CHAPTER 12
International Human Rights Law What is the Universal Declaration of Human Rights?
What were the earlier doctrines preceding the developing
doctrine on human rights prior to the birth of the UN?
- These include doctrines on humanitarian intervention,
state responsibility for injury to aliens, protection of
minorities, League of Nation’s Mandates and Minorities
Systems, and international humanitarian law (which is
the human rights law in time of war).
What is the difference between the Asian and Western view
on human rights?
- The Western view puts emphasis on the individual
while Asians give emphasis on the community.
How did the Western tradition on human rights develop?
- It has developed from the Natural Law view that certain
rights exist as a result of a law higher than positive or
man-made law. This higher law itself emanates from
the nature of man which demands certain immunities
or liberties.
- This view flourished in the 17th century and provided a
recourse against arbitrary power. Much of what the
Natural Law held has already become part of
customary or conventional law and has served as a
counterforce against a positivist emphasis on the
importance of the state.
What are the three (3) generations of human rights?
 The first generation consists of the traditional civil and
fundamental rights;
 the second generation, social and economic rights;
 third generation, right to peace, clean environment, self-
determination, common heritage of mankind,
development, minority rights. There is still a dispute about
the cultural in human rights.
What distinguishes post WWII developments from earlier
human rights tradition?
- It is the growing acceptance of the view that the way
nations treat people under their jurisdiction is no longer
just a domestic concern but also one that calls for the
attention of the international community. This view
represents a chipping away at the old concept of
sovereignty and it recognizes that individuals can be
subjects of international law and that they can find
protection and remedies within the international
community against abuses by their own government.
What is the role played by the UN in the development of the
new international law on human rights?
- It became the cradle for the development of the new
international law on human rights. However, the UN
Charter's own provisions on human rights were
preliminary. They did not make human rights law but
they represented a beginning which later would
develop into international law.
What then are the notable defects/flaws in the provisions of
the Charter?
- In the charter, there are no definitions of human rights,
there is no clear commitment of members to avoid
violations, and there is set down no instrument for the
correction or vindication of violations of human rights
that might occur. Nations' sensitivity to their
sovereignty is reflected in Article 2(7) of the UN
Charter. (provision on non-interference of UN with
domestic affairs)
- It was adopted and proclaimed by the General
Assembly on December 10, 1948. It was not seen as
a law but only as a “common standard” for nations to
attempt to reach. Its authority is primarily moral and
political.
What is the distinction between a mere declaration and a
covenant?
1) The core of an international covenant lies a meeting of
minds of the contracting parties on the specific duties and
obligations they intend to assume, and the agreement that the
undertakings must be effectively informed. A declaration by
contrast admits the presumption that something less than full
effectiveness in terms of law is intended.
2) A covenant leaves no doubt about the legal nature of
the provisions it contains, whereas a declaration is often
deemed to enunciate moral rules only.
3) The vinculum juris created by a covenant generally
absent from a declaration, places a duty on the contracting
parties to bring their laws and practices into accord with the
accepted international obligations and not to introduce new laws
or practices which would be at variance with such obligations.
(Vratisla v Pechota)
How does The Covenant on Civil and Political Rights
provide for right to life, liberty and property and equality?
- The Covenant's provision on the right to life in Article
6(1) and its provision on genocide Article 6(4) and the
general guarantee of liberty in Article 9(1) do not go
beyond what Article III, Section 1 of the Philippine Bill
of Rights guarantees. The Covenant does not also say
when protected life begins, whereas the Philippines
protects “the life of the unborn from conception.”
- There is likewise no provision on the right to property
in the Covenant though there exists a provision in
Article 17(1) in the Universal Declaration. It has been
explained that in such a time “when property rights had
lost much of their previous sanctity, it was inevitable
that the Commission would find it difficult to draft a text
that would command general acceptance.” (Pechota)
- The Covenant in Article 6(2) expresses a bias for the
abolition of the death penalty and allows its imposition,
in countries which still have a death penalty, only after
conviction for the most serious crimes. The Covenant
adds in Article 6(6) that “Nothing in this article shall be
invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present
Covenant.” In fact, in the Second Optional Protocol to
the Covenant, signed at the General Assembly meeting
on December 15, 1989, Article 1 says: 1) No one within
the jurisdiction of a State Party to the Present Protocol
shall be executed. 2) Each State Party shall take all
necessary measures to abolish the death penalty
within its jurisdiction.”
- The 1987 Constitution prohibited the imposition of the
death penalty unless a new law is passed imposing
death for “heinous crimes.” Congress restored the
death penalty for heinous crimes but RA 9346 has
since disallowed it.
- Provisions on physical liberty, and arrests and
detention found in Articles 8, 9 and 11 of the Covenant
are more than adequately covered by corresponding
provisions of the Bill of Rights.
 - The rights of an accused found in Articles 14 and 15 of
the Covenant have long been provided for in the
Philippine accusatory system as found in the
Constitution. However, the Covenant in Article 14 is
more restrictive in the matter of publicity of criminal
proceedings “where the interest of juvenile persons
otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.”
These standards would not easily pass the Philippine
tests for publicity and free press.
- The Covenant also provides in Article 9(5) that a victim
of unlawful arrest or detention shall have an
enforceable right to compensation; and in Article 14(6)
that a victim of miscarriage of justice “shall be
compensated according to law, unless it is proved that
the non-disclosure of the unknown fact in time is wholly
or partly attributable to him.” The Philippine
Constitution only asks compensation in Section 12(4)
of the Bill of Rights where the legislature is asked to
compensate violations of rights of a person under
investigation.
