Law 111 Public International Law Introduction

Nature, Scope & Evolution What is International Law? - body of rules and principles of action which are binding upon civilized states in their relations to one another
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consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical

What does International Law includes? Preservation of peace Regulation of space expedition Division of the ocean floor Protection of human rights Management of the international financial system Regulation of the environment All interests of contemporary international and even domestic life When does International Law started? Evidence of treaties between Jews and Romans, Syrians and Spartans jus gentium (common to all men) became the law of the Roman Empire Modern international law was started by Hugo Grotius (considered the father of modern international law) principles were derived from Roman/Canon Law Laws of Nations The Laws of Nations was later given the name of international law by Jeremy Bentham Significant milestones in the development of international law: o The Peace of Westphalia (1648) established a treaty based framework for peace cooperation o Congress of Vienna (1815) created a sophisticated system of multilateral political and economic cooperation o Covenant of the League of Nations (1920) ended World War I o The League created the International Court of Justice (ICJ) o The League failed to prevent WWII hence the United Nations was founded in 1945 Sources of International Law Article 38 of the International Court of Justice (ICJ) statute states that: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions (b) international custom, as evidence of a general practice accepted as law (c) the general principles of law recognized by civilized nations
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Law 111 Public International Law Introduction

(d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
1. Customary international law/customary law/customs

General and consistent practice of states followed by them from a sense of legal obligation o Elements: Material Factor: how the states behave the general and consistent practice of states Duration short or long, ancient usage ripening into a rule of international law consistency - continuity and repetition generality of the practice of states substantial Evidence: treaties, diplomatic correspondence, statements of national leaders, conduct of states Subjective Factor: why they behave the way they do states follow this practice out of a sense of legal obligation Opinio Juris Sive Necessitatis the belief that a certain form of behavior is obligatory is what makes practice an international rule A matter of proof burden of proving it falls on the state claiming it Possible for customary law to develop only between several states or even only two states. o Ex. The right of Portugal to pass through Indian territory (ICJ Reports 1960)

Jus Cogens Also known as peremptory norm a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted VCLT, Article 53: a peremptory norm of general international law which is accepted by the international community of states as a whole as a norm from which no derogation is permitted includes genocide, torture, slavery, terrorism 2. Treaties A treaty is an agreement between states, between states and international organizations, or between international organizations, that is binding under international law (something binding under the laws of one state is not international) Treaties are binding and legally enforced upon the parties to it Treaties can be bilateral or multilateral

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Law 111 Public International Law Introduction

3. The general principles of law recognized by civilized nations Principles of municipal law common to the legal system of the world 4. Judicial decisions Art 59 of the ICJ Statute: the decisions of the Court have no binding force except between the parties and in respect of that particular case Decisions of the ICJ is highly persuasive in the international circle and contributed to the formulation of principles that have become international law
5. Teachings of the most highly qualified writers and publicists

Writers world renowned expert in the field of international law Publicists institutions which write on international law

6. Equity An instrument whereby conventional or customary international may be supplemented or modified to achieve justice. Intra legem (within the law) law is adapted to the facts of the case Praeter legem (beyond the law) used to fill gaps within the law Contra legem (against the law) refusal to apply the law that is unjust 7. Other supplementary evidence UN Resolutions o Generally considered recommendatory o If supported by all states opinion juris communis o Reflection of what has become customary international law Soft Law o non-treaty agreements o International agreements not concluded as treaties therefore not covered by the Vienna Convention on the Law of Treaties (VCLT) o Includes administrative rules in which guide states in relation to international organizations may eventually ripen into customary law Private International Law - more commonly called as conflict of laws - domestic law which deals with cases where foreign law intrudes in the domestic sphere, whether domestic or foreign law applies - governs the activities of individuals, corporations, and

Public vs. Private International Law Public International Law - referred to as international law - customs, treaties etc. that is the basis of interacting with other states in the international arena - governs the activities of states in relation to other

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Law 111 Public International Law Introduction

states and also their relations with international organizations & individuals International Law vs. Municipal Law International Law - governs the relation of sovereign independent states inter and constitutes a legal system the rules of which it is incumbent upon all states to observe - regulates the behavior of states - concerns with the external relations of the states and its foreign affairs - a law between equal sovereign states in which no one is supreme to the other

other private entities when they cross national borders

Municipal Law - also known as state law or national law is the law of state or a country

regulates behavior of individuals - internal relations of states and its domestic affairs
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law of the sovereign over the individuals subject to the sovereign rule
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International law and municipal law relates to each other and some justice considers that both from a unity being manifestation of single conception of law while others say that international law constitutes an independent system of law essentially different from the municipal Law. Monistic Theory - origin and sources of international and domestic laws are the same - both spheres of law simultaneously regulate the conduct of individuals and the two systems are in their essence groups of commands which bind the subjects of the law independently of their will Dualistic Theory - International law and municipal law are separate and self contained to the extent to which rules of one are not expressly tacitly received into the other system. o Municipal law product of local custom/legislation o International law treaties & customs grown among states - The two are separate bodies of legal norms emerging in part from different sources comprising different difference subjects and having application to different objects. Note: The prevailing practice accepts dualism that there are two legal systems.
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Law 111 Public International Law Introduction

International law, unless it is made part of the domestic system, has no role in the settlement of domestic conflicts. - Doctrine of Incorporation - Doctrine of Transformation Doctrine of Incorporation The Incorporation clause of the Constitution reads in Section 2, Article II: The Philippines [] adopts generally accepted principles of international law as part of the law of the land. [] It is by this provision of the Constitution that the Constitution incorporates a body of principles of international law into Philippine law. Jurisprudence in application: 1.
2.

Taada vs. Angara (272 SCRA 18)

Mejoff vs. Director of Prisons (90 Phil 70) G.R. No. L-2855 July 30, 1949 - The Court applied as national law the right to life and liberty and all other fundamental rights as applied to all human beings, proclaimed by the Universal Declaration of Human Rights 3. Marcos vs. Manglapus (177 SCRA 668) The Court says the right to return to ones country is not among the rights guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our wellconsidered view that the right to return may be considered, as a generally accepted principle of international law and, under our constitution, as part of the law of the land. US vs. Guinto (182 SCRA 644) Republic vs. Sandigan (407 SCRA 10) The Supreme Court deals with what it describes as interregnum, the period after the abrogation of the 1973 Constitution by the people power revolution and before the installation of the 1987 Constitution, during which violations of human rights were allegedly committed. During the interregnum, Republic says a person could not invoke exclusionary rights under the Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum. The Court in this case applied the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights as part of customary international law and that the Filipinos as
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Law 111 Public International Law Introduction

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human beings are proper subjects of international law laid down in the Covenant. In this case the incorporation clause was not applied but rather customary international law. A classic example where international law was made to apply directly to domestic conflicts. Agustin vs. Edu (88 SCRA 195) G.R. No. L-49112

February 2, 1979 7. Doctrine of Transformation

DMMMSU College of Law | Atty. GILBERT R. HUFANA