PUBLIC INTERNATIONAL LAW ASSIGNMENT

1. DEFINE INTERNATIONAL LAW

a. International Law is the body of legal rules which apply between sovereign states and such other entities as have been granted international personalityb. A body of rules and principles of action which are binding upon civilized states in their relations with one another

2. BASIS OF INTERNATIONAL LAWThree theories on this matter:

a. The Naturalist under this theory, there is a natural and universal principle of right and wrong, independent of any mutual intercource or compact, which is supposed to be discovered and recognized by every individual through the use of his reason and his conscience.

b. The Positivist under this theory, the binding force of international law is derived from the agreement of sovereign states to be bound by it. It is not a law of subordination but of coordination.

c. The Eclectics or Groatians this theory offers both the law of nature and the consent of states as the basis of international law. It contends that the system of international law is based on the dictate of right reason as well as the practice of states.

3. DISTINGUISH PUBLIC AND PRIVATE INTERNATIONAL LAWDistinction of Public International Law with Municipal Law

Municipal LawPublic International Law

1. Issued by a political superior for observance by those under its authority;

2. Consists mainly of enactments from the law-making authority of each state;

3. Regulates the relations of individuals among themselves or with their own states;

4. Violations are redressed through local administrative and judicial processes; and,

5. breaches generally entail only individual responsibility.

1. Not imposed upon but simply adopted by states as a common rule of action among themselves;

2. derived not from any particular legislation but from such sources as international customs, international conventions and the general principles of law;

3. Applies to the relations inter se of states and other international persons;

4. Questions are resolved through state-to-state transactions ranging from peaceful methods like negotiation and arbitration to the hostile arbitrament of force like reprisals and even war; and,

5. responsibility of infractions is usually collective in the sense that it attaches directly to the state and not to its nationals.

4. DEFINE DOCTRINE OF INCORPORATIONDoctrine of Incorporation the rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. (Sec. of Justice v. Lantion GRN 139465, Jan. 18, 2000)

This doctrine is followed in the Philippines as embodied in Art. II, Sec. 2 of the 1987 Constitution which provides that: The Philippinesadopts the generally accepted principles of international law as part of the law of the land However, no primacy is implied.

It should be presumed that municipal law is always enacted by each state with due regard for and never in defiance of the generally accepted principles of international law. (Co Kim Chan v. Valdez Tan Keh).

It is a settled principle of international law that a sovereign cannot be permitted to set up his own municipal law as a bar to a claim by foreign sovereign for a wrong done to the latter's subject. (US v Guatemala).

5. DEFINE DOCTRINE OF TRANSFORMATION

a. The generally accepted rules of international law are not per se binding upon the state but must first be embodied in the legislation enacted by the lawmaking body and so transformed into municipal law. Only when so transformed will they become binding upon the state as part of its municipal law.

Art. VII, Sec. 21 of Phil. Constn: No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all members of the senate.

b. The doctrine of transformation is based upon the perception of two distinct systems of law operating separately, and maintains that before any rule or principle of international law can have any effect within the domestic jurisdiction, it must be expressly and specifically 'transformed' into municipal law by the use of the appropriate constitutional machinery. This doctrine grew from the procedure whereby international agreements are rendered operative in municipal law by the device of ratification by the sovereign and the idea has developed from this that any rule of international law must be transformed, or specifically adopted, to be valid within the internal legal order. Another approach, known as the doctrine of incorporation, holds that international law is part of the municipal law automatically without the necessity for the interposition of a constitutional ratification procedure.

6. WHICH PREVAILS, INTERNATIONAL LAW OR MUNICIPAL LAW?

CONFLICT BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW: INTERNATIONAL RULEBefore an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law Exception: Art. 46 of Vienna Convention = in cases where the constitutional violation was manifest and concerned a rule of its internal law of fundamental importanceManifest = objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith CONFLICT BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW: MUNICIPAL RULEDomestic courts are bound to apply the local lawShould a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic lawArt. 8, Sec. 5 of the Constitution explicitly recognizes the power of the Supreme Court to declare a treaty unconstitutional; however, even if declared unconstitutional, the treaty will not lose its character as an international law

7. SOURCES OF INTL LAW PRIMARY AND SECONDARY

A. Primary Sources: 1. Treaties- The general rule is that for a treaty to be considered a direct source of international law, it must be concluded by sizable number of states and thus reflect the will or at least the consensus of the family of nations.

2. Custom- A practice which has grown up between states and has come to be accepted as binding by the mere fact of persistent usage over a long period of time. Custom is distinguished from usage. The latter while also a long established way of doing things by states is not coupled with the conviction that it is obligatory and right.

3. General Principles of Law- Mostly derived from the law of nature and are observed by the majority of states because they are believed to be good and just (e.g. prescription, estoppel, consent, res judicata and pacta sunt servanda).

B. Secondary Sources: These sources are not authorities in deciding a case but only have a persuasive effect because it only shows the interpretation of a state to a particular international law. 1. Decisions of international tribunals 2. Writings and teachings of the most highly qualified publicists

8. PACTA SUNT SERVANDAPacta Sunt Servanda international agreements must be performed in Good Faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties. A state which has contracted a valid international obligation is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.

The Philippine Constitution however contains provisions empowering the judiciary to annul treaties thereby establishing the primacy of the local law over the international agreement.

Art. X, Sec. 2(2) provides that all cases involving the constitutionality of any treaty, executive agreement or law shall be heard and decided by the Supreme Court en banc, and no treaty, executive agreement or law may be declared unconstitutional without the concurence of ten justices.

The Constitution authorizes the nullification of a treaty not only when it conflicts with the Constitution but also when it runs counter to an act of Congress. (Gonzales v. Hechanova).

9. SANCTIONS OF INTERNATIONAL LAW

Sanctions the compulsive force of reciprocal advantage and fear of retaliation.

1. The inherent reasonableness of international law that its observance will redound to the welfare of the whole society of nations;

1. The normal habits of obedience ingrained in the nature of man as a social being;

1. To project an agreeable public image in order to maintain the goodwill and favorable regard of the rest of the family of nations;

1. The constant and reasonable fear that violations of international law might visit upon the culprit the retaliation of other states; and,

1. The machinery of the United Nations which proves to be an effective deterrent to international disputes caused by disregard of the law of nations.

10. READ PAGE 1-44 BOOK OF CRUZ. HAHA!