PUBLIC INTERNATIONAL LAW Mr. Benjamin A. Cabrido Jr. Professor, USJ-R College of Law
Chapter 1 GENERAL PRINCIPLES What is International Law?
Traditional:
That branch of public law which regulates the relations of states and of other entities which have been granted international personality. [Schwarzenberger, p.1]
Modern:
That law that deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relation with persons, natural or juridical. [American Third Restatement]
Division of International Law
Laws of Peace – that which consists of the rules of international law on the rights and obligations of states in time of peace;
Laws of War – that which consists of the rules of international law on the rights and obligations of states in time of war; and
Laws of Neutrality – that which consists of the rules of international law on the rights and obligations of states connected with neutrality.
International Law distinguished with Municipal Law
Monist: No distinction since there is oneness or unity of all law; that international law cannot be comprehended without the assumption of a superior legal order from which the various systems of municipal law are, in a sense, derived by way of delegation.
To the Dualist, who believes in the dichotomy of the law: Yes, there are distinctions, to wit: ML is issued by a political superior for observance by those under its authority, while IL is not imposed but adopted by states as a common rule of action;
ML consists of enactments of law-making authority, while IL is derived from such sources as international customs, conventions or general principles of law;
ML regulates the relations of individuals among themselves or with their own states, whereas IL applies to the relations inter se of states and other international persons;
Violations of ML are redressed through local administrative and judicial processes, whereas questions of IL are resolved through state-to-state transactions ranging from peaceful methods like negotiations and arbitration to the hostile arbitrament of force like reprisals and even war; and Breaches of ML entail individual responsibility, while responsibility for infractions of IL is usually collective in the sense that it attaches to the state and not to its nationals
Incorporation v. Transformation
Doctrine of Incorporation: It is a universally accepted postulate that, with or without an express declaration to this effect, states admitted to the family of nations are bound by the rules prescribed by it for the regulation of international intercourse. By this doctrine, international law is binding ex proprio vigore (by its own force).
Doctrine of Transformation: The generally-accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law.
In the Philippines, what doctrine is being followed?
The doctrine of incorporation as expressed in Sec. 2, Art. II, 1987 Constitution: “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations” [underscored is the so-called ‘incorporation clause]
Kuroda v. Jalandoni,
G.R. No. L-2662, March 28, 1949 Held:
Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947.
It cannot be denied that the rules and regulations of the Hague and Geneva conventions from part of and are wholly based on the generally 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.
Yamashita v. Gen. Styer,
G.R. No. L-129 Held:
War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. (Ex parte Quirin, 317 U.S. 1, 63 Sup. Ct. 2)
Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war.
And, in the language of a writer, a military commission has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty agreement. (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944)
Co Kim Chan v. Valdez Tan Keh, G.R. No. L-5, Sept. 17, 1945
On the contention that MacArthur’s Proclamation issued on October 23, 1944 invalidated all judicial proceedings during the Japanese occupation, it was
Held: Taking into consideration the fact that according to a well-known principle of international law, all judgments and judicial proceedings which are not of a political complexion of the de facto government during the Japanese military remained so after the
occupied territory had come again into the power of the titular sovereign, it should be presumed that it was not and could not have been the intention of General MacArthur, in using the phrase ‘processes of any other government’ in said proclamation, to refer to judicial processes, in violation of said principle in international law.
Treaty v. Constitution v. Statute
If the conflict is with the Constitution: uphold the Constitution (Sec. 5[2][a],Art. VIII, 1987 Constitution;
If conflict is with statute: The doctrine of incorporation applies. A treaty may repeal a statute, and a statute may repeal a treaty.
Doctrine of Lex posterior derogat priori – that which comes last in time, will usually be upheld by the municipal tribunal.
With international tribunal deciding: international law is superior to municipal law because international law provides the standard by which to determine the legality of a State’s conduct.
Ichong v. Hernandez, 101 Phil. 115 Held:
The Retail Trade Nationalization Law prevails over the Treaty of Amity with China and the Universal Declaration of Human Rights because the law was passed in the exercise of police power of the State, and police power cannot be bargained away through the medium of a treaty or a contract
Gonzales v. Hechanova,
G.R. L-21897, Oct. 22, 1963
On the validity of the executive agreement signed by the President for importation of rice from Burma and Vietnam without first securing from the National Economic Council the requisite certification, it was:
Held:
Although the President may, under the American constitutional system, enter into executive agreements without previous legislative authority, he may not, by executive agreements, enter into a transaction which is prohibited by statutes enacted prior thereto.
Tanada v. Angara,
G.R. 118295, May 2, 1997 Held:
By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws.
One of the oldest and most fundamental rules in international law is pacta sunt servanda — international agreements must be performed in good faith.
A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain and police power.
The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens.
The same reciprocity characterizes the Philippine commitments under WTO-GATT. Basis of International Law
Law of Nature School (Samuel Pufendorf): That there is a natural ad universal principle of right and wrong, independent of mutual intercourse or compact, which can be discovered and recognized by every individual through the use of his reason and conscience. Since individuals compose the State whose will is but the collective will of the inhabitants, the State also becomes bound by the law of nature.
The Positivist School (Richard Zouche): The binding force of international law is derived from the agreement of the States to be bound by it. In this context, international law is not a law of subordination but of coordination;
The Eclectic or Grotian School (Emerich de Vatel/Christian Wolff): Insofar as it conforms to the dictates of right reason, the voluntary law may be said to blend with the natural law and be, indeed, an expression of it. In case of conflict, the natural law prevails, being the more fundamental law.
Is International Law a true Law?
If by law we mean, following the definition of the English school of analytic and positive jurisprudence founded by Bentham and Austin, a rule of conduct laid down for the guidance of an intelligent being by another intelligent being having power over him, then international law is not true law.
But if by law we mean, following the definition of the school of historical jurisprudence founded by the German jurist Savigny and English jurist Sir Henry Maine, any rule recognized as a binding rule and observed as such, then international law is true law.
Public International Law v. Private International Law
Public International Law deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relation with persons, natural or juridical.
