Public International Law

Public International Law: Objects and Subjects Written in 1998 during my Ll.M. studies at UST, Manila. I taught PIL for some years at FEU, Manila.

Suggested Readings The Reporter suggests to the class the following latest references, for further reading, on the subject matter of this Report: 1. MAGALLONA, Merlin M. A Primer in International Law in Relation to Philippine Law. Quezon City: Central Professional Books, Inc., 1997. 2. COQUIA, Jorge and DEFENSOR-SANTIAGO, Miriam. Public International Law. Quezon City: UP Law Center, 1994. 3. PARAS, Edgardo. International Law and World Organizations.Manila: Rex Book Store, 1997. 4. International Law Documents, 1995, compiled and edited by The Lawyers Review Editors and Staff. Makati City: The Lawyers Review, 1995. 5. CRUZ, Isagani. International Law. Quezon City: Central Law Books Publishing Co., Inc., 1998. 6. CRUZ, Isagani. Political Law. Quezon City: Central Law Books Publishing Co., Inc., 1998.

The Seven (7) Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations

The United Nation's "Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations", adopted by the UN General Assembly, thru Resolution No. 2625 (XXV) on October 24, 1970, after ten (10) years of work and study, contain the following seven (7) basic principles of international law:

"1. The principle that states 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 purposes of the United Nations; "2. The principle that states shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered; "3. The duty not to intervene in matters within the domestic jurisdiction of any state, in accordance with the Charter; "4. The duty of states to cooperate with one another in accordance with the Charter;

"5. The principle of equal rights and self-determination of peoples; "6. The principle of sovereign equality of states; and "7. The principle that states shall fulfill in good faith the obligation assumed by them in accordance with the Charter."(cf. fifth (5th) Introductory Clauses of the "Declaration" in Merlin M. Magallona, 96).

The Declaration enumerated the elements of "sovereign equality" of a state, thus:

"The principle of sovereign equality of states. "All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature. "In particular, sovereign equality includes the following elements: "(a) States are juridically equal; "(b) Each state enjoys the rights inherent in full sovereignty; "(c) Each state has the duty to respect the personality of other states; "(d) The territorial integrity and political independence of the state are inviolable; "(e) Each state has the right freely to choose and develop its political, social, economic and cultural systems; "(f) Each state has the duty to comply fully and in good faith with its international obligations and to live in peace with other states." (cf. Principle No. 6 of the main body of the "Declaration" in Magallona, 104).

The Subjects and Objects of International Law

A subject of international law is an entity with capacity of possessing international rights and duties and of bringing international claims. This entity is said to be an international person or one having an international personality, on the basis of customary or general international law.(Magallona, 18-19). A subject of Public International Law is an entity directly possessed of rights and obligations in the international legal order, e.g. a sovereign state, such as the Philippines. (Paras, 43).

An object of Public International Law, on the other hand, is merelyindirectly vested with rights and obligations in the international sphere, e.g. a Filipino private citizen is generally regarded not as a subject but an object of Public International Law because, while he is entitled to certain rights which other states ought to respect, he usually has no recourse except to course his grievances through the Republic of the Philippines and its diplomatic officers. (id.).

Kinds of Subjects in International Law

A. The STATE

Magallona distinguishes between (a) general or objective international personality and (b) particular or special international personality, as follows:

"x x x As to the first (general or objective international personality), rights and obligations are conferred by general international law and such personality is binding erga omnes; and as to the second (particular or special international personality), personality binds only those which give consent (express or tacit). "The distinction is implied in the Reparation for Injuries Case, in which on the question as to the legal personality of the United Nations to claim reparation for injury to its agents committed by nationals of a non-Member State, the (International Court of Justice or ICJ) states: "xxx fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality and not merely personality recognized by them alone, together with capacity to bring international claims xxx [ICJ Reports, 1949, p. 185]."(Magallona, 19).

B. STATES: Single/Simple and Composite

Paras categorizes "subjects in international law" into two (2) categories: (a) the complete or perfect international personality, and (b) the incomplete or imperfect, or qualified or quasi-international personality. (Paras, 47). He classifies states into the following species: (a) single or simple state (e.g., Philippines), and (b) composite state. The 1933 Monteviedo Convention on the Rights and Duties of States provides for the legal characteristics of a State, thus:

"The State as a person of international law should possess the following qualifications: (a)a permanent population; (b) a defined territory; (c) government; (d) and capacity to enter into relations with other States." (cf. Magallona, 20).

The "capacity to enter into relations with other States" refers to independence, which many highly qualified publicists consider as the decisive criterion of statehood. (Magallona, 20-21).

