PUBLIC INTERNATIONAL LAW

Layla-Tal Osorio Medina 2010-113664

I.

Preliminary Considerations Definition of Public International Law -defined as the rules, based on the natural moral law and on common consent, which govern the relations of sovereign States and other international persons. Definition by Higgins -Public International Law is a body of legal principles, norms and other international persons and governs their conduct affecting the interests of the international community as a whole.1 International legal system consist of:

San Sebastian College Recoletos Manila College of Law

1. natural moral law principles 2. a set of generally agreed upon norms of conduct 3. certain authoritative processes for enacting aforementioned norms.

and

changing

International law- public international law Private international law-conflict of laws Why is PIL important? Quoting President John F. Kennedy: that the world makes plans for a better future, it must first make sure that there is a future. The functions of PIL are the following: 1. 2. 3. Maintenance of public peace and order Protection of State rights and fundamental human rights The economic, social, cultural and technological development of States and other entities that possess an international personality

International Law and World Politics-Edgardo L. Paras (Please note that this set of notes is very much condensed! You still have to read the book.)

Basis of PIL: 1. The Natural Law school-natural moral law

1

Public International Law reviewer, Karichi Santos, UP Law 2012

2. 3.

Positivist- common consent of states Eclectic-premised on both the natural moral law and on common consent.

3.

IL of neutrality

*Classification according to content of subject matter 1. 2. Int. Constitutional Law (essentially political in character ex. Treaty of Versailles which ended WW1) Int. Administrative Law (technical in scope, may include ordinary treaties, customs and court decisions on Int. Corpo Law, Int. Crim. Law, Int. T&D, Int. Comm. Law incl. trade agreements and foreign investment leg.)

Competent Authority-refers to equal states which observe expressly or implicitly common standards of conduct in their mutual relations.     International law is discussed by the methods appropriate to jurisprudence State officials use treaties, precedents in arguing for their foreign policies; they also refer to the opinions of specialists. IL has judicial sanctions enforced by international and municipal tribunals (note that municipal laws refer to local laws, ie. Laws of the RP) At various times in history, international legislation has been enacted.

How PIL can be observed -by a firm adherence to the principles of the natural moral law, the spirit and intent of treaty stipulations and international customs. Guaranty can be made through peaceful means (dip. nego and arbit.,), through forcible measures short of war (eg. boycott, breaking off of dip. rel. ), and collective enforcement measures (UN intervention in Korea, in the Suez Canal, Ira q-Kuwait, etc). Why PIL is observed: 1. 2. 3. Their belief in the reasonableness of the Law of Nations. Their fear in being unconventional Fear of reprisal from other states.

TRANSNATIONAL LAW -is an emerging body of law based upon universally accepted general principles of law supplemented by that portion of municipal law of disputants applicable in an attempt to resolve conflict. PHILIP JESSUP: suggested that there are major gaps in international law and needs are best bridged at levels other than universal. Jus Civile -foundation of legal systems of Europe and other parts of the world, contributing to many concepts and principles now embodied in international law. (ex. acq. of title of territory, freedom of the high seas) Jus Cogens: for a norm to be considered as such, it must be accepted and recognised by the international community of States as a whole. CLASSIFICATION OF PUBLIC INTERNATIONAL LAW 1. 2. 3. Conventional-if consent was given expressly Customary-if consent was given impliedly or tacitly General-presumably consent has been given to fundamental natural principles governing international intercourse.

*Private individuals observe PIL because they are afraid of legislative, executive and judicial sanctions within their respective nations PIL distinguished from Municipal Law PIL Sanctions a. b. Reprisal War Mun. Law a. Civil Execution b. Criminal Punishment Individual Relatively a centralized coercive order Comparatively easier

Responsibility Centralized/Decentralized(?)

Collective Relatively decentralized

Enforcement *Classification according to applicability of subject matter: 1. 2. IL of peace IL of war

Comparatively harder

Relation bet. PIL and Philippine Municipal Law PIL has been made an integral part of the Constitution (1935, 1973, and the present). Art. II, Sec 3 of the 1935 Constitution provides: The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the nation. In the 1987 Constitution, it reads thus: 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. (*Note: in the 1973 Constitution, it is also found in Article II, but it is in Section 3) War-refers to aggressive war. *The Congress, by 2/3 of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. Article VI, Sec. 23(1) The generally accepted principles of international law: 1. 2. 3. 4. 5. Acquisition of territory by prescription Doctrine of res judicata Rule that an accuser state cannot, at the same time, be the judge The principle of prior exhaustion of national remedies before resort to be had in international tribunals. The rule that all persons (whether mil. or civ.) guilty of waging aggressive wars should be held accountable.

II. A.

Sources of PIL Direct Sources 1. International Conventions 2. International Customs Indirect/Secondary Sources 1. Decisions of Int. Tribunals 2. Writings and Teachings of the most qualified publicists

B.

Hans Kelsen: Public International Law has its source principally in the decision of an international tribunal, Said decision is a valid norm of IL only if the tribunal has been properly constituted by an international treaty; the treaty itself is valid if the maxim of pacta sunt servanda is adhered to, and the reason for such maxim is because of INTERNATIONAL CUSTOM. In short, the ultimate source is international custom which gives rise to pacta sunt servanda, which in turn justifies the existence of international conventions; treaties make it possible the formation of international courts, precise purpose being is to lay down decisions upon the matter. Decisions rendered constitute the sources of IL.

OPPENHEIM: The sources of law are CUSTOMS and TREATIES. 4 Theories regarding the incorporation of IL into the municipal law of the RP: 1. 2. 3. 4. Transformation doctrine Adoption doctrine Harmonization doctrine Restricted automatic doctrine

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