You are on page 1of 4

TREATIES

An international agreement concluded between States in written form and


governed by international law, whether embodied in a single instrument or in
two or more related instruments and whatever its particular designation.
A treaty is a compact made between two or more independent nations with a
view to the public welfare treaties are for a perpetuity, or for a considerable
time. Those matters which are accomplished by a single act, and are at once
perfected in their execution, are called agreements, conventions & pactions.
This agreement entails rights and obligations on both parties thereto.
CONVENTIONS
This term is used for the agreements that address technical issues, w/c results
in a technical or professional effect that is known to be an international
practice.
A convention is an intl agreement that is less important than the convention,
though some international instruments do not differentiate between them.
A convention addresses, in particular, technical aspects, such as social,
economic, trade, postal, consular, military affairs, etc., or the settlement of a
dispute between two parties, & identification of both parties rights &
obligations.
A convention implies general international principles and rules which the
signatories undertake to respect and observe, such as, for example, The
Hague Convention and Geneva multi-purpose conventions. The term
convention is used to denote the agreements that are of less important or for
specific purpose, though all of them have same binding force, and each is
used for specific purposes.
IS THERE A HEIRARCHY OF COURCES OF PIL?

On the question of preference between sources of international law, rules


established by treaty will take preference if such an instrument exists.
It is also argued however that international treaties and international custom
are sources of international law of equal validity; this is that new custom may
supersede older treaties and new treaties may override older custom.
Certainly, judicial decisions and juristic writings are regarded as auxiliary
sources of international law, whereas it is unclear whether the general
principles of law recognized by 'civilized nations' should be recognized as a
principal or auxiliary source of international law.

INTERNATIONAL CUSTOMARY LAW (Usage & Practice)

It is a LONG and ESTABLISHED WAY of DOING THINGS under the


conviction of what is right and wrong.
A general and consistent practice of states followed by them from a sense of
legal obligation.
Legal norms or rules adopted by States in their legal system. Examples are:
Pacta Sunt Servanda,
Res Judicata,
Double Jeopardy, Etc

EXCEPTIONS TO THE REQUISITES OF VOLUNTARY CONSENT.


1. JUS GOGENS
Compelling law or Peremptory norm
2. OBLIGATION ERGA OMNES
SECONDARY SOURCES OF PIL
1.

2.

Decisions of Courts
Pro Hac Vice For this particular purpose only
Stare Decisis It is NOT applicable
Writings of Publicists
Anyone can write as long as it is UNBIASED.

SOFT LAW vs. HARD LAW


Soft Law
Refers to quasi-legal instruments which do not have any legally
binding force, or whose binding force is somewhat "weaker" than the
binding force of traditional law
Hard Law
Hard law means binding laws.

