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Principle
Principle
Principle
Principle
of comity
of reciprocity/mutuality
of independence
of equality of states
The schools of study of international law are the basis of the obligation in international law.
G. Theories as to the Basis of International Law
1. Direct Consent
- international law is based upon the direct consent of States upon their individual acceptance of its
principles and rules.
2. Implied Consent
-
a fiction to account for the acceptance of the great body of general principles and specific rules that had come to
form the body of customary law.
3. Mutuality of Interest
international law is a subjective law; its binding force depends upon mutuality of interest which could only be
maintained by altering from time to time such rules as it might be no longer to the interest of the parties to
observe.
4. Necessity
the fact that nations have common interest constitutes the actual community of states and at the same time
imperatively demands a rule of law so that international law may be said to be based upon the very necessity for
its existence.
H. Two Main Branches of International Law
1. Public International Law (Law of Nations)
2. Private International Law (Conflicts of Law)
I. Branches of International Law
1.
2.
3.
4.
5.
6.
1.
2.
3.
Customary
Conventional
General International Law
N. Public International Law vs Municipal Law
PUBLIC INTERNATIONAL LAW
- deals with states relations
- sources are customs and treaties
- law is not a law above but between sovereign
states
- laws not codified except on particular subjects
- penalty/sanction is addressed by pressure put
upon a state to behave in good faith, diplomacy,
retaliations or severance of economic ties, war as
an act of self defense (as recognized by the UN).
Only strong countries may impose these sanctions
to weak countries in reality.
MUNICIPAL LAW
- deals with internal affairs of a state
- sources are customs and precedents grown within
the states jurisdiction and legislation enacted by
its law making body.
- law of sovereign over individuals subject to state
authority.
- laws are codified
- penalty may be in the form of imprisonment (in
violation of the penal code) or sanctions of
damages and administrative sanctions.
** In International Tribunal the international law will prevail over Municipal law.
** In a municipal tribunal, one must distinguish if conflicts involve international law and foreign international
law in which case international law prevails;
** Municipal law prevails if conflicts involve conflicts between municipal law and international law.
O. Relation Between International Law & Municipal Law
1. Monism
- views international law and national law as part of single legal system with domestic law derived from
the broader framework provided by international law.
2. Dualism
- considers international law and internal law of states as wholly separate legal systems, the former
creating obligations only among sovereign nations and the latter allowing each state to determine the means and
form by which it carries our its obligations.
P. Relation between Public International law and Philippine Municipal Law
Q. Conflicts between Public International Law and Municipal Law
- Municipal law, when in conflict with PIL is given effect in municipal courts, the reason being that such
courts are organs of municipal law and are accordingly bound by it in all circumstances.
- the fact that international law has been made part of the law of the land does not mean to imply it is
primary over national or municipal law.
- in Doctrine of Incorporation, PIL is given standing equal but not superior to national legislative
enactments.
PRINCIPLES AND DOCTRINES:
DOCTRINE OF TRANSFORMATION
-
requires legislative action to make the treaty enforceable in the municipal sphere.
Municipality law expressly adopts an international law thru an act of legislation.
The doctrine observed in treaties
DOCTRINE OF INCORPORATION
- Considers rules of international law as forming part of the law of the land and no further legislative
action is needed to make such rules applicable in the domestic sphere.
- the doctrine observed in customary international law.
ADOPTION DOCTRINE
- Municipality law impliedly adopts an international law.
HARMONIZATION DOCTRINE
-International law is applied only when appropriate.
RESTRICTED AUTOMATIC DOCTRINE
- Based on Article 2, section 2 of Constitutional provision in the Philippines, Philippines adopts the
generally accepted principles of international law as part of the law of the land. It stresses the automatic
adoption of international law but involves restriction that such automatic adoption of international law is only
as to generally accepted principles of international law.
R. Conflict between a Treaty and a Constitution
in states where Constitution is the highest law of the land, both statutes and treaties may be invalidated if they
are in conflict with the Constitution.
In the Philippines, the Supreme Court may declare a treaty unconstitutional if it is in conflict with the
Constitution.
