Implication on treaty

Bayan vs Executive Secretary October 10,2000 – The supreme court held that the visiting forces agreement (VFA) is constitutional , having been duly concurred in by the Philippine Senate. The Republic of the Philippines cannot require the United States to submit the agreement to the US senate for concurrence, for that would be giving a strict construction to the phrase “recognize as a treaty”. It is inconsequential that the US treats the VFA as merely an executive agreement because, under international law, an executive agreement is just binding as a treaty.
While in the case of Abaya vs Hon Hermogenese Ebdane(july 14,2007) uses the fundamental principle of international law of pacta sunt servanda which is, in fact, embodied in Section 4 of RA 9184 as it provides that "any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed.

2. In the case of Akbayan vs Aquino decided on july 16,2008 it provides that
the core meaning of the phrase “sole organ of the nation in its external relations” which means the power to directly negotiate treaties and international agreements is vested by our Constitution only in the Executive. Congress has the power to regulate commerce with foreign nations but does not have the power to negotiate international agreements directly, while in the case of Pimentel v. Executive Secretary July 6,2005 In the realm of treaty-making, the President has the sole authority to negotiate with other states ,the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him.

3. In the case of Lim vs Executive secretary dated April 11,2002 the court ruled that our constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress

while in the case of

Commissioner vs Sc Johnson and son dated june 25,1999 the court ruled that the purpose of international agreements is to reconcile the national fiscal legislations of the contracting parties in order to help the taxpayer avoid simultaneous taxation in two different jurisdictions.

Govt of Hongkong vs Judge Olalia

Extradition case

Govt of Hongkong vs Judge Olalia

Honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region, Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extradites’ rights to life, liberty, and due process. Where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party.

We should not deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extradite from fleeing our jurisdiction.

“clear and convincing evidence” should be used in granting bail in extradition cases

The potential extradite must prove by “clear and convincing evidence” that he is not a flight risk and will abide with all the orders and processes of the extradition court.

Vienna Convention on diplomatic and consular relations

Vienna Convention on Diplomatic Relations and Consular Relations

The Vienna Conventions on Diplomatic Relations is an international treaty on diplomatic intercourse and the privileges and immunities of a diplomatic mission.

Adopted on April 18, 1961 by the United Nations Conference on Diplomatic Intercourse and Immunities held in Vienna, Austria, from March 2 to April 14.

The Conference also adopted the Optional Protocol concerning the Acquisition of Nationality, the Optional Protocol concerning the Compulsory Settlement of Disputes, the Final Act and four resolutions annexed to that Act. Done at Vienna, on April 18, 1961.

It was first implemented on April 24, 1964.

The Vienna Convention on Consular Relations (or VCCR) was completed in 1963 as a multilateral treaty to codify consular practices that developed through customary international law, numerous bilateral treaties, and a number of regional treaties.

The VCCR enumerates basic legal rights and duties of signatory States, including:• the establishment and conduct of consular relations, by mutual consent, and

• the privileges and immunities of consular officers and offices from the laws of the “receiving State” (the country where the foreign consular office has been established).

Article 36 of the VCCR requires that foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest. If the detained foreign national so requests, the police must fax that notice to the embassy or consulate, which can then check up on the person. The notice to the consulate can be as simple as a fax, giving the person's name, the place of arrest, and, if possible, something about the reason for the arrest or detention.

VIENNA CONVENTION ON DIPLOMATIC RELATIONS AND OPTIONAL PROTOCOLSDONE AT VIENNA, ON 18 APRIL 1961

Article IFor the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:(a) the "head of the mission" is the person charged by the sending State with the duty of acting in that capacity;(b) the "members of the mission" are the head of the mission and the members of the staff of the mission;(c) the "members of the staff of the mission" are the members of the diplomatic staff, of the administrative and technical staff and ofthe service staff of the mission;(d) the "members of the diplomatic staff" are the members of the staff of the mission having diplomatic rank;(e) a "diplomatic agent" is the head of the mission or a member of the diplomatic staff of the mission;(f) the "members of the administrative and technical staff" are themembers of the staff of the mission employed in the administrative and technical service of the mission;(g) the "members of the service staff" are the members of the staff of the mission in the domestic service of the mission;(h) a "private servant" is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;(i) the "premises of the mission" are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.