- The guarantee of equality found in Article 26 of the
Covenant is the Bill of Rights' more terse “equal
protection”” clause in Article III, Section 1. The
guarantee is of legal equality. It does not embody the
aspiration towards lesser material inequality.
How does the Covenant provide for torture, ill-treatment
and prison conditions?
- Articles 7 and 10 of the Covenant prohibit torture and
other forms of ill-treatment that offend not only against
bodily integrity but also against personal dignity and the
requirement of humane prison conditions.
- The UN Human Rights Commission has expressed the
view that imprisonment “ïn conditions seriously
detrimental to a prisoner's health” constitutes violations
of Articles 7 and 10(1) of the Covenant.
What are three rights that constitute freedom of movement
under the Convention and what are the limitations to these
rights?
- These are found in Articles 12(1) and (2) and these
include the rights to travel within the country, the right
to leave the country and the right to change one's
residence.
- The limitations on these three rights are found in
Article 12(3) and consist of “”those provided by law,
are necessary to protect national security, public order
(order public), public health or morals or the rights and
freedoms of others, and are consistent with the other
rights in the present Covenant.”
- They are similar to the limitations found in the
Philippine Bill of Rights except that unlike the Philippine
provision, it does not require a court order for
impairment of liberty of abode.
- The Covenant unlike the Philippine Constitution, in
Article 12(4) separates the right to return to one's
country from the right to leave one's country.
- The limit to the right to return to one's country in the
Covenant is implied in the word “arbitrarily”. “No one
shall be arbitrarily deprived of the right to enter his own
country.””
- The Covenant intends to make the limitation more
narrow than for the right to leave the country since exile
is now prohibited by customary law and the prohibition
of exile may even be jus cogens.
How did the Philippine Supreme Court interpret the
separation of the right to leave one's country and the right
to return to one's country?
- The Court's argument was that since the Declaration of
Human Rights and the Covenant on Human Rights
separate the right to leave the country from the right to
return to one's country, the two rights are distinct and
the right to return to one's country is not guaranteed by
the specific guarantees for the right to travel and liberty
of abode and that therefore President Marcos could not
appeal to Section 6 of the Bill of Rights. The vote was
8 to 7.
Distinguish “having a legal personality” from “having a
capacity to act.”
- Legal personality belongs to all, whether citizens or
aliens while capacity to act may not be available to
some by reason, for instance of infancy, minority, or
insanity.
What is meant by the guarantee to protect the right to be
recognized as a person before the law, in Article 16 of the
Covenant?
- The guarantee in its fullness means that state parties
must “treat every human being everywhere, male or
female, young or old, alien or citizen, as a person
before the law, enjoying the protection of the law and
of the forces of the law, with power to have rights and
assume obligations: to own, acquire, and dispose of
property; to make contracts; to sue and be sued; and
to invoke other legal remedies.”
- No specific guarantee appears in the Constitution but
that is presumed to exists runs through the entire
document.
Is there any statement in the Covenant when does one
become a person?
- It does not. The Philippine Constitution protects “the life
of the unborn from conception;” but it does not say that
the unborn is a person;
- Though the Civil Code says that for purposes beneficial
to him the unborn is considered a person.
What are the limits on external exercise of freedom of
thought, conscience and religion?
- External exercise of freedom of thought, conscience
and religion is guaranteed subject to the protection of
public safety, order, health, or morals or the
fundamental rights of others.
What are the two-fold aspect of the concern for minorities?
- The first is the fear of “a secessionist movement by
minorities, threatening territorial integrity of the state, or
about the danger of interference by other states with
which the minorities are connected by ties of race,
national origin, language, or religion.
- The second is a genuine “concern for the human rights
of minorities and the desire “that minorities will flourish
so as to preserve that diversity of the human race..”
What are the two important rights covered by the right to
self-determination?
(1) the right “freely to determine their political status and freely
pursue their economic, social and cultural development”
(2) the right “for their own ends, to freely dispose of the natural
wealth and resources without prejudice to any obligations
arising out of international cooperation, based upon the
principle of mutual benefit, and international law.”

But minorities does not have a right of self-determination in the
sense of the right to secede.
What are the internal and external aspects of self-
determination?
- The internal right of self-determination consists of the
right “freely to determine their political status and freely
pursue their economic, social and cultural
development” and the right, “for their own ends, to
freely dispose of the natural wealth and resources
without prejudice to any obligations arising out of
international cooperation, based upon the principle of
mutual benefit, and international law.” These also
necessarily include the other related political rights.
- The external right of self-determination belongs to
colonies and to non-self-governing and trust territories.
What is the nature and significance of the Protocol to the
Covenant?
- It was adopted by the United Nations on December 16,
1966 as a supplement to the Covenant on Civil and
Political Rights and entered into force on March 23,
1976. The Philippines has ratified the protocol.
- This separate treaty is designed to enable private
parties who are victims of human rights violations.
However, complaints may be filed only against states
which have ratified the Protocol. There is an eighteen-
member Human Rights Committee created by the
Covenant which receives and handles the complaints.
Why is there a division between civil and political rights, in
one hand, and economic, social and cultural rights, on the
other?
- The reasons for the division are both ideological and
practical.
 Ideologically, the contest was between Western
countries on the one hand and socialist and Third
World countries on the other. The American delegation
argued that its government would find difficulty in
accepting a treaty containing economic and cultural
rights beyond those guaranteed by the Constitution.
For the socialist and Third World countries, on the other
hand, the absence of economic, social and cultural
guarantees could render civil and political guarantees
meaningless.
