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Public International Law

Function of international law

a. is to establish peace and order in the community of nations
b. to prevent employment of force, including war, in all international relations
c. to promote world friendship by leveling the barriers that have obstructed the fostering of a closer understanding in the family of
d. to encourage and ensure greater international cooperation in the solution of certain common problems of a political, economic,
cultural or humanitarian
e. aims to provide for the orderly management of the relations of states on the basis of the substantive rules they have agreed to
International Law Define;
International Law may be defined as the body of rules and principles of action which are binding upon civilized states in their relationships
with one another.
International Law is founded upon the principles of:
1. reciprocity
2. comity
. independence, and
!. e"uality of #tates
$hese principles were adopted as part of the law of our land under %rticle II, #ec. 2 of the 1&'( constitution, which provides:
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 !doctrine of incorporation"
Doctrine of Transformation ) provides that the generally accepted rules of international law are not per se binding upon the state but must
first be embodied in legislation enacted by the lawma*ing body and so transformed into municipal law. +nly when so transformed will they
become binding upon the state as part of its municipal law.
Di#isions of International Law
a. $he law of Peace ) laws governing the normal relations of #tates
b. $he Law of ,ar ) during the period of hostilities, the #tates in conflict with one another is under the law of war.
c. $he law of neutrality ) #tates not involved in the war continue to be regulated under the law of peace however, their relations with
the belligerents, or those involved in the war, are governed by the laws of neutrality.
Two $ranches of International Law
1. -us .entium ) Laws of nations
2. -us Inter .entes ) %greements among nations
Pri#ate #s Pu%lic International Law
Public International Law or laws of nation:
a. defines the very e/istence of states
b. provides the framewor* for diplomatic relations
c. governs international agreements
d. sets forth rules for international commerce
e. governs individual human rights, and
f. regulates protection of the global environment
In fine, it regulates the political intercourse of nations with each other or concerns "uestions of rights between nations. It is the law that
deals with the conduct of #tates 0 International organizations, their relations with each other, 0 in certain circumstances, their relations with
person or 1uridical entity.
Pri#ate International law or conflict of laws
is that which regulates the comity of states in giving effect in one to the municipal laws of another relating to private persons
or concerns the rights of persons within the territory of one state or nation, by reason of acts, private or public, done within the
dominion of another
%nd is based on the principle that one country will respect and give effect to the laws of another so long as it can be done
consistently with its own interest.
&unicipal Laws
Laws that are binding upon the citizens and other resident in the country, which are promulgated by the legislature, enforce by the
e/ecutive department, and the law being interpreted by the 1udiciary.
International Law #s &unicipal Law
International Law:
1. Is a law not above, but between, sovereign states and is, therefore, a wea*er law.
2. #ource: derived from International 2onventions, customs, general principles of law, writings of well3*nown publicists and scholars,
and 1udicial decisions and in 1ustice and fairness
. 4egulates the relations inter se of #tates and other international persons
!. If a country violates international law, its responsibility is usually collective in the sense that it attaches directly to the state and not
to its nationals.
5. "uestion of International Law is resolved through state to state transaction li*e peaceful negotiation and arbitration
&unicipal Law
1. is a law of a sovereign over those sub1ected to his sway
2. #ource: consist mainly of enactments from the lawma*ing body of each #tate
. 4egulates the relations of individuals among themselves or with their own states
!. 6reaches of municipal law entail only individual responsibility
5. violation of municipal law are redressed through local administrative or 1udicial process
a. +n the 7omestic sphere, with the local court deciding:
!'uroda #s (alandoni, )* +, )*-*"
$he rules and regulations of the 8ague and .eneva 2onventions, which are generally accepted principles of international law, form part of
the law of our nation even if the Philippines was not a signatory to the conventions embodying them since our 2onstitution has been
deliberately general and e/tensive in its scope and is not confined to the recognition of rules and principles of international law. $hus,
respondent 9ilitary 2ommission has 1urisdiction over the dispute.
