THE REPUBLIC OF AERYS V.

THE STATE OF RHAEGAR

REVIEW OF RELATED LITERATURE
SUBMITTED BY: ZHANIKA MARIE O. CARBONELL
1. THE INTERNATIONAL COURT OF JUSTICE AND ITS JURISDICTION
The Statute of the International Court of Justice is annexed to the Charter
of the United Nations, of which it forms an integral part. The main object of the
Statute is to organize the composition and the functioning of the Court.1
The following articles provide for the competence of the ICJ under its
Statute:2
Article 34
1. Only states may be parties in cases before the Court.
2. The Court, subject to and in conformity with its Rules, may request of public
international organizations information relevant to cases before it, and shall
receive such information presented by such organizations on their own initiative.
3. Whenever the construction of the constituent instrument of a public
international organization or of an international convention adopted thereunder
is in question in a case before the Court, the Registrar shall so notify the public
international organization concerned and shall communicate to it copies of all
the written proceedings.
Article 35
1. The Court shall be open to the states parties to the present Statute.
2. The conditions under which the Court shall be open to other states shall,
subject to the special provisions contained in treaties in force, be laid down by
the Security Council, but in no case shall such conditions place the parties in a
position of inequality before the Court.
3. When a state which is not a Member of the United Nations is a party to a case,
the Court shall fix the amount which that party is to contribute towards the
expenses of the Court. This provision shall not apply if such state is bearing a
share of the expenses of the Court
Article 36
1. The jurisdiction of the Court comprises all cases which the parties refer to it
and all matters specially provided for in the Charter of the United Nations or in
treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to

1 International Court of Justice, Basic Documents: Statute of the Court, available at

http://www.icj-cij.org/documents/?p1=4&p2=2 (last accessed November 20, 2014).
2 United Nations, Statute of the International Court of Justice, available at
http://www.refworld.org/docid/3deb4b9c0.html (last accessed November 20, 2014).

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;
c. the existence of any fact which, if established, would constitute a breach of an
international obligation;
d. the nature or extent of the reparation to be made for the breach of an
international obligation.
3. The declarations referred to above may be made unconditionally or on
condition of reciprocity on the part of several or certain states, or for a certain
time.
4. Such declarations shall be deposited with the Secretary-General of the United
Nations, who shall transmit copies thereof to the parties to the Statute and to the
Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as between the
parties to the present Statute, to be acceptances of the compulsory jurisdiction of
the International Court of Justice for the period which they still have to run and
in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter
shall be settled by the decision of the Court.
Article 37
Whenever a treaty or convention in force provides for reference of a matter to a
tribunal to have been instituted by the League of Nations, or to the Permanent
Court of International Justice, the matter shall, as between the parties to the
present Statute, be referred to the International Court of Justice.
Article 38
1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.

The Court may entertain two types of cases: legal disputes between States
submitted to it by them (contentious cases) and requests for advisory opinions on

legal questions referred to it by United Nations organs and specialized agencies

(advisory proceedings).3
Contentious cases
Only States (States Members of the United Nations and other States which
have become parties to the Statute of the Court or which have accepted its
jurisdiction under certain conditions) may be parties to contentious cases.4
The Court is competent to entertain a dispute only if the States concerned
have accepted its jurisdiction in one or more of the following ways:
1. by entering into a special agreement to submit the dispute to the Court;
2. 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 dispute of a
given type or disagreement over the interpretation or application of the
treaty, one of them may refer the dispute to the Court;
3. through the reciprocal effect of declarations made by them under the
Statute whereby each has accepted the jurisdiction of the Court as
compulsory in the event of a dispute with another State having made a
similar declaration. A number of these declarations, which must be
deposited with the United Nations Secretary-General, contain reservations
excluding certain categories of dispute.5
By signing the Charter, a State Member of the United Nations undertakes to
comply with any decision of the Court in a case to which it is a party. Since,
furthermore, a case can only be submitted to the Court and decided by it if the
parties have in one way or another consented to its jurisdiction over the case, it is
rare for a decision not to be implemented. A State which contends that the other
side has failed to perform the obligations incumbent upon it under a judgment
rendered by the Court may lay the matter before the Security Council, which is
empowered to recommend or decide upon the measures to be taken to give effect
to the judgment.6
The procedure described above is the normal procedure. Certain matters can
however affect the proceedings. The most common case is that of preliminary
objections raised in order to prevent the Court from delivering judgment on the
merits of the case (the respondent State may contend, for example, that the Court
lacks jurisdiction or that the application is inadmissible). The matter is one for the
Court itself to decide. Then, there are provisional measures, which can be
3 International Court of Justice, How the Court Works, available at http://www.icjcij.org/court/index.php?p1=1&p2=6 (last accessed November 20, 2014).
4 Id.
5 Id.
6 Id.