 On the practical level, it became obvious that
implementing civil and political guarantees, the
classical “Thou shalt nots” of the Western tradition,
could be done immediately; whereas the
implementation of economic, social and cultural rights
could only be done gradually and dependently on
development conditions. Thus, the decision to divide,
would at least assure approval of a document on civil
and political rights.
- However, Article I of both Covenants say exactly the
same thing about the right of self-determination of
people. There are substantial overlapping on other
subjects of the Covenants.
What are the rights included in the Covenant on Economic,
Social and Cultural Rights?
- Included are the social welfare rights stated in detail which
consist of
 the right to work (Article 6);
 to favorable conditions of work (Article 7),
 to form free trade unions (Article 8),
 to social security and insurance (Article 9),
 to special assistance for families (Article 10),
 to adequate standard of living (Article 11),
 to the highest standard of physical and mental health
(Article 12),
 to education including compulsory primary education
(Article 13 & 14), and
 to the enjoyment of cultural and scientific benefits and
international contacts (Article 15).
- These correspond to the economic, social and cultural
rights that are also found in the Constitution,
 principally Article XIII (Social Justice),
 Article XIV (Education, Science and Technology, Arts,
Culture, and Sports), and
 Article XV (The Family).
What is the duty of the Philippines to implement provisions
of these international human rights law?
- Since the Philippines is a party not only to the UN
Charter and the Universal Declaration of Human Rights
but also to the two Covenants as well as to the Optional
Protocol to the Covenant on Civil and Political Rights,
it is bound, both in its domestic sphere and its foreign
relations, “to bring its laws and practices into accord
with the accepted international obligations and not to
introduce new laws or practices which would be at
variance with such obligations.” The duty of each State
Party to implement the Covenant on Civil and Political
Rights is provided for in its Article 2. (Bernas, 2009)
- Treaty commitments become part of domestic law. The
self-executing provisions of the Covenants must be
implemented in domestic law. Those which are not,
must be attended to by “necessary steps, in
accordance with its constitutional processes and with
the provisions of the present Covenant”, which may
either be legislative or by executive measures.
What principle governs the duty of each State Party to
implement the provisions of the Covenant on Economic,
Social and Cultural rights?
- It is the principle of progressive realization as embodied in
Article 2, thereof. Each State Party is mandated to take
steps, individually and through international assistance
and cooperation, especially economic and technical, to the
maximum of its available resources, with a view to
achieving progressively the full realization of the rights
recognized in the Convention by all appropriate means,
including particularly the adoption of legislative measures.
- Progressive realization means “that a state is obligated to
undertake a program of activities… and to realize those
rights which are “recognized” by the Economic Covenant.
While the obligation of progressive realization is limited by
resource constraints, the Economic Covenant indicates
that priority should be given to social welfare and that the
level of effort should increase over time. These obligations
apply to any state that has ratified the Economic Covenant,
regardless of that state’s economic resources.”
What are the other conventions on Human Rights?
- These include the 1948 Genocide Convention, the 1966
Convention on the Elimination of All Forms of Racial
Discrimination, the 1979 Convention on the Elimination of
All Forms of Discrimination Against Women, the 1984
Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment, the 1989 Convention
on the Rights of the Child, and the 1990 Convention on
Migrant Workers.
What are some human rights principles that have become
customary law in the light of state practice?
- These include the prohibition of torture, genocide,
slavery and the prohibition of discrimination.
What are the two important procedures being adopted by
the Human Rights Commission for responding to violation
of human rights?
- An important UN body is the Human Rights
Commission, a subsidiary organ of ECOSOC. It is
adopting two different procedures for responding to
violations of human rights.
1.) Confidential consideration under ECOSOC Resolution
1503
 It is also known as the 1503 Procedure or confidential
procedure. It authorizes the Sub-Commission on
Prevention of Discrimination and Protection of Minorities to
appoint a working group consisting of not more than five
members to meet once a year in private meetings to
consider all communications, including replies of the
government concerned, with a view to bringing to the
attention of the Sub-Commission those communications
which appear to reveal a pattern of gross and reliably
attested violations of human rights.
 The confidential findings of the Sub-Commission are
brought to the attention of the Commission on Human
rights. The Commission on Human Rights is expected to
submit its report and recommendation to the Economic and
Social Council. The procedure is kept confidential until
such time as the Commission on Human Rights decided to
make recommendation to the ECOSOC.
2.) Public debate procedure under ECOSOC Resolution
1235
 The Commission on Human Rights was established in
1946 as a subsidiary organ of ECOSOC. In 1967,
ECOSOC Resolution 1235 authorized the Commission
and its Subsidiary Commission on Prevention of
Discrimination and Protection of Minorities to examine
reports relevant to gross violations of human rights and to
examine reports relevant to gross violations of human
rights and to examine whether the violations revealed a
consistent pattern and thereafter make recommendations
to ECOSOC.
Two types of activities are carried out by this procedure:
(1) it holds annual public debates in which governments and
NGOs are given the opportunity to identify publicly country
specific situations which deserve attention.
(2) it engages in studies and investigations of particular
situations through the use of various techniques the
Commission might deem appropriate.
What can result from these procedures?
- Results may include embarrassment of countries
referred that might generate change in policy; pressure
on government to take the issue on a bilateral or
multilateral level; statements of exhortation from the
Commission or call from the Commission for all available
information; the Commission might appoint a Special
Rapporteur to examine and submit a report on the issue;
the Commission might ask the Security Council to take
up the issue with a view to promulgating sanctions.
What is the International Criminal Court?
- It is the first permanent, treaty based, international
criminal court established to promote the rule of law and
ensure that the gravest international crimes do not go
unpunished.