Private International Law (appropriately named Conflict of Laws) embraces those universal principles of right and justice which govern the courts of one state having before them cases involving the operation and effect of the laws of another state or country. (Minor, Conflict of Laws, p. 4)
As to persons on whom they operate:
Public International law deals for the most part with nations as such, while Private International Law deals with private individuals.
As to the transactions to which they relate:
The former recognizes in general only transactions in which sovereign states are interested, while latter assumes control over transactions strictly private in nature, in which the states as such has generally no interest.
In the contest between states arising under the law of nations, recourse is had first and generally to diplomatic channels and should such fail, to retorsion, reprisal, and other means short of war and in extreme cases to war.
Meanwhile, in cases to which private international law is applicable, recourse is had to judicial tribunals acting under the authority and in accordance with the rules of procedure of the country which they sit. (Minor, Ibid, p. 213)
Public International v. International Ethics
International ethics (or morality) deals with the principles which should govern international relations from the higher standpoint of conscience, justice, or humanity. (Hershey, Essential of International Law, p.2)
Public International Law v. International Comity
International comity, in connection with public international law, relates to those rules of courtesy, etiquette, or goodwill which are or should be observed by governments in their dealings with one another on grounds of convenience, honor, or reciprocity. (Hershey, Ibid,
p.3)
Examples:
Extradition of criminals in the absence of express agreement or treaty; Observance of certain diplomatic forms and ceremonies; and
Faith and credit given in each state to the public acts, records, and judicial proceedings of other states
Public International Law v. International Diplomacy
International diplomacy (policy) in the wider sense relates to objects of national or international policy and the conduct of foreign affairs or international relations. It is generally based upon considerations of expediency or national interest rather than upon those of courtesy, humanity, or justice. (Hershey, Ibid, p. 3-4)
Public International Law v. International Administrative Law
International administrative law is that body of laws and regulations created by the action of international conferences or commissions which regulate the relations and activities of national and international agencies with respect to those material and intellectual interest which have received an authoritative universal recognition.
It relates to such matters as international communication by means of postal correspondence and telegraphy, international transportation, copyright, crime, sanitation, etc.
It is created by international congresses or conferences and commission, and is administered by international commission and bureaus as well as by national agencies.
Aims of Public International Law
To eliminate absolutism and the preponderance of force;
To attempt to determine the rights of the people in relation to states and governments; and
To fix the rules governing them, as well as the measures of legal protection designed to guarantee and safeguard such rights [Fiori, Elements of Private International Law, p. 35]
Object of International Law
To investigate and determine the international rights and reciprocal duties which must belong to every member of such society, and to fix the legal rules governing such rights and duties and the legal measures designed to protect their fulfillment. [Fiore, Ibid, p.35]
Sanctions of International Law
Appeal to public opinion;
Publication of correspondence;
Censure by Parliamentary vote;
Demand for arbitration with the odium attendant on a refusal to arbitrate;
Rupture of relations;
Reprisals, etc. [North Atlantic Fisheries Arbitration, Scott, Hague Court Reports (196), p. 141]
Reasons Why States Obey the Precepts of International Law
Belief in the inherent reasonableness of international law and in their common conviction that its observance will redound to the welfare of the whole society of nations;
Because of normal habits of obedience ingrained in the nature of man as a social being;
Respect for world opinion or desire to project an agreeable public image in order to maintain goodwill and favorable regard of the rest of the family of nations;
Constant and reasonable fear that violations of international law might visit upon the culprit the retaliation of other states;
Moral influence of the UN and its power to employ physical force when warranted. Enforcement of International Law Upon States in Time of Peace
Channels of diplomacy between contending states or through international organizations or regional groups such as the UN, ASEAN, OAS, EU. If grievance is brought before the UN through the Security Council or the ICJ, these bodies may thereafter adopt such measures as may be necessary to compel compliance with international obligations or vindicate the wrong committed.
By recourse to measure like mediation, arbitration, commissions of inquiry, rupture of diplomatic relations, retorsion or retaliation, display of force, use of force, reprisal, pacific blockade, embargo, non-intercourse.
A State may treat the rules of international law as part of its municipal law. Its legislature may implement such rules by prescribing the norms for their observance and providing specific penalties for their violations. Examples: law on genocide and offense against diplomatic representatives.
Enforcement of International Law in Time of War
Through the war agencies of the belligerent states and by their prize courts; and By neutral states through their respective executive, legislative and judicial departments.
Chapter 2
SOURCES OF INTERNATIONAL LAW Sources of International Law
Primary:
International Treaties and Conventions International Customs
General Principles of Law Secondary:
Judicial decisions; and Writings of publicists
International Treaties and Conventions Treaties may be divided into 2 classes:
Legislative in character – Those that formulate openly and avowedly rules of conduct meant to be binding on the members of the family of nations as a body or at least on all of them which are directly concerned with the matter referred to in the treaty. Examples: (3) conventions of the Hague Conference of 1899, (13) conventions of the Hague Conference of 1907, Warsaw Convention, UN Charter.
Declaratory of international law - those that simply state rules previously recognized by the general body of nations. Examples: conventions in the Hague setting forth a code for the regulations of war on land; the rules of the Declaration of London of 1909 on blockade and contraband; and portions of the conventions of the Armed Neutrality of 1780 and 1800. International Customs
Must be evidenced of a general practice accepted as binding law through persistent usage over a long period of time. Examples: Right of Angary given to a belligerent state to destroy or use neutral property in cases of extreme necessity; the maritime rules first set forth in the Rhodian Law; exterritoriality; extra-territoriality; rules of blockade.
Requisites: a) must be the prevailing practice by a number of states; b) must be repeated over a considerable period of time; and must be attended by opinio juris (sense of legal obligation).
Custom v. Usage
While both connote those long established practices by states, they differ in that in usage, there is no attendance of a sense of legal obligation, i.e. the practice is not couples with the conviction that it is obligatory and right. Example of a usage is the old time ceremonial in the open sea which, although generally observed before, were generally not regarded as compulsory.
General Principles of Law
These are rules derived mainly from law of nature which are observed and recognized by civilized nations.
