Thursday, July 31, 2008

MARCOS VS. MANGLAPUS, G.R. NO. 88211 SEPT. 15, 1989

FACTS:

In February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under a revolutionary government. Her ascension to and consolidation of power have not been unchallenged.
Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when the stability of government is threatened from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines..
ISSUE:
The issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the President may prohibit the Marcoses from returning to the Philippines.

RULING:
The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses because only a court may do so "within the limits prescribed by law." Nor may the President impair their right to travel because no law has authorized her to do so. They advance the view that before the right to travel may be impaired by any authority or agency of the government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the Philippines is guaranteed.
Respondents argue for the primacy of the right of the State to national security over individual rights. In support thereof, they cite Article II of the Constitution.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
The President has determined that the destabilization caused by the return of the Marcoses would wipe away the gains achieved during the past few years and lead to total economic collapse. Given what is within our individual and common knowledge of the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.


ICMC VS. CALLEJA, G.R. NO. 85750 SEPT. 28, 1990

FACTS:


As an aftermath of the Vietnam War, the plight of Vietnamese refugees fleeing from South Vietnam's communist rule confronted the international community.
In response to this crisis, on 23 February 1981, an Agreement was forged between the Philippine Government and the United Nations High Commissioner for Refugees whereby an operating center for processing Indo-Chinese refugees for eventual resettlement to other countries was to be established in Bataan. ICMC was one of those accredited by the Philippine Government to operate the refugee processing center in Morong, Bataan. It was incorporated in New York, USA, at the request of the Holy See, as a non-profit agency involved in international humanitarian and voluntary work. It is duly registered with the United Nations Economic and Social Council (ECOSOC) and enjoys Consultative Status, Category II. As an international organization rendering voluntary and humanitarian services in the Philippines, its activities are parallel to those of the International Committee for Migration (ICM) and the International Committee of the Red Cross (ICRC).
On 14 July 1986, Trade Unions of the Philippines and Allied Services (TUPAS) filed with the then Ministry of Labor and Employment a Petition for Certification Election among the rank and file members employed by ICMC. The latter opposed the petition on the ground that it is an international organization registered with the United Nations and, hence, enjoys diplomatic immunity.
On 5 February 1987, Med-Arbiter Anastacio L. Bactin sustained ICMC and dismissed the petition for lack of jurisdiction.
On appeal by TUPAS, Director Pura Calleja of the Bureau of Labor Relations (BLR), reversed the Med-Arbiter's Decision and ordered the immediate conduct of a certification election. At that time, ICMC's request for recognition as a specialized agency was still pending with the Department of Foreign Affairs (DEFORAF).
Subsequently, however, on 15 July 1988, the Philippine Government, through the DEFORAF, granted ICMC the status of a specialized agency with corresponding diplomatic privileges and immunities, as evidenced by a Memorandum of Agreement between the Government and ICMC.
ICMC then sought the immediate dismissal of the TUPAS Petition for Certification Election but the same was denied by respondent BLR Director who, again, ordered the immediate conduct of a pre-election conference.

Thus, on 24 November 1988, ICMC filed the present Petition for Certiorari with Preliminary Injunction assailing the BLR Order.


ISSUE:


Whether or not the grant of diplomatic privileges and immunities to ICMC extends immunity from the application of Philippine labor laws.
RULING:
Article II of the Memorandum of Agreement between the Philippine Government and ICMC provides that ICMC shall have a status "similar to that of a specialized agency." Article III, Sections 4 and 5 of the Convention on the Privileges and Immunities of Specialized Agencies, adopted by the UN General Assembly on 21 November 1947 and concurred in by the Philippine Senate through Resolution No. 19 on 17 May 1949, explicitly provides:
Art. III, Section 4. The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.
Sec. 5. ? The premises of the specialized agencies shall be inviolable. The property and assets of the specialized agencies, wherever located and by whomsoever held shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action. (Emphasis supplied).
Thus it is that the DEFORAF, through its Legal Adviser, sustained ICMC'S invocation of immunity when in a Memorandum, dated 17 October 1988, it expressed the view that "the Order of the Director of the Bureau of Labor Relations dated 21 September 1988 for the conduct of Certification Election within ICMC violates the diplomatic immunity of the organization."
The foregoing opinions constitute a categorical recognition by the Executive Branch of the Government that ICMC enjoy immunities accorded to international organizations, which determination has been held to be a political question conclusive upon the Courts in order not to embarrass a political department of Government.
It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government . . . or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction . . . as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction.
The grant of immunity from local jurisdiction to ICMC is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the Department of Labor in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions.
ICMC's immunity from local jurisdiction by no means deprives labor of its basic rights, which are guaranteed by Article II, Section 18, 14 Article III, Section 8, 15 and Article XIII, Section 3 (supra), of the 1987 Constitution; and implemented by Articles 243 and 246 of the Labor Code, 16 relied on by the BLR Director.
For, ICMC employees are not without recourse whenever there are disputes to be settled. Section 31 of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations 17 provides that "each specialized agency shall make provision for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of private character to which the specialized agency is a party." Moreover, pursuant to Article IV of the Memorandum of Agreement between ICMC and the Philippine Government, whenever there is any abuse of privilege by ICMC, the Government is free to withdraw the privileges and immunities accorded.
Wherefore, the petition is granted.

Sunday, July 27, 2008

RECOGNITION

WHAT IS RECOGNITION?
It is an act by which a state acknowledges the existence of another state, a government or a belligerent community and indicates its willingness to deal with the entity as such under the rules of international law.


WHAT IS THE TOBAR OR WILSON DOCTRINE?
It is a doctrine precludes the recognition of a government established by revolution, civil war, coup d’etat or other forms of internal violence until the freely elected representatives of the people have organized a constitutional government.
The doctrine was first expressed in a treaty concluded in 1907 by the Central American republics at the suggestion of Foreign Minister Tobar of Ecuador and was reiterated by President Woodrow Wilson of the United States in a public statement made in 1913.

WHAT IS THE STIMSON DOCTRINE?
This doctrine precludes the recognition of any government established as a result of external aggression.
Formulated by U.S. Secretary of State Stimson in 1932, it was subsequently adopted by the League of Nations in a resolution declaring that it was “incumbent upon the Members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris.”

WHAT IS ESTRADA DOCTRINE?
Under this doctrine, which is attributed to Foreign Minister Genaro Estrada of Mexico, the diplomat representatives in a country where a political upheaval has taken place will deal or will not deal with whatever government is in control therein at the time and either action shall not be taken as a judgment on the legitimacy of the said government.

