CHAPTER 12

CONSEQUENCES OF RIGHTS: PEACEFUL AND FORCIBLE SANCTIONS

PEACEFUL SANCTIONS IN PUBLIC INTERNATIONAL LAW

Peaceful sanctions in Public International Law as provided by Traditionalists:

1. diplomatic negotiations
2. tender and exercise of good offices
3. mediation
4. enquiry and conciliation
5. arbitration
6. reference to the Security Council of the UN
7. reference to regional organizations for the peaceful settlement of disputes
8. reference to the International Court of Justice

DIPLOMATIC NEGOTIATIONS
- constitute the process by which States settle their differences via an exchange of
views between diplomatic agencies' discussions may be oral or written' brief or
prolonged.

TENDER AND EXERCISE OF GOOD OFFICES

- exists when third party' either alone or in collaboration with others, offers to help in
the settlement of a dispute. When the offer is accepted, there is supposed to be an
exercise of good offices.

MEDIATION
- a third party offers to help with a solution, usually based on compromise (as
contradistinguished from "good offices" mediation offers a solution; "good offices"
merely brings the parties together).

ENQUIRY
- is simply an ascertainment of the pertinent facts and issues in a dispute.

CONCILIATION AND ARBITRATION

Conciliation is the reference of the dispute to a commission or international body,

whose decision, however, is NOT BINDING on the parties; when the decision is final and
conclusive on the parties, the process is referred to as Arbitration.
While there is admittedly no international court for litigation such as commercial
disputes governed by private law, arbitration proceedings are not necessarily to be preferred
to legal action before the state courts (despite all their advantages).

ln arbitration, the following considerations are important:

1. the general conditions of the trade concerned automatically provide for arbitration
 2. if the dispute relates to a standard export trans- action, where the sums in dispute are
not very substantial and there is no need for confidentiality of the proceedings, court
proceedings will not necessarily be more lengthy or costly than arbitration
proceedings. But it is essential to check whether a judgment rendered by a foreign
court will be recognized and enforced in the plaintiffs home country or in any other
third country in which the defendant has assets that can be seized.

REFERENCE TO THE SECURITY COUNCIL OF THE UN

When NO danger to international peace is foreseen, the Security Council may step in
only if ALL THE PARTIES to the dispute request its intervention.o When there is DANGER
to in- ternational peace, the Security Council intervenes:

a) on its own motion;

b) on motion of the General Assembly;
c) on motion of the UN Secretary-General;
d) on motion by a UN Member;l0 or (5) on motion by a Non-Member of the UN.

REFERENCE TO REGIONAL ORGANIZATIONS

Regional arrangements or agencies may be established to maintain international peace
(thru regional action) and to peacefully settle local disputes before referring them to the
security council. Their activities ought to be reported to the council (Under Art. 52 of the UN
Charter).

SETTLEMENT BY THE INTERNATIONAL COURT OF JUSTICE

The International court of Justice, tentatively proposed in Dumbarton Oaks, was
created in San Francisco to replace the Permanent court of International Justice. It is
governed by the "statute of the International court of Justice, which has been incorporated as
an integral part of the UN Charter.

Composition of the ICJ

The ICJ is composed of fifteen (15) judges. The sit of the Court is located at The
Hague, The Netherlands. No two of whom may be nationals of the same State. If the court
includes a judge of the nationality of one of the parties, any other party may choose a person
to sit as judge. If the court does not include a judge of the nationality of the parties, each
party may select a person to sit as judge. These extra-judges are known as “ad hoc judges”.

Term and Tenure of Office

The members of the court shall be elected for nine years and may be reelected;
provided, however, that of the judges elected at the first election, the term of five judges shall
expire at the end of three years, and the term of five more judges shall expire at the end of six
years.

How Chosen

The members of the court shall be elected by the General Assembly and by the
security council voting separately and independently. They shall be chosen from candidates
nominated by national groups. Those candidates who obtain an absolute majority of votes in
the General Assembly and in the Security Council shall be considered as elected. For the
purpose of voting for the judges, no distinction is made between the permanent and
nonmembers of the security council. In the event of more than one national of the same state
obtaining an absolute majority of the. votes both of the General Assembly and of the security
council, the eldest of these only shall be considered as elected.

Qualifications

The judges must possess high moral character, and must possess the qualifications
required in their respective countries for appointment to the highest judicial offices" or be
Juris consults of recognized competence in international law.

How Jurisdiction Over States Is Obtained by the Court

1. By Prior Consent – given by the State in signing the so-called “optional clause”
which is done by making a declaration 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.

2. By Simultaneous Consent – it is conferred to by Art. 36 No. 1 of the Statute which

says that 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.

Jurisdiction of the Court

1. The giving of advisory opinions on any regal question at the request of whatever
body may be authorized by oi in accordance with the Charter of the UN to make such
a request.

2. Contentious cases (Iegal disputes)

a. if the consent was made by signing the optional clause:
1. The interpretation of any treaty;
2. Any question of international law;
 3. the existence of any fact which, if established, would constitute a breach of
an international obligation;
4. the nature or extent of reparation to be made for the breach of an
international obligation.
b. in the case of "simultaneous consent, 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."

What is the Doctrine of Forum Prorogatum?

