PUBLIC INTERNATIONAL LAW

The General Principles

1987 Philippine Constitution
Declaration of Principles and States Policies; Art.
2, Sec. 21 —
The Philippines renounces war as an
instrument of national policy, adopts the
generally accepted principles of
international law as part of the law of
the land and adheres to the policy of
peace, equality, justice, freedom,
cooperation, and amity with all nations.
1987 Philippine Constitution
Executive Department; Art. 7, Sec. 21 —

No treaty or international agreement shall

be valid and effective unless concurred in
by at least two-thirds of all Members
of the Senate.
What is International Law?
 Traditional - That branch of public law
which regulates the relations of States
and of other entities which have been
granted international personality.
 Modern - The law that deals with the
conduct of States and international
organizations, their relations with each
other and, in certain circumstances,
theirrelations with persons, natural or
juridical
Public International Law distinguished from:
Private International International International International
International Morality or Comity Diplomacy. Administra-
Law Ethics tive Law
1.Nature:  Principles  Rules of  Objects of  Body of
politeness internatio- laws which
Municipal which
regulate the
2.Remedies: govern /courtesy nal policy
relations
local relations observed and the and
tribunals of States. by States conduct of activities of
in their foreign national
3.Enforcem
relations affairs. and inter-
ent: national
with other
sheriff/ States. agencies.
police.
Is International
Law a true law?
What is the theoretical basis of International Law?

1. Natural Law theory. — Since individuals

compose the State whose will is but the
collective will of the inhabitants, the State
also becomes bound by the law of nature.
What is the theoretical basis of International Law?

2. The Eclectic or Grotian Theory — In

so far as it conforms to the dictates of right
reason, the voluntary law may be said to
blend with the natural law and be, indeed,
an expression of it. In case of conflict, the
natural law prevails, being the more
fundamental law.
What is the theoretical basis of International Law?

3. Command theory. — law consists of

commands originating from a sovereign and
backed up by threats of sanction if
disobeyed. In this view, international law
is not law because it does not come
from a command of a sovereign. This
theory, however, has generally been
discredited. The reality is that nations see
international law not as commands but as
principles for free and orderly interaction.
What is the theoretical basis of International Law?

4. Consensual theory — Under this theory,

international law derives its binding force
from the consent of states. Treaties are an
expression of consent. Likewise, custom, as
voluntary adherence to common practices, is
seen as expression of consent. In this context,
international law is not a law of
subordination but of coordination.
Is International Law a true law?
A:
 Yes.
 States are bound by many rules not promulgated by
themselves. (Bernas, International Law, p.2)
 Fundamentally, there is a general respect for law
and also there is concern about the consequences
of defiance either to oneself or to the larger
society. International law is law because it is seen
as such by states and other subjects of
international law. (Bernas, International Law, p.4)
Jus cogens
A jus cogens norm is a “norm accepted and
recognized by the international community of
States as a whole as a norm from which no
derogation is permitted and which can be
modified only by a subsequent norm of general
international law having the same character.”
[Vienna Convention on the Law of Treaties
(“VCLT”), art. 53]
 Alsoknown as peremptory norm of general
international law.
CONCEPT OF EX AEQUO ET BONO
“what is equitable and good.”
A standard that a court may apply to
decide a case when th parties to the
dispute so agree.
[ICJ Stat., art. 38(2)]
Relationship with Municipal Law
Monist
 No substantial distinction between international law and
municipal law.
Dualist
MUNICIPAL LAW INTERNATIONAL LAW
- issued by a political superior for - not imposed but adopted by states
observance by those under its as a common rule of action.
authority
- consists of enactments of the - derived from international
law-making authority customs, conventions or general
principles of law
Relationship with Municipal Law
Dualist
MUNICIPAL LAW INTERNATIONAL LAW
- regulates relations of - applies to relations between
individuals among themselves states and international
persons
- violations of ML are redressed - they are resolved through
through local judicial and state-to-state transactions
administrative processes
- breaches of ML entail - there is collective
individual responsibility responsibility
Relationship with Municipal Law
Doctrine Of Doctrine Of
Incorporation Transformation
- adopts the generally - requires the enactment by
accepted principles of the legislative body of such
international law as part of the international law principles as
law of the land. (Sec. 2, Art. II, Philippine are sought to be part of
Constitution)
municipal law.
Relationship with Municipal Law
Doctrine Of Incorporation
Case: Kuroda vs. Jalandoni, 83
Phil. 171. —
“although the Philippines was
not a signatory to the Hague and
Geneva Conventions,
international jurisprudence is
automatically incorporated in
Philippine law, thus making war
crimes punishable in the
Philippines.”
Doctrine Of Transformation
Case: Laguna Lake Development
Authority vs. Court of Appeals, 231SCRA
292 —
“where it was declared that Sec. 6, Art.
II, Philippine Constitution, which reads:
‘The state shall protect and advance the
right of the people to a balanced and
healthful ecology in accord with the
rhythm and harmony of nature’, was
taken from the Universal Declaration of
Human Rights and the Alma Conference
Declaration of 1978 recognizing health as
a fundamental human right.
Conflict between International Law and
Municipal Law.
On the domestic sphere, with a local court deciding:
On the domestic sphere, with a local court deciding

