Midterms PIL

8/12/2019 Midterms PIL

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International law and sources of International

LawWhat is international law?

Classical definition: It is a body of rules and principles of action which are binding upon civilized states in their relationsto 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 lawPIL 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 sources1. 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 thecontesting 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


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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 o

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 fairnessthat equity overrides all other rulesof 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.


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Elements of jus cogens:1. a norm accepted and recognized by2. the international community of states as a whole3. no derogation is permitted4. which can only be modified by a subsequent norm having the same character.

International Law and Municipal LawExplain dualism and monism in relation to municipal or domestic lawDualism 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 o

IL into municipal law and need for ILstransformation 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 ofmonism tend to fall to two categories: either that international law prevails (Kelsen) or domestic law supersedes

international law (Lauterpacht).

Subjects of International LawSubjects 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 internationaarena, albeit the predominance of states as the actors that possess the fullest personality.

StatesAccording 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 OrganizationsInternational 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.


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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,consistingof its

terrestrial, fluvial and aerial domains, includingits territorial sea, the seabed, the subsoil, the insular shelves and othersubmarine 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 discoveryand 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 avulsionAccretion 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.


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Intertemporal Law

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

Right to Self-determination

--

AirspaceEach 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.

JurisdictionJurisdiction 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 beachieved by means of legislative, executive or judicial action. Jurisdiction may be based on the following recognized

grounds:

1. territoriality principle2. nationality principle3. protective principle4. universality principle5. passive personality principle


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Territoriality PrincipleA 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 ove

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 PrincipleThe 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 PrincipleA 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, requireauthority 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 PrincipleThis principle asserts that a state may apply lawparticularly criminal lawto 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 theyjourney outside national boundaries.

Conflicts of jurisdictionUS courts have developed the following modes to resolve conflicts of jurisdiction:

1. The Balancing TestIn Timberlane Lumber Co. v. Bank of America, the issue was whether to assume jurisdictionin a case involving acts emanating from Honduras. The court employed a tripartite analysis as follows:


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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 ComityEven when a state has basis for exercising jurisdiction, it will refrain from doing so it itsexercise 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; ande. the likelihood of conflict with regulation by another state.

1. Forum non conveniensIf in the circumstances of the case, it be discovered that there is a real unfairness toone 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 witnessesiii. 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 homeiii. having the case tried in a forum at home with the applicable law.

EXTRADITIONExtradition 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; and3. Religious and political offenses are not extraditable.

The procedure for extradition is normally through diplomatic channels.

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