PUBLIC INTERNATIONAL LAW

Ms. Kristine Margret M. Malang Saturdays 8:00-11:00/11:30-2:30

1. Is International Law law? If yes, what makes it law? International Law can become disregarded because of challenges such as the absence of an international executive or the difficulty of identifying violations but International Law is law because of the existence of the general respect for law. There are theoretical bases on what makes it law. The Consensual theory international law derives its binding force from the consent of states. Examples of consent are treaties and the voluntary adherence to customs and other practices. The Natural law theory states that law is derived by reason from the nature of man and International Law is an application of reason to the nature state of a person. However the most important reason on what makes it law is that it is seen as law by states and the other subjects of International Law. 2. How did International Law begin? Ancient IL began during the time of the Ancient Romans through treaties and other diplomatic practices. The jus gentium or the law common to men became the law of the Roman Empire. Modern IL then began during the Medieval Age where the principles were derived through Roman Law or Canon Law. Hugo Grotius is considered the father of modern IL because he authored the: law of nations and it was given the name of IL. Other milestones in the development of IL are: The Peace of Westphalia for peace cooperation, the Congress of Vienna which ended wars for its system og multilateral political and economic cooperation, and The Covenant on the League of Nations which ended WWI through the Treaty of Versailles. The league created the Permanent Court of International Justice. Because this court wasnt able to prevent WWII, the UN was created and the major groupings of states arose. These are: the Western states, socialist states and the, developing countries. 3. Discuss the most widely accepted statements on the sources of International Law.

There are two sources of IL which are the formal and the material sources. However, the most widely accepted statements on the sources of IL is Article 38(1) of the Statute of the International Court of Justice. It doesnt exactly speak of sources but rather on how the court should make decisions. These statements from Article 38(1) include the application of: a. International Conventions, Establishing rules which were expressed by contesting states, b. international custom, as evidence of general practice accepted as law, c. the general principles of law recognized by civilized nations, d. and the teachings of highly qualified publicists of various nations can also determine law. It also says the Court shall not prejudice its power to decide ex aequo bono of the parties agree or this simly means that there should be equity and equality for all. Another statement of sources is the Restatement (Third) of Foreign Relations Law of the United States which says that: IL is the acceptance of the community of states in the form of Customary Law, International Agreement or through general principles. It is the general consistent practice of states followed by them as a sense of legal obligation. Basically, both these statements see sources of international law as treaties, agreements and generally accepted principles and teachings of other highly qualified publicists as the sources of international law.

4. What is custom or customary law? It is a general or consistent practice of states followed by them from a sense of legal obligation. There are two basic elements of custom which are the material factor how states behave and the subjective factor why they behave that way. 5. What are: general principles of law recognized by civilized nations, judicial decisions , teachings of highly qualified writers and publicists and equity, as sources of International Law? The general principles of law recognized by or common to the worlds major legal systems These have reference to principles not of IL but to Municipal law common to legal systems of the world. These principles

areregarded as evidence and have become part of customary law or incorporated in conventional IL. For judicial decisions the general principles are that states are subject to jurisdiction because of their consent to be tried. Also, Article 59 implies that the decisions of the International Criminal Justice are valid only for a particular case. These decisions cannot be used again even though the cases are similar. teachings of highly qualified writers and publicists there are the ones that can assist and be cited regarding decisions of the ICJ. The write IL and they play roles in the Itl Law Commission and others. However, institutions that they play a role on are government sponsored and they can become biased. Equity the general principle is the he who seeks equity must do equity. Equity has procedural and substantive aspect. There are two kinds of equity, intra legem (within the law) which is law adapted from the facts of the case and praeter legem (beyond the law) which fills the gaps within the lawand contra legem (against the law) to apply the law which is seen as unjust.