Article 2The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.

Article 3

1. The functions of a diplomatic mission consist inter alia in:(a) representing the sending State in the receiving State;(b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;(c) negotiating with the Government of the receiving State;(d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;(e) promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.2. Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission.

Article 41. The sending State must make certain that the agr‚ment of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.2. The receiving State is not obliged to give reasons to the sending State for a refusal of agr‚ment.Article 51. The sending State may, after it has given due notification to the receiving States concerned, accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more than one State, unless there is express objection by any of the receiving States.2. If the sending State accredits a head of mission to one or more other States it may establish a diplomatic mission headed by a charge d'affaires ad interim in each State where the head of mission has not his permanent seat.3. A head of mission or any member of the diplomatic staff of the mission may act as representative of the sending State to any international organization.Article 6Two or more States may accredit the same person as head of mission to another State, unless objection is offered by the receiving State.Article 7Subject to the provisions of Articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attaches, the receiving State may require their names to be submitted beforehand, for its approval.Article 81. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.2. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.Article 91. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission.Article 101. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of:(a) the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission;(b) the arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission; (c) the arrival and final departure of private servants in the employ of persons referred to in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons; (d) the engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities.2. Where possible, prior notification of arrival and final departure shall also be given.Article 111. In the absence of specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission.2. The receiving State may equally, within similar bounds and on a nondiscriminatory basis, refuse to accept officials of a particular category.Article 12The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established.Article 131. The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.2. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission.Article 141. Heads of mission are divided into three classes, namely:(a) that of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank; (b) that of envoys, ministers and internuncios accredited to Heads of State; (c) that of charges d'affaires accredited to Ministers for Foreign Affairs.2. Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class.Article 15The class to which the heads of their missions are to be assigned shall be agreed between States.Article 161. Heads of mission shall take precedence in their respective classes in the order of the date and time of taking up their functions in accordance with Article 13.2. Alterations in the credentials of a head of mission not involving any change of class shall not affect his precedence.3. This article is without prejudice to any practice accepted by the receiving State regarding the precedence of the representative of the Holy See.Article 17The precedence of the members of the diplomatic staff of the mission shall be notified by the head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.Article 18The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class.Article 191. If the post of head of the mission is vacant, or if the head of the mission is unable to perform his functions, a charge d'affaires ad interim shall act provisionally as head of the mission. The name of the charge d'affaires ad interim shall be notified, either by the head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.2. In cases where no member of the diplomatic staff of the mission is present in the receiving State, a member of the administrative and technical staff may, with the consent of the receiving State, be designated by the sending State to be in charge of the current administrative affairs of the mission.Article 20The mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission, and on his means of transport.Article 211. The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way.2. It shall also, where necessary, assist missions in obtaining suitable accommodation for their members.Article 221. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.Article 231. The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.2. The exemption from taxation referred to in this Article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission.Article 24The archives and documents of the mission shall be inviolable at any time and wherever they may be.Article 25The receiving State shall accord full facilities for the performance of the functions of the mission.Article 26Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.Article 271. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.3. The diplomatic bag shall not be opened or detained.4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.Article 28The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes.Article 29The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.Article 301. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolabilityArticle 311. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.2. A diplomatic agent is not obliged to give evidence as a witness.3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.Article 321. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State.2. Waiver must always be express.3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.Article 331. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.2. The exemption provided for in paragraph 1 of this Article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:(a) that they are not nationals of or permanently resident in the receiving State; and(b) that they are covered by the social security provisions which may be in force in the sending State or a third State.3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.5. The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future.Article 34A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;(b) dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;(c) estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of Article 39;(d) dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;(e) charges levied for specific services rendered;(f) registration, court or record fees, mortgage dues and stamp duty,with respect to immovable property, subject to the provisions ofArticle 23.Article 35The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.Article 361. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:(a) articles for the official use of the mission;(b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.Article 371. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation.3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33.4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.Article 381. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.Article 391. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.Article 401. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their country.2. In circumstances similar to those specified in paragraph 1 of this Article, third States shall not hinder the passage of members of the administrative and technical or service staff of a mission, and of members of their families, through their territories.3. Third States shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving State. They shall accord to diplomatic couriers, who have been granted a passport visa if such visa was necessary, and diplomatic bags in transit the same inviolability and protection as the receiving State is bound to accord.4. The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the territory of the third State is due to force majeure.Article 411. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.2. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.Article 42A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity.Article 43The function of a diplomatic agent comes to an end, inter alia:(a) on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;(b) on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.Article 44The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.Article 45If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled:(a) the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;(b) the sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State;(c) the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State.Article 46A sending State may with the prior consent of a receiving State, and at the request of a third State not represented in the receiving State, undertake the temporary protection of the interests of the third State and of its nationals.Article 471. In the application of the provisions of the present Convention, the receiving State shall not discriminate as between States.2. However, discrimination shall not be regarded as taking place:(a) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State;(b) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.Article 48The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention, as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria and subsequently, until 31 March 1962, atthe United Nations Headquarters in New York.Article 49The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.Article 50The present Convention shall remain open for accession by any State belonging to any of the four categories mentioned in Article 48. The instruments of accession shall be deposited with the Secretary-General of the United Nations.Article 511. The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.Article 52The Secretary-General of the United Nations shall inform all States belonging to any of the four categories mentioned in Article 48:(a) of signatures to the present Convention and of the deposit of instruments of ratification or accession, in accordance with Articles 48, 49 and 50; (b) of the date on which the present Convention will enter into force, in accordance with Article 51.Article 53The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States belonging to any of the four categories mentioned in Article 48.IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention.DONE at Vienna, this eighteenth day of April one thousand nine hundred andsixty-one.VIENNA CONVENTION ON CONSULAR RELATIONS AND OPTIONAL PROTOCOLSDONE AT VIENNA, ON 24 APRIL 1963The States Parties to the present Convention,Recalling that consular relations have been established between peoples since ancient times,Having in mind the Purposes and Principles of the Charter of the United Nation concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,Considering that the United Nations Conference on Diplomatic Intercourse and Immunities adopted the Vienna Convention on Diplomatic Relations which was opened for signature on 18 April 1961,Believing that an international convention on consular relations, privileges and immunities would also contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States,Affirming that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention,Have agreed as follows:Article 1DEFINITIONS1. For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them:(a) "consular post" means any consulate-general, consulate, vice-consulate or consular agency;(b) "consular district" means the area assigned to a consular post for the exercise of consular functions;(c) "head of consular post" means the person charged with the duty of acting in that capacity;(d) "consular officer" means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions;(e) "consular employee" means any person employed in the administrative or technical service of a consular post;(f) "member of the service staff" means any person employed in the domestic service of a consular post;(g) "members of the consular post" means consular officers, consular employees and members of the service staff;(h) "members of the consular staff" means consular officers, other than the head of a consular post, consular employees and members of the service staff;(i) "member of the private staff" means a person who is employed exclusively in the private service of a member of the consular post;(j) "consular premises" means the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post;(k) "consular archives" includes all the papers, documents, correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indexes and any article of furniture intended for their protection or safekeeping.2. Consular officers are of two categories, namely career consular officers and honorary consular officers. The provisions of Chapter II of the present Convention apply to consular posts headed by career consular officers; the provisions of Chapter III govern consular posts headed by honorary consular officers.3. The particular status of members of the consular posts who are nationals or permanent residents of the receiving State is governed by Article 71 of the present Convention.CHAPTER ICONSULAR RELATIONS IN GENERALSection I ESTABLISHMENT AND CONDUCT OF CONSULAR RELATIONSArticle 2 ESTABLISHMENT OF CONSULAR RELATIONS1. The establishment of consular relations between States takes place by mutual consent.2. The consent given to the establishment of diplomatic relations between two States implies, unless otherwise stated, consent to the establishment of consular relations.3. The severance of diplomatic relations shall not ipso facto involve the severance of consular relations.Article 3EXERCISE OF CONSULAR FUNCTIONSConsular functions are exercised by consular posts. They are also exercised by diplomatic missions