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CHAPTER 1 THE NATURE OF INTERNATIONAL LAW What is International Law?

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A body of rules and principles of action which are binding upon civilized states in their relation to one another A law which deals with the conduct of the 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 Scope of International Law a. Regulation of space expeditions b. Division of the ocean floor c. Protection of human rights d. Management of international financial system e. Regulation of the environment f. Preservation of peace Is International Law a Law?

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Henkin: It is probably the case that almost all nations observe all principles of international law and almost all of their obligations almost all of the time Brierly: The ultimate explanation of the binding force of all law is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is reasonable being, to believe that order and not chaos is the governing principle of the world in which he lives Some Theories about International Law Theory Austin: Law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed International law is not law because it does not come from a command of a sovereign Consensual Theory International law derives its binding force from the consent of states Treaties—expression of consent Custom—voluntary adherence to common practices, is seen as expression of consent Natural Law Theory Law is derived by reason from the nature of man International law—application of natural reason to the nature of the state-person

Public International Law v. Private International Law Public International Law Referred to as International Law Governs the relationship between and among states and also their relations with international organizations and individual persons Private International Law Referred to as Conflict of Laws Domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts

CHAPTER 2 SOURCES OF INTERNATIONAL LAW Part 1 What Sources are Domestic Laws—found in statute books and in collections of court decisions Classifications of Sources 1. Formal sources—various processes by which rules come into existence a. Legislation b. Treaty making c. Judicial decision making d. Practice of states

International agreement 3. UN Resolutions c. Diplomatic correspondence c. General principles of law recognized by civilized nations 4. Statements of national leaders and political advisers d.2. Teachings of the most highly qualified publicists Restatement of Foreign Relations Law of the US 1. 38(1) of the Statute of the International Court of Justice 1. Writings of jurists Art. laws of humanity & public conscience . Treaties b. Duration—may be either short or long. Generality of the practice of states—uniformity and generality of practice need not be complete but it must be substantial Opinio Juris—belief that a certain form of behavior is obligatory Dissenting states: subsequent contrary practice o o Dissenting states are bound by custom unless they had consistently objected to it while the custom was merely in the process of formation It is also possible that after a practice has been accepted as law. Subsidiary means for determination of rules of law a. not the most important element b. inhabitants & belligerents are protected under the rule on the principles of the law of nations as they result from: usages of civilized people. International conventions—establishing rules expressly recognized by contesting states 2. contrary practice might arise Evidence of state practice and opinio juris a. State practice b. Teachings of highly qualified publicists Custom or Customary Law o o o A general and consistent practice of states followed by them from a sense of legal obligation Elements: 1. Generally recognized principles of law 5. International agreements 4. Judicial decisions 6. Customary Law 2. International custom—evidence of a general practice accepted as law 3. Judicial decisions e. Consistency—continuity and repetition c. General principles common to the major legal system Sources of International Law 1. Judicial decisions b. Treaties 3. Material factor—how state behaves Elements of Practice of sates or usus a. Treaties d. Conduct of states Instant Custom o A spontaneous activity of a great number of states supporting a specific line of action The Martens Clause Until a complete code of laws of war has been issued. Custom 2. Material sources—identify what the obligations are a.

