developing nuclear
46
weapons despite its denials.
(6) war — this is the last forcible means of redress in inter-

national law. The next chapter will be devoted to a discussion of
war, neutrality, and the principle of postlimini.
— Oo —0
" S e e David Coyle. The United Nations, pp. 106-110.

"See The Philippine Star, "Nokor Proposes N e w Dale (or Contact With
South," June 1, 1993, p. 2.
Chapter 13
WAR, NEUTRALITY,
AND POSTLIMINIUM
\oss\ 4 ' V-dLrXs

^ W A R DEFINED
Hugo Grotius posits that war is an armed contest between
1
States. However, even without an armed conflict, war can also
exist when there is an interruption of the pacific relations between y
States, and there is a general contention by forc(j< authorized b ^ /
2
the sovereign. The purpose of war is "to overpower the opponent
3
and to impose upon him the conditions of peace."
Otherwise put, "war" is the conflict among the States carried
to the extreme point by their armed forces. (Quincy Wright, "War,"
Encyclopedia of the Social Sciences). War is a means for achieving
goals in the same way as diplomacy is. However, when diplomacy
fails, a State turns to war, perhaps as the last recourse. (See
David W. Ziegler, War, Peace, and International Politics, 1990).
INTERNATIONAL ATTEMPTS TO OUTLAW WAR

For many centuries, wars have been waged in various parts
of the world, but it is only in recent years that war has been
condemned on an international scale:
(1) The Covenant of the League of Nations* restricted the
right to wage war by laying down procedural checks;
'Grotius, De Jure Belli, 1, p. 1.

''See Commercial Cable Co. v. Burleson (D.C.I, 255 F. 99.
'Kelsen, Principles of International Law, p. 31.
'Arts 10-16.
577
(2) The Kellogg-Briand Pact (known also as the Pact of Paris

or the General Treaty for the Renunciation of War, August 27,
1928 — ratified by 62 States) forbade war as "an instrument of
national policy," but did not abolish it as such. War was, thuB,
implicitly allowed for the following purposes:
(a^se*lf-defense;
( t r f ' t h e enforcement of international (not natioMal)
obligations;
(pK^settlement of conflict between non-members of the
Pact; and between members on the one hand and non-members
of the Pactûpon the other hand;
( d r the castigation of a Member of the Pact which
5
violates its provisions.
(3) The Charter of the UN prohibits war under Art. 2, par.
4 without, however, using the word "war":
"All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity
or political independence of any State, or in any other manner
inconsistent with the purpose of the United Nations."
While "enforcement measures" under the Charter involving
the use of armed forces have technically the character of war," it
is unfair to consider them in exactly the same category of war. For
while war'is generally availed of to secure the interests of an
individual State, "enforcement measures" seek international peace.
The object of the latter is "comparable, in the municipal sphere, to
7
the enforcement of law against the lawbreakers." The rules of war
are applicable to "enforcement measures," otherwise, the ideals of
the UN would be gravely imperilled
^ S T A T E OF WAR DISTINGUISHED FROM A C T OF WAR

A^S£aêj3£war^î sts_when war has been declared, £4Dressly
i
(such as by a declaration of war) or implicitly (as by the commission

of forcible acts with animo belligerendi).* The mere employment of
''See Oppenheim-Lauterpacht, International Law, Vol. 11. pp. 182-183.

'Kelsen, op. cit., p. 47.
'Oppenheim-Lauterpacht, op. cit., p. 224.
"See Stone. Legal Controls of International Conflict, p. 310.
WAR, NEUTRALrTY. AND POSTLTMrNTUM 579
force, however, for the purpose of reprisal, without the intent to

9
create a war, may be deemed an "act of war." Of course, an "act
of war" may generally cause a "State of war."
In the 1987 Philippine Constitution, there is the proviso: "The
Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare
the existence of a State of war." [Art. VI, Sec. 23(1)].
1
NOTE that instead of using the phrase to "declare war,"
another phrase is used. This is to emphasize the fact that what
the country will enter into is a DEFENSIVE war, not one of ag-
gression.
CLASSIFICATION OF WARS
are the contending forces or
fa) jnternational war (between States of the same civi-

lization);
(b) imperial war (between States of different civiliza-
tions);
(c) civf.1 war (between factions in the same State).
(2) According to object:
-4a)—absolute war (the purpose is the extermination or
the unconditional surrender of the enemy); -*
(b) limited war (fought to gain reparation of a par-
ticular injury; to gain recognition of a particular claim; or to
acquire a particular territory or advantage).
(NOTE: Clausewitz points out that there is a tendency — for
all wars, however, limited their original aim, to become absolute
if the belligerents have equal power and equal tenacity.) [NOTE:
Wars of long duration may be divided into campaigns (in one area
under one command for one season) which in turn may be com-
posed of different battles (two or three days) and sieges (longer than
0
battles)).*
"See Moore, A Digest of International Law, Vol. V I I , p. 153.

'"See Encyclopedia Britannica. Vol. 23, p. 322.
[NOTE: In a figurative sense, wars have been divided into

"hot wars" (where there is actual fighting) and "cold ware" (where
the dispute iB usually confined merely to words and arguments on
ideologies but an atmosphere of deadly tension is created: e.g., the
former "cold war" between the Democratic and the Communist
ways of life;) it is said that there is today the existence of a post-
Cold War with the fall of communism in Eastern Europe.)!
(3) According to where the initiative began:
(a) war of aggression;
(b) war of self-defense (or counter-war).
(4) According to the number of combatants or nations in-
volved:
(a) individual war (between two States);
(b) regional war (confined to a geographical region);
(c) world war (where almost all countries are ranged
on either of two sides: e.g., World War I and World War I I ) .
(5) According to the nature and composition of the com-
batants:
(a) guerrilla war, otherwise called unconventional war
(irregular armed forces);
(b) regular war (regular armed forces); and
(c) total war (embraces everybody, including women
and children, in the sense that since they help in economic
development and furnish material and moral support to the
soldiers, some States may regard them as "combatants" and
may find justification for their killings or being the object of
bombings and bombardments).
(6) According to the area of operations:

(a) land warfare;
(b) maritime or fluvial warfare; and
(c) aerial warfare.
PROVISIONS OF THE 1987 CONSTITUTION

ON WAR (AND RELATED PROVISIONS)
(1) The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of inter-
national law as part of the law of the land and adheres to the
WAR, N E U T R A L I T Y , A N D POSTLIMINIUM
policy of peace, equality, justice, freedom, cooperation, and amity

with all nations."
(NOTE: What is renounced is generally a "war of aggression,"
not a "war of self-defense," although even the latter is subject to
the UN Charter.)
(2) The Congress, by a vote of two-thirds of both Houses, in
joint session assembled, voting separately, shall with the concur-
rence of two-thirds of all the members of each House, have the sole
12
power to declare the existence of a State of war.
(3) The prime duty of the Government is to serve and protect
the people. The Government may call upon the people to defend
the State and, in the fulfillment thereof, all citizens may be re-
quired under conditions provided by law, to render personal,
13
military or civil service.
(4) In times of war or other national emergency, the Con-
gress may by law authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy."
(5) The President shall be commander-in-chief of all the armed
forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion. In case of invasion, or rebellion,
when the public Bafety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus, or place
15
the Philippines or any part thereof under martial law.
(6) The privilege, of the writ of habeas corpus shall not be
suspended except in cases of invasion or rebellion when the public
16
safety requires it.
COMl
/ Writ of Habeas Corpus Defined — It is a writ directed to the
person detaining another, commanding him to produce the body of
"Art. II. Sec. 2.

''Art. V I . Sec. 23(1).
"Art. II, Sec- 4.
"Art. V I , Sec. 23(2).
"Art. V I I , Sec. 18.
"Art. H I . Sec. 15.
the prisoner at a designated time and place, with the day and
cause of his capture and detention, to do, to submit to, and receive
whatever the court or judge awarding the writ Bhall consider in
that behalf. It is a high prerogative, common law writ of ancient
origin, the great object of which is the liberation of those who may
11
be imprisoned without sufficient cause. In the case of Nava v.
Gatmaitan,™ then Chief Justice Ricardo Paras said that the writ
was devised as a speedy and effectual remedy to relieve persons
from unlawful restraint, and as the best and only sufficient defense
of persona] freedom, for it secures to a prisoner, the right to have
the cause of hit detention examined and determined by a court of
justice, and to have ascertained ifhe is held under lawful authority.
(NOTE: While a person illegally arrested may be denied the

writ when it is suspended, the officer effecting such illegal arrest
19
may be held liable.)
Query: What is the "war power" of Congress?
ANSWER: The 1987 Philippine Constitution provides that
"The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to
declare the exjstejice-of-e statu of war."'" This power carries with
it the power to use all means calculated to weaken the enemy and
to bring the struggle to a successful conclusioTr-However, consti-
tutional limitations, such as due process and just compensation for
expropriation of private property, remain, fn case of doubt, the
same must be resolved in favor of constitutionality for after all the
21
waging of war is essentially an exercise of police power. The power
does not end with the mere declaration of the existence of a state
of war: it continues until final victory, and necessarily includes the
i2
protection of war and human material from consequent injuries.
^SANCTIONS OF WAR RULES

Violations of the rules of war have the following sanctions:
"Moron. Rules of Court, Vol. I I , p. 449.

'"L-4855, Oct. I I , 1951.
"Griffin u. Wilcox, 21 Ind. 372.
w
A r t . V I , Sec. 23 (1).
" S e e 3 Willoughby. Sec. 1033. 1568-1569.
3i
Hirabayashi r. U.S.. supra.
WAR, N E U T R A L I T Y , AND POSTLIMINIUM
(1) protests lodged by commanders of belligerent forces with

the enemy or with States that have remained neutral;
(2) if the protest are unheeded, war reprisals are often re-
sorted to, usually but not always, in kind (these are usually ille-
2 1
gitimate means of warfare); -
34
(3) compensation and reparation for damages;
(4) punishment for war crimes (crimes against one's own
criminal laws; against the enemy by violating the rules of war;
against humanity and peace.™ In the case of In Re Yamashita, 327,
p. I, a commander was held responsible for the illegal acts of his
subordinates during the war, if they had been committed in pur-
suant to his orders, or if he had not been able to take the proper
steps to suppress such illegal actions. This is the essence of the
theory of "command responsibility."
QUERY
FACTS: X, formerly a Lieutenant-General of the Japanese
Imperial Army and Commanding General of the Japanese Impe-
rial Forces was charged before a Military Commission set up in
virtue of an Executive Order establishing a National War Crimes
Office and prescribing rules and regulations governing the trial of
accused war criminals. X contended that the Military Commission
lacked jurisdiction to try him for acts violative of the Hague and
Geneva Conventions as the Philippines was NOT a signatory of
the first, and aigned the second only in 1947. Moreover, X challenged
the participation of two American attorneys in the prosecution as
violative of our national sovereignty. How would you rule on such
a contention and meet such a challenge?
ANSWER: The Military Commission has jurisdiction despite

the fact that the Philippines was not a signatory to the Hague
Convention, and signed the Geneva Convention only in 1947. Our
18
Constitution states in its Declaration of Principles that "The
Philippines renounces war as an instrument of national policy,
%a
Oppenheim-Lauterpacht, International Law, Vol. I I , p. 561.
"Ibid., p. 696.
"See Chapter of the Nuremberg Tribunal, and the Genocide Convention of
1946.
" A r t . 2. Sac. 3.
adopts the generally accepted principles of international law as

part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations;"
and indubitably, among such accepted principles of international
law, are the rules and regulations of the Hague and Geneva Con-
ventions. Our Constitution has been deliberately general and ex-
tensive in scope, and is not confined to the recognition of rules as
contained in treaties to which the government may have been or
shall be a signatory. The participation of the two American at-
torneys is N O T violative of our national sovereignty. When the
crimes charged against the Lieutenant-General were committed,
the Philippines was under the sovereignty of the United States,
and, thus, we were equally bound together with the United States
and with Japan, to the rights and obligations contained in the
treaties between the two belligerent countries. These rights and
obligations were not erased by our assumption of full sovereignty.
Our emergence as a free State entitles us to enforce the right of
trying and punishing the guilty. This we can do with the active
27
collaboration of our allies and friends in the last war.'
ANOTHER QUERY
Ito Kono was born in Davao in 1913 of a Japanese father and
a Filipino mother. In 1938, he was granted Philippine citizenship by
the CFI (now RTC) of Davao. In February, 1946, he was indicted for
war crimes before a military tribunal duly constituted by the Com-
mander-in-Chief of the U.S. Armed Forces in the Philippines. The
charges are that during the war Kono associated himself with Japan
against the United States in the Philippines; that he committed
atrocities against civilians; and that he looted Filipino property. Kono
questioned the jurisdiction of the United States military tribunal on
the ground that he w a B a Filipino citizen and civilian when he
committed the crimes charged, and, therefore, his case falls within
the exclusive jurisdiction of Philippine courts. Decide.
ANSWER: The United States military tribunal had jurisdic-

tion DESPITE Kono's Philippine citizenship and civilian status
because:
^Kuroda v. Maj. Gen. Jalandoni. et al.. L-2662, March 28. 1949: Yamashita
v. Gen. Styer. G.R. No. L-129, Ex Parte Quirin, 317 U.S. 1. 63 Sup. Cl.. Executive
Order No. 68, establishing a National War Crimes Office, issued by the President
of the Philippines. July 19. 1947.
WAR, N E U T R A L I T Y . AND POSTLIMINIUM 566
(a) at the time of the indictment we were still under

American rule and sovereignty (so his Filipino citizenship is
immaterial);
(b) even civilians can be held liable for war crimes by
a military tribunal.
2
In the case of Kuroda v. Maj. Gen. Jalandoni, * our Supreme
Court held that "in accordance with the generally accepted prin-
ciples of International Law of the present day, including the Hague
Convention, the Geneva Convention, and significant precedents of
international jurisprudence established by the United Nations, all
those persons, M I L I T A R Y or C I V I L I A N , who have been guilty or
planning, preparing, or waging a war of aggression and of the
commission of crimes and ofTenses consequential and incidental
thereto, in violation of the laws and customs of war, of humanity
and civilization, are held accountable therefor."
•-COMFORT WOMEN
At the time that Japan's push for a seat on the UN Security
Council has stalled, anti-Japan bashers are hell-bent on pursuing
to the hilt an investigation by the world body of Japan's war crimes.
At least four Asian Governments (South Korea, the Philippines,
Malaysia, and Indonesia) "cannot fully trust Japan" until it, too,
apologizes to its victims. These victims have included the many
"comfort women" — Japan's euphemism for the women it forced into
prostitution for its troops — that have been holding news conferences
throughout the [Asian] region. (The Asian Wall Street Journal, "Ghost
of War Cloud Japan's Global Status," May 12, 1993, p. 6.)
Take the case of Maria Cora Henson, a Filipina who filed a

lawsuit against Japan together with 17 others demanding com-
pensation: "For 50 years I have been keeping this a secret. 1 de-
cided today to come out in the open and inform you of the abuses
committed against me by the Japanese."
The sensitive issue elicited from the Japanese government a
defensive, if not inept, response. Wrote the The Asian Wall Street
Journal:
"At first, [Japanese] government officials said that though
brothels may have existed, private entrepreneurs were in
"L-2662, March 28, 1949.

charge. Then government said it had found documents prov-

ing army involvement. Officials apologized and promised to
explore compensation. But government still says there lis! no
evidence the women were actually forced to provide sex for
soldiers, hinting that many of them may have been entre-
preneurs themselves.
T h a t has [not] satisfied Japan's Asian neighbors. South

Korea is demanding a more thorough investigation. 'What we
want,' South Korean President Kim Young-Sam Baid, Is for the
Japanese government to investigate honestly and reveal the
truth to both peoples' about the Imperial Army's brothels. That,'
he said, 'will enhance the bilateral relationship between the two
countries.' Philippine President Fidel V. Ramos raised the issue
with officials during a trip to Tokyo in March [1993].
"The Japanese government does not want to face the
war issue,' says Yoshiaki Yoshimi, a history professor, who
has kept the matter alive by digging up new evidence."
BAR
The Japanese government confirmed that during the
Second World War, Filipinas were among those conscripted
as "comfort women" (or prostitutes) for Japanese troops in
various parts of Asia. The Japanese government has accord-
ingly launched a goodwill campaign and has offered the
Philippine government substantial assistance for a program
that will promote thru government and non-government or-
ganizations (NGOs) women's rights, child welfare, nutrition
and family health care. An executive agreement is about to
be signed for that purpose. The agreement includes a clause
whereby the Philippine government acknowledges that any
liability to the "comfort women" or their descendants are
deemed covered by the reparations agreements signed and
implemented immediately after the Second World War. Juliano
Iglesias, a descendant of a now deceased comfort woman,
seeks your legal advice on the validity of the agreement.
Answer: The agreement is valid. The comfort women
and their descendants cannot assert individual claims against
Japan. As stated in Davis and Moore v. Reagan (453 U.S. 654),
the sovereign authority of a State to settle claims of its
nationals against foreign countries has repeatedly been recog-
nized. This may be made without the consent of the nationals
WAR, NEUTRALITY, AND POSTLIMINIUM 587
or even without consultation with them. Since the continued

amity between a State and other countries may require a
satisfactory compromise of mutual claims, the necessary power
to make such compromises has been recognized. The settle-
ment of such claimB may be made by executive agreement.
THE BEGINNING OF THE WAR

Theoretically, wars are begun with a previous and explicit
warning, in the form either (1) of a reasoned declaration of war;
19
or (2) of an ultimatum with a conditional declaration of war. A
declaration of war ends peaceful relations between the States
30
concerned. Upon the other hand, an ultimatum is a final demand
for a clear and categorical reply on proposed concession a negative
31
answer to which would result in the use of force. The UN Charter
prohibits war, so it would seem that this need for a declaration or
an ultimatum is today inapplicable.
Actually, wars are begun by (1) an act of belligerent force
without a previous declaration of war; or by (2) a declaration of
31
war, which must be communicated.
The outbreak of war has the following immediate effects:
(1) Diplomatic, consular, and other non-hostile relations
between the two countries involved are disrupted. The officials
33
involved are permitted to return to their home State. Treaties on
the rules of warfare become immediately effective. Generally, all
intercourse, particularly commercial intercourse between citizens
34
of the belligerents, is prohibited, with some exceptions.
(2) Enemy corporations (those where the controlling stock-
holders are citizens of the enemy State, regardless of the place of
36
incorporation) are not allowed to continue their operations.
" A r t . I, Hague Convention of 1907, re: Opening of Hostilities.

M
Oppenheim-Lauterpacht, International Law, Vol. II, p. 293.
31
See Lawrence, Principles of International Law, p. 454.
"Stone, Legal Controls of International Conflict, p. 310.
"See Wilson, Handbook of International Law, p. 243.
u
See Second Russian Co. v. Miller, Alien Property Custodian, 268 U.S. 552;
See also the British — 1939 — and the U.S. —1941 Trading with the Enemy Acts.
^Filipinos Compania de Seguros v. Christian Huenefeld and Co., Inc.,
L-2294, Hay 2S, 1961 and David Winship v. Philippine Trust Co., L-3869, Jan.
31. 1952.
(3) Enemy persons are usually allowed to leave (unless their

38
leaving would prejudice the State of residence). If they decide to
remain, they may be interned and be provided with food, clothing,
shelter, medical attendance, religious facilities, and be allowed,
37
though in a restricted way, to communicate with foreign States.
(4) Enemy property on land, may be confiscated if owned by
the government; may be requisitioned if owned by private per-
38
sons. Enemy private property on the sea may be confiscated,
generally, and the rule extends to enemy merchant ships, subject
39
to certain exceptions.
PARTICIPANTS IN THE WAR -V

Traditionally, there are two (2) participants in a war: the
non-combatants (like civilian women and children) and the com-
batants (those who fight).
The combatants may be the:
(1) non-privileged combatants (like spies — those who un-
der false pretenses try to obtain vital information from the enemy
ranks, and who, therefore, when caught do not get the privilege of
40
being considered as "prisoners of war") ;
(2) privileged combatants (they are privileged in the sense
that if captured they are not supposed to be executed or convicted,
but are entitled to become "prisoners of war"):
(a) the regular armed forces (army, navy, marine, air);
(b) ancillary services (like doctors or chaplains);
(c) those who accompany the armed forces (like war
correspondents);
(d) levees en masse (spontaneous uprising of the popu-
lace); and
(e) guerrillas (or francs tireurs) provided that they:
1) are under a responsible commander;
^ S e e Oppenheim-LauterpachL, op. cit., p. 306.

"1949 Geneva Convention.
M
S e e Oppeoheim-LauLerpacht, op. cit., pp. 278-279.
^Hague Convention of 1907.
*°See Art. 29, Hague Convention of 1907.
WAR, N E U T R A L I T Y . AND POSTLIMINIUM 589
2) wear a fixed, distinctive emblem; recognizable

at a distance;
3) carry their arms openly; and
4) conduct their operations in accordance with
41
the laws and customs of war.
NOTE: Among the rights and privileges of prisoners of war
are the following:
(1) They must be treated humanely, shall not be subjected
to physical or mental torture, shall be allowed to communicate
with their families, and may receive food, clothing, educational
and religious articles.
(2) They may not be forced to reveal military data except
the name, rank, serial number, army and regimental number, and
date of birth; they may not be compelled to work for military
services.
(3) All their personal belongings except arms, horses, and
military papers, remain their property; they are entitled in certain
cases to be compensated for work done.
(4) They may be interned in a town, fortress, camp, or any
other locality (as long as the place is healthful and hygienic; they
are bound not to go beyond certain limits.)
(5) After the conclusion of peace, their 6peedy repatriation
42
must be accomplished as soon as is practicable.
SOME RULES ON WARFARE

While in general ruses and stratagems of any kind are per-
mitted, it is prohibited:
(1) to employ poison or poisoned arms; to pillage a town or
plare, even when taken by assault; to wound or kill with treachery;
(2) to make improper use of a flag of truce;
(3) to "loot" (articles not having a direct military use: cash,
jewelry, etc.) (to obtain "booty" or articles which can be law-
"Art. 1, Hague Convention of 1907, (respecting, the laws and customs of

war on land): Arte. 4 and 8, Geneva Convention of 1949.
"See the 1949 Geneva Convention on the Treatment of Relatives of War.
fully seized because of their military value, e.g., vehicles, are al-
43
lowed).
(4) to bombard undefended places; to attack by ship or
submarine enemy merchant ships unless a "visitation" has been
refused; to attack ships of a special character or mission, e.g.,
hospital, religious ships; to plant "anchored mine" (unless they
become harmless after they break loose) or "unanchored mine"
(unless they can do harm only within one hour after being re-
leased)."
(5) to bomb undefended or "open cities'"(those declared as
such — open to the free entry to the invaders or the enemy — and,
therefore, U N D E F E N D E D from any front) to deliberately bomb
s
civilians. *
/ WAR CRIME' DEFINED

A war crime "is any act for which soldiers or other individuals
may be punished by the enemy on capture of the offender." (Gerhard
von Glahn, Law Among Nations: An Introduction to Public In-
ternational Law [1992 ed.], p. 870).
The category is two-pronged so as to include:
First, acts committed in violation of international law and
the laws of the criminal's own country; and
Second, acts in violation of the laws of war and undertaken
by order and in the interest of the criminal's own State.
WHO IS DEEMED A 'WAR CRIMINAL'?

According to Prof, von Glahn, "any person, whether a civilian
or a member of a State's armed forces, who commits an act that
violates a rule of the international law governing armed conflicts
is responsible for his act and is liable to punishment as a war
7
criminal. '
" A r t s . 16-17, Geneva Convention of 1949.

"See the London Naoal Treaty of 1930; Hague Convention-of 1907.
" S e e Art. 25, Hague Convention of 1907.
WAR, NEUTRALITY, A N D POSTLIMINIUM 591
MAJOR KINDS OF WAR CRIMES

There at least four (4) kinds of war crimes, to wit:
1. violations of the rules governing warfare
2. hostile armed acts committed by persons who are not
members of recognized armed forces
3. espionage, sabotage, and war treason
4. all marauding acts (G. von Glahn, Law Among Nations:
An Introduction to Public International Law [1992 ed.], p. 871).
SOME ACTS CONSTITUTING WAR CRIMES
1. using poisoned or otherwise forbidden arms or munitions

2. treachery in asking for quarter or simulating sickness
or wounds
3. maltreating corpses
4. firing on localities that are undefended and without
military significance
5. abusing or firing on a flag of truce
6. misusing the Red Cross or similar emblems
7. troops wearing civilian clothes to conceal their identity
during the commission of combat acts
8. improperly using privileged (exempt, immune) buildings
for military purposes
9. poisoning streams or wells
10. pillaging (i.e., plundering or booting spoils found in a
war)
11. committing purposeless destruction
12. compelling prisoners of war to engage in prohibited types
of labor
13. violating surrender terms
14. killing or wounding military personnel who have laid
down arms, surrendered, or are disabled by wounds or sickness
15. assassinating and hiring assassins
16. ill-treating prisoners of war or the wounded and sick,

including despoiling them of possessions not classificable as public
property
17. killing or attacking harmless civilians
18. compelling the inhabitants of occupied enemy territory
to furnish information about the armed forces of the enemy or his
means of defense
19. appropriating or destroying the contents of privileged
buildings
20. bombarding from the air for the exclusive purpose of
terrorizing or attacking civilian populations.
21. attacking enemy vessels that have indicated their sur-
render by lowering their flag
22. attacking or seizing hospitals and all other violations of
the Hague Convention for the Adaptation to Maritime Warfare of
the Principles of the Geneva Convention
23. committing unjustified destruction of enemy prizes
24. using of enemy uniforms during combat and using the
enemy flag during attack by a belligerent vessel
25. attacking individuals supplied with safe-conducts, and
other violations of special safeguards provided
26. breaking parole
27. destroying civilian cultural objects and places of warships
(unless true military necessity demands it)
28. conspiring, directly inciting, and attempting to commit, as
well as complicity in the commission of crimes against laws of war
29. taking hostages
30. killing hostages
31. grave breaches of Article 50 of the 1949 Geneva Con-

vention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field and of Article 51 or the 1949
Geneva Convention Applicable to Armed Forces at Sea: "willful
killing, torture or inhuman treatment, including biological experi-
ments, willfully causing great suffering or serious injury to body
or health, and extensive destruction and appropriation of property
WAR, NEUTRALITY, AND POSTLIMINIUM
not justified by military necessity and carried out unlawfully and

want only"
32. grave breaches of the 1949 Geneva Convention Relative
to the Treatment of Prisoners of War, as listed in Article 130:
"willful killing, torture or inhuman treatment, including biological
experiments, willfully causing great suffering or serious injury to
body or health, compelling a prisoner of war to serve in the focus
of the hostile Power, or willfully depriving a prisoner of war of the
rights of fair and regular trial prescribed" in the convention
33. grave breaches of the Fourth Geneva Convention of 1949,
as detailed in Article 147: "willful killing, torture or inhuman
treatment, including biological experiments, willfully causing great
suffering or serious injury to body or health, unlawful deportation
or transfer or unlawful confinement of a protected person, com-
pelling a protected person to serve in the forces of a hostile Power,
or willfully depriving a protected person of the rights of fair and
regular trial prescribed in the present Convention, taking of
hostages and extensive destruction and appropriation of property,
not justified by military necessity and carried out unlawfully and
want only"
34. forcing civilians to perform prohibited labor [e.g., the
use of so-called "comfort women" by the Japanese forces in WW
III-
QUERY
In time of war, what is the act of the enemy termed as
FORAGING?
ANSWER: Foraging, in wartime, is the actual taking of pro-
visions Tor men and animals by the occupation troops themselves
in cases where lack of time makes it inconvenient to obtain sup-
plies by the usual or ordinary methods. Compensation must, of
46
course, be made at the end of the war.
IRAQ'S INVASION OF KUWAIT

The war that should not have happened actually happened.
From the very beginning, it was bound to end with great loss to
'"Sec Wilson end Tucker, International Law, p. 265.

the aggressor. Nevertheless, it was a senselesB, futile, a n d bloody

holocaust. Actually, t h e w a r h a d a simple beginning. Iraq invaded
Kuwait with the precise intent of annexing it on the theory that
a long, long time ago the latter wae part of Iraq (formerly known
as Babylon, later Mesopotamia). Even his Holiness Pope John Paul
II showed his displeasure by condemning Iraq's invasion of Kuwait
as a gross violation of international law.
The only megapower, the United States of America, entered
the scenario together with many members of the United Nations
to make effective the purposes and principles of the United Nations
to make effective the purposes and principles of the United Nations
Organization. For that matter, a principal UN organ, the Security
Council, has the "primary responsibility for the maintenance of
international peace and security." Concomitantly, the Council's
discharge of this responsibility that includes resort to other au-
thorized measures may refer to "such action by air, sea, and land
forces as may be necessary to maintain peace and security."
Philippine Supreme Court Associate Justice Florentino P.

Feliciano, a lecturer of the Hague Academy of International Law,
in his article, Process and Culture in Development Negotiations:
The Management of Consent, writes: "Modern international rela-
tions are carried on by a large variety of strategies and specific
measures. Upon examination, all these measures or courses of
action, from the most comprehensive and strategic to the most
detailed and tactical, will be seen to embody elements of consent
and coercion, in varying degrees and different combinations. For
purposes of historical inquiry and analysis, it may be useful to
think in terms of a pole of pure consent at one end of a pole of pure
coercion or naked exercise of force at the other end, and of a
continuum in between. Most specific historical acts or measures or
transactions may be located somewhere in that continuum: some
will be closer to the one rather than to the other pole. Only in-
frequently, if at all, will particular acts tend to exemplify consent
or coercion with proto-typical purity."
Dr. Feliciano, also a director of the International Develop-

ment Law Institute, avers further: "As might be suspected, the
consent-coercion continuum in the relations between sovereign
politics finds some recognition in the structure of public interna-
tional law. The law of treaties and other international agreements
addresses issues raised by relationships exhibiting in dominant
degree the element of consent freely given. The law on armed
WAR, NEUTRALTrY, AND POSTLIMINIUM
conflict, earlier called the law of war, seeks to regulate and mitigate
relationships characterized by the mutual, systematic and relatively
extensive and prolonged applications of military force, ordinarily
regarded as the most intense form of coercion. Disputes where the
parties invoke much less intense forms of coercion as intruments
of policy are dealt with under the rubrics of international delin-
quencies or torts and the international responsibility of States."
The use of force by the U.S.-led Allied Forces was justified as
the principal collective enforcement action stipulated in the UN
Charter. Thus, the use of force here is akin to the force used by
a policeman not to perpetrate a crime but precisely to put an end
to it. Disputes, conflicts, and the like inevitably lead to "war," a
classic term defined by Karl Von Clausewitz as "the extension of
politics by other means." The politics and economics of oil made
the Gulf War inevitable. Intones Philippines Free Press editor-in-
chief Teodoro M. Locsin: "It was $16 per barrel before Saddam
Hussein's Iraq seized Kuwait's oil wells. He had gone to war against
a fellow-Muslim State, Iran, for eight years — shelling, bombing,
gassing Iranian men, women, and children. Bankrupted by the
unsuccessful war, he invaded Kuwait [another Muslim neighbor]
to bail himself out of his foreign debts — by increasing Iraq's
supply and price of oil." Indignant (i.e., justified anger), the U.S.
and its allies in representation of the UN forces declared war on
Saddam's Iraq. "The Mother of all battles," Saddam dubbed the
final showdown between his forces and the U.S.-Allies.
"Bombardment, speed and surprise. Air attacks, having

severed communications," opined Louise Molina, contributed im-
mensely to the Operation Desert Storm victory. For one has to take
into account here the strategy of combining air power and ground
operations under a single command, indeed a decisive factor in the
rout of the Iraqi army. The strategy applied is the so-called "Air
Land Battle Doctrine." This doctrine relies on engaging enemy
forces deep behind the front line and combines conventional and
electronic warfare, making use of high technology weapons and air
mobility. As a historical footnote, the AirLand battle scene origi-
nally was designed to deal with the Soviet Union's superior number
of troops and hardware and was a perfect vehicle for the Gulf War.
Iraq's millionman army outnumbered the allied forces 3-2, and its
4,700 tanks compared with 3,500 for the allies.
As a necessary consequence, the only thing that needs to be
done is to bring Saddam Hussein to trial for his crimes, all violative
of the Nuremberg rules as well as other customary and conven-

tional crimes. With crimes committed ranging from waging a war
of aggression, bombing and murdering innocent civilians, mal-
treating prisoners of war, supporting terrorism, and creating en-
vironmental havoc, there is, fortuitously, an existing mechanism
for a Nuremberg-type tribunal. Alan Derhowitz, writing for the
United Feature Syndicate, said: T h e Nuremberg Court was es-
tablished by the victorious allies in World War I I . It disbanded
after it sentenced the convinced war criminals. Its decisions serve
as a substantive precedent, but without an enforcement mechanism.
[Moreover,] the rules established by the Nuremberg Court have
never been applied to any war criminal since the immediate post-
World War II period. Nor has that been because of the absence of
war crimes and crimes against humanity." Since international law,
Dershowitz enthuses, is as much a matter of customs as it is of
statutes, there is a need to build a stronger, deeper, and more
neutral foundation for international law before it can be selectively
invoked against defeated enemies. Saddam Hussein, adds
Dershowitz, will probably be caught and brought to "justice" by his
own people, and in this respect, it becomes poetic.
One nagging question: Why was the Iraqi-Kuwait confict called

a "Gulf" war? The dictionary defines a gulf as a part of an ocean
or sea extending into the land, i.e., a partially landlocked sea that
is usually larger than a bay. In the 1991 battle royale, the pro-
tagonists bordered the Gulf. But actually, the "war" on the sea
was very minimal. Now that the elusive peace has at long last
come, we can paraphrase the characteristic language of Shake-
speare: "Oil's well that ends well."
l^r+NTENSfTYCONI*^
According to U.S. General Carl Stiner, head of the American

Special Operations Command: "In a world marked by conflicting
political, social, and economic systems, there will always be those
who consider their interests at odds with the United States." And
LIC (Low-Intensity Conflict) is one way to deal with those whose
"interest are at odds" with the U.S.
How is LIC denned? The United States military defines LIC
as a "political-military confrontation between contending States or
groups below conventional war and above the routine, peaceful
competition among States . . . waged by a combination of means
WAR, N E U T R A L I T Y , AND POSTLIMINIUM 597
employing political, economic, informational and military instru-

ments. Low intensity conflicts are often localized, generally in the
Third World, but contain regional and global security implications."
Some of the LIC tactics employed in specific special operations,
include inter alia:
(1) dropping high-tech parachutes to drift thru the night
sky and report on enemy positions.
(2) disabling communications towers and water wellB.
(3) using lasers to target Scud missile launchers and tank
emplacements for air attack.
(4) placing explosive charges on bridges to cut off the enemy's
avenues of retreat.
Acording to David Isenberg, a senior research analyst at the
Centre for Defense Information in Washington, D.C. specializing
in U.S.-Third World military affairs, "Policy-makers who hesitate
to deploy regular military forces see special forces as the ideal
response to insurgencies, terrorist actons, and hostage taking."
Thus, in his Shoe* Troops Meet Post-Cold War Threats (cited
in Manila Bulletin, Dec. 14, 1992, pp. 11, S - l l ) , Isenberg wrote:
"Long before the term special operations existed, U.S.
military forces were intervening in "low-intensity conflicts"
and were carrying them out as well. U.S. Marines did so
during 1801-07 in the war against the Barbary pirates. As
U.S. economic interests expanded worldwide in the late 19th
and early 20th centuries, so did the interventionary use of
the Marines.
"Since 1985, the Marine Corps have had what they call
the marine Expeditionary Unit/Special Operations Capable,
or M E U (SOC). Six of these units, two of which are special
operations capable, rotate on routine deployments to the
Mediterranean and the Pacific Rim. In 1988 they saw combat
in the Persian Gulf, attacking Iranian oil rigs and landing on
suspected mine-laying ships. A typical M E U contains about
2,500 Marines and sailors trained to carry out some 18 specific
missions, from non-combatant evacuations operations (such
as Liberia in 1990) to training foreign military forces. The
war against Iraq was hardly the first time for U.S. special
forces in the Middle East or the Persian Gulf. When T W A
INTERNATIONAL LAW AND WORLD POIJTIC8
flight 647 w a s hijacked in 1966, the Army's Delta Force w a s

flown to Europe to await an opportunity to launch a rescue
attempt. Three months later, when the Achille Laura w a s
taken over by renegade Palestinian fighters, Delta Force and
the SEAL team prepared for a rescue attempt, and SEALS
participated in the subsequent capture of some hijackers when
their plane waB intercepted. In 1987 the Army's special op-
erations helicopter unit, Task Force 160, deployed secretly
from Fort Campbell, Kentucky, to the Persian Gulf as part of
the reflagging operations of the Kuwaiti oil tankers. They
played a key role in attacking the Iranian oil platforms being
used as launch sites for attacks on the tankers. SOF personnel
conducted many missions in the 1989 U.S. invasion of Panama.
That turned out to be only a warm-up for what was to come.
The U.S. military buildup in the Middle East after Iraq'B
invasion of Kuwait included nearly 10,000 special operations
forces — the largest deployment of special forces in history.
Among the first units to deploy to Saudi Arabia in August
1991, they carried out missions before, during and after the
war, and included special forces from the Army, Air Force
and Navy, and Psychological Operations ( P S Y O P S ) and Civil
Affairs units.
"A Navy SEAL team secretly boarded a freighter in-

tercepted by the U.S. Navy in mid-August and infiltrated
Kuwait to protect the U.S. embassy. One unconfirmed report
asserts that coalition special forces tried but failed to capture
a Soviet adviser to the Iraqi Army during the war. Members
of the Air Force's 1st Special Operations Wing dropped the
massive Vietnam-era 15,000 pound BLU-82 bombs, killing
large numbers of Iraqi soldiers and inducing others to desert
or surrender. The use of BLU-82 bombs was considered a
psychological as well as an offensive operation, and was
followed by drops of 29 million safe-passage leaflets and
broadcast from an 18-hour-a-day Voice of the Gulf radio
station. In one case, an entire Iraqi battalion surrendered to
a U.S. helicopter patrol after the PSYOPS team braodcast
that 'death from above' was imminent. On the final day of the
war, the Iraqis had moved 26 Scud missiles near their western
border for a saturation attack on Israel. Members of the USA
Delta Force, along with British SAS commandos and regular
U.S. Air Force personnel, destroyed them. Military planners
expect special forces to play a role in literally all possible
WAR, NEUTRALITY, A N D POSTLIMINIUM
future conflicts. They no doubt will play a greater role in the