ZIMBABWE SITUATION

Zimbabwe: Situation Calls for Decisive Action
WITH no end in sight to the worsening scenario of Zimbabwe's human rights abuses, pressure is now beginning to mount on southern African countries to break the silence and join hands to help resolve the neighbouring country's crisis.
"All SADC (Southern African Development Community) member states must move into Zimbabwe to organise elections and to make the people come together," says Wisdom Gondwe, a Lusaka-based political observer.
"As far as the situation in Zimbabwe is concerned, President Robert Mugabe is ruling by default, he is not the president of Zimbabwe because his mandate expired before the (March 29) election. So, that country's chief justice should have been in control during the period of preparing for the election re-run. He is ruling by default, and even his government officials are all ruling by default."
Zimbabwe is in its eighth year of an economic recession that has seen inflation soar to unofficial estimates of one million per cent - the highest ever in the world - and unemployment levels rising to above 80 per cent. Shortages of key commodities such as fuel and food, have over the years been commonplace in literally every corner of the once-buoyant southern African economic giant.
According to international donor organisations, nearly five million Zimbabweans are in need of emergency food assistance this year alone. It is estimated that as many as three million Zimbabweans could have left the country for neighbouring states, such as Zambia, Botswana, Malawi and South Africa, or have gone further outside the continent to England and the United States.
Inside Zimbabwe, a myriad of glaring cases of violent attacks has been reported with about 86 people, mostly supporters of the opposition Movement for Democratic Change (MDC) killed in targeted attacks since the March 29 election, according to the MDC.
The first round presidential election was won by the MDC's Morgan Tsvangarai, but he fell short of the required 50 per cent plus one vote for an outright victory, forcing a re-run with Mugabe, 84,who has ruled Zimbabwe since independence in 1980.
Last week, about five people were reportedly found dead after missing for some days in the capital Harare, one of them a wife of the MDC's mayor for Harare. Thousands others have been beaten and displaced in recent weeks.
In the wake of the violent clashes in this SADC country, Zambia's President Levy Mwanawasa this week called for the postponement of the election re-run, saying the atmosphere was not conducive for a free and fair ballot.
"The run-off election in Zimbabwe must be postponed to a later date. I urge the responsible authorities in Zimbabwe to implement this postponement to allow for the establishment of conditions that are suitable for holding of genuinely free and fair elections in accordance with Zimbabwean law, the SADC principles and the charter and conventions of the African Union," said President Mwanawasa who is a also chairperson of the 14-nation regional bloc, with an estimated population of about 400 million people.
Dr Mwanawasa's remarks, at a Press conference held on Sunday at State House, came a few hours after the MDC's Tsvangarai announced the withdrawal of his candidature from tomorrow's election re-run which could leave Mr Mugabe as the automatic winner, if the poll went ahead.
"What is happening in Zimbabwe is a matter of serious embarrassment to all of us. It is scandalous for the SADC to remain silent in the light of what is happening," said Mwanawasa.
Several international organisations and individuals have since re-echoed his sentiments with the United Nations Security Council, stating that a free and fair presidential run off in Zimbabwe was impossible.
"The Security Council condemns the campaign of violence against the political opposition. The Security Council regrets that the campaign of violence and the restrictions on the political opposition have made it impossible for a free and fair election to take place on 27 June," said the 15-member body in a statement issued on June 23.
A few days before the Security Council's unanimous position, UN secretary general Ban Ki-moon had called for the ballot to be delayed, saying "conditions do not exist for free and fair elections right now in Zimbabwe. There has been too much violence, too much intimidation."
But Zimbabwe's ambassador to the UN, Boniface Chidyausiku said the vote would still go on as planned even in the absence of Mr Mugabe's rival. "As far as we are concerned, the election will take place on Friday," Chidyausiku was quoted this week by the BBC.
"Should the people of Zimbabwe decide, whoever they elect, that's their sovereign right and there is nobody who can say: 'you have made the wrong decision - you should've elected another candidate'."
The happenings in Zimbabwe have far-reaching consequences on the economic growth and stability of southern Africa. For Zambia particularly, it is feared that the confusions in the neighbouring country could have a damaging effect on its economic prospects. Zambia's Southern Province shares three border posts - Kariba, Kazungula and Chirundu - with Zimbabwe. This is in addition to the electricity generation plant at Kariba, the international tourism draw-card in the name of Victoria Falls, and the world's biggest artificial lake, the Kariba Dam.
But other than the shared geographical and economic facilities, concerns are also mounting on the possible influx of Zimbabwean immigrants escaping worsening political violence in the aftermath of their presidential run-off election.
The Zambian Government does not demand visa requirements from people in neighbouring countries, which analysts say makes it easier for fleeing Zimbabwean immigrants to cross into Zambia as a safe haven.
According to Joseph Chilengi, executive director of the Africa Internally Displaced Persons' Voice, a lobby group championing the rights of displaced persons, Zambia is likely to receive more Zimbabwean immigrants than any other country in the region because of its hospitable environment.
"Zambia seems to be the only country in the region that appears to be offering a conducive environment for asylum at the moment," Chilengi told this writer.
The Zambian Government recently granted refugee status to 12 supporters of Zimbabwe's MDC, but Home Affairs Permanent Secretary, Susan Sikaneta could not confirm whether there were more Zimbabweans seeking asylum in Zambia.
She however, disclosed that Government had stepped up security measures at the three border posts in Southern Province to ensure people were thoroughly screened before entering the country to avoid abuse of the 'asylum facility'.
Although South Africa has, by virtue of its powerful economy, been a favoured destination for Zimbabweans fleeing the economic meltdown in that country, the odds are now changing following the recent xenophobic attacks in South Africa. The attacks were targeted at foreigners, mostly Zimbabweans, and left over 60 people dead with tens of thousands displaced.
According to the Red Cross, the South African attacks which went on for over three weeks in May 2008, put up to 25,000 South African-based Zimbabweans on their path to Zambia. The figures are yet to be verified by both the Zambian Government and the United Nations High Commission for Refugees (UNHCR).
Southern African Centre for Constructive Resolution of Disputes (Saccord) executive director, Lee Habasonda said chances of other regional countries repeating the South African xenophobic attacks on Zimbabweans were high if the Zimbabwe situation was left unattended to.
"It's not just here in Zambia where Zimbabweans are being resented, even in Botswana, even in Mozambique, and even in Malawi the situation is the same," Mr Habasonda said.
SADC member countries, seemingly divided over Zimbabwe, are yet to agree on their next course in the event of tpmorrow's election re-run going on as planned.
When asked by journalists at a Press briefing on whether SADC would regard the 'new' Zimbabwean government after tomorrow's poll as legitimate or consider introducing some sanctions, President Mwanawasa said:
"As SADC, we are still thinking about whether to introduce sanctions against Zimbabwe or not, and what sanctions. I think let's not cross the bridge before we reach the river."
The SADC member countries may not be willing just as yet to cross 'that' Zimbabwe bridge but certainly, the turn of events this tomorrow, will push them to acknowledge that they actually reached 'that' bridge a long time ago.

