You are on page 1of 5

Basis of Public International Law

local custom or of legislation whereas the


sources of international law are treaties

Three theories on this matter:

and custom grown among states. They differ as


regards the relations they regulate.

1. The Naturalist under this theory, there is a


natural and universal

Municipal law regulates relations between


individual persons under the state

principle of right and wrong, independent of


any mutual intercource or

whereas international law regulates relations


between states, They also differ

compact, which is supposed to be discovered


and recognized by every

regarding their substance. Municipal law is a


law of the sovereign over individuals

individual through the use of his reason and his


conscience.

whereas international law is a law between


sovereign states.

2. The Positivist under this theory, the binding


force of international law is

For the dualists, when international law and


municipal law conflict,

derived from the agreement of sovereign


states to be bound by it. It is not

municipal law must prevail. The dualists are


positivists with a strong emphasis on

a law of subordination but of coordination.

state sovereignty.

3. The Eclectics or Groatians this theory offers


both the law of nature and
the consent of states as the basis of
international law. It contends that the
system of international law is based on the
dictate of right reason as well
as the practice of states.
1. Laws of Peace normal relations between
states in the absence of war.
2. Laws of War relations between hostile or
belligerent states during

Monistic Theory or Monism. Under this


theory, international law and domestic law
belong to only one system of law.
However, there are two monist theories. One
theory holds that municipal law
subsumes and is superior to international law,
and a second theory, supported by
Kelsen, holds that international law is superior
to domestic law. The superiority of

wartime.

international law is seen as flowing from a deep


suspicion of local sovereigns and

3. Laws of Neutrality relations between a nonparticipant state and a

from the conviction that international law can


imbue the domestic order with a

participant state during wartime. This also


refers to the relations among

sense of moral purpose.

non-participating states.
SECRETARY OF JUSTICE v. LANTION
DUALIST V. MONIST THEORY
dualist or

October 26, 2012 1 Comment

pluralist theory holds that international law and


municipal law are essentially

FACTS:

different from each other. They differ as to


source. Municipal law is a product of

Secretary Of Justice Franklin Drilon,


representing the Government of the Republic of

the Philippines, signed in Manila the


extradition Treaty Between the Government of
the Philippines and the Government of the
U.S.A. The Philippine Senate ratified the said
Treaty.
On June 18, 1999, the Department of Justice
received from the Department of Foreign
Affairs U.S Note Verbale No. 0522 containing a
request for the extradition of private
respondent Mark Jiminez to the United States.
On the same day petitioner designate and
authorizing a panel of attorneys to take charge
of and to handle the case. Pending evaluation
of the aforestated extradition documents, Mark
Jiminez through counsel, wrote a letter to
Justice Secretary requesting copies of the
official extradition request from the U.S
Government and that he be given ample time
to comment on the request after he shall have
received copies of the requested papers but
the petitioner denied the request for the
consistency of Article 7 of the RP-US
Extradition Treaty stated in Article 7 that the
Philippine Government must present the
interests of the United States in any
proceedings arising out of a request for
extradition.

ISSUE: Whether or not to uphold a citizens


basic due process rights or the governments
ironclad duties under a treaty.

the provision of the constitution or statute of


the local state.

Petitioner (Secretary of Justice) is ordered to


furnish Mark Jimenez copies of the extradition
request and its supporting papers, and to grant
him (Mark Jimenez) a reasonable period within
which to file his comment with supporting
evidence.

Under the Doctrine of Incorporation, rules of


international law form part of the law of the
land and no further legislative action is needed
to make such rules applicable in the domestic
sphere.

The doctrine of incorporation is applied


whenever municipal tribunals are confronted
with situations in which there appears to be a
conflict between a rule of international law and
the provisions of the constitution or statute of
the local state.

Efforts should first be exerted to harmonize


them, so as to give effect to both since it is to
be presumed that municipal law was enacted
with proper regard for the generally accepted
principles of international law in observance of
the incorporation clause in the above cited
constitutional provision.

RULING: Petition dismissed.


The human rights of person, whether citizen or
alien , and the rights of the accused
guaranteed in our Constitution should take
precedence over treaty rights claimed by a
contracting state. The duties of the
government to the individual deserve
preferential consideration when they collide
with its treaty obligations to the government of
another state. This is so although we recognize
treaties as a source of binding obligations
under generally accepted principles of
international law incorporated in our
Constitution as part of the law of the land.
The doctrine of incorporation is applied
whenever municipal tribunals are confronted
with situation in which there appears to be a
conflict between a rule of international law and

In a situation, however, where the conflict is


irreconcilable and a choice has to be made
between a rule of international law and a
municipal law, jurisprudence dictates that
municipal law should be upheld by the
municipal courts, for the reason that such
courts are organs of municipal law and are
accordingly bound by it in all circumstances.

