Documenti di Didattica
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amicable Hostilities
Group 1
What is legation or the right of legation?
Republic of China
Iraq Italy
(Taiwan)
United Kingdom
Sources
• https://thelawdictionary.org/ambassador/
• http://law.jrank.org/pages/4281/Ambassadors-
Consuls-Powers-Duties.html
• http://legal.un.org/ilc/texts/instruments/english/co
nventions/9_1_1961.pdf
• https://www.dfa.gov.ph/resources/office-of-
protocol/foreign-embassies
LEGATION
APPOINTMENT
OVERVIEW
RECEIVING
SENDING STATE
STATE
INFORMAL
INFORMAL INQUIRY CONFORMITY
(Enquiry) (Agrément)
•Lettre de creance
(letter of credence),
•Diplomatic
passport
authorizing his
travel;
•Instructions, and
•Cipher, or code or
secret key,
In the Philippine Setting…
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint
all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by
law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads
of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproved by the Commission
on Appointments or until the next adjournment of the Congress.
Removal
Resignation
Death
Expiration of terms
To their families;
This is when an alien can claim a more favored position than the
national of the local state and hold the state liable for injuries
committed against him while within its territory.
Function: to assure the traveler that when his rights are violated
Act or Omission Constituting
International Delinquency
The treatment of the alien should amount to an outrage, to bad
faith, willful neglect of duty, or insufficiency of governmental
action.
That every reasonable and impartial man would readily
recognize such treatment to be insufficient and evidence.
International Standard of Justice
The standard of the reasonable State, which means reasonable
according to ordinary means and notions accepted in modern
civilization.
Execution of an alien without trial considered as falling below
international standard of justice.
Simply put, it is the standard of a reasonable state as referring to
the ordinary norms of official conduct observed in civilized
jurisdictions.
Exception:
No remedies to exhaust.
No adequate machinery for the administration of justice.
International delinquency results from an ‘act of state’.
The Calvo Doctrine
From a substantive perspective, it required equality of treatment
between nationals of the Host State and aliens, therefore rejecting
any claim for better treatment, and recognition, of the
“International Minimum Standard” of treatment.
From a procedural perspective, it denied aliens access to fora and
remedies that were not available to nationals, and effectively
limited their options to recourse to the domestic judicial system.
Art. 37: If parties fail to settle disputes via Art. 33, they
shall refer it to the SC.
If SC deems the dispute to likely endanger international
peace and security, it shall: (a) take action under Art. 36;
or (b) recommend appropriate terms of settlement.
Art. 38:
If all parties request, SC may make recommendations for
pacific settlement.
Settlement of International Disputes
A. Non-judicial
Negotiation:
A. Non-judicial
Preliminary step is ―good offices‖ when a neutral 3rd
party tries to bring 2 disputants together, after which
disputants look for a win-win solution via a give-and-take
process.
Mediation:
Involves assistance of 3rd parties (approved by
bother parties) who either act as bridge between parties
who don’t meet OR may sit with the disputants to chair
Settlement of International Disputes
A. Non-judicial
Inquiry:
Fact-finding done by a designated group of
individuals or institutions.
Resolves disputes based on questions of fact.
Settlement of International Disputes
A. Non-judicial
Conciliation:
A more formal technique whereby parties agree to
refer controversies to a 3rd party to make findings of
fact and recommendations.
Generally, parties are not bound by the
recommendations. Merely clears the air.
Settlement of International Disputes
B. Quasi-judicial
Arbitration
Binding settlement of a dispute on the basis of law by a non-
permanent body designated by the parties.
The compromis d’arbitrage is agreed upon by the parties and
sets out: (a) composition; (b) jurisdiction; (c) rules of procedure to
be applied.
States cannot be required to submit to arbitration UNLESS there
is a previous agreement.
Different from judicial settlement since parties have a greater say
in deciding the law applied, composition of tribunal, process, etc.
Settlement of International Disputes
B. Quasi-judicial
B. Quasi-judicial
Arbitral decisions
Applies international law UNLESS parties specify that some other
law applies.