it may be seen as evidence of customary law Adherence to treaties can be indicative also of adherence to practice as opinio juris If treaty comes later than a particular custom. used to fill the gaps within the law 3. refusal to apply the law which is seen as unjust Other Supplementary Evidence 1. Restatement of Foreign Relations Law of the US e. at the time of its conclusion. The International Commission b. The Institut de Droit International c. if the parties agree thereto Kinds of Equity: 1. it conflicts with a preemptory norm of general international law Preemptary norm of general international law – a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character General Principles of Law Recognized by Civilized Nations o o o o This has reference to principles of municipal law common to the legal systems of the world Judicial Decisions Decisions of the court have no binding force except between the parties and in respect of that particular case Decisions do not constitute stare decisis Decisions of the ICJ are not only regarded as highly persuasive in international circles but they have also contributed to the formulation of principles that have become international law Teachings of Highly Qualified Writers and “Publicists” o Publicists – institutions which write on international law a. Psychological or subjective factor—why they behave the way they do CHAPTER 2 SOURCES OF INTERNATIONAL LAW Part 2 Treaties o o o o o o o o o Determine the rights and duties of states just as individual rights are determined by contracts Binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior Treaties and Custom If the treaty is intended to be declaratory of customary law. Annual publication of the Hague Academy of International Law Equity o o o o When accepted. custom will prevail The later custom. is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice Where 2 parties have assumed an identical or a reciprocal obligation. Soft Law—Non-treaty Agreements. Praeter legem—beyond the law. UN Resolutions—generally considered merely recommendatory but if they are supported by all the states. the law is adapted to the facts of the case 2. International Law Association d. being the expression of a later will. Contra legem—against the law. treaty should prevail If a later treaty is contrary to a customary rile that has the status of jus cogens. should prevail A treaty is void if. international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties o Administrative Rules—guide the practice of states in relation to international organizations . one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar non-performance of that obligation by the other parties The Court’s recognition of equity as part of international law is in no way restricted by the special power conferred upon it to decide a case ex aequo et bono.2. Intra legem—within the law. they are an expression of opinio juris communis 2.

Regional Bilateral Treaties In the nature of contractual agreements which create shared expectations such as trade agreements of various forms. Concordat g. Commitment was very specific 2. Pacts c. Negotiation—foreign ministries. Sources of international law b. Power to negotiate 3. Signature b. Approval f. so that states will know the contents & avoid misunderstanding 4. Other means if so agreed . Ratification d. Covenants d. however. Acceptance e. ―Contract TreatieS The Making of Treaties 1. Charter of international organizations c. Create the norms which are the basis for a general rule of law Can either be Codification Treaties or ―Law Making Treaties‖. Consent to be bound: a. or both Treaties that create Collaborative Mechanism Operate through the organs of the different states 1. and guarantee investments Different Kinds of Treaties Multi lateral Treaties Open to all states of the world. Modus Vivendi 1969 Vienna Convention on the Law of Treaties o o o o o Governs treaties between states Entered into force in January 1980 Definition of Treaties An international agreement concluded between States in written form and governed by international law. Exchange of Instruments c. whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation Even oral agreement can be binding. Used to transfer territory. Accession g. Protocols f. Authentication of text—signing of the document. only written agreements that are new. regulate commercial relations. come under the provisions of the Vienna Convention Characteristics to make it binding: 1. Conventions b.CHAPTER 3 THE LAW OF TREATIES Various names of Treaties a. There was a clear intent to be bound Functions of Treaties a. Charters e. protect human rights. Universal scope 2. diplomatic conferences 2. settle disputes.

Violation of jus cogens—treaty is void if. Error—relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed 2. If no objection. If there is an objection. afford the party affected a ground for invoking the termination or suspension of the treaty Procedure for the Termination of Treaties 1. under certain conditions. it conflicts with a preemptory norm of general international law Amendment and Modification of Treaties o o o Amendment—formal revision done with the participation. whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State 7. Accession to a treaty—states which did not participate in the initial negotiation may express their consent to be bound 6. Supervening Impossibility of Performance o o Results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty 3. at least in its initial stage. Application of treaties o o o PACTA SUNT SERVANTA—every treaty in force is BINDING upon the parties and must be PERFORMED by them in GOOD FAITH A party may NOT INVOKE INTERNAL LAW as justification for its failure to perform a treaty It is binding upon each party in respect of its entire territory unless a different intention appears in the treaty or is otherwise established 9. Fraud—State has been induced to conclude a treaty 3. may. the treaty was in force in respect of the territory to which the succession of state relates . Corruption of a Representative of a State 4. 33 Authority to Terminate o o Belongs to the one who has authority to enter into the treaty In the Philippines. Interpretation of Treaties a. Violation of a provision essential to the accomplishment of the object or purpose of the treaty 2. Reservations—unilateral statement.5. Subjective approach—honors special meaning given by the parties Invalidity of Treaties 1. Objective approach—interpretation according to the ordinary meaning of the words b. when signing. ratifying. accepting. Rebus sic stantibus Resulted in a radical transformation of the extent of the obligations imposed by it. Coercion of a Representative of a State 5. at the time of its conclusion. Coercion of a State by the threat or use of force 6. Material Breach a. authority to conclude treaties is shared between the Senate and the President Succession to Treaties Clean Slate Rule: newly independent state is not bound to maintain in force or to become a party to any treaty by reason only of the fact that at the date of the succession of states. carry out the measure proposed 3. Notify other parties of ground and measure proposed 2. follow Art. made by a State. however phrased or named. by all the parties to the treaty Modification—involves only some parties Termination of Treaties Terminated or suspended according to the terms of the treaty or with the consent of the parties 1. Teleological approach—interpretation according to the telos or purpose of the treaty c. approving or acceding to a treaty. Entry into force of treaties—date agreed or once consent given (but provisional application can also apply) 8. Repudiation of the treaty not sanctioned by the present Convention b.