Examples: res judicata, prescription, pacta sunt servanta, estoppel, and ex aequo et bono (what is good and just).
Decision of Courts
Most authoritative are those rendered by ICJ of the Hague;
Decisions from other international tribunals or arbitration bodies and even national tribunals may be resorted to provided they show correct application and interpretation of the law of nations;
Stare Decisis inapplicable in international law.
Art. 59, ICJ Statute: “The decision of the Court has no binding force except between the parties and in respect to that particular case.”
Writings of Publicists
Must be fair and unbiased representation of international law ; and
Author must be an acknowledged authority in the field.
Mere credentials are insufficient as author may have been motivated by:
National pride or interest; or
Error in interpreting a rule in international law; or
In supposing the existence of a rule which does not in fact form part of the law of the nations.
Art. 38, Statute of the ICJ
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 particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidenced of a general practice accepted as law; c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This prohibition shall not prejudice the power of the Court to decide a case ex aequo et bono (what is good and just), if the parties agree thereto.
Interpretation of Art. 38, ICJ
Although the provision is silent on the question of whether the three primary sources have the same hierarchic value, by practice, treaties take precedence over customs, and customs over general principles of law.
Exception: Principle of Jus Cogens. Principle of Jus Cogens
Customary international law which has the status of a peremptory (i.e., absolute, uncompromising, certain) norm in international law cannot be permitted to be derogated. Peremptory norm – is a norm accepted and recognized by the international community of states as a rule, from which no derogation is permitted.
Examples: slave trade, piracy, terrorism, human rights Chapter 3, 4 & 5
INTERNATIONAL COMMUNITY, THE UN & CONCEPT OF STATE Subject v. Object
A Subject is an entity that has rights and responsibilities under international law. It has an international personality; it can be a proper party in transactions involving the application of the law of nations among members of the international community.
An Object is a person or thing in respect of which rights are held and obligations assumed by the subject. It is not directly governed by the rules of international law. Its rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency.
Subjects in International Law
States
Colonies and Dependencies
Mandates and Trust Territories
The Holy See
The UN
Belligerent communities
International administrative bodies
To certain extent: individuals State Defined
A State is a group of people, living together in a fixed territory, organized for political ends under an independent government, and capable of entering into international relations with other states.
State v. Nation
A state is a legal concept, a nation is a racial or ethnic concept.
The term nation as evidenced by its etymology (nasci, meaning to be born) indicates a relation of birth or origin and implies a common race, usually characterized a community of language and customs.
A nation may comprise several states. Example: Arab nation. Or a state of several nations, i.e. the United States, Russia
Elements of a State
People: They must be a group of individuals, of both sexes, living together as a community. They must be sufficient in number to maintain and perpetuate themselves. Casual gathering of people being stranded or a community of pirates cannot constitute a state.
Territory: That fixed portion on the earth’s surface occupied of the inhabitants. It may be as large as Russia or as small as Monaco with just 0.5 square mile in area or San Marino with just 38 square miles in area.
Government: is the agency through which the will of the state is formulated, expressed and realized. It must at least be organized and exercising control over and capable of maintaining law and order within the territory. The identity of the state is not affected by the changes in government.
Sovereignty: The supreme and uncontrollable power inherent in a state by which the state is governed. Meanwhile, independence, which is the power of the state to direct its own
external affairs without interference or dictation from other states, is the external manifestation of sovereignty.
Other Suggested Elements of A State Degree of Civilization
Recognition from family of nations such as admission to the UN. It may also mean an act by which a state acknowledges the existence of another state, of another government or of a belligerent community indicating willingness to deal with the entity as such under international law.
State Capacity
Entity possessed with the essential elements is imbued with capacity as state;
Entitles such entity to membership in the family of nations;
Not ipso facto since recognition is deemed a political act;
State capacity may not be total. It may be restricted due to treaty commitments or limited resources.
Examples: Switzerland as being ineligible for UN membership due to its permanent neutralization; Liechstentstein was barred from joining the League of Nations in 1920 owing to its limited size, small population, lack of an army, geographical position and deputation to other states of some of the attributes of sovereignty; also Andorra, Monaco and San Marino. Classification of States
Independent States
o Simple
o Composite: Real Union, Federal Union, Confederation, Personal Union and Incorporate Union. Neutralized States Dependent States o Protectorate o Suzerainty Simple State
o A single and centralized government is established exercising power over both internal and external affairs of the state.
o Examples: Philippines, Netherlands, Japan
Composite State: Real Union
o Two or more states are merged under a unified authority;
o A single international person is formed upon merger through which they act as one entity but retain their separate identities.
o Examples: Norway & Sweden [1815-1905], Austria & Hungary [1867-1918], and Egypt & Syria [1958-1961]
Composite States: Federal Union
o Two or more sovereign states are combined and ceased to be states upon merger.
o A new state is created with full international personality.
o Examples: USA, Russian Federation, German Empire of 1871
Composite States: Confederation
o Confederated states retain their internal sovereignty and to some degree, also their external sovereignty;
o A collective body is created to represent them as a whole for certain limited and specified purpose;
o Member states can still maintain international relations and retain their international personality although treated as imperfect states.
o Example: Confederation of German States in 1866
Composite States: Personal Union
o Two or more states are brought together under the rule of the same monarch but the merged states does not become one international person.
o Each state remains a state and an international person but their external policies are directed by the same ruler
o Examples: Belgium and the former Congo Free State [1885-1905]
Composite States: Incorporate Union
o Two or more states form a central authority to direct their external and internal affairs;
o It is distinguished from real union in that for the latter, only the external affairs of member-states are placed in a central authority.
o Example: United Kingdom of Great Britain and Ireland.
Neutralized States
o One which by international agreement is bound to abstain from offensive hostilities and from acts which would involve such hostilities, in consideration of guarantee of its independence and integrity.
o Accorded upon a state’s own request because it is weak and small; or granted due to its geographical situation such that its occupation may upset the balance of power in that region.
o Neutralization does not destroy the character of a state as such.
o Neutralized state can still enter into treaties involving peaceful relations.
o Generally, cannot resort to war except in self-defense.
o Examples: Switzerland [Congress of Vienna, 1815]; and Laos [1954 signed by 14 states]
Neutralized v. Neutral State
A neutralized state is one which by international agreement is bound to abstain from offensive hostilities and from acts which would involve such hostilities, in consideration of guarantee of its independence and integrity. Whereas, a neutral state is one which is not a party to the war.
