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    PiLA Chapter 1

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    © All Rights Reserved
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    5 views11 pages

    Chapter 1 (General Principles)

    Uploaded by

    Minato
    PiLA Chapter 1

    Copyright:

    © All Rights Reserved
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    Elaty Bae Sner Sl lase = Maa Conn Digna Site omar Ro INTERNATIONAL LAW Chapter 1 GENERAL PRINCIPLES [Nature and Seope ‘THE EXPANDING SCOPE. of intornatioa) Isw hax Inodified its traditional concept as "a body of rule and principles of ation which rebinding upon cvlied sates [het elaine sith one another.” Although this defn thn isl widely asepte, i now aint that there cre ochor eit besides states That are also governed in “ying agree by the ln of sation. A notable example is {he United Netions, Another ete inva hmself, who hheseven been siggeted asthe rel and only sje of International law, om he ground that al law isa regula ‘on of human conduct In ew ofthese, many writers tow ogre ith Schwaraenberger that eaten he ey eh ly 2 Imex, La ‘As thus understood the phrase “international la” ia vious a misnomer ino fara ugests that i relates to the mtereourse of natioas rather than of state, Pur thermore, its retrctve import would exclude fin ite operation those other international perons which, al ‘ough non-state, are directly asin eta rights and responses inthe international community Never tals, the mamencature han achieved prctaly univer saa acceptance since i wat fie employed in 1870 by Jer ‘my Bentham in his Intruction othe Princples of Mor fale and Legation Ie i now tweed interchanges with ‘other fair term, the law of nations” Divisions of International Law ‘The grand divans of international Iw are the laws of poe, th lave war, andthe nw of neutrality. ‘The laws of pea gover dhe normal relations of states. Whos War breaks out between or among some of ‘hem, the relations of thas sates cease to be regulated ‘andr the nw of pace and come under the laws of war forthe duration of the hostilities, Those tates nt involved 1m the war cntine to be regulated under the laws of ace in their relations ides, However, hat eelations ‘ith the belligerent, or those involved in the war, are ioverned by hele of neta When the war ends and peace is restored, tho rela. tions ofl the members ofthe family of atone wil cme again under the awe of peae, unl enoter war breaks Distinctions with Municipal Law Most present-day log analysis regards private in ternational law, socalled or conic of ave, ae pertaining (Ova, Prost a to the municipal or private lw ofeach state rather than ‘ssa part of interadenal av. While thas been rogpested in enw oft-led coe” that international Law covers both publ and privat inteational la, the consonsus is that ly thoue precepts applies to eltons of ntrnational ‘ervns infra fll within the Bld of international ae "The fonts donot share this opinion brent they tative in the eneness or unity ofall law. "To them, “tbe ‘ain reason for the exe identity of the to spheres of Taw is that some ofthe fundamental notion f Itarae tional Law cannot be comprehended withowt the asesmp- tion of wuperor legal oder fem which the various sys tems of Municipal Law ar, in a cons, derived by way ef ‘Slgation In oth spheres, they contend, law i ea tially s command binding upon the subjects independently of thir wil, and it is lntely the conduct of individuals Which itroglats-| ‘a the dalsts)however, who baie in the dichot- omy ofthe law, Gere are cariain wellestablised difer- {note Between international lw and mip law Tn the Birt place, nip niin ued by a poi cal superior for bmaevany by the under it authority ‘where ternational laws nt imposed upon but simply ‘Mopte by ster ar cummon rl ef scan among therm felves. AS Oppenheim pints out, “Whereas Municipal Taw isa labo a eoverign over thse ejecta to his ‘ey, the Law of Naton ra law, not above, but between, vers states athe, a weaker law ‘Secondly, nial la} consists mainly of enact iments fom the lawinaking authongy-of each stale whereas international lai derived not from any par ticle legalation but from such snare a international ‘sets nernational conventions and the general prin es fase ‘A third dstinton may be noted, viz, that uniipal lay>regulates the relsons of individuals among ther: ‘sive or with their own states wheres international aw pple tothe relations inter eof eats and ober ters, ‘onl persons ‘Acordngly, and