Wednesday, July 23, 2008

MONTEVIDEO CONVENTION

The Montevideo Convention on the Rights and Duties of States was a treaty (which was later accepted as part of customary international law) signed at Montevideo, Uruguay, on December 26, 1933, at the Seventh International Conference of American States. At this conference, United States President Franklin D. Roosevelt and Secretary of State Cordell Hull declared the so-called Good Neighbor Policy, which opposed U.S. armed intervention in inter-American affairs. This was a diplomatic attempt by Franklin D. Roosevelt to reverse the perception of "Yankee imperialism," brought about by policies instituted (largely) by his predecessor, President Herbert Hoover. The convention was signed by 19 states, three with reservations (Brazil, Peru and the United States[1]).
The convention sets out the definition, rights and duties of statehood. Most well-known is article 1, which sets out the four criteria for statehood that have sometimes been recognized as an accurate statement of
customary international law:
The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.
Furthermore, the first sentence of article 3 explicitly states that "The political existence of the state is independent of recognition by the other states." This is known as the
declarative theory of statehood.
Some have questioned whether these criteria are sufficient, as they allow less-recognized entities like the
Republic of China (Taiwan) or even entirely non-recognized entities like the Principality of Sealand to claim full status as states. According to the alternative constitutive theory of statehood, a state exists only insofar as it is recognized by other states. It should not be confused with the Estrada doctrine.
There have also been attempts to further broaden the convention's definition, although they have gained less support. Founders of non-territorial
micronations commonly assert that the requirement in the Montevideo Convention of a defined territory is in some way wrong-headed, for largely unspecified reasons. Some non-territorial entities, notably the Sovereign Military Order of Malta, are indeed considered subjects of international law, but these do not aspire to statehood
Signatories
The states that signed this convention are:
Honduras, United States of America, El Salvador, Dominican Republic, Haiti, Argentina, Venezuela, Uruguay, Paraguay, Mexico, Panama, Guatemala, Brazil, Ecuador, Nicaragua, Colombia, Chile, Peru, Cuba[2]. However, as a restatement of customary international law, the Montevideo Convention merely codified existing legal norms and its principles and therefore does not apply merely to the signatories, but to all subjects of international law as a whole.[3]
The European Union, in the principal statement of its Badinter Committee,[4] follows the Montevideo Convention in its definition of a state: by having a territory, a population, and a political authority. The committee also found that the existence of states was a question of fact, while the recognition by other states was purely declaratory and not a determinative factor of statehood.[5]
Switzerland, although not a member of the European Union, adheres to the same principle, stating that "neither a political unit needs to be recognized to become a state, nor does a state have the obligation to recognize another one. At the same time, neither recognition is enough to create a state, nor does its absence abolish it."[6]
Convention signed at Montevideo December 26, 1933; Senate advice and consent to ratification, with a reservation, June 15, 1934; Ratified by the President of the United States, with a reservation, June 29, 1934; Ratification of the United States deposited with the Pan American Union July 13, 1934; Entered into force December 26, 1934; Proclaimed by the President of the United States January 18, 1935; Article 8 reaffirmed by protocol of December 23, 1936.
49 Stat. 3097; Treaty Series 881
CONVENTION ON RIGHTS AND DUTIES OF STATES
The Governments represented in the Seventh International Conference of American States:
Wishing to conclude a Convention on Rights and Duties of States, have appointed the following Plenipotentiaries:
Who, after having exhibited their Full Powers, which were found to be in good and due order, have agreed upon the following:
ARTICLE 1
The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.
ARTICLE 2
The federal state shall constitute a sole person in the eyes of international law.
ARTICLE 3
The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.
The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.
ARTICLE 4
States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.
ARTICLE 5
The fundamental rights of states are not susceptible of being affected in any manner whatsoever.
ARTICLE 6
The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.
ARTICLE 7
The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state.
ARTICLE 8
No state has the right to intervene in the internal or external affairs of another.
ARTICLE 9
The jurisdiction of states within the limits of national territory applies to all the inhabitants.
Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.
ARTICLE 10
The primary interest of states is the conservation of peace. Differences of any nature which arise between them should be settled by recognized pacific methods.
ARTICLE 11
The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.
ARTICLE 12
The present Convention shall not affect obligations previously entered into by the High Contracting Parties by virtue of international agreements.
ARTICLE 13
The present Convention shall be ratified by the High Contracting Parties in conformity with their respective constitutional procedures. The Minister of Foreign Affairs of the Republic of Uruguay shall transmit authentic certified copies to the governments for the aforementioned purpose of ratification. The instrument of ratification shall be deposited in the archives of the Pan American Union in Washington, which shall notify the signatory governments of said deposit. Such notification shall be considered as an exchange of ratifications.
ARTICLE 14
The present Convention will enter into force between the High Contracting Parties in the order in which they deposit their respective ratifications.
ARTICLE 15
The present Convention shall remain in force indefinitely but may be denounced by means of one year's notice given to the Pan American Union, which shall transmit it to the other signatory governments. After the expiration of this period the Convention shall cease in its effects as regards the party which denounces but shall remain in effect for the remaining High Contracting Parties.
ARTICLE 16
The present Convention shall be open for the adherence and accession of the States which are not signatories. The corresponding instruments shall be deposited in the archives of the Pan American Union which shall communicate them to the other High Contracting Parties.
In witness whereof, the following Plenipotentiaries have signed this Convention in Spanish, English, Portuguese and French and hereunto affix their respective seals in the city of Montevideo, Republic of Uruguay, this 26th day of December, 1933.
RESERVATIONS
The Delegation of the United States of America, in signing the Convention on the Rights and Duties of States, does so with the express reservation presented to the Plenary Session of the Conference on December 22, 1933, which reservation reads as follows:
The Delegation of the United States, in voting "yes" on the final vote on this committee recommendation and proposal, makes the same reservation to the eleven articles of the project or proposal that the United States Delegation made to the first ten articles during the final vote in the full Commission, which reservation is in words as follows:
"The policy and attitude of the United States Government toward every important phase of international relationships in this hemisphere could scarcely be made more clear and definite than they have been made by both word and action especially since March 4. I [Secretary of State Cordell Hull, chairman of U.S. delegation] have no disposition therefore to indulge in any repetition or rehearsal of these acts and utterances and shall not do so. Every observing person must by this time thoroughly understand that under the Roosevelt Administration the United States Government is as much opposed as any other government to interference with the freedom, the sovereignty, or other internal affairs or processes of the governments of other nations.
"In addition to numerous acts and utterances in connection with the carrying out of these doctrines and policies, President Roosevelt, during recent weeks, gave out a public statement expressing his disposition to open negotiations with the Cuban Government for the purpose of dealing with the treaty which has existed since 1903. I feel safe in undertaking to say that under our support of the general principle of non-intervention as has been suggested, no government need fear any intervention on the part of the United States under the Roosevelt Administration. I think it unfortunate that during the brief period of this Conference there is apparently not time within which to prepare interpretations and definitions of these fundamental terms that are embraced in the report. Such definitions and interpretations would enable every government to proceed in a uniform way without any difference of opinion or of interpretations. I hope that at the earliest possible date such very important work will be done. In the meantime in case of differences of interpretations and also until they (the proposed doctrines and principles) can be worked out and codified for the common use of every government, I desire to say that the United States Government in all of its international associations and relationships and conduct will follow scrupulously the doctrines and policies which it has pursued since March 4 which are embodied in the different addresses of President Roosevelt since that time and in the recent peace address of myself on the 15th day of December before this Conference and in the law of nations as generally recognized and accepted".
The delegates of Brazil and Peru recorded the following private vote with regard to article 11: "That they accept the doctrine in principle but that they do not consider it codifiable because there are some countries which have not yet signed the Anti-War Pact of Rio de Janeiro 4 of which this doctrine is a part and therefore it does not yet constitute positive international law suitable for codification".