A neutralized state exists in time of peace and in time of war. Whereas, a neutral state exists only in time of war.
In case of neutralized state, the status of neutrality is guaranteed by explicit agreement of a limited number of powers, accompanied by a definite sanction and a corresponding obligation on the part of the neutralized state to remain as such;
Meanwhile, in the case of neutral state, there are no specific guarantees, except the general rules of international law; there are no special sanctions but only the usual sanctions furnished thereby; and there is no obligation on the part of the neutral state to maintain its attitude of neutrality.
Dependent States
A legal oxymoron as statehood implies idea of independence.
Considering their number and for want for better term, they are called as such. They are states subject to control by other states in their external affairs. Two categories: Protectorate & Suzerainty
Protectorate
In the American sense: A state whose complete independence is limited by the control of another,
In its international sense: Originally means a state placed under the protection of another state by virtue of a treaty arrangement. Lately, refers to the territory of a country which although not a state in the strict international sense, remains nonetheless independent. Examples: In the American sense: Cuba and Panama; In its international sense: Republic of San Marino under Italy, Korea and Manchuoko under Japan before WW 2
Suzerainty
While a protectorate is established at the request of the weaker state for the protection of a strong power,
In Suzerainty, it is the result of a CONCESSION from a state to a former colony which is allowed to become independent subject to the retention by the former sovereign of certain powers over the external affairs of the latter.
Vatican City Area: 108.7 acres; Population: 900
Sovereignty exercised by the Holy See or the Supreme Pontiff [Pope]; Became state by virtue of the Lateran Treaty in 1929;
Treated as such since it exercises certain prerogatives of states, e.g. treaty-making and diplomatic intercourse.
Other International Persons
The UN
The Holy See [See Holy See v. Del Rosario, 238 SCRA 524]
Colonies and Dependencies
Mandates and Trust Territories
Belligerent Communities
International Administrative Bodies
To some extent: Individuals
The United Nations: Historical Development
The League of Nations organized after WW 1 and dissolved in 1946;
The London Declaration, June 12, 1941;
The Atlantic Charter, Aug. 14, 1941; Declaration by United Nations, Jan. 1, 1942;
Moscow Declaration, Oct. 30, 1943;
Dumbarton Oaks Proposal, Washington, Aug. – Oct. 1944;
San Francisco Conference, Apr. 25 – June 28, 1945 [delegates from 50 nations unanimously approved the UN Charter]
Oct. 24, 1945: UN Charter came into force. League of Nations
Founded as a result of the Treaty of Versailles in 1919–1920, a peace treaty that officially ended World War I between the Allied and Associated Powers and Germany ;
League lacked armed force and so dependent on the so-called Great Powers The London Declaration
June 12, 1941: several members of the British Commonwealth and a number of government-in-exile met.
Declared to work together, and with other peoples, in war and in peace, toward economic and social development.
Atlantic Charter & Declaration By United Nations
Aug. 14, 1941 – US Pres. Franklin Delano Roosevelt and UK Prime Minister Winston Churchill signed the Atlantic Charter.
It expressed their hope for ‘a peace which will afford to all nations the means of dwelling in safety within their own boundaries and which will afford assurance that all men in all lands may lead out their live in freedom from fear and want.’
The foregoing principle was later embodied in the Declaration by United Nations signed on Jan. 1, 1942 by 26 countries and later adhered to by 21 other countries.
Moscow Declaration
First step toward creating the UN; Signatories: China, USSR, UK & US; Date: Oct. 30, 1943
Recognized ‘ the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of international peace and security.’
Dumbarton Oaks Proposals
Initial blueprint of the UN prepared during the conference at Washington DC between Aug. – Oct. of 1944.
Participated in by the UK, USSR, US and later joined by China.
Conceived the idea of forming the Security Council composed of the (5) conferees plus France as its permanent members.
Yalta Conference in the Crimea
February 11, 1945: Voting rules in the Security Council known as the Yalta Formula were agreed upon.
The conferees also called a general conference to be held at San Francisco on April 25, 1945 for the preparation of the UN Charter ‘along the lines proposed in the informal conversations at Dumbarton Oaks.’
San Francisco Conference
Attended by (50) nations between Apr. 25 to June 26, 1945.
Prepared and unanimously approved the charter of the UN.
Charter came into force on Oct. 24, 1945 after the members of the Big Five and majority of the other signatories filed their instruments of ratification.
The UN Charter
Composed of the Preamble, (111) Articles and Concluding provisions. Annexed in the charter is the Statute of the ICJ.
Dual character of the charter:
As a treaty – because it derives its binding force from the agreement or the parties to it.
As a constitution – because it provides for the organization and operations of the different organs of the UN and the adoption of any change in its provisions through a formal process of amendment.
Applicable to the members as well as non-member states, insofar as ‘necessary for the maintenance of international peace and security.’
Charter superior than other treaties.
Art. 103: ‘In the event of a conflict between the obligations of the members of the UN under the present charter and their obligations under any other international agreement, their obligation under the present charter shall prevail.’
Procedure in Amending UN Charter
Amendment resolution shall be adopted by a vote of 2/3 of the members of the General Assembly; and
Ratified in accordance with their respective constitutional processes by 2/3 of the members of the UN, INCLUDING ALL THE PERMANENT MEMBERS OF THE SECURITY COUNCIL.
Preamble DETERMINED:
To save succeeding generations from the scourge of war;
To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained; and
To promote social progress and better standards of life in larger freedom, AND FOR THESE ENDS:
To practice tolerance and live together in peace with one another as good neighbors, and
To ensure, by the acceptance of principles and the institution of methods that armed force shall not be used, save in the common interest, and
To employ international machinery for the promotion of the economic and social advancement of all peoples,
HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS:
Accordingly, our respective Governments, through representatives assembled in the City of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization known as the United Nations. Purposes of the UN
To maintain international peace and security; To develop friendly relations among nations; To achieve international cooperation;
To be a center for harmonizing the actions of nations in the attainment of these common ends.