requested as interim measures by the applicant State if the latter considers that the
rights which form the subject of its application are in immediate danger. It may
further occur that a State seeks to intervene in a dispute involving other States
because it considers that it has an interest of a legal nature which may be affected
by the decision to be taken in the dispute between those States. The Statute also
makes provision for cases where the respondent State does not appear before the
Court, either because it totally rejects the Courts jurisdiction or for any other
reason. Hence failure by one party to appear does not prevent proceedings in a
case from taking their course. But in such a case the Court must first satisfy itself
that it has jurisdiction. Finally, should the Court find that parties to separate
proceedings are submitting the same arguments and submissions against a
common opponent in relation to the same issue, it may order joinder of the
proceedings.7
The sources of law that the Court must apply are: international treaties and
conventions in force; international custom; the general principles of law; and
judicial decisions and the teachings of the most highly qualified publicists.
Moreover, if the parties agree, the Court can decide a case ex aequo et bono, i.e.,
without limiting itself to existing rules of international law.8
2. MEMBERSHIP TO THE UNITED NATIONS
The provisions regarding membership to the United Nations under its charter state
that:9
Article 3
The original Members of the United Nations shall be the states which, having
participated in the United Nations Conference on International Organization at
San Francisco, or having previously signed the Declaration by United Nations of
1 January 1942, sign the present Charter and ratify it in accordance with Article
110.
Article 4
Membership in the United Nations is open to all other peace-loving states which
accept the obligations contained in the present Charter and, in the judgment of
the Organization, are able and willing to carry out these obligations.
The admission of any such state to membership in the United Nations will be
effected by a decision of the General Assembly upon the recommendation of the
Security Council.
Article 5
A Member of the United Nations against which preventive or enforcement
action has been taken by the Security Council may be suspended from the
EXERCISE of the rights and privileges of membership by the General Assembly
upon the recommendation of the Security Council. The exercise of these rights
and privileges may be restored by the Security Council.

7 Id.
8 Id.
9 United Nations, Charter of the United Nations: Membership, available at
http://www.un.org/en/documents/charter/chapter2.shtml (last accessed November 20, 2014).

Article 6
A Member of the United Nations which has persistently violated the Principles
contained in the present Charter may be expelled from the Organization by the
General Assembly upon the recommendation of the Security Council.

3. RESOLUTIONS OF THE UN SECURITY COUNCIL

United Nations resolutions are formal expressions of the opinion or will of United
Nations organs. They generally consist of two clearly defined sections: a
preamble and an operative part. The preamble generally presents the
considerations on the basis of which action is taken, an opinion expressed or a
directive given. The operative part states the opinion of the organ or the action to
be taken.10
The Members of the United Nations agree to accept and carry out the decisions of
the Security Council in accordance with the present Charter.11
Under the United Nations Charter, the functions and powers of the Security
Council are:12
to maintain international peace and security in accordance with the
principles and purposes of the United Nations;
to investigate any dispute or situation which mightlead to international
friction;
to recommend methods of adjusting such disputes or the terms of
settlement;
to formulate plans for the establishment of a system to regulate
armaments;
to determine the existence of a threat to the peace or act of aggression and
to recommend what action should be taken;
to call on Members to apply economic sanctions and other measures not
involving the use of force to prevent or stop aggression;
to take military action against an aggressor;
to recommend the admission of new Members;
to exercise the trusteeship functions of the United Nations in "strategic
areas";
to recommend to the General Assembly the appointment of the SecretaryGeneral and, together with the Assembly, to elect the Judges of the
International Court of Justice.
4. MOST-FAVORED-NATION RELATIONSHIP
10United Nations, Security Council: Documents, available at
http://www.un.org/en/sc/documents/resolutions/ (last accessed November 20, 2014).
11 U.N. Charter art. 25.
12 United Nations, Security Council: Powers and Functions, available at
http://www.un.org/en/sc/about/functions.shtml (last accessed November 20, 2014).

