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II

2B

PUBLIC
INTERNATIONAL
LAW

THE SUBJECTS OF INTERNATIONAL LAW


CLASS DIGEST OF UST-2B (2019-2020)
SUBMITTED APRIL 20, 2020
UNIVERSITY OF SANTO TOMAS - FACULTY OF CIVIL LAW
2B (2019-2020) ATTY. ALLAN B. GEPTY
CLASS DIGEST FOR
PUBLIC INTERNATIONAL LAW

THE HOLY SEE v. THE HON. ERIBERTO U. ROSARIO, JR.,


G.R. No. 101949 EN BANC December 1, 1994

FACTS: Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome,
Italy, and is represented in the Philippines by the Papal Nuncio. Private respondent, Starbright
Sales Enterprises, Inc., is a domestic corporation engaged in the real estate business.

The Holy See owned a parcel of land consisting of 6,000 sq.m in Paranaque. The said lot is
contiguous with two lots owned by Philippine Realty Corporation (PRC). The three lots were sold
to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr, acting as agent of the Holy See and PRC.
Licup assigned his right to Starbright Sales Enterproses, Inc (Starbright).

A dispute arose when the squatters refused to vacate the lots sold to Starbright and parties were
confused as to who has the responsibility of evicting and clearing the land of squatters. One of the
three lots sold to Starbright was sold to Tropicana Properties and Development Corporation
(Tropicana).

Starbright filed a complaint for annulment of the sale of the three parcels of land, and specific
performance and damages against the Holy See, Msgr. Cirilos, Jr., PRC and Tropicana. The Holy
See and Masgr. Cirilos, Jr. separately moved to dismiss the complaint – Holy See for lack of
jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos, Jr. for being an improper
party. Trial Court issued an order denying, among others, Holy See’s motion to dismiss after
finding that petitioner “shed off its sovereign immunity by entering into the business contract in
question.”

ISSUE: WON the trial court has jurisdiction over the Holy See, being a foreign state enjoying
sovereign immunity.

RULING: No. Ordinarily, the procedure would be to remand the case and order the trial court to
conduct a hearing to establish the facts alleged by petitioner in its motion. In view of said
certification, such procedure would however be pointless and unduly circuitous.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The
Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the
Philippine government since 1957. This appears to be the universal practice in international
relations.

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally
accepted principles of International Law. Even without this affirmation, such principles of
International Law are deemed incorporated as part of the law of the land as a condition and
consequence of our admission in the society of nations.

There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its consent,

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be made a respondent in the courts of another sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure
imperii of a state, but not with regard to private acts or acts jure gestionis.

The restrictive theory, which is intended to be a solution to the host of problems involving the
issue of sovereign immunity, has created problems of its own. Legal treatises and the decisions in
countries which follow the restrictive theory have difficulty in characterizing whether a contract
of a sovereign state with a private party is an act jure gestionis or an act jure imperii.

This Court has considered the following transactions by a foreign state with private parties as acts
jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military
officers; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station;
and (3) the change of employment status of base employees.

On the other hand, this Court has considered the following transactions by a foreign state with
private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of
three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air
Station in Baguio City, to cater to American servicemen and the general public; and (2) the bidding
for the operation of barber shops in Clark Air Base in Angeles City. The operation of the
restaurants and other facilities open to the general public is undoubtedly for profit as a commercial
and not a governmental activity. By entering into the employment contract with the cook in the
discharge of its proprietary function, the United States government impliedly divested itself of its
sovereign immunity from suit.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the envoy holds on behalf of the
sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy,
with all the more reason should immunity be recognized as regards the sovereign itself, which in
this case is the Holy See.

Private respondent is not left without any legal remedy for the redress of its grievances. Under
both Public International Law and Transnational Law, a person who feels aggrieved by the acts of
a foreign sovereign can ask his own government to espouse his cause through diplomatic channels.

BARCELONA TRACTION, LIGHT, AND POWER COMPANY, LIMITED (1970)

FACTS: The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911
in Toronto (Canada), where it has its head office. For the purpose of creating and developing an
electric power production and distribution system in Catalonia (Spain) it formed a number of
subsidiary companies, of which some had their registered offices in Canada and the others in Spain.
In 1936 the subsidiary companies supplied the major part of Catalonia’s electricity requirements.
According to the Belgian Government some years after the first world war Barcelona Traction’s

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share capital came to be very largely held by Belgian nationals but this contention was denied by
the Spanish Government.

Barcelona Traction issued several series of bonds, principally in sterling. The sterling bonds were
serviced out of transfers to Barcelona Traction effected by the subsidiary companies operating in
Spain. In 1936 the servicing of the Barcelona traction bonds was suspended on account of the
Spanish civil war. After that war, the Spanish exchange control authorities refused to authorize the
transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds.
Subsequently, when the Belgian Government complained of this, the Spanish Government stated
that the transfers could not be authorized unless it, were shown that the foreign currency was to be
used to repay debts arising from the genuine importation of foreign capital into Spain, and that this
had not been established.

In 1948 three Spanish holders of recently acquired Barcelona Traction sterling bonds petitioned
that court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt, on
account of failure to pay the interest on the bonds. On 12 February 1948, a judgment was given
declaring the company bankrupt and ordering the seizure of the assets of Barcelona Traction and
of two of its subsidiary companies.

Pursuant to this judgment, the principal management personnel of the two companies were
dismissed and Spanish directors appointed. Shortly afterward, these measures were extended to
the other subsidiary companies. New shares of the subsidiary companies were created, which were
sold by public auction in 1952 to a newly-formed company, Fuerzas Electricas ~de Cataluina, S.A.
(Fecsa), which thereupon acquired complete control of the undertaking in Spain.