- It shall be a permanent institution and shall have the
power to exercise its jurisdiction over persons for the
most serious crimes of international concern, as referred
to in the Rome Statute, and shall be complementary to
national criminal jurisdictions. (Rome Statute, Art. 1)
(Sarmiento, 2007)
- It was established by the Rome Statute of the
International Criminal Court on July 17, 1998, when 120
States participating in the “United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of
an International Criminal Court” adopted the Statute.
The Statute enters into force on July 1, 2002 and anyone
who commits any of the crimes under the Statute after
this date will be liable for the prosecution by the Court.
What is the Rome Statute?
- The Rome Statute established the ICC. The Statute
was opened for signature by
- All states in Rome on July 17, 1998 and had remained
open for signature until December 31, 2000 at the UN
Headquarters in New York. The Statute entered into
force on July 1, 2002.
May the provisions of the Rome Statute be given retroactive
effect?
- No, the Rome Statute applies the principle of non-
retroactivity ratione personae. Article 24 of the Statute
states that “no person shall be criminally responsible
under this Statute for conduct prior to the entry into
force on July 1, 2002 and therefore crimes committed
prior to that date will not be liable for prosecution by the
ICC.
Where is the seat of the ICJ?
- The seat of the Court is The Hague in The Netherlands.
The Court will be temporarily housed at “de Arc” on the
outskirts of The Hague before moving to its permanent
premises at the Alexanderkazerne. (Art. 3)
Does the ICC have international legal personality?
- Yes, the Court shall have international legal personality.
It shall also have such legal capacity as may be
necessary for the exercise of its functions and the
fulfillment of its purposes.
What are the crimes falling under the jurisdiction of the
ICC?
- The jurisdiction of the Court shall be limited to the most
serious crimes of concern to the international
community as a whole. The Court has jurisdiction in
accordance with this Statute with respect to the
following crimes:
1. The crime of genocide;
2. Crimes against humanity;
3. War crimes;
4. The crime of aggression.
Would the ICC replace national or domestic criminal
courts?
- No, it will not replace national or domestic courts but
will be complementary to national criminal jurisdiction.
- The Court will only investigate and prosecute if a State
is unwilling or unable to genuinely prosecute. This will
be determined by the judges.
- Unjustified delays in proceedings as well as
proceedings which are merely intended to shield
 persons from criminal responsibility will not render a
case inadmissible before the ICC (Art. 17)
May the accused be tried in absentia before the ICC?
- No, the Rome Statute applies the principle of presence.
Article 63 of the Statute states that the accused shall be
present, during the trial.
- However, if the accused, being present before the Court,
continues to disrupt the trial, the Trial Chamber may
remove the accused and shall make provision for him or
her to observe the trial and instruct counsel from outside
the courtroom, through the use of communications
technology, if required. Such measures shall be taken
only in exceptional circumstances after other reasonable
alternatives have proved inadequate, and only for such
duration as is strictly required.
Is the rule on presumption of innocence applicable to the
ICC?
- Yes, Article 66 of the Statute affirms the rule on
presumption of innocence until proved guilty before the
Court in accordance with the applicable law. The onus
(burden) is on the Prosecutor to prove the guilt of the
accused and in order to convict the accused; the Court
must be convinced of the guilt of the accused beyond
reasonable doubt.
CHAPTER 13
Peaceful Settlement of International Disputes
What is international dispute?
- A dispute in international law is a technical term which
means “a disagreement on a point of law or fact, a conflict
of legal views or interests between two persons.” A
disagreement does not amount to a dispute if its
resolution would have no practical effect on the
relationship between the parties. Ex: disagreements over
the interpretation of a treaty or about state boundaries or
about state responsibility (Bernas, 2009)
- An international dispute is an actual disagreement
between states regarding the conduct to be taken by one
of them for the protection or vindication of the interests of
the other. Where the disagreement has not yet ripened
into a full-blown conflict or the issues have not yet been
sufficiently formulated and defined, there is what is
known as a situation. A situation is, therefore, the initial
stage of a dispute. (Cruz, 2000)
What are the two kinds of international dispute?
1) Legal if it involves justiciable rights based on law or fact
susceptible of adjudication by a judicial or arbitral
tribunal. Ex. Conflict on the interpretation of a treaty or
the ascertainment of the boundaries of adjacent states;
and
2) Political if it cannot be decided by legal processes on the
basis of the substantive rules of international law
because the differences of the parties spring from
animosities in their mutual attitudes rather than from an
antagonism of legal rights. Ex. When a state, in the
exercise of its sovereign rights, enacts immigration laws
discriminating against the nationals of another state over
the latter's protest. Here, the solution cannot be found in
the courts but through diplomacy. (Ibid)
Would a suit brought by a State in behalf of one of its
nationals against another State constitute an international
legal dispute between the two States?
- Yes, upon the filing of a suit by a State in behalf of its
national, the dispute then entered upon a new phase; it
entered the domain of International Law, and became a
dispute between two States. (Sarmiento, 2007)
Is there any obligation on the part of each state party to a
dispute to settle?
- There are none except those which according to Article
33 of the UN Charter might endanger peace and security.
However, if a decision is made to settle disputes, the
obligation is to settle them by peaceful means. (Bernas,
2009)
What is the role of UN in the settlement of international
disputes?
- One of the principal purposes of the UN is to bring about
the settlement of international disputes by peaceful
means, and in conformity with the principles of justice
and International Law. (UN Charter Art.1.1)
- The UN is also based on the principle that all its members
shall settle their international disputes by peaceful means
in such a manner that international peace and security,
and justice, are not endangered. (Ibid, Art 2.3)
- Article 33 of the Charter further calls for peaceful
settlement of disputes by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful
means of their own choice. (Sarmiento, 2007)
May a member of the UN bring a dispute to the attention of
the General Assembly?
