Lecure Notes_Public International Law

7/24/2019 Lecure Notes_Public International Law

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JURISTS POLITICAL LAW - LECTURE NOTES____ ____________________________

SUBJECT: PUBLIC INTERNATIONAL LAW

LECTURER: Atty. Ganchoon

Duration: 180 minutes (3 hours)

• International law does not only refer to "relation of States" but "of international organizations and

with their relations inter se, as well as with some of their relations with persons, whether natural or

uridical"

SOURCES OF IL

• International custom ! must be a "state practice", ! consistent #eneral and e$istin# for a %eriod of

time AND "opinio uris" !! belief of states that this custom %ractice is obli#atory hence followed.

− A State may not be bound to %ractice a contrary %ractice ("&once%t of 'ersistent bector")

• o stare decisis in international law. *he I&+ is not bound by %re,ious decisions

• *he I&+ may decide a case "e$ ae-uo et bono" ! based on ud#es sense of abstract ustice ! only if

%arties a#ree.

• /u#o Grotius ! father of modern international law

• In case of conflict treaties %re,ail o,er customs ! "%acta sunt ser,anda" ! a#reements must be

com%lied with in #ood faith. ut customs %re,ail o,er treaties if it attains the status of "jus cogens"

(com%ellin# law) ! $. f us co#ens2 %rohibition a#ainst #enocide

• General Assembly 4esolution ! not bindin# e,en if ado%ted unanimously. *hey only e$%ress

desires of states but does not create laws. ut althou#h not bindin# ha,e "normati,e ,alue" ! %ro,ides e,idence im%ortant for establishin# e$istence of a rule

− 5hen GA 4esolutions bindin#6 *he 4eso concerns internal wor7in#s of the or

matters %eculiarly within its com%etence (e$. ud#et and admission and e$%ulsion of

members)

• Soft Law ! #uidelines of conduct resorted by states when they do not yet want to be bounded by a

law. sually ta7es form of non-treaty agreements $. eclarations

LAW ON TREATIES

• *reaties may not only be a#reed u%on by the states but of international le#al %ersons. It may be oral.

ut if between states must be in written form ! under 9&:*

• ;A!A ! not a treaty not between states<international or#<%ersons. Malaysia is only one of the

witnesses. *he a#reement is only bet. the #o,t. and the ;I:= or + >!!! not an international le#al

%erson or a state A#reement bet. Go,t. and rebels

• Auto-limitation of Soe!eignt - States in enterin# treaties surrenders some as%ects of their

so,erei#nty. ot ,iolati,e because allowed by the &onstitution

• Ste#s in t!eat-ma$ing #!ocess: Negotiation A%o#tion & Aut'entication Ratification

Ent! into Fo!ce

− *he %ower to ne#otiate solely belon#s to the 'resident subect to concurrence of at least ?<3 of

all the members of the senate. 'ower to %erform acts in relation to the treaty may be conducted by a #o,t. official %ro,ided he has "!u po#ers" $ no need for full %owers @

;inisters<Secretaries of =orei#n Affairs and Ambassadors

− i%lomatic ne#otiations are co,ered by the "Doctrine o! E%ecuti&e Pri&ie'e"

− 4atification is %urely an e$ecuti,e act. *he "4ome statute" which created the Intl &riminal

&ourt ! the Senate cannot com%el the 'res. to transmit to the senate this statute to ratify it by the

senate. If no ratification yet there is nothin# to concur by the &on#ress

− “Making of Reservations” in a treaty @ allowed unless otherwise %ro,ided in the treaty

• (!oun%s fo! te!mination of T!eaties) (a) consent of all %arties (b) conclusion of late! t!eat (c)

material *!eac' (d) su%er,enin# im%ossibility of #e!fo!mance (e) !e*us sic stanti*us fundamental

change of circumstances (f) emer#ence of jus cogens compelling law!

−!e*us sic stanti*us + must be an unforeseeable circumstances. o uris%rudence yet a%%lyin#this. &annot a%%ly this of the subect is foreseeable.

− us cogens compelling law!li7e %rohibition from #enocide %re,ails o,er treaties

− “#everance of diplomatic relations” $ does not terminate or sus%end treaties unless the

relations is indis%ensable in a%%lyin# the treaty

− In e$aminin# a treaty see the te$t first before the intent of the %arties (tra,au$ %re%aratoires)




• Unilate!al Statements + S%ecific state statements con,eyed to the world at lar#e made with clear

intent to be bound. o unilateral statement in ;A!A B only con,eyed to the ;I:=

• E,ecutie Ag!eement + ha,e the same bindin# effect with treaties. nly difference is that it does not

need concurrence by Senate. Also treaties in,ol,es %olitical issue or chan#es of national %olicy and

arran#ements %ermanent in nature while As refers to carryin# out established national %olicies and

traditions and arran#ements more or less tem%orary in nature. 4atio of distinction2 *o determine

whether Senate must concur. 9=A is a treaty B %ro,ide by the &onstitution.