Proceedings were brought without success in the Spanish courts by various companies or persons.
According to the Spanish Government, 2,736 orders were made in the case and 494 judgments
given by lower and 37 by higher courts before it was submitted to the International Court of Justice.
The Court found that in 1948 Barcelona Traction, which had not received a judicial notice of the
bankruptcy proceedings, and was not represented before the Reus court, took no proceedings in
the Spanish courts until 18th June and thus did not enter a plea of opposition against the bankruptcy
judgment within the time-limit of eight days from the date of publication of the judgment laid
down in Spanish legislation. The Belgian Government contends, however, that the notification and
publication did not comply with the relevant legal requirements and that the eight-day time-limit
never began to run.

Representations were made to the Spanish Government by the British, Canadian, United States
and Belgian Governments as from 19481 or 1949. The interposition of the Canadian Government
ceased entirely in 1955.

In the first phase (24th July 1964) of the judgment, the Spanish Government raised four
Preliminary Objections and the Court rejected the first preliminary objection and the secondary
objection and added the third and fourth objections to the merits.

In the second phase (5th February 1970) of the judgment, the Court found that Belgium lacked jus
standi to exercise diplomatic protection of shareholders in a Canadian company with respect to

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measures taken against that company in Spain. In its judgment in the second phase of the case, the
Court rejected Belgium’s claim by fifteen votes to one.
ISSUE: Whether Belgium lacked jus standi to exercise diplomatic protection of Belgian
shareholder interest in the Canadian Barcelona Traction company which was allegedly damaged
by actions taken by the Spanish government

RULING: DISMISSED. Belgium lacked jus standi to exercise diplomatic protection and the
shareholders seeking compensation was not given diplomatic immunity.

In the field of diplomatic protection, international law was in continuous evolution and was called
upon to recognize institutions of municipal law. In municipal law, the concept of the company was
founded on a firm distinction between the rights of the company and those of the shareholder. Only
the company, which was endowed with legal personality, could take action in respect of matters
that were of a corporate character.

A wrong done to the company frequently caused prejudice to its shareholders, but this did not
imply that both were entitled to claim compensation. Whenever a shareholder’s interests were
harmed by an act done to the company, it was to the latter that he had to look to institute appropriate
action. An act infringing only the company’s rights did not involve responsibility towards the
shareholders, even if their interests were affected. International law had to refer to those rules
generally accepted by municipal legal systems. An injury to the shareholder’s interests resulting
from an injury to the rights of the company was insufficient to found a claim.

Where it was a question of an unlawful act committed against a company representing foreign
capital, the general rule of international law authorized the national State of the company alone to
exercise diplomatic protection for the purpose of seeking redress. No rule of international law
expressly conferred such a right on the shareholder’s national State.

The Court considered whether there might not be, in the present case, special circumstances for
which the general rule might not take effect.

Two situations need to be studied:


(a) the case of the company having ceased to exist, and
(b) the case of the protecting State of the company lacking the capacity to take action.
As regards the first of these possibilities, the Court observed that whilst Barcelona Traction had
lost all its assets in Spain and been placed in receivership in Canada, it could not be contended that
the corporate entity of the company had ceased to exist or that it had lost its capacity to take
corporate action.

So far as the second possibility was concerned, it was not disputed that the company had been
incorporated in Canada and had its registered office in that country, and its Canadian nationality
had received general recognition. The Canadian Government had exercised the protection of
Barcelona Traction for a number of years. If at a certain point the Canadian Government ceased to
act on behalf of Barcelona Traction, it nonetheless retained its capacity to do so, which the Spanish
Government had not questioned. Whatever the reasons for the Canadian Government’s change of

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attitude, that fact could not constitute a justification for the exercise of diplomatic protection by
another government.

It had been maintained that a State could make a claim when investments by its nationals abroad,
such investments being part of a State’s national economic resources, were prejudicially affected
in violation of the right of the State itself to have its nationals enjoy a certain treatment. But, in the
present state of affairs, such a right could only result from a treaty or special agreement. And no
treaty or special agreement of such a kind was in force between Belgium and Spain.

If reasons of equity are considered, a State should be able to take up the protection of its nationals,
shareholders in a company which had been the victim of a violation of international law. The Court
considered that the adoption of the theory of diplomatic protection of shareholders as such would
open the door to competing claims on the part of different States, which could create an atmosphere
of insecurity in international economic relations. In the particular circumstances of the present
case, where the company’s national State was able to act, the Court was not of the opinion that jus
standi was conferred on the Belgian Government by considerations of equity.

The Court took cognizance of the great amount of documentary and other evidence submitted by
the Parties and fully appreciated the importance of the legal problems raised by the allegation
which was at the root of the Belgian claim and which concerned denials of justice allegedly
committed by organs of the Spanish State. However, the possession by the Belgian Government
of a right of protection was a prerequisite for the examination of such problems. Since no jus standi
before the Court had been established, it was not for the Court to pronounce upon any other aspect
of the case.

REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF THE UN


(1949) ICJ REPORTS

As a consequence of the assassination in September 1948, in Jerusalem, of Count Folke


Bernadotte, the UN Mediator in Palestine and other members of the UN Mission to Palestine, the
General Assembly asked the Court whether the UN had the capacity to bring an international claim
against the State responsible with a view to obtaining reparation for damage caused to the
Organization and to the victim. If so, in what manner the action taken by the UN could be
reconciled with such rights as might be possessed by the State of which the victim was a national.

In its Advisory Opinion of 11 April 1949, the Court held that the Organization was intended to
exercise functions and rights which could only be explained on the basis of the possession of a
large measure of international personality and the capacity to operate upon the international plane.

Although, according to the traditional rule, diplomatic protection had to be exercised by the
national State, the Organization should be regarded in international law as possessing the powers
which, even if they are not expressly stated in the Charter, are conferred upon the Organization as
being essential to the discharge of its functions. The Organization may require to entrust its agents

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with important missions in disturbed parts of the world. In such cases, it is necessary that the agents
should receive suitable support and protection.

The Court therefore found that the Organization has the capacity to bring a claim and to give it the
character of an international action for reparation for the damage that had been caused to it,
including also reparation for damage suffered by the victim or by persons entitled through him.
The risk of possible competition between the Organization and the victim’s national State could
be eliminated either by means of a general convention or by a particular agreement in any
individual case.