Middle East, especially in intelligence gathering aB [the U.S.]
Congress moves to reshape the intelligence establishement.
Covert operations traditionally conducted by the CIA may be
assigned to special forces. British air station RAF Alconbury
will be a command and operations center for U.S. airborn
special forces."
As the "golden boys" of the United States national security

establishment, special operations budgets of these U.S special
forces have not taken cuts along with the rest of the military
services. In Fiscal Year 1991, the Special Operations Command
received nearly $2.5 billion. In FY 1992, it rose to over $3.1 billion,
and the FY 1993 request, was nearly $3 billion.
RESTRICTING THE USE OF CONVENTIONAL WEAPONS
Meeting under the auspices of the United Nations ( U N ) in

Geneva on Oct. 10, 1980, 76 nation-States formally approved a
treaty restricting the use of certain conventional weapons.
Armed with the intention of protecting civilian populations
and, to a certain extent, combatants, against conventional weap-
ons perceived to be particularly inhumane or perfidious, the "Con-
vention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively
Injurious or to Have Indiscriminate Effects," has embodied three
protocols that restrict certain exploding fragment weapons, mines,
booby traps and other remotely-controlled devices, and incendiary
weapons.
The Protocol on Non-Detectable Fragments (Protocol I) pro-

hibits the use of any weapon the primary effect of which iB to
injure by fragments which in the human body escape detection by
x-rayB.
The Protocol on Prohibitions or Restrictions on the Use of

Mines, Booby Traps, and other Devices (Protocol I I ) applies to
weapons used in land-warfare only, which includes within that
category beaches, water-way crossings, and the river crossings. It
prohibits the use of mines, booby traps, and certain other devices
against civilians, a n d any "indiscriminate use." (Indiscriminate
use is defined by the treaty as "any use not specifically directed
against military objectives, or when directed against military ob-
jectives, use which predictably may cause injuries to civilians and

civilian objects excessive in relation to any military advantage
anticipated).
The treaty protects civilians and anyone involved in hu-
manitarian efforts by prohibiting the use of any booby-traps
manufactured to look like harmless portable objects, and by
specifying certain objects to which booby-traps may not be attached
and locatioins which may not be implanted with booby-traps.
(Among the objects to which attaching booby-traps is strictly
prohibited are medical supplies and equipment, children's toys,
food and drink, etc.; booby-traps may not be interred at gravesites,
places of worship, or historic monuments). It also generally bans
any booby-trap which is designed to cause superfluous injury or
unnecessary suffering.
The Protocol on Prohibitions or Restrictions on the Use of

Incendiary Weapons (Protocol I I I ) consist of two articles. Among
the definitions in Art. 1 is one of "incendiary weapons" which is
notable for what it excludes, i.e., any reference to napalm or the
particular for what it excludes, i.e., any reference to napalm or the
particular class to which napalm belongs, "flame weapons." Art. 2
prohibits making civilians the target of any attack by incendiary
weapons.
Be it noted that the Convention should not be interpreted as

detracting from other obligations imposed by the international
humanitarian law applicable in armed conflict. For that matter,
there are essentially two (2) bodies of law applicable to armed
conflict, to wit: (1) the law of the Hague; and (2) the law of Geneva.
The law of the Hague restricts the means and methods of
warfare. It includes: (a) the St. Petersburg Declaration of 1868,
prohibiting the use of exploding bullets; (b) the Hague Convention
of 1899, revised in 1907, prohibiting, inter alia, the use of "dum-
dum" bullets; and (c) the Geneva Protocol of 1925, banning noxious
gas, and bacteriological warfare. Moreover, the law of the Hague
protects combatants against inhuman methods which were char-
acterized at an early date as those causing unnecessary suffering
at having indiscriminate effects and has been negotiated from a
primarily military point of view.
Upon the other hand, the law of Geneva is intended to protect

non-combatants, including military personnel who have been re-
moved from the theater of war either thru captivity or injury. It
WAR, N E U T R A L I T Y , AND POSTLIMINIUM 001
establishes broad humanitarian principles to limit harm to non-

combatants.
Going back to the 1980 Convention, suffice it to say that its
effort in combining the approaches of the laws of the Hague and
Geneva to restricting the use of specific weapons against civilians,
might lead to a military assumption that the use of other weapons
against civilians iB acceptable, despite the law of Geneva.
LAW OF WAR REVISITED

It is a sad reality that the law (or laws) of war is always
unfair to the civilian population. To correct this inequity, a Pro-
tocol (i.e., Protocol I) dealing with international armed conflicts
has been put in place aimed to improve the protection available to
the victims of armed conflicts. (Note that this is a Protocol to the
four Geneva Conventions of 1949 in the Prevention of War Victims).
Two (2) subject areas of this Protocol are: (1) bombardment;
and (2) emergence of the mercenaries (to be discussed in the next
sub-topic).
Anyone familiar with the strategic bombing campaigns of
World War II and a recent vintage, the Gulf war of 1991, should
take cognizance of Article 51 of the Protocol prohibiting target
area bombardment in cities.
Article 51 prohibits indiscriminate attacks and defines them
as: (a) those which are not directed at a specific military objective,
i.e., where the attacker does not take aim, but fires wildly; (b)
those which employ a method or means of conduct which cannot
be directed at a specific military objective, i.e., an unguidable or
uncontrollable weapon, a weapon that may not exist; or (c) those
which employ a method or means of combat, the effects of which
cannot be limited as required by this Protocol. Said article in
question goes on to add an example of attack by bombardment by
any methods or means which treats as a single military objective
a number of clearly separated and distinct military objectives lo-
cated in a city, town, village or other area containing a similar
concentration of civilians or civilian objects.
The term "bombardment," while clearly understood to mean
bombardment by artillery as well as by air, the meaning of'clearly
separated and distinct' is far less certain. There is aome negotiating
history to indicate that a significant distance between objectives
should be required. ThiB means that if the objectives are sufficiently

separated so that they can feasibly be attacked separately with
the weapons IB evident to the attacker, then they must be attacked
separately in order to reduce the risks to the civilian population.
It is believed that a bombardment could violate this rule while not
violating the rule of proportionality, although in practice, there
might be few instances in which the rule of proportionality was
not also violated. Perhaps the most significant contribution made
by the target area bombardment provision of Art. 51 is its greater
objectivity, i.e., that it may be easier for a commander to determine
whether he can feasibly attack several objectives separately than
to determine whether an attack would violate the proportionality
rule.
George H. Aldrich, an ambassador of the U.S. Department of

State, has made an observation on the issue of bombardment in
this wise:
"In the context of strategic nuclear warfare, targets would
have to be very widely spaced indeed to permit their being
attacked separately. Since the military objective in such cases
is likely to be a broad manufacturing, transportation, and
communication complex, the application of this rule to nuclear
warfare would probably offer little guidance. In this con-
nection, it should be noted that, when signing Protocol I, the
United States made its signature subject to the understanding
that the rules established by this protocol were not intended
to have any effect on and do not regulate or prohibit the use
of nuclear weapons.
"In fact, the statement of understanding was not

prompted by the rule on target area bombardment, but rather
by the rule on the protection of the natural environment; but
the understanding would also serve to rebut any allegations
that the former rule, to the extent that it expands the pre-
existing restrictions on bombardment, would affect the tar-
geting and the use of nuclear weapons by the United States.
While it might seem hypocritical to suggest that Protocol I
restricts target area bombardment in cities by means of
conventional weapons but not means of nuclear weapons, the
fact is that the (Geneva) conference, from its beginning in
1974 thru the final adoption of the Protocol, operated on the
understanding that the new rules it was developing would
not deal with nuclear weapons and their effects.
WAR, NEUTRALITY. AND POSTLIMINIUM 603
"It was widely thought that the rules designed to be

compatible with the use of nuclear weapons would have little
restraining effect on conventional warfare, and with it was
accepted that efforts to restrict warfare with conventional
weapons for the purpose of improving protection of civilians
should move forward even if restrictions on the use of nuclear
weapons could not be adopted. It is difficult to quarrel with
that judgment, particularly as wars continue to be fought
.with conventional weapons, while the use of nuclear weapons
happily has been avoided since 1945."
MERCENARIES
Relative to the law of war is the topic on mercenarJesÂrticle
47 of Protocol I dealing with international armed coruTicts, pro-
vides that "a mercenary shall not have the right to be a combatant
or a prisoner of war." However, this exception is more apparent
than real because the definition of "mercenary" is carefully designed
to ensure that only true mercenaries are covered and that the
provision cannot be misused to deny combatant and POW (Prisoner-
of-War) status to any other persons.
Three factors are considered vital: First, the provision re-
quires that, to be a mercenary, a person must be specially recruited
in order to fight in an armed conflict, i.e., as a combatant, not
merely as an adviser, and for a particular armed confict, not simply
to be available for any conflicts that may come along. Second, it
provides that a person cannot be a mercenary unless and until he
"does, in fact, take a direct part in the hostilities," so even a
mercenary is not a mercenary until he goes into combat. Third, it
is specified that to be a mercenary, a person must be motivated
"essentially by the desire for private gain and, in fact, is promised
material compensation substantially in excess of that promised or
paid to combatants of similar ranks and functions in the armed
forces of that party." This standard requires proof both of motive
and of the fact of promised compensation that is significantly higher
than that of others who have similar responsibility and perform
similar functions. Thus, fighter pilots, for example, can be paid
much more than infantry, provided all pilots of equal rank receive
roughly the same pay and that much higher pay is not given to
certain "specially recruited" pilot.
To ensure that even these strict standards cannot be misused

to label a legitimate soldier a mercenary, Article 47 goes on to say
that certain additional categories of persons cannot be considered

mercenaries, i.e., nationals of any party to the conflict, a member
of the armed forces of any State not involved in the conflict who
has been sent on official duty by that State. Certainly, there have
been persons in recent conflicts, who might qualify as mercenaries
under the text, but it would not seem difficult in the future for any
party to a conflict to avoid its impact, most easily by making the
persons involved members of its armed forces. While the negotia-
tors of this provision were definitely aware of the possibilities for
evasion, they were more concerned about the risks of abuse, i.e.,
the denial of P O W status thru charges that prisoners were mer-
cenaries.
BELLIGERENT OCCUPATION AS DISTINGUISHED

FROM MILITARY OCCUPATION
"Belligerent occupation" is the temporary military occupation
of the enemy's territory D U R I N G the war; the rights and obliga-
tions of the "belligerent occupants" are governed by the principles
of international law. Upon the other hand, "military occupation"
takes place, when the victor takes aver enemy territory AFTER
the conclusion of the war; the rights and obligations of the "mili-
tary occupants" are generally premised on the provisions of an
agreement or treaty on the matter. The Japanese occupation of
the Philippines during the last Pacific War is an example of "bel-
ligerent occupation;" upon the other hand, the occupation of Ger-
many and Japan by the Allied Powers at the end of World War II
exemplifies "military occupation."
T a n Se Chiong v. Director of Posts

L-5920, June 25, 1955
FACTS: Quiuan, Samar, Philippines was occupied by
the Japanese forces, which later fell in July, 1942. In their
absence, guerrilla Filipino forces assumed control until 1944,
when the invaders returned. During the intervening period,
should we consider the place as one under effective belliger-
ent occupation by the enemy?
HELD: Yes. Like possession in civil law, belligerent oc-
cupation does not require that the occupant should have its
feet continuously planted on every square foot of territory —
provided it maintains effective control and military superior-
ity therein, being able to send in case of attack, sufficient

forces to assert its authority within a reasonable time. As a
matter of fact, the guerilla forces in the region were not able
to prevent the return of the Japanese Forces. Let it be borne
in mind that enemy occupation of a particular territory is a
question of fact. Mere temporary withdrawal does not, make
the place "unoccupied territory."
OBJECTIVES OF BELLIGERENT OCCUPATION

The Law of Nations acknowledges that the belligerent occu-
pant has for its principal object the security, support, efficiency,
and success of its own forces in a hostile land inhabited by the
47
nationals of the enemy. To attend to the unhindered prosecution
48 49
of the war, he has to weaken the enemy. He has to provide for
peace and order in the rear of his armies; he has provide for peace
and order in the rear of his armies; he has to systematize the
development of the resources of the occupied land so that he may
50
utilize said resources. American courts hold that during the oc-
cupation, the sovereignty of the de jure government or the gov-
ernment in exile in suspended.™ The theory of suspended sover-
eignty stated in the case of U.S. v. Rice (4 U.S. 246) is a reitera-
61
tion of the doctrine in U.S. v. Hayward, also penned by Justice
Story; the theory was maintained in the case8, inter alia, of Fleming
f. Page, Shanks v. Dupont, Thirty Hogsheads of Sugar v. Boyle,
3
U.S. v. Reiter,* the theory was embodied in the Hague Regula-
tions of 1907, and has been adopted by Hyde (1945), Hackworth
(1940), Colby (1926), Oppenheim (1944), McNair (1944), and
Wheaton (1945). However in the Philippine case of Anastacio Laurel
v. Eriberto Aiisa, L-409, 44 O.G. 1176, the Philippine Supreme
Court held that it was not the sovereignty of the legitimate gov-
ernment that was suspended but merely the ability to exercise that
sovereignty.
"Hyde, International Law. Vol. Ill, Sec. 690.

"Peralta u. Director of Prison*. L-49. Nov. 12. 1945.
"New Orleans v. Steamship Co., 20 Wall, 187.
"Colby, Col. Law Review, Vol. XXVI, p. 162.
s
'Mr. Justice Story, a peaking of the British control or the port of Castine,
Maine in the caae of U.S. v. Rice, 4 U.S. 246.
"26 Fed. Caan 240.
"27 Fed. Cases 773.
U.S. v. Rice
4 U.S. 246
FACTS: During the U.S.-English War of 1812, the port

of Caetine, Maine was occupied by the English belligerent
forces, till the ratification of the peace treaty in 1815. During
that period of occupation, civil and military government was
established, and taxes were collected, by the British Govern-
ment. Now then, certain imported goods had been introduced
to the port, without paying taxes to the U.S. Government. At
the close of the war, the place was by treaty restored to the
United States, and after that had been done, the U.S. Gov-
ernment sought to recover from the importers (who had made
the introduction thereof during the British occupation) duties
thereon allegedly due the U.S. Government. The U.S. claim
was predicated on the premise that its law had always been
in force in Castine, although the place was at the time held
by British forces in hostility to the United States, and U.S.
laws could not then be enforced.
ISSUE: Should the duties be paid?
HELD: The claim for duties cannot be sustained. The

sovereignty of the United States over the territory was SUS-
PENDED and the laws of the United States could no longer
be rightfully enforced there, or be obligatory upon the inhab-
itants who remained and submitted to the conquerors. By the
surrender, the inhabitants were under T E M P O R A R Y alle-
giance to the British Government, and were bound by such
laws, and such only, as it chose to recognize and impose.
From the nature of the case, no other laws could be obliga-
tory upon them for where there is no protection or allegiance
or sovereignty, there can be no claim to obedience.
[NOTE: In the case of U.S. v. Reiter, 27 Fed. Cas. p. 773,

Judge Peabody judicially commented on the Rice decision in
the following words: "It (the Rice decision) was asserted by
the Supreme Court of the United States with entire unanim-
ity, the great and venerated Marshall presiding, and the
erudite and accomplished Story delivering the opinion of the
Court that such is the law, and it is so adjudged that no other
laws could be obligatory."]
WAR. NEUTRALITY, A N D POSTLIMINIUM 607
Anaatacio Laurel v. Eriberto Miaa

L-409, 44 O.G. 1176
FACTS: Anastacio Laurel, a detainee for alleged col-
laboration with the enemy during the Japanese occupation,
petitioned for a writ of habeas corpus, alleging that Art. 114
of the Revised Penal Code (re treason) could not be applied to
him for MB actuations during the occupation because at that
time the sovereignty of the legitimate government of the
Philippines had been suspended, and consequently, the cor-
relative allegiance of Filipino citizens thereto was also sus-
pended.
HELD: The sovereignty of the legitimate government of
the Philippines was NEVER SUSPENDED; what was only
suspended was the exercise of that sovereignty. Therefore,
throughout the period of belligerent occupation, the allegiance
of the Filipinos to the legitimate government was NEVER
S U S P E N D E D . There is no such thing as SUSPENDED
ALLEGIANCE. A citizen or subject owes, not a qualified and
temporary, but an absolute and permanent allegiance which
consists in the obligation of fidelity and obedience to his
government or sovereign. This absolute and permanent alle-
giance should not be confused with the qualified and tempo-
rary allegiance which a foreigner owes to the government or
sovereign of the territory where he resides, so long as he
remains there, in return for the protection he receives, and
which consists in the obedience to the laws of the government
or sovereignty.
RIGHTS OF THE BELLIGERENT OCCUPANT

The belligerent occupant has the right:
(1) to reestablish or continue the processes of orderly gov-
ernment: to enact necessary legislation, and even penal laws,
provided they are not ex post facto in character." The commander
of the occupying forces may be regarded as the supreme legisla-
tive, executive, and judicial authority, with powers limited only by
laws and customs of war, and directives from higher authority. He
may supervise distribution of food and other supplies, control prices,
" A r u . 64 and 66, Geneva Convention of 1949.

and prevent both hoarding and the existence of black markets.

(Tan Tuan u. Lucena Food Control Board, 84 Phil. 687). The im-
position of the death penalty is, however, restricted to certain
5
offense, e.g., espionage and deliberate homicide. *
(2) to take measures for the protection of the inhabitants,
to shield them from torture and brutal treatment, to minimize
5
unemployment. (In no case should hostages be taken). *
(3) to requisition goods (with proper cash or future payment)
and services in non-military projects (in no instance is conscription
57
allowed.)
(4) to demand taxes and contributions (over and above the
5
taxes) to finance military and local administration needs. "
(5) to issue legal currency, both for the preservation of peace
and order, and for military needs (but the currency ought not to
59
be debased.)
60
(6) to use enemy property (whether public or private), but
with respect to private property, a returning or indemnification
must be made. While seizure may be allowed, confiscation (i.e.,
without indemnification at the end of the war) is prohibited. (See
Republic v. Lara, 96 Phil. 170). Religious or properties for chari-
table use are in the category here of private properties. (Banaag
v. Encarnacion, 83 Phil. 325).
ANGARY
This refers to the right of a belligerent State — in cases of
urgent necessity — to destroy or use neutral property on its own
or enemy's territory or on the high Bees. The right of angary, which
is a kind of wartime embargo, extends in particular to neutral
vessels and other means of transportation.
^See Arts. 67-70. Geneva Convention of 1949.

M
A r t e . 27-34; 52-59. Geneva Convention of 1949.
"Arts. 51, 55, 57. Geneva Convention of 1949.
"Arts. 46, 49, 51, Hague Regulations.
'"Art. 43, Hague Regulations; Haw Pia v. China Banking Corporation. 80
Phil. 604.
^Villaruel v. Manila Motor Co., L-10394. Dec. 31, 1958; Arts. 53 and 55,
Hague Regulations.
WAR, N E U T R A L I T Y , A N D POSTLIMINIUM
Del Rosario v. Sandico

85 Phil. 170
An act of a belligerant occupant, iB valid at the begin-
ning, continues to be valid and will not be regarded as ret-
roactively void simply because the action later becomes con-
fiscatory and illegal. Only the latter acts will be unlawful.
H a w P i a v. China Banking Corporation

80 Phil. 604
FACTS: Haw Pia owed defendant a sum of money
(Philippine pesos), secured by a mortgage. During the Japa-
nese occupation, the Bank of Taiwan was given the right of
the Japanese Military Administration to liquidate the assets
of enemy banks (one of which was the defendant China
Banking Corporation). Haw Pia then paid off the mortgage,
not to the defendant, but to the Bank of Taiwan. Liberation
came. Haw Pia then asked the defendant for the cancellation
of the mortgage on the ground that the debt had been paid.
The defendant refused on the theory that the Bank of Taiwan
was not authorized to collect the credit; it, therefore, insisted
on the payment of the debt.
ISSUES:
(a) Did the Japanese Military Administration have the
right o liquidate and freeze the assets of enemy banks?
(b) Did the payment of Haw Pia to the Bank of Taiwan
extinguish the debt?
(c) Was the Japanese currency at the time to be con-
sidered legal tender?
HELD:
(a) Yes, the Japanese Military Administration, being
the belligerent occupant, had under the principles of inter-
national law, the right to liquidate, sequester or freeze the
assets of enemy banks.
(b) YeB, payment by Haw Pia to the Bank of Taiwan
extinguished the mortgage indebtedness, inasmuch as under
the law then prevailing, the Bank of Taiwan was clearly
authorized to receive payment. Hence, the mortgage should
be cancelled.
(c) Yes, the Japanese military notes were legal tender

because under international law, the invading power has the
right to issue currency for circulation here in the occupied
territory.
NOTE: Sequestration is also meant, not only to preserve
enemy property, but also to prevent said property from being
used against the belligerent occupant. (Haw Pia, supra; Peo-
ple's Bank and Trust Co. v. Philippine National Bank, 88 Phil.
625).
QUERY
In Haw Pia v. China Banking Corporation, 80 Phil. 604, it
was held that the Japanese Military Forces had power to se-
questrate and impound the assets or funds of the China Bank and
for that purpose to liquidate it by collecting the debts due to said
bank from its debtors and paying its creditors, the Bank of Taiwan
having been appointed as liquidator with authority to collect.
Professor Hyde characterized such a ruling permitting a local debtor
"fully to satisfy her pre-war peso indebtedness to the local office of
a foreign creditor bank by payment in a greatly depreciated [the
6
term "depreciated" is akin to the word "devaluated"l. ' Japanese
military currency" as violative of international law. Is such a
comment of Prof. Hyde well founded? Explain.
ANSWER: It would seem that the comment of Prof. Hyde is

NOT well founded. Firstly, the power of a belligerent occupant to
issue military currency is based,, not only on the belligerent occu-
pant's general power to maintain law and order recognized in Art.
43 of the Hague Regulations, but also on military necessity. Sec-
ondly, the practice was also resorted to by the Allies in Sicily,
Germany, and Austria. Thirdly, when the Japanese military oc-
cupants issued the proclamation of January 3, 1942 (declaring the
Japanese Military Notes of small denominations up to P10.00 as
legal tender at par with the Philippine peso, the purchasing power
1
of said notes was then the SAME as that of the Philippine peso. "'"
Fourthly, there was no confiscation nor even an intent to confis-
"'Edgardo C. Paras. Jr., Economics for Lawyers (Manila: Hex Book Store.
1993), pp. 257-282.
^''Allison J. Gibbn, el al. v. Eulogio Rodriguez. . I u! I 1 191. Dec. 21. 1950
cate the assets of the China Banking Corporation, it appearing

that at the same time, the Japanese Army also paid the obliga-
tions of the Bank. Fifthly, to hold, a contrary doctrine would
greatly disturb so many financial and property transactions en-
62
tered into during the Japanese occupation.
Villaruel v. Manila Motor Co.

L-10394, December 31, 1958
FACTS: During the last war, the Japanese Army occu-
pied property which had been leased by a Filipino to another
Filipino. The occupation was essential for military needs. Issue:
Should the lessee pay rent to the lessor for the period during
which the property was occupied by the Japanese Forces?
HELD: No. For under International Law, the belligerent
occupant has the right to billet or quarter its troop in private
lands and buildings for the duration of its military operations
or as military necessity should demand. The trespass was not
an act of mere trespass, but a trespass in law; not a
"perturbation de mero hecho" but "perturbacion de derecho."
Since, therefore, the trespass was under color of title, the
same must be chargeable to the lessor for it is he who warrants
the peaceful and adequate enjoyment of the premises. The
lessee's obligation to pay ceased during the deprivation of the
possession. In a contract of lease, as distinguished from a
contract of sale, the cause or consideration must exist A L L
THROUGHOUT the duration of the contract; in a contract of
sale, it is enough that the cause should exist at the time of
perfection or meeting of the minds.
NOTE: The belligerent occupant is allowed to punish
acts of espionage and war treason.
(a) Espionage (or spying) — is an act of a person who
under false pretenses or clandestinely tries to obtain infor-
mation within the zone of belligerent operations for the use
6
of his side in the war. '" Regularly uniformed soldiers who
without any attempt at a disguise enter enemy territory are
not considered spies. Spying is not prohibited under inter-
H
S w Haw Pia v. China Banking Corporation, 80 Phil. 604.
fiJ
-Art- 29. Hague Regulations.
I N T E R N A T I O N A L LAW A N D W O R L D POLITICS
national law; it iB a legitimate strategy; however, spies may

0
be executed when captured, but only after a court-martial.
NOTE: George Segal, editor of The Pacific Review, en-
thused that —
"Spying, glibly known as the second oldest profession, is
as old as politics. From Joshua's biblical spies to KGB de-
fectors, the rationale for spying remains the same. It is in the
interest of adversaries to know as much about their opponent
and his thinking as possible. In the edgy atmosphere of the
Cold War, spy scandals were the equivalent of gunfire. In the
confused mood of the new detente, spies are hastily running
for new cover and revealing long-cherished secrets.
"The need for, and fascination with, spies will continue

as long as there is political conflict. But the methods of in-
telligence gathering have clearly moved away from humint
(human intelligence) and towards sigint (signal intelligence)
and elint (electronic intelligence). As new technologies
revolutionize information-gathering, this trend is likely to
continue; a pity, because somehow it is difficult to see a
publisher taking an interest in the treacherous tendencies of
a computer or satellite."
(b) War Treason — consists of all such acts (except

hostilities in arms on the part of the civilian population,
spreading of seditious propaganda by aircraft, and espionage)
committed within the lines of a belligerent as are harmful to
him and are intended to favor the enemy. It is distinguished
from real treason which can only be committed by owing
64
allegiance, although temporarily, to the injured State.
Examples: bribing soldiers in the interest of the enemy;
aiding prisoners of war to escape; fouling up sources of
water supply; intentional misleading of troops while acting
65
as guide.
NOTE: Upon the other hand, war rebels are those

within the region of belligerent occupation who rise in arms
"'Set' Art. 30 Hague Regulations.

"'Opptnheim. International Law. pp. 331-332
"'•S.w U.S. War Deuartnunt Basic Field Manual: Rules of Land Warfare.
against the belligerent occupants or against the authorities

88
established by the same.
NON-HOSTILE RELATIONS OR INTERCOURSE BETWEEN

BELLIGERENTS *
Non-hostile relations or intercourse ("commercial belli") be-
tween belligerents may be conducted by the following means, inter
alia: ^.
(1) passport (or pass) — a general permission by the com-
petent authorities which enables a person to travel within bel-
8 1
ligerent territory;
(2) safeconduct (or permit) — a special passport indicating
the conditions of travel, e g., time, region, with a guarantee of non-
68
injury to the persons or goods concerned;
(3) safeguard — a kind of protection afforded to travelling
persons or to property (such as buildings) by the commander of a
place, within the region of his command. NOTE: Usually, an es-
69
cort or convoy of soldiers provide the needed protection.
(4) permits or licenses to trade;
(5) cartels — agreements between belligerents for the
purpose of regulating intercourse not otherwise permitted in time
of war; usually, the subject matter deals with the exchange or
repatriation of prisoners of war. {Note: Carte) ships are those which
TU
transport prisoners of war who are to be exchanged. )
(6) white flags of truce and the parlementaire — the flag of
truce, white in color, indicates a desire to communicate with the
enemy; the agent is called "parlementaire," and is entrusted with
the duty of negotiating. If the "receiving" belligerent does not desire
to receive the parlementaire, a warning, with an opportunity to
withdraw, must be given."
"Ihid, 349.
6T
Wilson. Handbook of International Law, p. 411.
""See Fenwick, International Law, p. 492.
""See Wilson, Handbook of International Law, p. 412: Fenwick, loc. cit.
:
"See Wilson, op. cit., p. 413.
:,
.See Rules of Land Warfare. U.S. War Department. Sec. 220.
SUSPENSION OF HOSTTUT1ES
Hostilities between the belligerents may be suspended in the
following instances:
(1) suspension of arms — agreement between local com-
manders for a brief suspension of hostilities for Buch purposes as
72
the removal of the wounded or the burial of the dead.
(2) armistice — a suspension of military operations in all

regions; a local armistice applies only to certain fractions of the
7 1
army and is confined to a definite zone of operations. ' While an
armistice binds the belligerents from the time of the agreed
commencement, the officers themselves are held responsible only
from the time they receive official information of the existence of
74
the armistice. An armistice effects nothing but a cessation of
5
hostilities; the war continues to exist.' An armistice involves an
act of government, and is generally political in nature; a suspension
of arms is chiefly negotiated between local commanders and is of
78
a military character.
(3) ceasefire — this refers to a stoppage of all military firing

and advances, usually ordered by an international organization, so
that peaceful means may be availed of in the settlement of the dispute.
Examples: the ceasefire ordered by the Security Council in the 1948
77
dispute between the Jews and the Arabs in Palestine; also, the cease-
fire ordered in mid-year, 1967 by the Security Council to end the
Middle East conflict between Israel and the Arab States.
7
(4) truce — a conditional ceasefire for political purposes. "
Example: the 1948 Palestine Truce."
(5) capitulation — an agreement whereby a body of troops

or a fortress or a town is surrendered, done in accordance with
0
military rules and honor."
"'Fenwick, International Law, p. 493.

;l
A r l . 37, Hague Regulations.
u
Art. 254, U.S. War Department. Basic Field Manual.
•The Protector. 12 Wall. 700: Hijo v. U.S. 194 U.S. 315.
'Fenwick. International Law, pp. 492-493.
'See P. Muhn. Problems of Truce Supervision. Int. Cone. No. 478. pp. 51
et. seq.
"Sec Lawrence. Principles of International Law, p. 424.
:
"*Si-e Stone, Legal Controls of International Conflict, p. 654.
""Art 35. Hague Regulations; See Fenwick. no. cit.. 492.
WAR. NEUTRALITY, AND POSTLIMINIUM 615
(6) unconditional surrender — one effected with no condi-

tions attached.
THE END OF THE WAR

War may end thru any of the following modalities:
(1) cessation of hostilities without any formal treaty (e.g.,
the French-Spanish War of 1720; the French-Mexican War of
1867.)™ Because there is no treaty, the doctrine orUTI POSSIDETIS
is generally followed, the doctrine by which the property and
territory in the actual possession of each of the belligerents at the
conclusion of the war vest in the State having possession at the
8 !
time of cessation of hostilities;
(2) By a formal treaty of peace (e g., The Treaty of Versailles
ending World War I);
(3) By the complete submission and subjugation of one of
the belligerents (e g., conquest of Hanover, Hesse, Nassau by
8 3
Prussia in 1866) followed almost immediately by annexation;
(4) By unilateral declaration or proclamation (particularly,
if the victory has been overwhelming).
TERMINATION OF THE LAST WAR WITH PARTICULAR

REFERENCE TO THE PHILIPPINES
When did the last World War end, insofar as the Philippines
is concerned? Apparently conflicting dates have been designated
by the Philippine Supreme Court on the matter. The following is
a resume of the dates that have been given:
(1) Sept. 2, 1945 — the factual termination of the last war;
formal signing of the treaty of surrender of the Japanese Armed
M
Forces to the Allied Forces at Tokyo Bay;
(2) December 31, 1946 — termination of the Greater East
Asian War in the Philippines, because on this date, there was an
official proclamation of peace;**
Bl
Wilson and Tucker, International Law, pp. 300-303.
m
""Hall, Treatise on International Law. p. 672.
S e e Wilson and Tucker, loc. cit.
"Arellano v. Domingo, L-8679, July 26, 1957.
"Navarro v. Barredo, L-8660. May 21. 1956; Kare v. Imperial. L-7906, Ocl.
22, 1957.
(3) Sept. 8, 1951 — According to the Court, when the phrase

"termination of war" is used in private contracts — this refers to
M
the formal proclamation of peace — and this formal or official
declaration of peace occurred when the San Francisco Peace Treaty
was signed on Sept. 6, 1951. To ordinary citizens "uninitiated in
technicalities and fine points of international law, war terminates
in the common and practical sense, i.e., — upon the signing of the
87
Treaty of Peace. In the Mereado case, the pertinent provision in
the contract read "after the complete termination of the present
Greater East Asian War" and "after the end of the war in the
Philippines";
(4) April 28, 1952 — "ratification or the Treaty of Peace

concluding the Greater EasfrAsia War." The Court said: T h e word
'ratification' being used in a general sense without reference to
any specific country, and the Greater East Asia War having been
construed to mean the general war between Japan and the Allied
Powers, not the hostilities between the Philippines and Japan in
particular, the ratification should be only by a majority of the
signatory powers. This should, therefore, refer. . . to the deposit of
the instruments of ratification on April 28, 1952 by ,the majority
(in fact, A L L ) of those concerned with the Greater East Asia.""*
SOME EFFECTS OF THE TERMINATION OF WAR BY

MEANS OF A TREATY INSOFAR AS INTERNATIONAL
LAW IS CONCERNED
Insofar as international law is concerned, some of the effects
of the termination of war by means of a treaty are the following:
(1) the restoration of friendly relations between the former
belligerents;
(2) the renewal of diplomatic intercourse;
(3) the revival of such treaties as had been merely suspended
during the existence of the war;
(4) the removal of wartime disabilities on enemy aliens;
(5) the grant of damages, in accordance with treaty stipu-
lations;
*Fabie v. Court of Appeals, March 29, 1955.

"Mereado u. Punealan, L-8366. April 27, 1956.
**Kare v. Imperial, L-7906, Oct. 22, 1967.
(6) the termination of the wartime rights and obligations of

the neutral States;
(7) the restoration to the status quo ante bellum (the state
of things before the war) or properties and possessions (except
lawful prize and booty)
(NOTE: ir there is NO treaty, the general rule is the uti
possidetis instead of status quo ante bellum);
(6) the grant of amnesty (immunity from prosecution for
violations of warfare rules, and/or political offenses).
(NOTE: Under the 1949 Geneva Convention, the release or
repatriation of war prisoners should ordinarily be made after
cessation of hostilities without waiting for the formal treaty of
88
peace).
NEUTRALITY
rrir
Neutrality is the non,-"" ipation directly or indirectly, in
L
a "hot" war between contending belligerents. Traditionally, there

has been a distinction between the so-called neutral states, and
neutralized State. Neutral States are so because of their inaction
or indifferences, and their rights and obligations are governed by"
the rules of international law; upon the other hand, neutralized
States are the result of treaties which guarantee their neutrality,
the treaties themselves governing their consequent rights and
obligations. Moreover, while neutral States and neutrality exist
only during war, neutralized States and neutralization continue to
90
exist as such both in time of peace and in time of war.
In a "cold" war (war of ideas and ideals), a State that sides
with neither the Democracies nor the Communists StateB is re-
ferred to SB a "neutralist " State (non-aligned).
NOTE: It is argued that there no longer exists today a "cold
war" but that the world is in a post-Cold War era.
" S e e Fenwick. op. cit., 581; Wilson, op. cit., p. 429.: United States v.
Dunning ton, 146 U.S. 338.
" S e e Wilson and Tucker, International Law, pp. 307-308.
KINDS OF NEUTRALITY
There are various forms of neutrality:
(1) permanent or perpetual neutrality — (in the case of a
neutralized State, e.g., Switzerland);
( N O T E : Switzerland became a neutralized State in the treaty
or declaration of March 20, 1815 signed by Great Britain, France,
Austria, Prussia, Russia, Portugal, Spain and Sweden. The dec-
41
laration was acceded to by Switzerland on May 27,1815).
(2) perfect or absolute neutrality (in the case of a neutral
State that does not participate in the conflict directly or indirectly);
(3) armed neutrality (where military measures are taken
by a neutral State buTuTily for defensive purposes against possible
violations of neutrality by the belligerents);
(4) qualified neutrality (where the ordinarily neutral State
has to give*soTh~e~Torm of assistance to one of the belligerents as a
2
result of a treaty P R E V I O U S L Y entered into with one of them."
NEUTRALITY UNDER THE UN CHARTER
In view of the enforcement actions provided for in the UN

Charter, it is believed that generally, insofar as UN members are
concerned, absolute neutrality cannot possibly exist. Members not
involved in a particular war are permitted by the Charter to assist
the belligerent who is the victim of an "armed attack," but not the
93
guilty belligerent.
Theoretically, neutralized States cannot become members of

the UN because of collective "enforcement measures" except if the
neutrality is renounced or the UN Charter is amended, U N L E S S
we accept the theory that the UN Charter requiring "participa-
tion" implicitly abrogates the traditional doctrine of international
law which demands non-participation on the part of neutrals. Be
that as it may, the rules of neutrality insist on a norm of conduct
to be followed by neutrals:
"Kelsen, Principles of International Law. p. 85.