INTERNATIONAL LAW AN NATIONAL LAW

• .ow IL *ecomes NL/

a. octrine of Incor%oration B &onstitution %ro,ides

b. octrine of *ransformation B e$%ress ado%tion by le#islation. $. nce senate concurs in the

treaty there is transformation.

• In case of conflict I: %re,ails of : if brou#ht before the international tribunal. ut of brou#ht

before the domestic court a%%ly municipal rule: if conflict between the constitution and treaty

constitution %re,ails if between treaty and : : %re,ails. 4atio2 the treaty was transformed to :

SU01ECTS OF INTERNATIONAL LAW

• (a) States (b) IO( (c) In)i&i)uas (d) Transnationa Corporations (e) Insur'ents and (f)

Nationa Li*eration +o&eents

• &reation + was struc7 down because it is creatin# a state within a state. It creates associative

relationship with the nat%l govt& $ im%lies that %arties in association are states

• Incom%lete subects of I:2 (a) 9atican or /oly See B althou#h a state did not com%ly with %ermanent

%o%ulation (b) on!self #o,ernin# states $. 5estern Sahara (c) 'laced under ;andate System $.

'alau (d) 'rotectorates which ha,e control o,er their internal affairs but not of their e$ternal affairs.

$. ;orroco!=ench 'rotectorate since 1CDE

• An entity can claim to be state e,en without reco#nition as lon# as it com%lied with the criteria of

statehood 2ecla!ato! T'eo!3.

• &onse-uence if not reco#niFed2

a. o ca%acity to sue in non!reco#niFin# state (but may file claim before the international

tribunal a#ainst the non!reco#niFin# state)

b. o immunity from ci,il crim uris. of court of non!reco# state

c. o access to fundin# a#encies of non!reco# state

d. o military and financial assistance of non!reco# state

• If a state ceases to %ossess any of the criteria for statehood it does not cease to be a state in I:.

• Clean Slate Rule + A state is not bound by the treaties entered into by the former so,erei#n in

relation to its territory ($. S%ain to 'hili%%ines) $ce%t if a#reed u%on or the treaty refers to

boundaries of the territory

• Uti 4ossi%etis 2as ou #ossess3 + treaty on boundary the boundary of newly inde%endent states shall

follow the boundaries of old colonial territories which cannot be chan#ed unilaterally• 'ersons can now be indi,idually char#ed before the international tribunal ($. Genocide)

• (ransnational )orporations B if a#reed u%on that the #o,ernin# rule of their contract shall be I:.

• *nsurgents $ if they com%ly with criteria %ro,ided in 4!otocol 5 of Gene,a &on,entions (1) under

res%onsible command (?) e$ercise control o,er %art of territory to carry out military o%erations

1URISICTION

• 4!inci#le of Te!!ito!ial Soe!eignt + a state may not e$ercise urisdiction in the another stateHs

territory unless with consent by the latter &'*2

a. Su*jectie Te!!ito!ialit + crimes commenced in own state but consummated abroad

b. O*jectie Te!!ito!ialit + crimes commenced outside but consummated within own state

• 1u!is%iction oe! me!c'ant essels) *he 'hili%%ines follow the -En'is. Rue/ B crimes committed

aboard a forei#n merchant ,essel in 'hil. waters are triable #it.in t.e P.is0 unless it only affects

internal mana#ement.

E6TRAITION

• o obli#ation to e$tradite unless there is a treaty






• Immunities of t'e Em*ass an% t'e Consulate

− *hey are e$em%t from A:: ta$es in res%ect to its %remises whether owned or leased

− *he a#ents of the recei,in# State may not enter the embassy e$ce%t with the consent of the head

of the mission. *he recei,in# State is under a s%ecial duty to ta1e a appropriate steps to

protect t.e preises of the mission a#ainst any intrusion or dama#e and to %re,ent any

disturbance of its %eace or im%airment of its di#nity.

− Immune from search re-uisition attachment or e$ecution− i%lomatic or consular ba# B *he recei,in# state cannot o%en di%lomatic ba#. ut a consular ba#

may be re-uested to be o%ened. If refused the ba# shall be return

− In case of abuses the state may issue a wai,er or declare %ersona non #rata

STATE RES4ONSI0ILIT9

• ,en of the official e%cee) in their functions as lon# as is relation to official ca%acity there is state

res%onsibility. ($. $cessi,e interro#ation)

• *o ma7e rebels considered a#ents of the state there must be Jdirect controlK

• Stan%a!% of T!eatment of aliens + if the treatment is below this the state shall be res%onsible

internationally for the aliens.

5 Stan%a!%s)

<7 Inte!national 8inimum Stan%a!%s + amounts to bad faith ne#lect of duty insufficiency of

#o,ernmental action

57 National Stan%a!%s + state fails to accord to aliens same standard afforded to its own

nationals +one is oligatory& *f human rights oligation - *M#& or lawfulness of ./propriation $ +#&

• Rig't of i#lomatic 4!otection + it is the ri#ht of a state to file a claim a#ainst a state with res%ect to

the inury cause to its nationals ;ust ha,e genuine nationality link between the state and %erson

inured AND has e/hausted first all local remedies.