RECOGNITION is considered as "the act by which another State acknowledges that the political entity recognized possesses the attributes of statehood." (Magallona, 21, citing Jessup, Modern Law of Nations: An Introduction, 1949, p. 4). There are two theories on the nature and effect of recognition, as discussed by Magallona (at pp. 22-22):

xxx The constitutive school maintains that it is the act of recognition which constitutes or creates the status of a State as a subject of law and thus gives it a legal personality. The international status of any entity as a State is to be determined by the will and consent of already existing States. xxx The declaratory theory asserts that recognition merely confirms the acceptance by States of the status of an entity as a State. A new State acquires legal personality by its own creative act in bringing about the objective criteria of statehood, rather than by the subjective act of other States. xxx The declaratory school is the preferred approach, the prevailing view being that recognition is not an element of statehood.

Paras, Coquia and Defensor-Santiago classify the different kinds of composite states as follows:

"(1) The Federation or Federal State (such as the United States and the United States of Switzerland); "(2) The Confederation (such as the original Confederation of the American States, which eventually became the nucleus of the present United States). "(NOTE: The principal difference between a federal union and a confederation is that a federal union of states exists when the central or federal government exercises authority overboth the various states in the union and the citizens thereof; while the confederation has some sort of power over its individual states, but not over the individual citizens of the member states. The federal union, as such, is an International Person, thus the United States is represented in the United Nations as one juridical or international entity; ont he other hand, the confederation as

such is not an International Person, each of the member-states being represented by its own delegate. However, there is at present no confederation of confederated states). "(3) The Real Union (such as the former United Arab Republic which was formed by two sovereign states [Egypt and Syria] linked 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]. xxx. "(4) The Personal Union (this is the merger of two separate sovereign states in the sense that both have the sameindividual 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. xxx. "(5) The Incorporate Union (one where the internal andexternal 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 Ireland xxx. 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). "NOTE: The British Commonwealth of Nations xxx apparently does not fall under any of the preceding classifications xxx." (Paras, 49-50; Coquia & Defensor-Santiago, 64-100).

c. The INCOMPLETE, IMPERFECT, QUALIFIED OR QUASI-INTERNATIONAL PERSONALITIES

Paras lists the incomplete, imperfect, qualified or quasi-international personalities as follows:

"xxx among them are the dependent states (protectorate and suzerainties); belligerent communities (and in a very, very modified way, insurgent communities, subject to certain conditions); colonies; dependencies and possessions;mandates and trust territories; certain public and political corporations or companies; and international administrative bodies." (Paras, 52; underscoring supplied).

It is noteworthy to state that "international Organizations such as the former League of Nations and the present United Nations are of course in their own way International Persons." (Paras, 60).

The United Nations, being possessed of juridical personality, has the following capacities: to contract; to acquire and dispose of immovable and movable property; and to institute legal proceedings. (Paras, 63, citing Art. 1, Convention on the Privileges and Immunities of the United Nations, adopted by the UN General Assembly on Feb. 13, 1946, in 1 UN Treaty Series 15).

Paras classifies the three (3) groups of International Organizations, aside from the United Nations, as follows:

(1) Inter-governmental bodies, including specialized agencies of the UN, e.g., Food and Agricultural Organization, International Labor Organization, International Monetary Fund, United Nations Educational, Scientific and Cultural Organization; (2) Other Inter-Governmental Bodies, e.g., Permanent Court of Arbitration, International Criminal Police Commission, Bank of International Settlements; (3) Non-Governmental International Bodies, e.g. International Commission of Jurists, Christian Family Movement Moral Re-Armament, International Chamber of Commerce, Rotary International. (cf. Paras, 60-61).

Private Individuals: Developing New Status in International Law

Paras discusses that while traditional writers insist that private individuals are merely objects and not subjects of international law, some recognized writers in recent years have accorded to the individual a new status in international law: they say, and with good reason, that private individuals should now be regarded as subjects in the international order, in view of the importance laid on them by the following:

"(1) the Charter of the United Nations Organization, and the Universal Declaration of Human Rights; x x x; "(2) the Nuremberg and Tokyo War Tribunals for War Crimes xxx; "(3) the norm of general international law which prohibitspiracy x x x: "(4) espionage rules; conventions punishing acts of illegitimate warfare; rules of general international law punishing private individuals for breach of blockade and carriage of contraband; "(5) the practice of certain courts of permitting foreigners to appear and prosecute claims; "(6) the Genocide Convention of 1948 which directly holds liable not only states, but also private individuals, for the mass extermination of a racial group; "(7) the existence of rules safeguarding the rights of aliens and minorities; "(8) punishment for the illegal use of the flag (Reporter's Note: this refers to vessels using the flag of s state with which such vessel is not registered);

"(9) the procedure in admiralty and maritime matters; "(10) the special status accorded to refugees, and to displaced persons, such as those fleeing from South Vietnam, from Cambodia, and, more recently, from Cuba x x x. (cf. Paras, 44-46).