M
S e e Oppenheim-Lauterpacht, International Law. Vol. I I . p. 663.
"Kelsen. op. cit.. p. 87.
(1) Neutrals ought to abstain from assisting the belligerents

by:
(a) the sending of troops;
<b> the official grant of loans;
(c) the carriage of contraband;
(d) the engaging in unneutral service.
(2) Neutrals must prevent:
(a) their territory from becoming the base of operations
on the part of the belligerents (thus, belligerent vessels within
the ports of the neutral State ought to leave within twenty-
four hours after the commencement of the war — the 24-hour
rule; if the vessels are those of both belligerents, those of one
must have at least 24 hours prior to the departure of the
94
vessels of the other belligerent — the 24 hour interval rule).
(b) the setting up of wireless stations in the territory,
95
as well as the establishment of recruitment centers therein.
(3) Neutrals must acquiesce:
(a) to the inconveniences of an effective blockade (not
a paper blockade, which is good only in theory, but which
cannot actually be set up in actual maneuvers; nor a long-
distance blockade the enforcement of which is impracticable).
NOTE: For a blockade to be valid, it must be maintained
by a force sufficient to prevent access to the coastline of the
enemy; it must be duly communicated to neutral States and
their vessels; it must have been declared by properly con-
86
stituted authorities.
(b) to visitations and searches, and in some cases to
the authority of prize courts (national courts of a State
generally applying rules of international law in deciding the
97
legality or illegality of the seizure of a vessel.
"Wilson and Tucker, International Law. p. 324; See also Art. 16, Hague
Conventions X I I I , II Oppenheim, p. 706.
**lbid.. pp. 663-656.
" S e e Fenwick, op. cit., pp. 549-650.
"See The Maria, 1799, 1 C. ob. 340.
I N T E R N A T I O N A L L A W A N D W O R L D P O L I T I CS
(c) the exercise of the right of angary (the right of a

belligerent state to make use of properties of neutral states
located within the territory of the former, provided there is
urgent need for said properties, and provided further that
adequate compensation be paid therefor).
INTERNAL CONFLICT AND NON-ALIGNMENT

The Persian Gulf War has ended, but the killings continue.
As humanity watches massacres in Iraq, the world community
ponders — When is there a duty to 'interfere?
The issue of what is "internal conflict" and what merits in-
ternational actions is aflame because of the massacres. This is a
priority if there is to be even a start on a "new world order." For
one, France has proposed an amendment to the UN Charter to
include a "duty of interference" in cases of particularly outrageous
abuses of human and minority rights. Avers French Foreign
Minister Roland Dumas: "The law can evolve: When there are new
types of crimes, why not new legal rules to address them?" In
other words, a clearer sense of when and how international re-
sponsibility should be engaged is needed. The UN has come to
function as a legitimating body for intervention, but its fundamental
doctrine of national sovereignty is no longer inadequate. For this
precise purpose, participating States must recognize that human
rights are an appropriate international concern; how countries treat
their own people can no longer be shrugged off as nobody else's
business, at least among signatories.
While the UN could do better, it feels blocked by the rule of

non-interference in internal affairs; it is high time, thus, for the
world body to seriously review this principle. The reason is mani-
fest: Why does the UN feel obliged to send food and medical supplies
to refugees from war-torn areas on humanitarian grounds but does
not venture to assist in resolving the war itself? Accordingly, there
ar two (2) grounds for redefining the line when internal affairs are
superseded by responsibility for maintaining international peace
and security: (1) 'Realpolitik' the conflicts do spill over and upset
the region; and (2) Moral, ethical, and in today's world, political-
human rights cannot be bounded by frontiers, and countries that
flagrantly abuse their citizens are a menace to all.
Corollary to the rule of non-interference is a fast decimating

international group known a the non-aligned movement. In 1961
WAR. NEUTRALITY, AND POSTLIMINIUM 621
at Belgrade, a number of non-aligned countries came together to

form a Non-aligned Movement to make clear their dissatisfaction
at the paralysis produced by superpower deadlock and to ensure
that alternative perspectives on international issues were pushed
to the fore. It was formed by leaders of newly-independent countries
(such as Nehru of India and Nkrumah of Ghana) or those asserting
their independence from one of the blocs (such as Tito of Yugoslavia)
to provide an alternative to a polarized international system. In
the late 1970B it began to be asked exactly how non-aligned the
movement actually was, as Fidel Castro's Cuba moved into a
leadership position and began to argue that the then Soviet Union
was really quite sympathetic to the views of the non-aligned and
supportive of their interests. This argument was opposed vigorously
at the time and did not in practice survive the Soviet invasion of
Afghanistan.
The lasting effect of the movement has been to emphasize the
unwillingneBB of the majority of countries to tie themselves too
closely to one particular bloc. As a basis for a positive diplomacy,
it has now been superseded by smaller groupings which can ad-
dress local problems of real substance. Examples of these major
regional groupings a r e : the Arab League, the Organization of
American StateB, the Organization of African Unity, the Gulf
Cooperation Council, and the Association of South East Asian
Nations (ASEAN).
THE CARRIAGE OF CONTRABAND

Contraband is anything that enables a belligerent to carry on
9
the struggle w i t h greater vigor: "
(a) it is absolute contraband — when it consists of
articles of war (arms, munitions) destined for belligerent ter-
ritory;
(b) it is conditional or relative contraband — when it
consists of materials useful both in war and in peace (e.g.,
food and clothing) A N D is destined for the military authori-
ties of the belligerent territory.
(NOTE: If the food or clothing is destined for the civilians of
99
belligerent territory; it is NOT regarded as contraband. Of course.
w
l l Oppenheim 799.
M
3 e e Fenwick, International Law. p. 663; Oppenheim, op. cit.. 803.
under the doctrine of usus anticipitis, articles of ambiguous use

may sometimes be regarded as contraband if used Tor war pur-
100
poses.)
'Neutrals are not supposed to carry contraband; if contraband
is found, the same may be seized, without payment; even innocent
goods may be seized in some cases as a result of the doctrine of
infection. To avoid detection, neutral vessels sometimes pretend to
be destined merely for neutral, not belligerent, ports (so that the
cargo may not be deemed contraband); however, if it be proved
that the ultimate destination be really belligerent territory, the
entire voyage is considered as one continuous one, and the con-
traband may be seized even if at the exact moment of capture the
goods were apparently destined for a neutral port (doctrine of
continuous voyage). Where the vessel itself has a bona fide neutral
destination; but its cargo, after being deposited in a neutral port,
is to be Lranshipped to a smaller and swifter vessel to be used ae
a blockade-runner, the cargo may, likewise, be seized as contra-
band. The same rule applies when after shipment thru the sea to
a neutral port, the goods are to be transported by land to a bel-
ligerent destination. This is referred to as the doctrine of con-
101
tinuous transport or the doctrine of ultimate destination.
UNNEUTRAL SERVICE
While the carriage of war goods and materials is referred to
as the carriage of contraband, the "Carriage of belligerent persons
and of enemy dispatches is denominated as "unneutral service."
Unneutral service is necessarily hostile in character, gives more
assistance to the enemy than contraband carriage, and places a
neutral in the DIRECT service of a belligerent. Contraband car-
riage is not necessarily hostile, and merely serves the enemy in-
102
directly.
POSTLIMINIUM OR POSTLIMINI
Postliminium or postlimini is the reversion* to the old laws
and sovereignty of territory that has been under belligerent occu-
10
°See Wilson and Tucker, op. cit., p. 345.
""See Fenwick, op. cit., p. 551.
""See Wilson and Tucker, op. cit.. p. 346; II Oppenheim, op. cot.. 832.
WAR, NEUTRALITY, AND POSTLIMINIUM
pation. It differs from status quo ante bellum in that while the
former respects certain changes that had occurred during the
belligerent occupation, the latter doctrine usually presupposes a
COMPETE REVERSION to the original state of things. Upon the
other hand, postlimini must not be confused with uti possidetis
which as has already been intimated allows retention of property
and territory in a belligerent's actual possession at the time of
103
cessation of hostilities. Postlimini recognizes such vested private
104
rights as had been legitimately created by the temporary occupant.
Postliminium is principally a matter of municipal law, not inter-
national law.
SOME DOCTRINES CONCERNING POSTLIMINI AS

APPLIED BY OUR SUPREME COURT
Our Supreme Court has enunciated certain principles directly
connected with the doctrine of postlimini;
(1) Judicial acts and proceedings during the Japanese occu-
pation which did NOT partake of a political question remain good
and valid, even after the liberation of the Philippines. After all,
the Courts of the Philippine Commonwealth did not necessarily
become courts of Japan. Thus, their acts are entitled to recognition
after the restoration of the de jure government. A contrary rule
would paralyze the whole social life of a community in the event
1 5
of an invasion. " Note that the courts had been legally constituted.
(Ognir v. Director of Prisons, 80 Phil. 401).
Thus —
(a) final decrees of absolute divorce granted during the
Japanese occupation even on grounds newly provided for under
the Japanese Occupation's Executive Order on the subject
10 6
are considered still valid and subsisting.
NOTE: If, however, the divorce suits were still pending
in our courts at the time General Douglas MacArthur issued
a proclamation of peace, the suits would have to be dismissed
— on account of the lack of transitional provisions in
""See Fenwick, International Iaxw, p. 582.

,ul
Ibid.
'"'•Co Kim Cham v. Eusebio Vatdez Tan Keh, L-5, Sept. 17, 1945.
'••Havmundu v. Penan. L-6705, Dec. 23, 1954.
INTERNATIONAL L A W A N D W O R L D POLITICS
MacArthur's proclamation — E X C E P T those where the

grounds Tor the divorce were those recognized under Act No.
2710 — the OLD Absolute Divorce Law — which gave as
grounds adultery on the part of the wife or concubinage on
107
the part of the husband.
(b) Taxes paid during a hostile occupation or penalties

imposed for ordinary crimes imposed by the invader are
108
properly recognized.
(c) An adultery proceeding likewise continues to be ef-
109
fective.
(d) Payment of debts (pre-war and Japanese occupation)
110
was valid because the Japanese notes were legal tender.
(e) Bank deposits during the Japanese occupation were
not valid, but withdrawals were valid and deductible, except
insofar as said withdrawals could be deducted from prior
111
deposits of Japanese money. (Hilado v. De la Costa, 46 O.G.
5472, says that the technical reason is that a bank deposit is
NOT a payment of any obligation, whereas a bank withdrawal
is a payment of the loan contracted by the bank).
(2) Judicial acts and proceedings of a political complexion

rendered during the Occupation are, however, invalidated or
111
rendered null and void. Thus, a naturalization certificate
1 3
granted during the Occupation may now be properly cancelled. '
NOTE: A criminal proceeding in a court of justice is said to
be of a political complexion when the offense charge is a new act
not defined or penalized by the latter as a crime against the
legitimate government, but taken out of the territorial law and
penalized as a new offense against the belligerent occupant, inci-
dent to a State of war and necessary for the control of the occupied
territory and the protection of the army of the occupier. They are
acts that tend directly or indirectly to aid or favor the enemy, and
""/fcirf., See also Pena de Luz v. CFI, 43 O.G. p. 4102.

'""See Wilson and Tucker, International Law, p. 290.
""fferrero and Criaostomo v. Diaz. L-28. Nov. 27. 1945.
""Orden de P.P. Benedictios i: Phil. Trust Co., 47 O f . . 2894
"'Exec. Order No. 49. The Lowest Minimum Balance or Credit Lint
'"Co Kirr: Chan v. Vatdez Tan Keh. L-5. Sepl. 17. 1945.
"'SVc Palanca i. Rep.. 45 O.G Supp 204.
WAR, NEUTRALITY, A N D POSTLIMINIUM 625
are directed against the welfare, safety, and security of the bellig-
erent occupant. Examples are the crimes of treason, rebellion, etc.
against the Commonwealth or the U.S. Government under the
Revised Penal Code, which were made crimes against the bellig-
erent occupant. They are punished for public rather than private
4
reasons."
QUERY
On the reestablishment of the Commonwealth in 1945:
(a) Could a Court of First Instance (now Regional Trial
Court) continue proceedings in a civil case started before courts
organized during the period of the Japanese Military Occu-
pation?
(b) Was a sentence promulgated by the Occupation
Court of Special and Exclusive Criminal Jurisdiction con-
sidered valid?
(c) Was a decision of the Occupation Court of Appeals
rendered in 1944 affirming a lower court pre-war decision
binding and effective?
ANSWERS:
(a) Ordinarily, a Court of First Instance (now Regional
Trial Court) could continue proceeding in a civil case started
before courts organized during the period of the Japanese
Military Occupation. This is because the government during
the occupation was a de facto government, and the judicial
acts of the invader, done under the sanction of municipal law,
115
should remain good.
There are, however, at least two (2) exceptions to the
doctrine enunciated hereinabove:
(1) proceedings of a political complexion could
,lh
certainly not continue.
(2) divorce proceedings still pending at the time
the Philippines was liberated could not be continued
'".SIT Peratla v. Director of Prisons, L-49, Nov. 12. 1945.

"'<",. Kim Chan v. Valdci Tan Keh, supra,
•th.d.
unless based on grounds recognized under the old Abso-

7
lute Divorce L a w . "
(b) A sentence promulgated by the Occupation Court
of Special and Exclusive Criminal Jurisdiction was considered
valid only if it did not partake of a political complexion (for
a fuller discussion, see supra)."* Because of the non-political
character of certain cases, judgments thereon are to be re-
garded as valid. This is so even if a summary procedure of
prosecution had been adopted. (Peralta v. Director of Prisons,
75 Phil. 285).
(c) A non-political decision of the Occupation Court of

Appeals rendered in 1944 affirming a lower court pre-war
decision is binding and effective, the government at that time
1
being a de facto one. "
BAR
X was the owner of a motor vessel which the Japanese Army
confiscated during the occupation of the Philippines. After lib-
eration, the U.S. Armed Forces found that said vessel, and sold it
as enemy property to Y. An action is now filed by X against Y for
the recovery of the vessel, plus damages. Will the action prosper?
Give reasons for your answer.
ANSWER: The action will prosper. While the Japanese Army
had the right to make uBe of the vessel, still it was under obliga-
tion to R E S T O R E it at the conclusion of peace and to pay
indemnities therefor. (Art. 53, "Regulations Respecting the Laws,
and Customs of War on Land," Appended to the Hague Conven-
tion or 1907). The title to the vessel did N O T , therefore, pass to
the Japanese Army, but remained with X. The vessel cannot
consequently be considered as enemy property, and was not.such
when it was found by the U.S. Armed Forces and sold to Y. The
Vi0
sale cannot, thus, be considered valid as against X.
— oOo —
ul
Raymundo v. Pehas, L-6705, Dec. 23, 195-1.
""Peralta v. Director of Prisons, L-49, Nov. 12. 1945; People of the Phil-
ippines v. Benedicto Jose, L-22, Dec. 20. 1945.
,l9
C o Kim Chan v. Valdcz Tan Keh. L-5, Sept. 15, 1945.
,3U
Placido Noveda v. Marcos Escobar, L-2939. Aug. 29. 1950.
Chapter 14
THE UNITED NATIONS

ORGANIZATION
INTRODUCTION
"In the spring of 1945, World War II was plainly drawing to
a close. Millions of people had died in that war; millions more
were homeless, hungry, and cold. The people of the whole world
longed for a lasting peace. The victims of war devastation, and
hundreds of millions who suffered grinding poverty even in peace-
time, longed also for an escape from poverty, hunger, and disease.
All over the world, too, wherever people lived under foreign
domination or homegrown oppression, there was a growing demand
for freedom and justice.
"These deep desires for peace and for better conditions of life
were joined in the great conference at San Francisco in the spring
of 1945, when the nations combined their efforts in the organiza-
tion of the United Nations."'
THE TIME AND THE P L A C E

The Charter of the United Nations was signed on June 26,
1945 at San Francisco, California. It took effect October 24, 1945
upon ratification by the Great Powers and a majority of the other
signatory States.
THE BACKGROUND
At the close of World War I, the League of Nations was formed
(1919) to achieve international peace and encourage international
'From the Foreword to the "United Nations", by David Cushmnn Coyle.
627
cooperation. Unfortunately, the United States did not become a

member despite the fact that it was President Woodrow Wilson of
the United States who had proposed in his "Fourteen Points" its
establishment. The League eventually collapsed, its official disso-
lution being on April 19. 194fi—
On August 14, 1941, President Franklin Delano Roosevelt
and Prime Minister Winston Churchill had issued a joint Decla-
ration — the Atlantic Charter— (after a meeting "somewhere on
the Atlantic"). Among the principles declared were: the right of
self-determination, freedom of the seas, abandonment of the use of
force, full economic collaboration, and "the establishment of a wider
and permanent system of general security." The last principle
evidently had an international organization in mind.
In November, 1943, the Moscow Declaration (of the United

States, Great Britain, Russia, and China) specifically recommended
an international assembly. The plan was implemented by these
four States in the Dumbarton Oaks (State of Washington) Proposal;
was followed up in the Yalta .Agxeamgnt (February 1945) in which
the U.S., Russia, and England decided to call a conference for the
precise purpose of drawing up the needed charter of the organi-
zation. This Charter was finally signed as already stated, on June
26,1945.
In terms of the Charter, the official languages used are:

Chinese, French, Russian, and Spanish.
As an official language of the General Assembly, the Security
Council and the Economic and Social Council, Arabic has been
added as an official language.
NOTE: Aptly described by Oxford University Foreign Service
Programme Director R.G. Feltham as a "striking diplomatic con-
ference," the United Nations is a worldwide association of States
which, upon signing of the Charter of the United Nations, sub-
scribe to its purposes and agree to act in accordance with its prin-
ciples.
PURPOSES OF THE UNITED NATJONS f

Briefly there are four (4) salient purposes:
(1) the attainment of international peace and security:
(2) the development of friendly relations;
T H E UNITED NATIONS ORGANIZATION 629
(3) theâchieviiig of intei national cooperation; and

(4) the use of the UN as the center for the harmonizing of
actions to attain these three aims!
In the words of the UN Charter itself:
(1) "to maintain international peace and security, and to
that end: to take effective collective measures for the prevention
and removal of thrp«t«_tn the peace, and for the suppression of
acts of aggression or other breaches of the peace, and to bring
about by peaceful means, and in conformity with the principles of
justice and international law, adjustment, or settlement of inter-
national disputes or situation? which might lead to a breach of the
peace;
(2) "to develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of
peoples, and to take other appropriate measures to strengthen
universal peace;
(3) "to achieve international cooperation in solving inter-
national problems of an economic, social, cultural, or humanitar-
ian character, and in promoting and encouraging respect for hu-
man rights and for fundamental freedoms for all without distinction
as to race, sex, language, or religion; and
(4) "to be a center for harmonizing the actions of nations in
2
the attainment of these common ends."
PflWGIPI *BJ O r T H E AillfJED NATIONS

The organization is supposed to act in accordance with the
following principles:
j\) sovereign equality;
(2) good faith;
L8) peaceful settlement o f disputes;
14) avoidance of threat or use of force;
J15) members to assist U N ;
UN to ensure that non-members will act property; and
'Art 1. UN Charter.
(7) non-intervention.
The UN Charter refers to these principles in the following
terms:
(1) "The Organization iB based on the principle of the sov-
ereign equality of all its Members.
(2) "All Members, in order to ensure to all of them the rights
and benefits resulting from membership, shall fulfill in good faith
the obligations assumed by them in accordance with the present
Charter.
(3) "All Members shall settle their international disputes
by peaceful means in such a manner thai international peace and
security, and justice, are not endangered.
(4) "All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or
political independence of any State or in any other manner in-
consistent with the purposes of the United Nations.
(5) "All Members shall give the United Nations every as-
sistance in any action it takes in accordance with the present
Charter, and shall refrain from giving assistance to any State
against which the United Nations is taking preventive or en-
forcement action.
(6) T h e Organization shall ensure that States which are

not Members of the United Nations act in accordance with these
Principles so far as may be necessary for the maintenance of in-
ternational peace and security.
(7) "Nothing contained in the present Charter shall author-

ize the United Nations to intervene in matters which are essen-
tially within the domestic jurisdiction of any State or shall require
the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the appli-
5
cation of enforcement measures under Chapter V I I . "
UN MEMBER-STATES AND PAYMENT OF DUES

The UN Charter mandates that all member-States of the
'Arl. 2. UN Charter.
THE UNITED NATIONS ORGANIZATION 631
organization must pay their dues, considering in the words of then

UN Sec-Gen. Javier Perez de Cuellar, that —
"[t]he time seems to have come to examine afresh the

conditions in which increasingly varied and complex man-
dates are entrusted to the Secretariat."
Cuellar's thesis follows:
"In the fu-Bt place, it is hardly comprehensible that Gov-

ernments impose far-reaching and costly responsibilities on
the Organization, as they judge they must, but are them-
selves unwilling to fulfill corresponding financial obligations.
Voluntary contributions, however welcome and generous they
may be, cannot reliably fill the gap. This places the Secre-
tary-General in an often intolerable situation. Under the
Charter, it is a legal duty of Member-States to pay their
assessed contributions. By improved mechanisms, payments
must be made on time and in full if the Secretariat is to
retain the capability of responding, on behalf of the mem-
bership as a whole, to the pressing tasks required of it. At the
time of writing this report, the level of outstanding contri-
butions to the regular budget was $809,445,015, and only 49
Member-States had fully paid their annual contributions.
Peacekeeping assessments unpaid by Governments amounted
to $488, 994, 618. It can thus be seen that the financial crisis
of the Organization is still not over. I trust that, along with
enlarging the Organization's role by their own decisions,
Governments will revise their approach to funding the vital
and far-reaching tasks they request the Secretariat to perform.
"Furthermore, constrained as the Secretariat is by zero-

growth budgetB, it would at first sight appear necessary that
Governments prioritize the mandates conferred upon the
organizations. Since, however, this is difficult in practice, some
flexibility has to be left within its budgets for redeployment,
in light of demands of changing situations, of existing re-
sources on a discretionary basis. At present, there is virtually
no such flexibility. Difficulties are aggravated by divergent
decisions coming from the different legislative bodies, as [has
already] happened.
"All this becomes stranger if it is borne in mind that the
proportion of national budgets that Governments devote to
the United Nations is minuscule compared with their mili-

tary outlays; indeed, by any reckoning, resources devoted to
the Organization constitute an extremely economical invest-
ment Tor Governments.
"There is an urgency to replenish, increase and main-

tain the Working Capital Fund and the Special Account, both
of which are gravely depleted. Member-States may also wish
to consider the establishment of a strategic reserve fund spe-
cifically designed to meet the costs arising from unantici-
pated pressures upon scarce resources. Had such a fund been
available, the Organization might not have become a men-
dicant as it did in order to secure, at very short notice, size-
able resources so as to undertake urgent and unexpected tasks.
Alternatively, p e r h a p 6 the time has come again to consider
permitting the Organization to borrow, since such a facility
could help to provide the necessary flexibility in unantici-
pated contingencies." (Report of the Secretary-General on the
Work of the UN, October, 1991).
MACEDONIA IS NEWEST UN MEMBER
On April 8, 1993, the UN General Assembly welcomed Mac-

edonia into the community of nations. But its admission as the
UN's 184th member was qualified in ways that no other country
has had to accept. This republic of two million citizens may not fly
its flag outside UN headquarters, and had to forego the customary
flag-raising ceremony — even if its name is temporary.
For at least 15 months, Greece had blocked Macedonia's
admission to the U N , claiming the use of the name "Macedonia"
implies territorial designs on the northern Greek province of the
same name. In addition, Greece had refused to let Macedonia be
admitted while its flag contained the 16-pointed Star of Virginia,
symbol of the Macedonia dynasty of the 4th century B.C. warrior-
king Alexander the Great.
Macedonia was only admitted after the two countries agreed

to temporarily call the new State "The Former Yugoslav Republic
of Macedonia." Macedonia was placed in the General Assembly's
alphabetical seating plan between Thailand and Togo — for "The
Former. . ." Macedonia seceded from Yugoslav in 1991.
THE UNITED N A T I O N S ORGANIZATION
ORGANS OF THE UN
The principal organs of the UN are the following:
(1) General Assembly;
(2) Security Council;
(3) Economic and Social Council;
(4) Trusteeship Council;
(5) International Court of Justice; and
(6) Secretariat.*-'
The Specialized Agencies affiliated with the U N are the fol-
lowing:
(1) International Labor Organization (ILO)
(2) United Nations Educational, Scientific and Cultural
Organization (UNESCO)
(3) International Bank for Reconstruction and Development
(World Bank)
(4) International Monetary Fund ( I M F or Fund)
(5) Universal Postal Union ( U P U )
(6) World Meteorological Organization ( W M O )
(7) Food and Agriculture Organization of the United Nations
(FAO)
(8) International Civil Aviation Organization (ICAO)
(9) International Finance Corporation (IFC)
(10) World Health Organization ( W H O )
(11) International Telecommunications Union (ITU)
(12) International Atomic Energy Agency (IAEA)
NOTE. 'Specialized Agencies'

"Specialized Agencies" are international organizations having
functions in particular fields. The term appears in Articles 57 and
63 of the UN Charter. (International Catholic Migration Com-
'Art. 7. No. 1. UN Charter.

mission v. Calleja, G.R. No. 85750, Sept. 28, 1990, J. Melencio-

Herrera, ponente).
The Charter, while it invests the UN with the general task
of promoting progress and international cooperation in economic,
social, health, cultural, educational and related matters, contem-
plates that these tasks will be mainly fulfilled not by the organs
of the UN itself but by autonomous international organizations
established by inter-governmental agreements outside the United
Nations. There are now many such international agencies having
functions in many different fields, e.g., in posts, telecommunications,
railways, canals, rivers, sea transport, civil aviation, metereology,
atomic energy, finance, trade, education, and culture, health, and
refugees. Some are virtually worldwide in their membership; some
are regional or otherwise limited in their membership. The Charter
provides that those agencies which have "wide international re-
sponsibilities" are to be brought into relationship with the UN by
agreements entered into between them and the Economic and Social
Council, are then to be known as "specialized agencies."
In the International Catholic Migration Commission v. Calleja

case (supra), the Philippine the Supreme Court, speaking thru
Justice Ameurfina Melencio-Herrera, said: Article II of the
Memorandum of Agreement between the Philippine Government
and the International Catholic Migrating Commission provides that
ICMC shall have a status "similar to that of a specialized agency."
Thus, Art. I I I . Sees. 4 and 5 of the Convention on the Privi-
leges and Immunities of Specialized Agencies adopted by the United
Nations General Assembly on Nov. 21, 1947 and concurred in by
the Philippine Senate thru Resolution No. 17 on May 17, 1949,
provides: "Sec. 4. The specialized agencies, their property and
assets, wherever located and by whomsoever held, shall enjoy
immunity from every form of legal process insofar as in any par-
ticular case they have expressly waived their immunity. It is,
however, understood that no waiver of immunity shall extend to
any measure of execution." "Sec. 5. The premises of the specialized
agencies shall be inviolable. The property and assets of the spe-
cialized agencies, wherever located and whomsoever held shall be
immune from search, requisition, confiscation, exporpriation and
any other form of interference, whether by executive, administra-
tive, judicial or legislative action."
. The Department of Foreign Affairs, thru its legal adviser,

sustained ICMC's invocation of immunity when in a Memorandum,
dated Oct. 17, 1988, it expressed the view that "the Order or the
Director of the Bureau of Labor Relations dated September 21,
1988 for the conduct or certification election within ICMC violates
he diplomatic immunity or the organization." The foregoing opinions
constitute a categorial recognition, which determination has been
held to be a political question conclusive upon the Courts in order
not to embarass a political department of the Government.
The grant of immunity from local jurisdiction to ICMC iB
necessitated by their international character and respective pur-
poses. The objective is to avoid the danger of partiality and inter-
ference by the host country to their internal workings. The exer-
cise of jurisdiction by the Department or Labor in these instances
would defeat the very purpose of immunity which is to shield the
affairs of international organizations in accordance with interna-
tional practice, from political pressure or control by the host country
to the prejudice of member-States of the organization, and to ensure
the unhampered performance of their functions.
According to the Supreme Court, ICMCs immunity from local

jurisdiction by no means deprives labor of its rights which are
guaranteed by Art. II (Sec. 18), Art. I l l (Sec. 8) and Art. XIII (Sec.
3) of the 1987 Philippine Constitution; and implemented by Arts.
243 and 246 of the Philippine Labor Code. For one, ICMC employ-
ees are not without recourse whenever there are disputes to be
settled. Sec. 31 of the Convention on the Privileges and Immunities
of the Specialized Agencies of the United Nations provides that
"each specialized agency shall make provision for appropriate modes
or settlement of disputes arising out of contracts or other disputes
or private character to which the specialized agency is a party."
Moreover, Baid the Court, pursuant to Article IV of the

Memorandum of Agreement between ICMC and the Philippine
Government, whenever there is any abuse of privilege by ICMC,
the Government is free to withdraw the privileges and immunities
accorded.
According to the Supreme Court, the immunity granted being
"from every form of legal process except insofar as in any particular
case they have expressly waived their immunity," it is inaccurate
to state that a certification election is beyond the scope of that
immunity for the reason that it is not a suit against ICMC. A
certification election cannot be viewed aa an independent or iso-
lated process. It could trigger off a series of events in the collective
bargaining procesB together with related incedents and/or concerted
activities, which could inevitably i n v o l v e ICMC in the "legal proc-

ess,'' which include any penal, civil, and administrative proceed-
ings."
Concluded the Court: T h e eventuality of court litigation is
never remote and from which international organizations are
precisely shielded to safeguard them from the disruption of their
functions. Clauses on jurisdictional immunity are said to be
standard provisions in the constitutions of international organi-
zations. The immunity covers that organization concerned, its
property, and its assets. It is equally applicable to proceedings in
personam and proceedings in rem."
Some Subsidiary Organs:
(1) United Nations Administration Tribunal;
(2) International Law Commission;
(3) Commission on Human Rights;
(4) Commission on the Status of Women; and
(5) United Nations International Children's Emergency Fund
(UNICEF)
THE GENERAL ASSEMBLY

Composition:
The General Assembly shall consist of all the Members of the
United Nations. Each Member shall have not more than five
5
repxeaentatiyes to the General Assembly.
Comment:
There are two kinds of members: the original members, and
those subsequently admitted. The original members are the States
which, having participated in the United Nations Conference on
International Organization at San Francisco, or having previously
signed the Declaration by the United Nations of jAnuasy--L-1342,
signed the present Charter and ratified it in accordance with Art.
6
110. The additional members are those admitted under Art. 4, of
the Charter which says: "Membership in the United Nations is
s
A r t . 9, UN Charter.
6
open to all other peace-loving States, which accept the obligations

contained in the'present C h a x t e r T and in the judgment of the
Organization, are able and willing to carry out these obligations.
The admission of any such State to membership in the United
Nations w i l l be effected by a decision of the General Assembly upon
the recommendation of the Security Council."
Query: The Philippines and India are considered original
Members of the U N . How is this possible considering that at the
time the UN Charter was signed on June 26, 1945, the Philippines
was still a Commonwealth under the United States (the Philip-
pines became independent only on July 4, 1946) and India became
a self-governing dominion within the British Commonwealth only
on Aug. 15,1947?
«*
ANS: According to Dr. Rosalyn Higgins, author of "The De-
velopment o f International L a w Through the Political Organs o f
the United Nations," (1963), the reasons for their inclusion may be
summed up as follows:
"India had long been a participant in world affairs. It held a
portion of importance in the British Commonwealth, had an exem-
plary war record and had played an active role in the League
(League of Nations). The part played by the Philippines in the war
needs no emphasis. To have denied them membership would have
been both undesirable and embarrassing."
It will be noted that there had to be decisions made on whether

or not territorial communities not yet regarded States — because
they then fell Bhort of meeting traditional legal criteria — could
become original members. It is fortunate that a decision was made
in favor of both the Philippines and India.
Query: May the General Assembly admit a State to the United

Nations without a favorable recommendation from the Security
Council?
In an advisory opinion rendered by the International Court of
Justice (1950 I.CJ. 4, 44 A.J.I.L. p. 562), the Court answered the
query in the negative. Thus, if_the S*"*"riry rmmril has made no
recommendation for admission by reason of the candidate-State
failing to oT>îTthVrequisite majority or by reason of the negative
vote of a Permanent Member upon a resolution so to recommend,
the General Assembly cannot admit the candidate State. Art. 4,
par. 2 of the Charter reads as follows: "The admission of any such
State to membership in the United Nations will be effected by a

decision of the General Assembly, upon the recommendation of the
Security Council." A "recommendation" must first be made, other-
wise, a decision cannot be reached by the General Assembly. "Upon
the recommendation. . ." can only mean that the recommendation
ought to be the basic premise or foundation of the decision. Such
recommendation must be a F A V O R A B L E one. For the Assembly
to admit the State without said recommendation would be for the
General Assembly to reverse the Security Council, contrary to the
basic structure of the Charter making both entities principal or-
gans of the U . N .
^Voting:
(1) On ordinary questions — a simple^majority of the

members present and voting is needed;
(2) On important questions — decisions shall be made by a
two thirds majority of the members present and voting;
(3) The determination of whether the question is ordinary
or important is itself an ordinary question and is decided by a
simple^ majority;
(4) Important questions include:
(a) recommendations with respect to the maintenance
of international peace and security;
(b) the election of the non-permanent members of the
Security Council;
(c) the election of the members of the Economic and
Social Council;
(d) the election of members of the Trusteeship Council
(in the case provided for in par. I-c; Art. 86 of the Charter —
the additional members);
(e) the admission of new Members to the United Nations;
(f) the suspension of the rights and privileges of mem-
bership;
(g) the expulsion of members;
(h) question relating to the operation of the trustee-
ship system; "
THE UNITED NATIONS ORGANIZATION
(i) budgetary questions; and

a) such other questions as may be characterized
as important by the simple majority, of the members
7
present and voting.
NOTE: While it is the Security Council that has primary
responsibility for the maintenance of international peace and se^
curity, and the General Assembly merely makes recommendations
8
on disputes or situations N O T pending before the Council, still
there have been instances when the Council could not act, prin-
cipally because of the exercise of the VETO POWER. This state of
affairs led to the "Uniting for Peace Resolution" (adopted Nov. 3,
1950) allowing the General Assembly to make recommendations
(even on matters pending before the Security Council), and such
recommendations may even include the use of ARMED FORCE.
"If the Security Council because of lack of unanimity of
the permanent members fails to exercise its primary respon-
sibility for the maintenance of international peace and security
in any case where there appears to be a threat to the peace,
breach of the peace, or act of aggression, the General Assembly
shall consider the matter immediately with a view to making
appropriate recommendations to Members for collective
measures, including in the case of a breach of the peace or
act of aggression the USE OF ARMED FORCE when necessary
to maintain international peace and security .(The General
Assembly) recommends to the States — Members of the United
Nations that each Member maintain within its national armed
forces elements so trained, organized, and equipped that they
could promptly be made available, in accordance with its
constitutional processes, for service as a United Nations unit
or units, upon recommendation by the Security Council OR
the General Assembly, without prejudice to the use of such
elements in exercise of the right of individual or collective
self-defense recognized in Art. 51 of the Charter."
The So-Called 'Mechanical Majorities'

Certain quarters have referred to voting in the General As-
sembly as being controlled by "mechanical majorities" (majorities
:
A r l 18, UN Charier.
"Art*. 10 and 12. UN Charier.
who would vote. Tor instance, against any i s s u e e s p o u s e d by the

United States or by other western nations regardleBB of the merits
or demerits of the question, hence the term "mechanical majori-
ties" or "tyrannical majorities," led by the so-called Third World
(consisting principally of Afro-Asian and Arab nations).
The mechanical majorities controlled by the Third World

countries include the Bmall Caribbean islands and India, the latter
with more than a half-billion population). The majority is usually
supported by China and the former Soviet countries.
How the Third World nations vote on UN issues, has been
explained by one African ambassador. He says that instructions
from his home government are as follows:
"Vote with the Afro-Asians. If there iB no agreed Afro-

Asian position, vote with the Arabs. If there is no agreed
Arab position, vote with the Arab majority." (Time Magazine,
"The U.N.: Forum or Kangaroo Court? "December 23, 1974,
p. W.
Examples of v o t i n g by the "mechanical majorities" include
the following:
(1) inviting the Palestine Liberation Organization ( P L O ) ,
thru its chairman, Yasser Arafat, to address within the U . N . halls
the General Assembly, and thus, in a sense, virtually participate
in the U . N . debate on the deBire of the Palestinians to h a v e a
Palestinian State; (This desire is now a reality owing to the Israel-
P L O peace pact of Sept. 1993.)
(2) the expulsion of South Africa (on account of its "apart-

heid" or discriminatory policies against the blacks) from the 1974
General Assembly;
(3) the exclusion by the United Nations Educational, Scien-
tific, and Cultural Organization ( U N E S C O ) of Israel from certain
forms of aid;
(4) the passage of the "Charter of Economic Rights and
Duties of States," some portions of w h i c h constitute indictments
against the industrial States.
(Be it noted, however, that there have been some exceptions
to the mechanical tyranny, as w h e n because of a divided Third
World opinion, two Communist-backed resolutions failed to pass:
THE UNITED N A T I O N S ORGANIZATION 641
the resolution proposing the throwing out of the U . N . command in

Korea; and the resolution allowing the bringing in to the General
Assembly of the delegation of ousted Premier a n d Prince Norodom
Sihanouk of Cambodia.] Note the Norodom Sihanouk has b e e n
restored to his t h r o n e a f t e r the Constitution of Cambodia has been
ratified; he is n o w k n o w n for the Becond time as King Norodom
Sihanouk.
In defense, ambassadors from Third World countries enthused

that:
" tyrannical' majorities are nothing new at the U . N . ,
nor is stretching the U N . Charter unprecedented. In Novem-
ber 1950, early in the Korean War, the US. had such a cap-
tive following that it could get Assembly sanction for UN
military intervention in a "Uniting for Peace" resolution that
neatly circumvented Soviet veto rights in the Security Council.
Year after year until 1961, the U.S. blocked the U N . from
even putting membership for mainland China on the Assembly
agenda."
Questions on Which Conventions and Other Legal Instruments Have