To constitute law, a rule, instrument or decision must be authoritative &


prescriptive. In international law, hard law includes SELF EXECUTING
treaties or international agreements, as well as customary laws.
OPINIO JURIS
Once the existence of state practice has been established, it becomes
necessary to determine why states behave the way they do. Do states behave
the way they do because they consider it obligatory to behave thus or do they
do it only as a matter of courtesy? 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.
As the Nicaragua case again put it:
... [f]or a new customary rule to be formed, not only must the acts concerned
amount to a settled practice, but they must be accompanied by the opinio
juris sive necessitatis. Either the States taking such action or other States in a
position to react to it, must have behaved so that their conduct is evidence of
a belief that this practice is rendered obligatory by the existence of a rule of
law requiring it.
PERSISTENT OBJECTOR
A state which persistently objects to an emerging norm is not bound by the
norm once it gains the status of customary international law.
Here are two conditions a state must fulfill in order to opt out of the new
customary rule.
1. 1st, the state must object when the rule is in its nascent stage, and
continue to object afterwards. Evidence of objection must be clear,
and the objector state must rebut a presumption of acceptance. Silence
or failure to object is interpreted as consent.
2. 2nd, the objection must be consistent. A state may not object some of
the time, apply the rule at other times, and still be a persistent objector.
STATE
GROUP of PEOPLE living together in a DEFINITE TERRITORY under an
INDEPENDENT GOVERNMENT organized for POLITICAL ENDS with the
capacity to ENTER into INTERNATIONAL RELATIONS.
ELEMENTS OF STATE:
1. People Must be numerous enough to be self-sufficing and to defend
themselves and small enough to be easily administered and sustained
2. Territory The Fixed Portion of the surface of the earth in habited by the
people of the State.
3. Government The agency or instrumentality through which the will of the
State is formulated, expressed and realized.
4. Sovereignty The Power to direct its own external affairs without
interference or dictation from other states.
SUBJECTS OF PIL
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. In other words, they are those who have
international personality.
OBJECTS OF PIL are NOT directly governed by PIL but DOMESTIC LAW.
Objects of international law are those who indirectly have rights under or are
beneficiaries of international law through subjects of international law.
CLASSIFICATIONS OF STATES:
1. INDEPENDENT or COMPLETE STATE
Having full international personality.
Sovereignty connotes freedom in the direction by the state in its
own internal and external affairs.
However international law is concerned only with this freedom in so
far as it relates to external affairs; hence, a state which is not subject
to dictation from others in this respect is known as an independent
state.
2. DEPENDENT or INCOMPETE STATE
Exemplified by the suzerainty and the protectorate and are so called
because they do not have full control of their external relations.
Dependent states fall into two general categories: the protectorate
and the suzerainty. However, there is no unanimity as to their basic
distinctions in terms of measure of control over its external affairs.
3. NEUTRALIZED STATE

An independent state, whether it be simple or composite, may be


neutralized through agreement with other states by virtue of which the
latter will guarantee its integrity and independence provided it refrains
from taking any act that will involve it in war or other hostile activity
except for defensive purposes.

CLASSIFICATIONS OF AN INDEPENDENT OR COMPLETE STATE


1.
2.

SIMPLE STATE one which is placed under a single and centralized


government exercising power over both its internal and external affairs (e.g.
Philippines and Holland).
COMPOSITE STATE one which consists two or more states, each with its
own separate government but bound under central authority exercising, to a
greater or less degree, control over their external relations.

Kinds or Categories of Composite States:


a) REAL UNION created when two or more states are merged under a unified
authority so that they form a single international person through which they act
as one entity.
b) FEDERAL UNION (or a federation) is a combination of two or more
sovereign states which upon merger cease to be states, resulting in the
creation of a new state with full international personality to represent them in
their external relations as well as a certain degree of power over the domestic
affairs and their inhabitants.
CLASSIFICATIONS OF A DEPENDENT OR INCOMPLETE STATE
TRADITIONAL VIEW:
a.
b.
c.
d.

PROTECTORATE By virtue of this treaty, a STRONGER STATE will


commit to PROTECT or render assistance to a weaker State (Economic,
military, etc)
SUZERAINTY or VASSAL A WEAKER STATE will PAY a homage or
vassalage to the STRONGER STATE with the commitment of the latter to
PROTECT the former.
DEPENDENCIES & COLONIES May be geographically separate from the
Mother State, a COLONY still maintain OBEDIENCE to the former.
MANDATES & TREATIES Territories under the protection of an
International Organization or league of nations. (e.g. Treaty of Versailles)

MODERN VIEW
a.

VATICAN CITY It is considered as a State because it possesses all the


elements of a State.
Lateran Treaty for the purpose of assuring to the Holy See absolute
and visible independence and of guaranteeing to it absolute and
indisputable sovereignty in the field of international relations.
b. TAIWAN Imperfect and Incomplete subject of PIL.
Two-China Policy Mainland China will not deal with you.
One-China Policy If you want to interact with China, you have to
recognize or adopt the One-China Policy (Philippines adopts this policy).
SOVEREIGNTY

Definition under MUNICIPAL LAW It is the Supreme, absolute and


uncontrollable power by which an independent state is governed. It only
means the power or authority of the state to enforce or implement its own
laws without any interference from outside force.
Definition under PIL
It is also called EXTERNAL SOVEREIGNTY with the concept of
INDEPENDENCE.
It is the International Personality of a State to enter into LEGAL
RELATIONS with other states.

