International law and sources of International Law

What is international law?

Classical definition: It is a body of rules and principles of action which are binding upon civilized states in their relations to one another 3rd restatement of Foreign Relations Definition: The law which deals 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. The classical definition limits the subjects of international law to pure state actors, whereas, the modern definition emphasizes the expanded scope of IL which now covers relations with international organizations and persons. This change has come about with the rapid advancement of technology, more extensive international trade, increased awareness of human rights violations, common heritage issues and many other factors that compel the international community to be cognizant of the roles of said stakeholders. The modern definition likewise goes beyond the primary concern for the preservation of peace, as it now covers all the interests of contemporary international and even domestic life.

Public international law vs. Private international law

PIL governs relationships between and among states, as well as their relations with international organizations and persons; while the latter concerns the intrusion of foreign law in the domestic sphere where issues like the applicability of foreign law or the role of foreign courts are tackled.

What are the sources of International Law? ----- formal and material sources
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, 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. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. - Article 38(1), Statute of The International Court Of Justice

What is a treaty?
(a) treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; -Article 2 1(a), Vienna Convention on the Law of Treaties

What is custom?
Custom or customary international law means a general and consistent practice of states followed by them from a sense of legal obligation (Restatement). It basically consists of 2 elements, namely, state practice- which consists of what states say and do, with an appreciation of the duration, consistency and generality of said conducts; and opinio juris- the belief that a certain form of behaviour is legally obligatory, and not just something done out of courtesy, fairness, morality, comity, or humanitarian considerations.

What are generally accepted principles of international law?

These are basically principles of municipal law (and natural justice) common to the various legal systems of the world. It includes the principles like due process of law and unjust enrichment, as well as conduct in environmental protection and commercial investment field. In the Philippines, generally accepted principles of international law are adopted as municipal law by virtue of the doctrine of incorporation laid out in Section 2, Article 2 of the 1987 Constitution.

How about judicial decisions?

These are basically decisions of international tribunals such as the ICJ. However, as Article 59 prescribes that decisions of the court shall have no binding effect except as between the parties involved in a particular case, these judicial decisions are merely considered as highly persuasive. They are merely subsidiary means for the determination of rules of law that is acceptable.

What are teachings of the most highly qualified publicists?

These are learned writings of highly qualified publicists that are acknowledged authorities in certain fields of international law who imparts fair and impartial representation of law through oft-cited publications. To be considered as one depends on how often one is cited.

What is ex aequo et bono?

It is the concept that refers to the mandate to a judge to rule in justice and fairness that equity overrides all other rules of law- in order to achieve an equitable and fair determination of the controversies before him. The ICJ, however, has no power to decide a case ex aequo et bono, unless all parties agree thereto.

What is jus cogens?

Jus cogens literally means compelling law. In international law, it refers to the norms that command peremptory authority superseding conflicting treaties and custom, such that no derogation is permitted and that only a subsequent norm of the same character can modify it.

Elements of jus cogens:

1. 2. 3. 4. a norm accepted and recognized by the international community of states as a whole no derogation is permitted which can only be modified by a subsequent norm having the same character.

International Law and Municipal Law

Explain dualism and monism in relation to municipal or domestic law
Dualism or the dualist theory basically holds that domestic and international law are different from and are independent of each other, as they differ in source, they regulate different subject matters, and they differ in substance. Monism on the other hand, has a unitary concept of law that tends to see both international and domestic law as part of one legal system, wherein one may supersede the other whenever conflicts between both arise. Those who maintain the dualist theory hold that in case of conflict, municipal law prevails - such that there is a non-recognition of automatic adoption of IL into municipal law and need for ILs transformation and translation to national law. On the other hand, those who adhere to the monist theory adheres to automatic incorporation of IL into a states legal system. However, adherents of monism tend to fall to two categories: either that international law prevails (Kelsen) or domestic law supersedes international law (Lauterpacht).

Subjects of International Law

Subjects of international law are those recognized as capable of possessing rights, obligations, and the capacity to bring action under international law. Originally, states were the only recognized subjects of international law as only states possessed international personality. However, the advent of ramified transnational affairs over the years necessitated the recognition of other stakeholders. Such other entities are now recognized to have some standing in the international arena, albeit the predominance of states as the actors that possess the fullest personality.

States
According to Article 1 of the Montevideo Convention, a state is one with the following qualifications: (1) permanent population; (2) defined territory; (3) government; (4) capacity to enter into relations. Based on this definition, Philippine writers then define a state in this wise: it is a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which a great body of inhabitents render habitual obedience. Two theories, however, govern the recognition of states, namely: (1) constitutive- wherein recognition of the international community commences the existence of the state; and (2) declaratory - wherein compliance with the requisites of statehood make a state as such. xxx

International Organizations
International organizations are entities whose existence is owed to a treaty between two or more sovereign states. They have a functional personality which is limited to what is necessary to carry out their functions as found in the instruments of the organization. It is also pertinent to their function that they have international personality and that they are accorded certain rights, privileges, and immunities. The ASEAN and the UN are examples of international organizations.