- Yes, any member of the UN may bring any dispute, or
any situation which might lead to international friction
or give rise to a dispute, any situation of the nature to
the attention of the General Assembly. It may also be
brought directly to the attention of the Security Council.
(UN Charter, Art. 35.1) (Ibid)
May a state which is not a member of the UN bring a dispute
to the attention of the Security Council or of the General
Assembly?
- Yes, a non-member state may bring to the attention of
the Security Council or of the General Assembly any
dispute provided that:
1. it is a party to the dispute; and
2. it accepts in advance, for the purposes of the
dispute, the obligations of pacific settlement
provided in the Charter. (Ibid)
What are the powers of the General Assembly with respect
to the disputes that are brought to its attention?
- They are limited to establishing fact-finding missions
and making recommendations. But although the
actions of the General Assembly may have significant
political influence, states are under no obligation to
cooperate with the fact-finding missions or to follow
recommendations. (Ibid)
What are the powers of the Security Council with respect to
the disputes that are brought to its attention?
- Under Article 33 of the UN Charter, the SC shall, when
it deems necessary, call upon the parties to settle their
disputes by peaceful means, like negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement,
resort to regional agencies or arrangements, or other
peaceful means of their own choice.
- Under Article 34, the Security Council may investigate
any dispute in order to determine whether the
continuance of the dispute or situation is likely to
endanger the maintenance of international peace and
security and if so, under Article 37, it shall decide
 whether to take appropriate action or to recommend
such terms of settlement as it may consider
appropriate.
- In making recommendations, however, the SC should
also take into consideration that legal disputes should
as a general rule be referred by the parties to the ICJ.
(UN Charter, Art 36.3) (Ibid)
How may the peaceful means of settling disputes under the
UN Charter be classified?
1. non-judicial methods- negotiation, enquiry, mediation,
conciliation
2. quasi-judicial method- arbitration,
3. judicial method
- The above means are also classified into diplomatic and
judicial methods. (Bernas, 2009)
What are the amicable means of settling international
disputes?
1) NEGOTIATION
 a process of bargaining between the two parties in
search of a solution of disputes (Sarmiento, 2007); it is
generally the first step taken in the settlement of an
international dispute which is a discussion undertaken
by the parties themselves of their respective claims and
counterclaims with a view to their just and orderly
adjustment; the conversations may be brief or
protracted, depending on the issues in contention and
perhaps also on considerations of national pride; where
the talks prosper and agreement is reached, it is
usually formalized in a treaty or, more directly effected
through the rectification of the injury caused to the
claimant state. (Cruz, 2000)
2) ENQUIRY
 a method of elucidating the points of difference and
agreement to both sides in the hope that it would
facilitate the understanding of the issues of the
disputes. The UN is empowered to call the parties
concerned to explain their position on a dispute and
may attempt to narrow their differences, reconcile their
opposing views and if necessary recommend a just and
fair solution.
Ex. In 1992-1993, US and Chile, set up an Enquiry
Commission to determine the amount of damages to be
paid to the \us by Chile for allegedly killing two persons in
Washington by Chilean intelligence officers and the dispute
was settled.(Sarmiento, 2007); the findings of the party
making the inquiry are not conclusive upon the disputing
states but they nevertheless may exert a strong moral
influence in the settlement of the conflict.(Cruz, 2000)
3) GOOD OFFICES
 or sometime referred to as “quiet diplomacy “since the
process often involves entrusting the dispute to
personalities with special qualification on whom both
parties agree. This might involve heads of State or the
Secretary-General of the UN, or their designees ;(
Sarmiento, 2007); this is usually employed when the
parties are no longer on speaking terms, or when they
have severed diplomatic relations or have actually
commenced hostilities.
 Ex. The Russo-Japanese War was terminated through
the good offices of President Theodore Roosevelt of
the US who succeeded in bringing the parties together
to the conference table for the conclusion of a
negotiated peace. (Cruz, 2000)
4) MEDIATION
 like good offices, mediation is an adjunct of
negotiation, but with the mediator as an active
participant, authorized, and even expected, to
advance his own proposals and to interpret, as well as
to transmit, each party's proposals to each other.
Ex. In 1978, US President Jimmy Carter mediated between
Egypt and Israel and achieved the Camp David Agreement
in March 1979. Under the agreement, Egypt recognized
diplomatically Israel and in return Israel withdrew its troops
from Sinai Peninsula, occupied by Israel in the 1967 war;
(Sarmiento, 2007) here, the third party has more active
involvement and does not merely provide the opportunity
for the antagonists to negotiate but also actively
participates in their discussions in order to reconcile their
conflicting claims and appease their feelings of resentment;
the suggestions of the mediator are merely persuasive,
however, and may be rejected without offense by the
parties to the dispute.(Cruz, 2000)
5) CONCILIATION
 a method that combines the characteristics of both
enquiry and mediation. While mediation is ordinarily
carried out by one person, conciliation is usually
conducted by an organization (such as ASEAN or
NATO).
Ex. Malaysia, Bangladesh and Pakistan were given the task
by OIC to broker peace between Iran and Iraq war during
the 80's) (Sarmiento, 2007); the recommendations made
are not binding though unlike in mediation, the services of
the conciliator are not offered by the third party but solicited
by the parties in dispute. (Cruz, 2000)
6) ARBITRATION
 it is a quasi-judicial method of settlement of disputes.