IS SOVEREIGNTY ABSOLUTE? (Yes in Municipal Law)

As understood in PIL, sovereignty can be subject to LIMITATIONS and


RESTRICTIONS to whom it gives its consent. (e.g. Treaty)

WHAT IS THE PRINCIPLE OF AUTO-LIMITATION OF SOVEREIGNTY?

It is the State by way of its VOLUNTARY CONSENT which can RESTRICT


its sovereign rights.
W/O the VOLUNTARY CONSENT of a State, the Principle does not apply.

RECIPROCITY vs. AUTO-LIMITATION OF SOVEREGNTY

RECIPROCITY is a give and take relationship among States. It is the


practice of EXCHANGING THINGS w/ other countries for MUTUAL benefits.

RECIPROCITY is the underlying reason for AUTO-LIMITATION of State. In


AUTO-LIMITATION, if a State wants BENEFITS, then it will SUBMIT to
RECIPROCITY.

DE FACTO AND DE JURE GOVERNMENTS


A de jure government (government of law) is an organized government of a
state which has the general support of the people.
A de facto government (government of fact) is a government which actually
exercises power or control but w/o legal title. Illegal. Not Supported by Law.
STATE CONTINUITY
A States INDENTITY as an international legal person PERSISTS
notwithstanding a constitutional or even violent changes of government.
Changes in the government or the international policy of a state do not as a
rule affect its position in international law.
States may change between forms of government without ceasing to be that
state in the eyes of international law, or in terms of its international
obligations.
A State is bound by engagements entered into by governments that have
ceased to exist; the restored govt is generally liable for the acts of the
usurper.
ACT OF A STATE DOCTRINE
Every State is bound to RESPECT the INDEPENDENCE of every other
sovereign states and the COURTS will NOT sit on judgment on the ACTS of
the GOVERNMENT of ANOTHER done WITHIN ITS TERITORRY.
NON-SUABILITY
A State cannot be sued in its own courts.
As applied to PIL, a State CANNOT be SUED WITHIN the courts of
ANOTHER state without its consent.
EXCEPTIONS:
There must be CONSENT
INDIVIDUALS, with or without representation of State can file directly in
international court provided that local laws have been exhausted.

OTHER SUBJECTS:
INTERNATIONAL ORGANIZATIONS
ESPECIALIZED AGENCIES
They are also entitled to IMMUNITY. Why?

NOT SOVEREIGNTY but FUNCTIONAL INDEPENDENCE, freedom from


national control for the EFFECTIVE exercise of its function.

CLASSICAL/ABSOLUTE THEORY
A SOVERIGN CANNOT be made a respondent in the courts of another
without its consent.
NEWER/RESTRICTIVE THEORY
The IMMUNITY of the sovereign is recognized ONLY with regard to PUBLIC
ACTS or ACTS JURE IMPERII of the State.
JURE IMPERII IMMUNITY for PUBLIC or SOVEREIGN ACTS
Immunity of the Sovereign is recognized only with respect to PUBLIC ACTS.
The act is in pursuit of a SOVEREIGN ACTIVITY. It is NOT undertaken for gain
or profit. And NOT engaged regularly in a BUSINESS or trade.
JURE GESTONIS PRIVATE ACTS

Act which is engaged in the REGULAR COURSE of business.


Commercial in nature

DOCTRINE OF SUGGESTION (Determination > Suggestion)


A foreign State or the intl organization must FIRST SECURE an EXECUTIVE
ENDORESMENT of its claim of sovereign or diplomatic immunity.
It is the determination whether a foreign government or international
organization is entitled to immunity from suit.
________________________________________
OBJECTS OF PIL

NOT directly governed by the rules of PIL.


Has NO direct International personality

Are INDIVIDUALS SUBJECT to PIL?


TRADITIONAL VIEW Individuals are mere subjects of PIL
MODERN VIEW Grouping tendency to recognize indivls as subject of PIL.