The question concerning reparation for injuries suffered in the service of the UN, was referred to
the Court by the General Assembly of the UN-Resolution of the General Assembly (December 3,
1948) in the following terms:
In the event of an agent of the United Nations in the performance of his duties suffering
injury in circumstances involving the responsibility of a State, has the United Nations, as
an Organization, the capacity to bring an international claim against the responsible de jure
or de facto government with a view to obtaining the reparation due in respect of the damage
caused (a) to the United Nations, (b) to the victim or to persons entitled through him?

In the event of an affirmative reply on point I (b), how is action by the United Nations to
be reconciled with such rights as may be possessed by the State of which the victim is a
national?"

With respect to questions I (a) and I (b), the Court established a distinction according to whether
the responsible State is a Member or not of the UN. The Court unanimously answered answered
question I (a)in the affirmative. On question I (b) the Court was of opinion by 11 votes against 4
that the Organization has the capacity to bring an international claim whether or not the responsible
State is a Member of the UN.

Finally, on point II, the Court was of opinion by 10 votes against 5 that when the UN as an
organization is bringing a claim for reparation for damage caused to its agent, it can only do so by
basing its claim upon a breach of obligations due to itself; respect for this rule will usually prevent
a conflict between the action of the UN and such rights as the agent's national State may possess.
This reconciliation depends upon considerations applicable to each particular case and upon
agreements to be made between the Organization and individual States.

In its Advisory Opinion, the Court begins by reciting the circumstances of the procedure. The
Request for Opinion was communicated to all States entitled to appear before the Court; they were
further informed that the Court was prepared to receive information from them. Thus, written
statements were sent by the following States: India, China, United States of America, United
Kingdom of Great Britain and Northern Ireland and France. In addition, oral statements were
presented before the Court by a representative of the Secretary-General of the UN, assisted by
counsel, and by the representatives of the Belgian, French and United Kingdom Governments.

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Then the Court makes a number of preliminary observations on the question submitted to it, then
proceeds to define certain terms in the Request for Opinion, then it analyses the contents of the
formula: "capacity to bring an international claim." This capacity certainly belongs to a State.

Does it also belong to the Organization? Does the Organization have international personality? In
answering these, the Court goes onto consider what characteristics the Charter intended to give the
Organization. The Court states that the Charter conferred upon the Organization rights and
obligations which are different from those of its Members and further stresses the important
political tasks of the Organization: maintenance of international peace and security. The Court
concludes that the Organization has a large measure of international personality and the capacity
to operate upon an international plane, although it is certainly not a super-state.

The Court then examines the very heart of the subject, whether the sum of the international rights
of the Organization comprises the right to bring an international claim to obtain reparation from a
State in respect of the damage caused by the injiury of an agent of the Organization in the course
of the performance of his duties.

On I (a), of the Request for Opinion the Court unanimously reaches the conclusion that the
Organization has the capacity to bring an international claim against a State, whether a Member or
non-member, for damage resulting from a breach by that State of its obligations towards the
Organization. The Court points out that it is not called upon to determine the precise extent of the
reparation which the Organization would be entitled to recover; the measure of the reparation
should depend upon a number of factors which the Court gives as examples.

Then the Court proceeds to examine question I (b), whether the UN, as an Organization, has the
capacity to bring an international claim with a view to obtaining the reparation due in respect of
the damage caused to the victim or to persons entitled through him. In dealing with this point the
Court analyses the question of diplomatic protection of nationals. The Court points out that only
the Organization has the capacity to present a claim in the circumstances referred to, in as much,
the basis of any international claim there must be a breach by the defendant State of an obligation
towards the Organization.

In the present case, the State of which the victim is a national could not complain of a breach of
an obligation towards itself. Here the obligation is assumed in favour of the Organization.
However, the Court admits that the analogy of the traditional rule of diplomatic protection of
nationals abroad does not in itself justify an affirmative reply. In fact, there exists no link of
nationality between the Organization and its agents. This is a new situation and it must be analysed.

Do the provisions of the Charter relating to the functions of the Organization imply that the latter
is empowered to assure its agents limited protection? These powers, which are essential to the
performance of the functions of the Organization, must be regarded as a necessary implication
arising from the Charter. In discharging its functions, the Organization may find it necessary to
entrust its agents with important missions to be performed in disturbed parts of the world. These
agents must be ensured of effective protection. It is only in this way that the agent will be able to
carry out his duties satisfactorily.The Court reaches the conclusion that the Organization has the
capacity to exercise functional protection in respect of its agents. The situation is comparatively

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simple in the case of Member States, for these have assumed various obligations towards the
Organization.

What is the situation when a claim is brought against a State which is not a Member of the
Organization? The Court is of opinion that Members of the UN created an entity possessing
objective international personality and not merely personality recognized by them alone. The Court
answers Question I (b) in affermative.

Question No. II of the General Assembly refers to the reconciliation of action by the UN with such
rights as may be possessed by the State of which the victim is a national. In other words, what is
involved is possible competition between the rights of diplomatic protection on the one hand and
functional protection on the other. The Court does not state here which of these two categories of
protection should have priority and in the case of Member States it stresses their duty to render
every assistance provided by Article 2 of the Charter. It adds that the risk of competition between
the Organization and the national State can be reduced or eliminated either by a general convention
or by agreements entered into in each particular case, and it refers further to cases that have already
arisen in which a practical solution has already been found.

Finally, the Court examines the case in which the agent bears the nationality of the defendant State.
Since the claim brought by the Organization is not based upon the nationality of the victim but
rather upon his status as an agent of the Organization, it does not matter whether or not the State
to which the claim is addressed regards him as its own national. The legal situation is not modified
thereby.

MAVROMATTIS PALESTINE CONSESSIONS CASE (GREECE V. UK)


(HILARIO) August 30, 1924 Loder, J.

FACTS: Mavromattis is a Greek national. He was awarded contracts aka consessions for public
works in Palestine, and it had two phases: supplying electric tramways, electricity, and drinking
water to the City of Jerusalem, and supplying the same things to the City of Jaffa.