Been Adopted by-the General Assembly
Some of the legal questions on which conventions and other
legal instruments have been adopted by the General Assembly, or
are in preparation, are: the prevention and removal of disputes;
the use of mercenaries; the non-use of force in international rela-
tions; the protection of persons under detention; and the peaceful
settlement of disputes between States.
In 1980, the Assembly established an ad hoc committee to
draft an international convention against the recruitment, use,
financing and training of mercenaries. After eight sessions, the
committee reached agreement on a number of provisions. The
Assembly's Special Committee on Enhancing the Effectiveness of
the Principle of Non-Use of Force in International Relations, es-
tablished in 1977, completed its work in 1987 on a draft Declara-
tion. At its regular 1987 session, the General Assembly adopted
the Declaration on the Enhancement of the Effectiveness of the
Principle of Refraining from the Threat or Use of Force in Inter-
national Relations. Replacing an Ad Hoc Committee on the
Charter of the United Nations, set up in 1974, the Assembly's
Special Committee on the Charter of the United Nations and on

the Strengthening of the Role of the Organization has met annually
since 1976 to consider suggestions and proposals regarding the
Charter and the role of the Organization. At its 1986 session, the
Special Committee completed the draft Declaration on the Pre-
vention and Removal of Disputes and Situations Which May
Threaten International Peace and Security and on the Role of the
United Nations in this Field. On December 5, 1988, the General
Assembly approved the Declaration. The Assembly also adopted,
on December 9, 1988, a Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment. At itB
1989 session, the Special Committee concluded consideration of a
proposal on the resort to a commission of good offices, mediation
or conciliation. At the same session, the Committee also consid-
ered proposals concerning fact-finding by the United Nations within
the context of the question of maintenance of international peace
and security. As at previous sessions, the Special Committee re-
viewed the question of the rationalization of United Nations
procedures.
Other legal questions are being worked out by a working

group on the NIEO (New International Economic Order) whose
work is directed to issues involving developing countries, and is
now preparing a model law on international procurement. Still
other legal questions as of January 1,1994 include work on a model
law for international credit transfer, work on guarantees and stand-
by letters of credit, and a legal guide on countertrade.
The International Civil Service Commission (ICSC)
This is the body responsible for making recommendation to

the General Assembly of the United Nations for the regulation
and coordination of-conditions of service within the U N , the spe-
cialized agencies, and other international organizations which
participate in the UN common system and accept the Commis-
sion's statute.
Also, the ICSC has certain decision-making functions with
respect to salaries, allowances, and job classification standards.
Incidentally, Filipino lawyer Mario D. Yango, who garnered a total
of 126 votes from UN member-States, won one of the two seats for
the Asian region in the ICSC. This triumph is most rewarding,
considering the presence of over 600 Filipinos currently serving in
THE UNITED NATIuNs < IRCANIZATION 643
the UN Secretariat in New York. (See Connie Constantino Santos,

"An RP Triumph in the UN," Philippine Panorama, April 11, 1993,
p. 121.
THE secwtrv CUUNLIL

. Composition:
Under the original provisions of the UN Charter, the Secu-
rity Council had 11 members: 5 permanent ones, and 6 non-per-
s
m;miT>i mprnbfr The 5 permanent ones are:
< 1) The United States
12) Russia
i3» United Kingdom of Great Britain and Northern Ireland
• 4i France
<5> China.
The non-permanent members under the original provision
wen- to be elected by the General Assembly, due regard being
specially paid, in the first instance to the contribution of Members
i>f the United Nations to the maintenance of international peace
and security, and to the other purposes of the Organization, and
9
also to provide equitable geographical distribution.
To provide "more equitable geographical representation," an
amendment to the UN Charier changes the membership of the
Security Council from eleven i l l ) to fifteen (15). There are still
five (5) permanent members, but the non-permanent group has
been increased to 10. The ten 110) non-permanent members shall
be elected according to the following pattern:
111 five from African and Asian States
(21 one from Eastern European Slates
(3) two from Latin American Stales
(4) two from Western Europe and other States.
This amendment and others discussed in subsequent head-
ings, were approved by way of a resolution in the General Assembly
18th Session, Agenda item 82, Dec. 17, 1963. They were concurred
in by Philippine Senate Resolution 47, May 21, 1964; signed and
"Art. 23. UN Charter.

ratified by the Philippine President on Oct. 2, 1964. The Philip-

pine instrument of ratification was deposited with the UN on Nov.
9, 1964. The amendments (in accordance with the UN Charter
provisions) entered into force August 31,1965. By June 15, 1966 —
106 members States has already ratified the amendment.**
While China was originally represented by Nationalist China
(Taiwan), the U N , after many years, decided that the true rep-
resentative of China should be the People's Republic of China (Red
China). Taiwan was thus o u B i e d from the Security Council, on
October 25, 1971.
NOTE:
Shirley Lai, reporting for the Associated Prp"s on Taiwan's
military arm6 build-up as its rivalry with Chim. ' tgers, wrote:
"After years of political isolation, Taiwan's Nationalist
Chinese government is pursuing a flurry of major arms deals
despite the easing of tensions in one of the last flashpoints
left from the Cold War. Archrival China accuses Taiwan of
promoting an arms race, but Taiwan says its purchases a r e
for self-defense and pose no strategic threat to the Commu-
nists on the mainland.
"This affluent island of 20 million people has been act-

ing swiftly because of its bulging bank account from booming
trade, its aging weaponry and its persistent rivalry with the
mainland, even though their relations have been improving.
Taiwan notched its first major deal in September, 1992, when
President Bush lifted a decade-old ban to approve the s a l e of
150 F-16 fighter jets to Taiwan. The deal with general con-
tractor General Dynamics Corp., valued at about $6 billion,
was signed in November, 1992.
"In mid-November, 1992, Taiwan signed contracts with

French companies to buy 60 Mirage 2000-5 warplanes worth
about $2.6 billion and at least 1,5000 air-to-air missiles.
"Nationalist forces fled to Taiwan in 1949 after losing a
long civil war with the Communists on the mainland. Since
then, both have claimed to be the legitimate ruler of all China.
^See Annual Report of the Secretary-General on Work Organization, June

16, 1965-June 15, 1966, p. 153.
"China opposes any sale of military equipment to Tai-

wan or any relations with Taipei that appear to give the
Nationalist government official recognition. In a possible sign
of thingB to come, China on Dec. 23, 1992 ordered France to
close its consulate in the southern city of Canton. It was
China's first formal act of retaliation after repeated warnings
that France would pay a heavy price for the sale, but Chinese
companies also have been stalling on planned deals with
French businesses. The moves are intended as a warning to
other European countries that have been considering weap-
ons sales to Taiwan. China also vehemently protested to the
United States over the F-16 deal, threatening a strong, but
unspecified response. But so far, Beijing has not acted against
the United States, which is China's biggest export market
and a major source of high-technology and investment money.
Chinese leaders also threatened to use force against Taiwan
if it declared independence.
"Yet the weapons purchases apparently were not
prompted by new political fears on Taiwan. To the contrary,
relations between Taiwan and China have improved. Since
the Nationalist government eased restrictions in 1987, Tai-
wan's indirect trade with China via Hongkong has boomed.
The two Chinas traded $5.78 billion of goods in the first nine
months of 1992, a 31 percent rise from the same period in
1991, and Taiwanese investments in China now exceed $4
billion. In 1992, Taiwan repealed 43-year-old wartime pro-
visions against China, and in July 1992 abolished an outpost
on the island of Kinmen, 1 1/2 miles (2.4 kilometers) off the
mainland, that had monitored Chinese movements for 34
years.
"Taiwan ranks as the world's 14th biggest economy and,

according to its Central Bank, holds about $83.9 billion in
foreign reserves. The market is potentially a big one for
weapons suppliers, who face dwindling demand worldwide
because of the end of the Cold War and global recession.
Weapon suppliers from the United States and Europe re-
portedly are competing for the sale of submarines to Taiwan.
"Defense Ministry officials say Taiwan needs to buy ad-
vanced fighters jets to replace the backbone of Taiwan's air
force, 30-year-old F-5Ea and 40-year old F-104 Sabre jets
dubbed by some as 'widow makers.' At least 13 pilots have
been killed Bince 1987 in crashes involving 23 jets of Taiwan's

400-plane fleet.
"Taiwanese officials say the island needs a minimal air
force of 400 to 500 jet fighters for self-protection. China has
more than 1,000 fighters patrolling its coast across from
Taiwan, which is within range of all Chinese missiles."
N.B.:
It comes as a surprise therefore that while the 21 million-strong
qualified, highly, to say the least, for membership in the UN —
possessed of the strong desire and sufficient resources to contribute
to the international community — yet, it is still barred from the UN
and many international conventions. These include, to name a few:
The Montreal Protocol on the Substances that Deplete the Ozone Layer,
the UN Framework Convention on Climate Change, and the Basel
Convention on the Control of Transboundary Movements of Hazard-
ous Wastes and their Disposal. This runs counter to the UN principle
of universality of membership, considering its being a participant in
the drafting of the UN Charter, a founder of said organization, and
a permanent member of the Security Council in 1945.
As a consequence of the civil war in 1949 resulting in China's

division into two: Taiwan and Mainland China (Beijing), the UN
was confronted with the thorny problem of how to seat the two
adversary political entities of China, since both possessed certain
territories (i.e., Taiwan, as the Republic of China, exercises control
over the Taiwan, Penghu, Kinmen, and Matsu areas), people, and
political powers. While the U N adopted Resolution 2758 (XXVI) on
Oct. 25, 1971 at the 26th regular session of the General Assembly
— determined that China's seat in the UN should be occupied by
the mainland Chinese regime — this move (of the U N ) apparently
did not completely resolve the issue resulting from China's division.
As already explained, both the Taiwanese government and
Mainland Chinese authorities have been exercising jurisdiction
over separate territories of China since 1949, a situation unique in
the history of international politics.
It must be borne in mind that conventional international

law does not provide for any such scenario, and contemporary
international law lacks the appropriate rules for regulating affairs
concerning the present divided condition of China. Hence even
ettperls in international law have virtually NO L E G A L PREC-
EDENT by which to deal with the issue.
Upon the other hand, Beijing (China) haB flexed its muscle
even while the U.S. frowned on the former's move of detonating its
first nuclear blast in 1993. Rejecting the pleaB of more than 20
nations, including the United States, China on Oct. 4, 1993,
conducted a small underground nuclear test at the Lop Nortest
site in northwest China. The blast, nevertheless, does increase the
chances of renewed detonations by France and Russia and has
caused the U.S. to set in motion its own process for possibly un-
leashing new tests in the early part of 1994. One factor that could
compel France to test is that, unlike the U.S., France does not
have the capacity to simulate nuclear weapons test with computers.
In Russia, as in all the nuclear powers, there are strong con-
stituencies in favor of continued testing for safety reason and for
continued weapon development. Pres. Yeltsin depended heavily on
the military to emerge victorious in the early October 1993
showdown against hardline opponents in Parliament and it is yet
unclear if he might be forced to resume testing as a debt to his
military supporters. (Carol Giacomo, "Will China Test Open Door
to Other Nuke Blasts?," Phil. Star. Oct. 10, 1993, p. 12).
Despite some fears China may have unleashed the nuclear
genie with its test, the testing moratorium is not that fragile that
one test would break it apart. At any rate, all the leaders of the
major nuclear powers have committed themselves to negotiating a
comprehensive test ban by 1996, a commitment arms experts say
is unique and bodes well for progress on containing nuclear weapons
expansion. {Ibid.).
Parenthetically, an alarming scenario is the reported existence
of secret doomsday machines by a former superpower (Russia) and
the only superpower today (the United States).
According to American military expert, Bruce Blair, of the
Brooking Institution in Washington, in an editorial he wrote for
The New York Times (Oct. 8, 1993), to wit:
"Russia has a computerized system that can automati-
cally fire its nuclear arsenal in wartime if military com-
manders are dead or unable to direct the battle.
"[In fact,) the doomsday machine still exists, [with thel
Russians first teBtJing] the 'dead hand' in 1984. The Russians'
lavish resources on its modernization to keep it on combat
alert at all times. The risk of its launching weapons by acci-
dent IB impossible to know, but clearly it increases in a nu-
clear crisis. If such a system exists — and U.S. intelligence

analysts believe it is unlikely but possible — it would mark
the first time in the nuclear era that a machine has been
readied to press the button. (Thus,] the Russian system allows
the general military staff to activate a special radio station
that enables the systems to function autonomously in firing
nuclear missiles under conditions of enemy nuclear attack."
Blair, who based his information on scores of interviews he
conducted with Russian and U.S. nuclear weapons experts, said
the United States has its own version of the doomsday machine
with less technical gadgetry and a wider distribution of launching
authority.
Meanwhile, owing to their status today as super-economic
powers, Japan and Germany are now claiming seats as perma-
nent members of the Security Council. UN Secretary-General
Boutros Boutros Ghali, in his recent visit to Tokyo told Japan
Prime Minister Miyazawa Kiichi that if Japan went along (i.e., for
Japanese troops to continue wearing the UN agency's blue beret
and patrolling the world's hot spots), there was a real chance of a
permanent seat and veto power for Tokyo on the Security Council.
The problem is that Article 9 of Japan's Constitution prohibits the
country from maintaining armed forces. Tokyo has, nevertheless,
built a quarter million-strong army, navy, and air force — simply
by calling it a "Self-Defense Force." Under pressure from abroad,
Japan has already relented and contributed 6000 soldiers to the
UN's Cambodia peacekeeping force, but they are prohibited from
combat. (Asiaweek, March 3, 1993, p. 26).
As the second-largest contributor to the UN treasury, Japan,

thus, has a strong case for becoming a permanent member of the
Security Council. Now in that select group are the victors of the
Second World War: Britain, France, Russia, China, and the U.S.
It remains to be seen, however, whether the Japanese people or
the rest of Asia, think trading the Peace Constitution for a place
in the Security Council iB a good idea. (Ibid.)
The 'Miyazawa Doctrine'

A proposal that calls for a wider security arrangement in
Asia, including China, Southeast Asia and perhaps Russia and the
United States, is the so-called "Miyazawa" Doctrine. Currently,
Japan and Southeast Asia depend on the U.S. military presence.
The proponent of the doctrine, ertswhile Japan's Prime Min-

ister Kiichi Miyazawa, posits that Japan "will not walk the path
of a military power." Said he: "If an emergency requiring a mili-
tary response arose in the region, the U.S. military role is irre-
placeable and this will not change in the forseeable future."
Expectedly, several Asian countries that suffered from
Japanese atrocities during World War II (including the Philippines)
do not want an aggressive Japanese role in the region.
The Japanse government has called for new legislation to
expand the role of the Japanese military to allow participation in
UN peacekeeping activities likely to involve use of force.
Crocker Snow, Jr., in his T h e Phoenix Spreads Its Wings"
[The World Paper, January 1993, p. 11), wrote: that ever since the
Gulf War two years ago, when Japan became one of the biggest
money lenders to the UN military effort, the Japanese have been
tortured by efforts to pass a bill allowing their Self Defense Force
to operate outside Japanese borders and territorial waters (which
under their U.S.-imposed Constitution of 1946 is prohibited). After
painful parliamentary wrangling, the first 675-person Japanese
expeditionary force has landed in Kampuchea as part of an inter-
national peacekeeping contingent. This is a step of both symbol
and substance. It is the first time that Japanese ground forces
have operated openly and officially outside their borders since the
Imperial Army and Navy dissolved in the final cataclysmic days of
World War II.
In fact, very shortly after the end of the official U.S. occupation
of Japan in November 1951, the Japanese Maritime Self Defense
Force played a significant and deliberately unheralded role in one
of the most important military events of the post-World War II
era. A small squadron of minesweepers was pressed into the service
of the U.S. Navy to lead it into Korea's heavily-mined waters off
of Inchon. This was part of General Douglas MacArthur's brilliant
surprise attack on September 15, 1950, that turned the tide of the
then near disastrous UN effort in the Korean war. Japanese sailors
were a significant (if title-known) part of this historic avent.
(Curiously, it was Japanese minesweepers again that were put to
use in the aftermath of the Gulf War). Snow Jr. continued:
T h e Germans, by contrast, have long been a key com-
ponent of N A T O , with the Bundeswehr participating fully in
N A T O exercises since 1955. Technically, the Bundeswehr can
participate anywhere in N A T O exercises. But as a legacy of

their postwar Constitution barring troop action beyond their
borders, the Germans have been sensitive to their neighbors'
fears and rarely allowed German uniforms to be seen outside
the fatherland. German anti-terrorist forces, however, have
operated beyond German borders as well. Germany's role in
N A T O has also had its own little-known historical curiosity
as unknown as Japan's role in the Korean War. At the time
of France's defeat at the hands of Ho Chi Minh's Viet Minh
army at Dien Bien Phu in May 1954, the U.S. was preoccu-
pied with the Soviet threat in Western Europe and eager for
full German military participation in A T O . The French were
understandably unenthusiastic. But they wanted desperately
to salvage something from their defeat in Indochina. A dip-
lomatic deal was struck. The U.S. would publicly support the
Catholic and French-oriented leader of the southern half of
Vietnam, Ngo Dinh Diem, in return for the French swallow-
ing their fears about Germany being allowed into the N A T O
club. In January 1955, Germany joined N A T O .
"Japan and Germany, the two nations separated by 7,000

miles that shared a martial destiny as the Axis Powers 50
years ago, are, coincidentally, sharing a more than material
destiny today. Yes, they are the second-and third-ranked
economies of the world in total G N P , and have been for al-
most 20 years. Yes, they are powerful nations that, despite
their muscle and because of their martial history, aspire [for]
proper international respect as measured for example, by a
seat [i|n the United Nations Security Council. And yes, each
nation is suffering today something more than a hiccup in its
record of unimpeded growth and prosperity. Japan is bur-
dened with an overripe stock and real estate market and the
vagaries of a political scandal that at last may undermine the
country's stolid, and stable controlling political force, the
Liberal Democratic Party. Germany, in the aftermath of di-
gesting poor East Germany, is struggling economically and
socially with eruptions of violence prompted by radical
skinheads and neo-Nazis and directed equally at Aryan and
non-Aryan immigrants from the east. But there is something
just as important as any of this in the coincidence of the two
militarily neutraled nations each taking steps now to extend
their military presence regionally, if not internationally.
"Today, as Japan is carefully planting its mat construc-

tion unit of 600 engineers in Southeast Asia (where the Japa-
nese Imperial Army did its dirty work 50 years ago), Germa-
ny's Christian Democrats and Social Democrats are dead-
locked over the issue of allowing Bundeswehr troops to get
involved in trying to quell the Serbian actins in the once and
future Yugoslavia. The governing Christian Democrats would
like to amend the Constitution to allow for both peacekeeping
missions and peacemaking missions (such as Operation Desert
Storm). The Social Democrats would like to keep the
Bundeswehr's actions restricted to the UN blue-helmeted
peacekeeping sort. It was hot-war history that caused the
defanging of these two major powers. It is post-Cold War
realpolitik that i6 turning things around."
Term of the^Na'nttrmahent Members.

The non-permanent members of the Security Council shall be
elected for a term of two years. In the first election of the non-
permanent members, however, three (half of the original 6 tempo-
rary members) were chosen for a term of one year. A retiring
10
member shall not be eligible for immediate reelection."
Number of Representatives:
"Each member of the Security Council shall have one repre-
11
sentative."
Principal Function:
"In order to ensure prompt and effective action by the
United Nations, its Members confer on the Security Council
P R I M A R Y RESPONSIBILITY for the maintenance, of inter-
national peace and security and agree that in carrying out its
duties under thiB responsibility, the Security Council acts on
11
their behalf."
'"Art. 23, No. 2. UN Charter.

" A r t . 23, No. 3, UN Charier.
" A r t . 24. No. 1, UN Charter.
Voting:
(1) procedural (not very important matters) — as amended,
nine affirmative votes (any nine)
(2) non-procedural (substantive or very important matters)
— nine affirmative votes including the concurring votes of the five
permanent members (qualified nine affirmative votes)
N O T E : Here, any of the permanent members may exercise
the so-called V E T O power. An abstention or an absence is NOT
13
considered a veto.
(3) the determination or characterization of whether a
question is procedural or non-procedural is by itself a N O N -
PROCEDURAL question (substantive question) and consequently,
this makes possible also the exercise of the V E T O POWER.
NOTE: Because of this, the so-called DOUBLE V E T O may be
exercised:
(a) a permanent member may cast a first veto on the
question of characterization. Hence while all the rest may
say the matter is procedural, a permanent member may say
N O . (Hence the matter will be regarded as substantive or
non-procedural).
(b) Having declared the matter non-procedural, the
question may now be submitted to another voting (this time,
on the M E R I T S ) . Here again, the permanent member in No.
( a ) may V E T O any proposed action. (Hence, the name
"DOUBLE V E T O " — a first veto on characterization and a
1
second veto on the merits). *
NOTE:
The following are generally regarded as among the "proce-
dural" questions: ''i^t
(1) establishment of subsidiary organs;
(2) rules of participation and procedure in discussions; and
(3) organization of meetings.
"See Repertoire of the Practice of the Security Council, 1946-1951. pp. 170-
176.
"See Ibid., pp. 154-155.
Upon the other hand, decisions involving ENFORCEMENT

measures are non-procedural and, therefore, very important.
Dependent Bodies of the Security Council

These include, inter alia:
1. the United Nations Disengagement Observer Force
(UNDOF);
2. the United Nations Peacekeeping Force in Cyprus
(UNFICYP);
3. the United Nations Interim Force in Lebanon ( U N I F I L ) :
4. the United Nations Military Observer Group in India
and Pakistan ( U N M O G I P ) ; and the
5. the United Nations Truce Supervision Organization
(UNTSO).
Added to this list are the United Nations Observer Forces in
Iraq, Yugoslavia, and in many other areas of the world.
THE ECONOMIC AND SOCIAL COUNCIL (ECOSOC)
Composition:
"Art. 61, UN Charter:
"(1) The Economic and Social Council shall consist of
18 (now, 54, under the Amendment) members of the United
Nations elected by the General Assembly.
"(2) Subject to the provisions of paragraph 3, six (now,
nine) members of the Economic and Social Council shall be
elected each year for a term of three years. A retiring member
shall be eligible for immediate reelection.
"(3) At the first election, eighteen members of the
Economic and Social Council shall be chosen: The term of
office of six members so chosen shall expire at the end of one
year, and of six other members at the end of two years, in
accordance with arrangements made by the General Assembly.
(Under the amendment, there now consist groups of 9.)
"(4) Each member of the Economic and Social Council
shall have one representative."
Some Important Functions:

(1) To make or initiate studies and reports with respect to
international, economic, social, cultural, educational, health and
related matters to the General Assembly, to the Members of the
United Nations, and to the specialized agencies concerned;
(2) To make recommendations for the purpose of promoting
respect for, and observance of, human rights and fundamental
freedom for all; and
(3) To call international conferences on matters falling
15
within its competence.
Voting:
(1) Each member of the Economic and Social Council shall
have one vote.
(2) Decisions of the Economic and Social Council shall be
16
made by a majority of the members present and voting.
THE TRUSTEESHIP COUNCIL

UN Trusteeship Council
This Council supervises territories administered by various
nations and placed under an international trusteeship system by
the United Nations. Each nation is charged with developing the
self-government of the territory and preserving and advancing the
cultural, political, economic, and other forms of welfare of the
people.
Composition
The Trusteeship Council is currently composed of 5 members:
1 member — the United States — that administers a trust terri-
tory, and 4 members — China, France, Russia and the United
Kingdom — that are permanent members of the Security Council
17
but do not administer trust territories.
,s
" A r t . 67. UN Charter.
" T h e membership ie akin to the UN Security Council's Permanent Mem-
The following countries ceased to be administering members

because of the independence of territories they had administered:
Italy and France in 1960, Belgium in 1962, New Zealand and the
United Kingdom in 1968, and Australia in 1975. France and the
U.K. became non-administering members. As of January 1, 1994,
there was only one trust territory: the Trust Territory of the Pa-
cific Islands (administered by the United States).
Voting
(1) Each member of the Trusteeship Council shall have one
vote.
(2) Decisions of the Trusteeship Council shall be made by a
1
majority of the members present and voting. "
Functional Commissions
1. Statistical Commission (SC)
2. Population Commission (POPCOM)
3. Commission for Social Development (CSD)
4. Commission on Human Rights (CHR)
5. Commission on the Status of Women (CSW)
6. Commission on Narcotic Drugs ( C N D )
Regional Commissions
1. Economic Commission for Europe (ECE)
2. Economic and Social Commission for Asia and the
Pacific (ESCAP)
3. Economic Commission for Latin America and the Carib-
bean (ECLAC)
4. Economic Commission for Atrica (ECA)
5. Economic and Social Commission for Western Asia
(ESCWA)
'•Art. 89. UN Charter.

Functions:
(1) In the so-called strategic areas (designated in trustee-
ship agreements), the Trusteeship Council assists the Security
1
Council in political, economic, social and educational matters. "
(2) In general, however, the Trusteeship Council helps the

General Assembly in:
(a) considering reports submitted by the Administer-
ing Authorities;
(b) accepting petitions and examining them in consul-
tation with the Administering Authorities;
(c) providing for periodic visits to the respective trust
.territories at times agreed upon with the Administering
Authority; and
(d) taking these and other actions in conformity with
20
the terms of the trusteeship agreements.
(3) The Trusteeship Council shall formulate a questionnaire
on the political, economic, social, and educational advancement or
the inhabitants of each trust territory; and the Administering
Authority for each trust territory within the competence of the
General Assembly shall make an annual report to the General
21
Assembly upon the basis of such questionnaire.
(4) To insure that there is no overlapping and to set up
commissions to deal with economic conditions and collect facts and
figures on conditions over the world.
(5) To issue studies and reports and make recommendation
to the Assembly and specialized agencies.
INTERNATIONAL COURT OF JUSTICE

N O T E : This matter is discussed under the Chapter on Rem-
edies and Sanctions.
" A r t . 83. No. 3. UN Charter.

w
a,
A r t . 88. UN Charter.
THE SECRETARIAT
Com position:
The Secretariat shall consist of a Secretary-General and such
staff as the Organization ( U N ) may require. The Secretary-General
shall be appointed by the General Assembly upon the recom-
mendation of the Security Council. He shalt be the chief admin-
22
istrative officer of the Organization.
NOTE:
(1) The first Secretary-General was Mr. Trygvie Lie of Oslo,
23
Norway. The official nomination of Mr. Lie by the Security Council "
was approved by the General Assembly on February 1, 1946, by a
ra
vote of 46 to 3. He resigned on Nov 10, 1952. On March 31, 1953,
his successor Mr. Dag Hammarskjold of Sweden was nominated
by the Security Council, a nomination approved by the General
2
Assembly one week later. * On Sept. 18,1961, Hammarskjold died
in a mysterious airplane crash. He was then on his way to attend
a conference with President Moise Tshombe of Katanga, in an
effort to help solve the Belgian Congo Crisis. The next Secretary-
General was Mr. U Thant followed by Kurt Waldheim, an Aus-
trian.
(2) Apparently irritated and annoyed by Mr. Hammarskjold's
way of settling international crises (Russia erroneously thought
that the Secretary-General leaned in favor of the Western De-
mocracies), Russia proposed the Troika Plan of having THREE
Secretaries-General (one to represent the Western Democracies,
the second, to represent the Communist countries, and the third
to represent the N E U T R A L I S T countries), each of whom could
V E T O the actuations or proposals of either of the other two (the
T R O I K A VETO). The proposal, however, was received coldly, and
since then has not been insisted upon by Russia.
(3) The incumbent secretary-general of the United Nations is
Boutros Boutros Ghali, the former deputy prime minister of Egypt.
Ghali, who assumed his new UN position on January 1, 1992,
is a specialist in international law and is best remembered as
" A r t 97, UN Charier.

"•Schwebel. The Secretary General of the United Nations, p. 53.
" M i l l e r , Dag Hammarskjold and Crisis Diplomacy, p. 12.
"Ibid., p. 22
65S I N T E R N A T I O N A L L A W A N D W O R L D POLITICS
among the key players in the talks that led to the Egypt-Israel
peace treaty otherwise known as the 1978 Camp David accords. As
the UN's sixth secretary-general, he receives a $195,000 salary per
annum. He succeeds Javier Perez de Cuellar, a Peruvian, who
served two five-year terms.
Principal Functions
(1) The Secretary-General is the Chief Administrative Officer
2
of the UN Organization. *
(2) The Secretary-General shall act in that capacity in all
meetings of the General Assembly, of the Security Council, of the
Economic and Social Council, and of the Trusteeship Council, and
shall perform such other functions as are entrusted to him by
these organs. The Secretary-General shall make an annual report
26
to the General Assembly on the work of the Organization.
(3) The Secretary-General may bring to the attention of the
Security Council any matter which in his opinion may threaten
21
the maintenance of international peace and security.
NOTE: The practice of sending a special memorandum to the
Security Council on matters before it— and of taking a position
(siding or agreeing with one country or group)—was introduced by
Mr. Trygvie Lie in connection with the Iranian Case (1946). Since
then this "intervention" has been more or less tolerated.-"
Restrictions
In the performance of their duties, the Secretary-General and
the staff shall not seek or receive instructions from any government
or from any other authority external to the Organization. They
shall refrain from any action which might reflect on their position
w
as international officials responsible only to the Organization.
NOTE: To precisely avoid the use of undue influence, the UN
generally has no inclination to select a Secretary-General lhat
•''Art. 97, UN Charier.

X
AH. 98, UN Charter.
" A r t . 99, UN Charter.
M
S e e Miller, op eit.. p. 17.
" A r t . 100, No. 1. UN Charter.
would come from the five Permanent Powers, or from the N A T O

countries (since the candidate would no doubt be vetoed by Russia)
or from Communist regions or from Latin-American nations (since
these are sufficiently numerous in the Assembly). The choice is,
therefore, usually confined to Scandinavian, Asian, and Arab
1U
countries.•
HOW THE UN CHARTER MAY BE AMENDED

Amendments to the UN Charter may be made thru the steps
indicated in Arts. 108 and 109 ( 1 , 2, and 3) of the Charter:
Art. 108. Amendments to the present Charter shall come
into force for all Members of the United Nations when they
have been adopted by a vote of two-thirds of the members of
the General Assembly and ratified in accordance with their
respective constitutional processes by two-thirds of the
Members of the United Nations, including all the permanent
members of the Security Council.
Art. 109. 1. A General Conference of the Members of the
United Nations for the purpose of reviewing the present
Charter may be held at a date and place to be fixed by a two-
thirds vote of the members of the General Assembly and by
a vote of any nine members of the Security Council. Each
Member of the United Nations shall have one vote in the
conference.
2. Any alteration of the present Charter recommended
by a two-thirds vote of the conference shall take effect when
ratified in accordance with their respective constitutional
processes by two-thirds of the Members of the United Na-
tions, including all the permanent members of the Security
Council.
3. If such a conference has not been held before the
tenth annual session of the General Assembly following the
coming into force of the present Charter, the proposal to call
such a conference shall be placed on the agenda of that session
of the General Assembly, and the conference shall be held if
so decided by a majority vote of the members of the General
"'See Miller, op. cit., p. 21.

Assembly and by a vote of any seven members of the Security

Council.
NOTE: For amendments to the Statute of the Interna-
tional Court of Justice, we have Arts. 69 ant 70 of B a i d
Statute:
Art. 69. Amendments to the present Statute shall be
effected by the same procedure as is provided by the Charter
of the United Nations for amendments to that Charter, subject,
however, to any provision which the General Assembly upon
recommendation of the Security Council may adopt concerning
the participation of States which are parties to the present
Statute but are not Members of the United Nations.
Art. 70. The Court shall have power to propose such

amendments to the present Statute as it may deem neces-
sary, thru written communications to the Secretary-General,
for consideration in conformity with the provisions of Article
69.
UNITED NATIONS UNIVERSITY (UNU)

Established in 1973, with the approval of its Charter by the
UN General Assembly, the United Nations University or U N U
began operations in September 1975 as an autonomous institution
within the framework of the U N .
The aims and activities of U N U are two-fold:
One. To promote scholarly international and scientific coop-
eration to help solve urgent global problems.
Two. To strengthen research and training capabilities in
developing countries in order to address global problems via its
academic institutions, individual scholars, and research and
training centres. (Already, U N U has established three research
and training centres: one for development economics research
[Finland]; one for natural resources [Africa, in Coted d'lvoire]; and
one for new technologies [The Netherlands]).
The University's priority areas of concern under its Second

Medium-Term Perspective for 1990-1995 are:
(a) universal human values and global responsibilities;
(b) new directions in the world economy;
(c) sustaining global life-support systems;

(d) advances in science and technology; and
(e) population dynamics and human welfare.
U N U is headquartered in Tokyo, Japan.
HAGUE ACADEMY OF INTERNATIONAL LAW
The Hague Academy of International Law (Academic de droit

international de La Haye) is widely acknowledged by academicians
and diplomats all over the world as the foremost school of inter-
national law today.
Founded in 1923 with the financial support of the Carnegie
Endowment, this prestigious academy of learning is an institution
designed for the study and teaching of Public and Private (Conflict
of Laws) International Law and related subjects. Its purpose is to
encourage a general overview and impartial examination of the
problems arising from international relations in the field of law.
Along this line is the Academy's Centre for Studies and Research
in International Law and International Relations, the distin-
guishing features of which lie in the personal and effective par-
ticipation of members in scientific work. This is open to those
possessed of advanced academic degrees, the Academy's Diploma,
or proof of at least three years' actual practice in international
affairs.
No doubt about it, the Hague Academy is, in truly continental

fashion, for in its areas of specialization, the alumni are among
the best in dealing with complex issues of international law.
These specialized areas, including: International Trade, In-
ternational Organizations, International Finance and Banking, and
International Protection of Human Rights — are conducted (lec-
tures and workshops) at the Peace Palace (Palais de la Paix) at the
Hague, Netherlands (Holland).
This historic edifice houses the International Court of Justice,
the Permanent Court of Arbitration, and the extensive Andrew
Carnegie Library. The Peace Palace, because of the central geo-
graphical location, is also the situs of various international con-
gresses and treaty conventions.
Levity aside, the enormous problems of international law affect
one and all. First and foremost, they concern those whose function
has an international aspect, whether it is as participants in politi-

cal life, as diplomats or political scientists, as teachers or as
spokesmen for international peace and understanding. We have
been witness on how international law today expands to every
conceivable field and becomes a frame around continuing inter-
national cooperation. But we have also seen how much remains
before nations can live in security and justice protected by a modem,
effective network of international local rules.
If one should, therefore, ask how the Hague Academy of In-
ternational Law, apart from its principal function of providing
lectures in its hallowed halls, has contributed to the spread of the
knowledge and to the development of international law, the re-
sounding answer would be: first, by its completely international
structure and composition, which are in themselves unique for
such a school of learning, and second, by the publication in a se-
ries of volumes, known as the Recueil des Cours, or Collected
Courses of the Academy, of the texts of the course offerings since
the inception of these lectures in 1923. The published lectures,
needless to say, constitute a valuable record of the development of
international law and are available for reference and study in
libraries and government departments worldwide.
The Academy has, during its half a century and a decade of

history, tried to contribute to a better understanding of interna-
tional law and its function to universities in far-flung countries,
via what has been referred to as a sort of "missionary zeal" in the
Held of international law.
It is worthwhile to stress at this juncture that the Academy
is an institution which is independent from any government and
is primarily financed by private foundations in various countries.
It is also worth recording that the so-called "cold war" has never
hindered the close collaboration of lawyers, both from the East
and the West, who continued to be called to the Academy on the
sole basis of their scientific competence.
The Academy has every reason to be proud of its heritage,

that in these many years, international lawyers from communist
(socialist) and non-communist (democratic) countries alike, never
hesitated to lecture and participate side by side here on the same
programme. It is without reservation, therefore, that the Academy
has rightly earned a scientific and academic reputation nonpareil;
it has responded to a felt need; and in its achievements, has been
preeminently successful.
THE UNITED N A T I O N S ORGANIZATION
For world peace and security are not possible in the long run
until and unless the nations and their leaders are imbued with
consuming interest for, knowledge of, and respect for, right and
justice in the community of nations.
The Academie de droit international de La Haye forms as you
have realized by now, part of the history of the development of
international law and so, also of the growth however hesitant,
however slow, of a global legal order. For that matter, one of this
book's authors is extremely proud to be a product of this first-of-
its-kind world institution of learning.
SOME RECENT CRISES THE UN HAS TRIED TO SOLVE

(1) Berlin Crisis
After the defeat of Germany in World War I I , it was for
purposes of military occupation divided into four Zones, each oc-
cupying power being allocated one Zone (the American Zone, the
English Zone, the French Zone, and the Russian Zone). Berlin, the
capital was, however, to be administered jointly by the four Pow-
31
ers. Berlin, although divided into four Sectors, each under a
Commander, was smoothly functioning under the Inter-Allied
Control Council, when surprisingly, on June 24, 1947, the Russian
Commander of the Russian Sector decided not to recognize the
actuations of the Control Council. By July 1, 1948, cooperation
had ceased between the three Western Sectors (West Berlin) and
the Eastern Sector (East Berlin) and the Temporary Constitution
of Berlin (which had beeh previously approved by the Four Powers
in 1946) was no longer followed in the East Berlin (controlled by
the Russians). In the meantime; the Western Zones of Germany,
(American, English, and French) formed the Federal Republic of
Germany (this included West Berlin, by virtue of the Third
Transitional Law passed by the German Bundestag on January 4,
1952); Upon the other hand, the Eastern Zone held by Russia
became the German Democratic Republic (East Germany). Although
East Berlin was not formally incorporated into East Germany, all
important legislative enactments of the latter was extended into
32
the former, usually by East Berlin legislation. As a result of
^'Protocol of Sept. 12. 1994 among the U.S.. Russia, and England; Agree-
ment of May 1, 1945 among the U.S., Russia, England, and France.
yi
Tke Berlin Wall: A Defiance of Human Rights, International Commission
of Jurists. Geneva, March 7, 1962, p. 26.
growing differences between the Western Powers and Russia, the

latter had cut off land communications between the Zones of the
Western Powers and West Berlin (The Berlin Blockade of Sept.,
1948). The blockade was, however, broken by air-lift operations by
the Western Democracies which were able to drop from the air
supplies for West Berlin. Russia was thus forced to lift the
33
blockade. To prevent East German residents from going to West
Germany, an 859-mile long "closed area" was decreed by the
Russian authorities all along the border of the two Germanies;
however, it was still comparatively easy for residents in East Berlin
to go to West Berlin, particularly for "short visits." Berlin, thus,
became a "Freedom Gate" thru which disgruntled East German
citizens could pass to the free world. Annoyed by the migration
and "escape" of East Germans thru Berlin, the Russian authorities
decided to erect the "Berlin Wall" on August 13, 1961 (26 miles of
border between East and West Berlin; height varied from 7 to 13
feet; in addition to the Wall, there were wire fencing and barbed
wire entanglements), and passage was prohibited except on a
"special permit" (which was, however, been very rarely granted).
This "Wall" clearly defies human rights, more particularly,

34
an individual's "right to leave any country, including his own."
Incidentally, it should be stated that in 1960, Nikita Khrushchev
of Russia had already alleged that geographical logic dictated that
the entire Berlin (East and West Berlin) ought to belong to East
Germany (because practically the whole of Berlin is inside the
geographical limits of East Germany); he, therefore, gave an "ul-
timatum" to the Western Democracies to leave West Berlin within
six months. At the end of the period, however, nothing happened.
The N A T O , as a matter of fact, warned Russia that any attempt
to take over West Berlin would invite an armed conflict with the
Powers of the N A T O .
In connection with the erection of the "Berlin Wall," the
35
Declaration of the Congress for Cultural Freedom, read:
"It is one thing for a social order to force its citizens, by
the millions, to seek asylum elsewhere. It is still more rep-
rehensible to cut off their escape by means of walls and barbed
^Coyle, The United Nations, p. 93.