Arbitral decisions may be challenged if:
a. the arbitral body exceeds its powers
B. Quasi-judicial
B. Quasi-judicial
C. Judicial
ICJ
All members of the UN are ipso facto parties to the Statute of
ICJ, but it does not mean acceptance of the court’s jurisdiction.
Only means that the State may accept its jurisdiction.
Only states may be parties in the court.
General principles:
a. States cannot be compelled to submit their disputes to
international adjudication unless they consent.
b. States may limit their acceptance to certain types of disputes
and attache various conditions and reservations.
Settlement of International Disputes
C. Judicial
Art. 3:
15 members, no 2 of whom from the same State
Settlement of International Disputes
C. Judicial
Art. 4:
The Court can form chambers, composed of 3 or more judges,
for dealing with particular categories of cases; or (b) particular
cases, the composition to be approved by the parties; or (c) at
the request of the parties.
Art. 26:
Chamber decisions are deemed Court decisions.
Settlement of International Disputes
C. Judicial
Art. 27:
Judges of the nationality of the parties shall retain their right to sit
in the case.
If a judge of the same nationality of a party is included in the
Bench by the Court, the other party may choose a person to sit
as judge, preferably among those nominated as candidates.
If the Bench does not include a judge of the same nationality as
the judges, the parties may choose a judge.
The President shall request the members of the Chamber to give
place as necessary.
Several parties of the same interest are deemed one party only.
Settlement of International Disputes
C. Judicial
C. Judicial
1. Facts:
US acceded to the optional clause, thereby accepting the
compulsory jurisdiction of the ICJ but subsequently made a
reservation for ―disputes with regard to matters which are
essentially within the domestic jurisdiction of the US, as
determined by the US‖ (Connally amendment)
EL Al Israel airliner was driven off course by bad weather and
innocently passed through Bulgarian air space where it was shot
down by Bulgarian military planes, killing all passengers and
crew, including 6 US nationals.
Investigators argue that Bulgarian military failed to adhere to
international civil aviation agreements involving appropriate
interception and identification of intruding aircraft.
Settlement of International Disputes
1. Facts:
The case was initially brought to the ICJ by Israel, where ICJ
ruled that it had no jurisdiction, stating that Bulgaria’s acceptance
of the optional clause in the Statute of PCIJ did not carry over to
acceptance of the optional clause of the ICJ.
US continued its claim based on violation of international law and
injuries to US nationals.
On grounds of reciprocity and consensual basis of ICJ
jurisdiction, Bulgaria contests ICJ’s jurisdiction. Bulgaria had
invoked the Connelly amendment exempting matters within its
internal competence and contended that its airspace security and
anti-craft defenses were within its domestic jurisdiction.
US withdrew its application, which the Court accepted as the end
Settlement of International Disputes
Facts:
In 1964, the US made a Optional Clause Declaration with a
reservation that ―it would remain in force for 5 years and
thereafter until the expiration of 6 months after notice was given
to terminate.‖
The 1984 notification was deposited with the Sec.Gen. by the
US, stating that ―the 1946 declaration shall not apply to disputes
with any
Central American State or arising out of events in Central
America...this notice shall take place immediately and remain in
force for 2 years.‖
The ICJ initially found that Nicaragua could rely on the 1946
declaration since it was a ―state accepting the same obligation‖
Settlement of International Disputes
Held:
In its 1946 declaration, the US included a proviso which required
a 6 months’ notice prior to termination.
US contends that Nicaragua was not a ―state accepting the
same obligation‖ since its own declaration was of undefined
duration and thus liable to immediate termination. Thus,
Nicaragua could not rely the the US’ time-limit proviso under the
principle of reciprocity.
However, the Court found the same untenable, given that the
Settlement of International Disputes
I. Facts:
Portugal initiated proceedings against Australia for the latter’s
―failure to observe the obligation to respect the duties and
powers of Portugal as the administering power of East Timor and
the right of the people of ET to self determination and related
rights‖ pertaining to the Treaty of 1989 for the creation of a zone
of cooperation in the area between East Timor and Northern
Australia.