Mavromattis wasn’t able to complete phase 1 in Jerusalem because of WWI (force majeure) and
he wasn’t able to complete phase 2 in Jaffa because of newly imposed Turkish legal requirements.
(note: Palestine was originally attached to Turkey).

After WWI Palestine was subjected to British rule, and so Mavromattis went back to Palestine to
enforce his contract. To his surprise, the British government granted to a certain Mr. Rutenberg a
concession for works, which appeared to overlap those granted to Mr. Mavrommatis.
And so he now seeks the protection of the Greek government.

When the British government received the application to the Permanent Court of International
Justice (PCIJ), it filed an objection to the Court’s jurisdiction.

ISSUE: Whether the PCIJ has jurisdiction over the matter– YES

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RULING:
Although the dispute is first between a private person and a State (Mavrommatis and UK),
subsequently, the Greek Government took up th e case. Hence, the dispute entered a new phase
and entered the domain of international law.

The conditions for vaild exercise of jurisdiction are: (a) that the question must constitute a dispute
between the Mandatory (like how UK is the Mandatory for Palestine) and another Member of the
League of Nations; (b) that this dispute cannot be settled by negotiation, and (c) that it relates to
the interpretation or application of the clauses of the Article 26 of the Mandate for Palestine
(Contract between UK and Palestine about their governance).

(a) is fulfilled. There exists a dispute, and Greece is a Member of the League of Nations.
Although the dispute originated in an injury to a private interest, Greece is asserting a right
of its own, namely the right to ensure that the rules of international law are respected
as regards its subjects. Moreover, once a State has taken up a case on behalf of one of
its subjects before an international tribunal, in the eyes of the latter, the State is sole
claimant.

It is an elementary principle of international law that a State is entitled to protect its subjects, when
injured by acts contrary to international law committed by another State, from whom they have
been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of
its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf,
a State is in reality asserting its own rights - its right to ensure, in the person of its subjects, respect
for the rules of international law.

(b) is also fulfilled. Negotiations don’t need to be lengthy; the fact that they were only a
continuation of the previous private negotiations is enough to justify that it can’t be settled
by negotiation, and secondly on the views of the Parties—who are doubtless in the best
position to judge as to political reasons which may prevent the settlement of a dispute by
diplomatic negotiations.

(c) is also fulfilled. Article 26 lays down that the dispute, which may be of any nature, must
relate to the interpretation or application of the clauses of the Mandate. The Mavrommatis
contracts in themselves are outside the scope of the Mandate, but because of the
overlapping of rights granted to Rutenberg and Mavrommatis, it is a dispute within this
Court’s jurisdiction.

CERTAIN EXPENSES OF THE UNITED NATIONS


1962 ICJ 151, 167-68

The question on which the Court is asked to give its opinion is whether certain expenditures
which were authorized by the General Assembly to cover the costs of the United Nations
operations in the Congo (ONUC) and of the operations in the United Nations Emergency Force in

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the Middle East (UNEF), “constitute ‘expenses if the Organization’ within the meaning of Article
17, paragraph 2, of the Charter of the United Nations.

The text of Article 17 is in part as follows:


1. The General Assembly shall consider and approve the budget of the Organization.
2. The expenses of the Organization shall be borne by the Members as apportioned by the
General Assembly.

The text of Article 17, paragraph 2, refers to “the expenses of the Organization” without any
further explicit definition of such expenses. Turning to paragraph 2 of Article 17, the Court
observes that, on its face, the term “expenses of the Organization” means all the expenses and not
just certain types of expenses which might be referred to as “regular expenses”. An examination
of other parts of the Charter shows the variety of expenses which must inevitably be included
within the “expenses of the Organization” just as much as the salaries of staff or the maintenance
of buildings.

In determining whether the actual expenditures authorized constitute “expenses of the


Organization within the meaning of Article 17, paragraph 2, of the Charter”, the Court agrees that
such expenditures must be tested by their relationship to the purposes of the United Nations in the
sense that if an expenditure were made for a purpose which is not one of the purposes of the United
Nations, it could not be considered an “expense of the Organization”.

The purposes of the United Nations are set fourth in Article I of the Charter. The first two
purposes as stated in paragraphs 1 and 2, may be summarily described as pointing to the goal of
international peace and security and friendly relations. The third purpose is the achievement of
economic, social, cultural and humanitarian goals and respect for human rights. The fourth and
last purpose is: “To be a center for harmonizing the actions of nations in the attainment of these
common ends.”

At the outset of this opinion, the Court pointed out that the text of Article 17, paragraph 2, of
the Charter could lead to the simple conclusion that “the expenses of the Organization” are the
amounts paid out to defray the costs of carrying out the purposes of the Organization. It was further
indicated that the Court would examine the resolutions authorizing the expenditures referred to in
the request for the advisory opinion in order to ascertain whether they were incurred with that end
in view. The Court has made such an examination and finds that they were so incurred. The Court
has also analyzed the principal arguments which have been advanced against the conclusion that
the expenditures in question should be considered as “expenses of the Organization within the
meaning of Article 17, paragraph 2, of the Charter of the United Nations”, and has found that these
arguments are unfounded. Consequently, the Court arrives at the conclusion that the question
submitted to it in General Assembly resolution 1731 (XVI) must be answered in the affirmative.

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MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA


(NICARAGUA v UNITED STATES OF AMERICA)

FACTS: On April 9, 1984, Nicaragua had initiated proceedings against the United States of
America in the International Court of Justice (ICJ) alleging that United States supported a
mercenary army in initiating attacks in Nicaragua for the purpose of overthrowing Sadinista, the
government of Nicaragua. It further alleged that United States likewise funded and assisted the
armed forces against Nicaragua. As a result, Nicaragua avers that United States violated the
international obligations under the general international law when it assisted and funded the armed
forces. US on the other hand protested the court’s jurisdiction and decided not to appear before the
court in the proceedings. Nonetheless, the ICJ concluded that even the US did not appear before
the court, it still did not prevent from giving its judgment regarding the case. It is also for a fact
that in the year 1983-1984, USA authorized the laying of land mines in Nicaraguan ports for the
purpose of closing several ports of Nicaragua. The court centered its attention on the termination
of the economic aid in 1981 and the US blocked Nicaragua’s loans from International financial
bodies. US on the other hand brought up their answer claiming that it is justifiable because it was
an exercise of self-defense. In addition to the defense, US also argued that ICJ had no jurisdiction
between the two states regarding the issue. Moreover, Nicaragua based its argument on its reliance
on the 1946 declaration. The defendant, US, challenged that admissibility of the application of
Nicaragua to the ICJ.