Here, the parties cross a line between diplomatic
methods of settling disputes and adjudication. The
contrast is sharpened by the fact that an arbitral award
is a binding decision. In choosing arbitration, the
parties to a dispute invite another entity to resolve it for
them. But arbitration allows the parties to constitute
and to operate their own court. Thus, it has attracted
States in disputes since they can select individuals as
arbitrators in whom they have confidence and thus can
at least influence the procedure that will be employed
to resolve their conflict. (Sarmiento, 2007).
What are the advantages and disadvantages of arbitration
as a method of settlement of disputes?
Advantages:
a) it is more conclusive than the other forms of non-
judicial dispute settlement because the decisions of the
arbitral panels are binding upon the parties;
b) the disputing parties retain greater control in the
arbitration process because they appoint the
arbitrators;
c) the parties may designate the procedures and the
laws to be applied;
d) arbitration is less formal and less contentious than
adjudication; and
e) both the arbitration proceedings and decisions can
be kept confidential, a great advantage in disputes
regarding sensitive matters. (Malone, 106) (Sarmiento,
2007)
Disadvantages:
 a) if the parties do not specify procedures, arbitration
may be a very cumbersome and time-consuming
process;
b) arbitration panels do not have the authority of courts
to conduct discovery or subpoena witnesses; and
c) the parties themselves pay for the entire cost of the
arbitration. (Ibid) (Ibid)
Is there an obligation to arbitrate?
o There is no International Law requirement or obligation
to arbitrate, unless the parties to a dispute previously
consented to submit to arbitration through an arbitral
clause or arbitration convention. (Ibid)
What is a compromise d 'arbitrage?
o It is an agreement expressing the consent of the parties
to the dispute to submit to arbitration and outlining the
constitution of the arbitral panel, the rules of procedure,
the issues to be decided and the binding nature of the
arbitral decision. (Malone, 107) (Ibid)
What are the three types of arbitral agreements?
a) an arbitration clause that is incorporated as part of a treaty,
commonly found in commercial treaties.
b) treaties whose sole function is to establish methods for the
arbitration of disputes
Ex. The Hague Convention for the Pacific Settlement of
Disputes
c) ad-hoc arbitral agreements
Ex. The agreement for the settlement of claims between the
US and Iran (1981) (Bernas, 2009)
May arbitral decisions be challenged?
The four most commonly accepted bases of challenge are:
a) that the arbitral body exceeded its powers;
b) that there was corruption on the part of a member of the
body;
c) that there was failure to state the reasons for the awards or
a serious departure from a fundamental rule of procedure;
d) that the undertaking to arbitrate or the compromis is a
nullity. (Ibid)
May domestic courts refuse to give recognition to awards
given by foreign arbitral tribunals?
o Yes, provided that the grounds for refusal are among
those found in the UN Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (The New
York Convention) adopted in June 10, 1958.(Bernas,
2009 and Sarmiento, 2007)
7) JUDICIAL SETTLEMENT
 it is a decision by a court. In the UN system, the ICJ is
an integral part of the UN, and the court, with seat at
The Hague (The Netherlands), decides inter-states
disputes. States must agree to refer to the Court for
decision. However there is reluctance of states to refer
disputes to the Court. (Sarmiento, 2007)
Does being a party to the Statute of the ICJ mean
acceptance of the jurisdiction of the Court?
- No. It simply means that the state may accept the
jurisdiction of the court.
- The Statute opens the court's doors to member states
and only states may be parties in the court. (Bernas,
2009)
- However, a non-member may become a party on
conditions to be determined in each case by the
General Assembly upon the recommendation of the
Security Council. (ICJ Statute Art. 93.2)
What is the cardinal rule in international courts?
o States cannot be compelled to submit disputes to
international adjudication unless they have consented
to it either before a dispute has arisen or thereafter.
o States are also free to limit their acceptance to certain
types of disputes and to attach various conditions or
reservations to their acceptance. (Ibid)
What are the similarities between arbitration and judicial
settlement?
a) nature of the proceedings;
b) binding character of the decision
c) the disputes submitted for adjudication are legal rather
than political. (Cruz, 2000)
How do they differ?
The two methods differ in the following points:
a) the judicial tribunal is, generally, a pre-existing and
permanent body whereas the arbitral tribunal is an ad hoc
body created and filled by the parties to the dispute
themselves.
b) Jurisdiction in judicial settlement is usually compulsory
whereas submission to arbitration is voluntary.
c) the law applied by the tribunal in judicial settlement is
independent of the will of the parties but may be limited by
them in arbitration proceedings. (Ibid)
International Court of Justice
What is the ICJ?
o It is the UN's principal judicial organ. It succeeded the
Permanent Court of International Court of Justice
established by the League of Nations. It came into
being in 1945 through the Statute of the Court. All
members are ipso facto parties to the Statute of the
ICJ. (Ibid)
What is its composition?
o ICJ is composed of fifteen members [Statute of the ICJ,
Art. 3(1)] who are elected by absolute majority vote in
the General Assembly and the Security Council [Ibid,
Art.4, 10(1)].
o The judges must be of high moral character and
possess the qualifications required in their respective
countries for appointment to their highest judicial
offices or are jurisconsults of recognized competence
in international law. (Ibid, Art. 2)
o No two of them may be nationals of the same state
[Ibid, Art 3(1)], and in the event that more than one
national of the same state obtain the required
majorities, only the eldest shall be considered elected.
[UN Charter, Art. 10(1)].
o The election of the judges should assure the
representation in the Court of the main forms of
civilization and the principal legal systems of the world.