Insurgents
To a limited extent, insurgent groups are likewise accorded international personality in order to extend better protection to victims of non-international armed conflicts. Said insurgents are granted standing provided that they meet the provided criteria under international agreements such as Protocol II. Under Protocol II, armed dissidents under a responsible command and who exercise control over a part of territory, satisfy the material field of application of the protocol and therefore recognized as having belligerent status against the de jure government and having treaty-making capacity. They are therefore bound to provisions under Protocol II upholding human rights of persons not taking part of the hostilities and the intervention of humanitarian bodies such as the ICRC. Other states are likewise required to maintain neutrality as to them and.

National Liberation Movements

National liberation movements are organized groups fighting in behalf of a whole people, against colonial domination and alien occupation and against racist regimes, in the exercise of their right of self-determination. Under Protocol I, the organized armed group is granted standing under international law, in the interest of humanitarian concerns, such that the authority representing said armed non-state actor may undertake to apply the Geneva Conventions and the Protocol by means of a unilateral declaration addressed to the depositary of Protocol I. By virtue of availing of such option, the group becomes a party to the said international agreement, under similar standing as the High Contracting Parties, regardless of its non-state status, and the provisions of law immediately apply to the conflict at hand as if in an international armed conflict.

Individuals
Individuals are usually the beneficiaries of international law. However, there are certain instances wherein they are personally bound to uphold certain obligations under international law, albeit in a limited capacity. Laws proscribing crimes against humanity, genocide, aggression, and terrorism, for example, directly subject erring individuals to sanctions. Some treaties have also provided for the right of individuals to petition international bodies in instances wherein a contracting state has allegedly violated some of their human rights.

Corporations
Corporations are likewise granted legal standing in international law in instances wherein they are parties to internationalized contracts.

Incomplete Subjects
Protectorates are dependent states which have control over their internal affairs but whose external affairs are controlled by another state. A federal state, on the other hand, is a union of formerly autonomous entities, with the central organ predominantly having the personality in international law. Lastly, mandated and trust territories are those placed by the League of Nations under one or other of the victorious allies of WWI.

Territory
An element of a state; means an area over which a state has effective control. Although the boundaries may be uncertain, there should be a definitive core over which sovereignty is exercised. It includes, land, maritime areas, airspace and outer space.

What is the national territory of the Philippines?

The national territory of the Philippines comprises of the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimension, shall form part of the internal waters of the Philippines. -Article 1, 1987 Constitution

Modes of acquisition of sovereignty over territory

Discovery and occupation
This refers the acquisition of terra nullius, that is, territory which prior to occupation belonged to no state or which may have been permanently abandoned by a prior occupant. To be a valid form of acquisition, title derived from discovery and occupation must be accompanied by effective control, showing some form of continuous and peaceful display of sovereignty. These acts should be characteristic of authority for title to be definitive and not merely inchoate.

Prescription
This refers to the open, continuous, exclusive, notorious possession and occupation of a certain part of territory for a considerable length of time. Like discovery and occupation, this mode requires effective control, however, the required length of such control exceeds that of the former mode and the object of prescription is not terra nullius.

Cession
Cession is acquisition of territory through a treaty.

Conquest
Conquest is no longer recognized as a valid form of acquisition of territory (proscribed by the 1970 Declaration of Principles of International law Concerning Friendly Relations and Cooperation among States. It refers to the taking of possession of a territory through armed force. It was necessary that the war had ended wither by treaty or by indication that all resistance had been abandoned. Also, the conqueror must have had the intention of acquiring the territory and not just occupying it temporarily.

Accretion and avulsion

Accretion is the gradual increase of territory by the action of nature, while avulsion is a result of sudden change. (i.e. volcanic eruption)

Contiguity
Islands situated outside territorial waters belong to a state due to the fact that its territory forms the terra firma (nearest continent or island of considerable size). natural correlation with the main island.

Intertemporal Law
Rules on territorial acquisition effective at the time of acquisition should be applied.

Right to Self-determination
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Airspace
Each state has exclusive jurisdiction over the air space above its territory. Consent for transit must be obtained from the subjacent nation. Present regime on air navigati

Outer Space

What is the archipelagic doctrine?