in accordance with the provisions of the present Convention.Article 4ESTABLISHMENT OF A CONSULAR POST1. A consular post may be established in the territory of the receiving State only with that State's consent.2. The seat of the consular post, its classification and the consular district shall be established by the sending State and shall be subject to the approval of the receiving State.3. Subsequent changes in the seat of the consular post, its classification or the consular district may be made by the sending State only with the consent of the receiving State.4. The consent of the receiving State shall also be required if a consulate-general or a consulate desires to open a vice-consulate or a consular agency in a locality other than that in which it is itself established.5. The prior express consent of the receiving State shall also be required for the opening of an office forming part of an existing consular post elsewhere than at the seat thereof.Article 5CONSULAR FUNCTIONSConsular functions consist in:(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;(b) furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;(c) ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;(d) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;(f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending State in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required withrespect to such persons;(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;(j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;(k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;(l) extending assistance to vessels and aircraft mentioned in sub-paragraph (k) of this Article and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship's papers, and,without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen in so far as this may be authorized by the laws and regulations of the sending State;(m) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the internationalagreements in force between the sending State and the receiving State.Article 6EXERCISE OF CONSULAR FUNCTIONS OUTSIDE THE CONSULAR DISTRICTA consular officer may, in special circumstances, with the consent of the receiving State, exercise his functions outside his consular district.Article 7EXERCISE OF CONSULAR FUNCTIONS IN A THIRD STATEThe sending State may, after notifying the States concerned, entrust a consular post established in a particular State with the exercise of consular functions in another State, unless there is express objection by one of the States concerned.Article 8EXERCISE OF CONSULAR FUNCTIONS ON BEHALF OF A THIRD STATEUpon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State.Article 9CLASSES OF HEADS OF CONSULAR POSTS1. Heads of consular posts are divided into four classes, namely: (a) consuls-general;(b) consuls; (c) vice-consuls;(d) consular agents.2. Paragraph 1 of this Article in no way restricts the right of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts.Article 10APPOINTMENT AND ADMISSION OF HEADS OF CONSULAR POSTS1. Heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State.2. Subject to the provisions of the present Convention, the formalities for the appointment and for the admission of the head of a consular post are determined by the laws, regulations and usages of the sending State and of the receiving State respectively.Article 11THE CONSULAR COMMISSION OR NOTIFICATION OF APPOINTMENT1. The head of a consular post shall be provided by the sending State with a document, in the form of a commission or similar instrument, made out for each appointment, certifying his capacity and showing, as a general rule, his full name, his category and class, the consular district and the seat of the consular post.2. The sending State shall transmit the commission or similar instrument through the diplomatic or other appropriate channel to the Government of the State in whose territory the head of a consular post is to exercise his functions.3. If the receiving State agrees, the sending State may, instead of a commission or similar instrument, send to the receiving State a notification containing the particulars required by paragraph 1 of this Article.Article 12THE EXEQUATUR1. The head of a consular post is admitted to the exercise of his functions by an authorization from the receiving State termed an exequatur, whatever the form of this authorization.2. A State which refuses to grant an exequatur is not obliged to give to the sending State reasons for such refusal.3. Subject to the provisions of Articles 13 and 15, the head of a consular post shall not enter upon his duties until he has received an exequatur.Article 13PROVISIONAL ADMISSION OF HEADS OF CONSULAR POSTSPending delivery of the exequatur, the head of a consular post may be admitted on a provisional basis to the exercise of his functions. In that case, the provisions of the present Convention shall apply.Article 14NOTIFICATION TO THE AUTHORITIES OF THE CONSULAR DISTRICTAs soon as the head of a consular post is admitted even provisionally to the exercise of his functions, the receiving State shall immediately notify the competent authorities of the consular district. It shall also ensure that the necessary measures are taken to enable the head of a consular post to carry out the duties of his office and to have the benefit of the provisions of the present Convention.Article 15TEMPORARY EXERCISE OF THE FUNCTIONS OF THE HEAD OF A CONSULAR POST1. If the head of a consular post is unable to carry out his functions or the position of head of consular post is vacant, an acting head of post may act provisionally as head of the consular post.2. The full name of the acting head of post shall be notified either by the diplomatic mission of the sending State or, if that State has no such mission in the receiving State, by the head of the consular post, or, if he is unable to do so, by any competent authority of the sending State, to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry. As a general rule, this notification shall be given in advance. The receiving State may make the admission as acting head of post of a person who is neither a diplomatic agent nor a consular officer of the sending State in the receiving State conditional on its consent.3. The competent authorities of the receiving State shall afford assistance and protection to the acting head of post. While he is in charge of the post, the provisions of the present Convention shall apply to him on the same basis as to the head of the consular post concerned. The receiving State shall not, however, be obliged to grant to an acting head of post any facility, privilege or immunity which the head of the consular post enjoys only subject to conditions not fulfilled by the acting head of post.4. When, in the circumstances referred to in paragraph 1 of this Article, a member of the diplomatic staff of the diplomatic mission of the sending State in the receiving State is designated by the sending State as an acting head of post, he shall, if the receiving State does not object thereto, continue to enjoy diplomatic privileges and immunities.