6. What is the legal definition of a treaty? What is its function/s? Treaty Accdng to Vienna Convention: An intl agreement conluded 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 particular designation. Functions 1. used to transfer territory, regulate commercial relations, settle disputes, protect human rights, guarantee investments and a lot more. 2. creation of norms which are basis for general rule of law (codification treaties/law-making treaties), multilateral treaties = express intention of parties to be bound 3. Collaborative mechanism; organs of the different states = e.g fishing agreements 4. contractual agreements trade 7. Discuss the stages in making a treaty. negotiation, signature, ratification, and exchange of the instruments of ratification

8. Discuss the grounds for invalidating a treaty.

Error of fact: relates to a fact or situation which was assumed by that state to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty Fraud: renders consent defective or affects consent given by a state e.g annulment; induced conduct of another negotiating state; coercion of a representative of a state kapag nagbigay ng threat or force Jus cogens conflicting norm of general intl law; void if at the time of conlusion conflicts with a peremptory norm of general intl law a. Unlawful use of force to the provisions of the Charter b. Contemplating the performance of any other act criminal under intl law c. Treaty conniving with commission of crimes such as slavery, genocide piracy etc. Corruption/duress 9. Can a treaty be terminated or suspended? If so, how? Yes. It can be terminated or suspended according to the terms of the treaty or with the consent of the parties. A treaty may also expire in a definite period. It can also end when the purpose of the treaty has already been achieved. Material breach - unanimous agreement, relations between states and parties, no reservation, violation of a provision Impossibility of performance permanent disappearance or destruction of an object indispensable for the execution of the treaty: something that wont allow you to perform; if temporary suspension only - Hindi pwede kapag sinadya Change of fundamental conditions (rebus sic stantibus) - cannot avoid circumstances which are unforeseen - situation must be fundamental - imperil the existence - radical transformation 10. Is a new state bound by the commitments made by its predecessor? If yes, why? YES. Clean slate rule. A newly independent State is not bound to maintain force, or to become a party to, any treaty was in force in respect of the territory to which the succession of States relates

BUT a new state may agree to be bound CLEAN SLATE DOESNT APPLY TO boundary regimes, territorial regimes

11. How does the dualist tradition resolve conflicts between International Law and Municipal Law? Two legal systems = Article 13 of the Declaration of Rights and Duties of States: every state has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform its duty A state which has violated a provision of IL cannot justify itself by recourse to its domestic law. Intl law has no part in domestic conflicts unless made part of

12. How does International Law become part of domestic law? 2 theories transformation and incorporation Transformation intl law must be transformed into domestic law by the use of appropriate machinery e.g senate decides or the senate reviews Incorporation intl becomes part of the domestic law (phils intl law has force of domestic law) o No additional steps o Can settle domestic disputes (automatic)

13. Before an international tribunal, which law should prevail: International Law or Municipal Law? Why? International Law - a state may not plead its own law as an excuse for failure to comply w/ intl law. Every state has the duty to carry put in good faith its obligations arising from treaties and other sources of intl law and it may not invoke provisions in its constitutions or its law as an excuse for failure to perform its duty Exception- when it is unconstitutional 14. Before a domestic court, which law should prevail: International Law or Municipal Law? Why? - Municipal Law domestic courts are bound to apply the local law

The later law prevails for the US

15. Discuss the elements of a state. People/population community, sharing a common bond of law. No minimum population required Territory entity exercises permanent sovereignty. Can still be a territory even though boundaries arent settled or a foreign power has occupied it or lost control of it (not necessarily) Government institution or aggregate institutions which independent society makes and carries out those rules of action which are necessary to enable men to live in a social state which are imposed upon the people forming that society by those who possess the power or authority of prescribing them Has legal personality = local govt Temporary absence doesnt terminate state existence