ISSUES:
1.) Whether the application of Nicaragua to the ICJ is admissible despite the fact that there are
no grounds existing to exclude application of state
2.) Whether the jurisdiction to hear dispute between two states if they accept court’s
jurisdiction is within the jurisdiction of ICJ

HELD:
1.) Yes. When there were no grounds exist to exclude application of the state, the application
to the ICJ is admissible. The grounds in which US challenged the admissibility of
Nicaragua’s application were that the latter failed because there were no indispensable
parties. ICJ can exercise jurisdiction that is concurrent with that of the security council.
The questions of jurisdiction and admissibility is based on the principle the ICJ only had
jurisdiction to parties who have agreed to be in its jurisdiction. The court used the Treaty
of Friendship in determining the jurisdiction and admissibility of the application.

2.) Yes. The jurisdiction of the court to hear dispute between two states if each state accept
the Court’s jurisdiction is within the jurisdiction of the ICJ. Nicaragua became a party to
the statute of ICJ because the 1929 declaration was made unconditionally and was valid
for an unlimited period. The intention of the statute was to maintain continuity between the
permanent Court. In other words, when Nicaragua accepted the Statute, it is deemed that
Nicaragua already gave its consent to transfer its declaration to the ICJ.

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ARMED ACTIVITIES ON THE TERRITORY OF CONGO


(DRC V. UGANDA)
2005 I.C.J. 116

FACTS:
In 1997, President Kabila came into power in the Democratic Republic of Congo (DRC),
with the help of Uganda and Rwanda. Initially, Ugandan and Rwandan forces were present in the
DRC following DRC’s invitation and consent. Then, the DRC’s relations with Uganda and
Rwanda deteriorated, and on 28 July 1998, President Kabila announced the withdrawal of the
DRC’s consent to Rwandan military presence in the DRC. On 8 August 1998, Kabila accused both
Ugandan and Rwandan forces of invading the DRC. In June 2003, Ugandan forces completely
withdrew from the DRC. DRC argued that Uganda occupied DRC territory, while Uganda argued
its presence in the DRC was justified:1) until 11 September 1998, based on DRC’s invitation; 2)
from 11 September 1998 until 10 July 1999, based on self-defense; and, 3) from July 1999 until
June 2003, based on DRC’s consent.
Uganda argued that its military presence and activities in the DRC were, for most part,
based on an invitation by the DRC and was authorized by/ consented to by the DRC. The Court
held that consent provided by one State to another is limited both in duration (i.e. until the consent
is withdrawn) and scope (i.e. to rely on consent, foreign forces must act within the limits specified
in the invitation).
The DRC asked the Court to decide that, starting from 02 August 1998, Uganda had
engaged in “armed aggression” in the DRC. It argued 1) that Uganda (a) engaged in military and
paramilitary activities against the DRC, (b) occupied DRC territory, and (c) provided military,
logistic, financial and economic support to armed groups in the DRC who operated against the
government; 2) that Uganda committed and failed to prevent violations of human rights and
humanitarian law; and 3) that Uganda engaged in and failed to prevent the illegal exploitation of
Congolese natural resources. The DRC sought as remedies, for example, the cessation of
internationally wrongful acts, reparation, and guarantees of non-repetition.

ISSUES:
1. Whether or not DRC’s consent was withdrawn by 8 August 1998.
2. Whether or not irrespective of the withdrawal, some Ugandan military activities fell outside
the scope of authorization provided by the DRC.

RULING:
1. YES. Prior to August 1998 the DRC did not object to Ugandan military presence and activities
in its eastern border. Parties disagreed as to when consent was withdrawn.
a) For the DRC: Consent withdrawn on 28 June 1998, when the DRC issued a statement
terminating “…with effect from this Monday 27 July 1998, the Rwandan military
presence… This marks the end of the presence of all foreign military forces in the
Congo.” The DRC argued that even if Uganda was not mentioned by name, the final
phrase meant that consent was withdrawn for Ugandan troops.

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b) For Uganda: Consent was not withdrawn on 27 June 1998 because:


1) the DRC statement only referred to Rwanda; and
2) any withdrawal of consent required a formal denunciation of the 1998 Security
Protocol.
In the 1998 Security Protocol, the DRC and Uganda agreed to co-operate to ensure
security and peace along the common border.

The ICJ could not conclude if the 28 July 1998 statement withdrew consent also for Ugandan
presence in the DRC (the statement mentions only Rwandan troops).

The Security Protocol had not provided the legal basis (authorization/ consent) for the
presence of Ugandan troops, but reaffirmed authorization/ consent. The source of
authorization/consent antedated the Protocol. Thus, the withdrawal of consent did not require a
formal denunciation of the 1998 Security Protocol (para 47).
Thus, the DRC could withdraw its consent at any time, without any formalities being
necessary.

The Court concluded that prior to August 1998 the DRC did not object to Ugandan military
presence and activities in its eastern border and had, sometimes, provided specific
authorization for the movement of troops into the DRC.

However, consent was certainly withdrawn by 8 August 1998 when Kabila accused
Uganda of invading the DRC.