Tuesday, July 22, 2008

SUDAN CONFLICT
The situation in the western Darfur region of Sudan has been labeled the worst humanitarian crisis in the world today. A conflict between rebel forces on the one side, and the Sudanese Government and the government backed Janjaweed militia on the other, has left between 10,000 and 30,000 people dead. An estimated 1.3 million civilians have been displaced from their homes. Aid agencies and governments warn of the potential for a humanitarian catastrophe brought on by famine and disease, unless urgent action is taken to improve the security of the civilian population and to provide food and shelter.
I. Population, Religion and Ethnicity
The Republic of Sudan, the largest country in Africa, lies on the western shore of the Red Sea. It is bordered by Eritrea and Ethiopia to the east, Kenya, Uganda and Democratic Republic of Congo to the south, the Central African Republic, Chad and Libya to the west, and Egypt to the north. Maps of Sudan and Darfur are included in Appendices 2 and 3. The population of around 28 million comprises a diverse range of ethnic groupings which speak over 400 languages. On one level, the civil war that has afflicted the country almost continuously since independence in 1956 can be seen as a conflict between the Arab Muslim north and the black African, and predominantly Christian or animist, south. At a more detailed level, other features of the conflict emerge. Alan Phillips, the Director of Minority Rights Group International, wrote in 1995 that attempts to portray the conflict in North-South or Arab-African terms disguise “the complexities of a war fought by multi-ethnic groups where religious differences colour struggles over access to land or political power.”1
Sudan is ruled by the National Islamic Front (NIF), an Islamist2 regime under General Omar Al-Bashir, which has its powerbase in the mainly Arab and Muslim north of the country. The centre and south is inhabited by a mixture of different African linguistic groups, which are mainly Christian or animist. Southern groups, most notably the Dinkadominated Sudanese People’s Liberation Movement/Army (SPLM/A), have repeatedly sought to gain significant autonomy or independence from Khartoum, and some have resorted to armed struggle to achieve this.
A broader overview of Sudan, including background on historical developments, the civil conflict, and the progress towards a peace settlement between North and South, can be found in Library Standard Note SN/IA/2155, Sudan.3As the conflict between the Government and the SPLM/A has subsided in recent years, tension has risen in the western region of Darfur, where the population is uniformly Muslim, but ethnically mixed. There are more than 30 ethnic groups in Darfur, but these can be divided broadly into two main categories: Arab and African. Arab and Arabicspeaking nomads inhabit the north and south of the region, whereas the centre is inhabited by African sedentary farmers, who are drawn, in the main, from the three principal African ethnic groups, the Fur, Zaghawa, and Massaleit (often referred to collectively as black Africans). No part of the region can be said to be ethnically homogenous, and there has traditionally been a degree of movement and inter-marriage between these groups and social classes, resulting in a blurring of ethnic distinctions.4 Nonetheless, in recent years, tension in the region has assumed an increasingly ethnic and racist dimension, with population groups defining themselves as Arab or Zurq (black).
The current conflict has its origins in decades of economic and political marginalisation, and tension over increasingly scarce farmland and water resources. Prolonged drought and desertification in northern Darfur pushed nomadic groups south where they came into conflict over water resources with the farming tribes of the centre. Administrative boundary changes imposed by the predominantly Arab regime in Khartoum served to alienate the farming tribes, as did government backing for the loose collection of
‘Janjaweed’ (or ‘Janjaweit’) nomadic militias, which has come to comprise several thousand fighters of mainly Arab extraction. An influx of modern weaponry in recent decades has increased the loss of life in these disputes.
Two predominantly black rebel groups, the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM), came to prominence in Darfur during 2003.5 Both groups cited concerns that Darfur would lose out politically and economically in the division of power and resources (particularly oil revenue) between Khartoum and the South, in the event of a settlement in the broader civil war. The
Brussels-based think-tank, International Crisis Group, wrote in May 2004 that: The situation mirrors the dynamic of other conflicts throughout Sudan, pitting a periphery that views itself as the victim of discrimination against a centre in Khartoum that is seen as holding all the economic and political cards. Ironically, progress in the peace talks between the government and the country's main insurgency, the Sudan People's Liberation Movement/Army (SPLA) provided the immediate trigger since the Darfur groups feared they would have little leverage after a North/South deal was concluded.6
The strong reaction of the Sudanese Government to the rebellion, at a time when it is pursuing peace with the SPLM/A in the south, has prompted speculation about its motives. US Deputy Assistant Secretary for African Affairs Charles Snyder commented on 15 June 2004:
The emergence of armed opposition in Darfur has profoundly shaken the GOS because it poses, in many respects, a greater threat than the activities of the SPLM in the south. The SPLM has never threatened the north militarily; it is a southern movement. Support for the JEM and SLM, however, comes from within the predominantly Muslim population of Darfur; radical Muslim cleric Turabi [who broke with the al-Bashir regime in 1999] has links to the JEM. Moreover, over 50 percent of the Sudanese military is from the Darfur, and that region is not far from Khartoum. A successful insurgency in Darfur would fuel potential insurgencies in other parts of the north. This, I believe, explains why the Government of Sudan has adopted such brutal tactics in Darfur. The GOS is determined to defeat the JEM and SLM at any cost to the civilian population.
II. Outbreak of conflict
Open conflict erupted in Darfur in February 2003 when the well-armed SLM/A and the JEM took advantage of turmoil within the al-Bashir regime and launched attacks on government military bases. A series of rebel successes ensued during the first half of 2003, before government forces regrouped and responded with a counter-insurgency campaign. Government-backed Janjaweed militia fighters carried out raids on communities suspected of aiding or sympathising with the rebels, and it is the humanitarian impact of these attacks which forms the core of the present crisis.
Observers have reported evidence of close coordination between the Government and the Janjaweed, with the latter receiving not only money and guns, but also close air support from Sudanese fighter jets, which have bombed villages in preparation for militia raids. Claims have also been made of rape and killings of civilians by the militias, and humanitarian organizations have accused the Government and the Janjaweed of conducting a “scorched earth” campaign in the region.
The Government has officially denied assisting the Janjaweed, although the national humanitarian aid commissioner, Dr Sulaf al-Din, acknowledged in March 2004 that: We asked all the people of Darfur that they should help in protecting themselves against the rebellion. This standard practice which we do in this country. Whenever there is an attack on a community we ask the local community to also support, to help.8
It has strenuously denied responsibility for the Janjaweed attacks on non-Arab civilians and for any violations of international humanitarian law, saying that such violations are the work of individuals outside its control.
A. Humanitarian and human rights concerns
The Acting United Nations High Commissioner for Human Rights, Bertrand Ramcharan, issued a report on 7 May 2004, in which he commented:
It is clear that there is a reign of terror in Darfur. […] [T]he current pattern of massive and gross human rights violations raises very serious concerns as to the survival, security and human dignity of those who have remained in Darfur.
The report concluded:
The current conflict in Darfur was initiated by the rebel forces, primarily constituted from the Zaghawa, Fur and Masaalit tribes. Rebel forces appear to have violated human rights and humanitarian law. Notwithstanding that fact, the mission identified disturbing patterns of massive human rights violations in
Darfur perpetrated by the Government of the Sudan and its proxy militia, many of which may constitute war crimes and/or crimes against humanity.10 The report said the situation in Darfur was characterised by the following features:
􀂃 repeated attacks on civilians by Government of Sudan military and its proxy militia forces, particularly the Janjaweed;
􀂃 the use of disproportionate force by the Government of Sudan and Janjaweed forces;
􀂃 total impunity for the Janjaweed, who have operated in close coordination with the forces of the Government of Sudan,
ô€‚ƒ a pattern of attacks that includes killing, rape, pillage, including of livestock, and destruction of property, including water sources.11 It noted that: “The rebel forces also appear to violate human rights and humanitarian law”, but said that “it was difficult for the mission to ascertain the extent of these violations”, due to the ongoing conflict, lack of access and absence of security.12 An estimated 10,000 to 30,000 people are believed to have died in the conflict thus far, although no reliable figures have been collated. Out of a pre-conflict population in Darfur of between 4 and 7 million, as many as 1.3 million are believed to have fled their homes and are now displaced within Sudan. An estimated 150,000 have crossed the poorly-marked border into eastern Chad. During May 2004 humanitarian agencies warned of the risk of severe famine, particularly as the displaced population has been unable to return home to plant crops before the start of the rainy season during June.
B. Ceasefire Agreement
A 45-day ceasefire was agreed on 8 April 2004 to allow humanitarian access to the displaced population. The N’djamena agreement, which was mediated by Chad, was finalised after a week-long delay caused by disputes over the presence of international observers. The Sudanese Government objected to the involvement of observers from the United Nations, the African Union, the European Union, the United States and the Geneva-based Centre for Humanitarian Dialogue. A compromise was reached under which only the African Union would monitor the political negotiations, and the other observers would be present for discussions on humanitarian issues. The agreement included provisions for a ceasefire commission with international representation, and a commitment from the Sudanese Government to control its allies and ensure their compliance. The parties also agreed to open negotiations on a political solution to the conflict, free all political prisoners, and facilitate the delivery of humanitarian aid.
Regular military operations by the Sudanese military dropped sharply following the ceasefire, although some clashes with rebels continued. However, attacks by the Janjaweed reportedly increased during late April and May, and the humanitarian situation continued to deteriorate, despite the renewal of the ceasefire in late May.
III. International Response
The UN Security Council issued a Presidential Statement on 25 May:The Council expresses its grave concern over the deteriorating humanitarian and human rights situation in the Darfur region of Sudan. Noting that thousands have been killed and that hundreds of thousands of people are at risk of dying in the coming months, the Council emphasizes the need for immediate humanitarian access to the vulnerable population.
The Council also expresses its deep concern at the continuing reports of largescale violations of human rights and of international humanitarian law in Darfur, including indiscriminate attacks on civilians, sexual violence, forced displacement and acts of violence, especially those with an ethnic dimension, and demands that those responsible be held accountable. The Council strongly condemns these acts which jeopardize a peaceful solution to the crisis, stresses that all parties to the N'djamena humanitarian ceasefire agreement committed themselves to refraining from any act of violence or any other abuse against civilian populations, in particular women and children, and that the Government of Sudan also committed itself to neutralizing the armed Janjaweed militias, and urges all parties to take necessary steps to put an end to violations of human rights and international humanitarian law. In this regard, the Council takes note of the recommendations of the High Commissioner for Human Rights in his report
dated May 7.
The Council reiterates its call on the parties to ensure the protection of civilians and to facilitate humanitarian access to the affected population. In that regard, the Council emphasizes the need for the Government of Sudan to facilitate the voluntary and safe return of refugees and displaced persons to their homes, and to provide protection for them, and also calls upon all parties, including opposition groups, to support these objectives. The Council calls on all parties, in accordance with the provisions of resolution 1502 (2003),13 to allow full unimpeded access by humanitarian personnel to all people in need of assistance, and to make available, as far as possible, all necessary facilities for their operations, and to promote the safety, security and freedom of movement of humanitarian personnel and their assets.
The Council, while welcoming the ceasefire agreement signed April 8 in N'Djamena, Chad, emphasizes the urgent need for all parties to observe the ceasefire and to take immediate measures to end the violence and calls on the Government of Sudan to respect its commitments to ensure that the Janjaweed militias are neutralized and disarmed. Stressing that a ceasefire commission with international representation is a central component of the April 8 agreement, the 13 UN Security Council Resolution 1502 of 26 August 2003 relates to the protection of United Nations personnel, associated personnel and humanitarian personnel in conflict zones.