(Ibid, Art. 9) (Cruz, 2000)
What is the term of the members of the Court?
o They have a term of nine years and may be re-elected.
o The term of the original members were staggered in
such a way as to provide for the election of one-third of
 the membership at three-year intervals.(UN Charter,
Art. 13)
o No judge can be removed unless, in the unanimous
opinion of the other members, he has ceased to fulfil
the required conditions. [Ibid, Art. 18(1)]
o The Court shall elect its President and Vice-President,
who shall serve for three years and may be re-
elected.[Ibid, Art. 21(1)]
How shall the Court hold its sessions?
o It shall remain permanently in session, at the Hague or
elsewhere, except during the judicial vacations [Ibid,
Arts 22(1), 23(1)],
o and may meet either en banc [Ibid, Art 25(1)] or in
chambers composed of three or more judges, to deal
with particular categories of cases such as those
relating to labor, transit and communications [Ibid,
Art 26(1)].
o All questions are decided by a majority of the judges
present [Ibid, Art 55(1)], the quorum being nine when
the full Court is sitting [Ibid, Art.25 (3)].
What are the functions of the Court?
o The functions of the Court are to decide contentious
cases and to render advisory opinions (UN Charter,
Chapter II, IV). (Cruz, 2000)
What is the jurisdiction of the ICJ?
o Its jurisdiction comprises all cases which the parties
refer to it and all matters specially provided for in the
Charter of the UN or in treaties and conventions in
force. [ICJ Statute, Article 36(1)](Sarmiento, 2007)
Give two limitations on the jurisdiction of the ICJ under its
Statute.
a) only states may be parties in contentious cases
before the Court (ICJ Statute,. 34) and
b) the consent of the states is needed for the court to
acquire jurisdiction (Ibid, 36) (Ibid)
When is the Court competent to entertain a dispute between
states?
- Only if the states concerned have accepted its jurisdiction in
one or more of the following ways:
a) by the conclusion between them of a special
agreement (Compromis) to submit the dispute to the
Court [ICJ Statute, Art 36(1)]
b) by virtue of a jurisdictional clause, i.e. typically, when
they are parties to a treaty containing a provision
whereby in the event of a disagreement over its
interpretation or application, one of them may refer the
dispute to the Court (Ibid)
c) through the reciprocal effect of declarations made by
them under the Statute whereby each has accepted the
jurisdiction the jurisdiction of the Court as compulsory
in the event of a dispute with another State having
made a similar declaration. [Ibid, Art. 36(2)]
- In cases of doubt as to whether the Court has jurisdiction, it is
the Court itself which decides. (Sarmiento, 2007)
What is the “compulsory jurisdiction” of the Court under
the “optional jurisdiction” clause?
o The optional system is operative only for states that “at
any time declare that they recognize as compulsory
ipso facto and without special agreement, in relation to
any other state accepting the same obligation, the
jurisdiction of the Court in all legal disputes concerning:
a) the interpretation of a treaty;
b) any question of international law; the existence
of any fact which, if established, would constitute a
breach of an international obligation.” [ICJ Statute,
Art. 36(2)] (Bernas, 2009)
o The declaration in the optional system may be made
unconditionally or on condition of reciprocity on the part
of several or certain states, or for a certain time.
o They shall be deposited with the Secretary-General of
the UN, who shall transmit copies thereof to the parties
to the Statute and to the Registrar of the Court. [Ibid,
Arts 3,4 (Sarmiento, 2007)
What is the Doctrine of Prorogated or Extended Jurisdiction
of the ICJ?
o Under this doctrine, the manifestation of consent to
jurisdiction of the Court may be made even after a case
is filed, but until such consent to jurisdiction is made,
the case cannot be entered in the General List
(docket of the Court). (Ibid)
What then is Forum Prorogatum?
o Otherwise known as the “prorogated” jurisdiction, it is
the jurisdiction of the ICJ that is based that is based
upon the consent of the defendant State that is given
after the initiation of the proceedings.
o The procedure for prorogated jurisdiction is found
in Article 38(5) of the ICJ Rules of Court
which in essence mandates that unless and until the
defendant State gives its consent, the application
though transmitted to that State, shall not be entered in
the General List, nor any action be taken in the
proceedings. (Ibid)
What is the legal effect of decisions of the ICJ in
contentious cases?
o Each member of the UN undertakes to comply with the
decision of the International Court of Justice in any
case to which it is a party. [UN Charter, Art 98(1)] .
o However, the decision of the Court has no binding force
except between the parties and in respect of that
particular case. (ICJ Statute, Art. 59) (Ibid)
Is the ICJ bound by the Doctrine of Stare Decisis?
o No. While Article 38 of the Statute of the ICJ provides
that the Court shall apply judicial decisions as
subsidiary means for the determination of rules of law
in deciding such disputes as are submitted to it, the
same, however, is subject to Article 59 which states
that “the decision of the Court has no binding force
except between the parties and in respect of that
particular case.”
o Nonetheless, the Court does look to prior holdings as
being highly persuasive. (Ibid)
What is the remedy in case a party fails to comply with the
judgment of the Court?
o If any party to a case fails to perform the obligations
incumbent upon it under a judgment rendered by the
Court, the other party may have recourse to the
Security Council, which may, if it deems necessary,
make recommendations or decide upon measures to
be taken to give effect to the judgment. (UN Charter,
Art 94) (Ibid)
Is it mandatory for UN members to submit their disputes or
differences for resolution of the ICJ?
o No, nothing in the Charter shall prevent Members of the
UN from entrusting the solution of their differences to
other tribunals by virtue of agreements already in
 existence or which may be concluded in the future. (UN
Charter, Art. 95) (Ibid)
What are the provisional measures of the ICJ?
o Article 41 of the ICJ Statute provides that the Court
shall have the power to indicate, if it considers that
circumstances so require, any provisional measures
which ought to be taken to preserve the respective
rights of either party. Pending the final decision, notice
of the measures suggested shall forthwith be given to
the parties and to the Security Council.