M
S e e Clause 13, par. 2, Universal Declaration of Human Rights.
Âugust 29. 1961.
wire across city streets, to threaten them at the point of

bayonets, to shoot at them in flight as if they were runaway
slaves. This is not a matter of politics or ideology or of social
philosophy. It is a matter of the most elementary respect for
human rights — and one which all the nationals of the civilized
world are in accord as having recognized. The Universal
Declaration of Human Rights, which was adopted by the
General Assembly of the United Nations, states this right
36
unequivocally. "Everyone has the right to leave any country,
including his own . . . "
Indeed, as the International Commission of Jurists puts its
"The Wall that prevents the citizens of the German Democratic
Republic and East Berlin from choosing freedom cannot conceal
the injustice perpetrated behind it. Its construction thru the heart
3
of the city has neither legal nor moral justification." '
But on November 9, 1969, several weeks after the resigna-
tion of East Germany's longtime Communist leader, Erich
Honecker, the wall's designer and chief defender, the East German
government opened its borders to the West and allowed thousands
of its citizens to pass freely thru the Berlin Wall. The fall of the
Communist government in East Germany left only Soviet objections
to German reunification to be dealt with. Soviet objections to a
reunified Germany belonging to N A T O were dropped in return for
German promises to reduce their military economic cooperation
with the Soviet Union.
On February 13, 1990, the four major World War II allies
agreed on a framework for negotiating the reunification of German
after a 45-year division. The swift pace of agreement on the
framework indicates that reunification could be a much nearer-
term goal than anyone anticipated Reunification will have profound
effects on the heretofore separate West and East German gov-
ernments, Europe, and international politics generally. Already,
Bonn is picking up a considerable tab for the economic costs as-
sociated with reunification. (Joan Johnson-Freese, "Can Germany
Afford Reunification and a Space Program too?," Technology in
Society, Vol. 12, No. 4, 1990, pp. 355-356).
"Clause 13, par. 2.

"The Berlin Wall, supra. 1962, p. 46.
The day after the wartime allies announced reunification plans

in Ottawa, Bonn approved a supplementary budget of $4.1 billion
in aid to East Germany until reunification can be achieved. There
was also another $1.2 billion earmarked for specific uses, ranging
from business credits to currency exchanges. (Ibid., p. 361).
More critically, it indicates the kind of near-term financial
commitment that will be necessary for reunification to be achieved.
As much as $300 billion will be necessary in order to overhaul the
East German economy. (See R. Knight, "The Arithmetic of Unify-
ing Germany," U.S. News & World Report, Mar. 5, 1990, p. 42).
Other European countries such as France and Britain are already
worrying that in the long term, reunification could make the al-
ready economically dominant West Germany rich and powerful
enough to comprehensively dominate European affairs. (Joan
Johnson-Freese, op.cit., p. 361).
In the opinion of Dr. Joan Johnson-Freese, an associate pro-
fessor of political science at the University of Central Florida,
"|m]ost Germans seem to feel that reunification is culturally and
politically desirable, and with as many as 1,800 East Germans
relocating in West Germany every day, it is now apparently inevi-
table. [AndI [ulntil complete integration occurs, Bonn will clearly
be responsible for all German citizens, [although] [i)n the long term,
a reunited Germany can be an even greater economic giant than
it is now." (Ibid., pp. 362, 367).
In ceremonies beginning on the evening of Tuesday, Oct. 2,

1990, and continuing throughout the next day, the German Demo-
cratic Republic acceded to the Federal Republic and Germany
became a united and sovereign State for the first time since 1945.
Some 1 million people gathered at midnight Oct. 2 at the Reichstag
in Berlin. At midnight, a replica of the Liberty Bell, a gift from the
U.S., rang, and unity was officially proclaimed. Following unifica-
tion, the Federal Republic became the second largest country in
Europe, after the Soviet Union.
The new Parliament convened on Jan. 1991, with Helmut

Kohl elected as chancellor. (He has occupied the position since
1982). On June 20, the German Parliament officially voted in favor
of moving the seat of the federal government to Berlin, although
given the huge expense of such a move, it would be done slowly
and require 12 years before Berlin would be a fully functional
federal capital.
(2) South Africa and Apartheid

As a State-imposed system of institutionalized racial dis-
crimination and segregation, apartheid, has been practised by South
Africa as an official policy since 1948.
Under apartheid, black South Africans — the overwhelming
majority of the people of the country — are denied fundamental
rights and liberties; they are not allowed to participate in the
political life of the country and are subject to hundreds of repressive
laws and regulations.
Both the General Assembly and the Security Council, re-
spectively, have declared apartheid incompatible with the UN
Charter. The Assembly has condemned apartheid as a crime against
humanity, and the Security Council, which has considered the
question since 1960, has termed apartheid a crime against the
conscience and dignity of mankind.
For instance, in December 1988, the General Assembly
criticized some States for continuing their economic relations with
South Africa, and others who exploited the opportunities created
by sanctions imposed by other States. It called on those States
which had increased their trade with South Africa to sever all
trade relations.
On April 1989, the Inter-Governmental Group to Monitor the
Supply and Shipping of Oil and Petroleum Products to South Africa
and the Special Committee Against Apartheid, recommended that
the Security oil embargo and that all oil-producing, shipping and
handling States should enact legislation to stop the flow of oil to
South Africa.
By mid-December 1992, South Africa President F.W. de Klerk
has called for elections for a non-racial interim government and
constituent assembly by April 1994. The African National Congress
( A N C ) said it hoped democracy negotiations could be speeded up
to allow South Africa to hold its first all-race elections. Communist
Party leader and close A N C ally Joe Slovo said: "In general, there
seemed to be a serious recognition on all sides on the need to begin
walking the last mile."
Thus, "for the first time since the signing of the UN Charter
(in 19451. a head of State from South Africa has appeared at the
United Nations. PreB. De Klerk Bpoke at the U N after his par-
liament approved a law giving blacks an official Bay in the gov-
eminent. [By mid-October 1993], South Africa has thrown off the
vckt of racial discrimination and has rejoined the community of
; a inns. White separatists have thankfully shrunk to a political
minority, although they are vociferously protesting the new law in
parliament and called De Klerk 'a despicable traitor.' [E]xpected[]y]
sanctions will be lifted against South Africa and a South African
delegation will soon be allowed to return to the General Assembly."
(Beth Day Romulo, T h e Death of Apartheid," Manila Bulletin, Oct.
14, 1993, p. 10).
Along this line, Nelson Mandela and F.W. de Klerk won the
Nobel Peace Prize on October 15, 1993 for working "to peacefully
end apartheid" and for pushing South Africa toward democracy.
"By looking ahead to South African reconciliation, instead of balk
at the deep wounds of the past, they have shown personal integrity
and great political courage," the Norwegian Nobel Committee said
in awarding the $625,000 prize to be shared by the two men.
De Klerk, who descended from generations of white con-

servative Afrikaners, changed the course of history when he became
president in August 1969. He immediately began dismantling the
apartheid lawB of race division and white privilege and offered the
majority blacks a role in governing their country. Upon the other
hand, Mandela, leader of the African National Congress, emerged
without bittemes from 27 "long, lonely, wasted years" in prison in
1990, saying his goal was the same as it had been when he launched
the ANC guerilla wing in 1960: "A democratic, non-racial South
Africa." Both Mandela and De Klerk said that their winning the
Nobel Peace Prize is "an acknowledgment of the role of the gov-
ernment and the A N C to pull South Africa from apartheid to
democracy." Manila Bulletin, "Mandela, Klerk Win Nobel Prize,"
Oct. 156, 1993, pp. 1, 8).
Meanwhile, a democractic South Africa led by Mandela would

act as a bridge between industrialized and underdeveloped coun-
tries, according to a blueprint of his party. A foreign policy document
being drawn up by Mandela's A N C sees South Africa ridding itself
of pretensions to being a Western power. Instead, it would take its
full place in the underdeveloped South, where it could use its First
World ties to act as an interlocutor on development with the in-
dustrialized North. Thereupon, A N C foreign policy would stand on
six (6) basic principles: (1) the pursuit of human rights; (2) pro-
motion of democracy worldwide; (3) adherence to justice and in-
ternational law; (4) the peaceful solution of conflict; (5) the reflection
T H E UNITED N A T I O N S ORGANIZATION 669
of African interests; and (6) the growth of regional and interna-

tional economic cooperation. (See Business World, "ANC's South
Africa: Pariah to Good Neighbor, Oct. 15, 1993, p. 9).
(3) Cambodian Crisis
A bloodless coup toppled Prince Norodom Sihanouk in 1970.
It was led by Lon Nol and Prince Sisowath Sink Matak, Sihanouk's
cousin. Sihanouk moved to Peking to head a government-in-exile.
On October 9, 1970, Lon Nol proclaimed himself President.
The Lon Nol regime was overthrown in April 1975 by Pol Pot,
a leader of the Communist Khmer Rouge forces, who instituted a
xenophobic reign of terror. Pol Pot was in turn ousted on Jan. 8,
1979, by Vietnamese forces. A new government led by Heng Samrin
was installed.
At a meeting in Kuala Lumpur, Malaysia, on June 22, 1982,
Sihanouk formed an alliance with Son Sann, his former prime
minister, and Khieu Samphan, Pol Pot's representative, to oppose
the Heng Samrin regime installed by Vietnam. While Sihanouk
remained in exile, about 9,000 non-communist troops loyal to him
and another 15,000 under Son Sann joined about 35,000 commu-
nist Pol Pot forces fighting the 170,000 Vietnamese troops sup-
porting the Heng Samrin government. The Cambodian insurgents
suffered a major defeat in Mar. 1985 when Vietnamese forces
overran their camps in Cambodia and forced them into Thailand.
The Vietnamese Plan originally called for them to withdraw
by early 1990 and negotiate a political settlement. The main is-
sues were the level of inclusion of the Khmer Rouge, with their
record of atrocities, in any new government, the organization and
powers of the United Nations in the transition. The talks, how-
ever, stalled thru 1990 on into 1991 with no clear resolution in
sight. A continuation of the mid-1991 ceasefire appeared shaky as
the warring parties alleged violations by their opponents. (See The
1992 Almanac, pp. 161-162).
On October 23, 1991, however, the Cambodian government
and leaders of 3 rebel factions signed a peace treaty in Paris, that
gave promise of ending the long aimed struggle for control of the
Southeast Asian country. Representatives of 18 other nations,
including the U.S., the then Soviet Union, and China, also signed
the treaty. During an interim period, United Nations personnel,
both military and civilian, would overeee a transition during which
the factions would largely disarm. Prince Norodom Sihanouk, a
former ruler of the country, would serve as provisional leader of

Cambodia during the transition. Under the Treaty, 350,000 refugees
would be repatriated.
The Far Eastern Economic Review, in its editorial "New World
Disorder" (December 3, 1992 issue, p. 3), said it all:
"Little more than a year after diplomats in Paris toasted
a new peace plan for Cambodia, that agreement is coming
apart at the seams. By any definition, including its own, the
UN-organized effort has been a flop, and there is little pros-
pect for better things tomorrow. To the contrary, in its short
stay the UN Transitional Authority in Cambodia (UNTAC)
has managed to partially disarm everyone but the Khmer
Rouge, the net result of which is to leave them relatively
strengthened against the other three Cambodian factions.
Indeed, in the time since the Khmer Rouge affixed its sig-
nature to the peace document it has actually expanded the
territory under its control.
"That the Khmer Rouge would instantly set about sabo-

taging an agreement designed to discredit them comes as no
surprise. What is surprising is that anyone ever believed for
one moment that a few thousand harmless UN supervisors
and the promise of a vote would have the Khmer Rouge lying
down with the lambs. As a new world order dawns, the
breakdown of the Cambodian peace plan ought to occasion
grave second thoughts not only about that long-suffering
nation but about...the h a r d interests of countries in the line
of fire. In Cambodia, the existing Hun Sen government in
Phnom Penh has been deemed illegitimate because of its
Vietnamese sponsors. Even more important is the obstacle
presented by neighboring Thailand. As w i t h all the other
actorB in this drama, the Thais h a v e long-standing griev-
ances and interests that explain, though not excuse, their
connivance w i t h the Khmer Rouge. Lasting peace cannot be
had by papering over these competing interests.
"The UN secretary-general has decided against the im-

position of sanctions against the Khmer Rouge, which controls
a booming business in gems and logging along the Thai border.
But even if the UN eventually agrees on sanctions, they will
not work without a genuine and concerted effort from Bangkok.
This is highly unlikely to be forthcoming, and not just because
the Thai firms making a fortune enjoy close ties with gov-
ernment and military figures. Historically, Thais have fought

the Vietnamese for control of Cambodia, and, operating on
the old principle that the-enemy-of-my-enemy-is-my-friend,
their cold-blooded assessment of the Khmer Rouge is that it
serves as a check on Vietnamese ambitions. They also know
that the Thai army is probably not up to the task of defending
Thais should they upset the Khmer Rouge into action. Better
to wink than take them on.
"In the short term this has some brutal logic, but
Thailand's longer-term interest lie in the opposite direction.
For one thing, Pol Pot and his ageing cohort will not be around
forever, and when Cambodia ultimately does come back to
normal, Cambodians are not going to look kindly on a neighbor
that aided and abetted those responsible for the murder of
more than a million of their countrymen. For another, should
the Khmer Rouge return to Phnom Penh, there is the
guarantee of thousands of fresh refugees pouring into Thai-
land and the potential for a re-run of the 1970 'ethnic
cleansing' of Vietnamese living in Cambodia. Should that
happen, there is no ruling out another invasion from Vietnam.
"In short, Thailand has to start thinking about the

Frankenstein it is creating next door. As Thai commentator
Kavi Chongkittavong has argued, angering the Khmer Rouge
is not without its costs but it is preferable to a Cambodia in
turmoil and the long-term ill-will bound to result from cur-
rent policy. As for the U N , if it cannot persuade the Thais to
accept a peace within its own interests, what Cambodian will
believe it capable of forcing the Khmer Rouge to accept terms
that would mean its own demise?"
In early December 1992, Khmer Rouge, the genocidal Com-

munist faction arrested six unarmed United Nations peacekeepers,
accusing them of being spies for the Phnom Penh government. The
evident Khmer Rouge purpose was to see whether they can get
away with busting the UN-sponsored peace plan. The Security
Council has been taking a cautious incremental approach to Khmer
Rouge violations. So the Khmer Rouge refuse to open up areas
they control for preparations for the May elections? The United
Nations will go ahead in other areas with the other three factions.
Meanwhile it will try to cut off oil imports to and lumber exports
from Khmer Rouge territory. For the latter mission it will need
the cooperation, so far unavailing, of the Thai generals who profit
from the lucrative lumber, gem and drug trades. Perhaps the United
Nations, by calling the bluff of the Khmer Rouge and credibly
threating to isolate them, will persuade them to back off. In these
circumstances it might help if the Khmer Rouge knew that the
United Nations was mulling other choices. The ruling Cambodian
People's Party ( C P P ) . nevertheless, continued to threaten to reject
the results of the election designed to end a quarter century of
political brutality and bring the country to democracy. The CPP
claimed there were voting irregularities in the election. It made
the claim after the royalist F U N C I N P E C party emerged as the
leader in the count. With nearly 90 percent of votes counted,
F U N C I N P E C had 1,530,755 votes, or 45.7 percent; the CPP,
1,277,759, or 38.1 percent, and the Buddhist Liberal Democratic
Party ( B L D P ) , 125,803, or 3.7 percent. According to unofficial com-
putations of the proportional representation system, this result
will given around 57 National Assembly seats to F U N C I N P E C
and 52 to the CPP. The computations give the B L D P of former
premier Son Sann as many as 10 seats and the rightwing Molinaka
Party, one.
The National Assembly recently adopted a constitution, with

a two-thirds majority, and then formed a government. On June 2,
1993, the UN Security Council passed a resolution calling on all
parties to honor the results of the election.
With 22,000 UN peacekeepers and more than $2 billion in
operational costs, the UN peace plan for Cambodia has indeed
moved forward with a general election in 1993 as warring Cambo-
dian faction leaders have compromised in the face of international
pressure. To a gradual extent, the peacekeepers have left a void.
Altogether with traditional Khmer factionalism, conflict-ori-
ented Kilmer's socio-psychological-cultural traits, a history of for-
eign patronage, the existence of the Khmer Rouge, and a historical
Vietnamese involvement in Khmer affairs, the road to peace, de-
mocracy, and human rights have demanded almost two years of
UN presence, a new Constitution signed on Sept. 24, 1993, a sin-
gle election, and a new king, Norodom Sihanouk.
Surely, the road to liberal democracy in Cambodia will be
long and difficult. Arguably, an extended UN trusteeship over
Cambodia has allowed time for change, and for the emergence of
new faces and new ideas for nation-building and with the UN
peace plan necessarily a bridge to arrive at this goal; peace, of
course, i6 the prerequisite, particularly to those who have at last
T H E UNITED NATIONS ORGANIZATION 673
presented Cambodia with an opportunity for change. (See

Abdulgaflar Peang-Meth, T h e United Nations Peace Plan, the
Cambodian Conflict, and the Future of Cambodia," Contemporary
Southeast Asia, Vol. 14, No. 1, June 1992, p. 33). To hold other-
wise, the war of ballots, may prove as deadly as the war of bullets,
has surely been.
On Oct. 1, 1993, the Khmer Rouge offered to stop fighting

and start talking about peace as the guerrillas' nominal leader
Khieu Samphan declared his suppport for the new King Sihanouk.
Said he: "We the DK (Democratic Kampuchea Party (Khmer Rouge),
as well as the whole Cambodian nation and people, wish the new
Constitution be respected and implemented by everyone in its spirit
and in its letter, especially its Article 1, and Article 52." (Manila
Bulletin, "Khmer Rouge Offers Ceasefire," Oct. 2, 1993, p. 3).
Article 1 of the (Cambodian) Constitution defines Cambodia
as a sovereign, independent, peaceful, permanently neutral and
non-aligned kingdom. And Art. 52 provides that the State should
protect these tenants, adopt a national reconciliation policy, and
ensure public order and security to improve living standards for
Cambodians.
(4) Lebanon Crisis
Tension along the Israel-Lebanon border increased in 1972.
Israel, which stated that it was acting in reprisal for raids carried
out on its territory by Palestinian commandos, attacked Palestinian
camps in Lebanon. In April 1972, at Lebanon's request and in
accordance with a Security Council decision, a ceasefire observa-
tion operation was set up by U N T S O ( U N Truce Supervision
Organization) in the Israel-Lebanon sector. Another UN peace-
keeping force was set up in March 1976 after Israeli forces invaded
southern Lebanon following a Palestinian commando raid into
Israel. The Security Council called on Israel to cease immediately
its military action against Lebanon's territorial integrity, and it
established the UN Interim Force in Lebanon ( U N I F I L ) to confirm
the withdrawal of Israeli's forces, restore international peace and
security, and help the Lebanese government to reestablish its
effective authority in the area.
In July 1981, a de facto ceasefire came into effect and which
lasted until mid-1982. On June 6, 1982, Israeli forces reached and
surrounded Beirut. While hostilities continued, the Security Council
called for a halt to military activities, and demanded that Israel
withdraw all its military forces to the internationally-recognized

boundaries of Lebanon and immediately lift the blockade of Bei-
rut. A ceasefire went into effect on Aug. 12. However, tension
greatly increased on Sept. 14 when President-elect Bashir Gemaycl
and several others were killed in a bomb explosion. The following
day, the Israeli Defense Forces ( I D F ) took new positions in the
area. The situation in the Beirut area remained unstable, with
continuing loss of life and destruction of property throughout the
remainder of 1983 and 1984. Commencing in Feb. 1985, however.
Israel carried out its own three-phase plan for unilateral rede-
ployment and withdrawal of its forces, completed by mid-1985.
After the withdrawal, both the number and intensity of attacks by
Lebanese resistance groups against Israeli forces and Lebanese
irregulars armed and controlled by them increased sharply. 1965
to mid-1989 saw shelling and bitter fighting, continuing into August,
when it reached an unprecedented level. For the first time during
his tenure, the Secretary-General felt compelled to invoke Article
99 of the UN Charter, and conveyed to the Security Council his
growing anxiety about the escalation of violence in and around
Beirut.
Meanwhile, U N I F I L continued to cooperate with the Leba-

nese authorities, UN agencies, and other organizations — in ex-
tending humanitarian assistance to the local population — distrib-
uting food and medicines, treating Lebanese at medical centres,
helping the families of prisoners, and detonating mines and road-
side bombs in the area of operation to prevent civilian casualties.
The Secretary-General, convinced that the complexities of the
Lebanese problem were such that they could best be resolved thru
Arab efforts, with the backing of the international community, has
remained in close contact with the Tripartite High Arab Commit-
tee (comprised of the Heads of State of Algeria, Morocco, and Saudi
Arabia), aimed at establishing an effective and definitive ceasefire
and putting into effect a plan for the settlement of the Lebanese
crisis.
(5) Afghanistan Crisis
On January 3, 1980, fifty-two member-States of the UN re-
quested an urgent meeting of the Security Council to consider the
situation in Afghanistan and its implications for international peace
and security. They stated that Soviet military intervention in
Afghanistan, which had taken place late in 1979, had destabilized
the area and threatened international peace and security.
In November 1988, the Secretary-General was given a new

mandate by the General Aasembly. Resolution 43/20 represents an
unprecedented decision by a UN organ, since it mandates the
Secretary-General to operate in a reality clearly falling within the
framework of domestic affairs, i.e., the dialogue among the various
segments of the Afghan population for the purpose of achieving a
broad-based government.
(6) Iran versus Iraq
UN efforts to secure a peaceful settlement in the conflict
between Iran and Iraq began at the very onset of hostilities in
September 1980. Meeting on Sept. 28, the Security Council called
on Iran and Iraq to refrain from further use of force and urged
them to accept mediation or conciliation.
Between 1980 and 1986, the Security Council adopted seven
resolutions and issued numerous statements calling at various
times for: (1) a withdrawal of forces to internationally recognized
boundaries; (2) the cessation of military operations against civil-
ian targets; (3) respect for the right of free navigation and commerce
in international waters; (4) restraint from actions which would
endanger peace and security as well as marine life in the Gulf
region; and (5) an exchange of prisoners of war.
On July 20, 1967, the Security Council unanimously adopted
Resolution 598 (1987) which, a year later, was to become the
framework for reaching a ceasefire agreement.
The Resolution has an eight-pronged objective, thus:
1. An immediate ceasefire and withdrawal of forces to
internationally recognized boundaries without delay.
2. A request for the Secretary-General to dispatch a
team of observers to verify, confirm and supervise the cease-
fire and withdrawal.
3. To urge the release and repatriation of the prison-
ers of war (POWS) without delay.
4. To call upon Iran and Iraq to cooperate with the
Secretary-General in implementing the resolution and in
mediation efforts to achieve a comprehensive, just and
honorable and settlement of all outstanding issues.
5. To call upon all States to exercise the utmost re-
straint.
6. To request the Secretary-General to explore the

question of entrusting an impartial body with inquiring power
to look into responsibility for the conflict.
7. To recognize the need for reconstruction efforts.
6. To request an examination of measures to enhance
security and stability in the region.
On July 23, 1987, Iraq officially accepted the Council's Reso-
lution. Upon the other hand, the government of Iran informed the
Secretary-General of its acceptance of Resolution 598 (1987).
Several years after, and still no implementation, Tehran on
Oct. 18, 1993, has sought for the "full implementation of Resolu-
tion 598 that ended 8 years of war with Iraq in 1988. As mentioned
in no. 2 objective above, the release and the repatriation of Prisoners
of wars, has been the most important issue on the agenda. Iraq
says it has released all Iranian POWs but that 20,000 Iraqi sol-
diers are still held in Iran. Tehran says that 5,000 Iranian POWs
are still imprisoned in Iraq. (Abante Tonite, "Iraqi-Iranian Start
Reconciliation Talks," Oct. 19, 1993, p. 3; Manila Bulletin, "Iran
Wants UN Resolution Enforced," Oct. 19, 1993, p. 4).
(7) The Middle East Crisis

The recent Middle East talks, with the initiative of then U.S.
President George Bush and followed up by President Bill Clinton
have tried to find common ground settlement of a long-standing
dispute that has spawned three great wars and destructive con-
frontations.
In a series of bilateral and multilateral meetings — Arab,
Israeli, and Palestinian leaders — negotiated for the first time
since the Palestinian partition in 1948. The ongoing conference
hopes to lead to the end of anguish of a troubled land and that in
accordance with pertinent United Nations resolutions, lands that
are now under occupation will be given in favor of lasting and just
peace in the region. The U.S. has repeatedly stated that peace is
only possible if Israel gives up at least some of the territories. And
few analysts believe the peace negotiations can make any progress
unless Israel accepts this point.
According to the Nov. 20, 1991 survey made of major U.S.
Jewish fund-raisers and activities, 205 of the 339 Council of Jewish
Federation board members and local presidents found that 88
percent favored a "territorial compromise" under which Israel traded
THE U N I T E D NATIONS ORGANIZATION 677
occupied land for peace. Arguably, for Israel to split the occupied
West Bank with Palestinians would be a recipe for perpetual
conflict. Israel also occupies the Golan Heights on its border with
Syria and the Gaza Strip on the Egyptian border.
The Economist (Nov. 2-8, 1991) has provided a background
on the Palestinian issues, thus:
T h e biggest Arab-Israeli bother is the absence of agreed
borders for Israel. The United Nations resolution setting Israel
up in 1947 split Palestine into one Arab and one Jewish
State. Israel accepted, the Arabs did not. In the ensuing war
Israel grew bigger. The 1949 armistice lines came to be seen
as Israel's borders by most of the world, but not by the Arabs.
Israel grew again in the six-day war of 1967, when it captured
the Sinai peninsula and Gaza Strip (from Egypt), the West
Bank (from Jordan) and the Golan Heights (from Syria). The
Security Council passed Resolution 242 calling for peace based
on Israeli withdrawal from territories (not, deliberately, the
territories] occupied in the recent conflict" and the right of
every State in the area to live in peace within secure and
recognized boundaries. A UN mediator set out to implement
this but failed. Later in 1967 the Arab League enunciated a
policy of'no peace with Israel, no recognition of Israel and no
negotiations with Israel.' "Syria and Egypt launched another
war in 1973. Six years later came an Israeli-Egyptian peace
and Israel's evacuation of the Sinai peninsula (but not the
Gaza Strip). An Israeli promise of self-government for Pal-
estinians in the West Bank and Gaza came to nothing. In
1987 a Palestinian uprising, the intifada, erupted. A year later
the Palestine Liberation Organization agreed to a two-State
(Israel and Palestine) solution.
T h e wars produced refugees . About 700,000 Palestin-

ians fled or were driven from their homes in 1948. Today
there are more than 5m Palestinians. Of these, just under 2m
live under Israeli occupation. More than lm are in Jordan.
Some 300,000 Palestinians live as refugees in Lebanon,
260,000 in Syria. Many of the 400,000 Palestinians who lived
in Kuwait have left since the Gulf War. Arabs who in 1948
remained in the areas that became Israel have Israeli citi-
zenship; they now number 800,000. "Under Israeli law, any
Jew has a right of return and can become an Israeli citizen;
10,000 Soviet Jews a month now do so. The Palestinian
refugees also demand t h e right to r e t u r n t o t h e i r former

homeB. "The Palestinians insist that theirs is a problem of
Statehood denied, not merely a refugee problem. That is why
for many years the P L O rejected Resolution 242, which makes
no mention of Statehood. The P L O says Jerusalem must be
the capital of its State, but Israel annexed east Jerusalem
and its suburbs (from Jordan) in 1967 and has ringed the
town with Jewish buildings. King Hussein renounced Jordan's
claim to Jerusalem and the West Bank in favor of the Pal-
estinians in 1988. Jerusalem now has 350,000 Jews and
130,000 Arabs. T h e United States has said many times in
the past that it is not in favor of an independent Palestinian
State in the occupied territories, or of permanent Israeli
occupation, or of chopping Jerusalem in half again."
But as the adage goe6: T h e r e are no impossible dreams;

there only are dreams waiting to be fulfilled." With this aphorism,
the inevitable has become a reality.
As a Carole King original, "I heard the earth move under
your spell," goes, an earth-shaking cum historic agreement be-
tween two ertswhile mortal enemies, Israel and Palestine — a
veritable recognition of the right of each other to exist as separate
nation-States — was formally signed on Sept. 14, 1993 at the
White House in Washington, D.C. Leading actors were Israeli Prime
Minister Yitzhak Rabin and Yasser Arafat, chair of the Palestine
Liberation Organization ( P L O ) . Broker of the universally-hailed
agreement was U.S. Pres. Bill Clinton, who witnessed t h e signing
ceremony, and which was sealed by a historic handshake between
Arafat and Rabin.
Political scientist Manuel F. Almario, in his "A Historic

Handshake," Philippine Graphic (Oct. 8, 1993, p. 10), summed up
the "event" in this wise:
"Unable to exterminate each other, the Arabs and Jews
take the first big step toward peace by resolving the Palestin-
ian issue. The argument is expected to pave the way for Israel's
reconciliation with the Arab States in the Middle East with
which Israel had been in conflict [with] since the onset of the
Palestinian question. Under the pact, the P L O , representing
the Palestinian people, agrees to renounce terrorism, recog-
nize the right of Israel to exist, and declare that sections of
the P L O covenant that call for Israel's destruction are 'no
longer valid.'
"For its part, Israel agrees to recognize the P L O 'as the

representative of the Palestinian people' and pledge to start
negotiations with the P L O on broader Mideast issues. Israel
will also withdraw from the Gaza Strip and the Jericho area
in the West Bank, allowing the Palestinian full autonomy in
the region. [Further,] Israel will allow Palestinians who had
been displaced by the 1967 war, in which Israel seized big
slices of Arab territory, to return to their former homes. Is-
rael claims that 200,000 people were displaced in the war,
while the P L O places the number at 800,000."
A visibly elated Pres. Clinton remarked (after the "historic
handshake"), thus:
"The children of Abraham, the descendants of Isaaac
and Ishmael, have embarked together on a bold journey. We
bid them shalom, salaam, peace."
Undaunted, Henry Kissinger argues that America's leader-
ship — not its money or might — is needed to complete the mak-
ing of peace. Asks he: "Will the euphoria prove an obstacle if it
leads to disillusionment after the deadlocks appear? But the ul-
timate challenge remains the follow-on negotiations. Fitting two
States into a territory 50 miles wide — the distance from the
Mediterranean to the Jordan River — would be difficult even if
irredentism were not built into the situation. This remains above
all a psychological problem. After all, most wars start between
countries that are legally at peace; recognition has never precluded
war or even conquest. (H.A. Kissinger, "Twining a Fairy Tale Into
Reality," Newsweek, Sept. 27, 1993, p. 26). After breaking a psy-
chological barrier with their historic handshake on the White House
lawn, already Palestinian radicals are distressed by what Arafat
told Rabin at Egyptian President Hosni Mubarak's Cairo Palace
— that he hoped they would talk "like cousins." (U.S. News & World
Report, "The Perils of Coming Together," Oct. 18, 1993, p. 16). But,
of course, unless independence is accompanied by economic growth,
the peace process cannot succeed. (See Philippine Star, "Inde-
pendence for All Is Final Aim in Middle East," Oct. 8, 1993, p. 3).
(8) El Salvadoran Conflict

Since 1979, increasingly violent clashes occurred between
leftist and rightist forces. In the national legislative and municipal
elections held in March 1985, the Christian Democratic Party of
Jose Napoleon Duarte, a moderate civilian, scored an unexpected
electoral triumph by winning the majority seat in the new Na-

tional Assembly. The rightist parties that had been dominant in
the previous Constituent Assembly demanded that the vote be
nullified, but the army high command rejected their assertion the
voting had been fraudulent. At the same time, U.S. officials said
that while the rebels still were far from being defeated, there had
been marked improvement in the effectiveness of government troops
in the civil war against anti-government guerillas that has been
waged mainly in the countryside. Talks with the rebels broke down
in September 1986. Duarte's inability to find solutions led to the
rightwing A R E N A party controlling half the seats in the National
Assembly, in the elections of March 1988. The decisive victory of
Alfredo Christiani, the A R E N A candidate for president, gives the
right-wing party effective control of the country, given their political
control of most of the municipalities. (See The 1992 Almanac, p.
182).
In June 1991, UN-mediated ceasefire talks held in Mexico

between the government and rebel forces ended without an
agreement, although progress was reportedly made. And in De-
cember 14, 1992, the last of the leftist rebels to disarm turned over
their weapons to UN peacekeepers for destruction, many firing
final burst into the air. The Dec. 14 display was a prelude to Dec.
15's proclamation of a formal end to a 12-year old civil war bred
of economic inequity that left more than 75,000 people dead in this
small, Central American land. Beginning Dec. 15, the Farabundo
Marti National Liberation Front, whose five armies fought the
government, becomes a legal political party. A ceasefire went into
effect on Februaryl, 1992, two weeks after a UN-brokered peace
accord was signed in Mexico City, but the series have wrangled
over complex timetables for completing the terms of the agreement.
UN Secretary-General Boutros Boutros Ghali, who pushed thru
the last stage of negotiations begun in 1984 under the late President
Duarte, arrived on Dec. 14, 1992, proclaiming a moment of peace.
"At last," Boutros Ghali said, "El Salvador was celebrating the
formal end to the conflict." He praised both leftist rebels and current
President Cristiani for cementing the peace.
(9) Falkland Islands Dispute
An Argentine invasion of the Falkland Islands on April 2,

1982, involved Great Britain in a war 8,000 miles away (from
Britain). Although Argentina had long claimed the Falklands,
known as the Malvinas in Spanish, negotiations were in progress
until a month before the invasion. The Margaret Thatcher govern-

ment responded to the invasion with a 40-ship task force, which
sailed from Portsmouth on April 5. U.S. efforts to settle the dis-
pute failed and United Nations efforts collapsed as the Argentine
military government ignored Security Council resolutions calling
for a withdrawal of its forces.
When more than 11,000 Argentine troops on the Falklands
surrendered on June 14, 1982, Mrs. Thatcher declared her intention
to garrison the islands indefinitely, together with a naval presence.
(10) The Persian Gulf Crisis
"Operation Desert Shield" became operation "Desert Storm"
on January 16, 1991 when a devastating air attack was launched
against Iraq. In a remarkably swift campaign, allied forces soon
liberated Kuwait and occupied 15% of southern Iraq. With an air
war that had already devastated Iraq's nuclear and chemical
weapons capability, not to mention the majority of its ground forces,
the ground war was more a rout than the "mother of all battles"
threatened by Saddam Hussein. After a mere one hundred hours
of ground combat, Iraq accepted a ceasefire. Iraqi casualties were
estimated at 100,000, as opposed to less than 400 Americans, 60
British, 35 French and 300 in the forces of the Arab coalition.
But Iraqi forces had torched hundreds of oil wells before depart-
ing, leaving a legacy of pollution that would endure for years to
come.
On April 3, 1991, the UN Security Council passed resolution

687 arranging for a permanent ceasefire, Iraq acceptance of the
1963 frontier, a full inspection of Iraqi demilitarization, compen-
sation for war damages, and the placement of a peacekeeping force
on both sides of the Iraq-Kuwait border. The essential allied objec-
tives of demonstrating that aggression would not succeed and the
humiliation of Iraq was achieved. But Saddam Hussein remained
in power, and with sufficient military punch to subdue uprisings
in the south and in the Kurdish areas of the north. As Western
troops went home, Iraq was left mostly to its own murderous devices
and Iraq's neighbors were left with a humbled and badly wounded
enemy. This latest war in a volatile region was [apparently] over,
but it was unlikely to be the last we would hear of conflict in the
Gulf. (George Segal, The World Affairs Companion, 1991, p. 267).
Meanwhile, the UN Security Council affirmed an embargo

against military supplies to that country and a trade embargo was
still in place, pending claims of compensation for damage to Ku-

wait.
In a decisive move aimed to lead to the lifting of the UN
embargo imposed on Iraq after the August 1990 invasion of Ku-
wait, Iraq, on October 8, 1993, handed the UN a list of its foreign
supppliers of nuclear and chemical weapons technology in a bid to
end a crippling three-year embargo. (See Manila Bulletin, "Iraq-
Divulges Arms Suppliers," Oct. 9, 1993, p. 2). The head of the UN
Special Commission ( U N S C O M ) on Iraq, Rolf Ekeus, said the
Commission had received the answers to its questions on the sup-
pliers, although he did not know if the list was complete. He
described the move as an important step and said it constituted
programs.
Iraq also gave, according to EkeuB, "new substantial data" on

the productivity of prohibited items which he did not identify. Baghdad
said it submitted the list after UNSCOM and the IAEA (the Inter-
national Atomic Energy Agency) signed a letter promising to use the
information about the suppliers for technical ends and to keep it a
secret. Iraq has said it hoped Ekeus' talks on setting up longterm
monitoring of its weapons programs, particularly that of the uncon-
ventional weapons issue, had been settled.
As this developed, monitoring cameras at two Iraqi missile
test sites have been turned on after negotiations with Baghdad.
"My understanding is they were activated since Sept. 25, 1993,
but were not immediately turned on pending further UN-Iraqi
talks," said Tim Trevan, a senior UN weapons expert. The cam-
eras are part of the program to make sure Iraq does not restart
weapons programs banned since the end of the Gulf War in 1991,
they have, as of mid-October 1993, been installed.
{NOTE: In the Philippines, the Overseas Workers Welfare
Administration ( O W W A ) is considering its hiring of a foreign law
firm to represent itself before the United Nations Compensation
Commission against Iraq. This was disclosed by O W W A Adminis-
trator David Corpin who cited the need for a law firm "with clout"
and "prestige" to handle the war claims pending before the UNCC.
On the corporate claim, it was learned that O W W A is asking for
some P412 million. Upon the other hand, a total of 24,000 indi-
viduals have also submitted their war claims to O W W A , 8,000 of
which were already sent to the U N C C . The O W W A used P100
million during the war for the repatriation of workers affected by
the conflict.
Some 17 countries are asking Iraq for war reparations al-

though the Philippines has the beBt chances of getting its claims
approved since it has adopted a very orderly scheme for going
about the matter. Admittedly, however, the war claims against
Iraq may take a number of years since there is still no clear in-
dication from the Arab state that it will pay those affected by the
1990 Gulf crisis. |
(11) Liberian Crisis