thie maker the fourth dirence, visatone of municipal aw are redresed trough local ‘iinstrative and oda proceses whereas questions of International law sre revolved through state-rstate transactions ranging from pease methods ke negotia dons and arbitration tothe hose erbitrament of force [ke reprisals and even var. Finally, breaches of municipal law gonerally entail only indvidal responiiity whereas reepansbity for {nffagions of inematinal lw ls usually calcein the ena tht it attach drely to the sate and not to its atonal However, itis posible for a principle of municipal law to become pst of intrtional nw, as when Uh pri ‘ipl embodied ina toaty or convention, like the Have (Convention of 189 and 1807 relating to pervonal status ‘andthe Geneva Convention of 1890 on bills of exchange ‘As, a oberved by ane writer, “Ue practice of sates of ‘Giving greater o lus validity to the lgisation of other Slates under partelar cicumstances sontaine the ele ‘mente of nteratona law.” "Poon 245.24 Gow, Pancras 6 ‘elation to Miunieipal Law Ie is @ universally ccopted postulate that, with oF without an expres declaration to thi fla, tan ada {od tothe family of nations are bound by the rue pro scribed by ifr the regulation of international fterecure ‘This is an inevitable consequence of snebership in the International community. Conformably, wan beld in Ware «Hylton that “when the Unived States declared Lei independence, they were bound to recive the law of nations ints moder sate of purty snd refinement” This Same cas declared that "te lw of nations i part ofthe law of Great Brain” In the Paqute Habona’ Jutce Gray asserted estgoricaly: “International ln ita Bare ara and must be ascertained and administeed by the. ‘sours of justie_ of appropriate jurisition os often as ‘Moro explicit is the statement that “the law of na- tion, although not specillyadoptod by the Conetutin ‘or any munis ace eseniallya part ofthe law a he land. obligation commences and rene with the xi toe of nation” ‘Some sats have seen tw emphasise their amena- Dit to this actrne of inewporation, a iin called, by Mfirming thir region of the principles of interne ‘onal law in their conettutions. Among these ere Acari, ‘Germany, Korea and the Plippines. Ths, n Artie Section 2 of oor Contin, i provided that — sig ry vi nh mat the no traneraion, whic bls that hw mr of nati ey esate tt mt fie be died lelaton bythe lnnaing dy ans rmsd ino gl tow. Only when no eared wl they be. ning upn the sae apart a a mip i » Kuroda Jlandons "Th Supreme Cru d- ‘slows ar ay elo gy med pin 9 ries ca at on ‘cnbodyng them, for our Conan has hoes delibe =i natin ss ur erst may ave bo he abow provision has expestly placed interns: law in the same angry es te thar components of ie law, such a the Civ Cla, the Insurance Act e Lael Goverament Code. Normally, such a soe oe, Pancras 7 tion would not create international complications ines mich a ts not often that incosistens are between ‘the principle of taterationa law and the mie law ofthe lor state. But ths pont cannot be completly Fuled out in view especialy of che lack of are that may ‘tend the enactment of statutes by national legiltares nd he delbertaly hose policies that may inspire them, partially in vltrnatonaitie counties, Hence, portant to conaber Ue erie tobe applied in resving ‘cts between international law and tunicipl lew os developed by the pace ef stats ‘The basi rule would be to alempt to reconcile the apparent contradiction and therchy gve lft, if ane, {o both systems of law. Por ths rpc, t shuld be pre ‘timed cht eouricpl in ia ahray ected by ench eats ‘Tih due regard fr ad vever in defence ofthe generally ‘cepted principles of international Inv The eae of Co ‘Kim Chan Vales Ton Koh ie lstatve of this pine: plo. Here it was eamtended that General MacAurs {he Philippines because the edict dclred mall and void “lL nes, repulatons and proces of any olher govern ‘pent than that ofthe Commonwealth In ejecting this ‘ew our Supreme Court explnined penn i ipereten iy al edoant °C ie met Sry he ean mr ve However, the slution cannot always be as ciple at for where the confit i actual and ot merely appar. fer sno queion tha a eatagocel choice wil have made, Take, fr example, an azendinent to the cos ion of stato abolishing the eight of property in al thin its jursdion. Decrees of confiscation prs this provision could aguably be vali ner tw aw ut they woul a the mise Ge Fb seriou ational complications and provoke ejections rom sles adver affected. Undo tees sircumtance, pst af