:Lim vs. ;/ec. #ec., %pril 11, 2<<2= ) generally accepted principles of International Law, the provisions of a treaty are always
sub1ect to "ualification or amendment by a subse"uent law, or that it is sub1ect to the police power of the #tate.
$he doctrine of incorporation is applied whenever municipal tribunals :or local courts= are confronted with situations in which there
appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. ;fforts
should first be e/erted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted
with proper regard for the generally accepted principles of international law in observance of the Incorporation 2lause in the above3
cited constitutional provision :.ru/, Philippine Political Law, 1&&> ed., p. 55=. In a situation, however, where the conflict is
irreconcilable and a choice has to be made between a rule of international law and municipal law, 1urisprudence dictates that
municipal law should be upheld by the municipal courts :Ichong #s 0ernande/, 1<1 Phil. 1155 ?1&5(@A ,on/ales #s 0echano#a, &
#24% 2< ?1&>@A In re1 ,arcia, 2 #24% &'! ?1&>1@= for the reason that such courts are organs of municipal law and are
accordingly bound by it in all circumstances :2alonga 3 4ap, op cit, p. 1=. $he fact that international law has been made part of
the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal
sphere. $he doctrine of incorporation, as applied in most countries, decrees that rules of international law are given e"ual standing
with, but are not superior to, national legislative enactments. %ccordingly, the principle le5 posterior derogat priori ta*es effect ) a
treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as
the 4epublic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution ?#ec. of
-ustice vs. Lantion@
$here is no obligatory rule derived from treaties or conventions that re"uires the Philippines to recognize foreign 1udgments, or allow
a procedure for the enforcement thereof. 8owever, generally accepted principles of international law, by virtue of the incorporation
clause of the 2onstitution, form part of the laws of the land even if they do not derive from treaty obligations. $he classical
formulation in international law sees those customary rules accepted as binding result from the combination two elements: the
established, widespread, and consistent practice on the part of #tatesA and a psychological element *nown as the opinion juris si#e
necessitates :opinion as to law or necessity= . Implicit in the latter element is a belief that the practice in "uestion is rendered
obligatory by the e/istence of a rule of law re"uiring it. :9i1ares, et al. vs. -avier, et al., %pril 12, 2<<5=
b. 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
#tateBs 2onduct.
Principle of Pacta 2unt 2er#anda 6agreements must %e 7ept8
In general sense, the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that
non3fulfillment of respective obligation is a breach of pact.
,ith reference to international agreement, every treaty in force is binding upon the parties to it and should be performed by them in good
faith and it may not invo*e provisions in its constitution or municipal laws as 1ustification for a failure to perform.
$he only limit to pacta sunt servanda are the peremptory norms of general international law called 1us cogens.
Prinicple of jus cogens compelling law
2ustomary international law which has the status of a peremptory norm of international law.
% peremptory norm is a norm accepted and recognized by the international community of states as a rule, from which no derogation is
permitted and which can be modified only by a subse"uent norm having the same character. ;/amples are slave trade, piracy, and
terrorism. +fficial torture of prisonersCdissenters was a violation of the principle of 1us cogens.
2upranational Law
#upranational law is a form of international law, based on the limitation of the rights of sovereign nations between one another. It is
distinguished from public international law, which involves the Dnited Eations, the .eneva conventions, or the Law of the #ea, because in
supranational law, nations e/plicitly submit their right to ma*e 1udicial decisions to a set of common institutions.
Dual .haracteristic of 2upranationalism
1. Eormative #upranationalism:
$he 4elationships and hierarchy which e/ist between 2ommunity policies and legal measures on one hand and the competing
policies and legal measures of the 9ember states on the other. :$he ;/ecutive 7imension=
2. 7ecisional #upranationalism:
$he institutional framewor* and decision ma*ing by which such measures are initiated, debated, formulated, promulgated and
finally e/ecuted. :$he Legislative3-udicial 7imension=
;/amples of #upranational Law )
1. 9uropean :nion Law ) ;uropean 2ommunity law is the first and only e/ample of a supranational legal framewor*. In the ;2,
sovereign nations have pooled their authority through a system of courts and political institutions. $hey have the ability to enforce
legal norms against and for member states and citizens, in a way that public international law does not.