Principles of the UN
Sovereign Equality
Pacta Sunt Servanta
Amicable Settlement of Disputes
Outlawry of War
Requiring members’ assistance to UN and refrain assisting states against the UN Ensuring non-members to act in accordance with the UN principles
Domestic jurisdiction clause Membership to the UN
ORIGINAL – Those states who participated in the UN Conference on International Organization at San Francisco or have previously signed the Declaration by the United Nations of January 1, 1942. Although not yet states at the time of the signing, the Philippines, India, Lebanon and Syria were included as original members.
ELECTIVE – Those states admitted to the UN by decision of the General Assembly after favorable recommendation of the Security Council.
Eligibility for admission:
Must be a state;
Must be peace-loving;
Must accept the obligations of the charter; Must be able to carry out these obligations; and Must be willing to carry out these obligations. Suspension of UN Members
2/3 vote of those present and voting in the General Assembly;
Favorable recommendation by at least 9 members of the Security Council, including the 5 permanent members; and
May be lifted only by the Security Council by a qualified majority. Expulsion of UN Members
Must have persistently violated the principles in the Charter; By 2/3 vote of those present and voting in the General Assembly; Upon recommendation by the Security Council by qualified majority; Withdrawal of Members
No express provision;
But according to authorities in IL, a member may withdraw if:
a. The UN was revealed to be unable to maintain peace or could do so only at the expense of law and justice;
b. The member’s rights and obligations as such were changed by a Charter amendment in which it had not concurred or which it finds itself unable to accept; or
c. An amendment duly accepted by the necessary majority either in the General Assembly or in a general conference is not ratified.
d. Only one instance of withdrawal: Indonesia in 1965 but resumed its seat after the overthrow of Sukarno.
Six (6) Principal Organs of the UN
1. General Assembly
2. The Security Council
3. The Economic and Social Council
4. The Trusteeship Council
5. The International Court of Justice
6. The Secretariat The General Assembly Consists of all members;
Each member entitled to not more than five (5) representatives with five (5) alternates; Regularly meets annually beginning on the 3
rd
Tuesday of September each year or by special session called by majority of its members or at the request of the Security Council;
Each member entitled to one (1) vote;
Important questions are decided by 2/3 of those present and voting;
All other matters, including determining whether the question is important, by majority of those present and voting.
Functions of the General Assembly
Deliberative – making studies and recommendations on the development of IL and its codification; recommending measures for peaceful adjustment of any situation likely to impair the general welfare or friendly relations among nations.
Supervisory –Treating reports submitted by other organs; approving trusteeship agreements in non-strategic areas.
Financial – Approval of budget; apportionment of expenses among its members; and approval of financial arrangements with specialized agencies.
Elective – Election of non-permanent members of the Security Council; of all members of the ECOSOC.
The Security Council
Key organ in the maintenance of inter-national peace and security;
Composed of five (5) permanent members: China, France, UK, Russia and US and ten (10) non-permanent members: five (5) from African and Asian states, two (2) from Latin American states, two (2) from Western European and other states, and one (1) from Eastern European states.
Non-permanent members elected for 2-year term by the GA; not eligible for immediate re-election.
Voting in The Security Council The Yalta Formula:
Each member entitled to one (1) vote;
On substantial questions (non-procedural): Affirmative vote of nine (9) members required, including all the five (5) permanent members;
A permanent member may veto on any non-procedural matter to prevent its passage;
On procedural questions: Affirmative vote of nine members or more;
But determining whether a question is procedural or not is a non-procedural matter;
Hence, any permanent member may veto on such determination or on the substantial question when raised.
So-called as the ‘double veto’ rule. The Economic and Social Council
Composed of fifty four (54) members with one vote each;
All elected by the GA;
Term of three (3) years with immediate re-election;
Staggered terms so as to provide for replacement or re-elections of 1/3 of the body every year.
Mandates of The ECOSOC Exert efforts toward:
Higher standards of living, full employment and conditions of economic and social progress and development;
Solutions of international economic, social, health and related problems, and international, cultural and educational cooperation; and
Universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
Subsidiary Organs of The ECOSOC Subsidiary:
Commission on the Status of Women
The different Regional Economic Commissions for Europe, Asia and the Far East, and Latin America
Collaborative with:
International Monetary Fund; and
International Trade Commission
The Trusteeship Council
Administration of the International trusteeship system;
Composed of: a) the members of the UN administering trust territories, b) the permanent members of the SC not administering trust territories; and c) other members as necessary and elected by the GA for a 3-year term .
The International Court of Justice Judicial organ of the UN;
All members of the UN ipso fact parties to the Statute. A non-member can become party upon approval by the GA after favorable recommendation of the SC;
Court composed of fifteen (15) members [judges]. Qualifications/Restrictions in the Election of ICJ Judges
Must be of high moral character;
Possesses the qualifications required in their respective countries for appointment to their highest judicial offices; or
Jurisconsult of recognized competence in international law; Not two judges may be nationals of the same state;
In such event the more than one national of the same state obtain the required majorities, only the eldest shall be considered as elected.
Term: nine (9) years subject for re-election.
Staggered terms so that 1/3 of the membership at 3-yr interval.
The Court to elect President and Vice-President to serve for 3 years with re-election.
To remain in session at the Hague or elsewhere, except during judicial vacations; May either meet en banc or in chambers composed of 3 or more judges when
dealing with cases on labor, transit and communications. Decision is by majority of the judges present;
Quorum is 9 when full court is sitting. President of ICJ: Peter Tomka of Slovakia ICJ to decide contentious cases
Render advisory opinions;
Jurisdiction is based on the consent of the parties under the optional jurisdiction clause of the Statute (Art. 360) and comprises all cases that parties have referred to it and all matters especially provided for in the Charter or in treaties and conventions in force;
Advisory opinions on legal question arising within the scope of their activities are given upon request of the GA or the Security Council and other organs of the UN when authorized by the GA.
