Public International Law Bagus.Belino.David.DelAyre.Nadora.

Say
Atty. Celia Valdez 2019-2020 2nd Year-2ndSemester

I. General Principles
A. Definition
International Law- composed of laws, rules, principles of general application.
- Deals with the conduct of states and international organization
- Deals with the international organization relations with person whether natural or juridical.

International Law (traditional definition)- a body of rules and principles of action which are binding upon civilized
states in their relations to one another.

(Restatement of Foreign Relations Law of US definition)- law which deals with the conduct of states and of
international organizations and with their relations inter se and with some of their relations with persons, whether
natural or juridical.

Distinction between Public and Private International Law

PRIVATE (Conflicts of Law) PUBLIC (International Law)

1. It is not imposed upon but simply adopted by 1. Issued by a political … for observance by those
states as a common rule of action among under its authority
themselves

2. Consist mainly of enactments from lawmaking 2. Is derived not from any particular legislation but from
authority of each state sources as international customs, international
conventions and the general principles of law

3. Regulates the relations of individuals among 3. Applies to relations inter se of states and other
themselves or with their own states international persons

4. Violations of municipal law are addressed 4. Questions of public international law are resolved
through local and administrative judicial through state-to-state transactions ranging from
process peaceful methods like negotiation and arbitration to the
hostile arbitrament of force like war

5. Breaches of municipal law generally entail only 5. Responsibility for infractions of international law is
individual responsibility usually collective in the sense that it attaches directly to
the state and not to its nationals

When can a State acquire juridical personality?

- A states acquires juridical personality when:
1. It has its own government
2. Own population
3. Specific territory; and
4. recognized by other states

Historical Development of International Law

1. Ancient International Law
- Peace treaties between Mesopotamia city states of Lagash and Umma (approximately 2100 B.C.E)
- Agreement between Egyptian Pharoah Ramses II and Hittite King Hattusillis III (1258)
2. Modern International Law

Significant Milestones in the Development of International Law

1. The Peace of Westphalia
- Ended the 30 years war (1618-1648)
- Established a treaty based framework for peace cooperation
2. Congress of Vienna
Public International Law Bagus.Belino.David.DelAyre.Nadora.Say
Atty. Celia Valdez 2019-2020 2nd Year-2ndSemester

- Ended the Napoleonic wars

- Created a system of multilateral political and economic cooperation
3. Covenant of the League of Nations (1920)
- Included the treaty of Versailles which ended WW1
- Created the Permanent Court of International Justice
4. Founding of the UN
- In the aftermath of WW2
- Shift of power away from Europe and the beginning of a truly universal institution
- Decolonization
- Expansion of membership to the UN
5. The Cold War
- Peace maintained through the balancing of the two superpowers: US and its allies vs Soviet Union
6. The Dissolution of the Soviet Union
- End of the Cold War
- Re-emergence of the international relations based on multiple sources of power and not mainly on
ideology
- Baltic states restored to statehood
- Collapse and fragmentation of Yugoslavia

Father if International Law: Alberico Gentili

B. Principles
Limits to International Law
1. Jus Cogens - “compelling law” designates norms from which no derogation is permitted by way of particular
agreements. “Peremptory norms”
2. Pacta Sunt Servanda - “agreements must be kept in good faith”
3. Par in Parem non habet Imperium - agreement of states based on sovereign equality. One does not have
dominion on another. Agreement on equal footing.

Why is there a need of a law?

- To regulate behavior and make things easier and more convenient

C. Scope of international Law

1. States 2. Individuals 3. Organizations 4. Subject 5. Persons (natural or juridical)
- It extends to the interest of all international and domestic life including:
a. Regulation of airspace expeditions
b. Division of ocean floor
c. Protection of human rights
d. Management of financial systems
e. Regulation of environment

D. Constitutional Provisions Related to International Law

Article II: DECLARATION OF PRINCIPLES AND STATE POLICIES
Section 2. 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.

Article VII: Executive Department

Section 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with
the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The
Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a
complete report of its decision on applications for loans to be contracted or guaranteed by the Government or
Public International Law Bagus.Belino.David.DelAyre.Nadora.Say
Atty. Celia Valdez 2019-2020 2nd Year-2ndSemester

government-owned and controlled corporations which would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.

Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds
of all the Members of the Senate.

Article XVIII: Transitory Provisions

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by
the other contracting State.

E. Basis of International Law

1. Naturalist school of thought- there is a natural and universal principle of right and wrong, independent of any
mutual intercourse or compact, which is supposed to be discovered and recognized by every individual
through the use of his reason and his conscience.
2. Positivists- who that the binding force of international law is derived from the agreement of sovereign states
to be bound by it.
3. Eclectics or Grotians- both the law of nature and the consent of states as the basis of international law.
4. Belief of States- International law exists because states believe it exists.

F. Sources of International Law

1. Custom - general and consistent practice of states followed by them from a sense of legal obligation
Elements: A. Actual behavior of states: duration (may be short or long), consistency (continuity and
repitition), and generality of the practice of states.
Opinio Juris - the belief that a certain form of behavior is obligatory, is what makes practice an international
rule.
Evidence of State Practice - Treaties, diplomatic correspondence, statements of national leaders and
political advisers, as well as the conduct of states.
2. Treaties and other international agreements - This is where the principle of Pacta Sunt Servanda is used.
Jus Cogens - “compelling law”. It designates norms from which no derogation is permitted by
way of particular agreements.
3. Generally recognized principles of law -
4. Judicial decisions - “decisions of the court have no binding force except between the parties and in respect
of that particular case”
5. Teachings of highly qualified and recognized publicists -
6. Equity - (not at all times recognized)
Intra Legem (within the law) - the law is adapted to the facts of the case
Praeter Legem (beyond the law) - used to fill the gaps within the law
Contra Legem (against the law) - refusal to apply the law which is seen as unjust.

G. The United Nations Charter

H. International Court of justice

The primary United Nations organ for the settlement of disputes is the International Court of Justice. Also known as
the World Court, it was founded in 1946. Since its founding, the Court has considered over 170 cases, issued
numerous judgments and issued advisory opinions in response to requests by UN organizations. Most cases have
Public International Law Bagus.Belino.David.DelAyre.Nadora.Say
Atty. Celia Valdez 2019-2020 2nd Year-2ndSemester

been dealt with by the full Court, but since 1981 six cases have been referred to special chambers at the request of
the parties.

This main body of the UN settles legal disputes submitted to it by States in accordance with international law. It also
gives advisory opinions on legal questions referred to it from authorized UN organs and specialized agencies. The
Court is composed of 15 judges, who are elected for terms of nine years by the General Assembly and the Security
Council.

In its judgments, the Court has addressed international disputes involving economic rights, rights of passage, the
non-use of force, non-interference in the internal affairs of states, diplomatic relations, hostage-taking, the right of
asylum and nationality. States bring such disputes before the Court in search of an impartial solution to their
differences based on law. By achieving peaceful settlement on such questions as land frontiers, maritime boundaries
and territorial sovereignty, the Court has often helped to prevent the escalation of disputes.

I.International Criminal Court

The idea of a permanent international court to prosecute crimes against humanity was first considered at the United
Nations in the context of the adoption of the Genocide Convention of 1948. For many years, differences of opinions
forestalled further developments. In 1992, the General Assembly directed the International Law Commission to
prepare a draft statute for such a court. The massacres in Cambodia, the former Yugoslavia and Rwanda made the
need for it even more urgent.

The International Criminal Court (ICC) has jurisdiction to prosecute individuals who commit genocide, war crimes and
crimes against humanity. It will also have jurisdiction over the crime of aggression when an agreement is reached on
the definition of such a crime. The ICC is legally and functionally independent from the United Nations, and is not a
part of the UN system.

The cooperation between the UN and the ICC is governed by a Negotiated Relationship Agreement. The Security
Council can initiate proceedings before the ICC, and can refer to the ICC situations that would not otherwise fall
under the Court’s jurisdiction. The Court has 18 judges, elected by the states parties for a term limited to nine years,
except that a judge shall remain in office to complete any trial or appeal which has already begun. No two judges can
be from the same country.