• A state may e$ercise di%lomatic %rotection to a stateless %erson who is a resident in its state

•A state has no duty to e$ercise di%lomatic relation to %ersons who has monetary claim (9inuya case2*he 'hils. /as no international obli#ation to es%ouse the claim of comfort women not er#a omnes

obli#ation) B obli#ation owed by the states towards the community of the states as a whole

• =Calo Clause>- forei#n national a#rees in ad,ance to submit all dis%utes to local courts and wai,es

his entitlement to di%lomatic %rotection. *he ,alidity of this clause is o%en to doubt because it is

wai,in# di%lomatic %rotection. *he ri#ht to wai,e belon#s to the state.

LAW OF T.E SEA

• *erritorial sea @ 1? ; from : &onti#uous Fone B ?L ; M @ ?00 ; &ontinental shel,es @

?00 ; but e$tendible to 3D0 ; /i#h seas @ beyond ?00 ; or 3D0 ;

• Te!!ito!ial sea @ 'hils. has so,erei#nty. ;ust res%ect right to innocent passage B %ro,ided not

%reudicial to the ri#hts (smu##lin#)• Contiguous ?one @ 'hils. has no so,erei#nty but has control for %re,ention of infrin#ement of

customs<fiscal<immi#ration<sanitary laws within its territory

• EE @ 'hils. has e%cusi&e ri#ht to e$%lore and e$%loit the li,in# and non!li,in# natural resources

(ri#ht to fish e$amine islands scientific research) B but 'hils. ;ust res%ect the (1) freedom of

na,i#ation (?) freedom of o,erfli#ht (3) ri#ht to lay submarine cables of other states

• Continental s'elf @ land below the water 'hils. has e%cusi&e ri#ht to e$%lore and e$%loit the natural

resources of the shelf. ut for e$%loitation the state must contribute a N of its re,enues to the

JInternational Sea ed Authority (ISA)K

INTERNATIONAL .U8AN RI(.TS LAW

• *he de,elo%ment of International /uman 4i#hts :aw reco#niFes that indi,iduals can be one of the

subects of international law and that they can find %rotection and remedies within the international

community a#ainst abuses by their own #o,ernment.




• *he Uni&ersa Decaration o! 2uan Ri'.ts (/4) was ado%ted by the nited ations General

Assembly on 10 ecember 1CL8. It arose directly from the horrendous e$%erience of 5orld 5ar II

and re%resents the first #lobal e$%ression of ri#hts to which all human bein#s are inherently entitled.

• *he /4 I&&'4 and I&S&4 are to#ether referred to as the Internationa Bi o! Ri'.ts.

INTERNATIONAL .U8ANITARIAN LAW

• *he rules of neutrality are found in customary law and in certain con,entions such as the 18DE

eclaration of 'aris and /a#ue &on,entions of 1C0O.

• A neutral State has the ri#ht and duty to abstain from ta7in# %art in the hostilities and from #i,in#

assistance to either belli#erent State and to %re,ent its territory and other resources from bein# used in

the conduct of hostilities by the belli#erents. n the other hand the belli#erents are bound to res%ect

the status of the neutral State a,oidin# any act that will directly or indirectly in,ol,e it in their conflict and to submit to any lawful measures the neutral State may ta7e to maintain or %rotect its

neutrality.

INTERNATIONAL ENBIRON8ENTAL LAW

• *he Stoc1.o Decaration (Jeclaration of the nited ations &onference on the /umann,ironment at Stoc7holm on 1E +une 1CO?K) is the first document in International :aw to reco#niFe

the ri#ht to a healthy en,ironment.

• Principe 34 of the Stoc7holm eclaration establishes a State s res%onsibility to ensure that acti,ities‟

within its territory or control do not cause dama#e to the en,ironment of other States or to areas

beyond national urisdiction or control.

• 5hile only a declaration and therefore does not ha,e the force of law 'rinci%le ?1 of the eclaration

is now considered %art of customary international law

INTERNATIONAL ECONO8IC LAW

•

*his field of international law co,ers both the conduct of so,erei#n States in international economicrelations and the conduct of %ri,ate %arties in,ol,ed in cross!border economic and business

transactions. It includes inter alia International *rade :aw International conomic Inte#ration :aw

and International In,estment :aw.

• *he 'hili%%ines is a foundin# member of the 5orld *rade r#aniFation (5*) which officially

came into e$istence on 1 +anuary 1CCD. *he 'hili%%ine Senate concurred in the 'resident s‟

ratification of the 5* A#reement on 1L ecember 1CCL.

• 8ost-fao!e% Nation B re-uires that any s%ecial treatment #i,en to a %roduct from one tradin#

%artner must be made a,ailable to li7e %roducts ori#inatin# from other tradin# %artners.

• National T!eatment B %rohibits discrimination between domestic and forei#n %roducts. *his means

that once forei#n %roducers ha,e %aid the %ro%er border char#es for the entry of their %roducts no

additional burdens may be im%osed on their %roducts by the State.

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Lecure Notes_Public International Law