The Secretariat
Chief administrative organ of the UN;
Headed by the Secretary-General who is chosen by the GA upon recommendation
Term of the SG: five (5) year subject to re-election;
SG is the highest representative of the UN, authorized to act in its behalf and entitled to full diplomatic immunity. He may waive the immunities and privileges of other key-officials of the UN
Colonies & Dependencies
Under IL, a colony or dependency is part and parcel of the parent state, hence no legal standing ;
However, there were such entities given recognition to participate in international affairs and granted de facto status as sovereign state. Hence, when acting in such manner, colonies and dependencies are treated as international persons.
Example: India when still colony of Great Britain was allowed membership in the League of Nations and signed as charter member of the UN. The Philippines also while still colony of the US.
Colony – a dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit another country.
Dependency – a territory distinct from the country in which the supreme sovereign power resides, but belongs rightfully to it, and subject to the laws and regulations which the sovereign may prescribe.
Mandates and Trust Territories
Mandates – are former territorial possession of states defeated in World War I and placed under the control of the League of Nations. Many of the mandates became Trust Territories placed under the Trusteeship Council of the UN.
Trust Territories – those territories placed under the Trusteeship Council.
Three Types of Trust Territories: a) Those held under mandate under the League of Nations, b) Those territories detached from the defeated states after World War II; and c) Those voluntarily placed under the system by the states responsible for their administration. Condominium – a term used in describing a territory jointly administered by two states. Belligerent Communities
That portion of the population which rises up in arms against the legitimate government of the state when such upheaval or conflict widens and aggravates.
While not being conferred with all the rights of an independent state, the recognizing state concedes to the belligerent government recognized rights and imposes upon the obligations of an independent state in matters relating to the war being waged.
Conditions for Recognition of Status of Belligerency
Must have an organized civil government with control and supervision over the armed struggle;
The conflict must be serious and widespread with the outcome uncertain; It must have occupied a substantial portion of the national territory; and It must be willing to observe the rule and customs of war.
Note: Any lacking requisite will make the struggle merely an insurgency without any legal personality in international law.
Effects of Recognition of Belligerency
Responsibility for acts of rebels resulting in injury to nationals of the recognizing state shifted to the rebel government;
The legitimate government recognizing the rebels must observe the laws of war in conducting the hostilities;
Third states recognizing the belligerency shall maintain neutrality; and
Recognition is only provisional, e.g. for the duration of the armed struggle, and only for the purpose of the hostilities.
International Administrative Bodies
Certain administrative bodies, created by agreement among states, may be vested with international personality, provided that they are: a) non-political, b) autonomous, and c) not subject to control by any state.
Examples: ILO, FAO, WHO, IMF, European Commission of the Danube, Central Commission for the Navigation of the Rhine.
Individuals
Traditionally, only considered as objects. But presently, a number of international agreements grant a certain degree of international personality to individuals. Examples:
UN Charter provision on ‘faith in fundamental human rights, dignity and worth of the human person, and in the equal rights of men and women’;
Universal Declaration of Human Rights provision on ‘the inherent dignity and the equal and inalienable rights of all members of the human family;
Some treaties, e.g. Treaty of Versailles, which confer on individuals the right to bring suit against States before national or international tribunals;
The need for States to maintain an International Standard of Justice in the treatment of aliens;
The Genocide Convention which condemns the mass extermination of national, ethnic, racial or religious groups;
The 1930 Hague Convention with its rules to prevent the anomalous condition of statelessness;
The 1954 Covenant Relating to the Status of Stateless Persons which grants stateless individuals certain basic rights; and
The 1950 European Convention on Human Rights and Fundamental Freedoms, which grants private associations and individuals the right to file complaints before the European Court on Human Rights.
Modes in Creating a State Revolution (e.g. U.S.)
Unification (e.g., Unification of City States of Sardinia, Florence, Naples, Rome, etc. in 1870 to become the state of Italy)
Secession (e.g.,Bangladesh which seceded from Pakistan in 1971) Assertion of Independence (e.g., The Philippines)
Agreement (e.g., Netherlands created by Congress of Vienna of 1815 & Poland, which was revived as a separate state by agreement of the Allied Powers after World War II)
Attainment of Civilization (e.g., Japan) Principle of State Continuity
Once its identity as an international person has been fixed and its position in the international community established, the state continues to be the same corporate person whatever changes may take place in its international operation and government.
Otherwise put: The change in the government of the state, the number of its people or its area does not affect the international personality of the state unless such change in the number of people or area thereof is such as to make it impossible to maintain the staate. The Sapphire Case
Facts:
Louis Napoleon, as Emperor of France, filed in a California Court a civil claim for damages in connection with a collision between the French vessel Eurayale and the Sapphire. He was subsequently deposed while the case was pending.
Held:
The reigning sovereign represents the national sovereignty, and that sovereignty is continuous and perpetual residing in the proper successors of the sovereign for the time being. Napoleon was the owner of the Euralyle, not as individual, but as sovereign of France. On his deposition the sovereignty does not change, but merely the person in whom it resides. Extinguishment of a State
Merger
Dissolution
Deprivation of freedom to direct its external affairs leading to partial loss of international personality;
Radical impairment or actual loss in one or more of its essential elements (ex. Extermination or En masse emigration of the populace)
Succession of States
Rule: The change in the government of a state, the number of its people or its area does not affect its international personality, unless such change in the number of people or area is such as to make it impossible to maintain the state.
The state remains as a person in international law, with all its rights and obligations. Extinguishment of a State
Disappearance of one or more of the essential elements; Annexation, whether voluntary or forcible, into another state; Division into two or more states; and
Incorporation into a federal union. State Succession Defined
Means the substitution of one state for another, the former assuming the rights and obligation of the latter. It may be universal or partial succession.
It arises in the event a state is extinguished or created under the modes already discussed. Classification of State Succession
Universal Succession– When the international personality of the state succeeded to is completely absorbed by the successor.