S. Structure of Public International law
1. Law of Treaties and other international agreements
2. Law on Armed Conflicts
3. Rubrics of international delinquencies or torts
The Interhandel Case (Decision of the International Court of Justice, March 21, 1949)
ii.
iii.
Issue: Whether or not RA 1180 a valid exercise of police power of the State.
Held: The court held that RA 1180 is a valid exercise of the police power of the State since such sovereign power of
the State could not be bargained through any Treaty or contract especially when the intent of such legislation is to
remedy a real and actual danger to the national economy due to the increasing dominance and control of aliens in
the retail trade in the country.
iv.
Phil. Association of Free Labor Unions (PAFLU) et al. v Secretary of Labor et al., February 27, 1969
v.
vi.
fairness to the deportation authorities that it was through no fault of theirs that no ship or country would take the
petitioner.
Issue:
Whether or not Boris Mejoff should be released from prison pending his deportation.
Ruling:
The protection against deprivation of liberty without due process of law, and except for crimes committed against
the laws of the land, is not limited to Philippine citizens but extends to all residents, except enemy aliens,
regardless of nationality. Moreover, Sec. 3, Art. II of the Constitution of the Philippines "adopts the generally
accepted principles of international law as part of the law of the Nation." And in a resolution entitled, "Universal
Declaration Of Human Rights," and approved by the General Assembly of the United Nations, of which the
Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed. It was there resolved that "all human beings
are born free and equal in degree and rights" (Art. 1); that "everyone is entitled to all the rights and freedom set
forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, nationality or social origin, property, birth, or other status" (Art. 2); that "every one has the right to
an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by
the Constitution or by law" (Art. 8); that "no one shall be subjected to arbitrary arrest, detention or exile" (Art.
9 ); etc. Premises considered, the writ will issue commanding the respondents to release the petitioner from
custody upon these terms: that the petitioner shall be placed under the surveillance of the immigration authorities
or their agents in such form and manner as may be deemed adequate to insure that he keep peace and be
available when the Government is ready to deport him. The surveillance shall be reasonable and the question of
reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for decision in case of
abuse. No costs will be charged.
source: http://rabbit-icecold.blogspot.com/
vii.
viii.
ix.
i.
ii.
iii.
iv.
v.
Direct Sources
International Conventions and Treaties
- most abundant sources of PIL
- between parties of treaties, the stipulations constitute the law between them.
- ex: Vienna Convention on the Law of Treaty
International Customs
- custom exists when there is a clear and continuous habits of doing certain things develop under the conviction
that it is obligatory and right.
- International Court of Justice held that customary rule mist be based on constant and uniform usage.
General Principles of law
- recognized by civilized nations
- Ex: Res judicata, prescriptions, due process, law of nature, estoppel, ex aequo et bono (fair and equity).
Secondary Sources (Subsidiary means for determining rules of law)
Teaching of most highly qualified publicists of the various nations
Judicial Decisions
B. Equity in International Law
Principle of Ex Aequo et Bono
- means what is fair and good
- falls under the general principle of law
- equitable principle of law
C. Classification of sources of Public International Law
i.
ii.
Direct sources
Indirect, secondary, subsidiary sources
D. Related Cases
i. Agustin vs Edu, February 2, 1979 (88 SCRA 195)
III. THE INDIVIDUAL AND INTERNATIONAL LAW
A. Individual under International Law
i.
ii.
the
OF
NATIONALITY
following
LAWS
rules:
ARTICLE II. Any questions as to whether a person possesses the nationality of a particular State shall be
determined
in
accordance
with
the
law
of
that
State.
B. RULES ON MULTIPLE NATIONALITIES
whose
ARTICLE III. A person having 2 or more nationalities may be regarded as it's national by each of the States
nationality
he
possesses.
ARTICLE IV. S State may not afford diplomatic protection to one of its nationals against a State whose
nationality
such
person
also
possesses.
ARTICLE V. Within a Third State, a person having multiple nationalities shall be treated as if he had only one.