As basis for jurisdiction, it referred to the declarations of both
states under the optional system.
Australia contends that the real dispute is between Portugal and
Indonesia and that the latter has not signed the optional clause.
Settlement of International Disputes
I. Facts:
Australia contends that the effect of Portugal’s application would
require the Court to determine the rights and obligations of
Indonesia to settle the validity of the treaty between Australia and
Indonesia.
Portugal insists that the dispute is exclusively based on the
objective conduct of Australia when the latter negotiated,
concluded and initiated performance of its treaty with Indonesia.
Settlement of International Disputes
II. Held:
Court found that Australia’s behavior cannot be assessed without
first entering into the question of why Indonesia could not lawfully
have concluded the 1989 treaty. The very subject matter would
be a determination whether, having regard to the circumstances
in which Indonesia entered and remained in East Timor, it
could/not have acquired power to enter into treaties on behalf of
ET relating to resources of its continental shelf. The court cannot
make such determination without the consent of Indonesia.
W/N the behavior of Australia breaches rights erga omnes (ET’s
right to self determination), the Court cannot rule on the
lawfulness of the conduct of a State when its judgment would
Settlement of International Disputes
II. Held:
Finally, the court ruled that it cannot be inferred from the sole fact
that a number of resolutions of the GA and the SC refer to
Portugal as the administering Power of ET that they intended to
establish an obligation on 3rd states to treat exclusively with
Portugal as regards the continental shelf of ET.
Settlement of International Disputes
Provisional Measures
Art. 41:
ICJ has the power to indicate any provisional measures which
ought to be taken to preserve the respective rights of either party
Pending final decision, notice of the measures suggested shall
be given to the parties and the SC.
Settlement of International Disputes
Nicaragua vs. US
I. Facts:
Court finds it necessary to indicate provisional measures under
Art. 41 to preserve the rights claimed. Such decision in no way
prejudges the question of jurisdiction to deal with the merits of
the case.
Such measures include:
a. US should cease and refrain from any action restricting, blocking or
endangering access from or to Nicaraguan ports, and in particular, laying
mines.
b. The right to sovereignty and political independence of Nicaragua.
States should refrain from using force or threat of force against its
territorial integrity or political independence. States should not intervene
in matter within the domestic jurisdiction of a State.
c. The governments of US and Nicaragua should ensure that no action is
Settlement of International Disputes
Nicaragua vs. US
I. Facts:
d. Both Governments should ensure that no action is taken which might
prejudice the rights of the other party in respect to the carrying out of
whatever decision the Court may render.
e. Until final judgment, the Court will keep matters covered by this order
continuously under review.
f. Written proceedings shall first be addressed to the question of
jurisdiction of the Court.
Settlement of International Disputes
I. Facts:
By request of the Federal Republic of Yugoslavia against the
NATO states (Belgium, Canada, France, Germany, Italy,
Netherlands, Portugal, Spain, UK, US) in relation to the
bombings carried out by NA 8:00 AM forces.
Court recognizes that it can exercise jurisdiction only between
states parties to a dispute who not only have access to the Court
but also have accepted the jurisdiction of the Court, either in
general form or for the individual dispute concerned.
In requests for provisional measures, the Court need not, before
deciding w/n to indicate them, finally satisfy itself that it has
jurisdiction on the merits of the case, yet only if the provisions
Settlement of International Disputes
I. Facts:
Yugoslavia claims ICJ jurisdiction based on Art. IX of the
Genocide Convention to which both parties are signatories.
US contends that it made a clear and unambiguous reservation
that ―with reference to Art. IX, specific consent of the US is
required in each case.‖
Further, (a) reservations in the Genocide Convention are
generally permitted; (b) the reservation is not contrary to its
object and purpose; (c) absence of Yugoslavia’s objection to the
reservation means acceptance.