Examples:
Forcible or voluntary annexation of a state to another, Division of a state into two or more states
Entrance of a state into a federal union.
Partial Succession– When the succeeding state acquires only a portion of the territory of another state.
Examples:
In the case of conquest followed by cession;
In the emergence of a new state on the foundation of a revolting territory. Effects of State Succession
When Entire State is Annexed
When only a portion of Territory is separated from another and a new state is erected Transfer of Sovereignty.
Effects When Entire State Is Annexed Upon treaties:
Political treaties abrogated while treaties of territorial or transitory nature remain and binding on absorbing state;
Executory Treaties like that of extradition and of amity, etc. are wiped out and third states lose whatever benefits they have under such.
Upon Public Debts:
General Rule: Public debts are assumed by the absorbing state.
Exception: Annexation by conquest and public debts were incurred for the prosecution of the war; and
War arose because of the transactions resulting in the incurring of the public debts. Upon public property:
Absorbing state succeeds into all public property and acquiring all rights therein.
But subject to charges or burdens resting upon the property under the doctrine of Res transit cum suo onere.
Upon obligations with private persons:
General Rule: Obligations of the annexed state towards private person should be respected. Exceptions:
Worthless obligations of an insolvent state annexed without recourse by a solvent state which cannot be converted into valuable ones by the latter;
Justifiable refusal by the annexing state to obligations incurred by the annexed state for the purposes of war against it;
Upon Private Rights:
Protection of private rights is obligatory upon the new sovereign.
Transfer of allegiance of subjects operate ipso facto unless otherwise provided in a treaty or the people withdraw from the territory and resettle elsewhere.
Effects When Only Portion Of Territory Is Separated and New State Established Upon Treaties:
Treaties of the mother state continue to be binding upon itself, unless by their nature and connection with the separated territory they must naturally fall.
Upon Public Debts:
Mother state continues to be bound even if they were incurred on account of the separate state.
Exception: Agreement between the mother state and the separate state relieving the former. Upon Public Property:
The new state succeeds to all the public property found in the territory. Upon obligations with Private Persons:
The obligations of the territory with private persons are in general respected. Exception: Those that are personal to the displaced sovereign.
EFFECTS IN THE CESSION OF A TERRITORY Upon Private Property:
No effect on private property rights.
The cession is necessarily understood to pass the sovereignty only, and not to interfere with private property.
Upon Treaties of the Ceding State:
General Rule: The obligations of the ceding state in the treaty continue. Exception:
Treaties in respect to the territory annexed abrogated if political in character. Exception to exception:
Treaties which are transitory or territorial in character continue. Upon Public Debts of Ceding State Incurred Over Such Territory:
Unless assumed by the annexing state in the annexing treaty, the public debts of the ceding state incurred over such territory remain with the ceding state.
Upon Public Obligations of the Ceding State:
Public obligations of the ceding state over such territory, if territorial, are assumed by the acquiring state.
Contracts relating to the public property within the acquired territory, entered into by the former sovereign, are usually acknowledged by the new sovereign upon proof that the claims are just and equitable, although no mention is made in a treaty of cession confirming the transfer.
Upon Allegiance Of The People In the Ceded Territory:
Allegiance to former sovereign is dissolved and the inhabitants will now owe allegiance to the new sovereign, unless they withdraw from the state.
Their relations with each other remain unchanged.
Upon Property Rights and Other Private Rights of the People In the Ceded Territory: Property rights and other private rights of the people therein remain unaffected. Effects In The Transfer of Sovereignty
The allegiance to the old sovereign is dissolved.
Inhabitants will now owe allegiance to the new sovereign, unless they withdraw from the state.
Their relations with each other remain unchanged. People v. Perfecto, 43 Phil. 887
Held:
The political laws of the former sovereign are automatically abrogated and may be restored only by a positive act on the part of the new sovereign.
However, non-political laws, such as those dealing with familial relations, are deemed continued unless they are changed by the new sovereign or are contrary to the institutions of the successor state.
SUCCESSION OF GOVERNMENTS
Integrity of the state is not affected.
It continues as the same international person, except only that its lawful representative is changed.
Rights of the predecessor government are inherited in toto by the successor government.
Obligations are assumed, if the new government was organized constitutionally. Otherwise, purely personal or political obligations of the predecessor government may be rejected.
U.S. (For GeorgeW. Hopkins) v. Mexico [1927] Held:
Debts incurred by the old government for the purchase of military equipment used against the new government may be disowned.
On the other hand, postal money orders purchased from the old government in the ordinary course of business must be honored by the new government.
Chapter 6 RECOGNITION Recognition Defined
It is an act by which a state acknowledges the existence of: Another state;
A government; or A belligerent community
Indicating its willingness to deal with the entity as such under the rules of international law.
Declaratory – That recognition merely affirms an existing fact such as the possession by the state of all its essential elements, and that it may be granted or withheld at pleasure. Constitutive –That recognition is compulsory or legal and that it is the very act of recognition that constitutes the recognized entity into an international person and that such act may be compelled once the elements of international personality are established.
Power to Recognize
Under Art. VII of the 1987 Constitution, it is the President who is given the authority to send and receive diplomatic representatives, to enter into treaties, to establish blockades, and in general to act as the foreign policy spokesman of the nation.
Forms of Recognition
Express: By way of formal proclamation or announcement, whether verbal or in writing, and through a stipulation in a treaty, a letter or on the occasion of an official call or conference. Implied: When recognizing state and recognized state enter into a treaty regulating their relationship in general or when they exchange diplomatic representatives. In case of a belligerent community: when it blockades a port held by the recognized belligerent or by observing neutrality in the conflict.
Recognition of States
A free act of a state by which it acknowledges the existence on a definite territory of a human society politically organized, independent of any existing state, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.
Recognition of Governments
A manifestation of the recognizing state that it is ready and willing to deal with the recognized government as the highest organ acting for and in behalf of a particular state. It is important since, as a rule, a state cannot have any official intercourse with another where its government is not recognized.
