Part 6 Nachura - Public International Law - baixardoc

1 Loyola.Reyes.Vibandor.

PUBLIC INTERNATIONAL LAW


General Principles

A. International Law defined

Traditional Modern

Branch of public law w/c:

Regulates relations of States & of other

entities granted int’l personality. *This def’n focuses on subjects w/c are entities

possessing:

- int’l personality &

- w/ rights & obligations recognized under

international law,

As against objects w/c are persons or things in

w/c rights are held & oblig assumed by the

subjects of int’l law+

Law w/c deals w/:

- Conduct of States & int’l org

- Their relations w/ each other

- & their relations w/ persons, natural or

juridical

B. Basis of Int’l Law

Law of Nature School Possitivist School Ecletic or Groatian School

-natural & universal principle

of right & wrong

-independent of mutual

intercourse/ compact w/c can

be discovered & recognized

by every indiv. through the

use of his reason &

conscience.

-Binding force of int’l law: derived from agreement of

States to be bound by it.

-int’l law is not a law of subordination but

coordination

-conforms to the dictates of

right reason

-the voluntary law may be

said to blend w/ the natural

law & be an expression of it

-in case of conflict, the natural

law prevails, being the more

fundamental law

C. Public International Law distinguished from:

Private In’t Law Int’l Morality/Ethics

Int’l Comity Int’l Diplomacy

Int’l Admin. Law

A. As to nature:

Int’l vs. municipal

B. As to

remedies:

Int’l modes vs. local tribunals

C. As to parties:

Int’l entities vs. private persons

D. As to

enforcement:

Int’l sanctions vs. sheriff/

police

Govern relations

of States from

the standpoint of

a. Conscience

b. Morality

c. Justice

d. Humanity

Rules of

politeness/courtesy

observed by States

in their relations

w/other States

-objects of:

a) int’l policy &

b) conduct of

foreign affairs

Regulates

relations &

activities of:

a)nat’l &

b)int’l agencies

w/respect to

their:

a)material &

b)intellectual

interests

w/c have

received int’l recognition

D. Int’l Law as true law


Although it may not comply w/John Austin’s concept of law, i.e., enforced by sovereign

political authority, nonetheless it is still a true law

Application, enforcement, & compliance.

Absence of a central law-making authority & the jurisdictional defects,weaken the

expectation of compliance in comparison w/ the situation in the domestic plane.

These considerations are, however, balanced by the risk of political/ economic

retaliation & other sanctions such as

a. adverse public opinion

b. retorsions

c. reprisals

d. the UN machinery

e. conviction that obedience will redound to the public good

E. Relationship w/ Municipal Law (ML)

Monist Dualist

No substantial distinction between int’l law & municipal law.

(oo eto lang to)

ML

- issued by a political

superior for

observance by those

under its authority

- consists of

enactments of law-

making authority

- regulates relations

of indiv. among

themselves

-violations are

redressed through

local judicial &

administrative

processes

-breaches entail indiv

responsibility

IL

- not imposed but

adopted by states as

a common rule of

action

- derived from such

sources as int’l customs, conventions

or gen. principles of

law

-relations between

states & int’l persons

-redressed through

state-to-state

transactions

-collective

responsibility

Doctrine of Incorporation Doctrine of transformation

Expressed in S2 Art2 “The Phils. Renounces war as an instrument of national policy,

adopts the generally accepted principles of

international law as part of the law of the land

& adheres to thepolicy of peace…”

Requires the enactment by the legislative body

of such int’l law principles as are sought to be part of municipal law

Conflict between International Law & Municipal Law

On the domestic sphere, w/a local court

deciding

International sphere, w/an int’l tribunal

deciding

a) if conflict is w/Consti: International law is superior to municipal law,


uphold Consti

b) if conflict is w/statute:

doctrine of incorporation decrees that

rules of int’l law are given equal standing w/, but not superior to

national legislative enactments.

A treaty may repeal a statute & a

statute may repeal a treaty; thus, the

principle of lex posterior derogate

priori, that w/c comes last in time, will

usually be upheld by the municipal

tribunal

because int’l law provides the standard by w/c to determine the legality of a State’s conduct.

F. Sources of Int’l Law

Domestic sphere International Plane

Constitution, legislative enactments, & case

law (stare decisis).

It’s complicated (hiyess!) because there is no body likened to a nat’l legislature, no

fundamental law, & the doctrine of

precedents is not applicable.

However, most authoritative enumeration is found in Art. 38, Statute of the Int’l Court of Justice w/c provides that the Court, whose function is to decide in accordance w/ Int’l Law such disputes as are submitted to it, shall apply:

PRIMARY SOURCES

1. International Treaties & conventions

The Rome Statute

- Signed July 17, 1998

- Effective July 1, 2002

- Based on the principle of complementarity

- Made Philippines part of the International Criminal Court. It is a modern initiative

and rather ambitious because an individual can be tried therein and he cannot

invoke immunity.