Council expresses its full and active support for the efforts of the African Union to establish the ceasefire commission and protection units and calls upon the opposition groups and the Government of Sudan to facilitate the immediate deployment of monitors in Darfur, and to ensure their free movement throughout Darfur. The Council also calls upon Member States to provide generous support for the efforts of the African Union.
The Council welcomes the announcement by the Government of Sudan that it will issue visas to all humanitarian workers within 48 hours of application, eliminate the need for travel permits, and facilitate the entrance and clearance of equipment imported for humanitarian purposes. The Council acknowledges the appointment of a Fact-Finding Commission by Presidential Decree. The Council, however, is seriously concerned about continued logistical impediments prohibiting a rapid response in the face of a stark and mounting crisis and calls upon the Government to fulfil its announced commitment to cooperate fully and expeditiously with humanitarian efforts to provide assistance to the imperiled populations of Darfur, noting with particular concern that the humanitarian challenge will be aggravated by the imminent onset of the rainy season.
The Council calls upon the international community to respond rapidly and effectively to the consolidated appeal for Darfur.
The Council observes with distress the prolonged absence of an accredited Resident Coordinator/Humanitarian Coordinator and affirms the need for the immediate appointment and appropriate accreditation of a permanent Resident Coordinator/Humanitarian Coordinator to ensure daily coordination in order to address impediments to humanitarian access brought to the UN's attention by the international aid community.
The Council encourages the parties to step up their efforts to reach a political settlement to their dispute in the interest of the unity and sovereignty of Sudan.
The Council requests that the Secretary General keep it informed on the humanitarian and human rights crisis as it unfolds, and, as necessary, to make recommendations.14 At a donor alert meeting in Geneva on 3 June involving the United Nations, donor countries and aid agencies, the Executive Director of the UN World Food Programme (WFP), James T Morris, warned that acute malnutrition was becoming a major problem, especially among children, in the camps of refugees and internally displaced people.
A joint statement issued by the UN, the United States and the European Union at the conclusion of the meeting described the humanitarian and human rights crisis in Darfur as being “of extraordinary gravity, magnitude and urgency”. The statement warned that “hundreds of thousands of lives” would be at risk in Darfur “unless immediate protection and relief” were provided. The meeting appealed for at least US$236 million to help those people affected or displaced by the conflict, adding that donor assistance for the region would be required until at least 2006.
The Administrator of the US Agency for International Development (USAID), Andrew S Natsios, announced at the meeting that the US Government would provide an additional contribution of US$188.5 million in assistance.17 He also set out three elements required to contain the disaster: more resources, unimpeded access to affected populations, and most importantly security. Both parties must adhere to each and every provision of the ceasefire agreement signed in Chad in April. Specifically, the Sudanese government must stop the janjaweit militia's atrocities and violence now, as they committed themselves to do when they signed the agreement.18
On the issue of unimpeded access, he reported that: While the government of Sudan has lifted some restrictions, they have imposed new ones that still impede our efforts. We face enormous bureaucratic hurdles to get in essential equipment such as vehicles and communications gear, and nongovernmental organizations are still having difficulties getting visas for their personnel. These delay tactics are slowing the international community's efforts. If we cannot get aid into Darfur immediately, people will begin dying in large numbers. There is little time left to act. […]
We estimate right now if we get relief in we will lose a third of a million people. And if we don't, the death rates could be dramatically higher, approaching a million people.19
He also stressed the need to halt the activities of the Janjaweed:
Unless the jingaweit are put under control and these atrocities are stopped, people will not accept relief commodities in the camps. They actually tell us that even
though they are dying of starvation they don't want the food because as soon as they get it the jingaweit come in, take the food, rape the women, and shoot the men.20
On 3 June 2004 UN Secretary-General Kofi Annan issued a report on developments in the North-South peace process.21 The report, which also touched on the situation in Darfur, was produced in response to a request from the Security Council in October 2003 to initiate work on how the UN could support the implementation of a comprehensive peace agreement in Sudan. In paragraph 22 of his Concluding Observations Mr Annan welcomed the progress made in resolving the North-South conflict between the
Government and the SPLM/A, but commented: the catastrophic situation in Darfur is a problem that will make a Sudanese peace agreement much harder to implement. A meaningful agreement on Darfur will be fundamental to the success of a future United Nations role in the Sudan; to conduct a consent-based monitoring and verification operation in one part of the country while there is ongoing conflict in another part would prove politically unsustainable inside the Sudan and internationally. I urge the parties to that conflict to conclude a political agreement without delay.22
On 11 June the UN Security Council adopted Resolution 1547 in which it:
6. Endorse[d] the conclusions of the Secretary-General with regard to the situation in Sudan, in particular Darfur and the Upper Nile set out in paragraph 22 of his report, call[ed] upon the parties to use their influence to bring an immediate halt to the fighting in the Darfur region, in the Upper Nile and elsewhere, urge[d] the parties to the Ndjamena Ceasefire Agreement of 8 April 2004 to conclude a political agreement without delay, welcome[d] African Union efforts to that end, and call[ed] on the international community to be prepared for constant engagement including extensive funding in support of peace in Sudan;23 The Resolution was not adopted under Chapter VII of the UN Charter.24
On 13 June the UN Special Rapporteur on Human Rights, Asma Jahangir, provided details on her findings from a two-week trip to Sudan. She reported that: “there is no ambiguity that there is a link between some of the militias and government forces”, adding that she had received numerous accounts of extrajudicial and summary executions carried out by “government-backed militias and by the security forces themselves”:
According to credible information, members of the armed forces, the Popular Defence Forces [PDF – paramilitary units organised by the Government of Sudan] and various groups of government-sponsored militias attacked villages and summarily executed civilians. […]The government of the Sudan must make every effort to end the culture of impunity .
On 14 June the UN Secretary-General warned that the humanitarian crisis in Sudan required immediate action, commenting that: “the world must insist that the Sudanese authorities neutralize and disarm the militia, who continue to terrorize the population.
They must also allow humanitarian supplies.”

