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What is international law?

This a law which is international in character and it deals


with the conduct of relationships between states and the
relation of states to international bodies and relation of
states and IB to persons.
Ex. 1. Conflict between China is governed
international law. 2. APEC 10Billion Budget

by

Primary Subjects of International Law:


1. States
2. International bodies (UN, WHO, RED CROSS
has international personality)
Objects:
1. Persons (natural or juridical)

>When we say all states are equal, we do not say that


they are equally strong. Because their always weaker
and strong states. Equality of states means equality
before the law or legal equality.
>What if there is a conflict between treaty and customary
international law? What will prevail?
Ans.: If the treaty comes after the custom, treaty will
prevail. It follows the principle of statutory construction
that later laws repeal prior laws if they are in conflict.
>Jus Cogens are peremptory norms or conduct of
general international law.
>Treaty vs Jus Cogens the latter will prevail.
>Soft Law an agreement other than a treaty.

Note: International law is addressed to persons because


states are composed of persons.
Public International Law vs Private International Law
Public IL it is a law applicable to all nations.
Private IL it is not really an international law but a
municipal law. It is called international law because it is a
case which involved foreign element.
Ex.: 1. Divorce in Nevada legal. Prohibited in the
Philippines. an example of foreign element which the
court will reconcile.
2. Maria a Filipina married to a foreigner in the
Philippines. Then J go home to Nevada and filed
a divorce which was granted. And married again.
Can Maria remarry again?
YES. Because a law was enacted which permits
a pinoy spouse to remarry if a foreigner spouse
succeeded to get a divorce in his country. To
avoid injustice to Filipino spouse.
>The aim of international law is to preserve international
peace.
Is international law really a law?
>Law is rule of conduct, just and obligatory promulgated
by competent authority for common observance of all.
Is international law promulgated by competent authority?
>States are sovereign. They are all equal. Then who will
qualify to become a competent authority?
In this sense, IL is not really a law. Because there is no
International Legislative body.
>A state is only bound by international law if it gives its
consent.
>According to Paras, it is a combination of consensual
theory and natural law that will make PIL a law.
>Security Council 15 members. 5 permanent (USA,
UK, FRANCE, RUSSIA, CHINA) any resolution vetoed
by permanent member, the resolution is not valid.

Example:
1. Enhance Defense Cooperation Agreement (EDCA)
(Exisiting Treaty Philippine US Mutual Defense
Pact) (Forerunner Phil. US Bases Agreement)
International Law vs Municipal Law/Law of Forum
Two Theories Regarding Relationship of IL and ML:
1. Dualists or Pluralistic Theory that Il and ML are
independent of each other.
2. Monistic Theory according to monist IL and ML
are interrelated to each other. They belong to
only one system.
>In the Philippines we adhere to Dualists Theory where
IL and ML are different system. They may be part of
each other.
>Although the international law is distinct from municipal
law.
> Doctrine of Transformation in order for IL to become
part of ML, IL must be transformed into domestic law so
that it will become part of ML. How? By enactment of
Congress a law which would transformed IL to ML. In
order for a treaty to be part of domestic law, it must be
ratified by the senate.
> Doctrine of Incorporation IL will become
automatically part of ML. It is explicitly explained in 1987
Constitution, Article II, Section II:
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.
Three aspects:
1. Renounces aggressive war but not defensive
war.
2. Adopts the generally accepted principles of
international law as part of the law of the land. In

this sense, the IL is incorporated through our


Constitution to become a ML.
3. Adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
In case of conflict between IL and ML, which will prevail?

If the conflict between IL and ML, if the case is


lodge in international court, international law will
prevail.
If the conflict is lodge in domestic court or the
court of the forum, the DC is duty bound to apply
the ML. Thus, ML will prevail.

In case of conflict between a treaty and constitution?

Constitution will prevail. Because Article 8,


provides power to the Supreme Court to
declared a treaty unconstitutional.

There is another theory from US Jurisprudence, treaties


and statutes have equal ranks. Neither is superior to the
other. How did a US Supreme Court resolve the conflict
between a treaty and statue? The US follow the principle
of statutory construction. The latter one repeals the prior
one.