2016 10896 Part 6 Nachura Public International Law PDF

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PUBLIC INTERNATIONAL LAWGeneral PrinciplesA. International Law definedTraditional Modern Branch of public law w/c: Regulates relations of States & of other entities granted int’l personality. [This def’n focuses on subjects w/c are entities possessing: int’l personality & w/ rights &...

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PUBLIC INTERNATIONAL LAW

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General Principles A. International Law defined Traditional Branch of public law w/c: Regulates relations of States & of other entities granted int’l personality. [This def’n focuses on subjects w/c are entities possessing: - int’l personality & - w/ rights & obligations recognized under international law, As against objects w/c are persons or things in w/c rights are held & oblig assumed by the subjects of int’l law]

Modern Law w/c deals w/: - Conduct of States & int’l org - Their relations w/ each other - & their relations w/ persons, natural or juridical

B. Basis of Int’l Law Law of Nature School -natural & universal principle of right & wrong -independent of mutual intercourse/ compact w/c can be discovered & recognized by every indiv. through the use of his reason & conscience.

Possitivist School -Binding force of int’l law: derived from agreement of States to be bound by it. -int’l law is not a law of subordination but coordination

Ecletic or Groatian School -conforms to the dictates of right reason -the voluntary law may be said to blend w/ the natural law & be an expression of it -in case of conflict, the natural law prevails, being the more fundamental law

C. Public International Law distinguished from: Private In’t Law A. As to nature: Int’l vs. municipal B. As to remedies: Int’l modes vs. local tribunals C. As to parties: Int’l entities vs. private persons D. As to enforcement: Int’l sanctions vs. sheriff/ police

Int’l Morality/Ethics Govern relations of States from the standpoint of a. Conscience b. Morality c. Justice d. Humanity

D. Int’l Law as true law 2

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Int’l Comity Rules of politeness/courtesy observed by States in their relations w/other States

Int’l Diplomacy -objects of: a) int’l policy & b) conduct of foreign affairs

Int’l Admin. Law Regulates relations & activities of: a)nat’l & b)int’l agencies w/respect to their: a)material & b)intellectual interests w/c have received int’l recognition

Although it may not comply w/John Austin’s concept of law, i.e., enforced by sovereign political authority, nonetheless it is still a true law Application, enforcement, & compliance. Absence of a central law-making authority & the jurisdictional defects,weaken the expectation of compliance in comparison w/ the situation in the domestic plane. These considerations are, however, balanced by the risk of political/ economic retaliation & other sanctions such as a. adverse public opinion b. retorsions c. reprisals d. the UN machinery e. conviction that obedience will redound to the public good

E. Relationship w/ Municipal Law (ML)

Monist No substantial distinction between int’l law & municipal law. (oo eto lang to)

Dualist ML - issued by a political superior for observance by those under its authority consists of enactments of lawmaking authority

IL - not imposed but adopted by states as a common rule of action - derived from such sources as int’l customs, conventions or gen. principles of law -relations between states & int’l persons -redressed through state-to-state transactions

- regulates relations of indiv. among themselves -violations are redressed through local judicial & administrative -collective processes -breaches entail indiv responsibility responsibility

Doctrine of Incorporation Expressed in S2 Art2 “The Phils. Renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land & adheres to thepolicy of peace…”

Doctrine of transformation Requires the enactment by the legislative body of such int’l law principles as are sought to be part of municipal law

Conflict between International Law & Municipal Law On the domestic sphere, w/a local court deciding a) if conflict is w/Consti: 3

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International sphere, w/an int’l tribunal deciding International law is superior to municipal law,

uphold Consti b) if conflict is w/statute: doctrine of incorporation decrees that rules of int’l law are given equal standing w/, but not superior to national legislative enactments. A treaty may repeal a statute & a statute may repeal a treaty; thus, the principle of lex posterior derogate priori, that w/c comes last in time, will usually be upheld by the municipal tribunal

because int’l law provides the standard by w/c to determine the legality of a State’s conduct.

F. Sources of Int’l Law

Domestic sphere Constitution, legislative enactments, & case law (stare decisis).