Political law bar questions 2008

1.May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why.

Yes. A treaty may violate international law when at the time of its conclusion, it conflicts with a peremptory norm of general international law (jus cogens). (Vienna Convention on the Law of Treaties, Arts. 52 & 53)

- III -
The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved? (6%)

It should be resolve by the Supreme court by observing the three different powers or functions of the three branches of the government .Our Consttitution specifically provides that in the realm of treaty-making, the President has the sole authority to negotiate with other states but it also provides the limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him.

REPUBLIC ACT No. 75

REPUBLIC ACT No. 75

AN ACT TO PENALIZE ACTS WHICH WOULD IMPAIR THE PROPER OBSERVANCE BY THE REPUBLIC AND INHABITANTS OF THE PHILIPPINES OF THE IMMUNITIES, RIGHT, AND PRIVILEGES OF DULY ACCREDITED FOREIGN DIPLOMATIC AND CONSULAR AGENTS IN THE PHILIPPINES

Section 1. Any person who shall falsely assume and take upon himself to act as a diplomatic, consular, or any other official of a foreign government duly accredited as such to the Government of the Republic of the Philippines with intent to defraud such foreign government or the Government of the Philippines, or any person, or in such pretended character shall demand or obtain, or attempt to obtain from person or from said foreign government or the Government of the Philippines, or from any officer thereof, any money, paper, document, or other thing, of value, shall be fined not more than five thousand pesos, or shall be imprisoned for not more than five years, or both, in addition to the penalties that may be imposed under the Revised Penal Code.

Section 2. Any person, other than a diplomatic or consular officer or attach�, who shall act in the Republic of the Philippines as an agent of a foreign government without prior notification to, and registration with, the Secretary of Foreign Affairs shall be fined not more than five thousand pesos, or imprisoned not more than five years, or both, aside from other penalties that may be imposed by law.

Section 3. Any person, who with intent to deceive or mislead, within the jurisdiction of the Republic, wear any naval, military, police, or other official uniform, decoration, or regalia of any foreign State, nation or government with which the Republic of the Philippines is at peace, or any uniform, decoration or regalia so nearly resembling the same as to be calculated to deceive, unless such wearing thereof be authorized by such State, nation, or government, shall upon conviction, be punished by a fine not exceeding two hundred pesos or imprisonment not exceeding six months, or by both such fine and imprisonment.1awphil-itc-alf

Section 4. Any writ or process sued out or prosecuted by any person in any court of the Republic of the Philippines, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign State, authorized and received as such by the President, or any domestic or domestic servant of any such ambassador or minister is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, shall be deemed void, and every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall upon conviction, be punished by imprisonment for not more than three years and a fine of not exceeding two hundred pesos in the discretion of the court.

Section 5. The provisions of section four hereof shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the Republic of the Philippines, in the service of an ambassador or a public minister, and the process is founded upon a debt contracted before he entered upon such service; nor shall the said section apply to any case where the person against whom the process is issued is a domestic servant of an ambassador or a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of Foreign Affairs, and transmitted by the Secretary of Foreign Affairs to the Chief of Police of the City of Manila, who shall upon receipt thereof post the same in some public place in his office. All persons shall have resort to the list of names so posted in the office of the Chief of Police, and take copies without fee.