The Security Council has approved the use of force to stop
arms shipments from reaching rebel fighters in the war-ravaged
West African nation of Liberia, a country already bristling with
weapons. In mid-November 1992, the 15-member council approved
an embargo under the same UN provisions used to punish Yu-
goslavia and Iraq. The measure is intended to support a seven-
nation West African force trying to defeat guerrilla leader Charles
Taylor by cutting off Taylor's access to military supplies. But two
of t h e West African nations — Burkina Faso and Ivory Coast —
have been accused of allowing arms and ammunition to reach
Taylor's forces in the past. They deny aiding the rebels now.
Ambassadors acknowledged the country is awash in weapons,
and several privately expressed skepticism that an embargo would
have any real effect is slowing the fighting. "Weapons remain
plentiful throughout the country, and almost one million Liberians
displaced in surrounding countries and in Monrovia do not feel
they can safely return to their homes," U.S. Ambassador Edward
J. Perkins noted in his speech to the Security Council. "The
problems which plague Liberia — proliferation of weapons, inse-
curity and banditry, ethnic tensions, huge numbers of refugees, a
shattered economy — will not yield to military solutions," he said.
In calling for disarmament, Perkins said "Our experience in An-
gola, Cambodia, and elsewhere amply demonstrates that peace
without disarmament is tenuous at best. This is especially true in
Liberia, where proliferation of guns is accompanied by indiscipline,
drugB, and widespread human rights abuse."
The resolution calls for all belligerents in Liberia to observe
a ceasefire and honor a peace process, leading to disarmament and
free elections for a new government. The resolution is the first
major UN effort to promote peacekeeping by a regional organization.
Only the W e s t African peacekeeping force will b e allowed to re-
ceive weapons and other military supplies under the council reso-
lution, said Andre Erdoe, the Hungarian ambassador and current

president of the Security Council.
(12) The Yugoslavian Crisis

Indeed, the world is too dangerous a place to overlook mili-
tary aggression because it bears the label "domestic."
The "civil war" confronting Croatia and Serbia, two ertswhile
Yugoslavian republics, meets more than the eye. For military
aggression cannot be the right answer. To take Croatian land and
incorporate it in a Greater Serbia can only breed more hatred than
there already is. The solution must be political guarantees for
ethnic minorities — guarantees that the Economic Community
(formerly known as European Economic Community) has now made
a condition of recognition. On January 15, 1991, the Community
agreed to recognize the Yugoslav republics claiming independence.
Anthony Lewis of the New York Times wrote:

"Anyone who deal[tl with the Yugoslav problem learn[t]
the de[pth] of Ithe] conflict between [the] Serbs and [the]
Croats. A Serbian-American writes to tell how her grandfa-
ther was mistreated by Croats. Bitter feelings are under-
standable. But shelling hospitals cannot make things better."
About 6,000 people have been killed since Croatia declared
its independence from the Yugoslav federation, sparkling a rebel-
lion by Croatia's Serb minority and military action by the federal
army.
The United Nations, upon recommendation of the Security
Council, has proposed a 10,000-strong "Blue Helmet" peacekeep-
ing force to be deployed in war-torn Croatia to defuse the warring
republics. Necessarily, the UN forces would only be deployed if
there is showing that there will be a genuine end to the fighting.
Be this as it may, the New York Times has commented, thus:
"There are two minimum requirements for any republic
that wants to be welcomed into the community of nations:
that it comply fully with the United Nations-sponsored
ceasefire, and that it begin to take practical steps to protect
ethnic minorities within its borders. "Recognition, along with
providing aid and trade, as well as military intervention, is
one of the few levers outsiders have for ending the internal
strife. It ought not to be squandered unconditionally. "With
THE UN [TED NATIONS ORGANIZATION 685
the vision of a workable confederation gone, reality requires

the de-recognition of Yugoslavia. Full recognition of individual
States can willingness demonstration of their willingness to
live with each other, separately. "De-recognition of Yugosla-
via sends the proper message. It assures Croatia and Slovenia
that the world will not accept the reimposition of unwanted
Yugoslav control over their territory or tolerate forced changes
of republics' borders. And it isolates the government of Ser-
bia, which must bear the major burden of blame for the
violence."
In an editorial, "Silence Over Yugoslavia," The New York Times
(and reprinted in the International Herald Tribune, Nov. 23-24,
1991, p. 8), wrote:
"To Guernica, Coventry, Stalingard and Dresden the

world may now add Vukovar and Dubrovnik. Europe thought
it had finally banished the horrors of total warfare in 1945.
A photograph of the war's victims portrays a crueler truth.
But it need not be an inevitable truth. To stare at this pic-
ture of unburied bodies from the siege of Vukovar in bleeding
Croatia is to see the need for the world to act. For now, the
fighting is limited to Croatia, in what used to be Yugoslavia.
But unless civilized powers bestir themselves, there is no
certainty it will stop there. The former communist world
encompasses a vast ethnic archipelago of enclaves, nationali-
ties and vitural tribes stretching from Germany to Siberia.
With communism no longer imposing a forced peace across
its empire, nationalities have begun to challenge old political
and territorial arrangements.
"Is there nothing the rest of the world can do besides

look on in horror? The answer must be yes, if the vaunted
New World Order is to be anything but a rationalization for
protecting the oil lifeline in the Gulf. Western countries have
mechanisms thru which to act —the North Atlantic Treaty
Organization, the Conference on Security and Cooperation in
Europe, the European Community and, ultimately, the United
Nations Security Council. As it demonstrated in Kuwait, the
West also knows how to recognize new definitions of sover-
eignty and how to act againBt barbarism and tyranny. The
world obviously cannot intervene in every local conflict. But
when, as in the former Yugoslavia, organized armies brutalize
civilians in sustained battles over boundaries, the interna-
tional community has a duty to become involved. That in-

volvement can be based on two principles: that unilateral
changes of existing boundaries by force cannot be tolerated,
and that the basic human rights of threatened minorities
need to be protected. The enforcement mechanisms range from
economic embargoes to the internationally authorized use of
military force. All were used in the Iraq crisis. The immedi-
ate need is to apply them in what used to be Yugoslavia. The
European Community and the Security Council have shown
more concern than effectiveness. The greatest barrier to more
active measures is the absurd fiction that a legitimate and
sovereign Yugoslav federation still exists. Yugoslavia's con-
stitution has become like many of its cities, a smoking hulk.
"The rest of the world should break off formal relations with
the federal non-government, and insist that the governments
of the component republics, the only effective authorities
remaining, take responsibility."
Meanwhile, the Security Council on May 25,1993, established
a war crimes court at The Hague to try people accused of murder,
rape, torture, and other atrocities in the former Yugoslavia. It will
be the first international tribunal of its kind since the main allied
powers set up courts at Nuremberg and Tokyo after World War II
to try leading Axis war criminals. The vote on the resolution was
a unanimous 15-0. The court, not expected to be in operation be-
fore September, would include 11 Security Council endorsed law
(a 34-article statute) governing the functioning of the court, which
will try cases involving grave breaches of the Geneva Conventions,
violations of the 1948 convention against genocide, and other se-
rious crimes against humanity and the laws of war.
By September 1993, Saravejo and much of the rest of Bosnia

had been comparatively quiet as the warring sides haggled over a
proposal to divide Bosnia into Serb, Croat, and mostly — Muslim
mini-States. But the plan fell apart by the first week of October,
when the Serbs and Croats withdrew territorial concessions upon
offer to the Bosnian government because the latter demanded more
land. Nonetheless, Bosnian President Alija Iztbgovic and Croatian
President Franco Tudjman met on Oct. 8 in Vienna where they
issued a joint appeal for the introduction of N A T O troops in dis-
puted territories, followed by arbitration to divide said lands.
(13) Somalian Crisis
A U.S. announcement on January 9, 1980, that bases for
America ships and planes in the Indian Ocean would be sought in

Somalia, Oman, and Kenya, brought a request from Somalia for
$1 billion worth of modern arms and an equal amount of economic
aid. In August 1980, an agreement was signed giving the U.S. use
of military bases in Somalia in return for $25 million in military
aid in 1981 and more in subsequent year. In 1988, guerrillas in
the north went on the offensive and threatened the northern re-
gional capital.
President Siad Barre, who took power on October 21,1969, in
a coup that established a Supreme Revolutionary Council as the
governing body and the later to be replaced by the People's As-
sembly, fled the country in late January 1991. His departure left
Somalia in the hands of a number of clan-based guerilla groups,
none of which trust each other. The installation of Ali Mahdi
Mohammed in the capital by the United Somali Congress, based
on the Ha wye clan, as interim president, won the disapproval of
other groups. Most of the south is controlled by the Somali Patriotic
Movement.
In December 3, 1992, the United Nations launched the world's
biggest armed humanitarian rescue, sending a force led by 28,000
Americans to silence the guns of Somali bandits and help feed
hundred of thousands of starving people. The 15-member UN
Security Council, outraged by the plundering of relief aid destined
for refugee camps filled with the dying, voted unanimously for the
huge operation. For all the boldness of the move, it came more
than a year after severe food shortages and civil unrest were first
reported in Somalia. And the Security Council mandate was vague:
to use "all necessary means" to create "a secure environment" for
relief operations. The resolution did not say if that might mean
creating some kind of UN-controlled civil government in chaotic
Somalia, or whether the troops would try to disarm bandits and
militiamen. It said nothing about who would pay for the operation,
or how long it would last. "No longer than is necessary," U.S.
Ambassador to Somalia Edward Perkins said, adding that troops
would steer away from political interference: "It is, for the Somali
people to decide their own future."
The clans have been battling in Somalia, a country with no

functioning government today, since the collapse of President Siad
Barre's rule in Jan. 1991, worsening a famine that has killed
300,000 people and put 2 million at risk of starvation. Well-armed
militias, mostly untrained young men and boys, have stolen at
least half of the food and medicine shipped to Somalia and paralyzed
a 500-member UN peacekeeping force in place since September
1992.
In mid-February 1993, a UN-sanctioned international force
replaced the U.S. troops who went to Somalia in December 1992
to assist in humanitarian relief efforts. Be it remembered that
relief organizations had appealed for assistance after local warlords
and roving gangs prevented food from reaching the starving
population.
Thus far, 21 U.S. soldiers have died since the UN took control
of the multinational operation in Somalia in May 1993. Five months
after, U.S. President Clinton ordered two AC-130 gunships to
Somalia to bolster UN forces there. The aircraft arrived along with
1,700 extra U.S. troops who disembarked in Mogadishu. The Clinton
decision was prompted by a fierce battle at the military airport on
Oct. 3, 1993 between U.S. forces and the militia of fugitive warlord
Mohamed Farah Aidid. (The Philippine Star, "U.S. Tries to Ne-
gotiate Somali Ceasefire," Oct. 10, 1993, p. 2).
Owing to the increasing death toll of U.S. soldiers, the U.S.

has started to weigh the cost of involvement in such missions as
in Somalia. In his speech to the General Assembly, Clinton has
already alluded to a new policy on U.S. involvement in multina-
tional peacekeeping missions, saying Washington would require
clear goals, time limits, and a better definition of command and
financing. The cost and duration of UN peacekeeping missions
around the globe has already evoked considerable criticism in the
United States, and the five permanent Security Council members
are working on developing new guidelines for intervention. As
already adverted to, the attacks on U.S. soldiers, even though they
have been organized by a small group of militiamen supporting
warlords, e.g., Aidid, have forced the world's last remaining su-
perpower to question its involvement. Be it remembered that UN
forces have never been subjected to such systematic and concerted
attacks since the 1960s in Katanga, in what was then the Belgian
Congo. Thus, the solution in Somalia is by-and-large political, not
military, and the U.S. decision to place the Mar. 31, 1994 deadline
on withdrawing its troops will force the UN and the others to find
a political solution. Otherwise, the famine and chaos that existed
prior to the intervention will return. (See Philippine Star. "So-
malia Mission Represents Critical Test for U N , Oct. 10, 1993. p.
12; See also John King, "Somalia Operation Exposes Problems
THE U N I T E D N A T I O N S ORGANIZATION
With Clinton's UN Strategy," Phil. Star, Oct. 10, 1993, p. 12 and

Reid G. Miller, "U.S. Pullout Could Bring Down UN Operation in
Somalia," Phil. Star, Oct. 10, 1993, p. 10).
At any rate, a pivotal question arises at this point: Does the
UN have the right to intervene? The spectacle of tens of thousands
of UN troops (led by the U.S.) piling into Somalia not to wage war,
but to save hundreds of thousands of liveB from famine and political
anarchy — could prove a milestone in establishing the international
community's "right to interfere" in conflicts around the globe where
the toll of human nursery becomes too great to contemplate from
a distance.
According to France's Minister for Humanitarian Action
Bernard Kouchner, "taking action in Somalia is only the beginning.
People are also dying elsewhere in southern Sudan, in Liberia, in
Mozambique, in Angola, in Burma, and in Bosnia."Arguing that
humanitarian action and the right to interfere are the great
modern political ideas, that States do not belong to governments,
i.e., they belong to the people, Kouchner hopes UN Security Council
Resolution 794, which authorized Operation Restore Hope to So-
malia, will prove a turning point in history by enshrining the
principle of humanitarian intervention in the affairs of sovereign
States.
Nevertheless, Kouchner's ideas are far from universally
welcome and raise searching questions about humanitarian versus
political interests, the distinction between altruism and neocolo-
nialism. The International Red Cross fears the "right of inteference"
could jeopardize its role as a neutral broker in conflicts and shatter
a fragile international respect for the Geneva Conventions which
delineate the limits of acceptable behavior in wartime. Arguably,
human interference, while laudable for non-governmental
organizations (NGOs), is potentially harmful when undertaken
by governments with interest to defend. Said one of Kouchner's
most vocal critics, Rony Brauman (head of the medical charity
Medecins sans Fronticres (MSF), "this action in Somalia intro-
duces real confusion between what is humanitarian and what is
military."
(14) Libyan Crisis

Whenever a State faces a disaster which thretens the lives of
its nationals, iB said State (in such a situation) under an obliga-
tion to allow international organizations into its territory to assist
those in need of help? In other words, does the issue pit the notion
of State sovereignty against the sanctity of human life?
The State, upon which the well-being of its people depend,
must accept that aid, and in situations where it cannot or will not
distribute the relief to the people, must allow legitimate, qualified
organizations to do so. (See Chan Leng Sun, "Humanitarian As-
sistance by International Organizations: A Question of Compul-
sory Access to Victims," Singapore Journal of Legal Studies, De-
cember 1991, pp. 320-347).
In recent timeB, a most concrete ground for action was in-
voked by the UN Security Council on the basis of threatened in-
ternational peace and security. Thus, on April 5, 1991, the Council
passed Resolution 688 (in connection with the plight of the Kurdish
population in Iraq) and, thereby, gave international law a prod in
the right direction. By ordering Iraq to "allow immediate access by
international humanitarian organizations to all those in need of
assistance in all parts of Iraq," the Council made a crucial contri-
bution to the individual human being's struggle for protection under
international law.
The same isue of State sovereignty versus the human life's
sanctity may be deemed, by analogy, applicable to two (2) histori-
cal events, namely: (1) the U.S. Bombing of Libya in 1986; and (2)
the UN Sanctions on Libya in 1992.
On April 15, 1986, U.S. bombers targeted certain specific
areas in Libya. These were: (1) the Sidi Bilal Naval Base; (2) the
Bab-el Azizia Barracks; (3) the Tripoli Military Airfield; and (4)
the Benghazi Port. The air assault left 37 dead (including Muammar
Qadhafi's 15-month old daughter) and 93 injured (including
Qadhafi's two young sons).
Then American President Ronald Reagan declared the as-
sault on Libya an act of "anticipatory reprisal" (otherwise called a
"preventive raid," "preventive self-defense," or "anticipatory coun-
ter-attack") aimed against future terrorist atttacks. Cited as an
act of anticipatory reprisal was the plastic bomb blast at La Belle
Discotheque in West Berlin, which killed two Americans and in-
jured 230 others. Reagan blamed Libya for the bombing.
According to authors Emerenciana Y. Arcellana and Herman
Joseph Kraft, in their "The Use of U.S. Force" {National Midweek,
April 29, 1992, p. 16), "anticipatory reprisal" is an extension of the
concept of reprisal based on a broad interpretation of self-defense
T H E UNITED N A T I O N S ORGANIZATION 691
and designed to inhibit future attacks. "Reprisal," opined Arcellana

and Kraft, is basically unlawful, for by this means as the State
takes the law into its own hands to effect its own brand of justice,
is one of several forcible measures short of war.
Arcellana and Kraft provide some illustrations of reprisals, to
wit: (1) The action taken by Holland when it seized Venezuelan
public vessels as an act of reprisal against Venezuela for the
dismissal of the Dutch Minister to Venezuela (1908); (2) The
bombardment and occupation of the Greek Island of Corfu by Italy
to secure redress from the Greek government for the assassination
of an Italian general within Greek territory (1923); (3) The South
African's army'B raid into Angola in retaliation for attacks of the
Southwest African People's Organization (SWAPO) based in Angola;
and (4) The U.S. embargo against the USSR after the shooting
down of a Korean Airlines 747 jet plane (1983).
Condemning the U.S. bombing of Libya, Arcellana and Kraft
opined: "As for the argument that the U.S. air raids were intended
to prevent or discourage 'future terrorist outrages,' no pre-emptive
short-term action has really stopped or could stop any terrorist
group from proceeding with its activities. It will not deter fanatics,
nor intimidate the oppressed determined to seek redress. A war of
attrition against terrorism can only end with no victor. Two wrongs
do not make a right. The answer to violence is not more violence
but reason, understanding, an earnest discussion of differences,
mutual accomodation, and goodwill."
For failure to surrender two Libyan suspects in the bombing
of Pan American Airlines 103 on Dec. 21, 1988 over the Scottish
village of Lockerbie killing 270 people, the United Nations effec-
tive April 15, 1992, enforced three (3) sanctions approved by the
Security Council Resolution of March 31, 1992:
One. Barring all nations from allowing their aircraft to use
their teritory or airspace for travel to or from Libya, unless the
planes carry humanitarian supplies approved by a UN committee;
Two. Prohibiting all States to supply aircraft or aircraft
components and weapons, ammunitions, and military component
to Libya; and
Three. Expulsion or recall of (most) Libyan diplomats.
The UN Security Council Resolution also demanded Libya's
cooperation in a probe into the 1989 bombing of a French airline
over the West African State of Nigeria in which 171 people were
killed. In addition, it wanted Libya to prove by "concrete actions"
that it had renounced tenrorism.
Colonel Muammar Qadhafi's Libya earlier sought the inter-
vention of the International Court of Justice (ICJ), a bid geared
toward frustrating U.S. and British-backed economic sanctions.
The World Court in the Netherlands, however, refused to inter-
cede against the two countries in Tripoli's confrontation over the
Libyans charged with bombing a Pan Am jumbo jet, ruling the
matter had not properly been put before the Security Council.
The Council refused to accept a compromise offer by Morocco
to hand over Libyan suspects in Malta, Libya's island neighbor.
The proposal fell short of UN demands that they be handed over
unconditionally for trial in the West. The U.S. and Britain, which
issued warrrants for the arrest of the suspects, rejected the pro-
posal. Libya's position in the World Court was supported by judges
from Algeria, Sri Lanka, Madagascar, Nigeria, and Egypt. Those
opposing, aside from the U.S. and Britain, included judges from
France, Italy, Russia, Japan, Poland, China, Norway, Guyana, and
Venezuela.
The U.S., for its part, expressing delight over a decision against
Libya by the ICJ, hinted it may: (1) try to cripple the country's oil
industry via an oil embargo or boycott of Libyan oil sales; and/or
(2) take military action.
As of Jan. 1, 1994, the Security Council has continued the
sanctions imposed on Libya in 1992 for failing to hand over for
trial two men accused of blowing up a PanAm airline over Scot-
land in 1988, as already adverted to.
For its part, the United States said it would consider moves
to add an oil embargo if this proved necessary*to obtain Libyan
compliance.
(15) Armenia versus Azerbaijan
Owing to Armenia's launching of a new attack in its war with
Azerbaijan over disputed Nagorno-Karabackh, the UN Security
Council demanded the former Soviet republic cease its offensive.
The Council on April 7, 1993, also demanded that Armenia give up
its captured territory. Armenia forces have overrun 10^ of
Azerbaijan trying to secure land routes to Nagorno-Karabackh, an
Armenian territory within Azerbaijan. The strategic advantage
THE U N I T E D N A T I O N S ORGANIZATION
appeared to shift to Azerbaijan, which said its troops stopped an

attack on the town of Fizuli near Nagorno-Karabackh. It was
Azerbaijan's first claim of victory in a week of fighting. Armenia
suffered another setback when its only natural gas pipeline was
blown-up.
Christian-dominated Armenia has been at war with Muslim

Azerbaijan for five years for control of Nagorno-Karabackh. More
than 3,000 people have been killed since 1988, the bloodiest con-
flicts in the former Soviet Union.
(16) The Angolan Crisis
In an attempt to force a negotiated end to Angola's bloody
civil war, the UN banned the sale of fuel and weapons to the
U N I T A (National Union's for the Total Independence of Angola)
rebel movement.
The UN sanctions, levied in a manner so as to slow down
Jonas Savimbi's rebel army which has captured almost three
quarters of this vast southern African nation, went into effect on
Sept. 27, 1993. In the words of a UN official in Luanda, "We
certainly hope no stronger measures will be necessary to convince
U N I T A that the time has come for negotiations."
The UN Security Council has threatened to expel U N I T A

representatives from foreign capitals and freeze rebel assets if
progress toward peace is not made by Nov. 1, 1993. In retaliation,
three UN officials were trapped on Oct. 18, 1993 in the rebel-
besieged central Angolan towns of Kuito, where the UN hoped to
fly out foreign nationals and distribute food. (Abante Tonite, "UN
Officials Detained in Angola," Oct. 19, 1993, p. 3).
(17) The Haitian Crisis

The UN Security Council voted on October 13, 1993 to im-
pose an oil and arms embargo and freeze the assets of Haiti's
military leaders for failure of the latter to adhere to an accord to
return exiled President Jean-Bertrand Aristide.
Lt. Gen. Raoul Cedras, the chief of Haiti's military, responded
that the U N , not his army, violated the accord. The key issue, said
Cedras, who helped topple Aristide in Sept., 1991, was an amnesty
for those people who might be charged with political crimes
committed after the coup against Aristide and before the UN-
brokered pact was signed in July, 1993. Aristide decreed an am-
neety, but Cedras countered parliament has yet to turn it into law.
He also said the plan guaranteed that any troops arriving here as
part of the UN force must carry only handguns, not the M-16
assault rifles that U.S. medics, engineers, and civil affairs specialists
were equipped with. For that matter, a senior UN official said
Cedras was making an issue of the M-16s to seek a way out of the
international agreement.
Whoever is to blame, the 6.5 million residents of this deeply
impoverished nation will suffer most from the embargo, and many
expected it to come down to that. Note that sanctions were first
imposed weeks after the coup. In June 1993, an oil embargo was
imposed to increase pressure on military leaders. But it was lifted
in late August after Cedras agreed to the UN plan. The U.S. led
the call for reimposing sanctions against Haiti since armed toughs
backed by the military blocked the landing of UN forces in mid-
October or 1993. U.S. Pres. Bill Clinton, for his part, said the
Haitian military broke the terms of the agreement by resisting the
deployment of 194 American and Canadian troops (who were to
train Haiti's police and soldiers after these two groups were split
up and the former put under civilian control) who had come to
Haiti aboard the USS Harlon Country. (Manila Bulletin, "UN Puts
Pressure on Haitian Leaders," Oct. 15, 1993, p. 4; Business Star,
"Haiti Army Chief Makes Conditional OfTer to Resign," Oct. 15,
1993, p. 18; Business Star, "Security Council OKs New Sanctions
vs. Haiti," Oct. 15, 1993, p. 18). The Security Council, meeting in
an emergency session on Oct. 16, 1993, unanimously endorsed the
deployment of the U.S. warships and called on other nations to
help enforce the sanctions if they go into effect. That same day.
Canadian Prime Minister Kim Campbell ordered two Canadian
destroyers and a supply ship to international waters off Haiti to
join U.S. warships in enforcing the UN sanctions. He said the
move reflects Canada's "determination to see democratic govern-
ment restored in Haiti." (Manila Standard, "Last UN Peace
Monitors Abandon Haiti," Oct. 18, 1993, p. 16).
— oOo —
Chapter 15
A BRIEF HISTORY OF
PUBLIC INTERNATIONAL LAW
INTRODUCTION
The history of Public International Law may be divided into
three periods: Ancient, Medieval, and Modern. The Modern Era
may, in turn, be subdivided into several stages.
ANCIENT INTERNATIONAL LAW

Ancient political communities developed certain usages in their
mutual intercourse; treaty-making and treaty-breaking; the pur-
suit of commerce; and the rules of war. The Jews were brutal and
ruthless in the battlefield. In contrast the Hindus, in the Indian
Code of Manu, urged humaneness in the conduct of war (the use
of poisoned weapons was, in fact, prohibited). The ancient Greek
city-States developed the "Customs of the Hellenes" based on
natural law principles and interstate agreements. Resident aliens
(particularly the "Metokoi") were accorded not only hospitality but
also full civil protection. They had a "proxenus" or consul to rep-
resent their interests. Diplomatic immunities were recognized. Even
the right of sanctuary or asylum came to be presumed. In ancient
Rome, the "jus gentium" regulated the conduct of all who were not
Roman citizens; the "prealor peregrinus" settled legal disputes
where aliens were involved; the College of Fetials negotiated
treaties and decided questions of war.'
'See Wilson and Tucker, International Law, pp. 15-16; Fenwick, Interna-
tional Law, pp. 3-33.
MEDIEVAL INTERNATIONAL LAW

Four (4) interesting developments took place:
(1) the strengthening of the Church [settlement of disputes
b y the Pope; growth of arbitration; appointment of church envoyB
("legati") and papal ambassadors ("apocrisiari" or "nuncios");
emergence of full diplomatic practices]
(2) humanization of war and elimination of brutalities in-
sofar as was practicable
(3) formulation of certain Codes:
(a) Amalfitan Tables — contained the laws of the sea
in the 11th century
(b) the Law Merchant — maritime rules administered
by mercantile courts
(c) the Laws of Oleron — which later formed the basis
of the "Black Book of the Admiralty"
(d) the Laws of Wisby — contained the maritime law
of the Baltic States
( e ) the Consolato del Mare — the recognized maritime
law of Southern Europe and the Mediterranean
(4) the growing influence of St. Thomas Aquinas, who laid
down the requisites for a just war:
(a) the authority of the prince to wage the war
(auctoritas principis)
(b) the existence of a just cause (justa causa)
(c) the intent to do good (recta intentio)
( N O T E : The Crusades were considered just and legiti-
2
mate wars).
MODERN INTERNATIONAL LAW

Modern International Law has had the following stages:
(1) from the discovery of America (1492) to the Peace of
Westphalia (1648)
'See Wilson and Tucker, op. cil., pp. 19-20.

A BRIEF HISTORY OF PUBLIC I N T E R N A T I O N A L LAW
42) from the Peace of Westphalia (1648) to the Peace of

Utrecht (1713)
(3) from the Peace of Utrecht (1713) Lo the Congress of
Vienna (1815)
(4) from the Congress of Vienna (1815) to the start of World
War 1(1914)
(5) from the start of World War 1(1914) to the start of World
War II (1938)
(6) from the start of World War II (1938) to the present.
THE FIRST STAGE (1492-1648)
With the discovery of America in 1492, Spain, Portugal,

England and France rose to international prominence. Church
influence was diminished. More ambassadors were appointed.
Privateering (the taking of an enemy ship not for the privateer's
country but for his own profit, under the authority of his State
given in the form of "letters of marque") became the fashion of the
day. Writers in International Law and the related principles
emerged. Among the most notable were:
(1) Nicolo Macchiaveli (Italian) — he surveyed the ruthless
tricks of sovereigns in preserving powers in the books "The Prince"
and the "Art of War")
(2) Jean Bodin (French) — (he stressed the fact that within
the territorial boundaries of a State, the sovereignty of the State
is absolute, perpetual, unqualified, and indivisible).
(3) Francisco de Vitoria (Spanish) — often referred to by
Spaniards as the "Father of International Law," he advocated free-
dom of maritime commerce)
(4) Baltazar Ayala (Spanish) — (he said that even between
the belligerents in a war, there ought to be good faith)
(5) Alberico Gentili (Italian) — (he gave the opinion that a
peace treaty cannot be annulled on the ground of fear or duress;
he also formulated the doctrine of "rebus sic stantibus")
(6) Hugo Grotius (Dutch) — [to most publicists, he is the

true "Father or Founder of International Law." His outstanding
contribution is his "De Jure Belli ac Paris" (The Law of War and
098 I N T E R N A T I O N A L L A W A N D WORLD POLnTCS
Peace) where he etreBBed moderation in war (the "tern per a men La"
of warfare); freedom of the eeaB and the theory and nature of
diplomatic privileges and immunities).
THE SECOND STAGE (1648-1713)

The Thirty Years War (1616-1648) culminated in the Treaty
of Westphalia of 1648. The treaty recognized the independence of
certain States, allowed them to enter into treaties, and saw the
need for an international organization to prevent war. French
became the language in diplomatic affairs. Among the effective
writers of the period were:
(1) Samuel Pufendorf (German) — (who maintained that
international law was essentially based on the natural moral law)
(2) Leibnitz (German) — (who rebelled against the theoreti-
cal approach of Pufendorf and insisted on the scientific study
instead of treaties and diplomatic documents. He wrote "Codex
1
Juris Gentium Diplomaticus").
THE THIRD STAGE (1713-1615)

The Peace of Utrecht of 1713 ended the War of the Spanish
Succession. In the treaty the signatories realized the need for a
"Balance of Power." The French Revolution and the American
Revolution stressed the dignity of man. Treaties were held in higher
respect; arbitration gained new prominence because of the Jay
Treaty which catted for a continuing Board of Arbitration to settle
Anglo-American disputes; the concepts of contraband and angary
were redefined. Among the publicists of the period were:
(1) Cornelius Van Brynkershoek (Dutch lawyer and jurist)
— (who brought forth the doctrine of territorial waters and em-
phasized the importance of public maritime law)
(2) Christian de Wolffe — (a German philosopher who wrote
on the fundamental rights of States)
(3) Emmerich de Vattel (Swiss) — (who discussed the
equality of States).*
s
See Encyclopedia Britannica. Vol. 12, p. 525.
*See Encyclopedia Britannica. Vol. 12, p. 524.
A BRIEF HISTORY OF PUBLIC INTERNATIONAL LAW
THE FOURTH STAGE (1815-1014)
ThiB period began with the Congress of Vienna in 1815, with

its doctrine of "legitimacy" and the formation of the Holy and
Quadruple Alliances. The Monroe Doctrine was formulated. Swit-
zerland was neutralized. The Protocol of Aachen (1818) ranked
diplomatic officers. The Declaration of Paris of 1856 (also known
as the Declaration of Maritime Law) gave new rules on neutrals
and blockades. China was beset with "most-favored-nation" clauses
in favor of foreign States. Japan was again "opened" to the world.
Among the authors were:
(1) John Austin — who believed that international law is
law only insofar as it has been incorporated into the municipal law
of a State;
(2) Henry Wheaton — who dealt with diplomatic suits;
(3) F. L. Oppenheim — who wrote a spectacular treatise on
international law.
This period also witnessed two (2) Conferences at the Hague:
(1) The First Conference (1899) — dealt principally
with disarmament, arbitration, and rules of warfare.
(2) The Second Conference (1907) — agreed on the re-
quirements before war would begin, and, inter alia, the
Porter Convention.
THE FIFTH STAGE (1914-1938)
This period starts with the first World War, its culmination
under the Treaty of Versailles (June 28, 1919) and the establish-
ment of the ill-fated League of Nations which eventually failed to
slop another World War. The Locarno Pact (1925) agreed on the
preservation of the status quo (of peace) and the inviolability of
the German-French and the German-Belgian frontiers. The Briand-
Kellogg Pact (1927) renounced for France and America war as an
instrument of national policy. Eventually 61 countries adhered to
the principle. The Permanent Court of International Justice was
established. Meantime, Italy became enmeshed in Fascism, Ger-
many in Nazism, and Russia, in Communism. The time was ripe
for World War I I .
THE SIXTH STAGE (1938 — to the present)

During World War I I , countless rules of war were violated.
This last period has witnessed the formulation of the Atlantic
Charter (1941); the use of the atom bomb (1944); the establishment
of the United Nations Organization and the International Court of
Justice (1945); the use of the UN international forces to solve
crises (the U N E F and the O N U C ) ; the explosion of hydrogen,,
uranium, nuclear bombs (including megaton bombs); the experiment
with "summit conferences"; Conventions on the Laws of the Sea;
disarmament talks; and flight into outer space. From the end of
the last war there have been several crises each of which could
have started World War I I I (The Palestine Question between the
Jews and the Arabs; the Indonesian Revolt against the Dutch; the
conflict between India and Pakistan; the Korean Intervention; the
Rape of Hungary; the Crisis in the Middle East; the Belgian Congo
— where "apartheid" or racial discrimination and unpreparedness
for self-government have been vital factors; the dispute over the
Suez Canal). In the last decade, we had the crisis over Iran and
the American hostages and the threatened rupture of diplomatic
relations between the two countries; the Russian intervention in
Afghanistan, the long drawn-out war between Iran and Iraq, the
clashes between Russian and Chinese troops on the border and
Cambodia; the never-ending energy crunch; the communist boycott
of the 1984 Olympic Games at Los Angeles; the wars between
Israel and the Palestine Liberation Organization, between the
Christians and the Muslims in Lebanon, the rebellions in Chile,
Nicaragua, Sudan, and the "hot domestic situation" in Brazil. In
this age of the 90s, we have had the catastrophic Iraq versus the
Allies (led by the U.S.) the civil strife in Yugoslavia, Bosnia-
Hercegovina), the famine conflict in Somalia, the North Korean
intransigence on the non-nuclear proliferation treaty or N P T issue,
flashpoints in the South China Sea, the Russian struggle to imbibe
democracy: Boris Yeltsin against the Communist hardliners, etc.
In the meantime, the Philippines has joined the SEATO

(Southeast Asia Treaty Organization), the A S A (Association of
Southeast Asia), and the A S E A N (Association of Southeast Asian
Nations — Philippines, Malaysia, Thailand, Indonesia, Singapore,
and Brunei — formed in 1967 for cultural, social and economic
collaboration.)
For many years, we tried to pursue our Sabah (North Bor-

neo) claim, but it would seem that we have already abandoned or
A BRIEF HISTORY OF PUBLIC I N T E R N A T I O N A L LAW 701
renounced the claim (except insofar as the proprietary shares of

certain Muslim heirs are concerned). We will now have a detailed
backgrounder on the matter.
THE PHILIPPINE CLAIM TO

A PART OF NORTH BORNEO (SABAH)
The pertinent facts of our claim to a part of North Borneo

would seem to be the following:
5
(1) The Sultan of Brunei, owner of North Borneo, ceded a
portion thereof to the Sultan of Sulu, as a gesture of gratitude for
the letter's help in suppressing a revolt in the territories of the
former. This was in 1704.
(2) Said portion was in turn leased (according to our gov-

6
ernment's interpretation) in 1878 by the Sulu Sultan to Baron de
Overbeck, an Austrian, for a stipulated annual rent of 5,000
7
Malayan dollars (later increased to 5,300 Malayan dollars under
the confirmatory deed of April 22, 1903). Britain, however, consid-
s
North Borneo used to be called "Sabah."
*Il is said thai the Sulu SulLan was then preoccupied with a struggle
against the Spanish forces in the Sulu Archipelago.
The lease contract describes the territory in terms of natural boundaries;
". . . all the territories and lands being tributary to us on the mainland of the
island of North Borneo commencing from the Pandaasan River on the NW coast
and extending along the whole east coast as far as the Sibuco River in the South
and comprising among others the States of Paitan, Sugut, Bangaya, Labuk,
Sandakan, Kinabatangan, Muniang and all the other territories and States to the
southward thereof bordering on Darvel Bay and as far as the Sibuco River with
all the islands within 3 marine leagues of the coast."
It is evident that this 187S contract covered only portions of British North
Borneo, not all of it. Host of the portions not included had been previously ceded
by the Sultan of Brunei by the contract of December 29. 1677 to Baron de Overbeck
and to Alfred Dent.
As a matter of fact, if we believe a report made by then acting British
Consul General Treacher on January 22, 1679 (the same day the Sultan or Sulu
signed the lease contract with Baron de Overbeck), even the lands leased by the
Sultan of Sulu to Overbeck had already been previously ceded by the Sultan of
Brunei to Overbeck and Dent, and the only reason Overbeck had to negotiate with
the Sulu Sultan was because the latter was in actual possession of said lands or
at least some of the territories involved. (See tetter of Treacher of January 22,
1878, pp. 20-23, compilation of documents, Department of Foreign Affairs, Phil-
ippine Government; Senator Loreiuo Sumulong, "Rejoinder on North Borneo,"
Manila Chronicle. April 18, 1963).
"This amount ia the approximate equivalent of 1,600 U.S. dollars.
INTERNATIONAL L A W A N D WORLD P O U T K S
ere the agreement a "cession in perpetuity," and the yearly pay-

ment as "cession monies."
(3) Baron de Overbeck sold all his rights to the lease con-
tract to an English merchant named Alfred Dent, who later es-
tablished a company known as the British North Borneo Company.
This Company assumed Dent's rights and obligations over the
8
contract. Subsequently, despite vigorous protests on the part of
the Dutch and Spanish governments, the British government
9 10
awarded the Company a Royal Charter in 1881.
(4) Although in a sense. North Borneo had been since 1888

a British protectorate," and although after liberation (from the
Japanese) in 1946, a British military administration unit ran the
13
government, it was not until July 10, 1946 the the British North
Borneo Chartered Company transferred all its nights and obliga-
13
tions under the lease to the British Crown. When the British
T h e protests, caused by an apparent usurpation of sovereignty by Britain,

were answered by the British government's recognition of continuing sovereignty
over the territories by the Sultan of Sulu and avowal that the British North
Borneo Company was merely an administering authority. (See Salonga.TAe
British North Borneo Question: a Rejoinder, The Sunday Chronicle. March 31,
1963).
^Corporations possessed of delegated political powers assume a quasi-inter-
national status. Certain powers or sovereignty, including the power to govern,
are generally given by their home governments. (See Wilson and Tucker, Inter-
national Law., pp. 64-65).
l0
Salonga, op. cit.
"Lorenzo Sumulong, op. cit. A "protectorate" is a dependent State under
the authority of the "protector" State. It possesses all competence in interna-
tional affairs which it has nol expressly and specifically waived or renounced.
(See Wilson and Tucker, op. cit.. pp. 62-63).
"Gordon Wells, Jesselton Comes of Age. The Asia Magazine, April 28. 1963,
p. 14.
"While Gordon Wells, supra, gives July 15, 1946 as the date, both Senator
Lorenzo Sumulong and Congressman Jovito Snlonga agree that the correct date
is July 10, 1946. Senator Sumulong adds that although "the United Nations
Charter was signed in San Francisco in 1945, it was only in 1947 that the
Committee on Information from Non-Self-Governing Territories met and pre-
scribed the standard form to be followed by the administering powers in the
preparation of their annual report of conditions in the territories administered by
them: consequently, it was only in 1948 that the administering powers actually
began to send in annual reports of their administration; . . . from that year
onwards Britain has been sending annual reports declaring herself to be the
colonial power administering North Borneo as a British colony without any
protest from the Philippine delegation until December of 1982 when the latter far
the first time entered a reservation contesting British sovereignty o w North
Borneo." (Lorenzo Sumulong, op. cit.)
A BRIEF HISTORY OF PUBLIC INTERNATIONAL LAW 70S
Colonial Office accepted the responsibility of running the small

war-scarred country, the Company was dissolved and the youngest
British "colony" was born."
(5) Shortly after British assertion of sovereignty over North
Borneo, our Government acted on two fronts: firstly, the cession
15
order was denounced by Harrisons as a "unilateral act in vio-
16
lation of legal rights," secondly, three Congressmen" sponsored a
resolution "urging the formal institution" of our claim to a part of
18
North Borneo. After a serious Btudy, the House of Representa-
tives passed in 1962 a unanimous resolution urging the Philippine
President to recover the territories "consistent with international
19
law and procedure."
(6) Sometime in September, 1962, a deed of cession was

reportedly entered into between the new Sultan of Sulu (Jamalul
20
Kiram) and the Philippine President. The deed transferred sov-
ereignty (or the claim of sovereignty) over the disputed portions in
North Borneo from the Sultanate of Sulu to the Philippine
21
Government. Having thus acquired alt the rights a n d interests of
the Sulu Sultan, and acting on the unanimous Congressional reso-
lution hereinabove adverted to, "the Republic of the Philippines,
"Cordon Wella, loc. eit.