The Third State State shall, of the nationalities which any such person possesses, recognize exclusively in it's
territory
either:
1. The nationality of the country in which he is habitually and principally resident, or
2. The nationality of the country with which in the circumstances he appears to be in fact most closely
connected
- DOCTRINE
OF
EFFECTIVE
NATIONALITY.
ARTICLE VI. A person possessing two nationalities acquired without any voluntary act on his part. May
renounce on of them with the authorization of the State whose nationality he desires to surrender. This
authorization may not be refused in the case of a person who has his habitual and principal residence abroad, if
the conditions laid down in the law of the State whose nationality he desires to surrender are satisfied.
iii.
iv.
v.
a State may prohibit its nationals from changing their nationality under certain circumstances.
ex: C.A. No. 63 (Act providing for the ways in which Philippine Citizenship may be lost or re-acquired) which
provides that Filipino citizen may lose his citizenship by subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining 2 years of age or more; Provided however that a Filipino
may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with
any country.
THE EXEMPTION TO THE GENERAL RULE PROVIDED BY ARTICLE 15 OF THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS " that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."
DOCTRINE OF NEMO POTEST EXUERE PATRIAM
- doctrine providing that the bond of nationality could never be broken.
- no one might transfer his allegiance to another state without the consent of the state which had first claim upon
him.
- the basis of the Doctrine of Indelible Allegiance
B. Individual as subject of International Law
i.
- ex: sovereign state as Philippines ( with capacity to sue in the International Court of Justice or may be sued in
international
tribunal)
2
KINDS
OF
SUBJECTS
1. COMPLETE
IN
PUBLIC
INTERNATIONAL
INTERNATIONAL
LAW:
PERSONALITY
resulting
2.
B.5.
Incorporate Union
- one where the internal and external organs of government of two states are merged into one
in
a
single
international
personality.
ex: United
kingdom of Great
Britain and Ireland
INCOMPLETE,
IMPERFECT,
1.
QUALIFIED
OR
QUASI-INTERNATIONAL
PERSONALITIES
Dependent
states
-subjected to control & sovereignty of some superior state/s in the conduct of their external & foreign affairs.
2. Belligerent & insurgent communities
- Rebels and insurgents are organized group with no rights under the international law but if civil strife threatens
to interfere with autonomy of foreign intercourse and tends to jeopardize sovereignty of the state over the
insurgent community certain insurgent rights may be tacitly admitted.
- if the act is piracy then it is private in character and ends are not political and no insurgent rights arise.
- parent state still liable for acts committed by the insurgent community within the jurisdiction of said parent
state even if foreign state admits existence of insurgent rights.
- if hostile acts are committed by insurgents against a foreign state the latter may choose to punish them or turn
them over to the parent state.
- foreign states ought to refrain from interfering in hostilities between parent state and insurgent community.
Bellingerent
community
rights
arise
when:
1.
End
must
be
political
in
character
2. Hostilities must be a character of war and carried out in accordance with law of war
3.
Proportion
of
revolts
must
be
to
render
the
issue
uncertain
4. The conduct of hostilities and general government of the revolting community must be in the hands of a
responsible
organization.
Recognition of the international personality status of a bellingerent community in the international order is
ONLY
FOR
LIMITED
PERIOD
OF
TIME.
3. Colonies, dependencies and possession
- they cannot be states but the international legal order grants them international personality in a restricted
degree (sign international conventions and become member of United Nations.
- COLONY is a dependent community with a number of citizens but remain subject to mother state.
- DEPENDENCY is a territory distinct from country in which the supreme sovereign power resides but belonging
rightfully to it subject to laws and regulations which the sovereign may think proper to prescribe.
- POSSESSION is
4.
held
by
title
Mandate
other
and
than
that
of
mere
physical
trust
conquest.
territories
MANDATES - former territorial possessions of states defeated in the First World War and placed under control
ofLeague of Nations. They are afforded the chance to develop economically and socially by more advanced
nations.
TRUST TERRITORIES - under UN supervision, the Administering Authority exercising sovereignty power over them.
