PIL Chapters 1-4

8/3/2019 PIL Chapters 1-4

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Roan Salanga Public International Law P a g e | 1

CHAPTER 1 THE NATURE OF INTERNATIONAL LAW

What is International Law?

A body of rules and principles of action which are binding upon civilizedstates in their relation to one another

A law which deals with the conduct of the states and of internationalorganizations and with their relations inter se, as well as with some of theirrelations with persons, whether natural or juridical

Scope of International Lawa. Regulation of space expeditionsb. Division of the ocean floorc. Protection of human rightsd. Management of international financial systeme. Regulation of the environmentf. Preservation of peace

Is International Law a Law?

Henkin: It is probably the case that almost all nations observe all principlesof international law and almost all of their obligations almost all of the time

Brierly: The ultimate explanation of the binding force of all law is that man,whether he is a single individual or whether he is associated with other menin a state, is constrained, in so far as he is reasonable being, to believe thatorder and not chaos is the governing principle of the world in which he lives

Some Theories about International Law

Command Theory Austin: Law consists of commands originating from asovereign and backed up by threats of sanction ifdisobeyed

International law is not law because it does not comefrom a command of a sovereign

Consensual Theory International law derives its binding force from theconsent of states

Treatiesexpression of consent

Customvoluntary adherence to common practices, isseen as expression of consent

Natural Law Theory Law is derived by reason from the nature of man

International lawapplication of natural reason to thenature of the state-person

Customary lawwhat are regarded as generally

accepted principles of law are in fact an expression ofwhat traditionally was call natural law

Some Dissenters International lawa combination of politics, moralityand self-interest hidden under the smokescreen of legallanguage

Pragmatic Theory International law is law because it is seen as such bystates and other subjects of international law

Public International Law v. Private International Law

Public International Law Private International Law

Referred to as International Law Referred to as Conflict of Laws

Governs the relationship between andamong states and also their relationswith international organizations andindividual persons

Domestic law which deals with caseswhere foreign law intrudes in thedomestic sphere where there arequestions of the applicability of foreignlaw or the role of foreign courts

CHAPTER 2 SOURCES OF INTERNATIONAL LAW

What Sources are

Domestic Lawsfound in statute books and in collections of court decisions

Classifications of Sources1. Formal sourcesvarious processes by which rules come into existence

a. Legislationb. Treaty makingc. Judicial decision makingd. Practice of states

2. Material sourcesidentify what the obligations area. State practice d. Judicial decisionsb. UN Resolutions e. Writings of juristsc. Treaties

Art. 38(1) of the Statute of the International Court of Justice 1. International conventionsestablishing rules expressly recognized bycontesting states

2. International customevidence of a general practice accepted as law3. General principles of law recognized by civilized nations4. Subsidiary means for determination of rules of law

a. Judicial decisionsb. Teachings of the most highly qualified publicists

Restatement of Foreign Relations Law of the US

1. Customary Law2. International agreement3. General principles common to the major legal system


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Sources of International Law1. Custom 4. Generally recognized principles of law2. Treaties 5. Judicial decisions3. International agreements 6. Teachings of highly qualified publicists

Custom or Customary Law

A general and consistent practice of states followed by them from a sense oflegal obligation

Elements:1. Material factorhow state behaves

o Elements of Practice of sates or ususa. Durationmay be either short or long; not the most important

element

North Sea Continental Shelf Cases: Short duration, byitself, will not exclude the possibility of practice maturinginto custom provided that other conditions were satisfied.State practice should be extensive & uni formin the sense ofthe provision invoked, and should have occurred in such away as to show a general recognition that a rule of law orlegal obligation is involved.

b. Consistencycontinuity and repetitionAsylum Case: Colombia wanted Haya de la Torre be granted

safe conduct & be a refuge. Columbia had not proven the

existence of a constant & uniform practice of unilateralqualification as a right of the State to refuge and an obligationupon the territorial state.

c. Generality of the practice of statesuniformity and generalityof practice need not be complete but it must be substantial

Nicaragua v. US: practice need not be in absolute uniformitywith the purported customary rule as long as it is consistentwith such rules.