Unless recognized, such government is without standing in the courts of another state. There is no legal right of a new government to be recognized or a legal duty of one state. Recognition of State v. of Gov’t
Recognition of state includes the recognition of government since the latter is an essential element of the former. Recognition of a government does not necessarily signify the existence and recognition of a state as such government may not be independent.
Recognition of state is generally irrevocable. Recognition of a government may be withdrawn. Kinds of De Facto Governments
Those established by the inhabitants who rise in revolt against and depose the legitimate regime. Example: Commonwealth of Cromwell which supplanted the monarch under Charles I of England;
Those established in the course of war by the invading forces of one belligerent in the territory of the other belligerent. Example: Japanese occupation government; and
Those established by the inhabitants of state who secede therefrom without overthrowing its government. Example: Confederate government of America.
Doctrines on Recognition of Governments
Tobar-Wilson
Estrada
Stimson Tobar-Wilson Doctrine
A doctrine that precludes recognition of any government established by revolution, civil war, coup d’ etat or other forms of internal violence until the freely elected representatives of the people have organized a constitutional government.
First expressed in the 1907 Central American Republics at the suggestion of Foreign Minister Tobar of Ecuador and reiterated by President Woodrow Wilson of the US in a public statement made in 1913.
Stimson Doctrine
Precludes the recognition of any government established as a result of external aggression. Formulated by US Secretary of State Stimson in 1932.
Adopted by the League of Nations through a resolution stating that: “It is incumbent upon the members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris”
Estrada Doctrine
The diplomatic representatives in a country where a political upheaval has taken place will deal or will not deal with whatever government is in control at the time and either action shall not be taken as a judgment on the legitimacy of the said government.
Attributed to Foreign Minister Genaro Estrada of Mexico. Example: Recognition of PROC based on the ‘one china policy’ Recognition of De Facto Gov’t v. De Jure Gov’t
Recognition de jure is relatively permanent; de facto provisional.
Recognition de jure vests title to the properties of the government abroad; recognition de facto does not.
Recognition de jure results to full diplomatic relations; recognition de facto is limited to certain juridical relations.
Effects of Recognition of States and Government
Full diplomatic relations are established except where the government recognized is de facto. The recognized state or government acquires the right to sue in the courts of the recognizing state.
The recognized state or government is entitled to the possession of the properties of its predecessor in the territory of the recognizing state.
All acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own courts
Note: Non-suability of a state connotes recognition. Reason: Whether a government is recognized or not, it still enjoys immunity from suit in a foreign jurisdiction.
Oetjen v. Central Leather Co., 246 U.S. 297
Facts
In the course of the revolution in Mexico in 1913, General Pancho Villa as commander of the North under General Carranza – against General Juerta who had declared himself provisional president after the assassination of Madero, President of Mexico – seized certain hides belonging to Martinez for the latter’s failure to pay his share of the contributions levied in the area. At the time of the seizure, the Carranza Government controlled about 2/3 of Mexico but the U.S. did not recognize any government at the time.
Gen. Carranza sold the hides to Finnegan Brown Co., a Texas corporation, which in turn sold it to Central Leather Co. The hide were later shipped to New Jersey where they were subject to replevin in favor of Oetjen, the assignee of Martinez & Co.
During the course of the trial, the U.S. Government recognized the Carranza Government as a de facto government on October 19, 1915 and later on August 31, 1917 as the de jure government of Mexico.
Held:
When a government which originates in revolution or revolt is recognized by the political department of the government as the de jure government of the country in which it is established, such recognition is RETROACTIVE in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence. That the conduct of one independent government cannot be successfully questioned in the courts of another for to permit the validity of the acts of one sovereign state to be re-examined and perhaps condemned by the courts of another would very certainly imperil the amicable relations between the governments and the peace of nations.
The seizing and selling of the hides in question was an action of the legitimate Mexican government when dealing with a Mexican citizen, and upon soundest reasons, was not subject to re-examination and modification by the courts.
Underhill v. Hernandez,168 U.S. 250 Facts:
In the course of a revolution in 1892 against the administration in Venezuela, General Hernandez, supporting the anti administration forces under the leadership of Crespo, entered Bolivar and assumed control over the city as its civil and military chief.
Underhill was US citizen who constructed a waterworks system for the city of Bolivar under a contract with the government and was engaged in supplying the city with water.
He applied to General Hernandez, as the officer in command, for a passport to leave the city. General Hernandez refused at first. But after requests made by others in Underhill’s behalf, he issued a passport on October 18, 1892.
An action was filed in the US to recover damages for the detention of Underhill.
On October 23, 1892, the Crespo government was formally recognized by the U.S. as the legitimate government of Venezuela.
Held:
The acts complained of were the acts of a military government representing the authority of the revolutionary party as a government, which afterwards succeeded, and was recognized by the US.
In the case of a civil war, it the party seeking to dislodge the existing government succeeds, and the independence of the government it has set up is recognized, the acts of such government, from the commencement of its existence, are regarded as those of an independent nation.
Every sovereign state is bound to respect the independence of every other sovereign state. The court of one country will not sit in judgment on the acts of another, done within its territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.
Republic of Peru v. Dreyfus Brothers, 1888 Held:
If a de facto government set up by overthrowing the existing government becomes a de jure government through recognition, and later on it is in turn overthrown by a succeeding revolution which returns the old government, the obligations incurred by it remain binding upon the state.
Russian Socialist Federated Soviet Republics v. Jacques R. Cibrario, 235 N.Y. 255 Held:
An unrecognized government could not and should not be permitted to sue in the US. Permission to a foreign government to sue in the courts of another is based upon comity, in the absence of a treaty. But until said government has been recognized, no such comity exists.
The Plaintiff concededly has not been so recognized. There is, therefore, no proper party before us.
Recognition, and consequently, the existence of comity, is purely for the determination of the legislative or executive department of the government. Who is the sovereign of a territory is a POLITICAL QUESTION.
Max Wulfsohn, et al. v. Russian Socialist Federated Soviet Republics, US CA of New York, 1923
Held:
To cite a foreign potentate into a municipal court for any complaint against him in his public capacity is contrary to the law of nations and an insult which he is entitled to resent. This applies whether recognized or not.