Under the WTO agreements, countries cannot normally discriminate

between their trading partners. Grant someone a special favour (such as a lower
customs duty rate for one of their products) and you have to do the same for all
other WTO members.13
This principle is known as most-favoured-nation (MFN) treatment. It is so
important that it is the first article of the General Agreement on Tariffs and Trade
(GATT), which governs trade in goods. MFN is also a priority in the General
Agreement on Trade in Services (GATS) (Article 2) and the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS) (Article 4), although in
each agreement the principle is handled slightly differently. Together, those three
agreements cover all three main areas of trade handled by the WTO.14
Some exceptions are allowed. For example, countries can set up a free
trade agreement that applies only to goods traded within the group
discriminating against goods from outside. Or they can give developing countries
special access to their markets. Or a country can raise barriers against products
that are considered to be traded unfairly from specific countries. And in services,
countries are allowed, in limited circumstances, to discriminate. But the
agreements only permit these exceptions under strict conditions. In general, MFN
means that every time a country lowers a trade barrier or opens up a market, it has
to do so for the same goods or services from all its trading partners whether
rich or poor, weak or strong.15
5. PIERCING THE VEIL OF CORPORATE FICTION
It is the act of hiding behind the separate and distinct personalities of
juridical entities to perpetuate fraud, commit illegal acts, evade ones obligations
that the equitable piercing doctrine was formulated to address and prevent.16
A settled formulation of the doctrine of piercing the corporate veil is that
when two business enterprises are owned, conducted and controlled by the same
parties, both law and equity will, when necessary to protect the rights of third
parties, disregard the legal fiction that these two entities are distinct and treat them
as identical or as one and the same.17
6. SUBJECTS OF INTERNATIONAL LAW

13 World Trade Organization, Trade Without Discrimination, available at

http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm (last accessed November 20,
2014).
14 Id.
15 Id.
16 Sarona v. NLRC, G.R. No. 185280 (2012).
17 Id.

International law is constituted by States and it is generally concerning the

activities and the transactions of States. As Warbrick says International law.....
has something to do with States Fifty years ago it was generally admitted that
States are the only legal persons of the international law, but today conception
is rather different, the participants can be regarded as; states, international
organizations, regional organizations, non-governmental organizations, public
companies, private companies and individuals.18
International law states that, an entity which meets the international legal
criteria of statehood is able to be a State. And the Article 1 of the Montevideo
Convention on Rights and Duties of States provides the criteria of the statehood.
According the Convention a state should have; a) a permanent population b) a
defined territory c) government and d) capacity to enter into relations with other
states. Similarly, the Arbitration Commission of the European Conference on
Yugoslavia in Opinion No. 1 declared that the State is commonly defined as a
community which consists of a territory and a population subject to an organized
political authority and that such a State is characterized by sovereignty.19
Recognition is a unilateral act of a State and one that has international legal
consequences, for instance where State grant recognition to an entity, it accepts
that they will have relations subject to international law on basis of State/State. In
practice, like claimed by declaratory theory, the political existence of a State is
not bound to the recognition of other States, therefore an unrecognized State has
to act comply with the international law rules. It means that, when the States sign
an international agreement which is signed by a State they have not recognized,
they will have the right to ask from that state to fulfill the responsibilities grow
out of the agreement.20
After recognition, the recognizing States would respect to the rights of the new
State which indicated in the International Law Commission Draft Declaration on
Rights and Duties of States, 1949, such as right to independence and hence to
exercise freely, right to exercise jurisdiction over its territory and over all persons,
right to equality in law with every other State, right of individual or collective
self-defense against armed attack21
The participation in the international process is not the only result of
recognition, at the same time the recognised State will be able to enjoy usual legal
consequences of recognition such as privileges and immunities within the
domestic legal order.22
18 Nurullah Yamali, What is Meant by State Recognition in International Law (An Unpublished
Paper Submitted to Ministry of Justice in Turkey) 3, available at www.justice.gov.tr/ejournal/pdf/LW7081.pdf (last accessed November 20, 2014).
19 Id.
20 Yamali, supra note 18, at 12.
21 Id.
22 Yamali, supra note 18, at 13.