Uganda argued that between 1999 to 2003, the DRC, once again, consented to Ugandan
presence. The ICJ held that the four agreements in 1999 and 2000 relied on by Uganda did not
alter the legal status of its presence. These agreements stipulated arrangements made to progress
towards withdrawal of foreign troops. In accepting these modalities, the DRC neither consented to
troop presence nor recognized “…the situation on the ground as legal” either before the agreement
or in the period that would pass until the fulfilment of its terms. This status was not changed even
when another agreement authorized the temporary presence of Uganda troops in the border region
of Ruwenzori Mountains in the DRC, until appropriate security mechanisms had been put in place.
The ICJ held that “this reflects the acknowledgment by both Parties of Uganda’s security needs
in the area, without pronouncing upon the legality of prior Ugandan military actions there or
elsewhere.”

2. YES. The ICJ held that the consent/ authorization provided by the DRC was not an “open-
ended consent” and was restricted in terms of “geographic location and objectives.”

Initially, the DRC had accepted that Uganda could act, or assist in acting against the rebels
in the eastern border and to prevent them from acting across the common border.

Thus, Ugandan military operations 1) against rebels and 2) in eastern border towns were
covered under the invitation. However, the nature and extent of those Ugandan military
operations in August 1998, in the three border towns that resulted in Uganda taking control of

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these towns and their airports (paragraph 110) were “quite outside any mutual understanding
between the Parties as to Uganda’s presence on Congolese territory…”.
Thus, even if the DRC had not withdrawn consent, these activities will fall outside the
authorization provided by the DRC.

SAUDI ARABIA ET. AL. V. NELSON ET. UX.


MARCH 23, 1993

FACTS: The petitioner, Kingdom of Saudi Arabia, owns and operates petitioner King Faisal
Specialist Hospital in Riyadh, as well as petitioner Royspec Purchasing Services in the United
States. Hospital Corporation of America, Ltd. (HCA) is an independent corporation existing under
the laws of the Cayman Islands. It recruits American for employment at the hospital under an
agreement with Saudi Arabia in 1973. HCA placed an advertisement in a trade periodical seeking
applications for a position as a monitoring systems engineer at the hospital. The advertisement
drew the attention of Scott Nelson in September 1983, while he was in the United States. Upon
compliance with the processing requirements, Nelson signed an employment contract with the
hospital. HCA identified Royspec as the point of contact in the United States for family members
who might wish to reach Nelson in an emergency. In December 1983, Nelson began working for
the hospital. However, in March 1984, Nelson discovered safety defects in the hospital’s oxygen
and nitrous oxide lines that posed fire hazards and otherwise endangered patients’ lives. He
repeatedly advised hospitals officials of the safety defects however he was instructed to ignore the
problems.

In 27 September 1984, Nelson was arrested by agents of the Saudi Government. He was
transported to a jail cell, in which the “shackled, tortured and beat” him. He was kept there for four
days without food. Although he did not understand Arabic, government agents forced him to sign
a statement written in that language, the content of which he did not know. Two days later,
government agents transferred Nelson to the Al Sijan Prison to await on trial on unknown charges.
At the prison, he was confined in an overcrowded cell area infested with rats, where he had to fight
other prisoners for food and from which he was taken only once a week for fresh air and exercise.
Saudi Government failed to advise Nelson’s family of his whereabouts, though a Saudi official
eventually told Nelson’s wife, Vivian Nelson, that he could arrange for her husband’s release if
she provided sexual favors.

United States Embassy visited twice during his detention however they concluded that his
allegations of Saudi mistreatment were not credible and made no protest to Saudi authorities. It
was only at the personal request of a United States Senator that Saudi Government released Nelson,
39 days after his arrest. 7 days later, after failing to convince him to return to work at the hospital,
Saudi Government allowed Nelson to leave the country.

Nelson and his wife filed this action against Kingdom of Saudi Arabia in the United States District
for the Southern District of Florida seeking damages for personal injury. The Nelsons’ complaint
sets out 16 causes of action, which fall into 3 categories. It alleged that petitioners committed
various intentional torts, negligently failing to warn Nelson of otherwise undisclosed dangers of

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his employment, and that Vivian Nelson sustained derivative injury resulting from petitioners’
actions. The District Court dismissed the petition for lack of subject-matter jurisdiction under the
Foreign Sovereign Immunities Act of 1976. It rejected the Nelsons’ argument that jurisdiction
existed, under the first clause of § 1605(a)(2), because the action was one “based upon a
commercial activity” that petitioners had “carried on in the United States.” Likewise, the court
concluded that Royspec’s commercial activity in the United States had no nexus with the personal
injuries alleged in the complaint. The Court of Appeals reversed the decision. It concluded that
Nelson’s recruitment and hiring were commercial activities of Saudi Arabia and the hospital,
carried on in the United States for purposes of the Act, id., at 1533, and that the Nelsons’ action
was “based upon” these activities within the meaning of the statute, id., at 1533 – 1536.

ISSUE: Whether there is a sufficient nexus between those commercial activities and the wrongful
acts that had allegedly injured the Nelsons.

RULING: NO, there was no sufficient nexus between those commercial activities and the
wrongful acts that had allegedly injured the Nelsons.

The Foreign Sovereign Immunities Act provides that a foreign state is presumptively immune from
the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks
subject-matter jurisdiction over a claim against a foreign state. The only exception that could apply
is provided by clause of § 1605(a)(2) of the Act. The clause states that a foreign state shall not be
immune from the jurisdiction of United States courts in any case “in which the action is based
upon a commercial activity carried on in the United States by a foreign state.

In order to have jurisdiction over the case, Nelsons’ action must be based upon some commercial
activity by petitioners that had no substantial contact with the United States within the meaning of
the Act. In this case, Nelsons have alleged that petitioners recruited him to work at the hospital,
signed an employment contract with him, and employed him. However, these activities are not the
basis for the suit. The Nelsons have not alleged breach of contract but personal injuries caused by
petitioners’ intentional wrongs and by petitioners’ negligent failure to warn Nelson that they might
commit those wrongs. Those torts, and not the arguably commercial activities that preceded their
commission, form the basis for the Nelsons’ suit. Moreover, the tortious conduct itself fails to
qualify as commercial activity within the meaning of the Act.