Section 6. Any person who assaults, strikes, wounds, imprisons or in any other manner offers violence to the person of an ambassador or a public minister, in violation of the law of nations, shall be imprisoned not more than three years, and fined not exceeding two hundred pesos, in the discretion of the court, in addition to the penalties that may be imposed under the Revised Penal Code.

Section 7. The provisions of this Act shall be applicable only in case where the country of the diplomatic or consular representative adversely affected has provided for similar protection to duly accredited diplomatic or consular representatives of the Republic of the Philippines by prescribing like or similar penalties for like or similar offenses herein contained.itc-alf

Section 8. This Act shall take effect upon its approval.

Approved: October 21, 1946

Case Problem under jurisdiction

Problem : M married F here in the Philippines. Both are Filipino citizens. After years of marriage, M contracted a second marriage in a foreign country after obtaining a divorce therein.

Ans. Yes. In accordance with International law the accused is guilty of the crime of bigamy through the principle of prescriptive jurisdiction over the person.By the exercise of the prescriptive jurisdiction, the spouse may file a complaint in court. The court may proceed to investigate and find probable cause. It claims jurisdiction over the person by appropriate notice or summon.The Philippines has prescriptive jurisdiction over the person but not enforcement jurisdiction as he is not in the country. The principle of nationality jurisdcition is applicable where the state has its jurisdiction towards its national in return the citizen is oblige to be govern by that particular law being implemented.

Revised Penal code of the Philippines also provide the essential requisites of the crime of bigamy,

1) the offender is legally married; (2) the marriage is not legally dissolved; (3) the offender contracts a second or subsequent marriage; and, (4) the second or subsequent marriage is valid except for the existence of the first marriage.

This particular provision of law is applicable towards the citizen of the Philippines.

Is the second marriage valid?
No. In accordance with the New Civil code of the Philippines it provides through Art. 17. Laws relating to the family rights and duties, or status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

2.M married F here in the Philippines. Both are Filipino citizens. M and F went abroad and obtain a divorce therein. Thereafter, M married C a citizen of such foreign country.

Is there a valid divorce?

NO, Article 26 second paragraph of the family code provides marriage between a Filipino citizen and a foreigner is validly celebrated and divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under the Phil. law.

Divorce is being granted only to those alien individual, concerning our citizen it is not being granted because our family code does not provide divorce but only legal separation and annulment.

Is there bigamy?

Yes in so far M is concerned because our family code does not grant divorce to its citizen, marriage is still valid and binding in the Philippines.The marriage of M in the Philippine is still subsisting and valid, and being valid it qualify under the essential requisites for the crime of bigamy.

In international law aspect concerning jurisdiction, the principle of nationality jurisdiction will apply.

M being a citizen of the Philippines is being governed by this two laws.