International Plane It’s complicated (hiyess!) because there is no body likened to a nat’l legislature, no fundamental law, & the doctrine of precedents is not applicable.

However, most authoritative enumeration is found in Art. 38, Statute of the Int’l Court of Justice w/c provides that the Court, whose function is to decide in accordance w/ Int’l Law such disputes as are submitted to it, shall apply: PRIMARY SOURCES 1. International Treaties & conventions The Rome Statute - Signed July 17, 1998 - Effective July 1, 2002 - Based on the principle of complementarity - Made Philippines part of the International Criminal Court. It is a modern initiative and rather ambitious because an individual can be tried therein and he cannot invoke immunity. - No Retroactivity - Gives primacy to local courts - No Death Penalty 2. International Customs -

Prevailing practice Repeated over considerable period of time Opinio Juris

3. General Principles of law -

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Natural Law Observed and Organized

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To these may be added the principle of ex aequo et bono (what is good & just), provided that the parties to the dispute agree thereto, as provided in Art. 38 (1) Statute of the International Court of Justice

Interpretation of Art. 38 - Although the provision is silent on the question of whether the 3 primary sources have the same hierarchic value, by practice, treaties take precedence over customs, & customs over general principles of law, except: The principle of jus cogens – customary int’l law w/c w/c has a status of peremptory (absolute, uncompromising, certain) norm of int’l law. Peremptory norm- accepted & recognized by int’l community of states as a rule from w/c no derogation is permitted, & w/c can be modified only by a subsequent norm having the same character. Ex. slave trade, piracy & terrorism SECONDARY SOURCES 1. Judicial decisions – ICJ. Whether the norm has been accepted as a rule of international law. 2. Writings of publicists – Fair and unbiased representation of international law by acknowledged authorities in the field.

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Subjects of International Law A. Distinction between subject & object of international law Subject An entity that has rights & responsibilities under int’l law; Can be a proper party in transactions involving the application of the law of nations among members of the int’l community. Includes: States, colonies, & dependencies, mandates & trust territories, the Holy See (Vatican City), the UN, belligerent communities, international administrative bodies, & to a certain extent, individuals.

Objects A person or thing in respect of w/c rights are held & obligations assumed by the subject; Not directly governed by the rules of int’l law; It’s rights are received, & its responsibilities imposed, indirectly through the instrumentality of an int’l agency.

B. States Group of people living together in a fixed territory, organized for political ends under an independent government, & capable of entering into int’l relations w/ other states. ELEMENTS a. b. c. d.

People- both sexes, sufficient in number to maintain & perpetuate themselves Territory- fixed portion on the earth’s surface Govt- organized, w/ ctrl over & capable of maintaining law & order w/in the country Sovereignty/ independence- freedom from outside ctrl in the conduct of its foreign (&internal affairs)

Other suggested elements of a state: a. civilization b. recognition- wherein state acknowledges the existence of another state, gov’t, or belligerent community & indicates its willingness to deal w/ the entity as such under int’l law. THEORIES ON RECOGNITION: A. Constitutive (majority view) - Recognition is the act w/c constitutes the entity into an int’l person. - Recognition is compulsory & legal; may be compelled once the elements of a state are established B. Declarative (majority view)Recognition merely affirms an existing fact, like the possession by the state of essential elements. It’s discretionary & political BASIC RULES ON RECOGNITION 6

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A. B. C. D.

It’s a political act Discretionary on the part of recognizing authority Exercised by political (executive) department of state Legality & wisdom- not subject to judicial review

REQUIREMENTS FOR RECOGNITION OF GOV’T 1. 2. 3. 4.

