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INTERNATIONAL LAW International Law traditional definition is that these are body of rules and principles of actions which

h are binding upon civilized states in relations to one another. STATES are the sole actors in this definition. However, today while sovereign states are principally the subject of international law, they are now joined by international organizations and even by individuals, who customarily are objects of international law, ex. Are incomplete subjects like Taiwan and the Sovereign Order of Malta, the Holy See and the Vatican City. Brief Historical Development of International Law: 1. Roman exchanges of diplomatic emissaries peace treaties etc. Progressive rules of jus gentium became a law common to all men in the vast roman empire;
2. Modern International Law began with the birth of nation states in the

medieval times and the following are some significant milestone in the development of international law:

Peace of Westphalia which ended the 30 year war in 1618-1648 gave rise to the principle of pacta sunt servanda; Congress of Vienna 1815 which ended the Napoleonic Wars; Covenant of League of Nations 1920 which included the treaty of Versailles which ended world war I and created the Permanente Court of International Justice; Founding of the UN in 1945 as an aftermath of WW2 The Cold War Period; Dissolution of the Soviet Union which lead to the emergence of international relations based on multiple sources of power and not mainly based on ideology;

SOURCES OF INTERNATIONAL LAW


1. Customs or customary law general and consistent practice of states

followed by them from a senses of legal obligations [opinio juris];

2 Things must be considered the (1) material factor practice of states, the duration is irrelevant what is important is to show that there is a general recognition that a rule of law or legal obligation is involved (2) the subjective factor , why do states behave they do once the existence of such practice is established it becomes necessary to determine why the states behave the way they do if it the customs arise from a senses of opinion juris then it becomes and international law or rule.

Ex. Paquete Havana Case exemption of fishing vessels from capture as a price of war;

Principle of JUS COGENS Customary international law, which has the status of peremptory norm that is accepted and recognized by the international community of states as a RULE, from which no derogation is permitted and which can be modified only by the subsequent norm having the same character. EX: slave trade, piracy, terrorism. Accordingly, a treaty whose provisions contravene such norms/rules may be invalidated.

Asylum Case between Peru and Colombia

Can a dissenting state be bound by customs as an international law? Yes, except when it could establish that it has consistently objected to it while in the process of formation.

Can there be an instant custom as a source of international law? Obviously this is not borne by continued and prolonged use rather it comes about as a spontaneous activity of a great number of states supporting as specific line of action. Ex. Aftermath of 9/11 classifying the incident as an armed attack under article 51 of the UN Charter and therefore justifying COLLECTIVE SELF DEFENSE.

2. Treaties or International Agreements under the principles of pacta

sunt servanda. Primarily governed by the 1969 Vienna Convention on the laws of Treaties it entered into force in the 1980 [Pending is the convention of the law of treaties between states and international organizations or Between international organizations adopted in 1986 and will come into force 30 days after the 35th ratification or accession of states]

What is a treaty? an international agreement concluded between states in written form and governed by the international law, whether embodied in a single or in two or more instruments and whatever its particular designation. Principle of Pacta Sunt Servanda treaties must be observed in good faith. If necessary, the state concerned must modify its national legislation and constitution to make them conform to the treaty, in order to avoid international embarrassment. In the Phils., however, treaties may be declared invalid if contrary to the Constitution. SOFT LAW - non treaty agreements, these are international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties. The Vienna convention allows RESERVATIONS to treaty stipulations. Can a treaty be invalidated? Yes usually the grounds for invalidation of contracts apply ex. Errors, fraud, corruption and duress OR VIOLATION OF JUS COGENS or the peremptory norms of general international law. Can a treaty be terminated? Yes 1. Expirations 2. Material breach 3. Impossibility of performance 4. Change in fundamental conditions (rebus sic stantibus)

3. General principles of law recognized by civilized states this refers not

to principles of international law but MUNICIPAL LAWS common to the legal system of the world. Most of these principles however have become part of customary laws or have been incorporated into conventional international law;
4. Judicial decision of international courts but this is binding only

between the parties, therefore the principles of stare decisis do not apply.
5. Teachings of highly qualified publicists; 6. Equity Ex. Case between Netherlands and Belgium issue is the

diversion of water from the Meuse; Kinds Equity intra legem (within the law) Praeter legem (beyond the law) Contra legem (against the law) Divisions of International Law; 1. Laws of Peace 2. Laws of War 3. Laws of Neutrality INTERNATIONAL LAW vs. MUNICIPAL LAW - correlate with doctrine of incorporation and auto limitation.

ML is issued by a political superior for observance by those under its authority; IL is not imposed but adopted by states as a common rule of action. ML consists of enactments of the law-making authority; IL is derived from such sources as international customs, conventions, or general principles of law. ML regulates relations of individuals; IL applies to relations between states and international persons. ML is redressed through local judicial and administrative processes; IL is resolved through state-to-state transactions.

ML entails individual responsibility; IL entails collective responsibility

Doctrine of Incorporation decrees that rules of international law are given equal standing with, but are not superior to national legislative enactments. This is expressed in Sec. 2, Art. II of the Constitution the Phils renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. A treaty may repeal a statute, and a statute may repeal a treaty; thus, the principle of lex posterior derogate priori, that which comes last in time, will usually upheld by the municipal tribunal.

ACTS OF STATE DOCTRINE Underhill vs. Hernandez [1897] - every state is bound to respect the independence of every sovereign states and the courts of one country will not sit down in judgement on the acts of the government of the another, done within its territory. Redress of grievances by reason of such acts must be obtained through means open to be availed of by sovereign powers as between themselves.

STATE RESPONSIBILITY SUBJECT vs. OBJECT OF INTERNATIONAL LAW SUBJECTS 1. States


2. Colonies and dependencies 3. Mandates and trust territories

4. Vatican 5. UN
6. Belligerent Communities 7. International Administrative Bodies

8. Individuals to a certain extent

STATES Tobar or Wilson Doctrine Precludes the recognition of any government coming into existence by revolutionary means until the freely elected representatives of the people have organized a constitutional government Estrada Doctrine dealing with whatever government is in effective control without raising the issue of recognition Stimson Doctrine Precludes the recognition of any government established as a result of external aggression Fundamental rights of a State
1. existence and self preservation 2. sovereignty and independence

3. equality
4. territorial integrity and jurisdiction

5. legation or diplomatic intercourse OBJECTS In traditional concepts, individuals are generally considered OBJECTS OF INTERNATIONAL LAW, as such they do not posses international and legal rights which they could assert on their own, whatever wrongs committed against them can be redressed only by states or organization with international legal personality. STANDARDS FOR THE PROTECTION OF ALIENS Minimum international Standard as defined in US vs. MEXICO 1926 [ Neer Claim shot to death by armed man in Mexico ] the treatment of alien in order to constitute an international delinquency should amount to an outrage, to bad

faith, to wilful neglect of duty or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would recognize its insufficiency. DOCTRINE OF STATE RESPONSBILITY when an injury has been inflicted to a national of another state within the territory of another, there is a need to determine whether the state can be held liable. When it commits an internationally wrongful act then it becomes liable. Internationally wrongful act of a state is when a conduct consisting of an act or omission is attributable to the state under international law and constitutes a breach of an international obligation.

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