The following day the Bush administration said it was exploring measures that could be taken against individuals responsible for atrocities in Sudan, such as freezing assets held in the USA and denying visas. Deputy Assistant Secretary for African Affairs Charles Snyder said in a prepared statement before the Senate Committee on Foreign Relations: We do not intend to stand by while violence and atrocities continue in Darfur.
Our message to the government of Sudan is clear: Do what is necessary now, and we will work with you. If you do not, there will be consequences. Time is of the essence. Do not doubt our determination.27
Mr Snyder added that:
Although it is clear that the Government of Sudan is responsible for the humanitarian and human rights crises, we should not assume that the armed opposition groups are entirely without blame.28
It was reported on 19 June that the Sudanese Government had issued a presidential statement calling for the disarmament of all militias in Darfur, and specifically mentioning the need to disarm the Janjaweed. The statement said that government bodies should act “to control and pursue all outlaw groups, including rebels and Janjaweed” and to prevent incursions by militia forces into Chad.29
On 22 June it was announced that negotiations were due to start in Paris between the Sudanese Government and representatives from the JEM.

A. Deployment of Ceasefire Commission Observers
Under the N’djamena agreement, the parties to the conflict agreed to allow the deployment of observers to monitor the ceasefire. A team of 120 observers, led by the African Union, has been dispatched to Darfur. The European Union has allocated €12 million ($14.5 million) to help fund the mission. International Development Secretary
Hilary Benn announced on 9 June that:
The UK will contribute one of the six observers requested from the European Union and I hope that other contributing nations will get their observers there soon. The Government of Sudan have promised full support for the monitors and the UK has provided £2 million to help the African Union team to set itself up. In addition, the United Nations will deploy human rights monitors throughout Darfur with British financial support.30
A mission headquarters has been established in al-Fashir in northern Darfur, although as of 18 June the actual monitoring of the ceasefire had yet to begin. Mr Benn reported on 9 June that the mission would be fully operational within four to six weeks.31
The Chairman of the African Union and former president of Mali, Alpha Omar Konare, arrived in Sudan on 20 June on a two day visit to push for progress on enforcing the ceasefire.

B. Implications for Chad
During April and May 2004 there were signs that the conflict was spilling over into the neighbouring state of Chad. Camps in the east of the country host as many as 150,000 refugees from Darfur.
President Idriss Deby, who came to power in a coup in 1990, enjoys good relations with the Sudanese President, Omar al-Bashir, and observers believe he has tacitly backed the Sudanese campaign in Darfur. However, there are signs of dissent within Mr Deby’s Government and among army officers, some of whom have ethnic ties with the Darfur rebels across the border. It is believed that elements within the Chadian military have supplied arms and materiel to the rebel groups. Reports suggest that Janjaweed militias have responded by mounting cross-border raids aimed at fomenting ethnic unrest in eastern Chad and disrupting the flow of weapons. Allami Ahmat, a diplomatic adviser to the Chadian president and spokesman for Chad’s mediation effort, claimed in mid-June that: “There is a covert force seeking to transport the inter-Sudanese conflict inside Chad.”
Chadian military units were deployed to the border in late April 2004 where they have clashed repeatedly with militia fighters. The Acting United Nations High Commissioner for Human Rights, Bertrand Ramcharan, reported on 7 May 2004 that:
On a number of occasions the Janjaweed have carried out raids into Chad from Darfur in order to steal cattle and harass and attack refugees. The Chadian military has, following an agreement with the Government of the Sudan, recently begun a policy of pursuing the Janjaweed back across the border and engaging in combat, including through the use of armoured vehicles. One such incident, on 6
April 2004, is reported to have led to the deaths of two Chadian military personnel and the wounding of one other. Increased patrols of the border by Chadian military, as by the Sudanese military, are also said to have recently commenced.33
A mutiny by a Chadian army unit in the capital, N'djamena, in mid-May was put down by forces loyal to the President. Government officials claim the dispute centred on pay, but some diplomatic observers believe it was a coup attempt. Instability in Chad would have implications for the region and for the US-led campaign against terrorism. Washington believes the sub-Saharan region has become a base for Islamist militants, and US special forces have been deployed to Chad, Niger, Mauritania and Mali to train local security forces in counter-terrorism operations.

C. Position of the British Government
The Secretary of State for International Development, Hilary Benn, made a Statement to the House on 9 June following a visit to Sudan and the Darfur region. He said the crisis in Darfur was “the most serious humanitarian emergency in the world today”, adding that:
The humanitarian needs are enormous. Traditionally, Darfur has a hungry season between May and September, during the rains and before the harvest. Because of the conflict, there will be no harvest this year. Added to the long years of drought, communities are unable to cope. The rains have already started in Darfur. They will bring flash floods, make roads impassable, increase the risk of disease and render the delivery of assistance more difficult.
This is a severe crisis, which will last well into next year. Dealing with it will require action by everyone, including the Government of Sudan.
He said that during talks in Khartoum, the Sudanese Government had given a firm commitment that they would fast-track both the delivery of assistance, so that relief agencies can bring in food, medicine, vehicles and other supplies quickly, and the registration of new relief agencies that want to come and help.35
During his visit, he had announced a further commitment of £15 million, taking the total humanitarian assistance contribution by the UK to more than £34 million:
That includes the airlifting of blankets and shelter materials. The UK, the US and the European Commission have to date provided three quarters of the international response and there is an urgent need for other donors to do more.36
The UK is the second largest contributor behind the United States.37
Mr Benn went on to say that:
The main cause of the crisis is insecurity. Despite the 8 April ceasefire, fighting has continued and villages have been attacked by armed militias. Yesterday, I raised with First Vice-President Taha the urgent need for the Government of Sudan to rein in the janjaweed and other militias, condemn the acts of violence and provide adequate protection for displaced people. Equally, rebel groups must observe the ceasefire.38
The Conservative Shadow Secretary of State for International Development, John Bercow, welcomed Mr Benn’s “financial commitment and his energetic diplomacy”, adding that:
Again, the rights of innocent African people have been violated upon a scale so grotesque as to defy all but the most lurid imaginations. The Secretary of State knows that the world has a chance to ensure that Darfur does not descend into genocide. More lives are lost as each day passes. There is not a moment to lose.
Our duty in terms of humanitarian aid, diplomatic contact and unrelenting moral and political pressure is clear. In standing up to evil, rescuing its victims and ensuring the guilty are brought to book, the Secretary of State will receive stalwart and unflinching support from those on the Conservative Benches.39
In a Westminster Hall debate on the same day, the Liberal Democrat Shadow Secretary of
State for International Development, Tom Brake, commented:
The situation there is desperate […]. It is the worst humanitarian crisis that the world faces. As well as the hunger and murder, the Ebola crisis developing in the south may spread throughout the country.40
He went on: the Government and DFID have done much to alleviate the situation in Darfur and facilitate the peace process in the south, and I congratulate them wholeheartedly on that. However, it appears—I put it no stronger than that—that the UK and other countries could do more to apply the necessary pressure to the Sudanese Government to fulfil their obligations to the people of Darfur.
I hope that the Minister will set out how the UK Government can exert pressure on the Sudanese Government to ensure that the security and protection of civilians in Darfur is maximised. I welcome the statement yesterday from the Secretary of State in which he said:
"Action must also now be taken to bring irregular forces and militias under control. The Government of Sudan needs to take steps immediately to provide security to Darfurians, who told me yesterday that they will not return home until is it safe to do so."
I hope that that statement is the first notch and that pressure will be ratcheted up if the Sudanese Government do not respond.41
The Government’s longer-term objectives in resolving the crisis were spelt out on 25 May by the Parliamentary Under-Secretary of State at the FCO, Chris Mullin:
We hope that a fully-monitored ceasefire and improved humanitarian access will provide a conducive atmosphere for inclusive political talks on the future of Darfur to begin as soon as possible.42
The British Government believes the deployment of ceasefire monitors will help create such an atmosphere. The Prime Minister’s special envoy to Sudan, Alan Goulty, said in late May that he did not support calls for military intervention in Darfur or for the imposition of sanctions on the Sudanese Government:
In the long term, threats of sanctions don't seem likely to produce immediate action and immediate action is what we need. The more time we spend dithering, the more people will die.43
The Department for International Development is producing updates on the crisis, which can be accessed online.44

