Ateneo 2007 Political Law (Public International Law)
Ateneo 2007 Political Law (Public International Law)
Ateneo 2007 Political Law (Public International Law)
i.
ii.
Distinction between a subject and object of
international law
1. Subject - An entity that has rights and
responsibilities under international law; it can
be a proper party in transactions involving
the application of international law among
members of the international community.
2. Object - A person or thing in respect of
which rights are held and obligations
assumed by the subject; it is not directly
governed by the rules of international law; its
rights are received, and its responsibilities
imposed,
indirectly
through
the
instrumentality of an international agency.
NOTE: Given the trend in International Law today,
with the birth of the ICC and Arbitration Courts, the
line between a Subject and Object of International is
increasingly being blurred.
Divisions of International Law
1. Laws Of Peace- governs the normal
relations of States
2. Laws Of War - rules during periods of
hostility
3. Laws Of Neutrality- rules governing States
not involved in the hostilities
SOURCES OF INTERNATIONAL LAW
Article 38 of the Statute of the International Court
of Justice (ICJ).
1. Primary
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Generally, a treaty only binds the parties.
However, treaties may be considered a
direct source of Int'l law when concluded
by a sizable no. of States, and is
reflective of the will of the family of
nations (in which case, a treaty is
evidence of custom).
c.
2. Secondary
a. Judicial Decisions - a subsidiary means
for the determination of rules of law (e.g.,
determining what rules of customary IL
exist) that is acceptable so long as they
correctly interpret and apply int'l law.
NOTE: Even decisions of national courts, when
applying int'l law, are acceptable. Ex. Principles
on diplomatic immunity have been developed by
judgments of national courts.
b. Teachings Of The Most Highly
Qualified Publicists -- The word
'Publicist' means 'learned writer.' Learned
writings, like judicial decisions, can be
evidence of customary law, and can also
play a subsidiary role in developing new
rules of law.
Requisites for Highly Qualified Publicist
1. Fair and impartial representation of law.
2. By an acknowledged authority in the field.
Q: What is 'INSTANT' CUSTOM?
A: Customary law may emerge even within a
relatively short period of time, if within that period,
State Practice has been uniform and extensive. It
comes about as a spontaneous activity of a great
number of states supporting a specific line of action.
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While the
Constitution vests
the power to
NEGOTIATE
treaties with the
President, such
must be RATIFIED
by the 2/3 of the
Senate to become
valid and effective
(Art.7, Sec 21)
Do not need to be
ratified by the Senate
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Law
in
2 Views:
1. Doctine Of Incorporation - rules of
international law form part of the law of the
land and no further legislative action is
needed to make such rules applicable in the
domestic sphere.
a. Such is recognized in art. 2, sec. 2, as
the Philippines "adopts the generally
accepted principles of international law
as part of the law of the land."
b. Rules of international law are given
equal standing with, but are not superior
to, national legislative enactments.
Thus, the Constitution, as the highest
law of the land, may invalidate a treaty
in conflict with it. (Secretary of Justice v.
Hon. Lantion and Mark Jimenez, Jan.
18, 2000)
2. Doctrine Of Transformation - the generally
accepted rules of int'l law are not per se
binding upon the State but must first be
embodied in legislation enacted by the
lawmaking body and so transformed into
municipal law. Only when so transformed
will they become binding upon the State as
part of its municipal law.
In case of conflict between international law and
domestic law:
1. International rule: Before an international
tribunal, a state may not plead its own law
as an excuse for failure to comply with
international law. The state must modify its
laws to ensure fulfillment of its obligations
under the treaty, unless the constitutional
violation is manifest and concerns a rule of
internal law of fundamental importance.
2. Municipal rule: When the conflict comes
before a domestic court, 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. It does not, however, lose its
character as international law.
SUBJECTS OF INTERNATIONAL LAW
State
Elements of a state:
Art. 1, Montevideo Convention:
1. a permanent population;
2. a defined territory;
3. government;
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Succession Of Government
1. In succession of government, the integrity of
the original State is not affected as what
takes place is only a change in one of its
elements, the government.
2. Effects of a change in government:
a. If effected by peaceful means, the new
government inherits all rights and
obligations of the old government.
b. If effected by violence, the new
government inherits all the rights of the
old government. However, the new
government may reject the obligations
of the old government if they are of a
political complexion. If the obligations
are the consequence of the routinary act
of administration of the old government,
they should be respected.
Territory
1. Methods used in defining the territorial sea
2. Normal baseline method
Under this method, the territorial sea is
drawn from the low-water mark of the coast
to the breadth claimed, following its
sinuosities and curvatures but excluding the
internal waters in bays and gulfs.
3. Straight baseline method
Straight lines are made to connect
appropriate points on the coast without
departing radically from its general direction.
The waters inside the lines are considered
internal.
4. Some modes of acquisition:
a. Cession
It is a derivative mode of acquisition
by which territory belonging to one state
is transferred to the sovereignty of
another state in accordance with an
agreement between them.
b. Subjugation
It is a derivative mode of acquisition
by which the territory of one state is
conquered in the course of war and
thereafter annexed and placed under
sovereignty of the conquering state.
c. Prescription
It is a derivative mode of acquisition
by which territory belonging to one state
is transferred to the sovereignty of
another state by reason of the adverse
and uninterrupted possession thereof by
the latter for a sufficiently long period of
time.
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STATE RESPONSIBILITY
1. It is the doctrine which holds a state
responsible for any injury sustained by an
alien within its jurisdiction. Because of an
international wrong imputable to it, the state
will be responsible if it is shown that it
participated in the act or omission
complained of or was remiss in redressing
the resultant wrong.
2. Elements of State Responsibility
a, breach of an international obligation
b, attributability
3. Types of State responsibility
a, Direct responsibility-attaches to the
state if the wrongful act/omission was
effected through any of its superior
organs acting on its behalf
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HOSTILE/NON-AMICABLE METHODS
1. RETORSION - is a lawful act which is
designed to injure the wrongdoing State.
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Use Of Force
1. Under Article 2(4) of the UN Charter, all
member States are bound to refrain from the
threat or use of force against the territorial
integrity or political independence of a State.
Recognized exceptions:
a) self-defense
b) military action taken or authorized by the
UN or competent Regional organizations
(such as NATO).- collective self- defense
International Contracts
Usually, agreements between States and foreign
corporations contain stipulations as to which national
legal system governs the contract. Occasionally,
however, in case of powerful multinational
companies, such contracts are placed not under any
single system of municipal law, but under
international law, general principles of law, or the
provisions of the contract itself.
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WAR
Armed contention between public forces of states or
other belligerent communities implying employment o
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purpose of imposing their respective demands upon
each other.
BASIC PRINCIPLES OF WAR:
1. Principle of Military Necessity- belligerents
may employ any amount and kind of force to
compel complete submission of enemy with
least possible loss of lives, time, and money.
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What are the States-parties
obligations
under the
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Covenant?
1. Specific Obligations under Article 2
To take steps ti the maximum
available resources, towards the progressive
realization of the rights in the covenant;
Non-discrimination- states guarantee
the exercise of the rights without
discrimination (Art. 2 [2]).
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