Be il noted that the July 10, 1946 transfer took place 6 days after our
Philippine Independence in 1946. Congressman Salongn calls the "transfer as
one "rather opportunely Tiled." (Salonga, op. cit.)
"""Francis Burton Harrison, former American Governor-General or the Phil-
ippines, was acting as special adviser to the Philippine Government on foreign
affairs at the time he made the denunciation.
'Movito R. Salonga, loc. cit.
l7
Congressmen Diosdado Macapagal, Arscnio Lac son. and Arturo Tolentino.
'"Salonga, loc. cit.
"ibid.
™Lorenw> Sumulong, toe. cit.
''Senator Sumulong vigorously questions this deed or cession to the Phil-
ippine government on two vital points: firstly, he claims that the heir of the original
Sulu Sultan have thru the years lost whatever original rights of sovereignty they
previously had: secondly, he considers the deed of cessions a treaty which should
he subject to Senate approval or ratification.
On the first point, he says:
"By its very nature, sovereignty can be claimed only by sovereign
and independent States, nol by individuals. An individual may own prop-
erty in • foreign State, but his private ownership over that property is
subject to the sovereignty of the foreign State over the same property.
thru the President, filed the claim" to the disputed North Borneo
portions.
"It follows that heirs of Sultan Jamalul Kiram, as private individu-

als and as Filipino citizens owing allegiance and subject to the sovereignty
of the Republic of the Philippines, cannot claim sovereignty over North
Borneo. They must show that after the death of Sultan Jamalul Kiram in
1936, the Sultanate of Sulu continued to exist as a sovereign and inde-
pendent State managing the internal and external affairs of North Borneo
until September of 1962 when the said Sultanate ceded such sovereignty
over North Borneo to the Republic of the Philippines.
"Let us see how the heirs of Sultan Jamalul Kiram comported them-
selves after the letter's death in 1936.
"On September 20, 1936, President Quezon issued a memorandum
regarding the administration of affairs in Mindanao. President Quezon
served notice that he would not allow any sultan or datu to exercise powers
of sovereignty or government in Mindanao and in the Sulu Archipelago.
Princess Dayangdayang, Princess Tarhata Kiram, Esmail Kiram, and the
other heirs of Jamalul Kiram decided to abide by the directive of Quezon.
They did not contend that the Sultanate or Sulu continued to exist. They
did not invoke the so-called royal families in Sulu to elect and proclaim a
new Sultan of Sulu. What they did instead was to file a civil suit in the
High Court of the State of North Borneo, then presided over by Chief
Justice Macaakie, in order to obtain a declaration from that Court that as
the private heirs of Sultan Jamalul Kiram, they were entitled to receive
the yearly payment or 5000 Malayan dollars stipulated in the 1876 con-
tract of the Sultan of Sulu and increased to 5,300 Malayan dollars under
a confirmatory deed executed on April 22, 1903.
"After due hearing, Chief Justice Macaskie on December 18, 1939
rendered the decision of the Court holding that the 1878 contract of the
Sultan of Sulu was a cession in perpetuity; that the only right to the yearly
payment; that the Philippine Government was the successor in sovereignty
to the Sultanate or Sulu which had passed out of existence; that as such
successor in sovereignty, the Philippine court having declared the plain-
tiffs to be the private heirs of the said Sultan entitled to the yearly pay-
ment, the Philippine Government must be deemed to have waived its right
to the yearly payments in favor of the private heirs of the late Sultan
Jamalul Kiram.
"Having accepted the said decision which declared the 1878 contract
to be a cession in perpetuity, and having issued receipts in writing ac-
knowledging the yearly payments to be cession monies, how can they now
say that the said contract was a mere lease?
"Having accepted the said decision which declared that the only right
reserved to the Sultan of Sulu, his heirs or successors was the right to
receive the yearly payment, how can they now contend that they had the
right to terminate the 187S contract which they now alleged to be a mere
lease and demand for the restoration of North Borneo?
"Esmail Kiram having accepted the said decision which declared him
to be a mere private heir of Sultan Jamalul Kiram entitled Ut 1/24 of the
yearly payment, how could he in September of 1962 claim to be the new
Sultan of Sulu and as such empowered to represent the Sultanate of Sulu
in ceding North Borneo to the Republic of the Philippines?"
A BRIEF HISTORY OF PUBLIC INTERNATIONAL LAW 706
(7) After Borne time, the British Government agreed to talk

with Philippine representatives in London regarding our claim to
22
sovereignty over the controverted North Borneo territories. The
London talks then took place with the Philippine panel headed by
On the second point, Senator Sumulong says:

"It wae the heirs of Sultan Jamalul Kiram who thru their lawyer
wrote in February or 1962 to the Department of Foreign AfTairs offering to
transfer their claim of sovereignty over North Borneo U> the Republic of the
Philippines, reserving to themselves their proprietary claims. This offer
was agreed to by President Macapagal and so, to give semblance of legality
to the transfer of sovereignty, sometime in September of 1962, it was pro-
claimed that the Sultanate of Sulu still existed with Esmail Kiram as the
new Sultan of Sulu and as such he signed the deed of cession transferring
the claim of sovereignty to North Borneo to the Republic of the Philippines.
"In other words, it was made to appear that the Sultanate or Sulu,
as an existing sovereign state transferred its sovereignty to North Borneo
to another sovereign State, the Republic of the Philippines. It was designed
to produce the effect of a treaty of cession, just like the Treaty of Paris or
December 10. 1896. whereby Spain ceded the Philippines to the United
States.
"Can the President or the Philippines enter into such treaty or ces-
sion without submitting it for ratification by the Philippine Senate? It is
clear that under our Constitution such a treaty cannot take elTect until
ratified by the necessary 2/3 vote in the Senate . . . If the Treaty of Paris
whereby Spain ceded the Philippines to the United Stales had to be rati-
fied by the U.S. Senate, how can President Macapagal dispense with the
constitutional requirement of Senate ratification for this cession or North
Borneo by the Sultanate or Sulu to the Republic or the Philippines.'
(Sumulong, loc. cit.).
Congressman Salonga answers Senator Sumulong as follows:
"Sovereignly as such was nol in issue in the case referred lo 4a civil
suit in the High Court of the State of Borneo); . . . even if it had been put
in issue that the Court, under Internationa] Law, did not have the compe-
tence to rule on the question or sovereignty; ... whatever decision that
British court may have promulgated does not bind the Republic of the
Philippines . . .
"Finally, the Senator, . . . argues that the transfer of rights between
the Sultanate of Sulu and the Republic of the Philippines should have been
in the form of a treaty and submitted to Senate ratification. The British,
it may be well lo say, have not yet come up with this argument of the
distinguished Senator. Let them put it forward; we shall deal with it. In
the meanwhile, a reading by the Senator of various transfers in Interna-
tional Law would be helpful, indeed." (Salonga, More on North Borneo, The
Sunday Chronicle, April 21, 1963.)
=
S e n a Lor Sumulong in this connection says:
"When the British agreed to talk with us in London, il was hailed as a
diplomatic victory of the administration, when in truth and in Tact, it was due to
U.S. mediation and intercession — as President Macapagal himselT admitted —
that the British agreed. (Sumulong, loc. cit.)
706 INTERNATIONAL LAW A N D WORLD POLITICS -
then Vice-President Emmanuel Pelaez (concurrent, Secretary of

Foreign Affairs). The controversy remained unsolved.
(8) With the establishment of the Federation of Malaysia
(or simply, Malaysia), and our recognition of the country, it would
seem that today, the best solution may be for the World Court to
take cognizance of the case (but for this to take place, Malaysia
must first agree).
SOME LEGAL QUESTIONS ON OUR SABAH CLAIM
Introduction
An "INTER-UNIVERSITY Committee on the Sabah Claim,"
composed of professors of international law and political science in
various colleges and universities, and of expert political scientists,
has quietly studied the academic and practical aspects of our claim
to a part of North Borneo popularly called Sabah. Several sub-
committees have been formed, and one of them is the sub-commit-
tee on legal questions that must be sufficiently answered if our
claim to Sabah is to stand scrutiny before a court of law. These
questions are divided into four (4) general categories, to wit: (1)
The legal interpretation and effects of the several deeds, documents
and contracts involving Sabah [The question presented under this
category are: a) What is the legal proof that the Sultan of Sulu
obtained Sabah from the Sultan of Brunei thru cession? If indeed
there was a cession, what was ceded — dominion or sovereignty or
both? Was Sulu a State at the time? On what date did the cession
occur — in 1650, 1704, 1836, 1842, 1878, or some other date? —
and what were the jurisdiction and circumstances of this acquisi-
tion by the Sultan of Sulu — rebellion in the territories of Brunei,
a war of succession, an act of capitulation? (Questions raised by
Ghazzali, head of the Malaysian Panel in the Bangkok Talks); b)
What is the legal nature of the agreement in 1878 between the
Sulu Sultan and Overbeck and Dent? Was this a lease or a ces-
sion, and in either case, what was involved — dominion, sover-
eignty, or both? What is the legal effect of the alleged cession of
Sabah by the Sultan of Brunei to Overbeck and Dent even before
the Sulu Sultan of Sulu despite the fact that allegedly, Overbeck
and Dent had already previously negotiated with the Sultan of
Brunei?; c) Did the Sulu Sultan really have any sovereignty over
the territory in 1878? If so, what were his acts of sovereignty?
Considering the fact that according to certain documents, sover-
eignty at that time was instead in the Sultan of Brunei (a Sov-
A BRIEF HISTORY OF PUBLIC I N T E R N A T I O N A L LAW 707
ereignty that said Brunei Sultan conveyed to Overbeck and Dent

prior to 1878), what,is the Philippine proof that the Sultan of
Brunei did not have any sovereignty over the particular territory
on or before that date? (Questions raised by Ghazzali); d) What were
the legal effects of the transfer of rights, if any, from Overbeck to
Dent; from Dent to the British North Borneo Company, from the
Company to the British Crown; and from the British Crown to
Malaysia? What is the legal effect of the British Government's
recognition of the Sultan of Sulu's sovereignty over Sabah — de-
spite the formation of the British North Borneo? Upon the other
hand, what are the effects of certain British Acts indicative of the
repudiation of the lease and indicative of Britain's exercise of sov-
ereignty — and the effects of virtual acquiescence thereto by Spain,
the United States, and perhaps even by the Philippines itself?; e)
What are the significant differences between the Sulu and the
Spanish versions of the Treaty of 1878 (Treaty of Capitulation by
Sulu with Spain in 1878) considering the fact that the Sulu ver-
sion did not transfer any of the dependencies of Sulu to Spain
(assuming that the Sulu Sultan really had authority over Sabah)?
What is the significance of the Carpenter Agreement of 1915 and
the "Interpretative Letter" thereto? Did the U.S., by said "letter"
legally recognize the continuing existence of Sabah as belonging to
the Sultan of Sulu? (Questions raised by Ghazzali). In this con-
nection, what is the significance of the Spanish Protocol of 1885,
removing Borneo from her possession? What are the legal implica-
tions of the Protectorate Agreement of 1888 by the British Crown?;
f) Assuming the authenticity of the documents — 1. of April 24,
1962, 2. of Sept. 11, 1962, and 3. of Sept. 12, 1962 which of them,
in the face of certain contradictions, are basic documents and which
are not? (Questions raised by Ghazzali); g) What are the legal
implications of said documents? What were transferred by the
Sultan of Sulu to the Philippine Government in 1962 — sovereignty,
dominion, both or neither? h) What are the legal effects of the
Instruments of January 1, 1968, executed by the heirs of Sultan
Jamalul Kiram II regarding their proprietary rights in North
Borneo?); (2) The problem of sovereignty viewed in light of our
Constitution, our history of liberation, and the commitments of the
present Philippine Government and its predecessors. [The questions
propounded in this regard are: a) What is the effect of the Article
on National Territory (in our Constitution) on our right to acquire
territories? What was the intent of the delegates to the Consti-
tutional Convention (later to be called the Constitutional Com-
mission) on the matter?; b) Can the Executive Department of our
708 rNTERNATIONAL L A W A N D WORLD POLITICS
Government by itself, without Senate concurrence, enlarge our

national territory?; c) Assuming that the Senate concurs in the
actuations of the Executive Department — would a constitutional
amendment or plebiscite still be required? Otherwise stated, in
the Philippines, what is the official authority or organ that iB
empowered (whether expressly or implicitly) by the Constitution
to acquire territory? May a private individual or a group of indi-
viduals lawfully annex territory in favor of the Philippines? Is the
act of acquiring territory executive, legislative, or judicial in char-
acter?; d) Was the Sultanate of Sulu still a State in 1962 (assuming
that it was once a State) such that it could transfer sovereignty?
If it was a State, how could it exist as such within the purview of
our Constitution? If it was not a State, may a private citizen or
some private citizens of one State be regarded as the sovereign of
some other place or State — either inside or outside the State of
citizenship? Legally assuming the existence of the Sulu Sultanate,
was the Sultan of Sulu also the Sultan of Sabah? If so, why was
not the cession in favor of the Philippine Government made in the
name of the Sultan of Sabah? What is the effect of Spanish,
American, and the Philippine Republic's sovereignty over Sulu?; e)
Legally who is the present Sultan of Sulu: Whom did he succeed?
What acts of sovereignty has he carried out? What complaints or
protests has he made to the British authorities on their sovereign
possession and occupation of North Borneo? How did any Sultan
come to occupy a Sultanate which had been officially ended by the
then Philippine President, as an institution upon the Sultan death
in 1936? How can the Philippine claim be founded on documents
of apparent inherent invalidity? (Questions raised by Ghazzali); ft
Why is it that from 1915, the date of the Carpenter Agreement, to
1936, 21 years later when he died, not one of the Sultan's acts in
relation to Sabah can be regarded as consistent with his being a
sovereign ruler of the territory? What are the implications of the
many successive occasions when he directly or thru attorneys asked
again and again for increase of his compensation money? Are such
acts consistent with the claim to sovereignty? (Questions raised by
Ghazzali); g) What is the legal effect of the repudiation by the
Sultanate of Sulu of the cession order, and the termination of the
lease contract (November 25, 1957)?; h) In view of the proclama-
tion of November 25,1957 by which the Sultan for himself and as
representative of the heirs purported to terminate the "lease" of
1878, what is the effect of his and the other heirs continuing lo
receive annual compensation until the end of 1960? With regard to
the purported reestablish men t of sovereignty in himself by thai
A BRIEF HISTORY OF PUBLIC INTERNATIONAL L A W 709
proclamation for the reason that the British annexation of 1946

was a breach of the 1878 agreement, how could there be a legal
breach when all that the 1878 agreement prohibited was any
transfer by the Company of its rights without the consent of Eng-
land, and not a transfer without the Sultan's consent — that iB to
say — how could there be a breach when a right to give or to deny
consent was not reserved to the Sultan? (Questions raised by
Ghazzali); i) What is the legal effect of our not making a reserva-
tion about Sabah (since 1946 when Britain first began giving annual
reports regarding Sabah, a territory it was administering) — not
until December, 1962 (16 years later)? How can was explain the
silence of the Sulu Sultan and the Philippine Government thru
our Secretary of Foreign Affairs? (Questions raised by Ghazzali);
jf What is the legal effect of our not tiling the case before the
International Court of Justice at the time when Britain still had
control over Sabah (before the Federation of Malaysia was es-
tablished) — as soon as the Anglo-Philippine talks broke down in
February, 1963: (Britain at that time could not validly resist the
jurisdiction of the World Court). (Questions raised by Ghazzali); k)
Assuming that our claim was valid once upon a time, has its validity
in any way been affected by laches, abandonment, or prescription?
What is the significance of Republic Act 3046's original and non-
reservation about Sabah? What is the effect of the present res-
ervation as to Sabah — as stated in the same Act as amended
recently?; I) What is the legal effect of our Government's desire to
sue Malaysia without also suing Indonesia when the portion of the
territory involved are now respectively in the possession of Malaysia
and Indonesia? (Questions raised by Ghazzali]]; (3) The problem of
sovereignty viewed from the angles of modern Political Science,
International Law, and the United Nations Charter [The question
under this category are: a) Is our claim to Sabah consistent with
the UN Charter, any international agreement we may have ena-
bled into, the Manila Accord and the Manila Declaration of 1963?;
b) In international and political law and science, which principle
is of more significance — the upholding of a State's sovereignty or
the principle of self determination? How can each be realized: In
whom does sovereignty lie?; c) Has there been national self-deter-
mination in Sabah?; d) What is the effect of our Government's
promise to abide by the findings of U Thant? (Questions raised by
Ghazzali); e) Was our recognition of Malaysia a recognition or a
State or of a government? With our recognition of Malaysia, may
the Philippines be said to be in estoppel?; f) What is the effect of
the existence today within the Malaysian Federation of the Sultan
of Sabah? What iB the extent of autonomy of Sabah within the

Federation?; the extent of Malaysian protection there? If other
members can easily secede (like Singapore), can Sabah likewise
secede? What are the rights of the Sabahans relative to Sabah and
Malaysia?; g) What is the legal effect or significance of Malaysia's
refusal to have the matter brought before the World Court?); and
(4) The legal problems that may arise should the Philippine claim
be recognized. [The problems presented hereunder follow: a) As-
suming a World Court decision in our favor, how do we enforce it?;
b) What would be the status of Sabah and the Sabahans as part
of the Republic of the Philippines? What would be the citizenship
of the Sabahans, especially those of the Chinese (blood) commu-
nity?; c) What would be the vested rights of the Sabahans as
against the proprietary rights of the Kiram heirs?; d) Can the
Constitutional Convention of 1971 include Sabah as part of the
Philippines and provide for the status of the Sabahans? Should
Sabah, thru the Kiram heirs, be represented by delegates to the
Convention?; e) What are the legal implications of the Sabah claim
relative to any future federation or confederation among Malaysia,
Indonesia and the Philippines?; f) What would be the legal effects
of outright Philippine annexation of Sabah either by statute or'by
overt acts?; and g) What are the possible legal rights of other
countries (such as Indonesia or China) to Sabah?|
Among the documents involving Sabah, the legal interpreta-

tion and study of which are sought under category (1), are the
following three deeds or contracts.
Document No. 1
RECOGNITION A N D A U T H O R I T Y I N FAVOR
OF T H E REPUBLIC OF T H E P H I L I P P I N E S
K N O W A L L M E N BY THESE PRESENTS:
That we, the living heirs of Sultan Jamalul Kiram, the
Sultan of Sulu, hereby declare and make manifest the fol-
lowing:
1. That without prejudice to such proprietary rights
as we have, the disposition of which will be subject to a later
agreement, we irrevocably recognize, admit, and accept the
ultimate sovereignty, title and dominion of the Republic of
the Philippines over the following described territory:
All territories and lands tributary to us on the mainland

of the Uland of Borneo, commencing from the Pandassan
River on the west, and thence along the whole east coast as
far as the Sibuku River on the south, and including all ter-
ritories, on the Pandassan River and in the coastal area,
known as Paitan, Sugut, Banggal, Labuk, Sandakan,
Chinabatangan, Mumiang, and all other territories and coastal
lands to the south, bordering on Dravel Bay, and as far as
the Sibuku River together with all the islands which lie within
nine miles from the coast.
2. That we hereby renounce, repudiate, set aside and
revoke any instrument, contract, document, or authority that
any or all of us may have given in favor of any individual,
entity, or association which contravenes or purports to con-
travene this manifestation of recognition; and
3. That we hereby accept and recognized the abso-
lute, exclusive and unconditional right of the Government of
the Republic of the Philippines to initiate, initiate, and
prosecute the claim, to the abovedescribed property thru any
and by an peaceful and amicable modes of international
settlement, including diplomatic negotiations, conciliation,
mediation, arbitration. Commission of Inquiry, report to the
International Court of Justice or to the United Nations, as
the circumstances may warrant, hereby adopting all that said
Government may do in accordance with this document of
recognition and authority.
W I T N E S S OUR HANDS A N D SEAL this 24th day of

April, 1962, in the City of Manila, Philippines.
(Sgd.) S U L T A N M U H A M M A D ESMAIL K I R A M
(Sgd.) DATU RASAMUDA P U N Y U N G A N KIRAM
(Sgd.) SITTI RADA K I R A M
(Sgd.) PUTLI T A R H A T A K I R A M
(Sgd.) P U T L I S A K I N U L I N K I R A M
IN THE PRESENCE:
(Sgd)
(Sgd)
712 rNTERNATIONAL L A W A N D WORLD POLITICS
SUBSCRIBED A N D SWORN to before me this 24th day

of April, 1962 at Manila, Philippines, by the following with
their respective Residence C e r t i f i c a t e s : S U L T A N
M U H A M M A D E S M A I L K I R A M , No. A-0553278, issued at
Jolo, Sulu, Jan. 31, 1962; D A T U RASAMUDA P U N Y U N G A N
K I R A M , No. A-0553279, issued at Jolo, Sulu, Jan. 30, 1962,
SITTI RADA K I R A M , No. A-0553277, issued at Jolo, Sulu,
Jan. 30, 1962; P U T L I T A R H A T A K I R A M , No. A
; P U T L I S A K I N U L I N K I R A M , No. A-0586942, issued
at Jolo, Sulu, Jan. 13, 1962.
(Sgd.) I. B. PAREJA
Secretary, House of Representatives
Document No. 2
MALACANANG
Manila
BY T H E PRESIDENT OF T H E P H I L I P P I N E S
T O A L L T O W H O M THESE PRESENTS S H A L L
COME, GREETINGS:
K N O W , Y E , that reposing special trust and confidence
in the integrity, prudence and ability of:
The Honorable E M M A N U E L PELAEZ

Vice President of the Philippines and
concurrently Secretary of Foreign Affairs
I, DIOSDADO M A C A P A G A L , President of the Philip-

pines, have invested him with full and all manner of power
and authority, for and in the name of the Republic of the
Philippines, to formally accept for the Republic of the Phil-
ippines the cession or transfer of sovereignty over the Territory
of North Borneo by His Highness Sultan Muhammad Esmail
Kiram, Sultan of Sulu, acting with the advice and authority
given by Resolution of August 29,1962, of the Ruma Bechara,
in Council assembled. Such Instrument of Cession as may be
accepted by the Honorable E M M A N U E L P E L A E Z under the
present authority iB to be transmitted to the Philippines for
further action in accordance with the Constitution and laws
of the Republic of the Philippines.
IN T E S T I M O N Y WHEREOF, I have hereunto set my

hand and caused the Seal of the Republic of the Philippines
lo be affixed.
Done in the City of Manila, Philippines, this 11th day of
September, in the year of Our Lord, nineteen hundred and
sixty-two, and of the Independence of the Philippines, the
seventeenth.
(Sgd.) DIOSDADO MACAPAGAL
By the President:
(Sgd.) SALVADOR MARINO
Executive Secretary
Document No.3
I N S T R U M E N T OF CESSION OF THE TERRITORY OF

NORTH BORNEO BY HIS HIGHNESS S U L T A N
M U H A M M A D ESMAIL KIRAM, SULTAN OF SULU, ACT-
ING WITH THE ADVICE A N D AUTHORITY OF THE RUMA
BECHARA, TO THE REPUBLIC OF THE PHILD?PINES
WHEREAS, His Highness Sultan Muhammad Esmail
Kiram, is lawfully the head of the Sultanate of Sulu;
WHEREAS, for the last two hundred and more years
the sovereignty, title and dominion over the Territory of North
Borneo have been been vested in the Sultanate of Sulu;
WHEREAS, on January 22,1878 Sultan Mohamet Jama!
A l Alam (or Sultan Jamalul Agham), then the head of the
Sultanate of Sulu, signed a deed leasing the Territory of North
Borneo to Gustavus Baron de Overbeck, and Alfred Dent,
representatives of a British company, for a consideration of
Five Thousand Dollars payable annually to him or to his
heirs and successors;
WHEREAS, on June 7, 1936, Sultan Jamalul Kiram,
who had succeeded lo the Sultanate in the year 1894, died
without any children but survived by certain heirs;
WHEREAS, in the year 1939, Dayang Dayang Hadji
Piandao, Putli Tarhata Kiram, Putli Sakinur in Kiram, Esmail
Kiram, Datu Punjungan Kiram, Sitti Marian Kiram, Sitti
Rada Kiram, Sitti Putli Jahara Kiram, and Mora Napaa,

claiming to be the heirs of the late Sultan Jamalul Kiram
entitled to receive the annual rental aforementioned, brought
a suit before the High Court of the State of North Borneo
(Civil Suit No. 16/39, entitled "Dayang Dayang Hadji Piandao
Kiram (0 of Jolo, Philippines and 8 others vs. The Government
of North Borneo and Others") for the purpose of having them
declared the heirs and successors of the Sultan entitled to
receive said annual rental;
W H E R E A S , on December 19, 1939. the High Court of

North Borneo rendered a decision declaring Dayang Dayang
Hadji Piandao Putli Tarhata Kiram, Putli Sakinur in Kiram,
Esmail Kiram, Datu Punjungan Kiram, Sitti Mariam Kiram,
Sitti Rada Kiram, Sitti Putli Jahara Kiram and Mora Napsa
as the "private heirs" entitled to receive what the said court
called "cession money" but which the heirs called "rental";
W H E R E A S , in the same decision of December 19, 1939,

the High Court of North Borneo stated that "the successor in
Sovereignty of the Sultan are the Government of the Philippine
Islands";
WHEREAS, on June 20, 1946, the British company in

whose representation Gustavus Baron de Overbeck and Al-
fred Dent obtained the lease aforementioned, transferred to
the British Government its rights and interests over the Ter-
ritory of North Borneo;
W H E R E A S , on July 10, 1946, the Territory or North

Borneo was annexed as a Crown Colony but inspite of the
fact that the British Government was aware of the decision
of the High Court of North Borneo of December 19. 1939.
declaring that the Government of the Philippines was the
successor in sovereignty of the Sultan and that there were
private heirs entitled to receive the rental or "cession money,"
neither the Philippine Government nor the private heirs were
notified of the annexation.
W H E R E A S , on November 25, 1957, His Highness Sul-

tan Muhammad Esmail Kiram, Sultan of Sulu, issued a
Proclamation declaring the lease of January 22, 1878 ter-
minated as of January 22, 1958, and declaring further that
after said date all the leased were deemed restituted to the
Sultan of Sulu;
WHEREAS, in a communication dated November 25,

1957, addressed to "The Successors in Interest of GustavuB
de Overbeck; Alfred Dent; and the British North Borneo
Company," notice was given of the decision of the Sultanate
of Sulu to terminate the lease effective January 22, 1958,
copies of the Proclamation and Notice of Termination having
been sent to the: British North Borneo Company, Jesselton,
North Borneo; the British North Borneo Company, London,
England; the British Embassy, Manila; the Minister of For-
eign Affairs, London, England; the Secretary of Foreign Af-
fairs, Manila; and the Secretary-General, United Nations, New
York City;
WHEREAS, on April 24, 1962, the living heirs of the

late Sultan Jamalul Kiram signed an instrument whereby
they irrevocably recognized, admitted and accepted the ulti-
mate sovereignty, title and dominion of the Republic of the
Philippines over the Territory of North Borneo, without
prejudice to such proprietary rights as the heirs of the Sultan
Jamalul Kiram may have;
WHEREAS, on August 29, 1962, the Ruma Bechara, in
Council assembled, gave its advice and authority to His
Highness Sultan Muhammad Email Kiram, Sultan of Sulu,
to ratify and confirm the cession and transfer of sovereignty,
title and dominion over the Territory of North Borneo to the
Republic of the Philippines as stipulated in the Instrument of
April 24, 1962;
WHEREAS, His Highness Sultan Muhammad Esmail
Kiram, Sultan of Sulu, has determined, that, in the interests
of the inhabitants of the Territory of North Borneo, the sov-
ereignty, title to the Republic of the Philippines;
W H E R E A S , the Honorable Emmanuel Pelaez, Vice
President of the Philippines and concurrently Secretary of
Foreign Affairs, has been authorized by His Excellency, the
President of the Philippines to accept the said cession on
behalf of the Republic of the Philippines.
N O W THESE PRESENTS WITNESS —

1. The Territory of North Borneo, and the full sover-
eignty, title and dominion over the territory, are hereby ceded
by Hin Highness, Sultan Muhammad Esmail Kiram, Sultan
716 I N T E R N A T I O N A L L A W A N D W O R L D POLITIC9
of Sulu, acting with the advice and authority of the Ruma

Bechara, to the Republic of the Philippines, fully confirming
and ratifying the stipulations in the Instrument of April 24,
1962.
2. The cession is hereby formally accepted on behalf
of the Republic of the Philippines by the Honorable Emmanuel
Pelaez, Vice President of the Philippines and concurrently
Secretary of Foreign Affairs.
I N W I T N E S S W H E R E O F , His Highness, Sultan
Muhammad Esmail Kiram, Sultan of Sulu, on his own behalf,
and Emmanuel Pelaez, Vice President of the Philippines and
concurrent Secretary of Foreign Affairs, on behalf of the
Republic of the Philippines, have signed the present Instru-
ment and have annexed respectively the seal of the Sultanate
of Sulu and the seal of the Republic of the Philippines.
Done at Manila, this 12th day of September, in the year

of Our Lord. 1962.
(Sgd.) S U L T A N M U H A M M A D ESMAIL K I R A M
Sultan of Sulu
(Sgd.) EMMANUEL PELAEZ

Vice President and concurrently
Secretary of Foreign Affairs of the
Republic of the Philippines
The aim of this article is to suggest answers to the
following legal questions concerning these documents:
( A ) Assuming the authenticity of the documents
a) of April 24, 1962
b) or Sept. 11, 1962
c) or Sept. 12,1962
Which of them, in the face of certain contradictions, are
basic documents, and which are not ?
( B ) What are the legal implications of said documents?
What are transferred by the Sultan of Sulu to the Philippine
Government in 1962 — sovereignty, dominion, both, or nei-
ther?
( C ) What are the legal effects of the Instrument or
February 1, 1966, executed by the heirs of Sultan Jamalul

Kiram II regarding their proprietary righto in North Borneo?
Suggested Answer to Question A

The instrument of April 24, 1962 is the instrument
whereby the living heirs of the late Sultan Jamaliel Kiram
"irrevocably recognized, admitted, and accepted the ultimate
sovereignty, title, and dominion of the Republic of the Phil-
ippines over the Territory of North Borneo, without prejudice
to such rights as the heirs of the said Sultan Jamaliel Kiram
may have." [Instrument of Cession of the Territory of North
Borneo by His Highness Sultan Muhammad Esmail Kiram,
Sultan of Sulu, Acting with the Advice and Authority of the
Ruma Bechara to the Republic of the Philippines (12th Para-
graph), Sept. 12, 1962; Paragraph 2 or the Instruments or
April 24, 1962.1. The instrument of Sept. 11, 1962, is the
instrument executed by President Diosdado Macapagal on
said date investing Vice-President Emmanuel Pelaez full
power and authority to formally accept for and in behalf of
the Republic of the Philippines, "the cession or transfer of
sovereignty over the Territory of North Borneo by His High-
ness Sultan Muhammad Esmail Kiram, Sultan of Sulu, acting
on the advice and authority given by Resolution of August 29,
1962 of the Ruma Bechara in Council assembled." This in-
strument further provides that "such Instrument of Cession
as may be accepted by the Honorable Emmanuel Pelaez under
the present authority is to be transmitted to the President of
the Philippines for further action in accordance with the
Constitution and laws of the Republic or the Philippines."
The instrument or September 12, 1962 (this was executed the
very day after the instrument of authority granted Vice-
President Pelaez), is the instrument of cession itself entered
into between the Sultan in his own behalf and Vice-President
Pelaez in behalf of the Republic of the Philippines. The most
important paragraphs of this instrument provide that "the
Territory of North Borneo, and the full sovereignty, title, and
dominion over the territory, are hereby ceded by His Highness
Sultan Muhammad Esmail Kiram, Sultan of Sulu, acting with
the advice and authority of the Ruma Bechara, to the Republic
of the Philippines, fully confirming and ratifying the stipu-
lations in the Instrument of April 24, 1962," and that "the
cession is hereby formally accepted on behalf of the Republic
of the Philippines by the Honorable Emmanuel Pelaez, Vice-

President of the Philippines, and concurrently Secretary of
Foreign Affairs."
It is obvious that all the three instruments are "basic
documents" relative to our Sabah claim, the first being the
preliminary agreement on the cession, the second being the
authority granted the negotiating official, and the third being
the confirmation or ratification of the first, and the resultant
product of the second. Without these instruments, the Repub-
lic's posture in making the claim may, rightly or wrongly be
criticized by both the heirs of the late Sultan and the
Malaysian Government. With the execution of the instruments,
there can be NO DOUBT that the Republic of the Philippines
is really the proper party in interest in prosecuting the claim.
The alleged (but unspecified) contradictions in the in-

struments do not exist.
Suggested Answer to Question B

The next questions that require answers are, to repeat,
as follows: What are the legal implications of the documents?
What were transferred by the Sultan of Sulu to the Philip-
pine Government in 1962 — sovereignty, dominion, both, or
neither?
Perhaps, it is advisable to answer the second question
first. There is no doubt that the instrument of April 24, 1962
expressly transfers "ultimate sovereignty, title, and domin-
ion." (Paragraph 12 of the Instrument of Sept. 12, 1962;
Paragraph 2 of the Instrument or April 24, 1962.). The in-
strument of Sept. 12, 1962 also expressly transfers to the
Republic of the Philippines "the full sovereignty, title, and
dominion over the territory." (Paragraph 16 of the Instrument
of Sept. 12, 1962). Please note, however, that in both in-
struments, there was a reservation made as to the propri-
etary rights of the Sultan's heirs. (Paragraph 2 of the Instru-
ment of April 24, 1962; Paragraph 16 of the Instrument or
Sept. 12, 1962).
Some legal implications or the documents which ap-

parently are adhered to by our Philippine Government, would
seem to be the following: firstly, that prior to the execution of
the instruments, the Philippine Government had recognized
sovereignty rights of the Sultan of Sulu over Sabah, otherwise

there would have been no necessity for accepting the cession;
secondly, that while the Sultan of Sulu was a citizen of the
Philippines, and while Sulu itself was part and parcel of the
Philippines, the Sultan was still a person exercising sovereign
powers over certain territory, not ordinarily covered by
Philippine jurisdiction; thirdly, assuming the validity of the
instruments, the Philippine Government, thru the President,
can acquire sovereignty and dominion over additional terri-
tories thru cession effected by the former sovereign; and fi-
nally, that the Philippine claim to Sabah is not as successor
to the United States and Spain, but as successor to the
Sultanate of Sulu. (From these implications, 't is cle?r that
we are not bound by any adverse renunciation of Sabah that
may have been at one time or another been made by either
or both the United States and Spain. As well-stated by Senator
Arturo M. Tolentino — "while it is true that the Philippines
is a successor to the United States in the territory of the
Philippine Archipelago, that relationship does not apply to
Sabah or North Borneo, which passed to the Republic of the
Philippines by cession from the Sultan of Sulu. As regards
Sabah, we are bound by the acts of the Sultan, but not by
acts of the United States." (Manila Times, Friday Dec. 27,
1968).
In fact, the document hereinabove mentioned brings into

focus the joinder of issues in the Sabah dispute. As aptly said
by Senator Arturo M. Tolentino on October 25, 1968 before
the United Nations General Assembly, the following is the
ISSUE:
"The Philippines asserts sovereignty by virtue of a
deed of cession from the Sultan of Sulu and disputes the
title of Malaysia on the grounds that the original right
given by the Sultan of Sulu to Overbeck and Dent, which
successfully passed to the British North Borneo Com-
pany, the British government, and now Malaysia, was
not a cession but of lease.
"Upon the other hand, Malaysia assails the suffi-
ciency and legality of the basis of the Philippine claim.
Having assumed all the rights and obligations of the
United Kingdom in respect of the State of Sabah as
from September 16, 1963, Malaysia justifies the title of
720 rNTERNATIONAL L A W A N D W O R L D POLITICS
its predecessor-in-interegt, the United Kingdom, by the

fact of continuous occupation, administration, and exer-
cise of soverignty.
T h e issue thus joined iB clearly a legal issue. The
method of judicial settlement is one of the means pro-
vided in the Charter of the United Nations and contem-
plated in paragraph 12 of the Manila Accord, signed by
both the Philippines and Malaysia and quoted repeat-
edly. That is why we have invited Malaysia to agree to
the submission of this legal dispute to the International
Court of Justice, which obviously is the most appropri-
ate body to pa6S the legal issues, between States."
Suggested Answer to Question C

Finally, the question has been asked: What are the legal
effects of the instruments of February 1, 1968, executed by
the heirs of Sultan Jamalul Kiram II regarding their pro-
prietary rights in North Borneo?
On February 1, 1968, the heirs of said Sultan unilaterally
executed an instrument entitled "RECOGNITION OF THE
A U T H O R I T Y OF T H E P R E S I D E N T OF THE P H I L I P P I N E S
TO ACT ON B E H A L F OF THE HEIRS OF THE SULTAN
OF S U L U REGARDING T H E I R P R O P R I E T A R Y RIGHTS IN
N O R T H B O R N E O ( S A B A H ) . " The Instrument expressly
provides that said heirs of the Sultan "recognize the rights
and authority of His Excellency, President Ferdinand E.
Marcos, to act for and on their behalf at any opportune time
with a view to effecting a settlement of whatever proprietary
rights and benefits the heirs may be entitled to; to take up,
discuss, negotiate, and settle this matter with any person or
persons concerned, and to empower any persons or officials of
the Philippine Government to exercise the rights and authority
herein recognized."
A few observations may perhaps be made respecting this

instrument of February 1, 1968.
(a) Firstly, the instrument is not a "power of attorney"
granted to the President of the Philippines. The reason is
obvious: authority was not being given to the President: it
was merely being recognized. (To recognize authority in
someone is different from granting him authority. For instance.
students recognize (not grant) the authority of the professor.