D. Debate on the International Response
The vacillation of the international community during the Rwandan genocide of 1994, the tenth anniversary of which was observed in April 2004, has been cited by some observers as a warning of what might come to pass in Sudan if prompt and robust action is not taken.
A debate has developed over terminology and whether the events in Darfur can be described as “ethnic cleansing” and/or “genocide”. “Ethnic cleansing” is a colloquial term used by the media and other observers, and has no legal meaning, although it refers to acts that may constitute crimes in themselves, such as the deportation or forcible transfer of population.45 Furthermore, the term “genocide” has a distinct legal definition under the 1948 Genocide Convention,46 and examples of ethnic cleansing in the Balkans have now been recognised as genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY).
Responding to a question on whether the situation in Darfur constituted genocide, US Secretary of State Colin Powell commented on 11 June that the issue was under consideration by lawyers and policy makers:
I don't think they have - [...] come to a conclusion yet as to whether all of the criteria that are used to make a determination of genocide have been met yet...
But I do know there is a review under way.
You know these turn out to be almost legal matters of definition, and I'm not prepared to say what is the correct legal term for what's happening. All I know is that there are at least a million people who are desperately in need, and many of them will die if we can't get the international community mobilised and if we can't get the Sudanese to cooperate with the international community. And it won't make a whole lot of difference after the fact what you've called it.47
Some allege that the US and others have muted their condemnation of the Khartoum Government for fear of derailing the broader peace process with the south. Such allegations are disputed by Washington, which says it has informed the Sudanese Government that there can be no normalisation of relations while attacks by the Janjaweed continue.48
Commentators have expressed a variety of views on how the international community might intervene to resolve the crisis. James Smith, the director of the Aegis Trust, an organisation that aims to prevent genocide, wrote in The Times of 18 June that the crisis in Darfur represents “the most blatant threat of genocide since Rwanda in 1994.” He likened UN Security Council Resolution 1547 on Sudan to the weak resolution passed by the Council during the Rwandan genocide, arguing that:
A stronger Security Council resolution is required which should be clear about the consequences if there is no change within two weeks. In Rwanda the international community wasted time on ceasefires, which allowed the militias, supported by the army, to continue killing. The resolution should impose a no-fly zone, to stop the Sudanese bombing civilians, and economic and political sanctions. The UN should also reserve the right to send a peacekeeping force. The thought of foreign troops entering a Muslim nation so soon after the Iraq war is unlikely to stir enthusiasm. We should remember, though, that it is Muslims who need to be rescued.
The Islamic world should take the lead in saving them, especially Pakistan and Algeria, which are currently Security Council members.
Investigators should be sent to gather evidence of atrocities, whether committed by the militiamen on the ground or planned by the generals in Khartoum, so that the perpetrators can be held to account at the International Criminal Court.
Britain can be proud that it is the second-largest contributor to the humanitarian effort in Sudan. But it does not make sense to send aid while treating the architects of the crime with such normality. The Sudanese Finance Minister was in London yesterday to discuss debt relief. His country is in debt in part because it buys aircraft which it is using to kill civilians. Debt relief should be granted only when Darfurians can return home in safety.
Now is an opportunity to bring hope, to show that a world can exist in which the strong will defend the weak irrespective of their national interests. Britain should use its position as a permanent member of the Security Council. We can encourage Pakistan or Algeria to propose a new resolution on Darfur that has teeth. Unlike the one last week, in which the 15 member states decided "to remain seized of the matter" -while people perish.49
The diplomatic editor of the Guardian, Ewen MacAskill, writing on 21 June, disagreed with the calls for military intervention:
British government policy is to resist such calls and instead concentrate on diplomacy, maintaining dialogue with the Sudanese government and trying to win concessions through persuasion or pressure. On this issue, the British government may well be right.
As Iraq demonstrated, diplomacy - however flawed - is preferable to the uncertainty of military intervention. Smith calls for a no-fly zone in Darfur, but it is too late for that. The Janjaweed, supported by Sudanese bombing raids, have completed their work over the last year. The villages are empty.
Nor does military action appear necessary to ensure the supply of humanitarian aid. The Sudanese government had been blocking access by humanitarian agencies to Darfur and delaying the distribution of food and medical supplies. But diplomacy has succeeded in persuading the Sudanese government to ease these restrictions.
The other cry of those who feel something must be done is that international sanctions should be imposed against Sudan, another strategy largely discredited by the Iraq experience. The US, mindful that Sudan harboured Osama bin Laden in the 1990s, still maintains trade sanctions against it. Blanket sanctions by the international community would add to the suffering of an already impoverished population, as happened in Iraq after the first Gulf war.
The final logic of intervention is the overthrow of the government. That would provide the UN with a problem comparable to Iraq. Separate from Darfur, the Sudanese government has been engaged for over 20 years in a civil war with the south of the country. An agreement to end that war is close to completion, but remove the government and that would be in jeopardy.
The better approach is to try to work with the Sudanese government, no matter how cynical it is. Diplomatic pressure has to be increased on the Sudanese government to begin policing Darfur, in the first case by protecting the camps. On the face of it, that seems like asking a cat to protect the mice. But the Sudanese government is showing signs of embarrassment over what is happening in Darfur and could yet be forced to rein in the Janjaweed.


Sunday, July 13, 2008

NATIONAL TERRITORY

NATIONAL TERRITORY
Article 1, 1987 PHIL. CONSTITUTION
The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.

In short, the Philippine territory consists of: (1) the Philippine archipelago, and (2) all territories over which the Philippines have sovereignty or jurisdiction.
1. THE PHILIPPINE ARCHIPELAGO

a. Treaty Limits

1. TREATY OF PARIS of December 10, 1898.
Article III. Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands lying within the following line:A line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bachi, from the one hundred and eighteenth (118th) to the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich, thence along the one hundred and twenty seventh (127th) degree meridian of longitude east of Greenwich to the parallel of four degrees and forty five minutes (4° 45') north latitude, thence along the parallel of four degrees and forty five minutes (4° 45') north latitude to its intersection with the meridian of longitude one hundred and nineteen degrees and thirty five minutes (119° 35') east of Greenwich, thence along the meridian of longitude one hundred and nineteen degrees and thirty five minutes (119° 35') east of Greenwich to the parallel of latitude seven degrees and forty minutes (7° 40') north, thence along the parallel of latitude of seven degrees and forty minutes (7° 40') north to its intersection with the one hundred and sixteenth (116th) degree meridian of longitude east of Greenwich, thence by a direct line to the intersection of the tenth (10th) degree parallel of north latitude with the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich, and thence along the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich to the point of beginning. The United States will pay to Spain the sum of twenty million dollars ($20,000,000) within three months after the exchange of the ratifications of the present treaty.

2. Treaty of Washington of November 7, 1900.
3. Treaty of January 2, 1930 between the United States and Great Britain.


b. Method of determining the baselines

1. RA 3046 (17 June 1961)
Determine appropriate points of the outer most Islands of the archipelago, and then connect them by means of a straight line until all islands are surrounded or enclosed by the imaginary straight line.
“The baselines from which the territorial sea of the Philippines is determined consist of straight lines joining appropriate points of the outermost islands of the archipelago.”

2. RA 5446 (8 September 1968)
Sec. 2 of the Act provides that the definition of the territorial sea of the Philippine archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the republic of the Philippines has acquired dominion and sovereignty.

Uses of the baseline
1. Determine what is internal water (all water inside the baseline, whether or not more than 12 miles from the shore)
2. Determine the 200 mile EEZ
3.
Archipelagic Doctrine
The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.
The main purpose of the archipelagic doctrine is to protect the territorial interest of an archipelago.

2. OTHER TERRITORIES OVER WHICH THE PHILIPPINES HAS SOVEREIGNTY OR JURISDICTION
PD 1596 (June 11, 1978)
Claims the Kalayaan Group of Islands as part of the Philippine territory on the basis of historic rights and legal title.
The claim was made “by reason of history, indispensable need, and effective occupation and control established in accordance with international law.”