Is intervention allowed before the ICJ?
o Article 62 of the Statute provides that should a state
consider that it has an interest of a legal nature which
may be affected by the decision in the case; it may
submit a request to the Court to be permitted to
intervene.
o It shall be for the Court to decide upon this request.
o While Article 63 mandates that whenever the
construction of a convention to which states other than
those concerned in the case are parties is in question,
the Registrar shall notify all such states. Every states
notified has the right to intervene in the proceedings;
but if it uses this right, the construction given by the
judgment will be equally binding upon it.
Is revision of the ICJ judgment allowed?
- An application for revision of a judgment may be made
only when it is based upon the discovery of some fact
of such a nature as to be a decisive factor, which fact
was, when the judgment was given, unknown to the
Court and also to the party claiming revision, always
provided that such ignorance was not due to
negligence.
- The proceedings for revision shall be opened by a
judgment of the Court expressly recording the
existence of the new fact, recognizing that it has such
a character as to lay the case open to revision, and
declaring the application admissible on this ground.
- The Court may require previous compliance with the
terms of the judgment before it admits proceedings in
revision.
- The application for revision must be made at latest
within six months of the discovery of the new
fact.
- No application for revision may be made after the lapse
of ten years from the date of the judgment. (ICJ Statute,
Article 61)
What are the other international courts?
o The Court of Justice of the European Communities
- It is also called the European Court of Justice which is
the Supreme Court of the European Union and has its
seat in Luxembourg. Natural or legal person may bring
action before the Court if he is the addressee of an act
of a Community institution, or he is directly and
individually concerned by a legal measure taken by one
of the Community institutions.
- In addition, a reference for a preliminary ruling also
gives citizens the possibility of access to the Court of
Justice by means of questions put by the national
courts in the context of cases brought under national
law.
- The primary function of the Court of Justice is to
examine the legality of Community acts and to ensure,
in particular by examining references for a preliminary
ruling, that Community law is interpreted and applied
uniformly. It also applies Community law and resolves
disputes between Community institutions or between
those institutions and the Member States (or even
between Member States themselves).
o The Benelux Court of Justice
- It was established by Belgium, the Netherlands and
Luxembourg and is modelled after the European Court
of Justice that began its activities in 1974.
- Its main function is to promote the uniform
interpretation of common legal rules for which it has
become competent.
- When a national judge feels that a rule of Benelux law
is unclear in the case at hand, the court in question has
the possibility and sometimes the obligation to refer to
the Benelux Court of Justice for a preliminary ruling.
The question referred to for a preliminary ruling is the
starting point for proceedings before the Benelux Court,
in which the views of the litigating parties, the Ministers
of Justice and the Benelux public prosecution authority
can be expressed. Finally, the Court delivers a binding
judgment laying down the interpretation of the rule of
law.
o The EFTA Court of Justice
- It is the Court of the EFTA States parties to the
European Economic Area Agreement (EEA) which
include Iceland, Liechtenstein and Norway.
- It has its seat in Luxembourg since 1996. The principal
jurisdiction of the Court is on matters involving
interpretation of the law of the EEA, disputes between
the contracting parties, and between the EFTA
Surveillance Authority and the addressee of a decision
of the authority or a person directly and individually
concerned by such a decision.
- Natural or legal person may bring an action if he is the
addressee of a decision of the EFTA Surveillance
Authority, or he is directly and individually concerned
by such a decision.
- A reference for an advisory opinion also gives
citizens the possibility of access to the EFTA Court by
means of questions put by national courts in the context
of cases brought under national law.
o The European Court of Human Rights
- Known as the “Strasbourg Court”, it was established in
November 1998 pursuant to the entry into force of
Protocol No. 11 to the European Convention for the
Protection of Human Rights (1950) establishing a
single court sitting fulltime and replacing the European
Commission of Human Rights (1954) and the
European Court of Human Rights (1959).
- It has its seat in Strasbourg, France. Its primary
function is to ensure compliance by the High
Contracting Parties with their commitments arising
from the European Convention for the Protection of
Human Rights.
- The Court hears and decides complaints of human
rights violations allegedly committed by States Parties,
and brought to the Court either by other States Parties
or by individual subject to the jurisdiction of a State
Party.
- Any contracting state (inter-State application) or any
individual claiming to be the victim of a breach of the
Convention (individual application) may make an
application directly to the Court alleging a violation by
 a Contracting State of a right guaranteed by the
Convention.
- An application may be made to the Court by any natural
person, non-governmental organization or group of
individuals claiming to be the victim of a violation by
one of the Contracting Parties of a right guaranteed by
the Convention for the Protection of Human Rights or
its protocols. The Court may deal with the matter only
after all domestic remedies have been exhausted and
within six months of the final national decision. The
Court will declare an individual application inadmissible
if it is anonymous or substantially the same as a matter
that has already been examined by the Court, or has
already been submitted to another procedure of
international investigation or settlement, or if the Court
considers it to be contrary to the provisions of the
Convention or its protocols, or clearly unfounded or
abusive. (Sarmiento, 2007)

8.) ACTION BY REGIONAL ORGANIZATIONS – this may be

resorted to by the parties on their own volition or taken by the
body itself at its own instance if allowed by agreement of the
members. One of these regional organizations is the ASEAN.