Gov’t is stable & effective, w/no substantial resistance to its authority Gov’t must show willingness & ability to discharge int’l oblig. Gov’t must enjoy popular consent or approval of the people

Tobar/ Wilson Doctrine Stimson Doctrine Precludes recognition of any No recognition of a gov’t gov’t established by established through external revolutionary means until aggression constitutional reorganization by free election of representatives

Estrada Doctrine Since recognition has been construed as approval (& nonrecognition, disapproval) of gov’t established through judicial upheaval, a state may not issue a declaration giving recognition to such gov’t, but merely accept whatever gov’t is in effective control w/o raising the issue of recognition. Dealing or not dealing w/the gov’t is not a judgment of legitimacy of the said gov’t

KINDS OF RECOGNITION De facto -Extended by the recognizing state w/c believes that some of requirements for recognition are absent. -Recognition is generally provisional and limited to certain juridical relations. -Does not bring about full diplomatic intercourse & does not give title to assets of the state held/ situated abroad De Jure -Extended to gov’t fulfilling requirements for recognition -when there’s no specific indication, recognition is generally considered de jure -relatively permanent -brings about full diplomatic intercourse & observance of diplomatic immunities, & -confers title to assets abroad EFFECTS OF RECOGNITION -diplomatic relations -right to sue in courts of recognizing state -immunity from jurisdiction -entitlement to property w/in the recognizing state

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-retroactive validation of the acts of the recognized state/govt, such as acts of state and thus, sovereign immunity covers past, present & future acts RECOGNITION OF BELLIGERENCY; CONDITIONS 1. 2. 3. 4.

Organized civil gov’t having ctrl & supervision over the armed struggle Serious & widespread struggle w/uncertain outcome Occupation of substantial portion of the nat’l territory Willingness of rebels to observe to observe rules of war

EFFECTS OF RECOGNITION OF BELLIGERENCY Responsibility for acts of rebels resulting in injury to nationals of the recognizing state shall be shifted to the rebel gov’t; Legitimate gov’t recognizing the rebels shall observe the laws of war in conducting hostilities Third states recognizing the belligerency shall maintain neutrality, and Recognition is only provisional (for the duration of the armed struggle) & only for the purpose of hostilities CREATION OF STATES 1. 2. 3. 4. 5. 6.

Revolution Unification Secession Assertion of independence Agreement Attainment of civilization

PRINCIPLE OF STATE CONTINUITY State- continues as a juristic being notwithstanding changes in its circumstances, provided only that such changes do not result in loss of any of its essential elements

Consequences

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Succession of States

Succession of Governments

Political laws are abrogated while municipal laws remain in force - Treaties are discontinued, except those dealing with local rights and duties such as those establishing easements and servitudes - All rights of predecessor state are inherited but successor state can assume and reject liabilities at its discretion

Rights of predecessor government are inherited by successor - Where the new government was organized by virtue of constitutional reform ratified in a plebiscite, all obligations of the predecessor are likewise assumed, however, where the new government established through violence, the new government may lawfully reject purely personal or political obligations of the predecessor, but not those obligations contracted by it in the ordinary course of official business.

CLASSES OF STATES A. INDEPENDENT Has freedom to direct & ctrl foreign relations w/o restraint from other states. May be: Single Composite Single central gov’t, w/power over internal 2/ more sovereign states joined together to & external affairs constitute 1 international person, w/c may be: Real union Federal union 2/more states sre Combination of 2/more states w/c merged under a uponmerger, cease to unified authority so be states, resulting in that they form a the creation of a new single international state w/full int’l person through w/c personality to they act as 1 entity. represent them in The sy=tates retain their external their separate relations as well as a identities, but their certain degree of respective power over their international domestic affairs & personalities are their inhabitants. extinguished & Authority over blended in the new international affairs: int’l person, divided between e.g., the former United Arab Republic, federal authorities & the member-states; w/Egypt & Syria. Authority over external affairs: handled solely by federal authorities

B. DEPENDENT An entity w/c although theoretically a state, does not have full freedom in the direction of its external affairs, such as a protectorate (w/c is established at request of weaker state for the protection by a strong power) or a suzerainty(result of a concession from a state to a former colony that’s allowed to be independent subject to the retention by the former sovereign of certain powers over the external affairs of the latter. E.g., Bulgaria & Rumania, both suzerainties of the Sultan of Turkey by virtue of Treaty of Verlin) C. NEUTRALIZED Independence & integrity are guaranteed by an int’l treaty on the condition that such state obligates itself never to take up arms against another (except self-defense), or to enter into an int’l obli. as would indirectly involved it in war, e.g., Switzerland, Austria

