[PIL] MIDTERM EXAM

• Historical Development of International Law


  • Treaty Of Westphalia
  • Hugo Grotius and Alberico Gentili (16th Century)
  • Congress of Vienna, 1814-1815
  • Declaration of Paris, 1856
  • Kellogg-Briand Pact (1928)
  • Jeremy Bentham (1870)
• Traditional Definition of International Law

  A body of rules and principles of action which are binding upon civilized states in their relations with 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 the conduct of States and International Organizations, their relations with each other and, in certain circumstances, their relations with persons
• Divisions of International Law


  • Laws of peace
  • Laws of war
  • Laws of neutrality
• Laws of peace govern the normal relations of states
• Laws of war govern the relations between hostile or belligerent states during wartime
• Laws of neutrality govern the relations between a non-participant state and a participant state during wartime, as well as the relations among non-participating states
• 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 Conflicts of Laws) is not really a branch of international law, but deals 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

  • Monists: No substantial distinction between international law and municipal law, international law must prevail
  • Dualists: Domestic and international law are independent of each other, no conflict can ever arise because the 2 systems are mutually exclusive
• The Philippines is a dualist state
• Differences between Municipal Law and International Law


  • Municipal Law: Issued by a political superior, consists of enactments, regulates relations of individuals, violations redressed through local process, breaches entail individual responsibility
  • International Law: Not imposed but adopted by states, derived from custom/conventions/principles, applies to relations of states/international persons, questions resolved through state-to-state transactions, responsibility is collective on the state
• Theories on Adopting International Law as Part of Local Law


  • Doctrine of Incorporation: International laws are adopted as part of municipal law by affirming their recognition in the constitution
  • Doctrine of Transformation: Generally accepted rules of international law must first be embodied in local legislation
• To resolve conflicts between international law and municipal law, the attempt should be to reconcile the contradiction and give effect to both systems if possible, presuming municipal law is enacted with respect for international law
• In the Philippines, the constitution authorizes the Supreme Court to decide cases involving the constitutionality of any treaty, international or executive agreement, or law
• Bases of International Law


  • Naturalist school: There is a natural and universal principle of right and wrong
  • Positivists: Binding force derived from agreement of sovereign states
  • Eclectics or Grotians: Both law of nature and consent of states
• Sanctions of International Law


  • Belief in the reasonableness of international law and shared conviction of its benefits
  • Habit of obedience ingrained in the nature of states as social beings
  • Respect for world opinion and desire to maintain goodwill
  • Fear of retaliation from other states
  • Machinery of the UN as a deterrent
• Functions of International Law


  • Establish peace and order in the community of nations
  • Promote world friendship by levelling barriers
  • Encourage international cooperation on common problems
  • Provide for orderly management of state relations
• In the domestic sphere, the constitution, legislative enactments, and case law constitute the sources of law, but it is more complicated in the international sphere with no legislature or constitution
• Primary/Direct Sources of International Law


  • Treaties/conventions
  • International customs
  • General principles of law recognized by civilized nations
• Secondary/Indirect Sources of International Law

  • Decisions of courts
  • Writings of publicists
• The doctrine of stare decisis (precedent) is not applicable in international law
• International Community


  The body of juridical entities which are governed by the law of nations, composed not only of states but also other international persons
• Subjects of International Law


  • States
  • Colonies and dependencies
  • Mandates and trust territories
  • The Holy See (Vatican City)
  • The United Nations
  • Belligerent communities
  • International administrative bodies
  • Individuals
• Object of International Law


  The person or thing in respect of which rights are held and obligations assumed by the subject
• Elements of a State


  • Permanent population
  • Defined territory
  • Government
  • Capacity to enter into relations with other states
• Classification of States


  • Independent States: Simple States, Composite States
  • Neutralized States
• Sovereignty


  Independence, freedom from outside control in the conduct of foreign and internal affairs
• Independent states


  • Not subject to dictation from others in their foreign affairs
• Types of states


  • Simple states
  • Composite states
  • Neutralized states
  • Dependent states
• Simple state


  Placed under a single and centralized government exercising power over both its internal and external affairs
• Composite state


  Two or more states, each with its own separate government but bound under a central authority exercising control over their external relations
• Neutralized state


  An independent state, whether simple or composite, that has its integrity and independence guaranteed by other states provided it refrains from hostile activity except for defensive purposes
• Dependent state


  An entity which does not have full freedom in the direction of its external affairs, falling into two categories: protectorate and suzerainty
• Real union


  Two or more states merged under a unified authority to form a single international person
• Federal union


  A combination of sovereign states which upon merger cease to be states, resulting in the creation of a new state with full international personality to represent them in external relations and power over domestic affairs
• Confederation


  An organization of states which retain their internal and external sovereignty while delegating power to the collective body for certain limited purposes
• Personal union


  Two or more independent states brought together under the rule of the same monarch, who does not become one international person representing them
• Incorporate union


  Two or more states under a central authority empowered to direct both their external and internal affairs and possessed of a separate international personality