aw sould preva? om te intrnatonal vowpalat, the problem would resent much diflelty singe intentional tonal the view that "to sustain or upeld the supernacy of ipl law ove international lw could lea wo ners 3a anarchy and lawlesanes, each sate dian epoating such parts of iicrational law a are stent with and inimical to its national intrerts, ons and policies" Accordingly, sch ebunals have aly supported international aw as against opposed le of municipal law hus, it was held in a dispute between Greet Bian enezla, that “ere could be no gestion that na Ins mast yl the Iw of mations if there was 8 1°" In another at, was argued tha a lepsaive “ot Guatemala abrogtng the conreion fan ca national in thst country was the constitute) sovereign state that eld not be questioned by an tonal tribunal. Wile decaring tht the contention bs dent rt noma 16 Rca | (Goa Procoiss ° might be enable tram the national viewpoint, the arbitra tar nevertheless held that tsa sted principle inter ‘national aw that sovereign cannot be permite to set ‘up his own municipal aw ara bar to a claim y foreign sovereign for a wrong done othe ati eb Tn fine, as Renwick Summaries iterations aw 1s binding upon Ui stat a8 corporate perc, and no provision ofthe national constitution or at of he atonal legislature or dere ofthe exactive o Juda! agenios «an change the force fit provisions in far a Us lagal ‘lations ofthe stat toward ether ste are concerned" By contrast, the attiude of national tribune has ‘oon rather indecisive; o say the leat Inthe case of The ‘Neeiae,” fr instance, the Supreme Court of the United ‘States held that" was bound by the law of mations, whieh — ts pre of the law ofthe land but subsequently in The (ter the To,” the same court was to asert national ride With the prinancement tht internation li lw only in o far as we adopt it and, ke al mmon or ‘tsa, beads tothe wil of Congres” "Nor is this jude inconsistency limited to one form, fort also mark the ply fcourt from diet even i closely relate jurisleons. To Datrts, it wae eld by {Lord Mansfeld in Triguet. Bath that “the lw ef na tons, in it fall eden” was par othe law of England. Obviously unimpressed by the ring, Stith court declared in upholding a munya law “inthis eoare we Ihave nothing to do with question of wether tho leg Seek ao SETS Se an » Tormmures. Law ture has or has ot done what foreign powers may con sider a usurpation in a question with ther, Neither are we ‘tribunal siting to decide whether a act ofthe legal ture sur ire asin contravention of generally ase ‘Prinples of ntrnational law" And s Uwe colt then fd the solution isnot yt in ight ‘Constitution v. Treaty ‘Similar abservatons may be made in connection with ass involving conflicts Between the onstituion of sate sand a treaty duly entered into ty it with other sates, Gon xaly the testy is reacted in the nal fru but i op hl by intertional tribunal as demandable ig ofthe signatories under the matin paca sunt someon (nthe oe hand, iti provided in the Dedaration af the Rights and Duties of State, dopa bythe International aw Commission on June 9,194, that “every Sate har he duty io cacy out In good uth ts abigationsarsing fom trees or other sources of international ln and ‘may not invoke provsinsin te cnstation ori awe ag fn excuse for future to perform this duty” On the stor hand, most constitutions contain provisions empowering th judiciary to annul treaties and the lista to irrede them with status, herby stacking the po ey of he lal law overt intemational agree ‘Tho positon af the Philipines regarding this maar ia clear enough. There canbe no dou ao Uh tncaning eur Constitution when i stuhoises the Supreme Cas fo decider among ethers, all eres invsving the conti nality of any treaty, erations er excetive apres smantslew. oe. Peres nu In the case of felony. Hernando,” the Retail Trade Nationalization Law was challenged on the ground iter ‘alia that i violated the Treaty of Amity between the Pi {ppines and China, th United Nations Charter and the Univeral Declaration of Human Rights. The Supreme Court, afer rejecting this assertion, made he falling Slgnifcant remarks: ‘Sevipsebegoent nel sae oe ral ually natevorthy is the case of Gonaler_» Hechtaea vores how tha te Bo Pilipinas had by exethe tremen ntaced the imporaton of ee fn bur ane Via tba fine meurng fom the National Eononie Coun the ‘erifenton regired bylaw that hare wan setage of the sid eral in the Plipins Une: Need Sanding that in nteratonel lw treaties and-eceatvo fpeement are eqalybadg emt the {tutng states ou Supreme Court held npr ‘Rens ers tate wh ap net te ‘eat may be iad by here a a Sty ar wl “SE Eek 2 Irom. Law Basis of International Law ‘As prove obsorved, ntemation law docs ot emanate fom supreme itemeling aur the ‘gui of toes ote etl bution te ‘ag, solunanly nerve yan inns oman wich des not resin ty pela spr ang RererIn view of hn, es prinnt te inguin tei andi determine hy it regia and obeyed ot 2 rue of acon bythe fay of ratens. What ther word that ges ining fret nternatamal la ‘According to ne soa f though the emt onent ef which waeSamaa Blend ihe buns of ee. ational aw ee of rate Th ede my higher iv” a leo ha onda nape ot Be eaten an nen of opal ge els ‘nding aay and everpeher in iew o's je rextoabloness=/Gnde thi her, there gata {nd universal pp of ht and ero, ndoedest St ‘Sy mutual interoure or exnjck hich Seppe 4 scored and recoil By exc indidal tg {he seo his reason and is cman, The eanssaae te that, since indus compere the state, niane ee but theres f the alte wil ot inbitan te state tf alo teams Bound ty the law fst ternational lw as thus wewod i therfore nots Te Breen But sve states an ‘Ope thi hry that advocated by he Pas ts led by ard Zot, vo ata tha ted. ing fre of intrmatioal edie fut De gee ment of sovereign state tobe Bound yi lets esa ‘bordinaion bat of enrdnation: Une ts schl ot oem Penns B ‘hough, a more “partie” ientfestion with or acknowl ‘dgment of the lit neseary to make binding on te Stats purpore to govern ao that. any sate withbling ‘ts consent can dela any responsiblity of observance. ‘Such conse, i ie sete, ie Express in the ca of conventional jaw, fale inthe aoe of estoy Ti, ‘and resumen tho case af the genera rinsips of lam * “The compromise position is taken by Uhe Enlaces or he Grane, the moet famous of whom were Emerch Se Vattl and Christin Wolf, who offer bath the aw of na: {re and the consnt of te the bas of aration lave Tha theory adheres more. cosy to the Meas of (Grou “thefathor of international law ho he ff that ‘he rtm of narnia aw i ase on the diate oP righe reason” aswell as "the pace of sae” Bry, t {asserted ha in 0 fra conformed othe dictates of Fight reason, the euntar a might be side Bend with ‘hatral la ar-b ned the expression af it Should ‘hep be confi betwen tha two, the fa of aur) wae 'o preva ax being Ue fundamental aw, the aunty of ‘whi eld ot be cantravened bythe practi of tates" "The influence of thse school of thought is decribed by Bishop as follows: {nteratoa es prac. Toe vs niger an omar sot oy, Pai tema esretely “ ‘remus, Li Assuring that international law i binding upon the onal community, what is that compel ob ‘nce to it precepts? Fo, indod, the fact tht a law Binding does noe neceoarly mean it will be observe, ‘xpeily inthe abeonae of ome coercive inca toe, {ate obetince. It shouldbe remembered that, ule ‘iia lew, which ganerally preeribed spec mete {5 etcennt, trail la et povided th it wer, to ensure a more respec regard fo ita prinipls™ Despite the serious handicaps ofthe lew of nations in its presen stage, there are a muber of facors that more or las induce ahsarvance of ite more generally sapod Prooepa. These sanctons, at they aro calle, have boot eseribed as “the compulave fre of rps advantage snd fear of ralaton ™ Asoding tothe Nerh Atlante isheries Arbitration,” thay may cont of appeal to pb ic opinion, publication af errespndenes, eure by Par Namentary vote, demand fr arbitration withthe odes suena refs pte of lation Easily one ofthe most effi if the least abrasive of these sanctions isthe belie shared by many saing in the inherent reasonableness of isterational law and in ‘ir commen conviction that observance wll edyand to the wells of the whale ncey of nations. Tiss a "ent Hague Court Rpts 8, 1 | Gown. Peserss 18 reflection of the aged desire of men and peuple fr in femational order in eu af anarchy and lawlessness which, during many period of istry, ave character the sations fates But rgardese of the intrinsic mnie of the rules of international Taw, Uney may sill be observed by states Irceuse of th normal habits of ebadence ingrained inthe nature of man as a seal being. These abit persuade ‘val, and ultimately stats, o fllow,almest auto. matically at times certain ome of conduc inponed fr their observane, [No less effctive isthe respet for world opinion held by mst stats, or thelr dais to BRIBE an agreeable p> lie image inorder t maintain the goal and fvorse ‘ogard ofthe rest of tho family of nations. This sanction i= ‘the motivation for ce propaganda campaigns