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Vatican city & the Holy See Holy See- has all constituent elements of statehood (people: less than 1000 individuals; territory: 108.7 acres; gov’t w/the Pope as head; & independence by virtue of Lateran Treaty of 1929 w/c constituted Vatican as a territory under sovereignty of Holy See) It has all the rights of the state, including diplomatic intercourse, immunity from foreign jurisdiction, etc D. Colonies & Dependencies COLONY Dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit another country but remain subj of mother state

DEPENDENCY Territory distinct from the country in w/c supreme sovereign power resides, but belongs rightfully to it, &subject to laws & regulations w/c sovereign may prescribe.

E. Territories under Int’l court / supervision Non-self-governing territories placed under int’l supervision/ctrl to insure their political, eco, soc & educ advancement. Ex. mandates w/c are former territorial possessions of the states defeated in World War I & placed under the control of League of Nations. Many of these mandates became trust territories placed under the trusteeship council of the UN F. The United Nations 1. Historical development. 2. UN charter - Closest to Consti. Governs relations of int’l persons. -Technically a treaty, a contract under doctrine of pacta sunct servanda although it actually applies even to non-member states, at least in so far as “may be necessary for maintenance of international peace & security” Amendment: a. 2/3 vote of GA mem & ratified by 2/3 of UN members. b. General conference called by majority vote of GA & any 9 members of Security Council (SC), may propose amendments by a 2/3 vote of the conference & shall take effect when ratified by 2/3 of UN mem Purpose: Prevention of war, maintenance of int’l peace & security, dev’t of friendly relations among the members of int’l community, int’l cooperation, harmony of actions of nation 3. Membership: Classes Original or Elective Qualification Member must be a state, peace loving, accept the obligation under the charter and be able and willing to carry out these obligations Admission Decision of 2/3 of those present and voting in the GA upon recommendation of at least 9 members of the Security Council Suspension Same vote as admission. Suspended member cannot participate in GA meetings. Can’t be elected to or continue to serve in the Security council, Economic and 10

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Expulsion Withdrawal

social Council, Trusteeship council but nationals may continue the secretariat and the ICJ although a member is still subject to discharge its obligation under the charter. To lift the suspension, a qualified majority vote of the Security Council is needed. 2/3 vote of those present and voting in GA upon recommendation of qualified majority of SC on grounds of persistently violating principles in the charter No provision on withdrawal, although there is actually no compulsion for continued membership if the member feels constrained to withdraw due to exceptional circumstances

4. Organs: A. General Assembly- consists of all members of organization, each of w/c is entitled to send not more than 5 representatives & 5 alternates. Each member only has 1 vote. Functions: 1. Deliberative 2. Supervisory 3. Financial 4. Elective 5. Constituent B. Security Council - key organ in maintenance of int’l peace & security. .

Functions: 1. Maintain in’t peace & security 2. Investigate disputes & call disputants to settle their differences through peaceful means 3. Recommend methods of adjustment of disputes 4. Determine existence of threats to peace, breach of peace, acts of aggression, & make appropriate recommendations 5. Undertake preventive & enforcement actions

Preventive action Enforcement action Provisional measures to prevent a conflict from Deployment of air, sea, and land forces, or worsening in the Institution of a blockade. Domestic jurisdiction clause - SC may take necessary steps for settlement of disputes including preventive or enforcement action. The only limitation is that the dispute must be international, not domestic in character.

C. Economic & Social Council Composed of 54 members elected by GA for a 3yr term. Shall exert efforts towards higher standards of living, conditions of economic & social progress & dev’t, solutions of int’l economic, soc, health & related problems D. Trusteeship Council

Duty of assisting SC & GA in administration of Int’l Trusteeship system. 11

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E. Secretariat Chief administrative organ of UN. Headed by sec gen chosen by GA upon recommendation of SC. Sec Gen- highest rep of UN & is authorized to act in its behalf; his staff are also international civil servants, & can’t receive instructions from any gov’t or source outside the UN. He also enjoys right of political initiat...