Session 4 SPIL

MIDTERMS REVIEW
Article 38(1):Sources of International Law
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, [.e. that only the parties
bound by the decision in any particular case,] 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.
International Convention/Treaty
•Parties
◦State-Party
◦Signatory
◦Ratified
◦Specially Affected States
◦Persistent Objector
International Convention/Treaty
•Obligation
oBinding or not
oRights created
oPacta sunt servanda
International Convention/Treaty
•Supporting documents
oTravaux preparatoires
oGeneral comments
oOfficial report
International Convention/Treaty
•Nuclear Ban Treaty
•International Covenant and Civil and Political Rights (ICCPR)
Treaty vs. Custom
Who prevails?
◦Non-signatory: Custom
◦Signatory: Treaty
Treaty vs. Treaty
Who prevails?
◦Both are signatories: later treaty
◦Only one is a signatory: former treaty
Customs
•Duration
• No numerical requirement
•Uniformity and consistency of practice
• virtual uniformity
•Generality
• Majority of “specially affected states”
•A sense of legal obligation or Opinio Juris et necessitates
General Principles of Law
•Principles of municipal law common to the legal systems of
the world.
•Example: estoppel and due process of law
Subsidiary Sources
•Judicial Decisions
• No stare decisis
•Most Highly Qualified Publicist (MHQP)
•Published
•Recognized as an expert in the field of international law
she is writing about
Extradition
•Sui generis
•Not customary
•Bail is not a matter of right
• Flight risk
• Special, humanitarian and compelling circumstances
•Requirements
• Bilateral treaty law
• Double criminality
Extradition vs. Deportation
Extradition Deportation
Concerned with the transfer Purpose is to expel
of an individual to a specified unwanted immigrants. It has
foreign state so that he may no preference as to the
be prosecuted there destination of the individual
Aliens and nationals Aliens only
Arises from the request of a Unilateral act of a deporting
foreign state state
Right to Privacy (International)
• United Nations Universal Declaration of Human Rights
•International Covenant on Civil and Political Rights
•Supporting
•Travaux preparatoires
•General Comments
•UN CHR Reports
Right to privacy (Local)
• 1987 Philippine Constitution
• Civil Code
• Revised Penal Code
• Rules of Court
• Data Privacy Act of 2012
International Law vs. Municipal Law
Who prevails?
International Law Municipal Law
Monist x
Dualist x
International Law vs. Municipal Law
Doctrine of Incorporation Doctrine of Transformation
By mere constitutional Requires that
declaration, international an international law be
law is deemed to have the transformed into a domestic
force of domestic law. law through a constitutional
mechanism such as local
legislation
Subjects of International Law
•States
•International Organization
Others
•ICC
•Genocide
•Crimes against humanity
•War crimes
•Crimes of aggression