The Doctrine of Forum Prorogatum (or prorogated jurisdiction) is a principle relied

upon in some cases by the International court of Justice (ICJ), whereby the court exercises
jurisdiction over a case when consent to submit to its jurisdiction is given after the initiation
of proceedings in an implied or informal way or by a succession of acts.

What the Court Applies in Deciding Cases

1. Direct Sources of International Law

a) international conventions, whether general or particular, establishing rules
expressly recognized. by the con- testing States;
b) international customs, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations (e.g., estoppel,
prescription, res judicata).

2. Indirect Sources of International Law

a) judicial decisions (of international tribunals)
b) teachings of the most highly qualified publicists of the various nations.

3. Equitable principles

How Decisions of the Court are Enforced

The UN Charter says:

1. Each member of the United Nations undertakes to comply with the decisions of
the International Court of Justice in any case to which it is a party

2. 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.

The Weakness in Enforcing a Judgment

 The question of enforcing both arbitral awards and judicial decisions, has beduffled
the world court. Thus, whenever a State finds objection to carrying out an aw.ard or a
decision, it tends to advance the doctrines of nullity or impossiblity of performance.

Three (3) main reasons for such nullity are given, to wit:

1. Excess of power, i.e., the charge that the arbitral tribunal or the court in question
exceeded the powers granted to it.

2. Corruption of a member of the Tribunal.

3. A serious deviation from the rules of procedure in making the award or decision.

In the event that the "Iosing" party refuses to comply with an arbitral award or a
judicial decision, the "winning" state may resort to self-help measures short of war.

FORCIBLE SANCTIONS

Among the forcible measures generally resorted to as sanctions in international law

are the following:

1. severance or rupture of diplomatic relations (this is a serious matter; usually the

diplomatic agents of the country against which the grievance lies are handed their
passports, or are ordered to leave);

2. retorsions (unfriendly but lawful coercive acts done in retaliation for unfair
treatment and acts of discrimination);

3. reprisals (unfriendly and unlawful acts in retaliation for reciprocal illegal

actuations);
4. special forms of reprisals:

4.1. embargo - this is a special form of reprisal which,in general, consists in

the forcible detention or sequestration of the vessels and other property of
the offending State or even of its own;

 Civil or Pacific Embargo – if a State prevents exit from its ports of its own
vessels or properties.
 Hostile Embargo – if foreign properties and vessels are the object of the
prohibition.

Mandatory Step-by-Steps Sanctions: (permits UN members to use force)

 First, the U.S., upon UN's gesture, recalled its ambassador and suspended all
flights by the Yugoslav national airline.

Second, a UN arms embargo was affected. Along this line, the U.S. helped tighten
the arms embargo by putting pressure on neighboring States that were engaged in
gun-running.

Third, The European Community, also in compliance with the UN's call for
measures, imposed partial sanctions.

4.2. pacific blockade - a special kind of reprisal which prevents entry to or exit
from the ports of the offending state.

4.3. non-intercourse - suspension of all intercourse with the offending State,

particularly in matters of trade; and

4.4. boycott – concerted suspension of commercial relations with the offending

state, with particular reference to a refusal to purchase goods. The ban by
the European Economic Community (European Common Market) on oil
imports from Iran as a consequence of the holding of hostages by militant
Iranian students is a clear example of a modern-day boycott.

4.5. compulsive or enforcement measures under the UN Charter

ECONOMIC SANCTIONS

Economic consequences can vary considerably.

With specific reference to sanctions that may be imposed on, let us say, the Philippine
government in the event of a default on external obligations, these include forcible measures
generally resorted to under international law, thus:

Landing Rights. A proposal to rescind the country's landing rights in the United States
will not only inconvenience Filipino travelers and transients, but also affect the Philippine Air
Lines (PAL). The country’s official carrier, of its economic sustenance.

Consulates. A proposal to end visa services at u.s. consulates in the Philippines will
mean a stop to Filipino migration, the socalled "brain-drain syrrdrome." This spells the end of
overseas opportunities for a lot of qualifred professionals and highly skilled workers.

Private Loans. Another option is to ban U.S. bank loans to the Philippines. Lack of
foreign capital sharply limits the growth of Philippine economy.
 New lnvestments. A ban on all new investments in subsidiaries, is another example of
a sanction affected by market forces. Rather than pump new money in Philippine operation,
parent companies in the U.S. have been selling off assets or letting branches use their profits
to modernize' Results: a net flow of capital from the subsidiaries to their U.S. headquarters
rather than the reverse. Less U.S. business activity in the Philippines not only crimps the
country's economic growth, deprives it of technology, but hits employment hardest.

Total Trade Embargo. This measure could clip the profits of businesses and apply
marginal pressure on the government on a significant scale. A trade embargo will have much
financial effect on Philippine export earnings.

Disinvestment. Possibly, the most sweeping and controversial sanction is one that will
give all American companies to get rid of all their assets in the Philippines. A forced
withdrawal will lead either to a dissolution of these private U.S. assets or their disposal at
fire-sale prices to private buyers. The impact on the Philippines will probably be at least at
temporary loss in skilled management and lower profits.

To abate any deterious upshot, the Philippine government' in anticipation of all

possible sanctions' may develop a two-tier exchange rate for the peso, with lower rates on
money from the sale of foreign assets that will minimize its own capital loss in any foreign-
business pullout.