The meaning of “commercial” for purposes of the Act must be the meaning Congress understood
the restrictive theory to require at the time it passed the statute. Under the restrictive theory of
foreign sovereign immunity, a state is immune from the jurisdiction of foreign courts as to its
sovereign or public acts but not as to those that are private or commercial in character. In Republic
of Argentina v. Weltover, Inc., the Court explained that a state engages in commercial activity
under the restrictive theory where it exercises only those powers than can also be exercised by
private citizens as distinct from those powers peculiar to sovereigns. Unlike Argentina’s activities
that we considered in Weltover, the intentional conduct alleged in this case could not qualify as
commercial under the restrictive theory. Therefore, the Nelsons’ action is not based upon
commercial activity as provided by clause of § 1605(a)(2) of the Act. The judgment of the Court
of Appeals is accordingly reversed.

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TINOCO CLAIMS ARBITRATION


(GREAT BRITAIN V. COSTA RICA)

FACTS: In January, 1917, the Government of Costa Rica, under President Alfredo Gonzalez, was
overthrown by Frederico Tinoco, the Secretary of War. Gonzalez fled. Tinoco assumed power,
called an election, and established a new constitution in June, 1917 and lasted for two years.

The Government of the United States desires to set forth in an emphatic and distinct manner its
present position in regard to the actual situation in Costa Rica which is that it will not give
recognition or support to any government which may be established unless it is clearly proven that
it is elected by legal and constitutional means. Probably because of the leadership of the United
States in respect to a matter of this kind, her then Allies in the war (including Great Britain),
declined to recognize the Tinoco government.

During its time in power, the Tinoco regime entered into several contracts (including an oil
concession) with the British government. A grant by the Tinoco government in 1918 of the right
to explore for an exploit oil deposits in Costa Rica.

When the regime fell in 1919, Great Britain brought suit against Costa Rica (defendant) to enforce
the contracts and collect on the Tinoco regime’s liabilities. Costa Rica argued that the Tinoco
regime was not a recognized government capable of entering into contracts on behalf of the State.
Additionally, Costa Rica argued that since Great Britain itself did not recognize the Tinoco regime
as a government, it could not claim that Tinoco conferred enforceable rights such as the oil
concession on British citizens. In March 1923, the case was considered by an Arbitrator, United
States Chief Justice William H. Taft.

ISSUE: Does nonrecognition of a new government by other governments destroy the de facto
status of the government? NO.

RULING: A government that establishes itself and maintains a peaceful de facto administration
need not to conform to previous constitution and nonrecognition of the government by other
governments does not destroy the de facto status of the government.

A government need not conform to a previous constitution if the government had established itself
and maintained a peaceful de facto administration and non-recognition of the government by other
government does not destroy the de facto status of the government. The non-recognition of the
Tinoco regime by Great Britain did not dispute the de facto existence of that regime. There is no
estoppel since the successor government had not been led by British non-recognition to change its
position.

The arbitrator found there was no estoppel. The evidence of nonrecognition did not outweigh the
evidence of the de facto status of the Tinoco regime. Unrecognized governments thus may have
the power to form valid contracts.

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To hold that a government which establishes itself and maintains a peaceful administration, with
the acquiescence of the people for a substantial period of time, does not become a de facto
government unless it conforms to a previous constitution would be to hold that within the rules of
international law a revolution contrary to the fundamental law of the existing government cannot
establish a new government. This cannot be, and is not, true. The change by revolution upsets the
rule of the authorities in power under the then existing fundamental law, and sets aside the
fundamental law in so far as the change of rule makes it necessary. To speak of a revolution
creating a de facto government, which conforms to the limitations of the old constitution is to use
a contradiction in terms. The same government continues internationally, but not the internal law
of its being. The issue is not whether the new government assumes power or conducts its
administration under constitutional limitations established by- the people during the incumbency
of the government it has overthrown. The question is, has it really established itself in such a way
that all within its influence recognize its control, and that there is no opposing force assuming to
be a government in its place? Is it discharging its functions as a government usually does, respected
within its own jurisdiction?

2005 WORLD SUMMIT OUTCOME REPORT SUMMARY


RES/60/1 SIXTEENTH SESSION
24 OCTOBER 2005

The world’s leaders, meeting at United Nations Headquarters in New York City, United
States of America, agreed to take action on a range of global challenges. The General Assembly
adopted a Resolution on 16 September 2005 adopting the following:

The General Assembly decided upon ten (10) matters of global concern, namely:
Development, Terrorism, Peacebuilding, Peacekeeping, and Peacemaking, Responsibility to
Protect, Human Rights, Democracy, and the Rule of Law, Management Reform, Environment,
International Health, Humanitarian Assistance, and Updating the UN Charter.

In the first matter, Development, the leaders adopted a strong and unambiguous
commitment by all governments, in donor and developing nations alike, to achieve the Millennium
Development Goals by 2015. They also agreed on an additional $50 billion a year for fighting
poverty. There were also statements of commitment by all developing countries to adopt national
plans for achieving the Millennium Development Goals by 2006 and the commitment to innovative
sources of financing for development, including efforts by groups of countries to implement an
International Finance Facility and other initiatives to finance development projects, in particular
in the health sector, as well as the commitment to trade liberalization and expeditious work towards
implementing the development dimensions of the Doha work programme. Lastly, the countries,
represented by their leaders, agreed to provide immediate support for quick impact initiatives to
support anti-malaria efforts, education, and healthcare, and to consider additional measures to
ensure long-term debt sustainability through increased grant based financing, cancellation of 100
per cent of the official multilateral and bilateral debt of heavily indebted poor countries (HIPCs).
Where appropriate, to consider significant debt relief or restructuring for low and middle income
developing countries with unsustainable debt burdens that are not part of the HIPC initiative.

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As to the matter of Terrorism, the countries collectively made a clear and unqualified
condemnation, for the first time, of terrorism “in all its forms and manifestations, committed by
whomever, wherever and for whatever purposes.” The General Assembly likewise produced a
strong political push for a comprehensive convention against terrorism within a year. Support for
early entry into force of the Nuclear Terrorism Convention. All states are encouraged to join and
implement it as well as the 12 other antiterrorism conventions including an agreement to fashion
a strategy to fight terrorism in a way that makes the international community stronger and the
terrorists weaker.

