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Pil

Pil

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Published by Nene Maribbay

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Published by: Nene Maribbay on Jun 20, 2012
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NOTES:
Public International Law
2008 LEI Notes in
Disclaimer 
: The risk of use, non-use and misuseof this material shall be solely borne by the user.
“Nam omnia praeclara tam difficilia quam rara sunt”
For all that is excellent and eminent is as difficult as it is rare
 
Notes:
PUBLIC INTERNATIONAL LAW 2008
2
-Spinoza on
Ethics
INTRODUCTION
DefinitionPublic v Private International LawBasis of Public International Law1.Naturalist2.Positivists3.EccleticsThree Grand DivisionsRelations between International and MunicipalLaw1.From the viewpoint of doctrinea.Dualistb.Monists2.From the view of practicea.Doctrine of Transformationb.Doctrine of Incorporation ¯°º°¯
DEFINITION OF Public International Law
 It is the body of rules and principles that arerecognized as legally binding and which governthe relations of states and other entities investedwith international legal personality. Formerlyknown as
law of nations
coined by JeremyBentham in 1789.
Public International Law Distinguished FromPrivate International Law/Conflict of Laws
It is that part of the law of each State whichdetermines whether, in dealing with a factualsituation, an event or transaction between privateindividuals or entities involving a foreign element,the law of some other State will be recognized.
PublicPrivate
1.
Nature
Public isinternationalin nature. It isa law of asovereign overthosesubjected tohis sway[Openheim Lauterpacht,38.]As a rule, Privateis national ormunicipal incharacter.Except whenembodied in atreaty orconvention,becomesinternational incharacter. It is alaw, not above,but between,sovereign statesand is, therefore,a weaker law.[Openheim Lauterpacht, 38.]2.
Settlement of Dispute
Disputes areresolvedthroughinternationalmodes ofsettlement Recourse is withmunicipaltribunals throughlocaladministrativeand judiciallikenegotiationsandarbitration,reprisals andeven warprocesses.3.
Source
Derived fromsuch sourcesasinternationalcustoms,internationalconventionsand thegeneralprinciples oflaw.Consists mainlyfrom thelawmakingauthority
 
of eachstate.4.
Subject
Applies torelationsstates
inter se
and otherinternationalpersons.Regulates therelations ofindividualswhether of thesame nationalityor not.5.
Responsibility foviolation
Infractions areusuallycollective inthe sense thatit attachesdirectly to thestate and notto itsnationals.Generally, entailsonly individualresponsibility.
BASIS OF PIL – 3 SCHOOLS OF THOUGHT [
Whyare rules of international law binding?
]
 1.
Naturalist
PIL is a branch of the great law of nature– the sum of those principles which oughtto control human conduct, being foundedon the very nature of man as a rational andsocial being. [Hugo Grotius]
PIL is binding upon States2.
Positivist
Basis is to be found in theconsent and conduct of States.
Tacit
consent in the case ofcustomary international law.
Express
in conventional law.
Presumed 
in the general law ofnations. [Cornelius van Bynkershoek]3.
Groatians or Eclectics
Accepts the doctrine of natural law, butmaintained that States were accountableonly to their own conscience for theobservance of the duties imposed bynatural law, unless they had agreed to be
 
Notes:
PUBLIC INTERNATIONAL LAW 2008
3
bound to treat those duties as part ofpositive law. [Emerich von Vattel]
Middle ground
3 GRAND DIVISIONS
1.
Laws of Peace
normal relations betweenstates in the absence of war.2.
Laws of War 
– relations between hostile orbelligerent states during wartime.3.
Laws of Neutrality 
– relations between a non-participant state and a participant state duringwartime. This also refers to the relations amongnon-participating states.
RELATIONS BETWEEN INTERNATIONAL LAW ANDMUNICIPAL LAWFrom the Viewpoint of Doctrine
1. Dualists –
International Law and Municipal Law aretwo completely separate realms.
See distinctions Nos. 1,3 &4.
2. Monists –
Denies that PIL and Municipal Law areessential different.
In both laws, it is the individual personswho in the ultimate analysis are regulatedby the law. That both laws are far frombeing essentially different and must beregarded as parts of the same juristicconception. For them there is oneness orunity of all laws.
PIL is superior to municipal law—international law, being the one whichdetermines the jurisdictional limits of thepersonal and territorial competence ofStates.
From the Viewpoint of Practice
1. International Tribunals
PIL superior to Municipal Law
Art. 27, Vienna Convention in the law ofTreaties A state “may not invoke theprovisions of its internal law as justificationfor its failure to perform a treaty”
State legally bound to observe its treatyobligations, once signed and ratified2. Municipal Sphere – depends on what doctrine isfollowed:
Doctrine of Incorporation -
Rules of international law form part of the law ofthe land and no further legislative action isneeded to make such rules applicable in thedomestic sphere. [Sec. of Justice v. Lantion GRN139465, Jan. 18, 2000]This is followed in the Philippines:Art. II, Sec. 2 “The Philippines…adopts thegenerally accepted principles of international lawas part of the law of the land…” However, noprimacy is implied.
Q: What are these generally acceptedprinciples?A:
Pacta sunt servanda, sovereign equality amongstates, principle of state immunity; right of statesto self-defense
Secretary Of Justice
. Judge Lantion andJimenez [GR 139465, 18 Jan. 2000]FACTS:
A possible conflict between the US-RPExtradition Treaty and Philippine law
ISSUE:
WON, under the Doctrine of Incorporation,International Law prevails over Municipal Law
HELD:
NO.Under the doctrine of incorporation, rules ofinternational law form part of the law of the landand no further legislative action is needed tomake such rules applicable in the domesticsphere.The doctrine of incorporation is applied wheneverlocal courts are confronted with situations inwhich there appears to be a conflict between arule of international law and the provisions of thelocal state’s constitution/statute.First, efforts should first be exerted to harmonizethem, so as to give effect to both. This is becauseit is presumed that municipal law was enactedwith proper regard for the generally acceptedprinciples of international law in observance ofthe incorporation clause.However, if the conflict is irreconcilable and achoice has to be made between a rule ofinternational law and municipal law,jurisprudence dictates that the municipal courtsshould uphold municipal law.This is because such courts are organs ofmunicipal law and are accordingly bound by it inall circumstances. The fact that international lawwas made part of the law of the land does notpertain to or imply the primacy of internationallaw over national/municipal law in the municipalsphere.The doctrine of incorporation, as applied in mostcountries, decrees that rules of international laware given equal standing with, but are notsuperior to, national legislative enactments.In case of conflict, the courts should harmonizeboth laws first and if there exists an unavoidablecontradiction between them, the principle of
lex 

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