[PIL] LESSON 1

• Historical development of international law

  • Treaty of Westphalia
  • Hugo Grotius and Alberico Gentili (16th century) characterized international law as municipal law writ large
  • First major peace summit (Congress of Vienna, 1814 - 1815) following the Napoleonic wars
  • Treaties establishing rules for navigation of rivers (1815), establishing the neutrality of Switzerland (1831) and Belgium (1831), the first codified law on maritime warfare (Declaration of Paris, 1856) and the Kellogg-Briand Pact (1928)
  • The term International Law was formerly used by Jeremy Bentham in 1870
• Traditional definition of international law

  A body of rules and principles of action which are binding upon civilized states in their relations with one another
• Schwarzenberger's definition of international law

  The body of legal rules which apply between sovereign states and such other entities as have been granted international personality
• Modern definition of international law

  The law that deals with conduct of states and international organizations, their relations with one another, and, in certain circumstances, their relations with persons
• Divisions of international law

  • Law of Peace
  • Law of War
  • Law of Neutrality
• Differences between public international law and private international law

  • As to nature: International not municipal
  • As to remedies: International modes not local tribunals
  • As to parties: International entities not private persons
  • As to enforcement: International sanctions not local sheriff/police
• Private international (or conflict of laws) is not really a branch of international law dealing with disputes that arise from private transactions between individuals or companies or corporations from one country vis-à-vis their counterparts in another country
• Differences between international law and municipal law

  • International law is not imposed upon but simply adopted by states as a common rule of action, while municipal law is issued by a political superior for observance by those under its authority
  • International law is derived not from any particular legislation but from sources as international custom, international conventions, and the general principles of law, while municipal law consists mainly of enactments from the law-making authority of each state
  • International law applies to the relations inter se of states and other international persons, while municipal law regulates the relations of individuals among themselves or with their own states
  • Questions of international law are resolved through state-to-state transactions ranging from peaceful methods like negotiations and arbitrariness like reprisals and even war, while violations of municipal law are redressed through local administration and judicial process
  • Responsibility of infraction of international law is usually collective in the sense that it attaches directly on the state and not to its nationals, while breaches of municipal law generally entail only individual responsibility
• Theories in adopting international law as part of the local state

  • Doctrine of Incorporation: International laws are adopted as part of a state's municipal law, by affirming their recognition of the principles of international law in their constitutions
  • Doctrine of Transformation: Generally accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted by the law-making body and so transformed into municipal law
• To attempt to reconcile the apparent contradiction and thereby give effect, if possible, to both systems of law (international law and municipal law)
• It should be presumed that municipal law is always enacted by each state with due respect for and never in defiance of the generally accepted principles of international law
• Generally, the treaty is rejected in the local forum but is upheld by international tribunals as demandable obligation of the signatories under the maxim pacta sunt servanda (agreement must be kept)
• The position of the Philippines regarding the relationship between constitution and treaty is clear enough. There can be no doubt as to the meaning of our constitution when it authorizes the SC to decide, among others, all cases involving the constitutionality of "any treaty, international or executive agreement, law..."
• Basis of international law

  • Naturalist school of thought: There is a natural and universal principle of right and wrong, independent of any mutual intercourse or compact, which is supposed to be discovered and recognized by every individual through the use of his reason and his conscience
  • Positivists: The binding force of international law is derived from the agreement of sovereign states to be bound by it
  • Eclectics or Grotians: Both the law of nature and the consent of states as the basis of international law
• Functions of international law

  • Belief shared by many states in the inherent reasonableness of international law and their common conviction that its observance will redound to the welfare of the whole society of nations
  • Normal habits of obedience ingrained in the nature of man as social being
  • Respect for the world opinion held by most states, or their desire to project an agreeable public image in order to maintain the goodwill and favorable regard of the rest of the family of nations
  • The constant and reasonable fear, present even in the most powerful states, that violation of international law might visit upon the culprit the retaliation of other states
  • The machinery of the UN which, within the sphere of its limited powers, has on many occasions proved to be an effective deterrent to international disputes caused by disregard of the law of nations