Opinio Jurisbelief that a certain form of behavior is obligatory

Nicaragua case: for a new customary rule to be formed, not onlymust the acts concerned amount to a settled practice, but must beaccompanied by opinion juris sive necessitas

Dissenting states: subsequent contrary practiceo Dissenting states are bound by custom unless they had consistently

objected to it while the custom was merely in the process of

formation

o It is also possible that after a practice has been accepted as law,contrary practice might arise

Fisheries Jurisdiction Case: if the contrary practice should gaingeneral acceptance, it might instead become the law

Evidence of state practice and opinio jurisa. Treatiesb. Diplomatic correspondencec. Statements of national leaders and political advisersd. Conduct of statesInstant Custom

o A spontaneous activity of a great number of states supporting aspecific line of action

The Martens ClauseUntil a complete code of laws of war has been issued, inhabitants &belligerents are protected under the rule on the principles of the law ofnations as they result from: usages of civilized people, laws of humanity& public conscience

2. Psychological or subjective factorwhy they behave the way they doTreaties

Determine the rights and duties of states just as individual rights aredetermined by contracts

Binding force comes from the voluntary decision of sovereign states toobligate themselves to a mode of behavior

Treaties and Custom

If the treaty is intended to be declaratory of customary law, it may be seen asevidence of customary law

Adherence to treaties can be indicative also of adherence to practice as opiniojuris

If treaty comes later than a particular custom, treaty should prevail If a later treaty is contrary to a customary rile that has the status ofjus cogens,

custom will prevail The later custom, being the expression of a later will, should prevail A treaty is void if, at the time of its conc lusion, it conflicts with a preemptory

norm of general international law

Preemptory norm of general international law = a norm accepted andrecognized by the international community of States as a whole as a normfrom which no derogation is permitted and which can be modified only by asubsequent norm of general international law having the same character

General Principles of Law Recognized by Civilized Nations

This has reference to principles of municipal law common to the legalsystems of the world


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Judicial Decisions

Decisions of the court have no binding force except between the parties andin respect of that particular case

Decisions do not constitute stare decisis Decisions of the ICJ are not only regarded as highly persuasive in

international circles but they have also contributed to the formulation ofprinciples that have become international law

Teachings of Highly Qualified Writers and Publicists

Publicists = institutions which write on international lawa. The International Commissionb. The Institut de Droit Internationalc. International Law Associationd. Restatement of Foreign Relations Law of the USe. Annual publication of the Hague Academy of International Law

Equity

When accepted, is an instrument whereby conventional or customary lawmay be supplemented or modified in order to achieve justice

Where 2 parties have assumed an identical or a reciprocal obligation, oneparty which is engaged in a continuing non-performance of that obligation

should not be permitted to take advantage of a similar non-performance ofthat obligation by the other party

The Courts recognition of equity as part of international law is in no wayrestricted by the special power conferred upon it to decide a case ex aequo et

bono, if the parties agree thereto Kinds of Equity:

1. Intra legemwithin the law; the law is adapted to the facts of the case2. Praeter legembeyond the law; used to fill the gaps within the law3. Contra legemagainst the law; refusal to apply the law which is seen as

unjust

Other Supplementary Evidence1. UN Resolutionsgenerally considered merely recommendatory but if they

are supported by all the states, they are an expression of opinio juriscommunis

2. Soft LawNon-treaty Agreements; international agreements notconcluded as treaties and therefore not covered by the Vienna Conventionon the Law of Treaties

o Administrative Rulesguide the practice of states in relation tointernational organizations

CHAPTER 3 THE LAW OF TREATIES

Various names of Treaties

a. Conventions c. Covenants e. Protocols g.Modus vivendib. Pacts d. Charters f. Concordat

1969 Vienna Convention on the Law of Treaties

Governs treaties between states Entered into force in January 1980

Definition of Treaties

An international agreement concluded between States in written form andgoverned by international law, whether embodied in a single instrument orin 2 or more related instruments and whatever its particular designation