It must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as an act of Congress or Parliament b. even if declared unconstitutional. 5 of the Constitution explicitly recognizes the power of the Supreme Court to declare a treaty unconstitutional. Sec. however. Treaties do not become part of the law of a state unless it is consented to 2. 8. the treaty would not be valid and operative as domestic law Art. Monism Municipal Law Dualist or Pluralist Theory *when international or municipal law are in conflict. Doctrine of Transformation a. They become part of the law of the land by the state o o o Philippines adheres to the dualist theory and at the same time adopts the incorporation theory and thereby makes international law part of domestic law International law can be used by Philippine courts to settle domestic disputes Art. Sec. Municipal law subsumes and is superior to international law B.CHAPTER 4 INTERNATIONAL LAW AND MUNICIPAL LAW Dualism v. a state may not plead its own law as an excuse for failure to comply with international law Exception: Art. 2 of the Constitution: only customary law and treaties which have become part of customary law become part of Philippine law by incorporation Conflict between International Law and Domestic Law: International Rule o o o o o o Before an international tribunal. International law is superior to Domestic Law (supported by Kelsen) Municipal Law in International Law o o o o Follows the dualist tradition and blocks domestic law from entry into the international arena A state which has violated a provision of international law cannot justify itself by recourse to its domestic law A state which has entered into an international agreement must modify its law to make it conform to the agreement International Law in Domestic Law How does international law become part of domestic law for dualists? 1. 46 of Vienna Convention = in cases where the constitutional violation was manifest and concerned a rule of its internal law of fundamental importance Manifest = objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith Conflict between International Law and Domestic Law: Municipal Rule Domestic courts are bound to apply the local law Should a conflict arise between an international agreement and the Constitution. Doctrine of Incorporation a. Municipal law must prevail As to source Product of local custom or of legislation Regulates relations between individual persons under the state Law of sovereign over individuals International Law Treaties and custom grown among states As to relations they regulate Regulates relations between states As to their substance Monism or monistic theory *International and municipal laws belong to only one system of law Two theories: Law between sovereign states A. the treaty will not lose its character as an international law . 2.

should possess the following qualifications: (Montevideo Convention of 1933 on Rights and Duties of States) 1. Establishment of New State—the claim by a group within an established state to 2. people freely determine their political status and freely pursue their economic. as a person of international law. Capacity to enter into relations with other States—SOVEREIGNTY independence from outside control-Principle of Self-determination sovereignty as an element of a state is related but not identical to this principle-by virtue of this. To overthrow effective rulers and establish a new government—the assertion c. Of people within an entity to be given autonomy break away and form an new entity of the right of revolution o International law has not recognized a right of secession from a legitimately existing state Recognition of States—the act of acknowledging the capacity of an entity to exercise rights belonging to statehood Declaratory Theory Recognition is merely ―declaratory‖ of the existence of the state It’s being a state depends upon its possession of the required elements and not upon recognition Constitutive Theory Recognition ―constitute‖ a state It is what makes a state a state and confers legal personality on the entity States may decide to recognize an entity as a state even if it does not have all the elements as a state . Permanent population—PEOPLE-a community of persons sufficient in number and capable of maintain the permanent existence of the community and held together by a common bond of law 2. a community of persons more or less numerous. Defined territory—an entity may satisfy this requirement even if its boundaries have not been finally settled. social and cultural development Levels of claim to Self-determination 1. if one or more of its boundaries are disputed. To be free from external coercion b. or if some of its territory is claimed by another state o An entity does not necessarily cease to be a state even if all its territory has been occupied by a foreign power or if it has otherwise lost control of its territory temporarily 3. Government—that 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 o o It is the National Government that has legal personality and it is such that is internationally responsible for the actions of other agencies and instrumentalities of the state Temporary absence of government does not terminate the existence of a state 4. independent of external control. Does not involve Establishment of New State—simply involves claims a. and possession an organized government to which the great body of inhabitants render habitual obedience Commencement of their Existence o State. permanently occupying a definite portion of territory.CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW Part 1 STATES Subjects of International Law—entities endowed with rights and obligations in the international order and possessing the capacity to take certain kinds of action on the international plane o Those with international personality Objects of International Law—those who indirectly have rights under or are beneficiaries of international law through subjects of international law States—predominant actors.