The archipelagic doctrine basically postulates that "The national territory of the Philippines comprises of the Philippine archipelago, with all the islands and waters embraced therein...the waters around, between and connecting the islands of the archipelago, irrespective if their breadth and dimensions, form part of the internal waters of the Philippines." Taken together with the straight baseline method, the archipelagic doctrine therefore looks at an archipelagic state as single geographical, economic, and political, entity with sovereignty extending to every part of its territory, instead of being just body of water with sporadically located islands with weak jurisdictional unity. Hence, any issue that may arise regarding its territory, in relation to national security, economic opportunities, and the like, the archipelagic principle upholds an archipelagic states territorial integrity and its exercise of sovereign power within its delineated territory, regardless of how unconventional the delineation may be, as long as it complies with the UNCLOS standards. The significance of this principle takes the front row regarding the issue on the right of innocent passage in archipelagic waters, as the UNCLOS establishes a right of innocent passage over waters which the Philippine Constitution considers as internal, prompting the Philippines to sign the UNCLOS with reservation.

Jurisdiction
Jurisdiction is the power of the state to regulate or otherwise impact upon people, property, and circmstances and reflects basic princriples of state sovereignty, equality of states and non-interference in domestic affairs. it may be achieved by means of legislative, executive or judicial action. Jurisdiction may be based on the following recognized grounds: 1. 2. 3. 4. 5. territoriality principle nationality principle protective principle universality principle passive personality principle

Territoriality Principle
A state has absolute (although not necessarily exclusive) power to prescribe, adjudicate amd enforce rules for conduct that occurs within its territory. An aspect of this principle is the effects doctrine wherein a state also has jurisdiction over acts occurring outside its territory but having effects within it. (subjective and objective) Revised penal code article which says that.... jurisdiction over foreign vessels in Philippine territory (Phils adhere to English Rule- territory where committed)

Nationality Principle
The nationality principle, on the other hand, states that every nation has the jurisdiction over its nationals even when those nationals are outside the state (see civil code provision, rules of court). Jurisdiction is based on the nationality of the offender. However, for a state to claim a person as its national, the state must have reasonable connection or an "effective link" with that person. the consent of the individual, adherence to jus sanguinis or jus soli, and compliance with naturalization laws, are not enough for one to be recognized by other states as a national to which he claims to belong. As in the Nottebohm case, t is the bond of nationality between the state and the individual which alone confers upon the State the right of diplomatic protection. Nationality is the legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.

Protective Principle
A state may exercise its jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by the states in the international community. This principle basically related to the conduct that the international community finds violative and is based on whether national interest is injured.

Universality Principle
The universality principle recognizes that certain activities, universally dangerous to states and their subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question. Jurisdiction is conferred in any forum that obtains physical custody of the perpetrator of certain offenses particularly heinous and harmful to humanity.

Passive Personality Principle

This principle asserts that a state may apply law particularly criminal law to an act committed outside its territory where the victim of the act was its national. This is increasingly accepted as applied to terrorist and other organized attacks on a states nationals by reason of their nationality, or to assassination of a states diplomatic representatives or other officials. It recognizes that each state has a legitimate interest in protecting the safety of its citizens when they journey outside national boundaries.

Conflicts of jurisdiction
US courts have developed the following modes to resolve conflicts of jurisdiction: 1. The Balancing Test In Timberlane Lumber Co. v. Bank of America, the issue was whether to assume jurisdiction in a case involving acts emanating from Honduras. The court employed a tripartite analysis as follows:

a. Was there an actual or intended effect on American commerce? b. Is the effect sufficiently large to present a cognizable injury to the plaintiffs? c. Are the interests of, and link to, the US including effects on American foreign commerce sufficiently strong vis--vis those of other nations, to justify an assertion of extraordinary authority? If the answer to all three questions is YES, then the court will assume jurisdiction 1. International Comity Even when a state has basis for exercising jurisdiction, it will refrain from doing so it its exercise will be unreasonable. Unreasonableness is determined by evaluating various factors, such as: a. the link of the activity to the territory of the regulating state; b. the connection between the regulating state and the person principally responsible for the activity to be regulated (ex: nationality, residence, economic activity); c. the character of the activity to be regulated; d. the existence of justified expectations that might be protected or hurt by the regulation; and e. the likelihood of conflict with regulation by another state. 1. Forum non conveniens If in the circumstances of the case, it be discovered that there is a real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis, then the doctrine of forum non conveniens is properly applied. The application of the doctrine is discretionary with the court. The court needs to weigh the private interest and the public interest factors. a. The private interest factors are: i. access to sources of proof ii. availability of compulsory process for unwilling witnesses iii. other personal problems which make trial easy, expeditious, and inexpensive. b. The public interest factors are: i. congestion ii. desire to settle local controversies at home iii. having the case tried in a forum at home with the applicable law.

EXTRADITION
Extradition is the surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted of a crime. It is a process that is governed by treaty. The legal right to demand extradition and the duty to surrender a fugitive exist only when created by treaty. The treaty may cover specific crimes only or all offenses considered criminal by both states. The following principles govern extradition: 1. No state is obliged to extradite unless there is a treaty; 2. Differences in legal system can be an obstacle to interpretation of what the crime is; and 3. Religious and political offenses are not extraditable. The procedure for extradition is normally through diplomatic channels.