5.
Public
and
political
corporations
or
companies
- private corporations fall under private international law but are also involved in public international law when in
time of war their property and other rights are impaired or when maritime law has been infringed.
6. International administrative bodies
- vested with international personality as they are beyond the control and authority of any particular state
including the region in which seat of the organization may be situated.
Object of Public International Law
indirectly
vested
with
rights
and
obligations
in
the
international
sphere
- ex: filipino private citizen ( who while entitled to certain rights which other states ought to respect has no
recourse except to course his grievances through the Republic and its diplomatic officers)
ii.
- norms of general international law prohibiting piracy (committed only by private individuals and not by acts of
state)
espionage
rules
-court
practice
of
permitting
foreigners
to
prosecute
claims
rules
safeguarding
rights
of
alines
and
minorities
punishment
on
illegal
use
of
flag.
procedures
in
admiralty
and
maritime
matters
- special status accorded to refugees
NOTE: INDIVIDUALS therefore are TRUE SUBJECTS IF INTERNATIONAL LAW and STATES are only AGENTS
through which they act in default of more convenient means of giving effects to their common interests.
sufficient
degree
of
civilization
Basis
- existence presupposes its right to survive which is predicated not only to physical maintenance of its territorial
integrity but also physical expansion that follows valid acquisition of territories. When its existence is in jeopardy
it has a right of self preservation.
1. The right to acquire territories
a. Modes of acquiring territories
1. discovery and occupation
- only stateless territory could be acquired by discovery and occupation.
- Discovery should be coupled with occupation. An effective occupation is one that would
effectively take real possession of the territory and establish some kind of administration.
2. prescription (acquisitive prescription)
- must be continuous, public and adverse whether good or bad faith of some other states territory
and there must be a lapse of reasonable period of time.
3. cession
- territory is acquired voluntarily in case of donation or sale or involuntary as in the result of war.
- perfection of cession commences upon meeting of minds.
- mere lease effectuated by the owner in favor of another state cannot transfer ownership. A state
making the cession is a mere usurper or intruder with no transferable right, the cession is purposeless and
inefficacious.
4. conquest and subjugation
- CONQUEST is the acquisition of the sovereignty of a country by force of arms exercised by an
independent power.
- Mere physical conquest gives an INCHOATE TITLE; for this title to ripen into ownership
subjugation must follow.
- SUBJUGATION takes place if the formal cession is made in the TREATY OF PEACE.
- TREATY OF PEACE is essentially entered into through the use of force and intimidation.
- Under the general international law, while duress usually vitiates the consent given to a treaty,
an EXCEPTION is the TREATY OF PEACE for such treaty is precisely entered into as a result of fear.
- Present UN Charter however the use of threat and force is considered illegal.
5. accretion
- is the process of attaching or incorporating something to what an owner of territory already has.
- may be natural (caused by natural force such as current of river) or artificial (as in act of state in
reclaiming part of sea in reclamation projects).
b. Modes of losing territories
1. Abandonment (must be physical abandonment of the property with the intent never to return to the
same).
An armed attack
2.
3.
DOCTRINE OF SELF-HELP
- the right to self-defense which is an extension of the right to self-preservation hence under the general
international law the right continues to exist even if attack is made against a non-UN member state.
ALLIANCE EXISTS
- because members of UN have implicit faith in each others desire for world peace.
- some members feel the necessity of taking measures to give maximum feeling of security either thru mutual
protection or by outright combination of strength.
3. Cases
Island of Palmas Case
Facts: In the 16th Century Spain discovered an island midway between Mindanao and Dutch East Indies.
HoweverSpain did not effectively possess the territory. It was Holland which exercised authority over the land. As a
successor of Spain, the US asked that the island be awarded to it.
Held: The island cannot be given to the US for the inchoate title possessed by Spain never ripened into a real title
for its failure to effectively possess and administer the territory within a reasonable period of time.
Inchoate Title discoverer must be given full opportunity to effectively possess and in the meantime other states
are legally excluded from the occupation of the territory involved.