7. STATE IMMUNITY
According to a general rule of customary international law, states enjoy
immunity from the jurisdiction of other states. The International Court of
Justice has held that state immunity derives from the principle of sovereign
equality of states, which, as 2.1 of the Charter of the United Nations makes clear,
is one of the fundamental principles of the international legal order.23
In the case of international organizations, unlike that of states, the
prevailing view at present is that no rule of customary international law confers
immunity on them.24
8. 1948 UNIVERSAL DECLARATION OF HUMAN RIGHTS
The pertinent provisions of the UDHR that may be applicable to this case are the
following:25
Article 4.
No one shall be held in slavery or servitude; slavery and the slave
trade shall be prohibited in all their forms.
Article 8.
Everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted
him by the constitution or by law.
Article 23.
(1) Everyone has the right to work, to free choice of employment,
to just and favorable conditions of work and to protection against
unemployment.
(2) Everyone, without any discrimination, has the right to equal
pay for equal work.
(3) Everyone who works has the right to just and favorable
remuneration ensuring for himself and his family an existence
worthy of human dignity, and supplemented, if necessary, by other
means of social protection.
(4) Everyone has the right to form and to join trade unions for the
protection of his interests.
9. 2000 GUIDELINES FOR MULTINATIONAL ENTERPRISES

23 Duhaimes International Law Dictionary, State Immunity, available at

http://www.duhaime.org/LegalDictionary/S/StateImmunity.aspx (last accessed November 20,
2014).
24 Id.
25 Universal Declaration of Human Rights, arts. 4, 8 & 23, 10 December 1948, 217 A (III).

The OECD Guidelines for Multinational Enterprises (the Guidelines) are

recommendations addressed by governments to multinational enterprises. They
provide voluntary principles and standards for responsible business conduct
consistent with applicable laws.26
Enterprises should, within the framework of applicable law, regulations
and prevailing labor relations and employment practices:27
1. (c) Contribute to the elimination of all forms of forced or compulsory
labor.
4. (a) Observe standards of employment and industrial relations not less
favorable than those observed by comparable employers in the host
country.
Enterprises should, within the framework of laws, regulations and administrative
practices in the countries in which they operate, and in consideration of relevant
international agreements, principles, objectives, and standards, take due account
of the need to protect the environment, public health and safety, and generally to
conduct their activities in a manner contributing to the wider goal of sustainable
development. In particular, enterprises should:28
3. Assess, and address in decision-making, the foreseeable environmental,
health, and safety-related impacts associated with the processes, goods and
services of the enterprise over their full life cycle. Where these proposed
activities may have significant environmental, health, or safety impacts,
and where they are subject to a decision of a competent authority, prepare
an appropriate environmental impact assessment.
4. Consistent with the scientific and technical understanding of the risks,
where there are threats of serious damage to the environment, taking also
into account human health and safety, not use the lack of full scientific
certainty as a reason for postponing cost-effective measures to prevent or
minimize such damage.

26 Organisation for Economic Co-operation and Development, OECD Guidelines for

Multinational Enterprises, available at http://www.oecd.org/corporate/mne/1922428.pdf (last
accessed November 20, 2014).
27 Id.
28 Id.