Even oral agreement can be binding, however, only written agreements thatare new, come under the provisions of the Vienna Convention

Characteristics to make it binding:1. Commitment was very specific2. There was a clear intent to be boundQatar v. Bahrain: exchange of notes between 2 heads of state considered aninternational agreement; minutes are not a simple record of the meeting,they enumerate commitments parties have consented; they create rights andobligations; they constitute an international agreement

Norway v. Denmark: oral declaration can be binding

Australia v. France and New Zealand: unilateral declarations concerninglegal or factual situations may create legal obligations; if given publicly withan intent to be bound, it is binding

Functions of Treaties

a. Sources of international lawb. Charter of international organizationsc. Used to transfer territory, regulate commercial relations, settle disputes,

protect human rights, guarantee investments

Different Kinds of Treaties

Multilateral Treaties Open to all states of the world; Create the norms which arethe basis for a general rule of law

Can either be Codification Treaties or Law MakingTreaties, or both

Treaties that createCollaborativeMechanism

Operate through the organs of the different states1. Universal scope2. Regional

Bilateral Treaties In the nature of contractual agreements which createshared expectations such as trade agreements of variousforms; Contract Treaties

The Making of Treaties

1. Negotiationforeign ministries, diplomatic conferences2. Power to negotiate


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3. Authentication of textsigning of the document; so that states will know thecontents & avoid misunderstanding

4. Consent to be bound:a. Signature e. Approvalb. Exchange of Instruments f. Accessionc. Ratification g. Other means if so agreedd. Acceptance

5. Accession to a treatystates which did not participate in the initial negotiationmay express their consent to be bound

6. Reservationsunilateral statement, however phrased or named, made by aState, when signing, ratifying, accepting, approving or acceding to a treaty,whereby it purports to exclude or to modify the legal effect of certainprovisions of the treaty in their application to the State

7. Entry into force of treatiesdate agreed or once consent given (but provisionalapplication can also apply)

8. Application of treatieso PACTA SUNT SERVANTAevery treaty in force is BINDING upon the

parties and must be PERFORMED by them in GOOD FAITH

o A party may NOT INVOKE INTERNAL LAW as justification for itsfailure to perform a treaty

o It is binding upon each party in respect of its entire territory unless adifferent intention appears in the treaty or is otherwise established

9. Interpretation of Treatiesa. Objective approachinterpretation according to the ordinary meaning of

the wordsb. Teleological approachinterpretation according to the telos or purpose of

the treatyc. Subjective approachhonors special meaning given by the parties

Air Frace v. Saks: airplane passenger became 1 ear deaf. Accident as anunusual or unexpected happening, not passengers own internal reaction.Facts to prove: text of Warsaw Convention, drafter by continental jurists,consistent with history of Warsaw Convention, conduct of the parties, USCourt precedence

Invalidity of Treaties1. Errorrelates to a fact or situation which was assumed by that State to exist

at the time when the treaty was concluded and formed2. FraudState has been induced to conclude a treaty3. Corruption of a Representative of a State4. Coercion of a Representative of a State5. Coercion of a State by the threat or use of force6. Violation of jus cogenstreaty is void if, at the time of its conclusion, it

conflicts with a preemptory norm of general international law

Amendment and Modification of Treaties

Amendmentformal revision done with the participation, at least in itsinitial stage, by all the parties to the treaty

Modificationinvolves only some partiesTermination of Treaties

Terminated or suspended according to the terms of the treaty or with theconsent of the parties

1. Material Breacha. Repudiation of the treaty not sanctioned by the present Conventionb. Violation of a provision essential to the accomplishment of the object or

purpose of the treaty

2. Supervening Impossibility of Performanceo Results from the permanent disappearance or destruction of an

object indispensable for the execution of the treaty3. Rebus sic stantibus

o Resulted in a radical transformation of the extent of the obligationsimposed by it, may, under certain conditions, afford the partyaffected a ground for invoking the termination or suspension of thetreaty

Fisheries Jurisdiction Case: changes of circumstances which must beregarded as fundamental or vital are those which imperil the existence orvital development of one of the parties. Change in circumstance alleged by

Iceland cannot be said to have transformed radically the extent of thejurisdictional obligation.