Consequently, as to Peacebuilding, Peacekeeping, and Peacemaking, the leaders decided


to create a Peacebuilding Commission to help countries transition from war to peace, backed by a
support office and a standing fund and created a new standing police capacity for UN Peacekeeping
operations. The General Assembly also agreed to strengthen the Secretary-General’s capacity for
mediation and good offices.

In the matter of Responsibility to Protect, a clear and unambiguous acceptance by all


governments of the collective international responsibility to protect populations from genocide,
war crimes, ethnic cleansing and crimes against humanity was made, including the willingness to
take timely and decisive collective action for this purpose, through the Security Council, when
peaceful means prove inadequate and national authorities are manifestly failing to do it. The
General Assembly also made decisive steps to strengthen the UN human rights machinery, backing
the action plan and doubling the budget of the High Commissioner and the agreement to establish
a UN Human Rights Council during the coming year. The leaders reaffirmed democracy as a
universal value, and welcome for new Democracy Fund which has already received pledges of
$32 million from 13 countries and pledged a commitment to eliminate pervasive gender
discrimination, such as inequalities in education and ownership of property, violence against
women and girls and to end impunity to such violence.

As to Management Reform, a broad strengthening of the UN’s oversight capacity,


including the Office of Internal Oversight Services, expanding oversight services to additional
agencies, calling for developing an independent oversight advisory committee was made, and
further developing a new ethics office. Likewise, a commitment by all member countries to
overhauling rules and policies on budget, finance and human resources so the Organization can
better respond to current needs; and a one-time staff buy-out to ensure that the UN has the
appropriate staff for today’s challenges, was given.

In Environment, the seventh matter, a recognition of the serious challenge posed by climate
change was made and a commitment to take action through the UN Framework Convention on
Climate Change. Assistance will be provided to those most vulnerable, like small island
developing states. Moreover, an agreement to create a worldwide early warning system for all
natural hazards between and among the leaders was made.

For International Health, the scaling up of responses to HIV/AIDS, TB, and malaria,
through prevention, care, treatment and support, and the mobilization of additional resources from
national, bilateral, multilateral and private sources were adopted. Further, commitment by the
member states to fight infectious diseases, including a commitment to ensure full implementation

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of the new International Health Regulations, and support for the Global Outbreak Alert and
Response Network of the World Health Organization.

With regard to the matter of Humanitarian Assistance, the General Assembly adopted to
improve Central Emergency Revolving Fund to ensure that relief arrives reliably and immediately
when disasters happen. The General Assembly likewise adopted the recognition of the Guiding
Principles on Internal Displacement as an important international framework for the protection of
internally displaced persons.

Lastly, a decision was made to revise and update the UN Charter by winding up the
Trusteeship Council, marking completion of UN’s historic decolonisation role and by deleting
anachronistic references to “enemy states” in the Charter.

Afterwards, the 8th plenary meeting of the UN was concluded.

DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW CONCERNING


FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN
ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS
UNGA/RES 2625 (XXV)
24 OCTOBER 1970

The United Nations General Assembly Resolution 2625, or, “The Declaration on Principles
of International Law concerning Friendly Relations and Co-operating among States in accordance
with the Charter of the United Nations” was adopted during a commemorative session to celebrate
the twenty-fifth (25th) anniversary of the United Nations (UN).

Prior to the 1970 session of a Special Committee, informal consultations were held in
Geneva from 16 to 20 February 1970. During the 1970 session, also held in Geneva from 31 March
to 1 May 1970, the Special Committee decided to dispense with the general debate which at earlier
sessions had preceded the consideration of the principles referred to it. Instead, consultations,
which were coordinated by the Chairman of the Special Committee, were held at an informal level.
The basis for the consultations was the draft prepared by the Drafting Committee as adopted by
the Special Committee in 19691, including amendments and proposals submitted in its 1966, 1967,
1968 and 1969 sessions. After considering the outcome reached at the informal meetings, the
Drafting Committee adopted a report containing a draft declaration on all seven principles. On 1
May 1970, the Special Committee adopted the report of the Drafting Committee 2. The Special
Committee heard the position of various Governments on its work and added these statements to
the draft Declaration of Principles of International Law concerning Friendly Relations and Co-
operation among States submitted to the General Assembly3.

1
Special Committee Report A/7619
2
Special Committee Report A/AC.125/L.86
3
Special Committee Report A/8018

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The draft Declaration was considered by the General Assembly at its twenty-fifth session
in 1970. The item was once again allocated to the Sixth Committee, which considered it from 23
to 28 September 1970. Following this debate, sixty-four States sponsored a draft resolution, which
contained the text of the Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the United Nations in
an annex. The draft resolution was adopted without objection by the Sixth Committee on 28
September 19704.

On the recommendation of the Sixth Committee, the General Assembly thus adopted,
without a vote, resolution 2625 (XXV) of 24 October 1970, by which it approved the Declaration.
The aforesaid Declaration worked out most authoritative and comprehensive formulation
so far of the principle of self-determination5. According to this Declaration, “the principle of equal
rights and self-determination of peoples enshrined in the Charter of the United Nations” embraces
the right of all peoples “freely to determine, without external interference, their political status and
to pursue their economic, social, and cultural development” as well as the duty of every State “to
respect this right in accordance with the provisions of the Charter.”

Additionally, the Declaration solemnly proclaimed 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 purpose of the
[UN]”. More importantly, it was proclaimed that, “a war of aggression constitutes a crime against
the peace, for which there is responsibility under international law.”

Furthermore, the Declaration added that “the establishment of a sovereign and independent
State, the free association or integration with an independent State, or the emergence into any other
political status freely determined by a people constitute modes of implementing the right of self-
determination", thus stressing, as the critical issue, the methods of reaching the decision and not
the result.

4
Special Committee Report A/8082
5
Art. I of the United Nations Charter

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