now being waged by the leading powers in their effort tn win the ‘mpathy and suppor: af the other countries forthe Te spective ideas, ‘A fourth sanction i the constant and reasonable far, ‘resent even in the most poweeal af tae, Cha lion ‘oF sternatonal law might vst upon the culprit the talation of other mater ‘The force ofthis infuse was Aramaticalyllstrated in 1962 when the Soviet Union ‘made a diplomatic and physial retreat in the face of determined quarantine extabibed by the United States Sguinse shipments of mianles end other munions to abe ‘Finally, but nt the least significant, ther isthe chinery ofthe United Nations which, within He spbare of ‘i limited powers, has on many ecasans prove to be an fective deterrent to international putes caus by “isrepard ofthe law of nations. The moral infuece of his ‘organization, coupled With is power to emplay physical 6 wou Law force whenever warranted, has abrted or resolved not a few international disagreements that otherwise might have sssumed more serous proportions Enforcement of International Lew we flow the Austnian concept that a rule of e- tion canbe considered law only if ii preserbed by 8 po lial sugerior with power to punish woltors, then inter ‘atonal law cannot be regard as tr lw However, ‘onsidering the more sesoptable view that there are many norms of conduct that ascety tay voluntary dope aed bey although no specie penalty i imped for mon ‘hservance international law tay be said to pone the ‘uals of tre lw "This bng ois important to ascertain the various ‘metods by which iterations law may be enfired in Ue family of nations. But Bret ditinaton shouldbe made ‘toon dyervane and eforement. Te former isan. Wally subjective and mainly dependent ea th wlion af the entity which supped to be gyiemod by the Ine ‘Enforeement, onthe other hand, i the proces by which such observance may be eopeled, usualy by foes oat Teas the threat foe. ‘States afe able to enforoe international law among ‘och othe through international onganieations er roi soups such asthe United Nations andthe Organisation of American State. Crievances ofthe dingreing states ‘may be presented to and dsc in tae bods, which ‘may thereafter adopt such measaree a8 may be neceeary %» compel compliance with international ebligatons er ‘india the wrong committed. At presen, this function it ‘usually exercised by the United Notions through the Sew ‘ty Coun and the International Court of Justice. Ine. pendently of thes, special arbitral tribunals may be ere. faves ve (Gone. Pancras ” sted by sgrcment of be pares ace forthe ste smentaf heir dpate Inna of sch reed, or etn berth are aed of the qurlng alent ate eae aa erence betwen thomsen, te esse cae mats rich or dip tks ee aoa re ike rerio ad pl: Was es {lf nay be wagl ars lt et In arate oe the end oe ote an wel the awe of netaiy, re ened mainly trea ed tc bythe baligtrets ad the neal sea Veena, ‘the ley alin be punished shrine nar Sch measure a the rnin of war minal de ‘Shecton ofeparaoe "The Unie Nato dennsrted capac ta cons tain sgression Uh Gulf Wr of 190, when ag es feo widen fet Kenai rer de ‘bed mltary acon ten by the ‘werd puncte ‘And more recy, ngain by mandate of he Ged Ne Sina, itary sf am the Unted Sts‘ oer coures rove fl and medicine the uring pk blo of Sonali, fom whom eer et fy case {rguzatons ba Pon hacked by the wares oot ‘Stn rw Tntemaly, he rues of inlernations lw may be rated se inal nes spat ofthe mean iaw. Th logue ny ipleent och ‘ase hy oo ‘ering he-nore Unie cherane so peer ‘pes pnaee a th vito ag when a Ss {be peal Hale fr peo anak Spiomale rprneta Te certreserces i enforcing such nw. dag fo Wf, ean playa important reo in hs spe by spying te rales tema law ex prop ge rer eases Bs 8 momen Law ‘ppropriste stattory enactments intended to implement Shem. ‘Funetions of International Law voy, TH Pay function of international aw i ta estab lah peao and order inthe community af nations snd to prevent the employment of fore, incuding war, ial ‘niamational relations. Buta secs nt an uncay Ghee but Iesting scar based on & genuine spt of interna, tional harmony, it strives as well promete world fend. ship by leveling the barriers, sf color or cree that have ‘oar obstructed te fostering ofa ener undoanding Ie ‘the family of nations. For its third purpose, internation law endeavors to encourage and ensure greater inerna ional cpperaton in the eauton of ertain common prob. Jems of political, economic, ealtural or humanitarian

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