3. THE TERRITORIAL SEA, THE SEABED, THE SUBSOIL, THE INSULAR SHELVES AND OTHER SUBMARINE AREAS

“Territorial sea” means water outside the baseline extending up to 12 miles.

“Internal water” refers to water within the baseline.

“Insular shelf” means the land which is submerged under water which may extend beyond 12 miles as long as it is not more than 300 ft. deep. It is also known as intercontinental shelf.


4. EXCLUSIVE ECONOMIC ZONE

PD 1599 (June 11, 1978)
There is established an exclusive economic zone extending “to a distance of two hundred nautical miles beyond and from the baselines from which the territorial sea is measured. Provided that, where the outer limits of the zone as thus determined overlap the exclusive economic zone of an adjacent or neighboring state, the common boundaries shall be determined by agreement with the state concerned or in accordance with pertinent generally recognized principles or international law on delimitation.” (Sec. 1 thereof.)
Other states shall enjoy in the exclusive economic zone freedoms with respect to navigations and over flight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea relating to navigation and communication. (Sec. 4 thereof.)

UN CONVENTION ON THE LAW OF THE SEA (April 30, 1982)
The exclusive economic zone which shall not extend beyond 200 nautical miles from baselines, from which the breadth of the territorial sea is measured, is recognized in the UNCLOS, of which the Philippines is a signatory. Its concept is that although it is not part of the territory, exclusive economic benefit is reserved for the country.

Sunday, July 6, 2008

PRINCIPAL ORGANS OF THE UNITED NATIONS

1. WHAT ARE THE PRINCIPAL ORGANS OF THE UNITED NATIONS?
The six principal organs of the United Nations are as follows:
(1) The General Assembly
(2) The Security Council
(3) The Economic and Social Council
(4) The Trusteeship Council
(5) The International Court Justice
(6) The Secretariat
There are also subsidiary organs which the Charter itself has created or which it allows to be created whenever necessary by the General Assembly, the Security Council or the Economic and Social Council.
2. WHAT IS THE GENERAL ASSEMBLY?
The General Assembly is the central organ of the United Nations. All members are represented in it and it exercises powers and functions with respect to the other organs. It is the principal deliberative body of the organization and is vested with jurisdiction over matters concerning the internal machinery and operations of the United Nations.
The current President of the 62nd session of the United Nations General Assembly is DR. SRGJAN KERIM. He is a seasoned diplomat, economist, scholar and businessman with a wealth of experience in international political and economic affairs and extensive knowledge of the United Nations.
COMPOSITION :
The General Assembly consists of all the members of the United Nations, each of which is entitled to send no more than five delegates and five alternates and as many technical and other personnel as it may need.
Though they have multiple delegates, however, each delegation is entitled to only one vote in the decisions to made by the General Assembly.
SESSIONS:
Regular sessions are held every year beginning the 3rd Tuesday of September.
Special sessions may be called at the request of the Security Council, majority of the member states, or one member with the concurrence of the majority.
VOTING RULES:
Each member of the United Nations has one vote in the General Assembly.
"IMPORTANT QUESTIONS" which include recommendations concerning international peace and security, election of members of the Councils, admission and expulsion of members and suspension of the rights and privileges of membership questions relating to the trusteeship system and budgetary matters are decided by two-thirds of those present and voting. All other matters, including the determination of whether a question is important or not, are decided by simple majority of those present and voting.
FUNCTIONS:
(1) DELIBERATIVE. The General Assembly is empowered to discuss principles regarding the maintenance of international peace and security and may take appropriate measures toward this end.
(2) SUPERVISORY. It receives and considers reports from the other organs of the United Nations, makes recommendations, approves agreements, supervises and administer it.
(3) ELECTIVE. Important voting functions are also vested in the General Assembly, such as election of members in the other organs of United Nations.
(4) BUDGETARY. It is also the General Assembly that controls the finances of the United nations, approves budget and apportions expenses among the members.
(5) CONSTITUENT. The General Assembly also participates in the admission of members and in the amendment of the U. N. Charter
3. WHAT IS THE SECURITY COUNCIL?
It is the organ of the United nations primarily responsible for the maintenance of international peace and security. This resposibility makes the Security Council a key influence in the direction of the affairs not only of the Organization but the entire international community as well.
COMPOSITION:
The Security Council is composed of fifteen members, five of which are permanent. The so-called Big Five are China, France, Russia, the United Kingdom and the United States. The other ten members are elected for two-year terms by the General assembly, five from the African and Asian states, one from Eastern European states, two from Latin American states and two from Western European and other states. Their terms have been so staggered as to provide for the retirement of one-half of the every year. These members are not eligible for immediate re-election.
Chairmanship of the Security Council is rotated monthly on the basis of the English alphabetical order of the names of the members.
SESSIONS:
The Security Council is required to function continuously and to hold itself in readiness in case of threat to or actual breach of international peace. For this purpose, all members should be represented at all times at the seat of the Organization.

VOTING RULES: (YALTA VOTING FORMULA)
Each member of the Security Council has one vote, but distinction is made between the permanent and the non-permanent members in the decisions of substantive questions.
According to Yalta voting formula, as it is called, decision on procedural matters is to be made by the affirmative vote of any nine members of the Security Council. Decision on non-procedural or substantive matters, on the other hand, requires concurrence of also nine members of the body, but including all the permanent members.

4. WHAT IS THE ECONOMIC AND SOCIAL COUNCIL?
Recognizing that the promotion “of social progress and better standards of life in larger freedom “ is indispensable to world harmony and order, the United Nations Charter has created an organ charged with the particular duty of pursuing this objective. This is the Economic and Social Council.

COMPOSITION:
The Economic and Social Council has fifty-four members elected by the General Assembly for the staggered term of three years, with the right to run for re-election.

SESSIONS:
The Economic and Social Council normally holds two sessions a year, one beginning in January and the other in June. It may also meet in special session at the request of a majority of its members.

VOTING RULES:
Each member of the Economic and Social Council has one vote, and decisions are reached by majority of those present and voting.
5. WHAT IS THE TRUSTEESHIP COUNCIL?
It is the principal organ of the United Nations which is directly charged with the administration of the international trusteeship system.

COMPOSITION:
The Trusteeship Council is composed of: a) members of the United Nations administering trust territories; b) members of the Big Five not administering trust territories; and c) as many members of the United Nations elected for three-year terms by the General Assembly as may be necessary to insure that the total membership of the Council is equally divided between those which administer trust territories and those which do not.

SESSIONS:
It meets twice a year, generally in January and June. It may also meet in special session upon request or with concurrence of the majority of the members of the Trusteeship council.

VOTING RULES:
Each member of the Trusteeship Council has one vote and decisions are reached by majority of those present and voting.

6. WHAT IS THE INTERNATIONAL COURT JUSTICE?
It is the judicial organ of the United Nations and replaced the Permanent Court of International Justice under the defunct League of Nations.

COMPOSITION:
The Court is composed of fifteen members who must be of high moral character and possess the qualifications required in their respective countries for appointment to the highest judicial office or are jurisconsults of recognized competence in international law.

TERM OF OFFICE OF THE JUDGES:
They are elected for the term of nine years, staggered at three year intervals by dividing the judges first elected into three equal groups and assigning them by lottery terms of three, six and nine years respectively. Immediate re-election is allowed.

SESSIONS:
The Court shall remain permanently in session at the Hague or elsewhere, as it may decide, except during the judicial vacations the dates and duration of which shall fix.

VOTING RULES:
All questions before the Court are decided by a majority of the judges present, the quorum being nine when it is sitting en banc. In case of tie, the President or his substitute shall have a casting vote.
7. WHAT IS THE SECRETARIAT?
The Chief administrative organ of the United Nations is the Secretariat, which is headed by the Secretary General. The Secretary-General is chosen by the General Assembly upon recommendation of the Security Council. His term is fixed at five years by resolution of the General Assembly, and he may be re-elected.