Rule If the conflict is with the If the conflict is

Constitution: with a statute:
- uphold the Constitution. - the principle of lex posterior
Sec. 5(2)(a), Art. VIII, derogat priori, that which
Philippine Constitution. — the comes last in time, will usually
Supreme Court has the power be upheld by the municipal
to declare a treaty or tribunal.
executive agreement
unconstitutional
Conflict between International Law and
Municipal Law.
On the domestic sphere, with a local court deciding:
On the domestic sphere, with a local court deciding
Rule If the conflict is
with the Constitution:
Case: Secretary of Justice v. Judge
Lantion, G.R. No. 139465, January
18, 2000 — in states where the
Constitution is the highest law of the
land, such as the Republic of the
Philippines, both statutes and
treaties may be invalidated if they
are in conflict with the Constitution.
If the conflict is
with a statute:
Case: Ichong vs. Hernandez, 101 Phil.
115 — the Retail Trade Nationali-
zation Law prevails over the Treaty of
Amity with China and the UDHR,
because the law was passed in the
exercise of the police power of the
State, and police power cannot be
bargained away through the medium
of a treaty or a contract.
Conflict between International Law and
Municipal Law.

On the international sphere, with an international

tribunal deciding:
international law is superior to municipal law, because
international law provides the standard by which to
determine the legality of a State’s conduct.
The Sources Of International Law
Classified as:

Formal sources – refers to the various

processes by which rules come into existence.
Material sources – they are not concerned
with how rules come into existence but rather
with the substance and content of the
obligation. They identify what the obligations
are. They are also sometimes referred to as
“evidence” of international law.
THE SOURCES OF INTERNATIONAL LAW
How does the ICJ should resolve conflicts
brought before it?
As Primary Sources:
a) International Treaties and Conventions -
whether general or particular, establishing rules
expressly recognized by contesting states;
b) International Custom - as evidence of a general
practice accepted as law;
c) general principles of law - recognized by
civilized nations;
THE SOURCES OF INTERNATIONAL LAW
How does the ICJ should resolve conflicts
brought before it?
As Secondary Sources:
a) Judicial Decisions; and
b) Teachings of the most highly
qualified publicists of the various nations,
as subsidiary means for the determination of
rules of law. (Article 38(1) of the Statute of the International Court of Justice)
TREATIES
 treaties or international agreements, whether
bilateral or multilateral.
 determine the rights and duties of states
just as individual rights are determined by
contracts.
 Theirbinding force comes from the voluntary
decision of sovereign states to obligate
themselves to a mode of behavior.
TREATIES
If a treaty comes later than a
particular custom, as between
the parties to the treaty, what
should prevail?
A: The treaty should prevail. A treaty manifests a
deliberate choice of the parties and the principle
of pacta sunt servanda should be followed.
TREATIES
However, if a later treaty is contrary to a
customary rule that has the status of jus
cogens, custom will prevail. This is because
of Article 53 of the Vienna Convention on the
law of Treaties:
A treaty is void if, at the time of
its conclusion, it conflicts with a
peremptory norm of general
international law.
TREATIES
What does pacta sunt servanda
mean?
A:
 “treaties shall be complied with”
 general principle of international law—one that
underlies the entire system of treaty-based
relations between sovereign states.
 Article 26 of the VCLT states, “[e]very treaty in
force is binding upon the parties to it and must
be performed by them in good
faith.” (http://www.judicialmonitor.org/archive_0908/generalprinciples.html)
CUSTOMARY INTERNATIONAL LAW
 a general and consistent practice of states
followed by them from a sense of legal
obligation.
 Elements of custom:
1) material factor — The initial factor for
determining the existence of custom is the
actual behavior of states (usus). This includes
several elements: duration, consistency, and
generality of the practice of states.
2) psychological or subjective factor
(Opinio Juris) — or the belief that a certain
form of behavior is obligatory, is what makes
practice an international rule. Without it,
practice is not law.
General Principles of Law
 Restatement (Third) of Foreign Relations Law
of the United States, refers to them as:
generalprinciples of law recognized by or
common to the world’s major legal systems.
This has reference not to principles of
international law but to principles of
municipal law common to the legal systems
of the world.
“supplementary rules of international law.”
JUDICIAL DECISIONS
 They are not really sources, but “subsidiary
means” for finding what the law is, and
whether a norm has been accepted as a rule
of international law. Article 59 of the Statute
of the International Court of Justice says
that, “the decisions of the court have no
binding force except between the parties
and in respect of that particular case.”
Hence, such decisions do not constitute
stare decisis.
JUDICIAL DECISIONS
 However, the decisions of the ICJ are not only
regarded as highly persuasive in international
law circles; they have also contributed to the
formulation of principles that have become
international law.
 international personality of international
organizations
 doctrine on “genuine link” between a person and
a state for purposes of jurisdiction, and
 thestraight baseline method in drawing baselines
for archipelagos.
The teachings of highly qualified
writers and “Publicists.”
 “Publicists” are institutions which write on
international law.
 must be fair and unbiased representation of
international law by acknowledged authorities in the
field.
 In common law jurisdictions, there is reluctance to
use them. In civil law jurisdictions, there is more
ready reference to writers. The ICJ is generally
reluctant to refer to writers but they are often
taken into consideration.
PUBLIC INTERNATIONAL LAW
Subjects of International Law
Subjects of International Law.
 are entities endowed with rights and
obligations in the international order and
possessing the capacity to take certain
kinds of action on the international
plane.

 They are actors in the international

legal system and are distinct from objects
of international law.
Objects of International Law
a person or thing in respect of which rights
are held and obligations assumed by the
subject;
 it is not directly governed by the rules of
international law;
 its rights are received, and its
responsibilities imposed, indirectly
through the instrumentality of an
international agency
What are the Subjects of International
Law?
 States
 International Organizations
 Insurgents
 Colonies and Dependencies
 Individuals
States

— A state is a group of people, living

together in a fixed territory, organized
for political ends under an
independent government, and capable
of entering into international relations
with other states.
Elements of State
 People
 Territory
 Government
 Sovereignty
 Self-determination
 Recognition
 Can an entity claim to be a
state before it is recognized
by other states?
Recognition of States
 the act of acknowledging the capacity of
an entity to exercise rights belonging to
statehood.
The Declaratory Theory
 recognition is merely “declaratory” of
the existence of the state and that its
being a state depends upon its
possession of the required elements and
not upon recognition. A recognizing state
merely accepts an already existing
situation.
Constitutive Theory
 recognition “constitutes” a state, that
is, it is what makes a state a state and
confers legal personality on the entity.
Basic Rules on Recognition

 It is a political act and mainly a

matter of policy on the part of each
state; it is discretionary on the part of
the recognizing authority; and it is
exercised by the political (executive)
department of the state. Thus, the
legality and wisdom of recognition is not
subject to judicial review.
Recognition of Government
 the act of acknowledging the capacity of
an entity to exercise powers of
government of a state.
Recognition of Government
Effects of Recognition

1. Establishment of diplomatic
relations;
2. Grant of right to sue in courts of
recognizing state;
3. Grant of right to possession of
properties of predecessor in the
recognizing state;
Effects of Recognition

4. Retroactive validity: All acts of the

recognized state or government are
validated retroactively, preventing the
recognizing state from passing upon
their legality in its own court.
International Organizations

How do they come into existence?