2. :nion of 2outh ;merican <ations 3 $he Dnion of #outh %merican Eations is an organisation on the #outh %merican continent. It
declared in 2<<! its intention to establish a framewor* a*in to the ;uropean Dnion by the end of 2<<(. It is envisaged to have its
own passport and currency, and limit barriers to trade.
$asis of International Law
a The law of nature
Dnder this theory, there is a natural and universal principle of right and wrong, independent of any mutual intercourse, which can be
discovered and recognized by every individual through the use of his reason and conscience. #ince individuals compose the #tate whose
will is but the collective will of the inhabitants, the #tate also becomes bound by the law of nature.
% The positi#ist
$he binding force of international law is derived from the agreement of the #tates to be bound by it. In this conte/t, international law is not a
law of subordination but of coordination.
c The 9clectic or ,rotain
6oth law of nature and the consent of the state are the basis of international law since the system of international law is based on the
dictate of right reason as well as the practice of states. In case of conflict, the natural law prevails being more fundamental law.
2anctions of International Law
In the absence of specific methods for the enforcement of its rules, why international law is being faithfully observed by the community of
nationsF Eations are compelled to obey to international law and its percepts because of the compulsi#e force of reciprocal ad#antage and
fear of retaliation
95ample of which are1
a. the belief of the many states that its observance will redound to the welfare of the whole society of nations
b. because of normal habits of obedience ingrained in the nature of man as a social being
c. desire to pro1ect an agreeable public image in order to maintain a goodwill and to win the sympathy and support of the other
countries for their respective ideologies
d. constant and reasonable fear of retaliation due to violations of international laws
e. there is the machinery of the united nations which proved to be an effective deterrent to international disputes caused by disregard
of the law of nations
9nforcement of International Law, how done;
a. $hrough sanctions of international law
b. $hrough international organizations or regional groups such as the Dnited Eations and the +rganization of %merican #tates
c. $hrough amicable methods :diplomatic tal*s=
d. $hrough 8ostile measures :retorsions and reprisals=
Distinction with other .oncept
International law is also to be distinguished from other closely related concepts.
a. International morality or ethics ) embodies those principles which govern the relations of states from the higher standpoint of
conscience, morality, 1ustice and humanity.
b. International comity ) refers to those rules of courtesy observed by states in their mutual relations
c. International diplomacy 3
International 0umanitarian Law
4eferred to as the laws of war or the law of armed conflict, is the legal corpus comprised of the .eneva 2onventions and $he 8ague
conventions and other subse"uent treaties customary laws, and international law. It defines the conduct and responsibilities of belligerent
nations, neutral nations, and individuals engaged in warfare, in relations to each other and to protected persons, usually civilians. It, thus,
restricts the means and methods of warfare.
$asic rules on I0L
1. Persons hors de combat and those not ta*ing part in war shall be treated and protected humanely
2. it is forbidden to *ill or in1ure an enemy who surrenders or who is hors de combat
. the wounded and sic* shall be treated and protected by the party in the conflict which has them in its power. $he emblem of 4ed
2ross or 4ed 2rescent must be respected as the sign of protection.
!. 2aptured combatant and civilians must be protected against acts of violence or reprisals. $hey shall have the right to correspond
with their families and to receive relief
5. Eo one shall be sub1ected to torture, corporal punishment, cruel or degrading treatment
>. Parties to a conflict and members of their armed forces does not have unlimited choice of methods and means of warfare
(. Parties to a conflict shall at all time distinguish civilian populations and combatants. %ttac* shall be directed solely against military
$ranches of International 0umanitarian Law
1. -us in bello 3 international law regarding acceptable practices while engaged in war and armed conflict. ;/ample of which are the
.eneva convention and the 8ague convention.
2. -us ad bellum ) set of criteria which are consulted first before engaging into war, in order to determine whether entering into war
is 1ustifiable.