Namibia Case: if revocation only takes place with the concurrence of themandatory (South Africa), it would be contrary to the general principle oflaw governing termination on account of the breach and would be an

impossibility. Consent of the wrongdoers to such a form of terminationcannot be required.

Danube Dam Case: impossibility of performance may not be invoked whenit results from that partys own breach. Changes of political nature, reducedeconomic viability of the project, and progress of environmental knowledgeand international environment law are not of such nature that wouldradically transform obligations. Violation of other treaty rules or of generalinternational law may justify taking of certain measures but not constitute aground for termination. Czechoslovakia did not act unlawfully when it

constructed works.

Procedure for the Termination of Treaties 1. Notify other parties of ground and measure proposed2. If no objection, carry out the measure proposed3. If there is an objection, follow Art. 33

Authority to Terminate

Belongs to the one who has authority to enter into the treaty In the Philippines, authority to conclude treaties is shared between theSenate and the President


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Succession to TreatiesClean Slate Rule: newly independent state is not bound to maintain in force orto become a party to any treaty by reason only of the fact that at the date of thesuccession of states, the treaty was in force in respect of the territory to which thesuccession of state relates

CHAPTER 4 INTERNATIONAL LAW AND MUNICIPAL LAW

Dualism v. Monism

Municipal Law International Law

Dualist orPluralist Theory

*wheninternational andmunicipal law arein conflict,Municipal lawmust prevail

As tosource

Product of localcustom or oflegislation

Treaties and customgrown among states

As torelationstheyregulate

Regulates relationsbetween individualpersons under thestate

Regulates relationsbetween states

As to theirsubstance

Law of sovereign overindividuals

Law betweensovereign states

Monism orMonistic Theory

*International andMunicipal lawsbelong to only onesystem of law

Two theories:A. Municipal law subsumes and is superior to

international lawB. International law is superior to Domestic Law

(supported by Kelsen)

Municipal Law in International Law

Follows the dualist tradition and blocks domestic law from entry into theinternational arena

A state which has violated a provision of international law cannot justifyitself by recourse to its domestic law

A state which has entered into an international agreement must modify itslaw to make it conform to the agreement

International Law in Domestic Law

How does international law become part of domestic law for dualists?1. Doctrine of Transformation

o It must be expressly and specifically transformed into domestic lawthrough the appropriate constitutional machinery such as an act ofCongress or Parliament

o Treaties do not become part of the law of a state unless it isconsented to by the state

2. Doctrine of Incorporationo They become part of the law of the land

Philippines adheres to the dualist theory and at the same time adopts theincorporation theory and thereby makes international law part of domesticlaw

International law can be used by Philippine courts to settle domesticdisputes

Art. 2, Sec. 2 of the Constitution: only customary law and treaties whichhave become part of customary law become part of Philippine law byincorporation

Conflict between International Law and Domestic Law: International Rule Before an international tribunal, a state may not plead its own law as an

excuse for failure to comply with international law

Exception: Art. 46 of Vienna Convention = in cases where the constitutionalviolation was manifest and concerned a rule of its internal law offundamental importance

Manifest = objectively evident to any State conducting itself in the matter inaccordance with normal practice and in good faith

Conflict between International Law and Domestic Law: Municipal Rule

Domestic courts are bound to apply the local law Should a conflict arise between an international agreement and the

Constitution, the treaty would not be valid and operative as domestic law Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the

Supreme Court to declare a treaty unconstitutional; however, even ifdeclared unconstitutional, the treaty will not lose its character as aninternational law

Head Money Case: treaty is not superior to acts of Congress

Whitney v. Robertson: courts will construe a treaty and an act of legislationas to give effect to both. But if the two are inconsistent, the one last in date

will control the other. the unsatisfied country will have to present itscomplaint to the executive, not to the courts.

Documents

PIL Chapters 1-4