 An international organization is an
organization that is set up by treaty
among two or more states.
 Only states are members of international
organizations.
International Organizations

Do they have international

personality?
 In the case of other organizations, the
charter itself might specifically endow it
with international personality. But if it
does not, possession of international
personality may be implied from the
functions of the organization, as in the
case of the UN.
International Organizations

Do they have international

personality?
 Exception: United Nations: The United
Nations has objective international
personality. Its personality is binding on
the whole international community,
including States who are not UN
members.[Reparations for Injuries
Advisory Opinion (ICJ, 1949)]
International Organizations

Do they enjoy any kind of immunity?

 There is no common law doctrine
recognizing the immunity of international
organizations. Their immunities come from
the conventional instrument creating them a
clear example of the grant of immunity is
the 1946 General Convention on the
Privileges and Immunities of the
United Nations.
Insurgents
 The first and only international
agreement exclusively regulating the
conduct of parties in a non-international
armed conflict is the 1977 Protocol II to
the 1949 Geneva Conventions.
Insurgents
A non-international armed conflict covered by this
expanded guarantee is defined in Article I.
 They are armed conflicts which take place in the
territory of a High Contracting Party between its
armed forces and dissident armed forces or other
organized armed groups which, under responsible
command, exercise such control over a part of its
territory as to enable them to carry out sustained
and concerted military operations and to implement
this Protocol.
Insurgents
 Protocol II sets down requirements for what it
calls “material field of application:
1. the armed dissidents must be under responsible
command;
2. they must exercise such control over a part of its
territory as to enable them to carry out
sustained and concerted military operations and
to implement this Protocol.”
Insurgents
 Insurgent groups which satisfy the material field of
application of Protocol II may be regarded as “para-
statal entities possessing definite limited form of
international personality.”
 State practice indicates two specific attributes of
such “personality.”:
1. they are recognized as having belligerent status
against the de jure government. Other states are
therefore required to maintain neutrality
regarding them.
2. they are seen as having treaty making capacity.
Insurgents
Colonies and Dependencies
COLONY
— a dependent political
community consisting of a
number of citizens of the
same country who have
migrated therefrom to
inhabit another country, but
remain subject to the
mother State.
DEPENDENCY
— a territory distinct from
the country in which the
supreme sovereign power
resides, but belongs
rightfully to it, and subject
to the Iaws and regulations
which the sovereign may
prescribe.
Individuals
 In international law they were objects or at
best “beneficiaries” of international law.
 With the greater global awareness of
human rights, individuals have now come
to be recognized as possessing albeit
limited rights and obligations in
international law.
Individuals
 Special personality: Individuals may
assume the status of subjects of
international law only on the basis of
agreement by states and in specific
context, not in accordance with general or
customary international law.
Individuals
 Examples:
1. UNCLOS, art. 187(c)-(e) provides for
jurisdiction of the Sea-Bed Disputes Chamber of
the ITLOS over disputes between parties to
contracts relating to the exploitation of marine
resources.
2. The International Criminal Court has
jurisdiction over individuals who commit
genocide, crimes against humanity and war
crimes, subject to conditions under the ICC
Statute. [ICC Stat., art. 25(1) in relation to art.
5]
Individuals

 Obligations
are those arising from the regulation of
armed conflicts.
Violation of these rules can place
individuals under criminal responsibility.
Individuals
 Rights
When individual rights are violated,
however, individuals still have to rely on
the enforcement power of states.
But some treaties have provided for the
right of individuals to petition
international bodies alleging that a
contracting state has violated some of
their human rights.
 What are other
subjects of
International Law?
Subjects of International Law.

 International Liberation Movements

 mandates and trust territories
 The Holy See (Vatican City)
 The United Nations,
 International administrative bodies