US adds that there no legally sufficient basis between the
Settlement of International Disputes
II. Held:
Court accepts US’ contentions and finds that it does not have
jurisdiction to entertain the dispute between Yugoslavia and the
US alleged to fall under the provisions of the GC, and that Article
manifestly does not constitute a basis of jurisdiction in the
present case, even prima facie.
Even under Art. 38, par. 5 of the Rules of Court which allows the
jurisdiction of the Court to be founded upon the consent thereto
yet to be manifested or given by the other party, the fact that US
has not made such consent does not create a prima facie
jurisdiction allowing the Court to indicate any provisional
measure.
Settlement of International Disputes
II. Held:
There is a fundamental distinction between the question of
acceptance by a State of the Court’s jurisdiction and the
compatibility of particular acts with international law.
W/N States accept jurisdiction, they remain responsible for acts
attributable to them that violate IL, including humanitarian law.
Disputes relating to the legality of such acts MUST be resolved
by peaceful means chosen by the parties.
Settlement of International Disputes
Intervention
Art. 62:
Art. 63:
Registrar shall inform all parties to a convention
regarding cases which relate to its construction.
Every state notified has the right to intervene, but the
construction given by the judgment shall be binding on
Settlement of International Disputes
I. Facts:
Nicaragua filed an application to intervene based on Art. 62:
a. to protect the legal rights of the Republic of Nicaragua in the
Gulf of Fonseca and the adjacent maritime areas by all legal
means available
b. to inform the Court of its legal rights which are in issue in the
dispute
The Court points out that there must be a legal interest that may
be affected. Further, Rules of Court require a statement of the
―precise object of intervention.‖ Court finds that the subject of
intervention is proper.
Settlement of International Disputes
II. Held:
The Court’s decision’s binding power rests upon the agreement
of both parties to the case to confer jurisdiction upon the Court.
Normally, therefore, no other State may involve itself in the
proceedings without the consent of the original parties.
However, procedures for a 3rd state to intervened are provided in
Art. 62 and 63 of the Court’s Statute. The Court’s competence in
this matter is not derived from the consent of the parties to the
case, but the the consent given by them, in becoming parties to
the Court’s statute. Thus, the Court has competence to permit
intervention (subject only to the requirements of object and
purpose) even if both parties oppose.
Settlement of International Disputes
II. Held:
A state allowed to intervene does not become a party to the
case. It is not allowed to tack on a new case nor have its own
claims adjudicated by the Court.
It does not acquire the rights or become subject to the
obligations, which attach to the status of a party. It has the right
to be heard by the Chamber, but limited to the scope of its legal
interests.
Settlement of International Disputes
Art. 60:
Final without appeal. In the event of dispute as to (a)
meaning or (b) scope of the judgment, the Court shall
construe it upon request of any party.
Settlement of International Disputes
Art. 61:
Application for Revision of a judgment may be made only
when based upon newly discovered fact, which must be:
(a) a decisive fact; (b) at the time judgment was given,
was unknown to the Court and to the party; (c) such
ignorance was not due to negligence.
The Court must first decide whether the fact is of such
character as to lay the case open to revision, and
declaring the application admissible.
The Court may require previous compliance with the
terms of judgment before it admits proceedings in
revision.
Application must be made within 6 months from
Settlement of International Disputes
Art. 94 of UN Charter:
If any party fails to perform any obligation under ICJ
judgment, the other party may have recourse to the SC,
which may make recommendations OR decide upon
measures to be taken to give to the judgment.
Such enforcement measures are subject to veto powers
of the permanent members.
Winning state may make uses of alternative methods of
enforcement, such as economic or diplomatic pressure.
Advisory
non-binding
non/acceptance depends on internal law of the institution
Settlement of International Disputes
Art. 96 UN Charter:
SC and GA may make requests for advisory opinion. GA
may also authorize other UN agencies to seek advisory
opinion on legal questions arising within the scope of
their activities.
Art. 65:
Advisory jurisdiction in accordance with the UN Charter
Art. 66:
Registrar shall: