V.

Subjects of International Law

- Subjects of International Law refer to entities that are capable of possessing and exercising rights and performing
obligations under International Law.
- aka INTERNATIONAL LEGAL PERSONS – actors in the international plain

possess rights and exercise rights; also exercise rights in the international plain(?)

SUBJECTS
1) States
2) International Organizations
3) Individuals
4) Multinational Corporations
5) Insurgents
6) National Liberation Movements

MAIN CAPACITIES
1) Capable or has the capacity to make claims before international and national tribunals in order to vindicate rights
given by International Law
2) Perform subject some or all the obligations imposed by International Law
3) Power to make valid international agreements binding in International Law
4) Enjoy some or all of the immunities from jurisdiction of the national courts of other States

* Only STATES, being the primary subject of International Law, have all the capacities in full measure. Other
subjects may have some of the capacity or all of the capacities in varying degrees, as may be necessary for the
achievement of their roles in the international legal system

A. The State

STATE
- A community of persons more or less numerous, permanently occupying a definite portion of territory,
independent of external control, and possessing an organized government to which the great body of
inhabitants render habitual obedience

1. Criteria of Statehood in the 1933 MONTEVIDEO CONVENTION ON THE RIGHTS AND DUTIES OF
STATES
a) permanent population
a community of persons sufficient in number and capable of maintaining the permanent existence of the
community and held together by a common bond of law

there must be a population that can be considered in the ordinarily parlance

b) defined territory
c) government
d) capacity to enter into relations with other States

Montevideo Convention

RIGHT TO SELF DETERMINATION

- valid under international law even if enforced through wars

i. Province of North Cotabato v. GRP Peace Panel (previously assigned)

FACTS
Subject of this case is the Memorandum of Agreement on the Ancestral Domain (MOA-AD) which is
scheduled to be signed by the Government of the Republic of the Philippines and the MILF in August 05,
2008. Five cases bearing the same subject matter were consolidated by this court namely:
1) GR 183591 by the Province of Cotabato and Vice Governor Pinol on its prayer to declare
unconstitutional and to have the MOA-AD disclosed to the public and be open for public
consultation
2) GR 183752 by the City of Zamboanga et al on its prayer to declare null and void said MOA-AD and
to exclude the city to the BJE.
3) GR 183893 by the City of Iligan enjoining the respondents from signing the MOA-AD and
additionally impleading Exec. Sec. Ermita
4) GR 183951 by the Province of Zamboanga del Norte et al, praying to declare null and void the
MOA-AD and without operative effect and those respondents enjoined from executing the MOA-AD
5) GR 183692 by Maceda, Binay and Pimentel III, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the MOA-AD and or any other
agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being
unconstitutional and illegal and impleading Iqbal.

The MOA-AD is a result of various agreements entered into by and between the government and the
MILF starting in 1996; then in 1997, they signed the Agreement on General Cessation of Hostilities; and
the following year, they signed the General Framework of Agreement of Intent on August 27, 1998.
However, in 1999 and in the early of 2000, the MILF attacked a number of municipalities in Central
Mindanao. In March 2000, they took the hall of Kauswagan, Lanao del Norte; hence, then Pres. Estrada
declared an all-out war-which tolled the peace negotiation. It was when then Pres. Arroyo assumed
office, when the negotiation regarding peace in Mindanao continued. MILF was hesitant; however, this
negotiation proceeded when the government of Malaysia interceded. Formal peace talks resumed and
MILF suspended all its military actions. The Tripoli Agreement in 2001 lead to the ceasefire between the
parties. After the death of MILF Chairman Hashim and Iqbal took over his position, the crafting of MOA-
AD in its final form was born.

* MOA-AD OVERVIEW
This is an agreement to be signed by the GRP and the MILF. Used as reference in the birth of this MOA-
AD are the Tripoli Agreement, organic act of ARMM, IPRA Law, international laws such as ILO Convention
169, the UN Charter etc., and the principle of Islam i.e compact right entrenchment (law of compact,
treaty and order). The body is divided into concepts and principles, territory, resources, and governance.

Embodied in concepts and principles, is the definition of Bangsamoro as all indigenous peoples of
Mindanao and its adjacent islands. These people have the right to self- governance of their
Bangsamoro homeland to which they have exclusive ownership by virtue of their prior rights of
occupation in the land. The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation'
with defined territory and with a system of government having entered into treaties of amity
and commerce with foreign nations." It then mentions for the first time the "Bangsamoro
Juridical Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro.

As defined in the territory of the MOA-AD, the BJE shall embrace the Mindanao-Sulu-Palawan
geographic region, involving the present ARMM, parts of which are those which voted in the inclusion
to ARMM in a plebiscite. The territory is divided into two categories, “A” which will be subject to plebiscite
not later than 12 mos. after the signing and “B” which will be subject to plebiscite 25 years from the
signing of another separate agreement. Embodied in the MOA-AD that the BJE shall have jurisdiction over
the internal waters-15kms from the coastline of the BJE territory; they shall also have "territorial waters,"
which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines
(RP) south east and south west of mainland Mindanao; and that within these territorial waters, the BJE
and the government shall exercise joint jurisdiction, authority and management over all natural
resources. There will also be sharing of minerals in the territorial waters; but no provision on the internal
waters.

Included in the resources is the stipulation that the BJE is free to enter into any economic cooperation
and trade relations with foreign countries and shall have the option to establish trade missions in those
countries, as well as environmental cooperation agreements, but not to include aggression in the GRP.
The external defense of the BJE is to remain the duty and obligation of the government. The BJE shall
have participation in international meetings and events" like those of the ASEAN and the specialized
agencies of the UN. They are to be entitled to participate in Philippine official missions and delegations
for the negotiation of border agreements or protocols for environmental protection and equitable sharing
of incomes and revenues involving the bodies of water adjacent to or between the islands forming part of
the ancestral domain. The BJE shall also have the right to explore its resources and that the sharing
between the Central Government and the BJE of total production pertaining to natural resources is to be
75:25 in favor of the BJE. And they shall have the right to cancel or modify concessions and TLAs.

And lastly in the governance, the MOA-AD claims that the relationship between the GRP and MILF is
associative i.e. characterized by shared authority and responsibility. This structure of governance
shall be further discussed in the Comprehensive Compact, a stipulation which was highly contested
before the court. The BJE shall also be given the right to build, develop and maintain its own institutions,
the details of which shall be discussed in the comprehensive compact as well.

ISSUE & RULING:

The SC declared the MOA-AD contrary to law and the Constitution.

ISSUE RULING
1.
have complied with
the procedural
requirements for the
exercise of judicial
review
2.
violate constitutional
and statutory
provisions on public
consultation and the
right to information
when they
negotiated and later
initialed the MOA-AD
3. With regard to the provisions of the MOA-AD, there can be no question that
the MOA-AD violated they cannot be all accommodated under the present Constitution and laws.
the Constitution and Not only its specific provisions but the very concept underlying them:
the laws

a. On the recognition of the BJE entity as a state.

The concept implies power beyond what the Constitution can grant to a
local government; even the ARMM do not have such recognition; and the
fact is such concept implies recognition of the associated entity as a state.
There is nothing in the law that contemplate any state within the
jurisdiction other than the Philippine State, much less does it provide for a
transitory status that aims to prepare any part of Philippine territory for
independence. The court disagrees with the respondent that the MOA-AD
merely expands the ARMM. BJE is a state in all but name as it meets the
criteria of a state laid down in the Montevideo Convention, namely, a
permanent population, a defined territory, a government, and a capacity to
enter into relations with other states. As such the MOA-AD clearly runs
counter to the national sovereignty and territorial integrity of the Republic.

What are the capacity of the BJE based dun sa BJE

- Power to enter into treaties, can attend international meetings as
itself

a. On matters of international law.

The Philippines adopts the generally accepted principle of international law
as part of the law of the land. In international law, the right to self-
determination has long been recognized which states that people can freely
determine their political status and freely pursue their economic, social, and
cultural development. There are the internal and external self-determination
—internal, meaning the self-pursuit of man and the external which takes
the form of the assertion of the right to unilateral secession. This principle
of self-determination is viewed with respect accorded to the territorial
integrity of existing states. External self-determination is only afforded in
exceptional cases when there is an actual block in the meaningful exercise
of the right to internal self-determination. International law, as a general
rule, subject only to limited and exceptional cases, recognizes that the right
of disposing national territory is essentially an attribute of the sovereignty of
every state.

On matters relative to indigenous people, international law states that

indigenous peoples situated within states do not have a general right to
independence or secession from those states under international law, but
they do have rights amounting to what was discussed above as the right to
internal self-determination; have the right to autonomy or self-government
in matters relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions; have the right to the
lands, territories and resources which they have traditionally owned,
occupied or otherwise used or acquired.

Clearly, there is nothing in the law that required the State to guarantee the
indigenous people their own police and security force; but rather, it shall be
the State, through police officers, that will provide for the protection of the
people. With regards to the autonomy of the indigenous people, the law
does not obligate States to grant indigenous peoples the near-independent
status of a state; since it would impair the territorial integrity or political
unity of sovereign and independent states.

b. On the concept underlying the MOA-AD.

While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective. The MOA-
AD not being a document that can bind the Philippines under international
law notwithstanding, respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself, sufficient to constitute
grave abuse of discretion. The grave abuse lies not in the fact that they
considered, as a solution to the Moro Problem, the creation of a state within
a state, but in their brazen willingness to guarantee that Congress and the
sovereign Filipino people would give their imprimatur to their solution.
Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or
the people themselves through the process of initiative, for the only way
that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.

D. On matters of the Constitution.

Association as the type of relationship governing between the parties. The
parties manifested that in crafting the MOA-AD, the term association was
adapted from the international law. In international law, association
happens when two states of equal power voluntarily establish
durable links i.e. the one state, the associate, delegates certain
responsibilities to the other, principal, while maintaining its
international status as state; free association is a middle ground
between integration and independence. The MOA-AD contains many
 provisions that are consistent with the international definition of association
which fairly would deduced that the agreement vest into the BJE a status of
an associated state, or at any rate, a status closely approximating it. The
court vehemently objects because the principle of association is
not recognized under the present Constitution.

2. Extinction of States

- If a State subsequently ceases to possess any of the criteria for statehood, it does not cease to be a State
under International Law (e.g. the absence of effective government in Iraq after U.S. intervention). But it is
possible for an entity to cease to be an independent State through lawful means, such as by merger (e.g.
the creation UAE through the successful union of 7 small Gulf States, which includes Dubai and Abu Dhabi)

SUCCESSION OF STATES
1) TERRITORY
- goes to successor/absorbing/new State
2) PROPERTY
- goes to the successor/absorbing/new State, subject to agreement
3) PUBLIC DEBTS
- remains with the predecessor State, subject to agreement, except debts relating to territory now part
of the successor/absorbing/new State
4) TREATIES
- Based on Clean Slate Rule
- successor/absorbing/new State is not bound by treaties made on behalf of its territory by the
former sovereign
o EXCEPTIONS
(1) if the successor/absorbing/new State expressly agrees to be bound by said
treaties
(2) with respect to treaties establishing boundaries or concerning other territorial
matters, in line with the principle of UTI POSSIDETIS

3. Recognition of States and Governments

RECOGNITION
- The act of acknowledging the capacity of an entity to exercise rights belonging to statehood

Can an entity claim to be a State despite non-recognition by other States?

1) DECLARATORY THEORY
- YES
- because recognition is merely declaratory of the existence of the State
- Statehood is acquired upon possession of the required elements of statehood
- Recognition is not a prerequisite
- When a state is recognize, it does not make a new State
- If they recognize you, it is a declaratory of an acknowledgment of that pre-existing legal capacity
of that new state
2) CONSTITUTIVE THEORY
- NO
- because recognition is what makes a State a State
- or what confers legal personality on the entity
- recognition is acknowledgement that there is a new state
- theoretical problem- not consistent with operation of law