The fact that international law has been made


part of the law of the land does not pertain to
or imply the primacy of international law over
national or municipal law in the municipal
sphere. The doctrine of incorporation, as
applied in most countries, decrees that rules of
international law are given equal standing with,
but are not superior to, national legislative

enactments. Accordingly, the principle lex


posterior derogate priori takes effect a treaty
may repeal a statute and a statute may repeal
a treaty. In states where the Constitution is the
highest law of the land, such as the Republic of
the Philippines, both statutes and treaties may
be invalidated if they are in conflict with the
constitution
Responsibility of States for Internationally
Wrongful Acts
Article l
Responsibility of a State for its internationally
wrongful acts
Every internationally wrongful act of a State
entails the international responsibility of that
State.
Article 2
Elements of an internationally wrongful act of a
State
There is an internationally wrongful act of a
State when conduct consisting of an action or
omission:
(a) is attributable to the State under
international law; and
(b) constitutes a breach of an international
obligation of the State.

of the State. Article 5


Conduct of persons or entities exercising
elements
of governmental authority
The conduct of a person or entity which is not
an organ of the State under article 4 but which
is
empowered by the law of that State to exercise
elements of the governmental authority shall
be
considered an act of the State under
international law, provided the person or entity
is acting in that
capacity in the particular instance.
Article 6
Conduct of organs placed at the disposal of a
State
by another State
The conduct of an organ placed at the disposal
of a State by another State shall be considered
an
act of the former State under international law
if the organ is acting in the exercise of
elements of the

CHAPTER II

governmental authority of the State at whose


disposal it is placed.

ATTRIBUTION OF CONDUCT TO A STATE

Article 7

Article 4

Excess of authority or contravention of


instructions

Conduct of organs of a State


1. The conduct of any State organ shall be
considered an act of that State under
international law,
whether the organ exercises legislative,
executive, judicial or any other functions,
whatever position it
holds in the organization of the State, and
whatever its character as an organ of the
central Government
or of a territorial unit of the State.
2. An organ includes any person or entity which
has that status in accordance with the internal
law

The conduct of an organ of a State or of a


person or entity empowered to exercise
elements of the
governmental authority shall be considered an
act of the State under international law if the
organ,
person or entity acts in that capacity, even if it
exceeds its authority or contravenes
instructions.
Article 8
Conduct directed or controlled by a State
The conduct of a person or group of persons
shall be considered an act of a State under

international law if the person or group of


persons is in fact acting on the instructions of,
or under the

and adopts the conduct in question as its own.

direction or control of, that State in carrying


out the conduct.

Reparation.

Article 9
Conduct carried out in the absence or default
of the official authorities
The conduct of a person or group of persons
shall be considered an act of a State under
international law if the person or group of
persons is in fact exercising elements of the
governmental
authority in the absence or default of the
official authorities and in circumstances such
as to call for the exercise of those elements of
authority.
Article 10
Conduct of an insurrectional or other
movement
1. The conduct of an insurrectional movement
which becomes the new Government of a State
shall be considered an act of that State under
international law. 2. The conduct of a
movement, insurrectional or other, which
succeeds in establishing a new State
in part of the territory of a pre-existing State or
in a territory under its administration shall be
considered
an act of the new State under international law.
3. This article is without prejudice to the
attribution to a State of any conduct, however
related to
that of the movement concerned, which is to
be considered an act of that State by virtue of
articles 4 to 9.
Article 11
Conduct acknowledged and adopted by a State
as its own
Conduct which is not attributable to a State
under the preceding articles shall nevertheless
be considered an act of that State under
international law if and to the extent that the
State acknowledges

Article 31. Reparation


1. The responsible State is under an obligation
to make full
reparation for the injury caused by the
internationally wrongful act.
2. Injury consists of any damage, whether
material or
moral, arising in consequence of the
internationally wrongful act of a
State.
Article 32. Irrelevance of internal law
The responsible State may not rely on the
provisions of its
internal law as justification for failure to comply
with its obligations

unga resolution 3314 on the definition of


aggression
Article 1
Aggression is the use of armed force by a State
against the sovereignty, territorial integrity or
political independence of another State, or in
any other manner inconsistent with the Charter
of the United Nations, as set out in this
Definition.
Explanatory note: In this Definition the term
"State":
(a) Is used without prejudice to questions of
recognition or to whether a State is a member
of the United Nations;
(b) Includes the concept of a "group of States"
where appropriate.
Article 3
Any of the following acts, regardless of a
declaration of war, shall, subject to and in
accordance with the provisions of article 2,
qualify as an act of aggression:
(a) The invasion or attack by the armed forces
of a State of the territory of another State, or

any military occupation, however temporary,


resulting from such invasion or attack, or any
annexation by the use of force of the territory
of another State or part thereof,
(b) Bombardment by the armed forces of a
State against the territory of another State or
the use of any weapons by a State against the
territory of another State;
(c) The blockade of the ports or coasts of a
State by the armed forces of another State;
(d) An attack by the armed forces of a State on
the land, sea or air forces, or marine and air
fleets of another State;
(e) The use of armed forces of one State which
are within the territory of another State with
the agreement of the receiving State, in
contravention of the conditions provided for in
the agreement or any extension of their
presence in such territory beyond the
termination of the agreement;

(f) The action of a State in allowing its temtory,


which it has placed at the disposal of another
State, to be used by that other State for
perpetrating an act of aggression against a
third State;
(g) The sending by or on behalf of a State of
armed bands, groups, irregulars or
mercenaries, which carry out acts of armed
force against another State of such gravity as
to amount to the acts listed above, or its
substantial involvement therein.
Consequences of Recognition of Belligerency
Upon recognition by the parents state, the
belligerent community is considered aseparate
state for purposes of the conflict it is waging
against the legitimategovernment. Their
relations with each other will, thenceforth and
for the durationof the hostilities, be governed
by the laws of war, and their relations with
otherstates will be subject to the laws of
neutrality.