- No Retroactivity

- Gives primacy to local courts

- No Death Penalty

2. International Customs

- Prevailing practice

- Repeated over considerable period of time

- Opinio Juris

3. General Principles of law

- Natural Law

- Observed and Organized


To these may be added the principle of ex aequo et bono (what is good & just),

provided that the parties to the dispute agree thereto, as provided in Art. 38 (1)

Statute of the International Court of Justice

Interpretation of Art. 38 - Although the provision is silent on the question of whether the 3

primary sources have the same hierarchic value, by practice, treaties take precedence over

customs, & customs over general principles of law, except:

The principle of jus cogens – customary int’l law w/c w/c has a status of peremptory (absolute, uncompromising, certain) norm of int’l law.

Peremptory norm- accepted & recognized by int’l community of states as a rule from w/c no derogation is permitted, & w/c can be modified only by a subsequent norm having the

same character.

Ex. slave trade, piracy & terrorism

SECONDARY SOURCES

1. Judicial decisions – ICJ. Whether the norm has been accepted as a rule of international

law.

2. Writings of publicists – Fair and unbiased representation of international law by

acknowledged authorities in the field.


Subjects of International Law

A. Distinction between subject & object of international law

Subject Objects

An entity that has rights & responsibilities

under int’l law; Can be a proper party in transactions involving

the application of the law of nations among

members of the int’l community. Includes:

States, colonies, & dependencies, mandates &

trust territories, the Holy See (Vatican City),

the UN, belligerent communities, international

administrative bodies, & to a certain extent,

individuals.

A person or thing in respect of w/c rights are

held & obligations assumed by the subject;

Not directly governed by the rules of int’l law; It’s rights are received, & its responsibilities imposed, indirectly through the

instrumentality of an int’l agency.

B. States

Group of people living together in a fixed territory, organized for political ends under an

independent government, & capable of entering into int’l relations w/ other states.

ELEMENTS

a. People- both sexes, sufficient in number to maintain & perpetuate themselves

b. Territory- fixed portion on the earth’s surface c. Govt- organized, w/ ctrl over & capable of maintaining law & order w/in the country

d. Sovereignty/ independence- freedom from outside ctrl in the conduct of its foreign

(&internal affairs)

Other suggested elements of a state:

a. civilization

b. recognition- wherein state acknowledges the existence of another state, gov’t, or belligerent community & indicates its willingness to deal w/ the entity as such under

int’l law.

THEORIES ON RECOGNITION:

A. Constitutive (majority view)

- Recognition is the act w/c constitutes the entity into an int’l person. - Recognition is compulsory & legal; may be compelled once the elements of a state

are established

B. Declarative (majority view)-

Recognition merely affirms an existing fact, like the possession by the state of

essential elements.

It’s discretionary & political

BASIC RULES ON RECOGNITION


A. It’s a political act B. Discretionary on the part of recognizing authority

C. Exercised by political (executive) department of state

D. Legality & wisdom- not subject to judicial review

REQUIREMENTS FOR RECOGNITION OF GOV’T

1. Gov’t is stable & effective, 2. w/no substantial resistance to its authority

3. Gov’t must show willingness & ability to discharge int’l oblig. 4. Gov’t must enjoy popular consent or approval of the people

Tobar/ Wilson Doctrine Stimson Doctrine Estrada Doctrine

Precludes recognition of any

gov’t established by revolutionary means until

constitutional reorganization

by free election of

representatives

No recognition of a gov’t established through external

aggression

Since recognition has been

construed as approval (& non-

recognition, disapproval) of

gov’t established through judicial upheaval, a state may

not issue a declaration giving

recognition to such gov’t, but merely accept whatever gov’t is in effective control w/o

raising the issue of

recognition.

Dealing or not dealing w/the

gov’t is not a judgment of legitimacy of the said gov’t

KINDS OF RECOGNITION

De facto

-Extended by the recognizing state w/c believes that some of requirements for

recognition are absent.

-Recognition is generally provisional and limited to certain juridical relations.

-Does not bring about full diplomatic intercourse & does not give title to assets of the

state held/ situated abroad

De Jure

-Extended to gov’t fulfilling requirements for recognition

-when there’s no specific indication, recognition is generally considered de jure

-relatively permanent

-brings about full diplomatic intercourse & observance of diplomatic immunities, &

-confers title to assets abroad

EFFECTS OF RECOGNITION

-diplomatic relations

-right to sue in courts of recognizing state

-immunity from jurisdiction

-entitlement to property w/in the recognizing state


-retroactive validation of the acts of the recognized state/govt, such as acts of state and

thus, sovereign immunity covers past, present & future acts

RECOGNITION OF BELLIGERENCY; CONDITIONS

1. Organized civil gov’t having ctrl & supervision over the armed struggle

2. Serious & widespread struggle w/uncertain outcome

3. Occupation of substantial portion of the nat’l territory

4. Willingness of rebels to observe to observe rules of war

EFFECTS OF RECOGNITION OF BELLIGERENCY

Responsibility for acts of rebels resulting in injury to nationals of the recognizing state

shall be shifted to the rebel gov’t; Legitimate gov’t recognizing the rebels shall observe the laws of war in conducting hostilities