BELLIGERENT AND INSURGENT COMMUNITIES

A status of belligerency recognized under international law may arise if (1) there exists within the State an armed conflict of a general character; (2) the insurgents occupy a substantial portion of the national territory; and (3) they conduct the hostilities in accordance with the rules of war thru organized groups acting under a responsible authority. (Coquia/Defensor-Santiago, 85). Recognition of a status of belligerency on the part of other States is necessary for the legal creation of the status of "belligerent community." (id.). A fourth requirement that has been suggested for the recognition of belligerency is that there must exist a circumstance which makes it "necessary" for the recognizing State to define its attitude tot he conflict. Coquia and Defensor-Santiago explains the matter, thus:

The reason for this final requirement is that if the parties to the struggle propose to exercise belligerent rights on the high seas in such a manner as to affect the recognizing State's maritime interests, the need for it to define its attitude to the struggle has arisen. If, on the other hand, a distant inland state with no maritime interests, and in no way affected by the conflict were to recognize the rebels as belligerents, it could open itself to the charge of encouraging rebellion. (id., 86).

Recognitionn of belligerency before the four conditions are fulfilled is considered as contrary to international law (id., 86, citing Sorensen, 286). Recognition of belligerency by a State not a party to the contest is frequently announced in a formal proclamation of neutrality between the two contending parties. Recognition may be express or implied. (id., 87). If the foreign government gives aid to the de facto (belligerent) government recognized by it, and that de facto government is defeated in the war, then the lawful government may hold the foreign State responsible for an act of unjustifiable aggression and of premature recognition. (id., citing Oppenheim-Lauterpacht, 13). The recognized belligerent community lacks the right to send or receive diplomatic agents to join international organizations, and to benefit in a normal manner from multilateral conventions concerned with peacetime international relations and activities of States. (id., 86).

Coquia and Defensor-Santiago cite the legal implications of recognition of a belligerent community, thus:

The granting of recognition of belligerency to rebels is only provisional. While conferring an equal status to warring groups, it does so only for the purposes and for the duration of the war. For the purposes and for the duration of the war, the insurgents recognized as a belligerent power possess for the most part, the duties and rights of States when engaged in war. (id., citing Kelsen, 413).

A state of insurgency is not equivalent to a state of belligerency. The former is "a rebellion which has not yet achieved the standing of a belligerent community xxx, a condition described as intermediate between internal tranquility and civil war." (Coquia, 88). The conditions for a state of insurgency are: (1) the insurgents must have a government and a military organization of their own; (2) the insurrection must be conducted in the technical forms of war, that is, it must be more than a petty revolt and must assume the true characteristics of a war; and (3) the government of the insurgents must in fact control a certain part of the territory of the State in which the civil war takes place. (id., citing Kelsen, 412). A related matter is the "government in exile". It has two classes, according to Coquia and DefensorSantiago:

The first category consists of governments whose heads and cabinets move from the national territory temporarily during the moments of crisis. xxx. In such cases, no formal act of recognition (is) necessary xxx because it (is) deemed that there (is) no break in legal continuity. A second category consist of governments formed abroad, in which case there can be no legal connection between the government in exile and the government operating on the national territory at the time. xxx. A formal act of recognition (is) necessary. xxx. The governments under the second category do not have any international status. While there may be groups assuming governmental powers for their national territory for political or other reasons, the fact is that they are merely hoping to form a legitimate government or State at some time in the future. x x x. xxx A recognition accorded during the effective continuance of the lawful (de jure) government over the greater part of the national territory may be considered as an act of interference in the national affairs of another State. (id., 97, citing the recognition of the Franco regime in Spain by Germany and Italy only five months after the Spanish civil war broke out at the time when the republican government was still in control of the greater part of Spain).

ADDENDUM:

PHILIPPINE TERRITORY IN RELATION TO THE U.N. CONVENTION ON THE LAW OF THE SEA

Article I of the 1987 Philippine Constitution defines the Philippine territory, thus:

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestial, fluvial,a nd aerial domains, including its territorial sea, the seabed, 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.

Pursuant to Art. 47.1 of the UN Convention on the Law of the Sea (UNCLOS) which entered into force on November 16, 1994, the Philippines, as an archipelagic state, may determine is archipelagic baselines as follows:

It may draw straight archipelagic baselines surrounding itself. This is done by locating "the outermost points of ... (its) outermost islands and drying reefs" and then by joining such points. It is required that the main islands are included within the baselines as well as an area in which "the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1." (Magallona, 80, citing Art. 47.1 of UNCLOS).

The "maritime zones" of the Philippines, under the provisions of UNCLOS, consist of the following: (1) the territorial sea; (2) the contiguous zone; and (3) the exclusive economic zone.

