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MODERN DEFINITION
Public International Law is a body of principles, norms and processes which deals with the conduct of
states and of international organizations and governs their conduct affecting the interests of the
international community of States as a whole.
TRADITIONAL DEFINITION
Public International Law is the body of rules and principles of action which are binding upon civilized
states in their relation to one another
NATURAL LAW THEORY. The natural law theory posits that law is derived by reason from the
nature of man. PIL is said to be an application of natural reason to the nature of the state-
person.
PRAGMATIC THEORY. There is general respect for law and also there is concern about the
consequences of defiance either to oneself or to the larger society. PIL is a law because it is seen
as such by states and other subjects of international law.
ECLECTIC/GROATIAN SCHOOL. PIL is premised both on the natural moral law and on common
consent (rules of positive origin). This is the school of thought mostly sided by scholars. A State,
after all, consists of rational human beings; it must therefore be guided by rules of moral
conduct. Upon the other hand, a State is bound by its treaty commitments and by international
legal customs
1. It has for its general objective the establishment of peace among the general populace
of ancient Rome. This is evident from the exchange of diplomatic emissaries and peace
treaty
2. It seeks to establish rules common to all men coming from different nations. The
progressive rules of jus gentium, seen as a law common to all men, became the law of
the vast Roman empire
Modern international law began with the birth of nation-states in the Medieval Age. Hugo
Grotius (Dutch) is considered as the father of modern international law. He referred to the term
law of nations in his work De Jure Belli ac Pacis which was later given the name international
law by Jeremy Bentham.
1. The Peace of Westphalia which established a treaty based framework for peace
cooperation. It was at this time that pacta sunt servanda arose.
2. Congress of Vienna (1815) which ended the Napoleonic Wars and created a
sophisticated system of multilateral political and economic cooperation.
3. Covenant of the League of Nations (1920) which included the Treaty of Versailles
which ended World War I. In the aftermath of World War I, the victors decided to
create an institution designed to prevent the recurrence of world conflagration. Thus,
the League of Nations was born. The League created the Permanent Court of
International Justice.
4. The failure of the League of Nations, the Second World War, and the subsequent
establishment of the United Nations Organization in 1945. This marked the shift of
power away from Europe and the beginning of a truly universal institution. This
universalization was advanced by decolonization which resulted in the expansion of
the membership of UN. New states, carrying a legacy of bitterness against colonial
powers, became members of the UN. It was during this period that three major
groupings of state arose:
SOURCES OF INTERNATIONAL LAW UNDER ARTICLE 38(2) OF THE STATUTE OF THE INTERNATIONAL
COURT OF JUSTICE
PRIMARY SOURCES
1. International conventions, whether general or particular, establishing rules expressly recognized
by contesting states
2. International custom, as evidence of a general practice accepted as law
3. The general principles of law recognized by civilized nations
SECONDARY SOURCES
1. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations
2. The Court may decide a case ex aequo et bono (principle of equity), if the parties agree thereto
INTERNATIONAL CONVENTIONS
Treaties (Conventional International Law) determine the rights and duties of states just as
individual rights are determined by contracts. Their binding force comes from the voluntary
decision of sovereign states to obligate themselves to a mode of behaviour
o Obligations erga omnes v. Obigations inter se. Obligations erga omnes pertains to the
obligation of every State towards the international community as a whole. Obligations
inter se are those which a State owes another state.
o NOTE: While treaties are generally binding only on the parties, the number of the
contracting parties and the generality of the acceptance of the rules created by the
treaty can have the effect of creating a universal law in much the same way that
general practice suffices to create customary law
INTERNATIONAL CUSTOMS
International customs is a general and consistent practice of states followed by them from a
sense of legal obligation. It has two basic elements: (a) the material factor, that is, how states
behave, and (b) psychological or subjective factor, that us, why the states behave the way they
do
The Material Factor: Practice of States or Usus. The initial factor for determining the existence
of custom is the actual behaviour of states (usus). This includes several elements: duration,
consistency, and generality/uniformity of the practice of states.
The Psychological or Subjective Factor: Opinio Juris (sive necessitates) or the belief that a certain form
of behaviour is obligatory, is what makes a practice an international rule. Without it, practice is not a
custom, thus not an international law.