It is the school administration, and the very essence of teach-
i n g itself, that grant such authority.). As a matter of fact, the
very first word of the title of the instrument is "Recognition."
Besides, to grant or give such authority would be to make the
President an agent (an extension of the personality of the
heirs), subject to the control and order of the principal, namely,
the heirs. Obviously, under our governmental set up, this
would be void and unconstitutional.
(b) Secondly, the authority of the President of a coun-

try (as the representative of MB State) to act in behalf of
private persons or citizens against a foreign State, is granted
by the principles of Public International Law. A citizen of one
nation wronged by the conduct of another nation, must seek
redress thru his own government. (U.S. v. Dickelrnan, 92 U.S.
520, 23 L. Ed. 742. In this case, the United States Supreme
Court further held that the citizens' own "sovereign must
assume the responsibility of presenting his claim, or it need
not be considered. If this responsibility is assumed, the claim
may be prosecuted as one nation proceeds a g a i n B t another,
not by suit in the courts, as of right, but by diplomacy. . . " ) ;
the citizen cannot directly by himself enforce his right against
the foreign State. (The reason is clear: the citizen cannot, in
the courts of his own State sue the foreign State, for no ju-
risdiction can be obtained by said courts, in accordance with
the principle of the equality of sovereign States; neither can
he sue in the courts of the foreign State, for a State cannot,
in its own courts be sued without its consent.)
(c) Thirdly, this right of a State to pursue a claim in

behalf of its own citizens applies, whether, the injury be com-
mitted in its own territory or in the territory of the foreign
State. (See Abad Santos, Cases on International Law,
pp. 470, 472, 475), and whether the injury be physical or the
result of a contractual breach. Hence, in one case, the Illinois
Central Railroad Co., thru the United States Government,
sued the Government, Railway Administration of Mexico for
damages ($1,807,531.36 with interest), as a result of a breach
of contract, i.e., Mexico's failure to pay the unpaid balance
due on 91 locomotive engines sold and delivered by said Illi-
nois railroad company (a private corporation) to the Govern-
ment Railway Corporation of Mexico.). This right, however.
can only be exercised if the State is REQUESTED to do so,

by the citizen or citizens affected. (See Bishop, International
Law Cases and Materials, 2nd ed., p. 631).
(d) Fourthly, the instrument of "recognition" cannot be
deemed superfluous because, as has already been intimated,
the "recognition" virtually is a request for the Philippine
Government to take up, in the international level, the cudg-
els for the heirs' proprietary rights over Sabah (a request
that is necessary before the State can officially act); and
because, if it had not been made, Malaysia would have a
justifiable cause to refuse to settle or to delay the settlement
of our Sabah claim (be it remembered that in an official com-
munication of then Vice-President Pelaez, concurrently Sec-
retary of Foreign Affairs to the British Ambassador under
the date of September 12, 1962 — Mr. Pelaez had stated —
"The Philippine Government wishes to discuss at the confer-
ence table the status of North Borneo in all its aspects, in
particular, the question of (1) sovereignty and (2) the pro-
prietary rights of the heirs of the Sultan of Sulu." Now then,
considering the fact that in the instruments of cession of
sovereignty of April 24, 1962 and Sept. 12, 1962. the heirs
have expressly made reservations as to their proprietary rights,
it would not be proper for the Philippine Government to have
expressly made reservations as to their proprietary rights —
unless this instrument of February 1, 1968 were first ex-
ecuted.
( e ) Fifthly, the taking up by our Government of the

heirs' proprietary claims would not really be the advocacy of
mere private rights, but of N A T I O N A L or P U B L I C RIGHTS.
(Claims of this nature "are not private claims but government
claims arising out of injuries to private citizens or their prop-
erty, inflicted by the government against which they are
presented." As between the State and the citizens, the claim
may be in some sense regarded as private; but when the claim
is taken up and passed diplomatically, it is as against the
foreign government, a national claim. (See VI Moore Int. Law
Digest, p. 616). When on the request of the persons nffecled,
a claim is espoused, the nation's absolute right to control it
is governed not only by the interest of the particular claimant
but by the larger-interests of the whole people of the nation.
(Bishop, International Law Cases and Materials, 2nd ed..
p. 631). It is clear that in presenting such a claim, the Gov-

ernment acts in its sovereign capacity and N O T as an agent
or trustee Tor the claimant or claimants. (See U.S. v. La Abra
Silver Mining Co., 29 Court of Claims 432).
(0 Sixthly, the citation of President Ferdinan E. Marcos
by name in the instrument does not imply any recognition of
his authority as the President of the Philippines. (In many
official communications. President Marcos is referred to as
such, in his capacity as President of the Republic, and not as
a private person.)
(g) Seventhly, the recognition of authority is with re-
spect to the right of the President to negotiate with any "per-
son or persons." In view of the lack of qualification, the
"persons" indicated may be natural or juridical, and the
latter clearly would include foreign governments or States.
(h) Finally, premises considered, it is submitted that
the instrument of February 1, 1966 is legal, constitutional,
and necessary.
PRESENT STATUS OF THE RP CLAIM TO SABAH
In an attempt, two and a half decades later, to broker an

agreement among the heirs of the Sultan of Sulu on their propri-
etary claim to Sabah as part of the ongoing process to firm up the
Philippine position on the issue, Philippine President Fidel V.
Ramos met with Jamalul Kiram I I , his immediate family members
and advisers on January 20, 1993 at Malacanang Palace, in the
hope of unifying the clan's claim to the Sabah territory. Kiram,
who claimed to be the third legitimate Sultan of Sulu, had threat-
ened to wage war against Malaysia, unless it returns control of
the oil-rich State to the family. He also claimed that the Philip-
pines has no right over Sulu and Sabah since these were not part
of Lhe Philippine territory ceded to the United States by Spain in
the Treaty of Paris. (See Bobby Capco, "Ramos to Broker Agree-
ment Among Sultan of Sulu's Heirs on Sabah Claim,'' The Phil-
ippine Star, January 23, 1993, p. 6).
The Philippine claim to Sabah, as previously mentioned, which
was first established by former President Diosdado Macapagal in
1962, had been hampered by a conflict among the heirs of the
Sultan of Sulu. 'Hindi sila magkasundo kung sino ang magsasalita
para sa pamilya ("They cannot agree on who among them will
speak for the family"), said a Palace official. All of the Sultan's
nine children have died, leaving the hereditary rights to Sabah to
about 1,000 children, grandchildren, and great-grandchildren.
Kiram told the President that he represents six of the legitimate
heirs of the Sultan of Sulu, or a majority of the nine legitimate
heirs. With Kiram at the meeting were Datu Fuad Kiram, the son
of the late Datu Esmail Kiram who asked Macapagal to stake the
Philippine claim to Sabah, Datu Firdaussi Abbas and Raja Mula.
Foreign Affairs Undersecretary Rodolfo Severino said the Malaysian
government is willing to settle the heirs' proprietary rights to
Sabah, but it is confused on who to deal with. (Ibid.)
President Ramos told Kiram and relatives that the heirs will
be regularly consulted by the joint council on the Sabah issue,
which had created a Proprietary Claims Committee. The bipartisan
Executive-Legislative Council on the Sabah issue is now trying to
reconcile the various positions on the Philippine claim. Nonethe-
less, Ramos told Kiram that there is need for a united stand be-
tween the heirs and the government, i.e., to speak with one voice.
The Sabah issue heated up again in the wake of the Presi-

dent's early February 1993 State Visit to Malaysia, whose relations
with the Philippines cooled because of the country's claim to Sabah.
The State Visit is the first step in the relations between Manila
and Kuala Lumpur. Be it noted that although both countries are
members of the Association of Southeast Asian Nations ( A S E A N ) ,
there had been no exchange of official visits (until the February
State Visit) between their Heads of State owing to the Sabah
conflict.
Philippine Senator, Dr. Gloria Macapagal-Arroyo (daughter

of former Pres. Macapagal), mused that "responsible governments
do not drop territorial claims; many claims have been pending for
centuries until settled by international law."
ASEAN REGIONAL SECURITY

IN THE POST-COLD WAR ERA
23
With tension-filled conflicts renting the air in many parts of
the world, the Association of Southeast Nations or A S E A N has
'"See Dr. Ranhilio Callangan Aquino, O.P.. "The Legal Aspects of Iniorna-
tional Conflict Resolution," The Lawyers Review. Vol. V I I . No. 7, July 31, 1993.
P 4
frown wmrj. For one, it has changed its notion of "security," veer-
ing away from iti traditional meaning in the military sense. "Eco-
nomic security* has been installed in its place, occupying a veri-
table nerve center.
In the realpolitik interpretation of world politics, "the exist-
21
ence of an anarchical international law system itself is one in
25
which a State must fend for its own survival." This explains why
member-countries of the ASEAN have banded together via "mul-
26
tilateral cooperation in the security environment."
The key to mutual peace is cooperation, knowing fully well
27
that "wars begin in the minds of men." Did not Sun Tzu say that
"to win one hundred victories in one hundred battles is not the
2
acme or skill?" *
9
Like wars, regional conflicts provoke defense spending among
the concerned actors conjecturing images of insecurity, for "when
arms take precedence over needs basic to human development,
people are not secure. But the debate is in flux: the essence or
security, the threats to it, and the means to achieve and preserve
50
it needs to be appraised."
After a decade of runaway military spending, the mid-nineties
31
may provide an opportunity for redirecting security policies so as
to allow governments to free the resources needed to address
-'See Edgar do C. Paras, Jr., "Recent Trends in International Law," UST

Journal of Graduate Research, Vol. 15, No. 1, Oct. 1985, p. 42.
^See Daniel S, Papp, Contemporary International Relations: Framework
for Understanding (1986).
'"•James D. Lewis, "Southeast Asia: Preparing for a New World Order," The
Washington Quarterly, Winter 1993, p. 187.
7
• B.F. Skinner. Beyond Freedom and Dignity, 1972, p. 7.
"See Rcnato de Castro, "Ways or War: A Comparative Study of the Po-
litico-Strategic Theories of Sun Tzu and Carl von Clausewiu," Praris. Vol. V. 1991-
1993, p. 89
"See Chuen-mei Pan and Liang-Shing Fan, "Economics Tor Military Ex-
penditure in the Asian Setting." The Philippine Economic Journal, Number
Sixly-Nine, Vol. XIX. Nos. 3 and 4, 1990, pp. 50-64.
"Michael Renner, "Enhancing Global Security," State of the World, 1989,
p. 132.
"See Theodore H. Moran, "International Economics and National Secu-
rity," Foreign Affairs, Winter 1990-91, p. 84.
32
pressing social, economic, and environmental problems across the
35
globe.
Whatever arguments are made, pro or con, the end of the Cold
War has Asian countries racing to stock up their arsenals." This
is contrasted with the worldwide military spending, which, as a
proportion of economic output, has declined 25% between 1986
:,i
and 1992, and should drop another 30% by 1998.
As earlier pointed out, no longer is the concept of "security"

confined to its traditional meaning in the military dimension. Dr.
Paul Kennedy, in his Preparing for the Twenty-First Century (1993),
placed it in proper perspective when he enthused that "there now
exist vast non-military threats to the safety and well-being of the
peoples of this planet which deserve attention."
These "non-military threats" can only be gauged in economic

36 1
terms, considering that the new focus of foreign policy ' is the
establishment of economic diplomacy.™ (The object of economic
diplomacy is to help secure the external resources required for the
39
survival and development of the economy. ). The cause celebre is
buttressed by a remark of the President of the United States, Bill
Clinton (born William Jefferson Blythe I V ) who envisions a "world
in which nations compete more in economic and less in military
40
terms."
32
S e e FlorenLino P. Feliciano, The External Debt, Hague Academy or In-
ternational Law's Centre Tor Studies and Research in International Law and
Internationa] Relations (1992).
"See Edgardo C. Paras, Jr., "International Law and Regional Security."
Business Star, Nov. 17, 1993, p. 4.
34
S e e Ranjan Roy of New Delhi comment, and cited by the Sunday
Chronicle, March 7, 1993.
^The International Monetary Fund, "Study on Worldwide Military Spend-
ing," September 22, 1993.
M
S e e Miriam Defensor Santiago, International Relations, 1975, p. 3.
37
S e e Edgardo C. Paras, Jr., "RP Foreign Policy," Business Star, January
fi, 1993. p. 4.
M
S e e Secretary of Foreign Affairs Roberto R Romulo's speech delivered at
the Rotary Club of Manila on September 2, 1993.
*The legal mandate for economic diplomacy in the Philippines is estab-
lished by Executive Order 74, signed by President Fidel V. Ramos on March 29.
1993.
*"See United States Information Agency, November 1992 on "Bill Clinton
42nd President of the United States of America."
1
Foreign policy, as "another name for a nation's security,"* to
borrow the characteristic language of Philippine Senator Bias Ople
(Chairman of the Senate Committee on Foreign Relations), has
been "ramified into a whole maze of derivative issues such as
trade, investment and other exchanges, and the endless amenities
of international relations." ThiB posture accounts for the emer-
gence of regional trading blocs (the A S E A N Free Trade Area
[ A F T A ] , the North American Free Trade Agreement [ N A F T A ] , and
the European Community [Common Market], as well as the fif-
teen-member APEC (the Asia Pacific Economic Conference) and
the growth triangles in Asia, the most economically vibrant but
41
geopolitically perilous region in the world.
As the megastar continent of economic growth and producer
of a larger fraction of world output than any other, such as North
America or Europe, it comes as no surprise that foreign traders
1
and investors wish to cash in on new opportunities.* With that
status. Asia, indeed, has "more to gain from international trade
liberalization than probably any other region.""
Adapting iLself to the evolving scene," the ASEAN in its historic
Fourth Summit in Singapore, agreed to: (1) Establish an ASEAN
Free Trade Area ;AFTA) within 15 years, and in the interregnum to
implement a Common Effective Preferential Tariff (CEPT); (2) Intensify
economic cooperation within ASEAN and between ASEAN and other
countries; and (3) Endorse the formation of growth triangles, and other
cooperative arrangements not needing participation by all six ASEAN
member countries (Singapore, Malaysia, Indonesia, Thailand, Brunei,
and the Philippines). As matters stand now, "trade liberalization is
the wave of the future, [although] no free trade agreement anywhere
in the world can succeed without the accompanying legal system to
46
support it."
"See Loren Legarda, "Media and Security." Manila Bulletin, November 10.
1993, p. 10
"Shunji Tuoka, "A Shrinking Tiger," Newsweek. November 15, p. 19.
"See Roy J. RulTin, "The Role ofForegn Investment in the Economic Growth
of the Asia and Pacific Region," Asian Development Bank Review, Vol. II, No. 1,
1993. p. 1.
"The Asian Wall Street Journal, May 12, 1992.
"See Edgardo C. Paras, Jr.. "Asia-Pacific Century," Business Star, Nov. 19,
1993, p. 4
**Artemio V. Panganiban, Legal Problems in International Trade Spawned
by the ASEAN Free Trade Area (AFTA). A 16-page paper read during the XVlth
World Law Conference (Manila) on October 27. 1993.
Undeniably, regional economic blocs" like AFTA,*" NAFTA,'*

and the European Community are compatible with the multilat-
eral trading system of the General Agreement on Tariffs and Trade
50
( G A T T ) . However, questions on whether regional free trade ar-
rangements will ultimately converge toward multilateral free trade,
and in what form, cannot yet be answered and will depend on
future political as well as economic relationships.
One such economic relationship is the advent of growth

triangles,™ which are predicted to become "more successful than
A F T A because A S E A N economies are more or less in the same
52 5 1
level of development, with Singapore the only one above the rest." -
Economic growth triangles are the result of the changing
nature of the nation-State. Opined Lee Poh Ping, economics pro-
fessor of the University of Malaya: T h e State is too small to
accomodate the problems of the macroeconomy, like harmonizing
economic policies, trade and exchange rates. At the same time, it
is too big to cope with microeconomic problems like creating eco-
nomic opportunities. Because of this, people are no longer worried
about the sacrosanct nature of State sovereignty. Certain things
that the nation-State cannot handle, they leave to the sub-regional
area or to the supra-regional area." For the "nurturing and har-
nessing of East ASEAN's potentials can only mean the rise of sub-
41
See Ramon V. del Rosario. "The Philippines and the New Global Environ-
ment." A speech delivered before the Rotary Club or Manila, May 28, 1992.
"See Lori Eduardo, "Philippine Industry: Before and AFTA," Manila Inc.,
October 1992, p. 33.
4
*See Washington Economic Reports, " N A F T A Would Help Mexico Most,'
July 28, 1993. pp. 1, 4 and A Budgetary and Economic Analysis of the North
American Free Trade Agreement, July 1993. See also Howard Fireman and Bob
Cohn, "Big Brawl About N A F T A , " Neuisweeh, November 15, 1993, p. 42.
"Ernest H. Preeg, "The Compatibility of Regional Economic Blocs and the
GATT," The Annals of the American Academy AAPSS, 526, March 1993.
"See R. del Rosario, supra, note 47 and Bobby Capco, "ASEAN Endorses
Ramos' Proposal for Creation of East ASEAN Growth Area," Philippine Star,
October 13, 1993, p. 6.
"Manila Bulletin, "ASEAN Sheds Economic Borders With Growth Trian-
gles," October 18, 1993, p B-10.
a
Ibid. Economic tiger Singapore took the lead role, building an industrial
park in Batam island in the Riaus, where more than 150 transnational operate
Jobor is currently experiencing a boom as Singaporean investors, attracted by its
cheap labor, flood in. (See Manila Chronicle, "Editorial: Of Growth and Tnan
glea," September 23, 1993, p. 41.
regional dragon economies whose complementation with mother

u
countries are important and delicate aspects of amelioration."
Rightly or wrongly, the consensus is that a policy of making
competitiveness for A S E A N the name of the game, would only
hurt the region now, this, despite the increasing organic economic
integration that will soon make the area independent of outside
55
markets. For that matter, Asian governments appear to be opting
to join forces with the U.S. to lobby for global free trade under the
58
auspices of A P E C . For Winston Lord, U.S. Assistant Secretary of
State for East Asian and Pacific Affairs, APEC "is not a regional
57
trading bloc but a building bloc for global, freer trade." Potentially,
A P E C could be transformed into the world's most powerful trade
group, including as it does the fastest growing economies with a
combined market of 2 billion people and a combined Gross National
Product ( G N P ) of $13 trillion. Nevertheless, the possibility of
APEC evolving into another trade bloc, has repeatedly been re-
5
jected * by the 6-member A S E A N , which is considered the core of
59
APEC.
For his part, President Clinton knows which part of the world
holds the butter, repeatedly stressing the importance of APEC as
a means to keep the U.S. as the world's most powerful nation. But
while he has called for "a new Pacific community" sharing in the
region's prosperity and commitment to democratic values, America's
defense responsibilities seem to be lacking.
Following the United States reduction of its armed forces and
concentration on economic revival, countries in Southeast Asia
and the South Pacific fear they are sinking in American strategic
priorities, despite U.S. denials. The United States pulled its re-
^Buddy del Rosario, "Building the Blocs of the East ASEAN Bloc." Phil-
ippine Graphic, November 12, 1993, p. 38.
5S
Edgardo C. Paras, Jr., "Asia's Growth." Business Star, June 2. 1993,
p 4 and E C . Paras, Jr. "Asia-Pacific Century, "Business Star, Nov. 19, 1993, p.
4.
''Laurence Zuckerman, "Asia's Strang Growth Offsets West's Protectionist
Moves Breaking Blocs." The Asian Wall Street Journal, May 12, 1993, p. 1.
"Manila Bulletin, "APEC No Trade Bloc, U.S. Vows.' November 6, 1993.
p. B-5.
"See Roberto Coloma, "ASEAN Wary of New Trade Bloc in APEC," Manila
Bulletin, November 10, 1993, p. B-l.
"See Monicca B. Egoy, "AFEC Members to Forge Trade, Investment
Agreement in Seattle," Business Star, November 10, 1993. pp. 1. 5.
INTERNATIONAL LAW AND WOBLD POLITICS
m a i i i i n g foTOM out of the Pmhppinea in 1992; American troops

stationed in Japan, South Korea, and U.S. territories in the West-
ern Pacific have been cut in recent years to 100,000, from 135,000.
Concerned with such grim realization, Philippine President Ramos
in his one-on-one meeting with Clinton in Washington, D.C., on
November 23, 1993, called for the U.S. to continue its military
involvement in Asia. Singapore Senior Minister Lee Kuan Yew
has earlier warned that Asia would shift its forces from econo-
mies to defense as old suspicions and animosities would resur-
face if the U.S. withdrew from the region. Said he: I f the United
States packs up, then all the ancient suspicions and animosities
between Japan and China, Japan and Korea, and Korea and China
and the fears of A S E A N for China and Japan would shift the
focus from the positive which we have achieved to defense and
security.""
So deep do the fault lines of suspicion and mistrust run

between Tokyo, Beijing, and their neighbors that an American
disappearing act would almost certainly be destabilizing.*' China
6
is nuclear-armed * and Japan, no longer ruling out the possibility
of producing its own nuclear weapons." While Japan spends only
1% of its G N P on defense and prides itself on being a peaceful
64
nation, neighbors regard it as a potential threat to regional se-
curity. The worry is due to Japan's mighty economy. In fact, Ja-
pan's current account surplus has grown to a record $63.71 billion
for the six months thru September 1993.'*
As to China's incursions and insistence to bully its way to the

Spratly Islands, despite the former's doublespeak, only a matter of
time will determine how far China's adventurism is.
""Manila Bulletin. "U.S. Pledges Stronger Tics With ASEAN Nations." May
18. 1993, p. 2.
6l
B i l l Powell, "Asia's Power Struggle," Newsweek, November 15. 1993. p.
14.
w
S e e Ramon Isberto, "Battle of the Giants: Geo-Political Rivals. Geo-Eco-
nomic Foes," Manila Bulletin. June 10, 1993. p. 11.
"Selig Harrison, "The 3-Comered Nuke Suspense in Asia," Washington AMI..
cited by Manila Bulletin, November 5, 1993, p. 11.
"See Leocadio de Asis, Japan: Bodv and Soul I Manila: Ren Book Store.
1993).
"See International Herald Tribune. November 6-7. 1993. cited by Sii.sinf.ss
Star, "Business Memo: Japan." November 9. 1993. p. 2.
Quite expectantly, the A S E A N members are worrried over

6 6
the Spratlys unanimously declared by all and sundry as the next
67 68
possible flashpoint in the region.
The Spratly Islands (known to the Chinese as the Nansha
Islands, to the Vietnamese as the Truong Sa and to the Philip-
pines as Kalayaan) are a group of islets, coral reefs and sandbars
in the South China Sea dispersed over 600 miles (965 km), which
are claimed by the People's Republic of China, the Republic of
China (Taiwan), Vietnam, Malaysia, Brunei, Indonesia, and the
Philippines.
The Spratly Islands lie nearly 300 miles (480 km) west or the
Philippines island of Palawan, slightly over 300 miles east of
Vietnam and about 650 miles south of Hainan, the nearest Chinese
territory. All the islands are very small; the largest, Itu Aba (known
to the Chinese as Taiping), has an area of only 90 acres (36 hec-
tares). They occupy a position of strategic importance, however, as
they command the sea passage from Japan to Singapore. Oil was
discovered in 1976 at Reed Bank, midway between Palawan and
the Spratlys, and has been developed by the Philipines since 1979.
The Philippines bases its claim on proximity and administrative
control, but has laid no claim to Spratly Island itself which lies
over 200 miles (320 km) south-west of the main group of islands.
In May 1956, after a private Philippine expedition had sur-
veyed and occupied a number of the islands, the Philippine Gov-
ernment laid claim to them for the first time. This claim was
disputed by China, Taiwan and South Vietnam, and a South Vi-
etnamese garrison occupied Spratly Island in August 1956. After
the Taiwan garrison on Itu Aba had fired on a Philippine fishing
boat, the Philippine Government sent a note in July 1971 de-
manding their withdrawal. At a press conference on July 10, 1971,
President Ferdinand E. Marcos of the Philippines maintained that
"'Lee Lai To, "Security Issues or the South China Sea in the Post-Cambo-
dian Era," Foreign Relations Journal (FRJ), Vol. VIII, No. 1. March 1993; Julius
Caesar ParreAas, "Geopolitical Dimensions or the Spratly Islands Dispute," FRJ,
id. and Gil S. Fernandez. "Proposed Solution to the South China Sea Conflict."
FRJ, id
H7
See Edgardo C. Paras, Jr., "The Spratly Islands Dispute," Business Star,
Oct 13, 1993. p. 4
""See Choon-ho Park, East Asia and the Law of the Sea (1993). See also
Claude A. Buss (ed.), National Security Interests in the Pacific Basin (1985).
after Japan renounced its sovereignty over the islands they had
become a de facto trusteeship of the allied powers, and that this
trusteeship precluded the setting up of garrisons on any of them
without the allies' consent. He stated that the Philippines were in
effective control of three of the larger islands, however, and ac-
cordingly, Philippine troops were landed on these islands.
The Philippine Government set up a military command on
Palawan in March 1976, and by March 1978 had established
garrisons on seven of the islands. It reached an agreement with
Vietnam in January 1978 to solve the dispute "in spirit of con-
ciliation and friendship," and concluded a similar agreement wiLh
China in the following March. At a press conference on Sept. 14,
1979, President Marcos made it clear that the Philippines confined
its claim to the seven islands under its occupation. These islands,
he declared, were "unoccupied, unowned and unpossessed islands"
which had not even been shown on maps before the Second World
War, and the Philippines had therefore occupied them as "new
territory or res nullius." In August 1980, the Vietnamese Foreign
Ministry made a protest to the Philippines over what it described
as the latter's occupation "of the Comodor Reef in "the Vietnam-
ese archipelago of Truong Sa."
After a decade and two, and a "standoff," Philippine Senator

Leticia Ramos Shahani (sister of PreB. Fidel V. Ramos) believes
that, with the impending implementation of the UN Law of the
Sea, ( U N C L O S ) , there is an urgent need to promulgate a definite
65
national policy on the territorial disagreement over the Spratly. '
In a 1992 resolution she filed at the Senate, Shahani said:
"Pursuant to the principles set in the U N C L O S and the genera)
principles of international law, the Philippines has to define thru
appropriate legislation its archipelagic baselines. [This necessitates]
the amendment of the Baselines Law™ to redraw the archipelagic
baselines to include the Kalayaan island group. The enforcement
of the U N C L O S would automatically mean a gain for the Philip-
pines as an archipelago of 652,800 square miles for its maritime
area; this includes the territorial sea drawn 12 nautical miles
from the archipelagic baselines, the contiguous zone of another 12
^ S e e Manuel F. Almario. "Flash Point," Philippine Graphic, June 7, 19»3,

p. 10.
"Republic Act 3406, as amended by RA 5446.
nautical miles, and a 200-mile exclusive economic zone. The Phil-

ippines has sovereign rights over the vast area for exploring and
exploiting, conserving and managing natural resources whether
71
living or non-living, including State sea-bed and subsoil thereof."
Under the 1987 Philippine Constitution, the State is man-
dated "to protect the nation's marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zoneVatid reserve
1
its use and enjoyment exclusively for Filipino citizens.' '* But as "the
•weakest' militarily among the six countries seeking-4*r-"exercise
sovereignty- ovm the~Tfisputed7J3Jaiids -the Philippines cannot af-
T
ford to engage in a war over T h e Spratlys or Kalayaan. The

Philippines has no option but to pursue its claim on the diplomatic
front, backed [up] by steps on the domestic front that would
strengthen its claim, as suggested "by Sen. Shahani. As a last
resort, there is always the United Nations to appeal to."" None-
74
theless "talk talk is better than shoot shoot," as one Indonesian
75
diplomat quipped.
76
In order to attain regional security in the A S E A N , there-
fore, it is imperative that economic growth be in the forefront. The
U.S. is looked upon as the main protector "but for this to happen,
its leadership must have a foreign policy vision that is more far-
sighted and that looks beyond interest group politics and overcome
77
old Cold War mindsets."
Pointedly, averred Philippine Senate President Edgardo J.
7
Angara, "the future development " of the ASEAN legal order, if
that loose arrangement of declarations can be called such, should
''Almario, op.cit., p. 11.

'Ârticle XII, Sec. 2, par. 2.
"Almario, op.cit.
'•This is, according to S. Wiryono, the Indonesian Foreign Ministry's Direc-
tor-General or Political Affairs.
'''See Frank Ching, "Scientific Meetings Being Held to Reduce Spratlys
Tension, Far Eastern Economic Review, May 27, 1993. p. 30.
B
' See Jose T. Almonte, "Tomorrow's Security Issues and Today's Necessary
Responses." Address before Asia-Pacific Dialogue on Cooperative Peace Security.
Kuala Lumpur. June 9, 1993.
"Julius Caeaar Parrenas, Restructuring for Stability: Economic. Political,
and Security Dimensions of Japanese-Philippine-U.S. Relations in the 1990s, 1992,
p. 102.
;n
See Asiaweek. "United We Stand: The Community of Nations Must Be
Established Now," April 21. 1993. pp. 22-25.
734 I N T E R N A T I O N A L L A W A N D W O R L D POLITICB
7
perhaps, proceed on the present basis of continuing interaction, *
change being the law of international relations. For the chief aim
of A S E A N should be the maintenance of the balance of power in
the region., with the end in view that balanced power has tradi-
tionally sought, i.e., the independence of nations and the preven-
tion of hegemony on the part of any one of the ASEAN member-
BB0
countries.
The Clinton Administration has endorsed Asia-Pacific regional

fora for political and security matters, and said multilateral security
meets are viewed as "necessary to manage and prevent" such
things as arms race, or the efforts of a single power to dominate
1
a strategic region."
In fine, said Angara, "the instruments of balance include
conflict when all else fails, important not to lose sight of this so
that none are taken unawares and no impossible hopes of perma-
nent peace are raised. The balance of power has never been intended
2
to guarantee peace — only national freedom."" In any case,
"strengthening A S E A N is a job not only for the A S E A N countries
themselves, but for the U.S. and Japan, as well. For the sake ol
4
regional security and prosperity,*' it is well worth the effort."*
— 0O0 —
" S e e The Economist," A Survey of Asia." October 30th-November 5lh, 1993

™Edgardo J. Angara, "ASEAN Legal Order and Framework for Diplomacy
"ASEAN Law Journal, Vol. 2, 1986, pp. 27-28.
8
'Beth Day Romulo, "Asians Are Coming Together," Manila Bulletin. Maj
20, 1993. p. 10.
"Angara, op.ci(.
" S e e G.M. Taber, "Southeast Asia's Super Seven," Readers Digest, Junt
1993, p. 35.
M
Parrenas, supra, note 77 at 104. Anenl the road In prnsperity. Presidenl
Fidel V. Ramos or the Philippines in a Time interview (Nov. IS, 1993* enthused
that American Presidenl Bill Clinton should view the Philippines with a "fresh
outlook." Ramos said: T h e Philippines is back in business in the center of A sin
and boasts of a representative, democratic society that has been built on th»
principle of the rule of law," in line with Philippines 2000.

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Chapter 1

DEFINITION OF INTERNATIONAL LAW

For that matter, the international legal system may be said

'"Private International Law" (or "Conflict of Laws") is that part or the

CHINESE AND RUSSIAN DEFINITIONS OF

OTHER DEFINITIONS OF THE SUBJECT

'Wilson, Handbook of International Law, p. I .

(5) A B B A E B A N — International law is the law which the

COMMENT ON THE USE OF THE PHRASE

IMPORTANCE OF THE SUBJECT

(I) the maintenance of international peace and order: a rule

(2) the p r ^ f f * ' ™ of--State Hghtw and of fundamental hu-

There are at least three (3) important schools of thought as

$2$ The Positivist School

Public International Law is the common consent of Stat**. ThiB

THE CORRECT THEORY

IS INTERNATIONAL LAW TRUE LAW?

"Alberico Gentili, Classics of International Law, p. 1.

rule of action promulgated by competent authority for the common

^Thus, it ia understandable why Austin who considers law to be a superior

T h e making of the Charter waa the exercise of the

This is a peremptory norm of general international law from

community of States as a whole. The most eiplicit expression of

LEX POSTERIOR DEROGAT PRIORI' ^

suggests that if a law explicitly contravenes a prior treaty, or a

DOES THE UNITED NATIONS ORGANIZATION REALLY HAVE

This lack of full-fledged legislative powers on the part of the

^Paragraphs 3 and 4, and part of paragraph 5 of said Resolution (No. 1514

(2) Secondly, to achieve its avowed objectives, the UN is

It should be noted, nonetheless, that according to the Advi-

CLASSIFICATION OF PUBLIC INTERNATIONAL LAW

(y{ Conventional International Law — if the con Bent has

^Several States are involved.

(e) International Financial Law

HOW PUBLIC INTERNATIONAL LAW CAN BE OBSERVED

Private individuals, upon the other hand, can do their share

WHY PUBLIC INTERNATIONAL LAW IS OBSERVED

(a) Partly because of the conscientious conviction that

(b) Partly because of those subtle influences which

PUBLIC INTERNATIONAL LAW DISTINGUISHED FROM

T h e word 'sovereign' which means 'supreme' has in fact

" S e e Haas Kelsen, op. cit., pp. 401-403.

of the binding commitments of States with respect to the

"In these circumstances the rule of law among nations,

RELATION BETWEEN PUBLIC INTERNATIONAL LAW

**Tba Rule of L A W Among Nations, Background Information, April, I960,

IB Public International Law independent of Municipal Law?

Dualistic or Pluralistic View: According to the Dualists —

RELATION BETWEEN PUBLIC INTERNATIONAL LAW

"Kelsen, Principles of International Law, p. 404

"The Philippines renounces war ae an instrument of

T h e generally accepted principles of international law" in-

"The Interhandet Case, Decision of the Internationa] Court or Justice,

[NOTE: Regarding the incorporation of international law into

THE INTERHANDEL CASE

FACTS: Prior to the Second World War, a Swiss corporation,

7y» Kuroda v. Jalandonl

T h e Philippines renounces war as an instrument of

(2) With regard to the second contention, it cannot be

(3) With reference to the third allegation — be it noted

obligations contained in the treaties between the belligerent

Note: Elsewhere in the Constitution are provisions con-

RULE WTTH RESPECT TO FILIPINOS WHO HAVE