Third states recognizing the belligerency shall maintain neutrality, and

Recognition is only provisional (for the duration of the armed struggle) & only for the

purpose of hostilities

CREATION OF STATES

1. Revolution

2. Unification

3. Secession

4. Assertion of independence

5. Agreement

6. Attainment of civilization

PRINCIPLE OF STATE CONTINUITY

State- continues as a juristic being notwithstanding changes in its circumstances,

provided only that such changes do not result in loss of any of its essential elements

Succession of States Succession of Governments

Consequences - Political laws are

abrogated while municipal

laws remain in force

- Treaties are discontinued,

except those dealing with

local rights and duties such

as those establishing

easements and servitudes

- All rights of predecessor

state are inherited but

successor state can

assume and reject

liabilities at its discretion

- Rights of predecessor

government are inherited by

successor

- Where the new government

was organized by virtue of

constitutional reform ratified in a

plebiscite, all obligations of the

predecessor are likewise

assumed, however, where the

new government established

through violence, the new

government may lawfully reject

purely personal or political

obligations of the predecessor,

but not those obligations

contracted by it in the ordinary

course of official business.


CLASSES OF STATES

A. INDEPENDENT

Has freedom to direct & ctrl foreign relations w/o restraint from other states. May be:

Single Composite

Single central gov’t, w/power over internal & external affairs

2/ more sovereign states joined together to

constitute 1 international person, w/c may be:

Real union

2/more states sre

merged under a

unified authority so

that they form a

single international

person through w/c

they act as 1 entity.

The sy=tates retain

their separate

identities, but their

respective

international

personalities are

extinguished &

blended in the new

int’l person, e.g., the former

United Arab Republic,

w/Egypt & Syria.

Federal union

Combination of

2/more states w/c

uponmerger, cease to

be states, resulting in

the creation of a new

state w/full int’l personality to

represent them in

their external

relations as well as a

certain degree of

power over their

domestic affairs &

their inhabitants.

Authority over

international affairs:

divided between

federal authorities &

the member-states;

Authority over

external affairs:

handled solely by

federal authorities

B. DEPENDENT

An entity w/c although theoretically a state, does not have full freedom in the direction

of its external affairs, such as a protectorate (w/c is established at request of weaker state for

the protection by a strong power) or a suzerainty(result of a concession from a state to a

former colony that’s allowed to be independent subject to the retention by the former sovereign of certain powers over the external affairs of the latter. E.g., Bulgaria & Rumania,

both suzerainties of the Sultan of Turkey by virtue of Treaty of Verlin)

C. NEUTRALIZED

Independence & integrity are guaranteed by an int’l treaty on the condition that such state obligates itself never to take up arms against another (except self-defense), or to enter

into an int’l obli. as would indirectly involved it in war, e.g., Switzerland, Austria


Vatican city & the Holy See

Holy See- has all constituent elements of statehood (people: less than 1000 individuals;

territory: 108.7 acres; gov’t w/the Pope as head; & independence by virtue of Lateran Treaty of 1929 w/c constituted Vatican as a territory under sovereignty of Holy See)

It has all the rights of the state, including diplomatic intercourse, immunity from foreign

jurisdiction, etc

D. Colonies & Dependencies

COLONY DEPENDENCY

Dependent political community consisting of a

number of citizens of the same country who

have migrated therefrom to inhabit another

country but remain subj of mother state

Territory distinct from the country in w/c

supreme sovereign power resides, but belongs

rightfully to it, &subject to laws & regulations

w/c sovereign may prescribe.

E. Territories under Int’l court / supervision

Non-self-governing territories placed under int’l supervision/ctrl to insure their political, eco, soc & educ advancement.

Ex. mandates w/c are former territorial possessions of the states defeated in World War

I & placed under the control of League of Nations. Many of these mandates became trust

territories placed under the trusteeship council of the UN

F. The United Nations

1. Historical development.

2. UN charter

- Closest to Consti. Governs relations of int’l persons. -Technically a treaty, a contract under doctrine of pacta sunct servanda although it

actually applies even to non-member states, at least in so far as “may be necessary for maintenance of international peace & security”

Amendment:

a. 2/3 vote of GA mem & ratified by 2/3 of UN members.

b. General conference called by majority vote of GA & any 9 members of Security

Council (SC), may propose amendments by a 2/3 vote of the conference & shall take

effect when ratified by 2/3 of UN mem

Purpose: Prevention of war, maintenance of int’l peace & security, dev’t of friendly relations among the members of int’l community, int’l cooperation, harmony of actions of nation

3. Membership:

Classes Original or Elective

Qualification Member must be a state, peace loving, accept the obligation under the charter

and be able and willing to carry out these obligations

Admission Decision of 2/3 of those present and voting in the GA upon recommendation of

at least 9 members of the Security Council

Suspension Same vote as admission. Suspended member cannot participate in GA meetings.

Can’t be elected to or continue to serve in the Security council, Economic and

Part 6 Nachura - Public International Law - baixardoc

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