Russia vs Georgia

This article is about reactions to an ongoing event Georgia vs Russia


Russia vs Georgia: The Fallout,

The latest report from the International Crisis Group, examines the mistakes on all sides that led to war and offers comprehensive recommendations for the belligerent parties and international institutions. Both Georgia’s rash miscalculation in attacking its breakaway region of South Ossetia, and Russia’s disproportionate response in invading large portions of Georgia, make the conflicts over the separatist territories of South Ossetia and Abkhazia far harder to resolve.
The urgent need is to implement fully the 15-16 August ceasefire, and most significantly, to ensure that Russian troops return immediately to pre-7 August positions. “Western states must press Moscow to accept the common understanding of the loosely-worded ceasefire, and not try to use loopholes to retain a de facto occupation of parts of Georgia.
International monitors should be deployed to observe Russian withdrawal and then help keep the ceasefire in South Ossetia and Abkhazia until the UN authorises an international peacekeeping mission, which Russia should be allowed to join but not dominate. Humanitarian aid must be freely distributed and displaced persons assisted in returning to their homes.
More broadly, Russia’s actions have undermined regional security; threatened vital energy corridors; made claims on ethnic Russians and other minorities that could be used to destabilise other former Soviet republics, including Ukraine; and shown disregard for international law.
The crisis raises questions about the compatibility of Russia’s intentions with the rights of other states on its borders. It has also raised concerns about the capacity of NATO, the UN and EU to address basic security challenges stemming from the aggressive self-confidence of a Moscow that feels the West has, since the Soviet Union collapsed, taken advantage of its weakness, ignored its interests, and maintained NATO in an unnecessarily confrontational way.
“Current rhetoric in Moscow and Western capitals is eerily reminiscent of the Cold War and will do nothing to resolve the crisis on the ground in Georgia or repair the damage done to European security”, “The West needs to address Russia’s behaviour not by isolating Moscow, but by engaging it in a way that is both hard-headed and conditional.”
The West should deliver a firm message to Russia that if it does not respect the ceasefire deal and cooperate in implementing the international peacekeeping mission, it will be met with a serious response, including suspension of its Moscow’s World Trade Organisation application and its participation in the G-8, and a challenge to its holding the 2014 Sochi Winter Olympics.
But if Russia does now significantly moderate its behaviour, the message should be that the West is prepared to explore common security interests and ways to bridge differences, on a wide range of regional and global security and economic issues.
Russian actions reflected deeper factors, including pushback against the decade-long eastward expansion of the NATO alliance, anger over issues ranging from the independence of Kosovo to the placement of missile defence systems in Europe, an assertion of a concept of limited sovereignty for former Soviet states and a newfound confidence and aggressiveness in foreign affairs that is intimately linked with the personality and world view of Russia’s predominant leader, Prime Minister Vladimir Putin.
Georgia, too, has mishandled its relationships with Russia, South Ossetia and Abkhazia since 2004, abandoning real confidence building and often following confrontational policies towards the conflict regions. With patience it might have demonstrated that the regions would be better served by enjoying extensive autonomy within an increasingly prosperous and democratising Georgia. Instead, President Mikheil Saakashvili and a small inner circle of bellicose officials used menacing and arrogant rhetoric that made the dispute with Moscow and the conflict regions bitter and personal. All sides bear responsibility for the humanitarian consequences of the violence, as tens of thousands of civilians in South Ossetia, Abkhazia and the rest of Georgia have been displaced amid disturbing reports of atrocities.
Western nations must eschew the worst of the Cold War mentality that would further isolate Russia, but engagement, as UK Foreign Secretary David Miliband has put it, has to be “hard-headed”. Russia cannot be allowed to maintain a military force in Georgia except as part of an international peacekeeping mission with non-Russian command, with a clear and mutually acceptable mandate in South Ossetia and Abkhazia. The ceasefire signed on 15-16 August must be respected, and Russian troops must return promptly to the positions they held on 7 August, honouring the spirit of a loosely worded agreement. International monitors should be deployed in Georgia proper to observe Russian withdrawal and return of displaced persons (IDPs) and then serve as an interim measure to help maintain the ceasefire in South Ossetia and Abkhazia until a peacekeeping mission can be created.
Russian participation is probably necessary as a practical matter in the peacekeeping mission, although serious questions should be raised about the motives of the Russian forces that Moscow describes as peacekeepers. Command and composition should be genuinely international. All Georgian and Ossetian civilians displaced since 7 August need to be immediately allowed to return to their homes. The Russians and Georgians should agree to and cooperate with investigations to establish responsibility for human rights abuses during the conflict, including by the International Criminal Court (ICC) and perhaps the Organization for Security and Co-operation in Europe (OSCE).
None of this will be easy or even possible without a combination of significant pressures and pragmatic incentives to gain essential Russian approval. Moscow must be made to understand the advantages for its prestige, power and economy of being a partner in ensuring security in Europe rather than an outlier, subject to threats of exclusion from such institutions as the G8 and World Trade Organization (WTO).