Evidence of state practice and opinion juris: treaties, diplomatic correspondence, statements of
national leaders and political advisers, as well as the conduct of states. (Bernas). Treaties and decisions
of international and municipal tribunals. It may take the form of relevant legislation and diplomatic
correspondence (Magallona). The existence of opinion juris is a matter of proof. The burden of
proving its existence falls on the state claiming it
The principle of persistent objector. When a state continues to object to a new customary norm at the
time when it is yet in the process of formation, by such persistent objection, the norm will not be
applicable as against that State.
o Martens Clause. First found in the 1899 Hague Peace Convention and was inserted by
Russian publicist Fyodor Martens which states that: Until a more complete code of
laws of war has been issued, the High Contracting Parties deem it expedient to declare
that, in cases not included in the Regulations adopted by them, the inhabitants and
belligerent remain under the protection and the rule of the principles of the law of
nations as they result from the usages established among civilized peoples, from the
law of humanity, and the dictates of the public conscience.
TREATIES V. CUSTOMS
Jus cogens v. Jus dispositivum. Jus cogens is a peremptory norm of international law from
which no derogation is permitted and which can be modified only by a subsequent norm of
international law having the same character. It stands on a higher category than a jus
dispositivum norm which States can set aside or modify by agreement
If a treaty comes later than a jus dispositivum norm, the treaty shall prevail. A treaty
manifests a deliberate choice of the parties and the principle of pacta sunt servanda should be
followed
If the treaty comes later than a jus cogens norm, the custom shall prevail
If the treaty comes later than a jus dispositivum norm, it is NOT CERTAIN which will prevail
EXAMPLES
2. Private rights acquired under one regime does not cease upon change of government
UN Resolutions. Declarations of legal principles and Resolutions by the United Nations are
generally considered merely recommendatory. But if they are supported by all the states, they
are an expression of opinion juris communis.
DUALIST OR PLURALIST THEORY. The dualist theory affirms that the two legal systems
(international law and municipal law) are distinct and separate from each other, each supreme
in its own sphere and level of operation. The two legal systems being separate, international
law becomes binding on states by incorporation of general norms of international law, or by
the transformation of conventional rules of international law into municipal law.
MONISTIC THEORY OR MONISM. International law and domestic law belong to only one
system of law. It adheres to the theory of unity of the two legal systems, both international
law and municipal law being manifestations of one and the same body of legal norms binding
on states as well as individuals.
How do you resolve a conflict between international law and municipal law?
Subjects of international law directly possess rights and obligations in the international legal
order, thus they are deemed to possess international legal personality.
Objects of international law are those who indirectly have rights under or are beneficiaries of
internal law through subjects of international law, hence, they are not vested with international
legal personality.
General or objective international personality. Rights and obligations are conferred by general
international law and such personality is binding erga omnes
1. Insurgents gain the status of being a subject of international law if they satisfy
the material field of application of the 1977 Protocol II to the 1949 Geneva
Convention. This requires two requisites: (a) the armed dissident must be under
responsible command, and (b) they must exercise such control over a part of its
territory as to enable them to carry out sustained and concerted military
operations
Under the Rome Statute which created the International Criminal Court, in war crimes
and crimes against humanity, international law imposes duties and liabilities upon
individuals and states alike
Under UNCLOS, an individual who has exploitation rights over a disputed area may file a
claim before the Sea-Bed Disputes Chamber of the International Tribunal for the Law of
the Sea
In the Claims Settlement Declaration of 1981 between US and Iran, an individual who
has a monetary claim of more than $250,000 may directly file an action before the Iran-
US Claims Tribunal
INCOMPLETE SUBJECTS OF
INTERNATIONAL LAW
1. Protectorates. They are dependent states which have control over their internal affairs but
whose external affairs are controlled by another state. They were sometime referred to as
autonomous states, vassal states, semi-sovereign or dependent states.
2. Federal state. This is a union of previously autonomous entities. Various arrangements are
possible. One arrangement may involve placing full-authority in a central organ while another
arrangement might lodge authority in the individual entities to the detriment of the central
organ. The central organ will have personality in international law but the extent of
personality of the component entities can be a problem.
3. Mandated and Trust Territories. Mandated territories were territories placed by the League of
Nations under one or other of the victorious allies of World War I. The Mandate System was
replaced by the trusteeship system after the World War II under the Trusteeship Council.
4. Taiwan
5. The Sovereign Order of Malta. The Italian Court of Cassation in 1935 recognized its
international personality. Currently, it has diplomatic relations over forty states.
6. The Holy See and Vatican City. In 1929, the Lateran Treaty was signed with Italy which
recognized the state of the Vatican City for the purpose of assuring to the Holy See absolute
and visible independence and of guaranteeing to it absolute and indisputable sovereignty in the
field of international relations.
STATE AS SUBJECT OF INTERNATIONAL LAW
Under the Montevideo Convention of 1933 on Rights and Duties of States: The state
as a person of international law should possess the following qualifications: (a)
permanent population, (b) a defined territory, (c) government, and (d) the capacity to
enter into relations with other states.