The breadth of its territorial sea is measured from archipelagic baselines up to a distance seaward not exceeding 12 nautical miles. If it declares a contiguous zone, this shall not exceed 24 nautical miles from the archipelagic baselines. Its exclusive economic zone shall not exceed beyond 200 nautical miles from the archipelagic baselines. (id., citing Arts. 2, 33.2, and 57 of UNCLOS).

The waters enclosed by the archipelagic baselines of the Philippines, which are called "archipelagic waters," are within Philippine sovereignty. It also extends to "airspace over archipelagic waters as well as their bed and subsoil, including the resources therein." (id., citing Art. 49 of UNCLOS).

Pursuant to Articles 52 and 53 of UNCLOS, "ships of all states enjoy the right of innocent passage through archipelagic waters" (which includes "internal waters" or the "territorial sea") and such archipelagic waters may also be subject to "the continuous and expeditious passage of foreign ships and aircraft, known as the right of archipelagic sealanes." All ships and aircraft enjoy this right thru designated sea lanes and air routes. The "territorial sea", which is a zone of Philippine sovereignty, is subject to the right of innocent passage by ships of all states, including "foreign nuclear-powered ships, those carrying nuclear or other inherently dangerous or noxious substances, submarines and warships." Also, the Philippine territorial sea is also restricted by the right of archipelagic sea lanes passage but "only such portions of the territorial sea adjacent tot he Philippine archipelagic waters." All of the above provisions of UNCLOS pose potential constitutional problems. (id., 82, citing Arts. 2, 17, 20, 23, 24, 30, 52 and 53 of UNCLOS).

Magallona discusses the legal status of the "contiguous zone" thus:

Adjacent to the territorial sea, it is a zone where the Philippines may exercise certain protective jurisdiction, i.e., to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations and to punish violation of laws committed within its territory or in the territorial sea. The Philippines does not have sovereignty over the contiguous zone. It is a zone of jurisdiction, not of sovereignty. (id., 82-83, citing Art. 33.1 of UNCLOS).

As to the "exclusive economic zone", the Philippines has sovereign rights over the same "for purposes of exploring, exploiting, conserving and managing the natural resources" therein and it as "jurisdictional rights with regard to artificial islands, environmental protection and maritime scientific research." (id., 83, citing Arts. 52.1 [a] and [b] of UNCLOS).

The Philippines may be required to grant other states access to living resources in its EEZ:

xxx It must determine its capacity to harvest living resources. If it does not have the capacity to harvest the entire allowable catch, it shall give other states access to the surplus of the allowable catch by means of agreements consistent with the UNCLOS.

x x x.

xxx In the EEZ, all states continue to enjoy the freedom of the high seas, subject to the rights of the Philippines as thus mentioned.Generally, the rules of international law pertaining to the high seas apply to the EEZ. (id., 84-85, citing Arts. 56.1 [a], 58.1, 58.2, 61.1, and 62.3 of UNCLOS).

There thus appears an apparent incompatibility with the 1987 Constitution. It will be noted that Sec. 2, Art. XII of the 1987 Constitution provides that "the State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve it use and enjoyment exclusively to Filipino citizens." (id., 84; original underscoring by the author). What is the Philippine "continental shelf" under UNCLOS? Magallona discusses its extent, thus:

It is the sea-bed and sub-soil of the submarine areas extending beyond the Philippine territorial sea throughout the natural prolongation of the land territory. It extends up (1) the outer edge of the continental margin or (2) up to the distance of 200 nautical miles from the archipelagic baselines, whichever is farthest. (id., 85, citing Art. 76 of UNCLOS).

The continental shelf does not form part of the "Philippine territory." (id., 85).But the Philippines has the sovereign right for the purpose of exploring it and exploiting its natural resources. (id., citing Art. 77 and 78 of UNCLOS).Elucidating further on the "continental shelf", Magallona writes:

The UNCLOS describes these rights (i.e, to explore and exploit natural resources in the continental shelf) as exclusive in the sense that if the Philippines does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without its consent Rights of the Philippines over the continental shelf "do not depend on occupation, effective or notional, or on any express proclamation. (Art. 77.2, UNCLOS; underscoring supplied). x x x. The Philippines has the exclusive right to construct, to authorize and regulate the construction, operation and use of artificial islands and installations. (Arts. 60 and 80, UNCLOS). Its jurisdiction over these isexclusive, in particular with respect to customs, fiscal, health, safety and immigration regulations. (Art. 60.2, UNCLOS).

x x x.

The Philippines has exclusive right to authorize as well as to regulate drilling for all purposes. (Art. 81, UNCLOS). (id., 86, citing Arts. 77.2, 60.2, and 81 of UNCLOS).