II. 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 those who have
international personality
- They are considered actors in the international legal system
- They are distinct from objects of international law. (Objects of international law are those who indirectly
have rights under international law through the subjects of international law)

A. Who are these subjects of International Law?

Q: Who are the subjects of International Law?

A: States are the main subjects of International law. However, there are the so called others and these are the
following: International organizations, insurgents, liberation movements, and individuals

State - it 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.
Public International Law Bagus.Belino.David.DelAyre.Nadora.Say
Atty. Celia Valdez 2019-2020 2nd Year-2ndSemester

● The traditional statement of characteristics which make an entity a state is found in the Montevideo
Convention of 1933 on Rights and Duties of States.

B. Elements

Q: What are the elements of a state according to the Montevideo Convention

A: 1. Permanent Population
2. Defined Territory
3. Government
4. The capacity to enter into relations with other States

Permanent Population - A group of individuals of both sexes, living together as a community. They must be
sufficient in number to maintain the permanent existence of the community and held together by a common bond of
law.

Defined Territory - A definite territory over which an entity exercises permanent sovereignty. It may be as large as
China.

Government - defined as the institution or aggregate of institutions by which an independent society makes and
carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed
upon the people forming that society by those who possess the power or authority of prescribing them.
● International law does not specify what form of government a state should have
● A temporary absence of government, for instance during an occupation by foreign power, does not terminate
the existence of a state.
● Under international law, a government is merely an element of a State. As such, regardless of how many
times a government changes, such changes generally have no effect on Statehood.

Capacity to enter into relations with other states (attributed by Bernas as Sovereignty, Nachura disagrees with
Bernas) - Independence from outside control.
● An entity may in fact possess all the elements of the state but if one or more states do not extend
recognition to it, the entity would not be able to establish relations with those states.

C. Recognition of States - When State A recognizes State B, it means that both recognize the capacity of each
other to exercise all the rights belonging to statehood.
● Recognition thus means the act of acknowledging the capacity of an entity to exercise rights belonging to
statehood.

Q: Can an entity claim to be a state before it is recognized by other states?

A: There are two views on this: The Declaratory theory and The Constitutive theory.

Q: What is the Declaratory theory?

A: Declaration 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.
● In Declaratory theory, recognizing merely accepts an already existing situation.

Q: What is Constitutive theory?

A: Recognition constitutes a state. It is what makes a state a state and confers legal personality on the entity.
● In Constitutive theory, states may decide to recognize an entity as a state even if it does not have all the
elements of a state found in the Montevideo Convention

Q: What are the Characteristics of Statehood?

A: Although the legal consequences of Statehood are still being explored, there are nevertheless characteristics of
Statehood which cannot be denied. Among these are the ability to enter into treaties and other agreements with other
Public International Law Bagus.Belino.David.DelAyre.Nadora.Say
Atty. Celia Valdez 2019-2020 2nd Year-2ndSemester

States, exclusive competence with respect to purely domestic affairs, freedom from the jurisdiction of international
tribunals such as the ICJ unless the state gives its consent, and equality among others.

Kinds of Recognition
a. De facto Recognition - Extended by the recognizing State, which believes that some of the requirements
for recornition are present. Recognition is generally provisional and limited to certain juridical relations . It
does not bring about full diplomatic intercourse.
b. De jure Recognition - Extended to a government fulfilling the requirements for recognition. Recognition is
relatively permanent, brings about full diplomatic intercourse and observance of diplomatic immunities.

Fundamental Rights of States.

a. Independence - capacity of a state to provide for its own well-being and development free from the
domination of other states.
● As a right, independence means the right to exercise within its portion of the globe, to the exclusion of
others, the functions of a state.
● Flowing from Independence are certain other rights such as jurisdiction over its territory and permanent
population, right to self defense and right of legation.
● Independence also involves the duty not to interfere in the internal affairs of other states.

b. Equality - Equality of legal rights irrespective of size or power of the state.

● The UN Charter, Article 2 provides that the Organization is based on the principle of the sovereign equality
of all its members. Hence, each has one vote in the General Assemble and every state may aspire for the
offices in the various organs of UN

c. Peaceful co-existence -