Introduction

Law 111 Public International Law

GILBERT R. HUFANA Professor

What is International Law?

body of rules and principles of action which are binding upon civilized states in their relations to one another consists of rules and principles of general application dealing with the conduct of 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

What does International Law includes?

Preservation of peace Regulation of space expedition Division of the ocean floor Protection of human rights Management of the international financial system Regulation of the environment All interests of contemporary international and even domestic life

Historical Perspective

Evidence of treaties between Jews and Romans, Syrians and Spartans jus gentium (common to all men) became the law of the Roman Empire Modern international law was started by Hugo Grotius (considered the father of modern international law) principles were derived from Roman/Canon Law Laws of Nations The Laws of Nations was later given the name of international law by Jeremy

Cont Historical Perspective

Significant milestones:
The Peace of Westphalia (1648) established a treaty based framework for peace cooperation Congress of Vienna (1815) created a sophisticated system of multilateral political and economic cooperation Covenant of the League of Nations (1920) ended World War I The League created the International Court of Justice (ICJ) The League failed to prevent WWII hence the

Sources of International Law

Article 38 of the International Court of Justice (ICJ) statute states that:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: international conventions international custom, as evidence of a general practice accepted as law the general principles of law recognized by civilized nations judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law

Sources of International Law

1. 2. 3. 4. 5. 6. 7.

Customary international law/ customary law / customs Treaties The general principles of law recognized by civilized nations Judicial decisions Teachings of the most highly qualified writers and publicists Equity Others

Customary International Law

General and consistent practice of states followed by them from a sense of legal obligation Elements:

Material Factor: how the states behave the general and consistent practice of states Subjective Factor: why they behave the way they do states follow this practice out of a sense of legal obligation

Possible for customary law to develop only between several states or even only two states.

Customary International Law

MATERIAL FACTOR: the general and consistent practice of states Duration short or long, ancient usage ripening into a rule of international law Consistency - continuity and repetition Generality of the practice of states substantial Evidence: treaties, diplomatic correspondence, statements of national leaders, conduct of states

Customary International Law

SUBJECTIVE FACTOR: states follow this practice out of a sense of legal obligation

Known as Opinio Juris Sive Necessitatis the belief that a certain form of behavior is obligatory is what makes practice an international rule A matter of proof burden of proving it falls on the state claiming it

Customary International Law

Jus Cogens - also known as peremptory norm

a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted VCLT, Article 53: a peremptory norm of general international law which is accepted by the international community of states as a whole as a norm from which no derogation is permitted includes genocide, torture, slavery, terrorism

Treaties
A treaty is an agreement between states, between states and international organizations, or between international organizations, that is binding under international law (something binding under the laws of one state is not international) Treaties are binding and legally enforced upon the parties to it Treaties can be bilateral or multilateral

The general principles of law recognized by civilized nations

Principles of municipal law common to the legal system of the world

Judicial decisions

Art 59 of the ICJ Statute: the decisions of the Court have no binding force except between the parties and in respect of that particular case Decisions of the ICJ is highly persuasive in the international circle and contributed to the formulation of principles that have become international law

Teachings of the most highly qualified writers and publicists

Writers world renowned expert in the field of international law Publicists institutions which write on international law

Equity

An instrument whereby conventional or customary international may be supplemented or modified to achieve justice.

Intra legem (within the law) law is adapted to the facts of the case Praeter legem (beyond the law) used to fill gaps within the law Contra legem (against the law) refusal to apply the law that is unjust

Other supplementary evidence

UN Resolutions
Generally considered recommendatory If supported by all states opinion juris communis Reflection of what has become customary international law

Soft Law
non-treaty agreements International agreements not concluded as treaties therefore not covered by the Vienna Convention on the Law of Treaties (VCLT) Includes administrative rules in which guide states in relation to international organizations may eventually ripen into customary law

Public vs. Private International Law Public International Law Private International Law
- referred to as international - more commonly called as law conflict of laws - customs, treaties etc. that is the basis of interacting with other states in the international arena - domestic law which deals with cases where foreign law intrudes in the domestic sphere, whether domestic or foreign law applies

- governs the activities of - governs the activities of states in relation to other individuals, corporations, states and also their and other private entities relations with when they cross national international organizations borders & individuals

International Law vs. Municipal Law International Law Municipal Law

- governs the relation of - also known as state law or sovereign independent national law is the law of states inter and constitutes a state or a country legal system the rules of which it is incumbent upon all states to observe - regulates the behavior of - regulates behavior of states individuals - concerns with the external - internal relations of states relations of the states and its and its domestic affairs foreign affairs - a law between equal - law of the sovereign over sovereign states in which no the individuals subject to one is supreme to the other the sovereign rule

International Law vs. Municipal Law

International law and municipal law relates to each other and some justice considers that both from a unity being manifestation of single conception of law while others say that international law constitutes an independent system of law essentially different from the municipal Law.

International Law vs. Municipal Law

Monistic Theory
origin and sources of international and domestic laws are the same both spheres of law simultaneously regulate the conduct of individuals and the two systems are in their essence groups of commands which bind the subjects of the law independently of their will

International Law vs. Municipal Law

Dualistic Theory
International law and municipal law are separate and self contained to the extent to which rules of one are not expressly tacitly received into the other system.
Municipal law product of local custom/legislation International law treaties & customs grown among states

The two are separate bodies of legal norms emerging in part from different sources comprising different difference subjects and having application to different objects.

International Law vs. Municipal Law

International law, unless it is made part of the domestic system, has no role in the settlement of domestic conflicts. Prevailing doctrines:

Doctrine of Incorporation Doctrine of Transformation

Doctrine of Incorporation

The Incorporation clause of the Constitution reads in Section 2, Article II:

The Philippines [] adopts generally accepted principles of international law as part of the law of the land. []

It is by this provision of the Constitution that the Constitution incorporates a body of principles of international law into Philippine law.

Doctrine of Transformation

The doctrine of transformation is based upon the perception of two distinct systems of law operating separately, and maintains that before any rule or principle of international law can have any effect within the domestic jurisdiction, it must be expressly and specifically 'transformed' into municipal law by the use of the appropriate constitutional machinery.

Jurisprudence in application

Taada vs. Angara (272 SCRA 18) Mejoff vs. Director of Prisons (90 Phil 70) Marcos vs. Manglapus (177 SCRA 668) US vs. Guinto (182 SCRA 644) Republic vs. Sandigan (407 SCRA 10) Agustin vs. Edu (88 SCRA 195

Law111 Public International Law

END OF LECTURE: INTRODUCTION