Under the (Third) Restatement on the Foreign Relations Law of the United States, an
entity may satisfy the territorial requirement of statehood even if its boundaries have
not been finally settled, if one or more of its boundaries are disputed, or some of its
territory is claimed by another state. An entity does not necessarily cease to be a state
even if all its territory has been occupied by a foreign power or if it has otherwise lost
control of its territory temporarily
An entity may possess all the elements of a state but if one or more states do not
extend recognition to it, the entity would not be able to establish relations with those
states. Conversely, even if an entity does not possess all the elements of a state, it
may enjoy the status of a full-fledged state if recognized by a family of nations.
RECOGNITION OF GOVERNMENTS
PUBLIC DEBTS. Subject to the agreement between the states concerned, responsibility for the
public debt of the predecessor, and rights and obligations under its contracts remain with the
predecessor state, except as follows:
Where part of the territory of a state becomes territory of another state, local
public debt and the rights and obligations of the predecessor state under the
contract relating to their territory are transferred to the successor state;
Where a state is absorbed by another state, the public debt, and rights and
obligations under contracts of the absorbed state, is passed to the absorbing
state
Where part of the state becomes a separate state, local public debt and rights
and obligations of the predecessor state under contracts relating to the territory
of the new state, pass to the new state.
When part of the territory of a state becomes territory of another state, the
international agreements of the predecessor state ceases to have effect in
respect of the territory and the international agreements of the successor state
come into force there (Moving treaty rule or Moving boundaries rule.
Affected party may seek relief under rebus sic stantibus)
When a part of a state becomes a new state, the new state does not succeed to
the international agreements to which the predecessor state was party, unless,
expressly or by implication, it accept such agreements and the other
party/parties thereto agree or acquiesce (Clean slate theory or rule of non-
transmissibility)
1. RIGHT TO INDEPENDENCE. The right to exercise within its territory, to the exclusion of
others, the functions of a state. This carries an implied duty that a state should not
interfere in the internal affairs of other states. Flowing from these rights are
Jurisdiction over its territory and population;
The right to self-defense; and
The right of legation.
2. RIGHT TO EQUALITY. It does not mean equality in political or economic power. It means
that there should be equality in the enjoyment of legal rights by states regardless of
their size or status as a state;
3. RIGHT AND DUTY OF PEACEFUL CO-EXISTENCE. This includes mutual respect for states
territorial integrity and sovereignty, mutual non-aggression, and mutual non-
interference
DERIVATIVE MODES: (1) Cession, which is the transfer of territory by treaty, and
(2) Prescription, by which title is acquired by effective occupation of the territory
over a period of time.
MODES OF RESOLVING
CONFLICT OF JURISDICTION
BALANCING TEST. A state shall only exercise jurisdiction when the matter
involved substantially affect its interest. The effects on its interests must be
sufficiently strong to justify an assertion of extraordinary authority.
EXTRADITION
Extradition is an act or process by which a State, in compliance with a formal demand or request,
surrenders to another State an alleged offender or a fugitive criminal who has sought refuge in
the territory of the first State, in order to stand trial or to complete his prison term.
It may be executed (1) through diplomatic negotiation based on comity or friendly relations
between the two States concerned, or (2) by means of an extradition treaty
There are two kinds of fugitives: (1) fugitive political offender, and (2) fugitive
criminals.
Two types of extradition treaties: (1) the classical type which specified the
offenses for which extradition is provided, and (2) the modern type which
contains no list of offenses but provides for extradition in all cases where the
offense is punishable in both the demanding and surrendering States.
5. In the absence of special agreement, the offense must have been committed
within the territory or against the interests of the demanding state
6. The act for which the extradition is sought must be punishable in both the
requesting and requested states under what is known as the rule of double
criminality.
After being taken into custody, potential extraditees may apply for bail. Since the applicants have a
history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to
the community; and (b) there exist special, humanitarian or compelling circumstances. In extradition
cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of
each case.
Principle of state/international responsibility
DOCTRINE OF SOVEREIGN IMMUNITY. A state enjoys immunity from the exercise of jurisdiction
by another State
ACT OF STATE DOCTRINE. The courts of one country will not sit in judgment of the acts of the
government of another done within its territory.
RELATED PRINCIPLES
Under the PRINCIPLE OF ATTRIBUTION, the act of the organs or officials of a state is
attributable to that state. This is true even if the acts of its officials are ultra vires or
contrary to its internal law.
2. Cease from performing with the wrongful act and to offer assurances that it will not be repeated
Reprisal is an act of self-help by the injured State, acts in retaliation for acts
contrary to international law on the part of the offending state, which have
remained unredressed after a demand for amends.