Jurisdiction over its territory and permanent population b. Autonomous states b. the doctrine means one state. non-interference in each other’s affairs and the principle of equality Some Incomplete Subjects 1. Uti possidetis Rule— pre-existing boundary and other territorial agreements continue to be binding notwithstanding Fundamental Rights of States 1. Succession to state property—this is subject to agreement between predecessor and successor states 3. Equality—equality of legal rights irrespective of size or power of the state o Within the General Assembly. Peaceful Co-Existence—mutual respect for each other’s territorial integrity and sovereignty. When a state is absorbed by another state. Vassal states c. Independence—capacity of a state to provide for its own well-being and development free from the domination of other states o o o o Right to exercise within its portion of the globe. once recognized. referred to as a. Military and financial assistance also come within reach o o o o Absence of formal recognition bars an entity from all these benefits or.CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW STATES Part 2 Recognition of Government—act of acknowledging the capacity of an entity to exercise powers of government of a state o If a change in government in an existing state comes about through ordinary constitutional procedure = recognition by others comes as a matter of course Consequence of Recognition or Non-Recognition o A government. rights and duties of the predecessor state with respect to that territory terminate and are assumed by the successor state 2. Clean Slate Theory—when part of a state becomes a new state. international agreements of the absorbed states are terminated c. it accepts such agreements d. and rights and obligations under its contracts remain with the predecessor state but is subject to certain exceptions 4. access to them may be suspended Admission of a government to the UN does not mean recognition by all members but only to the extent of the activities of the organization Recognition of a regime is terminated when another regime is recognized Succession of States Views on Succession A. the functions of a state Restrictions upon a state’s liberty either from customary law or from treaties do not deprive a state of independence There is duty not to interfere in the internal affairs of other states Rights flowing from independence: a. Access to foreign courts and immunity from suit are gained d. at least. Right of legation 2. Dependent sates . Doors of funding agencies are opened b. Successor state assumes all obligations and enjoys all the rights of the predecessor Issues on Succession of States 1. Succession to contracts—this is subject to agreement between the states concerned o Responsibility for the public debt of the predecessor. one vote 3. Protectorates—dependent states which have control over their internal affairs but whose external affairs are controlled by another state. The new state succeeds to no rights or obligations of the predecessor state but begins with a tabula rasa B. the new state does not succeed to the international agreements to which the predecessor state was a party unless. Loans are facilitated c. the capacities. Moving Treaty Rule / Moving Boundaries Rule—when part of the territory of a state becomes territory of another state. to the exclusion of others. mutual non-aggression. Succession to treaties a. Succession to territory—when a state succeeds another state with particular territory. gains increased prestige and stability a. Semi-sovereign d. the international agreements of the predecessor state cease to have effect in respect of the territory o Relief from treaty obligation is rebus sic stantibus b. Right to self-defense c. expressly or impliedly.

this was replaced by trusteeship system 4. it has no permanent population . Mandated and Trust Territories—territories placed by the League of nations under one or other of the victorious allies of WWI After WWII.2. Taiwan—a non-state territory which de jure is part of China 5. The Holy See and Vatican City—recognized under Lateran Treaty. Federal state—a union of previously autonomous entities o o The central organ will have personality in international law but the extent of international personality of the component entities can be a problem 3. The Sovereign Order of Malta—the Italian Court of Cassation in 1935 recognized its international personality 6.