16. Discuss the different theories on recognition of states and the consequences of recognition. declaratory theory recognition is merely declaratory; being a state depends upon its it possession of the required elements and not upon recognition o accepts an existing situation constitutive theory recognition constitutes a state that is which makes a state a state and confers legal personality on the entity o emphasizes the point that states are under no obligation to enter into bilateral relations recognition of govts acknowledging the capacity of an entity to exercise powers consequences of recognition o once recognized it gains increased prestige, stability, doors of funding agencies open, loans facilitates, access to foreign courts and immunity from suit are gained, and military and financial assistance o involves highly political judgment o recog of states not same as recog of govt ansd recog of govt doesnt necessarily imply recog of its methods o govts gome and go

17. What are the fundamental rights of a state? 1. Independence

Capacity to provide for its own well being right to exercise functions of the state, free from domination of other states, not to violate their rights etc Jurisdiction over territory Permanent population Self defense Legation Duty not to interfere in internal affairs of other states

2. Equality - Equality of legal rights irrespective of the size or power of the state 3. Peaceful co-existence - Mutual respect for each others territorial integrity and sovereignty, mutual non-aggression, non interference in each others affairs and the principle of equality

18. Discuss some incomplete subjects of International Law. Protectorates states w/c have control over their internal affairs but external affairs are controlled by other states (sometimes referred to as vassal, autonomous, semi-sovereign states) Federal State union of previously autonomous entities. Can give full authority in a central organ or can give authority to individual identities to detriment central organ Mandated and Trust Territories placed by league of nations under one or other of the victorius allies of the WWI - Trusteeship system WWII (replaced mandate system) Taiwan non-state territory - De jure of China The Sovereign Order of Malta used to be controlled by order - Lost - Italian Court of Cassation in 1935 as international personality (recognized) The Holy See and Vatican City 1929 Lateran Treaty recognized state of Vatican City and the Sovereignty of the Holy See - In conformity with traditions and the missions in the world 19. Define briefly the traditional modes of acquiring territory. Classification of acquiring different methods of acquiring territory comes from Roman rules of acquiring property. Traditional modes 1. Discovery a territory must be unoccupied to discover it

2. Occupation acquisition of terra nullius which is a territory prior to occupation belongs to no state which may have been abandoned by a prior occupant 3. Prescription acquiring sovereignty over territory. It requires effective control 4. Cession acquisition of territory through treaty a. Invalid once imposed by the conqueror de facto 5. Conquest taking possession through armed force; there must be an indication that war had ended and all resistance have been abandoned a. Conqueror must intend to acquire and not temporarily occupy 6. Subjugation same as conquest almost 7. Accretion increase of territory through nature/ by action of nature; sudden change for example through the eruption of a volcano 20. Discovery of terra nullius is not enough to establish sovereignty. It must be accompanied by effective control. Defend this statement. A state must be able to exercise activities in a state. Territorial sovereignty involves the exclusive right to display the activities of a state. It must have an outcome of duty, obligation to protect within the territory the rights of other states, in particular their right to integrity and inviolability in peace and in war, together with the rights w/c each state may claim for its rights in foreign territory. 21. What is the present rule/s governing air navigation? Each state has exclusive jurisdiction over the air space above its territory. Consent of transit must be obtained from the subjacent nation Article 1: Sovereignty o States have Sovereignty over airspace above territory Article 2: Territory o Land areas and territorial waters adjacent Article 3: Civil and state aircraft: o Only applicable to state aircraft o Military, police, customs services as state o No state aircraft must fly over otherwise if it has a consent or agreement o Contracting states have the responsibility of safety Article 4: Misuse of civil navigation o No state aircraft must fly over o Non-scheduled and scheduled flights Article 5: Right of non-scheduled flights

o Have right not to obtain permission given that is not engaged in scheduled international air services o Can take or discharge passengers Article 6: Scheduled Air Services no scheduled int; service may be operated over a territory of a contracting state except with special permission Article 7: Cabotage each contracting state has the right to refuse permission to the aircraft of to other contracting states on in its territory passengers, mail and cargo carried for renumeration or hire and destined for another point within its territory.