The crisis also reflects serious mistakes by the U.S. and the European Union (EU) in Georgia since 2004, most significantly failing to adequately press President Saakashvili to abandon a quick-fix approach toward restoring Georgian control over South Ossetia and Abkhazia. The Georgian army was trained and sold weapons without ensuring that these would not be used to recover the conflict territories, and Russia’s anger over these actions and other perceived post-Cold War slights was misread. Instead of concentrating on democratic institutions and rule of law, the U.S. too often focused its support on Saakashvili personally, even as he engaged in reckless and authoritarian behaviour. As the long-frozen conflicts in South Ossetia and Abkhazia began to heat up, Georgia’s partners did too little to encourage it to engage more substantially in confidence building and dialogue with the de facto authorities and Russia.
With regard to NATO, the division evident at its Bucharest Summit in April 2008 on whether to approve a membership action plan (MAP) for Georgia has been exacerbated. Those countries, led by the U.S., who support Georgia’s accession are pointing to the Russian attacks as clear proof that Georgia needs the protection of NATO security guarantees; those that oppose it believe that NATO dodged a bullet by not committing itself to go to war against Russia in defence of a capricious and reckless government in Tbilisi. A decision on MAP or membership status should not be taken in the heat of the current crisis. It will be difficult to finally resolve the membership issue, in relation to both Georgia and other potential members, without addressing the larger question of NATO’s future role as a security organisation.
At the broader level, the crisis raises significant questions about the capacity of the EU, the UN and NATO to address fundamental issues. While European leaders stepped forward to achieve the ceasefire agreement, their inability to put forward a forceful response to the Russian action reflects a lowest common denominator approach that discourages stronger and more innovative policies. Similarly, the UN Security Council, divided by whether to include references to Georgia’s territorial integrity in either a resolution or statement, has issued nothing on the conflict since it began to boil over on 7 August. In an unhappy reminder of the Cold War years, the conflict has called into question the Council’s capacity to address any issue over which P-5 members have significantly different interests. And in the process of seeking justification for its actions, Russia has also misstated and distorted the UN-approved principle of “responsibility to protect”.
RECOMMENDATIONS:
To the Member States of the UN Security Council:
1. Negotiate rapidly a resolution that:
a) acknowledges and welcomes the ceasefire signed 15-16 August 2008 and addresses the territorial integrity issues by confirming that it does not affect the legal situation that existed in the concerned area on 7 August 2008;
b) welcomes the dispatch of observers to serve as interim monitors of the ceasefire;
c) authorises for an initial period of one year the formation and operation of a peacekeeping mission, which may be, as appears most practical and expeditious, either a traditional UN mission or the mission of another appropriate international institution such as the OSCE, and is commanded on the military side by a senior soldier from outside the region and on the political side by a senior diplomat from outside the region. Russian participation in such a mission should be fully integrated into the inter­national command structure and not form a separate force within the main force. This force should be mandated to:
i. ensure respect for the ceasefire signed on 15-16 August 2008;
ii. offer such assistance as may be deemed useful by the de facto South Ossetian and Abkhazian authorities to develop their institutions; and
iii. encourage contacts between the Georgian government, Georgian institutions and individuals and the de facto authorities of South Ossetia and Abkhazia, their institutions and individuals; and
d) establishes a forum in which the concerned parties, facilitated by the UN, as well as interested neighbouring states and international organisations such as the OSCE and EU, can urgently explore practical measures to improve the humanitarian and economic situation, as well as the possibility of more far-reaching political measures to achieve, ultimately, a resolution of the underlying problems that have produced conflict between Georgians, South Ossetians and Abkhazians, including regarding status.
2. Request that the Secretary-General, after consultations with all parties to the conflict and with relevant international organisations such as the OSCE, appoint an independent panel to conduct an investigation documenting August events in South Ossetia and Abkhazia as well as other parts of Georgia in which Russian forces established temporary presence. The purpose of the investigation should be to provide an accurate and complete accounting of what occurred in order to promote reconciliation and make it possible to ensure future accountability for any atrocity crimes.
To the Russian and Georgian Governments and the De Facto South Ossetian and Abkhazian Authorities:
1. Implement immediately and fully the six-point ceasefire agreement signed on 15-16 August 2008.
2. Assist monitoring of compliance by a strengthened OSCE Georgia Mission, with full freedom of movement throughout the country, until a more permanent and substantial international peacekeeping mission can be authorised and deployed.
3. Allow and support the immediate return of all newly displaced persons and refugees to their homes, provide unrestricted access for humanitarian aid, facilitate the exchange of prisoners and detainees, halt belligerent rhetoric and the issuing of false press reports, assist with the determination of the fate of the missing and cooperate with the International Committee of the Red Cross (ICRC) and humanitarian airlifts, as well as with the International Criminal Court (ICC) and other investigating authorities.

Disclaimer: The views expressed are for academic purposes
Source www.crisisgroup.org