* weight of authority favors declaratory theory

 Membership to the United Nations is not synonymous to Statehood

RECOGNITION OF GOVERNMENTS
- an act of acknowledging the capacity of an entity to exercise powers of government of a State
a. DE JURE RECOGNITION
- If the change of government takes place through ordinary constitutional procedure, recognition is
given as a matter of course
b. DE FACTO RECOGNITION
- does not signify approval of the new government, but only a recognition that the government is
effective within the territory

* ESTRADA DOCTRINE - State refrains from the practicing of giving or not giving recognition to a new
government, in order not to breach the State’s sovereignty

4. Consequences of Recognition and Non-recognition

a) No capacity to sue in one’s own name before domestic courts of non-recognizing State
b) Not immune from civil or criminal jurisdiction by the courts of non-recognizing State
c) Not immune from execution of judgments of courts of non-recognizing State
d) No access to funding agencies of non-recognizing State
e) No military and financial assistance from non-recognizing State.

* Even if the government of a State has not been recognized by another State, the latter State is not stopped
from filing a claim against the former before an international tribunal on behalf of its injured citizens, because
though unrecognized the de facto government of the former State can nevertheless create rights on the
citizens of the latter State, which State can protect

i. The Tinoco Arbitration, Great Britain v. Costa Rica (1923)

Plaintiff- Great Britain
Defendant- Costa Rica

FACTS

The Tinoco regime, which was the former government of Costa Rica, was alleged by Great Britain to have
granted oil concession to a British company that had to be honored by the present regime.

The “Tinoco regime” came to power through a coup in Costa Rica in 1917. It lasted for two years. During
this time, the Tinoco regime was recognized as legitimate by some States, but not large powers such as
Great Britain (plaintiff). During its time in power, the Tinoco regime entered into several contracts
(including an oil concession) with the British government. 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 a government need to conform to a previous constitution if the government had established itself and
maintained a peaceful de facto administration and does non-recognition of the government by other
government destroy the de facto status of the government?

RULING:  
No. 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.

Estoppel was not found by the arbitrator. The evidence of the de facto status of the Tinoco’s regime was
not outweighed by the evidence of non-recognition. This implies that valid contracts may be formed by
unrecognized government.

ii. Upright v. Mercury Business Machines Co., 213 NYS 2d 417

This is an action brought by a plaintiff assignee on a trade acceptance drawn by its assignor on itself and
accepted by defendant, representing a balance due for machinery sold to defendant. The complaint alleges
that the assignor was a corporation organized and existing under the laws of West Germany, having its
principal place of business in West Berlin, Republic of West Germany. The motion at bar seeks an order
under subdivisions 1 and 2 of rule 107 of the Rules of Civil Practice dismissing the complaint on the
grounds that the court does not have jurisdiction of the subject matter of the action and/or plaintiff does
not have legal capacity to sue.

The basis of the motion is a contention that the plaintiff’s assignor is a State-controlled enterprise of the
German Democratic Republic. In support thereof, the defendant submits a copy of a communication from
the Chief of the Economic Affairs section of the United States Mission in Berlin to the Department of State.
Plaintiff’s affidavits in opposition state that it has been advised by its assignor that it was founded by
residents of the German Democratic Republic under the Limited Liabilities Company Law of 1892 and its
founding is permitted in the German Democratic Republic; that it has no office in West Berlin but has
concluded contracts with firms in that city and in West Germany; that the negotiations with defendant were
carried on in West Germany. The matter was sent to an Official Referee to hear and report with his
recommendation on this issue.

It has now been conceded that the said assignor was not a West German corporation but rather an East
German corporation. Upon such concession the court cannot recognize the existence of a juridical creature
of a government we do not recognize. The court will take judicial notice that the German Democratic
Republic is not recognized by our Government. However, even though plaintiff’s assignor would have no
right to sue in this court as a corporation since the recognition of that legal entity is barred by the foreign
policy of the United States Government, nevertheless it cannot be denied that some organization or group
of persons does exist and entered into a commercial transaction with the defendant. If it were clear that
this group of people consisted of private citizens unconnected with the unrecognized government, the court
is of the opinion that no further question would exist. The foreign policy of the United States Government
does not require us to deny that there are people residing in and doing business in a certain geographical
area. No prohibition or restriction seems to have been imposed on trading in the items which are the basis
of this cause of action. Where, as here, it has received the benefits of the commercial transaction, it would
be inequitable to permit defendant to retain the fruits thereof without compensation. The point made by
defendant that it would not be able to enforce a proposed counterclaim against plaintiff’s assignor in an
East German court is not well taken. It does have an opportunity to press any claim it may deem advisable
in connection with the subject transaction in this court.

However, overriding foreign policy considerations may make necessary a denial of access to our courts in
the event it is determined that the defendant dealt in some form with the unrecognized Government of the
German Democratic Republic.

If plaintiff’s assignor is as a matter of fact wholly owned by the so-called German Democratic Republic, it
would, by that fact, have no capacity to sue in our court, regardless of its organization. Whether this be so
still remains to be determined, since the proof submitted on this issue is inconclusive.

Plaintiff’s contention that a claim of incapacity to sue cannot be set up against him, despite the refusal of
recognition, in that he is an American citizen and a resident of the State of New York, is without merit. He
can have no greater rights than his assignor.

The subject matter of the contentions urged in support of dismissal under both subdivisions 1 and 2 of rule
107 of the Rules of Civil Practice appears to be identical. It is not that the court does not have jurisdiction
 of the subject matter, but the question is whether the assignor has capacity to sue and the court will
entertain the action.

It appears from defendant’s letter of December 9, 1959, that the sole issue tendered to the Official Referee
was the state of organization of the assignor corporation. It is now agreed that it is an East German
corporation. Accordingly, the motion to dismiss is denied with leave to defendant to raise the matter by
defense in its answer, unless the parties agree to a prior trial of the issues as herein stated, in which event
an order will be settled.

Disposition

Accordingly, the motion to dismiss is denied with leave to defendant to raise the matter by defense in its
answer, unless the parties agree to a prior trial of the issues as herein stated, in which event an order will
be settled.

B. International Organizations
Reparations for Injuries Suffered in the Service of the United Nations, ICJ Advisory Opinion, 11 April 1949**
* refer sa pdf

Number 1 is United nations

What if offending state is not a party of the UN charter or not a member of the UN
- Can UN file a claim against the state
- YES, legal personality does not depend on the fact that it is recognized by the UN

C. Other Subjects of International Law: Individuals, Transnational Corporations, Insurgents, National

Liberation Movements

a. INDIVIDUALS
They have international personality in the sense that they can now be individually charged before the
International Criminal Court for genocide, war crimes, crimes against humanity and crime of aggression.

Why are the subject of IL?

- International oblig are directly imposed on them such that if the violate, they be brought before
an international tribunal
- Because it can be broguth befor international tribunal for commission of international crim
- They do not join immunities, cannot enter into treaties

a. TRANSNATIONAL CORPORATIONS

b. INSURGENTS
They have international personality only for purposes of the application to them of Protocol II to the 1949
Geneva Conventions (Red Cross Conventions) relating to the Protection of Victims of Non-international Armed
Conflicts. For the applicability of the said Protocol, they must satisfy the following requisites: (1) they are under
responsible command, and (2) they exercise control over a part of their territory as to enable them to carry out
sustained and concerted military operations.

c. NATIONAL LIBERATION MOVEMENTS

They have international personality only for purposes of the application to them of Protocol I to the 1949
Geneva Conventions (Red Cross Conventions) relating to the Protection of Victims of International Armed
Conflicts. They are organized groups fighting in behalf of a whole people for freedom from colonial powers, in
the exercise of the right of self-determination.

D. Some Incomplete Subjects: Holy See, Protectorates, Mandated and Trust Territories
1) Vatican City or Holy See has no permanent population, but has extensive diplomatic relations with other States
2) Non-self governing territories under Art 73 of the UN Charter, e.g. Western Sahara
3) Mandated or Trust territories placed under the Mandate System of the League of Nations or the Trusteeship
System of the United States, e.g. Palau not really a state yet like the holy see;
4) Protectorates which dependent States that have control over their internal affairs but whose external affairs
are controlled by another State, e.g. Morocco (a French protectorate until 1956)